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THERE ought to be a considerable influx of European
nobility to America after Prince Henry reports. He will
certainly assure them that there is nothing like the cow boy
hospitality, on the face of the earth.



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166 THE BAR



•AU Abont HeU«'



THIT is a very warm title to an equally warm topio.
It attracted our attention on the title page of a
pamphlet bound in a red cover.

The publishers sent it to Thb Bab with the request that we
should review it and send them a marked copy of our
comments.

A pamphlet so uniquely constructed and so suggestively
entitled could not be consigned to the waste-basket without an
involuntary moment of serious contemplation.

The first impression that arises on inspection of such a
publication is that ''Hell" is a very old topic— one that has
been very seriously and solemnly discussed for nineteen
hundred years— one that has been the theme of many
thunderous and hair-raising pulpit fulminations — one that has
disturbed the peace and tortured the conscience of the
evil-doer through many a restless night when the imagination
was in a pictorial mood — and one, too, that still makes the
motive and the consideration in thousands of lives between
good living and bad living.

Could there be anything new said about so old a subject is
the first inquiry? Or did the author suppose that the legal
fraternity is lacking in information along this line and need a
kindly warning of their impending danger? Or has some
chance explorer obtained some new and startling facts relating
to that undiscovered country that he is eager to give the
world? Or, rather, we were about to conclude, is this not
some new-fangled notion of some cranky theologian who has a
new ''fad" about Hell that he cannot suppress and is bound to
have a new plank inserted in the modem church creeds?

But when we discovered that this red-backed, terribly
titled, steaming publication bore the imp rint of an



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THE BAR. 167



established, dignified and recognized authority on such
matters, we began to take it seriously.

It, indeed, proposes to give us the nineteenth Century,
orthodox view of that burning question of Hell !

Here is the offer in their own terms I

"hell" in a new light.

The ** Bible A Tract Society," of Allegheny City, Pa„ has
issued a remarkable pamphlet, which while thoroughly loyal to
the Bible, so explains the references to hell as to make them
reasonable, understandable and consistent with the divine
character.

The Society offers these free to our readers, as sample copies
of its publications **for the promotion of Christian
knowledge." Send a postal card request for it. It examines
every text and is worth its weight in gold. It undoubtedly
will bring a blessing to many a bewildered Christian, and
convert many a doubter and sceptic. Nor should we wonder
that, when light is breaking upon every other science, the
Bible should also become a new book and doubly precious.

We are rather inclined to concur with the publishers that
this would be a useful volume in the libraries of the legal
fraternity, as it costs only a postal-card we are disposed to
commend it not only to those who are collecting libraries, but
to those who have space remaining for a small volume.

^ %ie

This tale was told by Judge Pennypacker, \n beginniog a response
to a toast at a PenDsylvaoia-GermaQ banquet to Philadelphia. Tne
story be said, showed the readiness of the Pennsylvania Dutchman to
obey those in authority:

In 1864 Sheridan, under orders, burned every barn from a valley
above Staunton to a certain point below Winchester. A band of
angry rebels followed this raid, watching for a chance to pick up any
stragglers. Among others who fell into their hands was a little
Pennsylvania Dutchman, who quietly turned to his captors and
inquired:

•*Vat you fellows going to do mlt me?"

The reply came short and sharp.

**Hang you."

**Vell, he said, meekly, "vatever is de rule."

His giiod-natured reply threw the Confederates Into a roar of
laughter and saved his life.



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168 THE BAR.



RullDg Passion Stronic tn Death.



^T MAN must be posBessed of a very deep and devilish
▼ ^ personal enmity who will deliberately sit down and

vent his hate in the form of a last will and testament.

Sat some men have been and continue to be too cowardly to
give utterance to their prejudice and spite in life and health,
and take the opportunity to conmit it to paper that will not see
the light until they are dead and then takes the form of a
permanent libel as a public record.

It is a nice question whether a dastardly injury to one's
reputation like that would give the party a right of action
against the estate of the decedent. A probate court of
Pennsylvania, says an exchange, has recently been called upon
to determine this novel question (In re Gallagher, 49 Pitts. L.
J., 161.) The petitioner against the estate claimed damages
for a libel upon him in thd testator's will, the publication
of the libel being by probate of the will. The court, after
determining that the maxium— acfto personalis moritur cum
persona — ^has no literal application, is led to allow the action by
a consideration of the great injury that the petitioner (an
attorney) will suffer in his professional character by an
imputation thus perpetuated in a public record. One's
sympathy is stron^i^ly roused in behalf of the libel claimant.
Nevertheless, it is impossible on any established theory of the
law to support the decision, desirable as it is in its result.

"If the libel had been published by the testator to the
witnesses, for example, a cause of action would have arisen
against him. But at common law this would have abated at.
his death (Walters v Nettleton, 6 Gush., Mass., 644.) And the
statutory modifications of the old rule of abatement do not,
except in a very few States, apply to the action of libel. (See
21 Cyc. PI. & Pr„ 349.) But the publication complained of is



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THE BAR. 169



by probate, so that no cause of action ever existed against the
testator. Even if by a fictitious relation of time, such as a
devisee may invoke in bringing suits after re-entry, the
publication be carried back to his lifetime, the objections of
abatement still apply. To support the action, therefore,
necessitates the conception of the deceased's estate as a legal
entity, itself capable of committing a tort. Were such a
conception justifiable the analogy of a corporation's
responsibility for libel would permit the estate to be held
(Whitfield V South Eastern R'y E., B. & E., 113.) In the
Roman law, it is true, the deceased's estate was considered a
juristic person, though, perhaps, only as regards rights of
property (Windschield, Pand., sec. 531.) But such
personification is completely foreign to the common law theory
which deals with the estate through administrators and
executors, and not as an artificial person. Unfortunate as the
result may be, we are driven to the conclusion that the common
law is powerless to recompense one damaged by testamentary
libel. Its only weapon against this ingenious and infamous
method of doing injury rests in the Probate Court's power to
strike out the libelous matter, a power which courts seem
reluctant to exercise.



Not loDgf ago Jud^e Dickey, of the Supreme Court, who hails frooi
NewburjTh, was holding cnurt in Brooklyn, says the New York Times.
Tbe lawyer for the defendant in tbe case before him occupied the
time of tbe court by aslcing practically the same question over and
over again. Jud^e Dickey called his attention to this fact once or
twice, and finally became provoked and said to tbe lawyer:

'*Tou have gone over that ground time and time again, counselor.
Tour questions suggest 'crabs' to me — they always go sideways and
do not get ahead — and I do not like crabs."

The lawyer pleasantly replied:

•*Well I am sorry that your honor does not like crabs; and I most
respectfully differ with you in that respect, as well as others. For
my part, I like crabs, but I do not like lobsters, especially lobsters a
la Newburgh!''



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170 THE BAR.



A Jiisttoe*s Own of a Flea.

ToThbBab:
l^AVING noticed in several issues of the Bar examples of
^ 4 pleadings and papers prepared by justices in the
different counties of West Virginia, I thought it
might be interesting to the readers thereof to peruse a sample
from a Tyler county justice's pen which was sent to a
prominent attorney of the Tyler county bar, with the request
that he examine the same and report to the justice if it was
sufficient to file in the damage suit for slander it attempted
to set oat. Here it is as written by the justice, omitting
names.

"Plea against D S ^for misdemeanors done by him

against 1^ W in the year 1887 and made up to the

f present which is as follows first which I Bought said land
rom him he deceived me in falsehoods he told me
Emphatically that there was an outlet from the land I
purchased of him when at the time there was not any which
has been the cause of me loosing considerable loss of time and
money. And every effert I have made to get the money he
the said S— did contute me and it caused me on my part a
failure therefore I failed to get the money to meet the
payment then due and as fast as the payments became due he
sued me. When I bought the land of him he did agree with
me that if I failed to meet the payments that he would not
sue me until the last note become due of which will become
due in the year 1892, and all of these promises and
agreements on the part of the said S — is falsehoods. And he
the said S — has told different persons that I did swear d — n
and Gt—d d — ^n lies to get my pension and therefore I can
produce to any court that said S— did Emphatically make use
of the above mentioned Language therefore I claim a damage
in this suit for my character the amount of ten thousand
Dollars. L— W

As a further explanation of the foregoing paper, it may be
proper to say that the suit in which it was to be filed was to be
brought in the Circuit Court of Tyler county.

Yours truly,

C. B. RlQQLS.



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THE BAR. 171



Prelimtnary Heartnic on Criminal Charges.



Tn[NR. Jerome, the new District Attorney of New York, is
^ ^ receiving the commendation of the press of that city

for his policy in dealing with persons arrested on
criminal accusations :

It has been the practice in New York, as it is in most States,
that when a crime has been committed, somebody, must be
found upon whom some suspicion rests, be it much or never
BO little, and the unfortunate is summarily seized and
incarcerated until a grand jury can hold an exparte
inquisition and possibly find some evidence or show of reason
for compelling him to go through the protracted and
expensive ordeal of a trial before a petit jury and very often
have his character besmiched and his business ruined to
escape from a charge that was unfounded and unjust.

The new policy of the District Attorney, and one which
other States might well emulate, is to investigate charges
against persons under suspicion of crime, before indictment,
instead of after; to endeavor to learn who committed a
particular crime, rather than, finding that a crime has been
committed, and being content to have a victim who is accused
of it, no matter how insufficient the evidence.

The new policy in New York found a striking commendation
in the recent case of Florence Burns, a beautiful and
accomplished young lady, who was arrested on suspicion of
having murdered her lover. Her case aroused the sympathy
the whole city. The District Attorney, instead of leaving her
to languish in jail until a grand jury could investigate ic,
gave the case a thorough investigation on preliminary hearing
before a Magistrate, who promptly discharged her, owing to
the insufficiency of the evidence.

Had such evidence been presented to the Grand Jury, with



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172 THE BAR.



the statements of the witnesses unattaoked bj the
cross-examination, an indictment would probably have been
returned. But under cross-examination the testimony had
been clearly shown to be legally insufficient to justify the
holding of the accused.

If it were insufficient to justify the committing Magistrate
to hold the accused, it must be presumed that it would have
been insufficient to secure a conviction on trial. In that
event, the only purpose the trial would serve would be to
involve the county in a great and needless expense. A
preliminary examination can never weaken unassailable
evidence. If it demolishes worthless evidence it serves a most
salutary purpose. It throws an additional safe-guard around
the Constitutional rights of all the citizens, it enables the
District Attorney to be the prosecuting officer for all the
people, rather than the prosecutor of the individual and it
saves the people's money.

Ez-GoverDor Leslie M. Shaw of Iowa the new Secretary of the
Treasury, practiced law for maoy years Id the Iowa courts. The
Secretary is a good story-teller and narrates this personal experience
of the days when he was practicing at the bar.

A boy about fourteen had been put on the stand, and the opposing
counsel was examining him. After the usual preliminary questions
as to the witness's age, residence and the litce, he then proceeded:

**Have you any occupation?"

*'No."

* 'Don't you do any worlc of any kind?"

**No."

**Ju8t loaf around home?"

••That's about all."

•*What does your father do?"

•»Nothin' much."

**Due8n't he do anything to support the family?"

•*He dries odd Jobs once in a while when he can get them."

**As a matter of fact, isn't your father a prbtty worthless fellow, a
deadbeat and a loafer?"

'*I don't know, sir; you'd better ask him. He's sitting over there
on the jury."



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THE BAR 178



Is a Type- Written Will \ aUd?

To Thb Bar:

Wheeling, W. Va. March 19 1902.

THE February number of the Bar contained a
communication from "X Y. Z" on the subject of
whether a will can be typewritten in West Virginia,
inasmuch as the statute provides that ''no will shall be valid
unless it be in writing and signed," etc. Although an
answer was invited, I do not notice that any was given in the
March number of the Bar.

The question was mooted here in Ohio County a year or two
ago when a typewritten will was offered for probate, but the
attorney who suggested a contest dropped the subject when
attention was called to the statute giving rules to be
* 'observed in the construction of statutes," as follows: Oode,
Chapter 14, Section 17, clause 8, "The words 'writing,'
include any representation of words, letters or figures,
whether by printing, engraving, writing or otherwise."

It seems to the writer that in view of this provision of the
statute it is clear that a will will not be rendered invalid
because of its being typewritten.

Very Truly Yours,

E.

<*So you are on an automobile trip?'' said the friend. * 'Where are
you going now?"

<*I couldn't say for certain," answered Mrs. Cayenne, **whether it
is home or tde emergency hospital." — Washington Star.

Hotliclc: **Your dog bit me last night in the leg, and I want to
know what you are going to do about it."

<<Lambley: **0, I sha'n't do anything unless the dog should come
down with some disease. In that case, of course, I shall hold you
responsible." — Boston Transcript



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174 THE BAR



The West Virginia Debt.



[Applications for information about the debt are 8o frequent
that the following extracts from a letter I recently had occasion
to write, seem of sufficient public interest to warrant space in
TuK Bar. J. M. Mason.]

"As Bayard, Phelps and Coppell have died and as the
contract, under which certificates are deposited expires before
the If'gisiflture meets, it is impossible for the New York
Committee to ever move. I formed that Committee and
furnished whatever they printed, but, proposing to manage the
matter myself, I did not associate any one who gave sufficient
thought to become conscious of being ignorant as to what steps
to take, or to comprehend what is meant by Delegatus non
Delegare. The difficult and costly part of the work was to
assemble the certificates under a contract binding holders to
accept such a settlement as honest men, after studying the
subject, would advise West Virginia to make. As soon as this
part of the work had been accomplished the financial magnates
on the Committee were deceived and buncoed by the Wall
street promoter whom I had foolishly put in front as their
ostensible adviser and who, lacking sense to act straight,
attempted to use this business to exploit himself as the
toll-gate to Brown Bros. It resulted that I was eliminated
from the undertaking, and it was then left without any one
who had sufficient information to suggest what should be done.
The outcome was that the first time the Committee attempted
to move they unwittingly drifted into the crazy Virginia
Commission scheme which had been discreditably exploited
several years before when our legislature refused to listen
to such nonsense. In other words, promoter number
two landed the Brown Committee in precisely the same hole
that promoter number one had landed the Fahnestock
Committee. Thereupon the undertaking was silently
boycotted on Wall street and in both States by the grade of
men who are trusted for capacity as well as respected for
integrity, and it became so laughed at privately that thinking
men steered clear of it. Those * * * * of us who understand
this subject have always opposed any action unless holders
had competent leadership and unless the certificates were
under a proper contract : viz. a contract to accept bonds for an
amount fixed by the cost of the roads &c in West Virginia,



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THE BAR 175



built with Virginia bonds, or fixed by stating the account
required by the Wheeling Ordinance. This account to be
stated by Committees representing each State and authorized
to submit to arbitration or to the Supreme Court any questiond
about which they disagreed. If tho Court decides that West
Virginia owes nothing, then the certificates to be cancelled.
Holders to accept the cost of the roads <fec although the Court
finds that West Virginia, technically, owes much more than the
cost of the roads. This was baptized "the Baltimore Plan,"
and I have never heard of any man in this State of dignity and
standing, who did not endorse it. * * * * About ninety per
cent of the certificates are controlled on Wall street. Probably
nine millions are owned by less than three hundred holders.
Fifty very rich New York men own six millions. ♦ ♦ ♦ ♦. A
settlement would have been had long ago if holders had dealt
directly with West Virginia parties. All the trouble has been
created by the machinations of two Wall street promoters who
never owned a single certificate and never had a dollar
invested. The remedy for the situation is for a self-constituted
Committee of West Virginians to advertise in New York
requesting certificate owners to communicate their names to a
financial institution and receive a pamphlet giving the real
situation and explaining how a settlement may be brought
about. If the rich holders had a suspicion of the real
situation, they would offer a very large fee for intelligent
leadership, and would put up any amount required for the
expenses, of bringing about sensible co-operation. The West
Virginians managing this most important business would
creditably earn adequate compensation, while rendering the
State the greatest service. Holders would flock to such a
Committee and the marplots on Wall street would be ignored.
• *

Tired of the long- winded oratory of the attorney for the defense, the
Judge interrupted him.

**Mr. Sharlse," he said, **may I ask you a question?"

*»Certainly, your honor, What is it?"

<*Language," said the ]ud»;e, we are told is given to conceal thought
or words to that effect. Inasmuch as you don't seem to have any
thought to conceal, I would like 60 know why you are talking?"

**Bridget, why did you let that policeman kiss you?"
**It'8 agin th' law to resist an officer, ma'am."



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176 THE BAR



Distinotion Between Non-Sait and Jadinnent on th« Merits



The queBtions of practice arising on a non-sait are
somewhat obscure, and the authorities not very satisfactory or
harmonious.

In a recent case, Dealy vs. Heintz, the New York Court of
Appeals rendered a very well considered and elaborate
decision, which may serve as a good brief to the practitioner
who needs authority on points involved in non-suits. The
Court said :

This appeal involves simply a coDtention coDcerniog the pntper
name which should be given to the Judgment appealed from. The
plaintiff avers that on the 2l8t day of October, 1895, the defendant,
residing and doing business at the City of Cologne, in the German
Empire, sold and delivered to the plaintiff's assignor 130 casks of
carbonate of potash, warranted to contain 80 to 85 per cent of
potash. It is then alleRed that there was a breach of this warranty
on the part of the defendant In that the goods delivered did not
contain the requisite percentage of potash. The answer put in issue
allegations, and the Issues were tried by the court and the complaint
dismissed. The judgment entered upon this decision has been
unanimously affirmed at the Appelate Division.

The evidence given at the trial consisted largely, if not entirely, of
the written correspondence between the seller and buyer, and upon
the plaintiff's construct Ion of this correspondence there was some
evidence tending to support the claim . It was not a case where it
could be said that there was absolutely no evidence to support the
claim of a warranty of the goods, but it was of such a character that
the court was required to construe correspondence on both sides and
to determine the meaning of certain technical terms used in the trade
and, (renerally, the intention of the parties.

The learned counsel for the plaintiff, who brings the appeal now,
contends virtually, that ho was non-suited at the trial, which means,
of course, that the trial court refused to weigh or to consider the
testimony, or to determine the facts involved in the issue, but simply



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THE BAR. 177



held that there was no evideDce whatever to consider. We do not
thlDk that this cooteotiOD is supported by the record. A ooD-suit
is the name of a Judgmeot giveD at^aiDst the plaiDtifP when he is
unable to prove a case, or when he refuses or ne^clects to proceed to
the trial of the cause after it has been put at issue without
determining such Issue. A voluntary non-suit is an abandonment of
his cause by the plaintiff, who allows a judgment for costs to be
entered against him by absenting himself or failing to answer when
called upon to hear the verdict. An involuntary non-suit takes place
when the plaintiff, on being called when his case is before the court
for trial, neglects to appear, or when he has given no evidence on
which a jury could find a verdict (Pratt vs. Hull, 13 Johns., 334;
Bouv. Law Die, lasted, vol. 2, p 610, »»Non-8uit.") The record
shows very clearly that no such judgment was entered in this case.
It appears thattne plaintiff gave all the testimony that she had,
consisting of tbe correspondence between the buyer and the seller,
and also some proof in regard to the character and quantity of the
goods actually delivered and on the subject of damages, and then
rested. Toe defendant's counsel then moved to dismiss the
complaint on the ground that the plaintiff had failed to establish any
cause of action; that the theory of the complaint was a claim for
damages on account of breach of warranty, and that the plaintiff had
failed to establish any such breach by tbe proof given. This motion
was grahted and the plaintiff excepted. Subsequently the trial judge
made specific findings of fact and conclusions of law, in which he
srated that the defendant refused to give any warranty of the
character and quality of the goods such as was alleged in the
com Dial nt, and, therefore, the plaintiff failed to prove the cause of
action alleged. He then stated, as a conclusion of law, that the
defendent was entitled to judgment dismissing the complaint upon
the merits, and directed judgment accordingly, and stated that the
grounds upon which the decision was made are contained in the



Online LibraryWest Virginia Bar AssociationThe Bar, Volume 9 → online text (page 15 of 45)