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iOOBllTe. fiATBARDIADTAllOB.

New Oonlmiott, Ft., MorgMitawB, W. V a.



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THE BAB



The Annotated

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A classified digest of late
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It covers cases so recent
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THE BAR.



VOL. IX.



JUNE-JULY, 1902.



NO. 6-7.



THE BAR



OFFICIAL JOUmNAI, OF TflS



West Yir^a Bar Association.



Under the Editorial Charsre of tfte E»
ecntive Councu.



Entered at the Post Office at Morgan-
town as second-class mail matter.



Prlee lOe m Copy. 91.00 m Tmut in
Aavanoe.



AdTortlsiiifl: Rates on Request,



All Circuit Clerks are authorised Agents
to receive and receipt for subscriptions.



Address all commnnicatlons to
THE BAB,

Morirantowti, W. Va.



An Open Forum.



This Journal it intended to f umiBh
an open forum to every lawyer for the
diflcuMlon of any policy or proposition
of interest to the Profession. It in-
vites a free interchange of ylewsupon
all such topics whether they agree With
the yiews of Thx Bab or not.

Thb Bab goes to every Court House
in the State and is read by, probably,
three^fourths of the lawyers of the
State, and thus furnishes not only a
ready medium of communication be*
tween members of the Prof ession, but
of unification of the Profession on all
matters of common concern, which is
its prime mission.

Bvery clerk of a circuit court is the
authorised agent of Thb Bab in his
county, and has the subscription bills
in his possession, and will receive and
receipt for all money due on that ao-
oount, or for new subscriptions, and
his receipt will always be a good ao*
quittance for money due Thb Bab.

TfaxBABis furnished at the nominal
rate of $1.00 a year, which is less that:
the cost of publication, and we would
like to have the name of every lawyei
in the State on our subscription list.



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273 THB BAR



WE ace under obligations for recent fayors to Cirooit Glerki
W. EL Wilaon of Blkint, W. K. Pritt of Parsons, B. C.
Conrad of Parsons, and to Attorneys Chas. P. Swint of Weston
and BL H. Simms of Hantington.

f^BABINQ it said that because he was bom in Scotland,
^ ( Speaker Henderson coold never be President of the
United States, even if all the people roted for him, a person^
supposed to be well informed, asked in good faith what the
Americsiki people had against the Scotch that they coald make
each a law as that.

THB report for the year of the Steel Tmst shows that that
trost produced twice as much steel as Great Britain, and
six times as maoh as France. The products of the year are
worth $468,090,988. Orders are booked for nearly a year
ahead. This is the largest trast on earth. To show the
relation of the company to the country, the average number
of men employed was 168,268 ; and the total paid for railroad
freight, $24,147,667; the average yearly wages paid to each man
is about $2 per working day, and the net profits amounted to
$116,000,000. The cost value of production was $848,000,000.
This would show net profits of $116,000,000; but from this
amount must be deducted '^e cost of maintenance.'' ''The
cost of maintenance,'' $24,641^689, is made up of repairs,
maintenance, and extraordinary renewals, distributed
respectively among the steel-making, coke-making, and
transportion properties, nearly twenty millions being in the
ste^l-making. Of the total amount of these vast profits J. P.
Morgan ft Co., as managers of the syndicate, will receive
one fifth.



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THE BAR. 278



I>e»th of U. 8. O. PitBer.



THE death of U. 8. O. Pitzer, of the MaitiDBbiirg bar, was
learned with ead surprise by all who knew him. He was
in the vigor of young manhood, with a promise of many years
of life, and had already attained a standing in his profession
that gave assoranoe of eminence at the bar.

At the last meeting of the State Bar Association his nigged
form and splendid condition of health made him a conspicuous
figure in that assemblage, and he would have been the last
person, from a human standpoint, who would have been
selected as an early subject for the *'grim reaper's" purposes^
But *Hhe young die; and hearts that are dry as summer's sand
bum to the socket." In the economy of nature the limitations
of this life are so effectually hid from human foresight as to be
aboye and beyond all human speculation. They are not to be
determined by age or youth, sickness or health, debility or
vigor, or any of the phases of external appearances by which
one man is accustomed to judge his neighbor. The aged and
the invalid totter on through tedious years, while the vigorous
youth are dropping out of the rauks with startling frequency.
It may be said that it is not health or natural vigor that
determines our lease of life, but unremitting respect of the
laws of health. And yet, as in the case of our Brother Pitzer,
insidious disease may circumvent and surprise the most
assiduous watchfulness and care.

Mr. Pitaer was not only physically but mentally equipped
for a strenuous pursuit of the demands of his professir i. He
was graduated from the Law Department of the State
University some years ago, and hail since been a diligent
student and an industrious worker in the active affairs of
public and private life. He will be missed by his immediate
colleagues, and his death is a loss to the bar of the State.



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274 THE BAR.



A New Deal.



AT the last meeting of the State Bar Association two new
measores were adopted whioh are of interest to members
of the Association and all readers of The Bab, of whioh some
may not yet be advised.

The first of these relates to the annual dues. In order to
relieve the labor and inconvenience of making two separate
collections during the year — the one for The Bab and the
other for the annual dues — ^the annual dues was fixed at $4
per annum instead of $3, which will include the subscription
price of The Bab. The Treasurer will hereafter make one
draft for both — that is, he will draw for $4, under the head of
dues, and this will entitle each member of the Association to
The Bab free of charge.

As nearly all the members were subscribers to The Bab, and
it was assumed that all would be willing to be, and indeed
could not afford not to be if they desired to have the benefits
of membership and to keep in touch with the Association and
the profession in the State, it seemed to be a useless expense
of time and money to be collecting the two amounts in two
independent bills. It imposed a very heavy and unpalatable
burden on the Executive Council, who get no compensation
for this labor, to collect the subscription bills of The Bab
from all over the State by correspondence.

Four dollars is a less sum than is charged as dues by many
State Associations without any collateral benefits. Our
Association will throw in The Bab, which costs more than one
dollar a year to publish, to say nothing of the gratuitous
labor expended upon it.

The full text of the amended Constitution regulating this
matter is as follows :

The fee for admission to membership shall be $6, which



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THB BAR. 275



shall in all oases accompany the application for membership.
The annual dues shall he $4, the payment of which shall
entitle each member to receive one copy of the journal and all
the regular publications of the Association free of charge.
The Treasurer shall annually set apart and pay over to the
Bzecutive Council one-fourth of the sum collected as annual
dues, which shall be used as a fund for paying the expenses of
publishing the journal of the Association.

The other measure adopted by the Association was that
hereafter Thb Bab be published in ten instead of twelve
numbers per year. This is the plan of some of the leading
law journals of the country , including the American Law
Review, which is perhaps the first journal in the United States.
The June and July numbers and the August and September
numbers are consolidated. They will be larger than the other
numbers, and the amount of matter for the year will thus be
about the same as if twelve numbers were issued. During
July and August the lawyer, as a rule, is off on a vacation, or is
indulging in a volume of fiction in preference to law literature,
and will not miss the hot weather edition of his law journal..

The next number of Thb Bab will, under this plan, reach its
patrons about the first of September prox.

THE average lawyer is just about this time having
irrepressible visions of angling in mountain streams,
amid the fresh foliage of the forest, with singing birds
overhead and assured isolation from intruding clients.

IN Michigan they assess a dog one dollar for being a dog.
In Tennessee they assess a man fifty cents for being a
doctor. It costs half a dollar more to be a dog in Michigan
than a doctor in Tennessee.



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276 THB BAR



The MofMter of the HigliwAy.



^TNY one who follows the coniBe of evente m detailed in
^^ the daily press has not failed to be impressed with
the following which the coming of the automobile suggests.

There is no doubt but that this little monster on our public
highways is going to make a fight for its existence and a right
of way on every public thoroughfare. But at the same time it
will be recognized as a menace to the life and limbs of
everybody and everything that ventures upon the highway.
We copy from an exchange the following as a sample incident
of the everyday news, which only needs to be varied in its
details to be the pommon incident of every paper we read :

''Dr. Clifford Colgate Moore, retired physician, and his wife
are confined to their home on North Broadway, both suffering
from injuries as a result of a runaway accident caused by three
operators of an automobile. Dr. Moore and his wife, who was
a daughter of the well known circus proprietor named Nathan,
who left $1,000,000, went out for a drive behind one of the
doctor's fast trotters. When near the residence of William H.
Albro, Dr. Moore saw a red automobile with three men in it
coming directly toward his carriage at great speed.

They paid no attention to him and he turned his horse to
one side just in time to avoid a collision. The steam and
noise scared his spirited animal and the horse jumped forward
and dashed wildly down Broadway. Finally the horse turned
into the curb and threw Dr. Moore out on the pavement where
he lay unconscious. Mrs. Moore caught the reins as the horse
started for the middle of the road again, but was unable to
stop its speed. She kept her seat, however, guiding the horse
between passing carriages. Believing that she might be
thrown out at any moment she firmly grasped the reins with
her right hand and drew up the robe on her lap and wrapped it
around her head to protect it if she were thrown out.

In front of the Rural Cemetery the horse dashed against
the wall throwing Mrs. Moore high in the air and over the wall
into the cemetery. Some of the workmen who rushed to her
assistance found her semi-conscious. A carriage was called
and she was removed to her home, where her husband had
been taken by passersby who witnessed the accident. Drs.



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THE BAR. 2T7



DeSbrt and Pordy were summoned and found both suffering
from many dislocations, cuts and bruises.

The men in the automobile kept right on, never once turning
to see^what damage they had done. After scaring Dr. Moore's
horse they frightened several other horses, among them that of
Frederick Paine, a coal merchimt. Paine's horse started and
before Mr. Paine could control him he was thrown to the
roadway, his carriage demolished and the horse injured.
Several drivers tried to follow the stoangers, but the flyer
out distanced them and they were soon lont to view on their
way to Mamaroneck. It is believed that the auto is owned by
some of the residents of Orienta Point."

In West Virginia, outside of the larger cities, our experience

with this thing is yet very limited. But before the next

legislature adjourns there ought to be a statute that would

prevent these new comers from monopolising the roads, or

otherwise we will have a reign of terror before the next

succeeding leg^lature, two years hence, can come to the rescue .

One of the campaign stories that floated through the cloak
room recently, says the Washington Poii, related to Senator
Fairbanks, of Indiana, and Governor Shaw, of Iowa, the
newly appointed Secretary of the Treasury. According to the
story these two orators were stumping Kentucky. After a
successful meeting the Kentucky colonel who had the two
Republican statesmen in charge invited them into the hotel for
some refreshments.

""What'll you have?'' he asked Senator Fairbanks.

**A little cold Apolinaris,'* was the reply.

^^And you? ^ said the host to Governor Shaw (who is a good
Methodist, and resides in one of the best dairy counties of the
Hawkeye State).

'*I think I shall have a glass of buttermUk.'*

The waiter turned to the Kentuckian.

^'What shall I give you, colonel?'' he asked.

The Kentucky gentleman heaved a long sigh. ^'tTnder the
circumstances," he said, **I think you can give me a piece
of pie.'*



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278 THE BAR



Bill of liiltng Not OoncliislTe.



THE Supreme Court of Eansaa in Miseouriy K. A T. Ry.
YS. Simonson (April, 19Q2, 68 Pac., 663) decided a
queetioD of some noyelty and of general interest. It was
held that a statute of Kansas, which makes the specification
of weights in bills of lading issued by railroad companies for
hay, grain, etc., shipped over their lines conclusive evidence
of the correctness of such weights, is unconstitutional, because
denying to the companies due process of law, and wrongfully
depriving the courts of the judicial power to determine the
weight and sufficiency of evidence. The decision by a bare
majority of the court and the dissenting judges make out a
somewhat plausible case. It is conceded, both by the majority
and the minority, that a Legislature has the right to modify
the rules of evidence. Statutes making certain proof,
documentary or oral, merely presumptive evidence, fall within
such power. When, however, a Legislature assumes to make
evidence of any kind eonchmve evidence, it in effect takes
away the right of judicial trial of the question of fact
comprehended by it. This, as we understand it, is the gist of
the argument of the majority of the court, and it would
seem to be sound.

Will the person who exchanged a very large old cotton
umbrella for a new silk one at the Methodist supper last
Wednesday night, as soon as they find out the mistdce, return
the silk one to the owner? — Fairfield Journal.

Not unless persons in Maine are diametrically different from
most other persons. The person who mistakes a very large
old cotton umbrella for a new silk one will prefer to continue
in his delusion.



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THB BAR 279



'•HlfltoflT**— 80 Dubbed.



ONE Granyille D. Hall, who was fonnerly resident in West
Viiginia, but whose peregrinations have landed him in
Ohio, has issued a book which purports to be a ' 'history" of
the rending of Virginia.

Any aocurate and discriminating contribution to the events
which culminated in the erection of this State would be
received as a valuable addition to a history which opens a
wide field and which is as yet but little explored and the
existing material for which is unfortunately very meager.

But Mr. Hall seems to have designed a volume that would
perpetuate the personal hate and spite and bitterness that
was engendered by the intense partisanship of that period
between men who were honest and patriotic, but who differed
as to the best course to take under conditions that were
entirely new and trying to the best statesmanship. Those
patriotic men who foiged from the ''raw material/' so to
speak, the sovereign State of West Virginia were naturally
not all of one mind as to the means to a common end, and
they contended warmly, with one another, and erred in their
individual judgments many times, but they had a single
purpose in view, and when the majority had determined the
course they all patriotically fell into line and joined hearts
and hands in reaching the common end.

What boots it, now that the end was reached, though
through much contention, and the new State is a veritable
entity, that the pioneers in the great and glorious movement
were sometimes individually wrong, and that they warmly
antagonised one another as to the means to the end, if by
such contention they wrought out, as all such schemes are
wrought out, the one patriotic purpose in view?

It must be a very devilish, uncharitable spirit that would



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280 THB BAR



want to hold up to the light at this day the human foibles
and the human mistakes of the patriotic men whose struggle
gave us the new State, and to interpret them as lacking in
loyalty, and put such things in a book, and hand it down to
future generations under the name of history I

Yet in this volume that this man has put forth there is
scarcely one of the men whose memory this State reveres for
his patriotic and self-sacrificing devotion to the work of its
establishment, and whose names are household words with our
people, whose character and motives are not besmirched and
impugned by this cold-blooded hi»U>rian(f)

If the book has any other purpose than this it is not
disclosed.

It reminds us of one who has sat as an auditor under an
eloquent and instructive address and then gone away to tell
what an ugly bonnet Susannah Smith wore ; and what a dude
Miss Jemima Brown had for a beau; and to retail all the
little tittle-tattle of the occasion as the principal features of
the inspiring event, without mentioning the address.

We do not believe there has ever a book been put forth
under the title of a * 'history" that discloses a more
malignant, narrow and partisan spirit than this same volume.

The title is a misnomer. It ought to be inscribed ''Thb
SoAVBNOBB," and buried in a low, deep grave along side of
meanness.

A gift by a mao to his wife of a certlflcate of stock io a corporatloo,
which is immediately delivered and retained by her, is held, ia First
Nat. Baok vs. aollaod (Va.) 56 L. R A. 155, oot to be affected by
his subseqaeot receipt of the divideods tbereoa, aod mentioa of the
Steele io bis will aod io ao assigoment for creditors as baviog been
given to her.

Tliat one Injared by a defect in a city street was a member of the
city council is held, in Danville vs. Robinson (Va.) 55 L. B. A. ie2,
not to prevent his recovery of damages for the injury, if he was not a
member of the committee haying sapervision of the highways, and
was not charged with the duty of making repairs.



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THE BAR. 281



Brldenoe of Wealth of I>el^ndAiit on the Qnestfon of
fizemplary Damaces.



TN Tucker vs WiDders, decided in the Supreme Court of
I North Carolina in April, 1902 (41 S. E., 8), it was held

that, in an action for unlawful arreet, eyidence of the
reputed wealth of the defendant was competent on the
question of punitive damages, and the plaintiff was not
restricted to proof of the tax list. The court upholds the
decision upon the principal point inyolved by previous cases
in its own forum. The rule laid down, however, is one of
quite general application. In a note to Rowe va. Moses, a
South Carolina case, in 67 Am. Dec. (p. 560), a number of
concurring cases are collected and summarized. The same
rule is stated in Sedgwick on Damages (vol. 1, sec. 385,
%tb ed.). This learned author cites many authorities
upholding the rule, and one opposed to it, i. e., Ouengerich vs.
Smith (34 Iowa, 348). As matter of strict logic it would be
difficult to answer the following passage from the dissenting
opinion in the case last named : *The law permits such
(exemplary) damages to be recovered for the correction and
punishment of the defendant, and as an example to the
community. Now it is plain that a verdict of a few dollars,
which would operate as a punishment, if assessed against a
poor man, would utterly fail to have that effect ux>on a man
of wealth. Verdicts for punitive damages ought, therefore,
to be graduated according to the ability of the offender to pay.
Nothing else would be just or reasonable."

As our own Court of Appeals has gone to the extent of
overruling itself to assert and maintain the right to exemplary
damages, it is to be inferred that it would, on occasion, uphold
the doctrine of the North Carolina court and allow the jury
to ''size a defendant's pile."



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982 THE BAR.



^«0tfoe TS. JmmUo^



ToThsBab:

'IP^B Btatemeot of the case see Bab (May) page 228. As we
^ uodentaod Judge Hugos sustained the JadgmeDt of the
second Justice on the **gioand that the first Justice had no
Jurisdiction to try A. upon his Toluotary appearance, nor until a
warrant had been sworn out charging him with the assault, and A.
had been arrested and tried under the warrant, unless the assault
bad been committed in his presence or that of an officer."

That the Justice has Jurisdiction, under the restrictions imposed
by law, to try assaults, is found in Sec. 219, Chap. 50, of the Oode, a
part of which reads: **In cases of assault and battery, unless
committed on a Sheriff or other officer of Justice, or riotously, or with
intent to commit a felony, etc.*'

What restrictions does the law impose? They are found in Sec
221 of same chapter, tIs.: 'The proceedings before the Justice shall
be by warrant of arrest m the name of the State, except when an
offence of which the Justice has Jurisdiction is committed in his
presence, or in that of a Constable, either of them may forthwith
apprehend the offender, or cause him to be apprehended, and in such
case the offender may be tried before the Justice and dealt with
according to law, without such warrant."

Now it is dear that there is no authority for the Justice to
proceed except by warrant, or when the assault is in the presence of a
Justice or Constable.

It is true that **a plenary Judicial confession, i. e., a confession
made by the accused before a tribunal competent to try him, is
sufficient whereon to found a conviction." Am. A Eng. Sue Law
(Ist Ed.), 446. It is in other words a plea of guilty. Can the
defendant enter this plea until he is charged with an offence in the
manner prescribed by law? We think not. The decision of Judge
Hugus is in accord with the spirit and letter of the law. Nothing
should be read into this statute. It nowhere authorizes the
Toluntary appearance of a person, and the acceptance of his



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THE BAR. S88



coDfessioo to an oflSeooe hf a Jnstloe, althoogh soeh Jnsiioe may have
Jorisdictlon of the oflSeiioe. Nor is this the rale io the Oircolt Ooort.
There is no eaae of reoord, so f^ as the writer knows, where the
Oircoit Ooort permitted a person to plead goOtj of an offence nntil
he was first indicted therefor and tonight before the oonrt in the
manner prescribed by law, chaiged with the commission of the
offence. As the case was before Judge Hugos there was nothing in
the record to show that the first Justice had Jurisdiction, tIi., that
warrant had been issued, or an offence committed in the presence
of an officer; while the proceedings before tlie second Justice wore
regular, and showed the Jurisdiction of the Justice, and therefore
the holding of Judge Hugus as above stated is correct.

M ABCHLLUS M. THOUwnr.

A certain good physician whose door bell rang late one night,
supposing that the summons was from some one who needed his



Online LibraryWest Virginia Bar AssociationThe Bar, Volume 9 → online text (page 23 of 45)