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these parties are not corporate citizens of the State of Washington,
and hence leave to file could be granted and subpoenas issued
returnable on the first di^ of the next term of the Oourt in October.
Among objections to granting leave, it was urged that the Supreme
Oourt has no Jurisdiction in the subject-matter because the bill does
not present the case of a controversy of a civil nature Justifiable
under the Oonstitution and laws of the United States, in that the
suit does not involve rights of a proprietary or contractual nature,
but is purely a suit for the enforcement of the local law and policy
of a sovereign and independent State whose right to make laws and
to enforce them exists only within itself, by means of its own
existence, and is limited to its own territory. The Oourt decided
otherwise. Ohief Justice Fuller's opinion consisted entirely of a
review of the original cases of the same character which have been
brought to the attention of the Supreme Oourt, the two most
important thus cited being those of the State of Minnesota vs. The
Northern Securities Oompany, already mentioned, and of the State
of Louisiana vs. The State of Texas concerning the quarantine

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regulatioDs of the latter State. The Chief Justice declared that the
precedent of the Tezaa-LonisiaDa case shoald he followed to the
present instance; that is, without intimating any opinion whatever
on the question suggested to grant leave to file in accordance
with the general rule.

In the mountain sections of the South, in the old days when the
Judges, on horseback, rode the circuits of the courts, the members
of the bar, travelling in similar style, accompanied them, and good
fellowship naturally followed. It was usually the case that his
honor, being a gentleman of the old school, took his brandy and
water with regularity and relish. To this indulgence at his inn
would often be added the diversion of a modest game of poker.
In Georgia, in the county of B ■ , bordering on the North
Carolina line, at the fall term of the court, many years ago, the
Judge who was to preside arrived at the town tavern on the
forenoon preceding the day on which the court was to convene, and
after supper a number of the lawyers, as their habit was, gathered at
the room of the genial and convivial dignitary to pass the evening.
As an accompaniment to the **apple Jack," thoughtfully provided by
the host, there was nothing more natural and agreeable than a
friendly game of draw. Into the good-humored gathering, at the
invitation of the inn-keeper, had dropped a couple of the well-known
planters thereabouts — among the men of the best figure in the
county — desiring to meet his honor and to renew acquaintance with
their legal friends. A game was soon going, all hands Joining in,
and it was a late hour before chips were cashed and the Jovial party
dispersed. On the following morning, after duly opening court, the
Judge began his charge to the grand Jury. After giving in charge
the most important things, his honor said :

**Now, gentlemen of the Jury, I come to charge you concerning
the pernicious habit of gaming, — the vice of poker playing. I do
not know anything about it myself," and looking up from his
manuscript and glancing over his spectacles, that hung low on his
generous nose, he espied on the Jury one of the planters who had
been in the game with him the night previous; so clearing his throat
he continued, — *ahat is, I don't know much of it, but it's a
pernicious practice and should be broken up."

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THE BAR. 313

A Jatl WItb 470 Mmrderon.

THB mediavai jortres8*of Yolterra is now a formidable prisoD
hoaee, says the St. James's OatetU. When last I visited it
there were 475 prisooers within its walls, all of them murderers. It
Is ao uDcaouy seDsatioa to look upon nearly 500 human beings, each
one of whom has taken the life of at least one other human being.
One hundred and forty-nine of them were condemned for life, and
that meant murder of a brutal and cold-blooded description; the
remainder were imprisoned for periods ranging from fifteen to thirty
years, and that would mean murder with extenuating circumstance^ -
murder the result of inconstancy in a sweetheart, or frailty in a
wife, or faithlessness in a friend. The confinement is rigorously
solitary and cellular; the exercise courts are cellular; there are
cellular smithies and cellular workshops; nay, the very chapel is
cellular. Two tiers of cells run one above the other, and the
prisoner in each, while unable to see his fellow convicts, can
through a long narrow loophole see the altar and the priest who is
saying mass.

As I walked round the ramparts of the great fortress I could look
down into the rows of high-walled exercise courts— not more than 10
feet by 10, I should say — in each of which the convict was taking
the hour of exercise which he is allowed daily. Every prisoner
saluted respectfully, and showed his white teeth in a pleasant smile,
glad at the sight of any fresh fiu^e. Italian prisons are models of
good order and cleanliness, and the cheerfulness and natural
patience of the Italian temperament does much to lighten the labor
of Italian prison officials. The convicts get two full meals of
beans, lentils, or paste, cooked in lard, and meat on Sundays and
holidays. Bvery prisoner may spend 25 centesimi a day, if he has it
or can earn it; therefore wine is by no means an unknown luxury
In the prison.

The system of rigorous solitary confinement leads to frequent cases
of madness. Indeed, there is often talk of the Italian Government
abolishing the system on account of the great expense of maintaining
numerous criminal lunatic asylums.

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814 THE BAB.

A ProposMl Natioiuii Park.

^TN associatioD compoeed almost equally of UdIod and Confederate
"^^ Teteraos was formed Id 1898 to establish a National Park in
Virginia on territory includinff the four battlefields of
Fredericksburg, Ohancellorsville, the Wilderness, and Spottsylyania —
the scene of the final encounter between Grant and Lee. The
project has been approved by the Secretary of War and organizations
of the Teterans of both armies. The land can be obtained under
condemnation proceedings, in accordance with Virginia law, priyate
speculation being thus eliminated. A bill proTiding for this park
has already passed the Senate of the United States and has been
favorably reported by the Committee on Military Affairs of the
House of Bepresentatives; its success now apparently depends upon
the Speaker of the House, who has heretofore exercised his authority
to prevent action upon it. Many reasons are given for the
distinctive value of this park; the batUes fought there were the
result, not of unexpected circumstances, as was the battle of
Qettysburg, but of strategic foresight and military planning; the
armies engaged were not local but National in character; the
territory is in the State in which both the opening and closing
battles of the Civil War were fought; the historic interest of the
place is not confined to the events of the Civil War, but includes
associations with the colonies, the War for Independence, the lives
of Virginian statesmen; the site is accessible to both North and
South; and, not least, the cost of securing and maintaining the
park should be comparatively small. Concerning the value claimed
for the park as a place for instruction in military maneuvers and for
mobilization in time of war we do not venture to express Judgment.
There can be no doubt, however, in view of the plans to save this
historic place from despoliation by lumbermen and to develop it
artistically, that this park would be a worthy expression of historic
reverence and love of beauty.

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THE BAR. 815

Tbe Ooart Recognised tbe Ohmrm.

WHEN Lord Chief Justice Holt presided io the Oourt of the
Bench a poor, decrepit old creature was brought before him^
charged as a criminal, on whom the full seyerity of the law ought
to be visited with exemplary effect, says the Jltrror.

'*What is her crime?" asked his lordship.


••How is it proved?"

•*She has a powerful spell."

••Let me see it."

The spell was handed to the bench. It appeared a small ball of
variously colored rags of silk, bound with threads of as many
different hues. These were unwound and unfolded, until there
appeared a scrap of parchment, on which were written certain
characters now nearly illegible from much use.

The Judge, after looking at this paper charm a few minutes,
addressed himself to the terrified prisoner. ••Prisoner, how came
you by this?"

••A young gentleman, my lord, gave it to me, to cure my child's

••How long since?"

••Thirty years, my lord."

••And did it cure her?"

••Oh, yes, and many others."

The Judge paused a few moments, and then addressed himself to
the Jury. ••Gentlemen of the Jury, thirty years ago I and some
companions, as thoughtless as myself, went to this woman's
dwelling, then a public house, and, after enjoying ourselves, found
we had no means to discharge the reckoning. Observing a child ill
of an ague, I pretended I had a spell to cure her. I wrote the
classic line you see on a scrap of parchment, and was discharged of
the demand on me by the gratitude of the poor woman before us
for the supposed benefit."

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PtooowwUng the Pntore.

TWO geotlemeD were talking in a railway car about the failure
of a professional man whose prospects were bright, and whose
standing was apparently high and sure. The one who knew about
the case was asked for the cause, which being stated, the other
replied, **This was discounting tlie future pretty largely." He had
been sustaining his energies by stimulants.

This answer Is a mine of wisdom. Alcohol, patent medicines^
tobacco, coffee, tea, quinine, the bromides, cocaine and opium may
(some of them in small quanties, others In excess) be used as means
of discounting the future. He who uses stimulants of any kind as a
means of supporting efforts of which he would otherwise be
incapable, is exhausting the latent forces of his constitution, and
makes^ himself in debt to nature, which always charges a heavy rate
of interest, and forecloses either with or without notice, and from
whose suit there is no appeal. Many a man discounts the future
when he commits deeds which, if exposed, would ruin him, and
which are of such a nature that to prevent exposure he must give
most of his time and thought to concealing them. A man
'^discounts the future" when he utMrs or acts falsehood, and when
he attempts to reach an end by serpentine methods. His victories
are really not triumphs, but precursors of final collapse.

The superintendent of mails in the postofflce gets his share of
foolish questions. A man recently said :

**I want to get a letter to my brother sailing on the Majestic,
which isot due until Wednesday. I don't know where he will stay
m New York or where be will go next."

**A11 right," said the clerk. '^Address your letter *John Smith,
passenger on board incoming steamer Majestic, due in New York
Sept. 12,' put domestic postage on It, and it will reach him."

The man thanked the clerk, but came back again later.

•*Say," said he to the clerk, **about that letter I I addressed It
and sUmped it all right, but the man's name isn't John Smith.
How about that?"

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WUled A Iiook of WMhtiicton*s Hair.

^TmONG the wills probated yesterdi^ by Befflster Sioger was that
^^ of Mrs. Blleo Seiyeaot, who died reoeoUy at her home, 401
Soath Forty-flrst street, leaving ao estate taloed at $30,000, says the
Philadelphia Prsss. Among her effects wm a bracelet containing a
lock of hair of Gtoorge Washington. This she bequeaths to the
Society of Qeorge Washington Headqaarters at Valley Forge. The
lock of hair was given to Mrs. Sergeanftt grandmother by Gen.
Washington for an act of kindness done for him while at Valley
Forge. It is said there may be a romance in the little lock of hair.

In examining a witness General Harrison had that rare faculty to
know when to quit. He seldom caught a tartar. In one case an
elderly and irascible lady witness came to the stand. She was a
very **willing" witness, and testified volubly and extravagantly.
When passed over to General Harrison for cross-examination, there
was a look of triumph in her eyes. She squared herself for a bout,
when he said :

••You may stand aside, madam."

**0b, I have heard of you; you can cross-question me as much as
you please; I am not afraid of you," she said.

«I have no questions to ask you, madam," was his bland reply;
nd she was finished.

Bridget and Pat were sitting in an arm chair reading an article on
**The Law of Compensation."

**Just fancy," exclaimed Bridget; <*accordin' to this, whin a mon
loses wan av Us sinses another gits mora developed. For instance, a
bloind mon gits more sinse av hearin' an' touch, an' "

**Sore, an't it's quite thrue," answered Pat.

••Oi've noticed it meself. Whin a mon has wan leg shorter than
the other, begorra the other's longer."

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818 THE BAR.

A Remarkable Will.

THE most remarkable will eTer beard of was tbat of a ricb mao
wbo died not long ago in Berlin. Tbe will was to be opened
Immediately, and a codicil was to be opened after tbe funeral. Tbe
will said, *<Eyery member of my family wbo sball abstain from
attending my funeral Is to receive 300 marks." Tbey all remained
away from tbe funeral except his bonsekeeper, a distant cousin. Oo
tbe codicil being opened after tbe funeral it was found to enact that
tbe residue of bis fortune was to be divided among those wbo,
notwithstanding tbe loss of the 300 marks, attended his funeral;
hence the hou8ekeei)er gets all. Tbe bdirs threatened to dispute tbe
will, but if tbe Jury should have six bard-beaded men who stand for
the letter of tbe law, and six wbo have a sense of humor, tbe will
will be sustained, unless some unusual facts are brought out. If
they bad thought him crazy they would have attended. Tbe
presumption is tbat tbey considered him sensible, and stayed away.

An episode has been recalled in tbe life of the late Justice Field, of
tbe United States Supreme Court, whose temper was of tbe most
Irascible kind. He had given instructions to bis servant on a
certain morning tbat be was not to be disturbed. Presently there
came a ring at tbe door bell and an aggressive book agent appeared.

*<I want to see Justice Field," be said.

(«You cannot see him," was tbe reply.

**I must see him."


Tbe conversation grew more emphatic, until finally tbe persistent
book agent's demands echoed through tbe boose. At tbat moment
Justice Field, who bad been attracted by the altercation, appeared at
tbe bead of tbe stairs.

*<William," be said, in a fiercely angry tone, <<sbow tbe brazen
scoundrel up to me; if you cannot handle him, I will."

The book agent made no further effort to break into tbe Justice's

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Decisions Handed Down at the Last



Appearing Here For the First Time in


Reuben White V8 J. B. Wilkloson et al.

Dent, P.

From Mingo County.

Jxidgment affirmed.


If the auditor through mistake or otherwise certify for sale a tract

of land delinquent, for the non-payment of taxes due thereon to the

sheriff of the county in which such land is not situated, at the date

of such certification, a sale thereof made by such sheriff is illegal and

void, and a deed made in pursuance thereof by the clerk of the

county court is likewise void and vests no title in the purchaser.

Hannah Hall and W. G. Morgan


Mark Packard and F. M. Boynton.

Dent, P.

From McDowell County.

Decree reversed and remanded.


1. Service of summons on a non-resident in the county in which
the same is issued does not abate an attachment nor furnish good
grounds for a demurrer to a bill in equity, founded on the fact of
such uoq- residence.

2. Personal service or summons does not establish residence, for
such servieef may be had on a temporary sojourner or passing traveler.

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State of West Vtiviiiia ts JeiM B. Irwin and otheit.

A. H. Stoddard and Amos 0. Hall, Appellants.
Millard MeDonaid and Bmoe MeDonald, Appellees.
Dent, P.
From Logan Oountgr.
Decree affirmed.
L Points onoe adjudicated by a iinal decree cannot again be pot
in isiHe between the same parties or their prMries in the same or an-
other snit» nnless it be by a direct attaeic on such Unal decree through
appeal or other legal method.

2. A person who boys the titleof the State to forfeited lands at a
Judicial Mle is bound by the final decrees entered in the suit in which
such sale is had, prior to the confirmation thereof, as though he were
a partgr to such suit.

Bank of Greenbrier ts Nanpy Effingham.
John B. Kelley, Appellant.

Dent, P.

iTrom Greenbrier Octonl^.

Decree affirmed.


Two persons unite in a Joint deed giTing to a third person all their

personal property "that they nuiy l»Te at the time of their death,**

and resenring the **use and control** thereof 'te long as they both

siiall life;** they thereby create a. Joint tenanqr sunriTorshIp in such

personal property, the manifest iotenUon of which is that on the

death of one, the residue Tests in the surTiTor, and such third person

IS not entitled to any of their property until the death of both the


B. H. Arthur ts The Oily of Oharleston.

Dent, P.

From Xanawlia Ooonty.



1 . It is the positiTO duty of a municipality to keep its highways

free from obstmctioiis and'defects,'dsngercNis>to traTel thereon in the

ordinaiy modes, to those using Teasonable care and prudence, and it

is not neoessaiy to allege-orproTethit the city 'had notice of such

olistructlons or defects.

8. In cases of temporaiy MCessity a ^municipality may allow ob-
structions on the paWe sidewalks or etreets, but the traTeUng publio
sliould be warned of and protected against the same in some proper

8. Whether a pereiNi is so intoxicated asto be uuaUe to exerelse
ordinaiy care or prudence is "a question of fiet for ' the Juiy, and un-
less plainly against the preponderance of the cTidence its finding wlU
not be disturbed.
4. Though proper InstruetkMis may be refused, yet If othfiriin*

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THB BAB. 821

strocUoDs are glTen ooTerIng the same qaestions and to the same
effect sach refusal is not reTersible error.

r. M. Oreel ts The Charleston Natural Gas Go.
Dent, P.
From Kanawha Oounty.
If a tenant open a senrice pipe and knowingly permit the same to
remain open and the gas to escape therefrom into or under the prop-
erty occupied by him and then carelessly ignites the same his land*
lord cannot recover from the gas company the damages occasioned by
the resulting explosion, although such gas company was guilty of
negligence in not having cut the gas off firom such service pipe.

Y^. a. H. Shaffer vs J. Mather Shaffer.

Dent, P.

From Tucker County.



1. It is not error for the circuit court to reject a bill of review
founded on after discovered evidence wholly insufficient to reverse the
decree sought to be reviewed.

Wetherd vs Elliott, 46 W. Ya., 486 (32 S. B., 209).

2. Although the conclusion reached by the circuit court may be
subject to grave doubts this court will not reverse its action unless
plainly erroneous.

Neughton vs Taylor, 60 W. Ya., (40 S. iC, 863).

W. Brent Maxwell vs Central District & Printing Telegraph Co.

Dent, P.

From Harrison County.



1. The erection of telephone poles along the streets of an incor-
porated city, town or village with the consent of the council thereof
is not such taking of private property for public use as will aubhorize
'the abutting lot owner to enjoin the prosecution of such work until
his damages occasioned thereby are paid or secured to be paid.

2. Such a privilege is a mere easement carved out of, subservient
and appurtenant to the public easement in such street

3. Before an individual or company may invade and destroy in
whole or part for other public purposes a public improvement placed
on the street by an abutting lot owner in front of his property under
agreement with the council of the city, town or village, specific
authority for so doing must first be obtained from such oounciL

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322 THE BAR.

O. & O. By. Co. YS A. T. Wright et aL

]>eot» P.

From Greenbrier County.

Prohibition refused.


If a defendant to a suit instituted before a Justice after making a

specific appearance for the purpose of quashing a fatally defective

return of service of summons, enters a general appearance to the

action, proceeds with the trial of the case and the presentation of his

defence, and on Judgment being rendered against him appeals to the

circuit court, he thereby cures the defects in the service and abandons

his specific appearance and submits himself to the Jurisdiction of the

justice and the court, and after final Judgment rendered against him

by such court he cannot prohibit the collection of the same because

of the defective return of the summons.

The Board of Education of Black Fork District


John Homer Holt, Judge, &;c

Dent, J.

From Tucker County.

Prohibition awarded.


1. As an ordinary rule of practice, subject to all Just exception,
this court will not award a writ of prohibition to a preliminary rule
or injunction issued by the circuit court or Judge thereof, until an
application has first been made to such Judge or court to discharge or
to dissolve the same and such Judge or court overrules or refuses to
entertain such application. Such application may be made and
acted on during the pendency of a rule in prohibition in this court
without being in violation thereof.

2. An injunction does not lie tD control the action of a Board of
Education as to matters within its jurisdiction.

3. A prohibition does not lie to control the action of a Board of
Education unless it is usurping Judicial powers not conferred upon it
by law or exercising such powers in a manner contrary to law.

W. N. Hubbs, P. A D. B., vs Nannie Swabacker, D. A P. E.

Dent, J.

From Marshall County.

Reversed and remanded.


By two judges, Dent and McWhorter.

1. If a sale of land is made under a deed of trust and at the time
thereof there is an understanding had, concurred in by the pur-
Chaser, that a portion of the crop growing on such land is not in*
eluded in such sale, such purchaser cannot afterwards set up a valid
claim to such excluded portion of such crop under such sale.

2. A purchaser at a trustee's sale who gets the whole amount of

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THE BAR. 323

property that be underetood be was bidding for, cannot sustain a
valid legal claim to a portion of the property covered by tbe trust
deed, wbicb he understood at the time of tbe sale, was excluded

3. If a purchaser admits an understanding had at the time of his
purchase growing out of a mutual misunderstanding of law or fact,
and according to which he made bis purchase and secured the land
sold, he is estopped thereafter from setting up a claim adverse to such

Myrtle L. Barker, Defendant in Error,


Ohio Biver Railroad Company, Plaintiff in Error.

Dent, J.

From Mason County.



1. It is the duty of a railroad company to keep its depots and
platforms in safe condition and free from dangerous defects for the
safety of its passengers.

2. A person going to a depot to become a passenger has the right
to presume that the company has discharged such duty, and is not
bound to keep a lookout for defects occasioned by the company's
negligence, other than such as ordinary prudence might require for

3. If a passenger while trying to get her children onto tbe plat*
form of a railroad station, unconsciously steps back into a bole in tbe
platform of which she had no previous knowledge, she is not guilty
of contributory negligence, although if she had been walking face
forwards, in the direction of such hole she could have easily seen the

Online LibraryWest Virginia Bar AssociationThe Bar, Volume 9 → online text (page 25 of 45)