account of said purchases, till the 9th day of May, 1896, when the said defendant firm owed to the plaintiff a balance of $268.74, for which balance the defendant firm, on the 9th day of May, 1896, executed and delivered to the plaintiff corporation a negotiable note for the said sum of $268.74, payable at 30 days, which said note was not paid at maturity, but upon which, after maturity, various payments were made by defendant firm, until the same was reduced to the sum of $132, exclusive of interest; that on the 12th day of October, 1896, the plaintiff corporation, before John T. Carr, a justice of Mercer county, W. Va., brought an action against the defendant firm on said note of $268.74, and obtained thereon in said action, on the 24th day of October, 1896, against the defendant firm, a judgment for the sum of $134, the balance of the said note, upon which judgment execution issued, and the defendants paid the same off to the plaintiff on the 13th day of April, 1897. It is further agreed between the parties hereto that, subsequent to the 9th day of May, 1896, and up to the 25th day of June, 1896, the firm defendants had purchased other goods of the plaintiff, amounting to $244, and that on the said 25th day of June, 1896, the defendants, by their partnership name and style of William W. McClaugherty & Co., executed to the plaintiff their negotiable note at 30 days for the said sum of $244, upon which there has been paid by the defendants to the plaintiff the sum of $19.84 as of November 13, 1896; that this is the note sued on in this case, and which note is here filed with this agreement, made part hereof, marked 'Note,' and that with the exception of the sum of $19.84 there have been no other payments on said note, and the balance thereof remains wholly due to plaintiff and unpaid; that the proceedings on the note of $268.74 by plaintiff against the defendants, before John T. Carr, a justice of Mercer county, are shown by the transcript from the docket of said Justice Carr, and are to be read herewith as part of the agreement of facts, and are made part hereof, marked 'X.' It is further agreed that, when the suit was commenced by the plaintiff against defendants on the note for $268.74, referred to in the above transcript of Justice Carr, and on which note he entered judgment, the note for $244 also belonged to the plaintiff, and was then due and unpaid. It is further agreed that on the 4th day of January, 1897, an action was commenced before E. T. Oliver, a justice of Mercer county, W. Va., on the note for $244, and that said action was in the name of George S. Stader, who was then in the possession of said note as the agent of the plaintiff for the collection of said note, and which was transferred to said Stader for that purpose only, and that said action so commenced before the said E. T. Oliver, justice, by said Stader, and in his name against the said defendants, on the said note of $244, was on the 16th day of January, 1897, dis

missed by the said Stader, but without prejudice, as will be seen by a duly-certified transcript from the docket of said Justice Oliver, filed herewith, marked 'W,' and made a part of this agreement, and to be read herewith and as part hereof. And since the dismissal of said last-mentioned action, and before the beginning of this suit, the said note was transferred and delivered by the said Stader to the plaintiff in this action, who at the commencement of this suit was, and is now, the owner and holder of said note.

"1897, Nov. 10th.

"Johnston & Hale, Attys. for Pl'ff. "Hugh H. Woods, Atty. for Def'ts." Exhibit "Note," filed with agreed statement of facts:

"$244.00.

"P. O., Bluefield, W. Va., July 25, 1896. "Thirty days after date we promise to pay to the order of Flat Top Grocery Co. two hundred and forty-four dollars. Negotiable and payable at First National Bank of Bluefield, W. Va. Homestead and all other exemptions waived by the maker and each indorser. Value received. No. 10,172. Due 25-28 July. "Wm. W. McClaugherty & Co."

Indorsed on back:

"1896, Nov. 13. By cash, $19.84.

"Flat Top Grocery Co., "By Geo. R. Dabney, Sec. and Treas." "Pay to the order of Flat Top Grocery Co. "June 4th, 1897. Geo. S. Strader."

Upon the issues the court found for the defendants, when the plaintiff moved the court to set aside its finding and grant it a new trial, and moved in arrest of judgment on said finding, for the reasons that the same are contrary to the law and the evidence and because of the erroneous rulings of the court in permitting the affidavit and pleas to be filed, and in refusing to strike out the same, which motions were overruled, and plaintiff excepted, and tendered its bill of exceptions, which was made a part of the record, and judgment was entered for defendants for their costs, from which judgment plaintiff obtained a writ of error and supersedeas, and assigned the following errors: "(1) The court erred in permitting the defendants' plea No. 1 to be filed, and in not sustaining plaintiff's objection thereto. (2) The court erred in overruling plaintiff's objection to defendants' special plea No. 2, and in permitting the same to be filed. (3) The court erred in refusing to strike out the said pleas. (4) The court erred in permitting the affidavit of the defendants to be filed, as it was not the affldavit required by section 46, c. 125, Code. (5) The court erred upon the facts in the case, and, instead of finding for the defendants, should have found for the plaintiff. See bill of exceptions and agreement of facts, Record, pp. 10 to 18. (6) The court erred, because it appears that it applied section 48 of chapter 50 of the Code (1891) to this case as the law governing the same, when said section is not applicable to actions begun and

prosecuted in the circuit court, and is only applicable, if at all, to actions before justices, and, if applied or attempted to be applied to actions in the circuit court, the same is unconstitutional and void, because, under the attempt to regulate proceedings and the remedy, it destroys and takes away the right, is penal in its character, imposes a forfeiture, and especially is not said section applicable to the case at bar. The petitioner could not have sued on both debts due it from defendants before a justice, as the two debts exceeded the jurisdiction of a justice. (7) The court erred upon the whole case, both upon the law and the facts."

The affidavit filed by defendants bases their whole defense upon section 48, c. 50, Code, which provides: "When the plaintiff has several demands against the same defendant, founded on contract, express or implied, he must bring his action for the whole amount due and payable at the time such action is brought, whether the demands be such as might have been heretofore joined in the same action or not. If he bring his action for part only, the judgment in the suit, whether for or against him, shall bar him from the recovery of the remainder." Here the plaintiff had two distinct demands and causes of action on two different contracts, the aggregate amount of which was beyond the amount of which the justice had jurisdiction, and hence it could not bring its action for the whole amount due and payable in the justice's court, and therefore section 48 is not applicable to this case. The plaintiff will not be required to do a thing which is impossible. It is not the purpose of the law to close the courts of the country against its citizens, and the plaintiff is entitled to the benefits of its speedy remedy in the inferior court, and cannot, in a proper case, thus be deprived of it. In the case of Buckner v. Thompson, 11 Ill. 563, it is held: "Where actions are brought before a justice of the peace on two notes, returnable at the same time, which, if consolidated, would exceed $100, a judgment on the first note is not a bar to a judgment on the second. Each note constitutes a separate demand. If a controversy exists as to the amount of a set-off, a party is not bound to give credit, before the commencement of a suit, for the exact amount to which the trial may show the party entitled." The statute of Illinois was similar to ours, each party being required to bring forward all his or her demands against the other, existing at the time of the commencement of the suit, which were of such a nature as to be consolidated, and which should not exceed $100 when consolidated into one action or defense, on pain of being forever barred from the privilege of suing for such debt or demand. If the aggregate of the two notes in case at bar had not exceeded the sum of $300, section 48, c. 50, Code, would certainly apply, and judgment on one could be pleaded in bar to an action on the second.

A party will not be permitted to divide up a demand exceeding in amount the jurisdiction of a justice into sums to bring it within such jurisdiction for the purpose of suing thereon in such court. In Hale v. Town of Weston, 40 W. Va. 313, 21 S. E. 742, it is held: “A person who asserts a claim to a specific amount of damages for an alleged injury sustained in his business will not be allowed to split up his claim, in order to reduce it to the jurisdiction of a justice, and to bring consecutive suits before a justice for such claim." In Stickel v. Steel, 41 Mich. 350, 1 N. W. 1046, "a man bought a bill of goods in August, with credit for four months from September 15th following, and on the same day, from the same person, another bill of goods, at a credit of four months from October 1st following. Held, that the two bills of goods do not constitute one demand, when one may become the subject of suit before the other becomes due, or when the remedy of one is barred before the time is expired for the other." In that case action was brought, on the first bill before a justice after both had been due, and judgment recovered. Another suit was then brought on the second bill, and in that suit the defendant relied upon the first judgment as a bar. His position was that the two bills only constituted one account, consisting of several items, all due when the first suit was brought, and that an adjudication upon any part of it was necessarily an adjudication upon the whole, because the account was incapable of being divided up for the purposes of separate actions. Judge Cooley, in the opinion of the court. says: "The two bills might have been embraced in one action, but, as the aggregate amount exceeded the jurisdiction of a justice of the peace, we probably have in this fact an explanation of the two suits. We think the plaintiffs had a legal right to bring the two suits. The justice refused to give costs in the second suit, and the course taken has been favorable to the debtor, instead of being oppressive. He has been sued in an inexpensive court, and would have been saved the costs of a suit in the court of general jurisdiction but for the certiorari."

Appellees give an illustration, according to their views, of the effect of section 48, c. 50, Code, which canpot apply in this case, but which so well illustrates the intention of the legislature in the enactment of section 48 that I give it here: "A. holds a note executed to him by B. for $100, which is due and unpaid. At the same time A. holds a note, by assignment from C., against B., for $100, which is due and unpaid. A. institutes suit against B. before a justice for the note executed to him by B., and obtains judgment, which is paid. Afterwards he brings suit in the circuit court against B. on the note held by assignment from C. Now, if B. could not plead in bar of this last action the judgment before the justice because A. did not sue for all his demands, then section 48 of chapter 50 is to

him a dead statute, and I can see no difference if the second suit was begun before a justice of the peace." In this supposed case B. could plead the judgment on the first note in bar of the action on the second note, in the circuit court or any other court, because he could have included all his demands in his action, and, all his demands together not aggregating more than $300, section 48 required the same to be included in one action, on pain of having the part of his claim left out barred. In the case at bar plaintiff could not have sued for all his demand before the justice, and therefore the section 48 does not apply. The affidavit and second plea, not presenting a good defense, should not have been filed, and, without a proper affidavit filed by defendants, under section 46, c. 125, Code, no plea could be entered, and the plaintiff was entitled to its judgment. For the reasons herein given, the judgment is reversed, and judgment entered for plaintiff.

(46 W. Va. 538)

PRICE v. CHESAPEAKE & O. R. CO. (Supreme Court of Appeals of West Virginia. April 22, 1899.)

CARRIERS EJECTION OF PASSENGER - INSTRUCTIONS.

1. A passenger upon a railroad train must show his ticket, or "conductor's check" given in the ticket's place, when called upon by the conductor, and, if he fail to do so, whether willfully or because he has forgotten having the ticket or check, and refuses to pay fare, he cannot recover damages for his ejection, if unnecessary force is not used.

2. An instruction which singles out certain facts, and makes the case turn on them, ignoring other material facts of the case, is errone

BRANNON, J. This is a writ of error from a judgment of the circuit court of Fayette county in an action of trespass on the case by William M. Price against the Chesapeake & Ohio Railroad Company, which writ of error was obtained by said company. In July, 1895, Price came to Charleston from some point below that city, and, being utterly without any means, and desiring to get to Virginia, he applied to the county court of Kanawha for transportation to Hinton. The sheriff. under the direction of the court, procured for Price a ticket from Charleston to Hinton, 90 miles. Price showed his ticket to the conductor who conducted the train as far as Handley, and the ticket was punched by the conductor and given back to Price. The next

conductor beyond Handley took up Price's ticket, and gave him a conductor's check in place of the ticket, which check was commonly used, and intended to show that the passenger was entitled to ride to the end of the next section. The train was an accommodation train, stopping at all the stations, where passengers would leave and get on the train. After going about 25 miles from the point where the conductor had taken up the ticket, the train stopped at Hawk's Nest, and the conductor, supposing that Price had gotten on at that point, having forgotten that he had taken up his ticket and given him a check, inquired of Price about his fare, and Price told him that he had already given a ticket to him. The conductor asked him if he had a check. Price said he had not, and denied that he had one, as the conductor says. Price did not show the check, or say that he had one, and said, as a witness, that he had forgotten that he had one. The conductor told Price that he did not remember having taken up any ticket from Charleston to Hinton, but he would look among his tickets in another car, and if he found such a ticket it would be all right. The conductor says he looked among his tickets, and found no such ticket, and, after some time, he returned to Price, and informed him that he had found no such ticket, and was satisfied that the plaintiff had given him no such ticket, and demanded fare, which Price refused to pay, but was allowed to go on to the next station; and the plaintiff failing or refusing to show any conductor's check or pay fare, which was demanded of him, he was told to get off of the train, which he did, without the use of force. After he got off the train, a person standing by observed the conductor's check under Price's hatband, but the train was gone. The next day the conductor, having learned of the check, offered to carry Price to Hinton, but Price refused, saying he was going to sue the company, and at once brought this suit.

Upon the trial, the court gave for the plaintiff an instruction (No. 2), saying to the jury that "if they believe from the evidence that the plaintiff, on 25th day of July, 1895, had a ticket on defendant's road from Charleston to Hinton, which ticket was purchased and given him by the deputy sheriff of Kanawha county, and that while the plaintiff was on his journey between these stations a conductor of the train, upon which the plaintiff was a passenger, ejected him before he reached the said station at Hinton, then the defendant company is liable to the plaintiff in this action for such actual damages as the jury may believe he sustained." It will be at once seen that this instruction says that if the plaintiff had a ticket, and was ejected before reaching his destination, the company must answer in damages; binding the jury to impose dam ages, utterly ignoring, not even mentioning, the fact that Price had this check to show his right of passage and identify him as the passenger, and that he failed or refused to

show it when lawfully asked for it. This is plainly error, provided those facts, in law, have a material effect upon the case. That instruction gave only the plaintiff's case, and on it bound the jury to a verdict for the plaintiff, and never mentioned the defendant's case as proper to be considered along with the plaintiff's case. Both Price and the conductor say that the conductor gave Price that check, and that the conductor demanded fare or ticket, and that Price did not show that check, though it was upon his person. He says the conductor gave him the check, or, rather, that he put it under Price's hatband. The conductor says he gave it to him in his hand. Price only says that he had forgotten the check. The conductor says he also had forgotten the check. Now, what is the law pertinent to the subject? That late and very excellent work, Elliott on Railroads, says (volume 4, § 1594): "As a general rule, a ticket (or a pass) is the only evidence, as between the conductor and the passenger, of the latter's right to transportation. He must produce it when demanded, and if he has no ticket, or fails to exhibit it in accordance with the rules of the company, and refuses to pay fare, he may be expelled. The fact that he may have had a ticket, but lost it, makes no difference." Hutchinson (Carr. § 572) says: "A regulation by which passengers are required to show their tickets to the conductor whenever called upon to do so, and making it the duty of such conductor to remove from the train all passengers who refuse to do so, or pay their fare, has also been held to be reasonable and proper; being necessary to prevent imposition upon the carrier by making one ticket serve as a passport for more than one passenger. And it will not matter that the conductor may know that the passenger has paid for a ticket, or that he has already seen it, or that it has been shown to him more than once, or that the passenger may offer to prove that he has it. He must show it; otherwise, the conductor will be justified in expelling him, in obedience to the regulation. And when a regulation of this kind exists, if the passenger should be so unfortunate as to lose his ticket, he may be required to pay his fare again." In Jerome v. Smith, 48 Vt. 230, the plaintiff bought a ticket with coupons attached, and a conductor detached one of the coupons, and gave him instead a conductor's check, and, before reaching the point for which the check was given, another conductor took the train, and demanded the check, which the plaintiff could not find, but tendered the ticket, with the remaining coupons, which was refused, and the plaintiff was ejected, without unnecessary force. The ejection was held justifiable. The opinion says: "As the plaintiff did not know what the symbols on the check meant, so probably he did not know what those on the ticket and coupon meant; but, however that may have been, such checks are in common use among con

ductors on railroads as evidence of the right of passage, and the case not only does not show but that he understood what the purpose and effect of this one was, as persons ordinarily would, but does impliedly show that he did so understand, because it appears that he searched for it to pay his fare with when he saw the next conductor approaching him collecting fares. Though it was delivered to him only by placing it in his hatband, as he did not object, that was as much a delivery to him as placing it in his lap or hand, and was sufficient to invest him with the ownership of it, and to bind him to take care of it. While he held that check, he had not paid his fare beyond where that conductor was to go, but had what would pay it, or that of any other person, the rest of the way."

I remark that Price's evidence showed that he knew what was the purpose of the check. The Vermont court says that it was the passenger's duty to keep the check safely, and, if lost, the loss was his, and he was situated as he would have been if the coupon had been returned to him, and he had lost that, and as any one would be who had bought a ticket to an opera or lecture and had lost it. Having lost it, he was called upon by the conductor to pay his fare, and had no ticket or check to pay with, and refused to pay it in money, and thus he refused to pay at all, and was thus rightly ejected. Fetter (Carr. Pass. § 279) says: "The loss of a ticket by a passenger falls on him, not on the carrier. The reason is obvious. Passage tickets, in the absence of restrictive conditions, are assignable, and good in the hands of any one. If the loss of a ticket were a sufficient excuse for nonpayment of fare, the carrier might be subjected to the burden of carrying two or more persons for a single fare." Of course, the same rule applies to conductor's checks. In Hibbard v. Railroad Co., 15 N. Y. 455, it was held that a passenger who had a ticket in his pocket, and had exhibited it once to the conductor, and refused to exhibit it again when called on, was properly ejected. In McKay v. Railway Co., 34 W. Va. 65, 11 S. E. 737, this court held that a conductor may demand a ticket, and on failure to produce it may demand fare, and on failure to pay it may lawfully eject the passenger, using no more force than necessary.

Now, if this conductor had not forgotten that he had given this check, but well remembered it, the law gave him the right to call on Price to see it; but, in such case, there would be some pretense to say the conductor was in the wrong. But, in fact, the conductor had forgotten it, and did not identify Price. No human being on an accommodation train, stopping at every station, the passengers changing all along the route, can remember all of them, or recollect about their tickets. He need not remember them, as the law gives him right to call upon the passengers to show their tickets whenever he becomes uncertain, and it is a small burden up

on the passenger to show his ticket or check. The conductor had dozens of tickets to remember; Price, only one. It was the duty of Price to remember his check, rather than of the conductor. How can he say that the company is responsible for the conductor's bad memory, when his own was bad, especially as the law cast upon him the duty to remember his check, and present it when asked for, or, if forgotten or lost by him, then to pay his fare? The fact stands out, undenied and unalterable, that when called upon to produce this check, and after the conductor gave him a considerable time to produce it, he presented no evidence of his right of passage. Moreover, it seems quite unlikely that Price had forgotten this check. It would rarely occur. The evidence of the deputy sheriff who bought the ticket for Price at Charleston shows that Price was eager to stop over at some place before reaching Hinton, and this induces the impression that Price did not forget his check, but, desiring to stop over, retained it, and refused to produce it, in order that he might use it when he wanted to go on to Hinton. I repeat that under these principles of law, which seem to be well settled, that instruction ignoring all facts upon which the defense rested, and thereby virtually saying to the jury that they constituted no defense, was erroneous; for an instruction cannot single out certain facts, and say that, if they exist, the party is liable, ignoring facts which are material in law for the decision of the case. McCreery's Adm'x v. Railroad Co., 43 W. Va. 110, 27 S. E. 327; Webb v. Packet Co., 43 W. Va. 800, 29 S. E. 519.

Instruction No. 1, asserting the general duty of a railroad to carry its passengers safely and land them at their places of destination, and that any failure of the employés to do so renders the railroad liable, as a general proposition, may be unobjectionable. If it were a binding instruction, it would be bad for reasons given against instruction No. 2; but it is very abstract, as applied to this case, or, rather, too restrictive, and may be objectionable, because, as applied to the case, misleading to the jury. Fisher v. Railroad Co., 42 W. Va. 183, 24 S. E. 570. For these reasons we reverse the judgment, set aside the verdict, and grant a new trial.

demands indemnity for costs and expense of the suit from those requesting suit, and it is not given.

3. If a father promise to pay a son for caring for and supporting him, it creates a valid demand in favor of the son.

(Syllabus by the Court.)

Appeal from circuit court, Doddridge county; R. H. Freer, Judge.

Suit by Jennie Harris against John P. Orr and others. Judgment for plaintiff, and Orr appeals. Reversed.

John Bassel, for appellant. W. S. Stuart, for appellee.

BRANNON, J. John P. Orr was appointed in July, 1891, administrator of W. H. Harris, and this is a suit by Jennie Harris, widow of said Harris, against Orr, to settle his accounts as administrator, and to charge him with assets which, by neglect, he had not collected; among them, with certain money found on the person of Harris after death, and which went into the hands of a son, A. B. Harris, and his wife, and was converted to their own use by them and another son, W. B. Harris. The commissioner and the court's decree charged this money, as well as some other, to Orr, and he appeals.

A demurrer to an amended bill was over ruled, and of this Orr complains. The point made to sustain this demurrer is that the bill only charges "that the administrator has refused to collect, and to institute proceedings for the purpose of collecting and getting possession of, the personal estate of said W. H. Harris." It is said this is vague, and that the bill does not charge that Orr failed to collect solvent debts, or that debts which were collectible had been lost by want of diligence; but this bill does do this. It specifies certain debts on certain persons, and alleges that this money was found on the body of the dead man, and taken possession of by A. B. Harris and wife, and that they and another son, W. B. Harris, entered into a conspiracy for the purpose of fraudulently concealing and converting it to their sole use, with intent to cheat the widow out of her share; and that the administrator knew of this conspiracy, and acquiesced in it, and that, though requested by distributees to sue A. B. Harris and W. B. Harris for the money, he failed and refused to do so, and that the demand was solvent when the administrator qualified, but had been lost by reason of subsequent insolvency. I think the bill good.

Next, as to the merits. The proposition of the plaintiff is to make Orr pay out of his own pocket money which he never received, -the money on the person of the deceased at his death. To do so requires quite a strong showing. We must find him guilty of gross neglect in not suing for it. Let us see what degree of diligence the law exacts of personal representatives. "Executors pursuing such a course in the management of the testator's assets as a judicious man, looking alone to