66. FRAUDULENT CONVEYANCES-Remedies of Creditors. In an action to subject to a judgment a lot standing in the name of one other than the judgment debtor, evidence that improvements on the lot as well as the lot itself had been purchased by the one in whose name the title stood held admissible under the general denial.Veercamp v. Goodrich, Colo., 86 Pac. Rep. 1017. 67. HIGHWAY - Injury to Traveler. - Proof that a traveler on a public highway injured by a defect therein knew of the defect and could have observed the danger, is not conclusive proof of contributory negligenceCutting v. Inhabitants of Shelburne, Mass., 78 N. E. Rep. 752. 68. HUSBAND AND WIFE-Debts of Husband-A wife's disability to bind herself for the payment of her husband's debts may be urged after judgment if timely done. -Beasley v. Jenkins, La., 42 So. Rep. 145. 69 HUSBAND AND WIFE-Fraudulent Conveyances.--A husband's absolute control of community property under Civ. Code, § 172, held to cease on the property bec‹ m ing homestead.-Yardley v. San Joaquin Valley Bank, Cal, 86 Pac. Rep. 978 70. HUSBAND AND WIFE-Husband as Agent of Wife.Where a husband leases a house and neither his wife nor any other member of his family were mentioned in the matter of the lease, the husband was not the agent of the wife.- Biancni v. Del Valle, La., 42 So. Rep. 148. 71. HUSBAND AND WIFE-Surety for Husband.-Where a married woman executed a mortgage in consideration of an assignment of a note of her husband, she did not thereby become surety for her husband, but was the principal debtor-Sample v. Guyer, Ala., 42 So. Rep. 106. 72. INDICTMENT AND INFORMATION—Amendment.-An information may be amended so as to charge the commission of the offense anywhere within the jurisdiction of the court.-State v. Abrams, Iowa, 108 N. W. Rep. 1041. 73. INDICTMENT AND INFORMATION-Rape.-A person charged with rape may be convicted of an assault with intent to commit rape.-People v. Murphy, Mich., 108 N. W. Rep. 1009. 74. INJUNCTION-Corporations -Stockholders in a corporation held entitled to enjoin the prosecution of a mandamus proceeding to compel the officers to issue certain stock in violation of the stockholders' rights under a certain contract -Hladovec v. Paul, Ill, 78 N. E. Rep. 619. 75. INJUNCTION Dissolution for Inadequacy of Bond. -A preliminary injunctional order should not be dissolved because of the inadequacy of the bond, except on the failure to comply with an order for additional security.-Wingert v. Snouffer & Ford, Iowa, 108 N. W. Rep. 1035. 76. INNKEEPERS-Injury to Guest.-Whether a stairway in a hotel were defective because brass strips fastened to the front edge of the steps were raised up from 1-4 to 3 8 of an inch, held for the jury.-Braman v. Stewart, Mich., 108 N. W. Rep. 964. 77. INTOXICATING LIQUORS-Sale to Inebriate.- Where the sale of liquor by defendant J to plaintiff's father did not contribute to cause the latter's death, plaintiff had no cause of action against J, under Comp. Laws 1897, § 5395.-Johnson v. Johnson, Mich., 108 N. W. Rep. 1011. 78. JUDGMENT - Conclusiveness. Where there is a trial and judgment in replevin, the judgment is conclus. ive on the parties and their privies in an action on the replevin bond as to all matters which were or might have been litigated under the issues.-Jackson v. Morgan, Ind., 78 N. E. Rep. 633. 79. JUDGMENT-Irrigation.-Except as specially provided by statute or in case of fraud, decrees in statutory proceedings under the Irrigation Act are conclusive on the parties thereto.-Farmers' Union Ditch Co. v. Rio Grande Canal Co., Colo., 86 Pac. Rep. 1042. 80. JUDGMENT-Res Judicata.-Where a foreclosure decree was fraudulently entered for an excessive amount, the mortgagors' right to sue to vacate the same was not dependent on their ability to pay the amount that might be found due on the accounting.-Estudillo v. Security Loan & Trust Co, Cal, 87 Pac. Rep. 19. 81. JUSTICES OF THE PEACE-Trespass to Land.-The failure of a plaintiff suing in justice court for a trespass to land to give evidence of his right to any part of the land does not deprive the justice of jurisdiction to enter judgment for defendant for the costs.-State v. Justice Court of Carson Ip, Nev., 57 Pac Rep. 1. 82. LANDLORD AND TENANT Care Required of Landlord. Where a landlord maintains a passage for the common use of several tenants, he is bound to keep it in such condition as it was in or purported to be in at the time of the letting, but he is not bound to change the mode of construction.-Andrews v. Williamson, Mass., 78 N. E. Rep. 737. 83. LANDLORD AND TENANT-Injuries to Tenant's Wife. -Where plaintiff's wife was not seriously injured by an apparent defect in the floor, there being only an abraision of the skin, there was no liability on the part of the landlord therefor.- Bianchi v. Del Valle, La., 42 So. Rep. 148. 84. LANDLORD AND TENANT-Relation Between Tenant and Subtenant.-Leases to a subtenant for the full term create the re.ation of landlord and tenant as between the original lessee and the sublessee if they so intend.Mausert v. Christian Feigenspan, N. J., 64 Atl. Rep. 801. 85. LIBEL AND SLANDER-Credit Associations.-Where a retail merchant was reported delinquent by a member of an association of wholesalers through a mistake of fact, the question of malice was immaterial in determin. ing the actual damages sustained. — Woodhouse v. Powles, Wash, 86 Pac. Rep. 1063. 86. LICENSES-Scope.-A license to enter on plaintiff's land to construct a pipe line of good substantial character held not to justify an entry to construct a line of a substantially defective character.-Graham v. Redlands Heights Water Co., Cal., 86 Pac. Rep. 989. 87. LIFE INSURANCE-Forfeiture.-That insurer wrongfully declared a policy forfeited during the lifetime of insured held not to constitute a breach of contract, entitling the latter to recover damages.-Kelly v. Security Mut. Life Ins. Co., N. Y., 78 N. E. Rep. 584. 88. LIMITATION OF ACTIONS-New Promise.-An acknowledgment of a debt sufficient to remove the bar of limitations must be a direct admission of a present subsisting debt which the party is liable and willing to pay. -Throop v. Russel, Mich., 108 N. W. Rep. 1013. 89. LIS PENDENS Effect. - Where complainant in partition filed a lis pendens on the commencement of the suit, a judgment in his favor for costs against certain of the parties was a prior lien to a mortgage executed on their share pendente lite, under Comp. Laws 1897, §§ 8950, 11,080.-Barbour v. Patterson, Mich, 108 N. W. Rep. 973. 90. MANDAMUS-Compelling Hearing.-Mandamus will lie to compel the judge of a district court to grant a hearing in a matter with respect to which, under the rules of his court, parties are entitled to a hearing.Berthelot v. Hotard, La., 42 So. Rep. 90. 91. MANDAMUS-Local Option Election.-Mandamus is not the remedy where a local option election is held on an insufficient petition therefor.-Kennedy v. Warner, 100 N. Y. Supp. 616. 92. MANDAMUS - When Granted.-Where there is a remedy by appeal the court will not order mandamus to compel the judge a quo to issue an injunction to res.rain the enforcement of the judgment.-Beasley v. Jenkins, La., 42 So. Rep. 145. 93. MASTER AND SERVANT-Assumed Risk.-A brake. man crushed between a freight car and a cattle chute located near the track, held to have assumed the risk as a matter of law.-Wilson v. Lake Shore & M. S. Ry. Co., Mich., 108 N. W. Rep. 1021. 94. MASTER AND SERVANT-Defective Appliances.Where an employer had actual notice of a condition which should have led him to make an investigation of an appliance, he must be deemed to have had notice of every defect therein which an inspection would have revealed.-Libby, McNeill & Libby v. Cook, Ill., 78 N. E. Rep. 599. 95. MASTER AND SERVANT-Defective Machinery.-An employee injured while attempting to stop machine he was operating held not guilty of contributory negligence as a matter of law.-Hannan v. American Steel & Wire Co., Mass., 78 N. E. Rep. 749. 96. MASTER AND SERVANT-Defective Walk Ways.-Iu an action for injuries to a servant by the breaking of a bridge, the complaint held not defective for failure to show that the bridge was a part of the "ways, works or machinery" of defendant's plant.-Birmingham Rolling Mill Co. v. Rockhold, Ala., 42 So. Rep. 96. 97. MASTER AND SERVANT-Duty to Obey Rules.-A servant is bound to obey all the reasonable rules and instructions of the master with reference to the conduct of the business.-B: own v. Northern Pac. Ry. Co., Wash., 86 Pac. Rep. 1053. 98. MASTER AND SERVANT-Duty to Warn -A master held not guilty of negligence in failing to warn a servant of the danger of being struck by flying pieces of steel which was perfectly obvious to a person of ordinary intelligence.-Cripple Creek Sampling & Ore Co. v. Souza, Colo., 85 Pac. Rep. 1005. 99. MASTER AND SERVANT-Duty to Warn Servant.-A master held not negligent in failing to warn painters not to use a certain ladder as a staging, if they were all to work upon it at once.-Jacobson v. Favor, Mass.. 78 N. . Rep. 763. 100. MASTER AND SERVANT-Fellow Servant. The motorman and conductor of a street car held fellow serv ants of the motorman and conductor of another street car on the line.-Berg v. Seattle, R. & S. Ry. Co., Wash., 87 Pac. Rep. 34. 101. MASTER AND SERVANT-Injury to Servant.-In an action by employee against railroad company for injuries received by fall of bridge held error to submit case to jury.-M'Guire v. Lehigh Valley R. Co., Pa, 64 Atl. Rep. 825. 102. MECHANICS' LIENS-Action to Enforce.-In an action to enforce on a building a mechanic's lien for work done for a tenant, the question whether materials had been so affixed to the building as to become a part thereof, was a question of fact.-Stevenson v. Woodward, Cal., 86 Pac. Rep. 990. 103. MECHANICS' LIENS-Property Subject to Lien.A materialman held entitled to satisfaction of his entire debt out of a single lot on which he claimed a lien, though a part of the improvements were constructed on an adjoining lot.-Perkins v. Boyd, Colo., 86 Pac. Rep. 1045. 104. MECHANICS' LIENS-Right to Enforce.-The ab sence of intention, at the time a materialman furnishes goods for the construction of a building, to assert a lien, held not to preclude the enforcement of a lien.-Knudson-Jacob Co. v. Brandt, Wash., 87 Pac. Rep. 43. 105. MINES AND MINERALS-Discovery of Mineral After Staking Claim.-Discovery of mineral, though made after staking and record of the claim, held to inure to the benefit of the locator as of the date of the discovery made.-Healey v. Rupp, Colo., 86 Pac. Rep. 1015. 106. MINES AND MINERALS-Location of Claim.-The posting and recording of notices of location of mining claims in January, 1884, held ineffective except as acts in pais to mark the surface location of the claims.-Daggett v. Yreka Min. & Mill Co., Cal., 86 Pac. Rep. 968. 107. MINES AND MINERALS-Mining Partnership.-In a suit to recover an interest in a mine, certain facts held not to have warranted plaintiff's mining partners in forfeiting his interest in an option to purchase the mine.Larsh v. Boyle, Colo., 86 Pac. Rep. 1000. 108. MONEY PAID-Voluntary Payment.-One paying by mistake taxes on real estate not owned by but assessed to him, cannot recover from the owner.- Bateson v. Phelps' Estate, Mich., 108 N. W. Rep. 1079. 109 MONEY RECEIVED-Rights of Parent.-Where a father took money belonging to his two minor sons, without their consent, and made partial payments on the price of a farm, the title to which he took, the sons had a valid claim against the father for the amount of the money so taken. -Merrill v. Hussey, Me., 64 Atl. Rep. 819. 110. MORTGAGES-Foreclosure -Where lien claimants were made codefendants to a suit to foreclose a mortgage, the existence and priority of their liens and their right to a surplus may be adjudicated on their answer without the filing of a cross bill.-Gouwens v. Gouwens, Ill., 78 N. E. Rep. 597. 111. MUNICIPAL CORPORATIONS-Nuisance.-Where the known use of a structure existing in a steeet is of a character which is manifestly dangerous to persons rightfully using the street, the structure is a nuisance for which the municipality is liable for injuries sustained in consequence thereof.-Wheeler v. City of Ft. Dodge, Iowa, 108 N. W. Rep. 1057. 112. MUNICIPAL CORPORATIONS-Rights of Taxpayers. -In a suit by a taxpayer to restrain city officials from issuing bonds under a conspiracy to use the money for an unlawful purpose held on demurrer to the bill that the character of the officials and probability of their so conspiring, could not be considered.-Bates v. City of Hastings, Mich., 108 N. W. Rep. 1005. 113. NEGLIGENCE-Defective Appliances.-An employer held negligent in furnishing for the use of its emplyees a chain which by reason of crystallization due to constant use has only one half its apparent strength.Ford v. Eastern Bridge & Structural Co., Mass., 78 N. E. Rep. 771. 114. NEGLIGENCE-Extent of Injury.-A question asked of plaintiff's physician, in an action against a carrier for injuries, whether, if plaintiff had broken a rib or ribs, they would be sufficiently healed to have enabled her to travel with any degree of comfort within a week or 10 days held irrelevant.-Southern Ry. Co. v. Cothran, Ala., 42 So Rep. 100. 115. NEGLIGENCE-Knowledge of Danger -Where an employee of a telephone company went upon a pole to work on the telephone wire it did not imply a license to interfere with an electric light wire on the same pole.Mangan v. Hudson River Telephone Co., 100 N. Y. Supp. 539. 116. NEGLIGENCE-Question For Jury.-When there is no room for difference of opinion as to the existence of contributory negligence, the case should be taken from the jury.-Brown v. Northern Pacific Ry. Co., Wash., 86 Pac. Rep. 1053. 117. NEGLIGENCE-Question For Jury.-The question of the contributory negligence of a spectator at an auto. mobile speed contest injured by being struck by an automobile held for the jury.-Johnson v. City of New York, N. Y., 78 N. E. Rep. 715. 118. PRINCIPAL AND SURETY-Contract of Suretyship.A note reciting that it was collateral to another note described, held a contract of suretyship as defined by Civ. Code, § 2831.-National Bank of Commerce of San Diego v. Schirm, Cal, 86 Pac. Rep. 981. 119. TAXATION-Jurisdiction of Courts.-That property is assessed too low held no ground for relief in courts, their jurisdiction being limited to omission to list at all. -Commonwealth v. American Tobaccco Co., Ky., 96 S. W. Rep. 466. 120. WILLS-Testamentary Capacity.-An instruction on testamentary capacity that testator's mind and memory at the time he made the will should be compared with his condition at a time when his sanity was not questioned, held not erroneous as misleading.-Dillman v. McDanel, Ill., 78 N. E. Rep. 591. 121. WITNESSES-Communications Between Husband and Wife.-Testimony as to private communications between husband and wife, overheard by the witness, is admissible against the husband.-Commonwealth v Everson, Ky., 96 S. W. Rep. 460. Central Law Journal. ST. LOUIS, MO., APRIL 19, 1907. PROCEDURE NOT A LOCAL MATTER. The idea has gone forth that procedure is a local matter, therefore is not an affair for general consideration. The result of such teaching is, that, there has come to be a general jangle from the very effcrts of men like David Dudley Field, which, had they been understood and thus put into action, would have brought a beautiful harmony in the laws of every state and between every state impelling a federal procedure into tune by the sonorous symmetry of the concord. But what have we? We find the answer in Poe's poem "The Bells:" "Hear the loud alarum bells-brazen bells; How they scream out their affright, They can only shriek, shriek, chriek-out of tune." We do not know how to represent the idea that pleading must follow laws which are from everlasting to everlasting, than by taking a passage from Story on Equity Pleading, and comparing it with one from a later author, who is greatly responsible for the idea so prevalent that pleading is a local affair and in nowise affected by the great datum posts, which, shedding a glorious light over the fields of legal learning, have directed the paths of the Masters of all ages. Story says: "But whatever may be the object of the bill, the first and fundamental rule always indispensable to be observed, is, that it must state a case within the appropriate jurisdiction of a court of equity. If it fails in this respect, the error is fatal in every stage of the cause, and can never be cured by any waiver or course of proceeding by the parties; for consent cannot confer a jurisdiction not vested by law. And although many errors and irregularities may be waived by the parties, or be cured, by not being objected to, the court itself cannot act except upon its own intrinsic authority in matters of jurisdiction; and every excess will amount to usurpation, which will make its decretal orders a nullity, or infect them with ruinous infirmity." Sec. 10, Story's Equity Pleading, 10th Ed. Thompson says: "The object of pleadings being merely to notify the opposite party of the ground of the action or defense, if the party comes into court, it is not perceived why he may not waive the notice as in every other case, although the pleading may not advise him of the case or defense which is actually tendered in the evidence. Several of the best courts of the country proceed upon this enlightened view. The sound view is believed to be that the instructions have no connection with the pleadings except through the evidence. The jury find from the evidence not from the pleadings. So is the judge to instruct the jury upon the whole evidence or is he to limit his instructions to so much of the evidence as is within the scope of the pleadings. The proper answer is believed to be this: If neither party has objected to the evidence of the ground of variance, the judge is to instruct the jury on the whole of the evidence, the rule being that a variance between the pleadings and the evidence is no ground of error, unless the evidence was objected to upon this ground at the time it was offered." Thompson on Trials, 2310-2311. Thompson was not a maxim man, but belonged with that class which says: "To Hades with the maxims." Those who have followed the leaders of this extraordinary assumption find themselves at sea without rudder or compass and the states wherein this heresy has taken root have lost whatever of jurisprudence they had established, and for the life of them they do not know what the matter is. If they had learned the fourteen conserving principles of procedure expressed in the maxims, they would have had no trouble at all and would not have been saying, "to Hades with the maxims," where their jurisprudence is now to be found as a result of its failure to be guided by them. This might be called proxy. The maxims are from everlasting to everlasting because they are selfevident truths, without which government cannot exist and with which there is no need of a written constitution and which must be regarded as existing wherever there is a written constitution, a thing thoroughly understood by Marshall. England has no constitution other than the conserving principles found in them. The conserving principles of the British government did not come from Hades, because they are eternal truths, and act. no beneficent government can exist without them. Guided by the maxims Cicero, Bacon, Mansfield, Story, Kent, Marshall and Field, and many other profound jurists of all time, would have identically the same idea of procedure. The best expression of their idea to be found any where is the English judicature The territories which are growing into states can not do a better thing for them than to adopt the English judicature act, just as the state of Connecticut has. They should insist on every judge learning the maxims and get the idea so deeply impressed upon the minds of the people that the best way to have good government is to be able to secure the services of their ablest good men on the bench particularly. Turning back to the examples, the Thomp son idea has taken root in New York, Indiana, Illinois, Missouri, and Colorado, and some of the territories. Of late Missouri has emphatically repudiated it. In these states we find the worst conditions relative to their jurisprudence with constantly increasing opinions in which principles are neglected. Other states are more or less infected with this heresy. Massachusetts which has adhered to the rule laid down by Judge Story, above quoted, is regarded as having the best common law decisions of all the states. Connecticut today is doing fully as good work as Massachusetts and Florida, North Carolina, Wisconsin and many others of the eastern and southern states have been keeping close to this, consequently have not been so frequently misled by the flood of case law with which the land is deluged. One of the great features of the English judicature act is that the judges determine the rules of procedure and Lot parliament. One of the worst features of state government is, that the legislatures are given power to regulate procedure and have demonstrated the fact that a "little knowledge is a dangerous thing." It would seem as though enough had transpired to arouse the bar of the country to determined action. Our great law schools which have been absolutely unmindful of the importance of the greatest matters a lawyer must consider, should be stirring in the matter of a uniform procedure, which is nothing more than the logic of well settled principles, and abandon the heresy they have been spreading abroad, that procedure is a local matter. NOTES OF IMPORTANT DECISIONS. NEGLIGENCE-TELEPHONE WIRES LEFT IN HOUSE AFTER TERMINATION OF CONTRACT WHEN CONDUCTING LIGHTNING INTO HOUSE CAUSING DAMAGE, QUESTION ONE FOR JURY.— The case of Evans v. Eastern Telephone & Telegraph Co. (Ky.), 99 S. W. Rep. 936. is interesting and novel and should serve as a warning to telephone companies leaving wires in a house after termination of contracts. It appears from the opinion of Hobson, J., that Lewis Evans owns a house and lot in the town of Proctor, Lee county, Ky. In August, 1902, he made a contract with the Eastern Telephone & Telegraph Company by which it placed a telephone box in his house connected by wire to the defendant's exchange, and he agreed to pay it the sum of $1 a month for a period of 12 months for the use of the telephone. At the end of the year he notified the telephone company to remove the telephone box and wires from his house. It took out the telephone box but failed to remove the wires, simply cutting them loose from the telephone box and leaving them in the house. Thus things stood until July 10, 1904, when there was a severe thunderstorm and the lightning struck a locust tree not far from Evans' house to which the wire of the telephone company was attached. The lightning tore up the tree and passed along the wire into the house, tearing up the room in which the wires had been left and damaging the property. The wires had remained in his house about 10 months after the telephone box was taken out before the house was struck by lightning. During this time Evans knew that the wires were still in the house, but did not request the telephone company to take them out, not knowing that it was dangerous for the wires to remain attached to the house after the box had been taken away, this being the first experience he ever had with a telephone. He sued the company for damages to the house, charging that the loss was due to its negligence. The defendant filed an answer denying the allegations of the petiton. On the trial the plaintiff proved, in substance, the facts stated. The court peremptorily instructed the jury to find for the defendant. This was done, and, judgment having been entered dismissing the plaintiff's petition, he appealed. The court said: "It is insisted that the loss was due to the act of God, and that the plaintiff was as much responsible for the trouble as the defendant. While lightning is the act of God, the carrying of the lightning in the plaintiff's house on its wire which it had left in the house was the act of the defendant, and it was a question for the jury whether the defendant had used such care as might be reasonably expected of a person of ordinary prudence under the circumstances. The plaintiff had ordered the defendant to take out both the box and the wires, and it was a question for the jury whether he, by his want of care, contributed to the loss, or acquiesced in the wires remaining in the house when he knew, or by ordinary care should have known, the danger. He had once notified the company to take out the box and the wires, and, though he knew that they had not complied with his request, he may not have known that they had so left the wires as to be a source of danger. In 27 Am. & Eng. Ency. of Law, 1017, the rule is thus stated: In placing wires for conducting electricity into a house, a telephone company owes the persons living there the exercise of reasonable care, proportioned to the known dangers of the conditions, to prevent the wires acting as conductors of lightning into the building, and it is liable for damage resulting from neglect to provide against this danger. Especially is it liable where damage from lightning occurs through its failure to remove its wires when the person living in the house has ceased to subscribe for a telephone." WHAT CONSTITUTES MALICIOUS MISCHIEF?HARMLESS ERROR-The case of Davis v. Chesapeake & Ohio Ry. Co. (W. Va.), 56 S. E. Rep. 400, presents some interesting features. The appeal was taken by the railway company to recover a judgment for $900, which was the award of a jury. The facts in the case show that the plaintiff (Davis) on the 9th day of February, 1904, became passenger at Huntington, W. Va., on train No. 6 of the defendant company, running east through Kanawha and Fayette county. That he bought a ticket to Malden, in Kanawha county. That afterwards he decided to continue his journey to Paint Creek Junction, in said last-named county. That he was unacquainted with the location of Paint Creek Junction. That he did not hear the name of that station called, and did not get off of the train at that point. That, after passing that station, the conductor requested payment of additional fare from the plaintiff. That plaintiff said he had paid his fare, and refused to pay additional fare, and requested the conductor to let him get off of the train. That the conductor then placed plaintiff under arrest, and in charge of the brakeman and pumpman, employees of the defendant company. That at Handley, in Kanawha county, the plaintiff asked those (or one of them) in charge of him, the conductor not then being in the car, to let plaintiff get off of the train, saying: "If you will let me off, I will walk back. I will pay you to Handley." That the plaintiff was not permitted to get off the train at Handley. That he was then taken on the train to Montgomery, in Fayette county, and turned over to the chief of police of that town, by the conductor or by his direction. That plaintiff was placed by the chief of police in the "lockup” in said town until the next day, when the same train again arrived at Montgomery. That plaintiff was then brought before the mayor of said town and tried, the conductor appearing against him, and fined $10, and sentenced to imprisonment for 10 days. That plaintiff was then placed in said "lockup," and on the next day again brought be fore the mayor, discharged, and his fine remitted. In some particulars the evidence is conflicting. The conductor testified that while the train was at Paint Creek Junction he said to plaintiff: "This is your station," and that plaintiff replied: "No, it ain't. I know the road. This ain't Paint Creek." The conductor, when asked for the reason why he took plaintiff (and another with him) to Montgomery, after leaving Paint Creek, said: "To get fare if they were going to ride. Lots of people get on and pay to a station, and then do not get off at that station." There are other features of the evidence which it is unnecessary to detail. There was a demurrer to the declaration, which was overruled. The declaration contains but one count. No point was made in argument in this court on the demurrer, and the declaration seems to be entirely sufficient as a declaration for false imprisonment. Two grounds are relied on by defendant for reversing the action of the trial court in refusing to set aside the verdict and award a new trial. They are: (1) That the court misdirected the jury in giving instruction No. 1 for plaintiff; (2) that the damages found by the jury are excessive. Instruction No. 1. for the plaintff, is as follows: "The court instructs the jury that if they believe from the evidence that the plaintiff, without just cause, was arrested after he became a passenger on one of the defendant's trains, and during the time that he was on such train, either by the con ductor in charge of such train, or by another employee of the defendant by order of the said conductor, that the act of the conductor, or of said employee acting under the orders of said conductor, was the act of the defendant, the Chesapeake & Ohio Railroad Company." The defendant contends that the question presented is this: "Had the conductor reasonable grounds to believe that the plaintiff was trying to beat his way without paying fare?" And some of the defendant's instructions were based on that theory. Viewing the evidence in the most favorable light for the defendant and assuming that the plaintiff fraudulently continued on the train, refusing to pay fare (which we do not decide), of what criminal offense was there probable cause to believe him guilty? If the plaintiff fraudulently remained on the train refusing to pay fare, he became a trespasser, and might have been ejected from the train in a proper manner; no more force being used than was necessary for that purpose. Grogan v. C. & O. Ry. Co., 39 W. Va. 415,19 S. E. Rep. 563; Moore on Carriers, 553, 747. It does not follow that, because the plaintiff was a trespasser in the eye of the law relating to a civil action for damages against him, he was guilty of a criminal offense. Various offenses relating to railroads and railroad property are provided by statutes, such as trespassing upon any railroad car by jumping on or off thereof (section 31a, ch. 145, Code 1906); maliciously destroying, removing, or injuring railroad property |