Volume 94 — West Virginia Reports

<p>Certiorari to review proceedings in the matter of the arbitration between the Carroll Hardwood Lumber Company and the Kentucky River Hardwood Company.</p>

<p>Sauos — Measure of Damages for Breach of Warranty of Quality of Personalty Difference Betiveen Price' Paid and Value.</p> <p>In an action for damages by the purchaser of personal property for breach of warranty of quality, the measure of re-ooYery is the difference between the price paid and the value of the article at the time of delivery.</p>

Case Certified from Circuit Court, Putnam County. Howard Aley was charged with perjury. A demurrer to the indictment was sustained; and the question certified.

Suit by the Wheeling, Ohio & Eastern Railroad Company and others against the Wheeling Coal Railroad Company and others. A demurer to the bill was sustained, and. the ease certified for review.

Proceeding by the State against Harry Goudy for nonsupport of his wife. Judgment requiring defendant to pay complainant a stipulated sum and costs, and a further monthly sum until further order of court, and he brings error.

Action by L. L. Windom and others against John Boundy. Judgment for plaintiffs in the justice’s court, and on appeal to the circuit court a verdict for defendant was directed and the proceeding dismissed, and plaintiffs bring error.

Case certified from Circuit Court, Wetzel County. . Suit by B. Walker Peterson and others against M. M. Mc-Intire and others. The court ruled on demurrers to. the original and amended bills, and certified the questions.

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Suit by the Eagle Land Company against James C. Jarrell and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Breach of the Peach — Words Held not Breach of Peace and Indictment Failing to Allege That Actual Breach of Public Peace was Caused Thereby was Demurrable; “Breach of the Peace."</p> <p>The use of abusive, profane and insulting language by a land owner to a person who is apparently digressing from the public road running through the farm, with intention of trespassing on the farm, unaccompanied by threats and causing no expectation or fear of personal violence, is not a breach of the peace at common law; and an indictment therefor-which does not aver that an actual breach of the public peace was caused by the -use of the words as alleged is demurrable.</p>

<p>Criminal Law- — ■State Cannot Attack Character of Accused, Unless First Put in Issue by Him.</p> <p>The State cannot, on the trial of a criminal case, introduce evidence of defendant’s bad character when he has not, by evidence before the jury, put his character in issue.</p>

John Marcum was convicted of unlawfully manufacturing, selling, and transporting intoxicating liquors, and he brings error.

<p>Bukglaey — .Evidence Held. Insufficient to Sustain Conviction.</p> <p>Where the only evidence adduced to support the charge that defendant entered a store building with intent to steal is that' six months after the robbery, part of the stolen goods were found in his possession and part in the possession of his' father who lived nearby, a verdict finding defendant guilty as charged must be set aside as without proof to support it. .</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Suit by Henry Marcum against Polly Marcum and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Intoxicating Liquors — Evidence Sufficient to Sustain Conviction for Possession of Moonshine Liquor.</p> <p>Evidence in a' trial for unlawfully having in possession moonshine liquor in violation of sec. 37, chap. 32A, Code, that defendant had in his possession a glass jar containing a liquid of the color of moonshine liquor, that he was apparently under the influence of intoxicants, that he concealed the jar in a small grip or traveling bag; that there was an odor of intoxicating liquor about his person and his companions who congregated around him and the jar while it was opened and on the 'ground, that when approached. by an ■officer who sought to arrest him and confiscate his liquor he remarked, “no I’ll be damned if you get my whiskey,” and thereupon resisted arrest ('being assisted therein by his companions), took the jar and his grip, entered his automobile hurriedly, and rapidly drove away while the officer was being held at bay by his companions, together with other lesser actions on his part indicating' concealment of intoxicants in his possession, will justify a verdict of guilty as charged in the indictment, (p. 693).</p> <p>2. Criminal Law — Error to Refuse instruction That Failure of Accused to Testify is Not to he Considered a Circumstance Tending to Show Quilt.</p> <p>Where the accused in the trial of a criminal case does not testify in fiis own behalf, it is error for the court to refuse an instruction asked for by him that his failure to testify is not to be considered by the jury as a circumstance, showing or tending to show his guilt, (p. 697).</p>

<p>.1. Lower — Demurrer to Bill for. Distributive Share of Deceased Husband’s Estate, Shomng Agreement to Release Rights in Each Other’s Property, Should be Sustained.</p> <p>-Where a -bill in.chancery is filed by one who claims to be the widow of a decedent, which bill prays that she be decreed the distributive share of his personal ©state, and sets up, as a part of her bill, a written agreement between her and her husband, in w-hich, in consideration of $2000.00 to be .paid to the plaintiff, they mutually agree to release any and all claims which either of them has, or may have, in the property of the oblier, and in which plaintiff releases all right of dower in the property of the decedent, that he then ¡had or might thereafter acquire, whether by. purchase or otherwise, and sets up the payment of the consideration to the plaintiff; a demurrer to the bill should be sustained. ■ (p. 771-).</p> <p>,2. Husband and Wife — Post Nuptial Agreements on Sufficient Consideration Not Forbidden by Positive Law or Public Policy.</p> <p>Post Nuptial Contracts made 'between husband , and wife, founded upon a good and sufficient Consideration and not forbidden by any positive law or public policy, are enforceable in a court of equity, (p. 772). . i</p> <p>3. Same — Widow Cannot Nave Distributive Share of Husband’s Estate Until Making or Offering to Make Restitution for Amount Received for Release of Interest in His Property.</p> <p>Where the bill of the plaintiff alleges that the personal estate of her deceased husband amounts to $'8117.89, and that she received from her- husband $2961.30 íot rele'ase of her interest in his property; she cannot recover any part of said estate as her distributive share of the same, until she either makes, or offers to make, restitution of said amount with its accrued interest from the time she received the same, (p. 772).'</p> <p>4. -Equity — Where Demurrer tc Hill, Which Cannot be Amended to Afford Plaintiff Relief is Sustained, Case Will be Dismissed.</p> <p>Where a demurrer to a bill in chancery is sustained, and said bill discloses that it cannot be amended in such a manner as to give the plaintiff the relief she seeks; the case will be dismissed, (p. 771).</p>

Action by J. E. McDonald and others against the County Court of Logan County. From a decree denying relief, and dismissing the bill, plaintiffs appeal.