ductor or anybody else to light you across | ger jumps from the train to save himself, the bridge? Answer. As soon as we came and is injured; in which case the injured to a halt I saw no more of him. He made person has his action, though it may turn his escape or fled. (Laughter.)" It is only out that if he had remained on the train he necessary to compare, without comment, would not have been injured. Railroad this answer, so clearly intended not only Co. v. McKenzie, 81 Va. 71. to fasten willful negligence upon this conductor, but to blacken his character with infamy, with the statement just previously made by him that on getting Pickleseimer across the river he met Capt. Limeberry, the conductor from Charlotte to Danville, and asked him for camphor, and gave him some money, and he (Limeberry) brought some brandy. There is a vast deal more of even this witness' unbroken statement in chief; and when we come to the point when he is plied with a great number of questions in his continued examination in chief and in his cross-examination, it would take more than the space of even a very long opinion to refer to it all. Reference has been made to it sufficiently to illustrate its remarkable character, and to show that it is in conflict, not only with Pickleseimer, but with itself. The case in hand belongs to that class of which the case of Railroad Co. v. Morris, 31 Grat. 200, is an example. In fact, the case here is ruled by that case. There the injured party, Morris, was a passenger in a caboose car attached to one of the company's freight trains from Wolf Trap to South Boston,-two stations on the company's road, in Halifax county. Soon after Morris entered the caboose he fell asleep. After the train had left the Wolf station, the conductor waked Morris, and took in his ticket. When the train neared South Boston, the point of Morris' destination, the conductor, finding Morris again asleep, awoke him a second time, and told him he was at South Boston. The train was then traveling at the rate of four miles per hour. It passed the freight-house and reception-room at the station without stopping; and when the locomotive reached the frog on the west side of the freighthouse and reception-room it stopped, and the conductor, finding Morris still in the caboose asleep, again aroused him. The train stopped about a minute, and Morris could have gotten off while the train was not in motion. The conductor then went to the other end of the car, and, looking back, saw that Morris did not get up. He returned, shook him, and told him to get up; he was at Boston. And Morris said that the conductor told him to get off. Immediately after waking Morris the last time, the conductor went out at the end of the caboose with his lantern in his hand, and took his stand on the stationary platform about two and a half feet from the platform of the car. The train commenced backing, and Morris got up and walked out to the end of the car, and jumped off, not knowing, as he said, which way the car was going; and the caboose car and several other cars ran over and seriously and permanently injured him. That was a much stronger case against the company than the present. In delivering the unan Then, from the plaintiff's own testimony, he brought the misfortune of which he complains upon himself, and he cannot recover from the railroad company therefor. He had before shipped cattle over this company's road, and at that time the caboose was left on the South Danville side of Dan river, and another caboose attached on the North Danville side. He, then, on the occasion in question, knew how and what to do on arriving at South Danville. But when the train stopped at Danville, instead of doing what his previous experience as well as judgment taught that he should do, -instead of getting on top of the stock-car, as he first started to do,-he entered into treaty with an irresponsible brakeman, who was at the end of his run, and utterly without authority, to stay and guard wood for such person; and then, when it became necessary to abandon his place as wood guard, he, in a dark, rainy night, when the cars were wet and slippery, attempts to repair the effects of his negligence and want of ordinary care by making an effort to mount upon top of a car, with his overcoat on, and a clumsy satchel in his right hand, fell, and was very seriously in-imous opinion of this court in that case, jured. He was guilty of an act which no BURKS, J., said: "These facts, in our opinsensible man, in the exercise of ordinary ion, show the defendant to have been guilty care and caution, could be expected to be of culpable negligence; and this negligence guilty of. It was, in fact, a desperately was a proximate cause of the plaintiff's rash act, superinduced by no imminent peril injury. After the conductor discovered traceable to the negligence of the railroad that the plaintiff, when aroused, did not company. No danger or peril was present get off while the train was standing for a except that which he rashly brought upon very short period, but had again fallen himself. It does not appear that any train asleep, and he found it necessary to wake was near and approaching from either di- him again, he should not have put the train rection. If, considering all the circum- in motion until the plaintiff could leave the stances, Pickleseimer had thrown himself car; or, if put in motion, he should have in front of the wheels of the moving train cautioned him not to attempt to get off with the foolhardy idea that the train until the train was stopped. Instead of would stop before hurting him, the reck-pursuing that course, the proof is that he lessness of the act would have differed from told the plaintiff to get off; and the train what he did do only in degree, not in prin- immediately commenced backing, at what ciple. This case therefore does not fall with-speed was not shown. The company was in the class of cases where a passenger is also in fault in not having stationary excused for his rash act by reason of some imminent peril confronting him due to the defendant's negligence,-as, for instance, if a collision seems imminent, and a passen lights. There were none such, and the only lights used were the two hand-lanterns before mentioned. This defect made it all the more incumbent on the conductor to the error of the court in this particular. For the reasons aforesaid our conclusion is that the court below erred-First, in misstating the law to the jury; and, second, in refusing to set aside the verdict, and grant a new trial. The judgment must therefore be reversed, the verdict set aside, and the cause remanded for a new trial, to be had in accordance with the views herein laid down. Judgment reversed. (86 Va. 337) WALKER V. GRAYSON et al. 17, 1889.) VENDOR AND VENDEE CONSTRUCTION OF CON- exercise more than usual care and caution | ages despite his own negligence. We do In letting off passengers.' And Judge not see how argument can make plainer BURKS further said: While, however, the injury sustained by the plaintiff is directly traceable to the culpable negligence of the defendant as a cause, the evidence leaves no room for doubt that another cause, concurring with the first, was the negligence or absence of ordinary prudence and caution on the part of the plaintiff. He had time sufficient, according to the proof, to leave the car while the train was standing; and after he was cautioned the last time, if he had at once followed the conductor, who stepped onto the platform with the lantern in his hand, he might have reached (Supreme Court of Appeals of Virginia. Sept. the platform with equal convenience and safety; or if, tarrying longer, and finding the train in motion, when told to get off, he should either have declined, as he had the right to do, to obey the direction, or, if would allow him to purchase their deceased father's 1. A person agreed with his sister that, if she he chose to take the risk of getting off un-land at a judicial sale, for an inadequate price, he der the circumstances, he should have got- would settle on her a portion thereof, and, after the ten off on the stationary platform, which, purchase, he put her in possession of such portion. as shown, was along-side of the train. Having agreed after his purchase to hold the land Such would have been the dictates of com- in partnership with certain parties, he sold a part mon prudence. He did not heed them, but, of it, including the part of which his sister was in possession, receiving in part payment a certain according to his own statement, he got up, other tract, of which he put his sister in posseswalked to the end of the car, and 'jumped sion, agreeing to convey the same to her in conoff,' not knowing, nor seeking to know, in sideration of certain money which he owed to which direction the train was moving. her, and her relinquishment of all interest in the This would seem to be something more former tract. Held, that the sister must be rethan the want of ordinary prudence and garded as a purchaser of the latter tract, having caution. It appears to be gross negligence, brother's partners and to the dower of his widow. an equitable title paramount to the interest of her -extreme recklessness." It cannot be nec2. An attorney cannot be allowed to consent essary to adduce arguments to show the on behalf of infants to a decree when he is also perfect application of these remarks to ev-counsel for parties whose interests are adverse to ery feature of the facts in the present case. such infants. Grant, then, as we do, that the company in this case was culpably negligent in not having stationary lights, and a better and safer walk, outside of the track, over this bridge, still the fact stands out in proof that Pickleseimer was, by reason of his own want of due care and caution, and by his own reckless act, the author of the misfortune which befell him, and therefore he cannot recover therefor of the railroad company. 3. Depositions cannot be read against infants where it does not appear that their guardian ad litem was served with notice. G. R. Calvert, for appellant. Mr. Parks, H. C. Allen, J.G. Newman, and E. T. Booton, for appellees. HINTON, J. This is an appeal from two decrees of the circuit court of Page county, rendered, respectively, on the 26th of September, 1885, and the 22d April, 1886, in the chancery suit of Grayson et al. v. W. H. The case might appropriately end here; Miller's Adm'r et al., which was heard but as it has to go back for a new trial in along with two other cases, the records of the court below it is proper to refer briefly which are not before us. From the record to an erroneous instruction given by the of the first-named cause, however, it aptrial court of its own motion, in lieu of the pears that many years ago Jacob Miller two instructions asked for by the defend- died intestate, leaving as his heirs his only ant company and refused by the court. children, W. H. Miller and Mary E. Walker, The court, in the erroneous instruction the present appellant. At the time of his thus given, after laying down the law upon death, Jacob Miller was considerably inthe subject of contributory negligence, debted; exactly to what extent is not added: "But a plaintiff may, under cer- shown by the record, but as it was stated tain circumstances, be entitled to recover in the argument to be about $8,000, and damages for an injury, although he may, not controverted, we may infer that that by his own negligence, have contributed to sum is not far from the correct amount. produce it." This addendum practically His estate consisted mainly of valuable destroyed the effect of the previous posi- real estate, a part of which, viz., 654% tion of the instruction, which stated the acres, at the least, was situated in the law with substantial accuracy; and was county of Rockingham, and is what is much more calculated to confuse than to known in the record as the "Jacob Miller enlighten the jury upon the law applicable Farm." Shortly after the death of the to the case. What was the nature of the said Miller, a suit in equity, under the exceptional circumstances alluded to in the name and style of Blose's Ex'r v. Milinstruction is not stated by the court, but ler's Adm'r, was instituted, to subject the the jury were left to grope in the dark, with- real estate of the intestate to the payment out light or sign to indicate the road to a of his debts; and on the 17th day of Februright conclusion, and were, in fact, left to ary, 1879, the "Jacob Miller Farm" was sold decide for themselves what circumstances pursuant to a decree of the circuit court of ought to entitle a plaintiff to recover dam-Rockingham county, entered in said cause, when the said W. H. Miller became the pur- | son, Jr., C. S. Grayson, and E. G. Booten, chaser at the price of $15 per acre, aggregat- trustee, filed their original bill, and in ing $9,811.37,-a sum which it would seem March, 1883, an amended and supplemental from the sales that have already been made bill, in which they aver that W. H. Milof a large part of the property was about ler had bought the "Jacob Miller Farm" two-thirds the value of said property. And at $15 per acre; that said W. H. Miller the record shows, beyond question, that obtained from B. F. Grayson, Sr., B. F. he was only enabled to purchase the prop- Grayson, Jr., and C. S. Grayson the sum erty for this sum by representing to vari- of $319.37, with which the cash payment ous persons, who were present for the pur- was made; and that the said Graysons pose of bidding, that he was buying this were to be full partners with said Miller property for the primary purpose of secur- in said purchase, and in proof thereof ing a home for his sister, the appellant, they filed with their bill a paper writing, Mrs. M. E. Walker. In pursuance of this signed by said Miller. They then aver real or pretended purpose, W. H. Miller im- that with their consent and approval mediately had 100 or more acres of this said Miller sold to B. F. Coffman about 441 farm laid off and surveyed for Mrs. Walker, acres of said land for $27.50 per acre, put her in possession of the same, with all taking from said Coffman a farm in Page the buildings thereon, and she remained in county, valued at $5,000, in part payment peaceable and undisturbed possession there- for said land; and they pray that the purof, and enjoying the profits arising there- chase money due from said Coffman may be from, for a year or more, and until her re- collected; that the residue of the "Jacob moval to the Coffman farm, in the county of Miller Farm" and the whole of the Coffman Page, in April, 1880. On the 6th day of March, farm may be sold; that the purchase 1880, B. F. Coffman bought of W. H. Mil- money due upon the purchase by W. H. Miller 441 acres of the "Jacob Miller Farm," at ler of the "Jacob Miller Farm" be paid; and $27.50 per acre, which included the 100 acres that the residue of the fund arising from which he (Miller) had set apart for his sis- said sales, and all rents and profits, be ter, and of which he had given her posses- equally divided among B. F. Grayson, Sr., sion, and gave him in payment a tract of B. F. Grayson, Jr., C. S. Grayson, and the 157 acres of land in the county of Page, estate of W. H. Miller. To this bill, F. C. V. known as the "Coffman Farm," and val- Miller, the widow, and Wilber Miller and ued at $5,000, and his bonds for the balance. Baby Miller, the children of W. H. Miller, The record further shows that the moth-B. F. Coffman, W. J. Kite, B. Raines, Mier of Mrs. Walker and W. H. Miller was, at chael Long, Philip Long, Peter Long, M. L. her death, seised of 62 acres of land as her B. Grayson, and Mary E. Grayson, and separate estate; that it descended to W. Fielding Raines are made defendants. In H. Miller and Mary E. Walker jointly; that September, 1884, John C. Walker and his Miller sold this land to one W. J. Kite, at wife, the appellant, Mary E. Walker, $25 per acre, Mrs. Walker uniting in the filed their petition in this suit, in which, deed; that Miller received the entire pur- after setting forth such of the foregoing chase money, but never paid any portion of facts as are pertinent to their case, they his sister's share, either to her or her hus- pray for such special and general relief as band; that instead of paying it over to his they may be entitled to. Thereupon such sister he executed, over his signature and proceedings were had that two decrees seal, on the 20th of March, 1880, a paper were rendered on the 26th day of Septemwriting, in which, after reciting the above, ber, 1885, and 22d day of April, 1886. By he obligated himself to convey to her lands the first of these decrees it is, among other in the county of Page of the value of her things, adjudged and decreed "that B. F. said share; that in April, 1880, W. H. Mil- Grayson, Sr., B. F. Grayson, Jr., C. S. ler removed his sister from the "Jacob Mil- Grayson, and W. H. Miller were equal ler Farm," and placed her in possession of partners in the purchase of the Miller farm, the "Coffman Farm," of which she held in the county of Rockingham, and by said open and undisputed possession until this purchase became joint owners thereof, and suit was brought; that W. H. Miller never equally entitled to all the profits arising received a deed for any of this real estate from the rental, use, or sales thereof, and during his life-time, and was therefore nev- that said four named parties are joint owner able to make a deed to Mrs. Walker. In ers in the Coffman farm, in Page county, subthe afternoon of the day on which W. H. ject to the vendor's lien resting thereon, Miller died, B. F. Grayson, Sr., called at with like joint interest in all profits or inthe house of the dying man, and had an in- comes resulting therefrom; that Mrs. F. terview with him. There were present in V. C. Miller is not entitled to dower in said the little 14 by 16 room where the sick man Miller and Coffman farms, as claimed in was lying, or at the only door to this her petition, but only in W. H. Miller's inroom, and within hearing distance, Mrs. terest therein, viz., in one-fourth of the unWalker, Mrs. Miller, and the said B. F. Gray-sold part of the Miller farm, and in oneson, Sr. In that interview W. H. Miller fourth of the remainder of the Coffman farm said to his wife that he owed B. F. Gray- which would be left after paying the venson, Sr., three hundred and some dollars, dor's lien resting thereon; and that Walker for which Grayson had nothing to show, and wife are not entitled to the relief and he wished her to see it paid; but not asked for in their "petition and bill of one word was said by either Grayson or complaint," but that W. H. Miller's estate W. H. Miller about the existence of any part- is indebted to Mrs. Mary E. Walker in the nership as to the "Jacob Miller Farm," or sum of $775, with interest thereon from the the "Coffman Farm." This occurred in the 20th March, 1880. The decree then goes on month of November, 1881. In March, 1882, to direct a sale of the Coffman farm, and the appellees, B. F. Grayson, Sr., B. F. Gray- the unsold part of the Miller farm, and re leases John C. Walker and Mary E. Walker | those who value it highest at $100 per acre, from all liability for rent or occupation of any of the lands covered by the decree. In the second of these decrees the court overrules the exceptions of Walker and wife to the report of sale, confirms the sale of the Coffman farm, and the sale of the unsold part of the Miller farm, and directs that, after various disbursements and payments therein provided for are made, the proceeds of the various land funds shall be treated as one common fund, and that the balance remaining after the reservation of enough to pay any further unprovided-for costs which might arise in the cause should be divided into four equal parts, and disbursed as follows: One-fourth to B. F. Grayson, Sr.; one-fourth to E. G. Booton, trustee for B. F. Grayson, Jr.; one-fourth to C. S. Grayson; and one-fourth-the part of W. H. Miller's estate-to be distributed in the manner indicated in the decree. and $775 in money. And out of this $775 it is not improbable that W. H. Miller paid B. F. Coffman the $600 which Coffman, in his answer, says Miller paid him at the time he purchased the Coffman farm. That Mrs. Mary E. Walker thus acquired the equitable title to the Coffman farm seems to us to be unquestionable; and that she gave a valuable consideration for it in the beginning of these transactions, by surrendering her rights in the enhanced price which the "Jacob Miller Farm" would have brought if sold under ordinary circumstances, we regard as equally beyond doubt. Whether the consideration given in the first instance was full and adequate is a matter of no importance. W. H. Miller certainly thought so; and in the exchange by which Mrs. Walker acquired the Coffman farm she must have surrendered as much as Miller could possibly have lost by the first transaction. Under these circumstances, Mrs. Walker must be regarded in a court of equity as the purchaser and owner of the Coffman farm; nor can her title be in any wise affected by the alleged contract of partnership between W. H. Miller and the Graysons; for if we assume, for the sake of the arguJ.ment, that contract to be proved, it was not entered into until nine days after the sale, as we have seen, and could not affect Mrs. Walker, whose rights had been previously acquired, and who never knew of their pretensions until the claim was preferred, after the death of her brother, the said W. H. Miller. Now, each of these decrees is erroneous in two fundamental particulars. They are so -First, in declaring and decreeing that the Coffman farm was partnership property; and, second, that Mrs. Miller was entitled to dower in her husband's one-fourth there of,-neither of which propositions is true. By the death of W. H. Miller the lips of C. Walker and his wife, Mary E. Walker, became sealed, and each of them was thereafter inhibited by the express words of the statute from testifying as to what was the agreement and understanding between Mary E. Walker and her brother, W. H. Miller. But the acts and declarations of that brother, taken in connection with the Now, from what has been said it would conduct of Walker and his wife, are fairly seem that the circuit court erred in holding susceptible of but one construction, and that Mrs. Walker was not entitled to the that is that there was an agreement that, Coffman farm, and in decreeing that Mrs. if they would permit the "Jacob Miller F. V. C. Miller was entitled to dower in part Farm," or, as it is sometimes called, "The of said farm, and that said farm should be Miller Farm," to be bought by him at a sold. It is argued, however, that the decree greatly depreciated price, he would settle of September 26, 1885, was a consent decree, upon her at least 100 acres of that farm, in- and that we are precluded by this fact from cluding the mansion-house, as a home. looking into the merits; but in this they are When this agreement was made between mistaken. As a general rule, a decree or these parties, the real or pretended agree-order made by consent of counsel is not the ment of partnership between Miller and the subject of appeal, (2 Daniell, Ch. Pr., 4th Graysons had no existence; for that agree- Amer. Ed., 973; Burton v. Brown's Ex'rs, 22 ment, if ever made, was not entered into Grat. 13; Thompson v. Maxwell, 95 U. S. until February 26, 1879,-nine days after the 391; Water-Works Co. v. Barret, 103 U. S. Bale was made. To this agreement between 516;) but this was in no sense a consent dethe brother and sister various parties, who cree. Here the parties were not all sui juris, had come to the sale, may be said, in a cer- but some of them were infants, for whom tain sense, to have been parties; for, in or- no one was authorized to consent. It was der to enable W. H. Miller to effectuate and admitted, however, by one of the counsel carry out this purpose, they, at his instance (Mr. Parks) at the bar, that he was counand request, deliberately refrained from sel for the Graysons, Mrs. F. V. C. Miller, bidding. It is equally clear that for some and her infant children, in the circuit court, reason not fully disclosed by the record and as such counsel consented for the chilthere was a subsequent agreement between dren; but, of course, no such thing as this W. H. Miller and Mrs. Mary E. Walker, by can be countenanced. The interests of these which he agreed, in consideration of the infants are adverse to the Graysons and $775 which he owed her for her interest in their mother, and, under such circumthe land descended from her mother, and her stances, for the court to allow counsel to relinquishing her right to the said 100 acres consent for infants would be in the highest of the Miller farm, to convey to her the Coff-degree improper, and often destructive of man farm. And this was doubtless re- their interests. garded by W. H. Miller as a good exchange, for by it he received in exchange for a farm only estimated by its former owner, B. F. Coffman, to be worth $5,000, the 100 acres of the Miller farm, including the mansion, which is estimated by those witnesses who value it at the least at $50 an acre, and by The court also erred in allowing the deposition of Peter Long to be read against these infants, it not appearing that their guardian ad litem had been served with notice. Strayer v. Long, 83 Va. 715, 3 S. E. Rep. 372. Our conclusion therefore is that both of these decrees are erroneous in the particulars indicated, and that they must be reversed and annulled, and the cause must be remanded to the circuit court of Page county, with directions to set aside the sale of the Coffman farm, and to have the same conveyed by proper deed to Mary E. Walker, and to be further proceeded with in accordance with the views herein expressed. (33 W. Va. 108) WALSH V. SCHILLING. * concealing himself, or by any other indirect (Supreme Court of Appeals of West Virginia. place in September, 1872, and that it is not Sept. 16, 1889.) LIMITATION OF ACTIONS cause of action arose. STATE. (Syllabus by the Court.) ABSENCE FROM THE Error to circuit court, Ohio county. On the 2d day of March, 1888, Murtha Walsh brought an action of assumpsit in the circuit court of Ohio county, basing his declaration on the note below described, and the common counts for goods sold, money lent, etc. The defendant pleaded non-assumpsit, and that action did not accrue within 10 years before suit was brought; and the plaintiff replied that on the 3d day of August, 1871, when the several promises and undertakings in the declaration mentioned were made, and previous thereto, the defendant was a resident of the state of West Virginia, and afterwards, on or before 22d day of April, 1873, departed out of the state, and had ever since resided out of it, and thereby obstructed the prosecution of the plaintiff's right; and issue was joined on this replication, and the case was tried by the court in lieu of a jury, and judgment rendered for defendant, to which Walsh has obtained this writ of error. a case within the language of the exception of a person who had before resided in this state. The letter of the statute requires. The provision of section 18, c. 104, Code 1887, in order to take such a case out of the statthat when any right of action shall accrue against ute, that the person shall have before rea person who had before resided in this state, if sided in the state. Before what? The acsuch person shall, by departing without the same, crual of the cause of action, or the making or by absconding or concealing himself, or by any of the debt, or the departure? it may be other indirect ways or means, obstruct the prose- asked. cution of such right, the time that such obstruc-state are not explicit on this point, but The decisions in Virginia and this tion may have continued shall not be computed as any part of the time within which the said right they may be construed as requiring resimight or ought to have been prosecuted, does not dence in the state at the time of the conapply when the defendant, although once a resi-tracting of the liability. In Wilkinson v. dent of this state, removed therefrom before any Holloway, 7 Leigh, 277, a person resident in right of action accrued against him, and before the North Carolina, who in Virginia contracted transaction occurred out of which the plaintiff's a debt and departed from the state, was held to be within the exception; and in Abell v. Insurance Co., 18 W. Va. 400, and in Hefflebower v. Detrick, 27 W. Va. 16, parties who assumed obligations when in the state, and then departed, were held within the exception. Prof. Minor, in his Institutes, (volume 4, p. 515,) expresses the opinion that the statute contemplates that the defendant shall once have been resident in Virginia at some time before the cause of action accrued, and not simply that the cause of action arose in the state. I think these decisions may be said to require that the defendant, to fall within this exception, shall reside in the state when the liability is incurred. In the late case of Embrey v. Jamison, 131 U. S. 336, 9 Sup. Ct. Rep. 776, arising under the Virginia statute, which is identical with ours, the supreme court of the United States held that statute not applicable when the defendant, though once a resident of that state, removed therefrom before any right of action accrued against him, and before the transaction occurred out of which the plaintiff's cause of action arose. There, the statute having been pleaded, the plaintiff replied that the defendant "had before resided in the state of Virginia, and by departing obstructed him in the prosecution of his right; and the defendant rejoined that he did not so obstruct the suit, because such removal occurred along time before any of the alleged causes of action existed or accrued, and that when said causes accrued he was a resident of Louisiana." Justice HARLAN, in delivering the opinion, says: "We are of opinion that the defendant's rejoinder to the plaintiff's replication to the plea of limitations was improperly rejected. It shows upon its face that the defendant's removal from Virginia occurred nearly 20 years before the contract in question was made, and that when the plaintiff's causes of action accrued he was not a citizen or resident of Virginia, but of Louisiana. The statutory provision upon which the plaintiff based his replication has no application Erskine & Allison, for plaintiff in error. S. G. Smith, for defendant in error. BRANNON, J., (after stating the facts as above.) The important question in this case is upon the statute of limitations. The note sued on reads: "Harper's Ferry, W. Va., Aug. 3, 1871. For value received I promise to pay M. Walsh, his heirs, etc., three hundred and twenty 26-100 dollars, with interest. JOHN L. SCHILLING." The statute commenced to run at once on it. The defendant pleaded the limitation of 10 years, the period prescribed by the West Virginia statute. To repel the bar the plaintiff relies on a departure from the state by his debtor, under section 18, c. 104, Code 1887, providing that “where any such right as is mentioned in this chapter shall accrue against a person who had before resided in this state, if such person shall by departing without the same, or by absconding or |