guess; others in a like way laid off, entered, and secured patents for similar large tracts, regardless of whether they covered or overlapped former surveys until it was not unusual for the same land to be the subject of several different grants. The owners of these grants lost confidence in their integrity and failed to pay taxes assessed, and persons seeking to settle found themselves wholly unable to determine from whom to buy a sound title. The result was that many acts were passed with a view to correct the evils thus created. Forfeitures for failure to pay taxes were declared, and then these forfeitures were repealed by other acts allowing redemption to be made within specific times. Finally, in 1837 and 1838, acts were passed prohibiting redemption of all delinquent and forfeited lands from and after July 1, 1838, and providing for their sale for the benefit of the school fund by a commissioner of delinquent and forfeited lands appointed in each county, under decree of the circuit courts of law and chancery.

By these acts these forfeited titles, good and bad, for what they were worth, became reinvested in the commonwealth. By their sale provisions it was proposed to start over again, and by means of the court's decree of confirmation and authorization the deed of the commissioner practically became a new grant from the commonwealth for the land sold.

But almost from the beginning of these forfeiture acts and those relieving such forfeitures and extending the times in which to redeem, it was apparent that actual settlers had purchased from junior grantees and were in actual possession and paying taxes to the state. To protect those, provisions were made allowing such settlers in actual possession and paying taxes to hold their lands as against senior forfeited titles.

In March, 1842, an act was passed that such forfeited senior title should be transferred to the holder of a junior grant, provided such junior grantee had paid all taxes charged and chargeable against him, thus making the junior grantee in effect, to the extent of any overlap, the senior upon the sole condition that he had upon his part paid all taxes charged or chargeable upon the lands embraced in his junior grant, and not upon the further condition, as theretofore, of his also being in actual possession.

The Welch title, overlapping by these 172 acres in controversy the Banks patent, was forfeited and sold in June, 1842, 14 days after this last-named act went into effect, by the commissioner of delinquent and forfeited lands, and the defendants now claim that by the provisions of this act their junior grant of 1822, embracing this 172 acres, became the senior one and gives them the right to the land. Whether or not it does depends upon whether from 1822 to 1842 their alienors had paid all taxes "charged or chargeable" upon the 600 acres embraced in the Banks grant.

[1,2] It seems clear to us that, in order to defeat the commonwealth's right to retake and sell the land embraced in the senior forfeited grant and to regrant the same to a new purchaser in good faith, the obligation is upon those holding under the junior grant to show strict compliance with the requirements of this act of 1842, before they can claim that the senior grant has been transferred and vested

in them. This they have failed to do. The evidence shows that, although this junior grant was dated July 2, 1822, no assessment of taxes, nor payment of taxes chargeable thereon, were made on the 600 acres until 1825. Such taxes were, under the tax laws of Virginia then existing, clearly due and payable for the years 1823 and 1824, and there can be no question from the evidence that such taxes were not paid. It would seem from the evidence further that the taxes on the land were not paid for the years 1832 and 1833. Certain it is that taxes were assessed for those years and the land returned delinquent for nonpayment, and no redemption is shown. However, it may be assumed from the fact that no sale for delinquency was made, and the grantees of the land have since continued payment, that such question as to those two years would have been one of fact for the jury, and therefore we put aside all further consideration of that matter. The failure to pay all taxes for each and every year by the junior grantee was imperative to give him the benefit of the act of 1842. He failed to pay for the two years of 1822 and 1823, and therefore the right to plead the benefit of this act never has accrued to him or his alienees, and the Welch title, sold and regranted by the commonwealth by and through Beckley, the commissioner of delinquent and forfeited lands, to the alienors of plaintiffs, must be held to be the senior and superior title. It also appears that the plaintiffs' predecessors on title obtained a deed from Beckley, commissioner of forfeited and delinquent lands, in 1843, and taxes have since been paid under this title. For five years after 1875, on behalf of the defendants, only an undivided half interest in the entire tract claimed was assessed as 178 acres. The failure to have assessed and to pay the taxes on the remainder of this undivided interest produced a forfeiture of all, and this forfeiture inured to the benefit of the plaintiffs paying the taxes on all and holding a conveyance from the state through Beckley, commissioner. Smith, trustee, v. Tharp, 17 W. Va. 221; Toothman v. Courtney, 62 W. Va. 167, 58 S. E. 915, 921; Rowland Land Co. v. Barrett, 70 W. Va. 704, 75 S. E. 57; Lawson v. Pocahontas, etc., Co., 73 W. Va. 296, 81 S. E. 583; Caretta Ry. Co. v. Fisher, 74 W. Va. 115, 81 S. E. 710; Ewart v. Squire, 239 Fed. 34, 152 C. C. A. 84, decided by this court December 2, 1916.

[3, 4] As regards the action of the court below, sustaining the demurrer to the plea in abatement the assignment of error in relation thereto does not seem to be insisted upon by counsel for defendants, and rightly so. The cases of Gordon v. Gilfoil, 99 U. S. 168, 178, 25 L. Ed. 383, and Risher v. Wheeling Roofing & Cornice Co., 57 W. Va. 149, 156, 49 S. E. 1016, 1019, very clearly established the two propositions :

(a) "That the pendency of a suit in a state court is no ground for a plea in abatement to a suit upon the same matter in a federal court;" and (b) "that two causes, one at law and one in equity, are ex necessitate so dissimilar that the pendency of one cannot be pleaded in abatement of the other."

We see no error in the action of the court below in directing the verdict for the plaintiffs, and its judgment in this case must be affirmed.

(244 Fed. 397)

BARRETT v. VIRGINIAN RY. CO.

(Circuit Court of Appeals, Fourth Circuit. July 5, 1917.)

No. 1521.

1. MASTER AND SERVANT 125(1)—INJURIES TO SERVANT-DEFECTIVE APPLIANCES KNOWLEDGE OF MASTER.

A master does not insure that appliances are in a safe and suitable condition, and to entitle a servant to recover for personal injuries, it must appear that the master had actual or constructive knowledge of the defect alleged to have caused the injury.

2. MASTER AND SERVANT

278(14)—INJURY TO SERVANT-KNOWLEDGE OF

MASTER-EVIDENCE-SUFFICIENCY.

In an action for injuries alleged to have been caused by the defective steps of an engine which plaintiff, as foreman of defendant's roundhouse. was required to repair, evidence held insufficient to show that the defendant had either actual or constructive notice of the defect.

3. WITNESSES 397-IMPEACHMENT-CONTRADICTORY STATEMENTS-SUBSTANTIVE TESTIMONY.

Testimony of prior statements introduced to contradict the foreman could only be considered for that purpose, and was in no sense substantive evidence.

4. MASTER AND SERVANT 265(13)—ASSUMPTION OF RISK-PATENT DEFECTS. If the defective condition of the step of an engine was so patent as to be readily observed by every one, and plaintiff before he was injured made three trips over the step, he would be deemed to have assumed the risk incident to his employment.

5. DISMISSAL AND NONSUIT 30 VOLUNTARY NONSUIT-MOTION-TIME. Plaintiff was not as a matter of right entitled to a voluntary nonsuit after the court had decided to direct a verdict for defendant, as a plaintiff should elect whether to take a nonsuit at the time of the making of a motion for a directed verdict.

In Error to the District Court of the United States for the Western District of Virginia, at Roanoke; Henry Clay McDowell, Judge. Suit by S. D. Barrett against the Virginian Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

W. L. Welborn, of Roanoke, Va. (Welborn & Jamison and John G. Challice, all of Roanoke, Va., on the brief), for plaintiff in error.

H. T. Hall, of Roanoke, Va., and G. A. Wingfield, of Norfolk, Va. (Hall & Apperson, of Roanoke, Va., on the brief), for defendant in

error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD, Circuit Judge. This is a suit instituted by plaintiff in error, plaintiff below, in the District Court of the United States for the Western District of Virginia, to recover damages on account of injuries sustained by plaintiff, who was the foreman of the roundhouse, while attempting to clean out a sand pipe which was stopped up. Plaintiff was employed by the defendant as a machinist at Elmore, W. Va., at which a roundhouse is maintained where engines are stored and certain repairs are made.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Among other things, plaintiff, by virtue of his employment, was required to repair engines and other rolling stock at that point. The engine upon which plaintiff was working at the time he sustained the injury was being used and had been used for some time, in pusher and helper service. This particular engine had been placed upon what is known as the "ready track" to be employed in taking a train out of Elmore. After being placed, the engineer in charge discovered that the sand pipe was stopped up, and plaintiff was requested to clean it out. In order to perform this service it was necessary for the plaintiff to climb upon the engine. In front of the engine there were steps leading from the ground up over the pilot to the running board. In performing this service plaintiff made several trips up on the engine, and while coming down on the last trip he slipped and fell and sustained the injury upon which this action is based.

Plaintiff says that shortly after he had fallen and had been removed by other employés to a point several feet in front of the engine he looked at the engine and remarked that the step from which he slipped and fell was slanting from one to one and a half inches forward. However, there was no evidence offered tending to corroborate this statement by the other employés who were present. The other employés present testified that they did not observe that the step was slanting or that there was anything wrong with it. In addition to the plaintiff's testimony plaintiff introduced two other witnesses who said that they examined this step a month or two after the accident, and that it was slanting forward; the front portion of the step being from one to two inches lower than the rear portion.

Both the day and night foreman of the roundhouse at Elmore, who had charge of keeping the engine in repair, testified that they never knew there was anything wrong with the step. The engineer who had been running the engine and the hostler who had charge of it in the roundhouse also testified that they had no knowledge of any defect in the step. There was no evidence produced by the plaintiff to show how the alleged defect in the step was caused or how long it had been in that condition.

When all of the evidence had been introduced, the defendant moved the court to direct the jury to return a verdict in favor of the defendant. This motion was opposed by the counsel for the plaintiff, and after the motion was fully argued the court took the same under advisement from Saturday afternoon until Monday morning. When the court convened Monday morning the judge rendered an opinion in writing, which is made a part of the record, sustaining the defendant's motion to direct a verdict. After the court had rendered its decision, the plaintiff asked to be permitted to take a voluntary nonsuit. The court refused to grant plaintiff's request, and directed the jury to return a verdict in favor of the defendant, and judgment was entered accordingly. The plaintiff excepted, and the case now comes here on a writ of error.

[1] Only two points are involved in this controversy: First, as to whether the court below erred in directing a verdict in favor of the defendant; second, as to whether the court erred in refusing to permit

the plaintiff to take a nonsuit. It is earnestly contended by counsel that plaintiff's injury was due to the failure of the defendant to provide a safe and suitable place in which plaintiff was required to work at the time he was injured; in other words, it is insisted that the step on the engine was carelessly and negligently constructed, and that this was the proximate cause of plaintiff's injury. While it is well settled that the master must exercise ordinary care in providing for the use of servants reasonably safe, sound, and suitable machinery and appliances, and also to use ordinary care to discover and repair defects, the master does not insure or guarantee that the machinery or appliances are in a safe and suitable condition, and where defects exist the master is not held to be guilty of negligence unless it appears that he knew, or by the exercise of ordinary care could have known, that such machinery and appliances had become defective and were in an unsafe condition. In other words, it must appear, in order to entitle the plaintiff to recover, that the master had either actual or constructive notice of the defect alleged to have caused the injury, and these facts must be established by legal evidence. Washington, etc., Railway Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235; Norfolk & Western Ry. Co. v. Reed, 167 Fed. 16, 92 C. C. A. 478; Virginia, etc., Wheel Co. v. Chalkley, 98 Va. 62, 34 S. E. 976.

[2] There are no facts or circumstances from which the jury could have inferred that the master had either actual or constructive notice of the alleged defective condition of the step. To entitle the plaintiff to recover, the burden is upon him to either show that defendant had actual or constructive notice.

In determining this point, it should be borne in mind that no witness testified that this step was defective before the accident occurred. Indeed, the first evidence we have of the existence of the alleged defective step is the testimony of the plaintiff, who says that he did not discover it until after he had been injured. From the nature of things, the respective engineers, firemen, and other employés who had from time to time had charge of this engine would have observed as glaring a defect as the one described by the plaintiff; therefore, if the step was defective in any respect, it appears that the defendant company could not have had either actual or constructive knowledge of the same prior to the time plaintiff was injured. It further appears that no one ever fell from the step or was injured in any way on account of its condition.

It

Counsel for plaintiff insists that the defective condition of the step was in plain view, and could have been seen even by casual observation, and, further, if the foreman had exercised even ordinary care as to the condition of the engine, he could have discovered the same. appears from the testimony of plaintiff that the accident occurred when he was returning from the third trip to the point where he was working on the engine, and it further appears that he used this step each trip. If the defect was so obvious and easily discovered the plaintiff would undoubtedly have observed it, but, as we have stated, he testified positively that he never discovered that anything was wrong