This case is very much like the case of Beard vs Livesay 4 W. Va. 637, and for the reasons given in that case the defendant’s first special plea should have been rejected and the instructions given to the jury at the instance of the the defendants should have heen'refused. Orchardss Hughes 3 Wallace’s Reports 73.

The judgment complained of will have to be reversed with costs to the appellants and the cause remanded.

Judgment reversed.