Volume 40 — West Virginia Reports

<p>1. ARGUMENT OF COUNSEL — CRIMINAL LAW.</p> <p>Counsel necessarily must be allowed considerable latitude in the argument of a case, and, unless the court in a felony trial permits counsel for the state to so far transgress the rule of propriety as clearly to prejudice the prisoner, the judgment will not be reversed because of improper remarks by counsel made to the jury in argument.</p> <p>2. Argument oe Counsel — Remarks or Counsel.</p> <p>Where a criminal trial is in other respects fair, a verdict of conviction will not be set aside by this Court for improper remarks of counsel, where it is plainly warranted by the evidence in the case under the law, and no other verdict could have been found without misconduct by the jury.</p>

<p>i. CIRCUMSTANTIAL EVIDENCE — FRAUDULENT ASSIGNMENT— Fraudulent Intent.</p> <p>In showing the fraud necessary to impeach a conveyance, the fraudulent intent of the parties may be shown by the circumstances attending the transaction. Circumstantial evidence is not only sufficient, but is often the only evidence that can be adduced.</p> <p>2. Conflicting Evidence — Reversal.</p> <p>Where the decree complained of is based upon depositions which are conflicting and contradictory in their character, so that it is difficult to determine on which side they preponderate, and hard to draw a proper conclusion therefrom, and different judges might reasonably disagree upon the facts proved, the appellate court will refuse to reverse the decree of the court below, although the testimony may be such that the appellate court might have rendered a different decree if it had acted upon the case in the first instance.</p> <p>3. Creditors’ Petition — Priorities of Creditors</p> <p>Creditors may come in by petition to a suit attacking a deed on the ground of fraud, and their priority will be determined by the date of filing their petition, unless they have other ground of priority.</p> <p>4. Fraudulent Assignment — Creditors—Priorities of Creditors.</p> <p>Where an assignment of personal property is made in fraud of creditors, they, or any of them, may, in, a court of equity, have the same set aside. The creditor who first files his bill obtains thereby a priority, and is entitled to be first paid from the proceeds of the sale of the property, if there are no valid prior liens.</p> <p>5.. CREDITORS’ Petition — Fraudulent Assignment — Equity Practice.</p> <p>A creditor may file his petition in a cause pending which has for its object the vacation of a fraudulent conveyance, and, upon proper allegations, be made a party to the suit, and the hill, exhibits, answers, depositions, orders and decrees, and all the proceedings in said cause, may, upon proper prayer, be read as part of his petition.</p>

<p>1. Husband and Wife — Married Women — Resulting- Teust.</p> <p>When a husband purchases property with, his wife’s money, -and takes the deed in his own name, a resulting trust is raised in her favor; unless it is shown that she intended the money as a gift or loan to her husband, the establishment of which fact devolves on the husband, or those claiming under him.</p> <p>2. Husband ash aTfu — Rift - Laxare of Time.</p> <p>Mere lapse of time is not sufficient to establish a gift on her’ part, in so far as his collateral heirs are concerned, if he has indulged her in the belief of ownership, and allowed her to improve the property with her separate estate.</p>

<p>1. Construction of Will — Charge on Land.</p> <p>A will gives several pecuniary legacies, and tben gives a sum of money to three children, and then gives “the residue of my estate, real and personal,” to a brother and three sisters, and appoints that brpther its executor. Such will creates a charge on the land for the legacy to those children.</p> <p>2. Construction of Will — Residu ary Legatee.</p> <p>Where it is manifest that it was the design of a testator that ■legacies should be paid at ¡all events, the implication is that the residuary devisee or legatee shall have only the remainder after satisfaction of the previous dispositions.</p> <p>3,Construction of Will — .Enforcement of Charge on Land.</p> <p>A will charges with ia legacy land devised to a person, and he conveys it to a third person, who retains in his hands of the purchase money a sum to pay the legacy, and promises his grantor to pay it. Such grantor may maintain a bill in equity against his grantee, mailing the legatees parties, to compel the payment of such fund on the legacy, and to enforce the charge on the land.</p> <p>4.AMended Bill.</p> <p>An amended bill must not introduce another and different cause of suit from that of the original bill. But an amended bill is no departure from the original if it tend to promote a fair hearing of the matter of controversy on which the suit was originally really based, provided it’do not introduce a new substantive cause of suit different from that stated, and different from that intended to be stated in the original bill. An amended bill can not be allowed containing statements inconsistent with the nature of the original bill or changing the cause of suit. By it allegations may be changed or modified, and others added, provided the ’dentity of the cause of suit be preserved.</p>

<p>i. Co-Sureties — Contributions.</p> <p>Between co-sureties there should be proportionate equality of burden. One who has been'compelled to pay tha whple, ithe principal being insolvent, has a right in equity to compel his co-surety to pay his equitably equal part.</p> <p>2. Co-Sureties — Subrogation.</p> <p>To this end he has a right to he subrogated to. all the rights and remedies of the creditor, but not to the injury of any one who, by any rule of strict law, or in equity and good conscience, stands on higher ground, or for any reason has a better right. Such a one will not be displaced or his right disturbed. This is the essence of the doctrine of subrogation.</p> <p>3. FRAUDULENT CONVEYANCE — SECRET TRUST — Co-SURETY.</p> <p>A case in which a conveyance was set aside as made on a secret. trust in fraud of the grantors creditors, and the land conveyed subjected to 'the lien of a judgment in favor by subrogation of a co-surety, who had been cpmpel-led to pay the whole, the principal debtor being insolvent.</p>

<p>School Lands — Paíities—Appeal.</p> <p>The commissioner of School lands, is neither a necessary nor proper party to a chancery suit brought in the name of the State-of West Virginia, under section 6, chapter 24, Acts 1893, and therefore he is not entitled to appeal from the decrees, of the Circuit Court in such suit.</p>

<p>1. Tax Sale — Sheriff - (jollectojr.</p> <p>Section 9 of chapter 31 of the Code reads as follows: “No sheriff, deputy sheriff, collector or other officer who shall return any real estate as delinquent for the nonpayment of the taxes thereon, or who shall receive a list thereof under the provisions of the fourth section of this chapter, or who shall sell by himself, his-deputy or agent, or who shall be the deputy of any officer mailing such sale, shall directly or indirectly purchase any real estate sp sold, or be in any way directly or indirectly interested with any other person in such purchase. Every person violating this section shall forfeit one hundred dollars for each offense, and the sale shall be absolutely void, and the title to the real estate sold shall remain in the person in whose name the same is sold.” Held, such fact making void such sale may be shown by any natural, common-sense implication fairly arising on the record according to the principles of evidence and ordinary means and methods of proof.</p> <p>2. Tax Bale — Affidavit.</p> <p>Where a sheriff who sells land for nonpayment of taxes under chapter 31 of the Oode, appends to the list'of sales not the affidavit-required by law according to the form prescribed by section 13 of chapter 31, but, instead of saying in such affidavit, “I am not now, nor have I at any time been, directly or indirectly interested in the purchase of any of said real estate,” substitutes therefor the phrase, “I am not directly or indirectly interested in the purchase of any of said land,” and there being no other evidence of any kind on the point. Herd, such case is properly held to be void under section 9 of chapter 31.</p> <p>3. Tax Sale — Curative Act.</p> <p>It is not the .object or effect of the curative section 25 of chapter 31 to impair or in any way or to any degree affect section 9 of chapter 31, or to' prescribe that its violation may not be shown by implication.</p>

<p>1. Equity Practice — Lost Papers — Waiver.</p> <p>Where the original papers in a cause have been lost, they may be supplied as provided in section 14 of chapiter 130 of the Code; and in a, chancery cause, where the lost bill is thus supplied, and the defendant appears and files his answer thereto, he thereby waives any objection to the manner in which the bill was supplied, ,or to the authenticity of the copy thu® supplied.</p> <p>2. Equity Peactioe — Consent Decree — Cleeioal Eekoe.</p> <p>After the term at which a consent decree is entered it can not. be set aside, modified, or altered without the consent of the parties, except only to correct a clerical error, which is a mistake made by the c’erk in entering such consent decree, and it may be corrected by the ¡original draft of the decree furnished the clerk by the court; or it may be a miscalculation or mistake in some arithmetical operation, whereby an erroneous sum is entered in such consent decree, where all the parties are agreed on the basis of the calculation, and the mistake is simply an arithmetical mistake, or a simple blunder, in performing an arithmetical operation, all parties being agreed on the operation to be per-forméú.</p> <p>3. Equity Practice — Clericae Eeroe.</p> <p>In order that a decree may be corrected or reversed on motion under section 1 of chapter 134 of the Code, the error complained-of must be a clerical error, or-error in fact for which, a judgment or decree may bei reversed or corrected on motion or writ of error coram nobis.</p> <p>4. Equity Peactioe — Commissioner's .Report.</p> <p>When questions purely of fact are referred to a commissioner, to be reported upon, 'the findings of the commiss’k ner, while not as conclusive as the verdict of a jury, will be; giver, great weight, and should be sustained unless it plainly appears that they are not warranted by the evidence. This rule operates with peculiar force in an appellate court where the findings, of the commissioner have been approved and sustained by the decree of the inferior court.</p> <p>5. Equity Peactioe — Exceptions—Commissioner’s Report.</p> <p>Generally, exceptions to the report of master commissioners. partake of the nature of special demurrers, and, if the report is erroneous, ithe party complaining- ¡of the report or excepting thereto must point out the errors -in his exceptions with reasonable certainty, so as to direct the mind of the court to them. Vfhen he dpes iso, the parts not excepted to are admitted to be correct, not only as regards the principles, but also as relates to the evidence, on which they are founded.</p> <p>7. Equity Practice — Consent Decree — Clerical Ebeob.</p> <p>A decree or order made by consent can not be set aside1 either by rehearing or appeal or by bill of review, unless by clerical error anything has been inserted in the order as by consent, to which the party had not consented, in which case a bill of review might lie.</p>

<p>cited 7 Wait’s Act. & Def. 580, 581; 90 IT. S. 580.</p> <p>cited 3 Har, & McI-I. 85; 4 Min. Iñst. Pt. 1, p. 611; 7 Johns. Oh. 7; 5 Laws E. & E. p. 4181; 34 Ver. 530; 38 N. H. 191; 1 Wash. 20; 4 Gall 402; 36 Ill. 18; 07 Ala. 310; 92 Ill. 604; 21 N. Y. 306.</p>

<p>ScHoon BoaRD — Mandamus—Levy.</p> <p>A school board can not be compelled, by mandamus, to make a special levy for tbe payment of illegal orders, or other evidence of debt issued by it contrary to 'section 8, art. X, of .the constitution, and tbe laws enacted in pursuance thereof.</p>

<p>cited Anderson’s Law Dictionary, Title: “Seduction’’; 23 A. Va. 40-57; 29 Gratt 255; 31 Gratt. 855; Greenleaf on Evidence, Vol. 1, § 577; Anderson’s Law Dictionary, word “Handwriting”; Rice on Evidence, Yol. 1, page 340.</p>

<p>1. Partnership — Evidence.</p> <p>Stronger evidence of the existence of a partnership is required between partners than by third persons.</p> <p>% Partnership — Burden op Proop.</p> <p>Under a bill for settlement of partnership account, the burden of .proof is on the plaintiff; and if he can not furnish sufficient evidence to establish a partnership, and also to enable 'the commissioner to state a partnership account, his suit necessarily fails.</p> <p>3. Accounting.</p> <p>A court will not undertake to adjust the rights of parties without satisfactory means of ascertaining -what their rights are, and when an account can not he safely stated, and the true balance between the parties ascertained.</p> <p>4. Deposition.</p> <p>A deposition of a party read on the hearing in the Circuit Court can not he ignored or suppressed from the hearing of an appeal in 'this Count on the ground that since the decision in the Circuit Court the adverse party has died.</p>

<p>1. CONSTITUTIONAL Law — Road Surveyor</p> <p>That part of section. 2, article IX, of the Constitution of the-State, which provides that surveyors of roads shall be appointed 'by the county court, is mandatory, and provides the only mode-for filling that office.</p> <p>2. Constitutional Law — Road Rtjuvryor.</p> <p>That part of paragraph 3 of section 56a of chapter 43 of the Code of 1891 which enacts that the surveyor of roads for each road precinct shall be elected by the people is unconstitutional and void.</p>

<p>1. Bond — Assignment—Deed op Trust.</p> <p>The assignment of a bond or note secured by deed of trust carries with it, as an incident of such assignment, the benefit of the lien of the deed of trust, unless excluded expressly or by fair and reasonable implication.</p> <p>2. BOND — Assignment—Deed of Trust— Partial Payment.</p> <p>A credit properly indorsed on such bond of an unconditional payment made by the trust debtor, and so entered at his instance, extinguishes the debt and lién to that extent; but it may be erased by the express agreement of the creditor, the debtor, and the party to whom the bond is then assigned; but the question whether the benefit of the deed of trust also passes thereby, the assignment being silent on the subject, is open to independent proof.</p> <p>3. Bond — Liability of Assignor.</p> <p>In the absence of an express agreement to the contrary, the assignment of a bond or noil-negotiable note imports a guarantee that the assignee shall receive the full amount of the bond or note assigned, if he fail to collect the same after the exercise of due diligence.</p> <p>4. Bond — Liability of Assignor.</p> <p>But if the amount .paid for the bond is shown, that, with its interest, is the true measure of the recovery.</p> <p>5. Bond — Liability of Assignor.</p> <p>And lie can not recover merely on default of the debtor, but only after legal recourse against him has been exhausted, unless it appears that before the bond fell due the debtor became insolvent, or from some cause a suit against him would have been unavailing.</p> <p>6. Trust Fund — Trustee—Payment.</p> <p>Where a trustee pays) a trust fund 'to one who receives it knowing he is not entitled, the true beneficiary may bring his suit in equity against both; but the decree should be against the one improperly receiving it as the principal debtor, and against the trustee, treated as his surety, to make good any deficiency.</p>

UA report of a commissioner unless excepted to will be presumed by the court as admitted to be correct, not only, as to the. ■-principles of the account, but as to the evidence also.” — 21 W. Va. 262; 22 W. Va. 159; 24 W. Va. 524. e‘A party complaining of a commissioner'1 s report must point out the errors of which he complains by exception thereto so as to direct the mind of the court to it, and when he does so the parts not excepted to are presumed to be correct,” “both as…

<p>cited 23 G-ratt. 674; 11 W. Va. 399,412; C W.Va. 417. .</p> <p>cited 11 W. Va. 411; 2 Munf. 242; 1 Munf. 150; 3 Munf. 198; 4 Minor, part 2/1235; Code, e. 87, s. 6; 4 Minor, part 2; top pages 1374-1376; 3 Wait’s Actions and Defenses, 263; 9 Bush (Ky.) 19; 57 Pa. St. 46; 4 Minor, part 2, top page 1377; 3 Wait, 262; 2 Worner 706-711.</p>

<p>i. Evidence — Statements op Decedent.</p> <p>When a transfer of property bas been made, a declaration by the transferrer that he is still the owner of the property, made after such transfer, is not admissible -against the transferee.</p> <p>2. Evidence — Statements of Decedent.</p> <p>Declarations of a deceased person, claiming ownership of specific property, are not competent evidence in favor of his administrators, or others claiming title under 'him, whether such declarations of ownership were made before or after the title of the adverse claimant commenced. Masters v. Varner's JSx’rs, 5 Gratt. 168.</p> <p>3. Evidence, — Competent Witnesses.</p> <p>A person interested may give evidence against his own interest, both at common law and under section twenty three of chapter one hundred and thirty of the Code.</p> <p>4. Evidence — Competent Witnesses.</p> <p>The -purpose of section twenty three of chapter one hundred and' thirty of the Code, was to enlarge the competency of witnesses. It does not per se render any incompetent who are competent at common law. The exception therein does not create incompetency, but leaves the cases specified in it just as they were at common law.</p> <p>5.Evidence — Competent Witnesses.</p> <p>Children of a decedent, who are his distributees, are competent witnesses to prove a transfer by their father of personal estate in favor of the transferee.</p> <p>6.Evidence — Competent Witnesses.</p> <p>By common law a person is a competent witness in a case if the proceeding can not be used as evidence for him, though he may be interested in the question in issue, and may entertain wishes on the subject, and may even have occasion to contest the same question in his own case in a future suit. This rule has not been changed by' section twenty three of chapter one hundred and thirty of tihe Code o-f 1891, as to the competency o-f a person to testify against the representatives of a deceased person in relation to a transaction had personally by the witness with the deceased person.</p>

<p>Waiver oe Breach oe CoNtract — Implied AsseNt.</p> <p>Where goods are shipped by the seller to one who had given an order for them, but they are shipped so late that the buyer is not bound under the contract to accept them, and he writes to the seller that it is too late to accept them, and that he will be compelled to return them, and the seller replies hy mail, recognizing the buyer’s right to reject and return the goods, but asking him to accept them, and saying if he will do so, that he will give the buyer an extra credit on the same for thirty days, and the buyer does not in any way reply to such offer within a reasonable time, and does not reshipi nor in any way attempt to return the goods, to the seller, the buyer will be presumed to have assented to the seller’s offer, and to have accepted the goods, and will be liable, therefor as purchaser.</p>

<p>1. Master and Servant — Ordinary Hazab.d.</p> <p>When a servant enters into the employment off a master, he assumes all the ordinary hazards incident to the employment, whether the employment be dangerous or otherwise.</p> <p>2. Master and Servant — Negligence—Employment.</p> <p>The test of liability is the negligence of the master, not the danger of the employment, though the danger of the employment may determine the ordinary care required in the case.</p> <p>3. Master and Servant — Negligence.</p> <p>The mere fact of injury received raises no presumption of negligence on the part of the master.</p> <p>4. Master and Servant — Contributory Negligence.</p> <p>When a servant willfully encounters dangers which are known to him, the master is not responsible for an injury occasioned thereby.</p> <p>5. Master and Servant — Diligence and Care.</p> <p>A servant having knowledge of danger about him, must use diligence and care in protecting himself from harm.</p> <p><3. Master and Servant — Patent Bisks.</p> <p>An employer does not impliedly guarantee the absolute safety of His employes. In accepting an employment, the latter is assumed to have notice of all patent risks incidental thereto, or of which he is informed, or of which it is his duty to inform himself, and he is further assumed to undertake to run such risks.</p>

<p>1. Wipe’s Sepaeate Estate — -Maebied Woman — Peesonad Judgment — Jueisdiction.</p> <p>By reason of Chapter three, Acts 1893, a court of law has jurisdiction to entertain an action and. render personal judgment against a married woman upon a contract made during coverture, binding her separate estate.</p> <p>2. Wife’s Sepaeate Estate — Maebied Woman — Bond — SURETY.</p> <p>■ "A bond executed by a married woman as surety for a debt of her husband is valid to. bind her separate estate.</p> <p>3. -Wife’s Sepaeate Estate — Maebied Woman — Conteact. A contract of a married woman, made since the enactment of chapter 3, Acts 1893, such as hinds her separate estate, may be enforced against her separate estate, whether owned by her at the time of the contract or afterwards acquired, the same as if she were a jeme sole.</p> <p>4. Wife’s Sep abate Estate — Judgment—contr act.</p> <p>A judgment on such contract under said act binds as a lien the eorpus or entire body of her estate in realty owned by a married woman. *</p> <p>■6. Valuable Consideration — Forbearance to Sue.</p> <p>Forbearance to sue being valuable consideration, if a creditor take from his debtor and a surety a note giving further time for payment, that is a valid consideration to bind the surety.</p> <p>■6 Valuable Considebation — “Fob Value Received.”</p> <p>The words, “for value received,” in a note, prima faeie establish a valuable consideration, where it becomes necessary to prove such consideration.</p> <p>7. OBLIGATION Under Seal — Failure of ConsideratioN.</p> <p>An obligation under seal imports valuable consideration, requiring no proof of the consideration, and neither at common law nor under section five, chapter one hundred and twenty six of the Oode can want of consideration be shown in defense of an action on it. But, a® to failure of consideration, that may, under that section be shown, though not at common-law;. There is a difference between want and failure of consideration in such case. ■ ¡</p> <p>5. Married Woman- Want of Consideration — Obligation Under Seal.</p> <p>A married woman may, 'in an action at law or in equity, plead want of consideration against a sealed obligation given by her during coverture.</p> <p>•S. Obligation Under Seal — Merger.</p> <p>Taking an obligation under seal for a simple contract debt merges it in the obligation, and thus extinguishes it, as the taking of a security of higher dignity extinguishes inferior securities for the same debt.</p>

<p>1. Lease — Implied Covenant.</p> <p>Where a party in a written lease describes the property as “the premises lmotwn as the ‘Bedford Salt Furnace Property,’ together with all the appurtenances thereto belonging, including sis salt wells, tools and fixtures of the same,” there is no implied covenant on the part of the lessor that there are on said premises six salt wells of any particular productive capacity, or suitable for the purposes for which they are leased.</p> <p>3. Lease — Recitals.</p> <p>The recitals contained in said lease as to the number of salt wells included in the.premises, after the lease has been accepted and acted on for more than twto years by the lessee, with ample opportunity of knowing, not only the contents of the lease, but the character and quality of the property leased, must be regarded as conclusive of the fact between the ‘parties to said lease.</p> <p>3. Lease — Implied Warranty.</p> <p>The words “including, six salt wells,” contained in said lease, create no implied warranty ithalt there were six salt wells on said premises of any particular quality or fitness for manufacturing salt.</p> <p>4. Lease — Covenant to Keep in Repaib — Unavoidable Accidents.</p> <p>Where a written lease of property provides that 'the lessee shall keep the same in repair except as to unavoidable accidents and natural wear and tear, the law will not imply a contract on the park of the lessor to repair damages caused by unavoidable accidents.</p>

<p>Incorporation oe Municipalities — Constitutional Law.</p> <p>Chapter 47 of the Code, in relation to- tihe incorporation of cities, towns, and villages, in so far as it0 confers on the circuit court functions in their nature judicial and administrative, although in furtherance of the po-wer of the legislative department of the state government, is constitutional and valid.</p>

<p>CORPORATIONS — SERVICE OP PROCESS.</p> <p>Process emanating, from, the Circuit Court against a corporation may be served upon any person appointed pursuant to law to accept service for it; but such service must -be in the county in which such person resides, and the return must show this, and state on whom and when the service was, otherwise the service shall not be valid.</p>

<p>cited 16 W. Va. 282; 25 W. Va. 808; 23 W. Va. 457; 151 Mass. 46; 108 N. Y. 407; 105 N. Y. 246; 101 N. Y. 98 ; 63 Iowa 680; 63 Io.wa 302; 71 Mo. 575; 70 Mo. 145; 22 N. J. L. 243; 22 Veb 343; 62 Tex. 593; 19 S. E. Rep. 401; 26 W. Va. 787; 37 W. Va. 108; 4 W. Va. ISO; 23 W. Va. 14.</p> <p>cited 23 W. Va. 451; 1 Am. R. R. & Corp. Rep. 708 note; 45 Iowa 652; 23 N. H. 83; 107 Mass. 352; 112 Mass. 334; 19 S. E. Rep. 404; 27 W. Va, 308-9; 50 Ill. 241; 3 Sutli. on Darn. 403; 18 Minn. 265; 35 Ark. 622; 23 W. Va. 19; 4 Rand. 488; 20 Gratt. 344; 8 W. Va. 201; ■9 W. Va. 634.</p>

<p>1. Damages — Exemplary Damages.</p> <p>-. The common-law definition of the term “exemplary damages”is damages inflicted by way of punishment upon a wrongdoer as1 a warning to him and others to prevent a repetition or commission of similar wrongs.</p> <p>2. DAMAGES -EXEMPLARY DAMAGES.</p> <p>The term “exemplary damages,” in section twenty of chapter twenty nine, Acts of 1887, is used according to its common-law definition, and can not be otherwise construed without extrajudicial interference with a plain legislative enactment.</p> <p>3. Damages — Exemplary Damages.</p> <p>The first and second point of the syllabus of Pegram v. Stortz, 31 W. Va, 220 (9 S. E. Rep. 485), and the first point of the syllabus of Peek v. Thompson 31 W„ Ya. 459 (7 S. E. Rep. 447) in so far aS they hold that exemplary damages, in a proper case, can not be inflicted'by way of punishment in a civil suit upon a wrongdoer, are hereby disapproved and overruled.</p> <p>4. Damages — Exempary Damages — Torts.</p> <p>In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.</p>

<p>cited 2 Am. & Eng. Ency. Law, 672; 36 W. Ya. 729; 4 Am. & Eng. Ency. Law, 683, 684; Dest. Or. L. § 22a; 1 Bisli. Or. L. (7tli Ed.) §§ 370, 371; 3 G-r. Ev. (15th Ed.) § 4; 13 G-ratt. 763; 2 Am. & Eng. Ency. Law, 671-73; 2 East’s F C. 496-99; 62 Miss. 781; Bish. Stat. Or. §§ 277-79; Am. Dig. (1893) 355; 93 Mich. 46; 27 W. Va. 375; 2 Am.'& Eng. Ency. Law, 697.</p> <p>cited 2Ó W. Ya. 713, 743; 27 W. Va. 375.</p>

<p>cited 34 TV. Va, 05; I-Iutch. Car. (2d! Ed) § 580, p. 675; Id. § 38(U; 20 U. C. Q. B. 24, 27; 11 Lea (Tenn.) 98; 45 Iowa 69; 50 Iowa 79; 49 Mich. 184; 36 W. Va. 338.</p> <p>cited 36 W. Va. 318, and 39 TV. Va. 475.</p>

<p>1. Liquor License — Town Council.</p> <p>The act of February 24,1869, amending the charter of the towni of Ceredo, confers upon the council of that town the sole power to grant or not grant a state license for the sale of intoxicating liquors within the limits of said town.</p> <p>2. Liqttor License — Town Council — Constitutional Law.</p> <p>Such act is not repugnant to the constitution of the state (see-section forty six of article six, and section twenty four of article eight, of the state constitution), and such sole power to- grant such license or not is recognized by section eleven of chapter thirty two of the Code as vested in the municipal authorities of such town.</p>

<p>cited-33 W. Ya. 307; 36 W. Ya. 427 ; 37-Gratt. 892; 6 Law. R. R. & P. § 2776; Wash. Ease. § 31; 33 W. Va. 315; 29 Vt. 44; 19 Am. 6 Eng. Ency. Law, p. 9; Wash. Ease. p. 114; 23 Iowa 511; 57 Am. Dec. 297; Woolr. Ways 19, 188; 3 Kent. 442; Elliott’s Roads and Streets 139; 2 Min. Inst. p. 558; 1 Lorn. Dig. 783;. 2 Min. Inst. p. 560; 74 Am. Dec. 629; 12 Id. 584; 44 Id. 41; 109' Ind. 586; 69 Wis. 613; 27 S. Car. 549; 13 Atl. Rep. 81; 13 Gray (Mass.) 188; 100 N. Y. 455; 3 Nev. 361; 93 Am. Dec. 409; 24 N. W. 440; 57 Am. Dec. 294; 3 McCord (S. C.) 194; 10 Hisk (Tenn.) 329; 77 Ill. 570; 54 Ga. 233; 2 Min. Inst. pp. 19, 20; 4 Rand. 58; 3 Leigh 318; 3 Kent 441; Code, W. Ya., c. 104, s. 1;. 11 Am. Dec. 661, 663; W'asli. Ease. 66; 20 Am. Dec. 524, 525; 7 Id. 193, note;/Godd. Ease. p. 134; 36 W. Ya. 437; 18 W. Ya. 454; 5 N. Y. 9; 13 Am. Dec. 741, 745; 19 Am. & Eng. Ency. Law, pp. 19, 20; 38 Am. Dec.-61; 77 Ill. 570; 64 Am. Dec. 76;-49 Id. 99; 126 Mass. 445; 1 Barb. Cli. (N. Y.) 353; Wash. Ease. 259; 13 Am. Dec. 741; 94 Id. 260 ;< 38 Id. 61; 35 How. Pr. N. Y. 139; 126 Mass. 445; 22 N. Y. 217; 27 N. H. 448; 59 Am. Dec.-387; 7 C. & P. 761; 69 Cal. 199; 19 Am. & Eng. Ency. Law 97; 3 Taunt. 24; 85 Am. Dec. 671; 117 Ill. 643; 19 Am. & Eng. Ency. Law 106; 13 Am. Dec. 741; 42 Ind. 44; 5 Harr. (2d) 21; 1 Whar. Ev. § 264;.l Green. Ev. § 113; 1 Whar. Ev. § 203; 1 Green. Ev. § 109; 2 Mun. 468.</p> <p>cited 6 Rob. Pr. 804; 3" Kent. 419 (top page); 8 Gratt. (Í32; 1 Lomax Dig. 524; 2 Min. Inst. 20.</p>

<p>1. CRIMINAL Law — Preliminary Examination — Probable Cause.</p> <p>The waiver of a preliminary examinaton by a person charged with crime is prima facie evidence of probable cause.</p> <p>2. Criminal Law — Probable Cause— Preliminary Examination-Grand Jury.</p> <p>“The discharge toy a justice of the plaintiff who> has been arrested and brought before him for examination or the refusal of the grand jury to indict him is prima facie evidence of want of probable cause tout it is liable to toe rebutted by proof.” When the refusal of the grand; jury to indict is opposed to the refusal of the justice to discharge, one rehuts the other, so as to render neither prima facie evidence of the existence or want of probable cause; and, if the plaintiff manages in any way to have the evidence for his defense considered by the grand jury, their finding is tantamount to an acquittal by a petit jury, and is not prima facie evidence of the want of probable cause on the part of the prosecutor.</p>

<p>1. Evidence — Copy op Deed.</p> <p>An office copy of a deed improperly admitted to record is not competent evidence.</p> <p>2. Evidence — Ejectment—Possession—Former Recovery.</p> <p>Where an action of ejectment is brought by an adverse claimant against a tenant to recover possession of the premises, and judgment is rendered for such plaintiff against the tenant by default, and a writ of possession is executed by which the plaintiff is placed in actual possession, the possession is thereby changed, and the landlord is thereby actually turned out — in a second action of ejectment by plaintiffs, who derive title from the plaintiff in .the first suit, against such landlord, sued as defendant, the record of the recovery in the former suit is competent evidence on behalf of the plaintiffs in the latter suit as showing or tending to show that the defendant’s possession at that time was ended and changed hy the execution of such writ of possession.</p>

<p>CORPORATIONS — Estoppel—Payment op Stock Subscription.</p> <p>A party who takes part in the meeting of stockholders for the organization of a corporation under chapter fifty four of the Code, and votes therein as a stockholder for directors, and, when called upon by order of the directors, pays an assessment on his stock, can not deny the existence of the corporation when sued for his stock, and is liable therefor.</p>

In an action for damages the 'plaintiff can not manufacture a jurisdiction before a justice by splitting up his demand.— Const, of W. Ya. Art. VIII, s. 28; Code of W. Ya. c. 50, s. 8; 33 W. Ya. 88; Sedg. on Ham. (8 Ed.) vol. 1, § 84; 33 W. Ya. 289; 2 Ya. Cas. 42; 77 Ya. 225; 4 Miner’s Inst., part 1, 266; 15 Am. Dec. 632; Hawes on Jur. of Cts. § 10.

<p>Judgment by Confession — Assignment—Insolvent DebtoR.</p> <p>A judgment confessed by an insolvent debtor, together with the-execution issued thereon, is, in effect, an assignment of the debt- or’s property to the extent of the lien or levy of such execution, is void as a preference under section two of chapter seventy four of the- Code, and inures to the benefit of all the insolvent’s creditors.</p>

<p>1. Railroad Companies — Live Stock — Negligence.</p> <p>In order to charge a railroad company with damages for killing stock straying upon its track, negligence on the part of the company must appear, and the burden of showing it rests upon the plaintiff.</p> <p>2. Railkoad Companies — Cattle Guards.</p> <p>The provision of section .fourteen of chapter forty two of the Code, requiring railroad companies to construct and maintain cat-tie guards upon land condemned, is for the benefit of the landowner; and therefore the mere omission to do so will not entitle another party, whose stock is injured while straying upon the railroad track, by trains, to recover damages, though, but for the want of it, the stock would not have been where it was injured.</p>

<p>1. Bill of Review.</p> <p>A person is not entitled to file a bill of review-who is not a party to the original suit, and whose rights are in no manner affected hy the decree sought to be reviewed.</p> <p>2. Bill of Review — Waiver.</p> <p>A joint owner of property, who, being a party to a suit, allows, his undivided interest in such property to be sold to satisfy judg- ■ ment liens thereon, can not file a bill of review to set aside the decrees in such suit, for the sole purpose of having the property, not being susceptible of partition, sold as a whole, for by his negligence he has waived whatever rights he may have had in this respect.</p>

<p>1. Deed— Seal</p> <p>A paper purporting to be a deed or gift of real estate, iwbicb bas a scroll annexed to the grantor’s signature, with the word “seal” written in it, but which fails to recognize said scroll as a seal in the body of the instrument, but which paper has been duly acknowledged for record by the grantor, held to be a deed.</p> <p>2. Deed — Husband and Wife.</p> <p>A deed from a husband to his wife for real estate, while inoperative and void at law, is nevertheless valid in equity, and will confer upon the wife a good equitable estate, which in all cases will be enforced against the husband by a court of equity.</p>

<p>cited 33 W. Ya. 476, 480, 481, 482, 483; 19 G-ratt 438; 78 Va. 215; 15 W. Ya. 732, 766; 16 W. Ya. 32.</p> <p>John R. Dunn, cited 2 Lomax Ex’or, side p. 152; 33 W. Va. 476; 67 Md. 498; 16 Pa. St. 275; 1 P. Wm. 779; 2 Ves. 194; Rop. Leg. 456; 18 W. Va. 441; 16 W. Va. 32. •</p> <p>cited 33 W. Va. 476; 10 W. Va. 130; 78 Va. 223; 19 Gratt. 473; 15 W. Va. 767; Code, p. 123; 21 W. Va. 777; 33 W. Va. 430; 12 W. Va. 394.</p>

<p>1. Assignment of Bond — Without Recourse — False RepreSENTATION.</p> <p>The plaintiff 'took from the defendant a written assignment without recourse of a bond on M., and sued to recover his monfey back on the ground of! fraudulent representation. TO avoid such contract, the representation must be of a material fact, and be false within the knowledge of defendant, and be made with intent on his part that plaintiff should act upon it, which representation t'he plaintiff, in ignorance of its falsity, relies upon, and is thereby misled to' his injury and damage.</p> <p>2. Assignment op Bond — Without Recouese — Paeol Evidence.</p> <p>Such written assignment without recourse can not be changed, in its terms by parol evidence.</p> <p>3. Assignment op Bond — Without Recouese.</p> <p>By such contract the assignee takes upon himself all risks of collecting the money, provided the instrument assigned was in fact what it seemed to he —a genuine, valid, subsisting debt.</p> <p>4. Assumpsit — Express Warranty.</p> <p>General indebitatus assumpsit does not lie for tbe breach of an express contract of warranty.</p>

<p>l. Pleading — Special Plea — Unoeetainty.</p> <p>In an action, of trespass on the case -brought for the recovery' of damages for mining and removing coal, the defendants tendered a special plea, which averred “that more than three years before-the commencement of the suit, they entered into and were in peaceable possession of the close and land in the plaintiff’s declaration and amended declaration, and each count thereof, mentioned and described, claiming title under a lease of the same for the purpose of digging and operating for coal and oil and other minerals, and that they continuously remained in such possession for the space of more than three years next before the commencement of this action, and have dugand-bored,and in-good faith expended money in such digging, boring, and operating, and this they are ready to verify.” On objection, this plea is had for want of certainty, and for this reason- that it does not state under whom the lease mentioned is claimed.</p> <p>■2. Evidence — Trial—Revehsal.</p> <p>Whether plaintiff shall be allowed to give further evidence after defendant’s evidence is closed is within the discretion of the trial court; and its exercise will rarely, if ever, be the ground of reversal by an appellate court. -Clearly, he is entitled to give evidence to rebut that of'the-'defendant.</p> <p>,-S. Instructions — Deed—Evidence.</p> <p>It is error for a court to instruct a, jury as to the effect of a deed which is not in evidence before them.</p>

<p>1. Assumpsit — Special Count — Assignee op Fraudulent Mortgage.</p> <p>A party buys and takes a conveyance of certain real estate from a second party, wbo is insolvent. Tbe real estate is subject to three mortgages and a judgment lien. The first party, for the purpose of making a proper application of the purchase money and m order to control and thereby clear off the charges and liens, having made known to a third party,'one of the mortgagees, his object, takes from him. a separate ¡written assignment of one of the mortgages and the negotiable note payable to his order, not yet due, thereby secured, which was not endorsed; and the first party was ignorant of the facts, but was induced by the false and fraudulent representations of the third party, the mortgagee, who knew that the mortgage was fraudulent and voidable, to believe, and did believe) that the mortgage of two thousand dollars was a valid and subsisting charge to the extent of one thousand, two hundred and three dollars and eighty two cents, 'which sum he paid the mortgagee for the assignment, ¡when in fact, and to the knowledge of the third .party, the mortgage was wholly without consideration, and had been given and taken with the intent to hinder, delay and defraud the creditors of the mortgagor, and was so held in a suit ,to foreclose, of which the assignor had notice, and was therefore wholly worthless to the assignee. _HeM,such assignee is entitled to recover back the sum with its interest, paid for the assignment. Such recovery may be had on a special count in general indebitatus assumpsit setting forth specially the facts creating the liability, and averred as the consideration of the promise.</p> <p>2. Assumpsit — Money Had and Received.</p> <p>It may also be,recovered ¡back on the common count in general indebitatus assumpsit for money had and received, accompanied with a sufficient bill of particulars.</p> <p>3. Assumpsit — Bona Fide Assignee — Fraudulent Mortgage.</p> <p>In such case it is not a good defense for the assignor to aver and prove that if the assignee, the plaintiff in the suit to foreclose, had set up, by way of confession and avoidance, the fact that he was a bona fide assignee for value, without notice of the fraud rendering void the mortgage as against the creditors. of the mortgagor, it "would have been held good in his hands and allowed. See Holmes v. Gardner 33 N. E. Rep. 644 (50 Ohio St. 167).</p> <p>4. Assumpsit — Express Warranty.</p> <p>General indebitatus assumpsit does not lie for the breach of an express contract of warranty.</p>

<p>1. Negotiable Note — Accommodation Paper — Burden of PROOF.</p> <p>Where it is shown in evidence that a certain negotiable prom-isory note was made and delivered to the payee at his instance, and for his accommodation for a specific purpose, and that such payee without the knowledge and consent of the maker, used such note for a different purpose, the burden is on the holder of such note to show that he received it in the ordinary course of business, before maturity, for value, without notice of its wrongful misuse by the payee, before he can recover from the maker.</p> <p>2. Negotiable Note — Valuable Consideration — Pre-exist ing Debt.</p> <p>A pre-existing debt is not such valuable consideration as will protect the holder of a negotiable note wrongfully pledged as collateral security hy the payee.</p> <p>3. Witness — M aterial Pact — Conclusive Presumption.</p> <p>Where the burden is on a party to a suit to prove a material fact in issue, the failure, without excuse, to produce au important and necessary witness to such fact, raises the conclusive presumption that such witness’ testimony, if introduced, would be adverse to the pretensions of such party.</p>

<p>1. Nuisance — Negligence.</p> <p>A mill manufacturing powder and other explosives, and storing the same on the premises, situate on the bank of the Ohio river and near two railroads and a public road, is a public nuisance, and any one injured in property by explosion of powder stored there may recover damages without proof of negligence in its operation.</p> <p>2. Evidence — Unnecessabv Allegations — Subplttsage</p> <p>Allegations of facts not necessary to maintain an action or defense are immaterial and surplusage, and need not be proven.</p> <p>3. Evidence — Authentication op Papebs.</p> <p>Where a judge is ex officio clerk of a court, then both certificates specified in section 19, chapter 130, Code, are not required, his certificates as judge being sufficient.</p> <p>4. Evidence — Judicial Notice — Law op Foreign State.</p> <p>Under section 4, chapter 13, Code, courts take judicial notice, without proof, of the law of another state, and in so doing may consult any hook purporting t’o contain, state, or explain the same, and consider any testimony, information or argument offered on the subject.</p> <p>5. Evidence — Foreign Deed — Certipication.</p> <p>Original deeds made outside of this state, and so certified as to warrant recordation in this state, are admissible in evidence here.</p> <p>■6. Possession — Evidence.</p> <p>Actual possession being an element of complete legal title to real estate is prima jacie evidence of such title in the posses- or. One in such position may maintain' trespass or trespass on the case for damage thereto, without further proof of his title.</p> <p>7. Possession — Trespass.</p> <p>Either actual or constructive possession, will maintain trespass for damage to realty.</p> <p>.8. Evidence — Estoppel—Answer.</p> <p>An answer in chancery in another suit is admissible as evidence of an admission therein in behalf of one though not a party to the. suit in which it was filed, though it would not be admissible as an estoppel under the prinicple of res judicata.</p>

<p>1. Spboific Performance — Innocent Purchaser.</p> <p>Where a vendor by executory contract, has conveyed the legal title tp a subsequent purchaser lor value, -without notice, there can not be specific performance of the executory contract in favor of the first purchaser; but, if the second purchaser had notice, there can be, the conveyance to him being void as to the first purchaser, and he can be compelled to convey the land, without warranty, to the first purchaser. Proper decree in such case.</p> <p>-.2. Specific Performance — Outstanding Incumbrance — General Warranty.</p> <p>Where the land is subject to a life maintenance in favor of a third party, that is no impediment to a specific performance of a contract of sale with general warranty, if the purchaser will accept a conveyance ¡with such warranty, and rely upon it for indemnity against such incumbrance.</p> <p>3. Charge on Land.</p> <p>A reservation or change upon land, in a conveyance, for maintenance for life, is valid, though no amount be fixed.</p> <p>4. Estoppel in Pais — Charge on Land.</p> <p>One owning or having any interest in -or charge upon land, knowing that another is about to purchase it, who declares to such other person, that he has no interest in the land,, and that the one proposing to sell has the absolute right to the land, can not set up any ownership, interest, or charge, then existing, hostile to the ¡right acquired by such purchaser.</p> <p>5. Estoppel in Pais.</p> <p>Where one, by words or conduct, intentionally causes another to believe in the existence of a certain state of things, or such words or conduct are of such nature as he has reason to believe will cause him to so believe, and such other, not knowing to the contrary, acts thereon, the former will be estopped fromi averring or claiming under a different state of things, then existing and known to- him, to the prejudice of the other party.</p> <p>6. SUBROGATION.</p> <p>Subrogation, being merely the creature of equity, and not of contractual nature, will be administered only in harmony with its fixed rules, in furtherance of justice.</p> <p>7. Subrogation.</p> <p>Subrogation is not given to one who officiously, as a stranger, pays a debt of another.</p> <p>8. Subrogation — Fraud.</p> <p>One guilty of fraud in the transaction in which, he asks subro-gation, as one who asks it must come before the court with clean blanda, can not have subrogation. Therefore, a second purchaser, who, with notice of the right of a first purchaser, pays' 'off a lien, on the land, can not ask to be substituted to it.</p>

<p>1. Husband and Wife — Married Woman — Separate Estate.</p> <p>Married woman’s separate property. Points one, two, three, tour, five and ten of the syllabus, in the case of Trapnell v. Gonklyn (37 W. Va. 242) and point two of the syllabus in case of Stewart v. Stout, 38 W. Va. 478, approved.</p> <p>2. Husband and Wipe — Separate Estate — Husband’s Creditors.</p> <p>A court of equity will not at the instance of the husband’s creditors attempt to charge a wife’s separate property with alleged improvements put thereon by the skill and labor of the husband, unless the evidence establishes the existence, and at least the approximate amount, of such improvements.</p>

<p>1. RailRoad COMPANIES — Fellow Servants.</p> <p>The first, second and third points of the syllabus, in the casa of Haney v. Railway Co. 38 W. Va. 570, approved.</p> <p>2. Railroad Companies — Fellow Servants — Telegraph Operator.</p> <p>T’he telegraph operator in charge of a signal station, who has control, by means/ of signal orders, of the running of trains over a block! section of a. railroad, is not the fellow servant of a brakeman injured on such block section 'by reason of such operator’s negligent management of the running of such trains.</p> <p>3. Railroad Companies — Contributory Negligence — Burden op Proof.</p> <p>The syllabus in,the case of Comer v. Mining Co. 34 W. Va. 534, approved.</p>

<p>1. Estoppel in Pais — Injunction..</p> <p>Where a party who claims to be the owner of a tract of land has notice of the fact that a railroad company is excavating a tunnel through, a mountain located on said land, under claim of title thereto, remains silent as to his ownership of the land, with full Knowledge of- his rights, and assists in the construction of said tunnel from its commencement until its'completion, and the railroad is constructed through the same, without asserting any claim! to the land through which the tunnel passes, and then institutes an action for damages against the railroad company for taking his land, he iwill he estopped from recovering in said action, and may he enjoined from further prosecuting such action for damages.</p> <p>2. Estoppel in Pais —Equitable Estoppel — Equity JURISDICTION.</p> <p>Such equitable estoppel may be asserted in a court of equity.</p> <p>3. Estoppel in jPais — Equitbale Estoppel.</p> <p>When one of two innocent persons — that is, persons each guiltless of an intentional moral wrong — must suffer a loss, it must be borne byt that one of them, who hy his conduct, acts, or omissions has rendered the injury possible.</p> <p>4. Estoppel in Pais — Fraud.</p> <p>A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances when he should do so, either designedly or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed afterwards to come in and assert his right to the detriment of the person so misled. That would be a fraud.</p>

<p>1. ■’ Pleading — Judgment-Declaration.</p> <p>A judgment on a verdict for the plaintiff virtually overrules all demurrers to the declaration and each count thereof.</p> <p>2. Injunction — Bond—D amages — Declaration.</p> <p>Where the condition of an injunction bond in pursuance of the statute provides that the plaintiff in the injunction cause shall faithfully prosecute said injunction, and shall pay the amount of the judgment enjoined, and all such costs as may ibe awarded against the complainants, and all such damages as shall he incurred in the case the injunction be dissolved; in a suit upon said injunction bond to recover damages incurred by reason oí the suing out of said injunction, the declaration must aver that the plaintiff in the injunction, by reason of the dissolution thereof, has incurred and become liable to pay the plaintiff in the suit on said bomj some amount of damages.</p> <p>3. Injunction — Bond—Actions on Ronds.</p> <p>Where such bond is made payable to the state, suits may be prosecuted from time to time thereon for the benefit of the person injured by the breach of the condition thereof, until damages are recovered in the aggregate equal to the penalty of the bond.</p> <p>4. Injunction — Bond—Actions on Bonds — Relator.</p> <p>In such suit it' is incumbent on the relator to show title to the judgment enjoined before he would be entitled to recover damages on account of its collection® being restrained by the injunction.</p>

<p>cited 73 Ind. 284 Wood’s Law of Nuis., p. 76; 20 N. J. Eq. 530; 118 Pa. St. 402;; Am. & Eng. Ency. Law, vol. 16, 922; 3 Paige (N. Y.) 218; 34 W. Va. 804; 29 W. Va. 48.</p> <p>cited Code, c. 47, s. 28; Dill. Mun. Corp. 374-878; 2 Tuck. Comm. 303; 4 Min. Inst. 764; 61 Me. 503; 34 W. Ya. 804; 16 Am. & Eng. Enc. Law 928: Wood Nuis. § 809; 33 Conn. 118; 50 Md. 517; 57 Pa. St. 274; 29 W. Va. 48; Code, c. 110, s. 1; Id. c. 47, s. 28; 28 W. Ya. 227, 232; 13 W. Va. 358; 22 G-ratt. 454; Dill. Mun. Corp. (Ed. 1881) §§ 94, 95; L. K 4 OR. App. 388.</p>

<p>1. Grist Minn — Toll—Justice or the Peace.</p> <p>The five dollars’ forfeit prescribed by law (section 37, chapter 44, Code) to be paid by the proprietor of a grist-mill to his customer for ¡taking more toll than allowed ¡oy the statute may be recovered in a civil proceeding before a justice of the peace.</p> <p>2. Justice of the Peace - Jurisdiction — Writ of Prohibition</p> <p>Where such justice has jurisdiction of the subject-matter in controversy, and does not exceed his legitimate powers, a writ of prohibition should’ not be granted.</p>

<p>cited 37 W. Ya. 579; 37 W. Va. 115; 31 W. Va. 478 ; 35 W. Ya. 406; 34 W. Va. 465; 33 W. Va. 718,723; 16 W. Va. 326; 54 Am. Dec. 467; Code, c. 43, s. 53; Id., c. 43, s. 7.</p> <p>cited 16 W. Va. 307; 37 W. Va. 606; 31 W. Va. 386; 19 W. Va. 323; 35 W.' Va. 682; 127 Mass. 329; 131 Mass. 443; 97 Mass. 268, 272; 122 N. Y. 430; Whar. Neg. §§ 980; 996; Code, c. 47, s. 28; 32 W. Va. 55; 33 W. Va. 547; 31 W. Va. 842; 37 W. Va. Ill; 38 W. Va. 273 ; 35 W. Va. 389; 37 W. Va. 579; 99 N. Y. 654; 20 N. W. Eep. 668; 110 Mass. 131.</p>

<p>cited 3 Randolph Com. Paper 268, § 1240; 5 Mason (IT. S. Cir. Ct. Rpt.) 366; 17 Wis. 157; 48 Mo. 66; 3 Dana (Ky.) 126; 3 Mackey 351; 3 Humph. (Tenn.) 670; 34 N. Y. 128; 1 Parsons on Notes & Bills 514, 578; 28 Ver.'316; 6 Mass. 316; 7 East 385; 7 Pa. St. 178.</p> <p>Notice of protest must be personal, and not by mail, unless proven to have been received in due time, when the indorser lives in the same city or town where the note is payable. — 2 Daniel on Nego., Ins., 1005, 1038, 1039; 6 How. 248; 2 Peters 96; Story on Bills, § 312; 15 G-ratt. 501; 29 W. Va. 528; Parsons on Notes and Bills 511; 1 Am. L. Cases 390; 1 Ohio St. 266; 2 Rob. Pr. 190, 191,197; 7 Bush (Ky.) 93.</p> <p>Who are regarded as of the same place. — -102 Mass. 177; 4 Humph. 86; 5 Mete. 212; 2 Hill 587; 10 Johns. 490; 11 Johns. 231; 6 Mart. 506; 6 How (Miss.) 609; 10 Neb. 338; Mart, and Yerg. 183; Edwards on Bills 602; 8 W. & S. p. 138; 4 Wash. C. C. Rep. 470.</p>

In any action or suit founded upon contract, every averment setting forth the date and terms of the contract is an allegation of matter of essential description, and must be proven with a degree of strictness extending to literal precision.— Greenl. on Ev. vol. 1, part 2, chap. 2, §§ 56-58; 8 W. Va. 285 ; Idem, 556 ; 8 W. Va. 568.

<p>1. Agent — LieN fob Expenses — Transfer of Possession.</p> <p>An agent with unrestricted management of a mercantile, farming and general trading business, carried on in bis name, with the right to buy, sell'and exchange, has a lienl'on all the property accumulated in such, business, and in his, possession, for all advancements made, expenses and 'liabilities incurred, proper, necessary, or incident to such business, which is superior in right to any lien which may be created on such property iby the reputed owner thereof; and whilejhguin'av not, 'withouit-the -consent — of those interested, transfer or assign; such lien to, another, .vet, he nas tne right to| sell a sufficient amount of suioh property to satisfy such liabilities, or may transfer the possession thereof to, a trustee, tohei held by him until such liabilities are fully discfaarg-</p> <p>■2. Agent — Possession—Trustee.</p> <p>The possession of the trustee under such circumstances is the possession of the agent, and the lien is not released or waived.</p> <p>•3. Agent — Trustee.</p> <p>Such trustee, 'with the consent of the interested parties, may sell the property and extinguish the lien.</p> <p>4. Chancery COMMISSIONER’S Report — Exceptions.</p> <p>When a commissioner to; whom a 'cause is referred to settle large and intricate matters of account, containing many contested items, returns a report showing only an aggregation of items in accordance with his conclusions,'and the report is excepted to for this reason, and the 'Circuit Court overrules such exceptions and confirms the report; on appeal this Court will, reverse the decree of confirmation, and remand the cause, that a proper itemized statement of such accounts may be made.</p>

<p>cited 30 Ofratt. 292; 37 W. Va. 552.</p> <p>cited 37 W. Va. 675; 27 W. Va. 442; 35 W. Va. 719; 27 W. Va. 206; 22 W. Va. 356; 17 W. Va. 717; 38 W. Va. 248; 27 W. Va. 677; 27 W. Va. 16; 28 W. Ya. 774; 55 Am. Dec. 678; 48 Mich. 465; 64 Pa. St. 120; 19 Am. & Eng. Enc. Law p. 70, note; 5 Leigh 695, 712; 16 Am. & Eng. Enc. Law 790; 84 Am. Dec. 552; 62 Am. Dec. 847;. 65 Am. Dec. 283; 67 Am. Dec. 63, 74 and note; 25 Am. Dec. 215; 16 Am. & Eng. Enc. Law 837; 3 Story 364; 1 Story 172; Bump. Fraud. Gonv. 493-</p>

<p>1.MUNIOIPAL CORPORATION — FORFEITURE OP CHARTER,</p> <p>A forfeiture of'tbe charter of'a municipal corporation can not be enforced or taken- advantage of in any legal proceeding collaterally or incidentally. That forfeiture must be declared in a proper, direct way. The state only cam enforce suck forfeiture, as it alone kas tiha right to waive or enforce it.</p> <p>2.MUNICIPAL Corporations — Forpeiture op Charter.</p> <p>The forfeiture of charters of towns for tbe causes defined in Code, c. 47, s. 44, must be- governed '¡by tbe principles above stated. Quaere, can suck forfeiture be declared by any judicial proceeding?</p> <p>3.Municipal Corporations — Parties to Suits.</p> <p>A suit to' enjoin the collection of municipal taxes, on tbe ground that they were illegally imposed by reason of want of authority to impose them from forfeiture of the municipal charter, is not wrongly brought, from tbe mere fact that tbe town is sued in its corporate name. So bringing tbe suit does not admit its continued existence. 1 <</p>

<p>1. Pleading — DbmurbeR—Exhibits.</p> <p>In passing upon a demurrer to a bill with which, written documents are exhibited, as parts thereof, the court is not bound to accept as true and correct the allegations contained in the bill as to what such documents prove, or what is their effect in law, but may loot ten and go by the documents themselves.</p> <p>2. Mechanic’s Lien — Oath to Mechanic’s Account.</p> <p>Chapter 75 of the Code creates the mechanic’s lien in certain cases, on certain'conditions; and section Rof such chapter, among other things, provides that such account, to be effectually filed for; record as a lien, must be sworn to by thie person claiming the lien, or by some person on bis behalf. Such oath is an element essential to the creation of the lien, and, to he effectual, must be ■in writing, as .a part in some way, of the paper writing filed for record.</p> <p>3. Mechanic’s Lien — Authentication of Official Signature.</p> <p>If such affidavit he made before any officer of another state or country, such as the District of Columbia, it is not duly authenticated for record until it is subscribed by such officer, and there he annexed thereto the certificate of the clerk or other officer of ® court of record of such state or country, under an offidial seal, verifying the genuineness of the signature >of the first mentioned officer, and his authority to administer an oath. Section 31, chapter 130, of the Code. A case in which these rules are discussed and applied.</p>

<p>Pl.batjina — Declaration—Description op Premises —Trespass. 1,</p> <p>In the action of trespass to realty, or an action on the case in lieu thereof under the statute, the place where the acts complained .of were done is material and traversable, and tlhie allegations itbere-.of must in some ¡way, either by the name of the land or close, by some or all of its) abuttals, by naming a particular locality, or in some other way, designate or describe such /oous in quo with a reasonable degree of definiteness; otherwise the declaration will be bad on demurrer.</p> <p>■9. Guardian and Ward — Ward’s Estate.</p> <p>Not a guardian by nature, but only a guardian appointed, who has given bond as and when required by law, is entitled to the possession, care, and management of his ward's estate.</p> <p>3. Guardian and Ward — Infant.</p> <p>An infant who has no such guardian who has given bond may, for damage donieiitoi his real estate, sue by next friend.</p> <p>4. Evidence — Deed—Privity of Suit.</p> <p>Where a deed'made under a)' decree by a commissioner or other ¡authority is offered in evidence as a connecting link in the plaintiff’s chain of title to land, it is necessary to introduce with it so much of the record of the suit in which Isueh decree was made as will satisfactorily show that the person having the legal title to the -land conveyed ,was a party to the: suit, and as will identify the land conveyed with the land decreed.</p> <p>.S. Evidence — Deed—Ktranoer to Deed</p> <p>As against a party who claims'against the deed and is a stranger thereto, the recital of such facts therein, without more, is not evidence thereof, and the deed does not prove the transfer of the title to the land it purports to convey.</p> <p>5. Co-tenants — Waste.</p> <p>Cotenants, who commit waste, are liable to each other jointly or severally for the damages; but the amount of a recovery against .a stranger or a grantee of <a cotenant must be apportioned to correspond with his undivided interest in the land. A case where these principles are applied.</p>

<p>1. CONTRIBUTORY NEGLIGENCE — RAILROAD COMPANY — NEGLIGENCE.</p> <p>An engineer runs bis train on a sixteen degree curve, at a high rate of speed for such a curve,, and 'against the express orders to him of the railroad company, requiring him at that place to go slow. The engine, with four cars, leaves the track, whereby the engineer is killed. There is some evidence tending to show that the outer rail of the curve is not higher ithanilthe inner'one. Outside of mere conjecture, this is all thiat is known of the cause of the accident. There can be no recovery against the company for negligently oausinjg his death; forit thus appears that, if the lowness of the outer rail 'was a cause of the accident,- his own want of due care, and his violation of orders contributed to cause the same.</p> <p>2. Evidence — Verdict.</p> <p>A verdict based alone on mere conjecture, wi-thouti evidence to support it, where the ruleias to the burden of proof requires some reliable affirmative evidence, should not be permitted to stand.</p> <p>S. Contributory Negligence.</p> <p>Contributory negligenoe is a b'ar to the right of recovery.</p>

<p>cited High Inj.§§ 114,126,130,138,1613; 83 Ind. 303; 6 Mont. 203; 17 W. Va.474; 11 Graft. 522; 2 Bart. L. Prac. 1072, note 1; Sto. Eq. PI. §§ 75, 231, 236, 356, 369, 520; Calvert on Parties 77; Dan’l Ch. PI. & Pr. 295, 299,1,544, 1,676; Mit. PI. 186, 57 s. p., note2; Bart. Ch. Pr. 406; Code, c. 127, s. 2; 1H. & M. 7; 11 W. Ya. 694; 6 W. Va. 107,108; 29 W. Va. 795; 12 W. Va. 668; 29 W. Va. 817.</p>

<p>1. Homicide — Sedf-defekse—MaNsdaughteb.</p> <p>If an assault is made upon a man with an attempt to commit a, felony upon'liim, hie may resist so far as. it is necessary to resist the assailant, 'even if he must take the assailant’s life. But this has a limitation. If he can resist the assault and free himself without taking life, and kills the assailant without necessity, he is not excusable. If mere heat of blood impels him to take life in such case, be is guilty of manslaughter.</p> <p>2. Homicide — Self-defense—Justifiable Homicide.</p> <p>To reduce homicide in self-defense to excusable ’homicide, it must be shown that the slayer was closely pressed by the other party, and retreated 'as far as he conveniently or safely could, in good faith, with the honest intent to avoid the violence of the assault. ></p> <p>3. Homicide — Self-Defense—Apparent Danger.</p> <p>Where one without fault himself, is attacked by another, in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life or to do him some great ibodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe such danger is imminent, ho may aot upon such appearances, and, without retreating, kill his assailant, if he has reasonable 'grounds to believe, and does believe ’that such killing is necessary in order to avoid the apparent danger; and the killing under such, circumstances is excusable, although it may, afterwards turn out that the appearances were false, and that there was in fact neither design to do him some serious injury, nor danger that it would' be done. But of all this the jury must judge from all the evidence and circumstances of the case.</p> <p>4. Instructions — Evidence—Jury—Irrelevant Instructions.</p> <p>It is error in ¡a¡ court, in a 'case of 'felony, to give to, thd jury instructions'Which are not relevant to' the evidence, and which may mislead the jury to the prejudice of the defendant.</p> <p>5. Evidence — Conflict of Evidence — Jury.</p> <p>If there be, in the opinon of the jury, a substantial conflict in tbe evidence or circumstances, as to whether the killing was done in self-defense, and the circumstances or other evidence preponderate in favor of self-defense; or if it was equally balanced as to the killing being done in self-defense, the jury ought not to convict either of murder or manslaughter.</p> <p>6. Evidence — Insufficient Evidence — Verdict—New Trial.</p> <p>Where a 'Court which tries ai causei certifies! all the evidence adduced on the trial, and from, the evidence so1 certified it clearly appears that it was wholly insufficient toi sustain, the verdict, this-Oourt will set aside the verdict, and, in a proper case, award a new trial.</p>

<p>1. Tenancy in Common — Occupation by a Coparcener.</p> <p>By common-law, one joint tenant, tenant in common, or par-cener using the common land exclusively, but not ousting or ex-, eluding his co-owners, is not chargeable t'a them for use and occupation; but this rule has been] changed by section 14, chapter 100, Code, as to joint tenants and tenants in common, but not as to parceners.</p> <p>2. Tenancy in Common — Occupation by Copabceneb.</p> <p>A coparcener, merely from sole occupation of the premises, is not chargeable in favor of coparceners, unless he excludes them.</p> <p>3. Tenancy in Common — Occupation by Co-parcener — Im-PBOVEMENTS BY COPABCENEB.</p> <p>Where it is proper to allow 'a coparcener for improvements, a charge for use and occupation may. be set 'off against the improvements.</p> <p>4. Tenancy in Common — Improvements by Copabceneb.</p> <p>Permanent improvements made by one coparcener, without request or agreement of others are not chargeable to the others personally or upon their shares ini the land; but if made by their request or agreement, they are a debt upon them, and a lien on their shares in the land.</p> <p>5. Tenancy in Common — Contribution by Copabceneb — Repairs by Coparceners.</p> <p>One joint tenant, tenant in common, or coparcener can compel others to contribute to make necessary repairs toi a mill or house, after request to' assist and refusal. But this compulsion is as to, future repairs, not those already m&die by one of the co-owners. This compulsion only applies to mills and houses, not to fences, or other repairs to1 other properties.</p> <p>6. Tenancy in Common — Improvements by Coparcener — Partition.</p> <p>In partition the part' improved, if it can be done without ihjury to Others, should be assigned to the improver; but when this can not be done, the cost| of improvement can not be charged to him to whom it goes.</p> <p>7. TENANCY IN COMMON — IMPROVEMENTS BY COPARCENER — PARTITION.</p> <p>Whore, however, the property is not susceptible of partition, and must be sold to divide the proceeds, the coparcener who made repairs and permanent improvements shall receive out of the proceeds that amount by which! the property, at the date of sale, remains enhanced in value from the improvements, not their original cost.</p> <p>8. Chancery Practice — Commissioner’s Report — Exceptions.</p> <p>Where there is no exception t'o a, commissioner’s report, except as td error on its facie, it is taken as admitted by the parties to be correct, both as to the principles and the evidence on which it rests, and the court will not look into it, but must act on it as so admitted, except as to infants and persons non compos. If excepted to not later than the first term after its return, or .later by leave of court, the admission of its correctness ceases, and the court will examine it; buten therh earing of such'exception, unless taken within ten days after completion of the report before the commissioner, n¡o¡ evidence before him can; he used, unless he has made it a part of the report, or certified it, nr the court requires him to certify such evidence by order, ,in which cases it may be used to sustain the exception; hut depositions taken after the return of the report can not he used to overthrow the report. They can be used only to support a motion' to recommit the report.</p> <p>9. Chancery Practice — Commissioner’s Report — Exceptions.</p> <p>Error >on the face otf a report-may1 be taken advantage of in the lower 'or appellate court, with or without exceptions.</p> <p>10. Chancery Practice — Commissioner’s Report — Exceptions.</p> <p>Where exceptions is taken to a commissioner’s report before the commissioner, within ten day's ¡after its completion, it is his duty to certify) the exceptions and evidence before him relating to the exceptions, with such remarks as he may see proper to make, in order that the exceptions, may be heard by the court upon such evidence. He should so certify the evidence as to show it to be the evidence, sent up.</p> <p>11. Chancery Practice — Commissioner’sReport—Exceptions.</p> <p>Where such exception has been so ¡taken within ten days, the party excepting, or the adverse party, may take further evidence before the return of the report, and upon it the commissioner may amend 'his report, or make an amended report, as may suit the case, and then return his report and ¡amendment, if any, to the office of the court.</p>

<p>1. ADMINISTRATOR — EXECUTOR.</p> <p>An. executor or administrator can not sue or be sued out of the state conferring his authority.</p> <p>3. Administrator — Foreign Administrator.</p> <p>After a foreign administrator has come into a cause by petition to assert a demand of his decedent, the domestic administrator comes by petition] to assert the same demand in his name. It is proper to recognize the latter as the proper party to represent the estate, and he takes the place of the foreign administrator. In such cases, orders or decrees rendered bef ore the domestic administrator became a party do not bind) him.</p> <p>3. Chancery Pratice — Petition—Rehearing.</p> <p>A person who comes fori the first time into a pending cause by petition, and is a proper person to file such petition, may have prior erroneous orders in the cause reheard and corrected, upon prayer for that purpose in his petition, whether the case be proper for a petition for rehearing or bill of review in the case of a pai'ty to a cause.</p> <p>4. Joint Stock Companies —Stockholders —Stock Certifi'CATE.</p> <p>One who subscribes and pays for stock in a joint-stock company is a stockholder, though he have no certificate of stock.</p> <p> 5. lies Adjudicata. </p> <p>In a suit involving, among other things, a debt between two corporations, a decree is rendered for a certain sum in favor of the one 'against the other, ascertaining the amount of the liability on the basis of the amount of paid-up stock of the creditor company. That decree is res judicata and estoppel between the companies as to the amount of recovery, and also as /between the creditor company and its .stockholders, and also between such stockholders as regards the amount of the recovery, but not as to' the amount off paid-up stock in settling the rights of stockholders in the distribution of the fund arising from the debt so recovered.</p> <p>•6. Receiver — Commissions—Compensation.</p> <p>There is no fixed rule in this state as to. the mode of allowing compensation to a special receiver, whether hy way of commission. or a fixed sum. Usually, when the fund is large, a lump sum is proper. The amount and mode o>f allowance are within the sound discretion of the court, under th'e circumstances of the particular case, subject to review on appeal.</p> <p>7. .Receiver.</p> <p>Where a decree appointing a special receiver is revei’sed wholly, without any reservation, his office ceases with reversal.</p> <p>8. Receiver — Reoeiver’s Bond</p> <p>A receiver has no power or title until he give the bond required of him.</p> <p>9. Receiver — Counsel Fees.</p> <p>A special receiver may.be allowed fair and-reasonable fees paid to counsel necessary in the execution of his receivership. Courts ought to authorize employment of counsel where it is intended to give suchi power, and they are indisposed to allow such ’fees without previous authority to incur therm given- the receiver.</p> <p>10. Receiver — Counsel Fees.</p> <p>The amount of-such counsel feeá is within the sound discretion of the coui’t, subject toi review on appeal. Such fees are allowed to the receiver, not the counsel.</p> <p>11. Receiver — Expenses</p> <p>In the absence of authority previously given, expenditures to be allowed a special receiver must be reasonable, and such as are proper, essential, and necessary in the due and ordinary execution of his office, and such as were contemplated in his appointment and according to the nature of his business. In extraordinary cases, involving a large outlay of money, tbe receiver should always apply tot the court in advance, for authority to make it.</p> <p>12. Joint Stock Companies — Stockholders—Distribution of Assets.</p> <p>Those claiming as stockholders, the right to participate in the distribution of the assets in the winding up of the affairs of a private corporation must produce some satisfactory evidence of a present, subsisting interest.</p> <p>13. Corporations — Extraordinary Expenses — Bonds.</p> <p>A corporation has but one asset; namely, a decree for a certain sum against a railroad company, and a decree for the sale of its railroad, etc., to satisfy the same, after! first satisfying prior liens and charges to a large amount. The creditors and owners of a greater part of the stock may, if they see fit, give to outside ■parties, out of the amount decreedtoiithem, a bonus for a guaranty that at the commissioner’s sale the railroad, etc., shall be made-to bring at least enough to pay their claim, as well as-the prior liens and charges. And, if such bon-us is made to appear to 'have been that without which neither creditors nor stockholders would have received anything, -then the court. will charge the fund thus brought into the cause with the .payment of such bonus, and, after the payment of ■tihe creditors, distribute the surplus, if any, among the stockholders according to their respective interests.</p> <p>14. Contingent Fees.</p> <p>The payment of large contingent fees can not be provided for by the court, no matter how great and peculiar their merit may be. That, as far as lawful, must be left as a matter of express contract between client and attorney.</p> <p>15. COMMISSIONER — Counsel Fees — Trust Funds.</p> <p>The practice of allowing to trustees, complainants and receivers, and their counsel, large and extravagant counsel fees and commissions, payable out of trust funds under the control of the court, commented on and disapproved.</p>

I.— rrhe engineer and fireman of the special engine were fellow servants of the decedent, a section hand upon the track,— 109 IT. S. 478; 27 Md. 589; 58 Wis. 585; 9 Cush. (A/ass.) 112; 88 N. Y. 481; 81 Minn. 553; 35 N. W. Rep. 582; 5 N. Y. 492. II.— The plaintiff’s decedent was guilty of contributory negligence. — Cooley on Torts (2d Ed.) p. 812; 29 W. Va, 98; 33 W. Va. 548; 88 Mich. 334; 30 W. Va. 798.

<p>1. Lien.</p> <p>A lien1 is the ligament or tie which binds certain property to a particular debt for its payment or satisfaction.</p> <p>2. Mechanic’s Lien.</p> <p>What- is known as the “mechanic’s lien” on real estate and ■buildings is the creation of statute. It was unknown at common-law, but the right given by statute to enforce it in a court of equity carries with it all the rights incident to that court’s principles and rules and its methods, oil procedure.</p> <p>8. Mechanic’s Lien — Statutory Requirements.</p> <p>Such lien can be maintained only by a, substantial observance of and compliance with the requirements of the statute, but the statute is given a fair and and liberal construction) as to the creation, of the lien and its enforcement.</p> <p>4. Mechanic’s Lien — Statutory Requirements.</p> <p>In ascertaining whether the account which, is required to baffled and recorded to create the lien is a substantial compliance with the statute in respect to designating the name of the owner of the property, the account proper, and the sworn statement annexed thereto, may be read together.</p> <p>5. Mechanic’s Lien — Construction oe Statutes — Matured Liability.</p> <p>Section 4 'of chapter 75 of the Code, which' requires a just and true account of the amount due after allowing all credits, to be sworn to and filed for record, uses the term “due” in the sense of an existing liability, without reference to -whether it be then matured and enforceable by suit or not matured and not then enforceable by suit.</p> <p>6. Chancery Pleading- — Bill in Chancery.</p> <p>A bill framed with a double aspect, 'but upon consistent states of facts, praying relief in the alternative, is hot for that reason open to objection.</p>

<p>1. Nuisance.</p> <p>A mill, manufacturing powder and other explosives, and storing ‘tOie same on the premises, situate on the hank of the Ohio river and near two railroads and a public) road, is a nuisance per se. Wilson v. Manufacturing Co., áO'.W. Va. 413.</p> <p>2. Nuisance — -ManueactuRing Explosives — Injunction.</p> <p>When a company engaged in. the manufacture of powder and other explosives, Without misrepresentation or concealment on its part, is induced to locate its works at great expense on lands adjacent to the property, and for the prospective benefit of a land development and improvement company, such latter company can not, on discovering that the proximity of such powder works has diminished instead of enhanced the value of its adjoining territory, enjoin the continuance of such works as a nuisance.</p>

<p>1. INSTRUCTIONS — MURDER IN FIRST DECREE — JURY.</p> <p>It is not error for a count to omit to instruct a jury that it may punish murder in the first degree with either death or confinement in the penitentiary, unless asked to do so.</p> <p>. 2. Instructions — Jury.</p> <p>It is error to refuse to do so when asked, .though not asked until the jury announced its verdict, but before its discharge.</p> <p>i</p> <p>8. Instructions — Time for Instructions — Bude of Court.</p> <p>The law does not fix any time for instructions. The court may fix it by rule.</p> <p>4. Jury — Verdict.</p> <p>A court may, for good reason, return a jury to its room to further consider and amend or alter its verdict, at any time before a verdict is received by the court and the jury discharged.</p> <p>5. Instructions — Specific Instructions.</p> <p>A court, though asked, is not bound to instruct a jury generally as to the law of the case. Instructions as to the specific law points ought to be asked. A court may, without request, if it think the interest of justice and a fair trial call for it, instruct the jury in matter of law, the instruction being sound in law and relevant to the evidence; but it is not bound to do so unless asked; but, if asked to give such proper specific instructions, it must do so.</p> <p>6. Instructions — Time for Instructions — Waiver.</p> <p>The court suggests privately to' counsel of prisoner the prudence of instructing the jury of its power to punish murder in the first degree either with, death or by confinement in the penitentiary, and counsel says that he prefers to take chances rather than call the jury’s attention to that law at that time. This does not estop the prisoner from asking such instruction later, even after the jury has announced a verdict of murder in the first degree, but before it is received on the jury discharged.</p> <p>7. JuroRS — VeRdict—Affidavit of Jurors.</p> <p>Affidavit of jurors tliat they, .were, ignorant of the law that it is-with a jury to say whether murder in the first degree shall be punished with death or confinement in the penitentiary can not be read to impeach the verdict.</p> <p>8. Jurors — Verdict—Affidavit of Jurors.</p> <p>As a general rale, affidavits of jurors to' impeach their verdict-can not be read.</p>

<p>1. FORGERY — INDICTMENT—VARIANCE.</p> <p>While in an indictment (or forgery!'ibis unnecessary to set forth a copy or fac simile of the instrument forged, yet if this is done, and there is a material variance between the copy so' set out and the paper offered in evidence, such paper, on motion, of the accused, should be excluded from the consideration of the jury.</p> <p>2. Forgery — Indictment—Variance.</p> <p>When the alleged forged note is set out in haeo verba, and in the body thereof are the words “with 6 per cent. int. from date," and the note offered ini evidence contains no ■ such words, this is a variance, both in substance and legal effect, fatal to the introduction of such; last mentioned note as evidence in support of the allegations of the indictment.</p>

<p>cited Code, c. 99, s. 14; 14 G-ratt. 44-45; 13 W. Ya. 718; 20 W. Va. 498, 510 ; 50 N. H. 297; 57 Hun. 589; 12 Ins. Law Journ. 417-421; 22 Id. 358; 10 W. Ya. 522; 21 W. Ya. 368, 576, 579, 594; 28 W. Va. 591; 30 W. Va. 797-; 104 U. S, 779; 86 Va. 512; 2 May Ins. (3d Ed.) 459a; 144 U. S. 624; 37 W. Va. 789; Const. Art. VIII, s. 5; 37 W. Va. 116; 16 Pet. 494, 505; 9 Vroom (N. J.) 140, 143; Flands. Ins. 442; 38 Cal. 544; 55 N. H. 457; 30 Cal. 78; 25 N. H. 289; Code, c. 19, s. 14; 139 Mass. 57; 10 Allen 213; 1 Bosw. 507; 25 W. Va. 624, 628, syl. pt. 15; 31 W. Va. 851, 854; Code, c. 125, ss. 11,12, 61, 62, 64, 65; 24 W. Va. 206; 117 Pa. St. 94; 77 Mich. 231; 11 S. W. Eep. 12; 45 Mo. 562; 27 Mich. 138; 35 Mich. 227; 16 S. W. Rep. 174; 107‘N. C. 724; 34 W. Va. 252; 41 Fed. Rep. 744; 1 Chit. PI. 200; 39 W. Va. 672; Code, c. 130, ss. 46, 64, 66; 39 W. Va. 732; 18 W. Va. 400; 1 Chit. PI. 213.</p> <p>cited 6 W. Va. 336; 24 W. Va. 206; 28 W. Va. 653; 34 W. Va. 252; 106 Pa. St. 28-34; 52-N. W. Rep. 588-590; 34 P. Rep. 1059-1076; 37 W. Va. 789, 795.</p> <p>among other points and authorities, submitted the following:</p> <p>I. — The consent of the insurance company to the assignment to Bentley made on the face of the policy, was equivalent to a promise by the insurance company to pay Bentley. — 2 May on Ins. (3d. Ed.) §§ 446, 378; 2 Wood on Ins. (2d. Ed.) § 514; 1 Jones on Mortgages § 407; 124 Mass. 132; 5 R. I. 394, 399.</p> <p>If this new promise and contract was assigned to Louth after the fire by Bentley, Louth could sue in Bentley’s name as assignor. —14 Gratt. 45, 46; Id. 2, 13.</p> <p>It would not be necessary to state in the record that suit was brought for the use of Louth. — 14 Gratt. 46.</p> <p>The verdict of the jury is conclusive. — 2d McLean, 261; 8 W. Va. 553; 23 Gratt. 619; 29 W. Va. 529 ; 34 W. Va. 774; 12 W. Va. 116.</p> <p>Motion to set aside a verdict is same as demurrer to evidence. — 34 W. Ya. 43.</p> <p>Inferences most favorable to the demurree will be made in cases of grave doubt. — 8 W. Ya. 515, 3rd pt. of syllabus.</p> <p>Even in construing the evidence of a single witness. — 10 Leigh 164; 34 W. Ya. 43; 37 W. Ya. 796; 37 W. Ya. 287.</p> <p>II. — Bentley, the plaintiff, could recover for loss by the fire upon property not included in his mortgage.</p> <p>It is true that the insured must 'have an insurable interest, but no insurable interest is necessary in the assignee. — 2 May on Ins., 3d Ed., Analysis by Mr. May, bottom p. 831, also at end of § -378, middle of § 378a and § 379; Flanders on Ins., p. 443 and the notes, and p. 446 and the notes; also pp. 452, 453; 12 Wright (Pa.) 367, 373 and 374; 31 Mich. 346, 355.</p> <p>Where the policy is assigned to a mortgagee as collateral security, he may recover the whole sum insured if the loss be so much.— Am. & Eng. Ency. of L. & E., vol. 7, p. 1051.</p> <p>The effect is not to assign the insurance as such, but the loss fund. ■ — Flanders on Ins., p. 443 and note, p. 446 and note, pp 445 and 447 in text; 38 Cal. 544, 545; 12 Mass. 281.</p> <p>An assignment is the same thing as an entry on the face of the policy, pay to A B. loss, if any.- — -Flanders on Ins., p. 442; 38 Cal. 544; 2 Wood on Ins. (2d Ed.) § 370; 2 May on Ins. (3d Ed.) end of § 378.</p> <p>Louth continued to be the insured after the assignment. Bentley by the assignment only acquired a right to the loss fund, in case there was no breach of the conditions of the policy by Louth.— 2 Wood on Ins. (2d Ed.) § 370; 2 May on Ins. (3d Ed.) §§ 378a, 382; Flanders on Ins., p. 454, § 11.</p> <p>The word mortgagee was only descriptive of theperson. — -7 Leigh, 604.</p> <p>We could safely rest the plaintiff’s right to maintain this suit as to loss on the yroperty not included in the mortgage, upon — 37 W. Ya. 789.</p> <p>The party to whom loss is made payable may sue for and recover the whole amount under the policy, holding the residue, if any, over and above his own interest, as trustee for the benefit of the owner or others interested.- — 1 Jones on Mortgages, § 407; 5 K. I. 394 and 399; 124 Mass. 126, 13277 N. Y. 600,' affirming 13 Hun. 122; 23 W. Ya. 276, citing 93 U. S., 527; 19 N. H. 575 ; 60 N. Y. 619; 5 Duer, 517; 2 Wood on Ins. §514, pp. 1123,1124, and § 370 ; 2 May on Ins., § 378; Flanders on Ins., Ed. of 1871, pp. 452, 453, 447, in note; 7 Cush. 6.</p> <p>III.— The filing of the amended declaration and amended statement was not the commencement of a new suit as to the additional items claimed therein in excess of the five hundred and twenty two dollars and twenty four cents claimed in the proofs of loss, and therefore the recovery of such additional items was not barred by the provision of the policy that all actions on the same must be brought within six months after the fire. — 34 W. Ya. 252; 28 W. Ya. 653 ; 11 S. W. Bep. 1089 ; 69 Iowa 350 ; 77 Pa. St.'441; 134 Mass. 308; 29 Maine 108; 13 Hun. 122; 77 N. Y. 600;</p> <p>IY.— The proofs of loss did not estop the plaintiff from recovering a greater amount than that claimed in-them. — 1 Am. &Eng. Enc. of L. & E., bottom p. 113 ; Sto. Eq. Jur., § 527; 106 Pa. St. 34; 52 N. W. Bep. 548; 57Midi. 21; 25 Midi. 471; 55 Midi. 436; 2 May on Ins. (3d Ed.) end of § 424a: 142 U. S. 699.</p> <p>Y.— The Circuit Court ought to have refused-to allow any of these five questions to be asked the jury, because if answered favorably to defendant they would, not have clearly excluded every conclusion that would authorize a verdict for the plaintiff. — 35 W. Ya. 667.</p> <p>The four questions asked of the jury were all fully and properly-answered, the first time the jury answered them, and again more fully, but not either more or less properly answered when the jury ivas compelled to answer them a second time at the instance of defendant's counsel.</p> <p>When a fire has occurred the courts are very reluctant to deprive the insured of his indemnity for any failure or neglect to comply with any of the mere formal requisitions relating to recovery. — 1 May on Ins. (3d Ed.) § 217; 137 N. Y. 398.</p> <p>YI. — The Circuit Court erred in favor of the defendant in the instructions. Bentley had the legal title whether he had reassigned to Louth all his interest or not, and even if the jury found that such reassignment was made, it was error for the Circuit Court to instruct them that Louth could not sue in the name of Bentley.</p> <p>YTI.— The common counts and an account stated can be properly joined with the count in statutory form on an insurance policy. —Code, c. 125, s. 61; 9 Graft. 183, 185; Minor’s Inst., voL 4, pt. 1, pp. 576 et seq., 941; 28 W. Ya. 583.</p> <p>On IiEHEARING.</p> <p>TUI.— The petition for rehearing claims that: “In none of the cases cited by the Gourt to the effect that the insured is not bound or estopped by his proofs of loss, does it appear that by the terms of the policy contract the amount of loss was payable only after proofs of such amount were furnished.”</p> <p>“As the proofs are only made to ■show the insurer a state of facts to enable the latter to adjust and pay the loss, if he declines to adjust, but waits a suit, the purpose for which the proofs iwere made is over; and therefore it has been held that innocent errors of statements in the proofs as to value of the thing destroyed may be corrected at the trial, for there is no estoppel.” —Section 1012 of 2d Biddle on Ins.; 82 Oal. 263; 31 M. Y. Sup. Ct. Rep. (24 Iiun) pp. 58, 61.</p> <p>The provision in the policy that the loss (meaning of course the amount of the loss) shall be paid sixty days after the proofs of the same have been furnished, has no application in a case like the one at bar, when the insurer “awaits a suit,” because then “the purpose for which the proofs were made is over.” — 2d Biddle on Ins. § 1012.</p> <p>A general refusal to pay at all will excuse defects, and is a waiver of proofs of loss. — 2d Bicldlo on Ins., §§ 1136, 1139 ; 2 May on Ins. (3d IM.) § 469.</p> <p>If the insurance company fails or refuses to pay the smaller sum mentioned in the proofs of loss, it waives proofs of the larger sum constituting the actual loss, for it would be a nugatory thing to make such proofs, and the law does not require idle ceremony. — 21 W. Ya. 383.</p> <p>If the insurance company would, not pay the less sum it would not pay the greater. — 52 Ill. 464.</p> <p>When an amicable adjustment is refused to be made or the company refuses to pay or denies liability the above provision, that the amount of the loss shall be payable sixty days after proofs of the same are furnished has no application, for the loss becomes payable immediately. — 2 May on Ins. (3d Ed.) note 1, on bottom p. 1121; 14 Mo. 220; 51 III. 342; 56 Tex. 366.</p> <p> As above “the purpose for which the proofs were made is over,” and the provisions as to proofs of loss are considered as eliminated from the policy. </p> <p>“ They never were a part of the contract and did not fix the liability of the insurance company, but (ordinarily) they serve to fix the time when the loss becomes payable.” — 39 W. Ya. 672, pt. 3 of syllabus. When, however, the insurance company refuses to pay or denies liability as they did in this case the proofs of loss do not serve to fix the time when the loss becomes payable, for, as established by above cases, the loss becomes in such event pay- • able immediately. — 21 W. Ya. 383.</p> <p>A refusal to pay and denial of liability are the same in effect. — 33 W. Ya. 544.</p>

plaintiffs below, submitted tbe following brief :* This suit is entirely amicable in its character. Held: however, that the remainder to Sydney’s children was a contingent remainder, depending on the contingency of their surviving Sydney; that the fee remained in the grantor, notwithstanding the conveyance, and passed to his heirs, so that the deed made' by his children, though before Sydney’s death, passed the fee-subject to be defeated…