Volume 42 — West Virginia Reports

<p>cited Acts 1870, e. 3, s. 4; Code c. 123, s. 1; 33 W. Va.135; Code c. 125, ss. 44, 47; 4 Min. lust. Pt. 1, pp. 591, 645, 646,647; 26 W. Va. 379; 8 W. Va. 216; 11 W. Va. 276; 12 W. Va. 297; 30 W. Va. 296; 2 Tuck. Com. s. p. 211; 5 Am. & Eng. Enc. Law, 464, 496; Iiil. New Trials, 553, 554; 1 Graham & Water. New Trials, 77, 78, 79; 6 Munf. 267; 8 Leigh, 109; 34 W. Va. 62; 41 W. Va. 550; 41 Cal. 17; 62 Iud. 352; 4 Wis. 45; 6 Wend. 514; 5 N. H. 531; 29 Eng. L. & E. 306; 106 N. C. 267; 4 Eng. Eepts. 354; 58 Tex. 405; 53 Wis. 169; 87 N. C. 497; 65 N. C. 76; 29 Iowa, 510; 47 Minn. 428; 19 Wis. 525; 11 Lee, 227; 4 H. & M. 427; 29 Cal. 72; 62 Cal. 263; 26 Gratt. 71; 34 W. Va. 514; 35 W. Va. 117; 39 W. Va. 50; 20 Miss. 550; 5 Iowa, 463; 33 Conn. 237.</p> <p>cited 33 W. Va. 138; 4 Min. Inst. Pt. 1, p. 863; Bart. L. Prae. 187; 2 Leigh, 177; Code' c. 125, s. 30; 26 W. Va. 274, 384; 29 W. Va. 777; 34 W. Va. 172; 6 W. Va. 79; 9 Leigh, 478; -26 Gratt. 67; 9 Gratt. 40; 10 Gratt. 509; 6 Band. 125; 18 Gratt. 385; '8 Leigh, 114; 34 W. Va. 62; 20 S. E. Bep. 456; Code c. 131, s. 9; 39 W. Va. 659; 40 W. Va. 675. .</p>

<p>1. Equity Pleading — Bill in Equity — Answer.</p> <p>Allegations in a bill in chancery positively denied by the averments of the answer, and unsustained by proof, must, at the hearing, be regarded as waived by the plaintiff.</p> <p>2. Equity — Presumption oe Waiver — Laches.</p> <p>When lapse of time is sufficient to raise the presumption of assent, acquiescence, or waiver on the part of plaintiff, or those under whom he claims, he can not recover unless he rebuts such presumption by a reasonable and satisfactory excuse for the delay in the assertion of his rights not founded on his own laches or neglect.</p> <p>3. Equity Pleading — Bill in Equity — Answer.</p> <p>It is incumbent on the plaintiff to show by his allegations and proofs, his right to a decree before he can require the defendant to sustain the affirmative allegations of his answer.</p>

<p>cited 1 Am. & Eng. Enc. Law, 401; 1 Ohitty, Cont. (11th Ed.) 386; 25 W. Va. 387; 1 Wait, Act. & Def. 238, 239, 360.</p> <p>cited 1 Am. & Eng. Enc. Law, 401; 31 Am. Dec. 715; 17 Am. Dec. 529; 10. Am. Dec. 65; 34 Am. Dec. 41; 6 Am. Dec. 280.</p>

<p>1. Eminent Domain — Compensation.</p> <p>Section 9, art. Ill, of the Constitution of the state provides that private property shall not be taken by any company incorporated for the purposes of internal improvement until just compensation shall have been paid or secured to be paid to the owner.</p> <p>2. BailRoads — Public Highways.</p> <p>Section 9, art. XT, of the Constitution reads as follows: “ Bail-roads heretofore constructed or that may hereafter be constructed in this state are hereby declared public highways and shall be free to all persons for the transportation of their persons and property thereon under such regulations as shall be prescribed by law.”</p>

<p>1. Coal Mining — Constitutional Law — Injury.</p> <p>Section 7 of chapter 79 of the Code is as follows: “No owner or tenant of any land containing coal shall open or sink, or dig, excavate or work in any coal mine or shaft, on such land, within five feet of the line dividing said land from that of another person or persons, without the consent, in writing, of every person interested in, or having' title to, such adjoining lands in possession, reversion or remainder, or of the guardians of any such persons as may be infants. If any person shall violate this section, he shall forfeit five hundred dollars to any person injured thereby who may sue for the same.” This statute is constitutional, and by the term “injury” means the wrong done the party by the violation of the statute.</p> <p>2. STATUTORY PENALTIES — ACTION—TRESPASS ON THE CASE.</p> <p>The penalty prescribed may be recovered by the person injured in an action of trespass on the case in the form set forth in the opinion.</p> <p>3. Pleading — Demurrer to Evidence — Evidence.</p> <p>Plaintiff or defendant may demur to the evidence, and the de-murrant must set out the whole evidence; and the court, unless it be plainly against the demurrant, and appears to be resorted to only for delay, should compel the other party to join in the demurrer without requiring the demurrant to make on the record any admission of inferences of fact; but it is for the court to deduce all inferences fairly deducible from the evidence demurred to.</p> <p>4. Pleading — Demurrer to Evidence — Evidence.</p> <p>By demurring to evidence the demurrant is now, under section 9 of chapter 131, not held to waive any part of his competent evidence; but where it conflicts with that of the other party it will be regarded as overborne, unless it manifestly appears to be clearly and decidedly preponderant. He admits the credit of the evidence demurred to, and all inferences of fact that may be fairly deducible from the evidence, but only such facts as are fairly deducible; and refers it to the court to deduce such fair inferences.</p> <p>5. Statutory Penai/ties — Verdict.</p> <p>Ifc is not necessary for the jury to find any hypothetical verdict for damages where, as in a ease like this, the action is on a statute, and only for a forfeiture or penalty definitely prescribed thereby.</p> <p>6. Statutory Penalties — Action—Debt.</p> <p>Where, as in this ease, the statute prescribes the penalty or the sum to be forfeited, but not the form of action, debt will lie; or the form of action may be such as the particular nature of the wrong or injury may require.</p> <p>7. Statutory Penalties — Damages.</p> <p>Any person injured by the violation of a statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of damages. Section 7, chapter 103, Code.</p>

<p>cited 5 W. Ya. 216; 10 W. Va. 115; 20 'W. Ya. 469; 23 W. Ya. 325; 33 W. Ya. 230; 1 Greenl. § 177; 2 Id. §§ 482, 483, 484; 2 Lawson, B. R. §§ 639, 640; Abbott Trial Ev. § 11 notes.</p> <p>I. — Partnership—plaintiff not bound to prove who compose same. — Code (1891) c. 125, s. 41; 29 W. Va. 410, pt. 1 of syllabus and p. 417 of opinion.</p> <p>II. — Partnership confessed — in this case. — 28 W. Ya. 417.</p> <p>III.— What is part of record? — 25 "W. Ya. 108, pt. 1 of syllabus, pp. 110,111; 26 W. Ya. 49, pt. 4 of syllabus, opinion p. 53; 26 W. Ya. 710, pt. 2 syllabus.</p> <p>IV.— Whether partner or not — question of fact for jury. — 17 Am. & Eug. Euc.Law, 882 a; 1 Liudley on Partnership (2nd Am. Ed.) bottom p. 112.</p> <p>Y. — Partnership—bound and estoppedfrom denying it. — 17 Am. ■& Eng. Enc. of Law, 879; 1 Lindley on Partnership (2nd Am. Ed.) bottom pp. 98, 104-6, 108-9.</p> <p>VI. — Setting aside verdict. — 21 W. Va. 709, 712, pt. 3 of syllabus; 21 W. Ya. 741, pt. 2 of syllabus, and 755; 29 W. Ya. 421.</p>

<p>cited 7 C. C. Bep. 499-503; 3 C. C. Rep. 587; 150 Pa. St. 164; 108 N. C. 377; 111 N. C. 234; 84 N. Y. 393, 399, 401; 24 S. W. Rep. 564; 125 Mass. 374; 65 Tex. 13; 24 Atl. Rep. 785; 41 N. J. L. 48; 78 Ill. 611; 82 Ky. 596-601; 52 Mo. App. 357-62; 1 Rev. Stat. Ohio (1890) §§ 3112, 3114; Sto. Confl. Laws (8th Ed.) § 556; 91 IT. S. 406; 21 W. Ya. 658; 29 W. Ya. 365; 10 W. Ya. 171; 13 W. Ya. 572, 573; 19 W. Ya. 366; 27 W. Ya. 555; 37 N. E. Rep. 537.</p> <p>cited 13 Ohio St. 419; 30 Ohio St. 250; Code, c. 66, s. 11; Sto. Confl. Laws, §§ 175, 188; 16 IIow. 314; 23 W. Ya. 338, 395.</p>

<p>1. Exceptions — Trial—Verdict.</p> <p>An exception to an opinion of the court pending a jury trial should be made at the time of its expression, but it is not too late if made before the retirement of the jury. An exception for refusal to set aside the verdict and grant anew trial may be made not later than the close of the term.</p> <p>2. New Trial.</p> <p>Discussion of motions for new trial.</p> <p>3. Reversal — Verdict—Evidence.</p> <p>A verdict ought not to beset aside by this Court as contrary to evidence where the evidence is conflicting, unless it manifestly ap_ pears that it was moved by passion, prejudice, or other evil influence, or is plainly against the clear and decided preponderance of evidence, and its setting aside is called for by the demands of justice.</p>

<p>cited 1 Munf. 162; 6 Mtinf*. 25; 14 Gratt. 526.</p> <p>cited 10 W. Ya. 115; 16 W. Ya. 522, 687, 778; 26 W. Ya. 49, 710; 25 W. Ya. 108; 81 W. Ya. 280, 450; Code c. 131, s. 7; 10 Gratt. 421; 12 Gratt. 462.</p>

<p>cited 27 W. Ya. 258; 5 Mo. 46; 46 N. Ii. 151; 145 Mass. 361; 116 TT. S. 491; 38 W. Va. 291; 20 W. Va. 23; 34 S. C. 255;. 33 W. Va. 417; Wood, Master & Serv. § 109; 96 N. C. 149; 42 Ind. 285; 22 S. W. Rep. 557; 18 S. W. Rep. 517; 126 Pa. St. 404; 34 S. C. 255; 40 W. Va. 138.</p> <p>cited 2 Pars. Contract (5th Ed). 46; 27 W. Va. 258; Wood, Master & Serv. §§ 67, 72, 76, 100, 189; 3 Am.& Eng. Enc. Law, 860; 8 Id. 658, 660, 661; 17 Id. 336, 339; 28 W. Va. 378; 385, 386; 31 Gratt. 52; 20 W. Va. 23; 38 W. Va. 283; 31 W. Va. 340-1; 41 W. Va. 481; 38 W. Va. 456, 645, 727; 41 W. Va. 445; 37 W. Va. 606; 20 W. Va. 23; 63 Conn. 530,543; 38 N. E. Rep. 826; 36 N. E. Rep. 919, syl. pts. 3, 4; 97 N. C. 280; 22 N. E. Rep. 777; 67 Hun, 472; 22 W. Va. 120; 13 Pick. 1; 72 Hun, 472; 59 N. W.Rep. 159; 30 Yt. 571; 35 W. Ya. 389; 40 W. Ya. 138; 22 S. W. Rep. 557; 29 Pa. St. 369; 15 Barb. 494; 34 Tex. 291; 69 Pa. St. 144; 44 Iowa, 466; 66 Barb. 507; 59 Pa. St. 347, 349; 121 Ind. 255; 27 Iowa, 99; 38 N. E. Rep. 426; Clark, Contracts, 134,785;! S. E. Rep. 366; 76 Micb. 448; 52 N. W. 257; 27 N. E. Rep. 132,511.</p>

<p>Judgment by Default — Setting Aside Judgment.</p> <p>After judgment by default has been entered up in court, or an order of inquiry of damages has been executed, under section 46, chapter 125, Code, it can not be set aside, and a defense to the action be allowed, under section 47, without good cause being shown therefor; and such good cause can only appear by showing fraud, accident, mistake, surprise, or some other adventitious circumstance beyond the control of the party, and free from neglect on his part.</p> <p>2. Judgment by Default — FatluRE to Defend Suit.</p> <p>Case where failure of attorney or party to make defense is held not good cause for setting aside a judgment by default.</p>

<p>cited 2 Jones Eq. (N. C.) 510; Code, c. 65, s. 15; Acts 1882, c. 86; 18 W. Va. 455; 24 W. Va. 95; 1 Lorn. Dig. § 64; 2 Blackstone, 208; 4 Kent, 29; 1 Kerr, R. Prop. § 723,725; 2 Tuck. 57; 2 Minor, 124; 1 Washburn, 130; Stewart, Hus. & W. § 155; Boone, R. Prop. § 46; 1 Pet. 503; 9B. Mon. 59; 10 B. Mon. 48; 13 B. Mon. 420,467; 1 How. 37; 75 Va. 129; 88 Tenn. 595; 42 Vt. 686; Code, c. 139, s. 7; Code, c. 41, s. 6.</p> <p>cited 4 Am. & Eng. Enc. Law, 945; 21 Id. 1057; 1 Lorn. Dig. (2nd Ed.) 77; 1 Pet. 503; 1 Greenl. Cruise R. Prop. 152, note; 4 Kent’s Comm. 29, 30; 26 W. Va. 369; Code c. 71, s. 4.</p>

<p>1. Assessment of Taxes— Legislative Power.</p> <p>The imposition of taxes, and the law directing the mode of assessment and collection, are the exercise of legislative power, to be exercised in conformity with the requirements of the Constitution, by general law.</p> <p>2. Assessment op Taxes — County Court — Judioial Acts.</p> <p>When the question of the legality or illegality of the listing of property on the land books for taxation comes before the county court for correction, on the application of the party assessed, who feels himseif aggrieved, the county courts acts, in review of the action of the commissioner of reassessment, as an administrative board; and such action of the county court is not “judicial,” with-ni the meaning of section 24 of article VIII of the Constitution.</p> <p>3. ✓Assessment op Taxes — Circuit Court — Judicial Power.</p> <p>When the issue on such controversy is made up between the applicant and the state for the purpose of appeal to, and decision between such parties by, the circuit court, as to the right and legality of such assessment litigated between them, in the mode and according to the proceeding prescribed by law in such case for contesting the right claimed, and deciding the controversy, the orders and judgment of the circuit court are made and rendered in the exercise of its judicial power, in the proper and ordinary sense.</p> <p>4. MINING PRIVILEGES — FREEHOLD INTEREST — ASSESSMENT OR Mining Privileges.</p> <p>A privilege or liberty or license to search and explore the land for oil or other minerals, coupled with a grant to dig and remove them, and convert them to the grantee’s own use, if in fee or for life, creates an incorporeal freehold right in the real estate, which may be assessed to the grantee separately from the land or its surface, and, if the minerals be found and produced, creates a freehold interest, which should be assessed separately on the land books, under the act of February 27, 1891 (chapter 36) entitled “An act to provide for the reassessment of the value of all real estate within this state.”</p> <p>6. Mining Privileges — Estate for Years — Assessment of Mining Privileges.</p> <p>But such privilege, liberty, or license, and such interest, if limited to a term of years, are not held and owned as the whole or a part of a freehold ownership, within the meaning of the act, and should not be separately assessed to the mining licensee or lessee on such land books.</p>

<p>1. Deed of Trust — Sale—Error.</p> <p>Where a court orders a trustee to sell land under a deed of trust, it is not reversible error to omit to give a day to redeem, or to require bond of the trustee before sale, in a case of an injunction by the debtor to restrain a sale by a trustee, no other creditor being involved.</p> <p>2. Deed of Trust — Sale—Injunction—Usury.</p> <p>In a case of apure injunction to restrain a trustee from selling land under a deed of trust to secure a debt, on the ground of usury, where it appears that there is no usury in the debt, the injunction should be dissolved and the bill dismissed, so that the creditor may enforce his right under the trust, no other creditors being interested in the case.</p>

<p>MASTER AND SERVANT — ASSUMPTION OF RISK — FELLOW SERVANT. 1.</p> <p>A party who enters the service of a railroad company as a brakeman takes upon himself the natural and ordinary risks and perils incident to the performance of such services, including the perils arising from the carelessness and negligence of those who are in the same employment as fellow servants.</p> <p>Master and Servant — Fellow Servant.</p> <p>If one brakeman on a freight train is injured by the carelessness and negligence of another brakeman upon the same train in the performance of his ordinary duties, they are fellow servants, and the railroad company is not liable for the injury thus occasioned.</p> <p>3. Master and Servant — Contributory Negligence — Fellow Servant.</p> <p>Where a brakeman, in attempting to withdraw the coupling pin and uncouple a car from the engine and tender, stands with one foot on the bumper belonging to each car, and, with his lantern in his left hand, leans forward, and reaches with his right hand to withdraw the coupling pin, which has already been withdrawn by a fellow brakeman, and the cars separating cause him to fall between the cars, and to be run over and injured, he must be regarded as negligent, and his negligence must be considered the proximate cause of his injury.</p>

<p>Trust Property — Improvements—Trustee—Reimbursement.</p> <p>Where a trustee in good faith expends his own funds in improving the property of the cestui que trust, and the property is enhanced in value by such improvements to the- extent of the expense thereof, such trustee is entitled to be reimbursed such expense out of the increased rents occasioned by such improvements.</p>

<p>1. Evidence — Competency op Witness — Transactions with Decedent.</p> <p>In a-suit brought by a creditor to set aside a deed for fraud as to his debt, the grantee is not incompetent to testify in support of his title and the good faith of his conveyance for the reason that it necessarily .involves transactions and communications had with a deceased grantor, whose personal representatives or heirs are made parties defendant to the suit.</p> <p>2. Evidence — Depositions—Reversal.</p> <p>When the circuit court sustains exceptions to depositions, and erroneously excludes material and important evidence before passing on the case, and then finds contrary to what its decision might have been, had such evidence not been excluded, this Court will reverse the case for such erroneous ruling alone, and remand it for further proceedings.</p>

I. — Compensation between parent and adult child. — 31 G-ratt. pp. 52-56; 20 W. Ya. 23. II. — There loas nothing immoral or illegal in Ward Parsons allowing Lemuel W. Parsons the credit of $2,900 in the deed of March 4th, 1892. — 2 Johns. Chy. 306; 26 Gratt. 563; 8 Leigb, 271. III. — A deed, honest and lawful upon its face, must be treated as such until it is shown to be otherwise by evidence. — 22 W. Ya. 357, syl. pt. 10; 17 W. Ya. 717.

<p>1. Pledge — Bailment.</p> <p>A pledge is a bailment of goods by a debtor to his creditor, to be kept by him until his debt is discharged.</p> <p>2. Pledge — Pledge by Wbiting — Acceptance.</p> <p>Where a party residing in Philadelphia gives the following order to his agent in the city of Parkersburg: “Mr. C. S. Fewsmith, Parkersburg, W. Va.: Will please hold to the order of Peter C. Hollis and J. L. Richards, trustees of the estate of Samuel Simes, deceased, my stock of lubricating oil stored in my oil tank in Parkersbuig, W. Va. as collateral security for the return of $7,500, borrowed and received of them, and oblige, truly, Wm. W. Harkness;’’ which paper was indorsed: “Accepted. Parkersburg, W. Va. May 23rd, 1888. [Signed] Crowell S. Fewsmith,” — said Fewsmith being at the time the agent of said Harkness in possession of said oil — the acceptance of such order transferred the possession of the oil to said trustees of Samuel Simes, deceased, and the oil was thereby pledged for the payment of said borrowed money.</p> <p>3. Pledge — Attachment.</p> <p>An attachment subsequently levied upon said property as the property of said William W. Harkness would be subject to the lien created by said pledge.</p> <p>4. Pledge — Recording oe Pledge by Writing.</p> <p>Although said pledge was evidenced by writing, it need not be recorded to make it effective as a lien on said oil.</p>

<p>cited 39 W. Ya. 498; Const. Art. XII, ss. 1, 2; Id. Art. VII, s. 5; Id. Art. X, s. 7; Code, c. 45, ss. 9, 13, 14, 20, 21, 34, 38, 23, 66; Webster’s Diet. “Appliance,” “Apparatus”; Standard Dictionary Id.; 59 Ind. 534; 55 Ind. 136; 98 Ind. 498; 107 Ind. 44; 21 Kan. 536; 119 Ind. 216; 35 W. Va. 458, 615; 2 Am. & Eng. Enc. Law, 530; 90 Ky. 53; 25 Hun, 461-62; 136 Ill. 478; 20 W. Va. 366.</p> <p>cited 1 High. Inj. 467; 39 W. Va. 498; 38 W. Va. 382; 101 U. S. 601; 2 Dill. Mnn. Corp. §§ 914-19; 20 W. Va. 360; 28 N. H. 61; 24 Mo. App. 250; Code, c. 45, ss. 34, 38, 39, 45, 57, 58,14, 20, 7; 119 Ind. 213-15; 80 Iowa, 121-24; 30 Mo. App. 456; 2 Am. & Eng. Enc. Law, 532, 534; 23 Court of Claims, 329; 64 N. II. 243; 38 Kan. 696; 77 Cal. 638; 21 Kan. 537; 35 W. Va. 615.</p>

<p>cited 17 W. Ya. 452, 469.</p> <p>Dulin & Hall cited 22 W. Ya. 308, 314; 34 W. Ya. 791; 17 W. Ya. 471; 12 W. Ya. 688, 694; 9 Leigh, 347; 6 Gratt. 673; Schouler, Dom. Bel. (4th Ed.) § 367; 61 Ind. 268; 3 Cush. 465; 36 Pa. St. 442; 2 W. Ya. 187, 306; 9 W. Ya. 474; 22 W. Ya. 254; 24 W. Ya. 2; 12 W. Ya. 526; 3 Am. & Eng. Ene. Law, 816, 817; 1 Bart. Law Pr. (2nd Ed.) 490; 1 Greenl. Ev. (15th Ed.) §§ 91, 484, 485; 18 Gratt. 624; 38 W. Ya. 456, 645, 736; 2 Am. & Eng. Enc. Law, 466 h; 28 W. Ya. 758, 766; 15 Gratt. 381; 34 W. Ya. 244; 35 W. Ya. 52; Acts 1870, c. 83, s. 1; Acts 1872-3, e. 123, s. 46; Code, c. 10, ss. 5,14,16, 18; Code, c. 45, s. 46; Code, c. 129, s. 10; Code, e. 130, ss. 5, 48.</p>

I. — Established fads do not support charge of negligence. — 54 Am. and Eng. R. Cases, 640 and citations there given. II.— Where injury results from voluntary exposure to danger, no right of recovery. — Patterson’s R. Acc., 272 and 273; 2 Beach on Law of R. §§ 860, 993 and 977; Beach on Con. Neg. 149; 11 S. E. R. 187; 2 Wood, R. L. § 303; 18 Am. St. R. 544; Deering on Neg. 92; 78 Ya. R. 645; 35 W. Ya. 389; Schouler’s Bailments and Carriers, § 652, p. 707 note 3; Beach on Con.

<p>cited Lackett, Insts. 499, 500; 2 Thomp. Trials & Juries, 1789,1795,1796; 40 W. Ya. 718; 20 W. Ya. 679, 681; Code, c. 181, s. 12; 4 W. Ya. 610; 76 Pa. St. 353, 354; 21 W. Ya. 741; 11 W. Ya. 76; 33 Gratt. 834; 8 Leigh, 726; 6 Gratt. 723; 3 Greenl. Ev. 114, 115, 118, 119, 120; 8 Am. & Eng. Enc. Law, 503, 505; 59 Ind. 70; 23 Tex. App. 401; 64 Ind. 443; 66 Ill. 344; 33 W. Ya. 140; 40 W. Ya. 726; 40 N. E. Rep. 1089; 122 Ill. 79; 18 Neb. 159; 67 Iowa, 274.</p> <p>cited 41 W. Va. 407; 156 U. S. 432; 18 Neb. 159; 109111. 65; 109 Alo. 189-195; 88 Ya. 47; 16 S. E. Rep. 100; 62 Iowa, 405,414; 95 Pa. St. 422; 74 Pa. St. 469; 81 Mo. 190; 16 Yt. 192; 70 Iowa, 268; 20 S. E. Rep. 251, 993; Code c. 131, s. 12; Code c. 159, s. 1; 23 W. Va. 309; 20 ~W. Ya. 679; Thomp. Jury Trials, § 2578; 4 Leigh, 478.</p>

<p>H. C. Duncan cited 21 W. Ya. 767, 770; 80 Ya. 18; 12 Iowa, 499-586; 5 Rand. 634.</p> <p>cited 26 W. Ya. 338.</p>

<p>1. Municipal Corporations — Streets and Roads.</p> <p>A municipal corporation is not an insurer against accidents upon its streets and roads. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets and roads are in a reasonably safe condition for travel in ordinary modes, with ordinary care; and whether so or not is a practical question to be determined in each ease by its particular circumstances.</p> <p>2. Municipal Corporations — Streets and Roads — Actionable Defects in Streets.</p> <p>While the liability of municipal corporations in such cases is in its nature absolute, that does not refer to the cause of action. That must exist before liability arises — such cause as raises the liability.</p> <p>3. Care in use of public roads enjoined.</p>

<p>Cited Code, c. 239, s. 7; 14 W. Va. 388; 12 W. Va. 98; 3 W. Va. 428; 22 W. Va. 159, 160; 13 Pa. St. 102, 103; 2 How. 338; 59 Pa. St. 290, 294; 52 Pa. St. 285; 57 Pa. St. 394, 395; 24 La. Ann. 482; 2 La. Ann. 503, 923, 895, 966; 19 La. Ann. 353; 11 Ohio St. 486, 13 Pa. St. 98; 11 S. & R. 430; 1 Otto, 638; 2 Wall. 210, 216; 18 How. 497, 502; 3 Ohio St. 494; 25 Miss. 232; 26 Miss. 332; 30 W. Va. 687; 78 Ga. 54; 2 Herm. Est. & Res. Jud. §§ 958, 968; 17 W. Va. 276, 313.</p> <p>cited Code, c 139, s. 7; 23 W. Va. 656, 664; 33 W. Va. 653; 35 W. Va. 705; 14 W. Va. 264, 809, 821; 6 W. Va. 168, 177, 178; 10 W. Va. 35, 41, 42; 11 W. Va. 386, 397; 17 W. Va. 901; 21 W. Va. 234, 247; 10 W. Va. 321; 30 Ark. 407; 19 Ela. 356; 70 Me. 57; 55 Miss. 232; 54 Barb. 455; 16 Pa. St. 357; 51 Wis. 232; 47 Am. Rep. 394; 82 N. Y. 29; 48 N. Y. 326; 9 Law. Rep. Ill; 73 Ala. 263; 12 Am. & Eng. Enc. Law, 224, n. 1; 22 W. Va. 165, 160.</p>

<p>1. PRINCIPAL AND AGENT — SET OFF — AGENT’S DEBT.</p> <p>If an agent sell property of his principal, and take an order on a third person in his own name, the order is the principal’s property; and, as it is an assignment, the principal may compel the third person to pay it, he having a fund in his hands; and the third person can not set off a debt of the agent due him against the order, or, even with the agent’s consent, apply it on such debt, though the third person knew nothing of the agency.</p> <p>2. Assignment — Order on Fund.</p> <p>An order on the whole or part of a fund is an assignment of the whole or part of such fund.</p> <p>S. Assignment — Order on Fund.</p> <p>To warrant an order on a fund, it must have either a real or potential existence in the hands of the drawee of the order.</p> <p>4. Assignment — Official Salary — Public Policy.</p> <p>An assignment by an assessor or other public officer of his salary or compensation for future service, or continuing or yet incomplete service, not yet payable, is contrary to public policy, and invalid.</p>

<p>1. Conspiracy — Evidence—Aiding and Abbeting.</p> <p>Under section 10, chapter 148, Code 1891, a jury may find the fact of combination and conspiracy from the fact that the parties were present, aiding and abetting in the commission of the offense charged, if satisfied of such conspiracy beyond a reasonable doubt. The presumption there authorized is one of law, but not conclusive, and may be rebutted.</p> <p>2. Conspiracy — Aiding and Abbetting — Constitutional Law.</p> <p>The provisions of said section that if the alleged conspirators are present, aiding and abetting in the commission of the act, it shall be presumed that the act was done in pursuance of conspiracy, is constitutional.</p> <p>3. Conspiracy — Instructions.</p> <p>An instruction that, if such conspiracy exist, it is immaterial which was the first aggressor — the conspirators or the injured party — is wrong.</p> <p>4. Instructions — Error.</p> <p>Where instructions given clearly and fairly lay down the law of the case, it is not error to refuse other instructions on the same subject. The court need not repeat instructions already substantially given.</p>

<p>CrimiNal Law — Change of Venue — Prejudice.</p> <p>The fact that a jury free from exception can be impaneled is not conclusive, on a motion for change of venue, that prejudice does not exist, endangering a fair trial, and will not justify the court in refusing to receive other evidence to support such motion.</p>

<p>1. Appeal — Writ op Error — Habeas Corpus.</p> <p>The remedy for mere irregularity in the process or mere error in the proceedings of courts of competent jurisdiction is by appeal or writ of error, not by habeas corpus; otherwise if the process or proceedings be void.</p> <p>2. Imprisonment — Habeas Corpus.</p> <p>Imprisonment under the process or order of a court of competent jurisdiction, however irregular or erroneous, not being void, is not illegal imprisonment, so as to-warrant discharge on habeas corpus.</p> <p>8. See points 2 and 3 in Ex parte Mooney, 26 W. Ya. 36.</p>

<p>1. Criminal Law — Return of SummoNS.</p> <p>A return of a summons to answer an indictment, directed to the sheriff-of a particular county, is not bad because it omits to state that it was served in that county.</p> <p>2. Cbiminal Law — Trial—Appearance.</p> <p>Though a summons upon an indictment requires the defendant to appear on a given date, it is not necessary that the case be tried that day, or that any note of it be made on the record that day.</p> <p>3. Criminal Law — Judgment by Default — Imprisonment.</p> <p>No judgment by default for imprisonment can be rendered under section 20, chapter 158, Code 1891, for any misdemeanor’ either under chapters 32 or 151, or for any other statutory misdemeanor, but there may be judgment for afine by default.</p> <p>4. Criminal Law — Appearance—Judgment of Imprisonment.</p> <p>A defendant may appear by counsel in any misdemeanor case, though it be punishable by imprisonment, but in no case can there be judgment of imprisonment without having the defendant present at its rendition.</p>

<p>cited Code 1891, p. 895; Code 1891, p. 896; 20 W. Ya. p. 680; Black. Com. Yol. 2. B. 4,148; 9 Am. & Eng. Ene. of Law, 541; 38 W. Ya. 417; 28 W. Ya. 297; 20 W. Ya. 738-740; Stephen’s Digest of the Law of Ev., pp. 113, 114; Code W. Ya. 1891; p. 946; 31 W. Ya. 505; 39 W. Ya. 415, 658; 37 W. Ya. 38, 380, 812; 41 W. Ya. 229.</p>

<p>1. Ballot Commissioners — Mandamus.</p> <p>A writ of mandamus does not lie to control or reverse the action of a court, board, or other inferior tribunal, or of an officer, where such action is one of discretion, judicial or quasi judicial; hut it does lie where such action is merely ministerial.</p> <p>2. Ballot Commissioners — Ministerial Acts.</p> <p>A ministerial act or duty is one which is to be performed under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to or exercise of the judgment of the one doing it upon the propriety of of the act’s being done.</p> <p>3. Ballot Commissioners — Preliminary Questions — Mandamus.</p> <p>The fact that the decision of a merely “preliminary question” may be of judicial nature will not forbid the use of mandamus.</p> <p>4. B vlldt C )MMtS3iONEES — Mandamus.</p> <p>Section 89, chapter 3, of the Code, as re-enacted in chapter 25, Acts 1893, in cases involving duties of ballot commissioners under said chapter, gives the writ of mandamus more scope than at common-law, rendering it a process to control them as to all actions ministerial or judicial.</p> <p>5. Ballot Commissioners — Political CONVENTIONS — Nominees for Public Office. ■</p> <p>In passing on the right of nominees for public office to appear on election ballots, this Court recognizes the right of the convention making them to judge of the election, qualification, and returns of its own members, and will not go back of its action to inquire as to the right or title of delegates admitted by it as members.</p>

<p>cited 29 W. Ya. 362; 36 W. Ya. 361; 33 W. Ya. 393; 14 W. Va. 211; 30 W. Ya. 586; 41 W. Ya. 191; 4 Gratt. 293; -1 Bev. Code 1819, c. 98, s. 3; 26 Gratt. 465; Code 1849, c. 144, s. 13; 86 Ya. 478; 13 Ya. Law, J. 229; 9 W. Ya. 206.</p> <p>cited Code, c. 74, s. 3; 29 W. Ya. 362; 30 W. Ya. 586; 17 Am. & Eng. Ene. Law, 1202-7; 2 Bates, Part. § 828; 2 Lindley, Part. §§ 598, 599, 601, 603; 8 How. 414; 22 Wall. 395; 2 Md. 15; 116 Ind. 317; 117 Ill. 477; 7 Ohio St. 179, 180; 4 Gratt. 293; 86 Ya. 478; 26 Gratt. 455, 465; 86 Ya. 478; Code 1819, c. 98, s. 3; 7 Harr. & J. 466; Code 1868, c. 99, s. 13; Const. Art. YI. s. 30; Code Mo. c. 19, §§ 656, 659, 660, 661, 3467; 103 Mo. 79; 46 Miss. 425; 10 W. Ya. 175; 121 U. S. 55, 558; 124 H. S. 295; 25 Gratt. 15; 9 W. Ya. 206; 3 Kent, Comm. 64, 65; Sto. Part. § 363-382; Code 1849, c. 144, s. 13; 3 Rob. Prae. 106, 108; 2 Bates, Part. § 825; 33 N. J. Eq. 72; Code, c. 99, s. 13; 2 Bev. Bep. 723, 724; 3 Leigh, 553; 7 Leigh, 601; 24 Ala. 628; 24 Mo. App. 445; 142 H. S. 295; 25 Gratt. 1-5; 10 W. Ya. 175.</p>

<p>cited Const. Art. VI. ss. 30, 39.</p> <p>cited Const. Art. VI. s. 39; Anderson Law Diet. “Statutes;” 1 Black. Comm. 87-91; 15 Am. & Eng. Enc. Law, 1008, 1009; Code, c. 47, s. 9; 39 W. Va. 179; 32 W. Va. 295; 32 Ind. 322; 46 Ind. 355; 50 Ind. 46; 92 Ind. 236; 107 Ind. 15; Cooley, Con. Lim. (6th Ed.) 201, 216, 152, note; 3 Am. & Eng. Enc. Law, 967, 968; 27 W. Va. 202; 16 Pick. 97; 16 Gray, 422, 423; 8 W. Va. 720, 612; 6 W. Va. 569.</p>

<p>cited 4 W. Ya. 180, 183, 184, 721; 21 W. Ya. 161; 10 W. Ya. 474; 35 W. Ya. 101.</p> <p>cited Code, c. 129, s. 10; Code, c. 131, s. 10; Code, c. 126, s. 4; Bart. Law Prac. (Ed. 1877) 152; 36 W. Ya. 454; 38 W. Va. 470; 33 W. Ya. 501.</p>

I. — Final judgments can not be changed after term is ended. — 24 W. Ya. 279, pt. 5 syl.; 39 W. Ya. 19; 41 W. Ya. 544 pt. 2 syl.; 76 Ya. 765; Freeman, Judg. § 96. II. — Jurisdiction.—Iiawe’s Jur. Courts, §§ 223, 225, note 7. III. — Deprivation of personal liberty without due process of law. —Const. Art. Ill, s. 10; 12 N. Y. 209. cited Code, c. 160, s. 4; 5 Gill (Md.) 90.

<p>cited Acts 1895, chapter 8, section 7; 21 W. Ya. 689; Cooly’s Const. Lim. 411; Iiopk. Ch. 2; 21 Pick. 191; 11 Mich. 139; Code, c. 112, s. 11; Code, c. 129, s. 3; 86 Ya. 410; Devlin, Deeds, ss. 476-7; 29 Gratt. 679; Freeman on Judg. §§ 136,144; 23 Am. Pep. 769; 39 W. Ya. 579; Code, c. 125, s. 35; 1 Bart. Ch. Prac. 417; Story, Eq. PL 688.</p> <p>cited 18 W. Ya. 185; 20 W. Ya. 536; 29 W. Ya. 471; 35 W. Ya. 536; Works “Courts and their Jurisdiction,” ch. 2, § 62; Am. & Eng. Enc. Law, Yol. 12, pp. 47 & 48; 11 W. Ya. 342; 18 Gratt. 83; 15 W. Ya. 805; 26 W. Ya. 710, 754; 27 W. Ya. 229, 639; Code, c. 125, s. 52, 53; 10 W. Ya. 645; 32 W. Ya. 45; 37 W. Ya. 201; 6 W. Ya. 417; 14 W. Ya. 1, 254; 21 W. Ya. 262, 698; 24 W. Ya. 525; 25 W. Ya. 416; 33 W. Va. 159, 197; 36 W. Ya. 454; 38 W. Ya. 669; 30 W. Va. 103; 32 W. Va. 447; Code, c. 134, s. 3; 11 W. Ya. 277; 7 W. Ya. 380.</p> <p>I.— W. G. Bennett assignor not interested. — 11 W. Va. 342; 14 W. Ya. 387; 18 W. Ya. 185.</p> <p>II.— W. G. Bennett not a party. — 18 W. Ya. 185; 20 W. Ya. 520; 35 W. Va. 520.</p> <p>III. — No continuance. — Code, p. 809, s. 52; 19 W. Ya. 187; 10 W. Va. 187; 14 W. Ya. 254; 32 W. Ya. 148; 32 W. Ya. 45; 37 W. Ya. 201.</p> <p>IV. — Jane Smith should have excepted to the report. — 14 W. Ya. 521; 22 W. Va.159.</p> <p>Y. — Jane Smith’s answer and replication. — 19 W. Ya. 176; 38 W. Ya. 616.</p> <p>YI. — Jane Smith and Joseph G. Smith not prejudiced. — 15 W. Ya. 801; 26 W. Ya. 745; 27 W. Ya. 229; 26 W. Va. 710; 36 W. Va. 681; Code, p. 809, s. 57.</p> <p>VII. — JEquity has jurisdiction. — 3 Pomeroy Eq. Jur. § 1415; 1 Nelise, 330; 5 Duer, 681; 1 E. D. Leatb, 414; 35 N. Y. 99; 6 J. J. March, 219; 11 Geo. 524; 5 Blaclcf. 561; 24 Ind. 257; 8 Patch. 469; 9 Pai. 386; 3 Pai. 311; 5 How. 396; 25 N. Y. 430.</p> <p>VIII. — Joseph C. Smith did not demur to the bill nor did Jane Smith. — Section 3, chapter 134, Code.</p> <p>IX. — No vendor’s lien retained by Jane Smith. — Code, c. 75, s. 1; 39 W. Ya. 570.</p>

<p>Husband and Wife — Divorce—Parol Trust.</p> <p>Where a husband makes an absolute conveyance of real estate to his wife directly or indirectly through the intervention of a trustee a court of equity will not entertain a bill by the husband, either before or after divorce granted such wife, which seeks to establish a parol trust as to such real estate in such wife for their mutual benefit.</p>

<p>cited 1 Lom. Dig. s. pp. 409, 468, 469; 4 Kents’ Comm. 197; 2B1. Comm. 175; Watk. Conv. 16; 1 Stepb. Comm. 290; 26 N. J. L. 525; 34 W. Ya. 466; 16 W. Ya. 282; 2 Dillon, Mun. Corp. (3d Ed.) §§ 1039-43, 1046; 2 Beach, Pub. Corp. § 1086 (and note); 1 Denio, 595; 25 W. Ya. 808; 26 W. Ya. 787; Gould on Waters (2d Ed.) §§ 263, 267, 269; 13 Gray, 601; 13 Allen, 291; 104 Mass. 13; 118 Mass. 599; 76 N. Y. 60, 63; 65 N. Y. 341; 10 Allen, 106; Const. Art. HI, s. 9; 16 W. Ya. 402; 38 W. Ya. 438; 34 W. Va. 457; 122 Iud. 344; 45 Iowa, 406; 2 Pac. Bep. 6; 32 Mo. 431; 17 W. Ya. 683; 14 W. Ya. 100; 35 W. Ya. 501; 3 Rand. 106; 33 W. Va. 417; 3 Hen. & Munf. 309.</p> <p>cited Lewis on Em. Dorn. §§ 103, 494, 496; 11 R. I. 520; 25 W. Ya. 226, 235; 28 Minn. 510; 59 Tex. 128; Acts 1883, p. 14; 15 W. Ya. 204; 2 Dill. Mun. Corp. §§ 103, 496, 968, 719, 1041 (note) 1077, 1037, 995; 2 Chit, on PI. (6th Am. Ed.) 777, s. p. 778; 38 W. Va. 439, 449; 25 W. Ya. 235; 4 Leigh, 408; 4 Rand. 547; 20 Gratt. 692; 2 Minor’s Inst. 370, 371; 1 Jar. on Wills (4th Am. Ed.) p. 677 (note 2); 1 Sedg. on Dam. (8th Ed.) §§ 68, 69, 72, 74; 3 Sedg. on Dam. §§ 932, 942; 3S W. Ya. 645 (18 S. E. Rep. 782); 37 W. Ya. 694 (18 S. E. Rep. 819); 41 W. Ya. 445; 38 W. Ya. 438, 4 syl. pt.; 39 W. Ya. 294; 1 Thomp. Jur. Tri. §§ 352, 353, 380; Lew. Em. Dom. §§ 434, 435; 1 Greenl. Ev, (12th Ed.) § 462; 34 W. Ya. 466; 25 W. Va. 233, 235; Acts 1883, p. 144; 28 Minn. 510; 2 Thomp. Jur. Tri. § 2388; 2 Chit. PI. pp. 777 (note la) 778 (note p.); Code, c. 125, ss. 9, 12; 1 Chit. PI. pp. 72, 202; 3 Chit. PI. p. 1058 (n. d. 1092); Code, c. 131, s.’ 8; 28 Am. & Eng. Enc. Law, p. 53, 54, 55 (note 3) 56 (note 7); 7 Law. Pi. Rem. and Pr. p. 5441; Abb. Tri. Ev. 723, 693; 9 Cran. 151; 17 Johns, p. 221; 21 S. E. Rep. 305; 10 8. E. Rep. 89; 38 W. Ya. 456.</p>

I. — Chapter 125 concerns Rules and Pleadings only. A defendant has clear right to make defense, unless debarred by statute, and section 46, chapter 125, so far as it cuts off defense, must be strictly construed. — 37 W. Va. 599. II. — The object of that statute is to prevent a defense to the matter of the declaration, unless the defendant swears he has a defense. — 38 W. Va. 632-3. III. — Construction must regard intent.

<p>1. PRINCIPAL AND SURETY — SUBROGATION—LIENS AGAINST PRINCIPAL Debtor.</p> <p>A surety can not have subrogation until he has actually paid the debt in full; but, on part payment, even without that, he may, when the debt is due, sue in equity both the creditor and principal debtor, to compel such debtor to pay the debt out of his own property in exoneration of the surety, and may have enforced for his relief any liens which the creditor has on the estate of his principal. If the surety has paid part, he may in such suit have subrogation to the creditor’s liens after satisfaction out of the • debtor’s property of the balance due the creditor.</p> <p>2. Principal and Surety — Subrogation:.</p> <p>A surety in bonds given by a debtor for rent of his own land, rented by him under decree to pay liens binding the land, and paying the same for his principal, may be substituted to such liens against the land. Such renting does not discharge the liens, as between the principal debtor and his surety.</p>

<p>cited 28 W. Ya. 732; 34 W. Ya. 692; 22 S. E. Rep. 833; 37 W. Ya. 606, 180, 524; 41 W. Ya. 620; 35 W. Ya. 389; 17 W. Ya. 706; 27 W. Ya. 145, 155, 163; 31 W. Ya. 120; 29 W. Ya. 98; 146; IT. S; 513; 149 IT. S. 368; 34 W. Ya. 681; 38 W. Ya. 206; 41 W. Ya. 293; 40 W. Ya. 188.</p> <p>cited 34 W. Ya. 681; 35 W. Ya. 389; 37 W. Ya. 180.</p>

<p>cited 4 S. E. R. 621, 622; 10 S. E. R. 572, 573; Code c. 130 ss. 23, 22; 27 W. Va. 451; Acts 1891, c. 109; 31 W. Va. 94; 37 W. Va. 242; 40 W. Va. 431; Acts 1893, c. 3; 23 S. E. R. 710; Sedg. Stat. 268 (note) 270-71 (note) 274; 37 W. Ya. 623, 396; 7 S. E. R. 340; 23 S. E. R. 778; 33 W. Ya. 236.</p> <p>cited, Story’s Eq. Jur, § 767; 1 Green]. Ev. § 334; Browne, Statute of Frauds, § 263; Story’s Eq. Plead. § 279; Fry, Specific Performance, 105; 22 Am. & Eng. Eney. 981; 105 Ind. 522; 20 Atl. R. 369 (N. J. 1890); 3 W. Ya. 23; 20 Id. 403; 31 Id. 9; 103 Ills. 249; 113 Id. 186; 128 U. S. 438; 9 S. C. R. 109; 45 Hun, 401; 3 Wend. 367; 45 Mo. 80; 78 Ya. 700; 70 Gal. 553; 38 Md. 299; 4 Id. 459; 31 Mich. 380; 127 IT. S. 668; 8 S. O. R. 1355; 26 Gratt. 312, 313; 27 W. Ya. 451; 119 Ills. 549; 81 Id. 165; 91 Id. 187; 102 Id. 280.</p>

<p>cited Code 1869, c. 105; Acts 1882, c. 95; Code 1891, c. 105; Acts 1893, c. 24; Suth. Stat. Const. §§ 137, 165, 394; Bish. Writ. Law, § 249; 37 W. Ya. 762, 777; 24 W. Ya. 561; Acts 1885, c. 46, s. 5; 22 W. Ya. 404; Code 1869, c. 31, s; 34; Acts 1863, p. 157; Acts 1875, c. 54, s. 23; Acts 1879, c. 73, s. 23; Acts 1881, c. 12, s. 23; Acts 1885, c. 16, s. 23; Acts 1869, p. 90; Acts 1872-3, c. 117, s. 39; Acts 1882, c. 130, s. 89; 2 Iierm. Est. §§ 752, 754, 759; 2 Exch. 654; 51 Md. 590, 591; 1 Blackw. Tax Tit. §§ 312, 316, 320; Code, c. 31, s. 39; 40 W. Ya. 521.</p>

<p>cited 33 W. Ya. 229; 35 W. Ya. 385; 14 Gratt. 302; 28 Am. Dec. 593; Sedgwick on Damages (6th Ed.) 466 & n.; 15 AY. Ya. 629; 33 W. Ya. 407.</p> <p>cited 2 Benj. Sales §§ 966 (note 24) 1042, 1305, 1023 (note 12); 33 W. Ya. 86; Code, c. 50, s. 8; Morse, Arb. 91; 1 Am. & Eng. Enc. Law, 664, 665, 667; 22 S. E. Rep. 165.</p>

<p>Equity Pleading — Unsigned Bill — Demurrer.</p> <p>A paper writing, purporting-to be a bill in chancery, original or amended, not signed by any one, is demurrable, and should be stricken from the record, unless properly amended by leave of the court.</p>

<p>Res Adjudicata — Estoppel.</p> <p>A former adjudication, in a suit brought for that purpose alone, that the language, in a conveyance of real estate, “The said grantors to have their life maintenance out of the following described land or its proceeds,” does not create a specific lien or charge on the land, will not estop the grantors in such conveyance from setting up a personal claim for such maintenance against the grantees or their estates, when such question was in no wise involved in or adjudicated in such former suit.</p>

I. — The interest of Susan Findley in proceeds of sale was personalty and passed to her administrator, and not to plaintiffs as heirs. — Code, c. 86, ss. 2, 3; Story’s Eq. § 1212; 1 Lo-max, Ex’rs c. 1, § 1, p. 220, sub. sec. 7, and p. 223, sub. sec. 8; lb. c. 2, § 1, p. 229, sub. sec. 1; 1 Rand. 313. II. — Martin and Kunst if liable at all are only liable as additional sureties. — 16 W. Va. 167. III. — Only parties in interest can sue.

<p>cited 26 W. Ya. 378,379.</p> <p>cited Sto. Eq. PI. §§ 389, etc.; Code, c. 125, s. 35.</p>

<p>SpecificPerformance — Discovery—Affirmative Relief— Special REPLICATION.</p> <p>The plaintiff railway company files a bill for the specific performance of a verbal agreement made by defendants’ ancestor to sell and convey in fee a certain strip of land for a railroad track, and alleges that the purchase money was paid, possession was taken, the track was made, and is now used, praying for a conveyance. One defendant answers, admitting the sale, the payment of the purchase money, the taking of possession, and the present occupancy thereof by plaintiff, and defendant claims no right therein except an undergrade private crossing, and defendant alleges in his answer, by way of cross-bill, that defendants’ ancestor had executed to the S. V. R’y Co., plaintiff’s vendor, a deed of conveyance to said land, and delivered the same to B., the vice president of said ¡8. V. R’y Co., and a director in the plaintiff company, but that his ancestor had excepted from said conveyance, and had expressly reserved therein, to himself forever, said right of way, and that said B. was living, and a resident of an adjoining county in the state of Virginia, and prays the court to require the plaintiff to produce this deed, thus traced into the hands of one of its officers, or to require said officer to account for it. Such new matter constitutes a claim for affirmative relief in this suit. Such deed is necessary as a muniment of title to defendant’s right of way, and the production thereof prayed for is necessary in aid of defendant’s defense to the original bill, and there is no other plain, adequate, and complete remedy for giving full and complete relief, and thus ending the litigation. If the plaintiff had failed or refused to file a special reply in writing to such answer by way of cross-bill, the statute required the allegations to be taken as true, and no proof thereof to be required. But plaintiff tendered to be filed such special reply iu writing, but the court refused to permit the same to be filed, and dissolved the injunction. Such refusal to permit the special reply to be filed was erroneous, and consequently it was error to dissolve the injunction.</p>

I. — The word “dollars” may be supplied by court in a will where same was manifestly inadvertently omitted by testator. —Beach, Wills, p. 526, § 322, note 2, Pony series; lb. § 321. II. — “M,. L. Church Conference Seminary” as such has power under West Virginia statutes to take legacy. — 29 W. Ya. 169, ss. 4 and 5 of syl.; Code W. Ya. c. 57, ss. 3 and 6. III. — “Missionary Society M. JE.

<p>Contempt — Injunction—Jurisdiction.</p> <p>A motion to dissolve an injunction being overruled, an appeal and supersedeas is taken to the order overruling the injunction. The court awarding the injunction, not the supreme court, has jurisdiction of a proceeding for contempt for its violation.</p>

<p>cited 10 W. Ya. 470; 22 How. 350; 56 N. W. Rep. 727; 18 Atl. Rep. 331; 14 Atl. Rep. 741; 1 N. W. Rep. 930; 3 N. W. Rep. 944; 24 Fed. Rep. 221; 37 W. Ya. 666; 12 R. I. 270; 95 Ü. S. 90; 17 Atl. Rep. 42; 56 N. W. Rep. 727; 99 Mass. 179; 108 Mass. 509; 2 Micb. 555; 41 Mich. 196; 42 Mich. 329; 7 Minn. 446; 11 Minn. 410; 41 N. H. 434; 60 Mo. 297; 45 Mo. 502; 35 N. J. Law, 517; 63 N. C. 191; 82 N. C. 313; 6 R. I. 505; 25 Fed. Rep. 221.</p> <p>cited 10 W. Ya. 470; 41 W. Ya. 787.</p>

<p>E. L. Berkshire and G-. C. Sturgiss cited 10 W. Ya. 214; 12 W. Va. 298; 5 Leigh, 305; 4 Gratt. 187; 2 Bart. Ch. Prac. 932, 1140, 1144; 5 Gratt. 272, 282; 16 Gratt. 355.</p> <p>cited, 37 W. Ya. 201; 2 Bart. Gh. Prac. 1142; 16 Gratt. 355; 7 N. H. 485; 5 Gratt. 272, 280; 2 Leigh, 261; 2 Arch. Prac. 76, 237; 1 Call, 147; 3 Munf. 229; 13 W. Ya. 231; 33 W. Ya. 152; 32 W. Ya. 152, 335; 25 W. Va. 692; 20 W. Ya. 223; 26 W. Ya. 583; 2 Munf. 272; 2 Ind. 239; 18 Cal. 275; 23 Ala. 296; 7 W. Ya. 447.</p>

<p>INSURANCE Policies — Proofs of Loss — Burden of Proof.</p> <p>The burden of proving compliance with the necessary requirements of an insurance policy as to proofs of loss, or the waiver of such compliance on the part of the company, is on the insured; and, if he fails to establish the same by a preponderance of evidence, his action must fail.</p>

<p>Principal and Agent — Commercial Law — Traveling Salesmen — Collections.</p> <p>It is a well established rule of commercial law that traveling salesmen, merely taking orders for, but not delivering, goods, have no implied authority to receive payment or make collections. Nor can such salesmen abrogate this rule by falsely holding themselves out as members of the firm they represent. The person who deals with them on such false representations, and pays money to them by reason thereof, does so at his own risk and peril, and must bear the loss occasioned thereby.</p>

<p>i. Equity Jurisdiction —InjunctioN —Questions Involving Title.</p> <p>Equity has jurisdiction, by injunction, to prevent acts of irreparable injury to land, even though there is controversy as to title between the parties, and, having jurisdiction on that ground will go on to give full relief, though in so doing it be necessary to decide between two adverse titles.</p> <p>2. Oil and Gas — Injunction—Boring eor Oil and Gas.</p> <p>The unlawful extraction of petroleum oil or gas from landi they being part of the land, is an act of irreparable injury. Equity will enjoin it.</p> <p>3. Preliminary InjunctioN — Final Decree.</p> <p>A preliminary injunction must not do what can only be done after full hearing by final decree, as by changing the possession of realty, or depriving one in possession of its benefits, in any other respect than as to the wrongful act proper to be enjoined; the proper purpose of such injunction being to preserve the present status until a full hearing on the merits shall be had. An injunction as to so much of it as is excessive is void, and ought to be modified on motion.</p> <p>4. Oil and Gas Leases — Forfeiture.</p> <p>A lease for oil and gas contains the clause, “To have and to hold the said premises unto said party of the second part during and until the full term of two years, and as much longer as oil or gas is found in paying quantities thereon, or the rental paid thereon,” and provides for a rent of one-eighth of the oil, and two hundred and fifty dollars per year for gas, and has a clause reading ‘‘Operations shall be commenced and one well com-pleled within one month, and, in case of failure to complete one well within such time, the party of the second part agrees to pay the parties of the first part, for such delay, fifteen dollars per month in advance after said time for completing such well as above specified, and the parties of the first part agree to accept such sum as a full consideration and payment for such delay until one well shall be completed; and a failure to complete one well or to make such payment for such delay is to render this lease null and void at the option of the lessor.” The lessee, having failed to begin operations within the two years, has no right to continue the lease by payment of fifteen dollars per month, but the lease is ended.</p> <p>5. Oil and Gas Leases — Constbuction of Contbacts.</p> <p>The words “or” and “and” in a contract will be changed and read as “and” and “or” where it is plain they were so intended,</p> <p>6. Estoppel in pais.</p> <p>To bind one by estoppel in pais from statement or conduct, he must have stated, or led another to believe in, something as a fact, and that other must be ignorant of the contrary, and must rely on it, and act to his injury differently from what he would have done but for such statement or conduct.</p>

<p>cited Code, c. 87, s. 22; Code, c. 180, s. 23; 1 Bart. Chy. Prac. 119; 23 W. Ya. 108; 21 W. Ya. 469; 17 Gratt. 96; 26 W. Ya. 207; 14 W. Ya. 88; 11 S. E. Rep. 548, 552; 17 S. E. Rep. 701, 704.</p> <p>cited 21 W. Va. 469; 23 W. Ya. 100; 17 Gratt. 96; 1 Bart. Chy. Pr. 119; 13 Pet. 381; Code, c. 104, s. 16; ‘16 N. J. Eq.- 240-2; 12 Am. & Eng. Enc. Law, 554; 2Yerg. (Tenn.)193; 152 IT. S. Sup. C. Rep. 412; 3 Leigh, 376; 26 W. Ya. 175; 21 Gratt. 712; Code, c. 130, s. 23; 11 W. Ya. 562; 31 W. Ya. 659; 28 W. Ya. 412; 11 S. E. Rep. 542; 17 S. E. Rep. 701; 3 L. R. A. 599; 95 N. Y. 316.</p>

<p>1. DIVORCE — Alimony.</p> <p>The question as to the amount of alimony pendente lite which shall be allowed the wife in a suit brought against her by her husband for divorce is one addressed to the sound discretion of the court under all the circumstances of the ease, and the .condition of the parties must also be taken into consideration.</p> <p>2. Divorce — Alimony—Fees of Counsel.</p> <p>Fees for prosecuting an appeal in the supreme court from a decree against the wife in the circuit court will not be allowed distinctively as alimony pendente lite, but the court, in its discretion, will allow a reasonable amount to enable her to carry on her suit.</p>

<p>1. Equity Practice — Parties.</p> <p>It is no longer the practice to join, as defendants in a suit in equity, for the purpose of discovery and costs against them, those who are not proper parties on other grounds.</p> <p>2. CANCELLATION OF DEED — PARTIES—NOTARY PUBLIC.</p> <p>A party who is charged in the bill with participation in the forgery of a deed to land, and of taking and certifying a false and fraudulent certificate, as a notary public, of the acknowledgment of such deed, for the purpose of cheating and defrauding the true owners, to the interest and advantage of such notary public, and the object of the bill is to have such deed delivered up to be canceled, such notary, in his individual capacity, is a proper party defendant, on'his demurrer to the bill.</p> <p>3. Infant Defendant — Guardian Ad Litem.</p> <p>It is the duty of the court to appoint or see to the appointment of a proper guardian ad litem to every infant defendant in any pending'.suit, whether such infant defendant be married or single, as soon as such infancy appears.</p> <p>4. Infant Defendant — Answer of Guardian Ad Litem.</p> <p>And as it is the duty of such guardian to manage the case of the infant, and see to his interest, he must indicate his acceptance of the trust, by filing, adopting, or causing to be filed a proper answer.</p> <p>5. Infant Defendant — Guardian Ad Litem — Error.</p> <p>It is'error to decree against an infant defendant without appointing a'guardian ad litem, who has shown his acceptance of the appointment by filing such answer; and for such omission a decree against an infant defendant is voidable, and will be reversed upon appeal.</p> <p>6. Issue Out of Chancery — Conflict of Evidence — Sound Discretion.</p> <p>In'a pending chancery case, in which there is such a conflict in the evidence as, in the opinion of the court, to render it proper such court may direct an issue thereon to be tried in such court or in]any other circuit court. Such discretion must, in the nature of its exercise, be a wide one, yet it is a sound discretion, the exercise of which is reviewable.</p>

<p>1. Husband and Wife — Partition.</p> <p>Where a wife becomes interested as a coparcener in a tract oí land, inheriting the same from her deceased father, her husband, if he is entitled to curtesy by reason of issue of the marriage, can make a valid partition of the land with the other heirs of the decedent, either by written agreement, or by parol, or partly by writing and partly by parol.</p> <p>2. Husband and Wife — Partition—Defective Acknowledgment.</p> <p>If such husband and his wife attempt to make a deed for the portion of land so partitioned to a third party, which is void as to the wife by reason of a defective certificate of acknowledgment, the party to whom sai l conveyance is made will only take the life estate of the husband, and the wife or those claiming under her will have no right of entry until the death of said husband.</p> <p>3. Husband and Wife — Partition—Statute of Limitations.</p> <p>Where a wife is seised in fee of land not separate estate, and her husband makes a deed purporting to convey the fee, but void as to the wife, such deed vests in the grantee a life estate, either for the joint lives of the husband and wife, or by the cur-tesy according to the facts, and the statute of limitations does not begin to run against the wife’s reversion until the termination of said life estate.</p>

I — Sections 81 and 82 of Charter of City, Acts of 1889, pp. 48 and 49. II. — Municipal action and conditions precedent must be observed. — Cooley on Taxation (2nd Ed.) 656-7-8 9, notes and cases cited. 2 Dillion Municipal Corp. (Fourth. Ed.) Section 811. III. — Municipal corporations must strictly comply with ordinances. — 6 N. Y. 92.

<p>cited 1 Wash. 125; 1 Eob. (Va.) 148; 12 W. Va. 247; 16 W. Va. 448; 22 W. Va. 2; 24 Gratt. 368; 1 Call. 187; 29 Gratt. 27; 18 Am. St. Eep. 795; 21 Am. St. Eep. 289; 4 Am. St. Eep. 707, 708; 15 Am. St. Eep. 584; 47 Am. St. Eep. 622; 16 W. Va. 280, syl. pt. 4; Code, c. 31, ss. 39, 40.</p> <p>cited Code 1868, c. 74, s. 1; Code 1868, c. 72, ss. 1, 2; Code, c. 71, s. 1; Code, c. 74, s. 5; Code, c. 139, ss. 5, 6; 12 W. Va. 246; 15 W. Va. 567; 16 W. Va. 443; 18 W. Va. 695; 21 W. Va. 469, syl. pt. 1; 22 W. Va. 1,585; 33 W. Va. 168; 23 W. Va. 594, syl. pt. 1; 27 W. Va. 443, 447; 10 W. Va. 87, 321; 15 W. Va. 512; 17 W. Va. 717; 24 W. Va. 238; 39 W. Va. 561, syl. pt. 6; 2 Devlin, Deeds, § 1134.</p>

<p>1. CONSTITUTIONAL LAW — MIXED SCHOOLS.</p> <p>Section 8 of article XIE of the Constitution of this state, which provides that “white and colored persons shall not be taught in the same school," is not repugnant to section 1 of the fourteenth amendment to the Constitution of the United States.</p> <p>2 Mandamus — Writ op Error — Circuit Court.</p> <p>Where the circuit court refuses to award a rule on a petition paying a mandamus, the proper remedy is not by writ of error, but by direct application to this Court for such rule.</p>

<p>1. Appealable Orders.</p> <p>An order overruling a demurrer to a bill is not appealable.</p> <p>2. Injunctions — Conditions of Granting Injunction — Confession of Judgment.</p> <p>There may be an injunction to restrain proceedings at law. Whether a confession of judgment at law, as a condition of granting an injunction, will be required, is in the sound discretion of the court. Such confession should be required to be made “subject to be dealt with as the court shall direct.”</p> <p>3. Concurrent Jurisdiction.</p> <p>In cases of concurrent jurisdiction, the court first taking jurisdiction of the subject has preference, and may go on to final action, and dispose of the property, and its action will be conclusive, and pass title.</p> <p>4. CREDITORS Bill — Sale under Deed op Trust.</p> <p>When a suit by a judgment creditor is brought to enforce his lien on land, and that of other lienors, under section 7, chapter 139, Code, and the creditor and trustee under a deed of trust are formal parties, pending this suit a sale can not be made under the deed of trust.</p> <p>5. Parties to Suits — Restrictions on Parties to Suits.</p> <p>When a person is made a party to a suit as to his rights involved therein, he must await the action of the court, and can not, by independent proceedings outside of the suit, defeat such action.</p>

<p>1. Negotiable Instruments — Indorsers.</p> <p>Indorsers of a negotiable note, though it be for accommodation of the maker, while all are responsible to its holder, are responsible, as between themselves, in the order of their indorsement, in the absence of an agreement to be bound jointly and equally. Therefore an indorser is liable to a subsequent indorser paying it, but not to a prior one.</p> <p>2. Negotiable Instruments — Indorsers—Contribution.</p> <p>An indorser on a negotiable note is not liable for contribution —like a surety on non-negotiable paper — to a prior indorser, without an agreement to be equally bound.</p> <p>3. Equity Pleading.</p> <p>A bill not alleging ground for relief will be dismissed at the hearing, though there was no demurrer.</p> <p>4. Negotiable Instruments — Liability ' of Parties to Negotiable Instruments.</p> <p>Section 11, chapter 99, Code, relates to remedy only, and does not create liability by making liable parties to negotiable instruments not liable under the law relating to such instruments.</p>

<p>1. Deed op Trust — Preferences in Deed op Trust.</p> <p>In a deed of trust for the benefit of all creditors, any preference must be plainly expressed.</p> <p>2. Attachment — Partnership—Non-Resident Partner.</p> <p>The non-residence of one partner will not be ground for attachment against the firm, to the prejudice of social creditors.</p> <p>3. Attachment — Partnership—Non-Resident Partner.</p> <p>The material facts stated in an affidavit must be such as to show the ground of attachment to which they relate. A mere statement that a debtor has conveyed or attempted to convey his property with intent to defraud is not enough. There must be facts and circumstances given to sustain the charge of fraud.</p> <p>4. Attaohment — Affidavit—'Matbirial Facts.</p> <p>A statement of material facts in an affidavit for attachment must be certain and definite, in a legal point of view, so as to inform those entitled to defend the attachment what particular facts they must repel.</p> <p>5. Attachment — Supplemental Affidavit — Material Facts.</p> <p>The provision in section 1, chapter 106, Code, allowing time to file supplemental affidavit of other material facts to show ground of attachment, is remedial, and should be liberally construed. It should be applied with the same liberality as the law of amendment of pleadings.</p> <p>6. Attachment — Amendment op Affidavit.</p> <p>Can such amendment be made to the prejudice of a second lien by deed of trust or attachment? Court equally divided on this question.</p>

<p>1. Process — Service ox Corporations — -Justice’s Courts— Amendment of Return.</p> <p>Return of service of a summons from a justice’s court, defective in failing to show that service on a corporation’s agent was made in the county of his residence, may be amended, either before the justice or in the circuit court upon an appeal.</p> <p>2. Process — Amendment oe Return.</p> <p>Officers are allowed, with liberality, to amend their returns of service of process.</p>

<p>1. CONTRACT OF SALE — OPTIONS.</p> <p>The following instrument held to be, not an option, but an unconditional and absolute contract of sale: “Exhibit No. 3. I have this day sold to J. E. Watson the coal under my farm on West Pork river, adjoining lands of S. L. and M. T. Vincent, W. S. Sandy’s heirs, and others, containing about 80 acres, reserving therefrom one acre, and where I may elect. Said Watson is to pay one-fourth down on the first day of May, 1890, when I am to make deed for said coal as per option made on the 25th of September, 1888. It is further agreed that I am to have interest on all said purchase money from 1st day November, 1889. The deferred payments in one, two, and three years from 1st day May, 1890. J. A. Fleming.”</p> <p>2. Contract of Sale — Signature to Contract of Sale.</p> <p>Such a contract in writing, to be binding on the seller of real estate, is not required to be signed by the buyer who has accepted it; for it is signed by the vendor, the party who made the written contract of sale, the pajrty sought to be charged thereby, and no writing signed by the vendee is required to prove the vendee’s obligation to pay the consideration price, or to make it binding upon him. See chapter 98 of the Code of 1891 (page 715).</p>

<p>1. Bill in Equity— Demurrer — Amendment of Bill IN Equity.</p> <p>If a bill in chancery sets out several claims for equitable relief, some of which are inequitable, and others deficient for want of sufficient allegations, on demurrer thereto the bill should be dismissed as to the inequitable claims, and allowed to be amended as to such as are apparently equitable, but defectively stated.</p> <p>2. Parties — Defendants not Served — Non-Appearance by Defendant — Petition.</p> <p>It is error to decree on a petition filed by permission of the court, making numerous parties, both adults and infants, defendants thereto, on whom neither service of process is had, nor any appearance in any manner by them to such petition shown by the record.</p>

<p>1. Survivorship — Action by Co-Tenants — Death of Party.</p> <p>Where two or more co-tenants bring an action of trespass on the case to recover damages caused by the action of the defendant in constructing a dam and thereby overflowing their property, and one of the plaintiffs dies, the suit survives as to the other plaintiffs, and may be proceeded in by them.</p> <p>2. Measure of Damages — Instruction.</p> <p>In such a suit it is proper for the court to instruct the jury that they will find, in assessing damages, if they believe from the evidence any were inflicted upon the property in question by the defendant, only such difference in the value of the said property at the time said damages were inflicted and the value of the said property before the said damage was so done.</p> <p>3. Abatement — Death of Party — Error.</p> <p>In such a suit, if one of the parties plaintiff dies pending the suit the same should abate as to such deceased party; and it is error, upon the appointment of an administrator for the estate of such deceased party, to allow the suit to proceed in the name of such administrator and the survivors at the same time.</p>

<p>1. Compensatory Damages — Actual Loss.</p> <p>Compensatory damages are such as measure the actual loss, and are given as amends therefor.</p> <p>2. Compensatory Damages — Willful Negligence.</p> <p>Beyond such compensatory damages, the jury are not at liberty to go, unless there be shown some evil motive on the part of the defendant or his agents, as indicated by reckless indifference to the rights of the plaintiff, or other wanton or willful neglect of duty causing the mischief.</p> <p>3. JUD GMENTS — INTEREST—CONTRACTS—TOBTS.</p> <p>In judgments on contracts, the judgment must bear interest from the date of the verdict. See section 14, chapter 131, Code. But in other cases, as on verdict in a case of tort, the judgment must bear interest from the date thereof. See section 18, chapter 131, Code.</p> <p>4. Demurrer to Evidence — Jury—Judge.</p> <p>Upon a demurrer to the evidence, it is not for the jury, but for the court, to say whether the accident could have been avoided by the use of ordinary care on the part of the defendant company’s servants.</p> <p>5. Demurrer to Evidence — Waiver oe Evidence — Inferences of Fact.</p> <p>Upon a demurrer to evidence, the demurrant in this state is not held to waive any of his competent evidence; but, where it conflicts with that of the demurree, it will be regarded as overcome, unless it manifestly appears to be clearly and decidedly preponderant. He waives all objection to the credit of the testimony demurred to, admits all inferences of fact that may be fairly deduced from the evidence, but only such facts as are fairly deducible, and refers it to the court to deduce such fair inferences.</p> <p>6. Railroads — Live Stock — Burden of Proof — Prima Facie Negligence.</p> <p>In the ease of injury by the servants of a railroad company to stock straying upon its track, the burden of proof to make out a case of prima facie negligence is on the plaintiff. If he fails to do this upon the whole evidence, or demurrer to the evidence by the defendant, judgment should be given for the defendant.</p>

<p>1. Tax Sales — Surplus prom Tax Sales — Statutory LimitaTION.</p> <p>The words “within two years thereafter,” in section 6, art. XIII of the Constitution, and section 16, chapter 105, of the Code, are construed to mean two years after the sale, and not the decree directing the sale.</p> <p>2. Judicial Sales — Decree op Confirmations — Inchoate Sale.</p> <p>A judicial sale is not consummated and conclusive until a decree of confirmation transferring or directing the transfer of the legal title by proper conveyance, until which time it is a mere inchoate sale, liable to be defeated, and the title remains in the former owner.</p> <p>3. Tax Sales — Statutory Limitation.</p> <p>“Two years thereafter” means two years from the time the sale is fully consummated.</p>

<p>cited Pars. Conts. (4th Ed.) § 886; 10 Am. & Eng. Enc. Law, 143, 144, 145; 95 Ind. 387; Benj. Sales (3d Am. Ed.) § 657; 56 Ind. 575; 27 Wis. 152; 31 Miss. 91; 1 Sprague, 404; 16 Ill. 69; 8 Blacf. 317; 11 Ohio St. 48; 21 N. Y. 552; L. R. 3 O. B. 197; 11 Ired. L. 166; 39 Micb. 557, 561; 67 N. Y. 304; 58 Cal. 234; 4 W. Ya. 451; 7 W. Ya. 571.</p> <p>cited 39 W. Ya. 544; 29 N. Y. 86; 18 W. Ya. 586, 771; 35 Ill. 102; 85 Am. Dec. 347; 1 H. & M. 93, 372; 3 Lee, 567; 8 W. Ya. 95; 27 W. Ya. 555, 639; 28 W. Ya. 715; 31 W. Ya. 137, 566; 40 W. Ya. 15; 35 W. Ya. 720; 36 W. Ya. 466; 9 Gratt. 302; 19 W. Ya. 366; Acts 1893, c. 3, s. 15; Coke, Litt. 112a; 1 Black. Comm. 442; 21 W. Ya. 658; 29 W. Ya. 385; 38 W. Ya. 404; 4 W. Ya. 451; 7 W. Ya. 571.</p>

I. — Depositions can not be retaken without leave of Court first had. —IDan. Ch. Prac. (Cooper) page 952ef seg./lBart. Law Practice (2nd Ed.) 448-449; 4 Minor’s Insts. 846-847; 3 G-reenl. Ev. 307; 82 Ya. 831; 80 Ya. 58; 17 Gratt. 188. II. — Instructions based upon an hypothesis, which there is no evidence tending to support, is improper. — 27 W. Ya. 139; 7 W. Ya. 715; 12 W. Ya. 699 (syl. 5.); 14 W. Ya. 708 (syl. 3 and 4); 18 W. Ya. 767 (syl. 2); 21 W. Ya. 394.

I.— The several subdivisions of the state may be classified and laws enacted which will affect differently the several classes and thus be in a 'sense local; and yet such laws are general within the meaning of the Constitution. — 11 Vroom, 123 (40 N. J. L.); 29 Am. Rep. 210; 42 N. J. L. 435; 39 Iowa, 112; 84 Cal. 226; 77 Pa. St. 338; 39 Fed. Rep. 651; 73 Cal. 310; 97 Mo. 543; 62 Ind. 159; Suth. St. Con. § 127; 75 N. Y. 346; 92 N. Y. 4; 107 N. Y. 593; 1 Am.

<p>cited 23 Gratt. 504.</p> <p>cited 14 W. Ya. 561; 28 W. Ya. 35; 35 W. Ya. 560; 36 W. Ya. 451; Code, c. 130, s. 5a; 1 Q-reenl. Ev. § 498.</p>

<p>cited Code, c. 10, ss. 1, 2, 3, 4; 9 Am. & Eng. Enc. Law', 141; Code, c. 83; 2 Brandt, Surety & Guar. 796; 3 Wait, Act. & Def. 261; 31 Ill. App. 483; 43 Mo. App. 16; 32 W. Ya. 529; 16 W. Va. 167; 33 W. Ya. 737; Code, c. 82, ss. 10, 11, 14.</p> <p>cited Code, e. 82, ss. 14,100; Code, c. 83, ss. 2,15; Code, c. 87, ss. 9,10; Code, c. 118, s. 1; Bart. Ch. Prac. 696; 1 Min. Inst. 505; Sands, Suit Eq. 539, 542; 16 W. Ya. 167, 205, 206; 33 W. Ya. 737; 32 W. Ya. 216, syl. pt. 5.</p>

<p>cited Code, c. 74, ss. 1, 2; 4 W. Ya. 56; 28 W. Ya. 651; 38 W. Ya. 248, 747, 753; 1 How. 316; 2 How. 611; 3 Bing. 329; 11 Eng. C. L. 126; 3 M. & W. 106; 4 Leigh, 519, 522; 9 Leigh, 381, 385; 1 Rich. 210; 1 Far. Con. (Ed. 1886) p. 434 (note u.); Sto. Con. § 466; 6 Johns Cb. Rep. 290; 60 Ala. 545; 8 Ala. 694; 2 Whar. 302; Bump. Er. Conv. 55; 13 W. Ya. 29, 730; 32 W. Ya. 203, 447; 24 W. Ya. 199, 405; 29 W. Ya. 441; 30 W. Ya. 554-6; 35 W. Ya. 730.</p> <p>cited 8 Am. & Eng. Ene. Law, p. 840; 41 W. Ya. 376; 36 W. Ya. 2, 77; 22 W. Ya. 356, Syl.pt. 9; 2 Big. Er. pp. 50, 206; 81 Ya. 661; 76 Ind. 195; 129 U. S. 465; 13 W. Ya. 730; 35 W. Ya. 634; 34 Kan. 23.</p>

<p>Fees of Counsel — Contingent Fees.</p> <p>A client under a contract whereby be agrees to pay an attorney for the prosecution of an action a fee of fifty dollars and also a percentage of the damages which he may “recover” in the action, is not liable for such percentage of the judgment obtained, but only for a percentage of the damages received.</p>

<p>1. Trust Funds — Implied Trust.</p> <p>A trust fund may be pursued by the beneficiaries, as long as the same can be identified, into any land or other form of investment made by the trustee, as the law raises an implied trust as to such property in their behalf.</p> <p>2. Trust Funds — Creditors Bill — Parties to Suits.</p> <p>When the beneficiaries of such a trust are known to the plaintiffs instituting a general creditors’ suit against the trustee to subject his property to the payment of his debts, such beneficiaries must be made formal parties to such suit; and they are not bound by the decrees therein by reason of the publication of the general notice to lienholders required by chapter 189 of the Code.</p>

<p>1 Insurance — Agents Authority — Waiver by Agent — Prior or Subsequent Insurance.</p> <p>An insurance agent authorized to solicit business for his company, and-to issue policies, is, within the general scope of the business he transacts, pro liceo vice the insurance company. He may waive forfeitures and conditions in the policy, and may consent to prior or subsequent insurance on the property, although the policy issued by him contains a provision that such prior or subsequent insurance taken on the property will render the policy then issued void.</p> <p>2. Insurance — Subsequent Insurance.</p> <p>It is a general principle of law that in order to avoid a policy on account of subsequent insurance, against an express condition therein, it must appear that such subsequent insurance is valid, and can be enforced. If it can not be enforced, it is no breach of the condition of the prior policy.</p>

I. — Partial payments not provable without bill of particulars. —Code, c. 126, s. 4; 9 W. Ya. 858, 373. II. — Instruction to disregard evidence not always sufficient. — 56 Am. Rep. 816, note (100 Ind. 268); 56 Am. Rep. 815, note (92 Ind. 34); 56 Am. Rep. 812, and note p. 814. III. — Misconduct of Cole raises presumption against verdict.— 22 W. Ya. 44. cited 36 W. Ya. 690, 696; Bart. Law, Prac. p. 143, § 10; 33 W. Va. 29, 54; 29 W. Ya. 410; 1 S. E. Rep. 582; 10 S. E. Rep. 29.

<p>cited 39 W. Ya. 579; 30 W. Ya. 504; 33 W. Ya. 202, 209, 217, 218; 38 W. Ya. 409, 6th point syl.; Code c. 129, s. 4; 86 Ya. 410; 10 W. Ya. 298; 12 W. Ya. 214.</p> <p>cited 39 W. Ya. 579; Code c. 139, s. 7; 33 W. Ya. 197.</p>

<p>1. INNKEEPERS* LIABILITY — THEFTS BY INN SERVANTS.</p> <p>An inn or hotel keeper is a guarantor for the good conduct of all members of his household, including those engaged in his service, and is liable for thefts committed by them of the property of his guests while asleep in rooms assigned them.</p> <p>2. Innkeepers’ Liability — Guests—Servants.</p> <p>The fact that the guest is intoxicated or his door is unlocked will not destroy the landlord’s liability for the acts of his servants.</p>

<p>1. Demurrers to Evidence,</p> <p>The syllabus in Garrett v. Ramsey, 26 W. Va. 345, upon demurrers to evidence, approved.</p> <p>2. Infants — Contributory Negligence</p> <p>A child of very tender years is not chargeable with contributory negligence.</p> <p>3. Railroads — Trainmen—Ordinary Care.</p> <p>The engineer and fireman of a railroad train must keep a careful lookout on the track ahead to discover persons and animals upon it, and use ordinary care to avoid injury to them.</p> <p>4. Railroads — Infants.</p> <p>While it may be assumed by the engineer that a person walking upon a railroad track will get off it in time to save himself from injury from a train, yet that is not the rule as to children of very tender years, or persons plainly and obviously disabled by deafness, intoxication, sleep, or other cause from taking care of themselves.</p> <p>5. Pabbnts’ Negligence.</p> <p>Parents’ negligence. When it prevents recovery for injury to children.</p> <p>6. Demurrer to Evidence.</p> <p>Demurrer to evidence, principles of.</p>

<p>cited 37 W. Va. 26; 8 W. Va. 292; Const. Art. VIII, s. 5; 40 W. Va. 521; 3 Add. Cont. Append, p. 23, note 13, p. 24; 1 W. Va. 109, syl. pt. 2,115; Am. Dig. (1890) p. 3101, par. 91, 92; 1 Add. Cont. 87-89; 2 W. Va. 458; Bates, Part. §§ 303-4-5-8-9-15-16-22-23-24; 1 Sto. Eq. Jur. §§ 307-8-15 16-23; 2 Add. Cont. 778-9; Sto. Ag. §§ 210, 211; 138 H. S. 380; 129 IT. S. 663; 79 Va. 158; 25 Gratt. 40; 21 W. Va. 617; 17 Am. & Eng. Enc. Law, 1054-5-6; 1 Id. 372, 373; B W. Va. 188; 1 Am. & Eng. Enc. Law, 375-6-7-8-9-80-81, 417-18, 425, 429.</p> <p>cited 23 Graft. 383; 22 W. Ya. 70; 22 Gratt. 649; 90 Ya. 711; 33 W. Ya. 553.</p>

<p>1. Master and Servant — Master’s Duty — Reasonable Care.</p> <p>The measure of a master’s duty to his servant is reasonable care having relation to the parties, the business in which they are engaged, and the exigencies which require vigilance and attention. He is not a guarantor of the safety of his servant.</p> <p>2. Master and Servant — Care in Choosing Servants — Co-Servants’ Risk.</p> <p>The master’s duty is to make and promulgate proper rules. It is not required that the master should see to it, personally, that notice comes to the knowledge of all those to be governed thereby. If there is due care and diligence in choosing competent servants to receive and transmit the necessary orders, the negligence by them in performing it is a risk of the employment that the co-employe takes when he enters the service.</p> <p>3. Instructions — Hypothetical Facts.</p> <p>It is error to instruct a jury hypothetically upon a state of facts when there is no evidence tending to prove such facts.</p> <p>4. Railroad Companies — Servant’s Knowledge op Risk — Assumption of Risk.</p> <p>Where an employe of a railroad company has knowledge of any danger connected with his employment which may be avoided by the use of ordinary care, and appreciates the danger to which he exposes himself, if he continues in such employment after such knowledge, without protest or complaint on his part, or promise on the part of such railroad company that such danger shall be removed, he will be held to have assumed the risk of such danger, and to have waived all claims for damages in case of injury.</p> <p>5. Master and Servant — Assumption of Risk — Obvious Danger.</p> <p>When a servant enters into the employment of a master, he assumes all of the ordinary risks incident to his employment, whether the employment is dangerous or otherwise; and if a servant willfully encounters dangers which are known to him, or are notorious, the master is not responsible for any injury occasioned thereby.</p>

<p>1. Dedication — Public Square.</p> <p>A public square in a town or village, which for more than eighty years has been treated as such by the county court of the county, has been recognized as such by the municipal authorities of the town, and used as a public square by the court and the public generally, must be considered as dedicated as a public square for the use of the public.</p> <p>2. Dedication — Public Square — Misuser.</p> <p>The county court of the county, being desirous of erecting a jail, having as early as November, 1813, agreed with a party fronting on such public square that in consideration of the conveyance of a lot for such new jail to be erected upon, no public building shall be erected on such xiublie square in front of said party’s house, can not, after said public square has for so many years been dedicated to the public, and accepted as such, sell the same to private parties for the erection of private buildings, and the party owning property as aforesaid fronting on such public square may restrain the erection of private buildings thereon by injunction.</p>

<p>1. County Court — Contracts—Ratification of Contracts.</p> <p>Two members of the county court of Kanawha county, made by lawa corporation, on the streets of Charleston, and as individuals, gave the following order: “Charleston, W. Va., Nov. 12, 1894. Mr. George A. Goshorn — Dear Sir: You will please deliver to Kanawha county poor farm, by river, as soon as there is water in the river for large boats to run so you can deliver same, 60 hogs, for use of poor farm, at 7 cents per pound. J. D. Shrews-bury. C. S. Young, Pres. Kana. Co. Ct.” In pursuance thereof the twenty seven hogs in controversy were delivered at the poor farm, received by the superintendent, and appropriated to the use of the poor. Beld, that such transaction, unless ratified by the county court, had no binding force on said corporation.</p> <p>2. County Court — Members of County Court.</p> <p>For the members of such corporation can not individually give their consent or enter into a contract in such manner as to oblige the corporate body.</p> <p>3. County Court — Contracts—Ratification of Contracts.</p> <p>It was not ratified by the superintendent of the poor farm, as he did not appear to have the authority, express or implied, to have made the original contract, or to know any thing about the transaction. It was not ratified by the corporate body, but, when presented for allowance and payment, it was disallowed and rejected.</p> <p>4. County Court — Quantum, Valebant. "</p> <p>The county court, not being able, without its fault, to return the same hogs, was liable to pay what they were reasonably worth, viz. the fair market value at the time and place of delivery, with such incidental sums added as were necessary to make the sellers whole.</p> <p>5. County Court.</p> <p>The eounty court is a corporation created by statute, and can only do such things as are authorized by law, and in the mode prescribed.</p>

<p>cited 2 Woerner, Am. Law of A dm. §§ 324, 336; 7 Am. & Eng. Enc. Law, 347, notes.</p> <p>cited Code, c. 130, s. 23; 25 W. Ya. 580, 581; 27 W. Ya. 451; 33 W. Ya. 197, 209, 675,' 679; 20 W. Ya. 282, 330, 331, 322, 332, 337, 325; 22 W. Ya. 581, 583, 585; 3 Munf. 198, 288; 14 Oratt. 269, 282, 284; 5 Munf. 223; 23 Gratt. 100, 675; 6 W. Ya. 417, 418; Code, c. 87, s. 5; 38 W. Ya. 670; 20 Gratt. 75; 5 W. Ya. 416; 4 ~W. Ya. 658; 36 W. Ya. 556.</p>

<p>1. Breach of General Warranty — Adverse Possession— Statute of Limitations.</p> <p>In an action of covenant for breach of warranty, if it appears that a portion of the land conveyed with covenants of general warranty was in the adverse possession of a stranger at the date of the conveyance, and held by a paramount title, the grantee in such deed will be held to be evicted on the day of the execution of said deed, and the statute of limitations will commence to run against the action from that date, and will be barred in ten years thereafter.</p> <p>2. Adverse Possession — Possession oe Senior Patentee — Possession of Junior Patentee.</p> <p>Where a party holds a large tract of land under patent from the state, which tract is divided by a line of narrow surveys running across it, held by junior patentees, who have acquired good title to said narrow surveys, and the holder of the senior patent takes possession of the land within the bounds of his patent on the east side of said line of narrow surveys, such possession will not be limited by the boundaries of said narrow surveys, but will extend to the exterior bounds of his patent on the west side of said narrow surveys.</p> <p>3. Interlock — Possession of Senior Patentee — Possession of Junior Patentee.</p> <p>Where there is an interlock between the land held under said elder patent and a junior patent, and the junior patentee is in possession under his patent, but outside of the interlock, and the senior patentee is in possession, by actual improvement, of any portion of his land under said senior patent, the junior patentee will be limited by the boundaries of the elder patent.</p> <p>4. Verdict — Evidence—Review.</p> <p>Where a motion is made in the circuit court to set aside a verdict on the ground that the same is contrary to the evidence, and the court fails to certify all the evidence offered or all the facts proved, this Court can not review or reverse the judgment for that cause.</p>

<p>1. GUARDIAN AND WARD — WARD'S LaoheS — ESTOPPEL.</p> <p>Where a guardian receives the money of his ward, and loans the same to a party, taking his note secured by trust deed on real estate for the payment of the same, and, after the ward arrives at the age of twenty one years, he enters into an agreement with the party to whom the money was loaned by his guardian to take a less sum than the amount so loaned, which sum being paid he executes á paper to the guardian, acknowledging the receipt in full of the money in his hands to the credit of his said ward, after waiting six years, brings suit against said guardian for the entire amount which was in his hands, he can not recover, for the reason that he is estopped by the paper executed by him to his guardian, and by reason of his laches in asserting his claim.</p> <p>2. Equity — Lapse op Time — Waiver.</p> <p>Lapse of time, when it does not operate as a positive statutory bar, operates in equity as an evidence of assent, acquiescence, or waiver.</p> <p>3. Equity — 'Waiver—Laches.</p> <p>Delay in the assertion of a right, unless satisfactorily explained, may operate in equity as a waiver of such right, and laches and neglect are always discountenanced by a court of equity.</p> <p>4. Guardian and Ward — Rboeipt—Estoppel.</p> <p>Where the money of a ward is loaned out by his guardian on good security, and after the ward arrives at his majority, in consideration of a sum of money paid to him by the party to whom said money was loaned, he receipts to the guardian in full for the principal and interest of all money and property in his hands belonging to said ward, in the absence of fraud such receipt constitutes a good acquittance, and estops said ward from recovering the balance of the money, which wasloaned out by said guardian, from said guardian.</p>

<p>cited 4 H. & M. 450; 26 W. Ya. 27; Bart. Ch. Pr. 130, 389; Code, c. 125, s. 38; 2 Munf. 196; 3 Munf. 358; 1 Lorn. Dig. (Ed. 1839) 200; 10 Am. & Eng. Enc. Law, 7, 15, 4, 28, 26, 27, 29,18,19,20, 21, 694, 696, notes; 3 Am. & Eng. Enc. PI. & Pr. 579, 580; 74 Am. Dec. 291-96; Bish. Eq. (4th Ed.) 119; 1 Pom. Eq. Jnr. 610; 1 Perry, Trusts, 138; 1 Lewin, Tr. (1st Am. Ed.) 163; 12 W. Ya. 371, 381, 542; 19 W. Ya. 166, 172, syl. pt. 3; Sto. Eq. PI. §.407; 1 Bart. Ch. Prac. 334; 8 W. Ya. 174.</p> <p>cited Code, c. 132, s. 7; 1 DanT, Ch. Pr. (4th Ed.) 164-66,195,197, 230, 285*26 W. Ya. 1, 10, 15, 59; 21 Gratt. 636, 645; 4 Min. Inst. pt. 2, pp. 1190, 1203, 1337; 10 Am. & Eng. Enc. Law, 694-97, 257; 9 W. Ya. 492; 30 W. Ya. 182, 185, 186, 358, 779, 784, 785; 41 Miss. 370; 31 W. Ya. 9, 561; 1 Bart. Cb. Prac. 214, 216; Sto. Eq. PI. § 160, n. 2; 6 W. Ya. 369; 5 W. Ya. 199; 3 W. Ya. 176, 676; 13 Pet. 223; 14 W. Ya. 66, 80; 39 W. Ya. 121, 122; 34 W. Ya. 229, 230; 24 W. Ya. 95, 107; 6 Mete. 194; Code, c. 134, s. 5; Code, c. 130, s. 23; 37 W. Ya. 366; 9 Am. & Eng. Enc. Law, 806, 807, 808; 1 Greenl. Ev. §§ 334, 337, 341; 18 W. Ya. 695, syl. pt. 9; 32 W. Ya. 17; 15 W. Ya. 582; 2 Wall. 94; 95 U. S. 161; 3 Leigh, 353; 16 Mich. 41; Pom. Eq. Jar. § 817; 54 Am. Dec. 130-34; Amb. B. 645; 42 W. Ya. 72; 37 W. Ya. 201, 356, 368; 32 W. Ya. 17, 325; 30 Gratt. 751.</p>

<p>1. Vendor’s Lien — Discharge of Lien.</p> <p>In a sale of realty, the vendor retaining title, the taking of a note of either vendor or a third person will not discharge the lien by implication, in absence of plain intention that it so operate.</p> <p>2. Executory Contract — Vendor’s Lien--Discharge of Lien.</p> <p>One sells land by executory contract stating a certain price, providing, “And the said Mansfieid agrees to take the note of said Dameron, with interest and security, due in * * * for said $500.00, or the note of S. S. Vinson; and the said Mansfield further agrees that when said payment is made or secured he will make” a deed. Vinson gives his note. That does not discharge the lien for purchase money.</p>

<p>cited 16 W. Ya. 807; 35 W. Ya. 682; 34 W. Ya. 457; 31 W. Ya. 385; Hogg’s PI. & Er. p. 384.</p> <p>cited 31 W. Ya. 385, Syl. pt. 2; 34 W. Ya. 457, Syl. pt. 1; 35 W. Ya. 406, 410; 8 Gratt. 632; 29 W. Ya. 407; Code, c. 43, s. 81; 32 W. Va. 6, Syl. pt. 2; 16 W. Ya. 307; Bart. L. Pr. 300.</p>

<p>1. Set-Off — Amount of Set-Off — Jurisdiction of Court of Appeals.</p> <p>Where the plaintiff’s demand is not controverted, but the defendant files and relies on a bona fide set-off, exceeding one hundred dollars in amount, which is wholly disallowed, the amount of such set-off determines the jurisdiction of this Court.</p> <p>2. Justice of the Peace — New Trial.</p> <p>The last sentence of section 91, chapter 50, of the Code, to wit, “No more than one new trial shall be granted by a justice in any case,’’ construed to mean that not more than one new trial shall be granted either party in any suit.</p> <p>3. Set-Off — Assigned Claim.</p> <p>A defendant is entitled to set-off a bona fide claim assigned to him at any time before commencement of suit. The amount paid therefor, if anything, is a matter between the assignor and as-signee, with which the plaintiff has nothing to do if he justly owes such claim.</p>

<p>1. Statutory Action — Death by Wrongful Act — Statute of Limitations.</p> <p>Chapter 103 of the Code (sections 5, 6, p. 725, Ed. 1891) is the West Virginia Lord Campbell’s act, creating a cause of -action where none existed at common law for wrongfully causing the death of a person; and the proviso that any such action shall be commenced within two years after the death of such deceased person is an essential restraining element of the right of action given.</p> <p>2. Process — Writ—Return Day op Writ.</p> <p>The process in this state to commence a suit is a writ commanding the officer to whom it is directed to summon the defendant to answer the bill or action, and must be returnable within ninety days after its date to the court on the first day of the term, or in the clerk’s office to the first Monday in a month, orto some rule day; and if, at the return day of any process, it be not returned, an alias, efe., may be issued, efc.</p> <p>3. Commencement op Action — Writ—Prima Facie Evidence.</p> <p>The suing out of the writ of summons is the commencement of the action; but the date of the writ is not conclusive, but is prima facie evidence of the commencement of the action.</p> <p>4. WrioN-Record — Oyer.</p> <p>The writ is never a part of the record in an action except to sustain the judgment or proceeding, unless made so by being read on oyer craved.</p> <p>5. Demurrer — Writ—Statute op Limitation.</p> <p>A demurrer never reaches the writ unless it is made a part of the record, and not then for matter of abatement; but, when made a part of the record, the writ may be looked to on demurrer as showing the fact of the time when the action was commenced; and when commencing the action within a given time is made an essential element of the right to sue absolutely, and without any qualification or saving for a cause of action created by a statute, and the facts thus appearing from the writ and dee-Iaration show that the action was not commenced within the two years (the time prescribed) no right of action arises out of the facts averred, and the court, on demurrer, should consider the declaration as not sufficient in law.</p> <p>6. Appeal — New Trial.</p> <p>By the Code of West Virginia (see clause 9, s. 1, c. 135, p. 848, (JSd. 1891) an appeal may be taken from an order granting a new trial without waiting for the new trial to be had.</p> <p>.7 Verdict — New Trial.</p> <p>An error of law committed by the court in overruling a demurrer by defendant to plaintiff’s declaration, such as stated above, is sufficient ground for the trial court for setting aside the verdict, and awarding a new trial.</p>

<p>Building & Loan Associations — Assessment of Building Associations.</p> <p>Building and loan associations are not to be assessed with a capital stock. The members are to be assessed with their shares.</p>

<p>CONSTITUTIONAL LAW — ADULTERATED FOOD — OLEOMARGARINE.</p> <p>Chapter 8 of the Acts of 1891, providing that from and after its passage it shall be unlawful for any manufacturer or vendor of oleomargarine, artificial or adulterated butter, to manufacture or offer for sale within the limits of this state any oleomargarine, artificial or adulterated butter, whether the same be manufactured within or without this state, unless thesame shall be colored pink, and prescribing a penalty for the violation of thesame, held to be not unconstitutional.</p>