Volume 43 — West Virginia Reports

<p>Appeal from Circuit (Jourt of Barbour county.</p> <p>Bill by Arquilla J. Ward against Taylor Ward. Decree for plaintiff. Defendant appeals.</p>

<p>Error to Oircuit Oourt, Cabell county.</p> <p>(lase by J. II. Berkely against the Chesapeake & Ohio Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

JBill by James W. Davis against H. M. Settle, the Rush Run Coal & Coke Company, and others for partition, and to determine complainant’s rights in land. From a decree for plaintiff, the defendant coke company apx>eals, and certain of the appellees cross-assign errors. '

<p>Error to Circuit Court Taylor county.</p> <p>Assumpsit by Oscar E. Riley against Claude B. Jarvis and another. There was a judgment for plaintiff, and defendants bring error.</p>

<p>1. Justicie oe the Peace — Forms of Action.</p> <p>Common-law forms of actions, in so far as justices’ trials are concerned, are entirely abolished by section 19, chapter 50, Code. (p. 56.)</p> <p>2. Damages eor a WRONG — Money Due on (Contract</p> <p>The words “damages for a wrong” are, in substance, according to their legal definition, equivalent- to the words, “money due on contract”; the former phrase being broader than and including the latter according to ordinary legal phraseology and meaning, (p. 57.)</p> <p>3. Statutory Actions — Recovery of Money — Pleading.</p> <p>Where a person sues to recover money lost at gambling, stolen, or for which indebitatus assumpsit would lie at ■ common-law, either phrase is sufficient in the summons to describe the cause of action, (p. 58.)</p> <p>4. Justice oe the Peace — Statutory Actions — Actions e.r Contractu and e.e Delicto.</p> <p>The provisions of chapter 50 of Code-were not intended to keep up the distinction between actions e.r contractu and e.r. delicto as at tlie common-law. (p. 60.)</p>

<p>1. Munich» al CORPORATIONS — Change of Grade — Damages. Ef a street be opened and used upon the natural surface as a grade line, and it is recognized and treated by a city or town as a public street, and owners of lots upon it build with reference to such natural grade line, and it is changed, the. city or town is liable to lot owners for damages consequential upon the change of grade, though no grade for the, street was ever adopted by the municipality, under section 9, article III of the Constitution. Much natural grade thus became the established grade, (p. 04.)</p> <p>2. Municipal CORPORATIONS — Paper Grade Line — Damages to Buildings.</p> <p>Though such owner purchase after the municipality has established a paper grade line, hut before actual physical grading conforming a street, to that line, that will not preclude his recovery for damages to his lot; but he cannot recover for damages to buildings erected after the adoption of such paper grade. He must, conform to such grade line, (p. 68.)</p> <p>3. Damages — Measure of Damages — Change of Grade.</p> <p>The measure of damages for injury to property from change of a street, grade line, is that sum which will make the. owner whole; that is, the diminution of the market value from the change. If the. market, value is as much immediately after as immediately before the change, no damages can be recovered. (p. 69.)</p> <p>4 DAMAGES — Estimating Damages — Change of Grade.</p> <p>In estimating damages to property from change of grade in a street, all damage and injury arising from the change causing a diminution in the value of the property are to be regarded, abating all special benefits to the property enhancing its value arising from the change of grade, but not general benefits shared by the property owner in common with others in the community at large. The question is one of damage, less special, but not less general, benefit, (p.70.)</p> <p>5. Public Improvements — Special Benefits to Property-General Benefits to Property.</p> <p>What are special benefits? If property is enhanced in value by reason of a public, improvement, as distinguished from the general benefits to the whole community at large, it is speomilly benefited, and is to be assessed for the special benefits, notwithstanding- every other piece of property upon or near the improvement may, to greater or less extent, be likewise specially benefitted. In other words, it is not only such benefits as are special, or limited to the particular property, thereby excluding- the consideration of such benefits as are common to other property similarly situated, but it is such benefits as that the particular property is by the improvement enhanced in value — that is, specially benefited — that are to be considered. ,Tf apiece of property is enhanced .in value, its enhancement, or in other words, benefits to the property, cannot, be said to be common to any other piece of property specially enhanced in value, and it is thus specially benefitted within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties, (p. 70.)</p> <p>(5. JOvidkitojo — Opinion Evidence — Damages.</p> <p>Opinions of witnesses as to the value of property before and after a change in a street’s grade are admissible as evidence in actions against municipal corporations for damage flowing-from such change, (p. 78.)</p>

Assumpsit By tlie Bank of Eavenswood against A. Hamilton and others.. There was judgment for plaintiff, and defendants bring error.

Court, Roane county. Action by tlie Bank of Spencer, to the use of A. D. Ferrell, against G-. B. Simmons and W. S. Simmons. Judgment for plaintiff, and defendant William S. Simmons brought error.

<p>Appeal from Circuit Court, Wayne county.</p> <p>Bill by the Coaldale Mining & Manufacturing Company against E. W. Clark and others. Decree for plaintiff, and defendants appeal.</p>

Bill by Joseph B. Neale and others against the county court of Wood county, the Little Kanawha Railroad Company, and others. Decree for plaintiffs, and the defendant railroad company appeals.

Action by James McCreery’s administratrix against the Ohio River Railroad Company. Judgment for four thous- and two hundred dollars for plaintiff, and defendant brings error.

Bill by Ellen McDonald and others against Catherine McKittrick and others, and bill by Daniel McKittrick against Catherine McKittrick and others. The suits were consolidated, and from the decree Ellen McDonald and others appeal.

<p>1. UNUAWETTn Dmtaint>!K — Summons—Justice, of the. Peace. N</p> <p>'Summons in unlawful detainer before a justice, held good.I. (p. 126.)</p> <p>2. üxLAwm Dutaixer — -Pcseription of Premises.</p> <p>Description of premises in unlawful detainer, held good, (p. 127.) ' :</p> <p>3. Unlawful Detain kb — Summons—Description of Premises.i</p> <p>Description of premises in summons in unlawful detained before a justice shall describe the premises with convenient certainty, so as to enable the sheriff to deliver possession; but that description need not be so certain as in itself and alone to enable him to do so, as he may deliver as the plaintiff, or information from other sources, may direct, so he do not violate the description in the summons. If that description can he rendered certain by extrinsic evidence, it Is sufficient, (p. 128.)</p> <p>i. fciTARH DlSOlSTS.</p> <p>Doctrine of stare deeisi's discussed, (p. 129.)</p> <p>5. Unlaweul Detatheb — Pleading—Ver diet.</p> <p>In unlawful detainin’ before a- justice, or on its appeal, a verdict, on full trial on the merits, will not he set aside because there was no plea and issue. The statute puts in the plea of not guilty, (p. 180.)</p> <p>6. Vmjrdiot Without 'Issue.</p> <p>The rule that a verdict without issue is bad, questioned by Bbansox, Judge. (p. 129.)</p>

<p>1. "Witness- — Compete net/ of Witness.</p> <p>A witness may be competent, to testily concerning some of the facts in issue, though incompetent as to others, (p. 183.)</p> <p>2. Witness — Competency of Witness — Transaction,i with Decedent.</p> <p>A party to an action, or interested therein, may testify to any fact which is material in evidence, and does not involve a personal transaction or communication with the opposite party, notwithstanding- the death or insanity -of the latter, (p. 133.)</p> <p>8. (íorporattons — -stockholders—Evidence—&'took Book.</p> <p>Where the name of an individual a.ppeai-s upon the stock hook of a corporation as a stockholder, the presumption is that he is the owner of the stock appearing in his name; and such hook is proper evidence to go to the jury to show that he was a subscriber to the capital stock of such corporation. Railroad Co. v. Applegate, 21 W. Ya. 172. (p. 134)</p>

<p>Error to Circuit Court, Kamnvila county.</p> <p>Action by Wilburn Blankenship, by guardian ad /item, against the Kanawha. & Michigan Railway Company. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Intoxicating Ltquoks — Sales by Druggists — Prescription of Physician.</p> <p>In any prosecution against a druggist for selling alcohol, spirituous liquors, or wine, if the sale he proven, it shall he presumed that the sale was unlawful, in the absence of satisfactory proof to the contrary; hut this presumption may he rebutted by the production oi! the written prescription ,of a practicing physician in good standing in his profession, and not of intemperate habits, complying with the.requirements of section G of chapter 82 of the Code. (p. 147.)</p> <p>2. INTOXICATINC! Liquors — Prescription of Physician.</p> <p>A case in which the prescription relied on by the defendant to rebut the presumption that such sale was unlawful is considered as complying with the requirement of the statute, and, under the circumstances of the case, constituting a de--fense to the indictment, (p. 148.)</p>

<p>Appeal from Circuit Court, Clay county.</p> <p>Suit by William N. Woods and others against Madison Stephenson, Decree for defendant, and plaintiffs api)eal.</p>

<p>Appeal from Circuit Court, Braxton county.</p> <p>Bill by H. A. Holt, commissioner, against J. 0. Taylor and others. Dec.reee for defendants, and plaintiff appeals.</p>

<p>1. Statutw ok Lmitatioxs — Fraudulent Oon reponer — Kri-denee.</p> <p>A creditor cannot sc't aside a voluntary conveyance, after five years from the making; thereof, without proof of actual fraud participated in by the parties to the transaction, (p. 169).</p> <p>2. Vtoxjjokk 'Liiox — Implied Lien.</p> <p>A vendo]1 who does not expressly retain a lien for the, purchase money in a deed made, by him for land has no implied lieu therefor on such ¡and, even as against his immediate vendee, (p. 172).</p>

<p>Appeal from Circuit Court, Logan county.</p> <p>Bill bv Jacob Smith against James O’Keelfe and another. Decree for defendants, and plaintiff appeals.</p>

<p>CRrMiNAn Da ay — Appeal—New Trial — Verdict.</p> <p>Case in which new trial denied. Force of verdict discussed. (p. 182.)</p>

Alvis Watts was indicted for issuing prescriptions to aid druggists to violate the liquor law, and brings error. From a judgment sustaining the demurrer to the complaint the state brings error.

Action by Straley & Co. against one Payne. Judgment for plaintiffs before a justice reversed on certiorari, and plaintiff's bring error.

Action by the ¡State of West Virginia, for the use of L. A. tíweetland and J. tí. ¡Sweet-land, partners as tíweetland Bros., against J-. D. Porter, J. tí. tíweetland, and others. Demurrer to the declaration sustained, and plaintiffs bring error.

<p>1. Res Adjuwoata — Pleading—Question for Court.</p> <p>A plea oí former judgment on the same cause of action in bar of the plaintiff’s suit, replied to by “No such judgment,” should he tried by the court by an examination and inspection of the record, and it is improper to submit the same to a jury. (p. 192.)</p> <p>2. Justice of the Peace — Justice’s Docket — Entry of Judgment.</p> <p>By section 180, chapter 50, Code, all formalities in the entries of a justice’s judgment are dispensed with, and the same is sufficient if the truth be stated so a,s to be intelligible. Cp- 195.)</p> <p>3. Res Adjuwoata — Form of Judgment.</p> <p>Where the plaintiff already has an intelligible judgment, though defective in form and grammar, against the same parties on the same cause of action, he is precluded thereby from instituting another suit therefor before another justice, or in court, (p.195.)</p>

<p>Error to Circuit Court, Greenbrier county.</p> <p>Action by William Y. McManus against 8. E. Mason. Judgment for defendant, and plaintiff brings error.</p>

<p>New Tktajl— Vacating Judgment?— Surprise.</p> <p>During the term of court, the. counsel representing- the parties plaintiff and defendant in a. case, in the presence of Hie regular judge, are talking- over the business remaining unfinished, the defendant in said case, being present, who understands from the conversation that his case should not be taken up before the next Tuesday for trial,which conversation was on Friday; and under this impression the defendant, with his witnesses, left the court. On Saturday a. special judge was elected, who went, upon the. bench on Monday morning, and tried the case, in the absence of said defendant and his witnesses, and in ignorance', of said misunderstanding, although an attorney for the. defendant, was in town, and had notice that a jury was being called in the case, and refused to go to the court house, on account- of some feeling existing- between himself and the. special judge, and on account of his being too unwell to attend to business, and sent another attorney to state, the matters to the court in reference to said understanding. The trial is proceeded with, and a judgment is rendered against the defendant, although he claims to have had a good defense. The. trial of the cause, under the circumstances, works such a surprise, upon the defendant that a motion to vacate the. judgment, set aside the. verdict, and award a new trial, should have prevailed. (p.2()(i.)</p>

Petition by the court of Summers county for the appointment of commissioners to determine the boundary between such county and Monroe county. Prom an order refusing to appoint commissioners, and dismissing the petition, Summers county brings error.

<p>1. ABANDONED Wife — Foreign Residence — Separata Estate.</p> <p>A married woman who has been wholly abandoned by her husband, permanently residing' in another state or foreign country, under the rules of the common-law, as settled by the various decision of the various courts of the United States, is restored to all the powers of a feme sole as to her seperate property. This rule has been extended, modified or abrogated by the statutory enactments of various states, (p. 215.)</p> <p>2. Estopped by Deed — Heir Apparent — Heim.</p> <p>.By deed with covenants of general warranty, an heir apparent may estop herself from afterwards claiming her inheritance. Such estoppel extends to her heirs, (p. 217.)</p> <p>8. Estopped — lies Ad-jut ¡cata — Material Fact.</p> <p>A person who relies upon an adjudication as an estoppel cannot dispute the truth of the material fact on which such adjudication is predicated, '(p. 217.)</p> <p>1. Estopped — Res Adjudieata — Adverse Title.</p> <p>A party to a suit, who claims title adverse to a former adjudication of this Court, by which he is not bound, cannot rely on such adjudication as an estoppel against parties to such former suit. An estoppel, to be binding, must be mutual, (p. 217.)</p> <p>5. APPOINTMENT.</p> <p>The case of Thrasher v. Raliard, 85 W. Va. 521, approved, but held not to be binding on the parties to the present litigation. (p. 215.)</p>

<p>1. A pi’KAjj — Record—Bill of Exceptions.</p> <p>When a- lull ol! exceptions is taken after all the evidence has keen submitted, and it purports to set out all the evi- • x x deuce, the evidence set out in tills bill of exceptions may looked to in considering the questions raised in another bill of exceptions taken in the progress of the trial. Hallv. Hall, 12 W. Va. 2. (p. 221.)</p> <p>2. Negdig-enoe — Question for Court.</p> <p>When a given state of facts is such that reasonable men may differ upon the question whether thére was negligence or not, the determination of the matter is for the jury. But when the facts are such that all reasonable men must draw from them the same conclusion, — when there is no room fpr two reasonable opinions about it, — then it becomes a question of law for the court. Rabies v. Railway Co., 39 W. Va. 50, syllabus 2 and 3. (p. 225.)</p> <p>3. Evidencie — Excluding Evidence Erom Jury.</p> <p>When the evidence is so clearly deficient as to give no support to a verdict for plaintiff, if so rendered, the court should exclude the evidence from the jury, (p 226..)</p>

Petition by Hugh P. McGlauglilin and others against David McGlauglilin, executor of the will of Hugh Mc-Glauglin, deceased, and others. Prom the decree rendered, Uriah Hevener, administrator of the estate of David McGlauglilin, deceased, appeals.

• Error to Circuit Court, Jackson county. Application by 0. C. ¡Shank and. others for a writ of mandamus against, the town of Ravenswood. From a judgment awarding the writ, the town brings error.

<p>Appeal from Circuit Court, Greenbrier county.</p> <p>Bill by Mrs. Anderson and others against Joseph Jarrett. Decree for plaintiffs, and defendant appeals.</p>

<p>Appeal from Circuit Court, Marshall county.</p> <p>Bill by Robert. Crawford against J. B. Ritchey. From a judgment sustaining a demurrer to the bill, plaintiff appeals.</p>

<p>Error to Circuit Court, Marion county.</p> <p>Action by George Yeager and M. E. Yeager against the town of Fairmont. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Suit by Levi Gay and another against J. B. Lockridge and others. From a decree against her, defendant Lillie B. Lockridge appeals.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by I). W. McClauglierty against I). N. Croft. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit. Court, Braxton county.</p> <p>Bill by C. K. Newlon and another against L. M. Wade and others. Decree for plaintiffs, and defendant Wade appeals.</p>

<p>Advbbse POSSESSION — Color of Title — Void Deed — Statue of Limitations.</p> <p>Possession under a void deed is sufficient to give color of title as against the grantors, and to set in motion the statute of limitations, and the coverture of the appellant, who was the grantor, does not affect the question (Ircy v. Markey, 182 Inti. 546 (82 N. TO. 809), she being excepted from the disabilities mentioned in section 3, chapter 104, Code, as to her sole and separate property, (p. 298.)</p>

<p>Appeal from Circuit (Jourt, Marion county.</p> <p>Bill by Clinton B. ¡Snodgrass against J. Y. Knight and others. From a judgment dismissing the bill, plaintiff appeals.</p>

<p>1. Executors — Commission.s— Wills.</p> <p>A will devises realty to four devisees equally, Testing them with legal title, and gives the executor naked power to sell for the interest of all concerned ; and by agreement among the devisees they convey to each other iii severalty certain parcels at agreed valuation, on account of their interests. The executor is not entitled to commission thereon, (p. 297.)</p> <p>2. Election to Take Land.</p> <p>Election to take land referred to. (p.293)</p>

<p>Appeal from Circuit Court, Wirt County.</p> <p>Bill by J. A. Davis and others against George W. Davis and others. From a judgment dismissing the bill, plaintiffs appeal.</p>

Suit by J. W. Rack against John P. Slumkliii, in his own right, and as executor of tlx» will of James Bhanklin, deceased, and others. From the decree rendered, the trustees of the Generally Assembly of the Presbyterian Church in the United States appeal.

<p>1. Deed of Trust — Merchandise—li.rteusion of Trust — Fraud.</p> <p>A trust deed on a stock of goods for the security of creditors which provides that the trustees shall take immediate possession of such goods, and manage them for the benefit of the trust, is not fraudulent per sc, and void as to creditors, because it contains a provision allowing the. grantor, without the power of sale, to replenish such stock of goods, and extending the trust to cover the same. (p. 320.)</p> <p>2. Deed op Tk.u.st — Fraud—Knowledge of Parties.</p> <p>Wliere neither the cestui que trust nor trustee has notice oí the fraud in fact, which would otherwise render the trust deed invalid, it will not he held fraudulent- as to them, (p. 328.)</p> <p>3. Deed op Trust — Merchandise—Preferred Creditors.</p> <p>Under section 2 of chapter 74 of the Code, a deed of trust which conveys a stoc.lc of goods to a trustee, to secure a creditor to the exclusion of other creditors of an insolvent grantor is void as to the preference thereby secured, although given for the present loan of money, there being no exception in the statute as to such creditors, (p. 329.)</p> <p>4. Deed op Tk-ust — Insolvent Debtor — Liability of Trustee— Equity Praatiee.</p> <p>When a trustee under a deed of trust executed by air insolvent debtor, without notice to the vendor, takes possession of goods ordered on credit before the execution of t|ie trust, but not shipped or received until afterwards, and sells them, and appropriates the proceeds to the use and benefit of the trust, a court of equity, at the instance of the vendor, will, charge the value of such goods as a prior lien on the trust funds in the hands of such trustee, (p. 331.)</p>

<p>Appeal from Circuit Court, ITarrison county.</p> <p>Bill by Elmer F. Goodwin against Mary Bartlett and others. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Grant county.</p> <p>Bill by Samuel B. Shank against Samuel Groff and others. From the decree plaintiff appeals.</p>

<p>PARTXKHrtiirp — Compensation of Partner — S'pceial Agreement.</p> <p>One partner is not entitled to compensation for his services in the common business, though they may exceed those of his co-partner, in the absence of a special agreement, (p. 352.)</p>

<p>Appeal from Circuit Court, Barbour county.</p> <p>Bill by Chrislip Bros, against- John Teter and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Randolph county.</p> <p>Bill by Melvin Ourrence against Wirt C. Ward and others. Decree for plaintiff, and defendants appeal.</p>

<p>Mastkii and Skhvant — Fellow Serrátil* — Mauler'* Inabilili/.</p> <p>The tost whether ¡1 master is liable to one servant for the negligence of another servant is the character of a negligent aet. If it he in the doing1 of an act incumhoiit on the master as a duty of the master to the servant, the master is liable; otherwise not. (p. :582.)</p> <p>2. M astkr AND Nkk v A XT — FellOw Ser ran In — Ma*(er'* I/iabilil 1/.</p> <p>A master’s liability to one servant for the negligence of another is not dependent on the grade of the servants, nor on thi' fact that mu' has authority over the other, hut on the character of the negligent act. (p. .384.)</p> <p>Railroads — Trainmen—Fellow Serranl*— 17Vr Frinei¡>al.</p> <p>A conductor isa fellow servant with a hrnkcmnu and other servants on a train, not a vice principal.1 (p. ;>i)2.)</p> <p>Mastkii and Skhvant — Ft How Sirrani* — A ’< ¡/lit/ener.</p> <p>All servants engaged in the common service of the same master in conducting and carrying on the same general busi-ne'ss, in which the usual instrumentalities are employed, are fellow servants. A proper test of this rule is whether the negligence of the one is likely to occur and indict injury on th(> other, (p. :i!)8.)</p> <p>Mastkr AND Hkiivaxt — Ma*ltr'* inabilil// — Fellow Servant* — Xet/llf/eitet.</p> <p>If a vice principal, in the particular act in which his negligence occurs, is not in the line of his duty, hut performing an act in the line of one who would he a fellow servant with till' injured servant, the master is not liable for the negligence of tin1 vice principabas he is. as to this aet, a fellow servant with the injured one. (p. .'Si)?.)</p>

<p>Appeal from Circuit Court, Braxton county.</p> <p>Bill by J. W. Morrison against. Henry Wagg-y and another. From a decree for plaintiil', defendants appeal.</p>

<p>1. 1’arol License — Drainage—Rcvoeabiliig nf Lice,use.</p> <p>-4 A parol license from one lot owner in a town to another to pass a tile drain under tlio former’s lot. for the purpose of draining the. lot of the latter is revocable at the pleasure of such licensor, (p. 427.)</p> <p>2. Ka s io mknt— D ce. d— Dr a in age,.</p> <p>To entitle a. party wishing to drain his lot under the surface of his neighbor’s lot by a right not subject to revocation at the will of such neighbor, the privilege, of so doing must be acquired by deed. (p. 427.)</p> <p>H. Base ¡u ent — Deed— Drainage.</p> <p>\j The. right of drainage through the lands of another is an easement requiring for its enjoyment an interest in such lands which cannot be conferred except by deed or conveyance in writing, (p. 42(1.)</p>

<p>Appeal from Circuit Court., Taylor county.</p> <p>Bill by Anthony Triplett, administrator of Washington A. Lake, against John M. Lake and Isabel Lake. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Kanawha county.</p> <p>Action by J. H. Barnett against the Boone Lumber Company. Judgment for plaintiff and defendant brings error.</p>

<p>1.Forged Deed — Cancellation■—liquity Jurisdiction — Title.</p> <p>A suit in equity to annul a. forced deed of land, and have it canceled, and the record of it declared void, brought by the legal owner of the land, who is the grantor named in the l'ovged deed, or the party holding title, from such grantor, who institutes suit to annul such forged deed while he is out of possession, is not taken outof equitable jurisdiction by the fact that the deed is void. It is not necessary, before bringing-such suit, that the legal.owner should establish his title and obtain possession-of the land by ejectment at law. (p. 452.)</p> <p>2. DEPOSITIONS — jJon-Jlesident Witness — Affidavit.</p> <p>The deposition of a non-resident witness, taken without the affidavit required by section 34 of chapter 130 of the Code, can be read upon the trial, if it appears from the depositions themselves that the witnesses wore non-residents of the State at the, time their depositions were taken, (p. 453.)</p> <p>3. Return ok Hi-iertek — Amendment—Depositions.</p> <p>Tf a sheriff has niade a return upon a notice to take depositions which, through inadvertence or mistake, is not in accordance' with the facts, the. court will be liberal in allowing him to amend his return, and when amended it will relate back to the date of the original return, (p. 455.) .</p>

Bill by Frances Jarrell against G. ID. French and others for an assignment of dower, or a gross sum in lieu of dower. From a judgment for complainant, defendants appeal.

<p>Error to Circuit Court, Wood county.</p> <p>Ejectment by the Parkersburg Industrial Company against Otto Schultz and others. From a judgment for defendants, plaintiff brings error.</p>

<p>Error to Circuit Court, Kanawha county.</p> <p>Action by George W. Scott against the Chesapeake & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

A. Shumate’s executors sue W. 0. Crockett, and others. Decree for plaintiffs. From an order refusing a rehearing, Crockett and others appeal.

<p>Error to Circuit. Court, Ohio County. _</p> <p>Charles Goetze was convicted of selling cigarettes without a license. The circuit, court reversed the judgment, and the State brings error.</p>

<p>1. Assumpsit — Written Contract — Recoupment of Damages.</p> <p>In ail action of assumpsit based upon a written contract, the defense to which is that the same was procured by fraud and misrepresentation, going to the whole action, the doctrine of recoupment of damages is not applicable, (p. 512.)</p> <p>2. PijUadiNCí— Non-Assumpsit — Error.</p> <p>While a special plea, setting forth matters in discharge of t-lie action, may be filed when the, plea of non-assumpsit, has been filed, yet, when the matters set up in said plea may be given in evidence under tlie general issue, it is not error to reject such plea. (p. 511.) ■ • •</p>

Court, Doddridge County. Separate bills by B. W. Foley, for the benefit of himself and other lien holders, against F. J. Ruley & Bro. and others, and by W. S. Stuart, for the benefit of himself and other lienholders, against said defendants Ruley. The two cases were consolidated, and from a decree for complainants defendants appeal.

<p>1. Surreme Court of Aeeeals — Review on Appeal — Constitutional Law.</p> <p>This Court is in duty hound to inquire into the constitutionality of an act of the legislature, when the question is properly presented for its consideration, (p. 525.)</p> <p>2. LEGISLATURE — Title of Aet — Object of Act.</p> <p>If the original title of a hill is sufficient-, the legislature does not vitiate the legislation hy rendering sueli title more definite and specific- during the progress of enactment, if the object of tiie bill is not thereby essentially changed, (p. 527.)</p> <p>3. Acts of tub Legislature — Journal — Constitutional Law.</p> <p>A mere clerical omission in the journal of either house will not vitiate an act of the legislature, if there is sufficient on the face of the journal to show substantial"" compliance with constitutional requirements, (p. 528.)</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Bill by Sallie A. Wallis against E. L. Neale and W. R. Guim. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit, Court, Kanawha County.</p> <p>Action by M. C. Clay and wife against the city of St. Albans. From a judgment for plaintiff's, defendant brings error.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by Milton Tennant against Asa Tennant and others to declare a trust. From a decree dismissing tlie bill, plaintiff appeals.</p>

<p>1 Waste — Oil—Trespass—Tnj unction.</p> <p>Petroleum oil in place 'is part of the land. I ts wrongful extraction by one lawfully in possession is waste, and by a stranger is trespass; in both cases irreparable injury, which may he enjoined, (p. 565.)</p> <p>2. Waste — Remainder-Man—Tenant for Life.</p> <p>It is waste in a tenant for life to take petroleum oil from the land, for which he is liable to the reversioner or remainder-man in íe<?. (p. 565.)</p> <p>B. Tenant fob Line — Oil-Wells—Salt Wells — Mines.</p> <p>A tenant for life may work open salt or oil wells or mines even to exhaustion, without account, but cannot open new ones. (p. 566.)</p> <p>4. Waste — Tenant in Common — Liability of Co-Tenants.</p> <p>It is waste in a tenant in common to take petroleum oil from the land, for which he is liable to his co-tenants to the extent of their right in the land. (p. 567.)</p> <p>5. Tenant eob Tufe — Personalty—Ownership.</p> <p>Things part of the land, wrongfully severed by a tenant for life, become personalty, hut belong to the owner of the next vested estate of inheritance in reversion or the remainder, not the life tenant, (p. 569.)</p> <p>6. Equity Jubisdiction— Waste — Reversioner — Tenant for Life.</p> <p>Where there is a life tenant, and timber or other thing-'part ^ of the realty going- to loss, and imperative need calls for it, equity may cause it to be cut or otherwise secured for the remainder-man or reversioner. Equity has x>ower to do so, if it do no harm to the life tenant, or he he eomx>ensated. (p. 570.)</p> <p>7. Estoppel in Pais.</p> <p>Princixdes of estox-Tel in -pais discussed, Qi. 571.)</p> <p>8. Estoppel— Tiñe.</p> <p>If one claiming sole right to another’s land spends money in improving or operating upon it, though ignorant oí that other’s right, the mere silence of that other will not estop him from asserting his title. He need not seek the other to tell him of his right, or speak at all, unless placed in such a situation as calls upon him to declare his right, (p. 574.)</p> <p>9. Judicial Sale — Purchaser—Notice.</p> <p>A purchaser at a judicial sale is conclusively held as having notice of all facts touching the rights of others in the property sold, disclosed by the record of the case. (p. 574.)</p> <p>10. Suits to Sell Realty— Parties.</p> <p>Owners of vested estates in reversion and remainder, whether by legal or equitable title, are indispensable parties to a chancery suit to sell the fee; and the presence as parties of a tenant for life, or of the trustee holding for them, does not make them parties by representation, and a sale under the decree will not affect or pass their right in the land, (p. 576.)</p> <p>11. Mabbiei) Woman — Estoppel in pais — Personal lístale.</p> <p>A married woman can not, by even fraudulent conduct, be barred under the principle of estoppel in pais from asserting her title to land, though separate estate; but as to her personal estate it is different. Now that she is enabled to contract as if single, she will be bound by estoppel inpai's touching her contracts as if single, (p. 577.)</p> <p>12. Ineants — Estoppel in pais — Fraud.</p> <p>An infant of years of discretion, by intentional fraudulent conduct, will be barred, under the doctrine of estoppel in pais, from asserting her title to either, real or personal property against one misled thereby, (p. 579.)</p> <p>13. Waste — Oil—Accounting.</p> <p>A tenant for life, or a tenant in common in sole possession claiming exclusive ownership, taking petroleum oil, and converting it to his exclusive use, is liable to account on the basis of rents and xn'oflts, not for annual rental, (p. 580.)</p> <p>14. Equity Jurisdiction — Injunction— Waste — Damages.</p> <p>A remainder-man or reversioner has jurisdiction in equity against a tenant for life to enjoin waste, and to have compensation for the damages, the same as if he sued at law, to avoid multiplicity of suits. The same is the case between tenants in common where one is guilty of waste, (p. 579.)</p> <p>16. Waste — "Payment of Proceeds — Interest.</p> <p>A tenant for life, who, by waste, has severed from the realty things that are part of it, as petroleum oil, has no right to have their proceeds invested so he may have interest therein during' the life estate, hut their proceeds go at once to the-owner of the next vested estate of inheritance, (p. 585.)</p> <p>16. Improvements — Allowance for Improvement».</p> <p>One making permanent improvements on land as if his own, at a time when there was reason to believe his title good, is to be allowed their value, so far as they enhance the value of the land-; but if, when making- them, he has notice, actual or constructive, of the superior right of another, he cannot be allowed them. (p. 588.)</p> <p>17. Title — Allowance for Improvement».</p> <p>One having notice of facts rendering his title inferior to another’s, who, by mistake of law, regards his title good, can not claim for permanent improvements, (p. 590.)</p> <p>18. Oil — Waste—Set-Off—Rents and Profits.</p> <p>Under the circumstances, a party taking petroleum oil unlawfully'is allowed all costs of production, including costs of boring productive wells, as a set-off against rents and profits. (p. 588.)</p>

<p>1. CONSTITUTIONAL Law — Commissioners of County Court — Removal of County Officers.</p> <p>Chapter 48, Acts 1897, allowing proceedings for removal of commissioners of the county court by proceedings in the circuit court, is constitutional, (p. 595.)</p> <p>2. PROHIBITION — Jurisdiction of Lower Court.</p> <p>Does prohibition lie merely because the jurisdiction of the lower court depends on the question whether a statute giving-it jurisdiction is constitutional? Per Brankost, Judge, it does not lie. (p. 598.)</p>

Petition of one Eastham for a writ of prohibition directed to one Holt, judge of the Circuit Court. 'Writ-denied by operation of law, because of a divided Court.

<p>1. Habeas Corpus — Bail.</p> <p>Gan the Supreme Court of Appeals admit to bail upon habeas corpus'? (p.638.)</p> <p>2. Bail — Homicide.</p> <p>As to bail in a murder case. (p. 639.)</p>

<p>1. Actions — Joint Actions — Joint Tort Feasors.</p> <p>Where two contiguous buildings fall upon and crush a third, h,v reason of the co-existent and concurring- negligence of the respective owners thereof to keep their separate walls in repair, the owner of the injured building may maintain a joint or separate suit against the owners of the .defective buildings, (p. 644.)</p> <p>2. Insane PERSON — Committee—Duty of Committee.</p> <p>Under section 37, chapter 58, of the Code, it is the duty of the committee of an insane person to sue for injuries done to the real or personal estate of his ward. (p. 645.)</p> <p>3. Tenant fob Libe — Injuries to Realty — Damages.</p> <p>A life tenant in possession is entitled to sue for damages done the property, by which the rental value thereof is diminished or destroyed. The measure of damages, as in other cases, is the amount necessary to make good the loss, which must be determined by the jury from the facts and circumstances shown in evidence, (p. 646.)</p>

<p>Appeal from Circuit. Court, Wood County.</p> <p>Bill by D. M. Miller against John A. Flare. From a decree confirming the commissioner’s report in plaintiff’s favor, defendant appeals.</p>

<p>1. PLEADING — Negligence—Evidence.</p> <p>A declaration for tort arising' from negligence may allege the mere negligence generally, without stating the particular facts going to prove negligence, hut must specify with reasonable certainty the main or primary act of omission or commission doing the damage; and the allegation that the defendant did the particular act causing the damage furnishes the predicate or basis for evidence of all such incidental facts and circumstances of omission and commission as fairly tend to establish the negligence of the primary act, and to plead them specially would be to plead mere evidence instead of facts, (p. (562 )</p> <p>2. Pleading — Negligence—Evidence—Variance.</p> <p>Where a declaration based on negligence states a particular act as the cause of the damage, no evidence of other acts causing it can be given, (p. 666.)</p> <p>3. N egligenoio — E v idence.</p> <p>There must be reasonable evidence of negligence. "But where a thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose-from want of care. (p. 667.)</p>

<p>1. Criminal Law — Instructions—Circumstantial Evidence.</p> <p>In a case where the evidence is entirely circumstantial, it is error in the court to instruct the jury that circumstantial evidence is often more reliable than the direct testimony of eye-witnesses, and that a verdict of guilty in such cases may rest on a surer basis than when rendered upon the testimony of eye-witnesses where memory must be relied upon, and where passions and prejudices may have influenced them, for the reason that it institutes a comparison between the two kinds of evidence mentioned, and instructs the jury as to the comparative weight of circumstantial evidence, (p. 677.)</p> <p>2. Criminal Law — Instructions—Credibility of Witnesses.</p> <p>It is error in the court to instruct the jury that, if they were of the opinion that any witness had willfully and corruptly testified to what was false, they were at liberty to reject all of his testimony that was not corroborated by other testimony, for the reason that said instruction was calculated to mislead the jury, and was equivalent to telling them that, where a witness had sworn falsely in one thing’, the remainder of his testimony should have no weight with them unless corroborated, when they had a right to believe any portion of the testimony, whether corroborated or not, and the instruction invades the province of the jury. Thompson's Case, 21 W. Va. 741. (p. 677.)</p> <p>3. Evidence — Opinion Evidence.</p> <p>The opinions of witnesses should never be received in evidence if all the facts can be ascertained and made intelligible to the jury, or if they are such as men in general are capable of comprehending and understanding, (p. 683.)</p> <p>4. Evidence — Opinion Evidence — Province of Jury.</p> <p>The general rule is that witnesses must testify to facts, and not to opinions. They must only state facts, not draw conclusions or inferences. To do so is to.invade the province of the jury. (p. 689.)</p> <p>6. Expekt Testimony.</p> <p>The object of all questions to experts should be to obtain their opinion as to matters of skill or science which are in controversy, and at the same time to exclude their opinions as to the effect of the evidence in establishing controverted facts, (p. 684.)</p> <p>6. Expert Testimony — Hypothetical Questions.</p> <p>Although an expert may have heard all the testimony in the case, he can not be asked to give his opinion, based merely upon his having heard such testimony in the case, whenever there is a conflict therein, unless the same is hypothetically propounded to him. (p. 684.)</p> <p>7. Expert Testimony — If¡/pothetieal Questions.</p> <p>An expert can not be asked to give his opinion on doubtful facts in the case on trial, which remain to be found by the jury, but a similar case may be hypothetically put to him, based upon the evidence in such ease. (p. 688.)</p> <p>8. Expert Testimony — A dmissibility of Expert Testimony.</p> <p>Where the inquiry relates to a subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled or scientific witnesses is not admissible, (p. 687.)</p> <p>9. Evidence — Illegal Evidence — Reversal.</p> <p>Where illegal evidence is admitted against the objection of a party it will be presumed that it prejudiced such party, and, if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for the reversal of the judgment; but, if it clearly appear that it could not have changed the result if it had been excluded, it will not be cause of reversing the judgment, (p. 690.)</p>

<p>Appeal from Oirciiit Court, Harrison County.</p> <p>Suit by Ingaby M. Windon agaist William A. Stewart, as Ms guardian. Decree for plaintiff and defendant appeals.</p>

Action by the Kanawha Coal Company against the Ballard & Welch Coal Company and others for an injunction and the appointment of a receiver. There was a decree for plaintiff, and defendants appeal.

<p>Error to Circuit Court, Taylor County.</p> <p>Action by Weimer, Wright & Watkins against. W. A. Rector and E. L. Rector. Plaintiffs had judgment. Defendants bring error.</p>

Court, Hardy County. Bill by JR. L. Coleman, Emma P. Coleman, and William S. Parran agaist Nina A. Parran and others, in equity, for partition and sale of land. Plaintiff's had a decree and the defendants, J. C. Parran and W. V. I). Parran appeal.

<p>1. Remand fob Want op PARTies — Bill in Equity.</p> <p>When a chancery cause is remanded from this Court to the circuit court for the want of necessary and proper parties, and after the cause is again docketed in the circuit court such necessary and proper parties appear, and flle answers to the plaintiff’s bill, it is not necessary to send the case to rules for that purpose, (p. 759.)</p> <p>2. REFERENCE — Accounting.</p> <p>The circuit court may state an account in a chancery cause without an order of reference to a commissioner, if there is sufficient data and evidence in the cause to enable it to properly do so. (p. 760.)</p>

¡Suit by Benjamin F. Hoffman against James B. Fleming and others to set aside a deed. From a decree against them, James B. Fleming and his wife appealed.

<p>1. Deed — Death of Vendor — Revocation.</p> <p>A deed duly executed and delivered, which conveys the legal title to real estate to a vendee, although a mere power to sell, is not revoked by the death oí the vendor, (p. 768.)</p> <p>2. Equity JURISDICTION — Payments—Reversion.</p> <p>A court of equity will not prematurely determine to whom a sum payable in the future, the payment of which is' optional with the payor, will be coming, or, in default of the payment thereof, to whom the title to real estate forfeited thereby will revert at a remote future time. (p. 769.)</p>

<p>Error to Circuit Court, Preston County.</p> <p>Action by John E. Sisler against Gus J. Shaffer. Plaintiff had judgment. Defendant brings error.</p>

<p>i. CONTEMPT — Power to Punish — Summary Punishment.</p> <p>The common-law power of all courts, except the Supreme Court of Appeals, to punish for contempt summarily, — that is, without indictment and jury, — is curtailed by section 27, chapter 147, Code 1891. Summary punishment, as at common-law, can be imposed by such other courts only in cases therein allowed, (p. 774.)</p> <p>2. PARTIES — Nets Trial — Petition—Strangers.</p> <p>There is no right in citizens and taxpayers not parties to a suit to petition for a new trial or other action therein. There is no right to petition a court “for redress of grievances” by strangers to the ease. That right is applicable only to political bodies, (p. 776.)</p> <p>3. ATTORNEY AT LAW.</p> <p>An attorney at law is an officer of the court, under clause 3, s. 27, e. 147, Code 1891. (p. 774.)</p> <p>4. Contempt — Petition—New Trial. '</p> <p>The mere drafting- by an attorney of a petition, by persons not parties to a cause, asking in respectful language a new trial, is not a contempt, (p. 775.)</p> <p>5. Contempt — Official Act.</p> <p>To punish an officer of a court for misbehavior under clauses, s. 27, c.147, Code 1891, the act must be done in his official character, (p. 777.)</p> <p>6. Contempt — Rule—Procedure for Contempt.</p> <p>If a person be present in court when fined for contempt, a rule need not be served upon him, but he must be allowed to make defense, except, for acts done in the open presence of the court, (p. 777.)</p>

<p>■ Appeal from Circuit Court of Taylor County.</p> <p>Bill by Adolphus Armstrong against Thornsbury Bailey and others. From a decree for defendants, plaintiff appeals.</p>

Bills by H. H. Cox against Hallie L. Horner and others. From a decree dismissing his petitions to set aside a decree of seizure and sale, W. W. Wall appeals.

Bill by W. D. Prim and Frank Brown, partners as Prim & Co., against Elijah McIntosh and others, for cancellation of deed and the sale of -land. Prom a decree for plaintiffs, defendant Mary A. McIntosh appeals.

Bill by Rebecca Hunter and others against the town of Charles Town and others. From a decree for defendants, plaintiffs appeal.

Trespass on the case by Samuel L. Webb against the Big Kanawha & Ohio River Packet Company. Plaintiff had judgment. Defendant’s motion to set aside the verdict and grant a new trial was overruled, and he brings error.

<p>1. JUSTICE OR the Peaoe— Detinue— Verdict — Judgment.</p> <p>A verdict in an action for the recovery of personal property before a justice or on its appeal must find the value of the property, and of each article sued for, as in the action of det-inue, and the judgment must do so. (p. 820.)</p> <p>2. JDetiNue— Verdiot — Judgment.</p> <p>A judgment in an action for the recovery of personal propty before a justice, or on its appeal, or in the formal action of detinue, which is only for the sum found by the verdict as the value of the property, is erroneous. It should be for the property, if to be had, and, if not, then its value, (p. 820.)</p> <p>3. Plead m« — JError.</p> <p>It is not reversible error that there was no plea or issue in an action before a justice, either in the justice’s court or on appeal, where there was a full trial as if on plea and issue. (p. 819.)</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill by Thomas J. Wilson and othérs against Susanna Youst and others. From a decree dismissing their bill, plaintiffs appeal.</p>