Volume 45 — West Virginia Reports

<p>Appeal from Circuit Court, Brooke County.</p> <p>Action by S. George and others against J. E. Curtis and others. From a judgment for plaintiffs, defendants appeal.</p>

Bill by the Grafton & Greenbrier Railroad Company against Reuben Davisson for an injunction and equitable relief. From a decree for defendant, plaintiff appeals.

<p>Appeal from Circuit Court, Monroe County.</p> <p>Action by Frank N. Mann against C. L. Peck and others. Judgment for plaintiff, and defendant Jesse Jones appeals.</p>

<p>l. Oil Lhask — Construction of Idease — Title of Lessee.</p> <p>A lease for the purpose of operating- for oil and g-as for the period of five years, and so much longer as oil or gas is found in paying quantities, on no other consideration than prospective oil royalty and g-as rental, vests no present title in the lessee except the mere right of exploration; but the title thereto, both as to the period of five years and the time thereafter, remains inchoate and contingent on the finding, under the explorations provided for in such lease, oil and gas in paying quantities, (p. 34.)</p> <p>Oil L, basic — Title of Lessee — Nonproductive Well.</p> <p>The completion of a nonproductive well, though at great expense, vests no title in the lessee, (p. 36.)</p> <p>3. Oil Lijase — Construction of Lease.</p> <p>Such lease must be construed as a whole, and if there is no provision therein contained requiring- the borings of another well after the first unsuccessful attempt is completed and abandoned, the lease becomes invalid, and of no binding-force as to any of its provisions, (p. 35.)</p>

<p>i. Building and Loan Ass’n — Foreign Building and Loan Ass’n — Domestic Building and Loan Ass’n.</p> <p>Foreign building associations legally doing business in this State have the same rights, powers, and privileges, and are subject- to the same regulations, restrictions, and liabilities as domestic associations, (p. 40.)</p> <p>2. Building and Loan Ass’n —Premiums on I^oans.</p> <p>Building associations are authorized to adopt by-laws fixing a minimum premium at which to award loans to their members, such premiums to be deducted from the loans in advarice or paid in periodical installments, (p. 41.)</p> <p>3. Building and Loan Ass’n — Usury—Constitutional Latv</p> <p>Section 26, chapter 54, Code, in so far as it exempts building>associations from the operation of the general law in relation to usury, is not unconstitutional, (p. 41.)</p>

<p>Application by the city of Charleston for a writ of prohibition against.F. A. Guthrie, Judge, and George Beller.</p>

<p>Railroads — Accident—Damages.</p>

<p>1. Taxation — Set-off—individual Debts — Sheriff.</p> <p>A taxpayer cannot set off the sheriff’s individual indebtedness to him, even though the sheriff has settled with the State treasury for such taxes, (p. 62.)</p> <p>2 Forthcoming Bond — Set-Off—Individual Debts — Sheriff.</p> <p>No set-off of the sheriff’s individual indebtedness can be allowed against a forthcoming' bond given on the levy of taxes, under Acts 1893, c. 23. (p. 60.)</p> <p>3. Contracts —Public Policy — Sheriff —Attorney - Taxation.</p> <p>A contract between a sheriff and a taxpayer, by which the taxpayer is to act as a sheriff’s attorney at a fixed sum, to be applied on the taxpayer’s taxes, is against public policy, and a court will not apply it as payment on the taxes, (p. 61.)</p> <p>4. Contracts— Statute of Frauds — Quantum Mencit.</p> <p>A contract to render personal services for a longer term than one year is void, under the statute of frauds, and no suit can be maintained upon tire contract itself; but, after performance of the service, there may be recovery of its worth upon a quantum meruit, (p. 62.)</p>

<p>1. Criminal Law — Trial—Prisoner in Manacles — Court's Discre-, tion. I</p> <p>While the practice of keeping- a prisoner manacled when on trial before a jury has always been held in disfavor in England, and also in this country, yet the trial court has a discretionary power therein, but a power which should not be exercised under ordinary circumstances, or in any case where the prisoner is not violent and obstreperous, or escape be threatened; and such restraint should not be imposed except in cases of immediate necessity. (p. 68).</p> <p>2. Criminal Law — Prisoner in Manacles — Record—Court's Discretion.</p> <p>When the record is silent as to whether there was or was not any valid excuse for retaining the irons upon the prisoner during trial, the appellate court will presume that the court below exercised a sound and reasonable discretion in not causing them to be removed, (p. 69). -</p> <p>3. Criminal Law — Pleading in Person — Felony—Record.</p> <p>A prisoner indicted for felony should be present in court, and should plead in person, and the record should show that fact. (p. 70).</p> <p>4. Criminal Law — Pleading in Person — Record.</p> <p>When the record shows that such prisoner was led to the bar of the court in the custody of the sheriff, and “thereupon the prisoner, for plea, says that he is not guilty in manner and form as the state in her indictment ¡against him has alleged, and of this he puts himself upon the country, ” it is sufficiently shown that he pleaded in person. (p. 70).</p> <p>5. CRIMINAL Law — Record—Presence of Prisoner.</p> <p>Where the record .shows that at the beginning; of the trial in any day’s proceedings the prisoner was set to the bar in the custody of the sheriff, it will be presumed that he was present during the proceedings in the case the whole day, although it does not show at the close of the day’s proceeding's that the prisoner was remanded to jail. (p. 71).</p> <p>6. Argument ok Counsel— Court’s Discretion — Record.</p> <p>Counsel necessarily have great latitude in the argument of a case, and it is, of course, within the discretion of the court to restrain them; but with this discretion, the appellate court will not interfere, unless it clearly appears from the record that the rights of the prisoner were prejudiced by such line of argument, (p. 74). -</p> <p>7. Instructions — Error.</p> <p>When an instruction of the court assumes certain things as facts, and is in such shape as to intimate to the jury what the judge believes the evidence to be touching such facts, it is error to give such instruction, although it may propound the law correctly. (p. 75).</p>

<p>1. Vendor’s Lien — Discharge—Deed of Trust — Construction.</p> <p>The holder of a vendor’s lien joins with the owner of the land charg-ed with such lien in a deed of trust granting- the land by the words, “grant, bargain, sell, and confirm,” to a trustee in trust to secure a debt to a third party, and to pay the balance of proceeds of sale under it to the owner of the land owing the vendor’s lien. Such deed of trust will discharge the vendor’s lien as to both the debt secured by the deed of trust and the owner of the land. Such deed of trust is as to the owner of the land a grant, and as to the holder of the lien a confirmation, (p. 83).</p> <p>2. Vendor’s Lien — Deed, of Trust — Construction.</p> <p>Such deed of trust, containing no words of limitation, operates, under section 8, chapter 71, Code, and section 1, chapter 72, Id., to pass the whole estate or interest of the grantors in the land, including such lien, for the purposes specified in the deed of trust. ' (p. 84).</p> <p>3. Chose in Action — Assignment.</p> <p>The first cissigneeofa chose in action has preference, (p. 85).</p> <p>4. Merger.</p> <p>Where a greater and less estate unite in the same person, without intermediate estate, the less at once merges into the greater, (p. 88).</p> <p>5. Purchaser eor Value.</p> <p>A purchaser for value without notice, having obtained a conveyance, will not be affected by a latent equity by lien, incum-brance, trust, fraud or other claim, (p. 87).</p>

Action by Georg-e Bodkin and others against George J. Arnold in ejectment. From an order setting aside a verdict for plaintiffs and granting a new trial, they bring error.

Suit by Blnoch Brewer against Warwick Hutton, administrator, and others for a settlement of the accounts and distribution of the estate. There was a decree against plaintiff, and he appeals.

Bill by the Kanawha, Glen Jean & Eastern Railroad Company against the Glen Jean, Lower Loup & Deep Water Railroad Company for an injunction and equitable relief. From a judgment for plaintiff, defendant appeals.

Bill by' William Richardson and others against A. B. Graham and others for a receiver and equitable relief. From a decree for plaintiffs, defendants appeal.

<p>Error to Circuit Court, Tyler County.</p> <p>Action by W. H. Roberts against M. A. and D. Bettman on covenants in a lease. From a judgment for plaintiff, defendants bring error.</p>

Suit by H. Childs & Co. and others against John R. Dun-fee and another to enforce a judgment. There was a decree for plaintiffs. Defendant’s bill of review was dismissed, and they appeal.

Bill in equity by the Bank of Berkeley Springs against Charles S. Green and others. From a decree sustaining a demurrer to the bill, and a judgment dismissing the cause, plaintiff appeals.

Application by Frank H. Harmison for a writ of mandamus directed to the ballot commissioners of Jefferson. Judgment for petitioner, and the commissioners ask for a writ of error.

<p>Error to Circuit Court, Randolph County.</p> <p>Action by James A. Bent against Lipscomb & Lipscomb. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Implied Trust — Husband, and Wife — Equity.</p> <p>Where a tract of land is owned by a husband and wife, the same being- part of a larger tract, she owning as her seperate estate four-ninths and he two-ninths, and she joins with him in the execution of a deed of trust on the entire six-ninths to secure the payment of a debt owed by the husband, and dies before the debt falls due, leaving children, and when the trustee proceedsto sell the entire six-ninths, conveyed to him, if collusion is shown between him and the truseee, and it appears the sale is made only for the purpose of conferring title on him, equity will consider and treat him as a trustee for the children who inherited said four-ninths, subject to the trust as to said four-ninths. (p. 193).</p> <p>2. Implied Trust — Husband’s Debt — Husband and Wife — Security.</p> <p>Where the debt secured by such trust was the debt of the husband, and the wife’s property was only included in the trust deed as an additional security, equity would require that the husband’s portion of the property should be exhausted before selling the wife’s property, (p. 190).</p>

Suit by T. K. Knight and others against the town of West Union and others. Decree for defendants, and plaintiffs appeal.

Action by Carrie Williams against the board of education of Fairfax district, in the County of Tucker. Judgment for plaintiff, and defendant brings error.

<p>i.' Equity — Laches—Commissioner in Chancery.</p> <p>By a decree confirming- a sale of land, two commissioners are appointed to collect and disburse the purchase money on the claims thereto, fixed and determined by a former decree. One of the commissioners permits the other, who is the attorney for the claimants, to collect and disburse the purchase money, while he remains passive. Ten years after the death of the active commissioner, twenty-seven years after the date of their appointment, and thirty-one years after the decree fixing- the claims and liabilities, the inactive commissioner files a bill to ascertain whether any of the purchase money remains unpaid, and, if so, to resell the land, but fails to allege or show that any of the purchase money remains unpaid, or that any of the claims against the same remain unsatisfied. Such bill is demurrable- for want of equity. (p. 206),</p> <p>2. Review on Appeal.</p> <p>Issues not determined by the circuit court will not be considered by this Court on appeal, (p. 207).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by E. W. Alexander against John Marling-. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Bill by John W. Brown and Mary J. Brown against Henry Miller’s executors and others. Decree for defendants, and plaintiffs appeal.</p>

Bill by Fred Fouse against Elizabeth M. Gilfillan and others. A decree was rendered from which complainant and defendant Herman Fouse appeal.

<p>Error to Circuit Court, Ohio County.</p> <p>Action by C. F. Galloway against the Standard Fire Insurance Company. Judgment for defendant, and plaintiff bi'ings error.</p>

<p>1. Specific Pefoemance — Oral Contract — Evidence—Sale of Land.</p> <p>The evidence must be clear, full, and free from suspicion to enable a court of equity to enforce an oral contract for the sale of land. (p. 248).</p> <p>2. Resulting Trust — Title—Equity—Payment.</p> <p>To raise a resulting-trust for one paying- purchase money for land when title is taken in the name of another, the trust must arise from equity principles, at the moment title passes, and no subsequent payment will create it; nor will a subsequent agreement by the party holding title to hold in trust raise such trust, (p. 249).</p> <p>3. Resulting Trust — In Loco Parentis — Loan.</p> <p>A resulting- trust will not arise in favor of one paying for Land conveyed to another, if that other be wife or son or other iierson as to whom tlie one paying voluntarily places himself in loco paren-tis in the transaction. A resulting trust will not arise in favor of one paying for land conveyed to another where such payment is only a loan to such other person, (pp. 249, 2S0).</p> <p>4. Resulting Trust — Subrogation—Lien.</p> <p>Where it appears clearly that, in paying for land by one with conveyance to another, the party paying intended to make a gift or confer a benefit, no resulting trust arises in his favor. To warrant subrogation in favor of one paying a debt as surety or otherwise, tlie debt paid must have been a lien on the land, (p. 250).</p> <p>5. Suit to Charge Land — Fraudulent Purchaser — Decree—Costs.</p> <p>In a suit to charge land in the hands of a fraudulent purchaser with money, he yet holding the land, that must be subjected; and there cannot be a personal decree against him for the money, though there may be for costs, if the land does not pay the money and costs. If he has sold, he may be charged with the proceeds, (p. 250).</p>

<p>1. Deed — Will—Construction of Writing — Death of Maker.</p> <p>The rule of construction for determining- whether an instrument is a will or testamentary paper or a deed is that, if it passes a present interest, though the right to possession or enjoyment does not accrue till the death of the maker, it is a deed or contract, but, if it does not pass any interest or title whatever till his death, it is a will or testamentary paper, not a valid deed or contract. Section S, chapter 71, Code 1891, does not change this rule. (p. 253).</p> <p>2. Deed — Will—Construction of Writing — Intention of Maker.</p> <p>In determining whether an instrument is testamentary or deed or contract, courts do not allow language peculiar to either class of instrument, nor even the belief of the maker as to the character of the instrument, nor the name he gives it, to control inflexibly its construction; but, giving due weight to these circumstances, courts look further, and, weighing1 all the circumstances surrounding the parties and attending the execution of the instrument, give to it such construction as will effectuate the manifest intention of its maker, (p. 253).</p> <p>3. Deed — Delivery of Deed — Vested Remainder,</p> <p>An instrument in form and name a deed of conveyance, acknowledged as such, and delivered to the grantee, whereby, for consideration of five dollars and love and affection, the grantors “do grant with general warranty” a tract of land closing with the clause, “But it is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the said William Logan shall depart this life, and not sooner,” is a valid deed, not a testamentary paper, and con - fers a vested remainder on the grantee, to come into enjoyment on William Logan’s death, (p. 255).</p> <p>4. Livery of Seisin.</p> <p>Section 1, chapter 116, Code Va. 1849, taking effect 1st of July, 1850, abolished livery of seisin, (p. 260).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by John S. Ritz against the City of Wheeling. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Wood county.</p> <p>Bill by Thomas S. and E. J. Savage against the People’s Building, Loan and Savings Association. Decree for plaintiffs, and defendant appeals.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Assumpsit by James B. Swing, trustee, against the Bentley & Gerwig Furniture Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>CORPORATIONS —Foreign Corporation — Dissolution— Trustees— Actions.</p> <p>A receiver, trustee, or assignee of a dissolved foreign 'corporation appointed in the state of its domicile may institute in the courts of this State suits in his own or the corporate name for debts or claims due such corporation, (p. 289).</p> <p>Corp orations — Foreign Corporation — Receivers- -Appointment of Receivers.</p> <p>Circuit courts of this State are authorized by sections SS, 59, chapter 53, Code, in proper cases therein set forth, to appoint receivers for and wind up the affairs of foreign corporations who have done business, acquired property, and contracted debts in this State. The law on this subject, as propounded in the case of Nimick v. Iron Works Co., 25 W. Va., 184, has been supei'-seded by chapter 39, Acts 1885. (p. 289).</p> <p>Corporations — Foreign Corporation— Insurance Premiums— Recovery.</p> <p>Before a receiver or trustee of a dissolved foreign corporation can recover on a premium note a quasi ex parte assessment, he must show that the conditions precedent to such recovery contained in such note have been fully satisfied. (p. 289).</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by William E. Watson, executor of Thomas F. Watson, against J. C. Watson. From a judgment dismissing the action, plaintiff brings error.</p>

Bill by George C. Williams and others against W. B. Maxwell and others. A decree was rendered, from which defendant Maxwell appeals.

Bill by the Zell Guano Company and others against Samuel J. Heatherly and others. A decree was entered, from which plaintiffs appeal.

Bill by J. M. Anderson against Henry & Linkous to administer assets. Hannah Grinberg presented a claim. From a decree allowing only a part thereof, she appeals.

<p>1. Supreme Court of Appeals — Jurisdiction.—Municipal Council —Certiorari.</p> <p>This Court has appellate jurisdiction in all cases of certiorari awarded by the circuit court in review of matters and proceedings pending before or determined by a municipal council, (p. 328).</p> <p>2. Return — Certiorari— Waiver.</p> <p>Before hearing a case, matter, or proceeding removed by cer-tiorari from an inferior tribunal the circuit court should require a formal legal return thereto to be made by the officers to whom the same is directed, unless such return is waived by the parties to such case, matter, or proceeding', (p. 330).</p> <p>3. Record — Evidence—Bill of Exceptions — Review on Appeal.</p> <p>Evidence of witnesses heard by such inferior tribunal is not part of the record, unless made so by a proper order or bill of exceptions showing such evidence duly certified and authenticated. .Where such is not the case, the circuit court cannot review the action of the inferior tribunal on its merits, (p. 331).</p> <p>4. Contested Election — Municipal Office — Notice of Contest.</p> <p>A notice of contest as to a municipal office which shows that the contestant was the opposing candidate for such office is not fatally defective in not showing that the contestant had the requisite statutory qualifications. The statute relating to contests for county and district offices makes this a matter of defense on the part of the contestee. (p. 332).</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Bill by Eda Gibney and others against James Fitzsim-mons and others. Decree for complainants. Defendants appeal.</p>

<p>1. Bill in Equity — Denmrrer—Stale Demand — Dismissal.</p> <p>“The defenses of the statute of limitations and laches and stale demand” being- proper grounds for demurrer, a bill setting up a stale demand, -without alleging any reasonable excuse for delay in the assertion thereof, should be dismissed for want of equity, unless properly amended, (p. 348).</p> <p>2. Presumption of Payment- -Lapse of Time — Bill in Equity— Stale Demand.</p> <p>Where the presumption of payment arises by reason of the lapse of twenty years’ time, a bill seeking enforcement of such stale demand must set up facts and circumstances sufficient to rebut such presumption, or it will be demurrable. Jacksoti v-Hull, 21W. Va., 601. (p. 348).</p>

<p>1. Corporations — Board of Directors — Assignment for Benefit of Creditors — Stockholders.</p> <p>The directors of a corporation in this State have no power to direct the assignment of the entire property owned by such corporation to a trustee for the payment of its creditors, without the consent of the stockholders. (p 3S3).</p> <p>2. Corporations — Suits Against Officers —Parties.</p> <p>Where suit in equity is brought by certain stockholders against the directors, and such directors, the president and all the stockholders are before the court, it is unnecessary to make the corporation a party by name, the object of the suit being to protect the interest of the stockholders from the unauthorized acts of the directors. (p. 351).</p>

Suit by Patrick O’Connor against J. P. O’Connor, the Roaring Creek Coal & Coke Company and others, to set aside conveyances of land as fraudulent. From a decree in favor of the coal and coke company, John L. Hechmer, plaintiff’s administrator c. t. a., appeals.

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by Robert G. Styles, administrator of W. C.'Styles, against the Laurel Fork Oil & Coal Company and others. Decree for plaintiff, and defendants appeal.</p>

<p>1. Lijase — Surrender of Lease.</p> <p>I£ a lessee for life or years take a new lease- of the reversioner for a longer or shorter term than before, it is a surrender of the first lease, (p. 381).</p> <p>2. Lease — Option■—Surrender of Lease.</p> <p>A lease yielding- rent and an option to purchase the fee outright are not inconsistent, and the taking such lease during the the term of the option will not abrogate or surrender it. (p. 383.)</p> <p>3. Lease — Option—Election to Purchase.</p> <p>Where there is a lease for years with rent, and an option to purchase the fee, an election to purchase under the option, and tender of the purchase price under it, ends the lease and its rent, (p. 383).</p> <p>4. Tenancy — Tenant for Life — -Parchase of Reversion.</p> <p>A purchase d£ the reversion in fee by a tenant for years ends the tenancy, and the tenant is not thereafter estopped from denying further continuing title or rent in the landlord. (p 383).</p>

<p>1. Bill of Exceptions — Signing—Appellate Court.</p> <p>A Bill of exceptions must be signed by the judge, else it cannot be considered in the appellate court, (p. 385).</p> <p>2. Bill of Exceptions — Record—Attestation by Clerk.</p> <p>The record entered in the law order book of a circuit court must attest that a bill of exception was executed and made part of the record, else such bill cannot be considered, though inserted in the record by the clerk. (As to exceptions shown by order, where there is no bill of exceptions.) (p. 386).</p> <p>3. Foreign Corporations — Service of Process — Return—Amendment of Return.</p> <p>A return of service of a summons in an action against a foreign insurance or'pther corporation upon an attorney appointed by it to accept service of process must show that he is the attorney so appointed to accept service of process. A return showing a delivery of a summons to “Alf. Paul, attorney in fact and of record for said Globe Fire Insurance Company,”is bad,in not designating-for what purpose he is attorney. Judgment on it is void. The return may be amended, (pp. 386, 389).</p> <p>4. Service of Process — Acceptance of Service.</p> <p>“Service accepted, Sep. 6, 1897. Alf. Paul,” is a bad acceptance. (p. 388).</p> <p>5. INSURANCE — Proof of Loss — Condition Precedent.</p> <p>A policy of insurance provides that proof of loss shall be furnished in sixty days after loss, and the loss payable in sixty days after such proof furnished. The furnishing such proof is a precedent condition to action or recovery, if not waived, and the plaintiff carries the burden of showing that such proof was fur- ’ nished; but he need not show it unless the defense has pleaded the failure to furnish such proof, (p. 388).</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by K, B. Bartlett against the town of Clarksburg. From a judgment sustaining a demurrer, plaintiff brings error.</p>

Bill by William W. Parker and others against M. A. Brast and others to recover possession of land claimed in co-tenancy. From a decree in favor of complainants, defendants M. A. and Amos E. Brast appeal.

Trespass on the case, by A. F. Schwartz against L. E. Shull and others. There was a judgment for plaintiff and defendant brings error.

<p>1. Constitutional Law — Taxation—Forfeiture—Due Process of Law.</p> <p>That clause of section 6, Art. XIII, of the State Constitution, forfeiting land for the failure of the owner to enter it for taxation, is not in violation of that clause of the fourteenth amendment to the federal constitution restraining- states from depriving- any person of life, liberty, or property without due process of law. (p, 417).</p> <p>2. Constitutional Law — Due Process of Law.</p> <p>The fourteenth amendment to the federal constitution does not itself define “due process of law. ” What was such before its adoption continues such It does not prohibit a state from future, new legislation, action, or proceedings necessary, in its judgment, in the administration of its government, so it bear alike on all similarly circumstanced, and be not unusual, oppressive, or arbitrar}1- action,- assailing the essential rights of the person, (p. 424).</p> <p>3. Due Process of Law — Taxation.</p> <p>Due process of law does not always require judicial hearing. It does in matters of purely judicial nature, but not in matters of taxation or matters purely administrative, (p. 424)</p> <p>4. Due Process of Law- Supreme Cotirt of United States.</p> <p>It is with the Supreme Court of the United States to determine finally whether legislation or action under state authority is due process of law. (p. 424).</p> <p>5. Due Process of Law.</p> <p>What is due process of law? (p. 418).</p> <p>6. Laches — Tax Sales — Possession.</p> <p>Laches will not bar a landowner from assailing a tax sale of his land, when there is no actual possession under the tax title, (p. 431).</p> <p>7. Laches — Statute of Limitations</p> <p>Laches is not imputable to the State. Statutes of limitation now run against the State, (p. 431).</p> <p>8. Tax Sai.es— Warranty — Entry for Taxation.</p> <p>A sale of land for taxes is without warranty by the State, and it is not prevented thereby from setting up its right under forfeiture for omission to enter the land for taxes either before or after the tax sale. (p. 432).</p> <p>9. Tax Sat.es — Estoppel in Pais — Entry for Taxation.</p> <p>If a sale for taxes is made and the tax purchaser pays taxes thei'eafter, the receipt of such taxes will not operate, on the theory of estoppel in pais by conduct, to prevent the State from setting up against the tax purchaser a title to land, by forfeiture, for failure of the former owner to enter it for taxation subsequent to or before the tax sale. If the tax title be valid, it would prevent such forfeiture for taxes after the tax sale from its own force, not on the theory of estoppel, (p. 432).</p> <p>10. Tax Sat.es — Entry for Taxation — Forfeiture.</p> <p>A sale of land for taxes, valid to pass title of the owner, will prevent its forfeiture for failure to enter it for taxes in the name of the former owner for years subsequent to the tax sale. (p. 348).</p> <p>11. Tax Sat.es— List of Sales.</p> <p>An omission, in a list of sales of land for taxes, to state the estate of the owner, will not annul the tax deed. (p. 433).</p>

Bill by P. B. Wethered against C. D. PClliott and others. Decree for plaintiff. Defendant Elliott filed bill of review, which was dismissed. From the decrees he appeals.

Action by Abney, Barnes & Co. against the Ohio Lumber & Mining Company. Attachment awarded, and W. H. Millinger and William Nold, assignees of defendant, filed claim. Findings for the claimant, and from an order refusing to set same aside plaintiffs bring error.

<p>1. Deputy Sheriff — Bond--Contracts—Sheriff.</p> <p>In an action of debt upon a bond executed by a deputy sheriff to his principal, which bond,-on its face, as a part of the condition, recites that said deputy is to act as such during- the term of said sheriff’s office, which bond is accepted by such sheriff, and such deputy proceeds to perform the duties of his office under said bond, and continues to perform said duties 'during- the entire term of said sheriff’s office, said bond must be considered . as a contract between said sheriff and his deputy, (p. 458).</p> <p>2. Deputy Sheriff — Bond—Compensation—Set-Off.</p> <p>Where such action is predicated on a claim that the defendcint has failed to comply with the conditions of his bond by paying-over and accounting for all money which may come into his hands by virtue of his office, the defendant may prove and have allowed as a set-off against said claim, such amount as he may be entitled to for his service as such deputy, if the same are set forth and described in the bill of particulars filed with his plea. (p. 459).</p> <p>3. Deputy Sheriff — Sheriff—Compensation.</p> <p>If the sheriff, during his term of office, and after said deputy has served two years, relieves him of a portion of the duties originally assigned to him, against his protest, but does not remove him, and no change is then made as to the original agreement for compensation, the fact that the labors of such deputy are thus diminished will not necessarily reduce his compensation. (p. 458).</p> <p>4. Deputy Sheriff — Compensation—Breach of Bond.</p> <p>If it appears from the evidence that such deputy, during the four years of his service, performed the portion of the duties of the office of sheriff of Jefferson County which he contracted to do, for the compensation he was to receive under the original agreement, by retaining his pay for such services out of money collected by him, he committed no breach of the conditions of his bond, as he in this manner, accounted for the money that came into his hands, (p. 459).</p> <p>5. Statute of Frauds — Deputy Sheriff.</p> <p>The statute of frauds does not apply, under the circumstances of this case, to defeat the claim of the defendant for his services, (p 458).</p>

Action by H. C. Griffin, assignee of M. Chapman, against M. L. Haught. Judgment for plaintiff, and on appeal to circuit court judgment was again rendered for plaintiff and on the appeal bond. Defendant brings error.

<p>1. Fraudulent Conveyance — Deed of Trust.</p> <p>The syllabus in the case of Grocer Co. v. Williams, 43 W. Va., 323, and in Casto v. Greer, 44 W. Va., 332, are affirmed, (p. 472).</p> <p>2. Fraudulent Conveyance — Deed of Trust — Creditors—Preferred Creditors.</p> <p>Where an insolvent debtor conveys all the property owned by him, being- the equity of redemption in a certain tract of land in trust to secure future repairs to be made thereon, and it does not appear that such repairs added to or enhanced the value thereof, such conveyance will be held void, under section 2, chapter 74, of the Code, as to the preference thereby secured. . (pp. 470, 471).</p>

Action by E. B. Parsons against Aultman, Miller & Co. before a justice of the peace. Judgment for plaintiff. From an order of the círcúít court quashing- the writ of certioi'ari, defendant brings error.

<p>Appeal from Circuit Court, Clay County.</p> <p>Bill by the State against M. A. Cheney and others to sell forfeited lands. Bill dismissed and the State appeals.</p>

<p>Appeal from Circuit Court, Grant County.</p> <p>Bill by the West Virginia Building Company against Thomas J. Saucer. Decree for plaintiff, and defendant appeals.</p>

Bill by the Improvement Loan and Building Association and H. T. Cushwa & Bro., against the Auburn Wagon Company for the administration of defendant’s assets as an insolvent. From a decree postponing the claim of Cushwa & Bro. under the mechanic’s lien to a trust deed, they appeal

Detinue by G. W. Hundley, trustee, against A. N. Callo-way. A judgment of a justice of the peace in favor of defendant was set aside by the circuit court on certiorari., and defendant brings error.

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by C. F. Kenneweg against B.Schilansky and others. Decree for plaintiff, and the H. B. Claflin Company appeals.</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Suit by Walter J. Lambert against B. Nicklass and others. Decree for defendants, and plaintiff appeals.</p>

<p>1, Appe ax— Certiorari — Sound Discretion.</p> <p>The writ of certiorari when awarded in civil cases before justices, under sections 2, 3. chapter 110, Code, is an appellate process, designed to effect the ends of justice ; and the circuit court has a large discretion in awarding the same, reviewing judgments, and granting new trials, thereunder, and unless such discretion is plainly abused, this Court cannot interfere therewith. (p. 537).</p> <p>2. New Tri^ — Evidence—Appeal—Error.</p> <p>If the evidence presents mixed questions of law and fact, material to the issue involved, about which two reasonable men, learned in the law, might differ as to the proper determination thereof, the circuit court commits no appealable error in awarding a new trial, (p. 540).</p> <p>3. New Trial — Review on Appeal — Evidence.</p> <p>If improper testimony in favor of the prevailing party is admitted by the justice, and it be doubtful Whether the same was prejudicial to the opposite party or not, the action of thecircuit court in awarding a new trial will not be reviewed by this Court, (p. 542).</p>

<p>Appeal from Circuit Court, Grant County.</p> <p>Bill bySamuelB. Shank against Samuel Groff andothers. A decree was rendered, from which defendant Given appeals.</p>

<p>Error to Circuit Court, Putnam County.</p> <p>Ejectment by C. A. Vintroux against W. H. timms. There was a judgment for plaintiff, and defendant brings error.</p>

Bill by John Bogg's against Elijah Harper. Pending the suit, the parties died. A decree was rendered, from which Isaac P. Boggs, executor of the original complainant, appeals.

<p>Appeal from Circuit Court, Morgan County.</p> <p>Bill of Harrison Cann against Jacob Cann’s heirs and others. From a decree for complainant, the heirs appeal.</p>

Bills by H. H. Crumlish’s administrator against the Shenandoah Valley Railroad Company and the Fidelity Insurance,Trust & Safe-Deposit Company against the same defendant. From a decree settling the accounts of one McDonald, receiver of an intervening creditor, he appeals.

Mandamus by Charles M. Hebb against the county com-missiomers of Tucker County as a board of canvassers. A peremptory writ issued, and William M. Cayton brings error.

Appealed from Circuit Court, Greenbrier County. Suit between the executrix and the heirs of Ben Hurx-thal, deceased, and others. A decree was rendered from which an appeal was taken.

Assumpsit by the Middle States Loan, Building & Construction Company against John H. Engle and another. The court sustained a demurrer to the third count of the declaration, and plaintiff brings error.

<p>SuhROGAtion — Sheriff—Bond—Sureties.</p> <p>Sureties on the official bond of a sheriff, upon being- compelled to make good the default of their principal, will, by the fact of payment, become equitable assignees, and be subrog-ated to the position of the State in respect of all its securities, liens, and priorities, for the purpose of enforcing reimbursements from their principal, (pp. 610-11-10.)</p>

<p>1. Statute op Limitations — Pleading—Sint in Equity -Judgment Creditor.</p> <p>Where a suit in equity is brought by a judgment creditor to subject the lands of the debtor to the satisfaction of his judgment, and the plaintiff in the bill sets forth the fact that there i s another judgment against'the same defendant older in point time, but which has not been kept alive by issuing executions as required by statute, but the defendant is in life, and does not plead the statute of limitations as to said older judgment, the plaintiff in said suit in equity has no right to file or rely on such plea. (p. 623).</p> <p>2. Statute op Limitations — Pleading—Personal Privilege.</p> <p>The plea of the statute of limitations is, in general, a personal defense, to be made by the party against whom ihe demand is asserted. (p. 624),</p> <p>3. Statute of Limitations — Rights of Stranger — Personal Privilege.</p> <p>A mere stranger to the claim', as a creditor, although he maybe injuriously affected by his debtor’s failure to set up the statute, cannot either set it up himself, or compel his debtor to do so, as in such case the privilegie is personal, (p. 624).</p>

<p>1. Equity — Evidence—False Evidence.</p> <p>The evidence of parties who attempt to impose on a court of equity by false statements, manufactured accounts, or like deceptive practices, should be rejected on the hearing of the cause, (p. 633).</p>

<p>1. Negligence — Natural Gas — Degree of Care.</p> <p>A person or corporation engaged in furnishing' natural gas to stoves, heaters, pipes, etc., for purposes of domestic light, heat, and fuel in a dwelling house, is bound to exercise such care, skill, and diligence in all its operations as is called for by the delicacy, difficulty, and dangerousness of the nature of the business, that injury to others may not be caused thereby; that is to say, if the delicacy, difficulty, and danger are extraordinarily great, extraordinary skill and diligence is required, (p. 647).</p> <p>2. Negligence — Natural Gas — Pressure of Gas — Damages.</p> <p>If the defendant, so furnishing such gas, negligently and carelessly suffer and permit a greater amount of pressure of said gas to be furnished than is reasonably proper for said purpose, by reason -whereof the house or building being so furnished is consumed or injured by fire, resulting from such negligence, ths defendant is liable in damages for such loss. (p. 647).</p> <p>3. Negligence — Natura! Gas —Defective Appliances — Proximate Cause —Damages.</p> <p>If such defendant suffer and permit its regulators or other appliances to be and remain for an unreasonable time in such condition that they do not control the amount and pressure of gas so furnished, so that more than a safe and proper amount of gas is so furnished, the defendant is guilty of negligence, and liable in damages for injuries proximately caused by such negligence. (P 647).</p> <p>4. Negligence — Natural Gas — Proximate Caztse.</p> <p>If such injury is the natural consequence of such negligence, and such as might have been foreseen and reasonably anticipated as the result of such negligence, then such negligence must be regarded as the proximate or direct cause of the injury, in the absence of intervening negligence, (p. 648j.</p> <p>5. Natural Gas — Pressure of Gas — Fire—inference.</p> <p>The mere fact that a building- so furnished with gas was set on fire from the gas is not sufficient to justify the inference that an increased pressure of gas caused the fire. (p. 648).</p> <p>6. Evidence — Natural Gas — Pressure of Gas.</p> <p>In the trial of an action against a corporation so furnishing natural gas to a dwelling house, for damages for causing the destruction of such house by fire by negligently permitting too great a pressure of gas, it is not competent to prove by a witness the bare fact of what pressure the gauge of another gas company usually indicated, (p. 643).</p>

Bill by Maggie Bennett against W. N. Pierce to sell a a tract of land for purchase money. Pierce tendered an answer which was rejected. From a decree on the bill as confessed, defendant appeals.

Bill by J. P. Butler against J. F. Thompson to set aside a fraudulent conveyance from a decree dismissing the bill, complainant appeals.

<p>1. Supreme Court of Appeals — ;Jurisdiction.</p> <p>Where a decree merely pecuniary, and for not over one hundred dollars, is reversed on bill of review or petition for rehearing, this Court has no jurisdiction of an appeal from the decree of reversal, (p. 670).</p> <p>2. Appealable Decree.</p> <p>A decree which adjudicates all the principles of a cause and settles the rights of the parties, leaving nothing further to be done but execute it, is such a decree as will support an appeal from a decree which grants a rehearing of the first decree, (p. 671).</p>

<p>1. Decree — Finality of Decree — Statute of Limitations — Appeal.</p> <p>A decree providing- for the distribution- and payment of money is a final decree, and subject to the statute of limitations relating to appeals, bills of review, and motions to correct nonappealable errors, (p. 676).</p> <p>2. Equity — Decree—Distribution of Funds.</p> <p>If a court of equity takes charge of a large fund brought into a' chancery cause, and enters ageneral decree providing for the proportionate distribution of such fund among the distributees entitled thereto, and in subsequent and intermediate decrees relating to portions of such fund it apparently departs from such apportionment, in its final distribution of the residue of such fund it should so equalize the same as to make such final decree, including all intermediate decrees, conform to the general decree, (p.679).</p> <p>3. Equity — Distribution of Funds — Distributee's Rights.</p> <p>If one of a number of distributees purchases a portion of the property subject to such fund in such suit, she is entitled to have her distributive share applied as a credit on her purchase money notes in the final distribution of the fund, and the courtmaymake such application without her consent, (p. 678).</p>

<p>1. Contracts — Trustee—Fraud—Sale of Land.</p> <p>Where a trustee is proceeding- to make sale of real estate at public auction, and R. and B., after competing as bidders for some time, enter into a verbal agreement that R. shall desist from bidding, and B. should proceed as advised from time to time, and, if B. became the purchaser, he was to divide the property purchased with R., such an agreement is a fraud upon the vendor, and, if B. refuses to comply with the agreement, it cannot be enforced R. (p. 68S).</p> <p>?. Contracts — Sale of Land — Pti-blic Policy.</p> <p>A contract of this character is void, as being contrary to public polciy. (p. 686).</p> <p>3. Statute of Frauds — Sale of Land — Trustee,</p> <p>Where a sale of real estate is made by a trustee, and no memorandum is made in writing by the trustee, such sale is void under the statute of frauds, (p. 686),</p>

Appeals from Circuit Court, Tucker. County. Suits by the First National Bank of Cumberland and others ag-ainst Ward Parsons and others. From a judgment dismissing the bills, plaintiffs appeal.

<p>Appeal from Circuit Court, Jackson County.</p> <p>Bill by R. B. Graham against the Citizens’ National Bank of Parkersburg. From a decree dismissing the bill plaintiff appeals.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by Seymour Z. Harr against Samuel J. Shaffer and others. From a decree dismissing thé bill, plaintiff appeals.</p>

<p>1 Commissioner in Chancery — Appeal—Record.</p> <p>Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disafSrmed by the circuit court, the appellate court must determine for itself, from the facts and circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or that of the circuit court, (p. 727).</p> <p>2. Commissioner in Chancery — Appeal—Reversal.</p> <p>A case in which the appellate court, upon the facts and evidence reversed the action of the circuit court in overruling the findings of the commissioner and in sustaining exceptions taken to the commissioner’s report, (p. 727).</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Bill by Claris E. Jones against M. B. Shufflin. Decree for plaintiff. Defendant appeals.</p>

<p>1. Land — Town I. ots.</p> <p>The word “land” in section 1, chapter 94, Code, is used in a restricted sense to denote agricultural or farming: land, and not town lots used for building' purposes alone, {p. 733).</p> <p>2. Tenancy for Life — Lease—Duration of Lease — Death of Life Tenant.</p> <p>All unexpired leases given by a life tenant on town lots used for building purposes alone terminate with the death of such life tenant, and do not continue in force until the end of the current year. (p. 733).</p>

<p>1. Foreign Contracts — Foreign Judgments — Appearance.</p> <p>While the judgment of a competent court of any state that has jurisdiction over the person or subject matter is conclusive upon the merits of the controversy in every state, a court of another state has not the power, without service of process or voluntary appearance, to render a judgment on a contract that is absolutely void, under the statutes of the state where it is made. (p. 741)</p> <p>2. Foreign Contracts — Foreign Attachment — Garnishment—Payment by Garnishee.</p> <p>If such a void contract is sued on by a foreign attachment in.a foreign jurisdiction, the garnishee must make- defense to the action, or notify, if practicable, his absent creditor of the pendency of the attachment proceedings, that such creditor may make such defense; otherwise, a judgment rendered by default will not protect the garnishee when sued by his creditor, (p. 739)</p>

<p>Application by W. R. D. Dent for a writ of mandamus to the board of commissioners of Taylor county.</p>

<p>1. Evidence — Incompetent Evidence — Criminal Law — Reversal.</p> <p>Where illegal evidence is admitted against the objection of a party, it will be presumed that it prejudices .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 for reversing the judgment. (P- 777).</p> <p>2. Evidence — Expert Testimony — Rape—Criminal Law.</p> <p>Amedical witness who is examined as an expert in the trial of an , • indictment for rape, after, stating that he had been called upon to examine the prosecutrix, and the result of his examination, will not be allowed to express the opinion to the jury that no girl would have voluntarily submitted to the suffering necessary to have brought about this result, (p. 774).</p> <p>3. Evidence — Expert Testimony — OpinionEvidence—Criminal Law.</p> <p>Where an injury 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 witnesses is not admissible, (p. 774). ,</p> <p>4. Evidence — Expert Testimony — OpinionEvidence—Criminal Law.</p> <p>While the admission in evidence of the opinions of experts necessarily ■ give rise to very nice distinctions between facts and findings, it nevertheless does not annul the rule of law, axiomatic with reference to them, as well as to all witnesses, that they must not be so examined as to substitute their opinions for the verdict, and thus usurp the peculiar province of the jury. (p. 776).</p>

<p>1. Corporations — Mandamus—Baptist Missionary Society— Charter.</p> <p>The secretary of state will not be compelled by mandamus to issue a charter of incorporation, to several persons who agree to become a corporation by the name of the “Baptist Missionary Society of West Virginia,” for the purpose of promoting religion by aiding in the support of'Baptist ministers engagedin preaching the gospel, and by aiding in the erection of houses of worship on missionary fields in West Virginia, and by collecting and disbursing funds for these purposes, (p. 783.)</p> <p>2. Corporations — Incorporation of Church — Constitutional Law.</p> <p>Granting a certificate of incorporation upon the presentation of such an ag-reement would, in effect, be incorporating the church the parties represent, and contrary to the provisions of the Constitution and statute, (p. 784.)</p>

Petition by Joseph A. Roe, suing- for the use of the Merchants’ & Mechanics’ Bank of Grafton against the town of Philippi, for mandamus. From a judgment dismissing the petition, petitioner brings error.

<p>Error to Circuit Court, Wayne County.</p> <p>Virgil Staley was convicted of voluntary manslaughter, and brings error.</p>

Application of John J. Carter to the county court of Tvler County for relief against erroneous assessment. From the judgment, petitioner brings error.

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Suit by the Board of Trustees of Oberlin College against J. V. Blair, trustee, and others. Decree for plaintiff, and defendants appeal.</p>

<p>Application of T. P. R. Brown for a writ of prohibition against the board of election canvassers of Randolph County.</p>

<p>Application by T. P. R. Brown for a writ of Mandamus against the Randolph County Court.</p>

<p>1 Burglary — Indictment.</p> <p>In an indictment, a count evidently intended for ’burglary, which fails to charge the offense as burglariously committed, is bad, and should be quashed. State v. Meadows, 22 W. Va. 766. (p. 839).</p> <p>2. Burglary — Indictment—Housebreaking—Sentence.</p> <p>A person found guilty by the verdict of a jury, under a bad count for burglary, cannot be sentenced for housebreaking, although the indictment contain a good count charging the'latter offense, (p. 837). ■ ’ ■ ■</p> <p>3. Disqualification of Judge.</p> <p>It is improper for a judge to try indictment signed by him as pros'ecuting attorney, p. 839).</p>