Volume 49 — West Virginia Reports

Action by Henry McCormick against Isaiah Short. Judgment for plaintiff before a justice, and from an order of the circuit court on appeal plaintiff brings error.

<p>Peocbss — Full Name of Parties.</p> <p>It is better in judicial process, or other legal documents, to use the full Christian, names and surnames of parties therein,' not mere initials, (p. 9).</p> <p>2. Service ob Process — Persons Same Name.</p> <p>Case of service of process on the wrong person, having the samé initials of Christian name as the defendant intended, discussed. (p. 9).</p> <p>3. Deokee — Motion to Reverse — Errors.</p> <p>On a motion to reverse a decree by default, the errors must be specified iu the notice of the motion, or on the record in the motion, or in a written assignment of errors filed as a part of the record, (p. 13).</p>

<p>Application of J. W. Hartigan for a writ of prohibition against George C. Sturgiss and others.</p>

Action by W. G. W. Iaeger against Edward Rice and another. J. M. Wagoner filed a petition claiming ownership of property levied on. Judgment for claimant and Iaeger brings error.

<p>1. Limitations — Running of Statute. .</p> <p>Where a railroad bridge changes the current of a stream and .injures land of 'a riparian owner lower down the stream by causing it from time to time, as freshets come, to wash away his land, the injury is not of a permanent nature in law, but intermittent, recurrent, and continuous, and the statute of limitations runs from actual damage by washing, not from the erection of the bridge, (pp. 66, 67).</p> <p>2. Injury — Beginning of Damages:</p> <p>Where right by prescription to maintain a railroad bridge, and thus change the current of 'a stream and injure land of a riparian owner below by causing it to wash away his land is claimed, the commencement of time required for the prescription to ripen is, not from the erection of the bridge, but from the first actual damage to the land consequent upon the erection of the bridge, (pp. 67, 68).</p> <p>3. Prescriptive Right — Time of Action.</p> <p>Where a right as to land by prescription is claimed, the period required for the prescription to mature does not begin until some act or fact exists giving the party against whom the prescriptive right is set up cause of action, (p. 69).</p>

<p>Error to Circuit Court, Braxton County.</p> <p>James Ellison was convicted of abetting the theft of a horse, and brings error.</p>

Action by Charles PI. Wells and others against H. L. Smith and others. Judgment for plaintiffs against Smith, and action dismissed as to other defendants. Smith brings error.

<p>1. RailRoad Engineer, — His Duty as to Obstructors.</p> <p>A railroad engineer who discovers an obstructor on the right of way of his train is not bound to ■ stop his train unless he is aware that such obstructor is in such a helpless condition that he cannot protect himself by avoiding the train, but the engineer’s only duty towards such obstructor is to give the alarm signals necessary to warn a person of sound mind and good hearing in time to allow such person to vacate the right of way. (p. 90).</p> <p>2. Personal Injury — Gross Negligence — Liability.</p> <p>A person, sound of body and mind, who deliberately sits down on the right of way of a train and goes to sleep, or becomes so mentally absorbed as not to keep a proper lookout for such train, is guilty of gross negligence; and if he thereby fails to hear the alarm signals given by the. approaching train, and his death follows, the railroad company cannot be held liable therefor. (p. 91).</p> <p>3. Sound Mind Presumed — Unless Helplessness Shown.</p> <p>Adults are presumed to be sound of mind and body and capable of avoiding accidents; and, if an adult person is killed on its right of way by a railroad train, the company cannot be held liable until it be shown that 'such 'person was in a helpless condition, and that the engineer had knowledge of such helplessness in time to have stopped his train to have prevented such killing, (p. 92).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by the First English Evangelical Lutheran Church of Wheeling, West Virginia, and others, against George Arkle. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Criminal Tbiax. — Continuance—Evidence Material.</p> <p>To reverse a conviction because of refusal to delay or continue the trial to enable the accused to learn whether evidence exists material to the defense, it must appear clearly that the court abused its discretion, and that its action is plainly erroneous. It must appear that such material evidence existed, and would likely be produced, and the witness expected to give it must be named, and some reasonable ground must appear for the expectation that the evidence exists and will be produced. A mere hope of finding such evidence, based on no tangible substantial ground, will not do. (p. 97).</p> <p>2. Pbisonee’s Chabacteb: — Proper Evidence.</p> <p>The good character of an accused party in respect of the trait involved in the act imputed to him, where intent is essential to its criminality, is admissible, whether the guilt of tne accused be doubtful or not. (p. 100).</p> <p>3. Self Defense- — Character of Deceased.</p> <p>The bad character of a murdered man is not admissible on the trial of his murderer, where there is no physical altercation and no question of self-defense involved in the case. (p. 101).</p>

<p>Ejectment — Declaration—Description of Land.</p> <p>A description of land in an action of ’ejectment, showing the county, the quantity, the home farm (of which it was a part), the person to whom it was assigned, the suit in which partition was made, the surveyor who made the division, and all the lands by which it is bounded, is conveniently certain, within the meaning of the statute, (p. 103).</p>

<p>1. Pabties Necessary — At Law and Equity.</p> <p>While at law all persons having a joint interest must join in the action as plaintiffs, and while, in equity, this rule is preferable, it is generally sufficient if all the parties interested in the subject of the 'suit are before the court either as plaintiffs or defendants, (p. 115).</p> <p>2. Exhibits — Part of Bill — Equitable Relief:</p> <p>Exhibits filed with a bill of complaint, and asked to be read and treated as parts of it, are so considered, as much as if they were actually incorporated in it; and, if the bill and exhibits so read present grounds for equitable relief, the demurrer is properly overruled, (p. 116).</p> <p>3. Deed — Absolute or Conditional — Parties Intention.</p> <p>In determining whether a 'deed, absolute or conditional on its face, is, in fact, a mortgage, or mere security for the payment of money, the true question is whether a purchase of the property or a loan of money or forbearance of a debt was reauy intended by the parties to the instrument at the time of its execution. (p. 117).</p> <p>4. Intention Ascertained — Parol Evidence and Circumstance .</p> <p>In ascertaining what tlie intention of the parties was at the inception of the transaction, it is proper to consider the parol declarations of the parties and the evidence 01 other witnesses, together with the situation, circumstances, and conduct of the parties respecting such transaction prior to, at the time of, and after the execution of the deed. (p. 117).</p> <p>5. Mortgage! — Security—Right of Repurchase. ■</p> <p>If, by the intention of the parties, the transaction was originally a security for the payment of money, it will be held in equity to be a mortgage, and the maxim, “Once a mortgage, always a mortgage,” applies, and it will remain such, unless changed by a new contract upon an adequate consideration, and so reasonable and fair as to relieve it of any suspicion of un-conscientious advantage'; but if, originally, the transaction was a sale of property with a right of repurchase at the option of the grantor, it is a conditional sale, and no subsequent event short of a new agreement between the parties can convert it into a mortgage, (p. 119).</p> <p>6. Construction oe Written Instrument.</p> <p>When it is clear that after the execution of the Instrument no debt remained due from the grantor to the grantee, the transaction is a contract of sale, and the deed must be given its legal effect, (p. 119).</p> <p>7. Sale op Land — Reservation—Mortgage.</p> <p>A sale of land, with a reservation to the vendor of a right to repurchase it at a fixed price and at a specified time, is not prohibited by either the letter or the policy- of the law, although in doubtful eases deeds containing such provisions will be held to be mortgages, (p. 120).</p>

<p>1. Res Judicata — Decree on Merits — Estoppel.</p> <p>A judgment or decree upon the merits of the case is a bar or estoppel against the prosecution of a second suit upon the same demand, not only as to every matter which was offered and received to sustain or defeat the claim, but also 'any other admissible matter which might have been used for that purpose, (p. 135).</p> <p>2. Equity — Fraudulent Conveyance — Judgment.</p> <p>B. & F., having obtained a judgment against R. March 11, 1890, and docketed it according to law January 7, 1891, instituted a suit in chancery against R. and S. to set aside as fraudulent a deed from R. to S. dated December 17, 1889, after the debt was contracted, but before judgment, conveying from R. to S. a tract of land containing 34 acres, in which suit the bill was dismissed at the hearing on the merits; and in September, 1897, B. & F. brought another suit to enforce the lien of said judgment upon the undivided one-half interest of R. in an 86 1-2-acre tract of land, as to which there were no allegations in the pleadings in said first suit; and R. tendered a plea of res judicata setting up said former suit as an adjudication of the matters involved in the second suit, and -said plea was rejected by the court as insufficient. Held, the plea was properly rejected, (pp. 130, 131).</p> <p>3. Parol Contract — Statute of Frauds — Equitable Title.</p> <p>A purchaser of land by parol contract, having acquired an equitable title therein by part performance of the contract, such as will take the contract out of the -statute of parol contracts and entitle him in equity to have the contract specifically performed, may assert, as 'against the creditors of the vendor, his prior equity; but mere payment of the purchase money is not such part performance as will vest in him such equitable title and superior equity, (p. 137).</p>

<p>1. Criminal, Law — Special Appearance — Process.</p> <p>An appearance for the purpose of taking advantage of defective execution or nonexecution of process must he a special appearance for that purpose alone, and must be so stated at the time of making the appearance, (p. 143).</p> <p>2. General Appearance — Pleadings—Process.</p> <p>When a general appearance has been entered in a case, and pleadings made up, the defendant cannot on a subsequent day- of the court be permitted to enter a special appearance for the purpose of taking advantage of defective process or defective or nonexecution thereof, (p. 144).</p> <p>3. Indictment — Endorsement Thereon.</p> <p>The indorsement of “A true bill,” and signed by the foreman of the grand jury, is no part of the indictment, except for identification. (p. 144).</p> <p>4. Trial by Court — Illegal Evidence — Error.</p> <p>When a case is tried by a court in lieu of a jury, it is not an error, for which the appellate court will reverse, to hear illegal testimony, if there be enough legal testimony to justify the judgment. (p. 145).</p> <p>5. Evidence — -Exceptions—Demurrant—Judgment.</p> <p>In such a case the party excepting must be regarded as a demurrant to the evidence, and the judgment of the court below will not be reversed unless it be plainly erroneous, (p. 145).</p> <p>6. Criminal Prosecutions' — Corporations-—Evidence.</p> <p>In criminal prosecutions against corporations, the fact of the incorporation of defendant does not have to be proven unless such fact is put in issue as provided in section 41, chapter 125, Code. (p. 145).</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Bill by Walter Pendleton and Ií. C. Woodyard against M. J. Bower. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Injunction — Bill—Answer—Exceptions.</p> <p>•Where an injunction has been granted upon a hill in equity, and answers to the hill and exceptions to the answers have been filed at rules, the judge, upon the hearing in vacation of a motion to dissolve the injunction, may examine the hill, answers, and exceptions, and, if the exceptions are not well taken as to matters affecting the equitable ground upon which the injunction rests, he may disregard them. (p. 163).</p> <p>2. Motion to Dissolve — Vacation—Exceptions.</p> <p>The plaintiff in the injunction cannot deprive the defendant of the benefit of Ms answer upon the hearing in vacation of his motion to dissolve, or postpone it until'the next term, by so filing exceptions to the answer; for the motion and the exceptions may be taken up and heard at the same time and in vacation, (p. 163).</p> <p>3. Answer — Sufficiency•—Exceptions.</p> <p>An allegation of the bill claimed not to be sufficiently answered is the only proper basis for an exception to an answer for insufficiency, and an exception which amounts to no more than a criticism of the answer, without setting forth any allegation of the bill and charging that as to it the answer is insufficient, will be disallowed as not well taken, (p. 165).</p> <p>4. Allegations Denied — Specially and, Generally.</p> <p>When, in an answer, nearly all the material allegations of the bill upon which the prayer for relief is predicated are controverted in detail, and the respondent avers that he has 'aimed to answer fully each and every allegation, and believes he has done so, but, by way of general answer to all such allegations as have not been admitted or 'denied, says they are untrue, and demands proof of the same, such general denial, while not sufficient to constitute good pleading, if not properly excepted to in the court below will be considered by the appellate court as controverting such parts of the bill as are not specifically replied to. (p. 166).</p> <p>5. Trustee’s Bond — Notice of Sale.</p> <p>The failure of a trustee in a deed of trust, who has voluntarily given a bond to faithfully perform his duty as such trustee, and 'account for and pay over all money that may come into his hands in the execution of such trust, to append, to his notice of a sale to be made under the deed of trust, a certificate of the clerk that such bond and security has been given, is not sufficient ground for enjoining the sale. (p. 167).</p> <p>6. Notice — Publication—Four Issues Sufficient.</p> <p>The publication Of a notice of sale under section 7, chapter 72, Code, is complete on the fourth issue of the paper containing it, if it be published in the paper once in each successive week, though the four weeks have not actually elapsed between the dates of the first and last publication; and if a copy of such notice so published be posted at the front door of the court house of the county in which the saie is to be made, on the day of its first publication in the paper, it is sufficiently posted, (p. 167).</p> <p>7. Conveyance in Trust for Creditors — An Appropriation.</p> <p>When the grantor in a deed of trust conveys all his property to a trustee for the benefit of his creditors, with power to sell the same immediately, and authorizes the trustee, after paying the expenses of the trust and discharging the liens on the property, to make a pro rata distribution of the proceeds of the trust property among the grantor’s creditors, and reconvey to Mm whatever may remain unsold in case the property shall he more than sufficient to pay all the debts, such deed is absolute, and the conveyance is to a trustee for the purpose of raising a fund with which to pay debts, as distinguished from a deed of trust in the nature of a mortgage to secure the payment of debts, and amounts to an appropriation of the property, so far as may be necessary to the accomplishment of that purpose, (p. 175).</p> <p>8. Saie Under Conveyance for Creditors — Enforced.</p> <p>The grantor in such deed thereby consents to an immediate sale of such property, and, such consent being analogous to that given by a debtor in a decree directing a sale of his property made and entered with his consent, he will not be permitted to enjoin such sale merely because the amounts of his debts, their priorities, and the persons to whom they are due and owing have not been ascertained, the amount to be raised by such sale is uncertain, and the legal title is outstanding in trustees in prior deeds of trust, (p. 176).</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill by E. E. Cook against H. P. Totten. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by David Evans, administrator, against L. H. Kelley and others. Decree for defendants, and plaintiff appeals.</p>

Petition'by Ward & Blankenship against William Evans and others for a writ of prohibition. Petition dismissed on demurrer, and petitioners bring error.

<p>1. Deed — Parol Evidence — Reformation—Mistake.</p> <p>While a general warranty deed, without limitation, reservation, or exceptions, conveys all the grantor s right, title, and interest, both legal and equitable, in and to the property embraced therein, ana while parol testimony is not admissible to vary, contradict, or explain such deed, unambiguous on its face, yet, if such deed is executed through mutual .mistake as to the legal effect thereof, contrary to the plainly-established intention of the parties thereto, a court of equity will grant relief against such mistake, especially when the same is attributable to the party or his agent who is seeking to take an unconscionable advantage thereof, (p. 189.)</p> <p>2. Equity — Mutual Mistake — Evidence.</p> <p>A court of equity will relieve against a mutual mistake of law as well as of fact, when such mistake is established by' clear and convincing proof, and the rights of innocent third parties do not interfere, (p. 190).</p>

<p>1. Will — Contents—Construction.</p> <p>The will of B. F. contains the following clauses: “I give my son A. J. F. my home farm, with all its 'appurtenances. I give my son P. F. my lower farm, that was Waitman’s, with ah. its appurtenances; hut my wife, N., to have the full control of both said farms during her widowhood, and no longer. My four daughters, namely, D., J., C., and S., to have an interest in the aforesaid farms as long as they may remain single, and no longer.” Held, the widow takes a life estate in both farms, subject to he defeated by her marriage; then to the four daughters for life, subject to he defeated as to them, respectively, by marriage; remainders in fee to the sons, respectively, as to the farms, (p. 199).</p> <p>2. Will — Intent—Circumstances of Testator.</p> <p>The intention of the testator is to be collected from the whole will justly interpreted, having regard to the circumstances of the testator, and the relation in which he stood to the parties claiming under the will, and the subjects disposed of by it. (p. 198).</p> <p>3. Will — Intention—Technical Words.</p> <p>Where the will plainly shows the intention of the testator, and he has failed to use proper technical words to express his meaning, the court may supply them to effectuate his manifest intention, and for 'such purpose only. (p. 198).</p> <p>4. Will — Whole Document Construed.</p> <p>The court will, if possible, adopt such construction as will uphold all the provisions of the will; and in the attainment of this object the relative order or position of the bequests or devises may be disregarded, if, by transposing them, a consistent construction of the whole will can be deduced, (p. 200).</p>

<p>1. Ceeditor’s Bill — Devastavit Multifarious.</p> <p>A bill by a creditor of a decedent to settle tbe estate and tbe accounts of tbe administrator, and to charge him with a devas-tavit, and to have a personal decree against tbe administrator, and to subject lands owned by tbe decedent at bis death, and to follow such lands into tbe bands of a grantee of tbe heirs or devisees, and set aside their conveyances to such third party for fraud or other legal ground, is not multifarious, (p. 207).</p> <p>2. Administrator — Expenses—Good Faith.</p> <p>An administrator is allowed bis legal costs and reasonable counsel fees expended in defending a litigable demand against the estate, whether in tbe circuit or appellate court, if be acted ' in good faith in making such defense, (p. 209).</p>

<p>1. Murder — Degree—Instruction—Judgment.</p> <p>A judgment will not be reversed, in a case in wliicli a verdict of murder in the second degree is clearly justified by tlie evi-deuce, because an instruction was given in the case embodying tbe law as expounded in point 11 of the syllabus in Gain’s Gase, 20 W. Va. 679. (p. 214). .</p> <p>2. Homicide — Degree of Grime — Excusable.</p> <p>The intent to do enormous or severe bodily harm with a deadly weapon, followed by homicide as the result of the execution of such intent, constitutes murder in the second degree, unless the act be done under such circumstances as render the killing excusable, or justifiable, or voluntary manslaugther. (p. 215).</p> <p>3. Moeder — Degree—Intent.</p> <p>A specific intention to kill is not essential to murder in the second degree, but it is essential to murder in the first degree, (p. 217).</p> <p>4. Instructions — Intent—Evidence.</p> <p>It is not error to refuse to give an instruction that gives undue prominence to isolated portions of the evidence, and therefore calculated to mislead the jury. (p. 218).</p> <p>5. Cbime — Evidence of Character — Self-Defense.</p> <p>Upon the trial of a person charged with the crime of murder, evidence of his good character may always be received as tending to disprove his guilt; but evidence of the ferocious, brutal, vindictive, or other dangerous character of the deceased is only admissible as part of the proof of self-defense, as tending to show the bona fides of the defendant’s belief in the necessity of killing his assailant to save himself from death or great bodily harm. It is not error to refuse an instruction directing the latter class of evidence of character to be considered in determining generally the guilt or innocence of the accused, (p. 219).</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>James P. Williams was convicted of murder, and brings error.</p>

<p>Specific Performance — Decree—Appeal.</p> <p>F. brought his suit in equity for specific performance of the following contract: ' “Received of F. four thousand dollars, and he is to have all the lands owned by me in Webster Countv, West Virginia, and unsold at this date. As soon as I am well enough to do so, will make deeds, or have it done, and send to you. (Signed) G. D. C., per Mrs. C.,” — against the administrator with will annexed of G. u. C., Mrs. 0. the widow, and the heirs at law G. D. C., deceased, naming them, and D. and C., trustees, to whom the said widow and heirs at law had conveyed the legal title to all the real estate of which the said G. D. C. died seized; the prayer of the bill being that the said trustees and heirs at law be required to convey to plaintiff the said lands, which were fully described in the bill, and, if the contract could not he specifically enforced, that plaintiff have a decree againts the estate for the four thousand dollars and interest. The widow filed her answer and disclaimer, the administrator answered the bill, and the bill was taken for confessed as to said trustees and heirs at law. Upon the bill taken for confessed, a decree was entered requiring said trustees and heirs at law to convey to plaintiff the lands described in the bill. The administrator and heirs at law appealed from said decree. Held, that the rights of the administrator, as personal representative, were not affected by said decree; that the same having been rendered upon bill taken for confessed against all the parties whose interest were affected by said decree, and they having failed to move to have the same reversed or corrected in the court rendering the decree, as provided in sction 5, chapter 134, Code, said appeal cannot be entertained in the appellate court (see section 6, chapter 134, Code), and must he dismissed, (p. 230).</p>

<p>1. Oil Leash — Lessors Joint Interest.</p> <p>T. B. H. and A. K. H., Ms wife, leased together in one lease two tracts of land lying contiguous to each other, one hundred and fifty-two acres belonging to T. B. H. and thirty-five and one-half to A. K. H., as one tract of one hundred and eighty seven and one-half acres, for oil and gas purposes. ’A well was bored on the one hundred and fifty-two acres; the proceeds cash rental for gas paid to both lessors, and receipted for by thém jointly, and the royalty of oil run into the pipe lines to their joint credit. Held to be a joint lease of one tract of one hundred and eighty-seven and one-half acres, as between the lessors and lessee, (p. 243).</p> <p>2. Lease — Consideration—Date of Payment.</p> <p>Such lease being “in consideration of the sum of twelve hundred and fifty dollars, the receipt of which is hereby acknowledged, * * * parties of the first part do hereby grant unto * * *, second party, his heirs and assigns, all the oil and gas in and under the following premises,” describing them, with the right to enter and drill and operate for oil, gas, etc., reserving to themselves one-eighth of the oil produced,-, to be run into pipe line to their credit. "Term of lease two years, and as much longer as oil or gas is found in paying quantities. If gas only is found, second party agrees to pay two hundred and fifty dollars each year, quarterly in advance, for the product of each well while the same is being used off the premises. Gas free for dwelling house purposes,” — the production in paying quantities of either gas or oil, and the payment of gas rental or the delivery of one-eighth of the oil royalty, in the pipe line, as stipulated, will perpetuate the lease during the time of such production, (p. 243).</p> <p>3. Lease — Development—Lessors’ Remedy.</p> <p>Lessors’ remedy for failure on part of lessee to further develop the leased premises, or to properly protect the lines thereof from drainage through wells on adjacent property, is ordinarily by action at law for damages, (p. 247).</p>

<p>1. Election — Ballot Sheet — Voter.</p> <p>A voter must use only one of the ballots on the election ballot sheet, and the names of all candidates for whom he votes must be found on that one ballot. If some names are on one ballot, some on another, the voter doe's not vote for any candidate. (p. 254).</p> <p>2. Voting — Mistakes—Irregularities.</p> <p>As to mistakes and irregularities in elections, a distinction exists between those made by the voter and those made by officers of election. In the former case such mistake's and irregularities may often destroy the ballot, while those of officers do not affect the election, if a fair election has been held. (p. 262).</p> <p>3. Election Statutes — Mandatory.</p> <p>Statutes mandatory and directory; more particularly election statutes, (p. 263).</p> <p>4. Constitution Construed — Legislative Power.</p> <p>The Constitution, in article IV, section 11, gives wide powers to the legislature to make all reasonable regulations and restrictions as to preparation of ballots and the conduct and returns of elections, (p. 264).</p>

<p>Error to Circuit Court, Roane County.</p> <p>J. E. C. Duffield was convicted of forgery, and brings error.</p>

<p>1. Justice Summons — Infant Plaintiff.</p> <p>summons m action brought before a justice by infant plaintiff by next friend is not void, defective, which defect can only be taken advantage of by defendant by special appearance for that purpose only, to be stated at time of making such appearance. (p. 285).</p> <p>2. Summons Defective — Appearance-—Judgment.</p> <p>A judgment rendered upon such summons after general appearance of defendant is not void. (p. 285).</p> <p>3. Infant Plaintiff — Guardian ad Litem — Costs.</p> <p>The object of section 24, chapter 50, Code, requiring appointment of guardian ad litem for infant plaintiff before bringing suit and taking consent in writing-of such guardian to accept such appointment, and to be responsible for costs if the action rail, is to protect defendant in the matter of costs, that he may have some responsible person to look to in case he succeeds in his defense, (p. 286).</p> <p>4. Void Judgment — Execution May he Quashed.</p> <p>An execution issued upon a void judgment may be quashed on notice of motion to plaintiff, but not an execution issued on an erroneous judgment, (p. 286).</p> <p>5. Summons — Return Day — Continuance.</p> <p>Under section 59, chapter 50, Code, on return day of summons, if the defendant he not in custody, the justice may, without the consent of either party, continue the cause for not over seven days. (p. 286).</p>

<p>1. Cause or Action- — Limitation—Action.</p> <p>When a cause of action accrues for or against a party, the statute of limitations does not stop because of his death or until he has a personal representative, (p. 290).</p> <p>2. Ckeditobs- — Suit Stops Running of Statute.</p> <p>When an administrator or executor sues in equity to convene the creditors of the estate and administer its assets for the benefit of all the creditors, the statute of limitations stops running against their debts at the commencement of the suit for the purposes of that case. (p. 290).</p> <p>3. Peincipal and Agent — Limitations.</p> <p>A deputy sheriff is agent of the sheriff, and the statute of limitations applies between them as between agent and principal. (p. 291).</p> <p>4. General Agency — Running of Statute.</p> <p>In case of a general or continuous agency, as distinguished from a special or isolated agency, the statute of limitations runs between the parties to it from its close, (p. 292).</p> <p>5. Book Entries — Evidence—When?</p> <p>An entry in a book made by a party is not admissible as evidence in his behalf, though he is since deceased, but it is admissible against him as an admission. If, however, the adverse party calls for and introduces such book in evidence, all entries touching the subject are thus made evidence,* — the self-serving as well as the self-disserving entries, (p. 292).</p> <p>6. Set Off — Limitations of.</p> <p>The statute of limitations runs against a set-off until it is filed, (p. 293).</p> <p>7. Note — Delivery of — Essential.</p> <p>Delivery of a promissory note is indispensable to its efficacy, and, if not delivered in the lifetime of its maker, it cannot be delivered after his death. But delivery may be actual or constructive. If it is clear that the maker of the note intended it to be a finished note and binding on him, without further act on his part, it will so operate, though not actually delivered in his lifetime, (pp. 294, 295).</p> <p>8. Trusts — limitations.</p>

Action by E. Kyle against the Ohio River Railroad Company. Judgment for plaintiff on appeal from justice court, and defendant brings error.

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Nannie J. McCreery against the Ohio Biver Bail-road Company. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Equity Jubisdiction — Mining Lease — Accounting.</p> <p>If tlie rent or royalty reserved in the leasing of mineral property is dependent upon the amount of mineral taken, a hill in equity will lie to compel an accounting hy the operators or lessees of the mines, (p. 314).</p> <p>2. Paetuds to AotioNS at Law- — Equity.</p> <p>A person, though acting in different capacities, cannot he both plaintiff and defendant in an action at law, though joined with others. The rule is otherwise in equity, which alone can afford a remedy in such cases, (p. 315).</p>

<p>Set-Off — State of Claim, — Knowledge of Assignment.</p> <p>When, in a suit upon a chose in action brought hy the assignee thereof, the debtor pleads, as a set-off thereto, a claim against the assignor, of which he avers himself to be a purchaser without notice of the assignment, such set-off will not he allowed if it appears that, before he purchased the claim, the defendant had notice of the assignment, or had knowledge of such facts as were sufficient to have put him upon inquiry as to it, or abstained from inquiry for the purpose of avoiding notice, (pp. 318, 319).</p>

<p>1. Deed — Defective Acknowledgment — Recordation</p> <p>A simple contract creditor cannot attack the recordation of a deed in equity because the acknowledgment thereof is defective, (p. 325).</p> <p>2. Conveyance — Recordation—Limitation.</p> <p>A year having elapsed since the execution and recordation of a preference in favor of a creditor given by the debtor, equity cannot 'interfere with such preference, although the effect thereof is to defeat other creditors from realizing anything on their debts, (p. 325).</p> <p>3. Appeal — Finding of Circuit Court.</p> <p>This Court will not reverse the finding of the circuit court unless it is decidedly against the weight of the evidence, (p. 325).</p> <p>4. Bill Pails — Relief of Go-Defendants.</p> <p>Where the relief sought in a hill fails for want of proof, no relief can be administered between co-defendants on answer filed praying it, but such answer must be dismissed with the bill, without prejudice to the rights of the defendants as between themselves, (p. 326).</p>

<p>1. Foreign Corporation — Comity.</p> <p>So far as it conflicts with. the provisions of section 30 of chapter 54 of the Code of 1899, the general law of comity, as affecting the rights of foreign corporations, has heen repealed in this State, (pp. 332, 333).</p> <p>2. Corporations — Foreign and Domestic- — Bights of.</p> <p>By virtue of the second clause of said section, providing that “such corporation so complying shall have the same rights, powers and privileges, and he subject to the same regulations, restrictions and liabilities, that are conferred and imposed by this and the 52d and 53d chapters of this Code, and of chapter 20 of the Acts of 1885, on corporations chartered under the laws of this State,” foreign corporations, upon complying with the conditions required by said section, have the same rights, powers, and privileges respecting their contracts and remedies, if not otherwise repugnant to the policy of the State, as domestic corporations of like character, whether, under the general law of comity, they would have had such rights, powers, and privileges or not, but they can exercise no greater powers in this State than its domestic corporations, (pp. 335, 336, 337).</p> <p>3. Corporation — Foreign—Begulation of.</p> <p>A foreign corporation, coming into this State to transact business, must conform to the law of this State, if there be any, regulating similar corporations organized under the laws of this State; and its contract, although in terms solvable in the foreign state in which such corporation has its domicile, must be such a contract as a similar domestic corporation is authorized to make, or the courts of this State cannot enforce, or permit the enforcement of, its performance, (p. 338).</p> <p>4. Building and Loan Associtaion — Premium.</p> <p>A domestic building and loan association may fix a minimum premium to be deducted in advance or paid in periodical installments, but in either ease such premium must be a certain, definite sum, fixed and determined at the time of the making of the loan, and the contract of a foreign building association, made with a citizen of this State, secured by a deed of trust upon real estate situated in this State, and by its terms to be performed in the domiciliary state, must conform to this requirement; and, if it does not, such contract is not within the exemption from the operation of the usury laws given by our statute to domestic building and loan associations, and in such case only the principal of the loan, with legal interest thereon, together with such sums as have been necessarily expended in preserving the property, less the amounts paid into the association by the borrower as dues, interest, premium, and fines, to be treated in the settlements as partial payments, can be collected, and a sale under the deed of trust will be enjoined until the amount thus due is settled, unless the basis of settlement herein laid down be conceded by the association in proceeding to sell, (p. 343).</p>

Bill by John C. McEldowney and others against F. P. Low-ther and others. From an order refusing to dissolve an injunction, defendants appeal.

<p>Appeal from Circuit Court, Tyler County.</p> <p>Bill by Elizabeth J. Harris against Eugene M. Cobb and others. Decree for plaintiff, and defendants appeal.</p>

<p>WRITTEN Contract — Evidence. 1.</p> <p>When parties have made a written agreement, the writing is regarded as the exclusive evidence of the contract, and all oral negotiations and stipulations preceding or accompanying the execution of the written agreement are merged in it, and are not admissible in evidence. See, also, Long v. Ferine, (23 S. E. 611), 41 W. Ya. 314, (syl. pt. 1). (p. 377).</p> <p>2. Insurance Policy — Provisionsi—Waiver.</p> <p>In case of loss hy fire under a policy containing a provision allowing the insurer to repair, rebuild, or replace the injured, building, and containing also a provision that the loss or damage should in no event exceed what it would then cost the insurer to repair or replace the same with material of like kind and quality, if the insurer should waive the right to repair or rebuild, and agree to pay the amount of loss and damages in cash, that fact would not change the basis of estimating the loss and damages, and the same should he ascertained precisely in the same manner as if it were the purpose to repair, rebuild, or replace the structure, (p. 378).</p> <p>3. Policy — Total Loss — Restoration.</p> <p>There is no total loss of a building, requiring payment in full amount of the policy of insurance, if the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury, (p. 385).</p> <p>4. Restoration of Structure — Prudent Owner.</p> <p>Whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such basis, (p.386).</p> <p>5. Umpire’s Power — Award—Mistake.</p> <p>When an umpire or arbitrator exceeds his authority, the effect of his act is the same, whether it was done consciously or by mistake, as in either case his award is void. (p. 386).</p> <p>6. Syllabus Approved.</p> <p>Syl. pts. 1, 5, 6, Wheeling Gas Go. v. City of Wheeling, 5 W. Va. 448, approved, (p. 386).</p>

<p>1. Deed oe Married Woman — Recorded.</p> <p>A deed of a husband and wife for ber separate real estate, duly executed, acknowledged, and delivered, is good between tbe parties, tbougb not recorded, (pp. 390-393).</p> <p>2. Married Woman — Separate Estate — Acknowledgment.</p> <p>A deed from a married woman for ber separate real estate, signed and acknowledged by tbe husband, is good, tbougb be is not named as a grantor or otherwise in tbe body of tbe deed; but it is not good unless acknowledged by both. (pp. 394, 395).</p>

<p>1. Nuisaitce — Blacksmith Shop.</p> <p>A blacksmith, shop or a machine shop is not a nuisance per se. (p. 400).</p> <p>2. Equity — Nuisance per se — Presumption.</p> <p>It is a general rule that when the thing complained of is not a nuisance per se, but may not become so, according to circumstances, and the injury apprehended is eventual or contingent, equity will not interfere; the presumption being that a person entering into a legitimate business will conduct it in a proper way, so that it will not constitute a nuisance, (p. 401).</p> <p>3. ' INJUNCTION — Evidence Must Be Clear.</p> <p>To warrant tie perpetuation of an injunction restraining, as a threatened nuisance, the erection of a building proposed to be used for legitimate purposes, the fact that it will be a nuisance if so used must be made clearly to appear, beyond all ground of fair questioning, (pp. 403, 404).</p> <p>4. Building — Increase of Insurance.</p> <p>That erection of building will increase rates of insurance upon neighboring property is not ground for injunction to restrain such erection, (pp. 404, 405).</p>

<p>1. Husband and Wife — Conveyance—Trustee.</p> <p>Under section 4, chapter 66, Code 1891, a conveyance by a wife and husband of land held by a trustee in trust for the wife is invalid, the trustee not joining in it. (p. 407).</p> <p>2. Trust Property — Trustee—Conveyance.</p> <p>The clause of section. 4, chapter 66, Code 1891, requiring a trustee holding land for the use of a married woman to join her in its conveyance, has application to conveyances to a trustee vesting estate before the enactment of that clause, except those made before the constitution of 1872. (p. 409).</p> <p>3. -Property — 'Vested Rights — Alienation.</p> <p>Legislation cannot devest or impair rights of property vested before such legislation, nor the right of alienation, nor any of the essential incidents to the estate in such property, (p. 411).</p> <p>4. Multifariousness — Multiplicity of Suits.</p> <p>The objection of multifariousness in a bill may be disregarded except in plain cases, wnere thereby the administration of justice will be furthered, and multicplieity of such avoided. (P. 411).</p>

Action by J. E. Iiines against the Board of Education of Springfield district. Judgment for defendant on appeal from justice, and plaintiff brings error.

<p>1. Equity — Multiplicity of Suits.</p> <p>If a creditor divides an unascertained indebtedness against his debtor, with his consent, among various creditors of such creditor, and then assigns the residuum of such indebtedness to a trustee for the benefit of all his other creditors, and such trustee and such other assignees bring and threaten to bring separate suits in their several names at law for the purpose of determining the amount of such indebtedness at the instance of such debtor, a court of equity, to avoid a multiplicity of suits, will take jurisdiction of such indebtedness, ascertain and determine the amount thereof and the rights of the several assignees thereto, and, as ancillary of such relief, will enjoin the prosecution of the several claims against such indebtedness at law. (p. 434).</p> <p>2. Pabtiai, Assignments — Prior Creditors.</p> <p>If a debtor has notice of prior partial equitable assignments, made with his assent, conditionally, of an unascertained indebtedness due to the assignor, who afterwards assigns the residuum thereof to a trustee for the benefit of his general creditors, such debtor is bound to protect such prior partial assignees for his own benefit; otherwise, he may be compelled to pay such indebtedness twice, (p. 435).</p> <p>3. Assignee — Parties to Suit.</p> <p>A suit brought by such residuum assignee in his own name does not inure to the benefit of such prior partial assignees nor are they bound by the adjudication thereof; not being parties to such suit, nor privies in interest with such' residuum assignee, (p. 435).</p> <p>4. Cause of Action — Division of.</p> <p>A single cause of action cannot by assignment be divided into several causes of action, and several suits be maintained thqreon, without the assent of the debtor, (p. 436).</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Bill by Henry T. Bell against the- Peabody Insurance Company. Decree for defendant, and plaintiff appeals.</p>

Bill of review by the First National Bank of Huntington in the case of Simms & Enslow against the Old Dominion Building & Loan Association and others. From a decree of dismissal the bank appeals.

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Action by Fanny Fluharty and others against John Mills. Decree for plaintiffs, and defendant appeals.</p>

Action by the State against William'E. Chilton. Judgment for the State for a less arpount than the sum claimed, and it brings error.

Action by W. P. Cecil and others and J. E. Hall and others, respectively, against B. W. Clark and others, trustees of the Flat Top Coal-Land Association. Decree for defendants, and complainants appeal.

<p>1. Sheriff's Payment — Auditor—Burettes—Mandamus.</p> <p>K. sheriff of M. County, on the 14th day of August, 1899, in the last year of the term of his office, being thereunto required by the said county court of said county executed a new bond as such sheriff. On the 18th day of January, 1900, certain moneys were paid by a railroad company to the auditor under section 67, chapter 29, Code, on account of taxes assessed against said company for the year 1899 for county purposes of M. County. K. in writing directed the auditor to apply said payments on account of said K.’s indebtedness to the State for taxes prior to July 1, 1899. Notice was given the auditor by the sureties of K. on his bond of August 14, 1899, not to so apply such payments. On the 8th day of February, 1900, said K. was removed from said office of sheriff for failure to give another bond as required, and on the day following, T., one of K.’s sureties on this bond of August 14, was appointed sheriff in the place of K. and gave bond and qualified as such sheriff. T. sued out a writ of mandamus nisi to require the auditor to account to him as such- sheriff under section 67, chapter 29, Code, for the taxes so paid in by the railroad company on the 18th day of January, 1900, notwithstanding K.’s special direction as to its application. Held, error to make the mandamus peremptory, (p. 481). -</p> <p>2. Auditor — His Duties — Taxes—Sheriff.</p> <p>Under the provisions of said section it is the duty of the auditor to account for and settle the taxes assessed for the last year of the term of office of a sheriff with the occupant of the office at the time such taxes were assessed, (p. 482).</p> <p>3. Railroad — Payment of Taxes Into Treasury.</p> <p>In the case of taxes so assessed, and paid into the treasury by a railroad company for the last year of the term of office- of a sheriff, where he has given a new bond covering such taxes, it would be the duty of the auditor, unless otherwise specially directed by the sheriff, to apply such payments to the taxes charged against said sheriff for the said year for which they were assessed, (p. 485). .</p>

<p>1. Permanent Injury — Release of Damages — Contract. '</p> <p>If a person having received permanent injury in the service of his employer, and claiming the injury was caused by the negligence of the latter, in consideration of an agreement on the part of the employer to give him work so long as he gives satisfaction to the foreman or superintendent under whom he works, releases his claim for damages for said injury, and is then given employment in pursuance of the agreement at wages agreed upon between them, there is no lack of certainty or mutuality in the agreement, for all its terms are settled and, by releasing his claim for damages, the employe has paid in advance for the option to do such work for his employer as he is able to do, and he cannot be discharged without cause, (p. 497).</p> <p>2. Servants Discharge — Action—Recovery.</p> <p>If, in such case, the servant be discharged without cause, he may treat the contract as absolutely broken by the master, and, in an action thereon, recover the full value of the contract to him at the time of the breach, including all that he would have received in the future as well as in the past if the contract had been kept, less any sum he might have earned already or might thereafter earn in other service, as well as the amount of any loss the defendant sustained by the loss of his services without the master’s fault, (p. 498).</p> <p>S. Discharge — Cause—Burden of Proof — Trial.</p> <p>In the trial of such case, the burden is upon the defendant to show that the discharge was for good cause, and a verdict for the plaintiff should not be set aside unless it is clearly wrong, (p. 499).</p> <p>4. Agreements in Writing — Same Subject.</p> <p>If two writings of different dates, made between the same parties and relating to the same subject matter, are not different from each other in legal effect, though different in terms, and the later in date is, among other things, a receipt for a sum of money, mentioned in the other and to be paid, and, therefore, a voucher, passed between the parties in performance of the first agreement, such first agreement is not discharged by the execution of the latter, and resort may be had to both instruments in ascertaining the rights and liabilities of the parties, (.p. 500).</p> <p>5. Instkuction — Theory—Facts Tending to Prove.</p> <p>An instruction, stating the law applicable to one theory of the case, and substantially covering all the facts upon which the correctness of such theory depends, is proper, if there is any evidence in the case, tending to prove such facts, although it ignores other facts put in issue as part of another and different theory which, if true, leads to a different conclusion and result, when another instruction has been given in the case, covering such conflicting theory, (p. 505).</p>

Bills by Baldwin Ballard against W. S. Cbewning and others and by the Geiser Manufacturing Company against the same defendants. Decree for complainants, and defendants appeal.

<p>Appeal from Circuit Court, Pleasants County.</p> <p>Suit by Isaac Pethtel against James W. Williamson, one McCullough, and others. Decree for plaintiff, and defendants Williamson and wife appeal.</p>

<p>1. Judicial Sale — Notice of — Presumed.</p> <p>When a report of a judicial sale states that the sale was made “after advertising the sale in the manner and for the time required by the said order,” it will be taken that the publication and posting of notice of sale required by the court’s order were made, unless the comrary appear, (p. 527).</p> <p>2. Sciee WAGiAS^-Revival of Case.</p> <p>If a scire facias to revive a cause is returnable to one term of court,' revival is not confined to that term, but may be entered at a subsequent term. (p. 527).</p> <p>3. Death of Party — Abatement—Revivor.</p> <p>If a party die after verdict the fact does not abate the suit or call for revival, (p. 528).</p>

<p>1. Legislative Act Construed — City Charter.</p> <p>When the legislative act, incorporating a city, provides that “The council of said city shall have power to grant and regulate all franchises in, over and under tlie streets, alleys and public ways of tbe said city, under sucb restrictions as 'shall be provided by ordinance, but no exclusive franchise shall be granted to any individual or corporation,” the legislature thereby delegates to the council of such city authority to pass an ordiance, granting to an individual or a corporation the right to construct and operate a street railway in the streets of such city. (p. 535).</p> <p>2. City Franchise — Power to Assign.</p> <p>Although such franchise is usually conferred upon a private corporation, it may be granted-to an individual, and, with the consent of the council having such delegated power over the subject, he may make a valid assignment of the same to a private corporation, organized for the purpose of constructing and operating such street railway, (p. 538).</p> <p>3. City Franchise — Solder—Private Property Talcen.</p> <p>The holder of such franchise, although privately interested in the enterprise thereby provided for, is nevertheless an agency or instrumentality in the hands of the public authorities for the aecomplishmnet of public purposes and benefits a ad subject to their control, and private property may lawfully be taken and damaged in the execution of the ordinance, but the constitution and statutes provide that just compensation shall be paid to the owner of the property so taken and damaged, (p. 538).</p> <p>4. Coeporations — Bight of Way — Injunctions.</p> <p>When the certificate of incorporation of a railway company states that the purpose of the corporation is to construct and operate a railroad, designating certain points as termini of the proposed road, and that it is to run through the city of F., and said company lawfully acquires a franchise to construct and operate a street railway in said city, and, in pursuance of the ordinance, granting the franchise, is proceeding to build its track in one of the streets of said city, the owner of real estate adjoining said street cannot enjoin the company from so doing, whether the charter of the company authorizes it to construct and operate a street railway or not, unless, upon the ordinary principles of equity jurisprudence, he has grounds for equitable relief against the company. If it be true that the corporation is exceeding its corporate powers, that fact is not alone sufficient ground for equitable interference at the suit of a person who is not a member of the company, (p. 540).</p> <p>5. Private Property- — Compensation—Damages.</p> <p>Such adjoining lot owner cannot restrain the construction of the railway in the street upon which his property abuts until the damage to his property, resulting from such use of the street, is ascertained and paid or secured, unless the injury to liis property is so great as to destroy its value and therefore amounts to a virtual talcing of the property for the úse of the railway company. Section 9 of Article III of the Constitution provides that compensation shall he paid to the owner of the property for such damages and gives him an action at law therefor, but does not, as in cases where the property is actually taken, require the compensation to be paid or secured before the injury is inflicted; and, having an adequate reemdy at law for the injury, the owner of such lot can have no reief in a court of equity on account thereof, if the legislature has authorized the construction and operation of the railway in such street, (p. 541).</p> <p>6. Corporations Authority — Nuisance.</p> <p>When a person or corporation is authorized by the legislature by an express statute to do an act, or by the council of a city or town to which the power to authorize it has been delegated by a legislative act, such person or corporation cannot be be regarded as committing a nuisance in the execution of such act nor proceeded against merely upon the theory that it is a nuisance, either at law or in equity, (p. 541).</p>

<p>X. Ejectment — Boundary—Evidence i — Verdict.</p> <p>In an action of ejectment in which, the controversy turns wholly upon the location of a boundary line between the lands of the litigating parties, and competent, material and weighty evidence is adduced by both parties in support of their respective claims as to the true location of the line, and there is a verdict for the 'defendant, such verdict should not be set aside as being against the weight of the evidence, (p. 544).</p> <p>2. Instruction Prejudicial — Verdict■—Judgment.</p> <p>An instruction, given at the request of the defendant and covering only a part of the theory of the defense to which it relates and tending to prove which there is evidence in the case, is open to criticism because of its narrowness, but if no general instruction, stating the law upon such theory, is given in the case, and the instruction is not in such terms as to give undue importance to the evidence referred to in it, and it is manifest that the giving of such instruction has not operated to the prejudice of the plaintiff, the judgment will not be reversed on account thereof, (p. 548).</p> <p>3. Ejectment — Description of Property — Title.</p> <p>If, in an action of ejectment, the case is such that the rights of neither of the parties are in any way dependent upon any forfeiture under the laws relating taxes, and there is no evidence in the case of the payment of taxes on any of the property hy either of them, and the jury are instructed, at the intsance of the defendant, that, if they believe from the evidence the land in controversy is included in the defendant’s deed and he has been in actual possessio not' any part of the land embraced in the boundary described in his deed, said possession extends to his exterior boundaries, and if continued for a period of ten years and having paid all the taxes on the same for that period of time, they must find for the defendant; the giving of such instruction, although obviously objectionable, is not a reversible error, when it appears that the plaintiff could not have been prejudiced thereby, (p. 551 j.</p> <p>4. Court’s Kulinu — Exception—Appellate Court.</p> <p>A ruling of the court below to which no exception is taken will not he noticed in the appellate court, (p. 552).</p> <p>5. Trial — Evidence—Exception—Error.</p> <p>When evidence is excluded and the action of the court in excluding it is relied upon in the appellate court, it must appear on the record that the evidence rejected was or would have been relevant, material and important to make its rejection available as a ground of error, (p. 553).</p>

<p>1. Ballot — Voter—Tickets to he Defaced.</p> <p>A ballot, prepared and perfected under the provisions of section 34 of chapter 3 of the Code, is one of the columns on the ballot sheet, described in said section, so changed as to suit the wishes of the voter, and is a list in one of such columns of the names of all the persons for whom the voter desires to vote, with the designation of the office he desires each of them to fill, and every other column on the ballot sheet must be defaced in the manner prescribed in said section, (p. 557).</p> <p>2. Voter Must Only Use One Column.</p> <p>The provisions of said section, requiring the names of all persons for whom the voter desires to vote to be placed in one of such columns, and all other columns on the sheet to be defaced, are mandatory; and, if the voter, in the preparation of his ballot, violates said provisions, his vote cannot be counted, although his intention to vote for certain candidates may be clearly expressed upon the ballot sheet, (p. 558).</p> <p>3. Courts — Ballots—Intention of Voter.</p> <p>The courts are strongly inclined to hold up the legality of ballots, not entirely conforming to the requirements of law, if the intention of the voter can be ascertained, but statutes prescribing the form of ballots and kind of paper on which they are to be printed, and prohibiting marks, figures or devices thereon, by which one can be distinguished from another, are designed to preserve the secrecy of the ballot and to prevent fraud, intimidation or bribery, and they are generally held to be mandatory, and are always so held when such statutes provide that a ballot varying from such, requirements shall not be counted, (p. 559).</p> <p>4. Right or Citizen — Regulation of.</p> <p>Such regulations of the constitutional right of the citizen to vote are reasonable and do not abridge or unduly impede the exercise of such right, although by disregarding them the voter disfranchises himself, provided such regulations are plain and may be easily observed, (p. 559).</p> <p>5. Construction of Statute — Oireumstances.</p> <p>Where the language of a statute is in any manner ambiguous, or the meaning doubtful, resort may be had to the surrounding circumstances, the history of the times, and the defect or mischief which the statute was intended to remedy, (.p. 560).</p> <p>6. Construction of Statutes — When Overruled.</p> <p>The construction, given to a statute by those charged with the duty of executing it, ought not to be overruled without cogent reasons, (p. 561).</p> <p>7. Words — Their Meaning — Sow Interpreted.</p> <p>The popular or received import of words furnishes the general rule for the interpretation of public laws as well as of private and social transactions, (p. 563).</p> <p>8. Statutes — Sow Construed. - -</p> <p>All former statutes on the same subject, whether repealed or unrepealed, may be considered in construing provisions that remain in force, and a repealed section which defines a term' does not change the meaning of the term when found elsewhere in the original connection, and the section repealed may be referred to, to determine the meaning of such terms, (p. 569).</p> <p>9. Words — Judicial Construction — Presumption.</p> <p>When words in a statute, have .acquired, through judicial interpretation, a well understood legislative' meaning, it is to be presumed they were used in that sense in a subsequent statute on the same subject, unless the contrary appears, (p. 572).</p> <p>10. Board of Canvassers — Mandamus.</p> <p>If a board of canvassers adjourn, without having legally performed its duties under section 68 of chapter 3 of the Code, such board may be reconvened by writ of mandamus under section 89 of said chapter and compelled thereby to correct any errors it may have committed in attempting to perform such duties, (p. 574).</p>

<p>1. Indictment — Sufficiency in Murder.</p> <p>2. Venue — Change of — Burden.</p> <p>An indictment in the form, prescribed in section 1 of chapter 144 of the Code, is sufficient to support a conviction of murder in the first degree, (p. 592).</p> <p>The burden of proof is on the prisoner to show, to the satisfaction of the court, good cause to have the trial of the case removed to a county other than that in which the crime was committed, and such cause must exist at the time the application for the change of venue is made. (p. 592).</p> <p>3. Change oe Venue — Facts Necessary.</p> <p>In order that a change of venue may he had, facts and circumstances must he shown, from which the conclusion that a fair and impartial trial cannot he had is fairly deducihle; and the court must he satisfied from those facts- and circumstances, and not from conclusions or opinions of the defendant or his witnesses, that such trial cannot he had. (p. 593).</p> <p>4. Crime — Mob Violence — Venue.</p> <p>Where it appears from the petition and affidavits that, immediately after the commission of the crime, there were rumors and talk of moh violence against the prisoner, hut such rumors and talk were confined to the inhabitants of a small portion of the county, and there had been some excitement and prejudice and feeling against the prisoner immediately after the perpetration of the crime, hut, at thp time of the trial, there is no longer talk of such violence and the excitement, prejudice and feeling have greatly subsided and no trouble is found in obtaining a jury free from exception, the court may properly overrule a motion for a change of venue, (p. 594).</p> <p>5. Murder — Evidence—Res Gestae — Trial.</p> <p>Upon tlie trial of a person, charged, with, murder, evidence of acts and conversations of the accused, prior to the homicide, though not shown to he a part of the res gestae, is admissible when such facts legitimately tend to establish motive’or intention on the part of the defendant to commit the crime with which he is charged; hut such evidence is admissible for that purpose only. Such evidence is not limited to the time or place of the homicide, but will include all such acts and declarations, of any date prior to the homicide and at any place, as will serve to cast light upon the question whether the accused committed the homicide, (p. 595).</p> <p>6. Trial — Wife Murder — Evidence.</p> <p>In such case, it is proper to show, against a prisoner, charged with having murdered his wife, that the deceased had some property, that they had been married but a short time, that he had stated prior to the marnage that if she disposed of her property he would not have her, that he had been displeased after the marriage because of her useless expenditure of money, that he had used language after the marriage, importing that her property was one of the inducements to the marriage, and that he had stated before the homicide that he intended to get shut of her child, and, if he could not do that, he would get shut of both of them, it being shown that the child was murdered at the same time; for the purpose of showing a motive for, and an intention to commit the crime, and how much weight such facts and circumstances, taken in connection with all the other evidence in the case, are entitled to is for the determination of a fair and impartial jury, duly impressed with a sense of their responsibilities and duties, (p. 597).</p> <p>7. Homicide — Declarations of Prisoner.</p> <p>In such case, it is competent to prove any actions and declarations of the prisoner, subsequent to the homicide, tending to show a lack of concern at the death of the deceased or indifference as to her fate, although such acts and declarations would not be admissible as a part of the res gestae, because too remote, (p. 599).</p> <p>8. Prisoner — Voluntary Acts' — Evidence.</p> <p>Anything voluntarily done or said by one charged with crime, which in any way or to any extent tends to show his guilt, is competent evidence and should go to the jury, and, of its weight the jury alone can judge, (p. 600).</p> <p>9. Witness — Examination—Preliminary.</p> <p>It is proper to ask a witness, as a preliminary question, if he was a member of the coroner’s jury upon the inquest held over the dead body of the child, in such case, and where the jury sat. (p. 601).</p> <p>10. Prisoner — Charged With Previous Homicide — Evidence.</p> <p>Where the prisoner, on a former occasion, has been charged with having murdered a person, other than the one for the killing of whom he is on trial, and such former homicide is in no way connected with the other, and the prisoner' has been acquitted of such former charge, it is improper for the attorney for the State, in cross-examining a witness, to propound questions or make remarks, relating in any way to the prisoner’s connection with such former homicide, he not having put his character in issue, (p. 598).'</p> <p>11. Prisoner — Cross Examination — Evidence.</p> <p>Upon the cross-examination of the prisoner as a witness in his own behalf the grounds may be laid for the purpose of contradicting him as to any material matter, although evidence in chief of such material matter was not introduced, but this can be done for no purpose other than to impeach his credit as a witness, (p. 602).</p> <p>12. Testimony — Order of — Trial Court.</p> <p>'The order of introducing testimony is in the sound discretion of the trial court, and it is not error to permit the introduction of evidence out of its regular order, unless it appears that the prisoner was, or may have been, prejudiced thereby, (p. 604).</p> <p>13. Evidence — Rebuttal.</p> <p>Where witnesses for the defense have testified, in chief or on cross-examination, as to material matters, and the grounds have been laid for contradicting them, witnesses may be called to testify in rebuttal for the purpose of such contradiction, (p. 605).</p> <p>14. Evidence Must be Material,</p> <p>Whether a matter is material or collateral, as regards the impeachment of witnesses, depends upon whether the cross-examining party is entitled to prove it in support of his case, (p. 606).</p> <p>15. Evidence — Proper—Material.</p> <p>It is competent to prove against a person charged with murder, that, while confined in jail, in reply to the question of a stranger, concerning the murder, he said “I could tell you the time and all about it, but they told me not to say anything about it;” it is for the jury to determine what the language means and how much weight shall be given to it. (p. 607).</p> <p>16. Voluntary Declarations — Relevancy.</p> <p>While voluntary declarations or extra-judicial admissions of one charged with homicide, concerning its commission, are admissible in evidence against him, evidence of declarations, which he denies having made, and which are not shown to have related to the homicide or to the deceased, although, if made, they may have related to it or to the deceased, are not admissible against him. (p. 598).</p> <p>17. Instructions — "Presumed” Necessary.</p> <p>Point 11 of the syllabus in Cain’s Case, 20 W. Ya. 679, is a part of the settled criminal law of this State, and it is deemed an unwise and unnecessary innovation to so alter the language there used — “A man is presumed to intend,” etc.- — as to make’ it read, in an instruction to the jury', “A man intends,” etc. (p. 608).</p> <p>18. Instruction Must Refer to Evidence.</p> <p>It is essential to maintain the distinction between juridical and moral truth, and it is error to give an instruction in which there is no reference to the evidence in the case. (p. 609).</p> <p>19. Circumstantial Evidence — Sufficient to Convict.</p> <p>A person charged with crime may be convicted on circumstantial evidence alone, if the jury believe from such evidence, to a moral certainty and beyond a reasonable doubt, that the defendant is guilty of the crime alleged against him; and the jury may be properly so instructed and that they have the right to convict upon such evidence in a case in which the evidence is circumstantial, if, from it, they so believe the defendant is guilty, and, further, that such evidence is not only competent but is sometimes the only mode of proof in criminal cases. (p. 610).</p> <p>20. Instruction in Murder — Reasonable Doubt.</p> <p>In a trial upon an indictment for murder it is error to give the following instruction: “The court instructs the jury that reasonable doubt to warrant acquittal in criminal cases is not mere possible doubt, but is such doubt as, after mature comparison and consideration of all the evidence, leaves the minds of the jurors in such condition that they cannot say they feel an abiding conviction of the truth of the charge, or for which reason can be given:” it being uncertain whether the clause, “for which reason can be given,” qualifies the word “doubt” or the word “conviction.” (p. 610).</p> <p>21. Instructions Embodied in Others.</p> <p>It is not error to refuse to give an instruction, enunciating propositions of law which are fully and specifically set forth in other instructions given in the same case. (p. 610).</p> <p>22. Felony Trial — Prisoner Must be Present.</p> <p>In a case of felony, it is reversible error to proceed with the examination of a witness, in the absence of the prisoner, although the questions propounded and answered, in his absence, are preliminary questions, and, upon the return of the prisoner, the same questions are re-asked and re-answered in exactly the same way, and no exception is taken on the grounds of such irregularity at the time, for, to be present at all stages of the trial, is a constitutional right of the prisoner which he cannot waive and of which he cannot be deprived, and such error cannot be cured, (p. 611).</p>

<p>1. Venire — Its Conduct — Sheriff-—Jurors.</p> <p>A mere business or other conversation by a juror' with another person, entirely foreign to the case on trial, in the presence and hearing of the sheriff and other jurors, although reprehensible because it shows a lack of respect for the law on the part of both officer and juror participating in it and is unseeming and reproachful in the administration of justice, will not render a verdict void. (p. 617).</p> <p>2. Separation op Jury — Verdict—Felony Trial.</p> <p>Points 3, 4, 5 and 6 of the syllabus in the case of the State v. CartrigM, 20 W. Va. 32, points 15, 16 and 17 of the syllabus in the case of State v. Robinson, 20 W. Va. 713, points 1, 2, 3 and 4 of the syllabus in Slate v. Harrison, 36 W. Va. 729, and point 5 of the syllabus in State v. Belknap, 39 W. Va. 427, examined and approved, as correctly stating the law relating to the effect of the improper separation or misconduct of jurors upon their verdict, (p. 623).</p> <p>3. Jury in Felony Cases — Actions Prejudice Prisoner.</p> <p>While all the jurors in a felony case are attended by proper officers, there can be no such separation as will raise- a presumption of impurity in their verdict and throw upon the State the burden of showing, beyond a reasonable doubt, that the prisoner has suffered no injury by reason thereof, the verdict being against him; but, under such circumstances, there may be such misbehavior on the part of the jurors as will raise such presumption, (p. 628).</p>

<p>1. Equity — Bill Multifarious — Laches.</p> <p>S. purchased at judicial sale certain lands, the property of J. M. B., at the price of three thousand and forty dollars,, on the 6th day of February, 1886, which sale was confirmed February 9th, 1886. On the 13th day of March, 1886, S. sold the property to C. and B. for the said sum of three thousand and forty dollars and the additional sum of one thousand nine hundred and nineteen dollars, the amount of judgment liens held by S. against .1. M. B., which constituted the next lien on the lands so purchased after the three thousand and forty dollars, and was to.be paid when demanded by S. On the 12th day of June, 1886, under writ of possession issued from the court in which the sale was made, the possession was delivered by the sheriff to C. as assignee of S., the purchaser. J. M. B. left the property, leaving C. in possession, and lived elsewhere until his death which occurred January 10, 1890. On the 9th of January, 1892, J. M. B., in his own right, and as administrator of J. M. B., deceased,' and J. A. B. and others, infant children of Julia B., deceased, by J. M. B., their father and next friend, filed their bill and first and second amended bills, alleging that S. had by verbal agreement with the owner, J. M. B., purchased the land for the benefit of J. M. B. and held same in trust for him, and that C. and B. had, with the consent of S., purchased from J. M. B., at the price of not less than seven thousand dollars, which, after paying S., the residue was to be paid to J. M. B., also that two hundred acres of .the land purchased by S. had been, sold by J. M. B. by oral contract for one thousand five hundred dollars to Julia B., who had fully paid for and was in possession of same; that J. M. B. in his sale to C. and B. reserved from said sale the two hundred acres so sold to Julia B., and another tract known as “Piney Hill” tract, and praying that the sale to S. be held to be a mortgage, and that C. and B. having fraudulently obtained the legal title to the two hundred acres and the Piney Hill tract be held as trustees holding the legal title of the two hundred acres for the plaintiffs (the children of Julia B.) and of the Piney Hill reservation for the heirs of J. M. B., deceased; that C. and B. be required to convey the'two hundred acres to the infant plaintiffs or to pay them one thousand five hundred dollars, and rents and profits; that they be required to convey to the heirs of J. M. B., deceased, the Pine Hill tract; that said heirs recover the rents, issues and profits thereof while in possession of C. and B.; that the administrator of J. M. B., recover from C. and B. the residue of the purchase money due on said land; that the dower of S., the widow of J. M. B., in said lands be assigned to her; and that S. be compelled to account for monies received by him on account of deductions made by creditors of J. M. B. which were made for the benefit of J. M. B., the owner of the lands sold. Held: (I) The bill and Amended bills are multifarious. (II) A court of eqitity will refuse to grant relief to plaintiffs in such case after such unexplained delay in bringing their suit. (p. 645).</p> <p>2. Bill — Allegations—-Evidence.</p> <p>A case in which the evidence does not sustain the allegations of the bills, (p. 646).</p> <p>3. Deckee — Questions of Fact — Appellate Court.</p> <p>Where the issues in a cause are questions of fact depending upon the testimony of witnesses, the appellate court will not disturb the decree of the circuit court unless it is clearly contrary to a decided preponderance of the. testimony in the case, (p. 646).</p>

<p>1. Injunction — Ansioer—Gross Bill — Parties.</p> <p>M. conveyed two hundred and eleven and one-half acres of land in trust to secure K. the payment of a note for five thousand, dollars, the note containing a provision that it was to be subject to any credit to which the maker might show he had paid on said claim or debt, upon a fair adjustment of all matters between them. D., the trustee, proceeding to sell the land under said deed of trust was enjoined by M. on the ground, among others, that he did not owe K. anything on settlement, and prayed for a settlement to be had between them to ascertain his indebtedness, if anything, to K. Defendants filed an answer in the nature of a cross bill alleging prior liens on said land by judgments against M., and making the judgment creditors of M. parties to the suit, and praying for a convention of the lien creditors and to ascertain the amounts and priorities of the liens. Helé, the court did not err in permitting the answer and cross bill to be .filed, (p. 649).</p> <p>2. Coukt — Jurisdiction—Parties■—Special Commissioner.</p> <p>In such case where the court has taken jurisdiction to make settlement between the parties and to ascertain the liens and priorities thereof and to decree sale of the land to pay the liens, it is proper to appoint a special commissioner to execute the decree of sale. (p. 654).</p> <p>3. Court’s Discretion' — In Appointments.</p> <p>And in such case the court will exercise a sound discretion in the appointment of such special commissioner, whether it be the defendant trustee or another person, (p. 659),</p> <p>4. Error to Reverse Must be Prejudicial.</p> <p>It is not sufficient to reverse a decree that it is erroneous. Error must appear to the prejudice of the party complaining thereof, (p. 660).</p>

<p>1. Prisoner — Right to Examine Witnesses.</p> <p>Under section 12, chapter 156, Code, it is the duty of any justice before whom any person is brought for an offense, if demanded by such person, as soon as may be to examine on oath in the presence of the accused, the witnesses for, as well as those against him. (p. 666).</p> <p>2. Malicious Prosecution — Probable Cause — Discharge.</p> <p>In an action for malicious prosecution, the discharge by a justice of the plaintiff, who has been arrested and brought before him for examination, or the refusal of the grand jury to indict him, is prima facie evidence of a want of probable cause, except in a case where it shall appear that such 'discharge, or refusal to indict, was after the hearing hy the justice or the grand jury of the witnesses for the accused as well as for the prosecution, and such prima facie evidence is liable to he rebutted by proof, and syl. 16, Vinal v. Gore and Oompton, 16 W. Ya. 1, is modified accordingly, (p. 668).</p>

<p>1. Town Corpokation — Persons Must Take Notice.</p> <p>Sections 8 and 9 of an Act of the General Assembly of Virginia passed January 14, 1846, incorporating the town of Weston, are as follows: “8. Be it further enacted, That all streets, cross streets and alleys, which are already laid off and opened, or which may at any time be located, surveyed and opened in said town, shall he and they are hereby established as public 'streets and alleys of the said town. 9. That the said trustees shall, within six months after the passage of this act, open all the public streets and alleys of said town; shall make or cause to be made a survey and correct plan or plat of said town, showing distinctly each lot, street and alley, and the size and width thereof, numbering anew all lots, and showing the former as well as the new numbers of all lots which have been numbered heretofore, with such remarks and explanations thereon as they may deem necessary and proper; which plan or plat so made out, and under the hands and seals of any four of said trustees, shall be lodged in the clerk’s office of the county court of Lewis County, there to be recorded and kept; and the said plan and survey so duly made, signed, sealed and recorded, shall, in all future suits and contests concerning the boundaries of the lots, streets and alleys of the said town, be 'deemed, held and taken as full and conclusive evidence between the parties: Provided, that infants femes covert, persons non compos mentis, or out of the commonwealth, shall have six months after such disability shall be removed; within which time they may contest such plan and survey so made and recorded.” Meld: That all real estate owners in the town were bound to take notice of said Act incorporating said town as well as of the acts of the trustees required by said Act to be performed thereunder, in reference to the plan and survey of said town so to be made, signed, sealed and recorded, (p. 672).</p> <p>2. MtnsticiPAl) Cortobation — Survey Recorded.</p> <p>Such plan and survey when duly recorded was full and complete notice to all abutting real estate owners on the streets and alleys of said town of the claims of the town as to the location of the lines of such streets and alleys, (p. 672).</p> <p>3. Public Streets — Acquire no Title.</p> <p>Persons in possession of any portion or portions of such streets and alleys so laid out by having the same enclosed and so continued in possession after the making and recording of such plan and survey held such possession subject to the demands of the town whenever it should see proper to open such streets or alleys to their full width for the public use. (p. 676).</p>

Clarence Johnson and. Hugh Devinney were convicted of murder in a criminal court. From a judgment of the circuit court affirming the same., they bring error.

<p>1. Forfeited Lands — Delinquent Sale• — Deed—Title.</p> <p>T. died intestate in 1849 seized of a tract of land in W. County. Said land was not on the assessors 'hooks in the name of T. or of T.’s heirs for any of the years 1866, 1867, 1868 and 1869. Without authority from and without the knowledge or consent of the heirs of T. there was placed on the assessor’s hooks of said county for the years 1870 and 1871 a tract of five hundred acres of land in the name of T. without charging it with the taxes chargeable thereon for the previous years in which the tract was not on the hooks as required by section 34, chapter 31, Code 1868. Said land was returned delinquent for the non-payment of the taxes so charged thereon for the year 1871, sold by the sheriff and purchased by C., who assigned his purchase certificate to McC., and the land not being redeemed was conveyed by the clerk of the county court to McC. by deed dated October 4, 1877. I-Ield: the deed conveyed no title to the purchaser, (p. 703).</p> <p>2. Forfeited — Non-Entry on Land Bootes.</p> <p>Under section 34, chapter 31, Code 1868, said tract of land was forfeited and the title thereto vested in the State for non-entry on the assessor’s books for taxation for more than five successive years from and after the year 1866 in the name of the heirs of T. (p. 704).</p> <p>3. Former Decisions Approved.</p> <p>Syl. 3 and 4, Cunningham v. Brown, 39 W. Ya. 588, approved.</p>

<p>1. Gband Jury — Sow Summoned.</p> <p>Section 3, chapter 157, Code, requires all grand jurors to be. drawn from the list and box prepared and preserved for the purpose in the manner provided by law, except that when the grand jurors so drawn and summoned fail to attend, the court under section 4 shall direct the sheriff to summon any qualified persons to serve as grand jurors whether included in the prepared list or not. (p. 710).</p> <p>2. Special Judge — When to he Elected.</p> <p>The absence of a special judge or his refusal to hold court when present, vacates his continuance in office, as well as the appearance of the regular judge, without an order to this effect; and the absence of the regular judge justifies the election of some other person to hold the court, when there is no other person present authorized or willing to do so. (p. 711).</p> <p>3. Officer De Facto — Acts Binding.</p> <p>A judgment given or an act done by any person by authority or color of any office is valid and binding, though it may after-wards be decided or adjudged that he was not lawfully elected or appointed or was disqualified to hold the office, or that the same had been forfeited or vacated, (p. 711).</p>

<p>1. Indictment foe Feiony — Preliminary Examination.</p> <p>■Where an indictment for felony is found, the accused is not entitled to a preliminary examination before a justice before trial, (p. 713).</p> <p>2. Foemeb Decisions Approved.</p> <p>The syllabi in State v. Shawn, 40 W. Ya. 1, Landers v. Bail-road Company, 46 W. Ya. 492, and State v. Allen, 45 W. Ya. 74, as to remarks of counsel to a jury, ave re-affirmed.</p>

<p>CbxmiNai Law — Self-Defense—Jury—Verdict.</p> <p>A question of self-defense is peculiarly a jury question, and an appellate court will not set aside a verdict against that defense except in rare cases, where it is very manifestly and plainly against the evidence, (p. 725).</p> <p>Criminal TRIAL — Verdict—Recommendation.</p> <p>Where a verdict finds a defendant guilty of a crime, a recommendation in that verdict hy the jury to the mercy of the court has no legal effect, is mere surplusage, and cannot he considered in an appellate court to set aside the judgment of the trial court infixing punishment, (p. 725).</p> <p>3. Special Judges — Election of — Presumption.</p> <p>Where one person has been elected special judge to hold a court during the absence of the regular judge, and a second special judge is elected, though the record does not state the absence of the first special judge or other cause of his election, but only states that the regular judge is absent, it will be-presumed that there was cause for the election of the second special judge from the absence of the first special judge, or other cause, unless it otherwise appears from the record, and the action of the second judge will be valid, (p.726).</p> <p>4. Special Judges — Number May be Elected.</p> <p>There may be more than one special judge, elected during the same term to hold a court in the absence of the regular judge, if from the absence of the first elected judge there be reason for the election of a second special judge, (p. 727).</p> <p>5. Criminal Trial — Presence of Defendant.</p> <p>If it may be inferred from the record that a person is present in person at a trial, it is sufficient, though the record do not affirmatively say that he was present in his proper person, (p. 727).</p>

Application by the mayor and councilmen of South Morgan-town for a writ of mandamus against the city of Morgantown and others. Writ denied, and rule for writ of mandamus awarded by judgment of the Supreme Court.

[The original opinion in this case is reported in Vol. 48, page 279. This ease was affirmed by a divided Court. The dissenting opinions of Judges BRANNON and DeNT not being in the possession of the Beporter at the time the original opinion was published, are inserted here.]