Volume 50 — West Virginia Reports

<p>1. Appeal — Supreme Court — Judgment of Justice.</p> <p>A writ of error lies from the Supreme Court of Appeals to the order of a judge of a circuit court improperly refusing an appeal from the judgment of a justice of the peace, (p. 3).</p> <p>2. Constitutional Law — Appeals—Amount in Controversy.</p> <p>Such order made in a case tried by a jury in a justice’s court, in obedience to the decisions of the Supreme Court of Appeals, holding an act of the legislature, allowing appeals in such cases, to be unconstitutional, is a case involving the constitutionality of a law, and such writ lies, although the amount in controversy is less than one hundred dollars, (p. 3).</p>

<p>Appeal from Circuit Court, Taylor Couuty.</p> <p>Bill by Melissa Dearing and others against Thomas T. Selvey. Decree for plaintiffs, and defendant appeals.</p>

<p>1. Appeal — Decree—Reasons Not Material.</p> <p>Where the decree appealed from is right the same will not he reversed because the circuit court was incorrect in its reasons for its conclusion, (p. 28).</p> <p>2. Gifts — Donor Dead — Donee—Evidence.</p> <p>Under section 23, chapter 130, Code, a donee is incompetent as a witness to prove the delivery to himself of a gift by the donor, the latter being dead when the testimony is offered.</p> <p>(p. 28).</p>

Action by the Hendricks Company, Limited, against Joseph B. Erb, D. D. Hazeltine, and Grant Erb, before a justice. Execution from circuit court levied on certain property, and third person interposed claim before the justice. From a judgment on trial of right to property, defendant Joseph B. Erb brings error.

<p>1. Building Contract — Estimates Construed.</p> <p>By written contract it is provided that certain contractors will erect a building on a certain lot for the owner thereof for a fixed sum payable in instalments on estimates and certificates of the architects as the work progresses; estimates must he on the labor and material actually used in the building and can not be extended to include material not so used although in course of preparation for such use. The architects can only he required to make estimates and the owner to make payments on the building as it is constructed, (pp. 34, 35).</p> <p>2. Contractor — Material Furnished — Risk.</p> <p>The material furnished by the contractor although the owner of the building may have a conditional interest therein remains the property and at the risk of the contractor until it has been incorporated into the building and has been approved by the architects, (p. 35).</p> <p>3. Material Man — No Mechanics Lien.</p> <p>A material-man who furnishes material to the contractors can have no lien on such building if such material is not incorporated therein by reason of the default of the contractors. (P. 37).</p> <p>4. Contractor’s Insolvency — Good Faith.</p> <p>If such contractors are compelled by reason of their own insolvency to abandon their contract they cannot sue for the work and labor performed unless they allege and prove that either the owner as a dependent condition to the continuance of the work, failed to pay the estimates of the architects when properly made or collusively induced such architects in bad faith not to make such estimates for the purpose of evading the payment thereof and defeating such precedent condition, (p. 40).</p> <p>5. Contractor’s Insolvency — Sis Liability.</p> <p>Personal insolvency on the part of the contractors does not relieve them from the obligations of their contract nor legally justify their abandonment thereof, (p. 40).</p> <p>6. Equity — Receiver—Contractor’s Loss.</p> <p>If such contractors have a court of equity, through a receiver appointed for the purpose,-take charge and make sale of their property they must suffer the loss alone, and a person not interested has no right to complain of the sacrifice of the property thus occasioned, (p. 40).</p> <p>7. Material Men — "Notice to Owner.</p> <p>Material-men who furnish material to such contractors do so at their own risk unless such material is incorporated in the building- for which it is furnished or they notify the owner of such building in advance that they will look to her for payment therefor and she acquiesces therein and receives the material with such condition attached. In the latter case she, and not the contractors, becomes the purchaser of the material, (p. 41).</p> <p>8. Building Contract' — Fixed Price.</p> <p>A contract to erect a building at a fixed price is an entire contract and must be performed in accordance with its expressed terms as contained in the writing creating it, unless properly modified in a legal manner, (p. 140).</p>

<p>1. Carriers — Fellow Servant- — Contract.</p> <p>A foreman of a lumber camp whose duty in the interest of a common employer requires him to ride on a log train to and from the camp to the mill is a fellow servant with the employes of the same employer operating such log train and not a passenger unless there is an express or implied contract requiring him directly or indirectly to pay fare for his passage, (p. 46).</p> <p>2. Employe’s Risk — Negligence of Employer.</p> <p>An employe assumes not only the risk of accident occasioned by the negligence of his fellow servants, but^also of the known negligence of his employer if he accepts or continues in such service after knowledge of such negligence, (p. 46).</p>

<p>1. Pakties to Suit — Judgment Creditor — Substitution.</p> <p>The judgment creditor in a judgment upon a negotiable note must he a party to a suit in equity by a subsequent endorser to enforce substitution to the lien of the judgment against the land of the prior endorser, (p. 49).</p> <p>2. Endorser — Bight of Substitution.</p> <p>A subsequent endorser of a negotiable note who pays a judgment on it in favor of the holder against the maker, a prior endorser and the subsequent endorser, the maker being insolvent, is entitled in equity to substitution to the lien of the judgment against such prior endorser, (p. 49).</p> <p>3. Equity Substitution — Prior Endorser.</p> <p>A subsequent endorser of a negotiable note paying a judgment on it against the maker, a prior endorser and himself, which is a lien on land of the prior endorser, may sue in equity to enforce substitution to the lien of the judgment against the land of the prior endorser, without first getting a judgment at law against the prior endorser for the money paid by him. (P- 51).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by George Johnston and Laura A. Johnston against Annie M. Hunter and others. Decree for plaintiffs, and defendants bring error.</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by D. R. Meighen, assignee, against U. B. Williams. Judgment for defendant, and plaintiff brings error.</p>

<p>Chancery Jurisdiction — Judgment Lien — Prohibition.</p> <p>In a chancery suit brought to enforce the lien of a judgment upon real estate, a circuit court has jurisdiction to determine whether or not such judgment is valid, although it may he void upon its face, and the writ of prohibition does not lie to restrain the judge of such court from proceeding in such cause, (p. 73).</p>

<p>1. Grant — Land Office — Certificate.</p> <p>A copy of grant from the commonwealth of Virginia certified as follows, — “Land office, Richmond. The foregoign is a true copy from the records. Given under my hand and seal of office this 14th day of September, 1881. (Seal) J. M. Brocken-brough, Reg. Land office,” is sufficiently attested" under chapter 130, Code, to he admitted in evidence in the trial of an action of ejectment, (p. 77).</p> <p>2. Deed — Certificate—Sufficiency.</p> <p>So also a copy of a deed from the records of the clerk’s office of the county court of W. County, West Virginia, attested as follows, — “A copy. Teste: H. R. Thompson, Clerk.” is sufficiently atested to he so admitted in evidence in such action under said chapter, (p. 78).</p> <p>3. Attorney in Fact — Warranty—Quit Claim.</p> <p>A deed executed by an attorney in fact, purporting to convey real estate with general warranty, under a power of attorney authorizing only a quit claim deed has the effect to quit claim on the part of the principal although he is not hound by the warranty, (p. 79).</p> <p>4. Former Decisions Approved.</p> <p>Syl. 6 Wilson v. Braden, 48 W. Va. 196, (36 S. E. 367) approved.</p> <p>6. Instructions — Material Facts.</p> <p>An instruction which singles out certain facts and makes the case turn on them ignoring other material facts in the case is erroneous. Price v. Railroad Go., 46 W. Va. 538. (p. 81).</p> <p>6. Deed — Description—Title.</p> <p>A deed or writing which purports to convey described land and pass a title, gives color of title, no matter in what its invalidity may consist, (p. 82).</p> <p>7. Coloe of Title — Boundary.</p> <p>Mere color of title is valuable only so far as it indicates the extent of the claim under it. (p. 85).</p>

<p>Purchase Monet — Assignment—Creditors.</p> <p>L. conveyed to Z. fifty acres of land and reserved his vendor’s lien thereon for eight hundred and fifty dollars of the purchase money, L. removed to the state of Missouri leaving the purchase notes with C., his father-in-law, to receive the money as the notes fell due to he sent to L. Z. without placing his deed on record executed a general assignment to W. trustee on all his property including the fifty acres, to secure his creditors naming them and the amounts of their debts respectively, but not mentioning L. or the purchase money due him on the land. W. the trustee, advertised the property for sale under the trust deed, including the “legal and equitable interest” of Z. in said fifty acres described in said advertisement as “conveyed to said Zents by W. L. Lenhart and wife by deed dated May 20, 1893, retaining a lien for the deferred purchase money due thereon.” The fifty acres was purchased at the sale by F., C. being present at the sale. W. filed his bill invoking the assistance of the court to distribute the proceeds of the trust sale, making the creditors of Z. except L. parties defendant, the cause, was referred to a commissioner to ascertain and report the true amount due to each of creditors of Z. mentioned in the deed of trust also the amount of the debts of any other creditors of Z. W. procured from C. the possession of the purchase notes left by L. for the purpose of getting data for a settlement as trustee, and without authority therefor laid them before the commissioner, claiming that he was attorney for L. and proved them as a general debt against Z., they were so allowed by the commissioner, without the knowledge or consent of L. or of C. and the report of commissioner was confirmed of which neither L. nor 0. .had knowledge or notice. L. brought suit to enforce - his vendor’s lien against the fifty acres of land. Held,: he was entitled to so enforce it. (p. 92).</p>

<p>Oral Agreement — Limitation—Agent.</p> <p>A verbal agreement of which there is no note or memorandum in writing .signed by the agent or party to be charged thereby and which is not to be fully performed within one year from and including the date of its making, comes within the inhibitions of the statute of frauds and cannot be enforced by action at law. (p. 96).</p>

<p>1. Murder- — Innocent Person — Provocation. ■</p> <p>If a person maliciously and without provocation fire a gun charged with a deadly load into a crowd regardless of consequences and kill an innocent bystander, he is guilty of murder, and it is for the jury to say from the facts and circumstances whether such killing was wilful, deliberate and premeditated, (p. 98).</p> <p>2. Suspension Obder — Prisoner’s Presence.</p> <p>A suspension order entered on motion of the prisoner after trial, verdict, judgment and sentence will not vitiate such trial, verdict, judgment or sentence, although such suspension order fail to show the presence of the prisoner in person at the time it was entered, (p. 99).</p>

<p>Error to Circuit Court, Pleasants County.</p> <p>Miles Davis and others were found guilty of contempt, and bring error.</p>

<p>1. Criminal Trial — Demurrer to Evidence.</p> <p>A demurrer to evidence is not a usual or proper practice in a criminal prosecution, (p. 102).</p> <p>2. Evidence — Motion to Exclude — Jury Waived.</p> <p>The accused may move to exclude the evidence, or in a misdemeanor case by agreement or consent a jury may he waived, and the facts submitted to the court for determination, (p. 102).</p> <p>3. Intoxicating Liquors — Excessive Use of.</p> <p>On the trial of a licensee - for selling or giving intoxicating liquors to a person in the habit of drinking to intoxication, it devolves upon the State to show beyond a reasonable doubt that such licensee knew or had reason to believe that such person was in the habit of drinking to intoxication, (p. 103). ■</p>

<p>Appeal and supersedeas from Circuit Court, Wood County.</p> <p>Bill by W. F. Atkinson against D. ¡3. Plum and others. Decree for defendants. Plaintiff appeals.</p>

Bill by Emma M. Cariens against William S. Cariens. Decree for plaintiff. Subsequently defendant petitioned for relief from the terms of such decree, which was granted, and plaintiff appeals.

<p>Appeal from Circuit Court, Webster County.</p> <p>Bill of review by Wilson L. Camden and others against R. C. Ferrell. Decree for defendant, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Bill by Stewart L. McClain against Thomas Batton. Decree for complainant. Defendant appeals.</p>

<p>1. Partition — Tax Deed — Affirmative Relief.</p> <p>In a suit for partition of land, brought by one claiming under an invalid tax-deed, the defendant may allege in his answer, as new matter, constituting a claim for’ affirmative relief, the defects in said tax sale and deed, and ask that the same be set aside, and such relief may be granted in such suit. (p. 147).</p> <p>2. Tax Saljss — Qurative Statutes.</p> <p>The curative provisions of section 25 of chapter 31 of the Code are not retroactive in their operation, and, therefore, they only apply to tax sales made after they were passed, (p. 145).</p> <p>3. Tax Sale — Adjournment.</p> <p>Section 7, chapter 31, Code of 1868, provided that, if the taxes interest, damages and commissions on delinquent lands certified to the sheriff for sale, were not paid previous to the day fixed by law for the sale of the land, “the sain sheriff or collector shall proceed to make sale accordingly; and if the same be not completed on the first day, it shall be continued from day to day (Sundays excepted), between the hours aforesaid, until it shall be completed.” The sheriff of R. County began his sale of such lands December 2, 1871, and then adjourned until January 9, 1872, made no sales between said dates, and completed his sales on said last named date. Held, that the adjournment was unauthorized and invalidates the sale and a deed made in pursuance thereof, it being such an irreguiarity appearing of record as was calculated to materially prejudicate the right of the owners, (p. 141).</p> <p>4. Tax Sale — Purchaser—Delinquent Return.</p> <p>In 1871, H., L. & R. jointly purchased a tract of land at a tax sale, and a deed was made to him in pursuance thereof. H. paid none of the purchase money, and L. & R. permitted the land to he returned delinquent and sold again for the taxes for subsequent year, and purchased it. For another year, still later, the land was again sold and purchased by the State. The land was assessed in the names of IT., L. & R. until 1880, when it was entered on the land books and assessed in the names of persons claiming under L. & R. and continued to be so assessed down to, and including the year 1897, and the taxes were paid by persons so claiming. Held, by section 3 of article XIII. Constitution, the title is vested in the persons claiming through and under L. & R. (p. 146).</p> <p>5. Tax Sale — Purchase Money — Deed.</p> <p>When tne holder of an invalid tax deed and those under whom he claims, have paid no purchase money, taxes or costs under, or in procuring, the same, the person entitled to have the deed set aside need not tender or pay him anything, or offer to do so, in attacking such deed. (p. 148).</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by A. F. Bohrbough against the TJnited States Express Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Bill by B. AV. Foley against F. J. Ruley and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Chancery Cause — Parties Transposed.</p> <p>When a co-plaintiff, being a necessary party, in a chancery cause, 'declines to prosecute further as plaintiff, and moves the court to dismiss the cause as to him, the court should, upon motion of the other plaintiffs, transpose him to the other side of the cause and allow it to be prosecuted against him as a defendant, (p. 178).</p> <p>2. Suits Against Judge — Where Brought.</p> <p>When a judge of a circuit court is interested in a case, which, but for such interest; would be proper for the jurisdiction of his court, the action or suit may be brought in any' county in an adjoining circuit, the county-seat of which county is nearest the county-seat of the county wherein said.judge resides, and, in such case, the suit may be brought and prosecuted in such adjoining county, if none of the parties reside therein, (p. 178).</p> <p>3. Query — As To Unlaioful Detainer.</p> <p>May an action of ejectment or unlawful detainer, under such conditions, be brought in such adjoining county? (p. 179).</p> <p>4. Covenant oe Warranty — Passes With Land.</p> <p>A covenant of warranty is inseparable from the land with respect to which it is made, and passes to the vendee of the cove-nantee as incident to the land and not as an assignment, separate and distinct from the conveyance, (p. 182).</p> <p>5. Covenant Broken — Bight of Action.</p> <p>After breach of such covenant, it can no longer run with the land, nor has any existence or virtue, save for the purpose of supporting a right of action for damages on the part of him who held it at the time of the breach, against the covenantor, (p. 184).</p> <p>6. General Warranty — Paramount Title — Action.</p> <p>If, at the time a covenant with general warranty is made, the land conveyed is actually in the possession of a third party holding the same under a paramount title, there is an eviction eo instanli, and a right of action accrues at once to the cove-nantee. (p. 183).</p> <p>7. Damages — Assignment May Be Made.</p> <p>Such claim for damages may be assigned, in whole or in part, (p. 184).</p> <p>8. Kind of Action — Covenant for Whole Claim.</p> <p>If the assignee takes the entire claim, in such case, his remedy is by an action of covenant, and he has an adequate remedy at law, and cannot sue therefor in a court of equity, (p. 184).</p> <p>9. Assignment foe Part — Equity the Remedy.</p> <p>But, in such case, if only a part of the claim be assigned, the assignee has no remedy in a court of law, and must seek his recovery thereon in a court of equity, although the relief he asks is merely pecuniary, (p. 185).</p> <p>10. Covenantor — Claims Against Estate.</p> <p>When, in such case, the covenantor, before suit brought, has died testate, and the relief sought is only the establishment, of the claim against the estate, and the bill does not pray.for a sale of the testator’s real estate, marshaling of the assets and settlement of the estate, the only necessary and proper parties defendant are the executors of the will. (p. 186).</p> <p>11. Devisees — Heirs—Necessary Parties.</p> <p>If the devisees and heirs be made parties to such bill 'with the executors, a demurrer to it should be overruled as to the executors and sustained as to the devisees and heirs and the bill dismissed as to them. (p. 186).</p> <p>12. Assignment — Words Recessary.</p> <p>Any language or act which makes an appropriation of a debt, fund or chose in action amounts to an equitable assignment thereof, (p. 187).</p>

<p>Appeal from Circuit Court, Wood Comity.</p> <p>Bill by G. W. Niswander and others against T. A. Black and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Apeal from Circuit Court, Marion County.</p> <p>Bill by P. W. Yost and others against A. C. Graham and others. Decree for defendant, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by John R. Seiler and others against the Union Manufacturing Company and others. Decree for complainants, and defendants appeal.</p>

<p>1. Death Sentence — Trial Court Must Refix.</p> <p>If a prisoner pending a sentence of death, obtain a writ of error to this Court, and thereby delay the execution of such sentence until the time fixed tnerefor has passed, and the judgment is afterwards affirmed, it is the legal ministerial duty of the trial court, without requiring the prisoner to he again brought before it, to enter an order fixing a further time for the execution of such sentence, (p. 224).</p> <p>2. Criminal Trial — Ends With Sentence.</p> <p>After a sentence of death has been passed upon a prisoner his trial is at an end and he has no right and there is no necessity for his presence at the further ministeral steps necessary to be taken to carry into execution such sentence. The final denoument alone requires his presence, (p. 225).</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill, by Lorama Crumrine and another against Gussie M. Crumrine and others. Decree for plaintiffs, and defendants appeal.</p>

<p>1. Chancery Cause — Commissioner—Legislator.</p> <p>Where a chancery cause is referred to a commissioner to settle the accounts of a trustee who is a member of the legislature, it is irregular and illegal for such commissioner to proceed to take proof, settle and determine such accounts during tlie absence oJE such legislator, in attendance on the session of the legislature, and for one day for every twenty miles he is. necessarily compelled to travel in going to and returning from such session, (p. 232).</p> <p>2. .Statute Coítstbued — Legislator’s Rights.</p> <p>The trials of civil, criminal and chancery suits are all included within the inhibition of section 5, chapter 12, Code. (p. 232).</p>

<p>Appeal — Conflicting Evidence — Law.</p> <p>When the evidence is conflicting unless the circuit court’s conclusion is plainly wrong, the decree appealed from will he affirmed, (p. 234).</p>

<p>Error to Circuit Court, Randolph County.</p> <p>The Dry Fork Railroad Company was convicted of obstructing a public road, and brings error.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by R. A. Lewis against R. II. Pritchard, C. Crane, and others. Decree for defendants, and plaintiff appeals.</p>

<p>Pahent’s Contract — Infant’s Custody.</p> <p>When a father has committed the custody of his infant child to another person by agreement to be maintained and cared for, which agreement has been acted on by such other person, such agreement will bind the parent, and prevent his reclaiming custody of the child, unless he can show that a change of custody will plainly promote the child’s welfare, moral or physical, (p. 247).</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by John J. Adams against Levina Baker. Decree dismissing the bill, and plaintiff appeals.</p>

Action by Sampson Harbert against the Monongahela Eiver Eailroad Company. Judgment for plaintiff before a justice was affirmed on certiorari, and defendant brings error.

<p>1. Will — Devisees—Construction. .</p> <p>The will of M. E. contained the following provisions: “It is my will that my wife M. E. is to have and to hold all my real and personal property that may remain after paying all my debts as aforesaid, to he enjoyed hy her during her natural life, hut if at any time she may wish she shall he at liberty of selling a portion of the real estate that she may think to her interest and in that case her conveyance shall he valid.” “It is my will that all property that may he in the possession of my wife at her death belonging to said estate shall be equally divided between my two children J. E. and M. E. or their nearest heirs at law.” The life tenant sold ail the real estate of the testator in three separate parcels, at different times, and after her death, the two children named in the will as remaindermen brought ejectment against the vendee of the last part of the land sold. Held: The conveyance was valid and passes the fee in the land. (p. 261).</p> <p>2. Life Tenant — Remainder Over.</p> <p>' Where lands are given to one for life, with remainder over, and power is also given the life tenant to sell or dispose of the land, the life tenant takes the power to sell the fee. (p. 264).</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Action by Ernest W. Koelz against George Brinkman. Decree for plaintiff, and defendant appeals.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by Leeman Maxwell and others against W. J. Cunningham and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. Common Council — Taxation—Abutting Lands.</p> <p>Under the provisions of section 34, chapter 47, Code, as amended by chapter 14, Acts 1895, the common council of a city, town or village can only assess against the abutting property, the two-thirds of the cost of paving a street, between such cross streets or between a cross street and alley as is petitioned for by the owners of the greater amount of frontage on both sides of the street to be paved between any particular cross streets or between a cross street and alley, (p. 326).</p> <p>2. Towni — Street Paving — Cost.</p> <p>If such council proceed to pave such street between other cross streets or between cross streets and alleys for the paving of which the persons owning the greater amount of frontage on both sidos of said street between such cross streets or between such cross streets and alleys have not petitioned, such paving must be wholly at the cost of the corporation, (p. 327).</p> <p>3. Municipal Cokpokation — Powers Delegated.</p> <p>The fact that the exercise of municipal powers of discretion cannot be delegated does not prevent a corporation from appointing committees and investing them with duties of a ministerial or administrative character, (p. 327).</p> <p>4. Statute Held Constitutional.</p> <p>Section 34, chapter 47, Code, as amended by chapter 14, Acts 1895, is constitutional and valid, (p, 328).</p>

<p>(Syllabus same as Dancer v. Town of Mannmgton, decided at this term.)</p>

<p>(Syllabus same as Dancer v. Town of Mannington, decided at tbis term.)</p>

Action by Klapneck & White against Henry Keltz and others. From a decree setting aside a decree confirming a sale under a decree against them, Killian Bader and Philip Maurer appeal. _ Beversed in so far as it reversed the decree of confirmation, and motion of Henry Keltz and wife overruled.

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by O. S. Wilson and others against J. S. Carrico and others. Decree for plaintiffs, and certain defendants appeal. ■</p>

<p>1. Decree — Parties to BuAt — Prejudice.</p> <p>Persons wlio are not parties to a suit and not bound by the decrees entered therein cannot be prejudiced thereby, (p. 342)'.</p> <p>2. Commissioner’s Report — Facts Found Accepted.</p> <p>Where a cijmmissioner’s report is confirmed without exception this Court will not look into the evidence on which it is founded or by which it might be affected, but will accept the findings of such commissioner as to all facts depending on extrinsic evidence as final and conclusive, (p. 343).</p> <p>3. Process to Answer — Bill G-oocS.</p> <p>Process to answer an amended hill before or after it is filed is good. (p. 344).</p>

<p>1. Inipaitts — Suit try Next Friend.</p> <p>Where a debt or demand is payable to infants, suit therefor is properly brought in their names by their next friend, although the money when recovered go to their guardian, (p 347).</p> <p>2. Oil Lease — Conveyance of Land.</p> <p>An oil lease for oil and gas purposes is a conveyance or sale of an interest in land conditional and contingent on the discovery and reduction to possession of the oil or gas. (p. 348).</p> <p>3. Oil Lease — Monthly Bents Construed.</p> <p>A person who accepts an oil or gas lease with a stipulation therein contained to pay a monthly rental until a well is completed or until the expiration of a certain fixed term is bound to pay such rental, although he does not within such term enter upon the land and complete such well, unless he was prevented from doing so by the plaintiffs and not by mere personal default. (p. 348).</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by Daniel Edgell and others against L. L. Smith and others. Judgment for complainants, and L. L. and H. L. Smith appeal.</p>

<p>1. Decree or Judgment — Decedent—Seire Facias.</p> <p>Where the plaintiff in a judgment or decree for money dies, it is not necessary that a writ of seire facias to revive and have execution in the name of his personal representative against the defendant still living should make terre-tenants parties, and an award of execution upon a scire facias which keeps alive the lien of the judgment or decree on land as to the defendant, will also keep the lien alive as to the terre-tenants, though not parties to the scire facias, (p. 363).</p> <p>2. Judgment Lien Exists — Execution Suspended.</p> <p>The lien of a judgment upon land exists, though execution may he suspended hy the death of the defendant, and may he enforced in equity without revival hy scire facias so long as the scire facias may lie on the judgment, (p. 365).</p> <p>3. Revival of Judgment.</p> <p>Scire facias. Office of to revive a judgment, (p. 365.)</p> <p>4. Lien of Judgment Arises per se.</p> <p>Tlie lien of a judgment upon land arises from tlie judgment per se irrespective of execution upon it so long as the judgment is not barred by limitations, (p. 366).</p> <p>5. Soire Facias — Defense Thereto.</p> <p>To a soire facias to revive a judgment payment, release, set-off or other matter arising after judgment, may be pleaded, but not any matter existing prior to the judgment, (p. 368).</p> <p>6. Parties Interest — Effect of Judgment.</p> <p>A privy in estate is not affected by a judgment against him from whom the privy derived his estate rendered after such privy acquired his estate, (p. 369).</p> <p>7. Judgment — Revival—Execution—Decedent.</p> <p>An order reviving a judgment and awarding execution for money in the name of a personal representative of a deceased party for a less sum than the original recovery by reason of partial payments since the judgment is not void as a new judgment or because of variance in amount from the original judgment. (p. 370).</p>

<p>1. Indictment — Form—Intent.</p> <p>An indictment under section 9, chapter 152, Code 1899, which charges that the defendant “did attempt” to murder another, is good, though it does not charge that the act constituting the attempt was done with intent to murder. The word “attempt” implies the “intent.” (p. 371). ■ ■</p> <p>2. Indictment — Attempted, Murder.</p> <p>Upon an indictment under section 9, chapter 152, Code 1899, for attempting to commit murder the' verdict may convict of an attempt to commit murder in either the first or second degree, and the verdict not only may, hut must specify the degree of the murder attempted, (p. 372).</p>

Petition of John W. Poling for a writ of mandcumus to' the board of education of the district of Philippi. From an-order refusing the writ, petitioner brings error.

<p>1. Fra.tjdui.ekt Conveyance — Appeal—Equity.</p> <p>Where a suit in equity is brought for the purpose of setting aside a fraudulent deed of trust on land, charged by will, probated before the time of the execution of such 'deed, with payment of a sum of money to the testator’s estate, and the bill ■does not allege payment of the money'so charged upon the land, and is dismissed at the hearing in the court below, and the decree is reversed on appeal, and the cause remanded, and no notice is taken in the opinion or decree in the.appellate court, of the lien created by the will, the question of the satisfaction of such lien is not res adjudícala, (p. 384).</p> <p>2. Fraudulent Conveyance — Priorities—Liens.</p> <p>In a suit brought to set aside a fraudulent charge upon real estate when there are valid liens on the land, prior to that of the plaintiff, in such suit, and the money secured by them is due and payable, the court should ascertain the amounts and priorities of such liens, and decree the land to be sold to satisfy said liens as well as that of the plaintiff, (p. 387).</p> <p>3. Deceee — Prior Liens — Sale.</p> <p>In such case it is reversible error to decree a sale ol the land subject to prior liens, (p. 389).</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by Milton A. Ammons and others against Howard L. Ammons and others. Decree for plaintiffs, and the South Penn Oil Company appeals.</p>

<p>1. Special Jtjdge — His Election.</p> <p>Where it is shown by the reccord that on the day fixed by law for the commencement of a regular term of the criminal court of a county the regular judge thereof being sick and failing to attend and hold said court, at the commencement of said term, the clerk of said court proceeded to hold an election for a special judge of said court as provided by chapter 11.", section 11, Code of West Virginia and several attorneys, named, being placed in nomination and the clerk of said criminal court having held said election declares as the result thereof that J. W. V. received a majority of the votes cast by the attorneys present and practicing in said court, and was duly elected judge of said criminal court, during the temporary absence of J., the regular judge, thereupon said J. W. V. appeared and took the several oaths prescribed by law. Eeld, the law has been substantially complied with and the election is valid, (p. 414).</p> <p>2. Term oe Court — Jurisdiction—Trial.</p> <p>Such term of court commenced on the 28th day of January, 1901; the grand jury returned an indictment for a misdemeanor against F. & I., which was tried at same term and a verdict of guilty rendered; on February 9th defendants moved to set aside the verdict and grant a new trial; before the motion was passed upon by the court, on the 14th day of February, the regular judge died” and on tlie same day the sitting special judge was duly appointed and qualified to fill the vacancy, and proceeded with the business of the term unbroken, and on the following day the court overruled the motion to set aside the verdict and grant a new trial. Held, the court had jurisdiction and prohibition will not lie to inhibit it from entering judgment on said verdict, (p. 416).</p> <p>3. Death op Keguxar Judge — Sis Succcessor.</p> <p>The death of the regular judge did not end the regular term of the court then in session, the death of the judge and the qualification of his successor happening on the same day, the court proceeded without intermission — the same term. (p. 417).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Thomas M. Darrah against the Wheeling Ice & Storage Company. Verdict for plaintiff was set aside, and he brings error.</p>

<p>1. Indictment Joint — Separate Trials.</p> <p>Upon a joint indictment for felony against 'several persons any defendant may elect, under section 8, chapter 159, Code, to he tried separately but is not entitled to demand to be tried jointly, (p. 424).</p> <p>2. Indictment — Co-Defendant—Conspiracy.</p> <p>Where a person is indicted jointly with others as principal in the commission of a robbery, it is error to instruct the jury that in case they believe from the evidence beyond a reasonable doubt that the defendant on trial conspired with bis co-defendants or any one of them to commit the offense, they should find him guilty, although he may not have been present at the time the robbery was committed, (p. 424).</p> <p>3. Conspirator — Accessory Before the Fact.</p> <p>A conspirator who is absent at the time the felony is committed, taking no part in the actual commission of the offense, is an accessory before the fact and can only be indicted and punished as such. (p. 425).</p> <p>4. Accessory — Indictment Jointly — Separately.</p> <p>Huch accessory may be indicted either with the principal or separately, but in either case he must be indicted as accessory and not as principal, (p. 425).</p> <p>5. Indictment? — Principal—Accessory.</p> <p>An accessory before the fact to a felony cannot be convicted on an indictment against him as principal, (p. 426).</p> <p>6. Indictment — Record of Finding Essential.</p> <p>The record of the finding of the grand jury is essential, as the only legal proof of the finding of the indictment, and without such record the indictment cannot be maintained, (p. 430).</p>

<p>1. Ejectment — Defense—Forfeiture.</p> <p>If the defendant in an ejectment suit shows that the land in controversy has been omitted from the land books of the proper county for five successive years before the trial, he makes a prima fade case of forfeiture and defeats the plaintiff’s right to recover, unless plaintiff can show that the land was assessed improperly in another county and the illegal taxes thereon paid or that the land has been redeemed, regranted, or resold so as to reinvest the title in him. (p. 432).</p> <p>2. Harmless Error — Defendant’s Case.</p> <p>If on the undisputed facts the case is plainly for the defendants all errors committed by the court on the trial are harmless errors so far as the plaintiff is concerned. Banlc of Huntington -v.Napier, 41 W. Va. 481. (p. 437).</p>

Bill by James Hanley and others against the Eandolph county court and others. Decree for complainants, and John P. Conn, defendant, appeals..

<p>Appeal from Circuit Court, Randolph County;</p> <p>Application by the board of education of the district of Beverly and others against Jacob G. Ward and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by W. W. Bowman against Dewing & Sons in ejectment. Judgment for defendant and plaintiff brings error.</p>

<p>1. Bile in Equity — Neto Trial — Defense.</p> <p>A bill in equity to set aside a judgment and obtain a new trial must allege facts showing a valid legal defense to the original cause of action, in addition to the mistake or other ground of relief, and the defense stated must be of such a nature that it would be likely to change the result upon a new trial. The mere general statement that a party has a valid defense will not do. (p. 455). . '</p> <p>2. Pleading — Fads.</p> <p>In a pleading a statement of what is only a conclusion of law, without facts given, or what is only the opinion of the party on facts not given, is bad. (p. 456).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Kaymond Uthermohlen against the Bogg's Run Mining & Manufacturing Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Buiijdiito .association — Premium,—Lump Sum.</p> <p>While a building association may fix a minimum premium payable in advance or in periodical installments, such premium must be a lump sum, certain and definite, and not a percentage payable indefinitely at fixed periods, (p. 470).</p> <p>2. Pekcentaoe — Interest—Usury.</p> <p>A percentage payable indefinitely at fixed periods is interest, and although it be called “premium,” and is in addition to the legal rate of interest already charged, it is usurious, and should tie expunged from the account. Gray v. Baltimore Building and Loan Association, 48 W. Va. 164, (37 S. E. 63). (p. 471).</p>

<p>1. Motobmaet — Evidence—Injury.</p> <p>A declaration by the mótorman running on an electric car made while the car was still on the body of one it had run down, that “I saw the child, but thought I could pass it,” or, “This is a terrible thing, I saw the child but thought I could' run past it,” is admissible in evidence as a part of the res gestae in an action for the injury, (p. 476).</p> <p>2. Motorman — Must Exercise High Watchfulness.</p> <p>A motorman in charge of an electric car moving in the public street where he has reason to expect little' children are playing, must exercise a high degree of watchfulness in the operation of the ear. (p. 478).</p>

<p>Appeal from Circuit Court, Harrison County. '</p> <p>Action by Horner-Gaylord Company against W. C. Fawcett and others. Decree for defendants and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by the Ohio River Railroad Company against William Johnson, Jr. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Bill by W. S. Stuart, administrator, against Annie M. Neely and others. From the decree entered certain defendants appeal.</p>

<p>1. Attachment Against Partnership.</p> <p>In an attachment suit in equity against a partnership where the attachment is levied on the social assets, it is necessary that the partners should both be before the court either by actual or constructive notice before any decree he made in relation to such property, (p. 515).</p> <p>2. Errop. — Abatement—Dismissal.</p> <p>It is error for the court to abate such attachment and dismiss such suit when one of the partners has been served with summons because an order of publication has not been taken against the other, hut the court should require the plaintiff to mature his suit within a reasonable time fixed as to such absent partner, or suffer the abatement of the attachment and dismissal of the suit. (p. 516).</p>

<p>1. Answer — General Objection — Exceptions.</p> <p>A general objection to an answer is good if' it contain no matter whatever presenting a bar to any of the relief contemplated by the bill; but if it contain some matter good as such bar, and other matter not good, a general objection will not answer, but there should be exceptions pointing out the special objections, (p. 518, 519).</p> <p>2. Appeal — Conveyance—Error Released.</p> <p>If an appellant, pending his appeal, convey all his right involved in the appeal to his adversary in the appeal, or in any way release error, the fact may be pleaded in bar of his appeal; but failure to so plead will not conclude the right of such adversary under his conveyance, (p. 519).</p> <p>3. Cojstveyanoe oe INTEREST — Coparcener.</p> <p>A conveyance from one coparcener to another coparcener of his undivided interest in the common land, does not pass his pre-existing demand against his coparceners or their interests in the land for improvements put upon the land, unless such demand is expressly released or transferred in the conveyance, (p. 521).</p> <p>4. Supplemental Answer — Amended Bill.</p> <p>If a supplemental answer is filed presenting new matter of defense, the plaintiff has right seasonably to file an amended bill to meet such new matter, (p. 522).</p> <p>5. Special Replication — Special Reply — Affirmative Relief.</p> <p>A special replication is not available in chancery practice, but an amended bill must be used. Under section 35, chapter 125, Code, a special reply may be made to an answer of new m'átter calling for affirmative relief and answering the purpose of across bill; but a special replication is a different thing, (p. 522).</p>

<p>1. Petition- — Equity—Amended Bill.</p> <p>Where a petition is filed in a suit in equity hy one not a party to it, and whose rights are not mentioned in the bill, and such petition asks relief touching the subject matter of the bill, and such petition discloses an interest in the petitioner in such matter hostile to the claim of the plaintiff, the plaintiff must file an amended bill to bring the petitioner and his claim before the court before there can be an adjudication of the plaintiffs rights. The mere petition does not make the petitioner a party for the purposes of decree, (p. 525).</p> <p>2. Necessary Parties — Decree—Reversal—Amended Bill.</p> <p>Where necessary parties, as disclosed by the record, are not before the court, a decree affecting their rights will he reversed and the cause remanded for an amended bill bringing them and their rights in, without passing on the merits, (p. 625).</p> <p>3. Defect in Parties — Demurrer.</p> <p>One not a party to a bill can make no defense to it by demurrer or answer, (p. 526).</p> <p>4. Subrogation — Lien—Parties to Bill.</p> <p>Where a bill seeks subrogation to-a lien on land, and there are other persons holding liens on the land in conflict with such claim of subrogation, they must be made parties to the bill, (p. 527).</p>

<p>Petition for mandamus by J. B. Roberts and others against J. R. Pauli, Judge.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by the Blue Jacket Consolidated Copper Company against Arnold C. Scherr, auditor of the State of West Virginia. From a judgment sustaining a demurrer, plaintiff appeals.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Henry Schmulbach and others against' Joseph Speidel and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Paetnership — Bill to Dissolve■ — Sufficiency.</p> <p>A bill filed for the purpose of establishing the fact of a partnership between plaintiff and defendant and having same dissolved and the partnership accounts settled, which partnership is denied by the defendant, and the allegations of the bill are sufficiently definite to show an agreed partnership and that the same went into actual operation, and prayer “that the status of the parties, plaintiff and defendant, he ascertained and settled; a partnership decreed as existing between them; the interest of each partner he ascertained and declared; that an account be taken of all matters concerning the partnership including the assets and liabilities of the concern and the individual accounts of the partners; that a decree be entered for the sale of the partnership; and that the defendant be required to discover the profits and earnings of the copartnership: Held, sufficient on demurrer, (p. 576).</p> <p>2. Amended Bill — Receiver.</p> <p>In such a case, an amended and supplemental hill praying for a receiver having been filed, where the defendant is in -possession and conducting a successful and prosperous- business; who denies the partnership, and is solvent and able to respond in damages, the court will not appoint a receiver, (p. 577.)</p> <p>3. PabtneRSiiip — Receiver—Misappropriation of Property.</p> <p>In a suit to dissolve a partnership and settle its accounts, where the defendant in possession denies the partnership, a receiver should npt be appointed unless the fact of partnership is clearly proven in the cause and there is danger of the loss or misappropriation of the property of the firm or a material part thereof, (p. 579).</p>

<p>Error to Circuit Court, Hancock County.</p> <p>Action by John Porter against John M. Mack and another. Judgment for plaintiff, and defendant Greenberry B. Boren brings error.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Andrew J. Gall and others against the Tygarts Valley Bank. Decree for plaintiffs, and defendant appeals.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Suit by Maggie Bennett against W. N. Pierce. Decree for plaintiff, and defendant appeals.</p>

<p>1. CorpoRations — Torts—Damages.</p> <p>Corporations can be held liable for torts. They can be beld liable for damages for torts 'done in pursuance of conspiracy and combination between them and other corporation's or persons, just like natural persons, (p. 613).</p> <p>2. - Competition — Patronage—Contract.</p> <p>One may, without liability, in furtherance of his own interest in the competition of business, establish any works competing with, another, and may induce customers of that other to withdraw their patronage from him, in order to obtain business for himself, though it injure, and is intended to injure that other person’s business, if there is no contract between such person and his customers. The motive of the person so doing, though malicious, is not material, his acts being lawful* But if he induce such withdrawal of custom, not in bona fide neighborly advice, nor in free right of competition to benefit his own business, but wantonly only to injure that other person, he is liable to action. What one may do thus, several with same justification may combine to do, (p. 615).</p> <p>3. Conspiracy — Not Unlawful — Injury.</p> <p>Where several combine and agree to do a lawful act, violative of no duty to another due from them, it is not an unlawful conspiracy subjecting them to an action by him, though the act injure him, and was so intended, (p. 615).</p> <p>4. Maliciousness — Violation of Contract — Actionable.</p> <p>If one wantonly and maliciously, whether for his own benefit or not, induce a person to violate his contract with a third person to the injury of that third person, it is actionable, (p. 616).</p> <p>5. Cause oe Action — Pleading—Bill of Particulars.</p> <p>The cause of action or ground of defense must be given in the pleadings, not in bills of particulars; but where the pleading is allowably, under the law of pleading, general, so a's not to fairly apprise -the adverse party of what he has to meet, a bill of particulars may be demanded to amplify the pleading, so as to more minutely specify the claim or defense, and to prevent surprise on the trial; but no call for a bill of particulars of evidence can be made. (p. 623).</p>

<p>1. Municipal CORPORATIONS.' — Police Power> — Charter.</p> <p>The police power of a municipal corporation depends upon the will of the legislature, and a city, town or village can only exercise such police power as is fairly included in the grant of powers toy its charter, (p. 630).</p> <p>2. Form of City Charters. — Police Power Inmiled.</p> <p>Section 28 of chapter 47 of the Code, toy vesting in the councils of municipal corporations power and duty “to protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein,” does not confer power to punish acts made criminal toy the State law and fully covered thereby, except such as would he attended with circumstances of aggravation not included in the State law. Such power must be specifically and expressly given by the legislature before it can toe exercised toy such corporation. (pp. 630, 631).</p> <p>3. Deadly Weapons. — When Crime to Carry.</p> <p>The carrying of deadly weapons toeing an offense fully provided for and punished toy law and toeing an act not in itself amounting to a breach of the peace, cannot toe made an offense and punished toy a municipal ordinance, unless expressly authorized toy the municipal charter, (p. 632).</p> <p>4. Prohibition. — Mayor’s Jurisdiction — Ordinance.</p> <p>Prohibition lies to restrain the mayor of a town, incorporated under the provisions of chapter 47 of the Code, from imposing a fine upon a person for carrying deadly weapons and from collecting the same, under an ordinance malting such act an offense and punishing it toy fine and imprisonment, as such ordinance is void and the mayor is without jurisdiction in the premises, (p. 635).</p>

<p>1. Attachment. — N on-resident — Appearance.</p> <p>In aruaction at law against a non-resident, in which, an attachment has been sued out, if the absent defendant appears generally to the action, there may be a personal judgment only against him, or a personal judgment and an order and judgment subjecting the attached property, although there is no order of publication in the case. (pp. 640, 641).</p> <p>2. Writ of Error. — Record—Jurisdictional Facts.</p> <p>Although a writ of error lies generally only for errors of law apparent in the record, if a court proceed in a cause, upon the erroneous assumption or finding of some preliminary fact, essential to its exercise of jurisdiction in the premises, as when there is want of such proceeding as is necessary to bring the party into court and mate him a party to the record, its finding in respect to such matter of fact is reviewable on such writ, (p. 641.)</p> <p>3. Appearance by Attorney Unauthorized.</p> <p>The action of the court below in overruling a motion to set aside a judgment before the expiration of the term at which the judgment was rendered on the ground that there was an unauthorized appearance by attorney as to the judgment debtor, when several orders entered in the case at former terms show a general appearance for him by attorney, will not be disturbed by the appellate court unless the motion was supported by a clear preponderance of evidence, (pp. 642, 643).</p>

<p>From Circuit Court Ritchie County. Action by L. J. Peters against Johnson, Jackson & Co. Judgment for defendants. Plaintiff brings error.</p>

<p>1. Justice’s Summons — Defective Return — Appearance.</p> <p>If a defendant to a suit instituted before a justice after making a specific appearance for the purpose of quashing a fatally defective return of service of summons, enters a general appearance to the action, proceeds with the trial of the case the presentation of his defence and on judgment being ren-l dered against him, appeals to the circuit court, he thereby cures the defects in the service and abandons his specific appearance and submits himself to the jurisdiction of the justice and the court, and after final judgment rendered against him by such court he cannot prohibit the collection of the same because of the defective return of the summons, (pp. 654, 655).</p>

From Circuit Court, Roane County. G-. B. Simmons and W. S. Simmons filed their petition in the circuit court of Roane County against J. B. Thomasson and R. E. Petty, justice, praying for writ of prohibition. Writ granted petitioners. Thomasson appeals.

<p>1. Fraudulent Assignment — Demurrer—Amended Bill.</p> <p>A bill in equity to enforce a legal claim under section 1, chapter 106, Code, which, distinctly attacks a general assignment by the defendant as fraudulent and made with intent to delay, hinder and defraud his creditors and prays that the lien of attachment of plaintiff be established and enforced and for general relief, is good on demurrer and an amended and supplemental bill may properly be filed containing further allegations of fraud and conspiracy in making the assignment, and sale by the trustee thereunder of the assigned property, with prayer that both the ■ assignment and sale by the trustee be set aside as fraudulent and void. (p. 681).</p> <p>2. Gift — Conveyance Fraudulent — Preference.</p> <p>Syllabus pt. 5, Bank v. Parsons, 42 W. Ya. 137 is not applicable in a "suit to set aside a gift, conveyance, or transfer, etc. as fraudulent under section 1 chapter 74, Code, and in which the question of unlawful preference is not involved, (p. 681).</p> <p>3. Purchaser — Insolvent’s Property — Bidder.</p> <p>When a bidder is paid a consideration to refrain from bidding on the property of an insolvent debtor in order that the purchaser may obtain it at a reduced price, it is a fraud upon the rights of creditors, (p. 688).</p> <p>4. Depositions — Exceptions—Court’s Decree,</p> <p>When evidence is introduced in a cause to which there are objections and exceptions tafeen and a decree rendered without the court passing upon such objections and exceptions and there is sufficient legal evidence in the cause together with the facts and circumstances of the case to justify the decree, the same will not be reversed because the court may have considered at the hearing the evidence so objected and excepted to; or because it failed to prepare such objections and exceptions, (p. 692).</p>