Volume 51 — West Virginia Reports

<p>1. Bill op Discovery — When May he Filed.</p> <p>A bill oí discovery may be filed by a party to an action at law to compel discovery in aid of the action or of tbe defence thereto, although by sections 22 and 23 of chapter 130 of the Code the party filing such bill may compel the other party to attend and be examined as a witness for him in relation to the same matters, (pp. 8, 9).</p> <p>2. Bill of Discovery — Appeal—Amount in Controversy.</p> <p>An appeal lies from an order requiring an answer to such a bill when the amount involved in the action is of greater value or amount than one hundred dollars exclusive of cost, although it is not an order for the payment of money nor one directly involving freedom, (p. 6).</p> <p>3. Discovery — When it Lies — Partnership.</p> <p>Although as a general rule, a bill of discovery does not lie for the purpose of determining whom the plaintiff therein may sue at law, if the bill alleges that the defendants' have been sued at law as late partners and sets out enough to show that a good cause of action has been alleged against the defendants as such, co-partner's, and the defendants have filed a plea in abatement denying that the firm or company whose name is signed to the agreement sued on was, at the time said contract was made or at any time, a partnership composed of the 'said defendants, they may. he required to discover whether they were such partners to aid the plaintiff in maintaining his side of the issue thereby tendered (pp. 17, 18).</p>

<p>1. INJUNCTION Bond — Counsel Fees.</p> <p>Reasonable counsel fees may be included in estimating tbe •damages in an action on an injunction bond, when the injunction has been improperly or wrongfully sued out, and the counsel fees were paid, or agreed to he paid, for procuring the dissolution of the injunction, (p. 22).</p> <p>2. Injunction — Personal Property — Promissory Notes.</p> <p>A bill to enjoin a sale of personal property under a deed of trust, securing the payment of non-negotiable promissory notes, given for the purchase money of the property, alleging also that the plaintiff therein had refused to accept the property under the contract and had caused the same to be sold under attachment proceedings and purchased it, is essentially and primarily a hill for injunction, although it prays a rescission of the contract of sale and the injunction having been dissolved, counsel fees are allowable as part of the damages in an action on the bond. (pp. 22, 23).</p> <p>3. Damages on Bond — What Included.</p> <p>In such case, money actually and necessarily paid out for traveling expenses and other legitimate purposes, in procuring the dissolution of the injunction, should be included in the damages, but nothing should be allowed as compensation for loss of time nor for the detention of the property, (p. 24).</p> <p>4. Issues on Pi.eas — No Judgment Until Trial.</p> <p>When in a joint action upon a joint, or joint and several, demand, there has been service of process on all the defendants, in a case in which an order for an inquiry of damages is required, and the plaintiff has filed with his declaration the affidavit provided for in section 46 of chapter 125 of the Code, and one of the defendants has not appeared, but the others have appeared and filed pleas accompanied by counter affidavits as provided in said section, there can be no final judgment against the defendant in default until after the determination of the issues on the pleas. The judgment by default is dependent on the result of the trial of the issues joined, and the final judgment must be joint, (pp. 25, 26).</p> <p>5. Plea NoN-DAMNiiraATUS — When Proper.</p> <p>The plea non damnificaius is only proper when the condition of the bond declared on is to indemnify and save harmless. In an action on an injunction bond it cannot be filed, for the condition of the bond is to pay costs and damages, affirmative acts. (p. 26).</p> <p>6. INJUNCTION — Bes Adjudicata.</p> <p>In such action, a plea “that if the plaintiff was damaged and injured in any wise by reason of any matter or thing in the said declaration complained of it was by reason of its own wrong and ’default” is bad; for that the injunction was wrongfully or improperly sued out is then res judicata, (p. 28).</p>

<p>1. Sale oe Real Estate — Mistake—Vendor—Vendee.</p> <p>When a deed is made in pursuance of a contract of sale of real estate, entered into under a misapprehension, or in ignorance, of the location of the vendor’s land and conveys to the purchaser a tract of land, wholly different in location and character from the land contracted for, a court of equity will, at the suit of the vendee, rescind the contract of sale and put the parties in statu quo, although there was no fraudulent intent on the part of the grantor. In such case rescission results from the mutual mistake -under which the parties entered into the contract, (p. 31).</p>

<p>1. Insurance Policy — Premiums—Payment—Beneficiary.</p> <p>A paymaster’s order, given by an employe of a railway company to an insurance company, for The payment, out of the wages of the employe thereafter to be earned, of an insurance policy premium in installments, reciting that the assignment is “in lieu of payments,” and containing a clause whereby the insured agrees that failure from any cause to deduct from his wages any of the installments shall be at his risk and effect a forfeiture of all rights of himself and his beneficiary under the policy, and waives, for himself and beneficiary, notice of the payment or non-payment of the premium, is not equivalent to payment of the premium, although delivered by the insurance company to the paymaster of the railway company and filed in his office; and if, after it is so filed, the employe continue in the service of the railway company and earn wages continuously until the time of his death by accident, but, by inadvertance, the premium is not deducted, and he draws all his wages and the premium is not actually paid, no recovery can be had on the insurance policy, when the policy and application therefor make the order a part of the policy and contract, (pp. 40,41).</p> <p>2. Premium — Payment—Installment—Presumption</p> <p>When, in such case, the paymaster of the railway company testifies that no deductions from the wages of the employe were made under the order, and the proper officer of the insurance company testifies that the premium was not paid, the mere fact that there were found in the possession of the deceased checks of the railway company for amounts less than his monthly wages, but the amounts of the checks are such that the addition thereto of one or more of the premium installments would not make the amount of the wages for any month of service, is not sufficient to raise a presumption of payment nor of deductions having been made, and will not support a verdict for the plaintiff, (pp. 42, 43).</p> <p>3. Premium — Payment—Circumstances.</p> <p>Such fact would he competent and ’sufficient evidence of payment if aided by other circumstances, which, taken with it, would furnish ground for a reasonable inference of payment, hut, standing alone and the inference of payment contravened by positive testimony, it is wholly insufficient, (p. 48).</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Joseph M. Fleming against The Baltimore and Ohio Eailroad Company.</p> <p>’ Judgment for plaintiff and defendant brings error.</p>

<p>1. Contkact — Fraud—Mistake—Competent Parties.</p> <p>In ttie absence of actual fraud or mistake a court of equity-will not interfere witb a contract made between parties competent to contract, (p. 76). •</p> <p>2. Corporation. — 'Purchase of Real Estate.</p> <p>Under section 24, chapter 53, Code, a mining corporation, after it is fully organized, may purchase r.eal and personal estate for the use of such corporation and for its other corporate purposes and business, at such price, upon such terms and conditions, as may be agreed upon by the owners and directors or stockholders of such corporation, and may pay for such property by issuing so many shares of its capital stock to the vendor as are equal in amount at par value to the price agreed upon for such property, but not to exceed its authorized capital, (p. 78).</p> <p>3. Payment for Stock — Valuation—Fraud.</p> <p>The fact that property so received by a corporation in full payment for stock issued is taken at an overvaluation will not make the holder of such stock liable as for unpaid subscription until tlie transaction has first been impeached for fraud upon the corporation, (p. 81).</p>

<p>1. Devise of Estate — Life Tenant’s Charge.</p> <p>F. devised to J. and H., sons of his daughter C., one hundred acres of land, describing it, “upon the following conditions, viz': 'The said J. and H. are to take care of and provide for all of the reasonable wants of my daughter C. during her lifetime, provided she resides with them.” Held: That such care and provision for all the reasonable wants of C. are a charge upon the land devised, and held further, under the provisions of the will it is a voluntary matter with C. whether she resides with the one or the other of her said sons, her residing with the one or the other is a condition precedent to his'taking care of and providing for her wants, and, until he shall refuse to so care and provide for her, she has no cause of action against him. (p. 87).</p> <p>2. Will — Provisions Limited — Contributions.</p> <p>There is no provision in the will for either of them to provide for her away from his home and if one is to take care of her and keep her at his home and the other contribute to the expense thereof it must he by contract or mutual arrangement between them. (p. 88).</p> <p>3. Co-Obligors — Contributions—Support.</p> <p>As long as one is ready and willing to take and care for C., it being a matter of choice with her as to where she will reside, he cannot be compelled to contribute to her support elsewhere. (p. 90).</p>

<p>1. Appeal — Proper Remedy Not Prohibition.</p> <p>Where an appellate court reverses the decree of a circuit court, and adjudicates the principles then involved in the case, and remands the case, and in further proceedings it is claimed that the circuit court is disregarding the decree of the appellate court, and departing from its decision, and re-hearing matters heard in the appellate court, no writ of prohibition lies for the reason that an appeal is the proper remedy, (pp. 93-5).</p>

<p>1. Nuisance — Lawful Business — Damages.</p> <p>Where one places a steam hoiler upon his premises and operates the same in lawful husine'ss with care and shill, so that it is no nuisance, in the absence of proof of fault or negligence in him, he is not liable for 'damages to his neighbor occasioned by the explosion of the boiler, (p. 97).</p> <p>2. Negligence — Presumption does not arise.</p> <p>A presumption of negligence does not arise from the mere fact of the explosion of a steam boiler used by one engaged in lawful business. Negligence on his part must be shown, (p. 99).</p> <p>3. Juby — Instruction—Particular Pact.</p> <p>While two special questions covering the same inquiry should not be put to a jury, yet if one covering some matter of another is so drawn as to more definitely and pointedly inquire as to a particular matter controlling the case, it should be given. (p. 100).</p>

<p>1. License — Municipal Power Over.</p> <p>Chapter 44 of the Acts of 1899 give to the council of the City of Grafton exclusive power to-grant or refuse license to sell spirituous liquors within that city, regardless of the action of the county court, and the provision of the act that, the county court shall grant state license after the council has granted such license, is mandatory upon the county court, (pp. 103, 104).</p> <p>2. License to Seel Liquou — Council's Power Over.</p> <p>The provision of chapter 44, Acts 1899, that the council of the City of Grafton shall have exclusive power to grant liquor licenses within it, is not repugnant to section 24, Art. VIII, of the Constitution, or any other clause therein, (p. 105).</p>

<p>1. Weittbn Evidence — Oral Declarations not Received.</p> <p>If a writing is not ambiguous, it must speak for tself by its words, without aid of any oral evidence; but if it is ambiguous, oral evidence is admissible to show the occasion of the contract, the situation of the parties, the circumstances surrounding them, their subsequent acts in executing the contract, in order to show their intention in making it; but evidence cannot be received to show their declarations, conversations or in-terlocutions before or at the execution of the contract, (pp. 109, 110).</p> <p>2. Right of Way — Passes Easement Only.</p> <p>The words “right of way” in a grant to a railroad company, taken alone,, mean an easement only, and do not pass the very land itself, (p. 112).</p> <p>3. Raileoad Risht of Way — Buildings—Easement.</p> <p>An agreement grants to a railroad company “thé full and free right of way of the width of 50 feet * * * in, upon and through the lands of the said Uhl * * * . which right of way is hereby granted and conveyed, for the construction, building and use of the road of said company.” It also says, “And the said Uhl also hereby covenants and agrees to execute and acknowledge in due form of law, when required by said company, a deed conveying to said company in fee simple the land here-inbefore described.” Such agreement conveys only a right of way, an easement in fee simple, not the land itself and the oil in it. (p. 113).</p> <p>4. Easement — Conveyance—Covenant—Estate.</p> <p>The covenant in this agreement to execute a deed conveying the land in fee simple is a dependent covenant, and the estate or interest conveyed by the agreement being limited to the right of way, which is an incorporeal hereditament, the operation of said covenant is necessarily restricted and limited by the granting clause, and does not require the conveyance of a greater estate, (p. 114).</p> <p>5. Conveyance — Covenant—Deed.</p> <p>The covenant in a deed for further assurance means a covenant to execute a deed for further and better assurance of the estate passed in the granting clause, and does not enlarge that estate, (p. 115).</p> <p>6. Deeds — Construction—Intention.</p> <p>. In the construction of deeds, as well as wills, the rule nowadays is that the intention of the grantor controls, and technical words of legal import must yield to plain intent, and the whole instrument, not merely and separately disjointed parts, is to be considered, (p. 116).</p>

<p>1. Public Streets — Telephone Poles — Counsel’s Consent.</p> <p>The erection of telephone poles along the streets of an incorporated city, to.wn or village with the consent of the council thereof is not such taking of private property for public use as will authorize the abutting lot owner to enjoin the prosecution of such work until his damages occasioned thereby are paid or secured to he paid. (p. 125).</p> <p>2. Public Easement — Privilege Merely.</p> <p>Such a privilege is a mere easement carved out of, subservient and appurtenant to, the public easement in such' street, (p. 125).</p> <p>3. Public Improvement — Destruction of.</p> <p>Before an individual or company may invade and destroy in whole or part for other public purposes a public improvement placed on the street by an abutting lot owner in front of his property under agreement with the council of the city, town or village, specific authority for so doing must first he obtained from such council, (p. 126).</p>

<p>1. Bill of Review — Evidence to Support.</p> <p>It is not error for the circuit court to reject a hill of review founded on after discovered evidence wholly insufficient to reverse the 'decree sought to he i’eviewed. Wellierd, v. Elliott, 45 W. Ya. 436 (32 S. E. 209). (p. 127).</p> <p>2. Circuit Court’s Action May be Reviewed.</p> <p>Although the conclusion reached hy the circuit court may he subject to grave doubts this Court will not reverse it's action unless plainly erroneous. Naughlon v. Taylor, 50 W. Va., 233, (40 S. E. 353). (p. 128).</p>

<p>1. Gas Company — Explosion—Inability.</p> <p>If a tenant open a service pipe and knowingly permit the same to remain open and the gas to escape therefrom into or under the property occupied by him and then carelessly ignites the same, his landlord cannot recover from the gas company the 'damages occasioned by the resulting explosion, although such gas company was guilty of negligence in not having cut the gas off from such service pipe.</p>

<p>A Cities — Defective Highways.</p> <p>It is the positive duty of a municipality to keep its highways free from obstructions and defects, dangerous to travel thereon in the ordinary modes, to those using reasonable care and prudence, and it is not necessary to allege or prove that the city had notice of such obstructions or defects, (p. 134).</p> <p>2. Obstructions — 'Warning to Public.</p> <p>In cases of temporary necessity a municipality may allow obstructions on the public sidewalks or streets, hut the traveling public should he warned of and protected against the same io! some proper manner, (p. 135).</p> <p>3. Intoxicated Traveller — Question of Fact.</p> <p>Whether a person is so intoxicated as to be unable to exercise ordinary care or prudence is a question of fact for the jury and unless plainly against the preponderance of the evidence its finding will not be disturbed, (p. 135).</p> <p>4. Instructions — Effect of.</p> <p>Though proper instructions may be refused, yet if other instructions are given covering the same questions and to the same effect such refusal is. not reversible error, (p. 136).</p>

<p>1. Fellow Servants.</p> <p>The law of fellow'servants, as enunciated in Jaelcson v. Railway Company, 43 W. Ya. 380, approved and applied.- (p. 139).</p> <p>2. Negligence oe Fellow Servants — Evidence.</p> <p>An employe of a firm, engaged in the opening of a tunnel for a railroad, was directed hy the foremen of the employers to swab out drill holes with a wooden stick. After swabbing out fifty or more holes and finding one which was obstructed, he was required hy the foreman to take a steel drill and open the obstructed holes. "While doing so, under the direction of one of the foremen who stood by and gave instructions, an explosion occurred in the hole which wholly destroyed one of the employe’s eye's and seriously impaired the other. There was no evidence that the firm had failed to perform any of the duties imposed by law upon masters for the protection of their servants, such as providing a safe place to work, suitable tools, machinery and appliances to work with, competent servants and proper rules for conducting the business, nor was the cause of the explosion shown. The court sustained the motion to exclude the -evidence after giving the plaintiff an opportunity to take a non-suit. Held: That the evidence was insufficient to sustain a verdict and was properly excluded hy the court, (p. 140).</p>

<p>1. Creditor's Bill — Equitable Lien — Conveyance.</p> <p>Two sisters, being tbe joint owners of a tract of two hundred acres of land, married and afterwards partitioned tbe land by mutual conveyances, their husbands joining in the deeds, but, by inadvertance, the conveyance of the share of one of the sisters was made to her and her husband.- The husband having died, his judgment creditors, claiming that he was the owner of an undivided half of the one hundred acres of the land so conveyed, sought to enforce the alleged liens of their judgments thereon and to subject the one half of said-land to the satisfaction thereof. Held'. That the equitable title to the whole of said one hundred acres is owned by the widow of said decedent and that the creditors have no liens upon any part of the same. (p. 145).</p> <p>2. Judgment Creditor- — Lien—Subject to Liability.</p> <p>In the absence of statutory enactments establishing a different rule, a judgment creditor acquires no better right to the estate of the debtor that the debtor himseíf has when the judgment is recovered. He takes it subject to every liability under which the debtor held it and subject to all the equities which exist in favor of third parties; an- the lien of his judgment is limited, to the actual interest of the debtor in the land, (p. 145). ‘</p> <p>3. Equitable Owner — Estopple—Creditor's Title.</p> <p>When a wife is the equitable owner of real estate, the legal title to which stands in her husband's name, she is not estopped from setting up her equitable title against creditors of the husband, unless it appear that with her knowledge credit was extended to the husband on the faith of his apparent ownership of the land. (p. 146).</p>

<p>1. Justice — Complaint—Account—Items.</p> <p>In an action for the recovery of money due on contract fore a justice, a complaint in writing in the nature of a dec ation in assumpsit with the common counts, the last count “also in the sum of two hundred and fifty-six dollars and thirty-six cents as stated in the account of the plaintiff against the defendant, attached to and made part of this complaint,” and averring promise and failure to pay, and which account attached is a complete hill of particulars of the items with date and amount of each and showing what the charge was for; with notice that it will be relied upon at the trial; is held sufficient under the statute, (p. 149). r-</p> <p>2. JustioU — New Trial — Discretion.</p> <p>' Under section 5, chapter 138, a trial court has large discretion in granting new trials conditioned on payment of costs by the moving party and the appellate court will not interfere unless it clearly appears that such discretion has been abused, (p. 149).</p> <p>3. New Trial — Payment of Costs.</p> <p>Where a new trial has been granted conditioned on payment of costs, the appellate court will not entertain an assignment of error on that ground, unless an exception was taken to the ruling of the court so granting it. (p. 150).</p> <p>4. Judgment — Pendente Lite Purchaser.</p> <p>The pendente lite .purchaser of a judgment rendered by a justice may continue to prosecute the claim in the circuit court in the name of his-assignor, the plaintiff, when appealed to that court by the defendant, (p. 154).</p> <p>5. Authorities — Cited and Approved.</p> <p>Syl. 8, Hefflehower v. Detriclc, 27 W. Va. 16, Syl. pt. 3; Trust Co. v. McClellan, 40 W. Va. 405 and Syl. 3, Dewing v. Hutton, 37 S. E. 670 approved, (p. 155).</p> <p>6. Agent — Declarations—Acts—Evidence.</p> <p>Neither the declarations nor the acts of a man can he given in evidence to prove that he is the agent of another, yet he is competent as a witness on the question of his agency, (p. 156).</p>

<p>1. Forthcoming Bond' — Judgment—Amount.</p> <p>In proceeding for judgment and award of execution on a forfeited forthcoming bond, the judgment should be for the true value of the property for the non-delivery of which the bond was forfeited, with interest on such value from the date of the bond and costs incurred in the proceeding; or for so much thereof as may be necessary to satisfy the demand against the defendant in the execution or warrant, with costs, by action or motion against the persons signing said bond. (p. 160).</p> <p>2. Pkopekty — Levy—Liability—Lstopple.</p> <p>. Where property of the execution defendant has been levied upon at the instance of the defendant by the officer having the execution, and a bond given for the forthcoming and delivery of said property on day of sale and such bond is forfeited, such defendant will be estopped from the defense that such property was not subject to levy. (p. 161).</p>

<p>1. Non-Resident — Vemtér—.Ai Law and Equity.</p> <p>Under section 1, chapter 123, Code, an action at law or suit in equity may he brought against a non-resident of the state in any county of this state wherein he may be found or may haye estate or debts due him, without regard to where the cause of action arose, (p. 164).</p> <p>2. Pbinoipal and Agent — Parol Contract.</p> <p>Where a parol contract is made by an agent in his own name for an undisclosed principal, either the agent or ,the principal may sue upon it, and parol evidence is admissible to enable the principal to show that he is the real contracting party, (p. 169).</p> <p>3. Motion to Strike Out — Evidence—Jury.</p> <p>Where in a trial before a jury there is any evidence tending to sustain the plaintiff’s demand, the court should not strike out the evidence, (p. 170).</p>

<p>1. Judsment op a Justice — Appeal—Certiorari.</p> <p>The writ of certiorari properly so considered does not lie from the judgment of a justice upon the verdict of a jury, but an appeal was always the proper remedy. However, such writ of certiorari, by liberality in mere matter of procedure may be treated as an appeal, (p. 173).</p> <p>2. Contract — Former Decisions Overruled.</p> <p>An overruled decision is regarded not law, as never having been the law, but the law as given in the later case is regarded as having been the law, even at the date of the erroneous decision. To this rule there is one exception, that where there is a statute, and a decision giving it a certain construction, and there is a contract valid under such construction, the later decision does not retroact so as to invalidate such contract, (p. 178).</p>

<p>1. Affidavit — Account—Non-Resident Plea.</p> <p>An affidavit of the amount duo the plaintiff fifed with the declaration under section 46, chapter 125, Code, made in another State which wants the certificate of a clerk or other officer of the court of that state verifying the genuineness of the officer’s signature and his authority to administer oaths is not good so as to prevent a plea, though that plea is not accompanied hy affidavit of the defendant as required by said section. (p. 181).</p> <p>2. Affidavit — Motion to Quash — Appearance—Waiver.</p> <p>An overruled motion to quash an affidavit of an amount due the plaintiff filed with a declaration under section '46, chapter 125, Code, is not waived by a further appearance to the action. (p. 182).</p>

<p>1. Municipal Grant — Contract—Acceptance—Conditions.</p> <p>. When a grant by a municipality to a railroad company to construct its road upon or over a street is accepted, it constitutes a contract which cannot be arbitrarily revoked or impaired by the municipality; but such grant is subject always to conditions imposed upon it by statute or by the terms of the grant, and, moreover, is subject also to the proper exercise of police power by the municipality, (p. 186).</p> <p>2. Municipal Grant — Conditions—Railroad.</p> <p>A grant by a municipality to a railroad company to build its road upon or across a street confers no right to destroy the street, or to have exclusive use of it, but contemplates a joint use of the street by the public and the company, and tbe municipality has power to enforce a proper use of the grant, and may restrict the company to the use of only so much of the street as is absolutely necessary for its use and consistent with the public use, and may compel a change of location or tojal removal of a side track materially impairing the use of the street by rendering the part assigned for public passage too narrow, (p. 187).</p> <p>3. Right op Wav — Use—Puhlic Nuisance.</p> <p>An improper use, damaging to tbe public, by a railroad company of a grant of right of way over the streets of a town constitutes a public nuisance and is subject to indictment, (p. 188).</p> <p>4. Improper Use op Way — Mandamus.</p> <p>Mandamus lies to compel a railroad company using a street for its track to restore the street to its former condition, or such condition as will not unnecessarily impede travel, and to make and maintain continuously crossings of streets and alleys over its-road. (p. 189).</p> <p>5.- Rah&oad Company — Gars on Street.</p> <p>A railroad company cannot leave its cars standing upon a street crossing, or use such crossing as a place of ’deposit or storage for its cars, and thus obstruct public use of the crossing. It is only entitled to use the crossing for so long as is reasonably necessary to pass over the crossing with its cars, (p. 189).</p> <p>6. Mandamus Nisi — Declaration—Process.</p> <p>A mandamus nisi answers the two-fold purpose of process and declaration. It may be amended like a declaration, and if amended after service it need not be then served in its amended form. (p. 190).</p>

<p>1. ResebvatioN' — Notice—Recordation.</p> <p>Notice of the reservation of title until property paid for, under section 3, chapter 74, Code, is not required to be acknowledged as a prerequisite to recordation, (p.191).</p>

<p>1. Former Adjudication — Parties and Privies.</p> <p>Points once adjudicated "by a final decree cannot again be put in issue between tbe same parties or their privies in the same or another suit, unless it be by a direct attack on such final decree through appeal or other legal method, (p. 195).</p> <p>2. Forfeited Lands — Purchaser—Title—Decrees.</p> <p>A person who buys the title of the State to forfeited lands at a judicial sale is bound by the final decrees entered in the suit in which 'such sale is had, prior to the confirmation thereof, as though he were a party to such suit. (p. 196).</p>

<p>1. Delinquent Land — Auditor’s Certificate — Sale.</p> <p>If the auditor through mistake or otherwise certify for sale, a tract of land delinquent, for non-payment of taxes, due thereon to the sheriff of the county, in which such land is not situated, at the date of such certification, a sale thereof made hy such sheriff is illegal and void, and a deed made in pursuance thereof hy the clerk of the county court is likewise void and vests no title in the purchaser, (p. 197).</p>

<p>1. Oedee Publication — Non-Resident—Appearance.</p> <p>An unknown, party against whom an order of publication has been taken and published may appear within five years after a decree has been entered or within one year after a copy of such decree shall be served upon him, if within the five years limit, and have the same reheard on giving security for costs. (p. 200).</p>

<p>1. Office Fabming — Sheriff—Deputy—Contract.</p> <p>A contract between a sheriff and Ms deputy, providing that the deputy shall collect all the taxes, with slight exceptions, and do all the work of the sheriff’s office in one district and attend the sessions of the court during stated portions of the time each year, and is to have all the fees and commissions allowed by law upon the work done by him, and is to pay the sheriff one hundred dollars a year, the agreement violates section 5 of chapter 7 of the Code, prohibiting the sale or farming, in whole or in part, of any office under the laws of this State, (p. 203).</p> <p>2. Office Fabming — Contract—Sum to Be Paid.</p> <p>When such contract provides that the payment of the sum agreed to be paid by the deputy shall be paid out of the fees and commissions, it is not in violation of said statute, but when the contract provides for the payment of such sum without specifying that it shall be paid out of the fees and commissions, it is a contract to pay at all events and amounts in law to a purchase of the office in part and is, therefore, illegal, (p. 204).</p> <p>3. Deputy Sheriff's Bond — Rights of Sheriff.</p> <p>A bond given by a deputy, conditioned for the faithful performance of his duties as deputy sheriff, and containing in one of its clauses a reference to said contract, is void a's to the private interest of the sheriff and his deputy, so far as it may relate to them, and no recovery can be had thereon for any fees or commissions or the sum specified in ’said contract to be paid by the deputy, (p. 207).</p> <p>4. ShüRief’s Right Against Deputy — De facto Officer.</p> <p>But the sheriff may recover thereon, the taxes, fines, other public dues and money received by the deputy on executions and other process, although he may have satisfied the State, county, district and creditors as to such fund and such recovery only operates to reimburse him; for these funds came into the hands of the deputy as a de facto officer, by virtue of the law as much as by reason of the contract, and primarily belong to the public and innocent private individuals, and said statute is not allowed to so operate as to imperil the interests of the public or innocent persons, (p. 215).</p> <p>5. Public Funds — Public Policy — Illegal •Contract.</p> <p>Public policy demands protection of public funds in the hands of de facto officers as well as prohibits the sale or farming of public offices, and although ordinarily where a contract grows immediately out of, or is connected with, a contemporaneous or prior illegal contract, the., illegality of such contract enters into contemporaneous or subsequent, contract and vitiates it, from considerations of public policy, that rule is not applicable when the illegal part of the contract can be severed from the balance of it and it is necessary to do so to protect funds which, in their nature and primarily, belong to the public and persons unconnected with the illegal contract, (p. 216).</p> <p>6. Sheriff’s Suit Against Deputy — Declaration.</p> <p>A sheriff cannot maintain a bill in equity for an account against his deputy without showing, by sufficient allegatons, special circumstances entitling him to discovery as necessary to complete and adequate relief, or that the accounts are complicated and intricate, (p. 217).</p>

<p>1. Larceny — Fraud—Trie 7c — Conversion.</p> <p>Where a person, by means of some fraud or trick, procures the delivery of money or goods to him by the owner, with the intent to steal the same, it amounts to a taking of the property within the definition of larceny, unless the ’delivery of the possession is made for the purpose of passing the title to the property as well as its possession; and, if possession he acquired by such means and with such intent and the goods or money are afterwards converted by the taker to his own use, the offense is larceny. ■ (p. 221).</p> <p>2. Fax.se Pretense — Intent—Larceny.</p> <p>Where both possession and title are obtained by false pretenses with intent to defraud, the offense is obtaining money by false pretenses, in which ease the statute declares that the offender shall be deemed guilty of larceny, (p. 224).</p> <p>3. Fraudulent Tricking — Felonious Larceny.</p> <p>When possession is obtained by means of fraud, trick or device, so as to make the taking felonious, and the taker converts the property to his own use, the offense is common law larceny and a conviction may be had upon a common law indictment for larceny, (p. 225).</p> <p>4. Larceny — Indictment—Allegations.</p> <p>In such case, the indictment need not specify the means by which the larceny was effected, (p. 229).</p> <p>5. ' Larceny — Intent—Question for the Jury.</p> <p>Whether the possession was so obtained with intent to steal is a question for the jury. (p. 230).</p> <p>6. Larceny — Evidence—Search of Person.</p> <p>The instruments, devices or tokens used in the commission of a crime are competent and legitimate evidence in the trial of the accused, and the taking of them from his person by an officer who has arrested him upon a charge of his having committed the crime, is not an illegal seizure, nor is the search of his person for such instruments an unreasonable search within the meaning of the constitutional provision against unreasonable search, (p. 230).</p>

<p>Indictment — Plea in Felony Oases.</p> <p>If, in a felony case, the record show that the defendant “plead not guilty” instead of saying, “The said defendant says he is not guilty,” etc., the record is sufficient, as to the plea, to sustain a conviction. The plea operates as a legal denial of the charge laid in the indictment, going to all of its allegations, and to put the defendant upon tral, and it is sufficient if the record show that the prisoner has plead not guilty, (p. 234).</p> <p>2. Indictment — Plea—Joinder—Issue.</p> <p>The omission from the record of the similiter or joinder of issue, in such case, ’does not vitiate the judgment; for the plea of not guilty, without more, legally puts the defendant on trial hy jury, and the similiter is a mere form, although the better practice is to insert it. (p. 237).</p> <p>3. Instructions — Court’s Duty.</p> <p>The court is not hound to instruct the jury, in a murder case, that if they find the defendant guilty of first degree murder, they may recommend in the verdict that he he confined in the penitentiary, and thus avert the infliction of the death penalty, unless the prisoner requests the giving of such ■ instruction, (p. 239).</p> <p>4. Instructions — Record—Waiver.</p> <p>When, in such case, the record is silent as to the asking, . giving, or refusal of such instruction, it is conclusively presumed that, if requested by the prisoner, it was given, and if it was not requested, that he waived it. (p. 240).</p> <p>5. Criminal Trials — Record—Judgment—Reversal.</p> <p>The rule that the appellate court will not reverse the judgment of an inferior court, unless error appear upon the face of the record, and that all presumptions are in favor of the correctness of the .judgment, and that errors in the rulings of the court made during the progress of the trial, and as to other matters not vital and jurisdictional in their nature, hut such as may he waived, must he affirmatively shown hy the record, applies to procedure in criminal as well as civil cases, (p. 240).</p> <p>6. Mtjkdee — Degree Depends Upon Intent.</p> <p>Whether murder is of the first degree or second degree depends upon whether the act which produced death was accompanied hy specific intent on the part of the slayer to take life. When such intent exists, and the circumstances of the hilling are not such as to excuse or justify it, or reduce the offense to manslaughter, the homicide is murder of the first degree. Subject to the foregoing exceptions, the law is, that, when the act of the accused which results in death is accompanied by such intent, the act and intent combined include all the elements of first degree murder. In all cases of killing under circumstances which render the slayer guilty of murder, and the act which produced death was not accompanied hy 'such specific intent, the grade of the crime is murder of the second degree, (p. 243).</p> <p>7. Mtjkdee — Homicide—Manslaughter—Hot Blood.</p> <p>Where the killing, although intentional, is done in passion, in heat of blood, upon sudden provocation hy gross indignity, out of tenderness for the frailty of human nature, the law reduces the offense to manslaughter, hut, however great the provocation may have been, if there has been sufficient time for passion to subside and for reason to return, the homicide is murder, (p. 244).</p> <p>8. Muede» — Provocation■—Question for Jury.</p> <p>When time has intervened between the date of provocation and the date of the killing, the question whether the killing was done in the heat of blood is for the jury, and if they find the defendant guilty of murder in the. first degree, thereby negativing the existence of passion and heat of blood at the time of the killing, the court cannot disturb the verdict under the circumstances of this case. (p. 245).</p>

<p>1. Wirxs — Construction■—Devisee’s Title.</p> <p>• S. made his will as follows: “First, I do ordain that out of my personal property or the proceeds of the same that my debts justly due as well as my funeral expenses be paid. Second, After paying all my just debts as well as my funeral expenses, I give and bequeath to my beloved wife R. S! the farm on which I now live on in the county of Pleasants, State of West Virginia, containing seventy-one acres of land more or less, also I give to my beloved wife R. S. all of my persona] estate of every kind, moneys, notes, claims, and accounts included, that remain after paying my debts and funeral expenses to be hers during her natural lifetime and to be disposed of by her as she may deem best for her comfort in life.” Held,: R. S. took the real estate in fee simple, (p. 248).</p>

Action by Theodosia Chancey and G. H. Chancey against the county court of Roane County. Verdict for defendant was set aside, and it brings error.

<p>1. Former Decisions Affirmed.</p> <p>Syl. pts. 1, 2 and 3, Bank v. Boylen, 26 W. Va..554, re-affirmed. (P. 257),</p> <p>2. Usury — Reneioal of Notes — Application.</p> <p>Usurious interest paid a national •‘bank on renewing a series of notes cannot in an action by tlie bank on tbe last of them be applied in satisfaction of the principal of the debt. Dries-hacU v. Bank, 104 U. S. 52. (p. 257).</p> <p>3. Usury — Interest—IIoio Recovered.</p> <p>The remedy given by s. 5198 Rev. Stat. U. S. for the recovery of usurious interest paid to a national bank is exclusive. Stevens v. Bank, 111 U. S. 197. (p. 257).</p>

<p>1. CiRouit Court — Discretion—Verdicts—New Trial.</p> <p>Ttie circuit court lias a wide discretion in setting aside ver'dicts obtained in the absence of either party to the suit in the interest of a fair hearing on the merits, and such discretion will not be interfered with by this Court unless the ends of justice will be promoted thereby, (p. 262).</p> <p>2. Instructions — Evidence—Reversible Error.</p> <p>The circuit c.ourt commits no reversible error in instructing a jury to find for a party in whose favor the evidence plainly and decidedly preponderates, (p. 263).</p> <p>3. Instructions1 — Conflicting Evidence.</p> <p>If the material facts are doubtful and a verdict for either party would be sustained, the circuit court should not instruct the jury to find against such party, (p. 263).</p>

<p>1. Attachment — Non Resident■ — Abatement.</p> <p>Service of summons on a non-resident in tlie county in which, the same is issued does not abate an attachment nor furnish good grounds for a demurrer to a bill in equity, founded on tbe fact of sucb non-residence, (p. 265).</p> <p>2. Summons — Residence—-Sojourner.</p> <p>Personal service of summons does not establish residence, for sucb service may be bad on a temporary sojourner or passing traveller. (p.266).</p>

<p>1. Joestt Tenants — Survivorship—Grantor—Grantee.</p> <p>Two persons unite in a joint deed giving to a third person all their personal property “that they may have at the time of their death,” and reserving the “use and control” thereof “so long as they hoth shall live;” they thereby create a joint tenancy survivorship in such personal property, the manifest intention of which is that on the death of one, the residue vests in the survivor, and such third person is not entitled to any of their property'until the death of both the grantors! (p. 268).</p>

<p>1. Pbomisob — Consideration—Right Relinquished.</p> <p>A valuable consideration is the relinquishment by the promi-see of some right which he may lawfully exercise or enforce, or the incurring of some risk or trouble at the instance of the promisor, (pp. 274, 276).</p> <p>2. County Court — Condemnation Proceedings — Costs.</p> <p>When a county court, in prosecuting a condemnation proceeding under chapters 42 and 43 of the Code, has made costs and upon the agreement of the landowner to pay the costs, dismisses the proceeding to take the particular parcel of land described and designated in its application, the relinquishment of its right to retain the advantages gained in such proceeding and the risk of future costs and trouble it incurs by dismissing constitute a sufficient consideration for the promise to pay the costs and they may be recovered in an action of assumpsit, (p. 275).</p> <p>3. Agreement — Dismissal—Location of Road.</p> <p>By such agreement and dismissal, the court does not act in excess of its powers, nor disable itself from establishing the road upon - another location, and the contract is not illegal, (p. 277).</p>

<p>1. Courts’ Jurisdiction — To Require Bond.</p> <p>Courts oi' record have a discretionary jurisdiction, in case of conviction, for a gross common law misdemeanor, punishment for which has not been prescribed by statute, to require of the defendant sureties for good behavior. To this extent only, the principles announced in State v. Gould, 26 W. Va. 268, are overruled. (p. 280).</p> <p>2. Jurisdiction — Common Law — Statutory Misdemeanor</p> <p>Such jurisdiction does not exist when the conviction is for a statutory misdemeanor or a common law misdemeanor for which punishment is prescribed by statute, (p. 282).</p> <p>3. Selijno Liquors — Statutory Crime.</p> <p>The simple selling of intoxicating liquors is a statutory offense. (p. 279).</p>

<p>1. Criminai Law — Murcler—Evidence.</p> <p>In the trial of an indictment for murder all instruments which the evidence tends to show were used in the perpetration of the crime, may he produced for the inspection of the jury, (p. 292).</p> <p>2. Evidence — Criminal Trial — Blood Spots.</p> <p>When the evidence shows that the coat worn hy the accused, when with the deceased just before the killing, was found hidden in the prisoner’s room between the mattress and slats of his bed, and there are spots on it which might have been made by the blood of the deceased, and on other clothing of his worn at the same time similar spots are found, and the mode of the killing was such as makes it probable that the blood of the victim did spatter upon the clothing of the murderer, such clothing may be produced at the trial for the inspection of the jury, and a witness who saw the spots soon after the murder may testify that he supposed the spots were blood stains, as the statement is nothing more than his opinion, and that is all he could state with certainty, (p. 292).</p> <p>3. Murder — Evidence—Instruments Used.</p> <p>It is not error to allow the jury to inspect instruments used in the commission of the crime and the clothes of the prisoner, bearing marks which the evidence shows may be blood stains, and/to hear non-expert testimony as to the character of the marks, without it having been established by microscopic examination or otherwise that the marks are blood stains, (pp. 297, 298).</p> <p>4. Crime — Motive—Evidence-—Pay Cheeks.</p> <p>When the motive for the crime appears to have been robbery and there is evidence tending to show that the prisoner was practically without money just before the murder and had considerable money immediately afterwards, but claims that it was his own, it is proper to ask him on cross-examination if he did not, shortly before the murder, deposit for drinks at a saloon, pay-checks representing wages due him. (p. 298).</p> <p>5. Murder — Instruction as to Blood Stains.</p> <p>It is not error to refuse to instruct the jury that they are not permitted to say blood found on the clothes of the 'accused, is human blood, in the absence of the establishment of that fact by a microscopic examination, (p. 299).</p> <p>6. -CRIMINAL Trial — View of the Premises.</p> <p>When a view of the premises is taken the court is. not bound to instruct the jury that they should not consider as evidence any of the objects or locations pointed out to them upon the grounds, (p. 300).</p> <p>7. Criminal Trial — Ruling of Gourl — Exceptions.</p> <p>Errors in the rulings of the court, made during the trial, and as to other matters not vital and jurisdictional in their 'nature, but such as may be waived, must be affirmatively shown by the record, else the proceedings are conclusively presumed to be regular, (p. 300).</p> <p>8. Jury Trial — Murder Verdict.</p> <p>The following verdict is sufficient: “We, the jury, find the defendant, S. IT., guilty of murder in the first degree as charged in the within indictment.” (p. 300).</p> <p>9. Criminal Trial — Verdict—Motion to Set Aside.</p> <p>When, upon a writ of error to a judgment in a criminal case, overruling a motion to set -aside a verdict and award a new trial on the ground that the verdict is contrary to the evidence, the evidence, not the facts, is certified in the bill of exceptions, this Court will not reverse the judgment, unless, after rejecting all the conflicting oral evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the trial court still appears to be wrong, (p. 301).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by Lucy R. Cautley against Benjamin S. Morgan and others. Decree for plain till, and defendants appeal.</p>

Bill by Clarence Kahle, for himself and others, against the Long Reach Oil Company. McCutcheon and Sterner were made parties, and appeal from the judgment rendered.

<p>1. Damages — Reasonable Care — Premises—Contractor.</p> <p>To one going upon another’s premises, not as a trespasser or mere licensee, hut by invitation in legal sense, as for instance, an independent contractor going upon such premises to do a work under contract with the owner, the owner owes the duty of ordinary, reasonable care to have and keep his premises in safe condition for such person’s work, unless defects tie known to such person, (p. 321).</p> <p>2. Contkibutoby Negligiskce — Contractor—Owner.</p> <p>If a contractor goes upon premises of another to perform a contract to do work for the owner and is injured from defect in the premises known, or which by fair care ought to be known to the owner, and unknown, or which by fair care cannot be known to such contractor, the owner is liable,; but under the reverse of these circumstances, is not liable, (pp. 322, 323).</p> <p>3. Peksonal Injuby — Evidence Irrelevant.</p> <p>In an action for personal injury, evidence that the plaintiff is a married man with young children is irrelevant and incompetent and it is error to admit it. (p. 327).</p> <p>4. Juby Trials — Evidence Confined to Issue.</p> <p>Jury trials should be strictly confined to the issues made and the legitimate facts bearing on them, and the practice of dragging in extraneous matters to influence a jury cannot be too strongly condemned. Nothing outside of the legitimate facts should be introduced to affect the minds of those who are to decide the case. (p. 324).</p> <p>5. Questions Propounded — Answers—Exceptions.</p> <p>When a question is put to a witness and the court refuses to allow it to be answered, if the question does not plainly itself import that the answer will prove a fact material, it must appear by a bill of exceptions what was proposed and expected to be proven, else there is no error apparent. If a question objected to is answered, the answer must be shown, else there is no error apparent, (p. 324).</p> <p>6. Peksonal In juby — Knowledge—Owner—Promise.</p> <p>If the owner of a coal tipple promises a contractor executing a contract for masonry work in repairing the tipple, not to have carpenters throw down old timbers of the tipple from any section of the tipple while the contractor is working at the masonry at a particular section of the tipple, and the contractor goes to another section of the tipple m work connected with his contract, relying upon such promise, and being ignorant that carpenters of the owner of the tipple are still engaged in removing old timbers, and the contractor is injured by a piece of timber being thrown upon him in the work of removal by the carpenters, the owner of the tipple is liable. But in the absence of such promise, the owner would not be liable, -if the contractor knew that carpentry work was going on above such other section, though he did not know that the particular work of removing old timbers was being done, if he took no precaution to learn the character of the work being done. (pp. 327, 328).</p>

<p>Appeal from Circuit Court, Brooke County.</p> <p>Suit by George T. Guernsey and T. C. Truman against H. G. Lazear. Decree for defendant, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by the West End Real Estate Company against H. M. Nash. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Attorney’s Lien — Administration Assets.'</p> <p>II an. attorney at law by virtue of liis employment performs services for an administratrix in the prosecution of a claim due the estate, to be paid for out of the proceeds thereof, and another administrator is substituted in lieu of the first and after5 wards receives such proceeds, such attorney is entitled to payment for such services thereform unless he has been otherwise paid therefor, (p. 349).</p> <p>2. Non-Resident Administrator — General Creditor’s Right.</p> <p>A general creditor may maintain a suit in chancery against a non-resident administrator appointed in this State, who has failed to return the inventory and make settlement of his accounts as required by law, and who has squandered the estate and become insolvent and the sureties on his bond are proper parties to such suit. If in such suit the administrator confessed assets which he has converted to his own use, the plaintiff is entitled to a decree for his claim against such administrator individually and his sureties and a'reference to a commissoner is unnecessary, (p. 350).</p>

Action of ejectment by the St. Lawrence Boom and Manufacturing Company against Homer A. Ilolt and another. From a judgment in favor of plaintiff, defendants bring error.

<p>Error from Circuit Court, Raleigh County.</p> <p>Action by Eva B. Swindell against II. II. Harper. Judgment for plainti ff, and defendant brings error.</p>

<p>1. Paetneusi-iip — Individual Properly- — Title.</p> <p>In several suits consolidated certain tracts of land were attached by creditors as the individual lands of P. B., a partner of P. who was not a party to the suits, filed his petition and answer claiming these tracts were the property of P. & B.; the causes were referred to a commissioner to ascertain and report among other things what real estate said P. owned and possessed and by what title held, and also what real estate B., a former partner of P. under the name of B. & P., was interested in. The commissioner took testimony in the matter and without passing thereon referred the question to the court for decision upon the evidence certified up. The parties excepted to the report because the commissioner failed to report according to tlieir respective contentions. The court overruled the exceptions oí B. and decreed that the tracts held in the name of P. and of P. trustee were the individual property of P., purchased with his individual assets and not with the partnership funds of B. & P. for partnership purposes and there was no resulting trust in favor of the creditors of B. & P. superior to the rights of the attaching creditors in the causes acquired under their attachments but said land was first subject to the attachments; and directing the commissioner to carry out the former decree of reference accordingly. Held: The decree adjudicated the rights of B. and was appealable, (p. 392).</p> <p>2. Res Adjtjdicata — Application Of Oases.</p> <p>Syllabus pt. 6, Finley v. Finley, 42 W. Va. 372, does not apply to such matters as have been fully adjudicated by order or decree of the court leaving nothing on the particular matter to be reported by the commissioner for the information of the court, (p. 893).</p>

<p>1. Pbiísonal Injuiiy — Negligence Question for Jury.</p> <p>In an action on the case for damages for personal injuries where there is conflicting evidence as to, the facts supposed to constitute contributory negligence the question is one for the jury and their verdict should not be disturbed unless it is clearly contrary to a decided preponderance of the evidence, (p. 404).</p> <p>2. Authorities Cited and Approved.</p> <p>Point 1 Syl. Kay v. R. R. Go., 47 W. Va. 467, (35 S. E. 973) re-affirmed and approved, (p. 404).</p>

<p>1. Fbatjdtxlent Conveyance — From Husband! to Wife.</p> <p>The mere payment by a husband, though indebted, but clearly solvent, for lots intended as a permanent home, and conveyed to the wife by his vendor at his request, or payment by him for building a bouse thereon, will not alone establish actual fraudulent intent, so as to subject the lots to after made debts; but these are circumstances to be considered with others upon the question of such intent, (p. 407).</p>

<p>1. Final Degree — IAen—Sale Before Ascertainment.</p> <p>Where once a decree has been made fixing the amount of a lien decreed upon land, and its place as a lien, a partial payment does not call for an ascertainment hy the court of the balance before a sale under the decree, (p. 411).</p> <p>2. Decree op Sale — Creditor—Receiver.</p> <p>Where a decree of sale provides for payment to a creditor, allowed a debt by it of money in the hands of a receiver of another court, and provides that when paid it should operate as a partial payment, there is no error in failing to ascertain the’ amount of such money in the decree, especially where before sale the amount of said money appears in the record of the case. (p. 412).</p> <p>3. Judicial Salei — Advance Guaranteed Before Set Aside.</p> <p>A judicial sale will not he set aside for inadequacy alone, unless the inadequacy is so gross as to justify the presumption of fraud. A sale for half the estimated value is not such inadequacy. (29 W. Ya. 513). Before setting aside such sale for inadequacy there should he some guaranty of an advance on the sale. (p. 413).</p> <p>4. Attorney’s Lien — Fund to be Followed.</p> <p>An attorney has no lien upon a fund which he is not instrumental in creating, and which never came to his hands, (p. 414).</p> <p>5. Attorney’s Lten — Limited to Special Fund.</p> <p>An attorney’s special lien for pay for his services out of a fund in court exists only where his client is entitled to participate in that fund. ' He cannot claim it out of a fund decreed to go to a party under a right adverse to that of the party represented by the attorney. Such party cannot he compelled to pay for the services of an attorney rendered against him. (p. 415).</p> <p>6. Attorney’s Lien — Fund Consumed by Prior Liens.</p> <p>Where a fund in court arising from a sale of property is consumed by a prior lien, the attorney representing a junior demand has no lien upon that fund for his services, (p. 415).</p>

<p>1. CoktRaox — Bride—Superintendent Inspector.</p> <p>Where by a contract brick are to be made of certain kind and character “to the satisfaction of the general superintendant of said company or his authorized representative,” the right of rejection by the superintendent is absolute, and his reasons cannot be investigated, if in good faith, that is not fraudulent, (pp. 417, 419).</p> <p>2. Contract — Quantum Meruit — Recover}/.</p> <p>Where there is d contract for work, and it Is only partially executed, and so no recovery can be had on a special count based on the contract, yet there may be recovery for the actual worth to the party of the work done upon a quantum meruit under the common count, if the failure to complete the work is without the fault of the plaintiff, (pp. 419, 420).</p>

<p>1. Appeal — Jurisdiction—Amount in Controversy.</p> <p>Where a pecuniary demand in a suit in a circuit court is ninety-five dollars and the answer of the defendant admits as due and offers to pay sixty-one dollars and ninety-five cents, and the decree is against the defendant for one hundred and four dollars and eighty-three cents, leaving the amount actually in controversy forty-two dollars and eighty-eight cents, there is no jurisdiction for appeal by the defendant, (pp. 422, 423).</p>

<p>1. Depots — Railroad’s Duty.</p> <p>It is the duty of a railroad company to keep its depots and platforms in safe condition and free from dangerous defects for the safety of its passengers, (p. 428).</p> <p>2. Presumption oe Passenger — Negligence.</p> <p>A person going to a depot to become a passenger has the right to presume that the company has discharged such 'duty, and is not hound to keep a lookout for defects occasioned hy the company’s negligence, other than such as ordinary prudence might require for self-protection, (p. 425).</p> <p>3. Passenger— Contributory Negligence of Company.</p> <p>If a passenger while trying to get her children onto the platform of a railroad station, unconsciously steps hack into a hole in the platform of which she had no previous knowledge, she is not guilty oí contributory negligence, although, if she had been walking face forwards, in the direction of such hole, she could have, easily, seen the same. Her walking backwards or failure to look backwards is not negligence when there is nothing to warn her of the company’s negligence, and it is not her duty to presume it or look for it. (p. 427).</p> <p>4. Railroad — Gross Negligence — Personal Injury.</p> <p>A railroad company cannot be excused from gross negligence on its part, although the act of the injured person contributed thereto, unless it be shown in evidence that such person was guilty of legal negligence, that is, some act of negligence that an ordinarily prudent person would not have been guilty of under the-same circumstances, (p. 428).</p> <p>5. Evidence — Reversible Error. '</p> <p>It is not reversible error to admit in evidence the fact that the plaintiff’s two children who were with her at the time of her injury were still living, (p. 432).</p> <p>5. Expert Evidence — Opinion of Witness.</p> <p>It is not reversible error to permit a physician to give his opinion as to the cause of a diseased condition of the human body. (p. 432).</p>

<p>1. Peojiibition — When and to Whom Presented.</p> <p>As an ordinary rule- of practice, subject to all just exception, this Court will not award a writ of prohibition to a preliminary rule or injunction issued by the circuit court or Judge thereof, until an application ha's first been made to such judge or court to discharge or to dissolve the same and such judge or court overrules or refuses to entertain such application. Such application may be made and acted on during the pendency of a rule in prohibition in this Court without being in violation thereof, (p. 437).</p> <p>2. Injunction — Board of Education.</p> <p>An injunction does not lie to control the action of a board of education as to matters within its jurisdiction, (p. 438).</p> <p>3. Boaed op Education — Its Power — Prohibition.</p> <p>A prohibition does not lie to control the action of a board of education unless it is usurping judicial powers not conferred upon it by law or exercising such powers in a manner contrary to law. (p. 438).</p>

<p>[Syllabus by two Judges, Dent and McWhorter.]</p> <p>1. Deed oe Trust — Sale—Growing Crop Excepted.</p> <p>If a salo of land is made under a deed of trust and at tbe time thereof there is an understanding had, concurred in by-the purchaser, that a portion of the crop growing on such land is not included in such sale, such purchaser cannot afterwards set up a valid claim to such excluded portion of such crop under such sale. (p. 441).</p> <p>2. PURCHASER at Trust Sale — Property Bought.</p> <p>A purcliaser at a trustee’s sale who gets the whole amount of property that he understood he was bidding for, cannot sustain a valid legal claim to a portion of the property covered by the trust deed, which he understood at the time of the sale, was .excluded therefrom, (p.- 442).</p> <p>3. Trust Sale' — Purchaser—Property Bought.</p> <p>If a purchaser admits an understanding had at the time of his purchase growing out of a mutual misunderstanding of law or fact and according to which he made his purchase and secured the land sold, he is estopped thereafter from setting up a claim adverse to such understanding, (p. 442).</p>

Action for damages from tbe maintenance of a boom by Roman Pickens against the Coal River Boom & Timber Company. From a judgment for plaintiff, defendant brings error.

<p>1. Dwelling House — Trespass—Use of Deadly Weapon.</p> <p>A bare trespass against the property of another, not his dwelling-house, is not sufficient provocation to warrant the owner in using a deadly weapon in its defense. Under certain circumstances trespass against the dwelling-house will justify it. (p. 461).</p> <p>2. Assault — Murderous Intent — Deadiy Weapon.</p> <p>Where an attack is made with murderous intent and with a deadly weapon, there being a sufficient overt act, the person attacked, being bimself without fault, is under no 'duty to fly or retreat; he may stand his ground and if need be kill his adversary. (p. 463).</p> <p>3. Deadly Weapon — Threat—Preparation.</p> <p>One who has been threatened with such an attack and has reasonable ground to believe it will be made, may arm himself for defense, and in such case no inference of malice can be drawn from the fact of preparation. But it is for the jury to determine, from all the evidence in the case, whether there was reasonable ground-for such belief, and the purpose for which the deadly weapon was procured, (p. 463).</p> <p>4. Assault Justifiable — Must Retreat.</p> <p>In cases of assault, not made with the intent to kill or do great bodily harm, or when the person assaulted is not in his dwelling-house, he cannot justifiably kill his assailant without first having retreated “to the wall.” (p. 464).</p> <p>6. Instructions — Duty of Court.</p> <p>The court is not bound to give two or more instructions on the same subject, or phase of the case and substantially alike, (p. 469).</p> <p>6. Instructions — Immaterial Issues.</p> <p>It is not error to refuse instructions the giving of which would raise immaterial and irrelevant issues and thereby tend to mislead and confuse the jury. (p. 465).</p> <p>7. Venire Facias — Statute’s Directory.</p> <p>The statutory requirements respecting the time of issuing writs of venire facias for petit juries and summonses to jury commissioners to draw the jurors are directory, and substantial compliance therewith is sufficient, (p. 471).</p> <p>8. Separation of Jury — Presumption—Prejudice.</p> <p>Separation or misconduct of the jury in a criminal case only raises a presumption of impurity in the verdict, and if that presumption be fully overcome and it be shown beyond reasonable doubt that the prisoner has not been prejudiced thereby, such separation or misconduct does not vitiate the verdict, (p. 472).</p>

<p>1. Court's Jurisdiction — Presumption—Plea.</p> <p>It is not necessary to give jurisdiction, that the declaration contains an averment of the facts authorizing the plaintiff to sue in the county where the action may be brought; jurisdiction .will be presumed unless questioned by plea in abatement interposed in proper time. (p. 477).</p> <p>2. Circuit Courts — General Jurisdiction.</p> <p>Where circuit courts, being courts of general jurisdiction, take cognizance of causes, every intendment is in favor of their jurisdiction, and rightfully to exercise it. (p. 477).</p> <p>3. Decisions Approved.</p> <p>Point 2, Syl. I-Iinton v. Ballard, 3 W. Va. 582, and point 1, Syl. Humphreys v. Railroad Go., 33 W. Va. 135, reaffirmed. (p. 478).</p> <p>4. Appellate- Court — Action Inferior Court Reviewed.</p> <p>Although the Appellate Court of this State will supervise the action of an inferior court on a motion for a continuance, it will not reverse a judgment or decree on that ground unless such action was plainly erroneous, (p. 479).</p> <p>5. Decision Approved.</p> <p>Point 1, Syl., Railroad Go. v. Lafferty, 2 W. Va. 104, approved, (p. 482).</p>

<p>Appeal from Circuit Court, Randolph County.'</p> <p>Suit by Minter J. Jackson against the Welsh Land Association. Decree for plaintiff, and defendant appeals.</p>

<p>1. Judgment or Decree — Conclusive—How Impeached.</p> <p>A judgment or decree for a debt in favor of A against B is j— conclusive, both, between tbe parties and as to strangers, of E the existence, justness and amount of the debt, and can be impeached by a party or a stranger only for fraud or collusion. It can be impeached therefor, not collaterally, but only by a direct proceeding to set it aside by original bill or cross bill or answer, (p. 497). [~51 p6</p> <p>2. Surety’s Right to Release — Personal. ■</p> <p>The right of a surety to be discharged in equity by extension of time given by the creditor is personal to the surety, and cannot be used by another creditor of such debtor, (p. 499).</p> <p>3. Arbitration — Award—Revocable Only by Court.</p> <p>A submission to arbitration of an existing controversy entered in court, or by agreement out of court providing that the award shall be entered as the judgment or 'decree of the court, is not revocable, except by the court, and will bar a suit upon the demand submitted. But a provision in a contract that jany future controversy under it shall be arbitrated will not prevent an action, (p. 499).</p> <p>4. Bill — GewSral Demurrer — Reversible Error.</p> <p>Where a bill in equity contains some matter proper for relief, and some matter not calling for relief, a general demurrer is not proper, and there is no error in overruling it. -The demurrer should be aimed specially at the improper matter. ■Where, however, alter overruling such general demurrer, the court gives relief only justifiable upon such improper matter, it is reversible error, (p. 499).</p> <p>5. Sueety — Not Released — When Funds in His Hands.</p> <p>A surety having in his hands a fund which he may apply to pay the debt is not released by -indulgence extended the principal debtor by the creditor, (p. 501).</p> <p>6. Surety — Not Released Unless Really Injured.</p> <p>A surety will not be released by indulgence to the principal by the ‘creditor in any case where it clearly appears that the act of the creditor has worked no real injury to the surety, as where the principal is notoriously insolvent at the time. (p. 501).</p> <p>7. Arbitbatioií — Yoid Unless all Parties Interested Join.</p> <p>A submission to arbitration of a controversy, pending in a suit not joined in by all interested in that controversy is void as to those not joined in the submission, (pp. 502, 503).</p> <p>8. Award — Mutuality Must Exist.</p> <p>An award must have mutuality in its effect. If it will not avail one party to his benefit, it will not bind him to his prejudice in favor of another. An award does not* avail or bind a stranger, (p. 503).</p> <p>9. An Award — Yoid—Concludes Nothing.</p> <p>An award which is for any reason void does not merge or conclude á matter.to-which it relates, (pp. 504, 505).</p> <p>10. Surety — Claiming Release Must Show Suretyship.</p> <p>A surety claiming release by indulgence to the principal debtor must prove that he is a surety. 'That burden' rests on him. (p. 498).</p> <p>11. Arbitration — Hoes not Release Surety.</p> <p>An agreement by a creditor to submit his claim to arbitration, the award to be returned to court for judgment upon it, does not thereby release the surety who does not unite in the award, (p. 499).</p> <p>12. An Award' — Not a Lien.</p> <p>An award is not of itself a lien on land. To make it a lien, or to give execution, it must be made the judgment or a decree of a court, (p. 505).</p> <p>13. An Award — Musi Be- Entered as a Judgment.</p> <p>An award returned to court must be entered' up as the judgment of the court, after rule or notice to the parties to show cause why it should not be entered as the judgment of the court, in order to constitute a lien, or have writ of execution, (p. 505).</p> <p>14. Objection to Surety’s Release — Musi be by Answer.</p> <p>The objection that a surety is released from a debt by reason of indulgence granted to the principal debtor cannot be made by mere exception to the report of a commissioner. The objection by a defendant must be made by answer or other proper pleading, (p. 497).</p> <p>15. Answer — Affirmative Belief — Parties.</p> <p>An answer not intended as a mere defense to the bill, but to affect the rights of a co-defendant, must make him a party, and call for relief against him upon its facts, as in case of a cross bill, and process to answer it must be served upon that defendant. (pp. 497, 498).</p> <p>16. Proper Pleading — Adequate Facts.</p> <p>A decree must have for its basis a proper pleading giving adequate facts to support it. (p. 498).</p> <p>17. Equity- — Doctrine of Merger — Lien.</p> <p>The doctrine of merger is not inflexibly applied in courts of equity. It will not be there applied to destroy the security of a decree as a lien to the defeat of justice, (p. 504).</p> <p>18. Judgment — Merger Not By Atoará.</p> <p>A judgment or decree will not be merged by an award upon the same original cause of action not made the judgment or decree of a court; but where the first judgment is the very subject of the arbitrament, it is merged and ended by an award whether carried into judgment or not. (p. 505).</p> <p>19. Award — Judgment Only Cumulative.</p> <p>Chapter 108 of the Code allowing an award to be entered as the judgment of a court is only a cumulative remedy, and does not take from it its common law force, though not entered as such judgment, (p. 505).</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Bill by S. W. N. Feamster against Joseph A. Feamster and others. Decree for plaintiff, and defendants appeal.</p>

<p>1. Purchaser's Liability foe Goods — Acts of Ownership.</p> <p>A purchaser of goods cannot defeat payment for them on the ground either that he countermanded the order for them, or that the delivery is after the stipulated date, if he takes the goods from the railroad depot to his store, opens the boxes containing them and examines them, or does any act which only an answer can do. (pp. 512,, 513).</p> <p>2. Sale of Goods — Rescission of Contract in Tolo.</p> <p>A purchaser of goods who has right to rescind the sale contract, must rescind in loto, not in part. He cannot keep part of the goods, and return the remainder without becoming liable for the whole. (pp. 513, 514).</p> <p>3. Purchaser — Must Pay if He Keeps Part of Q-oocls.</p> <p>A purchaser of goods cannot keep part of them, and return the remainder, and defeat payment for them according to the contract on the ground that the part returned were not of the agreed quality or make. (p. 514).</p> <p>4. Verdict Contrary to Law — Musi he set Aside.</p> <p>A verdict which, on the fixed facts of the case, is contrary to law, must be set aside, (p. 515).</p>

<p>1. Bill of Exceptions — How Identified.</p> <p>When a paper which is to constitute a part of a hill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions, otherwise it will be disregarded. (4 Wallace 187). (p. 517).</p> <p>2. Bill of Exceptions — How Identified — Presumption.</p> <p>That a copy of a paper is attached to a pleading in the case which purports to bo the same as the paper mentioned in the bill of exceptions, does not make it a part of that bill, nor can this Court presume that it is the same paper read in evidence , and excepted to. (4 Wallace 187). (p. 517).</p>

<p>1. Obai. Contract — Enforcement—Evidence.</p> <p>To enforce an oral contract for tlae sale of land the evidence of the contract and its terms must not be doubtful, but full, clear and convincing, (p. 521).</p>

<p>1. Damaobs — Compensatory—.Fencing R. R. Right of Way.</p> <p>Compensatory 'damages cannot be recovered of a railroad company for breach of covenant to construct and maintain necessary cattle guards where the land owner fences off his remaining land, on both sides of the railroad right of way, and the land between such fences occupied by the right of way is not used for stock, and the division line between the land of the grantor and an adjoining owner is partly unfenced, so as to allow cattle to pass from the adjoining owner to the land occupied by the railroad, and it is not shown that cattle have passed along the railroad either way through the division line, and no damages shown unless it be possibly extra labor to attend cattle passing over a private crossing at the division line, no outlay being shown, (p.528).</p> <p>2. COMPENSATORY Damages — Breach of Covenant — Railroad Co.</p> <p>Compensatory damages can not be recovered of a railroad company for breach of a covenant to fence its track, when the land through which the railroad passes is used, not for stock, but only for cropping, and no damages shown otherwise than omission by the owner to graze stock on the land because of his fear of possible injury to it from trains, or loss of estimated profits by grazing over those from agriculture, which might have been realized, if fences had been made. (p. 532).</p> <p>3. Action' — Covenant—Railroad Company — Limitation.</p> <p>The statute of limitations will not bar action against a railroad company upon a covenant in a right of way grant to build and maintain a crossing or fence, the action being merely for such failure; hut if actual damage result from such failure, then the statute will begin to run from the date of such damage in an action for compensatory damages, (p. 531).</p> <p>4. Action Aoainst R. R. Co. — Covenant—Damages.</p> <p>An action for compensatory damages can not he sustained against a railroad company for failure to build fences or cattle guards under an agreement-to do so merely for such failure; there must be actual loss from such failure as its proximate cause, (p. 532)..</p> <p>5. Damages — Not Based on Speculative Profits.</p> <p>Mere speculative and conjectural estimates of profits which might have been made, or of the loss of gains and profits which might have been made, are not a legitimate basis upon which to fix damages. (8 W. Ya. 569). (p. 533).</p> <p>6. Breach of Contract — Damages Nominal.</p> <p>Where a mere breach of contract is shown, without actual damage calling for compensation, nominal damages may he recovered from the mere fact of such breach of contract; but if compensatory damages are demanded for actual damage, the plaintiff must in some way show, by evidence, facts and data affording means by which a jury can safely ascertain and fix the amount of damages. A jury can not go by mere arbitrary conjecture or estimate. (39 W. Ya. 196; 40 Id. 583). (p. 533).</p>

<p>1. Sail After Conviction.</p> <p>■ After conviction of felony there:can be no allowance of bail by this Court or a circuit, court, .except that for some cause extraordinary, not growing out of, but independent of, tbe criminal act, as for sickness, bail may be granted before conviction, or after it, pending a writ of error and before actual commitment 'to tbe penitentiary. The party must be laboring under a present painful, severe and dangerous 'disease either caused or aggravated by his imprisonment, and there must be strong probable reason, not mere fear, but based on facts, to apprehend that continued imprisonment will be fatal, or at least cause permanent grave injury to health, (p. 538) .</p> <p>2. Bail by Supreme Court.</p> <p>The Supreme Court of Appeals has jurisdiction to award a writ of habeas corpus having' for its sole purpose the obtaining of bail' in a felony case, and to grant bail upon it.' 'Bail- may be granted on mere motion in the ■ circuit court under the statute, (p. 539).</p>

<p>1. Demüreeb to Evidence — Demurree’s Evidence.</p> <p>Upon a demurrer to evidence, in applying the rule laid down by this Court in Heard v. By. Co., 26 W. Va'. 455, (Syl: pt.'l), th’e' demurree is not entitled to the benefit of evidence offered in the case by him, nor to any inferences to be drawn therefrom, which evidence is incompetent and .inadmissible but which has been improperly admitted over the objection of de-murrant. (p. 545).</p>

<p>1. Title to.Chattles — Record of Reservation — Possession Necessary.</p> <p>Section 3 of chapter 74 of the Code, requiring notice of a reservation of title to goods and chattels sold upon condition precedent to be recorded in the clerk’s office of the county court of the county where the property is, does not apply, unless possession of the property be delivered to the buyer, (pp. 552, 553). ’ .</p> <p>2. Possession — Structure on Real Estate.</p> <p>When the property so sold is a structure upon the real estate of the vendor, capable in its nature of being made a fixture, and it is agreed between the parties that it shall not be removed until paid for, there is no delivery of possession although the buyer, as tenant or licensee upon the land, has the use of such property, (pp. .554, 555).</p> <p>3. Saud — Possession—Equitable Relief.</p> <p>The W. Li. Company, being the owner of a tract of timbered land, contracted with the owner of a mill to saw the timber and with W. & M. to log it. By the original contract W. & M. were to construct a railroad on the lands of the company, at their own expense, for the logging of the timber, but finding themselves unable to buy the materials, the W. L. Company bought and paid for them and had them shipped to the land In its own name and laid down by W. & M. with the understanding that they were to be and remain the property of the W. L. Company until paid for by W. & M. After the road was thus completed the new contract was reduced to writing and it was therein stipulated that the W. L. Company was to hold and own all materials purchased by it in its own name until further transfer by a sufficient bill' of sale therefor. W. &, M., becoming indebted to the K. L. & M. Company, said company in an action at law attached the railroad and had it sold as the property of W. & M., at which sale it became "the purchaser, Held: That although there was a sale of the railroad materials by the W. L. Company to W. & M. there was" not a delivery of the possession thereof to the buyers, and, although no notice' of the reservation of the title was recorded, the K. L. & M. Company acquired no title to the materials by its purchase, and equity would enjoin it from removing them. (pp. 557, 558).</p>

<p>1. Judgments, . Orders and Decebes — Final—Adjourned, Term of Court.</p> <p>When a circuit court being about to end, without dispatching all its business, is adjourned, by the judge thereof, to a future day, by an order entered of record, as provided in section 4 of chapter 112 of the Code, all judgments, orders and decrees, rendered and made by such court before or during the 'day on which such court adjourns to such future day, become final on such adjournment as if the adjournment itself were final, and cannot be set aside at the adjourned term. (p. 562).</p> <p>2. Erbor — Cross Assignment.</p> <p>On an appeal or writ of error, the whole record is before the court, and it will reverse the proceedings in whole or in part, if prejudicial error thereon is perceived against the appellant or defendant in error, and such error may be cross-assigned, (p. 564).</p> <p>3. Partition — Judgment Creditors — ■Exception—Sale.</p> <p>Judgment creditors and other incumbrances are not necessary parties to a bill for partition, even where a sale of the premises is decreed, unless they be creditors of a deceased person who was a tenant in common, joint tenant, or coparcener. In other cases it is proper to sell the land subject to the liens, (p. 567).</p> <p>4. Partition Sale — Eights of Co-tenants — Reversible Error.</p> <p>It is the duty of the court, before 'decreeing a sale in a partition suit, to judicially determine the rights and interests of the co-tenants in the land, and failure to do so is ordinarily reversible error, (p. 568).</p> <p>5.Partition Sale — Confirmation Without Objection Cures Error.</p> <p>When real estate is sold, in such suit, without a judicial ascertainment Of the interests of the parties, and is purchased by a co-tenant who never appeared in the cause, nor in any way aided in bringing the property to sale, and the sale is confirmed without objection, his title is protected by section 8 of chapter 132 of the Code, notwithstanding the error in the decree of sale, and the co-tenant.parties must resort to the fund arising from the sale. (p. 568).</p>

<p>1. PURCHASE Money — Lien- Under Will — Priority.</p> <p>W. devised to H. “to him, his heirs and assigns,” a farm described “he paying to my executor twelve thousand dollars in five equal annual payments, hearing interest from the date of my death, such payments to form part of my estate in the hands of my executor and to be disposed of as hereinafter provided,” and giving H. one month from the date of the probate of the will in which to refuse in writing to take the farm, H. elected to take it. Held: That the twelve thousand dollars was purchase money and a lien upon the land and as such prior to all other liens or claims created upon the said land by Hall, as well as judgments recovered against him. (pp. 576, 577).</p> <p>2. /Trust Fund — Misappropriation—Lien Convertible.</p> <p>A legacy of three thousand- dollars by the same will was bequeathed to H. to be held by him in tru^t, the interest to be paid to B. during his life and at his death the three thousand dollars to be paid to other parties named. R., the executor of W., having collected from H. nine thousand dollars of the purchase money, instead of requiring H. to pay the residue of three thousand dollars took from H. his receipt for that amount, being the amount of the trust legacy and treated it as the residue of the purchase money as paid by H. Held: A misappropriation of the trust fund and that the money not having been paid by H., the lien for the residue of the purchase money upon the land remained valid and enured to the benefit of the beneficiaries of the trust legacy, (p. 579).</p>

<p>1. On. Leases — Abandonment-—Forfeiture..</p> <p>An agreement whereby' certain lands, in consideration of fifty dollars, are granted, demised, leased and let for the sole and only purpose of boring, mining and operating for oil and gas, and laying pipes and building tanks, stations and houses thereon to take care of the products, for the period of fifteen years, and providing that the lessee shall complete one well on the premises within one year from its date, or pay the lessor a rental of fifty cents an acre for each year the lease may remain in full force after the first year, immediately after which provision the following stipulations are written: “But it is agreed and understood that the fifty dollars paid in cash is to pay all rentals on this lease for the period of one year from the date hereof; it is further agreed that when the first well is completed on said premises, then all cash rentals shall Cease,” does not bind the lessee to do anything further after completing one well on the premises, and, upon his abandonment of further operations upon the premises for more than eighteen months, leaving the well unprotected so that it caved in and partially filled up, the lessor, after waiting a year or more, from the date of abandonment, had the right to lease the land to another, (p. 585, 586).</p> <p>2. Object of Oil Lease — -Discovery of Oil — Title—Bights and Duties of Lessee.</p> <p>The principal purpose and design of the parties to such a lease, clearly diseernable from its terms, being the production and marketing of the oil and gas in the land, for their mutual benefit, mere discovery of oil, by exploration under it, vests no title to it in the lessee, but does vest in him the right to produce and take the same in accordance with the terms and conditions of the contract. In such right the lessee will be pro« tected, but he, must proceed to exercise it with reasonable promptness and diligence, (p. 587).</p> <p>3.' Oil Lease — Construction.-</p> <p>When its terms will permit it, under the rules of law, an oil lease will be so construed as to promote development and prevent delay and unproductiveness, (p. 591, 593).</p> <p>4. ABANDONMENT — Intention—Rights of Lessor.</p> <p>The law recognizes a distinction between the abandonment of operations under an oil lease and an intention to abandon or surrender the lease itself. Unless bound by the terms of the lease so to do, it will not permit the lessee to hold the lease without operating under it, and thereby prevent the lessor from operating on the land or leasing it to others, (p. 593).</p>

<p>1. Peincipah — Agreements—Agent—Res Q-eslae.</p> <p>A principal is bound by the agreements, representations, con-cealments and mistakes of his agent made as a part of the res gestae of the transaction, (p. 599).</p> <p>2. Equity — Written Instruments — Mutual Mistake — Fraud.</p> <p>The jurisdiction of equity to reform written instruments, where there is a mutual mistake, or mistake on one side and fraud or inequitable conduct on the other, if the evidence be 'sufficiently cogent to thoroughly satisfy the mind of the court, is fully established and undoubted, (p. 600).</p>

<p>Appeal from Circuit Court, Bitchie County.</p> <p>Action, by John S. Beecber against Thomas Foster. Decree for plaintiff and defendant appeals.</p>

<p>1. Statute ojt Limitations- — In Equity — At Law.</p> <p>In matters of concurrent jurisdiction, equity, by analogy, applies to stale claims, the bar of the statute of limitations, and recognizes the same exceptions ,to its operations that are allowed in courts of law. (p. 628).</p> <p>2. Laches — Disclosures in Bitt — Avoidable by Facts.</p> <p>When a bill in equity discloses on its face laches, or the facts alleged show that the cause of action is within the statute of limitations, the bill is- for that reason demurrable, unless sufficient facts are set forth in it to avoid laches or take the case out of the statute, (p. 632).</p>