Volume 52 — West Virginia Reports

<p>1. Equity — Jurisdiction—Adverse claimants.</p> <p>A court of equity ñas no jurisdiction. to settle the title and boundary of lands between adverse claimants, when the plaintiff has no equity against the party claiming adversely to him. In so far as point one of the syllabus in Bettman v. Harness, 42 W. Va. 433, conflicts with this proposition, the same is disapproved. (P. 6).</p> <p>2. Injunction — Hostile Title.</p> <p>Where irreparable mischief is being done or threatened to real estate, going to the destruction of the substance of the estate, such as the extraction of oil and gas, and the title to the land is in dispute, the parties' claiming under hostile titles, a court of equity will enjoin the trespass and preserve the property and rights of the parties, pending the determination, in a court of law, of the question of title;, and this although no action at law has been instituted, if it appears from the bill that the complainant intends immediately to put the question1 of title into a course of judicial determination and prosecute it diligently, (p. 9).</p> <p>3. Jurisdiction — Estoppel.</p> <p>As consent cannot confer jurisdiction, a plaintiff upon whose bill there is a final decree and adjudication against him, upon matters set up in the bill, is not estopped to assert, upon appeal, that the court to which he resorted had no jurisdiction of the subject matter, -(p. 12).</p> <p>4. Reversal — Cost.</p> <p>In such case, although1 the decree will be reversed at the instance of the plaintiff, the costs in the appellate court will be awarded against him. (p. 16).</p>

<p>1. Conditional Sale — Tensor’s Lien.</p> <p>G. purchased fro-m H., trading as C. H. F. Co., certain articles of merchandise under a contract in substance as follows: “For the sum of two hundred and twenty-one dollars and seventy-five cents to he paid by me, the undersigned Chicago House Furnishing Company have this day soldi and delivered to me the following chattels: (here epnumerating the articles and giving prices). I have paid on account of said purchase price the sum of twenty-five dollars cash and I am to pay the balance as follows: Ten dollars each and every month until the full amount is paid. To secure such deferred payments, I have relinquished unto the said Chicago House Furnishing Company all my right, title and ownership in and to said chattels, to have and to hold the same until said indebtedness is paid; and in consideration that I will meet said payments promptly and will safely keep said chattels and use the same with care at Bluefield, West Virginia, and that- I will not remove the same therefrom without their knowledge and consent first obtained; the said Chicago House Furnishing Company hereby permit me to hold said chattels for them and enjoy the use of the same while in my possession on the following conditions:” that in case G. should fail to pay promptly any of said deferred payments or misuse, or remove or attempt to remove said chattels or any of them from their location, or in case of seizure thereof by process of law or in case the vendor should in his opinion have good reason to fear for the safety of his interests therein, he had the right under said contract to enter the premises of G. and take into his possession, without legal process said chattels and sell the same at private sale or otherwise in regular course of business, paying to G. or his assigns the, proceeds of such sale after deducting therefrom all suma due from G. on deferred payments; which contract dated March 24, 1899, was signed by both parties. Held to be a conditional sale of the chattels with title reserved in vendor until purchase money was all paid. (p. 23).</p> <p>2. Ruara — Restraint for Rent.</p> <p>Said contract was recorded in the office of the clerk of the county court of the proper county April 8, 1899, and the goods so.purchased by G. were by him placed' on premises leased by him on the 16th day of March, for a stipulated rent to begin to run on the first day of April, 1899. Held:. That the goods so purchased and placed on the leased premises prior to April 8th, the date of the recordation of the contract, were liable to dis-traint for the rent. (p. 27). ■</p>

<p>1. Will.</p> <p>I. G. G. died intestate leaving surviving him a widow, Ms mother, a brother and two sisters. L. G. F. one of the sisters died leaving a will with a codicil, which codicil contained this provision: “I bequeath the interest in my brother I. G. G.’s estate to my mother if she does not get enough from said estate to make her comfortable in every way. I leave all in her hands as long as she lives, to use whatever amount she wants to add to her comfort in every way. If there is anything left and my husband is not in a prosperous condition, financially, I want him to have it to add to his comfort.” The said provision of the codicil in so far as it provided for the mother of the testator being conditional on the needs of the mother who died before using or needing any of the estate under the codicil;. Held: The contingency mentioned never having arisen, the said provision in the codicil, so far as it concerned-the mother, never went into effect, (p. 32).</p>

<p>1. RECEIVER — Conflicting Titles</p> <p>A receiver will not be appointed to take possession from a defendant of land, and drill wells for oil, in a suit involving two conflicting titles merely because that defendant is drilling the same land for oil, or doing other injury, though irreparable, unless special circumstances additional are shown, such as insolvency or other circumstances, (p. 36).</p> <p>2. Hostile Titles — Receiver.</p> <p>In a suit involving two hostile titles to land a receiver will not be appointed to take charge of it, merely because of the pendency of such suits. It will be -done only with great caution and upon special circumstances calling for it to preserve the property from loss. (p. 36).</p> <p>3. INJUNCTION — Hostile Titles — Receiver.</p> <p>It does not follow that because injunction lies in a suit between hostile titles to land to restrain irreparable damage, a receiver for the land will be appointed, (p. 3Y).</p>

<p>1. Life Tenancy' — Revivor.</p> <p>On the death of the life tenant of real estate which is let to another for a fixed annual rental, by virtue of section 1, chapter 94, Code, the tenancy is continued until the end of the current year, when it finally ceases to exist, unless it is revived hy the attornment of the tenant and the affirmation of the owner who -succeeds to the remainder in receiving the yearly .rental or otherwise, (p. 38).</p> <p>2. Lute Tehanoy — Statutory Provisions.</p> <p>The statute merely preserves the tenancy until the end of the current year, and does not change the date of its beginning or termination, hut only avoids the hardships of the unexpected death of the life tenant, (p. 39).</p>

<p>1. Fkauduudnt Gift.</p> <p>Money or property delivered by a wife to lier husband is presumed', in a contest between her and tbe creditors of ber insolvent husband, to have been a gift, and tbe burden is upon her to show tbe contrary, (p. 42).</p> <p>2. Fjraudulent Gift!- — Presumption.</p> <p>When tbe facts and circumstances tend to show, that a gift was intended, and that tbe husband used and dealt with tbe property as bis own, the mere parol testimony of tbe husband and wife of a private understanding between themselves, that tbe transaction was by them considered or intended as a loan to tbe husband by the wife and not a gift, will not as against tbe creditors of an insolvent husband rebut tbe presumption of a gift. (p. 45).</p>

<p>1. Lease — Forfeiture.</p> <p>An oil and gas lease containing the provision “That this lease shall become null and void, and all rights hereunder shall cease and determine unless a well shall he completed on the said premises within three months from the date hereof, or unless the lessee shall pay at the rate of twenty-two dollars and twenty-five cents quarterly in advance for each additional three months such completion is delayed from the time above mentioned for the completion of such well until a well is completed; and it is agreed that the completion of such well shall he and operate as a full liquidation of all rental under this provision during the remainder of the term of this - lease. Such payments may be direct to the lessors or deposited to their credit in the Wirt Co., Bank,”' and the further provision that the lessee “Shall have the privilege at any time to remove all machinery and fixtures placed on said premises and further shall have the right at any time to surrender this lease to first parties for cancellation, after which all payments and liabilities to accrue under andi by virtue of its terms shall cease and determine and this lease become absolutely null and void.” Held: That deposit of a payment by the lessee in such bank to the credit of the lessor on or before the date such payment would fall due is a sufficient payment to lessor and it is immaterial whether it is paid in lawful money or by check, draft or otherwise; and Held further, the lessor cannot avoid such lease or declare a forfeiture thereof within the time for which he has received the stipulated rental and a lease executed to a third party within such time intended as an act of forfeiture,' is void. (p. 54)1</p> <p>2. Syllabus Appboved.</p> <p>Syllabus in Boyd v. Brown, 47 W. Ya. 238, approved.</p>

<p>1. Statute of Fkauds.</p> <p>Where the evidence in relation to a parol gift of land is. con tradictory the Statute of Frauds ought especially to apply against it. (p. 63).</p> <p>2. Syllabus Appboved.</p> <p>Syl. points 1 and 2, Gallagher v. Gallagher, 31 W. Va. 9, approved and affirmed, (p. 69).</p>

Petition for mandamus by Lee Marstiller as administrator of William M. Phares, deceased, to John Homer Holt, as Judge, and S. W. Ward. STATEMENT. In 1877, in the county court of Eandolph County, in an action of debt, William M. Phares recovered a judgment against S. W. Ward for money.

Action by the State, for the use of Amos N. Prichard, against Trever J. Richards and others. Judgment for plaintiff, and defendants bring error.

<p>1. Annual Lease — Forfeiture—Limitation.</p> <p>Where a grant of oil and gas, and oil and gas privileges, in consideration of one dollar, without limitation as to time, contains a forfeiture clause in these words: “In case no well is completed within two years from this date, then this grant shall immediately become null andi void as to both parties, provided that second party may prevent such forfeiture from year to year by paying to the first annually in advance eighteen and seventy-five one hundredths dollars at her residence until such well is completed,” such lease is thereby converted into a lease from year to year at the option of the lessee until a well is completed. It would1 then continue so long as oil or gas is produced in paying quantities, (p. 91).</p>

<p>1. Unlawful Detainee! — Summons.</p> <p>The property as. described, in a deed of conveyance and which can he made certain by the sheriff in executing a writ of possession, is a sufficient description in a summons of unlawful entry and detainer, (p. 93).</p> <p>2. Parol Evidence — Misnomer.</p> <p>Parol evidence to show that a deed1 absolute on its face was intended as a mortgage is not admissible in a suit at law. P. 94).</p> <p>3. Unlawful Detainer — Limitation—Ejectment.</p> <p>To sustain an action of unlawful entry and detainer, the plaintiff must show that his right of action accrued within three years from the commencement of his action, otherwise he will be remitted to his action of ejectment, (p. 95).</p>

<p>1. Joint Obligoks — Judgments.</p> <p>Section. 52, chapter 125, Code, so far changes the common law as to permit a plaintiff to take several judgments against several joint obligors, as they are served with process in the same suit. It does not authorize more than one suit against all or any of the obligors, whether served with process in the first suit or not. As to the bringing of more than one suit on the same joint cause of action, the common law rule remains unchanged, (p. 98).</p> <p>2. Judgment — Joint Obligors.</p> <p>A judgment against two joint obligors served with process is no bar to a subsequent judgment against a third obligor in the same suit who was not served with process or before the court at the time the first judgment was rendered, (p. 98).</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by Margaret Meeks against the Ohio River Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Bill by Flora Collins and others against Joseph Feather’s executors and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. Sanity — Presumption of Law.</p> <p>The sanity of tlie grantor in a deed, the validity of which is questioned, is presumed hy law, and the burden is upon the attacking parties to overthrow the presumption, (p. 126)'.</p> <p>2. Sanity.</p> <p>In the absence of fraud, imposition or undue influence, such presumption will not he overcome by evidence of mere mental weakness or feeblesness of understanding, if the grantor has sufflcient capacity to understand the nature of the act he does. (p. 126).</p> <p>3. Life Tenant — Royalty Interest.</p> <p>The interest of a life tenant in the proceeds ’ of royalty oil taken from the premises is the interest on the fund during his natural life. (p. 128).</p> <p>4. Life Estate — Erroneous Decree.</p> <p>Where petroleum oil is extracted from land, conveyed to a person for life and remainder in fee to his heirs, under a lease from the life tenant, and a sale of the interest in remainder by order of a court of chancery in a proper proceeding for the purpose, reserving in the lease and order of sale one-eighth of the oil for the owners of the land, it is error to decree, to the life tenant or his grantees, in another suit, the royalty oil or proceeds thereof to hold until the expiration of the life tenancy and take the income thereof, and then pay over the corpus of the fund to those entitled in remainder, (p 130).</p> <p>5. Insane Person — Guardian ad litem — Error.</p> <p>It is reversible error to proceed in a suit against an insane-person and enter a decree against him without the appointment of a guardian ad litem for him and the filing of an answer by such guardian, (p. 128).</p> <p>C. Insane Person — Guardian ad litem.</p> <p>When a person has been adjudged to be insane, the presumption of insanity continues until he is discharged, and, in a suit against him, it is necessary to appoint a guardian ad litem for him. (p. 129).</p> <p>7. Infant’s Answer — Affidavit.</p> <p>The mere formal aswer of a guardian ad, litem to an infant need not be sworn to, unless it be in a proceeding to lease or sell bis real estate, (p. 131).</p>

<p>1. Criminal Law — New Trial — Joint Defendants.</p> <p>When, on the separate trial of one of three persons jointly indicted for murder, the evidence shows that the accused can1 be convicted only as principal in the second degree, and that, at the time of the hilling, he did no act of violence, and, at the most, was present only for the purpose of aiding, if need be, and there is a conviction of voluntary manslaughter, the appellate court, in determining, on a writ of error, whether a new trial shall be allowed, will consider the evidence introduced, so far as is necessary in disposing of the assignments of error, although it tends to prove the crime of murder, as to which the verdict has wrought an acquittal, (p. 135.)</p> <p>2. Res Gestae — Evidence—Motive.</p> <p>In such case, the prior acts, declarations and threats of the accused, even though not a part of the res gestae, are admissible in evidence against him when they legitimately tend to ■establish motive and intention to do the killing, and a common purpose and design on the part of himself and those jointly indicted with him to commit the act. (p. 145).</p> <p>3. Conspiracy.</p> <p>Proof of conspiracy or the existence of a common design on the part of two or more persons to commit a crime for which they are jointly indicted may be extracted from the circum-. stances connected1 with the transaction which forms the subject of the accusation; and, when they are such as fairly tend to prove such conspiracy or common design, they constitute a sufficient foundation for the admission of the acts and declarations of each of the parties as evidence against the others, (p. 144).</p> <p>4. Criminal Law — Oo-conspirator.</p> <p>Although evidence of the acts and declarations of an alleged co-conspirator be admitted' without a foundation therefor having been laid, the judgment will not be reversed for that reason, if the evidence show that prima facie the fact of conspiracy has been established. (144).</p> <p>5. Joint Indictment — Separate Trial.</p> <p>On a joint indictment of two or more persons, the State, with the permission of the court, may elect to try any or all of them separately, (p. 154).</p> <p>6. Reversible Error — 'Witness—Relation.</p> <p>It is error to permit it to be shown, in the course of a cross1 examination as to the relation of a witness to the accused in whose favor she testifies, that she is of illegitimate birth, but the error is not sufficient to reverse the judgment, (p. 154).</p> <p>7. INSTRUCTIONS TO JURIES.</p> <p>When an instruction given is incomplete, but states the law correctly as far as it goes, and the omitted part is supplied by other instructions given, such omission is not error, (p. 154).</p> <p>8. Court’s Instructions.</p> <p>The court is not bound to repeat its instructions and' it is not error to refuse to do so. (p. 158).</p> <p>9. Error — Instruction.</p> <p>An error in an instruction favorable to the accused, and not such as might mislead the jury to his prejudice, affords him no ground of complaint against the verdict, (p. 159). •</p> <p>10. Self Defence — Criminal Law.</p> <p>The principle of self defense extends to the right of a person to defend a near relative when in immediate danger of death or great bodily harm, and will excuse homicide in such case, when the hilling is upon necessity or apparent necessity and the designation of it as self defense in instructions which clearly explain the applicability of it to the case on trial, does not render the instruction improper, (p. 157).</p> <p>11. Criminar Daw — Instruction■—Error.</p> <p>The court,, on the separate trial of J. P., having instructed the jury that they might find him guilty of murder of the first degree, murder of the second degree, voluntary manslaughter, or involuntary manslaughter, or acquit him, it Appearing from the evidence that D. P. did the actual killing, and the evidence tending to prove that J. P. and D. P., jointly indicted with him, are principals in the second degree, it was not reversible error , to give the following instruction: “The court instructs the jury that under the indictment for the offense wherewith they stand charged, that if either, J. P., D. P., or D. P., did murder C., the defendant J. P. being then and there present, lending his countenance to the commission of said offense, they must find him guilty as charged in the indictment.” (p. 160).</p> <p>12. Instructions — Evidence.</p> <p>It is not improper for the court to refuse to give to the jury, as an instruction at the request of the accused, abstract propositions of law, quoted from a text booh, and not indicating to what class of evidence in the case it is applicable, (p. 159).</p> <p>13. Error — Instructions■—Evidence.</p> <p>It is not reversible error to refuse to insrtuct the jury that they should consider facts, established by the evidence, in arriving at their verdict, (p. 162).</p> <p>14. Crimiwax, Law — Conspiracy.</p> <p>To convict a person as a principal in the second degree, it is sufficient to find that he conspired with the slayer, or joined him, in a common design, to kill the deceased, that the killing was done in pursuance of such conspiracy or design, and that the accused was present at the time of the killing for the purpose of aiding therein, if necessary to its accomplishment, and instructions, calculated to impress upon the jury that they must find that he actually participated in the act of killing, are improper and may be refused, (p. 162).</p> <p>15. Error.</p> <p>It is not improper for the trial court, in overruling a motion to exclude certain evidence, on the ground of inadmissibility, to remark, in rne presence of 'the jury: “I don’t think I ought to give my reasons for this decision. I don’t want to give any intimation how I regard it. I simply say I overrule the motion to exclude the testimony.” (p. 163).</p> <p>16. Principal — Second Degree Murder.</p> <p>Where the evidence tends to convict the accused as a principal in the second degree, the fact that he had a lawful purpose in going to the place of the killing at the time it occurred, while relevant and material and competent evidence in his favor, is not conclusive of his innocence, nor of the absence of conspiracy on his part. (p. 156).</p>

<p>1. Continuance.</p> <p>It is a settled rule of this Court that the granting or refusing a continuance of a cause is within the sound discretion of the trial court and that a judgment or decree of such court will not he reversed for that reason, unless the action of the court was clearly erroneous, (p. 169).</p> <p>2. Error — Instructions.</p> <p>Error in giving, or refusing to give certain instructions, or in admitting or refusing to admit certain evidence affords no . groundi for reversing a judgment, when it is evident that the plaintiff in error could not have been injured thereby, (p. 179).</p> <p>3. Damages.</p> <p>In an action for personal injuries received by reason of the negligence of a telephone company in permitting its wire to be stretched so low down over the public highway as to be caught by a horse’s feet in passing, it is not competent to prove the condition of the wire at that point months subsequent to the time of the injury complained of. (p. 176).</p>

<p>1. CONSTEUCTION OF STATUTE.</p> <p>The word, “surface”' when specifically used as a subject of conveyance has a definite and certain meaning, and means only that portion of the land which is or may he used for agricultural purposes, (p. 186).</p> <p>2. Conveyances.</p> <p>M. and D. jointly owned in fee simple a tract of 180 acres of land. M. conveyed to W. “All the coal in, on, or underlying the undivided one-half” of the tract and granted to W. the right to make and maintain on said tract of land1 such openings as might he necessary for ventilation, for drainage and for taking out all of the coal without any liability for injury to the surface of said land, or anything thereon, by reason of the mining of said coal, and the right to remove same, with rights-of-way, etc. D. conveyed to W. his undivided one-half of the tract in fee.. W. conveyed to M. “All the surface of the one hundred and eighty acres undivided that was SO' conveyed to him by said D.” retaining the right to make and maintain on said tract of land such openings as might be necessary for ventilation, for drainage and for the taking out of all the coal without any liability for injury to the surface of the land or anything thereon by reason of the mining of said coal, and the right to remove same, and rights-of-way, etc. Held: The said last conveyance from W. to M. was an express grant of the surface only and severed it from all underlying strata. (p. 186).</p> <p>3. Joint Property.</p> <p>The coal and gas in and under the said tract of 180 acres of land is the joint property of W. and M. or their heirs, assigns or grantees, (p. 190).</p> <p>4. Construction ojt Words.</p> <p>It is the safest and best mode of construction to give words, free from ambiguity, their plain and ordinary meaning, (p. 189).</p>

<p>1. Oil Lease — Forfeiture.</p> <p>The clause of forfeiture in an ordinary oil lease is for the benefit of the lessor and no act of the lessee can terminate the lease under the forfeiture clause without the lessor’s concurrence. (p. 196).</p> <p>2. Om Lease — Rentals.</p> <p>M. & M. by deed dated Oct. 19, 1898, leased certain premises to M. for oil and gas purposes which lease contained the following provisions: “This lease shall become null and void and all rights hereunder shall cease and determine unless a well shall be completed on the said premises within six months from the date hereof, or unless the lessee shall pay at the rate of $25.50 quarterly in advance for each additional three months such completion is delayed from the time above mentioned for the completion of such well, until a well is completed; and it is agreed that the completion of such well shall be and operate as a full liquidation of all rental under this provision during the remainder of the term of this lease.” M. the lessee assigned the said lease to S. P. Oil Co., which was the lessee for oil and gas purposes of a large area of territory including all tracts contiguous to the said premises, the S. P. Oil Co., drilled a well to completion April 4, 1900, paying'the stipulated rental until the well was completed but which well was “dry.” It then removed its material and machinery from the premises and proceeded to drill other wells nearer to developments already made on the line towards the premises in question; Held: That under the lease and circumstances of the case the S. P. Oil Co. was entitled to a reasonable time in which to return and make further developments under the said lease, (p. 197).</p> <p>3. Oil Lease.</p> <p>After the completion of said dry well H. prevailed on the lessors in said lease in consideration of three hundred dollars cash to lease to him the same premises for oil and gas purposes which they did, inserting however this clause, “It is further agreed between the parties hereto that this lease is made and this contract entered into subject to a certain other lease and contract made for the same premises by the parties of the first part to M. bearing date on October 19, 1898, and recorded in Deed Book 108, page 375, in the county court of Harrison ' County; and that the existence of said former lease is made known to the party of the second part and who is fully informed and aware of its terms and conditions.” Held: The lease to H. was not a declaration by the lessors of unequivocal forfeiture of the first lease, (p. 200).</p>

<p>1. Judicial Eviction — Warranty.</p> <p>Judicial eviction from land is not indispensable to a recovery upon a general warranty. Actual or constructive ouster will suffice, (p. 211).</p> <p>2. ‘Conveyance — Trust Deed.</p> <p>Where there is a conveyance with general warranty, and the land is at the time under a prior deed of trust given by the grantor, under which the land is sold away from the covenantee in possession, who then quits possession, such sale under the paramount claim is a breach of such warranty. i.p. 209).</p> <p>3. Husband and Wife — Real Property.</p> <p>A wife acquiring land must, in a suit by creditors to charge it with her husband’s debts, not merely prove that she paid for it, hut must clearly-prove that she paid for it with her separate estate, else the presumption is that the means paying for it came from her husband, (p. 212j.</p>

<p>1. Burden oe Prooe — Presumption, of Law.</p> <p>Where the burden is on a party to prove a fact material to him, not otherwise clear, his failure, without proper excuse, to produce an important and necessary witness to such fact, raises the conclusive presumption that such witness would not prove it, and the party can not have the benefit of that fact. (p. 212).</p> <p>2. Reap Property — Creditors.</p> <p>If a father put valuable improvements upon land of his daughter, their value may be charged upon the land by his then existing creditor, whether he had, or has not, fraudulent intent as to them in making the improvements, (p. 215).</p> <p>3. Circumstantiai Evidence — Fraudulent Conveyance.</p> <p>Circumstantial evidence in cases of fraudulent conveyances.. See opinion, (p. 218).</p>

<p>1. Conditional Sale — Creditor.</p> <p>The sale or conveyance of land, to a creditor for the payment of a debt, with a proviso, that such sale or conveyance shall be void on the payment of the debt within a certain specified time, will be treated in eguity as a security for the debt, and not art absolute sale or conveyance, (p. 223).</p> <p>2. Tbustee’s Sale — Real Estate — Original Owner.</p> <p>If a trustee advertises land for sale under a deed of trust and he induces the creditor and debtor to enter into an arrangement by which the form of a sale is to be gone through with, but the creditor is to, become the purchaser at the sum total of the debt and expenses of sale, an amount far less than the fair value of the land', with the understanding that if the debtor pays such sum within thirty days such sale or conveyance is to be of no effect or void, equity will treat such sale or conveyance as a mere security for the debt, and will allow the debtor a reasonable time beyond such thirty days in wihch to redeem the land, or will subject the land to sale for the payment for the debt, interest and expenses of sale. (p. 223).</p>

<p>1. Homicide — Degree of Crime — Intoxicated, Person.</p> <p>A person guilty of homicide may reduce his crime from murder in the first degree to murder in the second, by showing that he was so intoxicated at the time the offense was committed as to render him incapable of doing 'a willful, deliberate and premeditated act, and that he did not voluntarily become intoxicated for the purpose of committing the offense. All this may be shown by his own and the State’s evidence, and the facts and circumstances surrounding the case. (p. 226).</p> <p>2. Error — Instructions.</p> <p>It is not error to refuse instructions not justified by the evidence, (p. 225).</p> <p>3. Criminal Law.</p> <p>Where there is no evidence tending to show that the accused had reasonable grounds to believe that the deceased intended to commit murder or felony or to do the accused great bodily barm, it is not error for the court to refuse to instruct the jury that “the accused would he excusable for firing at the deceased if he had reason to believe and did- believe that it was necessary to do so to preserve his own safety.” (p. 227).</p>

<p>1. Contract.</p> <p>A contract for the sale of all the timber, tanbarh and ties on a certain tract of land, and providing that the purchaser is to have two years to take off and remove such timber and not later, does not authorize the purchaser to sever any timber standing on the land after the two years’ limit has expired, (p. 230).</p> <p>2. Equity — Contract.</p> <p>A court of equity cannot reform a written contract between parties plainly expressive of their intention except for mistake, accident, undue advantage or some other established equitable grounds, (p. 231).</p> <p>3. Injunction.</p> <p>It is not error to dissolve an injunction when the bill is barren of equity, (p. 232).</p>

<p>1. Jukisdictiok-.</p> <p>When the jurisdiction of a court is asserted over a cause of action, it embraces everything in the case and every question arising which can be determined in it; and, until thus exhausted, or in some way relinquished, the jurisdiction is exclusive and cannot be encroached upon by any other tribunal, (p. 238).</p> <p>2. Jurisdiction.</p> <p>A court having jurisdiction in personam, may require the defendant to do, or refrain from: doing, beyond its territorial jurisdiction, anything which it has power to require him to do or omit within the limits of its territory, (p. 238).'</p> <p>3. Court’s Possession of Property.</p> <p>When the object of a suit requires the control and dominion of the property involved in the litigation, the court which first acquires possession, or that dominion which is equivalent to possession, becomes vested with the exclusive right to dispose of it for the purpose of its jurisdiction, (p. 239).</p> <p>4. Jurisdiction — In personam — Contempt.</p> <p>A court having jurisdiction in personam may restrain a party from prosecuting a subsequent suit in another county, the effect of which will be to withdraw, from the court first acquiring jurisdiction, a part of the subject matter of the suit, and disobedience of the injunction order is an act of contempt which may be summarily punished, (p. 239).</p> <p>5. Injunction.</p> <p>Sections 4, 6 and 9 of chapter 133 of the Code,' of 1899 are not applicable to an injunction awarded: by a court in aid of its own jurisdiction based upon grounds wholly independent of the injunction, (p. 239).</p> <p>6. Injunction — Jurisdiction.</p> <p>An injunction, issuing from one court, to stay proceedings in another, operates upon the parties only, and does not affect the jurisdiction of such other court, (p. 239).</p>

Application by the State, on the relation of D. C. Westen-haver, for writ of mandamus to A. E. Lambert, clerk of the town of Martinsburg. Writ granted, and defendant brings error.

<p>1. Injunction — Nuisance.</p> <p>To sustain an injunction, inhibiting the drilling of an oil or gas well, or other business, not per se constituting a nuisace, it must be shown that the danger of injury from it is impending and imminent and the effect certain, (p. 253.)</p> <p>2. Injunction.</p> <p>The drilling of a well on a tract of land adjacent to another on which there is a producing well, and in close proximity to such producing well, cannot be enjoined on the ground of danger of ignition of gas from the completed well by fires in the furnace and forges used in drilling the other, when it appears that such danger would: arise only in case it should become necessary to open the producing well for the purpose of repairing the pumping apparatus in case of accident, and that there is no existing cause for opening it, as mere possible, eventual or contingent danger is insufficient, (p. 253).</p>

<p>1. Indictment — Burden of Proof.</p> <p>On tile trial oí an indictment under section 16, chapter 149, Code, the burden of proof is on the State to satisfy the jury that the labor was not in household work or other work of necessity or charity, (p. 260).</p> <p>2. Instruction — Error.</p> <p>On such trial refusal by cue court when asked to instruct the jury to that effect is error, (p. 260).</p> <p>3. Indictment — Babbalh BreuMng.</p> <p>If upon the trial of an indictment under such section it shall be made to appear to the satisfaction of the jury that material permanent loss and injury would come to the owner of an oil well by reason of not pumping it on Sunday, such pumping would be deemed a work of necessity under the statute, (p. 263).</p>

<p>1. Statute oe Limitations.</p> <p>H. a merchant and P. a farmer had a settlement in February, 1891, P. executing his note to H. for balance due two hundred and four dollars. P. continued thereafter to deal with H. on open account and selling to H. from time to time for a period of some four years, products from his farm, the price of which was entered as delivered, on the hooks of H. to the credit of P’s. current account, P. did not direct the application of the price of such products; it will be presumed that P. knew how the same was applied; and after the death of P. his administrator will not he allowed to off-set the price of such products against said note, so given on settlement and have the bene- . fit of the statute of limitation against said open account of H. (p. 267).</p> <p>2. Persons in Common — Gratuiiious Services.</p> <p>Calvin P. and Mollie P. owned adjoining farms, were both unmarried, were cousins, lived together at the house of M. P., eating at the same table and each furnishing supplies thefe-for, for a period of at least forty years, until the death of C. P., during which time they kept no accounts between them, never made a settlement, neither presented a bill to, nor made a claim against the other; a part of the stock on the farms, they owned in common, and a part separately and individually; but the stock was fed indiscriminately from the products, and upon both farms; no contract or agreement was made or existed between them for the payment of any hoard by him, or that either should pay to, or receive from the other anything for services rendered: Held: That the relations existing between the parties, and the circumstances were such as to raise the presumption that all such services were gratuitious and neither expected to make any charge against the other or to pay anything to the other, (p. 268).</p>

<p>1. Oil Lease- — Forfeiture.</p> <p>To- work a forfeiture of an oil and gas lease there must he a breach of a condition or covenant expressed in the lease; ordinarily a breach of an implied covenant will not work a forfeiture óf the lease, (p. 281).</p> <p>2. Lease — Forfeiture.</p> <p>Where in such lease, causes of forfeiture are specified it is not to be inferred that there are other causes of forfeiture not declared in the lease to he such. (p. 283).</p> <p>3. Lease — Implied Oovenarit■ — Damages.</p> <p>Under such a lease, the remedy for a breach of an implied covenant is ordinarily not by way of forfeiture of the lease in whole or in part, hut by an action for damages caused by such breach, (p. 283).</p>

<p>1. DESCENDANT — ISSUe.</p> <p>The word “descendant” as used in section 13, chapter 78, Code, means one who proceeds from, the body of another, however remotely, and is co-extensive with “issue” but does not embrace others not of issue, (p. 286).</p> <p>2. Statutes — Construction.</p> <p>Where the words of the statute are not ambiguous but have a clear and definite meaning, it is not within the province of the courts to go further by extending its provisions so as to include persons who are clearly excluded by the statute itself, (p. 288).</p> <p>3. Advancement — Parent intestate.</p> <p>The true potion of advancement is giving by anticipation the whole or a part of what it is supposed a child will he entitled to on the death of the parent making it and dying intestate. (p. 288).</p> <p>4. Hotchpot — Descendants—Advancement.</p> <p>The doctrine of hotchpot is designed by the statute to benefit descendants only, advancements are not to be brought into distribution or partition in respect to any other persons, (p. 289).</p>

<p>1. Witness- — Evidence.</p> <p>A witness will not be compelled to answer a question touching matter not material, but collateral, to the issue, if the answer will degrade him. But the privilege to refuse to answer is personal to him, and cannot be used by a party. If the witness does not refuse to answer, it is in tlie discretion of tlie court to allow, or refuse to allow, an answer. If tlie court refuse to allow an answer, it is not at all the ground of .exception by a party; nor is it such ground of exception, if the court allows an answer, except, perhaps, when such discretion is grossly abused to the manifest harm of a party, (p. 298).</p> <p>2. Evidence — Error—Witness.</p> <p>The mere putting of a question the answer to which may degrade a witness, which he refuses to answer by leave of the court, is not ground of exception for error, (p. 299).</p> <p>8. Evidence — Error—Jury.</p> <p>The general rule is that if. improper evidence has been given to a jury, and is afterwards withdrawn, by the court from the consideration of the jury, that cures any error committed by its introduction; but there may be instances where such a strong impression has been made upon the minds of the jury by illegal • and improper testimony that its subsequent withdrawal will not remove the effect caused by its withdrawal, and then the error will call for a new trial, (p. 299).</p> <p>4. Evidence — Gross Examination — Error.</p> <p>On cross-examination to discredit a witness he may be asked whether he has been confined in the penitentiary; and if he answers that he has been, it is no ground of exception by the party introducing the witness. It is not necessary in such case to produce the record of conviction, (p. 301).</p> <p>5. Questions oe Pact — Jury—Verdict.</p> <p>Again the court holds that a verdict of a jury upon the facts resting upon the weight of the evidence, the inferences to be drawn therefrom and the credibility of witnesses, has almost uncontrollable finality, and is sacred in law beyond reversal by this Court. This Court can not merely weigh evidence in competition with a jury. It can set aside such a verdict only where it is very plainly and manifestly contrary to, or without sufficient evidence, and plainly inflicts injustice, (p. 304).</p>

<p>1. TempoRaey Injunction — Duplicity.</p> <p>If on bill, answers, affidavits and exhibits, the facts, circumstances and legal presumptions are strongly in favor of plaintiffs’ equity and of defendants’ unfairness and duplicity, it is not error for the circuit court to continue a temporary injunction and receivership for the purpose of preserving the litigated property, until the final hearing of the cause, (p. 308).</p>

<p>1. Decree — New Tria\ — Reversal-Opinion.</p> <p>Where the court reverses a decree upon the merits and re mands the cause to the circuit court “for. further proceedings therein to he had according to the rules and principles stated in the written opinion” filed in the cause, the findings of fact set forth in the opinion are binding upon the court1 below, and that court cannot permit new pleadings and: further evidence to be filed, touching any matter involved in the decision of the appellate court, but must enter a decree in accordance with the opinion, (p. 313).</p> <p>2. Appellate Court — Decisions—Appeal.</p> <p>If, in such case, the court below allows the cause to be reopened by new pleadings and evidence, and pronounces a decree contrary to the decision of the appellate court, the party aggrieved: thereby may appeal from the decree and have the same set aside and, on the second appeal, a mandate -will go to the court below to enter a decree in conformity with the decision on the first appeal, (p. 315).</p>

<p>1. Equitable Title — Real Estate — Statute of Frauds.</p> <p>A trust, as the basis of an equitable title to real estate, may be proved by olear and satisfactory parol evidence, and, in such case, the statute oí frauds does not apply, (p. 319).</p> <p>2. Equitable Estate — Preponderance of Evidence.</p> <p>Although the evidence of the parties litigating; in respect to such equitable estate, conflict, it will be established if there is a clear and weighty preponderance of evidence in favor of the plaintiff, (p. 322).</p> <p>3. Equitable Title — Adjudication.</p> <p>Where the legal title is outstanding and under the control of the court in another suit in which the sale, under which the contending claimants purchased, was made, the court may adjudicate the rights of the parties, in respect to the equitable title, without ordering a conveyance of the legal title, and, if such adjudication be in favor of the plaintiff, it will support his claim in such other suit for an order or decree directing a conveyance of the legal title t'o him. (p. 322).</p> <p>4. Ebkor — -Reversal.</p> <p>Although erroneous, a decree will not he reversed .unless the •error is prejudicial, (p. 323).</p>

<p>1. Syeuabus APPROVED.</p> <p>Clause Y, Point 1, Syl. in case of I-Iinchman v. Ballard, 7 W. Va. 152, approved, (p. 329).</p> <p>2. Tenakts in Common — Jurisdiction.</p> <p>Tenants in common, joint tenants and coparceners are com-pellable to make partition, under chapter 79, Code, and circuit courts have jurisdiction for that purpose, (p. 325).</p> <p>3. Win, — Esiate-r-Devise.</p> <p>F. X L. made liis will containing the following clause: “I also give to my wife the use of the home place, which was purchased of the James Knight estate, but the- same is to be a home for any of my children that may desire to live there,” and provided that at the death -of his wife the said home place “Shall go to and be the property of my three children,” naming them. BeW: That the home place was devised to the wife for her use during her life and that the words “But the same is to be a home for any of my children that may desire to live there” create no estate in the children or trust for their use, nor do they constitute any limitation upon the -estate vested in the wife. (p. 324).</p>

<p>1. Conveyance — Contract■—Trust Deed.</p> <p>A. C. conveyed, to C. the one undivided lialf of the coal in 386 acres of land for the consideration of one thousand dollars paid, and also granted the right to the grantee “To enter upon and occupy such parts or parcels of the tracts herein described as may become necessary from time to time for road and buildings required in the mining and transferring the coal to the railroad and for the use of the lands so required for road as aforesaid the said second party is to pay to the party of the first part the sum of five hundred dollars when he proceeds to remove the coal as aforesaid, but not before; for which sum a vendor’s lien is hereby retained upon the property herein granted:” and warranted generally the property conveyed. A. C. afterwards conveyed to ,G. Jr., in trust to secure a debt to G. the whole of said three hundred and eighty-six acres of land without limitation, . reservation or exception. Still later A- C. devised by will all of said 386 acres without limitation, reservation or exception, except as to the payment of residue of trust debt — three-fourths thereof to his son J. P. in trust for his three children M., J. and R., requiring J. P. to pay the residue of said trust debt to G., and the other one-fourth he devised to M. E. C. and I. W. other grandchildren of testator. At a sale under the trust deed M. purchased the three-fourths so devised which G. Jr., trustee, conveyed to him. M. also acquired the title from M. E. O. and I. W. of the remaining one-fourth. Held: That M. is entitled to the five hundred dollars reserved for use of the land for road and buildings when the coal began to be removed, (p'. 333).</p> <p>2. Fee Simple.</p> <p>Under section 8, chapter 71, Code, the conveyance by A. C. to G. Jr., and the devise to his grandchildren of the three hundred and eighty-six acres of land being without any words of limitation, must be construed to pass the whole estate and interest which A. C. had power to dispose of in such lands, no contrary intention appearing either by the grantor or will of said A. C. (p. 33,6).</p>

<p>1. Notice — Receiver.</p> <p>There must he notice of application for the appointment of a receiver in all cases' of ex parte or vacation application, and in all cases pending the suit, before decree upon the merits, unless the hill prays for the appointment of such receiver, in which case it may he done in term as to real or personal estate without such notice, (p. 353).</p> <p>2. Accounts — Fraud—Mistake.</p> <p>Settled accounts are deemed conclusive between the parties, unless fraud, mistake or omission is shown. (. 355).</p> <p>3. Account — Mista!ce.</p> <p>A hill to reform a settlement of accounts on the ground of mistake, and to correct such mistake, must allege the mistake distinctly and particularly, giving circumstances of mistake, showing wherein that mistake consists, and not he based upon mere general averments of mistake, (p. 355).</p>

<p>1. Notice — Application—Ferry.</p> <p>A notice of an application and an application for a ferry give a sufficient description of the proposed ferry in saying that the ferry is to he “across the Ohio river from a point in Lincoln district, in said county of Tyler, on lands belonging to (persons named) to the said (person’s) landing on the farm of Talbott Bros, in Monroe County, State of Ohio.” (p. 358).</p> <p>■ 2. Ferry — Viewers—County Court.</p> <p>A report of viewers appointed to report upon an application for the establishment of a ferry, signed by two of three viewers, the order of the county .court authorizing two to act, is good. (p. 358).</p> <p>3. Land — Ownership—Ferry. -</p> <p>Ownership of land on the West Virginia side of the Ohio river is sufficient to enable the owner to sustain an application to establish a ferry over it, without his showing that he owns land on the Ohio side of the river, (p. 359).</p> <p>4. Appeal — Record—Jury.</p> <p>An appeal from the county court to a circuit court under sections 47, 48 of chapter 39, and section 14, chapter 112, Code of 1899, is to be tried by the record as made up in the county court, and does not give right to a new trial by jury or otherwise than hy the record until reversal on the record, (p. 359).</p> <p>5. Damages — Ferry.</p> <p>The owner of a ferry cannot recover compensation or damages for injury to his ferry flowing from loss of patronage incident to the establishment of a sceond ferry, either from the owner of a second ferry or the county, (p. 360).</p> <p>6. Feery.</p> <p>Where there are already two ferries within a mile of each other, and the owners of one of them apply for the establishment of a third one between them, and its establishment will injure the revenue of the other existing ferry, and it does not appear that the travel will well support three ferries, and there is no imperative public need of the third ferry, it should not be established, (p. 361).</p>

<p>1. Instruction — Error—Judgment.</p> <p>When, an instruction is incomplete in not going far enough to put the law upon its subject, hut other instructions do state the law omitted and taken together they properly state the law upon the subject, no error can be based on the defect of such instructions to reverse the judgment, as the other instructions cure the defect in it. (p. 364).</p> <p>3.Instruction.</p> <p>All instructions given are instructions of the court, regardless of who requests them, and are to be considered together, (p. 365).</p> <p>3. Self Defence — Instructions.</p> <p>Where point 1 in State v. Jones, 20 W. Ya. 764, is put in an instruction touching self defence, the second point should be incorporated in it also. (p. 366).</p> <p>4. Instructions.</p> <p>It is again held that where instructions clearly and fairly lay down the law upon a subject, it is not error to refuse others to the same effect. The court need not repeat instructions already substantially given, (p. 367).</p> <p>5. Jury.</p> <p>Separation of jury referred, to. (pp. 367, 368).</p>

<p>1. Wbit of Error-Evidence.</p> <p>A writ of error to a judgment of tlie circuit court for assigned errors involving the evidence alone, which is not certified or in any manner made part oí the record, will he dismissed as improvidently awarded. Graft v. Mann, 46 W. Ya. 478. (p. 373).</p>

<p>1. Druggist — License.</p> <p>In. prosecutions for carrying on tile business of druggist without a state license, on the plea of not guilty, the burden of justifying under or proving license is on tbe defendant, (p. 374).</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Action by W. J. Brightwell against W. W. Bare, et ails. Judgment for plaintiff and defendants appeal.</p>

<p>1. Devise — Legal Heirs.</p> <p>A devise to Bl K. M. “and to his child or children by him begotten in lawful wedlock” of certain real estate; and, if the said B. K. M. should “die without leaving any child or children living at the time of his death begotten by him in lawful wedlock,” then over; the said B. K. M. having had no child either at the date of the will or at the time of the death of the testator, but four children having been born to him in lawful wedlock after the death of the testator, does not entitle the children to take an interest in the land as joint tenants or tenants in common with the said B. K. M. and they cannot have partition of the land, as against him. (p. 386).</p> <p>2. Jurisdiction — Wills.</p> <p>Jurisdiction in equity to construe wills is limited and special, and will only be exercised as incident to general equity jurisdiction, and then, in a particular case, only to the extent of determining whether or not the relief sought can be granted, (p. 394).</p>

<p>1. Abandonment — Property'—Highway.</p> <p>The owner may dedicate his land to the public for use as a highway hy acts and declarations, without deed or other writing; but such acts and dec’arations must be deliberate, unequivocal and decided, manifesting a positive and unmistakable intention to permanently abandon his property and devote it to public use. (p. 400).</p> <p>2. Railroad — Right of Way — Dedication.</p> <p>A dedication by a railroad corporation, to bind the corporation beyond revocation, must be made by the directors, or recognized by them in some way, or be expressly ratified by them, or by such public use for such time and under such circumstances as to justify the inference of such ratification. The mere act of officers and agents malting such dedication, without authority from the directors, will not make a valid dedication, unless by such express or implied ratification, (pp. 399, 400).</p> <p>3. Railroad — Right of Way.</p> <p>Where a railroad company occupies a street which is a public highway in an unincorporater village, and acquires a lot with intent to open through it a way in place of the street, but does nothing more to evince a dedication than to tear down the fence around the lot and allow its use by the public for a way, this does not constitute an irrevocable dedication, (p. 400).</p> <p>4. Corporation- — Dedication—Public TJse.</p> <p>A corporation may dedicate some of its land to public use for a highway, if it do not materially interfere with the accomplishment of the purpose of its incorporation, (p. 402).</p> <p>5. Dedication — Public Use.</p> <p>To render a dedication of land for a highway valid to create a highway as to a county, so as to charge it with maintenance and repair, there must he an acceptance of the dedication hy the proper public authority, (p. 399).</p> <p>6. Dedication — County Court.</p> <p>If a land owner dedicate a highway oyer his land for public use by a valid dedication binding on him, and it is accepted by the public by general use of the way, it becomes a highway as between the dedicats and public beyond his revocation of the dedication, though the dedication is not accepted by the county court; but this does not charge the county with maintenance or repair of the highway, (p. 399).</p> <p>7. Railroad — Dedication.</p> <p>Oral evidence of a general manager of a railroad company that the company purchased a lot of land for the purpose of dedicating it to public use as a street and tore down the fences around it and threw it open to public use, does not prove such dedication of it as to render the dedication irrevocably, (p. 398).</p> <p>8. Railroad — Damages—Streets.</p> <p>In an action by the owner of a village lot against a railroad company for damage to the lot resulting from the taking of a street near the lot by the company for its track, the company gave oral evidence to show in defence or mitigation of damages, that the company had dedicated a street or way over a lot owned by it in lieu of the street taken for its track, and thus took the position that such dedication had been made. This did not constitute an estoppel against the company’s, afterwards in other suits, denying a dedication, so as to defeat or mitigate a recovery of damages, (p. 398).</p> <p>9. Railroad Company — Dedication—Attorney.</p> <p>In such action an attorney of the railroad company in adducing evidence to prove such dedication and making such defence of dedication does not bind the company against its denial in another suit of such dedication, (p. 399).</p>

<p>1. Telegraph Co. — Damages—Messages.</p> <p>A condition on a blank telegraph, message, providing that the “company shall not he liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message beyond the amount received for sending the same,” is not valid and effective to excuse the telegraph company from liability for total omission to send or deliver a message, (p. 411).</p> <p>2. Telegraph Co.- — Message—Damages.</p> <p>A telegraphic message importing on its face a proposal to sell lumber is sufficient of itself to charge the telegraph company . with notice of its importance, so as to call for prompt transmission and delivery, (p. 413).</p> <p>3. Telegraph Co. — Compensatory Damages.</p> <p>Compensatory damages cannot be recovered of a telegraph company for failure to send or deliver a mere proposal to sell lumber, as they are contingent upon its acceptance, (p.414.)</p> <p>4. Telegraph Co. — Damages—Messages.</p> <p>In answer to a telegram to a lumber company asking whether it could furnish certain lumber and at what price, a reply telegram that it could furnish it at a certain price was delivered to a telegraph company for transmission, but was either never sent or never delivered. In an action for damages by the lumber company against the telegraph company the measure of damages is not the difference between the cost of the lumber delivered at the point of delivery and the fixed price, hut the difference between such price and the market value of the lumber at the time when delivery would have been made, if the contract had been consummated, (p. 417).</p>

<p>1. Cbiminal Trial — Affidavit—Error.</p> <p>Where the record shows that “T. who stands indicted for felony, was this day set to the bar in custody of the jailer of W. County, thereupon the said prisoner for plea says he is not guilty as in the indictment against him is alleged and of this he puts himself upon the country, and the prosecuting attorney doth the like and issue is thereon joined,” and on the 14th day of February the jury rendered a verdict of guilty on said plea, and on the 14th day of March following defendant moved the court to correct the. record of the plea of not guilty entered January 30, and tendered affidavits of defendant, of defendant’s counsel and others in support of the motion to show that the plea of not guilty was entered by defendant’s attorney and not by him in person. Held: not erf or to refuse the filing of such affidavits, (p. 426).</p> <p>2. Bit.i. oip Exceptions.</p> <p>The office of a hill of exception, is to call the attention of the court to some specific matter as to which error is claimed and when the exceptant relies upon the hill of exceptions he must show hy means of it the error complained of clearly and affirmatively; and in order to have relief he must further show that such error was to his prejudice, (p. 429).</p> <p>3. Geand Jtjkt — Bill of Exceptions.</p> <p>Where the record shows that on a certain day “V. gentleman, foreman, this day appointed hy the court as such” (and fifteen others naming them) “were empaneled and sworn a grand jury of inquest, in and for the body of the county of W., and having been charged were sent to their room to consider of the business before them” and no irregularity in summoning or convening the grand jury is pointed out in a bill of exceptions it v/ill he presumed that no such irregularity existed, (p. 429).</p> <p>4. Homicide — Exhibit.</p> <p>It is not error to exhibit to the jury on the trial of a homicide the deadly weapon or instrument with which the act was committee, the same being identified as the one used. (p. 434).</p>

<p>1. CouRT — Injunction—Notice—Attorney-at-Law.</p> <p>Under section 3, chapter 133, Code, a circuit court or judge thereof in vacation, on application for injunction, may exercise a sound discretion in the matter of requiring notice to he given to the adverse party or his attorney-at-law or in fact, of the time and place of moving for it before the injunction is awarded.</p> <p>2.' Association' — By-Law•—Contract.</p> <p>A voluntary association having adopted a constitution or rules and by-laws, the same are to he considered in the light of a contract and the “Majority rule” in the government of the association does not obtain unless it is so provided in such contract, (p. 438).</p> <p>3. Association — Diversion of Funds.</p> <p>To divert the funds of such association to other purposes than those set forth in the constitution, by-laws, rules ■ and regulations adopted by the association requires .the consent of each and every member of the association, (p. 439).</p> <p>4. Ahitóles oe Aqbeement — Public Policy.</p> <p>The articles of agreement adopted by a voluntary association by whatever name called, whether constitution, by-laws, rules and regulations, or any other name,, constitute a contract between the members of such association which the courts will enforce, if not immoral or contrary to public policy or the law of the land. (p. 438).</p>

<p>1. Deed — Description of Property.</p> <p>When a deed describes the property thereby conveyed as real estate situated in a certain town and known on the plat of said town as Lot No. 30, Block 7, the identity of the plat may he shown by parol evidence, and, when shown, the plat becomes a part of the deed as fully as if it were set out in it. (p. 444).</p> <p>2. Deed — Construction—Court.</p> <p>Construction of tlie terms used in a deed, aside from extraneous evidence, is for the court, (p. 444).</p> <p>3. Deed — Description of Property.</p> <p>Application of the description in a deed to the land is for the jury, and parol evidence is admissible to aid in making</p> <p>■ the application, but it cannot be used to enlarge the description. (p. 445).</p> <p>4. Questions oe Fact — Court.</p> <p>When a question occurs before a court of law, whether certain evidence is competent or not, the determination of which depends on certain preliminary facts, those facts must be decided by the court, (p. 446).</p> <p>5. Ejectment — Land, Title — Evidence.</p> <p>When, in an action of ejectment predicating a claim of title solely upon a deed referring to a plat, there is sufficient evidence of the identity of the plat to show prima facie that it is the one so referred to, and there is no evidence to the contrary, the court should construe the deed as if the plat -were incorporated in it, and rule accordingly upon the admissibility of oral evidence offered, (p. 448).</p> <p>6. Bile of Exception — Error.</p> <p>A bill of exception to the action of the court in excluding evidence offered is not available as ground of error, unless it shows that the evidence was, or would have become relevant, material and important, (p. 448).</p>

<p>1. Garnishment — Statutory Power — Jurisdiction.</p> <p>Garnishment is the exercise of a special and limited statutory power, the requisites of which are jurisdictional, (p. 454).</p> <p>2. Seizure — Condemnation—Judgment.</p> <p>Although, in such proceeding, there is no actual manual seizure of property by the executing officer, it is in the nature of a proceeding in rem, and jurisdiction of the debt or property sought to be thereby subjected must be obtained, else the court cannot pronounce judgment of condemnation against it. (p. 454).</p> <p>3. Garnishment — Court—Condemnation.</p> <p>Garnishment is a dual proceeding, moving against the garnishee in personam to compel him to answer and disclose what property and estate of the defendant he has in his hands and to hold the same subject to the order of the court, and against the property and estate itself, to extinguish the right of the defendant in it by condemnation and appropriation of it to the satisfaction of the plaintiff’s claim, (p. 455).</p> <p>4. Non-Resident — Jurisdiction—Garnishee.</p> <p>A non-resident, temporarily in the State, may be summoned and compelled to answer as garnishee, but if, upon his answer, it be established that he is a non-resident, he cannot be subjected to further proceedings in the cause, for want of jurisdiction, unless, when garnished, he have in the State property of the defendant in his possession, or be bound to pay the defendant money or deliver to him property within the State, (p. 456).</p> <p>5. Foreign Corporation — -Non-Resident—Garnishment.</p> <p>Foreign corporations and non-resident individuals stand upon the same footing in respect to garnishment, except that the former are subject to garnishment when doing business in the State in which the garnishment issues in such sense and to such extent as to have become domiciled therein, (p. 4'59).</p> <p>6. Railroad Debts — Jurisdiction—Garnishment.</p> <p>A debt due from a foreign railroad corporation, operating no railroad in this State and doing no business here other than maintaining, jointly with otlier railroads, an agency relating to through, freight service, and for the soliciting of freight for such company, to be handled on its lines without the State, is beyond the territorial jurisdiction of the courts of this State and not subject to garnishment here. (p. 462).</p> <p>7. Garnishee.</p> <p>The garnishee, in the eye of the'law, is a mere stakeholder, a custodian of property or estate attached in his hands, and has no right to do any voluntary act to the prejudice of either the plaintiff or defendant in the action. He must let the law take its course, except that he may protect himself from jeopardy or injury by unauthorized acts and proceedings, (p. 466).</p> <p>8. Garnishee — Attachments.</p> <p>A garnishee cannot give jurisdiction of a debt due from him by his voluntary appearance, when not previously served with the order of attachment, nor when an attempted service is invalid, (p. 465).</p> <p>9. Non-Resident — Service of Process — Jurisdiction.</p> <p>Omission to show in the return of service of an order of attachment upon a foreign corporation as garnishee that the agent upon whom the service was made resides in the county in which he was served, renders the service invalid, and, in such case, the court obtains no jurisdiction of the res, for want of service on the garnishee, (p. 467).</p> <p>10. Prohibition — Court Jurisdiction.</p> <p>Prohibition lies from a circuit court to a justice of the peace to restrain him from proceeding in an action, when the subject matter thereof is beyond his territorial jurisdiction, and also when, by reason of want of service or invalidity of service, he has not acquired such jurisdiction; although, when he has jurisdiction of the subject matter, and the question of his jurisdiction of the person depends upon some fact to be determined by him, his erroneous decision in favor of jurisdiction is only error not subjecting him to prohibition, (p. 470).</p> <p>11. Decisions Aeeiríued.</p> <p>In so far as Mahany v. Kephart, 15 W. Va. 609, and Stevens v. Brown, 20 W. Ya. 450, hold, that the exemption laws of another State have no extra territorial force and will not be enforced by the courts of this State, they are reaffirmed, (p. 472).</p>

<p>1. Carrying Concealed Weapons — Revolver.</p> <p>If a person on request of the owner carry a revolver from his (the carrier’s) hoarding house to a shop to he repaired, he is technically guilty under section 7, chapter 148, Code, although such revolver was broken at the time, and would not explode a cartridge, (p. 475).</p>

<p>1. Tenant — Rent.</p> <p>A tenant of land, not merely of a room or appartment, must pay rent for his term though, a building on it included in the lease without fault' on his part, is totally destroyed by fire, unless the lease otherwise provide, (p. 477).</p> <p>2. Tenant — Annual Lease.</p> <p>One who enters into possession under a written lease without seal for a term greater than five years is a tenant at will; hut if he pays periodical rent, the tenancy is by law one from year to year, and he must pay rent accordinly. The lease does not vest an estate for the term, but fit is admissible evidence to prescribe the rent and the rights of the parties and all things save duration of the tenancy. The tenant can only end the tenancy by notice to quit, and must pay rent as a tenant from year to year, and cannot-, discharge himself from rent by abandoning the premises, (p. 478).</p> <p>3. Tenant — Inability—Loss of Property.</p> <p>Unless a lease provide for repairs by a landlord, he is not hound to either repair or rebuild in case of accidental destruction. He is bound only so far as his covenant goes. His covenant to repair is independent and does not release from rent, and is to he enforced by recouping damages in an action for rent, or by a-separate action for damages, (p. 483).</p>

<p>1. RailRoad — Roiling Stock — Attachment.</p> <p>Under section 8 of article 11 of'the State constitution rolling stock and all other moveable property* of a railroad company or corporation are subject to process oí attachment, where the attachment is applicable, as well as to ordinary execution. (p. 489).</p> <p>2. Attachment — Contract.</p> <p>The right under attachment of the garnisher as to the garnishee does not by garnishment rise higher than the right of the principal defendant as to the garnishee. When the right of such defendant is subject to a right of the garnishee under a contract between them, the right of the garnisher is likewise subject to the right of the garnishee, (p. 491).</p> <p>3. Railroad — Garnishment—Contract.</p> <p>One railroad company has an agreement with another by which loaded cars of the one are to he received at connecting points by the other and hauled over its line to the destination of load of -the cars, and then he relpaded with other freight by the receiving company on its line, and carried over its line and returned loaded to the railroad of the owner of the cars, the receiving company compensating the owning company for such use of the cars. Such cars cannot he seized under an attachment against the company owning the cars, so as to defeat the rights under such arrangement or contract, óf the company receiving and entitled to so use the cars, and a garnishment of tho receiving company cannot affect its rights under such arrangements by reason of its possession of such cars. (p. 493).</p> <p>4. Ratlroad — Inter-State Commerce — Attachment.</p> <p>A railroad car sent loaded with freight from another state into this state, and to be returned loaded to the former state in the transaction of inter-state commerce, cannot he levied upon under an attachment in this state, nor will another railroad company having such cars in its possession in the process of carrying on inter-state commerce be liable to garnishment by reason of 'its possession received from another company against which an attachment was issued. This is because of the commerco clause of the national constitution and the interstate commerce act of Congress, (p. 496).</p>

<p>1. J ustice — Judgment,—Lien.</p> <p>Under section 5, chapter 139, Code, a judgment for money rendered by a justice against any person is a lien from the date of said judgment, on the real estate of or to which such person shall be possessed or entitled, at or after such date, (p. 513).</p> <p>2. Judgment.</p> <p>But such judgment is not a lien on real estate as against a purchaser thereof for valuable consideration, without notice, until the same is docketed in the judgment lien docket in the office of the clerk of the county court as provided in section 4, chapter 139, Code. (p. 514).</p> <p>3. Judgment — Confession—Appellate Court.</p> <p>Where the confession of a judgment before a justice is alleged in the bill giving date and amount.and admitted by defendant in his answer and proved in the cause by oral testimony without objection or exception, the question of the sufficiency of the proof of the existence of such judgment because the record of it was not produced cannot be raised the first time in the appellate court, (p. 516).</p> <p>4. Judgment! — Lien- Locket — Limitation.</p> <p>Where a judgment by confession amounts to a preference under section 2, chapter 74, Code, and has not been docketed in the office of the clerk of the county court in the judgment lien docket as provided in ‘ section 4, chapter 139, Code, a creditor is not limited to four months in which to attack it by suit as a preference, (p. 514).</p> <p>5. Limitation — Locket.</p> <p>Quaere: Whether, when so docketed the creditor must sue within four months thereafter?</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Action by S. V. Woods, special commissioner, against S. C. Douglass, et ais. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Peocess — Equity Declaration.</p> <p>Tiie process to commence a suit in equity, or an action at law, is a writ commanding the officer to whom it is directed, to summon the defendant to answer the hill' or action. The date of the writ is prima facie evidence of the time of its issuance. When the hill or declaration is filed in the suit or action, it relates hack to the issuance of the writ. (p. 533). 1</p> <p>2. Trust Deed — Creditor—Judgment.</p> <p>J. W. C. executed a deed of trust, bearing date on the 31st day of May, 1897, to secure the payment of an alleged debt to his brother. On the 15th day of June, 1897, G. M. Co., a creditor of J. W. C., commenced its suit; and, at the August rules following, filed its bill against J. W. C. and others, to set aside the deed of trust as fraudulent, and to subject the property thereby conveyed to the payment of its demand. On the 21st day of June, 1897, B .B. recovered a judgment against J. W. C.; and on the 7h day of July, 1897, commenced his suit; and, at July rules of the same year, filed his bill against J. W. C., and others, for the purpose aforesaid. The deed of trust was set aside by decree entered in both suits, heard together. Held,:. The demand of G. M. Co. has priority over the judgment in favor of B. B.; and is entitled to be paid in full out of the proceeds of the sale of the property, before the judgment of B. B. or any part thereof shall be paid. (p. 536).</p> <p>3. Commissioner — Interlocutory Decree.</p> <p>Where a commissioner to whom a cause has been referred by an interlocutory decree, in his regular proceedings to adjust, settle and report the matters so referred, takes the depositions of witnesses to enable him to act upon the subject, his general notice of such proceedings is sufficient, without a special notice from him or the adverse party that such depositions will be taken, (p. 526).</p>

<p>1. Deed — Undue Influence.</p> <p>To 'set aside a deed for undue influence, it must be shown to the satisfaction of the court that the grantor, at the time of the execution of the deed, had no free will, but stood in vinculis; or it must appear that the undue influence was such as to destroy free agency, and substitute the will of another for that of the person nominally acting. Delaplain v. Grubb, 44 W. Va. 612. Held:. In this case there is no such proof, (p. 543).</p>

<p>1. Bill — Agreement—Contract.</p> <p>Plaintiff, in its bill, alleges an agreement, and demands specific performance. Defendant sets up in bis answer, a reservation, in tbe contract, and proves that the contract alleged, together with the reservation, is the original and true agreement made by the parties. Held: The court will compel specific performance of the contract as thus established by defendant, (p. 558).</p> <p>2. Dead — Contract—Right of Way- — Reservation.</p> <p>Plaintiff’s predecessor, the S. Y.- R. R. Co., made a verbal contract with J. B. McG. for a right of way for its railroad through' the land of the latter. J. B. McG. died intestate without executing a deed far the right of way. His land, by descent and purchase, was acquired by J. W. McG. Plaintiff after-wards filed its bill against J. W. McG. and others, the then owners of the land1, alleging the contract of 'its predecessor for the right of way; its full compliance with all of the terms thereof; its ownership of the right of way; and demand the spe-cifiie performance of said contract; and a deed for said right of way, without reservation. Defendant set up' in his answer that J. B. McG. had executed and delivered to the plaintiff’s predecessor company, a deed for the right of way, but with a reservation therein of an .undergrade crossing across said right of way. Defendant failed to establish the execution and delivery of said deed as claimed by him; but the facts and circumstances of the case satisfactorily prove the said reservation to be a part of the original and true agreement between the parties, for the right of way. JETelcS:. The contract alleged in the bill subject to the reservation as established by the proof, will be especially enforced, (p. 559).</p>

<p>1. InfantI — Decree—B'ill.</p> <p>An infant, under the statute allowing him to show cause against a decree, may do so hy original hill, although the cause alleged is error of law apparent on the face of the decree. (p. 566).</p> <p>2. Deed — Cancellation—Decree.</p> <p>When such hill seeks relief, hy way of cancellation of a deed and an accounting for waste, rents, issues and profits, consequent upon the reversal of the decree, and fully sets forth the defects in the decree, and incorporates the pleadings, decrees and orders as exhibits, the suit is not collateral, hut directly attacks the erroneous decree, and the record of the ’cause in which it was pronounced may be introduced upon the hearing as evidence, (p. 563).</p> <p>3. Bill — Decree.</p> <p>Where the allegations of a bill are sufficient to support a decree, and there is a prayer for general relief, and such decree is pronounced, it will stand, although not specifically prayed for in the bill. (p. 564).</p> <p>4. Infant — Decree—Laches.</p> <p>Where an infant proceeds promptly upon attaining his majority, to show cause against a decree, the defense of laches cannot he made. (p. 565).</p> <p>5. Partition — Commissioners.</p> <p>Before there can be a sale of land in a partition suit, it must be ascertained and determined that partition thereof cannot conveniently be made, and the usual and preferable mode of establishing such fact is by a report of commissioners,' so stating, and setting forth the facts from which it appears, (p. 566).</p> <p>6. Partition Suit — Infants-—Guardian.</p> <p>Where, in a partition suit, there is an allotment of part of the land and sale of the residue, the allotted part and the proceeds of the part sold must each be divided among all the co-tenants of the entire subject, in the absence of a consent decree, when adults only are interested, and it is error to sell the. undivided interests of infants in such suit, when there is no proceeding therein by their guardian for such sale in the manner prescribed therefor by law. (p. 567).</p> <p>7. Infant — Beal Estate — Sale-—Title—Decree.</p> <p>A party to. a suit, moving the sale therein of an infant’s real estate, and purchasing the same under a decree therein made, is not protected by section 8 of chapter 132 of the Code, and, on reversal of the decree, his title falls, (p. 568).</p> <p>8. Decree — Court I — Jurisdiction.</p> <p>A decree entered in a cause, in which all interested parties are before the court, and upon a bill upon which such decree would have-been proper, under certain conditions which might have been shown by proof, upon the allegations of the bill, to exist, is not void for want of jurisdiction, however erroneous it may be. (p. 568).</p> <p>9. Limitations of Action — Constitution.</p> <p>The act, passed by the legislature, March 25, 1873, entitled “An act concerning the limitation oí actions in certain cases,” is void for want of expression of its object in the title thereof, as required by the first clause of section 30 of article 6 of the Constitution, providing that, “No act hereafter passed, shall embrace more than one object, and that shall be expressed in its title.” (p. 569).</p> <p>10. Actions — Suits.</p> <p>If said act could be held free from the fatal defect of unconstitutionality, it would be within the repealing clause of the act of March 16, 1882, constituting chapter 104 of the Code, and not available as a defense to any action or suit. (p. 573).</p> <p>11. Tenants in Common — Go-tenants—Suits—Error.</p> <p>Tenants in common, committing waste against a co-tenant, are wrong doers, and may be sued on account thereof jointly or separately, and when sued jointly, it is not error to dismiss the cause as to one of them, on motion of the plaintiff, and over the objection of the other, (p. 574).</p> <p>12. Dower — Assignment—Oil Wells.</p> <p>Where, before assignment of dower, one claiming by purchase from certain heirs and the widow, drills oil wells upon the land and extracts large quantities of oil therefrom, without having obtained the consent of his co-tenant to such development; and such non-consenting co-tenant brings his suit for an acocunting, it is error to decree to him his entire interest in the oil produced and thereafter to be produced, free from any charge on account of the dower interest, (p. 576).</p> <p>13. Dower — Court—Receiver.</p> <p>In such case, the holder of the dower interest is entitled to the interest on one-third of the proceeds of the oil going to the non-consenting co-tenant, until the death of the dowress, and until that date the fund upon which such interest is paid remains under the control of the court through its general receiver. (p. 578).</p> <p>14. Infant — Erroneous Decree — Guardian.</p> <p>An infant, whose land has been sold under an erroneous decree, and the purchase money paid to his guardian, and who sues for reversal of the decree and cancellation of the deed, must tender with his bill, the purchase money, or offer therein to repay it. (p. 579).</p>

<p>. Writ of error and supersedeas to Circuit Court, Summers County.</p> <p>Action by Powers-Taylor Drug Company against E. F. Eaul-coner, ei als. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and supersedeas from Circuit Court, Bandolph County.</p> <p>Action by.Buhl & Co. against M. L. Nestor and others. Judgment for plaintiff and defendants appeal.</p>

<p>Appeal and supersedeas from Circuit Court, Wood County.</p> <p>Action by Sallie P. Echols against W. S. Tlacewell. Judgment for defendant and plaintiff appeals.</p>

Appeal and supersedeas from the Circuit Court;, Wetzel County. Action by C. B. McNeeley et ads., against the South Penn Oil Company. Judgment fox defendants and plaintiffs appeal. (a.) By deed 4th April/1873, Edgell conveyed to Nathan Higgins and Mary Higgins, his wife, a tract of one hundred acres of land.

Writ of error and supersedeas to the Circuit Court, Marshall County. Action by Moundsville, Benwood & Wheeling Railroad Company against Benjamin Wilson and J. W. Burchinal. Judgment for plaintiff and defendants bring error.

<p>1. Final Decree — Fraud.</p> <p>A final decree upon the merits, after answer filed, cannot be re-heard, reviewed or otherwise disturbed in the court below, after the end of the term at which it was pronounced, except for such matter as constitutes ground for a bill of review for error apparent in the decree, bill of review for newly discovered evidence, or an original bill to impeach it for sufficient cause, such as fraud in its procurement, (p. 657).</p> <p>2. Debt — Final Decree — Res Judicata.</p> <p>A person owing an usurious debt, who is a party to a suit in equity and fails to claim, by any form of pleading, the benefit of the statute against usury, before a final decree has been entered as to the amount of the debt, is thereafter barred by the principle of res judicata from setting up the defense of usury, (p. 659).</p> <p>3. Trust Deed — Creditors.</p> <p>A deed of trust conveying all the property of a debtor to a trustee for the benefit of his creditors works an appropriation of the property so conveyed for that purpose; and, as the defense of usury is personal to the debtor while he lives, the trustee in such deed of trust cannot interpose it. (p. 661).</p>

Writ of error and supersedeas from the Circuit Court, Kan-awha County. Action by Charleston Natural Gas Co. against Lowe & Butler, Trustees, el als. Judgment for defendants, and plaintiff brings error.

<p>1. Petitioner — Mandamus.</p> <p>Unless the petitioner shows a clear legal right to have the thing done of which he complains, mandamus will be denied, (p. 673).</p> <p>2. Syllabus Appkoved.</p> <p>The syllabus in the case of Phares v. Holt, or Marsliller v. Ward, decided at this term, approved, (p. 673).</p>