Volume 55 — West Virginia Reports

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill of review by tbe State of West Virginia, for Cassie C. Nuzum, against John C. McEldowney and others. Decree for defendants, and plaintiff appeals.</p>

<p>.Appeal from Circuit Court, Lewis County.</p> <p>Bill by Marie E. Law against Tibornas E. Law and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. INJUNCTION — Public Roads.</p> <p>An injunction is the proper remedy to prevent the location and establishment of a public road through private property, without prior compliance with the requirements of law. (p. 15).</p> <p>2. Roads — County Court- — Suit.</p> <p>In such case, it is not improper to join as defendants the county court or other tribunal, charged with the establishment and maintenance of public roads, the surveyor of roads of the proper road precinct, and the road contractor, (p. 17).</p> <p>3. INJUNCTION — 'Notice.</p> <p>Where a party has actual notice of an order of injunction, although it may not have been yet served, or be defectively served upon him, the order becomes operative on him from that time. (p. IS).</p>

<p>1. Contracts — Usury.</p> <p>Plaintiff, P. and wife, executed to defendant a bond as follows: “$1,500. Bristol, Tennessee, Dec. 1, 1891. On or before nine years from date we promise to pay the Holstein National Building and Loan Association, at its Home office, Bristol, Tennessee, fifteen hundred dollars, and a premium of $7.50 per month, together with interest on the sum of fifteen hundred dollars at the rate of six per cent per annum, payable monthly,” with an underwritten condition that said interest pn the $1,500, and the monthly premium of $7.50 and the monthly payments on the shares of stock and any fines assessed under the rules of said association, and taxes, Insurance, etc., as set out in the bond and mortgage securing said loan should be paid “until said stock becomes fully paid in and of the value of $100 per share, then it is understood that upon the surrender of said stock to said association this note shall be deemed fully paid and cancelled.” Held: That under said contract the obligor was bound to pay the premium of $7.50 per month until the maturity of the stock upon which the loan was made. Held, further: That the time of the maturity of the stock being indefinite and uncertain rendered the amount of the premiums to .be paid uncertain and thereby the monthly payments of premium were required' to be paid for an indefinite period and so rendered illegal and making' the contract usurious, (p. 27).</p> <p>2. Legal Inteeest.</p> <p>P. haying subscribed for twenty shares of the stock of defendant association for the sole purpose of borrowing the par value thereof, $2,000, and not to hold any part of said stock as investment stock, and the association having refused to loan P. on more than fifteen of said shares $1,500, it was not error to apply all payments of dues made by said P. on the twenty shares of stock on account of the debt of $1,500, and its legal interest, (p. 28).</p>

<p>Appeal from Circuit Court, Lewis County.</p> <p>Bill by William Ratliff against Martha M. Sommers and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Forest Kyer was convicted of gaining, and brings error.</p>

<p>1. Land — Power to Sett — Option.</p> <p>The written power to sell land does not include the power to option unless so expressed, (p. 53).</p> <p>2. Land — Option not Binding on Land Owners.</p> <p>An option, not authorized by a written power to sell, is not binding on the land owners or a co-agent under such opwer to sell without express ratification, (p. 54).</p> <p>3. Land — Oo-Agent—Purchase.</p> <p>A co-agent under a power to sell, is not bound by an unauthorized option, not given or ratified by himself, and if he purchase th'e land for himself, he cannot be held as a trustee for the claimant under such option, (p. 54).</p> <p>4. Land — Option when Revocable.</p> <p>An option given for a valuable money consideration cannot be revoked until the time limit therein has expired. If such option is without consideration, it may he withdrawn or revoked at any time before acceptance, (p. 54).</p> <p>5. Land — Option when Enforceable.</p> <p>An option given without authority while not binding on the land owners who did not authorize or ratify it, is binding and enforceable against the optioner whose land is included therein. (P. 55).</p> <p>6. Land — Purchaser for Value without Notice.</p> <p>A person who has taken an option upon land, but has not ■ paid the purchase money in full, is not a purchaser for value without notice, (p. 55).</p>

<p>1. Contbact — Release.</p> <p>A release of one of two joint contractors releases both. (p. 59).</p> <p>2. Compromise — Contract.</p> <p>A compromise of a controversy is a valuable consideration to sustain a contract, (p. 60).</p> <p>3 Contract.</p> <p>Consideration of a contract. What is valuable, (p. 60).</p> <p>4. Contract — Fraud.</p> <p>A person who at the time of the execution of a release knows, or by inquiry might know, the exact nature of the writing, cannot invoke his own neglect to. ascertain its nature to impeach it, unless imposed on and misled by fraud, (p. 62.)</p> <p>5. Release.</p> <p>A release of a mere personal obligation is not required to be recorded, (p. 62).</p> <p>6. Certificate — Recorded Instrument.</p> <p>The certificate of acknowledgment of a writing not required by law to be recorded is no evidence of its execution, and is not admissible as such. (p.-62).</p>

<p>1. HUSBAND AND WlEE.</p> <p>A husband living with his wife in a house which is on her separate estate land has no insurable interest therein, (p. 65).</p> <p>2. Insubance — Fraud.</p> <p>A false statement by an applicant for insurance to the agent that such applicant is sole and absolute owner of the house, the agent not knowing the contrary, avoids the policy, (p. 66).</p> <p>3. Insurance.</p> <p>An insurance policy provides that “if the title or interest of assured is less than the entire, absolute, unconditional, unin-cumbered, fee simple ownership” the insurance company shall not be hable under the policy. Such provision is reasonable, and if the insured has not such title or interest, no recovery can be had on the policy, (p. 68).</p>

<p>1.Fraudulent Conveyance.</p> <p>"Where a conveyance has been made with intent to hinder, delay and defraud creditors of the grantor, all the estate of the grantor, subject to the rights of creditors, passes by the deed to the grantee, and equity will not, at the suit of the grantor or any person claiming under him, as purchaser from him after such conveyance, set the deed aside, (p. 71).</p> <p>2. Fraudulent Conveyance.</p> <p>No interest or estate in land so conveyed remains in the fraudulent grantor for his benefit, which can form the basis of such a contract of sale by him, as will create an equity respecting the land. (p. 71).</p> <p>3. Fraudulent Conveyance.</p> <p>A purchaser from the grantee in such deed is not prejudiced by prior notice of a pretended contract of sale of the land so conveyed, made between such fraudulent grantor and a third person, (p. 72.)</p> <p>4.Fraudulent Conveyance.</p> <p>A voluntary or fraudulent conveyance is binding upon the parties thereto, (p. 72).</p> <p>5. FRAUDULENT CONVEYANCE.</p> <p>Equity will not aid any person in an effort to profit by his own fraudulent act. (p. 72).</p> <p>6. Fraudulent Conveyance.</p> <p>One who conveys land to another voluntarily and without consideration cannot set up a parol trust in the land in his favor, unless the circumstances he such as to .bring the case within the rule stated in point 3 of the syllabus in Troll v. Garter, 15 W. Va. 567. (p. 73.)</p> <p>7. Fraudulent Conveyance.</p> <p>One who claims such a trust vests no equity affecting the land by his contract for the sale of it to another, (p. 73).</p> <p>8. Purchasing Parties.</p> <p>Where two persons are attempting to purchase the same property, neither is bound by any notice of the acts of the other, until an enforcible contract is made with one of them, (p. 74).</p> <p>9. Fraudulent Conveyance — Bill.</p> <p>When a bill in equity sets up a claim that is unenforceable, and the evidence offered in csupport does not prove a good cause of action, and the relief asked has been decreed by the court below, the appellate court will, on appeal, reverse the decree and dismiss the bill, although no demurrer was interposed in the lower court, (p. 74).</p>

<p>1. INSTRUCTIONS — Error.</p> <p>Upon the trial of H. for murder, the court gave the jury the following instruction: The court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act. And if the jury believe from the evidence that H. with a deadly weapon in his possession, without any or upon very slight provocation, gave to R. a mortal wound, the said H. is primes facie guilty of willful, deliberate and premeditated killing; and the necessity rests upon H. of showing extenuating circumstances, as they appear from the case made by the State, H. is guilty of murder in the first degree. Held-: That the giving of said instruction was error, (p. 80).</p> <p>2. Murder — Criminal Law.</p> <p>Where a statute establishes degrees of the crime of murder, and provides that all willful, deliberate and premeditated killing, shall he murder in the first degree, evidence that the accused was intoxicated at the time of the killing, is competent for the consideration of the jury, upon the question whether the accused was in such condition of mind as to he capable of deliberation and premeditation, tp. 83).</p> <p>3. INSTRUCTIONS.</p> <p>It is not error to refuse an instruction, not especially adapted to, nor based upon, the facts of the case, which the evidence fairly tends to prove, (p. 85).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Elizabeth Williams, administratrix, against the Belmont Coal & Coke Company. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Real Property — Sale.</p> <p>M. on behalf of himself and P., joint owners of a tract of laid, by contract under seal — but which contract was not authorized by P. — sold the same to A. receiving from A. on account of the cash payment $250, and $50, and A. also paid out for surveying the land for M. $255;. afterwards at the suggestion and request of M. the contract, was mutually, orally, - rescinded, M. agreeing to repay to A. the said three sums so paid by A., with interest, M. acting upon such oraP-rescission resold the land to other parties. Held, That A. -could recover in assumpsit from M. the money so paid by him. (p. 107).</p> <p>2. Contract.</p> <p>While the general rule is that a contract must be discharged in the same form as that in which it was made, yet the rule does not apply where a parol contract rescinding or modifying a contract under seal has been acted upon, so that it would be inequitable to hold the parties to their original contract, (p. 107).</p>

<p>1. Intoxicating Liquors — Illegal Sale.</p> <p>Under section 18, chapter 32, Code, an allegation in a hill in equity charging that intoxicating liquors are sold and vended by the defendant, at a certain described house, building or place “contrary to law” is insufficient for uncertainty. It should further allege in what manner such liquors are sold and vended contrary to law; as, without having a State license therefor, (p. 111).</p> <p>2. Social and Literary Club — Wlvisfoy Sold.</p> <p>A corporation claiming to be a social and literary club, which requires no qualifications for membership except the payment of an initiation fee of one dollar, for which' fee there is issued to the applicant a membership card and a coupon with twenty tickets attached each, “good for five cents for games and supplies” which tickets are received by the general manager of the club in exchange for drinks, one ticket for a glass of beer, and two tickets for a drink of whisky, and the members are permitted to buy such coupons with five, ten, or twenty tickets attached at twenty-five cents, fifty cents, and one dollar each, respectively, to be so exchanged for such drinks at such club. Held: To be a fraudulent device to evade the revenue laws of the State, and the house, building or place where such sales are made will be held, taken and deemed to be a common and public nuisance, and will be abated as such, (p. 113).</p>

<p>1. ContRaot — Usury.</p> <p>All contracts and assurances made directly or indirectly for the loan or forbearance of money or other thing at. a greater rate of interest than six per cent, except where such greater rate is allowed by law, are void as to any excess of interest agreed to be paid above that rate. (p. 117).</p> <p>2. Usury.</p> <p>When usurious payments of interest are made upon a debt the excess of interest so paid above the legal rate shall be tapplied as partial payments on the principal at the date of such payments, respectively, (p. 117).</p> <p>3. Usury.</p> <p>After usurious interest has been paid the s.ame may be recovered back either by action at law for money had and received, or by suit in equity, (p. 118).</p> <p>4. Usury.</p> <p>In such action or suit the measure of recovery is the residue after crediting all payments of usury as partial payments upon the principal, (p. 119).</p>

<p>Í. Parties — Beneficiaries necessary io MU in equity.</p> <p>Where a trustee brings a suit in equity for the benefit of those he represents, the latter ordinarily are necessary parties to such suit. (p. 123).</p> <p>2. Parties — Go-tenants.</p> <p>In a conti'oversy between two sets of lessees under two several leases, co-tenants interested under either one or both . such leases should be made parties to a bill in equity filed to settle such controversy, (p. 124).</p> <p>3. Parties — Lessen'.</p> <p>The lessor or landlord is a necessary party to a bill in chancery filed by subsequent lessees to enforce the forfeiture of, set aside and annul a prior lease covering the same subject matter, (p. 125).</p>

<p>1. Notice — Decree.</p> <p>Section 5, chapter 134, Code, 1899, in requiring “reasonable notice to the opposite party” of a motion to reverse a decree upon -a bill taken for confessed, demands such notice to any party who has an interest in the maintenance of the decree whether plaintiff or defendant, (p. 128).</p> <p>2. Appeal.</p> <p>An appeal lies from a decree reversing a decree upon a motion under Code 1899, chapter 134, without any motion to reverse being first made in the circuit court, (p. 129).</p> <p>3. Appeal.</p> <p>There can he no appeal from a decree against a party on a bill taken for confessed as to him, until a motion to reverse shall he first made in the circuit court. If such an appeal is taken without such motion it will be dismissed as improvidently granted without considering the merits of the appeal. . (p. 129).</p>

<p>1. INSTRUCTIONS — Hew Trial.</p> <p>An instruction embodying an abstract proposition of law, without, in any way connecting it with the evidence or indicating what facts the jury must find from the evidence, in order to make it applicable to the ease, ought not to be given; and, if the court can see that such an instruction has confused or ■misled the jury, the judgment resulting from the verdict will he reversed, (p. 144).</p> <p>2. Instruction — Evidence.</p> <p>An instruction, though correct in law, should be refused unless there is a basis for it in the evidence, and it is the province of the court to determine whether there is a foundation in the evidence for any particular instruction, (p. 145).</p> <p>, 3. Instruction — Error.</p> <p>"Where the plaintiff, in an action at law, fails to introduce any evidence at all to prove a fact essential to his recovery, it is error for the court to give an instruction which submits to the jury the question of the existence of such fact. (p. 145).</p> <p>4. Contract — Agent"</p> <p>Under a special contract between an owner of real estate and an agent for the sale thereof, on commission, at a price agreed upon, the agent cannot recover his commission without proving that he has actually made a sale at the price stipulated, unless it appear that his principal has wrongfully prevented the making of a sale at such price which would have been made hut. for his interference, or has waived the strict performance of the contract, (p. 146).</p>

<p>Appeal from Circuit Court, Tucker ■ County.</p> <p>Bill by Eiley Harper against the Middle States Loan, Building & Construction Company. Decree for plaintiff, and defendant appeals.</p>

<p>1. EXECUTOR-Bill.</p> <p>The executors oE the last will of G. filed their hill, alleging that their testator had bequeathed specific legacies to his wife and children, to be paid out of his personal property, and a residuary legacy to his grand daughter, to-wit, the residue of his personal and the whole of his real estate; that testator, H., and others were the sureties of A. on his official bond as sheriff; that a judgment for a large sum of money was recovered against A. as principal, and H. and others as surviving obligors of themselves, and of G and others, on said bond; that H. was compelled tc pay said judgment; that H. c’aimed contribution from their testator’s estate) for one-half of the said judgment paid by him as aforesaid; that the legatees were clamoring for their legacies and threatening plaintiffs with suits therefor; that testator’s estate was not liable for any part of said claim of H., that, plaintiffs were in doubt as to their duties in the premises; and praying that the validity or invalidity of said claim of H. be fixed and determined by the court; and that their executorial accounts be settled. Held, That the bill is insufficient to warrant the interpositon of a court of equity, (p. 167).</p> <p>2. Executor — Equity.</p> <p>The executor or administrator may apply, by a proper proceeding to a court of equity for its aid and relief, when he , finds the affairs of his testator, or intestate, so much involved that he cannot safely administer the estate except under the direction of the court. In such case, it is competent for him to institute a suit against the creditors of the estate generally for the purpose of having all of their claims adjusted, and a final decree settling the order and payment of the assets. The court, will also lend its aid and relief, in a proper case under such special circumstances as show that injustice will be done to the personal representative, or injury result to the estate, if such and relief be refused, (p. 165).</p>

<p>1. Valid Gift.</p> <p>W. D. C. being ill, and in the expectation of death, gave and delivered to J. E. C., his brother, a paper in the words and figures following, to-wit: “Sewell, W. Va., Aug. 26th, 1899. $1100.00. Eleven hundred dollars. Received of William Clay-tor for safe keeping. L. C. Claytor.” William Claytor mentioned in the receipt being said W. D. C. At the time of the gift and delivery of the receipt the donor said to the donee ■that he had a present for him (donee): that donor took the receipt from his trunk, and said to donee, “Here, I will give you this; here is a note, 'I have for $1100.00. I will make you ‘a present of this; take it, and go and draw the money on it;” that donor further told donee, not to let anybody else have it, 'his (donor’s) wife, or anybody else; that he did not want his wiit to have it; that he was going to the hospital and the way the disease worked on him, he didn’t think that he would get well, and further said, “I will give it (the receipt) to you before I go, so you will be sure to have it;” that, donor was then the owner of said money, which was at the time in the care and keeping of E. C. C.; that donor was on that day taken to the hospital, where he died one month thereafter as a result of his said illness; that two days before his death, at the hospital, donor asked another brother, did Ed. (meaning donee) have the note, (meaning the receipt) which he gave him, and being told that Ed. had the receipt, donor then said to tell him (Ed.) to be sure and keep it, * * * to go and get the money on it, that donee kept possession of said receipt continuously until after the death of donor; and that donor died without making any change in relation to the gift, and leaving donee surviving him. Held: That the acts and declarations of the donor constitute a valid gift of said money casua mortis, (p. 171).</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Bill by D. J. Cochran against George B. Cochran and others. Decree for plaintiff, and denfendant, George B. Cochran, appeals.</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Action by Eyland & Eankin against the Chesapeake & Ohio Eailway Company. Judgment for plaintiffs. Defendant brings error.</p>

<p>3. 'Right of Appeal — Surety entitled to when.</p> <p>A surety in an execution levied on the property of the principal debtor has such interest in the controversy over the ownership of such property, to which he is a party, as to entitle him to appeal from a judgment discharging such property from the lien of such execution, (p. 187).</p> <p>2. Deed fok Future Support — When Fraudulent in Law.</p> <p>Among others, a deed from a father to a daughter conveying her his property, contains the following stipulations: “The lurther consideration of this deed is that the party of the second part, shall not dispose of said property during the lifetime of the party of the first part, without the written consent of the party of the first part, and that the party of the second part will furnish to the party of the first part a comfortable and proper support and maintenance during his natural life.” Such stipulation renders such deed in law prima facie a nullity and void as to> existing creditors, and it cannot be sustained unless it is shown that the grantor retained a sufficient amount of property to satisfy his debts, (p. 190).</p>

<p>1. Declaration — When demurrable.</p> <p>A declaration purporting to be a declaration in trespass on fcbe case in assumpsit which fails to ayer any promise of payment on the part of the defendant is demurrable, (p. 196).</p> <p>2. Assompsit — Gist of Action.</p> <p>In assumpsit the gist of. the action is the promise of payment on the part, of the defendant., which must be clearly ayerred. (p. 196).</p> <p>3. Assumpsit — Promise of Payment.</p> <p>Such promise of payment may be either express or implied by law. Whether express or implied, the averment thereof may be in the same form or language, (p. 196).</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Bill by Smith Tillis against Mary A. D. Tillis. Decree for plaintiff, and defendant appeals.</p>

<p>1.- Elections' — Toll Boojcs — County Cleric.</p> <p>Poll-books of a special election under a special act of tlie Legislature deposited in the office of the clerk of a county-court are public papers or documents under sections 3 and 5 of chapter 1X7. Code, and the clerk is under duty to allow inspection of them under proper circumstances to a person interested in them, though such special act he unconstitutional, (p. 204).</p> <p>2. County Clerk — Public Records — Mandamus.</p> <p>Several persons who make common application to. a clerk of a county court for inspection of public records, and are refused it, if entitled to such, inspection, may unite in mandamus to compel such inspection, (p. 208).</p> <p>3. County Clerk — Records.</p> <p>A clerk of a county court has such interest as entitles him to refuse an inspection of records in his office when such inspection is not called for by law. (p. 209).</p> <p>4. Ministerial Officer — Unconstitutional Act.</p> <p>Ministerial Officer. Can he refuse to perform an act required by an unconstitutional statute before it has been judicially declared invalid? (p. 210).</p> <p>5. Mandamus — Interested Persons.</p> <p>A pecuniary interest in an individual in the act sought to be compelled by mandamus must exist to maintain it. (p. 210).</p> <p>6. Mandamus — Common Interest.</p> <p>One or more individuals may maintain mandamus to compel the doing of an act, in which the public at large, including them, have a common interest, (p. 211).</p> <p>7. Public Records.</p> <p>Inspection of records and papers in a county clerk’s office is not a right vested in every person or under all circumstances. The person asking it must have an interest in the record or paper of which inspection is sought and the inspection must be for legitimate purpose, (p. 212).</p> <p>8. Mandamus — Pub He Records — Interested Persons.</p> <p>Mandamus will not lie to compel inspection of records by a private individual for the sole purpose of learning evidence for the institution of criminal prosecution, (p. 214).</p>

<p>1. Syllabus Appeovbd.</p> <p>Syllabus in case of Kellam v. Sayre, 30 W. Va. 198, reaffirmed. (p. 223).</p> <p>2. Suit — Cost.</p> <p>In a suit in chancery erroneously brought by A. for the use of B. and B. not being a party to the suit an order of the circuit court directing the costs to be taxed against the beneficiary B. and not against A. is void as against B. and does not make him a' party to the suit. (p. 223).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Wm. James’ Sons & Co. against- Gott & Ball.' Judgment for plaintiffs. Defendants bring error.</p>

<p>Error to Circuit Court, Wood. County.</p> <p>Action by C. P. Dorr against J. N. Camden. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Writ of Error — Appellate Court — Judgment.</p> <p>When, pending a writ of error, without fault of a party, an event occurs rendering it impossible for the appellate court, if it should decide in favor of the plaintiff, to grant him substantial relief, the Court will not decide the merits and give formal judgment, but will dismiss the writ of error, without awarding costs, (p. 237).</p> <p>2. Writ of Error — Office—Term,.</p> <p>When a writ of error involves a contest as to an office, and while it is pending the term of the office ends, the writ of error will he dismissed without decision of the case, and ■ without judgment as to costs, (p. 238).</p>

<p>1. Fife Insurance Co. — Evidence.</p> <p>In an action on fire insurance policy under the declaration prescribed by section 61, chapter 125, Code, 18°9, if the defense is because of failure of the insured to comply with, or his violation of any clause, condition or warranty of the policy, though a' precedent condition to recovery, no evidence is re-auired of the plaintiff of his compliance therewith, unless the defendant file the statement required by section 64 of said chapter, specifying the clause, condition or warranty not kept or violated. When such statement of defense is filed the burden of proof to show compliance with the clause, condition or warranty specified in it, if a condition precedent to recovery, is upon the plaintiff. Point 15 of Schwarz'bach v. Pro. Union, 25 W. Va. 622, overruled, (p. 240).</p> <p>2. Insurance Co. — Declaration—Evidence.</p> <p>A statement under code 1899, chapter 125, section 64, specifying a clause, condition or warranty of a policy of fire insurance not complied with or violated by the insured is not a plea governed by strict principles, but only a specification, and is not open to demurrer- for insufficiency. If too vague, evidence under it may be excluded, (p. 240).</p> <p>3. Insurance Polict — Warranty.</p> <p>A clause in a fire insurance policy binding the insured to furnish for examination books of account, bills, invoices and other vouchers is a promissory warranty and compliance with it, in' case of loss, is a condition' precedent to recovery, unless waived or compliance with it is impossible, (p. 241).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by the Henry C. Werner Company against A. L. Calhoun and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Mercer County:</p> <p>Action by Ernest Rorer against the Holston National Building and Loan Association. Decree for defendant, and plaintiff appeals.</p>

<p>1. INSURANCE Policy — Action.</p> <p>The defendant insurance company, in consideration of $75.00 premium, by its agent, C., issued and delivered its policy to S. D. W. for $2,500.00 as follows: $1,500.00 thereof on a building used for a hotel, office and other purposes, then owned by S. D. W. and $1,000.00, the residue, on liotel, office and kitchen furniture, loss, if any, under the first item of the policy, payable to B. as its interest might appear at the time of fire. The property was totally destroyed by fire. Held, That B. can-maintain its action in its own name upon said policy against the company for said $1,500.00, (p. 266).</p> <p>2. Insurance Policy — Forfeiture.</p> <p>Where an insurance policy stipulates that the entire policy, unless otherwise provided by agreement, endorsed thereon, or added thereto, shall be void, if any change, other than by the death of the insured, shall take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process,, judgment, or voluntary act of the insured, or otherwise, and-the insured, after ue policy is issued and delivered to him by the company, without any agreement, or consent' of the company endorsed on said policy, or addea thereto', arid withdiit the consent of the company in any other way 'obtained by him, voluntarily conveys by deed, the insured property to another, such conveyance and change of title of the insured property, forfeits the policy, with the right to recover thpijeon for loss- or damage to the property, (p. 271).</p> <p>3. Insurance — Agent•—Waiver. . ,</p> <p>S. D. W., after he had received the policy sued on, conveyed the insured property by deed to E. D. W., and B. T>. W., after such conveyance to him, made and delivered his notes, payable to C. (who, as the agent of the company; issued the policy- to S. D. W.,) in payment of the premium expressed in the policy, and afterwards E. D. W. paid the said notes to C., but without the knowledge, consent or ratification of the company. Held, That the acts of C., in receiving said notes and collecting the same in payment of the said premium, did' not constitute a waiver by the company of the forfeiture of said policy as aforesaid. (p. 273).</p> <p>4. ’ Insuranc Policy.</p> <p>Chapter 33 of the Acts of the Legislature of 1899, renders fire insurance companies, doing business in this State, liable in case of total loss by fire or otherwise, as stated in the policy, on any real estate insured by them for the whole amount of insurance stated in the policy of insurance, upon said real estate, (p. 276).</p>

’ Action by E. TV. Clark, trustee, and others, against the county court of Mercer county. Judgement for plaintiffs, and defendant brings error.

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by W. W. Van Winkle against the Continental Fire Insurance Company. Decree for plaintiff, and defendant appeals.</p>

<p>1. Demurrer. — Record—Order.</p> <p>A demurrer copied into -the record i)y the clerk, no order or decree of the court having been entered in the cause tendering or filing the same, nor in any manner recognizing it as tendered or filed, is not a part of the record and cannot he considered hy the Appellate Court, (p. 310).</p> <p>2. Usuey May be Averred nsr Assurance in General Terms.</p> <p>In a suit in equity to enforce a specific lien, to make the defense of usury the defendant may in his answer in general terms aver that the contract or assurance on which the proceeding is founded was for the payment of interest at a greater rate than is allowed by law. (p. 314).</p> <p>3. Buildtng and Loan Association. — Usury.</p> <p>In such suit where the plaintiff, a Building and Loan Association, was claiming a balance due it according to the terms of its contract, of $070.40, as of the 30th of November, 1899, and the defeudant hy his answer Bays that his payments as shown hy his pass book furnished hy plaintiff aggregated $639.70; that the association charged $4.00 per month interest on the $800.00 loan, and $4.00 a month premium! thereon, and $4.80 dues on the eight shares of stock upon which the loan was made and that on the first day of September, 1898, he only owed the plaintiff $317.65 with interest from that day; that from the 1st day ; of September, 1898, he made default in the payment of dues; interest, premiums and fines and has continued to do so- from that time to this; and further answered “that under the terms of said deed of trust, if default should be made, the whole debt should become due and a mere intotrest bearing land/' Held:: ■'Such answer did not raise the- question of usury. Held, further: 'That the defense of usury not being made by the defendant by 'his answer, the commissioner was not warranted in applying ,all ; payments made by defendant of interest, premium, dues and '•fines, on account of said loan of $800.00, and interest at the rate i of six per cent per annum, (p. 315).</p> <p>' 4. ' 'CJsxjey Must be Pleaded.</p> <p>In a suit brought directly against the defendant to enforce the collection of a demand the defense of usury must be pleaded either by special plea or answer, or it cannot he relied on at the hearing, (p. 315).</p> <p>;.5. Sale of Real Estate — Decree—Error.</p> <p>It is error to decree the sale of real estáte by a special com- - missioner in a cause without specifying therein the terms upon which the sale is to he made. (p. 316).</p>

<p>1. Exphess Trust. — Insufficient Evidence.</p> <p>To sustain an express trust by oral testimony, against an absolute deed, after a lapse of over thirty years, the grantee being dead and having exercised complete control over the property during his lifetime, the evidence must he full, clear and explicit, and not open to grave doubts, contradictions and circumstances of suspicion, (p. 318).</p> <p>2. Express Trust — Circuit Court’s Decree Final.</p> <p>When the circuit court has examined the testimony and found it insufficient to sustain an alleged verbal trust set up after a long lapse of time and the decease of the alleged trustee, this Court will not interfere with such finding unless it is plainly contrary to the competent evidence, (p. 319).</p>

<p>1. SUMMONS in Uniawfui. Detainer — When Amendable.</p> <p>A justice’s summons in a suit of unlawful detainer defective for an insufficient description of the property, may he amended on appeal to the circuit court when substantial justice will he promoted hy such amendment, (p. 322).</p> <p>2. Pt.eat)ikgs. — When Amendable.</p> <p>On appeal from a justice the case may be tried on such pleadings as will secure substantial justice between the parties whether such pleadings are made up in court or before the justice. The circuit court may amend- the pleadings to promote the ends of justice and secure a fair trial, (p. 322).</p> <p>3. Lease — Meaning of Terms Thereof.</p> <p>A lease which provides that the tenant may have the refusal of the premises from month to- mionth so- long as the tenant may desire to occupy the premises, is a grant of preference over other proposed tenants if the landlord continues to rent the . property. Such lease terminates at the end of each month, and no notice to quit is necessary. A demand for the possesion of the property is sufficient to prevent a renewal of the tenancy and give the landlord the right to sue for possession at the end of the current month, (p. 324).</p>

Action by S. A. Eowan, administrator, and others, against E. B. Chenoweth and others. Decree for plaintiffs, and defendants Yokum and Leonard appeal.

<p>Appeal from Circuit Court, Fayette County.</p> <p>Suit by W. W. Bragg against F. J. Wiseman and others. Decree for defendants, and plaintiff appeals.</p>

Action by John L. Eowa-n & Co. -against J. W. Hull. From a judgment of the circuit court affirming a judgment for plaintiffs on,appeal from a justice, defendant brings error.

<p>1. INSURANCE Agent — Contract—Laches.</p> <p>An insurance company, establishing a local agency, is responsible to the parties with whom the agent transacts business for his acts and declarations within the scope of his employment, and to the extent of the authority apparently conferred upon him by the company, and a limitation upon such apparent .authority, not communicated to the insured before he acted upon the representations or conduct of the agent, will not relieve the company from liability, unless, after discovery of the want of authority in the agent, the insured has precluded himself from the assertion of his rights by laches. (By three judges.) (pp. 352, 353).</p> <p>2. INSURANCE Company. — Liability of.</p> <p>When an insurance agent, entrusted with blank policies and authorised -to fill up, countersign and deliver them, is correctly informed, by the person whose property he undertakes to insure, as to the state of the title and other facts material to and affecting the inception of the contract, so far as inquiry is made respecting them, and takes no written application for the insurance, and then issues a policy embodying, as warranties therein, facts different from those which were given to him by the insured, the company is estopped from defending a claim for lass under the policy on the ground of such false recitals, unless it is shown that the insured has prior-'or contemporaneous notice of want of authority in the agent to waive conditions. (By three judges.) (p. 357).</p> <p>3. Insurance Co. — Contract.</p> <p>A contract in writing is presumed to be the embodiment of an antecedent verbal agreement, and, upon clear and full proof, that the person who undertook the preparation of it has, by mistake or fraud, written the contract different from what it was as made by the parties, it may be reformed in equity, and where suen departure occurs in a policy of insurance prepared by an agent of the company, it raises an equitable estoppel against Lhe company which may be effectually asserted by the insured in a court of law, unless he had notice of want of authority in the agent to waive "the conditions at all or except in a specific manner. (By three judges.) (p. 359).</p> <p>4. Insurance Policy. — Contract.</p> <p>A clause in a policy of insuranpe so limiting the authority of the agent is not notice to the insured of the agent’s want of power to hind his principal in respect to transactions had between them before the policy was delivered, such as will prevent a reformation of the contract at the instance of the insured, or preclude him from relying upon a waiver of conditions hy the agent, made prior to the issuance of the policy. (By three judges.) (p. 361).</p> <p>5. Insurance Policy. — Laches.</p> <p>Failure to read a policy of insurance within a short time after its delivery is not such neglect or laches as will preclude the insured from having a reformation of it or deprive him of the benefit of a waiver hy the company through its agent, unless some fact was known to him sufficient to put him on inquiry as to whether it had been correctly written or contained a limitation upon the powers of the agent (By three judges.) (p. 361).</p> <p>6. Insurance Policy — A gent.</p> <p>Restrictions inserted in a policy of insurance upon the power of the .agent to waive any conditions except in a particular manner, as by indorsing the waiver on the policy, do not apply to those conditions which relate to the inception of the contract. (By three judges.) (p. 363).</p> <p>7. Insurance Policy. — Agent—Limitation.</p> <p>As to promissory warranties, conditions for the violation of which the policy is rendered non-effective after it has become effective and operative, such limitation clause is not only notice to the insured of want of authority in the agent to waive them, but also a stipulation between the parties that the agent has not, and shall not have, any such power, (p. 365).</p> <p>8. Insurance Policy. — Sale of Property — Notice.</p> <p>Notice of sale of the insured property under a deed of trust, served upon the insured before the occurrence of the loss, precludes recovery when the policy contains a stipulation that, unless otherwise provided by agreement endorsed thereon or added thereto, it shall be void, “if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by. this policy by virtue of any mortgage or trust deed,” together with a clause inhibiting the agent from waiving such condition otherwise than by an agreement so endorsed or added, and no agreement waiving the condition as to commencement of foreclosure proceedings and notice of sale is so endorsed or added, unless the forfeiture is waived by the company or the agent under authority therefor conferred by the company, (p. 369.)</p> <p>9. Peomissoey Warrantr — Forfeiture.</p> <p>Forfeiture for breach of a promissory warranty is not waived by retention of the premium after notice thereof, (p. 367).</p> <p>10. Insurance Policy.</p> <p>Under such a policy having a slip attached thereto by the agent, saying among other things, “$-. Other Concurrent Insurance permitted,” additional insurance on the property will not prevent recovery for loss on the policy, (p. 366).</p> <p>11. Insurance Co. — Liability.</p> <p>Denial by an insurance company of its liability on other grounds, within the time allowed for furnishing preliminary proofs of loss, is in law a waiver of the conditions of the policy requiring such proofs, (p. 366).</p> <p>12. Insurance Policy. — Fraud.</p> <p>When, by the provisions of a policy, it shall be void in case of fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, false swearing, in order to defeat recovery, must be intentional and done for the purpose of defrauding the insurer, (p. 365).</p>

<p>1. Teust. — Sill to Enforce — Parties.</p> <p>A trustee filed bis bill and amended bill to remove an alleged cloud lipón the title to trust property; to ascertain ánd fix the amount of the trust debt, which is controverted by the debtors; and to obtain a decree to sell the property for the amount of tie debt, when so ascertained and fixed. The court decreed a can-celation of the tax deed, alleged to be a cloud upon the title, ascertained and fixed the amount of the trust debt, and decreed that the trustee shall recover of the debtor the amount so ascertained and fixed by the court, and that, in default of payment', within the time prescribed, the trustee as special commissioner, shall sell the trust property. The administrator of the deceased trust creditor is not a party to the suit, although it appears therein that the trust creditor had died intestate, and that her administrator had been appointed and qualified as such before the institution of the suit. Held, That the decree is erroneous, because the same was made and entered in the absence of a' necessary party, and because the recovery in the name of the trustee is unwarranted, (pp. 378, 379).</p>

<p>Error to Circuit Court, Boone County.</p> <p>O. M. Ballard was convicted of assault with intent to kill and brings error.</p>

J. A. B. Bruce was indicted for selling Oleomargarine, and from conviction appealed to the circuit court for writ of error, and from a denial of the same be brings error.

<p>1. Assault With Intent to Kill — Instructions.</p> <p>Upon the trial of an indictment for unlawful and malicious shooting with intent to maim, disfigure, disable and kill, it is error to instruct the jury that if they believe there was a quarrel between the accused and F. and that both were in fault, and that a combat as the result of the quarrel, took place and the accused shot and wounded F. “In order to reduce the offense from malicious to unlawful shooting, two things must appear from the evidence and circumstances of the case; first, that before the shot was fired and the wound inflicted, the accused declined further combat and retreated as far as he could with safety; and, secondly, that he necessarily shot F. in order to preserve his own life, or to protetet himself- from great bodily harm.” (pp. 390, 391).</p>

<p>1. Parties to Suit in Equity — Sow Made.</p> <p>A person cannot be made a party to' a bill by merely Inserting bis name in tbe caption thereof, but the bill must contain some allegation showing such person’s interest or claim to interest in the subject matter in conrtoversy. (p. 394).</p> <p>2. Bin in Equity. — When Demurrable.</p> <p>A bill which makes a person a party in the caption thereof but contains no allega!ion showing such person’s interest or claim to interest in the subject matter in controversy, is de-murrable. (p. 394).</p> <p>3. Decree. — When Appealable.</p> <p>If the circuit court overrules such demurrer and grants the relief asked in such bill as to the subject1 matter in controversy without having such nominal party properly impleaded as to such subject matter, although other pleadings in the cause show that such nominal party is claiming the whole of such property, such nominal party may appeal from such decree and have the same reversed, (p. 393).</p>

<p>Error to Circuit Court, Baleigli County.</p> <p>Action by Leon Barrett against the Raleigh Coal and Coke Company. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Elections — Ballots.</p> <p>Two of four columns on a ballot sheet are defaced; the republican column is not defaced; the democratic is defaced by broken lines as to all its offices and candidates except two, and their names are skipped by the lines and thus left on that ballot, but their names are written in the republican column for the same offices for which they stand in the democratic-column. The republican ballot only has been voted. The-voter has not voted two ballots, (p. 406).</p> <p>2. Elections — Ballots.</p> <p>Though a candidate’s name is written in the space above the office on a ballot, it Will be held a vote for him for the office below his name where the printed name for that office is-erased and that above the written name is not erased, (p. 407).</p> <p>3. Elections — Ballots.</p> <p>The provision in code 1899, chapter 3, section 34, that where-a name is substituted for one on a ballot it must be written in the space below the printed name, is directory. Though the-name is not there written, the vote will be counted for the written name for the office for which it is plainly intended, (p. 408).</p> <p>4. Ballot.</p> <p>Distinguishing marks on a ballot will not cause its exclusion from the count, (p. 410).</p> <p>5. Mabked Ballot.</p> <p>Though lines through the heading of a ballot or through the-ballot are not used, still if other marks of cancellation are-used, and they plainly indicate that the ballot has not been voted, the ballot is effectually defaced, and can not be counted, (p. 411).</p> <p>,6. Makked Ballot.</p> <p>Though defacing lines do not pass entirely through a ballot or its heading, yet if it is manifest that the voter did not intend to vote that ballot, the defacement is sufficient, (p. 411).</p> <p>7. Marked Ballot.</p> <p>Defacing marks to cancel a ballot must bo within the ballot column or its heading. Words only above the heading or elsewhere outside the ballot, such as “I vote this ticket,” do not select that 'ballot and cancel the others, (p. 412).</p> <p>S. Marked Ballot.</p> <p>A name is written' in the space between two offices, and the printed names of the candidates are not erased. The ballot counts for the office above the written name and for that name, not for the candidate for the office below. It would be otherwise if the printed name of the candidate. for the office below were erased, (p. 413).</p> <p>9. Marked Ballot.</p> <p>A ballot from which some of the offices and names of candidates for them have been cut entirely out with a knife, instead of being erased with a pen or pencil, is a good ballot for the ' offices and candidates left in it. The provision of the statute requiring erasure with pen or pencil is directory, (p. 414).</p>

<p>Appeal from Circuit Court, Randolph. County.</p> <p>Action by J. W. Munson against tbe German-American Fire Insurance Company. Decree for plaintiff, and defendant appeals.</p>

Bill by J. M. Anderson, trustee, against Davis and Ould and others. From the decree, plaintiff and defendant Huff., Andrews and Thomas Company appeal.

<p>1. AebitRatioN — Submission—Procedure.</p> <p>An award of arbitrators, made under a submission entered .into- between tlie sole defendant and one of two co-plaintiffs-in an action of assumpsit, brought for the recovery of the debt due to the plaintiffs jointly, for the determination of the matter in controversy in the action, whereby it was further agreed that the award should be entered as the judgment of the court, is neither void nor voidable merely because of the failure of the other party to unite in the submission nor because the-umpire failed to append the word “umpir'e” to his. signature, and affixed in lieu thereof the word “arbitrator.” (p. 439).</p> <p>2. Award — Parties.</p> <p>An award so made is binding upon the parties to the submission, though, it does not bind those who are not parties-to it. (p. 440).</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Action by Samuel Starr and others against L. A. Sampselle' and others. Decree lor defendants, and plaintiffs appeal.</p>

<p>1. Perjueed Testimony — Former Trial.</p> <p>As a general rule a Dill in equity based on perjured testimony, given at the law trial, or on false or forged documentary-evidence introduced there, will not be entertained; and the allegation that the complainant was surprised by the perjury or forged 'evidence does not change the rule. (p. 464).</p> <p>2. Trial Voluntarily — Error—New Trial.</p> <p>It is a rule of law that a party voluntarily going to trial does so at his peril; and he cannot have a new trial merely to give him an opportunity of impeaching the testimony of a witness of which he was apprised, or could have been apprised beforehand, and of the very purpose for which the witness was to be called, (p. 464).</p> <p>3. Injunction — New Trial — New Evidence.</p> <p>Where a complainant asks an injunction against a judgment, alleging in his bill that he is now able to prove the matter of his plea or defense of the action at law, which he was unable to prove at the trial, but does not allege some reason founded in fraud, accident, mistake or some adventitious circumstance, beyond his control, as the cause of such failure of proof, the injunction should not be allowed, (p. 465).</p> <p>4. Syllabus Approved.</p> <p>Points 2, 3 and 4 of Syllabus Bloss v. Null, 27 W. Va. 503, approved and applied, (p. 463).</p>

<p>Error to Circuit Court, Mingo county.</p> <p>Action by John Turk against S. Shein. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Indictment — Order of Dismissal.</p> <p>An order retiring an indictment for felony from tire trial docket of a court is equivalent to the dismissal thereof, and the same may not thereafterwards on motion of the State be restored to the docket for trial, (p. 475.)</p> <p>2. Indictment — Discharge of the Accused.</p> <p>If an indictment has been improperly placed on the trial docket and the accused has been arrested on a capias to answer the same, he may be discharged therefrom on a writ of habeas corpus, (p. 475.)</p>

Proceedings by Gibby Woods against Joel Cottrell, Justice, and others, for writ of prohibition. Judgment for defendants, and plaintiff brings error.

<p>Error to Circuit Court, Raleigb Count}'.</p> <p>. Action by L. W. Malsby against the Lanark Fuel Company. Judgment for plaintiff:, and- defendant brings error.</p>

<p>Error to Circuit Court,. McDowell County.</p> <p>Proceeding between tlie National Cash Eegister Company -and the Hnion Bargain House. From the judgment the National Cash Eegister Company brings error.</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Bill by William B. Colston, administrator and others against Maria E. Janney and others. Decree for plaintiffs, and defendant, Victor D. Miller, appeals.</p>

<p>1. CntouiT COURT — Jurisdiction—Election.</p> <p>Circuit courts have no original jurisdiction of election contests or re-counts, nor authority to prevent, by writ of prohibition, a person who claims to have been elected to an office from' taking the same and assuming and exercising its powers and duties, on the ground of invaliaity of the election or ineligibility of the party claiming the office, and, by awarding such writ in such case, a judge of such court subjects himself to a writ of prohibition from the Supreme Court of Appeals, (p. 610.)</p> <p>2. Prohibition — Jurisdiction.</p> <p>The writ of prohibition lies only to inferior courts, boards, officer or tribunals, having judicial, or gwasi-judieial, powerd, to confine them within th'eir respective jurisdictions. It cannot he invoked against individuals in respect to rights claimed by, or asserted against, them. (p. 510.)</p> <p>3. PROHIBITION — Jurisdiction—Officer.</p> <p>By its writ of prohibition, a court acquires no jurisdiction of a controversy concerning the title to an office, (p. 510-11.)</p> <p>4. Jurisdiction.</p> <p>Besides having jurisdiction of the class of clauses to which a given cause of action belongs, a court must obtain cognizance of the particular cause by requisite process, before it can hear and determine it. (p. 511.)</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Action by E. W. Clark and others against G-. W. Lambert and others. Judgment for plaintiff, and defendants appeal.</p>

Bill by J. E. Poling, trustee, against the Condon-Lane Boom and Lumber Company and others. Decree for plaintiff and the above named defendant appeals.

<p>Appeal from Circuit Court, Marshall County.</p> <p>Bill by L. M. Richardson and her husband against Ann Mc-Conaughey and others. Decree for defendants, .and plaintiffs appeal.</p>

Petition by the Cincinnati, Portsmouth, Big Sandy ’ and Pomeroy Packet Company against Samuel Bellville and others for a writ of prohibition. From a judgment denying the writ, plaintiff brings error.

<p>1. Insurance Policy — Beneficiary.</p> <p>By verbal agreement N. sold to D. certain real estate on Marcli 28, 189G, lor $2,500, but tbe contract was not completed by tbe payment of $625, easb payment and execution and delivery of tbe deed from N. to 1). and deed of trust by D. to J. S. N., trustee, to secure tbe deferred payments aggregating $1,875 until June 29, 1896, the deeds bearing the first named date. Ob tbe 4th day of June, 1896, N. took an insurance policy on tbe buildings in her own name for $2,000, and paid tbe premium thereon; after the completion of tbe contract N. offered to assign to D . the insurance policy upon repayment to her by D. of the premium, which D. refused to do; N. then assigned the same with the assent of the insuring company to D. and the said company endorsed on the policy, “This policy is hereby transferred and assigned to A. C. Dunbrack with loss, if any, payable to J. S. Neall, trustee for Mary A. Neall, as his interest, may appear,” which policy was hold by J. S. N., trustee. Held: Said insurance was for the sole benefit of N., and D. had no interest in said policy, (p. 575.)</p> <p>2. Insurance Policy — Creditor.</p> <p>Where a creditor secured by trust deed procures insurance on the trust property for his own benefit and the premium was paid out of his own money, the trust debtor cannot require the creditor to account to him for money received on account of such insurance, (p. 575. )</p>

<p>1. Syllabus Aepuovjsd.</p> <p>(Syllabus in case of Cochran v. Cochran, 55 W. Va. 178, (46 S. E. 924), approved and applied, (p. 585.)</p>

<p>1. Mortgage.</p> <p>Any writing charging a debt on property, though not a formal mortgage, is an equitable mortgage or lien. (p. 587.)</p> <p>2. Mortgage After Loan — Preference.</p> <p>Under section 2, chapter 74, Code 1899, if one lend money to a solvent person, with the agreement that a mortgage is to be made on certain property to secure loan, and later, when insolvent, the borrower makes the mortgage it is not a good preference as to other debts existing at the date of the mortgage, (p. 588.)</p> <p>3. Transfer. — Insolvent Debtor.</p> <p>A transfer or chárge by an insolvent debtor, free from actual fraudulent intent as to creditors, preferring a particular debt is not, as to debts contracted after its recordation, a preference contrary to section 2, chapter 74, Code 1899. (p. 589.)</p> <p>4. Insolvent Debtor.</p> <p>In a suit to impeach a preference made contrary to section 2, chapter 74, Code 1899, any creditor filing his demand for allowance before a commissioner under a reference to ascertain the insolvent’s debts, thereby unites in the attack upon the unlawful preference, and is entitled to share in the insolvent’s estate, (p. 589.)</p> <p>5. Insolvent Debtor.</p> <p>Several creditors, with separate demands, attack a mortgage as a preference condemned by section 2, chapter 74, Code 1899, and a decree adjudges the property to be for the benefit of all the insolvent’s creditors, and decrees out of it particular sums to the several creditors. These sums cannot be added to give jurisdiction to the Supreme Court for an appeal by the creditor preferred by such mortgage, (p. 590.)</p>

<p>1. Criminal Trial — Evidence.</p> <p>On a trial of Sullivan, for maliciously shooting White a warrant for the arrest of Sullivan sworn out by White is admissible evidence for the State to show grudge and malice on the part of Sullivan, (p. 598.)</p> <p>2. Jury — Trial.</p> <p>If a new trial depends upon the weight of testimony, or inferences from it, the jury are exclusively and almost uncontrol-ably the judges, (p. 599.)</p> <p>3. Jury — Evidence—Neto Trial.</p> <p>Where some evidence has been given to sustain a verdict a new trial will not be granted merely because the ease is somewhat doubtful, or the judge, if a juror, would have found a different verdict. The evidence must be plainly, manifestly insufficient, and the verdict work injustice. This applies a fortiori to an appellate court, (p. 599.)</p> <p>4. New Trial — Insufficient Evidence.</p> <p>The Supreme Court may in some instances, grant a new trial 'even on conflicting evidence, but should do so rarely and with the utmost caution. It should do so only where the verdict plainly works wrong and injustice, (p. 600.)</p> <p>5. New Trial — Insufficient Evidence.</p> <p>A verdict should not be set aside when the evidence is contradictory, if after the evidence has been considerd most favorably to the verdict, it does not still appear that the verdict is plainly not warranted by the evidence, (p. 600.)</p> <p>6. New Trial — Circuit Court.</p> <p>The opinion of a circuit court refusing a new trial dependent .on oral evidence involving only' questions of fact, is very forcible in the appellate court, (p. 600.)</p>

<p>Application of George J. Stanton for writ of mandcm.us to • James O’Kane, mayor of the town of WolmesdorfE, and others.</p>

Action by Catharine R. Griffith and others against the Black-•water Boom & Lumber Company and others, and by Albert 'Thompson against the same defendants. Judgment for defendants, and plaintiffs appeal.

<p>Error to Circuit Court, Mingo County.</p> <p>Action by W. P. Slaughter, receiver, against the Thacker Coal .-and Coke Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Syllabus Approved.</p> <p>Point 1 of Syllabus, in ca.se of Freer v. Davis, 52 W. Ya. 1 reaffirmed, (p. 656).</p>

<p>CowvetaNoe — Grantor~DeMs. ' 1.</p> <p>F. and liis wife, I., conveyed two hundred and eleven acres of land to W., their son, in consideration of love and affection, and the further consideration that he pay to R. J. M. $300, to A. M. $100 and to T. M. $100, and that he pay off and discharge all debts remaining against the grantors at the time of their death, or either of them, which deed, W. accepted and took possession of, and held the land thereunder: Held: First— W. is personally liable for the debts of the grantors, and second, the land so conveyed to W. whilst held by him will be subjected by a court of equity to pay the debts of the-grantors, (p. 660).</p> <p>2 Estate — Claims—Personal Representative.</p> <p>While claims due an estate, should ordinarily be prosecuted, by the personal representative thereof, yet it may be done by the beneficiaries thereof in a special case; as where it appears that the personal representative cannot or will not act.. (p. 660).</p>

<p>1. FIDUCIARIES — Presumed to Act in Good Faith.</p> <p>Fiduciaries are presumed to have acted in good faith an® performed their duty, and not to have committed breaches of trust, (p. 669).</p> <p>2. Fiduciary — Jurisdiction.</p> <p>Certificates of bank stock in the name of P. taken up by the-bank and reissued to B. P., executor of P., and by B. P. pledged’ as collateral security for notes made by B. P., the executor ' in due course of the administration of the estate of P., cannot be recovered from the bank so holding such certificates by an administrator de lonis non with the will annexed, of P. (p„ 670.)</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Action by Samuel P. Angle against Mary L. Marshall and others. Decree for defendant, and plaintiff appeals.</p>

<p>■ 1. Tbespass — Exeeptecl Land.</p> <p>In aB action of trespass for cutting trees, and the deed of the plaintiff excepts certain tracts within the outside boundary of the land, the plaintiff must show that the trees cut were not on the excepted land. (p. 683).</p> <p>• 2. Trespass — Limitation.</p> <p>In an action of trespass for cutting trees, under a plea of the statute of limitations, the defendant must show the date of such trespass, and where part of the' cutting of trees was more, and part less, than five years before suit, he must show what part is barred by the statute, (p. 683).</p> <p>: 3. New Trial.</p> <p>Rarely can the Supreme Court set aside a verdict dependent on weight of evidence, and approved by the circuit judge. The Code of 1899, chapter 131, section 9, does not, even if it could, do so under the Constitution, direct the courts as to what effect they shall give evidence upon a motion for a new trial, (p. 683).</p>

<p>Petition of Addison Hall for writ of mandamus to B. W. ;Staunton, Clerk of the County Court.</p>

<p>1. Peohibition — iCompleted Act.</p> <p>Prohibition does not lie where the act complained of has been already done. (p. 690).</p> <p>2 Prohibition — License—Assessor—Indirect Action.</p> <p>Prohibition will not lie to prohibit a county assessor from issuing a license to sell liquor, (p. 690).</p> <p>S. Prohibition — County Court — License—City Council.</p> <p>Prohibition does not lio to prevent a county court from granting license to sell liquor or compel it to revoke a license granted without the consent of a town council, (p. 691).</p>

<p>1. INSTRUCTION.</p> <p>Upon, tlie trial of an indictment under section 1, chapter 151, Code, for unlawfully keeping and exhibiting a gambling device commonly called a “slot machine,” it is not error to instruct the jury that “if the jury shall believe from the evidence beyond a reasonable doubt, that the slot machine described in the indictment is a gaming table, and that the said machine is so constructed that it offers unequal chances to the player and exhibitor, and that the unequal chances are in favor of the exhibitor of said machine, then the said slot machine is a gaming table of like kind and character to A, B, C and 'E O table, faro bank and keno table.” (p. 694').</p>