Volume 56 — West Virginia Reports

<p>1. INSTRUCTIONS — Error—New Trial..</p> <p>The giving of instructions, predicated upon two different-hypotheses in favor of the State in a criminal case, in support: of one of which there is no evidence, and the refusal of a-, proper instruction embodying the one theory which the evidence tends to establish, is prejudicial error, calling for a new trial, (p. 10).</p> <p>2. Instructions — Error.</p> <p>When, in a criminal case, the court gives erroneous instructions at the instance of the State, and refuses a proper • one asked for by the defendant, and afterwards gives, at the' instance'of defendant, instructions embodying the erroneous', propositions contained in the instructions given for the State,, the action of the court in respect to the defendant’s instructions is tantamount to an erroneous modification of the defendant’s .proper instruction, and he is not estopped from complaining of the action of the court, (p. 10).</p> <p>.3. Forgery — Evidence.</p> <p>To convict a city clerk of the forging of an instrument purporting to be an order for the payment of money out of the treasury of the city of which he is clerk, bearing the genuine signature of himself and the mayor of such city, upon the theory of his haring fraudulently made such order, the State must show that, the order was made by him without authority so to do. (p. 8).</p>

<p>Petition by Charles H. Plaldermann for a writ of mandamus against Charles C. Schane and others.</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Action by Adolphus Armstrong against E. L. Ross. Decree’ for plaintiff, and defendant appeals.</p>

<p>1. Railroad — Public Crossing.</p> <p>The acquisition of a crossing by one railroad over another involves a tailing of private property for public use. (p. 23).</p> <p>2. Railroad — Condemnation—Jurisdiction.</p> <p>Section IX of chapter 52 of the Code of 1899 does not confer upon courts of equity jurisdiction to condemn the property of one railroad, turnpike or canal company for the purpose of a crossing by another railroad, turnpike! or canal company, (p. 21.)</p> <p>3. Railroad — Court—Jurisdiction.</p> <p>By said section, such courts are empowered to determine the exact places at which, and the manner in which, such crossings may be made, when the parties are unable to agree; but the right to cross must be obtained by proper proceedings under chapter 42 of said Code, when it cannot he secured by consent and agreement of parties, (p. 23).</p> <p>4. Railroad — Pub lie Crossing — Courts.</p> <p>The place and character of the crossing to be decreed, when the parties fail to agree, are determined by the situation of the parties, the public interests, the topography of the place, the connections to be made, the expense of making the crossing and all the material facts and circumstances, affecting the public and the rights of the parties immediately concerned, and not upon the choice and will of the party desiring it. Hence, the court may decree a crossing other than the one described in the bill. (p. 32).</p> <p>5. Railroad Crossings.</p> <p>Railroad crossings at grade are neither prohibited nor discriminated against by the statute. On the contrary, they are expressly authorized, and, when the parties fail to agree, the court may order such crossing to be made, as, under all the circumstances, is fair, just and reasonable, viewed from the standpoint of the parties interested, and promotive of the public welfare, (p. 30).</p> <p>6. Railboad Grossings.</p> <p>The clause in section 11 of chapter 52 of the Code, reading as follows: “Provided its work be so constructed as not to impede +he passage or transportation of persons or property along the same,” neither contemplates nor prohibits such impediments as are merely incidental to a properly constructed crossing at grade, (p. 29).</p> <p>7. Railboad Cbossings.</p> <p>Wherever a crossing is necessary in the construction of a railroad, the law allows it and confers the right to obtain it; • but this power is to be exercised, in the absence of an agreement by the parties, under such conditions and limitations, as to the place and mode of crossing, as a court of equity may justly impose, in view of the interests of the parties and the public, (p. 21).</p> <p>8. Statute1 — Construction.</p> <p>In the construction of a statute, its spirit, rather than its letter, is the guiding star, but contradiction and repugnance must be avoided, when it is possible to do so. The statute must be construed as a whole and every word in it made effective, if possible, (p. 30).</p> <p>9. ' Statute.</p> <p>A clearly expressed intention in one part of a statute does not yield to a doubtful construction- of another portion of it; ' and when the general intention of the legislature is clear and the spirit and purpose of the statute are manifest, a mere implication or inference of a contrary particular or special intent, arising oul of language of doubtful meaning, must yield to the general intent, (p. 30).</p> <p>10. Statute — Construction.</p> <p>Where the language of a statute is ambiguous or the meaning doubtful, the surrounding circumstances, the history of the times, and the defect or mischief which the statute was intended to remedy may be resorted to in'seeking its true meaning and purpose, (p. 31).</p> <p>11. Legislation.</p> <p>An undeviating course of legislation in a certain direction through a long period of time, in an effort to systematize and perfect the law relating to a given subject, strongly ’emphasizes the express language embodying the final declaration of legislative will. (p. 31).</p> <p>12. Statutes — Construction.</p> <p>All former statutes on tlie same subject, whether repealed or unrepealed, may be considered in construing provisions that remain in force, (p. 31).</p> <p>13. Pleading — Bill.</p> <p>Uniting a purely legal demand with an equitable demand, im a bill seeking the enforcement of the latter, does not render the bill multifarious, (p. 26).</p> <p>14. Pleading.</p> <p>In such case, the allegations respecting the legal demand may be treated as surplusage and ignored, (p. 26).</p> <p>15. Pleading.</p> <p>The extent to which facts must be set out in a bill depends upon the nature of the principal 'facts to be established. When a general term used has a double meaning, and, standing alone,, may import either a mere fact or a conclusion of law, it must be accompanied by a statement of such additional facts as constitute ground for the legal conclusion, which the plaintiff undertakes to establish, else the rule that pleadings must be certain to a common intent is violated, (p. 27).</p> <p>16. Bill — Pleading.</p> <p>Bills filed under section 11 of chapter 52 of the Code are governed by the ordinary rules of equity pleading, applicable-to bills in general, and a bill so filed is sufficient, if it so states the plaintiff’s case as to inform the defendant of what he is-called upon to meet. (p. 27).</p> <p>17. Suit — Decree—Costs.</p> <p>When, in a suit under section 11 of chapter 52 of the Code,, the court decrees a crossing substantially different from the one demanded of the defendant before the institution of the-suit, a decree for costs against the plaintiff is proper, (p. 37).</p>

Application by J. B. Williamson and others, Hi Williamson and others, W. A. Hurst and others, and John L. Stafford and others for writs of prohibition to the County Court.

Action by Imogene Edwards and others against the Mounds-ville Land Company and others. Decree for defendants, and: plaintiffs appeal.

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by 'William W. Cork and wife against James F. Cook ■and John P. Hart. Decree for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill by Golden A. Straight, committee, against J. C. Ice;, executor, etc. Decree for plaintiff, and defendant appeals.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by T. R. Simmons against Z. T. Simmons. Judgment' for defendant, and plaintiff brings error.</p>

<p>1. Damages — Negligence—Accident.</p> <p>The towboat A. was proceeding down the Ohio River, which was then at a stage of thirty-eight feet, with a fleet of ten loaded coal barges, and-a fuel boat At G., in the-night time, she attempted to land to avoid the danger incident to fog, then coming upon her, but was unable to do so on account of logs and log rafts fastened to the river banks. She then attempted to-run below the bridge which spans the river at K. before the fog should render it impossible for her pilot to see objects by which to steer the boat; but before she had gone half the distance to the bridge, the fog came upon her so densely that the sight of all objects within and beyond the river was entirely cut off. The engines -were immediately reversed, and the-wheel set' to revolving backward to check- her forward movement. In this condition, the boat and tow drifted down with-the current, the front end of the tow struck a pier of the bridge, and being cut loose from the tow boat, in order to save her, part of the tow went on the inside, and part on the outside, of the pier. A loaded barge thus released struck plaintiff’s wharf boat, moored to the West Virginia bank of the 'river about two hundred and fifty feet below the pier and did damage thereto. At the time, the crew of the boat, by reason of the fog, could neither see the lights on the bridge, nor other objects in the river, or on the shpre, not immediately present, and did not know that the pier was the object which had been struck by the tow. Held, that the injury to plaintiff’s wharf boat was the result of inevitable accident, and that defendant is not liable therefor, (p. 75).</p>

<p>1. Oil Lease — Freehold.</p> <p>Tlie owner of land executes a lease thereon for oil and gas purposes, by which it is- agreed that the lessees shall have the privilege, at any time, to remove therefrom all machinery and' fixtures placed on said premises. Under this lease, the lessees, and their assignees, for the purpose of exploring for oil and gas placed on the land an engine, wooden oil well rig, wooden-oil tanks, casing, pipes, rubber belt, and other appliances of like character, necessary for the prosecution of that work. Afterwards the lease was forfeited and terminated for the nonpayment of rental. Held, that said machinery and fixtures did not become parts of the freehold,, and that said lessees, or the' owners of the machinery and fixtures ha*d a reasonable time after the termination of said lease, in which to remove said' property from the land. (p. 87).</p> <p>2. Oil Lease — Limitation.</p> <p>What is a reasonable time for the removal is to be determined from all the facts and circumstances of the case, (p-88).</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Bill by G. P. Stone against Minnie B. Simmons. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Marshall ’County.</p> <p>Bill by Vinton A. Weaver and others against B. M. Spurr and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Ed. Hunter was convicted of murder and brings error.</p>

<p>1. Pleading.</p> <p>Aside from the distinction as to the interest of the plaintiff’ in the subject matter of the controversy between the defendants, a bill in the nature of a bill of interpleader and a bill of' interpleader are governed by the same general principles, (p. 118).</p> <p>2. Vested Interest1 — Interpleader—Equitable Title.</p> <p>The relief sought by a plaintiff having such interest, and’ praying an interpleader, must be a vested equitable interest,, for the protection of which there is necessity for the settlement of the contention of the defendants, and not a mere anticipated interest or benefit which may come to him as the result of the desired adjudication between the defendants. The-plaintiff cannot require them to litigate with each other for-the purpose of determining whether he has an interest, but. only for the purpose “of enabling him to perfect his equitable title, (p. 118).</p> <p>3. Interpleader — Trespasser.</p> <p>A bill in the nature of a bill of interpleader cannot be maintained if it discloses that the plaintiff, in the event of the establishment of the claim of one of the defendants, would stand' as to him in the attitude of a trespasser, (p. 121).</p> <p>4. Bill — Interpleader—Equitable Title.</p> <p>Such a bill cannot be maintained if it discloses that the-plaintiff has contracted or incurred a personal obligation or liability to one or both of the defendants, respecting- the subject matter of their contention, independent of the title or the right to possession, (p. 121).</p> <p>5. Hostile Title — Adverse Possession — Interpleader.</p> <p>S. & C. purchased the timber on a certain tract of land, owned by certain persons. B. & J. purchased the timber on an adjoining tract, owned by other persons, and held by them under • a title hostile and adverse to that of the owners of said first mentioned tract. The line between the two tracts being uncertain as 1o location and in dispute between the purchasers, of the timber as well as between the owners of the land, S. & C. brought a suit in equity to require the land owners to in-terplead therein, to the end that the location of the line might be ascertained and an adjudication, both as to the owners of the land and the other claimants of the timber in dispute,,. might be had, respecting their title to said timber. Held,, that the hill does not present a proper case for an interpleader. (p. 122).</p> <p>i6. Adverse Possession — Purchaser—Equitable Title.</p> <p>In such case, declarations and conduct, on the part of the purchasers of the timber on one side of such disputed line, in the nature of admissions of, and acquiescence in, the location contended for by the purchasers on the other side, are only matters of evidence of location, bearing upon the question of title to the timber, and will not alone sustain an injunction to prevent the parties from taking timber beyond the location claimed by the other purchasers, (p. 121).</p> <p>"7. Damages — Injunction—Insolvency.</p> <p>For the wrong and injury of the taking of the timber of another the law provides adequate remedies, and the injury is not irreparable, and injunction does not lie to restrain such act, unless some further fact be shown in connection therewith, such as the insolvency of the wrongdoer, (.p. 122).</p>

Bill by John R. Swiger against N. J. Hayman and others. Decree' for plaintiff and defendant Mark appeals.’ Decree in favor of Hayman and Costor reversed, and decree in favor of Mark entered.

<p>Error to Circuit Court, Marion County.</p> <p>Charles Jr MeKain was convicted of assault, and brings error.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by James W. Marsh against Charles S. Despard and others. Decree for plaintiff. Defendants appeal.</p>

<p>1. Special Damages — Injunction.</p> <p>Citizens and lax-payers, simply as sucli, stating no special harm to them different from others, cannot enjoin the use of a-lease of a part of a city park, made by the city for a term of years for the purpose of racing horses, (p. 144).</p> <p>2. Lease — Public Park.</p> <p>A lease for the term of one year,, with right to extend it five years, by a city, of a part of a public park, to improve it and', use it at times for training and running race horses, for a rental to the city, reserving access at times to the public for riding and driving on the track, is not an unlawful diversion of' .such park from its legitimate use, and the lease is not void, (p. 146).</p>

<p>Petition of Jennings & Bros, for writ of prohibition against W. G-. Bennett, judge, and others.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by Augustus M. Hursey against John H. Hursey and others. Decree for plaintiff. Defendants appeal.</p>

<p>Appeal from Ciircuit Court, Monongalia County.</p> <p>Bill by Eclgar D. Turner against William McCormick. Decree for defendant, and plaintiff appeals.</p>

<p>:1. Final Decree — Chancery Cause.</p> <p>A decree in chancery cause, such as will support an appeal, is not necessarily the last decree rendered, by which all proceedings in the cause are terminated, and nothing is left open for the future judgment or action of the court; but it is a decree which determines the substantial merits of the controversy, — all the requisites of the case,- — though there may remain a reference to be had, or the adjustment of some incidental or dependent matter, (p. 179).</p> <p>Syllabus Approved.</p> <p>Point one in Syllabus of Wood v. Harmison, 41 W. Va. 376, approved and applied, (p. 179).</p> <p>Appeal — Judge—Order of Reference.</p> <p>An order of reference, founded on the expressed opinion of the judge, not followed by the sentence of the law thereon, is not appealable, (p. 182).</p>

<p>1. Appeal — Decree—Bill.</p> <p>An appeal from a decree on a bill taken for confessed will not be entertained by this Court, unless a motion to have such, decree reversed be first made and overruled by the court, or ; the judge thereof, that rendered it. (p. 184).</p>

<p>Appeal from Circuit Court, Eitchie County.</p> <p>Bill by A. M. Cross against W. W. Cross and J. E. Cross, 'Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Wirt County.</p> <p>Action by J. Y. Hamilton against Z. F. Ammons. Judgment' for plaintiff. Defendant brings error.</p>

<p>1. Life Tenancy — Subject to Payment of Debts.</p> <p>A provision in a will creating a life tenancy in the following’ language, to-wit: “I give and bequeath to my son, James, for life after the death of Ms mother, all that part of Oakland that lies north of the Northwestern road containing one hundred and elven acres, more or less, reversion of the same in fee to his children, hut the express condition of this bequest is upon the penalty of forfeiture, that the said land is not at any time to be subject to any liens or incumbrances of any kind by the reversioners. I trust that the devisees of this-property will not permit the land with the residence to go out of the family,” does riot relieve such life tenancy from the payment of the life tenant’s debts, (p. 193).</p> <p>2. Debtor — Deed for Self-Benefit Yoidable as to Existing Creditors.</p> <p>A deed conveying property in consideration of the support of the grantor and his family is voidable at the instance of existing creditors, (p. 193).</p> <p>3. Grantee tn Voidable Deed — Individual Liability.</p> <p>The grantee in such voidable deed is not personally liable for the grantor’s existing debts, nor for the rent, issues and profits of the property, until the same have been sequestered, (p. 194).</p>

<p>1. Recission of Contract — Proof of Fraud.</p> <p>To rescind an executed contract in equity on the grounds of fraud, such fraud must he clearly, alleged and fully sustained by proof if denied, (p. 199).</p> <p>2. Outstanding Title — Burden of Proof.</p> <p>A liUgant relying on the outstanding title of a third person to sustain his action or defense must fully establish' such title by competent and sufficient proof, (p. 199).</p> <p>•3. Rescission of Yerbal Contract — Remedy at'Law.</p> <p>A verbal contract for the exchange of personal property may he rescinded by either party thereto for gobd cause and a suit at law maintained for the restitution of the property. (p. 199).</p> <p>4. Rescission of Verbal Contract — Remedy in Equity.</p> <p>In such cases, resort should not he had to a court of equity, unless for some -special reason the remedy at law is unavailing or inadequate, (p. 199).</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Bill by Melinda McPeck’s heirs against David Graham’s heirs. Decree for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Bill by Martha J. Croston against Ruth Male and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Hancock County.</p> <p>Elmer S. Good was convicted of an unlawful sale of intoxicating liquors, and brings error.</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Bill by Isaac P. Martin against Elisha Thomas. Decree for «defendant, and plaintiff appeals.</p>

<p>1. Syllabi Aepkoved.</p> <p>Syllabus, point 3, Reger 'v. O’Neal, 33 W. Y. 159; Syllabus point 3, Fry v. Feamster, 36 "W. Y. 454; and point 1 of Syllabus, Wood v. 'Ward, 48 ~W. Ya. 652, reaffirmed and applied, (p. 236).</p> <p>2. Bndoeser.— To What Extent Liadle.</p> <p>M. was endorser for the firm of S. B. & Co. of which firm L. was a member. Said firm as well as L. individually became insolvent, and M. being required as such endorser to pay near $2,000, and not being able to raise all the money for the purpose himself, L. loaned him $805, for which M. executed to L. the following writing: “805 — Due W. H. Lipscomb eight hundred and five dollars, borrowed money, to be repaid when collected off of Stone, Bowman & Co., out of drafts which I have had to pay for them. This March 9th, 1888. Witness my hand and seal. W. B. Maxwell, ' (seal).” M. recovered a decree against S. B. & Co. August 2, 1890-for $956.06 interest and costs-Selcl: M. could only be held liable to L. or his assignee, upon said note to the extent of his actual collections from said S. B. & Co. (p. 241).</p> <p>3. Appeal — From Specific Farts of Decree.</p> <p>Where a party takes an appeal from specified parts of a decree, giving notice to all parties to the suit, that he will only have such parts of the record copied into the transcript as will present to the appellate court such matters so specified as he desires to have reviewed, and that it is not his purpose or intention to appeal from any other part of the decree; the appellate court will not consider an assignment of error by one of the appellees long after the submission of the cause, concerning another part of the final decree, and having no relation to the parts of the decree appealed from. (p. 241).</p> <p>4. Appeal — When Does not Bring up Whole Decree for Review.</p> <p>When an appeal is taken from specified parts of a decree set out in a written notice which states that no other part of the decree will be appealed from by the appellant, and such specified parts are independent and involve only the rights of the appellees named in such specified parts of the decree, such appeal does not bring up for adjudication the whole decree, (p. 242).</p>

<p>1. Yakiance — Amendment—Bill—Evidence.</p> <p>If there is a material variance between the allegations of the-bill and the evidence to sustain the same, unless the bill is amended to correspond with such evidence, it should be dismissed on the hearing of the case. (p. 245).</p> <p>2. Variance — Proof Not Sufficient.</p> <p>The allegation in a bill that the grantor in a certain deed: failed to retain a certain reservation set forth in a written contract authorizing such deed, is not sustained by proof that such reservation was omitted by reason of an agreement between the' parties that the grantee in such deed should make a separate deed for such reservation, (p. 245).</p> <p>3. Variance.- — Dismissal of Bill.</p> <p>■Where there is a material variance between the allegations-of the bill and the evidence, and the evidence fails to clearly show that the plaintiff is entitled to relief, the bill will be dismissed. ' (p. 245).</p>

<p>1. ConsidekatioN — Parol Testimony.</p> <p>When the consideration mentioned in a deed is merely nominal, and not contractual, or of the essense of the contract, th& true consideration for such deed may be shown by parol testimony. (p. 247).</p> <p>2. Evidence — Preponderance.</p> <p>If the evidence of the appellant sustained by the undisputed' facts and circumstances plainly preponderates over that of the appellee, as shown by the records, this Court will reverse the decree in favor of appellee, and direct a decree in favor of the appellant, (p. 248).</p>

Action by the James Clark Distilling Company against B. E. ' Bauer and another. Verdict for plaintiff. From an order granting a new trial, it brings error.

<p>1. Boaed of Education. — Void Contract.</p> <p>A contract of sale to a board of education of articles for use-in a free school, made by a member of a board of education, is" void and not enforceable, because it violates section 57, ch. 45,. Code, 1899. (p. 252).</p> <p>2. Public Officer — Contract-^Self-Interest.</p> <p>A contract in violation of a statute made to protect the general public against corrupt action moved by self-interest and" pecuniary gain in public officers, and against their bribery, and" to protect the public treasury against corrupt action and wasteful expenditure moved by self-interest in public officers, and to promote the public good, is void and will not be enforced in the courts, (p. 253).</p> <p>:.2. Plea. — Averments.</p> <p>In an action to recover the price of goods under a sale that is void, because in contravention of a statute, a plea setting up its illegality need not aver that prejudice came to the purchaser. (p. 257). ^</p>

<p>1. StjbrogatioN — Assignee.</p> <p>The right of a surety, who has paid the debt of his principal, to he subrogated to the rights and remedies .of the creditor against his co-sureties, may be assigned to, and, undeE the assignment, enforced by, the assignee, (p. 261).</p> <p>2. Decree — Lient—Proof of Satisfaction of Lien.</p> <p>In the absence of evidence tg the contrary, decrees adjudicating liens against certain land, ordering a sale of the land, confirming the sale thereof and ordering payment of the liens-out of the proceeds by the special commissioners into whose hands the proceeds of sale have come, in sufficient amount to-satisfy a certain one of the liens so fixed and all others prior thereto, is sufficient proof of satisfaction, out of the proceeds of the land, of the lien in question.’ (p. 262).</p> <p>3. Statute oe Limitations — Judgment Lien.</p> <p>Where the judgment has been kept alive by the insuance thereon of successive executions, as provided by section 10 of ; chapter 139 of the Code, and finally satisfied out of the lands of one of several co-sureties for the debt out of which the judgment originated, and a suit by the assignee of such surety, holding his right of subrogation against other sureties, brings his suit for enforcement of that right against the lanas of one of the other sureties, within ten years from the return day of the ' last execution issued on the judgment, and the rights of no ; third parties have intervened, which will be prejudiced by the ■enforcement of the lien by way of subrogation, such suit is not . barred by either the statute of limitations or laches, (p. 264).</p> <p>4. ‘ Subrogation — Evidence—Oral Proof of Payment not Sufficient.</p> <p>An allegation, by way of defense to such a suit, of payment made by a third co-surety of his portion of the judgment, is not ! supported by oral testimony of the existence of a release of the judgment as to the land of such co-surety, without production of the release or a copy thereof showing payment by him, or proof of satisfaction of the lien as to such land in.some way other than by payment out of the proceeds of the lands of the other surety, sold as aforesaid for the satisfaction thereof, (p. 266).</p> <p>5. Judgment Lien — Oral Proof not Sufficient — Lost Payers.</p> <p>Allegations, by way of defense to such a suit, that there remains in the hands of a special receiver in a chancery cause against still another surety, brought for the enforcement of liens against his lands, a fund, which has not been disposed of, derived from rents accruing under a decree by which the lands of such surety were rented, and that the lands of such surety were sold in such suit for an amount more than sufficient to pay all of the liens thereon, and that the judgment in question was barred from participation in.the proceeds thereof by the failure of the creditor to assert it in said suit, are not sustained by oral testimony, based on information only, to the existence of such fund, in the hands of such special receiver, and to the understanding of the witnesses testifying, that there was a surplus of the proceeds of the lands after satisfying all the judg- '■ ments asserted in said suit, none of the decrees in said suit being produced in support of the allegation, notwithstanding the non-production of the papers in.the cause is justified by proof of their loss. (p. 267).</p> <p>6. Co Surety — Liability.</p> <p>The measure of liability' of the co-surety in such case is the whole amsunt of principal and interest paid for him, with interest thereon'from the date of payment, (p. 268).</p>

<p>Appeal from. Circuit Court, Barbour County.</p> <p>Action by F. P. Eease against C. B. Kittle and others. De•cree for plaintiff, and defendant O. C. Womelsdorf appeals.</p>

<p>1. Cestuis Que Trust — Purchaser.</p> <p>Trustees and. cestuis que trust are in tills State always treated as purchasers for value, (p. 290).</p> <p>■2. Innocent Purchaser — Trustee—Fraud.</p> <p>A pre-existing debt is, of itself, a valuable consideration for a deed of trust, executed for its security, wbicb deed, if it be duly recorded, and was not executed with a fraudulent intent, known -to the trustee, or to the beneficiaries therein, will be valid against all prior secret liens and equities, and all subsequent alienations of, and incumbrances on, the trust property. (p. 290).</p> <p>3. Resulting Trust — Evidence.</p> <p>To establish a resulting trust in land by parol, the evidence must be full, clear and satisfactory, (p. 292).</p> <p>4. Lien — Suit—Notice.</p> <p>C. obtained a judgment against L. and others wbicb becajn® a lien dn several separate tracts of land owned by L. A creditor’s suit was brought against L. and others, to enforce their liens against some of said tracts of land. There was a reference; and the notice to lien holders was published and posted. The lands proceeded against were sold and the proceeds of the sale distributed among the several lien holders who appeared and proved their liens. C. did not present or prove his-lien in that suit. He received no part of the proceeds of the sale made therein. Another creditor’s suit was brought against L. and others in which the other lands, not proceeded against in the first suit, were sold. Held, That the failure of C. to prove his lien in the first suit, does not bar him from proving, and having it allowed, in its proper order in the second suit. (p. 293).</p>

<p>1. Principal and Agent.</p> <p>Wherever one person requests, or allows, another to assume such a position that the latter may be compelled by law to discharge the former’s legal liabilities, the law imports a request and promise by the former to the latter; — a request to make the payment; and a promise to repay;' — and the obligation,' thus created, may be enforced by assumpsit, (p. 296).</p>

Appeal 'from Circuit Court, Randolph County. Action by Harriet S. Wamsley and others against the Mill Creek Coal & Lumber Company and others. Decree for defendants, and plaintiffs appeal.

<p>1. Instbuctions — Reversal on Instructions.</p> <p>An erroneous, or irrelevant instruction on a material point is presumed to be to tlie prejudice of the party appealing,, against whom it is given, and will cause reversal, unless it clearly appears from tlie record that it was harmless. Ward v-Ward, 47 W. Va. 766. (p. 313).</p>

Apj^al from Circuit Court, Randolph County. . Bill's',by Marshall Scott against Leon Isaacsen and others), and by Curtin & Co. against the same defendants. Prom the-decrees, defendant A. P. Hart appeals.

<p>Appeal frota. Circuit Court, Barbour County.</p> <p>Action by Henry Holsberry and others against Priscilla G. Harris and others. Judgment for plaintiffs, and defehdant Priscilla Plarris appeals.</p>

<p>Error to Circuit Court, Wood County</p> <p>The Schmulbach Brewing Company was convicted oí selling beer without a license, and brings error.</p>

<p>Appeal from Cireuit Court, Hancock County.</p> <p>Bill By A. 0. Le C„omte against Martin L. Carson and others. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by the Hirst National Bank of Jefferson against George Harris and others. Decree for defendants, and plaintiff appeals.</p>

Y. Wirt Kittle was convicted of violating an ordinance of tire ' town of Philippi. On appeal the conviction was reversed, and the town brings error.

<p>Appeal from Circuit Court, Wood County.</p> <p>Suit by S. B. Baker against D. R. Tappan and others. From the decree for plaintiff, F. P. Moats, trustee, appeals.</p>

Bill by Kemble’s committee against W. P. Smallwood, and 'by W. P. Kemble, administrator, against J. EL Smallwood and •others. Decree for defendants, and plaintiffs appeal.

<p>Error to Circuit Court, Grant County.</p> <p>Action by Aaron Armentrout against S. H. Smith & Bro. and' another. Judgment for defendants, and plaintiff brings error..</p>

<p>1. Railroad — Right of Way — Condemnation Proceedings.</p> <p>W. V. S. L. R. R. Co. on the 16th day ol October, T90Q, by the corporate action of its board of directors, duly adopted its line of railroad, of which a preliminary survey had been made through the lands of W. whereby it acquired priority of right to condemn the right of way through said land of W.; between the 15th of July, 1902, and the 5th day of August, 1902, the B. & N. R. R. Co. located and staked off its line of railroad through the land of said W. which was duly adopted as and for the location of its line of railroad, by the board .of directors of said company, on the 3rd day of September, 1902; W. Va. 'S. L. R. R. Co. in September, 1902, by its engineer, staked out a line through the land of W., claiming it to be on the said- line adopted by it on said 16th -day of October, 1900, and commenced condemnation proceedings based upon the survey of September, 1902, which was shown to be at material variance from the said location of October 16, 1900, and in conflict with the adopted location of the B. & N. R. R. Co. Held: The line staked out in September, 1902, for the location of the railroad line of W. Va. S. L. R. R. Co. was a new location not adopted by corporate action of the company, and could'not be the basis for condemnation proceedings, (p. 371).</p> <p>2. CONDEMNATION PROCEEDINGS.</p> <p>Quaere — whether, under the circumstances of this case, the W. Va. S. L. R. R. Co. did not, by its delay of more than two years in prosecuting its condemnation proceedings after it ha'd acquired the right to do so by its action of October 16, 1900, lose its right of priority thereto? (p. 372).</p>

<p>1. Copt of Official Seal- — When Sufficient.</p> <p>Where a copy of a deed is offered in evidence having a certificate of acknowledgment certified by the officer as under his-official seal and the cleric in copying appends to such officer’s official signature the word “seal,” such word will he presumptively held to represent such officer’s official seal, and such copy is properly admitted in evidence over such objection, (p. .374).</p> <p>2. Acknowledgment by Justice — When Sufficient.</p> <p>The fact that a justice talcing an acknowledgment signs the certificate as justice and alderman will not vitiate such certificate,'-but his official designation as alderman will he regarded as 'surplusage, (p.375).</p> <p>.3. Ancient Deed. — Recitals as Evidence.</p> <p>Recitals of heirship and «widowhood in deeds upwards of thirty years old under which possession has been continuously held are presumptive evidence of the truth of the same, and admissible against strangers to the title claiming adversely, (p. 375).</p> <p>4 Adverse Possession. — Burden of Proof.</p> <p>An adverse claimant of title under the statute of limitations must show actual, notorious, visible, open, continuous and exclusive possession for the statutory period, and his possession to be continuous must be such as will permit the superior claimant to sue him as a trespasser at any time during the period. Unless he-malees otit a prima facie case of such unbroken^ continuous possession on demurrer to' evidence, the judgment should be against him. (p. 378).</p> <p>.5. Adverse Possession. — Wild Lands.</p> <p>There can he no adverse possession of wild lands as against a superior title unless such'possession is actual-, exclusive, visible, and notorious. A mere claim to possession accompanied by the occasional' cutting of timber, the prevention of trespasses, the payment of taxes and tire assertion of title is not sufficient, but it must be such occupation, use or holding of the property or change in its character, as will make ■■such claimant during such statutory period continuously subject to be treated as a trespasser by the holder of the superior title constructively or actually in possession of such land. Such claim, of possession does not amount to an ouster of the superior claimant, (p. 380).</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Bill by Bartles & Dillon against John W. Dodd and others. Decree for plaintiffs, and Joseph H. Shaffer and David II. Shaffer appeal.</p>

Action by the State, for the use Qf Calhoun’s administrator,., against D. M. Wotring and others. Judgment for defendants, and plaintiff brings error.

’’ Appeal from Circuit Court, Harrison County. Suit by the Honesdale Shoe Company and others against Wells D. Montgomery and others. Decree for defendants, and plaintiffs appeal.

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by the Carnegie Natural Gas Company against the South Penn Oil Company and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by Lipscomb's administrator against Levi Z. Cofidon and Albert H. Horner. Decree for plaintiff, and defendants appeal.</p>

Action by the Third National Bank of Cumberland, Md., against the Laboringman’s Mercantile & Manufacturing Company and others. Judgment for defendant company, and plaintiff brings error.

<p>Appeal from Circuit Court, Barbour County.</p> <p>Suit by tire Grafton & Belington Railroad Company against, the Buckhannon & Northern Railr.oad Company. Decree for defendant, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Action by C. L. Showalter and others against Richard L. Lowndes and others. Judgment for defendants, and plaintiffs .appeal.</p>

<p>1. Taxation. — Power of Assessor and Olerh of Oomty Court Over Land Boohs.</p> <p>Section 10, chapter 51, Acts 1875, as amended and re-enacted hy section 10, chapter 73, Acts 1879, as amended and re-enacted hy section 10, chapter 12, Acts, 1881, and now in force, as section 10, chapter 29, Code, authorize the assessor or the clerk of , the county court, to restore to the land hooks, at the instance of the owner, any lands omitted therefrom by reason of a sale to the state for delinquent taxes, if such sale is for any cause illegal and invalid-, within five years from the time such lands-are omitted from such hooks; and the failure of the owner to< have such lands so restored to the proper hooks within such time subjects them to forfeiture under section 6, article XIII, Const., and section 39, chapter 31, Code. (p. 473).</p> <p>2. Cloud on Title. — Party Suing to Remove Must Have Title.</p> <p>A suit to cancel alleged fraudulent and void decrees and deeds as a cloud upon title to land cannot be maintained by those having no present interest in or title to such land, either legal or equitable, (p. 475).</p> <p>8. Taxes. — Payment Under ~Void Tax Deeds Does not Prevent Forfeitures.</p> <p>The payment of taxes by adverse claimants of land under fraudulent and void tax decrees and tax deeds, does not inure to the benefit of the delinquent owner so as to prevent the forfeiture of his title, for non-entry on the land boolrs. (p. 475).</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Till by J. K. Mosser and others against J. Ii. Moore and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by Winnie Uhl against the Ohio River Railroad Company. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Administeatoe — Claim for Damages Deemed Property.</p> <p>C. was employed as a laborer by the defendant, at its manufacturing plant in O. county, W. Va. While engaged under direction of defendant’s laDor foreman in tearing down a scaffold which had been erected by defendant, and belonged to it, he was injured by the falling of one of the platforms of the scaffold, and, from the effects of his injuries, died in Bellaire, in the state of Ohio, where he. resided. He haying died intestate, the county court of Ohio county committed his estate to R., sheriff of said county, to be by him administered. R., as administrator of C, instituted this action in O. county. At the time of his death, C. had no mansion house, known place of residence, any roal estate, or any property, situate in the State of W. Va.; and since his death, no property belonging to him,' or to his estate, except the claim for damages sued for in this action has come into this state. Held, That said claim against defendant in this action for damages for the death of plaintiff’s intestate, must be deemed property within the meaning of our statute; that the county court of O. county had authority to commit the estate of C. to the sheriff of that county to be by him administered; and that said sheriff, as administrator of C., had the right to institute and prosecute this action, (p. 515).</p> <p>-2. Plea. — Special Plea Rejected, When.</p> <p>Special pleas, which aver matters only, that may be given in evidence under the general issue, should be rejected, (p. 516).</p> <p>3. Administbatob. — Security for Costs. — Non-Resident Decedent.</p> <p>A resident administrator who brings an action in a court of this state to recover damages under our statute for the death, of his decedent, who was a non-resident, should not he required to give security for costs, (p. 516).</p> <p>4. Cause of Death. — Accident or Disease. — Burden of Proof.</p> <p>Where, in an action for fatal injury, it becomes a question whether death' resulted from the injury, or from disease with which it had become involved, the party causing the injury cannot escape full liability without showing that death must have resulted, if the injury had not been done. (p. 524).</p> <p>5. Master and Servant. — Bafe Place to Work Required.</p> <p>If the master cause to be constructed, a scaffold in an un-workmanlike manner, and use therein defective or unsound materials, all of which render the scafEold dangerous and insecure, and the master or his foreman in charge of the work know it, or ought to have knowledge of it, by the exercise of reasonable attention, care and diligence, but direct such work to be done, and that character of materials to be used, he is liable to his workman, who being himself in the exei’cise of reasonable .care, is injured thereby while working thereon, unless the workman, by the use of ordinary care, ought to have detected the unworkmanlike construction of, and the defective or unsound materials used in, the scaffold, (p. 522).</p> <p>6. Syllabus Approved.</p> <p>Point 4 of syllabus in Andrews v. Mundy, 36 W. Va. 22, approved and applied, (p. 525).</p> <p>7. Master and Servant. — Ordinary Risks.</p> <p>When a servant enters into the employment of a master, he assumes all the ordinary risks, incident to the employment, whether the employment be dangerous or otherwise, (p. 528).</p>

Bill by C. B. Clark and others against the Hendricks Company, Limited, and others, and by W. O. McbTeeley against the •same defendants. Decrees for plaintiffs, and defendants appeal.

<p>• 1. Parties — Decree Reversed, for Want of — Day in Gourt.</p> <p>When, it is made to appear that the rights of persons who are necessary parties, have been adjudicated in a cause, who are not made parties to the suit, the decree will be reversed and the-cause remanded that such parties may be brought in. (p. 545).</p> <p>2. Interpleader. — Practice,—Affidavit Required to Interpleader.</p> <p>To a bill of interpleader there must be annexed by the plaintiff, an affidavit that there is no collusion between him and any of the parties, (p. 545).</p> <p>3. Interpleader.- — Prayer of Bill.</p> <p>A bill of interpleader should pray that the several claimants' be compelled to interplead and state their several claims, so that the court may adjudge to whom the same debt, duty, or other thing belongs, (p. 544).</p>

<p>Error to Circuit Court, Yaj’ne County.</p> <p>Action by the Ivonova Transfer Company against the Monongahela Eiver Consolidated Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>'1. Attachments — Junior and Senior, When Stay Should he Had.</p> <p>Proceedings on junior attachments against a garnishee should he stayed until proceedings on senior attachments against the same garnishee are determined, unless the amount garnisheed is sufficient to satisfy both sets of attachments, (p. 550).</p> <p>2. Attachments, — Jurisdiction of Circuit Courts.</p> <p>Several attachments are sued out in Greene county, Pa., and served on a garnishee, a subsequent attachment is sued out in Marion county, W. Va., by a different plaintiff, against the same defendant, and served on the same garnishee, the question is presented in each of such attachment suits as to which attachments are entitled to priority under the statute of Pennsylvania. As a matter of comity and to avoid confusion and conflict of decisions to the detriment of the garnishee, the proceedings under the jurisdiction of the courts of this State should be stayed until the matter of priority is settled by the courts of Pennsylvania having jurisdiction thereof, (p. 549).</p>

Action by tbe State, to the use of the county court of Tjder county, against the Sistersville, Middlebourne & McElroy Trjpi-pilce Company and others. Judgement for plaintiff, and defendants bring error.

<p>1. Steeet Railway Company- — Gare Required.</p> <p>Street railway companies for tlie protection of their passengers, are hound to exercise extraordinary care and the utmost \ skill, diligence and human foresight in keeping in repair the necessary appliances used by it in the transportation of such, passengers, and the slightest negligence on its part renders it liable for all accidents to such passengers occasioned thereby, (p. 556).</p> <p>2. Street Railway Company — Frequent Breaking of Trolley Wire.</p> <p>The frequent breaking of a trolley wire at or near a given, point is evidence to justify a jury in finding such a company-negligent in discharging the duties it owes to the public and its passengers, (p. 557).</p> <p>3. Passenger. — Ordinary Prudence.</p> <p>Whether a passenger acted with ordinary prudednce in leap--ing from a car in motion, or from a rash apprehension of danger which did not exist, under circumstances of age,, time, place,. experience and other facts about which reasonable men might differ as a justification for such' conduct, is a question of fact' for a jury and not a question of law for the court, (p. 557).</p> <p>4. Demukbek to Evidence — When Judgment Will he Affirmed.</p> <p>Judgment of the circuit court over-ruling a demurrer to evidence, will be affirmed unless it is contrary to the plain preponderance of the evidence or it is without evidence to support it as to some material question at issue. ,(p. 558).</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill by tbe state against Jane Jackson and others. Decree for defendants, and the state appeals.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by Eli Carney and wife against George W. Barnes and ■others. Decree for plaintiffs. Defendant Barnes appeals.</p>

<p>1. Nuisance. — Railroad,.'—Damages.</p> <p>One who purchases a lot near an existing railroad, and sustains damages from its negligent construction and maintenance,, is not barred of recovery of damage by" reason of the fact that, the railroad had already been Constructed before his purchase, (p. 593).</p> <p>2. Nuisance. - ■</p> <p>Action by one coming to a nuisance for damage from it. (p-593).</p>

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by George W. Trail against Alberta Trail and others. Decree for plaintiff, and defendants appeal.</p>

<p>Petition by tbe Joseph Speidel Grocery Company for writ of prohibition to Hugh Warder and others.</p>

<p>1. Judicial Sale. — When Purchase Construed as Mortgage.</p> <p>A purchase of real estate at a judicial sale by strangers to the proceeding and a contemporaneous re-sale thereof by them to the debtor by an executpry contract in writing, whereby he is charged with a certain sum in addition to the amount for which it sold at the judicial sále, all in pursuance of a prior verbal contract, though, in form, a purchase of the land, is regarded in equity as a loan of money on the land as security, and the rights of the parties are determined by the principles governing the relation of mortgagor and mortgagee, (p. 622).</p> <p>2. Mortgagee and Mortgagor. — Equity of Redemption.- — Burden of Proof.</p> <p>Where a mortgagee has obtained from the mortgagor a release of his equity of redemption, the burden is upon him to show that, in obtaining it, his conduct was in all things fair ana frank and that he paid for the property what it was worth, (p. 622).</p> <p>3. Equity oe Redemetionj — Release of Redemption Fraudulent, when.</p> <p>If, in such case, it be shown that the mortgagee induced the act of conveyance or release by any indirection or obliquity of conduct, such as an assurance that it is desired for some purpose other than to bar redemption and that it shall not do so, and that there was no consideration for it except the original debt, the release will be set aside in equity, (p. 623).</p> <p>4. Mortgage.' — Expense of Loan not Usurious.</p> <p>Reasonable expenses by the lender in making a loan, such as those incident to inspection of the land offered as security and examination of the title tnereto, incurred at the instance and request of the borrower and upon his promise and undertaking to pay the same, may, upon full and clear proof, be allowed him and will not render the debt usurious, (p. 641).</p> <p>5. Mortgage. — Bill to Redeem. — Costs.</p> <p>Upon a bill by a mortgagor to redeem, the costs of the suit a're to be decreed against him, unless he establishes a prior tender of the amount due on the mortgage, (p. 641).</p>

<p>1. Evidence — Question of Fact — Appeal and Error — When Lower - Court Reversed on ]$aets.</p> <p>Though upon a question of fact, as to which there is / conflicting evidence, the finding of the tria.l court is entitled to-peculiar weight and will not ordinarily be disturbed, -the appellate court will reverse such finding, when there is a decided preponderance of the evidence against it and the finding itself' is inconsistent with what the evidence, on the whole, clearly shows was intended to be the relation of the parties toward one = another, (p. 660).</p>

<p>Appeal from Circuit Court, Harrison Comity.</p> <p>Action by Elmore H. Stout against C. Sprigg Sands and' others. Decree for defendants, and plaintiff appeals.</p>

<p>Petition of John L. Stafford for a writ of mandamus to the board of canvassers of Mingo county. s</p>

<p>Petition of Ií. P. Golf for a writ of mandamus to the board of canvassers of Roane County.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Elizabeth Emblem was convicted of misdemeanor and brings error.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Jerome Kellison was convicted oi murder in the first degree, and brings error.</p>