Volume 57 — West Virginia Reports

Action by the Elkins National Bank against JesSe H. Simmons and others, and by B. W. Moore against J. H. Simmons and others, and by Lloyd Hansford, trustee, against Jesse H. Simmons and others. Decree for plaintiffs and W. E. Hedrick and other defendants appeal.

<p>1. Municipal Corporations —Taxes.</p> <p>The City of Elkins has no authority under its charter act (chapter 151, Acts of 1901) to collect the whole or any part of the cost of the public sewers-placed by it in its streets and alleys from the owners of the real estate abutting- on such streets and alleys, by means of the levy of a special tax or assessment against them for that purpose, (p. 12.)</p> <p>2. Municipal Corporations — Taxes—Equity—Injunction.</p> <p>If a municipal corporation acts ultra vires in the levying of a tax or assessment and attempts to colled it, equity has jurisdiction, upon proper bill filed by the party or parties, subject to such lax or assessment, to enjoin its collection, (p. 14.)</p>

<p>1. Appeal. — Bill Confessed — Errors in Decree,</p> <p>An appeal from a decree upon a bill taken for confessed, after a motion to correct the same, under section 5. of chapter 1114 of the Code, specifying certain errors therein and charging' generally the existence of others, has 'been overruled, brings before ihe appellate courtjill the errors of law in (he decree! (p.'19.)</p> <p>2. Trustee — Sale by— When Equity will Entertain Suit by.</p> <p>A trustee in a deed of trust cannot, as a matter of course, resort to a court of equity to have sale made under its decree, instead of ■ selling’ under the power vested in him by the deed of trust, and, unless he shows such impediment to the exercise of his powers as renders it inequitable for him to proceed without the aid of the court, ho will not be entertained, (p, 20.)</p> <p>il. Trustee — TAens—Uncertainty of Liens on Trust Property.</p> <p>The existence of prior or subsequent lions, or both, on real estate, which a creditor desires to have sold under a deed of trust, held by him, constitutes no impediment to the execution of the power, of sale vested in the trustee, [unless it be shown that their is such uncertainty, dispute or controversy,' as to 1he amounts or priorities of 'some, or all of them, as may deter bidders from offering'full and fair prices for the property, (p. 21.)</p> <p>4. Trustee — Suits by — When Equity mill not Entertain.</p> <p>The possibility oí' a right of subrogation and marshalling of assets in the trust creditor, desiring such sale, confers upon the trustee no right to the aid b£ a court of equity in the execution of the power of sale vested in him. (p. 36.)</p> <p>5. Trustee — Trustee Governed by Terms of Trust.</p> <p>The rights, powers and duties of a trustee in a deed of trust, executed to secure the payment of a debt, are limited and defined by the instrument under which he acts, and he does not control the debt secured and cannot assert the equities, rights and powers of the cestui que trust, respecting it., to any extent beyond the powers expressly conferred upon him by the deed of trust and such incidental and implied powers as are included in the authority so expressly conferred, (pp. 25, 26.)</p>

<p>1. Mandamus.</p> <p>Mandamus lies to compel the admission or restoration to office of the party having a clear prima facia right thereto, shown by a commission, certificate or other legal evidence thereof, (p. 30.)</p> <p>3. Office — Mandamus.</p> <p>Such writ will be awarded directly against one who, under section 3 of chapter 7 of the Code, holds over after the expiration of the term for which he was elected or appointed, to compel him to yield the office to the person elected or appointed to succeed him. (p. 81 )</p> <p>3. Public Offices,— Vacancy in Office Under Statute.</p> <p>Incumbency of an office, by holding over under said statute, does not preclude the existence of a vacancy as a basis for the exercise of the appointive power under section' 5 of chapter 45 of the Code, (p. 33.)</p>

<p>1. DHiruRRJSB to Rill. — Might to Amend —Res Judicata.</p> <p>Where a demurrer to a bill in equity has been erroneously overruled by the circuit court, and upon appeal the demurrer is sustained, the decree reversed and the cause remanded “To bo heard and finally determined according to the rules and principles of equity,” although the decree contains no directions for leave to plaintiff to amend his bill, the judgment of the Appellate Court is not res judicata and the bill may bo amended, (p. 3o).</p> <p>2. CojnnssiOHini’s Salís. — Remand jor Rejerred Payments not Required.</p> <p>Where a sale has been made by a. commissioner under a decree .of court and notes taken for the deferred payments, no demand for payment thereof is required or necessary, (p. 40.)</p>

<p>1. INSURANCE Policy — Award Under.</p> <p>An award under an insurance policy, tlie submission limited to. the amount of loss by fire, does not prevent action on the policy. (P- U )</p> <p>2. Insurance Policy — Pleading.</p> <p>Ho specification having been filed in the trial court of the defense that the policy of insurance- was forfeited by the assignment of the right of the assured, that defense cannot avail on writ of error, (p. 15 )</p> <p>3. Insurance Policy — Proof of Loss.</p> <p>A fire insurance policy provides for notice of loss, and proof of loss and arbitration, and contains the independent provision that “the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss, herein required have been'received by this company, including an award by appraisers, when appraisal has been required.” A preliminary proof of loss having been furnished, this clause does not require another alteran award upon the amount of loss. (p. 46.)</p> <p>4. Insurance Policy — Arbitration—Conclusive as to Amount of Loss-</p> <p>An insurance policy provides, in case of disagreement as to amount of loss to goods by fire, for arbitration as to such amount, as a condition precedent to suit on it, and provides that the award shall “determine the amount of such loss.” A valid award under it is final and conclusive as to the amount of loss. (p. 46.)</p> <p>5. Insurance Policy.</p> <p>Awards — effect of.</p> <p>6. Insurance Policy — Awards—Impeachment of.</p> <p>An award under a submission in the country — not a statutory award — cannot be impeached at law by evidence of misconduct of the arbitrators in becoming intoxicated while performing their duties, or other cause not apparent on the face of the award, (p. 47 )</p> <p>7. Awards— Submission to Awards.</p> <p>An award has the same effect whether the submission is by writing- under seal or not under seal. (It may be not so if award is to. pass title to land.) (p. 48)</p>

<p>1. Jury Trial — Motion to Exclude Evidence — When Sustained.</p> <p>On a motion to exclude all the plaintiff’s evidence and direct a verdict for the defendant, the court should be guided by what its action would be if the case were submitted to the jury, and they should find a verdict in favor of the plaintiff upon such evidence. If it would be the duty of the court to set aside the verdict of the jury because without sufficient evidence, then the court should sustain the motion to exclude, and instruct the jury to find for the defendant. But if, on the other hand, the evidence is such that, under the law, the court should refuse to set aside the verdict, the motion to exclude the evidence should be overruled, (p. 52.)</p> <p>2. Statute op Frauds — Sale of Land by Telegraph.</p> <p>A contract for the sale of real estate may be made by means of telegraphic communications, and if it can be collected from the telegrams referring to one another and directly related to one another, so that it may be fairly said to constitute one paper relating to the contract, and if the telegrams are signed by the parties or their agents, and it appears by them that the minds of the parties met, and that the terms of the contract, by referring to the telegrams can be made to clearly appear, it is a sufficient compliance with the statute which requires contracts for the sale of real estate to be “in writing and signed by the party to be charged thereby, or his agent.’’ (p. 54.)</p> <p>2. Corporations — Contracts by Officers of Corporation — When Binding.</p> <p>The secretary of a corporation has no power, merely as such secretary, to make contracts binding the corporation, and if the secretary, by virtue of his office, makes a contract selling the real estate belonging to the corporation, the contract is not enforceable against the corporation, unless it appears that the secretary had express authority to make such contract, or had been clothed with apparent authority by the corporation to do so, or that the corporation had acquiesced in or ratified the sale. (p. 54.)</p> <p>4. Agency — Extent of Agency Presumed to be Known by one Dealing with.</p> <p>Where a person deals with an agent, it is his duty to ascertain the extent of his agency. He deals with him at his own risk. The law presumes him to know the extent of the agent’s power; and if the agent exceeds his authority, the contract will not bind the principal, but onty the agent. Bosendorf v. Poling, 48 W. Va. 621. (p. 55.)</p> <p>5. TELEGRAM. — Proof of What Required.</p> <p>The message sent, to a telegraph office to he transmitted in reply to one received, is the original, and not the message received at the place to which it is transmitted. The latter must be considered as a copy, and carries with it none oí the qualities of primary evidence, and cannot be admitted until the foundation is laid for the admission of secondary evidence, and then can only be admitted upon proof that the copy offered is a correct transcript of a message actually authorized by the party sought to be affected by its contents. But even where the original is produced, its authenticity must be established, and this either by proof of the handwriting or by other proof establishing its genuineness, (pp. 56, 57.)</p>

<p>1. DnoiarantT’s Estate — ¡Suits to Settle — Witness Disqualified.</p> <p>If a creditor’s suit is brought to settle up a decedent’s estate and a creditor of the decedent files a claim against the estate, before the commissioner to whom the case is referred to convene the creditors and state an account therein, involving purely personal transactions between the creditor and deceased, the creditor, under s. 23 ch. 130, c. 1899, is incompetent to give evidence as to such claim, (p. 59.)</p> <p>2. Limitations — New Promise in Writing— Requirements of.</p> <p>Where a debt, is barred by the statute of limitations, and a new promise or acknowledgment is relied upon to remove the bar, there must be an ex^uess promise to pay, or an acknowledgment o£ the debt unaccompanied by reservations or conditions, from which an implied promise will arise, and the writing ought to be such a one, as if declared upon, would support the action, (p. 00.)</p> <p>3. COMMISSIONERS in Chancery — JSrroneous on Face — Exceptions.</p> <p>To take advantage of a report of a commissioner in chancery on the ground that the evidence taken before him is insufficient to support his findings, it is necessary that the report be excepted to: but where the report is erroneous upon its face, the error can be taken advantage of without such exception, (pp. 61, 02 )</p>

<p>1. EXECUTION.</p> <p>An execution issued by the clerk of the circuit court upon a judgment of a justice without a transcript of such judgment having-been tiled in such clerk’s office as required by section 118 of chapter SO of the Code, is void as belween the parties, (p. 64.)</p> <p>2. Execution — Circuit Clerk. — Justice’s Transcript.</p> <p>The filing of an abstract of a judgment of a justice in the clerk’s office of the circuit court of the county in which the judgment was rendered is not a compliance with the provision of said section which requires a transcript of such judgment to be filed. The filing of such abstract confers no authority upon the clerk of said circuit court to issue an execution on such judgment, (p. 66.)</p> <p>3. Execution — Motion to Quash. — Notice.</p> <p>Where a party appears generally and resists a motion to quash an execution without objection for want of notice of the motion, he thereby waives the notice thereof required by section 17 of chapter 140 of the Code. (pp. OS, 66.)</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Action by Harman & Crockett against Maddy Brothers. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. — Appearance— Waiver of Process.</p> <p>A general or voluntary appearance in a case by a defendant named' therein, is equivalent to service of process and confers jurisdiction of the person on the court, (p. 76.)</p> <p>2. AppeaRANce — Waiver of Detect in Process.</p> <p>A general appearance waives any defect in the process, and con-téis jurisdiction of the person, (p. 76.)</p> <p>3. Judgment for More ttian Claimed in'Writ. —Excess—Jurisdiction.</p> <p>Where, in an action of assumpsit, judgment is rendered for a greater sum than the damages laid in the writ and declaration, the appellate court will not review such judgment, when such excess of damages is not sufficient to give said court jurisdiction, (p. 76.)</p>

Bill by A. S. Bosworth and another against W. G. Wilson and others. From an order sustaining a demurrer to the bill, complainants appeal. Dismissed.

<p>1. Suprbmb Court Jurisdiction — Becognizance—Bail.</p> <p>Judgment for the State for $100.00 on a scire facias on a recognizance of bail. At a subsequent term an order is made setting aside the judgment. As the principal and interest exceeded $100.00' when the order of release was made, this Court has jurisdiction of a writ of error sued out by the State, (pp. 82, 83.)</p> <p>'2. Scirb Facias— Recognizance.</p> <p>A judgment on a scire facias upon a-recognizance of bail is a bar to defences which might have been made against the scire facias. (P- 83.)</p> <p>3. Scire Facias — Release oj Judgment on at Jormer term.</p> <p>A court cannot, at a later term, release a final judgment entered at a former term upon a writ of scire /acias upon a recognizance of bail. (p. 83.)</p>

<p>1 Election — Election Certificates Prima Facie Evidence — Ballots.</p> <p>Certificates of the result of an election, made by the commissioners at the precincts, are prima fade evidence of the result of the election. The ballots, if identified as the same cast, are primary and higher evidence; but, in order to continue the ballots as controlling evidence, it must appear that they have been preserved in the manner and by the officers prescribed by the statute, and that, while in such custody, they have not been changed or tampered with. (p. 87.)</p> <p>2. Election. — Ballots Void if Tampered With. — Extrinsic Evidence.</p> <p>If the ballots at an election precinct have the appearance of having been tampered with, the evidence of poll clerks and commissioners may be used before a canvassing board upon a recount to show that the ballots are all void because of the want of signatures of both poll-clerks, each in his own handwriting, upon all the ballots at such precinct, but not to show that the ballots have not been altered, or to show the contents of the ballots; nor can that or other evidence be used to otherwise repel the prima facie case of tampering arising from such appearance of the ballots. If it appear from such evidence that all of such ballots are void for such defect, then the ballots of such precinct cannot be recounted, nor can the result be declared from the certificates made by the officers conducting the election. In such case the election at that precinct is void. If there be some ballots so void, and others not so void, the canvassers must make comparison between the result shown by the certificate and that shown by the ballots. If there is no disagreement between the certificate and ballots, then the votes shown ■ by the void ballots as cast for each of the candidates between .whom recount has been asked, shall be subtracted from the total vote shown by the certificate as cast for them, respectively, and the result shown by the certificate, after such subtraction, shall be taken as the result. If, however, there be disagreement between the certificate result and the result shown by the ballots,-the certificate must be taken as showing the result, without alteration, (p. 88).</p>

<p>1. RailRoad— Master and Servant.</p> <p>A lumber railroad, crudely and unscientifically constructed, the character of which is fully known to a servant who is engaged in operating a locomotive engine upon it, has, in the contemplation of the parties, and, therefore, of the law, certain elements and qualities upon which the servant may rely for his personal safety, and which the master, by the exercise of reasonable care, must maintain, (p. 95.)</p> <p>2. Master and Servant— Beasonable Care.</p> <p>The measure of the duty of a master to his servant is reasonable care, in view of the situation of the parties, the relations they have established, the nature of the business in which the servant is employed, the character of the machinery and appliances used, the surrounding circumstances and conditions and the exigencies which require vigilance and attention, (p. 95.)</p> <p>3. New Trial — Evidence. Preponderance of.</p> <p>A new trial will not be allowed in a case in which only simple issues of fact were raised, dependent upon conflicting oral evidence, thus making the credibility of witnesses an important factor in the case, merely because the verdict is contrary to an excess in the quantum of such evidence, there being direct and positive evidence tending to sustain it, and no controlling physical, admitted or established, facts with which it is inconsistent, (p. 97.)</p> <p>Sanders, Judge, (Absent).</p>

<p>1. Sale oi? Realty. — By Boundary or Acre. — Parol Testimony.</p> <p>A contract for the sale of a tract of land, or a deed conveying a tract of land, specifying the quantity by the words “containing-. acres,” (giving- the number,) and reciting a price which is an exact multiple of the number of acres so mentioned, is presumed to be a contract of sale of the tract in gross, but is ambiguous on its face as to whether it is a contract of sale in gross or of sale by the acre, and parol evidence of the circumstances, which surrounded the parties, and their situation, when the contract or deed was made, and the conduct of the parties in carrying the contract into execution, is admissible as an aid in interpreting such contract or deed. , (p. 103.)</p> <p>2. Sale of Realty — Gross Sale or by Acre.</p> <p>Whether a deed, reciting $4,800 as the price of a tract of land thereby conveyed, and describing it by metes and bounds and as “containing 200 acres and 37 square poles,” is ambiguous on its face, as to whether the sale was in gross or by the acre, quaere% (p. 103.)</p> <p>3. Bale of Realty in G-boss. — Parol Evidence.</p> <p>A case in -which the admissible parol evidence is held insufficient to prove that a contract of sale of land was by the acre, the deed being treated as ambiguous on its face-as to whether the sale was in gross or by the acre. (p. 104.)</p> <p>4. Sale oe Realty. — Sale in Gross — Excess of Acreage — Bescission of Sale.</p> <p>As to the vendor, every sale of land in gross is a contract of hazard as to the quantity of the tract or tracts sold, and he cannot recover on the contract, either at law or in equity, compensation for an excess therein above the quantity which the tract or tracts were, at the time of the sale, supposed to contain. Nor can he have rescission of the contract, on the ground of mutual and innocent mistake as to the quantity, resulting in a considerable excess, when both parties have been ignorant of the area of the land and free from fraud in the execution of the contract, (p. 108.)</p> <p>5. Sale oe Realty, When Rescinded. — Oases Overruled.</p> <p>In so far as they hold that a contract of sale of land in gross may be rescinded on the ground of a mutual and innocent mistake as to the quantity of land in the tract sold, resulting in a large excess or deficiency, no other ground for relief being shown, Western Mining &• Manufacturing Co. v. Peytona Qannel Coal Co., 8 W. Va. 400; Crislip v Cain, 19 W. Ya. 438; Hansford v. Goal Co., 22 W. Ya, 70, and Pratt v. Bowman, 37 W. Va. 715, are disapproved and overruled.</p>

<p>1. Husband and Wife — Suits by Wife, When Husband Party.</p> <p>In an action by the wife for the recovery of damages for personal injuries sustained by her, she may, or may not, at her election, join her husband as co-plaintiff, (p. 135.)</p> <p>2.- PERSONAL Injuries— Wife — Measwe of Damages.</p> <p>When the wife sustains personal injuries, and brings an action to recover damages therefor, she may recover for being prevented from performing and transacting her necessary affairs and business by her to be performed and transacted, if such prevention is the result of the injuries for which she sues. (p. 134.)</p> <p>3. Personal Injuries — Evidence.</p> <p>In an actio.n for personal injuries, where, as a result of such injuries, a surgical operation is necessary to be performed, evidence which shows or tends to show that such operation was attended with great difficulty and dangers, and that comparatively few physicians perform such operation, is admissible, (p. 138.)</p> <p>4. Personal Injuries — Evidence—Ordinary Care.</p> <p>A plaintiff, in an action for damages for an alleged negligence of another, is not required to exercise more care than is usual under similar circumstances among careful persons of the class to which said plaintiff belongs, (p. 139.)</p> <p>5. Personal Injuries — Contributory Negligence — Instructions.</p> <p>When an action is brought to recover damages for personal injuries sustained by the plaintiff on account of the defendant’s negligence, it is not error to omit to instruct the jury as to the law of contributory negligence in an instruction given for the plaintiff, when the court, in giving the defendant’s instructions, instructs the jury fully and fairly on that point, (p. 140.)</p> <p>(5. Personal Injuries — Damages—Instructions.</p> <p>It is not error to instruct the jury that the loss of child bearing power is an element of damage to be considered by them, in an action for personal injuries sustained through the negligence of the defendant, when such loss is the reasonable and probable result of such negligent act. (p. 141.)</p> <p>7. Street Oar Companies — Care of Passengers.</p> <p>Where a street car company stops its cars for the purpose of receiving passengers, it is charged with the highest degree of care to see that all passengers lawfully entering its cars get to a place of safety thereon before starting its cars. (p. 142.)</p> <p>8. Juky Trial — Contributory Negligence.</p> <p>A caso -which was proper to he submitted to the jury on the question as to whether or not the plaintiff was guilty of contributory negligence, (p. 145.)</p> <p>9. Personal Injuries — Damages not Excessive — Jury Trial.</p> <p>In an action to recover damages for personal injuries, the court will not interfere with the verdict of a jury, on the ground that the damages found are excessive, unless the finding is so manifestly unjust as to show partiality, prejudice or misapprehension on the part of the jury. (p. 145.)</p>

<p>Error to - Circuit Court, Lewis County.</p> <p>■ Oley Moore and others were convicted of murder and bring error.</p>

<p>1. Assumpsit - Plea of Payment — Practice.</p> <p>In an action of (mumpnt plaintiff filed his declaration at October rules, 1003, and the common order was entered thereon by the clerk. At November rules following, the defendant filed a plea of payment-, answering part of the plaintiff’s claim, and by an addition to the plea, acknowledged itself indebted for the residue of the plaintiff’s claim, and offered to confess judgment therefor, and the clerk made an entry of a plea of the general issue by the defendant and of the common order confirmed, which entry at the ensuing term was stricken out by the court, and the plaintiff did not appear at rules after the filing of the plea of payment and either demur or reply thereto, or “sign judgment” by entering a nolle posequi for the part of the plaintiff’s claim not answered by the plea of payment. Held: These proceedings at rules did not operate as a discontinuance of the action, and the clerk properly placed the case on the docket for the ensuing term of court, (p 150.)</p> <p>2. Assumpsit — Continuance.</p> <p>Under the circumstance of this cases the defendant was not entitled to a continuance asa matter of right at the ensuing term of Oourt. (pp. 154, 155.)</p> <p>3. Plea of Pending Suit Ro Defence — Pleading*.</p> <p>The pendency of a suit in equity is not ground of defense to an action at law, for the same cause of action, pending at the same time, either under the general issue or plea in abatement. (p. 150.)</p> <p>4. Plea — Must be Certain.</p> <p>In an action at law a plea in abatement, of a former suit pending, which does not- aver whether such former suit is pending at law or in equity, is bad for uncertainty (p. 150.)</p>

<p>1. Equity Juiusdiction — Injunction—Negative Covenants in Deeds— IH-nfor cement.</p> <p>Courts of equity will enforce, by injunction, negative covenants ancl clauses in deeds, restricting the use of real estate, though they do not, in law, constitute easements or covenants running with the land; but the jurisdiction is discretionary and is governed by the principles applicable to the enforcement of specific performance of contracts, (pp. 160, 161.)</p> <p>2. Equity Jurisdiction — Negative Covenants in Deeds.</p> <p>Equity will not, enforce such covenant if it appears that, since the conveyance was made, the general conditions and surroundings of the property, continuation of which was contemplated by the parties, have been so changed, otherwise than by the act of the covenantor, as to render the enforcement of the covenant inequitable and burdensome to him and defeat the purpose of the restriction. But conditions existing at the time of the conveyance will not, in the absence of fraud or other vitiating element, constitute ground of defense to such suit. (p. 161.)</p> <p>3. Ubauty — Restrictions on Against Public Policy.</p> <p>Permanent restrictions upon the use of real estate being contrary to the policy of the law', courts of equity, in enforcing compliance with rostriclivc* covenants, limit the decree by 'the duration of the conditions and relations which form the basis of the equity calling for such enforcement, (p. 165.)</p>

Bill by A. L. Taylor and others against the county court of Braxton county and others. Decree for plaintiffs, and defendant, Tulley, appeals.

<p>1. WRITING Under Seal — Deed—Parol Evidence.</p> <p>Parol evidence, to prove a conveyance to be a mortgage, -which is on its face an absolute deed, must be clear and unquestionable, (p. 185.)</p> <p>2 Proof — Failure of.</p> <p>A case in which the evidence does not sustain the allegations of plaintiff’s bill, (p 187.)</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Florence Yock against John C. Mann and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. IjAndlokd and Tbnant — Proof of TUle — Unlawful Detainer.</p> <p>In an action of unlawful detainer brought by a landlord, no proof of title is required, since if a tenant has once recognized the title of the plaintiff and treated him as his landlord by accepting a lease from him ho will not be permitted to dispute his landlord’s title, (p. 200.)</p> <p>2. Unlawful Detainer — Landlord and, Tenant.</p> <p>Where the lease is by parol it is not necessay for the landlord to give any evidence of his title anterior to the lease; an acknowledgment by the defendant that ho went into possession under the plaintiff is sufficient to entitle plaintiff to recover the possession, (p. 201.)</p> <p>3. Landlord and Tenant — Attornment. •</p> <p>A tenant in possession cannot disclaim his landlord’s title without surrendering- possession to him. He cannot collude with, and attorn to another claiming a hostile title to the prejudice of his landlord, (p. 202.)</p> <p>4. Landlord and Tenant.</p> <p>The rule is well settled in this state that a tenant is not allowed to dispute his landlord’s title after having accepted possession under him. (p. 206.)</p>

<p>1. Tax Sale.</p> <p>Failure to make out and swear to a list oí lands delinquent for taxes by the first Monday in June, as required by Code, 1887, chapter 30, section 18, will not invalidate a deed under a tax sale. (p. 307.)</p> <p>3. Tax Sale.</p> <p>Failure to post a list of lands delinquent for taxes as required by section 30, chapter 30, Code 1887, will not invalidate a tax deed, (p. 307.)</p> <p>3. Tax Sale — Irregularities Cured by Deed.</p> <p>Failure to present a list of lands delinquent for taxes to the county court at the levy term as required by Code 1887, chapter 30, section 31, and presenting it at a later term, will not invalidate a tax deed. (p. 208.)</p> <p>4. Tax Sale.</p> <p>The fact that a list of lands delinquent for taxes was acted on at a special term of a county court, in the call for which no reference was made to action on such- list, will not invalidate a tax deed, (p. 208.)</p> <p>5. Tax Sale — Delinquent Lands.</p> <p>A report of sales of delinquent lands was not required by Code 1887, chapter 31, sections 10 and 12, to have a column for the day of sale, or to state the particular day of sale. (p. 209.)</p> <p>6. Tax Sale — Irregularities Cured by Deed.</p> <p>The fact that an affidavit to a list of sales of delinquent land contains no venue and does not show of what county the notary is a notary will not invalidate a tax deed. (p. 210.)</p>

<p>1. Exemption Laws — Lex Fori Governs.</p> <p>The exemption, law of another State pertains to remedy, and will not he enforced in this State, (p. 212.)</p> <p>2. Exemption Laws — Injunction.</p> <p>Injunction does not lie against a garnishment in an action before a justice of money owing by the garnishee to anon-resident debtor, on the ground that such money is exempt by the law of the state of residence of such debtor, (p. 216.)</p> <p>3. Equity Jurisdiction — Multiplicity of Suits.</p> <p>The fact that a person is sued or garnished by different persons on distinct and-separate demands, having no connection, or the fact that the same question of law may arise in all the cases, does not give equity jurisdiction to enjoin the suits on the principle that equity takes jurisdiction to avoid multiplicity of suits, (p. 215.)</p> <p>4. Equity Jurisdiction — Injunction—Justice of Peace Interested, in Suits.</p> <p>Equity has no jurisdiction to enjoin a justice of the peace from acting in an action before him because of his interest in the result, (p. 215.)</p> <p>5. Injunction— Suits for Same Purpose in Different States.</p> <p>Injunction will not lie to restrain the prosecution of a garnishment in an action for debt before a justice of this State on the .ground that, in another state, an injunction is later sued out and is pending enjoining the garnishee from paying the money, under any judgment of such justice, (p. 216.)</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by Orange J. Loycl against Frank Blackburn and •others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Election Precinct — Establishment of — Statute Construed.</p> <p>Section 6 oí chapter 3 of the Code, relating- to the change, division or consolidation of election precincts, provides that no change, division or consolidation shall be made by the county court within ninety days preceding an election, and that no such change, division or consolidation shall be valid without giving' due notice at least one month before any election by publication, &c., held, that the word “election,” as used in said provisions of the statute, means an election held under general law and not an election held under a special act of the legislature, establishing- an independent school district, upon the question of consenting- to the creation of such school district, (p. 224.)</p> <p>2. Independent School Distbict — Election—Canvassing Bomd.</p> <p>Under the act of the legislature, (chapter 73, Acts 1903,) the Board of Education of Beaver District therein mentioned is the proper board to canvass the returns, and ascertain the result, of the election held under said act, upon the question of consenting to the creation of the independent school district therein mentioned, (p. 223.)</p> <p>3. Election — Appointment of Election Commissioners.</p> <p>If the tribunal required by law to appoint election commissioners fails to appoint such commissioners to conduct an election at a legally constituted voting- place, the qualified voters present on election day (not less than ten in number) may elect such commissioners in the manner prescribed by section 7' of chapter 3 of the Code. (p. 226.)</p>

<p>1. Criminal Law — Pleas—Discretion in Court.</p> <p>In a criminal case, the defendant waives his right to plead any matter in abatement by pleading- in bar, but the court has discretion to allow the plea in bar to bo withdrawn and the dilatory plea entered, (p. 231.)</p> <p>2. Criminal Law — Plea in Abatement.</p> <p>If, in such case, the plea of not guilty is withdrawn by leave of the court, the plea in abatement must be received, if sufficient, (p. 232.)</p> <p>3. Criminal Law — Plea in Abatement— Certainty.</p> <p>A plea in abatement in a criminal case must be certain to every intent, (p. 233.)</p> <p>4. Criminal Law — Plea.</p> <p>If the irregularity, relied upon as matter of abatement, relate to-the constitution or organization of the grand jury, the plea must show in what the irregularity consists, otherwise it will be lacking in the element of certainty, (p. 233.)</p> <p>5. Criminal Lav — Plea, in Abatement, Insufficient.</p> <p>A plea in abatement, charging generally that no writ of venire facias was issued and served within ,the time, and in the manner prescribed by the statute, (referring- to them,) and that the body of men who had professed to be the grand jury which had found the indictment did not constitute a legal grand jury, is insufficient, (p. 233.)</p> <p>0. Grand Jury — Statutory Requirements for Summoning Directory.</p> <p>The statutory requirements, respecting the time of issuing-writs of venire faeias for grand juries and the summoning of grand jurors, are directory, and substantial compliance therewith is sufficient. (p. 233.)</p> <p>7. Criminal Law — Argument of Counsel — Brror.</p> <p>Comment by an attorney for the state in his argument in a felony case, upon the failure of the accused, who has testified in the case, to have his wife testify and corroborate statements of his own as to-matters, said by him to be known to her, is improper; and, if objected to at the time, the refusal of the court to prohibit it and direct the juiy to disregard it, is reversible error, (p. 234.)</p> <p>8. Criminal Law — Witness, Failure to Home Sworn — Brror.</p> <p>If, after verdict, it is shown to the court, upon a motion for a new trial, that a witness for the state had testified, without having been sworn, and that the prisoner and his counsel had had no knowledge of such irregularity until after the verdict was rendered, a new trial must be allowed, although the error was purely inadvertent and accidental, (p. 236.)</p> <p>9. Criminal Law — Instruction to Jury.</p> <p>An instruction, containing- the clause: “The oath of'a juror imposes on him no obligation where none would exist, if no oath had been administered,” should be refused, though the giving of it might not be reversible error, (p. 239.)</p> <p>10. Criminal Law —Instructions.</p> <p>Instructions should be complete in themselves as far as they go, and not adopt others by mere reference, (p. 239.1</p> <p>11. Criminal Law — Self Defense — Instructions.</p> <p>When self-defense is relied upon in a case in which the evidence tends to show that the accused had provoked the combat or difficulty in which the killing- was done, it is error to instruct the jury that he cannot justify his act, if he began, or brought on, the difficulty, without any intent to kill or do bodily injury. The provocation or act which induces the affray must be wrongful, not merely innocent and accidental, to bar the right of self-defense. (p. 240.)</p> <p>12. Criminal Law — Instructions—Manslaughter.</p> <p>The following instruction is .erroneous, because it excludes a verdict of manslaughter: “If the jury believe from the evidence, that at the time of the alleged killing, the defendant and the deceased met, and upon sudden cause of quarrel arising between them, mutually agreed to engage in a personal combat, and did so engage in such combat, and if the jury further believe from the evidence, beyond a reasonable doubt, that during such quarrel the defendant, without the knowledge of the deceased, made use of a deadly weapon, in such a manner as would be likely to cause the death of the deceased, and did so cause it, then the defendant was guilty of murder; and if the jury further believe, from the evidence, that the defendant so used the said deadly weapon, deliberately and with malice aforethought, and with intent to take the life of the deceased, or to do him great bodily harm, then such killing- would be murder in the first degree.” (p. 240.)</p> <p>13. Criminal Law — Instructions—Trial Court.</p> <p>When the state of the evidence in a criminal case tends to prove facts, from which presumptions of guilt arise, under rules of evidence, established by a long- and uniform course of judicial determination, the trial court may properly bring them to the attention of the jury by instructions, aptly and correctly .stating- them. (p. 242.)</p> <p>14. Instructions.</p> <p>Such instructions, if properly framed, neither assume the existence of the facts, from which the presumptions arise, nor interfere with the province of the jury as to the weight of the evidence, (p. 244.)</p> <p>15. Criminal Law — Instructions—Intention Presumed from Acts.</p> <p>It is improper for the court to instruct tire jury that “The law is that a man shall he taken to intend, that which he does, or which is the necessary consequence of his acts.” Such intention is presumed, but not imputed absolutely, (p. 244.)</p> <p>16. Criminal Law — Jv/ry to Apply Law as Gimen.,,</p> <p>In the trial of criminal cases, the jury should apply the law as given by the court, whether it be for or against the prisoner, (p. 242.)</p> <p>17. Criminal Law — Witness—Error.</p> <p>It is not error to permit a witness for the state to explain the meaning and intent of a statement made by him, which has been brought into the case by the prisoner, (p. 245.)</p> <p>18. Criminal Law — Leading Questions — Depositions.</p> <p>The trial court may properly exclude questions and answers in a deposition, when the questions, although containing the phrase “whether or not,” are leading and suggestive of the answers desired and relate to facts of vital importance in the case. (p. 245.)</p>

<p>1. Assumpsit — Dedwation—Failure of Proof .</p> <p>A case in Avhich the eA'idence fails to sustain the allegations of the declaration, (p. 249.)</p>

<p>I. PARTNERSHIP — Sale of Partner’s Interest.</p> <p>One of the partners in a mining partnership may convey his interest in the mine and business without dissolving the partnership. (p. 253.)</p> <p>'2. Partnership — Majority Interests Control Partnership Operations.</p> <p>When members of a mining partnership cannot agree in management those having a majority interest control its management in all things necessary and proper for its operation. Childers v. Neely, 47 W. Va. 70. (p.’ 254.)</p> <p>:3. Partners — Bights of Partners — Sale of Partnership Interest.</p> <p>A member of a mining partnership may sell his interest therein to whomsoever he may without the knowledge or consent of his co-.owners. (p. 254.)</p> <p>4. PaRtkership — Dissolution by Suit — Allegations of Bill.</p> <p>In order to dissolve a mining partnership by decree in equity to-sell the partnership property, the bill must allege clear and good grounds therefor, (p. 255.)</p>

Action by John Mills and the Kanawha Oil Company against the Henry Oil Company and others., Decree for plaintiffs, and defendants J. E. Bartlett and others appeal.

<p>1. Assignee — Suits by on Accounts Assigned.</p> <p>Under section 14 of chapter 99 of the Oode of 1899, an assignee of an open account can maintain an action at law thereon in his own name. (p. 265.)</p> <p>2. Assignment op Account — Consideration for Assignment.</p> <p>In such case, the debtor will not be permitted to defeat the-action by showing want, or inadequacy, of consideration for the assignment, (p. 265.)</p> <p>8. Infant - Suit Against for Purchase Money.</p> <p>In an action at law against an infant for the purchase money of property sold to him, some of the proceeds of which he still has, the defendant may have the benefit of his plea of infancy without having- returned, or offering to return, such property or proceeds, (p. 266.)</p> <p>4. Infanost — Successful Plea of Dismisses Suit.</p> <p>When, in such case, the proceeds of the property so purchased have been attached in the hands of a third party, the plea of infancy, sustained by proof, annuls the contract, defeats collection of the debt, dissolves the attachment and releases the funds, (p. 267.)</p> <p>5. Infants— Necessaries not Defeated by Plea of.</p> <p>Contracts for necessaries, such as food, lodging, clothing and other things essential to life and comfort- and in keeping with an infant’s station in society, cannot be avoided on the ground of infancy, (p. 267.)</p> <p>6. Infants in Business — Contract Voidable — Necessaries.</p> <p>As the law does not permit an infant to irrevocably bind himself by contract further than is absolutely necessary for his own good, and the carrying- on of a trading business involves the making of contracts on his personal responsibility, articles furnished him for use in such business and services rendered him in connection therewith are not deemed necessaries, and he may disaffirm his. contracts therefor, although he. derives his living solely from such business (p. 267.)</p> <p>7. Appellate .)uhisutction — Amount in Controversy.</p> <p>The test of appellate jurisdiction in this Court, when the plaintiff below is the plaintiff in error, and the matter in controversy is pecuniary, is the amount actually demanded in the court below, less the amount recovered, if anything, and not merely the amount, or additional amount, which ho shows himself to,be entitled to recover, (p. 270.)</p> <p>S. Aitjoal — Ovéis to Party Bubetantially Prevailing.</p> <p>When the amount in controversy is sufficient to give appellate jurisdiction, hut the plaintiff in error has been prejudiced in a sum less than the jurisdictional amount, the judgment will be reversed, but the costs in this Court will be adjudged to the defendant in error as the party substatially prevailing* (p. 270.)</p>

<p>1. Sylt.abus Approved.</p> <p>Point 1, of Syllabus, Lazzett v. (Harlow, 4-1 West Virginia 466. reaffirmed. (p. 277.)</p> <p>2. Ixjcxctiox — Conflict of Title — fiolrency of Defendant.</p> <p>A court of equity ■will not enjoin the cutting and removal of timber from land when there is conflict of title to such land between the plaintiff and the defendant, the solvency of the defendant being- well established, (p. 277.)</p>

<p>1 ■ Oil and Gas in Xatubai. Statu — Realty.</p> <p>Petroleum oil and natural gas are minerals, and in t.lieir places are real estate and part of the land. (p. 281.)</p> <p>2. Oír. and Gas — JReser cations in Deed of Same— Vested lístate in Grantor.</p> <p>A deed conveying a tract of land contains the clause: “But it is expressly understood and agreed that there is reserved from and not included in the above sale or conveyance seven-eighths of all and any oil and gas that may be on, in or under said land, with full right and privilege to said Bennett, his heirs and assigns, to develop and operate the same.” This excepts, and does not pass lo the grantee, the oil and gas in place in the land, and the oil and gas remain vested in the grantor as an actual vested estate and property, and are not an incorporeal hereditament in him, nor a mere license to produce oil and gas, and title in the grantor to the oil and gas is not in abeyance to vest only when the oil and gas shall be developed and brought to the surface by the grantor. A subsequent conveyance by such grantor of such oil and gas vests, in the grantees lilre estate and property in the oil and gas as was. vested in such grantor, (p. 283.)</p> <p>3. Oil and üas — UexervaMoim of in Deed Construed.</p> <p>In a deed conveying land a reservation of the petroleum oil and natural gas in it has the same effect as an exception of the same would have, if such is the plain intent, (p. 382 )</p> <p>4 Oil AND Uas — When Havered From Ownership of Hurf ace — Corporeal Property.</p> <p>Petroleum oil and natural gas may be severed from the ownership of the surface by grant or exception, and are then a separate corporeal property from the surface, (p 282.)</p>

<p>OuttiNG TimbbR— Injunction — Holcmcy of Defendant.</p> <p>An injunction will not lie against cutting-timber, if the party committing- the trespass is solvent. Otherwise where he is not solvent. (p. 385.)</p>

<p>1. Municipal Corporations — Wot Insurers Against Accidents.</p> <p>A municipal corporation is not an insurer against accidents upon streets or sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the street is in a reasonably safe condition for travel, in the ordinary modes, with ordinary care, by day or night; and whether so or not is a practical question to be determined in each case by its particular circumstances. Yeager v. Gity of Bluefield, 40 W. Va. 484. (p, 289.)</p> <p>2. Municipal Corporations — Evidence—Presumption of Iamo.</p> <p>Where the evidence is without conflict, and it is clear and conclusive therefrom that a particular obstruction existed upon the sidewalk of the street of a municipal corporation, it is a question of law as to whether or not the obstruction was such as to render the sidewalk not in a reasonably safe condition, and thereby make the corporation liable in damages to a person injured by reason thereof, (p. 289.)</p> <p>3. Municipal Corporations — Defectme Hidetoalh.</p> <p>Where a municipal corporation allows one of its sidewalks, which is about ton feet in width, to become obstructed by two stop boxes or water plugs placed thereon standing in the walk three feet from the side thereof next to the gutter, and projecting- above the surface of the side-walk, one, two and three-fourth inches, and the other, one and three-fourth inches, and a few inches apart, and each box having a cap thereon, larger than the box itself, and slightly extending over it, it is such an obstruction as to render the walk not in a reasonably safe condition for the traveling-public, and makes the corporation liable in damages to a person sustaining an injury by reason thereof, (p. 291.)</p> <p>4 Municipal Corporations — Allegationx Necessary in Declaration Against.</p> <p>In an action against a city or town to recover damages for injuries sustained by reason of an obstruction upon the sidewalk of one of its streets, it is essential to allege and prove that the street, at the time when, and the place where, the accident occurred,was treated and controlled by the municipality as a public street or thoroughfare, (p. 294 )</p> <p>5. New Trial — Deductions from Bvidenccr — -Province of Jury</p> <p>When some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances .and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict. But to warrant a new trial in such case, the evidence must be plainly insufficient to support the verdict, (p. 295.)</p> <p>6. Municipal Corporations — Accident on Streets — Contributory Negligence of Child.</p> <p>Where a boy five years old sustains an injury upon the sidewalk of a city or town, by reason of an obstruction thereon, and sues to recover damages therefor, he is not chargeable with failing to exercise that ordinary care which a reasonably prudent person would exercise under similar circumstances. Such boy cannot be guilty of contributory negligence, (p. 289 )</p> <p>7. Municipal Corporations — Instructions—No Conflict in Bvidence.</p> <p>Where a binding instruction is given for the plaintiff in an action against a municipal corporation for injuries sustained because of an obstruction on the sidewalk of its street, which omits to tell the jury that, the plaintiff must prove that the street was controlled and treated "by the authorities of the corporation as a public street or thoroughfare, it is not erroneous, when the evidence upon that point is without conflict, and where the fact is clearly established and not disputed by the evidence of the defendant; (p. 296.)</p> <p>8. Instructions — Misleading Wot to be Giren.</p> <p>Instructions which do not correctly propound the law applicable to the case, a.nd which are calculated to mislead the jury, should not be given, (p.299.)</p>

<p>Stkwet Railways — Actions Against — Improper Instruction — Contributory Afegliyeuce.</p> <p>In an action [or injuries sustained by a passenger while attempting to alight- from a street car, it is error to give to the jury an instruction, in which, after lolling them, that under, the law the defendant is held liable for the slightest negligence, 1-hoy are instructed that the defendant must “repel by satisfactory proof every imputation of such negligence,” when the facts are not such as to create a presumption of negligence against the defendant, and east the burden upon it to disprove negligence; and also, when the contributory negligence of the plaintiff is involved, (p. 802.)</p>

<p>1. Telephone Companies — Use of Gounty Hoads for Telephones.</p> <p>The -word “companies” as used in chapter 96 of the Acts of the Legislature of 1891 includes an individual or individuals as well as incorporated companies. Under that act the county court of a county was authorized to consent to the placing of poles and wires for a telephone for public use along a county road by an individual (p. 309.)</p> <p>2. Telephone — Gounty Hoads — Abutting Land Owners.</p> <p>A reasonable use of a public highway for the purpose of placing poles and wires for a telephone for public use, under legislative authority, is not an additional servitude upon the fee of the abutting land owner in such highway, (p. 310).</p>

<p>1. SUMMONS — Defect Therein.</p> <p>A summons, commencing an action in a superior court of general jurisdiction, materially defective in respect to time or place of its return, tip which objection has been taken in proper time and manner and preserved by exception, will be held void and quashed in a direct proceeding- in the same actio$, to reverse for the error of the trial court in refusing to quash it. (p. 316.)</p> <p>2. Defective Summons — Ammdir.eid Thereto.</p> <p>A summons, commencing' an action in a court of record cannot be amended in any substantial particular, unless the statutes of amendment authorize it. (p. 31t>.)</p> <p>■3. Defective Summons — Not Waived by Plea to Merits, When.</p> <p>A defect in such summons is not waived by pleading- to the merits after the overruling of a motion to quash, to which an exception has been fallen and made a part of the record, (pp. 318, 320.)</p> <p>4. Defective Win's — Appearance Thereto — Record.</p> <p>It is not necessary for a defendant, in appearing in a co urt of record to quash a defective writ, commencing an action, to ¡cause the record to recite that his appearance is for that purpose only, in order to avoid a waiver of defect in the jurisdiction of the court. In such case, whether an appearance is general or special is to be determined by the record as it stands at the time the motion is made, (p. 323.)</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action A. S. Eay, administrator of Annie S. Ray, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bill to Remove Cloud ebom Title. — Allegations Therein — Proof .</p> <p>In a suit brought to remove a oloucl from the title to real estate, and to enjoin the prosecution of an action of ejectment brought to recover the same,- one of the indispensable allegations of the bill is, that the plaintiff has title to the land, and, if an answer is filed denying such allegation, or if the defendants, or some of them, who are claiming' adversely to the plaintiff, are infants, the plaintiff must prove title, (p. 346.)</p> <p>2. Bill in Equity — Infants,</p> <p>A bill in equity.cannot be taken for confessed as to infants, (p. 346.) '</p> <p>3. Bill in Equity — Pleadings—Infants.</p> <p>Admissions in the answer of adult defendants do not bind infant co-defendants, (p. 346.)</p>

Action by Longacre Colliery Company against T. M. Creel. Judgment for plaintiff before a justice was reversed on appeal, and plaintiff brings error.

<p>Error to Circuit Court, Clay County.</p> <p>Action by Samuel Stephenson and G. W. Patrick, for use of John J. Melton, against David Collins and William. Thompson, Jr. Judgment for plaintiffs, and defendant Collins brings error.</p>

<p>1. EXECUTORY CONTRACT CONSTRUED.</p> <p>An entire executory contract of sale may be divisible in the execution thereof so as to vest title to parts of the property in the vendee as they are delivered, and, whether in any case such partial transfer of title takes place, is a question of intent, (p. 367.)</p> <p>2. Contract Construed — Whan Title Passes.</p> <p>The point at which title passes in the progress of the execution of a contract of sale is a question of intent to be gathered from the terms oi the contract, the nature of the property, its condition and situation, the purposes for which the contract was made, and the circumstances surrounding- the parties, when the terms used are such as to make them admissible in evidence, (p. 368.)</p> <p>3. Contract Construed.</p> <p>Though generally a sale is not complete until the property has been ascertained and designated and made certain as to its identity, quantity, quality and price, title will vest in the vendee without final and complete ascertainment of the aggregate quantity and price, if the intent that it shall do so be made manifest, (p 369.)</p> <p>4. Title by Contract — When it May Pass.</p> <p>Title to property may pass under a contract of sale, though there be neither payment of purchase money nor complete delivery of possession, (p. 369.)</p> <p>•5. Contract Construed — Improvements.</p> <p>' If, by the terms of an executory contract of sale, the vendee is required to expend money, and perform labor, upon the property so as to change its character and situation, title to it as so altered will vest in the purchaser, unless a contrary intention be shown, (p. 370.)</p> <p>•0. Contract Construed — Timber—Vendor’s lien.</p> <p>Under a contract of salo of the timber on a tract of land to be cut and removed by the vendee within a specified time and measured and paid for each month and before removal, as the work progresses, title vests in the purchaser as the timber is cut down, and the vendor has a lion thereon for the purchase money, (p. 371.)</p> <p>7. Conrtact Construed — Timber Contract — Waiver by Vendor.</p> <p>The purpose of a clause in such contract providing' that, in case the purchaser shall fail to have the timber measured and pay for the same each month as cut and hauled, he shall forfeit all right and title to the timber whether out or not and all payments made on account thereof, is to prevent the accrual of a largo indebtedness under the contract and the cutting of large quantities of timber without paying for it; and, if the vendor suffers large quantities to be cut down without such monthly measurement and payment, he will be deemed to have waived the benefit of such clause, (p. 371.)</p> <p>'8. Contract — Equity Control'of.</p> <p>Equity will not permit the perversion of a forfeiture clause in a contract to a use or purpose for which it was never intended, (p. 372.)</p> <p>9. Contract’ — Waiver of Forfeiture Clause by Implication.</p> <p>By permitting the accomplishment of the general result for the prevention of which a power of forfeiture has been inserted in a contract, and standing by in silence while large expenditures are made in the prosecution of the work, after the accrual of the right of forfeiture, under the belief that it will not be exercised, the parly having such right of forfeiture waives it. (p. 371.)</p> <p>10. Decedent’s Estate — Preservation of by Equity — lieeeiver.</p> <p>Creditors of a decedent’s estate may resort to a court of equity for the ascertainment and preservation of the property and assets of the estate and subjection of the same to the payment of the debts against, it, when the personal representative refuses to perform his duty in the premises, and, if necessary to full and adequate relief, a receiver may be appointed to take charge of the property, (p. 373.)</p> <p>11. Decedent’s Estate Preserved — Receiver—Personal Representative.</p> <p>A receiver may be appointed to take charge of, care for, put in marketable condition and sell, timber belonging' to a decedent’s estate, lying on the lands of a stranger, subject to his purchase money lien, at the instance of creditors, when the personal representative has refused to do so. (p. 3/3.)</p>

<p>Express Trust — Oral Evidence. Oral evidence, to establish an express trust must be clear and unquestionable. (p. 379).</p> <p>2. Resulting Trust in Judicial Sale— General Warranty — Error.</p> <p>When a purchaser oí land in his own name at judicial sale, is required by decree to convey the land to the debtor as having- purchased it in trust for him, it is error to require the purchaser to convey the land to the debtor “With covenants of general warranty.” (p. 384).</p>

<p>1 Life INSURANCE- — Application Part of Policy — Policy Control.</p> <p>Where a life insurance policy provides that the application for the insurance shall be a part of the policy, then the policy and the application should bo construed together, and if there is a conflict between the policy and the application, the provisions of the policy should control, (p. 387.)</p> <p>3. Life Insurance — Construction— Warranties. — Representations.</p> <p>A life insurance policy should be strictly construed ag'ainst the insurer, and if it contains contradictory terms, or is so framed as to leave room for construction, rendering- it doubtful whether the parties intended the answers of the assured to the questions propounded in the application to be warranties or representations, the court should lean against that construction which imposes the obligation of a warranty upon the assured, and hold the answers to be representations, (p. 388.)</p> <p>3. Life Insurance — Pule of Practice — Burden of Proof.</p> <p>When an action is brought upon a life insurance policy, which provides that the application shall be made a part of the policy, and the declaration is filed under section 61, chapter 135, of the Code, 1899, and the defendant files a statement of defense under section 64 of said chapter, alleging that the assured made false and fraudulent answers to certain questions propounded to him in the application, and the plaintiff replies generally thereto, the burden is upon the defendant to prove the allegations of its statement of defense, by a preponderance of the evidence, (pp. 390, 391.)</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by F. A. Chapman against the Liverp'ool Salt & Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. DECREE — .Motion to Meterse — Duty of (Jireuit Court.</p> <p>When a motion is made under section 5, chapter 134, Code, to reverse a decree' pronounced upon a bill taken for confessed, the court before which such motion is made should reverse the decree-for an error for which this Court might reverse it, a-nd give such decree as ought to be given upon the record as it exists at the time the motion is made. '(p. 405.)</p> <p>2. Bill Confessed — Benersal of Decree, Thereon — Defendanth not Allowed to Answer.</p> <p>Upon the reversal of such decree, the defendants are not entitled to file their answers and make defense to the bill, (pp 406, 407.)</p> <p>3. Bill Taken bob Confessed — Decree.</p> <p>It is proper to take a bill for confessed as to all defendants thereto-who have been personally served with process, or who have appeared in the cause and have failed to answer or make an issue therein, (p. 408.1</p> <p>4. Specific Pekfobmance — Decree—liehearing—Non-liesident Defendants.</p> <p>In a suit for the specific performance of a contract, where defendants have been proceeded against as non-residents by order of publication, and have appeared in the cause, but have not made defense therein, they are not entitled to have a rehearing, upon a petition filed for that purpose, on the ground that they were proceeded against as non-residents, and were not personally served with process. (p. 409.)</p> <p>5. Specific PERFORMANCE Asainst Hbibs — Answer of Administrator. .</p> <p>In a suit brought to enforce the specific performance of a contract, where the party with whom the contract is alleged to have been made, and against whose heirs the contract is sought to be enforced, is dead; and where the administrator and heirs of the decedent are made parties defendant, an answer filed by the administrator, contesting- the right of plaintiff to have specific performance, and denying the allegations of the bill, does not enure to the ■benefit of his co-defendants, (p 415.)</p>

<p>1. Condemnation or Land — Compensation is Market Value.</p> <p>In a condemnation proceeding by a railroad company to take the whole of a lot of land for the purposes of its road bed and station buildings, the compensation to be allowed the defendant for such land is, ordinarily, its market value at the time of its appropriation, without any deduction for benefits or appreciation in value, general and common to the community in which the land is, shared in by all property along the line of the road, and due to the prospect of its construction, (p. 421.)</p> <p>2. Condemnation oe Land — Market Value Defined.</p> <p>The market value in such case is the price for which the land could be sold in the market by a person desirous of selling-to a person -wishing to buy, both ireely exercising' prudence and intelligent judgment as to its value, and unaffected by compulsion of any kind. (p. 428.)</p> <p>'8. Condemnation of Land — Market Value.</p> <p>Such value is to bo determined by the same considerations that enter into a sale between private parties, namely, the availability of the land for all valuable uses to which it is adapted, having regard to tho existing- business or wants of the community, or such as may be reasonably expected in tho immediate future, (p. 430.)</p> <p>4. Condemnation oe Land — Utile of Aseertaining Market Value.</p> <p>What is termed tho market value of property in the law of eminent domain is not a value fixed by concensus of opinion in the ■community in which the land is or among business men or dealers in real estate who are familiar with it, but is a value to be fixed by the jury upon consideration of all the evidence in the case, including the knowledge of the jiroperty which they have acquired by their view of it. (p. 430.)</p> <p>•h. Condemnation oe Land — Witnesses—Evidence.</p> <p>The opinions of persons residing near the property and who have known it for a considerable period of time, though not dealers in real estate nor specially informed as to prices, are admissible evidence on tho question of its value, (p. 432.)</p> <p>'6. Condemnation oe Purchase Priee.</p> <p>The price paid for the land by the defendant is admissible evi dence of its value, xirovided the purchase -was not remote from the apxiropriation in pioint of time. . (p. 432.)</p> <p>.7. New Trial — Motion for, When Refused.</p> <p>A trial court may, in its discretion, refuse to set aside a verdict •and grant a new trial, when the application is based only on the desire of the parties to have another trial, (p. 433.)</p>

<p>1. Municipal CORPORATION — Jail—Unsanitary Condition — Damages•.</p> <p>A municipal corporation is not liable for injuries to a person occasioned by the unsanitary condition of its prison while he is confined therein for violation of a city ordinance, (p. 435.)</p> <p>2. Municipal Coporation — Prison.</p> <p>The maintenance of a prison is the exercise of a purely governmental power, and a municipal corporation is not liable for injuries caused by negligence or omission of duty on the part of its officers and agents, respecting its prison or persons confined there in. (p. 436.)</p> <p>3. Parent and Child.</p> <p>A father cannot maintain an action in his own right for damages on account of the negligent killing of his child, (p. 436.)</p>

<p>Appeal from Circuit Court, Mineral County.</p> <p>Action by John Miller against the Monumental Savings & Loan Association and others. Decree for plaintiff, and defendant loan association appeals.</p>

<p>1. Forfeited Lands — Tax Titles — Tender of Purchase Mo’ney.</p> <p>In a bill by the state to sell forfeited land and annul a tax deed constituting- title hostile to that of the state, it is not necessary that there should be a tender by the State of the taxes paid by the tax purchaser, under section 25, chapter 31, Code. (p. 451.)</p> <p>rá, Forfeited Lands — Conflicting Titles to he Settled in Suit to Sell.</p> <p>Conflicting- titles to land may be adjudicated in a suit in equity by the state to sell forfeited land under jurisdiction given by chapter 105 of the Code. (p. 451.)</p> <p>3. Tax Title — Deed Void for Irregularities.</p> <p>A tax deed made in 1870 is void,' because there -was no affidavit to the list of sales of delinquent lands, and the list was not returned to the recorder’s office within ten days, and no note of its return was made by the recorder, and there was no surveyor’s report. (p. 452.)</p> <p>4. Tax Title — Deed Must he Acknowledged or Proven.</p> <p>A tax deed must be either acknowledged or proven before it can be recorded. If recorded without such acknowledgment or proof, it passes no title (p. 452.)</p> <p>5. Statute Construed.</p> <p>Sections 25 and 53, chapter 31, Code 1899, are not retroactive. They do not cure void tax deeds made prior to the enactment of the provisions therein, (p. 454.)</p> <p>6. Quaere. Can the Legislature pass an act curing defects in a past</p> <p>tax deed which rendered it void by the law in force at its date? (p. 457.)</p> <p>7. Tax Sale — Title of Purchaser and Former Owner Hostile.</p> <p>The title of the purchaser at a tax sale is not the same as that of the owner in whose name the land was sold. They are separate, hostile claims, with no privity between them. (p. 457.)</p> <p>8. Tax Sale — Void Tax Deed no Protection to Former Owner.</p> <p>If a tax deed is void, passing- no title, and the owner in whose name the land was sold omits to keep the land on the tax books in his own name, his title will be forfeited for five years omission. Payment of taxes in the name of the tax- purchaser will not prevent such forfeiture, p. (457.)</p> <p>9. Tax Deed Not a Grant.</p> <p>A tax deed is not a “grant” under the second classification of persons entitled to transfer of State title in Art. 13, section 3, of the Constitution; but it is good “claim” and “color” oí title under the first and third classifications of said section. (p. 460.)</p> <p>10. VENDOR AND VENDEE.</p> <p>Possession by a vendee under an executory contract of sale of part of a tract of land is the possession of the vendor, (p. 462.)</p> <p>11. Actual Possession — How Far it Extends.</p> <p>Actual possession within one of two or more adjoining tracts of land of the same owner is possession of all of them. (p. 463.)</p> <p>12. Vendor and Vendee — Actual Possession — Sale of, What Transferred.</p> <p>When one in actual possession of a tract of land conveys legal title to that portion on which is the actual possession, his constructive-actual possession of the residue of the tract ceases. It is not so, if the owner sells such portion by executory contract, (p. 464.)</p> <p>13. Fokeeited Lands — Possession.</p> <p>The possession to call for transfer to one title of another title forfeited to the State need not be by the person himself claiming such transfer, but may be by a tenant or vendee under an execu-tory contract, (p. 466).</p> <p>14. Quaere. A man owns a tract of land. He conveys the legal title</p> <p>to part of it to another man. The grantor is not in actual possession of the residue, but the owner of the part conveyed away is in actual possession of his pai't. Does the possession of such part constitute possession of the l'esidue for the owner of the residue, so as to enable that owner to take the benefit of a foi-feited titl e under the Constitution, Article 13, section 3? (,p. 465.)</p> <p>15. Forfeited Lands — Transfer of Title From, State, Conditions.</p> <p>To enable one to take the benefit of a transfer of a forfeited title to land under Art. 13, section 3, of the Constitution, it is not required that he shall be, by payment of taxes and possession, in a condition to take the benefit of such transfer at the date when forfeiture vests title in the State. If he shall be in such condition at any time while title remains in the State, he gets such transfer, (pp. 466, 467.)</p> <p>16. Constitution.</p> <p>Article 13, section 3, of the Constitution, is not repugnant to amendment 14 of the United States Constitution, (p. 468.)</p> <p>17. Adversary Possession — Runs Against State.</p> <p>The statute of limitations under adversai-y possession runs against the State as to its land not used in govei'nmental administration, (p. 469.)</p> <p>18. Forfeited Lands.</p> <p>When the title of the State to land vested in it by forfeiture has been transferred to a person by force of section 3, Art. 13, of the Constitution, the State cannot sell the land as forfeited, by proceedings under chapter 105 of the Code. (p. 459.)</p> <p>19. Forfeited Lands — Proceedings to Sell by State — Limitation.</p> <p>The State cannot have a decree to sell land as forfeited in a proceeding to sell it under chapter 105 of 1he Code, .when the state has made one claiming- the land a party and has brought his claim before court for adjudication, and contests his right, and his title is found superior to that of the State by reason of the statute of limitations, (p. 469.)</p> <p>20. Tax Deed is Good Color of Title.</p> <p>A void tax deed is- good color of title both for the purposes of section 3, Art. 13 of the Constitution, and the statute of limitations, (p. 470.)</p> <p>Sanders, Judge, Absent.</p>

<p>1. Continúan cu — In Discretion of Trial Court.</p> <p>The action of a trial court, in passing upon a motion for a continuance, will not be reversed, unless plainly wrong, (p. 474.)</p> <p>2. Dispositions — Refusal to Read.</p> <p>A case where the court properly refused to read depositions taken during the term, and after the cause had been submitted for decision upon its merits, (p. 474.)</p> <p>3. Pleading — Affirmative Relief Asked in Answer — Burden of Proof.</p> <p>Where an answer is filed praying for affirmative relief, and, in addition to denying the allegations of the bill, sets up only such new matter as could be set up in defense to plaintiff’s bill, no special reply under section 35, chapter 125, Code, is required, but a general replication puts defendant upon proof of such new matter, (p. 478.)</p> <p>Cox, Judge, Absent-</p>

<p>1 Husband and Wine— Creditor of Husband.</p> <p>Where a husband buys land in his own name and suit is brought by his creditor to subject the land to the payment of the husband’s debts, the uncorroborated evidence oí the husband is, alone, insufficient to establish an express trust in favor of his wife in such land arising by parol agreement between such husband and wife. (p. 486 )</p> <p>2. Husband and Wife— Mala Hides Presumed.</p> <p>In such case (here is prima, facie a presumption of mala fieles as to such agreement, (p. 487.)</p> <p>3. Husband and Wife — Presumption of Gift.</p> <p>In such case when it is shown that the wife furnished to the husband part of the purchase money paid by him for the land there is prima facie a presumption that the money furnished by the wife was intended as a gift to the husband, (p. 487.)</p> <p>4. Husband and Wife —Resulting Trust — Evidence.</p> <p>Ho resulting trust can be raised in favor of a wife from the payment by her of a part of the purchase money on land bought by her husband in his own name, unless it is shown with certaintjr and exactness, what part of the purchase money was paid by her. (p. 488.)</p> <p>5. Pbinoipal and Subety — Subrogation—Stale a Party to Suit.</p> <p>Where a surety pays a judgment rendered in favor of the State against such surety and his principal, such surety may maintain a suit to enforce the lien thereof for his benefit, without malting the Slate a party to the suit. (p. 491.)</p>

<p>1. Tax Sam — Hale, by Sheriff — Incorrect Description of Property Sold.</p> <p>A purchaser at a tax-sale of iDroperty, charged on the laud book and sold by the sheriff for non-payment of taxes, as part of a certain town lot, in the name of a person who, in fact, owned the entire lot, acquires, by virtue of the provision of section 25 of chapter 31 of the Code, relating to mis-statement of the quantity of land so charged and sold, the right, title, interest and estate of the person so charged with the taxes thereon in and to the entire lot, by obtaining a deed therefor under such purchase, (p. 49G.)</p> <p>2. WARRANTY or Titm — Breach of Warranty by Tax. Sale.</p> <p>Where land has been conveyed by deed with a covenant of special warranty, a subsequent sale thereof for non-payment of taxes, charged thereon against the grantor prior to the conveyance, and while he owned the land, constitutes a breach of the covenant of warranty, (p. 495.)</p> <p>3. Warranty OB' Titm — Breach of Rights of Vendee..</p> <p>Failure of the grantee, in such case, to prevent the sale by payment of the taxes or redemption of the land from delinquency and sale, neither bars his action on the covenant nor mitigates the damages, (p. 498.)</p> <p>4. Warranty ob' TiThw — Incumbraires — When Covenants of Title Broken.</p> <p>Though a covenant of warranty is not a covenant against incum-brances, an incumbrance which eventuates in an eviction of the covenantee works a breach of such covenant, (p. 494.)</p>

<p>1. Principal and Agent.</p> <p>An agent, having authority to sell one tract of land at a stipulated price, or that tract and another combined for a certain other stipulated price, may,, within the time limit of his written authority, and with the assent of his principal, verbally expressed, make separate sales of the two tracts to one person at prices which amount, in the aggregate, to the sum for which he was authorized to sell the two tracts combined, (p. 507.)</p> <p>2. Principal and Agent — ripéate Authority.</p> <p>In such case, by consent of the principal, expressed as aforesaid, at the time of the effectuation of the sale of the one tract, which the agent is authorized to sell separately, and in the course of the negotiation therefor, election to take the other tract, which the agent was not originally authorized to sell separately, at a price, which, added to the price stipulated for the single tract, will equal the price fixed for both, may be exercised by the purchaser of such first mentioned tract, at a subsequent date within the period of the agent’s authority to sell. (p. 508.)</p> <p>8. Pbinoipad and Agent— Oontract Construed.</p> <p>If, in such case, the written contract between the principal and agent, gives to the latter an option to purchase the property at the prices named therein, he may, at the time of selling the one tract, which he is authorized to sell separately, at the price stipulated therefor, as a part of the same transaction, bind his principal to sell to him the other tract for the residue of the price fixed for the two tracts combined, by accepting the proposition of sale as to it. (p. 509.)</p> <p>4. Sale op Realty — Contract by Mail.</p> <p>When parties have adopted the United States Mail as a means of communication in their negotiations, the mailing of a letter, accepting an offer of sale, makes a complete and binding contract of sale, dating from the moment of the deposit of the letter in the(postoffice. (p. 509.)</p> <p>5. Contracts by Maií, — Evidence of Letter.</p> <p>Evidence establishing the receipt of such letter, accompanied by proof of the" day on which it was written, dispenses with the necessity of proof in detail of the addressing, stamping and deposit thereof, when there is no objection to the form in which the evidence is introduced, (p. 509.)</p> <p>6. Primary Evidence — When Waived — Letter.</p> <p>Mon-production of a letter, relevant and important as evidence, is waived, by failure to object lo proof of its contents, (p. 508.)</p> <p>7. Contracts by Mail — Evidence of Mailing Letter.</p> <p>Proof, by a witness, that he wrote a letter on a certain day, accompanied by proof of its receipt by the party to whom it was written, at the time it would have arrived at its destination in due course of mail, is sufficient to support a finding that it was mailed on the day on which it was written, (p. 509.)</p> <p>8. Salb OB Realty' — Specific Performance — Wife’s Signature — Pleadings.</p> <p>Specific performance of a contract of sale of real estate will not be refused, merely because it does not affirmtively appear that the vendor’s wife is willing' to join in the conveyance, her unwillingness to do so not having' been pleaded as a defense, (p. 511.)</p>

<p>1. Specific PERFORMANCE — Failure to Pay Gash Payment Promptly— Fffect.</p> <p>A court of equity will not refuse specific- performance of a contract sought to bo enforced by the vendee because of delay for a short period in paying- a balance due on the cash payment, when the vendor has not by proper steps made time of the essence of the contract and has, through the period of such delay expressed a willingness to receive such balance and complete the contract, (p. 518.)</p> <p>2. Contracts for Realty — Payment of Purchase Money — Time not Ordinarily Essence of.</p> <p>Time is not in courts of equity, considered, ordinarily, of the essence of a contract for the sale of land, and especially as to the payment of purchase money. Perhaps there may be circumstances, or terms employed such as to take the case out of the general rule. Abbott v. L'Ilommedieu, 10 W. Va. 677. (p. 518.)</p> <p>Banders, Jud&e, Absent.</p>

<p>1.Divorce — Habeas Corpus Proceedings for Child — Bes Judicata, When.</p> <p>The judgment of a circuit court in habeas corpus proceedings bj-a wife against her husband for the custaty and control of their infant son, in favor of the wife, after a full hearing-, is res judicata in a suit brought afterwards for divorce and the custody of the child by the husband against the wife for desertion and abandonment, as to all facts known and existing at the time of the hearing of the habeas corpus proceedings, (p. 530.)</p> <p>2. Divorce— Custody of Child — Allegations in Bill — Former Proceedings.</p> <p>In a suit by the husband against the wife, after such judgment, for divorce for desertion and abandonment, to entitle the husband to have said judgment changed to give him custody of the child his bill must allege such facts occurring subsequent to the judgment or unknown at the time of ils rendition, as, if proven, would warrant the court in view of the welfare of the child, to change such custody, (p. 531.)</p> <p>3. Divorce — Welfare of Children of First Importance.</p> <p>In a suit for divorce, the court in deciding between the father and mother of the children, as to their custody and control, will regard the welfare and interest of the children as of the first importance. (p: 533.)</p> <p>4. Divorce — Custody and Care of Children</p> <p>Where the father and mother have separated and their infant children must of necessity be deprived of the care, protection and training- of one of them, then it is the duty of the courts to confide the custody of the infants to that parent, whether father or .mother, best suited to maintain, protect and educate them and bring- them up in moral courses, (p. 534.)</p>

<p>1. Chancery JURISDICTION Over ConeliotinGr Oil Leases — Case Overruled.</p> <p>Chancery has jurisdiction to decide between conflicting claims to rent or royalty oil under conflicting oil leases to the same lessee both as to that already produced, and that to be produced in future, by the lessee under the leases, which royalty oil is by the leases to bo delivered to the credit of the lessors. Zinn v. Zinn, 54 W. Va. 483, overruled, (pp. 537, 539.)</p> <p>3. Sureacb and Minerals — Different Oiones's of Same.</p> <p>There may be separate distinct estates in different persons in the surface of land and oil and other minerals in it. (p. 540.)</p> <p>3. Surface and Minerals — Owned by Different Persons — Tax Sale Sells Surface and Minerals.</p> <p>When the surface of land is owned by one person, the oil in place by another, a sale for taxes in the name of the owner of the surface will pass also the oil owned by the other person, his estate not being charged on the tax books, under section 35, chapter 31, Code 1899. (p. 540.</p> <p>4. Oil Lease Mot Taxable — Estate in Oil lo be Taxed to Surface Owner.</p> <p>A lessee under an ordinary oil lease for years has no vested taxable estate in the oil still in the ground, either before or after he has found paying wells. It is taxable in the name of the surface owner, (p. 541.)</p>

<p>1. Commissioner in Chancery — Report—Exceptions—Rule on Appeal.</p> <p>. Where the circuit court sustains exceptions to a report of a commissioner stating an intricate account composed of many items, and re-states the account and enters a decree according- to such restatement, and upon an appeal from such decree this Court finds that both the statement of the account by the commissioner and the re-statement thereof by the lower court are materially erroneous as to many of the items thereof, this Court will announce the principles governing- the statement of such account, reverse the decree of the lower court, sustain the exceptions to the report of the commissioner in so far as the report is in conflict with the principles announced by this Court, set aside the report and remand the • cause to be further proceeded with, and with directions to re-commit the cause to a commissioner to re-state the account in accordance with the principles announced by this Court, (pp. 543 to 550.)</p>

<p>1. Building and Loan Association — Certainty of Premium.</p> <p>Where the minimum premium hid by a borrowing member of a building and loan association is fixed by the charter and by-laws of the association and the bond and deed of trust securing it, in monthly payments for a stated and definite number of years, or until the maturity of the pledged shares, should they mature before the expiration of the years stated, the amount of the premium is sufficiently certain and definite, (p. 559.)</p> <p>2. Syllabus Appboved.</p> <p>Syllabus, points 2 and 3, Toledo Tie and L. Go. v. Thomas, 33 W. Va. 566, approved and reaffirmed, (p. 557.)</p>

<p>1, Insolvent Debtor — Donee of — Bights of Creditors.</p> <p>Where a person is put in possession, of land as a mere donee without any promise of a conveyance and only rents it collecting the rents for his own use but expends neither labor nor money upon it, nor puts any improvement upon it, cannot hold the same as against the creditors of the insolvent donor.</p>

<p>1. Insurance Policy — Pleading—Amendments.</p> <p>A copy of an insurance policy filed with a declaration on a fire insurance policy may be amended to conform to the original, in case of variance, (pp. 572, 573.)</p> <p>2. Insurance Policy — Insured May Sue Irrespective of Mortgage Clause.</p> <p>On a fire insurance policy in the name of Mary A. Staats on property owned by her containing the clause, “Loss, if any, payable to Modern Building and Loan Association, as its interest may appear,” Mary A. Staats may sustain an action, (p 574.)</p>

<p>1. Justice op the Peace — Justice's Doclcet — Continuance of Case.</p> <p>An action in a justice’s court is not discontinued from the mere fact that no orders of continuance or other orders are made on the docket therein. (,p. 579.)</p> <p>2. Justice’s Court — Judgment—Suit Not Discontinued.</p> <p>A judgment rendered in an action before a justice is, on a writ of prohibition, held void. Then a second judgment is rendered. A period of eighteen months, during pendency of the prohibition and afterwards, elapses between the two judgments without any order in the action. This does not work a discontinuance of the action, (p. 579.)</p>

<p>1. Landlord and Tenant — Notice to Quit — Sufficiency of Notice.</p> <p>Under a tenancy from year to year a letter from tl:e tenants to the landlord saying: “We beg' to advise that we have vacated the premises known as west building on 20th street destroyed by fire on September 15th last, and hereby surrender possession of same,” is not a sufficient notice to quit, and does not discharge the tenants from liability thereafter for rent. (p. 533.)</p> <p>2. Landlord and Tenant — Tenancy Toy the Year — Sufficiency of Notice to Quit.</p> <p>Under a tenancy from year to year a letter to the lessor from the lessees saying that the lessees had vacated and surrendered the premises, though accompanied by such vacation, and a defense by the lessees in court of an action by the lessors for rent for a part of the time after such notice, will not operate to end the tenancy or discharge the lessees from rent accruing after that involved in_the first action, (p. 585.)</p> <p>3. Landlord and Tenant — Notice to Quit — What Sufficient.</p> <p>A notice to end a tenancy from year to year must designate the time when the tenancy is to close, either by specifying the day of the close of a current year, or by saying that it is to close at the end of a current year. (p. 583 )</p>

<p>Error to Circuit Court,. Putnam County.</p> <p>Action by Daniel Tracy’s Administratrix against the Carver Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Master and Servant — Safe Place to Work — Ordinary Risk.</p> <p>A servant, knowing the place at which he is required to work to he unsafe, cannot rely upon the statement of a fellow servant that the placéis safe, or that it will be made safe, and thereby encounter the danger, without assuming the extra risk incident thereto, (p. 597.)</p> <p>2. Personal Injury in Mine — Mine Boss — Incompetency—Evidence.</p> <p>In an action to recover damages for personal injuries alleged to have been sustained by reason of the incompetency of a mine boss it is error to admit the opinions of witnesses as to such incompetency. (p. 597.)</p> <p>3. Master and Servant — Master’s Duty as to Safe Place to Work— Servant's Risk.</p> <p>It is the duty of the master to provide a safe place for his servants to work. And when the servant enters the master’s employment, he may presume that this lias been done, but, if, after discovering the place to be unsafe, he continues in the employment, he thereby assumes the extra risk, and cannot recover for an injury resulting- to him by reason thereof, (p. 598.)</p>

<p>1. Office Judgment — When Final — Case Cited, and Approved.</p> <p>Under section 46, chapter 125, Code oí 1899, an office judgment in an action on contract where there is no order for inquiry of damages, becomes final, so as to bar a defense, on the last day of the next term of a circuit court after the entry of such office judgment. Marstiller v. Ward, 52 W. Va. 74. (p. 601.)</p> <p>2. Office Judgment — 'What Will Mot Prevent — Practice.</p> <p>Where the defendant, in an action of debt, appears at the next succeeding term of the circuit court after office judgment has been entered in the clerk’s office, and suggests the non-residence of the plaintiff and takes a rule against him for security for costs, but does not demur, plead or otherwise make defense to the action at that term, and the office judgment is not set aside, these facts do not prevent the office judgment from becoming final on the last day of that term. (p. 601.)</p> <p>3. Office Judgment — Action of Clerk Void — Knowledge Imputed to Defendant.</p> <p>Where, in an action of debt, on promissory note, the clerk of the circuit court enters an office j udgment and adds thereto an order for inquiry of damages, such order for inquiry of damages is void, and knowledge of its void character is imputed to the defendant, (p. 600.)</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Nicholas Mays against Adam Hinchman. Judgment for filaintiff and defendant brings error.</p>

<p>1. Pkohibition — Special Tribunal — Election Contest.</p> <p>The writ of prohibition does not lie from this Court to prevent a member of a special tribunal constituted under the authority of section 15, of chapter 0, of the Code, from acting'in the hearing and determination of an election contest before such tribunal, upon petition filed by a party to such contest, recusing such member. (p. 610.)</p> <p>2. -Special Tribunal — Legislative Character.</p> <p>A special tribunal constituted under authority of section 15, of chapter C, of the Code, is a subordinate legislative tribunal and not a part of the judicial department of the State, (p. 613.)</p>

<p>1. Negotiable Instruments — Innocent Purchaser — Notice.</p> <p>A party who takes negotiable paper before maturity, for a valuable consideration, without knowledge of defect of title, and in good faith, obtains indefeasible title thereto, although, at the time of the purchase, he had knowledge of circumstances which were sufficient to excite, in the mind of a prudent man, a suspicion of want or defect of title, and was grossly negligent in taking it. (p. 629.)</p> <p>2. Negotiable Papeb — Notice of Title — Duty of Assignee.</p> <p>In the absence of actual or constructive notice of defect of title, fraud or other circumstance which would vitiate the title, a purchaser is under no duty to make inquiry as to how the holder of such paper acquired it. He may safely rely upon the possession of the holder as sufficient evidence of title for the purposes of' a valid contract of sale. (p. 630.)</p> <p>3. Negotiable Instruments — Title of Purchaser — When Q-ood.</p> <p>If the holder of such paper truly inform a person intending to purchase it, that he has no title to it, or that he holds it in the capacity of agent for the maker or other party to it, and after-wards 4 sale of the paper is effected between the parties, the purchaser, under the hypothesis first stated herein, takes no title, and, under the second, his title depends upon the authority of the agent, actually or apparently conferred, (p. 631.)</p> <p>4. Negotiable Instruments — Presumption of Ownership — Agent.</p> <p>An agent having in his possession, for discount, sale, safekeeping or other purpose, on behalf of his principal, bills, notes or other paper belonging to his principal, indorsed in blank, or in such other form as to permit transfer of title thereto by mere delivery, may be regarded, by strangers having no notice of the agency or the capacity in which such paper is held, as the owner thereof, and dealt with accordingly in respect to it. (p. 634.)</p> <p>6. Negotiable Pater — Agent and Agency.</p> <p>But, if in such case, the stranger has notice of the fact of agency, his dealings and transactions, respecting the paper, are goyerned by the law of agency. He must regard the paper as the property of the principal and confine his dealings with the agent, concerning it, within the scope of the authority of the latter, actually or apparently conferred, (p. 636.)</p> <p>6. Negotiable Patee — Possession—Declaration of Vendor.</p> <p>One who has destroyed his prima fade title to negotiable paper, arising- from the fact of possession, by admitting that he has no title, cannot restore it by a mere verbal claim that he has since obtained title or the right to discount the paper for his own benefit. A purchaser who is put on inquiry by sufficient knowledge, cannot rely upon information imparted by one whose interests it is to deceive him. (p. 638.)</p> <p>7. Negotiable Paper — Agent—Agency Presumed.</p> <p>A bank discounting negotiable paper, with knowledge that the person from whom it is taken holds it as agent only, is bound to ascertain the extent of the authority of the agent; but, in the absence of knowledge of any limitation upon the authority apparently conferred by the principal, it may rely upon such apparent authority, (p. 636.)</p> <p>8. Negotiable Paper — Ownership and Agency Incompatible.</p> <p>Absolute ownership of a thing and agency respecting it in the same person are incompatible, the latter being merged in the former. Hence, a negotiable note in the hands of an agent, indorsed in blank by the principal, cannot be regarded by a stranger, having notice of the agency, as both prima fade, proof of title in the agent and a power of attorney, conferring upon the agent all the power and authority that are incident to ownership, but he may deal with the agent as such and rely upon the note as conferring apparent authority to sell it and receive payment on behalf of the principal, (pp. 635, 636.)</p> <p>9. Agent and Agency — Principal Not Bound, When.</p> <p>A principal is not bound by any act of his agent which is not within the scope of the actual or apparent authority of the latter, (p. 636.)</p> <p>10. Agent and Agency — Limitations of Agency.</p> <p>Every agency is subject to the legal limitation, that it cannot be used for the benefit of the agent himself or any person other than the principal, in the absence of an agreement that it may be so used; and, as this is matter of law and not of fact, all persons must take notice of it. (p. 638.)</p> <p>11. Principal and Agent — Conversion by Agent — Knowledge by Purchaser.</p> <p>By perverting' his powers to his own personal ends and purposes, an agent acts in excess of his authority, and persons who knowingly participate in such act of perversion, as by purchasing the principal’s property, with knowledge that the agent intends to convert the proceeds to his own use, are not protected by the authority conferred upon the agent, (p. 638.)</p> <p>12. Principal and Agent — Extent of Agency Limited by Naked Power.</p> <p>Naked power to do acts for another negatives all authority on the part of the agent to act in reference to the principal’s business for the benefit of any one other than the principal, (p. 639.)</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by the Chesapeake & Ohio Railway Company against John L. Trail and others. Judgment for plaintiff, and the Deepwater Railway Company brings error.</p>