Volume 58 — West Virginia Reports

<p>1. Bill oe Exceptions— Order to be Wntered by Olm% and Not the Bill — Practice.</p> <p>When a judge in vacation makes an order under section 9, ohap-131, Code, 1899, showing- that he has executed a bill of exceptions, and so certifies it to the clerk, the clerk must record the order in the law order book and attest it; but it is not necessary that the bill, or any part of it, be literally recorded in said book, (p. 3.)</p> <p>2. Bill oe Exception — Part of Record by Identification per se.</p> <p>If a bill of exceptions, though bearing- no letter, number or other mark of identity, do of itself by its own matter and character identify itself as the bill mentioned in the order of court or the judg-e certifying- its execution, the bill is part of the record, (p. 3.)</p> <p>3. Negotiable Notes — Acts of Cashier of Bank, Beyond Sis Powers Does Not Release Surety on Note.</p> <p>A cashier of a bank has no implied power, merely by virtue of his office, to receive money for interest in advance on a note owned by the bank and agree to extend time of payment and thus discharge an endorser from liability, (p. 5 & 8.)</p> <p>4. Negotiable Notes — Notice of Protest to Decedent, Received by Admr., Good.</p> <p>A notarial notice of protest of non-payment of a note addressed to an endorser as if living-, when the endorser is dead, if actually received by his administrator, is good to charge such endorser’s estate. (p. 3.)</p> <p>5. Negotiable Notes — Protest and Notice — When Evidence of Required — Practice.</p> <p>To require proot of protest and notice of non-payment when the same are averred in a declaration, they must he put in issue by a plea such as will call for such proof, (p. 4.)</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Roman Pickens against the Coal River Boom & Timber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Action by the Charleston Natural Gas Company against the Kanawha Natural Gas, Light & Fuel Company and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. I sur ANce Policy — Pleadings—Surplusage.</p> <p>The plaintiff in an action on a policy oí fire insurance, being required to file a more particular statement of the nature of his claim, files a statement giving notice to the defendant insurance company that it would be held liable for the full face of the policy on the specific property insured thereby, and, in addition, that it would be held liable for the amount of “fixtures,” not insured thereby, the part of such statement giving notice that the defendant would be held liable for the amount of “fixtures,” is immaterial and should be treated as surplusage, (p. 33).</p> <p>2. Insurance Policy — Particular Statement — When Sufficient.</p> <p>Such statement is sufficient if it, in effect, gives notice to the defendant of the nature of the plaintiff’s claim, (p. 33.)</p> <p>3. Insurance Policy — Particular Statement — Pleadings—Practice.</p> <p>Such statement is not a part of the plaintiff’s declaration and cannot be demurred to. If it is too vague or otherwise insufficient, the remedy is to object to the introduction of evidence under it. (p. 33.)</p> <p>4. Insurance Policy — Particular Statement, Sufficiency of.</p> <p>Under the statement filed by the plaintiff in this case, it was proper to admit in evidence the policy sued on. (p. 33).</p> <p>5. Insurance Policy — Pleading—Practice.</p> <p>In an action upon a policy of fire insurance, the plaintiff is not required to prove compliance with any clause, condition or warranty contained therein, which the defendant does not, under section 64 of chapter 125 of the Code, by a statement filed, specify plaintiff’s failure to perform, &c. (p. 35).</p> <p>6. Insurance Policy — Rule for Construction of.</p> <p>Clauses, conditions or warranties contained in policies of fire insurance, will be construed most strongly against the insurer where it may fairly be done, in order to avoid a forfeiture or to permit a recovery; in case of doubt fairly arising, the doubt will be resolved against the insurer; and where a clause, condition or warranty admits of two interpretations equally reasonable, the .one most favorable to the insured will be adopted, (pp. 35, 36).</p> <p>7. Insurance Policy — Reasonable Compliance With, Necessary Only.</p> <p>In the absence of bad faith, the law requires of the insured only a reasonable and substantial compliance with the clauses, conditions and warranties oí a policy of fire insurance, (p. 37.)</p> <p>8. INSURANCE Policy — Construction of “Inventory Clause.”</p> <p>Where a policy of fire insurance provides that “the assured shall take an inventory of the stock hereby covered, at least once a year during the life of this policy,” the assured has a year from the date of the policy in which to make an inventory, although the policy runs for one year only. (p. 36.)</p> <p>9. Insurance Policy — Construction of Clause — Promissory Warranty.</p> <p>Where a clause in a policy of fire insurance provides that the assured “shall keep books of account, correctly detailing purchases and sales of said stock,” and another clause in effect, provides that failure to observe such condition shall work a forfeiture of all claims under the policy, such clause requiring the assured to keep books of account, etc., is a promissory warranty on his part, (p. 40.)</p> <p>10. Insurance Policy — Clause Construed — Promissory Warranty.</p> <p>Where a clause in a policy of fire insurance provides that the insured, “as often as required, shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made,” and another clause in effect, provides that no suit or action on the policy for the recovery of any claim, shall be sustained in any court of law or equity, until after full compliance by the insured with the foregoing requirement, such clause requiring the insured to produce for examination all books of account, etc., is a promissory warranty on his part and a condition precedent to his right of recovery on the policy. (P 40.)</p> <p>11. Insurance Policy — Clause and Conditions Construed.</p> <p>The clause requiring the insured to produce for examination all books of account, etc., as often as required, at such reasonable place as may be designated by the company or its representative, means a reasonable place in the locality where the insured property was situated, in the absence of conditions rendering such place unreasonable, (p. 40).</p> <p>12. Insurance Policy — Demand of Insurer Unreasonable Under Policy.</p> <p>A demand by the insurer or its representative requiring the insured to produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if the original be lost, at a city located about 140 miles from the place where the insured goods were situated, is unreasonable as to place, and the insured is under no duty to comply with such demand; and his failure to comply therewith constitutes no breach of the clause of the policy requiring him to produce for examination all books of account, etc., at such reasonable place as may be designated by the company or its representative, (p. 41.)</p> <p>13. Instjeaítce Policy — Proof of Loss Not Evidence of Amount of Loss.</p> <p>Proof of loss under a policy of fire insurance, is not evidence of the amount of loss, but is admissible in evidence for the sole purpose of showing that proof of loss has been made, as required by the policy, (p. 42.)</p> <p>14. Insurance Against Fire — Witness, Competency of — Evidence.</p> <p>One having sufficient knowledge of the value of property destroyed by fire to speak with intelligence on the subject, may testify as to his opinion of its value, and the weight to be given to his testimony, is a question for the jury. (p. 43).</p> <p>15. Jury Trial — New Trial — Immaterial Evidence.</p> <p>A verdict of a jury will not be set aside because of the admission of irrelevant and immaterial evidence, where the court can see that such evidence was not prejudicial to the party complaining, (p. 43).</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by George C. McKinley against Peter I. Lynch. Decree for defendant. Plaintiff appeals.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by the Wheeling Mold and' Foundry Company against the Wheeling Steel & Iron Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Equitable Mortgage — Deed of Trust.</p> <p>A writing which is in all respects sufficient as a deed of trust securing a debt, except that it is not under the seal of the party purporting to he the grantor therein, is held to be an equitable mortgage. . (p. 72).</p> <p>2. Grant — Description in Conveyance — Extrinsic Testimony.</p> <p>It is essential to the validity of a grant, that the thing granted should be so described as to be capable of being distinguished from other things of the same kind. But it is not necessary that the grant itself should contain such a description as, without the aid of extrinsic testimony, to ascertain precisely, what is conveyed. BlaJce et al. v. Doherty et al., 5 Wheat. 359. (p. 73).</p> <p>3. Equitable Mortgage— Sufficiency of Description of Property Conveyed.</p> <p>A writing constituting an equitable mortgage, describes the real estate sought to be charged thereby, as follows: “Seventy-two acres of land situate near Hamlin, the same bought of the Land Oompanju Also twelve and one-half acres of land also situate near Hamlin and the same conveyed to said B. F. Ourry by James T. Carroll, Jr. Also three acres situate near Hamlin and known as the old church lot. Also my store house and lot and livery stable and lot in Hamlin.” Such writing is not void on its face for uncertainty in the description of _the real estate sought to be charged thereby, (p.</p> <p>4. Statute of Eba-ots — New Promise.</p> <p>The following clause contained in a writing, “to secure to D. S. Holley, as executor of the last will and testament of James A. Holley, dec’d., the payment of whatever amount said B. F. Curry may owe him as such executor on a settlement,” is not sufficient to constitute a new promise removing the bar of the statute of limitations. (p. 75).</p> <p>5. Equitable Mortgage — Description of Debt Secured — Sufficiency.</p> <p>Such clause contained in a writing, constituting an equitable mortgage, made by a party, is a sufficient description of a debt to secure the amount such party may owe on a settlement to be made, in which settlement there can be included against him only those items not barred by the statute of limitations, at the time of the making and- delivery of such writing, (p. 75).</p>

<p>Error to Circuit Court, Kanawha County</p> <p>Action by CoraE. Stevens against Jacob Friedman. Judgment for plaintiff, and defendant brings error.</p>

<p>Petition by the Virginia-Pocahontas Coal Company for a writ of prohibition to the county court of McDowell county and others.</p>

<p>Petition by John L. Stafford for a writ of mandamus to the county court of Mingo county and others. Peremptory writ awarded.</p>

<p>1. Criminal Law— Malicious Maiming — Instructions.</p> <p>In the trial of an indictment found under section nine, of chap- . ter 144 of the Code, for malicious wounding, with intent to maim,, disfigure, disable or kill, an instruction at the instance of the state which eliminates from the consideration of the -jury the intent with which the alleged wounding was done is erroneous, (p. 96.)</p> <p>2. Oeiminal Law — Instructions.</p> <p>It is error to give an instruction which is confusing in its language and calculated to mislead the jury. State v. Sutfin, 22 W. Ya., 771. (p. 97.)</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by Aristotle Smith against Pocahontas Vineyard and others. Bill dismissed on demurrer and plaintiff appeals.</p>

<p>1. Personal Property — Warranty—Burden of Proof.</p> <p>As a general rule, the burden of proof rests on the buyer, who sets up a warranty of quality or soundness, in the sale of personal property, to establish the fact that the warranty was made and that a breach of it has occurred, (p. 104.)</p> <p>2. Decree — Conflicting Evidence — Reversal.</p> <p>A decree determining a question of fact will be reversed, upon ah appeal, where it clearly appears that such decree is against the weight and preponderance of the evidence, but not where the evidence is of such conflicting and doubtful character that different minds and different judges, equally fair, might reasonably arrive at different conclusions from such evidence, (p. 107.)</p>

<p>Original Jurisdiction.</p> <p>Petition by State of West Virginia against St. Mary’s Franco-American Petroleum Company.</p>

<p>1. Appeal. — Dismissal—1lemioal.</p> <p>When an appeal and supersedeas have been dismissed under rule III, of the Supreme Court, a new petition reciting the fact of the former petition and allowance and dismissal and referring to the assignments of error contained in the former petition and making them a part of the new petition is sufficient upon which to allow an appeal, although such new petition prays “That said order of dismissal may be set aside, that said appeal and supersedeas heretofore allowed may be renewed.” (p. 127).</p> <p>2. Deed — Husband and Wife.</p> <p>Where a husband conveys land directly to his wife, not in fraud of his creditors, she takes only the equitable title, while the legal title remains vested in the grantor in trust for his wife, the grantee. (p. 128).</p> <p>3. Deed — Husband and Wife.</p> <p>In such case the husband cannot convey the legal title to another or encumber the same by deed of trust, or otherwise, (p. 130).</p> <p>4. Deed — Certificate of Acknowledgment — Proof.</p> <p>The certificate of the acknowledgment of a deed imports verity, and cannot be overcome, except by clear and satisfactory proof. The evidence of the grantor denying the execution of the deed and the opinion of experts that the signature thereto is not that of the grantor, are not sufficient, (p. 134).</p>

Notice of motion for judgment by John M. Knox against Yance L. Horner. From an order quashing the notice and dismissing the proceeding, plaintiff appeals.

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by Minnie Brown against B. F. Beckwith, constable, etc., and others. From a decree dissolving an injunction, plaintiff appeals.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>William C. Moyer was convicted of embezzlement, and brings error.</p>

<p>Error to Circuit Court, Gilmer County.</p> <p>Action of detinue by G. W. Hefner and others against Emmett Fidler. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Mechanic’s Lien.</p> <p>A verified account, filed in the cleric’s office of a county court, under the provisions of section 8 of chapter 75 of the Oode of 1899, for the purpose of preserving a mechanic’s lien, must show on its face substantial compliance with the conditions, specified in the statute as the requisites of such lien; but, however informal it may be, the lien will stand if it shows such compliance, (p. 165.)</p> <p>2. Mechanic’s Lien.</p> <p>When the basis of such lien is work and labor, and the recorded paper shows the kind, amount and price thereof, failure to enter each month’s, day’s or year’s service, as the case may be, as a separate item of charge, and credit each payment as a separate item, with the date thereof, will not vitiate such paper, if, on its face, it discloses with reasonable certainty the kind, amount and contract price of the service and time of performance. Itemization in form is unnecessary, if it appear in substance and effect, (p. 106.)</p> <p>3. Mechanic ’ s Lien .</p> <p>To determine the sufficiency of such an account and clahn, the account proper and the sworn statement appended to it, may be read together and considered as a whole, (p. 167.)</p> <p>4. Mechanic’s Lien — Prior Liens — Parties to Suit.</p> <p>If there be prior lions by mortgage, deed of trust, judgment and claims under the mechanic’s lien statutes, on the property sought to be subjected to a mechanic’s lien, it is not error of which the the debtor can complain, if at all, to make the holders of all of such liens parties, convene them before a commissioner, adjudicate them and decree a sale of the property to satisfy them, although no controversy as to the amounts or priorities of any of them is alleged, (p. 167.)</p> <p>5. Equity oe Redemption,</p> <p>An equity of redemption is not the difference between the value of the property, in respect to which it is held, and the amount of the liens thereon, but an equitable estate in the property capable of being enlarged into complete legal title, by discharging the liens, and, in such case, the interest of the owner therein, within the meaning of section 3 of chapter 75 of the Oode of 1899, is such equitable estate, (p. 168.)</p> <p>6. Bill and Exhibits — Demurrer.</p> <p>If a bill and its exhibits, read together, show all the facts necessary to be alleged in a bill sufficient in law, a demurrer thereto is properly overruled, (p. 165.)</p> <p>7. Obdhb on Renekenoe.</p> <p>An order of reference made on a bill, to the gravamen of which the answer does not respond by denial, is not premature, (p. 171.)</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action of Ejectment by Peter Stewart against Isaiah Doak and others. Verdict for defendants and plaintiff brings error.</p>

<p>1. Judge oe Court Party to Suit.</p> <p>A judge who is a quad parly to a suit in equity under the description of the bill filed by certain named plaintiffs suing on behalf of themselves and all others similarly situated, and who will be bound by, or has the right to come into the suit and take the benefit .of, the decree which may be pronounced therein, and thereby derive a pecuniary benefit, is disqualified from acting as judge in the hearing and determination of the suit. (p. 180.)</p> <p>2. Judge op Court Party to Suit. — Injunction.</p> <p>An order made by such judge awarding a temporary injunction in such suit is not void, but voidable, and the order cannot be vacated or annulled or its enforcement prevented by writ of prohibition on the ground alone that the judge was disqualified by reason of interest at the time he entered the order, (p. 188.)</p> <p>3. Water Rates Not Taxes.</p> <p>Water rates exacted by a public corporation from actual consumers are not taxes, but merely the price of a commodity, (p. 187.)</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action of assxmvpsit by Philip Carey Manufacturing Company against Andrew J. Watson. Verdict for defendant and plaintiff brings error.</p>

Bill by William H. Allen against J. N. Wilkinson and others, partners trading under the firm name of the South Penn Coal Company. Decree for defendants, and plaintiff appeals.

<p>1. Declaration — Profert—Oyer.</p> <p>Profert cannot be made or oyer demanded, unless the declaration avers a sealed instrument, (p. 213.)</p> <p>2. Declaration — Profert—Oyer.</p> <p>The fact that a declaration makes profert does not alone make the writing part of the declaration, without a demand of oyer. (p. 214.)</p>

<p>Error to Circuit Court, Wayne County.</p> <p>Action by John Kelley against the Ohio River Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Alfred Dimmack against the Wheeling Traction Company. There was judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Action by J. E,. Poling & Co. against John W. Moore, Jr. Judgment for defendant, and plaintiffs bring error.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by J. W. Dudley against J. B. Barrett and A. J. Hannaman. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Action by Cordelia Nutter against Beeson H. Brown and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Gilmer County.</p> <p>Action by Dora A. Clayton against tbe County Court of Gil-mer county. From a decree perpetuating a preliminary injunction, defendant appeals.</p>

<p>1. Obiminaij Law — Rendition of Judgment.</p> <p>It is error to render judgment of imprisonment in any case in the absence of Ihe. defendant, (p. 265.)</p> <p>2. Indictmbnt.</p> <p>An indictment under a statute must state all the circumstances which constitute the definition of the offense in the statute so as to bring the defendant precisely within it. (p. 266.)</p> <p>8. Ohimixau Law — Appeal—Motion in Arrest of Judgment.</p> <p>Anything' which is good cause for arresting a judgment is good cause for reversing it, though no motion in arrest is made. (p. 266.)</p> <p>4. OmsuxAi, Law — Appeal—Reversal.</p> <p>Although no demurrer was interposed, or motion in arrest cf judgment made, if the indictment is so defective that it could -not be properly prosecuted a judgment thereon will be reversed, (p. 266.)</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by the United States Oil & Gas Well Supply Company against J. A. Gartlan and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Justices — Jurisdiction.</p> <p>Justice’s Courts in this State are statutory courts of limited jurisdiction and are not courts of record. (p..279.)</p> <p>2. Justices — Parties defendwnt.</p> <p>A justice is without jurisdiction in an action brought by him against a dofendeut who is a resident of this State, but not of the county in which the action is brought, the cause of action having' arisen in the county of defendant’s residence, (p. 279.)</p> <p>3. Justices — Jurisdiction—Attachment.</p> <p>And in such case the justice being without jurisdiction in the principle action acquires no jurisdiction by attachment and garnishment of the debtor of the defendant in the justice’s county, (p. 280.)</p> <p>4. Justices - Jurisdiction —Attachment.</p> <p>The justice being without jurisdiction, his judgment in the principal action, as well as that upon the attachment and garnishment, is void. (p. 282.)</p> <p>5. GARNISHMENT — Payment by Gtarnishee — -Void Judgment.</p> <p>And the payment of the money, due from the garnishee to the defendant on the order of the justice is no protection to the garnishee. (p.282.)</p> <p>6. Judgment — Attack on Void Judgment.</p> <p>A void judgment may bo declared to be void in any court in which it may be presented, whether in a direct or collateral proceeding. (p. 282.)</p>

<p>1. INSTRUCTIONS..</p> <p>An instruction must not submit a question of law to the jury, (p. 284).</p> <p>2. "Waters — Surface Watera. — Damac/es.</p> <p>In an action against a county court for damage from collecting' surface water in a ditch along a county road and casting it in a body upon land, the rule, as a measure of damages, that if the land is worth as much in market value after the injury as before, no recovery can be had, does not apply. Nor can general benefits in increase of value or otherwise from the construction of the road commonto all in the vicinity beset off against such damages, (p. 285).</p> <p>8. Public Road — Surface Waters.</p> <p>A county court which, by a ditch made by it along a public road for drainage, collects surface water and casts it in a body on land, doing damage, is liable for such damage by reason of section 9, of Article 3 of the Constitution, (p. 286).</p>

<p>1. CotjNsbl for Prisoner — Withdrawal of Attorney.</p> <p>When the court appoints three practicing attorneys to aid a prisoner in making his defense, it is not error for one of them to withdraw from the trial, where the prisoner makes no objection to such withdrawal, (p. 293.)</p> <p>2. Instructions — Motion to Set Aside Verdict of Jury — Exceptions.</p> <p>A motion to set aside the verdict of a jury, on the ground that the lower court gave certain instructions for the State, will not be entertained in this Court, unless it affirmatively appears from the record that the accused objected to such instructions at the time they wore offered, and excepted to the ruling of the court in giving them. (p. 293.)</p> <p>3. Criminal Law — Accidental Killing — Criminal Intent.</p> <p>In determining the criminality of the act of killing, it is immaterial whether the intent was to kill the person killed, or whether the death of such person was the accidental or otherwise unintentional result of the intent to kill some one else — the criminality of the act is deemed the same, (p 294.)</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bill by A. P. Pence and George N. Davis against B. E. Carney ancl others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. Public Roads, Stbbets, Etc.</p> <p>To establish prima fade the public character of a road, street or 'alley, it is only necessary to prove its use as such by the public and recognition of it as such by the county court, or the city or town, as the case may be, and such act of recognition may be shown ' either by the records of the county court or municipal corporation, or by proof of work done upon the same by one who is shown to be the officer whose duty it is to take care of, work and repair, the road in the precinct in which it is or the street or alley of the town or city. (p. 310).</p> <p>2. Public Roads, Stbebts, Etc.</p> <p>In establishing such recognition by proof of work done upon the road or street by such officer, the amount and character of the work is immaterial, if it be such as to show clearly that it was work upon the road or street for the public benefit, (p. 310).</p> <p>3. Municipal Coepobations — Personal Injury — Latent Defeats.</p> <p>Liability of a municipal corporation for injury occasioned by a latent defect in a street or road, — such a defect as the injured party could not have observed or discovered by the exercise of reasonable care and prudence, — is absolute, and does not depend upon lack of diligence or care on the part of the corporation. - (p. 311).</p> <p>4. Municipal Corporations —Personal Injur// — Latent Defects.</p> <p>A board in a -wooden sidewalk, laid on stringers resting upon smooth ground, not dangerous in character, so unsound as to given way under the weight of a pedestrian and injure him is an actionable defect under the law of this state, (p. -311).</p> <p>5. Action Ex Delicto — Judgment—Interest.</p> <p>A j udgment rendered upon a verdict in an action ex delicto should bear interest from the date of the verdict, if there be one, and not from the date of the judgment, (p. 316).</p>

<p>Petition by C. W. Campbell and others for writ of prohi bition against E. S. Doolittle, judge, and others.</p>

<p>1. Municipal Corporations — Council—Majority Vote.</p> <p>Whenever the words, “The council for the time being shall by a majority vote of all the members elected,” or words of like import, shall occur in the charter of a municipal corporation, relative to the members of the common council thereof, they shall be construed to mean a majority of the whole number of members to which the common council is entitled under its charter. (p. 323.)</p>

Suit by Lafayette Keller against Cordelia A. Keller for divorce. From an order granting alimony and dismissing the cause, plaintiff appeals.

<p>Appeal from Circuit Court, Barbour County.</p> <p>Suit by John D. Pickens and others, Executors, against W. W. Daniels and others. Decree for plaintiffs and J. N. B. Crim ajipealed.</p>

Bill by H. L. Frum and others against A. N. Fox and others. Decree for plaintiffs, and defendants Margaret Fox and others appeal.

<p>Appeal from Circuit Court, Fayette County.-</p> <p>Bill by Amanda D. Siers and others against W. A. Wise-man and others. Decree for plaintiffs, anddefendants appeal.</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Action by A.' W. Yale against Suiter & Dunbar. Judgment for plaintiff. Defendants bring error.</p>

<p>1. Ejectment — Adverse Claimant — Oloud on Title.</p> <p>An owner of land in actual possession who is entered upon by an adverse claimant may, both by common law and chapter 90 of the Code, maintain ejectment against the intruder, and cannot sustain a bill in equity to remove cloud over his title, (p. 369.)</p> <p>3. Quieting Title — Gloud on Title — Removal of Gloud.</p> <p>Equity will entertain a suit to remove cloud over the title to land by one in actual possession against an' adverse claimant not in actual possession who sets up an adverse title, (p. 370.)</p> <p>3. Quietens Title — Title to Maintain — Actual Possession.</p> <p>A bill to remove cloud over the title to land cannot be maintained, unless the plaintiff has both title and actual possession. He cannot rely on weakness of the title of his adversary, (p. 370.)</p> <p>4. Quieting Title — Oloud on Title — Evidence'.</p> <p>When a patent or deed includes within the exterior bounds of the lands thereby conveyed lands which are excepted by such grant or deed from its operation, a plaintiff in equity suing to remove cloud from his title must show that the- land he claims against the defendant is not the land so excepted, (p. 375.)</p> <p>5. Joint Tenancy — Adverse Possession — Presumption of Os-ant. .</p> <p>The law will not presume a grant of his undivided share from one joint tenant to another simply from mere silent possession by one for a long time. (p. 375 )</p> <p>6. ADVERSE Possession — Presumption of Grant.</p> <p>A presumption of a grant from lapse of time with possession never arises where all the circumstances are consistent with the non-existence of such grant, (p. 375.)</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Charles Peyton was found not guilty of selling liquor on Sunday, and the State brings error.</p>

<p>1. Mechanic's Lien. — Account—Affidavit.</p> <p>A substantial compliance with the provisions of the statute is all that is required in the account and affidavit filed for record, for the purpose of asserting a lien under section 7 of chapter 75 of the Code of 1899. (p. 386). .</p> <p>3. Deceee oe Reference — Appeal</p> <p>A decree of reference founded upon the following expressed opinion: “The Court is of opinion that the plaintiff and the defendant George Shanabarger have mechanics’ liens against the real estate owned by the defendant corporation, the Freeport Smokeless Coal and Coking Company, as alleged in the plaintiff’s bill,’’ but not otherwise adjudicating the principles of the cause, is not final or appealable, (p. 387).</p> <p>3. Decree of Sale — Amount of Property to Be Sold — Appeal—Reversal.</p> <p>Where upon an appeal from a decree for the sale of real and personal property to satisfy liens, under section 7 of chapter 75 of the Code of 1889, the decree is reversed as to a lien which is in amount the larger part of all the liens decreed, and such lien held invalid, and the value of the property decreed to be sold does not appear,, it is proper to reverse that part of the decree directing the sale, and to remand the cause with directions to ascertain the amount of property necessary to satisfy the lien or liens not held invalid, and, in default of payment, to order a sale of such amount necessary, (p. 387).</p>

Application the Baltimore & Ohio Railroad Company for writ of prohibition against James Allen, justice, and others. From an order denying the writ, plaintiff brings error.

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by B. Baker against the Monumental Savings & Loan Association and others. Decree for plaintiff, and defendant Scottish Union & National Insurance Company appeals</p>

Action by the State, for the use of the Zell Guano Company, against E. G. Chrislip and J. N. B. Crim. Judgment for plaintiff, and defendants bring error.

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by James M. Laidley, administrator, and others, against William C. Reynolds and others. Decree for plaintiffs. Defendants appeal.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by W. W. Rainey against the Freeport Smokeless Coal & Coking Company and others. Decree for defendants and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Bill by Warren Miller and others against S. E. Mitchell and others. Decree for plaintiffs, and defendants appeal.</p>

Bill by Gr. B. McNeely and others against the South Penn Oil Company and others. From the decree defendant oil company appeals, and plaintiffs file cross-appeal.

<p>1. Mines and Minerals — Conveyance of Coal — Effect.</p> <p>A conveyance of the underlying coal with the privilege of its removal from under the land of the grantor affects a severance of the-right to the surface from the right to the underlying coal and makes them distinct corporeal hereditaments. The presumption that the party having the possession of the surface has the possession of the subsoil also, does not exist when these rights are severed, (p. 453.)</p> <p>2. Mines and Minerals — Owner of Surface — Adverse Possession.</p> <p>The owner of the surface when the underlying coal has been so conveyed can acquire no title to the coal by his exclusive and continued possession of the surface; nor does the owner of the coal S9 'lose his right or his possession, by any length of non-usage. To lose his right he must be disseized, and there can be no disseizin by an aot which does not actually take the coal out of his possession. (p. 454.)</p> <p>3. Quieting Title — Possession.</p> <p>A bill in equity to remove a cloud over title to land cannot be maintained unless the plaintiff have both good title and actual possession, (p. 455.)</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by William R. King against Jeff Thompson. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Easements — Obstruction—Injunction.</p> <p>“A mandatory injunction will líelo cause an obstructed or closed private way to be cleared and opened for the use of the owner.”— Boyd v. Woolioine, 40 W. Ya. 282. (p. 461.)</p> <p>2. Alteration oe Instruments.</p> <p>Where an agreement is prepared between adjoining land owners, for a private W'ay through their lands, and signed by all but one of the parties, and, in order to obtain his signature, one who had signed the agreement, procured the same to be materially changed as to tho route of the proposed road through the lands of the party not signing, the agreement is of no effect as to one who had signed it, but did not know of, or consent to, the change, (p. 402.)</p> <p>S. 'Easements— Obstructions — Injunction—Parties.</p> <p>Where the bill alleges separate and independent obstructions to a private way by the defendant, it is not error to omit to make another party, who also obstructed the wav, a party to the suit, (p. 403.) ’ •</p>

<p>1. Equity — Petition for Rehearing — Process. ■</p> <p>Where a defendant has not been served with process in this State, and has not appeared in the cause, he has the right to file a petition for a re-hearing, as provided in section 14, chapter 124, Code, and as a prerequisite to such right, it is not required that he return to and appear openly in this State. This is only required in attachment proceedings, where a defendant is proceeded against by order of publication, and where he did not appear and make defense, (p. 466.)</p> <p>2. PROCESS — Service—Return.</p> <p>A return of service of process, which shows that it was served by posting at the usual place of abode of'the defendant, the defendant not being found, is defective, in not stating that the wife, or some member of the family of the defendant, over sixteen years of age, was not found at such usual place of abode, (p. 467.)</p> <p>3. Equity — Recree—Want of Process — Reversal.</p> <p>A personal decree taken against one who was not served with process and who did not appear in the cause, is void, and upon a proper bill of review, filed for that purpose, the decree will be reversed, (p. 468.)</p> <p>4. Trusts — Resulting Trust — Conveyance to Wife — Presumptions.</p> <p>Where land is purchased and paid for by the husband, and the conveyance taken in the name of the wife, the prima fade presumption is that a gift was intended, and in such case no resulting trust will arise, unless the presumption as to intention, which in such case is one of fact, and not of law, is repelled by competent evidence. And the evidence required to rebut such presumption must be clear and convincing, (p. 470.)</p> <p>5. Tbusts — Express Trust.</p> <p>But -where land is purchased and paid for by the husband, and the conveyance taken in the name of the wife, pursuant to an understanding and agreement between them -at the time of the purchase and conveyance, that the land is to be held by the wife for the benefit of the husband, this creates an express trust, which will be enforced in favor of the husband, (p. 471.)</p> <p>6. Equity — Bill of Remeto — Joint Decree — Reversal as to One Defendant —Effect.</p> <p>A wife, holding the legal title to a tract of land, died, leaving-surviving- her, her husband, and her heirs at law, a brother and two sisters. After her death, the husband, claiming to have purchased the land and to have paid the purchase money therefor, and to have had the same conveyed to the wife, pursuant to an agreement between himself and wife, that she would take the conveyance in her name and hold the land in trust for him, filed his bill m equity against the heirs for the enforcement of the trust. There was no legal service of process upon one of the defendants. The defendants, being co-tenants, and the decree against them being joint, a reversal of such decree, upon bill of review, as to the one not served with process, operates as a reversal as to all of them. (p. 471.)</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by A. C. Duerr and others against R. E. L. Snodgrass. Decree for defendant, and plaintiffs appeal.</p>

<p>1. Damages — Judgment hy Default — Writ of Inquiry.</p> <p>Where the declaration in an action of assumpsit contains the common counts, and one or more special counts upon promissory notes in writing for the payment of money, and office judgment by default is entered a* rules, the necessity of an order for inquiry of damages in the action is not avoided by section 45, chapter 125, Code. (pp. 479, 481.)</p> <p>2. Judgment — Office Judgment — Pleading.</p> <p>Such office judgment does not become final on the last day of' the next succeeding term of court, not having- been previously set-aside, so as to bar a defense thereafter, but the defendants may plead to issue at any time before the order for inquiry of damages is executed, (p. 479.)</p> <p>3. Assumpsit — Account—Filing Account.</p> <p>The plaintiff in an action of assumpsit does not waive the common counts of his declaration by failing to file the account required by section 11, chapter 125, Code, at the time the declaration is filed. He may file the account afterwards and rely upon the-common counts, (p. 480.)</p>

<p>1. Public Stkeets — Dedication—Evidence.</p> <p>A dedication of land by the owner, for the purpose of a public street, may be established by evidence contained in a deed made by such owner to a private person, in which the rights of the public are recognized, (p. 485.)</p> <p>2. Public Stkekts — Dedication—Acceptance.</p> <p>As between the owner so dedicating, or his alienees, and the public authority claiming- the dedication, the acceptance thereof may bo implied from the actual appropriation and use of the land, by such public authority, for the purpose of the dedication, (p. 485.)</p>

<p>1. Stkhet Kailroads — Municipal Grant.</p> <p>An ordinance, passed by the council of a town, granting' to a street railway company the right to lay its track and operate its railway in the streets of the town, and accepted by the railway company, constitutes a contract between the town and such company, vesting title to such right or easement in it, unless the ordinance contains conditions precedent, compliance with which is requisite to the vesting of title, (p. 510.)</p> <p>2. Street Railroads — Municipal Grant — Forfeiture of Right.</p> <p>Such right may be forfeited and lost by failure to comply with subsequent conditions, and, if the ordinance expressly provides for forfeiture as the penalty of non-compliance with conditions specified in it, substantial performance of the contract as a whole constitutes no answer to a proceeding to forfeit for failure to comply with such conditions, however slight their relative importance may be. The question of materiality is, in such case, withdrawn from the courts by the stipulations of the contract, (p. 510.)</p> <p>3. Street Railroads — Municipal Grant — Conditions'—JSFon-Performance.</p> <p>A street railway license or privilege in a street may be forfeited for failure to lay planks of prescribed dimensions along- the rails ■ of its track in front of improved property, if the ordinance expressly gives the right to forfeit it for such cause, (p. 511.)</p> <p>4. Equity — Belief against Forfeiture.</p> <p>Equity will relieve from forfeitures for non-performance of covenants other than those for the payment of money, arising out of accident, mistake or surprise, in the absence of willful and deliberate refusal to perform, when no pecuniary injury has resulted to the covenantee and the wrong done is easily remediable; but such power of relief is discretionary and will not be exercised unless the delinquent covenantor is able and willing- to immediately perform the covenant, (p. 510.)</p> <p>5. Equity — Wnf'orcement of Forfeiture.</p> <p>Equity will not permit the enforcement of a forfeiture in an ’ inequitable and oppressive manner, nor a perversion thereof to purposes other than those for which the power of forfeiture has been reserved, (p. 514.)</p> <p>6. Equity — Oppressive Conduct.</p> <p>In the exercise of such power, under an ordinance of a municipal corporation, prescribing notice and specification of cause as a necessary preliminary step, the officers of such corporation must deal fairly, openly and frankly with the party whose rights they attempt to take away and abstain from such conduct as will work a surprise upon him Their conduct is governed by substantially the same rules and principles as apply to proceedings by private persons under similar circumstances. In order to be inequitable and oppressive, their conduct need not be actually fraudulent. If in equity and conscience, it is oppressive or lacking in fairness, equity will relieve, however honest and sincere the parties attempting to forfeit may have been. (p. 515.)</p> <p>7. Appeal — Review—Discretion of Court.</p> <p>‘ The discretion of the court in such case is a sound legal discretion, subject to review, and the appellate court will reverse the action of the trial court, whén, in its opinion, relief has been improperly denied. (p.518.)</p> <p>8. Street Railroads — Use of Streets — Forfeiture—Relief.</p> <p>A declaration of forfeiture of a street railway privilege in a street by the council of a town, effected by repeal of the ordinance by which the privilege was granted, pursuant to a reservation of power so to do, for cause and after notice, has not the force and effect of a judicial determination of the existence of cause for forfeiture and does not preclude a resort to the courts by the railway company for vindication of its rights. After such repeal, pursuant to notice, the railway company may, by injunction, prevent the town authorities from removing or disturbing its track, if no cause of forfeiture existed or the circumstances shown are such as to call for the exercise of equity jurisdiction to relieve from forfeiture. In so far as the decision in Town of Davis v. Davis, 40 W. Va. 464, imports the contrary of the forgoing proposition, it is re-examined and disapproved, (p. 518.)</p> <p>9. Municipal Corporations — Privileges in Highways — Police Power.</p> <p>The action of municipal authorities in granting and revoking privileges and licenses in highways, is the exercise of delegated police power, and is not judicial in character, (p. 519.)</p> <p>10. Certiorari — Review.</p> <p>Only judicial action is reviewable by the writ of certiorari under sections 2 and 3 of chapter 110 of the Code of 1899. The scope of the writ is not altered by the statute in respect to the nature of the proceedings for the review of which it may be had. In this respect it remains as it was by the common law. (p. 499.)</p> <p>11. Street Railroads — Construction — Consent, of Municipal Authority.</p> <p>Consent of the Board of Commissioners of Ohio county to the operation of a street railway on and over the Cumberland Road in said county of Ohio does not confer authority upon the railway company, holding such permit, to construct and operate its railway on and over such portion of said road as lies within the limits of the town of Triadelphia in said county, without the consent of the authorities of said town. (p. 496.)</p>

<p>1. Writ or Error — Review—Reeord—JSvidence; Syllabus approved.</p> <p>Syl. in Dudley v. Barrett, 58 IV. Va. 235; and Points 1, 2 and 3; Syl. Tracy v. Goal Go., 50 S. E. (W. Va.) 825; and Point 1, Syl. MaKendreev. Shelton, 51 W. Va. 516, (41 S. E. 909), approved, (p. 526.)</p>

<p>1. CkiminaI; Law — Witness—Husband and Wife.</p> <p>A wile is not. a competent witness against her husband in a prosecution for crime, (p. 528.)</p> <p>2. Cbiminal Law — Husband and Wife— Witness.</p> <p>Quaere. Is a wife or a husband a competent witness now against the other in a prosecution for crime committed against.such witness. (p. 531.)</p> <p>3. Obimikad Law — •Husband and Wife — Witness - Murder of Child.</p> <p>A wife is not a competent witness against her husband in a prosecution against him for the murder of his infant child of the age of fourteen months, though the same pistol ball killed the child and wounded the wife, while the child was in her arms. (p. 530.)</p> <p>4. Indictment — Motion to Quash.</p> <p>An indictment cannot be quashed because it rests, in whole or part, on incompetent evidence, (p. 532.)</p> <p>5. Homicide — Instructions.</p> <p>Refusal of an instruction, on a trial for murder, giving the findings in the power of the jury, including one of involuntary manslaughter, is not error when no evidence in the case tends to show that degree of homicide. Such instruction should not be given, (p. 534.)</p> <p>6. Homicide — Evidence.</p> <p>Evidence of experiment to test the capacity of a child to fire a pistol is admissible to repel evidence of one accused of murder going to show that the child fired the pistol causing the homicide, (p. 534.)</p>

Action by the Coal and Coke Railway Company against Thomas W. Joyce and others to condemn land for railroad purposes. From an order setting aside a verdict of the jury and grating a new trial, Thomas W. Joyce and others bring error.

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Annie Levy against the Scottish Union & National Insurance’ Company. Judgment for plaintiif, and defendant brings error.</p>

Action by Old National Bank of Martinsburg, and others, against the county court of Berkeley county, and .others. Judgment for plaintiffs and certain defendants bring error.

<p>1. Receiver — Possession—Appeal.</p> <p>A decree or order in a chancery 'case appointing a receiver, and thereby changing the possession, of personal property, is appealable. (p. 567.)</p> <p>2. Receiver.</p> <p>The appointment of a receiver is not a matter of right. The power to appoint is a discretionary one, to be exercised with great circumspection. The discretion is not arbitrary, or absolute, but sound and judicial, (p.569.)</p> <p>3. Receiver — Notice.</p> <p>There is no principle of the law of receivership of greater wisdom, and more firmly established, than that requiring notice of the application, (p. 568.)</p> <p>4. Receiver — Notice—Process.</p> <p>A receiver of personal property may be appointed in vacation, without notice of the application, before service of process in the suit, in cases in which to require notice would be unreasonable, or would likely defeat the purpose for which a receiver is necessary, and in cases of great emergency, these cases constituting exceptions to the general rule requiring notice, (p. 568.)</p> <p>5. Receiver — Allegations of Bill.</p> <p>Where notice is not given, the bill should, in addition to showing the necessity for the appointment of a receiver, set out the grounds which excuse failure to give notice; or they must at least appear by the affidavits filed in support of the application, (p. 569.)</p> <p>6. Trustees — Removal of.</p> <p>Equity, by virtue of its general jurisdiction over the administration of trusts, has power to remove trustees, for cause, (p. 569.)</p> <p>7. A Bill eor Removal oe Trustees — Allegations of.</p> <p>A bill brought to remove a trustee to whom personal property has been assigned for the benefit of creditors, and to appoint a receiver for the trust property, to be sufficient must contain full and precise allegations showing the necessity for the removal, and that there is danger of loss or misappropriation of the trust property. (p. 569.)</p> <p>8. Receiver — Jurisdiction to Appoint.</p> <p>A receiver may only be appointed in a pending case. A suit does not lie for the sole purpose of appointing a receiver; but the court must have jurisdiction of the suit on some other ground, before it can make the appointment, (p. 571.)</p> <p>9.. Rbcbivbk — •Vacation Order.</p> <p>The appointment of a receiver can not he made in vacation, any more than in term, except in a pending case. (p. 571.)</p> <p>10. Injunction — Verification.</p> <p>A hill of injunction may be sworn to by the agent or attorney of the plaintiff; but, if so, it must appear from the verification that the person verifying the bill knows the contents thereof; otherwise the verification is fatally defective, (p.572.)</p>

<p>1. Equity — Decree—Oonclusiveness.</p> <p>A decree that is appealable under clause 7 of section 1 of chapter 135 of the Code of 1899, as one adjudicating the principles of a cause, or that is final in such sense as to make it reviewable by bill of review, is conclusive of every matter decided by it, and of every matter which, by the rules of equity practice, the parties were bound to set up in reference to it, before submitting it for adjudication, and cannot be altered or disturbed except by appeal or bill of review, within the respective periods allowed therefor by the statutes, (p. 580.)</p> <p>2. Equity — Alteration After Term.</p> <p>After the expiration of the term at which such a decree was made and entered, it cannot be materially altered, by tho court which pronounced it, as to anything so decided, or deemed in law to bek thereby concluded, except upon some proceeding instituted in said court for setting aside and annulling the same or correcting error therein, (p. 580.)</p> <p>3. Equity — Final Decree.</p> <p>After the expiration of the term at which such a decree has been pronounced, the same cannot he re-opened for the reception of pleadings, setting up defenses as to any matter so decided or concluded. A defendant has no right of election to interpose his matters of defense singly and take separate successive trials and adjudications thereon. By allowing a cause to be decided without having set up a defense, or any one or more of his defenses, he is deemed to have waived all matters so withheld, (p. 583.)</p> <p>4. Finad Decree — Reversal.</p> <p>When this Court reverses a decree as to a matter finally determined thereby, and remands the cause with direction to enter a particular decree, as upon the merits of the subject-matter thereof, the mandate of this Court is final and conclusive upon all parties, as to all matters and things so directed, and no new defenses, existing and known at the date of the decree so reversed, can be entertained or heard in opposition thereto, (p. 583.)</p> <p>5. Decree — Liens—Priorities.</p> <p>A decree made in a suit brought to enforce the liens of judgments and a deed of trust, fixing the amounts and priorities of the liens, decreeing payment thereof, and directing a sale of the debtor’s land, on default of payment, is final and conclusive as to the amounts of the debts, after the expiration of the term at which it is pronounced, and ah answer praying the elimination of usury from one of the debts so adjudicated cannot be received thereafter, (p. 583.)</p> <p>6. Equity — Deed—Description—Fvidence.</p> <p>When the other terms of the description in a deed are equivocal and uncertain as to the identity of the land, and the description by quantity, location and ownership, viewed in the light of admissible extraneous evidence, makes clear the intent of the grantor to convey only the land so described by quantity, location and ownership, the deed is not void for uncertainty, and will be given effect according to the manifest intent as gathered from the whole instrument, (p. 591.)</p> <p>7. Decree oe Sale — Condition Lease — Rents and Profits.</p> <p>If, after a decree of sale of real estate to satisfy liens thereon, a lease of part of the same for mining purposes, be executed by consent of all interested parties, but under an agreement that the execution of such lease shall not prejudice the right of any creditor to ask for sale of the land subject to the lease, and, by reason of development of the land under the lease, its market and rental values are largely increased, sale thereof will not be delayed for an inquiry as to whether its rents and profits will be sufficient to discharge the liens thereon within five years, p. 593.)</p>

<p>1. Committee Fob Insane— Notice.</p> <p>Tho appointment by a county court of a committee for a person as insane, upon a finding by a justice that such person is insane under an inquisition under section 9, chapter 58, Code, without notice to such person is void. (p. 590)</p> <p>2. Insane PERSON — Committee.</p> <p>A justice’s order finding- that a person is insane, not committing him to a hospital for the insane, but leaving him freedom of person until the appointment of a committee, and then committing him to the custody of such committee, is not admissible as evidence of insanity in a proceeding to appoint a committee, (p. 598.)</p> <p>3. Unlawful Entry and Detainer — Entry.</p> <p>Tho plaintiff, in an action of unlawful entry and detainer ap- ■ pealed to the circuit court from a justice’s court, must show that the defendant’s entry was within two years before the action. The record must show that fact to sustain a judgment for the plaintiff, (p. 599.)</p>

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by David Crawford’s administrator against William F. Turner’s administrator and others. Decree for plaintiff, and defendant Albert F. Davis appeals.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by Lysander Dudley against the Chicago, Milwaukee & St. Paul Railway Company and others. From the decree, plaintiff appeals.</p>

<p>1. Husband and Wife — Oontraet of Separation — •Cancellation.</p> <p>A contract, between a husband and wife in an agreement for separation and the conveyance of the wife’s property to the husband, will be cancelled and annulled at the suit of the wife, unless it clearly appears to be fair, just, equitable and wholly free from exception, (p. 016.)</p> <p>2. Husband and Wife — Oontraet of Separation — Cancellation.</p> <p>In a suit by a wife for divorce from bed and board and the cancellation of a contract between herself and husband for a perpetual separation and an agreement on her part to convey forthwith in fee to the husband her real estate of the value of $10,000 or $12,000, in consideration that the wife have full, absolute and complete custody and control of their five children, the husband to have, use and occupy certain rooms in the house so conve3red to him; the wife and children to have, use and occupy the residue of the house, and the wife to provide food and clothing for said children and pay all necessary expenses for supporting them in their said home, including the expenses of their education in the local schools, the husband to pay the wife $50 per month for the purpose of such support and expenses, said “agreement to remain in full force and effect until the youngest child shall reach her majority.” Held: Such agreement is unfair, unjust and inequitable and should be cancelled, (p. 617.)</p> <p>(Oox, Judge, Absent.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by the Norfolk & Western Railway Company against T. J. Davis and others. Judgment for defendants, and plaintiff brings error.</p>

Action by Hi Williamson & Co. against S. H. Nigh and others. The court directed a verdict for defendants, and plaintiffs bring error.

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Action by Joseph E. Clark against Jonas W. Emery and others. From a decree for defendants, plaintiff appeals.</p>

<p>1. TlJIBBR.</p> <p>Under a clause in a deed, reserving, to the grantor, therein, standing timber on the land thereby conveyed, using the following terms: “Said first party J. M. A. reserves and still owns all timber” &c., and requiring the same to be removed from the land within a specified time, the grantor does not hold absolute and unconditional title to the timber so reserved; and such of it as remains unsevered, at the expiration of the time limited, is the property of the owner of the land. (p. 648.)</p>

<p>1. County Courts — dulling Election — Duties.</p> <p>The duties imposed upon county courts, by section 15 of chapter 39 of the Code of 1899, as amended by chapter 95 of the Acts of 1901, are ministerial, (p. 654.)</p> <p>2. County Courts — Time for Proceeding — Adjournment.</p> <p>Such courts cannot prevent action upon a petition filed under said statute, at the term at which it is filed, by adjourning the term. (p. 654.)</p> <p>3. County Courts — Personal Knowledge — Basis of Action.</p> <p>Such courts must base their action on the record made in the proceeding, and not upon personal knowledge of their own members, not in any way madepart of such record, (p. 655.)</p> <p>4. County Courts — -Personal Knowledge — Mandamus.</p> <p>Knowledge and belief of the members of such court’, to the effect that the petition so filed is not signed by the requisite number of legal voters, constitutes no defense upon an application for & mandamus to compel action thereon, when the petition bears the requisite number of signatures and is verified as the statute provides, and no oilier evidence bearing on the question appears in the record of the proceeding as it remains in said court. (p. 655.)</p> <p>5. Equity — Jurisdiction—Supervision of Governmental Acts.</p> <p>In the absence of a statute conferring it, courts of equity have no power to control, by injunction or otherwise, public officers and tribunals in the exercise of purely legislative or governmental functions, (p. 055.)</p> <p>6. Same — Fraud.</p> <p>Fraud, perpetuated by private persons, in the procurement of the exercise of a legislative or governmental power of itself, affords no ground of equity jurisdiction, unless it 'is expressly given by statute, (p. 656.)</p> <p>7. Courts — Adjournment.</p> <p>Section 2 of chapter 114 of the Code of 1899, authorizing circuit and county courts to adjourn from day to day until their business is dispatched, or until the ends of their terms, does not limit or restrict the common law powers of such courts to adjourn to a distant day, or, as it is sometimes expressed, from time to time, provided the day fixed bo not beyond the time to which the term could legally continue, (p. 657.)</p> <p>8. Same.</p> <p>Section 10 of chapter 114' of the Code of 1899, does not limit the period of time over which a circuit or county court may adjourn. Its purpose is to prevent the loss of a term by reason of the failure of any court to sit on any day appointed by law, or by its own adjourning order, for that purpose, (p. 658.)</p> <p>9. Mandamus — Official Action.</p> <p>A court or other tribunal, charged with the performance of a mandatory duty at a given term or session, which adjourns without having performed such duty, may be re-convened and compelled to perform such duty, by mandamus, and the act, when so done, will be deemed to have been performed at the term or session at which the law required it to be done. (p. 661.)</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by T. P. Jeffrey and others against Frederick Lemon and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by B. F. Shears and Hattie Shears against the Traders Building Association and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by Michael W. Flaherty against Charles Fleming and E. F. Wilson. Decree for defendants, and plaintiff appeals.</p>

<p>1. Indictment — Misnomer—Amendment.</p> <p>Ií a misnomer in an indictment for a felony appear before, or in the course of, the trial thereon, the indictment may be amended by inserting therein, under an order of the court, the true name of the accused, (p. 677.)</p> <p>2. Indictment — Misnomer—Motion to Quash.</p> <p>’ An indictment should not be quashed because of a misnomer therein, (p. 678.)</p> <p>8. Indictment — Lost Indictment — Substitution of Gopy.</p> <p>If an indictment for a felony be stolen, lost or destroyed, after a trial thereon, and the rendition of a verdict of guilty, the trial court, under its inherent common law powers, may cause to be filed in the record of the case a copy thereof, as a substitute therefor, to subserve any purpose for which the indictment maybe needed in the further progress of the case. (p. 678.)</p> <p>4. Indictment — Substitution of Gopy — Presumption.</p> <p>In the absence of an objection to the substitution of such copy, on the ground that it is not a true or correct copy, its accuracy and correctness will be presumed, (p. 679.)</p> <p>5. Billoe ExctePTiONS-vlpytfal</p> <p>A bill of exceptions, made up and signed more than thirty days after the expiration of the term of the court at which final judgment in the case was rendered, is no part of the record and cannot be considered, (p. 677.)</p> <p>6. Bill oe Exceptions — Transcription of Evidence — Record.</p> <p>If it affirmatively appear, from an order in the case, that the evidence was not transcribed by the stenographer within thirty days from the end of such term, it is no part of the record, although there is a nunc pro tunc order, purporting to make if so as of the term at which the judgment was rendered, (p.677.)</p>

<p>Error to Circuit Court, Berkeley County.</p> <p>J. R. Clifford was convicted of libel, and brings error.</p>