Volume 61 — West Virginia Reports

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by T. A. Harris and others against J. B. Neal and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. CRIMINAL Law — Bills of ^Exceptions — Sufficiency.</p> <p>A case in which the bills of exceptions are insufficient, neither the evidence taken in the case nor the instructions in question being made a part of the record, (p. 9.)</p>

<p>1. Bbokebs — Sale of Beal Estate — Compensation.</p> <p>Where an agent is empowered to procure a purchaser ior real estate within a stipulated time, and is to receive a certain compensation for his services, he will not be entitled to recover such compensation unless he furnishes a purchaser within -that time. (P- HO</p> <p>2. Same.</p> <p>But where, file owner .or principal has .waived , the, performance of the contract within the time agreed upon, and accepts the services of the agent and recognizes aiid treats the'contract as still'in force;'the agent will be'entitled-to compensation, (p. .11;) . ■ ■ ' . . , ■ .• - i■ - ■ -</p> <p>8. Same — Question foi' Jury.</p> <p>Where there is evidence showing or tending to show that the time withiA'which’a contract was to have been performed'has been waived, or' that the contract lids been' continued, the question should bo submitted to the jury.; (p.-12.)</p> <p>Samis— Werner of Óonclitions of Contract.</p> <p>Where the contract is thus continued, or the time within which the sale was to have been made is waived, without reference to the agent’s compensation, the presumption- is- that lie is entitled to ro¡-cover the sum originally .agreed upon. .(p. 12..1.</p> <p>5. Same.</p> <p>If an agent is empowered to procure a purchaser for real estate at a certain price, and for his services’is to receive a stipulated \ compensation, such agent'will be entitled-to recover the compensation ,flxed, where he procures a purchaser with whom the owner negotiates a sale, although the owner may accept a less sum than that'at which he authorized the agent to make sale. (p. 12.) '</p> <p>6. PrarroiPAL and Agent — Compensation.</p> <p>To entitle an agent to recover for services rendered, it is not necessary to show an express request. A request may be implied from all the facts and circumstances of the case. (p. 15.)</p> <p>7. Estoppel.</p> <p>■ Ordinarily, if one labors for another, or renders him services in his business from which the owner received a benefit, and the one who receives the services stands by and sees what is being done without making objection, he is estopped to deny that the services were rendered at his request, (p. 19.)</p> <p>8. Piíincipal and Agent — Acts of Agents.</p> <p>If a person acts as agent without authority, and his acts are ratified, he is.entitled to compensation the same as though he had.been ■duly authorized, (p. 19.)</p>

<p>1. Equity — Pleading—Answcr^-Permission to File.</p> <p>Where an answer which presents no defense is offered, the court should, upon objection, refuse to permit it to be filed, (p. 20.)</p> <p>2. Pkocbss — Service.</p> <p>Quaere: Where a process is served by an individual, is it necessary for the affidavit or return showing the time and manner of service to also show the place of such service? (p. 21.)</p> <p>3. Appeal — Amendment of Proceedings in Court Below.</p> <p>Pending an appeal and stipersedeas in this Court, the return of service of process commencing a suit may be amended in the lower coux't, upon proper application and notice to the opposite party; and if ¿he amendment is allowed, such fact may be shown to this Court by supplemental record, (p. 23.)</p> <p>4. Same — Effect of Amendment.</p> <p>When an amendment is thus made, and so shown, if it appears that it was property made, and that the defective service is thereby cured, it will relate back to the time of service, and will obviate the error in that regard, (p. 23.)</p> <p>5. VENDOR and PURCHASER— Vendor’s Lien^-Enforcement — Sale.</p> <p>Section la, chapter 132, Code 1899, section 3993, Anno. Code, 1906, which provides that a decree for the sale of real estate of the value of five hundred dollars or more shall be advertised by tlie commissioner or person appointed to make the sale in a newspaper published in the county where such real estate is situated, is mandatory, and where a suit is brought to enforce a vendor’s lien retained in a deed conveying the timber upon various tracts of land, some of which are situated in one county and some in another, the decree should provide for the publication of the notice of sale in both counties, (p. 23.)</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by the State, to the use of Morgan Billingsley, against William A. Stutler and J. L. Bice. Judgment for plaintiff, and defendants bring errqr.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by G. L. Bare, administrator, against the Crane-Creek Coal and Coke Company. Judgment for defendant, and plaintiff brings error.</p>

<p>JL. Licenses — Occupation Tax — Breweries.</p> <p>A brewery located within the corporate limits of an incorporated ■city, town or village, and there conducting its business of manufacturing beer and selling the same at wholesale, is subject to a .license tax by the municipal corporation, although it does not maintain within such corporation a storehouse or place of busi'-ness other than its manufacturing plant, cold storage room and ■■office, (p. 34)</p> <p>'Ü. 'Statutes— Construction.</p> <p>The limits of the application of a statute are generally held to be co-extensive with the evil or purpose it was intended to suppress or effectuate, and neither stop short of,, nor go beyond, the purpose which the legislature had in view. (p. 37.)</p>

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

Application by Charles T. Caldwell for writ of habeas-corpus to W. H. Carfer, sheriff <and others. From a judgment dismissing the writ, plaintiff brings error.

<p>Error to Circuit Court, Wood County.</p> <p>■ Habeas corpus by Reese Blizzard against W. H. Carfer, sheriff and others. Writ denied, and plaintiff brings error.</p>

<p>Error to Circuit Court, Wirt County.</p> <p>Action by F. G. Weaver, trustee, against R. L. Neal & Co. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Facts of Case — Ruling of Court.</p> <p>R. Bros, sued M. and H. in assumpsit as partners and filed with their declaration and account the affidavit required of them by section 46, chapter 125, Code. M. and H. separately and severally entered their pleas of non-assumpsit and tendered their separate affidavits denying their. individual liability upon the demands stated in the declaration, but filed no affidavits denying partnership. Held: Such affidavits not being responsive to the allegations of the declaration or to the affidavit filed by plaintiffs, defendants’ pleas should be rejected, (p. 62.)</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by E. D. Wamsley against Lina A. Ward. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by A. C. Ballouz and others against Brauman Higgins and others. Decree for plaintiffs and Brauman Higgins and others appeal.</p>

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

<p>1.- Iütfants — Suit to Set Aside Decree.</p> <p>Infant defendants to a suit in chancery may, before attaining the age of twenty-one years, maintain an original bill by next friend, showing such error, fraud or surprise as entitles them to a reversal of the decree in such suit. (p. 79.)</p> <p>■2. Same — Grounds.</p> <p>In order to avail the infant parties, the cause for reversing the decree must have existed at the time of the entry of the decree-(p. 79.)</p> <p>•3. Judgment — Equitable Belief — Suit by Adults.</p> <p>Section 7 of chapter 132 of the Code, 1906, does not give additional rights or remedies to adult parties to a suit to show cause against a decree therein, or extend the time in which they may do so by any procedure available to them. (p. 80.)</p> <p>4. Lost Instbuments — Bestoration of Deed.</p> <p>If it appears from the record of a suit to restore a lost deed that the deed was void on its face, it is error to decree its restoration, (p. 81.)</p> <p>•5. Removing Cloud on Title — Possession.</p> <p>It is the general and well settled rule that a bill in chancery, for the purpose of removing a cloud upon the legal title to land, cannot be maintained by one out of possession, (p. 81.)</p> <p>■6. Equity — Jurisdiction—Additional Belief.</p> <p>Where, upon an original bill by infant parties, a decree restoring a lost deed for land xu'onounced in another suit is reversed, the court cannot proceed upon the bill of the infants to adjudicate the question of title to the land between them and a purchaser under a decree in a suit subsequent to the suit restoring the dílfed and between different parties, when the decree restoring the deed did not adjudicate the title to, or otherwise dispose of, the land and when the bill of the infants cannot be maintained for the purpose of removing a cloud upon the title to the land. (p. 83.)</p>

Action by C. L. McClung against J. D. Price and others. Judgment for defendants before a justice, and, from an order dismissing his appeal, plaintiff brings error.

<p>1. Pistoiug Lost Goods — Lost Property.</p> <p>Money or property is not lost in the sense that - a flncler may, by his discovery and possession thereof, obtain absolute title thereto, unless it has been voluntarily abandoned or oast away by the owner, (p. 88.)</p> <p>2. Same.</p> <p>Property is usually considered lost in a legal sense when the possession has been casually and involuntarily parted with, as in the case of an article accidentally dropped by the owner, (p. 88.)</p> <p>8. Saits — Treasure Trove.</p> <p>Coin, gold and silver plate and similar articles hidden for safe keeping- and forgotten, or remaining undiscovered by reason of the death of the person who hid them, are technically known as treasure trove, (p. 100.)</p> <p>4. Same — Bights of Finder.</p> <p>The finder of lost property or treasure trove acquires, by the act of finding, no right of property thernin as against the owner; but, as against all other persons, he is entitled to the possession thereof as a quasi depositary, holding for the owner, (p. 101.)</p> <p>5. Tbiad— Instructions — Weight of Evidence.</p> <p>In a contest between the finder of money and an alleged owner thereof, proof by the latter of circumstances strongly tending to establish title in him, unopposed by any evidence tending in an ap* preciable degree to prove the contrary, precludes the giving of instructions, predicated on the assumption of conflict in the eyidence, requiring a verdict for the party in whose favor it preponderates. (p. 102.) '</p> <p>6. Same.</p> <p>The giving of instructions, having no basis- or foundation in the evidence in the case in which they are given, is prejudicial and constitutes reversible error. (p..l02.)</p> <p>7. Same — Directing Verdict.</p> <p>When the evidence adduced by one of the parties to a civil action at law is sufficient to warrant a finding in his favor, and no evidence appreciably tending to overthrow the case so made has been adduced by the opposite party, it is the duty of the court to direct a verdict in favor of the former, if requested so to do. (p. 102.)</p> <p>S. ReplbviN — Necessity of Demand.</p> <p>A defendant who asserts title in himself independent of any contract, express or implied, between him and the plaintiff, cannot interpose, as a defense to the action, failure onithe part of the latter to demand from him the property in controversy before the commencement of the action.' (p. 102.)</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Bill by H. B. Wells, guardian, against Minnie B. Simmons and others. Decree for defendants, and plaintiff ¡appeals.</p>

<p>Appeal from Circuit Court, Roane County:</p> <p>Bill by P. A. Tallman against Minnie B. Simmons and others. Decree for defendants, and plaintiff appeals.</p>

<p>.’Dismissal of Appeal.</p> <p>Action before a justice for recovery of. possession of land, judgment of recovery for plaintiff, and appeal by defendant. On motion of the plaintiff the defendant is called, and not appearing', his appeal is dismissed and judgment .entered affirming the justice’s judgment. This is error, the burden of proving his case being on the plaintiff. The defendant is under no duty to prosecute the case. (p. 108.)</p>

Bill by the Wheeling Ice and Storage Company against C. W. Conner and others. Decree for complainant, and defendants, J. C. McKinley and others, appeal.

<p>Error to Circuit Court, Jefferson County. .</p> <p>Action by-J. C. Grant against J. E. Wyatt 'and Ellen Wyatt. Judgment for plaintiff, and -defendants bring error.</p>

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

<p>1. Specific Perfoimaxce — When Allowed.</p> <p>Specific performance, of covenants, on the part of a railroad company, to build, provide and maintain road-crossings, cattle guards and other structures on its right of way through a farm, entered into as and for part of the consideration for the right of way, may be enforced in equity by mandatory injunction, (p. 143.)</p> <p>2. Sajib — Remedy at Lato.</p> <p>Courts of equity have discretionary power to refuse specific performance of contracts and covenants, clearly valid in law, when the situation of the plaintiff, as disclosed by his bill and evidence, is such that relief of that character would amount to nothing' more than a more vindication of his naked legal right, for which his remedy at law is fully adequate. In such cases, as in others of equity jurisdiction, inadequacy of legal remedy must be shown, (p. 148.)</p> <p>3. Same — Action for Breach.</p> <p>If upon a bill to compel specific performance, by a railroad oompanjq of covenants to construct cattle-guards, a chute for a stone quarry and an out-let for a spring, it does not appear that any use of such structures would be made, if erected, relief will be refused and the plaintiff remitted to his action at law for damages</p> <p>, for breaches of the covenants, (p. 148.)</p> <p>4. Covenants — Breach.</p> <p>No right of action accrues against a railroad Company on its covenant to construct and maintain road-crossings at such places as the covenantee shall designate for the purpose, until such designations have been made and notice thereof given. (,p. .150.)</p> <p>•5. Specific Pbkfoumance — Belief.</p> <p>Recovery of purely legal demands for money cannot be had upon a bill to enforce specific performance of covenants, having no immediate connection with such demands, or the matters out of which they arose, which fails for want of equity, (p. 151.)</p>

Application by the county court of Taylor county for writ of mandamus to John H. Holt, judge , of the circuit court, and others.

<p>Appeal from Circuit Court, Wyoming County.</p> <p>' Bill by John W. Simpson against A. J. Belcher and others. Decree for plaintiff, and certain defendants appeal.</p>

<p>Appeal from Circuit Court, Eandolph County, n</p> <p>Bill by Deborah Jackson and another against J. Floyd Strader and others. Decree for defendants. Plaintiffs appeal.</p>

<p>Error from Circuit Court, Randolph County.</p> <p>Action by J. H. Walls against William H. Zufall & Co. Judgment for plaintiff. Defendants bring error.</p>

<p>1. Insurance — Subrogation of Insurance — Payment of Loss to Mortga;-gee.</p> <p>K. borrowed from B. B. & L. Association $400 and gave deed of trust on house and lot to secure the loan and bound herself to keep insurance on the building to amount of $400 for the benefit of the Association, and in case of failure to insure, the Association to insure and add premiums, paid by it, to the debt. K. conveyed the property to G. who assumed to pay the trust debt as part of the purchase consideration. No notice was given to the Association or Insurance Company of such conveyance. More than two years after the conveyance to G. the Association purchased insurance of $400 on the property from the S. U. & N. Insurance Co. in the name of K., the policy containing the usual mortgage clause and stipulating that the policy should continuo good as to the mortgagee, notwithstanding any forfeiture by the owner and that if any loss, should bo paid to the mortgagee under such circumstances the insurer should be subrogated to the rights of the mortgagee under the mortgage. The insured property was destroyed by fire. G. complied with none of the requirements of the policy by giving notice of the fire or making proofs of loss or otherwise. The insurer paid the xVssociation $398.62, the amount of its debt, and took an assignment thereof. Held: That it was entitled to be subro-gated to the rights of the Association and to enforce the mortgage, (p. 170.1</p> <p>2. Hamm — -Palien—Tute,rent, in, Praeeedn.</p> <p>A mortgagor has no interest in the proceeds of a policy insuring the mortgagee, taken out by the mortgagee to protect his own interest. and in which the interest of the mortgagor has been forfeited, leaving that of the mortgagee still in force, (p. 176.)</p> <p>3. Compromise and Settlement — Necessity of Aceeptanee.</p> <p>In the matter of a disputed claim between R. and G.. R., the claimant, proposed in writing on April 7th as a compromise, that if G. would pay $100, R. would accept it in full of the claim, and release his mortgage lien on property securing the debt. On the 12th of May following, not receiving a response from G , R. sold the debt to S. IT. & 1ST. Ins. Co., assigned the same and subrogated the assignee to the rights of the mortgagee. In a proceeding- by the-assignee to enforce the mortgage it is error for the court to enforce the compromise offered by R., but, which was never accepted by G. (p. 17S.)</p>

<p>1. Pabtition — Possession by Lessee — Buie to Show Gause.</p> <p>In a suit lor partition brought by the heirs of one who in his life time executed a mining- lease upon the lands sought to be partitioned, upon one of the heirs claiming that the lessee is in possession of a certain portion of the property not embraced by the terms of the lease, a rule cannot issue against the lessee for the purpose of construing the lease and requiring him to appear and show cause why a wr-it should not issue requiring him to deliver possession of the property in dispute to the heir claiming same, (p. 179.)</p>

<p>1. Contracts — Legality—Joint Purchase at Auction..</p> <p>A contract between two or more persons to purchase, jointly, property offered for sale at public auction, is not invalid,-if free from fraud-and collusion, as where their uniting to purchase the property is in good faith and with an honest purpose in view, and nob with ‘the intention of stifling and suppressing the bidding, in order to obtain the property at an under value, (p. 184.)</p> <p>2. Same — Stifling Competition.</p> <p>But all contracts for the purpose of suppressing and chilling competitive bidding upon property offered for sale at public auction, in order to obtain it at under value, or to obtain undue and unconscientions advantages, are fraudulent and void, and will not be enforced at the instance of the contracting parties, or either of them. (p. 186.)</p> <p>3. Courts — Conflicting Jurisdiction — State and Federal Courts — Injunction.</p> <p>A state court has no jurisdiction to enjoin a proceeding or judgment of a federal court. The jurisdictions are separate and independent, and it is essential to the independence and efficiency of each that they be exempt from interference and control one by the. other, (p. 187.)</p> <p>4. Bankkitptoy — Decree—Sale of Property — Injunction in State Court.</p> <p>Where under a decree in a bankruptcy proceeding in the United States court, land is sold and a deed is ordered to be made to the purchaser, a state court is without jurisdiction to enjoin the execution of such deed upon a bill filed therein by one claiming to be jointly interested with the purchaser in the purchase of said property. Nor can the purchaser be enjoined from acquiring the title to such land. (p. 187.)</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Action by the United States Blowpipe Company against J. S. Spencer and others. From a judgment in favor of plaintiff, defendants Fairbanks Company and others appeal.</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Bill by Tina Yilena Hansford and others against Edward Tate and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Action by W. W. Garrett against L. S. Goff. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Veiidict — When Set Aside.</p> <p>In an action at law,' a verdict of a jury which is without sufficient evidenoe to support it, or plainly against the decided weight' and preponderance of conflicting evidence, should upon proper motion be set aside and a new trial awarded, (p. 238.)</p> <p>2.Verdict — To he Set Aside — Must he Unjust. _</p> <p>To justify setting aside a verdict on the ground that it is plainly against the decided weight and preponderance of conflicting evidence, the weight and preponderance of evidence against the verdict must be decided in the sense of pronounced. The verdict must be palpably unjust, A doubtful case, a slight weight and preponderance of evidence against the verdict, is not a sufficient cause for setting it aside, (p. 241.)</p> <p>3. Verdict — Evidence—Preponderance—Jury.</p> <p>Notwithstanding the rule stated above, a verdict depending solely on conflicting oral evidence given by the witnesses in the presence of the jury will not be set aside on the ground alone that the verdict is plainly against the decided weight and preponderance of such evidence, because to do so would invade the province of the jury in determining the credibility of such witnesses, (p. 242.)</p> <p>4. Verdict — Oral Evidence — Documentary Evidence.</p> <p>To justify setting aside a verdict in a case involving conflicting oral evidence, on . the ground alone that the verdict is plainly against the decided weight and preponderance of conflicting evidence, the court must go beyond the question of the credibility of the witnesses who gave conflicting oral evidence in the presence of the jury, and find documentary evidence, uncontroverted evidence, facts or circumstances, or some of these, which when considered with such conflicting oral evidence plainly constitute a decided weight and preponderance of evidence against the verdict, (p. 243.)</p> <p>•5. Vekdict — When Will he Bet Anide.</p> <p>Upon á motion to set aside a verdict on the ground that it is contrary to the evidence, or plainly against the decided weight and preponderance of conflicting -evidence, the trial court in the first instance, and this Court upon review, under section 9, chapter 131, Code11887, as amended and re-enacted hy chapter 100, acts 1891, will consider all proper evidence, facts and circumstances in the case, whether conflicting or not. (p. 244.)</p> <p>0. Reversad.</p> <p>This Court will not reverse the action of the trial court in setting-aside a verdict and awarding- a new trial, unless such action is plainly erroneous, (p. 246.)</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Action of trespass on the case by R. L. Davis against the Chesapeake and Ohio Railway Company. Judgment for plaintiff, and the Railway Company appeals.</p>

<p>1. MORTGAGES — Bale Under Trust Deed — Notice—Posting.</p> <p>It is essential to the validity of a trustee’s sale, where the deed of trust under which the sale is made does not otherwise provide, that notice of the sale he posted at the front door of the court house of the county wherein the land lies. (p. 256.)</p> <p>2. Sam® — Betting Aside Bale.</p> <p>The burden of proof is upon the plaintiff to show that property sold by a trustee under a deed of trust was not properly advertised; where a deed has been made to the purchaser, and he is not the trust creditor, nor in any way chargeable with nor responsible for the regularity of the proceedings under which the sale is made, (p. 256.)</p> <p>3. Sam® — Notice of Bale.</p> <p>It is not essential to the validity of a sale under section 7, chapter 72, Code 1899, section 3056 Anno. Code 1906, providing that a copy of the notice of sale therein specified shall be served upon the grantor, his agent or personal representative, that such notice be served upon the assignee or alienee of the grantor, (p. 256.)</p>

<p>1. Homicide — Indictment.</p> <p>An indictment charging conspiracy to inflict punishment and "bodily injury on a person, and charging also his murder, held good as an indictment for murder, (p. 268.)</p> <p>2. Chiminai, Laws — Declaration of Accomplices.</p> <p>When two or more accomplices are tried together for felony, the declaration or confession of one made after the criminal act in the absence of the others, too long after it to be part of the res gestae, is admissible in evidence; but the court must instruct the j ury that it is not to be considered as evidence against any one but the one making- the confession, (p. 261.)</p> <p>3. Same — Appeal.</p> <p>Whore parties are tried together for murder and convicted, and one judgment rendered against all, this Court may affirm as to one, and reverse and grant a new trial as to another, (p. 261.)</p>

<p>Appeal from Circuit Court, Hampshire County.</p> <p>Bill by M. F. Wills against Beuben Foltz and others. Decree for plaintiff, and Lillian M. Grapes and John B. Grapes appeal.</p>

<p>1. Bailroad Crossing — Accidents—Negligence per se.</p> <p>It is negligence per se to back a train on a dark night over a public railroad crossing without warning, by blowing a whistle or ringing a bell or guard or light on the advancing reversed car. The company must adopt some means to warn travelers o£ danger, such means as will be equally efficient as the bell or whistle warning in the case of an advancing unreversed train. The precaution must suit the circumstances and be adequate under the circumstances, (p. 273.)</p> <p>2. Bailroad Crossing — ReaeJdng by Walking on Track.</p> <p>Though one reach a public crossing over á railroad by walking on the right of way between tracks, though not between the rails, this does not deprive him of the benefit of the safeguards demanded of the company for a person while crossing the railroad on such public crossing. When on the crossing he is entitled to such safeguards, no matter whence he came or how he reached the crossing, (p. 278.)</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by Hester Ann and M. H. Waldron against the Pigeon 'Coal Company. Decree for complainants, and- defendant •appeals.</p>

<p>1. Appeal — Review—Findings of Commissioner.</p> <p>The syllabus in Reger v. O'Neal, 33 W. Va. 159, approved. (p. 288.)</p> <p>2. Adsiiktstbatobs — Rale of Chattels.</p> <p>An administrator selling chattels of his decedent, taking neither cash nor security for the purchase money, is chargeable therewith. (p. 289.)</p>

Bill by Joseph A. Cox against the National Coal & Oil Investment Company and others. Decree for plaintiff, and W. P. Robinson and certain other defendants appeal.

<p>Appeal from Circuit Court, Randolph County.</p> <p>Action by Nannie I. Brown against Gustavus J. Cresap and others. From a decree in favor of plaintiff defendants appeal.</p>

<p>1. INSURANCE — Marine. Insurance — Stranding of Vessel.</p> <p>A policy of marine insurance, containing the clause “that no claim will be made for loss, damage or expense resulting from stranding or grounding, unless caused by stress of weather.’’ Wind causing stranding of the steamboat insured comes under the term “stress of weather,’’ though such wind is not a tornado or extraordinary, and though not unusual in the section where the stranding occurs, (p. 325.)</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Charles Smith was convicted-of an illegal sale of liquor, and brings error.</p>

<p>1. Injunction — Transfer of Note.</p> <p>Equity will enjoin the transfer of a negotiable note on grounds which, as between maker and, payee, would prevent the payee from enforcing the note. (p. 355.)</p>

<p>1. Eminent Domain — Inj auction— Trespass — Insolvency—Irreparable Injury.</p> <p>It is not necessary that a bill ior injunction to prevent the location, construction and use of a railroad over the lands of the plaintiff, by a corporation before it has complied in all respects with the requirements of the statute in talcing1 proper condemnation proceedings for the purpose, to allege that irreparable injury will be sustained thereby, neither is it necessary to allege the insolvency of the trespasser, (p. 3G1.)</p> <p>2. Same.</p> <p>It is sufficient to allege the taking- and occupation of the land by the corporation seeking to exercise the right of eminent domain in respect'to such land without first having complied with the provisions of the statute under -which only it can exercise such right, (p. 361.)</p>

<p>1. Specific Pebeobmaitoe — Adequate Remedy at Law.</p> <p>An agreement or award, whereby an uncertain and unknown division line between adjoining tracts of land, owned by different persons, is identified and made certain as to its location, is not a contract for the sale or conveyance of land, and, as the legal remedy for non-performance is full, complete and adequate, there is no jurisdiction in equity to decree specific performance of such agreement or enforcement of such award, (p. 362.)</p>

<p>1. Railiioads — Stations—Accommodations for Passengers.</p> <p>Chapter 69 of the Acts of 1891, section 71» of chapter 54 of the Code, section 2382, Code of 1906, requiring railway companies and persons operating railroads, to provide and keep, among other things, for the accommodation of travelers, suitable water-closets, “at all stations,” does not contemplate the maintenance and keeping of such retiring places at what are commonly known as “flag-stations,” mere open platforms in connection with which no station buildings, offices or agents are kept. (p. 368.)</p> <p>2. Statutes — Construction.</p> <p>A statute is to be interpreted in the light of the nature of its subject matter, the purpose of the legislature in passing it, and the conditions and circumstances under which the law making body must have known it would operate; and, upon these considerations, it will not be so interpreted as to make it impose unreasonable burdens, greatly disproportionate to the resultant public benefit, unless its terms are so explicit and positive as to preclude any other construction, (p. 368.)</p>

<p>Appeal from Circuit Court, Lincoln County.</p> <p>Action by Starcher Bros, against J. F. Duty and others. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>1. Specific Pbbfobmancb — Objections to Belief — Inequality—Indefiniteness of Contract.</p> <p>Specific performance of an option contract for tlie purchase of land will not he decreed in favor of the optionee against the op-tionor, even though the optionee is free from any intention to take an unfair advantage, if the actual result would he an inequality resulting from ignorance or inexperience, or where the terms of the contract are so indefinite, or assented to with such lack of caution, that the enforoement of the contract would produce an inequality not foreseen by the defendant. (p. 374.)</p> <p>2. PeRPEtuities — Suspension of Alienation — Beal Property.</p> <p>Such, an option contract, gbod for one year, and providing for extending it for another year on payment of a stipulated sum, ' and containing also a provision that the optionee “may have this option and agreement so extended from year to year upon the payment of said sum annually as aforesaid, ” and-extending its provisions to the heirs, assigns, executors and administrators of both parties, is void by the Rule against Perpetuities, (p. 377.)</p> <p>3. Same.</p> <p>Such an option contract is void from its incexition, and anything done by the parties thereto designed to carry the contract into effect which is auxiliary thereto will be treated as unauthorized and inoperative, (p. 377.)</p> <p>4. Same — -Contracts Limited.</p> <p>Whenever, a contract raises an equitable right in property which the obligee can enforce in Chancery by a decree for specific performance,-such equitable right is subject to the Rule against Per-petuities. (p. 378.)</p> <p>5. Same.</p> <p>The mere fact that a contingent interest may be released by a person in being, . and that a good title may- thus be made, is not enough to take the case out of the Rule against Perpetuities, (p. 378.)</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Action by P. H. Wees against R.' E: Elbon and others... From a decree in favor of defendants, plaintiff appeals.</p>

Action by W. J. Peters against the Nolan Coal Company and others. From a judgment in favor of plaintiff, defendants B. Moore and another bring error.

<p>Error to Circuit Court, Randolph County.</p> <p>Action by A. D. Adams against the International Supply Company. Judgment for plaintiff, and defendant brings error.</p>

Application by Charles E. Mylius for writ of habeas corpus to Floyd McDonald, sheriff. From an order denying the writ, petitioner brings error.

<p>Error to Circuit Court, Taylor County.</p> <p>Action by Nancy C. Barnes against the City of Grafton. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Oontbact — Constructionby Parties.</p> <p>When a contract is ambiguous and of doubtful and uncertain meaning', and the parties have by their conduct contemporaneous therewith or subsequent thereto, placed a construction upon it which is reasonable, such construction will be adopted by the court, (p. 417.)</p> <p>2. Samis — Subsequent Contract — Mffect.</p> <p>A subsequent contract which does not by express terms abrogate an earlier contract, will nevertheless operate as a discharge thereof if it is inconsistent with such earlier contract. But to operate as -a discharge, in the absence of an express agreement to that effect-, the new contract must be clearly inconsistent with the continued existence of the original contract, (p. 418.)</p> <p>3. SAMis--Discharge of Former Contract.</p> <p>Where a new contract is made with reference to the subject matter of a former contract, containing provisions clearly inconsistent with certain provisions of the original contract, the obligations of the earlier contract, in so far as they are inconsistent with a later one, will be abrogated and discharged, and the two contracts will be construed together, disregarding the .provisions of the original, which' are inconsistent with those of the latter, (p. 419.)</p>

<p>1. INJUNCTION — Illegal Ordinances — Restraining Enforcement.</p> <p>Equity will not, as a general rule, interfere by injunction with criminal proceedings; but when a statute or municipal ordinance has once been declared illegal by a court of law ol competent jurisdiction, and other prosecutions thereunder are begun or threatened which will result injuriously to one in the enjoyment oí his civil rights of property in which he is protected by general law, equity will interfere by injunction to restrain the same. (p.-422.)</p> <p>2. Sunday — Regulation of Labor — Exemptions.</p> <p>Municipal ordinances of the city of Bluefield, passed pursuant to section 49 of its amended charter, chapter 3, acts of the legislature of 1905, giving authority to said city to prohibit the doing of any regular business on the Sabbath day except works of necessity, and to impose fines and penalties for the violation of any such regulation, and which make it unlawful for any. person on the Sabbath day to lie found laboring at any trade or calling, or to open his shop or store on the Sabbath day for the purpose of selling or disposing of any articles of merchandise, and which ordinances do not exempt from the penalties imposed for such labor the persons and corporations as prescribed by section 17, chapter 149, Code, are illegal and void. (p. 423.)</p>

<p>1. Error, Whit Or — Jurisdiction—Amount in Controversy.</p> <p>In an action o£ trespass guare clausum fregit, the only damage claimed being the cutting of timber, and the plaintiff giving- evidence of no other damage, and his evidence showing- the value of the timber, at most, to be under $100, this Court has no jurisdiction of a writ of error, (p. 430.)</p> <p>2. Same — Trespass—Title to Land.</p> <p>An action of trespass quwe clausum fregit is not a controversy concerning the title or boundary of land, giving jurisdiction in this Court for a writ of error therein, (p. 431.)</p> <p>3. Tiiesdasses — Defenses—Liberum Tenementum.</p> <p>Under the plea of not guilty in an action of trespass guare clau-sum fregit the defendant may give evidence to sliow that the land on which the entry or tre; pass was made was his own freehold, not the plaintiff’s, (p. 4.\,.) '</p> <p>(Sandeus, Judge, Absent )</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Action by W. E. Kircher against L. E. Smith et al. Judgment for plaintiff and defendants appeal.</p>

<p>1. Joint Tenant ob Tenant in Common — Adverse Possession as to Go- Tenant— When.</p> <p>To enable 01115 joint tenant or tenant in common in exclusive possession of land to effect an ouster against his cotenant; so as to defeat the right of such cotenant by adverse possession under the statute of limitations, such cotenant must have notice or knowledge of such hostile claim. Mere silent possession ever so long, by one taking rents and profits, without notice or knowledge of such adverse claim on the part of the other, will not be adverse possession under the statute, (p. 455.)</p> <p>2. Joint Tenant — Exclusive Possession — Ouster—Statute of Limitation.</p> <p>Where one joint tenant is in exclusive possession under the common title, a co-tenant cannot lose his right by. mere laches in failing to demand admission into joint possession or share of the rents and profits. There must be an ouster operating to give title under the statute of limitations, (p. 455.)</p> <p>3. Joint Tenants'Ob Tenants-in Common — Land Of — Sold Under Deed of Trust — Title Acquired by Joint Tenant — When.</p> <p>Where one joint tenant or tenant in common acquires title from a sale under a deed of trust made by all the cotenants for a debt binding all, and the sale is caused by his failure to pay his share of the debt, he cannot,under his right so derived, hold the land against his cotenants, (p. 4C0.)</p>

<p>Appeal from Circuit Court, Mineral County.</p> <p>Bill by James T. Carskadon against the. Board of Education of the School District of Keyser and others. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>Bill by J. D. Logan against M. C. Ballard and wife. Decree for plaintiff. Defendants appeal.</p>

<p>Appeal from Circuit Court, Gilmer County.</p> <p>Action by E. L>. FLilton against John Messenger and others. From a decree in favor of plaintiff, defendants John Messenger and another appeal.</p>

<p>1. Appellate Phocess — When Waned.</p> <p>Where an appellee appears by two or more counsel, who file briefs on the merits of the cause, and by letter to the clerk, join in requesting a submission of the cause, service of appellate process will be treated as waived, although one oí the counsel in. his brief may present the question of suoh want of service. (p. 490.) ' .</p> <p>2. Decree — When Not Final — Appeal, When Under Section 6, Chapter 134. Code.</p> <p>Where, in a suit against a devisee and others to have sold to pay liens a greater interest in land than was devised to him, oo-devi-sees remotely interested therein by executory devise over in default, at his death, of living children or issue of such children, are made defendants solely for the purpose of having said will construed against their contingent interest in said land, and who appear and by their demurrer overruled challenge as matter of law the right of the plaintiff to any relief against them, and on default of answer by them final decree is pronounced that said devi-see took by said devise such greater interest, and directing a sale thereof to pay 'said liens, such final decree is not a decree by default precluding such co-devisees from an appeal without mo-, tion in the circuit court to correct the error therein against them, provided by section 6, chapter 134, Oode, such error being necessarily involved in the decree overruling their demurrer to the bill, (p. 492.)</p> <p>3. Will — Construction—Defeasible Estate — Defined.</p> <p>A will malting specific devises of lands to children and grandchildren of the testator, by the tenth item gave to his son D. P. a tract of 396 3-4 acres, charging- it however with $2000, in favor of his personal estate; and, after making said specific devises, by the eleventh item provided: “All the lands hereinbefore devised to my said children and grandchildren, . . are to be taken and held by them subject to the following limitation — that is to say, that if any of said children or grandchildren hereinbefore mentioned shall die without children, or the lawful issue, of suoh children, living at the time of his or her death, or born within ten months thereafter, then in that case the lands herein devised to suoh child or grandchild so dying without such children, or the lawful issue of such children, living at the time of his or her death, or bom within ton months thereafter, shall descend to each of my surviving children and the lawful is'sue of my deceased children and grandchildren, the descendants of each of my deceased children and grandchildren taking the portion which my deceased child or grandchild would take if living at the time of such death.’’ Held, that at the death of the testator the said D. P. took a defeasible estate in fee in said ,396 3-4 acres, with an estate limited thereon, by executory devise, to the other persons described in said eleventh item of the will. ' (p. 497.)</p> <p>4. Same — -Words of Survivorship Defined.</p> <p>Words of survivorship contained in a will will bo construed according to their usual and common acceptation, unless a different meaning plainly appears to have been intended thereby; and will be referred to the event plainly intended to accomplish the purposes of the testator, whether that event be before, at the time of, or after the death of the testator, (p. 501.)</p> <p>(PokfunbaRgek, Jud«e, Absent.)</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by James A. Bent against Vincenzo Trimboli and other's. Decree for defendants and plaintiff appeals.</p>

<p>1. Eminent Domain — Ilenew—Decisions Renewable — Finality of Decision .</p> <p>In a proceeding under the statute authorizing a railroad company to take and appropriate land for its railroad purposes by paying-just compensation therefore and damages to the residue.of theland, an order of the court adjudicating- the fact that the company has a right toso condemn the land proposed to be taken and appointing commissioners to ascertain such compensation and damages is not final and a writ of error thereto will not lie. (p. 520.)</p>

<p>1. Equity — Pleading—Exhibits— Variance.</p> <p>A bill in equity states a judgment as of one date, the copy of the judgment exhibited with the bill gives the judgment another. The mistake in the bill is immaterial. The court should go by the date given in such copy. (j>. 524.)</p> <p>2. Same — Correction..</p> <p>Documents made exhibits in a bill or other chancery pleading are parts of such pleading, and a court is not bound to accept as true or correct what such pleading states the documents to be, or their effect, but may go by such documents themselves, and treat as corrected mistakes in such pleadings by such documents. (p. 525.)</p> <p>(Pon'FENBAKGEii and MibbeR, Judges, Absent.)</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>Bill by J. D. Logan against I. N. Ballard and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Master and Servant — Mine Boss — Negligence—Liability of Master.</p> <p>A mine boss appointed pursuant to statute is not, merely from his position as such, the servant of the coal mine owner outside his duties specified in the statute, and such owner is not-responsible for his orders to servants of such owner, or his negligence resulting' in injury to them. (p. 533.)</p> <p>2. Same.</p> <p>To bind a master for damage to his servant coming; from the order or direction of an employee, it must appear that the person giving such order or direction had authority from the master to give it. (p, 534.)</p> <p>(POEEENBARGEIt, JuDCiE, Absent )</p>

James McLean appealed from a refusal of the county court to release an assessment. Erom an order of the circuit court directing the assessment to be stricken from the tax book, the State brings error.

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by S. J. Kilcoyne against the Southern Oil Company and others. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court,' Mercer County.</p> <p>Bill by J. Gr. Cecil against B.. F. Karnes and others. Decree for defendants, and plaintiff appeals. \</p>

<p>1. Judgmbstt — Enforcement in Equity — Application of Payment.</p> <p>In a suit. 1o enforce a judgment lien against real estate, and' the defendant in his answer denies “that he owes anything to the plaintiff on the alleged judgment, or in any other manner, and avers that said judgment has long since beop settled and should be released and marked satisfied,’’and on reference to a commissioner it is ascertained that after the judgment was rendered the defendant under contract with the plaintiff did certain hauling of lumber for him which he agreed should be applied on the judgment and it was found that the hauling amounted to more than sufficient to pay and satisfy the judgment. Equity has jurisdiction to enforce (he application thereof to the satisfying of the judgment, (p. r>43.)</p> <p>(POFRKXBARdHJt, Juncut, Absent.)</p>

<p>Appeal from Circuit Court, Wyoming County.</p> <p>Bill by Joseph P. Oneal and others against L. T. Stimson and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. Rkkormation OB’ InbtRujibntk — Mistake in Deed.</p> <p>A deed of trust for a debt on three traéis of land by mutual mistake of the parties includes a certain tract when another was intended. The trustee sells the three tracts and makes a deed to the purchaser, the creditor. The creditor may reform the deed of trust, but not the trustee's deed. (p. 563.)</p> <p>2. Samk — Pleading.</p> <p>A deed of trust by mistake includes a wrong tract of land, when another was intended. The debtor afterwards conveys to a third party the tract which should have been inserted in the trust. A bill to reform the deed of trust must charge notice by such third party of sneh mistake, (p, 563.)</p> <p>3. Samk — Laches.</p> <p>A bill to reform a deed for a mistake therein, to be free from the defence of laches must set forth the discovery of the mistake, when it was made, what, it was, how it was made, and why the discovery was not sooner made. A more general allegation of ignorance at one time, and knofvledg'e of the mistake at another, will not answer, (p. 561.)</p> <p>(Poi'B’N.N'BAHWBI!, Judcho, Absent.)</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Bill by S. S. Hines against J. W. Fisher and others. Decree for defendants and plaintiff appeals.</p>

<p>1. Nisgijgtíisíce — Dangerous Instrumentalities— Vires..</p> <p>One setting fire upon liis premises is charged with the duty of exercising ordinary care and skill in preventing it from spreading and being communicated to the property of another, and if he fails to exercise such care, and by reason thereof the fire is communicated to the property of another, causing him damage, he is liable for the damages sustained by reason thereof, (p. 573.)</p> <p>2. Rvidkxck — Parol—Deeds.</p> <p>Where by deed land is conveyed absolutely, evidence of a parol agreement made prior to or at the time of the execution of the deed is inadmissible to show that the grantor excepted from the operation of the conveyance certain buildings standing upon the promises conveyed, (p. 573.)</p> <p>3. Nkumoenoio — Proxinn-le Clause — Probable Oon.se,quences.</p> <p>Where, in an action for damages-for negligently allowing- fire to escape from premises of the defendant, the defense is that the loss was occasioned by a sudden shift of the wind, it must be shown, in order that such defense may avail, that the change of the wind was unusual and extraordinary, and such as in its nature not. reasonably to be expected, (p. 570.)</p> <p>4. Trial — Taking Question, Etom Jury — Weight of Evidence.</p> <p>A peremptory instruction to find for the defendant should not be given unless tire court can see from the whole evidence that it would not sustain a verdict if found for the plaintiff, (p. 582.) (Povu'KNbarc-ur, Judwm, Absent.)</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Bill of the Ruhl-Koblegard Company against J. M. Gillispie and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by the Washington National Building & Loan Association against Samuel Buser and others. Decree for defendants, and plaintiff appeals.</p>

<p>. 1. Carrier — Action by Passenger — Breach of Oontraet.</p> <p>Where by a contract made between a county court and a railroad company, for the mutual advantage of the parties thereto in preventing the spread of a contagious disease, the carrier agrees, in consideration that the county court shall provide and maintain^ a pest house for the care and treatment of persons infected with such disease, to furnish and properly equip a car therefor and transport such persons to the pest house, one of the class of persons 1,herein designated in whose interest it is made may maintain in his own name an action against such carrier, either in assumpsit upon contract or in tort, for damages resulting from a breach of its duty to him under the contract, or arising out of the relation of carrier and passenger after he has been accepted as a passenger, (p. 598.)</p> <p>2. Same — Pleading and Proof — Variance.</p> <p>In such suit a declaration,, which counts as upon a special contract for carriage between the plaintiff and defendant for hire and reward, is not supported by proof of a contract between the county court and the defendant company, nor by the implied contract between the carrier and passenger; the variance being fatal, (p. 599.)</p> <p>8. Same — Declaration.</p> <p>A declaration in assumpsit, by one entitled to the benefit of such contract, which properly impleads the railroad company thereon and for a breach of its duty to him thereunder, is good upon demurrer. (p. 600.)</p> <p>4. Arrear — Review—Rulings on Pleadings.</p> <p>A writ of error awarded the defendant in such a case does not bring up the action of the trial court in sustaining the demurrer to such rejected count; and this Court can not look to such count to support the verdict and judgment for the plaintiff, (p. 601.)</p> <p>5. Triar — Instructions—Applicability to Pleadings.</p> <p>On the trial of such a case, instructions for the plaintiff based upon the theory of an implied contract, and which ignore the special contract alleged in the declaration, are inapposite and should be refused, (p. 602.)</p> <p>6. OARRtERs — Pleading and Proof — Instructions.,</p> <p>Upon the trial of this case an instruction for the defendant, which told the jury that the plaintiff, having alleged in his declaration that the defendant agreed to carry him for hire and reward and having failed to prove such allegation, was not entitled to recover in an action of assumpsit, was improperly refused. (p. 603.)</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Eliza J. Godbey against the City of Bluefield. Judgment for plaintiff, and defendant brings error.</p>

Petition of Payne & Hamilton and others in the case of Frank N. Mann against M. S. Brazie and others asking for a settlement of the accounts of Brazie’s administrator and to decree against his realty. From a decree for petitioners giving them no decree against the realty, they and others appeal.

Action by M. L. Roy against the Chesapeake & Ohio Railway Company. From a judgment before a justice, defendant appeals, and, from a judgment for plaintiff in the circuit court, it brings error.

<p>Error to Circuit Court, Fayette County.</p> <p>Action by J. C. Montgomery and others against the Economy Fuel Company. From a judgment in favor of plaintiffs, defendant brings error.</p>

Bill by Mary J. Truslow and others against the Parkers-burg Bridge & Terminal Railroad Company and others. Decree for plaintiffs, and defendant railroad company appeals.

<p>Error to Circuit Court, Barbour County.</p> <p>The Baltimore & Ohio Railroad Company was convicted of failing to provide proper station accommodations, and brings error.</p>

<p>1. Judumbnt — Office Judgment — Getting Aside — Demurrer.</p> <p>Action of debt against two defendants on promissory notes, the plaintiff filing an affidavit of the amount due under Oode, chapter 125, section 46. Office judgment against both defendants by default. At the next term one defendant files the counter affidavit prescribed by that section and demurs to the declaration, but files no plea of fact. The other defendant makes no appearance at the first term. At a later term the demurrer is overruled, and both defendants fender a joint plea of nil debent. The said joint plea should not bo received. A demurrer to a declaration does not set aside such office judgment, (p. 637.)</p> <p>2. Mandamus — To Judge — Refusal.</p> <p>In such case a mandamus to require the circuit court to strike out such plea and allow the office judgment to stand as to the defendant not appearing at the first term, until an issue shall -be tried between the plaintiff and the other defendants, will be refused, no motion having' been made for entry of judgment in the circuit court, and the mandam/m>■ asked for not requiring the circuit court to enter any judgment. (p. 640.)</p>

<p>L Banks add ilATSKma — Insolvency—Priorities of Olaivis.</p> <p>In a suit by creditors, who are also directors and officers, of an insolvent banking corporation, to marshal and distribute the assets, and to charge the stockholders with their statutory liabilities to creditors for deficiency of assets, where it appears that the insolvency of the bank is due to the gross mismanagement and neglect of such directors and officers rendering them liable to creditors and stockholders for losses incurred thereby, they may, in a proper case, be postponed as creditors until the debts of all other creditors have been fully paid. (p. 042.) , 1</p> <p>2. CORPORATIONS — Officers—Liabilities.</p> <p>The relationship of officers and directors of a corporation and stockholders and creditors is that of trustees and eestuis que trustent. This is especially true with regard to banking corporations, where they owe an earlier duty to depositors; and if by their gross mismanagement and neglect loss is incurred, they will be rendered liable therefor to creditors and stockholders, (p. 648.)</p> <p>8. Samis.</p> <p>Directors and officers of a banking corporation will not be relieved from such liability on account of ignorance or want of knowledge of those matters which it is their duty to know; and if they negligently entrust such matters to others, the loss incurred thereby should fall on them, and not upon their confiding depositors and stockholders, (p. 643.)</p> <p>4. Samis — Stockholders—Liability—Action to JSnforee — Set-off.</p> <p>In such a suit neither the bank nor its creditors or stockholders are estopped from off-setting- against tlie debts of other claimants or their assignees, whether by judgment or otherwise (no superior equities intervening), the indebtedness of such claimants to the bank not involved or adjudicated in a former suit between the same parties or their privies, (p, 648.)</p>

<p>Ari’KAii — Bevieio—Grant of New Trial — Conflicting Bvidence.</p> <p>The principles of Coalmer v. Barrett, 56 S. E. 585, approved and applied in a case whore it was error for the circuit court to set aside the verdict of a jury in favor of the plaintiff and grant the defendant a new trial, (p. 659.)</p>

<p>1. OoMMioitCM — interstate- (lomum'ee — Railroads—Regulation of Rales.</p> <p>The provisions of section 2482, Codo 1906, imposing- a forfeiture upon any railroad corporation, agent or person which shall fix, de- . mand or receive from any person any greater toll or compensation for the transportation, receipt, handling or delivery of goods or merchandise, or for weighing the same, than is provided by the provisions of that act, are void so far as it is attempted to apply them to interstate commerce, (p.664.)</p> <p>2. Samis — Interstate Oovimere-e — lfy hat Constitutes.</p> <p>A contract between a shipper and a railroad company, for the carriage of goods from a point within one stato to a point in another state, is interstate commerce, and is not the subject of state, regulation as to tolls or compensation therefor, (p. 668.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by George W. Lawson and wife against the Williamson Coal & Coke Company. From a judgment in favor of plaintiffs, defendant brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Lizzie Freeman against Ernest W. Freeman and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error to Circuit Court, Cabel Countju</p> <p>Action by B. H. Laverty, who sues by his next friend, against J. W. Hambrick. Judgment for plaintiff. Defendant brings error.</p>

<p>1. TSubctioiís — liec.ount—hosts—•Statutory Provision.</p> <p>The successful candidate in an election re-count, by which the result 'Of the election shown by the face of the returns, as certified by the election precinct officers and canvassed by the canvassing board, was not changed, has no right of action, under section 68 of chapter 3 of the Code of 1899, section 87 of the Code of 1906, against the unsuccessful candidate, foi his costs and expenses, (p. 694.) '</p> <p>2. Same.</p> <p>The clause of said section, providing that “if the result of elec tion is not changed by such re-count, the costs and expenses thereof shall be paid by the party at whose instance the same was made,” gives a right of action only to the county court for reimbursement for its costs and expenses, occasioned by the re-count, (p. 695.)-</p> <p>3. Same.</p> <p>The re-count is the final ascertainment of the result of the election, and the expenses, incident thereto, are expressly charged upon the county by section 87 of chapter 3 of the Code of 1899, section 106 of the Code of 1906; but the clause in said section 68, above quoted, gives to the county a right to reimbursement against the unsuccessful deinandant of the re-count, to the end that he may not, under the statute, according to him a re-count on his mere demand therefor, by his false clamor, cause useless and vexatious expense to the county, (p. 696:)</p>

<p>1. Rape — Conspiracy to Commit — Indictment.</p> <p>An indictment charging a conspiracy, having for its object the commission of .rape, and averring, in apt and sufficient terms, the commission of such offense, in pursuance thereof, is a good indictment for rape, under section 15 of chapter 144 of the Code, and not an indictment for criminal conspiracy under sections 9 and 10 of chapter 148 of the Code, and does not charge both rape and conspiracy. (p.699.)</p> <p>2. Ihdiotmbut — Sufficiency.</p> <p>An indictment against several persons, described in the order, noting the finding and return thereof, as an indictment against one of them, is good against the person named in the order, (p. 700.)</p> <p>3. Same — Indorsement,</p> <p>Want of the usual memorandum on the back of an indictment, “a true bill” signed by the foreman of the grand jury, does not vitiate the indictment, (p. 700.)</p> <p>4. Criminal Law — Plea—Issue.</p> <p>An order in a criminal case, reciting the entry oí a plea oí not guilty, by the prisoner, and then saying “and the attorney for the state doth the like and issue is joined thereon,” shows that the issue was made up and will sustain a judgment, (p. 700.)</p> <p>5. Saji® — Declarations of Conspirators.</p> <p>In a case in which the evidence establishes a prima facie case oí conspiracy, acts and declarations, done and made by the parties, in pursuance thereof, not in the presence of one another, are admissible in evidence, (p. 701.)</p> <p>6. Same — Bad Character — Evidence.</p> <p>It is error to admit evidence of the bad character or reputation of a prisoner, who has not put his character in issue, (p. 703.)</p> <p>7. Witnesses — Impeachment—Bad Character.</p> <p>Bad reputation as a basis for impeaching testimony must bo limited to reputation as to truth and veracity, (p. 703.)</p> <p>8. Sauce — Instructions.</p> <p>An instruction, given in the trial of an indictment for rape, telling the jury they may find the prisoner guilty, without finding that lie conspired with others to commit the offense, as averred in the indictment, if, from the evidence they believe him guilty, is unobjectionable, (p. 703.)</p> <p>9. Same.</p> <p>It is error to give an instruction on the trial of an indictment for rape, directing particular attention to certain facts, attendant upon the act of sexual intercourse, as stated by the prosecuting witness, including her denial of consent and affirmation of resistance to the extent of her ability, mere conclusions or opinions, not binding upon the jury, and ignoring all the other evidence bearing on the question of consent, and telling the jury they should find for the state, if, from the eyidence, they believe them to be t/ue. (p. 704.)</p> <p>10. Rape — Instructions.</p> <p>An instruction, requested on a trial for rape, to the effect that, if a woman consent to sexual intercourse through fear of anything other than death or great bodily harm, the man with whom she so has such intercourse is not guilty of rape, is properly refused, (p. 705.)</p>