Volume 62 — West Virginia Reports

Action by Howard Sutherland against the county court of Randolph county and others for an injunction. From a decree perpetuating the injunction, defendant county court appeals.

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

Action by the State, on the relation of John Reeves against J. H. Ross and others. From judgment in favor of plaintiff, defendant brings error.

<p>1 ATTORNEY and Client — Lien on Judgment.</p> <p>An attorney has a lion, on a judgment obtained by him for his client, for his services in the case, the amount whereof is fixed by special contract, although payment thereof cannot be had under the terms of the contract until the money is actually recovered, and no money can be made under an execution oh the judgment. (p. 20.)</p> <p>2. Same — Duty of Attorney — Enforcement of Judgment.</p> <p>An attorney having such a lien upon a judgment, is not bound to prosecute, without additional compensation, a suit in equity, to enforce the lien of the judgment upon the debtor’s land, or to set aside fraudulent conveyances, in order to. realize the money to which the judgment entitles his client, and his failure to do so does not destroy his lien. (p. 23.)</p> <p>3. Same — Assignment of Lien.</p> <p>Such lien is assignable and may he enforced by the assignee, though the assignor, by his assignment, has lost his right to onforce it. (p. 23.)</p> <p>4. Same — Enfoi'cement of Judgment —Expense.</p> <p>If the client, in order to realize the money due upon the judgment, for the common benefit of himself and the attorney, necessarily expend money in the payment of costs, and counsel fees, in the prosecution of a suit in equity for suclr purpose, the attorney must contribute ratably to such expense and take his percentage out of the net amount realized by the client from the property of the judgment debtor, (p. 25.)</p>

<p>1. Damages — Elements—Litigation.</p> <p>Though the measure of damages, in an action by a Jessee against the lessor, for failure to give possession of the leased premises at the time stipulated for the commencement of the term, is a legal rule, it is founded upon equitable considerations, which bind the injured party to such prudent action and reasonable exertion as will mitigate the injury, and deny to him recovery of such damages as he could have prevented thereby, (p. 27.)</p> <p>2. Landlobd and Tenant — Delivery of Possession — Action—Damages.</p> <p>A tender of possession of the premises, made by a lessor to the lessee, a short time after the date on which he was, by the terms of the lease entitled thereto, the situation of the lessee then being such as to enable him to accept the same without serious inconvenience or detriment, will limit the recovery of general damages, for breach of the covenant, for quiet enjoyment, to the period intervening between the date on which possession should have been given, and the date of the tender, (p. 29.)</p> <p>3. Same — Waiver.</p> <p>Acceptance of the premises by the lessee, after the date on which the lessor was bound to deliver possession thereof, constitutes no waiver of the lessee’s right of action for the damages suffered by him prior to the date of such acceptance, (p. 31.)</p> <p>4. Damages — Burden of Proof — Mitigation.</p> <p>The burden of proof of matter operating to mitigate damages is on the defendant; and evidence offered for the establishment of such defonsp must be sufficient in breadth to cover all the essential elements thereof, in order to prevent its proper exclusion by the court, on an objection or motion made therefor, (p. 32.)</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Appeal by J. T. Peters against E. N. Case. Decree for plaintiff, and defendant appeals.</p>

Action by William J. DeBoard against the Camden Interstate Kailway Company. From an order granting a new trial after verdict in favor of plaintiff, he brings error.

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Robert ,T. Proudfoot against Thomas L. Saffle. Decree for defendant, and plaintiff appeals.</p>

Action by J. A. Lamp and others against the Homestead Building Association and others. From a decree appointing a special receiver of the defendant the Homestead Building Association, the Commercial Banking & Trust Company appeals.

<p>Tiujstr — Bill to Enforce.</p> <p>Tne syllabus in Washington National Building and Loan Association, v, Baser, decided at this term, approved and affirmed, (p. 66.)</p>

<p>1. Rekeiusnce — Action at Law — Stating Account.</p> <p>Under section 3921, Code 1906, in any case at law in which it may be deemed necessary the court may direct a commissioner in chancery or other competent person, either before or at the time of trial, to take and state an account between the parties, which account whoa thus stated shall he deemed pj'imu fade correct and may be given in evidence to the court or jury trying the case. (p. 69.).</p> <p>3. Isjuxction — Action at Law — Adequate Defense.</p> <p>The court will not enjoin the prosecution of an action at law when the defendant can make full and adequate defense in such action, (p. 70.)</p>

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by Gerrard D. Moore and S. W. Washington, trustees in bankruptcy of J. Garland Hurst, against Joseph F. Tearney and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Tmnants in Ccmjion — Uights Inter se — Contribution.</p> <p>An acre of land in Bluefield, Mercer county, bounded on one side by Mercer Street, ou another by Bluefield Avenue, on another by the N. & W. Railroad property, was laid oil into eight lots, Nos. 1, 2, 3 and 4 fronting on Mercer street and running back with Blue-field Avenue to the lino of lots 5 and G which line ran from Blue-field Avenue to the N. & W. Railroad. B. owner of lot 1, H. Owner of lot 2, C. B. owner of lot 3 and F. owner of lots 5 and 6, desiring in common an alleyway ten feet wide from the lino of lot 4 to Blue-field Avenue along the line of lots 5 and 6, on thelGth of February, 1892, executed and caused to be duly recorded an inter paries deed whereby the said several owners granted and conveyed each to the others with general warranty of title, in consideration of the privileges and easements therein granted each to the others, a strip of five feet in width from, their respective lots along the said line of lots 5 and 6 running from the lino of lot 4 to Bluefield Avenue all of which conveyances were to the grantees their heir's and assigns forever, all the parties reserving to themselves respectively their rights in the easement on the parcel conveyed. Prior to the execution of said Inter partes deed F. had made a deed of trust conveying lots 5 and 6 to secure a debt, under which deed of trust lot 5 was sold by the trustee and conveyed to a stranger who sold and conveyed same to B. Held: The purchase by B. as to the five feet strip of said lot 5 inured to the benefit of all parties entitled to the easement in the alley; and further, such other parties are liable to B. for their respective proportionate shares of the amount paid by said B. for said strip so purchased by him. (p. 89.)</p>

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

<p>1. Exceptions, Bill Op— Time of Signing.</p> <p>Bills of exceptions are required to be signed at the term at which the trial is had, or within thirty days after the adjournment, thereof, and after the expiration of such time, there is no jurisdiction to sign such bills; nor can jurisdiction to do so be conferred by consent of parties, (p. 95.)</p> <p>2. Municipal Oobpokations — Change of Grade — Damages.</p> <p>A municipal corporation changes the established grade of one 'of its streets. An action lies by the owner of property abutting on such street for damages caused by such change in grade, (p. 92.)</p> <p>3. Touts — Pleading—Demand.</p> <p>In actions ex delicto, it is not necessary, as a prerequisite to his right to sue, that the plaintiff allege a demand against the wrongdoer. (p. 93.)</p>

<p>Trusts — Bill to Enforce — 'Sufficiency.</p> <p>The syllabus in the Wanhington National Building and Loan As-coaiaiion v. Buser et al., decided at the present term, approved and adopted, (p. 105.)</p>

<p>1. Evidence — ’Recitals in Reed.</p> <p>A recital in a deed of a special receiver showing his appointment- and authority to execute the same, is not evidence of such authority against persons not claiming under it. (p. 108.)</p> <p>2. Samis — Rocumentary Evidence.</p> <p>In ejectment a deed made by a special receiver appointed to convey the title to land of another, is sought to be introduced as a link in the plaintiff’s chain of title. In order that such deed may be introduced it is necessary that enough of the record of the court appointing such receiver be introduced as will show that'the court authorized the conveyance of the property; that it had jurisdiction of the person whose property is directed to be conveyed, and that it had jurisdiction of the subject matter, (p. 109.)</p> <p>3. Same.</p> <p>A deed made by a receiver is offered in evidence in an action of ejectment. In order thatsuch deed may be introduced, it is essential that it be shown by the record of the court wherein the cause was pending, that the receiver qualified by giving bond as required in the decree appointing him. (p. 109.)</p> <p>4. Same — Receiver.</p> <p>A certificate by the clerk of a court that a special receiver qualified by giving bond as required in the decree appointing him is not admissible in evidence. An authenticated copy of the record showing such qualification is the necessary and proper evidence thereof. (p. no.)</p> <p>5. Trusts — Textamentary Trusts — Sale by Trustee.</p> <p>A will devising property to certain persons and appointing another to sell and dispose of the same in such manner as to him seems to the best interest of the devisees, and to invest the proceeds thereof for their benefit, constitutes such other person a trustee, with power to sell and convey the property, and when he does so, by proper deed, it passes to the vendee therein the entire interest of the devisees, (p 111.)</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by D. II. Oppenheimer against the Triple-State Natural Gas & Oil Company. Judgment tor defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by Mont Burrows against W. R. Fitch and others. Decree for defendants.. Plaintiff appeals.</p>

<p>Appeal from Circuit Court, Jackson County.</p> <p>Bill by Sarah R. Roush against Elizabeth Hyre and others. Decree for defendant, and plaintiff appeals.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Paris May was convicted of murder, and brings error.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Grover Cremeans was convicted of murder in the second degree, and brings error.</p>

<p>1. Tender — Plea—Sufficiency.</p> <p>A plea of tender must state the tender of a precise sum of money, and a refusal of the creditor to receive the money, and aver that ever since the defendant has been, and still is, ready to pay the sum, and must state that the money is brought into court along with the plea, and the money must be paid into court. Unless the money is brought in and paid into court, the plea and evidence under it may be disregarded, (p. 152.)</p> <p>2. Judgment — Admission by Pleading — Effect.</p> <p>When a defendant flies a counter affidavit under Code, chapter 125, section 46, that there is only part of the demand due the plaintiff, the plaintiff is not bound then, to take judgment for that part, and try as to the balance of the demand. He may try the case as to all his demand, (p. 153 )</p>

<p>Error to Circuit Court, Lincoln County.</p> <p>Mareen Johnson was convicted of illegally selling liquors,. and brings error.</p>

<p>Appeal from Circuit Court, Jackson County.</p> <p>Action by P. E. Beverlin against F. S. Casto. From a decree in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Action by Daniel L. Toothman against David H. Courtney and others. From a decree in favor of plaintiff, defendant Courtney appeals.</p>

<p>1. Eminent Domain — Mature of Power — Public Use — Railroads.</p> <p>A company organized under and pursuant to the laws governing the organization of railroad companies in this state has the power to exercise the right of eminent domain, and the taking of property necessary for its corporate purposes is for a public use. (p. 18(3.)</p> <p>2. Same — Determination of Right.</p> <p>The fact that a charter for a railroad has been granted to a corporation' does not, conclusively and beyond consideration, establish the right of the corporation to take land for its use. Whether the particular corporation has such right may be passed on under all the facts and circumstances by the courts, (p. 187.)</p> <p>3. Same — Proceedings—Evidence as to Right to 'Palee.</p> <p>A railroad company, chartered and organized under the laws of this state, is authorized to condemn land under the power of eminent domain, and where it has filed a proper application for such purpose, and shows that it has complied with the law controlling the organization of such companies, it has the prima facie right to exercise such power, and it then devolves upon the owner to rebut the prima facie case by showing that the land sought to be condemned is not for public use. (p. 190.)</p> <p>4. Same — Nature of Uight— Public Use — Determination.</p> <p>Private property may be taken for public use upon paying or securing to be paid, just compensation, and while the question as to whether or not a particular use is a public use is one for judicial determination, yet if a particular use is declared by,the legislature to be a public one, the courts will hold such use public, unless it plainly appears not to be so. (p. 191.)</p> <p>5. Same.</p> <p>Whether a use is public or private is to be determined by the’ character of such use, and not by the number of persons who enjoy it, or avail themselves of it. (p. 191.)</p> <p>6. Same — Railroads.</p> <p>■ The fact that the route of a proposed railroad is through a mountainous and sparsely settled country, or that the number of persons who will use the road for the purpose of transporting freight, or for passenger service, is limited, is immaterial, provided all have a right so to use it. (p. 191.)</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by Rachel Collins against Shelton L. Reger and others. From the decree, plaintiff and Martha Helmick appeal.</p>

<p>1. Partition — Pleading—Bill.</p> <p>A bill for partition of land by heirs, alleging the death of then-father intestate, his seisin of seven-eighths undivided interest therein and the remainder in the defendant, locating and describing the land, making parties and praying for partition, is sufficient upon which to found a decree adjudicating- the principles of the cause, (p. 207.)</p> <p>2. Appeal — When Lies — Decree in Partition.</p> <p>A decree of partition, whether by default or after full defense, which adjudges title in the parties, the interests they hold and that partition be made in the proportion defined by it, and leaves nothing to be done except for the commissioners appointed, in furtherance of its execution, to divide the land in kind if possible, or if not to report the fact to the court for decree of sale and distribution of the proceeds, adjudicates the principles of the cause and contains every element necessary to render it appealable, (p. 210.)</p> <p>3. Equity — Decree—Pro Gonfesso — Vacating.</p> <p>Such’a decree when pro aonfesso cannot be set aside or avoided by the defendant, after the term at which it is entered, except upon motion in the circuit court or the judge thereof in vacation, under section 5, chapter 134, Code, for errors on the face thereof for which an appellate court could reverse it; or by a bill of review pure and simple, or some pleading capable of performing the function of such a bill. (p. 212.)</p> <p>4. Same — Bill of Review.</p> <p>A bill of review or petition for rehearing will lie only for error apparent on the face of a decree, for newly discovered matter of defense, or for newly discovered evidence of a defense known and pleaded; and such newly discovered matter or evidence will not, if known beforehand, be available after publication of the decree. (p. 219.)</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Suit by Minnie M. Walton against James Kniglit and others. From a decree in favor of plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Action by Paulina M. Tolley against L. E. Poteet and others. From a decree in favor of defendants, plaintiff appeals.</p>

<p>1. Taxation — Payment of Taxes — Tender of County Orders — Mandamus.</p> <p>A sheriff or collector of state, county and district taxes, having in his hands money, belonging to the g-eneral county fund of his county, is bound to receive, from a tax-payer, in payment of all of his state, county and district taxes, county orders, drawn pursuant to law, if owned by such tax-payer and by him tendered for paymcnt thereof, and mandamus lies to compel such acceptance of the same, (p, 258.)</p> <p>2. Sauk — Itefusal to Accept.</p> <p>That the orders tendered were drawn in a'fiscal year prior to that for which the taxes are due, and made payable out of the funds of such previous year, constitutes no ground for refusal to accept them in payment of the taxes, (p. 259.)</p> <p>3. Counties — Oounty Orders — Assignment.</p> <p>County orders are assignable, subject to a .-right, in the sheriff or collector, to deduct any taxes due from the payee thereof, (p. 259.)</p> <p>4. Same — Payment.</p> <p>Such orders are payable by the sheriff or treasurer on demand and in the order of their presentation for payment, when payment is insisted upon. (p. 261.)</p> <p>5. Samis — County Levies —Disbursement.</p> <p>The estimate made by a county court, iu accordance with the requirements of section 29 of chapter 39 of the Code of 1899, section 1231, Code of 1906, does not constitute a rule for the guidance .of the sheriff or treasurer in his disbursements of county levies, (p. 201.)</p> <p>6. Samis — Apportmiment of Levy.</p> <p>Such estimate does nol effectuate appropriations of the levy based upon it, or an apportionment thereof, to or among the several purposes therein specified, (p. 260.)</p> <p>7. Samb — Payment of County Orders.</p> <p>After having appropriated all the funds in the hands of the sheriff or treasurer by the drawing of orders thereon, tho county court cannot vary the rule or order of payment of the orders, so as to favor the holders of certain orders to the detriment of the holders of others. Mor can it prevent the payment of outstanding-orders, to the end that salaries and other necessary current charges againt the treasury, not yet due, may have preference on becoming due and payable, (p. 262.)</p> <p>8. Mandamus — Refusal—Discretion of Court.</p> <p>Discretionary power to refuse the writ of mandamus will not bo exercised in a case in which the legal right is clear, substantial and fruitful in benefits, and tho plaintiff has done nothing out of which an equitable estoppel or defense in the nature of one can arise, (p. 264.)</p>

Action by the State, at relation of C. T. Tinsley against J. II. Ross, constable, and others, as sureties on his official bond. Judgment for plaintiff, and defendant brings error.

<p>1. Eminent Domain — Sature andDxtent of Power — Taking for Private Use.</p> <p>Under our Constitution private property cannot be taken for private use, either with or without compensation, (p. 274.)</p> <p>2. Same — Determination of Right— Question of Law.</p> <p>The question what is a public use is always one of law. Deference will be paid to the legislat-iye judgment as expressed in enactments providing for an appropriation of property, but it will not be conclusive, (p. 277.)</p> <p>3. Same — Delegation of Powers.</p> <p>Section 69a and its sub-divisions, chapter 54, Code 1899, in so far as it attempts to confer the power and right of eminent domain upon the owner or owners, lessee or lessees oí timber or timber lands, quarries, &c. to be exercised by them in procuring rights oí way for their private benefit and not for the public use, is uncon-, stitutional, null and void. (p. 277.)</p>

<p>1. Criminal Law — Conviction of Misdemeanor — Suspension of Sentence.</p> <p>The word “may,’-’ as used in section 2, chapter 160, Code 1899, is mandatory. A person convicted of a misdemeanor is under it entitled, as a matter of right, to a suspension of the execution of the judgment, (p. 281.)</p> <p>2. Habeas Corpus — Application to Supreme Court.</p> <p>Rule of practice 13 of the Supreme Court, requiring one asking a writ of habeas corpus to apply to circuit court before applying to this Court, is invalid, and will not be enforced by this Court, (p. 282.)</p> <p>3. Same — Application for Bail.</p> <p>A circuit court has power to and should bail after conviction of a misdemeanor pending a writ of error from the judgment; and application must be made to it for bail, before asking a habeas corpus of this Court to obtain bail. (p. 283.)</p>

<p>Error to Circuit Court, Lincoln County.</p> <p>J. J. Kenney was convicted of selling intoxicating liquor without a license and brings error.</p>

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

Condemnation proceedings by the city of Bluefield against A. O. Bailey and others. From an order adjudging that the city had the right to condemn, and an order filing the report of the commissioners and -allowing the money to be paid into court, defendants bring error.

<p>1. Fobgery — Definition of.</p> <p>Forgery is the false and fraudulent making or altering of an instrument which would, if genuine, apparently impose a legal liability on another or change his legal liability to his prejudice, (p. 311.)</p> <p>2. Same — Alterations of Instruments — Must be Material — When Material.</p> <p>An alteration in an instrument, to constitute forgery, must be of a material part thereof; and a material alteration of an instrument is one which makes it speak a language different in legal effect from that which it originally spoke, or which carries with it some change in the rights, interests or obligations of the parties</p> <p>■ to the writing, (p. 312.)</p> <p>3. SAME' — Alteration Material or Immaterial — Question of Lato.</p> <p>The materiality of the alteration is a question of law for the court upon the admissibility of the altered instrument in evidence, and, the alteration being shown, nothing remains for the jury to pass upon. (p. 312.)</p> <p>4. Same — Words in Oheeh Material — Figures, Not Material.</p> <p>The figures in a check, following the words in the body thereof denoting the sum called for, are not a material part of the instrument, the words being controlling in determining its legal effect, (p. 312.)</p>

<p>1. Intoxicating Licjuoits— License — Power of Municipal Authorities.</p> <p>The power reserved to the legislature, by section 46 of Art. YI. of the Constitution of this Slate, to regulate or prohibit the sale of intoxicating liquors, sustains legislation, vesting in the councils of cities and towns sole power to grant or refuse state licenses for such sales within the corporate limits thereof, (p. 319.)</p> <p>2. Same.</p> <p>So mpch of section 24 of Art. VIII, of the Constitution as commits to county courts the superintendence and administration of the internal police and fiscal afEairs of their counties, under such regulations as may be proscribed by law, and provides that no license for sales of intoxicating liquors in any municipal corporation shall be granted without the consent of the municipal authorities, is operative, as to the jurisdiction to grant or refuse licenses for such sales, only so long and to such extent as the legislature, by committing to county courts such jurisdiction, makes the function a part of the police affairs of the counties, (p. 320.)</p> <p>3. Statutes— Construction.</p> <p>In ascertaining the intention of the people in adopting a constitution all parts of the constitution must be considered, every article, section, clause, phrase and word allowed some effect, and all parts, clauses, phrases and words harmonized, if possible. Ho part or word, in it can be ignored, disregarded, treated as meaningless or denied purpose and effect, unless there be irreconcilable contradiction and repugnancy, (p. 321.)</p> <p>4. Intoxicating Liquors — Regulation.</p> <p>As section 24 of Art. VIII, gives jurisdiction to county courts, under such regulations as may be prescribed by law, a construction, denying power in the legislature to withhold, or take, from them the power to grant or refuse licenses for the sale of intoxicating liquors, would render the word “regulating” in section 46 of Article VI, useless and ineffective of any purpose, con-' trary to a rule of interpretation, universally observed by courts, (p. 322.)</p> <p>5. Constitutional Law— Gonstruetion by Legislature.</p> <p>A contemporaneous construction or interpretation, given to a constitution by the legislature, and acquiesced in by the the people and the courts for a long period of time, will not be disturbed or overthrown, unless it be plainly wrong, (p. 323.)</p> <p>6. Same — Interpretation of framers.</p> <p>In determining the meaning of a constitutional provision, the interpretation put upon it by its framers in drafting- it. and the people in putting it into operation, as shown by existing conditions and laws, left undisturbed and expressly recognized and continued. ought to have groat weight, (p. 323.)</p> <p>7. Statutes — Gonstruetion—Repeal.</p> <p>A statute revising- the whole subject matter of a former one, or a former series of statutes, becomes, by reason of its scope and purpose, to the full extent of the terms used and necessarily implied, the exclusive rule and law, governing the subject, and is, therefore, a substitute for the former statute or statutes, repealing such parts thereof as are inconsistent with the nevr act, and not a mere amendatory act, adding to or detracting from the former law. (p. 324.)</p> <p>8. Same.</p> <p>The purpose of such a statute is the provision of a new, complete and comprehensive system of law for the government of its subject matter, and the method of drafting and passing it is not the erection, upon former laws as a substructure, of amere superstructure, but the laying- of new foundations and the erection of a new and complete structure, using only such of the old materials as are deemed suitable, so that the work consists, not of mere alteration and remodeling nor of exclusion, nor of the double process of exclusion and inclusion, but of inclusion only, by means of express and implied enactments and re enactments and express and implied adoptions of existing- laivs. (p. 328.)</p> <p>9. Same.</p> <p>The language of such a statute, relating' to a given subject within the scope and purpose of the act, is presumed to be the full and complete expression of the legislative will and intention, respecting that matter; and for the law on that subject resort cannot be had to other statutes, unless the language used is incapable of conveying any meaning or has expressly or impliedly adopted them. Statutes formerly in effect relating to the same matter are not considered as laws in pari materia, (p. 329.)</p> <p>10. Same — Intent of legislature.</p> <p>However awkward, informal and unusual the language of a statute may be, the legislative will and intention manifested by it must be ascertained by the court and enforced as the law. The intention expressed is paramount to form and must have the force of law. (p. 330.)</p> <p>11. Same.</p> <p>Awkwardness, informality and terseness of expression in a statute cannot be imputed to incompetency or lack of wisdom on the part of the legislature, nor to the perpetration of fraud and trickery upon it. (p. 330.)</p> <p>12. Same — Presumption.</p> <p>An interpretation- of a statute or clause thereof which gives it no function to perform, and makes it a mere repetition of another clause, must be rejected as unsound, for it is presumed that the legislature had a purpose in using every word and clause found in a statute, and intended the terms used to be effective, (p. 333.)</p> <p>13. Same — Ambiguity.</p> <p>Ambiguity in a statute or other instrument consists of susceptibility of two or more meanings and uncertainty as to which was intended. Mere informality in phraseology or clumsiness of expression. does not make it ambiguous, if the language imports one meaning or intention with reasonable certainty, (p. 350.)</p> <p>14. Same — Implications.</p> <p>That which is necessarily implied in a statute, or must be included in it in order to make the terms actually used have effect, according to their nature and ordinary meaning, is as much a part of it as if it had been delcared in express terms. (p. 352.)</p> <p>15. Intoxicating Liquoks — Licenses— Powers of Town.</p> <p>Tested by these well settled rules of interpretation and construction, section 35 of chapter 40 of the Acts of 1891, the declared and manifest object of which was the provision of a complete system of law for the government of the town of Point Pleasant, as shown by its title and enactments, reading as follows: “The council shall prescribe, by ordinance, the manner in which licenses of all kinds. shall be applied for and granted, and it shall require the payment of the taxes thereon before delivery to the person applying therefor;” vests in the council of said town sole power to grant or refuse state as well as municipal licenses for the sale of intoxicating liquors, (p. 346.)</p> <p>16. Same.</p> <p>The language of said section is not ambiguous, but, if it were, it could mean nothing else, when read in the light of section 40 of the same act, showing knowledge on the part of the legislature of an alleged previous amendment made to the charter of said town purporting to confer such authority upon- the council in express terms, (p. 350.)</p> <p>TV. Statutes— Construction.</p> <p>In seeking the meaning and intent of a statute, regard must be had to its subject matter and all the surrounding circumstances, known to the legislature, 'p. 350.)</p> <p>18. Same — Presumptions.</p> <p>The legislature is presumed to have had full knowledge of the subject matter of statutes passed by it. (p. 350.)</p> <p>19. Constitutional Law — Legislative Poicers.</p> <p>The province of the legislature is to make and repeal laws, not to determine what is, or has been, the law, for that is judicial action within the exclusive province of the courts, (p. 351.)</p> <p>' 20. Statutes— Construction — Presumptions.</p> <p>Courts will not presume that the legislature, in referring to all the amendments made to the charter of a town, did not take notice of one of them, because, since the passage of the act, making such reference, its validity has been denied, for it was not within the domain of legislative action and power to pass upon the question of its validity, (p. 352.)</p>

Action by the Hannis Distilling Company against the Berkeley county court. Judgment for defendant was affirmed in the circuit court, and petitioner brings error.

<p>1. Appeal — liar miens Error.</p> <p>No judgment should be reversed by the Appellate Court when it is clear that the error could not have prejudiced and did not prejudice the rights of tlxo party against whom the ruling was made. (p. 413.)</p> <p>2. Evidence — Presumptions—7'failure to Produce Witness.</p> <p>Where a party to a controversy fails to examine a material and important witness in his behalf, it will be presumed that the evidence of such witness, if given, would be adverse to such party, (p. 414.)</p> <p>■3. Appeal — JRevieto —Award of Damages.</p> <p>The verdict of the jury in an action by a passenger against a carrier for injuries sustained, must govern unless the damages al- «. lowed are so excessive as to warrant the belief that the jury was influenced by partiality or prejudice, or misled by some mistaken view of the merits of the case. (p. 416.)</p> <p>4. Trial — Instructions—Damages.</p> <p>In such action where there is a demurrer to the evidence, it is not error for the court to tell the jury if the issue is found for the plaintiff ‘’the damage should be at least one cent.” (p. 416.)</p>

<p>Appeal — Review-—Evidence.</p> <p>The finding of the circuit court as to facts in issue, unless against the plain preponderance of the evidence, is conclusive upon this Court, (p. 421.)</p>

<p>1. Mines and Minerals — Leases—Oaneellation.</p> <p>A lease of a coal vein for mining for one year, and as long thereafter as the lessee may continue to mine it, the lessor to receive ten cents per ton for all coal mined payable at the end of each thirty days, and mining to begin the lioxt day. After the lapse q£ two years and three months, no mining having been done, equity will cancel the lease at the suit of the lessor, (p. 423.)</p> <p>2. Same.</p> <p>Principles upon which equity will cancel mining leases for failure to operate, (p.425.)</p> <p>3. Parties— Who May he Made.</p> <p>A mere statement in an answer that other persons are interested in the property involved, without proof of their interest, their rights not being affected by the decree, will not be ground for reversal. Where one is not interested in the controversy between the immediate litigants, hut has an interest in the subject matter which may be conveniently settled in the suit, and thereby prevent further litigation, he may be a party or not, at the option of the complainant, (p. 427.)</p>

<p>Schools and School Districts — Renewal.</p> <p>A publisher of school books, having a contract with a school book board for furnishing- school books, cannot compel such board to continue or renew his contract’ for five years after its expiration on the ground that the board has changed books without a sufficient vote. (p.482.)</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by the board of education of Flatwoods district against William H. Berry. Judgment for defendant, and plaintiff brings error.</p>

Action by the Hannis Distilling Company against the Berkeley County Court. Petition dismissed, and judgment affirmed on appeal to the circuit court, and petitioner brings error.

Action by Levi T. Hollen to recover the amount of a note as for money hail and received for his use against E. H. Crim, and M. Peck, executors of J. N. B. Crim, deceased. Judgment for plaintiff, and defendants bring error.

Action by the Ritchie County Bank against Rebecca J. Bee and. another. Judgment for the named defendant, and plaintiff brings error.

<p>1. Homicidio — Defenses — Drunkenness.</p> <p>A person -who, being sano and responsible for his acts, voluntarily becomes intoxicated, with or without a pre-conceived design to commit murder or other crime, and while intoxicated, though it be to such a degree as to render him wholly oblivious to his acts or conduct, commits a homicide or does any other act which, if clone by a person capable of distinguishing between right and wrong, is criminal, if not excused or justified in some way, is held responsible, by the law for his act, notwithstanding his mental condition at the time. (p. 408.)</p> <p>2. Samb — Insanity Indurad by Intone,ation.</p> <p>Insanity, though superinduced by long continued indulgence in intemperance or intoxication and known as delirium tremens or mania, a potu, renders the person so afflicted irresponsible for his acts, if it be of such character as to deprive him of the power to distinguish between right and wrong, whether he be undoz- the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a more fit of drunkenness. A person, not previously laboring under such disease or affliction, who voiunlariiy becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts and affliction with delusions and Hallucinations, is not irresponsible under the law for the acts done by him while in such mental condition, (p. 469.)</p> <p>R. Criminal Law — Trial—Requests to Charge— Applicability to 1evi-dence.</p> <p>The accused on tiie trial of an indictment for murder is not entitled to an instruction, propounding the inquiry as to whether he was insane at the time of the killing, if the evidence adduced by him to sustain such defense lacks tendency to show mental unsoundness antedating the drunken spree, in the course of which the killing was done, and also to show that intoxication had ceased and settled insanity ensued, as a result of habitual indulgence in intoxication. (p, 472.)</p> <p>4. Samis — Circumstantial Evidence — Writ of Error — Verdict—Review.</p> <p>The rule, defining the character and prescribing the quantum of circumstantial evidence, necessary to a conviction, saying that the facts and circumstances shown must be consistent with the hypothesis of guilt, inconsistent with every other hypothesis and conclusive in their nature and' tendency, operates upon the facts found by the jury, not on mere items of evidence adduced, and a vordiofc will not bo sot asido as based on insufficient evidence, or as being: contrary to the evidence, when the evidence relating to the facts found by the jury was conflicting and involved the credibility of witnesses, and tho court, can see that the jury may have found from the evidence facts sufficient to bring the case within (lie rule just stated, (p. 473.)</p>

<p>1. Judges — Disqualification.</p> <p>To disqualify a judge from hearing a cause, because of his interest therein, it must appear that such interest is in the subject matter of the cause, and not merely in a legal question involved therein, (p. 481.)</p> <p>2. Jury — Right to Jury Trial — 'Fraudulent Conveyances.</p> <p>The statute, section 2 of chapter 133 of the Oode, giving a creditor right to attack a fraudulent conveyance before judgment on his claim, does not deny right of trial by jury, since such suit as therein provided for is based upon fraud, and a court of equity has jurisdiction’ of the subject matter of the suit. (p. 481.)</p> <p>3. Principad and Agent — Money Duid to Agent — Recovery.</p> <p>If money has been paid to an agent for the use of his principal, the legality of the action of which it is the fruit or with which it was connected does not affect the right of the principal to recover it. (p. 483.)</p> <p>4. Contracts — Parties in Pari Delicto.</p> <p>The maxim in pari delieto potior est conditio defendentis applies only as between the immediate parties to an illegal contract, and therefore does not govern where the suit is by one of such parties to recover money received by a third party in respect of the illegal contract, (p. 484.)</p> <p>5. Trust — Jividenee to Establish,.</p> <p>The uncorroborated testimony of husband and wife is insufficient to establish an express trust in favor of the wife in property purchased in the name of the husband, against a creditor of the husband seeking to subject such property to the payment of his debt. (p. 484.)</p>

<p>1. Gabnishmbnt — Persons Subject — Special Commissioners.</p> <p>Special commissioners who have in their hands an amount arising out of a chancery cause, belonging to a judgment debtor, and which amount by decree in such cause has been directed to be paid over to the said owner, are liable to garnishment thereof, (p. 488.)</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Camisee I). Robinson and others against Flavius J. Kistler. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>Bill by II. Preston Thompson and others against Cornelia Hern and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the State of West Virginia against C. A. Davis. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Landi.'okd a'nd Tenant — Lease—Hale—Record.</p> <p>A bill of sale or assignment of a lease of real estáte, giving an estate therein for a term of three years, is not required to be recorded. in order to give title as against creditors of the vendor, (p. 515.)</p> <p>2. Samis — Real or Personal- Property Lease.</p> <p>Such term is personal property, and, as regards such creditors, is governed by the rules of law relating to other kinds of personal property, (p. 515.)</p> <p>3. Fuaudbent OostYBYAKCBS — Sale of Leans.</p> <p>Possession of such a lease by the vendor, after a sale thereof, raises a legal presumption that the sale is fraudulent as to his creditors, and oasts upon the vendee the burden of proving the fairness and good faith of the sale. (p. 518.)</p> <p>4. Samb — JCvidenue.</p> <p>To establish his title in such case, against the creditors, the vendee must prove, by sufficient evidence, that the sale was for a fair and valuable consideration, and that the vendor did'not continue to have an interest in the property by some secret understanding. (p. 519.)</p> <p>5. Samis — Consideration.</p> <p>The. consideration of such a sale may be an antecedent debt, but the vendee, to repel the presumption of fraud so raised against him, must clearly and fully prove the debt and the amount thereof, or the payment of the consideration in money or other thing, if it be other than an antecedent debt. Mere proof of admission, by the vendor, of the antecedent indebtedness, alleged as the consideration, is not sufficient as against his creditors, (p. 519.)</p> <p>6. Same — Burden of Proof.</p> <p>A deed of trust duly executed by the vendee of a lease, possession whereof is retained by the vendor, conveying the same to a trustee to secure a debt, and duly recorded, is, as against the creditors of the vendor in possession, prima facie valid, and the burden is upon them, in a suit to set it aside as fraudulent, to prove that the trust deed creditor had notice of the fraudulent intent of the vendee out of possession, the grantor in the deed of trust, (p. 521.)</p>

Application by J. Lee Bice against the Boothsville Telephone Company and others for a writ of prohibition. From an order granting the same, the telephone company brings error.

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by Arthur S. Emmons against Sarah E. Hawk and others. From a decree in favor of plaintiff, defendants appeal.</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by G. D. Robbins against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>.Error to Circuit Court, Wetzel County.</p> <p>Action by W. H. Truex against tbe South Penn Oil Company. Judgment for plaintiff. Defendant brings, error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Charles Brown was convicted of. murder, and brings ■error.</p>

Action by Myrtle M. Weese, by her next friend, against H. Yokum, administrator, and another. Judgment for plaintiff, and defendant brings error.

<p>Eminent Domain — Nature and Extent of Power.</p> <p>A condemnation proceeding in -which the principles announced' in Rench v. Pritt, decided June, 1907, are reaffirmed and applied., (p. 555.)</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by F. L. Swick against F. P. Rease and others. Decree for plaintiff, and Reáse appeals.</p>

<p>1. Master and Servant — Safe Place to Work — Duty of Master,</p> <p>A reasonably safe place to work, which it is a non-assignable duty of the master to provide, includes, in the case of railroads, the entire track over which the servant is required to pass in discharge of his duties, (p. 565.)</p> <p>2. Trial — Directing Verdict.</p> <p>Where, in an action to recover damages for injury due to negligence, there is evidence which tends in a fairly appreciable degree to prove negligence, it is error to strike out the evidence of the plaintiff and direct a verdict for defendant, (p. 564.)</p> <p>■3. Master and Servant — Negligence of Master.</p> <p>Generally, as between master and servant, negligence will riot be imputed from the circumstance alone of injury due to defective machinery or appliances, but some affirmative acts of negligence, either of omission or commission, must be shown, (p. 564.)</p> <p>-4. Same. — Negligence—Question for Jury.</p> <p>But evidence showing suspension of wire cables across a railroad track so low as to obstruct the passage of a train, and actually obstructing the track but a short time before injury results therefrom, is-sufficient, in an action by a servant injured thereby while riding home from his place of work on a construction. train of the defendant company, to constitute a 'prima fade case o£ negligence, entitling him, until explained by the defendant consistently with the exercise of due care, to have such evidence submitted to the jury, (p.566.)</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Joseph Chadister against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Action by Cornelia A. Lewis against W. C. and James A. Yates. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Appeal — Remand—Law of the Case.</p> <p>A circuit court has no power, in a cause decided by the-Appellate Court, to re-hear it as to any matter so decided, and, though it must interpret the decree or mandate of the Appellate Court, in entering- orders and decrees to carry it into effect, any decree it may enter that is inconsistent with the mandate is erroneous and. will be reversed, (p. 600.;</p> <p>2. -Same — Modification of Decree.</p> <p>A decision of the Appellate Court, declaring the right of the-owner of land, on which there is a spring of water, to have the.spring- supplied from Ule land of an adjoining proprietor, to the extent of the natural flow of water therefrom, and remanding the cause for such proceedings as may he necessary to carry the decision into effect, cannot be modified by the court below so as to give the spring owner only the quantity of water afforded by the flow on a given date. (j.COl.)</p>

Bill by Thomas Patrick et al against Larkin J. Stark et als.~ A decree was entered sustaining a demurrer to the bill, and they have brought it to this Court for review.

<p>Appeal from Circuit Court, Lewis County.</p> <p>Bill by P. M. Hale against Thomas W. Hale. Decree for plaintiff, and defendant appeals.</p>

<p>Afipeal from Circuit Court, Putnam County.</p> <p>Bill by the Eureka Pipe Line Company against Robert G. Simms and others. Decree for defendants and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bill by Eliza Ann Barker against William Hinton and others. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Teiai. — Instructions.</p> <p>Where instructions are given both for the plaintiff and the defendant touching the same subject and some are incomplete but state the law properly as far as they go, and other instructions are given which supply the defect, they will all be taken and read together, all being the instructions of the court, (p. 652.)</p> <p>2. Same.</p> <p>The purpose of instructions being to advise the jury what the law is on ■ the subject matter of the instructions, to carry out that purpose all instructions given in the case, whether for either or both parties, must be read together each in the light of the others and they must constitute a consistent whole, (p. 652.)</p> <p>3. Appeal — Revieio— Verdict.</p> <p>Point 3 of syllabus, Bosley v. Railroad Oo., 54 W. Va. 563, approved and applied, (p. 654.)</p>

Action by Lillian S. Cavender, by her next friend, against the city of Charleston. Judgment for defendant, and plaintiff brings error.

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by Sallie Fellows and her husband against the city of Charleston. Decree for plaintiffs, and the city appeals.</p>

<p>1. ' Divorce — Procedure—• Continuance.</p> <p>In suits for divorce, because of the interest of the state and public therein, more liberality should be observed in granting continuances than is usual in other civil cases, but this discretion should be equitably and carefully exercised, (p. 672.)</p> <p>2. Same — Appeal—Review—Discretion of Court.</p> <p>But even in such suit, where the question of a continuance is involved, the appellate court must, before reversal, be able to say that there has been an abuse of its discretion by the lower court, (p. 673.)</p> <p>3. Continuance — Absence of Witnesses.</p> <p>No continuance based on the absence of witnesses will be granted, unless it appears that the absent evidence is material to the issues as made by the pleadings, (p. 675.)</p> <p>4. Same.</p> <p>Where by judgment or decree a fact has been adjudged by the court to have been defectively pleaded, a continuance should not be granted to obtain evidence of such fact. (p. 675.)</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by R. N. Taylor against A. I. Godfrey and others. Decree for plaintiff. Defendants appeal.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by George Bice against the Wheeling Electrical Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1, Contract — Per/brTOcmcá— Question for Jury.</p> <p>In an action to recover the price per foot for drilling, under a contract providing that an oil well should be drilled to a certain depth unless oil be found at a less depth in quantities satisfactory to the oil company, whether such well was drilled to a proper depth, in accordance with said contract and proper skill and workmanship, is a question of fact for the jury, (p. 706.)</p> <p>2. Same.</p> <p>If one party to a contract is compelled to abandon it because of the other’s negligence or improper interference, he is excused from further performance and may sue for the part performed. (p. 706.)</p> <p>Sax® —Question for Jury. CO</p> <p>Whether there has been, such negligence or improper interference is also a question of fact for the jury. (p. 706.)</p> <p>4. Evidence — Opinion Evidence.</p> <p>The opinion of a person skilled and of long experience in drilling oil wells and taking fastened tools therefrom is admissible as to the effect of running into a well 3356 feet deep a bit dressed in a particular way, upon a large piece of iron left at the bottom of said well, and as to the effect of such a piece of metal upon the tools themselves, (p. 707.)</p> <p>5. Trial — Rejection of Evidence.</p> <p>Refusal of the court to permit a witness to answer a question which by its own terms and subject matter, taken in connection with facts and circumstances already in evidence, shows its relevancy and materiality, is not available as prejudicial error on a motion for a new trial, if the expected answer of the witness was not disclosed to the court at the time of the ruling. An appellate court, in reviewing a judgment on writ of error, can not assume, in such case, that an answer favorable to the exceptor would have been given, (p. 708.)</p> <p>6. Appeal — Review—Rejection of Evidence.</p> <p>The party complaining in the appellate court of the rejection of evidence by the court below must state the facts and evidence in the bill of exceptions, from which, to cause reversal, it must affirmatively appear to the appellate court that he was prejudiced, (p. 708.)</p> <p>7. Teial — Instructions.</p> <p>When there is conflict of testimony, ancl evidence on one side supporting one theory and evidence on the other side supporting another and conflicting theory, and the principles of law applicable to each theory are different, it is error for the court to give as instruction to the jury abstract propositions of law applicable to only one of said theories, without reference in such instructions to the evidence in the case. (p. 708.)</p> <p>8. Same.</p> <p>An instruction which undertakes to cover the whole case and to state all the circumstances and conditions to be considered by the jury in arriving at a verdict, but which omits an essential view of the case, is erroneous, (p. 709.)</p> <p>9. Same.</p> <p>While a party is entitled to have his view of the evidence stated hypothetically in an instruction, he has no right to call special attention to a part only of the evidence and the facts it tends to prove, to the exclusion of the other evidence in the case, (p. 709.)</p> <p>10. Same.</p> <p>The court ought not to give an instruction irrelevant to the case, although as an abstract proposition of law it may be correct, (p. 710.)</p>