Volume 64 — West Virginia Reports

<p>1. Specific Performance — Sale of Land — Oral Contract.</p> <p>It is well settled that an oral contract for the sale of land will not he specifically enforced in equity unless such contract is admitted or established by full, clear and convincing evidence, (p. 5.)</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by George O. Quesenberry against I. T. Wood and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Bill by E. T. Crawford and W. L. Ashby against Allen Workman. Decree for plaintiffs, and defendant appeals.</p>

<p>1. Tiujsts — Validity•—Want of Consideration — Statute of Frauds.</p> <p>Where there is an absolute conveyance of land, though not upon valuable consideration, upon oral trust to hold it for the use of the grantor, and to reconvey it to him on request, such trust will not be enforced in equity. The statute of fraud forbids it. (p. 20.)</p> <p>2, Same — Necessity of Writing.</p> <p>• Where land is conveyed to one, for valuable consideration paid by him, coupled with a trust to hold for the use of a third party, who pays nothing, such trust must be declared, or proven by a writing-signed by the grantee. An oral trust will not do. (p. 20.)</p> <p>3. lÜYnxENCE — Declaration of Grantor.</p> <p>Declaration made by a grantor in a deed conveying absolute estate in land, made after such conveyance, that another person is owner of the land, or that the grantee holds in trust for him, are not admissible to impair the rights of the grantee conferred by such conveyance, (p. 23.)</p> <p>4, Frauds, Statute or — Transfer of lieality — Disclaimer.</p> <p>One cannot lose his vested title to land by mere oral admission that it belongs to another. It has long been settled that oral disclaimer of a vested freehold in land can only be by a deed or in a court of record, (p. 24.)</p>

<p>Error to Circuit Court, Wood County.</p> <p>Charles Lavin was convicted of malicious shooting and he brings error.</p>

<p>1. Gifts — Parol Gift of Land.</p> <p>To establish an equitable title to land in a child, under a parol gift thereof by the parent, it is necessary to prove, by direct, unequivocal and clear evidence, the gift, identification of the subject matter as to location and quantity, notorious and exclusive possession thereof, and substantial improvement of thesame. (p. 31.)</p> <p>2. CONTRACTS — Construction.</p> <p>The significance of language used in a parol agreement always depends upon the situation of the parties at the time, their prior and subsequent conduct, the nature of the subject matter, the purposes they had in view and all the surrounding circumstances. It sometimes means more, and sometimes less, than the words employed signify in their usual and ordinary acceptation, (p. 31.)</p> <p>3. Gift — Parol Gift of Land.</p> <p>Declarations and conduct of a father importing a gift of the home place by him to a son, on which both resided, it being all the land then owned by the former, are properly construed to mean only a gift of the use thereof and profits derived therefrom under a parol license, such as the cutting and marketing of timber, the retention of both possession and legal title by the father, and the substantial advantages incident thereto, being inconsistent with the theory of an absolute gift, (p. 33.)</p> <p>4. Descent and Distribution — Advancements.</p> <p>■ A conveyance by a father of a portion of his land to one of his sons, by a deed reciting no consideration, practically contemporaneous with conveyances to other children, admittedly made by way of advancement out of his estate, is presumptively an advancement, and intended to be in lieu of the share in the land such son would have taken by partition on the death of the father intestate. (P-88-)</p> <p>5. Appeal — Reviews—Harmless JError — Ruling on Demurrer.</p> <p>A decree on a bill, omitting parties, necessary and proper, according to the allegations thereof, hut who appear by the proof in the cause to’ have had no interest in the suit, will not be reversed for the error committed in the overruling of the demurrer, since the irregularity is merely formal and may be ignored m the interest of substantial justice, (p. 38.)</p>

M. K. Duty having obtained a judgment against M. K. Sprinkle, and an order of sale of real estate belonging to her, in an attachment proceeding for the collection of a balance due on a note executed by her and her husband, D. A. Sprinkle, who were then nonresidents, thereafter M. K. and D. A. Sprinkle appeared and filed their petition for a rehearing, as authorized by Code 1899, chapter 106, section 25 (Code 1906, section 3560.) There was a judgment confirming the former…

<p>1. Attoeney and Olient — Misconduct—Disbarment.</p> <p>Gross infidelity by a prosecuting attorney to his trust and duty as such officer, being connected with his character as an attorney,, is misconduct for which his name may be stricken, by summary process, irom the roll of attorneys entitled to practice in a court, (pp. 48, 52.)</p> <p>2. Same.</p> <p>Indictment and conviction for the offense which constitutes such-misconduct are not essential to justify such action by summary process, (p. 50.)</p> <p>3. Same — Procedure.</p> <p>In such case, formal allegations and technical descriptions of the-misconduct are not required. It is sufficient that defendant is-plainly charged and reasonable notice given him to answer. (P- 48.)</p> <p>4. Same — Limitations.</p> <p>Such charge of misconduct, as ground of disbarment as aforesaid, is not subject to the’defense of the statute of limitations as a matter of law, nor is the place of such misconduct material, (p. 50.)-</p> <p>5. Same.</p> <p>Misconduct which justifies action as aforesaid is such as shows. the attorney to be unworthy of public confidence and an unfit person to be entrusted with the duties of the profession, (p. 48.)</p>

Application by A. W. Darnell for writ of prohibition against A. C. Vandine, mayor and others. Writ granted, and defendants bring error.

<p>1. Appeal — Record—Bill of Exceptions.</p> <p>Where there is no order of the court in term making a bill of exceptions a part of the record, or of the Judge thereof in vacation and duly recorded certifying the same to the clerk, as provided by section 9, chapter 131, Code, such bill of exceptions, though copied into the transcript of the record'and purporting to be signed by the judge, is no part of the record, and will not be considered in this court, (p. 56.)</p>

<p>1. Evidence — Parol Evidence — Contradicting Writing.</p> <p>T. made his negotiable note to 31. for $3,000.00, dated September 21, 1904, payable twelve months after date, and afterwards, oil December 9, 1904, delivered to II. his writing under seal designated ‘‘This Deed of Conditional Assignment,” bearing even date with said note, reciting the borrowing of said sum of money and the making of the note and that the said T, “is desirous of securing and indemnifying the said grantee in the payment of said amount of $3,000.00,” and then proceeding to assign to said M, certain royalties on coal leases to be collected by M. and ap-Xilied to the payment of said note: Held: in an action of debt upon said note the defendant will not be permitted to prove by oral testimony that the deed of assignment was delivered to and accepted by the grantee, M., for a purpose contradictory of the terms and provisions expressed therein, (p. 61.)</p>

<p>1. Trusts — Const-ruction—Jurisdiction in KqHty.</p> <p>When the meaning- of a will, deed, contract or other instrument, relating to the subject matter of a trust, is doubtful, and, by reason of such doubt, the trustee is embarrassed or exposed to danger in the execution of his trust, and the law affords him no remedy by which his rights, powers and liabilities may be defined, and his duty indicated, a court of equity will construe the instrument and declare its legal force and effect by way of advice and instruction, (p. 04.)</p> <p>2. Ixsank Piflitsoss — Duties of Committee — instruction by Court.</p> <p>The committee of a lunatic acts in a fiduciary capacity and may, in a proper case, have such relief, (p. Oñ.)</p> <p>3. Dhjsd — Construction—Interest Conveyed.</p> <p>A deed convoying land and personal property to the grantees without words of limitation or definition of their estates, but reserving to the grantors estates therein for their lives, in the following terms as to the land, “shall enjoy the free use, benefit and possession of the said land * * * during his or her natural life for residence or other purposes, free from the will or wish” of the grantees, and, as to the personal property, “shall enjoy the free use, benefit and possession during his or her natural life * * * 'for their use free from the will or wish” of the grantees, reserves estates for life in the grantors and vests remainders in fee in (he grantees, (pp. 65, 66.)</p> <p>4. Equity — Possession of Property — Remedy at Law — Life Estates — Recovery of Possession.</p> <p>The law affords the life tenant under such a deed appropriate, ready and complete remedies for the recovery of the possession of the property, and courts of equity will not entertain them for such purpose, (p. 64.)</p>

<p>Error to Circuit Court, Clay County.</p> <p>Action by J. H. Young and II. W. Ashley against Samuel Edwards and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by EL F. Guinn against T. B. Warbutton. Decree for defendant, and plaintiff appeals.</p>

<p>• Error to Circuit Court, Raleigh County.</p> <p>Action by J. W. Kidd against John Beckley and others. Judgment for plaintiff against Beckley, and he brings error.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by D. F. McMullen against Ethel Blecker. Decree for defendant, and plaintiff appeals.</p>

<p>1. Masteh and Servant — Injury to Servant — Pleading and Proof.</p> <p>The declaration charged it was defendant’s duty to have a care-ful and competent person to operate the knuckle where the cars were let down from the mine entry to the tipple feelow, ” but that, not regarding such duty, it employed “a totally incompetent and irresponsible boy of the tender age of fifteen years to-operate said knuckle and lovers necessary to operate said knuckle .in letting down said cars off the hill.” The evidence showed the word “ knuckle” was sometimes used as an inclusive term, to embrace the drum-house and all appurtenances at the head of the incline, but that the boy was employed simply to operate the chock-blocks immediately at the knuckle, and that he was fifteen years and 4 months old. The word “knuckle” was . employed in the declaration in its restricted sense. There was no material variance, (pp. 96, 97.)</p> <p>2. Negligence — Infants—Discretion—Presumptions.</p> <p>An infant, after reaching the age of fourteen years, is presumed to have sufficient' discretion and understanding to be responsible for his wrongs, to he sensible of danger and to have power to avoid _ it. (p. 97.)</p> <p>3. Master an» Servant — Ineompetency of Minor — Burden of Proof .</p> <p>As a general rule, after a boy has reached the age of fourteen years, courts do not permit juries to presume him incompetent for the duties of a particular employment, because of minority alone; and when over that age, the burden of proof is upon the one alleging ineompetency. (p. 98.)</p> <p>4. Same — Ineompetency of Servant — Evidence.</p> <p>A jury can not decide a person unfit for his employment on account of what they see or suppose they see or can read in his face and manner while testifying before them. (p. 99.)</p> <p>5. Same.</p> <p>A case where the evidence failed to establish incapacity of a minor employed over fifteen years of age. and negligence in his employment and retention, (p. 100.)</p> <p>6. Same — Employment of Incompetent Servant.</p> <p>The fact that other servants are competent, will not excuse a master in employing an incompetent person to perform a particular service, although in conjunction with such competent fellow-servants. (p. 101.)</p>

<p>. 1. Writ op Error — Affirmance—Defective Secord,</p> <p>A case in which the judgment is affirmed for want of identification in the record of necessary bills of exceptions. (p. 107.)</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Bill by Mary E. Ritz and others against William Ritz and others. Decree for plaintiffs, and John W. Adams, committee for Annie M. Ritz, appeals.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by David H. Poling and others against Charles F. Teter and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. In JUNCTION — dissolution.</p> <p>An injunction, awarded upon a bill which fails to show a good case for relief, though no exception is taken thereto, is properly dissolved, (p. 130.)</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by J. W. Johnson, agent, against J. E. Ridgely. Judgment for defendant, and plaintiff brings error.</p>

<p>Eri’or to Circuit Court, Cabell Coiinty.</p> <p>Action by Martha L. Hysell against the city of Central City. Judgment for defendant, and plaintiff brings error.</p>

<p>1. ATTORNEY AND Client — When Relationship Exists.</p> <p>As soon as a client has expressed a desire to employ an attorney and there has been a corresponding consent on the part of the attorney to act for him in a professional capacity, the relation of attorney and-client has been established; and all dealings thereafter between them relating to the subject of the employment will be governed by the rules applicable to such relation, (p. 143.)</p> <p>2. Same — Continuance.</p> <p>After such relationship has begun, any subsequent change in their agreement as to compensation, or as to the property out of which such compensation of the attorney is to come, will not affect such existing relationship, (p. 143.)</p> <p>3. Same — Conveyance to Attorney — Right to Rescind.</p> <p>Where, after such relationship has been established, 'the attorney procures from the client a conveyance to himself of part of the property involved in litigation, as compensation for his legal services therein, such conveyance will be deemed presumptively invalid,. and voidable, on principles of public policy and for prevention of wrong, at the election of the client, irrespective of the fairness or unfairness of the contract, provided such election is exercised within a reasonable time. (p. 145.)</p> <p>4. Same — Accounting by Attorney.</p> <p>If the property so obtained by the attorney is sold by him, he will be held to account as trustee for the proceeds thereof, (p. 145.)</p> <p>5. Same — Trust Relationship.</p> <p>While the relationship of attorney and client exists,‘'all purchases of outstanding interests by the attorney will be adjudged in trust for the client, (p. 145.)</p> <p>6. Same — Compensation.</p> <p>Section 13, chapter 119, Code, providing that “an attorney shall be entitled for his services as such to such sums as he may contract for with the party for whom the service is rendered,” has no application to an agreement, made after the relation of attorney and client has been established, for transfer to the former of part of the property in litigation as compensation for legal services, (p. 146.)</p>

<p>1. Equity — Jurisdiction—Adequate Remedy at Lem.</p> <p>It is -well settled that equity has no'jurisdiction when there is a lull, complete and adequate remedy at law. (p. 150.)</p> <p>2. Injunction — Dissolution—Dismissal.</p> <p>Where an injunction has been awarded and the only allegation in the bill which could, in any event, sustain an injunction is the insolvency of the defendant and that allegation is, by answer, denied and no proof taken ta support the same, the injunction will be dissolved and the bill dismissed, (p. 150.)</p>

<p>1. Damages — Liquidated Damages.</p> <p>Liquidated damges. There are two rules for inferring that the parties, by naming in a contract a sum to be paid for its breach, intended it to be as liquidated damages, not a penalty. (1) Where the damages are uncertain and not readily capable of ascertainment in amount by any known or safe rule, whether such uncertainty lies in the nature of the subject, or in the particular circumstances of the case; or, (2) where from the nature of the case and the tenor of the agreement, it is apparent that the damages have already been the subject of actual fair estimate and adjustment between the parties, (p. 156.)</p> <p>2. Contracts — Building Contract — Construction.</p> <p>A building contract provides that the contractor shall erect, under the specifications, control and to the satisfaction of named architects, “ appointed by and acting for the purpose of this contract as the agent of the said owner.” The contract provides that the building shall be completed by a given date, and on failure the contractors “shall pay the owner, by way of liquidated damages the sum of 10 Dollars per diem for each and every day thereafter that the said work remains incomplete and unfinished.’’ The architect has no power to waive such provision, (p. 159.)</p> <p>3. Same— Waiver of Conditions.</p> <p>A waiver or release of a vested right of value, under a contract must rest on valuable consideration, and must be clearly and fully proven. The burden of proof is on him who asserts such waiver, (p. 160.)</p> <p>4. Evidence — Declarations.</p> <p>A statement or representation, in ordinary cases, must refer to a present or past fact, not to a future matter, or the expression of a mere intention or opinion, (p. 161.)</p> <p>5. Contracts— Building Contracts — Extension of Time.</p> <p>A building contract provides that change or extra work may be asked by the owner, and that for ft, if extension of time for completion is wanted, the contractor must file a written claim with the architects, giving grounds of extension, and that any extension must be given in a written certificate of the architect. No allowance for delay in such completion can be demanded without such application for and certificate of extension, (p. 164.)</p> <p>6. Damages — Breach of Contract — Liquidated Damages.</p> <p>When a building contract provides that the contractor shall pay the owner a sum per day for delay in completion of the building, and the case is such that such provision is one of liquidated damage, there need be no proof of actual damage from delay, (p. 165.)</p> <p>7. Contracts — Building Contracts — Architect's Certificate.</p> <p>Where a building contract provides that the work shall b* done to the full satisfaction and under the direction and supervision of the architect, and payment shall be made on his certificate that the work has been done according to the contract, such certificate is a condition precedent to recovery by the contractors (p. 167.)</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by J. J. Melton, sheriff, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Clay County.</p> <p>Bill by Charles A. Horner against Elizabeth Amick and others. Decree for ■ plaintiff and defendants Elizabeth and W. N. Amick appeal.</p>

<p>1. Neglirencb,— Unguarded Premises — Injuries to Infants.</p> <p>The law imposes no liability upon a railroad company i'or maintaining, upon its private property, an unlocked, unfastened and unguarded turntable, in favor of children, though located in a thickly settled community, near a public street and on ground on which children are wont to congregate for play. (p. 176.)</p>

Bill to cancel a contract by P. C. Adams and others against the Guyandotte Valley Railway Company and another. Decree for defendants, and complainants appeal.

Bill by F. E. Newman against I. Y. Newman and others. Plaintiff died, and the suit was revived in the name of J.. 0. MeDermitt, sheriff, her administrator. Judgment for plaintiff, and I. Y. Newman and another appeal.

<p>Error to Circuit Court, Lincoln County.</p> <p>Action by I. F. Wilkinson against. G. M. Linkous and others. Judgment for plaintiff, and defendants bring; error.</p>

<p>1. Bbokebs — Right to Commissions — Evidence.</p> <p>The contract oí real estate brokers provided that they were ‘to make all the effort possible to make sale of the property, for which they are to receive 5 per cent, commission for their services out of the first payment. ” They procured a purchaser, who was accepted and entered into a contract of sale and purchase with their principals at a stipulated price, to be paid in full at a stipulated time on delivery of deed. Held: That the brokers were entitled to recover the commissions according to the contract, notwithstanding the purchaser, because of alleged misrepresentation by seller’s employee, refused to complete the contract or to pay any part of the purchase money, (p. 211.)</p> <p>2. Same.</p> <p>When a real estate broker has done all required of him by his contract, unless limited by express provisions thereof, he is entitled to the compensation provided for therein, (p. 211.)</p> <p>3. Same — Default of Customer.</p> <p>Where a brokerage contract makes an actual sale a condition precedent to the right oí the broker to demand compensation, if the principal and the customer found by the broker enter into a valid contract of sale, and the broker acts in good faith, the latter is not deprived of his right to a commission by the fact that the customer fails to carry out the contract, (p. 212.)</p> <p>4. Same.</p> <p>Having performed his contract, a broker can not be deprived of his commission, though for some reason not involving culpability-on his part, but due to the misrepresentation of the seller, the contract of sale fails of execution, (p. 213.)</p>

<p>1. Bills and Notes — Actions—Allegations of Ownership — Sufficiency.</p> <p>Point 4, Syllabus, in Sprinhle v. Duty, decided at this term, approved, (p. 217.)</p> <p>2. Limitation of Actions — Oomptitation of Period of limitation— Fraud.</p> <p>The fact that money is obtained by fraud-will not prevent the running of the statute of limitations, against an action to recover it back, from the consummation of the transaction, unless investigation is prevented by affirmative efforts on the part of the wrong-doer, mere silence is not sufficient, (p. 220.)</p> <p>3. Same — Offsets.</p> <p>The rule is that the statute of limitations does not cease to run . against the offsets of the defendant until the time the defendant files his plea of offsets in the case. (p. 222.)</p> <p>4. Bills and Notes — Actions—Issues, Proofs and Variance.</p> <p>In an action of debt on a negotiable note the declaration alleges that “the defendant made and signed his certain promissory note in writing” setting out a full description of the note including the place of payment. Ileld: Such note is admissible in evidence, (p. 222.) .</p> <p>5. Whit of Ekros — Review—Discretion of Lower Oourt— Continuance.</p> <p>The matter of granting a continuance of a case is within the sound discretion of the trial court; and, unless it is plainly apparent that such discretion has been abused, the appellate court will not reverse a judgment for the refusal of a continuance, (p. 223.)</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by T. A. Null against Stewart H. Bowman and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Trust — Eridence to Establish— Verbal Admissions.</p> <p>Oral evidence to establish a trust as to land by oral agreement must be clear, strong and unquestionable. This superior measure of proof is especially required to set up by oral evidence a trust as to land by verbal admission of one since deceased, (p. 227.)</p> <p>2. Hamm— Corroboration.</p> <p>Evidence of admissions or declarations by a person to establish against him an express trust for land in favor of another against his legal title, is unreliable and weak, and should be received with great caution, unless corroborated by the circumstances, (p. 227.)</p> <p>3. Witnesses — Competency—Transactions With Decedent.</p> <p>In the separate estate of a wife the husband has no estate during coverture, as at common law, nor any curtesy initiate. His curtesy vests only upon the wife’s death. Therefore, he "is a competent witness, though his evidence may go to establish his wife’s title, (p. 233.)</p> <p>4. Same.</p> <p>The interest in the result of a suit which will exclude-a witness under section 23, chapter 130, Code, must be a present, certain, vested interest, not uncertain, remote or contingent, though, if such, it matters not.how .small the interest, (p. 233.)</p> <p>5. Same — Impeachment.</p> <p>A variant statement made by one in an answer in a former suit, though not between the same parties as in the present suit, may be used to impeach him as a witness, (p. 235.)</p> <p>6. Evidence — Pleadings in Anothei' Suit — Admissions.</p> <p>An answer by one defendant in a chancery suit cannot bind, or be used against, a co-defendant, either in a former or the present suit, unless the interest of the two parties be joint, (p. 235.)</p>

<p>1. Municipal Corporations — Obstruction of Sidewalk — Oontributonj Negligence — Directing Verdict.</p> <p>In an action against a municipal corporation for injuries caused by an obstruction of a street or sidewalk, when the evidence of the plaintiff proves such facts and circumstances as show that the plaintiff was guilty of contributory negligence in causing, the injuries, the court should on the motion of the defendant exclude all the plaintiff’s evidence from the jury. (p. 240.)</p> <p>2. Negligence — Contributory Negligence — Question for Court and Jury.</p> <p>Contributory negligence, when it depends upon questions of fact and testimony, is for the jury; but when the facts are undisputed, or indisputably established by the evidence of the plaintiff, the question becomes one of law, for the court, (p. 240.)</p>

<p>3. Master and Servant — Contributory Negligence.</p> <p>When an employe willfully encounters danger known to him, or ^patent and open to be seen and known, he cannot recover damages from his employer for injury therefrom, (p. 248.)</p> <p>2. Jury Trial — Verdict Set Aside on Plain Preponderance of Evidence.</p> <p>This Court will set aside the verdict of a jury, although the evidence is conflicting, where, upon the whole evidence, it appears to be plainly wrong, and clearly against the weight of the testimony; and when, to permit such verdict to stand, would be a plain injustice to the defendant, (p. 249.)</p>

Luticia Yoho and Joe Yoho were indicted for murder. Joe Yoho was convicted of voluntary manslaughter, and on a subsequent trial Luticia Yoho was convicted of the same offense, and she brings error.

<p>Error to Circuit Court, Putnam County.</p> <p>Action by the Acme Food Company against J. B. Older. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MASTER and Servant — Independent Contractor or Servant.</p> <p>When a question arises as to whether a person, performing work or doing business for another, is a contractor for whose negligence the employer is not liable, or a servant, for whose acts the employer is responsible, the character of the contract of employment, the nature of the business and all the circumstances are to be considered in determining it. (p. 279.)</p> <p>2. Same.</p> <p>Though payment for work “by the job,” and the right and power of the person doing the work to employ assistants, to be paid by himself, ate circumstances tending to prove the relation of contractor and.contractee, and so make him an independent contractor, they are not conclusive, and must yield, if it appears that he is merely working under a general employment, having _no dominion or control over the premises, is subject at all times to the orders of the employer as to when and how he shall work and the results to be accomplished, and may he discharged at any time. Under such circumstances, the relation of master and servant exists. (p. 280.)</p> <p>3. Same — Assistant JSmployed by Servant.</p> <p>An assistant employed by a servant, paid according to the work done, not the time of service, is a servant of the person in whose business his immediate employer is engaged.. As there is no direct contract between him and the master, he is a sort of voluntary servant of the latter, (p. 282.)</p> <p>4. Same — “ Velloio Servants" — Who Are.</p> <p>Under the law, relating to negligence in the work of operating or prosecuting the master’s business, not provision or maintenance of a safe place in which to work or suitable machinery and appliances with which to work, all persons engaged in the business of a common master and so related that each, in the exercise of ordinary sagacity, ought to foresee, when accepting his employment, that he would be exposed to injury in the event of negligence on the part of the others, and they to injury from his, are fellow-Servants. (p 286.)</p> <p>5. Pleading — issues, Proof and, Variance.</p> <p>In an action for damages, resulting from injury by negligence, a variance of the evidence from the declaration, in respect to specification of mere matters of detail, concerning the manner, not the time or place at which, or the instrumentalities by which, the injury was inflicted, is immaterial, (p. 288.)</p>

Action by W. F. Lay, administrator, for the death of his intestate, Rufus Toler, against the Elk Ridge Coal & Coke Company. Judgment for plaintiff and defendant brings error.

<p>1. Pleading — Plea in Abatement — Grounds—Variance Between Bum-monsand Declaration.</p> <p>Advantage of a variance between the summons and the declaration in an action at law cannot be taken otherwise than by a plea in abatement, (p. 299.)</p> <p>2. Bkokehk — Actions for Compensation — Evidence—Admissibility.</p> <p>In an action by an agent for the sale of land to recover his commission, evidence of the prices at which adjacent and neighboring lands of the same kind were selling at the time the sale was made is admissible to show that a good price was realized, since it tends to prove faithful and efficient service on the part of the agent, (p. 300.)</p> <p>3. Customs and Usages — Amount and Time of Payment — Knowledge of Parties.</p> <p>In the absence of any express agreement as to the amount of payment for work contracted to be done, parol evidence is admissible to show a certain usage of the business, and of the locality, known to the parties, or so general and well settled as to raise the presumption that the parties dealt with reference to the usage, and with a tacit understanding that their rights and responsibilities should be determined thereby, (p. 300.)</p> <p>4 Trial — Instructions Based on Inadmissible Evidence.</p> <p>It is error to give an instruction based on inadmissible evidence, (p. 302 )</p> <p>5. Pleading — Bill of Particulars and Copy of Account — Form and Requisites — Entitling in Gause of Action.</p> <p>Evidence is admissible under an account filed with a declaration showing the names of the parties to the action, and the subject matter of which is the same as that of a count in the declaration, and which is otherwise sufficient, notwithstanding omission to endorse on it the style of the action, (p. 302.)</p> <p>6. Writ oe Error — Certificate of Trial Cowt — Controlling Transcript.</p> <p>The certificate of the trial court to the effect that certain evidence was excluded prevails over an omission from the certificate of the evidence of a note of the ruling, (p. 300.)</p> <p>7. Brokers — Compensation—Persons Liable — Owner of Undivided Interest.</p> <p>The owner of an undivided interest in a tract of land may bind himself personally to paya commission on the sale of the whole thereof, (p. 303.)</p> <p>8. New Trial— Verdict — Inadequacy.</p> <p>A verdict for only about one-half of the amount the uncontra-dicted evidence tends to prove may properly be set aside by the trial court for inadequacy, (p. 298.)</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Bill by Jake Fisher against the Berwind-White Coal Mining Company and others. Decree for plaintiff, and E. J. Berwind and others appeal.</p>

<p>1. Carriers — Injury to Passengers — Negligence.</p> <p>Where a passenger, while riding on an electric car seated on the floor between the seats with his feet resting on the running board, falls off while the car is rounding a curve, the mere fact that the car was crowded and running at the rale of speed usual under ordinary circumstances does not of itself show negligence on the part of the company, (p. 313.)</p> <p>2. Ramb— Directing Verdict.</p> <p>Under such circumstances, the lower court is justified in excluding plaintiff’s evidence and directing a verdict for the defend ant. (p. 314.)</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Aaron Catzen against Isaac Belcher. Judgment for defendant, and plaintiff brings error.</p>

<p>Petition of H. G. Kump for writ of prohibition against Ployd McDonald and others.</p>

<p>1. Mandamus — To Political Jilxec.utive Committee.</p> <p>A writ of mandamus will not bo awarded against an executive committee of a political party while engaged in canvassing returns of a primary election held by the party for nomination of candidates for public office, to compel it to declare a person nominated, who appears to be nominated by the face of the precinct returns, and to certify his nomination to the clerk of the circuit court, when the committee has allowed an opposing candidate a recount of the ballots, and has not yet made such recount, and has not yet declared the result of the election, (p. 364.)</p>

<p>1. Trusts — Rights of Beneficiaries — Alienation of Interest.</p> <p>In land conveyed to a trustee for the maintenance of a family none of the beneficiaries has any distinct or separable interest, during the existence of the trust for that purpose, which he can charge or alien, (p. 333.)</p> <p>2. Construction os Grant — Life Estate.</p> <p>A grant to wife and children, without more, creates in the wife and children in being- at the time a joint estate in equal portions but in a grant for the use and benefit of a wife and children, by its terms declaring it to be a provision for the family, any manifest indications which support reasonable construction of a life estate in the wife witli remainder to the children will bo followed, and that construction given, so that after-born children may take, and so that the life tenant may have sufficient income to support the children, (pp. 334, 33C.)</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Dominick Squilache against the Tidewater Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Pleasants County.</p> <p>Bill by Clinton I). Greenlee against Amos Steelsmith and others. Decree for plaintiff, and deféndant Butler County National Bank appeals.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Mike Doyle was convicted of an illegal sale of liquors, and brings error.</p>

<p>Application by the Welch Water, Light & Power Company for a writ of mandannus against the town of Welch and others.</p>

<p>1. Partnership — How Constituted. ■</p> <p>A partnership, in relation to strangers, (creditors), is constituted, (1) By participating- in the profits; (2) Without such participating, by lending one's name to the concern, (p. 385.)</p> <p>2. Same.</p> <p>A partnership, so far as third parties, creditors for example, are concerned, may exist without any contract between the parties forming the partnership and contrary to the intention of the parties, (p. 385.)</p> <p>3. Syddabi Approved.</p> <p>Syllabus, Point 4, Handy v. Scott, 26 W. Ya. 710, and Point 7 of Syllabus. Boyd v. Gunnison, 14 id. 1, approved and applied, (p. 387.)</p> <p>4. Affidavit — Final Decree.</p> <p>Affidavits, in no way a part of the record, as to what occurred at the time of, or "before or after, the entering of a final decree, appealed from, for the purposb of impeaching the same, cannot be considered by Appellate Court, (p. 388.)</p> <p>5. Appellate Court — Record.</p> <p>To be considered in the Appellate Court the matter should be raised by motion in the court below and made part of the record. The Appellate Court cannot look beyond the record as it is made in the lower court, (p. 388.)</p>

<p>Appeal from Circuit Court, Cabell Comity.</p> <p>Bill by T. I). Froidevaux against H. L. Jordon and others. Decree for defendants, and complainant appeals.</p>

Frank Stevenson was indicted for murder in the first degree. He entered a plea of not guilty, which was thereafter withdrawn on his motion and a plea of guilty entered.

Separate original applications by James S. Kahle and Karl F. Schoew to compel the mayor and others to restore petitioners to their rights as members-elect of the common council of Bluefield.

<p>1. Common Carrier — Schedule of Rafes — Common Law Action — When Maintainable.</p> <p>Until a schedule of rates filed and published by a common carrier, pursuant to the act of Congress entitled “An Act to Regulate Commerce,’’ lias been by the Interstate Commerce Commission declared excessive and unreasonable, a shipper cannot maintain an action at common law in a state court to recover for the excess of freights exacted on interstate shipments, if the rates charged wore those fixed by such schedule, (p. 408.)</p> <p>2. Same — Common Law Action — Prio-r Adjudication.</p> <p>On the trial of such a common law action, the rates charged being according to such schedule, nothing but the evidence of a prior adjudication of the Interstate Commerce Commission that such rates are unreasonable and unjust will justify a judgment for plain-tilf. (p. 409.)</p> <p>3. Interstate Commerce Commission — Prior Adjudication — Judicial Notice.</p> <p>The court on such trial will not .take judicial notice of such prior adjudication by the Interstate Commerce Commission, but if relied on by the plaintiff, the same must be proven by the record thereof, (p. 410.)</p> <p>4. Federal COURT’S, JURISDICTION — State Court's Jurisdiction,</p> <p>While the federal courts have exclusive jurisdiction of all actions based on specific remedies given by the said act of Congress, as under sections 8 and 9 thereof, nevertheless, after such adjudication by the Interstate Commerce Commission a state court has jurisdiction of a suit at common law brought against the carrier to recover the excess of freights paid on interstate shipments, such right of action being preserved to the shipper by section 22 of said act. (p. 411.)</p>

<p>Homicide — Orindnul Pan — Malice—Degree of Murder — Burden of Proof— Presumption from Unlawful Act — Reasonable. Doubt.</p> <p>A case in which no new principle is involved lo bo passed upon by this Court, (p. 417.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Assumpsit by Yarney & Evans against the Hutchinson Lumber & Manufacturing Company. Judgment for plaintiffs, which was thereafter set aside and a new trial awarded, and plaintiffs bring error.</p>

<p>1. PARTNEiisnip — Good Faith Toward Faoh Other.</p> <p>It is well settled that partners in all tlieir transactions must observe tlie utmost good faith towards each other, and this applies as well to their negotiations in the formation of the partnership agreement as to any subsequent transaction involving their partnership interests, (p. 434.)</p> <p>2. Same — Rescission of Contract — Fraud.</p> <p>Equity has jurisdiction to rescinda partnership contract at the instance oí a party who has been induced to enter into it by fraudulent representations, (p. 435.)</p> <p>3. Same — Accounting—Partnership Lands,</p> <p>S., E.,B., and 0. entered into an agreement of partnership for the purpose of purchasing certain lands upon which S. had options, and making improvements for a plant for mining and shipping sand, whereby F., B. and 0. were to furnish the capital to be invested and expended by S. for said purposes, S. binding himself to assign and set over to said F., B. and 0. three-fourths interest of all his right, title and interest in and to said properties, and further to pledge the absolute title to said properties to said F., B. and C. until all the purchase money, together with the total sum of other expenditures, should be repaid out of the profits of the business or otherwise, “after which monthly settlements are to be made and dividends declared if any there be to each and every member of this agreement as his interest may appear.”' S. purchased several of the properties and took absolute deeds in fee therefor in his own name, expending therefor over $12,00(1 furnished by F. and B. for that purpose, O. furnishing none of the funds. S. refused to pledge the title to the properties so purchased or otherwise to secure F. and B. for the momws so furnished by them to pay for the properties purchased. Held,: That upon a dissolution of the partnership, F. and B. were entitled to have a decree of sale of the lands so purchased for the partnership and held in the name of S. to repay them the moneys so furnished by them. (p. 437.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Elijah Puller against the Margaret Mining Company. Judgment for plaintiff, and defendant brings error.</p>

Proceeding to revive a judgment by E. H. Crim and another, as executors, against M. T. Rhinehart and others. Judgment for defendants, and plaintiffs bring error.

<p>Application by Ira C. Myers and Hiram Rubenstein for a writ of prohibition to the circuit court of Tucker county.</p>

<p>1. Bill oe’ Exceptions — Becorcl—Final Judgment.</p> <p>Must it affirmatively appear, either by a bill of exceptions made in vacation, or by the record, that the bill was made within thirty days after the final adjournment of the term? (p. 449.)</p> <p>2. Same.</p> <p>A bill of exceptions must be signed by the judge, but need not be under seal. (p. 449.) '</p>

Unlawful entry and detainer by Julius C. Feder, administrator, against John W. Hager and another. Judgment for plaintiff, and defendants bring error. *

<p>Appeal from Circuit Court, Cabell County.</p> <p>Action by J. K. Lunsford and others against C. E. Wren and others. Judgment for appellees and Wren and others appeal.</p>

<p>1. Master and Servant — Competency of Employee.</p> <p>The general rule, subject to exceptions, is that where one has contracted with a competent and fit person exercising an independent employment to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual danger, according to the contractor’s own methods, and without being subject to control except as to results of his work, will not be answerable for the wrongs of such contractor, his sub-contractors, or his servants, committed in the prosecution of such work. (p. 477.)</p> <p>2. Same — Place of Employment.</p> <p>But with respect to railroads, the non-assign able duty of the master to provide its servant a reasonably safe place to work, extends to the entire track over which the servant is required to pass in the discharge of his duties, and this is a positive duty, which although entrusted to an independent contractor, will not absolve it from liability for the non-performance thereof, (p. 477.)</p> <p>3. Same — Sub- Contractor.</p> <p>■ Where one is employed by a railroad company as an independent contractor to do certain work in the construction of its road bed, in all matters incident to the use of its tracks permitted by such com--pany, the contractor and his workmen represent the will of the company, and its responsibility remains, (p. 478.)</p> <p>4. Same.</p> <p>Although a railroad company employ a competent independent contractor, to do certain work, and in the execution of his contract permits him to suspend over its tracks guy-ropes, the effect of such contract, with respect to such ropes, is simply to delegate to such independent contractor performance of the non-assignable duty of such company, to maintain a reasonably safe place for its servants to work, rendering it liable for his negligent performance thereof. (p. 478.)</p> <p>5. Same.</p> <p>Where a railroad company has permitted the erection of guy ropes over its tracks, by an independent contractor employed to perform a part of the work of constructing its road bed, it, will, nevertheless, be rendered liable for any negligence on the part of such independent contractor in relation to such guy-ropes, whether competent or not, although it may not have had actual notice of such negligence in time to have avoided injury to its servant resulting therefrom. In such casos t,he law requires inspection and tests adequate to avoid the dangers, (p. 479.)</p> <p>6. Same — Belationship.</p> <p>Where a railroad company entrusts performance of any of its positive duties to its servants, to an independent contractor; his relationship to the defendant becomes that of vice-principal, and his negligent performance of those duties becomes notice to his principal, rendering it liable for injuries to its servants resulting therefrom.. (p. 479.)</p>

<p>1, CORPORATION- — Agreement—Stockholder’s Representation.</p> <p>A. claiming to be the owner of more than sixty per centum of the capital stock of the M. L. & I. Co., a corporation, entered into a written option with B. to sell to him, his heirs or assigns, in consideration of $25,000 cash all the property, rights and'privileges of said corporation, the sale to “cover all property of said corporation of whatever name or nature, other than book accounts and cash on hand;” and agreeing upon the acceptance of said option by B. or his heirs or assigns to call á proper meeting of the stockholders of said corporation and cause a proper resolution to be entered directing the sale of said property to said B., his heirs or assigns. Held:</p> <p>I. That without an allegation that A. represented that in making said contract he was representing and acting for all the stockholders of said corporation, the declaration is bad on demurrer.</p> <p>II. That such a contract, made by a holder of sixty per centum or more of the stock and without the knowledge or consent of the minority stockholders, is void as against public policy, (pp. 490, 493.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Wade H. Bronson against the New York Fire Insurance Company. Jugment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>William Roberts was convicted of malicious shooting, and brings error.</p>

<p>Application of E. M. Senter for a writ of mandamus to the Board of Canvassers of Wyoming County.</p>

Action in a justice’s court by Daniel Stout against the Baltimore & Ohio Railroad Company. From a judgment of the circuit court, reversing the judgment of the justice overruling a motion to quash an execution, plaintiff brings error.

<p>Appeal from Circuit Court, Taylor County.</p> <p>Bill by John T. McGraw against Traders National Bank and others. From three decrees pronounced in this cause, the defendant Traders National Bank, appeals.</p>

<p>Specific Peefokmaitce — Contract—Description of Land.</p> <p>A written contract of sale of land need not be so certain in description of the land to identify it, in and of itself, without aid from evidence outside of it. If it refers to corners, lines or other earmarks or indexes that will enable it to be identified with certainty by extrinsic evidence, it is capable of specific enforcement in equity, (p. 520.)</p>

<p>1. Bonds — Legality of Condition — Public Policy.</p> <p>A bond of indemnity given by a person under charge of felony to indemnify his bail in a recognizance for his appearance-to answer the charge is not void as against public policy, (p. 523.) '</p> <p>2. Fraudulent Conveyances — Persons Entitled to Assert Invalidity.</p> <p>A bail in a criminal recognizance against whom an award of execution upon the recognizance has been made, and to whom a bond has been given to indemnify him against all loss or damage which, he might sustain on account of having signed the recognizance,, may file a bill in equity, before payment of the recognizance debt, to set aside a deed made by the obligor in such indemnhy bond as. made with intent to defraud him as a creditor, (p. 526.)</p> <p>3. Same— Creditors.</p> <p>Any one who, but for a deed made to defraud creditors, would have right to subject the property to his demand, is a creditor entitled to sue in equity to set it aside under chapter 74, of the Code, (p. 527.)</p> <p>4. Same.</p> <p>Code, chapter 74, avoiding conveyances made to defraud creditors embraces as creditors, as a general rule, all persons who have-a valid cause of action, (p.527.)</p> <p>5. Principad and Surety — Bight of Surety to Compel Principal to Pay.</p> <p>Sureties. As to their right, in equity, to compel principal to pay for their relief, (p. 528.)</p>

<p>1. Municipal Corporations — Public Improvements — Sidewalks—Ordinance— Sufficiency.</p> <p>An ordinance of a oily council, or board of supervisors of a city, having statutory authority to cause property owners to pave sidewalks at their own expense, which requires a property owner to lay “granolithic” walk, on a street on another portion of which such walk is already laid, and saying the walk to be laid “shall be the same width as the granolithic walks which have already been laid” thereon, suffices for recovery of the cost of laying the walk by the city, on default of the property owner, although it does not specify the composition of such walk. (p. 589.)</p> <p>2. Same.</p> <p>A resolution, so passed, or order, so made, requiring plank walks to be laid on certain streets, and saying “all of said plank walks to be six feet wide and in accordance with specifications to be furnished by the city engineer and ordinances of the city,” is construed as referring to specifications already prepared and filed in the city engineer’s office and shown by ordinances, previously adopted, and is sufficient, (p. 540.)</p> <p>3. Same — Refusal of Property Owner to Lay Sidewalk.</p> <p>When such an order has been made and notice served on the property owner, his failure to lay the walks within the time prescribed amounts to a refusal to lay the same, within the meaning of the statute, and no express refusal need be proved, (p. 542.)</p> <p>4. Same — Irregularities—Effect.</p> <p>That twenty days was given the defendant in which to lay the walks in such case, the statute requiring only ten, will not preclude recovery by the city, it being an immaterial departure and beneficial to the property owner, (p. 542.)</p> <p>5. Same — Construction by Oity — Assessment of Cost — Necessity.</p> <p>A formal assessment of the cost of laying walks by the city, under such circumstances, evidenced by a city record, is not necessary to recovery, such assessment being a ministerial act, having no judicial force, under the statutes of this state, or the charter of the city of Bluefield. (p. 542.)</p> <p>6. Trial — Objections to Evidence — Waiver.</p> <p>Failure to except to the overruling of an objection to the introduction of a document, because not properly authenticated, amounts to a waiver, and is not cured or saved by the subsequent exclusion of the entire evidence as being insufficient to sustain a finding for plaintiff, (p.542.)</p> <p>7. EvidbNOE — Public Records — Compelling Production— Certified Copies.</p> <p>Ordinarily, production of public records, provable by certified copies, will not be compelled, (p. 543.)</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by William B. Ice against the Board of Canvassers of Marion county. Judgment for defendant and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill by the State against Henry C. King and others. Decree for the State, and defendants appeal.</p>

<p>1. Taxation — Forfeiture of Land — Operation and Effect.</p> <p>Under early Virginia statutes, applicable to the subject, forfeiture" of a particular land title for non-payment of taxes assessed upon the land or non-entry thereof upon the books of the commissioner of the revenue, was complete, embracing the whole title, not partial, reaching only certain estates or interests, held under the title, (pp. 555, 556.)</p> <p>2- Same.</p> <p>A legislative act, passed by the General Assembly of Virginia, March 15, 1838, providing that “all the right, title and interest of the commonwealth, or of the president and directors of the literary fund, to any land owned by” a certain person then dead,- “ under title, legal or equitable * * * and which have been forfeited to the commonwealth, or said literary fund, for the non-payment of the taxes charged thereon, or for failing to enter the same on the land books of the Commissioner of the Revenue, * x x shall be and the same is hereby transferred to, and vested in,” a certain person in trust for certain purposes, subject only to the proviso that the transfer or grant should not affect the right or title of any bona fide occupant, acquired by pre-existing law, vested in the trustee the complete original title under which such deceased person had held, except as aforesaid, although, at the time of the forfeiture, he or his heirs may have had only the equitable title or an undivided interest in the land, or no title to, or interest in, it at all, the phrase “to any lands owned by * * * under title, legal or equitable,” being regarded as descriptive of the land, not the interest or estate, granted, (p. 555.)</p> <p>•3. Same — Redemption—Owner of Undivided Interest.</p> <p>Under the provisions of section 17 of chapter 105 of the Code, section 3529, Code of 1906, the owner of an undivided interest in land may fully redeem the tract in respect to which he owns such interest, if the same be open to redemption by any other, or all, the owners under the same title, since redemption, like forfeiture, must always be of the full fee simple title of so much of the land as is redeemed, not of mere interests or estates therein, (p. 558.)</p> <p>•4. Judgment — Persons Bound — Persons Investigating Appeal.</p> <p>Persons who were not in any sense parties to a cause in the trial court, at the time of the entry of an appealable decree therein, do not subject themselves to such decree by instigating or encouraging an appeal therefrom, on which it is affirmed wholly or in part, and aiding in the prosecution thereof, (p. 559.)</p> <p>5. Same — Additional Parties.</p> <p>Persons made parties to a cause, for the first time, after the partial reversal, by the appellate court, of a decree therein, and the remanding of the cause, are not bound by such decree in so far as it was affirmed, although they procured the filing of an amended bill by which they were so made parties and defrayed expenses incident to the issuance and service of the process thereon, (p. 560, 561.)</p> <p>■ 6. BOUNDARIES — Ascertainment—Reference to Oommissionm’.</p> <p>Reference of a cause to a commissioner, to ascertain and report the location of a disputed boundary line, is proper when the evidence is conflicting as to the identity of monuments called for in the title papers; the-identity of monuments and application of the description found in the deed, patent or other muniment of title to its subject matter being questions of fact, and the rules, applicable to undisputed or clearly established facts, questions of law. (p. 566.)</p> <p>7. Equity — Appeal and Error — Finding of Commissioner — Conclusiveness — Review.</p> <p>The finding of a commissioner in chancery on a question of fact has not the force of the verdict of a jury in a law case, nor on an issue out of chancery. Though entitled to peculiar weight, the chancellor, if dissatisfied with it, may set it aside on exception and adopt his conclusion as to what the evidence proves; and, on appeal, the finding of the commissioner will be regarded merely as a circumstance, of more or less weight, to be considered with the evidence, in testing the correctness of the finding of the court, (p. 567.)</p> <p>8. BOUNDARIES — Relative Importance of Conflicting Elements.</p> <p>Quantity, courses and distances, mentioned in the description of land, must yield to. identified monuments, when there is conflict; and mere conflict in the evidence, as to the identity of monuments, does not preclude the application of this rule; it being the duty of the court or jury, as the case may be, to determine, from the evidence, whether the objects in question are the monuments called for. (pp. 568,570.)</p> <p>9. Evidence — Declarations of Adjoining Owner.</p> <p>The declaration of a deceased adjoining owner of land as to the location of a corner or line, to be admissible, must relate to a line or corner of his own land, in the ascertainment of which he has. an interest, (p. 572.).</p> <p>10. Same — Declaration by Tenant or Equitable Owner.</p> <p>If in other respects unobjectionable, such a declaration made by a tenant or equitable owner, is admissible, if paper title in the landlord or trustee be shown, (p. 572.)</p> <p>11. Same — Declaration by Land Owner — Experimental Surveys.</p> <p>Experimental surveys and maps thereof, made at the instance of a land owner, endeavoring to find the boundaries of his land, cannot be given in evidence against him as admissions as to boundary locations, unless accompanied by evidence appreciably tending to prove his adoption thereof as being correct. (p. 573.)</p> <p>12. Same — Declarations—Caveat Cases.</p> <p>In proceedings, founded on a caveat, for the determination of the location of boundary lines of entries and surveys, preparatory to the procurement of patents, the rules of evidence, relating to-. admission of the parties and locations made by them, are more liberal than those applied in proceeding to determine the location of lines designated in patents; the difference being analogous to that obtaining between proceedings for the enforcement of execu-tory contracts of sale of land and those pertaining to the vindica, tion of legal rights accruing under deeds of conveyance, (p. 578.).</p> <p>13. Boundaries — Estoppel—Representations.</p> <p>Represenations as to the locations of boundary lines, consisting of reports of surveys and maps filed in judicial proceedings, da not estop a subsequent purchaser of the land, on the theory of ac-' quiescence or otherwise, in favor of persons who were not parties to such proceedings, though they may have purchased lands on the faith of such representation. Acquiescence, to fix boundary lines, must be in the nature of an ‘ argeement evidenced by acts done upon the land, tending to prove an agreement upon definite lines and corners, fp. 579.)</p> <p>14. Same — Surveys—Admissibility in Evidence.</p> <p>Though a survey on which no patent ever issued is not admissible to prove the identity ahd locations of boundary lines and corners of an adjacent survey, carried into grant, by tlie issuance of a patent, if both surveys were made by the same surveyor, and the former only a few months later than the other, and the surveyor has long since died, it' may be given in evidence to prove the names borne by streams and other natural objects, called for in the surveys and situate in the vicinity thereof, at the dates of the surveys, and the surveyor’s knowledge of these facts, if such names and knowledge thereof become material, they being mere subsidiary issues, bearing indirectly and resultantly upon the main issue in the case.- (pp. 573, 574.)</p> <p>15. CONSTITUTIONAL Law — Due Process of Law — Sale of Forfeited Lands.</p> <p>Chapter 42, Acts of 1905, is not in violation of the federal or, state constitution as depriving former owners of forfeited land of vested rights or property without due process of law. (p. 584.)</p> <p>16. Same — Vested Mights — •Impairment of Contract Obligations.</p> <p>In a suit by the state to sell land as forfeited for non-entry on the tax books, the former owner, King, asked redemption, and he paid into court the money fixed for redemption, and a decree was made that he had right of redemption. Upon appeal the decree was reversed in so far as it fixed the sum and declared that redemption had been effected, and the case was remanded to require King to specify the parts of the- tract he wished to redeem,' and held the amount paid in not sufficient. King did not thus acquire a vested property right to redemption, nor had'he a contract with the state free from impairment by the Legislature; nor was a sale of the land thereby created by the state to King. Chapter 42, Acts 1905, is not invalid as impairing any such contract or vested right, (p. 585.)</p> <p>17. Taxation — Forfeitures—Effect.</p> <p>Land once sold as forfeited for non-entry on the tax books or transferred to junior claimants by the constitution, cannot be again sold by the state, unless the title so sold or transferred has been itself forfeited; nor in such case can it be redeemed by the former owner. (Acts 1905, ch. 42.) (p.586.)</p> <p>18. Same — Redemption.</p> <p>If the state has no right to sell forfeited land because she has once sold it under decree for some forfeiture, or it has been transferred to a junior claimant by section 3, Art. XIII, of the Constitution, the owner of the forfeited title cannot redeem, (p. 588.)</p> <p>19. Same.</p> <p>The privilege given by statute to redeem forfeited land is the mere grace of the statey not its duty, and does not constitute a vested property right in the former owner, (p. 590.)</p> <p>20. Same — Conveyance by State — Operation and Effect.</p> <p>The transfer to other claimants of land made'by section 3, Article XIII, of the Constitution, and also a conveyance under a sale in a suit to sell land as forfeited, constitute grants of the state and create new and original title, (p. 590.)</p> <p>21. Same — Forfeitures—Redemption.</p> <p>A sale of land as forfeited under decree passes to the purchaser, when conveyed, all right, title and interest vested in the state at the time by forfeiture, whether derived by forfeiture of one or more titles; but only so far as title remained in the state at the date of sale, and not transferred to another by the constitution or before sold as forfeited. Redemption goes no further. Neither affects junior claimants, unless their title was at the time forfeited, (p. 592.)</p> <p>22. Constitutional Law— Vested Rights — Rules of Evidence.</p> <p>There is no vested right in rules of evidence, and as they only concern the remedy, it is within the constitutional power of the Legislature to change them or fix the burden of proof, (p. 593.)</p> <p>23. Title of One Redeeming from Forfeiture.</p> <p>Does Chapter 42, Acts 1905, give one redeeming his land from forfeiture not only his former title, but other forfeited title? (p. 593.)</p> <p>24. Statutes — Effect of Partial Invalidity.</p> <p>Though one provision of statute is repugnant to the constitution, yet if it is distinct in operation and separable from the balance, that provision will be ignored, and the balance stand good. (p. 595.)</p> <p>25. Constitutional Law — Impairment of Contract Obligations.</p> <p>When a former owner of forfeited land asks to be allowed to .redeem, that does not create a contract by the state with him to allow redemption. The statute allowing redemption is not an offer by the the state to sell land which, when so accepted, makes a contract by the state to sell. Until actual redemption by payment and a decree of redemption there arises no vested right of property or contract, (p. 597.)</p> <p>26. Same — Eue Process of Law — Forfeiture of Land for Fonentry on' Tax Boohs.</p> <p>Article XIILsection 6, State Constitution, forfeiting land for non-entry on the tax books, is again held not contrary to the Four- . teenth Amendment of the federal constitution, (p. 603.)</p> <p>27. Same — Vested Rights — Rules of Evidence.</p> <p>The Legislature can make a deed prima facie evidence of its re-citáis or the facts stated therein, (p. 599 )</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by the State against H. C. King and others. Decree «dismissing lands of Buskirk and others, and King appeals.</p>

<p>1. Grand Juey— Conduct of Proceedings — Evidence.</p> <p>The general rule is that an indictment must be based upon legal evidence, without which it should not be returned; but grand juries are not held to the same technical rules of evidence as petit juries where their action is being passed upon by the court, (p. 629.)</p> <p>2. Same — Effect of Improper Evidence.</p> <p>The mere fact that some illegal or improper evidence may have been submitted to the grand jury, or that certain witnesses who gave evidence may have been disqualified, will not invalidate an indictment, if the grand jury had some legal and competent evidence before them on which to found the same. (p. 629.)</p> <p>3. CRIMINAL Law — Plea in Abatement — Sufficiency of Indictment.</p> <p>The question of the legality of the evidence upon which an indictment is found can only be presented by plea in abatement, upon which an issue of fact as to the competency and sufficiency thereof may be tried, (p.629.)</p> <p>4. G-eand Jury — Conduct of Proceeding — Evidence—Dying Declaration.</p> <p>If a proper predicate is laid for the admission thereof, a dying declaration, limited to such facts as the declarant could have testified to if living, being legal and competent evidence, upon a trial for murder, is legal and competent evidence upon which to found an indictment for murder, (p 629.)</p> <p>5. Indictment and Ineojimation — Evidence—Eying Eeclaration — In-dorsement of Names of Witnesses.</p> <p>An indictment for murder will not be quashed because it appears on the face thereof to have been founded upon a dying declaration, although the names of no witnesses are indorsed thereon, and it does not affirmatively appear therefrom that a proper predicate was laid for the admission of such dying declaration, (p. 630.)</p> <p>6. Ckiminai, Law — Review—Harmless Error — Reception of Evidence.</p> <p>Although on a trial for murder, evidence is received in the presence of the jury, intended for the court, to lay the foundation for admitting a dying declaration, this will not constitute- reversible error, (p. 630.)</p> <p>7. Same — Trial—Reception of Evidence — Best and Secondary.</p> <p>Although on a trial for murde2’, a proper predicate being laid therefor, proof of the loss of a written dying declaration, and oral evidence of the contents thereof, is received, it will not be error for the court on the discovery and production of the written declaration during the progress of the trial to admit it in evidence as a substitute for and in place of the oral evidence received, the original being the best evidence, the oral evidence, secondary only. (p. 631.)</p> <p>8. Homicide — Dying Declaration — Exact Words of Declarant.</p> <p>A dying declaration when offered in evidence on a trial for murder, a proper predicate being laid therefor, will not be excluded because it appears that the words employed therein by the person who took down the statement of the declarant are not the exact words employed by declarant, if it further appears that after being prepared the declaration was read over to declarant and ratified by him. (p. 631.)</p> <p>9. Same — Condition of Declarant.</p> <p>If the condition of declarant at the time of making his dying declaration, the nature of his wounds, the length of time after making the same before expiring, and all the circumstances make a prima fade case that he was then in the article of death, and conscious of his condition when he made it, such evidence should be admitted by the court, as making a prima facie case for the admission of such dying declaration, (p. 632.)</p> <p>10. Same — Review—Admission of Dying Declaration.</p> <p>The rule that a court will not interfere with the action of the lower court iri admitting evidence, unless it can see that the court below clearly erred, is applicable to the admission of dying declarations, (p. 632.)</p> <p>11. Same — Dying Declaration — Preliminary Evidence.</p> <p>The fact that a witness is permitted to testify that a dying declaration was made under oath will not be treated as reversible error, as giving undue prominence to that fact appearing on the face thereof, (p. 633.)</p> <p>12. CRIMINAL Law — Trial—Reception of Bmdence.</p> <p>A fact brought out on proper cross-examination of one being tried for murder, and going to the prisoner’s credibility as a witness, although touching incidentally on his character, not put in issue by him, will not constitute reversible error, (p. 635.)</p> <p>13. Sams — Best and Secondary Bmdence — Collateral Matters.</p> <p>Where upon a trial for murder the official character of a public officer is only incidentally and collaterally involved, the record evidence of his appointment and qualification is not necessary; evidence that he was known to be and acted as such officer being sufficient, (p. 635.)</p> <p>14. Same — Instructions—Different Themies.</p> <p>The giving of an instruction based on one theory, unless binding, is not to ignore other theories or instructions based thereon, though the theories upon which such instructions are based be inconsistent. The object and office of an instruction is to define for the jury, and to direct their attention to, the legal principles which apply to, and govern, the facts, 'proved or presumed, in the case, (p.636.)</p> <p>15. Same — Instructions—Weight of Bmdence.</p> <p>An instruction with respect to the weight and credibility to be given to the testimony of witnesses, who, in the judgment of the jury, may have willfully and corruptly sworn falsely, which tells the jury that they are at liberty to reject all of such evidence not corroborated by other testimony, or give it such weight and credit as in their judgment, from the circumstances, it is entitled to, is legal and proper. Point two of the syllabus in State v. Musgrave, 43 W. Ta. 672, in so far as it holds to the contrary, is disapproved, p. 636.)</p> <p>16. Same — Instructions—Assumptions as to Facts.</p> <p>On a trial for murder the court instructed the jury that if they found from the evidence that shortly before, or at the time of the shooting, the accused in the presence of the constable was guilty of contending with angry words to the disturbance of the peace, that such swearing was an offense under the laws of this State justifying his arrest without warrant: Meld, such instruction not erroneous as assuming by the words “such swearing” the fact submitted to the jury, the evidence on which the instruction was based tending to show that the angry words attributed to the prisoner were words of swearing, (p. 638.)</p> <p>17. Homicide — Self Defense — Resisting Unlawful Arrest.</p> <p>In exercising one’s right to resist an illegal arrest he has no right, in order to retain or regain his liberty, to take the life of the officer, unless he has reason to believe and does believe he is in imminent danger, and that it is necessary to do so in order to save his own life, or to save himself from some great bodily harm; and an instruction purporting to define such right, which omits to so state the law to the jury, is erroneous, (pp. 641, 642.)</p> <p>18. CRIMINAL Law — Instructions—Statutory Provisions — Mandatory.</p> <p>The provisions of section 5, chapter 38, Acts 1907, providing for the giving and reading of instructions to the jury and the order in which they shall be read are mandatory, not merely directory, (p. 644.)</p> <p>19. Homicide — Instructions—Dying Declaration.</p> <p>A dying declaration being legal and competent evidence on a trial for murder, though not made under oath, it is improper for the court in an instruction to the jury to attempt to discredit the same or deprive it of its proper probative force by calling the jury’s attention to the fact that such declaration “ was not taken and made under the sanction of a judicial oath.” (p. 644.)</p> <p>20. Criminal Law — Instructions—Statutory Provisions — Waiver.</p> <p>• Although it is the right of a party to have the instructions to the jury given and read as required by section 5, chapter 38, Acts 1907, yet he may waive this right, and will be regarded as having done so, unless he objects and excepts to the action of the court at the time and before the jury retii'es to consider of its verdict, (p. 645.)</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by Melvin E. Mather against Ellis Mather and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Justices of the Peace. — Judgment— Validity.</p> <p>A justices’s judgment is not void only because it does not appear by his record that the defendant was a resident of his county, (p. 652.)</p> <p>2. Same — Pleadi ng— Complaint.</p> <p>A memorandum filed by the plaintiff with a justice for suit says that the suit is for “Money due on contract — amount $125.00.” The summons says that the action is “ For the recovery of money due on contract,” claiming judgment for $125.00. The justice’s docket states the action to be “For $125.00, money due on contract.” There is no other complaint. The judgment is not void for want of a complaint, and is a lien on land. (p. 653.)</p>

<p>Error to Circuit Court, T.yler County.</p> <p>Action by Isaac McCoy against William E. Ash. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Taxation — Tat Deed, — Estoppel.</p> <p>The state is estopped by section 29 of chapter 31 of the Code from proceeding to sell, as forfeited for non-entry in the name of the former owner, land conveyed by a sheriff to a purchaser, pursuant to sale thereof for non-payment 'of taxes thereon, though the deed, because of defects in'the sale proceeding, is void as to the former owner and fails to vest' his title in the grantee therein, (p. 664.)</p> <p>% Same.</p> <p>By making such deed conclusive evidence, against all persons except the former owner, his heirs and assigns and those who might have redeemed the land within one year after the date of the sale, the statute works, by estoppel, a release, grant or transfer of the title of the former owner to the grantee therein, upon the forfeiture of such title for failure of the former owner to keep the land taxed in his name and the taxes thereon paid for five successive years, (p.664 )</p> <p>-■3. Same — Persons Concluded — State.</p> <p>Though the statute in question does not mention the state by name, as being one of the persons concluded by such deed, it must be construed as including the state in said class, so as to make it harmonize with the principles and public policy, made manifest by the organic, statutory and judicial system of law of this state, relating to taxation of land and the settlement of land titles, as an incident of the exercise of the power of taxation. (p. 665.)</p> <p>4. Same — Conclusiveness.</p> <p>The express saving in said section 29, in favor of the state, counties, districts, school districts and municipal corporations, does ■ not confer upon the state power to set aside a tax deed, for the purpose of availing herself of a forfeiture of the former owner’s, title; but only to proceed, notwithstanding the defective deed, to enforce any lien she may have on the land for prior taxes, thereon, ' treating it, not as her land, but as the land of the tax-deed grantee, or the former owner, for such purpose and to such extent, (p. 666.)</p> <p>6. Statutes — Construction With Reference to Other Statutes.</p> <p>A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith, (p. 667.)</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Lantie Stover was convicted of murder in the second decree, and brings error.</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Action by the State against the West Branch Lumber Company. From an order dissolving- an injunction, the State appeals.</p>

<p>Petition by John J. Shore for writ of mandamus to the Board of Canvassers of Wood county.</p>

<p>Petitions for mandamus by Mont Phillips, J. Tom Daniel, and A. W. Holmes to compel the Board of Canvassers of Raleigh county to reconvene and count for them certain ballots.</p>