Volume 65 — West Virginia Reports

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by S. M. Snyder against the Charleston & Southside Bridge Company. Decree for defendant and plaintiff appeals.</p>

<p>X. Ixfaxts — Actions—Guardian Ad Litem or Next Friend — Lict-bility for Costs.</p> <p>The next friend or guardian ad litem of an infant plaintiff is liable to the opposite party for costs of an unsuccessful suit. (p. 11.)</p> <p>• 2. Same.</p> <p>Such next friend or guardian ad litem does not become functus officio upon the rendition of a judgment or decree, but continues upon appeal unless removed by the court, or the relation terminates by the infant’s arrival at majority, (p. 12.)</p> <p>3. Appeal axd Ereor — Presentation and Reservation of Grounds of Review■ — Motion for New Trial — Necessity.</p> <p>In a case heard by a circuit court in lieu of a jury, it is not essential to a writ of error that there be a motion to set aside the finding and grant a new trial, (p. 13.)</p>

<p>1. Appeal and Eekok — Record—Omissions.</p> <p>The record must affirmatively show a plea and issue on it; otherwise a judgment on a verdict will for that cause alone be reversed, (p. 14.)</p>

Mandamus by the State, on the relation of the Mt. Hope Coal Company, against the White Oak Railway Company and others. Alternativa writ amended. Peremptory writ awarded.

<p>Appeal from Circuit Court, Lewis County.</p> <p>Petitions by J. B. Bradshaw and another against G. M. Farns-worth and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Harrison Count)'.</p> <p>Bill by Oliver A. Annon against John W. Brown and others. Decree for defendants, and plaintiff appeals.</p>

<p>Bill by C. E. Pyle and others against one Henderson and others. Decree for defendants and complainants appeal.</p>

<p>1. Husbaxd axd Wife — Conveyances Between.</p> <p>A conveyance of land by a wife to her busband is void and passes no title, (p. 50.)</p> <p>2. Taxation — Assessment.</p> <p>Assessment of taxes in the name of a grantee, though his deed be void, saves the land from forfeiture for non-assessment in the grantor’s name. (p. 50.)</p>

<p>Error to Circuit Court, Mineral County.</p> <p>Action by the Oliver Typewriter Company against T. T. Huffman. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Putnam County.</p> <p>Bill by the Iguano Land &-Mining Company against R. A. Jones, Mary Patton Hudson, and others. Decree for complainant, and Mary Patton Hudson appeals.</p>

<p>Appeal from Circuit Court, Kitchie County.</p> <p>Bill by Cyrus Hall against Matilda McGregor and others. Decrees for complainant, and defendants appeal.</p>

<p>1. Cbiminai. Law — Opinion Evidence.</p> <p>Opinions of non-expert witnesses in a murder case, as to whether the slain man was dead at a particular moment, and the wound was sufficiently near the heart to, injure it, are admissible evidence, (p. 82.)</p> <p>2'. "Witnesses — Gross-Examination.</p> <p>Cross-examination of a witness, to develop the fact that he had manifested partiality or friendship for the prisoner, by attempting to influence a witness for the state in his favor, is proper, (p. 83.)</p> <p>3. Same.</p> <p>It is not error to refuse to permit questions to be asked, on cross-examination, for the purpose of developing facts, in respect to which the witness had not testified on his examination in chief, nor to strike out evidence so elicited. To prove such facts, the witness should be' introduced as the witness of the party desiring such testimony, and, having failed to do so, after the court has refused to let him adduce it by a cross-examination, he is deemed to have waived it and cannot be heard to complain, (p. 83.)</p> <p>4. Ckiminal Law — Appeal—Exclusion of Evidence.</p> <p>In order to make exclusion of offered evidence available as a ground of error in the appellate court, the record must be so prepared in the court below as to show what the excluded evidence was. There is no presumption as to what answer a witness would have made to a question propounded, (p. 85.)</p> <p>5. Witnesses- — Examination—Leading Questions.</p> <p>Hostility or reluctance of a witness to disclose what he knows, justifies the court, exercising- sound discretion, in relaxing the rule against the propounding of leading questions; since, in such case, the substantial reason for the rule itself does not exist, (p. 84.)</p>

<p>1. Contracts — Construction—Guaranty.</p> <p>A statement made in the formation of a contract that is mere opinion or estimate, or about a matter which, from its nature, is not susceptible of accurate knowledge, is not a guaranty or fraud affecting the contract, (p. 89.)</p> <p>2. Same — Action—Pleading.</p> <p>Where a contract calls for the completion of a work as a condition precedent to payment, a bill or declaration seeking payment must aver completion of the work or state sufficient excuse therefor, and must state clearly the facts and circumstances of such excuse, (p. 90.)</p> <p>8. Same — Excuse for Non-Payment.</p> <p>In an action upon a contract containing a condition precedent, where the declaration or bill gives one excuse for non-compliance with such condition, another excuse not pleaded cannot he re.lied on or proven, (p. 91.)</p> <p>4. Same — Failure to Perform — Excuse.</p> <p>If a party by contract charge himself with an obligation possible to be performed, he must make it good, unless performance is rendered impossible by the act of God, the law or the other party. Unforeseen difficulties, however great, will not excuse him. (p. 90.)</p>

<p>1. Robbery — Definition.</p> <p>Robbery, at common law, as defined by text writers, is tbe felonious and forcible taking from tbe person of another of goods or money to any value, by violence or putting in fear. (p. 101.)</p> <p>2. Criminal Law — Venue.</p> <p>Under tbe constitution and laws of tbis state a crime can be prosecuted and punished only in tbe state and county where the alleged offense was committed, (p. 102.)</p> <p>3. Same — Venue—Place of Commission of Crime.</p> <p>Tbe defendant, indicted jointly with others, was tried and convicted of robbing one Wallace of two checks, one drawn by Wallace to which he signed the name of his wife, payable to one York; the other by said York payable to one Curry, the latter being delivered by' York to Wallace in exchange for the former, these transactions taking place at York’s store in Wayne county, in the presence of defendant and those indicted with him, who, armed with, dangerous weapons, had arrested Wallace in Kentucky and taken him there to procure the money or check; but the check was not actually delivered until after Wallace had been taken back to Kentucky by 'his captors, where, as directed by them, Wallace delivered it to a third person to be delivered to Curry, in whose favor it was drawn. Held:' That if defendant is guilty of robbery, the crime was committed in Kentucky, where the check of York was reduced to actual possession. (p. 103.)</p> <p>4. Robbery — “Talcing”—What Constitutes.</p> <p>By the taking, necessary in the offense of robbery, is implied that the robber must be in the possession of the thing taken; and the offense is not actually completed without such taking, and the thing taken must be of some value, and taken from the peaceable possession of the owner, the gist of the action being the force and terror employed in obtaining it. (p. 104.)</p> <p>5. Takxno by Duress.</p> <p>Quaere: Does the act of obtaining a check from a person, under duress, as proven in this case, constitute the crime of robbery? The question discussed and authorities cited, but not decided. (p. 104.)</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by George W. Lazear and others against the Ohio Talley-Steel Foundry Company and others. ' Decree for plaintiffs, and defendants Mackintosh, Hemphill & Co. appeal.</p>

<p>Appeal from. Circuit Court, Roane County.</p> <p>Bill by Hal. H. Depue and others against H. W. Miller and others. Decree.for defendants, and complainants appeal.</p>

Bill by Edna Ethel Talbott and others by John J. Hendrick, their next friend, against George M. Curtis and others. Decree for complainants, and defendants appeal.

<p>1. Taxation — Setting Aside Tax Deeds — Persons Entitled to Sue.</p> <p>To set aside a tax deed the complainant must show in himself title to, or right to redeem, the land. If he has neither, he has no equity enabling him to disturb a tax deed in relation to it. (p. 141.)</p> <p>2. Equity — Evidence—Sufficiency—Waiver of Objections.</p> <p>A plaintiff is responsible for his own showing, and a defendant is not called upon to remind him of insufficiency in weight of his evidence, by exception thereto before submission of the cause, (p. 142.)</p> <p>3. Bankruptcy — Deed from, Assignee — Effect as Evidence.</p> <p>In suits pending prior to the passage of chapter 76, Acts of 1907, a deed from assignees in bankruptcy is not evidence of title, unless there is introduced in support of it enough of the record of the proceedings of the bankrupt court on which it is based to vouch authority for its execution and to show that the court had jurisdiction of the person whose property is directed to be conveyed and of the subject-matter, (p. 142.)</p> <p>4. Evidence — Presumptions—Failure to Present Evidence.</p> <p>If a party have it in his power to present a fact necessary or beneficial to his case, his failure to present it is taken as conclusive of the non-existence of such fact. (p. 142.)</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by the Chicago Art Company against E. W. Thacker and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by William G. Plant against Dexter G. Fittro and others. Decree for defendants, and plaintiff appeals.</p>

Bill by tlie Glade Coal Mining Company against Priscilla C. Harris and Margaret B. Stalnaker and Henry Holsberry and others. Decree for complainant, and defendants Margaret B. .Stalnaker and Henry Holsberry appeal.

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by Pearl Earle and others against Jesse C. Coberly and others. Decree for defendants, and complainants appeal.</p>

<p>1. Subrogation — Elements.</p> <p>Subrogation contemplates some original privilege on the part ' of him to whose place substitution is claimed, and where no such privilege exists there is nothing on which the right can he based, (p. 169.)</p> <p>2. Mormy Paid — When Action Lies.</p> <p>An action in assumpsit lies where one at another’s request, or as that other’s surety, pays on lays out money for him. It is then an action for money paid, laid out and expended, (p. 169.)</p> <p>3. Equity — Jurisdiction—Establishment of Debt.</p> <p>Ordinarily a court of law is the proper forum in which to establish a debt. For equity to interpose, there must be something more than a mere claim or demand; there must appear some equity in relation to such claim or demand — something remedial' to plaintiff that the law does not give. (p. 170.)</p>

<p>1. Insurance — Accident—“Voluntary Exposure” to Unnecessary Danger.</p> <p>Either reckless or deliberate encountering of known danger, or danger so obvious that a reasonably prudent man would have observed and avoided it, if the circumstances were not such as necessitated the encountering thereof, is a voluntary exposure within the meaning of a clause in an accident insurance policy, limiting the liability of the insurer in case of an injury resulting from “voluntary exposure to unnecessary danger or obvious risk of injury.”' (p. 174.)</p> <p>2. Same.</p> <p>Unconsciousness of the danger at the moment of injury does not excuse the insured, except in those instances in which he was ignorant of the danger and under no duty, from the obviousness thereof, to know its existence, (p. 175.)</p> <p>S. Same.</p> <p>If the danger is obvious and there is nothing in the situation of the insured or the circumstances surrounding him, that in any way precludes deliberation, freedom of action or choice of conduct, such as a sudden peril, which he had no reason to expect, or the like, and he encounters it, and is injured, the exposure is voluntary, (p. 176.)</p> <p>4. Same.</p> <p>In an issue raised under such a clause, the rights of the parties are fixed and determined by the contract, not the law of negligence, but certain general principles, operative alike in controversies arising ex contractu and ex delicto, have application and, of these, some are recognized in the law of negligence, (p. 175.)</p> <p>5. Statutes — Construction—Penal Statutes.</p> <p>Penal statutes are strictly construed, (p. 177.)</p> <p>6. Railroads — Operation—Jumping On or Off Trains.</p> <p>Section 4282', Code of 1906, making it criminal for persons, not passengers or employes of railroads, to jump on or off of railway engines, cars or trains, does not inhibit such conduct in an employe of a railroad company, whose duties are confined to-work in its shops, and do not require him to go upon or about its engines, cars or trains when in use on its tracks or yards, (p. 177,)</p> <p>7. Tbial — Direction of Verdict.</p> <p>On a motion therefor, a trial court should direct a verdict when the evidence is insufficient to sustain one different from that which the court is asked to direct, (p. 177.)</p> <p>8. Same — Instructions—Matters' Not Supported by Evidence.</p> <p>An instruction not founded upon evidence, that is, one embodying a proposition the evidence does not tend in an appreciable degree to support, should not be given, (p. 179.)</p> <p>9. Same — Instructions—Ignoring Evidence. *</p> <p>In an action on a policy of insurance, in which the defense is predicated on a clause limiting liability, when the injury has resulted from voluntary exposure to unnecessary danger or obvious risk, instructions, ignoring many important facts, disclosed by the evidence, and telling the jury they may find for the defendant, if they believe the insured did certain isolated acts, -which would not in themselves, under all circumstances, make out, in law, a good defense under such a clause, are properly refused, (p. 177.)</p>

<p>1. Appeal and Error — Dismissal—Failure of Jurisdiction.</p> <p>If, after a decree denying relief on a bill to foreclose a mortgage, and before submission of an appeal therefrom in the appellate court, tlie mortgagee convey tlie mortgaged premises to a stranger to tlie record, verbally agreeing witli the grantee to refund the purchase money in case the property shall be sold in the -pending suit, and not purchased by the grantor, no failure of appellate jurisdiction is thereby wrought, and a motion to dismiss the appeal, predicated only on these facts, will be overruled. (p. 181.)</p> <p>2. Mortgages — Absolute Deed as Mortgage — Foreclosure.</p> <p>The grantee in a deed, absolute on its face, upon showing the same to be in fact a mortgage, may foreclose it in equity, as if it were in form as well as fact a mortgage, (p. 182.)</p> <p>3. Same.</p> <p>The application of the rules and principles, by which such a deed is shown and declared to be a mortgage, is not precluded by a recital therein, purporting to cancel or release antecedent indebtedness, constituting the consideration for the conveyance, payment whereof was intended to be secured thereby, (p. 183.)</p> <p>4. Same — Parol Evidence.</p> <p>Parol 'evidence is not admitted in such cases to vary or contradict the terms of the deed, but to establish an, independent equity, founded on the purpose and intent of the parties to the instrument, (p. 183.)</p> <p>5. Samé — Actions to Foreclose — Judgment—Scope of Relief.</p> <p>In the view of a court of equity, a mortgage constitutes a mere lien for indebtedness, and, on a bill to forclose it, the court may give full, complete and final relief by a personal decree against the mortgagor for the amount of the debt and an order for the sale of the land to satisfy the lien, in default of payment within a reasonable time. (p. 184.)</p> <p>6. Executors and Administrators- — Actions to Foreclose Mortgage.</p> <p>On a bill against a living mortgagor and the administrator and heirs of another who is dead, to foreclose a mortgage, no decree need be pronounced against the administrator if the pleadings, proofs and report of the commissioner, to whom the cause was referred, do not disclose any personal estate in the hands of the administrator unadministered, (p. 185.)</p> <p>7. Mortgages — Actions to Foreclose — Reference—Attendance of Guardian.</p> <p>An exception to a commissioner’s report in a chancery suit to forclose a mortgage, on the ground that the guardian ad litem of infant parties did not attend the taking of the evidence and the execution of the decree of reference, is properly overruled, since no statute nor rule of practice requires such attendance in such a suit. (p. 184.)</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by the County Court of Mason County against Mary Thornburg and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Alva Watkins against Pasquella Angotti. Judgment for plaintiff, and defendant brings error.</p>

<p>Petition by the Chesapeake &.Ohio Railway Company for a writ of prohibition against J. E. McDonald and others.</p>

Trespass on the case by J. L. Helms against .the Greenbrier Talley' Cold Storage Company. Plaintiff had judgment, and, from an order setting the same aside and granting a new trial, brings error.

Proceedings in the County Court by the Ritchie County Bank for relief from an erroneous assessment for taxation. The County Court sustained a demurrer to the petition and dismissed it, and the bank appealed to the circuit court, where the judgment of the County Court was reversed- and the cause remanded, and the County Court brings error.

<p>Petition of the West Virginia National Bank for writ of mandamus to B. 0. Dunkle, assessor.</p>

Action in a justice’s court by M,. L. Smith against the West 'Virginia Central Gas' Company. There was a default judgment for plaintiff, and defendant appealed to the circuit court, which court dismissed the appeal, and defendant brings error.

Action in a justice’s court by H. D. Wiggin and others against J. J. Manldn. There was a judgment for defendant, and plaintiffs appealed to the circuit court, where defendant again had judgment, and plaintiffs bring error.

Certiorari by A. C. Helmick to review the action of the County Court of Tucker County in removing him from the office of Surveyor of Roads. Judgment for Helmick, annulling the order of the County Court, and it brings error.

Action by Charles J. McKain against the Baltimore & Ohio Railroad Companjr. There was a verdict for plaint iff, and, from an order setting the same aside and granting a new trial, he brings error.

Action by Isaac J. Lohr against William T. George and others to set aside a tax deed. Decree for defendants, and complainant appeals.

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

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by James H. Iioylman, administrator, against the Kanawha- & Michigan Kailroad Company. Judgment for plain- ' tiS. Defendant brings error.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Charles Cross and others against Isora Gall and others. Decree for plaintiffs, and defendant Gall appeals. '</p>

<p>Appeal from Circuit Court, Randolph Count}'-.</p> <p>Bill by Stark L. Baker against William Jackson. Decree for plaintiff, and defendant appeals.</p>

Action by Thomas Beard against the Indemnity Insurance Company. There was a verdict for plaintiff, and from an order setting the same aside and granting a new trial, plaintiff brings error.

County. Bill by Halfpenny & Hamilton against Tate & McDevitt and •others. ' Decree for plaintiffs for less than the amount claimed as against Tate & McDevitt, and plaintiffs appeal.

<p>1. Appeal and Error — Decisions Reviewable — Affecting Real Property — Amount in Controversy.</p> <p>This Court will entertain an appeal from a decree, rendered by a circuit court in an injunction proceeding, refusing to dissolve and prepetuating a temporary injunction affecting the use and enjoyment of real property, notwithstanding the value of the realty involved may he less than one hundred dollars, (p. 307.)</p> <p>2. Municipal Corporations — Permission to Alter Building — Unreasonable Refusal.</p> <p>Where a city council, acting under authority of the city charter and the general law, which empowers it “to provide for the rugular building of houses or other structures and to provide for the kind of material to be used in the construction thereof,” and “to make regulations guarding against danger ,or damage by fire,” passes an ordinance requiring permission to be obtained from such city council before a property owner can “alter, change or repair” a building already erected, and under such ordinance refuses permission to the owner of a house to make such minor alterations, changes and repairs, as the replacing of windows, and doors, the removing and relocation of partition walls on the inside of the house, the re-papering of the walls and the painting of the outside walls, such refusal is unwarranted and unreasonable, and the ordinance will not be construed as authorizing the city to withhold permission to make ' such minor, and necessary repairs; and the municipal officers may be enjoined from preventing the making of such alterations, changes and repairs, (pp. 208, 209.)</p>

<p>1. Frauds, Statute 1 or — Pleading■—Necessity.</p> <p>The statute of frauds may he relied on as a defense under the plea of non assumpsit, (p. 312.)</p> <p>2'. Same — Original or Collateral Promise.</p> <p>If a person make an oral promise to pay the debt of another in order to derive some benefit to himself thereby, which he did not otherwise have, such promise is an original undertaking and not within the statute of frauds; and in such case it matters not if the original promisor be not released, (p. 312 to 318.)</p> <p>3. Same.</p> <p>P. contracted to build a house for Harvey and sublet a part of the job to Howell who did a portion of it and quit because P. failed to pay him. Harvey told Howell to go on and'finish the work and he would pay him. Howell completed the job and Harvey refused to pay him. In an action on the oral promise: Held, that the promise is an original one and, therefore, not within the statute of frauds, (p. 318.)</p> <p>4. Decision Disapproved.</p> <p>' The case of Noyes’ Hx’r. v. Humphreys, 11 Grat. 636, considered and disapproved, (p. 319.)</p>

<p>1. Assumpsit, Action of — Recovery in Assumpsit — Pleading.</p> <p>Where a contract, though in writing, has been fully executed, and nothing remains to he done by defendants under it except payment to plaintiffs of the price stipulated for the work and labor done by them under the contract, in an action of assumpsit to recover the same, a special count on the contract is unnecessary; recovery may be had on the common counts in assumpsit, and the bill of particulars filed therewith, (p. 324.)</p> <p>2. Appeal and E'bboe — Exclusion, of Evidence — Review.</p> <p>This Court will not reverse a judgment of the circuit court, for sustaining objections to questions' propounded to a witness on the trial, unless it affirmatively appears from the record what the answers of the witness thereto would have been, or if is shown what was proposed to be proven by the witness in response to the questions, and that the party complaining has been prejudiced by the rulings of the court, (p. 325.)</p> <p>3. Trial — Motion to Exclude Evidence — Waiver■ of Objection.</p> <p>If at the close of plaintiffs evidence in a trial before a jury, defendants move to exclude all of plaintiffs evidence relating to certain specific matters in controversy or items in the bill of particulars filed, and if after their motion has been overruled defendants proceed with the trial and offer evidence on the same matters in issue, they will be deemed to have waived their motion to exclude, and the rights of the parties must then be tested by reference to all the evidence in the case. (p. 32'6.)</p>

<p>Evidence — Expert Evidence Admissible.</p> <p>Expert evidence is admissible on the character and sufficiency of work done in drilling an oil well. (p. 334.)</p>

<p>1. Taxation — Double Taxation.</p> <p>The State is not entitled to double taxes on the same land under the same title, (p. 339.)</p> <p>2. Same — Sufficiency of Payment.</p> <p>In case of two assessments of the same land, under the same claim of title, for any year, one payment of taxes, un'der either assessment, is all the State can require, (p. 339.)</p> <p>3. Same — Payment of Taxes — Double Taxation.</p> <p>Payment of taxes, upon an assessment of a tract of land as a whole, nullifies a tax sale of a parcel which has been conveyed therefrom and separately assessed for the same year. (pp. 339, 340.)</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Susan C. Dent against Dever Pickens and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Greenbrier County,</p> <p>Action by Josie M. Hurxthal against the St. Lawerence-Boom &' Manufacturing Company. Judgment for plaintiff. Defendant brings error.</p>

<p>•Appeal from Circuit Court, Wood County.</p> <p>Bill by. Leota Grace Murphy against Lawrence D. Murphy Bill dismissed and Leota Grace Murphy appeals.</p>

<p>1. Fraudulent Conveyances — Creditor First Attaching — Preferences.</p> <p>A general creditor who first attacks a fraudulent conveyance obtains a lien on the property by the institution of his suit, and preferences among all of such creditors are determined by •the dates of the commencements of their suits, if separate suits are brought, or of the commencement of the suit and the filing of petitions, if all assert their rights in the same suit. (p. 358.)</p> <p>2. Same — Judgment—Creditors—Lien.</p> <p>Judgment creditors of the fraudulent debtor have liens on his real estate from the dates of their respective judgments and on his personal property from the dates of the acquisitions thereof by execution, attachment or otherwise, whether they be acquired before or after the conveyance, if they are preserved by compliance with registration and other laws provided for the purpose, (p. 359.)</p> <p>3. Chattel Mortgages — Mortgage of Stock of Goods — Retention of Possession.</p> <p>A deed of 'trust on a stock of merchandise, disclosing on its face intention to permit the debtor to remain in possession and sell and dispose of the property, replenishing the sold goods by new purchases, is fraudulent per se and void as to creditors, subsequent as well as existing, (p. 363'.)</p> <p>4. Former Decisions Disapproved.</p> <p>Principles announced- in Conway’s Admr. v. Stealey, 44 W. Va. 163, and The Horner-Gaylord Co. v. Fawcett, 50 W. Ya. 487, re-examined and disapproved, (p. 361.)</p> <p>5. Fraudulent Conveyances — Transactions Invalid — Persons Entitled to Assert Invalidity — Subsequent Creditors.</p> <p>An honest debt may be so used as to hinder, delay and defraud creditors, no matter how it originated, nor that the creditor is a subsequent one. (p. 363.)</p> <p>6. Same — Transactions Invalid — Preference to Secure Purchase Money.</p> <p>The proviso in section 2 of chapter 74 of the Code, protecting a preference, given to secure purchase money, has no application to fraudulent conveyances, (p. 364.)</p> <p>7. Same — Security for Purchase Money.</p> <p>Section 5 of chapter 74 of the Code relates to title to, and' incumbrance upon, property, and the creditors contemplated therein are lien creditors only. (p. 364.)</p>

<p>Appeal froml Circuit Court, McDowell County.</p> <p>Bill by W. C. Daniel against Grattan Gillespie. Decree for defendant, and complainant appeals.</p>

<p>1. Witnesses — Cross Examination — Impeaching One’s Own Witness.</p> <p>Cross-examination is confined to matters of tlie examination in chief. If a party wishes by his adversary’s witness to prove other matters, he must wait his turn, or, in the court’s discretion, may without waiting his turn interrogate the witness; hut in either case he makes the witness his own as to such other matters, (p. 376.)</p> <p>2. Same — Impeaching One’s Own Witness — -Contradictory Statements.</p> <p>A party may not impeach his own witness either by attacking his reputation for veracity or by proving by others previous contradictory statements. But if the witness is a party in interest, so that such statements would be admissible as admissions against his interest, the party may prove such prior admissions, though they may contradict the witness, (p. 378.)</p> <p>3. Sales — Implied Warranty.</p> <p>There is no implied warranty of quality or soundness of chattels sold. There must be either fraudulent representation or express warranty of quality, soundness or fitness, (p. 378.)</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by D. S. Thornburg, administrator of Ezra I. Blosser, deceased, against the City & Elm Grove Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Contest to determine the right and priority to administration of the estate of Adolphus Armstrong, deceased, between Louisa Butcher and others and G. EL A. Kunst and others. From the final order of the county court appointing Kunst administrator of the estate, Louisa Butcher and such others appealed to the circuit court, which court dismissed the appeal, and Louisa Butcher and such others bring error.

<p>Error to Circuit Court, Webster County.</p> <p>Action by the Buckeye Saw Manufacturing Company against A. J. Rutherford. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court of Upshur County.</p> <p>Bill by John T. Cooper against E. M. Upton. Decree for plaintiff, and defendant appeals.</p>

<p>Landlobd and Tenant — Molding Over — Renewal of Tenancy.</p> <p>Where, under a lease for a term of years, -with, reservation of a monthly rent and stipulation that the tennancy shall not he hy the year, the tenant holds over after the term, merely making payment of the monthly rent, which the landlord accepts, the renewal of the tenancy thereby implied is hy the mo nth only» not hy the year, nor for the original term. (p. 414.)</p>

Action by Charles G-. Jackson against the Wheeling Terminal Railway Company and another. There was a verdict for plaintiff, which was set aside on motion, and he brings error.

<p>Error to Circuit Court, Monongalia County. ' '</p> <p>Action by James A. Comley and wife against Wesley Eord. Judgment for defendant, and plaintiffs bring error.</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Bill by P. B. Michael against S. B. Elkins. Decree for plaintiff, and defendant appeals. ,</p>

<p>Insueance — -Action on Policy — Time in Which to Bring.</p> <p>Though a fire insurance policy provide that suit must he brought on it within twelve months from the fire, yet as it also provides that no suit shall he brought before sixty days after proof of loss, the twelve months does not begin until the end of the sixty days. (p. 438.)</p>

■Error to Circuit Court, Putnam County. Action by Bruno Cicerello, administrator of tlie estate of Prank Olvino, deceased, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.

Mandamus by the State, on the relation of one Keller, to com-, pel J. C. Grymes to give relator full access to all the correspondence, books, records, and papers of the Wake Forrest Mining Company. A peremptory writ was awarded, and Grymes brings error.

<p>Appeal from Circuit Court, Putnam County.</p> <p>Bill by II. C. Brown and others against Philip Click, administrator, and others. Decree for defendants, and plaintiffs appeal.</p>

Bill by J. W. Dudley, administrator of the estate of Mary J. Plumb, deceased, against G. W. Niswander & Co. and others. Decree for complainant, and defendants appeal.

<p>1. Curtesy — Bar—Divorce from Bed and Board.</p> <p>A decree of divorce from tied and board, with perpetual separation, in the terms provided by section 12, chapter 64 of the Code, does not bar the curtesy of the husband, against whom such decree is pronounced, in lands belonging to the wife at the time of the decree; but upon lands thereafter acquired by her it operates like an absolute divorce, thus, as to such property, barring claim to curtesy, (p. 474.)</p> <p>2. Barring Right oe Curtesy.</p> <p>Quaere: May not the court by virtue of section 11, chapter 64 of the Code, in granting such divorce, bar, by*a special order in the decree, the right of curtesy or dower in the existing real estate of the parties, or either of them? (p. 473.)</p> <p>3. Divorce — Decree—“Interest” of Parties.</p> <p>Within the meaning of the word “interest” there is usually embraced a mere contingent or inchoate interest, (p. 474.)</p>

<p>Appeal from Circuit Court;, Doddridge County.</p> <p>• Bill by John Towner against Maggie Towner and another. Decree for complainant, and Maggie Towner appeals.</p>

' Error to Circuit Court, Marshall County. Action by the Town of Cameron against John A. Hicks, as administrator of the estate of 0. Y. Benedum, deceased. Judgment for plaintiff, and defendant brings error.

<p>Appeal from Circuit Court, Marshall County.</p> <p>Bill by J. W. Berry against C. B. Colborn and others. Decree for defendants, and complainant appeals.</p>

<p>1. Justice of the Peace — Appeal—Dismissal.</p> <p>A defendant in an action before a justice appealing from a judgment against him cannot dismiss his appeal, and thus deprive the plaintiff from trying the case and getting judgment against the appellant and his sureties, (p. 504.)</p> <p>2. Same — Effect.</p> <p>An appeal from a justice’s judgment vacates and annuls the judgment, (p. 505.)</p> <p>3. Same — Appeal—Dismissal—Proof of Case by Plaintiff.</p> <p>When a defendant takes an appeal from the judgment of a justice, and abandons his appeal by asking its dismissal, the court cannot allow the motion and render the .same judgment for the plaintiff as the justice rendered, without proof. The plaintiff must prove his case. The former judgment cannot be used as proof. , (p.'506.)</p>

<p>1. Fkauds, Statute op — Operation—Modification of Contract.</p> <p>A contract for sale of coal provides that part of the purchase money shall be paid by a given day, when the vendor is to make a deed, and that if not so paid the contract shall be void, and declares this provision for payment of the essence, and there is default in such payment. No oral extension of time made after that day will bind the vendor, (p. 508.)</p> <p>2. Same — Sale of Realty — Modification of Contract.</p> <p>A defunct contract for the sale of realty cannot he revived by an oral contract, (p. 510.)</p> <p>3. Specific Performance — Payment of Consideration or Tender Thereof.</p> <p>A contract for sale of land demands payment of purchase money by a given day, and declares this provision of the essence, and if not complied with the contract to be void. Deed to be made on such payment. The vendee must pay or tender the money on the day and thus put the vendor in default, else the , vendee cannot have specific performance, (p. 611.)</p> <p>4. Vendor and Purchaser.</p> <p>Unless the contract so provide a vendor of land is not required to furnish abstract of. title, (p. 509.)</p>

<p>Error to Circuit Court, Webster County.</p> <p>Action by the Keystone Lumber & Mining Company against Arthur Brooks. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Lincoln County.</p> <p>Action by W. E. Black & Sons against B. Johnson & Son. Judgment for plaintiffs, and defendants bring error.</p>

<p>Intoxicating- Iaquobs — Place of Sale.</p> <p>One who, as agent for a retailer liquor dealer licensed in one county, solicits and receives orders for his principal in another county for liquors, to he forwarded to his principal at the licensed place of business and there filled and shipped C. O. D. to the customer, and who does not deliver the goods’or receive the money for his principal, is not guilty of the offense of selling, offering or exposing for sale or soliciting and receiving orders for spirituous liquors, etc., as provided in section 1 of chapter 32 of the Code. (p. 525.)</p>

<p>1. Equity — Inadequacy of Defense at Law.</p> <p>Although one have a defense at law, yet if it he doubtful, and he has also an equitable defense, and his defense at law would not be as complete, adequate and certain as in a court of equity he should not be required to relinquish his equitable right or defense and to depend solely on his defense at law. (p. 536.)</p> <p>2. Same — Right to Sue — Action Pending at Law.</p> <p>A defendant at law having a legal defense to an action, and a distinct ground for equitable relief against the plaintiffs claim may bring his suit in equity without waiting for the determination of the action at law, and may without being compelled to waive his legal defense by confessing judgment or otherwise, have a hearing in a court of equity on the merits of his case, and a decree for the proper relief, (p. 536.)</p> <p>3. Mines and Minerals — Leases—Gonstruction.</p> <p>Where in a lease for oil and gas there is a habendim “to have and to hold the same unto the lessee for the term of live years from this date, and as much longer as oil or gas is produced or rental paid thereon,” and whereby in order to extend the term of such lease as provided, oil or gas is required to be produced within such five years limitation, the date of the lease should' be excluded in the computation of time, unless it is plainly manifest therefrom that it should be included, (p. 538.)</p> <p>4. Same — Discovery of Oil or Gas — Effect.</p> <p>The discovery of oil or gas under a lease giving right of exploration and production, unless there is something in the lease manifesting a contrary intention, is sufficient to create vested estate in the lessee in the exclusive right to produce oil or gas provided for therein — a right, however, which may be lost by abandonment, by failure to produce oil or gas, or pursue the work of production, or development of the property, (p. 539.)</p> <p>5. Same — Bight to Produce — Abandonment or Forfeiture.</p> <p>Such right once vested by discovery of oil or gas in an upper sand will not be lost if the lessee continues to drill deeper in search of oil or gas in a lower sand, although he does not succeed in finding oil in the lower sand within the limitation prescribed by the lease. But if oil or gas be not found in the lower strata, production from the upper sand could not long be deferred without incurring the penalty of abandonment or forfeiture if forfeiture be prescribed, (p. 540.)</p> <p>6. Contracts — Substantial Performance.</p> <p>Where before the time has expired for the performance of a contract, there has been such a substantial compliance therewith by a party thereto, that gross injustice would be done him by denying him relief, equity will grant him relief as from a forfeiture, (p. 543.)</p>

<p>Error to Circuit Court, Hancock County.</p> <p>Action by George H. Johnston against the Mack Manufacturing Company. Judgment for plaintiff, and defendant brings-error.</p>

<p>1. Toets — Actions■—Evidence—Weight and Sufficiency.</p> <p>In an action for' tort, the plaintiff bearing the burden of proof, a verdict _ for him cannot be found on evidence which affords mere conjecture that the liability exists, and leaves the minds of jurors in equipoise and reasonable doubt. The evidence must generate an actual rational belief in the existence of the disputed’fact. (p. 557.)</p> <p>2. Gas — Injuries—Actions—Evidence—Burden of Proof.</p> <p>Where a liability is asserted on the ground of tort, the plaintiff bears the burden of proof of the fact on which the liability rests, and the burden to disprove such fact does not shift to the shoulders of the defendant until plaintiff’s evidence shows a state of facts sufficient to establish a rational belief of the existence of such fact. (p. 557.)</p>

<p>1. Appeal and Ekkok — Right to Appeal — Waiver.</p> <p>A party who accepts the benefit of a decree waives his right to appeal from that decree, unless he is so absolutely entitled to the benefit received that a reversal will not affect his right to it. (p. 560.)</p> <p>2. Same.</p> <p>One cannot avail himself of that part of a decree which is favorable to Mm, accept its benefit, and tlien prosecute an appeal to reverse such portion of the same decree as militates against him, when the acceptance of the benefit from the one part is totally inconsistent with the appeal from the other, (p. 561.)</p> <p>3. Same — Acceptance of Benefits.</p> <p>The defendant in a suit by which his tax deed is set aside, cannot unreservedly accept the taxes, interest and charges tendered by the bill and ordered by the decree to be paid him, and then appeal from the decree. His acceptance is a positively implied waiver of his right to appeal. Nor will an offer to return the money, made long after its acceptance, avail to prevent dismissal of an appeal in such ease. (p. 561.)</p>

<p>Executobs and Administrators — Sale of Realty — Payment of Decedent’s Debts.</p> <p>Ii, pending a suit to subject land to the payment of a judgment, the judgment debtor dies, and bis beirs to whom the land descended are made parties, the suit thus becomes one to sell the land of the heirs for the debt of the decedent, and before a sale is decreed, the accounts of the administrator of the decedent must be settled and the unadministered assets, if any, ascertained and administered by the court in relief of the realty descended to the heirs, (p. 565.)</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by Minnie B. Stafford against H. C. Jones and others. Decree for plaintiff, and defendant W. P. Hawley appeals.</p>

Bill by A. P. White, executor of the will of William J. Bailey, deceased, and another, against Bland Bailey and others. Decree for complainants, and Bland Bailey appeals.

<p>Separate original applications for peremptory writs of mandamus by Charles Capito, Howard Sutherland, and Z. M. Reese to be directed to C. L. Topping, Clerk of the House of Delegates.</p>

The McG-raw Oil & Gas Company filed a bill against R. W. Kennedy and the Crystal Ice Company, and thereafter Kennedy and the ice company filed a bill against the McGraw Oil & Gas Company, the South Penn Oil Company, and another. The cases were.heard together and from the decree the Crystal Ice Company, Kennedy, and the South Penn Oil Company appeal.

<p>Error to Circuit Court, Cabell County.</p> <p>Action by W. E. Shepherd against the Adams Express Company. Judgment for plaintiff, and defendant brings error.</p>

<p>' Error' to Circuit Court, Harrison Comity.</p> <p>The Baltimore & Ohio Railroad Company was convicted of obstructing a highway, and brings error.</p>

<p>1. Deeds — Alteration Toy Party — Effect.</p> <p>If after execution a deed for land be altered by the grantee' or by Ms privity so as to make it describe land not granted thereby, its operation as an executed contract is not affected, and the title vested by it is not disturbed. The effect of such unauthorized alteration is to deprive the party making it of all future benefits of an executory nature or obligation which he might have derived under the deed. (p. 609.)</p> <p>2. Same — Alteration—Effect Upon Rights of Parties.</p> <p>Such unauthorized alteration of a deed will not entitle the grantor by a suit in equity to set aside his deed and be reinvested with the title to the land conveyed, (p. 609.)</p> <p>3. Same — Acknowledgment—Alteration — Redelivery — Reacknowl-edgment.</p> <p>If, after it has been executed and delivered, a deed for land, with the consent of the grantors, be altered so as to make it describe a larger boundary, in order to make it effective to convey the additional land it should be re-delivered, and if it has been acknowledged before the alteration it should be again acknowledged. (p. 610.)</p> <p>4. Reformation op Instruments — Proceedings and Relief.</p> <p>In a suit by a grantor to set aside a deed and be re-invested with the title to the land conveyed on the ground that the same has been altered without his consent, the grantee therein, on his cross-bill answer charging that the land covered by the alteration represents the land actually purchased and paid for, and of which possession was given, and on which valuable improvements have been made, with the knowledge and consent of the grantor, may have specific execution of the original contract, and the grantor decreed to make a new deed correcting the mistake in the original deed, and in default thereof by him, have a commissioner appointed to ■ make, execute and deliver such corrected deed on his behalf, (p. 610.)</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by Addison Squires against Asa Squires and others. Decree for plaintiff Addison Squires, and Asa Squires appeals.</p>

<p>1. Vendor and Purchaser — Bona Fide Purchaser — FaiTúre to Record Instrument.</p> <p>Neither by subrogation, marshaling of assets nor otherwise, can land, purchased for a valuable consideration and without notice, he subjected to the satisfaction of judgments, rendered by justices of the peace against the) vendor, not docketed at the time of the recordation of the deed or contract of purchase, (p. 619.)</p> <p>2. Marshaling Assets and Securities — Nature, of Liens — Vendor’s Lien.</p> <p>If the land so purchased he hound, along with other unsold land of the vendor, by a vendor’s lien, constituting the first lien on both tracts, it should be relieved from the burden thereof, in whole or in part, according to the circumstances of the case, by application of the proceeds of the sale of such other land to the satisfaction of the lien. (p. 620.)</p> <p>3. Appeal and Error — Objections to Commissioner’s Report — Report.</p> <p>Advantage of an error in a commissioner’s report, apparent upon the face thereof, or upon the record of the cause, may be taken in the appellate court, though not noted in any exception to the report nor insisted upon in the court below, (p. 620.)</p>

The Ivanawha Hardwood Company tendered its petition in a suit by Noah Evans against J. H. Perrine praying to be made a defendant and to have its petition taken as a cross-bill against Evans, Perrine, and others. Decree for the Kanawha Hardwood Company, and Evans and another appeal. '

<p>1. Rape — General Reputation — Evidence.</p> <p>Upon a trial for rape a defendant is allowed to prove that the general reputation of the prosecutrix, before the act, was bad as to chastity, (p. 629.)</p> <p>2. Cbiminax, Law- — Instruction.</p> <p>A prisoner on trial has right to have given an instruction presenting to the jury specifically his theory or claim of defense, under the evidence, in his own language, if in law the instruction is sound, (p. 630.)</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by W. T. Taylor against Frances Russell. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Bill by Pred G. Porter against the Mack Manufacturing Company. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by J. P. McCaskey, trustee in bankruptcy of W. T. Potts, against M. L. Potts and others. Decree for defendants, and complainant appeals.</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bill by Thompson & Lively against T. G. Mann and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Application of Maude May for writ of mandamus against C. L. Topping, Clerk of the House of Delegates.</p>

<p>1. Equity — Jurisdiction—Money Lost in Gaming Contracts — Recovery.</p> <p>Courts of equity have concurrent jurisdiction with courts of law in suits to recover hack money lost in gaming contracts, regardless of the question of necessity for discovery, (p. 669.)</p> <p>2. Gaming — Partnership—Gambling Business.</p> <p>As a general rule there can he no partnership in an illegal business. This includes the business of gambling, (p. 671.)</p> <p>3. Same — Persons Engaged in Business — Joint and Several Liability.</p> <p>Where two or more persons engaged in the business of gambling, by whatever arrangement the business is conducted, if all are to share in the profits, and money is lost to them, they are all joint tort feasors, and liable jointly or severally, and may be sued jointly or "severally by the loser to recover the money lost to them. (p. 672.)</p> <p>4. Equity — Recovering Back Money Lost in Gaming — Gross-Bill.</p> <p>In a suit in equity by one to recover back money lost by him to another in a gambling contract, the defendant may, by a cross bill, or a cross answer, also recover back money lost by him to plaintiff in such gambling contract, (p. 672.)</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by the Edwards Manufacturing Company against T. M. Carr and Sarah A. Carr. Decree for complainant, and Sarah A. Carr appeals.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by Anna Criss against Michael Criss. Decree for defendant, and complainant appeals.</p>

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

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by the South Penn Coal Company against Reese Male and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Brooke County.</p> <p>Bill by the State against George Ehrlick and others. Decree for plaintiff, and defendants appeal.</p>

Bill by Bertha Cooper, bjr her next friend, against John A. Cooper and others. Decree for plaintiff, and defendants appeal.

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill of review by T. R. Kirby and wife against L. L. Steele. Decree for plaintiffs, and defendant appeals.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by Wirt C. Ward against the Hotel Randolph Company and others. . Decree for complainant, and defendants appeal.</p>

<p>1. Negligence — Questions for Jury — Contributory 'Negligence.</p> <p>Negligence is generally a mixed question of law and fact, and wlien the evidence is conflicting in relation to the existence of such facts as would show negligence if the facts were undisputed; or when the facts admitted to he true, or clearly proven and not denied, are such that reasonable men might draw different conclusions from them, the question of negligence is for the jury. The- same is also true in relation to contributory negligence which, under the law of West Virginia, is a matter of defense, (p. 735.)</p> <p>2. Master and Servant — Duty to Warn — Infant Servant.</p> <p>It is the duty of the master to warn his servant of the dangers incidental to his employment, unless they are so obvious that it may be fairly assumed that the servant fully comprehended them. If the servant is an infant, this duty becomes more imperative, (p. 733.)</p> <p>3. Same.</p> <p>Whether, or not, a master is liable to his infant servant for injury received by him in the course of his employment, depends upon, the mental capacity of the infant to comprehend and avoid the dangers incidental thereto, and upon the question whether, or not, he was fully informed iin relation to such dangers, so as to charge him with having voluntarily assumed the risk of injury, (p. 733.)</p> <p>4. Same — iInjuries to Servant — Infant Servant.</p> <p>Between 7 and 21 years, the age of the infant is only an evidential fact bearing on the question of his mental capacity to comprehend and avoid danger, (p. 732.)</p> <p>5. Same — Injuries to Servant — Infant Servant — Presumptions.</p> <p>An infant 14 years of age or over, is presumed to possess sufficient mental capacity to comprehend and avoid danger, and if he relies on his want of such capacity the burden of proving , it is on him; but if under the age of 14, he is presumed not to possess such capacity, and in an action b,y him for negligently causing his injury the burden of proving his capacity is on the defendant, (p. 734.)</p> <p>6. Same — Injury to Servant — Actions—Questions for Jury.</p> <p>Whether, or not, an infant possessed sufficient mental capacity to comprehend and avoid the dangers incidental to his employment, and whether or not lie was aware of Ms danger and could have avoided it by the use of such care as might reasonably be expected in one of his age, are questions of fact for the jury. If he did not possess such capacity he could not be guilty of contributory negligence, (p. 736.)</p> <p>7. Same — Injuries to Servant — Infant Servant.</p> <p>The master will not be relieved from liability to an infant for an injury received in the course of his employment, on the ground that the injury was the result of mere accident, or of the negligence of a fellow servant, if the infant did not have sufficient capacity to comprehend and avoid the dangers incidental to his employment, (p. 736.)</p> <p>8. Same — Knowledge of Servant — Imputation to Master.</p> <p>A servant who is authorized by his master to employ, and to discharge, other servants and to assign their duties, is, to the extent of such authority, the agent of his master; and whatever knowledge he may have of matters pertaining to the ability and capacity of a servant employed by him, to perform a particular kind of work and to comprehend and avoid the dangers incidental thereto, will be imputed to the master, (p. 737.)</p>

<p>1. Eminent Domain — Payment Before Talcing — What Constitutes “Talcing.”</p> <p>The laying of pipe lines by a gas company in the soil of lands, without the consent of the landowner or appropriation in the manner provided by law. is a tailing of the lands within the meaning of the constitutional provision forbidding the taking or damaging of private property for public uses before payment of just compensation therefor, (p. 742.)</p> <p>2. Same.</p> <p>The impairment of the utility of one’s property by the direct invasion of his private domain is a taking of his propertjr, within the constitutional meaning, though the owner has not less of material things than he had before, (p. 743.)</p> <p>3. Same — Payment Before Taking■ — Injunction.</p> <p>An injunction lies to prevent the taking of one’s private domain, for uses of the public, contrary to the constitutional mandate, regardless of any question of damages, (p. 743.)</p> <p>4. Same.</p> <p>A question of right, and not one of damages, is raised upon an application for an injunction to prevent the taking of private property for public uses contrary to the Constitution and laws, (p. 744.)</p> <p>Same — Right to Change Locations Condemned.</p> <p>A corporation having the right of condemnation, and selecting locations upon which it exerts that right, cannot thereafter depart from the bounds of the lands condemned and voluntarily take other locations on the lands of the owner in the place of those condemned. No such exchange can be made without the landowner's consent, no matter how essential, convenient, or uninjurious it may be. (p. 745.)</p> <p>6. Same — Necessity of Payment Before Taking.</p> <p>The right of an individual to the use and enjoyment of his lands can in no wise be made to give way to public uses and convenience, except in obedience to the constitutional provision forbidding the taking of private property for such uses before payment of just compensation, (p. 747.)</p> <p>7. Same — Injunction—Equitable Estoppel — Failure to Act.</p> <p>A landowner, through whose lands locations have been condemned for the purpose of laying pipe lines to serve the public with natural gas, is not prevented from enjoining the use of other locations on his lands than those condemned because he failed to stand by and object at the time the pipe lines were laid. It is not the duty of the landowner to see that the proper locations are used; but it is the duty of the condemnor to use only the lands legally taken, (p. 748.)</p> <p>8. INJUNCTION — Mandatory Injunction.</p> <p>Where a defendant, having been restrained from the violation of plaintiff’s clearly established rights; has begun the violation with knowledge of such rights, a mandatory decree compelling the restoration of the plaintiff to his original situation may be obtained, (p. 748.)</p>

<p>1. Willb — Construction 0† Wills — Equity Jurisdiction.</p> <p>There is no - distinct jurisdiction in equity for the' construction of wills. Equity has in this particular a special and limited jurisdiction only, which is incidental to its general jurisdiction over trusts and administrations, (p. 751.)</p> <p>2. Same. ■</p> <p>Jurisdiction in' equity to construe wills arises only in cases where there is necessity, for such construction in relation to actual litigation as to matters which are proper subjects of equity jurisdiction, such as relief on behalf of an executor, trustee, cestui que trust, or legatee, (p. 751.)</p> <p>3. Same — Construction—-Action.</p> <p>One claiming under a will as devisee of a mere legal estate in real property, cannot come into equity for the sole purpose of obtaining a judicial construction of the provisions of the will upon which.he relies, (p. 751.)</p> <p>4. Appeal and Eeroe — Review—Jurisdictional Defects.</p> <p>A decree upon a bill as to which equity has no jurisdiction, though no exception is taken to such bill, will upon appeal be reversed and the bill dismissed, (p. 752.)</p>

Suit by Margaret Y. Roush and others against D. S. Griffith and another, as administrators of Moses S. Grantham, deceased. From a judgment for plaintiffs, defendants appeal. ■

<p>1. Schools and School Distkicts — Lease of School Lot — Action to Annul.</p> <p>Residents and tax payers in a school district, being patrons of a free school therein, suing for themselves and all others similarly circumstanced, may sustain a chancery suit to annul a lease of a school lot for oil and gas, as unauthorized and void, made by a board of education, and enjoin the use of the lot for such purpose, (p. 767.)</p> <p>2. Same — Board of Education — Power to Contract.</p> <p>A board of education is a quasi public corporation, existing only under statute, having only the powers given by statute and such implied powers as are absolutely necessary to execute such express powers. It cannot engage in business or make contracts outside its functions touching education. It cannot lease a school house lot for production of oil and gas. (p. 769.)</p>

<p>1. Deeds — Evidence—Conditional Delivery.</p> <p>If a deed for land, absolute and complete on its face be delivered by grantor to grantee, as an escrow, to take effect in any event, the condition is void and the deed becomes absolute, and the title passes immediately to the grantee on the delivery thereof, and the condition of the delivery of the deed cannot ' be shown by parol evidence thereof so as to defeat the deed, (p. 785.)</p> <p>2. Vendor and Purchaser — Executed Contract — Rescission.</p> <p>No question of identity of the subject matter of the contract being involved, a court of equity will not, at the suit of the vendor, set aside or rescind in its entirety an executed contract of sale of several lots of land simply because it turns out that the vendor had no title to one or more of the lots conveyed. In such case the vendee may elect to affirm the contract as to the lots to which the vendor had title and recover a proper proportion of the purchase money paid for the lot or lots of land lost for want of title of the vendor, (p. 786.)</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by Protzman’s Executor against George M. Joseph. Decree for plaintiff, and defendant appeals.</p>