Volume 66 — West Virginia Reports

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Action by Boman Pickens against the Coal Eiver Boom & Timber Company and others. Judgment for plaintiff, and the Coal Eiver Boom & Driving Company appeals.</p>

Petition of Charles P. Hornbrook for an appeal from an order of the county court probating a will as that of Dora L. H. Rumford, deceased, and asking that it be set aside, and that another will be declared to be her last will. The order was set aside and the clerk of the count}'' court ordered to admit to record the latter will, and George W. Lutz and another, executors under the former will, bring error.

L. W. White and Geneva Dunnigan were convicted of lewd and lascivious association and cohabitation, and thiey bring error.

Action by Joseph Back and another, co-partners, against John E. Smith. There was a verdict for plaintiffs, and the court having set the same aside, and awarded a new trial, plaintiffs bring error.

<p>Appeal from Circuit Court, Broolte County.</p> <p>Suit by William M. Fleming against John H. Chairnock and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Action by Moses Lipscomb against Lemuel Lipscomb. Judgment for defendant, and plaintiff brings error.</p>

Suit by Kicka Behrens and others against William N. Bau-mann, administrator with the will annexed, of Frederick Hanke, deceased, and others. Decree for plaintiffs, and defendants appeal.

<p>1. Appeal akd Eekob — Determination and, Disposition of Cause— Remanded.</p> <p>A decree, denying relief on a cross-bill, or answer in the nature thereof, the averments of which are sufficient, but are not sustained by evidence taken in proper form, but the existence of which is disclosed by affidavits, which the trial court •erroneously permitted to be filed as evidence, on the hearing, over objections, will be reversed and the cause remanded, to allow such evidence to be taken and filed in regular and proper form, if the appellate court can see the party would be entitled to the relief asked for in such answer when the evidence shall have been so taken, (p. 69.)</p> <p>2. Equity — Pleading■—Special Replication.</p> <p>Pacts set up in an answer, praying affirmative relief, .which are merely defensive to' an allegation of the bill, do not constitute new matter, within the meaning of the statute, requiring a special replication to an answer, and are sufficiently denied by a general replication, (p. 71.)</p> <p>3. Statutes — Conditions Precedent.</p> <p>If a statute provide that, an act. done shall not become effective, unless and until certain other acts shall have been done, the additional things required are conditions precedent and must be performed before the principal act can have any force or effect, (p. 66.)</p> <p>4. Municipal Corporations — Ordinances—Publication and Record • — necessity.</p> <p>A provision of a city charter, saying an ordinance, after passage, shall not go into effect, unless and until it shall have been published in a newspaper and, together with an affidavit to the fact of publication, recorded in a certain book, must be complied with before the ordinance can have any virtue or efficacy, (p. 66.)</p> <p>5. Records — Construction of Statute.</p> <p>A statute requiring certain papers to be spread upon a named book is to be read as if it had said such papers should be recorded in such book. (p. 67.)</p> <p>6. Same — Recording Written Instruments — Sufficiency.</p> <p>As to what acts are sufficient to effect a recordation, the statute, requiring it, is to be interpreted in the light of its subject matter, and, in respect to the form of the record and the instrumentalities by which it is effected, more latitude is allowed when the legislative design is to provide a record to subserve temporary purposes, than when the record is intended to operate throughout a long period of time. (p. 68.)</p> <p>7. Municipal Corporations — Ordinances—Recording—Sufficiency.</p> <p>Under a city charter requiring ordinances, imposing assessments, fines and penalties, other than ordinary annual levies, and other papers relating thereto, to be recorded in a certain book, it suffices to paste printed copies thereof on the leaves of the book, it appearing that enforcement of the liens and collection of the penalties within comparatively short periods of time after the passage of such ordinances are contemplated. Magers v. Edwards. 13 W. Va. 822; Atkinson v. Sutton, 23 "W. Va. 197. (p. 68.)</p> <p>S. Same — Public Work — Bids—“Lowest.”</p> <p>A single bid for public work, made under due advertisement for such bids, pursuant to an ordinance requiring such method of letting contracts, authorizes a city council to contract with the bidder. The term “lowest,” used in such connection, is to be taken in its logical and practical, rather than its grammatical sense, (p. 72.)</p> <p>9. Same — Street Improvements — Gost of Paving Street Intersections.</p> <p>Under a city charter, imposing special assessments for street improvements and providing that two-thirds of the total cost of grading and paving any street or portion thereof shall he severally charged to the owners of land abutting thereon in such proportion as the frontage in feet of each owner’s land, so abutting, bears to the total frontage of all land so abutting, authorizes inclusion and apportionment, ■ in the estimate, of the cost of paving street intersections or crossings, (p. 73.)</p> <p>10. Same — Street Improvement — Abatement from Liability.</p> <p>If, under a city charter, silent as to charges against street railway companies for the cost of paving between the rails of the track and along the sides thereof, the council, by ordinance, impose such a charge, an abutting property owner is not’ entitled to the benefit of any portion thereof by abatement from the amount with which he is chargeable by the terms of the charter, (p. 75.)</p> <p>11. Same — Special Assessments — Penalties—Lien.</p> <p>A provision in a city charter saying special assessments, with penalties, therein imposed, added, shall be treated and considered, and payment thereof enforced in all respects as provided in the charter for the collection of taxes due the city, and that there “shall be a lien therefor, the same as for such other taxes, which lien may be enforced the same as provided for other taxes,” gives a lien for the penalties as well as for the assessments, enforcible by any means provided for the enforcement of the latter, (p. 76.)</p> <p>12. Same — Special Assessments■ — Adjacent Lots of Same Owner.</p> <p>A charter provision, authorizing special assessments against property, without requiring the assessments to be made against separate lots, leaves it in the discretion of the council as to whether adjacent lots, fronting on the same street, and owned by the same person, shall be charged separately, each according to its own frontage, or all, according to their total frontage, as a single tract, and an assessment against all is valid, (p. 76.)</p> <p>13. Taxation — Sale for Taxes — Irregularities.</p> <p>Sale of property, as delinquent for non-payment of a valid tax, cannot be enjoined for mere irregularities in the return of delinquency or notice of sale. (p.. 76.)</p> <p>14. Municipal CoepobatioNS — Special Assessments — Suit to Enjoin Sale — Affirmative Relief to City.</p> <p>In a suit brought to enjoin the sale of property as delinquent for non-payment of city taxesj on the ground of invalidity of the tax, the city, if authorized by its charter to enforce its lien for the taxes by suit in equity, and the tax is valid, may have a decree for the enforcement of the lien, as upon a cross-bill, by praying such relief in its answer, (p. 77.)</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Bill by James A. White and others against A. B. White, Hattie Glover, and Addie Riffe. Decree for plaintiffs, and Hattie Glover and Addie Riffe appeal.</p>

<p>Error to Circuit Court, Preston County.</p> <p>Henry A. Cool was convicted of unlawfully selling spirituous liquors without a state license therefor and brings error.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by William G. Plant against Enocli Humphries and others. D'eeree for defendants, and complainant appeals.</p>

<p>Error to Circuit Court., Mercer County.</p> <p>Action by Sarah Kaufman against T. Frank Mastin. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court;, Cabell County.</p> <p>Action by J. W. Rucker against the City of Huntington. Judgment for defendant, and plaintiff brings error.</p>

Action by the State against Masco Garnett, Sr., the Cherry Eiver Boom & Lumber Company, A. H. Minor, and others. From the decree, both the lumber company and the state and others appeal.

<p>1. Criminal Law — Transcript—Correction of Error or Omissions— Certiorari.</p> <p>Where necessary to correct errors, defects, or omissions in the original transcript or return filed in an appellate court, an additional or supplemental transcript or return may be obtained on proper application, and, wlien filed in the appellate court, will he considered as part of the original transcript or return, and a writ of certiorari is proper for that purpose, (p. 117).</p> <p>2. Homicide — Instructions—Self Defense■ — Applicability.</p> <p>On a trial for murder, instructions to the jury asserting defendant’s right to stand his ground and not retreat, based on the theory of a deadly attack by deceased on; and on defendant in his dwelling, or castle, are inapplicable where the evidence shows defendant and deceased were at the time of the homicide jointly occupying the house where the killing occurred; the ordinary rules as to self defense, propounded in other instructions given at the request of defendant, alone being applicable. — Miixek, President, dissenting, (pp. 118-129).</p> <p>3. Same — Instructions.</p> <p>On the trial of one indicted for murder, the evidence may be such as to justify an instruction on the theory of manslaughter, and also on the theory of self defense. These defenses are not necessarily inconsistent, (p. 124).</p> <p>4. Same — Manslaughter—Provocation.</p> <p>Words alone, however insulting or contemptuous, are never sufficient to reduce murder to manslaughter, at least where a deadly weapon is used; hut, when accompanied by the acts of the deceased showing a purpose to commit personal violence on the accused, as by raising and pointing at him a gun, as if in the act of shooting, the accused is entitled to an instruction based on theory of manslaughter, (p. 125).</p> <p>5. Same — Instructions—“Beat of Passion.”</p> <p>An instruction on the theory that the killing, though intentional, was done in the heat ,of blood, or violent passion, and on ■adequate and sufficient provocation, reducing the offense from murder to manslaughter, is not bad because it omits the words “without malice,” for “heat of passion” necessarily includes “without previous malice.” (p. 127).</p> <p>6. Same — Instructions.</p> <p>A proposed instruction to the jury, telling them that where one kills another, though intentionally, but in passion, in the heat of blood, upon sudden provocation, by gross indignity, or by threat of personal violence, was rightly rejected. By the use of the disjunctive “or,” the instruction would have justified the murder if only the deceased threatened the defendant with personal violence, (p. 128).</p> <p>Míixeb, Peesident, dissenting in part.</p>

<p>Appeal from Circuit- Court, Mason County.</p> <p>Bill by Jennie M. Newton against Thomas H. Kemper and others. Decree for defendants, and complainant appeals.</p>

Condemnation proceedings by the Deepwater Railway Company. W. B. Honaker, committee for Huldab Alvis, intervened by petition setting up right and title to the condemnation money paid intoi court, and T. C. Gooch and others, trustees of the Methodist Episcopal Church South, filed their answer thereto controverting the claim of the petitioner. Judgment for Hona-ker, committee, and the trustees bring error.

<p>1. Mortgages — Occupation of Premises by Mortgagee — Rent.</p> <p>A general rule applicable as between, mortgagor' and mortgagee! is, that if the mortgagee himself occupies the premises, especially if they consist of a farm under cultivation, upon which labor and money must be bestowed to produce annual crops, he will he charged with such sums as will be a fair rent for the premises, without regard to what he may realise as profits from the use of them. (p. 152).</p> <p>2. Landlord and Tenant — Rental Value of Land — Measure of.</p> <p>The true annual rental value of land is not the value of all the farm products which can possibly be realized from its use, when the land is stocked, farmed and managed with the greatest skill and industry, hut it is the price which a prudent and industrious farmer can afford to pay for its use, after taking into consideration the probable amount and the market value of his crops, and the probable injuries thereto resulting from the ordinary changes of climate and seasons, (p. 153).</p> <p>3. Evidence — Rental Value of Land — Opinion Evidence — Weight.</p> <p>In arriving at the true annual value of land opinion evidence evincing exaggerated; and speculative notions thereof should not he allowed to evercome the evidence of actual renting of the same land and of land of like character in the same vicinity, especially when corroborated by evidence showing the amount, character, condition and location of the land. (p. 153).</p> <p>4. Mortgages — Protection of Property by Mortgagee — Reimbursement.</p> <p>A mortagee in possession has the right to protect the property, and to he reimbursed his expenses in so doing, (p. 157).</p> <p>5. Same — Redemption—Allowance for Repairs and Improvements.</p> <p>Where reasonable repairs and permanent improvements have been, made in good faith, hy one standing upon the legal footing of a mortagee in possession, but who supposes himself to have acquired the absolute title, the value of them will be allowed upon the subsequent redemption of the land. (p. 161).</p> <p>6. Interest — Partial Payments.</p> <p>Where payments are made from time to time on a debt bearing interest, the interest should be computed on the debt up to the time of payment, and the payment deducted from the aggregate of principal and interest and the balance form a new-capital, but which must not be more than the former.- If the payment be less than the interest due at the time the surplus of interest must not go to augument the capital; and it is error for a commissioner in stating an account to allow interest on payments to- a future day when the debt is paid or settlement made, and then deduct the payment and interest from the -debt, principal and interest, (p. 163).</p> <p>7. Same — \Judgments.</p> <p>Where a .decree is rendered for payment of money it should, as required by section 3988, Code 1906, be for the aggregate of principal and interest due at the date of the decree, with interest from that date; and it is error to give interest upon the aggregate of principal and interest anterior to the date of the decree, (p. 163).</p>

<p>Error to Circuit Court, Summers County.</p> <p>. Assumpsit by George P. Franklin against the T. H. Lilly Lumber Company and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by John D. Miller, committee, against Jacob A. Ster-ringer. Decree for plaintiff, and defendant appeals.</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by Arthur Grant against the Baltimore & Ohio Eail-road Company. Judgment for plaintiff, and defendant .brings error</p>

<p>1. Bills and Notes — Actions—Fraud as Defense.</p> <p>Fraud'in the procurement of an accommodation endorsement of a negotiable promissory note, alleged to have been perpetrated by the holder thereof, may be proved as matter of 'defense in an action at law, instituted by him oh the note. (p. 186).</p> <p>2. Feaud — Jurisdiction.</p> <p>In respect to redress of an injury, predicated on such a fraud, courts of law and courts of equity have concurrent jurisdiction, (p. 187).</p> <p>3. Courts — Concurrent and Legal Jurisdiction — Transfer from, one Court to Another.</p> <p>In cases of concurrent jurisdiction, the maxim, Qui prior est tempore, potior est jure, applies, and that court whose jurisdiction first attaches will retain cognizance of the cause, unless it he the law court and ground for removal into a court of equity is set up and sustained, (p. 187).</p> <p>4. Trial — Transfer from Law to Equity.</p> <p>Though necessity for discovery constitutes good ground for removing a cause from a legal to an equity forum, the hill must show the evidence required cannot he obtained, under the common law rules, otherwise than hy discovery in.equity, and is indispensible to the protection or relief of the plaintiff, (p. 187).</p> <p>5. Discovery — (Grounds of Remedy — Indispensable Evidence.</p> <p>Matter, constituting only ground for inference of motive for malting alleged false representations, relied upon for relief, though relevant and material, is not deemed indispensable evidence, within the rule, prescribing the requisites of a bill for discovery and relief, because remote and indirect in its hearing upon the cause of action or matter of defense, (p. 187).</p> <p>6. Equiiy — Jurisdiction—Adequacy of Legal Remedy.</p> <p>Allegations of a bill, seeking relief in equity, which really amount to nothing more than pretexts for the exercise of jurisdiction, are disregarded, (p. 190).</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Carrie Slmttleswortb Smith against Taylor Ward and others. From the decree, complainant and defendant Ilarmer appeal.</p>

<p>1. Chimin An Daw — New Trial — Newly D,iscovei'ed Evidence — ■ Cumulative.</p> <p>Newly discovered evidence as a ground for new trial, must not be merely corroborative, but material and such as will call for a different verdict, (p. 199).</p> <p>2. Same' — New Trial — Newly Discovered Evidence — Affidavits.</p> <p>Upon a motion for a new trial on new oral evidence the affidavit must state the evidence, and by what person it can be proven, and the affidavit of such person that he will give such evidence, stating it, must be produced, or good excuse given for its absence, (p. 201).</p> <p>3. Same — New Trial — Newly Discovered Evidence — Diligence.</p> <p>Upon a motion for a new trial for new evidence, it is not enough for a prisoner to say that he did not know before the trial that he could prove such matters; but he must show the exercise oí diligence in some proper way fitting the case to ascertain such matters, (p. 201).</p> <p>4. Same — Review—Questions of Fad.</p> <p>The general rule is that a new trial will not be granted a prisoner where the verdict against him involves conflicting oral testimony and credit of witnesses, (p. 203).</p>

<p>Error to Circuit Court, Brooke County.</p> <p>Action by W. C. Munn against the Wellsburg Banking & Trust Company. Judgment for defendant, and plaintiff brings error.</p>

Bill by S. B. Harvey and others against Elam B. Nutter and James Irwin and others. Decree for complainants, and James Irwin and 'another appeal.

<p>Error to Circuit Court, Mercer County.</p> <p>John Medley was convicted of murder in the first degree, and he brings error.</p>

Bill by Fenner F. Hart against George A. Larkin, trustee, and others, to enjoin a sale under a deed of trust. Decree for defendants and complainant appeals.

<p>1. Evidence — Judicial Notice — Proceedings in Another Suit.</p> <p>In one suit judicial notice will not be> taken of the proceedings in a separate and distinct suit, whether in the same or another court, (p. 236).</p> <p>2. Taxation — Sale for One Tear’s Delinquent Taxes — Effect.</p> <p>A sale for one year’s delinquent taxes is as effectual as a sale for all the years for which tlie land may at the time be delinquent. (p. 237).</p> <p>3. Evidence — Return of Taw Sales — Certified Copy.</p> <p>A certified copy of the sheriff’s original return of sales made for delinquent taxes, on file in the auditor’s office, is proper evidence as to the quantity of land sold in a particular instance. (p. 237).</p> <p>4. Taxation — Sales—Irregularities—Cure ly Statute.</p> <p>The failure of the sheriff to make a return of sales for delinquent taxes within the time prescribed by law, and the failure of the county clerk to record the same within the time prescribed, are expressly cured by statute, (p. 237).</p> <p>5. Same — Sales—Sale of Land — Oil and, Cas.</p> <p>Where gas and oil are severed in title from land and separate assessment is not made as to the same, a sale of the land for delinquent taxes under an assessment without reservation carries with it the gas and oil. (p. 237).</p>

Bill by Lona Dell Taylor and others against Ámnon Taylor, administrator, and others. Decree for plaintiffs, and defendant Central Banking & Trust Company appeals.

<p>Appeal from Circuit Court, Kaleigh County.</p> <p>Specific performance by G. S. Beckwith against James Laiñg and another. Decree for complainant, and defendants appeal.</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Action by James B. Duffy and others against Eliza Currenee and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Master and Servant — Injury to Servant — Defective Machinery.</p> <p>A master is liable for injury to a servant from defective macliinery, not for danger only, but only for negligence. The fact of sucb injury will not alone impose liability on the master, (p. 269). . .</p> <p>2. Same — Injury to Servant- — Appliances.</p> <p>A master is not bound to furnish, the very best and safest machinery and appliances for his servant. So they be such as-are reasonably safe, and may be safely used with due care on the part of the servant, the master is not liable for injury to the servant therefrom. The master is not liable for mere error of judgment, (p. 269).</p> <p>3.. Same — Injury to Servant — Defective Machinery.</p> <p>A master using machinery that is defective is. not liable for injury to his servant from it, unless the master know, or under the circumstances, should know such defectiveness. (P. 271).</p> <p>4. Appeal and Error — Trial—Review—Decision.</p> <p>• When, in an action for tort, the evidence is such that a verdict for plaintiff should be set aside, the court, if asked, should . direct a verdict for defendant, and if it refuses, the appellate court will set aside judgment and verdict, but will not render final judgment for defendant; but will remand for a new trial, unless it very clearly appears that the plaintiff cannot better his case on a new trial, (p. 272).</p>

<p>1. Eastsmekts — Private Right-Of-Way — Definiteness.</p> <p>An easement oí private way over land must-have a particular definite line. (p. 274).</p> <p>2. Same — Private Way — Adverse Possession.</p> <p>To establish an easement of private way over land by prescription the use must he continuous and uninterrupted for the necessary period, under a bona fide claim of right, adverse to the owner of the land, and wilh his Knowledge and silence. If the use is by his permission, or if he opposes and denies the right, title to the easement does not come hy such use. (p. 275).</p>

<p>1. Master and Servant — Injuries to Servant — “Felloto Servants.”</p> <p>A mine boss and fire boss employed in a coal mine, pursuant to sections 409 and 410, Code 1906, in the performance of the duties thereby imposed upon them, including the duty of the mine boss to see that as the working places advance breakthroughs for air are made, or that brattice shall be used, are fellow servants of the miner employed therein, and the master is not liable for injuries sustained by such miner on account of the negligent performance of those 'duties, (p. 280).</p>

<p>Error to Circuit Court, Wirt County.</p> <p>Action by V. E. Sayre against R. H. Woodyard, administrator of E. R. Woodyard, deceased. Judgment for defendant, and plaintiff brings error.</p>

Suit by William Walbrecht, as receiver, etc., against Sarah Holbrook.' Judgment for plaintiff, and defendant appeals. Motion to dismiss appeal denied, and judgment reversed.

<p>Error to Circuit Court, Taylor County.</p> <p>Action by Fred A. Prichard against the McGraw Oil & Gas Company and others. Judgment for plaintiff, and defendant Jolm T. McGraw brings error.</p>

Bill by Grover Jones and another against E H. Crim and •another, Executors of J. N. B. Crim, deceased, and others. Decree for complainants, and defendants appeal.

<p>1. Divoece — Alimony—Jurisdiction to Award.</p> <p>In no suit but one seeking a divorce of some character is there jurisdiction to award alimony pendente lite. (p.‘309).</p> <p>2. Same — Alimony.</p> <p>Alimony is only cognizable as between parties united by a marital relation that imposes upon the husband the legal duty to support the wife. (p. 310).</p> <p>3. Same — Duly to Maintain Wife.</p> <p>A decree of divorce from tied and board without alimony dissolves the relation of husband and wife so far as the duty of the former to maintain the latter is concerned, (p. 310).</p> <p>4. Husband and Wine — Maintenance of Wife.</p> <p>Where there is admittedly no relation that legally imposes the duty of the wife’s maintenance on the husband, the law gives no power to make him maintain her. ■ (p. 311).</p> <p>5. Divobce — Alimony—Suit to Set Aside Decree.</p> <p>There is no jurisdiction to award alimony as between parties divorced from bed and board, as incident to the pendency of an independent suit to set aside the decree of divorce for fraud, and before the decree is successfully assailed, (p. 312).</p>

<p>Error to Circuit Court, Baleigh County.</p> <p>Action by H. D. Wiggin against George W. Dillon. From an order setting aside the verdict and granting a new trial, plaintiff brings error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by George Teel against the Coal.& Coke Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by the Salem Terminal Traction Company against John T. McGraw. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Moses Hairston against the United States Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Exceptions .to Commissioner’s Report — ■ Sufficiency.</p> <p>Exceptions to a commissioner’s report, which are too general and do not point out the specific items excepted to, or refer the court to the evidence relied on in support thereof, will not he considered on appeal to this Court, (p. 329).</p> <p>2. Mines and Minerals — Partnership—Management hy Majority.</p> <p>The, members of a mining partnership not agreeing, those having the majority interest have the right to control the management in all things necessary and proper for its operations, and are liable in an accounting only for culpable negligence, or breach-of duty, or wrongful conduct, or diversion of the property from the business of the firm. (p. 329).</p> <p>3. Appeal and Error — Review—Non-action hy Court — Decisions Reviewahle — Refusal to Appoint Receiver.</p> <p>Though, in a suit to dissolve, settle and wind up the business of a mining partnership, a special receiver be prayed for, and a proper case be presented therefor, yet if neither party has moved the court to appoint a receiver, and there has been no decree appointing or refusing to appoint, no error is presented reviewable here on appeal; and no appeal lies to this Court from an order or decree refusing to appoint a receiver, (p. 330).</p> <p>4. Mines and Minerals — Miming Partnership — Dissolution—'Settlement Between Partners.</p> <p>Where, in a suit for that purpose, a dissolution, accounting and winding up of a mining partnership has been decreed, it is error on a partial settlement for the court to give a personal decree against one partner in favor of another for a balance found due him on such partial settlement. The social property should he first reduced to money and applied to discharge partnership liabilities, including any balance found due on final settlement from one partner to another, and then a decree over on final settlement for any balance that may remain, (p, 331).</p> <p>5. Same — Mining Partnership — Advancements by One Partner to Another.</p> <p>Where one member of a mining partnership has advanced money or property to pay the share of another in the operating expenses, he is entitled to interest thereon, as against the delinquent pai*tner, on dissolution and final settlement and winding up of the partnership, (p. 334).</p>

<p>1. Assumpsit — Action of — Pleading—Declaration.</p> <p>A declaration in assumpsit on a promise in writing to pay-money, which distinctly alleges fulfillment of tlie only condition on which such payment was made to depend, is good on demurrer. (p. 339).</p> <p>2. Appeal and Error. — Rulings on Special Plea — Review.</p> <p>Though an exception of defendant to a ruling on a special plea tendered he not contained in any order entered in the court below, yet if it be shown in the certificate of evidence, or in any other part of the record, the defendant may avail himself here of any error in rejecting such plea. (p. 339).</p> <p>3. Pleading — Plea of Non Est Factum — -Verification.</p> <p>A special plea, alleging want of complete delivery of the bond sued on, and that the condition of the delivery thereof had never been complied with, and concluding with an “et sic non est factum,” is substantially a plea of non est factum, and if not verified, as required by section 3859, Code 1906, is properly rejected, (p.343). »</p> <p>4. Same — Failure of Consideration — Verification.</p> <p>A plea which is substantially a plea of failure of consideration, or fraud in the procurement of the contract sued on, by section 3891, Code 1906, requires verification, without which it is properly rejected, (p. 342).</p> <p>5. Same — Special Plea — Replication.</p> <p>A general replication to such a special plea is all that is required to put in issue all the material matters of defense therein pleaded, and a special reply is not required, (p. 344).</p> <p>6. Pbopeety — Evidence of Ownership.</p> <p>In a suit involving the question of financial responsibility of some of the defendants, at the time they signed the contract sued on, the property books of the county are proper evidence, not of perfect title to the property, but as tending to show claim of right and title by such defendants to the property charged to them for taxation, and as pertinent to the issue, (p. 346).</p> <p>7. Appeal and Error — Harmless Error — Exclusion of Evidence.</p> <p>Error in sustaining objections to questions propounded a witness will not be available here, unless the record affimatively shows that the complaining party has been prejudiced thereby.</p> <p>8. Subscriptions — Construction—Mutuality.</p> <p>A contract under seal to pay to another, as committee, a certain sum of money, the proceeds whereof were to he expended so far as might he necessary in making a location survey for a railroad, and in paying other necessary expenses attending the same, is not void for want of mutality. (p. 348).</p> <p>9. Same — Binding Effect.</p> <p>Though such contract he treated as a mere subscription to the object specified, if the subscription he acceded to, on the terms on which it is- made, and labor or money he expended on the faith thereof, the party making the subscription is hound thereby, (p. 348).</p> <p>10. Appeal and Error — Bill of Exceptions — Certification by Judge —Impeachment.</p> <p>Indorsements made by the clerk on the back of a bill of exceptions or certificate of evidence will not be sufficient to impeach the verity of the certificate of the judge to such bill of exceptions, or the vacation order of the judge certifying such bill of exception to the clerk, (p. 348).</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by John Sullivan against it. L. Saunders and others. Decree for plaintiff, and defendants L. W. Simpson and C. 0. Rhodes appeal.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by Frank Nixon against Roy Kiddy. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>William T. Emblen was convicted of letting a bouse to be .used as a bawdyhouse, and be brings error.</p>

<p>1. Assignments — Enforcement of Partial Payment of Deht — Jurisdiction.</p> <p>For the enforcement of payment of a part of a debt, assigned by the creditors without the assent or acceptance of the debtor, there is no jurisdiction in a court of law, hut such partial recovery may he had in a court of equity, (p. 366).</p> <p>2. Election oe Remedies — Legal or Equitable Suit — Election.</p> <p>A plaintiff in a suit in equity, for whose benefit an action at law is pending for the recovery of the demand set up in his bill, cannot be compelled to elect as to which suit he will prosecute, if there appears to be jurisdiction of such demand in the equity court and none in the law court, (p. 372).</p> <p>3. Same — Nature and Grounds.</p> <p>Before an election of remedy can be ordered, it must appear that the party hhs more than one remedy, (p. 372).</p> <p>4. Assignments- — Construction.</p> <p>A paper, assigning a demand, in general terms, to a named person and others therein named, and declaring the purpose of the assignment to be payment of a certain debt, described, to each of the persons named, and the residue, if any, to he intended for the assignor, is construed and held to be an assignment of certain parts of the deht to each of the persons named, (p. 367).</p> <p>5. Reference — Premature Reference — Effect.</p> <p>An appellate court will not reverse a decree, properly made on a commissioner’s report for the sole reason that the cause, in the condition in which it was, when the order of reference was made, ought not to have been referred to him. (p. 368).</p> <p>6. Pleading — Construction.</p> <p>Words in a pleading are to be tafeen in the sense in which the context shows they were used. (p. 370).</p> <p>7. Evidence — Deputy Sheriff — Collection of Taxes — -Presumption.</p> <p>After the lapse of a reasonable time, from the date on which a deputy sheriff should have collected, and accounted to his principal ’ for, taxes charged to him for collection, he will be presumed, in the absence of evidence to the contrary, to have collected them. (p. 370).</p> <p>8. Taxation — Collection—Action on Collector's Bond — Variance.</p> <p>In an action on a bond of a deputy sheriff for the recovery of money due from him on account of taxes collected by him or which he should have collected, a variance of proof from the pleadings is not established by the fact that the bill claims a balance due on account of the last two years of the four year period, while the proof shows that collections of said years were applied on the accounts of the preceding years so as to produce such balance, (p. 371).</p> <p>9. Payment — Talcing New Simple Contract. for .Specialty.</p> <p>The taking of a new simple contract obligation for a specialty debt does not pay the original "debt, nor suspend the right of action on the original contract, (p. 371).</p> <p>10. Equity — Decree for Co-defendant — Prayer for Relief.</p> <p>Upon a bill in equity, stating a cause of action, constituting a common basis for claims due the plaintiff and certain defendants against other defendants, and praying relief to the plaintiff and the defendants, having demands. based on such common ground, which is taken for confessed as to a defendant of the class, last named, a decree may properly be rendered in his favor, although the record shows no express prayer by him for relief, (p. 372).</p> <p>11. Same — Parties—Penitente Lite.</p> <p>It is not error to pronounce a decree in favor of a pendiente lite purchaser who has not been made a party to the suit, (p. 374).</p>

<p>Error to Circuit Court, Ealeigh County.</p> <p>Eobert Gravely was convicted of murder in the second degree, and brings error.</p>

<p>1. Foecible Entry and Detainer — Appeal—Amendment of Summons.</p> <p>The rules respecting description of the property required in unlawful detainer, and amendments of the summons or complaint therein, announced in Simpkins v. White, 43 W. Va. 125; Thorn v. Thorn, 47 W. Va. 4; Brinkard v. Ueptinstall, 55 W. Va. 320; and Billingsiee v.1 Stutter, 52 W. Va. 92', approved and applied, (p. 386).</p> <p>2. Landlord and Tenant — Unlawful Detainer — Tenancy hy the Month — Conditions Precedent.</p> <p>In unlawful detainer, where a tenancy is hy the month, a definite period, as distinguished from a tenancy for an indefinite period, as from month to month, no notice to quit is necessary; hut a demand for possession and refusal to renew such monthly tenancy, and if the ground of the action he for breach of contract to pay rent, .demand for the rent at the time and place stipulated, are conditions precedent to such right of action. (p. 387).</p> <p>3. Same — Unlawful Detainer — Default in Rent-Right to Damages.</p> <p>In an action of unlawful detainer hy landlord against tenant, damages for breach, of contract to pay rent reserved are not recoverable, where it is shown that defendant, with the consent of, or by agreement with the plaintiff, attorned for the rent to a third person, (p. 388).</p>

<p>Appeal from Circuit 'Court, Taylor County.</p> <p>Bill by Rebecca Reynolds against John T. Whitescarver and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Municipal Corporations — Defective Streets — Liability.</p> <p>Section 53, chapter 43, Code, imposes an absolute liability on incorporated cities and towns for injuries sustained on account of its public streets and sidewalks being out of repair, or obstructed in such a manner as to make it dangerous to travel thereon in the ordinary modes, (p. 395).</p> <p>2. Same — Obstruction in Streets — Precautions.</p> <p>In case of necessity such city or town may permit a temporary obstruction of any of its public streets or sidewalks, but it is bound to take proper precaution to warn the public of the danger occasioned by the obstruction. __ (p. 396).</p> <p>3. Damages — Personal Injuries — Amount—Question for Jury.</p> <p>In an action for negligently causing a personal injury, the jury are to judge from the nature and extent of the injury, the pain and mental anguish, produced by it, what is a reasonable compensation, .(p. 397).</p> <p>4. . Tbial — Instructions—Necessity—Theory of Case.</p> <p>When an instruction, embodying' an hypothesis, dependent upon the finding of a certain fact by the jury, has been given for one party, it is error to refuse an instruction for the opposite party, stating the converse of the legal proposition embraced in the one given, there being evidence tending to sustain botli theories of the case. (p. 398).</p>

<p>1. Subscriptions — Enforcement—Consideration.</p> <p>Where one agrees, by way of subscription to the promotion of a glass factory, to convey real estate of a stated value to parties who, relying upon such agreement, keep and perform on their part the things undertaken to be done as a consideration for the subscription, the contract is binding and damages may be recovered for its breach in failing to convey, (p. 404).</p> <p>2. Same — Enforcement—Nature of Remedy.</p> <p>A contract of subscription to an enterprise providing on the part of the subscriber only for the conveyance of real estate of a stated value is not, in any event, a contract for the payment of money. Redress for failure of the subscriber to observe his contract is by suit for damages, not for a debt. (p. 405).</p> <p>3. Assumpsit, Action oí — -Declaration—Sufficiency.</p> <p>Counts in assumpsit which aver defendant’s undertaking and a legal consideration therefor, the breach of defendant in failing to keep that undertaking, and the injury to plaintiff therefrom, are generally sufficient, (p. 407).</p> <p>4. PfcEADiNG — Declaration.</p> <p>Counts of a declaration which omit in their averments nothing so essential to the action that judgment according to law and the very right of the cause cannot be given, are sufficient, (p. 408).</p> <p>5. Same — Surplusage.</p> <p>If a count alleges sufficient matter of fact to warrant a recovery, all material'allegations may be disregarded. Surplusage never vitiates a declaration, (p. 409).</p> <p>6. Assumpsit, Action op — Declaration—Promise—Sufficiency of Allegation.</p> <p>Generally, a count in assumpsit which shows that what is equivalent to a promise has taken place is good without the use of the word “promise.” (p. 409).</p> <p>7. Subscriptions — Action—Declaration—■Contents—Material Mat* ters.</p> <p>Where notice to a defendant of any fact is not necessary to fix the alleged liability on him, it .need not be averred in stating the case. (p. 410).</p>

<p>1. Intoxicating Liquohs — Illegal Bale — Sale to Minor.</p> <p>It is not an offense in a licensed saloon keeper to deliver to a minor intoxicating liquor under an order from the minor’s father to the saloonist under a prior agreement between the father and the saloonist that whenever the father should send the son with a written order, the saloonist should let the son have whatever liquor it called for, for the father’s use. (p. 412).</p>

<p>1. Appeal and Eeros — Party Aggrieved — Grant of New Trial.</p> <p>In an action under chapter 103, section 5, Code, to recover damages for the death of a person from wrongful act or neglect, and a verdict for the plaintiff is, on his motion, against the objection of the defendant, erroneously set aside because of smallness of the amount of the verdict, the defendant may have a writ of error, (p. 416).</p>

<p>1. Negligence — Pleading and Proof — Variance.</p> <p>Where a declaration for personal injury from negligence details the facts or circumstances of negligence, so the main or essential facts pleaded as constituting the negligence be proven, the failure to prove details or incidental facts in the transaction, not vital to the action, does not constitute variance or defeat recovery, (p. 419).</p> <p>2. Evidence — Admissibility—Res Gestae.</p> <p>The statement made by an engineer of a locomotive, “I told him to get off tlie engine, and he dropped down in front of the engine”, made three or four minutes after injury to a hoy jumping from a train, and run over by it, is admissible under the rule of res gestae in an action by a boy against a railroad company to recover for'the injury, (p. 421).</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Action by B. T. George, administrator of Allen Y. Wilmoth, against J. N. B. Crim and others. From the decree, defendants E. FI. Grim and Melville Peck appeal.</p>

<p>Error to 'Circuit Court, Mineral County.</p> <p>John Miller was convicted oí an illegal sale of liquor, and brings error.</p>

<p>1. Fraudulent Conveyances — Payment of Debt.</p> <p>In a suit by a creditor, under section 1, chapter 74, of the Code, to set aside a deed of trust, or an absolute conveyance, as having been made by his debtor to delay, hinder and defraud him in the collection of his debt, all fraud and fraudulent intent being denied, and the proof showing the conveyance to have been made for full and adequate consideration, to secure and pay a bona fide debt to another creditor, mere badges of fraud, as that the consideration recited was cash, and that it was slightly in excess of the amount of the debt secured or paid, and that such excess was paid the grantor, and the like, will not be sufficient to impeach such conveyance as fraudulent in fact. (p. 442).</p> <p>2. Judgment — Conformity to Issues.</p> <p>A bill by a creditor, under section 1, chapter 74, of the Code, to impeach for actual fraud the deed of his insolvent debtor, but failing in that object, will not be treated as a bill under section 2, of said chapter, to avoid such deed as a preference, and to have it declared a general assignment for the benefit of all creditors as provided thereby; (p. 444).</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Suit by ibe Eitchie Lumber 'Company against T. E. Nutter. Decree for defendant, and plaintiff appeals.</p>

<p>1. Appeal and Error — Law of the Case — Second Appeal.</p> <p>The decree of the Supreme Court of Appeals upon a question decided hy the lower court and presented for review on appeal, lis final and irreversible; and upon a second appeal in the cause the questions decided in the former appeal can not be reviewed, (p. 457).</p> <p>2. Same — Remand—Effect of Mandate and Opinion.</p> <p>When a cause is remanded by the Supreme Court of Appeals to the lower court for further proceedings to be had therein according to the opinion of the appellate court, and a doubt arises as to the meaning and effect of the mandate and opinion, it may be ascertained by reference to the bill and other proceedings in the cause, (p. 457).</p> <p>(Miller, President, absent.)</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Action by the Union Stopper Company against Joseph M. Wood. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Negligence — iPleading—Declaration.</p> <p>In actions for negligence, a declaration, charging the defendant with a specific act, injurious • to the plaintiff, and averring generally negligence in the performance of the act, is sufficient. It need not set out in detail all the specific acts, constituting the negligence complained of. (p. 464). '</p> <p>2. Pleading — Conclusions of Law — Negligence.</p> <p>In such connection, the general averment of negligence is one of fací, and not a conclusion of law. (p. 464).</p> <p>3. Railboads — Injuries to Licensee — Duty of Railroads.</p> <p>A mere licensee of a railway company, not in its employ, using the track for his own purposes, as for a foot or walk way, assumes in the exercise of his privilege, all the risks incident to such use of the track, and the railway company owes him no greater duty of protection than if he were a trespasser, (p. 467).</p> <p>4. Same — Injury to Drunken Trespasser — Instructions.</p> <p>In the trial of an action against a railway company for the negligent killing of an intoxicated person on its track, it is error to instruct the jury that the company is liable for injuries to such person “when, after the negligence in going upon the track, ihe engineer of the train, by the exercise of ordinary care, could have avoided the injuries to him,” in this, that it ignores the important element of knowledge, on the part of the engineer or any servant of the company in charge of the train, of the drunkenness of the trespasser, (p. 468).</p>

<p>1. Fbatjdulent Conveyances — Transfer to "Volunteer — Bights.</p> <p>A volunteer, claiming under a party ‘ to an actually fraudulent conveyance, is not protected, (p. 473).</p> <p>2. Same — Purchase "by Husband — Conveyance to Wife.</p> <p>If a husband purchase land, with intent to defraud creditors of the vendor, and cause it to be conveyed to his wife, she paying nothing for it, the creditors of the grantor may set aside the deed and charge the land to the extent of their debts, (p. 473).</p> <p>3. Same — Purchase by Husband — Conveyance to Wife — Husbands Creditors.</p> <p>In such case, the conveyance could he successfully assailed, as being conclusively fraudulent, by the creditors of the husband, existing at the time of the purchase, (p. 473). .</p> <p>4. Same — Badges of- Fraud — Evidence—Weight.</p> <p>In the law of fraudulent conveyances, mere badges of fraud, such as fraudulent acts in respect to property other than that involved in the suit and subsequent in time to the conveyance, assailed, relationship of the parties, their prior and subsequent association in business, incurrence of large subsequent indebtedness, are, in themselves, only circumstances, raising slight in-inferences of actual fraud, and insufficient to overthrow a deed when negatived by well established facts and circumstances clearly inconsistent therewith, (pp. 474-479).</p>

<p>Errar to Circuit Court, Cabell County.</p> <p>Action by Paris Kirk against tbe Camden Interstate Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by L. J. Fink against J. Walton Thomas. Judgment for plaintiff, and defendant brings error.</p>

<p>Application by C. E. McMillin for writ of mandamus against • Mansfield M. Neely, Mayor, and others.</p>

<p>Petition of A. C. Eiggs for writ of prohibition to Charles Carroll, recorder, and others.</p>

Action by the First National Bank of New Martinsville against the Lowther-Kaufman Oil & Coal Company and others. Judgment for plaintiff, and defendants F’. W. Clark and J. I. Norris bring error.

<p>Application by the West Virginia Central Gas Company for writ of prohibition against John Homer Holt, circuit judge, and others.</p>

<p>Appeal from Circuit Court, Kandolph County.</p> <p>Bill by Adonijah C. Lambert against Conrad Lambert and another. Decree for defendants, and plaintiff appeals.</p>

<p>Gaming — Playing Cards at a Public Place — Evidence.</p> <p>An indictment for playing cards at a public place or place of public resort, other than a hotel or tavern, is not sustained where the evidence shows that the public were in every way excluded from the place at the time the playing occurred, (p. 523).</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by William F. Callihan and others against Calvin Bus-sell and others. Decree for defendants and plaintiffs appeal.</p>

<p>1. Municipal Cobpobattons — Street Improvements — Abutting Property — Surface Water — Damages.</p> <p>Injury to real property, caused by a city, in the collection of surface water and casting tbe same upon the premises, by means of the grading and sewering of its streets, so as to subject the same to occasional and intermittent submergence, gives right to recovery of temporary, not permanent, damages, (p. 535).</p> <p>2. Same — New Trial — Injuries to Property — Temporary Damage— Difference in Value.</p> <p>In the trial of an action for such damages, evidence of the difference between the value of the property before it was subjected to the injury and its value thereafter, is inadmissible, and, if admitted without objection, a verdict, based upon it, will be set aside upon motion, (p. 535).</p> <p>3. Same — Injuries to Realty — Temporary Damages — Elements.</p> <p>A verdict in such an action, predicated partially upon evidence going beyond the true measure of damages and tending to prove the cost of altering the condition of the property so as to abate the cause of injury or render the property immune from its operation, in addition to the true elements of damages, the'cost of repairing the injury to the property, reimbursement for expenses, directly occasioned by the flooding of the property, and compensation for loss of use of the property and rentals, destruction of, and damages to, personal property, and the like, should be set aside on motion, although the evidence was admitted without objection, (p. 536).</p>

<p>1. Bills and Notes — Forged Cheek — Payment by Drawee — Bona Fide Holder Without Fault.</p> <p>If tlie drawee of a forged check or hill of exchange pay it to a bona fide holder, who is without fault, he cannot recover the money from the person to whom payment was made. (p. 548).</p> <p>2. Same — Forged Payer — •Validity—Determination by Drawee.</p> <p>In the absence of negligence or misconduct on the part of the holder of forged paper, contributing to the fraud by which the person on whom it purports to be a check or acceptance is induced to part with money on the faith of it, such person must determine at his peril whether the signature is genuine, (p. 549).</p> <p>3. Banks and Banking — Forged Check — Payment—negligence.</p> <p>The immunity so accorded the holder being an exception from the general rule of law, allowing, recovery of money paid under a mutual mistake of fact, 'does not extend to one who has omitted some precautionary act or duty, usual and customary among bankers, (p. 550).</p> <p>4. Same — Forged Check — Indorsement—Liability to Drawee.</p> <p>In taking a forged check from an unknown person, for collection, without inquiry as to his identity, and forwarding it for collection, after having taken the endorsement thereon of the reputed payee and placed its own unrestricted endorsement on the same, a bank omits a precautionary duty which the law merchant devolves upon it for the protection of the drawee, and makes a warranty of the genuineness of the signature of the payee, which it cannot afterwards deny; wherefore, it is liable to the drawee for the money paid on the check by the latter in ignorance of the forgery, unless the latter, by omitting some duty, resting upon it, is likewise in fault, (p. 551).</p> <p>5. Same — Forged Check — Payment hy Drawee — iRecovery of Money.</p> <p>If, in such case, both parties have been guilty of negligence, the drawee, in failing to have in its possession any means of Jesting the genuineness of the signature of the drawer, and the paying bank, in failing to have the payee identified, when he is unknown, the former cannot recover of the latter. (p.»553).</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Bill by James D. McSwegin, administrator, against Adolphus P. Howard and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Marshall Count.</p> <p>Assumpsit by Scott & Woodruff against G-. Charles Hughes. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by W. S. Shurtleff against F. M. Eight, as administrator, etc., and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Mines and Minerals — Oil and &as Lease — Construction.</p> <p>A deed granting and conveying to grantee one sixteenth, of the oil and gas in and under a tract of land, contains this further provision: “This grant is subject nevertheless to any rights now existing to the lessee, by virtue of the lease heretofore given on said land for oil and gas; but if said lease has expired or become void, or shall hereafter expire or become void, or if no such lease ever existed; said grantee shall have and is hereby granted, all the rights and privileges of drilling and operating on said land, to produce, store and remove the said oil and gas necessary and usually granted to the lessee in an oil and gas lease.” Construed, in connection with other provisions, to convey not only a one sixteenth of all the oil and gas, but, subject to the prior lease referred to, to be ,a lease of said land to grantee for oil and gas purposes, with exclusive rights, reserving the usual royalty, and with covenants and agreements usually contained in an ordinary lease for oil and gas purposes, (pp. 590, 591).</p> <p>2. Frauds, Statute or — Declarations—Admissions—Weight.</p> <p>Parol admissions or declarations are not sufficient to divest legal title and interest in land. (p. 592).</p> <p>3. Ejectment — Equitable Defenses.</p> <p>The only equitable defenses available in ejectment'in this State are those prescribed by sections 3355 and ■ 3356; Code 1906, in suits by vendor against vendee, or mortgagor against mortgagee, and upon notice served as prescribed by section 3357 of said Code. (p. 593).</p> <p>4. Judgment — Res -Judicata — Prior Decree — Parties—Issues Determined.</p> <p>Where a bill does not state a cause of action constituting a common basis upon which the rights of co-defendants depend, .and prays for no relief in their behalf; and there have been no pleadings between co-defendants putting their rights in issue, and no decree adjudicating the same, a decree adjudicating the rights of plaintiff only, though the bill may disclaim any rights against one of said co-denf end ants, will not estop or bar another co-defendant in a subsequent suit against the one in whose favor such disclaimer was made, involving rights not adjudicated by said decree, (p. 594).</p> <p>5. Mines and Minerals — Oil and Gas Lease-. — Surrender—Assignment — lEstoppel.</p> <p>Taking of a new lease for oil and gas by one of two' lessees in a prior deed or lease, granting to him without reservation or limitation the right and the exclusive right to enter and bore for oil and gas, is equivalent to a surrender and abandonment by him of all his rights ,and interest under the former lease; and his assignment of the new lease will invest in his assignee all his right as lessee under either of said leases, and estop and bar him of all right of action as co-lessee in the first lease against his assignee, or any subsequent assignee of such new lease, (p. 595).</p> <p>6. Same — Defenses—Abandonment of Lease — Surrender.</p> <p>In an action of ejectment, in which plaintiff, to- show right and title relies on an oil and gas lease, the surrender and abandonment thereof by him are available as defenses; and whether there has been such surrender or abandonment is a question of intention to be determined by the jury from all the acts and conduct of the parties in relation thereto, and winch may be shown in evidence to the jury under the plea of not guilty, (p. 595).</p> <p>7. Ejectment — Joint Plaintiffs — Right to Recover — Pleading—Verdict.</p> <p>The provision of section 3358, Code 1906, relating to ejectment, that if “the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs, or such of them as appear to have right to the possession of the premises, or any part there: of, etc.,1’ does not authorise such finding in favor of one or more of several joint plaintiffs, unless, as provided by section 3345, the declaration contains a separate count therefor, (p. 597).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by G-. S. Smith against the Atlas Pocahontas Coal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Exceptions, Bill oe — ¡Time for Signing and. Certification.</p> <p>Bills of exception, may be signed, certified and made a part of the record of a trial, at any time within thirty days after the adjournment of the term at which the judgment in the action was rendered, either in vacation or in a special or regular subsequent term of the court, occurring within said period of thirty days. (p. 610).</p> <p>2. Same — Time for Signing and Certification — '“In Vacation.”</p> <p>The office of the phrase “in vacation” in the clause of sec. 3979, Code of 1906, authorizing the taking of bills of exception after adjournment of the term at which judgment is rendered, is to empower the judge to sign, certify and make such bills parts of the record in vacation, not to limit or cut diown the extension of time, impliedly granted for that purpose, (p. 610).</p> <p>3. Master and Servant — Injuries to Third Persons — Special Police Officers.</p> <p>A special officer, appointed by the governor for police duty, at the instance of a railway company, under the authority conferred upon him by sec. 31 of ch. 145 of the Code, is prima facie a public officer, for whose act the company, .procuring his appointment and paying him for his services, directly or indirectly, is not liable, (p. 621).</p> <p>4. Same.</p> <p>Such a special officer has all the powers and privileges of a duly elected or appointed constable in the counties in which he files the oath taken by him, or copies thereof, and his public functions and powers are therefore more extensive than those of railway conductors, who are conservators of the peace only while in charge of their trains, (p. 622).</p> <p>5. Carriers — Injuries to Third Persons — Special Police Officers— Dual Position.</p> <p>A public officer, specially employed by a common carrier to perform certain duties and services for it, is a servant of such carrier, while acting within the scope of such employment; and, if such servant, in the performance of such duties, wrongfully inflict injury upon a passenger of such carrier, the master is liable therefor, although the injurious act, so done, was wilful and malicious and prompted by motives and purposes, personal to the servant, such as resentment of insults or punishment for other wrongs perpetrated Upon himself, (p. 622).</p> <p>6. Master and Servant — Injuries to Third Persons — Action—Question for Jury.</p> <p>When the capacity in which a person, occupying the dual position of public officer and servant of a carrier of passengers, acted in a transaction in which he inflicts wrong and injury upon third persons, is uncertain and dependent upon conflicting oral testimony and inconclusive facts and circumstances, the question is one for jury determination, (p. 616).</p> <p>7. Carriers — Injuries to Passenger — Act of Employe.</p> <p>If the injured party is a passenger of such carrier and the officer acted, in the transaction in which the injury was suffered, in the capacity of servant of the carrier, the question of liability is determined by the legal principles applicable in eases of injury to passengers by ordinary servants of carriers, (p. 615).</p> <p>8. 'Same- — Carriage of Passengers — Duty to Protect from Servants.</p> <p>A carrier of passengers is under an absolute contractual duty to protect them from wilful and unlawful injury at the hands of its servants, (p. 617).</p> <p>9. Same — Carriage of Passengers — Injuries—Use of Excessive Force.</p> <p>Provocation on the part of a passenger, such as interference with the servants in the exercise of their functions, abusive language, threats and assaults upon servants, although justifying expulsion from the train or other vehicle of carriage, does not bar recovery for injury inflicted upon him by the exercise of more force than is actually or apparently necessary to repel the assault or prevent other threatened injury, (pp. 619, 621).</p> <p>10. Same — Carriage of Passengers■ — Termination of Relation— Alighting from Train.</p> <p>A passenger does not cease to be such by reason of his alighting from a railway train at a station, other than his point of 'destination, for exercise or from motives of curiosity or to engage in an altercation with a servant of the company, if he does not leave the premises of the carrier, nor the train, with intention not to return to it and resume his journey, (pp. 621, 626).</p> <p>11. Appeal and Error — 'Harmless Error — Exclusion of Evidence-Facts othermse Established.</p> <p>In a case in which the person, inflicting injury upon a passenger, is both a public officer and a’ servant of the carrier, and his status as such officer has been established by one mode of appointment or election, it is not reversible error- to exclude evidence of appointment or election to the same office, or an office carrying the same power and authority, by another mode of conferring title, since no injury or prejudice could result from such error, (p. 621).</p> <p>12. CaeeieRs — Act of Servant — Injuries to Passenger — Actions—Instructions.</p> <p>If in the trial of such a case, the capacity in which such person acted is uncertain and dependent upon oral testimony and inconclusive facts and circumstances, the proper inquiry for the jury is the capacity in which he acted in the particular transaction to which the infliction of the injury was incident, not the places or positions he held or occupied in general at the time, and instructions, telling the jury to find for the defendant, if they believe the actor was, at the time of the injury, a public officei-, or performing the duties of such officer, and that the defendant is not responsible for his acts as such officer, are calculated to becloud the issue and mislead the jury, for which reason, the trial court may properly reject them. (pp. 621-626).</p> <p>13. Same — Injuries to Passenger — Actions—Instructions.</p> <p>The trial court may properly reject an instruction, in such a case, which tells the jury they should find for the defendant, if they believe the actor was the servant of the defendant and that the injurious act, incident to the particular transaction in which he was engaged, was not within the scope of his duty as such servant, (p. 622).</p> <p>14. Same.</p> <p>In such case, an instruction which tells the jury the defendant is not responsible for the infliction of death on a passenger, if they find from the evidence that the assault was committed by the actor when he was acting for himself and as his own master, is calculated to mislead the jury and the trial court may properly refuse it. (p. 626).</p> <p>15. Same.</p> <p>The trial court may properly refuse, in such case, instructions telling the jury that, if the passenger left the defendant’s train for the purpose of engaging in a quarrel or altercation with the servant or officer by whom he was hilled, the carrier is not liable, (p. 626).</p> <p>16. Trial — Request to Charge — Assumption of Pact.</p> <p>The trial court may properly reject -an instruction which assumes the existence of a thing which the evidence makes an open question for the jury. (p. 627).</p> <p>17. Witnesses — Cross Examination— Discretion of Court.</p> <p>The trial court has discretion, to refuse to permit the elicitation of evidence on the cross-examination of a witness, that ought to he introduced hy calling the witness to testify on behalf of the party seeking such evidence, (p. 629).</p> <p>18. Same — Appeal and Error — Leading Questions — Discretion of Court.</p> <p>The trial court has discretion to permit the asking of a leading question, when there is a basis for such action in evasiveness or reluctancy on the part of a witness, and a new trial will not be granted for allowing such question to be propounded, when it does not appear that the discretionary power has been abused to the injury of the party complaining, (p. 630).</p>

Certiorari by Hugh A. Barbee against H. B. Howard, Mayor, G-. W. M. Hooff, and C. F. Fiison, to review the action of a canvassing board. Judgment for plaintiff, and defendants Hooff and Fiison bring error.

<p>1. 'Mines aiid Minerals — Oil Leases — Action by Senior Lessee — Enjoining Removal of Oil — Jurisdiction of Equity.</p> <p>Equity has jurisdiction of a suit brought by the senior lessee in an oil lease against his lessor and a junior lessee of the same land from the same lessor, for the purpose of enjoining the removal of the oil from the leased premises and for specific execution of his lease; and, in such a suit, the court can settle the conflicting claims of the lessees, and grant such relief to either claimant as the pleadings and proof may warrant, (p. 635).</p> <p>2. Same — Oil and Gas Lease — Construction.</p> <p>An oil and gas- lease giving the lessee the right, for the period of ten years, to explore for oil and gas, and providing that if a well is not completed on the leased premises within three months from the date of the lease the lessee shall pay to the lessor, in advance, a quarterly cash rental for each additional three months the completion of a well is delayed, is an execu-tory contract and vests no title in the lessee to the oil and gas in place, (p. 635).</p> <p>3. Same.</p> <p>Such a contract contemplates development of the leased premises within a reasonable time, and the lessee may lose his rights thereunder before the expiration of the ten years by abandonment of the lease, notwithstanding there is no forfeiture clause in the contract, (pp. 637, 638).</p> <p>4. Same — Oil and Gas Lease — Abandonment by Lessee — Intention.</p> <p>If the lessee has not actually entered upon the land, the relinquishment of his right to do so, or his abandonment, becomes purely a question of his intention, and may be established by proof of such facts and circumstances as evince a voluntary waiver of his rights, (p. 639).</p> <p>5-. Same — Oil and Gas Lease — Abandonment by Lessee — Evidence.</p> <p>A case in which the evidence proves a voluntary abandonment of the lease by the lessee, (p. 640).</p>

<p>1. Appeal and Ekbou — Harmless Error — Refusal to Strike Irrelevant Allegations.</p> <p>Though, under the civil damage act, section 26, chapter 32, Code 1906, as construed by this Court, no damages can he given a widow against a licensed retailer of spirituous liquors, because of injury to her means of support by the death of her husband, caused by intoxicants sold her husband by him, the refusal of the court on defendant’s'motion to strike out of her 'declaration certain references to the death of her husband, will not on writ of error to this Court be treated as error when it appears as in this cáse, that defendant was not prejudiced thereby, and that, in ruling on said motion the court announced that the questions presented thereby could and would be acted upon by the court on the trial of the- case, and it further appears that on the trial the rights of the defendant were not prejudiced by the judgment of the court on his motion, (p. 646).</p> <p>2. Same — Harmless Error — Overruling Demurrer.</p> <p>Where upon demurrer to a declaration, and to each count thereof, the demurrer is overruled, and it appears that one or more of the counts are bad, and that the demurrer should have been sustained thereto; yet when it clearly appears that no evidence was admitted, or relief- given on the defective count, and that the rights of defendant were not prejudiced by the erroneous ruling of the court the judgment will not be reversed solely on this ground, (p. 647).</p> <p>3. Trial — Motion to Exclude Evidence — Waiver—Subsequent Introduction of Evidence.</p> <p>A defendant by introducing his own evidence after his motion to exclude the plaintiff’s evidence has been overruled thereby waives his motion to exclude, (p. 648).</p> <p>4. Ihtoxicatustg Liquors — Civil Damages — Limitations.</p> <p>In such an action by a widow against a licensed retail liquor dealer for injury to her means of support, due to illegal sales of intoxicants to her husband resulting in his death, she is limited in her recovery to damages accruing to her within one year prior to the date of her suit and up to the date of the death of her husband, and an instruction to the jury on this subject should .so limit them in their verdict, (p. 648).</p> <p>5. Same — Civil Damage Action — Exemplary Damages — Illegal Sale.</p> <p>In such an action by a widow against such retail liquor 'dealer, proof of the illegality of the sales of intoxicants by him.to her husband supplies all the elements necessary in other actions of tort to show fraud, malice, oppression or wanton, willful, or reckless conduct, or criminal indifference to civil obligation on the part of the defendant, justifying the jury in awarding exemplary damages against him, as provided by statute. (649).</p> <p>6. Same — Civil Damage Action — Damages—Instructions.</p> <p>In such an action if the plaintiff be entitled to actual damages, the jury may be told in an instruction that they may also award exemplary damages; but it is error to tell them that they should award exemplary damages. (649).</p> <p>7. Appeal and Error — Subsequent Appeal — Eight to Correct Former Ruling.</p> <p>It is a general rule, with few, if any exceptions, that a matter decided on appeal becomes, in effect, res judicata in that case; or, as it is frequently expressed, it become the law of that case in all subsequent proceedings; but when on a second appeal or writ of error it appears that the position of the parties has not been changed, or their rights injuriously affected by an erroneous ruling of the appellate court on the first hearing, and that no injustice or hardship would result from overruling the former decision, and it becomes necessary to reverse the case for other errors, the appellate court may correct its ruling on the former appeal or writ of error, and direct the lower court on new trial to disregard the first ruling. (650).</p> <p>8. Trial — Civil Damage Actions — -Instructions—Applicability to Evidence.</p> <p>In an action by a widow under said civil damage act, to recover from tbe defendant damages for injury to her person, and to her means of support, resulting from illegal sales of intoxicants to her husband, if there is no evidence of any injury to her person, it is error to submit to the jury in instructions given the question of damages to her person. (653).</p> <p>9. Same — Duty to Instruct — Requests Embraced in Charge Given.</p> <p>It is not reversible error for a trial court, having given one instruction thereon, to refuse to reiterate the same proposition hy other instructions to the jury. (p. 655).</p> <p>10. Intoxicating Liquobs — Civil Damage Actions- — Instructions.</p> <p>In an action under said civil damage act it is not error to refuse to instruct the jury that if they believe from the evidence that the plaintiff’s means of support derived from her husband for the year preceding the date of his death was as much and as adequate as it. had theretofore been, they should find for the defendant. The wife is entitled in each year to the best support, consistent with her station in life, that the husband in that year is capable of providing, and she should not be limited in her recovery by any such comparison, (p. 655;.</p> <p>11. Same.</p> <p>And it is error in such an action to instruct the jury that if they should find that the plaintiff’s husband had at all times retained within the year prior to his death sufficient money and property to properly support her according to her station in life she could not recover, (p. 655).</p> <p>12. Same — Civil Damage Actions — Damage—Sales by Agent.</p> <p>In such an action against him a liquor dealer is responsible for actionable injuries caused by sales of liquor made by his agents or servants within the general scope of their employment, though the particular sale in question was made without his knowledge or consent, or even in disobedience to his general or specific orders, (p. 656).</p> <p>,13. Tbiai/ — Civil Damage Actions — Instructions.</p> <p>It is not error for the court in an instruction to the jury on the subject of the weight and preponderance of the evidence necessary to support the plaintiff’s case to refuse to tell the jury “that they may arrive at this conclusion not from the number of witnesses who may have testified on either side of the case, but from the demeanor, character, reputation or credibility of the witnesses.” Such an instruction unless some such word as “alone,” or “merely” be inserted after the word “not,” is calculated, to mislead the jury and induce the belief that they have no right to consider the fact of the number of witnesses, (p. 657).</p> <p>14. Intoxica tin g Iuquoks- — 'Civil Damage Actions — Refusal to Sub* mil Special Interrogatories.</p> <p>It is error in the trial of such an action for the court, in the exercise of its discretion, to refuse to submit to the jury on the motion of the 'defendant a special interrogatory as to how much they had included in their verdict for actual damages, or in the alternative, how much was included therein for exemplary damages. It being one of the primary issues in the case, the plaintiff is entitled to know how much was round for actual damages, and thereby to ascertain the amount awarded for exemplary damages, and to he enabled thereby to test the correctness of the verdict on a motion for a new trial. (657).</p>

Action by Ida B. Mitchell and others against Malinda Penny. There was a directed verdict for defendant, and plaintiffs bring error.

<p>1. Adverse Possession — Interlock, of Patents — lights of Claimants.</p> <p>Point 6 in Wilson v. Braden, 48 W. Ya. 196, as to possession of interlock, re-affirmed, (p. 665).</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by C. R. Wyatt, Administrator of Ellsworth. Norris, against George W. Norris, Claude D. Norris, and others. From the decree, defendant Claude D. Norris appeals.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by the Mate Creek Coal Company against Fred C. Todd and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Raleigli County.</p> <p>Action by M. F. Matlieny against S. W. Farley and others, Judgment for plaintiff, and defendants bring error.</p>

<p>1. Highways — Unnecessary Passing Over Knoum Defect — Assump- , tion of Risk.</p> <p>If a traveller upon a highway, in attempting to pass over a defect therein, open and apparent and of which he had full knowledge, is thereby injured, and there was no necessity for his endeavor to pass over it, he is deemed in law to have assumed the risk incident to the attempt, and denied compensation for the injury on the ground of contributory negligence, (p. 689).</p> <p>2. Same — Known Defect — Care in Using.</p> <p>That it is not negligence per se to use a highway, known to be in bad condition, does not imply right in a traveler to compensation for injuries, recklessly incurred, nor freedom from duty to suffer reasonable abatement of strict legal rights in respect to highways and take reasonable measures for his safety, even to the extent of some delay and effort to avoid injury, (pp. 690-694).</p> <p>3. Negiigejíce — Direction of .Verdict — 'Clear Contributory Negligence.</p> <p>On the appearance of a clear case of contributory negligence, the trial court should take the case from the jury, upon a proper demand for such action, (p. 693).,"</p> <p>4. Highways — Unnecessary Use of Dangerous Way — Assumption of Risk.</p> <p>A traveller, having two reasonably convenient ways for his journey, one of which is dangerous and the other not, assumes the risk of injury, if he uses the dangerous way, and cannot recovery for any injury he may thereby sustain, (p. 691).</p> <p>5. Same — Use of Defective Highway — Actions for Injuries — Question for Jury — Necessity for Using Defective Way.</p> <p>If the evidence leaves it uncertain whether there was a safe and available way,, either by a public road or over adjacent private property, by which a traveller, injured by an obvious defect in a highway, could have avoided it, the necessity of assuming the risk, incident to the attempt to use it, is a question for the jury. (p. 689).</p> <p>6. Same — Defective Highways — Necessary Use — Care Required.</p> <p>If the circumstances justify a traveler in assuming the risk, incident to an attempt to use a dangerous place on a highway, he is required to exercise no more -than ordinary care for his safety in doing so, and whether he exercised such care or not is generally a question for the jury. (p. 690).</p>

Action by the Billmyer Lumber Company against the Merchants Coal Company of West Virginia and others. Judgment for plaintiff, and the mentioned defendant appeals.

Va. Barton. W. ICubn, the plaintiff in error, instituted his action in the Circuit Court of the United States for the Northern District of West Virginia against Fainnont Coal Company, alleging in substance that the plaintiff had sold to J. N. Camden the coal under a tract of land; that by conveyance from Camden the coal had become the property of the defendant Fair-mont Coal Company, and that in removing the coal the defendant had not left pillars to sustain the surface in…