Volume 67 — West Virginia Reports

<p>Error to Circuit Court, Kanawha County.</p> <p>Action' by Samuel Bell and others against T, J. Tormey and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Jury — Competency—Prejudice.</p> <p>The fact that one is prejudiced against the business' of selling intoxicating liquors does not render him incompetent as a juror on the trial of an action for damages arising under the liquor law, if he has no prejudice against the party engaged in that business from whom the damages are claimed.</p> <p>2. Same — Competency of J-uror — Right of Litigant to Examination.</p> <p>. A litigant has the right to ascertain the fitness of the jurors called, by an examination within the scope of that provided by Code 1906, chapter 116, section 17; but the trial court, in the exercise of a sound discretion, may properly limit th’e extent of the examination in relation to any of the qualifications contemplated by that statute.</p> <p>3. Trial — Instructions.</p> <p>An instruction based upon undisputed facts in evidence is not erroneous merely because it fails to submit those faets with the qualification “if the jury believe from the evidence.”</p> <p>4. Intoxicating Liquors — Right to Civil Damages — Injury to Means of Support — Intoxication of Minor Son.</p> <p>If a mother has been injured in her means of support by the intoxication of her minor son, she has a right of action against ' one who unlawfully sold him the liquors which caused in whole or in part the intoxication, although at the time of such injury she was living with the husband and father on 'whom she depended partly for support.</p> <p>5. Tbial — Instructions—Evidence to Support.</p> <p>In cases arising under the “civil damage law” it is improper to submit to the jury by an instruction whether they shall believe the plaintiff has been injured in person as well as in means of support, when there is no evidence of injury to plaintiff’s person.</p> <p>6. ' Damages- — Exemplary Damages.</p> <p>Whether exemplary damages shall be found, in any case, must be left to the discretion of the jury; it is error to instruct that they should find exemplary damages.'</p> <p>7. Intoxicating Liquobs — Civil Damage Actions — Sufficiency of Evidence.</p> <p>In “civil damage eases,” as in ordinary damage cases, the evidence must afford data, facts and circumstances, reasonably certain, from which the jury may find compensation for the loss suffered by reason of the injury proved.</p>

. Suit by the Mingo County Bank and another against the Bawl Coal & Coke Company and others. From the decree Bichard Williamson and wife appealed, and their appeal said defendant company moves to dismiss.

<p>1. Detinue — Verdict—Sufficient—Description of Property.</p> <p>If tbe verdiét be for plaintiff in an action of detinue, tbe description of tbe property must be such as to make it capable of being identified.</p> <p>2. Same.</p> <p>When tbe verdict is for plaintiff, and describes tbe property not otherwise tban “tbe property described in bis’ declaration,’’ and tbe declaration sufficiently describes it, tbis will supply tbe lack of description in tbe verdict and render it valid.</p> <p>3. Same — Parties—Joinder of Defendants.</p> <p>•W. is the owner of certain personal property in the possession of F. who, claiming to own it, delivers it to P. and pledges it to him to secure a debt owing by F. to P.</p> <p>Held: F. and P. maybe sued jointly in detinue by W.</p>

<p>.1. Municipal Coepokations — Constructing Streets — Casting Collected Surface Water on Abutting Property.</p> <p>Where in constructing a new street a municipal corp oration collects the surface water in holes left in the street opposite an abutting lot, and because of the soft and porous condition of the soil the water so collected is caused to flow in and under the ■same, causing the soil thereof to slip and destroy the buildings thereon, such municipal corporation is liable in damage^ to the owner of such lot for the consequential injuries sustained, as for collecting such surface waters in drains or gutters and casting them in a body thereon.</p> <p>2. Same — Constructing Streets — Injuries to Abutting Property.</p> <p>If in so constructing and grading one of its streets on a hillside, a municipal corporation build an embankment, in front of an abutting lot and thereby increases the lateral pressure thereon, which, combined with the increased flow of the surface water, caused by such street improvement, or by the water collected in holes or in drains or gutters and cast in a body on such lot, causes such lot to slip and to destroy the buildings thereon, such corporation is liable in damages to such lot owner for the consequential injuries to his property.</p> <p>3. Appeal and Eebou — Review—Erroneous Instructions.</p> <p>An instruction to the jury, covering a case not presented by • the pleadings, though there be evidence on'the subject covered thereby, is erroneous, and unless it clearly appears that the rights of the party complaining have not been injuriously affected thereby, the giving of such an instruction will constitute reversible error.</p> <p>4. Evidence — Opinion'Evidence—Inferences from Facts.</p> <p>Though opinion evidence as a general rule is not admissible, still when the facts are such, that it is manifestly impossible to present them to the jury with the same force and clearness as they appeared to the observer, then opinion is admissible as to the conclusions and inferences to be drawn therefrom.</p> <p>(Robinson, Pbesident, Absent).</p>

<p>1. Breach oe Marriage Promise — Dates of Promise and- Request for Performance — Sufficiency of Allegations.</p> <p>In a count on a promise to marry generally in a declaration in assumpsit for breach, of the contract, the dates of the promise and' request for performance need not be so stated as to show the lapse of a reasonable time between them for performance. Being immaterial and merely formal, the dates may be laid under a videlicet, and the proof may vary therefrom.</p> <p>2. Trial — Instructions—Incomplete Charge Cured by Others.</p> <p>An incomplete instruction, correct as far as it deals 'with its subject matter, is perfected by tbe giving of another for either party, supplying the omitted matter.</p> <p>3. Bbeach of Marriage Pbomise — Requisites of the Contract — Express or Formal Engagement.</p> <p>Indefinite and indirect conversation between the plaintiff and defendant in an action for breach of a promise of marriage, capable of being interpreted as relating to marriage and aided by a course of conduct, indicative of betrothal, is sufficient to sustain a finding of the marriage contract, without proof of an express or formal engagement.</p> <p>4. Same — Immoral Consideration — Question for Jury.</p> <p>Proof of indulgence, by • the parties to a contract of marriage, in illicit sexual intercourse at the time and place of the making of the promise, does not, as matter of law, preclude' a verdict in an action for breach of the contract.</p> <p>5. Same — Immoral Consideration.</p> <p>Though a promise of marriage, made in consideration of the allowance of illicit sexual intercourse, is void for illegality and immorality of the consideration, what' the consideration- was is a question for the jury, when the evidence concerning it is inconclusive, but tends to prove mutual promises to marry, as well as immoral conduct at or about the same time.</p> <p>6. Same — Accrual of Action — Renunciation of Contract.</p> <p>Renunciation of a contract of marriage alters the status of the parties ipso facto and a right of action accrues at once.</p> <p>7. Same — Renunciation of Contract — Institution of Action — Effect of Subsequent Offer of Performance.</p> <p>After the injured party in such ease has signified intention to treat the contract as terminated, except for the purposes of an action for damages for the breach thereof, by the institution of such an action, a subsequent offer of performance by the other party does not bar recovery.</p>

<p>1. Adjoining Landownep.s — ■Lateral Support — Land in Natural State.</p> <p>' An owner of land is entitled, ex jure naturae, to lateral support in the adjacent land for his soil, but not for buildings erected thereon.</p> <p>2. Same — Lateral Support — Excavations Causing Injury — Liability.</p> <p>An excavation, made by an adjacent owner, so as to take away the lateral support, afforded to his neighbor’s ground, by the earth so removed, and cause it, of its own weight, to fall, slide or break away, makes the former liable for the injury, no matter how carefully he may have excavated. Such right of support is a property right and absolute.</p> <p>3. Same — Lateral 'Support — Buildings•—Excavations by Neighbor— Care Required.</p> <p>Though an adjoining owner has no right of support in his neighbor’s land for his buildings, unless he has acquired it by grant or otherwise, and the latter may excavate in his land so as to cause them to fall, without committing a trespass or taking away a property right, provided the adjacent soil would not have fallen of its own weight, he may nevertheless be liable, in respect to his conduct, for the injury done.</p> <p>4. Same.</p> <p>An adjoining owner, excavating on his own land, must exercise reasonable care, prudence and skill, in doing so, for the safety of buildings, if any, standing on the adjacent land. This duty is enjoined, not by any right, of support, ex jure naturae, that the owner of the building has in the adjoining land, but by a legal rule of conduct, requiring every owner of property so to use it as not to injure his neighbors’s.</p> <p>5. Same.</p> <p>In altering the condition of his land, adjoining another’s building, by excavating the soil and replacing it with a structure, the owner must not only abstain from collateral negligent or wrongful acts, such as unnecessarily heavy blasting, digging out-the adjacent wall, projecting heavy articles against the wall or building, and the like, but must perform the work with reasonable care for the safety of the adjacent building, such as diligence in the construction of his wall after having removed the soil, removal of the soil and replacement thereof with the wall by sections, if necessary as a measure of reasonable precaution, or the adoption of other reasonable and practicable precautions.</p> <p>6. Same — Lateral Support — Building—Temporary Support in Excavating.</p> <p>In such case, the measure of his duty goes beyond the exercise of care in making the excavation, a mere incident of the' alteration intended, and extends to reasonable means of temporary support of the adjacent building, while the work of erecting the new structure is in progress.</p> <p>7. Same — Lateral Support — Buildings—Temporary Support in Excavating — Extent of Care Required.</p> <p>Though this duty, respecting adjacent buildings, ‘ is imposed by law upon a person, while engaged in altering the condition of his own property, he is not a guarantor of their safety, nor bound to take precautions, or adopt measures, for their protection beyond such as are reasonably practicable, not unduly expensive, and amount to reasonable and ordinary care and prudence for their safety.</p> <p>8. Sa¡me — Lateral - Support — -Buildings-—Notice of Intent to Excavate.</p> <p>In such case, the adjoining owner is under the further duty of giving the owner of the building notice of his intention to alter the condition of his property, the character of the alteration to be made and the time thereof, and allow him opportunity to adopt such further measures for' the absolute protection and sceurity of his building as he may see fit to adopt.</p> <p>9. Same — Lateral Support — Buildings—Notice of Intention to Excavate — Necessity for Formal Notice.</p> <p>The giving of formal notice is unnecessary in such case, if the owner of the building has full knowledge of the character and time of the making of the alteration and opportunity to adopt protective measures for the safety of his building.</p> <p>10. Same — Lateral Support — Buildings—Notice of Intention to Excavate — Effect'on Duty to Exercise Care.</p> <p>Such notice or knowledge on the part of the owner of the building does not absolve the adjoining owner from duty to exercise reasonable care and'prudence to avoid injury-.to the building in improving^ his own property. The giving of such notice, when necessary, is simply an additional precaution, omission of which would, under some circumstances,' amount to negligence.</p> <p>11. Same — Lateral Support — Buildings—Excavation by Neighbor— Duty of Owner to Prop Building.</p> <p>The duty of the owner of the building to prop it up, if necessary, is not inconsistent with the requirement of care on the part of the adjoining owner in the improvement of his property. If the latter exercises reasonable care and injury nevertheless results, he is not liable, the loss being attributable in law to the failure of the owner to do further things necessary to absolute security. If, on the contrary, he did not exercise such care, he is liable, although the owner could have prevented the injury.</p> <p>12. Same — Lateral Support — Use of Premises Affecting Adjoining Land — Defective Buildings — Duty of Adjacent Owner Excavating.</p> <p>Neither defective or improper construction of the building, nor its use for manufacturing purposes, involving the running of machinery therein, will bar an action for damages for injury thereto, resulting from negligent excavating, under the law of contributory negligence. The excavator must deal with the conditions as he finds them, using reasonable and ordinary care, under all the circumstances, to avoid injury to the building and its contents.</p> <p>13. Same — Excavation Affecting Adjoining1 Structure — Rights of • Tenant.</p> <p>In case of the fall of a building, occasioned by negligent excavation, a tenant of a single floor or room thereof, deprived of his right of occupancy and use, and sustaining loss of personal property, by reason of the fall, has a right of action for at least nominal damages, in respect to the tenancy, and for consequential damages, in respect to the personal property injured and destroyed.</p> <p>14. Master and Servant — Injury to Third Person — Independent Contractor.</p> <p>Employment undeb a contract, defining not only wliat is to be done, but also the manner in which the work is to be executed, is not independent, and, if injury to a third person result from the performance of the work in conformity with such contract, and the thing done or the manner of its performance if wrongful or negligent, the employer is liable.</p> <p>15. Same.</p> <p>If an adjoining owner, about to excavate, along the side of a building, belonging to another person, for the erection of a building on his own property, adopt, as a means of protecting the building, the cutting of a trench and construction of a concrete retaining wall therein, four feet from the building along the side thereof, and then running directly to one corner thereof, and let of work of cutting the trench and constructing the retaining wall to contractors, under contracts, leaving to them no discretion as to where or how such wall shall be constructed and such measure of protection does not amount to the exercise of reasonable and ordinary care for the safety of the building, and, by reason of such neglect, the building fall, the employer is liable.</p> <p>16. Adjoining Landowners — Injury to Building Toy Excavating on Adjacent Premises — Sufficiency of Declaration.</p> <p>It suffices in a declaration, seeking damages for an injury to a Building or a tenant thereof, resulting from negligent excavation, to set forth the relative situation of the properties, the interest of the plaintiff, the duty of the defendant, the acts done and the results, and charge that the work was done injuriously, wrongfully, carelessly and negligently.</p> <p>17. Evidence — Opinion Evidence:- — Impressions in Nature of Physical Pacts.</p> <p>The opinion of a witness, as to the physical cause of the fall of a building, who, being in it, just a few minutes before it fell, observed indications of the impending collapse and was on the premises and examined it immediately after it fell, is admissible in evidence, on the ground that the impression, mad® upon his mind at the time, is in the nature of a physical fact, and, the further ground of his obvious inability to portray to the jury all the facts, tending to produce the impression.</p> <p>18. Depositions — Admissibility in Evidence — Opinions of Experts Eased on Assumed Pacts.</p> <p>Opinions of expert witnesses, based on assumed facts, stated in hypothetical questions embodied in depositions, taken in advance of trial, may be read as evidence on the trial, provided evidence of all the facts, on which they were based, has been introdncd.</p> <p>19. Appeal and Error — Harmless Error — Exclusion of Evidence,</p> <p>Exclusion ' of evidence, constituting no ground, of defense, offered by, a defendant, though admissible if offered by the plaintiff, as tending to sustain the action, is not prejudicial to the former, an$, therefore, not erroneous.</p> <p>20. Same — Exceptions—Excluding Answer of Witness.</p> <p>To sustain an exception for refusal to permit a witness to answer a question, the record must show what answer the witness was expected to make.</p> <p>21. Trial — Instructions—Misleading Instructions.</p> <p>It is not error to refuse instructions, so .framed as to give them a tendency to mislead the jury.</p> <p>22. Adjoining Landowners — -Actions—-Instructions.</p> <p>In an action for injury to the contents of 'a building by alleged negligent alteration of the condition of adjacent property, it is reversible error to refuse an instruction, telling the jury they should find for the defendant, unless they believe the injury was the natural and probable consequence of negligence or a wrongful act on the part of the defendant and that such consequence ought to have been foreseen by him in the light of the attending Circumstances. .</p>

<p>1. Ejectment — Evidence—Title in Plaintiff.</p> <p>In ejectment it suffices affirmatively for the plaintiff to show a recoverable legal title in himself for the land in controversy.</p> <p>2. Adverse Possession — Effect—Vesting Title.</p> <p>Seizen ot possession of land, adverse to all, for the length of time of the statutory bar to real actions, vests title in the party who has been so possessed. It makes recoverable legal title.</p> <p>3. Ejectment — Evidence—Title of State.</p> <p>A plaintiff in ejectment who relies upon title by adverse possession need not affirmatively prove that the state has no title to the land.</p> <p>4. Adverse Possession — Presumption of Grant.</p> <p>Where there has been a. holding of land with all the essentials of adverse possession for the period of the statutory bar to real actions a grant is presumed.</p> <p>5. Presumption of Grant.</p> <p>So .far as the principles herein enunciated conflict with the sixth point of the syllabus in Witten v. St. Glair, 27 W. Ya. 762, the latter is disapproved.</p> <p>6. Quaere.</p> <p>Does statute of limitations run against state as to its lands? See note by Judge Brannon.</p>

<p>1. Execution — Lien—Property Subject,</p> <p>A writ of fieri facias, in the hands of an. officer for execution, is a lien upon a legacy given to the debtor.</p> <p>2. Same — Enforcement of Lien.</p> <p>A suggestion and summons to answer it, under sections 10 and 11, chapter 141, Code 1906, do not create a lien, hut are only means of enforcing an execution lien already existing.</p> <p>3. Same — Payment of Debt to Execution Debtor — Liability to 'Ex-cution Creditor.</p> <p>One paying an execution debtor a debt, with notice of an execution against him, is liable therefor to the execution credit- or.</p> <p>4. Justice oe the Peace — Execution—Lien.</p> <p>An execution issued by a justice has the same effect as a lien as one issued upon a judgment of a circuit court.</p>

<p>1. Municipal Corporations — Charter Amendment — Jurisdiction of Circuit Court.</p> <p>A circuit court has no jurisdiction or power to amend .the charter of a city or town granted by special act of the Legislature.</p> <p>2. Same.</p> <p>When a charter has once been granted to a city or town 'by special act of the Legislature, though the population of such city or town afterwards decrease below two thousand, this does not put it under the power of the circuit court to amend its charter.</p> <p>3. Prohibition — When Lies — Court Acting Beyond its Jurisdiction.</p> <p>A circuit court, in a proceeding to amend a town or city charter, acts in a quasi judicial character,. and if it has no proper jurisdiction or power to act in the particular case on the subject matter before it, a writ of prohibition lies against the court.</p> <p>4. ' Prohibition — Writ oír — Who May Maintain.</p> <p>A city, or persons who are residents and tax-payers in it, have such interest as will enable them to maintain a writ of prohibition against a circuit court wbicb is proceeding to amend tbe charter of such city without jurisdiction to do so in the particular case.</p> <p>5. Same — Procedure.</p> <p>When a proceeding to he prohibited by writ of prohibition shows on the face of its record want of jurisdiction, no demand upon the court to cease the proceeding is necessary before asking the writ.</p>

<p>1. Prohibition — Grounds■—Error of Law.</p> <p>A writ of prohibition, does not lie against an execution for costs awarded by a circuit court on a motion to quash an execution, the. circuit court haying lawful jurisdiction of such.motion.</p> <p>2. , Same — Ground—■Amount of Costs not Warranting Writ of Error.</p> <p>Where the proceeding is of such nature as to forbid a writ of prohibition when the amount is over $100, the fact that it is less in amount will not give prohibition in a proceeding of like ■ nature.</p> <p>(Robinson, Pbesident, Absent).</p>

<p>Divobce — Suit Money and Maintenance Pending Appeal — Jurisdiction of Circuit Court at Any Time Pending the Suit — Appellate Jurisdiction.</p> <p>The circuit court has jurisdiction to award suit money and maintenance necessitated by the pendency of an appeal of a divorce suit. The power to make such an award does not lie in the appellate 'court.</p>

Bill by Coal & Coke Railway Co. against the Attorney General ■of West Virginia and the Prosecuting Attorney of Kanawha County, to enjoin them from enforcing the two cent passenger rate law. Decree for plaintiff, and defendants appeal.

<p>1. Attorney and Client — Application for License — Evidence of Good Character.</p> <p>On application to this Court for license to practice law, as provided by section 1, chapter 119, Code 1906, and the rule of this Court made pursuant thereto, the order of the county court, as to the good moral character of the applicant, will be treated as prima facie evidence only, and the provision of the statute relating thereto will be construed as prescribing what legal effect as evidence should be given thereto when standing alone and uncontradicted. '</p> <p>2. Same — Application for License — Objections—“May."</p> <p>The right to practice law given by said statute is not a de jure right, and the word “may” employed therein, in the provision that this Court “may upon the production of a duly certified copy of the order of the county court * * * grant such applicant a license to practice law in the courts of this State,” will be construed to have been used in its popular, or permissive sense, and not as synonymous with the word “shall;” and |if upon application for such license and objection to the granting thereof it be clearly shown that the applicant has not the requisite good moral character entitling him to admission to practice law in the courts, his application for such license will be denied.</p> <p>3. Same — License—Good Moral Character — Evidence.</p> <p>A case where, upon charges against an applicant for license to practice law, and protest and objection to granting him license preferred by a -bar association, and upon the evidence adduced in support of said charges, he was adjudged not entitled to such license and license refused.</p>

<p>1. PARTITION — Who Mat Maintain — Action- t>y Remaindermen.</p> <p>One of several remaindermen in land after a life estate cannot have partition during the continuance of the life estate, even though he has acquired that life estate, unless he waives that life estate.</p> <p>2. Partition bt Remaindermen.</p> <p>Otley v. M’Alpine, 2 Grat. 340, disapproved.</p>

<p>1. Deeds — Presumptions-—Mental Capacity of Grantor.</p> <p>Tlie law presumes .that the grantor is sane and possessed of sufficient mental capacity to make a deed at the time of its execution, and the burden of proving that he was not then sane, or competent, is on the one attacking its validity.</p> <p>2. Same — Validity—Mental Capacity of Grantor.</p> <p>If a person is capable of knowing the nature, character and effect of his deed at the time of making it, he is considered as legally compos mentis.</p> <p>3. Same — Validity—Mental Capacity of Grantor — Fraud.</p> <p>Eccentricity of manner and mental weakness of the grantor which. does not amount to imbecility are not sufficient to overthrow a deed in the absence of proof of fraud in its procurement.</p> <p>4. Fraud — Sufficiency of Evidence.</p> <p>Fraud will not be inferred from proof of the mere opportunity to commit it; there must be evidence of actual fraud; this evidence may be either direct or circumstantial, and, if circumstantial, the facts and circumstances relied on to establish fraud must be inconsistent with fair dealing.</p>

Action by J. B. Butcher and others against S. Ii. Sommer-ville and others. There was a directed verdict for defendants, and plaintiffs bring error.

<p>1. ActioN — Waiver of Tort.</p> <p>If a railroad company, without the knowledge or consent of the owner, takes the property of a contractor, left stored temporarily on its right of way, and appropriates the same to its own use in a manner indicating a claim of right in opposition to that of the owner, the latter may waive the tort and recover the value of the property taken in an action of assumpsit.</p> <p>2. Bailment — “Involuntary Bailee.”</p> <p>•By such tortious taking of property by a railroad company, so left on its right of way, it does not become an involuntary bailee thereof and liable to account only as such, as by restoration of the property to .the owner, and in damages for the use thereof. The owner may elect to waive the tort and sue for the value of his property.</p>

<p>1. Statutes' — Construction—Remedial Statutes.</p> <p>That which is plainly within' the spirit, meaning and purpose oí a remedial statute, though not therein expressed in terms, is as much a part of it as if it were so expressed.</p> <p>2. Same — Construction.</p> <p>Of two permissible constructions of a statute, one working manifest injustice and the other equity and fairness, the latter is to he adopted, upon the presumption that the legislature did not intend the results flowing from the former.</p> <p>3. Elections — Commissioners of Election — Representation of Parties — Construction of Statutes.</p> <p>Section 7 of chapter 3 of the Code of 1906, relating .to the appointment of commissioners of election, impliedly gives right of representation of the two leading political parties in every election and prescribes a mode of determining the right of preference, giving it to those whose candidates received the highest number of votes in the last preceding election, when there are such parties.</p> <p>4. Election — Commissioners of Election — Representation of Parties.</p> <p>When none of the parties, participating in any election, took part as an organization in the last preceding election, the statutory rule for determining right of preference is inoperative, but the two leading parties are nevertheless entitled to representation and may demand the appointment of qualified persons, designated by them for commissioners and challengers.</p> <p>5. Same — Political Parties — Position in Municipal Elections.</p> <p>A political party or organization for national, state, county and magisterial district elections is not one for the purposes of a municipal election, unless tlie members thereof participate as such an organization in the latter by the nomination and support of candidates therein under the party name.</p>

<p>Petition of N. H. MeClaugherty for writ of mandamus against the Bluefield Waterworks & Improvement Company.-</p>

<p>1. Mines and Minerals — Exceptions—Quiet Possession — Effect.</p> <p>In a grant of land, an exception of the oil and gas and the right to go upon the land for the same is not defeated hy covenants for quiet possession of the land and freedom from encumbrances thereon. Such covenants relate only to the thing conveyed — the land without the oil and gas — the land burdened with the right to operate thereon for the oil and gas retained.</p> <p>2. Covenants — Construction.</p> <p>Covenants in a deed that, are plainly intended to defend that which has been granted must be construed to be only co-extensive . with the grant.</p> <p>3. Mines and Minerals — Oil and Oas in Place — Possession of Surface.</p> <p>Mere possession of the surface of land as to which the title to the oil and gas in place thereunder has been severed is not possession of that oil and Gas.</p> <p>4. Same — Oil ancl Oas Severed in Title — Possession of Owner of Title. 8</p> <p>Oil and gas severed in title from that of the land under which they lie are not in the possession of the owner of the surface, un less'he takes actual physical possession of them, as hy drilling wells into the same.</p> <p>5. Same — Payment of Taojes — Presumption.</p> <p>On a claim of forfeiture for non-entry of oil and gas which have been served in title from that of the land under which they lie, it will be presumed that the land was assessed and taxed as a whole at the time of the severance, that it has since been carried on the land books in the same manner, and that the taxes have been paid on the land as a whole, when the contrary does not appear.</p>

<p>1. Appeal and Ekpok — Decisions Reviewable — Amount in Controversy.</p> <p>In an action of trespass on, the case for injury to real estate, where plaintiff and defendant agree before trial that if plaintiff is entitled to any damage at all it sjiall be twenty-five dollars, and there is a verdict and judgment for defendant, there is no jurisdiction by writ of error in this Court.</p> <p>2. Same — Decisions Reviewable — Controversy Concerning A Way.</p> <p>If, in such action, deefndant does not plead the general issue, but sets up by special plea the right to a private way by prescription over plaintiffs land, such plea does not convert the plaintiff’s action into a controversy concerning a way, within the meaning of Sec. 3 of Art. VI'II of the Constitution of West Virginia, so as to entitle him to a writ of error to this Court, when the damage claimed for the trespass is less than one hundred dollars.</p> <p>3. Quaeee.</p> <p>Whether a license, or right of defendant acquired by prescription, to use plaintiff’s land can he given in evidence under the general issue, in actions of trespass guare clausum fregit, discussed „hut not decided.</p>

<p>1.’ Mines and Minerals — Construction of Deed — Reservation of Portion of Oil.</p> <p>The legal effect of a provision in a deed excepting and reserving out of and from the grant at all times thereafter and forever unto the grantor, his heirs and assigns, one tenth of all the mineral oil that may he obtained by the grantee, his heirs and assigns from the land granted, to be delivered on the land to the grantor, his heirs and assigns, his or their agents, free of expense, except the furnishing of barrels or other means of transportation, is to except and reserve in such grantor, his heirs and assigns, to be delivered as stipulated, a royalty of one tenth of all the oil produced, possessing the same quality of estate as royalty reserved in an ordinary lease for oil and gas purposes.</p> <p>2. Same — Oil and Gas Lease — Construction.</p> <p>If the owner of the land subject to such an exception and reservation, lease the same for oil and gas reserving a one-eighth royalty, without stipulating how the one-tenth of all the oil reserved in such prior grant is to be discharged, his lessee will be entitled to ded.uct the same from the one eighth royalty oil reserved in the lease. Affirming prior decisions involving the same proposition.</p>

<p>New Tktal — Diligence.</p> <p>If good grounds for the continuance of a cause he known to a party, or his counsel, before trial, and no continuance is asked, his motion after trial to set aside the verdict and judgment based on the same facts should be denied. To entitle a party to protection in such cases he should be diligent at every stage of the proceedings.</p>

<p>1. Malicious Prosecution — Sufficiency of Declaration — Allegation of Malice.</p> <p>As malice is an essential element of an action for malicious prosecution, lacle of an averment thereof in the declaration cannot he disregarded on demurrer, under the statute of jeofails, and is fatal.</p> <p>2. Pleading — Defects—Cure by Verdict.</p> <p>Such a' defect in a declaration is not cured by verdict, when a demurrer to the declaration has been interposed and overruled.</p> <p>3. Appeal and Error — Record—Necessity for Bill of Expections or Assignments of Error.</p> <p>To be available in the appellate court, erroneous rulings of the trial court, respecting admission and exclusion of evidence, must be, not only saved upon the record, but specifically pointed out by special bills of exception or assignments of error in the petition or brief. The Court will not search the stenographic report of the evidence for them.</p>

<p>1. Appearakce — Service of Process — Waiver of Defects.</p> <p>Though an appearance in a cause, for any purpose other than to take advantage of defective execution, or non-execution, of process, consitutes a waiver of d^gjcts in the service of process, the purpose of such appearance must hear some substantial relation to the cause. In other words, it must he a purpose within the cause, not merely collateral thereto.</p> <p>2. Same — General Appearance.</p> <p>A mere inquiry, as to whether a continuance can he taken, without waiver of service, or offer to move for a continuance, provided it can be done without such waiver, does not amount to a general appearance.</p> <p>3. Same.</p> <p>A general appearance must be express or arise by implication from the deefndant’s seeking, taking or agreeing to some step or proceeding in the cause, beneficial to himself or detrirhental to the plaintiff, other than one contesting the jurisdiction only.</p>

<p>1. Electricity — Liability of Seller of Electricity to Third Persons —Person Killed by Electricity After Delivery to Buyer.</p> <p>The Wheeling Electrical Company sold electricity to the Bridgeport Electrical Company, to he used hy the latter company in lighting the streets of Bridgeport, delivering the electricity from the wire of the Wheeling company to the wire of the Bridgeport company at a point where the wires of the two companies met. A wire of the Bridgeport company conveying the electricity along a street was grounded, and killed a person with its current. The Wheeling company is not liable to an action for the death of such person.</p>

<p>1. Equity- — Decree Pro Gonfesso — necessity for Plea or Answer to ' Prevent Decree.</p> <p>When a bill specifically assails rights claimed by a defendant who is summoned or enters “an appearance in the suit recognizing the jurisdiction of the court, he must maike direct defense by plea or answer if he would prevent decree against him on the bill taken for confessed.</p> <p>2. Sauk.</p> <p>In a suit for a settlement and distribution of the assets of an insolvent firm, though the bill makes no allegations affecting the claim of a creditor who is made defendant and appears thereto, if he does not in some way present his claim for adjudication, or does not meet the bill by plea or answer, a decree in the cause will be one upon the bill taken for confessed as to him.</p> <p>3. Same.</p> <p>A mere suggestion to the court by a defendant that his rights are involved in another pending cause will not alone suffice to prevent decree against him upon the bill taken for confessed. If he would rely upon the pendency of the other cause as a defense to the bill, he must plead it in such a way as to show that it is a bar, or that the other cause has priority of jurisdiction.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by J. H. Farley against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1.Husband and Wine — Deeds—Estate by Entries -for Life — Contingent Remainder.</p> <p>A deed to T. S. and M. J. S., Ms wife, contains the following clause, viz: “to be held by them as. a homestead for them-Iselves, and after them to their heirs, One Hundred Acres of land.” Heed:</p> <p>I. The husband and wife take an estate by entireties for life only, with the right of survivorship.</p> <p>II. Under the statute abolishing the rule in Shelley’s Case the heirs of the husband and the heirs of the wife, respectively, take a contingent remainder.</p> <p>III. Upon the. death of either husband or wife, title to one undivided moiety of the land vests immediately in his, or her, heirs, as the case may be, subject to the life estate in the whole of the surviving life tenant; and upon the death of the survivor, title to the other moiety vests in his, or her, heirs.</p> <p>2. Deeds — Construction—Intention of Parties.</p> <p>In construing deeds, as well as wills., the purpose is to ascertain the intention of the parties, and when the intention is thus ascertained it will be effectuated, unless it contravenes some principle of law.</p> <p>3. Husbakd and Wife — Deeds—Remainder to “Their Heirs”- — Presumptions.</p> <p>Where an estate in lands is granted to a husband and wife for life with remainder to “their heirs,” the presumption of law is that the heirs of each, as a separate class, take a moiety of the remainder.</p> <p>4. Deeds — -Construction—“Heirs."</p> <p>The word “heirs,” when used in an instrument of conveyance to designate the class of persons to whom an estate is conveyed, should be given its legal and technical meaning, unless there is some other language in the conveyance clearly showing that the word was intended to have a different meaning, or unless the circumstances of the case are inconsistent with such meaning.</p> <p>5.’ PARTITION — Right to Remedy — Persons Seised in Common and Entitled to Possession.</p> <p>When two or more persons are seized in common of the same tract of land and are entitled to the possession, they may have partition, regardless of their source of title.</p> <p>6. JUDGMENT— Conclusiveness — Matters Concluded.</p> <p>A decree entered in a suit brought by a creditor attacking a deed as fraudulent as to his debt, which sets aside the deed only as to his debt and directs a sale of the land, has no effect upon the title conveyed by the deed, when it appears that there was no sale under the decree, and that the suit was afterwards dismissed on motion of the attacking creditor.</p> <p>7. Estoppel — Deeds—-After Acquired Title.</p> <p>Where one, having only a life estate in lands, makes a deed purporting to grant it in fee, and convenants to warrant generally the title, and afterwards acquires title adverse to the title granted, such after-acquired title will pass by way of estoppel to his grantee or those claiming under him.</p> <p>S. Husband and Wife — Estate by Entireties for Life-Suvivorship — Statutory Provisions.</p> <p>Section 1.8, chapter 71, Code (1906), does not abolish the right of survivorship between husband and'wife in a joint estate held by them for life only. Survivorship as to such an estate remains as at common law.</p>

<p>1. Insurance — Proofs of Loss — 'Waiver—Denial of Liability.</p> <p>Denial by a fire insurance company, within the sixty days given the insured to furnish preliminary proofs of loss, of'its liability on other grounds, is in legal effect a waiver of the conditions of the policy requiring such proofs.</p> <p>2. Same — Proofs of Loss — Waiver—Authority to Make.</p> <p>■ But such denial and notice thereof to the insured to bind the insurance company must be by some officer or agent having authority, express or implied. Neither the1 declaration of a local soliciting agent nor of an adjuster not shown to have authority to make such denial will bind the insurance company, or excuse the insured from compliance with the conditions, of the .policy to furnish such preliminary proofs.</p> <p>3. Same — Action on Policy — Conditions Precedent — Proofs of Loss.</p> <p>. Furnishing of the preliminary proofs of loss as required by the conditions of a policy of fire insurance is a condition precedent to any right of action thereon, and unless waived an action on the policy does not accrue to the insured until such proofs have been furnished.</p>

<p>1. Executors and Administrators — Rights of General Creditor— ÉUI Against Eaecutor.</p> <p>A general creditor of a deceased person cannot maintain a bill in equity against tbe personal representative, to charge, in his hands, the personal estate only, without showing some ground of equity jurisdiction, such as inadequacy of the legal remedies, inability to obtain satisfaction of his debt by pursuit thereof to judgment and execution, or necessity for discovery.</p> <p>2. Same — Failure to File Inventory — Bill for Discovery.</p> <p>Mere failure of a personal representative to return an inventory of the personal estate within the time in which the law requires him to do so, will not sustain a bill for discovery and relief in such case. Such a bill must comply with the rule, requiring a showing of necessity for the discovery, due to indis-pendability of the evidence sought and inability to obtain it otherwise than by discovery.</p>

<p>1. 'Appeal and Error — Hearing of Cause — Notice.</p> <p>A notice of intention to insist upon the hearing of a cause, .at a certain term of the appellate court, at a place outside of the grand division to which the cause belongs, and to ask that it he placed in the argument list and set for hearing at said term, is sufficient.</p> <p>2. Same — Bonds—Acknowledgment.</p> <p>An appeal bond need not be acknowledged by the obligors.</p> <p>3. Exceptions, Bill oe — Signing in Vacation — Necesity for Record Order.</p> <p>To enable á judge to sign and certify bills of exception in va- , cation, within thirty days after adjournment, it is not necessary to reserve right to do so by an order, entered of record.</p> <p>4. Same — Time for Alloioance.</p> <p>Intervention of a special term in the thirty day period, allowed for taking bills of exception after adjournment, does not shorten said period nor deprive the court or judge of power to allow such bills. Within said period, they may be allowed either in court or in vacation.</p> <p>6. Assault and Battery — Admissibility of JEfvidenoe — Damages. •</p> <p>In an action for assault and battery, evidence of loss or damage from interruption to a particular vocation or calling under a contract with a certain employer, is admissible under a general charge in the declaration, that the injuries inflicted upon the plaintiff prevented him from transacting his necessary affairs and business, in the absence of a demand for a bill of particulars, specifying the character of the vocation or employment and the nature and extent of the loss.</p> <p>6. New Trial — Newly Discovered Evidence — Diligence. '</p> <p>An applicant for a new trial, on the ground of after discovered evidence, must clearly show his lack of knowledge of such evidence before the trial and diligence to obtain such knowledge and the evidence itself. He must set forth the facts, showing his lack of such knowledge,- his efforts to obtain it and what prevented him from doing so, and leave it to, the court to say, from the facts stated, whether he had such knowledge or used due diligence to obtain it.</p> <p>7. Same — Newly Discovered Evidence — Necessity for Witness’ Affidavit.</p> <p>On an application for a new trial, to admit after discovered evidence, the affidavit of the new witness, showing what he will testify to, must be produced, or a good excuse shown for its absence.</p>

<p>1. Taxation- — Assessment List — Tax Deed — 'Validity.</p> <p>In an assessment and sale list for taxes in the surnames of two joint owners, as “Cofran & McGraw”, the mere omission of their Christian names does not render a deed under a tax sale void.</p> <p>2. Same — Assessment—Certain in Description. ■</p> <p>In case of separate ownership of minerals an assessment and sale for taxes of “Mineral Rights” in a tract of land is a sufficient description of the ownership of the property in such minerals and such description does not render a, tax deed void because of uncertainty in description.</p> <p>3. Same — Mineral Rights — Payment of Taxes by Surface Owner.</p> <p>Payment of taxes on a tract of land by the surface owner is not payment of taxes on minerals in it owned by another person and separately assessed with taxes in the name of the owner of the minerals.</p>

<p>1. Rah-koads — Crossing with Other Roads — Suit to Determine— Parties.</p> <p>In a suit pursuant to Code 1906, ch. 52, § 11, for decree fixing the crossing of one railroad by another, the holders of the mortgage bonds of the defendant railroad are not necessary parties when the trustees in the mortgage are made parties.</p> <p>2. Same — Crossing with Other Roads — Suit to Establish — Pleading.</p> <p>An allegation of the bill in such suit which merely states that certain original mortgage trustees are dead and that defendant trustees have been appointed in their stead contains sufficient particularity as to the fact.</p> <p>3. Same — Crossings—Action to Establish — Evidence.</p> <p>If the proposed crossing is within a city, it is not incumbent upon the plaintiff company to show that the municipal government has specifieially granted permission to make the same, when a franchise from the city for the construction of plaintiffs railroad at the place of the crossing is shown.</p> <p>4. Same — Crossings—Steam and Electric Roads.</p> <p>' An electric railroad may be decreed the right to cross a steam railroad. The physical character of the railroad seeking the crossing, or that of the railroad proposed to be crossed, has nothing to do with the applicability of the statute.</p> <p>5. Same — Grade Grossings.</p> <p>Grade crossings are not prohibited but are authorized by the law of this state. Where the facts warrant a crossing at grade, its construction and operation may be decreed.</p>

<p>1. Taxation — Two Sales for Taxes — Right of First Purchaser.</p> <p>If land be sold twice at tbe same tax sale for two several years delinquency of taxes assessed in tbe names of two successive owners, and an individual buys under tbe sale made to satisfy tbe first delinquency and, after a year, obtains a deed and records it, be will have title against tbe state who buys under tbe sale made to satisfy tbe second delinquency.</p> <p>2. Same — Sale—Necessary Parties — Unknown Claimant.</p> <p>A claimant of land that is proceeded against as tbe state’s land under chapter 105 of the Code, who is known or whose claim to the land can he ascertained by the use of reasonable diligence, should be made a party to the bill, eo nomine, and, if a resident of the state, should be served with process.</p> <p>8. Same — Sale—Neee-ssary Party — No Nomine.</p> <p>It is error to proceed against such claimant under the general designation in the bill of “unknown claimants,” and any decree that may be pronounced against him, witnour nis appearance in the cause, will be void as to him for want of jurisdiction and may be collaterally assailed.</p>

<p>1. Set-Off and Counter Claim — Recoupment—Breach of Contract.</p> <p>Defendant can not recoup damages if they depend on the breach of a contract different from, and independent of, the one on which suit is brought.</p> <p>2. Same — Recoupment Contracts.</p> <p>In an action by plaintiff for the price of goods sold and delivered, defendant can not recoup damages for plaintiff’s refusal to accept other goods sold to plaintiff by defendant under a separate and independent contract.</p> <p>3. Evidence — Parol Evidence — Written Contract.</p> <p>Parol testimony is inadmissible to prove an unwritten agreement made at the time of, or prior to, a written agreement, for the purpose of varying or contradicting the terms of the latter.</p>

<p>1. Judicial Sales — Confirmation—Cure oí Irregularities■ — Mistake • in Amount of Lana Sold — Remedy of Purchaser.</p> <p>If commissioners authorized by a court decree to make sale of land decreed to be sold undertake without specific authority given to sell the land by the acre, and the sale is so reported to and confirmed by the court, such confirmation will cure any irregularities of the commissioners in malting such sale, and if by mistake resulting from the actions ■ of court and commissioners less land be sold than was bid for and supposed to be sold the purchaser will be entitled to a proportionate abatement of the purchase money.</p> <p>2. Same — Mistakes in Am,ount of Land Sold — Remedy of Purchaser.</p> <p>Such relief may be obtained by the purchaser upon petition filed in the cause, by way of defense on a rule to show cause why the land should not be resold to pay the balance of pur-olíase money, or by way of defense when sued on the purchase money notes, or by any other appropriate remedy.</p> <p>3. Same — Oaveat Emptor — Application of Rule.,</p> <p>The rule oaveat emptor does not apply to mistakes in the quantity of land sold by the acre at a judicial sale, as it does to defects of title.</p> <p>'4. Same — Mista.be in Amount of Land Sold — Laches.</p> <p>Nor as a general rule will the rule of laches be applied to a purchaser at such judicial sale, if no equities have intervened and the rights of no one will be injuriously affected by a proportionate abatement of the purchase money, so long at least as the purchaser still retains in his hands, unpaid, sufficient of the purchase money out of which such abatement can be made.</p> <p>5. Vendo» and Purchaser — Quantity of Land Sold — Allowance to Cover Errors in Survey.</p> <p>The arbitrary rule of allowing five per cent, to cover inaccuracies reasonably imputable to variations of instruments and small errors in surveys, referred to in W. M. cG M. Go. v. Peytona C. 0. Co., 8 W. Va. 406, 437, and recognized in Pratt v. Bowman, 37 W. Va. 715, 721, is inapplicable to sale by the acre of valuable farming lands. In such cases only such allowance should be made as, considering the inequality of the ground and other obstacles hindering an accurate survey, may reasonably be imputable to such variations of instruments and small errors in surveys.</p>

<p>Error to Circuit' Court, Greenbrier County.</p> <p>Action by Cora McGlamery and others against James W. .Jackson. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Partition — Title—Ouster—Between Tenants in Common.</p> <p>The defense of an ouster between tenants in common, effected by the possession of a stranger under a contract of purchase from one of the co-tenants, does not present a question of title of which a court of equity cannot take cognizance on á .bill for partition of the land.</p> <p>2. Acknowledgment — By Married Woman.</p> <p>A married woman cannot divest herself of legal or equitable title to land, otherwise than by a deed or contract, acknowledged in the manner prescribed by the statute.</p> <p>3. Specific Performance — Proceedings—Sufficiency of Evidence.</p> <p>To sustain a-demand in equity for specific performance of an oral contract of purchase of land, the evidence must be clear, full and free from suspicion.</p> <p>4. . Same — Contracts Enforceable — Contract for Purchase of Land— Completeness.</p> <p>To be enforcible in equity, a contract of purchase of land must be complete, fixing the price and terms as well as the identity if the land.</p> <p>5. Joint Tenancy — Tenancy in Common — Adverse Possession— Ouster Between Co-Tenants.</p> <p>An ouster between joint tenants, tenants in common or co-parceners may be effected by open, notorious and exclusive possession of the land by a stranger, under a deed or an executory contract of sale, executed by one of the co-tenants to such stranger, purporting to convey or sell the whole thereof to the latter.</p> <p>6. Same.</p> <p>Mere execution and delivery of such deed or contract is not of itself sufficient to work an ouster. To it there must be 'added express actual notice of the adverse claim and possession, or open, notorious, exclusive and hostile possession of the land by the grantee or vendee of which the true owner in cotenancy must take notice, and inquire by what right such dominion is exercised.</p> <p>7. Adverse Póssession — Possession of Tenant.</p> <p>If, when such vendee secures his deed or contract, a tenant is in possession of the land, holding under the true owners, and continues to remain thereon, under an agreement of attornment to the purchaser, of which any true owner has no-notice, the possession of the vendee hy such tenant is not adverse to such owner, hut his possession becomes adverse from the date of the removal of such tenant from the land, if he himself openly uses it or substitutes new tenants thereon.</p> <p>8. SAME.</p> <p>In such, case, the ouster is effected by the combined action .of the vendor and vendee, but,-in law, the vendor may be regarded as the real actor and the title under which the estate was held in common as his. color of title, of which the vendee may avail himself as a claimant under it'.</p> <p>9. Partition — Title in Common Source — Presumption.</p> <p>When all the parties to a suit for partition claim title from a common source, title in such common source is conclusively presumed for the purpose of the suit, though no deed or other muniment of such title has been introduced as evidence or is known to exist.</p> <p>10. Limitation on Actions — Computation of Period — Disabilities— Infancy.</p> <p>The running of the statute of limitations against a person is not. interrupted by his death, and continues to run against his heirs, though they be infants, and, in such ease, the heirs are not within the saving clause of said statute.</p> <p>11. Same — Computation of Period — Disabilities—Infancy—Burden of Proof.</p> <p>The disability of infancy at the date of the accrual of a right of action must be shown by the party claiming the benefit thereof. To prevent the bar of the statute of limitations, an infant must show that the right of action accrued to him, while he was under such disability, and therefore, that it did not begin to run against his ancestor, if he claims the property in controversy hy inheritance.</p> <p>12. SAME — Computation of Period — Disabilities—Infancy—Co-Ten* ants.</p> <p>The disability of infancy on the part of one or more tenants in common or coparceners, does not avail their cotenants who, though once under the like disability, have failed to sue for the recovery of their interests in the land within five years after the attainment of their respective majorities. Bach is barred by the lapse of said period.</p> <p>13. Partition — Disclaimer of Co-Tenant — Effect on Subsequent Partition.</p> <p>A disclaimer, filed by an heir to an estate, in a suit for parti- . tion of the real estate of the ancestor, acknowledging advance-meats to the extent of his full share of the estate in the life time of the latter, followed by a voluntary partition of a portion of the land in which those participating in it apportioned, assumed and paid'indebtedness of the estate, precludes such heir and his assigns from participation in a subsequent partition of the residue of the lands.</p>

<p>1. Commence — Interstate Commerce — Schedule of Bates — Jurisdiction of State Court.</p> <p>A court of equity of this state has no jurisdiction to enjoin a railroad company engaged in interstate transportation from filing with the Interstate Commerce Commission a schedule of its rates for transportation of coal from a point in this state to a point in another state, on the ground that such rates are unreasonable, unfair and discriminatory.-</p> <p>2. Same — Interstate Commerce — Power of Interstate Commerce Commission.</p> <p>It is the exclusive power of-the Interstate Commerce Commission, in the first instance, to pass on the fairness and reasonableness of rates contained in the schedule of rates fixed by an interstate carrier on articles transported in interestate commerce.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by Gory Hogg against R. M. McGuffin and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Carkieks — Injury to Passenger on Platform, — Negligence.</p> <p>It is negligence in a passenger, under ordinary circumstances, 'to stand upon an open platform of a rapidly moving railroad car. If one voluntarily and unnecessarily takes such position and is injured in it lie cannot recover damages.</p> <p>2. Same — Passenger Riding an Platform — Negligence.</p> <p>To ride on a car platform is not always a negligent act. If the train is so crowded that one cannot reasonably enter a ear, it is not negligent to ride on the platform when the carrier acquiesces in the use of such accommodations by collecting fare for the same or some other indicative act.</p> <p>3. Same — Carriage of Passengers — Duty Towards Passenger Riding on Platform.</p> <p>The carrier owes to a passenger unvoluntarily, necessarily and rightfully riding on the platform the high degree of care commensurate with the circumstances and its act m undertaking to carry him there.</p> <p>4. Same — Injury to Passenger on Platform — Negligence.</p> <p>Injury to a passenger while excusably riding on the platform because of the overcrowding of the train usually constitutes a prima facie case of negligence on the part of the carrier.</p> <p>5. Same — Carriage of Passengers — Duty Towards Passenger Riding on Platform.</p> <p>The liability of the carrier to one excusably riding on the platform is not absolute. If it used reasonable diligence to provide cars for his safe carriage, and, with fair excuse for failing to provide them, exercised the increased care demanded by the passenger’s enforced position on the platform, it is not liable for injury to him.</p> <p>6. Same — Carriage of Passengers — Injury to Passenger on Platform — -Liability of Carrier.</p> <p>If a railroad company negligently and unreasonably fails to provide sufficient cars so that passengers are compelled, to ride . on the platforms and then accepts passengers for carriage in such hazardous places, it is liable for damages to one injured therein, unless he has contributed to the injury by negligence on his pari.</p> <p>7. Same — Liability of Carrier for Conductor’s Acts.</p> <p>The conductor of a train-represents the railroad company in relation to the transportation of passengers on his train, and his acts in receiving and carrying passengers on the platforms when the train is overcrowded binds the company.</p> <p>8. Tjsiai. — Direction of Verdict.</p> <p>The court cannot properly direct a verdict in a case turning on a conflict of evidence which makes the material facts so doubtful that a verdict for either party would be sustained.</p> <p>9. Release — Release Executed Through Fraud.</p> <p>A written release or acquitance of a claim for personal injury will not sustain a plea of accord and satisfaction in the premises if its execution was obtained by deception and fraud.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by Bettie Kennedy against tbe Merchants’ & Miners’ Bank and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by G-. C. Mitchell, administrator,-against the United States Coal & Coke Company. Yerdict for plaintiff. From an order setting it aside, he brings error.</p>

<p>1. Evidence — Parol Evidence — Contradicting Written Contract.</p> <p>A contract when reduced to writing becomes the repository of the common intentions of the parties, all prior or cotem-poraneous negotiations becoming merged therein,' and it can not be contradicted by extrinsic evidence.</p> <p>2. Cancellation- of ' Instruments — Pleading—Offer to Restore Benefits.</p> <p>A bill to cancel a contract for fraud in its procurement should as a general rule allege plaintiff’s willingness and ability to do so, and tender to defendants all property and rights derived under the contract.</p> <p>3. Same — Fraudulent Representations — Pleading.</p> <p>As a general rule a bill to cancel a contract for fraud in its procurement should specifically allege the facts constituting the fraud; and where false representations are relied on such representations must not only be averred, but it must also be alleged that they were in fact false, were relied on by plaintiff and that plaintiff did not ¡know the falsity thereof, and was injured thereby.</p> <p>4. Equity — Amendment to Bill — Dismissal.</p> <p>Where a good case for relief is shown, hy the evidence hut the facts are not sufficiently pleaded in the hill, the court should not dismiss the hill without first giving plaintiff an opportunity to amend.</p>

Q. Barker and others, partners, as the Kana-wha Hardwood Company^, against Samuel Stephenson and others. Judgment for defendants, and plaintiffs bring.error.

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Jacob M. Ludwick against John W. Johnson and others. Decree for complainant, and certain defendants appeal.</p>

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

<p>Intoxicating Liquors — Illegal Sale — 'Nonresidents—Soliciting Orders.</p> <p>For syllabus see State v. Miller, 66 W. Va. 436 (66 S. E. 522).</p>

<p>1. Equity — Bill of Review — Limitations.</p> <p>The limitation for a bill of review from a decree made before chapter 40, Acts of 1909, took effect, reducing the limitation to one year, is three years.</p> <p>2. Vendor and Purchaser — Vendor’s Lien — Enforcement—Parties.</p> <p>■ In a suit in equity to enforce a lien for purchase money reserved in a conveyance Cf land, persons not parties to the conveyance, between whom and its parties there is no equity, and who claim title adversary to that of the parties to such conveyance, cannot be made parties to such suit, and their rights ^ cannot be adjudicated against them in it.</p>

<p>1. Pleading — Overruling Demurrer — Leave to Reply.</p> <p>When a demurrer t.o a plea is overruled, the plaintiff cannot reply in point- of fact unless lie withdraws the demurrer; hut leave to withdraw the demurrer will he conceded as of course and answer in point of fact then allowed.</p> <p>2. Same — Demurrer—Demurrer to Plea. — Withdrawal—Reply.</p> <p>Though a demurrer >to a plea is not formally withdrawn after it is overruled, the defendant will he held to. a recognition of its implied withdrawal if he permits an issue of fact to he joined hy replication to the plea without objection on his part.</p> <p>3. Municipal Corporations — Expenditure of Current Revenues. — ■ ‘‘Contract Debts.”</p> <p>A town may expend its current revenues and accrued funds and may make contracts to that end. To do so is not to contract debts within the meaning of the constitutional inhibition.</p> <p>4. Same — Contracts—Validity.</p> <p>If the contracts and engagements of a municipal corporation do not overreach the dependable current resources for which provision exists at the time the contracts and engagements are assumed, no lawful objections to them can be interposed, however great the indebtedness of the municipality may be.</p> <p>5. Same — Invalidity—Excess of 'Indebtedness.</p> <p>A party to assert successfully the invalidity of a contract made by a municipal corporation, on the ground that it has' assumed an indebtedness beyond that which it could legally assume by the contract, must establish by clear evidence all facts necessary to show the alleged invalidity..</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>W. T. Collins was convicted of an illegal sale of liquor, and brings error.</p>

<p>1. Criminal Law — Writ of Error — Necessity of Exception.</p> <p>If the error complained of be, that the final judgment is in excess of the verdict, it is matter of record and may be re- . viewed on writ of error, without any formal exception being taken to the action of the trial court. In such case it is not necessary that a motion to set aside the verdict should have been overruled, and an exception taken, in order to entitle the party complaining to a writ of error.</p> <p>2. Same — Verdict—Sufficiency.</p> <p>The verdict of a jury in a criminal case should he read in connection with the indictment, and,- if the meaning of the verdict is thus made certain, it is sufficiently definite.</p> <p>3. Homicide — “Assault” with Intent to Kill — Verdict.</p> <p>Upon an indictment for feloniously, maliciously and unlawfully beating and wounding, with a dangerous weapon called a club, with intent to maim, disfigure, disable and kill, the jury returned the following verdict: “We, the jury, find the defendant, Tonio Arbruzino, not guilty of the felonious and malicious assault charged in the within indictment with the intent there charged, but we do find him guilty of the unlawful assault therein charged with the intent therein also charged.”</p> <p>Held. That the word “assault” in the verdict refers to the beating and wounding charged in the indictment, and does not mean the technical and common law offence of assault.</p>

<p>1. INTOXICATING Liquoes — Illegal Sales — Manager of Social Glub.</p> <p>The manager of a social cluh chartered and organized under and pursuant to section 120a, chapter 32, Code Supplement, 1907, with license regularly obtained from the county clerk, and payment of taxes thereon as assessed by such clerk, as provided by said section, is not liable to indictment for selling intoxicating liquors to a member of such club.</p> <p>2. Same — License—Social Clubs.</p> <p>Such social club, having obtained such license and paid the taxes assessed thereon, is not required by section 1, chapter 32, Code Supplement, 1907, as a condition precedent to selling or dispensing intoxicating liquors to its members, to also obtain a state license from the county court, or from the council of a municipality, where such club is located.</p> <p>3. Same — License—“To Keep Said Glub.”</p> <p>A certificate of license “to keep said club,” regularly issued by a clerk of the county court to such social club, as provided by said section 120a, with assessment and payment of taxes thereon as provided thereby, constitutes a valid license to sell and dispense intoxicating liquors to members of such club, though such certificate does not on its face specifically give right to sell.</p> <p>4. Same — Social Clubs — Legal Sales — Evidence.</p> <p>ft is error for the court on the trial of an indictment, charging the manager of such a social club, with selling intoxicating liquors without a state license therefor, to exclude from the jury its charter, license, minutes of stockholders and board of directors, and other documents relating t,o the organization and management of such club, and the application for and membership tberein of the person to whom it is alleged illegal sale® were made.</p> <p>5. Same — Illegal Sales — Social Clubs — Adjudication of Bona Fides of Organisation.</p> <p>The remedy by complaint to the circuit court, or a judge thereof in vacation, and notice thereof to such club, as provided by said section 120a, for obtaining an adjudication, tnat such club is being or has been conducted for the purpose of violating or evading the laws of the state regulating the licensing and sale of intoxicating liquors, is exclusive, and the question of the dona filies of such organization can not prior to such adjudication and on the trial of an indictment of the manager of such club for alleged illegal sales to members thereof without a state license therefor, he determined by the court or submitted to the jury.</p>

James A. Martin was found not guilty of an illegal sale of liquors. From a judgment awarding a new trial, defendant brings error.

<p>1.. Criminal Law — Presence of Accused — Evidence.</p> <p>An order in. a criminal case, reciting an appearance by the prisoner in discharge of his recognizance and an announcement of his readiness for trial, suffices to show his presence in court in his own proper person at the trial.</p> <p>2. Same — Trial—Assistance of Counsel.</p> <p>The clause of section 14 of Article III of the Constitution, providing that, in the trial of criminal cases, the accused “shall have the assistance of counsel,’’ is permissive and conditional upon the pleasure of the accused, in its application to the conduct of the trial; and, to make a conviction valid, the record need not affirmative show the prisoner had the assistance of counsel.</p> <p>3. Same — Appeal—Bills of Exception — Record.</p> <p>Though bills of exception be settled and signed in due time, they are not parts of the. record, unless made so by a certificate or an order, entered upon the record.</p>

<p>1.' Homicide — Assault Willi Intent to Kill — Indictment.</p> <p>An indictment for malicious cutting and wounding, with, intent to maim, disfigure and kill, need not specify the instrument with which the injury was inflicted.</p> <p>2. Same — Assault With Intent to Kill — '“Wound.”</p> <p>To constitute a wound, within the meaning of sec. 9, ch. 144, Code 1906, an injury must have been inflicted with a weapon, other-than any of those with which the human body is provided by nature, and must include a complete parting or solution of the external or internal skin.</p> <p>8. Same; — Assault With Intent to Kill — Indictment.</p> <p>Though said statute makes it a felony for a person maliciously to cause another bodily- injury by any means, with intent to maim, disfigure or kill him, an indictment, charging only malicious cutting and wounding with such intent, is not broad enough to let in proof of such injury, inflicted otherwise than by cutting or wounding'.</p> <p>4. Same.</p> <p>An indictment for maliciously or unlawfully causing’ bodily injury otherwise than by shooting, stabbing, cutting or wounding should specify the means by which the injury was caused.</p> <p>5. CbimiNal Law — Trial—Presence of Accused — Presumptions.</p> <p>The presumption of the continuance of a fact or state of things, shown to exist, applies to a record, showing the presence of a prisoner in court at the commencement of each day’s proceedings in the trial.</p> <p>6. Same — Appeal—Objections to Evidence.</p> <p>Admission of hearsay evidence, without objection and exception, affords no ground for complaint in the appellate court.</p> <p>7. Same — Appeal and Error — Harmless Error.</p> <p>Error in sustaining an objection to a proper question is cured by admitting an answer to another question, covering the same subject matter.</p>

<p>1. CRIMINAL Law — Bill of Exceptions — Identification.</p> <p>For identification of a bill of exceptions as one made a part of a record by an -order, it is not necessary that it bear any number, letter or peculiar mark, or that the order refer to it as bearing a number, letter or mark, if the substance of the bill and the descriptive matter, found therein, are such as leave no room for reasonable doubt that the paper is the one referred to in the order,</p> <p>2. Same — Plea of Guilty — Leave to Withdraw.</p> <p>-In the absence of any controling fact or. circumstance, rendering it manifestly unjust to do so, the trial court may refuse leave to withdraw a plea of guilty of murder of the first degree, and enter, in lieu thereof, a plea of not guilty.</p> <p>g. Same — Plea of Guilty — Leave to Withdraw — Refusal.</p> <p>To make the action of the court, in doing so, an abuse of its discretionary power, it must appear that the plea was entered under some mistake, misapprehension, compulsion or inducement, or circumstance, working injustice.</p> <p>4. Same — Trial—Plea of Guilty — Withdrawal—Refusal.</p> <p>That' the plea was entered under a mere surmise or conjecture of the prisoner or his attorney or both that, owing to the known temperament of a special judge, sitting at the time of the entry thereof, the punishment would he lighter than that anticipated from the regular judge, who returned to the bench to render judgment on the plea and fix the penalty, is not sufficient to deprive the court of its discretionary power to- refuse such leave.</p> <p>5. Judges — Disqualification—Criminal Law.</p> <p>Such regular judge is not disqualified to render judgment.on such plea and determine the penalty, by reason of his having derived impressions, unfavorable to the accused, from conversations had with such special judge and the witnesses, and previously pronounced a sentence of death upon him, erroneous ánd reversed because of his failure to hear the witnesses regularly in the presence of the prisoner, for thel enlightenment of his conscience and judgment in fixing the punishment.</p> <p>6. Same — Disqualification to Sentence Prisoner.</p> <p>In. determining whether to sentence a prisoner to life imprisonment or death, upon his plea of guilty of first degree murder, thfe court is not limited or bound to an exact finding as upon an issue of fact. It exercises a discretionary power, conferred upon it by a statute, wherefore the judge, need not possess the qualifications of jurors, trying the issue upon a plea of not guilty.</p>

<p>Intoxicating Liquoes — Illegal Sale — Invalid License.</p> <p>A. license to sell intoxicating liquors granted by a county court, upon a petition filed witfi. its clerk less than thirty days before the day for hearing it, as required-by Code 1906, cb. 32, sec. 12,. is granted without jurisdiction, is void,, and may be collaterally attacked upon trial of an indictment for selling without license, and is no defense.</p>

Bill by J. Garland Hurst, Sheriff, as administrator with the wall annexed of David Crawford deceased, against W. F. Turner’s administrator and others. Decree ior defendants, and- plaintiff appeals.

Bill by the heirs of Peter Tennant against A. E. Fretts and others. Decree for complainants, and the mentioned defendant appeals.

<p>1. CARRIER — Relation Between Passenger and Carrier.</p> <p>The relation of carrier and passenger does not terminate merely by the act of the passenger in alighting from the car at his destination. It continues until a reasonable time for the passenger to leave the railway premises has elapsed.</p> <p>2. Same — Assault on Passengers — Justification.</p> <p>Provocation by insulting words alone does not justify an assault upon a passenger by the conductor.</p> <p>3. Same — Assault on Passenger — Exemplary Damages.</p> <p>Exemplary damages are allowable in an action against a railway company for wilful injury inflicted by the conductor upon a passenger without lawful justification.</p>

Action by tbe State, for the Use of J. V. Tully, against A. T. Taylor and others. Judgment for plaintiff, and defendants bring error.

<p>1. Specific Performance — Unilatral Contracts — Contract for Sale of Land- Signed Only 5y Purchaser.</p> <p>As an exception to the general rule, a contract for the sale of land, signed hy the vendee only, may in a proper case he specifically enforced at the suit of the vendor.</p> <p>2. Frauds, Statute of — Authority of Agent to Sell Land — Necessity for Writing.</p> <p>If an agent he authorized to sell land it is not necessary that his authority to sell he in writing,</p> <p>3. Mines and Minerals — Sales.</p> <p>If the principal in ratifying and approving a contract by his agent, for the sale and purchase of a certain vein or stratum of coal and mining rights, modify'the terms thereof, and with knowledge thereof, the vendee finally accepts the contract without objection thereto he will he regarded as having' acceded to the modification and will he bound by the contract as modified.</p> <p>4. Specific Performance — Option Contracts — Construction.</p> <p>An option contract for the sale and purchase of a certain vein or stratum of coal and mining rights, calling for final acceptance hy a day specified, gave the vendee the right thereafter to arbitrarily object to the quality of the coal, the character or location of the surface, or to any title or conveyance, or to the terms of mining rights, and if the vendors were unable or unwilling to remove the same, the right to either party to rescind 'the sale. Held, that after such final acceptance hy the vendee, investigation of the coal, coal beds, surface and mining rights, and final election to take the property agreeably to the terms of the contract, and calling for abstract of title, deed, etc., the vendee thereby waived the right to interpose any such arbitrary objection, and that upon tender of abstracts of title and deed giving good title and reasonable and adequate mining rights, the vendor was entitled to specific execution of the contract.</p> <p>5. Same — Mutuality of Contract for Sale of Land.</p> <p>Where at the time of the contract for the sale and purchase of land the purchaser has knowledge of the location or the title, and that the vendor is not the owner, but represents the owner. as agent, and depends for performance of the contract on procuring the deed, the ratification and approval of the owners; and with tlie further knowledge that the vendor has procured such ratification, and that he and his principals are proceeding in good faith in the performance of the contract, there is no such lack of mutuality of contract as will excuse specific performance thereof by the vendee.</p> <p>6. Same — Contract for Sale of Minino Rights.</p> <p>When the vendee in such an option contract for the sale and purchase of coal and mining rights, after investigation of the character of the coal and mining rights as contemplated by the contract, notified the vendor in writing of his final election to take the property, waiving thereby the right to make such arbitrary objections thereto, and the right to rescind and cancel the contract, specific execution of the contract by him may be decreed, if the vendor, at the time when by the contract or the equity of the case he is required to do so, is able to convey a good title to the coal, and tenders a deed, granting the same and at least reasonable and adequate mining rights, specific performance . of the contract will be decreed, though the mining rights owned and appertaining to the coal under each tract described be not in all respects uniform.</p> <p>7. Mines axd Mixekals — Contract for Sale of Mining Rights— Rights of Purchaser.</p> <p>Where under such a contract the purchaser with knowledge of the character of the mining rights which the vendor owns and is able to convey finally elects to take the property, and said mining rights are reasonably adequate for the purposes of mining and removing the coal conveyed, and from co-terminous tracts, the purchaser may not, as a condition precedent to the execution of the contract, demand as mining rights the right to remove over, through and under the lands in which the coal conveyed is situated coal thereafter acquired by the purchaser; the right to make and maintain all necessary and desirable dumps, air-ways, haulage ways, and drain-ways through and upon the surface of the land and every part thereof; a covenant against liability for subsidence, or injuries occasioned by mining, removing, coking, manufacturing or carrying away the coal or products thereof; the grant of a perpetual easement of support and maintenance of support of the coal vein or stratum conveyed in its then natural condition or position; a covenant that in mining for oil or gas, wells Shall not be drilled except through the solid coal conveyed, and upon condition that the purchaser, his heirs .or assigns, shall be first paid a fair price for the coal, not less than one hundred feet square necessary to protect each well, the law of the contract giving and .protecting the purchaser in all such rights which under the contract he is entitled to demand.</p> <p>8. Vendor and Purchaser — Contract for Sale of Land — Incum-brance Readily Removable.</p> <p>A mere incumbrance on real estate which may readily he removed and discharged out of the purchase money is not a 'bar to specific execution of a contract for the sale and conveyance thereof.</p> <p>9. Specific Performance — Contract to Sell Land — Right of Vendor —Ability to Convey Title.</p> <p>If a vendor is able to make the stipulated title at the time when by the terms of his contract, or by the equities of the particular case, he is required to make conveyance, in order to entitle himself to the consideration, this is sufficient to entitle him to specific execution, though he may not have been in a situation to perform the contract literally at the time he brought his suit.</p> <p>10. Appeal and Error — Proceedings—Right to Title Reference.</p> <p>Though in a suit for specific performance, the general rule is that if there be doubt as to the title, or defendant request it, the court should order a title reference, nevertheless if the parties have taken all their evidence and submitted the cause to the court for final adjudication, without motion or request for such reference until after the court has pronounced its decision, and the facts proven are sufficient to show prima facie a good title in the plaintiff, the decree below will not be reversed here for alleged error in overruling defendant’s motion for such title reference, the motion then being too late.</p> <p>11. Depositions — Exceptions—Waiver.</p> <p>Exceptions to depositions recorded by the officer taking the same will, as a general rule, be regarded as waived, unless brought to the attention of the court at the hearing and the ruling of the court obtained thereon, and unless the evidence excepted to be wholly incompetent it may be given such probative effect as without such objections it may be legally entitled to have.</p> <p>12. Vendor and Purchaser — Contract to Convey Mineral Rights— Rights of Vendor to Interest.</p> <p>Where by the terms of a contract for the sale and purchase of a certain vein or stratum of coal, and mining rights, the purchaser is not let into possession of the property, except to make preliminary investigations and tests, and is not authorized to mine or operate the property except upon compliance with all the terms of the contract, by paying the purchase money and obtaining a deed, and by the terms of the contract the purchase money is payable only upon a tender of the deed, the purchaser is not in a suit against horn for specific performance chargeable with interest on the principal of the purchase money except from the time of the tender of a proper deed for the property.</p> <p>13. Same — Conveyance,</p> <p>An agreement by co-tenants to convey land by good and sufficient warranty deed, does not require either to warrant the title of the others. It is complied with if each maíces a separate deed for his moiety, or if all join in a deed in which each grantor warrants his share but not that of his co-grantors.</p> <p>14. Specific Performance — Parties.</p> <p>Where a vendor in his life time brings suit for specific performance of a contract for the sale of land, and tenders with his bill, or in the cause and pending the suit, his deed in execution of the contract, and dies before decree his heirs are not necessary parties to a valid decree of specific performance and delivery of the deed thus tendered, the deed of the vendor being sufficient to pass the title of the grantor, relating back to the date of such tender.</p> <p>(RobinsoN, President, Absent.)</p>

<p>1. UNLAWEUWENTRY AND DETAINER — SumVIOnS.</p> <p>The statute, section 1, chapter 89, Code 1906, provides for but one form of summons (declaration), and evidence of forcible entry by defendant, which is unlawful, is admissible thereunder, without specific allegation thereof.</p> <p>2. Same.</p> <p>Where in such action the defendant’s entry was forcible it is unlawful regardless of the question of right.</p> <p>3. Same.</p> <p>A case in which the acts and conduct of defendant in making an entry on land, as proven on the trial, were held to constitute a forcible and unlawful entry entitling the plaintiff to recover.</p>

Bill by Mansfield Headley against the Colonial Oil Company and others. Decree for complainant, and the Colonial Oil Company and certain other defendants appeal.

<p>Appeal and Error — Appellate Jurisdiction — Jurisdictional Amount.</p> <p>When it appears without conflict or doubt from the record, in a purely pecuniary action, that the sum for which plaintiff was entitled to judgment, if entitled at all, did not exceed one hundred dollars, a writ of error cannot lie to a denial of judgment ■ to him, even though he declared for a sum sufficient to call for appellate jurisdiction.</p>

<p>1. Deeds — Construction—Nature of Estate.</p> <p>A deed whereby the grantor, for a small money consideration and “a good and peaceable life maintenance,” bargains and conveys to his wife and infant children all his real and personal estate, but which contains no words of limitation, and which at common law would not have passed to the grantees a greater estate than one for the life of the grantor, will not now, by virtue of section 8, chapter 71, Code 1906, pass a fee simple estate if the contrary intention appears.</p> <p>2. Same — Reservations—Poioer to Convey.</p> <p>Where in such deed the grantor after the premises, and in express terms retains the legal title to the land granted, and in himself and wife, one of the said grantees, upon certain contingencies and conditions stipulated therein, the power to sell and convey said land, a subsequent deed by him and his wife to a third party, made in execution of the right and power so reserved, reciting the occurrence of said contingencies and conditions, will pass good title to the land to such third person, and operate as a defeasance of all right and title which vested immediately in the grantees in said former deed, or that on the death of the grantor but for the execution of such power might have vested in ‘them by virtue of the grant or by virtue of the subsequent provision thereof that, “the division of this deed, shall at the death of said T. K. Totten be made equal between his wife, and all of the children now surviving and those that may survive."</p> <p>3. Same — Construction.</p> <p>In the construction of such deeds the rules against repugnancy of terms and restraints upon alienations; applicable to deeds granting estates in fee simple have little, if any, application.</p>

<p>1. Appeal and Ekbok — Dismissal—Sufficiency of Motion.</p> <p>A motion to dismiss an appeal pending in an appellate court should he in writing and should state specifically the grounds therefor. The notice of such motion, however, is not necessarily the motion itself. If the ground stated therein he too general, yet if in the hriefs of counsel filed the grounds he specifically set forth, this will amount to a substantial compliance with the rule.</p> <p>2. Same — Dismissal—Searing on Motion — Questions Considered.</p> <p>On1 such motion to dismiss an appeal questions involving the merits thereof, or matters to be considered at the hearing cannot, as a general rule, be considered, nor such as require an examination of the whole appeal record.</p> <p>3. Same — Appealable Orders — Order Directing Receiver to Make Inventory.</p> <p>A decree or order made in a pending cause appointing a special receiver of defendant’s coal mining plant, directing him to malte" a complete inventory, and report to the court the advisability of continuing the operation thereof, is by virtue of clause seven, section, one, ch. 135, Code 1906, an appealable order, although such property be then in the possession of a special receiver appointed by another court, and it is provided in such order that the special receiver so appointed apply by petition to the court whose receiver has possession of the property for possession thereof, and that pending action on such petition he do not disturb the possession of the special receiver having such possession.</p> <p>4. Same — Dismissal—Grounds—Extinguishment of Controversy Pending Appeal.</p> <p>As many times decided this Court sits to redress wrongs and not to settle moot questions; and whenever it is made to appear that by time or other cause the matter in controversy has been extinguished pending the appeal, the appeal will be dismissed.</p> <p>5. Same — Dismissal—Hearingt</p> <p>The facts which are proper to be considered on a motion to dismiss a pending appeal may be shown by reference to the prior or subsequent proceedings in the cause, or by affidavit, or other legal and competent evidence.</p> <p>6. Receiveb — “Special Receiver” — Powers.</p> <p>A special receiver is simply an officer of the court and as such has no right even in the cause in which he is appointed, without leave of the court, to intermeddle in questions affecting the rights of the parties.</p> <p>7. Akpeal and Error — Right of Review — Special Receiver of Federal Court:</p> <p>The special receiver of a federal court, though authorized by that court, will not be entertained or heard in this Court upon an appeal by him from a decree pronounced by a circuit court of this state in a cause pending there, to which he was not a party and whose personal rights are in no way' involved or affected by the decree appealed from.</p>

<p>1. Intoxicating- Liquors--Illegal Sale by Agent — Liability of Saloon Keeper.</p> <p>An unlawful sale of intoxicating liquors made by the agent, or bartender, of a licensed saloon-keeper, at his place of business, is a sale by both, and the saloon-keeper, as well as his agent, is liable.</p> <p>2. Same — Unlaivful Sale — Nature of Offence.</p> <p>In such case the saloon-keeper can not escape liability on the ground that his agent made the unlawful sale without his knowledge and in violation of his express instructions. The unlawful sale constitutes the offence, and the seller’s motive is immaterial.</p> <p>3. Same — Illegal Sale to Minor.</p> <p>If a licensed saloon-keeper, or his agent, deliver intoxicating liquor to a minor and receive from him the money therefor under the belief, however induced, that the minor is buying as agent for another whose identity is unknown and is not disclosed, it constitutes a sale to the minor.</p>

<p>1. Unlawful Sale — Indictment—Duplicity.</p> <p>An indictment charging that defendant did unlawfully sell, offer and expose for sale, wine, porter, ale, beer and drinks of like nature, not then having' a state license therefor, is good under the statute, and not bad because of duplicity.</p> <p>2. Motion in Abeest of Judgment.</p> <p>Duplicity is not available on a motion in arrest of judgment.</p> <p>Evidence — Illegal or Incompetent Evidence.</p> <p>A motion to strike out all the evidence of a particular witness, or the whole of the evidence of one party, should not prevail, although it may contain some illegal or incompetent evidence, if it also contain other evidence proper to go to the jury. The motion in such case should be applied to the particular evidence regarded illegal or incompetent.</p> <p>4. Intoxicating Diquobs — Alleged Sales — Election.</p> <p>On the trial of one indicted for selling illegally intoxicating liquors, until required by motion of defendant to elect which sale it will rely on for conviction, the State may prove and rely on any sale made within one year next prior to the finding of the indictment.</p> <p>5. Ekrob in Instructions.</p> <p>Though there be error in instructions given on behalf of the prevailing party, yet the judgment will not for this reason be reversed if it appears that the same error was introduced into the record by instructions given at the instance of or was invited by the other party.</p> <p>6. Intoxicating Diquobs — Social Club — Sales by.</p> <p>On the trial of one indicted for selling illegally intoxicating liquors without a state license therefor, proof of a charter of incorporation issued to-defendant and others for a social club, as provided by chapter 32, section 120-a, Code Sup-. 1907, it being also proven that defendant made or .authorized such sales, or was concerned therein, will constitute no defense. To constitute good defense there must be proof also of regular organization under such charter, assessment and payment of the license taxes assessed, as prescribed by said section, and that the sales proven to have been made, were limited to regular members of such club.</p>

Application of W. D. Porter, executor, for the appointment of a trustee, to which John Marshall and others interposed objections. From a decree appointing a trustee, 0. S. Marshall appeals.

<p>1. Courts — Jurisdiction of Supreme Court.</p> <p>The Supreme Court of Appeals has jurisdiction of the writ of mandamus, though at the adoption of the constitution such writ did not apply to a subject matter to which it has since been made applicable by statute.</p> <p>2. Constitutional Law — Remedies—Potoer of Legislature.</p> <p>The legislature has power to formulate, prescribe, modify and alter remedies, so its action does not impair the obliga- ' tion of contracts or vested property rights.</p> <p>3. Courts — Jurisdiction of Supreme Court.</p> <p>Section 89 of chapter S' of the Code (1906) is not-contrary to the constitution, Art. VIII, section 8, in giving the Supreme Court of Appeals jurisdiction by mandamus to compel election officers to legally perform their duties.</p> <p>4. Constitutional Law — Jurisdiction—Interference with Political Parties.</p> <p>In absence of statute, courts do not exercise jurisdiction to interfere or control, in matters purely political, pertaining to the management and proceedings of a political party.</p> <p>5. Elections — Interference of Courts with Political Parties.</p> <p>When the state and congressional committees and a congressional convention and a state senatorial convention of a political party have had the claims of two contesting county executive committees to represent the party before them for decision, and have decided that one of them is, and the other is not, the true and legitimate county executive committee, the courts will not review such decisions, but will hold it conclusive in matters before the courts involving the question which is the lawful county executive committee.</p> <p>6. Same.</p> <p>It is the duty of a cíenle of a circuit court to appoint as a ballot commissioner to represent a political party on the board of ballot commissioners a person designated by the chairman of the county executive committee, when that particular committee has been held and recognized as the true and legitimate committee in contests between two competing committees, before the state and congressional committees and the congressional and • senatorial nominating Conventions, involving the right of such county committees to act for the party.</p> <p>7. Mandamus — Grounds.</p> <p>The clerk of a circuit court has not sole and final power to decide which of two persons designated by . the chairmen of two competing county executive committees of a political party for appointment as ballot commissioner; but his action is subject to review and control by the courts. He can be compelled by mandamus to appoint the proper person.</p> <p>[Poirr'ENiiARSER. Judge, absent.]</p>