Volume 68 — West Virginia Reports

<p>Error to Circuit Court, Wirt County.</p> <p>Action by the State, on the relation of the Citizen’s National. Bank, against R. B Graham and others. There was a directed verdict for defendants, and relator brings error.</p>

<p>1. Criminal Law — Writ of Error — Reservation of Grounds.</p> <p>Objection on the ground that ample time was not allowed the prisoner to prepare his defense at the trial, cannot be made upon appeal if the record does not show the denial of a request for time.</p> <p>2. Same — Writ of Error — Review—Evidence.</p> <p>When the record does not purport to contain all the evidence adduced at the trial, questions as to the admissibility or weight of evidence which must turn on an examination of evidence not made' a part of the record cannot be considered.</p> <p>2. Searches and Seizures — Criminal Law — Privilege of Accused.</p> <p>The act of intercepting a letter written by the prisoner, in the hands pf a jail-keeper, and using it as evidence against him, though it be incriminating, is not a violation of the constitutional provisions against unreasonable search and against compelling one to become a witness against himself.</p> <p>4. Criminal Law — Evidence—Admissions—Silence When Charged . With Crime.</p> <p>Unrefuted evidence of silence by one when .charged with a crime in his hearing by his co-indictee, though the party remaining silent be under arrest or in custody, is admissible for the consideration of the jury when the circumstances are such that an innocent man similarly situated would naturally speak in denial. .</p> <p>5. Same — New Trial — Newly Discovered Evidence — Necessity for Diligence.</p> <p>To warrant a new trial on the ground of after-discovered evidence, diligence to secure the evidence in the first instance must he shown.</p>

<p>1. Appeal and Error. — Review—Judgment on Trial by Court.</p> <p>A judgment upon a trial by the court in lieu of a jury will not he reversed because of the admission of improper evidence when the judgment is nevertheless legally warranted.</p> <p>2. Trial — Talcing Case from Jury — 'Waiver of Errors — Ruling as to ■ Exclusion of Evidence.</p> <p>' ' The defendant can take no advantage of a motion to exclude tlie plaintiff’s evidence if he introduces evidence after the ■ ¡motion is overruled.</p> <p>3. Continuance — Trial T>y Court — Hearing of Case at Different . Terms.</p> <p>When the court- acts at a trial in lieu of a jury it may properly hear a part of the case at one term and a part at a later term.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Bradford Noyes against Mary C. Caperton. Judgment for defendant and plaintiff brings error.</p>

<p>1. Divorce — Desertion—Sufficiency of Evidence.</p> <p>To justify a decree of divorce on the ground of desertion or abandonment without justifiable cause, the evidence thereof must be full and clear.</p> <p>2. Same — Desertion—Evidence.</p> <p>Desertion cannot be inferred from the fact that the parties do not live or cohabit together.</p> <p>S. Same — Desertion—“Justifiable Cause."</p> <p>Justifiable cause, which will excuse a husband or wife, from leaving the other, must be such as could be made the foundation of a divorce from bed and board.</p> <p>4. Same.</p> <p>The conduct of the one party, which will justify desertion by the other, must be of such a nature as is inconsistent with the marital relations, or to render cohabitation unsafe.</p> <p>5. Same — Desertion—Justifiable Cause — Evidence.</p> <p>A case in which the facts proven were held to he insufficient to constitute good grounds of desertion.</p> <p>6. Same — Desertion—Justifiable Cause — Refusal of Sexual Intercourse.</p> <p>Neither the refusal of sexual intercourse, nor the fact that the parties occupy separate houses or apartments, will alone constitute good grounds for desertion.</p> <p>7. Same- — From. Bed and Board — Permanent Alimony.</p> <p>It is error for a court, upon decreeing a divorce from bed and board, to vest the title to the husband’s real estate in fee in the wife as permanent alimony, unless there be special circumstances calling for such decree.</p> <p>8. Same — Permanent Alimony — Property Subject.</p> <p>The general rule is that the income of the husband, whether derived or to be derived from his personal exertions, or from permanent property, or from both, is the fund from which alimony is derived, and from which there should be a personal decree, the amount to be determined by the circumstances of each particular case.</p>

<p>1. Mandamus — Ground—Compelling Extension of Tax Levy.</p> <p>Mandamus will lie to compel a county assessor to extend a levy laid by a county court in the exercise of its general jurisdiction, unless the same has been judicially determined to be illegal.</p> <p>2. Judgment — Collateral Attack — Judgment Laying County Levy.</p> <p>A county court which lays a county levy is not a special tribunal established for that special purpose, hut for that purpose is a court of general jurisdiction; and its act in laying such levy, though not exercised in the usual from of judicial proceedings, is judicial in its nature, and cannot be attacked in any collateral proceeding.</p> <p>3. Same.</p> <p>Although the special bridge levy involved in this case was laid by the county court pursuant to section 2, chapter 9, Acts 1908, as amended by chapter 66, Acts 1909, and the rules and regulations prescribed thereby, ic was nevertheless an act done in the exercise of its general jurisdiction.</p> <p>4. Bridges — Levy—Special Bridge Tax — Statutory Provisions.</p> <p>The special bridge levy laid by the county court of Pleasants county in the year 1910, pursuant to said section 2, chapter 9, Acts 1908, as amended by chapter 66, Acts 1909, is not illegal and void because it laid no such levy in the years 1908 or 1909.</p> <p>5. -Statutes — Construction—Taxation.</p> <p>While the general rule is that statutes conferring powers of taxation should he construed with strictness, they should not be so strictly construed as to defeat the manifest purpose or intent thereof. All that this rule requires is that the statute be confined to such subjects or applications as are obviously within its terms and purposes.</p> <p>6. Bbidges- — Taxes—Levy—Construction of Statute.</p> <p>Applying this rule, the legislature by enacting said section 2, chapter 9, Acts 1908, as amended by chapter 66, Acts 1909, did not intend to limit the right to lay special bridge levies to those counties alone, which had laid such levies for 1908, or for 1909, but to prescribe a limit of time within which all counties, not otherwise disqualified by the act, might begin and continue the same.</p> <p>■7. Mandamus — Illegal Laying of Levy — Remedy of State Tax Commissioner.</p> <p>■ The remedy of the State Tax Commissioner in such cases, is not by instructions to the county assessor, to disregard a levy laid by a county court, but by some appropriate process, as by mandamus, or a like process in a court of competent jurisdiction.</p>

<p>Error to Circuit Court, Kanclolph County.</p> <p>• O. A. Miller was convicted of practicing dentistry without a license, and brings error.</p>

<p>Mandamus by the State, on relation of T. C. Townsend, State Tax .Commissioner, against the Board of Education of the School District of Parkersburg, and others.</p>

<p>Mandamus by M. Ii. Kelley and others, partners'as Kelley & Moyers, against E. L. Bowman, Clerk of the County Court of Mercer County.</p>

<p>1. Mandamus — Right to Remedy — Existence of Legal Duty.</p> <p>Under the charter of the city of Bluefield (Acts 1909, chapter 1) the county court of Mercer county has no jurisdiction oyer the subject of license to sell spirituous liquors in' that city, or within two miles of its limits. Therefore, after such license has been granted by the hoard of affairs of said city a mandamus does not lie to compel the county court to issue a certificate of the grant of license.</p>

<p>.1. Constitutional Law — Criminal Law — Due Process — Closing Saloons on Sunday.</p> <p>Sections 1 and 3 of chapter- 14, Acts Extra Session of 1908, closing saloons on Sunday, are not unconstitutional as imposing punishment cruel or unusual or disproportionate to the offence, or depriving of property without due process.</p> <p>'2. CIíiminai. Law — Power of Legislature — Creation of Crimes.</p> <p>The Legislature has power to create and defline crimes and fix their punishment, so only that such punishment is not cruel or unusual or disproportionate to the offence.</p> <p>3. Intoxicating Liquors — Regulation by Legislature.</p> <p>The Legislature has power to regulate and restrict the sale of intoxicating liquor, and to revoke license and close places where sold under it upon conviction of offenée against liquor law.</p>

<p>1. Indictment and Information — -Joinder of Offenses — Flection.</p> <p>If different counts in a felony indictment charge separate, and distinct offenses, and are inserted therein for the purpose of meeting the varying phases of evidence relative to the same ■ criminal transaction, the proscuting attorney will not be required to elect as to the count on which he will proceed to • - trial.</p> <p>2. Criminal Law — Connivance to Entrap Offenders — Effect.</p> <p>Where one offended against waives none of his rights, and. the offender alone is responsible for the criminal intent, the nature or quality of the offense will not he affected by the fact that the party offended against connived at the offense or assisted the offender for the purpose of entrapping and convicting him of the crime.</p> <p>3. Conspiracy — Conspiracy to Take Property by Force or Threat Against the Owner’s Consent — “Red Men's Act”.</p> <p>The so-called. Red Men’s Act, being Code 1906, chapter 148, sections 9 and 10, contemplates the taking of property by force or threats and against the owner’s consent, in pursuance of a conspiracy for the purpose, and applies to any taking of that character.</p> <p>4. Criminal Law — Writ of Error — Review■—Verdict-on Conflicting Evldenec.</p> <p>The verdict of a jury deduced from conflicting evidence and involving judgment as to the credibility of witnesses only will not be disturbed upon writ of error on the ground that it is contrary to the evidence.</p>

Action by James Wilkes against EL EL Bierne and others. There was a verdict for plaintiff, which was set aside, and a new trial awarded, and plaintiff brings error. .

<p>1. False Pbetenses- — Prosecution—Indictment.</p> <p>Under a count for simple larceny it is admissible to prove that the property was obtained by false pretense, with intent to defraud.</p> <p>2. Labceny — Obtaining Property by False Pretenses with Intent to Defraud — Elements of Defense.</p> <p>One who obtains possession of property upon the pretense of buying it for cash, at an agreed price, for the purpose of the payment of a just debt then due by the owner, equal to, or greater in amount than the price of the property, is not guilty of a statutory crime.</p> <p>3. Same.</p> <p>The procuring of the payment of a just oebt already due, by false pretenses, is not an indictable offense.</p>

Consolidated actions by the State- against A. F. Mathews and others, and by J. M. Richards and others ageinst Alma Montgomery and others. From the decree, Alma Montgomery and others appear.

<p>Error to Circuit Court, Randolph County.</p> <p>George W. Wamsley was convicted of obstructing his bar from view from the street on Sunday, and he brings error.</p>

George W. Wamsley was convicted of obstructing from plain view from-the streets his bar-room on-Sunday, and he brings error.

<p>Assault axd Battery — Self Defense — Resisting Arrest — Use of Peadly Weapon.</p> <p>If an attempted arrest be unlawful, the party sought to he arrested may use such reasonable force, proportioned to the Injury attempted upon him, as is necessary to effect his escape, but no more; and he can not do this by using or offering to use a deadly weapon, if he has no reason to apprehend a greater injury than a mere unlawful ■ arrest. Instructions to the jury, not so limited, were properly refused.</p>

<p>1. Elections — Proceedings Before State Central Committee of Political Party — Jurisdiction—Service of Notice of Process.</p> <p>In a proceeding instituted before a state central committee of a political party, begun by one of two contending county committees against the other, service of notice or process upon, the chairman and secretary of the contestee committte, should be regarded as sufficient to give such state central committee jurisdiction of the parties to the controversy.</p> <p>2. Same — Interference of Court With Political Parties — Jurisdiction.</p> <p>A case in which the principles announced in Boggess v. Buxton, cleric, 67 W. Ya. -, and particularly in points four and five of the syllabus, are approved and applied.</p> <p>3. Same — Interference of Court with. Proceedings of Political Party.</p> <p>Where there are two executive committees in a county, each claiming to be the regular and lawful county committee of a particular political party, and the question of such regularity has been submitted to and heard and detennined by the state central committee for such party, being the highest political authority of the party in the state, and after due notice served on the chairman and secretary of the contestee committee, no state convention intervening with authority to supervise or overrule it, the judgment and findings of such state committee that one of said contesting committees is, and the other is not, the regular and legally constituted county committee for such party, will be treated as conclusive of that matter when afterwards brought in question or involved in a judicial proceeding, whether such contestee committee appeared and submitted the merits of its claims to the judgment of such state committee or not.</p>

<p>1. Assignments — Assignment 'Without Recourse — Implied Warranty Consideration.</p> <p>In the transfer of a chose in action hy an assignment “without recourse”, .there is an implied warranty hy the assignor against loss to the assignee hy entire or partial failure of consideration.</p> <p>2. Same — Warranty Against Failure of Consideration — Breach—• Right of Action Against Remote Assignor.</p> <p>In case of a breach of such warranty, an assignee may sue a remote assignor, hy virtue of section 15 of chapter 99 of the Code of 1906.</p> <p>3. Limitation oe Actions — Action Against Assignor of Chose in Action — Partial Failure of Consideration — Implied Warranty.</p> <p>If the failure of consideration is partial only, causing loss of part of the debt, the statute of limitations does not begin to run, until such failure and the extent thereof have been determined judicially or otherwise.</p> <p>4. Assignments, — Liability of Assignor — Failure of Consideration of Chose in Action Assigned — Proximate Cause of Loss,</p> <p>Loss hy an assignee of a portion of a bond, given by a building and loan association, for the supposed ultimate value of certain of its shares, by reason of a great excess in the amount of the bond above the actual value of the shares, at the date of the execution thereof, is attributable to failure of consideration, in an action by the assignee against the assignor, not insolvency of the association, the latter being regarded in law as a mere remote and antecedent cause, superinducing the real, proximate cause of loss between the parties to the assignment.</p>

Prosecution of the Hotel McCreery Company for selling liquor without license. There was a judgment of acquittal, and the State brings error.

<p>• Apb.jsai, and Ebkok — Record—Bill of Exceptions — Certification.</p> <p>A bill of exceptions made in vacation must be certified by order duly entered of record as required by statute, otherwise it does not become a part of the record and avails nothing on writ of error.</p>

<p>1. Assault' and Batteky — Pleading—Defense of Son Assault Demesne.</p> <p>The defense of son assaxilt demesne must be pleaded specially, and cannot avail under the general issue, in an action for damages from an assault and battery.</p> <p>2. Same — Pleading—Matters in Justification.</p> <p>Matters in justification of an assault and battery, as defense to a suit for damages, must be pleaded specially. They cannot be given in evidence under the general issue.</p> <p>3. Same — Issues—Confession of Valid Defense.</p> <p>If a proper plea averring matters which legally justify the assault and battery made the basis of an action for damages is not replied to .or controverted, a valid defense stands confessed, and no issue exists.</p> <p>4. Judgment — On Trial of Issues — necessity for Issues.</p> <p>It is the established law of this state that a judgment based on trial without joinder of issue is erroneous and reversible from want of issue alone.</p>

<p>T. Witnesses— Compelling Accused to Criminate Himself — “Private Papers and Documents.”</p> <p>The written, prescriptions of practicing physicians on which a licensed druggist has made sales of intoxicating liquors, and which he has preserved in his possession, as the statute directs, are not his private' papers and documents, within the meaning of the constitutional guaranty against compulsory self crimination.</p> <p>2. Criminal Law — Compelling Accused to Criminate Himself— Public Documents.”</p> <p>Such prescriptions are quasi public documents, and the constitutional privilege is not violated by compelling a druggist, who stands indicted for unlawfully selling spirituous liquors, to produce them in court in order that they may be used as evidence against him on his trial.</p> <p>3. Intoxicating Liquors — Sale by Druggist — Prescription.</p> <p>A licensed druggist can not sell intoxicatng liquor to a practicing physician, except upon the written prescription of a practicing physician in good standing in his profession, and not of intemperate habits.</p> <p>4. Same.</p> <p>Such prescription must state substantially the following, viz: (1) the name of the person for whom prescribed; (2) the kind and quantity of liquor; (3) that it is absolutely necessary as a medicine for such person; and (4) that it is not to be used as a beverage.</p> <p>5. Same.</p> <p>A written order addressed to a licensed druggist and signed by a practicing physician, in the following words, viz: “Send me OJ spts. whiskey and oblige. 12-12-09,” is not a lawful prescription for intoxicating liquor, and a sale made thereon is unlawful.</p> <p>6. Same</p> <p>When a sale of intoxicating liquors is proven to have been made by a licensed druggist, it is presumed to have been unlawfully made, and the burden is then cast upon him to rebut such presumption.</p> <p>7. Criminal Law — Appeal—Harmless Error.</p> <p>The verdict of a jury will not be reversed on account of the admission of improper testimony or the giving of an erroneous instruction when it clearly appears that, if such evidence had been excluded and such instruction refused, the result could not thereby have been changed. Such error is not prejudicial.</p> <p>8. Same — Punishment—-Second Conviction — Pleading—Evidence.</p> <p>In order to warrant the imposition of the increased penalty imposed for a second conviction, by section 5 of chapter 32, .Code (1906), a former conviction must have been alleged in the indictment, and also proven. The court can not take judicial knowledge of a former conviction for the purpose of imposing the penalty prescribed for a second conviction.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by J. C. Thomas, administrator of one Stockton, against John Higgs and A. C. Calderwood. Judgment for plaintiff, and defendant Calderwood brings error.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill by Martha M. Sommers and others against William G. Bennett and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Stock — Warranty—Rescission■—.Grounds.</p> <p>An expression of opinion by the seller of shares of non-dividend bearing stock in a mining corporation, as to what dividends it will pay and tlie time of payment thereof, accompanied hy the general and indefinite statement that he had “inside information”, does not constitute a warranty, nor ground for rescission of the contract on the failure of the corporation to pay dividends on the stock within the time specified.</p> <p>2. Sales — Recission — Grounds — Misrepresentation of Fact Not Relied Upon.</p> <p>A misrepresentation of fact, made in the negotiation of a sale of personal property, not relied upon by the purchaser, constitutes no ground for rescission.</p> <p>3. Depositions — Sufficiency—Refusal of Witness to Answer Questions of Doubtful Relevancy and Materiality.</p> <p>The deposition of a party to a cause, examined as a witness, cannot he rejected merely because of his refusal to answer .questions, the relevancy and materiality of the subject matter of which are doubtful, when no process to compel him to answer the same has been taken or applied for. By submitting his cause, without having so tested the propriety of the questions, the opposite party waives the failure of duty on the part of the witness, if any there was.</p> <p>4. Appeal and Error — Assignments of Error — Presumption—Sufficiency of Notice of Talcing Depositions.</p> <p>An assignment of error, founded upon the overruling of an , objection to the reading of a deposition on the ground of insufficiency of the notice in respect to the time and place of the taking of the same, which objection admits notice thereof and is also opposed by record evidence thereof, is untenable in the absence of proof of uncertainty in respect to the time and place, shown by production of a copy of the notice or otherwise, it being presumed that its terms were reasonably certain.</p>

<p>1. Intoxicating Liquobs — Sale by Druggist — Indictment.</p> <p>An indictment against a druggist for the sale of intoxicating liquor is not had for not naming the person to whom the sale was made.</p> <p>2. Same.</p> <p>An indictment against a druggist for the sale of intoxicating liquor is not had for not specifying the day of sale, if it allege it to be within one year before the finding of the indictment.</p> <p>3. Same — Sale by Druggist — 'Necessity of Prescription.</p> <p>A' sale ’ of intoxicating liquor by a druggist to a physician, without the prescription required by law, is unlawful.</p>

<p>1. Intoxicating LiQTJOBS — Action for Civil Damages.</p> <p>In an action by a wife seeking damages for loss- to her means of support from the unlawful sale of intoxicating liquors to her husband, evidence as to the number and age of her children is irrelevant and not properly admissible.</p> <p>2. Appeal and Eekob — Irrelevant Evidence — Prejudicial Error.</p> <p>The admission of irrelevant testimony, likely to enhance damages, is reversible error unless it plainly appears that the verdict is- not in excess of the damages proved.</p> <p>3. Damages — Compensatory Damages — Evidence.</p> <p>In proving compensatory damages, the standard or measure by which the amount may be ascertained must be fixed with reasonable certainty, otherwise a verdict is not supported and must be set aside.</p> <p>4. New Trial — Excessive Damages — Remittitur.</p> <p>A verdict in excess of damages proved should be set aside, upon motion, except when the evidence affords a definite basis for a remittitur and the same is .entered.</p>

<p>Application by Philip Osborne for writ of mandamus to the County Court of Kanawha County and others to compel registration as a voter.</p>

<p>Error to Circuit Court, Barbour County.</p> <p>The Baltimore & Ohio Bailroad Company was convicted of obstructing a public road, and brings error.</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by Martha J. Duckworth against Floyd Stalnaker. Judgment for plaintiff, and defendant brings error.</p>

<p>Contracts — Sale of Lands — Unilateral Contract.</p> <p>The decree below is affirmed upon tbe rules and principles enunciated in Pollock v. Broolcover, 60 W. Va. 75, and other cases cited.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Henry 0. Layne against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by B. Shore against A. C. Lawrence and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1 ^ Pakties — Parties Plaintiff — Action on Contract.</p> <p>Except in a few instances of statutory creation, by way of exception, an action at law upon a contract must be prosecuted in the name of the party having the legal title or right involved. A person who has acquired an interest in a working contract, subsequent to the making thereof, is not a necessary party plaintiff in an action thereon.</p> <p>2. New Teial — Verdict—Sttfficiency of Evidence.</p> <p>If, upon the trial of an issue of fact, as to which there is conflicting oral testimony, undisputed and uncontroverted conduct on the part of one of the parties, and clearly established facts and circumstances, wholly inconsistent with his contentions and claims, founded upon the oral testimony in his favor, are disclosed by the evidence, the verdict should be rendered in accordance with the theory, sustained by such conduct, facts and circumstances; and, if the jury disregard them and render a verdict contrary thereto, the trial court should set it aside, notwithstanding the conflict in the oral testimony.</p> <p>3. CONTRACTS — Evidence.</p> <p>In an action upon a working contract between a railroad contractor and a sub-contractor lor excavation and grading, the oral evidence, is conflicting as to whether or not the subcontractor agreed to be bound by the estimates to be furnished by the engineers of the railway company; the sub-contractor adduces no testimony as to how the extent of his work and compensation should be determined, and neither makes nor causes any surveys or estimates to be made; for a period of several months, he acquiesces in statements rendered to him by the contractor from the monthly estimates furnished by the railway company’s engineers, and received his compensation accordingly. Held: That this conduct is controlling and precludes the jury from finding that he is not bound by. the. estimates of the engineers.</p> <p>4. Appeal and Eeroe — Review—Verdict.</p> <p>If, upon an issue of fact, the oral testimony is conflicting and free from the presence of controlling facts and circumstances, established or undisputed," a verdict founded thereon cannot be disturbed; since it turns alone upon the credibility of witnesses, lying, wholly within the province of the jury.</p> <p>5. Trial — Instructions.</p> <p>An instruction, authorizing a finding upon the theory of a right, founded upon a custom or usage of which the court cannot take judicial notice, is properly refused, in the absence of evidence, tending to prove its existence and adoption as a part of the contract, on which the action was brought</p> <p>6. Same — Conduct of Trial — Improper Argument.</p> <p>In an action by a sub-contractor for work on railroad construction, against the principal contractor, a statement in argument to the effect that the railway company is behind the defense, is improper and should be excluded by the trial court, in the absence of any provision in the contract between the railway company .and the contractor, making the former liable • for a recovery from the latter by a sub-contractor.</p>

<p>1. TeNastcy in CoanioN — Adverse Possession — Sale of Go-Tenant’s Interest.</p> <p>If one co-tenant mate an executory contract for sale to a stranger of the entire tract, not merely his interest, and the purchaser ■ entered into actual possession, this is an ouster of the other co-tenant, and such possession for the period of the statute of limitations will bar his rights, without other notice of adverse claim.</p> <p>2. ADteesb Possession — Color of Title.</p> <p>A quitclaim deed for land is good color of title on which to base adversary possession under the statute of limitations.</p> <p>3. Same — What Constitutes — Possession by Lessee.</p> <p>Actual possession in drilling and producing oil and gas by a lessee of land under the usual lease for production of oil and gas, is actual possession of the land by the lessor for adversary possession.</p> <p>(Mili.ee, Judge, absent.)</p>

<p>1. CeimiKal Law — Constitutional Law — Habitual Criminals.</p> <p>The provisions of Code 1906, chapter 165, sections 1 to 5 inclusive, pursuant to which, by an information in the circuit court of the county in which the penitentiary is situated, there may be imposed the additional sentence provided by law upon a convict who once or twice before ha's been convicted and sentenced to a penitentiary, are not violative of any constitutional guaranty.</p> <p>2. Same — Indictment and Information — necessity—Former Jeopardy.</p> <p>By proceedings under the statute mentioned, the convict is not held to answer for a crime so as to require presentment or indictment of a grand jury, nor is lie thereby twice put in jeopardy for an offense.</p>

<p>1. Banks and Banking — Deposit of GheoJc for Collection — Right' of Collecting Bank.</p> <p>If-the holder of a check indorses it, and deposits it for credit . and collection in another bank, the collecting bank, if the check is not paid, and it is without fault in forwarding' it for payment, has the right, on its return, to charge it back to its customer or recover the amount if he has in the mean time withdrawn the money.</p> <p>2. Same — Collection of Checks — Liability to Depositor.</p> <p>The general rule is that if a collecting bank forwards a check directly to the drawee bank, and by custom or agreement it is authorized to credit the collecting bank and remit, or settle at stated periods, its receipt of the check, debiting it to drawer and crediting it to the collecting bank constitutes payment, and renders the forwarding bank liable to its principal for the amount thereof.</p> <p>3. Same.</p> <p>Such would be the effect of the transaction whether there was sufficient cash in the bank at the moment to pay the check, or it be afterwards discovered that the check was an overdraft, and the drawee insolvent.</p> <p>4. Same — Forwarding Paper for Presentment — Time.</p> <p>The qualification of the general two day rule, allowed for forwarding paper for presentment is, that if there be more than one mail on the second day it need not go by the first, but, if there be but one, it must go by it, unless it leave or close at an unreasonably early hour. The whole, of the second day is not allowed, unless the last mail of that day goes at the close of business. Approving Lewis, Hubbard & Oo. v. Supply Go., 59 W. Va. 75.</p> <p>5. Same — Collection of Paper — Negligence.</p> <p>A collecting bank, knowing of tke depressed financial condition of tke debtor, is delinquent in its duty if it neglects to inform its customer of suck vital condition, and fails to take vigorous measures under tke circumstances to secure payment, and if loss occurs by its negligence to exercise tkat degree of skill, care and diligence wkick tke nature of its undertaking calls for, with reference to tke time, place and circumstances surrounding tke undertaking, it will incur liability to its principal for tke loss sustained.</p> <p>6. Same — Checks—Collection—Negligence.</p> <p>Tke general rule to wkick there are few, if any, exceptions, is that it is negligence for a collecting bank to send checks direct tc a drawee bank. The drawee bank who is to pay tke check is not a suitable agent for its collection.</p> <p>7. Same.</p> <p>And tke fact tkat the drawee bank is tke only bank at tke place where it is located constitutes no exception to the general rule.</p> <p>8. Same — Checks—Collection—Negligence—Effect of Custom.</p> <p>The custom of tke banks at the place where the collecting bank is located, of sending checks to a drawee bank, will not justify tke sending of a check directly to a drawee. Custom cannot justify negligence.</p> <p>9. Same — Checks—Collection—Negligence of Collecting Bank— Norm of Action.</p> <p>"Wkere a collecting bank is negligent in transmitting a check for collection, and in forwarding it to tke drawee bank, whereby such drawee, though in disregard of a special agreement, is enabled to debit the drawer of the check and credit tke collecting bank, and control of the check is lost by the collecting bank and -it is never returned to the customer, the latter may in an action of assumpsit, upon the common counts as for money had and received, recover the full amount of tke check.</p>

<p>1. I-ksubance — Life Insurance — Policies—Construction.</p> <p>The provision in a life insurance policy, making it null and void, without action on the part of the company, in case of failure of the insured to pay any premium, due thereunder, or any note, given for such premium, is intended for the benefit of the insurer and makes the policy voidable only on the happening of the contingency specified.</p> <p>2. Same — Life Insurance —■ Policies — Construction —- Forfeiture Clause. ■</p> <p>In such case, there is no failure or lack of consideration for the note, arising out of the default or conseguent thereon.</p>

Action by William E. Fowler and others against the Norfolk & Western Railway Company and others. From the judgment, both parties bring error.

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Charles Weeks against the Chesapeake & Ohio Railway Company and others. Erom ■ this judgment, defendants bring error.</p>

Action by R. W. Duncan against the Baltimore & Ohio Railroad Company. Judgment for plaintiff before a justice, and, from a judgment of the circuit court refusing petition for an appeal, defendant brings error.

<p>Appeal from Circuit Court, Ohio County. .</p> <p>Bill by William M. Clemans, Sheriff of Ohio County, against the Board of Education of the Independent School District of Wheeling and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court of Mercer County.</p> <p>Action by tbe City of Bluefield against C. A. Johnson. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Municipal Cohpokations — Paving Assessments' — Levy.</p> <p>A city can not, under section 34, chapter 47, Code 1906, levy a street ■paving tax upon the owners of lots, except upon the written petition of the1 owners of the greater amount of the frontage of lots abutting on such street, between two cross-streets, or between a cross-street and an alley, which lie next to each other. The city block is the unit of measurement in such case. **</p> <p>2. Same — Paving Assessment — Bill to Enforce.</p> <p>A bill by a city, brought under section 36, chapter 47, Code 1906, to enforce the lien of a special street paving tax, assessed under section 34 of said chapter, upon the lots abutting on the paved street, is demurrable if it does not allege, in effect, that the owners of the greater amount of the frontage of lots abutting on such street and lying between the same cross-streets, nearest together, or lying between a cross-street and alley, within the same city block, with the lots against which the lien is asserted, signed a written petition asking that the street be paved.</p>

<p>Municipal Assessments.</p> <p>Points of Syllabus in City of Fairmont v. Bishop, approved and applied.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by the City of Fairmont against H. M. Smith. Decree for defendant, and plaintiff appeals.</p>

<p>Municipal Assessments.</p> <p>Points of Syllabus in City of Fairmont v. Bishop, approved and applied.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill by the City of Fairmont against Lydia Criss. Decree for defendant, and plaintiff appeals.</p>

Action by William C. Bond and another against W. S. Taylor, the Harpers Perry Timber Company and others. Decree for -plaintiff, and defendant timber company appeals.

<p>Error to Circuit Court, Harrison County.</p> <p>Action by John Whalen against R. A. Manley. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Circuit Court, Morgan County.</p> <p>Action by the Uniontown Grocery Company .against W. E. Dawson. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Action by John B. Floyd against J. B. Duffy, administrator of Patrick Duffy, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Logs and Logging — Bale of Standing Timber — Sufficiency of</p> <p> Contract. </p> <p>A written contract selling standing trees nlust describe with legal certainty the land on which they stand, so that it may be identified.</p> <p>2. Deeds — Exceptions—Description.</p> <p>An exception in a deed conveying land must describe the thing excepted with legal certainty, so as to be ascertained, else the thing sought to be excepted will pass to the grantee.</p>

<p>1. Negligence — Pleading—Declaration.</p> <p>A declaration for damage from negligence must allege both the negligence and the loss from it, and state facts showing that the loss resulted from such negligence. It must show that the negligence was the proximate cause of the specified loss.</p> <p>2. Navigable Waters — Booms — Right- of Passage — Necessity of</p> <p> Demand. </p> <p>When a boom company has a “corker” stretched- across a stream to stop and secure logs, an owner of a log raft desiring to pass his raft through the boom must inform the operator of the boom of his desire of passage, and a declaration in an action for damage from such obstruction must aver that such passage was demanded.</p>

<p>1. Boundaries — Description—Undefined References to Adjoiners— Limitations try Galls for Monuments, Courses and Distances.</p> <p>In a lease for oil and gas producing' purposes, g'eneral location and description of the land by undefined references to adjoiners will be limited and controlled by particular calls for monuments, courses, and distances contained in a deed especially mentioned and pointed out in the description as one by which the same land was conveyed.</p> <p>2. Same — Description—Particular Description Prevailing Over Gen-erad One.</p> <p>As a general rule, a particular description prevails over a general one, and limits the application of the latter. That which is the more certain is entitled to the greater efficacy.</p> <p>3. Contracts — Construction.</p> <p>In the interpretation of instruments, force and effect must be given, if possible, to all the words employed. A part cannot be disregarded, unless other terms used are so-specific, clear, and convincing in contrary meaning as to prove it to be a false demonstration.</p> <p>4. Boundaries — Description—Statement of Quantity.</p> <p>A statement of quantity is never allowed to control defined and reliable calls by monuments, courses and distances. All other elements of description must lose their superior value through ambiguities and uncertainties before resort can be had to quantity.</p> <p>5. Same — Oil and Gas Leases — Construction—Premises Conveyed.</p> <p>When an oil and gas lease is clear and unambiguous in its terms, the usual clauses providing against drilling near to buildings and for free gas in a dwelling, riot asserting that such buildings are actually on the land leased, cannot tend to the overthrow and total disregard of the particular description of the premises adopted by the parties, though there are no buildings on the land embraced by that particular description and a dwelling and other buildings are on adjacent land to -which, the more general description alone might extend.</p> <p>Brannon, Judge, Absent.</p>

Consolidated actions by Lewis C. Conrad, administrator of Delilah Crouch, against Eli H. Crouch and others, and by Eli H. Crouch against Delia Crouch, Orris Crouch, and others. From the decree, Orris Crouch and others appeal.

<p>Appeal and Bebop — Jieview—Conflicting Evidence.</p> <p>The verdict of a jury found on conflicting oral evidence- alone will not be set aside and a new trial awarded the losing party, unless the evidence be so preponderating in his favor as to show bias, prejudice, corruption or undue influence on the part of ' the jury. ' '</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Action by J. N. Price against Eaehel Y. Price. From the decree, defendant appeals.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Letha Dolan and others against James Eskridge and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by W. B. Elswick against Elizabeth Deskins and others. Judgment for plaintiff, and defendant Elizabeth Deskins appeals.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by James Norman against the Virginia-Pocahontas Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Master and Servant — Employment of Minor — Violation of Statutes —Negligence.</p> <p>A case controlled by the principles announced' in Norman v. Yirginia-Pocahontas Goal Company, 68 W. Va. -.</p>

<p>Error to Circuit Court, Raleigh. County.</p> <p>Action by Crockett Mankin against G. W. Jones. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Abatement and Revival — Another Action Pending — Action on Notes — Suit to Enforce Lien.</p> <p>A creditor who holds a note secured both by personal endorse- ' ment and by a vendor’s lien on land conveyed to the principal debtor, may proceed at law on the note, and in equity for the enforcement of his lien, at the same time, until he obtains satisfaction in one forum or the other.</p> <p>2. Principal and Surety — Enforcement of Judgment Against, Surety — Injunction.</p> <p>Equity will not enjoin the collection of an execution levied upon the property of the surety, on the sole ground that the credit- or is proceeding in equity to. enforce his lien on the lands of the principal debtor for the same debt.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by Samuel H. Parfitt against the Sterling Veneer & Basket Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, 'Putnam County.</p> <p>Action by J. R. Ewers against J. C. Montgomery and others. Judgment for plaintiff, and defendant Montgomery brings error.</p>

<p>1. Equity — Abatement and Revival — Pleading—Unverified Plea in Abatement.</p> <p>A plea to a bill in equity, filed by an administrator with the will annexed, asserting variance between the summons .and the bill, on the ground that the plaintiff is described in the summons merely as administrator, is a plea in abatement, and, if unverified or tendered after a general appearance, may properly be rejected or disregarded in the decree.</p> <p>2. Vendor and Purchaser — Enforcement of Vendors Lien — Parties.</p> <p>In a suit to enforce a vendor’s lien against property which the vendee has conveyed to another person, upon his assumption of the purchase money debt, and which has been conveyed by said second purchaser to a third, in consideration of money paid and notes executed by such third person, with an express covenant in the deed for payment of all incumbrances by the grantor, all of such persons are proper parties.</p> <p>3. Same — Vendor’s Lien — Enforcement—Eeeree.</p> <p>If, in such case, none of the original purchase money, which the second grantee was bound to pay, has been paid by the first or third, the extent of their right is to have a decree, requiring •such second grantee to pay the original creditor what is due on account of the purchase money. Neither has a right to a personal decree for money in his own favor.</p> <p>4. Principal and Surety — Enforcement of Vendor’s Lien — Surety-ship.</p> <p>In such ease, there is no legal contract of suretyship, but, for the purpose of working out equity and justice, the parties will be treated, in a court of -equity, as standing in a relation of suretyship.</p> <p>5. Vendor and Purchaser — Default in Installments — Acceleration of Payment.</p> <p>A stipulation for acceleration of payment in a contract for money is not penal in its nature or effect and will be enforced in a court of equity.</p> <p>6. Evidence — Parol Evidence.</p> <p>Parol evidence is inadmissible to contradict or vary the terms of a written contract.</p>

<p>1. Frauds, Statute of — Promise to Answer for Debt of Another.</p> <p>If property be delivered or services rendered to one person upon an oral promise of payment by another, and charged only to the person to whom delivery was so made or for whom services were so rendered, and an effort made to collect the purchase money or compensation from the person against whom the charge was made, such promise is'eollateral and, if not in writing, void.</p> <p>2. Same.</p> <p>If the main purpose of an oral promise by one person to pay a sum of money for which another is liable or may become liable is to secure a direct, personal and pecuniary benefit to the promisor, the promise is original and not within the statute of frauds, though such third person remain liable for the debt.</p> <p>3. Same — Promise to Pay the Debt of Another.</p> <p>If the benefit, derived by the promisor in return for such a • promise is remote, indirect and not personal, the promise is collateral and within the statute.</p> <p>4. Same — Payment of Corporate Debts — Oral Promise of Stockholder.</p> <p>The oral promise of an officer and stockholder of a corporation, who is liable a? an endorser on its paper and for debts or obligations, assumed by the corporation, to pay for goods sold and delivered to it, is collateral and within the statute, the benefit, accruing to him from such sale and delivery, being remote and indirect.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Eli Plurley & Son against tlie Norfolk & Western Railway Company. Judgment for plaintiff, a'nd defendant brings error.</p>

<p>Appeal from Circuit Court, Brooke County.</p> <p>Action by Mina W. Applegate against the Wellsburg Banking & Trust Company. Judgment of dismissal and plaintiff appeals.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Addie L. Tompkins against the Sunday Creek Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Deeds — Delivery■—Acceptance.-</p> <p>A deed must tie "both delivered and accepted to operate as a deed.</p>

<p>Appeal from Circuit Court, Lewis County.</p> <p>Bill by Miltou Butcher and others against W. V. Chidester and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Injury to Minor Employe. : ' .</p> <p>The principles of Norman v. Virginia-Pocahonlas Goal Go., 68 W. Ya. 405 are affirmed and applied.</p>

<p>Jury — Objection to Legality — Jury Commissioners — Oath.</p> <p>A case controlled by points 1 and 2 oí the syllabus in State v. Medley, 66 W. Va. 216.</p>

<p>Petition of S. C. Butler for writ of mandamus against J. S. Darst, Auditor, and others.</p>

<p>1. ¡Wills — Probate—Bill to Impeach.</p> <p>In a suit under the provisions of Code 1906, ch. 77, sec. 32, to impeach the prohate of a will, the validity of a subsequent probate of a wholly different paper cannot be established.</p> <p>2. Same — Probate—Impeachment—Interest.</p> <p>The absolute validity of the rights.of plaintiff is not a question in such suit. In this particular it is sufficient for plaintiff to show a bona fide interest in impeaching the will.</p> <p>3. IufaNts- — Actions Against — Admissions by Defendants — Effect.</p> <p>Admissions in answers of adult defendants cannot bind infant defendants in the cause. A decree against the rights of infants standing only on these admissions must be reversed.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the West Virginia Architects & Builders against Mary W. Stewart. Judgment for defendant, and plaintiff brings .error.</p>

<p>Petition by E. A. Street for 'writ of prohibition to W. A: Parsons, Judge of the Circuit Court, and another.</p>

<p>1. Sale — Warranty of Fitness.</p> <p>Though the vendor of an article knows it is intended for a particular use or purpose, the sale thereof carries no implied warranty of fitness for such purpose, if the purchaser has' seen and inspected the article and secured just what he contracted for.</p> <p>2. Evidence — Parol Evidence — Written Contract.</p> <p>Oral evidence to prove an express warranty of the fitness of an article, constituting the subject matter of the sale, for a particular purpose, is inadmissible, when the contract, signed by the purchaser’s agent, though informal, definitely and specifically describes it and says it is in accordance with the instructions of such agent.</p> <p>3. Sales — Complete Written Contract.</p> <p>In such casé, a letter, from the purchaser, introducing the agent, and saying the article is to be “built according to his instructions”, and a letter from the seller, completely and minutely describing the article, setting forth the price, terms and shipping directions, saying an order therefor has been entered in accordance with the agent’s instructions, signed by the agent, and confirmed by another letter from the purchaser, constitute a complete contract in writing.</p> <p>4. Appeal and Ebeob — Harmless Error — Directing Verdict.</p> <p>Inadmissible evidence, constituting the sole ground of defense, and erroneously let in over the objection of the defendant, does not preclude a peremptory instruction to find for the plaintiff. Though irregular .and technically erroneous, such procedure is unavailing in the appellate court, since it is not prejudicial.</p>

<p>1. Makdamus — Parties.</p> <p>Persons having wholly separate and distinct rights cannot join as relators in mandamus.</p> <p>2. Officers — Terms—D esignation — E ffect.</p> <p>Political nominations made and elections held to fill two offices, in respect to each of which there is legally an unexpired term and to one of them also a regular term, which the voters could fill at the time, by election making as to one office a term of about two years and eight months and as to the other of about four years and eight months, in a practical sense, are deemed to have been made and held for the purpose of filling the offices as fully and completely as the voters had right and power to fill them, such nominations having been made and elections held under designations of a “two ye£r 'term” and a “four year term”, respectively.</p>

<p>1. Specific Performance — Rights of Vendee — Breach of Contract ~by Vendor.</p> <p>Where the vendor sells land by written contract providing for the payment of the purchase money in future installments, and for the making of a deed when all the purchase money is paid, and afterwards breaks, and Wholly repudiates his contract, the vendee may have specific performance immediately, and without waiting until the time of complete performance.</p> <p>2. Same — Decree.</p> <p>But he can only have - performance according to the terms of the contract. The court can not compel the vendor to receive the purchase money until it is due and payable according to the terms of the agreement.</p>

<p>Error to Circuit Court; Eayette County.</p> <p>Action by the Weaver Mercantile Company against W. D. Thurmond. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court; Preston County.</p> <p>Action by Matilda Bratt against W. M. Cornwell. Judgment of dismissal, and plaintiff brings error.</p>

<p>Rule by J. B. Kimes in prohibition against Charles M. ' Showalter, Judge, and others.</p>

Bill by Precl 0. Blue, special commissioner, against D. Hess Poling and others. Decree for plaintiff, and John, Curry and others, certain defendants, appeal.

<p>1. Feauds, Statute ojt — Parol Contract.</p> <p>Where a verbal contract is entire, and relates to a matter which renders it necessary, under the statute of frauds, that the promise should be in writing, the whole promise is void.</p> <p>2. Same — Personalty.</p> <p>While partnership real estate (standing timber in this case) may in equity be impressed with the character of or converted into personalty, for partnership purposes, it is not out and out personalty so as to take it out of the statute of frauds.</p> <p>3. Loss and Logsing — Sale of Timber — Construction of Deed.</p> <p>A deed conveying standing timber to the grantee, his heirs or assigns, construed to invest in him a present estate in land, conditioned on his removing the timber within the period prescribed by. the deed.</p> <p>4. Frauds, Statute or — Sale of Standing Timber.</p> <p>As a general rule the sale of standing timber is a contract conveying an interest in land, and within the inhibition of the statute of frauds.</p> <p>5. Same — Purpose and Effect.</p> <p>The statute of frauds was as much designed to protect the vendee as the vendor of land; and its primary effect is to prohibit an action for the breach of an oral contract falling within its. terms either against vendor or vendee.</p>

<p>Appeal from Circuit Court; Wood County.</p> <p>Action by Jock B. Henderson against James M. Henrie and others. Judgment for plaintiff, and the mentioned defendant appeals.</p>

<p>■ Appeal from Circuit Court, Jefferson County.</p> <p>Action by Magnus C'onklyn and others against the Shenandoah Milling Mompany. Decree for defendant, and plaintiffs appeal.</p>

Petition of Harry F. Brand for a writ of prohibition to J. I. Swindler, Justice, and others. From an order denying the writ, plaintiff brings error.

<p>Error to Circuit Court, Cabell Count}'.</p> <p>Action by Lola Townley against tlie City of Huntington. Judgment for plaintiff, and defendant brings error..</p>

<p>Appeal from Circuit Court, Eandolpb County.</p> <p>, Bill by the Davis Trust Company, executor of J. W. Knop-snyder, against Samuel T. Spears, administrator of M. J. Quinn. Decree for complainant, and defendant appeals.</p>

<p>1. Carbiebs — Carriage of Passengers — Care Required.</p> <p>Though a railway company is not an insurer "beyond what the •utmost care, human skill, diligence and foresight can provide against, yet the slightest negligence on its part is regarded gross negligence, rendering it liable for injuries sustained by a passenger, in consequence of such negligence.</p> <p>2. Same — Carriage of Passengers — Injury to Passenger■ — Actions— Pleadings — Variance.</p> <p>In actions for personal injuries inflicted by the negligence of a carrier of passengers there is no variance in respect to the specifications of mere matters of detail, concerning the manner or instrumentalities by which the injury is inflicted, if the substantial elements of negligence alleged be proven.</p> <p>3. Same — Carriage of Passengers — Care Required. — Assumption of Rislc.</p> <p>A passenger on a railway carriage does not assume the risks due to the negligence of trainmen in making couplings, though he may have taken passage on a mixed train on a branch line. The duty of the carrier to carry him safely to destination is not limited by the character of the train on which the passenger is invited to travel.</p> <p>4. Appeal and Eebor — Review—Verdict—Injuries—Measure of Damages.</p> <p>Such an action for personal injuries is regarded as one of indeterminate damages, the law giving no specific rule of compensation; and the verdict of the jury, unless evincing passion, partiality, corruption or prejudice, or that it has been misled by some mistaken view of the ease is generally regarded as conclusive.</p>

<p>1. Mines and Minerals — Oil and Gas Lease■ — Provisions for Forfeiture — Time as Essence.</p> <p>Time is of the essence of a condition in an oil and gas lease, making it forfeitable for failure to drill a well within a specified time or pay a certain periodical rental or commutaton in advance.</p> <p>2. Same — Release from Forfeiture of an Oil and. Gas Lease.</p> <p>Equity will relieve from a forfeiture of sucIl a lease for nonperformance of the condition, occasioned by fraud, accident, mis^ take or inequitable conduct of the lessor, provided its aid is sought with reasonable diligence.</p> <p>3. Same — Release from Forfeiture — Laches.</p> <p>Unreasonable delay, under the peculiar circumstances of any given case, will bar such relief, the rule of laches applying with all its vigor and force.</p> <p>4. '' Same — Release from Forfeiture of Oil and Gas Lease.</p> <p>If the lessor, after such a forfeiture, not superinduced by his own inequitable conduct, materially alter his condition, relying in good faith upon the forfeiture, or, if, in any case of such forfeiture, the rights of innocent third parties have intervened, equity will not relieve.</p> <p>5. Same — Jurisdiction—Release from Forfeiture of Oil and Gas Lease — Necessity for Diligence.</p> <p>On the principle of estoppel, laches forbids delay in the assertion of a claim for relief from such a forfeiture with intent to claim or abandon the right according to the event. Equity will not tolerate a fast and loose policy.</p> <p>6. Same — Mutual Right of Cotenant.</p> <p>A cotenant in a lease which has been forfeited does not become a trustee for his associates in the ownership of such lease by the taking of a new one on the same premises, since the subject matter of the cotenancy has become non-existent, the unrelieved forfeiture having put an end to the term created by the prior lease, and the subsequent one having brought into existence a new and independent estate in respect to which there never was any cotenancy.</p> <p>7. Same.</p> <p>Under such circumstances, the right of the cotenants is limited to the identical term in respect to which the cotenancy existed, enforceable by a timely application for relief from the forfeiture.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Action bjr the Parsons & Sweeney Oil Company against J. M. McCormick and others. Judgment for defendants, and plaintiff appeals.</p>

Action by C. D. Runyan, administrator of Walter Runyan, against the Ivanawha Water & Light Company. A verdict for plaintiff having been set aside, he brings error.

<p>Error to Circuit Court, Jefferson County.</p> <p>Action by Mary E. Jacobs, for use, etc., against the Baltimore & Ohio Eailroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. INSURANCE — Fire Insurance Companies' — Doing Business in the State.</p> <p>A Are insurance company, having its principal office in the state which created it, does not violate the laws of another state forbidding foreign corporations to do business . therein,, except upon certain conditions, by insuring property in such other state before compliance with those conditions, if application for the insurance is made to the company at its home office, and the policy is issued therefrom. It is not thereby doing business in the state in which the property insured is located.</p> <p>2. Same — Mutual Assessment Insurance — Liability of Policy Holder.</p> <p>The liability of policy holders in a mutual assessment insurance company depends upon the law of the state creating the corporation.</p> <p>3. Limitation oe Actions — Accrual of Action — Existence of Conditions — Mutual Assessment Insurance — Liability of Policy Holder.</p> <p>Such Liability is contingent, and the statute of limitations does not operate in favor of a policy holder until his liabilty is made absolute, either by corporate action, or by judicial determination.</p> <p>4. Corporations — Judgment—Effect as Against Member of Mutual Assessment Insurance Company.</p> <p>In the absence of fraud, policy holders in such a corporation are bound by a decree against the corporation ascertaining its liabilities, and assessing the policy holders to pay the same. Such decree is not open to collateral attach.</p> <p>5. Same — Liability—Assumption of Debt.</p> <p>A sale and transfer of property by the members of a partnership to a corporation composed of stockholders, some of whom were members of the partnership and others not, does not import an assumption by the corporation of the debts of the partnership.</p>

<p>Appeal and Ekkok — Decisions Beviewahle — Final Judgment.</p> <p>If, in the trial of an action upon a demurrer to evidence which is sustained, the court does not render a judgment of nil capiat, but only for costs, there is no final judgment, and this Court is without jurisdiction to review the case.</p>

<p>1. Moetgages — Requisites—Absolute Deed as Mortgage.</p> <p>A deed of conveyance, absolute on its face, may be shown to be a mortgage.</p> <p>2. Same — Ahsolute Deed.</p> <p>A deed for land appearing to be absolute, and reciting a cash consideration of $4,500.00, but which was in fact made to secure and indemnify the grantee as the accommodation endorser of notes made by the grantor, constitutes the grantee a mortgagee, and not a purchaser.</p> <p>3. Fraudulent Conveyances — Absolute Deed — Equity of Redemption.</p> <p>The grantor in such a conveyance is vested with the equity of redemption, and will not be permitted to dispose of it in fraud of the rights of his existing creditors.</p> <p>4. Same — Form—Absolute Deed as Mortgage — Conveyance by Insolvent Husband.</p> <p>If an insolvent husband make such a conveyance, and at the time of making it, or afterwards, agree with the grantee that, upon the payment of the notes to secure which the deed, or mortgage, is given, the grantee shall convey the property to grantor’s wife, such an agreement is in fraud of the rights of existing creditors of the grantor; and if the grantor afterwards pay the notes, and the grantee, in pursuance of the agreement, convey the property to grantor’s wife, it will be set aside at the suit of the husband’s existing creditors. Such conveyance to the wife is without consideration, and amounts in law to a gift from her husband.</p> <p>5. Same — Position of Voluntary Grantee of One Holding Under Fraudulent Conveyances.</p> <p>The voluntary grantee of one who fraudulently acquired title, is in no better position than his grantor.</p> <p>6. Same — Action to Set Aside — Burden of Proof.</p> <p>When a conveyance is attacked as fraudulent, and the fraudulent intent of the grantor is shown, it is incumbent on the grantee to prove that he is a purchaser for value; and if he fails to do so he will be regarded as having been a party to the fraud.</p> <p>7. Same — Conveyance to Prospective Son-in-Laio.</p> <p>A man, admitted to be engaged to the daughter, claims to be the purchaser of land from her mother, and very shortly after the alleged purchase marries the daughter and immediately conveys the land to her. Held: That for the purpose of ascertaining the good faith of the alleged purchase, he must be regarded as a son-in-law at the time of the alleged agreement.</p> <p>8. Subrogation — Right of Surety to Subrogation.</p> <p>Whenever a surety is compelled to pay a debt of his principal he is entitled to be subrogated to all the rights and remedies of the creditor against his principal; such rights are not limited to the time of the payment, but are co-extensive with the- debt, or obligation.</p> <p>9. Fbaudulent Conveyances — Existing Creditors — Bight of Surety to Set Aside.</p> <p>A boar.d of education brought suit against a sheriff and Ms sureties on his official bond, and obtained a judgment for a balance found to be due it, and in the sheriff’s hands, and the sureties paid the judgment. Between the ending of his term of office and the date of the judgment, the sheriff had fraudulently procured a transfer of his property to be made to his wife without consideration. Held: That being subrogated to the rights and remedies of the board of education, the sureties are to be treated as existing creditors at the time of the fraudulent conveyance, and can have it set aside, and the land subjected to the payment of the debt.</p> <p>10. Same — Setting Aside — Reference to Ascertain Liens and Priorities — necessity.</p> <p>■Where a conveyance is attacked and set aside for fraud, an order of reference to ascertain liens and their priorities is not generally necessary. Neither has the fraudulent grantee any right to demand a renting, instead of a sale, of the property.</p> <p>11. Same — Equities of Fraudulent Grantees.</p> <p>There are no equities between fraudulent grantees who receive conveyances at different times which will warrant the application of the rule that the land should be subjected in the inverse order of its alienation. Lands in the hands of such alienees are equally liable for the grantor’s debts.</p> <p>12. Equity — Right to Belief — Co-Defendant.</p> <p>Notwithstanding the rights of a co-defendant are clearly established by the proof taken on the pleadings between plaintiff and defendant, still no relief can be granted such co-defendant unless relief for him is included in the prayer of plaintiff’s bill, or unless he has himself answered and prayed for relief.</p> <p>(Miller, Judge, absent).</p>

<p>Mikes and Minerals — Operation of Mine — Statutory Regulations.</p> <p>The provisions of Code 1906, chapter 79, section 7, inhibiting the mining of coal within five feet of a division line, apply to one owning a vein of coal without ownership of the surface.</p>

Action by the King-wood Gas, Coal & Iron Company against Lovilla A. Halbritter and others. Decree for plaintiff, and the mentioned defendant appeals.

<p>1. Injunction — Bond—Construction.</p> <p>Liability on an injunction bond does not extend beyond tbe terms therein used, fairly construed.</p> <p>2. Same.</p> <p>Absolute voids in such a bond cannot be filled by insertion or addition of things which, according to law, should have been put into it, or which it is merely supposed the parties intended to include.</p> <p>3. Same.</p> <p>The condition of a bond, given to put into effect an injunction against a judgment, requiring the judgment debtor only to perform and discharge the orders and decrees of the court in the injunction suit, respecting the judgment, does not make the obligors liable for the judgment unless nor until a decree therefor is rendered, nor for costs in the equity suit at all.</p>

Action by J. C. Ilaupt against W. H. Yint, the De Ean Lumber Compairy, and others. Judgment lor plaintiff, and defendant lumber company brings error.

<p>Justice of the Peace — Appeal—Amount in Controversy.</p> <p>In an action of detinue in a justice’s court there is judgment for recovery of the property, if to he had, and if not to he had, then for its value at a sum less than fifteen dollars, and there is no set-off or counter claim. The defendant cannot appeal.</p>

<p>Appeal from Circuit Court, Lewis Count}''.</p> <p>Bill by James B. Lovett and wife against the Eastern Oil Company and others. Deere of dismissal and plaintiffs appeal.</p>

<p>Appeal ánd Ekkor — Verdict—Weight of Evidence.</p> <p>The verdict of a jury is entitled to great'-respect from the court, but when it depends only upon slight inferences, drawn from facts testified to by witnesses, and conflicting with direct, positive, and undisputed testimony of other witnesses which negatives such inferences, it is the duty of the court to set it aside.</p>

<p>1. MECHANICS’ Lies'- — Notice to Owner — Service.</p> <p>Service of notice required by section 3 of chapter 75, Code (1906), to be given to the owner by one who has performed labor for, or who has furnished material to, the contractor, is' sufficient if made in the manner provided by section 1, of chapter 121, Code (1906).</p> <p>2. Same — Notice to Owner — Service—Return of Sheriff.</p> <p>A sheriff’s return upon such notice, reciting the manner of service, is. his official act, and must be regarded as at least prima facie true.</p> <p>3. Same — Limiting Amount of Liability — Recording Contract.</p> <p>If the owner wishes to limit the amount tor which his property may be made liable to a sum not to exceed the contract price agreed on by him and the contractor, he must have his contract recorded.</p> <p>4. Same — Notice of Lien — Waiver.</p> <p>Failure to record his contract does not have the effect to constitute the contractor his agent to the extent of dispensing with notice to the owner.</p>

<p>1. Municipal Cobpobations — Taxation—Recovery of Tax Paid..</p> <p>In order to entitle a plaintiff to recover from a municipality a tax alleged to have been levied by it without authority of law, and paid under compulsion, he must prove that the tax was illegal and void.</p> <p>2. Same: — Presumptions■—Validity of Tax.</p> <p>If it appears from the charter of such municipality that it had the right, in any event, to levy the tax which is sought to be recovered, it will be presumed, in the absence of proof, that the tax was lawful.</p>

<p>1. Justices of the Peace — Review.</p> <p>If a justice at a trial announces a judgment favorable to a party, and, after the lapse of ten days allowed for appeal, enters as of the date of the trial, a wholly different judgment, one against the party, a case is made warranting the circuit court in granting an appeal within ninety days.</p> <p>2. Same — Dismissal—Right of Plaintiff.</p> <p>A plaintiff, in a case before a justice, may dismiss his action, without prejudice to a new suit, before a final submission of the case for decision on the merits.</p> <p>3. Depositions — Necessity for Caption.</p> <p>The mere want of a caption to depositions does not invalidate them if the notice under which they are taken and the certificate of the notary as to their taking supply all that a caption usually contains.</p> <p>(Beannon, Judge, absent.)</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Bill by Jennie Y. Suter, guardian of Gertrude W. Suter, against Jennie Y. Suter, Norman Suter, and others. From the judgment, defendant Norman Suter appeals.</p>

<p>Carriers — Carriage of Passengers — Injury to Passenger.</p> <p>Where one intending to become a passenger, and while the work of preparing the train on which he intends to take passage • is going on, necessitating dangerous switchings and couplings of the cars, of which he has notice, and at a point where the carrier is not accustomed to -receive passengers, and without notice to or invitation by any officer or agent of the carrier with authority, enters one of the coaches, and in attempting to go from one coach to another, is injured hy a jolt or impact given to the coaches in making such switches or couplings, the carrier is not liable to him in damages for his injures thus sustained.</p> <p>(Brannon, Judge, absent.)</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by the American, Canning Company against the Flat Top Grocery Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Municipal Corporations — Street Paving — Liability of Abutting Property Oxoners.</p> <p>By virtue of chapter 47 of the Code, under which it was incorporated, the City of Elkins had power and authority, in the years 1903 and 1904, to pave its streets and charge two-thirds of the cost of paving them to abutting property owners, notwithstanding the grant of a new charter by the legislature of 1901, since section 42 of chapter 151 of the Acts of 1901, constituting such charter, expressly reserved to the city all the powers previously conferred upon it by said chapter 47.</p> <p>2. Same — Special Assessments.</p> <p>When lack of authority in a city council to charge the cost of paving to abutting property owners, .or other cause of invalidity extending to all paving assessments made in the city, is the cause of action alleged, one or more persons, charged with special assessments for cost of paving, may sue on behalf of themselves and all others so charged, to invalidate the assessments.</p> <p>3. Same — Street Assessments — Action to Invalidate — Sufficiency of Bill.</p> <p>As the section of a street between two cross streets or a cross street and an alley is the unit for paving, established by section 34 of chapter 47 of the Code of 1906, a bill to enjoin collection of special assessments made under that section, on the ground of lack of a sufficient petition to the counsel by property owners, must he confined to property on the particular section in respect to which the petition is insufficient and owners thereof, and cannot extend to property on more than one section or the owners thereof.</p> <p>4. Sajme — Street Paving — Action to Enjoin Collection of Special Assessments — Sufficiency of Bill.</p> <p>A bill to enjoin collection of a special assessment for street ■ paving must set forth ground of invalidity therein, it being incumbent upon the plaintiff to show right to the equitable relief he seeks.</p> <p>5. Injunction- — Pleading—Amendment of Bill.</p> <p>An injunction, standing on a bad bill, but sustained by proof, not admissible under the allegations of the bill, should be continued for a reasonable time, to enable the plaintiff to amend his bill, if he desires to do so.</p> <p>(Brannon, Judse, absent.)</p>

Action by Ira H. Greathouse, guardian of W. 0. Morrison and another, against R. T. Morrison, executor by G. II. Morrison, and others. From the judgment plaintiff brings error.

<p>1. Account — Equity—Jurisdiction—Accounting.</p> <p>Equity has jurisdiction of a suit for an. accounting, when there is a privity of contract between the parties, even though the accounts be all on one side, when the bill prays for a discovery and alleges facts which show that a discovery is essential to the establishment of plaintiff’s rights.</p> <p>2. Evidence — Parol Evidence — Latent AmMguities in Written Instrument.</p> <p>Parol evidence is always admissible to explain latent am-' biguities in a written instrument.</p> <p>3. Same.</p> <p>When the owner of coal makes a written lease' of it, in consideration of a royalty of $1.50 per “railroad car, or its equal, of coal,” and it appears that, at the time the lease was executed, railroad cars of various sizes were used for transporting coal, there is a latent ambiguity in relation to the unit of measurement; and parol evidence is admissible to explain what was the capacity of the car intended.</p> <p>4. Contracts — Construction—Acquiescence.</p> <p>When it appears that the lessor in such a lease has performed no other act than to receive the money under it, at the rate of $1.50 per railroad car, for whch he was not required to execute a written receipt, he will not, for simply receiving the money, be held to have acquiesced in the construction sought to be placed upon the lease by the lessee. He is not estopped thereby from proving that he had a different understanding of the terms of the lease from that claimed by the lessee.</p> <p>(Bkannon, Judge, absent.) ■</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Mandamus by the Town of New Martinsville against the Enterprise Telephone Company. From a judgment refusing the writ, relator brings error.</p>

Bill by Josephine M. Spurrier and others against Frances E. Hobbs and others. Decree for plaintiff, and Henry B. Gaver and other defendants appeal.

<p>Quieting Title — Pleading—Possession.</p> <p>Allegation of actual possession in the plaintiff and proof of that possession when the allegation is denied are essential to jurisdiction in equity of a suit to remove cloud on title.</p> <p>(Bbannon, Judge, absent.)</p>

Action by Milton Curtis and others against the Piney Colliery Company and others. Judgment for defendants, and plaintiffs bring error.

<p>1. Masteb an» Servant — Injuries to Servant — Disregard of Warning.</p> <p>A miner, employed in a coal mine, can not by disregarding the judgment oí the mine foreman, that the place in which he is working has become dangerous and unsafe, and the statute which inhibits the mine foreman from permitting him, and him from working there, and by accepting the assurances of safety, and obeying the order of the operator or his superintendent, to work in the forbidden places, render the operator liable as at common law for personal injuries sustained thereby.</p> <p>2. Declaration.</p> <p>The demurrer to the declaration and each count thereof, in this case, founded on a different theory, was properly sustained.</p> <p>(Brannon, Judge, absent.)</p>

<p>1. Divoece — Default—Setting Aside.</p> <p>Under section 14, chapter 124, Code 1906, authorizing a defendant who has not been served with process in this state, and who did not appear before judgment or decree, to file a petition'to have the proceedings reheard, a defendant in a divorce suit who was personally served with process in another state and who did not appear, may within one year from the time he or she is served with a copy of the decree, or if not served with a copy of the decree, then within five years (as the limitation was in 1906) after the date of the decree, file a petition to have the cause reheard,</p> <p>2. Same — Desertion—Separation Toy Agreement.</p> <p>If the separation of husband and wife is by agreement, or if the husband assents to, or acquiesces in, the wife’s separation from him, he cannot maintain a suit for divorce on the ground of desertion. Such separation does not amount to desertion or abandonment in law.</p> <p>( Brannon, • Judge, absent.)</p>

Bill by O. G-. Augir, trading as 0. G-. Augir & Co., against Rebecca R. Warder and others. From a decree overruling the demurrer to tlie bill, tlie mentioned defendant and another appeals.

<p>Appeal from Circuit Court, Wood County.</p> <p>Action by IT. T. Wade against Mary Y. Carney and others. From a decree dismissing the bill, M. G. Knox and Harry D. Knox appeal.</p>

<p>Master and Servant — Injuries to Servant — Safe Appliances.</p> <p>The master is liable in damages to the servant for an injury caused by the neglect of the duty of the master to use ordinary care and diligence in providing and maintaining reasonably safe and suitable appliances for the "work to be done, ■whenever the servant himself is free from fault.</p> <p>(Brannon, Judoe, absent.)</p>

<p>1. Assumpsit, Action or — Grounds—Timber Contract.</p> <p>Where there is a contract between the parties, though the title to the land he in dispute, assumpsit will lie upon the contract, fully executed, for the value of timber sold, and cut and taken from land.</p> <p>2. Ejectment — Judgment■—Oonclusiveness.</p> <p>A judgment in ejectment, though by default, is conclusive not only as to the right to possession, hut as to the right and title to the land.</p> <p>3. Infants — Judgment Against Infant Defendants.</p> <p>Such a judgment against an infant defendant, not sued as such, and not defended by guardian ad, litem, is not void, but is simply erroneous, reviewable, formerly by writ of error coram nobis, now by motion, and by appeal to this Court, pursuant to chapter 134, Code 1906; and though such judgment will not bar an infant in an action commenced by him within five years after reaching his majority, it is binding and conclusive upon him after that time.</p> <p>4. Appeal and Error — Right to Complain.</p> <p>Though in éjctment pedigree is not provable by recitals in a deed less than thirty years old, yet, in an action by vendor against vendee for timber taken from land, such.vendee not objecting, an interpleader showing no right or title to land or timber, can not defeat plaintiffs recovery by objecting in this Court for the first time to the sufficiency of the proof of pedigree.</p> <p>(Brannon, Judge, absent.)</p>

<p>1. Municipal Cokpoeations — Defects in Streets — Contributory Negligence.</p> <p>If a traveler on a pubic road or street negligently sustain injuries from open and apparent defects therein, of which his observations prudently exercised would, or ought to have informed him, he is guilty of contributory negligence, precluding recovery of damages for the injuries "thus sustained.</p> <p>2. Negligence — Question for Jury — Contributory Negligence.</p> <p>When the facts showing such contributory negligence are undisputed, the question becomes one of law for the court, and not of fact for jury decision.</p> <p>(Bkaxnon, Judge, absent.)</p>

Action by the State, for the use of John W. Ball, administrator of John Lewis, against Crockett Mankin; committee, etc., and others. Judgment for .defendants, and plaintiff brings error.

<p>1. INsu~Nc13~ POLICY-Power of Acljuster-Wctiver of Proof of Loss.</p> <p>An adjuster of an insurance company lias no authority or power, as such, to waive proof of loss, required, by the policy, as a condition precedent to a right of action, by denying liability on the part of the insurer upon other grounds, when the policy contains the clause, limiting the authority of agents, found in the standard insurance policy.</p>