Volume 70 — West Virginia Reports

<p>3. Fraudulent Conveyance — Transactions Invalid — Prior or Subsequent Creditors.</p> <p>Whether one is a prior or a subsequent creditor in relation to a voluntary conveyance must he ascertained solely by reference to the time the debt was contracted, (p. 2).</p> <p>2 Same — Transactions Invalid — Priority of Claims — Punning Accounts.</p> <p>When a running or continuous account extends over the date of a voluntary conveyance, the creditor, ás to the part of the indebtedness contracted prior to the conveyance, is a prior creditor, and, as to the part contracted subsequent to the conveyance, he is a subsequent creditor, (p. 3).</p> <p>3. Payment — Application—Running Accounts.</p> <p>If payments are made on a running or continuous account, without particular application of the same thereto by direction of the paying debtor or act of the receiving creditor, the law applies the payments to the oldest items of the account, (p. 4).</p> <p>4. Fraudulent Conveyances — Transactions Invalid — Priority of Claims — Running Accounts. ■</p> <p>One loses his position of prior creditor by accepting payments which lawfully go in full discharge of the indebtedness contracted prior to the voluntary conveyance, (p. 4).</p> <p>5. Same — Remedies of Creditors — Decree.</p> <p>A decree charging property with the payment of debts in favor of various creditors should specifically state the amount due to each creditor, (p. 5).</p>

<p>1. Wills — Construction—Estate Conveyed.</p> <p>A testator devised: "my real & personal property is to be equally divided between my three daughters (naming them) and then to their children forever.” At testator’s death all the daughters were living; two of them had children; the other one, though married, had then no children and never produced issue. After testator’s death, mutual deeds in partition of the land were made by the two daughters then living and the children of the other daughter then deceased. Held:</p> <p>I. The daughters tooli life estates with remainders in fee to their respective children, in their respective shares allotted in equal division of the land. (pp. 8, 9).</p> <p>2. Same — Construction—Tested and Contingent Remainders.</p> <p>II. As to the share of the daughter having no children at testator’s death, the remainder was a contingent one — with possibility of vesting during her life on production of issue, (p. 9).</p> <p>3. Descent and Distribution — Contingent Remainders — Failure.</p> <p>III. At the death of this daughter without issue, the contingent remainder failed; and, there being no residuary clause in the will, the partitioned share of the land to which that remainder pertained descended to the heirs-at-law of the testator. (P. 10).</p> <p>4. Partition — By Parties■ — Effect—Estoppel.</p> <p>IV. The children of the deceased daughter were not estopped by their deed in partition from claiming an interest as heirs-at-law of the testator, in the partitioned share as to which the contingent remainder failed, (p. 11).</p>

<p>Assignments fob Benefit of Cbeditoks — Claims Provable — Secured Claims.</p> <p>Where a debtor makes a general assignment of all his property for the benefit of all his creditors, a secured creditor is entitled to prove and receive dividends upon the face of his claim as it stood at the time of the assignment, or declaration of insolvency, without crediting the value of his security or the proceeds of the sale thereof, made in a suit brought by the assignee to convene the creditors and wind up the affairs of the debtor’s estate, (p. 12). ■</p>

<p>1. Appeal and Error — Review—Harmless Error — Ruling on Pleading.</p> <p>If the good count or counts of a declaration, and the evidence thereunder be sufficient to support the verdict, the judgment thereon will not be vitiated by the error of the trial court, if any, in overruling the demurrer to a bad count, when it clearly appears that the defendant has not been prejudiced thereby, (p. 16).</p> <p>2. Carriers — Injuries to Passengers — Pleading.</p> <p>The first count of the declaration in this case, though omitting to allege, as did the second, that defendant failed to stop its train at the station where plaintiff offered herself as a passenger, and was injured, for a sufficient length of time to enable her to get aboard, and to a place of safety, held good on demurrer, (p. 16).</p> <p>3. Parties — Amendment—Statutory Provision.</p> <p>Where there are two corporations of the same name, one created under the laws of one state, the other of another, but the corporation intended to be sued, has in fact been sued, and duly served with process, but on the trial plaintiff discovers that in one count of his declaration he has erroneously alleged the wrong state under the laws of which defendant was incorporated, it is not error for the trial court, after non-suit suffered, and set aside, on his motion, to permit plaintiff to amend his declaration by striking out the erroneous allegation. Such an amendment is authorized by section 14, chapter 125, Code 1906. CP-18).</p> <p>4. Pleading — Amendment—New Cause of Action.</p> <p>Such an amendment is not the introduction of new cause of action against the defendant actually sued. (p. 19).</p> <p>5. Limitation op Actions — Computation of Limitations — Commencement of Action — Amendment of Pleading.</p> <p>Nor will a'non-suit thus suffered and set aside, amount to a voluntary abandonment or discontinuance of the old suit, and the beginning of a new action, so as to entitle defendant to havo its plea of the statute of limitations applied to the date of the amendment, and not to the date of the writ commencing the suit. Section 12, chapter 127, and section 19, chapter 104, Code 1906, are decisive kof this point, (p. 19).</p> <p>6. Teial — Opinion Evidence — Effect.</p> <p>The verdict for the plaintiff is not contrary to the overwhelming weight and preponderance of the evidence, (p. 21).</p> <p>7. CabrieRS — Injuries to Passengers — Questions for Jury.</p> <p>The questions of the manner in which plaintiff sustained her injuries; the reasonableness of the stop made at defendant’s railway station; whether plaintiff was attempting to hoard a moving train at the time of her injuries, and whether defendant was guilty of negligence in not seeing her and seeing that she got on the train, and to a place of safety, before giving the signals to go ahead, all depended on conflicting evidence and attendant circumstances, and were properly submitted to the jury. (PP. 21-2).</p> <p>8. Same — Injuries to Passengers — Tatting Up Passengers.</p> <p>It is actionable negligence for a conductor or other servant of a railroad company to start a train while passengers are obviously in the act of getting on it, or alighting therefrom, (p. 24).</p> <p>9. Trial — Instructions—Requests—Instructions Already Given.</p> <p>It is not error to reject instructions the subject of which has been substantially covered by other instructions given, (p. 25).</p> <p>10. New Teial — Appeal and Error — Newly Discovered Evidence— Discretion of Trial Court.</p> <p>If the affidavits on which a motion for a new trial for after discovered evidence is based, are rebutted by counter affidavits, it is for the court below exercising a sound judicial discretion to say whether a new trial should be granted, and its judgment should not be disturbed, except for plain abuse of that discretion, (p. 25).</p>

<p>Error to Circuit Court, Bandolpb County.</p> <p>Action by Mark S. Wilson and another, partners under the firm name of Wilson Bros., against B. F. Bush, receiver. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal asd Error — Order in Equity — Striking Evidential Matter from, Answter</p> <p>An order in a chancery cause, sustaining exceptions to an answer anti striking from it only evidential matter, without eliminating the allegations of defensive rights or denials of controverted'averments of the bill, is not appealable.</p>

<p>3. Right of Action — Personal Representatives.</p> <p>Is a personal representative given exclusive right over creditors, for six months after qualification, to bring the suit provided for by sec. 7, ch. 86, code 1906, to subject real estate of a decedent to payment of debts? (p. 39).</p> <p>■2. Btll in Equity — Bale of Realty — Sufficiency of Personal Estate.</p> <p>Must a bill in equity under sec. 7, ch. 86, code 1906, to subject real estate of a decedent to debts, allege the insufficiency of his personal estate to pay his debts? (p. 40).</p> <p>3. Contracts — Consideration—Moral Obligation.</p> <p>When there is by law no enforceable obligation to pay, a promise made afterwards to pay wants legal consideration, and is not enforceable, (p. 43).</p> <p>4. Bills an» Notes — Consideration—Past Payments.</p> <p>A promissory note given by a son to his widowed mother for money paid by her for his board while at college and his college education, after such expenditure, without promise or expectation of repayment on the part of either, at the time of such expenditure, wants iegal consideration, and is not enforceable, (p. 43).</p> <p>5. Contracts' — Consideration—Moral Obligation.</p> <p>A merely moral obligation, though not illegal, is not a consideration for a promise, to make that promise enforceable. (P. 43).</p> <p>6. Subrogation — Principal and Surety — Right to Contribution.</p> <p>A co-debtor, not principal debtor, paying a debt secured by a deed of trust executed by both on their land may have subrogation to the right of the creditor for contribution against his co-debtor. (p. 41).</p> <p>7. Same — Effect of Limitations.</p> <p>A deed of trust binding land of several debtors for a debt, paid by one not principal debtor, and released by the creditor, is kept alive in equity to give contribution to the debtor paying against a co-debtor, notwithstanding such release, and though action at law for contribution is barred by the statute of limitations. Laches, not statutory limitation, may bar such subrogation. (P. 42).</p> <p>S. Interest — Items—Interest on Judgment.</p> <p>It is error to give interest on the sum of principal and interest computed to a date prior to decree. Interest on the sum of principal and interest at date of decree should he given from date of decree, (p. 45).</p>

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

<p>1. Mastek and Servant — Injuries to Third Person — Independent Contractors.</p> <p>Generally, if one let work, lawful within itself, to a contractor and retain no control over the manner of its performance, he is not liable on account of negligence of the contractor or his servants. But if the work is intrinsically dangerous, or is of such character that injury to third persons, or to their property, might reasonably be expected to result directly from its performance, if reasonable care should be omitted, the employer is not relieved from liability by delegating the performance of the work to an independent' contractor, (p. 50).</p> <p>2. Indemnity — Express Contract — Yalidity.</p> <p>A contractor who engages to perform such work can bind himself by a promise to indemnify his employer against liability to third persons, (p. 51).</p> <p>3. Same — Express Contract- — Right of Action.</p> <p>The employer may settle, without suit, the damage against which he is indemnified, and recoup the same in an action brought by the contractor for the price of the work, provided, however, the amount paid does not exceed the damage actually suffered. A settlement thus made between the indemnitee and 1he party injured,, is not conclusive on the indemnitor, (p. 51).</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Bill by Shelton L. Reger against William M. McAllister and others. Decree for complainant, and defendant' McAllister appeals.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill by W. Á. Lathrop against Columbia Collieries Company ’ and another. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by O. K. Bobinson against the Board of Education of the District of Cabin .Creek, in the County of Kanawha. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Bill by Barton Pardee and others against the Camden Lumber Company and others. Decree for defendants and plaintiffs appeal.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by John J. Dolan and others against Michael Dolan and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. Eminent Domain — Condemnation for Electric Companies — Public Use.</p> <p>The legislature may authorize the taking of private property for public use, upon making provision for just compensation therefor, by electric power, heat, light and traction companies. Clause six of ch. 13, Acts 1907, amending and re-enacting sec. 2, ch. 42, Code 1899, is not an unwarranted exercise by the legislature of the power of eminent domain, (p. 84).</p> <p>2. Same — Public Purpose — Expediency.</p> <p>Whether it is expedient, appropriate or necessary to provide for a public service of a particular kind or character, is a legislative, not a judicial, question, (p. 87).</p> <p>3. Same — Jurisdiction—Public Use.</p> <p>Courts are limited in their inquiry to the question, whether the particular service provided for is a public service, (p. 87).</p> <p>4. Same — Exercise of Right — Agencies.</p> <p>The legislature may select the agencies through which it will exercise the right of eminent domain, including foreign corporations. (p. 90).</p> <p>5. Same — Foreign Electric Power Companies.</p> <p>Sec. 30, ch. 54, Code 1906, confers upon foreign electric power, light, heat and traction companies that have complied with the conditions of law1 entitling them to do business in this state, and that propose to serve the public, equal right of eminent domain with like domestic companies, and subjects them to the same regulations, restrictions and liabilities, (p. 90).</p>

<p>1. Boundaries — Description—Relative Importance of Conflicting Elements.</p> <p>In locating the boundaries of land, ordinarily the course of a line must yield to a call for a natural monument, (p. 93).</p> <p>2. Same.</p> <p>A call in an ancient deed for “two white oaks on Cooper’s Point” must control over a course given for the line which will not take it to Cooper’s Point, when the location of that place is definitely established, though the trees are not found there, (p. 94).</p> <p>3. Ejectment — Title of Plaintiff — Adverse Possession.</p> <p>When a plaintiff in ejectment proves that he and those under whom he holds have had adverse possession of the land for a period exceeding ten years, he need not trace his title to the commonwealth, (p. 9C).</p>

<p>Error to Cirucit. Court, Cabell County.</p> <p>Action by E. E. Adkins and another against the Guyandotte Timber Company. Judgment for plaintiffs, and defendant brings error.</p>

Bill in equity by the Island Creek Railroad Company against tlie Logan & Southern Railway Company. From a decree for defendant, plaintiff appeals. Condemnation proceedings by the Logan & Southern Railway Company against the Island Creek Railroad Company. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Circuit Court, Ohio County.</p> <p>Action by Edward Broemsen and others against Michael Agnic. Decree for plaintiffs, and defendant appeals.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by James Cooper against A. J. Bennett and others. Decree for defendants, and complainant appeals.</p>

<p>Appeal from Circuit Court, Randolph. County.</p> <p>Bill by tlie Elkins Rational Bank against Ella D. B. Reger and others. Decree for complainant, and defendants appeal.</p>

<p>1. Libel axd Slander — Pleading—Declaration.</p> <p>A. declaration for slander in charging the plaintiff with swearing a lie, not stating that the defendant made the false statement in a legal proceeding, and not stating that she was under oath when making the statement, is not good as a declaration for common law slander; but as it avers that the slanderous words according to their usual construction and common acceptation, are construed as insults and tend .to violence and breach of the peace, it is good as a declaration for insulting words under code of 190G, cli. 103, sec. 2, and is not subject to •demurrer, (p. 118).</p> <p>2. AcrioN — Single Cause of Action.</p> <p>A declaration in an action for slander in tbe usual form of a declaration for common law slander, reciting tlie good character and reputation of the plaintiff, and malicious intent of the defendant to injure the good name and reputation of the plaintiff, and alleging damage to it from the act of the defendant, thus importing to be an action for common law slander, yet averring that the words spoken, according to their usual construction and common acceptation, are construed as insults and tend to violence and breach of the peace, thus showing that the action is for statutory slander under code of 1906, ch, 103, sec. 2, is a declaration for statutory slander, and not open to the charge that it unites in the same count the two kinds of slander. The recital of good character and injury to it is treated as inducement and surplusage, (p. 119).</p> <p>3. Husband and Wife — Torts of Wife — Liability of Husband.</p> <p>A husband is liable for slander by his .wife, whether present or not, not withstanding the married women’s separate estate act. (P’. 121).</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by George W. Whorley against the Raleigh Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Eminent Domain — Public Improvements — Changing Grade of Street — Damages.</p> <p>If, by changing the grade line of one- of its streets, a municipality injure the property of an abutting owner, it is liable, (p. 131).</p> <p>2. Same.</p> <p>If the public have been permitted to use an open street on the natural grade, and to build on lots abutting thereon with reference to such natural grade, and the municipality thereafter improve the street and thereby cause injury to an abutting owner, it is liable, (p. 132).</p> <p>3. Municipal .Cokpobations — Public Improvements — Changing Grade of Street — Damages.</p> <p>If a municipality extends its Corporate lines so as to include territory which had. theretofore been laid off into building lots and streets, and thereafter permit such streets to be used by the public and later improves them, it thereby makes them public streets, and the municipality becomes liable for any injury to abutting lot owners occasioned by an alteration in the natural grade line of the street, (p. 131).</p> <p>4. Eminent - Domain — Public Improvements — Changing Grade of Street — Damages.</p> <p>The true measure of damages to a lot abutting on a street, occasioned by a change in the grade line of the street, is the difference between the value of the lot immediately before, and i1s value immediately after; the street improvement, legs any special or peculiar benefits to the lot because of the improvement of the street, but leaving out of account such general benefits as accrue to it in common with other property similarly situated, (p. 135). . ; . |</p> <p>5. Same — Public Improvements — Changing Grade of Street — Evidence.</p> <p>As an element affecting the value of his property, plaintiff may prove what will he the cost of any alterations in his property which have been rendered necessary, on account of the street improvement, to preserve it from further injury and render it fit for enjoyment, (p. 134).</p>

<p>Taxation — Sale for Taxes — Combination Between Bidders.</p> <p>An agreement between two or more persons, not general partners, who are competitive bidders at delinquent tax sales, that they will become partners in all lands that may thereafter be purchased by either of them, contravenes public policy, and will render void a tax deed acquired pursuant to such agreement.</p>

<p>1. Hasteb and Seevant — Injuries to Servant — iDeclaration—Con-tributory Negligence.</p> <p>A declaration, in an action to recover damages for injury to the servant from defective machinery • furnished by the master, is not bad on demurrer, as disclosing contributory negligence because the rhings making the machinery defective were evidently visible, when it does not appear that those things were palpably noticeable in relation to unsafe use of the machinery. (P. 142).</p> <p>2. Same — Injuries to Servant — Assumption of Rislc — Promise to Remove Danger.</p> <p>Where the servant refrains from abandoning a dangerous service in consequence of assurances by the master that the danger shall be removed, the duty of the master to- remove the danger is manifest and imperative, and he is not in the exercise of ordinary care until he makes good the assurances. In such case, the servant assumes the risk only when the danger is so patent that a reasonably prudent man would not incur it. (p. 142).</p> <p>3. Trial — Instructions—Curing Error.</p> <p>Although an instruction standing alone may have been misleading, the verdict of the jury will not he disturbed on its account where the objection was removed by the giving of other consistent instructions, (p. 144).</p>

<p>Appeal from Circuit Court, Brooke Comity.</p> <p>Bill by Nettie Carty against Hugh Carty. Decree for defendant, and complainant appeals.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill in equity by Gus Salinger against the North American Woolen Mills Company, and others. From a decree for defendant, plaintiff appeals.</p>

<p>1. Eminent Domain — Damages—Taking Less Than Entire Fee.</p> <p>Where a company, organized to transport natural gas, proposes to take by condemnation for the use of its pipe lines, and for building telephone and telegraph lines thereon, a right of way or easement, less than the fee, over the lands of another, the owner is entitled to such damages as will justly compensate him not alone for the estate or interest actually taken, hut also to damages to the residue, the fee in the whole tract, including therein the fee in that part of the tract covered by such right of way, beyond the peculiar benefits to he derived in respect thereto, from the work to he constructed. Construing section 14, chapter 42, Code 1906, and section IS, chapter 42, Code Suppl. 1909. (p. 1591.</p> <p>2. Tbux — Questions for Jury — Cfredibility of Witnesses.</p> <p>It is proper for the trial court, by instructions to the jury, to tell them that they are the judges of the weight and credibility that should he given the testimony of witnesses, but not what effect, if any, should be given by them thereto, (p. 161).</p> <p>3. Eminent Domain — Compensation—Excessive Damages.</p> <p>The verdict of the jury, awarding defendant fourteen hundred dollars, for the estate or interest in his land taken by plaintiff, and damages'io the residue, is, on the evidence adduced on the trial in this case, tested by the rule of prior decisions governing the same, grossly excessive, and the judgment of .the court thereon is set aside and a new trial awarded, (p. 162).</p>

<p>Error to Circuit Court, Cabell County. ■</p> <p>Action by the Triumph Electric Company against the Empire Furniture Company. Judgment for plaintiff, and defendant brings error.</p>

Action by S. M. Varney and another party, partners under the firm name oí Varney and Evans, against the Hutchinson Lumber and Manufacturing 'Company. Judgment for plaintiffs, and defendant brings error.

<p>Error to Circuit Court, Jackson County.</p> <p>Action by G. 0. Burke against the County Court of Jackson County. Judgment for plaintiff, and defendant brings error.</p>

<p>Wxr.T,s — Construction—Nature of Estate Devised,.</p> <p>The will in this case gives Sarah Clifford only an estate for life, with the remainder to testator’s children vesting at his death.</p>

<p>Appeal and Error — Second Appeal — Law of the Case.</p> <p>This is a review of this case on writ of error to a judgment rendered in a second trial. There was also a review by this court of the first trial, reported in 61 W. Va. 9. The law governing this review of the case will be found in the syllabus to, the former review.</p>

<p>1. Sales — Rescission—Unreasonable Delay.</p> <p>Delay for thirty days hy the buyer, to rescind the purchase of a sow bought for breeding purposes, under a guaranty that she is pregnant, and giving him the right to rescind the sale if she should afterwards prove not to be pregnant, is not unreasonable delay, (p. 193).</p> <p>2. Same — Propositions of Settlement — Acquiescence by Buyer.</p> <p>Mere silence aud failure to reply to a written proposition, when there is no legal duty to reply, does not amount to acquiescence therein, so as to constitute an agreement between parties, (p. 193)!</p>

<p>Error to Pirouit Court, Burbour County.</p> <p>Action by John L. Woodford and another, partners, against the Baltimore & Ohio Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

Action by the Cincinnati Gas Transportation Company against John Kress and others to condemn right of way. From the judgment, plaintiff brings error.

<p>Appeal from Circuit Court, Monroe County.</p> <p>Bill in equity by W. A. Davidson, administrator, against George T. Davidson and others. From a decree appointing a receiver, C. E. Lynch appeals.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by Susan C. Lang against George W. Lang and others for alimony. D.ecree for (’defendants, and complainant appeals.</p>

. Action by W. J. Cox against W. R. Orndorf. Erom the order setting aside the verdict and awarding a new trial, the defendant obtained a writ of error. , „

Action, by K. E. Hanger and others, partners under the firm name of Hanger Bros., against the Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiffs bring error.

<p>Appeal from Circuit Court, Nicholas County.</p> <p>Bill by Nellie Shepherd against John H. Craig. Decree for complainant, and defendant appeals.</p>

<p>1.• Dower — Release—Effect of Deed.</p> <p>A deed, signed, sealed and acknowledged by a husband and wife, wiiicb, not naming the wife in tbe body thereof, makes her a grantor by the designation of wife of the other grantor, is the •deed of the wife as well as of the husband and relinquishes her dower in the land. (p. 223).</p> <p>2. Acknowledgment — Sufficiency of Certificate — Abbreviation. '</p> <p>Abbrevation of the word “wife” thus, “wi”, in a certificate of the privy examination of a- married woman, respecting her execution of a deed, and her acknowledgment thereof, does not invalidate the certificate, (p. 224j.</p> <p>3. Cancellation oe Instruments — Bona Fide Purchaser — Effect of Purchase in Good Faith.</p> <p>Fraud in the procurement of a deed is unavailing in a suit to set it aside against a bona fide purchaser without notice and for value, (p. 22-1).</p> <p>4. Acknowledgments-Evidence to Impeach.</p> <p>Denial of the execution of a deed and acknowledgment thereof, unaided otherwise than by the facts that the signature is by mark and the party could write and denies having ever signed any papers by mark, is not sufficient to overcome a certificate of acknowledgment, nearly thirty years old and pronounced genuine by the officer who certified the acknowledgment, (p. 224).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by the Briar Creek Railway Company against the Kana-wha 'Central Railway Company. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Mellólas County.</p> <p>Charles Gebhart was convicted of arson, and brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by Fannie J. Fuller and others- against Bettie F. Edens. Decree for plaintiffs, and defendant appeals.</p>

<p>1. Winns — Construction—General Rules — Intention of Testator.</p> <p>In construing wills, words will not be interpolated, except when necessary to effectuate the manifest intention of the testator. Inference or conjecture is no justification; nor is the probability that if testator’s attention had been called to a particular event he would have provided against it, justification for interpreting words to give the will that effect. The intent must he gathered from, the will taken in all its parts, giving every word and expression its due weight and effect, if not inconsistent with the whole will when taken together, (p. 255).</p> <p>2. Same — Construction—Supplying Technical Words.</p> <p>Supplying technical words is only permissible when the intention to be aided thereby is apparent beyond reasonable doubt, the purpose being to develop a defectively expressed intent. If from the words employed the testator’s intent can not be gathered, words can not be supplied to disclose that intent, for it may not have been his intent, (p. 255).</p> <p>3. Same — Construction—General Mules — Intention of Testator.</p> <p>It is only where the will affords no satisfactory clue to the real intention of the testator, that resort may be had to legal presumptions and rules of construction, and then such rules must yield to the apparent intention of the testator, expressed in his will, for the true inquiry is not what the testator meant to express, but what the words he used to express, (p. 256).</p> <p>4. Same — Construction—Estate Conveyed — “In Case of.”</p> <p>After the death of his wife, the life tenant, testator devised to his two sons, James and John, his farm to be equally divided between them; but in a subsequent paragraph provided that, “In case of the death of either of my sons above named I will and bequeath that the remaining son living shall have and hold in his own right the whole of the above named bounded two tracts of land.”</p> <p>According to the plain intent, the words “In case of” should be construed to mean “at” or “upon”; and the whole phrase “In case of the death of” as referring to an event to occur subsequently to the death of the testator, (p. 258).</p> <p>5. Same — Construction—Estate Conveyed — Fee Simple — Joint Tenancy.</p> <p>The will expressly limiting the estate devised to James and John, to the survivor, they did not, on the death of the testator, by virtue of section 8, chapter 71, Code 1906, severally take fee simple estates in the land devised; nor by virtue of section 18 of said chapter, as tenants in common; but a joint remainder in fee simple, subject to the right of survivorship, with only the rights and subject to all the limitations attaching to estates in joint tenancy, as at common law. (.p. 260).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by William Spindler against A. M. Hamilton. Judgment for plaintiff and defendant brings error.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Arthur F. Bennett and another against F. M. Booth. Decree for defendant, and complainants appeal.</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bill by A. J. Keatley and others against the County Court of Summers County and others. Decree.for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Brooke County.</p> <p>Action by Crawford Bassford, administrator, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for defendant and plaintiff brings error.</p>

<p>1. Costs — Érorr in Taxation — Motion to Retax.</p> <p>An execution on a judgment for costs will not be quashed because the taxation is erroneous. The error must be corrected by motion to retax the costs, (p. 284).</p> <p>2. Same — Execution tor Costs — Amendment.</p> <p>The circuit court has no authority to amend an execution therein issued on a judgment for costs rendered by the Supreme Court of Appeals, if the proposed amendment involves a change in the taxation of the costs as certified from the appellate court, (p. 284).</p> <p>3. Same — Taxation—J urisdiclion.</p> <p>The jurisdiction to retax costs belongs to the court in which, they are recovered and originally taxed. Proceedings to retax must as a general rule be heard before the court of which the clerk, who-taxed the costs is an officer, (p. 285).</p> <p>4. Same — Costs of Appeal — Taxation.</p> <p>When for any reason there remains an undecided question regarding costs after decision on appeal, the court by which the judgment in relation to those costs was rendered is the court to determine it. (p. 285).</p>

<p>X. Specific Performance — Proceedings—Sufficiency of Evidence.</p> <p>A case in which, the evidence is sufficient to establish the loss, and the contents of a title bond, entitling plaintiffs to specific execution thereof, (p. 289),</p> <p>2. Vendor and Purchasers — Requisites and Validity of Contract— Definiteness.</p> <p>The practical location of land sold by title bond, by survey and plat thereof, directed by the vendor or his authorized agent, and possession by the vendee in accordance with such survey and plat, will, as a general rule, be sufficient to give the requisite definiteness to a contract, though it may be otherwise defective, (p. 291).</p> <p>3. Specific Performance — Proceedings—Sufficiency of Evidence.</p> <p>■ A case in which the evidence, showing payment of all the purchase money, is held sufficient to establish that fact, and to entitle plaintiffs to specific execution of a contract for the sale and purchase of the land called for by the contract, (p. 292).</p> <p>4. Vendor and Purchaser — Bona Fide Purchasers — Notice—Possession of Premises.</p> <p>The defense of innocent purchaser is not available as a defense against one in actual' possession holding under a prior equitable title, from the same vendor. The law imputes to such subsequent purchaser knowledge of all the rights which an inquiry of the purchaser in possession or those holding under him might disclose, (p. 293).</p> <p>5. Specific Performance — Proceedings—Laches.</p> <p>The defense of laches is not good in a suit for specific performance, against one who has held possession of the land called for, under his contract of purchase, though many years may have elapsed between the date of the contract, and possession under it, and the date of the institution of the suit. (p. 295).</p>

Bill by G-lenn J. Arnett and' others against the Fairmont Trust Company and others. Decree for plaintiffs, and defendants appeal.

<p>1. Partnership — Action for Dissolution — Pleading—Reply.</p> <p>An answer to a bill for dissolution of a copartnership, claiming a larger share in the firm than the hill admits,’ not merely a large value of an admitted share, is in substance and effect a cross-bill, to which a special reply may properly be filed, (p. 308).</p> <p>2. Same — Share m Profits — Presumptions.</p> <p>Persons entering into a copartnership relation, without an agreement as to their respective interests in the firm, are presumptively equal partners, (p. 311).</p> <p>3. Same — Existence—Sufficiency of Evidence.</p> <p>Omission of the name of one of the members of a firm from affidavits made and deeds executed and accepted by other members thereof, purporting to. name all the members, do not as evidence prevail over constant and uniform recognition in other respects of the membership of tlie omitted person, on an issue as to whether he is a member and the extent of his interest, (p. 310).</p> <p>(Robixson, Judge, dissents).</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Bill in equity by Harry E. Clark and other against the Har-pers Ferry Timber Company and others. Ffom a decree for plaintiffs, defendants appeal.</p>

<p>1. Appeal AND ERROR — ■Record—Certificate of Evidence.</p> <p>A vacation order of a judge certifies the presentation to him of hills of exception and a transcript oi all the evidence, and certifies that for identification the bills were numbered as bills of exception by a number to each, and that the certificate of evidence was marked “Certificate of Evidence,” and certifies that the bills, were signed, and that the certificate of evidence was also signed by the judge, and the order says that bills and certificates were ordered to be made a part of the record. The bills refer to the “Certificate of Evidence” as part of them. The '“Certificate of Evidence” is part of the record, and brings the'evidence before this Court, (p. 318).</p> <p>2. HusbaND and Wife — Action Toy Wife — Alienation of Husband's Affections.</p> <p>A wife, though the husband be living, has right of action in her sole name for wrongful alienation of her husband’s affection causing his separation from her. (p. 319).</p> <p>3. Same — Alienation of Husband’s Affections — Liability of Father.</p> <p>A father is liable to his son’s wife for alienating the affection of the son from his wife, and causing him to separate from her, if the father is moved by malice towards the wife and without good faith and honest purpose and good motive for the welfare of his son. If his action is without malice and springs only from what he honestly believes to be necessary for the welfare of his son, he is not liable, and the presumption is that he acts without malice and with such good motive until the contrary appears, and the burden is on the wife to show malice and absence of such good motive, (p. 322).</p>

On settlement between S. P. Smith, sheriff, of Kanawha county, and the county, district, and the district school' funds,H. E. Nease, as citizen and taxpayer, intervenes. From ' a judgment of the circuit court on certiorari, to review the judgment of the county court, Nease brings error, and the sheriff cross-assigns error.

<p>1. Appeal and Error — Review—Harmless Error — Exclusion of Juror.</p> <p>The exclusion of a juror for insufficient cause is not reversible error, if the twelve who are finally chosen to try the case are legally qualified, (p. 349).</p> <p>2. Evidence — Documentary Evidence — Attested Copy.</p> <p>An attested copy of a deed from the records of a county court clerk’s office in this state, is primary evidence, and has the same probative force, to prove title, that the original would have, if it had been introduced for that purpose, (p. 350).</p> <p>3. Same — Documentary Evidence — Parol Evidence Affecting Writings.</p> <p>If such copy purports to be signed and sealed, and contains a scroll, or pen-flourish, following the name, or the official designation, of the grantor, it will be presumed that it was placed there by the recorder to represent a scroll which had been placed on the original, as and for a seal. Parol evidence is not admissible, in the absence of any charge of forgery, to prove that such scroll, or pen-flourish, was not intended by the recorder as a copy of the original, (p. 350).</p> <p>4. Same — Documentary Evidence — Authentications—Presumption.</p> <p>A deed for land, made before the formation of this state, and recorded in the county wherein the land lies, for ten years or more before the bringing of a suit concerning the land, purporting on its face to have been made by a commissioner of delinquent and forfeited lands, under judicial proceedings in a court of Virginia, and purporting on its face to convey the title of certain persons therein, under such judicial proceedings, is, by sec. 2, ch. 76, Acts 1907, made prima facie proof of the grantor’s authority and of the actual passing to the grantee, of the title ol such persons as it purports to pass. (p. 351).</p> <p>5. Deeds — Construction—Questions of Law or Fact.</p> <p>Whether a written instrument has the effect to pass title, is a question of law for the court. It is error to submit such question to the jury for their determination, (p. 352).</p> <p>6. Tbial — 'Waiver of Objections to Reception of Evidence.</p> <p>If, in the trial of a case, improper testimony has gone to the jury over objection, and the court, before the jury retires, offers to strike it out, and the party who objected to its admission resists such offer and the court thereupon allows the evidence to remain in the case, such party will be held to have waived the error, if any, in admitting the evidence, and will not be heard to complain in this Court, (p. 353).</p> <p>7. Deeds — Construction—Description of Property — Conflicting Descriptions.</p> <p>Where two inconsistent descriptions of land are given in a deed, one describing it as being a part of a certain larger tract, and the other describing it by metes and bounds, which carries it outside of such larger tract, the latter description, being the ■ more specific one, will prevail, (p.353).</p> <p>8. Ejectment — Proceedings■—Verdict.</p> <p>If a plaintiff in ejectment sues for his entire tract of land, and proves title, and the defendant controverts his title to a part of it only, and does not disclaim as to the residue, a general verdict for the defendant is erroneous. In such case the verdict should be for the plaintiff for so much of his land, at least, as was not actually controverted by defendant, (p. 354).</p> <p>9. Adverse Possession — Operation and Effect — •Constructive Possession.</p> <p>In the absence of actual adverse possession, constructive possession follows the older and better title to the full limit of the claimant’s boundaries, (p. 355).</p> <p>10. Same — Admisión of Evidence..</p> <p>If a portion of the land, claimed under the older and better title, interlocks with a junior grant, and there has been no actual adverse possession, for the statutory period, within such interlock, it is error to admit evidence of the junior claimant’s possession within the boundaries claimed by him, outside of the interlock.</p>

<p>1. Mines and Minerals' — Oil Lease — Construction.</p> <p>When a lessee for oil and gas producing purposes segregates the lease by assigning to another all rights thereunder as to a distinct parcel of the land, a .discovery of oil on the part assigned will give the lessee a vested right to produce oil on the part retained, though he has taken no possession of that part. (p. 359).</p> <p>2. Same — Vested Rights of Lessee — 'Waiver.</p> <p>Where a lessee acquires a vested right to produce oil from land, but never takes actual possession of the premises, it may be showu that he has abandoned the right by proving his intention to do so from any facts and circumstances evidencing a voluntary waiver of the same, (pi 360).</p> <p>3. Same — Oil Lease — Abandonment by Lessee.</p> <p>A failure for ten years, on the part of a lessee holding a vested right to produce oil from land, to enter on the premises and undertake a fulfillment of the implied covenants of the lease which obligate him to operate the property,' during all of which time an adjoining well is producing oil and presumably draining the neglected premises, sufficiently evinces an intention of the lessee to abandon his right, (p. 360).</p> <p>4. Equity — Laohes—Demurrer.</p> <p>A lessee, having a vested right to produce oil from land, who takes no possession and does nothing on the premises for ten years, and then, while a subsequent lessee is operating the property, remains silent as to his rights for seven years more, is so clearly barred by laches from asserting his neglected rights that his bill in equity showing the delay and silence will be dismissed on demurrer, (p. 362).</p>

<p>Appeal from Circuit Court, Wyoming County.</p> <p>•Bill in equity by U. B. Buslrirk and another against Herbert W. Sanders and others. From a decree for defendants, plaintiffs appeal.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by James M. Jones against the Biverside Bridge Company. Judgment for plaintiff and defendant brings error.</p>

Suit by Ella M. Boal and another against Stuart Wood and others. From an order dismissing the bill on demurrer, plaintiffs appeal.

■ Action by Norman Compton Pleasants and another, infants, etc., against the Locomotive Engineers’ Mutual Life & Accident Insurance Association and others. Judgment for plaintiffs, and defendants William Compton and others bring error.

<p>Error to Circuit Court, Braxton County.</p> <p>Action by T. Marcellus Marshall against Ahab Stalnaker and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by A. G-. Rutherford against the City of Williamson. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by the American National Bank of Bluefield against Harold A. Ritz. From a judgment for defendant, plaintiff brings error.</p>

<p>Husband and Wrus — Gift by Husband to Wife — Presumption— Trust.</p> <p>Where a husband voluntarily transfers property to the wife, it will be presumed the transfer was a gift. A trust in favor of the husband will not be presumed. That can only be established by clear evidence.</p> <p>(Brannon, President, absent.)</p>

<p>1. Indemnity — To Bail — Validity.</p> <p>A bond to indemnify bail on a criminal recognizance is not void as against public policy, (p. 419).</p> <p>2. Bail — Criminal Prosecution — iRights of Sureties.</p> <p>Where the obligation of bail is assumed the surety becomes in law the jailer of his principal, the custody of him being but a continuance of the original imprisonment, the surety being stíbrogated to all the rights and means which the state possesses to make his control effective, (p. 420).</p> <p>3. Same — Criminal Prosecution — Arrest of Principal.</p> <p>Even without bail piece, which he may have by statute, the bail may exercise bis right at common law to arrest bis principal at any time for tbe purpose of surrendering bim, as an incident to bis engagement, (p. 420).</p> <p>4. Indemnity — To Surety — Release of Indemnitor.</p> <p>Where bail in disregard of his duty, and when required by a surety on a bond of indemnity taken by bim, negligently fails to arrest and deliver his principal into custody and negligently allows him to escape and be and remain a fugitive from justice, such surety will be discharged, and may on that ground defend any action on his bond by the bail against him. (p. 421).</p> <p>(Bhannon, Pbesident, absent.)</p>

<p>Titusxs — Resulting Trusts — Presumptions.</p> <p>Money of a wife invested in land in the husband’s name is presumptively a gift, and, in the absence of facts and circumstances rebutting the presumption, such as violation of a prior or contemporaneous agreement to take the title in the wife’s name, ignorance of its having been taken in the husband’s name, subsequent expenditure of the wife’s money in improvements thereon, an effort on her part to obtain the title after discovery of its condition, control of the property as her own against the husband, or the like, there is no resulting trust in her favor.</p> <p>(Beastnon,- Pkesident, absent.)</p>

<p>Appeal from Circuit Court, Eandolph County.</p> <p>Bill in equity by George 0. Clark, administrator, gaianst George 0. Clark and others. From a decree for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill in equity by William James against J. T. Piggott and others. From a decree for plaintiff,' defendants J. T. Piggott and others appeal.</p>

<p>1. Justices oe the Peace — Appeal—Dismissal.</p> <p>Irregularities and mistakes in the proceedings of a justice of the peace, in an action wherein he had jurisdiction of the subject matter and the parties, furnish no ground for dismissing an appeal, properly taken, to the circuit court, (p. 443).</p> <p>2. Same.</p> <p>A defendant who has appealed from the judgment of a justice, rendered against him in an action wherein the justice had jurisdiction of both the subject matter and the parties, can not dismiss his appeal over the objection of plaintiff, (p. 443).</p> <p>3. Railroads' — Killing Stoclc — Question for Jury.</p> <p>In an action against a railroad company for the negligent killing of a horse, trespassing upon the company’s right of way, negligence is generally a mixed question of law and fact for the jury, and if circumstances are proven from which they may reasonably infer negligence, such, for instance, as that the horse could have been seen, dangerously near the track, by the engineer in charge of the train, for a distance of three hundred yards; that the speed of the train increased, and no effort was made to stop it until after the engine struck the horse; that the train was a light one making only a half a load for the engine, the case should go to the jury. (p. 445).</p> <p>4. New Tbial — Grounds—Sufficiency of Evidence.</p> <p>The jury are the judges of the credibility of witnesses and the weight to be given to their testimony, and the court has no right to set aside their verdict founded upon conflicting testl-mony, provided there is sufficient evidence to support it, and it he not contrary to the overwhelming weight thereof, (p. 445).</p> <p>5. Railroads — Killing Stock — Contributory Negligence.</p> <p>Plaintiffs negligence in permitting his horse to stray upon a railroad trade, does not relieve the railroad company’s servants from the exercise of reasonable care to avoid injuring him. (p. 446).</p> <p>6. Same — Killing Stock — Duty of Engineer.</p> <p>It is the duty of the engineer to keep a reasonable lookout for dumb animals trespassing on the tracks, (p. 447).</p> <p>7. Same — Killing Stock — Negligence.</p> <p>The failure to ring the bell or sound the whistle, to frighten animals off the track, is not, per se, negligence, (p. 447).</p> <p>(Brannon, President, absent).</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by Mary E. Male against John H. Moore. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Wyoming County.</p> <p>•Bill by Joseph P. Oneal and others against L. T. Stimson arid others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. INteuest — When Allowable.</p> <p>As a general rule, where plaintiff’s demand is liquidated, or if unliquidated, can be readily ascertained by computation, interest thereon should be allowed, if the. demand be for work done or material furnished, from the date the labor is done or material furnished, or from the date when by the terms of the contract payment should have been made. (p. 459).</p> <p>2. Same — Implied Contract.</p> <p>When there is no express contract to pay interest, there is generally an implied contract to do so. (p. 459).</p> <p>S. Same — Payment of Principal — Action to Recover.</p> <p>Where the contract or obligation expressly stipulates for the payment of interest the interest becomes an integral part of the debt, and payment and acceptance of the principal sum will not, as a general rule, defeat a subsequent action to recover the interest not paid, carried by the'contract, (p. 459).</p> <p>4. ■ Same — Recovery—Implied Contract.</p> <p>But where i.he contract does not so specifically provide for payment of interest, "but the right thereto is by an implication, interest is considered as damages, and not as forming the basis of the action, and is recoverable only along with the principal sum and as an incident thereto, and if the principal sum be accepted in settlement the right to the damages is lost and no separate subsequent action can be maintained therefor, (p. 459).</p> <p>5. AocoRd AND Satisfaction — Balance Due for Interest.</p> <p>The old common law rule applied'in Nixon v. Kiddy, 66 'W Ya. 355, that payment by a.debtor and receipt by the creditor of a less sum than is due upon an undisputed liquidated demand is not satisfaction of the debt, although the creditor agrees to accept it as such, is inapplicable to a balance claimed for interest due by way of damages on an implied agreement to pay interest, (p. 464).</p> <p>6. Same — Action to Recover — Payment of Principal.</p> <p>The fact that receipt of payment without interest may have been done under protest of a creditor will not change the legal effect of his act on his right to maintain a subsequent separate suit to recover the interest, (p. 465).</p> <p>(Bkannon, Pkesident, absent).</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Action by Gr. W. Mallonee against D. B. Taylor. Judgment for' plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Rill by John W. Waldron against W. M. Ritter Lumber Company. Decree for plaintiff, and defendant appeals.</p>

Bill in equity by James E. Williams and another against' Beeson H. Brown and others. Prom the decree, defendants Brown and another appeal.

<p>Error to Circuit Court, Taylor County.</p> <p>Action by the Security Bank Note Company against Samuel W. Sbrader. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Witnesses — Competency—Transactions with Decedent.</p> <p>A party to a suit is competent to testify in his own behalf, against a board of education, in relation to a personal transaction between himself and a deceased member of such board, (p. 481).</p> <p>2. Schools and School Districts — Board of Education — Appointment of Agent.</p> <p>A board of education, at a regular meeting, may lawfully appoint one of its members its agent to procure necessary ground on which to erect a public school house; and, if such agent, acting within the scope of his authority, procure a lease of ground; upon reasonable terms with a landowner, he thereby binds his principal, (p. 482).</p> <p>3. Principal and Asent — Authority of Agent.</p> <p>Authority to an agent to procure a lease of ground carries implied power to agree with the landowner upon the terms of the lease, (p. 482).</p> <p>4. Schools and School Districts — Contracts by Agent — Ratification.</p> <p>If a board of education erect a school house upon ground, acquired for it by its duly, appointed agent, and use it for public school purposes for a term of years, it thereby impliedly ratifies the contract made by its agent with the landowner, provided its terms be such as the board itself could lawfully make. (p. 482).</p>

<p>Appeal from Circuit Court, Cabell Comity.</p> <p>Bill by C. B. Taylor against Samuel Bellville, trustee, and others. Decree for defendant, and plaintiff appeals.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by J. Lee ILarne against Henry G.. Pike. Judgment for plaintiff and defendant brings error.</p>

<p>1. Pkincipal and SURETY — Creation of Relation — Execution of Written Instrument.</p> <p>Sureties in a bond are not released by omission of tbe principal to execute it, if he is bound by law or a collateral contract, recited in the bond, for the performance of the duty recited in the condition thereof, (p. 497).</p> <p>2. Same — Creation of Relation — Execution of Writing.</p> <p>Such technical incompleteness in the bond, under such circumstances, imposes upon the obligee no duty of inquiry as to whether it was delivered by the sureties on condition that the principal should execute it, nor to require him to do so; since the sureties suffer no substantial prejudice from such omission, (p. 498).</p> <p>3. Evidence — Admission—Nature and Form.</p> <p>Receipts, statements and other evidences of liability in the hand writing of the principal are admissible evidence against the sureties and prove prima facie liability on their part. (p. 500).</p> <p>4. Samjs — Best and Secondary Evidence — Relation of Witness to Subject Matter.</p> <p>Relation of a witness to the subject matter of his testimony, such as his incumbency of an office in a private corporation on whose behalf, as a party to the suit, he is to testify, may be shown by his oral evidence, (p. 501).</p>

<p>1. Carriers — Carriage oy Goods — Connecting Carriers.</p> <p>Where one carrier receives goods for transportation part of the way to destination, and delivers the goods at the end of its carriage to another carrier for carriage to destination, the contract is several and there may be a suit only against the carrier that is liable for delay of transportation, (p. 503).</p> <p>2. Same — Carriage of Goods — Belay—Action—Damages.</p> <p>Where a written complaint is filed in an action before a justice against a carrier for delay- of transportation of goods, in order to recovery, not of general, but special damages resulting from such delay, there must be in the complaint some specification of the grounds for special damages; and there must also be notice to the carrier, at the time of shipment, of circumstances calling for speed of transportation, (p. 504).</p> <p>3. Same — Carriage of Goods' — Delay—Care Required.</p> <p>The rule that a carrier is an insurer of safe delivery of goods . committed to it for transportation does not apply to liability for delay of transportation. In such case the carrier is not bound to the highest, possible or utmost care for rapid transportation, but only for reasonable and ordinary care and diligence to avoid delay, (p. 506).</p> <p>4. Same — Carriage of Goods--Limitation of ■'Liability — Delay.</p> <p>A bill of lading for goods shipped given by a carrier fixing their value, and providing that the carrier shall in no event be liable beyond that value, relates to loss of the goods, and does not preclude recovery for delay of transportation or fix amount of damages for delay, (p. 506).</p>

<p>Appeal from Circuit Court, Marion Count}!.</p> <p>Bill in equity by Bessie D. Oartright against Lowry F. Cart-right and others. F'rom a decree for defendants, plaintiff appeals.</p>

<p>■ Appeal from Circuit Court, Randolph County.</p> <p>Bill .in equity by Samuel M. Kendall against George W, Phares and others. Prom a decree for defendants, plaintiff appeals.</p>

<p>1. Divoisce — (Decree—Setting Aside.</p> <p>A decree of divorce a mensa or a vinculo, based upon some ground authorized by sections 5 and 6, of chapter 64, Code 1906, 'alleged in the bill and supported by proof, pronounced after process duly served, and default of appearance by defendant, and which by section 8 of said chapter, canpot be upon bill taken for confessed, cannot at a subsequent term of the court be set aside upon motion by defendant pursuant to section 5, chapter 134, Code 1906. Such decree is final, and so far as based on the facts alleged and proven cannot be re-examined except upon appeal to this Court by the party claiming to be aggrieved thereby, (p. 524).</p> <p>2. Appeal and Error — Decree—Setting Aside.</p> <p>Nor may such a decree be set aside after the term at which it was pronounced upon a petition or bill by defendant in the same court on the ground that the evidence on which the same was predicated is false or insufficient, (p. 526).</p> <p>3. Divoece — Decree.</p> <p>By section 13, chapter 64, Code 1906, “When a divorce from bed and board has been decreed for abandonment, or desertion, or other cause, and two years shall have elapsed from the bringing of the suit wherein such decree is entered,” and such decree has not been revoked, as therein .provided, and there has been no reconciliation, the injured party on his application to the court pronouncing the decree, alleging and showing such facts; “and the production of satisfactory evidence, taken 'in support of such application” is entitled to a decree of “divorce from the bonds of matrimony”; and the provision of said statute, giving the court authority, upon such application to read and consider the evidence in the cause taken and filed in the former hearing, will not justify the court on such application, in deny ing the appellant a decree of'absolute divorce, (p. 527).</p>

<p>1. Appeal and Error — Dismissal—Moot Question.</p> <p>An appeal from a decree setting aside conveyances as having been made with intent to hinder, delay and defraud creditors cannot be dismissed on the motion of the appellee, over the objection of the parties to the deeds, as involving only moot questions, on proof of payment of the debt by the grantee and release of the decree by the creditor, subsequent to the date of the decree, (p. 530). ' '</p> <p>2. Bills and Notes — Negotiable Note.</p> <p>The defense of set-off is not applicable to a negotiable note, transferred for an adequate consideration before maturity, even though the transferree purchased the note with notice of the claim of set-off. (p. 531).</p> <p>3. Fbaudulent Conveyances — Adequate Consideration — Burden of Proof.</p> <p>A grantee in a deed, charged with having obtained it in fraud of the rights of a creditor, must clearly prove payment of a fair and adequate consideration for the property, after the prior indebtedness to the attacking creditor has been shown, else the charge of fraud will be sustained, (p. 532).</p> <p>4. Same — Setting Aside — Confidential Relations.</p> <p>A deed made when no unsecured indebtedness is shown to have existed, and long before the debt of the assignor of the attacking creditor was contracted, will not be set aside as fraudulent merely because the parties' thereto were closely related and the deed was withheld from record until after such debt was contracted, (p. 532).</p>

<p>1. Exbcutoiís Aíro AdministRators — Actions on Policies — Parties— Joinder of Plaintiffs.</p> <p>A partnership is composed of several members. One dies, but the partnership is not closed, and the share or assets of the decedent is not withdrawn, hut the firm business goes on in the firm name as before, his administrator acting as a copartner. In this state of things a fire insurance policy, after such death of a member, is issued in the name of the firm insuring a house belonging to it, though the legal jfitle is in the members as individuals. The administrator may join the other members in a suit in the names of all as partners on the policy to recover the loss from destruction of the house by fire. It is no misjoin-der of plaintiffs, (p. 534).</p> <p>2. Insurance — Avoidance—Ownership of Property.</p> <p>A lot of land is conveyed to a number of persons in their individual names, but with intention to be used in the business of a partnership, and by them put into the partnership business and used in it, the firm in possession of and using the lot and house on it in its business. One of the partners dies, his share of the naked legal title being in his heirs. After his death the house is insured against loss by fire in the name of the firm. There is here no violation of a clause in the policy that “if the interests of the assured in the property he not truly stated herein” * * or “if the interests of the assured he other than unconditional and sole ownership,” the policy shall he void. And the firm has an insurable interest, (p. 535).</p> <p>3. Same — ‘'Insurable Interest” — Partnership Real Estate.</p> <p>Heal estate acquired for partnership with partnership means and used in its business gives the partnership an insurable interest to warrant a policy insuring it against loss by fire. (p. 535).</p> <p>4. Same — Insurable Interest — Equitable Title.</p> <p>An equitable title to real estate gives an insurable interest to warrant a policy in the name of its owner insuring it against loss by fire. (.p. 536).</p> <p>5. Same — Proofs of Loss — 'Waiver■—Denial of Liability.</p> <p>Denial by an insurance company of liability, on other grounds, within the time allowed for furnishing preliminary proofs of loss, is in law a waiver of the conditions of the policy requiring such proof, (p. 538).</p>

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

Suits in equity by S. A. Moore against O. C. Davis and others and by Isaac -J. -Coontz, administrator, against O. C. Davis and others. From a decree for plaintiiifs, defendants O. C. Davis and another appeal.

<p>1. Intoxicating Liquors- — Licenses—Assignments—Statutory Provisions.</p> <p>No assignment oí a druggist’s license will protect tlie assignee thereof in malting sale of spirituous liquors, unless first assented to on proper application by the tribunal, county court or municipal authorities, authorized to grant the original license, as provided by section 37, chapter 32, Code 1906, and other provisions of said chapter pertaining thereto. These statutes are mandatory and strict compliance therewith is required, (p. 551).</p> <p>2. Same — Licenses—Assignments.</p> <p>An endorsement of a transfer on a druggist license previously granted by a county court, by the clerk thereof, without previous authority of such -court lawfully given, is void; and the subsequent grant and confirmation of such transfer by such court, though regularly and lawfully done on proper application, will have no retroactive effect to protect the assigned -of such license against the consequences of his prior unlawful act in making sale of spirituous liquors, (p. 553).</p> <p>3. Same — Offenses—Sales by Druggists.</p> <p>Neither a druggist, nor registered pharmacist, not a licensed druggist, can under the laws of this state, lawfully sell spirituous liquors, even upon the prescription of a physician, without a state license therefor, as required hy section 1 of chapter 32, Code 1906. (p.555).</p> <p>4. Same — Criminal Prosecution — Admissibility of Evidence — Intent.</p> <p>When hy statute, as in this state, an act is made an offense under the liquor laws without regard to the intent with which it ,is done, evidence on the subject of intent is not material, and on the trial of one charged with a violation of such statute, there is no error in rejecting such evidence, or instructions to the jury thereon, (p. 557).</p>

<p>1. PRincipal and Agent — Rights and Liabilities of Third Persons —-Authority to Agent — Termination.</p> <p>On the termination of an agency, persons who have dealt with the principal through the agent may continue to do so, in the absence of knowledge of the fact, and, as to them, such acts of the former agent will hind the principal, (p. 560).</p> <p>2. Corporations — Powers and Liabilities — Representations by Officers and Agents.</p> <p>The general principles of the law of agency apply to private corporations and their officers, (p. 561).</p> <p>3. Same.</p> <p>To protect itself against subsequent action, on its behalf by an officer or agent, whose powers have been terminated, as to persons with’ whom it had previously transacted business through him, a private corporation must give notice of the termination of "his powers, unless actual knowledge thereof has otherwise been obtained by such persons. Mere publication of the fact in a newspaper is insufficient, (p. 561).</p> <p>4. SAME.</p> <p>If a thing done by an officer of a corporation is part and parcel of its general and ordinary business and he’ apparently has the general management and control of its business, it is within his apparent authority, and binds his principal in favor of a third person, relying in good faith upon such authority in the transaction, (p. 564).</p> <p>5. Principal and Agent — Authority of Agent — Ratification of Unauthorized Acts.</p> <p>A principal, benefited by an unauthorised act of his agent, can- . not deny the authority of the agent to do the act from which such benefit accrued, without first having restored the property or other thing so acquired, or paid to the injured party the value thereof, (p. 567).</p> <p>6. Same — Authority of Agent — Evidence—Testimony of Agent.</p> <p>On an issue as to the authority of an agent, he is a competent witness and may testify to acts done on behalf of his principal and the latter’s Knowledge thereof, in favor of a third person, even though such third person is not shown to have had knowledge thereof, (p. 568).</p> <p>7. Same — Liability to Third Persons — Authority of Agent — Apparent Authority.</p> <p>A third person may recover from a principal on a contract made by the agent, on proof of apparent authority in the latter, within the scope of which the act in question is included, (p. 570).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Ellen Rousey against E. L. Stilwagon. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Nicholas County.</p> <p>Bill by George Davis and others against J. J. Halstead and others. Decree for plaintiffs, and defendants J. J. and J. R. Halstead appeal.</p>

<p>Appeal from Circuit Court, Eandolph County.</p> <p>Bill in equity by Charles E. Mylius against the Massillon Engine & Thresher Company and others. From decree for complainant, the Massillon Engine & Thresher 'Company appeals.</p>

<p>1. Mortgages — Absolute Deed — Conveyance by Mortgagee.</p> <p>A mortgagee, though his mortgage he in form an absolute deed, may by like absolute deed sell and convey his mortgage rights and interests in the property conveyed, without the consent, or acquiescence, of the mortgagor, (p. 584).</p> <p>2. Suiskogation- — Rights of Second Mortgagee — Payment of First Mortgage.</p> <p>If at the time' of such mortgage the property conveyed be subject to a prior mortgage, or deed of trust, the mortgagee, by virtue of his junior mortgage, being the owner of the equity of redemption, may pay off the prior encumbrance or furnish the money or security therefor, and be subrogated to the rights of the creditor in such prior mortgage, (p. 584).</p> <p>3. Mortgagesof Redemption.</p> <p>Where a mortgagor subsequently to the mortgage by himself or his agent obtains from the mortgagee credit or additional loans of money, he will not be permitted, on bill filed, to redeem Bie property mortgaged, except on condition of repaying the debt originally secured and the debts and liabilities subsequently contracted, unless the interests of third parties have intervened so as to render it inequitable to deny such redemption, (p. 585).</p>

<p>Appeal and Errop. — Review—Conflicting Evidence.</p> <p>A verdict founded upon conflicting oral testimony, sufficient to sustain it, cannot be set aside, in the absence of controlling facts or circumstances, admitted or clearly established by proof.</p>

<p>Appeal and Ekbok — Review—Decree in Equity.</p> <p>A decree in equity, founded upon weighty inferences arising from well established facts and circumstances, will not be reversed for a mere preponderance against the finding in the number of witnesses, testifying as to a fact in issue.</p>

Bill by Grant C. Broomall and others against the North American Steel Company, and by H. A. Monahan who sues for the use, etc., against the North American Steel Company and others. The suits were consolidated. Decree for complainants, and the North American Steel Company and James B. Harris appeal.

Action by Selina Bloom against Joseph Bennett. Erom an order setting aside the verdict for plaintiff and granting a new trial, she brings error.

<p>Error to Circuit Court, Bandolph County.</p> <p>Action by L. H. Keenan against Thomas Donohoe and others. Judgments for plaintiff, and defendants bring error.</p>

<p>1. Pleading — Allegations in General — Conclusions or Matters of Fact.</p> <p>Counts in a declaration for damages to plaintiff’s rights as a user of a river from the operation of a boom by a chartered company, which rest the claim of injury on the charge merely that defendant negligently and unlawfully stopped up> the river and caught so great an accumulation of logs -that the boom broke, are bad for not averring wherein lay the negligence and unlawfulness of the ordinarily lawful acts by a chartered boom company in stopping up a river and catching a great accumulation of logs. (p. 603).</p> <p>2. Navigable Waters — Right, to Use — Boom Company.</p> <p>Under ordinary circumstances a boom company has no right to use all of the surface of the river below its boom for rafting purposes to the exclusion of transportation by others; and if one is unreasonably kept from the use of the river by the boom company in this particular he may have action for the injury, (p. 604).</p> <p>3. Appeal and Error — Disposition of Cause — Reversal—Rulings on Pleadings.</p> <p>When a demurrer to faulty counts in a declaration has been overruled, and at the trial evidence enhancing the damages has been admitted under no' good count, a judgment so partially resting on the bad counts must.be reversed, (p. 605).</p> <p>4. Navigable Waters' — Right to Use — Statutory Provisions.</p> <p>Code 1906, ch. 54A., sec. 28, does not insure- damages regardless oí negligence or unlawful act by the boom company, to individuals using tlie river for transportation, (p. 606).</p> <p>5. Damages- — Measure—Injuries to Property — Rental Value.</p> <p>Rental value is a proper measure in ascertaining damages for loss by delay in tbe operation of a mill. (p. 607).</p>

<p>Specific Performance — Proceedings—Sufficiency of Evidence.</p> <p>Specific execution of an alleged contract with, the widow, to divide and partition the personal estate of a decedent otherwise than according to the law of descents and distribution, in consideration of the conveyance by the heirs to her of the homestead, denied for failure of proof of such contract (p. 610).</p> <p>Executohs and Administrators — Accounting—Commissions.</p> <p>If a fiduciary has not, within six months after the end of any year after his qualification, laid before a commissioner of accounts, a statement of his receipts ’ for such year, or has not within such time laid such statement before a commissioner, who in a pending suit may have been ordered to settle Ms accounts, as provided by section 7, chapter 87, Code 1906, he shall be allowed no commissions. The statute is mandatory, (p. 610).</p> <p>Partnership — Actions—Judgment—V alidity.</p> <p>The judgment of á justice in favor of a firm, suffered by default, is not void, and subject to collateral attach, because the names of the individuals composing the firm have not been set forth in the summons, as provided by section 25, chapter 50, Code 1906. (p. 611).</p> <p>Justices of the Peace — Judgment—Yalidity.</p> <p>The following entry in the docket of a justice: “Peb’y- 19, 1908, time for trial; the plaintiff appeared; defendant did not appear, and after waiting for some time plaintiff claimed judgment for the amount of his claim and interest thereon,” constitutes no judgment, and is void, as a lien on defendant’s land, (p. 012).</p>

<p>Pbinoipal and Surety — Action -for Damages — Bond,.</p> <p>If after judgment for damages recovered against a retail liquor dealer and Ms landlord, under section 26, chapter 32, Code 1906, known as the civil damage act, such Judgment, interest and costs, as well as the costs of a suit in equity brought to enforce such judgment against the real estate of such landlord, be fully paid off and discharged by the surety on such liquor dealer’s bond, and his property be not actually seized or taken and sold to satisfy such judgment, interest and costs, such landlord cannot thereafter sue and recover upon such bond, damages by way of counsel fees, expended by him, in said action or suit, though he may have notified the principal and surety in said bond of the institution of such action, and of his intention to look to them for all damages, costs and expenses incurred by him therein.</p>

Information by Will E. Morris, Prosecuting Attorney of Harrison County, against E. Ottis Taylor and others to have the incorporation of 'the Town of Stealey Heights declared null and void. From a judgment dismissing the information and quashing the writ, the informant brings error.

<p>1. Justice of the Peace — Appeal—Answer—Jurisdiction.</p> <p>A defendant in an action before a justice of the peace, 'who has allowed judgment to he rendered against him by the justice, and taken an appeal to the circuit court, cannot file, in the appellate court, the answer, prescribed by clause XII. of section 50 of chapter 50 of the Code, showing the title to real estate is involved in the action or will be drawn in question. To avoid the jurisdiction, he must file such answer while the case is in the justice’s court, (p. 630).</p> <p>2. Same — Appeal—Jurisdiction.</p> <p>On an appeal from the judgment of a justice, the jurisdiction of the appellate court is no broader than that of the justice, as regards the. subject matter of the action. On such an appeal, questions of title to real estate cannot be hea¡rd and determined further than the justice was authorized to hear and determine them. (p. 632).</p>

<p>1. Taxation — Tax Sales — Verification of Delinquent List.</p> <p>A list of delinquent lands must have the affidavit required' by statute when acted on by the county court; otherwise a tax sale and deed resting on it are void. An affidavit made afterwards will not do. (p. 634).</p> <p>2 Same.</p> <p>Though an order of a county court approving a list of lands delinquent for taxes states that the list was verified by affidavit, yet if that list itself shows that it was not verified when acted on by the court, such list and a tax deed under it are void. Such order of the court is not conclusive of the fact. (p. 634).</p>

<p>Petition of the Standard Home Company for writ of mandamus against Stuart P. Reed, Secretary of State.</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Action by D. B. Evans, trustee, against Fannie B. Higgins. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Berkeley County.</p> <p>Action by Annie C. Miller against The Berkeley Limestone Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal and Error — Dismissal—QrounAs.</p> <p>A final judgment of a circuit court dismissing a declaration on demurrer over the express exception of plaintiff, brought here for review on writ of error, can not by affidavits be shown to be a judgment by consent so as to effect a dismissal of the writ of error.</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by Burman Bragg and others against the United Thacker Coal Company and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by C. L. Armentrout and others against R. E. Lee Armentrout and others. From the decree C. S. Armentrout appeals.</p>

<p>1. Fraudulent Conveyances — Transactions Invalid — Preferences —Right to Prefer Creditors.</p> <p>Intent-of an insolvent debtor to prefer one creditor over another does not constitute fraud justifying total annulment of a preferential deed, or the deprivement of the secured creditor of pro rata distribution with other creditors, (p. 666).</p> <p>2. Same — Transactions Invalid — Preferences—Statutory Provision.</p> <p>Where no actual fraud is charged or proven, section 2, chapter 74, Code 1906, does not avoid a deed intended as a preference in toto; it only avoids it as a preference, and thereby converts it into a general assignment for the benefit of all creditors, on suit brought for that purpose within the time limited by the statute, (p. 667).</p> <p>3. Same — Remedies of Creditors — Relief.</p> <p>In a suit by creditors to set aside or avoid such preferential deed, it is error, without actual fraud charged and proven, to deprive the preferred creditor of pro rata distribution in the proceeds of the sale of the property conveyed, (p. 667).</p> <p>4. Same — Remedies of Creditors — Parties.</p> <p>Where in such suit judgment creditors of a prior owner of a part of the real estate conveyed appear before the commissioner and assert and prove their liens on such property, it is error for the court, without requiring the judgment debtor to be brought in and made a party defendant, to decree such judgments in favor of the lienors, and a sale of such land to satisfy the same. Such judgment debtor is a necessary and proper party to such suit. (p. 668).</p> <p>5. Appeal akd ERbor — Appellate Jurisdiction — Amount—Decree for Oosts.</p> <p>A decree in such, suit in favor of the plaintiff’s attorney, for $75.00, to he paid out of the proceeds of the sale of the property .as a part of the costs, being insufficient in amount to give this Court jurisdiction, is not reviewable here. (p. 669).</p>

<p>1. Waters and Water Courses — Public Water Supply — Contracts —Construction.</p> <p>The rules of a water works company, adopted for the government of its relations with its patrons, do not become parts of a contract between it and a patron, made in terms and upon conditions not contemplated by such, rules and regulations, and radically different therefrom, (p. 672).</p> <p>2. Same.</p> <p>Such rules and regulations, to be applicable and effective, must enter into tjie contract by express or implied adoption at its inception. They cannot be engrafted upon a contract, complete in itself and independent of them, except by the assent of both parties, (p. 673).</p> <p>3. Damages — Exemplary Damages.</p> <p>To sustain a claim for punitive damages the wrongful act must have been done maliciously, wantonly, mischievously or with criminal indifference to civil obligations. A wrongful act done under a dona fide claim of right and without malice in any form constitutes no basis for such damages, (p. 673).</p>

<p>1. Master asd Servant — Dangerous Machinery — Warning.</p> <p>It is the duty of a master to give a minor servant operating a dangerous machine, inexperienced in its use, notice and warning- of danger in its operation, and such instructions as will enable the servant to realize the danger and avoid injury. If there is a peculiar or special danger the warning and instruction must be definite as to it. Such warning and instruction must be more definite , in the case of an inexperienced infant than in case of an adult, (p. 679).</p> <p>2. Same — Duty to Warn Servant — Delegation of Authority.</p> <p>The duty of the master to give his servant operating dangerous machinery notice of danger and instructions as to the manner of operating the machinery to avoid hurt to the servant is a duty resting on the master, and can not he delegated to another, so as to relieve the master from liability to the servant for injury arising from the negligence of the agent to whom the duty was delegated. So as to the duty to furnish safe machinery. In such cases the law of fellow servant does not apply, (p. 680).</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by Rebecca Hinkle and others against the North River Insurance Company. Judgment for plaintiffs, and the Insurance Company brings error.</p>

<p>1. Malicious Peosecution — Liability of Corporation — Acts of Agent.</p> <p>A corporation is liable for a malicious prosecution by its agent, acting within the scope of his employment and in furtherance of his company’s business, notwithstanding the company may not have expressly authorized or ratified his act. (p. 689).</p> <p>2. Same — Want of Probable Cause.</p> <p>Points 8, 10 and 16 of the Syllabus, Vinol v. Core, 18 W. Va. 1, approved and applied, (p. 689).</p> <p>3. ASSIGNMENTS — Malicious Prosecution — Wages—Security for Debt.</p> <p>A contract, purporting, to be a sale or transfer of wages due, held to be a collateral security for a loan; and whether it was made with intent to defraud, held to be a question for the jury, (p. 694).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by John W. Perry, Administrator, etc., against the Ohio Yalley Electric Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Jefferson County.</p> <p>Action by the Norfolk & Western Railway Company against John W. Stipp and others. Judgment for plaintiff, and John W. Stipp and I. W. Stipp bring error.</p>

<p>1. Exceptions, Bill of — Scope and Contents.</p> <p>A paper read as evidence to the jury, and described in a skeleton bill of exceptions in such manner as to make its identity reasonably certain, is properly a part of such bill of exceptions if it appears to be copied by the clerk into any part of the certified record. Its identity, and not its position in the record, is essential, (p. 704).</p> <p>2. Taxation — Forfeitures—Sate of Lands Forfeited.</p> <p>A recital in a decree, made in a proceeding to sell forfeited and delinquent lands, tliat the land was forfeited in the name of a certain designated former owner, is prima facie evidence of the fact of such forfeiture, and of the court’s jurisdiction to decree a sale of the land. (p. 705).</p> <p>3. Former Case Applied and Distinguished.</p> <p>The rule in Stoclcton v. Morris, 39 W. Ya. 432, discussed and applied, and also distinguished, (p. 706).</p> <p>4. Deeds — Operation and Effect — Evidence of Title.</p> <p>The recital in a deed that the grantor obtained title by a certain other deed, is not evidence against an adverse claimant, of such grantor's title, (p. 708).</p> <p>5. Former Decision Approved and Applied.</p> <p>Point 3 of syllabus in Wilson v. Braden, 48 W. Va. 196, approved and applied, (p. 709).</p>

Action by Albert A. Martin, an infant etc., against Hughes Creek -Coal Company. Verdict for plaintiff was set aside by the •Court, and Martin brings error.

<p>Error to Circuit Court, Wetzel County.</p> <p>Charles Amos Long brought an action against Potts and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Gilmer Couuty.</p> <p>Bill in equity by Mareellus Hardman aud others against Edwin L. Brannon. Suit dismissed and Mareellus Hardman and Mareellus Stump appeal.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Action by McCray and others against Craig & Sons. Judgment for defendant, and plaintiffs bring error.</p>

Action by Arthur B. Farquhar and others, partners, etc., against Charles E. Dehaven and others. Judgment for plaintiffs, and defendants bring error.

<p>Declaration — Contract-—Plea.</p> <p>The propriety of the filing of a plea must be tested by the averments of the declaration. It can not be tested by a construction of a contract referred to in the declaration as annexed thereto. ■</p>

Action by Samuel Rosenthal and another, partners, against Sam Fox and another. Judgment for defendants, and plaintiffs bring enor.

<p>Appeal from Circuit Court, Fayette County.</p> <p>Bill by the Electro Metallurgical Company against J. W. Montgomery. Decree for defendant, and plaintiff appeals.</p>

<p>Error to Circuit Court, Upsliur County.</p> <p>Action by Bowdisli & Deganno Brothers against William Groscup. From a judgment for defendant, plaintiffs bring error.</p>

<p>Original proceeding in mandamus by Charles IT. Kiniba.ll and others against J. T. Loughney, Mayor of the City of Sistersville, and others.</p>

<p>1. Indictment and Infobmation — Motion to Quash — Limitations.</p> <p>On a motion to quash an indictment for a misdemeanor, showing the date of the offense, but not the date of the finding, the order of the court, showing the date of the return of the indictment, may be read in negation of the claim of a defense under the statute of limitation, apparent upon the face of the record, and also as showing indictment within statutory-time. . (p. 773).</p> <p>2. Grand Jtjby — Administration of Oath — Presumption.</p> <p>An order, showing a grand jury by whom an indictment was found were sworn as such is aided by a presumption that the oath administered was such as the law requires, and is sufficient, unless the order shows the contrary, (p. 775).</p> <p>3. CRIMINAL Law — Former Jeopardy — Merger of Offense.</p> <p>The offense of carrying an unlawful weapon is not merged in an indictment for maiming with the weapon alleged to have been so carried, the two offenses being wholly separable and legally independent, (p. 776).</p>

<p>Appeal and Ebkob — Dismissal—Failure to Perfect Proceedings.</p> <p>Failure to perfect an appeal, writ of error or supersedeas by giving the bond required by law and the order of the court or judge, awarding it, within one year and two months from the date of the judgment, decree or order involved, makes it the mandatory duty of the appellate court, under section 17 of chapter 135. of the Code, to dismiss the appeal, writ of error or supersedeas, although the bond has been given after the expiration of such period.</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Bill by John Shrader against William P. Gardner and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Equity — Pleading—Amendment—Effect of Delay.</p> <p>An amended answer offered five years after the filing of the original answer is properly rejected, no excuse or reason being given for delay, (p. 784).</p> <p>2. Same.</p> <p>An amended answer, though containing cross bill matter, must be filed with reasonable promptness, and where long delayed without excuse is properly rejected, (p. 784).</p>

<p>1. Taxation — Redemption from Tax Bale — Proceedings'—Burden of Proof.</p> <p>In a proceeding under Code 1906, sec. 874, by a tax-purchaser to contest the right of a creditor of the delinquent taxpayer to redeem the land sold for taxes, the burden is on the creditor to prove that his debtor has an interest in the property sold for taxes chargeable with his debt, and that the creditor has right to redeem, (p.789).</p> <p>2. Justices cm? tiie Peace — Proceedings — Judgment — Collateral Attaelc.</p> <p>Though the transcript from a justice’s docket does not show that five days elapsed between the daté of service of the summons and a judgment, yet if the justice has jurisdiction, the judgment is not void and open to collateral attack, only for the failure of the docket to show such fact. (p. 790).</p> <p>3. Same — Proceedings—Judgment—VoeJcet Entries.</p> <p>If a justice has jurisdiction of a case, there is a presumption that due steps and proceedings were had in the proceedings of the action, and a failure of the docket to show that proceedings were regular, will not make a judgment void. (p. 790).</p> <p>4. Taxation — Redemption from Tax Sale — Persons Entitled to Redeem.</p> <p>It is not essential that a judgment be docketed in the judgment lien docket to enable the judgment creditor to redeem land sold for taxes, (p. 791).</p> <p>5. Same.</p> <p>To enable a judgment creditor of one of two or more partners to redeem partnership land sold for taxes in the name of the firm, it is not required that such creditor shall show that after payment of partnership liabilities a surplus of assets will remain. (p. 789).</p>