Volume 71 — West Virginia Reports

<p>1. Homicide — Evidence — Admissibility — Circumstances Preceding-Act.</p> <p>When self defense is relied on and there is some evidence that deceased was the aggressor, evidence of his recent act or acts of violence even towards third persons though uncom-municated to defendant, and so connected in time, place and circumstance with the homicide as to likely characterise deceased’s conduct towards defendant, ought to he admitted to show the quo animo, for the question then is what deceased probably did, not what defendant thought he was going to do. (p. 3).</p> <p>2. Same — Instructions—Degree of Offense.</p> <p>Upon principles enunciated in State v. Gravely, 66 W. Ya. 375, State v. Taylor, 57 W. Ya. 228, and State v. Clifford, 59 W. Va. 1, an instruction that homicide proved or admitted is presumed to be murder in the second degree is not wholly inapplicable, though self defense be relied on and the facts and circumstances shown in evidence tend to justify the killing, and to reduce the offense to one of lower degree, (p. 10).</p> <p>3.' Criminal Law — Trial—Instructions—Construction as a Whole.</p> <p>The general proposition contained in an instruction that the law of self defense is the law of necessity, not limiting it to apparent necessity, but followed by the statement that unless the prisoner acted in the honest belief that it was then and there necessary to take the life of deceased in order to save his own life or free himself from some great bodily barm, be was not justified therein, and if the jury believed defendant though previously assaulted, used more force than was reasonably necessary to repel the assault or shot or continued to shoot after necessity for so doing had ceased, they could not acquit him, is not erroneous, for as a whole the instruction does limit the law of necessity stated to apparent necessity, (p. 11).</p> <p>4. Same — Trial—Instructions—Requests.</p> <p>An instruction that where there is more than one assailant, the slayer has the right to act upon the hostile demonstration of one or all of them and to kill one or all if it reasonably appears to him that they are present for the purpose of acting together to take his life or do him some serious bodily injury, is not erroneously rejected where the same proposition is substantially covered in another instruction stated in terms more particularly appropriate to the concrete case. (p. 12).</p> <p>Robinson and Williams, Judges, dissent.</p>

<p>1 Adveese Possession — Operation and Effect — Mistake—Extent of Possession.</p> <p>While the general rule is, that one who hy mistake enters lands of another not covered by his title papers will be limited in his adversary possession to the land actually enclosed or of which he has had the pedis possessio; yet, if his title papers do cover the land entered, and the entry be with the purpose and intent of holding the same to the limits of the boundaries described in his deed or title papers, and as surveyed, and located on the ground by natural and fixed objects called for, he may by such entry and adversary possession and color of title, continued openly, notoriously and exclusively for the requisite period acquire title to all the land comprehended in his title papers, although such land may have been located and entered, by mistake as to the true location of original lines and corners called for in some prior or ancient patent, deed or title paper, by which he traces his title to the commonwealth, (p. 26).</p> <p>2. Same — Operation and Effect — Settlement of Boundaries.</p> <p>One of the objects of the statute of limitations is to settle disputed boundaries, as well as disputed claims of ownership, regardless of what the true boundary or better right may turn out to be. (p. 26).</p> <p>3. Same — Operation and Effect — Extent of Possession — “Color of</p> <p> Title.” </p> <p>Color of title, for the purposes of the statute of limitations as to land, is that which has the semblance or appearance of title, legal or equitable, but which in fact is not title, (p. 26).</p> <p>4. Same.</p> <p>The same kind of adversary possession which by pedis posses-sio will ripen into good title to land actually occupied and enclosed under a claim of title, will if under color of title give good title to the occupant to the limits of the boundary covered by his deed or title papers, the boundaries thus called for being in such cases equivalent to actual enclosure and occupancy under claim of title, (p. 26).</p> <p>5. Same — Nature and Requisites — Continuity of Possession.</p> <p>By section 19, chapter 90, Code 1906, adversary “possession of any part of the land in controversy under such patent, deed or other writing, for which some other person has the better title” is “taken and held to extend to the boundaries embraced or included by such patent, deed or other writing unless the person having the better title shall have actual adverse possession of some part of the land embraced by such patent, deed or other writing”; and the fact that some stranger to the better title, not shown to have entered under or by authority or sufferance of the owner of the better title may have cropped or otherwise used and had enclosed by an indifferent fence or barrier a small portion of the disputed boundary, does not interrupt the operation of the statute of limitations in favor of one in possession of the residue of the disputed boundary, occupying. and claiming tlie whole thereof hy color of title, or render the possession of the latter less exclusive of the owner of such better title, (p. 28).</p> <p>6. Landlord and Tenant — Landlord’s Title — Interruption of Possession.</p> <p>Recognition of title or attornment to another by the tenant of such adversary claimant, will not by section 4, chapter 93, Code 1906, interrupt the continuity of such claimant’s possession, but will be void, “unless it be with the consent of the landlord of such tenant, or pursuant to, or in consequence of, the judgment, order, or decree of a court”; or such claimant otherwise have notice or knowledge of such recognition or attornment by his tenant, (p. 32).</p> <p>7. Same.</p> <p>If such tenant of an adverse claimant take a secret lease from a third person claiming to.be the owner, without the knowledge of his landlord, the character of' his possession, will not be changed thereby, (p. 33).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Mary E. Miehaelson against the City of Charleston. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Taylor County.</p> <p>The Tygarts Valley Brewing Company was convicted of an illegal sale of beer without a license, and brings error.</p>

<p>1. Statutes — Schools and School Districts — Q-eneral or Local and Special Laws — Establishment of County High School.</p> <p>Chapter 26, Acts 1911, creating the Nicholas county high school in or near to the town of Summersville, anil providing for the purchase of the ground, the erection of a building and the maintenance of the school, by a tax to be levied by the board of directors of said school iipon all the taxable property in the county; and constituting the county superintendent of free schools and the members of the county court, ex officio, as four members of the board of directors, and providing for the election of a fifth member at the next succeeding general election; and providing for the submission of the act to a vote of the people of the whole county, and not by districts, for their ratification or rejection, at a special election to be ordered by tire county court; and providing that tbe. act shall not become effective unless ratified by a majority of the^votes taken at said special election, held to be a valid act, and not in contravention of any of the following sections of the Constitution, viz.: Sec. 39, Art. YI; Secs. 1, 5, 6, 10 and 12, Art. XIX; Sec. 24, Art. VIII; and Sec. 8, Art. VII.</p>

<p>1. Schools and School Districts — B.onds—Purpose.</p> <p>Money arising from sale of bonds issued under Acts of 1908, ch. 27, sec. 39, Supplement Code of 1909, serial section 1598, may be used by a board of education to/acquire land for sites for school houses, (p. 52).</p> <p>2. Words and Phrases — “House.”</p> <p>“House.” Legal meaning discussed, (p. 52).</p>

<p>Intoxicating Liquors — License—Mandamus.</p> <p>Section 46, chapter 6, Acts of 1909, gives the council of the city of Martinsburg sole power to grant or refuse license to sell intoxicating liquors, in the city or within two miles of its limits, and when it has granted such license the act is mandatory upon the county court to grant a state license.</p>

<p>1. Bills and Notes — Actions—Pleadings.</p> <p>In an action by the holder of a negotiable note against the in-dorsers only, it is not necessary to aver non-payment by the maker, (p. 57).</p> <p>2. Same — Actions—Evidence.</p> <p>Possession of a negotiable note, indorsed in blank by the payee, is prima facie proof of title, (p. 58).</p> <p>3. Same — Protest—Notice l>y Mail.</p> <p>Proof that notice of protest, properly, addressed and stamped was deposited in the post office at the place of protest, in time to go by mail on the day following the day of dishonor, establishes due notice. (p. 59).</p> <p>4. Same.</p> <p>Addressing the person as “Treasurer” does not affect the validity of the notice to him as an individual, if he is individually bound on the dishonored paper, (p. 59).</p> <p>6. Appeal and Ebkob — Disposition of Causes — Correction of Judgment.</p> <p>When it clearly appears that there is an error in the amount of the judgment appealed from to the prejudice of the defendant in error, and the record contains data by which the same can b'e corrected, this Court will make the correction although no motion to correct it has been made in the court below, and will then affirm the judgment, unless there be other errors. (p. 60).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Jacob Shore against B. PL Powell. Judgment for plaintiff by a justice. Prom a judgment for defendant on appeal, plaintiff brings error.</p>

<p>Appeal from Circuit Court, Upshur County.</p> <p>Suit in equity by George Woofter and others against L. E. Matz ond others. Erom a decree for plaintiffs, defendants appeal.</p>

Suit in equity by George W. Hoffman against George M. Beltzhoover, trustee, etc., and others. Prom the judgment, defendant Beltzhoover and another appeal.

<p>1. GaS' — Charges—Injunctions—Parties.</p> <p>A municipal corporation may in its name, suing for itself as a corporation and in behalf of its residents, maintain an injunction suit to restrain an incorporated company furnishing, under a franchise granted by the municipality, natural gas for public consumption in the town or city, from excessive unlawful rates for gas. (p. 78).</p> <p>2. Same — Gas Companies- — -Franchises—Limitations of Rates— Validity.</p> <p>A provision in a municipal ordinance granting a franchise to erect and operate works to furnish natural gas for consumption in the town or city may contain fixed rates or charges for gas, and such limitation is valid, and when accepted by the grantee Is a contract binding the grantee of such franchise, (p. 78).</p> <p>3. Same — Gas Companies — Regulation—-Power of Municipality.</p> <p>In the absence of a delegation thereof by the Legislature, express or necessarily implied, a city or town has no power to regulate rates for natural gas furnished by a person or corporation for public consumption in such city or town, otherwise than by contract with such person or corporation, by the terms of the grant of franchise, (p. 79).</p> <p>4. Same — Gas Companies — Charges.</p> <p>A franchise is granted by a town to a corporation to occupy streets with pipes to convey gas for public consumption, author-' izing specific rates of charges per fire. Later the gas company changes its charge from specific rates to a charge by meter of twenty cents per 1,000 cubic feet of gas. Tbe town by injunction suit contested tbis change and charge; but it was denied relief and its bill dismissed. For thirteen years the company furnished the public with gas by meter at the twenty cent rate, the town silently acquiescing. Then the gas company increased its rate to twenty-two cents per 1,000 feet by meter. Later on the town passed a general ordinance allowing those furnishing gas to charge a rate by meter of twenty cents per 1,000 feet of gas, and prohibiting higher charges. Under these facts the gas company is limited to such twenty cent charge, and cannot increase it without consent of the town. (p. 80).</p>

<p>Appeal from Circuit Court, Lewis County.</p> <p>Bill by William IT. Hall and others against the South Penn Oil Company and another. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Homer Highland was convicted of voluntary manslaughter, and brings error.</p>

<p>Indictment and Information — Sales of Poisons — Prosecutions.</p> <p>A count of an indictment for selling cocaine under chapter 16, Acts of 1911, is defective if it does not aver that the sale was without the prescription of a physician. It must negative that exception in the statute.</p>

<p>Appeal from1 Circuit Court, Mercer County.</p> <p>Bill by D. W. McClaugherty against W. Ií. Rumibprg and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court Cabell County.</p> <p>Martin Fraley was convicted of embezzlement, and brings error.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by Stephen C. Johnston against the City of Huntington and others. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal and Ekror — Instructions—Prejudicial Error.</p> <p>The refusal of a proper instruction or the giving of an improper one raises a presumption of injury and prejudice, warranting a new trial, unless the court can see from the record the complaining party was not injured.</p>

<p>1. Descent and Distbibution — Estop-pel—Persons Entitled to Shares — Estoppel Vy Record.</p> <p>The husband joins his wife in a deed conveying, in fee, her undivided interest in a tract of land, and joins in a covenant warranting'generally the title thereto; the deed is void as to the wife because of her defective acknowledgment, and she dies, in 1871, intestate and without issue, leaving her husband.</p> <p>Held:</p> <p>I. That, under the statute then in force, the husband was her sole heir.</p> <p>II. The husband is estopped by his covenant, to claim title to such interest, and the effect of the estoppel is to invest the grantee with his title. (p,. 121).</p> <p>2. Judgment — Conclusiveness—Matters Concluded — ■Title to Land.</p> <p>An adjudication of the title to a particular tract of land, or an undivided interest therein, is res judicata, between the same parties and their privies, upon the title to another tract of land, claimed adversely by them, in the same manner and under the same chain of conveyances, (p. 122).</p> <p>3. Same — Persons Concluded — Joint Tenants.</p> <p>A decree denying relief and dismissing plaintiff’s bill, in a partition suit wherein adverse title -is involved, is an adjudication, not only against plaintiffs title, but also against those whom he alleges to be his joint tenants under the same title with himself, and who are served with process and fail to appear. (p. 123).</p> <p>4. Hiee Estates — Adverse Possession by Life Tenant.</p> <p>Possession by the life tenant is not adverse to the remain-dermen. (p. 126).</p> <p>5. Adverse Possession — Elements—Color of Title.</p> <p>Mere naked possession, without color or claim, will not ripen into good title, (p. 126).</p> <p>6. Tenancy in Common — Mutual Bights of Tenants — Adeverse Possession.</p> <p>Possession by one joint tenant, who asserts entire ownership, will not become adverse to his co-tenant until he has knowledge, actual or constructive, of such claim, (p. 126).</p> <p>7. Adverse Possession — Possession by Tenant — Attornment to Third Person.</p> <p>Attornment by a tenant in possession, with knowledge of his lessor who takes no steps to regain possession, is sufficient to break the continuity of possession and stop the running of the statute, (p. 127).</p> <p>8. Quieting Title — Right of Actiovr — ,Undivided Interest.</p> <p>A party out of possession, having complete equitable title to certain undivided interests in land and a right to the legal title thereto, may maintain a bill in equity, against the party in possession claiming adversely to him, to obtain the legal title and to remove such adverse claim as a cloud upon it. (p. 128).</p> <p>9. Equity — Pleading—Prayer for Belief.</p> <p>Under the prayer for general relief, the court should grant such relief as the plaintiff’s cause entitles him to, not inconsistent with the prayer for specific relief, (p. 129).</p> <p>10. Same — Jurisdiction—Retention to Give Complete Relief.</p> <p>Equity, having jurisdiction of a cause for one purpose, will generally give complete relief by determining all the issues involved, thus avoiding a multiplicity of suits, (p. 129).</p> <p>11. Taxation — Forfeitures—Sufficiency of Payment of Taxes.</p> <p>Payment of taxes by one of two adverse claimants of land, both claiming title mediately from the same original owner, will prevent a forfeiture of the title to the state, (p. 130).</p>

Suit in equity by Virginia W. Henrie against Morgan Henrie. From a decree increasing the alimony allowed by the original decree of divorce, defendant appeals.

<p>1. MARSHALING Assets and Securities — Scope of Remedy.</p> <p>To invoke the doctrine of marshaling securities both sources, of payment must belong to a common debtor, (n. 141).</p> <p>2. Same.</p> <p>Securities will not be marshaled to the injury of one over1 whom the party asking the marshaling has no superior equity, (p. 142).</p> <p>3. Appeal and Error — Appeal from Interlocutory Decree — Review.</p> <p>An appeal from an interlocutory decree does not bring up. for review a subsequent final decree though the latter was entered prior to the appeal, (p. 142).</p> <p>4. Same — IDismissal—Dissolving Injunction.</p> <p>When the error, if any, in an interlocutory decree dissolving ' an injunction has been merged in a final decree denying relief and dismissing the bill, an appeal from the former alone will be dismissed if it appears that the latter is unappealable by lapse of time. (p. 142).</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Action by tí. B. N'eelejr against the Town of Cameron. Judgment for plaintiff, and defendant brings error.</p>

<p>■The decree below is reversed and plaintiff’s bill for specific performance dismissed by the application of the following familiar equity principles:</p> <p>1. Specific Performance — Good Faith and Diligence.</p> <p>Equity will not decree specific performance to him who has not shown himself to have been ready, desirous, prompt and eager to perform the contract on his part, or if his conduct has indicated bad faith or virtual abandonment of the contract. (p. 152).</p> <p>2. Vendor and Purchaser — Mutual Rights and Liabilities — - Estoppel of Purchaser.</p> <p>The rule that a vendee, who has obtained possession of land under an executory contract, will not be heard to deny his vendor’s title, and that his purchase of an outstanding title will inure to the benefit of his vendor, does not apply, where the vendee was already in possession, claiming the land by title under a prior deed or contract, and his subsequent contract was made to perfect the title he already had, with one who had in fact no title; (p. 153).</p> <p>3. Specific Performance — Vendor and Purchaser — Nature of Remedy — Discretion of Court.</p> <p>Specific performance is not a matter of right, but lies in the sound discretion of the court, and will not be exercised in favor of one who has slept on his rights, or the circumstances and conditions have so changed that specific performance would result in hardship, (p. 154).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action, by William M. Burkheimer, Jr., against A. G. Blake and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Pendleton County.</p> <p>Action by John E. Roller against Mary II. Murray and others. Judgment for defendants, and plaintiff appeals.</p>

Consolidated actions by the William James Sons Company, by the Lilly Lumber Company, and by the Hinton Foundry, Machine & Plumbing Company against Charles Farley and others to enforce a mechanic’s lien. Judgment for plaintiffs, and defendant Farley appeals.

<p>Error to Circuit Court, Grant County.</p> <p>Action by J. W. Maliaffey against the J. L. Kumbarger Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Master and' Servant — Injuries to Servant — Infants—Oontributory Negligence.</p> <p>Employment of a boy under fourteen years of age to worJc in a coal mine is prima facie actionable negligence in tlie master, and will call for damages in case of injury to tbe boy while in service, and exempt him from the defense of contributory negligence, unless it be shown he had experience, intelligence, care and capacity, notwithstanding his age, to enable him to appreciate and avoid the dangers of service.</p>

<p>Application by P. D. Morris and others for a writ of mandamus to AAr. J. Postlethwait, clerk, and others.</p>

<p>1. Husband and Wife — Action—Parties.</p> <p>A married woman may sue alone, or make her husband co-plaintiff, in an action for damages for a personal injury, (p. 185).</p> <p>2. Same — Action-—Damages.</p> <p>In such action, the wife can not recover for loss of time and money expended in effecting her cure, unless she avers and proves that she employed her time, or some material part of it, in her own separate earnings or business, and that she has paid the expenses of her cure out of her separate estate, or that she is personally liable therefor, (p. 189).</p> <p>3. Same.</p> <p>A married woman, having no separate business or estate, employing her time wholly about her husband’s household affairs, who sues for a personal injury, can recover damages only for physical pain, mental anguish and impairment of her capacity to enjoy life. (p. 189).</p> <p>4. Highways — Use for Travel — Liabilities for Injuries — Contribuí tory negligence.</p> <p>In view of the statute, (sec. 53, ch. 43, Code 1906), proof of knowledge hy the road overseer of a defect in the public highway for a sufficient time to enable him to make repairs, is not essential to establish negligence for failure to keep the highway in repair, (p. 186).</p> <p>5. Same.</p> <p>Unless a defect in a public highway, known to the traveler, is so obviously dangerous that no person of ordinary prudence would assume the risk of attempting to drive over or by it, it is for the jury to determine whether or not he has been guilty of negligence in doing so. (p. 188).</p> <p>6. Negligence — Contributory negligence — Acts in Emergencies.</p> <p>One whose negligence has placed another in a perilous situation can not escape liability for an injury resulting from his effort to escape from the danger, provided he used such prudence and judgment as an ordinarily prudent person would have used, in view of all the circumstances, (p. 188).</p> <p>7. Same — Driver’s negligence Contribu,table to Traveler.</p> <p>A traveler on the highway in a vehicle driven by another is not generally required to exercise the same degree of care as the driver to avoid accident; still, if he has equal knowledge of a defect in the highway and knows that the driver is about to drive by, or over it, and neither protests nor offers to get out of the vehicle, and is injured, the negligence of the driver, if any, is attributed to the traveler, (p. 187).</p>

Suit in equity by C. L. Moore and others against Edwin Patchin and others. From a decree for the complainants, defendant Horroeks Desk Company appeals.

<p>1. Explosives — Liability of Contractor — Blasting.</p> <p>A railroad contractor who negligently blasts rock on the land through which the right of way on which he is working has been condemned is not absolved from damages by a removal of the rock therefrom, (p. 197). ></p> <p>2. Same.</p> <p>Where a contractor in constructing a railroad through land from which the right of way has been taken by condemnation 'does the work prudently and carefully in relation to the land owner, removal, in a reasonable time, of the rock necessarily falling on the land will absolve him from damages; but if he negligently leaves such rock on the land an' unreasonable time, he is liable for injury caused by his negligence in the premises, (p. 197).</p> <p>3. New Tbial — Erroneous Instructions.</p> <p>The giving of an instruction which binds the jury to eliminate from consideration a ground of recovery on which plaintiff, from one phase of the evidence, might recover, is plainly error warranting a new trial, (p. 198).</p> <p>(Williams, Judge, dissenting).</p>

<p>1. Municipal Cobpobatiosts — Powers—Employment of Attorney.</p> <p>A municipal corporation whose charter is silent in the premises has implied authority to employ an attorney to attend to its corporate interests, and to prosecute and defend actions in its behalf, (p. 201).</p> <p>2. Same.</p> <p>A municipal corporation may usually employ as many attorneys in a particular suit or matter as it may deem necessary to protect its interests, unless its charter forbids or the general scheme of its government so provides for a city attorney or other legal officer as to negative authority to employ others, (p. 201).</p> <p>3. Same.</p> <p>Where a town charter recognizes the right of the municipal authorities solely to license the sale of liquors, it is within the ■discretion of the authorities to inaugurate a policy of revenue and control thereunder and to deem the same of such importance to the town as to justify the expenditure of the public money in a legal defense of the right! (p. 202).</p> <p>4. Same.</p> <p>Municipal authorities may lawfully engage attorneys for the purpose of obtaining, in the court of last resort, a rehearing of a criminal case to which the town is not directly a party and a reversal of a decision therein which denies the existence of a material, corporate right of the town, when the decision if left unreversed will so operate as to prejudice materially the interests of the town. (p. 202).</p> <p>(Williams, Judge, dissenting).</p>

<p>1. Injunction — Trespass to Real Estate..</p> <p>Equity will not take jurisdiction for the sole purpose of enjoining trespass to real estate, (p. 209).</p> <p>2. Same — Trespass—Gutting Timber.</p> <p>But if the title he undisputed or it is made clearly to appear that defendant has in fact no title, legal or equitable, equity will, at the suit of á party in possession or out of possession, but with right of possession, enjoin the cutting of timber, (p. 209).</p> <p>.3, Same — Trespass—Disputed Title.</p> <p>Where the title to land is in dispute, the cutting of timber by one claiming title will not he enjoined unless it be alleged and proven that a suit has been or is about to be brought to try the title, (p. 209).</p> <p>(Williams, Judge, absent.)</p>

<p>1. Ejectment — Suit by Equitable Owner — Bill.</p> <p>A bill by the equitable owner to get in the legal title to land, which describes the land generally, and particularly by reference to some of the title deeds exhibited and filed therewith, is not bad on general demurrer because the immediate deed described and referred to in the bill by reference to the date, deed book and page where recorded, and offered to be filed if required, is not in fact filed, (p. 212).</p> <p>2. Same — Legal Title — Bill to Recover — Possession.</p> <p>Nor- is such a bill, as would be a bill to quiet title, bad on demurrer for failing to allege that the plaintiff is in possession (p. 212).</p> <p>3. Witnesses — Transaction or Communication with Person Since Deceased.</p> <p>Section 23, chapter 130, Code 1906, does not render incompetent the evidence of a party or other witness as to a personal transaction or communication had with a deceased person, where that evidence is in favor of and not against the persons protected by the statute, (p. 214).</p> <p>4. Quieting Title — Bill—Possession.</p> <p>A bill to quiet title to or remove cloud from real estate, which fails to allege possession by plaintiff, is bad on demurrer. (p. 214).</p> <p>5. Witnesses — Competency—Transaction or Communication with Person Since Deceased. 1</p> <p>The testimony of defendant and of her other witnesses relating to personal transactions and communications had with her deceased husband, and given against his heirs, and in support of the allegation of her cross-answer, as constituting a claim for affirmative relief, being incompetent by section 23, chapter 130, Code 1906, and without which the evidence is insufficient, the cross-relief prayed for should be denied for want of competent evidence to support the' facts alleged as grounds for relief, (p. 215).</p>

<p>1. Logs and Logging — Reservation of Title — Unassignable License.</p> <p>A clause in a dead which conveys land from parents to a child as an advancement, reserving to the father and mother “the privileges of selling and removing any timber from said land that they may desire to sell or to use and also the right of way through said lands to remove the same,” does not reserve title to the timber. It creates only an unassignable license, (p. 218).</p> <p>2. Same — Reservation of Unassignable License — Revocation.</p> <p>An attempt to assign such license revokes it, and the passage of the title to the land into the hands of a third party, by a sale, also terminates it. (p. 219).</p>

<p>Master and Servant — Injury to Miner.</p> <p>The duty to see that refuge holes along motor roads in coal mines are kept, as required by section 10 of chapter 78, Acts of 1907 (Code Supp. 1909, c. 15h), rests on the mine foreman, not on the mine owner, and for injury to a miner resulting from their absence the mine owner is not liable.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by George Ritter and others against George S. Couch and others. Decree for plaintiffs, and defendant Couch appeals.</p>

<p>Petition by E. D1. Stewart lor a writ of mandamus to John L. Kinghorn and others.</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by W. P. Shock against D. H. Gowihg. Decree for defendant, and plaintiff appeals.</p>

<p>E'rror to Circuit Court, Braxton County.</p> <p>Action by E. E. Runnion against W. E. Morrison. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Action by Mattie B. Kendall against L. B. Dunn. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Habeas Corpus — Pleading—Replication to Return.</p> <p>In habeas corpus, the want of a replication to the return is not ground for reversal when the court or judge has heard the matter on evidence as though the return was denied, (p. 270).</p> <p>2. Same — Custody of Minor.</p> <p>The father is legally entitled to the custody of his infant child, if fit for the trust, and the same should not he denied him unless the child’s welfare or other considerations clearly outweigh his legal right, (p. 271).</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by C. B. Frum against Marshall J. Prickett. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Bill by Pat Gay against W. C. Householder. Decree for defendant, and plaintiff appeals.</p>

<p>1. Public Lands — Application to Sell State Lands — Reference.</p> <p>In a suit by the State, pursuant to chapter 105, Code 1906, to sell its waste and unappropriated lands, it is not error to refer the cause to a commissioner, before proof of the allegation of the bill, although defendants and claimants have filed answers alleging title in themselves and denying that the land proceeded against is waste and unappropriated, particularly where the answers are not specific, or are equivocal, and the boundary lines are doubtful, or in dispute, and a survey and report is necessary to locate the land. (p. 286).</p> <p>2. Adverse Possession — Title to State Lands.</p> <p>The actual continuous possession under color or claim of title, and payment of taxes, required by section 3, Article XIII, of the Constitution, and section 6, of chapter 105, Code* to transfer the State’s title to lands must be actual, visible, notorious and continuous, not uncertain and desultory, as by occasional trespasses, prevention of trespassing by others, cutting cf timber, payment of taxes, &c. (p. 291).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Tudor Galizian against William Henry. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Vendor and Purchaser — Liens—Staisfaction—Set-Off.</p> <p>One who pays off a prior lien on land purchased by him to protect his title may set-off the amount so paid against his purchase money notes in the following order: (1) those unassigned in the hands of the vendor, and Í2'» those assigned in the inverse order of the assignments, (p. 298).</p> <p>2. Same — Prior Liens — Payment by Purchaser — Set-off—Waiver.</p> <p>Neither failure to claim such right of set-off in response to a notice of an assignment nor payment of the prior lien after such notice, nor insolvency of the assignor after the notice, nor all of them combined, bars such right of set-off. (p. 298).</p> <p>3. Costs — Apportionment.</p> <p>In a suit by assignees against a debtor having a right of set-off, denied by all the assignees, the court may, in its discretion, refuse costs to any of the parties, the assignor, ultimately liable for the set-off, being insolvent, (p. 299).</p> <p>4. Vendor and Purchaser — Purchase Money — Prior Liens — Payment by Purchaser — Set-Off■—Costs.</p> <p>A purchaser, paying off a prior lien with costs of a suit to enforce it, is not entitled to set-off such costs against his purchase money notes, in the absence of evidence showing inability safely to pay off the lien without an' adjudication ■thereof, (p. 299).</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Action by the Virginia Supply Company against A. E. Calfee and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>'Action by Lizzie Freeman against Ernest W. Freeman and others. Judgment for plaintiff, and defendants brings error.</p>

<p>1. Subkogation — Rights of Surety — Payment of Judgment.</p> <p>As to a surety who is compelled to pay a judgment against the principal, equity will consider the debt as still existing for his benefit and will subrogate him to all the rights and remedies cf the original creditor under the judgment, (p. 317).</p> <p>2. Same — Rights of Surety — Enforcement of Judgment.</p> <p>A surety, who by payment of the debt is subrogated to the rights and remedies of the original creditor under a judgment, may enforce the same' against real estate owned by the judgment debtor at the time of subrogation or thereafter acquired by him. (p. 317).</p> <p>3. Same.</p> <p>Where one is subrogated to the rights and remedies of another under a judgment he may enforce the judgment to the same extent and within the same time that the original creditor could have enforced it. (p. 319).</p> <p>4. Limitation oe Actions — Limitation Applicable- — Action by One Subrogated, to Another’s Rights.</p> <p>The period of limitation as to the rights of a subrogee of a judgment is that which was applicable to the judgment in the hands of the orginal creditor, (p. 320).</p>

<p>Street Railroads — Injury to Traveler — Contributory Negligence.</p> <p>It is negligence to drive in tile darkness of the night closely along or on the track of an interurban railway that occupies part of the highway 'and on which the running of cars at any moment must reasonably be anticipated, when there is ample width of road to drive clear of it; and where one guilty of such negligence is overtaken by a. car, handled with reasonable care in the emergency, and is injured thereby, he can not recover.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by R. FI. Dickinson against the Stuart Colliery Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Mortgages — Compulsory Release — Suit to Compel.</p> <p>The promissor in non-negotiable notes, secured by a deed of trust on land, and owner of the land, claiming full or partial satisfaction of the notes by payment or application of sets-off by agreement, which the creditor denies, will be entertained in a court of equity for a compulsory release of the deed of trust on proof of full satisfaction of the debt, or for judicial ascertainment of the amount due and redemption thereof on proof of partial satisfaction, (p. 331).</p> <p>2. Bums and Notes- — Nonl-negotiable Notes — Equities in Hands of Maher.</p> <p>Equities against non-negotiable promissory notes in the hands of an assignee, acquired, by the promissor, against him, while he held them, are available as discounts or credits against a subsequent assignee, (p. 333).</p>

<p>1. Master and Servant — Injuries to Servant— Mining Regulations —Failure to Perform.</p> <p>If a coal mining company, having employed a mine boss in compliance with, the statutory requirement, oust him from the discharge of his duties, respecting the care of the roof of the mine and maintenance of its safety, or relieve him therefrom and undertake the performance of such duties itself, and then permit such roof to remain or become unsafe and dangerous, , and an employee is injured by a fall of slate or stone therefrom, the negligence, if any, causing the injury, is that of the company, not the mine boss, and the former is liable. <p. 338).</p> <p>2. Same — Injuries to Servant- — Goal Mining — Fall of Roof.</p> <p>A coal mining company is liable for injury to an employee by a fall of slate or stone, caused by its failure to furnish the mine boss machinery and materials, necessary to remove such dangerous slate or stone or make it secure, upon notice of his inability to do so for lack of such facilities and his demand therefor, (p. 338).</p> <p>3. Same — Injuries to Servant — Mining—Defective Roof — Notice.</p> <p>Mere notice from the mine boss to the operator of a defect in the roof of the mine and ignorance thereof on the part of an employee, injured by such defect, are not sufficient to impose liability upon the operator for the injury, (p. 339).</p> <p>4. Same — Injuries to Servant — Defective Goal Mine — Notice— Failure to Provide Facilities to Remedy Defect- — Pleading.</p> <p>In a count to charge a coal mine operator for failure to comply with requisitions of the mine boss for machinery and materials to remedy a defect, it is not sufficient merely to allege notice by the mine boss of his inability to remedy it, since both operator and mine boss continue under legal duties after such notice, (p. 339).</p> <p>6. Same — Injuries to Servant — Goal Mining — Notice to Operator.</p> <p>In an .action against a mining company for an injury, occurring while a certain mine boss was in charge of the mine, proof of ouster of a former mine boss by the operator, or usurpation of his powers, or of non-compliance with his requisitions for machinery and materials, will not alone sustain a verdict for the plaintiff, nor justify the giving of instructions, authorizing in any sense a finding of liability on the part of the company, (p. 844).</p> <p>6. Evidence — Witnesses—Admissions of Servants — Res gestae — ■ Cross Examination.</p> <p>Extra-judicial subsequent admissions of a mine boss, as to requisition upon his employer for machinery or materials for remedy of defects, or an undertaking on the part of the employer to remedy the same, not constituting a part of the res gestae, are inadmissable in an action against the employer for an injury to an employee, and his denial of such admissions, on cross-examination, cannot be contradicted by way of impeachment, unless such admission or denial thereof was a subject of his testimony in chief, (p. 344).</p>

<p>1. Mines and Minerals — Lease—Grant of Interest — Construction. A deed granting “all of the one half of the royalty, being the one sixteenth, of all the oil and one half of all the gas within” a tract of land, there existing at its date a lease by the grantors in such deed to another party providing for delivery to the lessors in a pipe line by the lessee of one eighth of the oil to be produced and for payment to lessors of $300.Ofl per year for each gas well used, does not grant one half of one eighth of the oil and one half the gas in place in the ground, but passes right to have delivered in the pipe line by the lessee one half of one eighth of oil produced, and one half the $300.00 rental for a gas well. (p. 347).</p> <p>2. Judgment — iRes Judicata.</p> <p>A decree'dismissing a bill is not a bar as res judicata as to a matter not in controversy and on which there was no issue, (p. 850).</p>

<p>1. Statutes — Appropriation Bills — Veto—Power of Governor.</p> <p>Syllabus in May v. Topping, 65 W. Va. 656, re-affirmed, (p. 352).</p> <p>2. Mandamus — Issuance of Warrant — State Auditor — Defenses— Constitutionality of Appropriation — Objection.</p> <p>In a mandamus proceeding to compel the State Auditor to draw his warrant upon the Treasurer in favor of a person to whom the Legislature has appropriated money, the Auditor has the right to raise the constitutionality of the appropriation either by 'demurrer and motion to quash the alternative writ, or by answer, (p. 357).</p> <p>3. States — State Funds — Appropriation—Private Purposes — Moral Obligations.</p> <p>The Legislature is without power to levy taxes or appropriate public revenues for purely private purposes; but it has power to make any appropriation to a private person in discharge of a moral obligation of the^state, and an appropriation for such purposeTsTfor a public, and not a private purpose, (p. 353).</p> <p>4. Same — Fiscal Management — Appropriation—Injury to Militiamen.</p> <p>The Legislature has power to provide for compensation to members of the national guard, who may be injured while performing any duty, lawfully ordered by their superior officers; and such a provision by general statute creates a moral obligation on the state to a soldier who ^enlists, and is after-wards injured while performing a lawfully ordered duty, and who is not at fault, (p. 354).</p> <p>5. Militia — Militiamen—Injuries—Statutes.</p> <p>Sec. 47, ch. 18, Code 1906, embraces the case of a member of the national guard who is injured while going to the place of annual encampment, and who is not at fa.ult when injured, (p. 353).</p> <p>6. Constitutional Law — Appropriations—Public or Private Purposes — Power of Courts.</p> <p>Whether an appropriation is for a public, or a private, purpose is a judicial question; but if it does not clearly appear from the act of appropriation that it is for a purely private purpose, the court can not so decide. If any doubt exists as to whether it is for a public or a private purpose, the court must uphold the legislative act. (p. 359).</p> <p>7. Same — -Special or General Law — Legislative Determination.</p> <p>A fact once determined by the Legislature, and made the basis of an act, is not thereafter open to judicial investigation, (p. 35.9).</p> <p>8. Statutes — Special or General Act — Legislative Determination.</p> <p>Whether a special act or a general law is proper, is generally a question for legislative determination; and the court will not hold a special act void, as contravening sec. 39, Art. VI. of the State Constitution, unless it clearly appears that a general law would have accomplished the legislative purpose as well, (p. 360).</p>

<p>Practice and Pleading.</p> <p>The decree below on the merits is affirmed, upon the principles of Tahariey v. Building Association, 59 W. Ya. 296, differentiated in Irving v. B. & L. Association, 63 W. Va. 357; and on the questions of pleading and practice presented, upon the rules of Martin v. Smith, 25 W. Va. 579, Darby v. Gilligan, 43 W. Va, 755, Dorr v. Dewing, 36 W. Va. 466, and Toledo Tie and Lumber Oo. v. Thomas, 33 W. Va. 566.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill in equity by H. L. Smith and others against B. Walker Peterson and others. Pfom a decree for defendants, plaintiffs appeal.</p>

<p>1. Criminal Law — Evidence—Competency—Evidence Illegally Obtained.</p> <p>It is not ground for excluding as evidence a bottle of cocaine or other articles of incriminating evidence, even though forcibly taken from the accused or by putting him in fear, or that, it was obtained by illegal search of the person and seizure', (p. 372).</p> <p>2. Arrest — ■Authority to Arrest — Necessity for Warrant.</p> <p>Either an officer of the peace or a private individual seeing a felony committed may lawfully arrest the felon without waiting for a warrant of arrest, (p. 373).</p> <p>3. Criminal Law— Trial— Conduct in General — Presence of Accused.</p> <p>Upon a trial for felony, after close of the evidence, the judge- and the attorneys for both sides go into another room, leaving the accused and jury in the court room, and in that other room a motion to strike out the evidence of a state witness is1 made by the accused, and argued, and decided against the accused. On discovery of the absence of the accused, he is sent for, and the judge offers to allow him to again make such motion, and argue it, but the accused declines to do so. Such absence of the prisoner-demands a new trial, (p. 373).</p>

<p>Appeal from Circuit Court, Ritchie County.</p> <p>Bill in equity by Benjamin McGinnis against John Caldwell and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Principal and Agent — Agent Acting for Two Principals.</p> <p>A person can not act as the agent of two principals in a matter wherein their interests conflict, without their acquiescence after full knowledge of all the facts, (p. 385).</p> <p>2. Corporations — Authority of Officers.</p> <p>The same man acting as secretary and treasurer of two corporations, one debtor to the other, has no authority, by virtue of his office, to assign the note of the debtor company to secure a 'debt owed to a third person by the creditor company, so as to deprive it of equitable defenses or of the right to file sets-off to such note existing at the date of the assignment, (p. 385).</p> <p>3. Principal and Agent — Dual Agency — Validity of Contract.</p> <p>Either principal, without showing injury to himself, may avoid a contract made by a dual agent, without his knowledge of such dual agency, (p. 387).</p>

<p>1. Acknowledgment — Certificate—Sufficiency.</p> <p>A deed Las two certificates of acknowledgment, immediately-following one another, both dated the- same day, one as to the husband the other as to the wife, the one as to the wife in full compliance with the statute and showing the official character of the officers making it, the one as to the husband though purporting to be made by persons of the exact names of those making the other certificate yet deficient in not describing them as officers authorised in the premises; Held: The two certificates may be read together as one, or the certificate of the wife’s acknowledgment may be resorted to for aid in supplying the omission of official character in the other, (p. 388).</p> <p>2. Limitation of Action — Disability—Infancy—Coverture.</p> <p>When the disabilities of infancy and coverture both exist at the time of the execution of a deed, the right to disaffirm continues until both, 'disabilities are removed, and through the ordinary statute of limitations thereafter, without regard to the length of time which may elapse between the date of the deed and the time of disaffirmance, (p.. 391).</p> <p>3. Infants — Effect of Invalidity — Right of Heirs to Disaffirm,.</p> <p>The privilege of disaffirming a deed for land, voidable because made in'infancy, descends to heirs at the death of the person having the privilege, (p. 391).</p> <p>4. Same.</p> <p>Ordinarily a conveyance of land by an infant may be dis-affirmed at any time that action for the land is not barred by the statute of limitations, (p. 392).</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill in equity by Moore, Keppel & Co. against Wirt C. Ward and others. From a decree for defendants, plaintiffs appeal.</p>

<p>1. Judgment — Merger and Bar — Causes Merged.</p> <p>When the cause of action in a second suit is the same as that in a former one and the parties are identical, both are concluded by the judgment or decree in the former suit, not only as to what was actually decided therein, hut likewise as to everything the plaintiff could have adduced in support of his claim and as to everything the defendant could have relied upon in defense. The cause of action is merged in the judgment or decree, (p. 407).</p> <p>2. Same — Conclusiveness—Matters Concluded.</p> <p>When the causes of action are different, the former decision is conclusive only as to questions, rights and facts actually decided therein, and nothing more. (p. 408).</p> <p>3. Same — Merger and Bar — -Dismissal—Title to Beal Property.</p> <p>Dismissal of a bill to remove cloud from title to real estate, for failure of the plaintiff to prove good title, does not preclude his defense of an action of trespass or bill for an accounting for timber and coal taken from the land, subsequently brought by the defendant in such former suit. (p. 409).</p> <p>4. Same.</p> <p>In such case, the causes of action are different, and, as the former decision does not adjudicate title or possession in the defendant, but only lack of title in the plaintiff, it is not res judicata as to the matters involved in the subsequent suit, (p. 409).</p> <p>5. Injunction — Subjects of Belief — Trespass.</p> <p>In the absence of disclosure of good title in the plaintiff, or an action at law to settle the title, brought or about to be brought, equity has no jurisdiction to enjoin a trespass to real estate, (p. 414).</p> <p>6. Equity — Jurisdiction—Bemedy at Lato.</p> <p>Except in cases of an equity of some sort, conferring jurisdiction, courts of equity will not determine questions of fact peculiar to the jurisdiction of the courts of law. (p. 414).</p> <p>7. Amount — Jurisdiction—Accounting.</p> <p>Necessity of computation of the guantity and value of coal mined and timber cut from land by a trespasser confers no right to an accounting in equity, (p. 414).</p>

<p>Error to Circuit Court, Marshall Comity.</p> <p>Action by Wiley Dowler against the Citizens’ Gas & Oil Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by J. J. Robinson against the City & Elm Grove Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill in equity by F. B. Bartholow against Patrick M. Hoge and others. From a decree for plaintiff, defendants appeal.</p>

<p>Bills and Notes — Construction of Contracts — Interest.</p> <p>A note made payable “one day after date * * * * without interest,” properly construed, and to effectuate the evident intent of the parties, will begin to bear interest only from the time payment is demanded, or suit is brought thereon.</p>

<p>Pabtkebship — Accounting—Partial Settlement.</p> <p>It is error for the court on a partial settlement of a partnership to give a personal decree in favor of one partner against another for a balance found due him on such partial settlement.</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by the South Penn Oil Company against C. A. Snodgrass and others. Decree for complainant, and defendant White Rock Oil Company appeals.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by Margaret Plains against the Parkersburg, Marietta & Interurban Railway Company and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by A. D. McNeill and others against C. L. McClung and others. Decree of dismissal and complainants appeal.</p>

<p>Error to Circuit Court, ©arbour County.</p> <p>©he Southern Coal & Transportation Company was convicted of running sulphurous water into a stream, and it brings error.</p>

Suit by Charles E. Wenner against the Kanawha Oil & Gas Company and others. From a decree correcting a final decree in a suit for the enforcement of certain mechanics liens, the Kanawha Oil & Gas Company appeals.

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by John M. Batten against the Hope Natural Gas Company and others. Decree for defendants, and complainant appeals.</p>

Action by E. Flynn Hull against W. B. Geary. Verdict for plaintiff. From an order setting aside the verdict and granting a new trial, plaintiff brings error.

Petition by the Bank of Union, a subsequent attaching creditor, against the Loeb Shoe Company, a prior attaching creditor ■of the same debtor, to defeat such prior attachment. Prom a judgment dismissing the petition, petitioner brings error.

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by the Birch River Boom & Lumber Company against the Glendon Boom & Lumber Company and others. Prom a decree in favor of plaintiff, E. H. Pierson and others appeal.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>. Action by J. Walker Burns against John W. Waldron. Judgment for defendant, and plaintiff brings error.</p>

<p>Contracts — Written Contracts — Modification Toy Parol.</p> <p>Though a written unsealed building contract provides that no alterations or additions shall be allowed or paid fo'r unless the same and the cost thereof be agreed to in writing in advance, and no change or modification of the contract shall be recognized unless evidenced by agreement in writing, yet a modification may be made by oral contract between its parties.</p>

<p>Petitions by S. P. Nance el al. for writ of hateas corpus, against M. L. Brown, warden of the West Virginia Penitentiary.</p>

Applications by Mary Jones, by Chas. H. Boswell, by Charles Batley, and by Paul J. Paulsen for writs of habeas corpus.

<p>Error to Circuit Court, Randolph County.</p> <p>Action by George H. Daniels against L. B. McLaughlin and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by C. E. Lohr and others against S. L. Wolfe. ' Judgment for defendant, and plaintiffs bring error.</p>

<p>Easements — Express Grant — Construction.</p> <p>B., the owner of a large lot, conveyed a portion of it, 40x70 feet, to certain named trustees of the Methodist Episcopal Church, in trust for a place of worship for the use of the members of said church, and covenanted “that no building shall be erected on any part of the land surrounding the above described granted church lot within ten feet of said church lot.” Held-.</p> <p>I. That said covenant created a perpetual easement in said ten foot strip of ground in favor of the church lot, for the purpose of light and air.</p> <p>II. That said easement passed by a conveyance of the church lot, and was not extinguished by the conversion of the church building into a business house.</p> <p>III. That so long ás the easement is useful to the dominant estate, the owner thereof may enjoin its infringement as a private nuisance.</p> <p>Poítenbargek, P., and Miller, J., dissenting.</p>

<p>1. Vendor and Purchaser — Abatement of Price — Breach of Covenant.</p> <p>In a suit to enforce a vendor’s Hen equity Has jurisdiction to award relief to the grantee by abating from the purchase price any damage resulting from a breach of his grantor’s covenants; and the damage may be ascertained either by directing an issue quantum clamniftcatus to be tried by a jury, or by reference to a commissioner, (p. 643).</p> <p>2. Covenants — Performance or Breach — Covenant against Incum-brances.</p> <p>A covenant against incumbrances is one in presentí; and, if broken at all, is broken the instant it is made. (p. 645).</p> <p>3. Same.</p> <p>Such a covenant is broken by the existence, at the time of executing the deed, of a continuing right of way over the land granted, in favor of a third person; and if such easement materially affects the value of the land, it entitles the cove-nantee, at once, to substantial damages, whether the easement be in actual use, or be only potential, (p. 643).</p> <p>4. Same.</p> <p>The true measure of damages, in such case, is the difference between the market value of the land.subject to the easement, and its market value if the easement did not exist, (p. 645).</p> <p>5. Vendor and Purchaser — Breach of Covenant — Abatement of Price.</p> <p>A covenant of general warranty is so far broken by the failure of plaintiff’s title to a portion of the land granted, even though the grantee’s possession has not been actually disturbed, as to authorize a court of equity to relieve the grantee against the payment of the purchase price pro tanto, (p. 645).</p> <p>•■6. .Equity — •Vendor and Purchaser — Rights of Parties — Abatement of Price.</p> <p>In case of the failure of plaintiff’s title to a 'particular portion of the land granted, the amount to be abated on account thereof is not ascertained by the average price per acre for the whole tract, but is the relative value of the land lost. (p. 645).</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Action by Mellon & Sons against the Grafton Gas & Electric Light Company and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Reformation of Instruments — Deeds—Grounds—Issues.</p> <p>The case presented hy the bill seeking reformation of a deed because not conforming to the prior contract, and because of the alleged mistake of the scrivener who drafted the deed, is not supported by the proof; but the evidence shows plaintiff entitled to relief in one particular not covered by the hill, (p. 653).</p> <p>2. Same — Equity Jurisdiction.</p> <p>Equity may reform a deed or contract where hy fraud, accident or mistake of the scrivener, or by any other means, the same does not conform to the actual agreement of the parties, (p. 655).</p> <p>3. Appeal and Error — Pleading—Issues and Proof — Amendment to Conform to Proof — ¡Review—Determination of Cause.</p> <p>In a case like this, before dismissing the hill, the general rule is, to give plaintiff leave to amend his bill so as to present the case made by the proof; and if the court below omits to do this, the error in the decree appealed from may be corrected here. (p. 656).</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Action by John Clayton against Lucretia Clayton. Judgment, for plaintiff, and defendant-appeals.</p>

<p>1. Judgment — Vacation—Time for Proceeding.</p> <p>A judgment duly rendered by a court of record haying jurisdiction of the parties, upon an appeal from a justice, imports a verity, and can not he impeached, vacated or annulled except during the term at which it is entered, and thereafter only for cogent reasons, (p. 662).</p> <p>2. Motions — Nunc Pro Tunc Orders — Operation.</p> <p>While a nunc pro tunc order is retroactive, the court may look to it. as of the date of the entry, to ascertain the particulars in which it varies from the former order, and, if variant, determine from it the actual facts therein recited, (p. 661).</p> <p>3. Partnership — Death of Partner — Judgment Against Surviv-</p> <p> ing Partner. </p> <p>A judgment against a surviving partner in effect hinds the social assets of the partnership under his control, and is enforcihle by execution, (p. 662).</p> <p>Robinson, Judge, absent.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Herbert Ividwell against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Hancock County.</p> <p>Action by the New Cumberland Savings & Trust Company against N. W. Ballentyne and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Appeal ard Error — Review—Discretion of Trial Court — ■ Ruling on Motion to Raise Default.</p> <p>Where a plaintiff stands by and voluntarily suffers a default and dismissal, by failure to reply to defendant’s plea, the court has discretion to refuse to raise the default at a later time in the absence of excuse by the plaintiff, and that discretion can not be reversed on appeal when the record affords nothing to show abuse of the same. (p. 676).</p> <p>2. Dismissal and Nor-Stjit — Vacation—Discretion of Court.</p> <p>Code 1906, ch. 127, sec. 11, does not peremptorily require every dismissal or non-suit to be set aside simply because the court is asked to do so. The court has a sound discretion in the premises, (p. 672).</p>

Suit in equity by the West Virginia National Bank and others against W. S. Spencer and another. From a decree for defendants, plaintiffs appeal.

<p>Error to Circuit Court, Monroe County.</p> <p>Action by the Greenbrier Valley Bank against George W. Bair, Sr., and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Specific Perotobmance — Nature of Contract — Contract of Insurance.</p> <p>Equity has jurisdiction to enforce specific performance of a contract for insurance, or in lieu thereof give 'decree for the loss sustained thereunder, (p. 691).</p> <p>."2. INSURANCE — Contract—■Application.</p> <p>An agent of a mutual fire insurance company authorized to solicit applications and give receipts for premiums and membership fees and take premium notes, on blank forms provided by defendant, on receiving his application money and note, and on the same day executed and delivered to plaintiff the following receipt: “Received of W. D. Tucker on Application for Insurance against Loss or Damage by Fire or Lightning by the Farmers’ Mutual Fire Association of West Virginia, on property to the amount of $1200.00 for the term of Three years; Cash Premium paid $3.00; Membership Fee paid $2.00, Total $5.00. Note for premium, etc., due on' the .day of.,19__ for $.with '6 per cent, interest from date until paid. If paid within •sixty days interest waived; if not then paid interest will be ■charged from date, all of which are to be returned if a policy be not issued. Policy to be sent by mail. Dated at residence this 13th day of October, 1910. Insurance takes effect noon 13th day of October, 1910.” Signed, “W. E. Lowther, Agent.” •“Home Office, Fairmont, West Va.” The application and receipt, under the constitution and by-laws of the ■ defendant •and facts proven constituted a contract for immediate insur.ance, binding the company for' any loss sustained thereafter -and before policy issued, (p. 692).</p>

<p>Error to Circuit Court, Mercer .County.</p> <p>Action by the Bluefield Produce & Commission Company ■against the City of Bluefield. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Action by A. J. Caroway against L. S. Cochran. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Railroads — Accident ot Grossing.</p> <p>A partial "but substantial equipment by a railroad company of a portion of its track through a city, town or village in the manner usually adopted at public crossings, and as a convenient means of access to and from a nearby public highway, operates as an implied invitation to the public to so use such crossing; and, if so generally used by it that the company through its employes must be cognizant thereof, the company is thereby charged with the duty of exercising the same degree of care as the law imposes at a public crossing, ’(p. 703).</p> <p>2. Same.</p> <p>Propelling a train of cars by an engine in 'mid-train, over such, frequented crossing, on a dark night, without signal or warning or light on or about the forward car, is negligence, and if injury results, the operating company is liable therefor in damages to the person so injured, in the absence of negligence on his part contributory thereto, (p. 706).</p> <p>3. Negligence — Contributory Negligence — Burden of Proof.</p> <p>Where plaintiff has shown negligence on the part of defendant, if the latter relies on contributory negligence of plaintiff to defeat recovery, the burden is on defendant to prove such negligence, unless it is disclosed by plaintiff’s evidence or may be fairly inferred from all the circumstances; and, in the absence of such proof or inference, the person injured must be presumed to be without fault, (p. 70'6).</p> <p>4. Railboads — Accident at Crossing — Negligence.</p> <p>A case holding the railroad crossing at which the injury occurred to be of such public character as requires the operating company to exercise reasonable care to prevent injury, and the company liable in damages for injury caused by its negligence in that respect, (p. 703).</p>

<p>1. Master and Servant — Contract of Employment — Furnishing Medical Services.</p> <p>Where an incorporated lumber company agrees with an employee, in consideration of monthly deducations therefor from his wages, to furnish a competent and skilled physician to attend to and treat him for any sickness or accident occurring while in its service, it is bound thereby to select and retain for that purpose a physician having the knowledge and .skill ordinarily possessed by other members of his profession in the same community, (p. 711).</p> <p>2. Same — Medical Services — Contract to Provide — Injuries to Servant — Malpractice—Scope of Liability.</p> <p>Should the company fail to perform the duty so imposed, and by reason thereof the employee is injured, it is liable in damages to the servant, to the same extent as the physician himself would be were he sued for the injury, (p. 711).</p> <p>3. Same — Injuries to Servant — Medical Attention — Injuries— Action Against Master — Nature and Form.</p> <p>In such case, the injured employee may maintain against his employer either assumpsit upon the contract or trespass on the case for the tort. (p. 713).</p> <p>4. Corporations — Contract—Medical Attention to Employees.</p> <p>The contract stated is not ultra vires, (p. 713).</p>

<p>1. Evidence — Best ana Secondary.</p> <p>Oral testimony is admissible to prove title to personal property, notwithstanding there is a writing, not produced, evidencing the same fact. (p. 717).</p> <p>2. Same.</p> <p>In a controversy between a creditor of the drawer of a draft, who has attached the fund in the hands of the collecting bank, and the endorsee thereof, concerning title to the fund, oral evidence is admissible to prove title without the production of the draft, (p. 717).</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by South Penn Oil Company against A. P. Haught, trustee of Joseph S. Smith. .Plaintiff’s bill was dismissed, and it appeals. :</p>

. Action by Joel Holley, us Sheriff, etc., against the Lincoln County Land Association and others. From a judgment in favor of plaintiff,-defendant George L. Estfbrook and others, trustees, etc., bring error.

Bill in equity by George-W. Hedrick against the County Court of Summers County and others. From a decree denying an injunction and dismissing the bill, plaintiff appeals.

County. Action by Alcinda Hayhurst and others against James B. Hayhurst, revived after the death of one of the plaintiffs by joining the administrator, and by scire facias against the administrator and heirs of the defendant, also dying 'pendente lite. Judgment for plaintiffs, and defendant’s administrators appeal.

Condemnation proceedings by the' Kanawha Central Bail-way Company, against T. L. Broun and others. Judgment for plaintiff, and. defendant Briar Creek Bailway Company brings error.

<p>Error to Circuit Court, Randolph County.</p> <p>Action by the Williamsport Hardwood Lumber Company against the Baltimore & Ohio Railroad Company. Judgment for plaintiff and defendant brings error.</p>

<p>1. Master and Servant — Injuries to Servant — Care Required— Warning Servant.</p> <p>The master is not required to give the servant warning of dangers that can not reasonably be anticipated, (p. 751).</p> <p>2. Same — Injuries to Servant — Assumption of Rislc.</p> <p>Where the servant is of sufficient discretion to appreciate the 'dangers incident to the work, and he has equal knowledge with the master of the dangers, he takes the risk therefrom upon himself, (p. 751).</p> <p>3. Same — Injuries to Servant — Gare Required.</p> <p>The measure of the care required to be exercised by the master toward the servant must be gauged by the circumstances involved. The master is not an insurer. He is only required to exercise such ordinary and reasonable care as the nature and dangers of the business demand, (p. 752).</p> <p>4. Same — Injuries to Servant — Evidence.</p> <p>For the servant to maintain an action against the master, for injury received in the employment, the evidence must prove that the master was negligent of his duty to exercise reasonable care for the protection of the servant, and that such negligence caused the injury, (p. 752).</p>

<p>1. Action — Pleading—Joinder of Causes — Permanent and Temporary Damages.</p> <p>Claims for permanent and temporary damages to real estate, growing out of tlie same act, may tie united in one action ' and in a single count of the declaration, (p. 756).</p> <p>2. Pleading — Allegations in General — Surplusage.</p> <p>If the facts stated in such a declaration warrant recovery of temporary, but not permanent, damages, allegations as to the latter are treated as surplusage, (p.756).</p> <p>3. Trespass — Damages—Measure.</p> <p>In an action by an owner of land for damages for a trespass, consisting of the building and maintenance of a structure on his land by an owner of adjacent land, only temporary damages are recoverable, and the measure thereof is the rental value of the land together with compensation for loss of crops, trees, shrubbery and the like, and injury to the residue of the lot or tract, (p. 758).</p> <p>4. Same.</p> <p>In such case, neither the estimated cost of abating or removing the structure nor general depreciation in the value of the property as a whole can be recovered, while the trespasser remains in possession, (p.758).</p> <p>5. Boundaries — Description—Conflicting Elements.</p> <p>If there is inconsistency between the calls in a deed for courses and distances, on the one hand, and, on the other, an artificial monument, or its ascertained location when it has been removed or destroyed, the latter prevails, (p. 766).</p> <p>6. Evidence — Materiality.</p> <p>Tendency of evidence, in an appreciable degree, to. sustain a material issue of fact, makes it admissible and justifies instructions founded upon it. (p. 767).</p> <p>7. Trespass — -Acts Constituting Burden of Proof.</p> <p>One who enters upon the bare possession of another is prima facie a trespassed, and,.to make good his defense to an action for the trespass, must prove to the satisfaction of the jury by a preponderance of the evidence that he is the true owner, (p. 768).</p> <p>8. Adverse Possession — Actual Possession — Necessity for Inclosure.</p> <p>The other requisites of the law of title by adverse possession under a claim of title only having been complied with, actual physical enclosure of the land by fence is not necessary, if the claimant has shown his occupancy and claim of title and the limits thereof in some other reasonably certain way, as by clearing and cultivation, or cultivation without clearing, or by some recognized mode of improvement. Nor is it necessary that such cultivation or improvement extend to the line claimed at every point, if the acts done manifest unequivocal intent to claim up to the line. (p. 768).</p> <p>9. Trespass — Actions—Form of Remedy.</p> <p>An owner of land in actual possession of part thereof may maintain trespass on the case against a trespasser in possession of another part thereof, claiming title to it, and recover such temporary damages as have resulted from the injury done by the entry, occupancy and other wrongful acts. (p. 773).</p> <p>10. Trial — Verdict—Interrogatories.</p> <p>The trial court may properly refuse interrogatories, asked for under the provisions of section 5 of chapter 131 of the Code, if they are not so framed as to make an answer to one of them or the answers to all of them fatal to a general verdict against the party requesting them, and entitle him to final judgment on the answer or answers, as the case may be, provided the special finding or findings are favorable to him. (p. 774).</p> <p>11. Same.</p> <p>Interrogatories, seeking a mere itemization of the damages assessed, on the assumption of an adverse general verdict, or the disclosure of some other fact, inconclusive in character, and which may or may not, according to the answer, give support to a motion' for a new trial, are not within the purpose or intent of the statute, (p. 774).</p> <p>(Robinson and Brannon, Judges, dissenting in part)</p>