Volume 73 — West Virginia Reports

Action by the State on relation to the Fortney Lumber and Hardware Company against the Baltimore & Ohio Railroad Company, a corporation. Defendant was found guilty of contempt and adjudged to pay a fine, and brings error.

<p>1. Divorce — Application for Ahsolute Decree — Practice.</p> <p>An application, under §13, Ch. 64, Code, for an absolute divoree, subsequent to a decree of divorce a mensa et thoro. must be by petition or bill averring grounds for relief, and upon the usual process and proceedings at rules, as prescribed by the ordinary principles of equity practice, (p. 9).</p> <p>2. Depositions — Admission in Evidence — Divorce.</p> <p>Depositions taken before the filing of the bill or other pleading, and before process or appearance, can not be read on the final hearing of a cause. They should be suppressed on the motion of the opposite party, (p. 12).</p> <p>3. Holidays — Talcing Depositions — Ackmssion in Evidence — Notice.</p> <p>Nor can depositions taken on a legal holiday, under a notice specifying that day, be read on final hearing, except with the consent of parties; the notice,'by virtue of Oh. 15L, Code, being taken to intend the following day. (p. 12).</p>

Motion under Code 1906, ch. 101, § 5, for contribution, by James W. Selvey’s executor against Adolphus Armstrong’s administrator. Judgment for moving party, and Armstrong dying thereafter, G. II. A.-Kunst, administrator of his estate, brings error.

Bill by Abijah Hays, administrator, etc., and others, against Thomas A. Harris and others. Erom a decree for plaintiffs, defendants appeal.

<p>I. Municipal Corporations — Special Assessments — Collection 6y Personal Action — Delegation of Power.</p> <p>The Legislature has the constitutional right to confer upon cities, towns and villages the power to collect special assessments, for street improvement, by personal action against tbe property owner, in any court of competent jurisdiction, (p. 35).</p> <p>: 2. -Same.</p> <p>It may also empower such, municipalities to determine for itself, by ordinance, the manner of collecting its taxes and assessments, p. 35).</p> <p>3. Same — Charter—Amendment by Statute.</p> <p>Chapter 47, Code, concerning the powers conferred upon municipalities and' their officers, is an amendment to the special charters of all cities, towns and villages in- the state, except 'the City of Wheeling, in so far as said chapter does not conflict with their special charter, regardless of when such charters were granted, (p. 33).</p> <p>4. Same — Jurisdiction—Personal Action by City.</p> <p>In view of the powers delegated to it by Sections- 34, 35 and 36, Chapter 47, Code, and an ordinance duly passed by it providing for the levying of special assessments for street improvement, and1 the collection thereof by suit “before a competent court,” a city may bring a personal action therefor against the property owner, before a justice of the peace, the amount thereof being within his jurisdiction. (p. 31).</p> <p>5. Appeal and Error — Presentation Below■ — Amount of Verdict.</p> <p>Error in the amount of a verdict, found upon a demurrer to evidence, can not be noticed in this court, if no motion, to set it aside was made in the court below, (p. 34).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by. William Bashar against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Boundaries — Conflicting Elements- — Oil and Gas Lease — Construction.</p> <p>While a call for quantity will never control other definite description' of land, yet when all other elements of description lose their superiority through ambiguities and uncertainties-the quantity called for in a deed may be considered in ascertaining the land intended to be conveyed, (p. 43).</p> <p>2. Contracts — Construction—Intent.</p> <p>If a written contract is ambiguous in meaning, the practical construction put on it by the parties thereto may be considered in explanation of its true meaning, (p. 44).</p> <p>3. Evidence — Offer of Compromise — Admission.</p> <p>Where, in an offer of compromise, a plain concession is in fact made, and not stated merely hypothetically for the purpose of buying peace, it is allowable in evidence as an admission, (p. 44).</p> <p>4. Ejectment — Bight of Becovery- — Possession.</p> <p>, The doctrine that a plaintiff in ejectment may recover on the strength of prior possession without more has no application where the defendant has acquired the possession peaceably and in good faith under claim of title, (p. 45).</p> <p>5.' Trial — Direction of Verdict.</p> <p>In a case not turning on. conflicting oral testimony involving the credibility of witnesses, the court may properly direct a verdict for the party in whose favor the evidence plainly and decidedly preponderates. (p. 45).</p>

<p>1. ■ Criminal Law — Jurisdiction—Premature Transfer.</p> <p>Upon an indietment for murder the circuit court was not without jurisdiction, because the clerk of the criminal court prematurely certified the same to that court, section 2, of chapter 12, Acts 1911, abolishing such criminal court, having operated proprio vigore to effect such transfer, and give the circuit court jurisdiction at the time of the trial, (p. 47). '</p> <p>2. Same — Appeal—Discretionary Puling' — Order of Proof.</p> <p>A judgment of conviction in such ease is not reversible because the trial court exercising a reasonable discretion refused to admit evidence of the good character of defendant at a particular stage of the trial, (p. 48).</p> <p>3. Same — Harmless Error — Exclusion of Evidence.</p> <p>Though on the trial of an indietment for murder the court may err in refusing to admit at a particular time evidence of a material fact, the judgment will not be reversed on that account when the record shows that the evidence was subsequently admitted in the ■ progress of the trial, (p. 48).</p> <p>4. Homicide — Instructions—Self Defense.</p> <p>When on the trial of an indietment for murder there is appreciable evidence on the subject it is reversible error for the court to reject instructions proposed by defendant properly .presenting the law of self-defense, (p. 48).</p>

<p>Petition for writ of habeas corpus by Jesse V. Sullivan against Bonner H. Hill, sheriff, etc.</p>

<p>1. Minks and Minerals — Sale of Coal in Place — Eight to Bescind.</p> <p>The grantee of eoal in place in a deed conveying all the eoal in a tract of land cannot rescind the sale merely because the coal area in the land is not as large as he had hoped or expected to obtain, provided there is á substantial quantity of coal in the land. (p. 57).</p> <p>2. Same.</p> <p>Nor can rescission of the sale executed by such deed be had because of non-existence of a particular coal vein or measure in the land. (p. 57).</p> <p>3. Evidence — Parol—Deed to Coal in Place.</p> <p>On a bill for such rescission, parol evidence to prove expectancy of a particular vein or a representation of the presence thereof in the land is inadmissible, (p. 58).</p> <p>4. Mines and Minerals — Sale of Coal in Place — Deficiency in Quan tiiy — Abatement from Price.</p> <p>Under a sale of land or coal by the acre, there may always be an abatement from unpaid purchase money, or a recovery of purchase money paid, in case of a deficiency in the quantity of the land or eoal. (p. 59).</p> <p>5. Same — DeedI to Coal m Place — Ambiguity.</p> <p>A deed for coal, conveying a certain .number of aeres as acres of coal in consideration of a sum of money which is an exact multiple of the number of acres specified, is ambiguous on its face as to whether it is .a sale by the acre or a sale in gross, (p. 59).</p> <p>6. Same — Deed to Coal in Place — Construction.</p> <p>In such ease the purpose of the vendee to obtain coal, not land, non-existence of eoal in a large portion of the land and an option for purchase of the eoal in the land at a certain price for each and every aere of the eoal, under -which the deed was made, may be considered in seeking the intent of the parties and the deed read in the light thereof is properly construed as embodying a contract of sale by the acre. (p. 59).</p>

<p>1. Fraudulent Conveyances — Action to Set Aside — Defense—Proof.</p> <p>In a suit to set aside a conveyance or transfer of property or a charge thereon for fraud, payment of full, fair and adequate consideration for the property or claim is an affirmative defense on the part of the purchaser or claimant of the lien, to be established by clear proof, (p. 65).</p> <p>2. Same.</p> <p>To sustain the claim of payment of consideration in such case, when the amounts are large, the testimony of the grantee, if uncorroborated by receipts, memoranda, or other documentary evidence, must be clear, positive, definite, consistent with other evidence offered by him, and free from self-contradiction, (p. 65).</p> <p>3. Appeal and Error — Disposition of Cause — Defective Pleading.</p> <p>If, in a suit by creditors to set aside a conveyance or charge as fraudulent, the evidence establishes the fraud, but the bill is deficient in its allegations, the decree subjecting the property to sale will be reversed and the cause remanded with leave to amend the bill, (p. 66).</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>Sriit by R. L. Clark, trustee, etc., against C. P. Nickell and others. Prom decree for defendants, plaintiff appeals.</p>

<p>Husband and Wife — Wife’s Separate'Estate — Sale of Bealty.</p> <p>A contract by a married woman, living with her husband, for the sale of her real estate, to be enforceable, must not only be in writing, but signed and acknowledged by both of them.</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Action by J. F. McDonald and .others against the McDonald Planing Mill Company and others. From the judgment the Federal Lumber Company, and others appeal.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit in partition by Albert Wright and others against Timothy Pittman and others. Prom the decree the Hope Natural Gas Company appeals.</p>

<p>1. Appeal and Eerok — Harmless Error — Instructions.</p> <p>Where under the ease as presented, as a matter of law the' judgment could only be that which has been entered, the appellate court will not reverse for errors in instructions to the jury. (p. 88).</p> <p>2. Ejectment — Title of Plaintiff' — Construction, of Deed — Other Instruments.</p> <p>In ejectment, the plaintiff can not extend the description in his deed by reference to a patent or other paper not referred to or adopted for description in the deed. (p. 91).</p> <p>3. Evidence — Parol Evidence — Construction of Deeds — Extrinsic Evi- , dence.</p> <p>Description of land in a deed, free and clear from ambiguity, can not be varied, controlled or contradicted by parol or extrinsic evidence. It is conclusive as to what land is intended to be conveyed by the deed. (p.91).</p>

<p>1. Railroads — Fires —Instructions.</p> <p>In an action against a railway company for destruction of property by fire alleged to have been started by sparks emitted from a . locomotive, it is error to instruct the jury that the presumption of negligence, which arises from proof that the fire started from sparks so emitted, may be repelled, by proof that the locomotive was equipped with an approved spark arrester, without more. (p. 94).</p> <p>2. Same — Fires—Presumption of Negligence — Proof to Pébut.</p> <p>In such case, the presumption of negligence, which arises from proof that sparks from the locomotive started the fire, can only be repelled by proof that the locomotive was constructed, equipped, and operated in a reasonably safe way in relation to" danger of fire therefrom, (p. 94).</p> <p>3. Same — Negligent Equipment — SparTc Arrester.</p> <p>It is not required that the locomotive be equipped with the best . and most approved spark arrester, but only with an approved and reasonably safe one. (p. 95).</p>

<p>1. Wills — Construction—Extraneous Evidence.</p> <p>A provision in a will, giving the interest on a certain fund “to the Foreign Missionary Society to be sent directly to the Board”, read in the light of extraneous evidence establishing the existence of a foreign corporation under the name, “The Board of Foreign Missions of the Methodist Episcopal Chureh”, the non-existence of any other missionary society of said church governed by a board, a long, close and active affiliation of the testatrix with the Methodist Episcopal Church, her work as an evangelist in that church and her active support of its foreign missionary work, is interpreted as giving the interest on said fund to said Board of Foreign Missions of the Methodist Episcopal Church, (p. 97).</p> <p>2. Same — Construction—Limited) Bequest of Interest.</p> <p>A bequest of the interest on a fund without limit as to time is, in law, a bequest of the fund itself, (p. 101).</p> <p>3. Wills — Construction—Besiduary Bequest.</p> <p>A gift by will of the remainder of the interest on a certain fund, after appropriation of portions thereof to two other purposes which fail for indefiniteness and uncertainty, is a residuary bequest of the interest on such fund and carries with it the void legacies given out of the same. (p. 10).</p> <p>4. Same.</p> <p>In a will bequeathing a fund to the Board of Foreign Missions of the Methodist Episcopal Chureh, in the manner .and form above shown, a subsequent clause giving the remainder of another sum of $1,000.00 to the “Missionary Society”, read in connection with the previous gift to the Board of Foreign Missions and the extraneous evidence in the ease, is interpreted as giving said remainder to the Board of Foreign Missions of the Methodist Episcopal Chureh; and, the first gift of $10<).00 out of said fund having failed, the entire fund of $1,000.00 goes to said Board of Foreign Missions, (p. 102).</p> <p>5. Same. — Bill of Conformity — Scope of Inquiry.</p> <p>On a bill of conformity, filed by-the executor of a will disposing of both real and personal property, but giving him no interest in the real estate nor power of disposition thereof nor charging him with any duty respecting the same, the court can decide nothing as to the validity or interpretation of the clause disposing of the real estate, (p. 103).</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by Henry S. Wilson against Samuel W. Shrader. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by Francis Duval against E. T. Crawford and others. Decree for defendants, and complainant appeals.</p>

<p>New Trial — Joint Defendants — Denial as to Certain Defendants.</p> <p>Where, in a joint action for tort against three persons, who unite in the same pleas, the jury finds generally against all of them, the court may, in passing on their motion for a new trial, and the plaintiff's motion for judgment on the verdict against two (naming them), whose guilt the evidence establishes, and to dismiss as to the other, render such judgment as to the two defendants, and set aside the verdict as to the third, of whose guilt there is no proof.</p>

<p>1. Receivers — Termination of Suit — Jurisdiction Over Property.</p> <p>Property or funds in the hands of a receiver is in custodia legis; and if the suit should terminate for want of'jurisdiction, or any other cause, .the court still has jurisdiction for the purpose of making restoration to the owner of such property or funds, or to the person who has acquired a legal right thereto, (p. 134-5).</p> <p>2. Same — Sale of Property — Accounting.</p> <p>If the receiver has, in good faith, sold the property under diree- ’ tion of the court, he should not be required to account for more than its value at the time it was wrongfully taken, (p. 138).</p> <p>3. Same — Sale of Propérty — Accounting■—Evidence of Value.</p> <p>After due advertisement for competitive bids for a stock of goods offered for sale in bulk, the' highest bid received should be taken as evidence of their value rather than the value evidenced by an invoice thereof taken by the owner, (p.138).'</p>

<p>1. Frauds, Statute or — Credit to Promisor — Primary Obligation.</p> <p>A letter, authorizing the addressee to purchase from a merchant with whom he had been dealing, but who had refused him further credit, goods needed to enable him to complete a contract with the writer, containing the writer's promise that he would send his cheek, on receipt of monthly statements of account approved by the addressee, upon the faith of which credit is extended, and approved monthly statements of account rendered to the writer, creates a primary and binding obligation on him to pay such accounts, (p. 141).</p> <p>2. Same — Credit to Promisor — Charges on Creditor’s BooTcs.</p> <p>In an action against the author of the letter for the price of goods so sold, it is immaterial that the books of original entry do not show that they were charged to him. (p. 141).</p>

<p>Master and Servant' — Warning of Danger.</p> <p>It is the master’s duty to warn the servant of any danger incident to the business, which is not patent to the servant, or which by reason of inexperience or incompetency the latter is not likely to know or appreciate, and for neglect of such duty, if the servant is injured thereby, he may recover from the master.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Jim Angelina was convicted of murder in the first degree, and brings error.</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by A. M. Berry and others against John P. Berry. Decree for complainants, and defendant appeals.</p>

<p>1. Execution — Forthcoming Bond• — Enforcement-—Notice.</p> <p>A notice of a motion for execution on a forthcoming bond, which does not show the value of the property taken under the execution and released under the bond, is insufficient and should be quashed on motion, (p. 153).</p> <p>2. Same — Forthcoming Bond — Validity.</p> <p>Such defective notice is amendable, since it .answers the purpose of a pleading, but, if the bond is produced in the proceeding and discloses omission of any recital therein of the value of the property, the bond itself and the proceeding thereon are incurably defective and! eamnot be saved, by an amendtaent. (p. 153).</p> <p>3. Same — Forthcoming Bond — Notice—Amendment.</p> <p>If such bond is good as a common law obligation, the cause of ■action arising upon it is wholly different from that involved in a proceeding upon a valid forthcoming bond, and an amendment of the notice so as to authorize procedure thereon would introduce a new cause of action, (p. 155).'</p>

<p>1. Municipal Corporations — Employment of Attorney — Authority— Contract.</p> <p>The employment of an agent or attorney to perform a special service for a municipal corporation need not, in the absence of a statute requiring it, be evidenced by a formal ordinance, by-law, or resolution, nor is it essential that it be in writing, (p. 158 ).</p> <p>2. Prohibition — Conditions Precedent- — Discretion.</p> <p>The rule under which a supervising court sometimes requires an applicant for a writ of prohibition first to make application to the lower court for discontinuance or vacation of the proceeding or action complained of on the ground of laek of jurisdiction, is a discretionary one of courtesy and deference to the court below, and does not apply if it appears in any manner that such court has acted deliberately or has considered the question of its jurisdiction and intends to proceed, (p. 159).</p> <p>3. Courts — -Prohibition—Jurisdictional Fads — Time for Consideration of Pleading.</p> <p>When the jurisdiction of a court depends upon the existence of faets, it has no right or power to proceed or act upon a pleading which does not substantially set forth such facts, and, if it has acted upon such insufficient pleading, its claim of right to time for consideration of the sufficiency thereof does not justify or sustain its action in refusing to vacate the void order, (p. 162).</p> <p>4. Municipal Corporations — Powers-—Control by Courts.</p> <p>In the absence of a statutory right of supervision or control, a court cannot, at the instance of citizens and' tax payers, in any manner restrain or control the governing body of a municipal corporation, in the exercise of powers and' functions vested in it by law, whether the discretion and power so vested is legislative, executive or administrative, (p. 164).</p>

<p>1., Eminent Domain — Remedy of Property Owner — Ejectment.</p> <p>Ejectment lies to recover land taken by a railroad company for its railroad tracks, without the knowledge, or against the protest, of the owner, (p. 168).</p> <p>2.. Same — Remedy of Owner — Defenses—Estoppel "by Acquiescence.</p> <p>A land-owner who sees a railroad company constructing its railroad through his land, and makes no objection until it is completed, is estopped to sue in ejectment, or enjoin the operation of the road, (p. 168).</p> <p>3. Vendor and Purchaser — Unrecorded Deed — Validity—Subsequent Purchaser.</p> <p>An unrecorded deed for a railroad right of way is void as to a subsequent purchaser of the servient land, without notice thereof, (p. 169).</p> <p>4. Deeds — Date—Presumption.</p> <p>Prim.a fade, the date of a deed is the day of its execution, notwithstanding it was acknowledged at a later date. (p. 169).</p> <p>5. Railroads — Right of Way — Acquisition—Adverse Possession.</p> <p>The doctrine of adversary possession is applicable to land acquired by a railroad1 company for its right of way. (p. 170).</p> <p>6. Adverse Possession — Railroad Right of Way — Permissive Possession.</p> <p>When such right of way is only an easement, occupation by enclosure and cultivation of a part of it by the owner of the servient estate, until it is needed for the operation of the railroad, is presumed to be permissive and not adverse; and the statute of limitations will begin to run only from the time the railroad company has notice of the occupier’s hostile claim, (p. 171).</p>

<p>Appeal and Ekror — Verdict—TSmáence.</p> <p>Where, on a motion to set aside a verdict, a conflict of oral testimony of witnesses in the presence of the jury is not alone involved, but conflicting oral testimony is on the one side so corroborated by documentary evidence, uncontroverted facts and circumstances, or some of these, as to show that the verdict is decidedly against the preponderance of the evidence, the court may properly set -aside the verdict and award a new trial.</p>

<p>1. Equity — Grounds—Title and Boundaries.</p> <p>Equity has no jurisdiction on that ground alone to try legal title and boundary to land. (p. 178).</p> <p>2. Same — Ground's—Title md Boundaries■ — Discovery and Accounting.</p> <p>Where the main purpose of the suit is to try title and boundary to land, andi discovery and1 accounting for profits are only incidents to and. dependable on the main issues, equity will not generally take jurisdiction on grounds of discovery and accounting, (p. 180).</p> <p>3. Specific Performance — Oil and Gas Lease — Bnforcemeni.</p> <p>Equity has jurisdiction at the suit of lessor against lessee, on covenants broken, to enforce specific performance of the terms .and provisions of a lease of land for oil and gas purposes, (p. 180).</p> <p>4. Mines and Minerals- — Title of Landlord — Estoppel of Tenant.</p> <p>Where the common lessee of two adjoining tracts enters and takes possession of a particular part of the leased lands, as lessee of one of the tracts, and puts down an oil well, and by a sign in large letters placed on the walking beam and plainly visible to persons passing on the railroad and other public roads in'the vicinity of the well, giving notice thereby of the character of his holding, and under whose lease the well was drilled and is being operated, and connects such well with a tank on the land of such lessor into which the oil produced is run, and from which the oil is delivered into the pipe line of a common carrier, and for more than ten years the well is so operated, and the royalty oils paid to the lessor under whose lease such entry was made, he is not, after the statute of limitations has fully run, estopped to deny the title of the other lessor, although such well may in fact have been located on his lands, (p. 181).</p> <p>5. Landlord and Tenant — Title of Landlord — Estoppel to Deny.</p> <p>In order to work an estoppel on such lessee the lessor claiming the land must have had possession of the particular land entered and have parted with his possession to the lessee; else the relation of landlord and tenant, quoad that land, has not been established, so as to deprive the lessee entering under the adjoining lessor of rights as adverse claimant, (p. 181).</p>

<p>A case in which no new principle is announced, and in which the verdict and judgment are fully supported by the proof.</p>

<p>Appeal from Circuit Court, Pleasants County.</p> <p>Suit by the First National Bank of St. Marys and others against N. J. Williamson and’ others. From the decree, Watts, Ritter & Co., a corporation, appeals.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Suit by the Central Banking & Security Company against the United States Fidelity & Guaranty Company and others. From decree for defendants, plaintiff appeals.</p>

<p>1. Mines and Minerals — Oil ané Gas Leases — Cancellation—Grounds.</p> <p>The owner of a lease for the production of oil and gas, containing the usual terms and conditions, must, if either mineral is found in paying quantities on or near the lands leased, exereise due and reasonable diligence in prosecuting operations thereunder, for the mutual benefit of himself and the landowner; and, if he fraudulently fails or refuses to conduct such further operations, equity will, at the suit of the lessor, decree either total or partial cancellation of the lease, according to the facts and circumstances averred and proved, (p. 219).</p> <p>2. Same — Oü and1 Gas Lease — Construction—Implied Covenants.</p> <p>A lease which reserves to the lessor substantial royalties in kind and in money on the oil produced and saved and the gas used off the premises as the consideration and inducement for the lease, and which, while expressly requiring the drilling of one well during the first five years, does not by express terms define the measure of diligence to be exercised after the expiration of that period, contains a covenant by the lessee, arising by necessary implication from the nature of the lease and the character of the minerals sought, that if, during the five years allowed for original exploration and development, oil or gas or both are found in paying quantities, the work of development and production shall be continued with reasonable diligence, to the end that the extraction of oil and gas from the.lands leased shall be mutually advantageous and profitable to the lessor and lessee, (p. 219).</p> <p>3. Same — Oil and Gas Lease — Construction—Implied' Covenants — “Implication. ’ ’</p> <p>Whatever is implied in a lease is as effectual as what is expressed. Implication is but another name for intention; and if it arises from the language of the lease, when considered in its entirety, and is not gathered from the mere expectations of one or both of the parties, it is controlling. Whatever is necessary to the accomplishment of that which is expressly contracted to be. done is part and parcel of the contract, though not specified, (p. 219).</p> <p>4. Same — Oil and Gas Lease — Construction:.</p> <p>Where the object apparently contemplated by both parties to an oil and gas lease, -at the date thereof, is to obtain, from the lands leased, a benefit or profit as a result of operations thereunder, neither is, in the absence of a stipulation to that effect, the arbiter of the extent to which or the diligence with which, the operations shall proceed; but both are bound by that degree of diligence which, under the circumstances, would be reasonably expected of operators of ordinary prudence, having regard for the interests of both. (p. 221).</p> <p>5. Same — Ground» for Equitable Belief — Oil and Gas Lease.</p> <p>A case in which it is held that equity has jurisdiction to grant relief, by an entire or partial cancellation of the lease, depending on proof of facts alleged as fraudulent by a bill erroneously dismissed on demurrer, (p.223).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Condemnation proceedings by the Panhandle Traction Company against Albert M. Schenk and others. From an order James H. Emblen, trustee, and others, 'bring error.</p>

<p>Bills and Notes — Consideration—Payment of Judgment — Amount of Recovery — Consideration Paid.</p> <p>M. owed P. B. & L. Go., an insolvent corporation, and W., one of its stockholders and also its creditor, without its consent, assumed to pay M’s. debt in consideration of M’s. notes executed to him for a sum equal to the debt, with M’s. wife as surety. P. B. & L. Go. assigned its claim against M. and the assignees recovered judgment thereon .against M. W. thereupon purchased the judgment, paying therefor 50c on the $1.00 and took an assignment of it. He then executed and acknowledged a release of the judgment and brought suit against M. and wife on the notes, tendering to M. an unconditional release of the judgment. Held:</p> <p>I. That, as between the parties to it, the transaction is lawful and the notes were given for a valuable consideration which has not failed, payment and release of the judgment by W. being, in effect, a compliance with his undertaking.</p> <p>II. That, not being the agent of M., W. is not limited in his recovery on the notes to the amount actually paid by him in discharge of M’s. debt.</p>

<p>. Error to Circuit Court, Mason County.</p> <p>Action by John P. Austin against John Calloway. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by John J. Shelton against Robert Shrader and others. Judgment for defendant and plaintiff brings error.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by George McDermitt against Lewis Porbes. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by Johnston McLanahan, in his own right and ,as administrator, etc., and others, against John B. Mills and others. A decree was entered, and an appeal allowed, and plaintiffs thereafter filed their hill of review, to review the decree, and were denied relief.</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Suit by Oliver S. Marshall against James M. Porter. Prom decree for defendant, plaintiff appeals.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit by the State against "W. L. Taylor and others. Prom the decrees, defendant Pocahontas Coal & Coke Company appeals.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Motions by George P. Poland and wife and by one Blatt, as administrator of John Seidler, against Isaac H. Brownfield. Prom decrees for plaintiffs, defendant appeals.</p>

<p>1. Limitation- or Actions — What Law Governs — Non-resident Debtor.</p> <p>In an action on a writing evidencing indebtedness of a resident of another state or country to a resident of this state, made in, such other state or country, while the creditor resided here, and- specifying no place of payment, the statute of limitations of this- state, not that of the state or country in which the- contract was made, applies; (p. 277).</p> <p>2. Same.</p> <p>This clause Of see. 18 of eh. 104-of the Code of this state, “And upon, a contract which was made and was’ to be performed' in another state or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred by the laws of such state or country", is founded on the decision in Súber v. Steiner, 4 Moore & Scott 328, and contemplates- those cases in which the contract or obligation was expressly made payable in the state or country in' which the debtor resided at the time, and those, in which the facts and eircumstane.es disclose intent, to.make it payable at such place. . (p. 280). ,</p> <p>3. Payment — Action by Administrator — Evidence.</p> <p>In an action by an administratrix for the reecovery of money due on a contract, checks of the debtor subsequent in date to the contract .and bearing the endorsement of the creditor and'also memo-randa indicative'of intent' to apply them on the debt sued for, are admissible as evidence of payment, (p. 282}.</p> <p>4. Witnesses — Competency—Transactions With Decedent. ■</p> <p>If the debtor has signed such cheeks by a name other than his own, as ‘ ‘ The Browning Mines by J. S. B. ’ the defendant is a. competent witness to prove his custom or habit of paying his personal debts by checks so drawn and signed1, (p. 282).</p>

<p>1. Attachment — Affidavits—Description of Debt.</p> <p>An affidavit for an attachment, pursuant to §193, Cb. 50, Code 1906, which states the nature of plaintiff’s claim to be “for day labor on Round Bottom Job in said county and state, $54.07, and cutting timber by thousand on Round Bottom Job in said county and state, $88,92, that the said claim is just, and this affiant believes that plaintiff ought to recover thereon” the aggregate of the two items “with interest on the same from the 5th day of September, 1910”, is void for indeflniteness in description of plaintiff’s claim, and, on defendant’s motion, should be quashed, (p. 241).</p> <p>2. Same- — Affidavit—Averments of Fraud — Statement of Grounds— Quashing• Attachment.</p> <p>An affidavit for an attachment, pursuant to §193, Ch. 50, Code 1906, which states that the defendant (naming him) “has assigned, disposed of or removed his property, or a material part thereof, or is about to do so, with like intent to defraud ’ ’ his creditors, is void for uncertainty and indefiniteness in its averments of fraud-; -and the affidavit, and attachment issued thereon, should, on defendant's motion, be quashed. To avail for the purpose of a valid attachment, the affidavit should state the grounds conjunctively, not disjunctively, (p. 285).</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by Katie I. Baüey and others against Isaiah Bee and others. Prom decree for defendants, plaintiffs appeal.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill by Richard B. Lawson and others against the Pocahontas Thin Vein Coal Land Company and others. From decree for defendants, complainants appeal.</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Two suits, one by Minnie B. Stafford, and tbe other by the Hockensmith "Wheel & Mine Car Company, both against H. C. Jones and .others. From the decrees, the defendant named appeals.</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Bill by Sidney White, Committee, etc., against W. E. Mooney. Prom decree for plaintiff, defendant appeals.</p>

ounty. Two suits, both by G. W. Grass and others, one against J. F. Beard, the other against one Johnson. Both suits were dismissed, and plaintiffs appeal.

<p>1. Landlord and Tenant — Denial of Title — Estoppel.</p> <p>In ejectment, it is unnecessary for the plaintiff to show good title to the land as against a defendant in possession under him as tenant, (p. 813).</p> <p>2. Same — Estoppel to Dispute Landlord's Title — Husband and: Wife.</p> <p>Ordinarily, the law will not permit the husband to be tenant of another and the wife with whom he is living on the land leased by him to be claiming it adversely to the lessor at the same time. She will be presumed to know of the tenancy and to recognize title in the lessor, if she does not repudiate it by notice to him. (p. 314).</p> <p>3. Trial — Objection to Evidence — Waiver.</p> <p>If, during the progress of a trial, the court properly reserves decision as to the admissibility of evidence produced before the jury and the objector does not again bring'his objection to the court’s attention and obtain a ruling thereon, the objection- will be treated as waived, (p. 316).</p> <p>4. Appeal and Error — Harmless Error — Conclusion of Witness.</p> <p>A statement of inference, conclusion or judgment accompanied by the facts on which it is based is usually harmless since the jury can judge of its probative value, (p. 317).</p> <p>5. Trial — Offer of Proof — Exclusion.</p> <p>Where a party offers in evidence a writing and at the same time discloses that he has in his possession a separate writing which accompanies the one offered, necessary to a full understanding of the latter, it is not error to exclude the former if the latter is not put in evidence with it. (p. 318).</p>

<p>Attachment — Bond io Discharge — Effect.</p> <p>A bond given by a defendant and his assignees in an attachment suit, pursuant to section It), chapter'106, Code 1906, conditioned to perform the judgment or decree of -the court, dissolves the attachment, as the statute plainly contemplates. The bond then stands in lieu of the property attached. The attachment has expended its force, and thereafter nothing is left on which it can operate.</p>

<p>1. Appeal and Error — Records-—Deposition—Want of Service.</p> <p>Apparent want of .service of a notice to take a deposition read on the trial in the eourt below over a general objection will not be regarded on writ of error here when it is made to appear from a corrected record certified from the lower court that notice thereof was in fact duly accepted by counsel, (p. 324).</p> <p>2. Master* and Servant — Employment—Fabricated Contract — Sufficiency of Evidence.</p> <p>The evidence in this case is not sufficient to overcome the verdict of the jury against defendant’s theory that the contract sued on was a fabricated contract, (p. 324).</p> <p>3. Corporations — Officers—Term of Office — WorTcmen.</p> <p>Section 53, chapter 53,-Code 1906, relating to corporations providing that, “The officers and agents so appointed shall hold their places during the pleasure of the board’’, does not apply to persons employed to perform work, such as carpenter work, and who are in no way to act in a representative capacity, (p. 328.)</p> <p>4. Same — General Manager — Authority—Contrast-—Validity.</p> <p>There is no apparent authority in the general manager of a corporation operating a summer hotel, due to the nature of his office, to make unusual, extraordinary or unnecessary contracts for labor, such as carpenter work, extending beyond the term of his own employment, but when with specific direction of the president, or there is no abuse of such authority and no fraud or imposition practiced in making such contract, it is not necessarily void. (p. 327).</p> <p>5. Same.</p> <p>A proposal in writing by such corporation operating such hotel through such general manager, to a mechanic, to furnish him carpenter work, at a definite price per day, and for a definite time, running for a short time into another season and beyond the term of such general manager, when duly accepted and the -work entered upon, is not void for want of authority express or implied on the part of such general manager to make the contract, and as being an unusual, extraordinary or unnecessary contract, (p. 328).</p> <p>6. Contracts — Mutuality—Work and! Labor.</p> <p>Nor is such a contract or proposal, when so accepted, void for want of mutuality of obligation on the part of the contracting .parties, (p.329).</p>

<p>1. Divorce — Ground's—Violence.</p> <p>Actual violence, to constitute ground for divorce, must be attended with danger to life, limb or health, or be such as to cause reasonable apprehension of such danger, (p. 331).</p> <p>2. Same — Groundls—Urmatural Conduct — Desertion—What Constitutes.</p> <p>Vulgar, indecent and unnatural conduct on the part of a wife and her solicitation of the husband to engage in such conduct with her, showing viciousness and degeneracy on her part, are not sufficient grounds for divorce, nor do they justify the husband in breaking off cohabitation with her and treating her as having abandoned or deserted him. (p. 332).</p> <p>3. Same — Grounds—Adiiltery—Circumstantial Evidence,</p> <p>Though circumstantial evidence is admissible and sufficient to prove adultery in a suit for divorce, it must be so clear and strong as to carry conviction of the truth of the charge, and, if it does no more than raise a suspicion of chastity, it is insufficient, (p. 332).</p> <p>4. -Same — Decree for Alimony — Bight.</p> <p>A wife who has been abandoned and denied support by her husband may have a decree for alimony without a divorce, and such relief may be granted her in a suit for divorce brought by a husband, on a prayer in her answer therefor as affirmative relief, (p. 334).</p>

<p>1. Infants — Action—Misnomer—Technical Errors.</p> <p>In the exercise .of the right of an infant to show cause against a decree under which his land has been sold., he cannot set aside a sale fairly made to satisfy valid indebtedness for a mere technical error in procedure, (p. 838).</p> <p>2. Same — Action—Misnomer—Jurisdiction.</p> <p>If, in a suit to sell the real estate of a decedent for the satisfaction of indebtedness against it, the three infant heirs were all made parties to the bill,, two by their proper names and-the third- by a wrong name, and a guardian ad litem duly appointed filed answers for them, the mistake as to the name is a mere misnomer, eorrectible by amendment, and the party so erroneously named is deemed to have been brought within the jurisdiction of the court, (p. 338).</p> <p>3. Executors and Administrators — Admvimisiraiors Ve Facto.</p> <p>An infant improperly appointed administratrix of an estate is nevertheless an administratrix de facto and her acts as such are valid and binding, and. the appointment cannot be collaterally assailed. ’ (p. 339).</p>

<p>1. Master and Servant — Contract of Employment — Termination.</p> <p>An employment upon a monthly or annual salary, if no definite period is otherwise stated or proved for its continuance, is presumed to be a hiring at will, which either party may a.t any time determine at his pleasure without liability for breach of contract, (p. 344).</p> <p>2. Same — Contract of Employment — Construction.</p> <p>The burden of proving that such hiring was obligatory for a year rests on the party who seeks to establish that the contract covered that period, (p. 344).</p> <p>3. Same.</p> <p>Unless the understanding was mutual that the service was to extend for a certain fixed and definite period, it is an indefinite hiring, and is determinable at the -will of either party, (p. 346).</p>

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

<p>Error to Circuit Court, Lincoln County.</p> <p>Action by A. B. Mitchell and A. E. Adkins, partners, etc., against ET. A. Davis and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by R. S. Douthat, trustee, etc., against H. W. Roberts • and others. From decree for plaintiff, defendants appeal.</p>

<p>1. Contracts — Railroads—Construction Contract — Modification.</p> <p>Where plaintiffs rely on and prove a new or modified contract to build a road, made after partial performance of the original contract, and their proof shows breach of both contracts on their part, without legal excuse, and nothing done under the new, their right of recovery for work done under the original contract, can not be controlled by the provisions of the new. (p. 370).</p> <p>2. Work and Labor — Construction Contract — Actions by Contractors— Defense.</p> <p>Where by the provisions of such original contract to build a road defendant was entitled to withhold a part of the price one year after completion, as security for good workmanship and good material, and the contract has been only partially performed, by the contractors, in a suit by them for the value of the labor done and material furnished and appropriated by the defendant, defendant cannot defeat recovery by plaintiffs for the value of such labor and material, because the amount demanded is less than the amount retainable under the contract. Eight of action in such cases is not upon the contract but on the' implied promise of defendant to pay what such labor and materials are reasonably worth, measured by the contract price less payments, .and damages, and .what it would cost to complete the contract, (p. 370).</p> <p>3. Same — Partial Performance — Right to Consideration.</p> <p>Eight of recovery for work done- and material furnished under such a broken contract is dependable, however, on whether the contract is apportionable; if not, the rule is that no part of the consideration can be recovered, (p. 371).</p> <p>4. Same — Construction Contract — When Apportionable — Recovery of Consideration.</p> <p>Where such contract provides for periodical payments on the contract price, on estimates of engineers, it is apportionable, and there is no obstacle in the way of a proper recovery for the work done and material provided, (p. 371).</p> <p>5. Damages — Constmetion Contract — Breach—Measwe of Damages.</p> <p>The general rule for measuring the damages in cases of broken and partially performed contracts, is the stipulated price less pay- ' ments and the sum which it will take to complete the job according to the contract, (p.372).</p> <p>6. Same — Trial—Construction Contract — Action for Consideration — ■ Instructions.</p> <p>Instructions to tlie jury on the trial of such an action, contravening this rule of damages, were erroneous and' should not have been given, (p.372).</p>

<p>1. Corporations' — General Manager — Towers.</p> <p>The powers oí the general manager of a corporation are, as a general rule, coextensive with the business entrusted to him, and he has apparent authority to bind the corporation by all contracts reasonably incident to that business, including power and authority to modify, release, waive, extend or substitute a new contract for a contract which he had authority to make. (p. 379).</p> <p>2. Contracts — Well-Trilling Contract — Construction.'</p> <p>A contract to continue to drill .a water well to such depth as that water may be supplied therefrom, being pumped by a particular pump, at a minimum flow of twenty gallons per minute, and conditioning payment of an amount agreed as the balance due the contractor for boring the well to the first depth, and the price per foot for sinking the well deeper on performance of that contract, does not amount to a guarantee on the part of the contractor to produce a well of the desired caliber, but properly construed is an agreement to drill to such reasonable depth as may be required to produce such well, notwithstanding such contract provides that the owner is to have two weeks after completion of the well to test the capacity of the well. There is substantial performance of such contract, entitling the contractor to the stipulated price, when the well has been drilled' such reasonable depth, (p. 381).</p> <p>3. Work and Labor — Well-Trilling Contract — Partial Performance— Amount of Recovery.</p> <p>When a contract has been only partially performed, or performed in an incomplete or inferior manner, if the contract is apportion able, and the labor done and material furnished is appropriated by the other party to' the contract, he is liable to the contractor for what such labor and material are reasonably worth, to be determined by the contract price, less payments, damages sustained, and what it would cost to complete the contract, (p.382).</p> <p>4. Rulings on Instructions.</p> <p>In giving and refusing instructions to the jury contrary to these principles the court beloiv committed1 reversible error, (p. 383).</p>

<p>1. Master and Servant — Injury io Servant — Assumption of Msk.</p> <p>To charge a master with liability to a servant for injury sustained by the latter in the execution of an express direction or command of the former, it is necessary to allege the servant's ignorance of the danger incident to the performance of the act. (p.387).</p> <p>2. Same — Duily of Master — Safe Appliamices.</p> <p>A steam laundry is a place of empolyment of labor within the meaning of section 1 of chapter 19 of the Acts of 1901, serial section No. 442 of the Code of 1906, imposing upon employers of labor the duty to guard dangerous machinery, (p. 388).</p> <p>3. Same — Safe Appliances — Construction of Statute.</p> <p>In the interpretation of said statute, the rule ejusSem generis does not apply so as to exonerate a master from the duty to guard dangerous complete machines and limit it to the particular parts of machines specified, beltings, gearings, shaftings, drums and elevators, (p.389).</p> <p>4. Same — Safe Appliances — Guaráis for Machinery — Duty of Master.</p> <p>The duty imposed by the statute is to provide against such injury as is reasonably to be apprehended or foreseen as being in the line of probability, whether the result of accident or inadvertence on the part of the servant, (p. 391).</p> <p>5. Same — Injury to Servant — Failure to Guard Machinery — Anticipated Injury — Question for Jury.</p> <p>Whether .an injury resulting from failure to guard a machine or part of a machine was such as should have been anticipated, is a question for the jury, unless the evidence makes the existence or nonexistence of the danger so clear and certain as to leave no room for difference of opinion as to it in the minds of reasonable men. (p. 391).</p> <p>6. Same — Injury to Servant — Question for Jury — Fvidienee.</p> <p>When the evidence leaves.it doubtful whether the injured servant was acting within the line of his ordinary duty, at the time of the injury, the question is one for jury determination, (p. 391).</p> <p>7. Same — Injury to Servant — Failwe to Guard Machinery — Defenses Available — Assumption of Mslc.</p> <p>In an action for an injury caused by the failure of an- employer to guard a dangerous machine, the defense of'assumption of risk on the part of the servant cannot be made. (p. 395).</p> <p>8j Same — Injury to Servant — Failure to Guard' Machinery — Defenses Available — Contributory Negligence.</p> <p>In such cases, the statute does not eliminate, contributory negligence as a ground of defense, (p. 396).</p>

<p>Appeal form Circuit Court, Cabell County.</p> <p>Bill by the Island Creek Fuel Company, against I. J. Harshbarger, sheriff, etc., and others. From a decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Lincoln County.</p> <p>Action by Mitchell & McNeeley against H. A. Davis and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. Fraudulent Conveyances — Preferences—Transfer by Insolvent Debtor.</p> <p>A debt, though bona fide, due from one who is insolvent can not be preferred through a transfer of property made by him after the time .the debt is contracted, (p. 408).</p> <p>2. Same — Mortgages—Limitations—Deed of Trust — Delivery.</p> <p>A deed is not completely made until it is delivered; so where a deed of trust constituting an unlawful preference, though bearing date long previous, is admitted to record within eight months after its delivery by the grantor, a suit to have it declared an unlawful - preference, instituted within four months after the admission to record, is within the limit fixed for such suit by Code 1906, ch. 74, sec. 2. (p. 409).</p> <p>3. Same — Preference—Payments of Pre-existing Debt.</p> <p>The statute embraces within its meaning, of unlawful preferences the payment of a bona fide pre-existing debt, when such payment is brought about through the agency of a transfer of property which constitutes an unlawful preference, (p. 409).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by James 0. Cole and others against the State. Judgment for the State, and plaintiffs bring error.</p>

<p>1. Mines and Minerals — Declaration—Sufficiency—Breach of Covenant — Failure of Consideration.</p> <p>A count in a declaration in assumpsit on a covenant for quiet enjoyment in a lease, averring lack of title in the lessor, payment of rent and failure of consideration, but no eviction from the premises, nor possession thereof by* a stranger, nor hostile claim, nor molestation of the lessees by the lessor, nor obstruction in any manner of the right the lease purports to confer otherwise than by lack of title, and concluding with an averment of liability on the part of the lessor to refund the rent and a promise so to do, is not sufficient as a count for breach of the covenant, but is sufficient as one for money paid on a consideration that has partially failed. • (p. 423).</p> <p>2. Same — Oil and Gas Lease — Covenant for Quiet Enjoyment — Recovery for Breach.</p> <p>To warrant recovery for breach of a covenant for quiet enjoyment, it is necessary to prove the covenantee was in some way denied or refused right to possession of the premises or evicted therefrom or molested or disturbed as to his possession after having acquired it, by some person having paramount title or a claim of right under some act of the covenantor inconsistent with the right the covenant guarantees, (p.423).</p> <p>3. Escrows — Depository—Beneficiary—Oil and Gas Lease.</p> <p>A lease, deed or other instrument complete on its face cannot be delivered to the lessee, grantee or other beneficiary in person as an escrow. Such delivery is in law absolute, whatever the verbal under- ' standing between the parties may have been, (p 426).</p> <p>4. Monet Received — Oil and Gas Lease — Recovery of Rent Paid.</p> <p>Rent paid under a lease of 'land upon which the lessee could not safely enter on account of doubtful title in the lessor may be recovered back as money paid on a consideration that has partially failed, if paid without knowledge of facts showing defect in the title, (p.424).</p> <p>5. Payment — Voluntary Payment — Recovery—Mistalce of Law.</p> <p>Money voluntarily paid with knowledge of all the facts, but under a mistake as to the law arising thereon, cannot be recovered, (p. 426).</p>

<p>1. Landlord and Tenant — Breach by Lessee — Waiver.</p> <p>If a lessor, with knowledge of a breach by the lessee of the restriction against assignment of the lease, permits the assignee to remain in possession of the premises and accepts subsequently accruing rents from him, the breach is waived, (p. 428).</p> <p>2. Same — Bent—Lessee’s Liability After Assignment.</p> <p>Although a lessee assigns the lease with the lessor’s assent, he nevertheless remains liable on- his express covenant to pay rent, notwithstanding rent is .accepted from the assignee, unless the lessor expressly agrees to release him and substitute the new tenant in his stead, (p. 430).</p>

<p>1. Acknowledgment — Sufficiency of Certificate.</p> <p>An acknowledgment headed., “Braxton County Court Clerk’s Office, December 4th 1848,” and signed “John P. Byrne, C. B. C.”, sufficiently designates the official' character of the officer certifying it. (p. 435).</p> <p>2. Adverse Possession — Color of Title — Validity of Deed.</p> <p>A paper, purporting to convey land by proper description, though, void as a conveyance for -want of authority in the grantor, is admissible as evidence of color of title, (p. 485).</p> <p>3. Acknowledgment — Certificate—Identity of Person.</p> <p>An acknowledgment, certified, in 1855, as well as at the present time, should in some manner identify the person acknowledging as. the person wlio signed the writing, (p. 436).</p> <p>4. Same — Certificate—Admissibility of JRecord.</p> <p>An acknowledgment certified by a justice of the peace in 1855, which omits the words, "whose name is signed to the writing above, ’ ’ or words of similar import, is fatally defective and does not authorize recordation, (p.436).</p> <p>5. Evidence — Documents—Copy of JRecord — Instruments Not JRecord-aJble.</p> <p>An attested copy of a deed not properly acknowledged and, therefore, not recordable, is not evidence in lieu of the original, (p. 436).</p> <p>6. Adverse Possession — Color of Title — Inwalid Deed.</p> <p>The principal purpose of color of title is to define boundaries, and if it fails to do so with reasonable certainty, it is not admissible evidence. (p.436).</p> <p>7. Same.</p> <p>But it is not indispensable that the colorable deed should, in terms, contain a complete description of boundaries^ it may expressly refer to, and adopt, some other existing paper containing them, and a paper thus referred to becomes a part of such color-able deed. (p.436).</p> <p>' 8. Evidence — Admissibility—JRecorded Instrument.</p> <p>A paper referred to and described, as "recorded in the Clerk’s office, Braxton County Court," becomes a part of the paper referring to it, and if identified, may be read as evidence in connection therewith, even though the wrtiing was improperly spread on the record-. The reference is to the writing of record, and not to the original paper of which the record is a copy, (p.437).</p> <p>9. Acknowledgment — Authority to Talce — Deputy Cleric.</p> <p>A deputy clerk, being empowered by a statute of Virginia to ‘■‘discharge any of the duties of the clerk," could, in his own name as such deputy, certify acknowledgments to '""itings, whether intended for recordation in the office of his principal, or in .any other county court clerk’s office in Virginia, (p. 439).</p> <p>10. Same — Certificate—Sufficiency—Identity of Persons.</p> <p>The following certificate is held to be good in law and to warrant recordation in any county court clerk’s office in Virginia, viz.:</p> <p>"Braxton County Court Clerk’s Office, November 1st 1859.</p> <p>This deed from Benjamin Butler to Jeremiah Butler, was this day presented in said office, acknowledged by the said Benjamin Butler to be his act and deed.</p> <p>Teste: W. H. Byrne, Deputy Clerk.”</p> <p>The words, "acknowledged by the said Benjamin Butler,” read in connection with the description of the deed, identify the acknowl-edger as the grantor, (p. 439).</p> <p>11. Forcible; Entry and Detainer — Nature of Possession — Question for Jury, '</p> <p>If a person obtains general permission of another to occupy his land, and thereafter, and before going into possession, procures a written lease from an adverse claimant of a part of the land and ostensibly takes possession thereunder without knowledge of the former, it is for the jury to say under which claimant he holds, the question depending principally upon his bona fide®, (p. 442).</p> <p>12. Witnesses — Statement by Person Deceased — Admissibility.</p> <p>In a suit involving title to land, a former owner through whom one of the parties claims is an incompetent witness to prove admissions of his claim, made by an adverse claimant then deceased, notwithstanding title of such former owner passed from him involuntarily by means of a judicial sale and commissioner’s deed, (p. 444).</p> <p>13. Adverse Possession — Enlargements of Boundaries — Evidence.</p> <p>An adverse claimant under color of title can not enlarge his boundary by testimony tending to prove marked timber as corners and lines not called foi"in any of his colorable deeds, (p.445).</p>

J. H. Wills was convicted of selling liquor without a state license, as a druggist, not on the prescription of a physician, and he brings error.

<p>1. Equity — Exhibits—Controlling Effect.</p> <p>Documente exhibited, -witli a bill, vouching the truth of the allegations thereof, are controlling in case of discrepancy, (p. 452).</p> <p>2. Mechanics' Liens — Debt Secured — Material Furnished Contractor.</p> <p>As a general rule there can be no lien for material furnished a contractor not used and incorporated into the building or structure covered by the contract, (p. 454.)</p> <p>3. Same.</p> <p>Assuming that certain alleged exceptions to this general rule are established by the authorities cited, as where the owner refuses to permit the material to go into the building, or that labor was expended thereon at plaintiff's shop or factory on the faith of the contract, the faets here alleged do not present a case for their proper application, (p. 454).</p> <p>4. Same — Material for 'Building — Promise to Pay Price.</p> <p>/The promise of the owner to pay to a subcontractor on account of the contract price on condition, that material contracted for by such contractor is delivered will not bind the owner for material not delivered1 nor entering into the building or structure contracted for. (p. 456).</p> <p>5. Same — Extent of Belief — Foreclosure of Mechanics’ Lien■ — Perso-nal Decree.</p> <p>In this state, where the distinction- between suits in equity and actions at law, as at common law, is still maintained, and -a. subcontractor fails in allegation or proof to establish a valid mechanic’s lien, equity has no jurisdiction to. retain his suit for the purpose of a personal decree in his favor against the owner or contractor for an alleged balance due him from the contractor, (p.457).</p>

Bill by J. B. Beury and others, as administrators, etc., against H. H. Fay and others. Decree for defendants, and plaintiffs appeal.

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Suit by R. L. Milam against Letha Williams and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Insurance' — Accident Policy- — “Obvious Mslc.’’</p> <p>A person -who attempts to cross a railroad track immediately in front of a rapidly approaching train, and is ran over and killed, exposes himself to an "obvious risk of injury or obvious danger,” ■within the meaning of a condition in an accident insurance policy, limiting the liability of the insurer, (p. 474).</p> <p>2. Same — Accident Policy — “Obvious Danger.’’</p> <p>An obvious danger is one that is plain and' apparent to a reasonably observant person, and the fact that insured may not have observed it and been conscious of it at the time of the fatal accident, is not material. He owed to the insurer, as well as to himself, the duty to be reasonably careful when in the presence of an obvious danger, and his failure to use reasonable care does not excuse him. (p.475). *</p>

<p>Error to Circuit Court, Summers County.</p> <p>Action by Hinton Foundry, Machine & Plumbing Company against The Lilly Lumber Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by W. A. Curtis against S. M. Miller. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Ejectment- — Title—Beliance on Common Source.</p> <p>Por a plaintiff in ejectment to rely on common source of title, it must appear that the defendant's claim of title somewhere connects with a party under whom the plaintiff claims, (p. 489).</p> <p>2. Landlord and Tenant — Landlord's Title — -Estoppel of Tenant.</p> <p>The mere execution of a lease does not estop the lessee from denying the title of the lessor. The estoppel only arises by possession under the lease, (p. 490). ■</p> <p>3. Witnesses — Competency—Tramsaciions With Deceased.</p> <p>One through whom a plaintiff in ejectment derives his title is incompetent to testify on the trial of the action against the defendant grantee of a person then deceased,'in regard to a personal transaction with the deceased in his life time, (p.492).</p>

County. Suit by J. D. Campbell and others against the Charleston Street Railway Company and others. Decree for plaintiffs, and defendant the Kanawha Valley Bank appeals.

<p>j. Master and Servant — Duty of Mine Operator — Safely of Employe.</p> <p>Tlie mine foreman statute of this state does not absolve the mine owner or operator from his common law duty to exercise reasonable care to provide reasonably safe machinery, tools and appliances for use in the mine and make the mine a reasonably safe place for work, except in so far as the duty is devolved upon the mine foreman, nor from liability for injury resulting to a servant in the mine from his failure to make sueh provision, or his provision of defective or unsafe appliances, or his failure of duty as to the safety of the mine as a place of work in those instances in which such duty is not east upon the mine foreman, (p. 498).</p> <p>2. Same — Injury to Servant — Defective Instrumentalities.</p> <p>An uninsulated wire carrying a heavy electric voltage, connected at one end with a trolley wire in a mine entry, extending from it through a break-through into an air course, neither of which is used as a way for travel or place of ordinary work, carried along the rib or wall of the break-through on wooden, pins near its top, less than four feet from the floor, and used to supply electric power to a pump in the ail' course, attended by a workman called a pump runner, is a dangerous appliance or instrumentality, and' renders the place in which it is a dangerous place of work, and, for injury inflicted by it upon a servant called into the break-through to assist in moving the pump, without knowledge of its condition, the mine owner is liable (p.499).</p> <p>3. Electricity — Personal Injuries — Liability.</p> <p>A person using the silent mysterious force called electricity, whose presence in deadly quantity cannot ordinarily be detected by any of the five senses without danger, in a place to which he knows others may resort for any reason, such as business, pleasure or curiosity, and in sueh manner as exposes them to danger of contact with it by accident or inadvertence, is bound to fake precaution for their safety by insulation of the instrument used in its application or some other adequate means, (p. 500).</p> <p>4. Master and Servant — Assumption of Mslc.</p> <p>Ordinarily a servant assumes the risk of injury from the negligence of his fellow servant, but not from the negligence of the fellow servant augmented by that of the master. The negligence of the master contributing to that of the fellow servant or concurring with it relieves the injured servant from the operation of the fellow servantey rule. (p. 501).</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by tbe Rock House Fork Land Company against Giles T. Gray and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Perpetuities — Wills—Gonstmetion, of Will — Metate Bequeathed'— Minerals — Power of Sale.</p> <p>Testator devised lands in severalty to certain of his children, and by a subsequent clause in his will empowered his executor to sell his "mineral right, but not for less than ten dollars per acre,” and to pay certain legacies out of the proceeds to certain others of his children to whom he had given no land'. He owned no mineral or mineral rights except the mineral under the land devised, and it does not appear what it is worth, if anything, per acre. Held:</p> <p>I That the devisees of the lands took a defeasible fee in the mineral, liable to be defeated by a sale of it by the executor at not less than ten dollars per acre.</p> <p>II That the power given the executor to sell must be exercised in a reasonable time and is, therefore, not void for remoteness.</p> <p>III That on his failure, or inability to sell .at ten dollars an acre, in a reasonable time, the mineral becomes the absolute property o.f the devisees of the land. (p. 515).</p> <p>Ü. Wills — Construction—Gift.</p> <p>A clear gift may be cut down by some other provision in a will, expressed in terms equally unambiguous, showing testator •’s intention to cut it down. (p. 515).</p> <p>S. Same — Construction—Intention'.</p> <p>Testator’s clearly expressed intention is his will, and must be carried out unless it controvenes some rule of law. (p. 516).</p>

<p>1. Wills — Bequest-—Construction—Legatee.</p> <p>A testator bequeathed money as follows:</p> <p>. “in equal proportion to the Trustees; or other proper authorities of the following Eeligious Denominations — viz, ‘Greenbrier Presbytery1. (Southern Assembly,) M. E. Church (‘South’) Hopewell Missionary Baptist Association, and to the Protestant Episcopal Church.’ Diocese of West Virginia, and to be applied by the proper authorities of said Eeligious Denominations; as in their judgment, will accomplish the greatest good; for the true advancement, of Christianity. ’ ’</p> <p>Helé, in the light of evidence of the facts and circumstances surrounding the testator at the time of his mating the will, that wjierein the provision refers to ‘the Trustees * * * of the * * * M. E. Church, South,’ the testator intended The Board of Trustees of the Methodist Episcopal Church, South, a corporation under the laws of Tennessee, (p. 521).</p> <p>2. Wills — Identity- of Legatee — Extrinsic Evidence.</p> <p>Extrinsic evidence of the facts and circumstances surrounding a testator at the time of making his will is admissible to identfy a legatee or devisee not precisely named or described' in the will. (p. 521).</p> <p>3. Charities — Indefiniteness.</p> <p>A bequest of charities to a corporation, the purpose of which as expressed in the will is within the objects and purposes of the legatee corporation, can not be said to be invalid for indefiniteness, (p. 525).</p> <p>4. Corporations — Bequest for Benefit of Eeligious Denomination— Eight to Take.</p> <p>A bequest of money by a testator in this State to a foreign corporation capable of taking, for the general benefit of a religious denomination, is not invalid under our laws and policy, (p. 525).</p>

<p>1. Appeal and Ekkok — Specific Exception — TleaSing.</p> <p>'A general denial in an answer of sneli allegations of a bill as .are not admitted suffices, in the absence of specific exceptions to the denial on account of its generality, pointing' out the particular allegations as to which admissions or denials are insisted upon. (p. 529).</p> <p>2. Mechanics ' Liens — ^Foreclosure—Issues—Evidence.</p> <p>An essential allegation in a cause of action, though denied and so put in issue, may be sustained by very slight evidence unopposed by any to the contrary, if, on examination of the whole evidence, it appears the particular question did not impress itself upon the minds of both parties as being one in actual controversy, (p. 529).</p> <p>3. Evidence — Presumption from Failure to Produce — Mechanics ’ Liens.</p> <p>In such case, the obvious ability of the party upon whom the burden of proof rests to produce additional, clearer or even decisive evidence in his favor, if the allegation is true, does not decide the issue against him. Failure to produce such evidence has that effect only in those cases in which doubt has been cast upon a prima facie case made by the party having such proof by the introduction of' rebuttal evidence or otherwise, (p. 581).</p> <p>4. Same — Presumption of Concession — Failwre to Befuie.</p> <p>Failure to attempt refutation of the slight evidence in such cases or acquiescence in its effect amounts to a coneessum. (p. 531).</p>

<p>Error to Circuit Court, Payette Couuty.</p> <p>Action by J. W. Carnefix, administrator, against the Kana-wha & Michigan Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Partnership — Agreement Between Partners — Construction.</p> <p>By a contract in writing, K and B agreed “to option coal and timber lands” and to secure when necessary renewals of options, K to furnish the “option money” to offset the services of B in securing the options and renewals, and “in case of a sale of the property under option or what may be optioned ’ ’ to divide the profits equally between them “less option money”. Each of them was thereby authorized “to sell the property under option and to do all' in his power to negotiate sueh sale”. Held': That K and B thereby became partners for the purposes stated; that, when properly construed according to its terms alone or by its terms and the conduct of the partners, the contract authorized dealings in lands optioned, as well as in the instruments under which they thus controlled the lands, (p. 541).</p> <p>2. Same — Partners—Dual Relation — Secret Dealings — Accounting.</p> <p>A partner occupies a dual relation in respect of his dealings with his 'associates and with the partnership assets. As to the former, he is a trustee; as to the latter, a cestui que trust. Out of this dual relation arises the reciprocal duty by which each partner is required to refrain from all concealment in his transactions with his eo-partners and with the common property; and if, hy fraud or concealment, he derives a benefit to the exclusion of his associates, equity will treat him as a trustee of the firm, and compel him to account therefor. <(p. 545).</p> <p>3. Same — Dealings Between Partners — Good Faith.</p> <p>Partners in their dealings'with each other are required to use the utmost good faith. If either of them seeks to acquire the interest of another, he must make to him a frank and honest disclosure of all knowledge possessed by him from which his associate may form a sound judgment as to the value of such interest, (p. 545).</p> <p>4. Same — Dealings Between Partners — Fguitable Belief.</p> <p>If, without a full disclosure of all knowledge within his exclusive possession, one partner, by the purchase of his copartner’s interest, secures an unfair and inequitable advantage, he commits a breach of faith, from the effect of which equity will grant relief at the suit of the injured partner, (p.545).</p> <p>5. Same — Termination—Secret Profit.</p> <p>A partner can not terminate the partnership relation in order to secure to himself a profit from a sale secretly effected by him of the community property, unless he -makes a full, frank and honest disclosure of all the facts and circumstances from which his co-partners may form a sound judgment as to the purpose and propriety of such dissolution, (p. 545).</p> <p>6. Same — Secret Profits — Accounting.</p> <p>If to the firm property a pretended right is fraudulently obtained by one partner, who, thereafter, with it as a nucleus, secretly secures other like property, and, by a sale of all of it, derives a profit, he will, at the suit of his copartner, thus defrauded, be required to account to the latter for his proportionate share, (p. 545).</p>

<p>Appeal from.Circuit Court, Webster County.</p> <p>'Suit by P. B. Wethered against B. C. Conrad and others. Decree for plaintiff, and certain defendants appeal.</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Suit by H. L. Wilson against II. D. Wiggin. From decree for plaintiff, defendant appeals.</p>

<p>1. Equity — Pleading—Sufficient Against Demurrer — Surplusage.</p> <p>The statement of a legal demand in a bill in equity containing a sufficient equitable cause of action is regarded as- surplusage and does not render the bill bad on demurrer, (p. 565.)</p> <p>2. Vendor and Purchaser — Bemedhp of Purchaser — Breach of Contract — Jurisdiction in. Equity*.</p> <p>A claim by a grantee against the grantor for compensation for loss, by superior title, of a portion of the land conveyed by the latter to the former, is a legal demand of which equity has not jurisdiction. Courts of equity have no jurisdiction to give compensation in damages for breaches of contract, (p.565).</p> <p>3. Equity — Cross-Bill—Dismissal.</p> <p>A cross bill or answer praying affirmative relief, filed by way of defense to a bill containing both an equitable cause of action and a legal demand and- responding to the subject matter of the legal demand only, is foreign to the real subject matter of the bill, and, on dismissal of the bill for failure of proof to sustain the equitable cause of action as set forth therein, the cross-bill or answer in the nature thereof falls with it. (p. 566).</p>

<p>Account — Parties—Objection—Demurrer.</p> <p>In a suit by an assignee for an accounting of certain coal royalties, a part of the personal estate devised to the assignor and -widow for life, subject to debts, -with remainder in equal proportion to plaintiff, a son, and1 another son, named, also as executors of the will, with power given them to manage' and control said personal estate, the remaindermen in their individual rights and as executors of said will .are necessary parties to such suit, and because of their absence the bill is fatally defective on demurrer.</p>

<p>Petition by the' United Fnel Gas Company against the Public Service Commission.</p>

<p>Error to Circuit Court, Mineral County.</p> <p>Action by Dewey Deputy, an infant, against E. G-. Kimmell. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Limitation of Actions — Construction of Statute — Period-.</p> <p>When properly construed, the clause of §18, ch. 104, Code 1906, providing that "upon a contract which was made and was to be performed in another state or country, by a person who then resided therein, no .action shall be maintained after the right of action is barred by the laws of such state or country' restricts, and does not enlarge the statutory period of limitations prescribed by other sections of the same chapter, (p.606).</p> <p>2. Same.</p> <p>Such provision, -when thus construed, means only that if the right to maintain the action is in fact barred by lex looi oantraetus it is also barred by lex fori, if the former period is less than the latter or is complete before action thereon in this state, (p. 606).</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Action by Van Linden S. Lynch and others against the Town of North View and others. From the judgment, plaintiffs appeal.</p>

<p>1. Mechanics' Liens — Items Secured — Contmuous Contract.</p> <p>An agreement to furnish all the materials necessary to the completion of .a building without defining what they shall be and the exact price of the same, under which the materials used in the building are ordered and furnished at different times, constitutes when executed a continuous and entire contract on which a mechanic's lien for the whole may be claimed within the statutory time after the last item is furnished, though more than sixty days elapsed between items of the account, (p. 620).</p> <p>2. Same — Items Secured — Time of Accrual.</p> <p>A mechanic's lien attaches and dates from the time the first work is done or the first materials are furnished under the contract giving rise to it. (p. 621).</p> <p>3. Vendor and Purchaser — Notice—Mechanics’ Lien.</p> <p>One purchasing premises on which buildings are in the process of erection, must make inquiry and take notice of any mechanic's lien right that has attached prior to his purchase, (p. 622).</p> <p>4. Mechanics' Liens — Light to Lein — Fffeet of Conveyance.</p> <p>A conveyance of the property or an incumbrance placed thereon after a mechanic's lien attaches by a beginning of performance under the contract, does not cut off or affeet the right to the mechanic’s lien for the whole, though a part of the execution of the contract is before and a part after the time of the conveyance or incumbrance, (p. 622).</p> <p>5. Same — Light to File — Conveyance.</p> <p>When a mechanic's lien arises and attaches by reason of the beginning of performance under a contract with the owner, the lien-is properly filed under Code 1906, ch. 75, see. 2, though before the time the contract is completed and the lien is filed the owner who made the contract has conveyed the property to another, (p. 628).</p>

<p>1. Vendor and Purchaser — Remedy of a Vendor — Construction of Deed.</p> <p>A deed conveying .a. tract of land by metes and bounds in consideration of a stipulated price per acre, describing it as containing by survey 900 acres, reciting the total supposed amount of purchase money and reserving a vendors lien to secure deferred payments thereof as estimated or supposed, evidences a sale of the land by the acre and gives right to the grantors to demand compensation for an excess at the stipulated' price per acre. (p. 626).</p> <p>2. Same — Vendor’s Lien — Debt Secured.</p> <p>But the vendors lien, limited in terms to the two notes for deferred payments, does not secure payment of compensation for such excess, (p. 627).</p> <p>3. Same — Vendor’s Lien — Extinguishment by Release — Compensation for Excess.</p> <p>In such ease, an instrument duly executed as a release, one part of which releases the right reserved in the deed, and the other stipulates against estoppel from collection of compensation for any excess that may afterwards be discovered, completely extinguishes the lien and saves only the right to sue for such compensation, (p. 627).</p> <p>4. Equity — Limitation of Actions- — Application of Statute — Concurrent Jurisdiction.</p> <p>The cause of action arising out of mutual mistake in the settlement as to the amount of purchase money in such case is one of concurrent jurisdiction, and is subject to the bar of the statute of limintations. (p. 629).</p> <p>5. Limitation of Actions — Commencement of Period.</p> <p>In the absence of obstruction to the right of action for such a claim by fraud in some form, the statute runs against it from th'fe date of the settlement, (p.629).</p> <p>6. Same — Commencement of Period — Mutual Mistake — Settlement.</p> <p>Acts between the grantees and strangers to the contract and to which the grantors were in no way- parties, do not constitute such fraud, even though they may have tended to conceal- the cause of aetion. (p. 631).</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by B. E. Bare, administrator, etc., against the Victoria Coal & Coke Company. Judgment for plaintiff, and defendant brings érror.</p>

<p>,1. Partition — Railroad Sight of Way — Allotment.</p> <p>A railroad right of way, acquired in condemnation proceedings to which but one of several cotenants of the land is a party, will not, in a partition sought by other co-owners, be allotted wholly to the condemnor, if the allotment operates to the serious injury or prejudice of such co-owners, (p. 643).</p> <p>g. Same.</p> <p>Whether such allotment may be made depends upon the circumstances and conditions of each particular ease. (p.643).</p> <p>3. Same — Report of Commissioners■ — Presumption:.</p> <p>Where a report of partition made by commissioners is proper on its face, every reasonable presumption is in favor of its fairness, (p. 645).</p> <p>4. Same: — Railroad Right of Way — Allotment—Evidence.</p> <p>A case in which, upon a proper application of the principles thus announced, such allotment was properly refused, (p. 648).</p>

<p>Error to Circuit Court, Nicholas County.</p> <p>Condemnation proceedings by the G-auley & Summersville Railroad Company against Ii. G-. Yencill and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Wyoming County.</p> <p>Suit by Walter T. Chandler against Nellie J. French and others. From decree for plaintiff, defendants appeal.</p>

<p>3. Sales — Implied Warranty.</p> <p>There is do implied warranty that an article sold will answer a particular purpose not contemplated by the seller, (p. 668).</p> <p>2. Same — Performance of Contract.</p> <p>A contract to furnish “nut and slack” coal at a stipulated price per ton, made and partly fulfilled at a time when the contractor was shipping dry coal, is substantially complied with by his later furnishing washed "nut and slack" from the same mine, containing more heat units per ton than unwashed coal but mixed in a different manner, (p.688).</p>

<p>1. Sales — Refusal to Aeeept — Objections—Waiver.</p> <p>When refusal to aeeept goods purchased is based solely upon a particular objection, formally and deliberately stated, all other objections are deemed waived, (p. 670).</p> <p>2. Sales — Implied Sale — Aeeeptanee of Good's.</p> <p>Though a purchaser of goods does not order the quantity delivered to him, a sale of the whole will be implied where on receiving the goods the purchaser does not within a reasonable time repel the implication by returning the goods or notifying the seller that he will not accept them because of the excess of quantity, (p. 670).</p>

<p>Executors and Administrators — Bights of General Creditor — BilT Against Representative,</p> <p>A general creditor of a deceased debtor can not, without showing-distinct grounds of equity cognizance, maintain a bill against the-personal representative to charge in his hands the personal estate-only.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by Charles E. Mylius against the Raine-Andrew Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Action brought in justice’s court by H. M. Taylor against the Campbell Cooper Company and another. From a judgment for plaintiff, the circuit court allowed an appeal! and overruled a motion to dismiss the appeal, and a directed verdict was rendered for defendants, from which plaintiff brings error.</p>

<p>Chattel Mortgages — Possession—Retention 6y. Mortgagor — Validity.</p> <p>A deed oí trust on furniture and fixtures, situated in a saloon, and also on the liquor lieense and the lease of the building in which the business is conducted, is not void per se as to such property because it also covers the stock of liquors and other consumable merchandise, employed in the business, and by the provisions of the trust the property covered thereby is left in the possession of the owner until default in payment of the debt secured, or until sold'.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Ed Friedley was convicted of theft and brings error.</p>

<p>Error to Circuit Court, Nicholas County.</p> <p>Action for slander by F. N. Alderson against L. N. Kahle. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Master and Servant — Assumption of Iiislc — Minor Servant.</p> <p>A minor servant, though fourteen years old or over and presumptively capable of recognizing and appreciating danger, is not held as matter of law to have assumed the risk of injury incident to his employment, except in very plain eases, unless his knowledge of the danger and means of avoiding it affirmatively appears or warning thereof and instruction as to provision against it are shown to have been given by the master, (p. 699).</p> <p>2. Same — Assumption of Miste — Liability of Master.</p> <p>The danger incident to unreasonably long service without sleep, at night, without a light and about a double-track railroad on which trains are passing in both directions, required of sueh a servant, is attended by a peculiar risk.of injury, due to the tendency of long service and deprivation of sleep to dull the mental faculties and weaken the powers of observation, which he is not held as matter of law to have assumed, in the absence of proof of warning thereof ■and instruction as to means of avoidance or previous service of such length without sleep or some other fact from which knowledge of the peculiar danger and assumption of the risk can be inferred, (p. 700)..</p>

<p>1. G-amin g — In dicim eni — Sufficiency.</p> <p>An indictment under §1, cli. 151, Oode, which charges that defendant, “within one year next preceding the finding of the indictment,” in a certain building described therein, “did unlawfully keep and exhibit gaming tables, commonly called slot machines, roulette and other gaming tables, * * -being tables of like kind to A. B. 0. tables, upon which tables games of chance are played, the chances thereon being unequal and in favor of the keepers and exhibitors thereof”, is sufficient on demurrer, (p. 707).</p> <p>2. Indictment and Information — Duplicity.</p> <p>Such indictment charges one offense, and not several and distinet offenses, (p. 707).</p> <p>3. Gaming — Instructions.</p> <p>An instruction correctly propounds the law, applicable to the offense charged in such indictment, which advises the jury “that if they believe from the evidence beyond a reasonable doubt that the slot machines described in the indictment are gaming tables, and that said machines were so constructed that they offered unequal chances to the player and exhibitors and that the unequal chances were in favor of the exhibitors, then said1 slot machines- are gaming tables of like kind and character to A. B. 0. tables.” (p. 711).</p> <p>4. Criminal Law — Appeal—Bill of Exceptions — Admission of Evidence.</p> <p>This court does not consider, and will treat as waived, a claim that evidence was improperly admitted' over objection and exception, unless by bill of exceptions attention is directed to the evidence complained of. A bill of exceptions making'all the evidence in the case part, of the record will not avail, though therein is noted the introduction of such evidence and the objection and exception thereto, unless the record discloses reliance on such objection in support of a motion for a new trial, (p. 711).</p> <p>5. Gaming — Keeping and Exhibiting Gaming Tables — Persons Liable.</p> <p>All persons who keep or exhibit the gaming tables named in §1, ch. 151, Code, or other-tables of like kind not specifically mentioned, or who have the possession and. custody or control of such tables, or supervise the games played1 thereon, are the keepers and exhibitors thereof or interested or concerned in keeping them, within the terms of the statute, and, on conviction, are properly punishable thereunder-. (p. 711).</p> <p>6. Criminal Law — Criminal Responsibility — Conferring Authority on Another.</p> <p>By the criminal law no man can authorize another to do what he may not lawfully do himself. If he attempts to confer such authority on another criminally responsible, and the unlawful act be done, both are equally guilty and amenadble to punishment, (p. 712).</p>

<p>1. Criminal Law — Limitation—Accrual of Liability- — Off eme by Attorney.</p> <p>Cause for a criminal prosecution against an attorney under the provisions of §11, eh. 119, Code, matures at the expiration of six months from the receipt of the money, unless, within that period', the • client demands payment thereof, in which event cause therefor matures upon demand, (p. 714).</p> <p>2. Same — Limitation—-Effect to Bar Prosecution — Offense by Attorney.</p> <p>Such prosecution is barred, after one year from the date cause therefor arose. ' (p. 714).</p> <p>3. Same — Limitations—Suspension.</p> <p>Demands made after the lapse of the six months fixed by §11, ch. 119, do not suspend the operation of the statutory bar. When it begins, it continues to run until the limitation period becomes complete. (p. 715).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by R. R. Pennywitt against Fred 0. Blue, State Tax Commissioner, and others. From decree for defendants, plaintiff appeals.</p>

<p>1. Counties — Limitation on Indebtedness — Validity.</p> <p>Chap. 51 of the Aets of 1905, limiting the indebtedness of counties, cities, school districts and municipal corporations to two and one half per centum of the assessed value of the taxable property therein, does not conflict with sec. 8 oí Art. X of the Constitution and is valid', (p. 724).</p> <p>2. Same — Limitation of Indebtedness — Constitutional Provision — Operation and1 Bffeat.</p> <p>Sec. 8 of Art. X of the Constitution does not giant to counties, cities, school districts and municipal corporations the right to incur indebtedness to the extent of five per cent, of the assessed value of the taxable property therein nor recognize such right in them as pre-existent. (p. 724).</p> <p>3. Same — Limitation of Indebtedness.</p> <p>A county court cannot issue bonds, payable or redeemable out of taxes to be raised from persons and property of a magisterial district, in excess of two and one half per cent, of the assessed value of the taxable property in such district, (p. 726).</p> <p>4. Same — Bonds' for Load Improvement — jRight to Issue — BepeaX of Statute.</p> <p>Sec. 25a of chap. 38 of the Acts of 1911, authorizing the issuance of bonds for road improvement, does not impliedly repeal the limitation imposed by chap. 51 of the Acts of 1905. (p. 727).</p>

<p>, Habeas corpus by Charles Franklin and another against M. L. Brown, Warden.</p>

<p>1. ADVERSE Possession — Color of Title — Wife’s Deeá.</p> <p>A deed "by a married woman, her husband not joining therein, and therefore void, purporting to convey her sole and separate estate in land, is nevertheless color of title, by which and adverse possession thereunder for ten years and payment of taxes, the grantee may acquire absolute title, working a disseizin of her estate in the land, (p. 733).</p> <p>2. Odrtesy — Bar of Bight — Corweyrni-ce of Properly.</p> <p>Where a married woman has been «o disseized of her separate estate in land in her life time, her husband, as tenant by the curtesy, though at the time of her conveyance and subsequently and until after her death under the disability of insanity, cannot within five years after disability removed recover from the purchaser, or his successors in title, possession of such land, for the statute of limitations having run against her in her life time, disseizing her, she would not within the meaning of section 15, chapter 65, Code 1913, serial section 3663, die seized of an estate of inheritance in such land, so as to entitle him to curtesy therein, (p. 734).</p>

<p>1. Abatement and Revival — Death—Actions Ex Delicto — Abatement.</p> <p>A cause of action ex dselicto which abated by death and did not survive, at common law, to or against the personal representative,, does not survive by virtue of §2, ch. 127, Code 1913. (p. 737).</p> <p>2. Same — Survival—Operation of Statute.</p> <p>Section 2, ch. 127, Code, prescribes only the mode of procedure for the revival of actions which, at common law or by virtue of other-statutory provisions,'survive to or against the personal representative. It does not create a new cause, or give a new right, of action which did1 not exist before, (p. 737).</p> <p>3. Same — Bight of Action — Abatement.</p> <p>Section 20, ch. 85, Code, does not authorize recovery of indirect or consequential damages resulting from the wrongful use of judicial proceedings, whereby the person injured was deprived merely of the-use and benefit of property pending a suit subsequently dismissed on appeal for want of jurisdiction, (p. 739).</p> <p>4. Same — Action for Malicious Prosecution — Survival.</p> <p>A cause of action for malicious prosecution does not, under the common law or by statute, survive against the personal representative, unless as a result thereof property is acquired by the wrongdoer which enures to his -benefit or enhances the value of the estate in the hands of his personal representative, (p. 739).</p>

<p>Error to Circuit Court, Hancock County.</p> <p>Action by O. S. Marshall and another against William O’Brien and another. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Escape — What Constitutes.</p> <p>A prisoner who escapes from jail by force and violence, pending the determination of a writ of error to a judgment of conviction for a felony resulting in a reversal thereof and a discharge of the prisoner, does not thereby violate Sec. 11, Ch. 147, serial section 5259, Code 1913. (p.745).</p> <p>2. Same — ‘ ‘ Conviction. ’ ’</p> <p>The term conviction, as used in that section, implies final judgment of court, (p.745).</p>

<p>Original application for writ of mandamus by the State, on the relation of D. M. James, against J! C. James and others.</p>

<p>Appeal and Error — Affirmance—Conflicting Evidence.</p> <p>A ease involving no new principle of law and depending on conflicting oral testimony, wherefore the judgment is affirmed.</p>

<p>1. Constitutional Law — Due Process — Ads of Governor — Review Toy Court.</p> <p>The office of governor is political and the discretion vested in the chief executive by the Constitution and laws of the State respecting his .official duties is not subject to control or review by the courts. His proclamations, warrants and orders made in the discharge of his official duties are as much due process of law as the judgment of a court, (p.764).</p> <p>2. States — Acts of Governor — Liability.</p> <p>The governor can not be held to answer in the courts in an action for damages resulting from the carrying out of his lawful orders or warrants issued in good faith in discharge of his official duties, (p. 765).</p> <p>3. Wak — Governor—Power—Martial Law.</p> <p>By virtue of the authority vested in the governor by the Constitution and laws of the State,' he has authority as eommandér-in-ehief of the military forces, pending the existence of martial law covering any portion of the State’s territory, to cause to be arrested and imprisoned, until peace is restored, any person whom he has good reason to believe is aiding or encouraging disorder and rioting; and he may also temporarily suppress any newspaper published, in the State, having a circulation in the martial zone, and containing articles which he has reason to believe will encourage a continuation of the disorder therein, (p. 766).</p> <p>4. Militia — Acts of Governor — Enforcement by Subordinate Officers— Civil Liability.</p> <p>A subordinate military officer is not rendered personally liable for injury resulting to private property from executing a lawful order issued by the governor as commander-in-chief of the military forces (p.773).</p>

<p>Appeal from Circuit Court, Doddridge 'County.</p> <p>Bill by the Carnegie Natural Gas Company against the Carter Oil Company and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Lewis County.</p> <p>Bill by George Gillmor against Lloyd’ Rinehart and others. Decree for plaintiff, and defendants Joseph A. Newlon and others appeal.</p>

<p>Forgery- — Evidence—Variance.</p> <p>While, in an indictment for forgery; it is unnecessary to set forth, in haee verba, the forged instrument, yet, if this is done, and there is a material variance between the copy so set out and secondary evidence offered- to prove the contents of the paper, admitted on proof of its loss, the trial court should sustain a motion to exclude the evidence from the consideration of the jury.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by J. W. Peters against John W. Riley. Judgment for plaintiff and defendant brings error.</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by Clyde W. Britton, an infant, etc., against the South Penn Oil Company. Judgment for plaintiff, and defendant brings error.</p>