Volume 74 — West Virginia Reports

Action by the Union Trust & Deposit Company, executor, etc., against John Paulhamus and others. Judgment for defendants, and plaintiff brings error.

<p>1. Pleading — Declarations—Sufficiency of Allegations.</p> <p>Id an action on the ease for damages for killing plaintiff’s horse by a railway company, the declaration should allege clearly and distinctly the cause of action; and a count therein reciting the supposed cause of action under a whereas, a cum quod, is fatally defective on demurrer, (p. 8).</p> <p>2. Railroads — Injuries to Animals.</p> <p>A case in which the alleged negligent killing or causing the death of plaintiff’s horse is not sustained by the proof, and defendant’s demurrer thereto was erroneously overruled (p. 9).</p>

Action of debt on an injunction bond, by the State against Abraham Friedman and others. Judgment for plaintiff, and defendants bring error.

<p>1.- Bailroads — Liability—Defective Cars — Negligence of Coal Company.</p> <p>Where a corporation, engaged in mining coal for shipment, accepts a car for nse at its mines, knowing it to be inadequately equipped with brakes, and, in an effort to' adjust the ear to the tipple to receive its complement of coal, negligently permits it to escape, thereby inflicting injury on the property of another not its employee or an employee of the carrier furnishing the ear, the carrier will not be held liable therefor, though the injury may not have occurred had the car so furnished been equipped with brakes adequate to control its movements, (p. 18).</p> <p>2. 'Negligence — Intervening Cause — Liability.</p> <p>While the negligent act of one person may, as a natural consequence, cause injury to another; yet if, before the injury results, the negligent act of a third person intervenes and produces the injury, the latter alone is responsible therefor, though but for the first negligent act the injury could not have occurred, (p. 21).</p> <p>3. Same — Cause of Injury — “Proximate Cause.’’</p> <p>Where, by the intervening negligent act of a responsible agency, the causal connection between the first negligent act and the injury is broken, the last act, in legal contemplation, is regarded as the sole cause of the injury. The proximate cause thereof is the last negligent aet contributing thereto and without which the injury would not have resulted, (p. 19).</p>

<p>1. Waters and Water Courses — Water Worlcs — Liability of City for Negligence.</p> <p>A municipality maintaining a waterworks system for supplying its inhabitants with water for domestic use, is not thereby performing -a governmental function, and- is liable for acts of negligence respecting sueli business just as a private individual, (p. 27).</p> <p>2. Same — Waterworks'—Liability of City, for Injuries.</p> <p>A city is liable for injury caused by tbe breaking of its tank or reservoir in which it has collected water in large quantity to supply its waterworks system, (p. 27).</p> <p>3. Same — Torts—City Waterworks — Presumption of Negligence.</p> <p>In the absence of proof that the breaking of the tank was caused by some superior force, such as an unusual and' violent disturbance of the elements or an explosion clandestinely caused, negligence will be inferred from the breaking, (p. 31).</p> <p>4. Same — Torls—City Waterworks — Liability for Injuries.</p> <p>Restriction upon a city by. its charter in the rate of water rent which it may lawfully charge consumers, does not affect the question of its liability, (p. 30).</p> <p>. 5. Appeal and Error — Harmless. Error — Exclusion of Evidence.</p> <p>It is not reversible error to exclude expert testimony presenting a possible, but highly improbable, theory, not based on any particular facts in support thereof, especially if such testimony conflicts with other direct testimony negativing such theory, (p. 32).</p> <p>6. Death — Damages Recoverable — Menial Anguish.</p> <p>In an action to recover for wrongful death,'the jury are not limited to mere pecuniary damages, but may allow . for mental anguish and suffering of near relatives of deceased', who are his dis-tributees. (p.33).</p> <p>7. Same — Damages Recoverable — Prospective Losses.</p> <p>The damages in such case are not confined to such as may have accrued at the death, but may include such prospective losses to the distributees as the evidence show's will actually and necessarily result . from the wrongful .death as the proximate cause, (p. 35).</p>

<p>Negligence oe City.</p> <p>Points 1, 2, 3, 4, and 5 of the syllabus in Wigal, Adm’x. v. City of Parlcersburg, decided at the present term, re-affirmed and applied.</p>

<p>Error to Circuit Court, "Wood County.</p> <p>Action by Emma J. Jackson against the City of Parkers-burg. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by John A. Gawthrop against the Fairmont Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Frauds, Statute op — Contract to he Performed in One Year.</p> <p>A verbal contract the terms of which do not expressly provide for performance beyond a year or by fair and reasonable construction contain anything inconsistent with complete performance within that time, is not within the statute of frauds.</p>

Application by Benjamin Williams for writ of prohibition against J. H. Weirlich, Justice of the Peace, and others. Judgment for defendants, and plaintiff brings error.

<p>1. Municipal Corporations — Sidewalks—Public Character — Recognition.</p> <p>For the purposes of an action against a city for an injury alleged to have resulted from a defect in a sidewalk constructed along the side of a building and bordering on a public street, but on land belonging to the owner of the building, the sidewalk is sufficiently recognized as a public walk by the grant, by the city council, of a permit to the owners of the building to construct, maintain and operate in such sidewalk an elevator in connection with their nse of the building, (p. 50).</p> <p>2. Same — Sidewalks—Elevator.</p> <p>An elevator for lowering goods'from the sidewalk to a basement and lifting them from the basement to the sidewalk, so constructed as to leave no defect in the walk when lowered and not in operation, not dangerous to persons using the sidewalk as travelers when in operation and not left in such condition as to be dangerous to them when not in use, is not a public nuisance, an obstruction of the sid'e-walk nor a defect therein, (p. 50).</p> <p>3.- Same — Elevator in Sideioalk — Personal Injuries — Contributory Negligence.</p> <p>A city is not liable for the death, by the operation of such an elevator, of a person w'ho, while traveling on the sidewalk and seeing it in use and raised, projected a portion of his body under the upper part of it and was killed by its descent, (p. 50).</p> <p>i. Same — Sidewalks—Personal Injuries■ — Liability.</p> <p>The'statute imposing absolute duty upon municipal corporations to keep their streets and sidewalks reasonably safe for use by the general publie does not make them liable for injuries negligently inflicted, by persons lawfully using such public ways, upon one another, (p. 53).</p> <p>(Lynch. Judge, absent).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by Laura D. Cassady, guardian, etc., and others, against Robert B. Cassady and others. From the decree, plaintiffs appeal.</p>

<p>1. Husband and Wife — Actions—Parties—Oil and Gas Lease.</p> <p>■In a suit to prohibit the lessee in an oil and gas lease in the execution of which the wife joined the husband and which provides for delivery of the royalty into a pipe line, and payment of the commutation money into a bank, to their joint credit, from drilling on the land, upon the theory of expiration of the lease, to be established by a reformation thereof by way of correction of an alleged fraudulent alteration of its terms, the wife is a necessary party, (p. 58).</p> <p>2. Appeal and Error — Cure of Error — Defect of Parties.</p> <p>Her support of her husband’s bill for that purpose by her affidavit and testimony does not cure or avoid the error in overruling the demurrer thereto for failure to make her a party, nor render it harmless, (p. 58).</p> <p>8. Words and Phrases — “Estoppel”—“Res Ad'judicasta”,</p> <p>Res adjudicóla and estoppel, though kindred in nature, aTe not identical, the former being of higher dignity than the latter, (p. 58).</p> <p>■ 4. Equity — Parties—Bringing in New Parties.</p> <p>A defendant in an equity suit in the subject matter- of which two or inore persons are interested, is entitled to have them all brought in, to the end that, if the prevails, all may be concluded by the decree, (p. 59).</p> <p>(Lynch, Judge, absent.)</p>

Suit by the South Side Bank of Wheeling, a corporation, against the Center Wheeling Savings Bank, a corporation, and others. From a decree for defendant, plaintiff appeals.

<p>1. Equity — Answer—Effect of Failure to Reply.</p> <p>In the absence of a replication, the answer of a defendant in an equity suit is taken as true for the purposes of the case, if the defendant has not taken depositions as if one had been filed: and thus submitted the case upon its merits, (p. 64).</p> <p>2. Stipulations — Admissions and Agreements in Open Court.</p> <p>Admissions and agreements made in open court by the parties to the cause and acted upon by the court are binding and a decree founded therein will not be reversed, (p. 65).</p> <p>3. Divoe.ce — Grounds—Desertion.</p> <p>A husband's assent to his wife's separation from him exonerates her from the charge of desertion and bars his suit for divorce, founded upon such charge, (p. 65).</p>

<p>1. Receivers — Grounds for Receivership.</p> <p>The appointment of a receiver, upon a bill shoving no clanger of any loss or misappropriation of property to which the plaintiff is entitled or upon which he has a lien or hold of some sort, is improper. (p. 66).</p> <p>2. Assignment for Benefit of Creditors — Removal of Trustees — - Grwmrfs — Appointment of Receiver.</p> <p>Relationship of the trustees in a deed of assignment for the benefit of creditors to the grantors therein, their failure to convene the creditors and their compromise of claims against the assets with funds not alleged to have been derived from the property in their hands do not warrant their removal by the appointment of a receiver, (p. 66).</p> <p>3. Partnership — Actions—Grounds for Receivership.</p> <p>The assignors being a copartnership consisting of two members, failure of one member of the firm to join in the deed of assignment is not ground for a receivership, (p. 66).</p> <p>4. Same.</p> <p>Allegation of the personal liability of the non-joining member and of his denial of his membership in the firm is not ground for a receivership, (p. 67).</p>

<p>1. Bills and Notes — Failure of Consideration — Solder in Due Course.</p> <p>In an action on a negotiable instrument proof of failure or partial failure of consideration is not under our negotiable instrument law admissible in evidence as against the holder thereof in due course, (p. 69).</p> <p>2. Trial — Offer of Proof.</p> <p>The refusal of the court on the trial of sueh action to accept a mere general offer by defendant to show fraud) without at the same time offering to show the facts constituting the fraud, will not constitute reversible error, (p. 71).</p> <p>(Lynch, Judge, absent.)</p>

<p>1. Intoxicating Liquors — Indictment—Proof.</p> <p>Proof of sales of “Bevo” and “Temperance Malt”, without a state license therefor, if proven to be drinks of like nature to spirituous liquors, wines, porter, ale and beer, and to be intoxicating in the common acceptation of that word', may be given in evidence under an indictment charging defendant in the language of the statute, with the unlawful sale, offer and exposure for sale of spirituous liquors, wines, porter, ale and beer, and drinks of like nature; and a count charging such drinks to be intoxicating is unnecessary. (p. 73).</p> <p>2. Same — Prosecution—Instructions—“Intoxicating Drinlcs.’’</p> <p>An. instruction to .the jury “that in order to make any fluid or liquid an intoxicating drink, it must be capable of producing intoxication, in the usual sense and' common acceptation of the term intoxication; that is it must have in it a sufficient amount of aleohol to produce intoxication when consumed in sufficient quantities”, properly propounds the law in such cases, and it was not error to reject other instructions propounding a different rule of liability, (p. 74).</p> <p>3. Criminal Law — Appeal—Verdict—Conflicting Evidence.</p> <p>This court will not on review of a judgment of conviction in such cases, disturb a verdict found by the jury on conflicting evidence as to whether “Bevo” or “Temperance Malt” is capable of producing intoxication as defined in said instruction, (p. 75).</p> <p>(LYNCH, Judge, absent.)</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by F. P. Pribble against S. Stanley. Judgment for plaintiff, and defendant brings error.</p>

<p>Review — Bill of Review — Demurrer—Dismissal.</p> <p>A bill of review to review prior decrees for alleged errors of law which do not appear on the face of the record, and also for after discovered evidence which is not shown by the bill, and no re sons given why such supposed' evidence was not discovered- befoie final decree entered and produced before trial, is properly dismissed on demurrer.</p>

<p>1. Pleading — Bill—Exhibits.</p> <p>Where an exhibit is filed with a bill vouching the truth of the allegations respecting the same, the court, on demurrer, will look to the exhibits for the facts, and if in conflict with the bill, will treat it as alleging the facts, for the purposes of the bill. (p. 87).</p> <p>2. Mines and Minerals — Oil m3 Gas Lease — Accounting-for Loyalties.</p> <p>In a suit for an accounting against lessor and lessee in an oil and ' gas lease, by one claiming a portion of the oil and gas under an alleged deed or contract from the lessor, and which contract besides . a covenant to convey contains also a provision for the payment to the vendor of $200.00, for each and every well drilled and completed as stipulated', within ninety days from the date of such completion, and which by the terms of the contract is to be of the essence thereof, default in such payment to render the contract null and void, excusing performance thereof, if the bill seeking such accounting of the oil or gas produced fails to allege payment of the sum stipulated and performance by him of all. other conditions precedent, it is fatally defective, and bad on demurrer, and if ' further amendment is declined the bill is properly dismissed, (p. 87).</p>

<p>Counties — Liabilities—Personal Injuries to Employes.</p> <p>A county court is not liable in damages for personal injuries sustained by one, not a traveller, employed by it in building a wall along or upon a public road, from the caving in and falling upon him of a part of such road adjacent to the wall, due to its negligence or the negligence of other persons employed to do other wort upon or under the road in no way connected with the work of building such wall. Distinguishing Shipley v. County Cou/rt, 72 W. Va. 656, 78 S. E. 792.</p>

<p>Appeal from Circuit Court, Pleasants County.</p> <p>Action by A. J. Grant against John H. Swank, Cecil P. Reed, and another. From judgment for plaintiff defendant Reed appeals.</p>

<p>1. Pleading — Time to Plead.</p> <p>Where a declaration in assumpsit contains the common counts, and a special count on a written contract, as a basis for recovery of an agreed rental of machinery and unliquidated' damages thereto occasioned by negligence imputed to defendants, the latter may, upon affidavit when neeessary, plead to the action .at any time before final judgment upon a duly executed writ of enquiry, (p. 100).</p> <p>2. Same — Time to Plead — Office Judgment — When Pinal.</p> <p>Until the execution of such writ where requisite, an office judgment does not become final, precluding the right to plead to the action, (p. 102).</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Suit by O. G-. Augir & Co. against Rebecca R. Warder and others, to enforce a mechanic’s lien. From a decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Mary B. Coffindaffer and others against the Hope Natural Gas Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Hardy County.</p> <p>Suit by the First National Bank of Broadway, Virginia, against E. A. Cootes and another, partners as Cootes & Son. From Decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Caretta Railway Company against Thomas Fisher and others. The claim of defendant W. F. Harman to- a one-half interest in a fund arising from condemnation of land was sustained, and plaintiff brings error.</p>

<p>1. Executors and Admiwistratobs — Actions—Declaration—Allegation as to Appointment.</p> <p>A declaration in an action by an administrator for the wrongful death of his decedent, which fails to aver the due appointment and qualification of the plaintiff as administrator, - is insufficient on demurrer, (p. 122).</p> <p>2. New Trial — Grounds.</p> <p>The overruling of a demurrer to an insufficient declaration is error prejudicial to the defendant which warrants the sustaining of a motion to set aside a verdict returned for the plaintiff, (p. 122).</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Habeas corpus by Rhoda Anderson against Boyd Anderson and others. Judgment for plaintiff, and defendant named brings error.</p>

<p>1. Executors and Administrators — Distribution of Estate — Security by Legatee.</p> <p>An executor of a will directing him, on the happening of certain contingencies, to pay certain portions of the personal estate to persons to whom they are given, subject to provisions for gifts over to other persons, in ease they Should die, leaving no issue, may pay over such portions, on the happening of such contingencies without requiring the legatees to give security safely to keep the property and have it forthcoming in the event of the defeat of their estates in the manner prescribed by the will. (p. 128).</p> <p>2. Same- — Distribution of Estate — Security—Norn-resident Legatee.</p> <p>The non-residence of such a legatee, in the absence of other facts indicative of danger of loss of the property, as the result of such payment, constitutes no ground for the requirement of such security, (p. 129).</p> <p>3. Wills — Action to Construe — Decree.</p> <p>The insertion in a decree construing such a will at the instance of the executor, of a reservation to interested parties of right to require such security, in- the event of future cause therefor, is not erroneous, (p. 129).</p>

<p>Appeal from Circuit Court, Brooke County.</p> <p>Bill by John AY. Kelly and others against the AYellsburg & Buffalo A^alley Company, AYellsburg Coal Company and AYells-burg and State Line Railroad Company, and by Adamson and Murdock against the same defendants. Decrees for plaintiffs, and defendants appeal.</p>

<p>Municipal Corporations.</p> <p>The judgment of a circuit court, on an appeal from the judgment of the mayor of a municipal corporation, acting ex-officio as justice, pursuant to section 39, chapter 47, serial section 2425, Code 1913, by a defendant accused of a violation of a municipal ordinance, and showing on its face, that it was pronounced, after the defend'ant was thrice called at the bar, and not appearing to prosecute his appeal, and without proof, and adjudging that the municipality recover of defendant and the surety on his appeal bond the fine assessed by such mayor against him 'and costs,' is void. Applying the rules enunciated in Ellcins v. Michael. 65 W. Va. 503, Pielcenpaugh v. Keenan. 63 W. Va. 304, and cases cited.</p>

<p>Error to Circuit Court, Clay County.</p> <p>Burton Hamrick was convicted of manslaughter, and brings error.</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Action by the Baltimore & Ohio Railroad Company against John W. Brown’s Heirs and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Taxation — Tax Title — Validity’—Assessment.</p> <p>Mere failure to note, in an assessment of town lots, the estate of the owner, does not invalidate a duly recorded: tax title acquired thereunder. When not thus noted, an estate in fee will be presumed, (p. 153).</p> <p>2. Same — Tax Deed — Validity’—Misnomer.</p> <p>A mere mistake in the owner’s mame, in delinquency proceedings, does not invalidate a duly recorded tax deed. To have that effect, the misnomer must be a substantial departure from the true name, or such as will mislead the owner, and thereby prevent the exercise of his statutory right of redemption, (p. 153).</p> <p>3. Same — Tax Deed — Validity—Description.</p> <p>Errors and mistakes in location or description of real estate, in delinquency proceedings, do not invalidate a duly recorded tax deed. These are within the curative provisions of §25, eh. 31, Code 1913. (p.153).</p> <p>4. Same — Delinquency. Proceedings — Validity.</p> <p>In assessment and delinquency proceedings, the fact of non-residence is immaterial, (p. 155).</p> <p>5. Evidence — Preswmption—Official Acts.</p> <p>If not otherwise appearing, the presumption is that before selling lots in solido the sheriff offered for sale an interest therein, as required by statute, (p. 155).</p>

<p>Error to Circuit Court, Lewis County.</p> <p>Action by Richard H. Hall against the Philadelphia Company of West Virginia. Judgment for plaintiff, and defendant brings error.</p>

Action by A. L. White and others, syndicate managers, etc., against B. J. MoCullagh. Judgment for defendant, and plaintiffs bring error.

<p>Appeal from Circuit Court, Marshall County.</p> <p>Partition by Robert L. Orum and others against Margarite Rose and others. From a decree for defendants, plaintiffs appeal.</p>

Suit by H. 0. Batten, administrator of Thomas Batten, deceased, against Oliver Lowther, to enforce lien of a money decree, and, defendant dying, the suit was revived against J. F. Lowther, administrator, and others. From decree for plaintiff, defendants appeal.

<p>1. Assumpsit, Action op — Declaration—Sufficiency.</p> <p>A declaration in assumpsit which avers a promise, a consideration therefor, and a breach thereof, entitling the plaintiff to damages, is sufficient on demurrer, though it contains matters of surplusage. (p. 173).</p> <p>2. Same — Damages.</p> <p>An action of assumpsit lies only where damages are sought for the breach of a contract express or implied, and therefore in principle calls for damages ex contractu, not ex delicto, (p. 174).</p> <p>3. Same — Damages—Wantonness.</p> <p>Ordinarily in actions of assumpsit the plaintiff is limited in the ascertainment of damages to those arising directly from the breach of the contract, the willfulness or wantonness of the breach and other circumstances incidentally connected therewith having nothing to do with the case. (p. 174).</p> <p>4. Gas — Breach of Contract — Damages.</p> <p>On the trial of an action of assumpsit calling for damages by reason of the defendant’s breach of a contract to furnish the plaintiff natural gas for light and. heat in his dwelling, the plaintiff by evidence should afford a basis for ascertainment of reasonable compensation for the expense, loss of' time, and other deprivations to which he was put by the breach, (p. 175).</p> <p>5. New Trial — Excessive Damages — Semittitwr.</p> <p>When nnwaii'anted and excessive damages are found by the jury, it is error for the court to suggest and allow a remittitur as to part of the damages, when no data in the evidence afford a basis for the same, and thereupon to deny a new trial, thus substituting entirely its own discretion for the finding of a jury in the case. (p. 176).</p> <p>(Lynch, Judge, absent.)</p>

<p>Error to Circuit Court, Brooke County.</p> <p>Action by Lucy M. George against the Tri-State Gas Company. Judgement for defendant on directed verdict, and plaintiff brings error.</p>

Injunction by Ií. W. Spedden and others against the Board of Education of the Independent School District of Fairmont and others. From an order overruling motion to dissolve injunction, defendants appeal.

<p>Petition of A. A. "Wingrove and others for a writ of man-damns against the Public Service Commission and others.</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Suit by John G. Lantz against Emmet D. Tumlin and others. Decree for plaintiff, and defendant named brings error.</p>

<p>Trial — Directing Verdial.</p> <p>Where on the trial of a suit in ejectment the evidence of plaintiff is not, on motion of defendant to strike it out, such that a verdict in his favor would be allowed' to stand, the trial court may. properly sustain such motion and direct a verdict for defendant.</p>

<p>1. Attorney and Client — Contraéis—Validity—Specific Performance.</p> <p>Where an attorney, employed' in litigation involving real estate, procures from his client, for himself, upon a grossly inadequate consideration, a contract for the sale thereof, equity will not, at the suit of the attorney, decree specific performance, (p. 208).</p> <p>2. Same — Contracts—Invalidity.</p> <p>At the election of the client, if exercised with reasonable promptness, equity will, in the absence of conclusive evidence to the contrary, treat such contract as presumptively invalid and voidable. (P- 208).</p> <p>3. Same — Contract—Validity.</p> <p>A ease in which these principles are applied, and relief denied, (p. 208).</p>

<p>' 1. Executors and Administrators — Administrator Cum Testamento Annexo — Appointment.</p> <p>Section 2, eh. 85, Code 1913, contemplates a grant of administration cum testamento annexo. only "where testator fails to name an executor, or the person so named fails or refuses to accept the trust or to execute bond when properly required. (p..210).</p> <p>2. Same — Qualification■ of Executrix — Bond.</p> <p>A grant of administration cum testamento annexo jointly with an executrix, both uniting in a bond, while unauthorized as to the former, operates as a valid qualification of the latter, (p. 210).</p> <p>3. Same — Contraéis—Action for Breach.</p> <p>On contracts made with deceased, whether broken before or after death, the executrix or administratrix must sue in a representative, and not in -a persona], character, (p. 211).</p> <p>4. Same — Actions—Representative Capacity.</p> <p>Otherwise, she may sue in either character; but not as devisee, unless she alleges and proves the nonexistence of outstanding obligations against the estate of the testator or intestate, (p. 211).</p> <p>(Bobinson, Judge, absent.)</p>

<p>Alteratiou op Instruments — Oil and Gas Lease — Sufficiency of Evidence.</p> <p>A ease involving the application of well settled principles, in which the evidence is held to he sufficient to prove a fraudulent alteration in the material terms of an oil and gas lease.</p> <p>(Lynch, Judge, absent.)</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Action by the State against Irvin B. Keller and others. Judgment for plaintiff and defendants bring error.</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Action by Irvin B. Keller against the Pugh & Beaver’s Grocery Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Assumpsit, Action op — Recovery of Attorney’s Fees — Common Counts.</p> <p>Fees for services rendered by an attorney-at-law in a suit or legal proceeding may be recovered upon the common counts in an action of assumpsit against Ms client, (p.225).</p> <p>2. Pleading — Bill of Farticulars — Sufficiency.</p> <p>A bill of particulars filed with the declaration in such action, giving date of the services, the suit or proceeding in which they were rendered and the sum charged for the entire services is sufficient, (p.224).</p> <p>3. Tendee — Effect—Aánnssions.</p> <p>A debtor who appears to the action and tenders a certain sum in satisfaction of the creditor's claim thereby admits every fact which plaintiff would have to prove to entitle him to a judgment for the amount tendered, (p.226).</p>

<p>Error to Circuit Court, Wood County.</p> <p>'Action by the Eagle Glass & Manufacturing Company against the 'Second Hand Pipe & Supply Company. Judgment for plaintiff, and defendant brings error.</p>

<p>]. Criminal Law- — Appeal—Admission of Improper Evidence.</p> <p>The reception of inadmissible testimony in a trial in which the properly admitted evidence is circumstantial and inconclusive and affords ground for a finding for either plaintiff or defendant, agreeably to the belief of the jury, is presumed to have been prejudicial and necessitates reversal, (p. 23S).</p> <p>H Principal and Agent — Evidence—Admission.</p> <p>Admissions and declarations of a person claiming to be an agent of another are not admissible as evidence to prove such agency, (p. 235).</p> <p>ft. Intoxicating Liquors — Illegal Sale — Penalty.</p> <p>The penalty incurred by a licensed wholesale dealer in intoxicating liquors, such as a licensed brewer, in the making of an unlawful sale, is prescribed t>7 see- 3 of chap. 32 of the Code. (p. 235).</p> <p>(Lynch, Judge, dissenting.)</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Suit in partition by Peter E. Titehenell and others against Joel Titehenell. From a decree for plaintiffs, defendant appeals.</p>

<p>1. Insurance- — Live Stock Policy — Application.</p> <p>Under the statutes of this state, the application for a live stock policy of insurance, to be a. part of the policy, must be incorporated in it or attached to it. (p. 245).</p> <p>2. Same — Application—Evidence—Admissibility.</p> <p>Though an application for a policy of insurance is not a part of the policy because of failure to 'attach the same to it, a false statement therein is admissible under the general issue as evidence of fraud in the procurement of the policy, (p. 245).</p> <p>3. Same — Pleadings—Warranties.</p> <p>So-called pleas and replications relating to warranties or supposed warranties in a policy of insurance are not pleadings in the technical sense of the term. They are mere statements in the nature of bills of particulars and not subjects of demurrer, (p. 245).</p> <p>4. Same — Proof of Loss — “Paid”—Question for Jury.</p> <p>It is for the jury to say whether the word "paid" in an affidavit, read in the light of proper extraneous evidence, was intended to express satisfaction in money or in a broader and' more general sense, as by exchanged property and money, (p. 246).</p>

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

<p>Error to Circuit Court, Randolph County.</p> <p>The Western Maryland Railway Company was convicted of obstructing a public road, and brings error.</p>

Mandamus by the State, on the relation of the White Oah Fuel Company against T. J. Davis, Sheriff, etc. Judgment for relator, and defendant brings error.

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by John T. McGraw, Jr., an infant, etc., against M. M. Rohrbough and others. From decree for plaintiff, defendants appeal.</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by the Baltimore & Ohio Railroad Company against the Luella Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by H. M. Darby and others against the Davis Coal & Coke Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Margaret Auvil against Leander Shaffer and others. Decree for defendants, and complainant appeals.</p>

<p>1. Sales — Purchase Money Paid' — Recovery—Instructions—Evidence.</p> <p>Though the parties to negotiations for a verbal contract of sale have performed unequivocal aets by way of execution of the contemplated contract, upon the assumption of its existence, it is competent for a jury to find they never actually made such contract or arrived at a full and complete agreement, (p. 309).</p> <p>2. Appeal and Error — Ground for Reversal — Evidence and Instructions.</p> <p>On a trial in which the evidence affords a basis for a finding for either of the parties, according to the belief of the jury as to what the evidence proves, the refusal of the court to admit proper evidence •and the giving oi an erroneous instruction are presumed to have been prejudicial and necessitate reversal and the award of a new trial, (p. 308).</p> <p>3. Same — Presentation for Reviere — Refusal of Instructions. •</p> <p>A new trial will not be granted in. such a ease on account of the refusal of a proper instruction, if other instructions, given at the instance of the complaining party, have been omitted from the transcript by his direction, since presumptively the rulings of the court upon the requests for instructions were proper and the burden is upon the complainant to show the contrary, (p. 309),</p>

<p>1. Fraudulent Conveyances — Bill of Complaint — Requisites.</p> <p>In a bill to charge property in the hands of a wife with debt» of her husband, upon the theory of a fraudulent conveyance thereof to her, it is necessary to allege notice to the wife of the husband’s fraudulent intent, (p. 312).</p> <p>2. Same — Bill—Requisites.</p> <p>A bill to set aside a voluntary conveyance or transfer, on no other ground! tjiari lack of consideration, deemed valuable in law, must show the debt in respect of which relief is sought was contracted before such conveyance or transfer was made. (p. 313).</p> <p>3. Appeal and Error — Equity—Disposition of Cause.</p> <p>If, in a suit in which the evidence warrants a decree for the plaintiff, a demurrer to the hill is improperly overruled, the cause heard as upon its merits and^he bill dismissed, the decree will be reversed and the cause remanded with leave to amend' the bill, (p, 313).</p> <p>4. Fraudulent Conveyances- — Burden of Proof.</p> <p>When a wife purchases land or other property, the burden is on her to prove distinctly, that she paid for it with funds not furnished by her husband. Evidence that she purchased amounts to nothing, unless it is accompanied with, clear and full proof that she paid for it with funds furnished by some one other than her husband, (p. 314).</p> <p>5. Evidence — Failure to Prochiee Documents — Badge of Fraud'.</p> <p>Failure of one charged as a volunteer or fraudulent grantee, to produce and file, as evidence, documents and memoranda which, it is claimed, were used in effecting the alleged purchase, is a badge of fraud in the transaction,- if they are within the power of the grantee or transferee, (p. 315).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by Louisa D. Updegraff against the Blue Creek Coal & Land Company and others. From decree for plaintiff, the defendant named appeals.</p>

Action by Sarah E. Stewart and others against C. S. Parr and others. Judgment for plaintiffs, and defendants bring tiffs in error.

<p>1. Dedication — Streets and Alleys.</p> <p>Where an owner causes land to be surveyed and platted into blocks and lots, with avenues, streets and alleys, and sells and conveys lots by numbers and street location as designated on the map thereof duly recorded, he thereby dedicates such avenues, streets and alleys to public use. (p.337).</p> <p>2. Estoppel by Deed — Matter Precluded — Dedication.</p> <p>A purchaser of a lot designated in his deed by number, street boundaries and distances, according to such map, is estopped to deny dedication of streets and avenues adjacent thereto, (p. 338),</p> <p>3. Municipal Corporations — Encroachmsnt on Streets — Injunction— Existence of Other Demedies.</p> <p>While a city may by charter declare and abate as nuisances encroachments on its public ways, equity will not, for that reason alone, deny relief by injunction, (p.336).</p> <p>4. Adverse Possession- — Public Property — Streets.</p> <p>However long continued, encroachments on a public street will not confer title, by adverse possession, to any part of the thoroughfare, (p. 339).</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by the City of Elkins against Otto Offhaus. Judgment for plaintiff, and defendant appeals.</p>

<p>Nuisance — Injunction—Acquiescence.</p> <p>Equity will not enjoin the operation of an ice plant on account of the noise produced by it, .at the suit of a party who consented to its erection within close proximity to his dwelling house, and who permitted it to be completed and expensive machinery installed without objection.</p>

<p>1. Insurance — Action on Fire Insurance Policy — Burden of Proof — • Compliance With Conditions.</p> <p>Tn an action upon a fire insurance policy, containing conditions and -warranties and an agreement not to sue until full compliance therewith, tlie burden is upon the insured to prove compliance or a legal excuse for non-compliance, with all material conditions and warranties relied on in defendant's written specification of defenses, (p. 347).</p> <p>2. Same — Policy—Arbitration Clause — Statute. -</p> <p>In view of the valued policy act a promissory warranty to arbitrate the loss is not material when the loss is total, (p. 348)</p> <p>3. Same — Concurrent Pnsuram.ee — Total Loss.</p> <p>If the -loss is total the insurer’s liability is not affected by the existence of concurrent insurance, within the limit permitted by the policy, (p. 348-).</p> <p>4. Same — Concurrent Insitrance — Lights of Insured.</p> <p>Where the loss is total, or where it is only partial but equal to, or greater than, the amount of all the insurance permitted and actually carried on the property, the insured is entitled to full indemnity if not at fault, (p.348).</p> <p>5. Same — “Total Loss” — What Constitutes.</p> <p>If the walls of a brick building, although standing, have been injured and caused to lean so much out of plumb, as a direct result of the fire which burned out a large portion of the floors and wood work within, that a prudent man would not use any portion, of them as a basis for restoring the building, the loss is total, (p. 349).</p> <p>6. Same — Construction—Additional Insurance.</p> <p>The following clause attached to a fire insurance policy is implied authority to carry additional insurance, viz.: ‘ ‘ Total insurance permitted is hereby limited to three-fourths of the cash value of the property hereby covered and to be concurrent herewith.” (p.349).</p> <p>7. Same — Policy—Overestimate of Value.</p> <p>Such elause, in an open policy, is not violated by a slight overestimate of value which may reasonably be accounted for by honest differences of opinion, (p.349).</p> <p>8. Same — Estoppel—Proof of Loss — Affidavit—Evidence.</p> <p>An affidavit, taken to furnish proof of loss, is admissible at the trial to show compliance with the condition of the policy, but is not evidence of the amount of loss, and the assured by making such an affidavit is not thereby estopped from showing that the loss therein stated was an under-estimation of his actual loss, or that what he at first thought was a partial loss later proved to be a total one. (p. 350).</p> <p>9. Same — Policy—Breach of Warranty — Trust Peed.</p> <p>The existence of a trust deed upon the property insured does not constitute a breach of warranty of sole and unconditional ownership. (p.351).</p> <p>10. Same — Instructions—Evidence.</p> <p>Where the evidence is conflicting on the question of whether the loss is total or'only partial, and, if partial, as to the actual amount of loss sustained, and the promissory warranty to arbitrate the loss, relied on as a defense, has not been complied with and no waiver or legal excuse for non-compliance is shown, it is prejudicial error to instruct the jury to find for the plaintiff the full amount of insurance if they should believe the loss either total, or partial but equaling or exceeding the amount of insurance permitted and actually carried, andi to find for plaintiff and apportion the loss in case they find it to be less than the total insurance, (p. 357).</p> <p>11. Appeal and Error — Presentation for Review — Refusal of Instructions.</p> <p>This court will not reverse a judgment for the refusal to give an apparently good instruction, when the record'.does not appear to contain all the instructions given and does not show that the refusal to give such instruction was not justified on the ground that the point of the instruction was completely covered by some other instruction given but not brought upi with the record, (p. 352).</p> <p>12. Same — Presentation of Error — Presumption.</p> <p>Every reasonable presumption will be indulged in favor of the correctness of the rulings of the trial court, and error must affirmatively appear in order to warrant a reversal, (p. 353).</p>

<p>Appeal from Circuit Court, Wayne County.</p> <p>Bill by the Hill Clutch Company against the Independent Steel Company of America and others. Decree for plaintiff, and defendant Roekwood Sprinkler Company appeals.</p>

<p>1. Exemptions — Bight to Claim — Residence.</p> <p>Though one's intention and acts as to removal from the State may have madfe him legally a non-resident, yet if "before sale of his property under levy and at the time he claims its exemption therefrom he has by a change of intention and Circumstances in good faith again become a resident of the State, he is entitled to the benefit of the exemption lav. (p. 358).</p> <p>2. -Same — Affidavit of Claim — Sufficiency.</p> <p>An affidavit to an exemption list, which shows that the debtor is a husband, that he is absent, and- that exemption is claimed on his behalf by the affiant, his wife, by such showing complies with the statute wherein it requires the affidavit to specify the character in which the debtor claims to be entitled to exemption, (p. 359).</p> <p>3. Same — Property Subject.</p> <p>'One has such title to property sold him by another who retains title until full payment of the purchase price, that he may claim it as exempt from forced sale for a d’ebt other than the purchase price, (p.359).</p>

<p>.Appeal from Circuit Court, 'Wyoming County.</p> <p>Bill by Calvin Pardee and others against C. Crane & Co. Decree for defendant, and plaintiffs appeal.</p>

<p>1. G-as — Injunction.—Parties—Action Against Gas Company.</p> <p>Consumers of natural gas -are not necessary parties to a bill by a municipal corporation against the gas company to enjoin alleged violation of its franchise contract," and for an accounting of gas sold, (p. 375).</p> <p>2. Injunction — Might of Action — Existence of Other Memecties.</p> <p>In such case of alleged violation of a franchise ordinance the remedies at law, by mtod&mus or by enforcement of criminal ordinances against consumers of gas for violations thereof, are not as complete and adequate as the remedy by injunction and for specific execution, so as to justify denial of relief in equity, (p. 375).</p> <p>3. Municipal Corporations — Power to Grant Franchise.</p> <p>Where a municipal charter gives power and authority to open and lay out, graduate, pave, and otherwise improve streets, and “generally to ord'ain and enforce such regulations respecting the same as shall be proper for the health, interest or convenience of the inhabitants of said city, ’ ’ power is thereby also implied to grant the use thereof to gas companies and other public service corporations, but not the exclusive use, and also the discretionary power to refuse such privileges, and also to limit the same to a particular purpose not violative of some statute, rule of law, or rule of public policy, (p. 378).</p> <p>4. Same — Powers—Grant of Franchises — Sight to Limit.</p> <p>Possessed of such discretionary charter powers a municipality in granting a franchise may limit the use of its streets, alleys and public grounds to a particular purpose, without violating any rule of law or rule of public policy, (p.378).</p> <p>5. Monopolies — Municipal Franchise — Validity-.</p> <p>A franchise ordinance given a natural gas company by a municipal corporation to use its streets, alleys and public grounds for supplying natural gas for heating purposes, and conditioning the same that gas shall not be sold through the pipes of such company for lighting purposes in competition with gas manufactured by it, does not operate to create a monopoly in favor of such municipality in the manufacture and sale of manufactured gas, inhibited by any rule of law or rule of public policy, (p. 379).</p> <p>6. Same.</p> <p>The rule appears to be different in those states where public service corporations derive power and right to serve the public in a particular way, not from the municipality, but from the constitutional or statutory law, and requiring only the consent of the municipality to occupy its streets, alleys and public grounds for such purposes, (p.379).</p> <p>7. Gas — Municipal Corporations — Franchises-—Validity-.</p> <p>While a rule of frequent application is that when a public service corporation, accepts a franchise it accepts the same with the burdens imposed and is estopped to deny the validity of its conditions, yet where, as in this state, a limit to the power of a municipality to attach conditions is recognized, the attempt to impose unlawful or invalid conditions is regarded as a mere nullity, and if divisible, the rule is to disregard the unlawful or invalid part, leaving the remaining part unaffected thereby, (p. 381).</p> <p>8. Franchises — Obligations—Estoppel.</p> <p>But if a public service corporation has accepted the provisions of such franchise ordinance and by doing so enjoyed benefits which would not otherwise have been granted, and has thereby assumed obligations of money or service, which it ought not to escape, such liability will be enforced, and it will be estopped to deny the validity thereof, (p. 381).</p> <p>9. Gas — Grounds—Conditions in Franchise — Violation.</p> <p>Though a municipal corporation at the time it grants a franchise to a natural gas company to serve the public with natural gas for heating purposes owns and operates a plant for manufacturing gas for lighting purposes, and thereby lawfully conditions its grant to the natural gas company that gas shall not be sold through the latter's pipes for lighting purposes so as to compete with gas manufactured by it, nevertheless, if it afterwards grants to electric lighting companies franchises, and permits them to sell electricity for lighting purposes in competition with its gas, and knowingly and actually permits citizens not reached by its pipes to use natural gas for lighting purposes, and has suffered its gas plant to become dilapidated, and no longer manufactures gas reasonably fit for lighting purposes, and because of which others within reach of its pipes discard and refuse to use such gas, and without the consent and against the protest and notice of the natural gas company they make use of natural gas for lighting purposes, a court of equity will not, upon principles enunciated in the opinion, enjoin such natural gas company from permitting. such use of its gas and require it to account in damages to said municipality as for a breach of its franchise and for the gas so used for lighting purposes, (p. 382).</p> <p>(Poeeenbarger and Eobinson, Judges, dissenting.)</p>

<p>Error'to Circuit Court, Marshall County.</p> <p>Action by Hallie Janes Jameson against the Board of Education of Union District.' Judgment for defendant, and .plaintiff brings error.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by J. N. Wilkinson and others against R. D. Poling and others. Decree for plaintiffs, and defendants R. D. Poling and A. Thompson appeal.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by the South Penn Oil Company against the Gardner Oil & Gas Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Suit by A. L. Cummings against Sarah M. Hamrick. From decree for plaintiff, defendant appeals.</p>

<p>1. Coutoacts — Default in Performance — Cost of Completion — Certificate of Architect.</p> <p>The certificate of an architect, showing the cost of completion of a building by the owner, on default of the contractor, under a provision in the contract for such completion, making the contractor liable for the excess of the cost thereof over the balance due Mm, to be valid and conclusive, agreeably to the terms of the contract, must be founded upon a thorough and careful audit of such expense, (p. 416).</p> <p>2. Same — Building Contract — Default—Certificate of Architect.</p> <p>A certificate of expense under such a provision has not the dignity and conclusiveness in law of an award of arbitrators and may be impeached or set aside in a. legal forum, (p.418).</p> <p>3. Same — Breach . of Building Contract — Completion by Owner — Evidence.</p> <p>It is error in the trial of an action for recovery of such expense to exclude evidence tending, in connection with other evidence of failure to make a proper audit thereof, to show inclusion, in the amount certified, of the cost of extras or alterations not contemplated by the contract. (p. 419).</p> <p>4. Set-Oee and Counterclaim — Breach of Building Contract.</p> <p>The difference between the amount paid the contractor by the owner, under a building contract before breach thereof and the amount expended in the work by the iatter, is not a proper item of set-off against the expense of completion by the owner, when the contract binds the contractor to pay the cost of construction in excess of a stipulated sum. (p. 419).</p> <p>5. Same — Biiilding Contracts — Breach by Owner.</p> <p>Efforts of the owner to obtain unauthorized alterations of the work by the contractor's foreman do not constitute a breach of the contract by the owner, (p. 419).</p> <p>6. Judgment — Bes Judicata.</p> <p>A judgment in favor of the contractor in an action by the owner to recover money advanced and not expended on the work by the contractor does not estop the owner from suing to recover the expense of completing the work, after abandonment by the contractor, the causes of action being wholly different, (p. 419).</p> <p>7. Appeal and Error — Beview—Bulings on Evidence.</p> <p>Rulings of the trial court, rejecting offered evidence, not mentioned in any way as grounds of the motion for a new trial, nor made subjects of formal bills of exception, will not be considered in the appellate court as grounds for a new trial; but, if the verdict is set aside upon other grounds, such rulings will be reviewed for the purposes of the new' trial. (p. 419).</p> <p>(Lynch, Judge, absent.)</p>

<p>Contracts — Fraudulent Representations — Defense to Contract.</p> <p>The principle of point 7 of the syllabus in Tolley v. Poteet. 62 W. Ya. 231, relating to fraud in the procurement of a contract, reaffirmed and applied to the facts in this ease, reversing the judgment below.</p> <p>(Lynch, Judge, absent.)</p>

<p>Municipal Corporations — Injuries to Pedestrian — Contributory Negligence.</p> <p>A pedestrian who, on a dark night, walks, without a light, on an ungraded part of a walk way in a new and unimproved city addition, with knowledge of its dangerous condition because of obstructions thereon, in lieu of the drive way, which he knows is equally eon-venient and more seeure because unobstructed, is guilty of contributory negligence, precluding recovery against the municipality for any injury sustained while thereon.</p>

<p>1. Appeal and Error — Ground for Reversal — Ruling on Demurrer.</p> <p>An erroneous ruling upon a demurrer to each of two counts in a declaration, one of which is insufficient, is not alone ground for reversal, if plaintiff’s evidence was admissible under the good count and was sufficient to sustain the cause of action therein averred, (p. 430).</p> <p>2. Municipal Corporations — Streets—Permission to Maintain Coal V ault — Presumption.</p> <p>Permission by the municipality to construct and maintain a coal vault under and an opening thereto in a city pavement will be presumed from .acquiescence and use continued for several years, (p. 431).</p> <p>3. Same — Streets—Maintenance of Coal Sole — Duty of Lot Owners.</p> <p>A lot owner who maintains a coal hole in a city pavement as an appurtenance,' whether constructed by him or not, must exercise reasonable care in beeping it in a reasonably safe condition for use by the public as part of the sidewalk. Whatever the public safety reasonably requires is the measure of diligence to be exercised by him. (p.432).</p> <p>4. Same — Streets—Defective Sidewalks — Injuries to Pedestrian— Liability of Lot Owners.</p> <p>If he knows, or by the exercise of reasonable diligence would have known, the grating over a coal hole in the sidewalk in front of his property was defective, and failed to repair it, he is liable for an injury resulting therefrom to a pedestrian lawfully using the sidewalk. (p.432).</p> <p>5. Same.</p> <p>He remains liable for injuries to a pedestrian resulting from a defective coal hole grating in a pavement, when appurtenant to the premises, whether occupied in whole or in part by tenants, if the defect therein existed at the date of the demise, (p. 433).</p> <p>6. Same — Streets—Title to Coal Vault and' Opening' — Easements of Public.</p> <p>A grant of a lot abutting on a city street vests title to a coal vault under and an opening in a pavement, though in terms not expressly including either of them. Such title is, however, subject to the easement of the public for street purposes, (p. 433).</p> <p>7. Same — Streets—Injuries to Pedestrian — Contributory Negligence.</p> <p>A pedestrian is not guilty of contributory negligence solely because he steps on a coal hole grating in a public sidewalk, (p. 433).</p> <p>3. Landlord and Tenant — Defective Premises — Personal Injuries— Liability of Landlord.</p> <p>At the expiration of a tenancy, whether with or without actual change of possession, a landlord may lawfully enter and make neees^ sary repairs; and his neglect so to do renders him liable for injuries resulting from defects then existing in the premises demised, (p. 435).</p> <p>9. Appeal and Error — Presentation for Review' — Rulings on Evidence.</p> <p>Unless brought to its attention by special bills of exception, or ' upon a motion for a new trial, specifically stating as grounds therefor the admission or rejection of evidence, this court will not consider the rulings of the trial court thereon, (p. 437).</p> <p>10. Municipal Corporations — Streets—Injury to Pedestrian — Instructions.</p> <p>The trial court properly ruled on the instructions requested by the parties hereto, (p. 437).</p> <p>11. Evidence — Weight and Sufficiency — Preponderance.</p> <p>To sustain a finding in his favor, it is not essential there shoulc be a distinct preponderance of evidence on behalf of the plaintiff. To have this effect, it is only necessary that the.evidence, when considered in its entirety, reasonably justifies such verdict, (p. 438).</p> <p>12. Appeal and Error — Verdial—Evidence.</p> <p>This court will not grant a new trial where the evidence is voluminous and conflicting, unless palpably insufficient to sustain the verdict, or the amount clearly evinces partially, prejudice or passion on the part of the jury or that they were misled by some mistaken view of the merits of the ease, (p.438).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by A. R. Martin against Charles P. Reiniger. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Suit by T. E. Hobbs and others against the Hinton Foundry, Machine & Plumbing Company and others. From a decree for plaintiffs, defendants appeal.</p>

Kanawha County. Bill by S. W. Shrader and others against 6. M. Medley and others to cancel a tax deed. From decree for defendants, plaintiffs appeal.

Assumpsit by John R. Griffith against Harvey Cook. A verdict for defendant was set aside on motion, and new trial ordered, and defendant brings error.

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by Icy D. Collins against Katharine Degler. From decree for plaintiff, defendant appeals.</p>

<p>1. Insurance — Recovery for Partial Loss — Conditions Precedent.</p> <p>To warrant recovery for a partial loss, upon a valued fire insurance policy on real estate, it is necessary to prove compliance with a stipulation to arbitrate the loss, as a condition precedent to the right of action, or an excuse for non-compliance therewith, if it has been denied; and instructions authorizing recovery for such loss, without such proof, are erroneous, (p.463).</p> <p>2. Same — Policy—Additional Insurance.</p> <p>A condition in a fire insurance policy, avoiding it for additional insurance on the property, existing or subsequently acquired, is not nullified by a permit to take a limited- amount -of such insurance. (p.463).</p> <p>3. Same — Additional Insurance — Validity of Policy.</p> <p>A slight excess of additional insurance under such a permit, without proof of fraudulent intent in the procuration thereof, does not invalidate the policy, (p.463).</p> <p>4. Same — Action on Policy — Damages.</p> <p>Sequential injury or damages to the property insured, not readily discovered nor discoverable, until sometime after the fire, may be considered by the jury, (p.463).</p> <p>5. Same — Policy—Three-Fourths Value Clause — Validity,.</p> <p>A three-fourths value clause attached to a valued fire insurance policy is inconsistent with the statute, and, therefore, void. (p. 464).</p> <p>6. Samé — Action on Policy — Evidence.</p> <p>Cost of construction of the injured or destroyed building, the kind of materials used, their quality and cost, the character of workmanship and other similar matters, of a circumstantial nature, are admissible evidence on the issue as to the extent of the loss, and, in estimating the cost, a witness may use, as data, the bills paid for materials and labor in the construction thereof, (p. 464).</p> <p>7. Evidence — Demonstrative Evidence — Action on Insurance Policy— Evidence.</p> <p>Fragments of damaged wood, metal, glass and other materials taken from the injured building or debris are admissible as evidence of the extent and character of the injury, (p. 464).</p>

Assumpsit involving settlement of logging contract by James A. Dodge against M. M. Brown and others. Judgment for plaintiff, and defendants bring error.

<p>Error to Circuit Court, Fayette County.</p> <p>John Cooper was convicted in a homicide case, and brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Lottie M. Corbin against the City of Huntington for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Injunction — Breach of Contract — Memedy at Law.</p> <p>Equity will not enjoin the breaking of' a contract when an action at law for damages affords adequate relief, (p. 485).</p> <p>2. Same — Breach of Contract — Adequate Memedy at Law.</p> <p>Defendant agreed to purchase from plaintiff, for a period of three years, all the natural gas it would use in its manufacturing plant and to pay for same monthly at certain prices per thousand feet, graduated according to the quantity used. About the middle of the term defendant purchased natural gas from another gas company and ceased using plaintiff's gas, and plaintiff applied for an injunction to restrain defendant from purchasing gas from the other company during the term of the contract. Held: An aetion at law for damages for the breach of the contract is adequate and complete, and equity will not enjoin, (p. 485).</p>

Action by the State' against Ira C. Myers and others. Judgment for plaintiff, and defendants Joseph Schilansky and others bring error.

<p>Error to Circuit Court, Summers County.</p> <p>Action by S. B. Thomas against J. J. Mott. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Easements — Right of Way — Prescription.</p> <p>One who for ten years or more continuously travels a defined way over the lands of another, with the knowledge of the owner, but without the owner's permission, interruption, or denial of the use, acquires the way by prescription, (p. 499).</p> <p>2. Same — Right of Way■ — Obstruction by Gates.</p> <p>A way of- passage from a public road to a farm, over intervening agricultural lands, acquired by prescriptive use while the servient lands were unenclosed and unimproved, may be properly subjected to gates not unreasonably established and maintained, whenever the owners of the servient lands find it desirable to enclose the same for proper and ordinary use. (p. 499).</p>

Erorr to Circuit Court, Raleigh County. Action of trespass for cutting timber, by Harvey Cook and others against the Raleigh Lumber Company. Judgment for plaintiffs, and defendant brings error.

<p>Error to' Circuit Court, Cabell County</p> <p>Action by Lucy Campbell against Refus Switzer. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by Raleigh County Bank against J. H. Poteet and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the Twentieth Street Bank against J. B. Jacobs. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Lon Bradberry against P. C. Buffington, Sheriff, etc., and others. Judgment for defendants, and plaintiff brings error.</p>

Suit by Charles F. Clark against Sarah Gruber, adminis-tratrix, etc., and others. From a decree for plaintiff, the administratrix appeals.

<p>1. Municipal Corporation — Street Improvements — Creating a Debt.</p> <p>Contracting for street improvement to be paid for out of a city ’s current revenues is not creating a debt within the meaning of Sec. 8, Art. X, of the Constitution, (p. 539).</p> <p>2. Same — Improvements—Provision for Payment.</p> <p>It will not be presumed, because a city has not the fund in its treasury with which to pay for the work at the time it contracts for it, that it has not made ample provision for payment out of the current levy, (p.539).</p> <p>3. Same — Contracts—V alidity — Presumption.</p> <p>The courts will indulge every reasonable presumption in favor of the validity of a city's contract, appearing on its face to be reasonable and within the general scope of the city’s charter powers, (p. 540).</p> <p>4. Same — Contracts-—Besolutions.</p> <p>A resolution passed by a city council awarding a contract for street improvement will be presumed to have received the necessary two-thirds majority vote of counoilmen present at the meeting, when the minute contains no record of the vote. (p. 540).</p> <p>5. Same — Contracts—Validity.</p> <p>A contract for street improvement need not be in writing and signed on behalf of the city in order to be binding, (p. 542).</p> <p>6. Trial — Opening Case — Beeepiion of Omitted Mvidenae.</p> <p>A trial court has discretion to re-open a case at the request of either party, after it has been closed and before it has gone to the jury, and admit evidence to prove an omitted fact. (p. 542).</p> <p>(Lynch, Judge, absent).</p>

<p>1. 'Frauds, Statute oe — Contracts—Necessity of Writing.</p> <p>An agreement which does not, by its terms or by necessary implication, carry its full performance beyond a year need not be in writing, (p.545).</p> <p>2. Same — Oral Contract.</p> <p>An oral contract which may, in any possible event, be fully performed according to its terms within a year, is not within clause seven of the statute of frauds, (p.545).</p> <p>3. Same — Oral Employment Contract.</p> <p>An oral contract of employment, to cut and deliver all the mine props and ties on a large tract of land, at a stipulated price per hundred to be paid monthly, no time being fixed for the c&mpletion of the job, is not within the statute of frauds forbidding actions on contracts not to be performed within a year, unless in writing and signed by the party to be charged or his agent, although the employe expected, at the time lie undertook the work, that it would require six years to fully complete it. (p. 544).</p> <p>4. Same — Pleading.</p> <p>The statute of frauds- need not be specially pleaded but may be relied on under the general issue of non assumpsit, (p.548).</p> <p>(Poeeenbarger, Judge, dissenting).</p>

<p>Lquity — Qmetmg Tille — Pleadmg.</p> <p>A bill in equity which does not show that the plaintiff has such a clear and certain interest in the subject matter of the suit as would entitle him to the relief prayed for in relation thereto, is insufficient on demurrer.</p> <p>(Lynch, Judge, absent).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Carl Cheeks, by his nest friend, against the Virginia-Pocabontas Coal Company. Judgment for plaintiff, and defendant brings error. . „</p>

<p>Boundaries — Location—‘Effect of Deeck.</p> <p>A claimant under one of two deeds of different dates, made to different parties, contemplating an eight foot road or passage way between the two lots of land conveyed by them, and each calling for the side of the road next to it, as its boundary line, is limited to the line staked out for him along the side of the road,' even though the road may thus be given a breadth of more than eight feet.</p> <p>(Lynch, Judge, absent.)</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by. Glum Short and others against Daniel Short and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Yirginia Lee Henry against John Randolph Henry. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Indemnity — Declaration—Sufficiency.</p> <p>The declaration on a bond of indemnity given a corporation issuing a duplicate certificate of stock in lieu of one alleged to have been lost, pursuant to section 38, chapter 53, serial section 2871, Code 1913, held good on demurrer, (p.573).</p> <p>2. Corporations — Trust Relation to Stockholders — Transfers and Registration of Stock.</p> <p>A corporation is trustee for its stockholders, and is bound to protect their interests, as well in respect to transfers and registrations of its stock, as in all other matters pertaining to the business intrusted to it. (p.574).</p> <p>3. Same — Stock—Issuance of Duplicate Certificate — Indemnity Rond.</p> <p>In ease of loss of an original certificate of stock a corporation by the common law, and now by virtue of the statute, may be compelled, on terms of being secured by bond against loss, to issue to the owner of the stock a duplicate certificate, but not without incurring liability to a bona fide holder for value of the original certificate not lost, and also to an innocent holder after transfer of a certificate based on such duplicate certificate; but in either ease the bond of indemnity taken protects it against loss from any source growing out of the issuance of such duplicate certificate, (p. 574).</p> <p>4. Indemnity — Aetion on Bond — Defense.</p> <p>To be binding on a surety a bond of indemnity purporting to be the bond of both principal and surety must be signed by the principal, or be executed on his behalf by some one duly authorized, or the unauthorized act be subsequently ratified, or the principal be bound independently of the bond for breaches thereof, unless the surety has otherwise agreed to be bound thereby, or by his act he has estopped himself from denying his liability, and pleas of non est factum by the surety setting up want of such proper execution of the bond by the principal, and his non-liability thexeon, or for breaches thereof, constitute a good defense, (p. 575).</p> <p>5. Same — Bond—Liability of Surety — Agency.</p> <p>If such bond on its face purports to be the bond of principal and surety, and to be executed on behalf of the principal by an agent, it is the duty of the obligee in the bond to know the authority of the agent, and if such agent is not so authorized and the obligee accept the bond, the surety will not be bound thereby, though he may know that the bond has been so executed on behalf of the principal, and have reasonable cause to know the agent’s want of authority, nor will he be thereby deprived of his right to set up such want of authority by way of defense, (p. 577).</p> <p>0. Principal and Agent — Unauthorised Acts — notification.</p> <p>If the principal named in such bond would eseape responsibility for the unauthorized act of his agent in signing and executing the bond on his behalf he must promptly repudiate the same before the rights of third persons intervene, else he will be held to have ratified the unauthorized act, and be estopped to deny the agent’s authority, (p. 578).</p> <p>7. Indemnity — Action on Bond — Evidence—Declaration.</p> <p>Though a good cause of action on such indemnity bond be presented by the declaration the corporation plaintiff must fail if its evidence is insufficient to support the material allegations on which right of recovery on the bond depends, (p. 580).</p> <p>8. Appeal and Error — Beview—Trial By Court — Disposition of Cause.</p> <p>Where a jury is waived and a case is submitted to the trial court on the law and facts the rule in this court is to treat the case as upon demurrer to the evidence, and if plaintiff’s evidence is not sufficient to support the findings and judgment below in his favor to reverse the judgment and enter judgment here for defendant, (p. 582).</p> <p>9. Same — Trial by Court.</p> <p>But if in sueh case.it appears that the evidence in fact probably exists by which a good ease can be made on any issue on which right of recovery depends, and that there has been omission under misapprehension of law to adduce such evidence, the trial court should withhold its findings and judgment, and give the party in default reasonable opportunity to sustain his case; and if this has not been done, the judgment below will be reversed on writ of error and a new trial awarded, (p.583).</p> <p>(Lynch, Judge, absent.)</p>

<p>1. Fraudulent Conveyances — Action—Demand! Not Matured.</p> <p>A suit to set aside a fraudulent conveyance, under section 2, chapter 133, Code 1906, instituted by a creditor at large for a legal demand not due, cannot be maintained, (p.586).</p> <p>2. Creditor's Suit — Beginning of Suit — Date of Writ.</p> <p>When the bill is filed in such suit the time of the suit relates back to the date of the valid "writ, though not served, (p. 587).</p> <p>3. Same — Payment of Deit.</p> <p>When after such suit is brought, the debt then due is paid off and discharged by judgment and execution or otherwise, the questions arising on such bill become moot and tlie bill is properly dismissed, (p. 587).</p> <p>4. Same — Pleading—Demurrer.</p> <p>If such bill shows on its face in connection with the summons, whieh being a part of the record may be looked to on demurrer, that the debt due at the time of the suit had been paid off at the time the bill was filed, the demurrer is well,founded and should be sustained, and the bill not being susceptible of amendment is properly dismissed on demurrer, (p.587).</p> <p>(Lynch, Judge, absent.)</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Mark Howell against J. M. Wysor and others. Judgment for plaintiff, and defendant Wysor brings error.</p>

Bill by H. D. Dunn and others against the Bant of Union and others. Decree for defendants, and S. S. Steel and others appeal.

<p>Error to Circuit Court, Cabell County.</p> <p>■ Action by George W. Keller against F. C. Roetting, Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill by Bessie Zolsman against Louis Totz and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by S. P. Smith, Sheriff, etc., against Sunday Creek Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Homicide — In struciions — S elf-P efense.</p> <p>Ad instruction, given at the instance of the State, in the trial of an indictment for murder, where the accused admits the homicide and seeks to justify it on the ground of self defense, which excludes from the consideration of the jury extenuating circumstances showing want of malice, and which, in effect, tells the jury that they should find the accused guilty of murder in the second degree, unless they "believe he had cause to believe, and did believe, that it was necessary to kill deceased in order to save his own life or himself from great bodily harm, is prejudicial error and calls for the reversal of a judgment based on a verdict of second degree murder, (p. 618).</p> <p>2. Same — Murder—Seat of Passion.</p> <p>A person who has been struck, by some person unknown to him, a violent blow on the head with a stone .weighing about a pound and a quarter, hurled at him while standing on the steps of a railroad train, just as the train is pulling out from the station where a number of people have gathered in the night time, and who immediately thereafter draws his pistol and fires at, and hills, one of two persons standing a little apart from the crowd, who he supposed was the person that threw the stone and who he believes is in the act of hurling another at him, is not guilty of murder. Killing under such circumstances is done in the heat of passion suddenly aroused by sufficient provocation and is without malice, (p. 639).</p> <p>(Bobjnson, Judge, concurring only in result.)</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by C. L. Williams, as receiver, etc., against R. L. Burgess and another, partners, etc. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Application by J. E. Martin and others for writ of mandamus against J. B. White and others. ' Judgment for plaintiffs, and defendant brings error.</p>

<p>1.. Waters and Water Courses — Obstructions—Liability.</p> <p>One can not negligently obstruct or divert the water of a natural course to the injury of another without liability. . (p. 633).</p> <p>2. Negligence — Act of God.</p> <p>That which reasonable human foresight, pains, and care should have prevented can not be called an act of God. (p. 634).</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by Luther G-. Scott against C. L. Williams, Receiver, and others. Decree for plaintiff, and defendants appeal.</p>

Bill by A. Morrisey and others against C. L. Williams, Eeceiver, and by C. L. Williams, Eeceiver, against the Fidelity Banking & Trust Company and others.. The cases were consolidated, and from the decree, Morrisey and others appeal.

<p>Error to Circuit Court, Roane County.</p> <p>Action by G. G. Griffin and others against Andrew J. Run-nion and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Ass-umpsit by J. F. Griffith, executor, against R, W. Adair. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Executors and Administrators — Suit Against Executor.</p> <p>A bill filed by a -widow, and as creditor and devisee under the will of her deceased husband, against his executor, heirs and other devisees, within less than a year from the date'of the qualification of the executor, being the first executor, seeking an accounting, convention of creditors, and a decree for debts claimed by her and also a distribution of the estate, is premature, and demurrable, (p. 650).</p> <p>2. Costs — Costs on Appeal.</p> <p>When the demurrer to such .bill has been overruled and the cause heard on its merits, and dismissed as. presenting no cause for equitable relief, without a proper saving of plaintiff’s legal or equitable right accrued or to accrue, costs incurred in this court will be decreed appellant on reversal of the decree below, sustaining the demurrer, and remanding the cause with leave to amend and for further proceedings, (p. 651).</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Suit by L. L. Abbott against A. G. Williams and others. Decree for plaintiff, and defendant John P. Cooper appeals.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>William Davis was convicted of murder in the first degree, and brings error.</p>

<p>1. Master and Servant — Injury to Railroad Employe — Contributory Negligence.</p> <p>Knowing the dangers incident to railroad yards in the night time, -where cars are continuously in motion day and night, an employee who uses the yards in the course of his employment must constantly exercise sufficient care to ensure his own personal safety, and not rely solely on signals by bell, whistle or light; and if injured while therein by the tender of a reversed engine, the presence of which he was at the time and place of impact anticipating, but who when hit was observing the approach of a train on another track which he knew could not harm him, he can not, because of his own negligence, recover for the injuries inflicted. Under such circumstances, the only duty the master owes bis employee is to exercise reasonable care for his personal safety, (p. 669).</p> <p>2. Same — Injury to Railroad Employe — Contributory Negligence— Sight of Recovery.</p> <p>A railroad yard, where trains, cars and engines are continuously in motion to and fro day and night on the interlacing tracks, is essentially a place of constant danger, of which employees are duly cognizant; and duty to themselves requires their unremittent care and prudence when using the yard to observe such movements in order to avoid injury to themselves, and, if negligent, they can not recover, though no warning by bell or whistle or light be given of such movements, (p.669).</p> <p>3. Same.</p> <p>If guilty of negligence directly contributing to his injury, a servant can not recover from the master, (p. 669).</p> <p>4. Same — Injury to Hailroad Employe — Switchyard Operation.</p> <p>Employees engaged in switching cars and engines in railroad yard may reasonably assume that co-employees, familiar with dangers incident thereto, will, when using the yards for their own convenience, exercise necessary and reasonable diligence to protect themselves from such perils as may reasonably be expected therein, (p. 669).'</p> <p>5. Same — Injury to Servant — Switchyard Operation.</p> <p>• • The master owes no -duty to warn employees — by bell, whistle or light — of dangers in railroad yards, of the existence of which they are fully cognizant, as they owe themselves the duty of constant vigilance to avoid the perils incident to the use to which sueh yards are devoted, (p.669).</p> <p>6. Same — Injury to Servant — Assumption of Hislc — Dangerous Occupation.</p> <p>One who engages in the performance of services, of the inherently dangerous character of which he is fully aware, assumes the risks ordinarily incident thereto, and, if negligent, can not recover for injuries inflieated while so engaged, (p. 669).</p> <p>7. Same — Existence of Relation — Termination.</p> <p>The relation of master and servant is not dissolved by mere cessation of duties assigned, but continues sueh reasonable time thereafter as will afford the servant opportunity to reach a place of safety from perils of the employment, (p. 675).</p>

<p>1. Trial — Abstract Instructions.</p> <p>Though ordinarily not erroneous warranting reversal, an instruction should not state abstract legal propositions, unless it contains direction for proper application thereof to the facts of the concrete case. (p. 680).</p> <p>2. Same — Instructions•—Pleadings and Proof.</p> <p>Nor should an instruction be given in any case without averment and proof upon which to base it. (p. 682).</p> <p>3. Same — Instructions—Applicability—Evidence.</p> <p>Without proof of incompetency, and under an averment that a common carrier must “use due and proper eare and skill about carrying” passengers and charging a breach of such duty, an instruction based thereon, saying defendant's duty required employment of competent servants in the conduct of its business, is erroneous. Nor is it justified by the additional complaint that, without any just cause or excuse therefor, the employee, a conductor, “violently and forcibly grasped” and injured plaintiff, then a passenger on defendant’s car. (p. 681).</p> <p>4. Damages — Instructions—Invaamg Province of Jury — Exemplary Damages — Carriers.</p> <p>An instruction saying that if the jury believe from the evidence the servant’s aet was “malicious, wanton, willful or reckless, then, in addition to the actual damages” plaintiff “suffered for which she may be entitled to recover, the defendant is liable for exemplary or punitive damages ’ ’, is prejudicial, and therefore erroneous, as an infringement upon the discretionary right vested in juries to award or refuse exemplary damages or “smart money.” (p. 682)’.</p> <p>5. Trial — Instructions—Conformity to Evidence.</p> <p>Though for the purpose of ejecting plaintiff’s husband the servant may have used more force than was reasonably necessary in causing plaintiff to change her position on the ear, but he did not attempt to strike or beat her, an instruction directing a finding for plaintiff, based upon the jury's belief, from the evidence, that the servant “did strike, assault, beat or mistreat her”, will be deemed erroneous, because of its apparent tendency to create prejudice against defendant, (p. 682).</p> <p>6. Carriers — Ejection of Passenger — Tortious Acts of Servant— Liability of Carrier.</p> <p>The authority conferred by $31, ch. 145, Code, does not relieve the master from liability for the tortious acts of the servant while; engaged in actual discharge of official functions, (p. 683).</p> <p>7. Same — Ejection of Passenger — Eight.</p> <p>The right of ejection authorized by such statute is not dependent upon the personal safety or reasonable comfort or convenience of other passengers, and an instruction so limiting it is erroneous, (p. 684).</p> <p>8. Same — Ejection of Passengers — Evidence.</p> <p>Upon the right of ejection of passengers for disorderly conduct, it is not improper to show complaint of sueh conduct by fellow passengers, (p.685).</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by the Columbus Onyx & Marble Company against R. B. Miller and another. From decree for plaintiff, defendant named appeals.</p>

<p>3. Insurance — Policy—Compliance With Iron Safe Clame.</p> <p>A clause in a fire insurance policy requiring the insured to “keep a set of hooks, which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, ’ ’ is not complied with by keeping books which do not show the items sold but only the gross amounts of weekly sales, (p. 696).</p> <p>2. Same — Severable Policy — Liability’.</p> <p>• Where an insurance policy is issued covering different elasess of property, each insured for a stated amount, and there is a breach of a condition or warranty respecting one class not affecting the risk as to others, the contract should not be considered as entire but as severable, and a recovery allowed on account of the property not affected by the breach, notwithstanding the policy stipulates that it shall be void and no action brought on it when any one of its conditions or warranties are broken; provided the insured has committed no fraud and no act prohibited by public policy is involved. (p. 699).</p> <p>3. Same — Severable Policy — Breach of Iron Safe Clcmse — Mgth of Recovery.</p> <p>A breach of the iron safe clause in a policy of fire insurance, covering a stock of merchandise, fixtures, household furniture and the building containing them, each insured for a specified sum, avoids the poliey only in respect to the stock of merchandise, (p. 699).</p> <p>4. Evidence — Pa/rol—Inmrcmoe Policy-.</p> <p>Parol evidence is admissible to contradict the terms of a fire insurance policy, respecting the location of the property and the insured’s estate therein, when oral application for insurance was made to the insurer’s agent, and the insured, several days thereafter, received Ms policy by mail and failed to read it until after the loss, (p.699).</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Paxton Grove was convicted of obtaining property by false pretenses with intent to defraud, and brings error.</p>

Proceeding to obtain execution on a forthcoming bond by Frank Walker against H. L. Gamble and others. Judgment for plaintiff, and defendants bring error.

<p>1. Divorce — Grounds—Discourtesy.</p> <p>Uniform and continued discourtesy of one spouse to the other, manifested in various ivay&, such as denial of social intercourse, coolness of manner, disavowal of love, expression of hatred and refusal of company at church and elsewhere, while both reside together, the husband providing support and the wife performing the ordinary household duties, is not alone ground for divorce, (p. 710).</p> <p>2. Same — Grounds.</p> <p>Nor is such discourtesy combined with exelusion of the husband from access to the wife’s bed and refusal of sexual intercourse, while the marriage relation remains otherwise unimpaired, ground of divorce, (p. 710).</p>

<p>1. Statutes — Construction.</p> <p>Of two permissible constructions of a statute, one leading to unjust or absurd results and the other to equity and fairness, the latter is to be adopted, upon the presumption that the legislature did not intend the results flowing from the former, (p. 721).</p> <p>2. Election’s — Appointment of Registrars — Political Parties.</p> <p>Seo. 1 of chap. 45 of the Acts of 1911, see. 98a I of chap. 3 of the Code of 1913, serial see. 121, requiring the county court of each county, for the purposes of every general election, to appoint for each voting precinct in its county, two persons for registrars, one from each of the political parties which at the last preceding election cast the highest number of votes in the county, but prescribing no specific rule for ascertainment of the political parties entitled to such representation, falls under the rule of interpretation, just stated, in the application thereof under the facts of each case as it arises in the course of administration, (p. 721).</p> <p>3. -Same.</p> <p>And, in such cases, the court and administrative bodies are not limited, in the inquiry as to the question of party status, to the facts recorded in the returns of the preceding election, (p. 716).</p> <p>4. Same — Appointment of Registrars — Political Parties — Burden of Proof.</p> <p>A new political party, or one not previously entitled to representation, by reason of its weakness, seeking the place formerly held by an old, established and dominant party, carries the burden of proof of its ascendancy over the other in the last preceding election. (p. 716).</p> <p>5. Same — Appointment of Registrars — Political Parties — Test of Strength.</p> <p>If such claimant, in the last preceding election, instead of nominating and supporting a complete ticket, embracing candidates for congressional, state and county offices, or some candidates for such offices, so as to make a substantial test of its relative strength against such other party, endorsed or renominated as its own all of the congressional, state, judicial, legislative and county candidates of the other and placed on its ticket candidates differing from those of the other, only for President and Vice-president of the United States and electors, -it cannot be considered as having prevailed over such older party, in such election, within the meaning of said statute, even though its candidates for the national offices received a larger vote than the candidates of the older party for the same offices and. the candidates having their names on both tickets received more votes as candidates of the new party than were cast for them as candidates of the other, (p. 716).</p> <p>6. Evidence — Judicial Notice.</p> <p>Courts take judicial notice of matters of common knowledge and current history, (p. 716).</p> <p>(Bobinson and Williams, Judges, dissenting.)</p>

<p>Trial — Direction of FeréioL — Evidence.</p> <p>In an action for damages by servant against master for injuries, alleged to be the result of the master’s negligence in providing defective and unsafe machinery or appliances, if the character of the evidence is such that the court would not properly allow a verdict in favor of plaintiff to stand, it is proper practice, on defendant’s motion, to strike out the evidence and direct a verdict in his favor, (p. 731).</p>

<p>1. Criminal Law — Proof of Venue — Sufficiency.</p> <p>On a trial of one for homicide, the declarations of living witnesses, not produced, are incompetent to prove the location of a county line, and to establish by reputation the venue of the crime; nevertheless the evidence of a surveyor that he traced a line pointed out to him as the county line, by the marks on the trees, three hacks, as county lines are usually marked, in the absence of proof to the contrary, is sufficient for the purpose of the trial to show the location of the line, and the venue of the crime, (p. 734).</p> <p>2. Same.</p> <p>The venue of a crime need not be proven by direct evidence, but evidence, if legal and competent, from which the fact may be reasonably inferred is all that is required, (p. 735).</p> <p>3. Homicide — Evidence—Character of Deceased.</p> <p>Evidence that the deceased some eight days before and in the vicinity of the homicide procured a pistol and by discharging it in the floor in the direction of his feet and in the presence of the prisoner required another member of the company to dance for the amusement of himself and others, and which was in no way connected with or related to the crime, is incompetent on the question of the violent and dangerous character of the deceased, or to characterize his acts at the time of the homicide, (p. 736).</p> <p>4. Same — Evidence—Self-Defense.</p> <p>On a trial for homicide where one of the issues is self defense it is competent for the prisoner to give in evidence the state of his feelings and belief as to the conduct of the deceased at the time of the homicide, (p.736).</p> <p>5. Criminal Law — Trial—Offer of Proof — Statement of Counsel— Excluded Testimony.</p> <p>And where on such trial objection is made to a question propounded to the prisoner it is not error for the trial court to refuse to allow counsel to state in' the presence of the jury what he proposes to prove by the prisoner in answer to a leading question respecting his belief or intent at the time he dealt the deceased the fatal blow. (p. 737).</p> <p>6. Same — Cautionary Instruction — Seasonable Doubt.</p> <p>It is improper practice on the trial of erime to tell the jury in an instruction that “the oath of a juror imposes upon him no obligation to doubt where no doubt would exist if no oath had been administered.” Such language is too refined, the meaning obscure, and is liable to confuse rather than enlighten the minds of the jurors, and was condemned in State v. Taylor, 57 W. Ya. 283. (p. 737).</p> <p>7. Homicide — Instructions—Evidence—Question for Jury.</p> <p>State’s instructions numbered 6 and 9 state correct legal propositions, and were not erroneously given because not supported by any evidence, (p.737).</p> <p>8 Same — Instructions—Exclusion of Defendant’s Theory.</p> <p>On the trial of one accused of homieide, resulting in a mutual combat, in the heat of passion or hot blood, it is error in the giving of binding instructions, on the theory of self defense, and the degrees of homieide, to exclude the prisoner’s theory of manslaughter. (p.739).</p> <p>9. Criminal Law — Appeal—-Instructions—Presentation for Review — ■ Presumption.</p> <p>Where on a trial for homicide the record fails to show that other instructions covering the subject were given on behalf of the prisoner, but does show that proper instructions were asked and refused, if prejudicial, the judgment for such apparent error should be reversed and a new trial awarded. The trial court, in mating up bills of exception involving instructions, should make them show all the instructions given and refused, (p. 739).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Willard Gunnoe was convicted of murder in the second degree, and brings error.</p>

<p>1. Appeal and Error — Presentation for Bevieu — Presumption.</p> <p>Error will not be presumed but must affirmatively appear by tire record, (p.752).</p> <p>2. Same — Discretionary Puling■ — Denial of Continuance.</p> <p>The granting of a continuance is largely a matter within the sound discretion of the trial court and the refusal to grant it does not demand a reversal unless it clearly appears that there has been an abuse of discretion prejudicial to the party eompalining. (p. 753).</p> <p>3. Master and Servant — Injury to Servant — Actionable Negligence.</p> <p>It is actionable negligence for the master to set his servant to repair a piece of machinery, with the operation of which the servant is ignorant, which is liable to be set in motion and to become dangerous while the servant is working on it, without warning him of the extraordinary hazard, (p. 753).</p>

<p>1. Attachment — Affidavit—Statement of Claim — Sufficiency.</p> <p>An attachment affidavit, in an action on a contract for the sale and delivery of goods to plaintiff, not stating the terms of the contract nor the character of the goods sold, and showing no other cause of action than, “that the time for the performance of the obligations,” under the contract had passed, does not sufficiently state the nature of plaintiff's claim, (p. 757).</p> <p>2. Same — Waiver of Irregularities — Giving of Forthcoming Fond.</p> <p>By the giving of a forthcoming bond, as provided in Sec. 10, Oh. 106, serial section 4464, Code 1913, defendant does not waive irregularities and defects in the attachment proceedings, (p.758).</p> <p>3. Same — Forthcoming Bond — Election.</p> <p>Having given a bond with alternative conditions to have the attached property forthcoming at such time and place as the court may require, or to perform the judgment of the • court, defendant may elect to perform either condition; and his motion, thereafter made, to quash the attachment will be treated as his election to have the property forthcoming, (p. 758).</p>

<p>1. Intoxicating Liquors — Shipment—Right to Receive.</p> <p>The statute, Code 1913, eh. 32A, see. 19, forbids an express company, when it shall have carried a shipment of intoxicating liquors to the point where consigned to the consignee, from delivering the shipment to anyone but the consignee in person, (p. 762).</p> <p>.2. Same — Shipment—Right to Receive — Ca/rriers.</p> <p>A. common carrier over whose lines a shipment of intoxicating liquors has not been consigned, but merely in whose care it has been consigned over other lines to a destination point, can not aet .-as the agent of the consignee in receipting for and accepting delivery of the shipment, (p.762).</p>

Suit by the Fidelity Trust Company and others against the Davis Trust Company and others. Decree for plaintiffs, and defendant named brings error.

<p>Error to Circuit Court, Jefferson County.</p> <p>E. Graham Wilson was convicted of rape, and brings error.</p>

<p>1. Constitutional Law- — Criminal Law — Equal Protection — Justices of the Peace.</p> <p>Section 230, chapter 50, Code, serial section 2785, Code 1913, properly construed is not violative oí the "equal protection” provisions of section 1 of the fourteenth amendment to the federal constitution, (p.786).</p> <p>2. Jury — Bight to Jury Trial — Appeal from Justice’s Court — Validity of Statute.</p> <p>Said section properly construed gives the accused absolute and unconditional right of appeal from the judgment of the justice, as a means of preserving to him on sueh appeal trial by a jury of twelve persons according to the course of the common law; his right to be discharged from custody pending such appeal, however, to be conditioned upon his entering into a recognizance, with surety, and conditioned as required by said section, (p.787).</p>

<p>Error to Circuit Court, Jefferson County.</p> <p>Action by William Lowry against the Baltimore & Ohio Railroad Company, Judgment for defendant, and plaintiff brings error.</p>

<p>Error-to Circuit Court, Morgan County.</p> <p>Action by George A. Sanders agains H. L. Wise and others, Judgment for plaintiff, and defendant Frank S. Wise, executor, etc., brings error.</p>

<p>1. Appeal and Error — Trial—Instruction After Submission — Sufficiency of Objection.</p> <p>If in the trial of an issue at law, and after submission of the ease, the court gives to the jury an instruction, good in form and substance, either sua sponte or at the request of the jury or of a party litigant, and there is only a general objection thereto, such action by the court will not constitute reversible error, (p. 802).</p> <p>2. Wills — Issue Devisavit Vel Non — Instructions.</p> <p>On an issue devisavit vel non under §32, eh. 77, Code, where a will containing several distinct items is attacked, both as a whole and as to some items thereof, on the grounds of undue influence and lack of testamental capacity, it is error to instruct the jury that, if any part of the paper is found “not to represent the intention of the testator and not to be his will”, then, in effect, “the will as a whole is not the true and last will and testament of” the. decedent. (p. 801).</p> <p>3. Trial — Instructions—Bvidenoe.</p> <p>It is error to give an instruction where there is no evidence to support it. (p. 803).</p>