Volume 75 — West Virginia Reports

<p>Petition by 'William Rose, doing business as the Rose Transfer Company, filed before the Public Service Commission, complaining of the Chesapeake & Ohio Railway Company, a corporation, and another, and praying for certain relief. Petition dismissed, and petitioner seeks an order of reversal.</p>

<p>Error to Circuit Court, Roane County.</p> <p>O. B. Wetzel was convicted of embezzlement and brings terror.</p>

<p>1. Logs and Logging — Sale of Land — Reservation of Tiniber — Construction and Effect of Deed.</p> <p>E. conveyed to 8. a tract of land on which A. held right to cut and remove the timber within five years, not then expired, the deed reciting: ‘ ‘ The timber upon this tract of land was sold to A. by E. and is therefore reserved by the party of the first part in this deed. ’ ’ Held: Only the right of A. to cut and remove the timber within the five years was reserved or excepted, not a right of reversion to E. in ease the timber was not cut and removed by A. within the time; and, the right of reversion upon A's failure to cut and remove passed by the conveyance to S., the grantee, (p. 21).</p> <p>2. Deeds — Construction.</p> <p>Generally, where the language of a deed is susceptible of two interpretations, and the uncertainty is not cleared by evidence properly admissible, that interpretation is to prevail which is most favorable to the grantee, (p. 24).</p>

<p>1. Vendor and Purchases — Bona Fide Purchasers — Begistration of Title — Land in Several Counties.</p> <p>If a tract of land lies partly in two or more counties, recordation of the deed in one only of such counties does not protect the portions lying in the others from the claims of creditors and subsequent purchasers for value and without notice. Por full protection as to all parts of the land, the deed must be recorded in every eounty in which any of it lies. (p. 28).</p> <p>2. Taxation — Sale of Land — Begistration of Title — Deeds by Court Commissioners.</p> <p>The recording acts of the state of Virginia in force in the year 1844 and sec. 5 of chap. 74 of the Code of this state apply to deeds made by court 'commissioners, in the execution of decrees of sale of forfeited and delinquent lands, (p. 28).</p> <p>3. Wills — Construction—Presumption Against Intestacy.</p> <p>General and indefinite language in a will is aided by the presumption against intestacy, (p. 30).</p> <p>4. Taxation — Non-Payment of Taxes■ — Presumption—Forfeiture of Title.</p> <p>There is a presumption against forfeiture of title for non-entry for taxation and non-payment of taxes, which relieves a plaintiff in a proceeding for vindication of his title, from necessity of proof of taxation thereof and payment of the taxes, until impeaching evidence has been adduced by the defendant, (p. 31).</p> <p>5. Appeal and Error — Fquity—Disposition of Cause. ‘</p> <p>When the record of a chancery cause discloses lack of development of the merits of vital issues in the cause and strong probability of the existence of evidence decisive thereof, the decree is reversed and the cause remanded for further proceedings, (p. 31).</p>

<p>Application on behalf of one De Constantin to the Supreme Court for an order requiring the Public Service Commission to allow a rejected claim to right of participation in the workmen’s compensátion fund.</p>

<p>1. District and Prosecuting Attorney — Duties—Schools and School Districts.</p> <p>It is the duty of the prosecuting attorney, imposed by section 49, chapter 39, Code, to serve independent district boards of education as well as other district boards, as thereby prescribed, (p. 37).</p> <p>2. Schools and School Districts — Power to Employ Counsel.</p> <p>But said section does not deprive such independent district boards of the implied power, to employ other counsel, or additional counsel to assist the prosecuting attorney, where, in their judgment and reasonable discretion the character of the business, or on account of the absence of the prosecuting attorney, or his incapacity, sickness, or other disability, or his refusal to act, there is necessity therefor. (P-38).</p>

<p>Taxation — Valuation—Correction by Assessor.</p> <p>After the land and personal property hooks have been certified to the assessor by the board of equalization and review, pursuant to section 18, chapter 29, serial section 902, Code 1913, mandamus will not lie to compel the assessor to correct the valuation of lands assessed in accordance with some previous minute or order of the board, or to extend the taxes in accordance with such corrected valuations. The final act of such board in so certifying said books to the assessor is conclusive upon him, and upon the board after its adjournment.</p> <p>(Williams, Judge, absent.)</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Action by John P. Townsend against Brushy Run Lumber Company. Judgment for plaintiff, and defendant brings err0r-</p>

<p>1. Principal and Agent — Authority of Agent. — Sales.</p> <p>An agent authorized to sell fruit in ear load lots on certain prescribed conditions only, one of which is that all deliveries shall be made f. o. b. cars at the seaboard, can not bind his principal by contracting with a buyer, who has knowledge of the conditions, to deliver elsewhere, (p. 55).</p> <p>2. Same — Authority of Agent — Notice to Buyers.</p> <p>A purchaser who has received a printed copy of such conditions governing sales, before making his purchase, is chargeable with notice thereof. His ignorance of the English language is not a legal excuse for his failure to inform himself respecting the contents of the writing, (p. 55).</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>.Action by T. S. McNeel, trustee in bankruptcy, against J. F. Folk. Judgment for defendant, and plaintiff brings err0r'</p>

<p>1. Corporations — Public Service Corporation — Continuance of Duties.</p> <p>As long as a public service corporation retains a franchise it must fulfill the obligations to the public directly or impliedly arising from the same. (p. 61).</p> <p>2. Same — Public Service Corporation — Surrender of Franchise.</p> <p>For a public service corporation to surrender a franchise, corporate action on its part in that behalf is necessary, (p. 61).</p>

<p>1. Carriers — Injury to Passenger — Special Police Officers — Liability of Carrier.</p> <p>A special police officer appointed by the Governor at the instance of a railway company, though prima facie a public officer, is, when specially employed by the company to enforce its rules and to protect the passengers on its trains, in that regard a servant of the company, and if while on a train as such servant he inflicts injury on a passenger, not aeting in his capacity as a public officer for the vindication of the law, or not justified by the law of self "defense, the company is liable, notwithstanding the injurious act is prompted by motives purely personal to the servant, (p. 63).</p> <p>2. New Trial — Order Granting — Limitations to Particular Question.</p> <p>As' a general rule a new trial when granted is awarded for the entire ease; but when manifest justice demands, and it is clear that the course can be pursued without confusion, inconvenience, or prejudice to the rights of any party, a new trial may be limited to a particular, separable question, (p. 65).</p> <p>3. Appeal and Error — JReversal—Order Granting New Trial — Limitation of Particular Question.</p> <p>Where there is no error as to the trial on the merits of the action, but there is te.ehnical error in the overruling of a demurrer to the declaration, in that the appointment and qualification of the plaintiff as administratrixes not averred, which point was not expressly raised or deemed of consequence in the court below, a new trial will be limited to the issue made on the omitted averment when supplied, (p. 65).</p>

<p>1. Boundaries — Description in Deed' — High-Water Marie.</p> <p>A division line between two tracts of land, described in deeds as starting at high-water mark of a river at a certain point and then following the meanders of the river and binding thereon to another point at high-water mark, so as to include the river in one of the tracts, takes in all of the beach and bank, but does not extend beyond the vegetation line. (p. 73).</p> <p>2. Same.</p> <p>High-water mark of a non-navigable stream, called for as a line in a deed of conveyance, is the line to which the river has wholly or practically destroyed vegetation, by its current, wash or flow, and rendered the land unfit for meadow, pasturage or cultivation, (p. 73).</p> <p>3. Injunction — Grounds—Trespass.</p> <p>An owner of land whose title is clear as matter of law, so as to preclude necessity of resort to a jury trial for determination thereof, may enjoin the erection of a building thereon by a stranger, without his permission, (p. 74).</p> <p>4. Appeal and Error — Harmless Error — Parties.'</p> <p>If, in such case, the trespass has been committed by one only of two or more owners of adjacent lands, under a claim of title to the land on which the building is in process of ereetion, and the plaintiff has made the trespassers only parties to his suit, the decree will not be reversed for omission of the other owners, since the title is only collaterally involved and the appellant is not prejudiced by the omission, (p. 75).</p>

<p>1. Justices of the Peace — Bight of Appeal — Waiver.</p> <p>The right to an appeal from the judgment of a justice to the circuit court is not waived by the exercise of the privilege of a new trial before the justice, after an adverse verdict of a jury. (p. 76).</p> <p>2. Same — Appeal—New Trial.</p> <p>Such an appeal is not a new suit within the meaning of sec. 91 of chap. 50 of the Code. (p. 76).</p>

<p>1. Mechanics’ Liens — Enforcement of Lien — Bar of Suit — Adding New Party.</p> <p>Though in a suit by a subcontractor against the owner to enforce his lien, the principal contractor, a necessary party, is not impleaded in the original bill, the suit will not be barred by bringing him in on an amended bill, filed six months after the filing of the lien for record, the owner of the property not being prejudiced thereby, (p. 79).</p> <p>2. Same — Statement of Account — Sufficiency—Bate of Items.</p> <p>An account by items, of a subcontractor, dated April 30, 1906, duly sworn to and recorded, and filed with the owner July 5, 1906, in compliance with section 3, chapter 75, Code 1913, the last items therein for labor and material, as shown thereby, having been furnished May 31, 1906, constitutes a substantial compliance with said statute, although the year of the first and of some of the subsequent items does not appear opposite or above the date of the items charged in the account, (p. 79).</p> <p>3. Same — Payments—Application—Subcontractor.</p> <p>While the statute gives no lien on the property of the owner for any items in an account of such subcontractor furnished beyond the period of nine months from the date of the notice served on the owner; nevertheless it gives a lien thereon for all items of the account furnished within such period of nine months, and payments made and credited will be applied first to the items not covered by the lien, so as to preserve the lien for the items actually furnished within that period, (p. 81).</p> <p>4. Same — Debt Secured — Continuous Contract.</p> <p>Where the contract of such subcontractor is a continuous one, and the labor or material furnished thereunder has been done in execution thereof, though in part by the order of the owner, after the failure of the principal contractor, he is by the statute entitled to the lien therefor, by giving notice to the owner, and filing his account for record within the time specified in the statute, after he shall have ceased to perform the labor or furnish such material, p. 82).</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Suit by M. Copelan against Eli Sohn and others. Decree for plaintiff, and defendant Sohn appeals.</p>

<p>1. Taxation — Nonpayment of Taxes — Forfeited Lcmds — Transfer of Title — Possession.</p> <p>To co-operate with other essential requisites of §3, Art. 13, Const., to transfer title to lands held under patent and forfeited for non-entry and non-payment of taxes, it is essential that the claimant under the first and third classifications of the constitutional provision must have had actual possession of so much of the forfeited lands as he claims title to under such section, (p. 94).</p> <p>2. Same — Nonpayment of Taxes — Forfeited) Lands — Titles of Claimant.</p> <p>The claimant under the second classification of $3, Art. 13, Const., must deraign title from the commonwealth of Virginia or this state, (p. 94).</p> <p>3. Same — Nonpayment of Taxes — Forfeited Lands — “Aetual Possession. ’ ’</p> <p>• The possession of an owner who under color of title enters upon lands which include within their exterior boundaries part of a tract title to which vested in the state by forfeiture, and for ten years actually occupies portions of the inclusive tract but no part of the forfeited land, being actual as to such portions, will be held and treated, under §3, Art. 13, Const., as actual possession of so mueh of the forfeited tract as is included within the bounds of the larger area not in actual or virtual possession of the state, the former owner or others claiming under them. (p. 94).</p> <p>4. Same — Nonpayment of Taxes — Title of Forfeited Lands.</p> <p>Title to lands forfeited for non-entry and non-payment of taxes vests in the state as the true and exclusive owner; and she can not be divested of such title except in the manner required by law. . (p. 94).</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by ITattie A. Tramel against R. M. Stafford. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Railboads — Transportation Facilities — Order of Public Service Commission — Determination of Reasonableness.</p> <p>Though competent upon an inquiry as to the reasonableness of an order entered by the Public Service Commission requiring installation and operation of a passenger carrying service on a lateral line constructed under the provisions of §2983, Code 1913, a comparison, of the'expenses incident thereto with prospective returns therefrom is not controlling, (p. 104).</p> <p>2. Same — Transportation Facilities■ — Order of Public Service Commission — -Determination of Reasonableness — Factors Considered'.</p> <p>Quere: Whether, in determining that question, the relation of the branch line to the system of which it is a part, the public convenience to be served, the character and volume of traffic, personal and freight, present and prospective, the necessary cost of installation and of service, and the effect on the revenues of the entire system, are factors to be considered and viewed in the light of all the circumstances and conditions attendant upon the performance required. (p. Í06).</p> <p>3. Same — Transportation Facilities — Order of Public Service Commission — Determination of Reasonableness.</p> <p>Quere: Whether, in a proceeding to obtain from the Commission an exercise of the power conferred by §4; Oh. 9, Acts 1913, the question of revenue to a railroad company from a branch line, in so far as deemed controlling on the fairness and reasonableness of' a requirement for passenger service thereon, is to be determined by consideration of both freight and passenger traille originating on the branch line in connection with the railroad system as a whole; and if, when so considered, the total returns from such traffic permit of a reasonable margin of profit to the company, it can properly complain that the requirement entails a loss on the passenger ..service alone, (p. 104).</p> <p>4. Same.</p> <p>Quere: Whether, before an order of the Commission requiring adequate passenger facilities on a lateral line can be deemed don-fiseatory, it must appear that the revenues of the entire system are insufficient to meet the additional expense necessary therefor with a fair margin of profit, (p. 105).</p> <p>5. Same — Public Service Commission — Powers.</p> <p>Such Commission'has authority, under Ch. 9, Acts 1913, to require railroads to provide adequate facilities for the transportation of persons and property on both main and lateral lines, (p. 105).</p> <p>6. Same — Transportation Facilities- — -Duty to Furnish.</p> <p>So long as it retains its corporate entity, a railroad is legally compellable to furnish reasonably adequate facilities for the transportation of persons and property on the lines operated, whether main or branch lines, subject to such regulations and charges as are prescribed by statute, or by the corporation not inconsistent with general statutory provisions; provided only that the requirement therefor, viewed in the light of all the circumstances attendant thereon, does not entail a substantial loss to the operator.</p> <p>7. Same — Confiscation—Burden of Proof.</p> <p>On the operator rests the burden of showing data from which to determine whether the required service is in effect confiscatory, (p. 105).</p> <p>8. Same — Reasonableness of Service — Factors.</p> <p>Mere excess of estimated operating expenses above prospective returns from the required service on a branch line is inadequate upon the question of reasonableness. Other factors are requisite for that purpose, (p. 106).</p> <p>9. Same — Adequate Service — Bequirement.</p> <p>Requirement of adequate service and facilities therefor does not presuppose the previous existence of either service or facilities. It applies alike to cases -where the carrier has failed to provide any serviee and where it has provided insufficient service or facilities, (pp. 105,106).</p>

<p>1. Pleading — Declaration—Amendment•—Departure.</p> <p>The amendment of a declaration so as to show that the promise originally declared on as made jointly by two, was in fact made by four persons, two of whom died before the action was brought, is not a departure for the original cause of action, (p. 108).</p> <p>2. Descent and Distbibution — Liability of Heir — Contract of Ancestor.</p> <p>The heir is not personally liable for the promise of his ancestor, (p. 109).</p> <p>3. Judgment — Motion in Arrest.</p> <p>Motion in arrest of judgment is proper only in ease of error apparent on the face of the record, which vitiates the proceedings, (p. 109).</p>

<p>1. CONTRACTS — Construction.</p> <p>In construing contracts courts should look to the circumstances surrounding the parties, the subject matter and general purpose the parties had in mind in order to determine the meaning of words and make correct application of them to the things described, (p. 112).</p> <p>2. Appeal and Error — Ohjection Below — Reception' of Evidence.</p> <p>A party who neither objects to the introduction of secondary evidence, nor moves to exclude it on the ground that it is not the best evidence, will not be heard to complain thereof in this court, (p. 113).</p> <p>3. Evidence — Best and Secondary — Builder’s Contract — Certified Copy.</p> <p>When a builder’s contract has been recorded in the office of the clerk of the county court pursuant to Sec. 5, Ch. 75,’ Code, a copy thereof, attested by such clerk, may be used as evidence in lieu of the original. Such copy is primary eidence. (p. 113).</p> <p>4. Witnesses — Contradiction—Record in Prior Suit.</p> <p>. Where a contractor has brought a suit to enforce his mechanic’s lien, claiming a balance due him on the original contract and also for extra work and material, and thereafter, by agreement with the owner, withdraws his suit without prejudice to his right of action for any balance that maybe found to be due him on final settlement, and later, before settlement, brings his action to recover an alleged balance, the record in the first suit is admissible in the second for the purpose of contradicting his testimony, when it appears that the account claimed to be for extras in the first suit differs from that claimed in the second, (p. 115).</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by Amos Bright and others against C. E. Mollohan and others. ' Decree for plaintiff, and J. P. Thompson appeals.</p>

<p>1. Attachment — Affidavit—Requisites.</p> <p>In an affidavit for an attachment, the material faets relied on to support the grounds of attachment must "be of positive import hearing out those grounds, and he of sufficient certainty and particularity to enable the party proceeded against properly to defend, (p. 121).</p> <p>2. Appeal and "Error — Presentation for Review — Refusal of Supplemental Affidavit in Attachment.</p> <p>"Where the court has refused a request to file a supplemental affidavit in attachment, and the record does not disclose what was proposed as supplemental, it must he presumed that the proposed supplemental matter was subject to valid objection, (p. 122).</p> <p>3. Pleadtng — Bill of Particulars — Timely Demand.</p> <p>The refusal of a demand for a more definite bill of particulars will not be ground for reversal where the bill of particulars objected to was itemized, and the record of the ease as a whole discloses plainly that the defendant was iii nowise prejudiced by being subjected to trial on the same. (p. 123).</p> <p>4. Evidence — Documentary Evidence — Proof of Authorship.</p> <p>A continuous course of letters not in the handwriting of the alleged illiterate sender, relating to matters proved as existing between him and the addressee, and so consistent with truthful relation thereto as to make it most improbable that anyone could have forged them, may be allowed to go to the jury for internal evidence of the source from which they came. (p. 123).</p> <p>•5. Same — Documents—Cardón Copies.</p> <p>Carbon copies of the originals of letters written and mailed are admissible in evidence, where their authenticity is proved and the addressee has been called on to produce the originals but fails to do so. (p. 125).</p> <p>■6. Partnership — Payment of Firm Dedt — Note of Partner — Burden of Proof.</p> <p>The individual note of a partner, given for an account due from the firm, does not presumably discharge the debt as to the firm. The party claiming that the note operates to discharge the firm debt has the burden of proving that the note was so intended and accepted, (p. 125).</p> <p>7. Account Stated — Admission of Correctness — Failure to Dispute■ — • Proof.</p> <p>The failure to dispute an account rendered, after the lapse of a reasonable time, amounts to an admission of its correctness. Un-controverted proof of such an admission is sufficient basis for recovery on the account without resorting to the original entries or other proof, (p. 126).</p>

<p>1. Corporations- — Regulation- of — Public Service Commission — Powers.</p> <p>The Public Service Commission has power to change any intrastate rate for service rendered the public, when to do so will conflict with no paramount law or constitutional inhibition, (p. 129).</p> <p>' 2. Same — Municipal Corporations — Delegation of Legislative Power— Regulation of Corporations — Presumption.</p> <p>The rate-making power is inherent in and belongs primarily to the legislature. The presumption is against exclusive delegation of the power. Unless there has been such delegation by clear and unmistakable terms, the power remains in the legislature, which can exercise the same when it sees fit. (p. 130).</p> <p>3. Waters and Water Courses — Bate-Fixing Power — Delegation.</p> <p>A grant of power by the legislature to a municipal corporation “to erect, or authorize or prohibit the erection of * * * * water works” does not vest the municipal corporation with power to fix water rates by franchise or agreement beyond the control of the legislature, (p. 131).</p> <p>4. Municipal Corporations — Bat&Fixing Power — Delegation.</p> <p>The general provision in a municipal charter authorizing the municipal corporation to “contract and be contracted with” does not delegate beyond the State’s control the power to fix public service rates, (p. 132).</p> <p>5. Same — Bate-Fixing Power — Legislative Control.</p> <p>Impliedly from general powers, a municipal corporation may have the power to contract in the matter of public service rates, as long as the legislature does not exercise its reserved power in that particular, but any contract so made is only permissive and is subject to future legislative action, (p. 132).</p> <p>6.. Same — Public Service Bates — Control by Public Service Commission.</p> <p>The Public Service Commission may change a public service rate-which was fixed for a municipality by franchise ordinance prior to the enactment of the law creating the commission, where authority to fix such rate was not expressly delegated to the municipal' corporation by the legislature, (p. 132).</p> <p>7. Constitutional Law — -Impairment of Contracts — Changes of Public Service Bates.</p> <p>Where, by franchise or ordinance, public service rates within a municipality have been fixed and accepted as between a public service corporation and the public, without express delegation of power in .such particular by the legislature to the municipality, a change of the rates by the Public Service Commission does not impair the obligation of a contract, (p. 133).</p>

<p>1. Contracts — Construction Contract — Extra Worlc.</p> <p>The stipulation, common to corporation agreements for work and labor, that contractors may be required to perform extra work connected with that described in the contract, at the price named in the agreement or fixed by an engineer, is limited, by the subject-matter of the contract and the intention of the parties, to such proportionally small amounts of extra work as may become necessary to the completion of the úndertaking contemplated by the parties when the contract was made; and work which does not fall within this limitation is new and different work, not covered by the agreement, and for which contractors may recover upon a quantum meruit, (p. 139).</p> <p>2. Same — Construction Contract — Alteration's.</p> <p>The provision in such contract that the corporation or its engineer may make any necessary or desirable alterations in the work and that the contractors shall receive the contract price, or a price fixed by the engineer, for work or materials required by the alterations, is limited, by the subject-matter and the intention of the parties when it was made, to such modifications of the work contemplated at the time of the making of the contract as do not radically change the nature or cost of the work or materials required. Eor all other work and materials required by the alterations the contractor may recover the reasonable value notwithstanding the agreement, (p. 139).</p> <p>3. Same — Construction Contract — Evidence.</p> <p>Evidence tending to prove part of the work done under such a contract was not within the contemplation of the parties to it, is admissible and justifies the giving of instructions founded upon it, even though it may not be sufficient to sustain an affirmative verdict, (p. 141).</p> <p>4. Appeal and Error — Verdict—Evidence.</p> <p>A verdict contrary to the decided weight and preponderance of the evidence will be set aside, notwithstanding the evidence upon which it stands was such as to warrant the giving of instructions based upon it. (p. 141).</p>

<p>1. Appeal and Error — Finding of Fact — Review.</p> <p>Findings of a trial court as to facts, upon issues submitted to it in lieu of a jury, upon a commissioner’s report and the evidence returned therewith, will be set aside, if unsustained by evidence or contrary to the decided weight and preponderance thereof, notwithstanding their agreement with the finding of .the commissioner, (p. 144).</p> <p>2. Same.</p> <p>But, if the evidence in such case is oral and conflicting and discloses nothing of decisive character, such findings will not be disturbed. (p. 144).</p>

<p>1. Injunction — Pleading-—Sufficiency.</p> <p>The bill for injunction in this case sufficiently alleges irreparable damages and inadequacy of the remedy at law, to render it good on demurrer, (p. 151).</p> <p>2. Easements — Eight of Way — Relocation.</p> <p>The general rule is that where there has been a general grant or reservation of an easement, or right of way over land, not definitely described, and with right given the grantee or the dominant owner to locate the same and he has once made the location, he cannot thereafter without the consent or agreement of the servient owner change or relocate such way. (p. 153).</p> <p>3. Same — Eight of Way — Relocation—Consiruelion of Contract.</p> <p>But as in other cases "contracts of this character are to be construed with reference to their nature and subject matter, and in the light of their objects and purposes, and also with reference to the subsequent acts and conduct of the parties in relation thereto; and where, as in this case, such grant is the right to lay a water pipe line from a water course over certain "reservations” to mining "operations” on the leased premises, and where after opening one mine and laying one pipe line by the lessee it is found impracticable, on account of mining conditions at that point, to successfully and profitably mine coal, and to perform the covenants of the lessee to use the best and most improved methods, and to pay the rents and royalties reserved, and it becomes necessary to abandon the old operation and locate a new mine and lay a new water line thereto across the reserved lands, and such new plant and water line have been so located and laid at great expense and used and operated for two years or more without interference by the lessor, equity will enjoin the lessor from thereafter interfering therewith, and from prosecuting suits for damages for the maintenance of such new water line. (p. 153).</p>

<p>1. Sufficiency of Declaration.</p> <p>The declaration in the case is good and the demurrer was properly overruled, (p. 157).</p> <p>2. Trial — Refusal of Instruction Covered.</p> <p>The instructions to the jury given are good and substantially cover the case made by the pleadings and proofs, and there was no error in rejecting those refused, (p. 157).</p> <p>3. Appeal and Error — Awarding New Trial — Mvidenee.</p> <p>In an action for personal injuries the amount of damages properly recoverable depends largely on whether the injuries are permanent or only temporary, and where on the trial of sueh an action the verdict for plaintiff is large and time enough has not elapsed so as to determine whether such injuries are in fact permanent, and the question 'of the permanency of the injuries is not very well developed by the evidence, and the evidence tends to show neglect by plaintiff of her injuries, retarding the healing processes, this court will not reverse the judgment of the trial court in awarding defendant a new trial, (p. 158).</p>

<p>1. Vendor and Purchaser — Suit to Enforce Vendor’s Lien — Necessary Parties — Tnistee in-Subsequent Deed of Trust.</p> <p>In a suit by a vendor to enforce Ms vendor’s lien, it is error to decree a sale of the land without the presence, as a party, of the trustee in a subsequent deed of trust, bolding the legal title, and the title of tbe purchaser at a judicial sale made in such defective suit is not protected by such erroneous -decree and confirmation to him. p. 165).</p> <p>2. Same — Enforcement of Vendor’s- Lien — Defective Suit — Deeree in Subsequent Suit.</p> <p>Where the vendor in such defective suit has purchased and had confirmed to him the land decreed to be sold, in a subsequent suit by him to perfect his title, foreclose the rights of the trust creditors, or resell the land to satisfy his lien, and impleading the trustee and trust creditors, the court should deeree a resale of the land, or so much thereof as is covered by the deed of trust, in the interest of vendor and trust creditors, who, proceeded against by publication, have not appeared to make defense, and it is error to attempt to-foreclose the rights of such trust creditors in any other way. (p. 165).</p> <p>3. Samis — Foreclosure of Vendor’s Lien — Reopening of Case — Rights of Absent Trust Creditors.</p> <p>Where the court in such second suit by a vendor decrees otherwise, absent trust creditors, proceeded against by publication, and not having previously appeared- or been served with process, may come in by petition under section 14, chapter 124, serial section 4750, Code 1913, and have the case re-opened, and be admitted to make defense, and by answer and prayer for relief have a proper decree of resale made so as to protect their interests, (p. 165).</p> <p>4. Appeal and Error — Scope of Review — Presentation Below- — Right to Complain of Error.</p> <p>But on appeal by such trust creditors so proceeded against, from a deeree denying them relief, parties defendant served with process or who appeared in the cause prior to the decrees of sale, confirmation and foreclosure, but made no defense, and who did not apply to the court below' for relief, pursuant to sections 5 and 6, of chapter 134, Code 1913, within the time limited thereby, will not be heard to complain of supposed errors in such prior decrees, affecting property not covered by such deed of trust, (p. 165).</p> <p>(Bobinson, Judge, dissenting.)</p>

<p>1. Corporations — Insolvency*—Preference Eights.</p> <p>The general creditors of a corporation whose property has been taken over by another one, in consideration of the assumption by it of the debts of the former, have an equitable right, on the insolvency of the latter, to preference in the distribution of the proceeds of the sale of the property derived from their original debtor, over the claims of the other general creditors of the purchasing corporation, and to have such property separately sold for the purpose of exact ascertainment of their rights, unless they have released the original debtor by complete novation of their debts of otherwise, (p. 174). n</p> <p>2. Same — Judgment—Insolvency—Eenewal and Surrender of Notes— Merger in Judgment.</p> <p>In such case, the renewal by the purchasing corporation of the notes of the other and surrender of the old notes by the creditors do not raise a presumption of satisfaction of the debts or discharge of the original debtor. Nor does an unsatisfied .judgment against the purchasing corporation, on the renewal notes, extinguish the original debts by merger, (p. 177).</p> <p>3. Same — Insolvency—Deed of Assignment.</p> <p>Nor does the execution by the purchasing corporation, of a deed of general assignment for the benefit of its creditors, extinguish such original debts, even though the owners thereof have not attacked its validity nor rejected the benefit of the provision made for them. (p. 178).</p> <p>4. Assignment foe Benefit of Creditors — Equitable Eights in Fraud Assigned — Eight to Enforce.</p> <p>In such ease, the creditors of the selling corporation may assert their equitable right to payment out of the property derived from it, under the deed of assignment, even though it fails to recognize such right, and also under a clause thereof providing, in general terms, for preference and priorities obtained under the laws of the state, prior t.o the date of the deed. (p. 179).</p> <p>5. Corporations — Actions Against — Necessary Parties.</p> <p>Such right may be asserted in a creditors’ suit against the purchasing corporation, and, if the other corporation has disposed of all of its property, dissolved and surrendered its charter, it is not a necessary party.to the suit. (p. 180).</p> <p>6. Same — Actions' Against — Decree of Sale — Validity.</p> <p>A decree of sale of the property involved in such a suit, which denying such right of preference, gives debts of the old and. new corporation án equal status and orders sale of-the property as a whole, is erroneous for denial of the right of preference and also for direction of sale, without proper adjustment of liens as to priority, (p. 181).</p> <p>7. Appeal and Ereor — Reversal in Paid.</p> <p>But, if sale had ben made under such decree, and confirmed without objection, before the appieal therefrom was taken, so much of it as directed the sale will not be reversed. On the contrary,-such part of. it and the decree of confirmation will be affirmed, and the decree under which the sale was made will be reversed only in so far as it denied the right of preference and modified the commissioner's report, in respect to the rank and dignity of the liens, to the prejudice of appellant, (p. 181).</p> <p>8. Judicial Sales — Title of Purchaser — Decree of Sale — Validity.</p> <p>Except- tinder peculiar and anomalous circumstances, such as nullity of the decree, purchase by a substantial party to the suit or . omission of persons as parties, interested in the property as lienors or otherwise, the title of a purchaser at a judicial sale is not affected by an error in the decree of sale. (p. 181).</p>

<p>1. Mandamus — Grounds—Enforcement of Contract.</p> <p>■Mandamus does not lie to enforce purely contractual obligations, (p.184).</p> <p>2. Same — Ground's—Enforcement of Private Contraed.</p> <p>A city, by ordinance, leases land owned by it to a private corporation for a wharfage business, and therein reserves the right within a period specified, to purchase all buildings and appliances constructed and used by the lessee in the business, the price thereof to be fixed by appraisers, two chosen by each of the contracting parties and the fifth by those thus selected. The city, within the time limited, elects to purchase, and, after due notice, appoints two appraisers to act on its behalf; but the lessee declines to make any selection of appraisers or to consummate the purchase.</p> <p>Seld: Mandamus is not the proper remedy to compel compliance by the lessee with the porvision of the ordinance and contract relating to such purchase by the city. (p. 184).</p>

<p>Appeal from Circuit Court, Putnam County.</p> <p>Bill by Demidoff P. Middleton against N. B. Bowyer and others. Prom a decree for plaintiff, defendant Jerome Dud-ding, executor, etc., appeals.</p>

<p>1. Judgment — Conclusiveness—Uncertainty in Decree.</p> <p>A decree sustaining a general demurrer to a bill in equity, stating no grounds of demurrer, reciting lack of equity in the bill, and dismissing it, before any answer has been filed or issue of fact is raised, is not conclusive in an action at law between the same parties upon a cause of action arising out of the facts stated in the bill. (p. 193).</p> <p>2. Same.</p> <p>Uncertainty in a judgment or decree, as to the ground upon which it was based, renders it inconclusive in subsequent litigation be- ' tween the same parties upon the same demand, (p. 193).</p> <p>3. Same — Construction>—Ambiguity.</p> <p>Ambiguity in a decree as to the ground of the decision authorizes resort to the record of the cause for solution thereof, (p. 193).</p> <p>4. Mines and Minerals — Mining Lease — Implied Surrender.</p> <p>An implied surrender of a mining lease does not arise from mere notice of intention on the part of the lessee not to pay further ' rentals and to give up the lease and his failure to make such payments. (p.195).</p> <p>5. Same — Mining Lease — Surrender by Corporation.</p> <p>An express surrender of such a lease by a corporation requires corporate action. (p.-196).</p> <p>6. Same — Mining Lease — Surrender—President of Corporation.</p> <p>The president of a corporation has no inherent power to surrender a mining lease belonging to it. (p. 196).</p> <p>7. Cancellation of Instruments — Mines and) Minerals — Mining Lease —Equitable Belief — Proceedings—Proof.</p> <p>Parol proof of a ground of relief from the obligation of a written contract must be clear and strong enough to establish it to the entire satisfaction of the court, (p.199).</p> <p>8. Same — Proceedings—Equitable Belief■ — Proof of Grounds.</p> <p>The plaintiff in such a ease must show the adoption and diligent pursuit of all reasonably practicable means to eliminate all doubt and uncertainty as to the existence of such ground, (p. 199).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by the Elk Hotel Company against the United Fuel Gas Company. From decree for defendant, plaintiff appeals.</p>

Bill by the American Bank & Trust Company, who sues, etc., against H. A. Douglass and others. From decree from defendants, plaintiff appeals.

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by J. A. Potts, Administrator, etc., against The Union Traction Company. Judgment for defendant and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Suit by Augustus Tyler against Hiram Teter and others. From decree for defendants, plaintiff appeals.</p>

<p>1. Injunction — Restraining Trespass — Defenses.</p> <p>An answer which, when reasonably construed, evinces reliance on an easement by prescription, fully sustained by proof, as a defense to a bill to restrain a trespass on the servient lands, will be deemed sufficient, though it uses terms importing both a public and a private easement, (p. 223).</p> <p>2. Easements — ■Adverse Use — Presumptions.</p> <p>Continuous and uninterrupted use of a private way for ten years or more, with knowledge of the owner of the land, is presumptive evidence, of claim of right to the easement and of the adverse character of the use; and the presumption will be deemed conclusive, unless it is shown that the use was permissive or that the owner protested and objected thereto, (p. 223).</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Suit by the City of Moundsville against E. H. Yost and others. From decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Tyler County.</p> <p>•Action by Cora Thaw and others against P. H. Gaffney. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error to Circuit Court, Lewis County.</p> <p>L. L. Andrews was convicted of trespass and brings error.</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by Alien G-. Swiger, administrator, against Charles M. Evans. Judgment for plaintiff, and defendant brings error.</p>

<p>Mines and Minerals — Gas Lease — Construction.</p> <p>A conveyance by deed of the oil and gas in and under a tract of land, in consideration of $200.00 in hand paid and upon condition for payment to the grantor of $3200.00, or reconveyance to him of the oil and gas, within 90 days after the completion of a well on the premises, completion of such well or payment of $214.00, within two years from the date of the deed, and payment of the stipulated purchase money or reconveyance after the completion of such well, subsequent to the expiration of the two year period, is conditional also upon the completion of such well within two years after the expiration of the two year period expressly provided in the deed; and the estate granted ipso facto ceases on the expiration of four years without completion of a well, even though the $214.00 payment was made as contemplated.</p>

<p>1. Executors and Administrators — Joint Contract — Action Against Personal Representative.</p> <p>The personal representative of one who was bound jointly with another, by a contract, may be charged and proceeded against, in respect of such contract, as if those bound with the decedent had been bound severally as well as jointly, (p. 242).</p> <p>2. Same — Action Agamst Administratrix.</p> <p>A declaration against a personal representative, on a joint or joint and several demand against the deceased person and another, may set forth the demand as if it had been a cause of action against the deceased person alone, taking no notice of the others; and the evidence of such joint, or joint and several, demand is admissible under it. (p. 242).</p> <p>3. Judgment — Default Judgment — Setting Aside.</p> <p>An office judgment actually entered up in court or a judgment entered after an inquiry of damages executed cannot be set aside at the term at which it was entered, except upon the tender of a plea and counter affidavit, denying liability in whole or in part. A mere motion to set aside for error apparent and other causes to be later assigned does not keep the judgment open until the next term for such plea and affidavit, '(p. 243).</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action of assumpsit by the First National Bank of Penns-boro against John Barker and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Sale op Liquors.</p> <p>The principal points, of error presented in this case, on an indictment for selling spirituous liquors, and “Bevo", a drink of like kind and nature, are fully covered and controlled by Slate v. Henry, 74 W. Va. 72, 81 S. E. 569, hereby re-affirmed, (p. 250).</p> <p>2. Indictment and Information — Sill of Particulars.</p> <p>On such an indictment the defendant may not as a matter of right demand of the State a bill of particulars. The defendant in such cases is fully protected by practice available on the trial. Slate v. Lewis, 69 W. Va. 472, distinguished, (p. 251).</p> <p>(Lynch, Judge, absent.)</p>

<p>1. Injunction — Quieting Title — Bill—Sufficiency of Demurrer — Title of Plaintiff.</p> <p>A bill to enjoin trespass, stay waste, and remove cloud, based mainly on tbe theory of undisputed title or title adjudicated by a decree in a suit brought by the commissioner of school lands to sell the land as waste or unappropriated land, to which defendants claiming- adversely or their predecessors in title were not parties, and with no pleading therein putting their rights in issue, is bad on demurrer, (p.253).</p> <p>2. Quieting Title — Bill—Sufficiency Against Demurrer — Possession by Plavtvliff.</p> <p>And such a bill is bad on demurrer also as one to remove cloud which fails to allege actual possession by plaintiff, (p. 254).</p> <p>3. Same — Jurisdiction.</p> <p>A court of equity has no jurisdiction to settle the title and boundary of lands between adverse claimants when plaintiff has no equity against defendants claiming adversely to him. (p.255).</p>

<p>■ Error to Circuit Court, Marshall County.</p> <p>Action by H. E. Henderson against John Hazlett and others. Judgment awarding plaintiff new trial, and defendants bring error.</p>

<p>1 Eminent Domain — Legislative Power■ — Public Service Corporations.</p> <p>In the exercise of its power of eminent domain the State, through its legislature, except as limited by the Constitution, may take or authorize a public service corporation to take, for publie purposes, any estate in land dictated by its sovereign will. (p. 265).</p> <p>2. Same — Condemnation of Land — Lights of Mailioay Company — Mimes and Minerals.</p> <p>By plain terms of the statute, sections 18 and 22, chapter 42, Code 1891, and, construed in the light of correct legal principles and the weight and authority of adjudged cases, a railway company in this State, by condemnation and compliance with all the provisions of the law, takes an estate in fee simple absolute in the land taken, including the oil and gas and other minerals in and under the same, (p. 265).</p> <p>3. Same — Legislative Grant — Meview by Courts.</p> <p>Whether the granting of such an estate in fee simple absolute to a railway company or other publie service corporation is good publie policy, is a legislative, not a judicial, question, and one with whiph the courts have nothing to do. (p. 269).</p> <p>4. Same — Land Condemned by Mailroadi Company — Interference Witts Might.</p> <p>Where a railway company has thus by condemnation become vested with an estate in fee simple absolute in the land taken for publie purposes, a citizen, though an abutting and former owner, has no right to interfere or oppose such railway company in the exereise of any rights acquired- in condemnation, (p. 270).</p>

<p>Appeal from Circuit Court, Ritchie County.</p> <p>• Action by William Wetzel against J. N. Jones and others. From judgment for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Ejectment by John W. Weekley against Lillie Weekley and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Sale — Evidence.</p> <p>A ease presenting a question of fact for the jury, and involving no new principle of law.</p>

<p>1. Railroads — Fires—Equipment With Spark Arresters — Duty.</p> <p>It is tlie duty of a railroad company to keep its locomotives equipped vs-itli spark arresters, so constructed as to give the best practicable protection against the escape of fire and sparks. See. 54, Cli. 62, serial section 3518, Code 1913. (p. 289).</p> <p>2. Same — Fires—Presumption of Negligence — Spark Arresters.</p> <p>Proof that a building, situate eighty-four feet from the railroad track, in the course of a strong wind'and in dry weather, was discovered to be on fire, on the side next to the railroad, within a few minutes after a train had. passedj raises a presumption of negligence which the railroad company must overcome by proving that its engine ivas equipped with a spark arrester so constructed as to give the best practicable protection against the escape of sparks, and that its servants in charge thereof were exercising due care in its operation. (p.290).</p> <p>3. Same — Fires—Negligence—Conflicting Evidence — Question for Jury.</p> <p>If the proof makes it reasonably certain that a fire originated from a spark escaping from a railroad engine and the testimony of expert witnesses tends to prove that the fire could not possibly have so originated if the spark arrester actually used had been in good condition, and other witnesses testify that they examined the spark arrester on the day of the fire, both before and after the fire, and fonnd it in good condition, the question of negligence involved is one of faet for jury determination from the conflicting evidence, (p. 290).</p> <p>4. Same — Fires—Care Required.</p> <p>The degree of care necessary in any case depends upon the danger to be avoided, and a railroad company is bound to exercise greater care to prevent the escape of fire in dry and windy weather, and when operating its engines in the proximity of buildings liable to be set on fire, than it is required to exercise when there is less danger from escaping sparks, (p. 291).</p> <p>5. Same — Fires—Evidence—Effect.</p> <p>The engineer's testimony that he was careful at the time the fire is alleged to have been started and that he did not notice that his engine was throwing out any more sparks than usual, does not prove that the fireman may not have been then negligent. (p. 291).</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by Haze Morgan against Meigs J. Bartlett. Decree 'for defendant, and complainant appeals.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>John W. Duffy was convicted of keeping a gaming house, and brings error.</p>

<p>1. Pbaudulent Conveyances — Property in Wife’s Neme — Liability for Nusband’s Debts — Presumption.</p> <p>Property in name of wife subject herein to debt of husband, (p. 304).</p> <p>2. Pleading — Set-Off and Counter Claim — Might to Set-Off — Assignment of Claim.</p> <p>Set-offs properly disallowed, (p. 304).</p> <p>3. Husband and Wife — Debt of Husband — Decree.</p> <p>Debt in this case not personal obligation of wife, and decree erroneous wherein it orders her to pay same jointly with husband. . (p.304).</p>

Application by the Lewis County Publishing Company for writ'of mandamus against the County Court of Lewis County. Judgment denying the writ, and the Publishing Company brings error.

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit by the People’s Bank of 'Wilkesbarre against the Columbia Collieries Company and others. Prom decree for complainant, defendants appeal.</p>

<p>1. .Judgment — Offioe Judgment — Sight to Enter — Proceeding by Mottion.</p> <p>No office judgment, such as is accorded in actions at common lav, by statutory modifications oí procedure therein, -can be obtained in a proceeding by motion for the recovery of money arising out of contract, under the provision therfor in see. 6, eh. 121, serial sec. 3726, of the Code, (p.322).</p> <p>2. Same — Office Judgment — Setting Aside — Counter Affidavit.</p> <p>The provisions of see. 46, cb. 125, serial sec. 4800, of the Code, recognizing such judgment and inhibiting the setting aside thereof, under given conditions, without the filing of a counter affidavit, do not apply to the summary and informal proceeding authorized by said see. 6 of ch. 121. (p.322).</p> <p>3. Statutes — Derogation of Common Law- — Construction and' Effect.</p> <p>Statutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used. Nothing can be added otherwise than- by necessary implication arising from such terms, (p.324).</p> <p>4. Same — Construction-—Terms Used.-</p> <p>The rule of construction, requiring effect to be given to all the terms used in a statute, if possible, is satisfied by assignment to them of a substantial, though limited, function or field of operation. It does not require allo-wance to them, of a scope of operation coextensive with their literal import, (p. 324).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by J. M. Crockett, administrator, etc., against the Black Wolf Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Habeas corpus by the State, on relotion of John D. CofBeld, against Fannie Bonar and others. Judgment for relator, and defendants bring error.</p>

<p>1. Deeds — Construction—Validity.</p> <p>An exceptioD of severable matter, expressed in sufficient terms and placed immediately after the habendum in a deed, is not repugnant, in the legal sense of the term, to the granting clause, and is valid, (p. 342).</p> <p>2. Same — Construction—S ed'd endwm — Fuñ ciion.</p> <p>The function or office of the reddendum in a deed is primary and it is equal, in dignity and virtue, to the premises. To ascertain the intent of the grantor and the effect of the deed,' both must be read together and permitted to operate, (p. 341).</p> <p>3. Same — Exception—Validity.</p> <p>The space or position in a deed usually accorded to the reddendum may be used for a clause excepting a severable thing from the premises or granting clause of the deed, and an exception so made is not repugnant to the grant, unless it is in irreconcilable conflict therewith, (p. 341).</p> <p>4. Same — Construction—Exception.</p> <p>An exception eliminates from the operation of the terms of the granting clause so much of what would otherwise pass by them as is embraced in the terms of the exception, and the deed, as a whole, passes what is embraced in the terms of the grant less what is included1 in the exception, (p. 341).</p> <p>5. Same — Exception of Minerals — Validity:.</p> <p>An expection of the minerals in a tract of land, granted in general terms, by the premises of the deed, made by a clause in space usually occupied by the reddendum, is valid, (p. 343).</p> <p>6. Mines and Minerals — Exception of Minerals in Deed — Construction.</p> <p>The following terms in such a deed: "Excepting therein all coal or other minerals or mineral waters which are to. be held in common by all the heirs ’ ’ of the grantor, sufficiently manifest intent, to except the minerals in the land from the operation of the deed. (p. 343).'</p> <p>7. Deeds — “Exception.”</p> <p>A reservation in a deed of proper subject matter of an exception is, in law, an exception, though incapable of operation as a reservation, since it expresses unequivocal intent not to part with the thing reseived. (p.343).</p> <p>8. Same — Exception—Construction—Validity.</p> <p>• An abortive attempt, in a deed in which an exception is made, to grant the subject -matter of the exception, neither negatives the intent to except nor invalidates the exception, (p. 344).</p> <p>9. Same — Operative Words — Necessity.</p> <p>Operative words manifesting intent to transfer the property are absolutely essential to the conveyance of title. The intent must be disclosed by the words of the deed not the mere acts of the parties, (p. 244).</p>

<p>1. Pleading — Sufficiency of Complaint — Misialces in Spellvivg.</p> <p>A declaration charging negligence in providing a defective steam guage, instead of steam gauge, is not had on demurrer for the had spelling of the word "gauge.” (p.347).</p> <p>2. Trial — Death of Servant — Instructions—Assuming Controverted Fact.</p> <p>The instructions in this case given at the instance of plaintiff and the substance of which are noted in the opinion propound correct legal propositions, applicable to the case made by the evidence, and were properly given to the jury. (p. 348).</p> <p>3. Same — Death of Servant — Defective Appliances — Refusal of Instruction — Assumption of Controverted Fact.</p> <p>Defendant’s instruction number 15, was properly rejected for assuming the faet, not supported by the evidence, that deceased voluntarily went to the boiler, which exploded, causing his death. Other instructions given fully covered the question of fellow serv-antey, and proximate cause of the injury introduced into this instruction. (p.351).</p> <p>4. Master and Servant — Death of Servant — Defective Appliances— Sufficiency of Evidence.</p> <p>The verdict was fully supported by the evidence, and there was no error in denying defendant’s motion to set aside the verdict and award it a new trial, (p. 351).</p> <p>5. Death — Damages—Excessive Recovery.</p> <p>The verdict, $8,000.00, damages awarded for the death of deceased, an unmarried son of the beneficiary, was not excessive, (p.353).</p>

<p>Error to Circuit Court, Pleasants County.</p> <p>Mandamus by the Eureka Pipe Line Company against B. P. Riggs, Sheriff, etc. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Joe Frank against the Monongaliela Valley Traction Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Original application in mandamus by Joseph E. Doran against W. W. Whyte, Clerk of the County Court of McDowell County.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by Benjamin J. Jaggie, administrator, etc., against the Davis Colliery Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Cloyd H. Duncan against Jacob Doll & Sons. Judgment for plaintiff, and defendant brings error. *</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Edward Voeekler against Stroehmann’s Vienna Bakery. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Malinda B. Colebank against tbe Standard Garage Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Equity — Deoree—Conformity to Proof.</p> <p>In a lien creditors' suit under the provisions of sec. 7, eh. 139, Code, serial sec. 5099, claimants of liens, who have not asserted their claims by pleadings of any kind, whether formal parties or not, must, in order to have their claims allowed and provided for in the decree, appear and prove them. (p. 398).</p> <p>2. Same — Decree—Conformity to Pleaüi/ng.</p> <p>On a hill taken for confessed in such a suit, provision in the decree for a lien not asserted or claimed by any pleading nor by appearance and proof is an error apparent on the face of the record, though such lien was reported by tlie commissioner to whom the cause was referred. (p.396).</p> <p>3. Creditor’s Suit — Allowance of Lien — Decree.</p> <p>If a lien in such suit has not been claimed by any pleading in the cause, the report of the commissioner should show the claimant or holder thereof appeared and proved it. (p. 399).</p> <p>4. Mortgages — Foreclosure—Evidence.</p> <p>Full proof of a trust deed or mortgage lien requires production of the note secured, if there was one, or an excuse for its non-production. (p.399).</p> <p>5. Equity — Opening of Decree.</p> <p>A motion by the debtor, under see. 5, eh. 134, Code, serial see. 4979, to reverse a decree on a bill taken for confessed, for error in the allowance of a lien not claimed, which, tacitly admitting the lien, claims a credit oh the debt by reason of a payment thereon, opens the decree, as to such lien, only so far as to let in the credit, (p. 400).</p> <p>. 6. Appeal and Error — Decision on Reversal — Enforcement of Origimal Decree — Creditor’s Suit.</p> <p>On reversal of the decree allowing such credit, on an appeal, the appellate court will affirm the original decree, (p. 401).</p> <p>7. Mortgages — Payment—Check as Evidence — Probative Effect.</p> <p>A check of the debtor, payable to the lien creditor, dated long before anything was due on the note secured by the deed of trust, bearing a memorandum indicating payment on account of some other transaction, payable to the creditor and showing payment of the amount thereof to him, is insufficient to establish right to a credit on such note. (p. 401).</p>

Bill in the nature of, a bill of interpleader by the Hope Natural Gas Company against Henry D. Shriver and others, for construction of a will. Prom a decree for Martha Virginia Taylor, Henry D. Shriver and others appealed.

<p>Error to Circuit Court, Monongalia County.</p> <p>Action by the Buckhannon & Northern Railroad Company against the Great Scott Coal & Coke Company and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Charles A. Prichard against the Freeland Oil Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Mandamus by Val Fruth and others against Board of Affairs of the City of Charleston and others.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by J. M. Crockett, administrator, etc., against the Keystone Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

Suit by C. P. Morrison and others, partners, etc., against Minerva Leach, executrix, etc., and others. Prom the decrees, defendant Parkersburg National Bank appeals.

Mandamus by the State at the relation of Thomas GK Ault-man, against C. F. Ice, president, etc., and another. Judgment for relator, and defendants bring error.

<p>1. Corporations — Sale of Sloah — Setting Aside — Fraud.</p> <p>Equity has jurisdiction to cancel a sale of shares of stock in a corporation, fraudulently procured, (p.483).</p> <p>2. Same — Sale of Stock — Rescission—Grounds■—Representation of Fact.</p> <p>Ealse statements to the purchaser, by the seller of such stock, that he had1 paid in full therefor, and that the corporation had earned $15,000 net in the year preceding, which statements the purchaser believed to be true, and was thereby induced to buy the stock, is good ground for rescinding the sale. Such statements are repre-sensations of facts, and not of mere opinions, (p.484).</p> <p>(Robinson and Lynch, Judges, dissenting.)</p>

Suit by C. L. Williams, receiver, etc., against the S. M. Smith Insurance Agency and others. From the decree, plaintiff and the First National Bank of Sutton separately appeal.

<p>Error to Circuit Court, Nicholas County.</p> <p>Action by James 6. Neil, administrator, etc., against the "West Virginia Timber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Harmless Error — Overruling of Demurrer.</p> <p>Where a demurrer to faulty counts in a declaration has been overruled, the appellate court will not reverse for the error if all the evidence adduced for the plaintiff was admissible under a good count, (p. 511).</p> <p>2. Pleading — D eclaration — Jwrisdiction.</p> <p>By the statute, Code 1913, eh. 125, sec. 33, it is not necessary in any action to aver that the cause of action is within the jurisdiction of the-court, (p. 511).</p> <p>3. Witnesses — Gross Examination — Impeachment—Contradictory-Statement.</p> <p>Refusal on the cross-examination of a witness to admit an affidavit formerly made by him, tendered for the purpose of contradiction, is not error when the affidavit is not inconsistent with the testimony of the witness, (p. 511).</p> <p>4. Account Stated — Rebuttable Admission — Account Rendered1 — Failure to Object.</p> <p>Failure to object within a reasonable time to an account rendered amounts.only to a rebuttable admission, not to an estoppel, (p. 512).</p> <p>5. Trial — Misleading Instruction — Refusal. ,</p> <p>An instruction tending to mislead the jury from proper issues in the case should be refused, (p. 512).</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by Cecil B. Highland, receiver, against Emma M. Ice and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by James B. Lacy and others against C. D. Greenlee and others. Judgment for defendants,- and plaintiffs bring error.</p>

<p>1. Divorce — Defense—Reconciliation—Offer.</p> <p>To be effectual, an offer by husband or wife to reconcile dif- . ferenees resulting in desertion, and resume cohabitation, must be in good faith, conciliatory in form and substance, and not merely color-able grounds for relief by a divorce proceeding, (p. 522).</p> <p>2. Same — Offer of Reconciliation — Decree—Appeal.</p> <p>Whether proposals so made are genuine and sincere, and in form and substance conciliatory, are matters of fact, as to which a decree, denying relief, is entitled to great weight on appeal, (p. 523).</p>

J. B. Ramage and another were convicted of lewdly and lasciviously associating and cohabiting together, and bring error.

<p>1. Justices op the Peace — Judgment—Vacation—Appeal Bond.</p> <p>The judgment of a justice is not vacated nor an appeal perfected by the mere production or tender of an appeal bond. While application and tender of a good bond gives absolute right of appeal, there must be action by the justice approving the bond and allowing the appeal; or on his neglect or refusal to act favorably thereon within ten days from the date of the judgment, such appeal must be applied for and allowed by the circuit court or the judge thereof in vacation, within ninety days from the date of such judgment, (p. 531).</p> <p>2. Same — Judgment—Appeal—Execution.</p> <p>Without appeal so perfected the judgment of the justice is not vacated but remains in full force, and a motion to quash an execution thereon, the proper remedy when the judgment has been vacated by perfection of an appeal, is properly overruled, (p.533).</p>

<p>1. Master and Servant — Injury to Servant■ — Declaration—Sufficiency Agamst Derrmrrer — Safe-QuarSing Machinery,</p> <p>A declaration for personal 'injuries sustained, due to the alleged negligence of the master to comply with the provisions- of section 59, chapter 15H, Code 1918, requiring machinery, etc., to be'safely and securely guarded1 when possible, or if not possible that notice thereof be posted, etc., which fails to allege that plaintiff's employment required him to go upon the particular machine where he sustained his injuries while the same was in motion; and that it was possible to so safely and securely guard the shafts, cogwheels and other parts, which caused his injuries, or that no notice of the dangers there-from was conspicuously posted as provided' by the statute, is bad on demurrer. (p. 535).</p> <p>2. Same — Injury to Servant — Declaration—Sufficiency• Against Demurrer.</p> <p>A count in sueh declaration charging negligence generally of the master in failing to adopt and promulgate proper rules for the conduct of his business, and to provide for the safety of his servants, and whieh avers specially the negligence of the master in failing to promulgate proper rules for stopping and starting of machinery, and forbidding and prohibiting the sudden starting thereof while belts were being removed, repaired and replaced thereon, is good on demurrer, and such demurrer should be overruled, (p.535).</p> <p>3. Same — Injury' to Servant — Negligence of Fellow Servant — Liability of Master.</p> <p>The principles of non-liability of master for injuries sustained by ' the negligence of a fellow servant, enunciated in Jaclcson v. Norfolk # W. B. Co., 43 W. Ya. 380, and subsequent cases, re-affirmed and applied to the facts presented by the record of this case. (p. 537).</p> <p>(Robinson, President, dissenting in part.)</p>

<p>1. Master and Servant — Death of Servant — Workmens’ Compensation Act — Public Service Commission — Supervision of Court.</p> <p>Under its supervisory power over the Public Service Commission, respecting its administration of the Workmen’s Compensation Act, this court takes cognizance of questions of law only. (p. 544).</p> <p>2. Same — Workmen’s Compensation Act — Proceedings of Public Service Cornmission — Review bp Court.</p> <p>In the absence of conflict in the evidence adduced to show a claimant’s right to participation in the Workmen’s Compensation Fund, the Commission is regarded, in this court, as a demurrant to the evidence, and', if the evidence would sustain a verdict of a jury in favor of the claimant, the claim is regarded as sufficiently proved, (p. 544).</p> <p>3. Same — Workmen’s Compensation Act — Public Service Commission— Procedure — Evidence.</p> <p>It is the duty Of the Commission, under such circumstances^ to give the claimant the benefit of inferences arising in his favor from the facts proved, in the absence Of direct evidence, (p. 544).</p> <p>4. Same — Injury- tp Servant — Workmen’s Compensation Act — “Accident or Untoward Event.’’</p> <p>A rupture caused by a strain while at work is an accident or untoward event, arising in the course of employment, and eompen- . sable under the Workmen’s Compensation Act. (p.544).</p> <p>5. Same — Injury to Servant — Workmen’s Compensation Act — Sufficiency of Evidence.</p> <p>Proof of apparent previous good health, a heavy and unusual lift in the cotírse of work, discovery of rupture on the second day thereafter-, death from surgical operation for relief thereof and opinion of the operating surgeon that the rupture was caused by the lifting, is sufficient to establish accidental injury in the course of employment, within the meaning of said act. (p. 548).</p> <p>(Robinson, President, dissenting.)</p>

<p>Error to Circuit Court; Ohio County.</p> <p>Action by the West Virginia Pulp & Paper Company against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Account — Accounting■—Right—Equity Jurisdiction.</p> <p>Mere conflict in claim to oil royalty floes not assure equity jurisdiction. Where the plaintiff has full, complete and adequate remedy at law -and no peculiar feature of the case comes within the province of a court of equity, he must proceed in the law forum.</p>

<p>Original petition for writ of prohibition by the Chesapeake & Ohio Railway Company against T. C. Rogers, Justice, and another.</p>

<p>Appeal from Circuit Court, Lincoln County.</p> <p>Suit by the Horse Creek Coal Land Company against Joseph C. Trees and others. From decree for plaintiff, defendants appeal.</p>

<p>1. Criminal Law — Action. Tried. ~by Court — Dem/wrrer to Evidence.</p> <p>On writ of error to a judgment rendered in a ease tried by the court in lieu of a jury, this court will consider the case as if upon a demurrer to the evidence, regarding the plaintiff in error as demur-rant. (p.565).</p> <p>2. Intoxicating Liquors — Wrongful Sale — Eecewmg Orders.</p> <p>One who, without a state license to sell spirituous liquors, prior to July 1, 1914, received orders therefor, even though he did not solicit them, is guilty of violating clause (e), section 1, chapter 32, Code 1913. (p.565).</p>

<p>Fraudulent Conveyances — Secret Trusts — Sight to Enforce — Fraud of Creditors.</p> <p>Upon-a hill in equity brought by a father against Ms son to procure legal title to property which the father alleges he bought and paid- for with his own means, and caused to be conveyed- to his son, by deed apparently absolute, but upon seeret trust that his son would thereafter convey it to Mm, whenever requested by him so to do, equity will refuse relief, if it appears that the purpose of the father, in such plan, was to hinder and delay his creditors, then existing, in the collection of their debts-. In such case it is immaterial whether the son had actual knowledge of the father’s fraudulent intent or not, or whether the alleged trust was express or implied.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Suit by W. Bateson & Co. against the Baldwin Forging & Tool Company and others. From a decree for plaintiffs, •defendants appeal.</p>

Petition by E. S. Dent for a writ of prohibition against Honorable Walter E. MoDougle, Judge of the Circuit Court of Wirt County, and another, to restrain him from proceeding with the trial of a bastardy proceeding.

<p>Error to Circuit Court, Cabell County.</p> <p>E. E. Miller was convicted of voluntary manslaughter, and? brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Allen Hatfield against the Cabell County Court. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Affidavits — Verificationr—,Sufficiency—Office Judgment.</p> <p>An affidavit filed with a declaration, pursuant to and in compliance with §46, ch. 125, Code, bearing the caption, “State of West Virginia, Monroe County, towit, in the Circuit Court thereof— G. H. Lewis, plaintiff, vs. J. B. Blankenship, defendant”; signed, “G. H. Lewis, Plaintiff”; and concluding with the words, “Taken, sworn to and subscribed to before me this 14th day of September, 1912 — C. H. Doss, Justice of the Peace, Sweet Springs District”, sufficiently shows the venue of the authentication thereof. (p. 599).</p> <p>2. Appeal and Error — Exception—Waiver.</p> <p>Where, in assumpsit on an account, plaintiff has filed' with his declaration the affidavit prescribed by §46, eb. 125, Code, he may, after the overruling of his objection to the filing of any plea unaccompanied by the counter affidavit by that section made an essential prerequisite therefor, and of his motion to strike such plea from the file, duly excepted to, join issue and proceed to trial thereon, without waiving the benefit of the exception saved to him upon the record, (p. 601).</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by Harlan P. Locke and others against Robert W. Russell and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Electricity — Personal Injuries — Ownership of Wires■ — Sufficiency of Evidence.</p> <p>Owneiship of an electric light and power wire, supplying current to a pumping station situate outside of the corporate limits of a town and used in supplying water to the inhabitants thereof, is reasonably to be inferred from proof of owmership of the power plant and electric lighting system within the town, and from proof that all the wires are supplied with electricity from the same power plant, (p. 609).</p> <p>2. Same — Injuries io Traveler — Liability—Highways—Ownership of Wires.</p> <p>An electric company is liable to a traveler on the highway for an injury received by coming in contact with a broten telephone wire, not owned or controlled by it, but which it has suffered to become charged with a dangerous current of electricity from its own wire by falling across it in the highway, and so remaining for an unreasonable length of time. (p. 612).</p> <p>3. Same — Negligence—Care Required — “Reasonable Care.’’</p> <p>Reasonable care and negligence are relative terms, and the degree of care required in a given case must be commensurate with the dangers to be avoided. In handling so dangerous an agency as electricity a high degree of care is not unreasonable, (p. 612).</p>

<p>1. Witnesses — Competency—Statements bp Persons Since Deceased.</p> <p>In an action against a street railway company for personal injury, caused by the negligence of the conductor, plaintiff is a. competent witness to prove oral admissions by the deceased officer and manager of the railway company, tending to prove that he ¡mew of the conductor’s careless habits and his ineompeteney. (p. 615).</p> <p>2. Same — Competency—Cowoersations.</p> <p>One who hears a conversation is as competent to testify concerning it as the person with whom it was had. The testimony of such witness is primary evidence, (p. 615). •</p> <p>3. Principal and Agent — Knowledge of Agent — Notice to Principal — • Master and Servant.</p> <p>Knowledge by an agent respecting the ineompeteney of employees over whom he has charge for the employer, is knowledge of the employer. (p.617).</p> <p>4. Master and Servant — Injury to Third Person — Incompetent Fellow Servant — Liability of Master.</p> <p>If a master knowingly employs or retains a careless and incompetent servant, he thereby impliedly authorizes or ratifies his negligent acts, committed in the course of his employment, and, if the servant’s negligence is wanton and wilful or malicious, the master is liable for exemplary or punitive damages, (p. 617).</p> <p>5. Same.</p> <p>A pedestrian in the street, who without fault on his part, is injured by the conductor’s negligently throwing a heavy tool off the car onto the pavement and striking him, is entitled to recover of the street railway company compensatory damages, and if the conductor’s negligence was wanton and wilful or malicious, and was authorized or ratified by the company, either expressly or impliedly, he is entitled also to exemplary damages, (p. 617).</p> <p>6. Husband and Wife — Personal Injuries■ — Recovery by Married Woman — Right—Amount.</p> <p>The earnings of a married woman are her separate estate, and, ■although she is living with her husband, she may sue alone for a personal injury, and is entitled to recover for loss of time and money expended in effecting a cure, if she avers and proves that her time, or a material part of it, was spent in earning' money for herself, (p. 619).</p> <p>7. Master and Servant — Injuries to Third Person — Negligence of Servant — Scope of Employment.</p> <p>A street car conductor in charge of a passenger car, in assisting to unload heavy tools, such as shovels, picks and pipe tongs, which he had permitted to be carried on his ear by passengers thereon, is acting for the railway company, and within the scope of his employment, it not being shown that the rules of the company forbade the carrying of such tools on passenger cars. (p. 620).</p> <p>8. Trial — Refusal of Instructions — Pleading and Proof.</p> <p>Where there is nothing in the pleadings or proof to indicate that plaintiff claimed rights as a passenger, it is not prejudicial error to refuse an instruction telling the jury that he had ceased to be a passenger before the injury, (p. 621).</p> <p>9. Torts — Joint Tort Feasors — Liability.</p> <p>Joint tort feasors are jointly and severally liable, and if sued ■ jointly the jury may find any one, or all of them, guilty, according to the proof, (p. 622).</p> <p>10.Trial — Refusal of Instructions — Scope of Instructions Given.</p> <p>It is not prejudicial error to refuse an instruction telling the jury to find for the defendant, if they believe the injury was accidental, when it appears they have been properly instructed respecting the only ground of plaintiff’s right to recover, (p. 622).</p>

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

<p>Error to Circuit Court, Cabell County.</p> <p>P. J. DeBerry was convicted of larceny, and brings error.</p>

<p>1. Insurance — Fire Folicy — Cancellation—Burden of Proof.</p> <p>In an action on a policy of fire insurance, if the defense be that within the five days after notice to the assured of defendant’s purpose to cancel the policy and calling for its surrender, the poliey was in fact surrendered, and with assured’s consent and agreement cancelled, the burden of proof of establishing such defense rests upon defendant, (p.643).</p> <p>2. Same — Eire Policy■ — Cancellation—Sufficiency of Evidence.</p> <p>A case in which such burden was fully borne by the defendant, justifying reversal of the judgment on the adverse verdict of the jury in favor of plaintiff, (p. 644).</p> <p>3. New TUial — Verdict—Weight of Evidence.</p> <p>Where in such case the decided weight and preponderance of the evidence, not depending solely on conflicting oral evidence, but supported by documentary proof, and uncontroverted facts, greatly preponderates in favor of defendant, such adverse verdict should be set aside and a new trial award'ed. (p. 644).</p> <p>4. Insurance — Cancellation—N oiice — Waiver—Consideration.</p> <p>When in such ease it clearly appears by the preponderance of the evidence that the assured at the time he surrendered his poliey for cancellation had knowledge of his right to five days notice, but within that time surrendered the poliey and consented and agreed to its cancellation, and takes credit for the unearned premium as of the day of sueh surrender and cancellation, such waiver of his right is supported by sufficient consideration, and he cannot thereafter assert any rights under the policy, or recover thereon for a loss occurring within the five days, (p.645).</p> <p>5. Appeal and Error — 'Harmless Error — Limiting Crosst-Examinaiion-,</p> <p>Error, if any, in denying proper cross-examination, will not be regarded here, when it appears, as in this ease, that such error was fully cured by proper crossLexamination of the witness permitted on his subsequent recall, (p. 647).</p>

<p>Error to Circuit Court, Jackson County.</p> <p>A. E. Kocb was convicted of incest, and brings error.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by W. M. Martin, administrator, etc., against the Carter Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bailment — Duty of Bailee — Protection of Property — “Ordinary Care. ’ ’</p> <p>A bailee for hire must exercise ordinary care for the protection of the property in his custody, that is, such care as prudent men would ordinarily use toward their own under similar circumstances, (p. 660).</p> <p>2. Same — Action Against Bailee — Ordinary Care — Question for Jury.</p> <p>In an action for damages based on the failure of a bailee to use ordinary care, the question whether care was used is usually one for the jury under all the circumstances of the case, (p.661).</p> <p>3. Same — Loss of Goods — Proximate Cause.</p> <p>Where goods in bailment are lost in an unprecedented flood, if the exercise of ordinary care on the part of the bailee would have saved them, not the act of God but a failure to use such care is the1 proximate cause of the loss. (p. 662).</p> <p>4. Trial — Instructions—Cure of Brror.</p> <p>Incompleteness in one instruction may be cured by another, where they are not inconsistent with each other, (p. 663) .</p> <p>5. Same — Instructions—Irrelevant Matter.</p> <p>Irrelevant matter in an instruction, not of the character to mislead, will not vitiate the instruction if it is otherwise sufficient, (p. 664).</p> <p>6. Same — Instructions—Repetition.</p> <p>Where instructions already given cover the entire ease and properly submit it to the jury, the court may refuse other proposed instructions which would not further aid the jury in reaching a verdict, (p. 664).</p> <p>7. Bailment — Duty of Bailee — Care Required.</p> <p>The eare which a bailee takes of his own property is not a standard of his legal duty toward, the property of the bailor, (p. 665).</p> <p>8. Same — Loss of Property — Damages.</p> <p>.Where the property has been totally lost by the negligence of the bailee, a proper measure of the damages is the fair value of the property to the bailor at the time and place of the loss. (p. 665).</p>

<p>Error to' Circuit Court, McDowell County.</p> <p>Action by Lon L. Dillon against the United States Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Presentation of Evidence — Indemnity Against Loss.</p> <p>In an action against an electric company for personal injury, caused by its alleged negligence in the maintenance and operation of one of its wires, it is prejudicial error to admit evidence, over defendant’s objection, to prove that it carried insurance indemnifying it against loss by accident, for the purpose of establishing negligence. (p.678).</p> <p>2. Negligence — Evidence—Indemnity—Cause of Injury■ — Ownership of Agency.</p> <p>Nor is such evidence admissible to prove ownership and control of the particular agency that caused the injury, unless it appears that the contract of indemnity embraces accidents caused by such particular agency. (p.678).</p> <p>3. Appeal and Error — -Presentation for Beview — Admission of Evidence — Exception.</p> <p>An exception to the admission of improper evidence, appearing in a general bill of exceptions embodying the evidence and specially pointed out in brief, is sufficient to entitle plaintiff in error to consideration thereof by this court, if it appears that such error was called to the attention of the lower court, by stating it as a ground of a motion for a new trial. An exception thus saved, and pointed out, need not be embodied in a special bill of exceptions, (p. 683).</p> <p>4. Evidence — Materiality to Issues — Exclusion.</p> <p>It is proper to reject evidence having no probative value in the' determination of any of the material issues, (p. 683).</p> <p>5. Negligence — Contributory Negligence- — Conflicting Evidence — Questions for Jury.</p> <p>Where the testimony respecting defendant’s alleged negligence is conflicting, and the faets and circumstances relied on to establish plaintiff’s contributory negligence are such that the minds of reasonable men would not agree thereon, the negligence of both are mixed questions of law and fact for jury determination, and it must determine which is the proximate cause, (p. 683).</p> <p>6. Damages — Variance—Pleading and Proof.</p> <p>Proof that defendant was injured by some other part of his body coming in contact with a charged eleetrie wire, when he had averred ^ that he was injured by its striking his foot, is an immaterial variation. (p.684).</p> <p>7. Electricity — Negligence—Charged) Telephone Wires — Eiglvways.</p> <p>It is negligence for an electric company owning and operating a highly charged electric wire, to suffer a broken telephone wire, even though not owned by it, to fall across its electric wire upon the highway, and remain there as a menace to the public for an unreasonable time. (p. 685).</p>

<p>1. Master and Servant — Injury to Servant — Complaint—Negligence —Employment of Infant.</p> <p>A count in a declaration for personal injuries based' on negligence in employing a boy under fourteen years of age in a coal mine, inhibited by statute, is not bad on demurrer, for failure to allege in terms that such illegal employment was the natural and proximate cause of'plaintiff's injuries. It is prima facie negligence to so employ an infant within the prohibited age. (p. 688).</p> <p>2. Evidence — Admissibility—X-Ray Radiograph.</p> <p>X-ray radiograph or shadow pictures are admissible in evidence when shown to have been made with trustworthy instruments, and properly taken, in connection with the evidence of witnesses expert in the use of sueh instruments and skilled in making, reading and interpreting such pictures, (p.689).</p> <p>3. Damages — Personal Injuries — Instructions — Decreased Earning Capacity. .</p> <p>Plaintiff's instruction to the jury, number 1, on the theory of permanent injuries, bodily pain and suffering endured by him, and likely to be endured, and disfigurement, and on the theory of decreased earning capacity due to sueh permanent injuries, is not bad for lack of evidence justifying the same, nor as authorizing the jury to include in their verdict damages for decreased earning capacity during .plaintiff’s minority, said' instruction in terms limiting all damages on account of decreased earning capacity to a time after plaintiff shall Have reached his majority, (p. 690).</p> <p>4. Trial — Instructions—Ignoring Issues.</p> <p>On the trial of sueh an action an instruction to the jury proposed by defendant, ignoring plaintiff’s theory, supported by sufficient evidence, that at the time of his employment and injuries he was an infant under fourteen years, and his employment illegal and negligent, is properly rejected, (p. 691).</p> <p>5. Master and Servant — Injury to Infant Employe — Contributory Negligence.</p> <p>To sustain the defense of contributory negligence in such cases, it must be shown not only that the infant employee had capacity to understand and appreciate his instructions and warning against the dangers incident to his unlawful employment, but that he in fact did understand them, and that his supposed negligent act was not sueli as the statute was intended to provide against, but also that he was possessed of such unusual wisdom and sagaeity as to take him out of the class of youths under fourteen years which the statute was intended to protect; and instructions proposed by defendant in this case propounding a different rule of liability were properly rejected, (p. 691).</p> <p>6. Trial — Special Interrogatories.</p> <p>So also special interrogatories proposed by defendant in this ease, assuming certain facts, but not comprehending all other faets necessary to constitute a complete defense of contributory negligence, were properly denied, (p. 692).</p> <p>7. Evidence — Date of Birth — Account Bisóles — Testimony of Physician.</p> <p>On the trial of such action the account books or other books of a practicing physician or surgeon, containing entries regularly made in due course of business, and who attended the mother at the birth of her child, and the oral evidence of such practitioner verifying sueh record, are legal and competent evidence to go to the jury on the question of the date of the birth of such infant employee, (p. 692).</p> <p>8.New Trial — Grounds—Newly Discovered Bvidence.</p> <p>The discovery of such legal and competent evidence after the trial of this case, considered in connection with other evidence offered on the motion of defendant for a new trial, and considered also in connection with the evidence adduced on the trial, and the proof of due and reasonable diligence on the part of defendant to discover such new evidence, as shown by the record, constituted good ground for setting aside the verdict and awarding defendant a new trial, (p.694).</p>

<p>1. Railroads — Person on, Traelc — Negligence—Question for Jury.</p> <p>Whether it is negligence on the part of a railroad company, to run an engine or train of cars backwards, through a village, without some person on the tender or foremost car, to keep a lookout for persons who may happen to be on the track and take precautions against injury to them, generally depends upon the circumstances of the particular case, and is a question for jury determination, (p. 698).</p> <p>2. Negligence — Duty—Abnormal Conditions.</p> <p>A general rule of duty, applicable under normal conditions, does not preclude the existence of exceptional ones, justified by abnormal conditions. All grow out of the same general principle and are consistent in the large sense of the term. (p. 698).</p> <p>3. Evidence — Documentary Evidence — Mays.</p> <p>In the trial of a negligence case, it is not error to admit, as evidence, with a proper caution by the court, as to its purpose, a map of the place of the injury, showing approximately the locations and the relations of the various objects and places to one another and the material distances in figures, obtained by actual measurement, but not susceptible of verification by scaling the map. (p. 699).</p>

<p>1. Contracts — Construction Contract — Alternative Bights of Contractor — Election.</p> <p>A contractor having the alternative right, under his sub-contract, in ease of default in the prosecution of the work thereunder, to take full and complete possession of the work and the sub-contractor's tools and machinery and use the latter in the completion of the work, -at the expense of the sub-contractor, after having given notice in -writing of his intention so to d'o, or to put on additional men, leaving the work in the hands of his sub-contractor, does not exercise the former right by the mere putting on of additional men, slight alteration of the method of work, without objection from the subcontractor, and payment of their wages directly to the men after having previously found it necessary to guarantee their wages by reason of delay in payment by the sub-contractor, at the same time requesting co-operation on the part of the sub-contractor. His procedure is the exercise of the latter right, notwithstanding a reference to the other in a telegram giving notice thereof, (p. 706).</p> <p>2. Same — Construction Contract — Abandonment by Bub-Contractor— Completion by Contractor.</p> <p>Abandonment of the work by the sub-contractor, after such procedure, authorizes the principal contractor to take full possession of the work, machinery, tools and appliances and use the latter in the completion of the work, for and on account of the sub-contractor, crediting him with the contrast prices of the work, as it is performed, and charging him with the cost thereof. Such use of his machinery and appliances is not a conversion thereof, (p. 706).</p> <p>3. Bailment — Construction Contract — Mental of Appliances — Warranty ■ — Bepavrs.</p> <p>In an agreement between a contractor and his sub-contractor, for the rental by the former to the latter, of machinery and appliances already on the ground at the date of the contract, for use in execution of the work sub-let, there is no implied warranty of the fitness of the machinery for such ■work, nor any implied' undertaking on the part of the principal contractor to repair defects therein, (p. 708).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by S. J. Ferguson against the Middle States Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. .Trusts — Implied Trust — Adverse Claimants — Sale of Timber.</p> <p>There is no such relation between adverse bona fide claimants of title to land as will raise, for tlie benefit of the true owner, an im plied trust in the contract price of timber sold from.the land by the other claimant while in possession, though the latter took title pend ing an action of ejectment by which the title of the true owner was afterwards established, (p. 716).</p> <p>2. Injunction — Grounds—Lemedy at Law.</p> <p>Where there is plain, complete and adequate remedy at law, equity refuses jurisdiction, (p. 718).</p> <p>(POEEENBARGER, JUDGE, dissenting.)</p>

<p>1. Pleading — Declaration—Demurrer—Grounds.</p> <p>A declaration, though indefinite and uncertain, is not demurrable, if with reasonable certainty it states one or more good and1 not inconsistent causes of action. A demurrer does not lie for mere indefiniteness or duplicity. Such defects are curable under §46, ch. 130, Code. (p. 722.)</p> <p>2. Same — Cure of Error — Verdict.</p> <p>A defect in a declaration which can not be regarded on demurrer is, by §3, eh. 134, Code, cured after verdict, (p. 724).</p> <p>3. Trial — Answers to Interrogatories — General Verdict.</p> <p>Answers to special interrogatories inconsistent with the general • verdict will control, (p. 725).</p> <p>4. Judgment — Verdict—Evidence to Support.</p> <p>A verdict on evidence furnishing no reasonably accurate foundation for computation of damages resulting from breach of contract, can not serve as a basis for a judgment thereon, p. 729).</p> <p>5. Mines and Minerals — Oil and, Gas Lease — Breach—Damages— Proof.</p> <p>Where no definite basis is available for the ascertainment of damages for breach of the implied covenants of an oil and gas lease, the best evidence which the circumstances will permit is all the law requires. ■ (p.729).</p> <p>6. Same — Oil and Gas Lease — ■Duty of Lessee.</p> <p>The owner of a lease' for 'the production of oil and gas, containing the usual terms and conditions, must, if either mineral is found in paying quantities on the lands, exercise due and reasonable diligence in prosecuting operations thereunder for the mutual benefit of himself and his lessor; and if he unreasonably fails or refuses so to do, damages therefor are recoverable against him in an appropriate action at law. (p.725).</p> <p>7. Same — Oil and Gas Lease — Duty of Operator — Determination.</p> <p>The judgment of an operator of sueh lease, as to the diligence with which and the extent to which wells should be drilled thereunder, upon discovery of either mineral in paying quantities, will control, .if exercised in good faith and not unreasonably or arbitrarily to promote his own peculiar benefit, to the manifest prejudice of the lessor. Both are bound by that degree of diligence which, surrounding circumstances and conditions being considered, would reasonably be expected of operators of ordinary prudence, experienced .and engaged in the same business, having due regard for the interests and advantages of themselves and their lessors, (p. 725).</p> <p>8. Same — Oil and Gas Lease — Breach—Action for Damages — Burden of Proof.</p> <p>To entitle him to damages for unreasonable or arbitrary evasion of implied covenants of an oil and gas lease, nothing therein preventing, for diligent prosecution of operations, either mineral being found in paying quantities on the premises, plaintiff assumes the burden of showing, and by clear and convincing proof must to avail him show, by witnesses having experience and shill and engaged in similar operations, that the lessee, having due regard for the advantage and profit of himself and lessor, has not, surrounding circumstances and conditions being considered, exercised ordinary diligence in conducting such operations. If he has, plaintiff can not recover, (p.725).</p> <p>9. Same — Oil and Gas Lease — Breach—Recovery by Lessor — Right.</p> <p>Among such circumstances and conditions are the situation of the parties; the character of the mineral products; the nature of the oil-bearing sand, whether dense or soft and porous; developments on contiguous lands, whether by samé or different operators; cost of drilling; proximity.to market, and facilities for marketing; current prices, whether high or low; location of the lands, and such other conditions attendant upon the operations as may explain necessity for prompt, or excuse for delayed, action in prosecuting such developments. And if, considering these, the operator has exercised that reasonable diligence and sound, practical judgment common to and exercised by operators of ordinary prudence and experience in the same business under the same or similar circumstances and conditions, plaintiff can recover, (p. 725).</p> <p>(Poefenbargeb, Judge, concurring.)</p>

<p>1. Malicious Prosecution — Sight of Action — Requisites.</p> <p>To maintain an action for malicious prosecution it is essential to prove (1) that the prosecution was malicious, (2) that it was without reasonable or probable cause, and (3) that it terminated favorably to plaintiff, (p. 742).'</p> <p>2. Same — Proof of Malice — Sufficiency.</p> <p>Proof that plaintiff, formerly a tenant of defendant, was arrested on a warrant, charging him with1 trespass to property, procured to be issued by the landlord’s agent, acting within the scope of his employment, for the sole purpose of getting him off the land, establishes malice, (p. 742).</p> <p>3. Corporations — Actions—Declaration—Agency.</p> <p>In a declaration, charging a corporation with a trespass committed by a certain person as its agent, it is not essential to aver the agency, (p.743).</p> <p>4. Malicious Prosecution- — Corporations—Acts of Agents.</p> <p>A coal mining corporation is liable for a malicious prosecution procured to be made by its superintendent acting in furtherance of its business, (p.743).</p> <p>5. Same — Continuation of Prosecution — Malfeasance of Officer.</p> <p>A person who sets on foot a malicious prosecution is liable for its continuance and for the malfeasance of the officer making the arrest, (p. 744).</p> <p>6. Contracts — Validity—Duress.</p> <p>A person unlawfully imprisoned, who is induced by his prosecutor, or his agent, to sign a writing agreeing not to sue for damages, in order to obtain his liberty, is not bound thereby, (p. 745).</p> <p>7. Evidence — Conelusiveness on Tarty Introducing — Dwess.</p> <p>And in an action for malicious prosecution he may prove that he signed such paper under duress, notwithstanding he put it in evidence himself for the purpose of proving a termination of the prosecution, (p.745).</p>

<p>1. Bills and Notes — Protest—Notice.</p> <p>If notice of protest of a negotiable note be regularly mailed, as prescribed by section 8, chapter 99, Code 1906, it is immaterial that such notice may not have been in fact received by the endorser thereon. He is nevertheless legally bound by such notice, (p. 749).</p> <p>2. Contracts — Agreement to Begay Embezzled Money — Validity— Consideration — Pendency of Prosecution.</p> <p>Notwithstanding the pendency of criminal proceedings against the wrongdoer, one whose money or property has been embezzled, or fraudulently obtained, may contract with such wrongdoer for repayment of the money or satisfaction for the loss sustained, and take security therefor, without invalidating the contract, unless there be included therein, as ^a part of the consideration therefor, some promise or agreement, express or implied, that such prosecution shall be suppressed, stifled or stayed, (p. 749).</p> <p>3. Same.</p> <p>Such contract, however, if made in whole or in part upon consideration of such unlawful promise or agreement is void1 as against public policy, and will not be enforced by the courts, (p. 750).</p> <p>4. Same — Legality—Sufficiency of Evidence.</p> <p>In this case the verdict of the jury against the defendants on the plea of such an illegal contract was sustained by the proof, and there was no error in the judgment below denying them a new trial, (p. 750).</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Suit by Paris Jarrell and others against the Laurel Coal & Land Company and others. Prom decree for defendants, complainants appeal.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by Nancy A. Mabie against J. B. Moore and others. From decree for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill by the State against J. W. Hicks and others. From the decree, Louisa Day appeals.</p>

<p>1. Taxation — Tax Sale — Survey—Compliance With Statute.</p> <p>Properly construed section 17, of chapter 31, serial section 1075, Code 1913, does not require the purchaser at a tax sale of an undivided interest in a city, town or village lot, as a condition precedent to obtaining from the clerk of the county court a valid deed for such interest, to have such interest therein or the whole lot, surveyed and a plat thereof made by and returned with the report of the surveyor, and recorded along with the deed. In such cases a report by the surveyor showing and specifying the metes and bounds of the whole lot, for the purpose of description, made and recorded along with the deed to the purchaser will -constitute substantial compliance with the statute. Building Loan Association v. Sohn, 54 W. Va. 101, point 3 of the syllabus, modified and distinguished. Jp. 772).</p> <p>2. Same — Tax Sale — Purchaser—Bights—Improvements—Question for Court. i</p> <p>The fact that valuable improvements have been placed upon sueh lot between the date of the tax sale and the deed to the purchaser, by purchasers from the former owner, ignorant of such tax sale, will not be ground for invalidating the tax deed for sueh undivided interest. All questions respecting such improvements are properly addressed to the court in a suit for partition or settlement between the co-owners of such lot. (p. 774).</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit by the Graham Grocery Company and others against C. B. Chase and others. Prom decree for plaintiffs, defendants appeal.</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Suit by David Mullins and another against the Laurel Coal & Land Company. Prom decree for defendant, plaintiffs appeal.</p>

Action by W. P. Lowance against A. E. Johnson. Verdict for plaintiff set aside, new trial awarded, and plaintiff brings error.

<p>1. Bills and Notes — Payment to Prior Holder — Effect.</p> <p>Payment to a prior holder does not discharge a negotiable instrument in the hands of a subsequent holder in due course. Subsection 4 of section 119, Negotiable Instruments Act, does not apply in such case, (p.794).</p> <p>2. Same — Action T>y Holder in Hue Course — Signature of Indorser.</p> <p>In a suit by the holder in due course against the maher of a ' negotiable note, the genuineness of the indorser’s signature is not material if he has either authorized, or subsequently ratified such indorsement, (p.796).</p> <p>3. Trial — Direction of Verdict — Evidence.</p> <p>When the evidence is such as to warrant a finding by the jury in favor of one of the parties only, the • court may properly direct a verdict for that party, (p.797).</p> <p>(Lynch, Judge, absent.)</p>

<p>1. Trial — Motion to Exclude Evidence — Waiver.</p> <p>If after the adverse action of the court on his motion to exclude plaintiff’s evidence, defendant introduces to the jury his own evidence, he thereby waives the benefits of his motion to exclude plaintiff’s evidence, (p.799).</p> <p>2. Electricity — Injuries—Evidence—Mes Ipsa Loquitur.</p> <p>Where, as in this case, the evidence tends to show that plaintiff’s injuries resulted from the fall of his horse caused by a shock received from one of the rails of defendant’s railway, overcharged with electricity, and dangerous to persons and animals travelling on the street, and the character of the fall and the injuries to horse and rider and the electrical manifestation on the track at the instant of the fall, as proven, are not inconsistent with other facts proven and the known and proven nature of electricity so employed when there are defects in the rails, or in the bonds binding them, the jury may properly infer, in the absence of evidence showing that the bonds were not broken and that the track was in good repair and condition, that the injury resulted from a defective and dangerous track, and the rule res ipsa loquitur applies, (p.799).</p> <p>3. Negligence — Evidence—Res Ipsa Loquitur.</p> <p>The rule res ipsa loquitur is, that when the agency causing the injury is under the management and control of defendant, and the injury is such as in the ordinary course of things does not occur, it affords reasonable evidence, in the absence of explanation by defendant, that the injury resulted from negligence, (p. 801).</p> <p>4. Electricity — Negligent Operation — Presumptive Proof.</p> <p>"When a horse being driven upon a public street is injured by contact with the rails of an electric street railway, and falls suddenly on the track and his rider also comes in contact with such rail and is shocked thereby, such facts are presumptive proof of negligence by the company in the operation of its road, (p.802).</p> <p>5. Same — Electric Shoclc — Negligence—Burden of Proof.</p> <p>Where the evidence is as assumed in points two and four of the syllabus, and witnesses present prove that there were unusual electrical phenomena on the rail at the same instant, and that the fall of the horse was not like an ordinary stumble, but as if shot, or struck with electricity, a case is not presented for the application of the rule respecting two equally plausible causes for the injury for one of "which defendant is, and for the other it is not liable, denying recovery unless negligence of defendant causing the injury be shown, (p. 803).</p> <p>(Lynch, Judge, absent.)</p>

<p>Appeal from Circuit Court, Randolph. County.</p> <p>Suit by D. H. Hill Arnold, trustee, etc., against G. A. Knapp and others. Prom decrees for plaintiff, defendants appeal.</p>