Volume 76 — West Virginia Reports

<p>Corporations — Subscription—Variation and Effect.</p> <p>A subscription to tie capital stock of a corporation subsequently to be formed, not revoked before tie organization thereof, is valid but conditional, (p. B).</p> <p>2. Right to Revoke Subscription.</p> <p>Quaere, whether such a subscription is revocable? (p. 5).</p> <p>3. Corporations — Organization—Meeting of Stockholders — Eight of Subsmber to Participate.</p> <p>An informal, antecedent subscriber to the stock of a corporation subsequently to be formed, is entitled to an opportunity to pay the initial statutory installment of his subscription before organization and to participate in the first meeting of the stockholders held for the purpose of organization, (p. 5).</p> <p>4. Same — Antecedent Subscription — Pelease of Subscriber — Failure to Tender Privilege.</p> <p>Tender of such privileges is a condition of the subscription and non-performance thereof by the ineorporatois releases the subscriber, (p. 5).</p> <p>5. Same — Antecedent Subscription — Statutes.</p> <p>Though such an antecedent subscription does not make the subscriber a technical or statutory stockholder, it is made in contemplation of the constating laws of corporations and to be executed and carried into effect under them, wherefore they form parts of the contract of subscription, (p. 6).</p>

<p>1. Public Lands — 'Forfeited, School Lands — Money for Redemption— Restitution.</p> <p>Money paid into eonrt for redemption of forfeited land, under a deeree which is subsequently reversed, should be refunded to the person by whom it was paid, by way of restitution, (p. 12).</p> <p>2. States — “Suit Against State” — Suit for Redemption Money.</p> <p>A petition filed in the suit, praying the return of such money by way of credit on the amount due for redemption of part of the tract of land on account of which it was paid, under a subsequent decree, is not a suit against the state, the money never having been disposed of in any manner by order of the court, (p. 12).</p> <p>3. Public Lands — Forfeited Land* — Recovery of Redemption Money.</p> <p>But it is to be allowed or returned without interest, unless it has been loaned, pending the proceedings, and produced interest, (p. 13).</p>

<p>1. Landloed and Tenant — Lease—Construction.</p> <p>A loosely drawn lease is to be interpreted in the light of the situation of the parties, the circumstances and the purpose for which it was executed, (p. 15).</p> <p>2. Same.</p> <p>A lease of a large tract of uncleared land guaranteeing to the lessee five crops therefrom, may be construed as giving five crops from each of such portions of the land as shall be cleared from year to year by the lessee, in the exercise of reasonable diligence, (p. 15).</p> <p>3. Same — Lease—Validity and Effect.</p> <p>The term contemplated by a lease so interpreted is one for more than five years and can be created only by deed or will; and if the lease is not under seal, it is a mere contract for such a term, passing no legal title, (p. 16).</p> <p>4. Same — “Tenant from Year to Year.’’</p> <p>One who enters under such an unsealed lease and clears and cultivates the land is a tenant from year to year. (p. 17).</p> <p>5. Same — Tenancy from Year to Year — Termination—Notice.</p> <p>Termination of such a tenancy by the landlord, without the consent of the tenant, requires notice in writing of his intention to terminate it, to be given three months prior to the end of the year, (p. 17).</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by L. EL Atkins against William Evans and others. Judgment for defendants, and plaintiff brings -error.</p>

<p>Error to Circuit Court, Berkeley County.</p> <p>Proceedings by the Williamsport, Nessle & Martinsburg Railway Company against the Standard Lime & Stone Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Constitutional Law — Master and Servant — Police Power — Bight of Contract — Payment of Wages.</p> <p>Section 80, Ch. 15H, Code 1913, forbidding under penalty “any corporation, company, firm or person, engaged in any trade or business, either directly or indirectly, to issue, sell, give or deliver to any person employed by” such corporation, company, firm or person, “in payment of wages due such laborer, or as advances for labor not due, any scrip, token, draft, check or other evidence of indebtedness payable or redeemable otherwise than in lawful money”, and providing that such “scrip, token, draft, check or other evidence of indebtedness shall be construed, taken and held in all courts and places to be a promise to pay the sum specified therein in lawful money by the corporation, company, firm or person issuing, selling, giving or delivering the same, to the person named therein, or to the holder thereof”, does not violate any constitutional provision, or unduly curtail the right of contract, and is therefore not an illegitimate exercise of the state’s police power.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by E. L. Long against the United Savings & Annuity Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Theodore Hoke and another were convicted of grand larceny, and bring error.</p>

<p>1. Equity — Final Decree — Jurisdiction io Set Aside.</p> <p>Sections 11 and 12, serial sections 4842 and 4843, chapter 127, Code 1913, properly construed, do not give jurisdiction to set aside final judgments or decrees after the end of the term, they are limited to dismissals or non-suits before final decree, and to judgments and orders of that character, (p. 48).</p> <p>2. Same.</p> <p>A decree showing appearance by plaintiff, and admission by him of satisfaction and discharge of all claims and demands against defendants and each of them, and on his motion dismissing the cause, and releasing the attachment sued out therein and levied on the property of defendants, is a final decree, and cannot at a sub- ' sequent term, under said sections, be set aside either on motion of an original party or of a stranger interested in the subject matter of the suit. (p. 48).</p> <p>3. Judgment — Final Decree — Jurisdiction to Set Asidle — Pleading and Process — N ecessit y.</p> <p>While courts of record independently of statute have inherent power after the term, for good cause shown, to set aside their final judgments and decrees and to reinstate causes on their dockets, they have no such jurisdiction in the absence of proper pleadings and process to the parties, (p. 49).</p>

<p>1. Master and Servant — Actions for Injuries — Sufficiency of Declarar tion.</p> <p>A declaration in an action for personal injuries, sustained by an employee in a coal mine, is not bad for failure to negative certain defensive matters, such as fellow servantey, assumption of risk, and tlie like. (p. 52).</p> <p>2. Appeal and Error — Dill of Exceptions — Certificate—Sufficiency.</p> <p>Where a bill of exceptions is signed by the judge in term time and made part of the record by an order of the court, no certificate to the clerk, as when signed by the judge in vacation, is required. Nor will a mere clerical error, as in a date, self correcting by the record, vitiate such bill of exceptions, (p. 53).</p> <p>3. Same — Harmless Error — Admission of Evidence.</p> <p>Though evidence be admitted bearing on an issue not presented by the pleadings, yet if it also bear on another'issue presented thereby, its admission will not constitute reversible error. Its application may be limited when requested by instructions to the jury. (p. 53).</p> <p>4. Same — Barmless Error — Rejection of Evidence.</p> <p>Error in rejection of evidence fully cured by the subsequent testimony of the witness admitted will not justify reversal, (p. 54).</p> <p>5. Master and Servant — Injuries io Servant — Safe Place to Worlc.</p> <p>An instruction telling the jury to find for plaintiff if the agents, of the defendant corporation failed to perform its non-assignable duty to use reasonable care to furnish plaintiff a reasonably safe place to work'is not bad for imputing that duty to agents. A corporation can act- only by authorized agents in the performance of any duty. (p. 54).</p> <p>6. Damages — Personal Injuries — 1 ‘ Commensurate ’ ’ — ‘' Compensatory. ’ ’</p> <p>An instruction authorizing the jury to find for plaintiff damages as they might ‘‘think proper”, commensurate with his injuries, not exceeding the sum sued for, is not bad because of the words “think proper”, limited by the words “commensurate with his injuries”, for such damages would be compensatory merely, the word “commensurate” as used in such an instruction being the equivalent of the word “compensatory.” (p. 55).</p> <p>7. Same — Excessive Damages — Loss of Proof.</p> <p>The verdict of the jury, in this case is supported by the evidence, and should not be set- aside as excessive, six thousand dollars, for loss of a foot. (p. 56).</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by O. J.. King against C. H. Scott. Judgment for plaintiff, and defendant brings error.</p>

Suit by Jane Garten against J. W. Layton and others. From a decree on a bill of review, reversing decree and granting the relief sought by the original bill, the defendant named1 appeals.

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by W. "W. Kersey against J. L. Kersey and others. From decree for plaintiff, the defendant named appeals.</p>

<p>1. Principal and Surety — Rights of Surety — Payment of Debt — Deed of Trust.</p> <p>In a suit to enforce liens against a debtor's land, to which all persons interested are parties, a surety protected by a deed of trust given by the debtor on his land to “indemnify and save him harmless,” has a right, after the debtor's default and before payment of the debt by himself, to a. decree directing the enforcement of the trust and application of the proceeds to the discharge of the debt. (P-81).</p> <p>2. Same — Rights of Surety — Enforcement of Deed of Trust — Disposition of Proceeds.</p> <p>It is error, in such case, to decree payment of the proceeds to the surety before he has paid the debt. (p. SI).</p> <p>3. Equity — Report of Commissioner — Grounds of Exception — Waiver.</p> <p>A party to a cause who appears before a commissioner and excepts to his report, but not on the ground of want of notice of the taking of evidence by him, will not be heard to complain for that reason, after a decree upon the report, (p. 82).</p> <p>4. Same — Supplemental Report of Commissioner — Grounds of Exception — Waiver.</p> <p>A party on whose motion a supplemental report is made, to correct omissions and errors, and who excepts to it, can not complain, after decree thereon, of matters not embraced in his exceptions, (p. 83).</p> <p>5. Mortgages — Enforcement—Decree—Requisites—Judicial Sale.</p> <p>In a suit to enforce vendor's liens, judgment liens, and liens created by trust deeds given to secure payment of debts, providing, in case of default, for a sale of the land for cash, it is not error to decree a sale of the land without ascertaining its rental value, (p. 83).</p>

<p>1. New Trial — Evidence-—Erroneous Verdict.</p> <p>If the issues of fact do not depend wholly upon conflicting testimony of witnesses, but also upon facts and circumstances, admitted to be true or clearly proven and not denied, which 'are controlling in their character and inconsistent with the testimony of witness for one of the parties, and the jury renders a verdict, disregarding such facts and circumstances, the court should, on motion, set it aside as being contrary to the great weight of evidence, (p. 86).</p> <p>2. Contracts — Fraud—Defense to Contract — Waiver.</p> <p>A party who relies on fraud to defeat á contract must act with due diligence after the discovery thereof, or after he has had opportunity to discover it by the exercise of reasonable diligence, el'se he will be deemed to have waived it. (p. 88).</p> <p>3. Same — Validity—Procurement by Fraud! — Flection■—Gonclusiveness.</p> <p>A contract fraudulently procured is not void, but only voidable, and the party complaining may elect to repudiate it or to be bound by it. He has but one election, and if he eleets to be bound, after knowledge of the fraud, he is thereby concluded, (p. 88).</p> <p>4. Same — Contract Fraudulently Procured — Flection—Proof.</p> <p>He may elect by word or act, and acts which disclose an intention to be bound by the contract are sufficient to prove an election, (p. 88).</p> <p>5. Same — Contract Procured by Fraud — Pleading-—Evidence.</p> <p>A special replication is not necessary to a special plea of fraud in the procurement, or failure in the consideration of a contract, authorized by Sec. 5, Oh. 126, Code 1913. A general replication is the only proper reply to such plea, and on the issue thus joined, plaintiff may introduce any evidence that would be admissible under a special replication if one were allowed, (p. 89).</p> <p>6. Frauds, Statute car — Oral Option to Camcel Trade — Validity.</p> <p>An oral agreement to cancel a trade at the election of one of the-parties to it, if he should become dissatisfied at any time, is not an agreement not to be performed in a year, and need not be in writing to be .enforceable; and it is error to instruct the jury that, if they believe from the evidence it was not to be performed in a year, it is not binding, (p. 90).</p> <p>7. . Appeal and Error — Discretionary Puling.</p> <p>Wide discretion is given the trial court respecting payment of cost on awarding a new trial, and this court will not interfere with its ruling in that respect unless it clearly appears such discretion has been abused, (p. 91).</p>

<p>1. Descent and Distribution — Release by Heir — Bffeet.</p> <p>A paper executed by a grandson at the request of his maternal grandfather, and while his mother and father are still living, and purporting to release as an heir all his claim on all estate owned by his parents, in consideration of a farm promised him by his grandfather at his death, will not be effective as release of his own or the right of his widow and heirs at his death to take by inheritance his share in the estate of his mother dying intestate, although a part or all of her" estate came by devise from her father, the releasor’s grandfather, (p. 92).</p> <p>2. Same — Release by Hew — Validity and Bffeet.</p> <p>A grandfather, while the grandchild’s parent is still living, will not be permitted, by procuring such a release from his grandchild, to interrupt the law of descents and distributions, and to cut off his grandchild’s right to take by inheritance his due proportion of his parent’s estate, (p. 93).</p>

<p>Error to Circuit Court, Ritcbie County.</p> <p>Action by R. E. L. Frymier against the Lorama Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Contracts — Essence—Time.</p> <p>Ordinarily time is not of the essence of a contract, unless made so "by its terms, or unless it is an element of a mere condition precedent, (p. 105).</p> <p>2. Same — Breach—Beimmciation—Effect.</p> <p>An absolute renunciation of a contract by one of the parties thereto constitutes a breach thereof and also relieves the other from -performance of his promise or covenant, (p. 106).</p>

Suit by Clarence B. Sperry, administrator, etc., and others, against J. V. Tulley and others. From decree for plaintiffs, defendants appeal.

Suits by McIlwaine Knight & Co. and by the Kanawha Valley Bank against William Fielder and others. From adverse orders and decrees entered on a bill of review, defendants appeal.

<p>1. Partition — Parol Partition — Validity—Joint Tenants.</p> <p>A parol partition of land between joint tenants, however clearly the terms thereof may be established, is not valid and binding, unless completely executed by the taking of possession, in severalty, of the different parcels, (p. 116).</p> <p>2. Same — Parol Partition — Perfecting by Possession — Sufficiency of Evidence.</p> <p>A ease in which it is held the facts proven are not sufficient to establish possession in severalty, (p. 117).</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Suit by the Central District & Printing Telegraph Company against the Parkersburg & Ohio Valley Electric Railway Company and others. Prom the decree, the defendant named appeals.</p>

<p>1. Judges — Special Judge — Selection by- Agreement — Validity.</p> <p>An agreement made pursuant to section 11, chapter 112, serial section 4558, Code 1913, selecting a special judge to try a cause, purporting to be signed by counsel for all the parties, is not void because not signed by a guardian, ad litem for infant defendants, (p. 129).</p> <p>2. Equity — Pleading—Original BilD-^Designation as Cross-Bill.</p> <p>Though a bill be styled a eross-bill, it will be treated for what it really is, and if it contains proper matter calling for the relief prayed for it will be treated as an original bill. (p. 130).</p> <p>3. Mortgages — Deed as Security — What Constitutes.</p> <p>The general rule is that though, land be conveyed by debtor to .creditor by deed absolute, to secure the repayment of a loan, but with a collateral contract for the repurchase and reconveyance of the property, the deed and contract will be treated as a mortgage and not an absolute conveyance. But the deed and contract involved in this case, considered in connection with the objects and purposes of the parties, as disclosed by the record, and their subsequent transactions and dealings relating to the property, did not constitute a mortgage, (p. 130).</p> <p>4. Same — Sale by Trustee — Injunction.</p> <p>Where there is no real impediment in the way of the trustee in the execution of a deed of trust, and the amount of the debt secured is certain, there is no necessity for the trustee to resort to a suit to remove impediments, or to have the debt adjudicated. To such cases the rules applicable to creditors' suits and the like have no application. Nor will a sale by the trustee in such case be enjoined at the suit of the debtor to await the litigation of unrelated controversies between some of the parties, (p. 136).</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by Mathias T. Williams against William H. Oarr and others. From a decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by J. R. Clark against E. B. Lee. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bailroads — Operation—Children of Coal Mine Employees — Duty of Company.</p> <p>Ordinarily a coal mining corporation is under no duty, in the handling of its coal cars and motors on its private railway between the mouth of the mine and its yards or tipple, to keep a lookout for children of employees on such track, even though they reside in the company’s houses on its premises and near the track, (p. 150).</p> <p>2. Same — Operation—Children of Coal Mine Employees — Use of Tracies —Licensee.</p> <p>If the use of such track is not expressly or impliedly made incidental to the use of the house or measurably appurtenant thereto, children making use of the track, with knowledge of the company, are bare licensees, (p. 150).</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Action by Carter B. Hunter against A. E. Johnson. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Vendor and Purchaser — Purchase-Money Notes — Defense—Incomplete Title.</p> <p>Recovery on a note given as consideration in a sale to which only the ordinary general covenants of title apply, can not be defeated merely on the ground that the vendor did not have complete title, when the property sold has been delivered to the vendee as contemplated and his possession thereof under the sale has in no wise been disturbed, (p. 158).</p> <p>2. Covenants — General Warranty — Breach.</p> <p>A covenant of general warranty of title is not broken until there is an ouster or eviction of the vendee from the property, or equivalent disturbance, by paramount title, (p. 159).</p> <p>3. Trial — Direction of Verdict — Evidence.</p> <p>A trial court, if requested, may direct a verdict for the party who lias adduced evidence sufficient to warrant a verdict in liis favor, when no evidence appreciably tending to overthrow the case so made has been adduced by the opposite party, (p. 160).</p>

<p>1. Quieting Title — Cloud on. Title — Bill—Allegation, of Possession.</p> <p>A bill by a grantee to cancel a prior contract of sale, executed to ' another by his grantor, as a cloud on his title,'must aver possession of land. (p. 164).</p> <p>2. Same — Remedy at Law.</p> <p>Equity will not entertain a suit to cancel a contract for the sale of land, solely on the ground that it was procured by fraudulent representations. In such case the law affords full, adequate and complete remedy, (p. 164).</p> <p>3. Cancellation oe Instruments — Remedy al Law.</p> <p>Although equity jurisdiction to cancel written instruments does not depend upon the adequacy of a legal remedy, yet it .will decline to exercise it if complainant's remedy, either by action of defense at law, is plain, adequate and complete, (p. 164).</p> <p>4. Same — Failure of Bill — Effect on Cross-Bill — Independent Issues.</p> <p>Where plaintiff files a bill, praying for the cancellation of a written contract, and defendant files a combined answer and cross-bill, alleging affirmative matter, not only as defensive, but also as cause for affirmative relief, and prays for specific enforcement of the contract, the bill and cross-bill present independent issues, and the failure of the original bill does not necessarily carry with it the cross-bill. (p. 167).</p> <p>5. Specific Performance — Right to Belief — Discretion.</p> <p>Specific performance is not a remedy, existing as a matter of right, but rests in the judicial discretion of the chancellor, and to entitle a complainant to the relief, he must show that he has acted in good faith, and has been ready, willing and eager to perform the contract on his part. (p. 167).</p>

<p>1. Mines and Minerals — Contract Might to Sell or Buy Oil Property— Time Limit.</p> <p>A contract between tbe owner and another authorizing the latter to sell on commission, or to buy certain oil property at a stipulated price until a well then drilling should be “drilled in” and “completed”, and which provision was manifestly intended to protect the owner from depreciation in the event of a “dry hole”, or loss from appreciation in the value of his property if such drilling well should come in a good well, is limited to the time between the date of the contract and the time immediately before the drilling in and completion of such well into and through all the oil or gas bearing sands in the vicinity of the well, as contemplated by the parties, (p. 178).</p> <p>2. Same — Oil Well — Agency or Option Contract — “Drilled in”— “Completed.”</p> <p>The'words “drilled in” and “completed”, as applied to such oil well then being drilled, and referred to in such agency or option contract, are used synonymously and mean one and the same thing, namely, drilled in and completed through such oil or gas bearing sands, (p. 179).</p> <p>3. Same — Oil Property — Agency or Option Contract — Construction.</p> <p>The time limit of such a contract cannot be controlled by the’ contract between the owner of such well and the drilling contractors, not referred to therein, nor made with reference thereto, as to what was meant by the words “drilled in”, or “completed”, employed in such agency or option contract, (p. 180).</p> <p>4. Brokers — Commission—Sale of Oil Property — Sufficiency of Evidence.</p> <p>In this ease the evidence 'does not support the allegation of the . declaration that plaintiff sold or procured purchasers for the property within the time and upon the terms specified in his contract of agency, and entitling him to the compensation provided for therein. (p. 180).</p> <p>5. Same — Commission—Performance—Time Limit.</p> <p>Where as in this case the agency contract to sell real estate is limited to a certain time, or to a certain event, the contract must be performed within the time specified, unless waived, or the contract extended by the owner, to entitle the agent to the compensation stipulated, or to any compensation, (p. 183)..</p> <p>6. Same — Commission—Performance Within, Time Limit — -Sufficiency of Evidence.</p> <p>In this ease the facts proven do not show waiver of the time or extension of the contract of agency, or interference by the owner of the property, the subject of the agency, (p. 183).</p> <p>7. Same — Commission—Performance—Time Limit.</p> <p>3STor do the pleadings and proofs in this ease mate out a case falling within the rules of Reynolds v. Tomplcims. 23 W. Ya. 229, and Ice v. Maawell, 61 W. Ya. 9. (p. 185).</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by the Telluric Company against John H. Bramer and others. From decree for defendants, plaintiff' appeals.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by B. A. "Woodall and others against Alexander J. Bruen and others. From decree for defendants, plaintiffs appeal.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by Chloe Ross, who' sues, etc., against the Kanawha & Michigan Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Suit by Josiah C. Stoddard and others, receivers, etc., against Linnie Jarrett and others. From a decree for defendants, plaintiffs appeal.

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Suit by Elmus B. Harbert against the Hope Natural Gas Company. From a decree for defendant, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by Jasper S. Kyle against Sheridan R. Griffin and others. Prom a decree for plaintiff, the defendant named: appeals.</p>

Suits by C. A. Hornor against Noah Life, administrator, etc., and by Isaac F. Butcher against Noah Life, administrator, etc., and others. From an order denying a motion to reverse decree of sale, Isaac F. Butcher appeals.

<p>1. Acknowledgment — Married- Women — Sale of Realty.</p> <p>A married woman can bind her land for sale only by a writing which she duly acknowledges as the statute requires, (p. 237).</p> <p>2. Same — Married Women.</p> <p>Where a married woman by a written option executed only by her signature and seal, agrees to convey her land to another in case he eleets to take the same within a stipulated time, her acknowledgment of the same made before a notary after the time fixed for such election has expired, will not, without more, revive and legalize the agreement and an election made under it within the time. (p. 238).</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Suit by Charles A. Smith against the Board of Education of Parkersburg District. From decree for defendant, plaintiff appeals.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by the Parkersburg & Marietta Sand Company against Lloyd E. Smith. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Indictment and Information — Joinder of Offenses — Demurrer.</p> <p>Joinder of two or more offenses of the same general nature in an indictment is not ground of demurrer. The accused has 'ample protection. from embarrassment by means thereof in his right to require an election by the state, as to which of the alleged offenses* it will rely upon for conviction, (p. 265).</p> <p>2. Same — Duplicity-—-“Formal Defect.”</p> <p>The duplicity incident to the joinder, in a single count in an indictment, of two or more misdemeanors of the same general nature and subject to the same punishment, is a formal defeet from which sec. 10, ch. 158, Code, serial see. 5559, relieves, (p. 265).</p> <p>3. Same — Duplicity—Carrying Weapons — Sufficiency.</p> <p>. An indictment charging the accused in a single count, with the unlawful carrying about his person, of certain revolvers, pistols, dirks, bowie knives, slungshots, billies, metallic and other false kunckles and other dangerous and deadly weapons, without a license therefor, as required by law, is sufficient, (p. 265).</p> <p>4. Criminal Law — Deception of Evidence — Debutlal.</p> <p>Though perhaps not cause for reversal, the admission in rebuttal,, of testimony of a prosecuting witness to the effect that he had given to the grand jury the names of other persons, as witnesses for the state, who had, as witnesses in the trial, disavowed any knowledge of the guilt of the accused, is erroneous, (p. 266).</p> <p>5. Same — Evidence—Capiases and Deturns.</p> <p>Capiases for the accused in a criminal trial and the returns thereon are not parts of the record. To be available as evidence in the trial, they should be introduced as sueh, that the opposite party may know they are to be relied upon. (p. 266).</p> <p>6. Same — Ground for Deversal — Argument—Documents Not in Evidence.</p> <p>Allowance of the use, in the argument, of sueh writs and returns, not so introduced, for the purpose of showing incriminating conduct on the part of the accused, accompanied by refusal of permission to rebut or repel the charge of sueh conduct, is reversible error, (p. 266).</p>

<p>1. Evidence — Parol—Unambiguous Contract.</p> <p>A clear, plain, definite and unambiguous contract cannot be varied by parol'evidence of facts and circumstances known to tie parties, which might have induced intent different from that expressed, or contemporaneous or subsequent conduct inconsistent with the terms used. (p. 270).</p> <p>2. Mines and Minerals — Oil and Gas Lease — Covenant for Penalty— Construction — Failure to Complete Well.</p> <p>A covenant in an oil and gas lease, absolutely binding the lessee to complete a well on the premises within four months, and conditionally to complete three more within successive periods of three months, unavoidable delays after starting to drill excepted, and, upon failure to drill and complete them or any of them, to pay $100.00 "forfeit for each well above specified, which he has not then completed, or surrender the lease for cancellation,” conditionally imposes one penalty for the non-drilling of each well, not successive penalties for each failure to be paid every three months, (p. 270).</p> <p>3. Payment — Misialce of Lem — Fight to Feoover Money Paid.</p> <p>Money paid under a mistake of law and with full knowledge of the facts cannot be recovered back, (p.271).</p> <p>4. Principal and Agent — Voluntary Payment of Agent.</p> <p>Payments made by an agent, acting within the scope of his authority, are binding upon the principal, under the law of voluntary payment, (p. 271).</p>

<p>Officers — Commissioner’s Bond — Bight of Action — Parties.</p> <p>One to whom money is payable from a special commissioner can not in his own name recover the same by an action at law on the special commissioner's bond. Recovery at law on the bond can only be bad in the name of the State, the obligee in the bond, for the use and benefit of him to whom the special commissioner should pay.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by John B. Smith and others against Charles Greene and others. Prom the decree, defendants Nannie Fisher and others appeal.</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Suit by Paul Golden and others against Daniel O’Connell and others. Prom decree for plaintiffs, the defendant named appeals.</p>

<p>1. Public Lands — Conflicting Grants — Burden of Proof — Instructions.</p> <p>Where, in ejectment, plaintiff claims under a junior, and: defendants under a senior inclusive, patent, the former, to recover, must show location of his land within some of the excepted areas; and an instruction imposing on defendants the burden to locate all the exceptions in the senior grant and to show that they do not embrace the land in controversy, is erroneous, (p. 288).</p> <p>2. Trial — Instructions—Burden of Proof — Waiver.</p> <p>Nor do defendants, by assuming and attempting to sustain in the trial court such burden of proof, waive their right to object to the giving of the erroneous instruction or to assign it as error in .the appellate court, (p.288).</p> <p>3. Adverse Possession — Extent of Possession — Conflicting Patents— Exceptions from, Senior Patent.</p> <p>While plaintiff, under deed for 174 acres wholly within the junior, but interlocking to the extent of 25 acres with the senior, patent, is entitled to recover the interlock if it falls within the exceptions in the older grant and he has been in actual possession for ten years of any portion of the 174 acres; yet,- if tbe area in controversy is not covered by any of the exceptions, he can not recover it without showing actual and adverse possession for the requisite period of some part of the interlock, (p. 289).</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Assumpsit for breach of contract by Roberts & Stanley against the American Column & Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Criminal Law — Best and Secondary Evidence — Record of Internal Revenue Collector — Intoxicating Liquors.</p> <p>Parol testimony is not admissible to prove the contents of a record kept in the office of the internal revenue collector, showing that a government license was issued on a certain date to a certain person authorizing him to sell intoxicating liquors in a certain building, in the absence of proof of loss or destruction of such record, (p. 298).</p> <p>2. Intoxicating Liquors — Unlawful Sale — Prima Facie Case — Government License.</p> <p>Under Sec. 31, Ch. 32, Code 1913, prior to the passage of Ch. 13, Acts 1913, known as the prohibition statute, proof of finding intoxicating liquors in a building occupied by defendant and issuance of a government license to him, does not make out a prima facie ease of unlawful sale, in the absence of proof that such license was posted in said building, (p. 299).</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit by tbe Castle Brook Carbon Black Company against O. F. Ferrell and others. From decree for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit by Ella B. Vick against G. F. Ferrell, guardian, etc., and others. From a decree for plaintiff, defendants appeal.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by B. Hampton Gray, administrator, etc., against tbe Pocahontas Consolidated Collieries Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by Thomas P. Ryan, special receiver, etc., against J. B. Casto. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Malicious Prosecution — Proof of Probable Cause — Province of Court — Verdict.</p> <p>If, in an action for malicious prosecution, sufficient facts to constitute probable cause for institution of the criminal proceedings are clearly established by admissions or uncontradicted evidence or both, it is the province of the court to deny right of recovery by direction of a verdict for the defendant or the setting aside of a verdict for the plaintiff, (p.328).</p> <p>2. Same — Burden of Proof — Malice—Lacle of Probable Cause.</p> <p>To warrant recovery in such an action, the plaintiff must establish both malice and lack of probable cause, (p. 328).</p> <p>3. Same — Defense—Probable Cause — Existence of Express Malice.</p> <p>If there was probable cause, the existence of express malice is immaterial, (p.328).</p> <p>4. Trial — Instructions—Cure of Erior.</p> <p>An erroneous instruction relating to an indecisive phase of the main issue in a ease, not binding as to such issue and accompanied by others fully and clearly advising the jury- of the rights of the party against whom such error was committed, is not prejudicial and does not warrant allowance of a new trial, (p. 330).</p>

<p>1. Dower — Relinquishment—Execution of Deed1 of Trust — Effect.</p> <p>By uniting with her husband in a deed of trust to secure the payment of money borrowed by him, the wife relinquishes her dower in the land only for the purposes of the trust and in favor of the secured creditor, not the husband, nor his general creditors, nor his heirs, (p.337).</p> <p>2. Same — Right—Deed of Trust — Husband's Equity of Redemption.</p> <p>If the husband still owning the equity of redemption, dies, the widow's dower therein becomes consummate, and she is entitled to full dower in the land, as against everybody except the trust lien creditor and persons holding under him. (p. 337).</p> <p>3. Same — Right of Widow — Trust Lien Debt — Payment.</p> <p>As against the heirs, distributees and creditors other than the lien creditor, she is entitled to have the personal property applied pro rata on the lien debt with all the others of its class under the statute classifying debts of decedents for purposes of administration, and the balance of that debt paid out of the proceeds of the sale of the particular land on which the lien is, sold subject to dower in the whole thereof, if such proceeds are sufficient to pay it. (p. 337).</p> <p>i. Redemption — Bight of Widow — Trust Lien.</p> <p>Quaere: In case of insufficiency of such proceeds to pay such balance, may the widow redeem as to so much of the debt as remains' after application of such proceeds to such balance; and, having done so, is she a creditor, to the extent of the redemption money, with right to share with general creditors, in the distribution of the proceeds of other real estate of which the husband died seized? (p.337).</p> <p>5. Dower — Mights of Widow — Incumbered Property — Surplus—Application of Statute.</p> <p>See. 3, ch. 65, Code, serial see. 3651, applies only to land bona fide sold in the lifetime of the husband, to satisfy a lien thereon paramount to the right of dower, and does not define or limit the right of the widow when the husband has died owning the 'equity of redemption in land so encumbered, (p. 337).</p>

<p>1. Marriage — Proof—Matrimonial Habit and. Repute — Suit for Power.</p> <p>Tn a suit for dower, wherein it is denied that the claimant is widow, direct evidence of the marriage is not necessarily requisite. Proof of matrimonial habit and repute may suffice to raise a presumption sufficiently establishing, in the absence of rebuttal, that the parties rvere laiviully married, (p. 353).</p> <p>2. Same — Recognition of Validity — Power.</p> <p>As a general rule, a marriage contracted in another state pursuant to the lav? thereof, though not according to our law, will be recognized so as to entitle a widow to dower in lands in this state, (p. 355).</p> <p>3. Wills — Fail-ure to Renounce — Waiver of Right of Power.</p> <p>A widow is not barred of her dower right for failure to renounce a will of her husband which mates provision for her, unless from the will the intention clearly appears that the provision is in lien of dower, (p.355).</p>

Action in assumpsit on a negotiable note of the First National Bank of Mannington against the Bank of Manning-ton and others. Judgment for plaintiff, and the defendant named brings error.

<p>Habeas corpus by Steve Bornee.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit by W. F. Harman and others against George W. Lambert and others. From decree for defendants, plaintiffs appeal.</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by J. C. Remage against J. A. Martin and others. Judgment for plaintiff, and defendant C. W! Marple brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by W. H. Easter against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Mandamus by the State, on the ' relation of the Public Service Commission, against the Baltimore & Ohio Railroad Company. _ , ., 7 ,</p>

<p>1. Appeal and Error — Motion to Dismiss — Affidavits—Filing■ of Appeal Bond.</p> <p>On a motion to dismiss an appeal on the ground that the appeal bond was not filed with the clerk of the circuit court within a year and two months from the date of the decree appealed from, it may be shown by affidavits filed in this eourt, in resistance to said motion, that bond was filed with said clerk in time and approved by him, and was subsequently lost or mislaid, (p. 415).</p> <p>2. Limitation op Actions — Operation of'Statute — Meiroaetive Effect.</p> <p>Statutes of limitations will not be given a retroactive effect unless by express terms, or by necessary implication, it clearly appears that the legislature intended that they should so operate, (p. 417). '</p> <p>3. Review — Proceedings—Time for Filing — Operation of Statute.</p> <p>See. 5, Oh. 133, serial section 4951, Code 1913, as amended by Oh. 40, Acts 1909, does not limit the right of a person under disability, to file a bill of review, to one year after the removal of such disability, if the decree complained of was pronounced before the statute as amended took effect. In such case, a person under disability has three years after the removal thereof in which to file a bill of review, (p. 417).</p> <p>(Williams, Judge, dissenting.)</p>

<p>1. Landlord and Tenant — Termination of Tenancy — Partial Destruction of Property.</p> <p>Partial destruction of the subject matter of a tenancy, by fire or otherwise, does not terminate the tenancy, (p. 427).</p> <p>2. Same — Terpiinaton of Lease — Desimetion of Property.</p> <p>The lease of a building impliedly carries the land under it, wherefore destruction of the building by fire does not terminate the lease, (p.429).</p> <p>3. Same — Termination of Tenancy — Abandonment of Premises.</p> <p>A tenant's temporary abandonment of the leased premises, in consequence of the destruction of the building by fire, and re-entry of the landlord for the purpose of rebuilding are not conclusive evidence of a surrender by operation of law. (p. 430).</p> <p>4. Appeal and Error — Findings of Faot — Evidence.</p> <p>A trial court’s finding on an issue of fact, sustained "by a decided preponderance of the evidence, cannot be disturbed by the appellate court, (p. 430).</p>

<p>Corporations — Officers—Fidelity Bond — Defaults Covered.</p> <p>The fidelity bond of an officer or agent of a private corporation, conditioned generally for faithful performance of the duties of his office or employment, is construed to cover defaults in such duties as are annexed to the office or employment at the time of the execution thereof and such additional ones as shall be subsequently annexed to it in the exercise of corporate,power, (p.435).</p> <p>Principal and Surety — Officers—Fidelity Bond — Liabilities of Sureties.</p> <p>The sureties are deemed to have known such additional duties could and might be annexed and to have contracted with reference thereto, (p.437).</p> <p>Corporations — Principal and Surety — Officers—Ambiguous By-Law —Fidelity Bond — Liability of Surety.</p> <p>Interpretation of an ambiguous by-law of a private corporation is a function within the province and power of the board of directors, and, in so far as such power affects the liability of the sureties of an officer or agent of the corporation, they are deemed to have been cognizant of it and to have contracted with reference thereto, (p. 440).</p> <p>Same — By-Laws—Construction by Directors — Authority—Authority of Officers.</p> <p>No formality is essential to the devolution of power or authority upon a corporate officer, by the board of directors, or to their construction of an ambiguous by-law. Such results may arise from conduct and methods of transacting business, (p. 440).</p> <p>Building & Loan Associations — Ambiguous By-Law — Construction.</p> <p>By-laws of a building association, requiring weekly meetings of the board of directors for the purpose of receiving dues and Other demands from the stockholders and attendance of the treasurer thereat, but not expressly inhibiting him from receiving dues at other times and places, is ambiguous and subject to construction by the directors and officers of the corporation, (p. 440).</p> <p>Same — Authority of Treasurer — Aequiesoense of Directors.</p> <p>The authority of the treasurer of an association operating under sueh a by-law, to receive dues, premiums, interest and fines, for and on its behalf, at times and places other than those of the weekly meetings, is established by proof of his having done so for a long period df-'time, with the knowledge and acquiescence oí the board of directors, (p. 440).</p> <p>7. Principal and Surety- — Default of Officer — Constructive Notice— Duty of Corporation — Sureties.</p> <p>Mere constructive notice to a corporation of a default on the part of an officer or employee imposes no duty upon it to give notice thereof to.his- sureties or dismiss him from its service. Nor does such notice impose duty to make the default known to persons who-are about to become his sureties in a subsequent bond. (p. 444).</p> <p>8. Same — Fidelity Bond• — Notice of Default.</p> <p>Admission of a shortage, by the treasurer of a corporation, to directors and other officers thereof, accompanied by an explanation exculpating him from personal fault and dishonesty and followed by his representation that he had fully made it good, is not sufficient to prove the directors and officers had reason to believe the treasurer fraudulently procured persons to become his sureties in bonds subsequently given by him to guarantee faithful performance of his prospective duties as such treasurer, (p.444).</p> <p>9. Compromise and Settlement — Corporate Officers — Settlement of Default — Presumptions.</p> <p>A settlement of such default is not inferable from mere payments on account thereof and representation by the defaulting officer’that he had fully made up the shortage, (p. 443).</p> <p>10. Principal and Surety — Officers—Fidelity Bond — Belease of Sureties.</p> <p>A loan of money to the defaulting officer, secured by a deed of trust and credited on his shortage is not an extension of time, releasing the sureties in his bonds, (p.444).</p> <p>11. Corporations — Officers—Terms of Bonds.</p> <p>Bonds given annually by a corporation officer annually elected and conditioned for faithful performance of duty during the term and until the election and qualification of a successor hold only during the terms and for reasonable times thereafter, (p.449).</p> <p>12. Same — Defaulting Officer — Equity—Issues.</p> <p>It is not error .to dismiss out of a suit to wind up a corporation and enforce liability of the sureties of the treasurer, the settlement of the accounts of the trustees in an assignment made by the treasurer for the benefit of his creditors, (p. 450).</p> <p>13. Limitation op Actions — Fidelity Bond — Corporate Officer — Demurrer to Bill.</p> <p>A demurrer to so much of a bill as applies to a bond, liability on which is barred by the statute of limitations, is properly sustained, (p. 450).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Edward Stuck, an infant, who sues, etc., against the Kanawha & Michigan Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Ejectment by Elsworth Croston against Benjamin Franklin McVieker. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Municipal Corporations — Sidewalks—Destruction and Failure to Repair — Elements of Offense.</p> <p>The offense created by §56a. xlii, eh. 43, Code 1913, consists of two elements: destruction of or injury to sidewalk, and failure to > repair it. (p.467).</p> <p>2. Same — Injury to Sidewalk — Failure to Repair — Indictment—Sufficiency.</p> <p>An indictment under the statute, which omits to allege failure to repair, is fatally defective on demurrer, (p.467).</p>

<p>1. Dismissal and Nonsuit- — Discontinuance—Neglect of Duty by Cleric of Coicrt.</p> <p>When a chancery cause has been matured for hearing and presented to the court for decision, the failure of the clerk to keep it on the court docket until finally disposed of, caused solely by his. negligence, will not prejudice the rights of litigants, (p. 472).</p> <p>2. Action — Dismissal ané Nonsuit — Discontinuance—What Constitutes.</p> <p>A cause -which has been submitted to the court for final decision, whether it is kept on the court docket or not, is not discontinued by failure to enter any orders of continuance therein for a period of eleven years; nor does such failure prove an abandonment of the cause, (p.473).</p> <p>3. Continuance — Pending Suit in Equity — What Constitutes.</p> <p>A chancery cause which has been submitted for decision is a pending suit, if no order has been made dismissing it, notwithstanding eleven years have elapsed without the entry therein of orders of any kind. See. 12, Ch. 114, Code 1913, operates to continue it from term to term without an order of court, (p.473).</p> <p>4. Action — Dismissal ané Nonsuit■ — Discontinuance—Abamdonment.</p> <p>The failure of a plaintiff, after submitting his cause for decision, to h-ave any further orders made therein for a period of eleven years does not prove a discontinuance or abandonment of the suit. (p. 473).</p> <p>5. Equity — Pleading—Supplementary Answer.</p> <p>A supplemental answer setting up matters which have arisen, since the issues were made and the cause submitted for decision, not responsive to the bill, is properly rejected, (p.473).</p> <p>6. Quieting Title — Parties—Lessee of Oil and Gas Lease.</p> <p>The petition of an oil and gas lessee, showing the lease was made pending a suit to determine the title to the leased premises, by a party to sueh suit, ashing to be made party and to have its rights adjudicated, is properly rejected, (p. 473).</p> <p>7. Trusts- — -Resulting Trust — Purchase from Tax Purchaser.</p> <p>A person receiving money from the owner of land under promise to redeem it from a tax sale, who, instead of redeeming, takes an assignment of the purchase from the tax purchaser and procures a tax deed to be made to himself, will be treated as a trustee holding the legal title for such owner. The law implies a trust relation between the parties in such case. (p. 476).</p> <p>8. Taxation — Tax Sale — Forfeiture of Owner’s Title — Payment of Taxes by Trustees.</p> <p>In such case payment of taxes by the trustee prevents a forfeiture of the owner’s title, (p.476).</p> <p>9. Equity — Scope of Relief — Pleading and Proof.</p> <p>If the specific relief prayed for can not be granted, the court may, if there is a prayer for general relief, grant any appropriate relief warranted by the averments in the bill and the proof, (p. 475).</p> <p>10. Trusts — Establishment—Jurisdiction—Possession of Land.</p> <p>Possession of the land by a plaintiff is not essential to jurisdiction in a suit to establish a trust, (p. 475).</p> <p>11. Abatement and Revival — Suit to Establish.</p> <p>A suit by the life tenant and remainderman to establish a trust in land, does not abate on the death of the life tenant, (p. 476).</p> <p>12. Vendor and Purchaser — Notice of Purchaser — Possession by Tenant.</p> <p>Possession by a tenant is sufficient notice to a purchaser of land to put him upon inquiry concerning the tenant’s right, (p.479).</p> <p>13. Trusts — Trust in Lands — Dealing With Notice — Effect.</p> <p>The quality of trust being once stamped upon land, no subsequent dealings therewith, by persons affected with knowledge of the trust, will defeat it. (p. 479).</p> <p>14. Same — Trustee—Payment of Taxes — Bight to Reimbursement.</p> <p>A trustee, although denying the trust and claiming in his own right, should be reimbursed on account oí taxes paid on the trust property, (p. 480).</p>

Suit by the City Bank of Wheeling and others against W. J. Bryan and others. From the decree, defendant John A. Howard, special receiver, appeals.

<p>Appeal from Circuit Court, Preston County.</p> <p>Suit by the West Virginia Development Company against the Preston County Development Company and another. From decree for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Jackson County.</p> <p>Suit by George C. Thomas against Eliza Anderson and others. Decree for plaintiff. Defendants appeal.</p>

<p>1. Sales — Rescission of Contract — Conditions—Return of Property.</p> <p>A purchaser of personal property, to avail himself of his right to be relieved from Ms obligation to pay the purchase money, by rejection of the subject of the sale for non-compliance with a condition thereof or by rescission of the contract for fraud or other sufficient cause, must reject or return the property in ioto and thus place the vendor in statu quo as nearly as may be. (p. 506).</p> <p>2. Same — Acceptance and Retention of Property — Waiver of Conditions - • — Pleading and Proof.</p> <p>Acceptance and retention of part of the property by the purchaser, is a waiver of conditions, misrepresentations and fraud and binds ■ him to payment of the whole of the purchase price, subject to his right of recoupment to the extent of the damages resulting from breach of warranties, if any. (p. 506).</p> <p>3. Same — Action for Price — Preach of Warranty — Pleading and Proof.</p> <p>In an action for purchase money, damages for breaeh of warranty may be proved under the general issue in assumpsit or debt, provided notice of the claim is filed as a basis therefor, but not otherwise. (p.506).</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit by the State- against J. W. Hicks and others. From decree for the State, defendant W. F. Harman appeals.</p>

<p>Mandamus by the State, on the relation of M. A. Meeks, against P. D. Morris, Judge.</p>

<p>1. FerRIes — Application to Establish — Public Need — Discretion.</p> <p>Upon an application to a county court to establish a third ferry, where there are already two ferries serving the same public, the imperative public need for such additional ferry, and not the private ends of the promoters, or their selfish desires to absorb the business of one or both of the other ferries, should control the sound discretion of the court in refusing or granting such franchise, (p. 522).</p> <p>2. Same — 1Establishment—Discretion—Evidence.</p> <p>Applying this rule, the facts established by the evidence in this case did not warrant the action of the county court in establishing such third ferry, (p. 523).</p>

<p>1. Commerce — -Inténtate Shipment — Operation of Sephurn Act— Pleading.</p> <p>The act of Congress known as the Hepburn act, imposing liability upon the initial carrier, when engaged in interstate commerce, “for any loss, damage or injury1' to an interstate shipment “caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose lines it may pass ’ supersedes the common law rule regarding negligent delay in the transportation of live stock; and its provisions may be invoked, when the proof shows its applicability, though not averred in any pleading filed in the case. (p. 528).</p> <p>2. Evidence — Declarations of Agent — Aémissihility.</p> <p>Proof of the acts and declarations of an agent, made in the course of employment and relating to transactions in which he is engaged, is competent evidence against the principal, (p. 530).</p> <p>3. Trial — Instructions—Inapt Phraseology — Construing Together.</p> <p>If when considered together instructions state the law of the case, and are not palpably inconsistent or misleading, mere inaptness of phraseology does not necessarily vitiate any one instruction, (p. 529).</p>

<p>1. Equity — Bill of Review — Right.</p> <p>A bill of review lies to error of law, but not to an erroneous eon-elusion on evidence, (p. 532).</p> <p>2. Same — BUI of Review — Right—Newly Discovered Evidence — Diligence.</p> <p>For a party to maintain a bill of review on after discovered evidence, it must appear that due diligence by him on the former hearing would not have brought to light the new evidence, (p. 532).</p> <p>3. Same — Bill of Revieiv — Newly Discovered Evidence — What Constitutes.</p> <p>Additional evidence of the same kind and to the same point is cumulative and will not avail as after discovered evidence to maintain a bill of review, (p. 533).</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by Amanda J. Morgan and others against "W. P. Pool and others. Prom decree for defendants, plaintiffs appeal.</p>

Suit by the State against A. C. Herold and John B. Emery and others, to forfeit lands for nonentry for taxation. From a decree adjudicating forfeiture and allowing defendant Herold to redeem, defendants Emery and others appeal.

<p>Appeal from Circuit Court, Randolph County.</p> <p>Creditors’ suit by R. D. Johnson Milling Company against 'William J. Road and others. Decree for the defendants, and ■complainant appeals.</p>

<p>Original application for mandamus by the State, on relation of J. W. Peters, against one Pinson, Mayor, and others.</p>

<p>1. Highways — Use—Common. Carriers.</p> <p>All rights of common carriage on highways, such as those com ducted by means of drays, omnibuses, hackney coaches and taxicabs, are legislative grants or concessions, much lower in legal quality and dignity than the rights of ordinary use to which highways are incidentally subjected by citizens in travel and the prosecution of their business, (p. 578).</p> <p>2. Municipal Corporations — Use of Streets — Common Carriers — Implied Grant.</p> <p>Legislative recognition of such right of common carriage, as one common to all citizens, by grant of authority to municipal corporations, to.lieense and tax persons engaged in the exercise thereof, in the manner in which they are authorized to license and tax ordinary vocations, is an implied grant of such common right, (p. 580).</p> <p>3. Highways — Use-—Common Carriers.</p> <p>But the legislature may so limit, qualify and regulate such right as to make the exercise thereof subserve the interest and convenience of the public, as in the case of ferries, street railways, telegraphs and telephones, (p.582).</p> <p>4. Constitutional Law — Highways—Use of Streets — Common Carriers —Regulation.</p> <p>To that end, it may prescribe the number, character, routes, rates and hours of service of common carrying vehicles on the highways, or delegate such power of regulation to municipal corporations, (p. 582).</p> <p>5. Municipal Corporations — Powers—Regulation of Use of Streets.</p> <p>A charter provision empowering a municipal corporation to grant, refuse or revoke licenses to the owners of vehicles kept for hire therein and to subject them to such regulations as the interest and convenience of the inhabitants thereof, in the opinion of the municipal authorities, may require, delegates to the corporation full legislative power over such vehicles, (p. 584).</p> <p>6. Same — Powers■—Regulation of Use of Streets — Busses.</p> <p>Under such authority, the coi-poration has power to prescribe the routes and hours of service of motor vehicles commonly called “Jitney Busses,” carrying passengers along the streets and taking in and discharging them in a manner similar to that in which they a're received and discharged by street cars, and to require from them indemnity against injury to persons and property occasioned by the operation thereof, (p. 584).</p> <p>7. Same — Ordinances—Validity—Discrimination.</p> <p>A municipal corporation having full legislative power to limit and regulate the use of vehicles kept for hire may classify them, for purposes of regulation; and an ordinance dealing fully with one class of such vehicles, as determined by the nature of their business and the prices they charge, is not discriminative because of its lack of provision for the regulation of other distinct classes of vehicles kept for hire, (p.586).</p> <p>8. Same.</p> <p>Specification of the price charged by a common carrier vehicle, as an element of its description in an ordinance prescribing its class, does not make the classification arbitrary or discriminative, unless it appears that there are other vehicles of the same class, as determined by the nature of their business, that charge prices other than those specified, (p.586).</p>

Proceedings for mandamus by the State, on the relation of R. D. Ileironimus, against the Town of Davis and others. Judgment denying relief, and relator brings error.

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit by James M. Vance against J. B. Ellison and others. Decree for defendants, and.plaintiff appeals. t</p>

<p>Cancellation of Instruments — Evidence—Procurement of Vote and Deed.</p> <p>A case determinable from its facts, upon well established legal principles.</p>

<p>1. Animals — Personal Injuries — Knowledge of Vicious Disposition.</p> <p>To charge an owner with liability for personal injury by a horse, actual knowledge of the vicious disposition of the animal is not essential. It is sufficient if from proved and unexplained circumstances he ought to have known, or if ordinarily prudent he would have known, its propensity generally to do similar mischief, (p. 605).</p> <p>2. Same.</p> <p>The owner of such animal may be chargeable with knowledge of its viciousness through his neglect to take notice of attacks frequently repeated upon the person or property of others, made near his residence and usual place of business, and ranging in time from two days to three years prior to the injury sought to be redressed, (p. 605).</p> <p>3. Same — Personal Injuries — Knowledge of Disposition — Pvidenee.</p> <p>Testimony offered to prove restraint upon the animal following a previous assault by it, the restraint being a circumstance from ■which, if true and unexplained, knowledge of its' disposition to inflict injury may reasonably be inferred, is admisisble. (p. 606).</p> <p>4. Same.</p> <p>The mere lapse of a reasonable time, two years here, affects the probative value, and not the competency, of such proof, (p. 606).</p> <p>5. Same — Personal Injuries — Knowledge of Disposition — Pvidenoe— Question for Jury.</p> <p>Whether defendant had knowledge, express or implied, as to the malevolent disposition of the h'orse, ordinarily is solely a question for the jury, upon proper instructions, as is also the probative force and value of the proof in the case. (p. 607).</p>

Action by the Beury Bros. Coal & Coke Company against the County Court of Fayette County. Judgment for plaintiff for less than claimed, and it brings error.

<p>1. Insurance — Wills—Assignment of Insurance Policy — Validity.</p> <p>The 'assignment endorsed on the policy of insurance sued on in this case is not testamentary in character, and for that reason void, as evidence of plaintiff’s title to the policy, (p. 618).</p> <p>2. Same — Life Insurance — Insurable Interest — Assignment of Policy — ■ Wagering Contract.</p> <p>A creditor has an insurable interest in the life of his debtor, and the assignment by the latter to the former of a policy or certificate of insurance in a fraternal insurance society, in consideration of initiation fees and dues paid thereon, and other loans and advancements made to the insured, does not convert the policy into a wagering contract, void as against public policy, (p. 618).</p> <p>3. Same — Mutual Benefit Insurance — Insurable Interest.</p> <p>This rule of insurable interest is applicable alike to ordinary life insurance policies and to contracts of mutual benefit societies, unless there be something in the contract, constitution or by-laws of the society, or statute law controlling the same, prohibiting it, (p. 619).</p> <p>4. Same — Mutual Benefit Insurance — Assignment.</p> <p>There is,nothing in the contract sued on in this case or in the constitution or by-laws of defendant, nor in the statute law controlling its organization, prohibiting such assignment or change of -beneficiaries, (p. 620).</p> <p>5. Evidence — Record Booh — Preliminary Proof.</p> <p>The record book of an officer of such fraternal insurance society, which by the terms of the contract is made prima facie evidence of the financial standing of the member and of the standing of his local lodge or tribe, the entries in which were duly proven by such officer to have been made with his knowledge and under his direction in his office, by his private secretary or assistant, is admissible in evidence, although the entry of the items therein be not also proven by such private secretary or assistant, (p. 621).</p> <p>6. Same — Best and Secondary — Fraternal Insurance.</p> <p>The provisions of the constitution and by-laws of such fraternal society, as to the duties of certain committees and boards constituted thereby, constitute the best evidence thereof, and it is not error to reject oral evidence of witnesses as to what such provisions are. (p. 622).</p> <p>7. Trial — Instructions—Refusal.</p> <p>Instructions to the jury which are too general in their terms, and are indefinite and uncertain in their application, and which ignore important issues and facts in the case on which the case may turn, are properly rejected, (p. 623).</p> <p>8. Insurance — Action on Policy — Waiver—Proof.</p> <p>Where waiver of the terms, conditions and1 warranties in a policy of insurance, limiting right of recovery thereon, is relied upon, the-burden of proving such waiver is ilpon him who affirms the fact of' waiver, and the same must be made out by clear and preponderating,evidence, (p. 628).</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Suit by the Atlantic Bitulithic Company against the Town of Edgewood and others. From decree for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Kanawha County. •</p> <p>Suit by W. M. Plumley, Jr., against the First National Bank of Hinton and others. C. C. Lewis, Jr., filed a cross-bill. From the decree, plaintiff appeals.</p>

<p>Dismissal and Nonsuit — Executors and Administrators — Action Toy Ad-ministratrix — Declaration.</p> <p>A declaration in an action by an administratrix for wrongful death, which fails to aver the due appointment and’ qualification of the plaintiff as administratrix, is insufficient on demurrer, and judgment-or dismissal and nil capiat is warranted if the plaintiff declines to amend in that particular.</p>

<p>1. Damages — Pleading—Ad Damnum Clause — Surplusage.</p> <p>Where the ad damnum danse prescribes a true and false measure of damages, the -latter will be treated as surplusage, (p. 643).</p> <p>2. Fraud — Evidence of Preliminary Negotiations — Admissibility.</p> <p>In an action for fraud and deceit practiced in the exchange of real estate consummated by deeds, evidence of preliminary negotiations is admissible to show the inducement for sueli exchange, though the agreement therefore is verbal, (p. 644).</p> <p>3. Same — Measure of Damages.</p> <p>In such action, the measure of damages is the difference in values between the lot as represented and as fraudulently conveyed by the deed delivered, plaitniff not electing to rescind, (p. 646).</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by J. F. Moore and others against the Hope Natural Gas Company. Judgment for plaintiffs, and defendant brings error.</p>

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

<p>Mines and Minerals — Royalties Under Oil Lease — Parties.</p> <p>In a suit by lessor against lessee for an accounting of royalty-oils produced, the assignee of a part of such royalty oils is a a necessary party thereto, as well as all other parties whose interests are involved therein.</p>

<p>1. Landlord and Tenant — Lease Construction — Covenant of Lessor— ' ' Grant ’ ’ — ■' ‘ Demise ’ ’.</p> <p>The -words ‘''grant” and “demise” in a lease, if unrestrained, impose upon the lessor a covenant that he has good title to the premises and right to lease them. (p. 665).</p> <p>2. Same — Lease—Dr each of Covenant.</p> <p>If the lessor in such a lease holds the title only as trustee, without power under the trust to execute the lease, and the lessee has notice of the trust, the implied covenant is broken the moment the lease is executed, (p.665).</p> <p>3. Trusts — Besnlting Trust — Beneficiary—Bight to Elect.</p> <p>The- beneficiary of a resulting trust may elect, as against one who has acquired an interest in the property, with notice of the trust, to take the title in the condition in w'hieh it was obtained by his trustee, (p. 665).</p> <p>4. Landlord and Tenant — Breach of Covenants — Liability of Maker.</p> <p>One who signs, seals' and acknowledges a lease, without having been made a party thereto by any terms found in its caption or body, does not make the covenants contained in it and is not liable for breadles thereof, (p. 667).</p> <p>5. Justices oe the Reace — Jurisdiction—Determination—-Title to Realty.</p> <p>A justice of the peace is not required to determine whether a question of title will collaterally arise in an action of which he would have full jurisdiction but for such question, if the objecting party does not file an affidavit setting forth facts showing such question will arise, (p.667).</p>

<p>1. Vendor'and Purchaser — Contract of Sale — Option.</p> <p>• A contract granting to the party of the second part an exclusive right and option to purchase certain lots of land and, in express terms, binding him to pay, in installments, a stipulated amount of purchase money, binding the parties of the first part to sell and convey the lots to him and giving them an option to annuli the unperformed part of the contract, in case of default in payment, and treat the payments as'money paid for the option and right of purchase and retain it, but not specifically extending to the party of the second part any right to withdraw or cease to make payments, is a contract of sale and purchase, not one of mere option to purchase, (p.569).</p> <p>2. Contracts — Construction—Language Used.</p> <p>Inferences and implications arising from the words of a contract yield to express provisions manifesting intention to the contrary thereof, (p.572).</p>

<p>Error to Circuit Court, Clay County.</p> <p>Action by D. Carmichael and others, partners, etc., against James Reed and another, partners, etc. Judgment for plaintiffs, and defendants bring error.</p>

<p>Commerce — “Interstate Commerce’’ — State License Tax — Trading Stamps.</p> <p>A company carrying on the business of selling to merchants in this state, upon mail orders addressed to it at its place of business in another state, merchants trading stamps, and redeeming same with premiums shipped from such other state as ordered, is engaged in interstate commerce, and can not be required to pay « state license tax for the privilege df conducting such business.</p>

<p>1. Prohibition — Might to Remedy — Want of Jurisdiction — Inferior Court.</p> <p>Prohibition lies, as a matter of right, in all cases where the inferior court has not jurisdiction of the subject matter in controversy, and it is not essential to the right to apply for the writ, that the question of jurisdiction should first have been presented to, and passed on by such inferior court; or, that the petitioner has not come other adequate remedy, (p.687).</p> <p>2. Same — Want of Jurisdiction — Determination.</p> <p>In determining whether an inferior court has jurisdiction to entertain an indictment, it is only necessary to determine whether the transactions and circumstances therein alleged show that an offense, punishable under the law, has been committed. The technical sufficiency of the indictment will not be inquired into, as if upon a demurrer or motion to quash, to determine jurisdiction, (p. 688).</p> <p>3. Bribery — “Executive Officer” — Public Service Commission.</p> <p>Members of the publie service commission are executive officers within the meaning of Sec. 5a, Oh. 147, Code 1913, malting it a felony to attempt to bribe any executive or judicial officer of the state, or any member of the legislature, by offering or proposing to give him money, testimonial, or other valuable thing, in order to influence him in the performance of his official or publie duties, (p. 691).</p> <p>4. Same — Elements of Offense — Official Action.</p> <p>To constitute the offense of attempted bribery, it is immaterial whether the official action thereby sought to be influenced was officially right or wrong, (p. 691).</p> <p>5. Criminal Law — Principal and Accessory — Distinction—Abolition.</p> <p>Secs. 6 and 8, Oh. 152, Code 1913, in effect, abolish the common law' distinction between an accessory before the fact and a principal felon, by making such accessory, in every felony, punishable as if he were the principal in the first degree, and punishable in the county in which the principal felon might be indicted, (p. 693).</p> <p>6. Same — Venue—Commission of Offense — Offer by Agent.</p> <p>A person who, without the state, counsels and procures, a responsible agent to offer money to a publie officer within the state, in order to influence him in the discharge of his publie and official duties, is guilty of a felony under the law of this state, and is punishable in the county where the agent made the offer, (p.693).</p> <p>7. Corporations — Public Service Commission — Bate Begulations- — TSn-foroement — Duty of Commissioners.</p> <p>Where the public service commission has, upon proper evidence and after due consideration, madé an order prescribing certain rates to be charged for services to be rendered by a public service corporation, it is the official duty of the individual members of such commission to compel obedience to such order, if it be not obeyed, by instituting proper proceedings in court, (p.695).</p> <p>8. Bribery — Corporations—What Constitutes — Publie Service Commission.</p> <p>And if, before instituting such proceeding, the individual members thereof should be sued in their official capacity, in any court having jurisdiction, for the purpose of having the enforcement of their order enjoined, and the same declared null and void, it then becomes their official duty to make defense thereto, by all proper and lawful means; and an offer to give money to one of them in order to induce him to give testimony in such ease, whether such testimony be true or false, is an attempt to influence a publie officer in the performance of his official duty. All the acts of such public service commissioner to be performed in relation to such suit, whether employing counsel, procuring evidence or giving personal testimony, are official, and not private or personal acts, (p.695).</p> <p>9. Criminal Law — Jurisdiction—State and Federal Courts.</p> <p>The jurisdiction of an offense by the state court is not impaired by the fact that the same transactions may constitute a distinct offense punishable under federal statutes, (p.697).</p> <p>10.Bribery — Attempted Bribery of Public Officers — Defenses:</p> <p>It is no defense to an indictment for attempted bribery of a public officer, that he was not a de jure officer; his official character can not be thus collaterally assailed; it is sufficient that he was a fie facto officer, (p.697).</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by J. P. Brogan, administrator, etc., against the Union Traction Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Executors and Aministrators — Conveyance of Beatty — Power of Bxeoulor.</p> <p>His interest in the estate of tire testator, as legatee and creditor, does not authorize the executor of a will giving him a power of sale of the real estate of which the testator died seized, to convey any portion thereof directly or indirectly to himself, in satisfaction of any debt the estate may Owe him. (p. 712).</p> <p>2. Trusts — Express Trust — Laches.</p> <p>Though laches will run against an express trust, courts of equity apply the rule, in such cases, less readily than in eases of constructive trusts, and rarely ever do so, unless the circumstances dis- ' close a defense in the nature of estoppel, sueh as intervention of the rights of third persons, loss of evidence, death of parties and witnesses, settlement or disavowal of the trust, acquiesced in by the cestui que trust. or the like. (p. 714).</p> <p>3. Executors and Administrators — Conveyance to Self — Setting, Aside.</p> <p>In setting aside a conveyance of trust property, made by an executor to himself, professedly in satisfaction of a debt due tt>' him from the estate, and decreeing a sale of the land, the court should provide for the payment of such debt, if any, out of the proceeds of the sale; but not until the deb)t shall have been established by proper evidence, (p. 715). :</p> <p>4. Same — Conveyance of Property — Setting Aside — Debt—Evidence.</p> <p>In such case, the executor’s sworn statement that the estate was indebted to him at the time of the conveyance, supplemented by a copy of an ex parte settlement showing, among other things, credits ' taken as for payments of sueh debts to himself, is not sufficient evidence thereof, (p. 715).</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Suit by Daniel Boone against the Hess Dustless Mining Machine Company and others. Prom decree for defendants, plaintiff appeals.</p>

<p>Error, to Circuit Court, Kanawha County.</p> <p>Action by Charles G-abbert and others against the William Seymour Edwards Oil Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>3. Pleading — Amended Declaration — New Cause of Action.</p> <p>So long as the identity of the cause of action- originally averred is preserved, an amended declaration is not demurrable merely because it introduces additional phases or circumstances of the same wrong complained of in the first pleading, (p. 722).</p> <p>2. Evidence — Conclusion of Witness.</p> <p>In an action by a husband for miscarriage of the wife, resulting from an assault upon him by another in her presence, she may in testimony state the primary facts and circumstances of the wrong and its physical consequences; but she ought not to be permitted; as a non-expert witness, to express an opinion or conclusion therefrom as to the actual cause of the miscarriage, (p. 723).</p> <p>3. Husband and "Wife — Action—Evidence.</p> <p>Where in the action for the miscarriage so complained of it is contended- that the husband provoked the assault, evidence of threats by defendant of personal violence to plaintiff-, made shortly prior to the injury, is admissible and relevant as evincing the mental attitude and aggressiveness of defendant, (p.724).</p> <p>4. Appeal and Error — Ground for Reversal — Exclusion of Evidence — ■ Direction of Verdict.</p> <p>If uncontradicted evidence adduced by plaintiff tends reasonably to establish the cause of action alleged, its exclusion and the direction of -a verdict for defendant constitute reversible error, (p. 724).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the Ladies’ Tailoring Company against A. I. Brown. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Counties — County Bond Issue — Submission to Vote — Subsequent Alteration of Road.</p> <p>Where a county court submits to a vote of the people a county bond issue, to permanently improve and make necessary changes in their location, certain county roads, described in its order of submission, and after the bonds are voted, adopts certain routes, where changes in the old roads are necessary to improve their grades, it may, thereafter, lawfully make such further changes in the routes previously adopted as will, in its judgment, be for the best interest of the public, provided such alterations are consistent with the description of the roads, given in the order submitting to a vote the bond issue, (p. 730).</p> <p>2. Same— Bond Issue — Order Submitted — Construction — “To” —■ “From.”</p> <p>Words must be given a reasonable construction according to the subject matter in relation to which they are employed; and the prepositions “to" and “from", used in describing a public road-as leading from the city of P. to the city of A., are not intended to describe the road as terminating at the corporate limits of said cities but as extending within them. (p. 731).</p> <p>3. Highways — Improvement of Streets — Expenditure of County Funds —Frooeeds of Bond Issue.</p> <p>The county court may lawfully expend, on a public road within an incorporated city in its county, a portion of the county fund derived from bonds voted by the people to improve certain roads, some of which extend into such city. (p. 731).</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by the city of Elkins against the Western Maryland Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by Pearl Melott against L. Y. West and others. From decree for defendants, plaintiff appeals.</p>

<p>1. Pleading — Declaration—Might to Amend.</p> <p>A declaration cannot be so 'amended as to introduce a new cause of action, after the appearance of the defendant, if he objects to the filing thereof in proper time and manner*- (p. 748).</p> <p>2. Appeal and Errcr — Objection to Filing Declaration — Sufficiency.</p> <p>Eesistance of a motion for leave to file such a declaration, followed by an exception to the grant of such leave and demurrers to the amended declaration and each of its counts, constitute a sufficient objection to.the filing thereof, (p. 750).</p> <p>3. Pleading — Amended Declaration — New Cause of Action.</p> <p>An amendment to a declaration by á personal representative, under the state statute giving a right of «etión for damages for the death of an employee, occasioned by the wrongful or negligent act of the employer, setting forth a right of action under the Federal Employers’ Liability Act, states a new cause of action, (p. 751).</p> <p>4. Commerce — Interstate Commerce — Carriers.</p> <p>A railroad company, the termini of whose lines are within the state, hauling to points within the state, under contracts of through carriage, cars loaded at points outside of the state and shipped therefrom by other railroad lines, as initial carriers, is engaged in interstate commerce, notwithstanding the train in which such cars are hauled is largely composed of oars of intrastate shipment, (p. 751).</p> <p>5. Same — Interstate Commerce — Railroad Employee — Student Fireman.</p> <p>A student fireman on such a train is engaged in interstate commerce, as an employee of the company, (p. %5-i).</p> <p>6. Master and Servant — Employment in Interstate Commerce — Stw dent Fireman — Pleading.</p> <p>Designation of the rank of ian employee, as that of student fireman, does not imply lack of duty, under his contract of employment, to render his employer active service in sueh capacity, and his employment implies sueh duty. (p. 754).</p>

<p>Error to Circuit Court, Raleigb County.</p> <p>Action by Antonio De Francesco against the Piney Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Justices op the Peace — Garnishment—“Appearamee”—Rehearimg.</p> <p>The mere tender to a justice, in garnishment on a judgment, before the return day of the notice thereof to the garnishee, of a paper purporting to be a list of property by the debtor claimed exempt from levy under execution, does not constitute an appearance by him to such proceeding, or preclude the right given him by §124, ch. 50, Code, to have a rehearing thereof, he not being served with the notice required by §120 of that chapter or otherwise participating therein.</p>

<p>Appeal and Error — Jmisdiotion—Amount Involved — Dismissal.</p> <p>This court will dismiss, as improvidently awarded, a writ of error to the judgment of the lower court, where the uneontradicted evidence, in. a purely pecuniary action, shows the amount in controversy to he less than one hundred dollars.</p>

<p>Mines and Minerals — Production of Oil and Gas — Draining of Adjoining Land's.</p> <p>G-, owning 55 acres of land, including all minerals therein, by deed conveyed the tract to 0, reserving only “one half of all the oil and gas found or developed” in and from the eastern half thereof. C’s title, by judicial sale, passed to R, who executed an oil and gas lease, containing the usual terms and conditions, to an'oil company, ■which drilled and operated thereunder two productive oil wells near the western boundary of the reservation. The lease, in legal effect, limited the operations of the lessee to the portions of the tract lying outside the reservation. But, although the wells so drilled and operated may, by reason of their proximity to the division line, in fact drain oil from the eastern half, sueh operations, in the absence of special circumstances or relations between the parties, afford no basis for a claim to a share in or an accounting for the oil so produced, or for a receivership thereof.</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Suit by the Clarksburg Northern Railroad Company against L. H. Morris, Sheriff, etc. From decree for plaintiff, defendant'appeals.</p>

<p>Error to Circuit Court, Doddridge County.</p> <p>Walter N. Flanagan was convicted of assault and battery, and brings error.</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Suit by H. H. Harper and others against the Virginian Railway Company. From decree for plaintiffs, defendant appeals.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Aetion by Harvey Cook against John R. Griffith. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Action by McNeer, Talbott & Johnson, partners, etc., against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>