Volume 77 — West Virginia Reports

<p>1. Costs — Appeal—Transcript of Testimony.</p> <p>In absence of statute or stipulation of the parties, money paid by appellant to a stenographer for a transcript of the stenographic notes of the testimony adduced in the trial court, preparatory to application for and hearing upon an appeal, is not recoverable as costs, (p. 2).</p> <p>2. Damages — Breach—Burden of Proof — Damages Recoverable. ■</p> <p>To entitle plaintiff to recover substantial damages for breach of contract, where the loss is pecuniary and susceptible of proof with approximate accuracy, he must establish the quantum of damages ■ with reasonable certainty. Where no sufficient data is afforded whereby a jury may definitely ascertain the compensation due for the breach, recovery therefor can be nominal only. (p. 4).</p> <p>3: Sales — Breach of Contract — Measure of Damages.</p> <p>For breach of contract for the sale of personalty, by non-delivery . of the property, the measure of damages ordinarily is the difference between the contract price and the market value of the articles at the time and place specified for delivery, (p. 5).</p> <p>4. Same — Breach of Warranty — Measure of Damages.</p> <p>Under such contract, for breach of warranty as to the quality of the goods, where they are accepted and retained by the purchaser, the measure of damages is the difference between the value which the articles sold would have had at the time of delivery if sound and corresponding to the warranty, and their actual value at that time with the defect, (p. 5).</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action, by H. D. Wiggin against the Marsh Lumber Company and others. From the judgment, plaintiff brings ■ error.</p>

<p>1. Counties — Cleric—Compensation—Bight—Money Unlawfully Paid— Becovery.</p> <p>The clerk of a county court is entitled to such compensation only as is provided by statute, and any monies paid to him for official services, out of the county treasury, upon orders issued therefor by the county court, without legal authority, is money unlawfully paid, and, by virtue of Secs. lOalll and 10aIV, Ch. 17, Code 1913, may be recovered in an action by the county court, (p. 22).</p> <p>2. Same — Unlawful Allowances to Cleric of County Court — Liability.</p> <p>The members of a county court who participate in making such unlawful allowances, as well ^s the clerk receiving the money, are individually liable therefor, jointly and severally. (p.'21).</p> <p>3. Same — County Court — Liability of Members — Unlawful Allowance—</p> <p> Ignorance of Law. </p> <p>In auditing public accounts and ordering their payment out of the public fund, a county court acts ministerially and not judicially, and is bound to take knowledge of the law; ignorance thereof will not excuse its members from personal liability, (p. 21).</p> <p>4. Same — Members of County Court — Unlawful Allowances — Criminal</p> <p>Intent — Pleading.</p> <p>Liability in such case, does not depend upon criminal intent on the part of the members of the county court, and it is not essential to aver that they acted corruptly, (p. 21).</p> <p>5. Same — Officers—Unlawful Payment of Compensation — Recovery Back.</p> <p>Assumpsit is an appropriate remedy in such ease. (p. 21).</p> <p>6. Attorney and Client — Authority of Attorney — Presumption.</p> <p>An attorney at law who brings a suit, being an officer of court, is presumed to have been authorized to do so by the suitor, until the contrary is made to appear, (p. 22).</p>

<p>1. Forcible Entry and Detainer — Might of Action — Person Forcibly Ejected.</p> <p>One in actual possession pf land, although without lawful right thereto, who has been forcibly ejected, may recover in an action of forcible entry and detainer even against the true, owner, (p. 23).</p> <p>2. Same — Bight of Action — Possession Before Ejection.</p> <p>His possession, however, must have been actual and substantial, not a mere scrambling to obtain possession, which may amount to nothing more than a trespass, (p. 24).</p> <p>3. Same — Bights of Owner — Expulsion of Intruder.</p> <p>The rightful owner of land, entitled to the possession thereof, may expel a mere intruder who is seeking to gain possession; provided he use no more force than is necessary, (p. 24).</p> <p>4. Adverse Possession — Extent of Possession — Color of Title.</p> <p>Actual possession of a part of a tract of land, under color of title to the whole, is possession of the entire tract as against any other claimant not in actual adverse possession, or not having the better title, (p. 24). '</p> <p>5. Forcible Entry and Detainer — Bight of Action — Person Forcibly</p> <p> Ejected. </p> <p>Such possession entitles a person, forcibly ejected from any portion of the land embraced within the bounds of his colorable title, to recover in an action of forcible entry and detainer against the party ousting him. (p. 24).</p>

<p>1. Attachment — Quashing—Motion to Dismiss — Non-resident Defendant.</p> <p>In an action to recover a debt, with attachment and service of process by publication against a non-resident defendant, his motion, after the court on his special appearance for that purpose has quashed the attachment and order of publication against him, to dismiss the case from the docket, is properly overruled. After such action the plaintiff has the right to retain the case on the docket for new process and a new order of attachment, if so advised, (p. 27).</p> <p>2. Appearance — General Appearance — Motion to Dismiss.</p> <p>The entry of such subsequent motion to dismiss, overruled, amounts to a general appearance in the action, and the defendant thereby submits himself to the jurisdiction of the court to pronounce a personal judgment against him in the action, (p. 28).</p> <p>3. Assumpsit, Action op — Declaration—Sufficiency.</p> <p>In an action of assumpsit, founded on defendant’s promise, failure to aver such promise in the declaration renders the declaration fatally defective, and a demurrer thereto for such defect should be sustained. (p. 28).</p> <p>4. Assignments — Action Toy Assignee — Pleading.</p> <p>In an action against the debtor by an assignee of the debt it is unnecessary to aver the date of the assignment or notice thereof to the defendant, (p. 29).</p> <p>5. Same — Declaration—Sufficiency.</p> <p>But the declaration in such action founded upon such assignment, which fails to aver non-payment to the assignor and to all other persons who at any time subsequent to the maturity of the debt were entitled to receive payment, is fatally defective on demurrer and the demurrer should be sustained, (p. 29).</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by the Jamison Coal & Coke Company against the Carnegie Natural Gas Company and others. From decree for plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by the State against Henry C. King and others. From the decree Henry C. King appeals.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Mary E. Harman against the Appalachian Power Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by the Mountain Park Land Company and others against Conley Snidow and others. From decree for defendants, plaintiffs appeal.</p>

<p>1. Divorce — Grounds—Desertion—Failure to Solicit Reconciliation.</p> <p>If by his conduct or demeanor a husband causes his wife to lose respect for him, or thereby alienates her affections, or destroys her mental quietude and comfort, and thereafter wilfully deserts and abandons her, without other cause therefor, no duty devolves on her to solicit reconciliation and renewal of actual cohabitation, (p. 61).</p> <p>2. Same — Desertion—Justification.</p> <p>Denial of sexual intercourse does not constitute cause for wilful desertion and abandonment, (p. 60)..</p> <p>3. Depositions — Prematurity in Talcing — Waiver of Objection.</p> <p>Depositions taken by defendant in support of an answer not then filed, plaintiff being then present and consenting thereto without objecting to the premature taking thereof, may upon the filing thereof, together with or subsequent to the filing of such answer, . be read on the hearing of the cause, submitted by agreement, as part thereof, though then objected to by plaintiff. His participation in such taking without objecting thereto for that reason operates as a waiver of the irregularity, (p. 59).</p> <p>4. Appeal and Error — Presentation for Review — Admission of Evidence.</p> <p>On the party complaining rests the duty of specifying the evidence by him deemed improperly admitted over his objection. When not so designated, the appellate court will not search for the objectionable testimony. (p.59).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Charles P. Reiniger against M. D. Pierey. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Evidence — Parol—Subscriptions—Corporate Sioclc.</p> <p>The general rule that evidence of previous or contemporaneous negotiations, stimulations, or terms of agreement, is not admissible to vary or add to á contract, is applicable to written contracts of subscription to the capital stock of a corporation, (p. 73).</p> <p>2. CORPORATIONS — Subscriptions to Capital Stock — Binding Effect— Consideration.</p> <p>Such a contract of subscription to the capital stock of a corporation, purporting to be made between the subscribers and each with the other, and with the corporation to be formed, and to bind them severally and not jointly, is supported by a sufficient consideration, and when accepted by the corporation organized pursuant thereto, is binding on the subscribers signing such contract, (p. 73).</p> <p>3.' Same — Powers—Purchase and Disposition of Land.</p> <p>Corporations organized under the laws of this state to purchase land and donate it, or otherwise dispose of the same, in order to promote industrial enterprises, are not prohibited by section 3, chapter 52, serial section 2813, Code 1913, providing that, "No corporation shall be incorporated for the sole purpose of purchasing, real estate in order to sell the same for profit.” (p. 74).</p> <p>4. Same — Subscription to Capital Stock — Pelease of Subscriber.</p> <p>If the objects and purposes of a corporation, as set forth in its certificate of incorporation, are radically and inconsistently different from the objects and purposes set forth in the preliminary agreement of subscription to its capital stock, a subscriber thereto, without his subsequent consent or agreement, is not bound to such corporation for the amount of his subscription, (p. 75).</p> <p>5. Same.</p> <p>A case in which the rule just stated is properly applicable to the relief of a subscriber to the capital stock of the plaintiff company, (p.76).</p> <p>(Williams and Lynch, Judges, absent.)</p>

<p>1. Indictment and Information — Offense Charged — Embezzlement— Larceny.</p> <p>Ob a common law -indictment for larceny, evidence of embezzlement is admissible and, on it, there may be a conviction of the latter offense, if the evidence is sufficient, (p. 82).</p> <p>2. Malicious Prosecution — Probable Cause — Evidence.</p> <p>If a criminal prosecution, as instituted, was not maintainable because commenced in the wrong county or the wrong court, but the facts and circumstances known to the prosecutor constituted probable cause for prosecution in the proper county or court, they are admissible in an action for malieious prosecution, brought by the accused, after termination of the criminal proceeding, to prove the existence of probable cause, (p. 81).</p> <p>3. Same — Instructions—Probable Cause — Evidence.</p> <p>In an action, for malicious prosecution on a charge of larceny, evidence of embezzlement of the property alleged to have been stolen, which may have occurred in a county other than the one in which the criminal proceeding was instituted’, is admissible, and it is reversible error, after admission thereof, to give instructions denying to it any legal effect, (p. 82).</p> <p>4. Same — Probable Cause — Instructions.</p> <p>Instructions to the jury in such a case, telling them they may ignore or disregard a fact which constitutes an element of probable cause or that such fact alon'e does not amount to probable cause, are erroneous and misleading, (p. 83).</p> <p>(Williams and Mason, Judges, absent.)</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Bill by the County Court of Taylor County against the City of Grafton and others. From a decree for plaintiff, the defendant, Baltimore & Ohio Railroad Company, appeals.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by Reuben Andei’son against Anthony Bowen, Mayor, etc., and others. From decree for plaintiff, defendants, A. S. Fleming and others appeal.</p>

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

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

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

<p>Appeal from Circuit Court, Monroe County.</p> <p>Suit by B. J. Bradley against E. D. Swope, agent, etc., and ■ others. From a decree for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Suit by Joseph W. Castle against Milford C. Gibson’s Heirs. From decree for defendants, plaintiff appeals.</p>

<p>1. Detinue — Plea of Non Detinet — Issues.</p> <p>In detinue the general plea, non detinet, as at common law, puts in issue the plaintiff’s right and title to the property sued- for, as well as the fact of its detention by defendant. The more modern English rule of practice to the contrary does not prevail in this state, (p. 122).</p> <p>2. Same — New Trial — Excessive Verdict — Judgment.</p> <p>Where on the trial of sueh action the value of the property sued for, as found by the jury, is excessive, but the verdict is otherwise correct, a new trial, if based on such erroneous finding, should be limited to that issue, and the verdict as a whole should not be'set aside and a new trial awarded on all issues. And, if in such ease the plaintiff -waives an alternative judgment for the value of the property the court should give judgment for plaintiff for the possession of the property alone, (p. 123).</p> <p>3. Appeal and Error — Presentation for Beview — New Trial.</p> <p>Where in such case the motion of defendant to set aside the verdict and award him a new trial, among others, is based on the ground of some supposed improper statements or remarks of opposing counsel, during the trial or in the course of the argument in the presence of the jury, in the absence of anything in the record showing any such statements or remarks were in fact made, or the character thereof, or the exceptions thereto, or the rulings of the court thereon, or that the ration of the court in awarding the new trial, was based thereon, this court -will not assume that the judgment, otherwise clearly erroneous, was justified on any such ground, (p.124).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Abbie Culp, administratrix, etc., against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Suit by Harry C. Millar against Cora L. Whittington and others. From an order overruling motion to quash attachment, defendants appeal.</p>

<p>1. Statutes — Construction—Repugnant Sections.</p> <p>An unnecessary implication arising from the terms of one section of a statute, inconsistent with express terms of another section relating to the same subject, yields to the expressed intention, and the two sections are not legally inconsistent or repugnant, (p. 146).</p> <p>2. Pleading — Answer—Time to Plead.</p> <p>Section 30 of eh. 125 of the Code, ser. sec. 4784, saying the plaintiff shall be entitled to a decree if the defendant fails to appear and answer the bill on the ,day specified in the order requiring him to answer, made after the overruling of his plqa or demurrer, is to be read in connection with section 53 of said chapter, ser. sec. 4807, giving the defendant right to answer at any time before final decree, and does not preclude such right in a defendant who has disobeyed a rule to answer within a prescribed time. (p. 146).</p> <p>3. Continuance — Right—Pleading—Evidence to Meet Issues.</p> <p>But the right to file an answer, under such circumstances, does not carry with it a right of continuance to enable the defendant to tahe evidence to sustain the issue made by the answer and replication thereto. (p. 146).</p> <p>4. Judgement — Pleading—Default—Failure to Answer in Time.</p> <p>■Reliance upon a local rule of practice relieving from duty to prepare chancery causes for submission at special terms constitutes no excuse for failure to answer within the period prescribed by a rule requiring the defendant to do so, and such default confers upon the plaintiff right to a decree at a special term, if his bill and evidence are sufficient, (p. 146).</p> <p>5. Husband and Wife — Gifts—Presumption—Rebuttal.</p> <p>Oral evidence dependent upon the recollection of witnesses, if clear and positive, is sufficient to rebut the presumption of a gift from a husband to his wife, of land paid for by him and conveyed to her. (p. 149).</p> <p>6. "Vendor and Purchaser — Rights of Purchaser — Owner of Equitable Title — Burden of Proof.</p> <p>A purchaser of land the equitable title to which is owned by a person other than the grantee in a deed, in order to prevail against the equitable owner, must prove the purchase was in good faith, without notice of the equitable right and for a substantial, valuable consideration, (p. 149).</p> <p>7. Trusts — Breach—Husband and Wife — Right to Equitable'Relief.</p> <p>A wife's admission of a stranger to the use and benefit of land bought by her husband and conveyed to her by his direction, pursuant to her oral agreement to hold the same for the use and benefit of herself and the husband, under a deed made by her to such stranger, is a breach of the trust and diversion of the property to a purpose inconsistent therewith, giving the husband right of resort to a court of equity for judicial declaration and definition of his interest in the land and annullment of the deed made in violation of the trust, (p. 151).</p>

<p>Error to Circuit Court, Doddridge County.</p> <p>Action by Virgil E. Ice against the County Court of Doddridge County. Judgment for defendant, and plaintiff brings error.</p>

<p>Mines and Minerals — Oil Lease — Construction.</p> <p>■ Where, in a. deed conveying oil and gas, upon a stated' consideration, it is further provided that the grantee is to pay the grantors an additional consideration “within ninety days after a well for oil and gas is drilled on the land and oil produced in. pipe line in pay ing quantities”, there is no obligation for the additional consideration because of the production of gas alone.</p>

<p>1. Attachment — Affidavit—Sufficiency.</p> <p>The affidavit for the attachment awarded in this case is sufficient to sustain the writ. (p. 159).</p> <p>2. Same — Bond—Motion for Additional Security — Affidavits.</p> <p>The motion for additional security on the attachment bond is not sufficiently sustained by affidavits filed for that purpose, (p. 159).</p> <p>3. Assumpsit, Action or — Common Counts.</p> <p>Items of an account, for board and use of teams and vehicles, furnished at the request and for the use and benefit of defendant, are provable under the common counts for goods and chattels furnished and work and services performed by plaintiff at such request, (p. 160).</p> <p>4. Evidence — Parol—Consideration.</p> <p>"While the sum stated in an agreement as consideration therefor is presumptive evidence that it is the real consideration, it is not conclusive. Such presumption may be overcome by parol evidence showing another or greater consideration, (.p. 160).</p> <p>5. Same.</p> <p>Nor is such proof violative of the rule against varying the terms and conditions of a written agreement, whether sealed or unsealed. (P-161).</p> <p>6. Escrows — Evidence—Bating of Beed — Condition Precedent.</p> <p>Though importing 'delivery as of its date, a deed may, by consent of the parties, be held in escrow, subject to delivery, upon some condition not therein expressed; and when either of them claims damages due to delayed delivery, defendant may, by parol proof, show the delay resulted from plaintiff’s default in the performance of the condition required. Such proof does not tend to alter or vary the material terms or conditions of the instrument, (p. 161).</p> <p>(Mason, Judge, absent.)</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Action by the Monongahela Tie & Lumber Company against Elizabeth Flannigan. Judgment for defendant, and plaintiff brings error.</p>

<p>Municipal Corporations — Trial—Demurrer to Evidence — Defective Streets — Damages.</p> <p>Upon tlie trial of tliis action, for injuries occasioned by defects in a public street, defendant, Offering no evidence, demurred to the proof introduced by plaintiff. The jury found for plaintiff if the law of the case be for him, and the court, sustaining the demurrer, entered judgment for defendant. Plaintiff assigns error. The street, where the injury sued for occurred', was dangerous and defective, and from such proof, though in part conflicting, the jury reasonably could have concluded that plaintiff was not aware of the condition of the highway, because theretofore he had not traveled it, and that, while exercising due care, he did not see, and, because of obstructions, was prevented from seeing, the defect in time to avoid the injury sued for. Hence, the demurrer should have been overruled and judgment thereon rendered for plaintiff. Such judgment is entered here.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by Matilda 0. Henry and others against Susan M. Hay-mond and others. From a decree for defendants, plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Suit by Kufus F. Lazzell and others against Leonidas H. Keenan and others. From a decree for plaintiffs, defendants appeal.</p>

<p>Error to Circuit Court, Nicholas County.</p> <p>Action by the State against J. D. Haynes. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Sarah Angrist against W. C. Burk. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Injunction — Dissolution—Damages.</p> <p>Where an action at law is pending for the recovery of money due on a, note, and the defendant flies a bill in chancery seeking to defeat the collection of the money sued for, and asks no affirmative relief, and an injunction is awarded staying the action at law, and the bill upon final hearing is dismissed and the injunction dissolved, and it appears that a hearing of the principal issues involved is abso-. lutely necessary to dispose of the injunction, expenditures for the hearing of the ease are proper to be allowed as damages caused by the injunction being wrongfully sued out. (p. 198).</p> <p>2. ' Same — Dissolution—Attorney’s Dees.</p> <p>Reasonable counsel fees may be included in estimating the damages in an action on an injunction bond, when the injunction has been improperly or wrongfully sued out, and the counsel fees were paid, or agreed to be paid, for procuring the dissolution of the injunction, (p, 201).</p> <p>3. Same — Dissolution—Damages.</p> <p>The costs decreed to be paid a defendant in a cause dissolving an injunction may be recovered in an action on an injunction bond. (p. 201).</p>

<p>Ap.peal from Circuit Court, Harrison County.</p> <p>Suit by Nimshi Nuzum and others against Gideon S. Nuzum and others. Suit dismissed, and plaintiffs appeal.</p>

<p>1. TAXATION — Property Subject to — Public Service Corporation.</p> <p>The personal property owned and operated by a public service corporation is assessable by the board of public works, without regard to the situs of such property, whether connected with or dissociated from the immediate use and operation of property employed by it in serving the public. And, when such property is assessed by the board of public works, the local assessing authorities can not lawfully alter .or modify the assessment so made. It is final and conclusive, unless appealed from in the manner and within the time provided in §94, ck. 29, Code. (p. 208).</p> <p>2. Same — Assessment—Statute.</p> <p>By .enacting chapter 29 of the Code, the legislature intended to devise and establish a symmetrical and harmonious general scheme or system for the assessment and taxation of personal and real property, to the end that each species of taxable property shall bear no more than its equal or just proportion of the governmental expenses; and for the administration and supervision of such scheme or system it appointed and designated the state tax commissioner and the board of public works, and on them conferred ample authority to supervise and administer such scheme or system; and due weight and credit must be accorded to the action of such officials in the performance of the respective duties so assigned to them, by all local assessing or taxing authorities, (p. 210).</p> <p>3. Same — Enforcement—Injunction.</p> <p>If such local authorities increase or modify any assessment or valuation made by the board of public works, and the taxes based on such increase or modification are sought to be enforced by the sheriff of any county by a sale of property levied on, equity will, at the suit of the owner, enjoin such enforcement, notwithstanding the failure of the owner to appeal from such re-assessment and revaluation in the manner and within the time allowed by chapter 29, Code. (p. 215).</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by M. W. Hefner and others against the Light, Fuel & Power Company. There was a judgment for plaintiffs, and defendant brings error.</p>

<p>1. Officers — Holding Different Offices — Notary Public — Cleric of Court.</p> <p>The offices of deputy clerk of a county court and notary public are not incompatible, and the clerk's acknowledgment to a tax deed, taken and certified by a notary publie who is also the clerk's deputy, is valid, (p. 224).</p> <p>2. Taxation — Tax Deeds — Invalidity.</p> <p>A tax deed is not void for any of the following reasons:</p> <p>(a) Because at the head of the page of the delinquent land book, on which is the owner's name, appear the printed words, “suspended for sale by the sheriff,'' when, on other pages just preceding it, those words are canceled, and the words, ‘ ‘ delinquent for non-payment of taxes, ’ ’ are written by the clerk in their stead.</p> <p>(b) Because the owner’s name in the assessment is spelled Joseph Freedman, and in the delinquent list and tax deed Joseph Fredman, instead of Joseph Friedman, the correct spelling of it.</p> <p>(c) Because the estate of the owner is not mentioned in the delinquent list or in the sales list.</p> <p>(d) Because the delinquent list was allowed by the county court at a special term, the notice whereof contained no reference to the proposed filing thereof by the sheriff.</p> <p>(e) Because the sheriff’s affidavit to the delinquent list was made on the samé day the county court allowed the list.</p> <p>(f) Because it does not affirmatively appear that the sheriff posted and published the delinquent list for two weeks prior to the time of presenting it to the county'court for examination, as required by See. 23, Ch. 30, Code 1913.</p> <p>(g) Because the tax sale was made by the sheriff’s deputy. The deputy sheriff can return land delinquent and sell same for taxes.</p> <p>(h) Because it does not affirmatively appear that the sheriff offered to sell an interest in a town lot before selling it as a whole, (p.225). •</p>

<p>1. Tenancy in Common — Tax Sale — Heirs of Purchaser — Co-tenants— Purchase of Outstanclmg Title.</p> <p>Where the purchaser of land at a sale thereof for delinquent taxes, dies before the expiration of the year when by section 19, chapter 31, Code 1913, he would have been entitled to a deed; but after his death a deed is made to him, his heirs and assigns, and received by his heirs, then and for five years from the date of sale, by section 24, of said chapter, entitled to a deed in their own names, and which deed is recorded, the land taxed to the grantee, and the taxes paid thereon for many years by said heirs, living on an adjoining tract, both tracts originally a part of the same tract, and they in good faith continuing to claim the land, and to pay the taxes thereon, the purchase by one of said heirs, during such relationship to' his coheirs, of an outstanding title to said land, will, at the election within a reasonable time by the other heirs to contribute to the cost and expense of such purchase, enure to the benefit of all the heirs and be subject to partition as part of the landed estate of the deceased tax purchaser, (p. 232).</p> <p>2. Same — Tax Sale — Co-heirs of Purchaser — Purchase of Outstanding Title.</p> <p>But the co-heirs of the purchaser of such outstanding title must malte their election within a reasonable time, and must pay to the purchaser in cash their just shares of the costs and expenses incurred by him, and it is error for the court on decreeing them their right to participate in such purchase to simply ascertain the amount to be paid by them and charge the same as a lien in favor of the purchaser, on the interests in the land so decreed, (p. 235).</p> <p>3. Partition — Outstanding Title — Purchase by Co-heirs — Decree.</p> <p>A proper decree in such case, after decreeing such rights to the co-heirs, and 'fixing the amount to be paid by them, would be to appoint a reasonable time within which the sums so decreed shall be paid, and if not then paid, that they be thereafter barred from participating in such purchase of the outstanding title, [p. 235).</p>

<p>Error to Circuit Court, Cabell County. •</p> <p>Action by L. Sehreiber & Sons Company against the Miller Supply Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Andy Sixo was convicted of violating the prohibition law, and brings error.</p>

<p>Error to Circuit Court, Upsliur County.</p> <p>Action by W. L. Burner against W. B. Nutter and others. Judgment for defendants on appeal from a justice’s court, and plaintiff brings error.</p>

<p>1. Partition — Report of Partition in Kind — Appeal.</p> <p>A report of partition in kind, on its face evincing no unfairness or injustice in allotments made by commissioners appointed for the purpose, will not be disturbed on appeal, unless it is affirmatively shown by satisfactory proof that the partition so made is inequitable, (p. 263).</p> <p>2. Same — Separate Tracts — Division Among Tenants in Common.</p> <p>A partition of two separate tracts of land among the three tenants in common thereof is not erroneous, merely because to' one of them is assigned a portion of each parcel, instead of a single boundary in one tract, when there is no evidence that such allotment is prejudicial to his eo-owners. (p. 263).</p> <p>3. Same — Tenants in Common — Proceeds Used for Improvements.</p> <p>"Where three tenants in common of farm lands, for their joint maintenance and support, share equally the issues and profits of the common property, and the two in active charge of the lands apply the residue of the returns therefrom, together with earnings elsewhere made by them, to the establishment and maintenance of substantial and valuable improvements thereon, without objection by their co-owner, who is not ousted from the management or control of the property or excluded from its benefits, she, in a suit by her for partition, is not entitled to a decree against them for a share of the issues and profits so used and applied, of the benefits of which she received her equitable proportion in the partition proceeding. (p. 264).</p>

<p>Original mandamus by the State, on the relation of L. P. Graham, against the City of Hinton and others.</p>

<p>* 1. Intoxicating Liquors — Unlawful Advertisements — Non-resident— Criminal Responsibility.</p> <p>A liquor dealer residing and doing business in another state, who, by the agency of the United States mails,' sends into this state unsolicited and here circulates or distributes to prospective customers price lists, circulars and order blanks, advertising his liquors for sale and which he proposes to ship into this state to them, and which advertising matter by such agency is actually delivered to a citizen of this state, is guilty of a violation of section 8, chapter'13, Acts of the Legislature of 1913, known as the Yost Law, and may ,be here indicted and punished as provided by said act. (p. 274).</p> <p>2. Commerce — Intoxicating Liquors — Unlawful Advertisements — Validity of Statute.</p> <p>So construed, said act, by virtue of the acts of Congress known as the Wilson Act and the Webb-Kenyon Act, does not infringe the commerce clause of section 8 of article 1 of the federal constitution, (p. 274.)</p> <p>3. Constitutional Law — Privileges and Immunities — Intoxicating Liquors.</p> <p>Nor does the provision of section 8 of said' act of 1913, so construed and applied, violate the “privileges and immunities” clause of the Fourteenth Amendment to the federal constitution, (p. 281).</p>

<p>1. Deeds — Habendum Clause — Construction and' Effect.</p> <p>In the habendum clause of a deed is found this language: To have and to hold the aforesaid' tracts or parcels of land with the appurtenances unto the said W. D. G. his heirs and assigns forever with the express understanding that the said B. G. is to have the privilege of locating and keeping open a wagon road through said land”, describing the route of the road. The said B. G. was not a party to the deed, and no such road existed at the time. Heidi: That this privilege to B. G. to locate and keep open this road is a limitation to the habendum clause to the extent only of conferring on B. G. a privilege to be exercised by himself, and is not a reservation by way of a reddendum clause, (p. 285).</p> <p>2. Easement — “Way of Necessity.’’</p> <p>A way of necessity exists where land granted is completely en-vironed by land of the grantor, or partially by his land and the land of strangers. The law implies from these facts that a private right of way over the grantor’s land was granted to the grantee as appurtenant to the estate, (p.285).</p> <p>3. Same — Acquisition Tjy Acquiescence and Use — Private Way.</p> <p>Use of a private way from one’s land over land of another for ten years with the acquiescence of that other will confer a right to such way, but, if the owner does not acquiesce therein, but denies the right of way, such use wall not confer the right of way. (p. 288).</p> <p>(Lynch, Judge, absent.)</p>

<p>Error to Circuit Court, Boane County.</p> <p>Habeas corpus by S. W. Lawrence against Charles A. Barlow, Superintendent, etc., and others. Judgment for defendants, and petitioner brings error.-</p>

<p>1. Mikes and Minerals — Oil and Gas Lease — Accounting—Parties— Assignees.</p> <p>Where lessors in' an oil and gas lease on a tract of land containing 115 acres, identified by adjoiners, and consisting of two or more . parcels conveyed by different grantors, - executed sealed instruments purporting to assign all the delay rentals and oil and gas royalties reserved by them in productions from the leased premises, of the execution of which assignments they notified the lessee and thereby-authorized it to pay all such rentals and royalties to the assignees, “reserving nothing” to themselves therein, and which royalties and’ rentals accruing under the terms of the lease from the entire tract, for several years thereafter, the lessee, pursuant to such authorization, caused to be paid and delivered to the assignees, the claimants under such assignments are necessary parties to a bill by the lessors or those in privity "with them, claiming adversely to such assignees, rvhereby they seek an adjudication limiting the oil and gas interest so assigned to one only of the several parcels constituting the leased premises, and an accounting to plaintiffs for all the rentals and: royalties chargeable to other parcels thereof, (p. 301).</p> <p>2. Parties — Necessary Parties — Interest in Litigation — Equity.</p> <p>■Whenever, in a suit in equity, it appears that persons not parties to the litigation may have, or claim, direct interests in the subject matter involved, or that in their absence the rights of the parties thereto can not fairly be determined or further litigation in respect thereof Anally foreclosed by an adjudication therein, the court ■ ordinarily ought in such circumstances, when seasonably requested by parties to the cause, to require plaintiffs to convene them, that justice may be done, performance of the decree rendered safe to those compelled to obey it, and further litigation in respect thereof thereby foreclosed, (p. 302).</p> <p>3. Appeal and Error — Decisions Appealable — Opinion in Interlocutory Order.</p> <p>Except when otherwise provided by statute, a deeree, to be appeal-able, generally must adjudicate all questions raised in the cause by proper pleadings or otherwise, settle the principles on which relief is to be administered, and leave nothing undetermined except the necessary application of such principles to the facts of the case in respect of the rights of the parties thereto in relation to the subject matter of the litigation. A mere expression of an opinion in an interlocutory order, stating reasons for rulings on exceptions to an answer, not replied to, and not purporting to settle all the principles of the cause, is not an appealable order, .(p. 303).</p> <p>4. Same — Decree Adjudicating Bights of Third Persons — Beversal.</p> <p>This court will reverse a decree adjudicating the rights of persons not parties to the cause, when it is reasonably apparent they are prejudiced by such adjudgication. (p. 303).</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Action by W. E. McCreary againts the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CARRIERS — Shipment of Goods — Liability for Freight.'</p> <p>A consignor who signs a bill of lading on his own account, and' not as agent for the consignee, is liable to the carrier for the freight, although title to the goods passed to the consignee on delivery to the carrier, (p. 311).</p> <p>2. Same.</p> <p>Neither the words, “Freight collect from consignee," written in the face of'a bill of lading, nor a printed condition on the back thereof, stating, “The owner or consignee shall pay the freight,” are alone sufficient to relieve the consignor from liability. Such provisions are'for the benefit of the carrier and do not constitute a special contract with the consignor, (p. 312).</p> <p>3. Same — Shipment of Goods — Liability for Freight — Release.</p> <p>The carrier does not, by waiving its lien and delivering the goods to the consignee before payment of freight, release the consignor from liability. In the absence of a special contract, both consignor and consignee, who has accepted the goods, are liable to the carrier, (p. 312).</p> <p>4. Same.</p> <p>After a sale and delivery to the carrier by the consignor, the owner may reconsign the goods without releasing the consignor, provided his liability is not thereby increased, (p. 313).</p> <p>5. Same.</p> <p>The consignee’s being under bond to the terminal carrier to pay the freight, does not affect the consignor’s liability on his contract with the initial carrier for the joint freight charges, (p. 313).</p>

<p>1. Indictment and INFORMATION — Carrying Weapons Without License —Duplicity.</p> <p>An indictment for unlawfully carrying a pis.tol without a state license is good notwithstanding it charges in a single count that, at the same time, defendant carried' all the other weapons forbidden by the statute to be carried, (p. 315).</p> <p>2. Weapons — Carrying Without License — Burden of Proof.</p> <p>Although it is necessary, in such case, for the indictment to aver the want of a state license, the burden is on defendant to prove he had a license, (p. 315).</p> <p>3., Same — Bight to Carry — Change of Domicile.</p> <p>A person, to whom a pistol is given at his home, has no right, after changing his domicile, to carry it about his person from the place of gift to another domicile, (p. 316).</p> <p>(Ltnci-i, Judge, absent.)</p>

<p>1. Justices or the Peace — Appeal—Jurisdiction—Set-Off and Ccmn-ter-claim.</p> <p>A defendant in an action before a justice cannot, by filing a fictitious counterclaim or set-off thereby raise the amount in controversy so as to bring the case within the appellate jurisdiction of the circuit court, (p. 318.)</p> <p>2. Same — Appeal—Fictitious Set-Off and Counter-claim — Jurisdiction.</p> <p>Where by filing such claim or set-off a defendant succeeds in obtaining an appeal from the judgment of a justice and on which he has offered no proof either before the justice or on the trial in the circuit court, and the fictitious character of such counter-claim or set-off is so made to appear, the jurisdiction of the circuit- court is thereby ousted, and the appeal should be dismissed as improvidently awarded, (p. 319.)</p> <p>3. Costs — On Appeal — Judgment of Justice of the Peace.</p> <p>In such a case the judgment of the circuit court adjudging costs against the plaintiff and appellee is absolutely void and enforcement thereof may be' prohibited, (p. 319.)</p> <p>(Lynch, Judge, absent.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Samuel Burton against the War Eagle Coal Com-. pany. From judgment for plaintiff, defendant brings error.</p>

<p>Appeal from-Circuit Court, Tucker County.</p> <p>Suit by the State and others against J. H. Moore and others. From deeree for plaintiff, defendants appeal.</p>

<p>1. Honey Paid — Might to Meeover — Payment of Another’s Debt.</p> <p>Money paid by one person on tlie debt of another, at his request, or by his procurement, may be recovered from him, in assumpsit on the common count for money paid, laid out and expended for his use and benefit and at his request, and the method or form of the transaction is immaterial, if it amounts to payment in law or is so treated by the creditor, (p. 340).</p> <p>2. Appeal and Error — Presentation Below — Evidence.</p> <p>Errors in the rulings of the trial court upon the admission and rejection, of evidence are deemed to have been waived, if they are not made grounds of the motion for a new trial, nor subjects of special bills of exception, showing the evidence and the rulings of the court thereon, (p. 340).</p> <p>3. Same — Presentation for Meview — Instructions.</p> <p>To obtain a review of the action of the trial, court, in refusing to give certain instructions at the instance of the complaining party, the record of the cause must show, by bills of exceptions or otherwise, what instructions were given at his instance, so as to enable the appellate court to determine whether any error has been committed in the rulings. In this instance, as in most others, there is a presumption in favor of the correctness of the rulings of the trial court, which prevails unless rebutted by the record, (p. 340).</p> <p>4. Same — Presentation for Meview — Bill of Exceptions — Instructions.</p> <p>A bill of exceptions, showing the giving of one instruction for the plaintiff and the refusal of five ashed for by the defendant, without more, is deemed and held not to disclose all the rulings of the court upon the requests for instructions, (p. 340).</p> <p>5. Evidence — Judicial Admissions in Another Case — Avoid'ance of Effect.</p> <p>Judicial admissions made in one case are evidence in another, but are not conclusive, and the effect thereof may be avoided by proof of their having been made under a misapprehension of fact. (p. 343).</p> <p>6. New Trial — Issues Dependent on Conflicting Evidence — Province of Jury.</p> <p>Issues dependent upon conflicting oral evidence and uncontroled by any admitted or clearly established facts, fall within the province of the jury, and its finding thereon cannot be disturbed by the court, (p.343).</p> <p>7. Estópele — Defense—Misrepresentation—Injury.</p> <p>One who has wrought injury to himself by a' misrepresentation which caused another to do the injurious act is estopped from complaining of such, act, in an action brought by such other person against.him. (p. 344).</p> <p>8. Assumpsit, Action op — Declaration—Variance—Time.</p> <p>The time laid in a declaration in assumpsit, containing only the common counts, is immaterial and may be departed from in the . proof, (p.344).</p> <p>(Lynch and Mason, Judges, absent.)</p>

<p>Error to Circuit Court, Tucker County.</p> <p>E. E. Springer was convicted of unlawfully playing cards in a public place or a place of public resort, and brings error.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Action by H. M. Taylor against Campbell, Cooper & Co. and others. Judgment for plaintiff, and defendant Fidelity & Deposit Company of Maryland brings error.</p>

<p>Error to Circuit Court, Webster County.</p> <p>Action by the Belle-Mead Lumber Company against James C. Turnbull and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Process — Amendment—Right.</p> <p>When an aetion of assumpsit has been remanded to rules with leave to file an amended declaration, and summons issues requiring the defendant to appear and answer a declaration, and an amended declaration is filed, the court may permit the plaintiff to amend the writ at the bar of the court by inserting "amended declaration” in place of the word "declaration”, without new process, (p. 358).</p> <p>2. Bills and Notes — Norn-Negotiable Note — Indorsement in Blanh— Liability of Indorser — Pleading.</p> <p>Where a person signs his name, in blank, on the back of a nonnegotiable note before delivery, he may be held as maker or guarantor, at the election of the holder, in the absence of a special agreement. And when the payee seeks to charge such endorser of a non,-negotiable note, endorsed before delivery, he must allege that the defendant endorsed the same with intent to become liable as guarantor or maker, according to the fact. (p. 359).</p> <p>3. Same — Pleadmg—Joint Maher.</p> <p>In a declaration by a payee on a non-negotiable note, the note is set out in haee verba, and it is alleged that the note was signed on the back thereof by L. B. C., “whereby the said W. G. 0. (the maker) and L. B. 0. jointly and as co-obligors agreed to pay”, "and being so liable the said W. G. 0. and L. B. C., in consideration thereof, on the said 8th day of August, 1907, (the date of said note), undertook and promised the Said plaintiff that they would pay him the said sum of six hundred dollars” (the sum natned in the note). This is a sufficient allegation to charge L. B. 0. as joint maker of such note. (p. 359).</p> <p>4. Pleading — Right to Amend — Cause of Aetion.</p> <p>Allegations in a declaration may be changed and others added, provided the identity of the cause of action be preserved; but amendments are not allowable which are inconsistent with the nature of the pleadings, or change the cause of action, (p.359).</p> <p>5. Judgment — Mes Judicata — Plea—Trial.</p> <p>A plea of former judgment on the same cause of aetion in bar of plaintiff’s suit, should be tried by the court by an examination and inspection of the record, (p. 361).</p> <p>6. Same — Effect as Evidence — Mes Judicata.</p> <p>A judgment between, the same parties upon the same point, which, if pleaded, would have been a perfect bar, is, .when used as evidence under the general issue, not conclusive on the jury, but only evidence to be weighed by them. (p. 361).</p> <p>7. Same — -Mes Judicata — Plea—Defense.</p> <p>A defendant has the right to elect whether he will present his defense of former adjudication to plaintiff’s suit, by way of a special plea of res judicata, or rely upon the defense as evidence on the trial under a plea of the general issue, (p. 361).</p> <p>8. Appeal and Eeeoe — Presentation for Review — Plea.</p> <p>Where a plea is tendered, and objection thereto is sustained, and an exception is taken, and the record shows the ruling and exception and identifies the plea, such plea is a part of the record, (p. 360).</p>

<p>1. Appeal and Error — Verdict—Evidence.</p> <p>Where two theories of a ease are presented by the evidence, each supported by sufficient evidence to sustain a verdict, and the ease has been fairly submitted to the jury by instructions upon each of the theories, the verdict of the jury will not be set aside, (p. 371).</p> <p>2. Trial — Refusal of Instructions Covered.</p> <p>Where instructions already given by the court cover the entire case, and properly submit it to the determination of the jury, the court may refuse other instructions tendered, which would not furnish additional aid to the jury in reaching a. proper verdict, (p. 372).</p> <p>3. Same — Instructions—Construction as a Whole.</p> <p>The instructions given to the jury must be taken together, and read and considered as a whole, taken in connection with the pleadings and the evidence, (p. 372).</p> <p>4. Same — Instruction—Evidence.</p> <p>An instruction should not be given unless relevant, and it is not relevant .unless there was evidence tending to prove the facts on which the instruction is based, (p.372).</p>

<p>1. Bills and Notes — Liability of Maher — Joint Payee.</p> <p>A negotiable note payable to the maker and another jointly, not partners, indorsed in blank by the maker, does not imply a promise by the maker to pay sueli joint payee, (p. 373).</p> <p>2. Same — Joint Possession — Presumption.</p> <p>Possession of such note by either joint payee is presumptively possession by both, (p.375).</p> <p>3. Same — Liability of Maher — Joint Payee — Light of Action*</p> <p>A declaration on such note by one joint payee holding the note, indorsed in blank by the other who is also the maker, is bad on demurrer, (p. 375).</p> <p>4. Appeal and Error — Decision on Appeal — Puling on Demurrer.</p> <p>A final judgment for defendant upon issues joined upon a bad declaration, to which a demurrer was interposed and overruled, will not be reversed for error in overruling the demurrer, when it plainly appears from the averments and proof that the declaration can not be amended without introducing a new cause of action. In such case plaintiff is not prejudiced by an affirmance, because the judgmeat is no bar to a cause of aetion in nowise pleaded, or otherwise in issue, (p.376).</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Suit by Will M. Smith against M. Z. White and others. From decree for plaintiff, defendants appeal.</p>

<p>1. Specific Performance — Mights of Parties — Determination.</p> <p>The general rule is that the rights of the parties as they stand at the date of the decree of specific performance govern, and not as they stood at any preceding time. (p. 393).</p> <p>2. Insurance — Contracts—Construction.</p> <p>The rule of strict construction is especially applicable to the contracts of insurance, (p. 394).</p> <p>3. Same — Policy—Forfeiture Provision — Incumbrance.</p> <p>A mortgage or deed of trust purporting to secure an obligation not yet effective at the time of the loss is not an encumbrance of personal property by chattel mortgage, voiding a policy of insurance thereon, in the form prescribed by statute, containing such condition of forfeiture, (p. 394).</p> <p>4. Same.</p> <p>Nor will an unexecuted contract to pledge such- obligation as collateral for a pre-existing debt, constitute such encumbrance so as to avoid a policy of insurance, (p. 394).</p> <p>5. Same — Pleading—Action on Policy — Admissions—'Conclusiveness.</p> <p>Admissions in pleadings or in proofs of loss of the fact of such pledge, not consummated by performance of the condition of the contract, are not conclusive, and may be explained in connection with proof of the facts pertaining thereto, (p. 396).</p> <p>6. Same — Policy■—Condition Against Incumbrances — Breach.</p> <p>An agreement to pledge such an obligation, or an intent to pledge the same on condition, are not sufficient to constitute such pledge unless the condition of the contract has been complied with. (p. 397).</p>

<p>Error to Circuit Court, Wyoming County.</p> <p>Action by W. S. Toler against IT. W. Sanders and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Mineral County.</p> <p>Action by R. L. Davis and others against the Twin Mountain & Potomac Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Nicholas County.</p> <p>Suit by the Moneasen Improvement Company against the Flynn Lumber Company. From a decree for defendant, plaintiff appeals.</p>

Proceedings by Orland H. Booten against A. C. Pinson, by G-ail T. Dudgeon against John S. Hall, and by A. C. Pinson, by John S. Hall, and by Tunia Nunemaker and others against O. H. Booten and others. Decisions for plaintiffs in the two cases first mentioned, and defendants bring error;-and decisions for defendants in the three cases last mentioned, and plaintiffs bring error.

<p>Petition by James Beck against James A. Cox, Mayor, and others, for writ of prohibition.</p>

Proceedings under the Workmen’s Compensation Act by. Clara A. Archiband to obtain compensation for death of her husband from accident in the course of his employment with the Sehofield-Cowl Company. Compensation was denied by Lee Ott, the State Compensation Commissioner, and the applicant appeals. ,

<p>Error to Circuit Court, Randolph County.</p> <p>Action of trespass on the case by ~W. A. Doane against the Parsons Pulp & Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Municipal Cokporations — Powers—Paving of Sidewalks.</p> <p>The council of any town subject, to the provisions of Chapter 47 of the Code, -has authority under Section 28 of that chapter “to order the sidewalks, footways, cross-walks, drains and gutters to be curbed and paved and kept in good order, free and clean, by the owners or occupants thereof, or of the real property next adjacent thereto.” (p.464).</p> <p>2. Paving Assessment — Liability of Property Owner.</p> <p>By Section 34 of Chapter 47, it is provided that, “If the owner or occupant of any sidewalk, footway or gutter, in said city, town or village, or of the real property next adjacent.thereto, shall fail or refuse to curb, pave or keep the same clean, in the manner or within the time required by the council, it 'shall be the duty of the council to cause the same to be done at the expense of the city, town or village, and to assess the amount of such expense upon such owner or occupant, and the same may be collected by the sergeant in the manner herein provided for the collection of the city, town or village taxes. ” (p.464).</p> <p>3. Municipal Corporations — Paving of Sidewalks — Costs—Liability of Owners.</p> <p>Acting on the authority conferred upon it by Sections 28 and 34 of Chapter 47 of the Code, the common council adopted an ordinance, requiring the owners and occupiers of real estate on the west side of Elk Street, between Third and Seventh' Streets, to make brick or cement pavements on the sidewalks next adjacent to their property, according to the provisions of the ordinance and within fifteen days after notice of the ordinance shall have been served; and providing further that, “In case any owner or occupier of the real estate hereinbefore mentioned shall refuse or fail to make the said pavement as herein required, the Superintendent of Eoads, Streets and alleys shall cause the same to be done, and report the itemized cost of the same to the Council, whieh cost shall be charged to the said owners or occupier, and payment thereof enforced as town taxes are enforced..” Held': That the town could not under this ordinance, nor under the statutes authorizing the ordinance, charge the owner of the real estate with expenses for grading, excavating, or stonework done in preparing the sidewalk for the pavement or curb, (p.465).</p> <p>4. Same — Paving of Sidewalks — Assessment—Liability of Owner.</p> <p>An assessment made by a town council, against a lot owner, charging him with the expenses for excavating, curbing, paving and stonework, as one entire account, done by the town under Sections 28 and 34 of Chapter 47 of the Code, is void, although a part of the account would be a valid’demand if the owner of the lot had been given the opportunity to do the work and had refused or failed to do so. Before such an assessment can be binding on the lot owner or become a lien on his property, he must have had an opportunity to do the work w'hieh he could be required to do, and have refused or failed to do so. (p. 465).</p>

<p>Habeas corpus by Charles Page against J. F. Johuson, Sheriff, etc.</p>

<p>1. Set-oee and Counterclaim — Action for Debt — Account Acquired! After Commencement of Action.'</p> <p>In an action for a debt, defendant may at the trial offer and have allowed against such debt any payment or set-off which is so described in his plea or in his account filed therewith before the trial as- to give notice of its nature, whether he acquired the account before or since the commencement of the action, (p. 476).</p> <p>2. Account Stated — What Constitutes — Agreed Account — Promise to Pay' Balance.</p> <p>Generally, where persons who have had previous transactions of a monetary character agree that the account representing the transactions and the balance shown are correct, and the debtor expressly or impliedly promises to pay such balance, the account thereby becomes an account stated, (p. 473).</p> <p>3. Same — Estoppel—Presumption of Accuracy — Bebuttal—Durden of Proof.</p> <p>An account stated does not create an estoppel; and, while it affords presumptive evidence of the accuracy and correctness of the charges therein stated, such presumption may be rebutted by showing fraud, mistake or error in its execution or procurement; unless the position of the opposite party has been, altered to his prejudice. And the burden of proof rests on him who challenges the verity of such account, (p. 475).</p> <p>4. Same — Account Made by Commissioner Under Order of Deference— Effect as Evidence.</p> <p>An account stated by a commissioner under an order of reference entered in an action at law, while not conclusive against the parties, will be treated as prima facie correct; and on him who challenges its accuracy or justness devolves the duty of showing it to be unjust or inaccurate, (p. 475).</p> <p>5. Interest — Allowance—Unliquidated Claim.</p> <p>Ordinarily, interest will not be allowed on an unliquidated account or claim, except from the time the amount due is ascertained judicially or by the act of the parties, (p.'478).</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by S. A. Hardman against M. M. Brown and others. Judgment for plaintiff, and defendants bring error.</p>

Proceedings under the Workmen’s Compensation Act by Daisy Gooding to obtain compensation for the death of her husband while employed by the Davis Coal & Coke Company. Compensation was denied by Lee Ott, the State Compensation Commissioner, and the petitioner appeals.

<p>1. Principal and Agent — Implied Power of Agent.</p> <p>Authority'vested in an agent to accomplish stated results, for and on hehalf of Ms principal, includes by implication power to do whatever is reasonably necessary to the effectuation thereof, in the usual and customary way. (p. 496).</p> <p>2. Same — Implied Authority of Agent — Supplies Furnished to Contractor.</p> <p>Authority in an agent to conduct a business of which the making of working contracts is an incident, has implied power to make an original promise to a stranger to pay for supplies furnished by him to contractors for the work, as a means of enabling them to perform their contracts, (p. 496).</p> <p>3. Guaranty — Promise to Pay Debt — Original or Collateral Promise— Determination.</p> <p>Whether an oral promise to pay one person for merchandise delivered to another, is original or collateral, depends upon the intention of the parties, to he ascertained from their situation, and conduct, the words of the promise and all the circumstances attending the transaction, (p. 496).</p> <p>4. Trial — Instructions—Ignoring Evidence.</p> <p>Instructions given on the trial of such an. issue, requiring the- jury to make their finding depend upon certain inconclusive facts constituting only a part of what transpired between the parties, are erroneous and prejudicial, (p. 497).</p> <p>'5. Depositions — Use by Opposite Party — Admissions.</p> <p>A party desiring to avail himself of admissions found in depositions taken by the opposite party, should not be required to read such depositions in their entirety, but only so mueh thereof, in addition to the admissions, as pertains to, and qualifies or explains, them, (p. 498).</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by Koontz, Phillips & Stamm, partners, etc., against Charles E. Mylius and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Counties — Suit ~by County Court — Pleading■—Parties.</p> <p>The signing of a bill by the prosecuting attorney of a county on behalf of the county court thereof, none of the allegations contained therein purporting to be made by the county court, is-not sufficient to make it the plaintiff to such bill. (p. 507). ’</p> <p>2. Equity — Parties—Sight to Sue — Interest.</p> <p>A party having no interest ean not maintain a suit in equity on behalf of a party having the only substantial interest, (p. 507).</p> <p>3. Sheriffs and Constables — Suit on Official Bond — Parties.</p> <p>See. 2, Ch. .10, Code 1913, does not authorize a suit in equity to be brought, in the name of the State, on a sheriff’s official bond, for the benefit of a county court. Such suit must be brought by and in the name of the county court, (p. 507).</p> <p>(Lynch, Judge, absent.)</p>

<p>Separate.petitions in mandamus by Dam McKinzie, by N, L. Chaneey, by Young Kennedy, and by A. B. Hatfield against A. B. Hatfield, Mayor, etc., and others.</p>

<p>Appeal from Circuit Court. Doddridge County.</p> <p>Suit by L. -H. Barnett, committee, etc., against G. G. Great-house and others. From decree for plaintiff, certain defendants appeal.</p>

<p>Error to- Circuit Court, Tyler County.</p> <p>Action by the Board of Education of Ellsworth District against the County Court of Tyler County. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Contracts — Restraint of Trade.</p> <p>A contract between the seller and purchaser of an established shop or business, which binds the seller, as incident to the sale and purchase of his property, not to set up and engage in a rival business within the neighborhood thereof or in such close proximity thereto as to detract from the natural patronage of such shop or business, is not void on grounds of public policy, as constituting an unreasonable restraint of trade, (p. 535). r</p> <p>2. Same — Agreement to Abstain From Business — Enforcement.</p> <p>In such eases the test in determining the validity or invalidity of the contract is the reasonableness of the restraint imposed, and it will be enforced as to time and space only to the extent necessary to protect the rights of the parties and the interest of the public therein, if any. (p. 535).</p> <p>3. Same — Restraint of Trade — Validity.</p> <p>There is a distinction between those eases where by the terms of the contract the purchaser is put entirely out of business, and those in which the restraint is imposed as a mere incident to the sale and transfer of one’s business to another, and to protect the purchaser therein. The former class are generally condemned by the courts, the latter held reasonable, valid and enforceable, (p. 535).</p> <p>4. Same — Agreement to Refrain From Business — Construction.</p> <p>Though such a contract be not in terms limited in time or space, it will be construed as intending only such sufficient time and'reasonable space as may be necessary to protect the purchaser in the thing or business purchased, (p. 536).</p> <p>5. Good Will — Contracts of Sale — Construction.</p> <p>Where, as in this ease, such contract does not eo nomine include the good will, but covers not only a sale of the business but the place of business also, as a shop or lot on which the business 'is carried on, it will ordinarily be construed as including the good will of the business, by reasonable intendment or implication, (p. 537).</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by the County Court of Wetzel County against the Baltimore & Ohio Railroad Company. From decree for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by Ingrim Myers and others against Samuel Bland and others. From deeree for plaintiffs, defendants appeal.</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Suit by O. E. Ridenour and others against 0. A. Roach and others. From decree for plaintiffs, Lorraine Davis appeals.</p>

Suit by G. W. Bland and others against Mary Davisson and others. From decree for plaintiffs, defendants B. W. Cowan and the administrator of Charles M. Cowan appeal.

<p>1. Navigable Waters — Floating Logs — Diversion of Water — Injury to Crops — Injunction.</p> <p>Enuity lias jurisdiction to enjoin the negligent or unlawful exercise of the right to drift logs in a floatable stream, whereby the water is diverted from its usual channel and- in great volume cast upon and over adjoining lands of plaintiff, causing irreparable injury thereto and crops growing thereon, (p. 564).</p> <p>2. INJUNCTION — Validity of Order — Floating of Logs'.</p> <p>An injunction order is not erroneous, in scope and effect, which ■ enjoins a corporation from drifting logs in a floatable stream through plaintiff’s land in sueh manner as materially to interfere with the natural flow of the water or to cause injury “except in the use of the water in the natural and unchecked flow thereof”, and from causing or negligently permitting gorges or jams to be formed in the stream whereby the water may be cast upon the land in injurious volume, and from doing or permitting any act in the floating of logs that would' injure sueh real estate or affect injuriously its use or enjoyment by the owner, (p. 564).</p>

<p>Prohibition by the Sovereign Coal Company against J. M. Britton, Justice of the Peace.</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Suit by L. E. Poteet against C-. W. Imboden and others, executors, etc. From decree for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Suit by the Gauley Coal Land Company against J. M. Koontz. From decree for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Ritchie County.</p> <p>Suit by R. G. Linn, aclminstrator, etc., against C. M. Collins and another. From a decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by C. W. Dietz against T. C. McYey. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Thomas P. Hall, administrator, etc., against the Boomer Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the Brown Shoe Company against Silas Iiardin, doing business, etc. Judgment for plaintiff, and defendant brings error.</p>

Suit by F. W. Crane and others against the Standard Lumber & Manufacturing Company and others. From the decree, F. L. Wilmoth and another, partners as H. J. Wilmoth '& Sons, defendants, appeal.

<p>Error to Circuit Court, Kanawba County.</p> <p>Action by Tpuropin Zuplkoff against the Charleston National Bank. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Herbert Jones was convicted of an attempt to' commit rape, and brings error.</p>

<p>Error to Circuit Court, Tucker County.</p> <p>J. R. Harr and others were convicted-of laboring on a Sabbath day, and bring error.</p>

<p>1. Master and Servant — Injury to Servant — Pleading—Duties of Master.</p> <p>Averments in a declaration against a master for damages for wrongful death of his servant, of a higher degree of duty on the part of the master to provide for the safety of the servant than the law imposes, do not vitiate it. (p. 642).</p> <p>2. Same.</p> <p>For the purposes of a demurrer to such a declaration, the law itself raises the ordinary duties of the master to the servant, from allegation of the relation of the parties, and peculiar duties from allegation of the facts imposing them, wherefore, in neither case, is there necessity of express averment of the duty, (p.642).</p> <p>3. Pleading — Surplusage.</p> <p>Averment of matter in a declaration in tort, beyond what is necessary to give a right of action, by reason of the use of words too broad in meaning, or redundant phrases or clauses, is treated as surplusage, (p. 642).</p> <p>4. Same — Injury to Servant — Declaration—Requisites.</p> <p>In a declaration for injury by negligence, it suffices to allege the facts from which the law imposes duty, an act or omission constituting in law a breach of the duty and the resultant injury, (p. 642).</p> <p>5. Witnesses — Competency—Action by Administrator — Gommunica* tion With Person Since Deceased.</p> <p>A witness interested adversely to the administrator, in the result of the action for damages for wrongful death, is incompetent to testify against the latter, in regard to a personal communication between himself and the person alleged to have been wrongfully hilled, (p. 643).</p> <p>6. Evidence — Admissibility—Opinion of Witness.</p> <p>An opinion of a witness, founded upon a matter the evidence does not tend to establish, is not admissible as evidence, (p. 644).</p> <p>7. Same — Expert Opinion Evidence — Admissibility.</p> <p>Expert opinion evidence concerning a matter as to which the jury are as competent to form an accurate opinion as the witness, is inadmissible. (p. 645).</p> <p>8. Trial — Instructions—Evidence—Pleading.</p> <p>An instruction based upon actionable matter neither pleaded nor proved', is erroneous, (p. 645).</p> <p>9. Same — Instructions—Submission of Issues — Questions of Law.</p> <p>An instruction so general and indefinite in its-terms as to involve submission of matter of law, to the jury, for determination, is erroneous, (p. 645).</p>

<p>Mandamus by the State, on the relation of the First National Bank, against W. W. Hamilton, Sheriff, etc.</p>

<p>Railroads — Frightening of Anmials — Liability.</p> <p>While the plaintiff was rifling his horse along the public road, parallel to and adjoining the railroad, and while a freight train, consisting of 40 or 50 loaded cars was passing along the railroad, the horse, frightened at the noise or from the sight of the moving engine and cars, became unmanageable and beyond the control of the rider. The rider got off the horse and turned it loose near the railroad track, and the horse ran near the railroad track and by the side of the moving train in the same direction the train was running for about a half a mile, and then jumped over an embankment and was killed. No part of the train touched the horse; there was no unusual or unnecessary noise in the movement of the train, and' no act of negligence on the part of the trainmen in. operating the train. The railroad company under the circumstances is not liable for damages for the destruction of the horse.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by John Wesley Petry against the Cabin Creek Consolidated Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by the United States Fidelity & Guaranty Compaq a'gainst the Home Bank for Savings. From a decree for defendant, plaintiff appeals.</p>

<p>1. Mines and Minerals — Oil and Gas Lease — Sight to Extend'.</p> <p>A grantee in a deed, conveying a tract of land subject to an oil and gas lease under which the lessee has a right to drill or pay money in lieu of drilling, as it may see lit, reserving to the grantor a share of the royalties under that lease or any subsequent one and expressly authorizing the grantee to lease the land for oil and gas purposes and take the rentals, may rightfully extend the existing lease, before expiration thereof, in consideration of the annual payment of money in lieu of drilling, (p. 673).</p> <p>2. Assumpsit, Action op — Declaration—Demurrer.</p> <p>A demurrer to a special count in a declaration in assumpsit, alleging such facts, is well taken, (p. 674).</p> <p>3. Appeal and Error — Decision on Appeal — Assumpsit.</p> <p>On a writ of error to a judgment rendered by the trial court agreeable to its own finding, under a waiver of trial by jury, on a declaration in assumpsit, containing good common counts not sustained by any evidence at all, and a bad special count based upon documentary evidence showing no right of action in the plaintiff, the appellate court will not remand the case for amendment of the declaration, nor for a new trial, but will reverse the judgment, set aside the finding, sustain the demurrer to the special count and render a judgment nil capiat, (p. 674).</p>

<p>1. Adverse Possession — Forfeited Title — Color of Title — Deed by Stranger to Title.</p> <p>A deed, even though made by a stranger to the title, may serve as color of title to an oeeupant of land claiming the forfeited title, under See. 3, Art. 13 of the Constitution, (p. 676).</p> <p>2. Same — Forfeited Title — Color of Title — Description in Deed.</p> <p>Such deed is sufficiently definite to answer as colorable title if it describes the tract of land by reference to lands of adjoining owners, (p. 676).</p> <p>3. Same — Forfeited Title — Color of Title — Fights of Occupant — Proceedings by State.</p> <p>The occupancy of a claimant of the forfeited title, whether as of the first or third class of persons described in Sec. 3, Art. 13 of the Constitution, is not affected by the issuance of summons against him in a proceeding by the State to sell the land as forfeited. His right is protected, if, at the date of the deeree, the period of the required occupancy is complete and he has paid taxes for the required time, (p. 677).</p> <p>(Lynch, Judge, absent.)</p>

<p>Appeal from Circuit Court, Mineral County.</p> <p>Suit by the Davis Trust Company against Elise D. Price and others. ■ From decree for defendants, plaintiff appeals.</p>

Suit by tbe South Penn Oil Company and others against the Blue Creek Development Company and others. From a decree for defendants, plaintiffs appeal.

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by Eli Iiowcll and others against- Cam L. McCarty and -others. From decree for defendants, plaintiff appeal.</p>

<p>Appeal from Circuit Court, Lewis County.</p> <p>Injunction by Thomas N. Barnes against James P. Cole. From decree for plaintiff, defendant appeals.</p>

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

<p>1. Abatement and Revival — Grounds—Variance Between Summons and Declaration.</p> <p>Variance between the writ and the declaration can be taken advantage of only by plea in abatement, (p. 717).</p> <p>2. Pleading — Objection—Demurrer-—Sxifficieney.</p> <p>Where a declaration avers matters constituting a good cause of action, and others divisible therefrom not constituting such cause, a general demurrer will not reach the defect. The demurrer, to be effective, must distinctly be directed to the objectionable allegations. (p. 718).</p> <p>3. Judgment — Office Judgment — Affidavit-—Sufficiency. ■ ■</p> <p>An affidavit filed by plaintiff under §46, ch. 125, Code, is not defective as a whole because, in addition to a sum certain demanded therein, it contains specific and divisible items not recoverable as matter of law. In the absence of a timely plea and affidavit by defendant, where no enquiry of damages is necessary, the court, in entering judgment for plaintiff, should exclude the erroneous items, (p. 719).</p> <p>4. Same — Office Judgment — Writ of Enquiry for Damages — Confirmation of Judgment.</p> <p>In an action of debt on a promissory note, an enquiry of damages is unnecessary; and the award of such writ at rules is void, and should be ignored by the court in confirming an office judgment not set aside pursuant to the provisions of §46, ch. 125, Code. (p. 719).</p> <p>5. Appeal and Error — Bills and Notes — Collection Charges — Correction of Judgment.</p> <p>Stipulations in a negotiable note for payment of a certain percentage of the principal and the statutory attorney fee as collection charges, are invalid and unenforceable. The inclusion of such charges in a recovery by plaintiff is erroneous, but correctible in the appellate court, (p. 719).</p> <p>6. Same — Presentation Belotu — Excessive Recovery.</p> <p>A judgment entered on a verdict rendered on a demurrer to evidence is not reviewable on writ of error, on the ground of excessive damages, where no motion for a new trial or to correct the judgment was made in the trial court, (p. 719).</p> <p>(Milker, Judge, dissents to point 5 of Syllabus.)</p>

<p>1. Evidence — Best and Secondary — Contents of Letter — Preli/ini/nary Proof — Sufficiency.</p> <p>In laying the foundation for proof of the contents of a letter receipt of which is denied, it suffices, in the absence of an objection on account of form, to prove in general terms that the letter was sent to the parties denying receipt thereof, by the United States mail. (p. 725).</p> <p>2. Same — Best' and Secondary — Contents of Letter or Telegram — • Preliminary Proof.</p> <p>Denial of the receipt and possession of a letter or telegram excuses demand for production thereof, as a step preliminary to proof of its contents, (p. 725).</p> <p>3. Sales — Delivery—Transfer of Title — Executed Contract.</p> <p>Delivery of ordinary merchandise to the vendee, under a contract effected by an offer of purchase, after an inspection of the goods, or an opportunity to inspect them, accepted by the vendor, passes the title and makes the contract an executed one. (p. 726).</p> <p>4. Same — Implied Warranty — Inspection.</p> <p>In such a sale, there is no -implied warranty of quality or mer-ehantableness. (p. 726).</p> <p>5. Trial — Instructions—Construction.</p> <p>An instruction stating the law in the abstract and another applying the stated legal proposition to the facts in issue, may be treated as a single instruction, (p. 726).</p> <p>6. New Trial — Grounds—Harmless Error — Inaccuracy of Instructions.</p> <p>A verbal inaccuracy in an instruction, such .as the use of the word “seen” for “inspected,” in a case in which the evidence clearly proves the fact in issue and to which the word relates, does not warrant a new trial, (p.-726).</p> <p>7. Appeal And Error — Verdict—Evidence.</p> <p>A verdict against a clear and decided preponderance of the evidence is properly set aside, (p. 726).</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Suit by the State against Ellen Workman and others. From decree for plaintiff, the Pocahontas Coal & Coke Company appeals.</p>

<p>1. Action — Consolidation of Suits — Discretion.</p> <p>The consolidation of suits, in law and equity alike, is a matter addressed to the sound discretion of the court. A defendant is not entitled, as a matter of right, to have such suits consolidated, (p. 742).</p> <p>2. Appeal and Error — Trial—Discretionary Mulmg — View by Jurff.</p> <p>The allowance of a view by a jury is peculiarly within the discretion of the trial court, and its refusal will not be ground of reversal, unless it is clearly manifest that a view was necessary to a just verdict, and that its refusal operated to the injury of the party asking it. (p. 742).</p> <p>3. ' Insurance — Fire Insurance — Meylieation—Adjustment of Loss.</p> <p>A special replication of a plaintiff suing upon a policy of fire insurance stating that notice of the fire was given to the insurance company, and that the company proceeded to and did adjust the loss with the plaintiff, whereby it agreed to pay the sum of $- in discharge of its obligation under the terms of the policy, which sum the plaintiff agreed to accept in satisfaction of the liability, is defective, as it construes an adjustment of the loss as a promise or agreement to pay the loss. An ascertainment of the loss does not necessarily import a promise to pay it. (p. 7?>4).</p> <p>4. Same — Special Agent — “Adjuster”—Powers.</p> <p>An adjuster is a special agent for the person or company for whom he acts. His powers and authority are prima facie coextensive with the business intrusted to his care. (p. 749).</p> <p>5. Same — Insurance Adjuster — Poiuers.</p> <p>An insurance adjuster is ordinarily a special agent of limited authority to ascertain and adjust the loss, having no power merely as such in the absence of some evidence as to his authority to alter the contract, or waive any of its essential conditions, (p. 749).</p> <p>6. Same — Adjustment of Loss — Agreement to Pay.</p> <p>An adjustment of the amount of the loss, and an agreement to pay the amount as adjusted, are two distinct and independent things, (p. 749).</p> <p>7. Same — Pire Insurance — Adjustment of Loss — Estoppel.</p> <p>A mere adjustment of a loss, unless such adjustment is accepted by the insurance company with a promise to pay, will not estop the insurer from denying his liability. It is a mere step to ascertain and fix the amount of the loss. The adjustment does not fix the liability in and of itself without promise of payment, (p. 749).</p> <p>8. Same — Pire Insurance Policy — Waiver of Conditions — Effect.</p> <p>The waiver by the insurer of one of the promissory covenants of a policy of insurance does not waive other conditions of the policy, unless it clearly appear that such was the intention of the parties, (p. 748). '</p> <p>9. Trial — Instruction—Evidence.</p> <p>Although an instruction correctly states the law, yet if not applicable to the facts and circumstances of the case, it tends to mislead the jury and should not be given, (p. 748).</p> <p>10. Same.</p> <p>An. instruction should not be given when there is no evidence tending to prove the facts upon which the instruction is based, (p. 748).</p> <p>11. Same — Construction of Writings — Question for Jury.</p> <p>As a general rule the construction of all written documents given in evidence belongs to the court exclusively, (p. 749).</p> <p>12. Appeal and Error — Presentation for Eeview• — Bill of Exceptions— Mulings on Evidence.</p> <p>Where a stenographic report of evidence is made part of the certificate of evidence upon a motion for a new trial, and it shows objections to questions or evidence, and rulings of the court thereon, and that such rulings were excepted to, and the particular question or evidence complained of is specified distinctly in the motion for a new trial, or in an assignment of error, or in brief of counsel, so that the appellate court can readily and safely find the particular question or evidence to which the exception relates, the appellate court will consider the matter excepted to, though there is no formal bill of exceptions thereto; but such matter will not be considered without such specification, even though such report of evidence notes such objection, and exception, (p. 755).</p> <p>13. Same — Discretionary Ruling — Examination of Witness — Experiments.</p> <p>Where a witness has testified to the correctness of a paper in evidence, and says that he wrote the paper, and on cross-examination is asked to rewrite certain words with a view of comparison with the paper purporting to have been written by him, and objection is made, it is within the sound discretion of the court trying the case to determine whether pr not under the circumstances the experiment shall be made, and an appellate court will not reverse the judgment of the trial court for either permitting or refusing the experiment to be made, unless it plainly appear that he has abused the discretion. (p. 755).</p> <p>14. Trial — Argument of Counsel — Reading from Statute.</p> <p>Where a deputy fire warden who is paid a salary out of the state treasury is .a'witness in a case relating to acts performed in his official capacity, it is not error for counsel in his address to the jury to read as part of his address a statute of this state showing how the money was raised out of which the salary of the officer was paid. This would not affect the merits of the case, and permission to read the same would be within the discretion of the trial judge, (p. 756).</p>

<p>1. New Trial — Excessive Verdict — Owe bp Remittitur.</p> <p>Unless the excess of a verdict is deafly ascertainable from data in the record, the trial court cannot reduce the verdict or suffer a remittitur; and in no case without such remittitur can the court of its own motion abate any part of the verdict and pronounce judgment for the balance. Its only course when a remittitur is refused is to set aside the verdict and award a new trial, (p. 759).</p> <p>2. Corporations — Officers—Powers—Execution of Notes.</p> <p>There is no inherent authority in the president of a corporation to execute notes or otheT instruments on its behalf, (p. 759).</p> <p>3. Same — Resolution of Directors — Validity—Interest of Member.</p> <p>The resolution of a board of directors of a corporation, passed at a meeting at which one of its members interested therein and necessary to a quorum is present, and voting in favor thereof, is prima facie fraudulent and void. (p. 761).</p> <p>4. Same — Unauthorized. Acts of Officers — Ratification—Subsequent Repudiation.</p> <p>Eatifieation of an unauthorized act of the president of a corporation by a board of directors likewise constituted, or by a board lawfully constituted, ignorant of the facts connected with the transaction to which it relates, will not preclude such corporation from thereafter repudiating the same for-good eause shown, (p. 762).</p> <p>5. Same — Misconduct of Officer — Action bp Corporation — Defense.</p> <p>Where an accounting officer of a corporation, as treasurer, participates in the irregular and careless conduct of the business, and suffers the moneys loaned by him or borrowed on behalf of his company to be paid over to another officer and commingled with the latter’s private funds, and has not accounted for the funds coming to his own hands as such officer, he will not be permitted to pick out certain items of money loaned by him or goods or property furnished, and in a suit against his corporation recover therefor without showing the actual state of the account between him as such accounting officer and his company, and the actual balance due him, if any. (p. 763).</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Suits by the State against William Thompson and others. From decrees for plaintiff, the Pocahontas Coal & Coke Company, defendant, appeals.</p>

<p>1. Principal and Agent — Advancements by Agent — Items of Account — Contract.</p> <p>In the absence of an express agreement with his principal to the contrary, an agent's advancements of money for his principal’s benefit, in the accomplishment' of the purposes of the agency, are items, factors or elements in the account between them, not loans or debts by express contract, (p. 781).</p> <p>2. Evidence — Bootes of Account — Settlement of Agency Account.</p> <p>All entries máde in books of account or memoranda, respecting such advancements by the agent, are a part of his work as agent, and he cannot withhold such books and papers from the principal as being his individual property. Whatever their status as property may be, both parties are entitled to their use in the settlement of the agency account, (p. 781).</p> <p>3. Continuance- — Ground's—Refusal to Frodiuce Evidence.</p> <p>In an action for a balance alleged to be due from the principal on such an account, it is error to refuse a continuance, when the agent’s refusal to produce such books and diligent effort of the principal to obtain them, have been shown as ground therefor, (p. 781).</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Suit by George Thompson against the Buffalo Land & Coal Company and others. From decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Frank J. Flanagan against the Flanagan Coal Compainy. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Election op Remedies — Causes of Action — Joinder—Inconsistent Bights.</p> <p>Plaintiff eonditionaly sold and delivered to defendant 12 two-yard dump cars, and took Ms several notes, payable at different times, for the purchase price. 'After defendant had paid the first note, plaintiff sold him 12 larger dump ears and an engine, on like condition, retaining title until all the purchase price should he paid, and they then agreed that the cash already paid and the notes given for the first lot of cars should be retained, as part of the consideration'for the second lot of ears and engine; and defendant executed his additional notes to cover the difference in price, and agreed to return to plaintiff, in good condition and at his own expense, the first lot of cars. He returned only two of them; and paid all the notes except the last three, and defaulted in the payment of the last but two. Whereupon plaintiff brought detinue to recover the 10 small cars and the 12 larger cars and engine. Beldl: The small cars were no part of the consideration of the large cars and engine; and plaintiff was not asserting inconsistent rights by suing for all of them, in one action, (p. 796).</p> <p>•2. Sales — Recovery of Property — Right.</p> <p>That the negotiation of one of the notes, which he was afterwards required to take up, was not a waiver of plaintiff’s right to claim the property, (p. 800').</p> <p>3. Same.</p> <p>That he had a right to recover the property so long as any of the purchase money notes remained in his hands unpaid, (p. 800).</p> <p>4. Same — Recoveryi of Property Sold — Rendition of Judgment — Condition Precedent.</p> <p>That on recovery of the property, defendant has a right to demand that the unpaid notes be canceled and delivered up to him, before judgment, (p. 800).</p>

<p>Error to Circuit Court, Marshall County,</p> <p>Grover Littleton was convicted under an indictment charging housebreaking and larceny, and brings error.</p>