Volume 78 — West Virginia Reports

<p>Error to Circuit Court, McDowell County.</p> <p>Kyle Shelton was convicted of keeping a common gaining house, and brings error.</p>

Proceedings by the Central Trust Company of Illinois, guardian, etc., against William H. Hearne, to require defendant to pay and deliver property and money belonging to plaintiff’s ward. From an order granting the relief prayed, defendant appeals.

<p>1. Garnishment — Persons Subject — Public Corporations.</p> <p>Municipal corporations or other public corporations, on principles of public policy, are not liable to garnishee process, (p. 12).</p> <p>2. Process — Persons Subject — Public Corporations — “Person.”</p> <p>Statutes relating- to attachment and garnishment, and making corporations, as other persons, amenable to legal process, and defining the word “person" to include corporations, aro generally construed not to include public corporations, (p. IS).</p> <p>3. Garnishment — Parsons Subject — Public Corporations.</p> <p>Exemption of such corporations from process of garnishment is not a personal privilege which may be waived by them, by appearance and answer, but one based on principles of public policy and which cannot be waived, (p. 13).</p>

<p>1. Officers — Proceedings to Remove — Parties—“Criminal Proceedings. ’ ’</p> <p>Proceedings for the removal of public officers, pursuant to section 7, chapter 7, serial section 222, Code 1913, are not criminal proceedings, and may be instituted and prosecuted, under the direction of the court, by citizens and taxpayers, (p. 15).</p> <p>2. Same — Proceedings to Remove — Filing of Charges — Compliance with 'Statute — “Shall’’—“Entered of Record.’’</p> <p>The requirement of said statute that the charges against such public officers “shall be reduced to writing and entered of record by the court,” is mandatory, and must be literally complied with as a prerequisite to valid process against the defendant to answer the same. The mere -filing of the petition of complainants containing the charges and the issue of process thereon, will not satisfy the other requirements of the statute, (p. 16).</p> <p>3. Action — Civil or Crvnvmal — Proceeding to Remove Officer — Limitations — Application of Statute.</p> <p>Tlxe statute of limitations applicable to criminal prosecutions for such offenses is inapplicable to proceedings under said section 7, of chapter 7, of the Code. (p. 18).</p> <p>4. Officers — Grounds for Bemoval — Validity of Statute.</p> <p>Said statute providing for the removal from office for "official misconduct, incompetence, habitual drunkenness, adultery, neglect of duty, or gross immorality,” is not unconstitutional, for adding grounds of removal not specified in section 6, of Article IV, of the Constitution. The grounds specified in the statute are fairly comprehended in the several classes of offenses named in the Constitution. (p. IS).</p>

<p>Error to Circuit- Court, McDowell County.</p> <p>Action by William Day against the E. E. Wood Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MASTER and Servant — Injury to Brakeman — Proof of Negligence —Pear-End Collision.</p> <p>In an action, under the Federal Employers Liability Act, for the negligent killing of a brakeman, the happening of a rear-end collision between a train standing on the main track and one in motion, on a dark and foggy night, is not of itself sufficient to prove negligence on the part of the engineer of the moving train, although he knew another train was ahead of him, but did not know it had stopped, when the undisputed testimony of witnesses show he was running not over twelve or fifteen miles an hour, and was keeping a careful lookout and was not signalled to stop, and did not see the lights on the rear end of the standing train, on account of a short curve and the darkness and fogginess of the night, until he was so close as to make it impossible to stop his engine in time to avoid the collision, he having a right, under the rules of defendant -company, to expect a signal in time to stop, in case the foremost train should stop on‘the main line. (p. 28).</p> <p>2. Same — Pear-End Collision — Duty of Engineer.</p> <p>It being the duty of the rear brakeman, under the rules of the company, when his train stops and is liable to be overtaken by another train, to go back along the track and protect it by certain signals, to be given or placed on the track, and the duty- also of the conductor to see that he does so, when the train makes a regular stop, known to the conductor, the engineer is not required to signal the flagman to protect the train, in the absence of a rule or established custom among the trainmen requiring him to do so in such case, (p. 28).</p> <p>3. Same — Injury to Servant — Proof of Negligence.</p> <p>Under the Federal Employers Liability Act a carrier’s liability depends on negligence, and the evidence must establish actionable negligence, with reasonable certainty, before there can be a recovery. Negligence will not be inferred from proof of facts and circumstances which are just as consistent with due diligence as with some theory of negligence, (p. 28).</p> <p>4. Same — Death of Pailroad Employe — Contributory Negligence— Accident.</p> <p>There is no liability on a railroad company for the death of an employe, caused wholly by his own negligence, or by mere accident. (p. 2S).</p> <p>Same — Railroad Employes — Duty of Company. OX</p> <p>A railroad company is not bound to provide walk-ways or guardrails on its bridges and trestles for the protection of its employes, (p. 32).</p> <p>6. Same — Injury to Railroad Employe — Assumption of Rislc.</p> <p>The doctrine of assumption of risk is not wholly abolished by the Federal Employers Liability Act. An employe of a railroad company, engaged in interstate commerce, assumes the ordinary hazards .of the business in which he engages, not arising out of the company’s negligence or the negligence of its officers or other employes: (p. 33).</p> <p>7. Same — Railroad Employes — Provisions for Safety — Duty of Company.</p> <p>The standard of care required of a railroad company in the construction and maintenance of its road, bridges and trestles, is such reasonable care and skill as is ordinarily employed in that respect by railroad companies in general, (p. 33).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Perry Griffith, an infant, etc., against the American Coal Company of Allegheny County. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Assignments — Public Office — Agreement to Divide Profits— Validity.</p> <p>R. P. Shinn and his brother J. O. Shinn owned a farm jointly, and for many years were partners, dividing equally the profits of their business; R. P. Shinn was elected sheriff of his county, and by an agreement between them, J. O. Shinn was to continue the farming business, and R. P. Shinn was to act as sheriff, (J. O. Shinn having no connection with the office of sheriff); all the expenses of the office, including election expenses, were to be paid from their partnership funds, and the profits arising from the office, together' with the profits arising from the farm, were to be placed in a common fund and divided equally between them, held: Tins was not an illegal contract, nor a -violation of section 5, chapter 7, of the Code. (p. 52).</p> <p>2. Same — Pub lie Office — Agreement to Divide Profits — Validity— “Sell” — “Let to Farm.”</p> <p>By the contract above stated, the plaintiff as sheriff neither sold the office, nor “let it to farm.” The defendant, J. O. Shinn, acquired no interest whatever in the office, (p. 52).</p> <p>3. Payment- — Payment Under Mistake — Recovery in Assumpsit.</p> <p>A person paying money under a mistake of fact to one not entitled to receive or retain it, may recover it in assumpsit, (p. 49).</p> <p>4. Pleading — Striking Out Plea.</p> <p>A plea which raises no substantial defense to the action, is bad. (p. 50).</p> <p>5. Appeal and Error — Disposition of Cause — Defective Pleading.</p> <p>In an action of assumpsit, where there is a plea of nonassumpsit, and issue thereon, and fair, full, and complete trial had on the merits, by the court in lieu of a jury, and a judgment for the defendant, and it appears to this court upon writ of error, that the judgment under the law and the evidence should have been for the plaintiff; this court will reverse the judgment of the circuit court and enter judgment for the plaintiff, notwithstanding . the court permitted the defendant to file a deficient plea in the case over the objection of the plaintiff. The defendant will not be heard to complain of a bad plea filed by.Mm to which the plaintiff objected, and the plaintiff will not be injured, or have cause to complain, (p-. 51).</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by Henry Summers and others against G-. L. Hively. From a decree for plaintiffs, defendant appeals.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by John W. Wright against Charles N. Wright. Judgment for plaintiff, and defendant.brings error.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by John B. Harman against the New River & Pocahontas Consolidated Coal Company. Judgment for the defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by tbe Monongahela & Western Dredging Company ■ against Lloyd E. Smith. A verdict for defendant was set aside, and defendant brings error.</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Suit by W. H. Crawford against 0. B. LeFevre. From decree for defendant, plaintiff appeals.</p>

<p>Error to Circuit .Court, McDowell County.</p> <p>Action by S. L. Harris and others against C. P. North and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Mandamus — Subjects of Belief — Division of Voting Precinct.</p> <p>It is the imperative duty of the county court of a county, at its first regular term next succeeding a regular election, to divide any voting precinct in the county, wherein the number of votes cast is shown by the election returns to be greater than 250, and to establish voting places therein. If it should fail or refuse to do so, it may be compelled by mandamus. ' (p. 86).</p> <p>2. Elections- — Voting Precincts — Division by County Court.</p> <p>It is likewise the duty of a county court to divide any voting precinct in the county, which is shown by satisfactory proof to contain more than 250 legal voters, notwithstanding the returns of the last election showed fewer than 250 votes were cast therein. But the county court has a reasonable discretion as to the time when a division of such precinct shall be made; provided, however, the time be not extended so as to make a division impossible'before the beginning of the ninety days next prior to a regular election. (p. 86).</p>

<p>1. Covenants — Action on - Covenant — Flea of Non Est Factum— Issues.</p> <p>In covenant there is 'no general issue, strictly speaking, as in debt, assumpsit or trespass on the ease, and the plea of non est factum puts in issue only the execution of the covenant sued on. Bjit if the declaration does not aver the covenant in its exact language, but simply its legal effect, the plea puts that matter in issue as well as its due execution, (p. 90).</p> <p>2. Evidence — Ambiguous Written Contracts.</p> <p>To enable the court to construe a deed or other writing, ambiguous on its face, it is always permissible to prove the situation of the parties, the circumstances surrounding them when 'the contract was entered into and their subsequent conduct giving it a practical construction, but not their verbal declarations. But, if a latent ambiguity is disclosed by such evidence, such for instance as that the terms of the writing are equally applicable to two or more objects, when only a certain one of them was meant, then prior and contemporaneous transactions and eolloeutions of the parties are-admissible, for the purpose of identifying the particular object intended, (p. 92).</p> <p>3,. Trial — -Refusal of Instruction — Evidence—Certified Copy of Recorded Deed.</p> <p>Where a certified copy of a recorded deed is used as evidence in the trial of the issue of. non est factum, in lieu of the original shown to have been lost, and there is no note or memorandum on such copy respecting any interlineation, erasure or alteration in the original, it is proper to refuse an instruction to the jury, the ef-feet of which would be to tell them that they should consider the absence of any such memorandum as evidence, in determining whether certain words were added to the original deed after its execution by the grantor, when the evidence shows that the controverted words appeared as the-concluding words of the last sentence, in the deed, in regular order and in the same handwriting as the body thereof, (p. 92).</p> <p>4. Trial — Instructions—Ignoring Issues.</p> <p>In an action of covenant, where the only issue is non est factum, it is error to give to the jury a binding instruction which ig nores that issue.' (p. 91).</p> <p>5. Covenant — Breach—Pleading—Damages Recoverable. .</p> <p>Notwithstanding defendant does not take issue on an alleged breach of covenant, and pleads non est factum only, plaintiff can recover only nominal damages, if the termination of the issue is favorable to him, unless he proves with reasonable certainty the extent of his actual damages, (p. 91).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by D. E. Robinson against the Virginia-Pocahontas Coal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Libel and Slander — Words Actionable — Charge of Crime.</p> <p>The following item was published in a newspaper, namely: "-At the session of court which began last Tuesday, Effie Milan was convicted.of perjury. She was sentenced to two years in the state penitentiary.” Held: That such publication is actionable per se. (p. 104).</p> <p>2. Same — Actions—Pleading—Damages.</p> <p>Where words are actionable per se, it is not necessary to aver and prove special damages in order to entitle the plaintiff to general damages. The law implies all such damages as are the.natural and probable consequence of the words so spoken or written, in all cases where the words are actionable per se. (p. 104).</p> <p>3. Same — Mitigation of Damages.</p> <p>The fact that a publication .was made as a news item by mistake or misinformation, and that no special damage resulted from the publication, 'and that the publisher promptly explained the mistake through the same newspaper, may be shown in evidence upon the trial, in mitigation of damages, but will not fully excuse the publisher, (p. 105).</p> <p>4. Same — Actions—Issues and Proof — Damages.</p> <p>Special damages can not be recovered in such ease without an allegation and proof of loss or damages as a consequence of the publication, (p. 107).</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by A. W. Werninger against the City of Huntington and others. From the decree, plaintiff appeals.</p>

<p>Assumpsit, Actioh op — Pleading—'Executory Contract — Sale of Corporate Stock.</p> <p>'To recover in assumpsit for the breach of an executory agreement for the sale of corporate stock, plaintiff must declare specially on the contract. The general counts alone will not suffice, except where payment of the consideration is the only act remaining unperformed thereunder. ■</p>

<p>1. Appeal and Error — Pleading—Demurrer—Assignment of Grounds.</p> <p>Section 29, chapter 125, serial section 4783, Code 1913, respecting failure to assign grounds of demurrer, does not apply to equity causes, (p. 119).</p> <p>2. Divorce — Pleading.</p> <p>A bill for divorce on the ground of adultery, specifying the person with whom the alleged act of adultery was committed, and also the time and place, is not bad on demurrer for failure to allege other circumstances of the alleged offense, (p. 119).</p> <p>3. Same — Durden of Proof.</p> <p>In suits for divorce as in other civil causes the burden is upon the plaintiff to make out his case by clear, positive, and satisfactory evidence, (p. 123).</p> <p>4. Same — Sufficiency of ¡Evidence.</p> <p>In this case the evidence of the adulterous acts alleged was not sufficient to support the decree a vinmlo matrimonii -appealed from. (p. 120).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Charles H. Daniels, who sues by his next friend, against The Charles Boldt Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Commerce — Injuries to Servant — Employers’ Liability Act.</p> <p>To have right of recovery for an injury, under the Federal Employers ’ Liability Act, the employe, at the time of the injury, must have been in the employ of a common carrier by railroad, engaged in interstate commerce, and the work in which he was engaged at that time must have been work in such commerce, (p. 132).</p> <p>2. Same.</p> <p>An employe of such a carrier, working in an excavation under a wooden trestle on which the employer’s track crosses a small stream and near the supporting timbers thereof, intended for an abutment of a steel bridge to take the place of the trestle and to be used in lieu thereof, when completed, and not repairing or altering the trestle nor otherwise engaged in work on it, or the track or anything else actually used in the operation of the railroad, is not within the protection of said statute, and, for his death occasioned by negligence of his employer, no recovery can be had under or by virtue thereof. His right of action arises under the State statute giving damages for death by wrongful act. (p. 133).</p> <p>3. Master and Servant — Injwries to Servant — Actions—Questions for Jury.</p> <p>Whether the foot of a perpendicular, unbraced and unsupported earth wall thirteen or fourteen feet high, composed of firm, hard earth, but subject to vibration caused by the passing of electric railway cars over it at frequent intervals, is an unsafe place to work, may be submitted to a jury for determination, in an action in which there is right of recovery against the master for failure to exercise diligence to provide his servant a reasonably safe place for work. (p. 136).</p> <p>4. Tkial — Instructions—Applicability to Case.'</p> <p>When, for any reason, a plaintiff has no right to recover, it is error to give instructions conditionally authorizing a finding in Ms favor, and also to refuse to give a peremptory instruction to find for the defendant, (p. 135).</p>

Appealed from Circuit Court, Mason County. Suit by Marion Roush and others against the Longdale Independent Telephone Company and others. From a decree for defendants, plaintiffs appeal.

<p>1. Indictment and Information — Requisites of Accusation — Following Language of Statute. ' '</p> <p>An indictment for a statutory crime is sufficient if it charges it in the language of. the statute, (p. 140).</p> <p>2.. Criminal 'Law — Trial—Waiver of Frror.</p> <p>By introducing his own evidence, after the court has overruled his motion to strike out plaintiff’s evidence, a defendant waives the error, if any, in the court’s ruling, (p. 141).</p> <p>3. Same — Schools and School Districts — Examination of Teachers — ■ Criminal Prosecution — Evidence.</p> <p>Proof of facts and circumstances tending to arouse suspicion, but which do not prove the actual commission of the crime charged, will not sustain a verdict of guilty, (p. 141).</p>

<p>1. Master, and Servant — Injury to Servant — Declaration—Sufficiency.</p> <p>In an action against an employer, subject to the Workmen’s Compensation Act, for an injury received, by one of his servants, the declaration is good, if its averments show the injury was the direct result of negligence on the part of some employe or officer, other than plaintiff; or resulted from the negligence of such other combined with his own. (p. 145).</p> <p>2. Same — Injury to Servant — Workmen’s Compensation Act — Abolition of Defenses — Negligence.</p> <p>Negligence is the basis of such action; and, if plaintiff’s injury is due wholly to his own negligence, he can not recover. But section 26 of the Act, makes the employer liable, not only for his own negligence, but also for the negligence of any of his officers, agents or other employes, and denies to him the common law defenses of contributory negligence, assumption of risk and negligence of a fellow'servant, (p. 148).</p> <p>:i. Same — -Workmen's Compensation Act — -Validity—Abolition of Defenses.</p> <p>The Workmen’s Compensation Act does not violate any of the employer’s constitutional rights, by denying to him the aforesaid defenses, (p. 147).</p> <p>4. , Commerce — Interstate Commerce — Federal Employers' Liability Act.</p> <p>An electric railway company which operates.an urban car line, and also other lines connecting therewith and extending into another State, is both an intrastate and an interstate carrier. But the Federal Employers’ Liability Act does not apply in the ease of injury to a servant of such company, who is operating a street car, eon-fined to the urban lines and not, at the time of injury, carrying interstate passengers or traffic. To make the federal act applicable, the injured servant must be engaged in interstate commerce at the time of injury, (p. 146).</p> <p>5. New Trial — Yerdiot—Motion to Set Aside — Compulsory Remit-tittur.</p> <p>In an action for personal injury, where the jury has returned a verdict for plaintiff, and defendant has moved to set it aside on the ground that the damages assessed are excessive, it is reversible error to compel plaintiff to remit a portion of the damages on pain of having the verdict set aside, and to enter judgment for the balance, (p. 149).</p>

<p>1. Railroads — Specific Performance — Nature of Contract — Legality.</p> <p>When an owner, who grants a railroad right of way through his lands for a valuable consideration expressed in the deed, and a carrier engaged in interstate commerce orally agree that, as part of the consideration, not so expressed, it will issue to Mm annually for life a pass over its road, and the agreement therefor, though valid at the time, is prohibited by. a subsequent act of Congress, entitled “an act to regulate commerce,” passed June 29, 1906, under the power conferred by the Constitution, the carrier’s failure or refusal to issue the pass because so prohibited will not entitle the grantor to a decree for specific performance of the oral agreement ' or for rescission of the grant, neither the agreement nor the grant providing for either remedy in the event of such failure or refusal, (p. 152).</p> <p>2. Same — Grounds—Performance of Contract.</p> <p>Equity will not cancel a deed for a railroad right of way, made upon a valuable consideration expressed therein, when the sole cause alleged for the cancellation is the failure or refusal of a carrier engaged in interstate commerce to issue annual passes for life as additional consideration pursuant to an oral agreement not expressed in the grant nor otherwise recognized as a ground of forfeiture of the right conveyed, where compliance with the agreement, although not originally violative of any rule of law or statutory regulation, has thereafter been prohibited by the act of Congress passed June 29, 1906, entitled “an act to regulate commerce,” and the carrier has accepted the conveyance by the construction and operation of its road, upon the way so granted to it. (p. 156).</p> <p>3. Carriers — Regulations—Interstate Commerce Act — Charges.</p> <p>Since the passage of that act, such a carrier can not lawfully charge, collect or receive anything except money for personal transportation over its road, or therefor or for any service in connection therewith demand, collect or receive a greater or less or different compensation than that specified in its published schedule of rates, (p. 153). .</p>

<p>Appeal from Circuit Court, Nicholas County.</p> <p>Suit by the Pardee & Curtin Lumber Company against .John A. Odell and others. Prom the decree, the Gauley Coal Land Company appeals.</p>

<p>1. Mandamus — Nature—Grounds of Remedy.</p> <p>Clear legal right of the relator in mandamus to have performance of the act he seeks to coerce performance of, and plain duty to perform it, on the part of the respondent, are essential to the award of the writ. (p. 171).</p> <p>2. Evidence — Judicial Notice — Administration of Political Parties.</p> <p>Courts judicially know political parties have rules and regulations for their government and tribunals for the prescription, interpretation and administration thereof, and that the rights of members and inferior or subordinate bodies of such organizations are determinable by such rules and regulations within the parties and by their tribunals, (p. 171).</p> <p>3. Election- — Political Parties — Government.</p> <p>In the absence of fraud or violation of positive law, courts will recognize and vindicate rights accorded by the decisions of such tribunals, in those cases in which a statute makes it their duty to recognize and enforce them. (p. 171).</p> <p>4. Same.</p> <p>In the absence of a statute conferring the jurisdiction, courts will not undertake to settle and determine substantial controversies between rival political committees or factions of such a committee, the right in which is dependent upon party rules, usages and customs, nor grant relief to either of such committees or factions, as the representative of the party, in those cases in which the party is entitled to relief, but will refuse the relief asked until the controversy is settled and determined by some supervising board, committee or other tribunal of the party, (p. 172).</p> <p>5. Same. •</p> <p>Neither of two factions of a political committee, dividing on substantial controversies governed by party usages, customs and rules, can be recognized by the courts as having prima facie right, (p. 172).</p> <p>■6. Same,,</p> <p>A remonstrance or protest by one-faction, of a political committee made to an officer or court acting in a ministerial capacity, ag'ainst performance of an act demanded on belialf of the party, by another faction claiming to represent it, and based upon allegations of fact raising questions as to "tho right of such faction to represent the party, determinable by its supervising committees and governing bodies, justifies refusal of the officer or court to perform the act demanded (p. 172).</p> <p>(Millek, Judge, absent.)</p>

Actions by Bettie Fleming against E. P. Pople, and by tbe same plaintiff against F. L. Morgan. From a judgment for plaintiff, defendants bring error.

<p>Appeal from Circuit Court, Boone County.</p> <p>Suit by George H. Shrewsbury, trustee, against the Horsé Creek Coal Land Company and others. From a decree for defendants, plaintiff appeals.</p>

Petition by the Wayland Oil & Gas Company and others for writ of prohibition to H. D. Rummel, judge of common pleas court of Kanawha County, and others.

<p>Error to Circuit Court, Mercer County.</p> <p>Action by W. H. Houseman, administrator, against the Home Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Frederick J. Emsweller was convicted of a violation of the liquor law by a justice of the peace, and applied for a writ of habeas corpus to John B. Wallace, sheriff, and others. Judment refusing discharge, and he brings error. Reversed and prisoner discharged. From a judgment denying an appeal from the justice’s judgment of conviction, he also brings error.

<p>Appeal from Circuit Court, Marshall County.</p> <p>Bill in equity by Nicholas Ropar and others against Anna Ropar and others. From a decree for defendants, plaintiffs appeal.</p>

<p>Error to' Circuit Court, Nicholas County.</p> <p>Action by Orville Neil against the Flynn Lumber Company. Judgment for defendant, and plaintiff brings error.</p>

<p>TTalse Preteuses — Larceny—Indictment—Ownership of Property.</p> <p>An indictment charging attempt .to steal or to obtain by false pretenses a promissory note, alleged to be "the property of the estate of Thomas McFall, deceased,” is fatally defective on demurrer.</p>

<p>Appeal from Circuit Court, Wyoming County.</p> <p>Suit by Hiram Sizemore against Grace Lambert and others. From decree for plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by H. C. Harvey against William M. Shipe and others. Prom a decree for plaintiff, defendant S. J. Hyman appeals.</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Action by tbe Randall Gas Company against the Star Glass Company. Judgment for defendant, and plaintiff: brings</p>

<p>1. Elections — Political Parties — Selection of Committee — Review by Courts.</p> <p>Determination by the state executive committee of a political party, of the right of a county executive committee of such party to elect as its chairman and a member thereof, a person outside of its own previously elected members, and of the regularity of its action in declaring vacant the seat of a member who has moved to another state and filling the same, based upon the usages and customs of such political party, and violative of ’ no statute, is not reviewable by the courts, (p. 260).</p> <p>2. Same — Registration of Voters — Appointment of Registrars — Selections by Party Committee.</p> <p>A county court can not arbitrarily refuse to appoint, as registrars of voters, competent and qualified persons, recommended to it for such appointment by a majority of the members of the county executive committee of a political party, entitled by sec. 98al, eh. 28, Acts 1915, to make such recommendation, (p. 261).</p>

<p>1. Subrogation — Nature of Bight.</p> <p>The doctrine of subrogation, is that one who has the right to pay and does pay a debt which ought to have been paid by another, is entitled to exercise all the remedies which the creditor possessed against that other, (p. 265).</p> <p>2. Same — Principal and Swrety — Bight of Principal.</p> <p>A surety, on the payment by him of a judgment constituting a lien on the property of his principal, is entitled in equity, without an assignment thereof, to be subrogated to the rights, powers and remedies of the judgment creditor, for the enforcement of the lien against property of the principal debtor for his own benefit, (p. 265).</p> <p>3. Vendor and Purchaser — Bights of Purchaser — Notice of Prior Lien. ■</p> <p>A purchaser of property with notice of a right in a surety to charge the same by way of subrogation, takes it subject to such equitable right, and such notice may be actual or constructive, (p. 265).</p> <p>■ 4. Equity — Beference—Necessity.-</p> <p>Where there is a judgment against three persons jointly, and one of them is surety for the other two, and the surety pays the judgment in whole or in part, he is entitled to be subrogated to the rights of the judgment creditor against the principal debtors for so much of the judgment as he paid; and where one of the judgment debtors is the owner of real estate at the time of the rendition of the judgment, and aliens the real estate after the judgment is properly recorded, and a suit in chancery is brought by the surety seeking to be subrogated to the remedies of the judgment creditor, for so much of the judgment as he paid, and to charge the land in the hands of the purchaser, with the judgment, or so much of it as he has paid, and there is no controversy as to the amount of the judgment, or the amount paid by the surety, or that he was surety for the other two judgment debtors, and it does not appear that there are any other liens upon said land, it is not necessary to refer the cause to a commissioner to ascertain the liens, before entering a decree setting aside the deed conveying the real estate as to this judgment only, and charging the real estate in the hands of the purchaser with the judgment, (p. 265).</p>

<p>Covenants — Performance or Breach — Warranty.</p> <p>Where a lot of ground is conveyed by metes and bounds, and an adjoining lot is later conveyed by the same grantor to different parties, and the calls of the second deed extend to, and the land is bounded in part by one of the lines laid down in the first deed, and the grantees in the second deed extend their boundaries by crossing over the line mentioned as a common line and take possession of land inside the boundaries of the land conveyed by the first deed, the persons so taking possession are trespassers; and this is not such eviction of the grantee in the first deed as will sustain an action against his grantor for breach of covenants of warranty.</p>

<p>Error to Circuit Court, “Wetzel County.</p> <p>Action by John McKimmie, administrator, against R». W. Postlethwait. Judgment for plaintiff!, and defendant brings error.</p>

<p>1. Master and Servant — Injuries to Servant — Employment of Minor.</p> <p>It is not negligence per se to employ a young man eighteen years of age, without the consent of his parents or guardian, to drive a team, and to go into the woods or forest where trees are being cut and felled, and to haul such logs and timber from the place or places where cut to a saw mill plant there operated by his employer, (p. 280).</p> <p>2. Same — Injuries to Servant — Pleading.</p> <p>A declaration charging defendant with having so employed plaintiff's intestate to so drive a team into the woods and forest where trees were being cut and felled, a place of danger, and to there hold and watch the same, and by reason whereof and without fault on his part he was injured and hilled by a falling tree, presents no case of actionable negligence on the part of the master, (p. 280).</p> <p>3. Executors and Administrators — Appointment—Eligibility.</p> <p>A married woman with the consent of her husband, such consent being presumed from her appointment and qualification, is not, because of coverture, wholly disqualified to act as administratrix, and her appointment and qualification cannot be collaterally attached in a suit brought in her fiduciary capacity for damages for the wrongful death of her decedent, (p. 281).</p>

<p>Railroads — Operation—Injuries to Animals — Evidence.</p> <p>Defendant’s demurrer to the plaintiff’s evidence in this case— an action for alleged negligence in killing one of plaintiff’s fat cattle — was properly sustained and relief denied.</p>

<p>1. Motions — Orders—Entries Nune Pro Tune.</p> <p>A clerical omission to enter an order actually made and essential to the maintenance of a judgment, against an attack upon it by appellate procedure, may be remedied by a nune pro tune entry thereof, after the expiration of the term at which the judgment was rendered and after the award of a writ of error to it. (p. 2SS).</p> <p>2. Eminent Domain- — -Streets — Alteration of Grade — Damages — Permanence.</p> <p>Damages to property abutting upon a street, occasioned by the raising of the grado of the street above the elevation of the lot, so as materially to impair the right of access thereto and depreciate the market value of the property, are permanent in their nature, (p. 288).</p> <p>3. Action — Joinder of Causes — Temporary and Permanent Damages.</p> <p>With a count in a declaration for such damages, a count for temporary damages occasioned by the collection and deposit of surface waters upon the lot, resulting from the alteration of the street, may be joined, (p. 288).</p>

<p>Appeal from. Circuit Court, Randolph County.</p> <p>Bill in equity by James Fisher against J. "W. Poling and others. From a decree for plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Suit in equity by S. L. 0 ’Neal against S. A. Moore. From a decree for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Harrison. County.</p> <p>Bill in equity by Jessie B. Smith against Ada M. McCune and others. From a decree for defendants, plaintiff appeals.</p>

<p>Fkaodulent CONVEYANCES — Transactions Invalid — Belation of Pas-ties — Husband^ and Wife.</p> <p>A married woman may take property by conveyance from her husband, provided it clearly appear that she paid a valuable consideration for the same with money which belonged to her, and that it further appear from the evidence that the conveyance was not made to hinder, delay or defraud his creditors.</p>

<p>1. Appeal and Error — Presenting Questions in Trial Court — Necessity.</p> <p>If error or supposed error of any sort, except errors in the pleadings appearing on the record, are committed by a court during the the trial of a case by,a jury, the appellate court will not review such rulings, unless they were objected to and excepted to when made, and a new trial was asked for and refused by the trial court and the rulings excepted to noted on the record and made part of it. (p. 317).</p> <p>2. Same — Presenting Questions in Trial Gowt — Motion for New Trial — Sufficiency.</p> <p>A motion to set aside the verdict of the jury and grant a new trial which does not state the grounds upon which it is based, is not so defective as to deprive the person making the motion of the right to avail himself of. such errors as he could have had the benefit of had they been stated in the motion, provided the errors complained of appear on the face of the record or are shown by special bills of exceptions, or by bill of exceptions certifying all the evidence and the rulings of the court in. relation to the introduction or rejection of evidence on the trial, and that these errors are pointed out in the appellate court, (p. 318).</p> <p>3. Same — Presenting Questions in Trial Court — Exceptions.</p> <p>Where a bill of exceptions certifies all the evidence and shows in addition thereto the rulings of the trial court in admitting or refusing to admit evidence upon the trial, and the exceptions thereto taken at the time, this court will consider such exceptions without special bills of exceptions thereto, provided the particular questions are specified distinctly in the record on the motion for a new trial, or in an assignment of error, or brief of counsel in this court, so that this court may readily and safely find the particular questions or evidence to which the exceptions relate, but this court will not consider such exceptions without such specification, although the bill of exceptions certifying the evidence notes them. (p. 319).</p> <p>4. Same — Bill of Exceptions — Purpose.</p> <p>The purpose of a bill of exceptions is to exhibit on the record the supposed mistakes of the trial court which do not appear on the record and could not otherwise be brought before an appellate court for review and correction if erroneous, (p. 320).</p> <p>5. Trial — Instructions—Applicability of Case.</p> <p>Where an action of assumpsit is brought to recover damages for breach of a written lease of a mill and machinery therein, the property to be used by the lessee as a mill, and the lease contains no covenants as to the condition of the property at the time the lease takes effect, and there is no allegation in the declaration charging the defendant with damages on account of the defective conditions of the leased premises when the lease became effective, an instruction should not be given on motion of the plaintiff that, "The Court instructs the jury that if they believe from the evidence that the Hinton Milling Company was conducting a general milling business of which the defendant had knowledge and executed the lease with the knowledge that the machinery was .in a defective and improper condition of repair by -general wear and tear, and did not repair the same, and the plaintiff was thereby occasioned a loss, then the defendant would be liable for the damages resulting to plaintiff.” (p. 327).</p> <p>6. Damages — Breach of Lease — Speculative Profits.</p> <p>The defendant leased to the plaintiff its mill property and machinery for the term of five years and placed the plaintiff in possession. The lease contained a covenant requiring .the lessor to repair "any breaks not the result of negligence or unskillful operation.” In an action .by the plaintiff against the defendant for damages for the breach of the said contract, the defendant cannot reduce plaintiff’s demand by way of recoupment for "damages and injury to the trade and permanent business” of the defendant, "by reason of the unskillful and inferior character of the operation of the mill” "whereby the permanent custom of the mill was destroyed and the customers permanently driven off. ’ ’ The admission of the evidence by the court, at the instance of the defendant against the objection of the plaintiff, to establish such recoupment, is reversible error, (p. 325).</p>

Suits in equity by J. W. Wilson against the Reserve Gas Company and others and by the Reserve Gas Company ■against J. W. Wilson and others. From the decree in each case, J. W. Wilson appeals.

Action by B. R. Balisle against J. P. Johnson, Sheriff of McDowell County, and others, on his bond as sheriff. Judgment for plaintiff, and defendants bring error.

<p>1. False Imprisonment — Actions—-Evidence—Admissibility.</p> <p>In an action for false arrest and imprisonment, facts and circumstances attending the arrest and prosecution and hearing materially upon the character and extent of the plaintiff’s injury and the motive, purpose and mental state of the defendant, not admissible for the purpose of proving justification of the acts complained of, are admissible for the purpose of mitigating the damages, (p. 348).</p> <p>2. Arrest — Criminal Charges — Authority.</p> <p>An offense committed in one state does not justify arrest of the perpetrator thereof in another, otherwise than upon a warrant for his arrest as a fugitive from justice, (p. 346).</p> <p>3. False Imprisonment — A otions — Evidence—Admissibility.</p> <p>A judgment of conviction in a court of a state other than that in which the offense was committed is void for want of jurisdiction, and cannot be relied upon in an action for false arrest, as proof or evidence of probable cause for the criminal proceeding; but it is admissible as evidence upon the issue as to the amount of damages recoverable, (p. 346).</p> <p>4. Same — Defenses—Probable Crnise — Malice.</p> <p>False arrest or false imprisonment gives an absolute right to recover at least nominal damages, and neither probable cause to believe the injured party guilty of an offense nor lack of malice on the part of the defendant will legally justify the wrongful act or defeat the right of action, (p. 347).</p> <p>5. Same — Wrongful Arrest of Passenger.</p> <p>Railway agents, even though at the same time holding positions 'as public conservators of the peace, are under duty to abstain from making unlawful arrests of passengers, (p. 349).</p>

Suit in equity by the Welch Publishing Company against the Johnson Realty Company and others. Decree for defendants, and plaintiff brings error.

<p>Appeal from.' Circuit Court, Tyler County.</p> <p>Suit in equity by Lydia A. Ihrig against William F. Ihrig and others. From a decree for plaintiff, defendant William F. Ihrig appeals.</p>

<p>1. Mines and Minerals — Oil ánd Gas Lease — Assignments—Construction.</p> <p>A lessee of oil and gas, who has assigned a portion of his interest in the leases, and agreed with his assignee to pay all delay rentals until oil or gas is produced, and who, although stipulating that he is not to be bound to make explorations, agrees that, before he will -suffer any of the leases to lapse, he will notify such assignee and will assign to him all leases which he may not desire to keep alive, thereby impliedly covenants not to dispose of such leases to a stranger, without the consent of such assignee, (p. 871).</p> <p>2. Same.</p> <p>S,ueh a covenant between the lessee and his assignee is personal and does not pass by a transfer of the leases by .the covenantor to a stranger, so as to bind him. (p. 371).</p> <p>3. Assignments — Property Subject — Light of Action.</p> <p>Right of action for a breach of covenant is assignable; and no particular form of words is essential to pass the right; words manifesting a clear intention to assign are sufficient, (p. 371).</p> <p>4. Mines and Minerals — Oil and Gas Lease — Assignment—Action for Breach — Damages.</p> <p>In estimating damages, caused.by the lapsing of oil and gas leases, suffered by one who is jointly interested with another, who has covenanted to pay all delay rentals for the mutual benefit of both, it is proper to take into account the selling value of such leases at the time the right of action accrued, (p. 373).</p> <p>5. Evidence — Opinion Lvidence — Competency of Witness — Value of Lease.</p> <p>A person experienced in the oil and gas industries and who is reasonably familiar with the lands on which the- particular leases existed, lying in partially developed oil and gas territory, is a competent witness to testify concerning the value of the leases, (p. 373)..</p> <p>6. Damages — Bemittitur—Interest.</p> <p>Where, in an action for damages, the jury has assessed a certain 'amount and returned a verdict therefor, and finds that it shall bear interest from a-certain prior date, it is not error for the court to require the plaintiff to remit a certain portion of the interest, ascertainable by a certain date which determines the inception of the cause of action, and to enter judgment for the aggregate of principal and remaining interest, (p. 374).</p> <p>7. Trial — Verdict—Interrogatories to Jury.</p> <p>Interrogatories to the jury, which present immaterial questions of fact and such as, whatever might be the jury’s finding thereon, would not control the general verdict, are properly refused, (p. 375).</p> <p>(Mason, Judge, absent.)</p>

<p>1. Railroads — Killing of Stock — Negligence—Burden of Proof.</p> <p>In order to charge a railway company with damages for killing stock straying upon its tracks, negligence on the part of the company must appear, and the burden of showing it rests upon the plaintiff, (p. 379).</p> <p>2. Same — Killing of Animals — Vnamoidable Accident — Liability.</p> <p>The killing of a horse on a railroad track by a railroad train, under circumstances which show that such killing was an unavoidable accident, does not make, the railway company liable for damages therefor, (p. 379).</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit by J. W. Burns against John W. Waldron and others. From decree for plaintiff, the defendant named appeals.</p>

<p>Contempt — Punishment—Power of Court.</p> <p>The courts of this state have authority by statute to issue attachments and punish summarily for contempt in the following cases, among others, namely: for "misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice”, and for "misbehavior of an officer of the court, in his official character.” Section 27, chapter 147, Code.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>•Action by the Monongahela Valley Traction Company against Cora Windom and others. Judgment for defendants, and plaintiff brings error.</p>

Three suits, one by Charles D. Smith, one by John F. Repair and others, and one by J. F. Robinson and Simpson Ford, trading, etc., all against James Johnson and others. From decrees for plaintiffs, defendants appeal.

<p>1. Indictment and Information — Requisites of Accusation — General Rules.</p> <p>An indictment, to be sufficient, must describe the offense with reasonable certainty and precision, that the accused may prepare his defense and avail himself of a judgment of conviction or acquittal in bar of a further prosecution for the same crime; and that’ the court may be able, when necessary, to determine whether the facts alleged constitute an offense, or, if proved, support a verdict of conviction, and to impose the proper sentence therefor, if one should result from a trial of the ease.</p> <p>2. TTalse Pretenses — Indictment and Information — Conclusions and Matters of Fact — Elements of Offense.</p> <p>The averment of facts necessary to show on its face a common-law or statutory offense, not mere conclusions of law, is essential to a valid indictment; and an indictment which in general terms charges that the accused, as agent of a copartnership, did, with intent to sell suits of men's clothing, cause to be published a false and deceptive advertisement, to the effect that to each purchaser of a fifteen dollar suit sold the principal would give free a palm beach suit, well-knowing the employer did not intend to give such suit free but did intend to give a suit of an inferior grade or quality, no sale or gift or offer for sale to the public being averred or that the principal had or possessed' such suits or was a dealer therein for sale to the public, does not sufficiently charge a violation of $1, ch. 43, Acts 1915; §36, ch. 145, Barnes’ Code 1916.</p>

<p>1. Railroads — Operation—Injuries to Jnimals — Burden of- Proof.</p> <p>Negligence justifying- recovery against a railway company for killing dumb animals on the track must be established either by positive proof of the fact, or by facts proven from which negli-g-encc may reasonably be inferred, and the burden is upon the plaintiff to show negligence, (p. 410).</p> <p>2. Same — Operation—Injuries to Animals — Sufficiency of Evidence.</p> <p>Held in this ease that there was no positive evidence of negligence, and that the facts proven did not justify the jury in inferring negligence, (p. 410).</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by M. L. Haptonstall against tlie Boomer Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Arbitration and Award — Annulment and Award — Misapprehend sion of Arbitrators.</p> <p>An award of arbitrators, made under a total misapprehension of the function assigned thorn by the agreement of' submission, is a departure from the submission, justifying annullmént thereof by a court of equity, (p. 428).</p> <p>2. Boundaries — Arbitration—Submission—Construction—Province of Arbitrators. ' . .</p> <p>A submission of a controversy as to the location of division lines between two tracts of land, as determined by the deeds and any- other evidence the arbitrators may deem necessary to enable •them to arrive at a just and fair settlement of the controversy, does not authorize them to make a division of the land in dispute in such proportions as they may deem just and fair. (p. 428).</p> <p>• 3. Same — Arbitration—Agreement for Submission — Construction-Evidence.</p> <p>Upon such a submission, the evidence the arbitrators are authorized to consider in addition to the deeds, is such extrinsic evidence only as is consistent with the deeds and aids in the application thereof to their subject matter, and, in eases of conflict, the deeds are controlling, (p. 428).</p> <p>4. Judgment — Bar—Dismissal by Agreement.</p> <p>Dismissal of a suit agreed, on the motion of the plaintiff and by consent of • the fefendant, does not estop the plaintiff from prosecuting another suit respecting the same matter, in the absence of proof of an actual settlement of the controversy by an agreement or of a status which it may be fairly regarded as having been the intention of the parties to maintain by such dismissal. (p..427).</p> <p>5. Same — Dismissal by Agreement — Estoppel—Subsequent Award.</p> <p>Nor will such dismissal, in the absence of such proof, sustain a subsequent award against one of the parties, respecting the subject matter of the suit. (p. 427).</p> <p>’ 6. Boundaríes — Equity Jurisdiction — Deeds.</p> <p>Equity has jurisdiction to locate a boundary line, not determinable otherwise than by the quantity of the land conveyed by the deed. (p. 430).</p> <p>7. Deeds — Descriptive Clause — Construction and Effect — Boundary , Dine.</p> <p>The descriptive clause in a deed, definitely locating all the lines save the last or closing -one and saying it shall run from one monument to another "so as to make” a definite quantity of land, expresses intention to limit the quantity of land conveyed by the deed to that so specified and makes such quantity a controlling element in the location of such line, even though the result may be to make it a curved or angular one, instead of a straight one between the two points named, as it would be, but for such limitation as to quantity, (p. 432).</p> <p>8. Boundaries — Location of Boundary Line — Jurisdiction m Equity.</p> <p>In- the location of such a line, the parties are governed by considerations of reason, fairness and practicability, and, in the event of their inability to agree upon the location, either may resort to a .qourt of equity for a.decree establishing the line. (p. 432).</p> <p>9. Deeds — Description—Certainty—Boundary Dine.</p> <p>Such a call in a deed is not void for uncertainty. The deed grants the quantity of land specified and provides sufficiently certain means of identification thereof, (p. 433).</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by H. R. Carper and another against the United Fuel Gas Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Corporations — Designation—Variance Between Bill and Exhibit.</p> <p>■ A bill describing defendant as “The Board of Trustees of Walton Lodge No. 132, Independent Order of Odd Fellows, a corporation,” is not demurrable because it exhibits a written contract, which the bill seeks to have enforced, signed, “Walton Lodge I. 0. O. F. 132. By C. D. Moore, Its Agent.” Either name may identify the corporation that is sued, (p., 146).</p> <p>2. Beneficial Associations — Corporate Powers.</p> <p>Trustees holding real estate for the use of a society of Independent Order of Odd Fellows, are constituted a corporation by see. 6, eh. 57, Code, and may contract, sue and be sued as such, (p. 448).</p> <p>3. Same — Purchase of Property — Validity of Contract — Presumption.</p> <p>An agreement by such corporation to purchase a lot of ground containing no greater quantity than it is allowed by law to hold, will not be presumed to be an ultra vires act. (p. 448).</p>

<p>. 1. Interpleader — Grounds of Belief — Interest of Interpleader.</p> <p>A plaintiff in a bill of interpleader must occupy an- impartial position respecting the issue he seeks to have litigated between the claimants, (p. 452).</p> <p>2. Same — Grounds of Belief — Interest of Claimants.</p> <p>A bill of interpleader, which discloses that plaintiff has personally obligated himself to one of the two claimants of a fund in his hands, respecting such fund, is bad on demurrer, (p. 453).</p> <p>3. Same — Right of Action — Persons Entitled.</p> <p>A sheriff who has levied am execution upon goods of the debtor* and thereafter releases them in' consideration of a check, made and delivered to him by a stranger to the execution, not in payment thereof, but to prevent a sale <pf the goods, and who is later sued in separate actions by the maker of the cheek and the execution creditor, can not maintain a bill of interpleader to compel them to litigate between themselves their respective rights' to the fund, (p. 453).</p> <p>(Mason, Judge, dissenting.)</p>

<p>1. Pleading — Plea in Abatement — Time for Filing.</p> <p>See. 16, Ch. 125, Code, limiting the time for filing pleas in abatement, applies only to pleas to the jurisdiction of the court, where the declaration or bill shows on its face proper matters for the court’s jurisdiction. It does not apply to a plea of ne wngnes administrator, which may be filed within the same time as a plea to the general issue, (p. 456).</p> <p>BxecutORS AND Administrators — Appointment—Hight to Ap: pointment.</p> <p>The sole distributee of a decedent, if sui juris, has an absolute right to be appointed administrator, and if he. does not desire the appointment, or is unable to qualify, may designate the person to be appointed in his stead, (p. 457). •</p> <p>Same.</p> <p>Where administration has been granted to a stranger, and the sole distributee, who has not previously declined the appointment, thereafter appears before the county court or the clerk thereof in vacation, and designates a suitable person for the appointment in his stead, it is the duty of the court or clerk, as the ease may be, to appoint such person; and the order appointing him operates as a revocation of the former appointment, by virtue of See. 5, Ch. 85, Code. (p. 457).</p>

<p>1. Appeal and Error — Dismissal—Grounds—Want of Actual Controversy.</p> <p>A case is brought to this court upon appeal, challenging the jurisdiction of the court below, and a motion is made by the ap-X>ellees to dismiss it on the ground that 'since the appeal was awarded the appellants have become bankrupts and that ,tho ap-pellees’ claim which is the subject matter of the suit has been paid, and alleging that there is no longer apy substantial controversy between the parties,' and that the case is now a moot one; this court will not dismiss the case on motion of the appellees for these causes without disposing of the question of the jurisdiction of the circuit court. The appellants have the right to have this question adjudicated by this court, (p. 463).</p> <p>2. Receivers — Pleading-—Dill.</p> <p>The allegations of the bill in this case do not present a ease of equity jurisdiction, (p. 463).</p> <p>3. Same — Appointment—Jurisdiction of Equity.</p> <p>A special receiver may only be 'appointed in a' pending suit. A suit in equity does not lie for the sole purpose of appointing a receiver, but the court must have jurisdiction of the suit upon some other ground, before it can make the appointment. Baltimore Bargain Souse v. St. Clair, Trustee, 58 W.'.Va. 565, syl. 8'. (p. 464).</p>

<p>Error .to Circuit Court, McDowell' County.</p> <p>Action by S. J. Ferguson against the Middle States Coal & Coke Company. A verdict for defendant was set aside on motion of plaintiff, and defendant brings error.</p>

<p>1. CRIMINAL Law- — Trial—Continuance.</p> <p>Denial of a continuance, asked on. the ground of absence of, a witness, is not erroneous or improper where the affidavit in sup-: port of the motion therefor fails to show due diligence by the movant, adequate cause for the absence, and materiality of the testimony the' witness is expected to give on the trial, (p. 472):'</p> <p>2. Same — Appeal—Harmless Error.</p> <p>Rulings by the trial court on the admissibility of evidence will' not constitute sufficient ground for the reversal of a judgment,• unless the appellate court is able to perceive substantial prejudice, resulted therefrom, (p. 473).</p> <p>3. Indictment and Information — Sufficiency—Objections.</p> <p>An indictment for the unlawful sale of intoxicating liquorsj returned in January, 1915, in the form prescribed by §3, eh. 32A, Code, operative since July 1, 1914, is not defective or invalid, on. demurrer or motion to quash, for failure to state the time of the , commission of the offense other than by the use of the statutory expression ‘1 within one year next prior to the finding of this ‘indictment. ” (p. 474).</p>

<p>1. Quieting Title — Interest of Plaintiff — Life F,state.</p> <p>One having an interest in land, though less than a fee, as an estate for life, and possession, may in a proper ease maintain a suit in equity to remove a cloud therefrom, (p. 478).</p> <p>2. Wills — Construction—Estate Conveyed.</p> <p>Where an absolute fee in land is given by will, such estate will not be cut down by a subsequent clause, though in the same paragraph, which also gives to the same devisee the personal estate of' the testator "during the term of, her natural life”, and then to be divided equally between the testator’s heirs, no other provisions of the will indicating a clear intention of the testator to also limit the estate in the land to a life estate therein, (p. 478)</p>

<p>1. Equity — Proof of Title — Admission in Answer.</p> <p>.In.a suit to remove cloud upon plaintiff’s' title and to enjoin the cutting of timber on his land, admission in defendant's answer of a common source of title, though not alleged in the bill, will excuse plaintiff on the trial from proof of title back of the common source so admitted, (p. 482).</p> <p>2. Same.</p> <p>Such common source of title not being the foundation for the relief prayed for, but only a fact provable under the allegation of good title in-plaintiff and no title in defendant, and possession, the proposition stated in the first point of the syllabus does not contravene the rule that admissions in an answer to a bill in chancery cannot lay the foundation for relief under any specific head of equity, unless substantially set forth in the bill, (p, 483).</p> <p>3. Injunction — Jurisdiction in Equity — Title of Plaintiff.</p> <p>“Where plaintiff’s title is clear, as matter of law, and resort to a jury trial on questions of fact is unnecessary, equity will take jurisdiction to enjoin trespass and remove cloud upon the title to land. (p. 4S3).</p> <p>4. Boundaries — Description-—Construction.</p> <p>The closing call in a deed from “a large Yellow Pine and Maple, 2 poles West of middle fork of -Ugly, thence by protraction with the general course of Ugly down, S. 32 degrees W. 1.70 poles to the beginning”, a '/white oak .on the bank of Ugly Branch”, properly construed with reference to the facts proven in this ease, is a call for a straight line between the two termini, and not for the water course, as the boundary line. (p. 483).</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Suit by J. 0. McClung and others against C. L. McClung and others. From decree for plaintiffs, the Sun Lumber Com.pany and others appeal.</p>

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

<p>1. Judgment — Conclusion—Matters Concluded.</p> <p>A former decree adjudging plaintiff not entitled to specific execution of certain covenants contained in Ms deed to a railway company for a right of way, because only, nominally damaged by breaches thereof, constitutes a complete bar and estoppel to a second suit for the same relief, where the facts remain the same or substantially the. same as in the former suit. (p. 506). ^</p> <p>2. Railroads — Bight of Way — Deeds—Construction.</p> <p>Where in such grant of a right of way the deed or contract contains a covenant on the part of the railway company to make road or farm crossings over the railway tracks, and no right is reserved or granted to the land Owner to enter and build and maintain such crossings, owing to the character thereof and the continuing necessity therefor, a covenant for permanent maintenance thereof by the railway company is implied, a covenant which runs with the land. (p. 509).</p> <p>3. Same — Bights of Way — “Bailroad Crossing.”</p> <p>The words "road crossing” contained in such covenant, construed with reference to the character of railway crossings and the facts and circumstances surrounding the making oil the deed, and what was subsequently done by the railway company thereunder, as including the bridge over a stream of water, the course of which through the land of the grantor, by subsequent agreement and at the time of the building of the railroad, was changed by the railway company so as to run parallel to and, partly • on the; right of way and partly on the land of the grantor, and all other approaches to the crossing over and on both sides of the tracks. (P: su). •</p> <p>4. Same — Right of Way — Change of Water Course.</p> <p>Where a railway company by agreement with the adjoining land owner and for adequate consideration paid • has rightfully turned, the course of a stream of water, and in. the absence of a. contract or covenant to do so, it is not liable thereafter to observe the action of the water, and so to protect the banks or take other timely measures as will prevent encroachment of it on the adjoining land, (p.' 513). ’ '</p> <p>5. Same.</p> <p>Where a land owner has granted to a railway company a right of way through his land and for a consideration paid has also given it the right to so change the course of a stream of water ■through his land, it is his duty to do what is -necessary to pro--tect the bank of said stream on his.land against erosion by the waters therein, and if his failure to do so results in damages^ to his land, he cannot recover such damages from the railway eom-' pany. (p. 514). ■' - • -</p> <p>6. Same — Right of Way — Agreements.</p> <p>Where the bridge originally built by the railway company across such water course has decayed or been washed away by high waters, and by reason of the negligence of the land owner to proi tect the bank on his land the channel of the, stream has been greatly deepened and widened, the whole burden of rebuilding such bridge and approaches thereto over sueh stream will not be enjoined upon the railway company, but it may bé required to join with the land owner in rebuilding sueh bridge and to pay or contribute thereto such sum as would have been required to build and maintain such crossing and bridge if the conditions were the same as when it built the original crossing and bridge over the' water course and right of way. (p. 515).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by B. 0. Swope, administrator, against the Keystone Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Intoxicating Liquors — Offenses—Transportation of Liquors.</p> <p>Chapter 13, Acts 1913, as amended by chapter 7, Acts 1915, ch. 32A, Code, Barnes’ Handy Edition, does not expressly or impliedly inhibit common carriers from transportation of passengers carrying with them, in their own personal custody, care and control, packages of intoxicating liquors, labeled in accordance with the requirements of see. 31 of said chapter, (p. 532).</p> <p>2. Same.</p> <p>Section 7 of said chapter impliedly authorizes such transportation, by the use of terms from which legislative intent to do so is plainly inferable; and see. 31 thereof, expressly recognizing and excepting the common law right of a citizen to bring intoxicating liquors into the state, for his personal use, and prescribing the manner of doing so, without denying to him the use of any of the means of travel ordinarily available and employed, at the date of the passage of the act, impliedly authorizes the use of such methods of travel in the carriage of such liquors, (p. 532).</p> <p>3. Statutes' — Construction—Grant of Bight.</p> <p>An express statutory grant of a right, power or privilege, or exception of a previously existing one, in the absence of any prescription of the method of exercise or enjoyment thereof, impliedly carries with it right to make use of all the ordinary methods and means of such exercise or enjoyment, (p. 534).</p> <p>4. Intoxicating Liquors — Abatement of Nuisance — Injunction.</p> <p>A bill praying an injunction against transportation of persons so carrying intoxicating liquors, by a common carrier, unless such carrier, through its agents, servants and employees, has first ascertained by due diligence and caution and in good faith, that such liquors are not intended for use or disposition by such persons, contrary to law, and not charging the rendition of aid and assistance to any particular person in his violations of the prohibition laws, by the carrier so proceeded against, raises no question as to right in the state to enjoin such transportation as to particular individuals, (p. 538).</p> <p>5. Nuisance — Public Nuisance — Abatement—Injunction.</p> <p>In the absence of a statute conferring it, equity has no jurisdiction to abate a public nuisance, either civil or criminal, at the instance of an jnclividual or the state, not affecting or injuring the enjoyment of property or other personal rights. Injunction is not a remedy for the enforcement of criminal laws generally, (p. 536).</p> <p>■6. Intoxicating Liquors — Abatement of Nuisance — Injunction.</p> <p>■ Under the authority to abate nuisances, conferred by secs. 14 and 17, eh. 32A, Barnes’ Code, the injunction goes primarily against places in which the prohibition laws are habitually violated and incidentally against persons who maintain such places. Such authority does not extend to violations of the prohibition laws generally or in ways other than those designated in said sections. Neither .said sections nor any other law confers upon courts of equity, general power to govern the state by injunction, in so far as its laws pertain to the subject of intoxicating liquors. (P. 537).</p> <p>7. Nuisance — Abatement—Injunction.</p> <p>In those instances in which injunction lies to prevent conduct amounting to a nuisance abatable by such remedy, it is limited to unlawful acts and is not available as a means of prevention of lawful acts. Only so much of such conduct as is unlawful can be restrained, (p. 539).</p> <p>(Mason, Judge, absent.)</p>

Bill in equity by Reuben Anderson against Anthony Bowen, Mayor of the City of Fairmont, and others. From a decree for plaintiff, defendants A. S. Fleming and others appeal.

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Suit by James Sanders against Clinton B. Meredith, pastor, and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Curtesy — Right—Desertion—‘ ‘ Leave. ’ ’</p> <p>A husband, who leaves his wife except for cause such as would entitle him to a divorce, and, without any intention of renewing' cohabitation with her, takes up his residence in another state, where he thereafter continuously resides in disregard of his marital obligations, leaves her within the meaning of section 16, chapiter 65 of the Code, and is barred of curtesy in her real estate, although he registers as a voter and votes in this state, is assessed with and pays taxes on personal property and personally supervises farming operations on his lands therein, thereafter leases such property in consideration of support and maintenance of himself and family and payment of taxes, occasionally visits his family and upon the request of his wife transacts business for her, but, though ostensibly friendly, each treats the other on such occasions as a stranger to the marriage tie. Under such circumstances, a deed executed by him, purporting to convey courtesy in her real estate, passes no interest therein to the grantee, (p. 577). • ,</p> <p>, 2. Husband and Wipe — Married Women — Conveyances.</p> <p>An instrument purporting to be a deed, granting the separate estate of a married woman living apart from her husband, though upon a consideration deemed valuable in law, and signed, sealed, and acknowledged by her, the husband not joining therein, is void as a conveyance, unless the acknowledgment appended thereto contain the recitals required by section 6, chapter 73 of the Oode, but such instrument is valid as a contract of sale enforceable against her and her heirs, (p. 5S0).</p> <p>(POFFENBARGEE, JUDGE, dissenting).</p>

<p>'1. Insane Persons — Actions—Next Friend.</p> <p>An insane plaintiff, for whom no committee has been appointed, may sue by next friend, and, although not expressly authorized by the court to act as such, the next friend may continue the prosecution of the ’suit, unless he is removed by the court, (p. 588).</p> <p>U. Same.</p> <p>Pleas in abatement, denying the right of a lunatic to sue by next friend, and challenging the fitness of the person assuming to act as such, are addressed to the court, (p. 588).</p> <p>5. Abatement and Revival — Pleading—Pleas—Determination.</p> <p>If issues are joined on pleas in abatement, and on pleas in bar, at the same time, and defendant goes to trial upon the merits, without asking ’that a trial on the pleas in abatement be first had, he thereby waives them. Moreover, by a decision on the merits of the case, the court impliedly overrules such pleas in abatement as present matters proper to be determined by the court, (p. 588).</p> <p>4. Insurance — Proofs of Loss — Waiver of Objections.</p> <p>If the insurer, after being furnished an imperfect or incomplete proof of loss, resists payment 'on the sole ground that the insured was not -the owner of the property, he thereby waives further proof of loss, and is estopped to set it up as a defense, when sued on the policy, notwithstanding a nonwaiver agreement entered into to preserve the rights of the parties pending an adjustment of the loss. Such nonwaiver agreement does not preclude an es-toppel on account of subsequent conduct and statements of the insurer, (p. 590).</p> <p>5. Same.</p> <p>If the adjuster makes up a proof of loss from data furnished him by the insured, or his agent, which includes an itemized list of the goods saved from the fire, with the value of each item, and makes no demand that they be appraised, ho thereby waives the provision in the policy relating to their appraisement, (p. 593).</p> <p>6. Same — Forfeiture—Iron Safe Clause.</p> <p>The insured, a retail merchant, who endeavored to conduct a cash business, and who kept a book showing his last inventory and all purchases and cash sales made by him, and preserved it in an iron safe in the building containing the property insured, has substantially eomplie'd with the promissory warranty, commonly called the "Iron Safe Clause”, notwithstanding he occasionally sold goods on short time credit and made memoranda thereof on slips of paper or cards, which he filed away in his desk, until payment therefor was made, when he immediately entered the amount in his cash account, (p. 593).</p>

<p>1. Infants — Actions—Appointment of Next Friend — Necessity.</p> <p>It is not necessary that a next friend should be appointed by a court, except in a proceeding before a justice, in order that he may prosecute a suit for, and in the name of an infant, (p, 599).</p> <p>2. Venue — Transitory Action — Personal Injuries.</p> <p>An' action for personal injury is transitory and follows a plaintiff wherever he goes. Such action may be brought wherever jurisdiction of defendant may be obtained, (p. 600).</p> <p>3. Corporation — Action Against Foreign Corporation — Acceptance of-Service — Binding Effect.</p> <p>A foreign corporation having its principal office in another state, but doing business in this state, may be sued here, and service of process against it, accepted by the state auditor, is binding, (p. 601).</p> <p>4. Negligence — Declaration—JRequisites.</p> <p>In an action for negligence the declaration need not aver the particular act of negligence; it is sufficient if it avers the manner and means of 'plaintiff’s injury, and that it was caused by defendant’s negligence, (p. 601).</p> <p>5. New Trial — Verdict—-Grounds for Setting Aside — Evidence.</p> <p>A verdict, supported by oral testimony which is wholly inconsistent with natural laws and physical facts, admitted to be trae or established by uncontroverted evidence, showing such testimony to be false, should be set aside as being contrary to the weight of evidence, (pi 602).</p> <p>6. Electricity — Maintenance and Operation of Wires — Core Bequired.</p> <p>An electrical power company is required to exercise a high degree of care in the construction, maintenance and operation of its wires, charged with a dangerous electric current. But such high degree of care is only reasonable and is to be determined by the usage and custom prevailing among electric power companies, (p. 605).</p> <p>7. Same — Negligence—Evidence—Personal Injuries.</p> <p>The unexplained breaking of an insulator which causes a highly charged electric wire to sag from the arm of the pole supporting it tb a distance of six or seven feet from the ground, at a place remote from any public highway, and its remaining-in that condition for a period of twenty-four hours, do not prove negligence, in the face of direct, positive and undisputed testimony that reasonable care was observed in the construction, maintenance and operation of the line. In such ease, the presumption of negligence arising from the mere falling of the wire is overcome by direct proof of diligence, (p. 605).</p> <p>S. Negligence — Personal Injuries — Plight of Action ■— What Lam Governs.</p> <p>In an action brought in this state to recover for personal injury received in another state, the right of recovery depends on the laws of such other state, (p. 606).</p> <p>9. Appeal and Error — Personal Injuries — Proof.</p> <p>Injury, without proof of negligence, gives no right of recovery; and, where it is shown by the overwhelming weight of evidence that the injury resulted from plaintiff’s negligence, or was an inevitable accident, a verdict for plaintiff can not stand, (p. 607).</p> <p>10. Trial — Direction of Verdict — Evidence.</p> <p>If the evidence is such that a verdict for plaintiff, if one should be so found, should be set aside, the court may direct a verdict for the defendant, (p. 610).</p> <p>(Miller, Judge, dissenting).</p>

<p>1. . Master and Servant — Employment Contract — Breach.</p> <p>A contract between employer and employe for services to be rendered for a period of nine months, for a stipulated salary payable monthly, is an indivisible contract and is broken by the refusal of the employer to permit the employe to perform his part of the contract, (p. 614).</p> <p>2. Judgment — Master and Servant — Bes Judicata — Breach of Employment Contract.</p> <p>For such breach plaintiff can bring but one action and he' is entitled to recover entire damages therein. He can not elect to treat the contract as still in force and recover on an indebitatus assumpsit count for unearned salary, but can only recover damages for the breach. Judgment in one action, in such case, is a bar to a subsequent suit. (p. 614).</p> <p>(Poffenbarger and Midler, Judges, dissenting).</p>

Proceedings by J. D. S. Mercer, administrator, for compensation for the death of a deceased servant. Compensation was denied, and from the order of Lee Ott, State Compensation Commissioner, claimant appeals, and the dependent mother's representative joins therein.

<p>Error to Circuit Court, Marshall County.</p> <p>William Hurley was convicted of violating the prohibition law, and he brings error.</p>

<p>1. Highways — Improvement—Materials—Submission to Popular Vote.</p> <p>The county court is without authority to substitute one type of road construction material not authorized by an election had pursuant to §5, ch. 8, acts 2nd Ex. Sess. 1915 (Barnes’ Code 1916, oh. 43, §56a25a), for another type of material expressly submitted to the qualified voters of the district affected and approved by them at an election held and conducted therein, under said statute, for that purpose, (p. 645).</p> <p>2. Same — Improvement—Submission to Popular Vote.</p> <p>When at an election so held and conducted the voters authorize a bond issue for the improvement of a road between certain designated points connected by two roads virtually of the same general character and length, neither of them being specifically mentioned in the petition or order of submission, the county court is vested with ample authority to determine which road it will undertake to improve by the expenditure of the proceeds of such authorized bond issue, (p. 646).</p> <p>3. Statutes — Repeal—Implication.</p> <p>When two statutes of different dates purport to cover the whole of the same subject matter, the later one, when plainly showing it was intended to have that effect, works a repeal of the other by-implication, and becomes a substitute therefor, although it' does not purpore to amend and re-enact the prior statute but repeals all acts inconsistent therewith, (p. 646).</p>

Petition by Sigmond Kohn and another for writ of prohibition against Isaiah H. Herndon, Judge, etc., and others, to prevent consideration of an appeal from justice court.

Action by K. G. Bennett against the Farmers’ Mutual Fire Association of West Virginia. There was an order setting aside the default judgment, and plaintiff brings error:

<p>Application by Philip Gilbert for writ of habeas corpus against J. Frank Johnson, Sheriff.</p>

Suit by Sam Hissam against J. W. Moorehead and others. From an order denying his motion to modify a mandatory injunction, plaintiff appeals.

<p>. Petition in the nature of an original petition by D. J. Howell against the Public Service Commission.</p>

<p>Petition by the Chesapeake & Ohio Railway Company for the suspension of an order of the Public Service Commission.</p>

Court, Harrison County. Action by Walter D. Willson and another against E. Clark lee and J. W. Trembly, doing business as the Elk Grove Realty Company. A default judgment for plaintiffs was set aside, and plaintiffs bring error.

Suit by the Reynolds Memorial Hospital and others against the County Court of Marshall County. There was judgment for plaintiffs, and defendant brings error.

<p>Petition by C. E. Baker and others for a writ of prohibition •against W. II. O’Brien, as Circuit Judge, and others.</p>

Proceeding by Cleanthe Cnlurides, for compensation for the death of a deceased servant. Prom an order, of Lee Ott, State Compensation Commissioner, denying compensation, applicant appeals.

<p>1. Corporations' — Foreign Corporations — Ancillary Receivers.</p> <p>Non resident creditors of an insolvent foreign corporation being-interested therein may maintain a suit in the courts of this state to obtain the appointment of an ancillary receiver of the assets of the corporation located here, and for the sequestration thereof for the benefit of all creditors, (p. 703).</p> <p>2. Same — Corporate Creditors — Loeal Creditors.</p> <p>Resident general creditors of such defunct corporation not having previously obtained liens upon its property are not entitled to any priority or preference over non resident creditors in the distribution of the funds derived from such assets by the local or ancillary receiver; all creditors of such corporation of the same class are on principles of equity entitled to share ratably in the distribution of the whole estate of such corporation, regardless of their places of residence, (p. 705).</p> <p>3. Same — Foreign Corporations — Loeal Creditors.</p> <p>But the courts of the loeal or ancillary jurisdiction should before allowing- a domiciliary receiver or other representative of such corporation to withdraw the funds sequestrated there protect the resident domestic creditors out of such funds or otherwise to the extent of their distributive shares in the whole estate of the insolvent corporation, (p. 705).</p>

<p>1. Divorce — Grounds for — Desertion.</p> <p>In a suit for divorce on the ground of willful. desertion and abandonment, evidence of the breaking off of matrimonial cohabitation and of living separately and apart is not sufficient; there must-also be evidence of intent to desert without cause, and the burden is upon the plaintiff to show that defendant left without justifiable cause, excusing himself or herself from blame, (p. 710).</p> <p>2. Same — Decree—Conclusiveness—Matters Concluded.</p> <p>In such suit the defendant is not concluded by a former decree in a suit denying him or her a divorce from bed and board based on alleged cruel and inhuman treatment. The issues in the two suits are not the same. (p. 711).</p> <p>3. Judgment — Conclusiveness—Pleading Judgment.</p> <p>A plea of former adjudication, based on a different cause of action, interposed to a cross-bill, which fails to allege that the matter of the cross-bill was put in issue by the pleadings .upon which the prior decree was predicated, but only that the plaintiff in the cross-bill undertook by his evidence in the former suit to prove the matters set up> in such cross-bill in support of his bill in the former case, is not sufficient in law, and should be rejected on demurrer, (p. 712).</p> <p>4. Divorce — Pleading—Amendment.</p> <p>The general equity rule against the allowance of amended answers is inapplicable to the filing of a cross-bill seeking affirmative relief against the plaintiff, and this principle is applicable to a cross-bill filed in' a suit for divorce, (p. 712).</p>

<p>1. Electricity — Care of Mleetrio Wires.</p> <p>In the erection and maintenance of its trolley irires carrying heavy currents of electricity, on or across' a space over which telephone wires are strung and operated, an electric railway company is bound to make approved and effective provision against communication of its current to the telephone wires, (p. 716).</p> <p>2. Same — Care of Wires' — Mes Ipsa Loquitur.</p> <p>If its current escapes through or by means of. such wires and causes injury to a person or to property in a highway or other place in which he or it may rightfully be, the maxim, res ipso loquitur, applies; and the occurrence of the injury by means of the current so diverted is evidence of negligence on the part of the railway company. To exonerate itself from such charge it must prove its adoption of approved and effective means to prevent such diversion, (p. 717).</p> <p>3. Same — Injuries—Action—Jury Question.</p> <p>Proof of an injury in a public road in such’manner, by a telephone wire under which a trolley wire has been placed, at a distance of only about eight inches, an unexplained break in the former by reason of which it came into contact with the latter and former interference of these wires, causing injury to telephones and houses, to the knowledge of the railway company, make an issue proper for submission to a jury, as to whether the railway company was negligent in the maintenance and operation of its wires, (p. 717).</p> <p>4. Same.</p> <p>Whether a farmer inconversant with the subject of electricity, and inexperienced in the use thereof, is guilty of negligence in disconnecting a wire so charged from his house and placing the end thereof in a public road, to prevent injury to his property and family, by methods indicative of utter lack of appreciation of its dangerous character, is a question proper for jury determination, (p. 717).</p>

<p>1. Justices or the Peace — Appeal—Pleading.</p> <p>A ease appealed from a justice's court may be tried in the circuit or intermediate court, as the case may be, on the pleadings and issue made in the justice's court, whether the pleadings be oral or in writing, (p. 723).</p> <p>2. Same — Pleading—Issue Made.</p> <p>In an action, brought in a justice’s court and stated in the summons to be for damages for wrong-, the justice’s docket shows that defendant pleaded “not guilty’’, and a trial was had. Held: that the record shows a proper joinder of issue, even if such were indispensable, and a literal compliance with Secs. 50 and 169, Ch. 50, Barnes’ Code. (p. 723).</p> <p>3. Evidence — Leases—Admissibility.</p> <p>When the termination of the tenancy is a disputed question between the landlord and one claiming to be a subtenant, the lease contract between the landlord and his immediate lessee is admissible evidence, (p. 723).</p> <p>4. Contracts — Evidence—Signature—Errors.</p> <p>Where one of the parties to a contract is unable to write and makes his mark to signify his assent to it, and directs another to write his name, and ho writes it as ho understood it to be pronounced, which happens not to be the true name, such mistake is subject to explanation, and does not vitiate the contract. (p. 727).</p> <p>5. Landlord and Tenant' — Eight of-Action — Be-ewtry.</p> <p>A tenant is not entitled to damages to his business, conducted on the leased premises, occasioned by the lawful re-entry of the landlord after the termination of the tenancy, (p. 727).</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by L. Keenan against C. H. Scott and others. From a decree for plaintiff, defendants appeal.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by the- Davis Colliery Company against W. E. and I. B. Westfall. Judgment for defendants, and plaintiff brings error.</p>

<p>. Judicial Sales- — Partition—Confirmation of. Sale.</p> <p>Until confirmation, a judicial sale is an incomplete bargain. Whether the court will confirm the sale must depend, in a great measure, on the circumstances in each case. Either party may object. The purchaser becomes a party to the suit and may have any mistake corrected by the court.</p> <p>Seld: Under the circumstances of this case, the court should have refused to confirm the sale, and have dismissed the rule.</p>

<p>1. Municipal Corporations — Torts—Defeats in Streets.</p> <p>Section 56a XLIX, chapter 43, Code 1913, imposes an absolute liability on incorporated cities and towns for injuries sustained on account of their public streets and sidewalks being out of repair, or obstructed in such manner as to make it dangerous to travel thereon in the ordinary modes, (p'. 753).</p> <p>2. Same — Defeats in Streets — “Repair.”</p> <p>The word "repair” as used in the foregoing statute includes obstructions to the highway as well as defects therein, without regard to the manner in which or the person by whom such obstructions were placed there, (p. 753).</p> <p>3. Evidence — Municipal Corporations' — Judicial Notice — Objections to Evidence — Waiver.</p> <p>Courts do not judicially take notice of the ordinances of municipal corporations unless directed by statute to do so, except that the courts of a municipal corporation of a city will take judicial notice of the ordinances of such city, but where an ordinance of a city is put in evidence without proof of the existence of such ordinance, or that it is an ordinance of the city, and no objections are made to its introduction at the time, proof of its existence and authenticity will be waived, (p. 756).</p> <p>4. Municipal Corporations — Streets—Defects in Streets — Contributory Negligence.</p> <p>A traveler along a public sidewalk having two reasonably convenient ways for his journey, one by continuing on the sidewalk which is known to him to be dangerous, and the other by leaving the sidewalk.and traveling along the street known to him” to be safe, assumes the risk if he takes the dangerous way, and he can not recover for an injury he may thereby sustain.; but in the absence of knowledge as to the condition of the sidewalk along which he was traveling, he will not be denied compensation for this reason alone, when he pursues Ms way along the sidewalk, although it may be dangerous. The question of whether or not he knew it was dangerous, or by the use of proper care could have known it, is for the jury. (p. 757).</p> <p>5. Same — Streets—Actions for Injuries — Instruction.</p> <p>An instruction wMeh tells the jury that if they believe from the evidence ‘ ‘ that the plaintiff was injured by a fall caused by the ice accumulated upon the sidewalk "by the freezing water discharged from the down spout upon, the Arendt 'building” (a building abutting on the sidewalk) “so as to flow upon and along the sidewalk making said sidewalk dangerous to walk upon, and the plaintiff at the time used common and ordinary care in passing over and walking on tho said sidewalk at that point”, the defendant “is liable for the damages resulting to the ’plaintiff from said" injury”, when read in connection with another instruction which tells the jury that “before they can render a verdict for the plaintiff, the plaintiff must prove her case, as alleged in the declaration, by a preponderance of the evidence, and that should they find the evidence evenly balanced, the verdict must be for the defendant,” is not erroneous, (p. 758).</p> <p>6. Same.</p> <p>An instruction properly defining the duties of the defendant in constructing and keeping in repair its sidewalks, and the circumstances to bo considered in determining whether the sidewalk was in repair and wdiat constituted repair, was proper in the case at bar. (p. 758).</p> <p>7. Same — Streets—Actions for Injuries — Snow and Ice.</p> <p>Instructions in the case at bar which tell the jury that if they believe from the evidence that the snow and ice upon which plaintiff fell “-was not formed in humps, ridges or hills”, “but was only dangerous because of the slipperiness of the ice and the covering of the snow,” such condition although dangerous was not such a defect as will render the city liable for damages, and that it sufficiently exempts the city from liability' that such ice was comparatively smooth and practically uniform in thickness upon the sidewalk, are erroneous and properly refused, (p. 759).</p> <p>8. Same — Streets—Actions for Injuries — Instructions—“Ordinary Care. ’ ’</p> <p>An instruction in the case at bar which properly defines what is nieant by ‘ ‘ ordinary care ’ is proper and should be given when asked for. (p. 760).</p> <p>9. Same — Streets—Actions for Injuries — Snow and Ice.</p> <p>The following instruction asked for by defendant was properly refused: “The jury is instructed that if they believe from the evidence that the plaintiff was injured as alleged in the declaration, by an obstruction of snow and'ice on the sidewalk, the question whether the defendant was negligent in allowing such obstruction to be and remain depends upon all the circumstances, and that if the jury believe from all the evidence that owing to the condition of the weather, repeated thawing, and freezing, said ice was frozen tight to the pavement, and that a like condition existed all over the sidewalks of the city, and that by reason thereof it was impracticable for the city to have removed such ice, then the jury must find that the city was not negligent in failing to remove said ice, but had the right to await a general thaw before removing the same, and if the jury find from the evidence that no such thaw had occurred after forming of the ice and before the accident, they shall find for the defendant.” (p. 760).</p>

<p>Action — Pleading—Misjoinder of Causes — Deurmrrer.</p> <p>Two causes of action, one arising out of injury to property, and the other arising out of contract, can not be joined; and the defect may be taken advantage of on demurrer to the declaration.</p>

<p>1. Depositories — Public Moneys — Designation.</p> <p>Chapter 84, acts 1915, requires the sheriff to deposit public funds in his hands belonging to his county in depositories designated by him and approved by the county court, upon the execution and approval of the requisite indemnities therefor, (p. 767).</p> <p>2. Counties — Custody of Public Funds.</p> <p>The sheriff is the legal custodian of county public funds, including proceeds of bond issues authorized by the voters on a submission ordered by the court agreeably to §56a25a, ch. 43, Barnes’ Code. (p. 770).</p> <p>3. Mandamus — Subjects of Belief — Deposits of Public Funds.</p> <p>Mandamus lies to compel him to deposit such funds in depositories so designated and approved, upon execution of the neees-sary bonds and approval thereof as required by that act. (p. 770).</p> <p>4. Depositories — Public Funds — Effect of Contract.</p> <p>It is not a defense to the writ, asked for that purpose, that the county court, after the passage of the act and before it took effect, by contracts with certain banks "within the county made when the bonds were sold, procured the deposit of the proceeds therein without interest, on the certificates therefor issued by the banks, payable to the sheriff and maturing periodically from July 1, 1917, to July 1, 1918, and without interest thereafter so long as such proceeds remained on deposit in such banks. By-virtue of the act after it became effective, such contracts were inoperative and void, and ineffectual to bind or protect the parties thereto, (p. 771).</p> <p>5. Coktracts — Legality-Change im- Law.</p> <p>The illegality of jmrformance, due to the operation of a change in the law, renders nugatory and ineffectual agreements which, although originally made consistently with the rules of law then existing, are prohibited by such changes therein, (p. 771).</p> <p>6. Same — Violation of Statute — Public Funds — Deposit—Interest.</p> <p>An agreement to deposit public funds in bank without interest, in violation of a statute requiring the depositories to pay three per cent interest on daily balances, is illegal and void, and affords no protection to and imposes no liability on the parties thereto, (p. 771).</p>

<p>1. Action — Misjoinder of CoMse — Ejection of Passenger.</p> <p>A declaration in. ease against a carrier for wrongful ejection of a passenger is not subject to demurrer, on the ground of mis-joinder of severable causes in one count, where the contract of carriage is alleged as an inducement to. the real cause averred, (p. 777).</p> <p>2. Carriage — Carriage of Passengers — Ejection—Actions—Evidence.</p> <p>To justify ejection of a passenger by agents of a carrier for intoxication and .disorderly conduct, the proof must show with reasonable certainty that the passenger was intoxicated or was guilty of such conduct. Mere general statements will not avail as a justification, (p. 777).</p> <p>3. Judgment — Bar to Other Proceedings — Conviction in Criminal Prosecution.</p> <p>An unreversed judgme'nt of conviction for disorderly conduct while a passenger on a railroad does not operate to bar recovery for an unlawful arrest and detention on the same charge, (p. 779).</p>

<p>1. Appeal and Error — Review—Discretion of Trial Court — Grant of New Trial.</p> <p>It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving-judgment against the party claiming to have been aggrieved, (p. 783).</p> <p>2. Principal and Agent — Rights and Liabilities of Third Persons— VnaMthorised Ads — Ratification.</p> <p>Where an agent authorized to sell goods for his principal on particular terms, violates those terms, and makes sale thereof on different terms, and the principal with full knowledge of the facts and circumstances of the sale, afterwards elects to accept from the agent or his representatives notes and securities for the purchase money, he will be deemed to have ratified the unauthorized act of the agent and be bound by his contract, (p. 784).</p>

<p>1. Judgment — Trial by Issues — Judgment Non Obstante Veredicto.</p> <p>A judgment non obstante veredicto must be based upon the merits of the ease as disclosed by the pleadings, not in any sense upon the evidence adduced upon a material issue properly joined. It is not tantamount to a motion to set aside a verdict for lack of evidence to sustain it, nor can it be used for such purpose, or to obtain a judgment of dismissal for lack of evidence, (p. 787).</p> <p>2. Appeal and Error — Presenting Questions in Trial Court — Motion for New Trial — Necessity.</p> <p>By his failure to move for a new trial, in the trial court, a party against whom a verdict has been rendered, waives all errors committed by the court in the progress of the trial, including the erroneous overruling of motions having for their purpose relief from the verdict, on the theory of a total want of evidence to sustain it. (p. 788).</p> <p>3. Judgment — Non Obstante Veredicto.</p> <p>Though the trial court may deem the evidence insufficient to sustain a verdict for the plaintiff, it cannot, after having set aside the verdict at the instance of the plaintiff urging such action on other and untenable grounds, properly render a judgment of dismissal of the action, on a motion by the defendant for judgment non obstante veredicto, by way of correction of its error in refusing to direct a verdict for the defendant, for lack of evidence, (p. 789).</p> <p>4. Appeal and Error — Review—Nwmless Error — Instructions.</p> <p>Any errors that may have been committed against a plaintiff, in instructions pertaining to his right to recover only and not in any way touching the measure of damages, are rendered harmless by a verdict in his favor, for they manifestly did not influence the jury to liis prejudice, (p. 790).</p> <p>5. Same — Review—Questions of Fact — Damages.</p> <p>In a case of indeterminate damages for which the law gives no specific rule of compensation, the decision of the jury upon the amount of damages is generally conclusive, unless the amount is so large or small as to induce belief that they were influenced by passion, partiality, corruption or prejudice, or misled by some mistaken view of the case. (p. 790).</p> <p>6. Same — Disposition of Cause — Rendition of Judgment.</p> <p>If the defendant in error cross-assigns error in the action of ■ the trial court in setting aside a verdict, on the motion of the plaintiff in error, upon insufficient grounds, or upon its own motion, for lack of evidence, in a case in which, the defendant in error has moved for a new trial and then withdrawn its motion and'moved for judgment non obstante veredicto, on the ground of lack of evidence to sustain the verdict, the appellate court, on reversing the judgment of dismissal improperly rendered on said last motion, will re-instate the verdict and enter judgment thereon, (p. 789).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Zula Bowen against E. E. Parsons. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Putmau County.</p> <p>Action by Joel Stanley against the United Fuel Gas Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the Toledo Scale Company against L. B. Bailey, doing business etc. Judgment for defendant, and plaintiff bring error.</p>