Volume 79 — West Virginia Reports

Error'to Circuit Court, Jefferson County. Action by William MeSherry against the County Court of Jefferson County. After judgment for plaintiff be died, and the defendant prosecuted error against George B. Whitting-ton, administrator of plaintiff .

<p>Error to Circuit Court, Monroe County. .</p> <p>Action by the Bank of Greenville against S. T. Lowry & Co. From a judgment for plaintiff, defendant S. T. Lowry brings error.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>■ Suit by C. L. Wiliams, receiver, etc., against the S. M. Smith Insurance Agency and others. From the decree, P. E. Wagner, receiver, etc., appeals.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill in equity by Edward W. Womack and others against L. C. Agee. Prom a decree for plaintiffs, defendant appeals.</p>

<p>Error to Circuit Court, Mercer County. ,</p> <p>Action by T. Michaelson, an infant, etc., against Samuel 'Turk. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill in equity by the Freudenberger Oil Company against E. A. Simmons and others. From the decree, Fred Gardner appeals.</p>

<p>1. Elections — Primary Elections — Statutory Provisions.</p> <p>A statute which provides that a voter on entering the polling place "shall announce his name”, "shall sign his name and place of residence in a book o’f the party whose ballot he wishes to cast”, and subscribe an oath verifying his party affiliation, etc., before receiving and voting the ballot of the party so named, is mandatory, and prerequisite to the exercise of the elective franchise in a nominating primary, (p. 52).</p> <p>2. Same — Qualifications of Voters — Constitutional Provision.</p> <p>A statute requiring each voter in a primary election to state on oath his party affiliation before he is entitled to east his ballot does not violate the constitutional provision that no "political test oath shall be required as a prerequisite or qualification to vote”, or that with certain negative exceptions all male citizens twenty one years of age or over "shall be entitled to vote at all elections held within the counties in _ which they respectively reside.” (p. 59).</p> <p>3. Same — Primary Elections — Statutory Provision.</p> <p>Such statutory requirement is only a mode of ascertaining the party affiliation of the voter, and thereby to identify him as one entitled to cast the ballot of such party, and is not intended as a test of his right to vote in a primary as distinguished from a general election, (p. 59).</p> <p>4. Same — Primary Elections — Legislative Control.</p> <p>Primary elections are so far matters of public concern that, within legislative discretion, when not restrained by any constitutional inhibition, they are proper subjects of reasonable statutory regulation under the police power of the state. Such regulations ,are vital to the accomplishment of the purpose and scheme of nominating elections, (p. 57).</p> <p>5. Same.</p> <p>Statutes providing for such elections are based on a recognition of political parties as governmental agencies, and are usually intended to maintain party organizations and to secure the in-tergrity of party nominations, (p. 57).</p> <p>t6. Appeal and Error — Jurisdiction—Constitutional Questions.</p> <p>The appellate jurisdiction of this court is not determined by the value of the subject matter of the controversy, in cases “involving the constitutionality of a law”, (p. 53).</p> <p>7. Courts — Appellate Jurisdiction.</p> <p>Where a just determination of a controversy between opposing candidates, arising out of a canvass of primary election returns, appealed to the circuit court under §26a22, eh. 3, Barnes’ Code, virtually depends on the proper interpretation of a law charged to be invalid as in violation of the constitution, this court has jurisdiction to review the proceedings on writ of error, (p. 55).</p>

Original petition by J. E. Cunningham and others for writ of mandamus to L. L. Cokely, Clerk of the Circuit Court of Ritchie County and others. Squike Halstead and J. Howard Holt, -for petitioners, furnish the following authorities: 1. Ch. 26, Acts 1915, does not apply to presidential electors. Acts of 1915, Ch. 26, §1. State v. Brodijan (Nev.) 125 Pac. 699. 2.

Action by Frank Rhodes, an infant, etc., against the J. B. B. Coal Company. Judgment for defendant awarding a new trial after verdict for plaintiff, and plaintiff brings error.

<p>1. Corporations — Officers—Right to Compensation.</p> <p>An officer of a corporation who is also a director, in the absence of a special eontraet, is not entitled, unless under some special circumstances, to recover as upon an implied contract, compensation for services rendered in discharge of his official duties. (p. 86).</p> <p>2. Same.</p> <p>This general rule, however, applicable to directors, does not apply to an officer who is also a stockholder, for as such stockholder he stands in no such trust relationship to the corporation as to preclude his right to compensation for services rendered pursuant to corporate authority, (p. 87).</p> <p>3. Same.</p> <p>But a ministerial officer, as assistant secretary of a corporation, when elected and serving under such circumstances and conditions as to negative any implied contract to pay him for the services pertaining to his office, and such as a stockholder would ordinarily be expected to perform without compensation, will not, in the absence of a special contract, be permitted to recover compensation therefor, as upon an implied contract, (p. 88).</p>

<p>1. Trusts — Resulting Trusts — Creation.</p> <p>As a general rule payment of the purchase money or some part thereof, or assumption of some obligation therefor, at or before the sale and conveyance of the land to the grantee, is a. pre-requisite to the establishment of a resulting trust, and the subsequent payment or the assumption thereof will not, by relation, attach such trust to the original purchase, (p. 91)'.</p> <p>2. Same — Establishment—Sufficiency of Evidence.</p> <p>To establish such resulting trust such prior payment or assumption of payment of the purchase money must be shown with eer-tainty and exactness, (p. 91).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by W. E. Stuart and others against E.- E. Carter. Judgment for plaintiffs, and defendant brings error.</p>

<p>Original petition by G. E. Baker and others for prohibition to Hon. W. H. O ’Brien, as County Judge, and others.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by the First National Bank of Welch against the Clark National Bank. Judgment for defendant, and plaintiff brings error.</p>

<p>Guardian and Ward — Sale by Gnwrdicm — Action to Set Aside— Evidence.</p> <p>A ease involving only familiar principles of law; in wMeli a bill, attacking a guardian’s deed for Ms ward’s land, made pursuant to decrees of court authorizing and confirming the sale and conveyance thereof, entered in proceedings had therefor wMch are regular in all- respects, and charging fraud in the procurement thereof, is not supported by the proof.</p>

<p>Original application by Bertie Petrie for writ of habeas corpus to P. C. Buffington, sheriff, etc.</p>

<p>1. Insurance — Fraternal Insurance — Contract.</p> <p>In a certificate of membership and policy of life insurance issued by a fraternal, beneficial association, where the basis of the contract of insurance between the association and the insured, is the application signed by the insured, the policy issued thereon, and the by-laws of the association, such application, policy, and by-laws will be considered in construing the contract, (p. 123)</p> <p>"2. Same — Fraternal Insurance — Fraud—Policy.</p> <p>Where it is provided in the by-laws of the association that "if any fraudulent or untrue statements were made concerning the bodily health or condition of the insured at the time the application was written, or if any material facts which should have been stated or given wore suppressed or withheld, by the applicant or examining physician, then and in every ease the certificate issued thereon shall be null and void and all obligations of this Association to the insured, his beneficiary or beneficiaries shall cease, ’ ’ and the insured in his application consents and agrees that "any untrue or fraudulent statement made herein or to the medical examiner, or any concealment of facts by me in this application * * * shall forfeit the rights of myself and my beneficiaries to all benefits and privileges therein. * * * Ting application-shall form the basis of the contract between the association and the-insured, ’ ’ and the insured in his application, or in Ms statement to-such medical examiner, makes a statement which constitutes a fraud either absolute or legal, lie will forfeit the policy, (p. 123).</p> <p>3. Same — Fraternal Insurance Policies — Construction.</p> <p>If the answers of the insured to the questions propounded to-Mm in the application, which are made part of the policy, are by the policy waranted to be true, and if any of the answers are-false in fact, the policy is thereby forfeited, though the answers-were made in perfect good faith, (p. 123).</p> <p>4. Same — Fraternal Insurance Policies.</p> <p>Though the policy be construed as not warranting the truth of' the answers of the insured, yet if these answers to specific questions are misrepresentations, the policy will be avoided, whether the court or jury regard the answers as material or not; for the parties by putting and answering such questions have declared that they regard them as material, (p. 130).</p> <p>Í5. Same — Fraternal Insurance — Fraud—“Actual Fraud’’ — “Legal Fraud. ’ ’</p> <p>A false answer to a question, in order to be such a misrepresentation as will forfeit a policy, must be fraudulently false, that is,, in making the answer, the insured must be guilty of actual fraud or legal fraud. By actual fraud is meant an intent to deceive; but legal fraud may exist where there is no intention to deceive, as where the insured in his answer makes a statement which from its-nature the insurer must necessarily regard as made on the personal knowledge of the insured, wMeh statement is false; in such case-the insured is guilty of a legal fraud, wMch will forfeit the policy, though the false statement was made without any intent to deceive but was the result of carelessness or forgetfulness, (p. 130).</p> <p>6. Same — Fraternal Insurance — Applications—Misrepresentation.</p> <p>But if the answer in the application for insurance is such as-must have been made, not on the personal knowledge of the applicant but upon his best judgment and belief, and it be untrue, it will not forfeit the policy issued thereon, if the answer was made in perfect good faith, the applicant believing it to be true, (p. 130).</p> <p>(POEEENBARGER, JUDGE, dissenting).</p>

Action by Robert B. Newman and others against H. L. Tanner and another, and M. L. Simmons applies to .be made a party defendant.' Judgment for plaintiffs, and Simmons brings error.

<p>1. Sales — Operation and Effect — Transfer of Title.</p> <p>Where a chattel sold is not then in a deliverable condition, and’ the order therefor is executed by the manufacture and construction of the article, the buyer acquires no title thereto until it is delivered in its finished state, although he may have paid therefor in advance, (p. 141).</p> <p>2. Same.</p> <p>Where by the agreement anything remains to be done by the-vendor to put the goods in a condition in which the buyer is- bound to accept them, or in a deliverable condition, performance thereof ^ is a condition precedent to the vesting of title, in the absence of circumstances indicating a contrary intention, (p. 143).</p> <p>3. Landlord and Tenant — 1lent—Distress—Property Subject.</p> <p>The several parts of a trade fixture, a soda fountain, although purchased by a tenant under an entire contract dulj recorded reserving title until payment of the purchase price, are not subject to distress and sale for unpaid rent due the lessor until they are constructed and equipped as a soda fountain in readiness for use by the tenant, as agreed by the parties to the contract, although theretofore placed on the leased premises. (p> 143).</p> <p>4. Sales — Operation and Effect — Transfer of Title.</p> <p>Whether a sale of a chattel is complete to pass title, or executory-only, is to be determined from the intention of the parties, as-gathered from the contract, the character of the thing sold, the-use for which it is intended, and the circumstances surrounding the sale. (p. 143).</p> <p>5. Detinue — Judgment—Requisites.</p> <p>Where the proof in detinue is insufficient to support any verdict other than one finding for the plaintiff, wherefore defendant can suffer no prejudice, a judgment for the possession of the property if it can be had and if not for the value ascertained by the jury, conformable with §6, eh. 102, Oode, and identifying it by the description contained in the summons and declaration, is not in such circumstances erroneous merely because the verdict found “for the plaintiff the sum of $523.22,” that amount being within two dollars of the value of the property as proved on the trial, (p. M5).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by James Comisky against tbe Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by Alexander Hart and others against the Kanawha Oil Company and others. From a decree for plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court, Wyoming County.</p> <p>Suit by George W.- Gist and others, partners, against the Virginian Railway Company and others. From a decree for plaintiffs, defendant Vaughan Construction Company appeals.</p>

Action by M. C. Hodge against the Charleston Interurban Railroad Company. A new trial was granted after verdict for plaintiff, and plaintiff brings error.

<p>Appeal from Circuit Court, Roane County.</p> <p>Bill in equity by Rachel Short against John Patton. From a decree for plaintiff, defendant appeals.</p>

Action by P. E. and E. D. Pauley, partners under tbe name of P. E. Pauley & Son, against the Sun Insurance Office. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Bill in equity by S. J. Bailey against H. M. Rifle. From a decree for plaintiff, defendant appeals.</p>

<p>1. Trial — Talcing Case from Jury — Demurrer to Evidence.</p> <p>On demurrer to evidence, if it be conflicting, judgment in favor of the demurree should be given, unless the evidence plainly and decidedly preponderates in favor of the demurrant on some decisive point, (p. 199).</p> <p>2. Appeal and Error — -Review—Question of Fact — Demurrer to Evidence.</p> <p>When the circuit court has found for the plaintiff on a demurrer to evidence by the defendant, this court will not disturb such finding, unless it is against the plain and decided preponderance of the evidence, or is wholly without evidence to support it. (p. 201).</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Bill in equity by George W. Luzadder and another against Lona L. Heath and another. , Prom a decree for defendants, plaintiffs appeal.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by Lucy M. Arnold against E. B. Hawkins. Judgment for defendant, and plaintiff brings error.</p>

<p>Petition by Sidney George and others for mandamus to W. B. Payne and others.</p>

<p>Injunction — Subjects of Belief — Maintenanee of Action.</p> <p>Equity will not enjoin the seller from prosecuting an action of detinue to recover from the buyer a chattel, sold and delivered on condition that the title thereto was to remain in the seller until it was fully paid for, on the ground that he has broken his contract, thereby entitling the' buyer to a right of action for damages.</p> <p>(Miller, Judge, dissenting).</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Bill in equity by the Westinghouse Lamp Company against W. S. Ingram, A. S. Albright, and J. Ami Martin. From the decree the last-named defendant appeals.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill in equity by Ira L. Smith against James L. Rush. Decree for defendant dismissing the case, and plaintiff appeals.</p>

Action by the Elk Milling & Produce Company and others against C. C. Lewis, Jr., as trustee, and others. From decree for the named defendant, plaintiffs appeal.

Suit by Vicie Daniels as.administratrix, and others against Alex Bishop as executor, etc., and others. Prom decree for plaintiffs, defendants appeal.

<p>1. Estoppel — Failure to Assert Title.</p> <p>Upon a party to a suit to enforce liens devolves the duty to im-plead therein any title or equity to which he may deem himself entitled in land sought to he charged; and if he suffers confirmation of a sale made under a decree therein, without presenting his title or" equity for adjudication by proper procedure, and accepts the benefits of the proceeds paid by the purchaser, the latter acquires the land exempt from such legal or equitable claim, (p. 249).</p> <p>2. Same — Equitable Estoppel.</p> <p>One who knows land in which he has an equity not disclosed therein is advertised for sale under a decree entered in a suit to which he is a party, whether brought with or without his authority or knowledge, and does nothing therein to secure an adjudication of the equity claimed, will not, after confirmation of the sale and acceptance of the benefits, be entertained in an' independent proceeding to assert such claim against the purchaser of the land. His inactivity or negligence operates to estop him. (p: 253).</p> <p>3. Same — Equitable Estoppel — What Constitutes.</p> <p>Acceptance of the proceeds of sale, by a party to the suit, operates as an affirmation that the title has vested in the purchaser at a judicial sale; and equity will not thereafter sanction a contrary contention by such party to the detriment or prejudice of the purchaser who paid the consideration on faith in the validity of the decree of sale and confirmation, (p. 253).</p> <p>4. Assignment for Benefit op Creditors — Trustee as “Purchaser for Value” — Recording Acts.</p> <p>Trustees in deeds to secure creditors and the creditors secured are purchasers for value within the provisions of our recording acts, and are entitled to their protection, (p. 253).</p> <p>5. Vendor and Purchaser — Bona Fide Purchaser — Sale.</p> <p>Although accompanied by possession and improvements, an unrecorded written contract of sale of real estate confers no equities superior to the rights of a subsequent purchaser for value without notice whose deed is recorded, or an encumbrancer whose lien is docketed, (p. 253).</p> <p>6. Same — Bona Fide Purchaser — Presumptions.</p> <p>Unless the contrary is charged, and, if denied, proved, it will be assumed that trustees and creditors secured by the trust are purchasers without notice of any pre-existent equities, (p. 253).</p> <p>7. Judgment — Contracts—Scope.</p> <p>Where a court has jurisdiction, its decree operates as an adjudication of the antecedent rights of the parties thereto actually involved upon the pleadings, and also those which are determinable therein and ought to have been presented for adjudication by any party thereto, (p. 253).</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Henry Daniels, as administrator, against tbe Tbacker Fuel Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Witnesses — Impeachment—Evidence—Admissibility.</p> <p>The deposition of a 'witness taken before a coroner may be introduced in evidence on the trial of one accused of murder for the purpose of contradicting the witness on material facts testi- . fled to by him. (p. 262).</p> <p>2. Criminal Law — Trial—Instructions.</p> <p>An instruction to the jury, based on a theory not warranted by the evidence, is erroneous, (p. 263).</p> <p>3. Same — Jury-Question—Instructions.</p> <p>On the trial of one accused of murder, the jury are the judges of the degree of the crime, and an instruction which in the abstract undertakes to define that certain acts of the defendant shown in evidence rendered him prima facie guilty of murder in the second degree without at the same time submitting to the jury the facts and circumstances of the killing, characterizing the degree of the offense, is misleading and erroneous, (p. 263).</p> <p>4. Homicide — Duty to Betreat.</p> <p>One without fault, assaulted by another in a public road, where he has the right to be, is not bound to retreat, but may lawfully stand upon his rights and repel the assault and if necessary to protect his own life or save himself from great bodily harm, may even take the life of his assailant, (p. .263).</p> <p>5. Criminal Law — Homicide—Trial—Instructions.</p> <p>Instruction number 7, for the State, based on the theory of an assault by defendant without .any, or upon very slight provocation, the proof showing great provocation, is bad; and is also bad for omitting to submit to the jury the facts and circumstances of the assault affecting the degree of the crime of which the accused may be found guilty, (p. 263).</p> <p>6. Same — Instructions—Reasonable Doubt.</p> <p>State’s instructions numbers 8 and 9, covering the subject of reasonable doubt, substantially state the law of the case, according to State v. Kellison, 56 W. Va. 690, and State v. Abbott, 64 W. Va. 411, and are not bad upon any principle stated in State v. Taylor, 57 W. Va. 239. (p. 264).</p> <p>7. Same — Homicide—Defenses—Instructions.</p> <p>There being no evidence that defendent voluntarily made himself drunk for the purpose of nerving his animal courage for the accomplishment of a design to kill deceased, an instruction based on that theory, and also on the theory that the blow resulting in the death of decedent was without any or upon very slight provocation, not supported by the evidence, is bad, and should have been rejected, (p. 264).</p> <p>8. Same — Trial—Instructions.</p> <p>Defendant’s instruction number 2, which proposed to tell the jury that though they might believe the evidence established some probability in favor of the guilt of the defendant, rather than of his innocence, such evidence would not amount to proof of guilt however great the probability, if constituting a correct legal proposition, was inapplicable to this case, where the fact of the killing was fully proven, and the guilt or innocence of the defendant depended upon the facts and circumstances attending the homicide, (p. 265).</p> <p>9. Homicide — Offenses—Instructions.</p> <p>Defendant’s instruction number 7, rejected, substantially covered by point S oí the syllabus of State v. Cam, 20 W. Va. 680, should have been given, (p. 265).</p> <p>3 0. Same — Trial—Instructions—Deadly Weapon.</p> <p>The defendant’s instruction number 9, propounded a correct legal proposition, and should have been given to the jury, upon the principles stated in State v. Gravely, 66 W. Va. 375. (p. 266).</p>

<p>1. Mortgages — Deeds of Trust — Consideration.</p> <p>An existing indebtedness in any form, a verbal agreement .to make future advancements in any form, or a verbal agreement to become surety or indorser, in consideration of the indemnity to be afforded by it, constitutes a valid and sufficient basis for a mortgage or deed of trust for a definite and'specific sum, purporting to be an absolute debt, and all three of such purposes may be so included in a single mortgage or deed of trust, (p. 271).</p> <p>2. Same — Deeds of Trust — Validity.</p> <p>Under such an instrument, payments to third persons by the mortgagee, at the request of the mortgagor, are valid advancements and come within the security afforded by it. (p. 272)..</p> <p>.3. Same — Construetion—Debts.</p> <p>Under such an instrument purporting to secure a debt due to, the mortgagees jointly, debts due to them, and advancements, endorsements and suretyship and guaranty undertakings made by them, individually, come within the security, and indemnity afforded. (p. 272).</p> <p>4. Same — Construction—Security.</p> <p>Though broad and flexible, the doctrine of lien security by mortgages and deeds of trust does not confer any right, protection or security upon a stranger to the instrument creating the lien, unless he has acquired it wholly or partially, in some lawful way, or has obtained the equitable right of subrogation to the benefit thereof. (p. 272).</p> <p>5. Same — Construction—IAens.</p> <p>A debt due to a corporation, practically all of the capital stock of which belongs to the beneficiaries of the deed of trust, but which they have not paid nor become personally liable for, is not within the security and protection thereof, (p. 272).</p> <p>6. Same — Construction—Debts.</p> <p>But debts of the grantor for which such beneficiaries have become liable as endorsers or sureties and which have been paid by such corporation, are within the indemnity of the deed of trust, and should be decreed to the corporation, in exoneration of the beneficiaries from liability, and so are unpaid debts of the grantor for which they are so liable and they should be decreed to the parties entitled thereto, (p. 272).</p> <p>7. Same — Foreclosure—Review—Remand.</p> <p>If a decree in a suit to enforce judgment and trust deed liens is found, on appellate review thereof, to be erroneous in its ascertainment and adjustment of the liens on certain property, and it is necessary to bring in new parties, to the end that decrees may be entered in their favor, the entire decree, in so far as it affects such property will be reversed and the cause will lje remanded for amendment as to parties and for a proper decree, (p. 272).</p> <p>8. Fraudulent Conveyances — Limitation of Actions — Running of Statutes — Exceptions.</p> <p>The limitation on suits to have deeds and other instruments declared void in so far as they create preference of creditors, proscribed by sec. 2 of cli. 74 of the Code, is absolute and devoid of exceptions other than those therein provided, (p. 272).</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Actions of ejectment by J. W. Wilson against tbe Buffalo Collieries Company and others. Judgment for defendants, and plaintiff brings error.</p>

Condemnation proceedings by the Baltimore & Ohio Railroad Company against A. J. Bonafield’s heirs and others. Both parties objected to the award of commissioners, and, there being judgment for defendants, plaintiff brings error.

<p>Petition by Herbert W. Sanders for writ of mandamus against Joseph P. Cook and others, constituting the Board of Canvassers.</p>

<p>1. Principal and Agent — Undisclosed Principal — Parties.</p> <p>An undisclosed principal is not a necessary party to a suit against the one with whom a contract is made to rescind the contract and recover the property the subject of the contract or the value thereof, (p. 313).</p> <p>2. Cancellation op Instruments — Nature of Belief.</p> <p>When the subject of such a contract is shares of stock in a corporation, and the purchaser has transferred to his undisclosed principal a part of the shares purchased, but has other shares of the same class in the same corporation he may on cancellation of the contract be decreed to make up the deficiency out of such oilier shares owned by him, or there may be a money decree against him for the value thereof, (p. 314).</p> <p>3. Corporations — Directors—Fiduciary Character.</p> <p>The relationship of a director to stockholder in a corporation is not of that strict fiduciary character as to preclude him as a matter ol law from purchasing the shares of stock of such stockholder without incurring the penalty of having the sale set aside at the election of the stockholder, regardless of the facts and circumstances of the transaction, (p. 314).</p> <p>4. Same — Directors-—Managing Directors.</p> <p>But a director or managing officer of a corporation does sustain such fiduciary relationship to a stockholder of a corporation, as to require of him when proposing to'purchase his stock, and he is called upon for information as to the property and financial condition of the corporation, and its plans and purposes for the future, and for all other facts affecting the value of such stock, and if he offers his opinion thereon, and undertakes to give some information peculiarly within his knowledge as such director or officer, he is bound at his peril, and upon penalty of having the sale rescinded, to give full and correct information and to withhold nothing from such stockholder affecting the value of his shares, (p. 314).</p> <p>5. Contracts — Misrepresentations—Expressions of Opinion.</p> <p>The mere expression of an opinion, though false, respecting the subject matter of a contract, will not generally be regarded as fraudulent, but when there exists a fiduciary relationship between the parties, and it is accompanied by other matters going to establish misrepresentation, imposition, undue influence, undue confidence, mental inability, or surprise, it may amount to fraud justifying a rescission of the contract, (p. 321).</p>

Suit by R. S. Eskridge and others against Wellington Thomas and others, and the Traders’ National Bank of Buck-hannon. Prom a decree for complainants, the last-named defendant appeals.

<p>1. Quieting Title — Right to Maintain Suit- — Vendor.</p> <p>A vendor of land, holding; a vendors lien thereon to secure purchase money, may maintain a bill in equity to perfect in his vendee, the title, conveyed to him and bound by the lien, if, when conveyed, it was merely equitable but afforded ground for calling in the legal title; and to quiet the title conveyed, as to invalid claims thereto set up by predecessors in title_ of such lienor, if, when conveyed, it was legal and complete, but dependent upon ambiguous muniments of title requiring judicial interpretation. In either ease, invalid instruments impeding acquisition of the legal title or easting clouds thereon, may be cancelled and annulled. (p. 333).</p> <p>2. Same — Bower of Court — Jurisdiction.</p> <p>But equity jurisdiction for such purpose does not extend to defenses founded upon claims of title to the land, on the part of such predecessors, by adverse possession thereof, and the court cannot, in such a suit, adjudge such claims to be either valid or invalid. Its jurisdiction and powers in the cause are limited to controversies respecting the title conveyed and clouds on it. (p. 333).</p> <p>3. Husband and Wife — Infants—Estoppel.</p> <p>Assuming a decree ambiguous as to whether it is one of partition or. one of sale, to be a decree of the former class and to be void for want of pleadings in partition and to have made assignments of lots variant from those agreed upon by the parties, in writing, out of court, married women and infants accepting the assignments made by the decree and treating the lots so assigned as theirs and selling and disposing of them, are estopped from setting up title to the remaining portions of the estate, since the partition so made involves no loss of title in any substantial sense, (p. 333).</p> <p>4. Same — Estoppel of Married Women.</p> <p>But total exclusion of one of the coparceners, a married woman, from the partition, on the theory of a sale of her interest to another party and assignment of her lot to him, in the absence of any pleadings on which to found such a decree, although acquiesced in by her, does not estop her from asserting title to the lot assigned to her by the partition agreement, (p. 333).</p> <p>5. Equity — Decree—Ambiguities—Fleadings.</p> <p>An ambiguity in a decree entered in a suit brought to subject the land of a decedent to payment of his debts, as to whether‘it is a decree of partition among the heirs or a decree of sale of the land in parcels to some of the heirs and strangers to the title, is determinable by reference to the pleadings and other papers filed in the cause, (p. 333).</p> <p>6. Executors and Administrators — Decrees — Ambiguities — Construction.</p> <p>A decree in such a suit, reciting a voluntary division of the land among the heirs and assumption of proportionate amounts of the debts and dispositions of some of the “interests” by some of the heirs, and exchanges of the “interests” assigned, by others; ascertaining thé- amount of indebtedness remaining unpaid; decreeing portions of the same personally against the parties willing to pay them and take certain “interests” or lots of the land; and ordering conveyances of such lots to them, on payment of the amounts decreed against them; the only pleading in the cause being the bill praying sale of the land to satisfy and pay the debts, is a decree of sale, and the conveyances executed under it pass the legal title to the portions so conveyed, to the extent of the interests of all of the heirs that were parties to the suit, (p. 342).</p> <p>7. Same — Decrees—Collateral Attack — Validity.</p> <p>Omission from such a suit, of one or more of the heirs, is ground of error, as to those who were made parties, on which they could have had it reversed by appellate procedure, but it is valid and binding on them, though void as to the omitted party, after the time allowed for appellate review has passed, without - procedure to avoid it. (p. 342).</p> <p>8. Equity — Decree—Misnomers of Parties.</p> <p>Mere misnomers of a party defendent, in the summons and bill, correetible by matter apparent on the face of the papers, do not prevent jurisdiction of the court over the person of such party from attaching, nor invalidate the decree entered against him on the bill taken for confessed, (p. 342).</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Suit by Sylvina Wolford against B. R. Bias, trustee and others. From a decree for defendants, complainant appeals.</p>

<p>1. Homicide — Evidence—Admissibility.</p> <p>In a trial for murder, where it is shown that had feeling had existed between the families of the accused and the deceased for some time, and that their wives engaged in a fight on the evening preceding the homicide, which was the cause of the fatal encounter between accused and deceased, testimony by the wife of deceased tending to show that she and the wife of the accused had unpleasant words nearly every time they met, and that, if they were not in speaking distance, the wife of the accused would make offensive signs at her, constitute a link in the chain of circumstances leading up to the fatal affray, and is admissible, (p. 360).</p> <p>2. Same — Evidence—Admissibility—Habits of Accused.</p> <p>Although the State's evidence tends to prove that the accused had sworn profanely at deceased and his wife, immediately before the fatal affray began, testimony of a witness for accused, concerning his habits respecting the use of profanity, is properly rejected. A man may sometimes swear profanely, although it is not his habit to do so. (p. 361).</p> <p>3. Witnesses — Credibility—Evidence.</p> <p>If, upon his examination in chief, the fact is made to appear that a witness for the accused is related to him, the offer to prove by such witness that he and the accused had not been on speaking terms for sometime previous to the trial, is properly rejected, his credibility not otherwise being called in question. It is not proper to bolster up a witness before his credibility has been attacked, (p. 362).</p> <p>4. Criminal Law — Trials—Confrontation of Witnesses.</p> <p>On his examination in chief, a witness for the accused was asked what had been the state of feeling between himself and the accused, and the court sustained an objection to the question, and refused to permit the witness to answer it, and, in order to show what his answer would have been, if he had been permitted to answer, for the purpose of making the rejected evidence a part . of the record, for consideration of this court on writ of error, the judge, the opposing counsel and the witness retired to an anteroom, out of the presence and hearing of the jury and the accused, and the questions were then permitted to be asked and answered and were made a part of the record. Held: The evidence not being admissible, this was not error. Having ruled on the motion and rejected the evidence, when it was first offered, in the presence of the accused and the jury, the hearing of the evidence by the judge, out of the presence of the accused and the jury, was not a matter’ which affected, in any manner, the trial of the accused in the court below, (p. 362).</p> <p>5. Homicide — Trial—Instruction—‘ ‘ Assault. ’ ’</p> <p>Where the State’s theory, supported by its evidence, is, that the accused went to the home of the deceased, armed with a shotgun, and made use' of violent language toward deceased and his wife and called to them to come out of their “dirty den”, and.also pointed his gun toward the house, before deceased came out, an instruction defining an assault as “a verbal threat of violence against another accompanied with the present capacity to execute such a threat, or is a movement which virtually implies a threat to strike or otherwise do violence to the person of another,” and submitting to the jury the question whether or not the accused made such assault and thereby provoked the combat which resulted in the homicide, and telling them they should not acquit the ae- ' cused on the plea of self defense, unless they further believed from a preponderance of the evidence, that, before the fatal shot was fired, the accused declined further combat and retreated as far as he could with safety, and killed deceased in order to preserve his own life, or the life of his wife, who was with him at the time, or to protect her or himself from great bodily harm, was properly given, (p. 363).</p> <p>6. Same — Evidence—Admissibility.</p> <p>Where the fact is clearly proven, and not denied, that deceased 'was killed with shot fired from a rapid firing shotgun, fired by the accused, it is not reversible error to admit evidence tending to show the number of shot usually contained in a shell of the kind and caliber used'by defendant at the time of the shooting, (p. 365).</p>

<p>1. Master and Servant — Injury to Servant — Care.</p> <p>A coal company which, knowingly, permits its employes habitually to ride on its coal cars to and from their place of work in the mine, is bound to use reasonable care to maintain its tracks and cars in a reasonably safe condition, considering the purpose for which they were designed, (p. 367).</p> <p>2. Same.</p> <p>A rule warning all persons, who ride upon any incline, car, engine or motor, that they do so at their own risk, does not absolve the company from liability, if it. makes no reasonable effort to prevent its employes from so riding, (p. 367).</p> <p>3. Same — Injuries to Servant — Relation.</p> <p>In such ease the relation of master and servant continues to exist while the employes are riding to and from their work, (p. 367).</p> <p>4. Same — Injwries to Serwmt — Liability.</p> <p>If the proximate cause of injury to a servant is the combined negligence of the master and a fellow servant, the master is liable, (p. 368).</p> <p>5. Same.</p> <p>When the evidence proves that plaintiff was injured by the wrecking of a coal train, on which he was lawfully riding from the mine to the tipple, and that the wreck was caused, in part, by the rapid speed of the motor, and in part, by the unsafe condition of the road, the master is liable, (p. 368).</p>

<p>1. Master and Servant — Injuries to Servant — Relationship.</p> <p>The general rule requiring the actual existence of the relation of master and servant, to sustain an action for personal injury received by one claiming to be the servant, due to the negligence of the alleged master, is not without its exceptions, and, under certain circumstances, there is liability, as if the relation existed, although in fact it does not. (p. 376).</p> <p>2. Same.</p> <p>A corporation, chartered for the purpose of mining coal and producing salt and its bi-products, which engages in both occupations for a number of years, and then turns over to its president and general manager the business of mining coal on his own account, who does so in a fictitious name, but continues all the while president and general manager of the corporation, employing men to work in the mine, without disclosing whether for himself or his company, and paying them at the same place and in the same, manner in which he pays employes in the salt works, thereby inducing them to believe they are employed by him as manager of the corporation, is liable to a miner for an injury occasioned by the negligence of such individual operator, as if the-relation of master and servant actually existed between it and the injured employe, (p. 376).</p> <p>3. Same — Injwies to Servant — Vice Principal.</p> <p>A mine foreman who, in addition to his statutory duties, and by authority of the operator, employs and discharges miners and has general charge of the mining operations, is, pro tanto, the agent of the operator, and renders it liable for his negligence in giving an improper order to a subordinate employe to throw a certain switch, thereby causing a train of empty coal ears, hauled into the mine and disconnected from the motor, while still in motion, to be diverted from the main entry onto a side entry and to collide with and injure a miner who, ignorant of the danger and in obedience to previous directions of such mine foreman, is shoving a loaded car from his place of work onto the siding, (p. 380).</p> <p>4. Evidence — Opinion Evidence — Competency.</p> <p>In an action to recover damages for a personal injury the plaintiff, whose injury is internal, showing no visible evidences of permanency, is incompetent to give his opinion that the injury is permanent. Only an expert is competent to express an opinion in such case. (p. 381).</p> <p>5. Same — Admissions—Writings.</p> <p>Where, in an action for personal injury sustained by plaintiff while working in a eoal mine, defendant company denies it was operating the mine at the time of the injury, evidence is admissible to prove that the personal property, used in operating the mine, was listed for assessment and taxation in the name of the defendant, for the year within which plaintiff was injured and for some yeare prior and subsequent thereto, by its officer and agent, authorized, to make return of its property to the assessor, as a circumstance tending to prove that defendant was then operating the mine. (p. 383).</p> <p>6. Negligence — Evidence—Admissibility.</p> <p>Where the evidence is clear and uncontradicted, respecting the particular negligence which caused the injury, testimony tending to prove, negligence in other respects, which in nowise contributed to the cause of injury, is irrelevant, immaterial and should not be admitted, (p. 383).</p> <p>7. Evidence — Relevancy—Continuance.</p> <p>Testimony respecting previous continuances of the cause is irrelevant and immaterial to the issue to be tried by the jury. (p. 384).</p> <p>8. Trial — Reception of Evidence — Documentary Evidence.</p> <p>A witness should not be permitted to read a paper to the jury as evidence, unless the paper itself has been admitted, (p. 384).</p> <p>9. Same — Instructions—Propriety.</p> <p>When the uncontradieted evidence shows that only one act of negligence was the proximate cause of the injury, an instruction submitting to the jury other alleged acts of negligence, not in any way contributing thereto, should be refused, (p. 384).</p> <p>10. Master and Servant — Injuries to ¡Servant — Contributory Negligence.</p> <p>An inferior servant, injured while obeying the order of his superior who has control of the work, is not chargeable with contributory negligence, unless the danger incurred by such obedience is so great and imminent that a prudent person would not assume the risk. (p. 384).</p> <p>11. Trial — Instructions—Jury Question.</p> <p>Where the liability of defendant company depends upon whether the mine foreman, whose negligence is shown to have been the proximate cause of the injury, was the agent of the master respecting such negligence, which, on account of conflicting testimony, is a mixed question of law and fact, an instruction, which would have told the jury such act was the negligence of a fellow servant, was properly refused, (p. 384).</p> <p>12. Same — Special Interrogatories — Submission.</p> <p>Special interrogatories propounding to the jury certain questions which, if answered, could not control a general verdict, are properly refused, (p. 384).</p>

<p>Error to Circuit Court, RaleigR County.</p> <p>Action by the William James Sons Company against L. H. Hutchinson and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Petition by William J. Snee against Edward E. White for writ of mandamus.</p>

<p>Petitiou by M. K. Duty for writ of prohibition against S. M. Thompson and others.</p>

<p>1. Constitutional Law — Division of Powers — Powers of Judiciary.</p> <p>Courts have no power to interfere with the proceedings of the legislature, or to regulate the official conduct of the clerks of the respective branches thereof, after its adjournment, in completing their journals, so long as they are obeying its rules and commands, (p. 422).</p> <p>2. Jurisdiction op Courts.</p> <p>Jurisdiction to prevent the. clerks of the respective houses of the legislature, after its adjournment, from falsifying the journals suggested, but not decided, (p. 423).</p> <p>3. Mandamus — Clerics of Legislature — Powers.</p> <p>This court will not undertake by mandamus to compel the clerks of the respective houses of the legislature, in making up the journals of those bodies, after adjournment of the legislature, to expunge from the report of one of their joint conference committees on disagreeing votes in the two houses, on the passage of a certain bill, matter alleged to have been improperly and fraudulently incorporated therein, after the report had been adopted by the two houses, when it appears such matter was agreed on by said committee, but was inadvertently omitted from its report, by its clerk, and was afterwards inserted therein by the joint committee on enrolled bills, pursuant to a joint rule of the two houses, and the bill, as thus corrected, was called to the attention of the respective houses which adjourned sine die, without further action with reference thereto. (p.'423).</p> <p>(Bitz, Judse, absent).</p>

<p>Original petition by James S. Frazier for writ of mandamus against tbe Board of Canvassers and others.</p>

<p>Original petition by E. B. Norton for writ of mandamus against the County Court of Kanawha County.</p>

<p>Mines and Minerals — Miming Leases — Lights of Lessor.</p> <p>Where the several owners of adjoining tracts of land unite in a single lease thereof to a third party for oil and gas purposes, in which such lands are described as a single tract, and provision is made for the delivery of one-eighth of the oil produced to the lessors, all of the royalty oil so delivered must be divided among the lessors in the proportion that the area of the tract of land owned by each of them bears to the total area of the tract covered by the lease, regardless of the ownership of the tract or tracts of land upon which the well or wells may be drilled from which such oil is produced. (Lynch, President, absent).</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by Sylvester M. Shuman against T. A. Shuman. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Judges — Disqualification.</p> <p>A judge of a court in this state is not disqualified to preside in a cause pending in his court, either by section 9, chapter 112, Code 1913, as amended by chapter 71, Acts 1915, or by the terms or spirit of section 11, of said chapter, because one or more of the parties to such cause is counsel for such judge in another cause pending in his court, or in some other court, (p. 456).</p> <p>2. Appeal and Error — Harmless Error — Dissolution of Injunction.</p> <p>The continuance of a motion to dissolve an injunction, on the motion of the party enjoined, the injunction remaining in force, is addressed to the sound discretion of the eourt, and mil not amount to reversible error unless plainly prejudicial to the interests of some party affected thereby, (p. 457).</p> <p>3. Courts — Jurisdiction—Situs of Seal- Property — rConveyances.</p> <p>The courts of one state may by decree compel persons subject to its jurisdiction to make personal conveyances of land in another state, and to do any other act which without reference to the decree would affect the land according to the lex rei sitae. In such eases the conveyance and not the decree passes the title., (p. 457).</p> <p>4. Abatement and Revival — Another Action Pending — Issues.</p> <p>The pendency of a suit for partition in the courts of the state where land is situated, and a decree of /partition therein, reversed on appeal by an appellate court, and remanded for further proceedings, will not estop or preclude the grantor in one of the deeds involved in said partition suit from maintaining a suit in the courts of another state where the deed was made and where the parties thereto reside, to obtain a decree requiring a reconveyance of the land to him upon the ground of fraud and deceit practiced by the grantee in obtaining such deed, unless this question was fully presented by pleadings and proof, and actually adjudicated in such partition suit. (p. 458).</p> <p>, 5. Attorney and Client — Compensation.</p> <p>Where, after his employment, an attorney at law procures from Ixis client a deed or contract for land or personal property, the subject of his employment, or for gr¿ater interests therein than his original contract called for, whether fraudulently or otherwise, he may be compelled at the election of his client to reeonvey the real estate, or surrender for cancellation the contract for the personal property, (p. 461).</p>

<p>1. Abatement and Revival — Survival of Causes — Action.</p> <p>Causes of action that survive, and may be prosecuted by or against the personal representative of a decedent, primarily and generally are such as affect property or property rights, the wrong to the person being merely incidental, (p. 466).</p> <p>2: Limitation op Actions — Limning of Statute — Alteration of Street Grade.</p> <p>Rive years is the limitation period prescribed for actions to recover damages to real estate occasioned by the alteration of a street grade or by an improvement in the street óf a municipality, (p. 465).</p> <p>3. Municipal Corporations' — Change of Grade of Street — Liability.</p> <p>A municipal corporation is chargeable with the consequential damage to real estate resulting from the construction of an approach to a public bridge in a street under its control, although the structure extends across the corporate boundary and was built under the authority of the county court, the town and county jointly contributing to the cost of the improvement, the town alone changing the grade of the street and erecting one of the approaches to the bridge, (p. 465).</p> <p>4. Same — Damages—Evidence.</p> <p>In an action to recover damages for injuries to real estate, due to public improvement, it is error to admit testimony to show an unsanitary condition produced by the accumulation of water, or injury to a private sewer, caused by the improvement, where the declaration fails to aver such injuries as elements of the cause of action, (p. 467).</p> <p>5. Trial — Province of Court — Opinion of Facts.</p> <p>A well recognized rule of practice, general in its application, based on the theory of an absolute impartiality, requires a judge to refrain from indicating, in terms or by conduct, an opinion upon the facts detailed to a jury upon the trial of an action, or upon defects of construction in a public improvement when viewed by the jury at the instance of the litigants, (p. 467).</p>

<p>1. Evidence — Judicial Notice — Laics of Foreign State — Laws of United States.</p> <p>Judicial notice will be taken of the laws of a foreign state, or of the United States, by the courts of this state, by virtue of the provisions of section 4, chapter 13, Barnes’ Code. (p. 473).</p> <p>2. Affidavit — Evidence—Authentication of Lien Statement — Authority of Notary Public of Another State — Judicial Notice.</p> <p>The certificate of the clerk of a court of record of the State of Tennessee, appended to an affidavit which verifies a mechanic’s lien, to the effect that the officer taking said affidavit and administering said oath was at said time a notary public, duly commissioned and qualified as such, and that his signature thereto is genuine, is a sufficient authentication of such affidavit, it being judicially known that a notary public in the State of Tennessee is authorized to administer an oath. (p. 472).</p> <p>3. Mechanics’ Liens — Filing Amendment.</p> <p>As a general rule a mechanic’s lien filed under the laws of this state eannot_ be amended after the time limit for filing such a mechanic’s lien has expired, (p. 474).</p>

<p>1. Telegraphs and Telephone — Removal of Poles — Notice—Statute.</p> <p>It is the duty of a telephone company, occupying a public highway under a franchise from the county court, to remove and reset its poles and lines at its own expense, when notified to do so, if they are so situated as to interfere materially with the work, lawfully prosecuted, of permanently improving such highway. The franchise of such telephone company is subordinate to the rights of the traveling public in the highway, (p. 479).</p> <p>2. Same — Removal of Poles — Mandamus.</p> <p>Although the county court is authorized by statute to remove and reset such telephone poles, and to charge the expense thereof to the owner, it is not obliged to do so, and may demand a writ of mandamus to compel their removal by the owner, (p. 480).</p> <p>3. Same — Poles—Obstruction—Statute.</p> <p>Telephone poles, standing on the right of way in such proximity to the traveled road as to materially interfere with the work of permanently improving it, constitute an obstruction to the use of the public road by the traveling public, within the meaning of Sec. 56a (77), Ch. 43, Barnes’ Code. (p. 481).</p> <p>4. Judgment — Bar—Removal of Telegraph Poles — Mandamus— Pending Injunction.</p> <p>The pendency of a suit, brought by such telephone company simply to enjoin the county court and its contractors, engaged in mating permanent highway improvement, from wilfully and wantonly destroying its poles and wires, and the granting of a temporary injunction order, restraining such wilful trespass, is no impediment to the right of the county court to apply for a writ of mandamus to compel such telephone company to remove its poles and lines, (p. 481).</p>

<p>Appeal from Circuit Court, Wood County. -</p> <p>Suit by Olin Y. Neal against F. S. Wilson and others. From decree for plaintiff, defendants appeal.</p>

Suit by George W. Campbell and others against the Board of Education of Triadelphia District, Ohio County, and others. Decree for plaintiffs, and defendants appeal and move to reverse the decree.

<p>1. Covenants — Evidence—Contract to Provide Home and Care.</p> <p>Where a substantial part of the consideration for the grant of land, as stipulated in the deed, is a covenant on the part of the grantee, that ho will provide and furnish a home and care for the grantor during the balance of his natural life, no place being specified, the legal effect of such covenant is that such home and care shall be provided and furnished wherever the grantor may reasonably elect to receive the same, without occasioning unnecessary expense to the grantee; and as a general rule evidence of an alleged prior or cotemporanepus oral agreement that such home and care was to be at the home of the grantee on the land conveyed, or elsewhere, is inadmissible, (p. 496).</p> <p>2. Same — Agreement to Provide Home and Care — Election as to Place.</p> <p>The fact that for a time after such .grant the grantor remained at the home of the grantee on the land conveyed, and was cared for there, will not constitute an irrevocable election to ever afterward accept performance of such covenant at that place, (p. 498).</p> <p>3. Agreement to Provide Home and Care — Instructions.</p> <p>Instructions to the jury in the case at bar in conflict with the foregoing principles should have been rejected, and the jury properly instructed in conformity thereto. . (p. 498).</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suits by P. D. Morris, administrator, against Anita West-erman, and against W. P. Simmons and others, and by D. V. Lemon, trustee, etc., against the First National Bank of New Martinsville and others, and by W. ' P. Simmons, surviving, partner, etc., against P. D. Morris, administrator, and others, and C. S. Farmer, administrator de bonis non of Beulah Westerman, deceased, and as administrator de bonis non with the will annexed of W. S. Wiley, deceased. Decree for complainant P. D. Morris, administrator, and C. S. Parmer, administrator, etc., appeals.</p>

<p>1. Commerce — License Tax — Brokers—Constitutional Provisions— “Interstate Commerce.”</p> <p>In so far as the business of brokers holding a membership in a board of trade, stock exchange or other like institution in a state other than this and maintaining a branch office or place of business in this state, consists of the purchase of shares of the capital stock of corporations, in such board of trade, stock exchange or like institution, actual receipt of the purchased certificates representing such shares, for and on account of their patrons, and resale of such shares in such market, without actual delivery of the certificates to their principals or patrons, upon orders of purchase and sale given and received at such office or place of business, it is not interstate in character, within the meaning of the constitutional provision inhibiting state regulation of interstate commerce, and the agency is subject to regulation and taxation by this state, in respect to their business, even though other.portions thereof may be interstate in the sense of said provision. (p. 520).</p> <p>2. Appeal and Error — Interstate Commerce — License Tax.</p> <p>Upon a proceeding in resistance of a state license tax upon a business or occupation, a portion of which is not interstate in such sense, it is not necessary to determine whether other portions thereof are interstate, in order to maintain the state’s right of taxation, (p. 523).</p> <p>3. Brokers — License Tax — Statute.</p> <p>A stock brokerage business broad enough in its scope to include, in every instance, an actual purchase or sale and delivery of the certificates representing the shares, to the brokers, in the former case, and .by them., in the latter, is taxable under clause e of sec. 2, ch. 32, Code, and not under clause f of said section, even though the transactions are based upon marginal' contracts under which deliveries may or may not be made by the brokers to their principals or patrons, and, in many instances, are not so made. (p. 523).</p>

<p>1. Master and Servant — Employment Contract — Termination.</p> <p>A contract for work and labor which provides for a monthly salary to be paid by one party to the other and does not specify any term of employment, may be terminated at the end of any month by either of the parties thereto, (p. 529).</p> <p>2. Fraud, Statute of — Employment Contract — Term.</p> <p>A contract of employment for one year, the term of such employment to begin at. a date in the future, is such a contract as cannot be performed within a year, and to be binding under the provisions of section 1 of chapter 98 of the Code must be evidenced by a writing signed by the party to be charged thereby, or-his agent, (p. 529).</p> <p>3. Same — Justices of the Peace — Pleading.</p> <p>In an action brought before a justice of the peace the statute of frauds need not be specially pleaded, but may be proven in defense of such suit under an answer denying the plaintiff’s right to recover, (p. 531).</p> <p>4. Work and Labor — Action for Compensation — Burden of Proof.</p> <p>In order to a recovery for work .and labor performed upon a quantum meruit the party seeking such recovery must show that such work and labor was performed under such circumstances as will imply a contract to pay for the same, and must further show the extent and amount of such work and labor performed by him, and the reasonable value thereof, (p. 531).</p>

<p>1. Easements — Grant—“Basement Appurtenant.”</p> <p>If an easement granted be in its nature an appropriate and use-, ful adjunct of the dominant estate conveyed, having in view the intention of the grantee as to the use of such estate, and there is nothing to show that the parties intended it as , a mere personal right, it will he held to he an easement appurtenant to the dominant estate, (p. 537).</p> <p>2. Mines and Minerals — Bight of Way — Construction.</p> <p>Where a deed conveys the minerals in a tract of land with the privilege of using the surface for rights of way for tramroads, or other, means of transportation necessary for the removal of such minerals, and the minerals from any other lands, it will he held that the parties intended that the minerals so conveyed should he mined or produced in connection with the minerals from other lands to he acquired hy the grantee, and the easement created by the grant of the rights of way will he held to he appurtenant to the grant of the minerals contained in the land, it being reasonably necessary that the said minerals should be mined in com nection with the minerals from other lands.. The grant of such an easement will confer upon the grantee the right to construct a tramroad across the surface of the land containing the minerals granted, for the purpose of hauling timber across the same to be manufactured into lumber, to be used for the purpose of mining the minerals granted, as well as the minerals being produced by the grantee from other lands in connection with the minerals so granted, (p. 535).</p> <p>3. Same — Surface Bights — Timber.</p> <p>The principal business of such grantor being the mining of coal, in case there is more timber upon the land being operated by him than is necessary for such coal mining purposes, such grantee will not be prohibited from hauling all of such timber across the land over which he has such easement upon such tramroads, and may sell the excess above that actually needed for mining purposes, this being merely incidental ‘to the main business of producing the minerals from such lands, (p. 540).</p> <p>4. CONTRACTS — G-eneral Words — Construction.</p> <p>Where general words are used in a contract after specific terms, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified, (p. 539).</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit in chancery by H. C. Jones against James Blankenship, Jr., and others, to enforce judgment lien against the lands of the defendant James Blankenship, Jr. Decree for defendant United States Coal & Oil Company, and plaintiff appeals.</p>

Action by I. L. Adams against L. F. Adams. From an order setting aside verdict for plaintiff, and granting 'defendant a new trial, plaintiff brings error.

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit by L. W. Gilkison against Eli Gore and others. Decree for defendant Eli Góre, and plaintiff appeals.</p>

<p>1. Pleading — General Demurrer — Parties.</p> <p>A general demurrer by one of two defendants, to a count of a declaration, disclosing lack of light of action against him, on its face, is properly overruled, (p. 556).</p> <p>2. Parties — Misjoinder of Defendants — Pleading.</p> <p>Misjoinder of codefendants in an action at law, predicated on non-liability, not mere personal privilege, is matter of defense to be given in evidence under the general issue and cannot be pleaded either in abatement or in bar of the action, (p. 558).</p> <p>3. Husband and Wide — Nonsupport—Action on Bond• — Plea of Duress.</p> <p>A plea of duress founded upon an arrest in a lawful proceeding is not sufficient, if it does not aver that the proceeding was insti- * tuted without just cause, or that, being founded upon sufficient cause, it was prosecuted for an ulterior or improper purpose, (p. 559).</p> <p>4. Same — Principal and Surety — Bond—Validity.</p> <p>A bond executed to a wife by her husband and another party as his surety, is, in legal contemplation, void as between her and her husband, and she can maintain no action thereon against him, in a legal forum; but, if such bond is not wholly invalidated by fraud, illegality of consideration, conflict -with public policy or a vice of like character, it is nevertheless binding upon the surety, (p. 557).</p> <p>5. Same — Penal Bond — Validity.</p> <p>A penal bond executed by a husband to his wife, by way of compromise and settlement of difficulties between them, binding him by its condition to resume and maintain his marital and family relations with her and their children and provide, them support and maintenance, is founded upon a good and sufficient consideration, and is not forbidden by any positive law or public policy, (p. 560).</p> <p>6. Same — Bond—Surety—Liability.</p> <p>The surety in such a bond is liable thereon for a breach of its condition, in an action at law brought by the wife. (p. 557).</p> <p>7. Same — Bond—Liability of Surety — Damages.</p> <p>The damages recoverable in such action may include compensation for loss of the husband’s society, extra labor imposed upon the wife and mental suffering arising from disgrace and humiliation. (p. 560).■ •</p> <p>8. Appbac, and Eekor — Reversal as to Coparty.</p> <p>If, in such case, a verdict is found and a judgment rendered against both the husband and the surety, the judgment will be reversed and the verdict set aside as to the former, and the judgment affirmed as to the latter, (p. 562).</p>

Bill by John M. Wirgman and others against the Provident Life & Trust Company and another. Decree for defendants dismissing the bill, and plaintiffs appeal.

<p>Appeal from Circuit Court, Wood County.</p> <p>Suit by D. B. Marlow against J. T. Ringer and others. From decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by J. N. J. Parker against the North American Accident Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit to enforce mechanics ’ liens by Kane & Keyser Hardware Company against W. H. Cobb and others. Decree for plaintiff, and defendant Cobb appeals.</p>

<p>1. Parties — Pleading—Declaration—Discretion of Party — Amendment.</p> <p>A declaration and summons describing a defendant corporation, by the name of "Western Maryland Railroad Company,” whereas its true name is "The Western Maryland Railway Company,” may be amended on motion by inserting therein the correct, name, and such amendment does not introduce a new defendant or a new cause of action, (p. 593).</p> <p>2. New Triad — Excessive Damages — Setting Aside Verdict.</p> <p>To warrant the setting aside of a verdict awarding damages for a personal injury, solely on the ground of excessiveness, the amount must be so large as to convince the court that the jury were actuated by improper motives, (p. 595).</p>

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

<p>Law or the Case — Second Appeal.</p> <p>The judgment below is affirmed upon the principles announced in the opinion delivered herein on a former hearing, 75 W. Va. 533, and in the eases of McGlary v. Knight, 73 W. Va. 385, and Bohinson v. City fy Elm Grove B. B. Co., 71 W. Va. 423.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by C. L. Armentrout and another against L. D. Lambert. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. Insane Persons — Insane Wife — Liability for Maintenance.</p> <p>A person taking upon himself, in the manner prescribed by sec. 10, ch. 58 of the Code of 1913, the custody and care of a wife adjudged to be insane and committed to a public hospital for the insane, upon the complaint if her husband, under circumstances indicative of motive and purpose on his part, to be relieved of her company and presence, may recover from him the reasonable cost of her board and medicines furnished her and the reasonable value of necessary care, nursing and attention bestowed upon her. (p. 605). _ .</p> <p>2. Same — Insane Wife — -Maintenance—Liability.</p> <p>In such ease, proof of the husband’s unfaithfulness to his wife, devotion to another woman, prosecution of the proceeding for her committal, lack of effort to take care of her at home and indifference to her while in private custody, after adjudication of her insanity, justify the court in its direction of a verdict for the plaintiff, in an action to recover from the husband such expenses and the value of such, services, (p. 607).</p>

<p>1. Principal and Agent — Personal Liability of Agent.</p> <p>„ An agent of a disclosed and known principal, conducting a checking account in a bank, in Ms own' name, creating an overdraft therein and executing Ms own checks on another bank to make the overdraft good, makes himself individually liable to the bank, (p. 614).</p> <p>2. Novation — Personal Liability of Agent — Election to Hold Principal.</p> <p>In such case, the doctrine of discharge of the agent by election to hold the principal for the debt, does not apply; and subsequent acceptance by the bank of notes of the principal for the debt and collateral security therefor, does not release the agent, (p. 614).</p> <p>3. Same.</p> <p>A contract between the principal and the bank, to wMeh the agent is not a party, reciting acceptance of the notes and securities, the agency and the indebtedness of the principal, but not releasing the agent nor, .in terms or by implication, making the notes payment of the debt, does not effect a novation of the debt, (p. 614).</p> <p>4. Principad and Surety — Relation of Parties — Individual Liability.</p> <p>The contracts being separate in such ease, there is no surety-sMp relation between the principal and agent, imposing duty upon the bank in its transactions with them. (p. 614).</p> <p>5. Banks and Banking — Depositors—Debts of.</p> <p>A bank to wMch a depositor owes a matured debt may appropriate a general deposit of the -debtor to payment of the debt; but it has no right so to appropriate or apply a deposit made by the debtor for a known special purpose, or under a special agreement that it may be checked out or withdrawn for specific purposes, (p. 614).</p> <p>6. Garnishment — Property Subject to Special Deposits.</p> <p>A special deposit in a bank is subject to garnishment, (p. 614).</p> <p>7. Set-Oep and Counterclaim — Eight of Set-Off — Relinquishment.</p> <p>The statutory right of set-off may be waived or relinquished by an agreement founded upon a valuable consideration, and such an agreement may be implied as well as expressed, (p. 616).</p> <p>8. Banks and Banking — Special Deposits — Agreement.</p> <p>By its acceptance of a special deposit, a bank impliedly binds itself not to set-off against it, a debt due it from the depositor. (p. 616).</p> <p>9. Garnishment — Proceedings—Pleading.</p> <p>In a proceeding by suggestion, no fonnal’pleadings are required. The broad issue is whether the garnishee owes the judgment debtor anything or has in his possession any property belonging to him. (p. 616).-</p>

<p>Error to Circuit Court, Logan County.</p> <p>Ejectment by the Hector- Coal Land Company against H.</p> <p>C. Jones and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Appeal and Error — Perfecting of Appeal — Time.</p> <p>Under the provisions of See. 3, chapter 135 of the Code a petition for an appeal or writ of error must be presented within one year from the date of the judgment or. decree complained of; and under the provisions of see. 17 of said chapter the record of the proceedings in the court below upon which the judgment or decree complained of was entered must be filed in the office of the clerk of this court within one year and two months from the entry of such judgment or decree; and under the provisions of sec. 5 of said chapter, the party complaining may file his petition for an appeal or writ of error in the office of the clerk of the lower court, who shall thereupon transmit such petition with the original record to the clerk of this court for consideration by this court- upon such original record; held that where a party complaining of a judgment or decree hies his petition with the clerk of the court below within one year from the date of the entry of such judgment or decree and procures said petition together with the original record to be transmitted to the clerk of this court and filed in his office within one year from such date, an appeal allowed thereon within one year and two months from the entry of the judgment or decree complained of will not be dismissed because a transcript of the record is not filed within such time. (p. 629).</p> <p>2. Fixtures — What Constitutes.'</p> <p>Machinery and like appliances used in connection with real estate become irremovable fixtures when the following conditions concur: first, such property must in some way be attached to the real estate, second, it must be adapted to the use being made of that part of the real estate to which it is attached; and third, it must be the intention'of the party placing such property upon the real estate to make it a permanent accession to the freehold, (p. 631).</p> <p>3. Same — What Constitutes — Property Attached to Beatty.</p> <p>If such property is placed upon the real estate and both are used together for the accomplishment of the same purpose or design, that will be sufficient to meet the first requirement, (p. 637).</p> <p>4. Same — Presumption—Behuttal.</p> <p>In the case of grantor and grantee, if it be shown that the property is adapted to the use being made of the real estate, and is attached thereto, it will be presumed that it was intended to become a part of such real estate, but such presumption may be overcome by showing that the owners of the property' treated it as personalty during the time it was being used in connection with the real estate, (p. 637).</p>

<p>1. Deed — Contract—Merger in Deed.</p> <p>Where a vendee of land, under a written contract of sale, subsequently procures a deed therefor to be executed to his wife, it will be presumed, in the absence of proof to the contrary, to have been executed in discharge of the contract which thereby becomes merged in the deed. (p. 641).</p> <p>2. Cancellation of Instruments — Deeds—Contract of Sale.</p> <p>A decree cancelling such deed for fraud in its procurement likewise annuls the contract of sale pursuant to which it was made, (p. 641).</p> <p>3. Partition — Parties—Egmtahle Owner.</p> <p>To authorize a party claiming only an equitable title’ to maintain a suit for partition, it is essential that his equity be complete, such as entitles him to demand a conveyance of the legal title, (p. 642).</p> <p>4. Estoppel — Warranty Deed — Heirs.</p> <p>A deed with covenants of general warranty, purporting to convey land in which the grantor has only a prospective inheritance, and to which he never "becomes entitled because of his death within the lifetime of his ancestor, does not estop his children from asserting title as heirs of their grandparent, (p. 642).</p> <p>5. Same — Execution of Deed — After-Acquvred Title.</p> <p>A married woman living with her husband is. not, nor is her ' heir estopped by her deed, or any covenant of warranty therein, from setting up against her grantee an after-acquired title, (p. 643).</p>

<p>Error to Circuit Court, Summers County.</p> <p>Action on the case for damages by Janet E. Miller against C. H. Skaggs. Judgment for plaintiff, and defendant brings error.</p>

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

<p>Error to Circuit Court, Raleigh. County.</p> <p>Action by the County Court of Raleigh County against C. V. Cottle and others. Judgment for plaintiff, and defendants bring error.</p>

<p>'Appeal from Circuit Court, Jackson County.</p> <p>Suit by Clara May Patterson against John W. Clem and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Pleading — Amendment—New Cause of Action.</p> <p>Amendment of a declaration in trespass by adding thereto additional counts, which aver with greater particularity and precision than was done in the original declaration, the duty of defendant and the negligence causing the injury complained of, and increases the damages, is no departure from the original cause of action, (p. 675).</p> <p>2. Appeal and Error — Harmless Error — Opimon Evidence.</p> <p>A party is not prejudiced by the opinion evidence of witnesses, not competent as experts, if their opinions coincide with the opinions of the experts testifying for the opposite party, (p. 675).</p> <p>3. Evidence — Admissibility—Photographs.</p> <p>Photographs of a building and its surroundings, taken after an explosion of nitro-glycerin causing its wreck, are admissible to show the effect of the explosion, if identified either by the artist who took them or by some other person familiar with the scene, (p. 676).</p> <p>4. Explosives — Evidence—Belevancy.</p> <p>Where it is shown that another person, working nearby, was instantly killed by an explosion that injured plaintiff, It is permissible to prove on what part of the body of deceased the fatal wound appeared, (p. 677).</p> <p>• 5. Same — Care Beguvred.</p> <p>The following instruction, applicable to the facts in this ease, is approved: "The jury are further instructed that a person in the possession or control of nitro-glycerin designed to be used by him is bound to the highest degree of care to take every reasonable precaution to prevent explosion, (p. 677).</p> <p>6. Master and Servant — Workmen’s Compensation — Bight of Action Agamst Third Persons</p> <p>An employe who receives compensation for an injury from the workmen’s compensation fund, is not thereby estopped to sue a third person, not his employer, whose negligence caused his injury, (p. 678).</p> <p>7. Same — Injwry to Third Person — Disobedience of Instructions.</p> <p>The negligent performance of an act done within the scope of the servant’s employment, causing injury to a stranger, renders the master liable. ' Private rules and instructions, prescribed by the master to govern his servant in the performance of his duty, do not excuse the master, (p. 678).</p> <p>8. New Trial — Newly Discovered Evidence — Cumulative Evidence— Impeaching Evidence.</p> <p>After-discovered evidence which is only cumulative and not of such character as will likely produce a different result on a new trial, or which simply tends to impeach the testimony of a witness, does not warrant setting aside a verdict, (p. 680). ,.</p>

<p>1. Homicide — Misdemeanor—Imprisonment.</p> <p>By section 9, chapter 152, and section 4, chapter 144, Code 1913, conviction of an attempt to commit voluntary manslaughter is but a misdemeanor, and a judgment on such verdict of imprisonment in the penitentiary is void. Explaining State v. Ballard, 55 W. Va. 379. (p. 682).</p> <p>2. Habeas Corpus — Void Sentence — Imprisonment.</p> <p>One so convicted and sentenced may be discharged from such illegal and void sentence on writ of habeas corpus, (p. 683).</p>

<p>Appeal from order of State Compensation Commissioner.</p> <p>Proceeding under Workmen’s Compensation Act by Gae-tano Poccardi, Royal Consul, etc. (Raffaele Cueca and Anna Luigia Pirisi, claimants), to obtain compensation for tbe death of their son Giovanni Cueca. Compensation was denied by the State Compensation Commissioner, and claimants appeal.</p>

<p>1. Carrier — Carriage of Goods — Delivery and Acceptance.</p> <p>A carrier is bound to deliver goods entrusted to it for shipment, at the place of destination named in the contract, and cannot compel the owner to accept them elsewhere, (p. 695).</p> <p>2. Same — Carriage of Goods — Delivery—Warehousing—Meshipment.</p> <p>Even though a consignee of 'goods does not call for them within such time after arrival as will prevent expiration of the carrier’s liability therefor as carrier, the latter is bound to hold them at the place of destination, as a warehouseman, for a reasonable time; and its unauthorized reshipment thereof from such place is wrongful and imposes absolute liability for their loss in the unauthorized transit and custody, (p. 695).</p> <p>3. Same — Carriage of Goods — Charges—Liability for Loss.</p> <p>Charges founded upon a wrongful reshipment of goods from their destination after delivery there, are illegal, and detention of the goods, on their return to the place of destination, for nonpayment thereof, is wrongful and subjects the carrier to absolute liability for loss thereof, occurring within the period of such detention. (p. 696).</p> <p>4. Same — Carriage of Goods — Meshipment—Notice—Liability for Loss.</p> <p>A carrier’s unauthorized and wrongful removal of goods from their place of destination, after delivery there, imposes upon it duty to notify their owner of the probable date of return thereto, and omission of such duty subjects the carrier to absolute liability for loss of the goods, occurring between the dates of their return and the owner’s knowledge thereof, (p. 698).</p> <p>5. Same — Carriage of Goods — Notice to Consignee.</p> <p>In such ease, the general rule absolving the carrier from duty to notify the consignee of the arrival of goods at their place of destination and making it his duty to await their arrival and inquire about it, does not apply. To make it applicable, the carrier must give notice of the date of the return shipment, (p. 698).</p> <p>6. Appeal and Error — Barmless Error — Mulmgs at Trial.</p> <p>If no verdict other than the one found and returned on the trial of a ease would be consistent with the law applicable to the clearly established facts of the ease, errors' in rulings made in the progress of the trial are deemed harmless, and a new trial -will not be granted on account thereof, (p. 699).</p>

<p>1. Husband and Wife — Torts—Wife’s Inability.</p> <p>„ Although by the married woman’s act, chapter 66, Code, the husband is not exonerated from the common law liability for the torts of his wife, based as it is upon his presumed control over her person and conduct, yet by declaring that a married woman may sue and be sued as a feme sole, without joining her husband, where the action concerns her separate property, it imposes liability on her alone for the negligent management and control of such estate if therefrom injury results to another without fault on his part. (p. 704).</p> <p>2. Negligence — Condition of Property — Liability of Sews.</p> <p>Where, by the death of the ancestor intestate, title to his real estate devolves upon his heirs, they are liable for the consequences of its defective maintenance, although' decreed to be sold, but not then sold, to satisfy his liabilities; and if by the removal of one or more walls of a building thereon, partially destroyed by fire, other walls are weakened so as to render them dangerous to persons' or property, either because of the fire alone or jointly with other natural causes within the control of the owners, they are liable for any injury occasioned by the subsequent collapse or fall of one of such walls, the person injured being without fault in respect thereof, (p. 702).</p> <p>3. Appeal and Error — Reversal—Instructions—Issue and Evidence.</p> <p>Where upon the trial of an action each party requests and the court grants binding instructions upon the facts relied on by him, based on inconsistent but separable theories of liability, this court will not reverse solely because the instructions failed to present.all the facts proved in support of each theory submitted for jury determination, (p. 707).</p>

<p>1. Judgment — Equitable Belief.</p> <p>Upon original bill, equity will relieve from a judgment against a wife conceived and procured by the plaintiff therein merely as the fraudulent means of obtaining and appropriating to his own use, by execution sale thereunder, the personal property of her husband, the plaintiff in the bill, who in the exercise of due diligence was without knowledge of the fraud until after such sale and conversion, (p. 711).</p> <p>2. Same — Equitable Belief — Parties.</p> <p>In a suit to annul the judgment and restore to the husband the personalty so obtained or its value, the wife is a necessary party. (P- 712).</p> <p>3. Equity — Dismissal Without Prejudice.</p> <p>Where in such case, because the wife is not made a party, a demurrer to the bill, otherwise good, is sustained with leave to amend, and later the bill is dismissed because not amended, the dismissal should be without prejudice, to afford opportunity to bring in the absent party by a new bill, to the end that justice may not be defeated, (p. 712).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Suit by .Lizzie Keene against the 'City of Huntington. Judgment for plaintiff, and defendant brings error.</p>

<p>'Action by Arch Ashley against the Tri-State Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court,- Mason County.</p> <p>Action of assumpsit by the Mineral Ridge Manufacturing Company against A. E. Smith, doing business, etc. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by J. W. Burke against Bettie Nutter. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Juror — Challenge—Statutory Provision.</p> <p>By section 3, chapter 159, Code 1913, one accused of a felony is entitled as a matter of right to a panel of twenty jurors, unexceptionable under the rules of the common law, before being called upon to exercise his right of peremptory challenge, (p. 748).</p> <p>2. Same — Disqualification—Interest.</p> <p>An employee of a railway company prima facie is disqualified to sit as a juror in the trial of one indicted for stealing or buying and receiving property of the railway company alleged to have been stolen, (p. 749). '</p> <p>3. Criminal Law — Opinion Evidence.</p> <p>The opinion of a witness, not an expert, as to any fact in issue before the jury is not generally admissible, unless from the very nature of the subject in issue it cannot be stated or described in such language as will enable persons not eye witnesses to form an accurate judgment regarding it, and an opinion based on an inconclusive fact and argumentative in character should not be admitted. (p. 750).</p> <p>4. Receiving Stolen Goods — Evidence—Knowledge.</p> <p>On the trial of one accused of buying and receiving stolen goods, knowing them to have been stolen, evidence that such goods were bought and sold in the same market by and from individuals, mining companies, and manufacturing concerns, and is merchandise commonly on the market, is properly admissible on the question of the guilty knowledge of the accused and the bona fides of the transaction, (p. 753).</p>

<p>1. 'Equity — Jurisdiction—Title to Land.</p> <p>There is no jurisdiction in a court of equity, to determine a question of title to land, dependent upon oral evidence of the execution of a deed alleged to have been lost and its contents and of adverse possession under it, sufficient to vest title, (p. 758).</p> <p>2. Adverse POSSESSION — Deed—Issue.</p> <p>A child in possession of land formerly constituting a part of the tract on which his father resides, under a valid deed therefor from his father, holds in his own right under the deed, and, as between them, no question of title by adverse possession arises, (p. 758).</p> <p>3. Same — Vendor and Purchaser — Becord as Notice — Color of Title.</p> <p>Though an unrecorded deed is void as to a subsequent purchaser for value and without notice, the grantee therein and others claiming under him may rely upon and use the same as color of title, against such purchaser, in proving title in themselves by adverse possession, to the land the deed purports to convey, (p. 758).</p> <p>4. INJUNCTION — Waste—Possession Under Life Tenants.</p> <p>An entry upon land by permission of a life tenant thereof confers no greater right-than such tenant had, and it affords no basis for an application to a court of equity for interposition of its in-junctive process, for protection of the entrant in the performance of acts thereon which, if done by the life tenant, would be regarded in law as waste, (p. 759).</p> <p>5. Partition — Parol Partition — Title—Effect.</p> <p>A parol partition of land does not effect a severance of the common title, unless it is followed by possession of the several parcels, in such manner and to such an extent as to effect ousters of the parties by one another, and for such time as is sufficient' to vest title by adverse possession, (p. 760).</p> <p>6. Injunction — Trespass to Beatty — Equity—“Trespasser</p> <p>One who, without perfect and superior title in himself, peaceably enters upon a portion of a tract of land, actually occupied by another under claim and color of title, but without the consent of the latter and against his will, is a mere trespasser, and equity will extend him no aid in his efforts to maintain Ms position on the land. (p. 761).</p>

<p>Error to Circuit Court, Jackson County.</p> <p>Proceding by R. C. Alleman and another against T. J. Sayre, receiver, etc., and others. Decree denying plaintiff’s right of preference in .distribution of assets, and they appeal.</p>

<p>Error to Circuit Court, Lincoln County.</p> <p>Action by Lawson Thompson against B. B. Curry, D. E. Wilkinson, Granville Curry, S. S. Johnson, and John W. Mc-Colgin. Judgment for plaintiff against Wilkinson only, and plaintiff brings error.</p>

<p>Error to Circuit Court, Cabell county.</p> <p>Action by Central National Bank of Portsmouth against the Sciotoville Milling Company, Elizabeth L. Wriston, and others. Judgment for plaintiff, and defendant Elizabeth L. Wriston brings error.</p>

<p>Petition by Harold Sigler for a writ of mandamus against the Board of Canvassers of Marshall County and others.</p>

<p>Appeal and Error — Record,—Matters to he Shown — Preservation of Grounds of Review.</p> <p>To entitle a litigant to a review by this court of an' alleged error committed in directing a verdict, it is essential for the record to show that he moved for a new trial and his motion was overruled and he excepted to the ruling.</p>

<p>Error to Circuit Court, Wyoming County.</p> <p>Action by John Roach against the Harty Coal Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Constitutional Law — Judgment—Powers of.</p> <p>In so far as sections 15 and 16, ch. 27, Acts 1915 (§8b, eh. 5, Barnes' Code), purport to authorize a judge to whom application is made, as therein provided, to order a judicial inquiry, if in his opinion the interests of public justice require it, to ascertain whether a candidate for United States ' Senator in person or by agents expended to secure his election money or other things of value in excess of the amount allowed in that chapter sufficient to influence materially the result of the election, and to require the judge to certify his opinion and determination and the evidence adduced before him upon such investigation “to the governor of the state, who shall transmit the same to the proper authorities of the United States government for such action as said authorities may deem proper", they are obnoxious to and conflict with Article Y of the Constitution of this state, in that they attempt to empower a member of the judiciary as such to exercise a volition to determine when, to what extent or whether a judicial inquiry into alleged corrupt practices shall be undértaken by him upon such application, (p. 797).</p> <p>2. Same — Legislative Power — Delegation.</p> <p>Such a statute is void also because it attempts to delegate a non-delegable power. Upon the legislature the people have impliedly conferred authority to determine the exigencies or emergencies that warrant the exercise of police power to promote the general welfare of the citizens of the state; and it can not redelegate to any one the ultimate right to determine when, to what extent and under what circumstances the power may properly be exercised in any given ease. (p. 805).</p> <p>3. United States — Election of Senators — Validity—Determination.</p> <p>In the Senate of the United States, under an express declaration of the Federal Constitution, vests the exclusive power and authority to judge of the election, returns and qualifications of its members, and no other power or body lawfully can interpose or in anywise attempt to control or influence the determination of these questions, or declare void an election held to select such a member. (p. 808).</p>