Volume 80 — West Virginia Reports

<p>1. Judgment — Suit by Motion — -Statute.</p> <p>Suit may be brought and maintained on a fire insurance poliey by motion, after due notice thereof, as provided by See. 6, Oh. 121, Code of W. Va. (p. 2).</p> <p>2. Insurance — Fire Insurance — Provision Against Assignment— Limitation of Agent’s Authority — Validity.</p> <p>The following provision in a fire insurance poliey is a reasonable condition and is binding on the insured, viz.: “This entire policy unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, * * * * if this poliey be assigned before a loss;" and further provisions therein that, “no officer or agent of the company shall have power to waive any of the provisions or conditions of the poliey except such as by the terms of the poliey may be the subject of agreement endorsed hereon or added hereto; ’ ’ and that no officer or agent shall have power to waive any of the conditions, “unless such waiver, if any, shall be written upon or attached hereto,” are reasonable limitations'upon the agent’s powers of which the insured is bound to take notice, (p. 3).</p> <p>3. Same — Fire Insurance — Transfer of Poliey — Indorsement.</p> <p>Such policy is rendered void, if a transfer thereof is -made by the insured before loss, without such written consent, even though made under oral advice and direction of the agent, (p. 8).</p>

<p>1. Mandamus — Possession of Office.</p> <p>One who has been duly elected a member of the common council of a city, town, or village pursuant to chapter 47, Code 1913, and the returns of such election have been canvassed, the result ascertained and declared, and a certificate of election has been issued to him, and he has taken the proper oath, is prima facie entitled to the office, and when denied his right mandamus lies to admit him to his seat in such council, (p. 10).</p> <p>2. Municipal Cokpokations — Council—Determination of Election of Member.</p> <p>The council to which such member has been so elected, and not some previous council is the one entitled to further sit in judgment on his election to and qualification for the office, (p. 12).</p> <p>3. Same — Council—Bight to Office.</p> <p>But his prima facie right is not conclusive in a proper proceeding instituted against him to try his right and title to the office, (p. 13).</p>

<p>Error to Circuit Court, McDowell County'.</p> <p>. Action by Sallie M. Billups and others against G-rat Wool-ridge. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Suit by Elizabeth F. Croobshanks and others against Homer Ransbarger and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Original application by C. C. Beavers for a writ of habeas corpus against D. C. Collins, jailer, etc.</p>

<p>1. Insubance — Cancellation of Policy — Poiuer of Agency — Recovery.</p> <p>Where the authority conferred upon an insurance agency by a property owner relates only to the procurement of a policy of fire insurance, which provides that it may be cancelled by the company upon five days’ notice to the insured, the agency in effecting a cancellation at the direction of the insurer is its representative; and an instruction by the company to the agency, though timely given, to cancel the policy, and the action of the agency on the day before loss by fire in canceling the contract and substituting therefor a policy in another company, knowledge of which is not acquired by or communicated to the insured until after the fire, are ineffectual to discharge the original contract or to defeat recovery thereon, (p. 40).</p> <p>2. Same — Fire Insurance — Waiver hy Agent — Statute.</p> <p>A clause in a fire insurance policy, in the form authorized by §68, ch. 34, Code, forbidding waiver by an agent of “any provision or condition” thereof except by written endorsement thereon, relates to provisions and conditions the performance and fulfillment of which are essential to the validity of the contract and its continuance in force, and does not refer to stipulations to be performed after a loss has occurred, (p. 44).</p> <p>3. Same — Fire Insurance — Waiver of Provisions.</p> <p>Notwithstanding such clause, the condition of the policy requiring notice and formal proofs of loss by the insured may be waived by parol by a local agent empowered to issue policies, collect premiums and make renewals and cancellations, (p. 45).</p> <p>4. Same — Pwe Insurance — Notice of Proofs of Loss — Waiver.</p> <p>Such condition is waived by conduct by tlie insurer or its authorized agent amounting to a recognition of liability, as an assurance or offer of payment of the loss or negotiations for its settlement as if formal proofs actually had been furnished, or if what is so said and done reasonably induces the insured to believe that proofs are not required or necessary and he is influenced thereby to rely in good faith thereon, (p. 44).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Suit by J. W. Doss for the benefit of Ms assignees against Edward O’Toole and others, members of the Board of Education of Adkin District, McDowell County, and C. G. Sea-ton, secretary of the board. Judgment for plaintiff, and defendants bring error.</p>

Distress proceeding by J. M. Payne against the Scott Motor Car Company, in which H. L. Riggs filed a claim and gave a forthcoming bond, and in which, after he failed to have the property forthcoming, plaintiff moved for execution on. the bond.. Judgment for plaintiff, and defendants bring error.

Contempt proceeding by the State, on the relation of William R. Woodcock, against Charles W. Barrick and E. H. Yost. Respondents adjudged in contempt of the Supreme Court of Appeals by reason of their violation of its order, and adjudged to pay a fine.'

Bill of review by Hattie Harrison against George W. Har-man and W. F. Harman and others. Decree for plaintiff, and defendants George W. Harman and W. F. Harman appeal.

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by L. P. Spangler against R. N. Vermillion, trustee, and others. Decree dismissing the bill, and complainant appeals.</p>

Proceedings under the Workmen’s Compensation Act by Mrs. Mont Foughty to obtain compensation for the death of her husband, Mont Foughty, while employed by the Southern Torpedo Company. Compensation was denied by Lee Ott, Compensation Commissioner, and the petitioner appeals.

<p>Municipal CORPORATIONS — Altering Grade of Street — Damages.</p> <p>For altering the grade of a street after owners of abutting property have built on their lots with reference to the then existing grade, to their injury and detriment, a city is liable in damages to' the extent of the depreciation in the market value of the property occasioned thereby, (p. 96).</p> <p>Same — Altering Grade of Streets — Action for Damages.</p> <p>Injury by such alteration is a distinct ground of action, (p. 96).</p> <p>3. Same — Change i/n Grade of Streets — Damages—Elements.</p> <p>As an incident, factor or element of such injury, but not as a substantive ground of action, exposure of the property to inconvenience and injury from rain, snow and surface water may be proved, on the trial of the action for recovery of damages on account thereof, (p. 96).</p> <p>4. Same — Change in Grade of Streets — Damages—Depreciation im Value.</p> <p>Since the comparison of the antecedent and subsequent market value for determination of the depreciation, is theoretically contemporaneous with an instantaneous alteration, general depreciation in values at or about the date of the alteration is immaterial, (p. 95).</p>

<p>1. Pleading — Variance—Place of Injury.</p> <p>An allegation of the place at which an injury is alleged to have been occasioned on a railroad, by the negligence of the railroad company, through its servants, laid under a videlicet, does not limit the proof to the exact spot so designated in the declaration, nor estop the plaintiff from proving a slightly different place as an evidential fact constituting an element in his theory of the negligence averred, (p. 105).</p> <p>2. Master and Servant — Action for Injury — Declaration—Place of .Injury.</p> <p>Like the time, the exact place of an injury by negligence on a railroad is so far immaterial that it need not be strictly proved, if alleged, wherefore the allegation thereof may and properly should be, laid under a videlicet, (p. 105).</p> <p>3. Witnesses — Impeaching Own Witness — Contradictory Evidence.</p> <p>Though a party cannot impeach a witness called by him, he is not bound by everything such a witness may say. He may prove the material facts of Ms ease by other evidence, even though in effect it directly contradicts such witness, (p. 107).</p> <p>4. Master and Servant — Action for Injury — Question for Jury— Negligence.</p> <p>An issue as to negligence in the operation of railroad trains, dependent upon oral testimony as to relative positions and inconclusive inferences arising from admitted or established facts, properly falls within the province of the jury for determination, (p. 107).</p> <p>5. Same — Action for Injury — Question for Jwy — Place of Injury.</p> <p>Against the measured and proved distance from the point at which witnesses say a train stopped and the admitted length of the. train, put in evidence to prove the exact location of the rear thereof, at the time of a collision therewith by a following train, the oral testimony of witnesses to its location elsewhere, founded upon mere casual observation, aided by inferences arising from admitted positions in which the bodies of persons injured and killed by the collision were found thereafter, and the location of derailed and injured cars and debris, does not prevail to such an extent as to warrant withdrawal of the issue from the jury, by exclusion of the evidence and direction of a verdict, (p. 107).</p> <p>6. Same — Action for"Injury — Question for Ju/ry — Obstructed Vision.</p> <p>An issue as to whether fog so far obstructed vision as to prevent .the men in charge of the engine of a following train from seeing the markers on the rear of a preceding one, at a certain place, properly goes to the jury on proof of the facts that, within half an hour previous to the time in question, they had seen them for a distance greater than was necessary to afford time within which to stop the train, at another place less than four miles distant, and that railroad lanterns were visible at the place in question for a distance sufficient fox the purpose aforesaid, a few minutes after the markers should have been seen and heeded to prevent a collision, and the admission of the engineer that he could have seen the lantern of the flagman, if he had been out. (p. 108).</p> <p>7. Same — Injury to Servant — Negligence—Operation of Tram.</p> <p>Failure of a preceding train to flag the following one, on stopping at or near a station, does not absolve the men in charge of the engine of the latter from duty to maintain a reasonable look out for the presence of the former on the track, (p. 109).</p> <p>8. Same.</p> <p>If, in such ease, the enginemen of the following train are aware of the purpose of the preceding one to stop at or near a certain station, they are under duty to maintain a careful and vigilant look out for it, on approaching such station, and their failure to observe it, when visible, and stop their train or put it under control, is evidence of negligence, even though such information was derived only from the crew of the preceding train, (p. 109).</p> <p>9. Same — Action for Injuries — Operation of Trains — Buie.</p> <p>In the closing up of two or more trains at stations, the time limit of Rule 91 of the standard railway rules, does not apply, but relief therefrom necessarily imposes a limit of speed and a more rigid duty upon the train crews to take precautions for safety. Under such circumstances, few rules other than those requiring signals are applicable, and the safety of the trains and their crews depends upon the care and vigilenee of the train men, which should be adequate for such exigencies as experienced and skillful men are deemed to be able to provide for. (p. 109).</p> <p>10. Same — Injury to Servant — Operation of Trains.</p> <p>Though ordinarily a closing up at a station may be an authorized one, there is a closing up in fact, which the train men must observe, when the crew of a following train is aware of the' purpose of a preceding one to stop at or near a' station or siding, however such information may have been obtained; and, if the pur-; pose of the contemplated stop is not made known, they must take into consideration the known purposes for which trains of the character of the one in question make stops, (p. 110).</p> <p>11. Appeal and Error — Subsequent Writ of Error — Modification of Opinion.</p> <p>It is permissible to modify an opinion delivered on one writ of error, in passing upon a second one in the same ease, if no injury or injustice will result from such modification, (p. 111).</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action of trespass on the case by Jacob P. Schaffner and others against the National Supply Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error to Circuit Court, Clay County.</p> <p>Action by Lewis, Hubbard & Co., against J. J. Morton and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit for divorce by Gay Nelle Sperry against William I. Sperry and for alimony and maintenance for children, and for injunction against other defendants, and suit by William I. Sperry against J. F. Johnson and others to cancel deeds to such defendants and to cancel a power of attorney to defendant Johnson. Decree for plaintiff, Gay Nelle Sperry, dissolving an injunction, and dismissing the suit of William I. Sperry, and they appeal.</p>

Action by Pete Louis against tbe Smith-McCormick Construction Company. Judgment for defendant on sustaining tbe demurrer to tbe petition, and plaintiff brings error.

<p>1. Officers — Creation of Office — Abolition.</p> <p>Any body or tribunal having power to create a public office ha# implied power to abolish it, in the absence of a limitation'imposed by the authority conferring the power, or a prohibition in some law to which the creating body or tribunal is subject, (p. 167).</p> <p>2. Weights and Measures — Appointment of Sealer-^-Statnte.</p> <p>A statute mating sheriffs of counties eos-officio sealers of weights and measures, authorizing county courts to appoint sealers of weights and measures, whenever they shall deem it necessary, and making the terms of such appointed officers four years, when they are not appointed for some temporary purpose, does not create such office. By its bestowal of power upon county courts to appoint to the office, when they deem its existence necessary, it impliedly and necessarily authorizes them to create it. (p. 167).</p> <p>3. Counties — Officers—Sealer of Weights and Measures — Term.</p> <p>The, prescription of the term of the appointed officer, without words of limitation upon the implied power of abolition in the court, does not signify legislative intent to deny or withhold such power. Its context makes it provisional in character and it is operative only so long as the creating court sees fit to continue the existence of the office, (p. 167).</p> <p>4. Officers — Natwre of Office — Annexation of Duties of Another Office.</p> <p>An office to which the duties of another are annexed remains technically a single office. It is not an office under its own name and title and another under the name of the one whose duties are annexed or transferred to it. (p. 167).</p> <p>(Miller and Williams, Judges, dissenting).</p>

Bill for injunction by the Amherst Coal Company against the Prockter Coal Company. Injunction awarded, and from an order dissolving it on the motion of the defendant, plaintiff was awarded an appeal. Motion by appellee to dismiss the appeal, and motion by appellant to submit the cause for a hearing on the merits.

Action of trespass on the case by Anna Johnson against the City of Huntington. Demurrer to declaration overruled, and question whether the declaration states a cause of action certified to the Supreme Court from circuit court.

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by C. C. Paxton and others against the Benedum-Trees Oil Company. Decree for defendant, and plaintiffs appeal.</p>

<p>1. Landlord and Tenant — Condition of Premises — Implied Covenant.</p> <p>There is no implied covenant upon the part of the landlord in a lease that the premises are tenantable or reasonably suitable for occupation. In the absence of fraud or concealment by the lessor of the condition of the property at the daté of the lease, the rule of caveat emptor applies, (p. 202).</p> <p>2. Same — Condition of Premises — Repairs.</p> <p>There is no obligation upon a landlord to make repairs to leased premises during the continuance of the lease, in the absence of an express agreement to do so. (p. 202).</p> <p>3. Same — Negligent Repairs — Injwy to Tenant — Liability.</p> <p>Where a lessee of á storeroom is injured by the failure of the landlord to exercise due care in making repairs to that part of the building, the possession of which he retains, or by the negligent use by the lessor of such part of said building, such lessee may maintain a suit to recover damages for the injury resulting to him from such negligence, or want of due care. (p. 202).</p>

Suit by Charles Newton Steele and others against the American Oil Development Company and others. Judgment for plaintiffs, and defendants bring error.

<p>Equity — Jurisdiction.</p> <p>There is no jurisdiction in equity to remove cloud upon title, if the sole matter in dispute is the location of boundary lines, nor-to enjoin an alleged trespass on the disputed land, in the absence of an averment that an action at law is pending, or is about to-be brought to determine the title.</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit for injunction by Abrabam Bartrug and others against Clyde Edgell and others. Decree for plaintiffs, and defendants appeal.'</p>

<p>1. Partnership — Special Agreement — Effect.</p> <p>A general partnership organized for buying and selling land for profit is not limited in its scope by a special agreement between the partners, relating to the agency of the firm for a particular tract and defining and limiting the right of the parties in relation thereto, (p. 232).</p> <p>2. Same — Relation Between Partners — Good Faith.</p> <p>As between partners the relationship of principal and -agent-exists, and one partner will not be permitted directly or indirectly to purchase the interest of his co-partner in the partnership property or to reap any reward or benefit therefrom without the fullest, and'fairest disclosure of all the facts within his knowledge relative thereto, (p. 233).</p> <p>3. Same — Release of Partnership Contract — Fraud—Bill.</p> <p>The bill in this case held good on demurrer as one entitling plaintiff to relief based upon alleged fraud and deceit of defendant in procuring plaintiff to release him from his contract of co-partnership, and to transfer his, plaintiff’s, interest in the partnership property to a third person, (p. 233).</p> <p>4. Same — Bill for Accounting — Conditions Precedent.</p> <p>In such case the bill calling for discovery and an accounting is not bad on demurrer for failure of plaintiff to tender or offer to refund the price paid him for such partnership interests, when it is possible by final decree to put the plaintiff upon terms of doing . equity in the cause, (p. 236).</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by P. W. Riley against the Aetna Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Pleading — Admissions—Effect—Error in Description — Fraudulent Misrepresentations.</p> <p>Admission of a misrepresentation constituting the basis of a recital in a contract, accompanied by an explanation which, if true, shows the existence of the subject matter of the representation and discloses a, mere error in the description thereof in the contract, does not prove fraud in the making of the false representation. (p. 250).</p> <p>2. Same — Admission—Explanation.</p> <p>An admission in a pleading accompanied by an explanation qualifying or limiting its effect, is not to be treated as an unqualified admission. The admission and the explanation are to be read and considered together, (p. 250).</p> <p>3. Alteration of Instruments — Bills and Notes — Action—Failure to Object — Effect.</p> <p>If the maker of a negotiable note disclosing on its face, an alteration thereof respecting its amount, prejudicial to the payee and holder and advantageous to the former, makes no objection to it on the trial of an action thereon, on the ground of such alteration, admits the signature thereto, after inspection, and defends upon a wholly different ground, a jury would be warranted in finding the alteration was made, authorized or assented to by him, wherefore the court, 'on a demurrer to the evidence, should find the law as to the validity of the note, to be for the plaintiff, (p. 250).</p> <p>4. Vendor and Purchaser — Eecovery on Purchase Money Note — Condition Precedent.</p> <p>An agreement on the part of a vendor taking a note of the vendee, for part of the consideration, to sue on the note of a third party for the benefit of the vendee and prosecute such suit, is collateral to the purchase money note and independent thereof, wherefore performance of such agreement is not a condition precedent to right of recovery on the purchase money note. (p. 251).</p> <p>5. Set-Off and Counterclaim — Nonvmal Damages — Allowance.</p> <p>Mere nominal damages proved as matter of set-off or recoupment is disregarded under the maxim, De minimis non curat lex, in the ascertainment of the amount due the plaintiff, (p. 251).</p>

<p>1. Pleading — Demurrer—Construction of Statute.</p> <p>Tlie right reserved to a defendant, by see. 47 of eh. 125 of the Code, to appear and plead to issue, before the end of the term at which a judgment entered against him in the office of the clerk would become final, is broad and comprehensive, and includes the right to plead to an issue of law, by the filing of a demurrer to the declaration; and, if he appears and enters such a demurrer, before the judgment has been entered up in court, the plaintiff has no right then to have it so entered up, in disregard of the tender of the demurrer, (p. 253).</p> <p>2. Same — Defective, Demurrer — Pleading Over.</p> <p>If a demurrer so tendered is not well taken, the court, upon overruling the same, must permit the defendant to plead to an issue of fact, if he tenders the plea and counter affidavit, when the latter is required, before the judgment is entered up. (p. 253).</p> <p>3. Same — Demurrer and Plea — Construction of Statute.</p> <p>The statute reserves the right to appear and plead to an issue of law or an issue of fact, or both, as the defendant may elect, and he may raise them simultaneously by demurring and filing his plea at the same time, or successively, by demurring first and filing his plea after the demurrer has been overruled, (p. 253).</p> <p>4. Same — Plea—Time.</p> <p>In a case in which there is no order for an inquiry of damages, but in which the plaintiff has filed the statutory affidavit for proof of the amount of his. demand, the defendant may appear and plead . to issue, within the term at which the office judgment would become final, at any time before the judgment has been actually entered on the order book of the court. Notation of the default, preparation of the judgment order and direction to the clerk to enter the same, do not cut off the right of defense on the merits, (p. 253).</p> <p>5. Statutes — Construction—Derogation of Common Daw.</p> <p>Sections 46 and 47 of ch. 125 of the Code derogate from .the common law and regulate or restrict the constitutional right of trial by jury, wherefore they are strictly construed and cannot be enlarged by construction, in furtherance of legislative policy, (p. 255).</p>

<p>Error to Circuit Court, Jackson County.</p> <p>Action of debt on a bond of indemnity by T. J. Sayre, receiver, against C. L. McIntosh and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Equity — Decree Fro Confesso — Requisites of Bill.</p> <p>To support a decree pro confesso, the bill upon its face must state a good cause for equitable relief, (p. 276).</p> <p>2. Judsment — Proceeding to Enforce Liens — Bill Toy Assignee — Requisites.</p> <p>In a suit to enforce as a lien upon real estate a decree recovered by the receiver of an insolvent state banking institution, plaintiffs, who assert the lien as assignees thereof, must by their bill aver due authority of the receiver to make the assignment, (p. 276).</p> <p>3. Same — Proceedings to Enforce Lien — Parties.</p> <p>Where the assignees of such decree have constituted two of their number trustees to enforce and collect the lien on their behalf, the beneficiaries of the trust are necessary parties to a suit brought by the trustees for that purpose, (p. 276).</p> <p>4. Fraudulent Conveyances — Avoidance of Deed — Parties.</p> <p>In a proceeding to declare void as to creditors a deed fraudulently procured by the debtor, on her payment of the entire, purchase money, to be made to a third person as grantee, the grantor, who retains no interest in the land or lien thereon and against whom no fraud is charged or relief sought, is not a necessary party to the bill. (p. 279).</p>

<p>1. Mandamus — Action by Inferior Tribunal — ■Nature of Action.</p> <p>While generally mandamus lies to compel an inferior tribunal to act upon matters presented for adjudication if within its jurisdiction, it is not available to require the exercise of judicial discretion or judgment in any particular manner, or to reverse a decision when made if erroneous. Its office is to compel the exercise of judicial action, but not to determine what the result of the adjudication shall be. (p. 282).</p> <p>2. Same — Proceeding with Appeal.</p> <p>Where action by a circuit court upon a pending motion to dismiss an appeal from a justice has not been demanded by the petitioner, or declined or unduly delayed by the court, and the question presented by the motion is whether the complaint before the justice states a cause of action, mandamus will not lie to compel the circuit judge to entertain, try and determine the appeal. (p. 282).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>■ Ejectment by Joseph Killgore and others against the County Court of Cabell County. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Courts — Appellate Jurisdiction — Constitutional Provisions.</p> <p>Section 19 of article 8 of the constitution authorizes the legislature to create courts of limited jurisdiction with the right of appeal therefrom to the circuit courts. Section 12 of said article confers upon the circuit courts appellate jurisdiction in all cases, civil and criminal, where an appeal, writ of error or supersedeas may be allowed to the judgments or proceedings of any inferior tribunal. By virtue of these provisions of the constitution the right to review by appeal, writ of error, certiorari, or other appellate process, the judgments, decrees or proceedings of.such inferior courts as may be created by the legislature, is exclusively vested in the circuit courts, and it is not competent for the legislature to provide for the exercise of such appellate jurisdiction by any other tribunal, (p. 291).</p> <p>. 2. 'Same.</p> <p>Section 22 of chapter 109 of the Acts of the Legislature of 1915, providing for appellate process from the Supreme Court of Appeals to review the judgments, decrees or proceedings of the Court of Common Pleas of Kanawha County, is unconstitutional and void, (p. 294).</p>

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

<p>Error to Circuit Court, Pleasants County.</p> <p>Action by Samuel Boyles against Walter Reaser and others. Judgment for defendants, and plaintiff brings error. •</p>

Suit by John W. Kelly against the Wellsburg & State Line Railroad Company, and suit by Adamson & Murdock against the Wellsburg Coal Company and others. From the decrees of the circuit court, the Wellsburg National Bank, Elizabeth Dilworth Babler, and others appeal, and John J. Coniff;, administrator, etc., of the estate of Charles R. Dilworth, deceased, C. W. McQuoid, Elizabeth Thaw, and others take cross-assignments against the Wellsburg National Bank.

<p>Error to Circuit Court, Mercer County.</p> <p>Action by C. C. George against the Norfolk & Western Railway Company and others. Judgment for plaintiff, and •defendants bring error.</p>

Suit by L. M. McClintic, receiver, etc., against John L. Heehmer, the Marlinton Service Company, and others. Decree for plaintiff, and the defendant Marlinton Service Company appeals.

Action of assumpsit by A. W. Kocb and others, partners, etc., against the H. R. Wyllie China Company. Judgment for plaintiffs, and defendant brings error.

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Arthur Wayne against J. M. Cyphers and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Assumpsit by J. E. Berry, doing business, etc., against tbe Huntington Masonic. Temple Association. Judgment fob plaintiff, and defendant brings error.</p>

<p>1. Landlord and Tenant — Disclaimer of Temt/re Under Landlord— Effect.</p> <p>By disclaimer of tenure under his landlord and notice thereof to him, -a tenant may make his possession of the land adverse to the landlord and thus acquire title in himself, or establish it in a stranger under whom he subsequently holds, by adverse possession under the statute of limitations, (p. 379).</p> <p>2. Same — Landlord’s Title — Estoppel to Deny.</p> <p>An under-tenant is not estopped to deny his immediate lessor's title to land not covered by his, (the under-tenant’s), lease, (p. 379).</p> <p>3. Deeds — Evidence—Uncertainty—Partial Invalidity.</p> <p>A clause in a deed, reading as follows: "excepting also two other small tracts of land not to exceed in all three hundred acres,” is void for uncertainty. Lack of words therein by which to identify the land cannot be supplied by extrinsic evidence, (p. 381).</p> <p>4. Same — Exception—Construction.</p> <p>If the deed in which such clause is found conveys only the unsold lands of the grantor, lands sold by title bond, but not conveyed, prior to the date of the deed, are excepted, because not within the terms of the grant, and the excepting clause performs no important function, (p. 381).</p> <p>5. Same — Vendor’s Conveyance — Construction by Parties.</p> <p>If the person in possession of land under such title bond, after having been defeated in an -action of unlawful entry and detainer, by a stranger claiming the land under a title hostile to that of the vendor, took a lease of the land from the vendor, never afterwards paid any puichase money, remained in possession until after the deed for unsold lands was made and repurchased the same land from the grantee in such deed, 'and thereafter purchase money under the first sale was neither paid nor demanded, the parties to such deed are deemed to have interpreted and construed it as having passed the title to such land, as land unsold at the date thereof, upon the theory of a rescission or abandonment of the first purchase, (p. 381).</p> <p>6. Judgment — Construction and Effect.</p> <p>A judgment in an action of ejectment instituted against a lessee, in possession of the land sued for and adjacent land not sued for, under a single lease executed by a claimant of the land, hostile to the plaintiff, rendered against the lessor, he having been substituted for his tenant as defendant, on the theory that the tenant so in possession and sued was the plaintiff's tenant, does not preclude, by way of adjudication, right to establish title to the adjacent land, by adverse possession, under the hostile claim, by proof of requisite possession thereof by such tenant, subsequent to the date of the institution of the action and after disclaimer of tenure under the plaintiff therein and notice thereof to him. (p. 383).</p>

<p>3. Insurance — Beneficiary—Insurable Interest.</p> <p>Any person competent to contract may in good faith, lawfully procure insurance upon Ms life, and in the policy designate as beneficiary any one whom he may choose, though not related to him by blood or marriage. Insurance so procured is not invalid, or subject to condemnation as being obnoxious to public policy, (p. 387). '</p> <p>2. Same — Insurable Interest — Beneficiary-r-Foster Mother.</p> <p>A foster daughter, when acting in good faith, lawfully may procure insurance upon her life, payable to her if living at the expiration of the term fixed by the contract, and in the policy designate as beneficiary in the event the insured should die within the term the foster mother, who had assumed toward the insured a moral obligation to maintain and support her as a member of the family composed solely of the beneficiary and her husband, they being childless, (p. 387).</p> <p>3. Same — life Insure,noe — Beneficiary—Wagering Contract.</p> <p>Though valid on its face, such a contract of insurance ceases to be enforeible, because obnoxious to public policy, whenever in an action thereon by the beneficiary it appears from the proof intro-dueed upon the trial, competent and sufficient to satisfy the minds of reasonable men, that the policy partakes of the nature of a wagering contract upon the continuance of the life insured, and as such tends to induce a temptation on the part ■ of the beneficiary, by unfair means, to terminate such life rather than to prolong it. (p. 390).</p> <p>•4. Same — Life Insurance — Watering Contract — Question for Jury.</p> <p>Whether the insurance was obtained in good faith or for speculative purposes merely, either by the insured or beneficiary, depends upon the facts and circumstances surrounding the parties at, the time of its procurement; of the sufficiency of which, and of the-inferences to be drawn from them, to show the true character of the transaction, the jury, not the court, must determine, (p. 392) i</p>

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Suit by the County Court of Jefferson County for a mandatory injunction against Sarah Hopkins and others. Decree for plaintiff, and defendants appeal.</p>

<p>1. Bills and Notes — Blanlc Signature — Liability.</p> <p>The authority implied by a signature to a blank note, and the credit given, are so extensive, that the party so signing will be bound to a holder for value in due course, although such note was only authorized to be used for a, purpose different from that to which it has been perverted, (p. 406).</p> <p>2. Banks and Banking — Knowledge of Officer — Imputation to Banlc.</p> <p>The knowledge of an officer of a bank, acquired in a capacity other than as its representative, of an infirmity in commercial paper offered for discount, will not be imputed to the bank, when such official is also an officer of the corporation seeking the discount and has an interest in the transaction - so adverse to the bank that there is a reasonable presumption that he will not communicate his knowledge to it. (p. 406).</p> <p>3. Bills and Notes — Indorsement—Presentation amd Notice.</p> <p>To hold an endorsér of negotiable paper liable as such, it must be presented for payment at the place of payment, when due, and due notice given to the endorser of such presentment and of its dishonor by non-payment, (p. 408).</p>

<p>Original mandamus' by Owen P. Griffith against the County Court of Mercer County and others.</p>

<p>1. Evidence — Admissibility.</p> <p>Evidence which is immaterial and irrelevant to any issue in the case, and which tends to raise immaterial issues or to becloud the real issue, should be rejected, (p. 423).</p> <p>2. Libel and Slander — Qualified Privilege■ — Truth—Di/reoted Verdict.</p> <p>Where, in an action for slander, defendant admits the publication of the slanderous words, and shows a qualified privilege therein only, and fails by pleading and proof to establish the truth of the words spoken, and the absence of malice therein, plaintiff is entitled to an instructed verdict in his favor, (p. 423).</p> <p>3. Trial — Instructions—Credibility of Witnesses.</p> <p>An instruction to the jury that if they believe from the evidence that any. witness has wilfully testified falsely on any material point they are at liberty to disregard his entire testimony, is faulty and liable to mislead the jury, unless they are told in the same connection that they are entitled to give it such weight and credit as in their judgment under all the facts and circumstances in the case it is entitled to. (p. 423).</p> <p>4. Libel and Slander — Qualified Privilege — Burden of Proof — Question for Jury.</p> <p>Slanderous words spoken by a stockholder to directors and other stockholders of a corporation are not absolutely privileged, but the privilege is a qualified one, but in such eases the burden is upon the plaintiff to show actual malice, the question of malice being one of fact for the jury. (p. 425).</p>

<p>1. Contracts — Breach—Declaration—Election of Demedies.</p> <p>The declaration dn this case alleging a breach by defendant of a contract for hauling, by discharging plaintiff and refusing to permit him to complete the contract, and seeking to recover the profits which he would have realized from performance of the contract on his part, and averring his ability and willingness to do so, is not bad on demurrer for failure to show an election to treat the contract as rescinded, or kept alive, or as ended for all purposes, in accordance with the rule laid down in Bare v. Victoria Coal Colee Co., 73 W. Va. 632. (£. 430).</p> <p>2. Damages — Breach—Erofits—Proof.</p> <p>A contractor who sues for the profits on his contract, which he was prevented from fulfilling by his employer, without fault on his part, is entitled to recover the full consideration for such contract, less the expense of fulfilling the same. In such aetion he is not obliged to prove such profits with absolute certainty, but with such reasonable certainty only as will satisfy the jury of the reasonableness of his demand or estimate, (p. 430).</p> <p>3. Same — Measure—Breach of Contract.</p> <p>Point 5 of the syllabus in Bare v. Victoria Coal ‡ Colee Co., 73 W. Va. 632, re-affirmed and applied to the facts in this ease, (p. 431).</p> <p>4. Evidence — Parol Evidence — Eeceipt.</p> <p>A receipt, for money is prima facie evidence only of the facts recited therein, and like other receipts is subject to explanation or contradiction by extraneous oral evidence, (p. 435).</p> <p>5. TRIAL — JReguested Instructions — Given Instructions.</p> <p>The rejection of instructions to the jury fully covered by other instructions given does not constitute reversible error, (p. 435). ,</p> <p>6. Contracts — Action for Breach- — Evidence.</p> <p>A contract other than the one sued upon but which is referred to therein and constitutes the basis of the contract on which the action is predicated, and controls to some extent the rights of the parties thereto, is properly admitted in evidence on the trial of such action, (p. 436).</p>

<p>1. Mandamus — Municipal Corporations — Indebtedness — Fwnd for Payment — Bight to Writ.</p> <p>A municipal corporation has power and authority to provide funds a second time for payment of a valid debt against it, the funds first provided therefor having been diverted by it to other public purposes, and may be compelled to do so by writ of mandamus. (p. 438).</p> <p>2. Same — Indebtedness—Fund for Payment.</p> <p>The creditor in such case cannot consistently be required to await provision for his debt by a regular or general levy to be laid in the relatively remote future, if the municipal authorities are in default, by reason of their failure or refusal to provide therefor in a regular or general levy of a past year, in which it was their duty to provide for it. (p. 438).</p>

Action by Sarah P. Kyle against D. P. Huddlestun and others. Prom a judgment of the circuit court on appeal from justice’s court in favor of the plaintiff, defendants bring error.

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Dwight TL Teter, administrator, against Samuel A. Moore, for the annulment of a partnership settlement, and for the ascertainment of the true state of partnership affairs, and of the rights of the parties. Decree for complainant, and defendant appeals.</p>

<p>1. CRIMINAL Law — Indictment and Information — Contirmance—Bill of Particulars. . *</p> <p>A bill of particulars and a continuance will be denied, in a prosecution for the unlawful sale of intoxicating liquors, where the only ground assigned in the motions therefor is that the indictment, valid and in the usual form, does not specify the name of the person to whom the alleged sale was made. (p. 469).</p> <p>2. Jury — Challenge to the Array — Grounds—Disqualification of Commissioner — “De Pacto Officer.”</p> <p>That the term of one of the commissioners who participated in the preparation of the list from which were drawn and summoned the jurors for the term of court at which accused was convicted had expired prior to the preparation of such list, and he had not been reappointed nor any other .person appointed in his stead, is not ground for challenge to the array. Such commissioner,- acting colore officii is an officer, de facto, and his acts as such are valid and binding, in the absence of a showing of actual prejudice to the rights of the defendant, (p. 470).</p> <p>3. Criminal Law — Harmless Error — Bernards of Prosecuting Attorney,</p> <p>Remarks or conduct by a prosecuting attorney before the jury during the progress of a criminal trial will not constitute reversible error, especially where the jury are instructed to disregard the statements and conduct, unless it is manifest the rights of defendant were injuriously affected., (p. 472).</p> <p>4. Jury — Preparation of List — Directory Statute.</p> <p>The statute requiring jury commissioners to prepare and to the clerk deliver for record in Ms office a list of the jurors selected by them is directory, and a reasonable delay in the performance of that duty is not such a material irregularity as will warrant a motion to quash a panel drawn from the list. (p. 472).</p> <p>5. Criminal Law — Appeal—Loss of Notes of the Evidence — New Trial.</p> <p>Loss of the stenographic notes duly taken of the evidence adduced upon a trial is not ground for the award of a new trial by the appellate court, where the bills of exception prepared by the movant and properly signed and filed on the writ of error purport to contain all the evidence introduced before the jury and the proceedings had in the trial court, and there is no showing that, such bills are incomplete, (p. 473).</p> <p>6. Same — Appeal—Reversal—Conduct of Trial.</p> <p>This court will not reverse a judgment of conviction merely because the trial court refused to' permit a detective, engaged to procure evidence in a criminal prosecution, to state as a witness, on cross-examination, what monthly salary he received from the agency which employed him. (p. 475).</p>

<p>1. Sales — Bona Fide Purchaser — Requisites to Clarni.</p> <p>One who relies for protection upon the doctrine of bona fide purchaser must show that at the time of his purchase he paid a valuable consideration and how he paid it; and that he purchased with honest motives, upon the implicit belief in the validity of his vendor's claim of title, without notice actual or constructive of any outstanding adverse right of another, or immediate access to a source of knowledge which if pursued would have enabled him to ascertain the actual infirmity or lack of completeness- of the title be acquired, (p. 479);</p> <p>2. Carriers — Bill of Lading — Bona Fide Purchaser.</p> <p>If upon the face of a bill of lading there appears evidence sufficient to put an ordinarily prudent man upon inquiry as to the true ownership of the consignment, a purchaser, without such investigation as would disclose the true owner, from one (other than the consignee) who transfers to .him the bill of lading by mere delivery, and who has no title to the property, can not claim protection as a bona fide purchaser, (p. 479).</p>

<p>Error to Circuit Court, Jefferson County.</p> <p>James Wyndham was convicted of breaking and entering .and committing larceny, and he brings error.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by the County Court of Harrison County and others against the Hope Natural Gas Company. Demurrer for mis-joinder of parties plaintiff sustained and bill dismissed, and plaintiffs appeal.</p>

<p>Guaranty — Construction of Contract — Action by Bolder — Notice— Remedies Agaimst Principal Debtor.</p> <p>Where a party signs a contract agreeing, for a consideration deemed valuable to him, in case of the default of the principal' debtor in the payment of the obligation of his contract, to pay the same, which obligation is certain and definite as to the amount to be paid, and the time of such payment, such contract is one of' absolute guaranty, and upon the default of the principal debtor the holder of such guaranty-need not give notice thereof to such guarantor, and may institute and prosecute a suit against the guarantor without first exhausting his remedy against the principal debtor, and without showing that a suit against him would be unavailing because of insolvency, or for any other reason.</p>

<p>1. Sales — “Bailment”—“.Sale and Contract for Besale” — Construction of Contract.</p> <p>If one person receives from another a certain number of cattle and signs a written receipt therefor, reciting their combined weight to be a certain number of pounds, valued at 7c per pound, and therein .agrees to “turn them back” the latter part of the next summer, “at 7.60 per pound," and at the same time executes his negotiable note, corresponding in amount exactly with the value of the cattle ascertained by their weight and price per pound recited in the receipt, payable unconditionally twelve months after date, with interest, to the person from whom he received the cattle, the transaction is a sale and contract to resell in the future at an advance in price, and not a mere bailment, (p. 499).</p> <p>2. Same — Specific Performance — Personal Property — Breach of Contract — Damages.</p> <p>Such contract of resale, involving as it does only personal property, can not be specifically enforced, but its breach by either party entitles the other to damages which are measured by the difference between the value of the cattle at 7.60c per pound and their market value, at the time they were to be redelivered, (p. 501).</p> <p>(Lynch and Ritz, Judges, dissenting.)</p>

<p>Original mandamus by the State, on the relation of Thomas Weir, against the Board of Commissioners of Ohio County and others.</p>

<p>1. Counties — States—liability—Tower of Cowrts.</p> <p>The courts of this state have no inherent power or authority to create liability upon county funds or the state treasury. Their authority to do so must be derived from statute, (p. 510).</p> <p>2. Same — Expenditures—Statute—‘ ‘ Crime. ’ ’</p> <p>See. 21, Ch. 13, Acts 1913, known as the Prohibition Act, (See. 21, Ch. 32A, Barnes' Code,) authorizes the expenditure of county funds only for the purpose of the apprehension of persons charged with, and detection of violations of the prohibition statute. The word erirnie, employed in said section, does not embrace crimes in general, but only such violations of the prohibition statute as are made criminal, (p. 509).</p> <p>3. Same — Expenditures—Medical Fees — Authority.</p> <p>There is no statute in this state authorizing payment out of the county fund of special fees to a physician for services performed by him in making physical and mental examinations and tests of a prisoner, charged with the crime of murder, in order to be the better qualified to testify and for testifying as an expert, on behalf of the state, upon an inquiry concerning the prisoner’s sanity. . (p. 508).</p> <p>(POEEENBARGER, JUDGE, absent).</p>

<p>1. Banks and Banking — Payment of Checks — Liability of President.</p> <p>The president of a bank, in general charge and practical control of its business, having the cashier under his authority, who directs payment of the cheeks of a corporation which has no money on deposit in the bank, in which he is interested and to which he has obligated himself to lend his credit by endorsement or otherwise to enable it to pay certain debts, knowing that its indebtedness is equal to the full value of its property and franchise, is personally liable to the bank for the money thus paid out. (p. 516).</p> <p>2. Same — Acts of President — BatifieoMon—Knowledge.</p> <p>If, under the direction of the president, no record is made of such overdraft on the bank's books, but the cheeks of such corporation are simply carried as cash, and after parting with his interest in the corporation, the president causes the bank to discount its note and applies the proceeds to the discharge of the overdraft, without the knowledge by the directors of the purpose for which the note was discounted, he thereby conceals the real nature of ' the transaction, which prevents the subsequent approval by the directors of his act in discounting such note from becoming an ' implied ratification of his wrongful application of the bank’s funds in paying the worthless cheeks. Knowledge of an act is essential to its ratification, (p. 516).</p> <p>3. Same — Partnership—Torts—Joint Liability — Bank Director.</p> <p>On the principal of mutual agency between partners, all are liable to third persons for the tort of a co-partner, committed in due course, and in the interest of the partnership. Hence, a director of a bank, who is jointly interested with its president in a corporation to which he directs the bank’s funds to be paid without security, is jointly liable with him, as well as severally, for the bank’s loss. (p. 517).</p> <p>4. Same — Knowledge of Officer — Imputation to Bank.</p> <p>Knowledge by a director of a matter affecting his bank, which his personal interest would prompt him to conceal, can not be imputed to the bank. (p. 517).</p> <p>5. Equity — Laches—Imputation.</p> <p>Laches in asserting a right is not to be imputed, if the wrong is concealed, and the party affected has no means of discovering it. (p. 520).</p> <p>6. Banks and Banking — Officer’s Liability — Discharge.</p> <p>An officer's liability to his bank for a misappropriation of its funds, which is unknown to, and purposely concealed from it, is not discharged by his inducing a third person to execute his note to the bank and applying the proceeds thereof to replace such funds, the note itself not being paid. (520).</p> <p>(Miller, Judge, concurring).</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Suit by C. C. Kimball and others against the Sundstrom & Stratton Company, the Marion Steam Shovel Company, and others, to enforce a lien for the value of work and labor performed. Decree for plaintiffs, and the Marion Steam Shovel Company appeals.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by Will Morris against tbe Journal Company. Judgment for plaintiff, and defendant brings error.</p>

Suit by B. H. Ward and others for injunction against the Board of Education and others. Decree for plaintiffs, and defendants appeal.

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Bill by Harry P. Lord against Estella Lord for divorce. Decree for defendant, and plaintiff appeals.</p>

Bill by H. M. Bennett, trustee, etc., against the Clay County Bank and others. Bill dismissed on demurrer of the bank, and plaintiff appeals.

Assum,psit by E. M. Bays against R. M. Johnson and W. C. Barnes, as partners, etc. Judgment against defendant Johnson with judgment for defendant Barnes for costs, and plaintiff brings, error.

<p>Error to Circuit Court, Mineral County.</p> <p>Assumpsit by Salem L. Robinson against the Brotherhood of Railroad Trainmen. Judgment for plaintiff on defendant ’s demurrer to evidence, and -defendant brings error.</p>

<p>Error to Circuit Court, "Wyoming County.</p> <p>Election contest by A. J. Mullens against B. D. Dunman, and contests by five other petitioners against,various contes-tees. Motion to quash the notices sustained and proceedings dismissed by the Council of the Town of Mullens, and the contestant in each case objected and excepted, and from the circuit court’s refusal of writs of certiorari, its denial of the relief, its confirmation of tbe rulings of the common council, and its dismissal of the several petitions, contestants bring error.</p>

Suit in equity by W. E. Haymond, as administrator of J. S. Hyer, deceased, against Geo. E. Hyer and others, heirs, and A. W. Corley, with cross-bill by defendant Corley, and With replications and answers thereto by plaintiff and part of the heirs. Demurrer and exceptions to such replications overruled, and final decree denying' defendant Corley any relief, and he appeals.

<p>1. Insurance — Power of Agent — Substitution of Policy.</p> <p>If an agent of an insurance company be authorized by the insured to keep his property covered in a stipulated sum, notice to such agent of the cancellation of a policy is sufficient to authorize him to write or procure for the insured another policy as a substitute for the one cancelled, (p. 608):</p> <p>2.- Same — Cancellation of Policy — Notice—Waiver.</p> <p>Notice of an intention to cancel a policy of insurance as required thereby is for the benefit of the insured and may be waived by him or his authorized agents, (p. 608)..</p> <p>3. Same — Cancellation of Policy — Condition Precedent.</p> <p>Where the premium on a policy of fire insurance has not been paid return thereof is not a condition precedent to th¿ right to cancel the policy, (p. 608).</p> <p>4. Same — Cancellation of Policy — Substitution—Delivery.</p> <p>Where the agent of an insurance company is also constituted, agent of the insured to keep his property insured for a stipulated amount, and notice of cancellation of one of the policies is given him by the insurer, and another policy is procured by the agent as a substitute for the one cancelled, the substituted policy will become effective according to the agreement and the terms of the-policy without actual delivery thereof to the insured, (p. 608).,</p> <p>5. Same — Cancellation and Substitution — Unauthorized Agency — notification.</p> <p>And though such substituted policy may have been procured by an agent unauthorized, his unauthorized act may be subsequently ratified by his principal, (p. 609).</p> <p>6. Same — Agency—Notice of Cancellation — Substitution of Policy.</p> <p>While notice of cancellation to an agent to solicit or procure-insurance is not notice to the insured of such cancellation, nevertheless if such agent be also authorized by the owner to keep the-property insured for a sum certain he is thereby given implied authority to accept notice of the cancellation of a policy written or procured by him, and to write or procure another policy as a substitute for the one cancelled, (p. 609).</p> <p>7. SAME-7-Agency for Insured — Waiver of Notice of Cancellation.</p> <p>And with such authority to keep the property insured for a specified sum, implied authority is thereby conferred to also waive-the five days notice of cancellation thereby prescribed, and to-substitute another policy therefor effective according to the agreement and the terms of the policy, (p. 610).</p> <p>8. Same — Notice of Cancellation — Waiver—notification.</p> <p>Without such authority to waive notice of cancellation the assured may ratify, even after a loss has occurred, the unauthorized ' act of his agent in accepting such notice. (p..611).</p>

Suit for injunction by W. A. Lawson and others against the County Court of Kanawha County and others. Prom a decree overruling a motion to dissolve an injunction, defendants appeal.

Bill for injunction by Luther V. Harner and others against the County Court of Monongalia County and others. Decree for defendants, dissolving the injunction and dismissing the bill, and plaintiffs appeal.

<p>1. Schools and School Districts — School Bools Commission — Cancellation of Contract — Statute.</p> <p>The state school hook commission created by' §155a, ch. 45, Code, has no power, after completion of its work and adjournment sine die, to reconvene and cancel a contract, duly executed, created by the aceptance of the bid of a publisher and the formal signatures' of the proper parties, except for cause by law recognized as sufficient to invalidate any other contract, (p. 641).</p> <p>2. Mandamus — Superintendent of Schools — Contracts.</p> <p>The superintendent of free schools, ex officio a member and secertary of the commission and custodian of its records, can not, except for such cause, withhold from a publisher whose books have been adopted as required by law a copy of a duly executed contract therefor; and mandamus lies to compel such delivery, (p. 641).</p> <p>3. Schools and School Districts — School Bools Commission — Contracts — Copy.</p> <p>The statute creating the state school book commission directs the chairman thereof to execute in duplicate contracts awarded by it, and its secretary to deliver one copy to the successful bidder.- No order of the commission therefor is necessary, (p. 641).</p> <p>4. Same — School Bools Commission — Validity of Acts.</p> <p>The acts of such commission are to be treated as valid and binding, although the appointment of its members may have been irregular. Invalidity of . its acts can not by inference arise out of mere prematurity in appointment, where the right so to act is not challenged in a legal manner by competent authority, (p. 645).</p> <p>5. Mandamus — Board of Public Worlcs — Approval of Bond.</p> <p>.The board of public works can not, except for good cause, refuse to approve a bond duly executed to secure performance by á publisher of a contract awarded by the state school book commission. Such approval is a mere ministerial act; and mandamus lies against the members of such board, except the governor, to compel performance of that duty. (p. 645).</p>

<p>Appeal from Circuit Court of Kanawha County.</p> <p>Suit for injunction by W. R. Dooley and others against the Board of Education of Cabin Creek District and A. C. Lawrence, with cross-bill by defendant Lawrence. Decree for plaintiffs against defendant Lawrence denying the relief «ought by his cross-bill, and he appeals.</p>

Suit for injunction, appointment óf a receiver, etc., by H. L. Moore against the Lewisburg and Ronceverte Electric Railway Company and others, with cross-bill by a part of the defendants. Decree for plaintiff, and defendants appeal.

<p>1. Appeal and Erhor — Supersedeas—Effect.</p> <p>The effect of an appeal and supersedeas granted by the Supreme Court' of Appeals, or a Judge thereof, to a decree of a circuit court appointing a receiver, is to preserve the status quo existing at the time such appeal and supersedeas is made effective, and if at said time such receiver has taken charge of a railway company’s property and is operating the same, he is authorized to retain possession of such railroad and continue the operation thereof, (p. 604).</p> <p>2. Same — Supersedeas—Operation bp Receiver — Effect.</p> <p>If in such case it is desired to have the possession and control of such railroad withdrawn from the said receiver, or the operation of it by him discontinued, an order to this end may be procured upon a proper showing under the latter clause of §12 of ch. 135 of the Code, authorizing the entry of an order staying proceedings under a decree appealed from, either in whole or in part. (p. 604).</p>

Case Certified from Circuit Court, Kanawha County. Action by H. L. Wehrle against A. E. Price, trustee, and others. To a bill of review filed by Elsie Price, an infant, by her next friend, defendants demur. The demurrer was overruled, and the ease certified.

<p>1. Elections — Contest—Jurisdiction of City Commission.</p> <p>In accordance with the general rule enunciated in Tmniclc v. Town of Northview, 80 W. Ya. 9, 91 S. E. 1081, the commission of the City of Williamson, as constituted and sitting on June 30, 1917, was without jurisdiction to hear and determine a contest between one of its members, as then constituted, and one who, at the previous general election, held pursuant to the charter of said city, was a candidate for the term beginning July 1, 1917, and who had been found by said commission to have received the highest number of votes at said election, and its judgment therein was wholly void. (p. 676).</p> <p>2. Same — Contest—Trial De Novo — Jurisdiction of Lower Tribunal,</p> <p>The commission of said city so constituted being without jurisdiction, the circuit court upon appeal by one of contestants from the adverse findings and judgment of such commission, pursuant to section 11, of the charter of said city, acquired no jurisdiction to hear and determine de novo or otherwise the merits of such contest, this' upon the general principle that where an inferior court or tribunal has no jurisdiction of the cause an appeal from its decision therein confers no jurisdiction upon the appellate court, (p. 676).</p> <p>3. Prohibition — Jurisdiction of Lower Tribunal.</p> <p>And where the circuit court is about to hear and determine such contest upon appeal prohibition will lie to prevent its exer--eise of such jurisdiction, (p. 676).</p>

Certified from Circuit Court, Hancock County. Execution proceeding by the First National Bank of New Cumberland again'st Lee 0. Smith and Sarah J. Smith, with a suggestion of garnishment against the Eureka Pipe Line Company. Motion by the garnishee to quash the return of service sustained, and ease certified.

<p>Error to Criminal Court, Raleigh County.</p> <p>Della Rogers was convicted of keeping and maintaining a liquor nuisance, and she brings error.</p>

<p>1. Nesligance — Proximate Cause — Coneurent Negligence.</p> <p>No liability attaches to anyone for damages sustained by reason of the acts of God and the forces of nature, but a party whose wrongful acts co-operate with, augment or accelerate those forces to the injury of another is liable in damages therefor, (p. 684). ,</p> <p>2. Waters and Water Courses — Diversion and Overflow — Proximate Cause — Concurrent Negligence.</p> <p>One who erects such a structure in a stream as because of the character of the structure or the stream it can be seen, or reasonably contemplated, that damage will likely result therefrom to another, is negligent; and if the current of said stream becomes so obstructed, by reason of such structure being washed down in said stream, that the water therein is diverted from its ordinary channel and destroys the property of another, the party erecting such structure will be liable in damages, notwithstanding such structure may have been destroyed by an extraordinary flood, (p. 685).</p>

<p>1. Railroads — Fires—Evidence.</p> <p>In a suit for damages caused by a fire alleged to have resulted from sparks thrown from a passing locomotive of a railroad company, it is not necessary that direct evidence that the fire resulted from sparks so emitted shall be given, but this fact may be established by proof of circumstances excluding any other1 reasonable hypothesis, (p. 689).</p> <p>2. Same — Fires—N egligehce — •Presumptions.</p> <p>If in such case it is shown that the fire causing the damage resulted from sparks emitted from defendant’s locomotives, there is a presumption that the defendant’s negligence was the cause thereof; and if the defendant would absolve itself from liability for the damage caused by such fire, it must show that the locomotive was constructed, equipped and operated in a reasonably safe way. (p. 689).</p> <p>3. Same — Fires—Presimption of Negligence — Rebuttal.</p> <p>The presumption of negligence upon the part of the defendant company in such case may be repelled by showing that the locomotive, which it is charged omitted the sparks causing the fire, was equipped with approved spark arresters; that the same were in proper condition; that the defendant employed competent servants in the operation of said locomotive, and that these servants were performing their duties in a proper manner at the time of the fire. (p. 689).</p> <p>4.Evidence — Opinion Evidence — Competency of Employee.</p> <p>Where the competency of a person' to perform the duties of a particular employment, which requires the possession of technical knowledge or mechanical skill is involved, a witness who is acquainted with the manner of the performance of such duties by the party whose competency is questioned, and who also shows himself possessed of the requisite technical knowledge and mechanical skill for the proper performance of such duties, may testify that the party whose competency is questioned is competent, or is not competent, for the particular employment, (p. 690),</p> <p>5.Railroads — Fires—Presumption of Negligence — Rebuttal.</p> <p>The presumption of negligence arising from the fact that a fire was communicated by one of defendant’s locomotives is not overcome by the testimony of the enginemam in charge thereof that he was operating his engine in a proper way at said time. In order to successfully overcome such presumption of negligence it must also be shown that the fireman who was employed at said time, in manipulating that part of the engine in his charge, was a competent fireman, and was performing his duties in a careful and proper manner, (p. 690). '</p>

<p>Bill for injunction by Carrie Y. Gamble against John M. Kennedy. Decree for plaintiff, and defendant appeals.</p>

<p>Prohibition by the State in relation of Walter S. Hallanan, State Tax Commissioner and ex-offieio State Commissioner of Prohibition, against W. S. Thompson, a Justice of the Peace of Barker’s Ridge District, Wyoming County. .</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Trespass on the case by Tennessee Chafin, administratrix of the estate of C. C. Chafin, against the Norfolk & Western Railway. Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Bkeach of the Peace — Prohibition—Bond—Statute.</p> <p>A justice has no jurisdiction by -virtue of sections 31 and 32, of chapter 32A, Code of West Virginia, as amended in 1917, construed with reference to any other provision of said chapter, to require one accused of the offense prescribed by section 31, after a preliminary hearing, to enter into a bond conditioned not to violate any of the provisions of said chapter, as provided in section 10 thereof, applying to other offenses, and his attempt to do so is in excess of his lawful authority and jurisdiction and may be prohibited.</p>

<p>1. Courts — Concurrent Jurisdiction — Injunction.</p> <p>The general rule is that when courts of concurrent jurisdiction are in conflict, the court first to obtain jurisdiction of the subject matter and of the parties has the exclusive right to maintain the same, and can not be enjoined by such other court from the exorcise of that jurisdiction and from pronouncing and enforcing its judgments and decrees against the persons and property involved. (p. 721).</p> <p>2. Same — Priority of Jurisdiction — Attachment Lien.</p> <p>By attachment sued out pursuant to chapter 106, of the Code, of this State, and levied on the lands or personal property of defendant, a lien is thereby acquired and the court first to take jurisdiction thereby acquires the exclusive jurisdiction and dominion of the property, with right to pronounce and enforce its judgments and decrees respecting the same, and this is so whether the property attached be land or personal property taken into actual custody by the officer, (p. 722).</p> <p>3. Same — Concurrent Jurisdiction — Injunction.</p> <p>Nor can another court of concurrent jurisdiction so interfere .by injunction or otherwise upon the principle of avoiding a multiplicity of suits; want of equity jurisdiction of the subject matter of the controversy; merger of the. cause in the judgment or decree of some other court in a foreign jurisdiction. A1Í such supposed rights involve questions proper to be presented to the court first to acquire jurisdiction and dominion over the property involved, as provided either by statute or by some other suitable proceeding of intervention in that court, (p. 725).</p>

<p>1. Gifts — Gifts-to Son — Question for Jury.</p> <p>When a father is old and infirm, and the money or other property given by him to his son constitutes his whole estate, and the circumstances surrounding the transaction are such as tend to rebut the presumption of a gift, the question of fact is one which should be submitted to the jury, and in such cases it is error to direct a verdict for defendant, (p. 729).</p> <p>2. Money Received — Money Lent — Recovery—Common Counts in As-sumpsit.</p> <p>When money has been obtained by a son from his father, in consideration of promises unfulfilled, and which in equity and good conscience he should refund, or as a loan, the same may be recovered upon the common counts in assumpsit with bill of particulars filed, as for money had and received by defendant for the use of the plaintiff, or for money lent to him by plaintiff, as the fact may be disclosed by the evidence, (p. 730).</p>

<p>Action by John Canfield against the West Virginia Central Gas Company. Demurrer to declaration overruled and question of pleading certified by the trial court.</p>

<p>1. Payment — Recovery of Money Paid — Declaration—Demurrer— Special Count.</p> <p>A special count in a declaration in assumpsit, claiming right, of recovery of money as having been paid to the defendant under a .mistake of law or fact and setting forth all of the facts and circumstances relied upon as constituting a ground of recovery, is, in legal effect, a mere common count for money had and received, and a demurrer thereto is properly overruled, (p. 739).</p> <p>2. Same — Mistglce—Recovery.</p> <p>Upon mere proof that his deputy, after having paid out of public funds in his hands for the purpose, interest coupons constituting obligations of a board of education, which the deputy had the right so to pay, pledged or exchanged the same to a stranger :for money in an equal amount, representing his purpose in so -doing to be the procurement of money with which to discharge •other urgent obligations of the board of education, which it was his duty to discharge, and that such coupons were subsequently taken up from the holder by another of his deputies, without notice of the previous payment thereof, a sheriff cannot recover from such stranger the amount of money so subsequently paid to him. (p. 740).</p> <p>•3. Schools and School Districts — Obligation of Board of Education — Pledge or Exchange — Liability.</p> <p>Such a pledge or exchange does not alone and of itself create any debt or new obligation of the board of education nor purport to do so. (p. 740).</p> <p>-4. Same — Obligation of Board of Education — Extinguishment.</p> <p>Nor does such first payment of coupons by a deputy extinguish them utterly and for all purposes. The functions of such paper, do not end, nor do all rights and obligations respecting it cease, until it has been finally surrendered by the paying officer, in settlement with the issuing corporation, (p. 742).</p> <p>•5. Payment — Recovery—Loss.</p> <p>To recover in such an action, a sheriff must prove that he has sustained an actual loss, by reason of the subsequent payment, (p. 742).</p> <p>6. Same — Recovery—Evidence.</p> <p>Evidence offered in such case, tending to próve that the district obligations for the discharge of which the deputy represented, it to be his purpose to use the money obtained by the exchange or pledge of the coupons, were subsequently paid, without more, is properly rejected, (p. 744).</p> <p>7. Same.</p> <p>Evidence offered in such ease, tending to prove that the sheriff had reason to believe, before the coupons were pledged or exchanged, that his deputy was unfaithful and derelict, is properly rejected ,the negligence it tends to prove being too remote, (p. 744).</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit for divorce by Emory F. McKinney against Odell P. McKinney. From a decree confirming a report of a commissioner requiring defendant to pay certain sums per month for the maintenance of plaintiff and their children, defendant appeals, and the plaintiff brings cross-appeal.</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Charles Phillips was convicted of breaking and entering a railroad station house with intent to ^teal, and he brings error.</p>

<p>Appeal from Circuit .Court, Mingo County.</p> <p>Bill by H. D. Gibson against M. H. Hopkins.. Decree for defendant dismissing the 'bill, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by' Jennie K. Pence against W. A. Jamison and others to set aside a sale under a deed of trust. Decree for Jamison, and plaintiff appeals.</p>

<p>1. Insurance — Insurable Interest — Property of Married Woman.</p> <p>A married woman, who, with her own funds, constructs a -house upon a lot belonging to her husband, under an agreement that he will convey such lot to her in the event she builds a house thereon, has an insurable interest therein, (p. 775).</p> <p>2. Same — Fire Insurance — Recovery—Insurable Interest — Estoppel.</p> <p>One, having an insurable interest in real estate, who correctly states such interest to the representative of an insurance company when applying for insurance, and Who signs an application filled out by such representative in which the interest of the insured is stated to be a fee simple, will not be denied recovery upon a fire insurance policy issued pursuant to such application in case of loss of the property by fire, even though the interest of the insured is less than a fee simple, by reason of a provision in the policy making it void should the interest of the insured be other than that stated in the application. Such insurance company is estopped to say that the insured’s interest is other than its agent interpreted it to be at the time the application was made. (p. 777).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by W. F. Harman and others against the Dry Fork Colliery Company. Judgment for defendant, and plaintiff W. F. Harman brings error.</p>

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

Action, of trespass by John W. Waldron against W. M. Rit-ter Lumber Company, Verdict for plaintiff, and from a judgment setting aside the verdict and awarding a new trial, plaintiff brings error.