Volume 81 — West Virginia Reports

Circuit Court,' McDowell County. Suit by L. Kaufman against Aaron Catzen and others. Decree for plaintiff, and defendants appeal, and plaintiff takes a cross-appeal.

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Lester B. Allen, by -his next friend, against Eugene Lopkinsky. Judgment for plaintiff, and defendant brings error.</p>

Question Certified from Circuit Court, Clay County. Suit for specific performance by Doyal Moore against Josbua K. Moore and others. Motion to strike plea in abatement, and to enter a decree reviving cause, against defendants’ representatives overruled and plea sustained, and question certified.

Action by R. Lebow and others against the Macomber & Whyte Rope Company, with attachment, and with garnishment against A. S. Alexander and others. From an order of the circuit court, refusing an application for a writ of error to the judgment of the intermediate court against the defendant and the garnishees, they bring error.

Ejectment by Harold M. Ward against George Medley. From an order of the circuit court refusing a writ of error to a judgment for defendant rendered by the common pleas court, plaintiff brings error.

<p>Action of unlawful detainer by the Rosin Coal Land Comr pany against Ephriam Martin. Judgment for defendant, and plaintiff brings error.</p>

Action by Hector Thiry against the Banner Window Glass ■Company. From a judgment of the circuit court, on plaintiff’s 'appeal from a judgment of the intermediate court of the county, reversing such judgment and rendering judgment for plaintiff, defendant brings error.

Suit in equity, with an attachment, by the Yellow Pine Lumber Company against J. K. Mays, in which C. A. Ellis and J. D. Wygal filed petitions to enforce judgment liens.

Action by Chas. Shannon Butts against J. Fleetwood Butts. Verdict for plaintiff. From a judgment setting aside the verdict and awarding a new trial, plaintiff brings error.

<p>1. Specific Performance — Vendor and Purchaser — Promise to Improve — Rescission.</p> <p>If through his selling agent the owner of land, subdivided into lots, represents to a purchaser his intention to improve specified streets, equity will not rescind or require specific performance when the promise was made in good faith and much of the proposed work actually was performed, (p. 64).</p> <p>2. Same — Vendor and Purchaser — Promise to Improve Land — Fraud. —Rescission.</p> <p>If such promise be made with a secret and fraudulent purpose to mislead and deceive the vendee, who in reliance thereon is induced to accept a conveyance of land which otherwise he would not accept, equity will rescind, or compel specific performance of the agreement where no insuperable difficulty prevents the execution thereof, (p. 67).</p> <p>3. Same — Relief—Difficulty of Execution.</p> <p>Courts will not decree specific execution of a contract where, for any valid and lawful reason, compliance with the mandate is impossible, as where defendant can not perform the act required without the consent or permission of another who lawfully may and does withhold such consent, (p. 69).</p> <p>Same — Contract—Nature of Performance.</p> <p>Except where public or private interests demand and there is no other means of adequate redress, courts will not decree specific execution of contracts the performance of which requires the exercise of constant supervision, care and skill, (p. 70).</p> <p>5. .Vendor and Purchaser — Fraud of Vendor — Action for Relief.</p> <p>Where a vendor of land, through an agent, falsely represents as true a fact peculiarly within his knowledge, which if true is disclosed by a public record, and the vendee is misled thereby to his detriment, his failure to examine such record to verify the representation will not preclude his right of action or claim to equitable relief for the fraud and deceit, (p. 70).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Copenhaver & Massey Milling Company against Kanawha & West Virginia Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Partition — Joint instate — Equity—Jurisdiction.</p> <p>Where joint owners of a tract of land undertake to divide the same, and in doing so omit from the partition so made a part of the tract, either through the fraud of one of the joint owners, or because of the mistake of both of them as to the extent of their boundaries, a court of equity has jurisdiction at the suit of one of such joint owners to make further partition of the joint estate, (p. 79).</p> <p>2. Same — Equity Jurisdiction — New Partition.</p> <p>If in such case the parcels of land so assigned to the respective owners under the partition made by them have not changed, and nothing has been done thereon, and no condition has arisen which would make -it inequitable to do' so, a court of equity will ordinarily set aside the partition made by the parties 'and the deeds made in pursuance thereof, and partition the whole tract of land, (p. 79).</p> <p>3. Same — Act of Parties — Exclusion of Land — Partition m Equity.</p> <p>Where, however, the parties, or either of them, have so dealt with the lands so assigned as to make it inequitable to set aside such partition, a court of equity will not set aside the same or the deeds made in pursuance thereof, but will divide the land so excluded from such partition between the parties in the proportion that they are interested therein, (p. 79).</p> <p>4. Boundaries — Calls in Deed — Monument.</p> <p>Calls in a deed for an adjoining tract of land are calls for a monument, and where the location of such adjoining tract of land is certain it becomes a monument of the highest dignity, (p. 81).</p> <p>5. Same — Location.</p> <p>Where the description in a deed conveying a tract of land calls for the line of an adjoining tract, the location of which is undisputed or clearly established, it will control in locating such tract of land. (p. 81). .</p> <p>6. Partition — Judgment—Determination of Interests.</p> <p>Where in a partition suit it is ascertained that the plaintiffs seeking the 'partition are entitled to a particular interest in the tract of land sought to bo partitioned, and that the defendants are entitled' to the residue thereof, one of them owning the oil and gas, and the other all the remaining interest in such residue, it is competent for the court having jurisdiction to assign to the plaintiffs the share to which they are entitled, and to the deien-dants the remainder of said land; and should they desire to have their respective interests in such remainder determined by the court they may do so by proper pleading in such partition suit, or in an independent suit subsequently brought for the purpose, (p. 84).</p> <p>7. Same — Costs.</p> <p>In a partition suit, where the defendant denies that the plaintiff seeking partition is the owner of any interest in the land sought to be partitioned, and costs are incurred by the plaintiff in establishing this fact, such costs are properly decreed against the defendant denying the existence of such right, (p. 85).</p> <p>8. Same — Appointment of Commissioners — Oath—Presumption.</p> <p>A decree' appointing commissioners to partition lands between the owners thereof should ordinarily provide that such commissioners be sworn before entering upon the discharge of their duties, but a failure to so provide in the decree will not be cause for a reversal thereof. It will be presumed that the commissioners will comply with this requirement of the law before entering upon their duties, and should they fail in this regard advantage thereof may be taken by any party prejudiced by the report of the commissioners by excepting thereto, (p. 86).</p>

<p>Error to Circuit Court, Jefferson County.</p> <p>Assumpsit by H. H. McCormick against the Southern Express Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Criminal Law — Felony—lime of Trial.</p> <p>Section 23, chapter 145, of the Code, mates obtaining money, goods or the signature of any person by false pretenses, felonious offenses and punishable as prescribed thereby, (p. 95).</p> <p>2. Same — Trial for Felony — Terms—Discharge.</p> <p>By section 25, of chapter. 159, Code, one charged with a felony and held for trial is entitled to be discharged from prosecution if three regular terms of the court are allowed to elapse after the indictment without bringing him to trial, except for the reasons mentioned -in the statute, and the fact that he has been tried and convicted on another indictment found eotemporaneously with the first and sentenced to imprisonment in the penitentiary therefor, will not excuse the failure of the state to bring him to trial on the other indictment nor prevent his discharge from prosecution thereon, (p. 95).</p> <p>3. Same — Failure to Bring, to Trial — Discharge—Statute.</p> <p>And it is not necessary in. such case that the accused in order to - obtain his discharge should show 'that after the indictment he made demand for trial or was in any way prevented from doing so. It is the duty of the state to bring him to trial, if it would prevent his discharge, or excuse itself upon some one of the grounds prescribed by .the statute, (p. 95).</p>

<p>Error to Circuit Court, Roane County.</p> <p>Cully Vineyard was convicted of involuntary manslaughter, and he brings error.</p>

<p>1. Divorce — Grounds—1 ‘Desertion ’ ’--In tent.</p> <p>Though, t.o constitute desertion or abandonment authorizing a decree, of divorce from bod and board, actual withdrawal of one spouse from association and life with the other must bo aeeomp- • anied by intent on the part of the former to sever cohabitation, his more protestation of lack of such intent is not conclusive thereof, and is overthrown by his persistent and inexcusable refusal, for an unreasonable period, to resume cohabitation, upon a positive demand for his resumption thereof, (p. 109).</p> <p>2. Same.</p> <p>A husband's retirement from cohabitation with his wife in property owned by her and residence on property of his own with his children by a former wife, against her protest, in violation of an antenuptial agreement to reside in her property, and without a demand that she reside with him at his former home or in any other place provided for her, amounts -to a desertion justifying a decree of divorce from bed and board in her favor. (p.-109).</p> <p>3. Same — Desertion—Temporary Absence from Some.</p> <p>Though a husband may rightfully absent himself from his home temporarily, in the conduct of his business, that right does not protect him from the consequences of conduct amounting to desertion. (p. 109).</p>

<p>1. Intoxicating Liquors — Prohibition Law — Discretion of Prosecuting Attorney — Constitutionality of Statute.</p> <p>The provision of see. 32, of oh. 32A of the Code, permitting the prosecuting attorno}' of any county, or the State commissioner of prohibition, to elect whether a justice of the peace before whom a person is arraigned on a charge of having violated a provision of that chapter, the prohibition act, the first time, shall hear and determine the charge, or merely put the accused op his preliminary examination, and, on proof of probable cause, require him to give a recognizance for his appearance to answer an indictment, or commit hyn to jail in default thereof, is constitutional and valid, (p. 113).</p> <p>2. Same — Jurisdiction of Justice of the Peace — Validity of Prohibition Act — Constitutional Provisions.</p> <p>Sec. 28 of Art. VIII of the Constitution, vesting in justices of the peace such jurisdiction and power in criminal cases, as may be prescribed by law, impliedly authorizes the legislature to give or withhold such jurisdiction, and in the exercise of that plenary power, it validly conferred jurisdiction of first offenses under the prohibtion act upon justices of the peace conditionally, by the enactment of sec. 32 of eh. 32A of the Code. (p. 113).</p> <p>3. Same — Jury—Trial by Jury — Legislative Poxoer — Prohibition Act.</p> <p>Said provision does not encroach upon or impair the right of trial by jury, nor discriminate in favor of the state and against tlic accused, in such manner or to such an extent as to make it conflict with any constitutional limitation upon the legislative power, (p.).</p> <p>4. SAMS — Jurisdiction of Justice of the Peace — Prohibition Act— Validity.</p> <p>■ The provision of soc. 10 of oh. 32A of the Code, authorising' a justice of the peace, on such an examination and finding- of probable cause, to require two recognisances of the accused, one to answer an indictment and the other not to violate any provision of the chapter, in the meantime, and to commit him to jail for failure to xg'ivo either or both of such recognisances, is valid and 'constitutional, (p. 11.'!).</p> <p>5. Jury — llight to Jury Trial — Constitutional Provisions.</p> <p>Sec. 10 of Art. HI' of the Constitution does not inhibit imprisonment, without a trial by jury, to await an indictment, or for trial on an indictment or other accusation, or failure to give security for good behavior. The inhibition thereof extends only to imprisonment as a legal consequence of a conviction of a crime, (p. 114).</p> <p>0. Bail — Criminal Law — “H-rccssivc Bail” — "Cruel or Unusual Punishment. ’ ’</p> <p>A statutory penalty of $500.00 in a bond with condition not to violate a criminal' law, pending a prospective grand jury inquest as to probable cause to believe the party of whom such bond is required has already violated such law, is not excessive within the moaning of soc. 5 of Art. HI of the Constitution, inhibiting the requirement of excessive bail. Nor is imprisonment for failure to give such a bond an infliction of cruel or unusual punishment within the meaning ol: said section, (p. 115).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by Barbour, Stedman & .Co. against W. H. Tompkins, the Charleston-Dunbar Natural Gas Company, and the Vespertine Oil &'Gas Company, and others, in which George E. Price, special commissioner to sell the land to satisfy liens, petitioned for an adjudication of the rights of the parties to the lease. Decree for Tompkins, and the Charleston-Dunbar¡ Natural Gas Company and the Vespertine Qil & Gas Com-| pany appeal.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Proceeding by Margaret Dunn for the probate of the will of Mrs. Jennie Prindle, deceased, opposed by E. S. Prindle. From a judgment of the circuit court against the proponent on appeal from the probate court’s denial of probate, she appeals.</p>

<p>1. Bankruptcy — Preference—Avoidance.</p> <p>Where an insolvent debtor conveys to one of his creditors a I part of his estate in consideration of a debt which he owes to [ such creditor, and for a present consideration paid in money, and I such debtor is subsequently, within four months, adjudicated a I bankrupt, and such creditor at the time of such cqnveyanee knew,] or had reason to believe that such transfer would result in giving] him a preference over other creditors of the bankrupt of the same] class, such conveyance will be held void at the suit of the trustee] in bankruptcy, except to the extent that there was a present eon-J sideration paid therefor, (p. 131).</p> <p>2. Same — Preference—Avoidance—Lien.</p> <p>In such case the conveyance or transfer will be held to create] a lien upon the property to secure the present consideration paid] therefor, and the property turned over to the bankruptcy court toT be administered therein, (p. 131).</p>

<p>1. Executors and Administrators — Distribution—Equitable Jurisdiction.</p> <p>Equity lias jurisdiction of a bill to compel distribution .of funds in the hands of the administrator of a decedent, brought by the executor, legatees and distributees of a testatrix, against said administrator and others claiming as heirs of the testatrix, pending a suit to contest her will, alleging that the testatrix was sole heir and distributee of the estate in the hands of such administrator; that her executor, acting under authority conferred by the will, her legatees and distributees made an agreement, compromising-said suit and apportioning her estate among such legatees and distributees; and that said administrator declines and refuses to account and turn over to plaintiffs said fund because of adverse claimants thereto, (p. 139).</p> <p>2. Equity — Executors and Administrators — Bill to Compel Distribution — Multifariousness—Joinder of Parties.</p> <p>Such bill is not multifarious, nor does it improperly join as defendants adverse claimants to the estate of testatrix, (p. 140).</p> <p>3. Executors and Administrators — Bill to Compel Distribution— Determination as Between Adverse Claimants.</p> <p>As an incident to such suit, the court has power to determine and adjudicate between the conflicting claimants as to who are the heirs and distributees of testatrix’s estate, (p. 140).</p>

<p>]. CORPORATIONS — Foreign Corporations — “Doing Business ini the State.”</p> <p>A foreign private corporation, maintaining no office or agency in this State, which transports its products to market in its own barges and by means of its own steamboats along the Ohio River from Pittsburg to Cincinnati, Louisville and other points, not in this State, is not thereby doing business in West Virginia, within the moaning of chapter 124 of the Code relating to service of process. (p. 147).</p> <p>2. Same — Foreign Corporations — “Agent” to Accept Brocees— Captain of Steamboat.</p> <p>Nor is the captain of one of its steamboats, temporarily taking refuge along the West Virginia shores from the perils of navigation caused by floating ice in the river, an agent of such corporation within tlio meaning of 'any of the statutes of this State authorizing service of process or notice on the agent of a foreign corporation, Ip. 147).</p> <p>.1. .IrixanoNT — Ailachnunt—Opening Default — 'Right to Make Defense — Statute.</p> <p>A party, including a non-resident corporation, against whom an attachment has issued, on order of publication, and against whose property, levied on thereunder, judgment has been rendered, who has made no appearance to the aetion, has an absolute right by virtue of See. 25, Ch. 106, Code, within the time therein designated, on giving security for the costs that have accrued and may thereafter accrue, to have the ease reopened, and to be permitted to make defense thereto, unless he has been served with a copy of the attachment or with process in the suit more than sixty days before the date of the judgment. (p. 147).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the Allen & "Wheeler Company against John S. Farr. Verdict for plaintiff was set aside, and a new trial awarded, and plaintiff excepts and brings error.</p>

<p>1. Municipal CORPORATIONS — Curb Boxes — ,-Nuisance—Question for Jury.</p> <p>Though curb boxes, when in proper repair and located on the outside of a sidewalk in a city or municipality, do not por se constitute nuisances, they may nevertheless become so because of their defective condition and situation therein, and whether they are or not usually presents a question of fact for the jury and not of law for the court., (p. 156).</p> <p>2. Same — Defeat in Sidewalk — Negligence—Question for Jury.</p> <p>Whether such a curb box, so located'in a sidewalk, and behind a water plug, and hidden from view thereby to a pedestrian, and projecting above the surface of the walk by reason of a depression therein, rendered the walk at that point not reasonably safe for such pedestrians, and constituted actionable negligence upon the part of a municipality, presented a question of fact properly submitted to the jury. (p. 157). ■</p> <p>3. Same — Defeat in, Street — Contributory Negligence — Question for Jury.</p> <p>Generally, one traversing the streets or sidewalks of a municipality'has the right to assume that they are in a reasonably safe condition for travel by day and by night, and though defeets therein are plainly to bo seen, nevertheless, whore one has his attention diverted and for good reasons does not see such defeets therein, and sustains personal injuries therefrom, the question of his contributory negligence is one for the jury depending on all the facts and circumstances in the case. (p. 158).</p> <p>(POFFENBARGER, JODGE, dissenting).</p>

Bastardy proceeding by Elsie Burr against Burl Phares. Verdict of guilty was set aside and a new trial awarded, and plaintiff brings error.

<p>1. Equity — Pleading—Pecuniary Evidence.</p> <p>Generally, it is not necessary to exhibit documentary evidence with the pleadings in a suit in equity, (p. 167).</p> <p>2. Injunction — Extraction of Gas — Allegations of Sill.</p> <p>An owner of gas in a tract of land whose title is so clear, as a matter of law, as to preclude the necessity of resort to a jury trial for determination thereof, or his lessee, may enjoin the extraction of the gas, by one who has no right to it, and, if the bill sets out such a title, it need not allege pendency of an action at law to try the question of title, nor intention on the part of the plaintiff to institute such an action, (p. 168).</p> <p>3. Same — Wrongful Extraction of Gas — Pleadvng.</p> <p>An allegation of a bill filed for such purpose, that a deed upon which the plaintiff relies for title in himself conveys all the coal and other minerals in, under and.upon the tract of land on which the defendant is operating the well sought to he enjoined, is an allegation of the legal effect of the deed, not a statement of the terms thereof, and asserts' a conveyance of absolute title to the gas. (p. 168).</p> <p>4. Samf — Title to Mavntam Suit.</p> <p>Applicability of the rule or principle that a question of title to real estate, proper fox jury inquiry and determination, cannot be tried and determined in' a suit in equity to enjoin a trespass upon the land in question, need not be disclosed by the bill, nor can the rule always be invoked by a demurrer. Such defense may bo disclosed by an answer and it defeats the jurisdiction in equity, as to the title, at whatever stage of the suit it appears, (p. 169).</p> <p>5. Appeal and Error — Judicial Discretion — Injunction.</p> <p>If the defendant in a bill to enjoin a trespass to real estate, upon which such an injunction has been awarded, without proof of the allegations of the bill'and without notice of the application to the defendant, instead of moving a dissolution of the injunction for alleged defectiveness .of the bill or on an answer denying the allegations, has demurred to the bill and procured an erroneous dismissal thereof, the appellate court, on the reversal of the decree, will not enter upon an inquiry as to whether the award of the injunction was, under the circumstances, the exercise of a sound judicial discretion, for the trial’ court has had no fair opportunity to pass upon tho question, (p. 170).</p>

<p>Habeas corpus by Ballard L. Anderson.</p>

<p>1. Appeal and Error — Partnership—Suit Between Partners — 'Erroneous Decree — Owe.</p> <p>In a suit by one of two partners against the other to reeoyer half the cost of the equipment for the joint enterprise, furnished and installed by plaintiff, under an agreement that defendant should reimburse him to the extent of one-half the cost, it is error to render a personal decree allowing such recovery, before ascertainment of the property and liabilities of the firm and a final settlement of its accounts. Nor is the error cured by the subsequent appointment in the same decree of a receiver with authority to convert the social assets into money and apply the proceeds to payment of firm obligations, and, a reference to a commissioner to ascertain the debts of the partnership and settle its accounts, (p. 17S).</p> <p>2. Same — Objections—Deference.</p> <p>Objection, on the ground of prematurity, to a reference of the cause to a commissioner for a settlement of the partnership ae-counts comes too late when made for the first time in the appellate court, after the parties, without protest, have appeared and introduced their evidence before the commissioner and the lower court has approved his findings, excepted to only on other grounds, by a decree upon the merits, (p. 178).</p>

. Error to Circuit Court, Tucker County. W. A. Jones, a justice of the peace, was indicted for malfeasance, misfeasance, and neglect of official duty. From a judgment ousting him from office, he brings error.

<p>1. Court Commissioners — Suit Against — Consent of Cowt.</p> <p>Ordinarily an officer oí a court cannot be sued without the consent of the court appointing him, but where a suit is brought • against such officer in the court of his appointment and is regularly proceeded with in such court to final judgment or decree without interference by such court, it will be taken to have eon-, sented thereto, (p. 189).</p> <p>2. Receivers — 'Receiver of Federal Court — SvÁt in State Court.</p> <p>Á. receiver appointed by a federal district court, when properly authorized thereto by the court appointing him, may maintain a suit in the courts of this state to vindicate a property right of the estate committed to his care. (pi. 188).</p> <p>3. Court Commissioners — Payment of Funds — Duties—Liability of Surety for Breach.</p> <p>It is a part of the duty of a special commissioner of a circuit court to pay out funds coming into his hands as directed by the court appointing him, and his failure to do so is a breach of the condition that ho will faithfully perform his duties contained in his official bond for which the surety therein is liable, (p. 189).</p> <p>4. Same — Action Against Surety on Bond — Estoppel to Deny Official Character of Principal.</p> <p>The surety in the official bond of a special commissioner appointed by a circuit court is estopped to deny the official character of his principal, (p. 189).</p> <p>5. Same — Action Against Surety on Bond — Jurisdiction.</p> <p>Neither can such surety question the jurisdiction of the court to appoint such special commissioner, (p. 139).</p> <p>6. Judicial Sales — Sale Without Jurisdiction — Return of Purchase Money.</p> <p>Where a court of equity makes a sale of real estate in a cause in which it is without jurisdiction, it will, upon ascertaining that such sale is void, return to the purchaser so much of the purchase money as remains in the possession of its officer, and. as far as possible restore the status quo existing at the time of the institution of such suit. (p. 191).</p> <p>7. Court Commissioners — Suit on Official Pond — Failure to Return Money.</p> <p>If, in such case, the special commissioner who collected such purchase money fail to return the same to the purchaser upon being' required so to do, such purchaser may recover the same in a suit upon the official bond of such special commissioner, (p. 191).</p> <p>8. ’ Same — Payment of Money — Liability for Preach of Duty — Interest.</p> <p>Where an officer of a court fails to pay out money in his hands when ordered to do so by the court appointing him, ho is chargeable. with interest thereon from the time he is directed to make such disbursment until the same is actually paid.</p>

<p>1. Criminal Law — Might of Appeal — Meeognisanee.</p> <p>A person convicted of crime by a justice of the peace is entitled, as matter of right, to an appeal without giving bond or entering into a recognizance, provided ho applies therefor within a reasonable time after conviction, (p. 195).</p> <p>2. Same — Might of Appeal — Delay.'</p> <p>A justice of the peace can 'not defeat the right of appeal by unreasonable delay in granting it, after application therefor has been duly made. • (p. 195).</p> <p>3. Same — Appeal—Personal' Demand.</p> <p>It is not indispensable that the prisoner should appear before the justice in person to demand an appeal, (p. 195).</p> <p>4. Same — Appeal—Mecognieanee.</p> <p>The recognizance or appeal bond provided for by Sec. 230, Ch. 50, Code, is essential to secure the release of the prisoner, pending the appeal, but it is not a prerequisite to the right of appeal, (p. 196).</p>

<p>1. Mandamus — Removal of Obstructions From Streets.</p> <p>Mandamus lies to compel a municipal' council to remove such obstructions from the streets and alleys of the city, as constitute jjublie nuisances, (p. 199).</p> <p>2. Municipal Cokpokations — Width of Streets —Improvement — Lawn Strips.</p> <p>A municipal council is not obliged to improve for public travel all of the available space set apart for a street or avenue,, but may improve such part of it as in its judgment will answer the public needs, and may lawfully establish lawn strips between the sidewalk and the pavement, or between the sidewalk and the property line, for grass plots, flower beds and shade trees, (p. 200).</p> <p>3. Same — Streets—Nuisances. ■</p> <p>The construction and- maintenance of a retaining wall and ornamental posts at intervals thereon, between such lawn strip and the sidewalk to prevent the earth from sliding down upon the sidewalk, do not so obstruct public travel on the street as to constitute a jurblie nuisance, (p. 200).</p>

<p>Complaint by the City of Blueheld against the Blueheld Water Works & Improvement Company, hied before the Public Service Commission complaining of the Water Company’s enforcement of certain rules,' consolidated with application by the Blueheld Water Works & Improvement Company to the Public Service Commission for authority to increase its water rates. Petition by the Blueheld Water Works & Improvement Company to suspend final order of Public. Service Commission. /</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Action by the Keystone Manufacturing Company against J. D. Close and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, .Randolph County.</p> <p>Bill by the Clarksburg Casket Company against the Valley Undertaking Company, J. N.- Pharos, and others. Prom a decree disallowing his lien and placing Mm among the general creditors, defendant J. N. Phares appeals.</p>

<p>Prohibition by J. J. Carlton against I. C. Herndon, Judge, and others.</p>

<p>1. Mechanics’ Lien — Lien Against Beatty — Filing of Account.</p> <p>To acquire a valid lien against real estate under §3, ch. 75, Code 1913, the claimant must file with the owner or his authorized agent an itemized account of material furnished a subcontractor, verified by affidavit, and cause the verified account to be served upon the owner within thirty-five days after he ceases to furnish such material, and the account and notice to be admitted to record in the county wherein the real estate is located. Without the concurrence of these essentials, no such lien is acquired, (p. 225).</p> <p>2. Same — Contract—Lien—-Statute.</p> <p>Where upon notice that a contractor has failed to prosecute the construction of a building a surety in the bond of indemnity against such failure procures another contractor who agrees to complete the work for the same sum, payable upon estimates as the work progresses, and otherwise upon the same terms and according to the same plans and specifications as required by the first contract, and together with such surety the owner unites in the new contract, and the owner pays the estimates, accepts the building when completed, ascertains the balance due upon a settlement of accounts, and acknowledges liability for such balance, he thereby subjects the property to liens created pursuant to the provisions of chapter 75, Code 1913, and can not exonerate it therefrom upon the ground that he did not engage the services of the contractor who' completed the building, (p. 226).</p> <p>3. Same — Aacoimt—Deturn.</p> <p>The return of a sheriff or other officer whose acts are of the same dignity, appended to an account such as §3, ’eh. 75, Code 1913, requires to create a lien on real estate, and admitted to record in the proper office of the county wherein the real estate is located, unless impeached for fraud or mistake, is sufficient, without more, to show service upon the owner, (p. 226).</p> <p>4. Same — Verified Account — Service.</p> <p>Service of such verified account, made in any mode provided for in §1, ch. 121, Code, is’ competent, unless assailed for fraud. (p. 226).</p> <p>5. Same — Lien Statement — Itemization.</p> <p>The lien statement of a subcontractor who furnishes material and labor for the construction of a building will not be deemed insufficient for want of itemization under the statute merely because the account is for a lump sum expressly stipulated for in his contract with the principal contractor, (p. 227).</p> <p>6. Same — Account—Time.</p> <p>Where from such an account, considered as a whole, the year in which the material was furnished is ascertainable with reasonable certainty, and the month and day for each item is given, the account will constitute a sufficient compliance with the statute, although the year is omitted opposite or above the. particular items in the account, (p. 229).</p> <p>7. Same — Personal Decree Against Contractor — Assumption of Liability.</p> <p>To warrant a personal decree in a mechanics’ lien suit against the principal contractor for a debt incurred by a subcontractor for materials, it must affirmatively appear that the principal contractor assumed liability therefor in such manner as legally bound him to pay the debt. The mere relation of the parties to the construction contract, without more, does not suffice, (p. 231).</p> <p>8. Equity — Exceptions to Deport of Commissioner — Sufficiency.</p> <p>Where questions of fact are referred to a commissioner, exceptions to his report must point out the errors complained of with reasonable certainty, so' as to direct the mind of the court and the opposite party to them; otherwise the findings are admitted to bo true. (p. 231).</p>

<p>Error to Circuit- Court, Webster County.</p> <p>Action by E. J. Salisbury against Arthur Brooks. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Lost Instruments — Lost Deed — Title—Evidence.</p> <p>To establish title to land under an alleged lost deed, on parol testimony, proof that it existed,- and of its contents, must be clear and conclusive, (p. 240).</p> <p>2. Same.</p> <p>A ease in which, by the application of the foregoing rule, the evidence is held to be insufficient to establish title to the land in controversy in the plaintiff under an alleged lost deed. (p. 242).</p>

<p>1. Criminal Law- — Appeal—Right.</p> <p>One convicted by a justice of a criminal offense is entitled to an appeal from such judgment of conviction within a reasonable time thereafter, (p. 249).</p> <p>2. Same — Appeal—Verdict on Plea of Guilty.</p> <p>Ordinarily an appeal does not lie in a criminal case from a judgment of conviction rendered upon a plea of guilty, (p. 249).</p> <p>3. Same — Acceptance of Plea of Guilty — Understanding of Nature.</p> <p>Before receiving a plea of guilty in a criminal ease, the court should see that it is made by a person of competent intelligence, freely and voluntarily, and with a full understanding of its nature aud effect, and of the facts on which it is founded, (p. 249).</p> <p>4. Same — Plea of Guilty — Appeal.</p> <p>If it is doubtful whether the party accused made such plea of guilty, and it clearly appears that he had no such purpose, and did not know that his actions were being so construed until afterward, when he promptly repudiated the construction given his conduct by the court, an appeal will be allowed to a judgment entered thereon, (p. 249).</p> <p>5. Same — Denial of Appeal — Remedy.</p> <p>In case of the refusal of a justice to grant an appeal from a judgment of conviction rendered by him in a criminal case, the appropriate remedy to secure the same is by petition to the court having jurisdiction to review such judgment, (p. 250).</p> <p>6. Same — Construction of Petition for Review — Application for Appeal.</p> <p>Where a party claiming to be aggrieved by the refusal of a justice of the peace to grant him an appeal from a judgment convicting- him of crime, presents a petition to the tribunal having jurisdiction to review such judgment, alleging all matters showing his right to such appeal, and from which petition it clearly appears that the relief desired is an appeal from such judgment, such petition will be treated as an application for an appeal, even though -it is inappropriately designated by the pleader as a petition for a writ of mandamus, and the eomplain- ' ing party be granted the relief to which, from the allegations of said petition, he appears to be entitled, (p. 250).</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by J. W. Barnett, administrator of Homer L. Keener, deceased, against the Coal & Coke Railway Company, Judgment for defendant upon a directed verdict, motion to set aside verdict and grant a new trial overruled, and plaintiff brings error.,</p>

<p>Conspiracy — Torts—Breach of Contract.</p> <p>Persons having similar, individual contracts with a third person, who conspire together to breach them, and do breach them in pursuance of such conspiracy, whether for personal gain or sinister motives, are liable therefor in an action for tort in the nature of a conspiracy.</p>

<p>Mandamus by the Board of Education of Kanawha District, Fayette County, against J. W. Cavendish, County Superintendent and ex-Officio Financial Secretary.</p>

<p>1. Evidence — Witnesses—Putting in Whole Evidence — Impeachment.</p> <p>Where on a bill for divorce by husband against wife the evidence tends to show a conspiracy inaugurated either by the plaintiff or by another to entrap the defendant and to place her in some situation or under such circumstances as will furnish grounds for charging her with adulterous conduct, and the evidence of any of those engaged therein is relied on by the plaintiff, the defendant is entitled to put in evidence all the facts and circumstances connected with such'conspiracy, not only on the question of her guilt or innocence, but as tending to impeach the testimony of the inculpating witnesses against her. (p. 270).</p> <p>2. Divoeoe — Adultery—Proof.</p> <p>Though circumstantial evidence is admissible and often regarded sufficient to establish the fact of adultery, nevertheless it must be so clear and strong as to. carry conviction of the truth of the charge, and, if it does no more than raise a suspicion of un-chastity, it should be treated as insufficient, (p. 277).</p>

Jess Swain was convicted of grand larceny, and from a judgment of the circuit court of Wood county denying his writ of error to the judgment of the criminal court of that county, he brings error. \

Action by W. S. Barrett against Mary A. Andrew, admin-istratrix. Prom a judgment for defendant upon a directed verdict, on appeal from a justice court, plaintiff brings error.

<p>Error to Circuit Court, Wayne County.</p> <p>Tom Crumbey was convicted of grand larceny, his motion for new trial was overruled, and he brings error.</p>

Suit for injunction by the Amherst Coal Company' against the Prockter Coal Company. Decree for defendant, and from an order dissolving the injunction plaintiff appeals.

<p>Error to Circuit Court, Greenbrier County.</p> <p>Action by the Phenix Fire Insurance Company against tbe Virginia-Western Power Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Suit by D. Bonafede against the Grafton Feed & Storage Company and others. From decree sustaining demurrers to bill, complainant appeals.</p>

Mandamus-by W. B. Belcher, Sheriff and ex officio Treasurer of Wyoming County, against the Bank of Mullens and against the First National Bank of Pineville, depositories of the public, funds of Wyoming county, consolidated -with pe-titioná by the Bank of Wyoming against the same respondents.

Certified by Circuit Court, Roane County. Suit by O. J. Chambers and others against M. J. Perrin©, and others. A demurrer was sustained to the bill and the cause certified.

<p>Appeal and Ekhor — Expert Testimony — Weight.</p> <p>When in a suit contesting a will for the alleged ineompetency of the testator to make a valid will, the proof of the facts and circumstances founded on the personal observations of the witnesses for the proponents is such as to show beyond doubt the competency of the testator, the mere opinion evidence of medical experts upon hypothetical questions, if properly propounded by contestants, is entitled to but little weight, and its rejection will not be good ground for reversing a judgment in accordance with the verdict of the jury,that the instrument in question was in fact the true last will and testament of the testator.</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Suit by Mary B. McGraw and others against William Morgan, trustee, and others. From decree from defendants, the named complainant appeals.</p>

<p>1. Municipal Corporations- —Charter—Building Permit.</p> <p>Under a provision of its charter authorizing it "to regulate the height, construction and inspection” of new buildings erected within its corporate limits, a city cannot prevent the owner of a lot situated in a built up section and between three and four-story buildings, from erecting a one-story building thereon,’ by refusal of permission to erect it. (p. 335).</p> <p>2. Same — Charter Provision — Regulation of Buildings.</p> <p>Properly construed, such charter provision confers authority respecting the height of buildings, only to limit or restrict it for the safety of persons and property, (p. 335).</p> <p>3. Same — Height of Bmldmgs — Police Power — Fire Protection.</p> <p>Prevention of the erection of buildings in a city, lotver than adjacent and neighboring ones, has no such tendency to prevent danger from fire, or the spreading thereof, as will justify or validate it under the police power of the state, (p. 337).</p> <p>4. Same — Use of Property.</p> <p>A limitation upon an owner’s use of his property cannot be imposed by law, for the benefit of other property owners, (p. 337).</p> <p>5. Eminent Domain — Use of Property — Symmetry or Ornamentation.</p> <p>Nor can it be imposed only to effect symmetry or ornamentation of a city, street or section, otherwise than under the power of' eminent domain, allowing compensation, if at all. (p. 337).</p>

<p>'Jl. Courts — Stay of Proceedings — Adjudication by Foreign Court.</p> <p>A proceeding in attachment, coupled with the process of garnishment, sued out in a court of general jurisdiction in another state against a debtor, whose assignee, with knowledge thereof, though not cited to appear therein by publication or personal service of- process, institutes in a court of this state an action to recover the debt involved, assigned to him before the proceeding began in the foreign court, presents the question of the priority of right between the assignee and the attaching creditor of Ills assignor in . such court, and is to be determined by it upon legal principles obtaining in that jurisdiction, the adjudication, of which, as a matter of comity and to avoid conflict of decisions to the detriment of the garnishee, belongs to such court; and the prosecution of the action in this state should be postponed pending such adjudication by the foreign court, (p. 341).</p> <p>:2. Interpleader — Stallholder—Claimants.</p> <p>Though sometimes a stakeholder without fault must diligently require adverse claimants of the fund held by him to interplead, to avoid a liability to each of them, that rule applies generally only when he is threatened by ordinary actions, as debt or assump-sit, without attachment. But when the fund is seized by one of the claimants through judicial process, there is a duty on the part of the other claimant to intervene for his own protection and to prevent impairment of such right as he might have adjudicated therein, (p. 345).</p> <p>•3. Abatement and Revival — Courts—What Constitutes — Stay of Postponement — Adjudication by Foreign Court.</p> <p>While the pendency of a foreign attachment, attended by garnishment, will not abate an action in another court subsequently brought for the same debt, it will, when properly pleaded, effect a stay or postponement of the trial of the second proceeding to await the determination of the foreign attachment, (p. 346).</p> <p>4. Garnishment — Retention of Fund.</p> <p>Where a creditor has by garnishment acquired a lien on a fund or debt payable to another, the garnishee can not lawfully pay it to the plaintiff in a subsequent action, but must retain it in his hands subject to the process served upon him. (p. 341),</p> <p>5. Assignments — Contracts —• Debt — Consideration — Conditions Precedent.</p> <p>The verbal promise of a debtor to pay the assignee of a claim, •upon performance by him of conditions precedent to the maturity of the cause of action, binding upon his assignor, will not, because without consideration, support an action based on such promise. The assignee can not recover the debt assigned, except upon performance of the obligations of Ms assignor, by contract made conditions precedent to the maturity and payment of such debt. (p. 341).</p>

<p>Mines and Minerals — Protection From Drainage of Minerals — Fraud and Collusion — TSmdenoe.</p> <p>In the former opinion herein, 73 W. Va. 215, were' stated the principles governing the rights asserted by the bill, charging fraudulent and collusive failure adequately to test and develop plaintiff's lands for oil and gas and to protect them from drainage of such minerals through wells operated on other lands. Upon this appeal, the evidence adduced upon the final hearing is considered and found insufficient to support the allegations of the bill.</p>

<p>Mandamus by the State of West Virginia, on relation of J. M. Nangle, against the Board of Education of the District of West Union and others.</p>

Suit by Della Huddlestou and others against Rose M. Miller. A demurrer was sustained to the bill and the cause certified.

Action by the Bank of Weston against W. W. Brannon and W. C. Danser. From a judgment of the circuit court, dismissing Danser’s appeal from a judgment of a justice’s court, on motion of his codefendant, Danser brings error.

Elias Moneypenny was convicted of maliciously shooting, cutting, and wounding with intent to maim, disfigure, disable, and kill, and he brings error.

<p>PRINCIPAL and SURETY — ■Action Against Surety — Estoppel.</p> <p>When a creditor (a sheriff in this ease) knows that the surety of his debtor (his deputy in this case) is urging such debtor to make final settlement of his accounts, and later and pursuant to ° correspondence had with debtor and creditor, such final settlement is made, and as evidence thereof the creditor gives the debtor, while solvent, a receipt in full for all charges against him as such deputy, which is then .delivered by the debtor to his surety as ' evidence of such final settlement and discharge of his bond, the creditor will, after the lapse of five years or more, and the insolvency of his debtor, be estopped from setting up a different state of facts, and from pursuing such surety on the bond of his debtor for an alleged default of the latter, and for a balance alleged to be due him because of mutual mistakes in their settlements.</p>

Bill in equity for discovery and accounting by W. C. Campbell and others against Lucy J. Lynch and others. Decree for-defendants, and plaintiffs appeal.

<p>1. Dedication — ¡Street—Right to Grade — Abutting Owners.</p> <p>A dedication of a strip of land in a new addition to a city or town, for a- street, impliedly confers right npon the city or town authorities, to grade the land so dedicated, to such an extent as to make it safe and convenient for general public use as a highway; and, though grading thereof may impair the dedicator’s right of ingress and egress to and from a lot abutting on such street, ho has no right of action for such injury, (p. 396).</p> <p>2. Same — Street—Grading—Impairment of Access.</p> <p>If the natural surface of land dedicated for a street is so rough, sidling or uneven as not to be reasonably suitable for use as a highway, actual use thereof in such condition, by the general public, for a long period of time, does not constitute establishment of the natural surface as the grade line of the street, and the municipal authorities may put the street in condition for reasonably safe and convenient use, by grading, without liability for incidental impairment of access to an abutting lot. (p. .396).</p>

' Suit by S. J. Johnson and others against G. B. Armstrong and others, together with suit by the Pentress Gas Company against the Monongahela Natural Gas Company and others. From decrees for complainants, the Monongahela Natural Gas Company and another appeal.

<p>Error to Circuit Court, Harrison County.</p> <p>Lloyd Duff was convicted of the unlawful carriage of intoxicating liquor for other persons, and he brings error.</p>

<p>1. Judsment — Conclusiveness—Matters Which Might Save Been Litigated.</p> <p>An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the'legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in the former litigation, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits, (p. 416).</p> <p>2. Partition — Tenants in Common — Improvements.</p> <p>The fact that a co-tenant has located upon a particular portion of the land of the co-tenancy, and has enhanced its value by making improvements is a circumstance always deemed worthy of consideration by a court charged with the duty of making partition; and if in making such partition the part so improved can be assigned to the co-tenant making the ■ improvement without doing injustice to the other co-tenant, such assignment will be made. It is the duty of the court making such a partition to cause the improvements to be assigned to the respective parties who make them, so far as it can be done consistently with an equitable partition of the estate, (p. 418).</p> <p>3'. Same — Tenancy in Common — Mnjovnmg Waste — Division.</p> <p>Ordinarily a court of equity will take jurisdiction at the suit of one co-tenant to enjoin waste being committed on the joint estate by the other co-tenant, by the removal of coal therefrom, but where it appears that the mining operations are of such character that the land from which the coal is taken may, consistently with an equitable partition of said land, be assigned to the co-tenant mining the coal therefrom, and it also appears that great damage would result from enjoining the operation of such mines, a court of equity will refuse such relief, and in partitioning the land will assign the part from which coal has been mined to the co-tenant who removed the coal therefrom, (p. 419).</p>

Suit by William W. Downey, administrator d. b. n. c. t. a. of George P. Blessing, deceased, against Cora Kearney and another, executrices of Minerva Blessing, deceased. Demurrer to bill sustained, and question certified.

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by the National Coal Company against J. W. Overholt and others. Decree for defendants, and plaintiff appeals.</p>

<p>Courts^ — Certification—Statute.</p> <p>The sufficiency of a bill for an injunction, no plea competent to "put that question in issue having been previously filed or disposed of by the circuit court, can not, under section 1, of chapter 135, of the Code, be properly certified to this court by the judge of the circuit court, based alone on his vacation order awarding the temporary injunction prayed for.</p> <p>(Popfenbarger, Judge, concurring).</p>

<p>Error to Circuit Court, Payette County.</p> <p>Lillian Tincher was convicted of the unlawful sale of liquors at her residence and she brings error.</p>

<p>1. Parent and Child — Custody and Control — Earnings of Child— Modification by Statute.</p> <p>The common law right of a father to the custody and control of his minor child, and, unless sooner manumitted by him, to demand and receive the benefit of its earnings in any employment during, minority, .and compensation for the impairment or deprivation of the earning capacity of such minor, obtains in this, state except in so far as the legislature, in the exercise of the power impliedly conferred by the constitution, has abrogated or modified such right, (p. 452).</p> <p>2. Master and Servant — Right to Child’s Earnings — Workmen’s-Compensation Act.</p> <p>By the exertion of such power, the legislature has, by chapter 15P, Code 1916, known as the Workmen’s Compensation Act, substituted a mode of compensation for such deprivation or impairment different from and in lieu of the common law right of redress therefor. • (p. 452).</p> <p>3., Same — Earnings of Child — Workmen’s Compensation Act — Knowledge and Assent.'</p> <p>The appropriateness and applicability, of that act, and the substituted compensation aforesaid, in lieu of a recovery in such common law action for an injury sustained by a minor while in the service of another, resulting in deprivation or'impairment of his earning capacity, do not depend upon the knowledge by the parent of the employment or his consent or want of consent v thereto, (p. 453).</p> <p>-S. Same — Workman’s Compensation Act — Employment of Minors.</p> <p>Sections 9, 22 and 23 of the act aforesaid, when read together ••■and properly construed, show (section 9) that minors lawfully may Ibe employed in any business, industry or occupation except when prohibited by sections 24, .59, 71 and 72 of chapter 15H or section 16d4 of chapter 144, Code; and (sections 22 and 23) that when the employer has in the manner therein required given the notice likewise required, and the employee, though an infant, thereafter .continues in the employment, the continuation and notice combined operate as a waiver of any common law right of action for redress the parent or minor might have had but for such statute, (p. 455).</p> <p>■5. Same — Services and Earnings of Child — Parent’s Knowledge or Consent.</p> <p>When not expressly or impliedly prohibited by statute, the employment of a minor in any legitimate business or occupation is not unlawful merely for want of knowledge or consent by the , parent or guardian, (p. 455).</p>

Application byAhe Baltimore & Ohio Railroad Company for the annulment or suspension of orders of the Public Service Commission requiring applicant to desist from its practice, as to distribution of cars for interstate coal shipments.

<p>Case certified from Circuit Court, Raleigh County.</p> <p>Bill by the County Court of Raleigh County against C. V. Cottle and others. Demurrer to bill sustained, and case certified.</p>

Case Certified from Circuit Court, Cabell County. Action of LI. L. McCoy and others against H. E. Love. Demurrer and special plea filed, and questions certified by the Circuit Court.

Question Certified from Circuit Court, Tyler County. Suit by Anna Messer against Walter Reitz, executor, etc., and others. Demurrer to bill overruled, and question of the sufficiency of the bill as against the demurrer certified.

Certified Case from Circuit Court, Randolph County. Suit by Georgia E. Gulland against Grace Gulland and others. Demurrer to part of bill sustained, and bill dismissed as to such part, and questions certified.

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Mike Sudnick against Sigmond Kohn. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Morgan Hess against Patsy Marinari and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded for a new trial.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Harold Preston against A. C. Hufford and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Criminal 1aw — Homicide—Instruction—Degree—Evidence.</p> <p>In a trial for murder, where the uncontradieted evidence proves there was no combat between defendant and deceased but only angry words when defendant shot and killed deceased, an instruction to the jury, stating, in effect, that where a homicide is proven, the presumption is that it is murder in the second degree, and if the State would elevate the crime, the burden is on it to show that it was murder in the first degree, 'and on the defendant to show it was without malice and, therefore, only manslaughter, or that he acted lawfully, and that, in arriving at a verdict, "as to the degree of guilt, if any, the jury should take into consideration all the evidence, both for the State and defense,” was properly given, (p. 518).</p> <p>2. Same — Trial—Instruction.</p> <p>An instruction, not binding, correctly stating- the law upon one theory of the case, is not erroneous because it does not give the law applicable to some other phase of the ease. (p. 519).</p> <p>3. Homicide — Malice—Manslaughter—•' ‘Provocation. ’ ’</p> <p>Where a homicide has been committed with a deadly weapon, proof of mere words, however insulting or opprobrious, is not sufficient provocation to purge the crime of malice and reduce it to manslaughter, (p. 519).</p> <p>4. Same — Evidence—Verdict.</p> <p>A case in which the only verdict, warranted by the evidence, is one of acquittal, or one of guilty of murder either in the first or second degree, (p. 519).</p> <p>5. Witnesses — Cross-Examination—Other Offenses — Impeachment.</p> <p>A defendant testifying in his own behalf, is protected, on his cross-examination, ,jy the sane rnFs and principles respecting the admissibility of evidence, that apply to other witnesses; and it is improper to require him to answer the question, whether he had not been convicted of another offense, having no semblance to, or connection with the crime for which he was being tried, for the purpose of impeaching his testimony, (p. 520).</p> <p>6. Criminal Law — Harmless Error — Admission of Evidence.</p> <p>Admission of illegal testimony presumptively prejudices the party against whom it is admitted, and is cause for reversal, unless it is apparent the jury’s verdict could not have been influenced by it. (p. 521).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>David Snider was convicted' of murder in the second degree, and he brings error.</p>

<p>• Original habeas corpus by Charles W. Coon against M. Z. White, Warden, etc.</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Suit by Nelson C. Hubbard against Lucy M. George and others. Decree for defendant and plaintiff appeals.</p>

<p>Appeal and Error — Reversal of Decree of Sale and Confirmation —Title of Purchaser.-</p> <p>If when land is sold and the sale confirmed in a judicial proceeding- to -vacate a former sale by the owner made to defraud creditors, in which cause persons having substantial pecuniary interest in the land and the right to charge it as trust property subject, to the lien of a decree against such former owner assigned to them by the receiver of an insolvent state bank of which they were stockholders and creditors, were not parties plaintiff or defendant, wherefore and for other reasons the decree of sale and confirmation were reversed, upon appeal, the title of the purchaser is not protected by see. 8, ch. 132, Code, but falls witb the reversal.</p>

<p>1. Trial — Withdrawal and Substitution of Instructions — Meversible Error.</p> <p>The withdrawal of correct and proper instructions after submission of a caso to a jury whoso members entertain conflicting opinions upon controverted facts as to which litigant is entitled to a verdict and the substitution of instructions based upon a different and erroneous theory plainly is prejudicial and reversible error. (p. 550).</p> <p>2. Arrest — Warrant—Power of Conductor.</p> <p>A conductor as a conservator of the peace has authority, under see. 31, Ch. 145, Code, to arrest without a warrant and eject from a ear or train of cars conveying passengers any person, whether a passenger or not, who in his presence and the presence of other passengers and the public then assembled contends with angry words to the disturbance of the public peace and tranquility. And an instruction that tells the jury a conductor has no such right is erroneous. (p. 551).</p> <p>3. Breach op the Peace — Definition.</p> <p>The phrase “breach of the peace” is generic and includes every act of violence which tends to disturb that sense of security which every person feels necessary to his comfort and to secure which government is instituted and maintained, (p. 553).</p>

<p>• Error to Circuit Court, McDowell County.</p> <p>Action of assumpsit by D. D. Cox & Co. against the Carter Coal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Contracts — Consideration.</p> <p>Return of a life insurance policy by the agent of the insurer at the request of the insured and surrender of his check drawn to the agent's order for the first annual premium, is no consideration for the insured’s promise to pay such agent a certain sum of money in lieu of commissions, to which he would have been entitled from his principal, if the policy had been consummated, and creates no legal liability.</p>

<p>1.- Corporations — Gift of Assets — Ultra Vires Aet.</p> <p>A corporation, owning a patent right for a certain kind of furnace for making steel castings and holding' a portion of the capital stock of another corporation, issued to it in consideration of the right to use such patent and its agreement to pay certain royalties on its products, has a right tb sell such stock and turn the proceeds' over to the operating company, to relieve it of financial embarrassment, with the understanding that such proceeds shall be accounted for upon a satisfactory basis, thereafter to be determined. Such transaction is not a gift of the company’s assets nor an ultra vires act. (p. 563).</p> <p>2. Same — Sale of Assets — Resolution—Ratification.</p> <p>A stockholders’ resolution authorizing a sale of part of a corporation’s assets and a certain disposition to be made of the funds, passed at a meeting at which all were not present and of which some did not have notice, is ratified by the subsequent action of the stockholders at a meeting of which due notice was given, rejecting a resolution offered requesting the directors to institute suit for the recovery of the assets or their value (p. 563).</p> <p>3. Same — Sale of Property — Purchase by Director.</p> <p>A director violates no official duty and is guilty of no fraud, in purchasing the property of his corporation pursuant to a stockholders’ resolution fixing the price at which it should be sold, (p. 566).</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Action by T. J. Linton against. F. P. Johnson and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Costs — Award on Dismissal of Defendant — Statute.</p> <p>On the voluntary dismissal or discontinuance by plaintiff of his suit against one only of several defendants, who has appeared and demurred and his demurrer has been overruled, the court has no jurisdiction to award such dismissed defendant in addition to actual costs incurred by him a judgment or decree for the statutory fee of $20.00, given by section 13 of chapter 138, Code. In such cases the judgment or decree should be for such actual costs and in addition thereto $5'.00, as upon a non suit, and as provided by section 6, of chapter 125, of the Code. (p. 576).</p> <p>2. Prohibition — Judgment for Costs.</p> <p>A judgment or decree in favor of such dismissed defendant for such statutory fee of $20.00 is illegal and void, and the enforcement thereof as to such statutory fee may be restrained by writ of prohibition, (p. 577).</p>

<p>Action by the Bank of Greenville against S. T. Lowry & Co. and others. Judgment for plaintiff, and defendant S. T. Lowry brings error.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by Samuel Starcher, as administrator of Oliver Norman, deceased, against South Penn Oil Company and United Fuel Gas Company. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Municipal CORPORATIONS — Chango of Grade — Damages to Abut- ' ting Property — Amount. •</p> <p>If a street be opened upon the natural surface as a grade line and dedicated to public use and be so used, though the dedication be not accepted otherwise than by recognition and acquiescence and the owner of a lot abutting thereon build with reference to such grade knowing that public convenience and necessity may require it to be altered and it is altered whereby the value of the lot is depreciated] the municipality is liable for the injury to the lot only as if it were unimproved, (p. 611).</p> <p>2. Same — Change of Grade — Recovery—Constitutional Provisions.</p> <p>If property be improved to conform with a recognized surface grade line, alterations' therefrom whether done negligently or not entitle the owner, if not at fault, to recover for the injury thereby occasioned under section 9, Art. III., Constitution, -(p. 611).</p> <p>3. Same — Change of Grade — Action for Damages — Waiver.</p> <p>Joining in a petition requesting the paving of a public street does not operate as a waiver of the right to prosecute an action for the injrrry done to the property, (p. 614).</p> <p>4. Same — Municipal Action — Vote of Coxmcil.</p> <p>Ordinarily a municipality acts only through its assembled council whose will can be expressed only by a vote embodied in some distinct and definite form. (p. 609).</p> <p>5. Same — Street Grade — Representation of Unauthorized Agent— Effect.</p> <p>The representations of an unauthorized agent as to street grades not formally or definitely established does not bind the municipality. (p. 609).</p> <p>6. Same — Change of Grade — Improvement—Recovery.</p> <p>Though the owner of a lot abutting on a street with a natural surface grade line may ordinarily be entitled to damages for an injury to the lot occasioned by an alteration of the grade, he cannot recover for improvements thereon made with knowledge of the necessity for such alteration, p. 611).</p>

Suit for injunction by the Horse Creek Land & Mining Company and others against John A. Midkiff and others. Decree for complainants, and defendants appeal.

Appeals from Circuit Court, Wood County. Suits by Albertine Andre against George Hoffman and others. Decree for defendants in one suit, and plaintiff appeals, and decree for plaintiff in the other, and defendant Buckeye Savings & Loan Company appeals.

<p>Error to Circuit Court, Wood County.</p> <p>Action by Charles S. Cain against the Kanawha Traction & Electric Company. Judgment for plaintiff, and from the award of a new trial, he brings error.</p>

<p>Appeal from Circuit Court, Ritchie County.</p> <p>Suit by J. E. Overton, administrator of the estate of R. B. Cuthbert,. opposed by Vida May Heckathorn and others and James A. Cuthbert and others. From the decree, Vida May Heckathorn and others appeal.</p>

<p>’ 1. Bankruptcy — Sale—Lien—Dower in Surplus.</p> <p>In an involuntary bankruptcy proceeding the wife of the bankrupt, who had previously joined her husband in the execution of a trust deed lien on his land and who was also a creditor of the general class, appeared before the referee at a convention of the creditors and orally stated that she was willing for the land to be sold free of her dower right, “and that she receive a gross sum to be determined according to law out of the purchase price- of said real^ estate in full payment and satisfaction for her said contingent right, of dower ’ ’; and the land was ordered sold and was accordingly advertised and sold free of her dower right, but no provision was made for the payment of any gross sum in'lieu of dower and none was in fact paid to her, and after discharging the lien, all the residue of the purchase money was applied on the bankrupt’s debts. After the bankrupt’s death his widow brought this suit to recover commuted dower in the surplus proceeds of sale, held:</p> <p>She is entitled to dower in said surplus, which may be enforced as a lien against the land in the hands of any subsequent holder. (P- 617).</p> <p>2. Same — Dower—Decree of BamJcruptcy Court.</p> <p>The decree of the bankruptcy court is not an adjudication, of her dower right, the same not having been made an issue by any pleading, (p. 618)).</p> <p>3.- Dower — Enforcement—Estoppel.</p> <p>. Her consent to .a sale of the land free from her dower right being conditional and. the condition never having been complied with, and no provision having been made for her protection,' she'is not éstop'ped to 'assert''her dower as a lien against'the land'. ’ (p. 648).</p> <p>4. Bankruptcy — Consent to Bankruptcy Sale — Record—Notice to Bn/rchaser.</p> <p>Her conditional consent being a matter of record, it was incumbent on the purchaser to see that the condition, if possible of performance, was complied with, or that she was otherwise protected, before payment and distribution of the purchase money, (p. 648).</p> <p>(Ritz, Judge, dissenting).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by James A. Strother, administrator, etc., against tbe United States Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Insurance — Action for Breach of Loan Agreements — Declaration.</p> <p>In an action on a policy of life insurance, for damages occasioned by a breach of an agreement therein made for a loan of money by the insurer to the insured, the short declaration or count contemplated by sec. 61 of eh. 125 of the Code is applicable and may be used. (p. 665).</p> <p>2. Same — Action for Breach of Loan Agreement — Count—Bill of . Particulars.</p> <p>In such case, a count charging a breach of the stipulation in general terms and a bill of particulars, itemizing the damage» claimed, sufficiently state the grounds of the action, (p. 665).</p> <p>3. Appeal and Error — Writ of Inquiry — Delay.</p> <p>Mere delay in the execution of a writ of inquiry, in an action in which the issues were finally made up and tried, is not available as ground of error, p. 66S).</p> <p>4. Insurance — Life Insurance — Agreement to Malee ■ Loans — Construction.</p> <p>An agreement in a life insurance policy to make loans on it, at a specified rate of interest, payable in advance, of stipulated sum» of money, upon the due assignment of the policy to the insurer, as collateral security for the loans, contemplated continuance of such loans, at the option of the borrower, by payment of the interest thereon in advance, until maturity of the policy, provided it is-kept alive by payment of the premiums thereon as they become due and payable; and the borrower is entitled to a provision in the-loan agreement made under the clause, conferring the right of renewal by such payment of interest, for such time as he keeps the policy alive, within the period required for maturity, (p. 668).</p> <p>5. Same — Life Insurance — Loan Agreement — Provision for Benewal..</p> <p>Such provision may be made by the execution of a paper separate and distinct from that evidencing the loan, and, if such separate paper is offered, the insured is not justified in declining the loan merely because the stipulation is not inserted in the latter instrument, (p. 668).</p> <p>6. Same — Life Insurance — Loan Provision — Cancellatidn of Policy —Notice.</p> <p>Under such a provision in the policy, the insured is entitled to reasonable notice of intention to cancel the policy for default in payment of the loan and an opportunity to save his policy by payment after such default, and refusal to make the loan without a stipulation in the loan agreement for right of cancellation of the policy, without notice, is a breach of the agreement to make it. (p. 66S).</p> <p>7. Same — Life Insurance — Breach of Loan Agreement — Damages.</p> <p>Emphatic refusal of the insurer, in such case, to make the loan stipulated for, otherwise than upon an agreement waiving notice of intention to cancel the policy for default in payment of the loan, excuses the insured from further efforts to obtain it, and his application for it, under an agreement providing for such notice, is sufficient proof of his readiness and willingness to accept it. (p. 668).</p> <p>S. Same.</p> <p>If the insured, after refusal of the loan upon proper terms, borrows the money so stiuplated and applied for from other persons, upon collateral of his own, other than the insurance policy, and at a rate of interest higher than that specified in the loan provision of the policy, but the lowest obtainable, he is entitled to recover the interest so paid, in excess of what he would have had to pay the insurer for the use of the same amount for the same period, under such loan provision, and the reasonable value of his services in procuring the loan, but no compensation for the use of the securities so employed as collateral, (p. 668).</p> <p>9. Trial — Evidence—General Objection.</p> <p>A general objection to evidence partially admissible, is properly overruled. • It should be special, going only to the inadmissible part. (p. 673).</p> <p>19. INSURANCE — Life Inswranee — Loan Provision — Construction—■ Evidence.</p> <p>On an issue as to the proper construction of the loan stipulation above mentioned, provisions of policies subsequently issued by the insurer, defining the conditions upon which it makes loans to its policy-holders, are admissible, as tending to prove the practicability and reasonableness of the insured's interpretation of the stipulation, (p. 673).</p> <p>11. Witnesses — Life Insurance — Loan Provision — Evidence.</p> <p>A local agent of the insurer whose business is the selling of its policies and collection of its premiums may properly be allowed to testify to his personal knowledge of the loan provision of such subsequent policies, and to refresh his memory by reading the same from a manual used by insurance agents, (p. 673).</p> <p>12, Evidence — Action for Breach of Loan Agreement.</p> <p>If, in such case, the insured conducted his' negotiations for a loan tmder the policy, through a local agent of the insured', the correspondence between the agent and his principal is admissible evidence to prove the demand for the loan, even though the fact is established by other evidence, (p. 675).</p>

John, alias “Digger,” Hill pleaded guilty as principal to murder in tbe first degree, and sentence was deferred, and, from the overruling of his motion for leave to withdraw or set aside his plea of guilty and to plead not guilty, he brings error.

Cases certified from Circuit Court, Berkeley County. Separate suits by C. E. Martin, trustee, against J. M. Roth-well and others. Demurrers to the declarations overruled, and cases certified.

Ed Cook was convicted of murder in the first' degree, and from a judgment of the circuit court for Raleigh county, refusing to grant him a writ of error to a judgment of the criminal court of the county, he brings error.

Proceeding on execution by Ida Rockhold against Godfrey L. Cabot and others. Judgment for defendants, quashing the execution, and plaintiff brings error.

<p>1. Payment — Failure to Require Application- — Appropriation.</p> <p>Where a defaulting treasurer of a building association, both being insolvent, pays to the receiver of the latter in partial discharge of the defalcation, part only of which is secured, money acquired long after severing the trust relation, and in which the association had no direct interest, without exercising the right lawfully his to require application of the payment, the mere act of the receiver in depositing- the money in bank to the credit of his account as such does not operate as an appropriation of the payment to any particular item or items of the account in the absence of proof of a statement rendered the treasurer or his personal representative after his death showing the payment and balance remaining unpaid after allowing the payment as a credit therein, (p. 705).</p> <p>‘2. Same — Application—Revocation.</p> <p>Application of a payment once made either by direction of the debtor or in the absence of such direction by the creditor cannot be revoked except with the assent of both. (p. 705).</p> <p>'3. Same — Failure to Malee Application — Equitable Disposition.</p> <p>If, however, there be no such appropriation, the court having control of the fund and jurisdiction of the parties interested will make a just and equitable disposition of the payment, the rights and interests of all parties concerned being considered, (p. 706.).</p> <p>4. Same — Secured and Unsecured Claims — Application.</p> <p>■Whore the defaulting treasurer of an insolvent building association, he also being insolvent, whose indebtedness thereto is se- . cured in part only, does not direct application of a payment and the receiver outers it merely as a general deposit in the bank to the' credit of the account, which does not appear to have been balanced, or if balanced that the treasurer had knowledge thereof, such general deposit does not constitute an application to the discharge of either the secured or unsecured liability, wherefore the court having control of the fund and jurisdiction of the parties interested, will, all interests concerned being considered, apply the payment to the unsecured rather than to the secured indebtedness where it appears that the money paid by the treasurer was out of ■property free from the equities of the sureties and was acquired long aftev lie liad coased to act in behalf of the association, and against which property it then had no valid lien or claim except the mere liability duo to the defalcation, (p. 706).</p> <p>(Miller, Judge, absent).</p>

<p>Error to Circuit Court, Boone County.</p> <p>Action by Emma J. Chambers and others against the Spruce Lighting Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Lincoln County.</p> <p>Suit for injunction by tbe Monarch'Gas Company against Orlando Roy and others. Decree for defendants, dismissing the bill, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Proceeding by the State of West Virginia against John Morris, E. T. Crawford, and others. Decree for plaintiff, and defendants E. T. Crawford and others appeal.</p>

<p>I ntoxicating Liquors — Offenses— -Indictment — Proof.</p> <p>If the accused be indicted and tried for the offense prescribed by section 3, chapter 32A, Barnes Code, 1916, and not of the separate and distinct, offense prescribed by section 31 of said chapter, proof of the possession of intoxicating liquors in violation of the latter section is not conclusive evidence of the guilt of the accused of the offense charged in the indictment. Be-affirming State v. Simo, 77 W. Va. 243. '</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Suit by J. Q. Dickinson against Thomas L. Foster and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Upshur County.</p> <p>Action by John W. McCullough against H. E. Clark. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court-, Wood County.</p> <p>Proceeding by State, for use of Parkersburg Corrugated Paper Company, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to .Circuit Court, Ealeigb County. •</p> <p>Action by Eoxie Halstead against the New Eiver Collieries Company. Judgment for plaintiff on appeal from a judgment of a justice, and defendants bring error.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by Laura M. Smith against B. C. Smith. From a . judgment of committal for contempt of court by reason of the nonpayment of installments of alimony, defendant brings error.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Lloyd "W. Garrett against John Patton. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Benjamin L. Perkins against the Monongahela Valley Traction Company. Judgment for plaintiff, and defendant brings error. ></p>

<p>1. PLEADING — Amendment—Neio Cause of Action.</p> <p>An amended declaration alleging the act of negligence complained of to consist of suddenly and -violently starting the train, after it had stopped and before plaintiff had time to alight, thereby throwing him to the ground and injuring him, instead of, as alleged in the original declaration, failure to stop the train at the station and thereby compelling plaintiff to alight while the train was in motion, does not state a new cause of action, (p 796).</p> <p>2. Carriers — Passengers—Care Bequired.</p> <p>A common carrier is held to the highest degree of care, commensurate with reasonable foresight and judgment, for the safe carrying of its passengers. The slightest degree of negligence causing them injury renders the carrier liable, (p. 798).</p> <p>3. Trial — Injury to Passenger — Instruction—Applicability to Evidence.</p> <p>Where a declaration consists of two counts, each alleging a distinct act of negligence and only one of them is supported by any evidence, it is error to instruct the jury they may find against defendant, if they believe either of said acts is proven. To justify such an instruction there must be some evidence tending to prove both negligent acts. (p. 798).</p> <p>4. Trial — Misleading Instruction.</p> <p>It is likewise error, in such case, to instruct the jury that plaintiff is not entitled to recover "under the first count”, unless he proves by a preponderance of the evidence the negligence therein alleged. Such instruction implies that the jury have the right to find against the defendant on the negligence alleged in the second count notwithstanding it is not supported by evidence, and is, therefore, misleading, (p. 798).</p> <p>5. Negligence — Contributory Negligence — Bxt/rden of Proof.</p> <p>Where the defense is contributory negligence the burden is on defendant to establish it. (p 800).</p> <p>6. Carriers — Injury to Passenger — Contributory Negligence.</p> <p>Generally it is negligence, per se, for a passenger, in full possession of his senses and faculties, to alight from a train while it is in motion, and the failure of a brakeman, who happens to be nearby, to warn a passenger standing on the steps of a car ready to alight, does not excuse such contributory negligence, (p. 800).</p> <p>7. Pleading — Amendment—Original Declaration Considered, Abandoned.</p> <p>Where a demurrer has been sustained to the original declaration, and an amended one filed which makes no reference to it, it is not error to refuse to permit defendant to read to the jury, as evidence of an admission, the original declaration, (p. 802).</p> <p>8. Appeal and Error — Trial—Motion to Exclude Evidence — •Waiver.</p> <p>Where testimony is admitted proving that plaintiff, several, months after his injury, was confined to his bed .for two or three weeks, and there is no testimony showing such confinement to be the natural and direct result of the injury, a motion to exclude it should be sustained. Such motion is not waived by failure to renew it after the taking of evidence is concluded, where the point is saved by.a special bill of exceptions, (p. 802).</p>