Volume 82 — West Virginia Reports

Action by John W. Fleming and others against the Monongahela Railway Company. Verdict and judgment for plaintiffs, and defendant brings error.

<p>Appeal from Circuit Court, Mineral County.</p> <p>Suit by Clara B. Wisner, administratrix, etc., against Clarence E. Wisner and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Easements — Appurtenant Easement of Way.</p> <p>If the owner of an unimproved tract of land through which there is a passable private road made for logging and other purposes and used by him in connection with his ownership of the land, so divide the tract into^several parts as to give access to all of them save one, from a public highway, by means of such road, and as to leave some of them without any other outlet or means of access to and from a highway, otherwise than by procurement thereof through the land of strangers, and contemporaneously grant the several parts to different persons by separate conveyances, each grantee takes his part of the land subject to the use of such road by each of the others as an easement appurtenant to his part, to such an extent as is reasonably necessary to his use and enjoyment thereof, (p. 15).</p> <p>2. Same — Appurtenant Easement of Way — Forfeiture—Obstruction.</p> <p>An improper use of such easement does not forfeit the title thereto, nor justify total obstruction thereof, (p. 15).</p> <p>3. Appeal and Error — Modification of Decree — Easements.</p> <p>A decree enjoining the owner of such servient estate from obstruction of the road in any way and entered upon pleadings and evidence raising no issue as to his right to maintain gates or bars across it, is too broad in its scope and will be modified by the appellate' court so as to limit it to the total obstruction complained of, a fence without gates or bars. (p. 15).</p> <p>it. Costs— -Appeal — Failure to Raise' Question in Lower Court.</p> <p>If, however, the appellant did not aslc for such limitation in the court below, the modification neither gives him right to costs nor denies it to the appellee, (p. 17).</p>

¡Petition by Anna B. Stollings for appointment as adminis-tratrix of tbe estate of Joel Stollings, deceased, in lieu of the appointment of L. D. Stollings previously made by the clerk of the county court. From a judgment of the circuit court, affirming an order of the county court, dismissing the petition, petitioner brings error.

<p>1. Descent and Distribution — Advancement—Presumption.</p> <p>Where a conveyance is made without consideration, or for a more nominal consideration, by a father to one of his children, the :samo is prima facie an advancement; but this presumption may lie overcome by proof of the declarations of the grantor and the at tend tui t circumstances showing a contrary purpose, (p. 26).</p> <p>2. Same — Ilipht to Distribution — Advancement.</p> <p>Where a child has received a certain portion in full of his share of his father’s estate, on the death of liis father, he, his children, and their grantee, are ordinarily barred from further participation in the distribution or partition of the residue of the estate, (p. 26).</p> <p>3. Same — Advancement—Effect—Intent—Proof.</p> <p>Whether an advancement made to a child by a father is a bar to his further participation in the distribution or partition of the residue of the estate depends upon the intent and purpose of the father in making it and the child in receiving it; and where such purpose and intent does not appear from any writing executed by the 'parties, or either of them, the same may be deduced from the prior, contemporaneous or subsequent declarations and statements of the parties, their subsequent conduct in relation to the property, as well as an evident purpose or design on the part of the grantor to provide for his children by the distribution of his estate among them before his death, (p. 29).</p> <p>4. Same — Intent—Evidence.</p> <p>The fact that a child who has received an advancement from his father, with full knowledge of his father’s death and of the estate left by him, makes no claim to be entitled to further participate in the distribution or partition of the residue of the estate for more than twenty years is a circumstance to be considered in determining whether the advancement was received by him in relinquishment of his further right to participate in the estate, (p. 29).</p>

<p>1. Pleading — Amendment—Withdrawal of Original Pleading.</p> <p>Where an amended declaration, complete in itself, does not refer to or in any manner adopt or make the original declaration a part of it, and defendant joins issue thereon, the original declaration will be considered and treated as withdrawn and abandoned, (p. 34).</p> <p>2. Master and Servant — Action for Injury — Sufficiency of Declaration.</p> <p>A declaration which charges that plaintiff, a minor, was coerced by the superintendent and other agents of a coal company to perform a different and more hazardous work than that which ho engaged to do, and was injured in the course of the new form of work, states a cause of action sufficient upon demurrer, (p. 34).</p> <p>3. Samis — Injury to Servant — Complaint—Ignorance of Servant — ■ Coercion.</p> <p>Though ordinarily, to charge a master with liability to a servant for injury sustained by the latter in the execution of an ex-picss direction or command of the former, it is necessary to aver the servant's ignorance of tho dang’er incident to the performance of the act, such averment is not necessary where the declaration avers that plaintiff, a minor, was coerced into obeying such direction or command, (p. 34).</p> <p>4. Sake — Asvmnpiion of Bislc — Knowledge.</p> <p>Whore an employe, whether adult or minor, is transferred by one having authority to a now' branch of employment and the employe accepts tho change voluntarily, with full knowledge of its dangerous character, he is regarded as assuming the risks ordinarily incident thereto, (p. 36).</p> <p>5. Same — Assumption of Pislc — Coercion.</p> <p>Tho doctrine of assumption of risk rests upon voluntary action and if there is coercion by an agent representing the master and acting in his behalf and upon his authority express or implied, the law does not regard the servant as assuming the risk, (pi 36).</p> <p>6. Same — Coercion—Evidence.</p> <p>Where a minor renders obedience to a superior servant, coercion wall be more readily inferred than in the case of an adult under similar circumstances, (p. 36).</p> <p>7. Same — Injury to Servant — “Fellow Servant.”</p> <p>Where a foreman of mine drivers exceeds the authority conferred upon Mm by the master and coerces a minor employe engaged, at work in a different department, loading coal, to undertake the task of driving, a more dangerous and hazardous form of employment, and injury results to the minor in the latter employment,, the foreman is, nevertheless, only a' fellow servant, unless Ms. negligence relates to some non-delegable duty which the • master-owed to the injured servant, (p. 36).</p> <p>8. Same — -“Vice Principal” — llelation.</p> <p>Whether a superior servant, other than a superintendent or general manager, is a vice principal depends upon the nature of his. negligent act, and not upon his grade or rank. (p. 40).</p> <p>9. Same — Injury to Servant — Master’s Liability — Authority of Another Employe.</p> <p>To bind a master for injury to his servant coming from the or- ■ der or direction of an employe, it must appear that the person giving such order or direction had authority from the master to give it. (p. 40).</p> <p>10. Same — Delegation of Master’s Duties — Effect.</p> <p>Where a master delegates to an agent the performance of duties wliieli the master is legally bound to perform for the protection of his servants, the agent occupies the place of the master by representation, and the latter is deemed present and liable for the manner in which the duties are performed, (p. 40).</p> <p>11. Same — Injury to Miner — Duty of Mine Foreman — Master’s Liability.</p> <p>The duty to see that refuge holes along motor roads in coal mines are maintained, as required by section 36d (2), chapter 15H, Code, 1916, rests on the mine foreman, not on the mine owner, and for injury to a minor resulting from defects therein, the master is not liable, (p. 41).</p> <p>12. Pleading — Replication—N ecessity.</p> <p>Where a plaintiff within one year after he becomes twenty-one-years of age brings an action for an injury sustained by him while-a minor and the one year statutory bar is pleaded, he must, to-raise an issue thereon, tender and file a special replication by way-of confession and avoidance; otherwise the plea is taken as true; and defeats recovery, (p. 42).</p> <p>13. Judgment — Validity—Issues—Necessity.</p> <p>It is the established law of this state that a judgment based on trial without joinder of an issue on traversible pleas is erroneous and reversible alone for want of such an issue, (p. 42).</p> <p>14. Evidence — Failure to Produce Evidence — Presumption.</p> <p>If a party to an action has available competent proof to establish a fact necessary and material to his success and fails to produce it, the legal presumption is that if produced the proof .would not sustain his claim for relief, (p. 43).</p>

<p>1. Municipal Corporations — Ordinance—Repeal—Special Election.</p> <p>The charter of the city of Charleston considered and construed to confer on a specified percentage of the qualified voters who petition therefor the right to request the council to repeal an ordinance which theretofore the voters had approved, or submit to them at a special election to be called and held within the time required bj the charter for their ratification or rejection an ordinance repealing a former one specified in the petition, (p. 45).</p> <p>2. Same — Ordinance—Repeal.</p> <p>An express inhibition against tho power of the city council to amend or repeal an ordinance approved by the voters at such an election does not imply an intention also to inhibit the grant of the prayer of a petition in due form and signed by the required percentage of qualified voters to repeal such an ordinance or submit another ordinance repealing it to them for approval at an election called and held as so provided, (p. 45).</p> <p>3. Same — Ordinance—Withdrawal—Amendment.</p> <p>The charter of the city of Charleston, section 92, chapter 1, Acts 19.15, permits the withdrawal of an ordinance proposed by the ■voters as therein prescribed, upon leave of the council, for amendment or additions to make corrections therein to comply with the requirements as to title; such title may be prefixed thereto and the ordinance as amended filed with the clerk without resubmitting it to the voters who signed the original petition, the presumption being that they desired the ordinance xierfected so as to render it valid, (p. 47).</p> <p>4. Same — Ordinance—Withdrawal—“Amend. ’ ’</p> <p>The power to amend an ordinance ordinarily- means more than the power to add names to a petition for the adoption thereof, though the words “amend” and “add to” are associated in a provision for the withdrawal of an ordinance to cure patent defects therein and for corrections as to alleged insufficiency, (p. 47).</p>

Suit for injunction'by J. S. Thurmond and others against the Paragon Colliery Company and others. From' a ■ decree partly dissolving and modifying an injunction, plaintiffs appeal.

<p>Error to Circuit Court, Lewis County.</p> <p>' Assumpsit by M. J. Rush, administrator, etc., against William W. Brannon. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bail — Redognizanccs—Power of Justice — Statute—“Recognizance. ' ’</p> <p>The statutes authorizing justices and other officers to take recog-nieancos of persons charged with crime, for their appearances to answer the charges made against them, do not contemplate the taking of formal "bonds. A recognizance is an aclmowledgment of conditional indebtedness entered of record in a court or certified by an officer authorized to take it. (p. 65).</p> <p>2. Same — Recognizance—Conditions—Validity.</p> <p>A'bond with such condition as would be proper in a recognizance, taken by a justice or other officer empowered to take recognizances, is, however, the legal equivalent of such recorded or certified acknowledgment, (p. 65).</p> <p>3. Same — Recognizance—Transcript—Aclmowledgment and 'Certificate.</p> <p>If a bond so taken by a justice of the peace omits some of the facts essential to the validity'of a recognizance, shown by a transcript from his dp.ckct.and the complaint.and warrant'returned 'or transmitted with the bond, the transcript and all the papers referred to in it, including the bond, constitute a sufficient certificate of a recognizance, the bond being regarded and treated as the equivalent of" an oral acknowledgment of conditional indebtedness, which the law authorizes the justice to take and certify, and the transcript, as the equivalent of a formal certificate he is legally authorized to make and transmit, (p. 65).</p> <p>4. Same — 'Recognisance—Construction—Appearance.</p> <p>In such case, the purpose for which the accused is required by his recognizance, to appear, may be sufficiently disclosed by necessary implication arising from terms used in the certificate so eon-stitued. (p. 67).</p> <p>5. Same — Recognisance—A clcnowledgment — Validity.</p> <p>Formal acknowledgment of such a bond is not essential to the validity of a recognizance so taken and certified, (p. 67).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Proceeding by Smith H. Bracey against Howard H. Hastings, Sheriff, etc., to obtain petitioner’s discharge from custody. From a judgment refusing to discharge him, petitioner brings error.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Suit by Jemima Kerns against John Carr and others. Decree for plaintiff, and defendants appeal.</p>

Bill in equity by Vinanzio Di Baeco and others against R. D. Benedetto and others, with cross-bill by Benedetto. Decree for* complainants, and defendant R.dD. Benedetto appeals.

W. E. Hoilman was convicted of tbe second offense of selling intoxicating liquor in violation of the statute, and he brings -error.

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Eliza Hodge against tbe Sycamore Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Cancellation op Instruments — Negotiable Note — Frcmd—Equity Jurisdiction.</p> <p>Equity has jurisdiction to cancel a negotiable note before maturity, which has been procured by the fraud of the payee, if it is still in his hands or the hands of an endorsee who took it with knowledge of such fraud, (p. 115).</p> <p>2. Equity — Dismissal on Merits — Effect.</p> <p>The effect of a decree dismissing a bill on the merits of the case, is to overrule a demurrer on which no ruling had expressly-been made. (p. 115).</p> <p>3. Subrogation — Extent of Might.</p> <p>Subrogation entitles a person to no greater rights than the party had to whose rights he claims subrogation, (p. 119).</p> <p>4. Judgment — Against Indorser — Melease.</p> <p>The holder of a note, who has recovered judgment thereon against the endorsers only, and who has no knowledge of equities against them in favor of the maker, may release such judgment without affecting his rights against the maker, (p. 119).</p> <p>5. Contracts — Brand—Hazard,</p> <p>Elements of hazard do not necessarily render a contract fraudulent. (p. 121).</p> <p>6. Fraud — Inference—Proof.</p> <p>Fraud can not be inferred alone from facts and circumstances which are consistent with honest and fair dealings; it must be clearly proven, (p. 121).</p> <p>7. Equity — Dismissal Without Prejudice.</p> <p>Where plaintiff avers a good cause for equitable relief, and fails to prove it, but does establish a right of action in tort against one of the defendants, it is not error to dismiss his bill without prejudice to his right to sue said defendant at law. (p. 123).</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Chester A. Dumphy against the Norfolk and Western Railway Company. Judgment for defendant and plaintiff brings error.</p>

<p>1.. Divorce — Bill—Demurrer.</p> <p>A bill for divorce a mensa et thoro, on the ground of cruel and-inhuman treatment, which alleges specific acts with reference tO' time, place and circumstance constituting such ground is good on' demurrer though the ground be not formally alleged in the language of the statute, (p. 136).</p> <p>2. Same — Gruel and Inhuman Treatment — Evidence—Review.</p> <p>The court below having found from the evidence the fact of such cruel and inhuman treatment, and the evidence tending strongly to support that finding, the decree will not be reversed on the question of fact. (p. 135).</p> <p>3. Same — Cruel and Inhuman Treatment — Condonation—Conditions.</p> <p>Condonation by the wife of specific acts of cruel and inhuman treatment by her husband are treated as conditioned on his subsequent good behaviour, and will never bo allowed to weaken her title to relief, and if such acts be subsequently repeated the condoned acts will be revived as ground of divorce, (p. 138).</p> <p>4. Same — Divorce a mensa et thoro- -Alimony — Amount.</p> <p>Defendant in this case being able bodied and earning sixty five dollars per month, and owning a house and lot and a vacant lot estimated to be worth at least throe thousand dollars and some money, twenty four dollars per month decreed to the plaintiff for alimony is not unreasonable, (p. 188).</p> <p>5. Same — Decree of Separation — -1levievt.</p> <p>The pleadings not calling for such relief, a decree of separation will not be reversed for failing to ascertain and decree the estate and rights of the parties in property owned by them respectively, (p. 133).</p>

Suit by Mrs. W. H. Sleeth against S. J. Taylor and others, with cross-bills in the nature of original bills by Blake Taylor, B. W. Taylor and others, and A. F. Wilmoth against M. L. Taylor and others. Decrees for complainant and for cross-complainants B. W. Taylor and others, and M. L. Taylor and Lydia A. Taylor appeal.

Action by George M. John against the Baltimore & Ohio Railroad Company. From a judgment sustaining a demurrer to the second amended declaration and each of the three counts thereof, plaintiff brings error.

Certified Question from Circuit Court, Wetzel County. Suit by J. A. Lemley against the Wetzel Coal & Coke Company. Demurrer to bill overruled, and question as to the sufficiency of the bill on demurrer certified by the circuit court.

<p>1. Trusts — Following Property or Proceeds — Change in Property.</p> <p>A party whose property has been appropriated by another may in equity follow and secure such property, either in its original or in any changed or different form, and this right to so follow and secure it extends to the property either in its original or any altered form in the hands of a third party, where it appears' that such third party took' it with notice of the fact that it had' been improperly appropriated .(p. 160).</p> <p>2. Same — -Following Vroperty — Equity J-misdietion.</p> <p>The jurisdiction of equity to follow property, or the proceeds thereof, when the same has been converted into some other form, at the suit of the owner thereof, will not be denied because the title of the plaintiff in such suit is contested by another, when the determination of the rights of the parties to the (property simply depends upon the construction of their title papers, and not upon the determination of any question of fact. (p. 160).</p> <p>3. Logs and Logging — Conveyance of Timber — Femoral—Subsequent Agreement.</p> <p>Where the owner of land conveys tjie timber thereon to a trustee to secure a debt which he owes to another, and there is no limit as to the time within which such timber shall be removed, it is competent for the owner of such land and the party secured by such deed of trust to fix such time by subsequent agreement, and when they have by such subsequent agreement fixed the time within which such timber is to be removed, and a sale is made under such deed of trust with reference to the time agreed upon by the parties for the removal of said timber, and the deed to the purchaser under such deed of trust provides for the removal of said timber within such time, such provision is valid and binding, and the purchaser’s right to remove said timber will cease and determine at'the expiration of such time.' (p. 164).</p>

Certified Questions from Circuit Court, Ritchie County. Bill by Charles A. McMillan and others against Charles 0. Connor and others. Demurrers to bi]l overruled, and questions certified by the circuit court.

Certified Questions from Circuit Court, Roane County. Suit by Emma D. Davis and another against Wm. M. Cheuvront. Demurrer to bill overruled, and questions of law certified by the circuit court on joint application of counsel for both parties.

<p>1. Corporations — Fraud—Bill by Corporation — Parties.</p> <p>Where some of the promoters, who are also directors, officers and agents of a corporation, have surrendered to the corporation all the profits of a conspiracy to defraud the corporation and no further relief is desired or could be obtained against them, they are not necessary parties to a bill subsequently filed by the corporation against the other parties to the fraud to clear up the title to property, the subject matter of such fraud, and for an accounting by them for money and other property fraudulently obtained thereby, (p. 189).</p> <p>2. Same.</p> <p>Nor are the vendors who took from one or more of such conspirators notes and hold liens on such property for deferred payments of purchase money, not parties to the fraud, and who subsequently and before suit sold and transferred said notes to some of the parties to the fraud, and who "have no further interest in the subject matter of the litigation, necessary parties to such suit, (p. 189).</p> <p>3. Equity — Bill—Multifariousness.</p> <p>Nor is such a bill bad for multifariousness, where its object is to undo the wrongs and injuries perpetrated upon it by its directors, officers, and agents, and obtain good and clear title to the property and an accounting by the parties to the fraud of the money or other property the fruits of the conspiracy to defraud the corporation. (p. 190).</p> <p>4. Corporations — Promoters and Officers — Conspiracy—Sufficiency.</p> <p>Where one of the parties to such a conspiracy and who secured the options from the original owners of the property and as a part of the scheme fraudulently and secretly agrees with one or more of the other promoters and directors of the corporation to allow and pay them out of the price which he is to receive from a syndicate of which he is also a member and by and through which the property is to be by them so fraudulently transferred to the corporation at a price which will net to the syndicate a greater profit, he will be liable to account to the corporation for the sum so paid or agreed to be paid, in addition to other sums recoverable against him. (p. 190).</p> <p>5. Same — Promoters or Directors — Secret Profits — Accountability.</p> <p>The general rule applicable to the facts in this case is that promoters or directors of a corporation, and those colluding with them, who in breach of their trust and in fraud of the corporation take to themselves secret profits, are liable to account to the corporation therefor. (p. 190).</p> <p>6. Fraudulent Conveyances — Relationship—Presumption.</p> <p>While dealings between persons standing in the relationship of brother-in-law and sister and affecting injuriously the rights of others are not presumptively fraudulent yet such relationship when fraud is charged calls upon the court for careful and close scrutiny of the transactions and conduct of and evidence offered by such persons and when such transactions involve the payment of large sums of money the testimony of such parties when uncorroborated by receipts, memoranda, and other documentary evidence must be clear, positive, definite, consistent with other evidence offered and free from contradiction, (p. 195).</p> <p>7. Evidence — Failure of Proof — Badge of Fraud.</p> <p>And if the party claiming the benefit of such transaction when assailed as fraudulent has it within his power to establish the facts relied on by satisfactory proof, his failure to do so constitutes a badge of fraud, (p. 195).</p> <p>8. Infants — Ratification of Contract — Effect.</p> <p>When an infant has once ratified his contracts after arriving at full age he can never afterwards elect to hold them void. (p. 198).</p>

<p>Habeas corpus by James Watson against S. A. Daniel, sheriff.</p>

<p>1. Franchises — Secondary Municipal Franchise — Conditions Precedent.</p> <p>The l-iglit óf a public service corporation to hold and enjoy a secondary franchise granted by a municipal corporation and conferring- priviliges and rights within the limits of the city, town or village, that can bo exorcised only by its permission, depends upon the continuous performance of the public duties assumed by the acceptance of the franchise, constituting a condition precedent to such right, (p. 215).</p> <p>2. Same — Municipal Franchise — Rescission—Equity Jurisdiction.</p> <p>On the failure of such performance, the right or privilege granted by the franchise terminates, and a court of equity has jurisdiction to cancel tho franchise, by way of rescission of the contract between the granting and accepting corporations, (p. 215).</p> <p>3. Same — Bill for Rescission — Parties.</p> <p>The assignor of such a franchise, having no interest in it and not guilty of any act or conduct constituting ground for such rescission, is not a necessary party to a bill filed to effect it. (p. 214).</p> <p>4. Telegraphs and Telephones — Municipal Franchise — Unauthorised Acts — Injunction.</p> <p>A telephone company holding a franchise for the installation, maintenance and operation of one telephone system in a city, town or village cannot, without the consent of such municipal corporation, take over by purchase, another system constructed by another company, under another franchise, and operate both.systems-separately and contemporaneously, nor use the locations of such other system in the streets for wires and other appliances of its. own system, nor take the benefit of other privileges granted to. such other company, without having acquired its franchise as. well as its tangible property; and a court of equity has jurisdiction to enjoin such acts. (p. 214).</p> <p>5. Equity — Bill—Joint Demurrer.</p> <p>A joint demurrer to a bill in equity by two defendants operates jointly and severally, and may bo sustained as to one of them and overruled as to the other, (p. 213).</p> <p>6. Same — Demurrer-—Bulmg. '</p> <p>A general demurrer to a bill in equity setting up several grounds for relief challenges the sufficiency of the bill as a whole and does not call for adjudication as to the sufficiency of each of the several parts, (p. 213).</p> <p>7. Appeal and Error — Certification of Question — Affirmance.</p> <p>Upon a certification of the overruling of such a demurrer, under the last clause of sec. 1 of ch. 135 of the Code, the appellate court, on finding one part of the bill sufficient, will affirm the decision, without inquiry as to the sufficiency of the other parts, (p. 21(3).</p>

<p>1. Schools and School Districts — Teachers Wxeused from Institute Attendance — Certificate.</p> <p>One proposing to teach school who is, under the provisions of section 106 of eh. 45 of the Code, 1913, excused from institute attendance by the county superintendent of the county in which he proposes to teach, for some reason deemed sufficient by such county superintendent, need not ’have a certificate of such fact in writing, in order to have the benefit thereof, (p. 220).</p> <p>2. Same — ■Appointment of Teacher — Writing.</p> <p>The appointment of a teacher by trustees of a sub-district under the provisions of section 56 of ch. 45 of the Code of 1913, to be binding- upon the board of education, must be in writing. (p. 220).</p> <p>3. Same — Board of Edxieation — Notice of Meeting.</p> <p>It is immaterial whether all of the members of the board of education have notice of a special meeting, in accordance with the provisions of section 32 of ch. 45 of the Code of 1913 or not, where it appears from the minutes of said meeting that all of the members of said board were present thereat and participated therein, (p. 220).</p> <p>4. Same — Establishment of Graded School — Statute.</p> <p>Where in a district the conditions exist which are required for the establishment of a graded school, in accordance with the provisions of section 28 of ch. 45 of the Code of 1913, and the board of education and other school officers of said district treat such school as a graded, school, and it is in fact conducted as such graded school, it will be considered and held to be such, notwithstanding no formal order may have been entered by the board of education so designating it. (p. 222).</p> <p>5. Officers — Authority.</p> <p>Ore dealing with a public officer m- st inform himself as to the authority possessed by such officer. The public will be bound by the acts of a public officer only so far as he possesses authority, to act. (p. 222).</p> <p>6. Schools and School Districts — Employment of Teachers — Power of Board of Education.</p> <p>Where a board of education takes charge of a graded school and relives the trustees of the sub-district from their duties in regard thereto, such trustees have no authority to employ a teacher, or teachers, for such school, or for any grade therein, (p. 222).</p>

G. M. Nangle was convicted before a justice of the peace of failing to comp'el a child of school age to attend school. The justice refused an appeal, whereupon defendant petitioned the circuit court therefor, and from an adverse ruling, he brings error.

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by David W. Pingley and others against George W. Pingley. Decree for defendant, and plaintiffs appeal.</p>

Suit by Joseph H. McDermott against the Pentress Cas Company and others. Decree for plaintiff, and the Pentress Gas Company and others appeal, and moved to reverse under Barnes Code 1916, c. 135, § 26 (Code Snpp. 1918, c. 135, § 26 [sec. 5006]).

Action by the State, on relation of John Sommers, against George Dowell and others. From a judgment of the circuit court, dismissing plaintiff’s appeal from a judgment of a justice’s court for defendants for costs, plaintiff brings error.

<p>1. Infants — Release of Inheritance — Disaffirmance.</p> <p>A child who has signed a wilting during his minority, releasing his right of inheritance in his father's estate in consideration of an advancement, cannot, after attaining his majority and waiting a number of years thereafter until his father’s death, disavow his act and be let in to share the inheritance, (p. 245).</p> <p>2. Descent and Distribution — -Aávmeement—Change to Gift.</p> <p>A parent who has made an advancement to one of his children and taten from him a writing evidencing the same cannot thereafter, by a mero oral declaration, convert it into an absolute gift, (p. 246).</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Suit by James F. Jones, against Martha J. Smith. Decree for plaintiff, and defendant appeals.</p>

<p>1. Justices op the Peace — Sight of Appeal — Statutes—Counter Affidavit.</p> <p>The right of a defendant to appeal from the judgment of a justice, and thereby to remove the ease into the circuit court to be tried de novo and to have the cause determined without reference to the judgment of the justice on principles of law and equity, as provided by section 169, chapter 50, Barnes’ Code, 1916, is not affected or abrogated by section 50a, of said chapter, being chapter 79, Acts 1915, requiring a counter affidavit as therein provided as a pre-requisite to the -filing of any answer to the action and to make defense thereto. He may notwithstanding said section 50a file with his answer such counter affidavit upon appeal in the circuit court, (p. 253).</p> <p>2. Same — Appeals—New Pleading.</p> <p>The provision of said section 169, that appeals may be tried upon the pleadings made up in the justice’s court, or upon amended pleadings before or during the trial, interpreted in the light of our decisions relating to proceeding before justices, does not limit the parties strictly to amendment of pleadings filed before the justice, but includes now and different pleadings when necessary to the ends of justice, (p. 253).</p> <p>3. Same — Appeal—Affidavits.</p> <p>The affidavit of the plaintiff filed before the justice pursuant to said section 50a, which, as in this case, omits substantial requirements of that section, should be treated as ineffectual either in the justice’s court or upon the trial do novo upon appeal in the circuit court to 'cut off proper defenses or preclude the defendant from filing with his answer his counter affidavit as provided by said statute, (p. 253).</p> <p>4. Same — Appeal—Affidavits—Statute.</p> <p>Such a statute as said section 50a should be so construed as to operate in harmony with the general statute and not to infringe upon it when thé terms thereof fairly and reasonably considered will permit such construction, (p. 256).</p>

<p>1. Trial — Instruction—Evidence.</p> <p>To warrant the giving of an instruction, evidence must have been adduced, tending to Drove facts sustaining the hypothesis it states. (p. 263).</p> <p>Sales — Sale on Credit — Instruction—Evidence.</p> <p>Evidence tending to prove a contract of sale of personal pro-jperty, in which payment of the purchase money, in cash, is stipulated for, as a condition precedent to the transfer of title, or a mere option to purchase, does not justify the giving of an in--struetion propounding the law of a sale on credit, passing title .to the purchaser, (p. 263).</p> <p>Same — "Payment—Fra/ad—Evidence.</p> <p>Such a contract having been proved in a case in which there is an issue as to whether the person making it and delivering possession of the property was an agent of the owner, or a mortgagor in possession, with authority to sell the property for cash, the vendee having no knowledge of his lack of clear title, evidence casting doubt upon' the character of the title as between the alleged principal and agent or mortgagor and mortgagee, has no tendency to prove perpetration of a fraud upon the alleged vendee, he -having failed to comply with the condition of the contract of sale, if-any, or to exercise his option, if any, and an instruction propounding the law of fraud cannot properly be based thereon. <p. 264).</p> <p>4. Trial — Documentary Evidence — Consideration.</p> <p>When documentary evidence admissible for some purposes and inadmissible for others, has been introduced, the court, if requested so to do, should limit consideration thereof, by instructions or otherwise, to proper purposes, or direct disregard thereof as to purposes for which it is not admissible, (p. 265).</p> <p>5. Sales — Bona Eide Purchaser — Notice.</p> <p>A purchaser of property giving, as consideration therefor, only his negotiable notes, and having notice of lack of title in his vendor, before the notes are paid or disposed of by the vendor to an innocent party, is not a complete purchaser and, therefore, not one for value and without notice, within the meaning of the recording statutes, (p. 265).</p>

<p>1. Malicious Prosecution — Right of Action — Canse of Prosecution.</p> <p>In a civil action for malicious prosecution upon a criminal charge before a justice of the peace, in order for the plaintiff to recover it must be shown that the defendant was the proximate and efficient cause of such prosecution, (p. 267).</p> <p>2. Same — Bight of Action — Termination of Prosecution.</p> <p>In a suit for malicious prosecution upon a warrant issued by a justice of the peace, in order for the plaintiff to recover, it must be made to appear that the criminal proceeding has been terminated either by the trial and acquittal of the defendant therein, or by the dismissal of the warrant by the justice for want of prosecution, or for some other reason, (p. 268).</p>

<p>1. Assault and Batteey — Self-Defense—Pleading.</p> <p>In a civil action to recover damages for an assault and battery, the defendant cannot justify upon the ground of self-defense, unless such matter of justification be specially pleaded, (p. 274).</p> <p>2. Same — Self-Defense—Mitigation of Damages — Pleading.</p> <p>In such case, however, evidence tending to show that the assault was committed by the defendant in self-defense may be introduced under the plea of not guilty, in mitigation of damages, but not in justification of the assault, (p. 274).</p> <p>3. Same — Action for 'Damages — Evidence.</p> <p>In a civil suit to recover damages for an assault and battery, it is not proper to admit in evidence the record of a justice of the peace showing the conviction of the plaintiff in the civil suit of an assault and battery upon the defendant for the very same transaction which affords the basis for the civil suit, from which conviction an appeal was taken, and which charge still remains undetermined upon the appeal, (p. 274),</p> <p>4. Same — Damages—Exemplary.</p> <p>Punitive damages should not be awarded in any case unless there is evidence from which the jury may conclude that the defendant acted with malice toward the plaintiff, or with reckless and wanton disregard of the plaintiff’s rights, (p. 273).</p> <p>•5. Same — Action for Damages — Pwivitive Damages.</p> <p>Where in an action for assault and battery there is evidence tending to show that the defendant acted with malice toward the plaintiff, or with reckless and wanton disregard of the rights of the plaintiff, it is proper to instruct the jury that if they believe that the defendant did so act they may in their discretion award damages in excess of that which would compensate the plaintiff for his injury, as a punishment to, deter the defendant and others from the commission of like offenses, (p. 275).</p> <p>■6. Damages — Punitive Damages — Award with Reference to Compensatory Damages.</p> <p>Punitive damages should not be awarded in a case where the amount of compensatory damages is adequate to punish the defendant, and in a case where such compensatory damages are not in the judgment of the jury adequate for the purpose of punishment, only such additional amount should be awarded as taken together with the compensatory damages will be sufficient for that purpose, (p. 275).</p> <p>7. Same — Punitive Damages — Amount.</p> <p>In a case whore it is proper to award punitive damages the amount of such award must bear some reasonable proportion to the amount of compensatory damages, (p. 278).</p> <p>8. Same — Punitive Damages• — Excessive Damages.</p> <p>In a ease in which it is proper for a jury to award punitive damages, it is competent to consider the station of the parties, and particularly the financial and social standing of the defendant, in order that it may be determined what ■will be adequate and sufficient punishment, and where, after considering these elements, as well as the nature and character of the offense committed, the amount found is so out of proportion to the injury inflicted that it is patent that the jury were actuated by motives of ill feeling toward the defendant in ascertaining such damages, and not alone by the purpose to punish the defendant, such verdict will be set aside as excessive, (p. 278).</p> <p>9. Assauj.t and Battery — -Punitive Damages — Excessive Damages.</p> <p>Where in a civil action to recover damages for assault and battery the actual damages found by the jury are substantial as in this case, an award of punitive damages for ten times the amount of the actual damages awarded will not be sustained, (p. 278).</p>

<p>Prohibition — Successive Buies.</p> <p>Where two successive rules in. prohibition are awarded upon the petitions of the same commissioners and members of the county court of the county against the judge of the circuit court to show cause why he should not be prohibited from presiding at the trial of petitioners upon charges preferred against them for incompetence and neglect of official statutory duties, and the first rule is discharged by an order based upon the condition, to which respondent voluntarily consented and in which he joined, "that in view of the feeling developed in the ease he does not desire to hear and determine the charges * and that some other judge will be selected to hear and determine said_charges, who is properly qualified,” the second rule awarded for the same purpose will be made absolute upon the petition of the same parties upon the threat of the respondent to disregard the adjudication to which he so cbnsented and by which he agreed to be bound and controlled, the relative circumstances and conditions and the situation of the parties remaining unchanged and unaltered by anything that has occurred in the meantime.</p>

<p>Quieting Title — Cloud on Title — Second Conveyance by Grantor.</p> <p>Where negotiations for the exchange of a seven passenger Interstate touring ear for a town lot and a note for fifty dollars is consummated by a delivery and acceptance of the car, deed and note,' and the deed and note are returned to the grantor solely to affix and cancel the necessary internal revenue stamps, and in the meantime and in disregard of the rights of the grantee the grantor attempts to consummate a like exchange with another dealer in automobiles who then had notice or knowledge of the antecedent transaction, equity will at the suit of the first grantee cancel the second deed as a cloud upon his title, and.require the grantor to execute and deliver to him an apt and proper deed for the lot in accordance with the terms of the antecedent agreement.</p>

<p>1. Fraudulent Conveyances- — Judgment at Law as Condition Precedent — ‘' Creditor. ’ ’</p> <p>One entitled to unliquidated damages for breach of contract is a creditor within the meaning of Sec. 2, Ch. 133, Barnes’ Code, and may bring a suit to set aside a gift or fraudulent conveyance made by his debtor with intent to hinder, delay, or defraud him in the collection of Ms claim, without first obtaining a judgment therefor; and in such suit a court of equity may ascertain and decree the amount of damages to which he is entitled, and enforce collection thereof against the property fraudulently conveyed, (p. 2S9).</p> <p>2. Jury — Trial 1y Jury — JSqmty—Suits.</p> <p>Fraud being one of the ancient grounds of equity jurisdiction, Sec. 2, Ch. 133, Code, authorizing such suit on a legal demand, does not contravene the constitutional guaranty of trial by jury, (p. 291).</p> <p>3. Fraudulent Conveyances — Limitation of Actions — Knowledge of Grantee.</p> <p>Where a conveyance is purely voluntary and the suit to avoid it is brought within five years, it is not material whether the grantee knew of and participated in the fraudulent intent of the grantor, (p. 292).</p> <p>4. Costs — Reduction of Recovery.</p> <p>Whore the decree complained of is reduced and the reduction is not more than one hundred dollars, the appellant does not thereby substantially prevail, and the appellee is, therefore, entitled to Ms costs, (p. 293).</p>

Circuit Court, Mingo County. Suit by John Dundas Flavelle and others against the Red Jacket Consolidated Coal & Coke Company and others. Decree for plaintiffs, and the named defendant appeals.

<p>1. Corporations — Authority of General Manager — Contracts—“General Agent.’’</p> <p>The general manager of a coal mining corporation is a general agent, and has implied authority to bind his principal by such contracts and modifications thereof as are reasonably necessary in conducting the business of mining and selling coal. (p. 314).</p> <p>2. Principal and Agent — Authority of General Agent — Question for Jury.</p> <p>Where a general agent has such implied power to bind his prin- ' cipal it is error to submit to the jury the question of his authority, (p. 314).</p> <p>3. Trial — Instructions—Consistency—Cure of Instructions.</p> <p>Instructions should be consistent; a bad instruction is not cured by a good one; and the giving of conflicting instructions is generally presumed to prejudice the party complaining, (p. 315).</p> <p>4. Contracts — Consideration—Modification of Original Contract.</p> <p>Where a controversy, whether of law or fact, arises between parties under an existing contract, and they adjust it by making a new contract, such new or modified contract is not without consideration, and it is not admissible to go behind it to ascertain which party'was right in his contention, (p. 317).</p> <p>5. Witnesses — Credibility.</p> <p>Where it is controverted whether or not an oral contract, was actually made abrogating a pre-existing written one, and the testimony of interested witnesses on the point is conflicting, any fact or circumstance tending to show interest or motive in either making, or refusing to make such oral contract, is proper to go to the jury as affecting the credibility of such interested witnesses, (p.' 317).</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by John J. Shelton against Lloyd Fj. Johnston. Decree for plaintiff, and defendant appeals.</p>

<p>Street Railroads — Personal Injury — Burden of Proof.</p> <p>In an action for personal injuries .the burden, of showing actionable negligence on the part of the defendant as alleged is upon the plaintiff, failing in which he is not entitled to a verdict and judgment for the injuries sustained.</p>

Bill of review in the nature of an original bill by L. N. Frantz and others against Susie Lester and others, with answer in the nature of a cross-bill. Decree for defendants, and plaintiffs appeal.

<p>Mines and Minerals — Conveyances—Fee.</p> <p>Where there is a prior oil and gas lease in the usual form upon a tract of land, and the lessor by deed grants to another all the royalty interest in the oil and rentals from gas wells, and in addition confers upon him exclusive authority to drill for oil and gas after the termination of the prior lease without restriction or limitation upon the exercise of such right, the deed vests in the-grantee the fee simple title to the oil and gas in place in the land..</p>

Proceeding by Stephen Bailes, guardian, etc., against John D. Alderson and others, infants, etc. From decrees refusing to allow answer and cross-bill to be filed, setting aside order allowing demurrer and answer to be filed, and refusal to allow infant defendants to make any appearance, they appeal.

Flynn Worley was convicted of murder in the first degree, and from a judgment of the circuit court, affirming the conviction, he brings error.

<p>1. Easements — Way—Purpose and Mode of TIse.</p> <p>Generally where a right of way is granted or reserved without limitations upon its use it may he used for any purpose to which the land accommodated thereby may naturally and reasonably be devoted, and the grantee thereof is entitled to vary his mode of enjoying the same and from time to time avail himself of modern inventions, if by so doing he can more fully exercise and enjoy or carry out the object for which the easement was granted or reserved, (p. 339).</p> <p>2. Same — Way—Erection of Telephone Line.</p> <p>And agreeably to this principle the owner of such a right of way may without imposing upon the servient estate any additional burden not reasonably within the contemplation of the parties to the grant or reservation erect or cause to be erected poles and wires along and over such way for the use of a private telephone at his residence on the dominant estate, (p. 361).</p> <p>3. Same — Use of Way — Injunction.</p> <p>And an injunction will not lie against a telephone company employed by the owner of such right of way to restrain it from erecting poles and wires along and over such way to provide the owner thereof with private telephone service at his place of residence on the land to which such way is appurtenant, (p. 361). .</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit for injunction by T. A. Lambert and another against the Huff, Andrews & Thomas Company and others. From ah order overruling a motion to dissolve . an injunction, defendants appeal.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by A. W. Werninger against W. J. Stepbensou and others. Decree for plaintiff, and one of the defendants appeals.</p>

<p>1. . Statutes — Local or Special Laws — Constitutional Provisions.</p> <p>The inhibition of the passage of local or special laws for "laying out, opening, altering and working roads or highways,” and for "vacating roads, town plats, streets, alleys and public grounds,” contained in sec. 39, Art. VI of the Constitution, does not withhold from the legislature power to pass a law conferring upon a municipal corporation of two thousand population or more, special or local authority and power to maintain and improve its roads, streets, alleys and public grounds, by means and methods different from those provided for roads generally, (p. 380).</p> <p>2. Same — Special or Local Statute — Validating Act..</p> <p>A provision in a special charter granted to such a city by a legislative act, empowering it to reassess and charge real estate therein with the costs of street paving previously done and subsequently to be done, when the original assessments have been, or shall be, invalid on account of irregularities in procedure, does not conflict with said limitation and is not void by reason thereof. (p. 880).</p> <p>3. Municipal Cop»porattons- -Public Improvements — Invalid Assessments — Curative Act.</p> <p>In case of invalidity of a public improvement special assessment made by a municipal corporation, against real estate, which it was within the power of the legislature to authorize, by reason of irregularities in the procedure under which the improvement and assessments were made, there is a moral obligation and an equitable right against the property enhanced in value by the improvement, which the legislature may constitutionally enforce by the passage of an act providing for reassessment of the costs of the improvement against such property, (p. 380).</p> <p>A Same.</p> <p>An adjudication of the invalidity of the original assessment in such ease, between the dates of the making thereof and the passage of the reassessment act, does not preelude power and authority in the legislature to pass it, nor its operation and effect upon the person and property absolved from liability by the adjudication. Nor can such adjudication be successfully set up by a plea or otherwise, against a bill to enforce the lien of the reassessment made under the curative act. (p. 383).</p> <p>5. Same — Invalid Assessment — Beassessment Act — Lvmitations.</p> <p>The bar of the statute of limitations to an action or other procedure based on such original assessment, intervening before the passage of the reassessment act, vests no right in the person against whom it was made, or his assigns, respecting the property assessed, as against the state or its governmental agencies, since the act neither revives nor continues any legal obligation or lien and the authorization of the reassessment is the exercise of the state’s taxing power, not the mere assertion, revival or creation of a right of action, (p. 382).</p> <p>6. Same — Invalid Assessments — Curative Act — Bights of Purchaser.</p> <p>The state’s power of taxation is not subject to the limitation in the law of conveyancing- in favor of bona fide purchasers, wherefore one who purchases real estate against which an invalid, but curable, special assessment has been made, between the date of an adjudication of its invalidity and that of the passage of an act authorizing reassessmesit of the property, takes it subject to liability to reassessment, (p. 382).</p> <p>7. Same — Beassessment Act — Notice of Beassessment — Besolution.</p> <p>Publication of a resolution of the city council, reciting the reassessment act, ennumerating the invalid assessments, fixing a timo and place for the hearing of all matters pertaining to the reassessment of the costs of the pavement of the streets mentioned in it and directing publication of such hearing, is a suffi-. cient compliance with the provision of sec. 28, eh. 12, Acts of 1915, respecting notice of reassessment, (p. 382).</p> <p>8. Same — Invalid Assessment — Beassessment—Publication of Notice.</p> <p>An insufficient date of such publication, shown in one of the certificates thereof is not good ground of demun-er to a bill to enforce the lien of the assessment, containing an allegation of due publication, since a proper date may bo proved otherwise than by the certificate, (p. 382).</p> <p>9. Same — Public Improvement — Beassessment—Publication by Council — Validity.</p> <p>The use of a civil engineer’s report showing the amounts of unpaid assessments, the frontages of the properties and the names of the owners, in the making of a reassessment, does not invalidate the action of the council, (p. 3S2).</p> <p>10. Same — Invalid Assessment — Reassessment—Discrepancies.</p> <p>Discrepancies in front foot rates of assessment, discoverable by calculation, are not good ground of demurrer to a bill to enforce the lien of a reassessment, if constituting ground of avoidance, since they may be due to payments made on the original assessments. (p. 383).</p>

Suit by Byrd L. Barbee and others against Hiram Lynch, revived after defendant’s death against Susie R. Lynch and others, his personal representatives and heirs at law. Decree for defendants, dismissing the bill, and plaintiffs appeal.

<p>1. Municipal Corporations — City Commissioners — Street Improve,-merits — Determination.</p> <p>Under the provisions of the charter of the City of Huntington' the city commissioners have the authority to determine which of the streets of said city shall be improved by paving the same, and their determination of this question, in the absence of fraud or corruption, will not be renewed by the courts, (p. 403).</p> <p>2. Same — Street Improvements — Assessment—Validity—Waiver.</p> <p>One owning property abutting upon a street proposed to be improved by municipal authorities, ami such improvement paid for by special assessments against the abutting property, knowing of facts which he contends makes a contract entered into between the city and a contractor for the improvement voidable, cannot escape payment of the assessment made against his property for the cost of such improvement by protesting to the authorities making the contract at the time it is made. He must, upon his protest being disregarded, test the question by injunction before the work is done, and if he does not do so he will be held to have waived any right he may have had to question the validity of the contract, (p. 404).</p>

Petition by the Norfolk & Western Railway Company for suspension of an order of the Public Service. Commission requiring petitioner to furnish shipping facilities to the Trace Coal Company for coal mined on its lands.

Certified Questions from Circuit Court, Kanawha County. Assumpsit by John C. Sutherland and others against W. M. Guthrie. Demurrer to plea in abatement sustained, and case certified to Supreme Court of Appeals on questions framed.

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Mary Finney against James Zingale. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Commerce — Injury While Engaged m “Interstate Commerce’’— Switchman.</p> <p>Where an empty car marked "shop” is being switched from the yards of one carrier, where it had stood unloaded for several days, to the interchange track of a connecting carrier for the purpose of returning it to the latter, the owner thereof, for repairs, the switching being wholly within the state, an employe injured while engaged in the operation is not engaged in interstate commerce, though the car was forwarded promptly by its owner to its shop in another state for repair, (p. 430).</p> <p>2. Same — Interstate Commerce — Designation of Car.</p> <p>The mere use of the word "shop” on a car is not equivalent to a designation for haulage in interstate traffic, (p. 430).</p> <p>3. Master and Servant — Safety Appliance Act — Injuries—Eight of Action.</p> <p>Though the Federal Safety Appliance Act of March 2, 1893, as ■amended March 2, 1903 and April 14, 1910, contains no express language conferring a right of action for the death or injury of an employe occasioned by a failure to comply with its requirements, a right of action therefor, nevertheless, is within the contemplation and intendment of the Act. (p. 431).</p> <p>4. Commerce — Safety Appliance Act — Injury While Not Engaged m Interstate Commerce.</p> <p>The requirements of the Federal Safety Appliance Act, as amended, are mandatory and embrace all cars used on any railroad that is a highway of interstate commerce, whether the particular cars are at the time employed in such commerce or not, and includes employes injured through a failure to comply with its terms even though engaged in duties unconnected with interstate commerce, (p. 431).</p> <p>5. Master and Servant — Safety Appliance Act — Sandhold.</p> <p>The maintenance of one grab iron or handhold on each side of the car near one end is not a compliance with section 4 of the Federal Safety Appliance Act of March 2, 1893, as the necessity of having such grab iron or handhold upon each side of the car near each end of the ear is fairly contemplated by the language of the Act. (p. 431).</p> <p>6. Same — Safety Appliances — Order of Interstate Commerce Commission,</p> <p>The suspension clause of the order of the Interstate Commerce Commission entered on March 13, 1911, pursuant to authority conferred upon the Commission by section 3 of the Act of 1910, did not operate to extend the time for equipping each car with four grab irons on the sides, because the order expressly provides that the extension of time shall not be construed to relieve carriers from complying with the requirements of section 4 of the Act of March 2, 1S93. (p. 431).</p> <p>7. Same.</p> <p>The suspension clause of the order of the Interstate Commerce Commission of March 13, 1911, did not relieve carriers from complying with the positive provision of the same order requiring four sill steps on each car, "one near each end on each side of the ear”, but imposed an immediate duty to equip each car with the number of sill steps therein mentioned, (p. 436).</p> <p>8. Same.</p> <p>The grant to carriers of an extension of time within which to comply with the requirements of the Commission’s order of March 18, 1911, was a valid suspension only for the purpose of deferring the standardization of sill steps and other appliances therein mentioned with respect to their exact location, dimensions and manner of application, and did not relieve from the necessity of equipping each car immediately with four secure sill steps of a kind and character reasonably adequate and sufficient to answer the object and purpose contemplated by the Federal Safety Appliance Act. (p. 436).</p> <p>9. Same — Safety Appliances — Car Equipment — Handhold.</p> <p>Though the immediate occasion for passing the laws requiring grab irons was undoubtedly "for greater security to men in coupling and uncoupling cars”, yet these laws are not confined to the protection of employes only when so engaged. Carriers are liable to employes in damages whenever the failure to obey the Safety Appliance Acts is the proximate cause of injury to them when engaged in the discharge of duty. (p. 438).</p> <p>10. Commerce — Safety Appliance Act — Interstate Carrier — Injury to Employe.</p> <p>The liability of an interstate railway company under the Federal Safety Appliance Act to an employe injured through a violation of the commands of those statutes that certain safety appliances be installed upon railway ears used upon a higlrway of interstate commerce, exists, although the employe when injured was engaged in returning the defective car to its owner for repairs, (p. 438).</p>

Suit for partition by Augustus S. Guthrie against Thomas C. Beury and the New River & Pocahontas Consolidated Coal Company, afid others, with petition and cross-bill by Lewis Gwinn and others. Decree for plaintiff, and Thomas C. Beury and others appeal.

<p>1. Partition — Sale of Land — Bequisites.</p> <p>In. order to justify a sale of land in a partition suit it must b8 shown (1) that the land is not susceptible of equitable partition, and (2) that the interests of all the cotenants will be promoted by a sale and distribution of the proceeds, (p. 455).</p> <p>2. Same — Land Susceptible of Partition — Sale—Report of Commissioners.</p> <p>The most usual method of ascertaining whether the land is susceptible of convenient partition is by the report of commissioners, but when their report simply states that the land is not susceptible of convenient and equitable partition, and mentions no facts justifying their conclusion, it does not warrant a decree of sale. (p. 457).</p> <p>3. Same — Sale—Bill—Answer—Burden of Proof.</p> <p>The averment in a bill for partition, that the land is not “susceptible of convenient or equitable partition among those entitled thereto,” is sufficiently denied by an answer averring that “the land in question is susceptible of partition in kind among the various owners thereof,” and easts the burden upon plaintiff to prove the existence of such facts and conditions as render a sale necessary, (p. 455).</p> <p>4. Same — Equitable Partition — Sale.</p> <p>A eotenant is entitled to have his share allotted to him out of that part of the land adjoining his other lands, only when it can be done without injury to the interests of his eotenants; if it cannot be done and equitable partition of the land can otherwise be made, it is error to decree a sale. (p. 457).</p>

<p>1. Municipal Corporations — Streets—Obstructions—Warning.</p> <p>It is the imperative duty of a city to maintain its streets and. sidewalks in a reasonably safe condition for travel, but in ease of necessity it has the right to permit a temporary obstruction thereof without incurring liability, provided it warns the public of the danger of maintaining proper barriers or signals, (p. 459).</p> <p>2. SAME — Temporary Covering Over Sidewalk — Duty of City.</p> <p>A city may lawfully permit a builder to erect a temporary covering over one of its side-walks, alongside of a building in the process of erection, in order to avoid closing the sidewalk and to protect pedestrians from injury from falling materials, such as are liable to be thrown or dropped by the workmen on the building, but the city’s duty requires it to see that such covering is carefully constructed of material of sufficient strength to answer the purpose for -which it is designed. Ip. 459).</p> <p>3. Same — Injury from Sidewalk — Sufficiency of Declaration.</p> <p>A declaration in an action against a city for personal injury, alleging that the injury was caused by a piece of timber falling from a building being erected along one of its streets and breaking through the roof of a temporary covering over the sidewalk and striking him, or was caused by such timber falling out of such covering upon him, which the city had negligently permitted to be erected in an unskillful manner and with defective material, sufficiently avers actionable negligence on the part of the city and is good on demurrer, (p. 461).</p>

<p>Certified Questions from Circuit Court, Barbour County.</p> <p>Suit by the State of West Virginia against J. M. Guffey and others. Demurrers to bill overruled and questions certified.</p>

County. Bill by G-ustavus J. Cresap and others against Nannie I. Brown and others. From the decree, defendants J. Hop Woods and others appeal.

Case Certified from Circuit Court, Jackson County. Charles L. McIntosh, was “indicted for larceny and embezzlement. Demurrers to special pleas sustained, and order certified.

<p>Habeas Corpus by William Samuel and David Slivoo against J. E. Shreves, Jailer, etc.</p>

<p>Original mandamus by the State, on the relation of John L. Ryan, against James H. Miller.</p>

<p>Prohibition by the State, on the relation of Anna F. Ringer, against P. D. Morris and others.</p>

<p>On Appeal from Order of State Compensation Commissioner.</p> <p>Barbera Schipani through Gaetano Poccardi, Boyal Consul, presented to Lee Ott, State Compensation Commissioner, a claim for the death of her husband. Compensation refused, and Poccardi appeals.</p>

<p>1. NEGLIGENCE — Action for Personal Injuries — Decla/ration.</p> <p>A declaration, in an action of trespass on the case for personal injury is sufficient if there be an apparent causal connection between some though not all of the negligent acts averred and the infliction of the injury. Such other averments are mere surplusage, (p. S05).</p> <p>2. Master and Servant — Injury to Servant — Duties of Master.</p> <p>Within the duty of a master to exercise ordinary care to furnish a reasonably safe place for his servant to work are included the furnishing of lights, when necessary, having due regard for the character of the work, the time, manner and place of its performance and the safety of the servant; and also the exercise of like care to furnish a place which will not deprive the servant of the free use of either hand or ann when such use of both is usual and necessary in the ordinary aud usual safe performance of such work. A declaration that avers these duties and the breach thereof, whereby the injury occurred, states a cause of action, (p. 504).</p> <p>3. Same — Injury to Servant — Declaration—Workmen's Compensation Act.</p> <p>The declaration also sufficiently avers that when the injury was inflicted the defendant was an employer entitled to qualify under the provisions of the Workmen’s Compensation Act, and having failed to do so is deprived of the protection it affords and is subject to the burdens it imposes, (p. 506).</p>

Case Certified from Circuit Court, Cabell County. Action by Harry P. Jones against the Main Island Creek Coal Company. On plea in abatement, issue was found in favor of defendant, and question certified to the Supreme Court.

<p>Petition of Pat Marsh and others for writ of prohibition to W. H. O’Brien, Judge, and others.</p>

<p>Case Certified from Circuit Court, Randolph County.</p> <p>Bill by W. M. Brown and others against the Western Maryland Railway Company. Demurrer to bill overruled, and question certified to the Supreme Court.</p>

Case Certified from Circuit Court, Harrisou County. In the matter of the petition of P. W. Ash and others, trustees of the Methodist Episcopal Church of Wilsonburg, for authority to sell certain land. Buena W. Brown and John W. Brown, claiming title, intervened by demurrer and an-crees entered in the partition suit before the nonresident swer. Objections of petitioners were overruled, and case certified.

<p>Case Certified from Circuit Court, Wetzel County.</p> <p>Bill by Joseph F. Hermann against Friend E. Goddard and others. Demurrer to the bill overruled and case certified.</p>

<p>Petition by John C. Price and others for a writ of prohibition against George C. Sturgiss, Judge, and others.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Samuel McCausland was convicted of involuntary manslaughter, and brings error.</p>

<p>1. Specific Performance — Demurrer—Description of Plaintiff.</p> <p>Where a bill for specific performance of an alleged contract for the sale of real estate avers that plaintiff is owner of the land involved in fee simple absolute, other words in the bill referring to 1dm as Et. Eev. Bishop of Wheeling are merely descriptive terms and do not militate against the allegation of a perfect title, (p. 536).</p> <p>2. Equity — Exhibit—Inconsistency with Bill.</p> <p>An exhibit filed with a pleading becomes a part of it with like effect as if bodily incorporated into it, and if there be inconsistency or discrepancy as to dates or as to the cause relied on for relief between the exhibit and the allegations of the bill, in support of which it is filed, the former will be accorded great, sometimes controlling, weight upon demurrer or upon the merits, (p. 538).</p> <p>3. Same — Exhibit—Effect on Allegations.</p> <p>But on demurrer to a bill an exhibit cannot nullify an allegation which it was not offered to support, whatever may be its effect upon the final hearing of the cause upon the merits, (p. 538).</p> <p>4.. Frauds, Statute of — 'Contract of Sale.</p> <p>The statute of frauds does not require that both parties sign the memorandum of the contract for the sale of real estate, but only that it shall be signed by the party to be charged thereby, (p. 538).</p> <p>5. Same — Principal and Agent — Memorandum—Signature by Agent.</p> <p>Where one of the parties to a contract is acting by an agent and the memorandum is signed by the agent as a party, without disclosing his principal, there is a sufficient designation of the parties, and the principal may sue and be sued upon the contract, (p. 539).</p> <p>6. Same — Memorandum of Sale — Terms of Payment.</p> <p>When a memorándum of a contract for the sale of real estate, sufficient in other respects to satisfy the requirements of the statute of frauds, does not expressly state the terms upon which the consideration is to be paid, but does specify that it is "to be settled for in accordance with terms and conditions announced,” and the bill sets forth in detail the terms announced, when read together they set forth a contract sufficient upon demurrer to satisfy the statute of frauds, (p. 540).</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by H. M. Dudding and others against L. R. White and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by J. M. Williams and others against the Croft Hat & Notion Company and others. Demurrer to bill sustained, suit dismissed, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Doddridge County.</p> <p>Action by Benjamin Bond against the Baltimofe & Ohio Railroad Company.' Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Petition by tbe State for writ of mandamus, on relation of Marguerite Spragg Hall, to tbe County Court of Monongalia County. Judgment for petitioner, and defendant brings error.</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Action by M. J. Jennings against J. W. Wiles. Judgment for plaintiff by default, motion to set aside the judgment overi’ulcd, and defendant brings error.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by Sarab Beamer and others against Ulysses W. Clayton and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Preston Count}*-.</p> <p>Bill by the Preston County Coke Company against the Elkins Coal & Coke Company. Decree for plaintiff, and defendant appeals, with cross-assignment of error by plaintiff.</p>

<p>Error to Circuit Court, Preston County.</p> <p>Action by Della Rees, administratrix against B. A. Rees. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Criminal Law — Continuance—Sufficiency of Affidavit.</p> <p>An affidavit in support of a motion for a continuance based upon the absence of witnesses, which does not state who the witnesses are, what they will testify, nor that there is a likelihood that their evidence can be procured if a continuance is granted, is not sufficient to sustain such motion, (p. 603).</p> <p>2. Same — Continuance—Absence of Witness.</p> <p>A motion for a continuance, based upon the ground that the defendant desires to secure alienists to examine him as to his sanity, is properly denied where the affidavit filed in support thereof does not give any reason why such alienists have not been theretofore procured, or show cause why they cannot be procured between the time of the making of such motion and the day sot for trial, and does not show that there is a reasonable probability that such alienists, if procured, would testify as desired by the defendant (p. 603).</p> <p>'3. Same — Instructions—Necessity of Request.</p> <p>The failure of the trial court to instruct the jury without request, and on his own motion, upon any material matter involved, is no ground for reversal, (p. 604).</p> <p>4. Indictment and Information — Name of Deceased.</p> <p>In a prosecution for homicide, if the name of the deceased party as charged in the indictment, and as proved upon the trial is that by which he is usually and commonly known and identified, it is sufficient, even though it is not his real name. (p. 60S).</p> <p>5. Criminal LAW' — Remarles of Court — Rulings on Evidence.</p> <p>Where evidence is offered which is competent only for one purpose, it is not error for the court in passing upon the admissibility of it to express the opinion in the presence of the jury that it is not competent for another purpose for which it is offered, but that it is competent for the purpose for which he admits it. (.p. 605).</p> <p>6. Same — Misconduct of Coimsel — Harmless Error.</p> <p>In the cross examination of a wdtness counsel should not indulge in critical or satirical remarks as to the conduct of the witness while testifying, but where no objection is taken by the opposite party to such conduct, and the court immediately requires counsel to desist from making such remarks, and he does so, it is not ground for reversal, (p. 606).</p> <p>7. Same — Instructions.</p> <p>Where there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested so to do. (p. 607).</p> <p>8. Homicide — Instructions—Insanity.</p> <p>Where one charged with homicide testifies that he had been drugged and robbed by the deceased a few days before the alleged, homicide, and that he was unconscious of any act that he did from the time he was so drugged and robbed until after the homicide, when he found himself in jail, there is evidence tending to support the defense of insanity at the time of the commission of the homicide, and an instruction presenting the same to the jury should have been given, (p. 60S).</p>

<p>Certified questions from Circuit Court, Randolph County.</p> <p>Bill by the Keystone Manufacturing Company against W. N. Fisher. Demurrer to the bill overruled, and ruling certified to the Supreme Court.</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by J. Warren Cade against tbe City of Belington. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Pleading — Amended Declaration — Abandonment of Original Pleading.</p> <p>Where an amended declaration, complete in itself, does not refer to or in any manner adopt or make the original declaration a part of it, the original declaration will be considered and treated as withdrawn and abandoned, (p. 619).</p> <p>2. Action — Joinder of Causes.</p> <p>It is improper to unite in the same declaration a cause of action sounding in contract with one sounding in tort. (p. 621).</p> <p>3. Pleading — Misjoinder of Causes — Demurrer.</p> <p>A misjoinder of causes of action in a declaration is fatal on demurrer, dismissing the action, unless, the plaintiff, as he may, amends so as to eliminate one or the other of the causes of action therein set forth, (p. 621).</p> <p>4. PROCESS — Amendment.</p> <p>Under soc. 15, eh. 125, Code, a summons served on a defendant may be amended so as to correct a variance between it and the declaration, (p. 621).</p> <p>5. Judgment — Judgment Notwithstanding Verdict.</p> <p>A judgment non obstante veredicto must be based upon the merits of the case as disclosed by the pleadings, not in any sense upon the evidence adduced thereunder. It may be applied to defeat a judgment upon a verdict predicated upon a declaration that does not state a cause of aetion entitling the plaintiff to recover. But in no event ean it serve, the purpose of a demurrer to reach a merely formally defective declaration, which but for the informality or irregularity states a good cause of action. (p. 622).</p>

<p>1. Criminal Law — Warrant—Validity.</p> <p>A justice’s warrant issued on the sworn complaint of a prosecuting witness, charging that the accused on a designated day within the year, “did commit an offense by making threats and did strike at him with a broom, ***** and did attempt to hit him with a broom, ’ ’ and commanding the constable to whom it is addressed, in the name of the State of West Virginia, to apprehend the accused and bring him before him, in his district, to answer the complaint, is a valid warrant charging an assault. (P 624).</p> <p>2. Malicious Prosecution — Evidence—Want of Probable Cause.</p> <p>In an action for malicious prosecution, where defendant causes the arrest of plaintiff on a warrant issued by a justice of the peace, upon his complaint of an assault committed upon him, and it appears that the assault was justifiable for the purpose of expelling him from plaintiff’s premises, want of probable cause for the arrest is thereby shown, (p. 625).</p> <p>3. Same — Malice—Evidence—“Legal Malice.”</p> <p>By legal malice, as applied in actions for malicious prosecution, is meant any sinister or improper motive other than a desire to punish the party who is alleged to have committed the offense. Where the chief irurpose in causing an arrest is to obtain possession of personal property claimed by defendant, it is malicious, (p. 625).</p> <p>4. New Trial — Grounds.</p> <p>A trial court is not warranted in setting aside the verdict and granting a new trial on the ground of after-discovered evidence, when such evidence is only intended to contradict or impeach the testimony of a witness, or when it is only cumulative, and not of such character as ivould be likely to produce a different result on another trial, (p. 626).</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Bill by Nicholas Bristow against Emma Tell Tyler and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Bills and Notes — Failure of Consideration — Bona Fide Purchaser.</p> <p>Failure of consideration as between the original parties to a negotiable instrument constitutes no defense in an action by the purchaser thereof in due course without notice. ,(p. 635).</p> <p>2. Same — Bona Fide Purchaser — Erasure.</p> <p>Such instrument constituting an unconditional promise to pay a certain sum of money is npt rendered invalid in the hands of the purchaser thereof in due course without notice by the erasure from the margin of the memorandum, "This note is to fulfill an agreement of a certain date”, or "This note is to fulfill a certain agreement”, or "This note is to fulfill a contract dated July 7th, 1915.” The instrument beiug unconditional such a memorandum constitutes merely a statement of the transaction which gave rise to the instrument, and being immaterial its erasure does not vitiate the paper in the hands of a holder in due eourse. It is protested by section 3, chapter 98A, Barnes’ Code.</p>

<p>Error to Circuit Court, Ohio County,</p> <p>Action by George A.. Bishop against the Wheeling Mold & Foundry Company. Demurrer to declaration sustained, judgment of dismissal rendered, and plaintiff brings error.</p>

<p>Petition of F. H. Sattes for a writ of prohibition to W. G-. -’Pleasants, Justice of the Peace.</p>

<p>1. Elections — Primary Election — Constitutional Lam.</p> <p>The Primaiy Election Statute is constitutional and its regulations providing the manner of nominating candidates for office are reasonable, prescribing the exclusive method for mating such nominations, except in case of certain offices therein expressly excepted, (p. 646).</p> <p>2. Same — Primary Election — Failure to Comply with Election Statute.</p> <p>One who does not certify his candidacy to the clerk of the circuit court of the county, pay to the sheriff his assessment and have his name printed on the primary election ballot of the political party whose nomination for a county office he seeks, as required by the Primary Election Statute, does not become the nominee of such party by the voters thereof voting for him by simply writing or pasting his name on the printed ballot in a blank space that may have been left for that purpose, even though he may have been voted for without opposition, or may have received a larger 'number of votes than his opponents for the nomination, (p. 647),</p>

<p>Error to Cimiit Court, Mercer County.</p> <p>In the matter of the estate of S. A. Meade. From the appointment of H. W. Crockett as administrator, Lula Meade brings error.</p>

<p>1. Contracts- — Express Conditions Precedent — Effect.</p> <p>Where the parties to a contract have specified therein the conditions upon which an action upon the contract may be maintained, such conditions precedent generally must be complied with' before an action for breach of contract may properly - be brought. (p. 661).</p> <p>2. Same — Construction Contract — Conditions Precedent — Prcmd.</p> <p>Though a railroad construction contract requires payment for labor and materials entering into tho performa?ice of tho work agreed upon by the parties thereto to be based upon an estimate made by the chief engineer of the railroad company, and expressly provides that such estimate shall be conclusive upon tho parties and a condition precedent to the maintenance of any action on the contract, nevertheless the contractor may maintain an action thereon where the estimate is fraudulent or so grossly inaccurate as to imply bad faith or a failure to exercise an honest judgment, (p. 661).</p> <p>3. Same — Conditions Precedent — Pelease of Claims.</p> <p>Though a railroad construction contract provides that the chief engineer of the railroad company, before the payment of the final estimate, may require of the contractor “apt and proper release of all liens of laborers, material men, subcontractors and others for any work done or material or supplies furnished for the work embraced in the contract”, nevertheless, if the conduct of such engineer in preparing the estimate was fraudulent, or if he was guilty of an inaccuracy so gross as to imply bad faith or a failure to exercise an honest judgment, the contractor is not bound by such estimate and need not tender such releases, but may maintain his action on the contract to recover the true amount due him. (p. 663).</p>

<p>1. Mines and Minerals — Conveyance—Destruction of Surface.</p> <p>A grant of the coal, minerals and metals underlying a tract of land, with the right to mine and extract the same, hut reserving the surface, does not permit the destruction of the surface or any part thereof by depriving it of its subjacent support, unless the right to do so has been expressed in terms so plain as to admit of no reasonable doubt, (p. 667).</p> <p>2. Same — Coal m .Place — Supports.</p> <p>Ordinarily the grantee or lessee of coal or other minerals is required to leave such part of the coal as -will suffice to support the surface in its natural condition, or to substitute for the coal other permanent artificial support, except where the grantor has expressly and clearly exonerated che grantee from the burden of that servitude, (p. 667).</p> <p>S. Same — Grant—Subjacent Supports — Pelease.</p> <p>But where a deed grants “the right to mine, extract, remove and take away the entire amount and body of said coal * * without reservation, let or hindrance * * without being in any way liable for any damage or injury which may be done to said land, to any waters, or water courses therein or thereon by reason of the mining, excavating and receiving said coal, * * and generally freed, cleared and discharged of and from all servitude whatsover to the land over said coal”, there is a clear, express and unequivocal waiver or release of the usual right to subjacent support. (p. 6'67).</p> <p>4. Same — Conveyance of Coal — ^Reservation.</p> <p>Where the grantors in a coal deed which grants the right to mine, extract and remove "the entire amount and body of said coal * * without reservation, let or hindrance”, reserve to themselves, so long as they shall choose to exercise it, "the right to take coal from any bank on said land for their own fuel”, such reservation is subject to the superior right of the grantee of the coal to mine and extract it until exhausted, and terminates with the exhaustion of the coal granted, (p. 670).</p> <p>5. Same — Conveyance—Timber.</p> <p>Where a coal deed confers upon the grantee the right to cut and use for mining purposes the timber on the land overlying the coal, such timber remains the property of the grantor or his assigns until the grantee exercises his right to cut and appropriate it to the uso contemplated by the deed, and, until so cut and appropriated, the grantee owes the same duty to use due and reasonable care not to damage or injure it that he would have owed if the deed had conferred upon him no permissive right thereto, (p. 671).</p>

<p>1. Infants — Action Against — Appointment of Guardian Ad Litem.</p> <p>Where a "bill for specific performance of a contract for the purchase of land makes the infant heirs of the vendor parties defendant by name, and shows on its face matter -within the jurisdiction of the court, and the final decree, granting relief to plaintiff and appointing a special commissioner to convoy the title to him,, recites that the cause was heard upon the bill, answer of the-guardian ad litem for the infant defendants, naming him, and depositions of witnesses, such recital is conclusive evidence of the-appointment of such guardian ad litem and the filing of a proper-answer by him, nothing contradictory thereof appearing in the record. The mere absence of such answer from the record does not contradict such recital, (p. 674).</p> <p>2. Quieting Title — Who May Maintain Smt.</p> <p>One having no title to land cannot maintain a suit to remove a cloud therefrom, (p. 676).</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Application by Albert Taylor for writ of prohibition against C. E. Stevenson, Justice, and others. Writ granted, and T. B. Smith brings error.</p>

<p>Appeal from Circuit Court, Randolph. Count.</p> <p>Suit by James A. Bent and others against Nora S. Read and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Cora L. Johnson against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

.Bill of conformity by the Security Trust Company, testamentary trustee, against Kate D. Rammelsburg and others for instructions as to disposition of stock dividend. From the decree, complainant appeals.

<p>1. Criminal Law — Constitution of Grand Jury — Plea in Abatement.</p> <p>Tlie appropriate way to put. in issue the validity of an indictment because of the improper constitution of the grand jury which found the same is by plea in abatement, (p. 716).</p> <p>2. Constitutional Law — Motion to Quash — Construction as Plea in Abatement — Constitution of Grand Jury.</p> <p>A paper filed in a criminal case in time for a plea in abatement, containing the allegations necessary to raise the question of the validity of an indictment because of the improper constitution of the grand jury, and properly verified, will be treated as a plea in abatement, notwithstanding the pleader designates it a motion to quash, (p. 716).</p> <p>3. Criminal Law — Equal Protection of the Laws — Exclusion of Colored Persons from Jury.</p> <p>Whenever by any action of the. state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race of color, from serving as grand or petit jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him contrary to the Fourteenth Amendment to the Constitution of the United States, (p. ’716).</p> <p>4. Criminal Law — Equal Protection of the Laws — Pace Discrimination — Sufficiency of Plea in Abatement.</p> <p>A pica in abatement in a criminal ease charging that the defendant belongs to the Negro race, that there are a large number of men of Ms race witMn the county qualified for grand jury service, that none such were upon the grand jury which found the indictment against him, that the list from which the grand jury which indicted him was drawn contained the name of no person of the Negro race, and that the county commissioners in making such list excluded all persons of the Negro race therefrom solely because of their race or color, sufficiently charges that ho has been denied the equal protection of the laws in violation of the' Fourteenth Amendment to the Constitution of the United States, (p. 717).</p> <p>5. Same — Seasonable Doubt — Construction.</p> <p>An instruction attempting to define the term "reasonable doubt,” and concluding with these words addressed to the jury, "If you doubt as men you should doubt as jurors, but if you do not doubt as men you should not doubt as jurors,” should not be given, (p. 717).</p> <p>. 6. Same — Evidence of Other Offenses — Whole Transaction.</p> <p>Upon the trial of one charged with murder, it is proper for the state to prove the whole transaction culminating in the murder, even though this involves proof that the accused committed an assault upon another in his efforts to accomplish the death of his victim, (p. 718).</p>

County. Suits in equity by E. B. McDannald against C. Ervin Wil-moth and others and by Layman C. Shingleton against C. Ervin Wilmoth. Decrees in each case for plaintiff, and C. Ervin Wilmoth appeals.

<p>1. Highways — Board of Commissioners — Maintenance of Sighwa/y — ■ Statute.</p> <p>By reason of the acceptance of the provisions of chapter 10 of the Acts of the legislature of 1890, by the Board of Commissioners of Ohio County, the duty and obligation devolved upon that board to properly maintain that part of the Cumberland road lying within said county of Ohio. (p. 726).</p> <p>2. Same — Maintenance of Bead — Extent.</p> <p>Such duty and obligation extends to the roadway being actually used as tbe Cumberland or National road, even though such actuallv-used roadway may not be upon the exact location originally selected for the said road. (p. 726).</p> <p>3. Mandamus — Duty ' of County Commissioners — Mamtenanee of Sighway.</p> <p>Where it is the duty of a board of county commissioners to keep and maintain a highway in a proper state of repair, mandamus will lie to compel the performance of this duty. (p. 727).</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by J. Addison Suttle, administrator, etc.., against the Hope Natural Gas Company. Judgment for plaintiff, and defendant brings error.</p>

Certified Questions from Circuit Court, Ealeigb County. Bill for accounting by County Court of Raleigh. County against C. V. Cottle and others. Exceptions to answers to special interrogatories propounded to defendant and to certain, claims for credit overruled, and action certified to Supreme Court of Appeals.

Error 'to Circuit Court, Doddridge County. Petition by F. P. Leatherman for the discharge of D. E. Leatherman, his committee. From an order of the circuit court, on appeal, affirming the county court's action in refusing to discharge the committee, petitioner brings error.

<p>1. Elections — Primary Elections — Nomination—Name on Official Ballot.</p> <p>To entitle one, claiming to be tlie nominee of one of the principal political parties as a candidate for a conntv ór district office, to have his name printed as such on the -official ballot to be voted for at the general election, it must appear that his name was printed on the official primary election ballot, that he received more votes in the primary election than any other candidate for such nomination, and that he has complied with the provisions of the primary election act by filing with the clerk of the circuit court a certificate of his candidacy and the sheriff’s receipt, showing payment of his assessment, and that he has also filed with the clerk of the county court the affidavit required by the corrupt practices act showing the amount of expenses incurred about his nomination; or else it must appear that he has been selected by the county executive committee of his political party, in the manner provided by the primary election act, to break a tie or to fill a vacancy which has occurred in a nomination made at the primary election, (p. 754).</p> <p>2. Sami; — Knowledge to Fill Vacancy — Power of County Executive Committee.</p> <p>The county executive committee ■ of a political party is authorized to nominate a candidate only to fill a vacancy which has occurred in a nomination regularly made at a primary election, (p. 756).</p>

<p>Appeal from Circuit Court, Raleigh. County.</p> <p>Bill for injunction by L. E. Mankin against Albert Davis and others. Decree for plaintiff, and defendant Albert Davis appeals.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by L. A. Staker against L. R. Reese. Judgment for plaintiff, and defendant brings error.</p>

Appeals from Circuit Court, Marion County. Suit by E. F. Hartley and another, trustees' under assignment by the Smith-Race Grocery Company, against the Ault Woodenware Company, the Standard Life Insurance Company of America, the Farmers’ Bank of Clarksburg, and others. From the decree on a commissioner’s report,' the Standard Life Insurance Company of America and the Farmers’ Bank of Clarksburg separately appeal.