Volume 83 — West Virginia Reports

<p>Original mandamus by the Citizens’ National Bank of Port Allegheny, Pa., against the Consolidated Glass Company and others.</p>

<p>1. Prohibition — Acquittal—Defense.</p> <p>The defense of autrefois acquit is a matter within the jurisdiction of the court in which the charge to which it is applicable is pending, and cannot be set up in another court by an independent proceeding such as prohibition, while the case in which it may be a proper defense is pending and undetermined, (p. 9).</p> <p>2. Same — Jurisdiction of Another Court — Errors.</p> <p>Prohibition does not lie either to withdraw from the cognizance of any court any matter within its jurisdiction, nor to correct errors made in the exercise of lawful jurisdiction, (p. 11).</p> <p>3. Same — Puling on Motion to Dismiss Criminal Proceeding — Eeview.</p> <p>The overruling of a motion to dismiss a criminal proceeding, on the ground of a former acquittal or conviction of the offense - charged and a rejection of the plea setting up such defense are mere errors in the exercise of jurisdiction, not reviewable by the writ of prohibition, (p. 11).</p>

<p>Prohibition by J. C. Pack against H. D. Karns and others, as the Board of Ballot Commissioners of Mercer County.</p>

Application by the State, on the relation of J. C. Pack, Chairman of the Republican Executive Committee of Mercer County, against H. D. Karnes and others, constituting the Board of Ballot Commissioners, for a writ of mandamus.

<p>1. Mines and Minkbals — “Mineral.”</p> <p>The term mineral is not a definite one capable of a definition of universal application, but is susceptible of limitation according to the intention of the parties using it, and in determining its meaning regard must be had, not only to the language of the deed in which it occurs, but also to the relative position of the parties interested, and to the substance of the transaction which the deed embodies, (p. 22).</p> <p>2. Samf — Conveyance of Coal and Minerals — Extent—Construction of Deed.</p> <p>Where a deed grants the coal and-all other minerals in a toact of land, as well as certain rights to be enjoyed by the grantee in the production of such minerals, and the rights so granted are of the character which are necessary to be enjoyed, and which are ordinarily enjoyed, in the production of minerals from mines, that is, by the process of shafting and tunneling therefor, and there is nothing else showing just what substances the parties intended to include by the language of the grant, the intention of the parties as to the extent of the minerals' granted may be determined from the language of the mining rights granted as incident thereto, and such grant limited to such minerals as are ordinarily produced by the exercise of such mining rights as are granted by tho deed. (p. 21).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Webb Holesapple was convicted of offense under the prohibition law, and he brings error.</p>

<p>1. Prisons — Confinement—Sheriff.</p> <p>■ It is the duty of sheriffs as ex officio jailers of their counties to keep literally in jail persons sentenced to confinement therein, except when at labor under some statute authorizing their employment at work as therein directed, (p. 30).</p> <p>2. Mandamus — Ministerial jDuty.</p> <p>This duty being ministerial, not judicial or discretionary, mandamus is the proper remedy to enforce its performance, (p. 31).</p> <p>3. Same — Sheriff’s Ministerial Duty — Relator.</p> <p>Since section 16, chapter 32A, Code 1918. empowers the state tax commissioner as ex officio state prohibition commissioner to superintend the enforcement of the state prohibition law, he is a proper party to apply for a writ of mandamus to compel a sheriff to carry into effect literally a sentence of imprisonment imposed upon one convicted of a violation of such law. (p. 31).</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by W. P. Beeson and others against the Drake Oil Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>CORPORATIONS — Subscriptions—Cancellation of Original Stock — Assessment.</p> <p>"Where a number of persons agree to form a corporation and, before perfecting their organization, purchase the assets of a competing corporation, and at the_ same time and without any additional consideration acquire from the stockholders thereof all the outstanding stock, dividing it among themselves in proportion to their several contributions to the purchase price of such corporate assets, and then elect officers and begin business in the name of the corporation whose property they acquired, causing stock, representing their several interests, to be issued to themselves, and appoint soliciting agents, who induce other stock subscriptions by representing to the subscribers that all stockholders are to be on the same footing and all stock liable to be assessed until it reaches par, such agreement or understanding operates to cancel the original stock and place all stock thereafter issued on the same basis and liable' to the same assessments.</p>

<p>1. Eminent Domain — Natural Q-as Pipe Lines — Public Use.</p> <p>A company organized to transport and serve the public with natural gas may take by condemnation for its pipe lines land necessary for the proper and efficient conduct of its business as a public carrier, and land taken or proposed to be taken for such use is none the less a pu'blie use because the pipe lines therefor are carried by a gasoline plant for the purpose of extracting and preserving the gasoline and for extracting water and other liquid substances to purify the gas, and to facilitate the transportation thereof through the pipe lines to consumers, (p. 43).</p> <p>2. Same.</p> <p>Nor will the fact that such gas company will indirectly reap a greater income and add to its profits from the gasoline so taken from the gas render the use of the land so taken any the less a public use. (p. 43).</p>

<p>Appeal from Circuit Court, Jackson County.</p> <p>Bill by Harry G. Miller and others against T. I. C. Parsons. Decree dismissing the bill, and plaintiffs appeal.</p>

<p>1. Commerce — Intoxicating Liquors — Webb-Kenyon Act — -Validity— State Law.</p> <p>The Federal statute known as the Webb-Kenyon Act, is valid and does not restrain, limit or nullify see. 31 of ch. 32A of the Code of this state, (p. 52).</p> <p>2. Same — Slate Law — Kffect of Federal Law.</p> <p>There is no legal repugnancy or inconsistency between said sec. 31, eh. 32A, Code, and the Federal statute known as the Reed Bone-Dry Daw, wherefore the former is not superseded, suspended nor abrogated by the latter, (p. 53).</p> <p>3. Ckiminal Law- — State and Federal Law — Separate Offense.</p> <p>An act forbidden by a Federal statute, and a state statute each designed to establish and enforce the same general principle of public policy may constitute two offenses, one against the Federal government and another against the state, (p. 53).</p>

Bill in equity by the Raleigh Coal & Coke Company against-L. E. Mankin for specific performance of an award. From, the overruling of his motions to dissolve an injunction award-. ed in the cause, and from the failure to dismiss the bill, de-. fendant appeals; and from the setting aside of the award,, and a denial of the relief sought by the bill, plaintiff assigns-, cross-error.

<p>Mandamus by the State, on relation of J. W. Copley and others, against the County Court of Mingo County and others.</p>

Suit by John A. Austin, revived after his death in the name of John L. Whitten, his administrator, against J. 0. McDermitt, late Sheriff, etc., and others. From a decree dismissing the bill, plaintiff appeals.

<p>1. Indictment and Information — Evidence—Worthless Chech.</p> <p>An indictment for procuring property or other thing of value-by the issuance of a cheek therefor, without funds in the bank-, to meet the same, in the form prescribed by § 34 of ch. 143. of the Code, is sufficient on demurrer, (p. 75).</p> <p>2. Banks and Banking —Worthless Chech — Defenses.</p> <p>The provision in the statute permitting one who has given a. check, without funds in the bank upon which it is drawn, to sue--cessfully defend an indictment against him by showing that he-has paid oil said check within twenty days after demand being made upon him, is a declaration that such payment of the cheek after demand, and within twenty days, is evidence of lack of; 'fraudulent intent on his part. (p. 75).</p> <p>3. Same — Worthless Chech — Evidence—Frcmd.</p> <p>Where one, without sufficient funds in the bank to - meet a-check which he has given in payment for property delivered to. him at the time of the issuance of the cheek, subsequently, and,, before the presentation of such check deposits in the bank suffi'-cient funds to meet the same, with the agreement that such funds are deposited for the express purpose of paying .said cheek, and the bank, before the presentation of the check for payment, dh verts such funds to another purpose, the drawer thereof cannot be held guilty under section 34 of eh. 145 of the Code. Such deposit of funds in the bank for the express purpose of paying the particular check negatives any fraudulent purpose upon his part as fully as though he had paid off the check after it had been dishonored, and within twenty days after demand upon him therefor, (p. 75).</p> <p>4. Criminal Law — Instructions—Defenses.</p> <p>An instruction given on behalf of the state directing the jury to find the defendant guilty if a certain state of facts is true, but which excludes from their consideration a good defense set, up and relied upon by him, is erroneous, (p. 77).</p> <p>5. Banks and Banking — Worthless Chech — Defenses.</p> <p>In a prosecution under § 34 of Ch. 145 of the Code against one for obtaining property by means of a check, without funds-in the bank upon which it is drawn, it is not error to refuse to permit the defendant to show that shortly after the check; was dishonored and demand made upon him for its payment he was forced into bankruptcy, and his property taken away from him by an officer of the bankruptcy court, (p. 77).</p> <p>6. Criminal Law — Instructions—Seasonable Doubt.</p> <p>An instruction which tells the jury that they should not doubt as jurors unless they doubt as men should not be given, (p. 78).</p> <p>7. Same — Instructions.</p> <p>An instruction in a criminal case which tells the jury that if they believe the defendant guilty to a moral certainty, without requiring such belief to be based upon the evidence introduced in the case, should not be given, (p. 79).</p> <p>8. Banks and Banking — Worthless Chech — Delay in Presentation.</p> <p>The failure of the payee in a chock to present it within a reasonable time "will not affect the liability of the drawer of such check to indictment, under § 34 of ch. 145 of the Code, for obtaining goods or other property by giving a cheek therefor without having sufficient funds to meet tho same, where it appears that the drawer of the check did not lose anything by reason of tho failure to present the same earlier than it was actually presented. (p. SO).</p>

<p>1. Bankruptcy — Sale of Property — Oil and Gas Lease — Loyalties—. Persons.</p> <p>Wliere a tract of land, subject to an oil and gas lease, is subdivided in a proceeding in bankruptcy, and such, sub-divisions, sold separately by the trustee to different purchasers, the pur-, chaser of each sub-division takes the same subject to such oil and gas> lease; and should the lessee in such oil and gas lease, thereafter produce oil or gas from such tract of land the royal ties will be payable to the owner of the sub-division upon which, the wells aro drilled from which such production is had. (p. 83),</p> <p>2. Interpleader — Claims to Loyalties — Determination.</p> <p>Where in such a case a contention is made by the owners of subdivisions other than the one upon which oil or gas is produced that they are entitled to participate in the royalties arising from such production, and the owner of the tract upon which such production is had claims the entire royalties, the lessee, being an innocent stakeholder in relation to such royalties,- and not being advised as to the proper person, or persons, to receive the same, may upon a bill hied showing that he does not collude with any of the parties, have all of the interested parties inter-pleaded, and the adverse claims to such royalties determined, (p. 82).</p> <p>3. Case Distinguished.</p> <p>Lynch v. Davis, 79 W. Va. 437, 92 S. E. 427, distinguished, (p. 87).</p>

Bill by Agnes R. Warren, wbo sues, etc., and otters, against J. 0. Boggs and others. From a final decree dismissing upon demurrer the original, amended, and supplemental bills, plaintiffs appeal, and move to reverse decree.

<p>Error to Circuit Court, Mineral County.</p> <p>Charles Frazee was convicted of a violation of the state prohibition law, and he brings error.</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Action by W. C. Bond against the National Fire Insurance Company of Hartford, Conn. -Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Preston County.</p> <p>Suit for injunction by Edward T. Chrystal and others •against the County Court of Preston County and others. De■cree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>■ Suit by tbe Marion National Bank against Silas Harden) trading, etc. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Morgan County.</p> <p>Bill by George C. Fields and others against P. R. Lawyer, administrator, etc. From the decree, plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by Henry Dilcher, Jr., against Charles Dilcher. From the decree, defendant appeals.</p>

<p>1. Mandamus — Appointment of Election Officers — Municipal Council.</p> <p>Mandamus lies to compel a municipal council to appoint election officers recommended by the proper officer of a political party which, under the provisions of law, is entitled to representation on the election board, and where there is a disputed succession in the official personnel of such party, and there is no higher au- ■ thority within the party to which such controversy can be submitted for determination, the court will, upon the application for the writ of mandamus, decide which of the two claimants is entitled to nominate such election officers, (p. 146).</p> <p>2. Elections — Appointment of Commissioners — Challengers and Foil Clerks.</p> <p>Under the general election law, upon the municipal council, in a municipal election, devolves the duty to appoint commissioners of election and challengers upon the recommendation of the chairmen of the tw'O leading political parties, but such council has no authority to appoint poll clerks, (p. 147).</p>

<p>1. Husband and Wife — Obligation to Support — Enforcement— Eqmty Jurisdiction.</p> <p>There is an obligation upon a husband to support and maintain Ms -wife, and unless by her conduct, or for some other reason, he is discharged therefrom, a court of equity has jurisdiction to enforce the performance of such duty, as well upon the ground of the wife’s disability to maintain an action at law against him, because of the relationsMp, as upon the ground of inadequacy of any remedy which courts of law are competent to afford. (p. 150).</p> <p>2. Courts — Jurisdiction—Legislation.</p> <p>Courts of equity are not deprived of the jurisdiction theretofore possessed and exercised by them by an act of the legislature conferring jurisdiction upon courts of law to grant similar relief, unless such act evinces a plain intent to take away the jurisdiction of equity; otherwise such jurisdiction will thereafter be exercised concurrently by both courts of law and equity, (p. 151).</p> <p>3. Husband and Wife — Support ¡of Wife — Enforcement—Equity Jurisdiction —Statute.</p> <p>Chapter 51 of the Acts of the legislature of 1917, in relation to the desertion and non support of wife and eMldren, and providing punishment therefor, does not deprive courts of equity of the jurisdiction theretofore possessed to entertain a suit by a wife to compel her husband, who refuses to do so, to make proper provision for her support and maintenance, (p. 151).</p>

<p>Certified questions from Circuit Court, Webster County.</p> <p>Hyson H. Cowger wa,s arrested on a peace warrant issued by a justice of the peace and required to give bond to keep the peace, and after giving the bond, he appealed to the circuit court, and moved to quash the warrant. Motion overruled and validity of warrant certified.</p>

<p>1. Libel and SlandeR — Conditional Privilege — Statements m Petition to Remove Publie Officer.</p> <p>A citizen having an interest in the due and proper performance of the duties of a publie officer or agent may petition the tribunal appointing such officer or agent and having power to remove him, for his removal, without liability for false or erroneous representations made therein as ground for removal, provided they were made in good faith for the purpose aforesaid and without malice and knowledge of their untruthfulness, even though he has no right to prosecute the removal proceeding as a party litigant, and he may set up such right as a qualified or conditional privilege by way of defense in an action against him for libel, based upon allegations of false and malicious representations contained in his petition, (p. 158).</p> <p>2. Same — Petition for Removal of Publie Officer — Statements in Good Faith — Presmnption—Absolute Privilege.</p> <p>Such right raises a presumption of good faith in the preparation, circulation and presentation of the petition, which precludes right of recovery, in the absence of allegation and proof of express malice therein; but it does not constitute an absolute privilege absolving the petitioner from liability without regard to his motives and conduct, (p. 159).</p> <p>3. Same — Qualified or Conditional Privilege — Pleading.</p> <p>Though such qualified or conditional privilege may be established by proof under the general issue, it may be pleaded specially, since the plea setting it up is in the nature of a confession and avoidance, (p. 159).</p> <p>4. Same — Improper Conduct of Public Officer — Right of Action— Defenses — Incapacity in Trade or Profession.</p> <p>A writing which imputes to an officer improper conduct in his office or incompetence to discharge the duties thereof properly, or charges a person with incapacity in his trade or profession, is actionable without allegation or proof of special damages, in the absence of proof of legal excuse therefor or justification thereof, (p. 159).</p>

<p>Prohibition by George E. Fisher against J. B. Sonrmer-ville, Judge, and others.</p>

Proceeding by Gaetano Poeeardi, Royal Consul of Italy, etc., against Lee Ott, State Compensation Commissioner, to vacate an order, refusing to consider a claim of the alleged dependents of Pietro Garufi, deceased, or to allow compensation to them, and to require the commissioner to award them, compensation.

<p>Erior to Circuit Court, Mineral County.</p> <p>Arbitration agreement entered of record, in circuit court between Susie M. Bailey and others and John J. Triplett and others for the determination of a disputed boundary line. From a judgment disregarding the umpire’s award on his own opinion and confirming his award in the alternative according to directions contained in articles of submission, John J. Triplett and others bring error.</p>

<p>Appeal from Circuit Court, Mineral County.</p> <p>Suit in equity with attachment by the Piedmont Grocery Company against A. F. Hawkins and others. Demurrer to bill and motion to quash the attachment sustained and suit dismissed, and plaintiff appeals.</p>

<p>1 Divorce — Verme—Process—Statute.</p> <p>The option granted by section 7, ch. 64, Code 1918, to the plaintiff in a divorce suit, of suing in a county other than that of the residence of the defendant, in case the parties last cohabited in the county so selected, carries with it by necessary implication the right to direct process to the sheriff of the county where defendant resides for service upon him there, (p. 188).</p> <p>2. Same- — Verme—Statute.</p> <p>The general jurisdiction of a circuit court to grant divorces is circumscribed, and limited by that part of section 7, ch. 64, Code, which provides that, if the defendant is a resident of this state,, “the suit shall be brought in the county in which the parties last cohabited, or (at the option of the plaintiff) in the county in which the defendant resides.” (p. 188).</p> <p>3. Same — Venue—Option—Statute.</p> <p>By section 7, ch. 64, Code, there is but one circumstance or condition the existence of which confers upon the plaintiff in a divorce suit the right to compel the defendant to go out of the county of his or her residence to defend a suit for divorce brought in some other county, (p. 188).</p> <p>4. Same — Jurisdictional Facts — ■Pleading.</p> <p>Where the' jurisdiction of a court to grant a divorce depends upon the existence of certain facts, such facts must be pleaded, and, if not pleaded, the court has no right or power to proceed or act in the cause, (p. 18S).</p> <p>5. Same — Venue—Pleading.</p> <p>The mere allegation of separation, abandonment, desertion and refusal of cohabitation in a county is not the equivalent of an allegation that the parties last cohabited in such county, (p. 190).</p> <p>6. Same — Jurisdiction—Venue—“In the County in -which the Parties Last Cohabited.”</p> <p>The phrase, “in the county in which the parties last cohabited,” used in the statute, necessarily means the place where the parties ceased to live together as husband and wife in the same house, and ordinarily carries with it the idea of a substantial measure of continuity and regularity, (p. 190).</p> <p>7. Pleading — Verification—Amendment—Statute.</p> <p>When a statute requires all pleadings to be verified by the party in whose name they are filed, (section 8, eh. 64, Code), an amendment of a pleading, especially if material and necessary to confer jurisdiction, must be verified, and if not verified, will be disregarded, (p. 191).</p> <p>8. PROHIBITION — Jurisdiction in Divorce Suit — Pleading and Proof.</p> <p>Where the allegations of a bill in a divorce suit are sufficient to show prima facie jurisdiction, the rulings of the lower court upon facts offered to prove the allegations are at most only erroneous, and therefore not correctable by writ of prohibition; but whore, as in this case, the allegation of essential jurisdictional facts is omitted, the lower court is wholly without jurisdiction in the cause, and where the court, is assuming and continuing to act without such allegations, prohibition will issue to restrain such action, (p. 191).</p> <p>9. Same.</p> <p>Nor in such a case will the writ be delayed to give plaintiff time to correct the bill by proper amendment, (p. 194).</p> <p>10. Same — Other Demedies — Action of Court without Jurisdiction.</p> <p>When a court is attempting to proceed in a cause without jurisdiction, prohibition will issue as a matter of right regardless of the existence of other remedies, (p. 196).</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Detinue by W. W. Ramsey, Trustee, agaist P. J. Reid. Judgment for plaintiff, and defendant brings1 error.</p>

<p>1. CORPORATIONS — ■Authority of General Manager — Scope.</p> <p>The implied authority of a general manager of a corporation extends only to such matters as come within the scope of its ordinary business, (p. 212).</p> <p>2. Mines and Minerals — Mining Corporations — Authority of General Manager — Lease.</p> <p>The general manager of a corporation operating coal mines on leased territory has no implied authority to give, sell, trade or release to another such corporation any part of the leasehold estate, (p. 212).</p> <p>3. Appeal and Error — Finding of Fact — Beview.</p> <p>In the absence of a preponderance of evidence against the finding of a trial court on an issue as to whether such corporation conferred upon its general manager express authority so to dispose of a part of its leasehold, or ratified his unauthorized attempt to mahe such disposition thereof, the appellate court cannot disturb the finding, (p. 213).</p> <p>4. Mines and Minerals — Unauthorized Lease hy Agent — Estoppel— Becovery of Compensation — Enforcement of Penalties. .</p> <p>An unauthorized and unratified agreement made by a general manager of such a corporation with another, under which the latter has mined coal within territory covered by a lease owned by the former, does not estop it from recovery of compensation for the coal so mined nor from enforcement of .the statutory penalties inflicted for mining within a .prohibited area along the boundary line between the leases under which the two companies are respectively operating, (p. 214).</p> <p>5. Principal and Agent — Silence of Agent — Estoppel of Principal.</p> <p>Silence and inaction of an agent as to a matter not within his authority do not estop his principal, (p. 214).</p> <p>6. Estoppel — Knowledge of Trespass — Action for Injury.</p> <p>Knowledge of a trespass or wrong perpetrated by one fully cognizant of the right invaded and silence respecting it after notice do not estop the injured party from asserting his right of action for redress of'the injury done. (p. 214).</p> <p>7. Appeal and Error — Irregularity of Talcing Deposition — Cross-ISxamination — Witnesses—^Reversal.</p> <p>An irregularity in tlie taking of depositions fully developing the merits of the cause, at which all of the litigating parties appeared and examined and cross-examined the witnesses, constitutes no ground for reversal of the decree founded upon them. (p. 215).</p>

<p>Error to Circuit Court, Mineral County.</p> <p>Action by Ambros Barna against the Gleason Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Habeas Corpus — Discharge—Action of Examining Court.</p> <p>Where a court or justice having jurisdiction, on a warrant regular and valid on its face determines that there is probable cause for holding the accused to answer for the crime charged, and his mittimus committing the prisoner to the custody of the sheriff to await the action of the court having jurisdiction to try the accused is also regular and valid on its face, habeas corpus is .not available to review the action of the examining court or to discharge the prisoner from custody on grounds purely defensive, as twice in jeopardy, or failure to indict, or to prosecute an indictment previously found for the same offense, within the time prescribed by the statute, not relied on or made-the foundation for his discharge before the examining court, (p. 227).</p> <p>2. Same — Discharge from Custody — Denial of Eight.</p> <p>Nor is habeas corpus available to procure the discharge from custody of one so accused and held to answer for a crime, until the court having jurisdiction has by some affirmative action denied him some legal or constitutional right, and when the record shows that any order or judgment other than discharge from further prosecution would be absolutely void. (p. 229).</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by the State of West Virginia against the Central Pocahontas Coal Company, Lewis B. Cook and1 others. Decree for defendant Centra.! Pocahontas Coal Company, and defendants Lewis B. Cook and others appeal.</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Bill by Oliver S. Marshall asrainst W. D. Porter, executor, etc., and James M. Porter and others. Decree for plaintiff, and last-named defendant appeals.</p>

<p>BOUNDARIES — Establishment—Grant.</p> <p>An owner of two adjoining tracts of land having a common line may sell and convey any part of one or both tracts and fix the boundary therefor as he may elect, and if the calls in the deed, promptly recorded, locate the common boundary between the tract sold and that retained on a line slightly different from the old one, the line so fixed will prevail over the calls of a subse- ' quent recorded deed conveying the tract so retained, though it purport to fix the common boundary line as formerly located.</p>

<p>Original mandamus by the State, on the relation of H. B. Hundley, Grand Master of the Colored Masons, and others, against A. E. Goodwyn, late Grand Master, etc., and others.</p>

<p>Appeal and Eeroe — Verdict on Conflicting Evidence — Review.</p> <p>In an action upon an insurance policy containing the condition that no obligation is assumed by the insurer unless at the date-thereof the insured is, "in sound health,” which is treated by the defendant as a representation falsely and fraudulently made, and the evidence is conflicting as to the condition of the insured’a health at the time he was insured, and also as to the time he was examined and advised by a physician that he had chronic nephritis, some witnesses fixing the time before and others after the date-of the policy, a verdict based on such conflicting evidence will not be disturbed.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Assumpsit by tbe George De Witt Shoe Company against E. E. Adkins and others. Judgment for defendants and plaintiff brings error.</p>

Suit for divorce by Robert Underwood against Elvinia Underwood. From a decree granting an absolute divorce, but restraining plaintiff from marrying again within three years, from’ date of decree, he appeals.

<p>Error to Circuit Court, Marshall County.</p> <p>Action by Martha Jefferson against J. C. Simpson, executor, etc. Demurrer to declaration overruled, judgment for plaintiff, and defendant brings error.</p>

<p>1. Mimes and Minerals — O.il and Gas Lease — JRecovery of Delay Dentals — Failure, of Consideration.</p> <p>To warrant recovery in an action of assumpsit by lessee against lessor in a lease for oil and gas, of rentals paid for delay in drilling a well, as for money had and received by the lessor for the use of the plaintiff, there must have been a total failure of consideration for such payments, (p. 284).</p> <p>2. Same.</p> <p>Where such lease for oil and gas calls for 288 acres and the lessor has title only to a one-half undivided interest in the oil under sixty-seven acres thereof, there has not been such total failure of consideration as to warrant recovery of delay rentals paid, in an action by lessee against the lessor as for money had and received, (p. 284).</p> <p>5. Same.</p> <p>Such a lease confers on the lessee all the rights of the lessor as a co-tenant to enter and operate for oil, and if such right be of any substantial value there has not been such total failure of consideration as to warrant recovery by lessee of the rentals paid for delay in drilling a well, in an action against lessor for money had and received, (p. 285).</p> <p>4. Same — Recovery of Damages — Failure of Consideration — Breach of Covenant.</p> <p>To warrant recovery of damages by lessee against lessor in such lease for partial failure of consideration or for breach of covenant, the pleadings must present such an issue or issues; they are not recoverable under the common counts in assumpsit, or upon a special count for money had and received, (p. 285).</p> <p>6. Same — Recovery—Rentals of Delay — Surrender of Lease.</p> <p>Where such a lease confers on the lessee a valuable right in oil, though under only a part of the land leased, the lessee is not entitled after verdict in an action for money had and received, to surrender the lease, and to have the benefits of a new trial, upon the theory of total failure of consideration, (p. 285).</p> <p>6. Appeal and Error — Judgment—Acknowledgment of Part of Debt — Flection to take Judgment.</p> <p>The plaintiff, on the filing by defendant of his counter affidavit under section 46, chapter 125 of the Code, is then entitled to judgment for the sum thereby acknowledged to be due him, but if he does not then or at any time before trial elect to do so, he cannot when the pleadings do not warrant any recovery by him assign his neglect to take judgment as ground for reversal on writ of error prosecuted by him in this court, (p. 287).</p>

<p>-Error to Circuit Court, McDowell County.</p> <p>Action of unlawful entry and detainer by 'the Keystone Coal & Coke Company against J. R. Hall. From a verdict and judgment for plaintiff, on appeal to the circuit court, defendant brings error.</p>

<p>1. Creditors'’ Suit — Mortgages—Sale of Property — Bedkction of Incumbrances.</p> <p>In. a suit to enforce payment of judgment, mortgage and trust liens by a sale of the encumbered property, a productive coal mining property, a substantial fund derived from it through a receivership should bo applied to reduce the encumbrance before decreeing a sale of the land. (p. 303).</p> <p>2. Mortgages — Trust Deed — Production of Notes and Bonds — Sale.</p> <p>Ordinarily, notes and bonds secured by trust or mortage deeds should be produced and the holders thereof identified, or the absence of both explained or accounted for, upon a reference to a commissioner, before decreeing a sale of the encumbered property, (p. 297).</p> <p>3. Same — Sale of Property — Decree—Description.</p> <p>But where the plaintiffs’ bill and the answers of the trustees sufficiently describe the notes and bonds and give the total amount thereof, and the debtor does not deny their existence or question their validity, the description will be accepted as true, and for the purpose of the decree of sale the bonds and notes treated as valid and subsisting liens upon the property, without proof of their amount or the identity of the holders thereof before the entry of such decree, (p. 297).</p> <p>4. Same — Trust Liens — Sale—Production.</p> <p>It suffices to protect the debtor to require the holders of such notes and bonds to produce them for the adjudication of all questions connected therewith before the entry of the deeree directing the distribution of the proceeds of sale, (p 297).</p> <p>5. Creditors’ Suit — Discharge of Lien from Bents and Profits— Burden of Proof.</p> <p>Before decreeing a sale of property encumbered by liens, a court in a foreclosure suit ordinarily should ascertain by a reference to a commissioner or by an express adjudication based upon the pleadings or upon facts disclosed and not .controverted, whether the rents, issues and profits of the property will be sufficient to discharge the liens within five years, (p. 300).</p> <p>6. Same.</p> <p>When such ascertainment is necessary, the burden of establishing the insufficiency of such returns rests upon the creditor, (p. 300).</p> <p>7. Equity — Discharge of Liens by Bents and Profits.</p> <p>But if the bill alleges and the respondents in their answers do not deny that the rents, issues and profits likely to accrue from the property will not within that period be sufficient to satisfy and discharge the liens, no such preliminary investigation need be made. (p. 300).</p> <p>8. Mortgages — Foreclosure—Sale—Rental Value of Land — -Ascertainment.</p> <p>In a suit to foreclose definitely described mortgage and deed' of trust liens, where the instruments provide for a sale for cash on default of payment, such a sale ordinarily may be decreed without an ascertainment of the rental value of the land. (p. 301),</p> <p>9. Bankruptcy — Suit to Foreclose — Stay Pending Bankruptcy Proceeding.</p> <p>Such a suit begun in a state court generally will not be stayed upon the petition of the debtor filed therein based upon the pen-dency of a proceeding in bankruptcy against him instituted in a federal court six months thereafter, (p. 302).</p> <p>10.Courts — Concwrent Jurisdiction — Jurisdiction Fi/rst Acquired — • Effect.</p> <p>The general rule concedes to the court which first regularly acquires jurisdiction of the subject matter and the parties the superior right to proceed unmolested to the final determination of the controversy involved therein, (p. 302).</p> <p>31. Creditors’ Suit — Foreclosure and Sale — Redemption.</p> <p>A decree to sell land to satisfy liens thereon should accord to the debtor a reasonable time to redeem, and failure to do so is cause for íeversal. (p. 305).</p> <p>12. Mortages — Redemption—Reasonable Time.</p> <p>What is a reasonable time for such purpose is to be determined from the circumstances of each ease. (p. 305).</p> <p>13. Same — Forecloswe and Sale — Redemption—Advertisement.</p> <p>The period given by a decree of sale for advertising notice thereof is not the equivalent of a day to redeem, (p. 305).</p> <p>14. Same — Foreclosure—Redemption.</p> <p>The giving of a day to redeem is not required in a foreclosure suit where the instrument to be foreclosed is a deed of trust and it prescribes the terms and conditions of the sale upon default, (p. 305).</p> <p>15. Same — Foreclosure and Sale — Redemption.</p> <p>But in such foreclosure suit, where the deed of trust provides only for a public sale, if the court first authorizes a private sale to be conducted by the receivers, and directs a public sale to be had only in ease a private sale cannot be effected in the time’ allowed, a reasonable time and opportunity to redeem the land shoulud be accorded the debtor, (p. 306).</p> <p>16. Same — Reed of Trust — Sale—Advertisement.</p> <p>Likewise, where the deed of trust prescribes advertisement of the time, place and conditions of the foreclosure sale for eight consecutive weeks, it is error for the decree to provide for only four weeks’ advertisement, (p.-306).</p> <p>17. Same — Enforcement of Lien — Priority—Sale.</p> <p>A. mortgagee does not lose any substantive rights by being compelled to enforce his trust lien in a pending judgment creditors’ suit, and where the lien of the former has priority, the time and terms of the sale will ordinarily be determined by the provisions of the trust deed, not by rules applicable to the enforcement of judgment creditors’ liens, (p: 301).</p>

<p>Vendor and Purchaser — Condition of Property — Party Sustaining Loss.</p> <p>Where a vendor, having good title and capacity to perform, makes a valid enforceable contract for the sale of land and, thereafter and before a deed is executed passing the legal title, a fire destroys a building thereon, without his fault or neglect, the loss is sustained by the purchaser. In such case there is no implied warranty that the condition of the property at the time of sale shall continue until after deed is made.</p>

<p>Executors and Administrators — Sale of Land — Adjudication of Priorities of Liens.</p> <p>Where a purchaser of lands takes a deed therefor and immediately executes a trust deed thereon to secure the unpaid purchase money and dies, and, on default of payment, the trustee advertises the property for sale, but before the day of sale the administrator of the purchaser files a general creditor^ bill making the vendor and his trustee parties, it is error for the court, or the judge in vacation, to authorize the trustee to make sale of the property and bring the funds into court, before the amount of the 'debts and priorities of lions have been adjudicated.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by C. W.. Ellison against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>-Appeal from Circuit Court, Mercer County.</p> <p>Suit for specific performance of contract by J. S. Wallace •against the Eclipse Pocahontas Coal Company and others. •Decree for defendants, and plaintiff appeals.</p>

<p>1. SHERIFFS and Constables — Settlement with Commissioners — Suit to Recover Balance — Conditions Precedent.</p> <p>Suit to recover balances ■ found, due from an outgoing sheriff in his final settlement with the commissioners appointed for tho purpose cannot be maintained until he has first been served with an order directing him to turn over such balances to his successor in office. One of the purposes of such notice is the protection of such outgoing sheriff by giving him authoritative information as to tho proper party to receive tho public funds, (p. 333).</p> <p>2. -Taxation — Settlement with Commissioners — Mistakes—Smt for Balance — Conditions Precedent.</p> <p>’Where, however, the sheriff had made his final settlement with commissioners appointed for the purpose, as required by law, and has accounted for the balances thus found to be due from him, and, by an audit subsequently made by the tax commissioner, mistakes are found in such settlement which render such outgoing sheriff liable to some of the fiscal divisions whose funds he has theretofore handled, it is not necessary, before bringing a suit fto recover the amount so found due from him because of such errors, that an order be served upon him requuiring him to pay the amount -thereof to his successor in office, (p. 335).</p> <p>3. Same — Accounts of Sheriff — Mistakes and Omissions — Suit for Balance — Conditions Precedent.</p> <p>Where after the expiration of the term of office of a sheriff, and after he has settled his accounts with the commissioners appointed for the purpose, as required by law, and has paid over the balances so found to be due by him, an audit is made of his accounts by the tax commissioner, and either because of a mistake therein, or of an omission of some item therefrom, it is found that such sheriff is indebted to some or all of the fiscal divisions for which he formerly held the funds, and lie denies the validity of such claim or claims, and refuses to recognize the same, there is no necessity, as a prerequisite to the maintenance of a suit to recover the amount thereof, that he should be served with a copy of an order requiring him to pay over the same to his successor in office, (p. 335).</p> <p>4. Same — Accounts of Sheriff — Audit-—Suit for Balance — Statute.</p> <p>Under the provisions of § 7 of eh. 10B of the Code the tax commissioner lias authority to audit the accounts of a sheriff and ex officio treasurer of a county, and in case errors are found therein which, according to the report of such audit, render such sheriff liable to the county, or some other fiscal division, it is the duty of the tax commissioner to file a copy of such audit with the legal authority of the taxing body, and in case such legal authority fails to institute a suit within a reasonable time to enforce the collection of the amounts shown to be due by such audit, the tax commissioner has power to institute a plenary suit in the name of the fiscal division to which such balance belongs to recover the same, or in case the proper legal authority does institute such suit, but fails to diligently prosecute the same to a conclusion, such tax commissioner has authority to participate in the prosecution of such suit to a speedy and final determination, (p. 337).</p> <p>5. Same — -Suit Against Sheriff — Conditions Precedent — C-opy of Audit.</p> <p>As a prerequisite to the institution of such suit at the relation of the tax commissioner, it must appear that a copy of the audit from which it is claimed the indebtedness sought to be collected appears shall be filed with the legal authority of the taxing body, and where in. a suit so brought at the relation of the tax commissioner the declaration does not show that a copy of such audit has been furnished to the taxing body or to the legal authority thereof, a judgment sustaining a demurrer to the declaration will be affirmed, ip. 337).</p> <p>6. Account — Settlement—Mistake—Action at Law — Surcharge.</p> <p>An indebtedness arising because of a mistake made in the settlement of accounts which does not involve the restatement of such accounts, or which arises from the failure to include in such settlement a proper item, may bo recovered in an action at law without resort to a suit in equity to surcharge and falsify the settlement, (p. 339).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by the Paxton Lumber Company, Incorporated, against the Panther Coal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Suits by J. W. Simpson and G. A. Smith against the Grand International Brotherhood of Locomotive Engineers and others. Verdict for plaintiffs against the Grand International Brotherhood of Locomotive Engineers, and in favor of the other defendants, and recovery in the Smith case reduced on motion for new trial and in the Simpson case motion for new trial overruled, and defendant Brotherhood in each case brings error.</p>

Action by J. A. Long against the Pocahontas Consolidated Collieries Company. Verdict for plaintiff, and from a judgment setting aside the verdict, and awarding defendant a new trial, plaintiff brings error.

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by W. 0. Myers, committee, etc., against the Mutual Life Insurance Company of-New York. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Insurance — Fire Insurance — Commencement of Bislc.</p> <p>Unless the application so provides, it is not necessary that a, policy of fire insurance be issued before protection becomes effective. Insurance commences, as a general rule, at the date on which the contract to insure is consummated by the acquiescence of. the parties, whether that is the date of the issuance of the policy or earlier, (p. 404).</p> <p>2. Same — Fire Insurance — Contract—Application and Acceptance.</p> <p>A contract of insurance, like any other contract, consists generally of two prerequisites, an offer or application and its acceptance, (p. 404).</p> <p>3. Same — Fire Insurance — Limited Acceptance — “Binding Slip.’’</p> <p>Where the insurance is to become effective or the risk attach before the application has been formally accepted by the insurer, frequently a limited acceptance or “binding slip” is given stating such fact. (p. 404).</p> <p>4. Customs and Usages — Fire Insurance — Liability.</p> <p>But where the testimony offered in the case shows the existence of a custom among insurance agents and companies that, in cases of applications for fire insurance, where the agent agrees to try to write the policy, all the terms having been agreed upon, the insurance is regarded as in force from the date bf the application, subject to cancellation by the company, and where the acts of the agent are such as reasonably tend to indicate his intention, to regard the policy as in force, and the jury finds from the evidence that such was his intention, the insurer is bound to compén-sate for the loss of the property incurred prior to notice of cancellation, (p. 405).</p> <p>5. Contracts — Interpretation—Agreement—Question for Jury.</p> <p>Though the interpretation of contracts when made and free from ambiguity is a question for the court, the determination of whether the facts proved or admitted are such as constitute an agreement binding the parties generally is within the province of the jury to ascertain from facts submitted for their consideration and judgment, (p. 406).</p> <p>6. ' Trial — Verdict—Interest—■Pleading.</p> <p>Though, a jury cannot in an action on a contract allow damages beyond the amount laid in the declaration, yet it may add to that sum interest, though the aggregate exceed the amount demanded by the pleading; and where the excess can rightfully be attributed to interest, the verdict is good. (p. 408).</p> <p>'7. Appeal and Error — Trial Verdict — Interest—Amendment After Verdict.</p> <p>Where a jury awards as damages in an action on a contract a sum slightly in excess of that demanded by the declaration, the excess being explainable as interest to cover the time between the dates of the accrual of the cause of action and the trial of the ■case, an amendment of the declaration after verdict increasing the amount demanded to a sum sufficient to cover the verdict is not prejudicial to defendant, because unnecessary, the verdict being proper if no amendment .had been permitted, (p. 408).</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Loring Rice was convicted of incest, and he brings error.</p>

Suit by Charles L. Brown, as trustee of William J. Brown, against William J. Brown and others. Demurrers to bill filed by part of defendants sustained, and bill dismissed, and plaintiff appeals.

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Suit by Homer Freeman against Martie Swiger and others. Decree for plaintiff, and defendants appeal.</p>

<p>1. Attachment — Legal Claim — Jurisdiction.</p> <p>When plaintiff's claim is purely legal and jurisdiction in equity depends solely on the validity of the attachment, if that is not good, the jurisdiction fails, and the hill should be dismissed, (p. 430).</p> <p>2. Same — .Affidavit—Sufficiency.</p> <p>An affidavit for attachment as provided by section 1, eh. 106, Code, is not invalid for omitting to allege that plaintiff believes he is entitled to recover from the defendant; it is sufficient to allege in the language of the statute the amount of the claim which he believes he is justly entitled to recover in the action, (p. 430).</p> <p>3. Same — Nature of Glai/m, — Statement.</p> <p>As construed by our decisions, section 1, ch. 106 of the Code, requires) that plaintiff in stating the nature of his claim should state it with as much particularity, though not in detail, as is required in the declaration or bill, so that it may thereby be made to appear that he has a valid cause of action against the defendant, (p. 430).</p> <p>4. Same — Affidavit—Allegations.</p> <p>And in compliance with the rule just stated when the suit is upon a negotiable note against the endorser thereof, it is necessary for the plaintiff in his affidavit for an attachment in stating the nature of his claim to allege presentation- for payment at the time and place appointed and within proper hours, demand of payment, and due notice to endorser, and when payable at a bank, according to the requirements of the Uniform Negotiable Instruments Law, it should allege presentation for payment at the bank where payable during business hours, and before the close of the bank in the event contemplated by the statute. It is not sufficient to allege that the note was duly protested, (p. 430).</p>

<p>1. INSURANCE — Appointment of Beneficiary — Subsequent Change of Relationship.</p> <p>The appointment of beneficiaries to death benefits by the insured in a contract of insurance, valid in its inception and un-revoked by him, is not affected by subsequent change of relationship by marriage or divorce unless so stipulated in the contract or controlled by some provision of law. (p. 4B8).</p> <p>2. Same — Mutual Benefit Association — Subsequent Marriage of Insured.</p> <p>Where in such contract of insurance in a voluntary mutual benefit association the applicant in accordance with the regulations of the association has appointed his father and mother to death benefits resulting solely from natural causes or from accident not under control of tho person or corporation by whom he is employed, as stipulated, such appointment is not revoked by the subsequent marriage of the insured, unless so stipulated in the contract or by the rules and regulations made part thereof, (p. 438).</p> <p>3. Same— -Mutual Benefit Association — Appointment of Beneficiary— Revocation.</p> <p>Where a subsequent regulation specifically provides that death benefits for death resulting from accident shall go to the widow, children or parents of the deceased member, but provides that if at the time of his application the member shall have neither of the preferred beneficiaries named, he may if he so elects appoint some other person or persons beneficiary or beneficiaries, the subsequent provision thereof that his marriage subsequent to such application shall be a revocation of such appointment, the effect of such revocation should be limited to death benefits resulting from accident and should not be extended by construction to benefits for death resulting from natural causes which the member in his application has directed to be paid otherwise and according to some other provision of the contract, (p. 438).</p> <p>4. Same — Rights of Beneficiary.</p> <p>The right of a beneficiary lawfully appointed to such benefits is in its inception inchoate .but becomes consummate on the death of the insured and cannot be thereafter waived or abrogated by the insurer or otherwise changed unless absolved by some positive rule of law. (p. 440).</p>

<p>1. DEDICATION — Sale by Reference to Map — Right, of Purchasers.</p> <p>Where the owner lays off a tract of land into lots, streets and alleys for an addition to a town, and has a map made thereof, with reference to which he maltes sale, of such lots, the purchasers thereof are entitled to the use of all such streets and alleys necessary to the complete enjoyment of the lots purchased Toy them, (p. 445).</p> <p>2. Same — Streets and Alleys — Aeeeptanoe—Right to Malee Improvements.</p> <p>Where the owner of a tract of real estate lays off the same into lots abutting upon streets and alleys, as shown by a plat thereof, and dedicates such streets and alleys to the publie upon their natural grade and in their natural state, and such ' dedication is accepted by some public corporation having the right to ' accept the same, such publie corporation has authority to make such improvements in the streets and alleys so dedicated as will make them reasonably fit for. the purpose of their dedication, so that the reasonably convenient use thereof by any abutting owner is not materially affected, (p. 446).</p> <p>3. Same — Town Addition — Map—Right of Purchasers — Change of Grade.</p> <p>Where a tract of land is laid off into lots, streets and alleys as a sub-division to a city or town, and the owner so laying off the same makes a map thereof, and.makes sale of the lots with reference thereto, the purchasers of such lots have the right to the freo and unobstructed use of such streets and alleys, and where it is necessary, in order that such use shall be enjoyed, that changes be made in the natural grade of such streets or alleys, any purchaser so having the right to use the same may make such changes as are necessary for the reasonable enjoyment of the easement possessed by him, so that he does not materially affect any other abutting owner’s'reasonably convenient use of such streets or alleys, (p. 446).</p>

<p>Furor to Circuit Court, Mason County.</p> <p>Action by B. H. Blagg, administrator of Raymond Bennett, deceased, against the Baltimore & Ohio Railroad Company. Judgment .for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Tajdor County.</p> <p>Suit for injunction by Benjamin F. Sayre against John H. Kunst, executor, etc. Decree for plaintiff, and defendant appeals.</p>

Action by A. A. Williams against tbe Main Island Creek Coal Company, the County Court of Logan County, and others. Verdict- and judgment for defendants, and plaintiff brings error.

<p>Error to Circuit Court, Wayne County.</p> <p>Action by L. E. McClure and F. E. Way, receivers of the Kenova Poplar Manufacturing Company, against the Norfolk & Western Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

Questions Certified from Circuit Court, Doddridge County. Action of assumpsit by the First National Bank of West Union against W. W. Freeman. There was an order striking out a special plea and question certified.

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by the Union Water Meter Company against the Town of New Martinsville. Judgment for defendant, and plaintiff brings error.</p>

Bill by Cora B. Doneboo and others against J. D. King and others and J. W. Cassinghani and others. Decree for plaintiffs, and defendants J. W. Cassingham and others appeal.

<p>Appeal from Circuit Court, Calhoun County.</p> <p>Suit by W. S. Hupp and others against the Parkersburg-Mill Company and others, with cross-bill by defendants. Decree denying relief sought by the bill, and granting the prayer of the cross-bill, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Suit for divorce by George T. Buseman against Bessie P. Buseman and others. Decree of divorce and separation depriving plaintiff of care of his infant child, and he appeals.</p>

<p>1. Bills and Notes — Evidence—Accommodation Mahers — Co-Sureties — Presumption.</p> <p>As between accommodation makers of a promissory note the presumption is that they are co-sureties, and as such liable to contribution to one of their number discharging the obligation, but thia presumption may be rebutted by parol evidence showing that the one last signing was and is a surety for the prior accommodation; makers, and not their co-surety, (p. 505).</p> <p>2. Principal and Surety — Implied Authority of Principal.</p> <p>If one sign a note as surety and entrust it to his principal, he thereby gives the latter implied authority to obtain either additional sureties or guarantors indefinitely until the note is fairly launched in the market as a security, (p. 506).</p> <p>3. Same — Stipulation Against Contribution.</p> <p>One who signs as surety on such note may stipulate at the time of entering into the obligation that he will not be liable for contribution with- other sureties ivho signed before him. (p. 506).</p> <p>4. Same — Stipulation—Extent of Suretyship.</p> <p>One who thus signs such a note, at the request of the principal debtor, to enable him to discount it, may,- without the knowledge of the prior surety, and without any agreement or understanding with him, stipulate with the principal debtor that he signs only as surety for the prior parties, (p. 506).</p> <p>5. Same — Stipulation by Surety — Contribution—Parol Evidence.</p> <p>Such, stipulation need not be in -writing-, and parol evidence is admissible to show an express contract to that effect, or such contract may be implied from facts and circumstances shown, (p. 506).</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by Young Maynard and others against S. Sbein and others. Decree for plaintiffs, and defendants appeal.</p>

<p>1. Appeal and Error — Appeal from Fart of Decree — Acceptance of Benefits.</p> <p>Generally a party availing himself of a decree so far as favorable to him cannot appeal from the decree wherein it is not favorable to him, if his acceptance of the benefit on the one hand is totally inconsistent with appeal on the other, (p. 516).</p> <p>2. Same — Prosecution of Appeal — Wcmer of Errors.</p> <p>No waiver or release of errors operating as a bar to the further prosecution of an appeal or writ of error can be implied except from conduct which is inconsistent with the claim of right to reverse the decree or judgment which it is sought to bring in review.</p> <p>(p. 516).</p> <p>3. Same — Appeal from Part of Deoree — Acceptance of Benefits — > Waiver of Appeal.</p> <p>"Where the parts oí a decree are separate and independent, and the receipt of a benefit from one part is not inconsistent with an appeal from another, the party receiving the benefit will not be-deemed to have waived his right to appeal, (p. 516).</p> <p>4. Same.</p> <p>Where, after confirmation of a judicial sale, the eourt later-sets it asido because of a higher offer, orders a resale, and di-. reets the return of the money paid and notes delivered by the first, purchaser, the portion of the decree directing the return of the-money and notes is clearly separable and independent from that part of the decree which totally deprives the purchaser of all his: rights under the sale confirmed to him, and the acceptance of the one under protest at the direction of the eourt cannot reasonably be construed into a waiver of his right to appeal the other, (p. 518).</p> <p>5. Same — Vacation of Judicial Sale — Purchaser’s Plights of Appeal.</p> <p>A purchaser at a judicial sale which has been confirmed has acquired such a fixed interest in the property' sold as entitles him,, though not a party to the original suit, to appeal to a higher tribunal to protect his rights against an improper setting aside of such sale, at least where the resale has been made and confirmed by the court, (p 519).</p> <p>6. Judicial Sai.es — Control of Cowrt — Confirmation.</p> <p>There is a wide difference between the court’s power of control over a sale before and after confirmation, (p. 519).</p> <p>7. Appeal and Error — Judicial Sales — Confirmation—Bights of Purchaser — Direction of Besale — Discretion.</p> <p>Before confirmation the rights of the purchaser are inchoate,, and upon a showing of inadequacy of price, or upon an offer of' a higher bid, properly secured, it is discretionary with the court-, whether it will confirm the sale or set it aside and direct a resale.. The exercise of this discretion depends in large measure upon the-facts of each case, abuse thereof when effecting inequities being-subject to review by the appellate eourt. (p. 519).</p> <p>8. Judicial Sales — Confirmation—Bights of Purchaser — Avoidance»</p> <p>Upon the confirmation of a judicial sale the rights of the purchaser become vested. Thereafter nothing except fraud, accident, mistake, or some other cause for which equity would avoid a like sale between private parties, will warrant a court in avoiding the sale or in opening it for other bids. Mere inadequacy of price or tender of a higher bid will not suffice, unless they themselves clearly import fraud, or are accompanied by other facts, or circumstances constituting good cause such as are above stated, (p. 520).</p> <p>.9. Same — Vacation of Confirmation — Decree.</p> <p>The decree setting aside tlie confirmation should clearly set forth the facts relied on as good cause warranting a resale, and generally it is not sufficient to use the indefinite phrase, “good cause appearing.” (p. 520).</p> <p>10. Same — Confirmation—Avoidance.</p> <p>The general rule that courts have control of decrees during the term at which they are rendered does not confer power to avoid confirmed judicial sales except for such cause as is mentioned in a preceding point, (p. 521).</p> <p>11. Same.</p> <p>The only effect of this rule on judicial sales is to enable courts to consider alleged reasons for avoiding them during the tom on motion or order to show eause after due notice without requiring formal bills for that purpose, (p. 521).</p> <p>32. Case Overruled.</p> <p>Statements in National Bamfc of Kingwood v. Jarvis, 26 W. Va. 785, and 2S W. Va. 805, are overruled in so far as they are inconsistent with this opinion. (p. 521).</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill by J. Bowan Knotts against Fred W. Bartlett and others. Decree for defendant Bartlett, and plaintiff appeals.</p>

<p>1. Corporations — Trust Deeds — Foreclosure—Waiver.</p> <p>A majority of the bondholders, constituting a majority also of the stockholders of a coal mining corporation, whose bonds are secured, by a trust deed upon the company’s property, providing for the payment of interest on such bonds semi-annually, and for the creation of a sinking fund to meet their payment when due, and further providing that the trustee shall sell the property upon written request of the holders of a majority of such bonds, if default is made in payments of interest and allowed to continue for a certain length of time, and also further providing that such company may lease its property, in case there is no default, with the consent of the trustee evidenced by his uniting in the lease or otherwise, by making a parol lease of such property at a time when a default existed, to which lease the trustee consented, and by putting the lessee in possession with the understanding had with him at the time that the lease would be formally executed by the corporation and delivered, as soon thereafter as a stockholders’ and directors’ meeting could be had, waive their right to demand a foreclosure of the trust deed as against such lessee, (p. 545).</p> <p>2. Banns and Banking — Agency—Cashier.</p> <p>Where the trustee in such deed of trust, is at the same time one of the directors of such coal corporation and also cashier of the bank holding a majority of the bonds and acts in conjunction with the president of such bank, who is also president of such company, acting in good faith in doing what he believes to' be for the best interest of the bank, acquiesces in such lease, he will be treated as the bank’s agent, duty authorized to act on its behalf in the premises, and, by his acquiescence, estops himself and his principal from denying his agency, (p. 545).</p> <p>3. Corporations — Principal and Agent — Agency—Presumption.</p> <p>A corporation, whose principal officers knowingly accept the benefit of services performed by one who assumes to act as its agent and whose officers hold meetings pursuant to previous arrangements- made by such an one, for the purpose' of effecting a lease of the company’s jiroperty to another person', is presumed to' have employed the person assuming to act for it, as its agent,, and- is lound by Ms acts, performed within’ the' legitimate scope of his implied authority, (p. 545).</p> <p>4. Specific Performance — Lease of Coal Mime — Parol Agreement.</p> <p>The lessee of a coal mine under a parol agreement, the terms of which are clearly proven, entered into by the authorized agents and officers of a coal mining corporation, who has been put in possession of the property by them and has made valuable, permanent improvements thereon, under the assurance that a formal lease, in accordance with the parol agreement, would be shortly thereafter, formally executed by the company, is entitled to have the same specifically enforced by a court of equity, the legal remedy in such case being inadequate, (p. 550).</p> <p>Corporations — Sights of Lessee — Beceivership—Accounting-Compensation. . ÜT</p> <p>. Where, in a suit by the trustee in such case, to oust the lessee and foreclose the trust deed, on the written request of a majority of the bondholders, made after the lease was agreed upon, a receiver has been appointed, over the lessee’s protest, and has operated the mine pending the litigation, and the lessee dually prevails, he is entitled to an accounting by such receiver, and is not chargeable with any part of the compensation properly allowable to such receiver for his personal services as such. (p. 550).</p>

<p>1. TAXATION — Tax Sale — Misdescription in Advertisements — Effect.</p> <p>Misdescription in a sheriff’s advertisement of a tax sale of a town lot, by reference to it by the wrong number, will not vitiate the tax sale and deed. (p. 553).</p> <p>2. Same — Cancellation of Tax Deed — Fraud.</p> <p>A false statement in relation to the land actually purchased, made by the purchaser at a delinquent tax sale, to the former owner, who applies to him for the pui'pose of redeeming within the time allowed by law, and on the truth of which the former owner relies and permits the time of redemption to expire, constitutes a fraud entitling the former owner to a cancellation of the tax deed. (p. 554).</p>

<p>1. Criminal Law — Discharge from Prosecution• — Terms of Court.</p> <p>Under see. 25 of Ch. 159 of the Code, the third imexeused term after the one at which an indictment for a felony was found is countable for the accused, on his motion for a discharge from prosecution, notwithstanding lack of termination thereof at the date of the entry of a nolle 'prosequi, setting him at liberty, (p. 557).</p> <p>2. Same — Want of Probable Cause — Discharge.</p> <p>One in whom such right has so vested is entitled to a discharge from prosecution on a second indictment for the same offense, returned several years after the vesting thereof, such dismissal and reindictment being in contravention of the spirit and purpose of the statute, (p. 557)'.</p> <p>3. Same — -Refusal to Discharge Defendant- — Conviction—Refusal.</p> <p>If, in such .ease, the motion of the accused, for his discharge, fully sustained by the record and evidence adduced, has been overruled and he put upon trial and convicted, the judgment will bo reversed and the verdict set aside, on a writ of error, and the appellate court rendering such judgment as the trial court should have rendered, will sustain the motion and forever discharge the accused from prosecution for the ofíense so charged, (p. 559).</p>

<p>1. Limitation of Action — Suspension During Absence from State — - Application of Statute — Case Overruled.</p> <p>The provision of section 18, chapter 104 of the Code, that-. “Where any such right as is mentioned in this chapter shall accrue, against a person who had before resided in 'this state, if such per-, son shall, by departing without the same * * * obstruct the prose--cution of such right * * * the time that such obstruction may have, continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted” has. ho application to one who was not at the time of the incurrence of the liability nor before nor since a resident of this state. Sef-feTbower v. Detrielc, 27 W. Va. 16, in so far as it holds otherwise: is overruled, (p. 563).</p> <p>2. Same — Suspension—Statute.</p> <p>The departure from this state by one who at the time of incurring an obligation or liability resided here, operates propria vigore an obstruction to the prosecution of such right as is mentioned in said section 18 of chapter 104 of the Code, and upon a plea of tlie statute of limitations the plaintiff, to have the benefit of said statute, is not required to show that he was otherwise obstructed by the defendant in the prosecution of his right, (p. 563).</p> <p>•3. Same — Conveyance of Property.</p> <p>Where a non-resident debtor in fraud of his creditors conveys lands belonging to him in this state, and such creditors promptly institute a suit in equity, upon foreign attachment, to set aside the fraudulent deed, but one of such creditors does not include one of his claims because not then due, he can not be regarded as having been obstructed by such fraudulent deed in the prosecution «f a new suit to avoid said deed and recover his debt not due at the time of the first suit, so as to avoid the plea of the statute ■of limitations, (p. 567).</p>

<p>1. Costs — Independent Action to Becovcr Costs.</p> <p>The successful party in a suit cannot maintain a subsequent independent action to recover the costs of litigation incurred in the necessary prosecution or defense of such suit, where the same were not adjudged to him therein, (p. 571).</p> <p>2. Judgment — Omitting Beoovery for Costs — Bes judicata.</p> <p>All costs properly recoverable by a successful litigant must be recovered in the suit in which they are incurred; otherwise they are barred by the rule of res adjudicate. (p. 571).</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Creditors’ suit by the Brueeton Bank against John Alexander. Dec'ree for plaintiff, and defendant appeals.</p>

<p>Appeal- from- Circuit Court, Randolph County.</p> <p>Suit by John Hutchens and others against Iantha. Denton and others. From a decree dismissing the canse, plaintiffs appeal.</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Habeas corpus by Carrie Nestor against Tburman Nestor and others for tbe custody of a minor child. From a judgment for plaintiff, defendants bring error.</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Suit by A. E. Johnson’s Executors against A. E. Johnson’s Heirs, and others, to judicially determine testator’s debts with petition in the cause by May Irons and answer to petition in nature of a cross-bill by W. E. McClung and wife. Decree for May Irons against W. E. McClung, and dissolving an injunction awarded in vacation restraining the trustee’s sale, and McClung and wife appeal.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by John J. Root, administrator, etc., against William D. Close and others. Decree for plaintiff, and defendants appeal.</p>

<p>Bill for injunction by the Davis Colliery Company and others against the Town of Harding and others. From a decree dissolving preliminary injunction and dismissing bill, plaintiffs appeal.</p>

<p>1. quaere.</p> <p>Query: Is the written admission or accusation to a creditor one partner after the dissolution of the partnership ’that another partner before dissolution fraudulently withdrew his money from the firm assets and conveyed away his land to defraud firm creditors admissible as evidence against such partner in a suit by creditors of the firm against him to set aside his deed? (p. 615).</p> <p>2. Fraudulent Conveyances — Conveyance to Secure Barred Debt— Evidence.</p> <p>Where a debtor in failing circumstances conveys his property to a near relative in consideration of old debts then barred by the statute of limitations, such fact constitutes a strong circumstance tending to show fraudulent intent against creditors whose debts were not so barred, (p. 616).</p> <p>3. Same — Fraudulent Intent — Proof.</p> <p>In a suit by a creditor to set aside as fraudulent a deed made by his debtor the circumstances attending the transaction are often not only sufficient to establish the fraudulent intent but the only available evidence, and it is not essential that the fraud be proved, thereby beyond a reasonable doubt, (p. 617).</p> <p>4. Same — Badges of Frand — Failure to Call Witness.</p> <p>In a suit by a creditor to set aside as fraudulent a deed made by his debtor, the failure of the debtor to call important witnesses to his transaction relating to such deed constitutes a badge of fraud, (p. 617).'</p> <p>5. Same — badges of Frrnd.</p> <p>Circumstances indicating excessive effort to show appearances of fairness or regularity not observed in other transactions by a debtor are to be regarded as badges of fraud, (p. 617).</p> <p>6. Same — Payment of Consideration — Affirmative Defense.</p> <p>Where fraud on the part of a debtor in the conveyance of his property is established, the payment of a full, fair and adequate consideration for the property is an affirmative defense for the purchaser to be established by clear proof, and when payments are large, if unaccompanied by receipts, memoranda or other documentary evidence, the evidence must be clear, positive, be fully consistent with all the evidence offered by Mm and free from.' self-contradiction, (p. 619).</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Separate suits by B. D. Benedetto against Yenanzio Di Bacco and others, and same plaintiff against Salvatore Di Bacco and others. Decrees for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Suit by William Bell against the Kanawha Traction & Electric Company. .Demurrer to plaintiff’s declaration sustained, and he brings .error.</p>

Suit by Walter A. Wetterwald and others against R. J. Woodall. Verdict for plaintiffs, and from judgment setting aside the verdict, they bring error.

Suit by A. M. Prichard, trustee, etc., of S. B. Prichard, deceased, against Henry Lewis Prichard and others. From a decree adjudicating a question for the trustee’s guidance in the administration of the trust fund, defendants appeal.

Suit by Louise E. Keller against K. M. Washington, Mary Cavitt Washington, his wife, and others. From a decree overruling her exceptions to the report of the commissioner appointed to ascertain for court’s information the realty of R. M. Washington, the liens against his estate, and the priorities thereof, and confirming the report, Mary Cavitt Washington appeals.

Action by Albert Vance against Leo Frantz. Judgment for defendant upon a directed verdict in the intermediate court of Kanawha County, and, from a judgment of the circuit court of that county denying a writ of error, plaintiff brings error.

<p>Application by Boyd Adkins and others for licenses to practice law.</p>

<p>1. Appeal and Error — Orders Appealable — Decree.</p> <p>A decree on a bill tiled by plaintiffs who, prima facie, are tenants in common with some of the defendants, charging deeds from those under whom they claim to persons under whom such defendants claim, purporting to .be absolute conveyances of undivided interests, to have been in fact mortgages, and seeking redemption or reconveyances and an accounting for rents and profits, which adjudicates the conveyances to have been absolute, sustains demurrers to the bill, without dismissal, and grants leave to show grounds for an accounting, by amendment of the bill, is not ap-pealable, because it does not settle all of the principles of the cause, (p. 682)..</p> <p>2. Mortgages — Deed as Mortgage — Bill—Laches.</p> <p>A bill to have a deed absolute on its face adjudged to be in fact a mortgage, filed by descendants and successors of the grau-' tors, more than thirty years after payment of the alleged mortgage debt and after the deaths of all the parties thereto, the plaintiffs and their ancestors having been out of possession of the property during all of such period and silent as to the character of the deed, and the question of its true character being dependent largely upon oral evidence, is barred by laches. ’ (p. 683).</p> <p>3. Tenancy in Common — Power to Lease.</p> <p>A tenant in common of oil producing property, having authority from his cotenant to lease it for oil production, without limitation except as to the amount of the royalties to be reserved, conferred upon him by the deed of Iris cotenant, conveying to him his interest in the land, may make a valid parol lease thereof for such purpose, within the limitations prescribed by law. (p. 685).</p> <p>4. Same — Parol Lease — Presumption.</p> <p>One who has been in possession of the property under such authority and conducting operations thereon for many years and accounting for the royalties to the owners, is presumed, in the absence of evidence of a lease by deed, to be a parol lessee, or such status is legally inferable from the facts and circumstances, (p. 685).</p> <p>5. Landlord and Tenant — Parol Lease — Tenancy from Year to Year.</p> <p>Though such a lease is not valid as one for a term of more than five years, by reason of the i^liibition of the statute of frauds, it together with possession thereunder and payment of the royalties, for many years, creates at least a valid tenancy from year to year, terminable, if at all, only by statutory notice and barring any relief by injunction and receivership, until extinguished in some way. (p. 688).</p> <p>6. Judgment — Conformity lo Prayer.</p> <p>Though the pleadings and evidence in a cause having for its purposes those above indicated may show grounds for partition of the land, in some way or to some extent, or a sale thereof in lieu of partition in kind, it is not error to fail to award it by a decree settling the principles of the cause, in the absence of a specific prayer therefor, nor does such failure deny right of appeal from the decree, (p. 688).</p>

Suit by Joseph Ruffner and others, executors, etc., against a<¡. Fontaine Broun and others. From the decree defendants [aria Broun and others appeal.

<p>Error to Circuit Court, McDowell County.</p> <p>Ejectment by the Norfolk & Western Railway Company against Sarah Christian and others. Verdict for defendants, motion for new trial overruled and plaintiff brings error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Ejectment by A. P. Gates and others against Jacob Friedman and others. Demurrer to plaintiffs ’ evidence overruled by the court of common pleas, and judgment for plaintiffs,, and from a judgment of the circuit court, rejecting the writ, of error prayed for by Jacob Friedman, he brings error..</p>

<p>1. Courts— Original Jurisdiction of Appellate Court — Experimental Bate Order.</p> <p>An experimental order entered by tire Public Service Commission fixing the rate to bo charged by a public service corporation for the services rendered by it to its patrons, covering a certain period of time, or until the further order of such commission, is such an order as is subject to control by this Court by the exercise of its original jurisdiction conferred by the provisions of § 16 of ch. 15 O of the Code. (p. 720).</p> <p>2. Public Service Commissions — Experimental Bate Order-Unreasonableness.</p> <p>One seeking to suspend an experimental or provisional order of the Public Service Commission fixing a rate for the purpose of furnishing temporary relief to a public service corporation, as well as for the purpose of securing the evidence necessary to a permanent adjustment of its rates, must show from the evidence heard by the Commission that the enforcement of such order will result in an unreasonable and arbitrary burden upon him. Incidental inequalities which may arise from the administration of such public service company's business under such an order will not be sufficient ground for suspending the same, where it appears that there is reasonable necessity for the evidence which will be gained by such administration in order to properly determine and re-adjust such rates, (p. 720).</p>

<p>1. Sales — Implied Warranties — Merehantalile Article.</p> <p>Where an article of personal property is sold by executory contract by a particular description or name, there is an implied condition or warranty that it will be, when delivered, a merchantable, article of the kind and description sold. (p. 732).</p> <p>2. Same — Breach of Warranty — Measure of Damages.</p> <p>Where in such case the article delivered is of the same general, description as the article sold, but is not a merchantable article-of the kind purchased, the measure of damages for the failure to. furnish such merchantable article of the kind agreed to be furnished to the defendant is the difference between the value of such article, had it been as warranted, and the actual value of the-, article furnished at the time it was delivered, (p. 733).</p> <p>3. Evidence — Breach of Warranty — Evidence of Value.</p> <p>The price at which an article is sold by a regular dealer in the-ordinary course of trade is evidence of its value, (p. 735).</p>

<p>1. Mastek anb Servant — Injury to Servant — Safe Plaee to Work.</p> <p>It is one of the duties of the master to provide a reasonably safe-place -within which his servants may perform the work assigned to them, and having provided sueh place it is likewise his duty to use-reasonable care to the end that the same may be kept in sueh, reasonably safe condition, (p. 743).</p> <p>2. Same — Injury to Servant — Safe Place to Work — Assumption of' Safety.</p> <p>An employe entering the service of an employer has a right to-assume that the employer has performed his duty of providing-a-reasonably safe plaee within which the work such servant is called' upon to do may be performed, unless notice is brought to him of: the failure of the master in this regard, (p. 739).</p> <p>3. Same— Injury to Servant — Safe Place to Work — Ways.</p> <p>Where a carpenter is placed at work upon a building, partially constructed, to perform the work of erecting scaffolding in order that the work may be further carried on and he finds a way provided, when he enters upon the work, for passing from one part thereof to another, apparently for the use of the employee engaged thereon, he has a right to assume that such way has been provided by the master for that purpose, and to assume that it is reasonably safe therefor, (p. 739).</p> <p>4. Same — Injury to Servant — Safe Place to Work — Questions ' of Pact.</p> <p>Where sueh a passage way consists of a plank extending from the top of a concrete wall to the top of a concrete pier about five-, feet distant therefrom, and the surfaces of such wall and pier-upon which the ends of said plank 'rest are more or less uneven.-, on account of gravel and stone projecting above the smooth surface of the concrete, which may cause said board to turn with-one stepping thereon, it will be a question for the jury whether-the master exercised due care in providing sueh a way. (p. 742)..</p> <p>5. Same — Injury to Servant — Instructions—Safe Place to Work. ,-</p> <p>In any case where the question is for the jury to determine .whether the master has provided a reasonably safe place within which the servant is called upon to perform his duties, it is error to instruct the jury that the duty of the master is to provide a safe plaee therefor. Such an instruction is misleading in that,'it imposes upon the master a higher duty than is imposed by law. (p. 743).</p> <p>U. Same — Safe Place to Work — Extent of Master’s Duty.</p> <p>The master has performed his duty to provide a reasonably safe place for his servants when he has exercised reasonable care and diligence to provide such place, (p. 743).</p>

<p>Error to Circuit. Court, Marshall County.</p> <p>Action by Mary N. Compton against tbe County Court of Marshall County? Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Suit by Venora C. Birch against J. E. Covert. Decree for defendant, dismissing plaintiff’s bill, and she appeals.</p>

<p>1. Street Railroads — Operation—Lookout—Warning.</p> <p>A city or interurban railway company operating trolley car3 on traeks laid in a public highway is under a legal duty to maintain a constant and careful lookout for persons using the highway, or approaching or standing by it, with apparent purpose to enter upon it, under circumstances likely to result in injury to them from the progress of a ear; and also, upon seeing any person in such a situation, to give warning of the approach of tho car. (p. 758).</p> <p>2. Same.</p> <p>Upon the approach of such a ear running at a high rate of speed, to a point at which a gate constituting the usual entrance to lesidenee property gives direct and immediate access to the highway from the residence, the space between the railway track and the gate being only about four feet, after having been hidden from view by a curve in the track, it is the duty of the railway company, through its motorman in charge of the car, to keep a close and careful lookout for any person likely to attempt to cross the track from the residence, and, on discovering him, to give warning of the approach of the car, and its failure to do so in negligence, (p. 758).</p> <p>3. Same — Lookout—Passenger Cars.</p> <p>If a ear approaching such a gate in such manner is closely following another on the same track, with knowledge on the part of the motorman in charge of it, that ears ordinarily pass such point at intervals of several minutes, the duty of vigilance and warning is intensified by this circumstance, as well as by -his knowledge that a person standing at the gate or approaching it, if seen by him, has his attention engaged at the time by the preceding car and one going in the opposite direction on another track, (p. 760).</p> <p>4. Same — Crossing Track — Contributory Negligence.</p> <p>The attempt of a person to cross a highway and tracks under such circumstances, after having looked both ways for ears without discovery of the second or following car, it being on the curve and out of the range of vision, and after having waited until the ear preceding it and another .going in the opposite 'direction on another track had passed, does not amount to contributory negligence on his part, as matter of law, he having been struck and injured by the following car, in such attempt, and it having given no warning of its approach, (p. 761).</p> <p>5. Same — Injury on Track — Negligence..</p> <p>Under the circumstances above indicated, the issues as to negligence on the part of the railway company and contributory negligence on the part of the person injured are properly determinable by. a jury, and cannot be withdrawn from it by the court, (p. 761).</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Action by John 'W. Berry against Treva Berry and others. From a judgment in favor of tbe named defendant, plaintiff appeals.</p>

<p>1. Municipal Corporations- — Legislative Powers — Failure to Exercise Permissive Powers — Liability.</p> <p>Where the powers given a municipality or other public authority by legislative action are permissive only and the law imposes no positive duty or obligation to exercise those rights, neither such public body nor one to whoñi .by contract or ordinance such right or power may be delegated can be rendered liable to a third person for damages resulting from the failure to perform the contract or exercise the power granted, (p. 770).</p> <p>2. Same — Legislative Poivers — Failure to Bepair Streets or Boads — - Liability.</p> <p>But where the duty to exercise such power by a municipality or delegated authority is imposed by some positive law or ordinance in the interest of the public or some particular class of persons, as that of keeping public streets or roads in repair, such public authority or delegated person or corporation is liable in damages to anyone injured by a breach of the duty and obligation so imposed. independently of the contract between the immediate parties thereto, (p. 771).</p> <p>3. Street Railroads — Vse of Street-, — Ordinance—Preach of Condition — Liability for Personal Inju/ry..</p> <p>An ordinance of a county cou^-t or other municipality, made by legislative authority, granting on condition's to a railroad company the use of a public road or street, has the force of positive law, and for the breach of the conditions of the grant' a railway company accepting' and using the franchise may be rendered liable to any person injured by non-performance of the conditions, and obligations, so imposed, (p. 772).</p> <p>4. Municipal Corporations — Street Railroads — Streets—Failure ter. Repair — Liability—Out of Repair.</p> <p>If a guard rail or other barrier is reasonably necessary to pro--tect persons traveling over public streets or roads in the ordinary way and with due care on their part, it is the duty of the public authority in charge thereof and of 'the person or corporation upon whom the duty has been imposed by contract or ordinance to. build and maintain such barrier, otherwise such road or street, will be deemed out of repair within the meaning of the statute,, and the public or delegated body may be rendered liable to anyone-injured by the breach 'of its duty imposed by law. (p. 774).</p>

<p>1. PLEADING — Separate Games, of Action^Single Count.</p> <p>A count in a declaration for damages for breach, of contract which alleges a contract of agency with .plaintiff to sell a .tract of land and also a contemporaneous proposition in, writing to seJl and convey the land-to him on terms stipulated and as a means of securing to plaintiff the benefits of his contract, and' also avers a sale of said land upon the terms stipulated and acceptance of the proposition by plaintiff,' is not inconsistent in the averments and does not aver two separate and distinct’causes of action, (p. 781).</p> <p>42. TPrauds, Statute cot — Statement of Consideration — Declarations-—• Sufficiency. ■</p> <p>And where. such contract stipulates a certain price at which said land is to be sold by such agent, or .bought by him and leaves the deferred payments to be agreed upon between seller and purchaser, if the declaration avers that before-acceptance of the ofi fer to purchase, such deferred payments were definitely agreed upon between the parties, and the offer to perfo'rm on plaintiff’s part,; and the subsequent repudiation and refusal’to .perform the contract by defendant, the declaration in respect, thereto is good on demurrer, (p. 781).</p> <p>3. Contracts — Tender—Waiver—Anticipatory Breach.</p> <p>Where one party to a contract.repudiates it and refuses to perform, a tender by the other party is deemed, to, be waived, and right of action thereupon accrues to the injured party for breaeh of the contract by the other, (p. 782).</p> <p>4. Vendor and Purchaser — Breach of Contract to. Convey Land— Declarations — Sufficiency—Acceptance.</p> <p>A count in a declaration upon such a contract which avers acceptance by plaintiff of defendant’s proposal within the time stipulated, is not bad on demurrer because it also avers that after the time for such acceptance he formally accepted the same by letter addressed to the seller. Such averWnt will be construed as averring a confirmation of the previous acceptance alleged to havo been made within the time stipulated in the contract. Such acceptance need not be in any particular form or manner unless required by the terms of the offer; it may be made in any way which will manifest to the seller the unconditional acceptance of his offer. ’ (p. 783).</p> <p>5. Same — Breach of Contract to Convey — Pleading—Acceptance.</p> <p>In such- an action only the ultimate fact of acceptance need be alleged) the particular facts constituting such acceptance may be shown on the trial and need not be set out in the pleading* and the averment in a declaration on such a contract of acceptance thereof implies notice to defendant, (p. 783).</p> <p>5. Same — Breach of Contract to Convey — Pleading—Acceptance— Sufficiency.</p> <p>The averment in a count upon such a contract that plaintiff "duly and properly accepted said proposition” by defendant to sell and convey the land to him, is sufficient to cover the evidential facts required in. proof of the ultimate or primary fact of such acceptance on the trial, (p. 783).</p>

<p>1. Statutes — Construction—Giving Effect to Entire Statute.</p> <p>A statute should bo so interpreted as to give effect to all of its words, if possible, (p. 787).</p> <p>2. Same — Construction—Meaning of Words.</p> <p>General, non-teehnical terms of a statute are allowed operation and effect to the extent of fheir usual and ordinary meaning, .unless restrained by a clearly manifested legislative purpose inconsistent therewith, or some other weighty consideration, (p. 788).</p> <p>3. Same.</p> <p>A merely permissive and unnecessary implication does not along suffice to restrain them. (p. 788).</p> <p>4. Elections — Eegistration Boolcs — Statutes.</p> <p>A special or local statute requiring "registration books" to be. sent to the "polling place," for election purposes, when the law contemplates two such books for each precinct, requires the sending of both registration books, notwithstanding the law governing general elections requires only one to be sent to each precinct, (p. 786).</p> <p>5. Same — Transfer of Voters — Bower of Cleric — Absence of Begis~-tration Boolcs.</p> <p>Although sec. 98a (9) of ch. 3 of the Code requires the sending to eacn precinct of only one of the two registration books provided for it, while the other remains in the clerks office of the-county court, a transfer of a voter cannot be legally made by said clerk, after one of the books of the precinct from which it is to. be made has been lawfully sent from his office for election purposes, but it can be made as long as both books remain in hia office, provided the time be not later than the Saturday next preceding the election, (p 786).</p>

<p>Error to Circuit Court, Summers County.</p> <p>Action by the City of Avis against N. W. Allen. Judgment for plaintiff, and defendant brings error.</p>