Volume 84 — West Virginia Reports

Bill by John Shrader against the Steubenville, Bast Liverpool & Beaver Valley Traction Company. From a decree •dismissing the bill and dissolving a temporary injunction, plaintiff appeals.

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Frank W. Helvey against the Princeton Power Company. Judgment for plaintiff, and defendant brings error.</p>

Ernesto Lemon was convicted of murder in tbe first degree. Tbe conviction was affirmed on error to tbe circuit court, and defendant brings error.

Action by L: G-. Toney, assignee and substituted plaintiff,, against the Sandy Bidge Coal & Coke Company. A verdict for plaintiff was set aside, and plaintiff brings error.

Action by Lowery G. Bowling against the Bluefield-Graham Fair Association and the Tri-State Fair Association, garnishee. Judgment adverse to garnishee was rendered, and it brings error.

<p>1. Frauds, Statute or — Contract—Performance within One Pear.</p> <p>A contract the performance of which neither by its terms nor by necessary implication is to be extended beyond the period of one year and admits of performance within that time, is not within the statute of frauds, (p. 54).</p> <p>2. Same — Contract to he Performed Within One Pear — Evidence.</p> <p>To properly construe such a contract with reference to the statute of frauds the subject matter of the contract, the character of the work contracted for, and the contingencies that may arise during the progress of the work, should be taken into consideration, and if it is possible that the contract may be performed and not be extended beyond a year, it is not within the statute, (p. 54).</p> <p>S. EVIDENCE — Parol Contracts — Certainty—Determination.</p> <p>Where the contract, originally verbal, is subsequently ratified or covered by letters and telegrams between the parties, which describe the subject matter of the contract in general terms, the court in construing the contract may go outside of the writings for the purpose of identification of the subject matter, and if it can be so definitely ascertained, the contract is not void for uncertainty, (p. 55).</p> <p>4. Master and Servant — Contract of Employment — Certainty.</p> <p>If a contract, verbal or written, is one of general employment, or to do a particular kind of work, or is one of permanent employment, and which, the parties could not have intended to run beyond the life of the contracting party or the time when he ceases to properly perform the work, or other contingency likely or possible to occur during its progress, it is not void for uncertainty of time. (p. 56).</p> <p>5. Same; — Contract of Employment — Compensation for Breach — Certainty and Time.</p> <p>The measure of damages for breach of a contract so uncertain in point of time is the sum due the plaintiff for work done under the contract, if any, together with compensation for such future benefits as under all the circumstances would probably have been realized by him in its performance, (p. 57).</p> <p>6. Peincipax, and Agent — Contracts of Employment — Authority of Superintendent.</p> <p>The superintendent of a coal mining operation in charge of the work impliedly has authority to employ and discharge workmen and to make contracts necessary to properly carry on the business of mining coal intrusted to him; but without specific authority he has no implied authority to make a contract to extend beyond a reasonable time, and necessary to the successful operation of the mine by him. (p. 57).</p>

<p>1. Attorney and Client — Disbarment Proceeding — Appeal—Jurisdiction of Supreme Court of Appeals.</p> <p>The Supreme Court of Appeals has jurisdiction of a writ of error to a judgment of a circuit court disbarring or suspending an attorney from the practice of his profession, (p. 60).</p> <p>2. Same — Disbarment—Pule.</p> <p>Where it is sought to disbar or suspend an attorney for misconduct, a rule setting forth the facts constituting such misconduct should be served upon him, in order that he may have an opportunity to prepare his defense, (p. 60).</p> <p>3. Same — Disbarment—Charges.</p> <p>In such a proceeding he can only be tried upon the charges contained in the rule. (p. 60).</p> <p>4. Same — Disbarment—Buie.</p> <p>Where the misconduct charged is that of falsely and fraudulently procuring money from a client, the rule, or some paper therein specifically referred to, should state the facts which it is contended constitute false and fraudulent procurement of the money. A general statement that he procured money by false and fraudulent means is not sufficient, (p. 60).</p> <p>5. Same — Disbarment—Soliciting Employment.</p> <p>A charge in a rule that an attorney solicited employment, without showing that the same was by dishonorable or disreputable means, is not sufficient, (p. 60).</p> <p>6. Same — Disbarment or Suspended Sentence — Solicitation of Employment.</p> <p>Soliciting employment by an attorney will not, under all circumstances, justify his disbarment or suspension. In order to justify such a result, such solicitation must be in a dishonorable or disreputable manner. Where it consists of a mere effort to procure employment in an honorable way for legitimate purposes it is not ground for suspicion or disbarment, (p. 62).</p> <p>7. Same — Disbarment—Evidence.</p> <p>To disbar or suspend an attorney the evidence of the miseon-duet charged against him must be full, preponderating, and clear. (p. 66).</p>

<p>1. Quieting Title — Jurisdiction—Removal of Cloud on Title.</p> <p>Equity has jurisdiction at the suit of the holder of a valid oil and gas lease, to remove as a cloud upon his rights a subsequent lease executed to a stranger by the lessor covering the same tract of land. (p. 73).</p> <p>2. Mines and Minekals — Oil and Gas Lease — Corporations—Tims.</p> <p>An oil and gas lease for a term of one year, and as long thereafter as oil or gas is produced from the demised premises, will not justify operations thereon after the expiration of the specified term of one year mentioned therein, unless within said one year oil or gas has been produced in paying quantities, or unless within such time the lessee has demonstrated that the land is underlaid with oil or gas, and is at the expiration of the time making diligent and efficient efforts to produce it in such ‘ paying quantities, (p. 74).</p> <p>3. Same — Oil and Gas Lease — Operation—-Time.</p> <p>While in such a lease time is ordinarily of the essence of the contract, a proper construction of the language used will not limit the lessee to the particular term mentioned in the lease, where it appears that he has demonstrated that the leased land is underlaid with oil or gas, and is proceeding with all diligence in an efficient manner to produce the oil or gas therefrom in paying quantities. The parties in making such a contract will be taken to have contemplated that operations might be delayed by contingencies not easily foreseen, and to have meant that the lessee’s right would not be terminated if he was by such unforeseen contingencies prevented from producing oil or gas in paving quantities within the specified term. (p. 74).</p> <p>4. Same — Oil and Gas Lease — Operation—Time—Estoppel.</p> <p>Where the lessor in an oil and gas lease, by his conduct and by accepting benefits thereunder, leads the lessee to believe that he will not insist upon the production of oil in paying quantities within the specified term provided in the lease as a condition of the right of the lessee to continue such production, he will not, on the expiration of such term, be allowed to say that the lessee’s rights are at an end, where the lessee is at such time diligently ■prosecuting the work of exploration in such manner as may reasonably be expected to produce oil or gas from the premises in remunerative quantities, (p. 74).</p>

<p>1. Perries — Ferry Fates — Challenge to Jurisdiction of Tribunal — Interest.</p> <p>A patron, of a ferry has such an interest in a proceeding to increase the rates of ferriage thereat as gives him the right to challenge by appropriate proceeding the jurisdiction and authority of the tribunal attempting to increase such rates, (p. 82).</p> <p>2. Prohibition — Public Service Commission — Excess of Authority— Violation of Constitution.</p> <p>The writ of prohibition will lie against the Public Service Commission of West Virginia where it is attempting to act in a quasi judicial capacity in excess of the authority conferred upon it, or in violation of some provision of the Constitution, (p. 83).</p> <p>3. Perries — Eegulation—Jurisdiction—Constitutionality of Statute.</p> <p>That part of the Public Service. Commission Act conferring upon the Public Service Commission authority to prescribe rates of toll for ferries operating in this state is not in violation of 5 24 of art. 8 of the Constitution.</p>

<p>1. Criminal Law — Rulings on Continuance — Discretion—Review.</p> <p>The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made. (p. 87).</p> <p>2. Same — Motion for Continuance — Absent Witnesses — Ruling.</p> <p>Where a motion for a continuance in a criminal case is based upon the absence of a material witness, and it appears from the record that the evidence of the absent witness was merely cumulative, or that his deposition might with reasonable effort have been taken before the trial, though he could not be present thereat, it is not error to refuse a continuance, (p. 87).</p> <p>3. Same — Refusal of Continuance — Prejudice—Reversal.</p> <p>But if the trial is ordered to proceed in disregard of the motion, and results in a judgment adverse to the party who asked for the continuance, and from the whole ease it seems reasonably apparent that he was entitled thereto, and that its refusal has worked injury and prejudice to his rights, such adverse action ordinarily is deemed sufficient cause for the reversal of the judgment so obtained, (p. 87).</p> <p>4. Same — Motion for Continuance — Absence of Witness — Affidavit.</p> <p>An affidavit in support of a motion for a continuance in a criminal case based upon the absence of a material witness, whose presence is deemed necessary to the full and proper presentation of affiant's case, must state the name of the witness, and show that due diligence has been exercised to secure his, presence at the trial, and that there is a fair, probability that his presence or deposition can be secured for a later term; must state with reasonable definiteness the substance'of the testimony the witness is expected to give at the trial to enable the court to detennine its materiality and the necessity of his presence, and show that he cannot prove .'the same facts by any other witness in attendance, and cannot safely go to trial in the absence of the witness desired. Affiant may be required to submit to cross-examination upon the facts therein averred, (p. 87).</p> <p>5. Burglary — Breaking and Entering of Freight Car — Ownership— Broof.</p> <p>Proof establishing complete, though temporary, control and custody by á railroad company of a freight car and its contents is sufficient to support an allegation of ownership in such company in an indictment charging breaking and entering, or entering without breaking, such car with intent to steal, and the actual as-portation of, its contents, (p. 90).</p> <p>6. Same — Breaking and Entering of Freight Car — Variance.</p> <p>- Between the averments of an indictment for the burglary of a -freight car and proof showing the burglary of a box car containing. the freight stolen there is no such variance as warrants the award of a new trial, (p. 92).</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action of unlawful entry and detainer by Milton Curtis against Thomas Meadows. Verdict and judgment for defendant, and plaintiff brings error.</p>

<p>Bill by Floyd Jackson against Ralph C. Jiackson and others. Demurrer to bill overruled, and question ■ certified.</p>

<p>4ppoal from Circuit Court, Marion County,</p> <p>Bill by Lawrence S. Schwenck, trustee, etc., against-Am-brose I). Hess, Malissa A, Hess, and others, consolidated with bill by Bank of Mannington against the same defendants. Decree for plaintiff in ea.ch ease, and Malissa A. Hess, defendant in each ease, appeals.</p>

<p>Error to Gi rcuit Court, Lewis County.</p> <p>Action by R. B. Bartlett against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Indictment and Information — Former Conviction — Identity of Party — Allegation.</p> <p>Where an indictment for a felony alleges a former conviction and confinement in the penitentiary, as provided in section 23, Ch. 152, Code, it is sufficient if the indictment avers the former conviction with such particularity as reasonably to indicate the nature and character of the offense, and identifies the person subsequently indicted as the person then convicted. The latter requirement is sufficiently met where the indictment, after setting forth the former conviction of D. G., describes the person now indicted as "the said D. G., having been so convicted of felony as aforesaid." (p. 130).</p> <p>2. Criminal Law — Indictment and Information — Former Conviction —Allegations—Burden of Proof.</p> <p>Nor need the indictment contain an averment that the former conviction has not been vacated, set aside or reversed. If such be the case, the burden rests upon accused to establish the fact by proof offered upon the trial, (p. 130).</p> <p>3. Same — Receiving Stolen Goods• — Knowledge—Evidence.</p> <p>Upon the trial of an indictment for buying or receiving stolen property, knowing it to have been stolen, such knowledge is an essential element' of the offense,- and, as' bearing upon that question, evidence of the conduct and statements of defendant in reference to stolen property in his possession and explanatory of the reason and character of such possession, if made while such possession continues, and especially if offered at a time when he is first called upon, by the circumstances of the case to make such explanation, is admissible both for and against Mm. (p. 134).</p> <p>.. -4. Same — Knowledge—Evidence. ■ ■ .</p> <p>. . The theory of the admissibility of such evidence is that the statements which accused has made characterizing or describing his possession, while it continued, partake to some extent of the " -nature of an explanation of the circumstances connecting Mm with the criminal act. (p. 134).</p> <p>5. -Explanation — Weight of Evidence.</p> <p>The jury may accord to such evidence the weight they may deem it "entitled to when considered in connection with other facts and circumstances proved upon the trial, (p. 134).</p> <p>6. Samis — ■Bill of Exceptions — Signature.</p> <p>A bill of exceptions must be' signed by the judge of the trial court, else the matter it contains cannot be considered in the appellate court, (p. 13S).</p> <p>(Miller, President, absent).</p>

<p>1. Appeal and ERROR — Explosives—-Evidence—Question for Jury— Verdict.</p> <p>Where the testimony of witnesses in respect to the manner in which frozen nitro-glyeerine was being thawed, preparatory to shooting an oil well, which exploded causing the death of plaintiff’s intestate, one of such witnesses testifying that it exploded while suspended in a barrel of water into which a steam pipe was inserted and the steam turned on, which was admittedly negligent, and another, the expert who had charge of the nitro-glycerine and was employed by defendant to shoot the well, testifying that he' laid it carefully on the ground, and did not put it in the barrel, the question of negligence is for the jury to determine from the conflicting evidence and the physical results produced by the ex-, plosion, and, unless such physical results are of such conclusive character as to demonstrate the falsity of the testimony of one or the other of said witnesses, the verdict should not be- disturbed, (p, 140).</p> <p>■2. Trial — Discretion of Trial Court — Experiment.</p> <p>The' trial court may, within its discretion, grant or refuse permission to make an experiment in the presence of the jury, for the purpose of demonstrating the falsity of certain testimony, (p. 148). .</p> <p>3. Companion Case.</p> <p>The points of the 'syllabus in Merrill v. Marietta Torpedo Co., 79 W. Va. 669, approved, (p. 148).</p> <p>■ (Miller, President, dissenting"). '</p>

Monroe H. Baker and Burns Cottrill were jointly indicted for buying and receiving stolen goods, and defendant Baker 'was tried separately and convicted, and be brings error.

<p>1. Partition — Sill—Sufficiency.</p> <p>In a bill for partition, it suffices to allege facts from which the state of the title to the property, the number of owners and their respective interests appear by necessary implication. There need not be formal allegations of the seizin of the parties interested and the shares to which they are entitled, (p. 160;,</p> <p>2. Same — Infant Defendant — Guardian.</p> <p>The' guardian of an infant party to such a suit is not a necessary party, even though sale of the property is necessary to effectuation of the partition, (p. 361).</p> <p>3. Same — Necessary Parties — Husband of Defendant.</p> <p>Nor is the husband of a female coparcener a necessary party to such a suit, unless he has some interest in the land other than his contingent right of curtesy, (p. 361).</p> <p>4. Same — Parties—Sien Creditors — Trustees’ Deeds of Trust.</p> <p>Lien creditors of the eotenants, holding liens on the whole of the property, or of one or more of them, holding liens on one or more undivided interests, are not necessary parties to such a suit, nor are the trustees in deeds of trust creating such'liens, or mortgagees not in possession, (p. 361).</p> <p>5. Same — Parties—Sale—Statute.</p> <p>See. 3 of eh. 79 of the Code authorizes a sale, in a partition suit, of property insusceptible of convenient division in hind, when such sale will be promotive of the interest of the owners, subject to the liens thereon, if any, except in the ease of the inter'est of a deceased cotenant on which there are liens, and contemplates such sale, wherefore lien creditors of living cotenants are' never necessary parties, unless there are circumstances pertaining to the liens, which constitute an impediment to a fair sale. (p. 163).</p> <p>6. Same — Lien Debts — Assumption by Purchaser.</p> <p>In such case, the purchaser does not assume the lien debts. He merely takes the property subject to the debts, (p. 163). . ■</p> <p>7. Same — Proceeds of Sale — Distribution.</p> <p>If one of two coparceners has encumbered his interest, the court, in distributing the proceeds of sale, may decree to the other an amount out of the proceeds equal to the debts ;on the eneum-bered share and then divide the residue thereof equally between them. (p. 165).</p> <p>8. Same.</p> <p>The allowance to the owner o£ the unencumbered share, to equalize him, may be made out of the cash payment, if sufficient, when only a part of the purchase money has been paid in cash. (p. 165)</p> <p>9. Same — Beport of Commissioners — Sale—Decree.</p> <p>In the absence of evidence to the contrary the report of commissioners appointed to make partition, saying the interests of the parties will be promoted by a sale of the property, after having found it to be insusceptible of division in kind, justifies' a decree of sale, (p; 165).</p>

<p>Appeal from Circuit Court, Harrison. County.</p> <p>Suit by Ernest P. Bramer and others against J. Benjamin Bramer and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. Public Lands — Patents to Entrymen — Constitutional Law.</p> <p>The several Acts of the Legislature providing for the issuance of patents to entrymen who, prior to the formation of this State, had made entries and surveys of- lands included within its boun- ' daries, under the laws of the State of Virginia, are not in violation of any óf the provisions of the Constitution, (p. 177).</p> <p>2. Same — Patent Procured by Fraud — Cancellation—Sale for Benefit of School Fund.</p> <p>Where such a patent was procured by fraud, or without compliance on the part of the patentee with some of the material requirements of the law, such patent might be cancelled and annulled upon a bill in equity tiled by the State, or by any other interested party for that purpose, but until the same is so cancelled and annulled such land cannot be proceeded against to subject the same to sale for the benefit of the school fund as waste and unap* propriated. (p. 181).</p> <p>3. Same — Patents—Suit to Cancel — Limitation.</p> <p>A suit for the purpose of cancelling such a patent must be brought within ten years from the date thereof, and this Statute of Limitation applies to a suit brought for that purpose by the State, as well as to one brought by an individual whose interests are involved, (p. 181).</p>

Suit by John S. Farr against J. S. Weaver and others to force a mechanic’s lien. Objections to answer overruled, and objection to filing of replication sustained and cause certified.

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by the Carlsbad Manufacturing Company and others against J. M. Kelley and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, '.Randolph County.</p> <p>' Action by the J. E. Poling Company against Huffman & Frost. Judgment for defendant, and plaintiff brings error.</p>

Suit in Equity by S. H. Watring against Virginia S. Gib-sonj and husband, to recover for shortage' in quantity of standing timber paid for, and to enjoin defendant’s action at law. Decree for defendant as to shortage, and for plaintiff against defendant Virginiá S. Gibson,' and plaintiff appeals.

<p>1. Counties — Interest on Funds — Construction of Statute.</p> <p>The provision of see. 9, eh. 84, Acts, 1915, see. 55, eh. 39, Code, relating to interest on public funds deposited in county depositories, and saying "All such interest shall be credited to the general county fund by the clerk of the county court and treasurer/’ includes interest' accruing on and arising from the proceeds of sales of bonds issued on behalf of magisterial districts for the purposes of permanent road improvement, (p. 214).</p> <p>2. Same — Boad District Bonds — Interest on Deposited Funds— Statute.</p> <p>The provision of see. 28, eh. 66, Acts, 1917, sec. 29, ch. 43, Barnes’ Code, 1918, relating to publie roads and saying, "The interest accruing from the deposit of funds derived from the sale of road district bonds in any and all county depositories shall be credited to the district road fund by the sheriff of the county,” impliedly amends sec. 9, ch. 84, Acts, .1915, sec. 55, eh. 39, Code, and requires interest on the proceeds of district road bonds to be credited to the respective road funds of the districts on behalf of which such bonds have been issued, whether issued and sold before or after such amendment became effective, (p. 214).</p> <p>3. Same — Boad District Bonds — Interest—Statute.</p> <p>Nothing in the nature of the interest arising from the deposited proceeds of such bond sales constitutes ground of a legal presumption of legislative intent to except it from the operation of the terms of the statute, expressly including it. (p. 214).</p> <p>4. Same — Boad District Bonds — Proceeds—Interest.</p> <p>Nor is there any difference between interest arising from proceeds of sales of district road bonds deposited before the amendment became effective, constituting ground of an implied exception from the operation of the plain terms of the amending act. (p. 215).</p> <p>5. Same — Boad District Bonds — Interest—Betroadive Statute.</p> <p>So interpreted, the amending act is not retroactive. It operates only upon interest accruing after it became effective, (p. 215).</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by D. E. Lutz against J. E. Williams and others. Judgment for plaintiff, and the People’s National Bank of Elkins brings error.</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Bill by Carrie A. Cowberd against O. J. Fleming and others. From a decree for plaintiff, defendants appeal.</p>

<p>Error to Circuit Court, Nicholas County.</p> <p>Action by Fairbanks, Morse & Co.' against A. N. Breck-inridge. Judgment for plaintiff, and defendant brings error.</p>

Suit for injunction by J. A. Fox against the City of Hinton, Virginia-Western Power Company, and others. Temporary injunction made permanent with mandatory injunction compelling defendant power company to remove its poles, and defendants appeal.

Assumpsit by Harry P. Jones- against the Main Island Creek Coal Company. Issue on plea in abatement submitted to court upon an agreed statement of facts, and judgment for defendant, and plaintiff brings error.

Action for malicious prosecution by Xen McNair against J. E. Erwin and others. Judgment for plaintiff, and defendants bring error.

<p>1. Eminent Domain — Change of Street Grade — Damages.</p> <p>If a street, reasonably suitable for use as a highway, be opened and used upon the natural surface as a grade line, and it is recognized and treated by the municipality as a public street, and • owners of lots abutting thereon build with reference to such natural grade before the adoption of a paper grade line by the municipality, such natural grade becomes the established grade, and the municipality will be liable to lot owners for damages resulting from the change of grade, (p. 258).</p> <p>2. Same — Change of Established Grade — Damages—Subsequent Improvements.</p> <p>Though an owner of a lot abutting on such a street purchased it after the municipality had established a paper grade line, but before actual physical grading conforming the street to that line, that fact will not preclude his recovery for damages to his lot when the natural grade is so altered; but he cannot recover for damages to buildings or other improvements or accessories erected after the adoption of such paper grade and in disregard thereof. (p.259).</p> <p>3. Adverse Possession —Streets—Encroachments.</p> <p>However long continued, encroachments on a publie road or street by an abutting lot owner, in this case steps leading to his property, will not confer title by adverse possession or prescriptive right thereto in any part of the thorofare, the right of the pub-lie to remove such encroachments being superior to that of the lot owner to maintain them. (p. 260).</p> <p>4. .Municipal Corporations — Eemoval of Obstructions in 'Street-Liability to Abutting Owner.</p> <p>Begardless of ownership of the fee subject to the easement of a public road or street, the public authorities may remove or cause the removal of any such obstruction, without liability to the owner of the abutting property, where such removal is necessary for the reasonable accommodation of the publie, or in carrying out any system of street improvements, provided it is exercised prudently and reasonably, not willfully or arbitrarily, (p. 260).</p> <p>5. Eminent Domain — Changing Grade — Measure of Damages.</p> <p>The true measure of damages to property abutting on a public street, occasioned by a change in the grade thereof, is the differ-enee between the value of the property immediately before, and its value immediately after, the street improvement, special or peculiar, but not general, benefits to the property being considered and included in the latter value. ( p. 262).</p> <p>6. Same — Change of Grade■ — Damages—Special Benefit.</p> <p>Where the grading and paving of a public street have specially benefitted and improved an abutting property, in addition to the general benefits shared by it in common with other properties similarly situated by reason of such grading and paving, the jury in determining the value of the property immediately after the improvement should consider and include therein the value of such special benefits, (p. 262).</p> <p>7. Same — Change in Grade — Barden of Proof — Special Benefits.</p> <p>The burden of proving special benefits rests upon the party charged with the damage, (p. 262).</p> <p>8. Same — Change in Grad,e — Damages—Evidence—Instruction.</p> <p>Where, as a result of the grading and paving of a public street, an abutting property owner is entitled to recover for an injury done to his lot, but not for that done to the buildings or other improvements or accessories thereon, evidence of the 'damages to be recovered should be clear and specific, and carefully distinguished from those which the jury are not to consider; and, to that end, questions directed to witnesses testifying to the impairment of value should specifically limit the answers to the value of the lot alone exclusive of the buildings or other improvements on it. (p. 266).</p> <p>0. Same — Change in Grade — Damages—Elements.</p> <p>As an element in determining the damages sustained, plaintiff may show the cost of those alterations in his property, by way of adjusting it to the new grade of the street, which are necessary to preserve it from further injury and render it fit for use and enjoyment. But such evidence must be considered only in subordination to the rule governing the measure of damages, and as an e’e■ment in determining the amount to which the owner is entitled, (p. 266).</p> <p>10. Same — Change in Grade — Damages—Cost of Detaining Wall.</p> <p>The cost of a retaining wall, when rendered necessary to protect the property from further injury and fit it for use and enjoyment, may properly be considered, subject to the conditions mentioned above, (p. 268).</p> <p>■11. Same.</p> <p>: In the absence of evidence to show the consent of the city to the erectiou of a wall on its property, evidence of the necessity aril cost of such .wall should relate to one erected on plaintiff’s own property, and not on that of the city. (p. 268).</p>

Bill for mandatory injunction by M. M. & D. D. Brown against the Western Maryland Railway Company. Prom; a decree dismmissing the bill on demurrer, plaintiffs appeal.

Action of unlawful entry and detainer by Green Smith against the New Huntington General Hospital. Judgment for defendant on a directed verdict, writ of error denied by circuit court, and plaintiff brings error.

<p>1. PARTNERSHIP — Relation.</p> <p>The voluntary association of two or more persons for the purpose of uniting their means, skill and labor to carry on a legal business, or perform a legitimate work, constitutes them a partnership. (p. 289).</p> <p>2. Same — Expressed or Implied Intention.</p> <p>A partnership, as to the parties thereto, springs from their intention, which need not be expressed in writing, but may be by oral agreement, or may be implied from their conduct and dealings with one another, (p. 289).</p> <p>3. Same — Partnership Agreement — Presumption and Burden of Proof.</p> <p>A partnership being established, the presumption is that the partnership agreement is in accordance with the general rules of partnership law, and casts the burden of proof on that partner who asserts that another partner’s interest in the profits of the business is not determinable according to such rules, (p. 289).</p> <p>4. Same — New Members — Consent.</p> <p>A new member may be taken into an existing partnership with the consent of all its members, (p. 289).</p> <p>5. Same — Secret Contract by One Partner — Validity.</p> <p>One partner cannot make a secret contract with a third person disposing of a portion of the prospective profits of the joint enterprise for his own private benefit, which will bind the partnership, (p. 290).</p>

Bill by tbe State of West Virginia, by the Commissioner of School Lands of Marion County, for the sale of land, with answer by Kate Preston Haymond and others, claiming a right to redeem and answers by J. Walter Barnes and others, by Harry Shaw, and by the Fairmont, Morgantown & Pittsburgh' Railway Company.

Suit by B. K. Given and others against the United Fuel. 'Gas Company and others for the cancellation of a deed granting a right of way for a pipe line and for other relief. From ■a decree dismissing the bill as against the named defendant, plaintiffs appeal.

Certified Question from Circuit Court, Ritchie County. Bill for divorce from bed and board and for perpetual separation by S. A. Bell against Jennie E. Bell. Special plea in bar and estoppel was rejected on plaintiff’s objection, and the question of its sufficiency was certified pursuant to Code 1913, c. 135, §1 (sec. 4981).

Original mandamus pursuant to statute, by the State, on the relation of the Monongahela Valley Traction Company, to' remove William Beard, Special Judge, elected to preside at the trial of a ease against relator.

Suit by James Kay against the Piney Coal & Coke Company, William D. Boyer, and others. Decree for plaintiff in part, with holding that defendant Boyer was the owner of certain stock as between himself and plaintiff, and plaintiff appeals.

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit for injunction, by W. H. Abner against J. M. Young and others, and J. E. Kendall and C. W. Fisher, at first defendants but afterwards coplaintiffs, with answers in nature of cross-bills by defendants J. M. Young and others. From a decree .dissolving an injunction awarded to Ahner, canceling a deed to Kendall and Fisher and their lease to Ahner as clouds upon the title of defendants, and directing an accounting and referring cause to a commissioner, Kendall and Fisher appeal.</p>

<p>1. Constitutional Law — Remainders—Sale of Interest of Unborn Remaindermen — Constitutionality of Statute — Due Process of Law.</p> <p>The legislature had the power to enact sections 24b (1) — 24b (12), ch. 71, Barnes' Code 1918, providing for the sale or lease of lands in which are contingent remainders in persons yet unborn, w'here all persons in being who have any vested, contingent or expectant estate or interest, either at law or in equity, are ' made parties, and the proceeds of the sale or lease are substituted for such land, giving to all persons the same estates or interests in such proceeds as they had or would have had in the land itself. Nor does such sale deprive the unborn remaindermen of their property without due process of law. (p. 353).</p> <p>2. Remainders — Sale of Contingent Interest — Protection of Proceeds.</p> <p>It is, however, the imperative duty of the court having jurisdiction of such a cause and of the parties in being interested in the subject matter thereof to provide ample protection for the proceeds of the sale or lease as the necessities of the case may demand for the protection of all persons concerned, whether bom or unborn at the date of such sale. (p. 353).</p> <p>3. Same — Sale of Contingent Remainders — Interest of Unborn Re-maindermen — Protection.</p> <p>Where the parties named in a suit to sell lands in which are contingent remainders in persons yet unborn include the trustee, representing all interests, the life tenants whose unborn children are contingent remaindermen in fee in the land, and an infant son of one of the life tenants, who is of the same general class as the unborn children, such parties sufficiently represent and protect the interests of the contingent remaindermen yet unborn, (p. 353).</p> <p>4. Same — Contingent Remainders — Sale—Jurisdiction.</p> <p>Though section 24b (1), ch. 71, Code, authorizes the circuit court of the county in which such land is situated to decree a sale thereof, a court of common pleas of such county, having concurrent jurisdiction with the circuit court thereof, likewise may exercise such authority, so long as the jurisdictional amount of such latter court is not exceeded, (p. 357).</p>

Bill for partition by Mrs. Dora H. George against John W. Brown and others, in which John W. Brown was permitted to file his petition as administrator, requiring plaintiff to amend, her bill by making the administrator a party, and, on plaintiff’s refusal to amend, the bill was dismissed, and she appeals.

<p>1. Pleading — Demurrer to Amended Declaration — Effect—New Ccmsé of Action.</p> <p>A demurrer to an amended declaration, which makes no reference to the original, challenges only the sufficiency' of the pleading and does not raise the question whether the amendment introduces a new cause of action, which can be raised only by objection of the filing or motion to strike, (p. 370).</p> <p>2. TRIAL — Improper Remarles of Counsel — Instruction to Disregard Remarles.</p> <p>Improper remarks by counsel during the trial and in the presence of the jury are not cause f.or reversal if the jury were prop-, erly instructed to disregard them, and the court is unable to see that substantial prejudice resulted, (p. 371).</p> <p>3. Commerce — Master and Servant — Pipe Line — Worlemen’s Compensation Act — -Worlc Subject to Provisions of Act — Liability— Defenses.</p> <p>Excavation of a ditch by an interstate pipe line company, preparatory to laying a gas pipo, parallel to one of its existing main lines and to be connected therewith, for the purpose of increasing its carrying capacity, is not part of its commercial business, but is work clearly separable and distinguishable therefrom, and in the performance thereof such company is subject, unconditionally, to the provisions of the Workmen’s Compensation Áct, and, if in default, is liable for injury to its servants employed, in such workj caused by the negligence of a fellow servant, and is denied the right of the common law defenses of feEow servant, assumption of risk and contributory negligence, (p. 373).</p> <p>4. Appeal and Error — Harmless Error — Submission of Issues.</p> <p>An error in submitting a pure question of law to the jury is rendered harmless by a correct decision thereof by them. (p. 373).</p> <p>5. Damages — Personal Injury — Excessive Damages.</p> <p>I Twenty-five hundred dollars damages assessed by the jury foi the loss of an eye is not excessive, (p. 376).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the Hurricane Milling Company against the Steel & Payne Company. Judgment for plaintiff, and defendant brings error.</p>

Certified Questions from Circuit Court, Kanawha County. Suit for specific performance by A. C. Lawrence and others • against the Montgomery Gas Company and others.

Suit for partition by Joseph Lively against Frances Jane Griffith and others. Decree for plaintiff nunc pro tunc, and defendants appeal.

<p>Original mandamus by the State, on relation of G-. W. Hatfield, against W. 0. Porter, Mayor etc., and others.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill for injunction by' the Turkey Knob Coal Company -against Walter S. Hallanan, State Tax Commissioner. Decreé for defendant, and plaintiff appeals.</p>

Suit for injunction by S. F. Bonham, who sues, etc, against the City of Charleston. From a decree making perpetual an injunction, the defendant appeals.

Case Certified from Circuit Court, Marion County. Suit for injunction by the .Pittsburgh & West Virginia Gas Company against Elmus P. Richardson. ■ Demurrer to bill sustained, and temporary injunction dissolved, and question as to sufficiency of bill certified.

<p>1. Fish — Game—Woods and Forests — Appointment—Constitutional Provisions.</p> <p>. The act creating the office of Forest, Game and Fish Warden being silent as to the manner of filling the same after the making of the initial appointment thereto, all future appointments to fill said office must be made in accordance with the provisions of section eight of Article 7 of the Constitution, that is, by the Governor, with the advice and consent of the senate, (p. 417).</p> <p>2. Statutes — Contemporaneous Construction ~by Executive Officers.</p> <p>Where a statute is of doubtful' meaning the contemporaneous construction placed thereon by the officers of government charged with its execution is entitled to great weight, and will not be disregarded or overthrown unless it is clear that such construetion is erroneous, (p. 419).</p>

<p>Case Certified from Circuit Court, Ohio County.</p> <p>Action by Thomas Harvey Pollock and others) against House & Hermann. Demurrer to declaration sustained, and question as to correctness of the ruling certified.</p>

<p>Case Certified from Circuit Court, Wood County.</p> <p>Bill by O. M. Brown against W. H. Smith to enforce a aneehanic’s lien. Demurrer overruled, and questions certified •by' the circuit court.</p>

<p>Case Certified from Circuit Court, Randolph. County.</p> <p>Action by the State of West Virginia, for the use of George W. Pingley against D. W. Pingley and others. Demurrer to amended declaration overruled, and decision certified.</p>

<p>Case Certified from Circuit Court, Mason County.</p> <p>V. S. Lynch was indicted for an attempt to intimidate a witness summoned to testify before a grand jury, and by means thereof to obstruct the administration of justice. Motion to quash indictment and a demurrer thereto overruled, and question certified.</p>

<p>1. WATER and Water Oourses — Defendant not Negligent not Liable for Flood Damages.</p> <p>In the absence of some initial or intervening act of negligence on Ms part contributing thereto one is hot liable for damages arising from an act of God, such as an unprecedented flood of waters of great force and volume’caused by a cloud burst at the head waters of a creek or river, (p. 444).</p> <p>2. Same — Hiparían Owner Has Bight to Unobstructed Flow of /Stream.</p> <p>A riparian proprietor has as a general rule the right to have the waters of a stream or water course pass his land in its natural 'flow unobstructed and to render anyone violating or interfering with such right liable to him in damages sustained thereby, (p. 444).</p> <p>3. Same — Hiparían Owner May Construct Barriers to Keep Flood Waters in Stream.</p> <p>The only limitation on such right of a riparian owner is that any other riparian owner may erect barriers or dykes on his own land on the banks of such water course or on the interior of his land for the purpose-of confining flood waters within the natural banks of the stream although such action may result in injury to another riparian owner, (p. 444).</p> <p>4. Same.</p> <p>■ But such limitation upon the general rule will not justify a riparian owner or other person in erecting or placing witMn the channel or banks of such stream any obstruction or barrier which will interfere with the free flow of the waters therein or cause the same to be backed up and to flood the land or property of a riparian owner along such stream, (p. 444).</p>

<p>Execution- — ¡Suit in Equity Sole Remedy Against Property Incapable of Seizure.</p> <p>The remedy given by section 15 of chapter 141 of the Code, to enforce the lien of an execution upon property owned by the judgment debtor not capable of manual seizure, possession and delivery, and sale by the officer under the execution, that is by suit in equity by or in the name of the officer, is exclusive of all other remedies. A judgment creditor cannot in his own name maintain such suit.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Separate suits for injunction by the Pittsburgh & West 'Virginia Gas Company and others against-the Pentress Gas ’Company, the Chartiers Oil Company, and others. Decrees for plaintiffs, and defendant Chartiers Oil Company appeals.</p>

<p>1. Master and Servant — -Master not Liable When His Negligence not Proximate Cause.</p> <p>Though an employer within the terms of the Workmen's Compensation Act fails to avail himself of the benefit of the statute, he is not liable for an injury sustained by an employee in .the course of his employment in the absence of negligence on the part of the former which is the proximate cause of. the injury, (p. 461).</p> <p>2. Same — Master Must Furnish Safe Access to Place of Work.</p> <p>It is the duty of the employer to provide for his employees a reasonably safe place in which to work, and reasonably safe and convenient means of access to the premises and to the places thereon assigned for work. (p. 462).</p> <p>3. Same — Access to Place of Work — Master not Liable for Dangerous Access Beyond His Control.</p> <p>But the scope of this duty generally is limited to the premises owned or controlled by the employer, and does not extend to a place beyond them, unless brought within the scope of employment by an express or implied provision in the contract of employment for its use by the employee in going to and returning from his work. (p. 462).</p> <p>4. Same — When Duty as to Access Seasonably Complied With.</p> <p>Where the only means of ingress to and egress from the place of employment is across a series of railroad tracks adjoining it, but under separate ownership and control, and there is provided for the use of the employees a public crossing, properly guarded, leading to the- premises of the employer and reasonably convenient thereto, the duty of the employer to provide reasonably suitable means of access has been sufficiently complied with, so far as concerns points beyond the boundaries of his premises, (p. 464).</p> <p>5. Same — When Servant Selects Dangerous Boute, Master not Liable.</p> <p>An employee, who for his own personal convenience wilfully disregards ■ such public crossing, and elects to take a shorter route over the railroad tracks, more direct but fraught with more danger than the public crossing, does so at his peril, and, if killed while thereon, no .liability therefor attaches to the employer, though . other employees daily follow the same way with the knowledge and consent of the employer, (p. 464).</p>

<p>Mandamus by the State, on the relation of C. I. Dodd and others, against J. S. Hill, Banking Commissioner, etc.</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Action by Charles E. Carrigan, committee, against William Davis. Decree for plaintiff and defendant appeals.</p> <p>Everett P. Moore and J. B. Allison for Appellee relied on the following propositions and authorities in support thereof : •</p> <p>Whenever thére exists between parties confidence on the ■ one hand and influence on the other, from whatsoever canse they may spring, equity requires in all dealings between them the highest degree of a good faith on the part of him in whom the confidence is reposed. If a conveyance was executed in his favor the burden rests upon him of proving that it was not procured by means of such confidence and influence. It is his duty before accepting it to see that the Grantor has disinterested advice. McClure v. Lewis, 72 Mo. 314; Revett v. Harvey, 1 Sim. & St. 502; Allore v. Jewell, 94 U. S. 506, 24 L. E. 260. This rule is not limited to-those well reorganized cases of confidence such as guardian and ward, attorney and client, &c., but the rule extends to all cases where the relation of confidence exists. Huguenin v. Basley, 14 Vesey 273; Dent v. Bennett, 4 My. & Cr. 269; McCormick v. Malin, 5 Black (Ind.) 509; Taylor v. Taylor, 8 How. 83; Dingman v. Bomine, 141 Mo. 475; Moore v. Moore, 56 Cal. 89; Hall v. Knappenb&rger, 97 Mo. 571; Tracy v. Locket, 1 Oh. St. 58; ..Whitehorn v. Hines, 1 Munf. 557; Wilson v. Oldham, 12 B. tylon. (Ky.) 55; Pome-roy Eq. Jur. (3rd ed.) Vol. 2, par. 947 and cases in note 3 Where persons from mental weakness are likely to be influenced by others, transactions entered into by such persons without independent advice will be set aside if there is any unfairness in them. Harris v. Walmsey, 41 Iowa 671; Allore v. Jewell, supra;< Kilgore v. Cross, 1 Fed.. 578; Williams v. Williams, 63 Md. 371. In Ridgeway v. Herbert, (Mo.) 73 Am. St. Bep. 464, where an infant was dissipated and a spendthrift, and the purchaser a much older man, the court said, “that the plaintiff knew before hand how the money would be dissipated and that the law would not justify that sort of dealing and deeds 'so obtained will be set aside. ’ ’ The same rule is recognized in Schuttler v. Brandfass, 41 W.- Va. 207, though applied to a different state of facts.</p>

<p>Case Certified from Circuit Court, Mason County.</p> <p>Action of debt by the State of West Virginia, suing for the use of the County Court of Mason County, against H. C. Turner and others. Plaintiff’s objection to the filing of defendant’s pleas overruled, and the pleas allowed to be filed, and the question of the right to file such pleas certified.</p>

<p>Error from Circuit Court, Fayette County.</p> <p>Condemnation proceeding by the Gauley & Eastern Railway Company against C. A. Conley and others. Verdict and judgment for defendants, and plaintiff brings error.</p>

<p>Error to Circuit Court, Brooke County.</p> <p>Action by Earl C. Williams against John A. Schehl. Verdict and judgment for plaintiff, and defendant brings error.</p>

<p>1. Dedication — Intent Necessary to Express Dedication and Implied Dedication.</p> <p>The law recognizes two classes of dedications of a street to a city, express and implied, the intent to dedicate being essential to both, though in the latter case it may be shown by acts of the owner justifying the public authorities in believing the intention exists, where they act upon such belief, even though the -owner may never have actually intended a dedication, (p. 515).</p> <p>2. Same — When Not Shown as to Strip Between Property Dine and Building.</p> <p>Dedication being an exceptional and peculiar mode of passing title to'interest in land, the proof thereof must be full and clear; and the acts proved, which it is claimed constitute such dedication, must be inconsistent with any construction other than that of a dedication. Merely building the front of one’s house back from the property line is alone not sufficient to prove intent to dedicate to the public the strip of land between the property lin% and the front' of the house, (p. 515).</p> <p>3. Municipal Corporations — Sight of Abutting Owner to Strip Between Street Line and Building.</p> <p>A municipal corporation cannot prevent tlie use, by its owner, in a lawful way, of a paved strip between the street line and a building set a few feet back from the street, where it is not shown that the strip has become a part of the highway, or that the municipal authorities have so treated it. (p. 516).</p> <p>4. Dedication — When Dedication of Saved Strip Not Shown by Implication.</p> <p>Where the owner oí property abutting upon a city street constructs the building upon his property three and one-half feet back from the street line, and .paves the same in the same manner as the sidewalk is paved, and permits the public using such sidewalk to also use such paved strip between the front of his building and the street line as a sidewalk, he- will not be held to have thereby dedicated the same to the public by implication, unless it be further shown that the public authorities, with his knowledge, exercise acts of dominion thereon indicative of their belief that the same has been dedicated to the public, (p. 516).</p> <p>¡5. Same — Payment of Tax but Slight Evidence to Defeat Dedication.</p> <p>Payment of taxes assessed by a municipality upon a strip of land claimed to have been dedicated to it, while evidence tending to defeat the presumption of a dedication, 'is under most cir-cumstanc-.es, of little probative force, (p. 521) ■.</p>

<p>1. Assumpsit Action of — Plaintiff Must Declare Specially on Executory Agreement.</p> <p>To recover in assumpsit- for tlie breach of an executory agreement creating an agency, plaintiff must declare specially on the-contract. The general counts alone will not suffice, - though they may be used in connection with the special count where occasion-demands.</p>

<p>1. CARRIERS — Should Not Protect Passenger Against Public Officer.</p> <p>Although a carrier is obliged to use reasonable diligence to protect its passengers against unlawful assaults by other passengers, its own servants and third persons, its servants are under no duty to resist or interfere with a known officer in making an arrest of a passenger, unless they know or by reasonable diligence ought to know that the arrest is unlawful; neither are they bound to make inquiry into such known officer's authority, (p. 526).</p> <p>:2. Same — Intoxicating Liquors — When Search Warrant ‘Invalid and no Protection to Carrier Expelling Passenger.</p> <p>A warrant issued’ by a justice of the peace commanding search to be made of a certain passenger train, to ascertain if intoxicating liquors are being carried thereon contrary to law, is not proper evidence to be considered by the jury against the plaintiff in the trial of an action by him against the carrier for his unlawful expulsion from the car. Such warrant is void. (p. 531).</p>

Suit by Pearl McCreery Johnson and others against I. E. Bee and others. From a decree dismissing the bill on final hearing, plaintiffs appeal.

<p>1. Indictment- and INFORMATION — Breaking and Entering Railroad Car- — Indictment—Misjoinder of Offenses — Demurrer.</p> <p>The charge in the second count of an indictment for house ¡breaking and larceny that the defendant “afterwards” without breaking did enter the particular car alleged to have been ¡broken and entered in the first count but referring to the same •■car by number and alleging the' commission of the offense on the •■same day as the offense alleged in the first count, is not bad on ■demurrer for misjoinder of offenses unrelated to the same transaction, and the demurrer is properly overruled, (p. 548).</p> <p>■’2. Same.</p> <p>Nor is the third count in such indictment bad on demurrer for misjoinder of unrelated offenses, which charges the larceny of certain goods not specifically described in either of the two preceding counts but which lays the time on the same day as the offenses charged in the previous counts, (p. 549).</p> <p>-3. Criminal Law — Breaking and Entering Bailroad Car — Harmless Error in Admitting Evidence.</p> <p>On the trial of such indictment the admission of evidence of the possession of other goods by defendant in the same room where the goods alleged to have been stolen were stored, and which the evidence tends to show were also stolen by defendant, does not constitute reversible error, in the absence of evidence showing that defendant was prejudiced thereby, (p. 549).</p> <p>“4. Same — Instruction—Beasonable Doulit.</p> <p>An instruction on the subject of reasonable doubt telling the jury that “what they believe from the evidence as men they should believe as jurors,” many times condemned, is erroneous and may constitute reversible error, (p. 550).</p> <p>-S. Same — Credibility of Witness — Instruction.</p> <p>An instruction'telling the jury that they may believe or refuse to believe any witness is erroneous. An instruction covering this subject should state the law substantially as the one approved in State v. Staley, 45 W. Va. 792. (p. 551). .</p> <p>"&. Same — Erroneous Instruction Cured by Good Instruction.</p> <p>A bad instruction is not cured by a good one properly stating the law of the case, given at the instance of the same or another party to the action, (p. 551).</p> <p>. 7. Same — Abstract Instruction — Refusal.</p> <p>An instruction containing a mere abstract proposition of law not applicable to the facts proven is properly rejected by the trial court, (p. 552).</p>

<p>Appeal and Error — Verdict—Conflicting Evidence — Review.</p> <p>A judgment rendered upon a verdict based upon conflicting oral! testimony will not be set aside by this Court, unless the testimony* so decidedly preponderates in favor of the complaining party as to. indicate that the 'jury were unduly influenced, or were controlled, by passion or prejudice.</p>

<p>1. Equity — Parties Materially Interested in Subject-Matter of Suit Necessary Parties.</p> <p>It is a general rule that all persons materially interested, either legally or’beneficially, in the subject-matter involved in a suit, who are to be affected thereby should be made parties thereto either as plaintiffs or defendants, (p. 564).</p> <p>2. Taxation — In Suit to Cancel Tax Deeds Grantees of Tax Deed Holders Necessary Parts.</p> <p>Where a suit is brought to set aside and cancel certain tax deeds as void, and to have partition of the real estate conveyed thereby, claimed to be owned jointly by the plaintiffs and the defendants, and it appears from the allegations of the bill that after the making of said tax deeds the defendants claiming under them conveyed parts of the real estate to others, such others are necessary parties to'the bill, unless the plaintiffs in their bill adopt such sales and ask for partition only of the residue of the land, and an accounting of the monies received for the part so sold. (p. 564).</p> <p>3. Same — Separate Assessments Against Cotenants Invalid.</p> <p>A tract of land owned by eotenants cannot lawfully be assessed to them separatély by undivided interests, or separately by aliquot parts representing their undivided interests, and a tax sale and deed dependent upon such assessment are void. (p. 565).</p> <p>4. Same — Payment by Tenants in Common on Assessment on Undivided Interests Prevents Forfeiture.</p> <p>The assessment of lands owned jointly to the several owners thereo'f by undivided interests, or by aliquot parts, representing the interests of said owners in the whole tract, and the payment of the taxes under such assessments will prevent the forfeiture of the same to the state for non entry and non payment of taxes, notwithstanding such assessments are invalid’, (p. 565).</p> <p>5. Same — Where Undivided Interest of Cotenants Untaxed for Five Years Fntvre Tract Forfeited to State.</p> <p>If land owned in common is assessed separately toAhe several owners by undivided interests, or by aliquot parts representing such undivided interests, and any such undivided interest or aliquot part representing the same is omitted.from the land books for a period of five successive years, the title to the entire tract will be forfeited to the state, notwithstanding the entry and payment of taxes as to the other undivided interests, (p. 565).</p> <p>6. Tenancy in Common Pwrchape of Tax Title by One Cotenant Inures to Benefit of All.</p> <p>Where the joint owners of a tract of land permit the same t'' be returned delinquent and sold for non payment of the taxes thereon, and it is purchased by one of such joint owners at such sale, such purchase will, be. held, to. be-a redemption of such lands from the delinquency, and the subsequent payment of taxes thereon by such joint owners will.be.for the benefit of all those interested therein, '(p. 565).</p> <p>7.- -Adverse Possession — Void Tax Deed Good Color of Title. '</p> <p>A void tax deed is good color of title both for the purpose of § 3 of Art. 13 of the Constitution, and the Statute of Limitations, (p. 568).</p> <p>8-.' Tenancy in Common — Laps of Time Cannot Bar Bight of Coten-ant Without Ouster.</p> <p>As the possession of one eotenant is the possession of all, laches, acquiescence, or lapse of time cannot bar the right of entry of a cotenant until actual disseisin has been effected by some notorious act of ouster brought home to his knowledge, (p. 568).</p> <p>9.Same — Conveyance of All Property by One Cotenant Not Ouster Barring Other Cotenants.</p> <p>The making of a deed for the whole property by a eotenant to a stranger is not such an act of ouster as will bar the other interested parties from asserting their rights in the land, unless it is shown that actual adverse possession is taken thereunder by the grantee in such deed. (p. 568).</p> <p>10. Same — One Cotenant Cannot Bar Cotenant Without Knowledge of Kostile Claim.</p> <p>To enable one joint tenant or tenant in common in the exclusive possession of land to effect an ouster against his eotenant so as to defeat the right of such eotenant by adverse possession, such cotenant must have had notice or knowledge of such hostile claim. Mere silent possession, however long, by one taking renta and profits, without notice or knowledge of such adverse claim on the part of the other will not render such possession adverse, (p. 568).</p> <p>11. Same — Certain Acts of Cotenant Notice of Adverse Claim. •</p> <p>Where a eotenant in possession of the joint property openly treats the same as his own, by making sales of parts thereof, by selling and, causing to be removed the timber therefrom, and extracting and selling the minerals therefrom, with the knowledge and acquisence of his eotenant, such acts will be notice to such cotenant of a claim adverse to his interest, and if he fails to assert his interest in the land, within the time provided by law he will lose his title thereto, (p. 568).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by J. R. Alford against the Kanawha & West Virginia Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Certified to Circuit Court, Wood County.</p> <p>Suit by Mattie R. Caswell against Cora C. Caswell, deceased, and others, to establish dower and an accounting. Plaintiff’s motions to strike out certain parts of the answers overruled, and the rulings certified.</p>

<p>1. Mines and Minerals — Term “Land” Includes Any Interest Therein.</p> <p>The term ‘'land” includes any interest or estate therein, not a chattel interest, (p. 591).</p> <p>2. Partition — Presumption that Heirs Intended hy Sale to Dispose of All Interest.</p> <p>Where an ancestor dies intestate, seized of lands consisting of several distinct tracts and an interest in the minerals under still another tract, and' some parts of the lands are partitioned in .hind and other parts sold, as not partible, and .the proceeds divided among the heirs pursuant to. decrees in a partition suit, in the absence of any showing to the contrary, the presumption is conclusive that it was the intention of the heirs to dispose of all the lands, and interests therein, of which their ancestors died seized, (p. 591).</p> <p>. 3. Same — Under Partition Sale General Description Covers Mineral Interests.</p> <p>Where it appears that, the ancestor owned a tract of 1000 acres and, in Ms lifetime, had granted certain portions thereof " to others, reserving to himself one-half of the mineral in one of such' tracts, and thereafter joined his grantee in a deed eon' vcving to a third person a large portion of such tract, thereby granting his mineral interest therein previously reserved, and died seized of his mineral interest in the remainder of such tract, and certain portions of his lands are partitioned in lrind and other portions are sold in a partition proceeding- and conveyed to the purchaser by a special commissioner appointed in such suit, under the general description, "the residue” of the 1000-acre tract, such general description includes the mineral interest of the ancestor in the remainder of the tract, (p. 592).</p> <p>4. Deeds — In Construing Deeds Grantor's Intent, if AsoertalnoMe, Governs.</p> <p>In constiuing deeds as well as wills the grantor’s intention is. , of paramount importance, and, if it can bei ascertained from a consideration of the whole instrument, will be given effect,, unless repugnant to some positive rule of law. (p; 592).</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>¿Suit by Elvira Cunningham against Gertrude Dunn and ‘others. Demurrer to bill sustained, and bill dismissed, and ^plaintiff appeals. *</p>

<p>1. LANDLORD and Tenant — Covenant Not to Sublet Not Broken by Assignment of Lease.</p> <p>A covenant is a lease not to sub-let the premises, the terms of which aro not enlarged by anything in the context, nor otherwise, aceomppanied by a forfeiture and re-entry clause, is not broken by an assignment of the lease. - (p. 601).</p> <p>■-2. Same — Short Covenant Against Assignment Does Not Enlarge Covenant Against Subletting.</p> <p>The statute,' see. 21, ch. 72, Code, providing a short and simple -form of covenant against assignment, does not enlarge a covenant against sub-letting, (p.' 603).</p>

<p>1. Corporations — Ratable Contribution by Stockholders Unnecessary to Sale by Corporation of Fart of Stock.</p> <p>Though ordinarily a contract by which a corporation and some of its stockholders, for a valuable consideration moving to the corporation, bind themselves -to a sale of a portion of its capital stock to a stranger, all of which has been issued and is owned by its stockholders, might require ratable contribution by all of the stockholders, of a sufficient number of shares to make up the amount of stock sold,' a sale of stock so made for a consideration moving in part to the contracting stockholders and evidenced by a contract indicative of purpose to bind them to a sale or transfer of the required amount of stock from their own holdings, does not, as a matter of law or equity, require such ratable contribution, (p. 612).</p> <p>2. Same — Noncontracting Stockholders Not Bound to Contribute on Contract of Corporation to Sell Fart of Stock.</p> <p>In such case, participation of a non-contracting stockholder in a stockholders meeting authorizing negotioation of the contract, by a resolution which is silent as to the sources from which the stock is to be obtained, and a meeting of the board of directors at which the contract was ratified and his joinder in a contract pooling practically all of the stock, including his, creating a voting trust, required by the contract of sale, and declaring the deposit of the stock to have been made for the uses, objects and purposes set forth in the contract, do not conclusively bind such stockholder to contribute nor make out a clear case of contract on his part so to do. (p. 612).</p> <p>3. Same — Construction of Ambiguous Contract — Conduct of Forties Considered</p> <p>As to the sources of contribution, a contract so made and evidenced, is ambiguous and indefinite, and, on the interpretation thereof, the acts and conduct of the parties in the application of its terms and carrying them into effect, amounting to contemporaneous or practical construction, are entitled to great weight. (p. 612).</p> <p>4. Same — Evidence Showing Stockholder Not Bound to Contribute — • Sale of Stock by Corporation.</p> <p>The 'issuance of trustee’s certificates to such non-contracting stockholder, representing all the shares originally owned hy him and deposited with the trustee, and acquiescence therein for a period of more than three years, is practically conclusive in his favor, under the circumstances above indicated, (p. 612).</p>

<p>1. COUNTIES — Publication of Order for Bead Bond Election Sufficient.</p> <p>Section 56a. XX Va, chapter 43, serial section 1793, Code 1913, providing lor the posting and publishing thirty days before the poll is taken, orders of the county court providing for the holding of elections for the purpose of taking the vote of the legal voters upon the question of issuing bonds the proceeds of which are to be used in peimanently improving the public roads, considered in the light of a subsequent amendment of said act, and with reference to the decisions of this .court interpreting other statutes on the subject of notice, is satisfied by the publication of such order once a week for four consecutive weeks, and. the contract of the county court for the publication of such order for thirty consecutivo days or of tener than once a week for four consecutive weeks, is illegal and void, and payment of a greater sum than the legal rate for four insertions of such publication should be enjoined, (p. 621).</p> <p>2. Same — Liberal Construction of Statute for Newspaper Publications Adopted.</p> <p>In construing such statue the liberal rather than the technical rule of construction should be applied. (p. 622).</p>

<p>1. Master and Servant — Breach of Contract — Employment-Damages.</p> <p>,One who by himself or conspiring with others induces another to break his contract of employment with a third person, to the injury of that person, is liable in damages for the injury sustained by him, whether the injury done was for the benefit of the wrongdoer or not. (p. 626).</p> <p>2. Appeal and Error — Exclusion of Evidence — Appellate Court — • Evidence.</p> <p>On a motion to exclude the evidence, sustained by the trial court, an appellate court on -writ of error may, if the record discloses it, consider all the evidence including any improperly rejected, in reaching a conclusion on the merits of such motion, (p. 629).</p> <p>3. Corporations — Corporate Agents — Breach of Contract of Employment — Question for Jury.</p> <p>The evidence in this ease as to the authority of the respective representatives or agents of the defendants, and of the company employing the plaintiff, to do the acts complained of, was sufficient to carry the case to the jury on the question of such authority. Bou v. Boyer Smolceless Coal Company, 84 W. Va. 47, 99 S. E. 213. (p. 629).</p>

<p>1. EXCEPTIONS, Bill or — 'Bill Signed Thirty Days from Close of Term Not Considered.</p> <p>A bill of exceptions signed after thirty days from the close of the term of final judgment, though signed by the trial judge and certified, constitutes no part of the record and cannot be considered on a writ of error, (p. 633).</p> <p>2. Thial — Instructions for Plaintiff Not Jlrroneous for Ignoring De--fendant’s Theory.</p> <p>An instruction to the jury based on a theory supported by evidence which would entitle the plaintiff to recover regardless of some distinct and independent theory of the defendant also sup-., ported by some evidence, is-not erroneous for ignoring such theory-of the defendant, (p. 634).</p> <p>3. New Trial — BemarTcs of Counsel in Argument, Not Objected to at the Time, Waived.</p> <p>Remarks of counsel in an argument to the jury, regarded as improper and harmful to the opposite party, should be at once objected to, and the trial court given an opportunity to rule on the objection, and if possible counteract the effect thereof upon the minds of the jury, else the error will be regarded as waived, if afterwards urged as ground for setting aside the verdict and for a new trial, (p. 636).</p> <p>4. Appeal and jBrror — Judgment Not Reversed for Excessive Damages, Unless Prejudice Shown.</p> <p>In actions for personal injuries the amount of the damages is peculiarly within the province of the jury, and unless the amount found is so great or so small as to evince passion, prejudice, partiality or corruption, or some mistaken view of the law, on the part of the jury, its verdict may not rightfully be disturbed, (p. 637).</p>

<p>1. Public Service Commissions — Classification of Public Utility Bates Proper</p> <p>Por the purpose of fixing the rates to be charged by a public utility, it is proper to place its patrons in different classes, and make different rates applicable to such classes based upon the varying cost of the service rendered, (p 643).</p> <p>12. Gas — Light and Seat Corporations Subject to Begulatory Power of Public Service Commission.</p> <p>■ A corporation engaged in the business of supplying gas for light, heat and power to tne inhabitants of a city is subject to the regulatory power of the Public Service Commission, (p. 644).</p> <p>-"3. Public Service Commissions — What Constitutes “Public Service Utility ” Defined.</p> <p>The use which the consumer makes of the commodity furnished does not constitute the test as to whether or not the regulatory powers of the Commission in dealing with public utilities may be invoked. It is the duty which the purveyor or producer has undertaken to perform on behalf of and so owes to the public generally, or to any defined portion of it, as the purveyor of the commodity, or as an agency in the performance of the service which stamps the purvevor or the agency as being a public service utility, (p. 644).</p> <p>4. Constitutional Law — That Legislature Has Designated Certaim Business Subject to Public Service Commission not to be Disregarded.</p> <p>Where the legislature has declared a .certain business subject to regulation by the Public Service Commission, such declaration will not be disregarded by this Court, unless it appears that there is no substantial 'basis for holding that the business is of tha¿ character which is subject to regulation by the Public Service Commission, (p. 644).</p> <p>5. SAME — Public Utilities — Regulatory Power of State.</p> <p>Whenever any business or enterprise becomes so closely and intimately related to the public, or to any substantial part of a community, as to make the welfare of the public, or a substantial part thereof, dependent upon the proper condiict of such business, it becomes the subject for the exercise of the regulatory power of the state, (p. 644).</p> <p>6. Gas — Charges for Gas — Regulation by Public Service Commission:</p> <p>A corporation engaged in the business of supplying gas to the inhabitants of a city for the purpose of light, heat and power, is subject to have the rates it charges therefor to all of its patrons regulated by the Public Service Commission, notwithstanding some of such patrons may be engaged in manufacturing-enterprises. (p. 646).</p> <p>7. Public Service Commissions — Part of Receipts Allowed Yearly for Amortization of Plant.</p> <p>Where the life of a public utility is determined by the exhaustion of the supply of the material which it furnishes to the public, such part of its receipts each year should be allowed for the amortization of the plant as will return to the stockholders their investment within the probable life thereof. (p.'649).</p> <p>S. Gas — Dividends of Natural Gas Company' Treated in Part as Return of Capital.</p> <p>The dividends paid to the stockholders by a natural gas company whose life is determined by the life of the gas fields from which it obtains its supply, eanndt in their entirety be treated as earnings, but such part thereof as will repay to the stockholders their investment within the probable life of the plant must be treated as a return to them of their capital, (p. 649).</p> <p>9. Public Service Commissions — Rate Determined by Misapplication of Law to Facts Reviewed.</p> <p>The business of rate making, being legislative in its character, a rate based upon a fact determined to exist by the rate-making power, will not be reviewed because of an improper finding based upon disputed facts, but where such fact has been determined by a misapplication of legal principles to the state of facts shown, such finding will b§ corrected by applying correct legal principles to such state of facts, (p. 653).</p> <p>10. Gas — New Pipe Lines of Natural Gas Company Investment, and Not Expenses of Operation.</p> <p>Expenditures of a natural gas company for pipe lines from " new wells which will be used during the life of such wells are properly included as an item of investment, and are not properly chargeable as an item of expense of operation, (p. 653).</p> <p>(Lynch, Judse, absent.)</p>

<p>1. Sales — Time of Passing of Title — Question of Intent.</p> <p>The time at which title passes under the terms of a contract of sale is a question of intent to bo gathered from the terms of the contract, the nature of the property, its condition and situation, and the purposes sought to be accomplished thereby, (p. 658).</p> <p>:2. Logs and Logging — Executory Contract — Hale of Timber — Title Does Not Pass Until ¡Severance From Land.</p> <p>A writing purporting to convey the standing timber on a tract of land for a consideration of $4.50 per thousand feet, to be ascertained by measuring the logs after severance, and to be paid for as the same is shipped, and reserving a lien upon the manufactured product for any unpaid purchase money, but reserving no lien upon the standing timber for the purchase price, and giving the purchaser twelve months within which to cut such timber, after which all timber remaining standing shall revert to and become the property of the landowner, properly construed is an executory contract for the sale of such timber, and the title thereto" does not pass until the same is severed from the real estate, (p. 658).</p> <p>'-3. Same — Breach of Contract — Cutting Standing Timber — Recovery of Damages.</p> <p>The provision that the purchaser shall have twelve months within which to cut such timber is a covenant to perform the contract within that time, and in the event of his failure in that regard the seller, if he is injured thereby, will have his action "to recover damages therefor, (p. 656).</p> <p>4. Sxbn^-Heasnre of Damages — Breach of Covenant — Standing Timber.</p> <p>The measure of damages for the breach of such a covenant is the excess of the purchase price over and above the value of the timber not removed at the time of the breach, (p. 661).</p> <p>5. Sales — Method for Determination of Price of Standing Timber Not Removed as Agreed.</p> <p>Where in a contract for the salo of personal property the price to be paid is to be determined by applying an agreed unit price to the number of such units, to be ascertained by measurements to be made at a certain time, and the purchaser by removing or disposing of the property before such measurements are made puts it beyond the power of the parties to fix such purchase price in the manner agreed upon, the seller will be allowed to resort to other evidence to determine the quantity delivered, (p. 661).</p>

<p>1. Electricity — Electric Light and Power Company A “Publio Service Corporation. ’ ’</p> <p>A hydro-electric company, organized in Virginia to .engage in the business of a general electric lighting and power eonrpany and for the sale and disposal of its electric power to the public, and selling its product to customers in this state, is, as to its business transacted within this state, a public service eorporation within the terms of Chapter 15-0, Code of West Virginia. (p. 666).</p> <p>2. Same — Electric Current furnished by Sydro-Electric Company to Industries is a “Public Service.”</p> <p>Where a hydro-electric. company, a public service corporation within the terms of chapter 15-0, Code, by its charter expressly engages to serve the public, and subjects itself unreservedly to the laws and regulations of the governmental power having jurisdiction in the place where it proposes to conduct its business, and its prolonged subsequent conduct is entirely consistent therewith, the electric service rendered by the company to industrial concerns to be used by them for private profit is a public service' within the provisions of the Public Service Commission Act, and subject to regulation by the commission, (p. 666).</p> <p>3. Commerce — Transmission of Electric Current from State to State■ is Interstate Commerce.</p> <p>The transportation or transmission of electric current from' state to state through appropriate instrumentalities is commerce-between the states, (p. 669).</p> <p>4. Same — Interstate and Intrastate Commerce Distinguished.</p> <p>In determining when commerce ceases to be interstate and be-come intrastate, the essential character or unity of the mov&-ment is decisive, (p. 670).</p> <p>5. Same — Transmission bf Electric Current from Seller in One State to Buyer in Another is ‘ ‘ Interstate Comm.oree. ’ ’</p> <p>The transportation or transmission of electric current direet from the seller in one state to the consumer in another, for immediate or practically immediate use, subject only to a temporary stop en route for the purpose of reducing the current to. a commercial voltage, remains interstate commerce until the commodity has reached its goal, unless theretofore sold to independent distributing companies in the latter state for resale to> local consumers, (p. 671).</p> <p>6. Same — Federal Power Exclusive Over Interstate Commerce of National Importance.</p> <p>As to those forms of interstate commerce which are of national importance, and require a general system and uniformity of regulation, the federal power is exclusive, and the state may not act, even if Congress has not exerted its paramount legislative authority as to them. (p. 671).</p> <p>7. Same — State Begulation of Local Interstate Commerce Valid on Non-Exereisc of Power by Congress.</p> <p>But where the subject is of local rather than national importance, admitting of diversity of treatment according to the special requirements of local conditions, the state may exercise its regulatory authority within reasonable limits till Congress acts. (p. 668).</p> <p>8. Same — Begulation by State of Bates for Furnishing Electric Current in Another State is Valid.</p> <p>, The regulation of the rates at which electric current transported or transmitted from one state to another shall be sold in the latter state is, so long as the rate fixed is not confiscatory or discriminatory against citizens of anotKer state, a matter essentially local in its nature, and not of sucli national importance as to require a general system and uniformity of regulation, (p. 674).</p> <p>9. Constitutional Law — Private Contract Rights Must Yield to Consideration of Public Welfare.</p> <p>Private contract rights must yield to the public' welfare where the latter is appropriately declared and defined and the two conflict, (p. 674).</p> <p>1.0. Same — Pates Established by State for Electric Current Not Impairment of Private Pate Contract.</p> <p>Reasonable rates for electric energy, prescribed by a state in the exercise of its police power, through the instrumentalitj' of its Public Service Commission, are not repugnant to the contract or due process of Jaw clauses of the 'federal Constitution merely because, if given effect, they will supersede the rates designated in a private contract between the company and a customer, entered into prior to the enactment of the law creating the Commission, (p. 674).</p> <p>.11. Public Servide Commissions — Findings of Fact Generally not Reviewed.</p> <p>Findings of fact by the Public Service Commission based upon evidence to support them generally will not be reviewed by this 'Court. (678).</p>

<p>1. Dower — Rights Before Assignment in Oil Royalties.</p> <p>Where a husband and wife unite in a lease for oil and gas-,, though no production is had thereunder till after his death,, the widow, is entitled, until assignment of her .dower, tp one-third of the royalty oil and gas well rentals payable under the; lease, and not to the interest only on such one-third, (p. 681).</p> <p>2. Same — Royalties and Rentals of Open Oil Well Profits of Land and Not Corpus of lístate.</p> <p>In such case the well is deemed an "open well" as of the date of the husband’s death, and the royalty and rental therefrom part of the issues and profits of the land, and not a portion of the corpus of the estate to be preserved intact for those entitled in remainder or reversion, (p. 682).</p> <p>3. Same — What are Profits and Corpus of Estate Determined at, Time of Death.</p> <p>In a contest between the widow and heirs for the purpose of' determining what portion of the yield from the real estate of tlie deceased husband shall be termed issues and profits, in which she may share, and what shall be deemed part of the corpus of the estate, it is customary to employ as a basis for such determination the date of the death of the deceased, (p. 682).</p> <p>4. Same — Production of Mines is “Issue and Profits’’ of Estate.</p> <p>The term “issues and profits,” in law, as applied to real estate, comprehends every available return therefrom, whether it arise above or below the surface, and includes the produce of mines as well as the' yield from the surface, provided the mines were opened or authorized to be opened by the owner of the preceding estate of inheritance, (p. 682).</p>

<p>Mandamus by the State, on the relation of Thomas T. Boswell, against Hon. Wm. S. Haymond, Judge, etc.</p>

<p>1. Rewards — Prosecuting Attorney May he Given Authority to Offer Reward Not Over Fired Sum.</p> <p>Pursuant to the authority conferred by section 21, ch. 32-A, Code 1916, upon the prosecuting attorney of a county, with the approval of one of the officers designated by the section, to offer rewards for the apprehension of persons charged with crime, and to expend money for the detection of' crime, it is unnecessary for such approval to be given to each individual claim, but it may take the form of an authorization of a maximum sum for a stated period, beyond which the prosecuting attorney may not go, and subject to the limitation that all expenditures therefrom ■ must be for services rendered, in aid of the suppression of violations of that chapter, (p. 694).</p> <p>S. District and Prosecuting Attorney — May Employ Assistance for Stated Periods or for Particular• Service.</p> <p>Pursuant to the authority so conferred, the prosecuting attorney, within his sound discretion, may employ for stated periods, or for a particular service, (p. 695).</p> <p>5. Counties — On Employment of Assistance Account Must Show Services Rendered and Names of Assistants.</p> <p>When the employment is for a stated period or periods, an account for services rendered sufficiently complies with the provisions of section 1, ch. 14, Acts 1919, if it shows, in addition to the approval of the prosecuting attorney, the kind of service rendered, the dates within which the same was performed, and the name of the person performing the service, (p. 695).</p>

Summers County. Suit for injunction by W. F. Burger and others against T. J. McCarthy and others. Temporary injunction dissolved on final hearing, and bill dismissed, and plaintiffs appeal.

Suit for specific performance by W. A. Kennedy and •others against L. D. Burns and others. Decree for plaintiffs. Prom a decree of the circuit court on appeal, reversing the ■decree below and dismissing the bill, plaintiffs appeal.

Suit for specific performance by Otto Carder' and others against Aaron Johnson and others. Demurrer to bill sustained as to certain defendants, and as respects the named defendant, overruled, and bill dismissed on final hearing, and plaintiffs appeal.

Suit for injunction by Z.' W. Knight against W. Frank Smith and others. From a final decree in favor of named defendant, dissolving the preliminary injunction and dismissing the bill, plaintiff appeals.

<p>1. Criminal Law — Sentence for Fine and Imprisonment Should Direct Work on Public Highways.</p> <p>Section 109, chapter 43, Code 1918, makes it the mandatory duty of the court or justice, where any male person over sixteen years of age is convicted of an offense punishable by fine and imprisonment in the county jail, to also sentence the prisoner to labor on the public roads of the county, and the fact that such court or justice may not have orally included such sentence in pronouncing the judgment of fine and imprisonment, will not affect the judgment and sentence entered of record which does include sentence to work on the public roads, (p. 720).</p> <p>2. Mandamus — Iieturn Conclusive as to Whether Bill of Exceptions Directed to be Signed is True.</p> <p>Upon a writ of mandamus to .compel a trial judge to sign a bill of exceptions, his return is conclusive on the fact whether or not such bill of exceptions as presented is true, (p 720).</p> <p>3. Criminal Law — Dwing Term, Court on Conviction of Misdemeanor May Correct Judgment.</p> <p>In the case of one convicted of a misdemeanor the trial court may during the same term of court 'in the absence of the defendant amend or correct its judgment so as ,to make it record the judgment actually pronounced and which the law requires the court to pronounce, (p. 721).</p>

<p>1. Judgment — Tower of Attorney to Confess Judgment Must State Amount.</p> <p>A power of attorney purporting to give authority to confess judgment must state the amount for which such judgment is to bs confessed, or at least contain facts from which such amount can be definitely ascertained, (p. 724).</p> <p>2. Same — Power of Attorney to Confess Judgment for Amount Due Invalid.</p> <p>A paper purporting to confer authority to confess judgment for such amount as may be found due from one party to another, upon their dealings in the future, is invalid because of the uncertainty and indefiniteness of the amount for which such con-confession of judgment is attempted to be authorized, (p. 724).</p> <p>2. Same — Personal Service Necessary to Personal Judgment in Attachment Suit.</p> <p>. A judgment in an attachment suit where no personal service is hacl upon the defendant therein has no other effect than to reach, the property which the non resident defendant may have .in the state; and after such property is exhausted such judg-'rncnt is of no force or effect, (p. 725).</p> <p>■3L Same — Conolusiveness as to Parties and Privies.</p> <p>A judgment rendered by'a court of competent jurisdiction after service of process upon the parties to be affected thereby is conclusive, not only upon those who are actually parties thereto, •but also upon all who are in privity with them. (p. 7271.</p> <p>5. Same — Not Mes Judicata as to Interest of Third Party Before Litigation.</p> <p>For the purpose of the application of the rule of res judicata to persons because of their privity with the parties to a suit, it enlist appear that the estate or interest of such, a one was a en-quired from or through such actual party after the litigation. If his interest in the cause of action or the subject-matter of the litigation was acquired, prior to the litigation he will not be bound by the judgment, (p. 727).</p> <p>45. Same— -For Money Not Conclusive in Action by Defendant for Debt Not Litigated.</p> <p>A judgment rendered in a suit for the recovery of money 'is not conclusive of the defendant's right to maintain a subse•quent suit to recover a debt claimed to be due to him by the 'plaintiff in the former suit, when such cláim uvas not pleaded or ‘relied upon therein. The adjudication in such former suit where '-the' recovery of money is sought is only conclusive of the matters actually put in issue therein, and such other matters as are defensive to the claim set up, and does not b.ar a suit upon, a different claim which either of the parties may have against the other, (p. 727).</p> <p>7. Trial — Issues Maised by Pleas in Bar Should, be Tried ,Together.</p> <p>Where there is more than one issue upon pleas in bar in an action at law, they should all be tried together, (p. 727).</p> <p>■S.'Appeal and Error — Where Finding for Defendant on One Issue Erroneous Demand for Trial of Memaiwing Issxtes.</p> <p>Where, however, the court below with the assent of the par-ides proceeds to the trial, without a jury, of only one of such 'issues, and erroneously finds for the defendant upon such ■'issue, and renders judgment accordingly, this Court will reverse the same, set aside the findings of the court below, and remand the cause for a trial upon the remaining issue, or issues, (p. 728).</p>

Certified Questions from Circuit Gourt, Wood County. Action of debt by the State, for the use of C. S. Farmer, admihistrator de bonis non of the estate of Beulah Wester-man, deceased, against the Citizens’ Trust & Guaranty Company. Plaintiff’s motion to strike a plea from the file denied, and ruling certified.

<p>-Appeal from Circuit Court, Harrison County.</p> <p>Suit by Alva J. Robey against F. S. Wilson. Decree for 'defendant, dismissing the bill, and plaintiff appeals.</p>

<p>Appeal from. Circuit Court, Harrison County.</p> <p>Suit by Russell V. Carter and wife against tbe Reserve Gas Company to cancel an oil and gas lease, etc., with, answer by defendant Gas Company averring title in itself, Harris son "W. Carter and wife, and Cynthia Morrison. Decree dismissing the original and the three amended end supplemental bills and retaining the cross-bills of Harris on W. Carter and the Reserve Gas Company for treatment as original bills, and further procedure thereon, and Russell V. Carter appeals.</p>

<p>1. Contracts — Deeds—Where Words in Deeds are Indefinite, Construction by Forties Will be Considered.</p> <p>Where in a deed or contract the parties use words of general and indefinite signification, their meaning will be determined by a consideration, not only of the language used, but of the conditions surrounding them at the time, the circumstances under which the contract or deed was made, and the purpose sought to be accomplished thereby; and if the parties have acted under the provisions of the contract or deed, their acts, amounting to a practical construction of it, will be given peculiar weight in coming to a conclusion as to the meaning of the language used, (p. 756).</p> <p>2. Djseds — Reservation by Grantor of Right to Occupy House Without Obligation to Support.</p> <p>Where the owner of a tract of real estate, which is divided into two parcels by a county road, upon the whole of which there is a lien, conveys to his daughter and her husband one of such parcels upon which the dwelling house then being occupied by the owner and the son-in-law’s family is situate, for the consideration that tho grantees discharge the lien upon the entire tract, with a provision in said deed that such owner shall have the right to make his home with the grantees therein, and all of the parties continue to live upon said land for a considerable length of time as one family, each contributing to the common support, such provision will be held as reserving to the grantor in the deed the right to occupy such dwelling house as his home in common with the grantees, but will not include an obligation upon the part of such grantees to maintain and support him. (p. 757).</p>