Volume 85 — West Virginia Reports

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by T. J. Ferrell, in bis own right and as guardian of bis minor children, Fannie If. Ferrell, bis wife, and others, against C. II. Deverick, such minor children, and others. From two decrees entered in the cause in favor of plaintiff United Fuel Gas .Company, defendant O. U. Deverick appeals.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by the Board of Commissioners of Ohio County against W. M. Clemens, ex-sheriff, etc., the Citizens’ Trust & Guaranty Company of West Virginia, and others. Judgment for plaintiff, and defendant Citizens’ Trust & Guaranty Company of West Virginia brings error.</p>

<p>1. Specific Performance — Complete and Perfect Contract of Sale of Realty Enforced.</p> <p>• Specific performance of a complete and perfect contract of sale of- real estate will be decreed as a matter of right and of course, upon a proper application thereof, in the absence of conduct or circumstances rendering specific performance inequitable or unjust, (p. 20).</p> <p>2. Same — Discretion of Trial Court in Refusing Performance Not Arbitrary.</p> <p>The discretion of a trial court to refuse specific performance of a contract for the sale of real estate, on account of defects or circumstances relied upon by way of defense, is a sound and reviewable discretion, not an arbitrary one. (p. 20).</p> <p>3. Same — Liens and Incumbrances Known to Tendee at Time of Contract no Defense.</p> <p>In the case of a contract in which time of performance is not made an essential element and in which there is no stipulation against the existence of encumbrances upon the land, the existence of vendors and trust deed liens not exceeding the amount of the unpaid purchase money and known to the vendee at the date of the excution of the contract, and reasonable delay in removal thereof by the vendor, acquiesced in by the vendee, do not release the latter from the contract, nor constitute tenable ground of defense to procedure for specific performance, (p. 19).</p> <p>4. Mortgages — Vendor and Purchaser — Lien of Trust Deed Payable Under Unpaid Price no Defense to Specific Performance.</p> <p>The title of a trustee in a deed of trust securing payment of a debt is legal but defeasible by payment of the debt by the owner of the equity of redemption or release of the lien by the holder thereof; wherefore the existence of a deed of trust on land sold, securing a debt that can be satisfied out of unpaid purchase móney in the hands of the vendee, under a contract not making time of performance essential nor stipulating against encumbrances, does not excuse the vendee from per- ' formance of the contract, (p. 20).</p> <p>6. Vendor and Purchaser — Insignificant Deficiencies in Quantity of Land no Bar to Specific Performance.</p> <p>An insignificant deficiency in the quantity of land sold by such a contract, due to an adverse bolding of a part thereof, compensable by an abatement of the purchase money, the part so held having no peculiar -value, does not release the vendee from the obligation of the contract, (p. 20).</p> <p>6. Specific Performance — Vendor and Purchaser — Reasonable Delay in Removal of Liens no Bar to Specific Performance.</p> <p>Reasonable delay on the part of a vendor, in the removal of liens on land sold by executory contract in which time of performance, was not made essential, the existence of the liens being known to the vendee at the date of the contract and he having taken possession of the land pending removal thereof by the vendor and consummation of the contract, does not release the vendee from the obligation of the contract, nor preclude specific performance thereof at the instance of the vendor. (P. 19).</p> <p>7. Vendor and Purshaser — Contract for Exchange of One Tract and Sale of Another An Entire Contract.</p> <p>A contract for the conveyance of two pieces of property lying in the same community, literally purporting an exchange of one piece for property and sale of the other piece for money, is an entire contract and the vendee cannot effect a partial rescission thereof, in the absence of a provision in the contract authorizing it. On the theory of rescission, he cannot retain one of the pieces and obtain absolution from his contract as to the other, (p. 18).</p> <p>8. Specific Performance — Contract for Sale of Property Enforceable Against Vendee. '</p> <p>Although a contract by a husband and wife for the sale of land owned by both, not sealed nor acknowledged, is unen-forcible by the vendee as to the wife, she and her husband may have specific performance thereof against him, on their tender of ' a deed properly executed by them. And their willingness at all times to perform the contract precludes his discharge from the obligation thereof on the ground of such defect, (p. 19).</p>

<p>1. Constitutional Law — United States — Act of Congress Limiting Attorney’s Fees in Collection of Claims Against Government Valid.</p> <p>The provision of the Act of Congress of March 4, 1915, limiting to 20 per cent, the payments to attorneys and agents, out of moneys appropriated by said Act, for payment of certain claims against the United States, is not a denial of due process nor of the liberty of contract, to an attorney who has rendered professional services in the prosecution of one of such claims, under a contract whereby he was to receive a fee equal to 50 per cent, of whatever might be awarded or collected, (p. 23).</p> <p>2. United States — Funds of Estate on Payment of Claims Against Government Not Chargeable With Fees in Excess of Statute.</p> <p>Funds in the hands of the personal representative of a deceased claimant in favor of whose estate an appropriation has been made by said Act, or in the hands of legatees under his will, cannot be charged with payment of the excess of such fee above the amount allowed by said Act. (p. 23).</p> <p>3. Equity — Decree to be Interpreted in Light of Pleading.</p> <p>A decree is to be interpreted in the light of the pleadings in the cause and, in so far as it purports to give relief beyond any foundation therefor laid in the pleadings, it is void. (P-23).</p> <p>4. Executoes and Administkatoes — Decree in Bill to Charge Particular Fund is to be Construed as Charging Such Fund.</p> <p>A decree founded upon a bill seeking to charge a particular fund derived from, or belonging to, the estate of a deceased person, with payment of a debt, and disclosing no other assets of such estate, is properly interpreted a decree so charging such fund. (p. 24).</p>

Suit by Earle Simmons against W. S. Simmons, Susan Simmons, (now Rader,) and Lula A. Simmons, with answer and cross-bill by them against W. S. Simmons and others, inter-pleaded defendants. Decree for plaintiff and defendants Susan Rader and Lula A. Simmons, referring cause to a commissioner for an accounting of rents and profits, and defendants W. S. Simmons and others appeal.

<p>. Appeal from Circuit Court, Upshur County.</p> <p>Suit by Clinton A. Curtis and Mollie E. MdSTemar against I. R. Curtis and others, to cancel a deed. Decree for plaintiffs, and the named defendant appeals.</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit by Jesse Y. Browning against Minerva Browning and others. Demurrer to bill sustained, and suit dismissed, without reservation, plaintiff’s bill of review for error apparent on the face of tbe record dismissed on defendant’s demurrer, and plaintiff appeals.</p>

<p>1. Assignments fob Benefit of Creditors — Time for Return Try Trustee on Sale of Assets:</p> <p>The trustee of an insolvent debtor who assigns all his property in trust for the payment of his debts, has six months' after making sale of the property within which to make a return to the clerk’s office of his receipts and disbursements and vouchers therefor, (p. 58).</p> <p>2. Same — Suit to Compel Assignee to Settle Accounts Not Defeating Commissions:</p> <p>Where the insolvent assignor and assignee agree that the former shall remain in possession and sell the property and apply the proceeds to the payment of his debts, and he does so remain in possession for a considerable time and sells a portion of the property, but does not apply all the proceeds on his debts, and, ascertaining that fact,' the assignee obtains possession of the remaining property, sells it and satisfies the creditors out of the proceeds, the assignor can not, by bringing a suit to compel the assignee to settle his accounts before the expiration of six months after his sale, defeat his commissions. (p. 58).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Proceedings by W. H. Houseman and others against the Town of Anawalt and S. T. Spencer and others to forfeit its charter and to dissolve the corporation. Judgment for petitioners, and defendants bring error.</p>

<p>1. Witnesses — Surveyor’s Blueprint Admissible for Explanation of his Testimony.</p> <p>A map or blue print made by a surveyor, though not evidence independently of his testimony, is properly admitted in connection therewith for illustration and explanation of his evidence. (p. 66).</p> <p>2. Evidence — Opinions of Non-Experts as to Damages to Riparian ' Owner.</p> <p>The opinions of non-expert witnesses acquainted with the facts and with opportunity and occasion to observe the action of flood waters in a stream, that damages done thereby to the property of a riparian owner were the result of the obstruction placed by defendant in the channel of such stream, is competent and admissible in evidence on the trial of an action for such damages, (p. 66).</p> <p>3. Waters and Water Courses — Recovery by Occasional Damage to Lands of Riparian Owners.</p> <p>Where a railroad company or other person by temporary or permanent structures or fills built in a stream obstructs the channel and thereby diverts the regular flow of the waters therein resulting in occasional damages to the lands of a riparian owner, such damages in contemplation of law are impermanent, continuous and temporary, as distinguished from permanent damages, and recovery therefor is limited to the damages as from time to time they occur, (p. 66)</p> <p>4. Same — Temporary Damages by Obstruction of Streams.</p> <p>In the trial of an action for such impermanent damages it is error to admit evidence of prospective or future damages liable to be sustained by such riparian owned, (p. 66).</p> <p>5. Same — Instruction as to Limitation of Recovery for Temporary Damages.</p> <p>And an instruction to the jury in such an action, on the subject of damages, which does not limit recovery to such impermanent or temporary damages as have accrued, constitutes reversible error, (p. 68).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by James E. Jobnston, administrator, etc., against tbe Metropolitan Life Insurance Company. Judgment in tbe court of common pleas in favor of defendant, and on writ of error tbe circuit court reversed, and rendered judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Payette County.</p> <p>Election contest by S. W. Price and others against J. E. Fitzpatrick^ Henry C. Darlington, Thomas Garrett, W. H. Johnson, T. T. Lewis, S. E. Hester, and Arnold Brabbin. Judgment before the town council of Scarbro in'favor of contestants, and case removed by contestees by writ of certiorari to the circuit court, wherein the judgment of the council was reversed, and on trial de novo there was a findingf for contestees, Fitzpatrick and Garrett, and for part of the contestants, and from judgment, contestees, Johnson, Lewis, Hester, and Brabbin, bring error.</p>

Representative suit for injunction by James I. Miller against the American Bank & Trust Company and another, asking for appointment of a receiver of the Glass Brick Company. Injunction granted, and defendants demurred to the bill, and their motion to dissolve the injunction was sustained, and from such order plaintiff appeals.

Action for wrongful death by Cora B. Lindamood against the Potomac Light & Power Company. Verdict for defendant set aside on the ground of newly discovered evidence, and it brings error.

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the' Ohio Yalley Bank against J. E. Berry and others Judgment for plaintiff, and defendants bring error.</p>

Suit by Augusta Cross Ramsey against John H. England, administrator of Stephen Cross, deceased, and others, to cancel a joint note and to recover amounts received from sale of items of personal property. Decree for defendants, dismissing the bill, and plaintiff appeals.

Suit by A. D. Barlow against T. C. Bussell and Dr. C. A. Barlow, consolidated with a suit by A. D. Barlow against J. B. Gum, and suit by “A. D. Barlow, petitioner, against Thomas C. Bussell” and others, which by consent of all interested parties was by decree consolidated with the first two consolidated cases.

<p>Error to Circuit Court, Barbour County.</p> <p>Lawrence Kittle and others were indicted for rape, and they bring error.</p>

Suit for partition by Elizabeth E. Arnold and others against Charles E. Mylius, Thomas J. Arnold, the Otter Creek Boom & Lumber Company, with original bill and cross-bill by Charles E. Mylius against plaintiffs, defendant Thomas J. Arnold, the Otter Creek Boom & Lumber Company, William G. Parsons, as trustee thereof, and Jacob Koontz, E. F. Phillips, and John Stamm, partners as Koontz, Phillips & Stamm, and Charles K. Durbin, for compensation for timber, injunction,…

<p>1. Sales — Intent of Parties Governs Passing of Title.</p> <p>Whereby the terms of a contract for the sale and purchase of personal property, in this case lumber maufactured and to be manufactured and placed on stick in a mill yard, the parties make or manifest their intentions to pass the title to the purchaser when so placed on stick at the mill and before delivery thereof f. o. b. cars at the railroad, their intentions so manifested must be allowed to govern, (p. 132).</p> <p>2. Fbaudulent Conveyances — What Constitutes Unlawful Preference.</p> <p>Payments by the purchaser of such property, after having so acquired right and title thereto, and after having paid the seller the full purchase price therefor, to a creditor of the seller, in consideration of service rendered or to be rendered by him to the purchaser, to be credited on account of the seller, become insolvent, are not unlawful preferences voidable ás such under section 2 of chapter 74 of the Code, and recoverable from such creditor in a suit by other creditors of the insolvent debtor, (p. 132).</p>

<p>1. Insurance — Forfeiture Provisions; Reasonableness.</p> <p>A covenant or stipulation in a policy of fire insurance that the entire policy shall be void in case the premises shall become vacant, and so remain longer than a certain period of time, is a reasonable and valid provision, and in case such insured premises are destroyed by fire while vacant, after having so' remained for a longer time than allowed by' the terms of the policy, the insured, in the absence of a waiver of such condition, will not be entitled to recover the indemnity provided in the policy, (p. 136).</p> <p>2. Same — Conditions; Evidence of Waiver.</p> <p>The waiver by the insurer of one of the conditions or warranties in a policy of insurance is not evidence that another condition or warranty therein contained is also waived. Ordinarily a condition, stipulation, or warranty contained in a policy of insurance applicable to the subject-matter can only be waived in the manner provided in the policy, or by some act or conduct upon the part of the insurer, after being informed of the facts constituting a breach of the warranty or stipulation, from which it may reasonably be inferred that such insurer intends the policy to remain in force notwithstanding such breach, (p. 136).</p> <p>3. Same — Conditions; Waiver of Conditions Against Vacancy.</p> <p>When a policy of fire insurance provides that the entire policy shall be void, unless otherwise provided by endorsement thereon or attached thereto, if the interest of the insured shall be other than that of unconditional sole ownership, or if tlie property shall become vacant and unoccupied, and so remain for a period longer than ten days, an endorsement attached to said policy stating that the interest of the insured is that of fee simple in remainder, after a certain life estate therein mentioned, will not make inapplicable or waive the condition or warranty rendering the policy void in case the premises are vacant at the time of the Are, and had been so vacant for a longer period than that provided in the policy, p. 137).</p>

<p>1. Teeaecy in Common — Taxes—Redemption Toy Cotenant’s Husband for Benefit of Cotenants.</p> <p>If the husband of a cotenant purchases at a tax sale the common land, or the interest of a purchaser thereof before deed obtained, and thereafter obtains a tax deed, such purchase, at the election of the cotenants, or any of them, will be treated as a redemption of the land for the benefit of those who so elect, and that too whether the wife’s estate in the land be a common law or separate estate, (p. 141).</p> <p>2. Taxation — Redemption from Sale — Separate Property of Married Woman.</p> <p>If the real estate of an adult married woman, which is her sole and separate property, is sold for the nonpayment of taxes thereon, she, like any other adult, must redeem within one year from the sale thereof, and. not after, by paying or tendering to the purchaser the sum expended by him therefor, (p. 141).</p> <p>3. Same — Redemption from Sale — Property of Infant Married Woman.</p> <p>But where the disabilities of coverture and infancy coexist in the owner at the time of the sale of her land, and the former under the statute is not available for her relief by way of extending the time within which she may redeem, she may avail herself of the other to the extent permitted by the statute, (p. 141).</p> <p>4. Judicial Sales — Vacation for Want of Fair and Open Bidding.</p> <p>It is in the interest of justice that a judicial sale be so conducted as to yield to the party whose property is being sold the best price that can fairly be had, and any conduct on the part of those actively engaged in the selling or bidding that tends to prevent a fair, free, open sale, or stifle or suppress free competition among bidders is contrary to public policy, vitiates the sale, and constitutes ground for setting it aside upon the complaint of the injured party, (p. 144).</p>

Suit by Belle Eardin against E. B. Eardin and others in which L. A. Brewer by petition became a party defendant. Decree for plaintiff, and defendant L. A. Brewer appeals.

<p>Error to Circuit Court, Marion County.</p> <p>Action by William S. Ingles against Harmel E. Stealey. Judgment for plaintiff, and • defendant brings error.</p>

Certified questions from Circuit Court, Wetzel County.. Bill by B. A. Pyles, special receiver of tbe Exchange Bank of Littleton, against S. A. Carney and others. Separate demurrers by part of defendants to second amended bill sustained in part and overruled in part, and questions certified by Circuit ’Court.

<p>1. Ckiminal Law — Sentence of Imprisonment — necessity of Appearance of Accused.</p> <p>Upon an indictment for a misdemeanor, return of service of process thereon and non-appearance of the accused to answer the indictment, the case may be tried and a verdict returned in his absence; hut, if the court intends to impose a sentence of imprisonment as part of its judgment, the entry of judgment must be deferred until the accused shall have appeared in court or shall have been apprehended and brought in (p. 167).</p> <p>2. Same — New Trial — Defective Process or Return.</p> <p>If, in such case, the process is insufficient, or, it being sufficient, the return thereon is insufficient, a motion of the accused to set aside the verdict and award him a new trial, made on his appearance in court, should .be sustained.</p> <p>3. Same — Process After Indictment — Oapias as Summons.</p> <p>A capias is not the legal equivalent of a summons awarded on an indictment, and, if executed as a summons might be, it need not be obeyed or regarded, (p. 168).</p> <p>4. Same — Return on Summons — Substituted Service.</p> <p>If endorsed upon a summons, a return saying only that the paper had been read to the mother of the defendant named 'therein, on a certain day in a certain county, would he palpably insufficient by reason of omission of statutory requisites of a return of substituted service, (p. 168).</p> <p>5. Same — New Trial — Process as Part of Record.</p> <p>A verdict in a misdemeanor case, returned in the absence of the prisoner, he having been served with process and failed to appear, is analogous to a judgment by default, and, for the purposes of a motion for a new trial, the process is a part of the record, (p. 167).</p> <p>6. Same — Appeal—Record of Service of Process and Return.</p> <p>A recital in an order, in such case, to the effect that process has been duly executed upon the defendant, is overthrown by the presence in the record of a paper relied upon as process, which is’ insufficient, and bearing an endorsement relied upon as a return of service, which would be insufficient, if founded on a valid process. (p.'167).</p>

Suit by Jay Wellman against the Virginia Railway Company and others, for specific performance of a contract. Decree for defendants, and plaintiff appeals.

<p>1. Master and Servant — Declaration in Suit Under Federal Employers’ Liability Act Sufficient.</p> <p>A declaration in a suit by an employee against a common carrier, for' personal injuries, under the Federal Employers’ Liability Act, which avers facts sufficient to show defendant was operating a train in interstate commerce and alleges also that plaintiff was employed as a brakeman on such train and was then and there engaged in interstate commerce, is good on demurrer, without other facts alleged to show such interstate employment.</p> <p>2. Continuance — Absence of 'Witness — Direction Where Statement of Witness is Admitted,.</p> <p>The judgment of the trial court overruling a motion for a continuance, based on the absence of a witness, being addressed to the sound discretion of the court, will not be reversed when it is doubtful whether the moving party has used due diligence, and whether the presence of the witness, not served with summons and absent from the country in the military service, can be obtained or his deposition procured for the succeeding term, and the court with the consent of the opposite party, obtained on condition of continuing the case without such consent, permits the use of an ex parte statement of the witness, made before suit, to be read in evidence to the jury. (p. 177).</p> <p>3. Master and Servant — Contributory 'Negligence — Admissibility of Evidence to Impel Implication of Negligence.</p> <p>Where in such action two of the questions before the jury were whether the plaintiff at the time of his injuries was observing due care, or was guilty of incurring the risk of open and apparent dangers by stepping on a parallel track behind a train going in the opposite direction to the one on which he was employed, and in front of a motor car following such train, in discharge of duties connected with the unloading of an intrastate car, and which truck he did not in fact see, evidence of a custom among employees using such motor trucks to keep a safe distance behind the train they were following, to avoid injury to themselves and others, was admissible as tending to repel the imputation of want of due care and incurrence of such risk by plaintiff, (p. 179),</p> <p>4. Same — Evidence—Contributory Negligence — Assumption of Risk — Action Under Federal Employers’ Liability Act.</p> <p>And on the trial of such an action the testimony of one or more of the witnesses, including those employed on the motor truck doing the injury, that plaintiff with his back to the truck and going in the same direction, did not in fact see the on-coming truck, was competent and admissible on the question whether plaintiff was observing due care or had assumed the risk of open and apparent dangers, (p. 179).</p> <p>5. Damages — Bralceman in Interstate Commerce — Measure—Evidence.</p> <p>The measure of damages in an action by an injured employee against a carrier engaged in interstate commerce is such sum as will fully and fairly compensate him for his pain and suffering, his mental anguish, the bodily injury sus tained by him, bis pecuniary loss, his loss of power and capacity to work, and its effect upon his future; and on these questions evidence of the wages he was receiving at the time he was injured, and what he should have been receiving in the same employment at the time of the trial, was properly submitted to the jury. (p. 179.)</p> <p>6. Master and Servant — Admissibility of Rules of Others as Bearing on Question of Negligence.</p> <p>When one of the issues before the jury is whether a common carrier has been guilty of negligence in not adopting and enforcing proper rules for operating motor trucks, evidence that other carriers had found it necessary or proper to adopt and enforce such rules, is proper to go to the jury on the question of negligence on the part of the defendant in the premisés. (p. 179).</p> <p>7. Commerce — Employe Engaged in Interstate.</p> <p>If an employee at the time of his injury is engaged in interstate commerce, the fact that at the particular instant of his injury he was bent on or actually engaged in handling an intrastate shipment, will not necessarily characterize his employment as intrastate, if the discharge of his duty in that behalf also pertains to the operation of a train in interstate commerce, (p. 180).</p> <p>8. Damages — Instruction—Limiting Verdict to Damages Sited on.</p> <p>An instruction to the jury limiting the verdict, if for plaintiff, to the damages sued for, is not erroneous as suggestive of an improper basis of recovery, (p. 181). •</p> <p>9. Master and Servant — Instruction Negativing Assumption of ■Risk by Employe Engaged in Interstate Commerce.</p> <p>An instruction on behalf of an interstate employee intended to negative assumption by him of an extraordinary risk and hazard but omitting the proviso “unless open and apparent,” is not erroneous where such risk and hazard, by negligence of the defendant, was suddenly created, and he did not in fact see the danger, and had the right to assume and did assume he would not be subjected to such extraordinary danger as resulted in his injury, (p. 181).</p> <p>10. Appeal and Error — Trial—Argument of Counsel — Time and Mode of Objection.</p> <p>Improper remarks of counsel for plaintiff in argument to the jury, supposed to be detrimental to defendant, should be promptly excepted to, and though objection be thus made by opposing counsel, accompanied by a motion to direct a ver-diet for defendant, denial of such motion will not constitute reversible error, unless the court refuses on motion or by instruction to direct the jury to disregard such improper remarks, (p. 185).</p>

Bill for injunction, etc., by Nancy J. Bean and others against the County Court of McDowell County. Decree for defendant, and plaintiffs appeal.

<p>Action by Hallie Davis against the Laurel River Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Suit by J. J. Eoss and others against A. C. McConnaughy and others. Decree for plaintiffs, and defendant A. C. McCon-naughy appeals.</p>

Suit for injunction by Theodore D. Carr against Lucy A. Carr. From a decree dissolving ah injunction awarded to plaintiff, and the dismissal of his bill, he appeals.

<p>1. Criminal Law — Homicide—Evidence—Identification of Coat of Deceased and Indication of Bullet Holes.</p> <p>In a murder trial it is permissible for a witness, who saw the body of deceased shortly after the homicide and observed the bullet holes in the coat worn by him at the time he was killed and also the fatal bullet wounds on the body after it was stripped, to identify the coat and point out to the jury the bullet holes in it corresponding to the bullet wounds on the body. (p. 215).</p> <p>2. ■ Homicide — Evidence Showing Necessity for Self-defense.</p> <p>Where the homicide is admitted and the accused seeks to justify it on the ground of self-defense, it .is prejudicial error to refuse to,,allow the accused to answer the question: “Í want you to tell this jury why you shot” deceased, it appearing that she would have answered that she shot deceased to prevent him from assaulting her in her own home, and believed it was necessary to protect herself; the error in ruling out such question and two or three others of similar’ character in succession, when it.is made to appear that the witness’ answers would have been material to her defense, is not cured by permitting the witness, a little later in her examination, to answer the following question: “At the time you shot James Areno were you afraid that James Areno was going to do you harm?” (p. 216).</p> <p>3. Witness — Impeachment on Collateral Matters — State Bound hy Answers of its Own Witness.</p> <p>When matter material to the defense is brought out on cross-examination of one of the State’s witnesses, .and the State .by redirect, or cross-examination seeks to discredit the witness as to the matter favorable to the defense, the State is bound by the witness’ answers on such redirect cross-examination, and can not introduce evidence to impeach his statements. Neither is it permissible to impeach a witness upon matters collateral • to the issue, (p. 217).</p> <p>4. Criminal Law — Homicide—Instruction as to Form of Verdict— Permission.</p> <p>In a trial for murder it is not error for the court to instruct the jury respecting the various kinds of verdict they have the power to render, “as the evidence may warrant,” including therein a verdict of not guilty, but omitting to mention a verdict for assault and battery. The omission in such instruction to tell the jury they must believe from the evidence, beyond all reasonable doubt, the guilt of the accused is established before they can render a verdict of guilty, is not error when the jury are fully advised as to the' degree of proof required to convict, by other instructions, (p. 218).</p> <p>5. Homicide — Malice Essential Element of Murder — Inference from Use of Deadly Weapon.</p> <p>Malice is an essential element of murder either in the first or second degree, and where an intentional homicide by the use of a deadly weapon is admitted, the jury may infer malice, willfulness and deliberation from the act; and by legal malice is meant not only such as may exist against the deceased, but includes such disposition of the accused as shows a heart regardless of duty and fatally bent on mischief, (p. 218).</p> <p>6. Same — Existence of Malice — Time.</p> <p>Malice need not have existed for any particular length of time before the homicide, but may spring into the mind of the accused at the very instant of the commission of the act. ' (p. 218). .</p> <p>7. Criminal Law — Repetition of Instructions.</p> <p>It is proper to refuse instructions upon points of law covered by other instructions given; instructions need not be repeated, (p. 218).</p> <p>8. Homicide — Burden of Establishing Justification.</p> <p>Where the homicide is admitted and justification is relied on, the burden is upon the accused to establish it by a preponderance of the evidence, but in determining the question the accused is entitled to have the jury consider all the evidence, facts and circumstances of the case. (p. 221).</p> <p>9. Criminal Law — Talcing Demonstrative Evidence to Jury Room.</p> <p>It is within the sound discretion of the trial court to permit weapons used in the commission of the crime and the garments worn by deceased at the time he was killed showing marks of violence, which have been identified and given in evidence, to be carried by the jury to their room when they retire to consider of their verdict, (p. 222).</p>

<p>Original mandamus by tbe State, on relation of E. "W. Brown, executor, etc., against Herbert Skeen, Clerk, etc.</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Bill by Pat Gay against James Gibson and others. Decree ' for defendant James Gibson, and plaintiff appeals.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Suit by Lewis, Hubbard & Co., against James Loughran, with intervention by C. A. Reilley. Judgment for plaintiff was reversed in the circuit court on a writ of error and the property discharged from the lien of an attachment, and plaintiff brings error.</p>

<p>Certified Questions from Circuit Court, Cabell County.</p> <p>Proceeding by the City of Huntington against the Frederick Holding Company and others for condemnation of land for widening a street. Motion to strike pleas sustained as to three of four pleas, and the propriety of such action certified to the Supreme Court of Appeals.</p>

<p>1. Taxation — Injunction Against Collection of Tax Levied, Under Unconstitutional Act.</p> <p>Equity has jurisdiction at 'the suit of a taxpayer to enjoin the collection of a tax levied under the provisions of an unconstitutional act of the legislature, (p. 249).</p> <p>2. Constitutional Law — Constitutional Provisions to he Construed as Mandatory.</p> <p>The provisions of the Constitution, the Organic and fundamental law of the land, stand upon a higher plane than statutes^ and they will as a rule be held mandatory in prescribing the exact and exclusive methods of performing the acts permitted or required, (p. 249).</p> <p>3. Statutes — Constitutional Provisions <as to Subject and Title Mandatory.</p> <p>That provision of § 30 of Art. 6 of the Constitution stipulating that no act shall embrace more than one object, which shall be expressed in the title, mandatory, (p. 260).</p> <p>4. Case Overruled.</p> <p>Point one of the syllabus of the case of Shields and Preston v. Bennett, 8 W. Va. 74, overruled, (p. 249).</p> <p>5. Statutes — Invalidity of Act Embracing Two Separate and Distinct Subjects.</p> <p>An act of the legislature embracing two separate and distinct subjects of legislation, both of which aré expressed in tihe title, is void in toto. (p. 254).</p> <p>6. Same — Invalidity of Act Creating School District Embracing Two Separate and Distinct Subjects.</p> <p>Chapter 23 of the Acts of the Legislature, 1919, “Municipal Charters,” being an act to amend and re-enact the char-' ter of the. city of Hinton, and creating and' establishing the Independent School District of Hinton in the county of Summers, embraces two separate and distinct subjects of legislation, both of which are included in the title, and said act is therefore in violation of § 30 of Art. '6 of the Constitution and void. (p. 254).</p>

Bill for injunction by Mary B. McGraw and others against William Morgan, trustee, and others. From an order of the circuit court, after remand, perpetuating the injunction reinstated by the Supreme Court of Appeals, and dissolving injunction as to other appellees, and dismissing the cause as to them, plaintiff Mary B. McGraw appeals.

<p>1. Intoxicating Liquors — Burden of Proof That Liquor Carried Was Intoxicating.</p> <p>Tliat provision of section 7, ch. 32A, Code 1916, which prohibits any person from carrying liquor for another between points within the state, is expressly limited and restricted to the carriage of intoxicating liquors; and in a prosecution- for violation of this section it is incumbent upon the state to prove that the liquor carried was intoxicating, unless the specific .beverage is embraced within the statute declaring what liquors are to be deemed intoxicating, (p. 264).</p> <p>2. Same — Proof That “Liquor” is Intoxicating.</p> <p>Where a statute (section 1, ch. 32A, Code 1916) requires the word viiqUOrs” to be construed to embrace all malt, vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture or preparation of like nature, and all malt and brewed drinks, whether intoxicating or not, proof of the manufacture, sale or carriage thereof, when condemned by law, is sufficient to sustain a conviction under an indictment charging a violation of the act, without showing the alcoholie content or the intoxicating character of the liquid, (p. 264).</p> <p>3. Same — “Spirituous Liquors.”</p> <p>The term “spirituous liquors”, as used in an enumeration of specific beverages so declared to be intoxicating, includes all forms of whiskey, (p. 264).</p> <p>4. Same — Whether “Wine” or Any Other Drink, Mixture or Preparation of Like Nature is Intoxicating a Question of Fact.</p> <p>Likewise, the term “wine” as so used includes all commercial brands of wine, but cannot, in the absence of words indicating an intent on the part of the legislature to give it a broader meaning, reasonably be construed to include other forms of beverage to which, the term “wine” is often loosely applied. Such beverages fall within the condemnation of the statute only so far as they are included within the phrase “or any other intoxicating drink, mixture or preparation of like, nature”, thus making the question of their intoxicating quality one of fact in each case. (p. 2651.</p> <p>5. Criminal Law — Intoxicating Liquors — Proof That Liquor Sold is Not Intoxicating Admissible.</p> <p>Where, in a prosecution for the alleged violation of section 7, ch. 32A, it is incumbent upon the state to prove the intoxicating quality of the liquor carried, because not included within the enumeration of liquors declared by the legislature to be intoxicating, it may do so by proof of a general nature, or by establishing through chemical analysis that the beverage contains as much as one-half of one per cent of alcohol by volume; and if it elects the former, proof of a similar nature offered by defendant in rebuttal is material, and its exclusion is such er^or'as necessitates reversal, (p. 266).</p> <p>6. Intoxicating Liquors — Seller’s Belief of Nonintoxieating Properties no Defense.</p> <p>The fact that the seller or purveyor of intoxicating liquor believed it to be non-intoxicating is'no defense, (p. 265.)</p>

Suit in equity by Annie S. Feather against Melvin S. Baird for cancellation of a deed. Demurrer to bill sustained and bill dismissed, and plaintiff appeals.

<p>1.. Criminal Law — Burden of Proof — Change of Venue.</p> <p>Tlie Constitution guarantees to one accused of, and about to be tried for a crime, a change of venue upon a showing of good cause therefor, and the accused bears the burden of prov- • ing to the satisfaction of the court the existence of such good cause, (p. 276).</p> <p>2. Same — Question of Good Cause for Change of Venue — Discretion of Court.</p> <p>The good cause alleged may be controverted by the State, and the question is one of fact addressed to the sound discretion of the court, and if his ruling thereon is prejudicial to the accused, it is cause for reversal, (p. 276).</p> <p>3. Same — Weight of Counter i Affidavits on Application for Change of Tenue.</p> <p>Affidavits, however numerous, merely negative in character, stating that affiants are familiar with the circumstances ot the case about to be tried and know of no public prejudice or animosity against the accused that will prevent his having a fair and impartial trial in the county, but stating no facts on which such conclusions are based, do not overcome the evidence of accused, supported by only a small number of witnesses, who swear to facts which clearly show the existence of a strong and prevailing public prejudice against the accused and a general belief in his guilt, (p. 276).</p> <p>4. Same — Evidence on Renewal of Motion, for Change of Venue.</p> <p>The accused may renew his motion for a change of venue at any time before the jury is sworn, and is entitled to file addi-ifional affidavits in support thereof; he should also be allowed to cross-examine affiants. for the State then present in court. Evidence on. a motion for change of venue may be taken at the bar of the court as well as by affidavits, (p. 276).</p> <p>5. Same — Diligence to Entitle Accused to Continuance.</p> <p>Where a continuance is asked on the ground of the absence of a witness for the aceused, and- it appears that he knew such .witness was a nonresident of the State and made no effort to take his deposition, and showed no cause of surprise at his failure to attend at the trial, no cause for a continuance is shown, (p. 279).</p> <p>6. Same — Derogatory Remarle of Court Before Trial 27o Ground for Reversal of Conviction.</p> <p>An inadvertent remark made from the bench by the presiding judge, derogatory to the character of accused, but made a month, before the case was tried and not in the presence of any of the jurors .who tried the case, is not cause for reversal, if it appears from the record accused has had a fair and impartial trial, (p. 279).</p> <p>7. Same — Appointment of Special Officer to Take Charge of Jury.</p> <p>Where the accused is charged with the murder of the sheriff, and his deputy becomes his successor in office, it is not error for a court to appoint a special officer, who, after being sworn and properly instructed, takes charge of the jury during the trial, (p. 280).</p> <p>8.Arrest — Homicide—Right of Officer to Overcome Resistance— Degree of Homicide by One Resisting Arrest — “Murder”— “Manslaughter".</p> <p>Resisting an arrest, which a proper officer is trying to make in a lawful manner, by one charged with crime and knowing the officer’s authority, is an unlawful act, and such officer has the legal right to use such reasonable force as may be necessary to overcome the resistance, and if in resisting or attempting to escape the accused maliciously kills or fatally wounds the officer while he is acting in a lawful manner, the homicide amounts to murder, but if there was no intention to kill or do great bodily harm and the killing was purely accidental, the homicide amounts to manslaughter only. Malice is an essential element in murder of either the first or' second degree, (p. 281).</p> <p>9.Criminal Law — Homicide—Application of Contributory Negligence — Evidence Sustaining Conviction of Murder.</p> <p>Contributory negligence has no application in a criminal prosecution, and where it appears a sheriff sought to arrest the accused by jumping upon the running board of his automobile while it was in motion and informing him that he had a warrant for him, and when he failed to slacken his speed, by then trying to gain control of the steering wheel, whereupon the speed of the automobile was immediately, greatly increased, and continued for a distance of about eight hundred feet, when the automobile collided with an iron bridge, wrecking the machine and dashing the sheriff to his death against one of the iron columns of the bridge, the accused is guilty of murder if he could have stopped his machine and wilfully refused to do so, and intentionally collided with the bridge, but if the collision was accidental, the killing is manslaughter only, and the fact that the sheriff’s efforts to obtain control of the steering wheel may have been a contributing cause of the collision, is no defense, (p. 281).</p> <p>10. Homicide — Exclusion of Evidence as to Injury to Defendant's Children.</p> <p>The exclusion of evidence to prove that a doctor dressed the wounds of the children of accused, who were riding with him in the automobile and were injured by the collision with the bridge, is not error, (p. 289).</p> <p>11. Same — Evidence as to Cause of Death.</p> <p>The testimony of an undertaker, who prepared the body of deceased for burial, describing the condition of his body, caused by its violent contact with the bridge, is admissible to prove the cause of death, (p. 289).</p>

<p>1. Cbiminal Law- — Strict Construction of Plea in Abatement.'</p> <p>As pleas in abatement do not go to the merits of controversies or causes of action, and, for that reason, are not favored by tbe courts, they fall under the rule of strict construction, and, to be sufficient, must be certain to a certain intent in every particular, (p. 291).</p> <p>2. Same — Insufficiency, of Plea in Abatement Based on Discrimination in Selecting Grand Jury.</p> <p>A plea in abatement to an indictment, founded upon discrimination against the prisoner, in the selection of the grand jury by whom the indictment was found, on account of his race and color, he being a person of color and of African descent, which does not- positively and unequivocally aver the existence in the county in which the indictment was found, of persons of his race and color fully qualified for grand jury service, is insufficient and may properly he rejected, (p. 290).</p> <p>3. Same — Plea in Abatement — ~Who Are Competent and Qualified to serve Upon Gh-and Jury.</p> <p>The clause “Who are competent and qualified to serve upon a grand jury,” found in such a plea and preceded by aver-ments that the persons of whom it is predicated are colored and African by descent and are citizens and tax-pajrers of the county and constitute a large percentage of the citizens and tax-payers thereof, is uncertain and equivocal as to whether such persons are qualified for grand jury service, because it may be regarded as the averment of a mere conclusion founded upon the insufficient facts antecedently stated; and the plea, containing it and no other averment of qualification for such service, does not comply with the requirement of the rule of pleading, as to certainty and definiteness, (p. 290).</p>

<p>1. Indictment and Information — No Conviction of Assault and Battery Under Indictment for Murder in Statutory Form.</p> <p>On an indictment for murder in the statutory form, the accused cannot he convicted of assault and battery, because that offense is not necessarily included in the higher offense expressly charged, (p. 294).</p> <p>2. Homicide — Verdict Void for Uncertainty.</p> <p>A verdict found on such an indictment, acquitting the accused of murder of both degrees and voluntary manslaughter, and then saying the jury find him guilty as charged in the indictment, except as to the charges of murder and voluntary manslaughter, “but do not decide as between the charge of involuntary manslaughter and assault and battery, as therein charged,” is void for uncertainty, except as to its findings in favor of the accused, (p. 294).</p> <p>3. Criminal Law — Disapproval of Erroneous Instruction on Award of New Trial on Second Writ of Error.</p> <p>An erroneous instruction approved on a writ of error on which a new trial is allowed for other errors and repeated on such new trial, may be disapproved on reversal of the judgment and award of a new trial on a second writ of error, for insufficiency of the verdict, (p. 296).</p> <p>4. Same — Capacity to Commit Crime a Question for the Jury.</p> <p>Capacity to commit a crime is a question to be determined by the jury from the age, appearance and conduct of tbe accused, both, at the time of commission of the offense charged and at the time of trial, wherefore the trial court may properly refuse to direct a verdict of acquittal, on the ground of lack of independent, direct and express evidence of such capacity, (p. 296).</p> <p>5. Same — Repitition of Instruction Given.</p> <p>It is not error to refuse requests for repetition of instructions given, in altered forms, (p. 297).</p> <p>6. Samet-Deeision. os to Propriety of Procedure to Which No Sufficient Exception Has Been Taken.</p> <p>On the award of a new trial, founded upon well taken exceptions, an appellate court may, in its discretion, pass upon the propriety of procedure disclosed by the record, to which no sufficient exception has been taken, for the purpose of such new trial, (p. 297).</p>

Separate suits by the First National Bank of Webster Springs and others, by American Audit Company and others, and by Union Trust & Deposit Company and others, for the enforcement of judgment liens against John T. McGraw and others. Cases consolidated for trial, and judgment for plaintiffs in each suit, and John T. McG-raw appeals.

<p>Error to Circuit Court, Monongalia County.</p> <p>Otis W. Miller was convicted of assault and battery, and he brings error.</p>

Jacob Lutz was convicted of murder in the first degree, bis motion for a new trial was overruled, and from the judgment on the verdict he brings error.

<p>Certified Questions from Circuit Court, Wood County.</p> <p>Suit by Clemenee E. Leisure against the Monogahela Yalley Traction Company. Plea rejected, and question certified.</p>

Certified Questions from Circuit Court, Wetzel County. Suit by C. Russell Iiinerman and' others against S. C. Hiner-man and others. Demurrer to bill overruled, and questions certified.

Certified Questions from Circuit Court, Kanawha County. Action by the City of Charleston, for the use of Elijah Peek, administrator of Edward Peek, deceased, against Howard Dawson and others. Demurrer to declaration sustained, and question certified.

<p>1. Counties — Prerequisites to Suit Against County Court on Claim for Specified Sum.</p> <p>No suit may 'be instituted or maintained against a county court upon any claim for a specified sum of money founded on contract, except an order on the county treasury, until an itemized account or statement of such claim has been presented to such court, or filed with the clerk thereof for presentation, and the court has disallowed such claim in whole or in part, or has neglected or refused to act thereon by the close of the first session after that at which it was so presented, or by the close of the second session after it was filed with the clerk for presentation, (p. 360).</p> <p>2. Same — Allegations of Conditions Precedent in Declaration in Suit Against County Court.</p> <p>If suit is brought against a county court for the recovery of any such claim, the declaration must substantially aver that the same has been so presented and disallowed in whole or in part, or that the court has neglected or refused to act thereon. Unless such averments substantially appear upon the face of the declaration, it will be for that cause demurrable, (p. 361).</p> <p>3. Same — Powers of- County Court — Mode of Action.</p> <p>The county court is a corporation created by statute, and possessed only of such powers as are expressly conferred by the Constitution and legislature, together with, such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given. It can do only such things as are authorized by law, and in the mode prescribed, (p. 361).</p> <p>4. Officers — Discretion to Remove Appointee for Indefinite Term Cannot be Contracted Away.</p> <p>Where a statute conferring the power to appoint fixes no definite term of office, but provides that the tenure shall be at the pleasure of the appointing body, 'the implied power to remove such appointee" may be exercised at its discretion, and cannot be contracted away so as to bind the appointing body to retain him in such position for a definite, fixed period, (p. 363 ). - •</p> <p>5. Paupers — Manager County Poor Farm May be Dismissed and Sis Contract Annulled Without Liability.</p> <p>Though a county court employs a manager of the county poor farm for a definite term, it may withouit liability annul the contract and dismiss him at any time before the expiration of such term; the contract being subject to the provision of section 23, chapter 46, Code 1918, that any officer or other person appointed or employed by such court under that chapter shall hold his office or employment at its pleasure, (p. 361).</p>

Certified Questions from Circuit Court, Barbour County. Action in justice’s court by A. D. Smith against -Tí. B. Thompson. Default judgment against defendant, and he ap peals, and the circuit court certifies questions.

<p>1. Reformation of Instruments — Equity Jurisdiction to Reform, Lease Not Embodying All of Lessor's Covenants.</p> <p>Where the parties to a lease contract have fully agreed upon the terms and provisions thereof, and the lessee has entered into the possession of the leased premises, and by the mutual mistake of the parties, or mistake of one and the fraud or inequitable conduct of tbe other, the written-lease subsequently prepared and presented by the lessor does not in fact embody all the covenants of the lessor, equity has jurisdiction to reform and make the lease cover the contract actually agreed upon. (p. 369).</p> <p>2. Landlord and Tenant — Reformation of Instruments — Lessor’s Breach of Covenant to Repair Gives Lessee no Equitable . Lien for Repairs Made But He May Recover Damages for Breach.</p> <p>When repairs or improvements impermanent in character which the lessor covenanted to make are made by a lessee in such lease in the absence of any specific provision of the lease so providing the lessee acquires no equitable lien on the premises therefor but the court having jurisdiction to reform the lease may go on and decree to the lessee damages as for the breach by the lessor of his covenant to make such repairs, (p. 370).</p>

<p>1. Pleading — Common Law Duplicity Not Valid Ground of Demurrer.</p> <p>The common law defect in pleading known as duplicity is not now a valid ground of demurrer in this state, it being one of mere form, constituting ground of special demurrer, and that kind of demurrer having been abolished by statute, (p. 373).</p> <p>2. Banks and Banking- — Counts in Declaration Alleging Guaranty of Note by National Bank Insufficient.</p> <p>Counts in a declaration purporting to charge a national bank upon a guaranty of notes of a third person and being-uncertain and indefinite as to whether the bank acted as the mere agent of the -parties to the notes or was the owner thereof or otherwise beneficially interested therein, are insufficient, (p. 373).</p> <p>3. Same — National Bank’s Guaranty of Another’s Obligation for Elis Benefit Ultra Vires.</p> <p>An agreement of a national bank to guarantee an obligation of another person for his sole benefit, though founded upon a valuable consideration, is ultra vires and does not bind the bank, unless the circumstances are such as work an estoppel, (p. 375).</p> <p>4. Same — To Hold Collecting Bank Liable for Failure to Demand Payment of Notes and Bind Indorsers by Protest and Notice, Declaration Must Show Damages.</p> <p>Neglect of a bank to demand payment of notes entrusted to it for collection and bind the endorsers by protest and notice, does not make it liable for the notes, as if it were surety, guarantor, maker or endorser, but only for such damages as have been sustained by the holder by reason of such negligence; and, to make out a case against the bank in his declaration,. lie must allege such, additional facts as will show that he has been so injured and damaged, (p. 375).</p> <p>5. Bills and Notes — Signed in Blank, Before Delivery is Liable Only as - Indorser.</p> <p>By virtue of secs. 63 and 64 of ch. 98A, Code> the Negotiable Instruments Law, a person not otherwise a party to a note, placing his signature thereon in blank before delivery, is liable thereon only as an endorser, (p. 376).</p> <p>6. Statutes — Act Comprehensively Dealing With the Subject Impliedly Repeals Previous Inconsistent Common or Statutory Law.</p> <p>A statute covering an entire subject and showing by its terms and provisions legislative intention to deal with it fully and comprehensively, is deemed to have been intended to be a substitute for all previously existing law applicable to such subject, and is, therefore, construed as having impliedly repealed such law, whether common or statutory, in so far as it is inconsistent with the terms of the statute, (p. 376).</p> <p>7. Banks and Banking — Declaration Need Not Negative Pacts Excusing Collecting Bank’s Failure to Protest Paper.</p> <p>A declaration founded upon failure of a bank to protest negotiable paper entrusted to it for collection need not negative the existence of facts or circumstances excusing such failure, (p. 376). .</p>

Certified Questions from Circuit Court, Jefferson County. Suit by Cadwell C. Tyler, against C. M. Wetzel and others, to cancel a release of a mortgage and to foreclose the mortgage. Question raised and decided by motion denominated a motion to quash the summons and return of service founded upon the bill as well as upon the process certified.

Certified Questions from Circuit Court, Greenbrier County. Bill by Sallie Lockliart and others against Jerome A. Hoke, administrator, etc. Demurrer to bill sustained, and questions arising thereon certified.

Certified Questions from Circuit Court, Raleigh County. Action by the Town of Lester, for the use of Clark Richardson, against Marion Trail and others. Demurrer to declaration sustained, and the sufficiency of the declaration certified.

Action of unlawful entry and detainer before a justice of the peace' by J. A. McKenzie against Hora Mackall. Judgment on a verdict for plaintiff, rendered by the circuit court on appeal, and defendant brings error.

Suit by the City of Parkersburg against the Kanawha Traction & Electric Company involving the construction of paragraphs of defendant’s franchise. From the decree, the defendant appeals.

<p>1. Negligence — Proof, and Charge on Supervening 'Negligence Proper.</p> <p>When in an action for damages for personal injuries the averments of the only count in the declaration, properly interpreted, amount to a general charge of negligence, and specific acts of negligence are also averred, the plaintiff can not be limited in his proof to the specific acts averred; and when the defendant by evidence introduces the defense of contributory negligence, the plaintiff may under such declaration offer evidence, and the jury may be instructed, if the evidence justifies it, on the theory of the supervening negligence of the defendant as the proximate cause of plaintiff’s injuries. Hawker v. B. & O. R. R. Co., 15 W. Ya. 628, distinguished, (p. 399)</p> <p>2. Street Railroads — “Immediately” In Instruction on Contributory Negligence in Starting Across Track Construed as Fairly Descriptive of Acts.</p> <p>The use of the word “immediately” in an instruction to the jury, intended to describe the co'nduct of the plaintiff in starting across the track of a street railway after seeing the approach of the car which did him the injury, there being no evidence of delay therein, is fairly descriptive of his acts, and the instruction being otherwise good in law is not thereby rendered erroneous, (p. 401).</p> <p>3. Damages — $5,000 for Permanent Injury from Breaking Collar Bone and Shoulder Blade and Injury to Right Side and Arm Not Excessive.</p> <p>The verdict for the plaintiff in this case for $5,000.00, can not, within the rules of law binding us, be said to be excessive, (p. 403).</p> <p>4. Interest — Judgment for Tort Should be for Amount Found by Jury With Interest From Date of Verdict.</p> <p>In actions of tort the judgment should be for the amount found by the jury with interest thereon from the date of the verdict, as provided by section 16, chapter 131 of the Code. Overruling and correcting the error in' Easter v. Virginian Railway Co., 76 W. Va. 383. (p. 403).</p> <p>(Williams, President, dissenting in part.)</p>

Certified from Circuit Court, Randolph County. Action by the Keystone Manufacturing Company against Walker D. Hines, Director General. A demurrer to the declaration was overruled. Defendant pleaded the general issue and filed special pleas over objection to which special replications were rejected. On certified questions based on such pleadings and rulings thereon.

<p>Error to Circuit Court, Marshall County.</p> <p>Suit by Linzy Palmer against Everett E. Magers. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Prohibition' — Writ Will not go Against Trial Judge Where Court in Which Judgment was Rendered Does Not Attempt After Appeal to Enforce it.</p> <p>When the judgment of an inferior-court which is alleged to ~ have exceeded the hounds of its jurisdiction, in taking cognizance of a case and rendering the judgment, has been transferred to another court by an appeal,-and the court in which the judgment was rendered no longer attempts to enforce it, the writ of prohibition will not be awarded against the judge thereof, (p. 424).</p> <p>2. Same — Writ Will Not Go to Review Judicial Proceeding That Has Ended.</p> <p>Prohibition is a preventive remedy and cannot'he successfully invoked for review, annulment, rescission or abrogation of a judicial proceeding that has been fully completed and ended, (p. 424).</p>

<p>1. Action on the Case — Matters in Confession and Avoidance Provable Under General Issue.</p> <p>In an action of trespass on tlie case defendant may with few exceptions, prove under the general issue matters in confession and avoidance, (p. 427).</p> <p>2. Telegraphs and Telephones — Lawful Conditions of Contract Provable Under General Issue.</p> <p>In an action of tort brought by the addressee of a telegram for damages for failure to deliver it, the telegraph company may prove as defenses, under the general issue, any reasonable and lawful conditions of the contract between the company and the sender, (p. 427)</p> <p>3. Same — Conditions in Contract Against Liability for Mistake or Negligence Beyond Valuation Valid.</p> <p>The Act of Congress of June 18, 1910, declaring telegraph companies to he common carriers and subject to the federal statutes regulating interstate commerce, and authorizing them to make a reasonable and just classification of messages transmitted by them, into day, night, repeated, unrepeated, letter, commercial, press, government, and to charge different rates for the different classes of messages, warrants such company .in inserting, as a condition of its contract with the sender of a message that, in no event shall it he liable for damages “for any mistakes or delays in the transmission or delivery, or for the non-delivery, of this telegram, whether caused by the negligence of its servants or otherwise, beyond the sum of Fifty Dollars, at which amount this telegram is hereby valued, unless a greater value is stated in writing hereon at the time the telegram is offered to the Company for transmission, and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent thereof.” Such a condition is a reasonable regulation within the purview of the federal statute, (p. 429).</p> <p>4. Same — Condition Limiting Free Delivery Limits Valid.</p> <p>A condition in a contract for the transmission of a telegram, prescribing free delivery limits to the radius of one mile in cities of 5,000 population or more, and to one-half mile in smaller towns, is a reasonable regulation, (p. 433).</p> <p>5. Same — Conditions Limiting Time for Presentation of Claim Valid.</p> <p>A condition in such contract relieving a telegraph, company from liability for damages, unless the claim therefor is presented in writing within sixty days is also a reasonable and valid regulation, (p. 432).</p> <p>6. Same — Conditions in Contract Binding on Addressee.</p> <p>All just and reasonable conditions and regulations, prescribed in a contract between a telegraph company and the sender of a message, are binding on the addressee, whether his action to recover damages for breach of duty be in tort, or in as-sumpsit on the contract, (p. 432).</p>

Action by Charles S. Cain against the Kanawlia Traction & Electric Company. Verdict and judgment for plaintiff, defendant’s motion to set aside tbe verdict and to grant a new trial overruled, and it brings error.

Original mandamus proceeding by the State, on the relation of A. J. Kincaide, against the Board of Canvassers of the City of Montgomery and others, heard with proceedings entitled as follows: State ex rel. Hiram Sizemore v. A. J. Mullens, Mayor, etc., et al. State ex rel. S. M. Brock v. A. J. Mullens, Mayor, etc., et al. State ex rel. Perry C. Cook v. A. J. Mullens, Mayor,etc., et al. State ex rel. V. B. Stover v. A. J. Mullens, Mayor, etc., et al. State ex rel.

<p>1. Elections — Canvassing Board Cannot Refuse Certificates of Election or Try Title to Office.</p> <p>A municipal council, sitting as a canvassing board to canvass the returns of a municipal election, has no authority or jurisdiction to withhold or refuse to issue to the several candidates voted for at such election certificates setting forth according to the truth as shown by such canvass the number of votes received by them, or with or without notice, to try their right or title to the offices to which on the face of the returns such candiates appear to have been elected, (p. 449).</p> <p>2. Mandamus — Canvassing Board May Be Compelled to Issue Certificates to Candidates Showing Votes Received.</p> <p>When the members- of such canvassing board, or a majority thereof, after canvassing the returns of such election and ascertaining the result thereof, neglect and refuse to issue and transmit to the candidates so voted for certificates showing the number of votes received by each, they may by mandamus be required to reconvene and discharge in respect thereto the duties imposed upon them by law. (p. 450).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Cora Quinn against B. T. Flesher and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Logan County.</p> <p>Action by J". L. Chaffin against the Main Island Creek Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Courts — Quieting Title — State May Determine Title of Nonresident to Realty and Provide Methods for Imparting Notióe.</p> <p>The general control possesed by the state over property within its borders carries with it the power through its courts to protect titles to land situated therein against the claims of nonresidents upon whom it is impossible to obtain personal service. Though the state’s process goes not out beyond its borders to bring the person of a nonresident within its jurisdiction, yet it may determine the extent of his title to real estate within its limits, and, for the purpose of such determination, may provide any reasonable methods of imparting notice, (p. 466).</p> <p>2. Quieting Title — Circuit Court May Determine Title to Land as -Against Nonresident Defendant and Grant Relief by De- . oree in Rem.</p> <p>The circuit court of the county wherein the land lies has jurisdiction, on order of publication, to hear and determine the claim of a plaintiff that a nonresident defendant holds title to such land as trustee for the benefit of the plaintiff and subject to his right to have conveyance thereof made to him pursuant to the agreement alleged to exist between them. And if, upon full and satisfactory proof, it determines the right to exist as plaintiff alleges, the court may grant relief by a decree in the nature of a decree in rem, appointing a special commissioner to convey the legal title, (p. 468).</p> <p>3. Appearance — Appearance to Challenge Jurisdiction is Not a Submission to Jurisdiction.</p> <p>A defendant who appears in a cause for the special purpose of making a motion challenging the jurisdiction of the court in which such cause Is pending does not thereby submit to such jurisdiction, whether his motion does or does not prove to be well founded, (p. 369).</p>

<p>Appeal from Circuit Court, Wayne County.</p> <p>Suit by R. B. Lemmon against Fisher F. Scaggs. From a decree in favor of defendant, plaintiff appeals.</p>

<p>1. Judgment — Not Conclusive as to Persons Not Parties.</p> <p>A decree against a husband and stepfather in litigation concerning the real property of the wife and children, to which they are not parties, does not conclude them or any- of them, (p. 475).</p> <p>2. Easements — User of Private Way Unobjecied to Presumptively Adverse.</p> <p>Open, continuous and notorious use by an owner of land, of a private way over an adjoining tract owned by another person, known, acquiesced in, unobjected to and unprotested by the latter, is presumptively adverse to him and enjoyed under a bona fide claim of right, (p. 480).</p> <p>3. Same — Private Way by Subscription.</p> <p>Such use for a period of ten years, in the absence of proof of any circumstance altering its character, ripens into perfect • title to an easement over the adjoining or neighboring land, by subscription, (p. 480).</p> <p>4. Same — Right to Maintain Private Way.</p> <p>A way through enclosed lands, burdened or obstructed by gates or. bars and so used for such period, is presumptively a private way, notwithstanding its use to some extent by the general public, and the claimant of the way, as a private one appurtenant to his land, is not required to prove some act indicative of an indepent assertion of right, beyond that shown by his open, notorious and known user, in order to establish or maintain the easement, (p. 482).</p> <p>5. Same — Description of Private Way in Suit to Enforce.</p> <p>In describing or defining such a way in a bill filed for vindication of the title and right of the owner of the easement, it suffices to use such terms as would enable a person going upon the land, to find and identify the way by reference to them, (p. 483).</p>

<p>1. Equity — Demurrer is Not Waived by Answering and Submitting Cause Without Setting for Argument.</p> <p>Failure of a defendant to cause his demurrer to a hill to be set down for argument and formally disposed of, his filing an answer and submission of the cause upon the bill, answer and“ proof, do not work an abandonment or waiver of the demurrer, and he may rely upon it, on an appeal from a decree impliedly overruling it by an award of the relief sought by the bill. (p. 489).</p> <p>2. Same — Demurrer Though General Beaches all Defects and is Not Waived by Failure to Set for Argument.</p> <p>In such case, his right is not varied nor limited by the fact that the demurrer is general in its terms, stating, as ground thereof, only insufficiency of the bill in law. (p. 489).</p> <p>3. Appeal and Erkob — Bill Demurred to Cannot be Amended or Treated as Amended on Appeal.</p> <p>Nor, to avoid the consequences of a demurrer well taken and so overruled, can the bill be amended in the appellate court or there treated as having been amended, (p. 489).</p> <p>4. Cancellation of Instruments — Equity—Bill Must Show Defendant’s claim of Title or Interest, and Not Doing So is Insufficient.</p> <p>It is essential in a bill in equity, to state the claim of title or interest of the defendant in the subject matter of the bill, whether it be a claim of title to property, an obligation to the plaintiff or any other essential element of a cause of action against him and failure to do so constitutes a defect in the bill precluding right to relief thereon, in the absence of a waiver or an amendment curing it. (p. 487).</p> <p>5. Equity — Defective Bill is not Aided by Answer Where Demurrer is Filed, and Decree Thereon Will he Reversed.</p> <p>Though, in some instances, a defective hill may he aided hy facts disclosed by an answer to it, if no demurrer thereto has been interposed, it is otherwise if the sufficiency of the hill has been challenged hy a demurrer. In the latter case, a decree predicated on a fatally defective hill will be reversed, notwithstanding disclosure by an answer, of the essential facts omitted, (p 488).</p> <p>6. Cancellation op Instruments — Defendant Named in Caption and Served, hut Against Whom Cause of Action is Not Stated, Need Not Defend.</p> <p>To make a person a party to a hill in such manner as to require him to answer and make defense thereto, it must allege a cause of action against him, in the body thereof. Naming him as a defendant in the caption of the hill and causing process to he served upon him do not suffice, (p. 488).</p> <p>7. Equity — Statute Describing Form of Bill Does Not Dispense With Statement of Cause of Action.</p> <p>The relaxation of technical' and formal requirements of a hill in equity, wrought hy sec. 37 of ch. 125 of the Code, prescribing a statutory form of bill, does not excuse omission of a sufficient statement of a cause of action against the defendant, in the body or narrative part of the hill. (p. 488).</p>

Certified Questions from Circuit Court, Randolph County. Suit by E. Clark Ice against A. D. Barlow, and suit-by E. Clarke Ice and others, partners as the Elk Grove Realty Company, against A. D. Barlow. Demurrers were overruled, and the questions arising thereon certified to this court.

<p>Bankruptcy' — Trustee Cannot Sue in Equity to Recover Unlawful Preference, Where Remedy at Law Adequate.</p> <p>Tlie remedy at law being adequate, equity is without jurisdiction to entertain a suit brought by a trustee in bankruptcy solely to recover back money uftlawfully paid by the insolvent debtor to one of his creditors in preference to others, in violation of the Federal Bankruptcy Act. Section 2, ch. 74, Code of W. Va. (1918) has no application in such case.</p>

<p>1. Bailment — Bailee in Possession May Sue for Injury to Property.</p> <p>A bailee having the actual possession of animals may maintain an action to recover damages for wrongfully killing or injuring them. (p. 498).</p> <p>2. Railroads — Driving Cattle on Track Without Looking or Listening Constitutes Negligence Precluding Recovery.</p> <p>Where one in charge of cattle conducts them across a railroad track at-a crossing, without looking or listening for the approach of trains, and some of the cattle are struck and injured by a train moving on said railroad, his negligence in so conducting them upon the crossing without looking or listening for the approach of the train will preclude the recovery of damages for the injury, although the servants of the railroad may 'have been negligent in failing to ring the bell or blow the whistle before reaching the crossing, unless it appears that those in charge of the train could have stopped the same in time to have prevented the injury after discovering that the cattle were in a position of danger, or after such discovery should have been made by the exercise of the lookout required of those in charge of locomotives when approaching crossings, (p. 498).</p>

Certified Question from Circuit Court, Cabell County. Action of assumpsit by J. S. Thurmond and others, as executors of W. D. Thurmond, deceased, against the Guyan Valley Coal Company. Demurrer to second and third special counts sustained, and question certified.

<p>Error to Circuit Court, Logan County.</p> <p>Action in assumpsit by G. Elias & Bro., a corporation, against tbe Boone Timber Company. Judgment for plaintiff, and defendant brings error.</p>

Action of assumpsit by John H. Custard, as trustee in bankruptcy of the Bluestone Construction Company, against C. S. McNary and others. Judgment for plaintiff, and defendants bring error.

<p>1. Malicious Prosecution — Party Instituting Prosecution Liable for Injury by Officer Acting Under Warrant.</p> <p>As a general rule one wlio sets a prosecution in motion by suing out a warrant and placing it in the hands of an officer is legally liable in damages for any injury done to another by the officer under authority of the writ. (p. 522).</p> <p>2. Same — Want of Probable Cause and, Malice Necessary; Inference from Want of Probable Cause is Rebuttable.</p> <p>In an action for malicious prosecution, to recover, the plaintiff should show want of probable cause and malice; and while malice may be inferred from want of probable cause, the inference is not a necessary one; it may be rebutted from the facts and circumstances of the case. (p. 522).</p> <p>3. Same — Want of Probable Cause, and Malice for Jury.</p> <p>Where on the trial of such an action the evidence of want of probable 'cause and of malice is substantial, the question of fact should he submitted to the jury. (p. 522).</p>

Action by D. E. Cline against W. G. McAdoo, Director General of Railroads. Demurrer to plaintiffs evidence was joined in by plaintiff, and there was conditional verdict for plaintiff and judgment thereon by the court, motions to set aside the verdict as excessive and for a new trial overruled, and defendant brings error.'

Action by the Detroit Steel Products Company against the Daily Telegraph Printing Company. Judgment for defendant upon a directed verdict, and plaintiff brings error.

Suit by Hattie Harrison against George W. Harman, W. F. Harman, the Virginia-Pocahontas Coal Company, the Carter Coal Company,‘and R. E. Wood Lumber Company, consolidated with suit by the Pocahontas Coal & Coke Company against J. S. Gillespie and others, and suit by the Pocahontas Coal & Coke Company against W. F. Harman and others.

Suit by L. E. Tierney against the United Pocahontas Coal Company, the Flat Top National Bank, and others, in which defendant bank joined plaintiff: in his contentions. ' Cause referred to a commissioner, and from a decree of the court for plaintiff: and for defendant Flat Top National Bank,- the other defendants appealed.

<p>PARTNERSHIP — Partner After Accounting Gan Sue at Law to Recover Part of Debt Assigned to Him.</p> <p>Where in the division of the assets of a partnership there is' transferred to each member an aliquot part of a debt due such partnership, and the debtor upon being advised thereof agrees to pay each partner the amount so assigned to him, each of the partners may thereafter maintain a suit at law to recover such part so assigned to him.</p>

Certified from Circuit Court, Braxton County. Bill by Bruce A. Heater against Homer J. Lloyd, the People’s Bank of Burnsville, and J. I. Bender, its receiver. Demurrer to bill sustained on each ground assigned, and bill dismissed as to defendant Bank and its receiver, with leave to plaintiff to amend, and the correctness of such ruling certified.

Bill for injunction by T. E. Hood and others, taxpayers, in behalf of themselves and others similarly situated, against the City of Wheeling and its Mayor and Members of the City Council. From a decree dissolving an injunction plaintiffs appeal.

Action by V. C. Yoho against Mose Thomas. Judgment for plaintiff before a justice, and from a directed verdict for defendant on a trial de novo plaintiff brings error.

Action by L. B. Farley against t^ie Crystal Coal & Coke Company and five others-. Demurrer to declaration overruled, verdict and judgment for plaintiff, and defendants bring error.

Bill to enforce vendor’s 'lien by D. E. Cox against D. L. Davis and others. From a decree dismissing the bill, plaintiff appeals; D. L. Davis being sole appellee.

Action by tbe Fairview Fruit Company against H. P. Brydon and Richard Brydon, partners, doing business as H. P. Brydon & Bro. Judgment for plaintiff, and defendant brings error.

<p>Original prohibition by the State of West Virginia, on relation of the Wilkes Insurance Agency, against James Damron, Judge of the Circuit Court of Wyoming County, and others.</p>

Certified from Circuit Court, Marion County. Bill for an accounting by the First National Bank of Fair-mont and others against Henry F. Smith and others, as directors. Demurrer to bill overruled, and question certified.

<p>Appeal from Circuit Court, Wyoming County.</p> <p>Action by Charles Wagner and others against A. D. Beavers. Decree for defendant, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Consolidated action by John Y. Hite against Mary J. Don-nally and others. Judgment for plaintiff on demurrer, and defendants appeal.</p>

<p>1. Deeds — Effect as Merging Prior Agreements Stated.</p> <p>In so far as a deed varies from a prior executory contract pursuant to which it is executed, such departure is presumed to represent a change mutually agreed upon by the parties before its execution. In such form it represents the final act of the parties, and merges in it all antecedent agreements, negotiations and conversations, and is conclusive in the absence of a showing that the variance is due to fraud or mutual mistake, (p. 647).</p> <p>2. Reformation of Instruments — Proof to Correct Variance From Executory Contract Must fie Clear and Convincing.</p> <p>To- warrant reformation of such a deed to conform, with an executory contract, evidence that the variance was due to fraud or mutual mistake must be clear and convincing, (p. 647).</p> <p>3. Corporations — Right to Sue in Corporate Name After Conveyance of Entire Property Stated.</p> <p>Where a corporation by deed conveys to another all of its property, real and personal, together with all of its capital stock, but reserves the privilege of using its corporate name for the purpose of bringing any suit necessary or proper to enforce rights reserved by the deed, it may properly institute such a suit in its corporate name without joining as parties the stockholders of record at the date of the deed or indicating that it is a suit for their use. The retention of the corporate name for such purpose is in substantial conformity with the provisions of section 59, ch. 53, Code. (p. 650).</p> <p>4. Interest — Interest in Judgment on Note to he Allowed as Fixed by Contract.</p> <p>Where ai note by its terms bears interest at a rate less than 6 per cent per annum, a decree for payment of the aggregate sum due thereon, :ncluding principal and interest at the specified rate to the date of the decree, should provide for payment of interest at the same rate upon the sum so ascertained from the date of the decree till paid; and a decree which uses the indefinite phrase “with interest thereon,” not indicating the rate, will be modified so as to specify the rate fixed by the contract, (p. 652).</p> <p>5. Costs — Award to be Made to Party Substantially Prevailing.</p> <p>Costs are awarded ito the party who substantially prevails, in this court, (p. 652).</p>

<p>1. Executors and Aministrators — Executor May Renew Testator’s Note.</p> <p>An execulor may, in the exercise of a reasonable discretion consistent with the diligent and careful administration of the estate, the creditor consenting, postpone payment of an indebtedness created by the testator in the form, of a negotiable note, and for that purpose renew such note to afford opportunity to pay it out of the assets of the estate, (p. 655).</p> <p>2. Same-Executor May Renew Testator’s Note by Signing in Representative Capacity and Tims Avoid Personal Liability.</p> <p>In the renewal of süch a note the executor may, in order to avoid personal liability for the debt, sign the note in his representative character, and if in so doing he discloses by appropriate terms the name of the testator or estate for which he assumes to act,.the estate, not the executor personally, is bound thereby, (p. 654).</p> <p>3. Bills and Notes — Maher in Representative Capacity Not Personally Liable.</p> <p>Under the provisions of section 20 of the Negotiable Instruments Law (section 20, ch. 98A, Code), where an instrument contains, or a person adds to his signature, words indicating that he signs in a representative capacity, he. is not personally liable thereon if he was duly authorized to execute it. (p. 656).</p>

<p>1. Carriers — Relation of Carrier and Passenger is personal in its Nature.</p> <p>. The relation of carrier and passenger is personal in its nature, and neither can with impunity disregard the reciprocal rights and obligations of the other, (p. 661).</p> <p>2. Same — Personal Effects May he Carried, as Baggage.</p> <p>The passenger may, as an incident of the contract for transportation, carry with him as baggage such personal effects as are reasonably necessary for the convenience and comfort of one in his position in life and consistent with the purpose of the journey, (p. 660).</p> <p>3. Same — Baggage Does Not Include Things Carried by Passenger as Favor to Another.</p> <p>But the baggage service afforded by the carrier is only for the convenience of the passenger, and, except in rare cases, is limited to his own personal effects, and does not include those carried b'y him as a favor to another, (p. 660).</p> <p>4. Same — Owner of Personal Effects Carried by a Passenger Can. not Recover for Loss or Injury Without Proof of Carrier's Gross Negligence or Willful Misconduct.</p> <p>Where a passenger, without disclosing to the carrier the true ownership thereof, carries as her own baggage the personal effects of another, a relative, but not a member of her own immediate family, and who does not accompany her on the journey, the carrier is responsible therefor only in the capacity of gratuitous bailee, and the owner cannot recover for loss or injury thereto in the absence of proof that the carrier has been guilty of gross negligence or willful misconduct, (p. 662.)</p> <p>5. Same — Trunk Bearing Name of Owner of Effects Carried hy a Passenger is Not Notice That Contents Are Not Those of Passenger.</p> <p>The mere presence of the name of the owner upon the trunk is not notice to the carrier that its contents are not those of the passenger, (p. 662).</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Thomas V. Wells against the County Court of Marion County to recover for personal injuries. Judgment for defendant, a new trial was granted, and defendant brings error.</p>

<p>1. Municipal Cobp orations — Special Paving Assessment Against City Lot Not Complying ’With Charter Then in Force Invalid..</p> <p>A special assessment against a city lot for cost of paving, made agreeably to the provisions of a repealed charter and substantially variant from the requirements of a new or amended charter in force at the time of the improvement and assessment, is fatally defective and unenforceable, (p. 669).</p> <p>2. Statutes — Unconstitutionality of Separable Provisions of Municipal Charter Statute Do Not Wholly Invalidate it, or Deny Effect to Clause Repealing Former Charter.</p> <p>Unconstitutionality, if. any, of clearly separable provisions of a municipal charter statute, do not wholly invalidate it, nor deny effect to a clause thereof repealing the former charter, (p. 669).</p> <p>3. Municipal Coepoeations — New or Amended Charter Statute, in so 'Far as Constitutional, is Law of Municipality, Though Judicial Proceedings Are Pending to Test its Constitutionality.</p> <p>Such new or amended charter, in so far as it is constitutional and valid, is the law of the corporation, notwithstanding the pendency of judicial proceedings to prevent it from going into effect, on the ground of unconstitutionality, (p. 669).</p> <p>4 Constitutional Law — Neither Courts Nor Officers Can Prolong Life of Repealed Statute.</p> <p>Neither the courts nor individuals acting as officers can prolong the life of a repealed statute, (p. 669).</p> <p>5. Ootioers — Statutes—Acts of De Facto Officers Valid; There Cannot lie a De Facto Law in Territory of Undisputed Sovereignty.</p> <p>Though there may he de facto officers whose acts are valid, there can be no such thing as a de facto law, in territory under the jurisdiction of an undisputed sovereignty, (p. 630).</p> <p>6. Same — Acts of De Facto Officers to he Valid Must Comply With Applicable Law.</p> <p>To be valid, the acts of de facto officers must comply with the requirements of applicable law, to the same extent and in the same manner as valid acts of de-jure officers, (p. 630).</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by Martba Ellen Snider against Charles W. Robinson and others. From decrees in favor of plaintiff, defendants appeal.</p>

<p>1. Evidence — Misconduct of Parties Intended to Prevent Pair Trial Admissible to Prove Falsity of His Claim or Defense.</p> <p>' Evidence of misconduct of a party to an action, having for its motive or purpose prevention of a fair trial, by intimidation or corruption of a witess or otherwise, is admissable against him, on the ground of its tendency to prove the falsity or fraudulent nature of his claim or defense, (p. 68-2).</p> <p>2. Same — Witnesses—Party’s Letter Offering Money for Declining to Testify Was Admissible in Evidence Against Writer.</p> <p>A letter written to a witness, by a party to an action, imploring him not to testify in the case, denying his knowledge of any material fact, offering to pay him money, if needed, after a trial unattended by him, and admonishing him of danger of arrest on a criminal charge, if he should come into the State, is admissible evidence against the writer, (p. 682).</p> <p>3. Same — Circumstantial Evidence Admissible to Prove Genuineness of Letter, Although Ordinarily Proved by Handwriting.</p> <p>Though genuineness of a letter, a fact essential to its admission in evidence, is ordinarily proved by testimony to the handwriting of its author, circumstantial evidence is admissible for the purpose, (p. 683).</p> <p>4. Same — Circumstances Sufficient to Establish Authenticity or Origin of Typewritten Letter, Signed on Typewriter, Stated.</p> <p>The authenticity or origin of a typewritten letter, signed in typewriting, may be established or shown by the character of the paper and envelope used, the place and circumstances of its mailing, the postmarks, the direction for its return in case of non-delivery and manifest probability that the subject matter of its contents was known only to the apparent writer and the person to whom it was written and mailed, (p. 683).</p>

<p>1. Specific Performance — Contract .for Purchase of Coal Not Subject.</p> <p>Equity will noit entertain a suit for the specific enforcement of a contract for the pfirchase of coal, to be thereafter mined and shipped on the purchaser’s orders, in stated quantities monthly, until the entire quantity purchased has been delivered. The remedy by an action at law for the breach of such contract is adequate, (p. 687).</p> <p>2. Same — Insolvency of Seller Does Not Give Jurisdiction to Specifically Enforce Contract for Purchase of Coal.</p> <p>Insolvency of the seller does not confer .-jurisdiction on a court of equity to enforce such contract; the accident of insolvency does not affect .the question of jurisdiction in such case. (p. 687).</p> <p>3. Corporations — Stockholders of Insolvent Corporation Map Organize New Corporation Believed of Obligations of Old.</p> <p>The stockholders of an insolvent corporation, whose property is about to be sold in a judicial proceeding against it, may organize a new corporation for the purpose of buying the property and if their purchase at the judicial sale is fair and free of fraud or collusion, the new company will take the property relieved of the obligations and contracts of • the old company unless expressly assumed, (p. 646).</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by J. Clark Miller against Edith. R. Hawker to enforce a vendor’s lien. Decree for plaintiff, and defendant appeals.</p>

<p>Deed — Equity Will Not Cancel Deed for Breach, of Condition Subsequent.</p> <p>Equity will not entertain a suit by tbe grantor to cancel Ms deed, granting land upon a condition subsequent, because of a breach thereof, (p. 698).</p> <p>2. Same — Breach, of Conditions Does Not Revest Title in Grantor, but Some Positive Act is Necessary to Do So.</p> <p>The mere breach of any or all the conditons upon which an estate has been granted does not revest title in the grantor, for he may waive his right to declare a forfeiture. Some positive action is necessary to effect a forfeiture and revest the title, (p. 698).</p> <p>3. Same — Ejectment is Grantor’s Remedy for Breach, of Conditions Where Be is Not in Possession.</p> <p>The grantor’s remedy for a breach of conditions, if he is not in possession of the land, is an action of ejectment, by virtue of section 16, chapter 93 of the Code. (p. 698).</p> <p>i. Quieting Title — Remedy Proper to Cancel Deed by Grantee on Conditions Which Have Been BroJcen, if Plaintiff is in Possession.</p> <p>Where the grantee of land upon a condition has conveyed it to others, and there has been a breach of the condition, the original grantor may maintain a suit in equity to cancel such subsequent conveyances as clouds upon his title, provided he is in possession; and a bill to remove cloud, which fails to allege possession in the plaintiff, is bad on demurrer, (p. 699).</p> <p>5. Deeds — Conditions May be Annexed to Any Estate.</p> <p>Conditions may be annexed to estates of any duration, whether for years, for life or in fee. (p. 699).</p> <p>6. Same — Reserved Right to Revoke Voluntary Deed to S071 if He Should Become a Drunkard, etc. is Valid.</p> <p>A reservation in a voluntary conveyance of land by a father to his son, of a right ‘to revoke the deed, if his son should become a drunkard, or cruel or abusive to his father or mother, or uselessly involved in debt, violates no principle of public policy and is valid; and on a breach of any of the conditions the grantor may terminate the estate, (p. 698).</p> <p>7. Samé — Holder of Conditional Estate Can Pass No Better Titio Than He Has.</p> <p>The holder of a conditional estate can pass no better title to ¡his grantee than he himself had. (p. 699).</p>

<p>1. Wills — Equity Will Construe Wills Only When 'Necessary.</p> <p>Generally jurisdiction in equity to construe wills arises only in cases where there is necessity tor such construction in relation to actual controversies as to matters which are proper subjects of equity jurisdiction. There must be something more in the suit than the mere construction of an in-, strument. (p. 703).</p> <p>2. Trusts — Equity Will Construe Instrument Only Where Immediate Necessities Require Construction.</p> <p>A fiduciary will be permitted to come into a court of equity, for construction of an instrument under which he is acting, only for the purpose of guidance in the administration of the estate entrusted to his care as immediate necessities may require, and a court of equity will decline to extend its construction to cover contingencies which may never arise, or, if at all, at some remote date. The decision of such questions will be postponed for future consideration upon the application of such fiduciary, or other person interested, when the occasion therefor arises, (p. 703).</p> <p>3. Equity— Cross-Bill Must be Limited in Scope to Subject Matter of Bill.</p> <p>A cross bill, or an answer in the nature of a cross bill, praying for relief, must be limited in its scope to the subject-matter of the bill. It cannot introduce new and distinct matter, even though the same may be related in ■ some way to that set up in the bili. (p. 704).</p> <p>4. Same — In Executor’s Suit for Construction of Will, Widow’s Demand, for Assignment of Dower was not Proper for Cross-Bill.</p> <p>In a suit brought by an executor of a decedent’s estate to obtain the aid of a court of equity in the administration thereof, an answer in the nature of a cross bill filed by the testator’s widow asking that her dower be assigned in the real estate, and also asking that a claim which she asserts against her husband’s estate may be adjudicated, and the amount thereof determined and decreed to her, does not present proper matter for a cross bill or answer in the nature of a cross bill, and an exception thereto is properly sustained. (p. 704).</p>

<p>1. Fbandulent Conveyances — Plaintiff Has Burden of Proving Fraud,; Where Alleged, Fraudulent Transaction is Between Near Relatives Blight Evidence will Shift to Defendant the Burden of Showing Bona Fides.</p> <p>Generally the burden of proof rests on him who charges fraud and not on him whose conduct is charged to be fraudulent. But where the transaction assailed is between brothers or other near relatives, only slight evidence is required to shift the burden of showing its bona fides. (p. 710).</p> <p>2. Same — Proof May he Circumstantial.</p> <p>In cases where i't is difficult, if not impossible, to demonstrate by direct proof the fraudulent nature of the transaction, the circumstances surrounding the parties and their dealings one with another frequently constitute the only available evidence and may be sufficient to establish the fraudulent intent, in the absence of direct and satisfactory proof to the contrary, (p. 710).</p> <p>3. Same — Proof of Circumstances and Presumption of Susceptibility Relative to FavoHtism May Shift Burden of Establishing Freedom From Fraud to the One Charged with Fraud.</p> <p>"Where the transaction assailed is between persons whose relationship by blood or marriage is so intimate as fairly to create the presumption of their susceptibility to influences prompting favoritism by the one towards the other, and the proof introduced or circumstances surrounding the dealings of the parties tend to show that such was the course pursued, the burden of establishing freedom from fraud as against creditors shifts to him who is charged therewith, (p. 710).</p> <p>4. Same — To Overcome Charge of Fraud Secured Creditors Must Prove More Than That Debt is Just and Amount Unpaid; Whei-e Deed of Trust Represents Settlement of Mutual Accounts Between Brothers, the Secured Creditor Must Satisfactorily Explain Character of Each Item.</p> <p>To overcome a charge of fraud and sustain a debt impugned as fraudulent, the creditor secured by the deed of trust must prove more than that the debt is just and the amount thereof unpaid; and -where it represente 'the final result of a settlement of mutual accounts between him and the debtor, his brother, comprising numerous and various items and transactions covering a period of several years, including charges. and counter charges, checks and cash payments, he must also show with reasonable certainty by what combination of the several items such debt was ascertained, and in addition thereto satisfactorily explain the nature and character of each of‘such items, notes and other charges, (p. 711).</p> <p>5. Same — Deed of Trust' Securing Whole Debt Partially Invalid May be Wholly Vacated by Creditor so War as He is Substantially Prejudiced Thereby.</p> <p>Though a debt may to some extent be valid, but otherwise invalid because fictitious or not established with the degree of certainty required by law, a deed of trust purporting to secure the whole of it may be vacated in its entirety at the suit of a creditor in so far as he is substantially prejudiced thereby, (p. 711).</p>

<p>Appeal from Circuit Court, Wyoming County.</p> <p>Súit for injunction by the Mullens Realty & Insurance Company against D. M. Klein and others. Prom a vacation decree dissolving an injunction theretofore awarded, pursuant to the prayer of the hill, plaintiff appeals.</p>

<p>Municipal Corporations — Action on Bond, of Police Officer for Carrying Weapons Must be Maintained in the Naw,e of the Municipality.</p> <p>An action on a bond executed by a municipal police officer for carrying weapons, conditioned as prescribed by section 7 of chapter 148 of the Code, in which the municipality, not the State, is made the obligee, can not be brought or maintained in the name of the State, but must be brought in the name of the municipality, obligee, as plaintiff, the common-law rule applicable not haying been modified or abrogated by statute. If brought in the name of the state, a demurrer to the declaration should be sustained.</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill for injunction by J. C. Conley against William Brewer and others. Temporary injunction granted, motion to dissolve overruled, and injunction made perpetual, and defendant William Brewer appeals.</p>

<p>Error to Circuit Court, Wyoming County.</p> <p>Action by A. L. Mills, Administrator of James Allen Mills, deceased against the Virginian Railway Company. From a ¡judgment setting aside a verdict for plaintiff, be brings error.</p>

<p>1. New Trial — Mistake of Fact Disclosed on Face of Verdict is Good Ground for New Trial.</p> <p>A mistake of fact in a verdict, disclosed on its face or by analysis thereof in the light of the issues and evidence in the case, constitutes good ground for award of a new trial, (p. 737).</p> <p>2. Same — Contradictory and Uncertain Verdict Attributable to Jury’s Mistake in Their Calculations is Good Qh'ound for New Trial.</p> <p>A verdict in an action of assumpsit, involving a claim for purchase money of lumber, cross-ties and mine posts, on the one side, and a demand for purchase money of merchandise asserted by way of set-off, on the other, which treats both accounts as having been sufficiently proved, but allows all of that of the plaintiff and less than half of that of the defendant, on the theory of a settlement between the parties, as of a certain date, is contradictory, uncertain' and attributable to a mistake on the part of the jury, made in their calculations, (p. 788).</p>

<p>Original application for mandamus by the State of West Virginia, on the relation of Isadore Gordon, against the State Board of Control and another.</p>

<p>1. Equity — Defense of Laches May he Made 6y Demurrer When Facts Appear on Face of Bill.</p> <p>The defense of laches may be made by demurrer when the facts upon which such defense is predicated appear from the face of the bill. (p. 749).</p> <p>2. Same — Where Complainant’s “Laches" Injuriously affects the Adverse Party, a Court of Equity Will Decline to Give Relief.</p> <p>Laches in legal significance is delay in the assertion of a claim which works disadvantage to another, and where it appears that by reason of such delay the adverse party would he injuriously affected because of the death of witnesses by whom the truth of the situation could be proven, or because injury might result to him on account of expenditures made upon the land in the way of improvements, or where no claim is asserted until after the land has grown in value, either because of the development of the territory or the discovery of valuable minerals thereon, and such delay in asserting such claim is so long as to lead to the belief that it is. asserted largely because of the increased value of the land and the altered conditions, a court of equity will decline to give relief, (p. 7-19).</p> <p>3. Same — Delay in Assertion of Known Rights to Prejudice 'of Adverse Party is an Estoppel Against Assertion of Such Rights.</p> <p>Where a party knows his rights or is cognizant of his interest in a particular subject-matter, but takes no steps to enforce the same until the condition of the other party has, in good faith, become so changed, that he cannot be restored to his former state if the right be then enforced, delay becomes inequitable, and operates as an estoppel against the assertion of the right. This disadvantage may come from death of parties, loss of evidence, change of title or condition of the subject-matter, intervention of equities, or other causes. When a court of equity sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief, (p. 749).</p>

<p>1. Gifts — Agreement to Malee Gift in Future is Without Binding Effect Until Subject Has Been Delivered to Donee.</p> <p>A promise by the holder of stock in a corporation to pay all the dividends thereafter earned thereon to a certain party, for which promise there is no consideration, cannot be en-foced. It is simply an agreement to make a gift in the future, and has no binding force or effect until the subject of such gift has been delivered to the, donee, (p. 752).</p> <p>2. Contracts — Promise of Party to Contract is Not Good Consideration for Undertalcing of Other Party Thereto Unless it- Imposes Legal Liability.</p> <p>The promise of a party to a"" contract, in order to be a good consideration for the undertaking of the other party thereto, must be such as to impose a legal liability. Where the promise relied, upon as constituting the consideration for the contract does not impose any legal liability upon the promis-sor, it will not ordinarily be held to be a sufficient consideration for the undertaking on the part of the other party, (p. 152).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by George W. Brotherton against George Robinson and others. Judgment for defendants, and plaintiff brings error.</p>