Volume 87 — West Virginia Reports

<p>1. Justices of the Peace — Judgment is Conclusive Against Set- . ■ Off Not Pleaded. ...</p> <p>A defendant in an action, before a justice, of the peace, hav- . , ing a claim against the plaintiff therein for unliquidated damages, not in excess of three hundred ’dollars,. arising out of the same transaction or contract .upon which the plaintiff’s suit is based, because of the provisions of § 55, chap. 50 of the Code, must set the same up in such suit, otherwise he will be thereafter barred from prosecuting any suit therefor; and in case the defendant is found to be entitled to recover, on account of such claim, an amount in excess of that to which the plaintiff is entitled on account of the' claim sued on, he will be given judgment over against the plaintiff for the excess, (p. 3).</p> <p>■2. Fraud — False Representation Without Knowledge, Actionable.</p> <p>One who represents that .a certain condition exists, when ion fact he has no knowledge in regard thereto, will be liable to another who -deals with him upon the faith of- such representation, should'it turn out to be false, (p-. 5).</p> <p>3 Same — False Representation as to Boundaries Without’Knowledge, Actionable.</p> <p>Where one purchases the timber upon a tract of land in reliance upon the representations of the' owner as to the exterior ■ boundary lines thereof pointed out upon-the ground by such owner, which turn out-not -to be the true lines, and the purchaser is deprived of a part of the timber 'he would have obtained, had the owner’s representations been true, he will have a right of action against ,such owner, even though the owner did not at the time he made the representations fcnow the true location of his boundary lines, .(p. 5).</p> <p>4. Same — Reliance on Representations Justified, Though Truth is Discoverable.</p> <p>One who enters into a contract upon the faith of false representations made by the opposite contracting party, will not be 'denied the right to recover any damages he may sustain by reason of such false representations because he could have discovered the truth from other sources, (p. 5).</p> <p>5. Same — Damage is Difference Between Actual and Represented, Value.</p> <p>In an action for fraud and deceit, by the vendee of property, based upon false and fraudulent representations of the vendor, the true measure of damages is the difference between the value of the property actually received and its value had it been as represented, (p. 6).</p> <p>6. Same — Difference Between Actual and. Represented Value of Property Involved is Measure of Damages.</p> <p>One who purchases the timber upon a tract of land upon the faith of representations made to him by the owner as to the location of the exterior lines thereof, and loses some of the timber because such representations turn out to be false, is entitled to recover, in an action of fraud and deceit, the difference between the actual value of the timber he received and that which he would have received had the representations been true. (p. 6).</p> <p>(Williams, President, absent.)</p>

Suit for specific performance by Doyal Moore, an infant, and others against J. K. Moore, pending which J. K. Moore died, and the case was revived against H. P. Moore and others as his heirs and personal representatives. Decree for plaintiffs, and defendant H. P. Moore appeals.

Suit for injunction by Albert H. Cole and others, trustees, etc., against Dixie (Browning) Scamonds and others. Decree for plaintiffs, and defendant Seamohds appeals.

Action for malicious prosecution by Sidney Burdette against K. G-oldenberg, doing business, etc. Verdict for plaintiff for-$50.00 was set aside on bis motion, and defendant brings error.

Action by the Piedmont Grocery Companjr against Arta E. Hawkins and the United States Fidelity & Guaranty Company and others. Demurrer of defendant United States Fidelity & Guaranty Company, surety on the fidelity bond of defendant Hawkins, to plaintiff’s evidence sustained, and plaintiff adjudged to take nothing 'by suit, and plaintiff brings error.

<p>1. Quieting Title — Assertion of Invalid Title Held a Cloud on the Title.</p> <p>Assertion of an invalid claim to the title to real estate, based upon a mere semblance thereof, in the form of a muniment of title, constitutes a cloud on the good and valid title under which the property is actually held, and the owner in possession of the property under the valid title may maintain a suit in equity to remove or dissipate the cloud, by such a decree as may be necessary to effect such result, (p. 59).</p> <p>2. Same — Adjudication of Good Title in Plaintiff Precludes Right Claimed by Defendant.</p> <p>Cancellation of the instrument under which the unfounded claim is set up is ordinarily the means by which cloud is removed from title, but is not exclusive; and the result may be effected by mere adjudication of good title in the plaintiff in such suit, which forever precludes the right so claimed by the defendant, (p. 60).</p> <p>3. Same — Invalidity of Instrument Toy which Title is Claimed is No Bar to Suit.</p> <p>Invalidity of the instrument or provision under which the claim is set up, on its face, constitutes no bar to a suit to remove cloud from title, if the true owner is in possession of the property affected by the cloud, (p. 61). -</p> <p>4. Same — Statutory Remedy Does Not Preclude Equitable Remedy.</p> <p>Nor does a remedy given by statute, for relief under such circumstances, - preclude right to- invoke the remedy in equity. (p. 60).</p> <p>6. Same — Claim Based on Will Insufficiently Describing Land is a Cloud on Title.</p> <p>A claim of title set up under the invalid one of two inconsistent and contradictory descriptions of a .piece of real estate, found in a will by which a piece,- parcel or lot of land is divided between two devisees, constitutes a cloud upon the title of the portion of the land against which it is asserted, (p. 59).</p> <p>6. Deeds — Wills—Where Particular Description Does Not Harmonize wfith Intention of Testator or Grantor, the General Description Will Prevail.</p> <p>Ordinarily, a particular description of land found in a deed or will prevails over a general description thereof found in the same instrument; hut, if the general description harmonizes with the manifest intention of the parties, in the case of a deed, or of the testator, in the case of a will, as disclosed by any proper evidence, including the terms of the instrument, and the particular description does not, the ordinary rule of preference does not apply ana the general description prevails, (p. 61).</p> <p>'7. Boundaries — Wills—General Description by Street and Number Held to Prevail Over Metes and Bounds.</p> <p>If a will devising an unnumbered part of a city lot, on which there is a house bearing a certain number, describes it by the number of the house and name of the street on which it fronts, calling the property a “house and lot,” and then describes the lot by metes and hounds so as not to include all of the ground covered by the house, the general description conforming to the manifest intent of the testator, to give the house for comfortable use and enjoyment, prevails over the particular description, (p. 62).</p> <p>■3. Wills — Parts of Particular Description and General Descrip-, tion May be Used.</p> <p>In such case, parts of the particular description found to be in harmony with the testator’s intention and the general description may be used in defining the limits of the subject of the devise., (p. 65).</p> <p>•.9. Same — Devise of “Dwelling House” Passes Title to Latid in Connection Therewith.</p> <p>A devise of a dwelling house, by a description sufficiently definite and certain to afford means of identification thereof, passes title to all of the ground covered by the house and such additional and adjacent land of the testator as was used in connection with the house, at the date of execution of the will, and is necessary for reasonable use and enjoyment thereof, in the absence of a clear and unambiguous expression of intention to the contrary, (p. 63).</p> <p>10. Judgment — Decree in Suit to Quiet Title Held Not to Preclude ■ Suit to Establish Title.</p> <p>A decree adverse to the plaintiff in a suit in which title to property is claimed by inheritance-and under an alleged trust does not preclude, by adjudication, right in the same person to maintain a second suit against the same defendant, for vindication of right and title to a par.t of the same property, vested in the former by a devise, (p. 63).</p> <p>II. Wills — Suit to Quiet Title Held, Not an Election, Preventing' Suit to Establish, Title Under Devise.</p> <p>Nor does the prosecution of such suit preclude right to-maintain the second, on the theory of an election on the part of the plaintiff, not to take title under the will; the election if any, being deemed, in the absence of proof to the-contrary, to have been made under a mistake as to the nature of the plaintiff’s rights in the premises, (p. 63).</p> <p>(Williams, President, absent).</p>

Suit by J. K. Staggers against L. H. Hines to establish a right of way appurtenant. Tfrom a decree dissolving an injunction forbidding the obstruction of a road over defendant's land, by which plaintiff claimed to use as a right appurtenant and reserving a right to reinstate the injunction, plaintiff appeals.

Petition for writ of prohibition by the People’s United Telephone System against William M. Peltner and others. Demurrer to the petition filed by defendant Peltner sustained, and petition dismissed, and plaintiff bring’s error.

Creditors’ suit by the First National Bank of Webster Springs and others against John T. McGraw, consolidated with a petition by defendant McGraw against the Grafton Banking & Trust Company and others to enjoin the sale of collateral. Petition granted, its motion to dissolve the injunction denied, and the Grafton Banking & Trust Company appeals.

Questions Certified from Circuit Court, Mineral County. Action for statutory libel by W. H. Barger against E. E. Iiood, Frank J. Payne, and others. Demurrer to declaration overruled, and two special pleas allowed to be filed, and two other special pleas rejected and rulings certified.

Suit by B. D. Gibson and others, administrators of William A. Morgan, deceased, against John 0. Aglionby and another. Decree for defendant named, and plaintiffs appeal.

Suit for injunction by Michael Hoar and others against the County Court of Lewis County and others. From a decree dismissing the cause, and dissolving an injunction theretofore awarded, plaintiffs appeal.

<p>Case Certified from Circuit Court, Mineral County.</p> <p>Prank J. Payne was indicted for publishing a criminal libel. His demurrer to the indictment was sustained and the ruling certified.</p>

<p>Error to Circuit ÜQurt, Kanawba County.</p> <p>Action by S. TI. Robertson, executor of John R. Grubb, deceased, against the Coal & Coke Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Suit by John S. Google against Nancy Smith and others. From a decree dismissing the bill for failure to diligently prosecute, plaintiff appeals.</p>

<p>Bbo-keb — Broker Not Entitled to Commission. Where Purchaser Revoked Conditional Contract.</p> <p>Where a real estate agent or broker is employed by the owner to procure a purchaser lor a particular piece of property, and he produces a purchaser who enters into a conditional contract, reserving the right to annul it if the conditions are not fulfilled, and in accordance with the right so reserved he does revoke the same, the broker is not entitled to the commissions stipulated in the contract. Such conditional contract constitutes a limitation upon the broker’s right to commissions.</p> <p>(Williams, Peesidekt, absent.)</p>

<p>1. Justices op the Peace — Plea Denying Partnership or Corporate Existence Not in Abatement, but Defensive.</p> <p>A plea or affidavit denying a partnership or the corporate existence of defendant filed in a suit pending in a justice’s court, is not a plea in abatement, hut a 'defensive plea, and may be interposed at any time before trial, (p. 122).</p> <p>2. CokporatioNS — Former Law Required Plaintiff, Making a Corporation Defendant, to Prove its Existence.</p> <p>Prior to the enactment of section 41 of chapter 125 of the Code in 1882, plaintiff was required under the general issue to prove the fact of the existence of the corporation, as a condition of recovery in the action, (p. 122).</p> <p>3. Justices of the Peace — Appearance and Motion for Continuance Held Not to Preclude Denial of Corporate Existence.</p> <p>Appearance by defendant before a justice on the return day of the writ and moving a continuance to a' later day, on which later day appearance is again made and plea an'd affidavit filed denying the corporate existence of defendant, will not estop defendant to make the defense interposed by such plea and affidavit, (p. 125).</p> <p>4. Same — Appeal and Trial De Novo Held Not to Estop Defendant from Denying Corporate Existence.</p> <p>Nor will an appeal by sucb defendant, from the judgment of a justice to the circuit court, where a trial is had de novo on the pleadings before the justice, estop defendant from denying the existence of the corporation and making the defense interposed by the plea or affidavit putting the same in issue, (p. 125).</p> <p>5. Corporation's — On Issue as to its Corporate Existence, Defendant’s Appearances and Appeal Bond Held Not Prima Eacie Evidence Thereof.</p> <p>On the trial of the issue on such plea or affidavit, such appearances as are recited in the foregoing points and the appeal bond not signed or sealed by defendant with its corporate seal, together will not constitute prima facie evidence of corporate existence, (p. 124).</p> <p>6. Associations — Judgments—Action Held Properly Dismissed for Want of Evidence of Defendant’s Corporate Existence; Dismissal for Failure to Show Corporate Existence Not Bar to New Suit Against Proper Parties.</p> <p>-Where in such suit none of the members of a voluntary association are impleaded, it is not error to dismiss the action for want of evidence of the corporate existence of the defendant. Plaintiff is not thereby concluded by the judgment from bringing a new suit and impleading the proper parties, (p. 125).</p> <p>(Williams, President, absent.)</p>

Suit by Eel. Moore, Jr., against W. A. Bolen and others, to wind up the affairs of the Morgan Oil & Gas Company, a partnership, in which, after final decree of sale and confirmation of- sale of the mining partnership’s property to J. W. Jennings, and his sale to Joseph B. Jennings, the American Iron & Supply Company, a copartnership, intervened by petition and cross-bill to set aside all former decrees in the original suit and subject the property to the payment of its debts.

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by S. C. Bissett against tire Town of Littleton and others. From a final decree dissolving a preliminary injunction and dismissing the plaintiff's bill, he appeals.</p>

<p>Error to Circuit 'Court,. Mingo County.</p> <p>Proceeding by J. W. Luther, begun by notice and petition, to contest the primary nominátion of W. J. MeClaren for the office of státe senator. Proceeding dismissed, and petitioner brings error.</p>

<p>Bbeaoh of the Peace — Complaint and Peace Warrant Held Insufficient.</p> <p>If a complaint upon which, a peace warrant has issued and which is recited in the warrant charges nothing more, by way of specification of grounds for the proceeding, than that the accused had made threats against the complainant, the nature of which is not indicated, and that the latter had good cause to fear an intended offense against his person at the hands of the former, the complaint and warrant are insufficient and a motion to quash the warrant ought to be sustained.</p> <p>(WiiiiAMS, Pbesident, absent.)</p>

<p>Error to Circuit- Court, Kanawha County.</p> <p>Action by Stephen A. D. Shipley against the Yirginian Railway Company. A verdict- for plaintiff in the court of common pleas of Kanawha county was set aside, and plaintiff granted a new trial on the ground of inadequacy of the verdict. The circuit court on writ of error reversed such order, reinstated the verdict, and rendered judgment thereon for plaintiff, and plaintiff brings error.</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Action by J. E. Harris against Thomas E. Welch and others, trading as the Elkins Cooperage Company. Judgment for plaintiff, and defendant Thomas E. Welch brings error.</p>

<p>1. Contracts' — Contract Impossible of Performance as Provided’■ by its Terms May be Executed in Different Way Consistent' With Law.</p> <p>If the manifest purpose of a contract is impossible of accomplishment in the manner in which it was intended to be-effected, on account of a legal obstacle, but can be fully executed in a different way which is consistent with law, it must be permitted to operate in the latter mode. p. 163).</p> <p>2. Landlord and Tenant — Contract of Owner Construed to Require Him to Cultivate Land for His Tenant.</p> <p>A verbal, indefinite and thoroughly informal contract by which an owner of forest land, in consideration of the clearing’ and fencing of a portion thereof by the other party to the-contract, agrees to cultivate it, when cleared, for a certain number of years and yield to such other one-half of' the-crops, creates a term of years in the party clearing and fencing the land and’obligates the owner thereof to cultivate it as if he were the tenant of the other, and, in case of his failure to do so, the lessee may have the work done by others, (p. 163).-</p> <p>3. Same — In Such Case the Lessee is a Tenant From Year to Year,</p> <p>Being yerbal and covering a longer term than can be validly created by a verbal contract, the lease is voidable, but the entry of the lessee and improvement of the land, treated as payment of rent, make him, holding the land for more.than a year, a tenant from year to year. (p. 165).</p> <p>4. Same — Tenancy from Year to Year Can Only he Terminated By Q-iving the Statutory Notice.</p> <p>A tenancy from year to year cannot be terminated against the will of either party, otherwise than by the giving of the statutory notice of intention to terminate at the end of a tenancy year. (p. 165).</p> <p>5. Appeal and Eebok — Omission of Word from Oath to Jury Not Questioned Below is Unavailable on Appeal.</p> <p>Omission from the oath administered to the jury in an action of unlawful entry and detainer, of the word “unlawfully,” which should qualify the word “withholds,” not affirmatively shown to have been specifically brought to the attention of the trial court is not available as a ground of error in the appellate court, (p. 165).</p> <p>(Williams, President, absent.)</p>

<p>1. Contract — Rescission of Partially Executed, Contract is Permitted Only After a Breach Defeating its Object.</p> <p>Rescission of a partially executed contract is not permitted ■for a casual, technical, or unimportant breach -or failure of performance, hut only for a breach so substantial as to tend to defeat the very object of the contract, (p. 171).</p> <p>2. Same — Rescission of Executory Contract Cannot be Sad, Where it is Impossible to Restore the Status Quo.</p> <p>Rescission of an executory contract will not be granted where it is impossible to restore the status quo. If the situation of the parties has been so changed, by part performance of the contract, or by their making arrangements for carrying it out, or by their actions taken in reliance upon its expected ' execution, that they cannot be restored, without loss, to their former situation, as if the contract had not been made, a rescission will not be allowed, (p. 171).</p> <p>3. Same — No Rescission of Executory Contract Toy Party Who Has Waived Performance of Breaches Relied on.</p> <p>Rescission of an executory contract 'will not be granted to a party who has with full knowledge acquiesced in the breaches relied upon for rescission for such time as to indicate a waiver of their performance, (p. 172).</p> <p>(Williams, Pkesident, absent.)</p>

<p>1. Bailment — Defendant Was Not Liable for Use of Machinery to Owner Who Had Leased it to One Using it in Work for Defendant.</p> <p>One who enters into a contract with .another for the doing of certain work cannot be held liable in an action at law by the owner thereof for the rental value of machinery used by such other in the doing of such work, even though it appears that he had knowledge that such machinery belonged to a third party who had leased it to the contractor for the doing of the particular work. (p. 178).</p> <p>2. Same — Defendant Held Not Liable for Use oí Machinery to Owner Who Had Leased it to One Using it in Work for Defendant.</p> <p>Where the owner of machinery leases it to a contractor for the purpose of being used in the execution of certan work which such contractor has undertaken to perform, he cannot hold the party for whom the work is being done liable for the use of such machinery, upon the ground that payments were made to the contractor for such wbrk in advance of the time provided in the contract, (p. 178).</p> <p>.3. Same — One Knowingly Using Another’s Property is Liable for 'Reasonable Talwe of Use.</p> <p>One who, without the consent of the owner, knowingly uses for his own benefit the property of another, will be liable in an action of assumpst to such other for the reasonable value of the use so made of such property, (p. 183).</p> <p>4. Evidence — Testimony in Former Trial by Witness Since Deceased Admissible in Subsequent Trial of Same Case.</p> <p>The evidence of a witness on a former trial of a civil case, who has since died, may be proved on a subsequent trial of the same case. (p. 182).</p> <p>(Williams, Pbesident, absent.)</p>

<p>Error to Circuit Court^ Raleigh County.</p> <p>I. W. Davis was convicted on an indictment containing several counts charging forgery, his motion for a new trial and an arrest of judgment, made after verdict and before sentence, was denied, and he brings error.</p>

<p>Courts — Mandamus Refused; Judges Being Divided in Opinion.</p> <p>Relators were indicted at the September, 1920, term oí the circuit court of Mingo County for murder charged to have ■ been committed by them August 14, 1920. They voluntarily appeared at the same term, entered a joint plea of not guilty, and demanded an immediate trial, which the court refused, but did grant the state’s motion for continuance of the case until the next succeeding January term. To the action so taken they duly excepted, and asked the presiding judge to' sign bills of exception and make them part of the record by an order entered thereon, which he refused to do. Thereupon they obtained the usual alternative mandamus writ, and the members of the court now sitting being unable to agree upon the necessity1 for the peremptory writ, or the possible or probable benefit or advantage to accrue to defendants should it be awarded, it necessarily must be and is refused.</p> <p>(Williams, President, absent.)</p> <p>(Poffenbauger and Miller, Judges, 'dissenting.</p>

<p>Original mandamus by the State, on relation of Eoy J. Kelley, against the City of Grafton and others.</p>

<p>1. Insurance — Notice of Delinquency Beta Not a Demand for Payment or Waiver of Forfeiture.</p> <p>A notice by a clerk of a beneficial association to a delinquent member, calling attention to bis delinquency and expressing the hope that he will give the matter his attention, dees not amount to demand of payment nor to an unconditional waiver of the forfeiture, (p. 201).</p> <p>2. Same — Remittance Not Accepted Does Not Reinstate Delinquent or Waive Forfeiture.</p> <p>If upon receipt of such a notice, the delinquent member, after forfeiture, remits the amount of such delinquency, and with his remittance gives notice of his bad condition of health, and the insurer promptly declines the offer, such remittance does not reinstate the delinquent nor bind the insurer to an unconditional waiver of the forfeiture, (p. 201).</p> <p>3. Same — Method Prescribed by Policy for Reinstatement Must be Followed.</p> <p>Where an insurance policy provides a particular mode of application for reinstatement subject to the approval of the board of directors, that method must be pursued, in the absence of a definite practice or of specific authority given an agent to waive the forfeiture, (p. 201).</p> <p>4. Same — Notice of Delinquency Held Not a Demand for. Payment or Waiver of Forfeiture.</p> <p>Where in such case the insurer has by the terms of the policy an election whether it will reinstate a delinquent member after forfeiture, it can not be regarded as having waived the forfeiture by giving notice to the delinquent of his delinquency, if ignorant of the bad condition of his health occurring after the forfeiture, (p. 203).</p> <p>(Williams, Pbesident, absent.)</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Suit by Mary J. Spriggs and others against James T. Mc-Oreery and others for partition and to set aside deeds as clouds on plaintiffs title. From a decree dismissing the bill as to defendants McCreery and Fuller, plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by Wade Miller against the City oí Bluefieid. Prom a decree dismissing his bill, plaintiff appeals.</p>

<p>1. Equity — Bill is Not Demurrable Where Any of Several Grounds of Belief is Sufficiently Stated.</p> <p>A general demurrer to a bill seeking relief on more than one ground, or in more than one form, is properly overruled, if any one of the grounds of relief stated is sufficient in law, (p. 224).</p> <p>2. Principal and Agent — Principal’s Bill for Accounting Held to State Cause of Action in JSguity.</p> <p>A bill for an accounting filed by a principal against an agent whose duty it is to keep and render accounts to the plaintiff, alleging failure to keep and render correct accounts of money coming into his hands, or becoming due from him, and wrongful conduct on his part rendering it difficult -or impossible for the plaintiff to ascertain the true state of the account, sets up a good cause of action cognizable in equity, (p. 225).</p> <p>3. Equity — Adequacy of Remedy at Law No Bar to Relief, Where Courts of Equity Have Concurrent Jurisdiction.</p> <p>As the cause of action alleged by such a bill is one as to which courts of law and courts of equity have concurrent jurisdiction, adequacy of the remedy at law is no bar to relief in equity, (p. 225).</p> <p>4. Mines and Minerals — Under Lease Covenant, Lessee of Coal Mines Held Lessor’s Agent, as Well as Debtor, Quoad Royalties.</p> <p>If the lessee in a coal mining lease has covenanted to keep accurate accounts of the coal mined and calculate and pay over .to the lessor the royalties thereon, he is the agent of the lessor as well as his debtor, quoad the royalties, (p. 225).</p> <p>(Williams, President, absent.)</p>

Bill in equity by Marion French and others against the Pocahontas Coal & Coke Company and others. From a decree dismissing the bill, plaintiffs appeal.

<p>1. Railroads — Omission of Signals Actionable Unless Traveler is Guilty of Contributory 'Negligence.</p> <p>It is the duty of those in charge of a train being operated over a railroad in this state, upon approaching a highway crossing, to give the signals required by law, and if a traveler crossing such railway at such crossing is injured by being struck by a moving train which has not given such crossing signals, the operator of such railway will be liable for the resulting injury, unless it appears that the injured party was guilty of contributory negligence in entering upon the crossing under the circumstances of the particular case, (p. 237).</p> <p>2. Same — Contributory Negligence Question of Fact.</p> <p>Whether a traveler upon a highway is guilty of contributory negligence in entering upon a crossing is a question for the jury, where the facts are in dispute, or where from the conceded facts two conclusions may be drawn, with equal plausibility, one of which would make such injured party guilty of contributory negligence, and the other indicate that he was in the exercise of due care. (p. 241).</p> <p>3. Same — Contributory Negligence Defined.</p> <p>In determining whether or not a traveler crossing a railroad at a highway crossing is guilty of contributory negligence, so as to bar a recovery by him for an injury received by being struck by a train at such crossing, the jury must consider all of the facts and circumstances shown in the case, including the speed of the train, the fact that such train did or did not give the usual crossing signal, the distance at which an approaching train could be observed by one going upon the crossing, the care exercised by such injured party before entering thereon, and if from all of these facts it appears that the injured party has taken such precautions as would have been taken by one of ordinary prudence under the circumstances, he will not be held guilty of contributory negligence. (P. 241).</p> <p>(Williams, President, absent.)</p>

<p>1. Buns and Notes — Holder of Check Must Exercise Reaspnable Diligence in Making Presentment.</p> <p>The person receiving a check drawn on funds in a bank .is hound to exercise reasonable diligence in making presentment thereof for payment, if he wishes t-o avoid, discharging an endorser .thereof, (p. 246). ;</p> <p>Same — Reasonable Diligence in Presentment of Chech is Question of Law.</p> <p>As to what constitutes reasonable diligence in the presentment of a check for payment to- the hank upon which it is drawn,- where the facts are conceded, is a question, of law for the court, (p. 247).</p> <p>3. Same — Time of Presentment of Checks Stated.</p> <p>If the person receiving such a check and the bank upon which it is drawn are in different places, such a check must be forwarded for presentment by mail, or some other ordinary mode of transmission, on the next day after the receipt thereof at the place at which the payee resides, or does business, if reasonably and conveniently practicable, and if not so, then upon the next day thereafter, and the same must be presented to the bank upon which it is drawn and payment demanded at the latest upon the day after its receipt at the place at which such bank -is located, (p. 246).</p> <p>i. -Same — Inexcusable Delay in Presenting Chech Will Discharge Indorser if Chech is not Paid.</p> <p>Inexcusable delay in presenting a check for payment will discharge an endorser from liability thereon if the check is not paid, whether he is in fact .injured or not. (p. 248).</p> <p>5. Same — Failure to Present Chech Received in Conditional Payment of Debts Makes Payment Absolute.</p> <p>When a check is received in conditional payment of a debt, the failure to present it for payment and give notice of dishonor within -a reasonable time after its receipt operates to make such conditional payment absolute, (p. 249). (Williams, President, absent.)</p>

<p>Error to Circuit Court, Monongalia County.</p> <p>Action by Lela Waters against Edward L. Eiley. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by A. R. C'arter against Elah .Carter. Decree for defendant, and plaintiff appeals.</p>

<p>1. Mortgages — Beneficiary May Move to Appoint New Trustee.</p> <p>A beneficiary named in a deed of trust has such apparent interest therein as entitles him to maintain a motion to appoint a new trustee upon any of the grounds named in section 5 of chapter 132 of the Code. (p. 259).</p> <p>2. Same — On motion to Change Trustee Court Cannot Determine Debt.</p> <p>Upon such motion the court has no jurisdiction to hear or determine any questions affecting the amount or validity of'the debt secured by the dee'd of trust, or whether the same has been paid or otherwise discharged. ■ (p. 259).</p> <p>Injunction — Equity Will Not Enjoin Use of Deed of Trust hy One Interested in Support of Motion to Substitute Trustee.</p> <p>Nor will a court of equity at the suit of the maker of such deed of trust entertain, a bill to enjoin the use thereof hy one so interested therein in support of such motion, (p. 260).</p> <p>(Williams, President, absent.)</p>

<p>Appeal from Circuit Court, Jackson County.</p> <p>Suit by M. J. McMillan and others against C. L. McIntosh and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by Frank L. Myers against J. C. «Cook and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Motion for peremptory writ of mandamus by the State, on the relation of Laurence Vernet and others, against 'Olay B. Wells and others, Ballot .Commissioners.</p>

<p>1. Dedication — Municipality Must Accept Streets and. Alleys on a Plat Proposed to he Dedicated to Acquire Title.</p> <p>In order to acquire title to the streets and alleys sliown upon a plat by wbicb it is proposed to dedicate them to the public, the municipality or other public authority must accept the same. (p. 281).</p> <p>2. Same — Acceptance of Proposed Dedication by Plat May be Express or Implied.</p> <p>This acceptance may be by some order or resolution of the proper municipal authorities, or it may be implied from their acts in connection with the streets so proposed to be dedicated, such as making' improvements thereon, taking charge thereof, and assuming control thereover, (p. 281).</p> <p>3. Same — Acceptance of Streets Proposed to be _ Dedicated May be of Whole or Part Thereof.</p> <p>Whether such acceptance be by direct order or resolution of the public authorities, or by implication, it may' be of the whole of the streets offered to the public, or of only part thereof, (p. 281).</p> <p>4. Same — Implied Acceptance to Show Olear Intent to Accept Offer; Municipality May Accept in Part Streets Shown by Plat.</p> <p>Where the owner of a tract of land lays the same off into lots, streets and alleys, and makes a plat thereof, and offers to dedicate the streets and alleys shown upon such plat to the public, the public authorities may accept such dedication in whole or in part. If an acceptance by implication is relied upon, the acts which it is contended work such implied acceptance must show a clear intent to treat and consider the streets and alleys thus offered as public streets and alleys. (p. 280).</p> <p>5. Same — WorTc on Streets Already Improved by Owner is Implied Acceptance only of those Streets Improved.</p> <p>If in such case the owner of'the property improves certain of the streets by paving the same, and by laying sidewalks thereon, while others of the streets remain unopened and unmarked upon the ground, and unused by the public, work done by the public authorities upon such improved streets will operate as an implied acceptance only of the streets upo'n which such work is done, an'd only ¡to the extent ■ that the same are being used by the public at the time. (p. 281)</p> <p>6. Same — Owner may Withdraw Proposed Dedication Wfiolly or Partly.</p> <p>One who lays out a tract of land into lots, streets and alleys, and offers to dedicate such streets and alleys to the public, may withdraw such offer at any time before the acceptance thereof by the proper public authorities, and where a part of such dedication has been accepted the offer may be withdrawn as to the part not so accepted, (p. 282).</p> <p>7. Same — Dedicator’s Cortweyance of Unaccepted Streets Constitutes a Withdrawal of His Offer.</p> <p>The conveyance by the land owner of such unaccepted streets or alleys to a third party for private purposes will constitute a withdrawal of the offer to dedicate the same to public use, if such conveyance was made before acceptance of the offer. (p. 282).</p> <p>(■Williams, President, and Poefenbarger, Judge, absent).</p>

<p>T-b Corporations — ¡Subscriber, Promptly Repudiating Subscription and Attempting to Cancel it for ¡Fraud, Rot Liable to Assessment After Insolvency.</p> <p>One who is induced by false and fraudulent representations to subscribe to tbe stock of a corporation, and promptly repudiates such subscription, and attempts to have it cancelled, upon the discovery of the fraud in its procurement, cannot be held liable, after the insolvency of such corporation, for an assessment against him for the purpose of raising a fund to pay its debts, (p. 288).</p> <p>2 Same — Rule Requiring Prompt Repudiation of a Subscription for Fraud Reid Not to Apply.</p> <p>The general rule that one, who is induced by false and fraudulent representations to subscribe to the stock of a corporation, will not be allowed to repudiate such subscription, unless he acts promptly upon a discovery of the fraud, is for the benefit of creditors who may have dealt with the corporation upon the faith of such subscription, and where the assets of the. corporation, including unquestioned subscriptions to its capital stock, are ample to discharge all of the debts of the corporation, the reason for the application of the rule no longer exists, (p. 288).</p> <p>3. Same — One Induced to Subscribe by Fraud Reid Not Required to Pay Assessments by Receiver.</p> <p>Where, in order to create a fund for the payment of debts of an insolvent corporation, it is necessary to make an assessment upon the unpaid subscriptions to the capital stock, hut not to the full extent thereof, and one of such subscribers has been induced to make his subscription by false and fraudulent representations, and attempts to defeat the assessment because thereof, the controversy between him and the receiver attempting to collect the subscription becomes in effect one between such subscriber and the other stockholders, and not between him and the creditors, and unless some peculiar equities are shown in favor of the other stockholders, such as that they made their subscriptions upon the faith of the subscription made by him, he will not be required to pay such assessment if grounds exist which would justify the cancellation of his subscription in a suit between him and the corporation, (p. 291).</p> <p>(Whajams, President, absent)</p>

<p>1. Malicious Prosecution — -Evidence of Knowledge of Innocence of Accused Competent.</p> <p>In an action for malicious prosecution it is competent for the plaintiff to show that no crime had been committed by him, and that the defendant knew it. (p. 295).</p> <p>2. Evidence — Evidence of Intention or Motive Competent.</p> <p>In an action for malicious prosecution the defendant may be allowed to testify as to his intention or motive in setting on foot the alleged malicious prosecution, (p. 296).</p> <p>3. Malicious Prosecution — Evidence of Conduct Held Admissible to Show Malice.</p> <p>In an action for malicious prosecution it is proper for the plaintiff to show, as tending to prove malice upon the part of the defendant, that after the prosecution was set on foot by him a statement was made in his presence by another party, and undenied by him, that he was advised before the warrant was issued that there was no basis for the prosecution, but that he persisted therein and demanded that a warrant be issued upon the complaint made by him. (p. 297).</p> <p>4. Same — Proper Charge on Punitive Damages.</p> <p>In an action for malicious prosecution it is proper to instruct the jury that in case they find that the defendant acted ■with malice toward tlie plaintiff, or with reckless and wanton disregard of his rights, they may allow punitive or exemplary damages in excess of what would compensate the plaintiff for the injury actually sustained, to punish the defendant, and to deter others from committing like offenses, provided the compensatory damages found hy the jury are not sufficient for such punitive or exemplary purpose; and in case they do find that 'the compensatory damages are insufficient for such purpose, then they may add only such additional amount as taken together with the compensatory damages will he sufficient therefor, (p. 297).</p> <p>5. Same — Probable Cause Question for Court.</p> <p>In an action for malicious prosecution, where the facts are conceded, or undisputed, it is for the court to say whether or not there was probable cause for the institution of the prosecution. (p. 298).</p> <p>6. Same — Malice Question for Court</p> <p>In an action for malicious prosecution, where the facts are in dispute, or where, if conceded, an inference could be drawn consistent with the defendant’s innocence of a malicious purpose, the question of whether or not he acted maliciously will be for the jury. Where, however, the facts are undisputed, and the sole motive actuating the defendant, as admitted by him, was an improper and wrongful one, there is made a prima facie case of malice, and if this is not rebutted the court should instruct the. jury that the plaintiff is entitled to recover, (p. 298).</p> <p>(Williams, President, absent.)</p>

<p>Appeal and Ebbok — Approved, Findings of Commissioner in Chancery Conclusive if Not Clearly Against Evidence.</p> <p>The findings of a commissioner in chancery based upon conflicting oral evidence, confirmed by the circuit court, will not be reversed by this court, unless it appears that such findings are against the clear preponderance of the evidence.</p> <p>(Williams, Pbesident, absent.)</p>

<p>Mandamus by the State, on the relation of R. Moore Dod-rell, against W. Burbridge Payne and others, Ballot Commissioners, etc.</p>

<p>Appeal from Circuit Court^ Mingo County.</p> <p>Suit by William Ellis and others against C. E. Hager and others. Decree for defendants, dismissing the bill on final hearing, and plaintiffs appeal.</p>

<p>1. Railroads — Pedestrian on Trach Commonly Used as Pathway Held a Mere Licensee.</p> <p>One having the ordinary power to discern and appreciate danger, who, in common with others and with the implied knowledge of the operator, uses part of a railroad track as a •pathway for his own convenience, elsewhere than at a public crossing, is at most a mere licensee, to whom the company owes no other or higher duty than it owes a trespasser, p. 322).</p> <p>2. Same — Injuries to Pedestrian Held Not Actionable Unless He Was Discovered.</p> <p>An adult, not an employee of the company, in the full possession of the faculties necessary to enable him to foresee and perceive the dangers attending his presence upon railroad property, injured while using a railroad track as a footpath for hfe own convenience, at a point other than a public crossing, cannot recover damages therefor from the company, unless it he shown that after he was discovered upon the track hy the employees of the company they did not use reasonable care to avoid injuring him. (p. 325).</p> <p>(Williams, President, absent).</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Suit by Samuel Spaulding and others against C. H. Spauld-ing and others. Decree for plaintiffs, and defendants C. H: Spaulding and others appeal.</p>

<p>Error to Circuit Court, Wyoming County. ■</p> <p>Action of unlawful entry and detainer by Ashby Adams against John L. Tilley. Judgment for plaintiff, and defendant brings error.</p>

Case certified from Circuit Court, Mingo County. Action by the Borderland Coal Company against the Norfolk & Western Railway Company. Objection to special plea to declaration, and motion to strike out such plea overruled, and the ruling certified.

<p>■ 1. Deeds — Deed Executed 6y Grantor With Intent to Pass His Estate Amounts to a Delivery.</p> <p>It is not necessary to the validity of a deed that actual manual delivery thereof be made hy the grantor to the grantee. Delivery is in many cases a matter of intention, and where it appears that the grantor executed the deed with the intent, purpose and desire that the same he effective as a conveyance of his estate, it will be held to have been delivered, (p. 348).</p> <p>2. Same — Grantor’s Rentention Raises Presumption of Non-Delivery; Deed Retained hy Grantor Ineffective.</p> <p>The fact that an unrecorded deed is found among the private papers of the grantor, at his death, more than two years after the execution thereof, raises the presumption that such deed was never delivered to the grantee, and was never intended to pass the grantor’s title, an’d when this presumption is strengthened by the conduct of the parties, consisting of the grantor retaining possession of the land until his death, conveying it away shortly before his death to another party, receiving all of the issues and profits arising from the land during the intervening time, selling the personal property conveyed by the deed with the full knowledge of the grantee, and appropriating to his own use the proceeds of( such sale; and of the grantee never assuming any charge of such property, charging and receiving compensation from the grantor for work done upon the land, the same being a farm, never making any claim before or at the time of the death of the grantor that he was the owner of the land under such dee'd, and never paying or offering to pay the consideration required to be paid hy him by the terms of such deed, the same will not be effective to pass title to the grantee named therein, (p. 348).</p> <p>(Williams, Pbesident, absent).</p>

<p>Error to Circuit Court, Randolph. County.</p> <p>Action by the City of Elkins against the Elkins Electric •Railway Company and others. Verdict and judgment for plaintiff, and defendants bring -error.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>B. L. Galford was convicted of murder in the second degree, and he brings error.</p>

<p>1. Public Service Commissions — May Sear Complaints as to Service or Want of Service of Public Service Corporations.</p> <p>The public service commission has jurisdiction by the law of its creation, and independently of chapter 71 Acts 1919, known as the Steptoe Law, to hear and determine complaints lodged with it respecting the service or want of service of a public service corporation subject to its jurisdiction, (p. 370).</p> <p>2. Injunction — Awarded, by Supreme Court of United States Held Sot to Prohibit Public Service Commission from Enforcing its Duties to the Public, Not Infringing Federal Constitution.</p> <p>An order of injunction awarded by the Supreme Court of the United States in the suit of another state against this state, commanding it and its officers, agents and servants and the several .persons in power under its authority that they desist and refrain from in any way interfering with the transportation of natural gas from and out of the state and from taking any action or proceeding against any person, company, or corporation engaged in the production or transportation of natural gas from and out of this state into another state under authority of said statute, should not be construed as intending to prohibit said commission from enforcing performance by a public service corporation of its duties to the public served in the state, not infringing some constitutional right protected by the federal constitution, (p. 372).</p> <p>3. Public Service Commissions — After Wrongful Dismissal of Case by Public Service Commission, the Supreme Coitrt of Appeals Will Set Aside its Order and Command it to Hear and Finally Determine the Case.</p> <p>When the public service commission dismisses a proceeding before it upon grounds not justified, this court will not, in advance of the final decision of the case on its merits, undertake finally to dispose thereof, but will set aside its order and command it to hear and finally determine the case according'to law. (p. 374).</p> <p>(Williams, President, absent).</p>

<p>1.' Municipal Cobpoeations — Ordinance Relating to Operation of Motor Vehicles in-City Streets Conflicting with State Law Void.</p> <p>Sections 3 and 4 of an ordinance of the city of Wheeling, passed April . 6, 1920, relating to the operation of motor vehicles upon its streets, .being in conflict with the provisions of chapter 43 of the Code, as re-enacted by chapter 66 Acts 1917, known as the good roads law, are void and unenforceable by criminal or other legal proceedings, (p. 376).</p> <p>2. Same — Ordinance Attempting to Cover Matters Comprehensively Dealt -uMth by State Law is Invalid.</p> <p>When the general law of the state has so dealt compre-sensively with the subject matter of a municipal ordinance, the general law is dominant and controlling and the ordinance is invalid and unenforceable, in the absence of specific authority conferred by the legislature, (p, 3S2).</p> <p>(Wuuams, Peesiiient, absent). •</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by M. E. Durkin Donohoe against Eronia H. Collett and others. Judgment for plaintiff, and defendant Nell Phares appeals.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by Minnie Cunningham and others against Cora A. Heltzel and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from' Circuit Court, Kanawha County.</p> <p>Hu its for injunction by the Eureka'Pipe Line Company and by the United Fuel Gas Company against Walter S. Hallanan, State Tax Commissioner, and others. Decrees for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Suit by Mary Lopinsky against Benjamin Hurvitz and others. From a decree dismissing the bill, plaintiff appeals.</p>

<p>1. Nuisance — Abatable at Suit of Private Individual Specially Damaged.</p> <p>Generally -public wrongs are redressed at tbe suit of appropriate public officials, and before equity will abate a public nuisance at tbe suit of a private individual it must appear, not only that plaintiff is specially damaged by it in a manner different from tbe general public, but also tbat bis injury is serious and permanent, and as sueb tends to depreciate tbe value of bis property, (p. 432.)</p> <p>2. Railroads — Belief Denied Private Individual Failing to Prove Serious Injury From- Obstruction of Street.</p> <p>A case where relief is denied because of failure to prove, serious and permanent injury, actual or prospective, (p. 482.)</p> <p>(Williams, President, absent).</p>

<p>Petition by Guy Kirby for a writ of habeas corpus to be directed against S. A. Daniel, Sheriff.</p>

<p>1. Officers — Contest Does Not Prevent Contestee’s Induction Into Office.</p> <p>The pendency of an election contest by one candidate against another for the same office does not adversely affect the right of the contestee to be inducted into the office, if, upon the face of the returns duly canvassed, the board of canvassers ascertains the result to be favorable to him, and so declares upon its record, and issues to him the required certificate, and he otherwise complies with all preliminary legal requirements. (p. 439.)</p> <p>2. Mandamus — Writ Lies to Enforce Right of Person Elected to Office.</p> <p>If a person who thus shows prima facie legal right to the office is denied induction into such office, he may enforce such right by mandamus, (p. 441.)</p> <p>3. Officers — One Failing to File Expense Account is Not Permanently Disqualified From Holding Office.</p> <p>Although sections 8-b (6) and 8-b (8), chapter 5, Code 1918, exact promptness in the preparation and delivery of the expense account of every candidate for public office, the statute, when read and considered in its entirety, manifests no express or implied determination to disqualify permanently one wlio is tardy in that respect from discharging the functions and receiving the emoluments of the office to which he has been elected, but only until he has filed the required statements, (p. 439.)</p>

Suit by the Peerless Carbon Black Company against E. N. Gillespie and others and Oscar Nelson, with cross-bill by defendants, E. N. Gillespie and others, for injunction, etc. Decree adjudicating plaintiff’s right to re-enter on certain oil and gas producing property for nonperformance of conditions subsequent, and relieving defendants, E. N. Gillespie and others, from the forfeiture and restoring them to possession upon certain conditions and defendants appeal and plaintiff…

<p>X. G-uakdian and "Ward — Remedy on Contract Not Necessary in Preservation of Ward’s Estate Not in Equity.</p> <p>A court of equity is not the proper forum in which to assert an open account against a guardian and his wards where it appears that the claim arose out of a contract with the guardian for labor not necessary for the preservation of the wards’ estate, and where it also appears that the guardian has made proper settlement of hi's accounts, showing a balance due him from hi's wards, and nothing has come into his hands since that settlement; and that a part of the labor was performed for the wards after the guardianship had terminated.</p>

Separate proceedings for writs of mandamus by the State, on relation of J. W. Harmon and of J. F. Napier, against tbe County Court of Wayne County sitting as a board of canvassers.

<p>Certified Questions from Circuit Court, Webster County.</p> <p>Action by the First National Bank of Webster Springs and others against Rose MeGraw De B'erriz and others. Decree for plaintiffs and named defendant appeals. On certified questions.</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Suit by the Pardee & Curtin Lumber Company against L. P. B. Rose and others to restrain extension of tax levies. Injunction dissolved, and plaintiff appeals.</p>

Action by Alfred PI. Donnally against the Fairmont Brewing Company in trespass on the case for malicious prosecution or abuse of process. Judgment for defendant on a directed ver-, diet, and plaintiff brings error.

<p>Error to Circuit Court, Hancock County.</p> <p>Action by E. M. Tingler against Frank Lahti. Judgment against defendant before a justice of the peace was affirmed on appeal to the circuit court, and defendant brings error.</p>

<p>Separate suits by the County Court of Brooke County against the United States Fidelity & Guaranty Company and against the Mack Manufacturing Company. Judgment for plaintiff, and cases certified to Supreme Court.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by P'atrick M. I-Ioge against Antoinette Blair and others. Decree for plaintiff, and defendants appeal.</p>

<p>t. Appeal and Error — New Trial — Verdict Based on Mistake or Disregard o-f Instructions will de Set Aside, and New Trial Ordered.</p> <p>When the evidence and admitted facts before a jury show error in their verdict which can safely be attributed to a mistake in their calculation or a total disregard of the evidence, it should on motion be set aside and a new trial awarded, and if the trial court overrules such motion, this court will on writ of error thereto by the injured party reverse the judgment and award him a new trial.</p>

<p>1. Constitutional Law — Interpreting Constitutional Provisions, Previous Provisions ami Legislation May he Considered in Pari Materia.</p> <p>In the interpretation of a constitutional provision, it' is permissible to resort to- and consider previous legislation and constitutional provisions respecting the subject matter and disclosing the character and development of the measures adopted for regulation thereof, under the rule of construction, authorizing' resort to acts in- pari materia for aid in interpretation. (p. 530).</p> <p>2. Same — In Interpreting Constitutional Provisions Rule of Practical Construction Applies.</p> <p>Upon an inquiry as to the true meaning of a constitutional provision, the rule of practical construction also applies, and renders it proper to take into consideration contemporaneous legislation under the provision in question and long acquiescence therein, (p. 532).</p> <p>3. Taxation — Constitutional Provisions Authorizing Legislative Exemption of Property Strictly Construed.</p> <p>A constitutional provision authorizing legislative exemption of property from taxation is strictly construed and nothing can be exempted that does not fall within its terms; but rational construction within the terms used is required as well as permitted, (p. 529).</p> <p>4. Same — Parsonage May he Exempted by Legislature Under Constitution as “Property Used for Religious Purposes.”</p> <p>Under sec. 1 of Art. X of the Constitution of this state, authorizing legislative exemption from taxation, of “property used for * * • * religious * * * purposes,” the Legislature has power so to exempt parsonages, they being property used for religious purposes and falling clearly within the terms of the exemption clauise of said section, (p. 533).</p> <p>5. Same — Renting Parsonage to Persons Not Ministers Held Not to Destroy Exemption from Taxation.</p> <p>A statute exempting parsonages by name, includes property acquired and for a time used as a parsonage, but which, on discontinuance of such use, is rented to persons not ministers of the church to which it belongs, pending disposition thereof, and the rentals from which are used exclusively for purposes of such church, (p. 533).</p>

<p>1. Divorce — Misconduct Insufficient to Justify Desertion May Prevent Decree to Deserted Party.</p> <p>Misconduct of one of the parties to the marital relation, not sufficient to justify the other in leaving the home, may nevertheless be sufficient to prevent the award of a divorce to the party guilty thereof, even though the other is guilty of desertion in the legal sense of the term. (p. 538).'</p> <p>2. Same — Durden of Proving Inequitable Conduct Barring Relief ' for Desertion Rests Upon Deserting Party.</p> <p>In such case, the burden of proof of inequitable conduct barring relief rests upon the deserting party, (p. 538).</p> <p>3. Same — Plaintiff Seeking Decree for Desertion Must Overcome Defendant’s Prima Facie Case of Separation by Consent.</p> <p>If, in a suit for divorce on the ground of desertion, the absent party'makes out in evidence a prima facie case of separation by consent, the plaintiff, to obtain the relief sought, must clearly repel and overcome it by proof, (p. 539).</p>

Cases Certified from Circuit Court, Doddridge County. ' Separate suits by the Pittsburgh & West Virginia Gas Company against A. B. Nicholson and others and against G. W. Swisher and others. Demurrers to the bills were overruled, and cases certified to the Supreme Court.

<p>1. Eminent Domain — Damages Arising from Construction of Railroad for which Owner of Urban Real Estate may Sue Enumerated.</p> <p>The owner of urban real estate may maintain an action against a railroad company to recover damages to such real estate from the construction of its railroad tracks in the street in front of the same, destroying his means of access to his property, and from sparks and cinders cast upon his property from locomotives used in the operation of the railroad, and for injury to the house upon the property from shaking and jarring the same, as well as for any other direct injury resulting from the operation of such railroad, (p. 550).</p> <p>2. Rules of Pleading and Practice Exist ' for Convenient Administration of Justice.</p> <p>Rules of pleading and practice exist for- the convenient administration of justice, and not to effectuate its denial to a party sustaining an injury, (p. 557).</p> <p>3. Eminent Domain — All Owners, Though Their Respective Estates May he Uncertain, may Unite to Recover Entire Damages.</p> <p>Where the estates owned hy several different parties in real estate are so uncertain and indefinite in their extent and duration, depending upon contingencies which cannot he foreseen or determined with any reasonable degree of exactness, that the owners of such different interests cannot establish with any degree of definiteness the extent of an injury to the particular estate to which they are or may be entitled, and where some of such owners are not even yet determined, but depend- upon future contingencies, all of the parties in being having an interest in such property may unite in a suit and recover therein entire damages for a permanent injury inflicted thereon, (p. 554).</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Frank Blnosky was convicted of having in his possession and operating a moonshine still, and he appeals.</p>

<p>1. Municipal Corporations — Resignation of Majority of (jjouncil to Prevent Filling of 'Vacancies Held Not to Absolve Them from Official Duties.</p> <p>Resignation of a majority of the common council of a town, chartered under chap. 47, Code, thus preventing appointments to fill the vacancies because of the inability of the minority to act, will not be effective, and will not absolve them from the discharge of official duties, (p. 567).</p> <p>2. Mandamus — Writ Will Lie to Compel Members of Common Council Who Have Resigned to Act as Board of Convassers.</p> <p>Mandamus will lie.to compel the members of the common council of such municipality, including those members who have so attempted to resign, to convene as a board of canvassers and to canvass the .vote returned in a regular municipal election for town officers, declare the result and cause proper certificates to be issued to the persons elected, (p. 567).</p> <p>3. Same — Municipal Corporations — ■Officers Attempting to Resign May he Compelled to Perform Duties Until Successors Ap. pointed.</p> <p>Urgent public duties can not be avoided by a municipal officer by resigning from his office in such a way and manner as to prevent the selection and qualification of his successor and prompt performance of such duties; and he will be compelled by judicial mandate to perform them until his successor is legally'elected or appointed and qualified, (p. B67).</p>

Suit by the Croft Land Company against the Boyal Block Coal Company and others. From decree for plaintiff, the named defendant appeals.

<p>Appeal from Circuit Court, Summers County.</p> <p>Suit by J. E. Maddy against B. F. Maddy and others in partition. From a decree dismissing the bill, plaintiff appeals.</p>

Action by Stefan Armese against the Baltimore & Ohio Railroad Company before a justice of the peace. Judgment for plaintiff on appeal to the circuit court, and defendant brings error.

• Appeal from Circuit Court, Ritchie County. Suit by Grover Collins against Dolly Thomas and others for specific performance. Decree for defendants, and plaintiff appeals.

Gates against Josie Gates for divorce. Decree for plaintiff, and subsequently defendant petitioned for a modification as to the custody of children. From a decree for petitioner, plaintiff appeals.

<p>1. Guaranty — Accommodation Indorser Oannot Dispose of Property Mortgaged as Indemnity to the Loss of His Grantors.</p> <p>An accommodation payee and endorser of a note, indemnified against loss resulting from his endorsement, by a deed of trust on property of the principal debtor, which also secures payment of the note, and further indemnified against such loss -by a guaranty agreement between him and other persons, which contains'a clause obligating them to repay to him any sum he should be compelled to pay by reason of his endorsement, cannot actively participate in, or cause, such a disposition of the property on which the debt is secured as will inflict direct and inevitable loss upon the -guarantors, and still hold them liable to him upon their contract of guaranty, (p. 613).</p> <p>2. Same — Indemnified Indorser Cannot Purchase and Rely on Property Securing Him, Defeating Right of His Guarantor to Purchase at Better Price.</p> <p>If, in such case, the indemnified endorser, being liable with other persons for other debts of the maker of the note, or being his creditor, forms a combination with other persons for the purpose of purchasing such property at a sale thereof to be made by the trustee, at a price insufficient to pay the debt secured upon it,- with intent to endeavor to realize enough out of the property to protect himself and associates similarly situated, in respect of such other debts as well as the secured debt, and actively participates in causing the sale to be made, and, at such sale, purchases the property for himself and his associates, at such price, with knowledge of the desire, readiness and ability of one of the guarantors to purchase it at a price sufficient to pay the secured debt and without actual notice to such guarantor of the time of the sale, and then pays the part of the debt remaining after application of the proceeds of the sale thereon, he cannot recover any part of the money so paid, from such guarantor, (p. 613).</p> <p>3. Same — Circumstances of Purchase of Mortgaged Property Indemnifying Indorser Admissible as to His Intent to Cause Loss to His Guarantor.</p> <p>On an issue, in such case, as to whether the purchasers, in raising a fund sufficient to pay all of the debts of the debtor, prior to the sale, or obligating themselves to do so, intended to take the property in consideration of payment of all of the debts, so as to relieve the guarantors, all of the facts and circumstances attending the transaction, both before and after the sale, are admissable in evidence, (p. 617).</p> <p>4. Same — Instructions Relating to Purchase of Property by Indemnified Indorser Held Properly Refused in Action to Recover from Guarantor.</p> <p>Instructions requested by the defendant, in the trial of such a case, which, if given,, would have authorized a verdict for him, on the finding of a purchase of the property by the endorser for himself and his associates, at a price less than the secured debt, intention on their part to pay all of the debts of the principal from a fund raised by them and the making of an offer to him by another person to take the property and pay the secured debt, but not requiring any finding as to the time of such offer, are properly refused, (p. 615).</p> <p>5. Same — Instruction in Action Against Guarantor of Indorsement for Defendant, as Offer to Purchase Property Mortgaged to Secure Indorser, Held Hrroneously Refused.</p> <p>It is reversible error, however, to refuse an instruction requested by the defendant, in such case, which, if given, would have required a verdict for him, on a finding that he had, before the- sale, made an offer to the plaintiff, to purchase the property at a price sufficient to pay the debt secured upoh it, and rejection thereof by the latter, (p. 615).</p> <p>6. Same — Declaration on Contract of Guaranty of Indorsement Heed Hot Allege Insolvency of Principal Debtor.</p> <p>A count in a declaration upon such a contract of guaranty as the one above described, need not allege insolvency of the principal debtor, (p. 617).</p>

<p>1. Quieting Title — Deed May be Removed, as Cloud Although Entirely Ineffectual.</p> <p>Equity lias jurisdiction, at the suit of the owner, to remove as a cloud upon his title to land a deed purporting to convey an'interest therein, even though the same may be entirely ineffectual for that purpose, (p. 620).</p> <p>2. Same — Owner not Ousted of Possession by .Use of Road Over Tract Under Claimed Easement.</p> <p>The owner of a tract of land in the actual possession thereof, over which the owner of an adjoining tract claims to have and is using a road, is not so far ousted of possession of that part so used as a road by such use as to prevent him from maintaining a suit in equity to remove • as a cloud upon his title a deed purporting to convey the easement claimed by such adjoining owner, (p. 621).</p> <p>3. Easements — Acquisition of Servient Tenement by Owner of Dominant Tenement Extinguishes Easement.</p> <p>The acquisition of a tract of land, over which there exists an easement appurtenant to an adjoining tract, by the owner of such adjoining tract, extinguishes such easement, (p. 622).</p> <p>4. Same — Proof Necessary to Establish Right of Adjoining Land- , owner to Use of Road ,6y Prescription Stated.</p> <p>To establish in an adjoining landowner the right to use a road over the lands of another by prescription, it must appear that the road so claimed has been used continuously under a claim of adverse right for ten years, and the evidence to establish this user must be clear and unequivocal. If there is a substantial doubt as to such user during any substantial part of the time necessary to create the right by prescription, it will be denied, (p. 624).</p>

<p>1. Equity — Equity will not Entertain Suit to Recover Damages for Fraud Amounting to Tort Remediable by Law.</p> <p>Equity will not entertain a suit to recover damages for a fraud which amounts to a tort remediable by an action at law for fraud and deceit, (p. 629).</p> <p>2. Same — Equity will not Entertain Suit for Fraud- in Obtaining Stoclc Subscription.</p> <p>Equity will not entertain a suit by a subscriber to the stock of a corporation, against an agent of such corporation, to recover from him damages sustained by such subscriber on account of false and fraudulent representations made by such agent in procuring the subscription, (p. 631).</p>

<p>1. Conspiracy — ■Association May Not Accomplish Vnlmoful Purpose hy Lawful Means.</p> <p>An association of persons will not be permitted to accomplish a lawful purpose by the use of unlawful acts; and conversely, will not be permitted to accomplish an unlawful purpose even by means that would otherwise be unlawful, p. 639).</p> <p>2. Injunction — Act of Inducing Breach of Contracts May he Enjoined.</p> <p>Where a person or combination of persons seeks to destroy another’s trade or business and by their actions influence or intimidate others with whom he has valuable contracts, causing said others to break such contracts and discharge his employees then actually performing the same, and the loss is actual, continuing and irreparable, injunction will lie to compel such person or combination of persons to desist from such acts p. 639).</p> <p>3. Same — Persons May he Enjoined from Carrying Banners Causing Owner to Cancel Contract with Plaintiff for Painting.</p> <p>Where a contractor has entered into a contract to paint a store building with the owner who then conducts a retail merchandise business therein, and is actually in the performance of his contract, it is unlawful for others to carry banners in front of the store with the words thereon; “This store is unfriendly to union labor,” or “This store is unfair to union painters,” or like legends, the said persons carrying said banners, or causing the same to be carried, having no industrial dispute with the store owner, thereby causing the said store owner, in fear of loss or violence, to cancel said contract and discharge the contractor, to his irreparable loss; and such “bannering” will be enjoined, (p. 639).</p> <p>4. Same — Writ Lies to Prevent Conspiracy to Induce Others to Break Valid Contract.</p> <p>Persons who conspire to induce others to break a valid contract between other persons are liable to action therefor, and if the loss occasioned thereby is continuing and irreparable, injunction will lie to prevent it. (p. 639).</p>

<p>Taxation — Tax Deed Held Not "Void for Misnomer of Owner.</p> <p>A tax sale and deed thereon based are not rendered void and subject to annulment because the owner’s name appears in the delinquent list, and in the sheriff’s published sales list of property to be sold by him for non-payment of taxes, as Norena Lambert, instead of Norma E. Lambert, the correct name; such misnomer being an irregularity cured by sections 6 and 25, chapter 31, Code.</p> <p>(Miulee, Judse, dissenting.)</p>

<p>1. New Teial — Characteristics of Newly Discovered Evidence Warranting New Trial Enumerated.</p> <p>To justify granting a new trial for after discovered evidence, the party relying thereon must have been diligent before .the verdict, the evidence must be material and not merely cumulative, and such as on a new trial ought to produce the opposite result, and is not proposed simply to discredit or impeach a witness on the opposite side. (p. 651).</p> <p>2. Witnesses — Derbial of Witness That He Had Made Inconsistent Statements May Be Contradicted.</p> <p>When a witness has testified to a material fact in issue, and on cross-examination is asked whether he had not on a former occasion and at the time of the occurrence to which his' evidence relates, made a contrary statement to a particular person present, and he denies it, the evidence of such person is competent in rebuttal for the purpose of contradicting the witness and destroying the value of his testimony, (p. 652).</p> <p>3. Evidence — Evidence of Actions or Condition of a Person on Other Occasions Admissible.</p> <p>Where the actions or condition of a person on other occasions are so recently connected in time and circumstance as to likely characterize his actions or condition on the particular occasion involved, evidence thereof may he properly admitted as tending to show what his conduct and condition then were. (p. 254).</p> <p>4. ^Damages — Recovery for Personal Injuries Not LUmted by Death Statute; Recovery for Personal Injuries Generally for Jury.</p> <p>In actions for damages for personal injuries sustained, the statute imposes no limitation on the amount recoverable. Generally the amount is for the jury to determine, and the only limitation which the law imposes is that such damages he fairly compensatory, and not such as to show partiality, prejudice or misconduct on the part of the jury. (p. 655).</p> <p>5. Same — $12,000 Held Not Excessive for Injuries to Married Woman in Automobile Accident.</p> <p>The verdict of twelve thousand dollars in this case, in favor of plaintiff, a married woman forty years of age, who in an automobile accident was badly cut and scarred about .the face and bead, ber ability to masticate ber food permanently impaired, and ber bead and neck permanently 'drawn over, and was otherwise permanently injured, is not so excessive as to justify the granting of a new trial, (p. 655).</p>

<p>1. Marriage — Between Persons Under Age of Consent Voidable, and Void Only From, Time So Declared by Decree.</p> <p>Section 1 of chapter 64 of the Code renders marriages between persons under the ages of consent not absolutely void, but only voidable, and void only from the time they are so declared by decree of divorce or nullity, (p. 657).</p> <p>2. Same — Law of Place of Marriage Held tó Q-ovérn As to Marriage of Those Under Age.</p> <p>If one under, the age of consent according to section 2 of chapter 64 of the Code goes into another state and marries one residing there, the law of the place of the marriage would govern, not the law of this state, and in such case section 3 of said chapter would have no application justifying annulment of the marriage on grounds therein provided, (p. 657).</p> <p>3. Same — Facts to Annul Marriage Between Persons Under Age Must Be Alleged and Proven.</p> <p>To justify a 'decree annulling a marriage because contracted between persons under tbe ages of consent, the facts giving jurisdiction to grant such relief must not only be alleged but fudly proven, (p. 658).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Otto Hoon against I. S. Hyman and others. Judgment for plaintiff, and defendants bring error.</p>

■Suit by Harry C. Millar against Cora L. Whittington and others. From an order dismissing the cause and from an order refusing to reinstate, plaintiff appeals.

Certified from Circuit Court, Harrison County. Petition by the Wilsoinburg Methodist (Episcopal Church against Peter W. Ash for the confirmation of the action of the district conference in removing respondent as trustee. A demurrer being overruled, the cause was, on defendant’s motion, certified to the Supreme Court of Appeals.

<p>Appeal from Circuit Court, Randolph County.</p> <p>Action by Thomas B. Sticldey against W. R. Thorn and others. Decree for plaintiff, and defendant named appeals.’</p>

Action by William Darius Hogan and others against Wirt C. Ward and the West Virginia Pulp & Paper Company and others. Judgment for plaintiffs, and the Paper Company and others appeal.

<p>1 . Equity — Judgment—Caption Does Not Determine Nature of Bill; Bill to Annul Decree for Fraud Considered Original Bill.</p> <p>A bill to annul a decree for fraud" in its procurement, filed after the adjournment of the term at which it was entered, will be construed as an original bill, although in its caption it describes itself as a bill in the nature of a bill of review, (p. 694).</p> <p>2. Judgment — Essentials of Bill to Set Aside Decree for Fraud Stated.</p> <p>A bill to set aside a decree for fraud must state the decree, and the proceedings which led to it, with the circumstances of fraud on which it is impeached, (p. 694).</p> <p>3. Appeal and Error — Costs—Equity—Decree1 Sustaining Demurrer Should Grant Leave to Amend, and on Reversal Leave Will he Granted; Costs Denied Appellant for Failure to Raise Question in Lower Court.</p> <p>A decree sustaining a demurrer to a bill deemed insufficient generally should grant leave to amend before dismissing it, and if upon appeal the bill appears to be amendable, the decree will be reversed, and the cause remanded, with leave to amend, but without costs to appellant, he not having asked permission to cure the defect, (p. 694).</p>

<p>1. Mines and Minerals — To Construe Reservation of Minerals Situation of Parties and, Their Interpretation Must be Con~ sidered.</p> <p>In order to determine tire true meaning, purpose and effect of a reservation in a deed, purporting to except or reserve the minerals underlying the tract conveyed, hut rendered uncertain and ambiguous by the addition of a clause, “as reserved by the lan'd company,” it is necessary to construe the reservation in the light of the situation of the parties at the^ time the deed was executed, and1 in accordance with the interpretation and construction which they have placed upon it. (p. 702).</p> <p>2. Same — In Suit to Cancel Deed as Cloud on Title to Minerals, Held That Reservation of Minerals Intended to Protect Grantor Against Unknown Prior Grantor Must Fail With False Premise on Which it Was Evidently Based.</p> <p>Where, in such a case, the record is replete with the testimony of many witnesses to the effect that the purpose of the grantor in excepting the minerals, as disclosed by numerous statements made by him to them, was not to retain the minerals for his own use, but merely to reserve or except them on behalf of an unknown prior grantor, a lan’d company, that might, have acquired title to them or excepted or conveyed them and thus deprived him of title thereto, creating danger of liability on his deed unless he excepted them from the conveyance, and that it was his intention to vest in his grantee title to the minerals and surface if no prior grantor had reserved or conveyed them, and all his subsequent acts with regard to the tract conveyed conform to and support this construction, and there is nothing in the record to show that any land company, as predecessor in title, ever made such reservation or, indeed, ever existed, the attempt to reserve the minerals must fail with the false premise upon which it was based, especially when such holding- will conform to the expressed intention of the grantor and to representations made by him to various purchasers, (p. 706).</p> <p>3. Same — Fee Simple Title Held to Vest Regardless of a Reservation of Minerals.</p> <p>Where a deed for land designates the estate the grantee takes, as to himself and heirs forever, “reserving, however, from the operation of this deed all minerals, mineral interests, oils, natural gas, &c., with all right of way rights and privileges, as reserved by the land company,” and, as the parties thereto and interested therein agree, there never was at any time such a company capable of holding or that held title to such minerals or an interest therein, by deed or otherwise, the deed first mentioned, when properly construed, vests a fee simple title to the land and minerals regardless of the reservation therein contained, when such was the expressed •intention of the -grantor as to its disposition in case there had been no prior exception or conveyance of the minerals to cause him embarrassment and possible liability on his deed, and purchasers believing and relying upon such representations purchase the minerals for a valuable consideration, (p. 707).</p> <p>•4. Estoppel — One .Disclaiming Title on Inquiry of Purchaser May Not Assert Title Against Purchaser.</p> <p>If a person claiming an interest in land, based upon an ambiguous and indefinite clause in a deed, denies his title to or interest in it', in response to the inquiry of a prospective purchaser of such title or interest, and thereby knowingly misleads him into • dealing with the estate as if he were not interested, such person generally will be postponed to the party misled and compelled to make his representation specifically good. (p. 707).</p> <p>-5. Same — Rule That Claimant of Interest Will he Postponed Through Misleading Prospective Purchaser Must he Carefully Applied.</p> <p>'Such rule, however, being opposed to the letter and spirit of the statute of frauds, should be carefully and sparingly applied, and only upon the disclosure of clear and satisfactory grounds of justice and equity, such as fraud or other similar misconduct, (p. 708).</p> <p>6. Same — Frauds, Statute of — Oral Disclaimer Not Sufficient to' Divest or Pass Title; Claimant’s Statements as to Understanding of Uncertain Clause in Deed May be Relied Upon by Good-Faith Purchaser.</p> <p>Mere oral disclaimer, without more, generally is not sufficient to divest or pass title. But when the right disclaimed hy a grantor is based upon an ambiguous and uncertain clause in a deed, statements by him as to his Intention and understanding with regard to its meaning and purpose are entitled to peculiar weight and respect by a prospective purchaser, and constitute such constructive, if not actual, fraud as a court of equity will not sanction or tolerate as against such purchaser who in good faith acts upon the representations, believing them to be true. (p. 708).</p> <p>7. . Abatement and Revivad — Possessor Under Superior Title• May Cancel Cloud Despite Pendency of Ejectment Action.</p> <p>One in actual possession of land under superior title may, in equity, maintain a suit to cancel a deed as an alleged cloud upon his title, despite the pendency of an action of ejectment instituted by the adversary party, (p. 708).</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by John Alexander Gibson against French Stalnaker for an injunction. From a decree dissolving an injunction, plaintiff appeals.</p>

Action by Herbert Mangus against the Proctor-Eagle Coal Company to recover for personal injuries. Verdict for plaintiff, and from an order setting the verdict aside, he brings error.

Habeas corpus by Earl Moore against Delsie Hughes, to obtain the custody of a female child. Judgment for plaintiff, and defendant brings error.

<p>1. Partition — Questions of Title Dependent Upon Location of Boundary Lines Under Different Titles Cannot hé Beard in Suit 'for Partition.</p> <p>■Questions of title to land dependent upon issues of fact proper for jury determination and arising out of uncertainty as to the location of boundary lines between tracts of land held under different and hostile titles, one of them by three persons and the adjoining .tracts by two of them, cannot he heard and determined by a court of equity in a suit for par-titution of the tract owned by all of them as cotenants, (p. 732).</p> <p>2. Same — Court Held Not to Have Jurisdiction to Determine Ownership "Where Boundaries in Dispute.</p> <p>Even though, in such case, the title of one of the coten-ants in the subject of partition is merely equitable and he is á cotenant with another one of the three in the adjoining lands, there is no jurisdiction in such suit to determine the ownership of the lands in dispute by reason of the conflicting claims as to the location of the boundary lines, (p. 732).</p> <p>3. Same — That Hostile Titles Co Bach to• Common Source Held Not to Confer Jurisdiction.</p> <p>In such case, it is immaterial that the titles to all of the tracts of land so situated go back to a common source. When land once held as a single tract under a single title has been divided by alienation into separate tracts and conveyed to different people, the several titles so created are hostile to one another, (p. 732).</p> <p>4. Tenawov in Common — Agreement as to Boundary for Purpose of "Voluntary Partition Held Not to Inure to Benefit of Co-tenants in Another Tract.</p> <p>If a cotenant in one tract of land agree with his cotenants in another and adjoining tract, the owners of the two tracts being different, upon the location of the boundary line between the two tracts, for the purposes of a voluntary partition of the latter tract, with intent and purpose to retain his claim of title to the land lying between such location and what he believes to be the true location, his action in so doing does not inure to the benefit of his cotenants in the other or first mentioned tract, (p. 732).</p> <p>5. Partition' — Equity Has No Jurisdiction of Demand "by One Cotenant for An Accounting Against Another for Land and Timber Sold "Within Disputed Territory.</p> <p>In a suit for partition of a tract of land, a court of equity has no jurisdiction of a demand by one cotenant, for an accounting for land and timber sold by another, within territory in dispute by reason of conflicting claims as to locations of boundary lines, based upon strange and hostile titles, (p. 732).</p> <p>'•6. Appeal and Error — Appellate Court Will Reverse Decree in Partition Ex Mero Motu, Though No Objection Made to Lack of Jurisdiction Below.</p> <p>If, in a suit in equity for partition of land, in which the pleadings and proofs introduce issues of title proper for jury determination, arising out of claims made under strange and hostile titles, no objection is made by any of the parties, on ■the ground of lack of jurisdiction, and the trial court by its decree determines such questions, the appellate court, on an appeal from the decree, will reverse it, ex mero motu, and remand the cause, (p. 736).</p>

<p>1. Abeest^ — Officer Not Justified in Shooting Suspected Misde-demeanant on Refusal to Stop When Ordered.</p> <p>An officer seeking to arrest á misdemeanant is not justified in shooting or wounding a traveler on the highway whom he has reason to believe is the misdemeanant, and whom he has ordered to halt for the purpose of ascertaining if he is the person for whom he is seeking, where the traveler simply refuses to obey the command, and pursues his journey hurriedly and in such manner as would lead the officer to believe he is the misdemeanant, indicating an escape, (p. 743).</p> <p>2. Ceimotal Law — Error in Ruling on Evidence Not Ground for Reversal Where Verdict Would Not Have Been Changed.</p> <p>Error in the admission or rejection of evidence will not he sufficient ground for reversal when it appears upon the whole case, including the admissions of the defendant, that the verdict would not have been changed, and ought to -be affirmed. (P. 746).</p> <p>3. Same — Statute Authorising Special Verdicts Inapplicable to Jury Trial in Criminal Cases.</p> <p>Sec. 5, chap. 131 of the Code, authorizing the circuit court to submit interrogatories to the jury upon the trial of any issue for the purpose of having it render separate verdicts upon any one or more of the issues, does not apply to jury trials in criminal cases, (p. 748).</p>

<p>Certified from Circuit Court, Kandolph County.</p> <p>Suit by W. H. Sleeth and others against the City of Elkins for an injunction. Temporary injunction awarded, demurrer -and motion to dissolve overruled, and questions certified.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by W. L. Warden against Walker D. Hines, Director General of Bailroads. Judgment for plaintiff, and defendant brings error.</p>

Action by Braude & McDonnell, Incorporated, against tbe Isadore Cohen Company. Judgment for defendant after plaintiffs demurrer to the evidence was overruled, and plaintiff brings error.

<p>Etrror to Circuit Court, McDowell County.</p> <p>Action by George D. Thomas against B-. M. Lupis. Judgment for plaintiff, and defendant brings error.</p>

<p>Frauds, Statute of — Letters by Defendant in Suit for Specific Performance Held Sufficient Compliance "With Statute.</p> <p>In a suit for specific performance in wMeli the statute of frauds was pleaded an'd relied on, the following letter of the defendant, viewed in connection with the prior and subsequent letters of plaintiff and the circumstances and condition of the parties, was sufficient -to constitute a memorandum in writing hy the defendant to satisfy the statute of frauds:</p> <p>“Davis, W. Va., April 10, 1919.</p> <p>“Mr. Wheeler Day, Dear Sir: — Tour letter of April 7, ' 1919, received and contents noted. Make the deed for the lot to me and I will take the house and also the vacant lot, so you can make both of the deeds to me. I will collect the rent for the house when your month is up for which he paid you.</p> <p>Resp. yours, J. F. KRAMER.”</p> <p>“P. S.: If you have not had the release of the deed of trust put on record, kindly bring it with you so that it can be recorded in order to make the title clear on the house and % lot.”</p>

<p>Appeal from Circuit Court, Upshur County.</p> <p>Suit by the West Virginia Pulp & Paper Company and another against John T. Cooper. Decree for defendant, and plaintiffs appeal.</p>