Volume 88 — West Virginia Reports

<p>Appeal from Circuit Court, Monroe County.</p> <p>Suit by Nelson White against L. H. Moss and others. Decree of dismissal, and plaintiff appeals.</p>

Suit by George S. Rees and others against the Emmons Coal' Mining Company of West Virginia for an injunction and an accounting. Decree for plaintiffs, and defendant appeals.

<p>Error to Circuit Court, Mercer County.</p> <p>Action by E. Kahn against the American -Railway Express Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Appeal and Error — Verdict on Conflicting Evidence Not Set Aside Unless Indicating Passion or Prejudice.</p> <p>The verdict of a jury, based upon conflicting evidence, will not be set aside, unless the evidence so strongly preponderates against the verdict as to indicate that the jury was moved by passion, prejudice, or some other improper influence, (p. 30).</p> <p>2. Same — Verdict Presumed Based on Evidence; Verdict for Damages Will Not he Disturbed if Within Estimates in Testimony.</p> <p>There is a presumption that the verdict of a jury is base'd upon a fair consideration of all matters presented to it, and if in an action for damages for breach of a contract the evidence does not certainly fix the amount of such damages, but depends upon varying amounts fixed by different witnesses, the verdict will not, be disturbed if the amount found is within the estimates given in the testimony, (p. 37).</p> <p>3. Same1 — Jury Will Not he Considered to Have Included Items Not Supported by Evidence.</p> <p>In an action for damages for breach of contract it will not be held that the jury included an item not supported by the evidence and* rejected in toto another finding support in the evidence, upon the sole ground that to include such improper item with others found by the jury will make the exact amount of the verdict, while to exclude such. item and include the whole of the item finding support in the evidence would make an amount in excess of the verdict, (p. 40).</p> <p>4. Sales — Measure of Damages for Breach of Contract to Deliver Personal Property at Definite Time Stated.</p> <p>Where, in an action for breach of a contract, it appears that the plaintiff was entitled to receive certain personal property at a definite time, his measure of damages is the-value of such property at the time and place it should have been delivered to him, less any amount remaining unpaid upon the purchase money, with interest thereon to the date of the verdict. (p. 43).</p> <p>6. Teial — Instruction Defining “Preponderance of Evidence" Held Not Improper.</p> <p>An instruction properly defining the term “preponderance of the evidence” is not improper in a case where the jury has been instructed that certain elements must he proven by a preponderance of the evidence, even though there are other elements whi'ch the jury have been instructed must he proved by evidence clear, full and convincing, (p. 44).</p> <p>6. Appeal and Error — Improper Argument Not Considered in Absence of Request for Instruction.</p> <p>'This court will not consider errors predicated upon the abuse of counsel of the privilege of argument, unless it appears that the complaining party asked for and was refused an instruction to the jury to disregard the improper remarks, and duly excepted to such refusal, (p. 47)</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by A. T. Goodwin and others against the Tony Pocahontas Coal Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>Suit by Martha C. Rice against William V. Rice. Decree for defendant, and plaintiff appeals.</p>

<p>1. Logs and Logging — Mines and Minerals — Deed Held to Vest Title to Minerals With Irrevocable License to Use Timber for Mining and Removing Minerals.</p> <p>A deed granting all of tile minerals in and under a tract of land, with all such rights-of-way and such of the timher upon said land as may he necessary for the mining and removing of such minerals, vests in the grantee the title to such minerals and an irrevocable license to use so much of the timber as may be necessary for the mining and removing of such minerals. (p. 68).</p> <p>2. Licenses — License Coupled With Interest for Valuable Consideration Not Revocable.</p> <p>A license coupled with an interest acquired for a valuable consideration is not revocable, but may be enjoyed by the licensee so long as his interest in the subject-matter continues. (p. 69).</p> <p>3. Logs and Logging — License to Use Timber Necessary for Removing Minerals Held Not to Confer Right to Use for Buildings for Bmployes of Mining Company.</p> <p>A right to use so much of the timber on a tract of land as may be necessary for mining and removing the minerals therefrom will confer the right to use only so much timber as is reasonably necessary to be used in direct connection with such mining operations, and at such times as the same may be required for such uses. It will not confer the right to use the timber upon such land for the purpose of building miners’ houses, store houses, churches, schools, and houses of entertainment for the prospective employes of the mining company, (p. 70).</p> <p>4. Same — Tender of Sum to Continue Right to Remove Timber Held Effectual Notwithstanding Conveyance of Land by Unrecorded Deed.</p> <p>The grant of the timber upon a tract of land with a provision that the same be removed therefrom within ten years, or in case of failure to so remove it within such time that the grantee may extend the time for removal by paying to the owner of the reversion a certain sum per year, and in case of his failure to pay the same he will he treated as having abandoned the said timber, and the title thereto shall revert to the owner of the land, is not defeated where, prior to the expiration of said ten years, such grantee pays to his grantor the stipulated amount provided to continue the said right of removal for another year, and upon discovering that such grantor was not at said time the owner of the reversion, tendered to the owner of the reversion, as shown by the records in the office of the county clerk, said sum of money, which tender was refused, even though it turns out that said land had heen theretofore conveyed away by the party to whom such tender was made by a deed which was not placed on record until after the expiration of said ten-year term. (p. 72).</p> <p>5. Same — Conveyance) of Timber of Certain, Size Held to Include Only Timber of That Size at Execution of Conveyance.</p> <p>A conveyance of all the timber upon a tract of land which measures twelve or more inches in diameter, to be cut and removed within a certain stipulated time, includes only the timber of that dimension when the conveyance was executed and delivered, (p. 73).</p>

<p>1. Attachment — Motion to Dismiss Properly Overruled, After Attachment and Order of Publication Against Defendant Quashed</p> <p>First point in the syllabus in Danser v. Mallonee, 77 W. Va. 26, reaffirmed and applied, (p. 81).</p> <p>2. Same — Affidavit Held Sufficiently to State Nature of Plaintiffs Claim.</p> <p>An attachment affidavit which states that. plaintiff and defendant entered into an agreement, jointly with others, on a given date, for drilling certain oil and gas leases in Pleas-ants county, by which each person was to share in the profits and bear the expenses according to his interest in the leases; that the defendant had a one-eighth interest, and became liable by reason of the operations being unsuccessful, and of his agreement to pay $338.60 (a one-eighth part of the aggregate expense), and feeing so liable requested tie plaintiff to pay said sum for bim, promising to repay, and tfee plaintiff did on tbat day pay off and discharge said indebtedness for defendant, which sum constitutes plaintiff’s claim and which, defendant refuses and fails to pay; and which affidavit also details the time, place and circumstances surrounding the contraction of said debt, sufficiently states the nature of plaintiff’s claim under sec. 1, chap. 106 of the Code. (p. 82).</p>

<p>Error to Circuit Court, Roane County.</p> <p>Proceedings by Otha A. Miller against tbe United Fuel Gas Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Mércer County.</p> <p>Detinue by W. A. Scott against the Mercer Garage & Auto Sales Company. Judgment for defendant, and plaintiff brings error.</p>

Proceedings by the State against Z. L. Harris for nonsupport of complainant wife. Judgment requiring defendant to pay complainant a monthly sum and committing him to the county jail in default of a recognizance for personal appearance and for compliance with the order for support, and he brings error.

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by A. ,S. Heck against O. B. Morgan and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by W. H. Zinn against Godfrey L. Cabot. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judgment — Judgment Against Defendant in Singular Valid Against All Ascertainable Defendants if Clearly so Intended.</p> <p>A judgment expressed to be against tbe “defendant”, where it is clear from the context and the other parts of the record that “defendants” is intended, will be considered and treated as a valid judgment against all of the defendants if they can be ascertained without ambiguity from the caption of the judgment, aided by other parts of the record. The omission of the letter “s” from the word defendant in such instance will be treated as a clerical error, (p. 127).</p> <p>2. Same — Judgment Cannot he Declared Void in Suit to Enforce on Grounds Which Might Save Been Asserted in Judgment Action.</p> <p>In a chancery suit to enforce the lien of a judgment against real estate of the judgment debtor, the judgment cannot be attacked and declared void upon grounds which might have been successfully asserted in the law court upon the trial, unless the judgment debtor alleges and proves some reason founded in fraud, accident, surprise or some other adventitious circumstance beyond his control, why the defense at law was not made. (p. 129).</p> <p>3. Same — Abstract of Judgment Alone Insufficient to Prove Judg-merit if Controverted.</p> <p>An abstract of a judgment exhibited with a bill in equity to enforce the judgment is not sufficient to prove the judgment if controverted-, but if the judgment in full is brought into the case by some other pleading the necessity of proof thereof is obviated, (p. 130).</p>

<p>Application for writ of prohibition by the State, on tbe relation of Frank Constanzo against John W. Kindelberger, Justice, and others.</p>

<p>Appeal from Circuit Court, Calhoun County.</p> <p>Suit by James M. Moss against W. M. Moss and another. From the decree, defendants appeal.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by G. R. C. Wiles and others against W. J. Walker and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>Error to Circuit Court, "Wyoming County.</p> <p>Ed. Arrington was convicted of second degree murder,, and he brings error.</p>

<p>1. Continuance — After Trial Amendment to Conform to Proof Court May Properly Proceed With Trial.</p> <p>If during the progress of a trial it becomes necessary to amend the declaration so as to malte it conform to the proof, as may properly he done pursuant to section 8 of chapter 131 of the Code, it is not error for the court to proceed -with the trial, notwithstanding objection thereto by the opposite party, unless upon motion made and for good cause shown for a continuance, (p. 160).</p> <p>2. Master and Servant — Proof Held Admissible XJnder Aver-ments as to Instructing Inexperienced Employee.</p> <p>Where in a suit by an employee for personal injuries due to the alleged negligence of defendant the primary act of negligence alleged is the failure of defendant to instruct plaintiff, inexperienced and ignorant of the dangers incident to his employment, in relation thereto and how to avoid the same, evidence of all such incidental facts and circumstances as fairly tend to establish the fact of such negligence and the manner in wihch his injuries were sustained is admissible without specific averment thereof, (p. 160).</p> <p>3. Same — Failure to Require Statutory Affidavit as to Age Not Excused by Misrepresentations.</p> <p>Neither the appearance of an employee nor the fact that he or his parent or guardian misrepresented his age will excuse the owner of a coal mine for failure to require the necessary affidavit of the parent or guardian required by section 25 of chapter 15H of the Code, (p. 161).</p> <p>4. Appeal and Error — Question Not Fairly Presented or Arising From the Record is Not Ground for Reversal.</p> <p>A question not fairly presented or arising upon the record, though made a point of error in this court, will not be considered or regarded as ground for reversal, (p. 162).</p> <p>5. Same — Payment of Premiums Into Compensation Fund No Protection Against Unlawful Employment.</p> <p>Payment of premiums into the workmen’s compensation fund of this state will not protect an employer against the action of an infant unlawfully employed by bim in a coal mine. In such case tbe rights and liabilities of employer and employee are controlled by tbe common-law principles applicable to master ahd servant, (p. 162).</p> <p>6. Infants — Boy Over 14 and Under 16 May Not 60 Employed in Mine While Schools Are In Session, Though Parents Domiciled Elsewhere.</p> <p>Notwithstanding tbe provisions of section 69, chapter 45 ol tbe Code, limiting tbe right to attend tbe free schools and receive instruction therein, in any district or independent district, to those who reside therein with intent to make such district their home, a boy over the age of fourteen and under the age of sixteen years may not be employed in any coal mine in this state while the schools of the district in which such mine is located are in session, although the domicil of his parents is in 'another district'or state, (p. 164).</p>

<p>Error to Circuit Court, Wyoming County.</p> <p>Action by J. P. Sizemore against Jobn Roach and others. Judgment of nil capiat, and plaintiff brings error.</p>

<p>1. Attachment — Affidavit Disclosing Element of Claim Which Would Suffice in Declaration or Bill Held, Sufficient.</p> <p>A statement of tlie nature of the plaintiff's claim in an affidavit filed for an attachment, which makes such a disclosure of its elements as would suffice in a declaration or bill setting it up, is sufficient, (p. 176).</p> <p>2. Same — Defendants Title Need Not Be Stated in Affidavit As Fully as is Necessary in a Pleading.</p> <p>The defendant’s title to property need not he stated as fully nor with the same degree of accuracy, in such a statement or a pleading filed by the plaintiff, as would be required in setting it up, if it were the title of the plaintiff, because the character of the title of the defendant lies peculiarly within his own knowledge, (p. 176).</p> <p>3. Same — Affidavit Held Sufficient as Against Assignee of Lease in Attachment for Rentals.</p> <p>In an affidavit for an attachment against an assignee of a lease, for rentals accrued under the terms thereof, and in a bill in equity filed' in the suit in which the affidavit was filed, it suffices, as to the assignment required by law to be effected by deed, to state and allege that the lease had been assigned and conveyed to the defendant, (p. 176).</p> <p>4. Same — Affidavit for Attachment in Equity Held Not Vitiated on Ground of Departure from Statute.</p> <p>An affidavit for an attachment filed in a suit in equity against a real debtor and others who are merely' formal defendants, is not vitiated, on the ground of departure from statutory terms, or omission thereof, by the use of the words', “that in said suit the plaintiffs, as affiant verily believes, are justly entitled to recover, at the least, against the defendant, (naming the debtor), the said sum” demanded, specifying the amount thereof, (p. 177).</p> <p>5. Landlobd and Tenant — Assignee Liable for Rent, Though Not in Possession.</p> <p>An assignee of a lease in which there is a covenant to pay the lessor rent, in specified amounts, at stated periods, assumes the obligations imposed by such covenant and is liable for the rent, even though he has not entered into possession of .the leased premises, unless he was prevented from so doing by the lessor, (p. 178).</p> <p>6. Mines and Minerals — Clause in Deed, Held Exception of Title to Minerals in Place.</p> <p>A clause in a deed conveying a tract of land, which, i!n terms, reserves the right to all oil, coal and other minerals taken from the land, with the privilege of entering thereon and obtaining the same and binds the grantor to pay to the grantee, as rental, one-tenth of such minerals, if any should be obtained, constitutes an exception and retention of the title to minerals in place, (p. 178).</p> <p>7. Landlord and Tenant — Proof of Assignment in Writing Under Seal Malees a Prima Facie Case of. Assignment by Deed.</p> <p>Proof that an assignment of a lease was effected by the execution of an instrument of writing under seal makes out a prima facie case of assignment thereof by deed. (p. 179).</p> <p>8. Evidence — Failure to Produce Instrument Held to Raise Presumption that Paper Exists.</p> <p>If the party against whom such case is so made out in litigation presumptively has such instrument in his possession and does not deny possession thereof nor produce it, upon demand therefor, these circumstances raise a presumption that it is such a paper as is described in the evidence, (p. 179).</p> <p>9. Landlord and Tenant — That Remote Assignment May Be Defective Held Not to Authorize Denial of Relief for Failure of Consideration.</p> <p>If, in an action or suit against an assignee of a lease, to recover rent accrued to the lessor on a covenant therein, it appears that a. remote assignment thereof may be defective and insufficient as to an undivided half thereof, recovery cannot be denied on the ground' of total failure of consideration, and, if partial failure of consideration has not been set up and relied upon in the defensive pleadings, as a ground of defense, the judgment or decree should be for the entire amount of the rent accrued.</p> <p>10. Limitation of Actions — Five-year Statute Inapplicable to Demand for Rents Against Assignee of Written Lease.</p> <p>To a demand against an assignee of a written lease, for rent accrued thereon, the five-year statute of limitations is inapplicable, (p. 181).</p>

<p>1. Receiveks — Equity Has Jurisdiction to Determine Title to Fund Placed in Hands of General Receiver in Action at Law.</p> <p>There & jurisdiction in a court of equity to determine the title to a fund placed in the hands of its general receiver, by an order entered in an action at law, to await and abide determination of the ownership thereof by a suit in equity to he brought for that purpose, (p. 183).</p> <p>2. Same — General Receiver Holding Funds Pending Determination of Ownership in Equity an Informal Party, Though Not Joined.</p> <p>In such case, the general receiver, though not named as a party in the bill, nor served with process, is an informal party to the equity suit. (p. 183).</p> <p>3. Eminent Domain — Rights to Fund in Sands of General Receiver Determinable by Rules Applicable to Specific Performance of Land Contract.</p> <p>If relief is sought in such a bill, on the ground that the fund is part of the compensation for land taken in a condemnation proceeding, which had been previously purchased by the plaintiff from the formal defendant, under an execu-tory contract, the rights of the parties are determinable by the rules and principles governing specific performance of contracts of sale of real property, (p. 183).</p> <p>4. Same — Purchaser Not Entitled to Specific Performance Not Entitled to Compensation Paid Into Court.</p> <p>If such a purchaser under a contract allowing reasonable time to abstract the title, make surveys, etc., and providing for consummation upon completion of such work, delayed his election to take the property with or without an abatement from the purchase money, for a period of four or five years to the detriment of the vendor, upon discovery of a serious defect.in the title to the property, he would not have been entitled to specific performance of the contract, wherefore he is not entitled to a decree for any part of the money paid into court in the condemnation proceeding as compensation for the land taken, (p. 186).</p> <p>5. Vendor and Purchaser — Condemnation of Lands Held Not Performance of Land Contract.</p> <p>If, in such case, the condemnor contracted with the vendee for purchase of the land, before commencement of the eminent domain proceeding, and instituted it against both ven-dee and vendor, upon discovery of the defect in- the title, prosecution of suich proceeding by the assignee is not performance of an undertaking on the part of the vendee, as part of his contract, to prosecute a summary proceeding under the statute in the name of the vendor, as guardian of infants then having interests in the land, for authority to convey such interests; nor is the. taking of the land by condemnation performance of the contract by the vendee or such assignee, (p. 186).</p>

<p>1. Wills — To Ascertain Intent, Whole Paper Will Be Considered With Circumstances.</p> <p>The purpose of construction of wills is to ascertain the intention of the testator as expressed in the instrument, and to this end the courts will consider the whole paper together, the apparent purpose sought to be accomplished by the testator, and the means used to that end, as well as any other circumstances disclosed hy the will which aid in determining such intention, (p. 189).</p> <p>2. Same — Language Will Be Considered, in Sense Which Will Avoid Conflict With Previous Provision.</p> <p>Where in a will the testator makes use of language which, according to one construction thereof, would be in conflict with a previous provision in the will, but according to another construction, of which the language is equally susceptible, would be in accord with the former provision, the court will adopt the latter construction, to the end that all of the provisions of the will may be made harmonious, and the language used by the testator given effect, (p. 189).</p> <p>3. Same — Devise With Right to Use Income arid to Sell Held to Vest a Life Estate.</p> <p>A will devising to testatrix’s husband all of her estate, to have and to hold so long as he shall live, and giving and granting unto him the right to use and enjoy the income thereof, and, should he deem it proper, to sell the same for his benefit, or to increase the income thereof, properly construed, vests in the husband a life estate in such property with the power to sell the same and enjoy the income from the proceeds of such sale, the corpus of the property in its original or in any changed form belonging to the remainder-man. (p. 190).</p>

<p>1. Fraudulent Conveyances — “Laches,” Where Through D'eath of Witnesses ■Adverse Party Injtcred, Bars Belief in Equity.</p> <p>Laches is delay in the assertion of a claim which works disadvantage to another, and where it appears that hy reason of such delay the adverse party would be injuriously affected because of the death of witnesses by whom the truth of the situation could be proven, or for other reasons, a court of equity will decline to give relief, (p. 200).</p> <p>2. Same — Equitable Doctrine of Laches Applicable to Suit to Subject Lands Held in Name of Another.</p> <p>The equitable doctrine of laches applies to a suit brought by a creditor for the purpose of subjecting to sale lands which it is claimed by him are the lands of his 'debtor, but the title to which is held by another in fraud of his rights, (p. 200).</p>

<p>Appeal from Circuit Court, Kanawba County.</p> <p>Suit by A. J. Peck, Assignee of tbe Elk Motor Truck Company, against W. S. Roberts and others. Decree for complainant, and defendant named appeals.</p>

<p>1. Appeal and Error — Questions Adjudicated on Former Appeal Law of Case ’Whether Correct or Not.</p> <p>Unless for other reasons a decree must he reversed, questions adjudicated on a former appeal must be adhered to on a second appeal as the law of the case, whether or not those questions were rightly decided, (p. 212).</p> <p>2. Same — Answer Pleading Sufficiency of Bill■ Disposed of On Former Appeal is Mere Reneioal of Matter Adjudicated.</p> <p>In so far as an answer pleads the sufficiency of the matter of a bill disposed of here on demurrer thereto upon a former appeal, the answer will be regarded as a renewal of the demurrer, and as fully adjudicated on the former appeal, (p. 212).</p> <p>3. Equity — Where Respondent Desires to Talce Evidence to Support Answer, He Should Move for Continuance.</p> <p>If upon the filing of his answer to a bill matured for hearing, and replication of the plaintiff thereto, respondent desires time to take evidence in support of his answer, good practice requires that he should move the court for a continu-anee, without which he will he regarded as having waived his right and as consenting to a hearing on hill and answer. (P. 215').</p> <p>4. Partition — Agreement Giving Interest to One Not Legally Entitled Thereto Must Be Clearly Proven.</p> <p>To he binding and effective an alleged agreement that a partition of land should include interests not legally involved therein, the agreement should be clearly proven, and it should appear that all the partitioners were parties thereto and mutually hound thereby, (p. 216).</p> <p>5. Estoppel — Estoppel Must Be Certain, and Must Not Be Taken By Argument or Inference.</p> <p>Every estoppel, since it concludes one from alleging the truth, must he certain to every intent and is not to he taken by argument or inference; and the facts upon which it is based must be clearly proven and not capable of bearing any other construction, (p. 217).</p> <p>6. Same — Mere Silence Insufficient; Person to Be Estopped Must Have Full Knowledge, and Must Intend to Mislead.</p> <p>Mere silence will not work an estoppel; to be effective it must appear that the person to be estopped has full knowledge of all the facts an'd of his rights, and intended to mislead or at least was willing that the other party might be misled by his attitude, (p. 218).</p> <p>7. Husband and Wife — Wife Not Necessary Party to Suit for Accounting Under Reservation of Oil Rights by Husband.</p> <p>When a contract and a deed from husband and wife which sold and granted all the right and title of the grantors in land in which the husband is interested, reserved and excepted therefrom one-sixteenth part of the oil therein belonging to the husband, the wife is not a necessary party to a suit subsequently brought during his life for an accounting and division of the oil produced from the land. (p. 220).</p> <p>8. Equity — To Prevent Injustice, Court May Permit Substitution of New Answer During Trial.</p> <p>Where during the progress of a suit it appears that a position taken in an answer will work a great injustice and result inequitably to respondent in the division and partition of the oil and gas produced from the land, the court in the exercise of a sound discretion should permit respondent to withdraw his original answer and file a new one, in order to relieve him from the inequitable and unjust consequences.. (p. 220).</p>

<p>1. Vendor and Purchaser — Burden of Proving yerbal Withdraw- , al of Written Offer of Bale Before Acceptance is Upon Party Asserting it.</p> <p>The burden of proof of a verbal withdrawal of a written offer of sale of real estate, before acceptance thereof, rests upon the party asserting it. (p. 224).</p> <p>2. Appeal and Error — Finding on Oonflicting Oral Evidence of Parties Alone Will Not Be Disturbed Where Credibility Not Impaired.</p> <p>A finding against such a withdrawal, upon the conflicting oral evidence of the parties to the transaction, in the absence of any proved -or admitted circumstance impairing the credibility of either of them or creating a preponderance of evidence in favor of either, will not be disturbed by the appellate court, (p. 225).</p> <p>2. Vendor and Purchaser — Unconditional Yerbal Acceptance of Written Offer of Bale Before Withdrawal Converts it Into a Contract of Bale.</p> <p>A verbal notification of unconditional acceptance of such an offer, before withdrawal thereof, converts it into a contract of sale, (p.225).</p> <p>4. Same — Yerbal Acceptance of Written Offer to Bell, Not Requiring Payment of Money, Held Concerted Into a Contract.</p> <p>If such an offer or option does not in terms or by necessary implication require payment of money as a condition or element of acceptance thereof, such notice without any payment converts it into a contract, (p. 225)..</p> <p>5. Frauds, Statute of — Yendor and Purchaser — Neither Consideration Nor Mutuality Lacking in Contract Created by Yer-bal Acceptance of Written Offer.</p> <p>Neither consideration nor mutuality is lacking in a contract so effected, (p. 226).</p>

<p>1. Vendok and Purchaser — Relief Granted Against Collection of Purchase Money, Where Title Questioned and There Are Covenants of General Warranty.</p> <p>A court of equity will grant relief against the collection of purchase money due on land where the vendee is in possession under a conveyance with covenants .of general warranty, if the title to such land is questioned hy suit, prosecuted or threatened, or it is clearly shown to he defective, (p. 230).</p> <p>2. Same — Where Defect in Title Merely Possible or Probable, 'Vendor Will Not Be Prevented From Enforcing Lien for Purchase Money.</p> <p>Where, however, the allegations upon which reliance is had for relief in such case do no more than to show a possibility or probability that there is a defect in the title, the vendor will not be prevented from enforcing his lien for purchase money, (p. 230).</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Hugh B. Bridgeman and another were convicted of lewd and lascivious cohabiting together, and they bring error.</p>

<p>Executors and Administrators — Grandfather Held Entitled to Appointment in Preference to Stranger.</p> <p>The .principles announced in the case in re the Administration of the Estate of Joel Stollings, 82 W. Va. 18, affirmed and applied.</p>

<p>1. Lis Pendens — One Purchasing Pending Action of Detinue is >Bound by Judgment Against His Vendor.</p> <p>One wlio purchases from a party to a pending action of deti-nue the subject matter involved in the litigation takes it subject to the final disposition of the case, and is bound by the judgment that is entered against the party from whom he derived title, (p. 249).</p> <p>2. Judgment — Binding on Privies as Well as Parties; Judgment in Detinue Binding on One Subsequently Purchasing Property.</p> <p>A judgment rendered by a court of competent jurisdiction, after service of process upon the parties to be affected thereby, is conclusive, not only upon those who are actually parties thereto, but also upon all who are in privity with them, (p. 249).</p> <p>3. Detinue — Sheriffs Return Showing Payment of Alternative Yalue Does Rot Prevent Recovery of Property When Plaintiff Refuses to Accept Value.</p> <p>In an action of detinue to recover specific property, a sheriff’s return on a writ of distringas, showing execution by taking the alternative value of the property, 'does not preclude a plaintiff who declines to. accept such alternative value from obtaining the specific property under another writ subsequently issued, (p. 250).</p> <p>4. Same — Plaintiff Not Required to Accept Alternative Yalue Until Reasonable Efforts to Obtain Property Have Failed.</p> <p>A plaintiff in detinue is entitled to insist on having the specific property, if obtainable, and is not required to accept the alternative value of the property recovered, on a tender made by the sheriff, until reasonable efforts to obtain the specific property have failed; but he cannot have both the property and its alternative value, (p. 250).</p>

<p>1. Constitutional Law — Provision for Assessment of Damages to Private Property Taken Held Self-Executing.</p> <p>Tlie last clause of section 9 of article III of tlie Constitution of this State relating to the taking or damaging of private property for public use, providing that when required by either of the parties the compensation therefor shall be ascertained by an impartial jury of twelve freeholders, properly construed, is so far self-executing as to entitle them in a suit at common law for compensation for property not taken but damaged, to have the damages assessed by such impartial jury of twelve freeholders, (p. 254).</p> <p>2. Same — "Provision Self-Executing,” if Right or Duty Given Enforceable Without Legislative Enactment. ’</p> <p>The principal test for determining whether a constitutional provision is self-executing is that the right it gives or the duty it imposes may be enforced without the aid of legislative enactment, (p. 255).</p> <p>3. Eminent Domain- — Where Assessment dp Jury of Freeholders Denied, Presumption is That Plaintiff Was Deprived of Constitutional Right.</p> <p>Where in a suit for compensation for private property taken or damaged for public use either of the parties thereto has plainly demanded and been denied the right to an impartial jury of twelve freeholders, it will be presumed that the jury was not so composed and that the party so demanding was deprived of a constitutional right, (p. 257).</p>

<p>X. Quieting Title — Allegation That Plaintiff is in “Possession” Held Sufficient Allegation of Actual Possession.</p> <p>The allegation in a hill to remove cloud upon title to land that plaintiff is in possession thereof, prima facie means actual possession, an'd on demurrer constitutes sufficient allegation of actual possession, (p. 263).</p> <p>2. Equity — General Demurrer to Bill Setting Up Several Grounds for Relief Challenges Bill As a Whole.</p> <p>A general demurrer to a bill setting up several grounds for relief challenges the sufficiency of the bill as a whole and does not call for adjudication as to the sufficiency of each one of the several parts, and if one ground be good, the general demurrer is properly overruled, (p. 264).</p>

<p>1. Mortgages — Trustee Under Deed by Judicial Proceedings May Remove Impediment to Fair Sale.</p> <p>It is the right and 'duty of a trustee in a deed of trust securing payment of a debt, before selling the property conveyed by it, to cause removal of an impediment to a fair sale thereof, by appropriate judicial proceedings, when the circumstances are such as will likely prevent realization of a fair price therefor, and the other interested parties have not instituted such proceedings, (p. 268).</p> <p>2. Same — Sale by Trustee Without Removing Impediment to Fair Sale May Be Enjoined.</p> <p>An attempted sale under such circumstances, without previous removal of the impediment, will be enjoined, (p. 268).</p> <p>3. Same — Facts Held to Show Impediment to Fair Sale Under Junior Deed of Tmost.</p> <p>Sale of property encumbered by two deeds of trust, in a suit to enforce judgment liens thereon, to which the trustee and creditor in the junior deed of trust were not made parties, application of the proceeds of the sale on the debt secured by the senior deed of trust, and a subsequent conveyance of the property by the purchaser to strangers to all of the transactions; constitute an impediment to a fair sale thereof under-the junior deed of trust. (p.269).</p> <p>4. Same — Debtor Under Deed of Trust Held Proper Party to Suit to Enjoin Deed of Trust.</p> <p>In such case, the debtor is a proper party to a suit instituted by the grantee in such subsequent conveyance, to enjoin a sale of the property under the second deed of trust, (p. 270).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Proceedings by William A. Matheny against John Baker White to vacate a tax deed. Decree for defendant, and complainant appeals.</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Action by Robert Cochran against George P. Craig and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the Regent Waist Company against the O. J. Morrison Department Store Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Covenants — General Warranty Cannot Enlarge Estate Conveyed By Deed.</p> <p>A covenant of general warranty in a deed cannot enlarge tlie estate thereby conveyed.</p> <p>2. Same — General Warranty Restricted to Estate Conveyed by Deed.</p> <p>A covenant of general warranty in a deed, which grants, all of the right, title and interest of the grantor, is restricted to the estate conveyed, and 'does not warrant the title to the land described in the deed. (p. 313).</p> <p>3. Deeds — Estate Will Not Be Enlarged by Construction, Where Language Clear and Unambiguous.</p> <p>The courts will not, by construction, enlarge the estate conveyed by a deed, where the language of the grant is clear, plain and free from ambiguity, (p. 313).</p>

<p>1. Dead Bodies — Equity May Restrain Removal When Rightfully Buried.</p> <p>■Equity has jurisdiction to restrain the removal of or interference with the remains of the dead rightfully burie'd in a cemetery, (p. 319).</p> <p>2'. Adverse Possession — Those Using Land for Cemetery Purposes With Owners Consent May Acquire Title By Adverse Possession.</p> <p>Where a parcel of land has been set apart by the owner thereof as a place for the burial of the dead those who, with the consent and acquiesence of such owner, use the same for the purpose for which it has been dedicated, selecting and appropriating plots or squares for the burial of their dead therein free of charge, may acquire a right to such plots or squares so appropriated by adverse possession, (p. 319).</p> <p>3. Same — Cemeteries—Adverse Possession May Confer Right of Perpetual Easement in Cemetery Lot; Equity Will Protect Such Rights.</p> <p>While the right which one acquires in a cemetery lot is rather in the nature of a perpetual easement subject .to be controlled by the state in the exercise of its police power, it is such a valuable right as a court of equity will protect, and the same character of adverse possession that w,ill confer title to real estate will suffice to confer such right, (p. 319).</p> <p>4. Same — Sufficiency of Boundaries of Burial Lot for the Purposes of Adverse Possession Stated.</p> <p>It is not necessary in order to the acquirement of a right in a burial lot by adverse posession that the same be fenced. If the limits of such claim are clearly defined by improvements upon the lot and by a slight barrier or ridge extending all the way around the same, and so maintained for the period of ten years, clearly indicating the extent and nature of the claim, it will be sufficient to confer the right by adverse possession, (p. 320).</p> <p>5. Cemeteries — One Who Buries a Body on Another’s Burial Lot May Be Requierd to Remove it.</p> <p>One who buries the body of his1 dead relative upon a burial lot which, another has the exclusive right to use for such purpose will he required by mandatory injunction to disinter and remove the same. (p. 321).</p>

Suits between W. B. Woodrum, W. E. Yates, and others and J. B. Burton and others, and between W. B. Skaggs and others and W. E. Yates. The suits were heard together, and from a decree refusing the relief prayed for by Woodrum and others against Burton and others a,nd granting the relief prayed for by the latter against Yates alone, Woodrum and others appeal.

<p>1. Landdoed and Tenant — Owner Liadle for Injuries to Tenant’s Property by Freezing and Bursting of Water Pipe.</p> <p>The owner of a building, containing storerooms or apartments leased to various tenants, who permits the water to remain in the pipes of a vacant portion of the building in bis possession and control, without exercising reasonable precaution to prevent its freezing when the temperature probably may endanger it, is liable to the tenant of a lower floor whose property is injured by the freezing and bursting of a water pipe under such circumstances, unless relieved therefrom by the contributory negligence of the tenant, (p. 350).</p> <p>2. Same — Tenant Failing to Shut Off Water to Prevent Freezing Held Not Oontridutorily Negligent.</p> <p>Where the owner of such a building has installed therein but one stop-cock or valve, located in the basement, which when closed shuts off the water from the entire building, a tenant having exclusive possession and control of the first floor and basement, who knows of the vacancy of the two upper floors of the building, is not eontributorily negligent in failing to close such valve on an evening when the temperature is such as to endanger freezing, when he does not know that the stop-cock controls the water over the entire building, but believes it to relate only to his own leasehold, (p. 350).</p> <p>3. Same — Tenant’s Contributory Negligence in Not Closing Valve Covering Water Supply Held for Jury in Action for Damage From Water.</p> <p>Where the testimony is conflicting as to the tenant’s knowledge that the stop-cock or valve governs the water supply over the entire building, and as to his authority to close it, the solution of the conflict so presented is peculiarly within the province of a jury, and its finding, in the absence of a clear preponderance of evidence to the contrary, and of prejudicial error during the course of the trial, cannot properly be disturbed, (p. 346).</p> <p>4. Trial — Instruction Ignoring Contributory Negligence Held Erroneous, and Not Cured by Other Instructions.</p> <p>Where contributory negligence is relied on in 'defense of an action for wrongful injury, an instruction directing a finding in favor of the plaintiff on certain facts therein set forth, but omitting.any reference to the facts tending to establish contributory negligence, and entirely ignoring such defense, is erroneous and cannot be cured by other instructions given in behalf of either party, (p. 351).</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by A. C. Lawrence and others against the Montgomery Gas Company and others. Decree for complainants, and defendants appeal.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by William P. Hubbard against the Equitable Life Assurance Society of the United States. Verdict for plaintiff was set aside, a new trial granted, and plaintiff brings error.</p>

Case Certified from Circuit Court, Wayne County. Suit by Orra Perdue and others against Sam Ward and others. Judgment for defendant -on demurrer, and case certified.

<p>1. Easements — Use By Land Owner of Private Way Over Adjoining Tract of Another Jointly with Him Held 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, even though the way is used jointly by both owners as a common outlet from their properties, (p. 379).</p> <p>2. Same — Use of Private Way Over Another for 10 Years Held to Give Title by Prescription.</p> <p>Such use for a period of ten years, in the absence -of proof of circumstances altering its character, ripens into perfect title to an easement over the adjoining land by prescription, (p. 379).</p> <p>3. Same — Way Through Enclosed Lands Obstructed by Gates Presumptively Private Way; Claimant of Way Through Inclosed Lands, Heed Only Prove Open, notorious, and Known User to Establish Easement Therein.</p> <p>A way through inclosed lands, burdened or obstructed by gates or bars, 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 independent assertion of right, beyond that shown by his open, notorious and known user, in order to establish or maintain the easement. (p. 379).</p> <p>4. Same — Extent of Easement by Prescription Determined by Extent of User.</p> <p>When an easement has been acquired by prescription, the extent of the right so acquired is measured and determined by the extent of the user out of which it originated, (p. 381).</p>

Case certified from Circuit Court, Upshur County. Minnie Kirkpatrick was indicted for practicing medicine without a license. Indictment quashed, and ease, certified.

<p>1. Appeal and Error-Courts Discretion as to Examination of .Witnesses Will Not Toe Reversed Except for Atuse.</p> <p>A trial court lias wide latitude in the conduct of a trial, and particularly in matters pertaining to the examination of witnesses, and its rulings in relation thereto will not be reversed except when there has been a plain abuse of its discretion. (p. 391).</p> <p>2. Trial&emdash;Refusal to Admit Evidence After Conclusion of Introduction of Evidence to Admit Contradictory or Cumulative Testimony Not An Atuse of Discretion.</p> <p>And when the evidence in' chief and in rebuttal have been concluded on both sides and the case is about to be submitted to the jury, the refusal of the court to open up the evidence to admit the testimony of other witnesses known but not summoned and whose evidence is but contradictory or cumulative of some other evidence will not ordinarily constitute abuse of the court’s discretion or reversible error, (p. 391).</p> <p>3. False Imprisonment — Not Excessive Damages.</p> <p>Where in an action for damages for assault and unlawful arrest and. imprisonment the evidence shows that defendant falsely and without any grounds whatsoever swore out a warrant charging plaintiff with a heinous crime, and while in transit from this state to a distant state accompanied by her daughter causes her to be arrested in the night-time, taken from the train on which she is traveling and conducted through the public streets of a city and before a magistrate and delayed from four to six hours, and then to be discharged by the magistrate without offering any evidence of the truth or falsity of his accusation, and her journey is thereby broken and she is greatly disturbed in mind and body, a verdict of $2,725.00 will not be set aside as excessive and unwarranted by the evidence, (p. 393).</p> <p>4. Same — Mental Suffering Ground for Compensatory and Punir tive Damages.</p> <p>In such case mental pain and suffering and the insult, indignity and humiliation inflicted upon plaintiff by the wrongful and unlawful act of the defendant constitute just bases for compensatory damages, to which, if the jury believe from the evidence the sum found therefor is not sufficient to punish the defendant for his wrongful and unlawful conduct, the jury in their discretion may add such additional sum as will constitute sufficient punishment therefor, (p. 394).</p>

Certified from Circuit Court, Calhoun County. Action by the Hope Natural Gas Company against C. A. Jarvis, administrator. A demurrer to the declaration was overruled, and ease certified.

<p>1. Criminal Law — Evidence of Trailing of Accused by Bloodhounds Held Admissible.</p> <p>Evidence of the trailing of a person accused of the commission of an offense, from the place of the perpetration thereof to the place of his arrest, by blood hounds shown to be of pure blood, to have acuteness of scent and power of discrimination between persons by means thereof, to have been trained in the trailing of human beings and to have successfully trailed and identified other persons accused of crime, as having been at the scene of commission thereof, is admissible on an issue as to his identity, as a person who had been at the place of the perpetration of the offense of which he is accused, at or near the time thereof, (p. 405).</p> <p>2. Same — Admissibility of Trailing of Accused by Bloodhounds Held Not Precluded by Issue of Whether Accused Traveled on Hoot or Horseback.</p> <p>Admissibility thereof is not precluded by another issue. as 'to whether the accused traveled on horseback or afoot, there being evidence' tending to prove each hypothesis, nor by a preponderance of evidence, if any, in favor of the former, (p. 406).*</p> <p>3. Same — If Evidence Tends to Prove Pacts Relevant to Any Issue it is Admissible.</p> <p>Upon an inquiry as to the admissibility of evidence, its weight or probative value is not the criterion or test. If it tends even slightly to prove a fact relevant to any issue in the case and material or forceful in the determination thereof, it is admissible, (p. 406).</p> <p>4. Same — Admission of Accused of Commission of Offense Borne Hours Later, Stating Motive Therefor, Held Inadmissible as Belf-Serving and Not Part of Res Gestae.</p> <p>' A statement of one accused of an offense, made some hours after the act in question, admitting it and stating the motive for commission thereof, is inadmissible, it being no part of the res gestae and being a self-serving declaration, (p. 406).</p> <p>5. Same — Evidence That the Person Shot Had Driven His Wife From Home, and That She Came to the Home of Accused Held Improperly Excluded.</p> <p>Upon the trial of a person charged with having maliciously shot the husband of his sister, in which there is evidence tending to prove facts which might be deemed by the jury to- amount to provocation generating heat of blood, or to justification of the shooting on the ground of self-defense, it is improper and prejudicial, to exclude evidence tending to prove that the wife, on coming to the home of the accused, shortly before the shooting, was in a bruised and lacerated condition and had said her husband had beaten her and driven her from home, offered in connection with evidence that the accused had gone to thé home of the vidfim, at the request of tlie wife, on a humane and proper mission, in the attempt to perform which the shooting occurred, (p. 406).</p> <p>6. Same — Slight Evidence Sufficient to Justify Instructions Submitting. Hypotheses it Tends to Prove.</p> <p>Slight evidence is sufficient to justify the giving of instructions submitting the hypotheses it tends to prove, (p. 408).</p> <p>7. Same — Instruction as to Reasonable Doubt of any Juror Should be Given.</p> <p>An instruction on the subject of the legal requirement of unanimity of the jury in the finding of a verdict, which, if given, would advise the jury that, if any juror, after due consideration of the evidence and consultation with his fellows, has reasonable doubt of the guilt of the accused in a criminal case, it is his duty not to surrender his own convictions, simply because the other jurors are of a different opinion, is correct, and should be given upon request, unless its subject is covered by some other instruction given in the case, (p. 409).</p>

<p>Certified from Circuit Court, Calhoun County.</p> <p>Suit by John Propst against the County Court of Calhoun County and others. Demurrer to bill sustained, and case certified.</p>

Suit by Bank of Marlinton, for itself and others who might join, against the Pocahontas Development Company and others. Decree for plaintiff, and defendant named appeals.

<p>1. Municipal Corporations — City Accepting Conveyance Had Power to Contract to Complete Former Owner’s Plans for Improvements to Attract Prospective Purchasers, in Accordance with Previously Adopted Parle and Boulevard Plan.</p> <p>A municipal corporation whose charter empowers it to open, maintain and control public streets and bridges within the city, to acquire, lay off, and control public grounds, squares and parks for the convenience of its inhabitants, and to purchase, condemn, lease, or contract for the real estate necessary to effectuate such purposes, lawfully may enter into a contract with an owner of land within its boundaries, whereby, in consideration, of his voluntary conveyance to the city of certain portions of his property which he was preparing to develop, ornament and improve for the benefit of other land owned by him, in order to render it attractive to prospective purchasers of sites for homes, by the construction of bridges and boulevards and the opening and dedication of a public park thereon, the city undertook to complete and maintain such improvements without further expense to him and in accordance with a park and boulevard plan which it theretofore had adopted, (p. 426).</p> <p>2. Same — Where City Purchases Property Under Agreement to Improve, it May Not Retain it and Decline to Fulfill Contract.</p> <p>Having acquired the property pursuant to such an- agreement, the municipality may not lawfully retain it and at the same time decline to fulfill its portion of the agreement, (p. 428).</p> <p>3. Same — Seller of Land to City Under its Agreement to Improve May Recover Damages for Breach.</p> <p>One who in good faith conveys property to a municipality in reliance upon such an agreement, may, in case of its failure to comply with its express undertaking, recover compensation in damages for the loss sustained by reason of the breach, (p. 429).</p>

Certified questions from Circuit Court, Ritchie County. Criminal prosecution by the State against D. P. Ferree. A demurrer to the indictment was overruled and the question of its sufficiency certified to the Supreme Court of Appeals.

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by A. J. Lindenburg against the American Railway Express Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judicial Sales — Abatement for Deficiency Not Discovered Until After Confirmation of Sale if Ignorant Thereof.</p> <p>A purchaser of land judicially sold by the acre may have an abatement from tbe unpaid purchase money, for a deficiency in the estimated quantity of the land on which the aggregate price was based, as ascertained by a subsequent survey and established -by proof, although discovery of such deficiency was not made, nor the demand for abatement set up, until after confirmation of the sale and execution of the purchase money notes, provided the purchase was made in ignorance of such deficiency, (p. 449).</p> <p>2. Same — Abatement for Deficiency in Quantity of Land, Because of Lack of Title Where Purchase Ignorant Thereof.</p> <p>In the case of such a sale, abatement from unpaid purchase money may be had, also', for a deficiency in the quantity, of the land, due to total lack of title to a portion thereof, in the person in whose name it was sold, on discovery thereof and demand for abatement after confirmation of the sale, if the purchase was made in ignorance of such want of title, (p. 449).</p> <p>3. Same — Caveat Emptor Rule Inapplicable Where Quantity Deficient Upon Survey or Because of Want of Title.</p> <p>In both of such cases the rule caveat emptor is inapplicable; for the reason, in the first, that the purchaser was under no duty to ascertain the quantity of the land, before confirmation of the sale; and, in the second, that there was a total failure of consideration within the legal meaning of the terms, to the extent of the deficiency, (p. 449).</p> <p>4. Same — Answer to Rule Against Purchaser for Purchase Money May be Piled Any Time Before Entry Although Respondent in Default.</p> <p>An answer to a rule against a purchaser of land under a judicial sale, to show cause why a decree shall not be entered against him, for the amount of his purchase money notes, and the land sold to satisfy the lien thereon for the amount of the decree, may be filed at any time before entry of the decree, notwithstanding the respondent is in default as to the filing of his answer, and the court cannot properly reject a sufficient answer to the rule tendered before entry of the decree, on the ground of delay, (p. 449).</p>

Suit by the State against J. B. Snyder and others to sell land for the benefit of the school fund. Judgment for plaintiffs, and certain defendants appeal.

Suit by Mellwaine, Knight & Co., and others against William Fielder and others. Decree for plaintiffs, and defendant named and others appeal.

Action by R. G. Martin, administrator of tbe estate of John Lear, deceased, against the Culpeper Supply Company. Verdict for plaintiff was set aside, a new trial awarded, and plaintiff brings error.

<p>Error to Circuit Court, Cabell County.</p> <p>W. W. Driver was convicted of an attempt to commit rape. A new trial was refused, and be brings error.</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Jacob Lutz was convicted of murder, and he brings error.</p>

Action by Tony Glinco, administrator, against W. E. Winter and others, for wrongful death, Judgment for plaintiff, and defendants bring error.

<p>Error to Circuit Court, Mineral County.</p> <p>Action by John Robinette against Hubbard Coal Mining Company. Judgment for defendant, on demurrer to evidence, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>Suit by H. T. McNeil against J. B. Kennedy. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Mineral County.</p> <p>Suit by E. G-. Kimmell against M. R. Twigg. Decree for plaintiff, and defendant appeals.</p>

Bill for specific performance by Willie C. Walter and another against Justus F. DeMoss and another. Decree for de-defendants on demurrer, and plaintiffs appeal.

Suit by T. J. Sayre, administrator of the estate of Charles Duff, deceased, against Nancy Whetherholt, William F. Ray, administrator of the estate of Margaret E. Duff, deceased, and others. Decree for plaintiff, and defendant Ray appeals.

<p>1. Railroads — ■Trainmen Discovering Animal Near Track, Must Stop if Necessary.</p> <p>If, in the exercise of the legal duty of a railroad company, through its servants in charge of its engines and trains, to keep a reasonable look out for domestic animals trespassing upon its premises and so situated as to be in danger of injury by the running of such engines and trains, such servants discover such an animal standing near its track and in a situation suggesting probability of its getting on the track through fright or otherwise and suffering injury from their engine or train, it is the duty of the company, through them, to stop their engine or train or slacken its speed, if the safety of the animal requires such action, and to take such other reasonable precautions for its safety as may be necessary, (p. 550).</p> <p>2. Same — Negligence in Omitting Precautions for Animal’s Safety Held for Jury.</p> <p>A court cannot say, as matter of law, that omission of such precautions is proper and justifiable, on the discovery of a cow standing eight or ten feet from the track and between it and an embankment, slope or hillside, the necessity therefor, under the circumstances, being a question for jury determination. (p. 550).</p> <p>3. Same — Negligence in Assuming Animal’s Safety Held for Jury.</p> <p>Whether, on discovery of an animal so situated, the servants of the railway company were negligent in their assumption of its safety without resort to precautions therefor and their failure to take them, until the animal had actually come upon the track or started to do so, is a question proper for jury determination, wherefore a demurrer to evidence should be overruled, in so far as it depends upon such circumstance, (p. 550).</p> <p>4. Trial — Numerical Preponderance of "Witnesses Does Not Authorize Grant of Demurrer to Evidence.</p> <p>Numerical preponderance of witnesses in favor of one of the parties to an action, in the trial of an issue wholly dependent upon oral evidence and the credibility of the witnesses, does not make it the duty of a court, in passing upon a demurrer to the evidence, tó rule in favor of the greater number of witnesses. In as much as a jury could find otherwise upon such evidence, it is the duty of the court to overrule the demurrer in so far as it depends upon such preponderance in favor of the demurrant, (p. 550).</p>

<p>1. Bilis and Notes — No Recovery on Note Transferred in Violation of Conditions of Delivery Unless Transferee, a Bona Fide Holder.</p> <p>One wlto executes an'd delivers to a corporation through its duly authorized agent a negotiable promissory note as the price of property which he contemplates purchasing from such corporation, upon the condition that such note shall not become a valid and binding obligation until he has had an opportunity of examining and inspecting the property at the expense of the owner thereof, and approving the same; or, in case he is not satisfied with said property, that said note will be returned to him, cannot he held liable in a suit upon said note by a party to whom the same was transferred in fraud of his rights, and in violation of the conditions upon which the same was delivered, unless such transferee or endorsee shows that he is a bona fide holder of the same for value in due course, (p. 561).</p> <p>2. Same — Transferee of Note Transferred in Violation of Conditions of Delivery Held Not a “Bona Fide Holder.”</p> <p>One to whom such note is transferred, in fraud of the rights of the maker, for .the purpose of holding the same until due, and applying the proceeds thereof after the same is paid to the discharge of an obligation of such fraudulent trans-feror, is not a bona fide holder thereof for value.in due course, and in a suit brought by a third party to whom such note was transferred by such first transferee after its maturity the maker is entitled to the benefit of all of the equities existing between him and the original holder thereof, and to make all of the defenses which he might make were the suit brought by such original holder, (p. 561).</p>

<p>Error to Circuit Court, Logan County.</p> <p>Action by Irene Nowlan against tbe Guardian Life Insurance Company of America. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Juky — Court Cannot Try Action Where Issue Joined and Case Matured for Trial Unless Jury Trial Waived.</p> <p>It is error for tlie court, in lieu of a jury, to try an action at law where there has been an appearance hy the defendant, issue joined, and the case matured for trial; unless it appears from the record that trial hy jury was waived hy the parties either expressly or hy conduct which implies a waiver, (p. 570).</p> <p>2. Same — Jury Trial Not Waived Toy Absence of Defendant When Case Called Three Years After Appearance.</p> <p>Where the defendant in an action at law appears and pleads the general issue and files notice of recoupment, and the case is continued, and when the case is called for trial three years later he is not in the court room either in person or hy counsel, it will not be presumed he has thereby waived his right of trial hy jury, and it is error for the court to try the issue in lieu of a jury and render judgment as by default, (p. 571).</p>

Case certified from Circuit Court, Ohio County. Separate actions by A. M. Hamilton and by William G. Caldwell against the Wheeling Public Service Company and others. Motions to quash notices of motions for judgment were overruled, and cases certified.

Certified Question from Circuit Court, Mason County. W. H. Griffith was charged with murder. A plea to the jurisdiction was overruled, and question certified.

<p>Error to Circuit Court, Mercer County.</p> <p>Action by E. C. Stone against L. Kaufman. ■ Judgment for plaintiff, and defendant brings error.</p>

Suit by tbe Acadian Coal & Lumber Company against tbe Brooks Run Lumber Company, tbe South Side Trust. Company of Pittsburgh, and others. Decree for complainant, and defendant Trust Company alone appeals.

<p>Error to Circuit Court, McDowell County.</p> <p>Joseph Blazovitch was convicted of carrying arms without a license, and he brings error.</p>

<p>Appeal from Circuit Court, Webster County.</p> <p>Suit by Samuel S. Hines and others against Kate A. Hilleary and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by Daniel S. Meyers against Minnie E. Meyers. Decree for plaintiff, and defendant appeals.</p>

<p>Error to Circuit Court, Logan County.</p> <p>Action by Andrew Browning against the D. E. Hewitt •Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

Case Certified from Circuit Court, Marshall County. Suit by Alcinda 0- McMechen and others against the Hitchman-Glendale Consolidated Coal Company and others, for an injunction. Demurrers to bill provisionally sustaind, and case certified.

<p>Appeal from Circuit Court, Webster County.</p> <p>Suit by Retta Norman against Epbriam Norman for divorce. Decree for defendant and plaintiff appeals.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Detinue by C. F. Lowther against the Ohio Valley Oil & Gas Company. Judgment for plaintiff, and defendant brings error.</p>

<p>' 1. Frauds, Statute of — One Not a Party to a Verbal Contract for Bale of Land Cannot Interpose Statute as a Defense to Specific Performance:</p> <p>One who is not a party to a verbal contract for the sale of land, or not in privity with the parties thereto, cannot interpose the statute of frauds as a defense in a suit for specific performance of the contract. This statutory defense is personal and cannot be made by persons who are neither parties nor priyies to the agreement, (p. 663).</p> <p>2. Same — Solder of Bare Legal Title Cannot Interpose Defense of Statute of Frauds Sor of Laches in Suit Between Equitable Owner and Purchaser for Specific Performance.</p> <p>The holder of the bare legal title to land cannot interpose the defense of the statute of frauds, nor of laches, in a suit between the equitable owner and a purchaser for specific performance of a verbal contract of sale of the land, where the holder of the bare legal title was not a party to the contract. (p. 662).</p> <p>3. Trusts — Statute of Frauds Has No Application to Express and Implied Trusts in Lands.</p> <p>The statute of frauds has no application to express or implied trusts in lands, and parol testimony may be taken to establish either, (p. 664).</p>

Action by tbe State, on the relation of the A. L. Black Coal Company, against the United States Fidelity & Guaranty Company. Judgment for defendant on demurrer, and plaintiff brings error.

<p>1. Criminal Law — Instructions to Acquit if Reasonadle Doubt Raised by Evidence Itself or Ingenuity of Counsel Erroneous.</p> <p>An instruction in a trial for felony, which tells the jury that if a reasonable doubt of the guilt of the accused is raised in their minds by the evidence itself, or by the ingenuity of counsel, they should find the accused not guilty, is erroueous, and should be refused.' (p. 675.)</p> <p>2. Arrest — Police Officer May Arrest Without Warrant one Committing Breach of Peace in His Presence.</p> <p>A police officer, within his jurisdiction, may lawfully arrest, without warrant, one who commits a breach of the peace in his presence or view. (p. 676).</p> <p>3. Homicide — Instruction as to Right of Person Arrested Without Warrant to Kill Policeman Erroneoxis.</p> <p>Where a police officer, in attempting to arrest without warrant a person who is intoxicated, disorderly, loudly swearing and disturbing the peace, is shot and killed by that person who, to excuse his act, relies on the defense of accidental discharge of the revolver in his hand caused by muscular reflex action superinduced by a blow on his cheek bone • from the policemen’s mace, and not upon self defense or the unlawfulness of the -attempted arrest, an instruction, which tells the jury that if they believe the attempted arrest was unlawful then the defendant was justified in repelling it with force and to kill the p'oliceman if such was necessary to protect himself from death or great bodily harm, is not properly drawn and should be refused, (p. 677).</p> <p>4. Criminal- Law — Instructions Propounding Abstract Propositions of Law Improper, But Not Reversible Error, Unless Misleading.</p> <p>Instructions propounding abstract propositions of law should not be given; but if ‘given, and there be evidence to which they are applicable, the appellate court will not reverse for that cause, unless it is 'clear that' the jury has Been misled or confused thereby, (p. 679).</p> <p>5. Same — Instructions for Prosecution Need Not Embody Theory of Defense if Given in Defendant’s Instructions; Instructions Must be Considered as a Whole.</p> <p>If the law applicable to and governing the theory of the defense is fully and fairly propounded in the instructions given for the defense, it is not necessary that those given for the prosecution should contain propositions of law relied upon by the defense, or that there should be incorporated therein the theory of the defense. Instructions must be considered together as a whole; an instruction based on one theory, unless binding, does not ignore another theory on which other instructions are given, (p. 680).</p> <p>6. Same — If Context Shows That Word Mistakenly Used Was Not Misleading it is Not Prejudicial.</p> <p>Instructions must be considered in the light of the evidence; and if the context of an instruction and the evidence clearly show that one word therein was used for another, and that the jury could not have been misled by a mistake so clear and palpable, the error will not he considered as prejudicial, (p. 681).</p> <p>7. Breach oe the Peace — “Breach of Peace” Defined.</p> <p>A “breach of the peace” includes all violations of the public peace, order or decorum, such as to make an affray; threaten to beat, wound or kill another, or commit violence against the person or property; contend with angry words to the disturbance of the peace; appear in a state of gross intoxication in a public place; recklessly flourish a loaded pistol in a public place while intoxicated; and the like. (p. 682).</p> <p>8. Case Approved.</p> <p>Fourth point of the syllabus in State v. Weisengoff, 85 W. Va. 271, is approved and applied, (p. 684).</p> <p>9. Criminal Law. — Instruction as to extent to which Jury are Judges of Evidence Held Erroneous.</p> <p>An instruction which tells the jury that they are the sole judges of the evidence, and of the weight to be given thereto, and that they may believe or refuse to believe the testimony of any witness or any part of his evidence, is erroneous, prejudicial and reversible error, (p. G85).</p> <p>10. Same — Order and Time of Introduction of Evidence in Discretion of Trial Goitrt.</p> <p>The order and time in which evidence shall he .introduced is largely in the discretion of the trial court and a verdict will rarely he reversed for that reason, unless clearly prejudicial, (p. 686).</p> <p>11. Arrest — Knoion Peace Officer Arresting Without Warrant Need ■ Not Disclose Authority Until Bequest Therefor.</p> <p>• In making an arrest without a warrant a known peace officer ,is not bound to disclose his character or authority, or give notice of his intention, until the party has submitted, or has demanded by what authority the arrest is made, as his known official character is sufficient in the first instance to require submission, unless a demand for disclosure of his authority is first made. (p4 688).</p> <p>12. Criminal Law — Hypothetical Question as to Muscular Beflex Action Causing Discharge of Pistol Need Not Give Bemote Details.</p> <p>Where a violent blow on the cheek hone is struck with a policemen’s mace, and it is designed to prove by expert testimony that the blow would cause muscular reflex action sufficient to .immediately cause the discharge of an automatic pistol then in the hand of' the recipient of the blow, it is not necessary to incorporate in the hypothetical question, propounded to the expert witness, all the details of the evidence in the case, remote from the time when the blow was given; they could shed no light upon whether the blow given, as fully described and set out .in the question propounded, would cause muscular reflex action, (p. 690).</p> <p>13. Homicide — De Facto Officer Entitled to Same Protection as if Title Undisputed in Prosecution for Murder of De Facto Officer Appointment and Qualification Need Not be Shown.</p> <p>A de facto officer while engaged in the execution of his duties is entitled to the same protection from assault, obstruction or interference, as if his title was undisputed. And in a prosecution for the murder of an officer de facto it is not necessary to prove that he was duly appointed or elected, or had duly qualified, (p. 686).</p> <p>14. Same — Evidence of Friendly Belations Between Defendant and Victim Admissible to Bebut Element of Malice.</p> <p>Evidence tending to show friendly relations existing between one charged with homicide and his victim is admissible to rebut the element of malice, and it is error to refuse to allow it to go to the jury. (p. 695).</p> <p>15. Witnesses — Impeaching Evidence Inadmissible in Absence of Proper Foundation.</p> <p>Evidence of a witness, called solely for the purpose of impeaching another witness by contradicting his testimony on some particular point, by showing he had on other occasions made conflicting statements, should be refused where no proper basis has been laid for the contradiction, (p. 691).</p>

Action by Joseph H. McDermott and others against Fair-mont Gas & Light Company and others. From judgment for alleged insufficient amount, plaintiffs appeal.

Original application by the State, on. the relation of Charles Gabbert and others, for a writ of mandamus against George M. Robinson and others, constituting the board of canvassers.

<p>1. Maktiax, Law — Gannot Obtain in Absence of Military Operations.</p> <p>Martial law operating, in the government of territory, as a substitute for the civil law or as an addition thereto, so as to restrict the liberties of citizens and augment the powers of officers, is an incident of military operations and of actual military occupation of the territory so governed; wherefore it cannot obtain in the absence of such operations and occupation. (p. 715).</p> <p>2. Same — ■Existence of State of War nor Governor’s Proclamation Declaring it, Not Alone Sufficient to Inattgurate Martial Law.</p> <p>The existence of war between a state and citizens of a portion of its territory, arising out of an insurrection, does not of itself inaugurate martial law .in such territory, nor does the proclamation thereof by the Governor put it in operation. Nor does the fact, nor the proclamation nor both afford any constitutional basis for a proclamation of martial law in such territory, unless nor until a military force is put .into the field for administration and enforcement thereof, (p. 716).</p> <p>3. Same — Governor Gannot Enforce Martial Law by Means of Civil Authorities.</p> <p>In such case it is not within the constitutional power of the Governor to inaugurate and enforce martial law within such territory, by means of the civil authorities acting under tlie direction of liimself and a military officer sent into it by him for tbe purpose. A mere military coloring of administration is insufficient, (p. 716).</p> <p>4. Same — Sections 5 to 9 Inclusive, Chapter H of the Codej Operative Only in Time of Actual War.</p> <p>Sections 5 to 9, inclusive, of cb. 14 of tbe Code, are operative only in a time of actual war, and, under them, citizens cannot be arrested and detained, except1 in tbe time of sucb war, for acts not constituting offenses under tbe civil law, tbougb prescribed and forbidden by executive regulations, rules and orders set forth in proclamations of war and martial law. (P. 719).</p>