Volume 89 — West Virginia Reports

<p>Original jurisdiction.</p> <p>Application for writ of Prohibition in State ex rel. D. F. Workman against John M. Anderson, Judge of the Criminal Court of Raleigh County.</p>

Case certified from Circuit Court, Wood County. Action by the Cook Pottery Company against J. H. Parker & Son. Rulings permitting the filing of special pleas of set-off and of a notice of recoupment tendered, by defendants, certified for review.

<p>1. Curtesy — A Tenant hy Curtesy Not Made a Party to Summary Sale of Ward’s Lands Through Special Commissioner, hut ■ Joining in Deed After Confirmation Not Knowing of Ais Curtesy May Assert Such Interest in Guardianship Funds.</p> <p>In statutory summary proceedings to sell, first, the mineral in, and, afterwards, the surface of lands belonging to infants, in which it is stated that the wards are the sole owners and that the rights of no other person will be affected by the sales, and mineral and surface are so sold for full value agreed upon by the guardian and purchaser before the proceedings are begun, and so ascertained and decreed by the court, and the father of the infants, who is tenant by the curtesy in the lands, is not made a party to said summary proceeding, but after sale is made and confirmed and deed through special commissioner is directed, he joins in the deed to the purchaser, he is not thereby precluded from asserting and receiving his curtesy interest in the funds in the hands of the guardian; although when he joined in the deed he believed that he had no curtesy or other interest in the land. (p. 20).</p> <p>2. Same — Tenant’s Blight in Funds of Which he was Guardian Held Hot Barred hy Limitation and Laches.</p> <p>In such case, the guardian and tenant by thei curtesy being one and the same person, the tenant by the curtesy is not estopped from asserting Ms curtesy interest in the funds in his hands as- guardian, upon settlement of his guardianship accounts with one of his children when she has become 21 years old, under the doctrine of limitation and’laches, it appearing that no loss of evidence, no changed conditions, and the rights of no other person have intervened, (p. 23)..</p> <p>3. Same — Father and Guardian of Children Not Precluded From Asserting Bight of Curtesy Against Fund for Sale of Land.</p> <p>Ignorance of the father and guardian of his right of curtesy at the time of the sales and his consequent failure to then assert and have the same judicially determined, -being a mistake of fact will not preclude him from asserting his right against the fund upon final settlement, there being no judicial admission nor judicial finding in the summary proceedings that he does not have such curtesy. (ip. 27).</p> <p>(Ritz, President, dissenting.)</p>

Case Certified from Circuit Court, Kanawha County. Action by the George Washington Life Insurance Company against Cecelia M. Jayne and another, in which E. B. Stephenson and others intervened, and their demurrer to the petition was overruled, and they were ruled to answer and the case certified.

Original application by the State, on the relation of Lavinia T. Travis, for a writ of mandamus against Haymond Maxwell, Judge, and others, to require the court to make a reasonable allowance for expenses while prosecuting a suit against petitioner’s husband, R. A. Travis, for separate support and maintenance.

Case Certified from Circuit Court, Tyler County. Suit by W. H. Carter against George B. Monteith. and others. Motion of named defendant to dismiss was overruled, .demurrers of certain defendants for misjoinder were sustained, and suit dismissed as to them and the case certified.

Certified from Circuit Court, Wetzel County. Bill by Waitman H. Conaway against Raymond D. Over-bolt, executor, and others, for enforcement of vendor’s lien. Demurrer to bill overruled, and case certified for review.

<p>Case Certified from Circuit Court, Cabell County.</p> <p>Action by Deo Jimerson against Ralph Tincher, in detinue, demurrer to declaration, and motion to quash summons overruled, and case certified.</p>

Case Certified from Circuit Court, Barbour County. Bill for the specific performance by Florence Bartlett and others against Elizabeth Johnson. Demurrer to bill overruled and case certified.

<p>Certified from Circuit Court, Barbour County.</p> <p>Suit by Ora A. Leacb against Alva D. Weaver and others. Demurrer to bill overruled, and case certified.</p>

<p>1. Appeal akd Error — Amount Sued for Held Amount in Controversy Notwithstanding Verdict.</p> <p>Where a demurrer is overruled and the jury, on the issue, finds a verdict of $100.00 for plaintiff, but, instead of entering a judgment thereon and disposing of a motion for a new trial, the court certifies its action on the demurrer to this court for review, the amount in controversy is the sum sued for, and this court will take jurisdiction upon the question certified, (p. 57).</p> <p>2. Mines and Minerals — Deed to Minerals in Place loith Mining Privilege, without Words Waiving Subjacent Support, Not Construed to Protect Tendee Against Damages From Removing. Coal.</p> <p>A deed to coal and minerals in place containing privilege of mining and removing, without words in either the granting clause or mining provision indicating an extinguishment or waiver of the right of subjacent support to the surface in case the coal is mined and removed, will not be construed to protect the vendee against damages to the surface caused by the mining and removal of the coal. (p. 59).</p> <p>3. Same — Conveyance of Minerals with Mining Right with Covenants of General Warranty Does Not Extinguish Vendor’s Right to Subjacent Support.</p> <p>A conveyance of coal and all minerals, with the right of mining and removing said coal and all minerals, with covenants of general warranty of the coal and other minerals, does not evince the extinguishment of the right of the vendor to subjacent support to protect the surface of the land in its natural state in the event of the removal of the coal. (Distinguished from Griffin v. Coal Co., 59 W. Va. 490). (p. 59).</p> <p>(Lynch, Judge, absent).</p>

<p>Case Certified from Circuit Court, Monongalia County.</p> <p>Action by H. W. Vansenden against Raymond E. Kerr. Demurrer to declaration sustained, and case certified.</p>

Case Certified from Circuit Court, Cabell Couuty. Action in assumpsit for goods sold by the Van Raalte Company against the Solof Brothers Company. Plea of set-off stricken, and case certified.

Certified from Circuit Court, Wetzel County. Action by Ross J. Winning, as executor of tbe estate of Edward D. Winning, deceased, against the Silver Hill Oil Company and others. Demurrer to petition by executor sustained, and cause certified.

•Action by H. W. Depue, as administrator of tbe estate of Fred M. Depue, deceased, against Flem Steber and another, in detinue before a justice of the peace, in which a judgment was rendered for the plaintiff and an appeal taken to the circuit court where, on second trial, judgment was for the defendant, and plaintiff brings error.

Case certified from Circuit Court, Roane County. Holl Miller was indicted for violation of the prohibition .law. The demurrer to the indictment was overruled, and the case certified.

<p>Petition by the State, on the relation of L. S. Bowen, for a writ of prohibition against R. C. Kirk, Justice of the Peace, and others.</p>

Case Certified from Circuit Court, Grant County. Action in trespass on tbe case by Milford Jesse Idleman against John Groves, for damages for abduction of a minor child. Demurrer to declaration sustained, and cause certified.

Certified from Circuit Court, Barbour County. Amanda Belle Snyder was indicted for a felony for marrying within tbe time in which she was forbidden to marry by a divorce decree under Code 1918, c. 64, § 14 (Code Supp. 1918, § 3648a). Defendant’s demurrer to and motion to quash the indictment were overruled, and the court certified its action for review.

<p>Error to Circuit Court, Ohio County.</p> <p>Action by the National Metal Edge Box Company against The Hub. Verdict and judgment for plaintiff, and the defendant brings error.</p>

Action by Jerry J. Hastings against James F. Gump and others. Defendant Gump’s motion to quash a notice for judgment against him as indorser on a note overruled, and he brings error.

Suit for enforcement of tbe lien of a decree by Tina V. Brown and others against Ruie Edna Erwin and others, and from a decree in favor of the plaintiffs the defendants appeal.

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Andrew Trobie against the Riter-Conley' Company. Judgment for plaintiff, and the defendant brings error.</p>

Action by the Old National Bank of Waupaca against the People’s Bank of Harrisville. Directed verdict for defendant, and judgment of nil capiat, and plaintiff brings error.

Action by Julia Israel Lamp and others against John T. Locke and others. Prom a decree awarding plaintiff a mandatory injunction and another decree refusing to reverse the first decree for alleged errors, certain defendants appeal.

<p>Fraudulent Conveyances — Bill to Annul Fraudulent Deed, Made to Defeat Judgment Lien, Held Sufficient.</p> <p>A bill to set aside and annul a voluntary and fraudulent deed wbich charges with reasonable certainty a live'judgment in favor of plaintiff and against the grantor, rendered prior to such deed, and that in order to defeat the collection thereof the grantor and grantee and those holding under him combined and conspired together and executed and recorded such deed, without any consideration therefor deemed valuable in law; and which hill prays that such deed he annulled in so far as plaintiff's judgment is concerned, and the real estate sold in satisfaction thereof, and for general relief, is sufficient, and a demurrer thereto should he overruled.</p>

Action by Austin Downs against Effa L. Downs and others. Prom a decree cancelling deed as a cloud on plaintiff’s title, the defendants appeal.

Suits by the Jackson County Bank against the First National Bank of Reedy and others and by the First National Bank of Reedy against C. C. Brotton and others, in which the Jackson County Bank and J. H. Smith, its trustee, intervened. The suits were consolidated, and from a decree therein the interveners appeal.

Suit by I Earl Fog'gin against H. R. Furbee revived upon bis death against Sarab J. Furbee, bis executrix, and others. From a decree of perpetual injunction, defendants appeal.

<p>1. Cbiminai. Law — Form of Oath Administered to Jury Need Not he Entered on the Record.</p> <p>It is not necessary that the form of the oath administered to the jury in a felony case should be entered on the record. It is sufficient if the record shows that the jury was duly sworn, (p. 191).</p> <p>2. Same — Effect of Recital that Jury was Duly Sworn in Order Empanelling it.</p> <p>A recital in the order impanelling the jury in a felony case that the jury was duly sworn will not he overcome hy another recital attempting to give the effect of the oath administered, which indicates a failure of full compliance with the form of oath usually administered in such cases, (p. 191).</p> <p>3. Venue — In Criminal Case May Be Proven hy Other Than Direct Testimony.</p> <p>The venue in a criminal case need not be proven by direct testimony. When the facts proven show that the crime could not have been committed in any other county than that named in the indictment the venue is sufficiently proven, (p. 193).</p> <p>4. Same — Judicial Notice will he Taken of Location of Oity of Huntington.</p> <p>Judicial notice will be taken of the fact that the city of Huntington, West Virginia, is in the county of Cabell, and'is the county seat thereof, (p. 193).</p> <p>5. Evidence — That Persons Heard Outcries Coming from House of Defendant Indicating Severe Castigation Admissible Where Basis of Prosecution is Successive Assaults Upon a Child of Tender Years.</p> <p>Where the basis of a prosecution is successive assaults inflicted upon a child of tender years, evidence of persons that, within a few days prior to the last assault which resulted in the arrest of the defendant, they heard, coming from the house of the defendant, outcries indicating that the child was being severely castigated, and heard what they took to be the defendant’s voice in connection therewith is admissible, and the fact that some of the witnesses, who testified to these occurrences may not have distinguished the defendant’s voice does not render their evidence inadmissible, where it appears that other witnesses who heard the same occurrences did recognize the deféndant’s voice in connection therewith, (p. 193).</p> <p>6. Maiming Defined.</p> <p>To maim means to violently inflict a bodily injury upon a person so as to make him less able to defend himself or annoy his adversary, (p. 195).</p> <p>7. Instruction — Defining Technical Terms Used in Indictment Should be Given.</p> <p>In the trial of a criminal case, where technical words are used in charging the defendant with the offense, the court, upon request, should define such technical terms to the jury, but it is not error to refuse an instruction attempting to define such a technical term when the definition given is not accurate, (p. 195).</p> <p>8. Felonious Assault — Jury May Find Stepfather was Actuated by Malice in Prosecution for Committing Felonious Assault Upon Six-year Old Stepson.</p> <p>In a prosecution against a stepfather for committing a felonious assault upon his six-year old stepson, if it is shown that the treatment to which such stepson had been subjected was such as to result in serious bodily injury to him, the jury may from that fact find that the punishment inflicted was in excess of that which the law contemplates, and may also find from the same fact that such stepfather was actuated by malice, as well as that he acted with a criminal intent, (p. 197).</p> <p>9. Evidence — Underclothing and Bandages Found in Bed of Child as Evidence in Prosecution of Stepfather for Assaulting Such Child.</p> <p>In a prosecution against a stepfather for assault upon his stepson the child’s underclothing found in the bed from which the child was removed by officers arresting the father, as well as bandages therein found which apparently came from the legs of such child, are properly admitted in evidence, even though the. witnesses di’d not notice these articles at the time' they removed the child, but upon their return, later the same day. discovered and removed them. (p. 198).</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by Cora E. Fisher against May H. Fisher and another. Judgment for plaintiff, and defendants bring error.</p>

Case certified from Circuit Court, Monongalia County. Suit by Mildred Bobbs, by, etc., against the Morgantown Press Company, for personal injuries. Demurrer to third count of declaration sustained and at plaintiff’s request and on its own motion the circuit court certified the ease for review.

<p>Appeal from Circuit Court, Cabell County:</p> <p>Suit by John S. Farr against J. S. Weaver. Decree for plaintiff and defendant appeals.</p>

Suit by the Malleable Coal Company against James Potter and others, and from a decree dissolving an injunction inhibiting the defendant Roman Pickens from interfering with the operation of a railway, plaintiff appeals.

<p>1. INSURANCE — Insurer, by Unconditional Delivery and Giving Credit lor Premium, Waives Policy Provision Against Liability Before Actival Payment.</p> <p>An express provision in a policy of life insurance tliat tlie insurer shall not be liable thereon until the premium is actually paid, may -be waived by the unconditional delivery of the policy to the insured as a complete and executed contract under an express or implied agreement to give credit for the premium, or for a part thereof, and in such case the insurer is liable in case of the death of the insured before the expiration of the time given for payment, (p. 225).</p> <p>2. Same — Circumstantial Evidence to Establish Suicide Must Exclude Every Other Reasonable, Hypothesis.</p> <p>Where in a suit on a policy of life insurance the defendant relies upon a provision of the policy defeating recovery if the insured dies from suicide, while sane or insane, within two years from the date of the policy, the evidence to show that the insured’s death was suicidal must he clear and satisfactory, and where circumstantial evidence is relied upon for such purpose, such circumstances must establish that death resulted from suicide to the exclusion of every reasonable hypothesis consistent with death from natural causes. (p. 226).</p> <p>3. Same — Life Policy Held Void for Insured’s Misstatement as to Previous Injury.</p> <p>A policy of life insurance issued upon an application in which is contained a representation by the insured that he ■had never had any illness, injury, or disease, will be rendered void upon a showing 'that the insured, prior to the time of making the application, had suffered an injury resulting in the loss of one of his feet. (p. 227).</p> <p>4. .Same — Life Policy Void for Misrepresentation in Application as to Having Been Refused Insurance.</p> <p>A policy of life insurance issued upon an application in which is contained a representation by the insured that he had never applied to a company or agent for insurance without receiving a policy of the exact kind and amount applied for, wiill be rendered void where it is shown that the insured had in fact applied to other companies for life insurance, and that such other companies had refused to issue the same. (p. 228)'.</p>

Original proceeding by tbe State, on the relation of E. C. Hatfield, against W. A. Farrar, Mayor, for peremptory writ of mandamus to restore relator to the office of Chief of Police of the City of Williamson.

Suit by Victoria T-=- Vickers against B.. E. Vickers, for maintenance. From a decree állowing a monthly maintenance, and a further order allowing counsel fees in a divorce suit formerly pending, the defendant appeals.

Action by the Board of Education of the District of Town, Raleigh County, against J. W. Dunkley for unlawful de-tainer. Verdict and judgment in favor of the defendant, and plaintiff brings error.

<p>1. Sales — Written Offer to Purchase Lumber Does Not Become Contract Until Accepted.</p> <p>An offer in writing to purchase lumber to be manufactured and delivered by the offeree, not signed by Mm, does not become a contract until be accepts it. (p. 257).</p> <p>2. Same — Acceptance Need Not be Actual, But is Inferable from. Conduct.</p> <p>Acceptance to enlarge such an offer into a contract need’ not be actual, it may be inferred from the acts and conduct of the offeree in respect thereof, (p. 257).</p> <p>3. Same — Shipment of Lumber Pursuant to Offer.</p> <p>A partial and reasonably prompt' shipment by the offeree of more than-half of the quantity and quality of lumber purchased for delivery, and delivered to and accepted by the of-feror, pursuant to the terms an'd conditions of the offer, amounts to an acceptance by the offeree, (p. 260).</p> <p>4. Frauds, Statute of — Performance of Part of Offer of Sale Stelcl Not Sufficient to Obviate Inhibition of Statute.</p> <p>Performance in part of an offer to purchase lumber to be manufactured and delivered by the offeree as required by the offer, when not signed by the offeree, is not sufficient to obviate the inhibition of the statute of frauds, clause 7, chapter 98, Code. (p. 259).</p> <p>5. 'Same — Contract in Writing Not Signed as Required Not Inhibited Unless it Appears Therefrom That it Does Not Permit of Performance Within Tear.</p> <p>Clause 7, chapter 98, Code, does not inhibit an action based on a breach of a contract in writing, not signed by defendant, as therein specified, unless it should appear from the terms and conditions thereof that the contract does not admit of performance within a year from its date. (p. 258).</p> <p>6. Same — Written Offer to Purchase Lumber Held Not Within Statute.</p> <p>Where a written offer bearing date in October, to purchase lumber of a prescribed quantity and quality to be manufactured by the offeree in the ensuing winter months for delivery during the following summer, it is not within the inhibition of clause 7 of the statute of frauds, chapter 98, Code. (p. 258).</p> <p>7. Sale — Evidence of Acquiescence in Delay Held Competent in Action for Breach.</p> <p>Where a contract for the purchase of lumber to be manufactured and delivered by defendant within the time and upon the terms and conditions therein specified is breached by him a few years after the expiration of. the time limit, each of the parties thereto acquiescing in the delay during such period, the statutory limitation not applying and plaintiff, though diligent, was unable to purchase lumber of the hind and character prescribed in the contract within the year the breach occurred, for delivery that year, but could and 'did purchase it for delivery the next year, the evidence showing the facts to be as stated was competent .and justifiable, (p. 263).</p> <p>8. Frauds, Statute of — Postponement of Completion Acquiesced in Does Not Prevent Plaintiff’s Suing for Breach, Where Pull Performance within Year was Possible.</p> <p>Postponement of tlie completion of a contract concurred and acquiesced in by the parties thereto does not affect the right of the plaintiff to sue for its breach, where full performance within a year from its date was possible, and the parties contemplated compliance within that time. (p. 263).</p> <p>9. Continuance — Defendants Motion Because of Amendment of Declaration toas Properly Rejected Where Not Showing How he Might be Prejudiced.</p> <p>A motion for a continuance, predicated upon an amendment of a declaration to admit proof introduced by plaintiff during the early stages of the trial, properly is rejected where defendant, although objecting to the amendment, proceeds with the trial without showing in what respect, if at all, he is likely to be prejudiced by a continuation of the trial thus begun, (p. 266).</p> <p>10. Contracts — Where Evidence is Conflicting as to Existence of Contract, Question is for Jury.</p> <p>Where plaintiff affirms and defendant denies the existence of a contract binding upon both of them, and each introduces evidence upon that phase of the controversy, consisting of letters and acts and conduct of the parties pertaining thereto, thereby producing a conflict, the question of the existence of such contract is for the jury to determine, and an instruction submitting that question to them for determinátion is not erroneous when properly prepared, (p. 267).</p>

Action by Carl E. Williamson against Walker D. Hines, Agent, etc., for personal injuries. Judgment for plaintiff, and the defendant brings error.

Action by Sante Del Signore against John Barton Payne, Director General of Railroads, begun in the justice court. •The circuit court directed verdict and judgment for defendant. Plaintiff’s motions to set aside the verdict and for new trial were denied, and he brings error.

<p>Error to Circuit Court, Grant County.</p> <p>Pete Weissengoff was convicted of involuntary manslaughter and sentenced to imprisonment in the county jail, and t<? pay a fine, and he brings error.</p>

<p>Appeal from Circuit Court, Calhoun County.</p> <p>A suit by Sallie M. Bennett and others against the Inter-state Cooperage Company, and suits by Ursley J. Offut, by E. L. J. Smith, by Elliott Chenoweth, by H. E. Crawford, by Charles Laughlin, by R. B. Eisman, and by W. T. Crawford, against C. N. Snodgrass and others, in each of which "there was a decree for the plaintiffs, and the defendants appealed. The suits were considered together.</p>

<p>1. Indictment and Information — Indictment Not Quashed Where Grand Jurors Were Selected as Statute Required at Levy Term.</p> <p>Prior to the legislature of 1919, the county court was required to prepare annually a list of grand jurors and deliver same to the clerk of the circuit court at its levy term which begins on the 2nd Tuesday in August and by operation of law is adjourned until the 4th Tuesday in that month, at which the levy must be laid as provided in sec. 2, chap. 28A, Barnes Code, 1918; and an indictment found and returned by grand jurors properly selected from such list so prepared either at the session begun on the 2nd Tuesday in August, or at the adjourned session begun on the 4th Tuesday of that month, should not be quashed for the alleged reason that such list was not prepared and delivered at the levy term. (p. 305).</p> <p>2. Homicide — In Prosecution for Attempt to Murder, Instruction as to Guilt of Party Watching to Prevent Surprise of Those Doing the Shooting Held Sufficient.</p> <p>An instruction given in a trial on an indictment for felonious attempt to kill, instructing the jury in effect, that if ■they believe from the evidence that the defendant, and others jointly indicted with him, all or any of them being armed with guns, went within shooting distance of a mine tipple and cage then used for bringing men out of the mine and 'did, on a day named, lie in wait until certain persons named in the indictment came out of the mine in such cage, and that such other persons jointly indicted with defendant, or any of them, did then and there shoot with such guns at the persons coming out of the mine in such cage, with felonious intent then and there to kill-them, or any of them, and that defendant was then and there present or within about three hundred yards of such persons jointly indicted and watching to prevent surprise while such other persons were committing the offense, or with intention of giving assistance, should occasion arise,- to such other persons and was near enough to do so, then the defendant would be guilty of an attempt to commit murder in the first degree, sufficiently states a concerted design between defendant and those actually doing the shooting; and sufficiently states that defendant, by “watching to prevent surprise,” was participating in the murderous intent, (p. 307).</p> <p>3. Criminal Law — Abstract Instruction Improper But will Not 'Require Reversal Unless it Has Misled Jury.</p> <p>An instruction which propounds an abstract proposition of law should not be given, but if given and there be evidence to which it is applicable, the appellate court will not reverse for that cause unless it is clear that the jury has been misled, (p. 309).</p> <p>4. Same — Instruction Correctly Defining Statutory' Offense is Not Reversible on Theory of Assuming Facts not Proven.</p> <p>The giving of an instruction which correctly states a definition of a statutory offense for the violation of which defendant is indicted and being tried, is not reversible error on the theory that it assumes facts not proven, and thereby invades the province of the jury. (p. 309).</p> <p>5. Homicide — Instruction That Verdict Must be Guilty of Attempt to Murder or Not Guilty, Proper, Where Lesser Offense Barred by Limitation.</p> <p>An instruction given in the trial of an indictment charging defendant with a felonious attempt to kill, “that under the law and the evidence in this case that they (the jury) can return only one of two verdicts; Guilty of an attempt to commit murder in the first degree, or not guilty,” is properly given where the evidence is conclusive and uncontradicted that the offense, if any, was committed on the 16th day of November, 1917, and the indictment was not found and returned until the March, 1919,-term of the court; as all offenses lesser than attempt to commit murder in the first d'e-gree have been barred by limitation before the finding of the indictment, (p. 310).</p> <p>6. Criminal Lav — Court May Permit Attorneys Employed to Assist Prosecutor to Continue Trial in Absence of Prosecutor.</p> <p>Under sec. 7, chap. 120, Code, 1918, competent attorneys may be employed by any person to assist the prosecuting attorney in the prosecution of any person charged with crime; and if in the progress of a trial the prosecuting attorney is compelled by sickness or other valid cause to he absent from the trial, it is not error for the court, without objection on the part of defendant, to permit the attorneys so employed to proceed with the trial and prosecute the same to conclusion, unless it clearly appears that defendant was prejudiced thereby. (p. 311).</p> <p>7. Jury — Juror Held Competent Although Stating That He Bid Not Think Much of Labor Unions, Where Defendant Be-longedto One.</p> <p>A juror who on his voir dire says that he has no bias or prejudice against defendant because such defendant is an Italian, or is and was a member and officer of a labor organization at the time of the alleged offense, and that he could render a fair and impartial verdict from the evidence, regardless of the nationality of defendant or of the fact that he did or di'd not belong to a labor union, is á competent juror, although he also says that he “didn’t think much of labor unions,” and did not believe that labor unions were very conducive to law and order, (p. 312).</p>

<p>Appeal from Circuit Court, Grant County.</p> <p>Bill by Jonathan Bryan against the Fairfax Forest Mining & Manufacturing' Company and others, for enforcement of liens created by decrees in a former suit. From a decree for plaintiff, defendant William C. Bond appeals.</p>

<p>1. Receivers — Railway Company’s Creditor Whose Claim was Secured Along With Others Held Not Entitled to Preference for Furnishing Labor and Materials.</p> <p>The claim of a creditor of a railway company, secured along with its other general debts, by a deed assigning all of its property to trustees to secure ratable payment o£ all of its debts, and not otherwise expressly secured, is not entitled to priority or preference over such other debts, in the distribution of a fund arising from sale of such property, even though such claim may have arisen out of the furnishing of labor and materials for necessary use in the operation of the company’s railway, in the absence of establishment of a diversion and payment of net earnings of the company to such other creditors or the holder of some other lien on such property, (p. 323).</p> <p>2. Same — Railway Company’s Prior Operation Debt is Not Part of Receivership Expenses.</p> <p>A debt so incurred by a railway company, before the appointment of a receiver in a suit brought to wind up its business, is not a part of the expenses of the receivership, (p. 325).</p> <p>3. Appeal and Error — Ohancery Commissioner’s Findings Not Excepted to Below Cannot be Assailed on Appeal.</p> <p>A finding of a commissioner in chancery, set forth in his report and not excepted to in the court below, cannot be assailed in the appellate court, by an assignment of error, unless the report is erroneous on its face, as to it. (p. 325).</p> <p>(Miller, Judge, absent).</p>

<p>1. Justices of the Peace — Judgment Not Void for Recital That Olaim was in Excess of Jurisdictional Amount Where Rendered for Less.</p> <p>A judgment of a justice for less than three hundred dollars rendered upon a trial before such justice, in which there was no defense made, will not be held void for lack of jurisdiction because there is a recital that the plaintiff’s claim was for an amount in excess of three hundred dollars. It will be presumed that there were admitted off-sets which reduced the claim to the amount for which the judgment was rendered, (p. 331).</p> <p>2. Evidence — Certified Transcript is Prima Facie Evidence of Judgment.</p> <p>A transcript of the record of a judgment from the docket of a justice of the peace, certified as provided by law, is prima facie evidence of such judgment in any preceding where it becomes necessary to prove the same. (p. 332).</p> <p>3. Same — Transcript of Judgment by Other Justice Must Show Sim Successor of One Rendering Judgment or Having Lawful Custody of Docket.</p> <p>Where the transcript of a justice’s judgment is relied upon as proof of the same, and is certified by a justice other than the one who rendered the same, the certificate must show that the justice so signing it is the successor of the one who rendered the judgment, or is the person having lawful custody of his docket, or these facts must appear from some competent evidence in the case. (p. 3331.</p> <p>4. Corporations — Corporation’s Answer Should be Signed by President with Corporate Seal Affixed.</p> <p>The answer of a corporation should be signed by its president with its corporate seal affixed, (p. 334).</p> <p>5. Equity — Defendant Could Rely on Denial in Answer, Although Exception to Answer Should Not Have Been Overruled.</p> <p>Wihere, in a suit brought to enforce a judgment of a justice, the defendant, a corporation, files an answer denying the existence of such judgment, to the filing of which the plaintiff objects and excepts because the same is not signed by the president of such corporation, and does not have its corporate seal affixed thereto, which objection and exception is overruled and said- answer filed, and a decree rendered in favor of the plaintiff establishing the validity of the alleged judgment without competent proof thereof, such decree cannot be upheld upon the ground that the court should have sustained the objection to the filing of said answer, and the exception thereto. The defendant filing such an answer under such circumstances may rely on the denial therein contained, (p. 334).</p> <p>6. Same — On Sustaining Exception to Answer as Not Properly Authenticated, Leave Should he Given to File New Answer.</p> <p>Upon sustaining an exception to an answer because the same is not properly authenticated, leave should be given to file a new answer authenticated in the manner required by law. (p. 334).</p> <p>7. Judgment — Judgment Not Barred So Long as Right to Sue Out Scire Facias to Revive Same Remains.</p> <p>Á judgment is barred by the Statute of Limitations, and not by the equitable doctrine of laches, and so long as the right to sue out an execution exists, or there is a right to sue out a scire facias to revive the same, the judgment is not barred, (p. 334).</p> <p>8. Same — Holder of Judgment Lien Subject to Vendor’s Lien not Barred From Asserting Judgment Against the Judgment Debtor Because Not Setting up Same in Suit to Enforce Vendor’s Lien.</p> <p>'The holder of a judgment lien upon real estate, subsequent in time to a vendor’s lien against the same, will not be barred from asserting such judgment against the judgment debtor because he did not set the same up in a suit to enforce the vendor’s lien. (p. 334).</p> <p>9. Same — Before Decreeing Sale in Creditor's Suit, Court Should Ascertain if Rents, Issues and Profits Wlill Not Pay Lien.</p> <p>In a lien creditor’s suit, before decreeing a sale of the real estate of the defendant debtor, the court should ascertain that the rents, issues and profits will not pay off the liens against such real estate within five years, (p. 335).</p> <p>10.Same — In Suit to Enforce Lien any Party Holding Lien May File Petition Without Being Made Formal Party.</p> <p>In a lien creditors’ suit any party holding a lien upon the lands sought to be subjected may file a petition asserting such lien without being made a formal party to such suit, and he may do this for the purpose of showing that an apparent lien in his favor has been discharged, (p. 336).</p> <p>11. Same — When Holder of Apparent Lien Files a Pleading in Lien Creditor’s Suit, Averring Satisfaction, the Court Should Hot Dismiss Him But Decree Satisfaction and Provide for Release.</p> <p>When the holder of an apparent lien against real estate, which is sought to be subjected to sale in satisfaction of the liens against it, files a pleading in such suit averring that' the lien in his favor has been fully satisfied and discharged, the court should not dismiss such party from the suit, hut should decree such lien satisfied and provide for the execution of a release thereof. (p. 336).</p> <p>12. Justices of the Peace — Judgment Hot a Valid Lien Prior to Docketing in County Clerk’s Office.</p> <p>A judgment of a justice is not a valid lien upon real estate conveyed by the judgment debtor to a bona fide purchaser prior to the docketing of such judgment in the office of the clerk of the county court in which such real estate lies. "(p. 337).</p> <p>13. Judgment — Entry of Judgment in Lien Docket in County Clerk’s Office Must he Sufficiently Full and Accurate to Inform Intending Purchasers to Constitute Lien on Real Estate.</p> <p>The entry of a judgment upon the judgment lien docket in the office of the clerk of the county court must he sufficiently full and accurate to inform intending purchasers or other interested parties of the facts which it is essential for them to know, and such that a reasonably careful search in the particular quarter indicated will not fail to disclose the judgment. (p. 338).</p> <p>14. Same- — Clerical Error in Entry of Justice Court Judgment upon County Clerk’s Lien Docket Will Hot Render it Void Where Furnishing Sufficient Hotice to Purchasers.</p> <p>A clerical error in the entry of a judgment upon the judgment lien docket in the office of the clerk of' the county court, showing its rendition upon a date slightly different from the date of its actual rendition, will not render such docket entry void, where -it appears that the matter contained in the entry upon the judgment lien docket is sufficient to fully inform an interested party of the facts necessary for his protection, (p. 338).</p> <p>15. Same — In Lien Creditor’s Suit Where Plaintiff’s Judgment is the Only Lien on Land, it is Proper to Decree Sale Without Referring to Commissioner to Audit Liens.</p> <p>Where, in a lien creditor’s suit, it appears that the plaintiff’s judgment is the only lien against the real estate, and the amount thereof is clearly ascertainable from th© proof introduced, it is not error to decree a sale of such real estate in satisfaction of such lien without referring the cause to a ommissioner to audit the liens, (p. 338).</p> <p>(Mdli.ee, Judge, Absent).</p>

<p>1. Appeal and Error — Trustee Holding Legal Title May Prosecute When Right of His Gestui Qtoe Trust are Affected.</p> <p>A trustee holding the legal title to lands, or an interest in lands, has the right to prosecute an appeal írom a decree affecting the rights of his cestui que trust, (p. 341).</p> <p>2. Injunction — Interest of Plaintiff as Affecting Grant of.</p> <p>An injunction will not be granted where it appears that the interest of the plaintiff which is sought to be protected is very remote, and almost beyon’d the realm of possibility, and that to grant the relief would inflict great hardship upon the parties against whom it is sought, (p. 342).</p> <p>(Miller, Judge, Absent).</p>

<p>1. Bills and Notes — Valuable Consideration Need Not be Averred or Proved.</p> <p>In a suit upon a promissory note it is unnecessary to aver or prove that a valuable consideration therefor passed to the maker. The note itself imports a valuable consideration, (p. 346.)</p> <p>2.' Same — Bank Assignment of Past Due Notes to Directors and Stockholders Responsible for Their Purchase or Discount is Sufficient Consideration for Their Notes Reimbursing the Bank.</p> <p>The assignment by a bank of past due notes to directors and stockholders thereof responsible for the purchase-or discount thereof by the bank, constitutes a valuable and sufficient consideration for the individual notes of such directors and stockholders executed to the bank for their pro rata shares of the past due paper so assigned, (p. 347).</p> <p>3. Banks and Banking — Banks Transferring Notes to Directors and Stockholders is Valid and Binding Without Minutes Being Kept.</p> <p>The validity of such assignment by a bank to its directors and stockholders, made in good faith, does not depend upon whether or not any minute'of the meeting of the directors at which such action or transaction took place was kept. If the directors were present and acted, their action was as valid and bidding without a minute as if one was kept, for the fact of their action may - be proved by any other competent evidence. (p. 350).</p> <p>4. Same — Written Assignment of Paper by a Bank’s Cashier to Directors and Stockholders Pursuant to Directors’ Order Held Assignment in Due Course.</p> <p>Such an assignment in writing of a part of the paper of a bank by the cashier thereof pursuant to such action of the directors, should be regarded as an assignment M due course and binding on the corporation, (p. 350).</p> <p>5. Same — Cashier Has General Authority to Indorse Negotiable Paper.</p> <p>The cashier of a bank has general authority to transfer by endorsement negotiable paper, and no special authority for this purpose is necessary, (p. 351.)</p> <p>6. Appeal and Error — Party Challenging Correctness of Judgment on Motion to Set Aside Demurrer to Evidence May Avail Himself of all Adverse Rulings.</p> <p>Whether a party demurring to the evidence of the other waives his exception to the rulings of the court excluding some of his competent and legal evidence on an important issue, is mooted but not decided. If, however, he challenges the correctness of the judgment by a motion to set aside the demurrer and the verdict thereon as contrary to the law and the evidence, he may in this court avail himself of any errors in the adverse rulings of the court on the trial of the action, (p. 351).</p>

<p>Original proceeding in mandamus by the State, on the relation of C. E. Lively and others, against Hon. James French Strother, Judge of the’ Criminal Court of McDowell County, to require Lee Pendleton, official court reporter, to turn over a copy of the evidence and statements in his possession, taken upon an alleged investigation by court order and continued before the prosecuting attorney.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by James Wendell against John Barton Payne, Agent, and from a judgment therein, the plaintiff brings error.</p>

<p>1. Mechanics’ Liens — Public Property is Not Generally Subject to Mechanics’ Liens.</p> <p>As a general rule, public property is not subject to liens created by chapter 75, Code, 1918, such encumbrances being contrary to public policy. (p. 373).</p> <p>2. Same — If Allowed Upon County Property, May Injure Public.</p> <p>Such liens may, if permitted, effectually obstruct the transaction of the affairs of the county, to the injury of the public, (p. 373).</p> <p>3. Counties — Mechanics’ Liens Not Allowed Against County Courthouse and Jail for Labor and Materials Furnished by Sub-Contractor.</p> <p>The broad provisions of a mechanic’s lien law are not sufficient to authorize liens against a county court house and jail for labor employed, materials and equipment furnished by a sub-contractor, for which the contractor fails to pay him, according to the terms of the contract between them. (p. 373).</p> <p>4. Mechanics’ Liens — Legislative Intention to Allow Liens on Public Buildings Must be Expressed in Unmistakable Terms.</p> <p>Although the legislature in the exercise of its legitimate powers may, in a mechanic’s lien law, authorize the creation of and mode of perfecting liens on public buildings, it must clearly express its purpose to do. so in unmistakable and specific terms. (p. 373).</p> <p>5. Same — Statute Construed as Not Authorizing Liens on Publio Property.</p> <p>Chapter 6, Acts 1917; Chapter 75 Code 1918, does not, when properly construed as a whole, authorize, and apparently was not intended to authorize the creation of such liens on public property. (p. 377).</p> <p>6. Statutes — Are to be Construed as a Whole, So That Arrangement Into Parts or Sections is of No Moment.</p> <p>As a statute is to be construed in its entirety in order to 'determine its effect and meaning, its arrangement into parts or sections is of no moment, whether the parts or sections are in logical sequence or otherwise. (p. 377).</p> <p>7. Mechanics’ Liens — Different Section of Lien Statute Construed Not to Authorize Incumbrance of Public Buildings.</p> <p>The different sections of chapter 75, Code, properly considered and construed, do not authorize the encumbrance of buildings devoted to public use by mechanic’s or other like liens.- (p. 377).</p> <p>8. Same — Affected by Sale of Building So That Lien is Only Permissible When Clearly Authorized.</p> <p>Such liens are ineffectual except by a sale of the building encumbered by them, and as such a sale contravenes public policy,- it is permissible only as and when clearly authorized by- law. (p. 377).</p> <p>9. Cootties — County Court Held Not Liable for Neglect in Accepting Contract Without a Bond.</p> <p>A county court is not liable at the suit of an assignee of a mechanic’s lien creditor for its own neglect, or the neglect of its officers or agents, to perform a duty, such as the acceptance of a contract without a bond, when a bond is required, in the absence of a provision therein declarative of such liability. (p. 378).</p>

Wiley Evans and another were convicted of unlawfully transporting more than one quart of liquor within 30 consecutive days, and they bring error.

<p>Appeal from Circuit Court, Putnam County.</p> <p>Bill by M. T. Roberts and another against tbe Huntington Development & Gas Company. Decree for plaintiffs, and tbe defendant appeals.</p>

Action by J. F. Dillon against the Turkey Gap Coal & Coke Company for broker’s commissions for selling mining machinery. Verdict and judgment for plaintiff, and defendant brings error.

Action by Alex Colley, administrator, ag'ainst A. L. Calhoun. Verdict for plaintiff was set aside, a new trial awarded, and plaintiff brings error.

Suit by L. E. Tierney against the United Pocahontas Coal Company and others, in which a decree was modified and affirmed on appeal, and from a subsequent decree executing the former one by requiring payments of money by the United Pocahontas Coal Company and Worth Kilpatrick to L. E. Tierney and the Flat Top National Bank, the losing parties appeal, and the others assign cross-errors.

<p>Error to Circuit Court, McDowell County.</p> <p>Willard Murphy was convicted of murder in the second degree, and sentenced to the penitentiary, and he brings error.</p>

Action by Toney Camicia and others against S. M. Iafollo. Directed verdict and judgment for the defendant, and the plaintiffs bring error.

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Guy F. 'Waldron, as administrator of bis son, Philip Waldron, deceased, against the Garland Pocahontas Coal Company for damages for deceased’s death. Verdict and judgment for the plaintiff, and the defendant brings error.</p>

Two suits by the Nuttallburg Smokeless Fuel Company against the First National Bank of Harrisville and others, and one by the same plaintiff against the Pullman State Bank and others. Bills dismissed, and the plaintiff appeals. Suits considered together.

Action by John 0. Casdorph and others, as executors of Caleb Casdorph, deceased, against Walker D. Hines, Director General of Kailroads, for damages for the death of the deceased. Judgment for defendant, and plaintiffs bring error.

Action by Jordan L. Morris, administrator of the estate of Mary D. Huggins, deceased, and others, against William Hall and others, and from a decree setting aside and declaring null and void certain deeds, William Hall and certain other defendants appealed.

<p>Error to Circuit Court, Kanawha County.</p> <p>George W. Meadows was convicted of forging and uttering a forged instrument, and he brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Action by Alexander Nesben against E. F. Jackson. Judgment for plaintiff, and defendant appeals.</p>

Action by the Star Piano Company against C. C. Burgner, Default judgment for plaintiff, and from a judgment setting tbe same aside, the plaintiff brings error.

Action by the Indian Befinin'g Company against W. E. Chilton in the justice court, and upon appeal to the intermediate court of Kanawha county, a verdict was directed for the defendant, and on appeal therefrom, the circuit court refused to review said judgment, and plaintiff brings error.

Action by C. E. Pauley against A. A. Decker. Directed verdict and judgment for the defendant, and the plaintiff brings error.

<p>1. Cobbobatiows — Stockholders Whose Stock toas Issued as Fully Paid and Non-Assessable, Not to be Excluded from. Participating in (Corporation, or Required to Pay Par Talue.</p> <p>W¡here a corporation issues stock as “fully paid and non-assessable,” with the consent and participation of all the stockholders, and there is no charter, statutory or constitutional provision rendering the transaction void, the agreement is valid and binding as against the corporation, and it can not afterwards repudiate the agreement, and exclude the holders of the stock from participation in the company’s affairs, or compel them to pay the difference between the par value of the stock and what has been paid or agreed upon as ■full payment for it. (p. 499))</p> <p>2. Same — Agreement Whereby Leaser is Transferred to Corporation in Return for Entire Stock Given to Promoters as “Fully Paid and Non-Assessable” Held Binding on Corporar tion.</p> <p>Where a corporation is organized by promoters, who desire to take a mining lease on coal properties, but prefer that the lease be executed to the name of the corporation, rather than in their own names, and the corporation, in consideration of the lease, issues to such promoters its entire capital stock as “fully paid and non-assessable,” there being at the time no innocent incorporator upon whom the transaction might operate as a fraud, and no charter, statutory or constitutional provision rendering the transaction void, the agreement is valid and binding upon the corporation, and can not be questioned by it alone in a suit charging .that the stock had not in (fact been paid for. (p. 499).</p> <p>3. Same — Mayi Not Cancel Stock for Holder’s Failure to Pay Installment, but Must Foreclose Unless By-Laws Provide for Cancellation.</p> <p>If a stockholder of a corporation, other than a railroad company, fail to pay any installment due upon his shares of stock, when required to do so by appropriate corporate action, and the company desires to enforce its claim for such unpaid balance by a direct proceeding against the stock itself, instead of against the owner, it can not summarily cancel such stock, but must follow the foreclosure procedure prescribed by sections 29 and 30, chapter 53, Code, unless by a by-law the corporation has provided for the method of cancellation, (p. 500).</p> <p>4. Parties — Secretary-Treasurer Named as Defendant in Bfll Against Corporation Held Not Party in His Own Right.</p> <p>Though a secretary-treasurer of a corporation be named in a bill as defendant by his official designation, he does not thereby become a defendant in his own right, nor does he by the adoption of the corporation’s cross-bill answers to the bill, when neither the bill nor the answers show cause for relief in his favor or pray relief against him in his own right, (p. 5o3).</p>

Suit by the Abney Barnes Company and another against the Davy Pocahontas Coal Company and others, and from a decree therein the said coal company appeals.

Action by tbe Kingman Mills, a branch of tbe Kansas Flour Mills Company, against Noah C. Furner. Verdict and judgment for tbe defendant, and tbe plaintiff brings error.

Suit by James Flynn, trustee, and others against C. A. Yeager, trustee, and others. From a decree adjudicating plaintiff’s right to enforcement of an express trust in real estate and referring the canse to a commissioner for ascertainment of facts essential to final settlement, the defendant C. A. Yeager appeals.

Action by N. R. Sharp and others against Granville Campbell in a Justice’s Court, where plaintiffs prevailed, and upon appeal to the circuit court, there was a judgment for plaintiffs, and defendant brings error.

<p>1. Appeal and Error — Trial Court’s Ending on Conflicting Evidence Sustained.</p> <p>Sustained by facts and circumstances making probability of its correctness so strong that the contrary thereof cannot reasonably be supposed, the finding of a trial court, upon an issue as to which the oral evidence is itn irreconcilable conflict, will not be disturbed by the appellate court, (p. 534).</p> <p>2. Witnesses — Grantor is Competent to Testify to Agreement uHth Grantee and Her Deceased Husband, Who Paid the Purchase Money.</p> <p>In a suit against the grantee in a deed, for correction of an error therein, the grantor is competent to testify to the agreement with the grantee and her deceased husband, in pursuance of which the deed was made, notwithstanding payment of the purchase money by the husband and his participation in the transaction, (p. 534).</p> <p>3. Reformation of Instruments — In Suit to Reform, Deed, Plaintiff Will Not l>e Denied ReUef for Merely Constructive Fraud in Stating the Quantity.</p> <p>If, in such suit, it is ascertained and determined that, by mutual mistake in the execution, delivery and acceptance of such deed, land was included, which the vendors did not intend to sell nor the vendee to buy, relief will not be denied the plaintiffs 'because the bill or the evidence discloses an actual or possible liability on the part of the vendors in favor of the vendee, for compensation for injury occasioned by a false representation as to the quantity of the land actually sold and intended to be conveyed, amounting to a merely constructive fraud, (p. 534).</p> <p>4. Equity — In Favor of Defendant Calling for Denial of Relief to Plaintiff, Upon His Failure to Accord it, must he Embraced in the Particular Cause of Action.</p> <p>An equity in favor of the defendant, calling for denial of relief to the plaintiff, on his failure to accord it, must be embraced in and a part of the particular cause of action constituting the basis of the relief to which the plaintff is conditionally entitled, not one arising out of a different or collateral cause of action, even though both causes of action emanated from the same transaction, (p. 534).</p>

<p>1. Joint Tenancy — Where Joint Tenant Redeems From, Judicial Sale, Others May Redeem Their Interest by Paying Proper Part of Purchase Price.</p> <p>A purchase of the common property by one joint tenant at a judicial sale made to satisfy a lien against such property for which all of the joint tenants are hound, is for the benefit of all, and each may redeem his interest in the property by paying his proper proportion of the purchase price, (p. 544).</p> <p>2. Same — Where Joint Tenant, on Assignment of Vendor’s Lien, Sues and Purchases Land Under Execution, the Other May Redeem.</p> <p>"Where one of the joint owners of a tract of land, subject to a vendor’s lien which both of such owners are under obligation •to discharge, pays off such lien, and takes an assignment of the same to 'himself, and brings a suit in his own name as assignee of the vendor to subject the whole of the common property to sale in satisfaction of such lien, and at a sale decreed in such suit becomes the purchaser of such property,, he will be held to have made the purchase for the common benefit, and his co-owner may redeem his interest in such land by paying his proper proportion . of the purchase money, (p. 545).</p> <p>3. Same — Where Joint Tenant Sells Part of Common Property Purchased at Judicial Sale to Bona Fide Purchaser, Such Tenant Must Account to Co-Owner for Price.</p> <p>Where in such case the joint tenant, who purchased at the judicial sale, sells a part of such common property to a bona fid.e purchaser before any proceeding is instituted by the other interested party for the purpose of redeeming his interest therein, such purchaser will be protected, but such co-owner will be compelled to account for the purchase money so received .by him. (p. 547).</p>

<p>1. Weapons — Defendant Possessing Pistol Only to Examine at Invitation of Owner Hot Guilty of Carrying a Pistol.</p> <p>Upon the trial on an indictment for carrying a pistol, if it he shown that the defendant had the pistol in his possession only for the purpose of a casual examination, upon the Invitation of the owner, who has it at a place at which he has a right to carry it, and without any intention or purpose on the part of the defendant to control the use or possession of such weapon, he should he found not guilty, (p. 551).</p> <p>2. CRIMINAL Law — On Trial for Carrying a Pistol, the State Should Not Show that Arresting Officer Sad Warrants for Some of Defendant’s Relatives for Other Offenses.</p> <p>Upon the trial on an indictment for carrying a pistol, it is improper to permit the state to prove that at the time the defendant was arrested upon the charge, the officer who arrested him had warrants for some of his relatives for other offenses, (p. 552).</p>

Action by George W. Wilson against Boyd S. Fleming and another. A verdict for the plaintiff was set aside, and the plaintiff brings error. '

Notion by C. W. Payne, administrator of tbe estate of Charles Payne, deceased, against tbe Wright Bros. Company for damages for the wrongful death of plaintiff’s intestate. Judgment on the verdict for plaintiff, defendant’s motion for new trial overruled, and defendant brings error.

Summary proceeding by Cora Jackson, guardian, against George Jackson, ber infant son, and others for sale of infant’s'land. Decree for plaintiff, and the defendants appeal.

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by P. W. Riggs, administrator, etc., against Mrs. E. G. Strank el als. Decree for plaintiff and defendant appeals.</p>

Suit by Ralph H. Ely and others against Ernest Phillips and others. Decree for the plaintiffs, and the defendants appeal.

Action by Wirt W. Donally, administrator, of the estate of Joel il. Meadors, deceased, against John Barton Payne, Director General of Railroads of the United States, for damages for wrongful death of plaintiff’s intestate. A verdict for plaintiff was set aside, and judgment rendered for the defendant, and the plaintiff brings error.

<p>1. CRIMINAL Law — Inferior Court May be Prevented, from, Proceeding Only for Lack of Jurisdiction.</p> <p>The only ground of jurisdiction in a superior court, to prevent an inferior court from proceeding in any cause or matter, is lack of jurisdiction of such cause or matter in the inferior court, for some reason, (p. 602).</p> <p>2. Same — No Lack of Jurisdiction in Either of Two Inferior Courts of Concurrent Jurisdiction Until Plea of Abatement in One.</p> <p>If two inferior courts of concurrent jurisdiction are entertaining identical causes of action between the same parties at the same time, there is no lack of jurisdiction in either of them, until after an application to one of them for abatement of the action pending in it, or relinquishment of its jurisdiction, has been made and sustained by proof, (p. 603).</p> <p>3. Same — Attachment of Jurisdiction of First of Concurrent Courts Does Not of its Own Force Preclude Jurisdiction of the Other.</p> <p>In such cases, attachment of the jurisdiction of the court of first cognizance does not of its own force preclude jurisdiction of the court of second cognizance. It merely affords the parties concerned the means or ground for procuring abatement of the second action, or discharge of persons or property seized under the process of the court in which it is pending, (p. 603).</p> <p>4. Prohibition — Will Not Lie to Court of Second Cognissance Before a Nearing to Determine its Jurisdiction.</p> <p>Upon the plea in abatement filed under such circumstances, or an application for discharge of the. person or property seized, the court of second cognizance has jurisdiction, upon such pleas or application, to ascertain the facts necessary to 'determination of the question, whether the same cause of action between the same parties is pending in the court of first cognizance, and previously came within its actual jurisdiction, or whether the same person or property is in the custody of such other court and was first seized under its process, as the case may be; wherefore the writ of prohibition cannot be awarded against the court taking subsequent jurisdiction of the cause of action or the person or property, before a hearing and determination as to its right to retain jurisdiction has been had, upon a proper application therefor, in the manner above indicated, (p. 605).</p> <p>S. Same — Coxirt Cannot be Deprived of its Right to Determine Jurisdictional Facts, Although Evidence is Absolutely Conclusive. .</p> <p>If the question of a court’s jurisdiction depends upon issues of fact, it has power and jurisdiction to decide them, even though the evidence relied upon to prove the jurisdictional facts is wholly uncontradicted and absolutely conclusive, and it cannot be deprived of its right to do so by prohibition or any other collateral proceeding, (p. 605).</p> <p>•6. Same — Will Not Lie at Instance of One Indicted as Accessory To Murder in Two Counties to Prohibit One Court Prior to Hearing on its• Jurisdiction.</p> <p>Prohibition does not lie at the instance of a person indicted, as an accessory before the fact to the crime of murder, in courts of two counties having concurrent jurisdiction of the offense, and held in custody under process issued by one of such courts, to prevent the other from proceeding against him, by process for his arrest or otherwise, in advance of a hearing in such other court as to facts upon which its supposed lack of jurisdiction depends, such as his identity, his arrest and possibly other matters, (p. 607).</p>

<p>Appeal from Circuit Court, Hampshire County.</p> <p>Suit by W. W. Hanly and others against Frank L. Har-mison. Decree in favor of the defendant, and the plaintiffs appeal.</p>

<p>1. Limitation of Actions — Malicious Prosecution Suit Must be Begun W.ithin One Tear After Judgment for Defendant.</p> <p>The right to sue for malicious prosecution of a civil action accrues upon the rendition in the trial court of a judgment for the defendant in the action complained of, and is harred by the Statute of Limitations if not asserted within one year after such judgment, although the plaintiff in the suit which it is claimed was maliciously prosecuted may have a right to apply for an appeal or a rehearing, of which he does not avail himself, (p. 618).</p> <p>2. Same — Suit, Begun and Dismissed for Failure to File Declaration Will Not Save From Bar of Limitations of Statute.</p> <p>A suit begun by the issuance and service of process, and dismissed at rules for the failure of the plaintiff to file his declaration, will not save a second suit for the same cause of action, .brought within one year after such dismissal, from the bar of the Statute of Limitations, (p. 621).</p> <p>(Lively, Judge, absent.)</p>

<p>Error to Circuit Court, Berkeley County.</p> <p>Action by the West Virginia Pulp & Paper Company against John L. Whitmore and wife. Judgment for the defendants, and plaintiff brings error.</p>

Case Certified from Circuit Court, Roane County. Proceedings by Lula A. Sinnett and others against Lee Goff and others. A demurrr to the hill was sustained, and ease certified..

<p>Original proceeding in prohibition by the State, on the relation of Stella M. Showen, against W. H. O’Brien, Judge, etc., and others.</p>

<p>Error to Circuit Court, Jackson County.</p> <p>Action by L. H. Swartz and others against D. A. Kay and others. Judgment for plaintiffs, and defendants bring error.</p>

Suit by John W. Grove and others against Jacob W. Long. Bill dismissed on demurrer, and temporary injunction dissolved, and plaintiffs appeal.

Suit by tbe Citizens’ National Bank of Connellsville and others against tbe Harrison-Doddridge Coal & Coke Company, tbe Commonwealth Trust Company of Pittsburgh, and others. Decree for plaintiffs, and last-named defendant appeals.

<p>Appeal from Circuit Court, 'Kanawha County.</p> <p>Suit by J. F. Woodyard against P. C. Kuhn. Decree for. defendant, and plaintiff appeals.</p>

<p>Actions — Suit hy State to Sell for Benefit of School Fund Land Purchased at Delinquent Taos Sale Properly Dismissed when Party Assessed with Land Had Conveyed Same away Ps-ior to Assessment and Transfer Had Been Made on Land Booties.</p> <p>A suit brought' hy the State un'der the provisions of chapter 105 of the Code to sell, for the benefit of the school fund, a tract of land purchased by the State at a sale made by the sheriff for taxes delinquent thereon, is properly dismissed when it appears that the party in whose name the said land was assessed with the taxes for which the delinquent sale was made had, 'before such assessment, conveyed away the whole of said land to other parties, to whom it was regularly transferred upon the land books.</p> <p>(Lively, Judge, absent.)</p>

<p>Error to Circuit Court, Logan County.</p> <p>Ballard Plymale was convicted of murder in tbe second degree, and he brings error.</p>

<p>Appeal from Circuit Court, Lewis County.</p> <p>Bill by Margaret L. Fisher against Philander K. Teter and others. Decree for defendants on demurrer, and complainant appeals.</p>

<p>Original jurisdiction.</p> <p>Petition by City of Huntington for suspension of order of Public Service Commission.</p>

Original jurisdiction. Petition to review and- suspend the judgment of the Public Service Commission, in the Case of Bluefield Water Works and Improvement Company against Public Service Commission and others.

Original jurisdiction. Mandamus in case of State ex rel. S. M. Noyes against Howard C. Lane, Clerk etc. and others, in tbe recall of councilmen and city manager of tbe city of Wheeling.