Volume 90 — West Virginia Reports

The Sutton Chemical Company applied to the Public Service Commission for an order to compel the Baltimore & Ohio Railroad Company to construct a certain switch or siding, and the Commission issued the order applied for, and the Railroad Company filed its petition against the' Commission for suspension of such order. On motion to suspend order.

<p>1. Mandamus — Directors of Fraternal Organization's Orphans’ Home May Maintain Mandamus Against Board of School Directors to Secure Admission of Children to Schools.</p> <p>Under Barnes’ Code, 1918, chapter 55-A, sections 32-h I and 32-b II, authorizing grand lodges of fraternal organizations to establish homes for the care and support of orphans, to adopt and prescribe rules for the control of such homes, and to appoint from their own memberships boards of directors with corporate powers, and giving such boards so created authority to sue, mandamus may be maintained by such a board of directors to secure admission of children admitted to such home or homes to the public schools where such home or homes are located. (p. 12).</p> <p>2. Schools and School Districts — When Contract to pay Tuition for Children of Orphans Some Becomes Nudum Pactum.</p> <p>A fraternal organization, organized under Barnes’ Code, 1918, chapter 55-A, section 32-,b I, established outside an independent school district a home for the care and support of orphans of its deceased members, and to obtain the benefit of free schools in said district for the children admitted to the home, contracted with the beard of education of the district to pay tuition, whether the home should be included within the said district or not. -Subsequently the boundaries of the district were extended so as to include the home; the children of the home became entitled to attend the schools of said district without payment of tuition, said contract becoming a mere nudum pactum, without consideration and no longer binding on the fraternal organization. (p. 12).</p> <p>3. Same — A Child Need Not Save Legal Domicile Where Public School is Located to Entitle it to Attend.</p> <p>Public schools are required by the statute to be maintained for all persons within the -school district oyer the age of six and under twenty-one years, and it is not essential to the right of a child to attend a public school that it should have a legal domicile in the place in which the school is located, (p. 15).</p> <p>4. Same — Tempot'ary Residence Not Solely for Benefit of Schools. and With Intention of Removal Thereafter Entitles a Child to Attend Without Paying Tuition.</p> <p>The residence necessary to entitle a child to attend public schools without payment of tuition is not such as would be required to establish a right to vote, or which would fix the liability for the support of a pauper, or for the purpose of determining the right of administration of its estate, but a residence -even for a temporary purpose, not -solely to enjoy the benefits of the free schools and with the intention of removal as soon as that purpose is accomplished, is sufficient, (p. 15).</p> <p>5. Same — Every Child Entitled Without Paying Tuition to Attend Schools of District in Which Actually Residing Whether or Not Legal Domicile of Parents or Guardian.</p> <p>Every child in this state is entitled without payment of tuition to attend the public schools in the district in which it actually resides for the time being, whether that .be its legal domicile or the legal domicile of its parents or guardian or not. (p. 15).</p> <p>6. 'Same — Inmates of Orphans’ Home May Attend Schools of District in WMeh Home is Situated Without Paying Tuition or Presenting Transfers.</p> <p>Under the statute requiring that schools he open to all youths between the ages o>f six and twenty-one for the full length of the school term provided ih that district, inmates of an orphans’ home within an independent school district, whose custody and care has been surrendered to such home by their parents or guardian, having no other home, and residing there permanently, though admitted there from other school districts of the state, are actual residents of such independent school district, and have a right to attend the public schools of such district without payment of tuition, and without presenting transfers from the boards of education of the several districts whence they came to the board of such independent district. (p. 16).</p>

Original proceeding by the State, on the relation of Thomas J. Welsh, against Hon. Warren B. Kittle, Judge of the Circuit Court of Taylor County, for prohibition to prevent the collection of an execution in the hands of a sheriff issued on a judgment for costs in favor of Cora B. Welsh and against the relator.

Case Certified from Circuit Court, Marshall County. Action by Alcinda C. McMechen and others against the Baltimore & Ohio Railroad Company, in which a demurrer to the declaration was overruled, and the case certified for review.

Certified Question from Circuit Court, Marshall County. Application by the City of McMechen and others for a writ of mandamus against the Wheeling Traction Company, in which the respondent’s return to the alternative writ of mandamus was found insufficient, and questions certified.

Original proceeding by the State on' the relation of Antonio Presutti against the Honorable A. J. Valentine, Judge of the Circuit Court of Tucker county, to prohibit the Court from proceeding to enforce a judgment convicting the relator of a felony upon the ground that the same is null and void.

Certified from Circuit Court, Barbour County. Action by E. A. Grover against the Murray Lumber Company, in which J. W. Criss, a general creditor of the de-' fendant company, was made a party and demurred to the bill. The demurrer was overruled, and question certified.

<p>1. Quieting Title — Bill Must Allege Actual Possession, But Allegation in General Terms is Sufficient.</p> <p>One of the essential disclosures to he made hy a bill to remove cloud from title to land is actual possession of the land hy the plaintiff, hut it suffices to allege in general terms that he is in possession thereof. (p. 44).</p> <p>2. Perpetuities — Gas Lease Held Not a Violation of the Rule Against Perpetuities.</p> <p>An extension clause in an oil and gas lease creating a ■specific term, providing that the lease shall continue after the expiration of such term, as much longer as the rental for delay in operating is paid, or as long after commencement of operations as the premises are being operated for the production of oil or gas, is not within the rule against per-petuities. (p. 44).</p> <p>3. Mines and Minerals — Where Drilling of Well was Commenced Within Specific Term and Prosecuted in Good Faith, Held That Lease was Extended Under Extension Clause.</p> <p>If, under such a lease and within such specific term, a well is commenced and the work of drilling diligently and in good faith prosecuted hut not completed, at the expiration thereof, the lease continues in forcé and effect by virtue of such extension clause. (p. 45).</p> <p>4. Same — Refusal to Accept Delay Rentals Held Not to Terminate Lease for Specific Term Providing for Extension.</p> <p>Such a lease cannot be terminated by the mere refusal of the lessor to accept payment of the delay rentals. To terminate it after the expiration of the specific term, and in the absence of drilling commenced within it, he must give reasonable notice of his intention to terminate it for failure to drill, demand the commencement of operations and thereafter allow a rental period, oh payment of the rent, for the drilling of a well. (p. 45).</p> <p>5. Cancellation oe Instruments — Mines and Minerals — Only Extraordinary Hardship Occasioned by Lack of Diligence in Development Required Justifies Partial Cancellation; Bill for Cancellation of Oil and Gas Lease Indefinite in Allegations as to Lessee’s Lack of Diligence in Development, is Insufficient.</p> <p>Only an extraordinary case of hardship, if any, occasioned by lack of diligence in the development of land leased for oil or gas, required by the implied covenant in a lease of land for such purpose, will justify partial cancellation of the lease, and a bill praying such relief upon general and indefinite allegations of such lack of diligence is clearly insfficient. (p. 46).</p> <p>6. Same — Bill for Cancellation of Oil and Gas Lease on Ground of Drainage by Other Wells Must State Facts Clearly Showing the Cause of Action.</p> <p>Relief by partial cancellation of an oil or gas lease, upon the ground of drainage by means of wells on adjacent or neighboring lands, is extraordinary in character, and, to> be sufficient, a bill for such relief falls within the same rule of pleading. In both cases, the bill must state facts and circumstances of such character as, taken for true on demurrer, clearly indicate the existence of the cause of action asserted, (p. 46).</p>

<p>1. Highways — Construction, Maintenance and Repair a Governmental Function and County Not Liable for Personal Injuries from Negligence in Absence of Statute.</p> <p>The construction, maintenance and repair of public roads of a county, by its county court, are governmental functions; wherefore, for an injury inflicted upon a citizen, by the negligence of its agent, servant or employee, in the execution of such work, it is not liable, unless the act causing the injury was of such character as to impose liability under the terms and provisions of a statute, (p. 48).</p> <p>2. Same — Negligent Driving of County's Motor Truck Held Not to Make Road Unsafe or “Out of Repair" Withm Statute so as to Render County Liable.</p> <p>Negligent driving of a motor truck owned by a county court and used in such work, upon a county road, by one of its agents, servants or employees; in consequence of which a citizen traveling on such road is fatally injured, does not make the road unsafe for travel or “cut of repair” within the meaning of sec. 154 of ch. 43 of the Code, and, in such case the county court is not liable in damages for the death of the persons so injured, under or by virtue of said statute, (p. 49).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the Plat Top National Bank against A. P. Parsons. Judgment for plaintiff, and defendant brings error.</p>

<p>Certified Question from Circuit Court, Kanawha County.</p> <p>Suit by Earl C. Cobb and others against Biddie A. Moore and others. Demurrer to hill sustained, and question certified from the circuit court.</p>

<p>1. Counties — -Highways—County Court Cannot he Sued for Money Due on Contract Until Itemized Statement Presented and Refused; Claims for Breach of Contract for Road Building Must he Presented Before Suit Thereon.</p> <p>A suit cannot be maintained against a county court upon any claim for a sum of money founded on contract (except a county order) until an itemized statement thereof has been presented to the court, or filed with its clerk, and the court has refused to allow such claim .in whole or in part, or has refused to act thereon as provided in sections 40 and 41 of chap. 39, Code, 1918. A claim for damages arising out of a breach of contract for road building is such a claim as is required to be so presented to a county court, (p. 70).</p> <p>2. Contracts — Instruction as to Rights of Parties After Breach Held Properly Refused.</p> <p>An instruction which in effect tells the jury that if one party to a contract has broken the same in the “first instance”, that then the other party (at any time thereafter during the performance of the contract) may regard the cantract as broken, quit performance of the same and maintain suit for the amount then due him, is erroneous and misleading and properly refused in a case where, after the alleged breaches, t-he other party continued performance thereof and received payments thereon as provided in the contract, (p. 71).</p> <p>3. Tjrial — Instruction Assuming Facts Not Supported hy Evidence Properly Refused.</p> <p>An instruction which assumes a fact of which there is no competent evidence is properly refused, (p. 72).</p> <p>4. Appeal and Error — Error, Predicated on Improver Evidence Not Objected to, will Not be Considered.</p> <p>Error, predicated upon the introduction of improper evidence which has been permitted to go to the jury without objection or exception, cannot be considered in the appellate court, (p. 73).</p>

<p>Public Service Commissions- — Gould Not Find That Corporation Exceeded Bates No Longer Applicable to Service Rendered.</p> <p>The Public Service Commission of West Virginia has no authority to entertain .a complaint for the purpose of determining that a public service corporation has charged rates in excess of those authorized, when it appears that the rate which it is contended was applicable, and which such corporation is charged with exceeding, is no longer applicable to the service rendered, and the decision sought could only he for the purpose of fixing a basis for recovery of the amount of the excessive charge.</p>

<p>Appeal from Circuit Court, Raleigh. County.</p> <p>Suit by John Earle McCreery against D. Howe Johnston and others for the construction of the will of John W. Mc-Creery, deceased. Decree for complainant, and defendants appeal.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the Twentieth Street Bank against J. M. Summers and others. Judgement for defendants and plaintiff brings error.</p>

<p>1. Appeal and Ebkok — Statute of Limitations Runs from, Date of Last Decree.</p> <p>Where the decree appealed from sets, aside a prior decree, entered at the same term, the statute of limitations of one year begins to run, not from the date of the ’decree set aside, but from the date of the last decree, although such decree has not changed or otherwise affected the rights of the parties to the appeal, (p. 101).</p> <p>2. Same — Obtained on Transa-ipt of Record Instead of Original Papers.</p> <p>When a petitioner for an appeal presents with his petition a transcript of the record instead of the original papers in a cause as provided in section 5, chapter 135 of the Code, and obtains an appeal thereon, his appeal will not be dismissed on motion of the appellee because appellant did not first file his petition in the office of the clerk of the circuit court and give bon'd or make a deposit and have the original papers transmitted to the clerk or a judge of this court as provided therein, (p. 102).</p> <p>3. Pleading — Right of Plaintiff to File Demurrer and -Special Reply to Answer After Cause Has Been Submitted for Decision.</p> <p>An answer to a bill which is merely defensive of the rights alleged against respondent, though it may plead matters in estoppel of rights asserted against him .in the bill, is not a cross-bill or cross-bill answer, and though such answer prays that plaintiff may be decreed to be estopped by his acts and conduct pleaded, he is not prejudiced by the refusal of the court, after a cause has been submitted for decision, but before actual decision, to file his demurrer and special reply to such answer, (p. 104).</p> <p>4. CoNtbacts — Concession in Contract No Basis for Decree Against Rightful Owners Not Parties to Such Contract.</p> <p>Plaintiff who by contract between himself and his coplain-tiffs is conceded rights not belonging to’ them or him, but concededly belonging to others not parties to such contract, and from whom such plaintiff produces no right or title, is not entitled to the rights and interests conceded to him by the parties to the contract, as against the rightful owners of such rights, and he is not entitled to a decree against .them based solely on the concession in such contract, (p. 104).</p>

<p>Application by the State, on the relation of G-. H. Marcum and others, for writ of mandamus against the County Court of Wayne County and others.</p>

<p>1. Deeds — Land Expressly Conveyed by One Part of Deed Not Excepted Toy Uncertain Clause in Another Part.</p> <p>A portion of a tract of land expressly conveyed by one part of a deed is not excepted from the conveyance, by an uncertain clause or provision found in a subsequent part of the instrument. To effect such a result, the terms of the subsequent clause must be as certain an'd definite as the granting clause or provision, (p. 122).</p> <p>2. Same — Land within Proposed Area Held Not Excepted from Deed by Metes and Bounds.</p> <p>A clause in a deed by which land is conveyed by metes and bounds, to the center of a proposed alley in a section not actually 'divided into -town lots, but adjoining land so divided, providing as follows: “Saving and reserving, however, that portion of the land above mentioned, which is necessary to conform to the Official Map as mentioned above, as far as the same pertains to the streets and alleys as set out thereon, dedicating to public use the alley only;” supplemented by another saying: “For further description of the land hereby conveyed, reference is hereby made to the drawing attached hereto, an'd made a part hereof,” and the drawing itself on which the land lying outside of the alley, is marked “Tract conveyed” and that inside, “Portion reserved;” read in connection with the express grant to the center of the alley an'd the rule of interpretation above stated, is construed as not having excepted from the grant the land within the proposed alley, but as,having so limited the conveyance thereof, as to make it pass the title thereto to the grantee, subject to a public easement over it for alley purposes, (p. 119).</p>

<p>1. Insurance- — No Recovery Under Policy Indemnifying Against Injuries from Elevator Where Operator was Less Than 16 Years Old and Without Work Permit.</p> <p>Where an insurance policy, indemnifying the plaintiff against loss for personal injuries caused by its elevator, expressly provided that the “policy does not cover on account of injuries or death caused by any elevator while in charge of any person under the age fixed by lawf ordinance or munici-ipal regulation for elevator attendants, or under the age of sixteen years, where no -age is so fixed, “there can be no recovery against tiie insurer on a judgment recovered against the plaintiff for personal injuries, where it appears that the elevator attendant was under sixteen years of age, and did not possess a work permit provided for, under chapter 17, Acts 1919. (p. 127).</p> <p>2. Infants — Statute Held to Fix Minimum Age of Elevator Attendants in Absence of Work Permits at 16 Years.</p> <p>Chapter 17, Acts 1919, fixes 16 years as the minimum age for the employment of elevator attendants, in the absence of a work permit as therein required, (p. 126).</p>

<p>1. Injunction.</p> <p>Injunction is ithe proper remedy to restrain a city from entering upon a person’s lan'd, and permanently appropriating tlie same for public use, without first obtaining right to do so in one of the modes provided for by law. (p. 133).</p> <p>2. Same — Sufficiency of Bill.</p> <p>A bill which alleges that the plaintiff has title to and possession of land adjoining a public street in a city, that the city threatens to invade the same and place thereon a permanent structure that will cause irreparable injury, avers lack of remedy at law and prays for an injunction to restrain the threatened injury, is not demurrable for want of equity, (p. 135).</p> <p>3. Same — Equity Not Deprived of Jurisdiction Because of Dispute as to Existence of Easement.</p> <p>Plaintiff files her bill alleging ownership in fee, enclosure and possession of ,a strip of land adjacent to a public street in the city of Charleston, and that the city threatens to take possession thereof, and place thereon a catch .basin for drainage purposes, which would cause .irreparable injury to plaintiff’s property, and obtains a temporary restraining order. The city answers the bill, admitting title in the plaintiff to the land 'in controversy, except that it alleges ownership of an easement for street purposes over the disputed strip, which plaintiff ’denies; equity is not thereby deprived of jurisdiction because of such dispute and the court may proceed to a final determination of the right to such easement, (p. 135).</p>

<p>1. Deed — Timbee Land — Time for Removing Timber When Deed Silent.</p> <p>Ordinarily if a deed for timber does not prescribe the time within which it .is to be manufactured into lumber, and the lumber removed from the land, the grantee must remove it within a reasonable time, or lose the benefit of his purchase, (p. 139).</p> <p>2. Same.</p> <p>Although such a dee'd vests title to the timber in the grantee, it does so nnly upon the condition that he remove it within a reasonable time. (p. 144').</p> <p>3. 'Same — Reasonable Time.</p> <p>What is a reasonable time depends upon the facts and circumstances of each case requiring its application, (p. 144).</p> <p>4. Same — When “Reasonable Time” Begins to Run.</p> <p>Where the owner of land deeds all of the timber thereon, together with an undivided interest in the land, amounting to about one-third of the acreage, if partitioned, and without limiting the time i'n which the timber is to be removed by the grantee, the “reasonable time” in which the timber must be cut and removed begins to run from the date of partition. (P. 144).</p> <p>5. Timber Lands — Removal of Mills and Delay in Resuming Incomplete Operations Create No Presumption That All Timber Deeded Has Been Removed.</p> <p>Where such land and timber is so- granted and the grantee a short time thereafter cuts and manufactures into lumber all kinds of timber on the land which could then be sold at a profit, on account of its remote situation from transportation and because of the condition of the lumber market, and then removes his mills and equipment and ceases the operation, but leaves approximately fifty per centum of the timber uncut; causes the remaining timber to be assessed for taxation in his name and pays the taxes thereon; within nine years after ceasing operations, procures a mill site near the land for the manufacture of the timber remaining and secures a contract for transportation of the lumber to be cut from said land over a lumber railroad nearby; but for fourteen years after ceasing operations does not resume such operations; it will not be presumed that he has cut and removed all the timber deeded to him, contemplated by the parties to the deed, in a suit by his grantor for partition of the land, (p. 141).</p> <p>6. Same — Assessment and Payment of Taxes on Timber Alone Not Sufficient to Cut and Remove.</p> <p>Assessment and payment of taxes on the timber under such circumstances is not alone sufficient to continue the right to cut and remove, but will be considered as evidence of grantees’ intention and claim of right to cut and remove, (p. 142).</p>

<p>Appeal and Error — Circuit Court Must State that it Deems Common Pleas Judgment Plainly Right to Malee Order Refusing Writ of Error Final and Reviewable.</p> <p>An order of the Circuit Court of Kanawha County refusing to allow a writ of error to the judgment of the Court of Common Pleas of that county must state therein that the judge thereof deems the judgment of the Court of Common Pleas plainly right and that he rejects the application for error on that ground, in order to make such order final and subject to appellate process, as provided in chap. 109, sec. 20, Acts, 1915; and if a writ of error from this court has been granted in the absence of such finality in the order, required by said Act, it will be dismissed as improvidently awarded.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by T. R. Truslow against John Barton Payne, Director General of Railroads, in the Court of Common Pleas of Kanawha County. Application to the Circuit Court was made for writ of error, and the original petition is indorsed “Writ refused,” and the defendant brings'error.</p>

<p>1. Weapons — Presumption that Discharge of Revolver in Sands of Officer was Negligent May he Rehutted.</p> <p>Where a revolver in the hands of an officer is discharged and inflicts an injury upon another, there is a presumption that the discharge of the weapon resulted from the negligence of the party having it in his possession and under his control, which presumption may be overcome by showing that he was justified in wounding the injured party in order to accomplish a.lawful arrest, or in defense of his own person, or by evidence showing that the weapon was discharged as a result of the intereference of some independent outside agency, (p. 153).</p> <p>2. Same — Whether Revolver in Hands of Officer was Discharged hy Negligence or Accident Held for Jury.</p> <p>In an action for damages resulting from an injury inflicted by the discharge of a revolver in the hands of an officer, where it appears that the officer was not justified in shooting in -order to accomplish a lawful arrest, or in self defense, it is error to instruct the jury to find for the defendant simply upon a - showing that the' weapon may have been discharged by some third party coming in contact with it or the officer in whose possession it was. It is for the jury to determine whether the discharge of' the weapon resulted from that cause upon the whole evidence produced, or was the result of the negligence of the officer, evidence of which negligence is afforded by the discharge of the weapon under the circumstances, (p. 155).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Proceedings by the Virginian Power Company against W. T. W. Brotherton and others to condemn land. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Depositions — Notice to Joint Stock Association by Service Upon Auditor Held Insufficient.</p> <p>Notice to a joint stock association, not incorporated, nor having complied with the statute of this state relating to nonresident corporations doing business in this state, to take depositions, served upon or accepted by the auditor as attorney in fact, not appointed by such association, amounts to no notice, and depositions taken solely upon such notice and without appearance should be suppressed, (p. 163).</p> <p>2. Evidence — Unidentified Receipts by Express Company Held Incompetent in Action for Loss of Goods.</p> <p>Papers purporting to be receipts by an express company for goods to be transported, but not identified in any way as the receipts of the carrier or executed by it or its agent or one in charge of its business, are not competent evidence to go to the jury on the question of the actual delivery of the goods to the carrier, so as to charge it with the loss or miscarriage thereof., (p. 164).</p> <p>3. Same — Hearsay Evidence of Employees of Shipper Held Incompetent in Action for Loss of Goods..</p> <p>The testimony of employees of a shipper of goods as to what other employees have reported to them in regard to goods delivered to.a carrier, unaccompanied by any evidence of those having knowledge of the actual delivery thereof to the carrier, is incompetent and should) be rejected on the trial of an action against the carrier for loss or miscarriage of the goods, (p. 165).</p> <p>4. Tkiai, — Exclusion of Evidence of Plaintiff Held Properly Denied Where Partly Competent Though Alone Insufficient to Justify Verdict.</p> <p>A motion to exclude all the evidence of plaintiff when some of it is competent and legal, though not alone sufficient to justify a verdict in his favor, should be overruled if it appears that sufficient evidence probably exists, but by some misapprehension of law the plaintiff has omitted to produce existing evidence sufficient to make out his case before the jury, and he should by some appropriate method be given an opportunity to supplement the evidence adduced by existing evidence necessary to support a verdict and judgment in his favor, (p.1.65).</p>

<p>1. Set-Oee — Plea of — Founded Upon Unliquidated Damages Must l)e Excluded on Proper Objection, Unless Waived..</p> <p>Although a data for unliquidated damages is not proper matter for a set-off, in the absence of peculiar circumstances, and a plea of set-off founded upon it must he excluded by the trial court, upon a proper and timely objection thereto interposed by the plaintiff, right to have it excluded is waived by his failure to demur to the plea, resist the filing thereof and object to the introduction of evidence to sustain it. (p. 171).</p> <p>2. Unliquidated Demand — -Non-Delivery of Goods.</p> <p>A claim for damages for non-delivery of goods sold is an unliquidated demand, (p. 171).</p> <p>3. Instructions — Charging Jury that it may Disregard all the Testimony of Witness they Believe Has Wilfully Sworn Falsely to a Material Fact Held to be Erroneous.</p> <p>Direct and irreconcilable conflict in the testimony of the principal witnesses in a case, as to several material questions of fact -involved therein, does not justify the giving of an instruction telling the jury that, if they believe from the evidence any witness has wilfully sworn falsely to any material fact in the case, they may in their discretion disregard all the testimony of such witness, (p. 172).</p> <p>4. Evidence — Duty of Jury to Consider Evidence of Witness Other than that Found to he False.</p> <p>The maxim, “Falsus in uno, falsus in omnibus,” is a mere rule of evidence affirming a rebuttable presumption of fact, under which the jury must consider all the evidence of- the witness, other than that which is found to be false, and it is their duty to give effect to so much of it, if any, as ite relieved from the presumption against it and found to be true. (p. 173).</p> <p>5. Appeal and Error — Verdict Set Aside by Loioer Court for Harmless Error will Not be Disturbed by Appellate Court.</p> <p>An order of the court below, setting- aside a verdict for the error in giving such an instruction, will not be disturbed by the appellate court, upon the theory of harmlessness of the error, unless the latter court can see that the verdict was plainly and clearly right, (p. 173).</p> <p>6. Same — Trial Court’s Peculiar Knowledge of the Case Affords a Basis for Exercise of Judicial Powers on Motion for New Trial which is Entitled to Respect in Appellate Court. ■</p> <p>Such error supplemented by the trial court's 'peculiar knowledge of the case, derived from observation of the actors therein affords a basis for the exercise of its judicial powers, and its judgment upon -the question of the sufficiency of the error to sustain a motion for a new trial is entitled to the usual degree of respect in the appellate court, (p. 173).</p> <p>7. Compromise — Introduction of Testimony Explaining Correspondence Relating to Controversy in Effort to Effect it.</p> <p>A party to a suit who has rigidly declined all overtures of compromise of the matters in 'difference between him and the opposite party, is not in a position successfully to resist introduction of the testimony of his opponent’s attorney, filing and explaining correspondence relating to the controversy, upon the ground of disclosure of admissions made in an effort to compromise, (p. 173).</p> <p>8. Evidence — Of Transactions by Which Respondent was Not Affected Inadmissible.</p> <p>The rule, Res inter alios acta, precludes introduction of evidence of transactions by which the proponent was in the way affected and to which-he was in no sense a party, (p. 175).</p> <p>9. Instructions — Modification of by Elimination of Matter Having no Evidence for Basis.</p> <p>An instruction containing matter having no basis in the evidence may properly be modified by elimination of such matter, by the trial court, before allowing it to go to the jury. (p. 175).</p> <p>10. Argument — Defendant Has Right to Open and Glose in Action Involving, Plea of Set-Off when Liability of Plaintiff’s Demand i's in Mvidence and Denied.</p> <p>In,.'an action involving a plea oí set-off, the issue arising on which constitutes the only real controversy between the parties, liability for the 'plaintiff’s demand being admitted in evidence but 'denied by a plea, the defendant has right to open.and close the argument, (p. 175).</p>

<p>Appeal and Error — When Decree will he Reversed for Want of Decisive Evidence on the Merits Stated.</p> <p>Where the record of a chancery cause discloses that a decree was prematurely entered, before the merits of the cause had been properly developed upon the vital issue involved and that there is strong probability of the existence of evidence decisive thereof, which counsel under a misapprehension of law have failed to adduce, the court will reverse the decree and remand the cause for further proceedings.</p>

<p>1. Justices ojt ' ti-ie Peace — Term “Cause of Action” of which Justice Has Jurisdiction Defined.</p> <p>Under section 16, chapter 50, Code, providing that “The civil jurisdiction of a justice shall not extend to any action unless the cause of action arose in his county, or the defendant, or one of the defendants, reside therein,” the term “cause of action” means the act or omission constituting the violation of duty complained of. - (p. 182).</p> <p>2. Same — Cause of Action for Failure to Pay Money Arises Whére Debt First Due.</p> <p>A cause of action for failure to pay money arises at the time and place where the debt first becomes due and payable. (p. 184).</p> <p>3. Same — Venue in Action for Recovery of Money Stated.</p> <p>Though generally speaking, it is the duty of the debtor to seek the creditor, the creditor may not sue before a justice for the collection of his debt in whatsoever county he may elect, a justice’s jurisdiction as to a resident being expressly limited by statute to (1) the county wherein the defendant resides, and (2) the county wherein the cause of action arose, (p. 184).</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Action by B. F. Perkins against Max L. Friedberg and others and Marden, Orth & Hastings Company. Decree for plaintiff, and defendants last named appeal.</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by Walter A. Prunty against the Tyler Traction Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Suit by A. C. Lawrence against W. A. Kennedy and others. Decree for plaintiff and C. J. Van Fleet appeals.</p>

<p>1. Cbimotal Law — Judgment of Fine and Imprisonment in Other County and to Work on Public Roads Held Not Void.</p> <p>' A judgment of fine and imprisonment and to work on the public roads, pursuant to section 48 of chapter 112 of the Acts of 1921, the road law, is not void as being in excess of the jurisdiction of the court, because, as properly interpreted, such judgment, in recognition of a contract between the county court of the same county and that-of an adjoining county entered into in accordance with the proviso of section 49 of said act, also orders that the sheriff of the county where convicted remove the prisoner from the jail of his county to the jail of an adjoining county there to be held for the period of his imprisonment and required to work on the roads of that county under the supervision of the sheriff and road officials of that county, (p. 222).'</p> <p>2. Habeas Corpus — Prisoner Under Judgment Partly in Excess of Jurisdiction.</p> <p>But should such judgment he considered as in excess of the jurisdiction of the court in so far as it undertakes to order a prisoner to he worked on the roads of such adjoining county, he would not he entitled to his discharge from custody on habeas corpus. He should then simply he remanded to! the custody of the proper officer to have the judgment against him not in excess of the Court’s jurisdiction properly executed, (p. 224).</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by Mathew Anderson and others against -George Schaffner and others. Decree for complainants, and defendants appeal.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by J. R. Jenkins against -the Charleston General Hospital & Training School: Verdict and judgement for plaintiff, and defendant brings error</p>

<p>Certified Questions from Circuit Court, Cabell County.</p> <p>Application by Nick Houvouras and others for a writ of mandamus against the City of Huntington, to require the defendant to issue a restaurant license. An alternative writ was issued, and the respondent’s demurrer thereto sustained, whereupon an amended petition was filed, and an alternative writ issued, to which respondent demurred, and the demurrer was sustained, and the questions arising upon the demurrers were certified for review.</p>

<p>Certified Questions from Circuit Court, Kanawba County.</p> <p>Suit by the Cherry River Boom & Lumjber Company against Shelton L. Reger and others. Defendants’ separate demurrers overruled, and question certified for review.</p>

<p>Petition by the Norfolk & Western Railway Company against the Public Service Commission to suspend and annul an order made on petition of the Kentucky & West Virginia Power Company, and the Crystal Block Coal Company, before the Public Service Commission against the Norfolk & Western Railway Company, regarding the transportation rates.</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Joe Peck was convicted of attempt to rape, and he brings error.</p>

<p>Appeal and Error — Supreme Court Cannot Review Decree Dismissing Part, of Answer Setting up Affirmative Relief, Either 6y Voluntary Certification, or Parties’ Joint Application.</p> <p>Where a demurrer to an answer in the nature of a cross-bill has been sustained an'd a decree entered dismissing the answer so far as it sets up matter for affirmative relief, the appellate court does not have jurisdiction to review and pass upon the questions raised by the demurrer to the affirmative relief sought, upon certification to it by the judge of his own volition or upon the joint application of the parties, under the last clause of sec. 1, chap. 135, Code.</p>

<p>1. 'Carriers — Not Insurers of Live Stock; Not Liable for Injuries Arising from Inherent Nature or Propensities of Animals.</p> <p>A carrier is not an insurer ot live stock delivered to it for transportation as in the case of inanimate property. For injuries to such live stock shipments arising from the inherent nature or propensities of the animals the carrier is not liable. (p. 282).</p> <p>2. Same — -Live Stock — Death of in Transit When Properly Loaded, and Moved Attributed to Inherent Nature or Propensities of Animals.</p> <p>Where it is shown that a shipment of live stock was in good condition when delivered to a carrier; that the car was not improperly loaded, where the loading was done ky the shipper; that, the car was promptly and expeditiously moved from the initial point to destination without any accident to the train carrying the same; and that no injury could have occurred to such stock from negligence in the transportation thereof, notwithstanding which it is found that some of the stock are dead upon arrival at destination, such result will he attributed to the inherent nature or propensities of the animals, and not .to the negligence of the carrier, (p. 282).</p> <p>3. Same — Interstate Shipment — Loss—Suit—•Time for Filing Claim. '</p> <p>A shipper is not barred from maintaining a suit against the carrier to recover for a loss .to an interstate shipment of live stock occasioned by the carrier’s negligence, because he did not file his claim with the carrier within four months, as provided by the live stock contract, the Federal Interstate Commerce Act providing that no such notice shall be required in such case as a condition precedent to recovery, (p. 287).</p>

<p>1. Taxation — Board of Review and Equalimtion — Jurisdiction of Circuit Court to Review Action in Fixing Values.</p> <p>A circuit court has no jurisdiction to review the action of a hoard of review an’d equalization fixing the value of property for purposes of taxation, unless upon the hearing before such hoard the evidence offered upon the question of valuation has been taken\down and certified by the board, as required by law. Such circuit court may not hear evidence de novo for the purpose of fixing such value, or require the board of review and equalization to certify to it the facts upon which such board acted in the first instance in fixing the assessment, where upon the hearing before such board no- evidence was offered or taken down as provided by law. (p.> 290).</p> <p>2. Same — Board of Review and Equalimtion — Questions of Tax-ability of Property May be Appealed to Circuit Court.</p> <p>Section 132a of ch. 29 of the Code does not provide an exclusive remedy for correcting errors in the assessment of property based upon the question whether the same is or is not taxable, but the question of the taxability of property may be presented by a party complaining, to a board o-f review and equalization, under the provisions of § 129 of ch. 29 of the Code, and an appeal entertained by the circuit court from the findings of such board, (p. 292).</p>

<p>Appeal from Circuit Court, Wirt County.</p> <p>Proceeding by William Woodyard, administrator, against Lizzie Sayre and: others, and from a decree therein the defendant United States Fidelity & Guaranty Company appeals.</p>

<p>1. Insane Peesons — Bill by Prospective Heirs of Insane Person to set Aside Deed Will Not Lie.</p> <p>As a general rule children or prospective heirs of one adjudged insane, but still living, have no right or interest in the lunatic’s estate which they are entitled to have vindicated in a court of equity, nor to set aside a deed made by him before or after inquisition of lunacy, on grounds of fraud, or other grounds, not amounting to a fraud upon them, and a bill by them for that purpose should he held bad on demurrer, (p. 305).</p> <p>2. Same — Prospective Heirs’ Bill to Set Aside Conveyance Cannot be Maintained as One to Remove the Committee.</p> <p>Nor can such a hill by such prospective heirs be maintained as one to remove the committee of an insane person appointed by the county court, the court in which his appointment was made an'd where the committee qualified having sole jurisdiction in the premises. (p. 306).</p>

<p>1. Ckiminal Law — An Instruction Prescribing Limit of Jury’s Findings, Naming Possible Verdicts, Held Not Hrror.</p> <p>In a trial on an indictment for grand larceny, an instruction prescribing tbe latitude the jury has, as to findings under it, naming the possible verdicts, without indication of any particular verdict as the proper one to be returned and without statement of the requisites of any particular finding, may properly be given. (p. 311).</p> <p>2.Same — In an Instruction on Grand and Petit Larceny in Three Parts, Including Belief Beyond a Reasonable Doubt, in the First Two, it Need not be Repeated in the Third.</p> <p>In an instruction consisting of three paragraphs, respectively stating the requisites of conviction of grand larceny and petit larceny, including in each case belief of guilt beyond reasonable doubt, and acquittal, it is not necessary to. insert the requirement of such belief in the third paragraph, (p. 311).</p> <p>3. Same — Instructions on Jury’s Province as to Credibility of ■Witnesses, Not According'Arbitrary Power, Are Unobjectionable.</p> <p>Instructions on the subject of the jury’s province respecting the credibility of witnesses, which state in the usual form the elements that may be cansi'dered as bearing upon it and do not accord to the jury any arbitrary power respecting the subject, are unobjectionable and may properly be given, (p. 312).</p> <p>4. . Same — Rulings on Instructions, Not Excepted to Are Not Proper Grounds of Complaint, But, if a New Trial is Awarded, They May be Considered.</p> <p>Rulings on instructions not excepted to are not proper ground of complaint in the appellate court, but, if a new trial is awarded by it for errors in other rulings, the propriety of such instructions may be considered and their status defined for the purposes of a new trial, (p. 312).</p> <p>5. Same — Error to Give a Misleading Instruction on the Subject of Alibi.</p> <p>In a trial on an indictment for larceny, in which the accused sets up and relies upon an alibi, by way of defense, it is reversible error to give an instruction saying: “The burden rests upon the State to make out its case against the accused to the exclusnon of a reasonable doubt, but where the accused relies upon or attempts to prove an alibi in his defense, the burden of proving the said alibi rests upon him;” even though another instruction is given, ' telling the jury the State, to prevail, must prove to their satisfaction beyond a reasonable doubt, the guilt of the accused, and that they should acquit him, in the event of its failure to do so. (p. 312).</p> <p>6. Same — Error to Refuse Properly Drawn Instruction and Give Another in Lieu Thereof.</p> <p>Though it may not be reversible error to refuse an instruction properly drawn and appropriate in all respects, and give another covering its subject matter in more general terms, as a matter of practice, it is restrictive of the liberty of action the law accords to a litigant, and should not be resorted to. (p. 313).</p> <p>7. Same — Instruction Requiring Reconciling of Evidence with Accused’s Innocence, if Possible, Held Properly Refused.</p> <p>It is not error to refuse an instruction in a criminal case, which, if given, would tell the jury they should reconcile the evidence with the innocence of the accused, if they can, since such an instruction would tend to mislead them. (p. 314)).</p> <p>8. Same — Exclusion of Merely Relevant and Unimportant Facts, Which are Immaterial, is Not Error.</p> <p>It is not reversible error in a trial, to exclude evidence of merely relevant and unimportant facts, if they are immaterial: (p. 314).</p> <p>9. Same — Discretionary Powers of Trial Court, as to Order of Evidence and to Repetition of Statements Recognised, and Not Disturbed.</p> <p>The appellate court recognizes discretionary power in the trial court, as to the order of introduction of evidence, and repetition of statements, and will not disturb the exercise thereof. (p. 314).</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Certiorari by L. W. Humphreys, administrator of the estate of Eliza Humphreys, deceased, to the county court of Monroe County, to review refusal to exonerate the estate from taxation on certain moneys. Action of county court affirmed, and the administrator brings' error.</p>

<p>Error to Circuit Court, Roane County.</p> <p>Action by C. C. Swiger against A. J. Runnion in trespass on the case, for damages to automobile and for injuries to wife. Verdict for plaintiff, and defendant brings error.</p>

<p>1. Boundaries — TJn&er a Compromise Agreement, Held that Land Should he Surveyed as of the Date of a Designated Deed Using Surface Measurement.</p> <p>Where claimants to land compromise their differences hy a ■writing, and the land which one of the claimants shall take thereunder is designated by corners, lines and 'distances as found in a deed of a certain date, recorded, and made to his predecessor in title; and, in locating and surveying the land, it appears that all of the corners have been destroyed and the true locations thereof disputed, except one on which the parties agree, the land should be surveyed as of the date of the designated deed, and not as of the time of the compromise agreement, and by the method of measurement used in the original survey, beginning at the undisputed corner, and if the deed shows on its face that the corners, lines and distances were made by surface measurement, the same measurement should be used in. restoring the destroyed corners and in ascertaining the true boundaries. The proper construction of the compromise agreement is that the parties intended that the corners and boundaries should be ascertained by the measurement set out in the original deed referred .to by them. (,p. 331).</p> <p>2. Same — Disputes—Course or Distance According to Manifest Intention of the Parties Should Control.</p> <p>Where there is a conflict between the distance of one line and- the course of another, either the course or the distance shall control, according to the manifest intention of the parties, (ip. 336).</p> <p>3. Same — Method of Making Original Survey and Facts and Circumstances May he "Weighed in Determining "Whether Distance of One Line Should Control Courses of Another and Vice Versa.</p> <p>In such case the method of making the original survey whether by surface or horizontal measurement, the quantity of land conveyed and the price paid therefor, and generally the facts and circumstances surrounding the parties at the time of the survey and deed, may he weighed and considered in determining whether the distance of one line of the survey should control the courses of another line, or vice versa. (p. 331).</p>

<p>1 Criminal Law — A Warrant Charging Unlawful Manufacture, Bale, and Keeping for Sale Held Not Void for Duplicity.</p> <p>The warrant charging that the accused did unlawfully manufacture, sell, offer, expose, keep and store for sale, or barter, intoxicating liquors as defined hy sec. 1, chap. 13,' Acts, 1913, contrary to law, under sec. 3, chap. 108, Acts, 1919, is not void for duplicity, (p.-341). .</p> <p>2. Same — Joinder of Two or More Offenses of Same G-eneral Nature in a Warrant Not Gi'ound for Quashing.</p> <p>Joinder of two or more offenses of the same general nature in a warrant is not good ground for quashing it. (p. 341).</p> <p>3. Same — Refusal of Defendant’s Motion for Bill of Particulars is Within Court’s Discretion.</p> <p>Refusal to grant defendant’s motion for a hill of particulars in a criminal case is within the sound discretion of the trial judge, and the appellate court will not reverse for that reason unless it is clear that defendant has heen prejudiced thereby, (p. 342).</p> <p>4. Intoxicating Liquobs — Admitting Evidence of Defendant’s Reputation Held Error.</p> <p>In the trial of a criminal case wherein the defendant is charged with having in his possession, for sale, spirituous liquors contrary to law, It is error to admit evidence of the reputation of defendant as a dangerous man or as a violator of the prohibition laws, over his objection, when he has brought neither into question. (p. 344).</p> <p>5. Same — Finding Liquors on Defendant’s Premises Held Prima Facie Evidence of Ownership and Unlawful Use.</p> <p>The finding of spirituous liquors in large quantities, secreted in the ’dwelling-house, out-house and in the weeds in the yard of the dwelling house of defendant, by officers, under a lawful search warrant, is prima facie evidence of defendant’s ownership and unlawful use thereof. (p. 344).</p> <p>6. Criminal Law — Instruction That Finding Them Malees Prima Fade Case Held Error, Notwithstanding Other Instructions.</p> <p>In a trial on a warrant for unlawfully manufacturing, selling, offering, exposing, keeping and storing for sale spirituous struction is given on defendant’s motion telling the jury that “that un’der the provisions of the prohibition law of this State, the finding of intoxicating liquors on the premises of the defendant by the officers of the law under a search and seizure warrant makes a .prima facie case, and if the defendant would remove this presumption, the burden is on him to show by a preponderance of the evidence that he had said liquors for a lawful purpose,” even 'though another instruction is given on defendant’s motion telling the jury that guilt of the defendant must be established from the evidence “by full proof,” that is by evidence which satisfies the mind of the jury to the exclusion of every reasonable doubt, and that neither a mere .preponderance of the evidence or any weight of preponderant evidence is sufficient for the purpose unless it generates full belief of the guilt of the accused to the exclusion of any reasonable doubt. (p. .344).</p>

<p>1. Mines and Minerals — Agreement that Purchaser Have One-Fourth Oil Lease Delay Rentals Held Not to Require Vendor to Account for Only One-Eighth on Theory that He Owned Only Half of Lease.</p> <p>A contract by which one party sells to another a tract of land, except the oil and gas therein, and in which the vendor agrees that the vendee shall have one-fourth of any delay rentals arising from any oil or gas lease- then on said tract of land, or that may thereafter be placed thereon, will not be construed so as to require the said vendor to account for only one eighth of such delay rentals upon the theory that he only owns one-half of the oil and gas under the land at the date of the contract. (p. 349).</p> <p>2. Contracts — Parties’ Contemporary Construction May he Entitled to Great Weight, hut Such Acts must he Free from Constraint and Not Doubtful.</p> <p>While a contemporary construction placed upon a contract by -the parties in execution thereof is entitled to great weight, and sometimes to controlling weight, in determining the meaning of equivocal or doubtful provisions, the acts relied upon as constituting such construction must be free from constraint, with full knowledge of their import, and not of a doubtful or dubious character. (p. 349)..</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Action by B. H. Blagg, as administrator of the estate of Zachariah Yan Sickle, deceased, against Gibert Van Sickle and others, in -which the court decreed a conveyance to Robert Young and wife of a part of the real estate but denied them relief as to the remainder, and they appeal.</p>

<p>Appeal from Circuit Court, Roane County.</p> <p>Suit by the State of West Virginia against Caroline Ser-gent and others. Decree for plaintiff, and defendant Caroline Sergent appeals.</p>

<p>Indictment and Ineokmation — Indictment Alleging Two Possible Repugnant Dates, One of Which is Barred, is Bad.</p> <p>An indictment for a misdemeanor which alleges two possible but repugnant dates as the time of the commission of the offense, by one of which, if correct, the offénse would be barred, is bad on demurrer, and should on motion of the accused be quashed. Such defect in the indictment is not cured by section 10 of chapter 158 of the Code.</p>

Action by Harry H. Hickel and others against Abie Starcher and others in ejectment. Judgment for plaintiffs, and defendants bring error.

Action of ejectment by Robert N. Green and others against T. A. Abbott. Judgment for the plaintiffs, and the defendant brings error.

<p>Trusts — Bill to Establish Resulting Trust in Minerals Held Subject to Demurrer for Laches.</p> <p>Where after many years of unexplained delay plaintiffs file their hill to establish a resulting .trust in all the coal and other minerals under a tract of land, depending wholly on parol evidence, show that the rights of thitrd parties have intervened and that a purchaser of the coal whom they allege had notice of the trust has died and seek relief against his devisees, and also seek relief against the purchasers of the oil and gas interests, alleging notice of the trust to them, such delay unexcused constitutes laches, and a demurrer to the hill on that ground is properly sustained.</p>

' Suit by J. E. Baughman, administrator of the estate of C. W. Bowen, deceased, against E. D. Hoffman. ' From a decree in favor of the defendant, the plaintiff appeals.

<p>1. Reformation of Instruments — Equity May Reform a Contract for Mutual Mistake, But Not one Fully Executed in the Manner in Which it is Sought to he Reformed.</p> <p>While a court of equity has jurisdiction to reform a contract because of mutual mistake, there must be some practical reason for such reformation. If it appear that the contract which it is sought to have reformed has been fully executed by the parties in accordance with the contention of him who seeks reformation, a court of equity will not take jurisdiction to have the writing corrected so as to show the real agreement as the same has been fully executed by the parties. (p. 400).</p> <p>2. Contracts — One Not a Party Nor in Privity Cannot Maintain Law Action Thereon, Unless Contract was for His Sole Benefit.</p> <p>One not a party to a contract nor in privity with either of the parties thereto may not maintain a suit at law thereon, unless the .promise or undertaking relied upon is made for his sole benefit. (p. 400).</p> <p>3. Same — -Buyer’s Promise- to Pay Seller’s. Debt to Third, Party is Mot for Third Party’s Sole Benefit.</p> <p>A promise ma'de by a purchaser of personal property to pay a debt which the seller owes for such property to a third party is not for the sole benefit of such third party, (p. 401).</p> <p>4. Same — Creditor May Recover from One Agreeing to Become Primarily Liable for Another’s Debt.</p> <p>Where one agrees with another to become primarily liable for a debt due from that other to a third person so that as between the parties to the agreement the first becomes the principal and the second the surety, the creditor may in equity upon the doctrine of subrogation, maintain a suit to recover the amount of such debt from the person so assuming to pay the same. (p. 401).</p>

Petition, after grant of a divorce, by Martha Katherine Hodges against Annis Boggs for the custody of the parties’ infant son, and petition in habeas corpus by said Hodges to procure possession of such son, Carl Franz Boggs, which resulted favorably to Martha Katherine Hodges, and the defendant, Annis Boggs, brings error. Heard with a petition in this court by said Carl Franz Boggs, by next friend, for a writ of habeas corpus to inquire as to his further custody.

<p>1. Rah,Roads — •Traveler’s Contributory Negligence in Not Using Senses Held Question of Law.</p> <p>It is generally the duty of one approaching a railroad track to stop, look and listen in both directions, and when there is nothing to obstruct his view or hearing of an approaching train before he steps upon the track, and if without using his senses of sight and hearing he steps on the track directly in front of such train and is injured, the question of his negligence contributing to his injury becomes one of law for the court, and not for the jury. (p. 414.)</p> <p>2. Same — ■Greater Diligence Required of Traveler mth View Obstructed by Cars.</p> <p>In such case the fact that there are freight cars standing on a side track, obstructing to some extent the view and hearing of one approaching the track, requires from him greater caution and increase of diligence in the exercise of his faculties and senses to avert injury .to his person, and if by such caution and diligence he could have seen the train that did him the injury, it' is no excuse that he did not see it, if by reasonable and fair use of his faculties an'd senses he ought to have seen it. (p. 416).</p>

Error' to Circuit Court, Randolph County. • Action by George E. Davis against W. H. Fisher. Yerdict and judgment for plaintiff, and, from an order denying a motion to set aside a verdict and for a new trial, the defendant brings error.

Suit by tbe Most Worshipful Grand Lodge of Ancient, Free and Accepted Masons of West Virginia and others against Most Worshipful Prince Hall Grand Lodge of West Virginia, A. F. & A. M. and others. From a decree dismissing its bill plaintiff prosecutes this appeal.

Action by the Appalachian Power Company against James D. Tate to recover a balance claimed upon an account for goods sold and delivered. Judgment for the defendant, plaintiff’s bill dismissed, and the plaintiff appeals.

<p>. Taxation — Sale of Land for Benefit of School Fund — Parties Necessary.</p> <p>Where a suit is brought by the state to subject real estate to sale for the benefit of the school fund, and the state’s title is 'derived from a tax sale made ini the name of a former owner, but after he had conveyed the land to another whose title is of record, such grantee is a necessary party to such suit. (p. 439).</p> <p>2. Same — Sale of Land for Benefit of School Fund — Remedy of One Necessary as a Party to Suit who was not Made a Party Thereto.</p> <p>Such a purchaser from the person in whose name the land was returned delinquent for taxes, if not made a party to such school land suit, may maintain a bill to set aside a sale made therein, where he contends that the state had no title to such real estate at- the time of the sale thereof by the school land commissioner, because the delinquent litet under which the sale was made by the sheriff was void, or because any title acquired by the state was transferred to him under the provisions of the Constitution because of his possession of and payment of taxes on such real estate. (p. 439).</p>

<p>1. Taxation — Boards of Equalization and Review — Jurisdiction of Circuit Court to Review Question of Taxability of Assessed Property.</p> <p>The, circuit court by section 129, chapter 29 of the Code, has jurisdiction upon appeal to review and correct the rulings and orders of the board of equalization and review, not only upon the question of valuation, but upon the question of the taxability of the property assessed. (p. 443).</p> <p>2. Same — Appeal to Circuit Court Proper Remedy to Review Action of Board of Review and Equalization.</p> <p>Neither the repealing clause of chapter 50, Acts 1911, nor the provisions of section' 132a thereby added to said chapter 29. of the Code, specifically or by implication repealed or took away the jurisdiction of the circuit court to review the orders or rulings of the board of equalization and review conferred by said section 129 of chapter 29 of the Code, as theretofore interpreted by this court. The remedy by application to the county court given by said section 132a is not an exclusive but a cumulative remedy, and is not inconsistent with the remedy by appeal, given By said section 129. (p. 444).</p> <p>3. Same — Equity Ras no Jurisdiction to Correct Voidable Assessment.</p> <p>These statutory remedies being complete and ample, equity has no jurisdiction to correct a voidable assessment of property for taxation, (p. 445).</p> <p>4. Same — Board of Revieio and Equalization — Review of Orders —Procedure.</p> <p>The circuit court ■ is not deprived of jurisdiction to review and correct the orders and rulings of the board of equalization and review on the question of the taxability of property because such hoard has certified the facts proven instead of the evidence of the witnesses, when no objection or exception to that form of certifying the evidence was interposed, (p. 445).</p> <p>5. Same — Exceptions from — Masonic Lodges When Not Held and Leased ont for Profit.</p> <p>Lodges and orders of Free and Accepted Masons are charitable and benevolent bodies, and their property, when used solely for charitable and benevolent purposes and not hel'd or leased out for profit, -is-^ by the laws of this State exempt from taxation, and if erroneously assessed, such assessment may be avoided by the aggrieved order or corporation holding such property,, by the proceedings provided by statute, (p. 448).</p> <p>6. Same — Gha-ritaMe and Benevolent Orders — Laxo Governing Taxation of Fraternal Benefit-Societies not Applicable.</p> <p>The provisions of section 30 of chapter 55A of the Code, which exempts the funds of fraternal benefit societies but not their real estate an'd office equipment, has no application to the property of charitable and benevolent orders held and used exclusively for charitable and benevolent purposes. That statute applies solely to fraternal orders with insurance and other benefit features connected therewith, (p. 451).</p>

<p>1. Divorce — Husband Held Not Entitled to Divorce on the Ground of Desertion.</p> <p>When the husband consents to and aids his wife in removing from the home then provided to another in another county, and agrees to follow her there soon afterwards, and he does go and for a short time lives and cohabits with her at the new place/ of residence, and where with his consent she has contracted to live and take care of an uncle during his life on condition that he will deed her his property including the house in which she resides, she is not guilty of deserting her husband at the time of such removal, entitling him to a divorce from the bonds of matrimony, or to any relief against her. (p. 460).</p> <p>2. Same — Defendant wife Held Entitled to Divorce for Husband’s Refusal, to live with and Support Her.</p> <p>On the other hand, if after such removal by the wife, the husband refuses to contribute to his own or the support of his wife and children at the new place of residence, and because she refuses to support him there without such assistance he then leaves her and refuses to live with her, and is guilty of other conduct evidencing such intent, he is guilty of deserting her, entitling her upon a cross-bill showing such facts, t'o a decree of divorce from bed and board, and for alimony against him. (p. 461).</p> <p>3. Same — Facts Held to Show ivife Entitled to Alimony in a Gross Sum, Payable in Installments, on her Divorce from Bed and Board.</p> <p>In such case, where it appears that the wife has been obliged to work out for many years to obtain money to suitably maintain and support herself and their children, and to assist and has thereby assisted materially in paying for the farm on which they have lived for many years and for other property, the court on decreeing her a divorce from bed and board may award her a reasonable sum in gross in lieu of alimony, payable in installments, and make the same a lien on the husband’s real and personal estate. (p. 462).</p>

Action by Dexter & Carpenter, Inc., against tbe Co-operative Fuel Company. Verdict and judgment for plaintiff, and the defendant brings error.

Action by Walter H. Lewis against the Welch Wholesale Flour & Feed Company and others. Directed verdict for the defendants, and the plaintiff brings error.

Proceeding by the state on the relation of Amelia Wright, against Oscar L. Bennett for the nonsupport of an illegitimate child and being denied a jury trial, on question of paternity of the child, the defendant brings error.

<p>Error to Circuit Court, Mineral County.</p> <p>Action by L. W. Myers against John Summerville and others. Action dismissed as to Summerville, and judgment entered against the defendant Emmons. Coal Mining Company, which brings error.</p>

Suit by Homer Roush against Rosa Roush for divorce. Judgment for plaintiff for divorce from bed and hoard, and awarding him the custody of their four children, and awarding the defendant $25 per month alimony, and she appeals.

<p>ancl States that She Became Pregnant as a Result Thereof, and Had a Miscarriage, Physician’s Expert Testimony as to Age of Foetus Held Admissible to Show Pregnancy by Another than Defendant, as Tending to Show Consent. 1. CRrMn~AL LAW-Where Prosecu~tr'tx Fixes Time of Assaxit</p> <p>In a prosecution for rape, where the prosecutrix fixes the time and place of the assault and testifies that as a result thereof she became pregnant, and had a miscarriage within three months from the time of the assault, and that she never had other sexual intercourse either before or after the time of the assault, testimony of the physician, who attended her miscarriage, to the effect that the foetus 'had been conceived “in the neighborhood of 3 to 4 months” prior to its delivery, is admissible as tending to show that the prosecutrix had become pregnant by some other person, and as tending to prove consent, thus sustaining defendant who swears he had intercourse with her by her free consent, (p. 503).</p> <p>as Result of Rape and Had a Miscarriage Within Three Months, and Attending Physician Stated Sex of Foetus was Easily Ascertained. Other Physicians’ Testimony That Such Could Not be Ascertained Unless Four Months Old Held Admissible. 2. SA~rE-W1vere Pro$ecwtricc Tesfrifled ~1be Became Pregnant</p> <p>In such case, 'where the attending physician swears that the sex of the foetus was easily ascertained by casual examination, evidence of other physicians is admissible to prove that the sex of a foetus cannot he ascertained by such inspection until four months from the date of its conception, (p. 503).</p> <p>Material Evidence, Affidavit of Absent Witness Should be Admitted or Hearing Postponed. 3. S~~rE-Where Defenaai~t Will Otherwise be Deprived of</p> <p>Where it is plainly apparent that a misunderstanding has innocently arisen between opposing counsel as to the introduction of an affidavit at tlie trial' in lieu of tlie testimony-of a witness who has been summoned hut who has left the State on urgent business, and whose evidence is material and vital to the defense in a prosecution for rape, and by reason thereof defendant will be deprived of such evidence, the court »should either permit such affidavit to be admitted as evi- ■ dence, or continue the hearing until the attendance of such witness could be procured, (p. 505).</p> <p>4. Same — New Trial Awarded Wibere Defendant Has Been Deprived of Material Testimony Toy Surprise.</p> <p>Where a defendant in a criminal case, without fault on his part, has been deprived of material and vital evidence in his defense by surprise, thus preventing a fair trial, the verdict should be set aside and a new trial awarded, (p. 508).</p>

Suit by Martha Bulick, as administratrix of the estate of Joe Bulick, deceased, against P. L. Milkint and others. Decree for the plaintiff, and defendants appeal.

<p>Error to Circuit Court, Tucker County.</p> <p>Jesse Constable was convicted of non-support and brings error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action in assumpsit by John J. Thayer against James A. Holley. Verdict and judgment for plaintiff, and defendant brings error.</p>

Action by C. J. Taylor and others as partners against tbe Sturm Lumber Company. Judgment for tbe plaintiffs, and tbe defendant brings error.

<p>Appeal from Circuit Court, Tucker County.</p> <p>Suit by Peter Mashuwas against A. F. Bennett to set aside a-tax deed. Decree for plaintiff, and defendant appeals.</p>

Action by the New Eagle Gas Coal Company against Matt Burgess in detinue for the possession of one electric generator and a steam engine. Verdict for defendant, plaintiff’s motion for new trial denied, and plaintiff brings error.

<p>Appeal from Circuit Court, "Wirt County.</p> <p>Suit by William Woodyard, as administrator of the estate of Harry Sayre, deceased, against Lizzie Sayre and others, and, from a decree therein, the defendant H. P. Bode appeals.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Harry Lattimar was convicted of rape, and be brings error.</p>

<p>1. Waters and Water Courses — Oioner of Ditch is Liable to Adjoining Oioner for Erosion and Loss of Subjacent Support of Structure.</p> <p>While an owner of real estate may construct thereon a drain for the purpose of gathering and conveying thereover the surface water, he will he liable for damages sustained by an adjoining owner from the washing away of his soil by the erosion of the water in the ditch, as well as for damages to any structures upon the land of such adjoining owner, which are injured by being deprived of their sub-jacent support by the erosion of the water in such ' drain, (p. 566). '</p> <p>2. Same — Measure of Owners Damages From Erosion from Drain Held to be the Cost of Repairs and Restoring Property to Former Condition.</p> <p>Where an injury to property is inconsiderable .in extent as compared with the value of the property, and can easily be repaired and the property restored to the condition in which it was prior thereto, and the owner does so restore it, ordinarily his measure of damages is the cost of making such repairs and restoring the property to its former condition. (p. 567).</p>

<p>1. Physicians and Surgeons — Evidence Held Not to Prove Negligence of Physicians or Nurses.</p> <p>In an' action to recover damages for alleged malpractice by physicians and surgeons operating a private hospital in which the plaintiff was treated for a serious wound of the leg, developing gangrene rendering amputation necessary, within forty-eight hours after it was properly dressed and the broken bones set, and in the temporary absence of the attending physician, but while the patient was attended by competent nurses and the hospital by an assistant physician and surgeon competent in all respects, whom the nurses where instructed to call, if necessary; evidence to the effect that the leg was gangrenous to the knee and discolored for a space of two or three inches above the knee at 2 or 3 o’clock P. M. of the second day, and that, in the opinion of a physician who saw it then, it could not have been in good condition at 10:30 A. M. of that day, taken in connection with proof that, in the morning, there was evidence of lack ■of circulation but no constriction nor, gangrene, that efforts by approved methods, on the part of the nurses and assistant physician, to restore or increase circulation, had been constantly made throughout the forenoon and development of the trouble carefully watched until 2:30 P. M., does not appreciably tend to prove negligence on the part of the attending physician, in temporarily leaving the patient, or providing for his care and emergencies in his absence, nor on the part of the nurses and assistant physician, in respect of care and treatment of the patient, and an instruction assuming -the existence of evidence appreciably tending to prove liability on such grounds, under such circumstances, cannot properly be given. (p.573).</p> <p>2. Same — Physicians Held Not IAable for Mere Errors in Judgment.</p> <p>Nor, assuming that the operating physician, before leaving late in the evening of the first day, visited the patient, or should have done so, and, if he did, saw or should have seen the chart disclosing a slight rise in temperature, pulse and respiration, could the court properly instruct the jury, upon that fact and the nature of the wound that he was negligent in temporarily absenting himself on a business mission, because such facts, taken in connection with the later' developments, constitute no appreciable evidence of such negligence. A physician is not liable for mere errors of judgment, (p. 578).</p> <p>3. Same — Unqualified Instruction That it Was Hospital Physician’s Duty to Notify Parents Promptly of Necessity of Operation Held Error.</p> <p>If, in such case, it is shown that, when the necessity of amputation became certainly known at 2:30 o’clock P. M. of the second day, efforts were made to apprise the parents of the patient, a young boy, of the situation and obtain their cpnsent to amputation of the leg, by the assistant physician, but that the father was absent and the mother not found for several hours thereafter, and that, when notified, she protested against operation without the assent of her husband who did not return until 9 o’clock P. M., and who, upon his return, refused to permit the assistant physician to perform the operation, it is error to instruct the jury unqualifiedly that it was the duty of. the assistant physician promptly to notify the parents or grand-parents of such necessity, the grandmother who was at the hospital not being shown to have had any authority to assent to the amputation, and it not being known to the physician, that the boy resided with his grandparents, (p. 579).</p> <p>4. Same — Facts Held Not to Show Negligence on the Part of Nurse.</p> <p>A nurse left in charge of a patient suffering from a compound comminuted fracture of the leg, by the operating surgeon, after the bones have been set and wired and the leg enclosed in a plaster of paris cast, with instructions to watch the patient carefully, during the temporary absence of such physician, and, in case of swelling, to cut the cast, and, if necessary, call an assistant physician on the staff of the hospital in which the patient is, both physicians being on that staff, is not negligent in awaiting the coming of the assistant within two or three hours, on his regular tour of the hospital and visitation' of patients, after having cut the cast, resorted to appropriate treatment, on discovery of unfavorable symptoms, and vainly endeavored to communicate with him by telephone, it being within her province to determine the necessity of his attendance, in point of time, and the jury cannot properly be instructed, In .such case, to find for the plaintiff, on the theory of negligence on the part of the nurse, in failing to call the physician' at once, by messenger. (p. 581).</p> <p>5. Same — Facts Held Not to Show Negligence in Failing to Discover Gangrene Sooner.</p> <p>If, on discovery of indications of lack of sufficient circulation in a leg so injured, 'dressed and treated, on the morning of the second day, the cast is cut at 8 o’clock, A. M., external heat applied to stimulate circulation, the bandages cut and the leg exposed and examined by the assistant physician, at 10:30 o’clock A. M. and the treatment continued and gangrene discovered at 1 or 2 o’clock P. M., failure of said physician to completely remove the cast an'd bandages for the purposes of inspection, count the pulse and note it, take the patient's temperature, make inquiry of the nurses, as. to his condition during the preceding night, and read mediteal books, does not justify the giving of instructions submitting hypotheses of negligence in failing to discover necessity of amputation on the morning of that day, since such facts and circumstances do not constitute appreciable evidence of such negligence, (p. 583).</p> <p>6. Trial — In Malpractice Action for Not Sooner. Amputating a ■Gangrenous Leg, An Instruction Ignoring Evidence of Delay daused by Patient’s Parents is Erroneous.</p> <p>If, in such case, there is evidence tending to prove that, amputation at or slightly above the knee would have sufficed, if effected immediately after discovery of gangrene, and that, delay necessitated amputation at the hip, instructions to find for the plaintiff, upon the theory of negligence in delay of amputation, hypothetically given, but ignoring evidence tending to prove unwillingness of the parents of the patient, a young boy, to permit amputation by the assistant physician,, the only competent person then present, that had right to-perform the operation, under the rules of the hospital, and efforts to find the parents and apprise them of the necessity of amputation, are erroneous, (p. 585).</p> <p>7. Physician and Surgeon — That Surgeon, SJ/ Hours After-Dressing Wound, Temporarily Absented Himself Held Not Abandonment of Patient or Breach of Contract.</p> <p>Proof that a surgeon, after having properly dressed a wound' and found it itn apparently good condition twenty-four hours, later, temporarily absented himself, on business, leaving the' patient in the care of competent nurses and a competent, assistant physician and surgeon, constitutes no evidence of abandonment of his patient or breach of his contract, and does not justify an instruction based upon the theory of such, abandonment or breach, (p. 585).</p> <p>8. Trial — Instruction on Weight of Testimony of Expert and Nonexpert Witnesses Approved.</p> <p>Although in may instances the evidence of expert witnesses is entitled to much greater weight than that of non-experts, the jury are presumably as thoroughly cognizant of the fact as the court, it being one of common knowledge, wherefore .there is no impropriety in the giving of an instruction, in a case in which the issue is largely dependent upon expert testmony, advising the jury to consider it and all of the other evidence and give it such weight as they think it is entitled to, and, further, that its value depends upon the circumstances of each case, to be ascertained by them. (p. 586).</p> <p>9. New Trial — Evidence Held to Warrant Setting Aside Verdict for Plaintiff.</p> <p>Under the facts and circumstances here indicated, it is the duty of the trial court, upon request, to give an instruction directing the jury to find for the defendants, and, failing so to do, to sustain a motion to set aside a verdict found in favor of the plaintiff, (p. 587).</p> <p>10. Trial — Court Need Not Repeat Instructions.</p> <p>A trial court is under no duty to repeat its instructions to the jury. (p. 588).</p> <p>11. Same — Refusing a Binding Instruction Which Would Base Verdict Upon an Inclusive Fact is Not Error.</p> <p>There is no error in the refusal of • a binding' instruction which, if given, would make the verdict turn upon an inconclusive fact, if found under submission of an issue as to it. (p. 588).</p> <p>12. Witnesses — May Not Testify as to Matters Beyond Personal Knowledge.</p> <p>A witness is not entitled to testify as to matters of which he has no personal knowledge, (p. 588).</p> <p>13. Appeal and Error — Party May Not Complain of Answer Responsive to His Own Question on Cross-Examination.</p> <p>A party cannot complain of admission of an answer responsive to a question propounded to a witness, by himself, on cross-examination, (p. 588).</p> <p>14. Physicians and Surgeons — On Issue of Delay in Operation it is Permissible to Show That Hospital Rules Forbade Outside Physicians Operating Therein.</p> <p>Upon an issue as to injury by delay in performance of a surgical operation in a private hospital, when a physician not connected with it might hare operated promptly, it is permissible to prove that a rule of the institution forba'de operation therein by surgeons not connected with it. (p. 588).</p> <p>15. Evidence — On Second Trial Preserved Testimony of Witness at First Trial is Admissible on Proof that he Has Since Left the State.</p> <p>In a second trial of a civil case, the preserved testimony of a witness in the first trial is admissible on proof that he has since left the state and his attendance cannot conveniently be procured, (p. 588).</p> <p>16. Same — Expert’s Testimony is Not Rendered Inadmissible Because of Variance from His Former Testimony or That of Other Experts.</p> <p>Variance of the testimony of an expert witness in a second trial from his evidence in the first an’d from that of other experts, if any in either respect, does not render it inadmissible (p. 588).</p> <p>17. Physicians and Surgeons — Surgeon May Prove Custom of Having Assistant Galled in Case of Necessity and Assistant’s Competency.</p> <p>On an issue as to negligence on his part, a surgeon of a hospital having an assistant, may prove his custom to have the assistant called, in case of necessity, in his temporary absence, and also facts tending to prove the competency of the assistant, by his own evidence and the hospital records, even though it is admitted in the general sense of the term, “competency.” (p. 588).</p> <p>18. Witnesses — A Witness May Refresh Memory from a Document Made by Another from Data Furnished by Witness in Course of Business.</p> <p>A witness may refresh his memory from a document made by another from data furnished by him, in the usual and ordinary course of business, (p. 589).</p> <p>19. Evidence — Upon Issue Whether Gangrene was Caused by Constriction of Bandages or by Infection, Experts Testimony as to the Time the Former Would Prove Fatal is Admissible.</p> <p>Upon an issue involving an inquiry as to whether a case of gangrene was produced by constriction of bandages or by gas-bacillus infection, the opinion of an expert as to. the time in which gangrene of the former kind would ordinarily prove to be fatal, is admissible, (p. 589). . .</p>

<p>’ 1. J odsment — Prescribed Affidavit Must Save Been Served on Defendant to Warrant Judgment on Open Account, by Motion After Notice.</p> <p>Tó be available for the purposes and functions assigned to it, by provisions of sec. ch. 121, Code, the affidavit therein prescribed, must have been served on the defendant in the action, and service thereof in the time and manner provided must be proved by a return or otherwise, (p. 591).</p> <p>2. Same — In Proceedings for Judgments on Account for Merchandise, by Motion After Notice, Affidavit’s Omission of Reference to Notice and Demand Held Fatal.</p> <p>Omission of any reference to the notice and the demand or demands therein stated, in such affidavit, is fatal and deprives it of all force and effect, (p. 591).</p> <p>' 3. Same — Affidavit Must Save Been Made Before or at the Time of Service of Oopy of Account for Judgment by Motion , After Notice. ■ . ■</p> <p>■ To be effective, such affidavit must have been made before or at the time of service of the notice and a copy of the account to which it is annexed, (p. 591). . 4. Same — Judgment on • Open Account Based on Fatally Defective Affidavit Seld Erroneous.</p> <p>A judgment taken upon an open account, the amount of which affirmatively appears hy the judgment order, to have been proved only by a fatally defective affidavit, on an inquiry of damages, in a proceeding for judgment by motion, under the provisions of sec. 6, ch. 121, Code, in which the defendant appeared on execution of the writ of inquiry and objected to the use of the affidavit and had his exceptions to the rulings of the court, preserved upon the record, is erroneous, (p. 592).</p>

<p>Appeal from Circuit Court, Raleigb County.</p> <p>Suit by F. C. George against Herbert Stansbury and others. Decree in favor of plaintiff, and defendant • Herbert Stansbury appeals.</p>

<p>Error to Circuit Court, Boone County.</p> <p>Burton Cook was convicted of owning, operating, maintaining, and having in his possession a moonshine still, and he brings error.</p>

<p>1. Landlord and Tenant — Lease Signed Only by Lessor and Carried Out by Lessee Deemed Accepted by Lessee, and Binding on Both Parties and Purchaser With Notice.</p> <p>Where the negotiations of the parties for the lease of real estate are reduced to writing in the form of a written deed or lease, which contemplates the signature of hoth parties thereto, but which is only signed by the lessor, and is delivered to thé lessee and retained by it, and the lessee moves into the premises and occupies the same in accordance with the terms of said lease for á considerable length of time, and the lessor recognizes the validity thereof in a deed made by him to one who subsequently purchases the property from him, such acts and conduct will be construed to be an acceptance of the lease upon the part of the lessee binding both parties to the terms thereof, notwithstanding non-execution of the paper upon the part of the lessee, an'd a purchaser o.f the property from the lessor, with notice of such lease, will be bound by its terms, (p. 611).</p> <p>2. Deeds — Wo Particular Formal Words of Grant Are Necessary to Validity.</p> <p>No particular formal words of grant are necessary to the validity of a deed. If the intention to grant or convey the real estate, or an interest therein, clearly appears from the deed of conveyance, it will be as effective as though formal words of grant were used. (p. 612).</p>

<p>Error to Circuit Court, Mineral County.</p> <p>Action by Mary R. Harness, administratrix of- the estate of C. E. Harness, deceased, against the Baltimore & Ohio Railroad Company and Walker D. Hines, Director General of Railroads, in which L. 0. Mott, as administrator,, was substituted for the plaintiff and James Davis, Agent, etc., was substituted for the defendant Walker D. Hines and for the Railroad Company.. Verdict of not guilty and judgment of nil capiat against the plaintiff and the plaintiff brings error,</p>

<p>1. Indictment and Information — Joinder of Felony and Misdemeanor in Same Count.</p> <p>Generally a felony and a misdemeanor can not be joined in tbe same count in an indictment, but by way of exception to this general rule this may be done when the misdemeanor charged is necessarily, as in this case, included in the greater offense, (p. 629).</p> <p>2. Criminal Law — Appeal—Harmless Error.</p> <p>Though some improper evidence may have been admitted on the trial of an indictment, yet if from all the facts and circumstances shown it clearly appears that the jury could not have been misled or improperly influenced thereby, such improper evidence will be regarded as harmless and not reversible error, (p. 630).</p> <p>3. Ckiminai Law — Juey—Competency of Juror Who Has Expressed Opinion as to Defendant’s Q-uilt.</p> <p>Where a juror on his voir dire shows himself fully qualified to sit as one of the triers of an indictment, the general verdict will not he set aside because of his prior expression of opinion of the guilt or innocence of the accused based on reports or newspaper accounts of the facts, when he has sworn on his voir dire that he is without prejudice or bias against the accused and that regardless of his previously expressed opinion he could give the' prisoner a fair trial on the law and the evidence adduced on the trial, (p. 630).</p>

<p>Forgery — Indictment for Forging Shipper’s Receipt, After Delivery of Goods, Quashed.</p> <p>The receipt of an express company given a shipper for goods to be transported, in -which the shipper, after delivery of the goods, raises the declared value thereof, for the purpose of using the same to establish the value of the goods, subsequently destroyed by fire, and in proof of his loss, does not constitute legal evidence on the question of such value, to the prejudice of the rights of the insurance company; and an indictment charging the shipper .with the forgery of such receipt, with innuendo for the purpose alleged, is bad on demurrer and should be quashed.</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Suit by George P. Alderson against the Horse Creek Coal Land Company and others. Decree for plaintiff and the Coal Land Company appeals. ■</p>

<p>1. Deeds — Deed Conveying Land in Consideration of Promise to do an Act Carmot he Set Aside for Mere Failure to Perform.</p> <p>A deed executed and delivered to the grantee therein, in consideration of a promise to perform an act beneficial to the grantor, cannot be set aside on the mere ground of failure of performance of the promise, in the absence of peculiar circumstances making the performance, rather than the promise itself, the real consideration, as in the case of a conveyance upon condition that the grantee shall support the grantor, '(p. 649).</p> <p>2. ’Wills — Devisee of Remainder After Conditional Life Estate Cannot, After Acceptance of Devise, Revoke Acceptance and Cancel His Quitclaim Deed to Life Tenant for Misapprehension, Failre of Construction, or Fraud.</p> <p>If a devisee in a devise of a remainder in fee in land, whether vested or contingent, after conditional life estate therein, subject to a charge of legacies in favor of other persons,- executes and delivers to the life tenant a quit claim deed, by which the condition in the life estate is eliminated as to him, in consideration of a promise hy the life tenant to obtain an agreement by the legatees, postponing payment of the legacies until termination of the life estate, which fails of performance, and then accepts the devise, he cannot revoke or withdraw his acceptance and cancel the deed, on the ground of acceptance under- a misapprehension of his right, failure of consideration, or fraud in the transaction, (p. 650).</p> <p>3. Remainders — •Contingent Remainder May he Alienated by Reed or Will</p> <p>By virtue of sec. 5 of ch. 71 of the Code, a contingent re-, mainder in land is susceptible of alienation by deed or will, (p. 651).</p> <p>4. Wills — Devise of Remainder Subject to Legacies is Presumed Beneficial, and Vests Legatee with Right Superior to Option or Offer of Conveyance in Consideration of Payment of Legacies.</p> <p>A devise of such a remainder made onerous by reason of a charge of legacies thereon, in consequence of -which the devisee might deem it advisable not to accept it, is nevertheless presumed to be beneficial to him, and it vests a right in him superior to a mere option or offer of conveyance to him in consideration of his payment of the legacies, (p. 651).</p> <p>£. Deeds — Escrows—Delivery by a Grantor to Grantee is Absolute and Cannot be so Made in Escrow.</p> <p>Delivery of a deed to the grantee by -the grantor is absolute. A deed cannot be so delivered in escrow, (p. 652).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by A. S. Booker • against Lake and Export Coal Corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Arbitration and Award — Provision That Parties to Lease for Goal Mining Purposes Will Submit Controversy to Arbitrators Will Not Prevent Suit by Either Party for Asserting Bights Under It.</p> <p>A provision in a léase of land for coal mining purposes providing that any controversy between the lessors and lessee, arising thereunder, shall he submitted to arbitrators and to an umpire in case of disagreement, and designating how the arbitrators and umpire shall be selected, "will not prevent either party from maintaing suit to assert his rights under it. (p. 662).</p> <p>2. Same — Arbitration Clause in Coal Lease for Mining on Royalty Basis Will not Prevent a Revocation of Agreement to Arbitrate or a Resort to Courts for Adjudication of Rights.</p> <p>Provision in an arbitration clause in a lease of land for mining coal on a royalty to the lessor, that upon failure of either party to appoint an arbitrator the other may make an appointment of two arbitrators, and the two so appointed may select an umpire, does not prevent a revocation of the agreement for arbitration, nor prevent a resort to the courts in the first instance for a vindication of rights under the lease, (p. 663).</p> <p>3. Mines and Minerals — Lease—Construction—Royalties.</p> <p>Where a lease of land for mining coal stipulates that a fixed sum for each ton of coal mined shall be paid the lessor as royalty, but if the coal is sold to the consumer for a price above ninety cents per ton then the lessee shall pay, in addition to the fixed sum, ten per cent of the price in excess of ninety cents; and the lessee increases its price to consumers by the addition of 45 cents per 'ton under a permissive order of the Federal Fuel Administrator, which order allows such increase op. condition that a corresponding increase per ton be added to wages of lessee’s miners, and the lessee sells its coal to the consumer at $2.50 per ton, and increases the wages of its miners in accordance with the condition of the permissive order, the lessee, in computing royalties to be paid to its lessor, is not permitted to first deduct the 45 cents from the price of the coal sold to the consumer and calculate the excess royalty on the remainder left above 90 cents per ton. The lessor is entitled to receive royalties based on the full price paid by the consumer, (p. 664).</p> <p>4. Same — Lease Construed to Inhibit the Expense of Selling Coal to be Deducted from the Sale Price Before Computing Royalties.</p> <p>Where there is a provision in a coal mining lease that royalties shall be paid the lessor on a basis of the price at which the coal is sold to the consumer, the lessee is not justified, in computing the royalty, to subtract commissions paid to a selling agent from the sale price of its coal, and calculate the royalty on the sum remaining. The expense of selling the coal is an ordinary and necessary expense of the operation, and should not be deducted from the sale price before computing royalties, (p. 668).</p> <p>5. Accord and Satisfaction — Liquidated, Damages — Payment of Less Than Sum Due Not a Satisfaction of the Debt if There he no Release Under Seal or New Consideration as to Part Unpaid.</p> <p>“Payment by a debtor and receipt by a creditor of a less sum than is due upon an undisputed liquidated demand is not satisfaction of the debt, although the creditor agrees to accept it as such, if there be no release under seal or no new consideration given as to the part left unpaid.” (Nixon v. Kiddy, 66 W. Ya. 355.) (p. 669). .</p> <p>6. Settlement — Mistake.</p> <p>Any item omitted by reason of mistake or inadvertence from a stated and settled account, growing out of ordinary business transactions, may be recovered in an appropriate legal action, (p. 771).</p>

<p>1. Contracts — Acceptance of Order Sent l)y Dealer to Manufacturer and Statement of Letter that he will Fill Same if Given a Chance and Other Conduct of Parties so Indicating may Make such Order Basis of Valid Contract.</p> <p>Acceptance of an order sent by a lumber dealer to a manufacturer .of lumber may be inferred from conduct of tbe parties consistent only with the view that the said order constitutes a contract between them, such as the shipment of materials upon the order, statements by the seller that he will fill the same if given a reasonable chance, and other conduct indicating that the parties consider the order the •basis of a valid and binding contract, (p. 674).</p> <p>2. Same — Executory, Breach of- — Difference Between Contract Price and Market Price at Time and Place of Delivery as the Measure of Damages.</p> <p>Ordinarily the measure of damages for the breach of an executory contract of sale of personal property is the difference between the contract price and the market price at the time and place of delivery, (p. 679).</p> <p>3. Same — Executory, Breach of — Difference Between Contract Price and Market Price at Time of Seller’s Refusal to Execute Contract the Measure of Damages.</p> <p>Where there is no time fixed for the delivery of goods sold under an executory contract, the measure of damages to which the buyer is entitled, upon the seller’s refusal to execute the contract, is ordinarily the difference between the contract price and the market price at the time of such refusal, (p. 680).</p> <p>4. Same — Executory, Breach of, hy Seller of Personal Property— Buyer who purchases Other Goods in Place of Those not Delivered a Long Time After Breach not Entitled to Recover Difference Between Contract Price and That Paid Unless Price Paid was Same as Market Price at Time and Place of Delivery or at Time of Breach.</p> <p>Where the seller of personal property under an executory contract refuses to perform the contract in accordance with its terms, and the buyer purchases goods in the market to take the place of those not delivered under the contract, a long time after the breach thereof upon the part of the seller, he~is not entitled to recover the difference between meTcon-tract price and the price so paid by him in the absence of a showing that the price paid was the same as the market price at the time and place of 'delivery, or at the time of the breach, or that he in good faith promptly endeavored to procure the goods to take the place of those sold to him and not furnished, but was unable to procure the same in the market earlier than he did .purchase them (p. 680).</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Howard Tbomas against Monongahela Valley Traction Company, for a personal injury to bim while a passenger on one of defendant’s interurban cars. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Work and Labor — Presumption that Services Rendered for Member of Family are Gratuitous Generally Limited to Members Living Together.</p> <p>When services are rendered between members of the same family there is a presumption that they are rendered gratuitously, but generally such presumption applies only to- persons who are living together as members of the same family, and not to persons, though related, who do not so live together. (p. 700).</p> <p>2. Same — -In Nephews Action Against Uncle for Services Rendered Defendant as Having been Gratuitous, Evidence Held to Support a Verdict for Plaintiff.</p> <p>At the 'age of 12 years, plaintiff, .who lived with his parents, began working on his uncle’s farm about a quarter of a mile away. He continued such work for the most part until he was 42 years old, performing substantial and beneficial services, for the last seven years having practically' the entire management of his uncle’s 600 acres of land, including the raising and harvesting of crops, and care of about 50 .head of live stock; during part of this period he received from the farm small quantities of potatoes, pasture for a cow and colt, and some timber. He ma'de his home with his parents until he was married, at the age of 22, and then he and his wife continued living with them for about six years, when he moved with his family into and maintained a home of his own during the remainder of his period of service, at various places, varying from one to three miles from his uncle’s farm. For the last several years of service, he spent a considerable portion, but not all, of his nights at his uncle’s home, on account of his uncle’s feeble condition, there being no one else to care for him at night except that for part of the time a nurse was employed. In an action by plaintiff against the uncle for services rendered, the defendant, claimed that during the 30 years of service, plaintiff was a member of his family, and that the services were rendered gratuitously; such issue was properly submitted to the jury, and there being sufficient evidence to support. the verdict, it will not be set aside, (p. 700).</p>

<p>1. Appeal and Ekboe. — Order Quashing Attachment Issued in Chancery Court Cannot he Corrected on Certificate.</p> <p>An order quashing an attachment issued in a chancery cause if erroneous, can be corrected in this court only on appeal. It has no jurisdiction to make such correction upon certificate under the second paragraph of section 1, chapter 135, Code. (p. 705).</p> <p>2. Divobce — Where wife was Decreed an Absolute Divorce and Cause Dropped from Docket and Later Reinstated without Other Notice to Husband than Publication, an Alimony Decree then Rendered is Void.</p> <p>A decree was entered granting an absolute divorce to the wife but nothing was stated therein as to the custody of the infant children of the parties or as to alimony for the wife and the cause was dropped from the docket; at a subsequent term, on motion of the wife the cause was reinstated on the docket, without notice to the husband, other than by order of publication, and a decree was then entered, awarding the custody of the children to the wife and also permanent alimony. Such decree insofar as it awards alimony is void, (p. 708).</p> <p>3. Same — Wife’s Bill to Enforce Alimony Decree and for Necessaries Furnished Held Not Subject to General Demurrer, Although Based in Part on Void Decree.</p> <p>Subsequently • the wife filed her bill to enforce her decree for alimony as a lien upon defendant’s land and also to obtain a decree for necessaries furnished by her for the support of the children, procured an attachment against the land and asked that it might be sold to satisfy both liens. Such bill is good as against a general demurrer, notwithstanding it is in part based on such' void decree, (p. 707).</p>

<p>1. Master and Servant — Automobile Driver’s Agency for Owner Presumed.</p> <p>In an action for recovery of damages resulting from a collision -with, an automobile, proof that defendant was the owner of the automobile that caused the injury and that the injury was the result of the negligence of the driver thereof creates a presumption that the driver when the collision occurred was in the service of the owner and operating it on his account, (p. 711).</p> <p>2. Same — Automobile Owner’s Liability for Step-Daughter’s Negligence Depends on Agency.</p> <p>When property has been injured by the negligent operation of an automobile driven by the owner’s step-daughter, the owner’s liability depends upon whether the step-daughter was his servant and engaged upon his business at the time, (p. 713).</p> <p>3. Municipal Corporations — Automobile Not a Dangerous Agency.</p> <p>An automobile is not a “dangerous agency” so as to make its owner liable for injuries to travelers inflicted while being driven by another person, irrespective of the relationship of master and servant, (p. 714).</p> <p>4. Master and Servant — Automobile Owner Held Liable for Step-daughter’s Negligence.</p> <p>Where a person allows his step-daughter, who is a member of his family, to drive an automobile which he maintains for the comfort, convenience, pleasure, entertainment and recreation of his family, whereby the step-daughter negligently injures the property of a third party, the owner is liable; the step-daughter while so driving is acting in the furtherance of the owner’s'purpose, (p. 714).</p>

<p>' 1. Joint Adventures — Where One of Two Lessees Furnished- all the Money to Develop Property, He is Entitled to Reimbursements from Net Profits.</p> <p>Where one of two lessees accepts a lease of land to be converted into a profit producing investment and concedes to the other a one-third interest in the profits to be derived from the joint enterprise in consideration of the payment by the latter of a stipulated amount which he does pay, coupled with the assurance of an additional amount, which he does not furnish, to develop the property, and the lessee named in the lease does advance it, he is entitled to reimbursement out of the earnings of the enterprise, in the ascertainment of the amount of the net profits 'derived from the enterprise, (p. 721).</p> <p>2. Same — Not Entitled to Appropriate Profits for Salary in Absence of Express Agreement.</p> <p>In such case the lessee named in the lease, though the active manager of the leased premises, can not lawfully appropriate part of the revenues derived from the property for his own use, in the payment of a salary, in the absence of an express agreement to that effect, (p. 724).</p> <p>3. Same — Agreement Between Lessees Held, Not to Entitle Manager to Salary.</p> <p>Where there is no such agreement, and the lessee so named agrees to assume control and management of the property for and in behalf of himself and his associate in the enterprise upon the condition that his “energy” shall off-set interest on the amount so advanced and expended, the lessee so named is not entitled to and can not demand payment of a salary, (p. 724).</p> <p>4. Same — One Supplying All the Funds to Improve Property is Entitled to Reimbursement Before Distribution of Profits.</p> <p>Funds derived from the sale of the capital stock of a corporation, organized by the active party to a lease contract, made to supply funds necessary to improve the property leased, his co-lessee having promised to provide such funds, but having failed or refused to provide them, should be repaid, with interest thereon, out of the earnings derived from the property before a distribution of profits, if any result from the enterprise, (p. 724).</p> <p>5. Same — Damages Not Allowed for Defendant Joint Adventure’s Antagonistic Delay of Property Improvement.</p> <p>A case in which damages charged to the antagonism of one of two lessees against the other, said to have delayed the improvement of the property, are discussed but not allowed, (p. 728).</p>

Certified from Circuit Court, Wood County. Action by American Sugar Refining Company against Martin-Nelly Grocery Company. A ruling of the circuit court refusing to strike special plea was certified for review.

<p>1. Indictment and Information — Ordinarily an Indictment Charging Offense in the Language of the Statute is Suf- ' fieient.</p> <p>Ordinarily, where a statute creating an offense contains a statement of all of the facts necessary to constitute it, an indictment charging such offense in the language of the statute is sufficient, (p. 739).</p> <p>2. .Same — Indictment Charging Violation of Speed Law Held Not Bad Because Failing to Charge Particular Place of Offense.</p> <p>An indictment, charging a violation of a statute prohibiting the operation of motor vehicles upon certain parts of the ■ public roads in excess of a certain speed, is not bad because it fails to charge the particular point or place at which the alleged offense was committed, the act charged to have been committed being a violation of the law if committed anywhere within the county, (p. 739).</p> <p>3. Criminal Law — A Statute Creating an Offense Should Define the Necessary Acts with Such Certainty that One May Know When he is Violating it.</p> <p>An act of the Legislature creating a statutory offense should define the acts necessary to constitute such offense with such certainty that a person may 'determine whether or not he has violated the law at the time he does tlie act which is charged to 'be a violation thereof, (p. 741).</p> <p>4. Constitutional Law — Criminal -Law — Highways—Act Making it a Grime to Operate an Automobile Not Under Control Around Curve Held Invalid as Violative of the Hue Process Provision of Constitution and Void for Uncertainty.</p> <p>An act of the Legislature making it a crime to operate an automobile around a curve on a public road without having the same under control, or without reducing the speed thereof to a reasonable and proper rate, is violative of sections 10' and 14 of article 3 of the Constitution of this State, and is void for uncertainty and indefiniteness. (p. 741).</p>

Petition by R. A. Lusk for mandamus against the City of Williamson. Peremptory writ refused, and relief denied, and the plaintiff brings error.

Case Certified from Circuit Court, Taylor County. Action by Samuel Saffiel against Tbomas E. Woodyard. Certified for review of an order sustaining a demurrer to special counts and dismissing tbe action.

<p>1. Partnership — Persons Permitting Themselves to he Held Out ■ as Partners Held. Liable as Such in Trespass on the Case.</p> <p>In an action of trespass on the case for recovery of damages for'breach or violation of a duty arising out of a contract alleged to have been made between the plaintiff and the defendants, the latter being sued as partners, the defendants, though not actual partners, may he held to liability as if they were, upon proof of their haying held themselves out, or knowingly permitted themselves to he held out, as such, and knowledge of and reliance upon the representation, by the plaintiff, in the making of the contract, (p. 752).</p> <p>2. Same — Evidence of Separate Admissions Held Admissible to Prove Partnership.</p> <p>Evidence of separate • admissions of. the partnership relation by all of the parties sued as partners, taken together and considered as an entirety, is admissible in such case to prove that they were actual partners, at the time of the making of the contract, (p. 572).</p> <p>3. Same — Bill-Head Used in Business Held Admissible as Evidence of Partnership Relation.</p> <p>In connection with such evidence and proof of their close association in the business the defendants are alleged to have conducted, as partners, and within the scope of which the contract giving rise to the duty was made, a hill-head used in the business, bearing the names of the defendants, though not describing them • as partners, is admissible as evidence of the partnership relation alleged, (p. 752).</p> <p>4. BAMS-r-Evidenoe of Attendance on. Business, Association Therein, Presence in Eoeality Thereof, ete., Held Admissible to Fix Liability as Partners. ,</p> <p>In connection with the evidence above referred to and proof of frequent personal attendance upon the business, association therein and presence in the locality in which it is conducted, by the defendants, evidence of general reputation of the existence of the partnership, known to the plaintiff and relied upon by him, in the making of the contract, is admissible to prove liability of the defendants, as partners, by reason of their having held themselves out, or knowingly suffered themselves to be held out, as such, even though they are not actual partners, (p. 752).</p> <p>5. • Evidence — Physicians and Stjbgeons — In Action Against Phy-siciams Operating Hospital for Damages for Negligence in Performing Surgical Operation, Evidence of Plaintiffs Withdrawal After Injury Held Admissible.</p> <p>In an action against physicians operating a hospital, for damages alleged to have been occasioned by negligent injury in the performance of a surgical operation, evidence' of. the plaintiff’s withdrawal from the hospital after the injury, on account of lack of confidence in the surgeons, is inadmissible, (p. 754).</p> <p>6. Physicians and Stjbgeons — Admission of Testimony that the Law Requires Administration of Anesthetic by Doctor of Medicine Held Erroneous.</p> <p>. If, in such action, alleged unskilful administration of the anesthetic by a nurse is relied upon as a contributing cause of the injury, admission of testimony to the effect that the law requires such administration by a doctor of medicine is erroneous. (p. 754).</p> <p>7. Evidence — Denial of Thorough Cross-Examination of Expert, Giving Opinion that Administration of Ether by Nurse is Negligence, is Error.</p> <p>It is error to deny thorough cross-examination of an expert witness who has given it as his opinion, that administration of ether by a nurse is negligent, improper or unskillful treatment, (p. 755).</p> <p>8. Same — In Action for Damages for Negligence in Performing Surgical Operation, Admissions of Assisting Nurse Made, After the Operation Held Hearsay and Not Res Gestae,</p> <p>The admission of a nurse who assisted in the performance of a surgical operation, as to the manner in which it was done, made some days after occurrence of an injury alleged to have been caused by it, is not admissible evidence in an action to recover fori the injury, (p. 755).</p> <p>9. Same, — Hypothetical Question Founded on Such Assertions of Fact as are Necessary to Elicit Opinion Held Unobjectionable.</p> <p>A hypothetical question founded upon such assertions of fact, based upon evidence, as are necessary to elicit the opinion of the witness to whom it is propounded, upon its subject matter, is unobjectionable. It may properly ignore inconsistent and contradictory contention set up against its proponent, in the evidence, (p. 766).</p> <p>10. Same — Female Plaintiff in Action for Negligent Injury from Surgical Operation Cannot Testify that She was Rendered Incapable of Child-bearing Nor Give Her Physician’s Opinion.</p> <p>A female plaintiff in an action for damages for an injury alleged to have been negligently ■ done in a surgical operation, working malformation of some of her organs and general 'debility, is not competent to testify that, by reason thereof, she is incapable of child-bearing. Nor can she testify to an opinion expressed by her physician, to the effect that she is so incapacitated, (p. 756).</p> <p>11. Physicians and Stjbgeons — In Woman’s Action for Damages from Surgical Operation, Her Testimony to Loss of Sexual Inclination is Admissible.</p> <p>In such case, her testimony to her loss of sexual inclination, in consequence of the injury, is admissible, (p. 756).</p> <p>12. Customs and Usages — Evidence of Custom and Usage Not Admissible Unless Pleaded But May be Admitted as to Matters Merely Incidental or Collateral.</p> <p>Though evidence of a custom or usage relied upon as an element of a cause of action alleged is not admissible, unless the custom or usage has been pleaded, it is admissible as to matters merely incidental or collateral to the cause of action, (.p. 757).</p> <p>13. Partnership — Representations Estopping Parties from Denying that they were Partners Need, Not he Made in Person to the Party Relying Upon Them.</p> <p>To bind parties representing themselves to be partners, by estoppel to deny the relation, the representations need not have been ma’de to the party relying upon them, in person. It suffices that the holding out -was knowingly done, assented to or acquiesced in by the alleged partners, an'd known and acted upon by the party contracting with them as partners. (ip. 757).</p> <p>14. Same — In an Action Ex Delicto the Liability of all Partners is Not Essential to Recovery, and Verdict and Judgment May he Against Such as Are Liable.</p> <p>In an action ex delicto against parties sued as partners, liability of all of them is not essential to right of recovery. There may be a verdict and judgment against such of them as are liable and a judgment of nil capiat as to the others, (p. 757).</p> <p>15. Trial — Instruction Susceptible to Interpretation Varying from Law is Properly Refused. ,</p> <p>An instruction susceptible of an interpretation that would make it variant from the law is properly refused, (p. 758).</p> <p>16. Appeal and Error — If Errors Have Been Made in Rulings on Evidence, Requiring a New Trial, the Supreme Court of Appeals Will Not Inquire Into the Propriety of Refusal of a Peremptory Instmction.</p> <p>If, on the trial of an action, errors in the admission and rejection of evidence, calling for award of a new trial, have been committed, the appellate court will not inquire as to the propriety of the refusal of a peremptory instruction which, if given, would have required the jury to find for one of the parties, (p. 759).</p>

Action by the Biddle Concrete Company against Edward P. MeOlvin and others, and two actions by the Biddle Concrete Company against the Jacobs Realty Company and ethers. Judgments for plaintiff, and defendants appeal.

Case Certified from Circuit Court, Kanakha County. . Action by IT. G. Young against B. P. Garred. Ruling of ■circuit court, sustaining demurrer to certain counts of the ■declaration, certified to the Supreme Court for decision.

<p>Suit by Oliver Allen against J. M. Simmons. Judgment for defendant, and plaintiff brings error.</p>

Action by George R. Carson against the Jackson Land & Mining Company and others. Demurrer to declaration sustained, and plaintiff, not desiring to amend, judgment of nil capiat was rendered, and plaintiff brings error.

Action 'by George Schutte against Henrietta Schutte for divorce, in which defendant brought a cross-hill. From a judgment denying both parties relief, the plaintiff appeals.

Certified from Circuit Court, Kanawha County. Action by Eugene Laurenzi against the James E. Pepper Distilling Company. Questions involving rejection of two pleas and the admission of another are certified for review.

<p>Error to Circuit Court, Harrison County.</p> <p>G. L. Cunningham ivas convicted under the Worthless Check Act, and sentenced to the penitentiary, and he brings error.</p>