any provision in the contract between the railway company and the contractor, making the former reliable for a recovery from the latter by a sub-contractor.

STATE V. RAILROAD CO.

Barbour County. Reverse and Remanded.

Williams Judge.

SYLLABUS.

1. An indictment against a railroad company for obstructing a public read by suffering one of its trains to remain standingacross the road for a longer time than is allowed by law, is not demurrable because it fails to designate the particular train, or the time wheu the wrong was committed; it is sufficient if it alleges that it was done within one year next preceding the finding of the indictment.

2. Under such indictment the court should require a bill of par. ticulars, if motion therefor is made before pleading to issue, supported by affidavit showing that defendant, during the year, ran many trains over its railroad each way, some passenger trains and some freight trains, each train being in charge of a different crew and that it is not advised concerning the particular train that caused the obstruction.

3. To refuse a bill of particulars in such case is prejudicial, and may be cause for reversal.

4. Proof of one obstruction only, under such indictment, without other evidence to show that defendant either authorized or approved it will not sustain the indictment; the defendant's acquiescence in, or ratification of the unlawfu! act will not be inferred from the one act alone.

CLEMENS, SHERIFF v. BOARD OF EDUCATION

Ohio County.

Affirmed.

Robinson, President.

1. The treasurer of the city of Wheeling is, under existing laws, the collector of school monies in the independent school district of Wheeling.

2. Repeal of a statute by implication is not favored. It is never admitted when the former act can stand with the new one. It will not be admitted unless there is irreconcilable conflict between the two statutes.

3. A statute treating a subject in a general manner, and not expressly contradicting a prior special act in relation to a detail of that subject, shall not be considered as intended to affect the more particular previous provision unless it is absolutely necessary to give the latter act such construction in order that its words may have any meaning at all.

SOUTH PENN OIL COMPANY v. KNOX ET AL.

Harrison County. Affirmed.

Robinson, President.

SYLLABUS.

1. In a lease for oil and gas producing purposes, general loca. tion and description of the land by undefined references to adjoiners will be limited and controlled by particular calls for monuments, courses and distances contained in a deed especially mentioned and pointed out in the description as one by which the same land was con. veyed.

2. As a general rule, a particular description prevails over a general one, and limits the application of the latter. That which is the more certain is entitled to the greater efficacy.

3. In the interpretation of instruments, force and effect must be given, if possible, to all the words employed. A part cannot be disregarded, unless other terms used are so specific, clear, and convincing in contrary meaning as to prove it to be a false demonstration.

4. A statement of quantity is never allowed to control defined and reliable calls by monuments, courses and distances. All other elements of description must lose their superior value through am biguities and uncertainties before resort can be had to quantity.

5. When an oil and gas lease is clear and ambiguous in its terms, the usual clauses providing against drilling near to buildings and for free gas in a dwelling not asserting that such buildings are actually on the land leased, cannot tend to the overthrow and total disregard of the particular description of the premises adopted by the parties though there are no buildings on the land embraced by that particular description and a dwelling and other buildings are in adjacent land to which the more general description alone might extend.

IRONTON LUMBER COMPANY v. GUYANDOTTE TIMBER COMPANY

Cabell County. Judgment Reversed.
Brannon, Judge.
SYLLABUS.

1. A declaration for damage from negligence must allege both the negligence and the loss from it, and state facts showing that the loss resulted from such negligence. It must show that the negligence was the proximate cause of the specified loss.

2. When a hoom company has a "corker" stretched across a stream to stop and secure logs, an owner of a log raft desiring to pass his raft through the boom must inform the operator of the boom of his desire of passage, and a declaration in an action for damage for such obstruction must aver that such passage was demanded.

PINKNEY v. KANAWHA VALLEY BANK.

Kanawha County. Reversed, verdict set aside and new trial awarded.
Miller, Judge.
SYLLABUS.

1. If the holder of a check indorses it, and deposits it for credit and collection in another bank, the collecting bank, if the check is not paid, and it is not without fault in forwarding it for payment, has the right, on its return, to charge it back to its customer or recover the amount if he has in the meantime withdrawn the money.

2. The general rule is that if a collecting bank forwards a check directly to the drawee bank, and by custom or agreement it is authorized to credit the collecting bank and remit, or settle at stated pe. riods, its receipt of the check debiting it to drawer and crediting it to the collecting bank constitutes payment, and renders the forward ing bank liable to its principal for the amount thereof.

3. Such would be the effect of the transaction whether there was sufficient cash in the bank at the moment to pay the check, or it be afterwards discovered that the check was an overdraft, and the drawee insolvent.

4. The qualification of the general two day rule, allowed for forwarding paper for presentment is, that if there be more than one mail on the second day it need not go by the first, but, if there be but one, It must go by it, unless it leave or close at an unreasonably early hour. The whole of the second day is not allowed, unless the last mail of that day goes at the close of business. Approving Lewis. Hubbard & Co. v. Supply Co., 59 W. Va. 75.

5. A collecting bank. knowing of the depressed financial condition of the debtor, is delinquent in its duty if it neglects to inform its customer of such vital condition, and fails to take vigorous measures under the circumstances to secure payment, and if loss occurs by its negligence to exercise that degree of skill, care and diligence which the nature of its undertaking calls for, with reference to the time, place and circumstances surrounding the undertaking, it will incur Hability to its principal for the loss sustained.

6. The general rule to which there are few, if any, exceptions, is that it is negligence for a collecting bank to send checks direct to a drawee bank. The drawee bank who is to pay the check is not a suitable agent for its collection.

7. And the fact that the drawee bank is the only bank at the place where it is located constitutes no exception to the general rule.

8. The custom of the banks at the place where the collecting bank is located. of sending checks to a drawee bank, will not justify the sending of a check directly to a drawee, Custom cannot justify negligence.

9. Where a collecting bank is negligent in transmitting a check for collection, and in forwarding it to the drawee bank, whereby such drawee though in disregard of a special agreement, is enabled to

debit the drawer of the check and credit the collecting bank, and control of the check is lost by the collecting bank and it is never returned to the customer, the latter may in an action of assumpsit, upon the common counts as for money had and received, recover the full amount of the check.

SHORE v. LAWRENCE ET AL.

Kanawha County. Judgment Reversed, Demurrer Sustained and Case Remanded.

Poffenbarger, Judge.

SYLLABUS.

1. Speciai counts in a declaration in assumpsit. charging a debtor and a guarantor of a debt jointly, are bad on demurrer.

2. The following clause in a lease, executed by the lessor, lessee and a third party: "And the said party of the third part, for and in considerations deemed valuable to him hereby agrees that in case of the failure of the party of the second part to pay the rental in accordance with the terms of his agreement that he, the said party of the third part will pay the same," imposes a separate, collateral and conditional obligation, constituting only a guaranty, and such third party cannot be held to liability as a surety.

3. Another clause in the lease, saying "It is agreed by the parties hereto" that, in case of default, the lessor may re-enter and the whole amount of the rent shall become due and payable must be read in harmony with the express terms of the clause, pertaining to and determining the character of the liability of such third party, even though it should make him liable for the whole amount of the rent, in case of default.

Wetzel County Degree Affirmed.

LLOYD v. MILLS.

Brannon, Judge.

SYLLABUS.

1. If one co-tenant make an executory contract for sale to a stranger of the entire tract, not merely his interest, and the purchaser enter into actual possession this is an ouster of the other co-tenant, and such possession for the period of the statute of limitations will bar his rights, without other notice of adverse claim.

2. A quitclaim deed for land is good color of title on which to base adversary possession under the statute of limitations.

3. Actual possession in drilling and producing oil and gas by a lessee of land under the usual lease for production of oil and gas, is actual possession of the land by the lessor for adversary possession.

FOWLER ET AL. y NORFOLK & WESTERN RAILWAY CO Mercer County. Judgment Roversed, Verdict Set Aside and Case Remanded.

Poffenbarger Judge.

1. An action for damages for obstructing a highway cannot be maintained by a citizen, unless he shows injury to himself or his property, peculiar and special in the sense that it is different in nature or kind from that which results to the public generally from the obstruction.

2. A property owner has no right of action against a railway company for destruction of a street crossing in consequence of which his property suffers injury of the same nature or kind as that which results therefrom to all other property owners, affected thereby, even though it be greater in degree.

3. A foot bridge or passage way over a railroad, erected by the company owning the railroad, at the instance of a city council, by way of partial restoration of a grade crossing which the railroad company has destroyed, is an Improvement made by the railroad company, nder a duty enjoined upon it by the 6th clause of section 50 of chapter 54 of the Code of 1906; and, for damages occasioned to the prop. erty of an abutting land owner by the erection and maintenance of such structure, the railroad company is liable.

4. Under such circumstances, there is no liability upon the city for injury to abutting land.

5. In such case, the injury is permanent in its nature and permanent damages are recoverable.

6. In such case, it is immaterial that the owner of abutting land Las no title to the fee in the street on which such structure is erected and maintained. The right of action is given by section 9 of Article III of the Constitution of this State, inhibiting the taking or damaging of private property for public use, without just compensa. tion.

7. In an action for damages to property occasioned by a public improvement, it is error to refuse to instruct the jury to set off, against the damages, the value of peculiar benefits, inuring to the property from the construction of the improvement.

UNION CENTRAL LIFE INSURANCE CO. v. ZIHLMAN.
Cabell County. Affirmed.
Poffenbarger Judge.

1. The provision in a life insurance policy, making it null and vold, without action on the part of the company, in case of failure of the insured to pay any premium, due thereunder, or any note, given for such premium, is intended for the benefit of the insurer and makes the policy voidable only ou the happening of the contingency specified. 2. In such case, there is no failure or lack of consideration for the note, arising out of the default or consequent thereon.