TURNER v. HINCHMAN. Kanawha County. Decree Reversed. Brannon, Judge. SYLLABUS A deed is made by a man eighty-eight years of age, long suffer. ing from painful disease, feeble in body, whose mind is feeble from age and disease, which deed conveys all his land of great value to two sons in whom he reposed confidence, and who transacted all his business, residing close to him in the country and in constant intercourse with him, which deed is drawn by one of the sons, not in the presence of their father, and executed at the request and in the presence of the sons, in the absence of his daughters and without their knowledge. the deed not read or explained to the father, the sons having had a private interview with him the day before, which deed conveys land of great value, whereas by it the daughters are to be paid each a sum of money by far less than the value in land received by the sons. Within fourteen months before this deed the father had made four deeds and wills, at the instance of different children, making different and inconsistent dispositions of the land among his children, and afterwards a will dividing it equally among his six children Before this deed he had repeatedly declared a desire that the land should be shared equally by his six children. Such deed is void for mental weakness, fraud and undue influence, and equity will cancel it at the suit of the daughters. SMITH V. MITCHELL. Mason County. Mandamus Refused. Brannon, Judge. 1. A bill is introduced in the House of Delegates as House Bill No. 161, and the bill is introduced in the Senate as Senate Bill No. 99. The House bill is read duly and passed by the House and reported to the Senate. The Senate bill is read twice on different days and on second reading the Senate substitutes for it the House bill under the name of House Bill No. 161, and under that name it is read on another day and passed by the Senate. The bills are identical in title and matter. The bill passed by the Senate has been read in it three time as required by the Constitution. 2. After a bill has been passed by the House of Delegates and reported to the Senate, and it has passed the Senate and been by its order sent to the House with report of its passage by the Senate, and the House refuses to return it to the Senate, the Senate cannot reconsider the vote passing the bill, as it has no possession or control over the bill, and its vote to reconsider will not impair the validity of the act. claimed, in the form of an averment. It is sufficient if it appear in any part of the declaration. The ad damnum clause, while consistent with good form in pleading, is not indispensable. 2. The opening of a ditch in a public street, for the purpose of laying a pipe to connect a dwelling house with the water main, is not, per se, a nuisance, and does not make the owner of the house liable to a person Injured by falling into the ditch, unless such owner has been guilty of negligence. 3. If the owner of the house let the work of opening the ditch, and laying the pipe, to an independent contractor, and such contractor cause the ditch to be dug, and be left open and unguarded, and a traveler upou the street fall into it in the nighttime and is injured, without fault on his part, such ndependent contractor is liable. 4. The master is liable for the negligence of his servant in the performance of a duty to the master within the scope of the servant's employment. 5. An instruction which deals only with matters relating to the quantum of damages, is not erroneous because it assumes right of recovery, provided another instruction has been given properly instructing the jury in regard to the essential facts constituting such right of recovery. In such case it is proper to consider the two instructions together. BLUE, TAX COMMISSIONER, v. TETRICK, CLERK. Mandamus Awarded. Brannon, Judge. 1. Chapter 4, Acts 1904, extra session, found in Code, edition 1906, ch. 29, is not unconstitutional in its provision creating the office of tax commissioner. He is a lawful state executive officer. 2. 'The Legislature has power under the constitution to create subordinate executive state offices in addition to those specified in section 1 of article VII of the Constitution. 3. Chapter 33, Acts of 1908, extra session, is not unconstitutional in its provisions requiring public officers in keeping accounts of publíc moneys, to conform to the systems and forms prescribed by the Etate tax commissioner and board of public works. FRENCH V. BENNETT, JUDGE. Mandamus Awarded. 1. If an inferior court refuses to take and exercise jurisdiction of a case when by law it has jurisdiction, mandamus will be awarded to compel it to do so. 2. The County Court of Fayette county has jurisdiction of a contest for the office of judge of the criminal court of that county, and the circuit court of that county has jurisdiction of an appeal therein. COBERLY v. GAINER, ET AL. Randolph County. Affirmed. SYLLABUS 1. All three members of a board of education met outside of their school district on the 7th of September, 1904, and signed their names without giving their official designation, to a contract for “7 sets of THE NEW EDUCATION" to be furnished to the public schools of their district, agreeing to pay therefor by warrant to be drawn upon the sheriff, "and not to be presented until the fall of 1905." HELD: I. That said agreement was an attempt to create an obligation on the school district, payable out of the levy to be made for the fiscal year 1905, and was, therefore, in violation of Sec. 45, ch. 45, Code of West Virginia (1899), the law then in force, and created no charge upon the public fund of the district. II. That said contract was made by the board of education in its official capacity, and, notwithstanding it was in excess of authority, the law then in force imposed no individual liability on account thereof. III. That said contract was not the personal agreement of the members of the board of education, and that they did not thereby bind themselves individually. 2. In the absence of a statute imposing individual liability upon a public officer for attempting to create a public debt in excess of his authority, he cannot be held personally liable therefor, except upon his agreement. PERRY ET AL. v. McDONALD ET AL. Summers County. Affirmed. 1. The holder of the true superior title to land which is in his actual possession may maintain a suit in equity to remove from his title the cloud of a claim by another under an inferior title. 2. That the possession relied on by a plaintiff in a suit to remove cloud was taken in the night time, or for the purpose of bringing suit, wheu no prior exclusive possession was disturbed or tortious act committed, will not deprive equity of jurisdiction. WILSON V. VALLEY IMPROVEMENT COMPANY. A master, having contracted temporarily to perform labor, by and through his servants, upon premises owned and fully controlled by another person, and having no knowledge of danger to his servants from defectiveness of the premises or machinery and appliances of such third person, and not having guaranteed the safety or suitableness thereof, is under no duty to inspect the same, nor liable for an injury to his servant, occasioned by defects therein. RYAN V. PINEY COAL & COKE CO. One whose action, commenced within the time allowed by law, has been erroneously dismissed on a plea in abatement for variance between the writ and the declaration, after refusal to permit an amendment of the writ, may bring a new action, having the same purpose as the one dismissed, within a year after the date of dismissal, though after his right of action would have been barred by limitation, had the dismissal action not been instituted. Young Attorney Wanted to buy half interest in a well established law and collection business, net commission above all running expenses $300.00 to $500.00 per month. Well equipped offices, typewriters, filing devices, dictaphone and other office furniture, inclucing banking windows separating the public from the private offices. Business growing fast, now having a clientage of several thousand well pleased merchants and professional men and from $100,000.00 to $500,000.00 unfinished business now in our files. We will sell at a price that will allow the business to pay for itself in three months. The senior partner wishes to retire on account of bad health. "LAW & COLLECTIONS " Box 566 Wheeling, W. Va. |