1. An appeal lies from a decree reversing a decree upon a mo-
tion under Code 1899, chapter 134, without any motion to re-
verse being first made in the circuit court. Morrison v. Leach,
126.
There can be no appeal from a decree against a party on a
bill taken for confessed as to him, until a motion to reverse
shall be first made in the circuit court. If such an appeal is
taken without such motion it will be dismissed as improvi-
dently granted without considering the merits of the appeal.
Id.
APPELLATE COURT. See Writ of Error 1.
While it is a general rule that if appraisers refuse to hear or
consider material evidence it will be fatal to the award, it is
also true that evidence must be offered before it can be rejected.
Van Winkle v. Insurance Co., 287.
1. An award of arbitrators, made under a submission entered
into between the sole defendant and one of two co-plaintiffs
in an action of assumpsit, brought for the recovery of the debt
due to the plaintiffs jointly, for the determination of the mat-
ter in controversy in the action, whereby it was further agreed
that the award should be entered as the judgment of the court,
is neither void nor voidable merely because of the failure of
the other party to unite in the submission nor because the
umpire failed to append the word "umpire" to his signature,
and affixed in lieu thereof the word "arbitrator." Runyan v.
Rutherford, 436.
In a suit to set aside an award because the arbitrators refused
to receive or hear evidence, and it appears from the record that
plaintiff had full notice of the meetings of the arbitrators, and
was called upon several times by one of the arbitrators during
the work of the arbitrators, to whom the plaintiff furnished
some hills to be used in evidence and said he had further evi-
dence which he desired to present, but failed to appear before
the arbitrators or offer any further evidence, the arbitrators
cannot be held to have refused to hear or consider his evidence.
Van Winkle v. Insurance Co., 286.
Where the plaintiff claimed to have papers material to his in-
terests to present as evidence before the arbitrators, but failed
to appear or present them, it cannot be said that the arbitrators
rejected material evidence. Id. 287.
Prior service of an arbitrator in a similar capacity does not
render him incompetent, or invalidate an award in which he
joined, in the absence of evidence showing that he was preju-
diced. Id. 287.
Mistake of judgment in arbitrators is not sufficient evidence
of improper conduct on their part to justify the setting aside of
their award by a court of equity. Id. 287.
An arbitrator cannot contradict an award which he has signed.
Id. 287.
ASSAULT WITH INTENT TO KILL.
Upon the trial of an indictment for unlawful and malicious
shooting with intent to maim, disfigure, disable and kill, it is
error to instruct the jury that if they believe there was a quar-
rel between the accused and F. and that both were in fault, and
that a combat as the result of the quarrel took place and the
accused shot and wounded F. "In order to reduce the offense
from malicious to unlawful shooting, two things must appear
from the evidence and circumstances of the case; first, that be-
fore the shot was fired and the wound inflicted, the accused de-
clined further combat and retreated as far as he could with
safety; and, secondly, that he necessarily shot F. in order to pre-
serve his own life, or to protect himself from great bodily
harm." State v. Banks, 388.
ASSESSOR. See Prohibition 2.
ASSIGNMENT. See Contract 10.
1. In assumpsit the gist of the action is the promise of pay-
ment on the part of the defendant, which must be clearly
averred. Waid v. Diron, 192.
Such promise of payment may be either express or implied
by law. Whether express or implied, the averment thereof
may be in the same form or language. Id.
ATTORNEY IN FACT. See Estate 2.
1. An award so made is binding upon the parties to the sub-
mission, though it does not bind those who are not parties
to it. Runyan v. Rutherford, 436.
BENEFICIARY. See Fire Insurance Policy 17; Parties 1.
Courts are much stricter in permitting amendments to answers
than to bills. Ratliff v. Sommers, 30.
See Fraudulent Conveyance 8; Executor 1; Pleading 2; Injunc-
tion 4.
A bill cannot be maintained against a corporation for discovery
without making a proper officer of it a party. Munson v. Insur-
1. Abill which makes a person a party in the caption thereof
but contains no allegation showing such person's interest or
claim to interest in the subject matter in controversy, is de-
murrable. Preston v. West, 391.
1. Where a bill of review is filed in a cause to set aside cer-
tain decrees therein, alleged to have been procured by fraud,
and a demurrer is sustained to said bill as a bill of review:
and the plaintiff therein asks leave to amend the same, and
have it taken and treated as an original bill, for the purpose
of setting aside said decrees, for fraud; and said bill can be
so amended as to make it a bill, sufficient in substance for the
purpose sought, it is error in the court to refuse to allow such
amendment to be made therein, and to treat the same when so
amended as an original bill. Law v. Law, 4.
Aplaintiff contractor who sues for the profits on his contract.
which he was prevented from fulfilling by his employer, without
fault on his part, is entitled to recover the full consideration
for such contract, less the expense of fulfilling the same. Bar-
rett v. Coal and Coke Co., 396.
Plaintiff in such a case is not bound to prove what his profits
would have been with absolute certainty, but only with such rea-
sonable certainty as will satisfy a jury as to the reasonableness
of his demand or estimate. Remote or doubtful contingencies
arc insufficient to destroy the reasonable certainty of such de-
mand. Id.
BUILDING AND LOAN ASSOCIATION.
In such suit where the plaintiff, a Building and Loan Asso-
ciation, was claiming a balance due it according to the terms of
its contract, of $670.40, as of the 30th of November, 1899, and the
defendant by his answer says that his payments as shown by
his pass book furnished by plaintiff aggregated $639.70; that the
BUILDING AND LOAN ASSOCIATION-Continued.
association charged $4.00 per month interest on the $800.00
loan, and $4.00 a month premium thereon, and $4.80 dues on
the eight shares of stock upon which the loan was made and
that on the first day of September, 1898, he only owed the plain-
tiff $317.65 with interest from that day: that from the 1st day
of September, 1898, he made default in the payment of dues,
interest, premiums and fines and has continued to do so from
that time to this; and further answered "that under the terms
of said deed of trust, if default should be made, the whole debt
should become due and a mere interest bearing fund." Held:
Such answer did not raise the question of usury. Held, further:
That the defense of usury not being made by the defendant by
his answer, the commissioner was not warranted in applying all
payments made by defendant of interest, premium, dues and
fines, on account of said loan of $800.00, and interest at the rate
of six per cent per annum. Building & Loan Ass'n v. Westfall,
305.
A building and loan association contract requiring the payment
of a fixed monthly premium on the loan for an indefinite period
of time is usurious. Harper v. Building Association, 149.
CANVASSING BOARD. See Mandamus 5.
State v. Meyers, 42 W. Va. 822, overruled. State v. Bruce, 385.
The certificate of acknowledgment of a writing not required by
law to be recorded is no evidence of its execution, and is not
admissible as such. Rutherford v. Rutherford, 56.
1. Circuit courts have no original jurisdiction of election con-
tests or re-counts, nor authority to prevent, by writ of prohibi-
tion, a person who claims to have been elected to an office from
taking the same and assuming and exercising its powers and
duties, on the ground of invalidity of the election or ineligibili-
ty of the party claiming the office, and, by awarding such writ
in such case, a judge of such court subjects himself to a writ of
prohibiton from the Supreme Court of Appeals. Moore v. Holt,
507.
A decree of the circuit court, confirming the report of its
commissioner, will not be disturbed on appeal, unless plainly
wrong. 36 W. Va. 649. Poling v. Boom and Lumber Co., 530.
See County Court 1; New Trial 4.
CITY COUNCIL. See Prohibition 3.
Three coal mining companies operating in the same vein or
seam in close proximity to one another and just having com-
menced the development of that particular kind of coal, or-
ganize, indirectly and nominally in the names of idividuals,
a third corporation to act as their general sales agent, and each
gives it by contract the exclusive right to sell its entire output of
coal, at prices uniform as to all three companies, and not to be
departed from without the consent of all the companies, and
said agent company is to advertise and introduce the coal in the
markets, establish and control all agencies and sub-agencies, and
make all sales and collections and deduct for its compensation
ten cents per ton out of the proceeds of sales. Held: That the
contract is illegal and void, its tendency being to suppress
competition and restrain trade, contrary to public policy.
Slaughter v. Coal and Coke Co., 642.
COMMON AND PUBLIC NUISANCE. See Social and Literary
Club 1.
COMMON CARRIER. See Railroad 1, 2, 3.
COMMON INTEREST. See Mandamus 2.
Chapter 78, section 1, Code 1899, changing the common law,
passes all and whatever title, right and interest of inheritance
in land vested in an intestate to his heirs, including seisin in
fact or law, whichever was vested in the intestate. Bragg v.
Wiseman, 331.
COMMISSION. See Agent 1; Circuit Court 2.
COMPENSATION. See Contingent Fee 2.
COMPETENT EVIDENCE. See Divorce 3.
A compromise of a controversy is a valuable consideration to
sustain a contract. Rutherford v. Rutherford 56.
CONSIDERATION. See Fraudulent Conveyance 12.
CONSTABLE. See Gaming Devices 1.
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