The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-09-05


ed Improvement, and was not ignorant
OF the fact that the construction OF the
bridge would endanger at least the
northernmost Of his buildings. And I'M
der the decision Of the court in Holt v.
Taylor, 45 w. Va. 1855, his findings as to
these questions OF fact must be sus-
tanned. Under these circumstances, 1t
must be held that the Goshorn estate
is not entitled to damages under the
second rule.
The commissioner finds. and his find
ing in this respect, It seems to me, Is
clearly right. that Paige, Carey & Co.
are not responsible for any damages,
under their contract with the city,
which were not occasloned by their neg
lIgence in doing the work contracted
for. Consequently, the right OF the
Goshorn estate to recover any damages
Il may have sustained by reason OF the
destruction Of the buildings belonging
thereto, under Art. of sec. 0 OF the
constitution OF West Virginia, which
provides that private property shall
not be -" damaged for public use
without Just compensation" does not
arise in this case, and Is not therefore
considered.
For the foregoing reasons the excep-
lions numbered 2, 3. 4, and 6, filed by
Alfred Caldwell, executor OF the Will OF
William S. Goshorn, deceased, to said
report are overruled.
(. The commissioner reports the IN
debtedness OF the city OF Wheeling TO
Paige, Carey & Co. as Sl2,Sn 80, with
Interest from November 18th, 1892. His
finding OF this question OF fact must be
sustained. See Holt V. Taylor, IS w.
Va. 1853, And nll exceptions to such find
Ing are overruled.
{. A number OF the creditors of Paige,
Carey g. Co. hold orders which were
given them upon the city OF Wheeling
by or in the name Of that firm.
The commissioner finds that the said
firm was lnsolVent Mt the time when
these orders were given; that said or
ders amount to an assignment OF so
much Of the assets OF said firm, and
that under the act OF 1891, such orders
are void so far as they seek to give
preference to one creditor over another
In the assets OF the insolvcnt debtors.
on behalf OF the creditors holding
these orders, It Is urged that this find
ing Is erroneous because no proper or
timely attack has been made upon them
either TAI by an independent suit, as
provided for by chapter OF the Acts OF
1895, or ID by crOss-bill, or answer un-
der section IS of chapter 125 OF the Code,
framed In accordance with the prin-
clples announced In GoH V. Price, ~ w.
Va. 3S4, and duly matured for hearing.
But chapter OF the Acts Of 1895 does
not apply to these orders, us they were
aii given before Its passage; Casio v.
Greer, A w. Va. $50. Nor have the
principles announced In Gof V. Price,
supra, any application to this case, as
plaintiffs bill is In the nature OF bill
OF interpleader In which the controversy
Is not between the plaintiff and the de-
PENDANTS, but between the defendants
themselves.
these orders are therefore sustained,
and all exceptions relating thereto are
6, The commissioner finds that the city
of Wheeling and Lewis Steenrod are
exempt from punishment. His find
lngs In these respects are sustained, md
ali exceptions relating thereto IRE over
ruled.
spect to the mechanics liens asserted
In this case IS also sustained, and all
exceptions relating thereto are over
ruled.
what Is called the "Steenrod Fund" and
the material Debt Is also sustained,
and ali exceptions relating thereto are
.. Exception No. 5, fled by the Mack
Manufacturing Company Is to the com
mIssioner's reporting an expenditure
OF S5s IS for advertising.
Under the order OF reference in THIS
cnse, the commissioner was authorized
To give notice of the taking Of his ic-
count by advertisement In one and only
one newspaper. This advertisement was
inserted in the Wheeling Daily Register
the costs thereof amounting to 81 w.
The exception, except as TO said sum OF
500 90, is therefore sustained.
The commissioner states that the
other advertisements were authorized
by him after advising with counsel IN
terestcd In this litigation. Under these
the clients OF the coun-
sci with whom the commissioner adVIs-
cd should pay the costs thereof.
10. Exception No. OF the said com
many Is 10 the commissioners reporting
witness fees as follows: Gilmore Brown.
$40 OO: p, II, Haley, Sl2 90; n. c. Ham
ilton, $40 as, and Il. X. Hitchcock. $iS 90.
The remarks Of the commissioner
upon this exception show that each OF
these witnesses. except Gilmore Brown'
is entitled to the amount reported In his
favor. under the provisions OF section
40 OF chapter 100 Of the Code
The exception is therefore overruled'
except M 10 the amount reported In fa-
yor OF Gilmore Brown. ms to which II Is
In part That is to say, this
witness is entitled to one dollar day
FOR earh day he attended as witness
before the commissioner. and no greater
ii, Exception No. I OF said company
is to the commissioners reporting 80 10
as due the Inelllgcncer Publishing Com
pnny for binding the report. This e%-
coptIon II sustained. ns there Is no pro-
vision OF law authorizing an eXpendi-
ture OF this character.
IL. Exceptions Nos. ana OF snlh
company relate to the commissioner
charge OF S2.jj6 Is for dispositions and
report llcd herein.
In his remarks upon these exceptions.
tho commissioner says that portion OF
The testimony was taken by Btenogrd-
phurg employed by him, and that for
this work but one charge ~ seventy
Ave cents an hour was made FOR the
time the photographer was engaged In
taking the testimony In shorthand and
In trnnscrlblng his notes; nlao That n
norton OF his report was dictated to
gtenogrnpher. n charge ~ ecyonty-ilvc
cents m hour being made FOR the time
employed III debating ana In writing
up In connected and proper FORM
the diatntiOn.
section 3 " chapter iS7 OF the Code
provides. ~ CommlsHlOner returning
IA report ahall annex thereto certll-
cate, undor oath, that he ives actually
and necessarily employed for num-