The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1915-12-12

tho trial court, In refusing to give
certain instruction ut the instance Of
the complaining party, tho record Of
the cause must show, by bills of ex-
ception or otherwise, what lnstruc-
tons were given at his instance, so
MS to enable the appellate court to
determine whether any error has been
committed In tho rulings. In this In
stance, as In most others, there Is n
presumption In favor OF the correct
ness Of the rulings of the trial court,
which prevails unless rebutted by tho
record.
A bill Of exceptions. showing the
giving OF one instruction for the plain
tiff and the refusal Of five asked for
by the defendant. without more, 10
deemed and held not to disclose all
the rulings OF the court upon tho re-
quests for instructions. ~
judicial admissions made In one
case are evidence In another, but are
not conclusive, and the effect thereof
may be avoided by proof Of their hav-
ing been made under a misapprehen-
sion Of fact. r. r. 4 4, h. g. Z,
Issues dependent upon conflicting
oral evidence and uncontrolled by any
admitted or clearly established facts,
fall within the province of the Jury.
and its finding thereon cannot be dis
turbed by the court.
One who has wrought injury to him
self by a misrepresentation which
caused another to do the injurious act
Is estopped from complaining Of such
act, In an action brought by such other
person against him.
The time laid in O declaration in
assumpsit. containing only the COM
mon counts, 10 immaterial and, may
be departed from In the proof.
Belle.Mead Lumber Company ".
80 49, Turnbull.
Webster county; reversed: remand
ed: Poffenbarger, president. !. 49,,
The exercise by the employer. In
a logging contract. Of an optional
right, after breach Of the contract and
notice to the employees and his surety
in bond Of indemnity. to take charge
Of the work and all teams, tools, ma
chinery, implements and appliances
used therein, and complete 1t, with
as reasonable cost for same as poe.
sible," does not postpone his right Of.
action on the bond indemnity, until
completion Of the work.
Postponement or limitation of the
right OF action does not arise by i'm
plication or inference. from the cause
giving such right. the purpose Of
which was to enable the covenantee
to get possession Of the timber rights
OF way. tratnways, engines, cars, tools,
machinery and appliances and conn
plete the work, as means of pre-
venting loss and delay in the execu-
ton Of his purpose.
An implied covenant can be justi--
fed only on the ground Of legal me-
cessity. It is not enough merely TO
say fairness. prudence or wisdom de-
'manded It under the circumstances.
It must be necessary to the opera
ton Of the contract or Of the words
found in II, or to the effectuation OF
the intention ! Of the parties, made
manifest by their words. i.'sf5s
/ State v. Springer.
] Tucker county; affirmed; Potfen.
barger, president.
5 A room in which the card game
known as poker" is habitually played
and to which all persons who desire
to play or watch the game, are admit
ted without invitation, and which they
are at liberty so to enter. Is place
of public resort within the meaning
OF the statute. making It q misdemean-,