The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-04-02
While There Are -Four Affhisna-
lions and One Mandamus
by the Supreme Court.

OF the ten cases in which the sopin-
ions were handed down by the SUI
preme court Of appeals this week, five
were cases In which the court re-
versed the lower tribunals, four were
afirmations Of the Judgment below,
and one mandamus case in which
writ was awarded against county
court. a3e Ff.rs
syllibi in the other cases are as
follows:
Hartman vs.. the New River and Po-
cahontas Consolidated Coal Company,
Mcdowell county; judgment reversed !;
demurrer overruled; case remanded.
Judge Miller. Ilt
In an action for personal injuries,
II the declaration, as in this case, suf-
fciently states the relationship OF
master and servant. the duties OF. the
former to the latter, and the breach
OF those duties by defendant, this is
all that is required, and the declara-
ton will be treated as good on de-
murrer.
In such cases the declaration need
not set out the evidential facts upon
which the rights Of the parties, may
depend, and which may be developed
on the trial.
Wright VI. Wright, Mason county;
judgment affirmed. Judge Miller.
The, remedy by cortiorari given by
section 2 Of chapter 11s, Of the code,
II available, in case of one erroneous
~ adjudged a lunatic upon an inquisi-
ton by q Justice. should be construed
as cumulative. and not exclusive Of
the common law remedy by writ of
habeas corpus, and as given by sec
ton i, Of chapter Iii, serial section
4524, code 1915.
The finding Of a justice upon an
inquisition OF lunacy Is not conclul
sive Of the fact Of insanity, upon a
subsequent inquiry into the same fact
by the circuit court upon writ OF
habeas corpus.
In such cases the finding Of the JUS
tice upon such an inquisition at most
constitutes but prima facie or pre-
sumptive evidence Of the fact of in
sanity, and is not res adjudicata of
that fact when relied on in bar Of the
right to have that fact again inquired
into upon writ of habeas corpus.
Snider VS.. Robinett, Mercer county;
reversed, new trial. President Will
liams.
In covenant there is no general is
sue, strictly speaking, as in debt, as
sumpsit or trespass on the case, and
the plea of non est factum puts in is
sue only the execution OF the coven-
ant sued on. But il the declaration
does not aver the covenant in its ex-
act language, but simply its legal eff
feet, the plea puts that matter in is
sue as. well as its due execution.
To enable the court to construe q
deed or other writing, ambiguous on
its face. 1T is always permissible to
prove the situation Of the parties, the
circumstances surrounding them when
the contract was entered into and
their subsequent conduct giving 1t a
practical construction, but not their
verbal declarations. But, II a latent
ambiguity is disclosed by such evil
dence, such for instance as that the
terms Of the writing are equally ap-
plicable to two or more objects when
only certain one Of them was meant
then prior and contemporaneous
transactions and collocutions Of the
parties are admissible, for the pur-
pose Of identifying the particular OBJ
ject intended. ySs5
Where certified copy Of a record
ed deed is used as evidence in the
| trial of the issue of non est factum.
in lieu Of the original shown to have
been lost, and there is no note or
memorandum on such copy respecting
any interlineation, erasure or altera-
ton in the original, 1t is proper to re-
fuse an instruction to the jury, the
effect OF which would be to tell them
that they should consider the absence
of any such memorandum as evidence,
in determining whether certain words