shops for the purpose of making the tests; | for the purpose of impeaching his testimony. and that he has seen him do it by getting in the fire box and tapping on the ends of the stay bolts with a hammer.

had nails or metal in the test holes, said: or direction about your statement?" "I never examined them all. I counted some-sel for plaintiff stated that if witness was where in 20. I would not say positive. I allowed to answer he would say "that he was told that trouble was apt to grow out of this accident, and that he had better be careful about the statement that he had made and was going to make, and that, as he was in the employ of the company and had a family to care for, he had better be careful

water, as compared to its appearance when, relating to the appearance of the broken fresh broken, is a matter of common knowl- bolts, viz.: "Well, there were several bolts edge. How it appeared to witness is how it broken or rusted off, or burned off, or somereally was, so far as it concerns the value thing. I don't know how they got off; but of his testimony. And if his answer in- they had been off for some time." Witness volved the expression of an opinion by the could describe the appearance of the broken witness it was in relation to a thing which ends of the bolts, whether rusted or fresh he saw and was trying to explain to the broken; but it was the province of the jury jury. The rule is that a nonexpert witness to determine how long they had been broken. may be allowed to express his opinion in It was also proper to strike out the same connection with the facts on which it is witness' answer, set out in plaintiff's bill of founded, when the matter concerning which exceptions No. 12, in which, speaking of the he has testified cannot be reproduced and bolts, witness says they "were badly bromade clear to the minds of the jury. "In ken"; they "had been badly rusted and such case the witness testifies as to the pres- burned off." The language implies that, in ent conviction of his own mind as to an ac- the opinion of the witness, a large number tual fact, though deduced from circumstances of bolts had been broken off for a long time. which cannot be made palpable to others." he was not an expert, and it would seem 12 A. & E. E. L. (2d Ed.) 488. In State v. from his statement that some bolts were Welch, 36 W. Va. 690, 15 S. E. 419, a non- burned off that he had but little knowledge expert witness was allowed to state that, in of the construction of a locomotive boiler. his opinion, a stain seen by him was a blood The space through which the bolts passed stain. The appearance which the broken was filled with water and steam, and it was bolts presented to witness was, necessarily, not possible for them to burn off. His testihis opinion of their actual condition; and, mony that some of the bolts were plugged in view of the common knowledge of all men with nails was proper evidence. It suffiin respect to such things, he could not better ciently appears that the purpose in driving explain to the jury what he saw than by tell- nails in the holes in the bolts was to stop ing how it appeared to him. It would appear a leak, and that a leak indicated a broken to others as it did to him. This identical or cracked bolt. It is therefore a natural question arose in a similar case, decided by and fair inference that all the plugged bolts the Supreme Court of Illinois (Illinois Cent. were broken before the explosion. R. Co. v. Prickett, 210 Ill, 140, 71 N. E. 435), and it was there held that: "Nonexpert witnesses, in an action for damages caused by a boiler explosion, may be allowed to testify whether or not breaks in the stay bolts of the boiler had the appearance of old or new breaks, in connection with the facts, so far as they can be described in words, on which their conclusions are based."

The court likewise erred, and for the same reason, in refusing to allow answers to be made to similar questions asked of the same witness, set forth in plaintiff's bills of exceptions Nos. 6 and 7. He was also asked it he was "able to determine if the bolts were recently broken, or if they, or some of them, had been broken before the explosion." Answer to this was properly refused, because it called for witness' conclusion or opinion in regard to the very issue to be tried by the jury.

It was proper not to permit Bernard, the expert witness, to answer the question whether or not it would be "exercising reasonable care" to weld or plug the test holes in the stay bolts. That was a matter for the jury to decide, upon proper instructions by the court. It was one of the very issues involved.

There are a number of other exceptions taken to the ruling of the court upon similar questions of evidence; but we think what we have already said amounts, practically, to a decision of all such questions raised, and will enable the court, on a retrial of the case, to avoid the commission of error.

[6] There is, however, another assignment, involving the question of after-discovered evidence, which deserves consideration. Plaintiff moved for a new trial on the ground of after-discovered evidence, and in support thereof tendered his affidavit, in which he The court properly excluded the following states that on the day of the trial, and after answer by witness Belknap to a question in the verdict was rendered, he "was informed" relation to the number, location, and condi- that two other witnesses, naming them, tion of the broken bolts that he saw, viz.: were present shortly after the explosion, and "Well, they looked in bad condition to me." examined the broken parts of the boiler. He This answer implies that it was witness' then states what he is advised those witopinion that the bolts were in bad condition nesses will state. Affiant does not produce before the explosion. It could not refer to the affidavit of either of the witnesses, or of the condition of them, produced by the ex- his informant; no cause is shown for failure plosion, because that was not germane to the to produce affidavits of the witnesses thempoint that was then the subject of inquiry. selves. Moreover, the newly discovered eviFor the same reason, the court properly dence is only cumulative. The affidavit was struck out the following answer, made by clearly not sufficient. State v. Stowers, 66

70 W. Va. 232, 73 S. E. 964; and Jacobs v. 16. BANKS AND BANKING (§ 116*)-FUNCTIONS
Williams, 67 W. Va. 378, 67 S. E. 1113.
AND DEALINGS-NOTICE TO OFFICER OR DI-
RECTOR.

We are of the opinion that the evidence was sufficient to entitle the jury to pass on the question of defendant's negligence, and that it was error to direct a verdict to be found in its favor. We therefore reverse the [Ed. Note. For other cases, see Banks and judgment, set aside the verdict, and remand Banking, Cent. Dig. §§ 282-287; Dec. Dig. §

Power of attorney, given an agent to purchase shares of stock in corporations, "formed or to be formed," and to pay for same by Certificates of deposit, payable to the or"promissory notes," payable at such time and der of the depositor, are negotiable, and are place as the agent may determine, authorizes such agent to purchase stock in a newly form-governed by the law applicable to commercial ed corporation, and to execute his principal's commercial notes therefor.

Appeal from Circuit Court, Marion County. I require my indorsement, and to deposit the A bill in equity by the City Bank of Wheel- proceeds in my name in said First Citizens' Ing and others against W. J. Bryan and others. From a decree for defendants, plaintiffs appeal. Reversed and remanded.

Bank of Cameron, W. Va., or in any other bank or banks, trust company or companies wherever located that my said attorney may from time to time select; and to make, draw, Alfred Caldwell, T. S. Riley, Henry M. Rus- or sign in my name any promissory notes sell, John J. Coniff, and Erskine & Allison, which my said attorney shall in his absolute all of Wheeling, for appellants. W. S. Mer-discretion deem requisite in or about my edith, of Fairmont, J. Howard Holt, of business. * To subscribe for or purMoundville, P. M. Hoge, of Fairmont, and chase in my name shares of the capital stock D. S. Walton and W. A. Hook, both of Waynesburg, Pa., for appellees.

As to one note for $6,000 sued on by the First Citizens' Bank, on which there is a balance of $1,000, exclusive of interest, there is no controversy. The court gave a deerated under low-water pressure, and had cree for this balance and its interest, but applied for a patent. In January, 1903, a dismissed the suit as to the other notes plumbing company, the Fox Tank & Valve sued on, and also dismissed the suits of the Company, was chartered for the purpose of other two banks. All the notes, except the exploiting this device, and W. J. Bryan was $6,000 note and the $3,000 note held by the induced to take $12,000 of stock in it. The First Citizens' Bank, were executed by S. $1,000, not controverted, is the balance of W. Loller, attorney in fact for W. J. Bry- that subscription. At the time that subscripan. Loller is Bryan's son-in-law, and the tion was made the Fox Tank & Valve Compower of attorney clothed him with power, pany owned nothing but the right to the inamong other things: "(3) To indorse in my vention, which Ascher had assigned to it. name or negotiate all checks, drafts, bills of The patent was later issued to said company. exchange, notes or other negotiable paper, W. J. Bryan was the president of that compayable to me or my order, or which may pany. Later the Loller Manufacturing Com

pany was chartered for the purpose of taking due on the $6,000 note, for which, togethover the stock and business of the Fox Tanker with accrued interest, a decree was given. & Valve Company and enlarging the business Four of the contested notes are for $5,000 of manufacturing and selling the device. S. each, and bear date June 10, 1903, and are W. Loller was made president, and A. E. payable at the Merchants' & Manufacturers' Fox, treasurer, of that company. The $47,- National Bank, to the order of the Loller 000 of notes were executed in consideration Manufacturing Company, one note for $2,000, of stock in the American Manufacturing Com- dated July 16, 1903, payable at the Middlepany. It owned a plant, located at Middle- port Bank to the order of S. A. Englehard, port, Ohio, and had been engaged in manu- all signed by W. J. Bryan, by S. W. Loller, facturing plumbing fixtures. S. A. Englehard attorney in fact, and one for $3,000, dated owned and controlled nearly all the stock of August 10, 1903, payable at the First Citithat company. It appears that the American zens' Bank to the order of S. A. Englehard. Manufacturing Company was then insolvent; and signed by W. J. Bryan in person. it owed debts amounting to $56,000, and its Two principal defenses are made to all plant was sold some time after, under decree those notes, viz.: (1) That S. W. Loller was of court, and brought about $17,000. On the not authorized to execute them; and (2) 15th of July, 1903, A. E. Fox and M. L. Ben- that the notes were procured to be executed edum met S. A. Englehard at Pomeroy, Ohio, by fraud, and that the banks had construcand took from him an option on the property tive knowledge of it at the time they purand stock of the American Manufacturing chased them, and are therefore not innocent Company, at $96,000, out of which the debts, holders. The banks were bound to take estimated not to exceed $56,000, were to be knowledge of the extent of Loller's authoripaid. They agreed to pay cash, or to execute ty, because he was only an agent, and an satisfactory notes for the remaining $40,000, agent cannot bind his principal by exceeding in the event the option was closed. On the his authority. But the power of attorney day following A. E. Fox and M. L. Benedum authorized Loller to buy stock in any corwent to Middleport, Ohio, and met S. W. poration, formed or to be formed, and in Loller, who had gone there before them to consideration thereof to execute W. J. look over the plant. Notwithstanding they Bryan's promissory notes; and it is clearly then held an option to buy the property at proven that all the notes executed by Loller $96,000, they made Loller believe that it was were given in consideration for stock in worth $150,000, and combined and conspired corporations. The $50,000 of notes, executed with Englehard in selling it to Loller and on the 10th of June, were for stock in the themselves at that price. The debts, $56,000, Loller Manufacturing Company, and the $43,were assumed, and the balance of $94,000,000 of notes now held by the Merchants' & was settled for by Loller executing Bryan's Manufacturers' National Bank were given notes for $47,000, payable to S. A. Engle- for stock of the American Manufacturing hard, and by A. E. Fox, E. C. Fox, his brother, and M. L. Benedum giving their pretend- [1] It is urged that Loller had not power ed checks for $47,000, which were immediate- to execute negotiable notes. But to so interly thereafter returned to them by Englehard. pret the power of attorney would be to give Loller knew of the debts owing by the Amer- a restricted meaning to the word "promisican Manufacturing Company, but evidently sory" not warranted by anything contained he had no knowledge of the value of its plant. in the writing, and clearly not warranted in Indeed, it appears from the record that he law. A promissory note may or may not be had little, if any, business qualifications, negotiable, but a negotiable note is necessariand seems only to have been an unwittingly a promissory note, and the same note tool in the hands of Fox and Benedum in car- might be negotiable in one state and not rying out their scheme to defraud the old technically negotiable in another. Its quality man, Bryan. The court below found, and as commercial paper would depend upon the we think rightly so, that all of these notes law of the place of payment. The word had been procured by fraudulent means, and "promissory," as applied to notes, is used in would not be collectible if still in the hands a generic sense, while the word "negotiable" of the payee. It is unnecessary to state the simply defines a particular class of that evidence in support of this conclusion. The genera. The greater term necessarily inrecord abounds with it. The facts already cludes the less. The power authorized Lolstated indicate the character of the transac- ler to execute "promissory note or notes tions. But the notes are commercial paper, payable at such time and in such manner as and have been negotiated by the payees to my said attorney shall in his absolute disthe several plaintiffs, who claim to have ac- cretion determine." This language is comprequired title to them before maturity, in due hensive enough to give him power to execute course, and without notice of their infirmity. any kind of a promissory note and make it If such is the case, then they are not sub- payable anywhere. All the notes in question ject to the equities in favor of the maker. were either dated at McCracken, Pa., or at Middleport, Ohio, and most of them were payable in the latter state, so that, as to

The First Citizens' Bank holds seven notes, aggregating $26,000, as to all of which Mr.

Company.