Volume 44 — West Virginia Reports

Bill by Lehman, Richman & Coi, and another against Evan Hinton and others to marshal liens. From a decree for part of defendants, defendant Evan Hinton appeals.

<p>1. Tax Sales — Sheriff’s Affidavit — Deed.</p> <p>An affidavit to a list of lands sold for taxes, as recorded in the Clerk’s office of the County Court, is defective in the Sheriff’s statement that “lam not, directly or indirectly, interested in the purchase of any of said real estate, ’ ’ instead of ‘ T am not, nor have I at any time been, directly or indirectly interested,” etc.; such defect did not in fact exist in the original affidavit found in the Auditor’s office. Such defect will not affect the deed under the tax sale. (p. 20).</p> <p>2. Assessment — Tax Sales — Deed.</p> <p>The assessment of two adjoining tracts of land in the same district as one will not vitiate a deed under a sale for taxes, (p. 20).</p> <p>3. Tax Sales — Surveyor’s Report — Deed.</p> <p>The failure of the surveyor’s report and plat of a part of a tract sold for taxes to show that no improved land was included in the part, or to show that the length of the part is not more than double the breadth, will not affect a deed made under the sale. (p. 28).</p> <p>4. Tax Sales — Defects in Tax Sales.</p> <p>The failure of a list of sales to show that the sale was at the front door of the Court House, or between the hours of 10 A. M. and 4 P. m., will not affect the deed under a tax sale. (p. 29).</p> <p>5. Tax Sales — Defects in Tax Sales.</p> <p>The provisions of section 25, chapter 31, Code 1891, curing defects in tax sales, discussed, (p. 21).</p>

<p>Conthacts — Rescission of Contract — Fraud.</p> <p>Where a person enters into a contract for the purchase of a known body of coal, supposed to contain three hundred acres, but the same has been diminished to less than two hundred acres by valid conveyances of the more desirable portion thereof, made by the grantor owner to his children, without the knowledge of the purchaser, and which knowledge is withheld from him by the owner until after a deed is executed, such purchaser will not be compelled to complete such contract, but the same at his instance, will be rescinded, (p. 35).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by one Hall against the Norfolk and Western Railroad Company. Plaintiff had judgment. Defendant brings error.</p>

Bill by John Moren against the American Fire-Clay Company and others. John Francy and Carrie S. Hilsinger filed petitions to be made parties plaintiff. There was an order sustaining defendant John H. Atkinson’s demurrer to the bill, and from a decree of dismissal plaintiffs John Francy and Carrie S. Hilsinger appeal.

<p>1. Married "Woman — Charge on Separate Estate — Burden of Proof.</p> <p>Under section 12, chapter 66, Code, 1891, to sustain a charge on the separate estate of a married woman, when contested, it must appear that the debt is valid under that section. The creditor must show this. (p. 48).</p> <p>2. Married Woman — Charge on Separate Estate — Specification.</p> <p>Where it appears that money is borrowed for the purposes specified in the second clause of section 12, chapter 66, Code, 1891, the instrument charging a married woman’s separate estate must specify the purpose of the loan, (p.) 49. .</p>

Certiorari by R. E. L. Snodgrass to review the decision of the board of canvassers of Wetzel County that A. R. Thompson was elected clerk of the county court. From a decree in favor of Thompson, plaintiff brings error.

Action by the board of education of Cabin Creek district ag-ainst the Kanawha & Michigan Railroad Company. From a judgment setting aside a verdict for plaintiff, it brings error.

<p>Receivers — Foreign Partnership — Removal of Assets.</p> <p>A foreign receiver of a dissolved foreign partnership will not he permitted to remove the funds of such partnership out of this State, to the detriment of the resident creditors thereof, nor, as against the bona fide claims of the separate creditors of the members of the firm, unless he first show that such firm is insolvent, and that such funds are necessary to satisfy the demands against the same, independent of any claim thereto of the debtor partner, (p. 79).</p>

<p>1. ContkactS — Ambiguity—Parol Evidence.</p> <p>While prior or contemporaneous declarations of parties contracting' cannot he received to interpret an ambiguous written contract, yet evidence that certain alterations from the first draft of the contract were made by the parties before its execution is admissible to show their real intention, (p. 85).</p> <p>2. Contracts — Sales—Breach of Contract — Remedy.</p> <p>Where there is a contract for the sale of goods, and the purchaser repudiates the contract, and refuses to consummate it by acceptance of the goods, the seller may at once sue for damages for breach of the contract, without waiting for the period for the delivery of the goods to elapse, and without tender of them, (p. 84).</p>

Action by John Patton against M. A. Joliff to recover possession of personal property. Defendant bad judgment in tbe intermediate court, and it was affirmed by the circuit court, and plaintiff brings error.

Action by Alford Rogers against Mary A. Lynch and husband. Plaintiff had judgment against the husband, andón appeal judgment was rendered against the wife. Defendants appeal.

<p>Error to Circuí?Court, Mineral County.</p> <p>Reuben Lichtenstein was indicted for violation of liquor law, and acquitted. The State brings error.</p>

<p>Error to Circuit Court, Doddridge County. -</p> <p>Action by Joseph Cheuvront against M. C. Bee and others. Judgment for plaintiff. Defendants bring error.</p>

Appeal fi om Circuit Court, Jackson County. Bill by the Gallatin Land, Coal & Oil Company against Mary Davis and others for spe.cfic performance of a contract. Defendants appeal from a decree in plaintiff’s favor, and from a decree dismissing their bill of review.

Suit by D. W. Boug'hner and Hoffman Sommers ag-ainst J. H. Allen, Kate Allen, and the Merchants’ National Bank of West Virginia. There were decrees for plaintiffs, and certain defendants appeal.

Action by M. H. Waldron and another against W. -R. Hughes and others on a contract. There was a judgment for plaintiffs, and defendants C. O. Thompson and T. T. Brewster bring error.

Bill by Adam Weigand and others against the Alliance Supply Company, a corporation, and others, for appointment of a receiver. From a decree appointing a receiver, and from orders refusing petitioners to be made parties, certain of defendants appeal.

Action by C. I. Conaway’s administrators against James Stealey and others to subject certain property to payment of partnership debts. From decrees for plaintiffs, the defendant Ella G. Stealey appeals.

<p>1. Contracts — Implied Contracts — Building Material.</p> <p>One contracts with another to iurnish all materials for, and build complete, a house, and a third party furnishes some material used in construction, the owner of the building- knowing of his doing so, but not knowing but that the third party was furnishing such material for the contractor, and the building, when completed, is accepted by the owner from the contractor. Held, that no implied contract arises in favor of such third party to compel the owner of the house to pay for such material, (p. 176).</p> <p>2. Corporations — Board of Directors — Contracts.</p> <p>The directors of a corporation cannot separately and individually give consent to or make a contract to bind the corporation. They can act only as a board, their power, being not joint and several, but only joint, (p. 180).</p> <p>3. Verdict — Evidence—New Trial.</p> <p>When the evidence plainly, clearly, and decidedly preponderates against the verdict of the jury, this Court will grant a new trial, (p. 182).</p>

Bill by L. G. Robinsou against Edward Braiden and others to correct a deed, and to enjoin proceedings in ejectment. From a decree against her, plaintiff appeals.

<p>1. PARTNERSHIP — Partnership Ftinds — Injunction.</p> <p>The active member oí a firm deposits the funds thereof, to the amount of one thousand eight hundred dollars,' in a bank, in the firm name. The other member of the firm (who is insolvent), without the consent or knowledge of his partner, wrongfully obtains a certificate in his individual name for such deposit, and transfers it to a foreign bank. At the instance of the active member of such firm, a court of equity will enjoin the application of such funds to the payment of such certificate until the partnership can be settled in a suit for that purpose, (p. 200.)</p> <p>2. Partnership— Partnership Funds — Parties.</p> <p>The holder of such certificate is a proper party to such suit. (p. 201.)</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Action by Daniel P. Morse, as Morse & Rogers, against Emery L. Rector, surviving partner of Rector & Co., and Joel A. Rector and S. B. Ayer. Plaintiff had judgment. Defendants appeal.</p>

<p>Error to Circuit Court, Mineral County.</p> <p>Assumpsit by the West Virginia Central & Pittsburg Railroad Company against Elias Mclntire. Plaintiff had judgment. Defendant brings error.</p>

Suit by Lavernia E. Young-, as administratrix of the estate of E. L. Young-, deceased, against the West Virginia & Pittsburg Railroad Company, to recover damages. Plaintiff had judgment, and defendant brings error.

Garnishment by the creditors of Isaac J. Vanderwerker ag-ainst the Baltimore '& Ohio Railroad Company. Defendant garnishee filed a bill of interpleader. From the judgment the creditors appeal.

<p>CONTRACTS — Statute of Frauds.</p>

Bill by Georg-e T. Long against Wilson Perine to enforce a vendor’s lien. Decree for plaintiff. From an order confirming the sale, defendant appeals.

Suit by W. Brent Maxwell, as administrator of the estate of Franklin Maxwell, deceased, and others, ag-ainst J. P. Burbridg-e. From a decree for plaintiffs, defendant appeals.

<p>1. Detinue — Action on Bond — Pleading.</p> <p>In an action on a bond given by a plaintiff in detinue to obtain immediate possession of the property, under section 1, chapter 102, Code, it is not necessary to aver or prove that there was a judgment in favor of the defendant in the action settling his right to the property, and fixing its value, where the action has been dismissed or nonsuit suffered by the plaintiff, (p. 257.)</p> <p>2. Detinue — Action on Bond — Pleading.</p> <p>In an action on a bond given by a plaintiff in detinue, under section 1, chapter 102, Code, to obtain possession of the property, it is indespensable to allege and prove that the property was seized from the plaintiff under process in the case, and delivered to the plaintiff in detinue, (p. 258.)</p> <p>3. Action on Bond — Pleading—Evidence.</p> <p>A plea of “conditions performed” in an action on a bond with collateral condition controverts and calls for proof by the plaintiff of all the facts alleged by him essential to sustain his action, except that it admits the bond. (p. 258.)</p>

<p>1. Conflicting Titles — Jurisdiction of Court.</p> <p>A court of equity will not exercise jurisdiction to settle title or boundary of lands between conflicting' claimants, except where to do so is merely incidental to the exercise of its fixed jurisdiction on other grounds than adjudication upon such conflicting claims, (p. 262.)</p> <p>2. Partition — Parties—Stranger—Conflicting Titles.</p> <p>Under section 1, chapter 79, Code 1891, in a suit in equity, for partition, between parties entitled thereto, a stranger to them, claiming' the land under a right wholly denying the right under which partition is sought, and distinct therefrom and hostile thereto, cannot be made a party, and compelled to submit his title to a court of equity, (p. 262.)</p> <p>3. Cloud on Title — Equity Jtirisdiction — Possession.</p> <p>A court of equity, under its jurisdiction to remove a cloud over the title to land will not entertain a bill by a plaintiff who has only constructive, but not actual, possession, (p. 263.)</p> <p>4. Decree — Equity Jurisdiction — Res adjudicata.</p> <p>A decree, on full hearing, dismissing a bill generally, without reservation of right to the plaintiff to sue at law, is conclusive upon all the matters involved in the case, even though there was no jurisdiction in equity because of adequate remedy at law. Unless it otherwise appear from the decree, it will be taken that the dismissal was on a hearing of the merits, (p. 264.)</p> <p>5. Equity Jurisdiction — Bill Dismissed — Error.</p> <p>Where a court of equity dismisses a bill merely because there is adequate remedy at law, and no jurisdiction in equity, it should so state, or insert a clause of “without prejudice to the plaintiff to sue at law, ’ ’ or equivalent provision. It is error not to do so. (p. 26S.)</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Action by Oscar Douglass against the Kanawha & Michigan Railway Company. Plaintiff had judgment. Defendant appeals.-</p>

Suit by J. A. Peck against A. C. Chambers, L. D. Chambers, and R. N. French to set aside a deed. Decree for plaintiff. From a refusal to set aside the decree, French appeals.'

<p>1. Judgment — Equitable Relief — Evidence.</p> <p>When a defendant, by bill in equity, seeks to nullify a judgement at law obtained against him without service of process, upon unauthorized appearance by attorney, to succeed he must have a clear preponderance of evidence sustaining- the allegations of his bill. (p. 285).</p> <p>.2. Conflicting Evidence — Reversal.</p> <p>Smiths. Yoke, 27 W. Va., 639, Syl. pt. 1; Bartlett v. Cleaven-ger, 35 W. Va., 719, Syl. pt. 3; Richardson v. Ralphsnyder, 40 W. Va., 15, Syl. pt. 2, — approved, (p. 285).</p>

<p>1. Mechanic’s Lien — Enforcement—Statutory Requirements.</p> <p>Where a party seeks to create a mechanic’s lien for material furnished to a contractor, to be used in the construction of a house, he must comply substantially with the requirements of the statute, in order to create a lien on the property on which such house is erected, (p. 293).</p> <p>2. Mechanic’s Lien — Equity Pleading — Evidence.</p> <p>When the party who claims to have furnished such material for the construction of a house proceeds by a bill in equity to enforce his lien against such property, and the owner of the property, in answer to the bill, denies that the lien has been properly obtained by pursuing the statutory requirements, denies that the material was furnished by the plaintiff, the allegations of the bill must be sustained by proof, in order to obtain a decree for the sale of the property, (p. 294).</p> <p>3. Mechanic’s Lien — Equity Pleading — Evidence—Contract.</p> <p>It is not sufficient to file with such a bill the account filed with the clerk of the county court for the purpose of creating such lien, but the fact that the material was furnished to the contractor, to be used in the construction of the house, in pursuance of a contract with such contractor, must be alleged and proved before such lien will be enforced against the property; and especially is this the case when the contract is denied in the answer, (p. 294).</p> <p>4. Commissioner’s Report — Exceptions—Evidence.</p> <p>Where a cause is referred to a commissioner, and exceptions are filed to the commissioner’s report, in pursuance of section 7 of chapter 8 of the Acts of 189S, the commissioner shall, with his report, return the evidence filed in the case, including- all the evidence taken upon the execution of the reference; and it will be presumed such commissioner performed his duty in this regard, (p. 291).</p>

Bill by tlie South Penn Oil Company ag-ainst A. B. Mc-Intire, committee, and others, for an injunction to restrain defendants from interfering- with plaintiff’s possession and use of certain land. From a judg-ment sustaining- defendant’s demurrer to the bill, plaintiff appeals.

Scire facias upon a recognizance by the State against George Lambert and others. Execution was awarded the state, and Martha B. Grier brings error.

Suit by the State against James M. Poling and others on an official bond. Defendants had j udgment in part, and plaintiff brings error.

<p>Error to Circuit Court, Ritchie County.</p> <p>Frank Cross, convicted of murder in the second degree, brings error.</p>

Suit bjr C. C. Casto ag-ainst N. L. Casto and others. W. T. Greer, a defendant, being- creditor, filed a cross-bill. An exception by J. R. Casto and others to the filing- of the same was sustained, and Greer appeals.

Suit by W. J. Parsons and others ag-ainst the Baltimore Building-& Loan Association and others to declare alien on certain land, and subject the same to sale. From a decree for plaintiffs, defendant association appeals.

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by A. G. Smith against B. H. and J. W, Brown to dissolve the partnership of Smith, Brown & Co. From a decree for complainant, defendants appeal.</p>

Quo warranto by the State, on the relation of Beniah De-pue, against W. B. Matthews. From a judgment for defendant, plaintiff brings error.

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the State against William E. Nutter and others. Defendants had judgment, and plaintiff brings error.</p>

Suit by Aden Thompson against Emily Halstead and others for an injunction restraining the sale of certain land. From a decree dissolving the injunction granted, plaintiff appeals.

<p>1. Statute ok Limitations — Retroactive Statute.</p> <p>A statute changing- the period of limitation will not be applied to antecedent transactions, unless its letter or necessary intent demand a retroactive construction, (p. 400).</p> <p>2. Statute of Limitations — Atóte—Assignee—Set-off.</p> <p>An assignee of a note, suing upon it, may plead the statute of limitations against a set-off based upon a demand against the assignor, (p. 401).</p>

<p>1. Attachment — Foreign Affidavit— Verification — Amendment.</p> <p>An affidavit for an attachment, made before a notary of another state, without a certificate from a clerk or other officer of a court of record of that state, under official seal, verifying- the genuineness of the notary’s signature, and his authority to administer an oath, as required by c. 130, s. 31, Code, is bad and subject to be quashed, but may be amended, by leave of court, by appending to it such further certificate, (p. 403).</p> <p>2. Seal of Notary — Protests—Acknowledgments—Depositions.</p> <p>The seal of a notary of another state will not, alone, authenti-ticate his act, except to protest of bills of exchange and negotiable notes, and acknowledgment' of deeds. His signature alone is enough as to depositions, (p.403).</p> <p>3. Attachment — Affidavit—Amendment.</p> <p>Affidavits to obtain attachments may, by leave of court, be amended as to merely clerical or formal defects, not matters of substance, (p. 403).</p>

Suit by A. L. Bronson ag-ainst H. B. Vaughan and others to set aside a conveyance as in fraud of creditors. From a decree for plaintiff, defendant Mattie E. Vaughan appeals.

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit in equity by Burgunder Bros, and others against Jacob Zeigler. Bill dismissed, and plaintiffs appeal.</p>

Action by J. B. Ellison ag-ainst Richard Torpin, Jr., and others. Judgment for plaintiff. Defendants appeal. . Affirmed by divided court. English and McWhorter, Judges, for affirming. English, Judge, prepared an opinion, in which McWhoeter, Judge, concurred and filed a note. Brannon, Judge, being of opinion that the decree should be reversed, prepared an opinion, in which Dent, Judge, concurred.

Suit by A. A. Hanley, committee of Susan Russell, against the National Loan & Investment Company, to set aside and declare void a certain deed of trust and sale thereunder had. From a decree for plaintiff, defendant appeals.

<p>Appeal from Circuit Court, Taylor County.</p> <p>Bill by Ann M. Jarvis against the town of Grafton for an injunction. From a decree for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Suit by Luther J. Lazzell against J. Marion Garlow for an injunction. From a decree perpetuating an injunction granted, defendant appeals.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by Jacob Miller, Sous & Co. against Jacob Zeigier in attachment proceedings. From a decree dismissing the suit, plaintiffs appeal.</p>

<p>Error to Circuit and Criminal Courts, Mercer County.</p> <p>B. Z. Shumate was convicted for unlawfully retailing-liquor, and bring-s error.</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Suit by L. Wise’s Sons against R. J. Taylor and others to marshal liens. From the decree, defendant the Baltimore Building & Loan Association appeals.</p>

<p>1. Equity Pleading — Pleas in Bar.</p> <p>A plea which alleges the joint ownership of plaintiff with another in the subject-matter of the suit, which is entirely pecuniary, is not a good plea in bar of a bill in chancery. (p SOI).</p> <p>2. Equity Pleading — Answer—Immaterial Allegations.</p> <p>Mere litigious and immaterial allegations in an answer to a bill in chancery need not be replied to, as they do not present a substantial issue for the consideration of the court, (p. 502).</p> <p>3. Purchase Money Note —Assignment—Estoppel by Pleading.</p> <p>Where the maker of a note given for purchase money, in defense of a bill filed by the assignee thereof, claims that the assignor, being- the original holder, has not parted with his property therein, but the assignment was made for collection alone, and such assignor, being a party defendant, answers denying any interest in such note, such answer will be regarded as a solemn admission of record conclusively barring any right the’ assignor may have in such note in so far as such maker is concerned; and it is error to allow such maker to put such admission in issue by filing- a special replication to such answer; as it is wholly immaterial, (p. S02).</p> <p>4. Purchase Money Note — Assignment—Lien.</p> <p>The assignment of a purchase-money note carries with it the lien given in security thereof, (p. S02).</p>

Bill by Burns Bros, and others against George W. Hays and others to subject lands. From a decree for plaintiffs, defendants appeal.

<p>Error to Circuit Court, Fayette County.'</p> <p>Action by Laban Guinn ag-ainst Georg-e W. Bowers to recover damag-es for a trespass. From a judgment for defendant, plaintiff bring-s error.</p>

<p>1. Corporations — Foreign Corporations — Suits.</p> <p>A suit against a foreign corporation may be brought in any county wherein it has estate or debts due it. It is a “non-resident,” under clause 3. chapter 123, Code 1891. (p. 514).</p> <p>2. Notary Public — Certificate to Affidavit.</p> <p>A certificate to an affidavit having the caption, “State of West Virginia, County of Summers, to wit,” and, after signature of affiant, closing, “Taken, subscribed, and sworn to before me this 22d day of December, 1896, in Summers county. T. 'N. Read/Notary Public,” — sufficiently shows that Read is a notary of Summers county, (p. 515).</p> <p>3. Corporations — Foreign Corporations — Attorney of Record.</p> <p>The appointment by a foreign corporation of an attorney in this State to accept service of process does not make it a domestic corporation, (p. 516).</p> <p>4. Corporations — Foreign Corporations.</p> <p>A statute merely enabling a foreign corporation to hold property or do business in this State does not make it a domestic corporation. (p. 516).</p> <p>5. Corporations — Office Jridgment — Affidavit of Attorney.</p> <p>An affidavit in a case required of a defendant under section 46, chapter 125, Code 1891, made for a corporation by its attorney therein, not importing that he is conversant with the facts, but stating that he verily believes, from information given him by the corporation, that nothing is due the plaintiff, is not a sufficient affidavit with a plea to set aside an office judgment, (p. 517).</p> <p>6. Office Judgment — Affidavit.</p> <p>The affidavit required of a plaintiff by section 46, chapter 125, Code 1891, may be filed at any time before judgment is entered, (p. 516).</p> <p>7. CORPORATIONS — Pleading—Verification of Pleading.</p> <p>Who may verify a pleading for a corporation, (p. 517).</p> <p>8. Waiver of Motion — Pleading.</p> <p>An overruled motion to quash a writ or return, made alone be* fore any other defense is presented, is not waived by a subsequent plea. (p. 517).</p> <p>9. Appeal — Pleading—Record.</p> <p>If a plea is rejected, and neither bill of exception nor exception on the record appears, the plea will not be considered in this Court, (p. 518).</p>

Elizabeth Emblem and another were convicted of unlawfully leasing- a certain house. Elizabeth Emblem applied to the circuit court for a writ of error, and from an order refusing- the writ she appeals.

<p>Error to Circuit Court, Putnam County.</p> <p>Action by the Wells-Stone Mercantile Company against Albert H. Truax and others. From a judgment for plaintiff, defendants bring error.</p>

Action by Berry & Son against the West Virginia & Pittsburg Railroad Company. Judgment for plaintiffs in justice court. Trial de novo on appeal with the same result, and defendant brings error.

<p>Appeal — Title to Land — Jurisdictional Amount.</p> <p>Where a sum less than one hundred dollars is decreed as a lien against land, and a sale directed, it is not a case involving title to land, and the defendant cannot appeal, (p. S47).</p> <p>2. Appeal — Set-off—Jurisdictional Amount.</p> <p>Where a set-off claimed to he over one hundred dollars is disallowed, its amount tests the jurisdiction of this Court upon appeal, (p. S47).</p> <p>3. Appeal —Jurisdictional Amount — Amount Claimed.</p> <p>It is the amount claimed by the plaintiff in his declaration or bill, or by a defendant in his plea or answer of set-off, not the amount found due to either, which tests the right to a writ of error or appeal for them, respectively, as regards jurisdiction, (p. 547).</p> <p>4. Set-Off — Judgment—Demand.</p> <p>A judgment may be set off against a judgment, but a demand not reduced to judgment cannot be set off against a judgment, (p. 548).</p> <p>5. Appeal — Jurisdictional Amount.</p> <p>If an error in a pecuniary matter is less than one hundred dollars, it will not reverse a judgment or decree, (p. 548).</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Suit by George W. Graves and others against Mary E. Hedrick and others. From the decree rendered, Mary E. Hedrick and another appeal.</p>

<p>1. Husband and Wife — Gift to Wife — Fraudulent Conveyance.</p> <p>A husband may make a donation to his wife or return her a loan of money received, augmented by profits, if he retain an amount of tangible pi-operty largely more than sufficient to pay all his just indebtedness. gp. 5S7.)</p> <p>2. Equity Jurisdiction — Allegations of Fraud — Legal Claim.</p> <p>Mere allog-ations of fraud, denied by answer and unsustained by proof, will not justify a court of equity in taking jurisdiction of a contested legal claim, (p. SS8.)</p>

<p>Appeal from Circuit Court, Jackson County.</p> <p>Suit by George S, M. King against one Burdett and others. From a decree for plaintiff, defendants appeal.</p>

Action by W. S. Laidley ag-ainst the county court of Kanawha county. Verdict for plaintiff for a less amount than his claim. His motion for a new trial being- overruled, and judgment entered on the verdict, plaintiff brings error.

Action by the Pinnacle Coal Company against the Norfolk & Western Railway Company to recover for overcharge for carriage of coal. Plaintiff had judgment, and, a writ of prohibition to prohibit the carrying- of the judgment into execution being denied, defendant brings error.

Action by W. D. Sigler, against Dillon Beebe’s Son. Plaintiff had judgment, and, defendant’s motion for a new taial being overruled, he brings error.

<p>Error to Circuit Court, Mingo County.</p> <p>Action by the State, for the use of W. H. Smith and R A. Wilson, against N. J. Keadle, sheriff, and others. Defendants had judgment, and plaintiff brings error,</p>

Action by the State for the use and benefit of Smith and Wilson, against N. J. Keadle, sheriff of Mingo county, and others. From an order sustaining a motion to quash, plaintiff brings error.

<p>l. Master and Servant — Master's Liability — Mine Owner — Negligence of Mine Boss.</p> <p>It is the duty of an operator or agent of a coal mine to employ a competent mine boss under and according- to the provisions of section 11, p. 995, Code 1891, Append., and, having done so, he has'discharged his duty to his employes in relation to those duties which the statute prescribes shall he performed by such mine boss, and the operator or agent is not liable for injuries arising from the negligence of the mine boss. (p. 605).</p> <p>2. Fellow Servant — Mine Boss — Negligence of Mine Boss.</p> <p>A mine boss so employed is such a fellow servant as, in case of an injury to other employes through his negligence, the master is not responsible, (p. 605).</p>

<p>1. Partnership— Formation of Partnership — Written Articles— Parol Contract.</p> <p>No particular form or solemnities are required to constitute a partnership between parties. It is sufficient that it is formed by . the voluntary consent of the parties whether that be expressed or implied; whether it be by written articles or unsolemn writing's; or whether it be by tacit approbation, or by parol contract, or even by mere acts. . (p. 610).</p> <p>2. Motion for New Trial — Evidence—Conflicting Evidence— Appeal.</p> <p>Upon a motion for a new trial, where the same has been overruled and an exception taken, all the evidence whether conflicting or not, must be certified, and this Court must Consider all such evidence on both sides, though conflicting, not rejecting any. (p. 611).</p> <p>3. Evidence — Conflicting Evidence — Setting Aside fudgmenl.</p> <p>If upon such evidence the finding of the jury or judge plainly appears to be contrary to the evidence or without sufficient evidence, or plainly against the decided and clear preponderance of evidence, it ought to be set aside, even though the evidence be conflicting, (p 611).</p>

Circuit Court, Ohio county. Suit by Mary H. and Lewis S. Delaplain against Jacob W. Grubb and others to set aside certain conveyances. There was a decree for defendants, and plaintiffs appeal.

Action by the Greenbrier Industrial Exposition against J. M. Ocheltree'. Verdict for plaintiff. New trial denied, and judgment entered on the verdict. Defendant brings error.

Suit by Henry Stanton Hoback, by his next friend, against Annie M. Miller and others, to set aside a decree of sale, and the sales made thereunder. There was a decree for plaintiff, and the Mutual German Savings & Loan Association, defendant, appeals.

<p>Error to Circuit Court, Tucker County.</p> <p>Action by I. D. Junkins against the Hamilton Lumber Company. The judgment for plaintiff was reversed, and he brings error.</p>

Action by E. V. McMaster against P. J. Dyer to recover damag-es for unlawfully selling liquors to her minor son. Plaintiff had judgment, and defendant brings error.

<p>Faase Pretense— Indictment -Snfficency of Indictment,</p> <p>The record of an indictment, in these words : “An indictnren against Charles Gibson and Dana Geyer for obtaining property by false pretense. No. 1. A true bill. H. F. Jones, Foreman, ” —is sufficient, although the language used does not contain every element of the offense charged, (p. 6S0).</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Suit by Morgan Billingsley against A. R. Menear and others. From a decree for plaintiff, defendant Fannie Menear appeals.</p>

Actions by W. P. Cecil and others and J. R. Hall and others, respectively, against E. W. Clark and others, trustees of Flat Top Coal Land Association. These suits were united, and tried together. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by John H. Hostler, Jr., against George W. Marlowe and others. From a decree.for defendants, plaintiff appeals.</p>

<p>1. Constitutional Law — General Act — ■Special Act.</p> <p>A statute relating- to persons or thing's as a class is a g-eneral law; one relating to particular persons'or things of a class is special, (p. 712).</p> <p>2 Acts of the Legislature — Title of Act.</p> <p>If the title of an act is broad enough to cover its enactment, and give fair and reasonable index to the purpose of the act, it need not descend to particulars of the enactment, (p. 712).</p> <p>3. Vested Interests — Statute of Limitations — Constitutional Law.</p> <p>‘ Where title to property has vested under the statute of limitations, no act can, by extending the statute or reviving the remedy, impair such title. It would be unconstitutional, because depriving one of property without due process of law; but where the demand is on contract, or any class of action where the statute merely gives a defense, and does not vest property, there is no vested right to such mere defense, and the legislature may, by repeal of the statute or otherwise, revive the action, and deprive one of such defense, (p. 713).</p>

<p>1. Vendor’s Lien — Enforcement—Equity Pleading.</p> <p>When suit is brought to enforce a vendor’s lien, and sales have been made by the vendee of portions of the land against which the lien is sought to be enforced, and the plaintiff files an amended bill, making the purchasers of such portions parties defendant, but fails to set out in such amended bill the interests of such parties, and the dates of their respective purchases, by exhibiting copies of the conveyances to them, or otherwise, such amended bill is demurrable, (p. 724).</p> <p>2. Vendor’s Lien — Enforcement—Decree—Error.</p> <p>In such case it is error to decree the sale of the residue of the unsold land remaining in the hands of the vendee until the respective dates of the several subpurchases have been ascertained by the court and set out in the decree, unless it clearly appears that such residue will be sufficient to pay off and discharge the lien so enforced, (p. 723).</p>

Barbour county. Sait by John D. Pickens and another against Byron Love’s administrator and others, to subject lands to debt. From a decree for plaintiffs, defendants appeal.

<p>Error to Circuit Court, Mingo County.</p> <p>Lando Lane was convicted of manslaughter and brings error.</p>

<p>1. Insurance — Previous Insurance— Void Policy,</p> <p>Where a party applying for a policy of insurance fails to in form the insurance agent to whom his application is made that he already has taken out insurance on the property, if such insurance already taken outis void, this fact will not operate to release said second policy, (p. 738).</p> <p>2. Insurance — Application—Interest of Insured — Policy.</p> <p>If an insurance company elects to issue its policy of insurance against a loss by fire without any regular application, or without any representation in regard to the title to the property to be insured, it cannot complain, after a loss has occurred, that the interest of the insured was not correctly stated in the policy, or that an existing incumbrance was not disclosed, (p. 739).</p> <p>3. ' Insurance — Deed of Trust — Sole Ownership.</p> <p>The fact that at the time a policy of insurance is obtained upon a stock of goods the insured has already executed a deed of trust on said property is not inconsistent with sole ownership of said property, nor does it make the cestui que trust a joint ’owner, (p. 739).</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by John J. Adams against John W. Irwin and others. Decree for plaintiff, and Grace Ebert appeals.</p>

Suit by David Burns and others against William Mearns for an injunction. The injunction granted was dissolved, and plaintiffs appeal.