Volume 47 — West Virginia Reports

<p>1. Circuit Court — Jurisdiction.</p> <p>Where the circuit court of a county is without jurisdiction under any of theclauses'of sectionl, chapterl23, Code amended by chapter 46, Acts 1897. it cannot obtain jurisdiction by reason of service of process in any other county, except as ag-ainst a railroad, canal, turnpike, telegraph or insurance company, (p. 2.)</p> <p>2. JUDGMENT BY DEFAULT.</p> <p>A judgment by default, rendered without jurisdiction, under chapter 123, Code, amended by chapter 46, Acts 1897, is void, and may be-vacated on motion, (p. 3.)</p>

<p>1. Appeal — Justice ofdhe Peace.</p> <p>An appeal by a party to a cause in a justice’s court operates as a general appearance in the appellate Court, and gives that Court jurisdiction of the person of the appellant, and as a general rule the irregularities in the proceedings before the justice are waived by an appeal, (p. 6.)</p> <p>2. Summons — Unlawful Detainer.</p> <p>A case in which the language of the summons is sufficient to charge the defendant with unlawfully withholding the property therein described, and in which the property is deseribed with convenient certainty, (p. 6.)</p>

<p>Error to circuit court Ritchie County.</p> <p>Action by D. H. Miller against W. B. Holt. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judici'l Sale — Title.</p> <p>The title of a purchaser of property under a decree or order will not fall with its reversal or setting' aside; he not being a a party, and all persons holding an interest in the land sold being parties, (p. 15.)</p>

<p>Error to circuit court, Randolph County.</p> <p>Proceeding on notice by George W. White against N. Christy. From the judgment, White brings error.</p>

<p>Appeal from circuit court, Brooke County.</p> <p>Action by Abba E. Hogg against Henry Browning and others. From the decree, complainant appeals.</p>

<p>1. Receiver — Report.</p> <p>A special receiver’s report of his accounts has no binding- force in the case unless confirmed by the court, (p. 28.)</p> <p>2. Receiver — Commissioner.</p> <p>a special receiver may be required by the court, at the instance of any party interested, to make settlement before a.commissioner; and a commissioner is not bound to take as correct the report of his accounts made by the receiver, (p. 28.)</p> <p>3. Receiver — Settlement.</p> <p>A settlement of a receiver’s accounts made by a commissioner is taken to be right as to matters of fact, unless intrinsic or other evidence manifests errors in it. (p. 28.)</p> <p>4. Commissioner — Report.</p> <p>If a commissioner fail to return, as he should do, with his report, the evidence before him, the party desiring it must ask the court to require its production; else, he cannot make its absence a ground of error, (p. 30.)</p>

<p>1. Demurrer — Pleading and Practice.</p> <p>When a demurrer to a declaration is overruled, and the order overruling it shows the fact that nothing was alleged by the de-murrant in favor of his demurrer, and final judgment is obtained by the plaintiff in the case, the judgment will not be reversed by reason of any defect in the declaration, (p. 33.)</p> <p>2. Record — Bill of Exceptions.</p> <p>A paper purporting to be a bill of exceptions and copied into the record as such, will not be regarded or treated by the appellate Court as a part of the record, unless the record shows that it was by some order or memorandum entered on the order book of the trial court, made a part of the record, (p. 34.)</p>

<p>1. Appeal and Error — Evidence.</p> <p>All assignments of error founded on doubtful and conflicting questions of evidence will be disregarded or overruled by this Court unless it is plainly manifest that the circuit court has erred against the true preponderance of the evidence, (p. 36.)</p> <p>2. Special Judge — Qualifications.</p> <p>A litigant who without objection joins in the selection of a special judge to hear and determine his case will not be permitted to raise mere technic?! objections to the selection and qualification of such judge after he has decided against such litigant, (p. 37.)</p>

<p>Appeal and Error.</p> <p>Unless plainly erroneous, the decrees of the circuit court will not be disturbed, (p. 33.)</p>

<p>Appeal and Error.</p> <p>A decree of a circuit court founded on conflicting- and contradictory testimony will not be disturbed unless plainly erroneous, (p. 44 )</p>

<p>Appeal from circuit court, Preston County.</p> <p>Bill by Harrison Zinn* and others against M. W. Dawson and Llovd C. Shaffer. Decree for plaintiffs. Defendants appeal.</p>

<p>1. Decree — Recitals.</p> <p>The recitals of a decree which is directly attacked for fraud and surprise in the procurement are not presumed to be absolute verities, but are subject to impeachment, (p. S3.)</p> <p>2. Decree — Impeachment.</p> <p>A decree of confirmation founded on a false report of sale made may be impeached by an interested party guiltless of culpable fraud or neglect, (p'. 52.)</p> <p>3. Diminution of Record.</p> <p>A litigant suggesting a diminution of the record, and obtaining from this Court a writ of certiorari, must have the alleged omitted portions of the record copied at his own expense, and th e certiorari will be regarded as abandoned on his refusal to do so. (p. SS.)</p>

<p>1. Appeal and Error — Evidence.</p> <p>When the question is whether a fact has been established by the evidence, either directly or inferentially, in favor of the demurrer, a fair test is furnished by the inquiry, would the court set aside the verdict, had the jury, on the evidence, found the fact? (p. 57.)</p> <p>2. G-aming — Justice of the Peace.</p> <p>A case in which the testimony shows that the plaintiff lost to the defendants, betting’ at faro, within twenty-four hours, two hundred and seventy dollars, and paid or delivered the same to them, and was entitled to recover it back by suit before a justice of the peace, (p. 58.)</p>

<p>1. Way of Necessity — Natural Gas — Pipe Lines.</p> <p>If a land owner conveys a right of way through his farm in fee to a railroad company, and years afterwards natural gas is found on his lands situated on the further side of such right of way from his residence, the law will imply a way of necessity by which he may pipe such gas to his residence for use therein; the pipes to be so laid and constructed as not to interfere in any wise with such railroad company’s proper use and occupation of its right of way. (p. 61.)</p>

<p>Appeal from circuit court, Wetzel County.</p> <p>Bill by M. B. Potts against W. R. Fitch and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Mining Partnership — Oil Lease.</p> <p>Where tenants in common or joint tenants of an oil lease or mine unite and co-operate in working- it, they constitute a mining partnership, (p. 72).</p> <p>2. Mining Partnership— Control.</p> <p>When members of a mining partnership cannot agree in management, those having a majority interest control its management in all things necessary and proper for its operation. (p. 73).</p> <p>3. Mining Partnership — Dissolution.</p> <p>A sale of his interest by a member of a mining partnership to another member or a stranger does not dissolve the partnership, as in ordinary partnerships, (p. 74).</p> <p>4. Mining Partnership — Negligence of Partner.</p> <p>If loss come to the firm by the culpable negligence or breach of duty or wrongful conduct, or diversion of the social property from the firm’s business to other business by one member, he is personally accountable therefor in an accounting between the members, (p. 75).</p> <p>5. Mining- Paetneeship — Lien for Advancement.</p> <p>Partners have a lien on a social property for advances or balance due them, after debts; but if they have divided the property or product of the business, giving each his share in severalty, and separating it from the balance, no such lien exists tin the property or product so actually divided. Such is the case with “division orders” in oil mining, (p. 75).</p> <p>6. Mining Paetneeship — Dissolution.</p> <p>If a bill is filed by a member of a co-partnership for dissolution and account, and cause is shown for dissolution, there should be a decree of dissolution and full account, not one allowing the partnership to continue its business, and making only a partial account, and decreeing on its basis in favor of one against another member for a balance on such partial account, leaving assets untouched by the account, (p. 78).</p> <p>7. Mining Paetneeship — Dissolution Receiver.</p> <p>When cause is shown for dissolution of a partnership, and the members are discordant and at ill will, and the partnership hopeless of prosperity, it should be dissolved, and a receiver and manager appointed, instead of leaving its assets and business wholly in the possession and control of one member, excluding the other, (p. 78.)</p> <p>8. Mining Paetneeship — Equitable Relief.</p> <p>Equity, as a general rule, does not entertain a bill for account between partners unless a dissolution and winding up are asked, and cause therefor shown. Then there should be dissolution and full final account, (p. 78).</p>

<p>1. Deposition — Signature.</p> <p>Though regular to have a witness to sign a deposition, yet its omission will not suppress the deposition, (p. 81),</p> <p>2. Deposition — Certification.</p> <p>■ Though regular in depositions to state in the caption or closing certificate the names of the witnesses, yet its omission will not suppress the depositions, if it is certified in effect, in caption or certificate, that the depositions were duly taken, sworn to, etc., so as to identify them. (p. 81).</p> <p>3. Deposition — Reading to Witness.</p> <p>Depositions taken in shorthand by the stenographer, and after-wards written out in longhand by the stenographer, but not read to or by the witnesses after being written in longhand, if objected to, cannot be read, though the stenographer certifies that they were fully and truly written out by him in longhand in the words spoken by the witnesses, (p. 81).</p>

<p>1. Estate at Will — Termination.</p> <p>“If one party may terminate an estate at Ms will, so may tlie other. The right to terminate is mutual.” Oowm v. Iron Oo., 3 S. E. 120, 83 Ya. 347. (p. 87).</p> <p>2. Oil Lease — Right to Siirrender.</p> <p>An executory gas and oil lease, which provides for its surrender at any time, without payment of rent or fulfillment of any of its covenants on the part of the lessee, creates a mere right of entry at will, which may be terminated by the lessor at any time before it is executed by the lessee, (p. 88).</p> <p>3. Oil Lease — Effect of New Lease.</p> <p>The execution of a new lease to other lessees, and possession thereunder, render such prior executory lease invalid, (p. 88).</p> <p>4. Oil Lease — Equity.</p> <p>■ An executory lease that is unfair, unjust, or unreasonable will not be enforced in equity. (p. 89).</p> <p>5. Contract — Mutuality.</p> <p>If one party to a contract is not bound to do the act which forms the consideration for the promise, undertaking, or agreement of the other, the contract is void for want of mutuality. (p. 102.)</p>

<p>Appeal from circuit court, Wetzel County.</p> <p>Bill by J. C. Trees, against the Eclipse Oil Company and others. Decree for plaintiff. Defendants appeal.</p>

<p>Error to circuit court, Upshur County.</p> <p>Action by H. B. B. Amos against G. F. Stockert. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Receiver — Application—Appointment.</p> <p>Interlocutory applications for a receiver before answer are usually supported by affidavits of the grounds relied upon, and it would ordinarily seem to be sufficient if the facts upon which the application is based are verified by the affidavit of plaintiff alone, (p. 129.)</p> <p>2. Receiver — Appointment.</p> <p>The appointment of a receiver being for the preservation of the property and the protection of the litigants pending the suit, such appointment gives no advantag-e to the person.at whose instance it is made, nor does it change any title or create any lien. (p, 130.)</p> <p>3. Equity — Receiver—Case at Riiles.</p> <p>In a suit in equity, brought for the purpose of having- a receiver appointed, the court, or the judge thereof in vacation, may, upon a proper presentation of facts, appoint a receiver, and direct the sale of property; but while the case is still at rules, and not matured ror hearing, the court cannot proceed to enter a decree settling the principles of the cause and distributing the money, (p.130).</p>

Bill by the Winifrede Coal Company and others against the board of education of Cabin Creek district and others. Decree for plaintiffs and defendants appeal.

<p>Appeal from Circuit Court Harrison County.</p> <p>Bill by Sarah Boggess and D. W. Boggess against Mary R. Goff. Decree for complainants, and they appeal.</p>

<p>PROCESS— Officers — Return—When prima facia.</p> <p>An officer’s return on judicial process cannot be contradicted by the parties or their privies as to such facts stated in it as the law requires to be stated, unless the party collude with the officer to make a false return. This rule prevails in law and equity. As to notices for depositions, or other notices hot judicial process, the return is only prima facie evidence .of such fact. (p. 151).</p>

<p>Appeal from Circuit Court, Ritchie County.</p> <p>Bill by E. C. Goff against John A. McBee and others. Decree for plaintiff, and defendant McBee appeals.</p>

<p>1. INSOLVENCY.</p> <p>A person is insolvent, within the meaning of section 2, chapter 74, Code, when all his property is not sufficient to pay all his debts, (p. 170).</p> <p>2. Purchase of Redemption— Valid Lien Not Affected by.</p> <p>A valid lien is not devested by the mere fact of the holder of it subsequently taking a transfer of the equity of redemption, made to him with a view of giving him a preference, and in violation of section 2, chapter 74, Code. (p. 177).</p> <p>3. Insolvency — Purchase— Good Faith Priority.</p> <p>A creditor, who purchases and has transferred to him real estate from an insolvent debtor, in g'ood faith, without knowledge of the insolvency, applying his debts on account of the purchase price, and paying in cash the residue of the purchase price, in a proceeding to set aside the preference given him under section 2, chapter 74, Code, he is entitled to preference. for the cash paid, under said section, as “a bona fide debt contracted at the time such transfer was made” to him. (p.,175).</p> <p>4. Assignment — Account—Payee Protected.</p> <p>An assignment of an account, or an order to one who owes the account, to pay the amount due thereon, or any specific part of it, to the payee in'the order, is such a transfer of an evidence of debt as will be protected by the last provision of section 2, chapter 74, Code. (p. 179).</p>

<p>Appeal from circuit Court, Tyler County.</p> <p>Bill by E. II. Jennings .and others against Clint Moore and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Nuisances— Oil and Gas Wells.</p> <p>Oil and gas wells are not nuisances per se. "Whether they are nuisances to a dwelling- house and its appurtenances depends on their location, capacity, and management, (p. 107).</p> <p>2. Oil and Gas Well — Abatable Nuisance.</p> <p>When such a well has such caiiacity, management, and location with regard to a dwelling house and its appurtenances as to materially diminish the value thereof as a dwelling, and seriously interfere with its ordinary comfort and enjoyment, it is an abatcable nuisance, (p. 106).</p> <p>3. Unlawful Opeeation — Enjoined.</p> <p>If there is any way that such well "can be operated so as not to make it such nuisance, only the unlawful operation thereof will be enjoined, (p. 200).</p>

<p>Appeal from Circuit Court, Gilmer County.</p> <p>Bill by John C. McCoy against W. H. Jack and others. Decree for complainant, and defendant Jack appeals.</p>

<p>1. Equity JURISDICTION— Adverse Title.</p> <p>A court of equity has no jurisdiction to settle title to real estate between adverse claimants unless the plaintiff has some equity against the party claiming adversely to him. An equity against other persons will not give such jurisdiction. (p. 214).</p> <p>2. Title — Cloud—Possession—Equity.</p> <p>Those only who have a clear legal and equitable title to land, connected with actual possession, have a right to claim the interference oí a court of equity to give them peace, or dissipate a cloud on their title, (p. 214).</p> <p>3. Commissioner’s Sale — Deed—(7otor of Title.</p> <p>A deed made by a special commissioner in a chancery cause, under a decree confirming the sale, purporting to convey the real estate described in the deed, gives color of title in the grantee*, notwithstanding irregularities in 1he proceedings in such cause and sale. (pp. 214-215).</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Suit by Virginia JB. Hays against E. A. Freshwater and others. Decree for plaintiff, and defendant Freshwater appeals.</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Action by Edward M. Atkinson against W. Ii. and J. F. Winters. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Bill by W. F. Boyd and Archie P. Boyd and others ag-ainst W. J. Brown. Decree for plaintiffs, and defendant appeals.</p>

<p>1. Insolvent — Assignment — Vendor’s Lien — Purchaser — Caveat Emptor.</p> <p>Where a party who is insolvent makes a general assignment of his property, for the benefit of all of his creditors, to a trustee, and in said deed of assignment two parcels of real estate are conveyed, upon each of which the assignor owes a balance of purchase money, secured by vendor’s lien, which tracts are advertised and sold by the trustee, without mentioning the liens in the notice of sale, to a party who is a large creditor of the assignor, for an adequate price, without reference to the liens, caveat emptor does not apply, and such purchaser, in the circumstances, has the right to discharge such liens out of the purchase money, (id. 253.)</p> <p>2. Creditors — Application of Proceeds.</p> <p>The other creditors of said assignor in such case would not be allowed to participate in the distribution of the proceeds of the sale until the amount of said liens is deducted therefrom and applied to the extinguishment of said liens, (pp. 253-254.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Boggess, Darst & Boggess against G. W. Taylor. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. CONTRACT. Intoxication Void Demurrer.</p> <p>Where a plaintiff in his bill alleges that he was induced to sign a contract while in a state oí intoxication to such a degree as not to know the true intent 03- meaning of the same, such contract is no! only voidable, but absolutely void, on demurrer. (P- 362.)</p> <p>2. Contract — Good Faith — Partners—Fraud.</p> <p>Where such bill alleges that the contract so obtained was in violation of the rights and good faith which should prevail between partners, and charges that the same was obtained through fraud, and for the purpose of delaying and defrauding the plaintiff from obtaining his full rig-hts in said co-partnership, it is error to sustain a demurrer to such bill.</p> <p>(pp. 260-261-262.)</p>

Bill by J. C. Arbogast against John T. McGraw and others. From the decree, and from an order dismissing R. S. Turk as special commissioner, Turk and plaintiff appeal.

<p>1. Instruction— Opinion.</p> <p>Instructions given by the trial court, on its motion, in a felony case, which may convey to the jury the opinion of the court as to the guilt of the accused, are improper, (p. 260.)</p> <p>2. Instructions — Evidence.</p> <p>Instructions asked by the accused which properly propound the law, are justified by the evidence, and present to the jury a phase of the case not presented in other instructions, should be given, and it is reversible error to refuse them. (p. 272.)</p>

<p>1. Railroad Aid — Condition Precedent— County Bonds.</p> <p>If a proposal submitting to a vote of the people a subscription to aid the construction of a railroad provides that it “shall not be available or paid to the said railroad company until the roadbed of the same shall have -been completed ready for the ties and rails,” it is a condition precedent, and of the essence of the proimsal and contract under it, and there is no rig-ht. in the company to payment prior to such completion. The count court has no power to issue bonds under such subscription, and place them in hands of a third party, to be delivered to the company on such completion, in advance of such completion; and the dejiosit in escrow does not enlarge its rights, and it has no vested right under the deposit, because of such deposit, in advance of such completion of 1he road. (p. 273.)</p> <p>2. SUBSCRIPTION Forfeited — Bonds Canceled.</p> <p>An order of the county court under.a vote of the people making a subscription to the construction of a railroad directs bonds to issue'in payment, and to be deposited with a bank, to be thereafter delivered to the railroad company upon the condition that it shall complete the road, ready for ties and rails, by a given day, with the proviso that if the road should not be completed by that day the subscription should be forfeited, and the bank should deliver back to the court such bonds, and the road is not so completed by the day given. Hehl, that the subscription is forfeited, and the court may reclaim the bonds from the bank and cancel them. (pp. 273-275.)</p> <p>3. Time— Compliance — ¡Subscription.</p> <p>A reasonable limit of time for the completion of a railroad in a subscription by a county to it is valid, and is of the essence of the subscription, and compliance with it is essential to entitle the company to the subscription, (p. 278.)</p> <p>4. Limit — Construction—Vote.</p> <p>A county court making' a subscription to the construction of a railroad may insert a limit of time for its completion, or any terms and conditions reasonable and prudent to protect the public, not contravening- anything in the vote of the people or in the statute, (p. 277.)</p> <p>6. Terms— Condition — Estoppel.</p> <p>A railroad company accepting a county subscription as made by a county court accepts it as tendered by the county court, with all its terms and conditions, and is estopped from saying that such terms and conditions are void or unreasonable. (p. 278.)</p> <p>6. Time — Subscription— Forfeit.</p> <p>If a railroad company engage, in consideration of a county subscription to its work, to complete its railroad by a given . time or forfeit the subscription, and fail therein, a court of equity will not relieve it from the forfeiture, (pp. 280-2S1.)</p> <p>7. Contract — Belief— Equity.</p> <p>J f one asks equity to relieve him from the consequences of his failure to perforin his contract, in cases where such relief may be given, yet, if he does not aver and show clearly a present ability to perform, no relief will be given him. (p. 281.)</p>

Five suits by the Keneweg- Company and others against Schilansky & Schatz and others. Judgments for plaintiffs, and M. Schidlovsky and others appeal.

<p>1. Partitiont— OU and Gas — Void.</p> <p>Partition of oil and g'as owned by co-owners separate from the surface cannot be decreed, except by sale and division of the proceeds. A judicial partition thereof by assignment of the oil and g'as under sections of the surface is void. (p. 399).</p>

<p>Appeal from Circuit Court, Mineral County.</p> <p>Bill by Susan B. Seymour and others against Nimrod Alkire and others. Decree for plaintiffs, and defendants appeal.</p>

<p>1. Competition — Contract—Consideration.</p> <p>Withholding competition, when not contrary to public policy, is a sufficient binding- consideration for a contract, (p. 313).</p> <p>2. Equity — Specific Performance.</p> <p>Two men, who are eng-ag-ed in buying- lands in the same section of tlie country, to avoid competition, and secure the lands at ¡i reduced price, agree that one shall buy for both, and that the lands so purchased shall be divided between them according- to certain well-lcnown surveys. One retires from the business, and the other goes on and buys the lands according-to the agreement, but takes the deeds in his own name. He afterwards transfers them to a third party, who promises to'discharge the agreement to divide, but afterwards refuses to do so. Equity will enforce specific performance, (p. 313).</p> <p>3. Deckee — Evidence—Preponderance.</p> <p>If the evidence is conflicting and contradictory to such an extent that reasonable men may differ as to the true pre- . ponderance thereof, this court will not reverse the finding of ' the circuit court. To secure such reversal, the evidence, when sifted, must plainly preponderate against the decree, (p: 315).</p>

<p>1. Water-Course — Abstruation—Damage.</p> <p>A valer course consists oí bed, bank, and water. Yet the water need not continually flow, as many streams are sometimes dry. There is a difference between a water course and an occasional outburst of water which, at times ol freshet, from rain or snow, descends from the hills and inundates the country. To be a water course, it must appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. For obstructing- or diverting- a water course, and thereby damaging- another, the party is liable, (p. 319).</p> <p>2. Surface-Water — Abslruation—Damage.</p> <p>Surface water is water of casual, vagrant character, oozing-through the soil, or diffusing- and squandering over and under the surface, which, though usually and naturally flowing in known direction, lias no banks or channel cut in the soil: coming from rain and snow, and occasional outbursts in time of freshet, descending- from mountains or hills, and inunda 1-ing the country; and the moisture of wet, spongy, springy, or boggy land. For obstructing or diverting- surface water, though damaging another, the party is not liable, (p. 319-320).</p> <p>3. -OWNER’S Right — Crop—Damage.</p> <p>The owner of land, who has leased it to a tenant for a share of the crop, may sue for a tort of a wrongdoer damaging the growing crop. (p. 321).</p>

<p>L Attachment — Levy—Lien.</p> <p>An attachment, is a lien on personal estate from levy though no bond be given to authorize the officer to take possession, and one purchasing- of the debtor with notice of the levy takes subject to it. (p. 334).</p> <p>2. Appeals — Joinder.</p> <p>"Where one party only appeals, and the rights of him and another stand on distinct and separate grounds, and are not equally affected by the decree or judgment, that appeal will not bring up for adjudication the rights of the other; but when their rights are not only involved in the same question, but equally affected by the decree or judgment, the appeal ot-oñe will call for an adjudication of the rights of the other not appealing. Jlut in the former case, if the party not appealing appears in the appellate court and assigns error, he unites in the appeal, and his case will be considered, (p. 335).</p> <p>3. Purchaser — Tide—A Ltaehment.</p> <p>The title of one who purchases of an attachment debtor property levied under it with intent to defeat such levy is void as to it. (p. 337).</p> <p>4. Purchase r — Lis p end ens.</p> <p>bis Pendens and pendents lite purchasers ref erred to. (pp. 336-327.</p>

Bill by C. M. Kester. and others, by W. G. Kester, their next friend, against J. I. Alexander and S. S. Faris. Decree for defendants, and plaintiffs appeal.

<p>Error to Circuit Court, Tucker County.</p> <p>C. D. Gillaspie was convicted of selling intoxicating liquors to a minor, and brings error.</p>

Bill by R. B. Wallace against John Lipps, O. P. Syden-stricker, and others. Plaintiff and Lipps and Syden-stricker having died,their administrators were substituted. Decree for complainant, and defendants appeal.

<p>■Application of Charles E. Hunter for a writ of mandamus, against the trustees of Berkeley Springs.</p>

Application by the board of education of Fairfax district and A. S. Hassinger and others for a writ of prohibition against John H. Holt, judge of the circuit court of Tucker County, and others.

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by Nancy Brown and William McGhee against L. A. Sampselle and others. Decree for defendants. Plaintiff McGhee appeals.</p>

Appeals from Circuit Court, Upshur County. Bills bj^ Merchant & Co. against Whitescarver & Brake and others, and by the Caldwell & Peterson Manufacturing Company against the same defendants. From the decrees rendered, the plaintiffs and others appeal.

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Action by M. M. McGrath, administrator of Mary Gardner, against John McDonald and others, heirs of decedent. From the decree, John McDonald appeals.</p>

<p>Jurisdiction — Laiv—Equity.</p> <p>Equity has no jurisdiction where there is full, complete, and adequate remedy by action at law. (p. 373.)</p>

<p>1. County — Criminal Claims — Actions.</p> <p>As a condition pi ecedent to the institution and maintenance of a suit against the county court for any demand for a speci- ’ fled sum of money, founded on contract, except an order on the county treasury, such demand must have been presented to the county court, and have been disallowed by it in whole or in part, unless the court refuses to act on such demand by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk, pursuant to section 40, chapter 39, of the Code, for presentation. (page 378.)</p> <p>2. JURISDICTION— Consent.</p> <p>Consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confers upon some other court, although the parties may by consent submit themselves to the jurisdiction of the court. In other words, consent can not confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person. (p. 379.)</p> <p>8. Courts — Jurisdiction. Limited — Record.</p> <p>In courts of limited and inferior jurisdiction, the record must show jurisdictional facts, (p. 379.)</p> <p>4. Judgment— Liability — Process.</p> <p>In order that a valid judgment may be rendered by a justice of the peace, the suit must be brought against a defendant upon whom is the liability, and service of process upon another and different party will not confer jurisdiction of the 1 subject-matter.' ( 379,)</p> <p>5. Judgment — Donation Void.</p> <p>The judgment of a court ordering or confirming a donation made out of the county treasury without lawful authority is void and will be prohibited, (in 388).</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Suit by Amos Steelsmith and another against the Fisher Oil Company for an injunction. Decree for defendant, and plaintiffs appeal.</p>

Appeal'from Circuit Court, Summers County. Actions by W. P. Cecil and others and J. R. Hall and others, respectively, against E. W. Clark and others, trustees of the Flat Top Coal-Land Association. Decree for plaintiffs, and defendants appeal.

<p>Application by the town of Davis against F. S. Filler and John Holt for a writ of prohibition.</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by Zanhizer Bros. & Sten against J. B. Hefner and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by Nelson M. Bennett against Franklin Perkins. Judgment for plaintiff, and defendant appeals.</p>

<p>Mandamus''ay. the State, on the relation of J. L. Stafford, against S. A. Hawk, warden of the penitentiary.</p>

Suit by the State against Henry C. King and others for the sale of hmd forfeited for nonpayment of taxes. From a decree allowing defendants to redeem the land, the State appeals.

<p>Conveyance — Fraud—Notice—Reference.</p> <p>The O. W. S. Co., a corporation, brought its suit to enforce its claim of six hundred and seventy-three dollars and fifty-nine cents ag'ainst its insolvent debtor, M., and to set aside a deed of trust on stock of merchandise made by M. to A., trustee, to indemnify M.’s indorser, B. An injunction was granted, and a receiver appointed. M. proposed tO‘ plaintiff that if it would dismiss its suit, and restore the property to his possession, and give him long time on the debt, he would furnish paper, with good indorsers, for amount of its claim. Accordingly the suit was dismissed, the receiver discharged, and possession of the property restored. When this was done, Al. sold the stock of goods to A. and B., in consideration of two thousand and seventy-two dollars, which was to be discharged by the payment of the three notes secured in the deed of trust, amounting to one thousand and four hundred dollars, and the amount of the O. W. S. Co. claim, represented by three notes, of two hundred and twenty-four dollars and fifty-three cents each, at one, two and three years, made by M., payable to the order of A. and !>., and indorsed by them, and which were delivered to the O. W. S. Co. for its debt. A few days thereafter W., L. & Co. brought their suit ag'ainst M., A., and B. to set aside said deed of trust and agreement of sale between M. and A. and B.; alleging that said sale and delivery of the three notes to the 0. W. S. Co. for its debt g-ave it an illegal preference, to the exclusion and prejudice of other creditors of Al. Held, that the O. W. S. Co., having no knowledge or notice of the sale from Al. to A. and B., the indorsers, at the time it received the notes, had the rig'ht to hold the indorsers, for the payment thereof in satisfaction of its debt, and the same was not an illegal preference in its favor, under section 2, chapter 74, Code. (p. 464).</p>

<p>Error to circuit Court, Raleigh County.</p> <p>Action by Elizabeth Kajr against the Glade Creek and Raleigh Railroad CompanjL Judgment ftir plaintiff, and defendant brings error.</p>

<p>1. Parties — Judgment IAen — Bill—Review. .</p> <p>Where a suit in equity is brought by a party to enforce Ms judgment lein against real estate which .his debtor holds jointly with another, and both of the owners of said real estate are made parties to the suit, and served with process, although no allegation is made or lien asserted against the party holding' said real estate jointly with such judgment debtor, and the cause being referred to a ■eommissionner to ascertain the liens existing against said real estate, and their priorities, who reports a judgment liexr existing- against the real estate belonging to said party who is not the, judgment debtor mentioned in the bill, it is error to decree a sale of the entire property, and such decree may be set aside by bill of review filed'in proper lime, (p.487).</p> <p>2. — Purchaser— Caveat JSmptor.</p> <p>Caveat emptor applies to a purchaser ata judicial sale. (p. 486).</p> <p>3. PURCHASER — Necessary Parties.</p> <p>A purchaser at a judicial sale is not protected by section 8 of chapter 132 of the Code, when (he record of the suit shows that necessary parties ini crested in the property sold, having- liens thereon, were not before the court when said sale was ordered and confirmed, (pp. 485-486).</p> <p>4. Decree — Sale.</p> <p>A decree rendered in the circumstances of this case is an entirety, and the entire decree and sale made thereunder will be set aside, (pp. 486-487).</p>

<p>1. Guardian— Ward — Beguiling Trust.</p> <p>To create a resulting- trust in favor of a ward in a tract of land purchased by his guardian, the trust funds must either have been iiaid at the time of, or entered into the consideration for the contract of purchase, thong-h afterwards paid. (p. 490).</p> <p>2. Purchase by Guardian— Wards — Funds.</p> <p>if a guardian pun-hanes a tract of Jand with her own money and on her own eiodit, and takes the deed in her'own name, the mere fact that, she satisfies the unpaid purchase money out of the guardianship funds, which afterwards come into her hands, cannot create a resulting trust in favor of her wards. A court of equity, in a proper case, may treat such funds so used, and to the extent thereof, as a charge against the land. (pp. 490-491).</p> <p>3. Guardian — Funds—Necessaries.</p> <p>A guardian, having no funds legally applicable thereto, who furnishes necessaries to his ward, has the same right to enforcement and reimbursement thereof as any other person furnishing such necessaries, (p. 494).</p> <p>4. Equity — Litigation Unjust.</p> <p>A court of equity will not countenance the unjust litigation of an unduiiful sou against his mother, although” she is his legal guardian, (p. 496). ■ '</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Sam. F Lilly was convicted of crime, and brings error.</p>

<p>1. APPEAR — Evidence—Review.</p> <p>Where a motion is made in the circuit court to set aside a verdict on the ground that the same is contrary to the evidence, and i,he court .fails to certify all the evidence offered, or all the facts proved, the conrt cannot review or reverse the judgment for that cause, (p. £02).</p> <p>2. Verdict — Motion—Judgment—Presumption.</p> <p>Where a circuit 'court, on motion, sc(k aside the verdict oE a jury as contrary to the law and the evidence, the presumption of law is in favor of the correctness of the judgment, and it is incumbent on the party assailing- the action of the court, on the ground, that it is contrary to the evidence to show (lie error by producing all of the evidence before the court, (p. 502).</p> <p>3. Evidence— Conflict — Judgment—Reversal.</p> <p>Though evidence bo conflicting, the court may set aside the verdict if against the weight of evidence, but such power should be exercised cautiously. When the court does so, its action is regarded with peculiar respect in an appellate court, , and will not be reversed unless plainly wrong, (p. 503).</p>

<p>1. Commissioner’s Report — Fuels— Fraud — Review.</p> <p>A .finding- of facts by a commissioner, confirmed by the circuit court, is viewed by this Court with peculiar respect, and such finding will not be disturbed unless plainly erroneous. (p. 507).</p> <p>2. Witness — Transaction with Deeedant.</p> <p>JSro party to any action, suit, or proceeding, nor any person interested in the event thereof, nor any jierson from, through, or under whom any such party or interested person derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or epmmun¡cation between such witness and a person at the time of such examination deceased, ag-ainst the administrator of such deceased person, unless such administrator be examined on his own behalf in regard to the same transaction or communication, (p. 507.)</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by C. N. Snodgrass against the South Penn Oil Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Action by J. W. Dunlevy ag-ainst the county court of Marshall County and S. R. Davis. Judgment for plaintiff, and defendants bring error.</p>

<p>1. JUDGMENT — Evidence—Estoppel.</p> <p>A judgment is conclusive by way of estoppel as to facts without the existence and proof or admisssion of which the judgment could not have been rendered, (p. 527).</p> <p>2. Questions — Assumed—Res Judicata.</p> <p>A proposition assumed or decided by the court to he true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as eiicelually passed upon and settled in that court as the very matter directly decided, (p. 526).</p> <p>3. Compensate) n— Verdiet — Judgment—Estoppel.</p> <p>The O. R. R. Co. instituted proceedings under section 14, chapter 52, Code, for condemnation of gravel, stone, etc., the properly of 15. Commissioners reported nine hundred and fifty dollars as just compensation, etc. Applicant paid same to the clerk of the court in vacation. I). excepted to the report on ground of inadequacy of compensation, and demanded a juryj which was impanneled, and rendered a verdict for two thousand, live hundred dollars. Judgment was rendered in favor of B. for “the sum of one thousand, five hundred and fifty dollars, being- the amount of two thousand, five hundred dollars aforesaid, less the nine hundred and fifty dollars heretofore paid into court by said railroad company,” etc., to which judgment the 0. It. It. Co. obtained a writ of error to the supreme court., and the judgment was affirmed. The clerk, withoút paying over the nine hundred and fifty dollars, died insolvent-. B. brought her action of assumpsit against the 0. E. R. Co. for the nine hundred and fifty dollars. Held, that B.’s judgment was res ad judicata as to the fact of the payment of the nine hundred and fifty dollars into court, and B. is estopped from prosecuting a claim for the same against the O. R. R. Co. (p. S2S).</p>

E. Schmertz and others against James Hammond and others. Decree for plaintiffs, and defendants, Samuel C. Koonce and others, appeal.

<p>1. Resulting Trust— Control— Purehctse.</p> <p>A resulting- trust, must, arise at the time oí the contract of purchase by virtue, oí the payment of the purchase money from the funds of the. cestui que trust, or securing the same at thar. time to he. thereafter paid, so as to make them a part of the contract oí purchass. (p. 552).</p> <p>2. Rxpkess Trust — Rquily—JEiiforcemcnt.</p> <p>An express trust will be enforced in equity where possession is held of, and valuable improvements are made on, the trust property b3r the cestui que trust, in pursuance of the contract of purchase (p. 552).</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Rill by Mox Rosenour against Henry Rosenour and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by Knotts & Garber against Matilda McGregor. Judgment for defendant, and plain tiffs brings error.</p>

<p>Appeal from Circuit Court, Marion Countv.</p> <p>Bill by Oliver N. Koen against Elijah Kerns and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Action by Thomas Lovings against the Norfolk & Western Railway Company. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Circuit Court, Roane County:</p> <p>Suit by John C. Cleavenger against the Franklin Fire Insurance Company of Wheeling, West Virginia. Decree for plaintiff, and defendant appeals.</p>

Suit by Howard L. Ammons and others against the-South Penn Oil Company and others. Decree for plaintiffs, and defendant oil company appeals.

<p>Appeal from Circuit Court, Ritchie County.</p> <p>Bill by M. L. Law, against Fred Rich and the Oriole Oil and Gas Company. Decree for defendants, and plaintiff appeals.</p>

<p>1. Appeal — Amount—Jurisdiction.</p> <p>In determining- the question of jurisdiction in an action for the recovery of money on contract, which comes to this Court on appeal to the circuit court, and writ of error, the amount claimed in the sximmons must determine the question of jurisdiction. (p. 640).</p> <p>2. Unliquidated Damages — Set-off.</p> <p>Unliquidated damagescannotbe the subjectof a set-off. (p.641).</p>

<p>-Appeal from Circuit Court, Kanawha County.</p> <p>Suit by Peter Silman against J. L. Stump and others. Judgment decrees for plaintiff, and defendant, Mattie A'. Savage, appeals.</p>

<p>Error to Circuit Court, Summers County.</p> <p>Action by D. C. Wood & Co. against the city of Hinton. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal — Error—Record—Affirmance.</p> <p>Where the record shows no .error affirmatively, the judgment will be affirmed. Graft v. Mann (W. Va.) 33 S. E. 260; Furbee v. Shay (W. Va.) 34 S. E. 746; . Griffith v. Con-others, 24 S. E. 569; (42 W.Va.59); Webb v. Bailey, 23 S. E.644, (41 W. Va. . 463). (p. 652).</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by J. F. Phillips and others against Thomas A. Deveny. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error to Circuit Court, Kanawha County. *</p> <p>Action by C. C. Lewis against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bill by Rose E. Miller against M. H. Morrison and others. From the decree, Rose E. Miller and certain of the •defendants appeal.</p>

Mandamus by the State, on the relation of M. F. Ma-theny, against the county court ot Wyoming County and another, to compel the building of a court house. Judgment awarding the writ, and defendants bring error.

<p>Appeal from Circuit Court, Putnam County.</p> <p>Suit by Phoebe Mynes against James M. Mynes and oth-ers. From the decree, Phoebe Mynes and Freda Mynes appeal.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Action by Mary D. Hale against James A. White, administrator, and others. Decree for plaintiff and defendants appeal.</p>

<p>Error to Circuit Court, Fay'ette County.</p> <p>Action by Lewis, Hubbard & Co. against W. H. Bragg. .Judgment for defendant, and'plaintiffs bring error.</p>

<p>1. Fraudulent conveyance — Evidence</p> <p>\Vhere a conveyance or deed of trust is given loy a debtoi-to one who is a near relative, and thereby the debtor largely disables himself from paying his debts, and such conveyance or deed of trust is attacked as fraudulent by creditors, the party claiming under it must fully and elearly establish a valuable consideration for it. (p. 711).</p> <p>2 Frauddbnt Intent — Evidence.</p> <p>Fraudulent intent in a conveyance may be shown by either direct or circumstantial evidence, and such circumstantial evidence, though only circumstantial, is sufficient if it lead a reasonable man to the conclusion that such fraudulent intent existed. Burt v. Timmons, (2 S E. 780,) 29 W. Va. 441. (p. 712).</p>

Action by the Glen Jean, Lower Loup and Deepwater ' Railroad Company against the Kanawha, Glen Jean and Eastern Railroad Company. From a judgment dismissing the action, plaintiff brings error.

<p>a. Special Judge— Oath.</p> <p>A special judge selected as required by law to try a felony case in a criminal court, in any case at tlie trial of which the judge of the court cannot properly preside, must, before proceeding- to exercise the authority or discharge the duties thereof, take the oath prescribed by section 5 of article IV of the Constitution, as well as that provided for in chapter 20 of the Acts of 1895. (p. 727).</p> <p>2. Evidence — Dying Declarations — Homicide.</p> <p>Dying declarations, being a substitute for sworn testimony, must be such narrative statements as would be admissible had the dying- person been sworn as a witness. If they relate to facts to which the ueclarant could have tnus testifies., they'- are admissible. Mere declarations of opinion, which would not be received if the declarant were a witness, are inadmissible.</p> <p>Quaere: As to whether counsel for the prisoner in a murder case can agree with the x>rosecuting- attorney upon a member of the bar as special judge, under chapter 20 of the Acts of 1893, to try, hear and determine such case (pp. 731-732).</p>

<p>Appeal from Circuit Court, Harrison Countv.</p> <p>Action by the Clarksburg- Electric Light Company against the city of Clarksburg and others. Decree for defendants and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Bill by Andrew Herold and others against Amos Barlow and others. Decree for plaintiffs, and defendant, Amos Barlow, appeals.</p>

<p>1. TRIAD — Instructions—Facts Stated.</p> <p>When the court instructs the jury that if they believe, from ■ the evidence, certain hypothetical facts mentioned in the instruction, they must find for the party plaintiff or defendant, as the case may be, but omits from such statement of facts a material fact, which being- believed from the evidence, would require a different verdict, such instruction is erroneous, and, if excepted to, and not cured, is ground for reversal, (p. 768).</p> <p>2. INSTRUCTION Erroneous — Presumption Prejudicial.</p> <p>An erroneous instruction on a material point is presumed to be to the prejudice of the party appealing- ag-ainst whom it is given, and will 'cause reversal, unless it clearly appears, from the record that it was harmless, (p. 771).</p> <p>3. Inconsistent Instructions — Ahí Cured, by Good 0<-e</p> <p>Instructions must not be inconsistent with each other. A bad instruction is not cured by a good one, though they be given on the motion of adverse litigants, (p. 772).</p> <p>4. Slander— Utterance Privileged — Burden.</p> <p>The question as to whether the occasion on which the words were uttered in an action for slander was one of absolute or qualified privilege, is one for ihe co ut, ri absolute, the defendant is entitled to judgment; if, however, the privilege was only qualified, the onus lies on the plaintiff of proving actual malice, (p. 772).</p> <p>5. Qualified Privilege— Communication — Interest.</p> <p>A qualified privilege extends to all communications made-bona fide upon any subject-matter in which the party communicating- has an interest, or in reference to which he has. a duty to a person having- corresponding- interest or duty;, and the privilege embraces cases where the duty is not a., legal one, but where it is of a moral or social character of imperfect obligation, (p.772).</p> <p>G. Defamation— Parties Interested.</p> <p>In such a case the defendant may, under the g-eneral issue,, show that the alleged defamation consisted in a communication made by or to persons interested in the subject-matter of the communications, although they affect the character or credit of the plaintiff, (p.772).</p>

<p>1. Service of Summons — Person—Officer.</p> <p>Any credible person may serve a summons or other process, or legal notice, and make verified return of such service, though there has not been any prior return of not executed by an authorized officer, (pp. 774-775).</p> <p>2. Evidence — Demurrer—Burden of Proof.</p> <p>Either party in an action at law may, of right, demur to the evidence of his adversary, when that adversary carries the burden of proof, unless the case be clearly against the de-murrant, or the court entertains a reasonable doubt as to what facts should be fairly inferred from the evidence, (p 766.)</p> <p>3. Demurrer to Evidence — Joinder—Objection.</p> <p>One who objects to being compelled to join in a demurrer to evidence must make Ms objection thereto in the circuit court, and cannot make it for the first time in the supreme court, (p. 778-779).</p>

<p>1. Justice Summons — District—Jurisdiction.</p> <p>A justice cannot issue a summons to a defendant to appear before him at a place, named, without his own district, (p. 784).</p> <p>2. JudgMent Void.</p> <p>A judgment "by default rendered by such justice upon such summons is void. (p. 784).</p> <p>■3. Peooess — Service—Return—Presumption.</p> <p>Where the return of service of process by an officer is not dated, the presumption is that the service was made within the time prescribed by law. (p. 781).</p>

<p>1. Bill — Demurrer—Rule to Answer.</p> <p>When a demurrer to an original or amended bill is overruled, the defendant is entitled to a rule to answer the bill, 'which need not be served. (p. 7S6).</p> <p>2. Bill — Demurrer—Day to Answer.</p> <p>Where a demurrer to a bill in equity is overruled, and no dajr is given the defendant in which to answer, the court cannot properly order a reference of the cause to a commissioner to ascertain the amount of the plaintiff’s demand, where the object of the bill to subject land to sale is to ascertain the liens thereon and their priorities, (p. 787).</p>

<p>Error to Circuit Court, Braxton County.</p> <p>T. M. Mitchell was convicted of polluting a water course, and brings error.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by Leland R. White and others against William M. Straus and others. Decree for plaintiffs, and defendant, Straus, appeals.</p>

<p>1. Married Woman — Separate Estate — Charge Thereon.</p> <p>A purchase money note, specifying- therein the property on which it is a lien, signed and acknowledged by a married woman, and duly recorded, is not evidence sufficient of a general charge against her separate estate, under section l:«, chapter 109, Acts 1891 (Code, chapter 66). (pp. 802-803).</p>

<p>1. Contingent Estates — Parties.</p> <p>Section 20, chapter 71, Code, relating- to the sale of contingent estates, in requiring all persons then living- and contin- ■ gently interested to lie made defendants, includes only nonascertainable or not in being, (p, 80S).</p> <p>2. Decebe — Remote Interests — Parties.</p> <p>A decree rendered for the sale of real estate subject, to contingencies is binding on all those who are remotely interested, and whose identity is legally nonascertainable, when their possible contingent interests are represented by proper parties to the suit, holding similar estates, prior in right. (p. 808).</p> <p>3. Equitable Doctrine— Parties.</p> <p>The equitable doctrine of representation by persons similar and prior in estate, for the purposes of convenience and justice, applies, of necessity, in all cases where possible heirs or devisees contingently interested are physically or legally not in being, or nonascertainable. (p. 807).</p>

<p>1. Appeal — Feom Justice — Appellee.</p> <p>Where a party appeals to the circuit court from a judgment rendered against him by a justice, he cannot, on his own motion, have his appeal dismissed, and the judgment of. the justice affirmed, over the objection of the appellee, (p. 811).</p>

<p>1. Judgment Ins's — Equitabte Interest</p> <p>B. sold a tract of land to V. for five hundred and fifty dollars, of which V. paid two hundred and fifty dollars, and went into possession of the land, occupying- it with his family. Y. paid no more on the land, and left his .family to maintain themselves, hut returning- home and remaining- at his pleasure. B., claiming- that V. had relinquished his purchase, sold the land to I., the wife of V., for three hundred and six dollars, she paying in cash seventy dollars from her own means, and giving-her notes for the residue of the purchase money. D., having- a judgment against V., rendered on a .debt existing at the time V. paid the two-hundred and fifty dollars on the land, filed his bill to enforce his judgment against V.’s equitable interest in the land. Held, that such interest was liable to the judgment, (pp. 813-814).</p> <p>2. LieN — Priority—Subrogation.</p> <p>I., having- purchased the land in good faith, without knowledge of D.’s debt against V., and having.paid the seventy dollars from her own means, is entitled to be substituted to the rights of B. as vendor to that amount prior to the claim of V. (p. 814).</p> <p>3. Lien — Unpaid Purchase Money.</p> <p>The balance of the purchase money unpaid and due to B, from I. is the first lien on the said land. (p. 816).</p>

<p>1. Bill — Allegations—Evidence—Decree.</p> <p>Every fact necessary to make out the ease must be certainly and positively alleged, for the court pronounces its decree, as based upon the allegations as well as the evidence, (p. 820).</p> <p>2. Note — Judgment—¿•'■ubrogation— Contribution.</p> <p>B. brought her action against C., the principal, and C., IT.,, and M., as sureties, on a note. M. denied making the note.. Case tried by jury; H. taking an active part, consulting and as witness in behalf of plaintiff, seeking to hold M. liable on the note. Verdict and judgment for M. against B. for costs, while plaintiff recovered against the other defendants. H. paid the judgment of plaintiff in full, and sued M. for contribution as co-surety. Held, that, H.’s right being- only by subrog-ation to the rig-hts of B., M. was not liable for contribution, not having been liable to B. on the note. (p. 821).</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by Rhul, Koblegard & Co. against E. J. Berry and others. Decree 'for plaintiffs, and defendant, Berry, appeals.</p>

<p>Appeal from Circuit Court, Wirt County.</p> <p>Bill by W. R. McIntosh against the Augusta Oil Company and others. Decree for plaintiff, and the oil company appeals.</p>

<p>1. Administratoe — Claim Barred — Renewal.</p> <p>An administrator- cannot, by the acknowledgment in pleading of a debt against his decedent which is barred by the statute of limitations, or in any other way, remove the bar of that statute, (p. 842).</p> <p>2. Acknowledgment in Writing — Renewal.</p> <p>An acknowledgment in writing, to operate as a new prom-, isc to remove the bar of the statute of limitations, must be ,v a clear and definite acknowledgment of a precise sum, plainly importing a willingness and liability to pay, not in any wise conditional, nor by way of compromise or attempt at settlement. (p. 843).</p> <p>3. Creditor’s Suit — Set-Off—Plea—Limitation.</p> <p>In a suit by a creditor against an expired corporation, where the corporation in its answer pleads a set-off ag’ainst the plaintiff’s demand, the plaintiff may file á plea of the statute of limitations before the commissioner, or in any other manner make that defense before the commissioner taking a.n account in the case. (p. 843).</p> <p>4. Account — Acknowledgment—Limitation.</p> <p>A stated account, not sig’ned by the party, will not operate as an acknowledgment, to take fi demand out of the statute of limitations, (p. 844).</p> <p>5. Book Entries — No Acknowledgment.</p> <p>Mere entries by a party in his own book of accounts will not operate as an acknowledgment, to take a demand out of the statute of limitations, (p. 845).</p> <p>6. Expired Corporation — Equity.</p> <p>There can be no suit ag’ainst an expired domestic corporation, except one in equity, as provided in sections 57, 59, chap- . ter 53, Code, to wind up its affairs for the benefit of creditors and stockholders, (p. 846).</p> <p>7 Expired Corporation — Attachment.</p> <p>There can be no attachment for debt against an expired domestic corporation, (p. 846).</p> <p>8. Equity Suits — Corporation — Creditors.</p> <p>In a suit in equity under section 59, chapter 53, Code 1891, by a creditor to assert a debt against an expired domestic corporation, and wind up its affairs, and administer its property for the benefit of creditors, • the stockholders are necessary parties; and when a debt is decreed ag’ainst the corporation, and its property subjected thereto, the decree muss both ascertain the debts ag-ainst the corporation, and declare the shares or interests of the stockholders in the corporation, and in the surplus proceeds of the property decreed to sale. (p. 846).</p>