Volume 48 — West Virginia Reports

<p>Error to Circuit Court, Ohio County.</p> <p>Action by William H. Chapman against the J. W. Beltz & Sons Company. Judgment for plaintiff, and defendant brings error.</p>

Appeal 'from Circuit Court, Harrison County. Bill by Luther H. Bond and Margaret J. Bond, bis wife, against C. H. Davis and others. Decree for plaintiffs, and defendant Davis appeals.

Appeals from Circuit Court, McDowell County. Bills by E. W. Clark and others against D. G-. Sayers and others, and by Henderson M. Bell and others against D. G. Sayers and others. Decrees for defendants, and plaintiffs appeal.

<p>Appeal from Circuit Court, Jackson County.</p> <p>Bill by William Weekly against Jemima Alice Hardesty and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by William Huff against Chesapeake & Ohio Bailway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Bill by J. B. Smith and others against David M. Smith and others. Decree for plaintiff. Defendant William Smith appeals.</p>

<p>1. Deed — Delivery Of.</p> <p>To constitute a delivery of a deed, the grantor must by act or word, or both, part with all right of possession and dominion over the instrument with the intent that it shall take effect as his deed. (p. 58).</p> <p>2. Act oe Word — 'Necessary to Delivery</p> <p>Where a deed was executed and acknowledged ready for delivery, but was not delivered by anything then said or dohe, was laid away in decedent’s chest, among his private papers, although the grantees In said deed may have carried the keys and had access to said chest, some act or word indicating the grantor’s intention to deliver said deed to them was necessary to constitute a delivery of the same, and make it effectual as a conveyance of the property therein described to the grantees, (p. 60).</p>

<p>1. INJUNCTION — Disolution—Decree.</p> <p>While there is an injunction against a sale under a deed.of trust, if it is found that the debt due is less than the amount called for in such deed, there should not he an absolute dissolution of the injunction, hut a decree should he entered fixing the amount due, and in the discretion of the court, either dissolving the injunction as to tnat amount and dismissing the bill, or the court should retain the cause and enter a decree of sale under its supervision, (p. 63).</p> <p>2. Trust Deed — Place of Sale.</p> <p>Where a deed of trust fixes a place for sale, it must he made by the trustee at that place, (p. 64).</p>

<p>Tax Sale — Purchaser—Title—Rights of Grantee.</p> <p>Where the State has become the purchaser of lands delinquent for the nonpayment of taxes due thereon, by virtue of section 3, article XIII, of the Constitution, the forfeited title, m so far as vested in the State, becomes vested in any person (other than the person, his heirs or devisees, for whose default the land was returned delinquent) having title or claim to such land derived mediately or immediately from or under a grant from the State, and who, or those under whom he claims, have paid the State taxes charged or chargeable thereon for five successive years; and a suit cannot be maintained in the name of the State to sell such land for the benefit of the school fund. (p. 67;.</p>

<p>1. Carrier's Liability — Assault—protection.</p> <p>A railroad company is liable to a passenger on one of its trains for a willful assault and battery committed on sucb passenger by tbe conductor in charge of sucb train. Such an assault is a breach of the duty of protection which such company owes to its passengers, (p. 70).</p> <p>2. Verdict — Witness—Greáibility.</p> <p>The verdict of a jury, depending on the weight of oral testimony and the credibility of witnesses, will not be disturbed, unless for some reason there has been a plain miscarriage of justice, (p. 71).</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by James Connolly and others against Andrew Bruner. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Action by George W. Roberts against Burns Bros, and others. Judgment for plaintiff, and defendants Burns Bros, appeal.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Action by the Farmers’ Bank of Fairmont against John E. Gould and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by Charles A. Bulkley against M. J. and J. L. Sims. Judgment for defendants, and plaintiff brings error.</p>

<p>Error to Circuit Court, Lewis County.</p> <p>Action by John P. Bodkin against George J. Arnold. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Indictment — Joinder of Offenses.</p> <p>An indictment may allege both burglary and larceny in the same count, and may join two counts, — one for “breaking and entering,” and another for “entering without breaking.” (p. 117).</p> <p>2. Tbiaí — Evidence—Motion to Exclude.</p> <p>In the trial of an indictment, when the prosecuting attorney has introduced all his evidence and rests the State’s case, on a motion by the defendant to exclude the evidence from the jury, as not being sufficient to sustain the indictment against him, if it clearly appear that the evidence is so insufficient, such motion should be sustained, (p. 120).</p>

<p>1. Unlawful Detainer — Summons—Description.</p> <p>C. B. brought his action of unlawful entry and detainer before a justice against S., in which the summons to defendant was “to answer the complaint of C. B. in a civil action for the recovery of possesson of lot No. 37,” etc., and after the description of the premises in question, “being the same lot upon which said S. resides, and unlawfully withholds the possession from the ’plaintiff.” Held sufficient, under section 212, chapter 50, Code, (p. 124). . ' '</p> <p>2. Equitable Claim — Remedy—Equity.</p> <p>In an action of unlawful entry and detainer before a justice, if the defendant holds possession alone upon a purely equitable claim, having no writing or colorable title, and relies only upon such equitable claim, the title to real property is not thereby ' brought in question between the parties, as contemplated in ■clause 11, section 50, chapter 50, Code, and defendant’s remedy, if any, is in a court of equity, (p. 125).</p>

<p>Conteaot — Specific Performance.</p> <p>An aged person, living alone in apparent destitution, without known friends or relatives, enters into a verbal contract with a husband and wife, whom she claims as kindred, to maintain, care for, support, clothe, and bury her, for her property, consisting of a small amount of personalty, and several pieces of real estate of inconsiderable value; and in pursuance ,of such contract they move into and take charge of her and her property, and in all respects possible fully carry out and comply with their contract; but before the contemplated deed can be executed for sucb property, in consummation of such contract, she meets with an accident, which results in her death. At the instance of such husband and wife, a court of equity will specifically enforce such contract against persons asserting themselves to be heirs of the deceased by reason of remote relationship.</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Jake Hill was convicted of breaking into a railroad car, and brings error.</p>

<p>Application of M. B. Coger for a writ of prohibition against Delilah Coger and others.</p>

<p>1. Statute of Limitations — Second Suit.</p> <p>A suit begun by the issuance oí a summons, and dismissed at rules for the mere failure of the plaintiff to file his declaration, will not save a second suit for the sam'e cause of action, brought within one year after such dismissal, from the statute of limitations. (p. 142).</p> <p>2. Commencement of Suit — Limitation.</p> <p>A suit begins with the issue of the summons to answer the declaration or bill, and therefore the statute of limitations ceases to run at the date of the issue of the summons, (p. 143).</p>

<p>1. Action — Debt or Assumpsit — Pleading.</p> <p>In an action of debt or assumpsit upon a promissory note or bond it is indispensable to aver nonpayment, and that to every party connected with the note entitled to receive payment, whether payee, assignee, decedent,, or representative, or survivors of deceaents, and each one of parties jointly entitled to receive payment, (pp. 146, 147).</p> <p>2. Deceabation — Negotiable Note — Averment.</p> <p>In a declaration upon a non-negotiable note, an averment that a person “indorsed” it, instead of the word “assigned” it, is • equivalent to the word “assigned” on demurrer. (p.‘. 147).</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Bill by E. Boyd Faulkner and another against James E. Thomas and others. Judgment for defendants, and plaintiffs appeal..</p>

<p>Resident’s Removal — Intent—Attachment.</p> <p>If a resident of this State, with fixed, set intention to remove to another State, and there reside, inpursuance of such intention goes out of this State, he is, within the meaning of the attachment law, a non-resident of this State directly he begins the removal of his person from the place of his residence, even before he gets outside the state, and, to constitute him a non-resident, he need not acquire either a domicile or residence in another state, (p. 155).</p> <p>2. Non-Resident — Exemption Laws.</p> <p>Non-residence, within the meaning of the law exempting personal property to the value of two hundred dollars from legal process, has the same meaning as non-residence under the attachment law. (p. 156).</p> <p>3., Justice’s Bond — Sureties—Liability.</p> <p>A justice of the peace and the sureties in his bond are liable under it for double the value of exempt property sold by a special constable under legal process issued by such justice, (p. 161).</p> <p>4. Who Mat Claim Exemption — When.</p> <p>A husband or parent entitled to claim the exemption of personal property to the value of two hundred dollars as exempt from legal process may claim such exemption at any time before the sale of the property under such process begins, if then a resident of this State; and, though he was not such resident at the date of the levy under such process, yet if he is bona fide such resident before the sale begins, or bona fide resumes residence in this State, which had once existed, but was lost at the date of such levy'he may claim such exemption, (p. 162).</p> <p>6. Declaration — Damages—Exemption Property.</p> <p>In a declaration for damages for the sale of property under attachment exempt by law (chapter 41, section 23, Code), it is not necessary to aver that the attachment was not upon the ground of non-residence (p. 163).</p>

<p>1. Building Association — Premium.</p> <p>While a building association may fix a minimum premium payable in advance or in periodical installments, such premium must be a lump sum, certain and definite, and not a percentage payable indefinitely at fixed periods, (p. 166).</p> <p>2. Percentage — Premium—Usury.</p> <p>A percentage payable indefinitely at fixed preiods is interest, and although it be called “premium,” and is in addition to the legal rate of interest already charged, it is usurious, and should be expunged from the account, (pp. 167, 168).</p>

<p>1. Cancellation of Deed — Gloucl on Title.</p> <p>The supreme court of appeals having determined that a certain strip of land adjacent to a property owners lot, was part of a public highway, and subject to the public easement therein, and directed a mandatory injunction to place the public in possession of such easement to be awardéd by the circuit court, and such court refusing to award the same, and such property owner, in total disregard and in contempt of such adjudication, proceeding to purchase other pretended titles to such strip of land, for the purpose of beclouding the public easement therein and further litigating the same, a court of equity will cancel such deeds in so tar as they operate as a cloud upon the public easement and will perpetually enjoin the further litigation of the public’s right, as an effort to maintain and continue in force a public nuisance in derogation of the sovereignty of the people of the state, (pp. 175, 176).</p> <p>2. Public Easement — Dedication—Acceptance.</p> <p>"When a public easement has once been lawfully established over land for a public highway, either by dedication to the use of the general public by individuals, and acceptance by the proper authorities, or by the exercise of the right of eminent domain, such easement is good against any and all titles, (p. 175). .</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by Henry S. Wilson against George W. Braden and John Deem. Judgment for defendants, and plaintiff brings error.</p>

Suit by James M. Baer and others, by their next friend, against Hannibal Forbes, and others. Decree for defendants, and plaintiffs appeal.

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by Hannah J. Rutter and others against Lucinda J. Anderson and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Petition — Appearance dy Demurrer — Waiver.</p> <p>Where a party files his petition, in the nature of an original bill in a chancery suit, praying to he made a party plaintiff, and that the defendants to the suit, being named in the petition, be made defendants thereto, and such defendants appear to said petition and demur, and demurrer is overruled, and on the record waive their right to answer or further plead thereto, it is not error to proceed upon said petition in the cause without process issued thereon; the waiver of right to answer or further plead being, in effect, a waiver of process, (p. 225).</p> <p>2. Bona Fide Purchaser for Value — Protected.</p> <p>Under chapter 74, Code, a dona flete purchaser for valuable consideration, who had no notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor, is protected, (p. 231).</p> <p>3. Trust Deed — Power of Court to Change.</p> <p>E. V. R., a married woman living with her husband, purchased and had conveyed to her a house and lot. She borrowed from a building and loan association five hundred dollars, which she used principally m paying for and improving the property, and, together with her husband, executed a deed of trust on the property to secure the "loan, which was evidenced by bond, and payable in monthly installments. Shortly afterwards judgment creditors of the husband, of whose claims the said loan association had no notice at the time of the loan, instituted a suit to set aside uhe conveyance to E. V. R., as being in fraud of their rights, and succeeded in setting it aside as to their judgments. Held, the deed of trust was the prior lien, and, the court having no power to change the terms and conditions of the trust as. to the maturity of the loan secured, it could only ■ decree the sale of the property, subject to the trust debt to satisfy said judgments, (p. 231).</p>

<p>1. Appeal — New Trial, ~ñhen.</p> <p>Where a motion for a new trial is on the ground that the ver- . diet was contrary to the evidence, and the motion is denied; the opinion of the trial court is, on such point, entitled to great respect in the appellate court, which will grant such new trial only in case there has been a plain deviation from right and justice, (p. 238).</p> <p>2. Mistake oe Judgement — Capacity of Counsel.</p> <p>Mistake of judgment, or want of attention or capacity of counsel, afforu no just or proper grounds for granting a motion to 1 re-open a case. (pp. 239, 240).</p> <p>3. Judgment — Relates to First Day of Term.</p> <p>A judgment in any case, fully matured, so that it could he tried on the first day of the term, if it had been set for that day, relates to the first day of the term, and this rule applies to a judgment on attachment, (p. 241).</p> <p>4. Attachment Lien — Priority Preserved.</p> <p>On the rendition of judgment on an attachment the lien of the attachment is. merged in the judgment, and the priority of the lien thereby preserved, (p. 250).</p> <p>5. Attachment — Petition—Interest in Controversy.</p> <p>Before a third party claiming an interest in attached property can De permitted to file his petition under section 23, chapter 106, Code, and defend the attachment on its merits, he must show by his petition that he has an interest in the controversy, (p. 250).</p>

<p>1. Owner — Assessment—Tax Salet — Title.</p> <p>Where land is assessed with taxes in the name of a former owner, though after a conveyance to another recorded prior to the beginning of the assessment year, and the land is not assessed in the name of such second owner, a sale and deed for nonpayment of such taxes will pass to the purchaser the title of such second owner, (pp. 252, 253).</p> <p>2. Delinquent Lands — Tax List — Affidavit.</p> <p>An omission from an affidavit to a list of sales of delinquent lands of the words, “as well as a list of all the real estate redeemed, and the names of the persons who redeemed the same,” will not vitiate a sale for taxes after deed made. (p. 253).</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Bill by Ada Diehl and Larry I. McLain against W. J. Cotts and others. Decree for complainants, and defendants appeal.</p>

<p>1. Intoxicating Liquors — Wholesaler’s Liability.</p> <p>One licensed as a wholesale liquor dealer in one county is not liable to prosecution under section 1, chapter 32, Code 1891, • prohibiting any person without license from soliciting or receiving orders for liquor, for merely mailing circulars soliciting such orders, addressed to persons in another county. (p. 260).</p> <p>2. Soliciting Orders for Liquors.</p> <p>The said provision of the Code applies to one merely soliciting orders for liquor, though no such order be given, (p. 261).</p>

<p>1. Attorneys — Action for Services — Declaration.</p> <p>Where a law firm has been employed as general counsel for a corporation, and served it in that capacity, and brings an action of assumpsit, the declaration containing the common counts, and also the following averment: “And also in the further sum of two thousand five hundred dollars for legal work and services done and rendered to said defendant during the years of 1895, 1896, and 1897 by said plaintiffs;” and said plaintiffs also file with their declaration a bill of particulars, charging the defendant with legal services as general counsel from July 7, 1895, to March 7, 1897, at one thousand five hundred dollars per year, two thousand five hundred dollars — under this state of pleading the plaintiffs can recover what they can show their services were reasonably worth, notwithstanding one of said law firm was a director of said corporation at the time the service was rendered, (p. 264).</p> <p>2. Contract — Compensation—Bow Recovered,.</p> <p>In the absence of an express contract, such attorneys were entitled to recover reasonable compensation as general counsel during the period mentioned in said bill of particulars, without itemizing the services rendered at different times, (p. 265).</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by J. D. Holmes against A. J. Yoke and M. C. Hagans. Prom a judgment dismissing an appeal from a justice, defendants bring error.</p>

<p>Justices’ Fees — Felony Oases — Payment.</p> <p>Under section 20, chapter 137, Code, justices’ fees in felony-cases must be audited and paid by the county court or tribunal in lieu thereof, as other claims against the county, (p. 270).</p>

Bill by C. B. Clark and others against J. B. Bryan and others. From an order awarding an injunction appointing a receiver, defendants appeal.

<p>1. Purchaser — Equitable Right — Judgment Lien.</p> <p>A purchaser of land by parol contract which has been so far executed as to vest in him the right to compel his vendor to execute the parol contract in a court of equity has an equitable right in said land so purchased, which a court of equity will fully protect against the lien of a subsequent judgment creditor of his vendor, (p. 273).</p> <p>2. Conveyance — Fraudulent Presumption.</p> <p>The fact that a party conveys his property to a son or brother is not per se a badge of fraud, but, when such conveyance is assaulted as fraudulent, such relationship, connected with other circumstances, may strengthen the presumption of fraud. (P.-274).</p>

<p>CoNxempt — Punishable, When.</p> <p>The presentation of a respectful, but illegal, petition to a circuit court in a respectful manner by an attorney at law, though improper, does not amount to a punishable contempt. State v. Hansford, 28 S. E. 791, (43 W. Va. 773). (p. 275).</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by Abraham McConnell and another against George W. Rowland and others. Decree for defendants, and plaintiffs appeal.</p>

Application of Charles M. Iiebb for a writ of mandamus against the county court of Tucker County and William M. Cayton. From an order granted therein, Cayton brings error.

<p>1. Specific Performance — When Enforced.</p> <p>To enable a court to enforce a specific contract for the sale or real estate the contract must be established by competent proof to be clear, definite, and unequivocal in all its terms. And the contract proved must be that charged in the bill. (p. 286).</p> <p>2. COMMISSIONER’S Finding — On Facts — Force of.</p> <p>-Where questions purely of fact are referred to a commissioner to be reported upon, the findings of the commissioner, while not as conclusive as the verdict of a jury, will be given great weight, and snould be sustained, unless it plainly appears that they are not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, where the findings of the commissioner have been approved and sustained by the decree of the inferior court, (p. 288).</p>

<p>Error to Circuit Court, Clay County.</p> <p>Action by the Mercantile Bank of Memphis against J. M. Boggs. Judgment for plaintiff, and defendant brings error.</p>

<p>Contracts — Parol Evidence■ — Ambiguity—Reformation.</p> <p>If a written contract is ambiguous on its face, limited oral evidence may be admitted, either at law or in equity, to explain its meaning (that is, evidence to show the situation of the contracting parties, the circumstances surrounding them, and their acts afterwards in executing the contract, in order to reflect their intention in making the contract), but not evidence of their interlocutions, declarations, or conversations before or at the time of the consummation of the contract. If the contract is not ■ ambiguous on its face, it must speak for itself, and no oral evidence can be admitted, either at law or in equity, to contradict, alter, or explan it. But a court of equity may, for a mistake mutual to both parties, reform the contract in a suit brought expressly to correct such mistake, and then oral evidence of any kind is admitted to establish the mistake; but this cannot be done in a court of'law, which must take the contract as written, (pp. 296, 297).</p>

<p>Appeal from Circuit Court, Taylor County.</p> <p>Action by George P. Powell, committee of William P. Kem-ble, against J. H. Smallwood. Prom a judgment dismissing plaintiffs bill, be appeals.</p>

<p>Pension Monet — Exempted, When.</p> <p>Section 4747, Rev. St. U. S., protects pension money only as it is due or to become due, and while in transit to the pensioner, and does not exempt money or property in the hands of the pensioner, although the proceeds of a pension, (p. 306).</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Bill by the State against'Paul O. Eeymann and others. Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Bill by the Standard Mercantile Company against D. P. Ellis and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by B. W. Lawson against B. E. and P. G. Zinn. Judgment for plaintiff against defendant P. G. Zinn, and he brings error.</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Suit by E. S. Boggess against B. J. Scott and A. T. Pratt. Judgment for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Braxton County.</p> <p>John Dickey was convicted of manslaughter, and he brings error.</p>

<p>Error to Circuit Court, Hardy County.</p> <p>Lemuel Kohne was convicted of murder in the first degree, and brings error.</p>

<p>1. Feksonal Judgment — Limitation.</p> <p>A personal judgment upon any cause of action merges and ends that cause of action, and thereafter the statute of limitations runs against the judgment, (p. 340).</p> <p>2. Action — Absence S'rom State Deducted.</p> <p>If a defendant, once a resident of the state, departs and resides out of it before a personal judgment against him, the time of his residence abroad will not excuse the judgment from the statute of limitations, though he was a resident when the cause of action on which the judgment rests arose or accrued, (p. 340).</p> <p>3. Action — Residence Abroad Does Not Defeat.</p> <p>If before both the birth of the cause of action and the accrual of the right of action a resident of the state removes out of it, his departure and residence abroad will not save the action from the statute of limitations, (p. 341).</p> <p>4. Absence Abboad Excuses — Limitations.</p> <p>Departure from and residence oui of the state after the accrual of the right of action are, of their own force, an obstruction to the prosecution of such right of action, excusing from the statute of limitations, (p. 342).</p>

<p>Vendor's Lien — Enforcement—Laches.</p> <p>S. became tbe owner of certain notes by assignment, wbicb were purcbase-money notes secured by reservation of the vendor’s lien on a tract of land, and employed B. to enforce the lien and collect the same. On the 1st of May, 1874, a decree was obtained directing a sale of said land, which was executed on the 10th of June, 1878, confirmed without exception in April, 1879, and a ueed directed to be made lo D., the purchaser. B. was appointed special commissioner to execute the decree and deed, and made the sale without executing the bond required by the statute and by the decree. No legal proceedings were instituted by S. to collect saia purchase money from B., who had faileu to pay over che same, until April, 1898, long after 0. hau conveyed said lana to innocent purchasers; when a suit in equity was brought by the administrator of S. against the estate of B. and against D., to recover said purchase money from the estate of B., or subject said land to resale under said vendor’s lien. Self! that, by reason of the plaintiff’s laches, he is entitled to recover in neither aspect, (p. 347).</p>

Bill by the South Penn Oil Company and others against Mary A. Edgell and others. From a judgment refusing to dissolve an injunction, defendants appeal.

<p>Appeal from Circuit Court, Braxton. County.</p> <p>Suit by B. P. Hall, administrator, against George T. Hyer and others. Decree for plaintiff. Defendants Hyer appeal.</p>

<p>1. Supeeme Couet — Jurisdiction—Mandamus.</p> <p>The supreme court of appeals has jurisdiction of a writ of error to a judgment of a circuit court, disbarring an attorney for acts done in court as attorney, as for a contempt, (p. 361).</p> <p>2. Mandamus — Circuit Court.</p> <p>Does mandamus lie from this Court in such case co the circuit to restore a disbarred attorney? (p. 362).</p> <p>3. Rule — Disbarment—Attorney—Answer.</p> <p>Vvhere a rule to disbar an attorney summons him m answer charges contained in an affidavit of an informant filed in the case, it is sufficient, as the affidavit thus becomes part of the rule. Op. 363).</p> <p>4. Attoeney — Disbarment■—Evidence.</p> <p>To disbar an attorney, the evidence of the charges against him must be full, preponderating, and clear, (p. 364).</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Bill by Justus Eakin and others against Isaac N. Hawkins and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. Sale op Land — Mutual Mistalce — Rescission.</p> <p>Because of mutual mistake or misunderstanding as to the boundaries and location of a tract of land included in a sale, the vendee may have the sale rescinded, but cannot compel a reduction of the purchase money; for the vendor is entitled to have the land back, or have the purchase money paid in full, (p. 376).</p> <p>2. Vendor — Rescinding Bale- — Consideration.</p> <p>If the vendor does not want the sale rescinded, he may elect to receive a reduced consideration, but he cannot be compelled to do so. (p. 376). . '</p> <p>3. Vendor’s Misrepresentation — Abatement—Extent of.</p> <p>Where the vendor has been guilty of fraud or misrepresentation, he may be compelled to abate the consideration, to the extent of such fraud or misrepresentation, (p. 377).</p>

<p>l. Specific Performance — Contract.</p> <p>In a suit to enforce the terms of a written agreement, if the intention of the parties is plainly expressed and the contract is free from ambiguity, the same will be enforced, without resorting to parol proof of the surrounding'circumstances. (p._380).</p> <p>2. Decree — Dissatisfaction—Ambiguity.</p> <p>Where a decree has been rendered in the circuit court for a certain sum, and the plaintiff, not satisfied therewith, obtains an appeal to this Court, where the decree is affirmed,-and four parties interested therein employ an additional attorney to obtain a rehearing of said cause, and, in the event the same is reversed, and further prosecuted, agree to pay him one thousand dollars certain, and a contingent fee of five per cent, on the net recovery in excess of the decree rendered in the circuit court, said fees to he paid pro rata hy said four parties, said contract is unambiguous, needs no construction, and is enforceable against each of said four parties, (p. 381).</p>

<p>Fraudulent Misrepresentation' — Right of Action.</p> <p>A statement or promise, to be actionable on the grounds of fraudulent misrepresentation, must be of a fact alleged to exist in the present or past, contrary to the truth, as an inducement to a contract, and not a general guaranty or promise as to future events, dependent on future contingencies, thoroughly believed in by the person making'the statement, be ever he so badly mistaken in his opinion or judgment, (p. 386).</p> <p>2. False Representation — Fraudulent Purpose — Voidable.</p> <p>If a person, being in a situation to know, takes advantage of the confiding ignorance of another, not equally well situated, and falsely represents that a future event will certainly come to pass, and thereby induces the deceived to enter into a disadvantageous contract, such misrepresentation cannot be excused as the mere expression of opinion, but will be regarded as the utterance of a known falsehood for fraudulent purpose, and is actionable and renders the contract voidable, (p. 387).</p> <p>3. Guaranty — Insufficient Plea.</p> <p>Proof of a general guaranty as to future undertakings, not shown to be made as a specific inducement to secure the contract in suit, is insufficient to sustain a plea alleging that in consideration of the making of such contract the plaintiff undertook and promised that such future undertaking would certainly be done and performed by plaintiff and others, (p. 388).</p> <p>4. Parol Evidence — Contracts.</p> <p>Parol evidence of prior or contemporaneous verbal contracts or promises is not admissible to vary, contradict, or explain the ■ terms or consideration of a complete, unambiguous written contract. (p. 388).</p>

Action by Silas Richmond against D. J. Henderson before a justice. On certiorari the circuit court reversed' a judgment for plaintiff, and he brings error.

<p>1. Default Judgment — Error.</p> <p>Where a joint judgment is rendered against two or more defendants hy default, it is error to reverse it on motion, under section 5, chapter 134, Code, as to one defendant only, and not as to all. (p. 409).</p> <p>2. Note — Endorsement—Liability..</p> <p>Where the payees in a negotiable note make the following endorsement on the hack of the note, “ifor value received, we hereby guarantee the payment of the within note at maturity, waiving demand, notice of nonpayment, and protest. [Signed] A. G. Lee & Co.,”- — held, that this operated as a transfer of the note, and as an indorsement thereof with enlarged liability, (p. 410).</p> <p>3. Assumpsit.</p> <p>An action of assumpsit may he maintained on such note, together with other negotiable notes by the same makers, and with the simple endorsement of the same payees jointly against the makers and endorsers, (p. 411).</p>

<p>1. Equity — Filing Answer — Searing of the Cause.</p> <p>Under section 53, chapter 125, Code, it is the right, of a defendant in equity to file his answer at any time before final decree, although he may he in default for want of an answer; but the hearing of the cause is not to he delayed thereby unless for good cause shown, (pp. 419, 420).</p> <p>2. Wipe's Seperate Estate — Creditors.</p> <p>When a married woman allows her separate estate to be • indistinguishably mixed with the property of her husband, hers is lost to her as separate estate as to the creditors of the husband. (p. 422).</p> <p>3. Fraudulent Conveyance — Subrogation.</p> <p>Where a conveyance is set aside as fraudulent as to creditors, the fraudulent vendee in such conveyance, who has paid a vendor’s lien on the land conveyed as part of the consideration for the fraudulent purchase, will be subrogated to the rights of the original holder of the vendor’s lien against the land. (p. 423;.</p>

<p>1. Judgment Disbarring' — Writ of Error.</p> <p>Where a judgment is rendered by a circuit court disbarring one of the attorneys practicing before it for alleged malpractice in disregarding a stipulation with opposing counsel as to the continuance of a case, this Court has jurisdiction by writ of error to such judgment, (p. 428).</p> <p>2. Evidence — Supporting Charges.</p> <p>The evidence in such proceeding to disbar an attorney must support the charges, and be clear and preponderating. (p.-429).</p> <p>3. Power to Disbar — Judicial Discretion.</p> <p>The power to disbar an attorney is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility, but in doing so the court should exercise a sound and just judicial discretion, (p. 429).</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by Morris’ etxecutor against Morris’ devisees. From the decree, the executor appeals.</p>

<p>Error to Circuit Court, Mineral County.</p> <p>M. A. McGahan was convicted of keeping a disorderly house, and brings error. . •</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Bill by S. W. Golf against Franklin-McLain and others. From a judgment dissolving an injunction and denying a receiver, plaintiff appeals.</p>

<p>i. Co-Tenant — Ouster—Recovery Barred.</p> <p>Acts of exclusive ownership "by one of two co-tenants, such as the open sale, conveyance, and delivery of possession thereunder of the whole subject-matter, amount to a complete ouster of the other co-tenant, and unless he brings suit -within ten years thereafter his right of recovery will be barred by the statute of limitations, (.p. 451).</p> <p>2. Running of Statute — Infant Heirs.</p> <p>If, after the right of action has accrued and the statute of limitations has begun to run, such ousted co-tenant dies, leaving infant heirs, the statute continues to run, and their rights are barred, notwithstanding their disability, in the same number of years as would bar their ancestor. They do not inherit the land, but a mere limited right oj. action, with days already numbered; and, unless they or their friends take the necessary legal steps to save the same within the period fixed by statute, their right of action is forever lost. (p. 452).</p> <p>3. Pleading — Facts ¡shown.</p> <p>A bill carefully drawn may show facts sufficient to sustain the bar of the statute of limitations, (p. 451).</p> <p>4. Review on Appeal — Incompetent Testimony.</p> <p>Incompetent and inadmissible tes^mony will not reverse a decree when the uncontroverted facts in the hill are sufficient to sustain it. (p. 451).</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>Bill by Bodkin & Cutlip against Bollyson & Moon. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal — Facts in Issue.</p> <p>The finding of the circuit court as to facts in issue, unless against the plain preponderance of the evidence, is conclusive upon this Court, (p. 460).</p> <p>Joint Lessor — Original Lease■ — Confirmation.</p> <p>If one of several joint owners of a lease, to cure a defect therein, takes an additional lease in his own name, he will be presumed to be acting for the common benefit of all the owners, and that such additional lease is a confirmation of the original lease, (p. 461).</p> <p>3. Ouster — Second Lessor — Unreasonable Delay.</p> <p>To oust his co-owners of such benefit, the second lessor must show that, after they had notice by his acts or words that he intended to hold his lease adversely to them, they delayed for an unreasonable time in accepting the terms thereof, (p. 462).</p> <p>4. Rights as to Liabilities — Benefit of Co-Owners.</p> <p>If for 11 months, by his conduct, letters, and words, he leads his co-owners to believe that he has no intention of asserting the second lease in avoidance of the first, but during this period they continue mutually enjoying and developing the common property, he cannot suddenly, and without reasonable notice to them, set up sole ownership under the second lease, and in this manner destroy the common ownership under the first. The dealings between co-owners must be fair and open, and free from deception and evil appearances, (p. 462).</p>

<p>1. Equity — Finding of Commissioner — Betting Aside:</p> <p>The conclusions of a commissioner in chancery on purely questions of fact referred to him for ascertainment, and involving the weight of conflicting testimony, should have every reasonable presumption in their favor, and should not be set aside unless it plainly appears they are not warranted hy any reasonable view of the evidence, (p. 465).</p> <p>2. Permanent Improvements — Bad Title.</p> <p>It is not proper to allow permanent improvements to-a claimant who has notice, actual or constructive, that his title is had, although he act under the mistaken belief that it is good, (p. 467).</p> <p>3. Enhanced Value — Allowance.</p> <p>In case permanent improvements are allowed, it is the enhanced value thereof to the landowner, and not the cost thereof to the claimant, that furnishes the measure of allowance, (p. 467).</p> <p>4. Rent — Annual Credit.</p> <p>In calculating a purchase money and rent account, the rent, less the taxes, if it exceeds the interest, should be annually credited on the purchase-money balances, (p. 469).</p>

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by Henry Wick & Co. against Charles L. Dawson and others. Judgment for plaintiff. Defendants appeal.</p>

<p>1. — Sale of Decedents Land — Incumbrances.</p> <p>A court of equity lias the authority to sell the incumbered real estate of a decedent, upon a hill filed by the administrator for the purpose of paying decedent’s debts, free from the in-cumbrances, and satisfy such incumbrances out of the proceeds of sale. (p. 478).</p> <p>2. Building Association — Death of Borrowing Member.</p> <p>Ordinarily, the death of a borrowing member of a building association stops the imposition of fines for non-payment of dues, interest, and premium, and also ends membership, with liability for withdrawal fees. (p. 478).</p> <p>3. Commissioner’s Report — Attorney’s Fee.</p> <p>When the circuit court, on confirmation of a* commissioner’s report, fixes an attorney’s fee at twenty-five dollars, this Court will not disturb such finding, unless plainly contrary to the evidence in support of such fee. (p. 478).</p> <p>■±. Appeal — Jurisdiction.</p> <p>The amount in controversy between the litigants must exceed one hundred dollars, exclusive of costs, to give this Court jurisdiction. (p. 479).</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Anthony J. Manns was convicted of murder, and brings error.</p>

<p>Appeal from Circuit Court, Harrison County:</p> <p>Action by Ingaby M. Windon against William A. Stewart and others. Judgment for plaintiff, and defendant Stewart appeals.</p>

<p>I. Discontinuance- — Lis Pendens.</p> <p>Where there is a discontinuance of a case by a chasm in the proceedings at rules, and it has never been set for hearing so as to be on the hearing docket, the defendant cannot sustain a motion under Code, chapter 76, section 6, to enforce the execution of a release of a notice of Us pendens, recorded in such suit, in advance of a judgment to declare such discontinuance and dismissing the suit. (p. 499).</p> <p>■ 2. Chasm- — Dismissal.</p> <p>Where there is a discontinuance of a case by reason of a gap or chasm in proper proceedings at rules, and the case has not reached the trial docket, and no order of discontinuance having been entered at rules, the defendant may have action of the court declaring the fact of discontinuance, and dismissing the case, though the chasm operating as such discontinuance occurred prior to the last vacation, (p. 501).</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Harriet L. Shaver against Thomas B. Edgell. Judgment for plaintiff. Defendant brings error.</p>

Bill by Charles A. Young and another against the improvement Loan and Building Association and others. Decree for complaints, and defendants, the Kilbourne Knitting-Machine Company and others appeal.

Suit by Samuel K. George and the Jefferson. Building Association No. 9 against Joseph T. Hess and others. Decree directing sale of certain lands, and Mary A. Hess, wife of Joseph Hess, filed a petition for relief. Petition dismissed, and she appeals.

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by Charles and Louis Becker against James C. McGraw. Decree for defendant, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Hugli M. Martin and others against the Monongahela Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by H. E. Bailey against W. W. McClaugberty,and 0. C. Jenkins. Decree for plaintiff. Defendants appeal.</p>

<p>Appeal from, Circuit Court, Braxton County.</p> <p>Bill by J. S. Hyer and J. H. Chapman against Smith, Myers & Schnier and others. Judgment for plaintiffs. Defendants appeal.</p>

<p>*Error to Circuit Court, Mingo County.</p> <p>Elias Hatfield, Jr., was convicted of murder in the second degree, and brings error.</p>

<p>1. Equity — Reference to Commissioner.</p> <p>The objection to the reference of a cause to a commissioner in chancery comes too late after the cause has been fully heard and determined by him bn the merits against the objector, (p. 578).</p> <p>2. Findings Sustained.</p> <p>The findings of a commissioner, unless plainly shown to be against the preponderance of the evidence, will be sustained, (p. 578).</p> <p>3. Party to a Controversy — Presumption.</p> <p>When a party to a controversy fails to examine a material ana important witness in his behalf, the law raises the presumption that such witness’ evidence, if given, would be adverse to such party. (p. 581).</p> <p>4. Weight oe Evidence — Commissioners Finding.</p> <p>The weight and sufficiency of books of account as evidence is peculiarly a question of fact for the commissioner,’ and his finding with regard thereto will not be disturbed unless manifestly erroneous, (pp. 581, 582).</p> <p>5. Principal and Agent — Burdens in Whole.</p> <p>A person who employs an agent to buy up timber lands, and such agent engages the services of another for certain compensation agreed between them, cannot escape the payment .of such compensation if he accepts the purchases secured thereby. If he would enjoy the benefits, he must assume the burdens in whole, and not in part. (p. 582).</p> <p>6. Benefits — Responsibilities.</p> <p>If a person receives the benefits of the dealings of an unauthorized agent, he must also discharge all responsibilities occasioned thereby, (p. 583). •</p> <p>7. Deed — Estoppel.</p> <p>If a person holding a mere contingent right therein executes a deed for personal property in favor of the real owner of such property, such deed will not estop the grantor from showing that the grantee was the true owner of such property prior to the execution of such deed, and that he was induced to make the same by such owner, who was fully acquainted with the condition of the property at the time of the execution of the deed. He will, however, be estopped from denying that whatever interest he might have had in such property passed by such deed. (p. 587).</p> <p>8. Unauthorized Acts — Responsibility.</p> <p>If an agent notifies his principal of unauthorized acts committed by himself, the principal, to escape responsibility therefor, must promptly . repudiate the same before the rights of third parties are affected; otherwise, he will be estopped to deny that such acts of such 'agent were authorized, (p. 590).</p>

<p>Application of Samuel 0. Koonce for writ of mandamus to Judge E. S. Doolittle.</p>

<p>1. Equity — Answer of Third Party.</p> <p>A petition filed in a chancery suit by a stranger to it, in which he or his rights are not mentioned, setting up matter not mentioned in the bill, making no parties, containing no prayer for relief, thougn its matter is in opposition to the bill, is improperly admitted as his answer, as if a defendant, and it is error to pronounce a decree resting alone upon such petition for its basis, (pp. 596, 597).</p> <p>2. Oral Contract — Married Woman.</p> <p>. An oral contract by a married woman for the sale of her land cannot be specifically enforced under the doctrine of part performance. (p. 600).</p>

<p>1. Bill of Exceptions — Signing.</p> <p>Bills of exceptions must be signed, either during the term at which final judgment is rendered or within thirty days after its close, else they are no part of the record, and cannot he considered by this Court, (pp. 601, 602).</p> <p>2. After Pinal Judgment — Time Allowed.</p> <p>A court has no power to grant more than thirty days’ time after a term at which final judgment is rendered for signing a bill of exceptions, and bills signed after thirty days from the close of such term are signed without jurisdiction, and are no part of the record, (p. 605).</p>

<p>1. Bill of Exceptions — Time to File.</p> <p>If a bill of exceptions be both signed and certified by the judge within thirty days from the close of a term of court, as it must be, the fact that the ^ certificate of the judge does not reach the clerk, or is not recorded by him, within thirty days, will not vitiate the bill; but the certificate must be recorded in order to make the bill a part of the record, (p. 608).</p> <p>2. Summons — Return Day — Limitation.</p> <p>A summons commencing a suit, which is void because it has a wrong return day, is nevertheless effective to bring into being a suit such that its dismissal by the court for that cause will give one year after its dismissal for a new suit, under the statute of limitations, (p. 608).</p> <p>3. Negligence — A Question of Fact.</p> <p>Though questions of negligence and contributory negligence are, ordinarily, questions of fact to be passed upon by a jury, yet, wnen the undisputed evidence is so conslusive that the court would be compelled to set aside a verdict in opposition to it, it may withdraw the case from the consideration of the jury, and direct a verdict. Elliott v. Railway Co., 14 Sup. Ct. 85, 150 U. S. 245, 37 L. Ed. 1068. (p. 610).</p> <p>4. Negligence — Fact for Jury — When?</p> <p>When, in actions for negligence, the facts are undisputed, and such that all reasonable minds must _draw the same conclusions iroErthemTit is The duty of the judge to say, if asked, as a matter of law, whether or not they make a case of actionable negligence. In such cases, however, when the facts are in dispute, it is the duty of the judge to submit them to the jury. (p. 611).</p> <p>5. Negligence — Evidence Sufficient to Prove.</p> <p>In actions for negligence, the courts have abrogated the doctrine that a mere scintilla of evidence from which there might be a surmise of negligence is sufficient to carry a case to the jury, and have adopted the more reasonable rule that there is a preliminary question which the judge must decide, if asked, whether, granting to the testimony all the probative force to which it is entitled, á jury can properly and justifiably infer negligence from the facts proved; for, while negligence is usually an inference from facts, it must be proved, and competent and suflicient evidence is as much required to prove it as to prove any other fact. (p. 612).</p> <p>6. Actions on Negligence — Conflict.</p> <p>In all actions founded on negligence, whenever the facts are in dispute or conflicting, or the credibility of witnesses is involved, or the preponderance of evidence, or whether the facts admitted or not' denied are such that fair-minded men might draw different inferences from them, it is a case for jury, and a case should not be withdrawn from the jury um the inferences from the facts are so 'plain as to be a legal conclusion,^ — so plain that a verdict for the plaintiff would have to be set aside as one rendered through prejudice, passion, or caprice, (p. 617).</p> <p>7. Accident — Question of Fact — Burden of Proof.</p> <p>The mere fact that an accident happens upon a railroad is not alone sufficient, as between employer and employe, to raise a prima facie case of negligence on the part of the railroad company, though it would be in the case of a passenger injured. Where an employe injured by an accident attributes it to defective machinery or appliances, he must prove such defect; he carrying the burden of proof, (p. 618).</p>

Action by Rosendorf & Co. against J. E. Poling & Co. before a justice. Judgment for defendants was rendered on appeal in . the circuit court, and plaintiffs bring error.

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by William McCulley against Harriet McLean and others. Decree for plantiff, and defendant Harriet McLean appeals.</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Bill by U. B. Buskirk against E. M. Chaim and others. From an order dismissing the bill, plaintiff appeals.</p>

<p>1. Equity — Innocent Persons.</p> <p>When one oi two innocent persons — that is, persons each guiltless of an intentional moral wrong — must suffer loss, it must he borne by that one of them who, by his conduct, acts, or omissions, has rendered the injury possible, (p. 638.)</p> <p>2. Holder — Transferror—notice—Fraud—Consider ation.</p> <p>In order that the holder may stand upon a better footing than his transferror, he must acquire the instrument without notice of fraud, defect of title, illegality of consideration or other fact which impeaches its validity in his transferror’s hands, (p. 638).</p> <p>3. Negotiable Note — Borrower—Endorsee—Equity.</p> <p>Where a party, through his agent, loans money to a third party, and said agent takes from the borrower a negotiable note payable to his own order, but pays no part of the consideration therefor, and the party loaning the money looks after the deed of trust by which the note is secured, and has the same recorded, and then said agent indorses said note to the party lending the money, who has full knowledge of the transaction, such indorsee cannot be regarded as a holder for value, and protected against equities arising between the maker of said note and said agent, (p. 639).</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Action by Anthony B. Poling and Yerney Poling against Anthony Huffman and James A. Williamson, administrator of Rebecca E. Huffman. From the decree Israel Poling, executor of Anthony Poling,- deceased, pending suit, appeals.</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by Samuel Y..Woods against Ira Ward and others. Decree for plaintiff, and Taylor Ward appeals.</p>

<p>1. Fbaudulent Conveyance — Grdeitors Bill — Parties.</p> <p>In a suit brought to have a conveyance of land, held void as to creditors, and to subject the land to the payment of the debts of such creditors, it is not required or necessary that the creditors, fraudulent grantor or debtor should be convened, and their debts reported, (pp. 687-689).</p> <p>2. Bill — Answer—Burden of Proof.</p> <p>Under section 59, cnapter 125, Code, the effect of an answer denying the material allegations of a hill is to put the plaintiff oh satisfactory proof of the truth of such allegations, (p. 6S9).</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by tire First National Bank of Parkersburg against Edward C. Handley and others. Decree for plaintiff, and Hattie Handley, administratrix, appeals.</p>