Volume 53 — West Virginia Reports

<p>1. Debt — Statute of Limitations.</p> <p>An executor or administrator cannot mate a new promise to pay a debt of his decedent either before or after the debt has been barred by the statute of limitations, (p. 3).</p> <p>2. Administrator — Statute of Limitations.</p> <p>The answer of an administrator pleading the statute of limitations to a demand against the estate of his decedent goes to the defence of both the personal and real assets, (p. 3).</p> <p>3. Coparcener — Agency—Estates.</p> <p>The answer of one coparcener to a bill to set up a demand! against the estate of the father of the coparcener and charging that in making a new promise he acted as agent for his co-parceners, which answer denies such agency, operates as a-denial of the charge of agency by the other parceners, thougfe they have not appeared, (p. 4).</p>

<p>1. Attokuey — Oollections—Bond.</p> <p>Where an attorney who has for collection a claim which is in • judgment on forthcoming bond and the same is paid to him in full by the principal judgment debtor, and the attorney after-wards causes execution to be issued on said judgment and to be levied on the property of one of the sureties in said forthcoming bond, the property sold and money again collected by said attorney, such attorney is liable in an action by such surety to recover back the money so collected on said judgment the second time, and it is no defense to such action to plead that he was acting therein as attorney for the judgment creditor, (p. 44)</p>

<p>1. Bill — Judgment—Demurrer.</p> <p>A bill filed to enjoin a judgment rendered by a justice, as void, which fails to show that plaintiff was without adequate remedy at law, as bad on demurrer and should be dismissed, (p. 49).</p>

<p>1. ' Statute — Bill—Evidence.</p> <p>Under our statute, an answer to a bill, is not evidence for the defendant, whether it he sworn to or not. Its only effect is to put the plaintiff on proof of the truth of the allegations in his bill, denied by the answer. Code, chapter 125, sections 38, 59. (pp. 56-57).</p> <p>2. Deed — Fraudulent Conveyance.</p> <p>Where a deed is assailed by a creditor of the grantoir, on the ground that it was not upon consideration deemed valuable in law, the burden of proving that the deed was made for a valuable consideration rests on the grantee, or persons claiming the benefit of the deed. (p. 61).</p> <p>3. Fraudulent Conveyance,</p> <p>It is not always necessary that direct affirmative or positive proof uf fraud be given. It may be, and usually is, proved by circumstantial or presumptive evidence. If the evidence is sufficient to satisfy the mind and conscience of the existence of the fraud, it will be sufficient, a’though. it does not lead to a conviction of absolute certainty. The fraud need not be proved - beyond a reasonable doubt. Ballard v. Chewning, 49 W. Ya. 508, 519. (p. 62).</p> <p>4. Fraud.</p> <p>A cause in which fraud may be inferred from the 'facts and circumstances appearing therein.</p>

<p>1. Suspending Bond — Property.</p> <p>The delivery to the sheriff of a suspending bond, as provided in section 4 of chapter 107 of the Code, by a claimant of property levied upon under a fieri facias, ipso facto stays the execution, and a sale of the property thereunder, before the right of' property has been determined, as provided in section 5 of said chapter, is void. (p. 66').</p> <p>2. Sale — Title—Sheriff.</p> <p>A purchaser at such sale acquires no title to the property, and,, after notice or upon a rule to show cause, may be summarily required to return the property to the custody of the sheriff. (P. 68).</p> <p>3. Attachment — Jurisdiction—Fieri Facias.</p> <p>Property levied upon under a fieri facias is in the custody of' the law, and the court has power, by attachment, punishment for contempt, and the writ of restitution, to maintain its jurisdiction against its own officers, parties and other persons, (p. 72).</p>

<p>1. JURISDICTION — Judgment—Res Adju&icaia.</p> <p>If this Court take jurisdiction of a judgment and affirm it, the plaintiff in error cannot afterwards in any proceeding 'question such jurisdiction as it is res adjudicate, as to him. (p. 78).</p> <p>2. Judgment — Error.</p> <p>A motion hy the defendant to correct a judgment for errors apparent on the face of the record comes too late after such judgment on writ of error obtained by him has been affirmed by this Court without reservation, or unconditionally, (p. 79).</p>

<p>1. Pleadings.</p> <p>It is a settled rule of the common law strictly adhered to by this Court that before a trial can be had by a jury in a common law suit on issue joined, the defendant must put in or file his plea, and the record must show this fact arid the character of the plea on which the issue is joined, (p. 80).</p>

<p>1. Jurisdiction.</p> <p>When the form of procedure in the trial court does not require that the record or evidence show the value of the property in controversy, and it does not appear therein, affidavits may be filed in tile Supreme Court to show a value giving jurisdiction, (p. 83).</p> <p>2. Justice — Judgment.</p> <p>In a trial of right of property originating in a justice’s court under section 152, Code, chapter 50, on appeal to' the circuit court, the verdict finds the property to be the property of the claimant, and the court overrules a motion to set aside the verdict, and gives judgment for costs, but renders, no judgment touching possession of the property. No writ of error lies for want of a final judgment, (p. 84).</p>

<p>1. Covenant.</p> <p>In order that a covenant, be a real covenant running with land it must be in a grant thereof, or some estate or interest therein. There must be privity in estate between the parties. It is not .sufficient that it merely concerns land. ■ (p. 92).</p> <p>2. Covenant — Agreement.</p> <p>In an agreement one party covenants with the other to maintain and repair dams to supply water to the mill of the cove-nantee, and to prevent trash from gathering in a mill-race conveying the water. This is a personal, not a real covenant, (p. 93).</p> <p>3. Covenant — Land.</p> <p>A covenant not in nature and kind a covenant real, but providing that" the heirs, devisees and assigns of the covenantee shall have its benefit, which covenant benefits, and does not charge, land, can be enforced by an a ienee deriving the land from the covenantee, (p. 93).</p> <p>4. Covenant — Estate—Owner—Decree.</p> <p>One purchasing at a judicial sale lands sold from a person is a privy in estate with such former owner, and is entitled to the benefit of a real covenant running with the land and bound as res judicata by a decree binding a former owner, (p. 94).</p> <p>5. Administrator — Commissioner—Creditor.</p> <p>In a suit by an administrator under section 7, chapter 86, Code 1899, to convene creditors of a decedent, when a creditor presents his demand before a .commissioner taking an account of debts for allowance against the estate, a decree allowing or disallowing such demand is res judicata as to the creditor, and also the representatives of the estate and a party purchasing land of the estate under the decree, (p. 94).</p> <p>6. ’ Covenant — Administrator—Contract.</p> <p>In a suit by an administrator to convene creditors of a decedent under section 7, chapter 86, Code 1899, one claiming a demand against the estate under a contract with the decedent binding one to maintain dams to supply water to a mill, presents it in such suit for.allowance, and it is resisted by the administrator and heirs of the decedent on the ground that the covenant was broken, and that the party was not entitled to compensation for maintaining such dam for that reason, a decree allowing such demand is conclusive to show that such agreement was not broken in the lifetime of the decedent, as between the covenantor and an assignee of the land benefitted by the covenant to show comp’iance with the covenant in the lifetime of the decedent, (p. 96).</p> <p>7. Covenant — Damages. £</p> <p>A covenant to maintain and repair dams to supply water for a mill. One breach of it will not be a total breach during its whole term and abrogate the contract and entitle the covenantee to recover permanent damages, past and future, in one action, (p. 97). *</p> <p>8. Contract — Damages.</p> <p>Where there is a breach of a contract and the party suing for damages has failed to do an act which he can do reasonably, and thus enhances the damage originating from such breach of contract, he is not precluded by his negligence from all recovery, but the increased damage caused by his-negligence is to be excluded in assessing damages — his negligence goes in mitigation of damages, (p. 98).</p> <p>9. Negligence.</p> <p>The subject of negligence by a party injured by a breach of contract discussed, (p. 100).</p> <p>10. Contract — Damages.</p> <p>In an action for hi’each of contract the damages recovered must he such as will give, and only such as will give, compensation for the actual loss directly flowing from ue breach of the contract, (p. 102).</p>

<p>1. Declaration — Railroad Go. — Damages.</p> <p>' A declaration in assumpsit based on a claim of plaintiff against a railroad company for personal injuries, which, plain-, tiff claims was compromised by defendant agreeing to give plaintiff-employment at a stipulated per diem.as track walker, as long as defendant kept a track walker on the section designated, and from which service he was wrongfully discharged, which fails to allege a complete accord and satisfaction is bad on demurrer. (p. 105).</p> <p>2. Declaration.</p> <p>A declaration in assumpsit based on mutual promises, which fails to allege the promises made by plaintiff and that defendant “in consideration of such promises” undertook and promised to do the things alleged is demurrable, (p. 107).</p>

<p>1. Property — Sale—Injunction.</p> <p>V. C., administrator of the estate of P. C. J., filed her hill in the circuit court of T. County, Not. 4, 1901, against G. T. C., late husband of P. J. C., in possession of the personal property on the real estate held by him by the curtesy, a part of which personal property defendant admitted the administrator was entitled to, but a part of which he claimed the title to, himself; praying that defendant be restrained and enjoined from interfering with plaintiff in making sale of said property on the-home premises, and that the writ of injunction be served on the-morning of the day of sale, November 16, 1901, by the shem-i. of T. County, or his deputies and that he be directed in said-injunction to prevent by restraint and arrest the said G. T. C. from violating such inhibition and injunction; and further praying that she also have the protection of the said sheriff to the auctioneer and to the people who might attend the said sale-to bid on said property and in pursuance of said sale to make-removal of any property that they might purchase. Held: Error to grant the injunction “as prayed for in the bill,” as it appeared from the bill itself that the title to the property sought be sold was in question, (p. 109).</p>

<p>Error to Circuit Court, 'McDowell County.</p> <p>Action by John W. Waldron against J. J. Sperry. Judg-. ment for plaintiff. Defendant brings error.</p>

<p>1. Now-Negotiable Note — Endorser.</p> <p>Where a non-engotiable note bears on its back the signatures of the promisee and another person, in such manner as would make them first and second endorsers, respectively, if the note were negotiable, the parties so signing are not deemed to have thereby made a complete and specifiie contract, analogous to the contract of commercial indorsement, making them liable as guarantors in the order of their signatures; and parol evidence is admissible to show the relation which they bear to one who asserts a liability against them on such note. (p. 129).</p> <p>2. Note — Endorsers.</p> <p>When such paper does not represent an existing debt, but is made for the purpose of obtaining on it a loan of money for one, or all, of the parties to it. a person who makes such loan on the faith of it and takes it, may, in the absence of an agreement to the contrary of which he has notice, treat those whose names are on the back of it as co-promisors with him who signed on its face, or as guarantors, at his election, (p. 134).</p>

Bill by A. W. Corley, executor, against Sarah C. Corley and others. Judgment for plaintiff. Proceedings by Bland & Bland against Louisa W. Kelly to secure attorney’s fees. Judgment for Kelly, and Bland & Bland appeal.

<p>1. Corporation — President.</p> <p>A president of a corporation is not entitled to any compensation for services rendered as such president unless the same is allowed hy the stockholders. Section 53, chapter 53, Code. Ravenswood! 8. &. R. R. Go. v. ’Woodward, 46 W. Ya. 558, (33 S. E. 285.) (p. 150).</p>

<p>1. Lease.</p> <p>A lessor executes at different time two sets of oil leases to two different lessees, reserving the usual royalty, and after the first leases have been avoided hy the execution of the second, the first lessee pays two years’ rental or commutation money to the lessor with full knowledge of the execution of the second leases; such payment does not entitle such lessee to claim the reserved royalty or any part thereof, either in law or equity, (p. 153).</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Action by the Troy Wagon Company against Woodford Hutton. Judgment for defendant, and plaintiff appeals.</p>

Error from Circuit Court, Mineral County. Action by M. C. Totten against Sandford Whip. Judgment for plaintiff, and defendant brings error. On death of both parties, personal representatives were substituted, to-wit, E. E. Tower as plaintiff, and E. J. Whip as defendant.

<p>1. Wnx.</p> <p>Under the following provisions in a will: “21 — I will that the balance of my lands not willed shall he sold and the money given to my wife for charitable purposes. I will that the balance of my bonds not willed shall be collected and the money given to my wife for charitable purposes.” Held,'. The wife takes the money bequeathed, absolutely, (p. 167).</p> <p>2. Wnx.</p> <p>The words “for charitable purposes” are mere precatory words containing no command or instructions, hut leaving the whole matter in the discretion of the legatee, (p. 169).</p> <p>3. ItEsacy — Bounty.</p> <p>A gift to enable a legatee to confer bounty on others, is not a trust, but a beneficial legacy to him. (p. 169).</p> <p>4. Wnx.</p> <p>Where the will clearly shows that the use of the property indicated is merely the motive which leads the testator to make the gift and if the beneficiary is not limited in his discretion as to the use which he is to make of it, the gift does not impose the trust, (p. 169).</p>

<p>1. Court’s Order.</p> <p>An. order in a chancery cause entered “by consent of all parties represented by counsel, the pleadings and proofs are closed and this cause is submitted for a final adjudication,” is binding upon all the parties who had, at the time of the entry of the order, appeared in the case. (p. 183).</p> <p>2. Consent Decree.</p> <p>• A consent decree can only bind the consenting parties, (p. 188).</p> <p>3- Trust Deed — Husband and "Wife.</p> <p>Where there is a subsisting lien by deed of trust upon a piece of real estate, the property of the wife, and subsequently the husband with his'own. means makes valuable imprivements thereon in fraud of the rights of his creditor who files a bill and succeeds in charging the value of the improvements so made thereon, on account of his debt, he has a lien on said improvements to the amount of the value thereof, subject to the deed of trust. Held: Error to require the deed of trust debt to be paid out of the amount decreed to plaintiff against the improvements, (p. 189).</p>

<p>1. Beal Peopehty- — Mechanic’s Lien. '</p> <p>A three-story building on a corner, at the intersection of an Avenue and street, and another building, two stories high, trailt at a different time, lout adjoining the first mentioned, and fronting on the street, constitute a block, called the “Plarvey Building,” in the city of Huntington. P. contracted with H., the executor of the deceased owner of the property, to alter and repair each of the said buildings, but by separate agreements in writing, respectively relating to each of said houses, executed on different dates, and for different sums, to be paid to the contractor. Said contracts were duly recorded before any labor was performed upon, or materials furnished for, either of said buildings. The defendants performed labor upon, and furnished materials under contracts with P. for, the alteration, and repair of said buildings, provided for in said contracts between P. and H. The sub-contractor.s assert, in this suit, their demands against P. for said labor and materials, as liens upon said property; but their accounts filed therefor, do not specify upon which of said buildings, or parts of said “Harvey Building,” or block, the said labor was performed, or for which said materials were furnished. Held: The said accounts are insufficient, and cannot be enforced as liens on said property, (p 193).</p>

<p>1. Oil Lease.</p> <p>Petroleum oil- and natural gas are included in the comprehensive idea which the law attaches to the word “land,” and are a part of the soil in which they are found. A lease of land for the purpose of mining coal, or extracting oil or natural gas from the soil, or rock, is, in effect, a grant of a part of the corpus of the land. (p. 2X4).</p> <p>2. Guardian and Ward — Oil Lease.</p> <p>Without authority from a court of equity in a proper proceeding, a guardian, in this State, cannot lease the land of his ward for oil, or gas purposes, or for other developments, (p. 215).</p> <p>3. Widow’s Dower.</p> <p>A widow entitled to dower in land, is not seized of any part of the land, by any right of dower, until it is assigned to her. (p. ’215).</p> <p>4. Void Lease — Trespass.</p> <p>Where a person enters upon land, without authority, uúder a void lease, and drills thereon, and takes petroleum oil therefrom, and removes the same from the premises; and threatens to drill other wells, and to take the oil produced therefrom, a -court of equity will perpetually enjoin him from all operations under said void lease, will cancel said lease, and retain the cause for all purposes, and proceed to a final determination of all the matters at issue therein; although the plaintiffs may have a remedy at law against the wrong doer, for the trespass, (p. 216).</p>

<p>1. Executor — Will—Appeal.</p> <p>An executor of a wi'l may propound it for admission to probate, and prosecute an appeal from a decree, declaring it void, in a suit brought to impeach it. (p. 236).</p> <p>2. Wnx — Bill.</p> <p>Whether a bequest actually made is valid cannot be inquired into upon a bill filed to test the validity of a will. That question is properly raised upon a bill to construe and expound the will. (p. 232).</p> <p>3. Error — Will.</p> <p>It is not error to direct an issue devisavit vel non without proof of the interest of the plaintiffs, unless objection has been made that they would have no interest in the estate if the will were set aside, or unless such want of interest appears from the record itself, (p. 232).</p> <p>4. Winn — Attesting Witness — Execution.</p> <p>Attesting witnesses of a will who are introduced to impeach the will on the grounds of want of proper execution, unsoundness of mind or undue influence, will not be excluded; but their evidence will be viewed with much suspicion; and it is proper to so instruct the jury. (p. 238).</p> <p>5. Will — Attesting Witness — Error—Instruction.</p> <p>When part of the attesting witnesses testify against the will, it is error to instruct the jury that the evidence of the witnesses present at the execution of the will is entitled to peculiar weight, (p. 253).</p> <p>6. Instruction — Error.</p> <p>When a proper instruction is asked, and given, it is error to give another improper instruction which modifies it and nullifies its effect or obscures its meaning, (p. 255).</p> <p>7. Sanity — Expert Testimony.</p> <p>Evidence of physicians as to testamentary capacity is entitled to greater weight than that of non-professional persons, provided they have had personal observation and knowledge of the person whose mental capacity is in question. Otherwise it is not. Rule on this subject announced in Jarrett v. Jarrett, 11 W. Va. 584, Kerr v. Lunsford, 31 W. Va. 659, and Nicholas v. Kershner, 20 W. Va. 255, examined and explained, (p. 256).</p> <p>8. Expert Testimony — Error.</p> <p>Expert testimony, except under special circumstances, is entitled to only such weight as the jury may deem it entitled to when viewed in connection with all the evidence and circumstances; and it is error to instruct the jury that the evidence of physicians testifying as experts only on the trial of an issue devisavit vel non is entitled to great weight, (p. 257).</p> <p>9. Classification of Witnesses — Error—Instruction.</p> <p>It is error to classify witnesses in respect to the weight and value of their evidence by an instruction to the jury unless the classification is based upon a well defined distinction as to the opportunities and powers of the witnesses to know the truth, (p. 257).</p> <p>10. Testator — Sanity.</p> <p>Evidence of the acts and conduct of the testator tending to show soundness of mind at or near. the time of the execution of the will is entitled to more weight than the opinions of witnesses based upon the erratic conduct and eccentricities of the party of whom they speak, (p. 263).</p> <p>11. Testator — Sanity.</p> <p>When there is a doubt as to the competency of the testator to make a will, the fact that he has given his property to persons other than those related to him in a reasonable degree by blood, is proper to be considered by the jury. (p. 266).</p> <p>12. Impeachment — Evidence.</p> <p>When evidence is introduced to show interest on the part of a witness for the purpose of discrediting him, it is improper to refuse to admit evidence to show the extent of such interest or to disprove its existence; and any person who is conversant with the facts may testify as to them, although the alleged contract is between, the witness and a municipal corporation, (p. 267).</p> <p>13. Instruction — 'Witness.</p> <p>An instruction which tells the jury that, if they believe any witness has testified falsely in the case as to the material matters, they may disregard such false testimony or give to it and all the evidence of such witness such weight as they believe it entitled to, is improper in failing to inform the jury that they may disregard all the evidence of such witness. fp. 268).</p> <p>14. Instruction — Witness.</p> <p>If an instruction is proper in other respects it is not vitiated by merely naming the witness to whose testimony it is applicable (p. 269). •</p> <p>15. Court — Instruction.</p> <p>The court is not bound to repeat its instructions, (p. 270).</p> <p>16. Syllabus Approved.</p> <p>Point 20 of the syllabus in McMecKen v. McMeohen, 17 W Va. 683, approved.</p> <p>17. Will — Testator—Insanity.</p> <p>Where a will has been prepared by, and executed in the presence and under the direction of a lawyer of ability and good standing professionally and as a citizen, and two of the attesting witnesses attempt to impeach the will on the grounds of non-execution, insanity and undue influence, and the person under whose supervision it was executed is dead and an effort was made, when too late, to take his testimony, it is proper to admit evidence of his character and capacity, (p. 271).</p> <p>18. Instruction — Error.</p> <p>When an erroneous instruction has been given by the court to the jury, the presumption is that the exceptor was prejudiced thereby, and the verdict will be set aside on account thereof, unless it clearly appears from the record that he could not have been prejudiced thereby, (p. 273).</p> <p>19. Instruction — New Trial.</p> <p>When a correct instruction is refused, the verdict will be set aside, unless the appellate court can see from the record that, even under the instruction, a different verdict could not rightly have been found, (p. 274).</p> <p>20. Instruction — Reversal.</p> <p>The giving of erroneous instructions bearing upon the weight and value of certain testimony, when the evidence is contradictory, is cause for reversal, (p. 274).</p>

<p>1. Elections — Poll Clerk — Ballots.</p> <p>The clause in section 36 oí chapter 3 .of the Code of 1899, requiring each poll clerk to “write his name” on the back of each election ballot sheet, before it is delivered to the voter; and the clause in section 66 of said chapter, declaring that “Any ballot which is not- endorsed with the names of the poll clerks, as provided in this chapter, shall be void and shall not he counted;” are mandatory, and ballots not so endorsed must be rejected in ascertaining the result, (p. 278).</p> <p>2. Official Ballots — Poll Clerks.</p> <p>The purpose of said clauses is to secure identification of the ballots voted, so as to distinguish them from all unvoted official ballots, as well as from all spurious ballots, in the interest of the purity of elections and the preservation of the secrecy of the ballot. Hence, the words, “shall write his name,” mean that the name of each poll clerk shall be placed on the hack of each ballot voted, in his own handwriting, and ballots on which the names of both poll clerks are written by one of them, or by some other person, are void and cannot be counted, (p. 283).</p> <p>3. Elections — Poll Clerk.</p> <p>Such requirements, when r. andatory, are basic and fundamental in their nature, and the declared consequences of violations of them must follow, whether 'such violations result from mere ignorance or inadvertance, or actual fraud, (p. 285).</p> <p>4. Elections — Ballots.</p> <p>The rule that departures from, or violations of, merely directory statutes, regulating elections, by election officers, will not invalidate votes or elections, in the absence of such actual fraud as clearly vitiates the .votes or the election, does not apply in the case of violations of statutory provisions, requiring specific things to be done, and declaring that non-compliance with the requirements shall malte the ballot void. (p. 285).</p> <p>5. Elections — Ballots—Frauds.</p> <p>The clauses of sections 36 and 66 of chapter 3 of the Code of 1899, requiring identification of tbe ballots cast, by the signatures of the poll clerks, being reasonable regulations, designed to prevent fraud, are constitutional and valid, although, they necessitate the rejection of a very limited number of ballots honestly voted, (p. 286).</p>

<p>Appeal from Circuit Court, Greenbrier County. ></p> <p>Bill by Hiram W. Sibley against John E. Stacey and others. Decree for plaintiff, and defendant Carrie E. Thomas appeals.</p>

BiLl by Alexander F. Mathews and others against Samuel F. Tyree and others. Decree for plaintiffs, and defendant William P. Bolling and others appeal.

<p>1. Promissory Note — Jurisdiction—Equity.</p> <p>There is jurisdiction in equity to cancel promissory notes for total failure of consideration and enjoin an action at law thereon, (p. 316).</p> <p>2. Deed — Title—Fraud.</p> <p>A purchaser of land under general warranty deed will not he compelled to pay notes given for purchase money when there has been a decree cancelling the deed vesting title in his grantor because of fraud in such grantor in procuring such deed, and also cancelling, for such fraud, the deed to such purchaser from such grantor, (p. 316).</p> <p>3. Deed — Decree—Warranty.</p> <p>Though one to whom land has been conveyed with general warranty deed, and who has lost the land by a decree cancel-ling both the deed vesting title in his grantor and also the deed to such purchaser, on account of the fraud of such grantor in procurement of the deed to him, has conveyed the land away, yet such purchaser will not be compelled to pay notes given to his grantor for purchase money, whether such purchaser has been made liable or not to his grantee on account of his own warranty, (p. 317).</p> <p>4. Deed — Warranty—Fraud.</p> <p>O’Connor conveyed land to Womelsdorf with general warranty. In a suit by O’Connor’s grantor to cancel the- deed to O’connor and also the deed from O’Connor to Womlesdorf, on account of the fraud of O’Connor in procuring his deed, there is a decree cancelling both deeds. In a suit in equity by Womels-dorf to cancel notes given to O’Connor for purchase money O’Connor cannot, to defeat relief to Womelsdorf, demand that he be placed in statu quo by the reconveyance of the land by Womelsdorf of him. (p. 318).</p>

<p>1. Boakd or Education — Meeting—Notice.</p> <p>A meeting' of two members of a Board of Education, at a time and place of which no notice was given to the other member of the Board, and at which he was not present, is not a legal meeting and any attempted official act thereat is null' and void. (p. 321).</p> <p>2. Board of Education.</p> <p>A Board of Education can perform official acts only when a quorum thereof are assembled as a Board, by due notice to all the members, except that the president and secretary may sign orders upon the sheriff for any sum of money which may have been already ordered to be paid. Seo. 6, ch. 45, Code, (p. 322).</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by RT. A. Ensminger and another against B. W. Peterson. Decree for defendant, and plaintiffs appeal.</p>

<p>1. Decree — Bill—Res judicata.</p> <p>When, a decree of the court below, granting the plaintiff the relief prayed for in his hill and dismissing the answer of the defendant setting up new matter constituting a claim for affirmative relief, upon a full hearing upon all matters of law and fact in controversy between the parties and, on appeal, that decree is reversed, upon the ground that the defendant is entitled to the relief asked, and the plaintiff is not, clearly stated m the opinion, and the cause is remanded for further proceedings according to the principles announced in the opinion, the decision of the appellate court is res judicata of all issues passed upon and settled in the opinion, (p. 237).</p>

<p>1. Order — Oterh.</p> <p>An interlocutory order, omitted to be entered by neglect or inadvertance on the part of the clerk of a court, may be ordered; by the court, to be entered nunc pro tunc, by way of amendment, so 'as to make the record show what has actually transpired in the cause, upon clear and satisfactory evidence, consisting of uncontradicted affidavits, and papers filed, and orders entered, in the cause, (p. 342).</p> <p>2. Court — Demurrer—Order-—Judgment.</p> <p>A mere announcement by a judge in court of his opinion to sustain a demurrer to evidence, without an order or direction to the clerk to enter judgment accordingly, is not a sufficient rendition of judgment to warrant the entry of it as final judgment mine pro tune, when it further appears that absence of counsel was the reason for not ordering it to be entered at the time of the announcement, (p. 343).</p> <p>3. Demurrer.</p> <p>By demurring ,to the evidence, the demurrant admits, in favor of the demurree, all inferences of fact that may be fairly deduced from the evidence, (p. 342).</p> <p>4. Raiuroad — Damages.</p> <p>'Having knowledge of the negligent practice of a railroad company in making ‘.“Flying Switches” over a street crossing, came to the crossing on a starlit, but moonless, night, just as an engine was approaching, and after waiting for it to pass, stepped upon the side track on which the cars following the ■engine were, and was struck and injured by a box-car, so following, without a light or person on it, and without any signal having been given. V. and his father, who was with him, testify that, after the passage of the engine and before proceeding, they looked down the track for cars and saw none. As to the extent of the darkness and whether lights in a passenger coach at the rear of the box cars could, or ought to have been seen by them, the evidence is conflicting and uncertain. Held: That on demurrer to. the evidence, judgment was properly rendered for the plaintiff, (p. 346).</p>

<p>1. City — Water Co. — Damages.</p> <p>A water supply company, occupying the streets of a city, under an ordinance, requiring it to maintain a certain number of fire hydrants, and providing for payment of an annual rental therefor by the city out of its revenues derived from taxation, is not liable in an action, either ex contractu or ex delicto, for the loss of a building by fire, which could have been saved but for its failure to have the mains and hydrants suplied with sufficient water for fire protection at the time of the fire. (p. 351).</p> <p>2. Cray — Contract.</p> <p>Recovery for such loss cannot be had by the owner of the property upon a contract between his tenant and the water company to heep the building supplied with water for “domestic, sanitary and fire purposes.” (p. 352).</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by the State, for the use of Joel H. Cutchin, against Annie M. Belcher and others. From an adverse decree, said Cutchin appeals.</p>

<p>1. DECLARATION — Affidavit.</p> <p>If a plaintiff fail to file an affidavit with, his declaration ' in assumpsit, after the defendant has appeared and filed a plea '■ of non-assumpsit, he cannot then file such affidavit and have the defendant’s plea stricken from the record because not accompanied with an affidavit, (p. 362).</p> <p>.2: ' Joint Plaintiffs.</p> <p>Two persons, to whom or for whose benefit a third person .lias promised to pay a single amount cannot maintain separate suits for their alleged shares of such amount, or the whole thereof must sue jointly, (p. 364).</p> <p>3. Assessment — Note.</p> <p>Defendant, promised to pay the sum of $867.16 for the benefit of the Phoenix and Peabody Assurance Companies. The Phoenix Assurance Company instituted suit against defendant foi '' the sum of $495.15, its alleged share of such "joint note. Such suit is not maintainable, (p. 365).</p>

<p>1. CtelTCE FARMING.</p> <p>A contract for tie sale by a sheriff of a deputyship under him for a sum payable at all events is void and not enforceable, being contrary to section 5, chapter 7 of the Code; but a sale for part of the commissions or for the allowance made the jailor by the county for his services is valid, (p: 368).</p> <p>2. Jailer.</p> <p>A jailer is removable at the pleasure of the sheriff, (p. 369).</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by John B. Knight against Zahnhiser Bros. & Sten end another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. County Coubt — Mandamus—County Seat.</p> <p>A writ of mandamus lies to compel a county court to convene and ascertain and declare tide result of a vote upon tide relocation of a county seat, where it has failed and refused to do so. (p. 374).</p> <p>2. Election — Injunction.</p> <p>An injunction does not lie to restrain ballot commissioners from putting on the ballots to be used at a general election the question of the relocation of a county seat, when the county court has made an order submitting such question to a vote. Such an injunction is null and void, and does not render invalid a vote upon such question. (p. 375).</p> <p>3. Election — Injunction.</p> <p>An injunction does not lie to restrain the holding of a public election authorized by law. (p. 376).</p>

<p>Appeal from Circuit Court, Monroe Coiinty.</p> <p>Bill by E. L. Clark against J. C. McClaugliorty. Decree for plaintiff, and defendant appeals.</p>

<p>1. Cbeditor’s Lien — Error—Decree.</p> <p>The Bank of Bramwell brought its suit in the circuit court of Mingo ■ County, for the benefit of itself and all other lien creditors who would come in and contribute to the expenses of the .suit against W., principal debtor, and T., his surety, for the purpose of subjecting the surety’s real estate to the payment of the liens thereon; the cause was referred to a commissioner to ascertain and report the real estate of said T. and the liens thereon, and on the filing of the commissioner’s report, on motion of the plaintiff, the cause was remanded to rules with leave to file an amended bill making new parties, to sue out process, etc. An amended bill was filed but it does not appear from the record that it was matured. The cause was brought on to be heard, among other things upon the demurrers of T. and W. to the original and amended bills of plaintiff and the defendants, T. and W., suggested the absence of the amended bill, and objected to a hearing of the cause until the same was restored; the amended bill not appearing in the record. Held: Error to enter final decree at that time. (p. 386).</p>

<p>1. Suit — Judgment Liens.</p> <p>Where a suit is instituted by an executor to pay the debts of the estate out of the real estate of the testator, there being no personal assets; the estate being largely indebted, principally on account of endorsements and suretyship for which security' debts there are judgment liens against the principal debtor and in the suit the lien creditors of the principal debtor have been convened; the principal debtor is not entitled to claim the benefit of sec. 7, ch. 139 Code, providing that no sale shall be made of his realty unless it appear to the court that the rents anu profits of the real estate subject to the liens will not satisfy the same in five years. The principal debtor’s land shou d first be subjected to the exoneration of the lands of the surety, (p. 398).</p> <p>2. Judgment Lien — Deceased Wife.</p> <p>Where the remainder in the estate of a deceased wife is subject to the payment of the debts of the surviving husband who has been duly adjudged a bankrupt under the U. S. Bankrupt Act of 1898, for which debts the estate of the wife was liable only as security or endorser, and the husband's estate by the curtesy has been subjected to sale and the rents and profits of such curtesy estate sequestered to pay the liens thereon, it is the duty of the circuit court to retain the residue of the life estate of said bankrupt or the proceeds thereof after satisfying the liens decreed against the same, and administer the same for the purpose of protecting and making whole the estate of the deceased wife and her devisees entitled to the remainder after such estate by the curtesy for the debts of said bankrupt for which said remainders were decreed to be sold and for which they were only liable as security or endorser for the bankrupt instead of turning over su«ch residue to the trustee in bankruptcy of said bankrupt, (p. 399).</p>

<p>Appeal from Circuit Court;, Randolph County.</p> <p>Bill by S. A. Moore against S. W. Gainer and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Defective Title.</p> <p>Equity has no jurisdiction to remove cloud over title to land, unless the plaintiff is in actual possession, (p. 413).</p> <p>2. Pleading.</p> <p>If there is no replication to an answer it is taken as true for all its material allegations, (p. 414).</p>

<p>1. Title.</p> <p>In general no one can transfer a better title to a chattel than be bimself bas, even to a dona fide purchaser, (p. 417). .</p> <p>2. Title — Bona Bide Purchaser.</p> <p>Mere possession without more of a chattel by a bailee for storage will not be ground for inference of authority to sell so that a dona fide purchaser can buy from him good title against the owner, (pp. 417, 418).</p>

<p>1. Contract of Sate — Husband and Wife.</p> <p>A contract of sale of the wife’s land by her and her husband, not acknowledged for recordation, cannot be specificálly enforced in equity, and on a bill to enforce the same there cannot be a decree against the wife for repayment of purchase money! Mere colorable claims of jurisdiction will not do. (p. 421).</p>

<p>1. Infant — Next Friend — Judgment.</p> <p>A next friend of an infant cannot compromise a judgment recovered in action in the name of the infant by such next friend, and on part payment release the judgment, (p. 424).</p> <p>2. Whit of Bbeoe — Judgment.</p> <p>In a writ of error in this Court from a judgment an order is made reciting that it' appeared from a writing filed that the “matters in difference herein” have been settled, and dismissing the writ of error “agreed” on motion of the plaintiff in error; such order is not a bar against the judgment, and does not discharge it. (p. 425).</p>

<p>1. Win — Residuary Legatee.</p> <p>A will .gives pecuniary legacies indicating no other fund for their payment, and there is no other personalty for their payment, and then directs a farm to he sold “and after paying all my debts, the balance to go to my daughter Ella Spicer, except” certain other after named legacies. Ella Spicer takes a residuary legatee, and all the legacies are to be paid out of the proceeds of the farm. (p. 428).</p> <p>'2. Winn.</p> <p>When a will directs land to he sold, its proceeds are regarded as personalty at the death of the testator, (p. 430).</p> <p>3. Will — Resictua/ry Legatee,</p> <p>If manifest from the will that legacies are to be paid in any event, the implication is that the residuary legatee gets only after payment of such legacies, (p. 430).</p> <p>4. Attorney Pees.</p> <p>The court disapproves the allowance by courts of exorbitant fees to attorneys out of dead men’s estates, (p. 430).</p> <p>5. Will — Intent.</p> <p>Realty is chargeable with legacies, if the will discloses such intent, (p. 431).</p>

<p>1. Equity — Jurisdiction*</p> <p>Equity has no jurisdiction of a suit by a single creditor of a decedent suing only for himself alone against the administrator and his surety in his administration bond upon a legal demand ■where the administrator has made settlements required by law, unless the bill seeks to- sur-charge or falsify such account; but where the bill seeks to sur-charge or falsify equity has jurisdiction. (p. 434).</p> <p>2. Abstract.</p> <p>A mere abstract, not being a copy, of a judgmeru, does net prove the existence of the judgment, if controverted. (p. 435).</p> <p>3. Judgment — Administrator.</p> <p>A judgment against “T. G. Mann, administrator of Sherman Clarkson, deceased,” as shown in the caption, it not appearing that the recovery was to be levied of goods and chattels of Clarkson in the hands of Mann to be administered, is not a judgment against the estate, but an individual judgment against Mann. (p. 436).</p>

<p>1. Pipelines — Estoppel.</p> <p>A party lays a pipe line for conveyance of water by mistake partly in land of another without right of way, and seeks to maintain the easement on the theroy of estoppel based on conduct of the land owner. He cannot assert such estoppel, first because the land owner’s silence in omittting to tell the other party of his right is not an estoppel in pias; and also because he did not know, that the line would pass or was laid, through his land until after its completion; also because what the land owner is shown to have said without intent to mislead the other' party, or with reasonable expectation that it would .be acted on; also because the other party was not induced or misled thereby to lay the pipe line. (p. 439).</p>

Bills by C. S. Despard and others against Diana Despard and others, and by J. M. Bennett against Allen Stalnaker. The suits were consolidated. Decree for defendants, and plaintiffs appeal.

<p>1. Franchise — Municipality—Notice.</p> <p>In. granting a franchise or privilege, the council of a municipal corporation or a county court performs a legislative, and not a judicial, function, and the notice required by section 1 of chapter 29 of the 'Acts of the Legislature of 1901, is provided merely in aid, protection and extension of the right to be heard by petition, and need not set forth the day on which the application will be, or is expected to be acted upon. As the act requires the application to be filed thirty days before action upon it, and forbids any action upon it until after thirty days publication of -notice, the notice is . merely intended to apprise the public of its pendency.’ (p. 469).</p> <p>2. Order of Publication.</p> <p>A statute requiring notice to be “given by publication for thirty days in some newspaper of general circulation” published in a county or city, is sufficiently complied with by pub- ' lication in the successive issues of a weekly newspaper through the period oí time named, (p. 471).</p> <p>3. Quorum — City Council.</p> <p>Under a city charter requiring a quorum, composed of a majority of the members of the council, for the transaction of business, less than a quorum cannot convene a session of council' and transact business, (p. 474).</p> <p>4. City Council — Vacancy—Illegal Members.</p> <p>Where, in such cases, less than a quorum meet, and attempt to declare the seat of an absent member vacant and elect another person to his seat, and still another to the seat of a member whose resignation has been placed in the hands of the mayor but not acted upon, before the other regular members appear, thus illegally giving themselves an apparent majority in tlie council, the alleged election to fill vacancies are void, and the strangers so obtruded upon the council have no right to- vote, and no measure can he passed by their votes, (p. 477).</p> <p>5. Municipal Corporation — Vacancy.</p> <p>Although in a collateral proceding, parol evidence is not admissible to contradict the record of the proceedings of the council of a municpal corporation, it is admissible in such case, to show that the council had not, and could not have, convened at all, or acquired the right to make a record, when the alleged elections took place, although the minutes contain the recital, “Roll of members called and a quorum found present.” (p. 476).</p> <p>6. City Council — Fraud..</p> <p>Fraud both lurks and deals in generalities, (p. 477).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by George H. Tompkins against the Pacific Mutual Life Insurance Company. Judgment for plaintiff. Defendant brings error.</p>

Action by A. W. Urpman against the Lowther Oil Company, and by the Lowther Oil Company against the Miller-Sibley Oil Company. Actions were consolidated. From the decree, Urpman and the Miller-Sibley Oil Company appeal.

<p>1. Summons — Suit.</p> <p>The issuance of a summons brings a suit into existence at its date. (p. 519).</p> <p>2. Suit — Equity—Summons—Infant.</p> <p>Where there are only two defendants to a bill in equity, one adult, the other infant, and after summons issued, though not served, the bill is filed in term, with the consent of the adult, and the court appoints a guardian ad litem for the infant, and his answer is filed, there is thus a cause for the action of the court and it has jurisdiction to decree upon the matter of the hill, and its decree is neither void nor erroneous for the mere cause of want of service of the summons, or that the bill was not filed at rules, (p. 519).</p> <p>3.Process — Infant—Guardian ad litem.</p> <p>There need not be service of process on an infant. The appointment of a guardian ad litem and his answer for the in-' fant stand in place of such service, (p. 519).</p> <p>4.Deed — Mistake—Equity.</p> <p>Equity will entertain a bill to reform a deed where it is alleged the scrivener has, by some mistake, so drafted it as to not execute the intention of the parties, (p. 519).</p> <p>5. Deed — Mistake.</p> <p>Generally, to warrant equity to reform a deed for mistake the mistake must be mutual; but where there are not two parties to the contract, and by mistake of the scrivener the instrument does not execute the purpose of the party executing, the deed, equity will reform the deed at his instance, (p. 520).</p> <p>6. Errok — Decree—Bar.</p> <p>A release of error in a decree will bar a bill of review to reverse it. (p. 521).</p> <p>7. Signature — Contract.</p> <p>If one sign a written contract without acquainting himself with its contents, he is estopped by his own negligence from asking relief against its obligation, if his- signature is procured without fraud. (p. 521).</p>

<p>1. Ejectment — Co-tenancy—Title.</p> <p>In an action of ejectment in wiiicli the question of co-tenancy is involved and evidence strongly tending to establish the same, it is error to instruct the jury “that if they believe from the evidence that the defendants were in possession of the land in controversy under a claim and color of title adverse to the title claimed by the plaintiff and exercising open, notorious, visible and exclusive possession of the said land claiming title to the extent of the boundary mentioned in the deed under which they claimed title exercising such acts of ownership and control over said land as residing upon it, clearing the land, and cultivating the land for more than ten years next before the commencement of this suit that then they should find for the defendants;” ignoring the question of co-tenancy and the bringing of knowledge of such adverse holding home to the plaintiff, (p. 527).</p> <p>2. Ejectment — Co-tenant—Declaration.</p> <p>Under section 9, chapter 90, Code, in an action of ejectement against a co-tenant having an equitable interest in the land in controversy, the legal title to the whole of the land being vested in the plaintiff, it is not necessary of proper that the declaration mention the equity in the defendant, that being a matter of defense, (p. 530).</p>

<p>1. Justice — Jurisdiction.</p> <p>A justice of the peace has jurisdiction to entertain an action against a county court for the recovery of money due on contract, when the demand may he sued upon, as provided in section 41, chapter 39, Code. (p. 533).</p>

<p>1. Declaration — Demurrer.</p> <p>W. H. B. filed liis declaration against N. H. S. & G. G. Co., for damages, alleging that defendant, N. H. S., by threatening to have R., the son of the plaintiff, arrested for a felony and have him sent to the penitentiary forced and induced plaintiff to release the levy of an execution on certain property of said R., who was plaintiff’s execution debtor and turn the property so released over to defendants, who took possession thereof; but failed to allege in the declaration on what felonious charge defendant S. claimed the said R. could be so arrested or prosecuted, and that R. was innocent of such charge. Held: Declaration bad on demurrer for want of such allegation, (p. 531).</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Petition by Wheeling and Elm Grove Bailroad against David T. Atkinson et ail. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Bill — Demurrer—¿aches.</p> <p>A bill is bad on demurrer when it appears therefrom that there have been unreasonable delay and laches on the part of the complainant in asserting the rights which are sought to be enforced, (p. 548).</p> <p>2. Laches.</p> <p>A court of equity will not assist one who has slept upon his rights and shows no excuse for his laches in asserting them, (p. 548).</p> <p>3. Married Womah — ■Laches.</p> <p>Under the Statutes of this State a married woman being authorized to act in respect to her separate estate as if she were unmarried, she is equally subject to the imputation and consequences of laches as if she. were feme sole. (p. 548).</p>

<p>1. Actions.</p> <p>Independent, inconsistent and repugnant causes of action sufficient in themselves separately cannot he joined together in the same bill in chancery, (p. 552).</p> <p>2. Building and Loan Co. — Action.</p> <p>If a borrower of a Building Association files a bill for the purpose of having his stock in such association treated as illegal and void and the loan made him as usurious, and to have his obligations to such association cancelled and annulled, and at the same time asks that he be treated as a shareholder with the privilege of calling upon the officers and managers of the association to account for the mismanagement of the association under its by-laws, and having its business finally wound up and its property distributed, such bill is multifarious for misjoinder of separate and distinct causes of suit inconsistent in their nature and will be dismissed, (p. 553).</p> <p>3. Debtor — Action.</p> <p>One who occupies the position of being a mere debtor of a building association cannot maintain a bill to wind up its affairs and distribute its assets, (p. 554).</p>

<p>1. Adultehy.</p> <p>Adultery or fornication is punishable only hy fine, and no imprisonment can he imposed, (p. 556).</p>

<p>1. Pleas.</p> <p>Pleas in abatement and bar may be filed at the same time. The pleas in abatement should he first tried; hut if the party filing them goes to trial on the merits under the pleas in har, without asking a trial on the pleas in abatement, he waives such pleas, (p. 558).</p> <p>2. Pike Insurance.</p> <p>A clause in a fire insurance policy called the “Iron Safe Clause,” that the insured make an inventory of his stock of goods and keep hooks correctly detailing purchases and cash and credit sales and keep them in an iron safe, or away from the store building when closed for business, is reasonable and valid. It is a promissory warranty, (p.559).</p> <p>3. Fire Insurance — Oral Evidence.</p> <p>In such “Iron Safe Clause” is a provision that non-compliance with it by the insured, shall forfeit the policy, and that ' agents of this company have no authority to waive these conditions”; no oral evidence is admissible of an oral waiver of such clause by a soliciting agent of the company before or at the time of the issuance of the policy, (p. 565).</p> <p>4. Orat, Evidence — Contracts.</p> <p>It is a fundamental rule in courts of law and equity that oral evidence of prior or contemporaneous oral agreement or conversation can not be received to vary or contradict a valid written contract, unless in cases of fraud or mutual mistake. This rule applies to policies of fire insurance, (p. 567).</p> <p>5. Demurrer.</p> <p>If a defendant, giving no evidence, moves the court to exclude the plaintiff’s evidence as not sufficieiu, to warrant a verdict for plaintiff, or to direct a verdict for him, and his-motion is overruled and this Court reverses the judgment for that cause, it will not remand the cause for anacer trial, but will enter judgment for the defendant, or, as it chooses, direct the circuit court to do so, unless satisfied that it will work injustice, (p. 567).</p> <p>6. New Trial — Judgment.</p> <p>If the Supreme Court holds that a verdict for the plaintiff is without sufficient evidence, or contrary to the evidence, and reverses the judgment for that cause, will it grant a new trial or enter judgment foiydefendant? (p. 568).</p>

<p>1. Indictment.</p> <p>An indictment under section 19 of chapter 32 of the Code, which, as a specificatian of the offense, alleges merely, that the defendant, “in the house and building in said county, knowingly and unlawfully permitted intoxicating liquors to be sold and vended contrary to law,” is insufficient, and should be quashed by the court on motion, (p. 592.)</p>

<p>1. Evidence.</p> <p>Evidence that' the defendant while confined- in jail had an opportunity to escape and declined to do so, is not admissible. (p. 611.) .</p> <p>-2. Tbiau — Prejudice—Appellate Court.</p> <p>Where a defendant has had a full, fair trial upon indictment for a felony, the appellate court will not reverse the judgment and set aside the verdict rendered after such trial, for ■an error in not enforcing a rule of practice in the trial of the case, when it clearly appears from the whole case that the ■rights of the defendant could not possibly have been prejudiced or effected thereby, (p. 612.) .</p>

<p>1. Indictment — Demurrer.</p> <p>An indictment charging the keeping a house of ill fame, in the language of the statute is sufficient on demurrer or motion to quash, (p. 615).</p> <p>2. Triad — Continuance.</p> <p>Where the trial court sees the only object for a continuance is matter of delay, the court commits no error in refusing to grant it. (p. 615).</p> <p>3. Trial — Conimuance. ■</p> <p>It is not error for the trial court to compel a defendant who is seeking a continuance for the purpose of delay to disclose what she expects to prove by an absent witness. (p. 615).</p> <p>4. Husband and Wife — Indictment.</p> <p>A husband and wife are equally guilty in keeping a bouse of ill fame in property used, occupied and controlled by them both, and in such cases she is not presumed to be acting under his coercion, (p. 615) .</p>

<p>1. Trial — Verdict—Prejudice.</p> <p>The allowance of a view by a jury is peculiarly within the discretion of the trial court, and its refusal will not he ground of reversal, unless it is clearly manifest that a view was necessary to a just verdict, and that its refusal operated to the injury of the party asking it. (p. 618).</p>

<p>1. Foeeign Accident Insurance Companies.</p> <p>A foreign accident insurance company is not required to comply with section 2, chapter 34 of the Code, and get its certificate to do business in this State from the Auditor, hut gets its certificate from the Secretary of State undes section 30, chcpter 34 of the Code, upon complying with the latter section. It is not required to file a writing accepting the provi-, sions of section 30 and agreeing to be governed thereby, (p. 620) .</p>