Volume 59 — West Virginia Reports

<p>1. Homicide — Evidence—Threats.</p> <p>On the trial of an indictment for murder, evidence of threats, made by the deceased or his co-conspirator, previously communicated to the accused, is competent and proper for the purpose of shedding- light upon the mental attitude of the prisoner toward the deceased at the time of the homicide, and of explaining the possession of the weapon with which the killing was effected, as tending to rebut any inference' of malice which might be drawn from the fact of its possession on the occasion of its use. (p. 8.)</p> <p>2. Homicide — Evidence— Threats— Conspiracy.</p> <p>When, in such case, there is evidence tending to establish a conspiracy on the part of the deceased, and other persons, to kill the accused, or do him grave bodily injury, and to show that the accused believed, and had reasonable ground to believe, that such conspiracy existed and the deceased was a party thereto, and the killing ensued, immediately after an unprovoked assault upon, and severe beating of, the accused, by such other persons, the deceased standing by at the time, and there being evidence tending to show that he joined in the assault, evidence of threats made by such other persons and communicated to the accused before the assault, is admissible. (p. 9.)</p> <p>3. CRIMINAL Haw — Instructions, Setting Forth Forms of Verdict.</p> <p>An instruction setting forth six forms of verdict, proper for findings on an indictment for murder, and telling the jury that, under the indictment, they can return any one of said verdicts, is defective in failing to direct the attention of the jury to the requirement that any verdict so returned must be based upon their belief from the evidence; but if it appears from other instructions given at the same time, that the attention of the jury was repeatedly directed to this requirement, the giving of such instruction is not error, (p. 15.)</p> <p>4. Criminal Law — Homicide—Instructions— Intent — -Deliberation.</p> <p>It is not.error to give, as an instruction to the jury in a criminal trial, the following legal proposition: “The court instructs the jury that to constitute a willful, deliberate and premeditated killing, constituting murder of the first degree, it is not necessary that an intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that said intention should come into existance for the first time at the time of such killing, or any time previous.’’ (p. 10.)</p> <p>5. Criminal Law — Homicide—Instructions—Degrees of Offense.</p> <p>On the trial of an indictment for murder, it is not error to give instructions, presenting the theories of guilt of murder of the first and second degrees, and directing the attention of the jury to the presumption of guilt, arising from certain facts, in case the jury should believe them to be established by the evidence, if there is any evidence tending, in any appreciable degree, to prove such offense, (p. 17.)</p> <p>6. Homicide — Instructions—Manslaughter.</p> <p>When the homicide, in respect to which the accused is on trial, immediately -followed an unprovoked assault upon, and severe beating of, him, and the evidence tends to prove the offense of manslaughter, the court may properly give instructions based upon the theory of guilt of murder, if there is any evidence in the case tending to prove the commission of such crime, (jd. 18.)</p> <p>7. Homicide — Instructions—Defenses—Accidental ISUinq.</p> <p>The defense of accidental and unintentional killing does not preclude the giving of instructions embodying the law relating to any offense charged in the indictment which the evidence tends to prove, (p. 18.)</p> <p>8. Instructions — Construction of as a Whole.</p> <p>To determine whether the trial court has erred in the giving of • instructions, all the instructions must be read together, and, if being so read and interpreted according to the plain common-sense meaning of the terms used, they state the law correctly as applied to the evidence, and it appears that the jury could not have been thereby mislead to the prejudice of the accused, the verdict will not be disturbed, because they disclose a mere technical conflict in terms, (p. 23.)</p> <p>9. Evidence — Refusal of Court to Permit Witness to Answer — Appeal.</p> <p>Refusal of- the court to permit a witness to answer a question which, by its own terms and subject matter, taken in connection with facts and circumstances, already in evidence, shows its relevancy and materiality, is not available as error on a motion for a new trial, if the expected answer of the witness was not disclosed to the court at the time of the ruling. An appellate court, in reviewing a judgment on writ of error, cannot assume, in such case, that an answer favorable to the exceptor would have been given. So much of the decision in Gunn v. Railroad Go., 36 W. Ya. 165, as conflicts with this principle, is disapproved, (p. 11.)</p> <p>10. Homicide — Manslaughter—Evidence—Killing in Seat of Blood.</p> <p>A sudden intentional killing with a deadly weapon, by one who is not in any way at fault, in immediate resentment of a gross provocation, is prima faeie a killing in heat of blood, and, therefore, an offense of no higher degree than voluntary manslaughter, (p. 21.)</p> <p>11. Homicide — Manslaughter—Evidence—Deliberation—Reversal.</p> <p>When in such case, the evidence discloses that no time intervened between the giving of the provocation and the act of killing, within which passion could have subsided 'and reason regained its dominion and the fatal act itself was not attended by circumstances of extreme cruelty and inhumanity, nor preceded by conduct from which malice can be inferred, a conviction of murder in the second degree should be set aside and a new trial allowed, (p. 21.)</p> <p>12. Obimihad Law — Motion for New Trial — Insufficiency of Evidence.</p> <p>A motion for a new trial based on alleged insufficiency of evidence, is an appeal from the jury to the court on a question of law. (P- 33.)</p> <p>13. Obiminal Law — Motion for New Trial — Insufficiency of Evidence— Functions of Gourt.</p> <p>In passing on such a motion, the court does not re-try the case on the evidence nor disturb any findings made by the jury on evidence sufficient in law to sustain them. It simply determines, whether, in law, the facts found, or which could have been found, constitute the right in action, or the offense charged, (p. 23,)</p> <p>14. Homicide — Malice—Question for Jury:</p> <p>In homicide cases, the question of malice is for the jury when there is sufficient evidence to sustain a finding of its existence. Whether there is any evidence of it is a question for the court in giving or refusing instructions. Whether there is sufficient evidence of it to sustain a verdict, is for the court on a motion for a new trial, (p. 27.)</p> <p>15. Homicide — Accidental Killing.</p> <p>In cases where the blow intended for one person by accident falls upon and kills another, the thing done follows the nature of the thing intended to be done, and the guilt or innocence of the- slayer depends upon the same considerations that would have governed had the blow killed the person against whom it was directed. Hence the homicide is murder, or manslaughter, or excusable homicide, for precisely the same reasons that would have determined its character had the event conformed to the intent, and the principle is the same whether the misadventure proceeded from the misdirection of the blow or from a mistake in the identity of the victim, (p. 30.)</p>

<p>1. COURTS otp Equity — Rescission of Contracts — Mistake—Fraud.</p> <p>Rescission of contracts, affecting any estate or interest in land, on tile ground of fraud in the procurement thereof, or mutual mistake of the parties in effecting the same, belongs to the exclusive jurisdiction of courts of equity, (p. 44.)</p> <p>2. RbsoissiON or Contracts — Remedy at Lam.</p> <p>Courts of law have jurisdiction and power to afford relief, in such cases by judgment for money or property, under some circumstances, when a right to rescind exists and has been properly claimed; but the remedy at law is incomplete and' inadequate, because of lack of power to effect a rescission by a direct adjudication thereof, (p. 44.)</p> <p>3. Oil and Gas — Oil Lease — Sale—Rescission.</p> <p>Owing to the peculiar nature of oil and gas, both the quantity and location of land covered by a lease thereof for oil and gas purposes, are elements going to the substance and essence of a contract of sale of such lease, obligating the vendee to develop the property by drilling a well thereon and deliver to the vendor part of the product thereof, free of cost or expense; and a gross misrepresentation, as to either, relied upon by the vendee, under the belief that it is true, is ground for rescission of the contract, (p. 39.)</p> <p>4. Rescission oe Contract — Recree.</p> <p>On rescinding a contract, the court should, by its decree, put the parties in statu quo, by requiring each to restore to the other what he obtained by virtue of the contract, (p. 41.)</p> <p>5. Rescission of Contract — Recovery of Consideration.</p> <p>Money paid, as rental to the land owner, for delay in drilling a well under a lease, held by assignment, in accordance with the terms of the lease, may be recovered back on rescission, when the</p> <p>' contract of sale does not bind the vendee to drill, but extends to him the right to pay such rental in lieu of drilling, (p. 41.)</p> <p>(Brannon, Judos, absent.)</p>

<p>1. Guaranty — Construction—Action against Guarantor.</p> <p>The following written guaranty made by J. H. B. to L. & B. Oo, for the benefit of his infant son H. B. viz: “For the purpose of enabling H. Bumgarner to purchase goods upon credit from Loverin & Browne Co., of Chicago, I hereby guarantee that said H. Bumgarner shall promptly pay them for all goods which they may hereafter sell to him upon credit until this guarantee is revoked. Said payment to be made within ten (10) days after receiving goods, my liability hereinunder shall cover any balance to become due not exceeding Five Hundred Dollars. Goods ordered under this Guarantee may be returned within ten days after receiving same at invoice price if goods are returned in good order properly packed. Dated Elizabeth, W. Ya., July 11th, 1903. J. H. Bumgarner. (Seal).1’ Held: to be a guaranty of payment absolute and unconditional, upon which a suit may be commenced against the guarantor without any previous suit against the principal, (p. 54.)</p> <p>2. GUARANTY — Time of Payment — Breach.</p> <p>When the terms of a guaranty of payment fix the time within which the payment shall be made, if the payment is not made within the time prescribed there is a breach of the guaranty and no steps need be taken against the principal, nor need his insolvency be shown in order to charge the guarantor, (p. 52.)</p> <p>3. Evidence — Letters—Genuineness.</p> <p>The genuineness of a letter is sufficiently established to permit its introduction in evidence when it is shown that it was received in due course of mail in response to a letter sent to the supposed writer, (p. 61.)</p> <p>4. Evidence — Letters, Copy of.</p> <p>And, upon notice having been given to such writer to produce the original of the letter to which his was a reply and his failure to produce such original, a letter press copy thereof is admissible in evidence, (p. 61.)</p> <p>5. Evidence — Harmless Error.</p> <p>The admission of incompetent evidence over objection will not reverse a judgment when it is clear that such error could have worked no prejudice to the exceptor, (p. 63.)</p> <p>6. Syllabus Approved — Pleading—Denial—Affidavit.</p> <p>Syllabus point 4, Dix v. Robinson, 18 W. Va. 528, and point 1 syllabus, Maxwell v. Burbridge, 44 W. Ya. 248, approved, (p. 64.)</p>

Bills by Alice C. Day against H. H. Fay and others and by the State against Alice C. Day and others. Decree for Alice C. Day against A. G. Williams, and bill by the State dismissed; and the State and said Wliliams appeal.

<p>1. Bills and Notes — Presentation of OheeJes — Diligence.</p> <p>A person receiving a check, on a fund in the hands of a hank, for the amount of a demand against the drawer thereof, is bound to exercise reasonable diligence in making presentment thereof for payment, if he wishes to avoid risk of loss by insolvency of the drawee, (p. 79, 80.)</p> <p>2. Same — Time f or Presenting.</p> <p>If the payee of the check and the drawee reside, or have their places of business,[in the same city or town, presentment must be made before the expiration of business hours of the day next after the day of the receipt thereof, (p. 81.)</p> <p>3. Same — Forwarding by Mail.</p> <p>If the person receiving a check and the bank on which it is drawn are in different places, it must be forwarded, for presentment, by mail or other usual mode of transmission, on the next day after the receipt thereof at the place in which the payee resides or does business, if reasonably and conveniently practicable; and, if it is not so practicable, then by the next mail or other similar means of conveyance, leaving after said date. (P- 81.)</p> <p>4. Same.</p> <p>Neither payee nor his agent is required to transmit such check by the only, or last, mail of the day next after its receipt, if such mail closes or departs at an hour so early as to render it inconvenient for the holder to avail himself of it. (p. 85.)</p> <p>5. Same.</p> <p>What is an unreasonably early hour in such case, depends upon all the circumstances of the transaction and situation of the parties; and, the facts being free from controversy and doubt, is a question of law for the court, (p. 85.)</p> <p>■6. Same — Collection through Bank.</p> <p>In the absence of any agreement to the contrary, and of any circumstance, known to the payee, making it imprudent to do so, he may endorse and deliver the check to a bank for collection; but this does not extend the time within which it must be forwarded for presentment. The bank, however, in such case, is not required to forward it on the next day after its receipt by the payee, if there be no reasonably convenient means of doing so, within the banking hours of that day. (p. 85.)</p> <p>7. Same — Judicial Cognizance of Existence of Banks.</p> <p>Though the courts of this State cannot have judicial knowledge of the existence of any particular bank, or of any mode of business peculiar to a given bank, they will take judicial notice that, in all cities and towns of large population and extensive business, within their jurisdiction, banks exist, and of the fact that their operations are governed by reasonable rules and regulations, to which parties dealing with them, or in commercial paper, are deemed to have subjected themselves, (p. 87.)</p> <p>■8. Same.</p> <p>Courts cannot take judicial notice of the business hours of any particular bank, but the courts of this State judicially know that ordinarily banks in the cities and larger towns of the State do not open their doors for business at an earlier hour than 9 o’clock a. m. (p. 88.)</p> <p>. '9. Bills and Notes — Presentation of Check.</p> <p>The parties to a check drawn on a bank and sent to a distant place to be forwarded for presentation, are deemed in law to have acted with knowledge of the usual diligent method of making such presentment through a bank at the place to which it is sent, and to have agreed to suffer any reasonable delay incident to such mode of presentment, (p. 88.)</p> <p>10. Same — Liability of Drawer of Oheah.</p> <p>In such case, the drawer, by allowing his funds to remain in the drawee bank, and the payee, by accepting the check, evince belief in the solvency of the bank; and the former voluntarily takes the risk of its solvency during the reasonable period necessary for presentment of the checkin the usual manner, (p. 88.)</p> <p>11. Same.</p> <p>The drawer, in delivering a check to an agent of the payee, having no authority to endorse it, at the place of business of the drawer, impliedly agrees to allow such additional time for presentment as may be necessary for the transmission of the check to the principal of the agent, (p. 88.)</p> <p>12. Same.</p> <p>. Failure to present a check does not bar recovery from the drawer, if the time intervening between delivery thereof and the failure of the bank, is not sufficient for presentment by the exercise of such diligence as the law requires, (p. 88.)</p> <p>13. Appeal — Reversible Error — Instructions—Evidence.</p> <p>It is reversible error to give an instruction, presenting an hypothesis which has no foundation in the evidence adduced, unless the court can clearly see that it did not prejudice the exceptor, (p. 90.)</p> <p>14. Teial — Offer of Evidence — Rejection.</p> <p>An offer of evidence, not appearing in any way to be relevant and material, is properly rejected, (p. 90.)</p>

<p>1. Deeds — Description—Certainty.</p> <p>A deed granting to a railroad company land for its right of way must contain on its face a description of the land in itself certain, so as to be identified, or if not in itself so certain, it must give such description as, with the aid of evidence outside the deed, not contradicting it, will identify and locate the land, otherwise the deed is void for uncertainty, (p. 93.)</p> <p>2. VENDOR and Vendee — Executory Contract — Price—Interest.</p> <p>A vendor selling land by executory contract stipulating that he must make a deed, and that the first payment of purchase money shall be made when he shall make a deed, and who delivers to the purchaser possession at the date of the conti'act, is entitled to interest on the whole purchase money, though the vendor be in default in making the deed, unless the purchaser set apart the purchase money for the vendor, and notify the vendor of his readiness to pay,’ and do not himself use the money, (p. 96.)</p>

<p>1. TRUSTS' — Resulting Trusts.</p> <p>One taking a deed for land knowing that another has a valid equitable title to the same land from the same vendor is held in equity as holding the legal title in trust for the benefit of the first purchaser, and equity will compel him to pass the legal title to such first purchaser, (p. 109.)</p> <p>2. Specific Performance — Oral Contract as to Land.</p> <p>An oral contract by a father to convey land to his son in consideration that he shall support the father, is not enforceable in equity, unless the possession has been transferred to the son under the contract, (p. 110.)</p> <p>3. Deed — Delmery.</p> <p>Though the grantor tender to the grantee a deed with intent to deliver it, yet if the grantee refuse to accept it, it is not a perfected deed, and passes no title, (p. 111.)</p>

<p>1. Ejectment — Bight of Recovery.</p> <p>A plaintiff in ej ectment must locate his own land and recover upon his own title, and the fact that the defendant’s land does not cover the land in dispute or lie where the defendant claims it to lie, or that his title is not good, is immaterial and irrelevant, (p. 115.)</p> <p>2. Adverse Possession — Color of Title — Evidence—Commissioner’s Deed.</p> <p>A deed from a special commissioner purporting to be made under authority of a decree is admissible in evidence to give color of title for adverse possession, though such decree is not shown, (p. 116.)</p> <p>3. Evidence — Statement of Third Person.</p> <p>Statements by a person cutting timber on land or cultivating it, that he is so doing under authority of a certain person as owner, made while so doing, are admissible when the question of possession by such owner is involved, (p. 118.)</p> <p>4. Ejectment — Judgment, effect of.</p> <p>A verdict and judgment in ejectment by which the plaintiff recovers land in fee, of their own force, vests title in him, and take title, from the defendant, if he had any. (p. 118.)</p> <p>5. Same — Boundary Lines.</p> <p>A verdict and judgment in ejectment fixing a line are final and conclusive between the parties and their privies in estate as to the location of such line. (p. 119.)</p> <p>6. Same — Judgment, effect of — Adverse Possession.</p> <p>A verdict and judgment in ejectment by which the plaintiff recovers the contested land destroy all title in the defendant at the date of the judgment. The defendant, by adverse possession .beginning after judgment, may acquire title, but possession prior to the judgment cannot be considered, (p. 120.)</p> <p>7. Boundaries — Agreed Line— Validity of Agreement.</p> <p>To make valid an oral agreement to fix a line between two contiguous tracts of land there must be doubt and uncertainty as to the true place of the line, else the agreement is void, Where there is in fact, such doubt and uncertainty, such oral agreement, if at once carried into execution by actual possession, is valid without other consideration than the settlement of disputed boundary, (p. 122.)</p> <p>8. Same — Possession.</p> <p>A mutual express agreement between adjoining owners fixing their dividing line is of no force, unless actually executed immediately by taking possession actual up to it. (p. 122.)</p> <p>9. Compromise — Offer—Effect.</p> <p>A person, is not, bound by an admission in an offer to compromise not accepted by the other party, (p. 123.)</p> <p>10. Evidence — Admissions as to Title.</p> <p>Where legal title to land is vested in one his mere oral disclaimer or admission of no title cannot devest his title. It binds him not. (p. 123.)</p> <p>11. Boundaries — Possession—Establishment of Boundary by Acquiescence,</p> <p>To establish aline between adjoining owners, in absence of express agreement fixing it, by acquiescence and recognition, there must be possession actual up to it by the party claiming the benefit of the line at least for a time prescribed by the statute of limitation, with acquiescence and recognition of such line by the other party, he knowing of such claim by his adversary, (p. 124.)</p> <p>12. Adverse Possession.</p> <p>Mere occasional grazing cattle or cutting timber or sod on land does not constitute adverse possession under the statute of limitations, (p. 124.)</p> <p>13. Same — Inclosure.</p> <p>Actual inclosure by fence is not indispensable for adverse possession under the statute of limitations. It is sufficient if the possession be marked or held by inclosure by fence, by cultivation, residence, clearing, or any plainljr visible and notorious manifestation of sole, exclusive possession, according to the nature of the case. tp. 126.)</p> <p>14. Same — Golor of Title — Possession.</p> <p>Where there is no color of title, possession, for the purpose of adverse possession, is confined to the land in actual, open, notorious, exclusive occupation by inclosure by fences, residence, clearing, cultivation or such other act, notorious and open, according to the nature of the case, telling the world of adverse possession under his own claim, (p. 128.)</p>

<p>1. Infants — Lands—Sale of Timber — Decree—Pleading.</p> <p>In a summary proceeding under chapter 83 of the Code for the sale of the. timber on the land of an infant and sale thereof made upon a written proposition for purchase and under direction and decree of the court and duly confirmed; decrees, entered therein granting abatement to the assignee of the purchaser of a part of the purchase money and extending the time beyond that fixed in the contract of sale for the removal of the timber from the land, which decrees are based upon no pleadings in writing, but alone upon the mere oral representations and motion of the assignee of the purchaser of the timber, are void. (p. 133.)</p> <p>2. Judgment — Decree—Pleading.</p> <p>A decree not supported by any pleading in writing, is void. (p. 333.)</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by H. C. Harvey, executor, against M. B. Ryan and others. Decree for defendants and plaintiff appeals.</p>

<p>1. Appeal. — Procedure.—Review.</p> <p>This Court exercises its appellate jurisdiction by appellate process only, and where no such process has been allowed, this Court is. without power to review for error, (p. 148.)</p> <p>2. Appeal. — Dismissal.</p> <p>A case in which the appeal allowed must be dismissed as improvidently awarded because not allowed from any order or decree in the cause, (p. 148.)</p>

<p>1. ADVERSE POSSESSION — Junior Patent — Interlock—Actual Possession.</p> <p>The actual possession of the owner of a tract of land, lying adjacent to another tract of uncleared land, the title to which is vested in another person by a grant from the State, is not extended over a portion of such other tract by the acquisition of a junior patent, covering such portion and purporting to vest title thereto in the owner of such first mentioned tract, however long such possession may continue. To work an ouster of the elder patentee and hold adversely to him, the junior patentee must take actual possession of some part of the land included in the junior patent and within the boundaries of the senior patent, (p. 160.)</p> <p>2. Unlawful Detainer — Lease—Color of Title — Possession.</p> <p>For evidential purposes in an action of unlawful entry and detainer between the owner, or a claimant under color of title, of a large tract of land and another person, possession of a small portion of such tract by a tenant of such owner ,or claimant, under a lease restricting the right of occupancy and use of the land by the tenant to such small portion, is, in legal effect, possession by the owner or claimant of so much of the entire tract as is not in the actual, hostile possession of some other person, (p. 163. J</p> <p>3. Unlawful Detainer — Evidence.</p> <p>In an action of unlawful entry and detainer, it is not reversible error to refuse to allow the introduction, by the defendant, of a deed or contract showing he does not own, and is not in possession of, a portion of the land sued for. (p. 164.)</p>

<p>1. MrsrES and Minerals — Deed to Oil — Exception in Deed.</p> <p>A deed conveys oil in land “excepta well now producing oil. ” That well ceasing to produce oil is deepened by the lessee to a different sand rock, and produces oil from it. The exception excepts from the operation of the deed the oil produced from the lower sand rock. (p. 167.)</p> <p>(Cox, Judge, Absent.)</p>

<p>1. Cancellation oe INSTRUMENTS — Evidence.</p> <p>To cancel a note and deed of trust to secure it on the claim that they were given for a contemplated loan, and that the loan was never made, the oral proof must he very full, clear and convincing, (p. 173.)</p> <p>3. Witness — Deceased Person — Agent.</p> <p>An agent contracting in behalf of his principal with a person since deceased is a competent witness in behalf of his principal against the estate of the deceased party to prove the transaction, (p. 174.)</p>

<p>1 Homicide — Evidence—Declaration of Decedent.</p> <p>In a trial for murder, the uncommunicated declaration of the deceased of his purpose to have illicit intercourse with the daughter of the defendant, which he declared he could do ‘ ‘if he could get the old man drunlc,” is not admissible in evidence, (p. 177.)</p> <p>2. Same — Defenses—Burden of Proof.</p> <p>In the trial of an indictment for murder, if the homicide is proven to have been committed by the defendant then the presumption of murder in the second degree arises against the defendant and the burden of proof rests upon him to make such defense as will reduce the crime below such degree, or as will justify the act, and such defense may'be found in the evidence adduced by the state and that of the defendant and all the circumstances of the case. (p. 179.)</p> <p>3. WITNESSES — Credibility—Instructions.</p> <p>Where a witness in a trial of a case makes statements in material matters touching the issue inconsistent with former statements made by him concerning the same matters, the party against whom such witness testifies is entitled to have the jury instructed that if they believe from the evidence in the case that the witness made inconsistent and contrary statements concerning such matters, then the jury has the right to disregard the whole testimony of such witness, or give it such weight as to which they think it is entitled. (p. 183.)</p> <p>4. OeiminaIí Law — Circumstantial Evidence.</p> <p>Syllabus, points 3, 4 and 5, State v. Flanagan, 26 W. Va. 116, approved and applied, (p. 184.)</p>

<p>Error to Circuit Court, "Webster County.</p> <p>Action by the State against C. P. Dorr and P. M. Mc-Elwain. Judgment, for defendants, and plaintiff brings error.</p>

<p>1. Homicide — Self-Defense—Burden of Proof.</p> <p>Upon a trial for murder, where the killing is admitted, and the defendant relies upon self-defense, the burden is upon him to establish such defense to the satisfaction of the jury. (p. 199.)</p> <p>2. Same.</p> <p>Where, upon a trial for murder, the evidence introduced by the state to establish the homicide, tends to show extenuating circumstances, this does not relieve the defendant of the burden of establishing self-defense, if it is relied on, to the satisfaction of the jury; but the circumstances so shown are proper to be considered by the jury in arriving at their verdict, (p. 199.)</p> <p>3. Same — Intoxication as Defense.</p> <p>Upon a trial for murder, it is not error to refuse to instruct the jury that if they believe the prisoner, at the time of the killing, was so intoxicated as to be incapable of deliberation and premeditation, lie should not be found guilty of murder in the first degree, where there is evidence tending to show that the defendant had previously designed the killing, and became voluntarily intoxicated for the purpose of committing the offense. The instruction should also present this theory to the jury. (p. 200.)</p> <p>4. Omminal Law — Instructions.</p> <p>Where the" jury are instructed upon the law relating to a particular subject, it is not error to refuse to give other instructions to the same effect, as the court need not repeat instructions already substantially given, (p. 202.)</p> <p>5. Homicide — Appeal—llevieto.</p> <p>It is peculiarly within the province of the jury to weigh the evidence upon the question of self defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence, (p. 204.)</p>

<p>Error to County Court, Tyler County.</p> <p>Action by Albert H. Smith against the South Penn Oil Co. Judgment for plaintiff, and defendant brings error.</p>

Suit by Wm. M. Burklieimer, Jr., against The National Mutual Building and Loan Association of New York et al. From a decree fixing the amount owing from the plaintiff to defendant Building and Loan Association, said association appeals.

<p>1. Equity — Bill of Review — Depositions.</p> <p>Upon a bill of review for error of law depositions cannot be considered, (p. 229.)</p> <p>2. Sake — Pendency of Appeal.</p> <p>A bill of review for error of law cannot be maintained while an .appeal is pending in the Supreme Oourt of Appeals, (p. 230.)</p> <p>3. Appeal — Dismissal—Time of Dismissal.</p> <p>When an appeal is dismissed by an order of the Supreme Oourt of Appeals, it stands dismissed and ended on the actual date of such order, and does not continue.to exist as an appeal to the end of the term of the Supreme Oourt of Appeals, (p. 231.)</p> <p>4. Stay oe Pboceedings — Discretion of Court — Pendency of Other Suit.</p> <p>A stay of proceedings in a suit provided by section 6, chapter 136, Code, rests in the sound discretion of the court. To warrant the stay it must be essential to justice, and it must be that the judgment of decree by the other court will have legal operation and effect in the suit in which the stay is asked, and settle the matter of controversy in it. (p. 233.)</p> <p>5. Equity — Bill of Review —JTewly Discovered JSvidence.</p> <p>A decree of the Supreme Court reversing, for error of law, a decree under which land is sold, is not newly discovered evidence for a bill of review to reverse a later decree of a circuit court dismissing a bill filed to set aside a deed made to the purchaser under such decree of sale by the former owner of the land after the sale and its confirmation, (p. 235.)</p> <p>6. Sake.</p> <p>The reversal by the supreme court is not newly discovered evidence or matter for a bill of review to reverse a decree of a circuit court made before such reversal, (p. 236.)</p> <p>7. Deeds — Cancellation.</p> <p>Will a decree of the Supreme Oourt of Appeals reversing a decree of sale of land be alone ground for a bill to cancel a deed made to the purchaser under the decree by the debtor and owner of the land before reversal, when there is no other consideration for such deed than such decree of sale and purchase under it? (p. 237.)</p> <p>8. Vbndob and Vendee — Purchaser—Judicial .Sale.</p> <p>Where a party to a suit interested in a decree for sale of a debt- or’s land by having a debt decreed him against the land is the purchaser under the decree of sale, and he then conveys the land, after confirmation of the sale and before a bill of review or appeal to reverse the decree of sale, to a bona fide purchaser for valuable ^consideration without notice actual of error in the decree, such purchaser’s title is not affected by a reversal of the decree of sale on bill of review or appeal, (p. 238.)</p> <p>9. Lis Pendens — Bill of Review.</p> <p>A suit as a Us pendens ends with a final decree. A bill of review or appeal to reverse such decree 'is a new Ms pendens, as regards purchasers claiming title under the decree, and is not a mere continuation of the original suit. (p. 239.)</p> <p>10. Cancellation or Instruments — Purchaser for Value.</p> <p>A decree of cancellation of a deed for land for fraud, or duress, or want of consideration, cannot be made against a purchaser for valuable consideration without notice of the facts tainting the deed with fraud, duress or want of consideration, (p. 248.)</p> <p>11. Deeds — Grounds of Invalidity — -Fraud—Duress.</p> <p>A threat by one having good title to land and entitled to possession as purchaser under a decree of sale, as against the debtor occupying the land, to eject such occupant by process under the decree of confirmation of sale does not constitute fraud or duress to set aside a deed made by such occupant to said owner, (p. 249.)</p> <p>12. Vendor and Vendee— Bona Fide Purchaser.</p> <p>One claiming land under either a quit-claim deed or a deed with covenant of special warranty may make the defense of a purchaser for valuable consideration without notice, (p. 249.)</p> <p>13. Deeds — Form—'Interest Conveyed.</p> <p>A deed of the form prescribed by section 1, chapter 72, Code, containing the words “do grant,” though it contain a covenant of only special warranty, will pass the very land itself, and all estate, right, title and interest of the grantor therein. (p. 250.)</p> <p>14. Deeds — Setting Aside Deeds — Laches.</p> <p>To set aside a deed for fraud suit must be brought in a reasonable time, a time reasonable under circumstances of the particular case. Delay, especially where it affects third persons, will bar relief, (p. 259.)</p>

<p>1. JiIasteb and Servant — Enticing Servant.</p> <p>One who maliciously entices a servant in actual service of a master to desert and quit his service is liable to action therefor, (p. 254.)</p> <p>2. Same — Liabilities.</p> <p>If one wantonly and maliciously, whether for his own benefit or not, induces a person to violate his contract with a third person to the injury of that third person, it is ' actionable, (p. 254.)</p> <p>3. Same.</p> <p>Persons who conspire to induce others to break a valid contract between other persons are liable to action therefor, (p. 259.)</p> <p>4. Same.</p> <p>The act found in Code of 1899, section 14, appendix, p. 1053, does not authorize any individual, or number of individuals, to maliciously entice servants to desert service in which they are engaged, or to prevent them from engaging in such service under a contract for such service, (p. 262.)</p>

<p>1. TAXATION — Sale by State — Redemption—Contest.</p> <p>In a suit by the State to sell land as forfeited in the name of a certain owner, if another adverse claimant resists redemption aslted by the owner of the forfeited land, on the ground that it is within his land, held under an older grant from the State, the burden of proof rests on such contestant of redemption to prove that the land of the person asking redemption lies within the bounds of his land. (p. 264.)</p>

<p>1. . Trial — Striking Out Evidence.</p> <p>A motion to exclude all the plaintiff’s evidence introduced upon the trial of an action should be sustained, when such evidence is insufficient to sustain a verdict in favor of the plaintiff, notwithstanding there is a scintilla of evidence supporting the plaintiff’s case. (p. 267.)</p> <p>2. PiiysiciaNS and Surgeons — Malpractice—Burden of Proof.</p> <p>In an action for damages against a physician, for negligence and want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill, resulting in-injury to the plaintiff, (p. 270.)</p> <p>3. Same — Degree of Skill Bequwed.</p> <p>A physician is not required to exercise the highest degree of skill and diligence possible, in the. treatment of an injury or disease, unless he has by special contract agreed to do so. In the absence of such special contract, he is only required to exercise such reasonable and ordinary skill and diligence as are ordinarily exercised by the average of the members of the profession in good standing, in-similar localities and in the same general line of practice, regard being had to the state of medical science at the time. (p. 273.)</p> <p>4. Same.</p> <p>A iihysician does not warrant or insure that his treatment will be successful, in the absence of special contract to that effect, (p. 270.)</p> <p>5. Same — Failure to Gufe.</p> <p>Failure on the part of a physician to effect a cure does not, alone,, establish, or raise a presumption qf, want of skill, or negligence, on his part. (p. 273.)</p> <p>6.- Same — Mistake in Judgmeat.</p> <p>Where a physician exercises ordinary skill and diligence, keeping within recognized and approved methods, he is not liable for the result of a mere mistake of judgment, (p. 273.)</p> <p>7. Same.</p> <p>A physician is liable for the result of an error of judgment, where - such error is so gross as to bo inconsistent with that degree of skill which it is the duty of a physician to possess, (p. 273.)</p>

<p>1. Appeal — Decision.</p> <p>In determining- whether a matter is res judicata by a decision of an appellate court, when the order entered reverses a decree of the trial court, and remands the cause for further proceedings, according to directions given in the written opinion, filed at the time of the rendition of the decision, the opinion and record, as well as the order, are tobe considered; and, if it appears, from the record, that the parties between whom it is claimed there was an adjudication, were before the court, and the subject matter of the alleged adjudication brought into the suit, by pleadings relating thereto, and, from the opinion and order, that the matter was expressly decided, the parties are concluded by the decision in all further proceedings in the cause in the court below, as well as in all collateral proceedings, although the pleadings in the cause, viewed from the standpoint of a demurrant thereto, were insufficient, (p. 281.)</p> <p>2. Same — Extent of Decision.</p> <p>Not only all matters that were actually litigated, but also all others that the parties were bound, by the state of the pleadings, to assert, by way of defense to, or in support of, the demand or demands set up in a cause, are res judicata by the decision rendered therein, (p. 285.)</p> <p>3. Judgment — Bes Judicata — Parties—Lis Pendens.</p> <p>Except in pure proceedings in rem nothing is res judicata by a decision as to persons who are not parties to the cause in which it was rendered; but the status of the property involved therein may have been so affected, by the pendency of the suit, as to have rendered it insusceptible of valid purchase or acquisition by strangers thereto, while the cause was pending or after decision,’ as against one who was a party to it. (p. 286.)</p> <p>4. Lis Pendens — Extent of Buie.</p> <p>The rule Us pendens extends to non-negotiable choses in action and funds, for the subjection of which to the payment of a debt, a suit in equity has been instituted to set aside assignments thereof, as having been made in fraud of the plaintiff’s rights, (p. 284.)</p> <p>5. FRAUDULENT Conveyance — Assignment of Fund — Answer.</p> <p>The answer of an assignee to -a bill, attacking an assignment of a fund, as having been fraudulently made, must deny notice of fraudulent intent of the assignor, as well as fraudulent intent on the part of the assignee. Failure to deny it is equivalent, in legal effect, to an admission of the truth of the allegation of notice, (p. 289.)</p> <p>6. Same — General Denial — Effect.</p> <p>The answer of an assignee, responding to a bill charging fraud in the assignment, specifically denies the fraudulent intent imputed to him by the allegations of the bill, says nothing as to the fraudulent intent imputed to his assignor, is silent as to the allegation of notice of the fraud of the latter, and denies generally each and every charge or intimation of fraud charged against respondent in plaintiff’s original and amended bills; and there is no exception to said answer. Held, the general denial is insufficient to negative fraudulent intent of the assignor and notice thereof to the assignee, (p. 289.)</p> <p>7. Same — Bona Vide Purchaser.</p> <p>One who claims title to property or a fund as a Iona fide purchaser without notice must allege, not only that he is a purchaser for value, but also that he had no notice of the fraudulent intent of his vendor or his assignor. It requires both payment of adequate consideration and want of notice of fraud to make out a title in such case. (p. 290.)</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Bill by B. E. L. Snodgrass against A. B. Jolliff and others. Decree for plaintiff and defendants appeal.</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Bill by Mary A. Tahaney against the Washington National Building' & Loan Association and others. Decree for complainant, and defendant loan association appeals.</p>

<p>1.Negliuebtce — Persons Liable- — Acts of Independent Contractors.</p> <p>Where one, for a stipulated price per piece, contracts to procure timbers for a mining company for use in its mine, from the lease of the company, and the company retains no supervision of the ■work, or control of the manner of doing it, and the contractor is responsible to it only to the extent of procuring satisfactory timber and delivering it at such times and places as needed, and employs and pays his own help in doing so, such contractor exercises an in-dependant employment, and the company is not liable to one in its employ who is injured by the contractor in negligently prosecuting his work. (p. 304.)</p> <p>2. Same.</p> <p>Where a competent and fit person renders services in the course of an occupation, representing the will of his employer only .as to the result of his work, and not as to the means of its accomplishment, such work not being in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual dangers when being prosecuted in the usual and ordinary manner, such person exercises an independent employment, and the person so employing him is not liable for wrongs committed by him, his agents or servants in the prosecution of such work. (p. 305.)</p> <p>3. Same — Independent Contractor — Question for 'Jury.</p> <p>Where, from the evidence, it is to be determined whether or not one is an independent contractor, and the evidence is so conflicting as to support a finding of the jury, then it is purely a question for their determination, but if the evidence is without conflict, it then becomes a question of-law as to whether or not an independent employment has been established, (p. 303.)</p> <p>4. Appeal — Reversal—Insufficiency of Evidence — Rendering Judgment.</p> <p>Where a motion is made to exclude the plaintiff’s evidence because not sufficient to support a verdict in his favor, and the motion is overruled, and this Court reverses the judgment because of the insufficiency thereof, it will enter judgment for the defendant without remanding the cause, although the defendant introduces his evidence, where such evidence, taken in connection with that of the plaintiff, does not support the verdict, and where it does not appearthat-injustice will result from so doing, (p. 312.)</p> <p>5. Same.</p> <p>Where, at the conclusion of the evidence, the defendant asks for a peremptory instruction, directing a verdict in its favor, which the court refuses to give, and this Court reverses the judgment because the evidence is not sufficient to support the verdict, or because the verdict is contrary to the evidence, judgment will be entered by this Court for the defendant, without remanding the cause, unless satisfied that such course would be unjust, (p. 314.)</p>

<p>Error to Circuit Court, Clay County.</p> <p>Sarah Ann Legg was convicted of murder and brings, error.</p>

<p>1. Intoxicating Liquoiis — Illegal Sale — Indictment.</p> <p>In an indictment under sections 16 and 17, chapter 32, Code 1899, for selling- intoxicating drinlcs to a minor, it is not sufficient to charge that the sale was made by a certain named person for the defendant. The indictment should charge that the sale was made by the defendant, (p. 332.)</p>

<p>1. Equity — Pleading.</p> <p>A pleading in equity is taken to be -what it is in substance, regardless of its form, or the name given to it by the pleader, (p. 337.)</p> <p>2. Action — Commencement of Suit.</p> <p>A suit in equity is commenced at the time process to answer the plaintiff’s bill is issued, although the bill be not then filed. The bill, when filed, relates back to the time the process was issued, (p. 337.)</p> <p>3. Taxation — Tax Sale — Suit to Set Aside — Burden of Proof.</p> <p>Where the validity of a sale of land for delinquent taxes is attacked by proper suit in equity to set the sale aside, before deed to the purchaser is made and recorded, for material irregularities and failures to comply with material provisions of the statutes in relation to the proceedings leading up to and including the sale, and the existence of such irregularities and failures is put in issue between the plaintiff and such purchaser, a defendant, by proper pleadings in the cause, the burden is on such purchaser claiming under the tax sale to show substantial compliance with all the material provisions of the statutes in relation to the proceedings lead ing up to and including the sale. (p. 338.)</p> <p>4. Same.</p> <p>The rule above stated is not changed by the fact that a deed to such purchaser is recorded pending the suit. (p. 338.)</p>

<p>1. Ejectment — Title to Maintain,</p> <p>In ejectment, the plaintiff must establish title to the identical land which he seeks to recover from the defendant. The defendant’s possession thereof will be deemed to be • lawful until the contrary appears, (p. 342.)</p> <p>2. Same — Burden of Proof — Location of Boundaries.</p> <p>Where the plaintiff in ejectment claims under a grant of all the land within a given boundary, excluding certain parcels embraced therein, the burden is on,the plaintiff to locate the outer boundary of his grant and the boundaries of the parcels excluded therefrom, and to show that the land he seeks to recover from the defendant is within the outer boundary of the plaintiff’s grant and without the boundaries of the excluded parcels. (p. 342.)</p>

<p>1. CORPORATIONS — Sale of Realty — Validity.</p> <p>A corporation, duly incorporated under the provisions of chapter 55 of the Code, may sell real estate owned and held by it in its corporate name, without resort to a court proceeding under section 9 of chapter 57 of the Code. (p. 346.)</p> <p>2. Same — Deed—Validity.</p> <p>A deed, which is not ultra Hires as to a corporation, and which is executed in its corporate name and under its corporate seal, by its proper officers, and duly delivered, carries with it the presumption of authority in such officers to execute it and affix thereto the seal of the corporation, (p. 347.)</p> <p>3. Deeds — Fraud—Evidence.</p> <p>When actual fraud is relied on to set aside a deed, the fraud must be clearly proved. This may be done by direct or by circumstantial evidence, or by both. (p. 348.)</p> <p>4. Fraud — Evidence.</p> <p>Actual fraud cannot be established alone by proof of circumstances raising' only a suspicion of fraud, but the evidence an'd circumstances must be of such character as to clearly establish such fraud, (p. 350.)</p> <p>5. Contracts — Cancellation—Inadequacy of Consideration.</p> <p>Where parties, competent to contract, enter into a contract, it will not be set aside in a court of equity on the ground of inadequacy of consideration, unless the inadequacy be so gross as to shock the conscience and to amount to proof of fraud. Courts of equity, as well as courts of law, act upon the ground that every person who is not, from his peculiar condition of circumstances, under disability, if entitled to dispose of his property in such manner and upon such terms as he pleases; and whether his bargains are wise, discreet and profitable, or otherwise, are considerations not for courts of justice, but for the party himself, to deliberate upon. (p. 350.)</p> <p>6. Fraud — Evidence—Inadequate Consideration.</p> <p>Inadequacy of consideration, although not so gross as to shock the conscience and amount to proof of fraud, may nevertheless be considered with other evidence or circumstances in determining the question of fraud, (p. 351.)</p>

<p>1. Partition — Sale—When Decreed.</p> <p>A sale of real estate in a partition suit cannot be decreed, unless it affirmatively appears in the record that partition cannot be conveniently made and that the interests of the parties entitled to such real estate will be promoted by a sale thereof, (p. 356.)</p> <p>2. Equity — Evidence—Em Parte Affidavit.</p> <p>An ex parte affidavit offered by one party cannot, over the objection of the adverse party, be considered by the court upon the hearing of a chancery cause upon its merits, in the determination of the issues raised by the pleadings, where there has been no previous consent that such affidavit may be so considered, and no consent to, or waiver of notice of, the taking of such affidavit, (p. 356.)</p> <p>3. Samb — Consent Decree.</p> <p>A draft of a consent decree, agreed to and signed out of court by the parties to a pending cause, cannot be entered as a consent decree, if at the time such draft is offered for entry consent thereto is withdrawn, and its entry is objected to by one of the parties who signed it and who will be materially affected thereby, (p. 358.)</p>

<p>1. Tkial — Directing Verdict.</p> <p>Where a case depends on the weight of evidence and deductions from it, and conflicting evidence and credit of witnesses, the court should not instruct a verdict, (p. 362.)</p>

<p>1. Appeal — Interlocutory Decree — Matters Beviewable.</p> <p>When an interlocutory decree is rendered in a canse which so far settles the principles of the cause as to make the decree ap-pealeable, and subsequent decrees carrying out the principles so settled, are entered in the cause, an appeal from such interlocutory decree alone, will not bring up for review such subsequent decrees, although the same were entered long prior to the granting of such appeal, (p. 366.)</p> <p>2. Same — Reversal—Bffect.</p> <p>After the reversal of the interlocutory decree on such appeal, the subsequent decrees mentioned not having been set aside, reversed, or corrected by bill of review, appeal, or otherwise, the same remain firm and valid, although inconsistent with the judgment of this Court in reversing the first mentioned decree, (p. 368.)</p>

<p>1. Reeebence — Report of Commissioner.</p> <p>A commissioner may authorize any person to write his report at his dictation and under his supervision. It is not essential that it should be in his own handwriting, (p. 376.)</p> <p>2. Mechanic's Lien — Account Filed, — Sufficiency.</p> <p>In a contract directly with the owner, our statute does not require of the contractor an itemized account of work done and material furnished to enable him to procure his mechanic’s lien, hut he is required to file “a just and true account of the amount due him after allowing all credits, together with a description of the property intended to he covered by the lien sufficiently accurate for identification, with the name of the owner or owners of the property, if known.” (p.377.)</p> <p>3. Same.</p> <p>A general statement of the demand of such contractor showing its nature and character, and the amount due or owing thereon after allowing all credits is a compliance with the statute, (p. 377.)</p> <p>4. Same — Filing Lien.</p> <p>When repairs, improvements and additions are made to a building under contract directly with the owner and the work prosecuted to completion, dates when the several items of work was done and materials furnished are not material except that it must appear that the last work done]and the last material furnished necessary to the completion of the work was done and furnished within sixty days before the filing and recording of the mechanic’s lien. (p. 378.)</p> <p>5. Same — Time of Doing Work and Furnishing Material.</p> <p>When a contractor undertakes with the owner to make such repairs, improvements and additions, without a contract price as to the whole work but in the course of the work it is agreed that a certain sum shall he paid for a particular part of the work which is done along with the rest of the work, such sum may. constitute one item in the general account, and form a part of the mechanic’s lien although the work and material represented by said sum may have been done and furnished more than sixty days prior to the filing of the lien. (p. 378.)</p> <p>6. Same — Appurtenances to Building.</p> <p>Under such general contract with the owner for such work and repairs where walks and fences on the premises are constructed as appurtenant to such building, and at the same time, the contractor is entitled under our statute to include the same in his mechanic’s lien. (p. 379.)</p> <p>7. Same — Property Subject.</p> <p>And so, the price of a coal house and sample room, constructed on the premises under such contract appurtenant to and to be used with such building, used as a hotel, is proper to be included in such mechanic’s lien. (p. 379.)</p> <p>8. Same,</p> <p>A mechanic’s lien may include an item for a drain pipe from the cellar of a house into a sewer in the street. Such drain pipe is a part of the house, (p. 381.)</p> <p>9. Same — Enforcement—Gounsel Eees.</p> <p>In a suit to enforce mechanic’s liens it is error to decree as part of plaintiff’s costs “the sum of $300, counsel fees hereby allowed counsel for plaintiff for conducting this suit.” (p. 383.)</p> <p>10. Liens — Actions—Sale,</p> <p>In a suit to sell real estate to satisfy mechanic’s liens and judgment liens and also a subsequent trust lien, which covers a part only of the real estate so to be sold, it is error to decree the sale of the property as a whole, (p. 384.)</p>

<p>1. APPOINTMENT OP RECEIVER.</p> <p>The application for the appointment of a receiver is addressed to the.sound discretion of the court. The appointment is not a matter of right. The power is a discretionary one to he exercised with great circumspection. The discretion is not arbitrary or absolute, but sound and judicial; not to be too strictly limited, or lightly used. (p. 397.)</p> <p>2. Receiver — Appointment Of.</p> <p>Where, under an executory contract of sale of many tracts of land and standing timber a cash payment is made and the purchaser agrees to give notes for the deferred monthly payments and takes possession of the subject of his purchase and proceeds to cut and manufacture into lumber and remove therefrom the timber and market the same as provided in the contract, but refuses to make any further payments on the purchase money or to m’ake the notes therefor as required by the contract because of defect of grantor’s title tendered to the purchaser; the timber being the chief value of the land and unless operated the title to much of the timber would fail because of the limited time in which it could be removed under the contracts by which it was held by the vendor. Held: Sufficient ground for the appointment of a receiver on the application of the vendor, (p. 398.)</p> <p>3. Equity — Executory Contract — Payment of Purchase Money — Retention of Timber.</p> <p>Where the purchaser under such contract has continued in possession cutting, manufacturing into lumber and removing the timber, refusing to pay anything on account of the purchase-money, and refusing to make the notes for the monthly payments of the purchase-money as required by the contract; equity will give the vendor a right to hold the manufactured product remaining on the premises liable to the purchase money past due him. (p. 407.)</p> <p>4. Taxes — Purchaser in Possession to Pay Taxes.</p> <p>A purchaser in possession of land under an executory contract of sale is liable as between himself and the vendor for all taxes assessed on the land after the commencement of his possession, in the absence of a stipulation to the contrary, (p. 403.)</p>

<p>1. Estoppel — What Constitutes — Agreed Statement of facts.</p> <p>Where an action of ejectment is brought and submitted upon an agreed statement of facts, and before the decision thereof the defendants move to -withdraw such agreed statement of facts, and file a bill in equity setting up a matter of equity not cognizable in such action, and praying- for an injunction restraining the prosecution of the action of ejectment, such agreed statement of facts will not estop them from setting up such equity and enjoining the prosecution of such action, (p. 412.)</p> <p>2. Tkusts — Evidence.</p> <p>Where land is purchased and paid for by one who takes a title bond therefor and who dies before obtaining a deed, leaving surviving him a widow and children, and the widow, on account of such purchase, procures the vendor of her husband to convey the land to her, she will be treated in equity as a trustee, holding the legal title for the heirs, the equitable title thereto having, immediately upon the death of the father, vested in them, subject to the widow’s dower, (p. 416 )</p> <p>3. Same — Express Trust — Establishment.</p> <p>A verbal statement of one holding the equitable title to land to the effect that he wants the same conveyed to his wife will not operate to pass the equitable title to her, and where, after the death of the husband, his vendor, on account of such statement, conveys the land to the widow, such deed does not thereby vest the equitable title to said land in the widow, but it will operate only to convey the legal title, to be held by her in trust for the heirs, which a court of equity will enforce, upon proper bill filed for that purpose. (p. 416.)</p> <p>4. Equity — Laches.</p> <p>The plaintiffs and those under whom they claim are not guilty of laches in asserting their rights, (p. 416.)</p>

<p>1. ERROR — Bill of Exceptions — Evidence—Record.</p> <p>A bill of exceptions, relied on to make the.evidence a part of the record in an action at law, must incorporate, or have annexed to it, the evidence, or contain a sufficient description or other means ■of identification of such evidence. Otherwise the bill is insufficient to make the evidence a part of it or of the record, (p. 418.)</p> <p>(Branson, Judge, absent).</p>

<p>1. Death — Action for Damages — Pleading—Admissions.</p> <p>In an action under sections 5 and 6 of chapter 103, Code (1899), for damages for the death of a person caused by 'wrongful act, neglect or default, a plea to the merits of the action admits the representative character in which the plaintiff sues. (p. 431.)</p> <p>Z. Pleading and Pboof— Variance.</p> <p>In such action, a variance between the declaration and the proof, relating alone to the instrument by which a bodily injury was inflicted, is immaterial and should be disregarded, when the instrument alleged and the instrument proved are of the same general nature. (p. 423.)</p> <p>3. Depositions — Seal of Notary.</p> <p>A deposition of a witness who resides out of this State, taken out of this State in conformity with section 33, chapter 130, Code (1899), in an action at law pending before a circuit court of this State, may be received, when properly certified under the hand of the notary public before whom it was taken, although not under his official seal, if otherwise proper, (p. 429.)</p> <p>4. Same — Witness Out of State.</p> <p>A deposition of a witness taken out of this State, in an action at law pending in a circuit court of this State, may be read upon the trial of such action, if the deposition shows that the witness resided out of this State when it was taken and if otherwise proper, unless it appears that the witness is in this State when the deposition is offered, (p. 429.)</p> <p>5. Death — Negligence—Burden of Proof — Presumptions.</p> <p>This action being founded upon negligence, the burden of proof is upon the plaintiff to show that the defendant has been negligent. Negligence will not be presumed alone from the explosion of a locomotive boiler, in use in lawful business upon the tracks of the defendant. (p. 430.)</p> <p>6. Tbial — Evidence—Motion to Exchicle.</p> <p>Upon the consideration of a motion to exclude all of the plaintiff’s evidence introduced upon the trial of an action, he is entitled to the benefit of all proper evidence so introduced, and to all legitimate inferences of fact which may be drawn therefrom, (p. 430.)</p> <p>7. Evidence — Expert Testimony.</p> <p>An expert witness may give an opinion, in a proper case, based upon his own knowledge of facts disclosed in his testimony; or he may give an opinion upon the facts shown in evidence, and assumed in a hypothetical question submitted to him. (p. 430.)</p> <p>8. Appeal — Review—Reversal.</p> <p>Where the circuit court on motion excluded all of the plaintiff’s evidence, directed a verdict for defendant and dismissed the action, and upon writ of error to the judgment it appears that material and proper evidence offered by plaintiff during the progress of the trial was improperly rejected to the plaintiff’s prejudice, this Court will reverse the judgment, set aside the verdict, award a new trial, and remand the case. (p. 431.)</p>

<p>1. Insurance — Inventory.</p> <p>An inventory of a stock of merchandise, within the meaning' of the term “inventory” used in what is known as “The Iron Safe Clause” .of a fire insurance policy, is a list of all the articles of merchandise in the stock, sufficiently itemized to show the kinds and numbers or quantities thereof, together with their values at the time of making the same, as nearly as they can be ascertained, (p. 434.)</p> <p>2. INSURANCE — Inventory.</p> <p>In the case of a store, opening with an entirely new stock of goods, at or about the date of the issuance of the policy, the invoices of the first lot of goods put into it, giving the quantities thereof by items, with the cost prices, if preserved and kept for production, upon the demand of-the insurer, as and for an inventory, will constitute such a list, and the insured will have substantially complied with so much of the policy as requires the taking of an inventory. (p. 434.)</p> <p>3. Insubance — Inventory.</p> <p>In determining what constitutes such an inventory, regard must be had to the purpose for which it is required, and, in seeking this, all parts of the “Iron Safe Clause” should be read and considered together, (p. 435.)</p> <p>4. Fire Insurance Policy — Waiver of Breach — Agent—Estopped.</p> <p>Cancellation of a fire insurance policy, by an agent of the company, having no authority to waive conditions, except by endorsement on the policy or addition thereto, does not imply a waiver oí a breach, previously made, of a promissory warranty therein contained, or estop the company from relying upon such breach as matter of defense to an action on the policy, though it be shown that the agents had knowledge of such breach, (p. 430.)</p> <p>5. InsuraNO® Policy — -Warner—Cancellation of Policy.</p> <p>Violation of a clause of an insurance policy, declaring-that it shall become null and void, if the hazard be increased by any means within the control or knowledge of the insured, is not waived by a letter, written at about the date of the fire, which caused the destruction of the property, by an agent of the company, having no authority to waive conditions, except by endorsement on the policy or addition thereto, notifying the insured that the policy is can-celled, and specifying said violation as the reason for cancelling it. (p. 436.)</p> <p>6. Judgment by Aiuuíllatb Court — llmersal for Insufficiency of Bm-dcnce.</p> <p>This Court on reversing- a judgment for the plaintiff, and setting-aside a verdict, for insufficiency of evidence, and refusal of the trial court to exclude the evidence from the jury and direct a verdict for the defendant, will not remand the case for a new trial, but will render judgment for the defendant, when it does not appear that injustice will be done thereby. [By four judges, Poe-eenbargbr, Judge, dissenting'.] (p. 439.)</p>

<p>1. CANCELLATION or Instruments — Undue Influence — Mental Incapacity — Burden of Proof.</p> <p>In a suit, brought by a son after the death of his father, to set. aside, for mental incompetency and undue influence, deeds made by the father, while aged, infirm and feeble in mind, by which he-had granted the whole of his real estate to his wife and a daughter who resided with him, to the exclusion of his other children, all of Whom were of mature age, married and residing elsewhere, the burden of proving both undue influence and mental incompetency is upon the plaintiff, (p. 450.)</p> <p>2. Deeds — Mental Capacity of Grantor — Infirmity of Mind.</p> <p>Mere infirmity of mind and body is not sufficient to overcome the legal presumption of mental capacity in a grantor. In order to have such effect, the evidence must show that he did not have sufficient understanding to clearly comprehend the nature of the business he was transacting, (p. 456.)</p> <p>3. Evidence — Competency of Grantor — Opinion Evidence.</p> <p>On the question of the competency of a grantor to execute a deed, the value of the opinions of non-expert witnesses, who have-had opportunity to form intelligent opinions, respecting his competency, depends upon the reasons therefor afforded by the facts upon which they are predicated, as stated by the witnesses. Where the opportunities of such witness' to obtain knowledge of the grantor’s mental condition have been but slight, and the facts given are meager, such evidence is entitled to but little weight, (p. 456.)</p> <p>4. Deeds — Validity—Undue Influence.</p> <p>Old age, physical infirmity and disease and feebleness of intellect, on the part of a grantor, together with the fact that he granted the whole of his estate to his wife and one daughter, who resided with him, and upon whom he was dependent for personal care and attention, to the exclusion of all his other children, raise no legal presumption of undue influence. They are only circumstances slightly tending to establish it. (p. 456.)</p> <p>5. Same — Evidence.</p> <p>That, in such case, the disposition made of the grantor’s property is wholly different from what had previously been intended, as shown by a will executed by him at an earlier date, is a circumstance from which undue influence may, under certain conditions, be inferred; but, if it further appear that, at the time of the execution oí the deed, proceedings were pending for the enforcement of liens upon the grantor’s real estate, for the discharge of which no funds were at hand or within reach; and that such indebtedness weighed heavily upon his mind at the time of the execution of both the will and the deed, this circumstance, together with other facts set out in detail in the opinion in the case, affords grounds for a strong inference to the contrary, (p. 461.)</p>

<p>1. Divobcb — Bill—Demurrer.</p> <p>A bill for divorce lias two grounds or matters for relief. It charges adultery calling for absolute divorce, and desertion calling for decree of separation. The bill does not name a pwi'ticeps in the adultery, or give time, place and circumstance. If the bill be bad therefor, a demurrer, being general, is properly overruled, (p. 465.)</p> <p>2. Same — Enforcement of Payment of Alimony — Striking Out Depositions.</p> <p>A court has no power to strike out and disregard- depositions filed by a defendant in defence of a suit for divorce, for failure to pay money required of him to enable his wife to prosecute her suit and for temporary alimony, and pass final decree of divorce against him. Such decree is not due process of law. (p.466.)</p> <p>3. Same — Confessions—Admissibility.</p> <p>Confessions of adultery made in the country cannot be given in evidence or considered in a suit for divorce for such offense, (p. 473.)</p>

<p>1. Intoxicating Liquobs — Gift to Minor — Evidence.</p> <p>H. placed a bottle of whiskey on a table and told F., the father of B., a minor under the age of twenty-one years, to take what he wanted of it; and if he allowed the boy E. to have any of the liquor, that he was welcome to it; the father said he could have it, and the boy took up the liquor and drank of it in the presence of his father. Held: No offense under section 16, chapter 32, Code of 1899. (p. 475, 476.)</p>

<p>1. Limitation or Actions — Dismissal of Actions — Claims Against instate.</p> <p>Executors bring a suit in equity to settle their accounts, setting-up in their bill that Hevener claims a debt against their decedent, stating- its nature, and denying it, and asking the court to adjudicate as to its validity. Hevener files an answer setting up his debt and asking a decree for it against the estate. The bill is dismissed for want of jurisdiction in equity. Held, Hevener is allowed one year after such dismissal to save a suit by him from the statute of limitations by force of section 19, chapter 104, Code 1899. (p. 479.)</p> <p>'2. Same — Suits in Equity and Actions at Law.</p> <p>Section 19, chapter 104, Code 1899, applies to both suits inequity and actions at law. (p. 478.)</p> <p>3. Same — Action Pending — Objections.</p> <p>The time of the pendency of such suit is to be excluded from computation under the statute of limitations in a new suit for the debt, because the former suit is an obstruction under section 18, chapter 104, Code 1899. (p. 479.)</p>

<p>1. Goal Lands — Deeds—Construction Of.</p> <p>Deeds conveying coal with rights oí removal should be construed iu the same way as other written instruments, and the intention of the parties as manifest by the language used in the deed itself should govern, (p. 488.)</p> <p>2; Goad Lands — Removal of Coal.</p> <p>The vendor of land may sell and convey his coal and grant to the vendee the right to enter upon and under said land and to mine, excavate and remove all of the coal purchased and paid for by him, and if the removal of the coal necessarily causes the surface to subside or break the grantor cannot be heard to complain thereof, (p. 484.)</p> <p>3. Samb — lleservation in Deed.</p> <p>Where a deed conveys the coal under a tract of land, together with the right to enter upon and under said land and to mine, excavate and remove all of it, there is no implied reservation in such an instrument that the grantee must leave enough coal to support the surface in its original position, (p. 484.)</p> <p>4. Oontkacts — Construction.</p> <p>It is the duty of the court to construe" contracts as they are made by the parties thereto, and to give full force and effect to the language used, when it is clear, plain, simple and unambiguous, (p. 494.)</p> <p>5. Same.</p> <p>It is only where the language of a contract is ambiguous and uncertain and susceptible of more than one construction that a court may under the well established rules of construction interfere to reach a proper construction and make certain that which in itself is uncertain, (p.494.)</p>

<p>1.Taxation — Mining Lease — Chattel Seal — Assessment to Lessee.</p> <p>A sealed writing witnesses that “the lessors do demise, let and lease for coal mining and coke manufacturing purposes for a period of thirty years” * * * a tract of land; and that the lessors “do also grant unto the lessee the sole and exclusive right and privilege of mining, shipping and selling the coal from the above leased premises * * and the right to erect and use all buildings and structures necessary for the purposes of mining-, coking and shipping the coal and coke;” and also that “it is expressly agreed between the respective parties to this lease that if at the expiration of the said period of thirty years, all of the available merchantable coal which can be profitably mined, and which is hereby let to the lessee for that purpose, has not been mined and removed, then the lessee shall have the privilege of an extension of this lease upon the same terms and conditions as those hereinbefore set forth, for a reasonable additional time until the whole of said coal can be so mined and removed.” The writing provided for a rent or royalty to the lessors of ten cents a ton for all coal mined, and also contained a clause of forfeiture for noncompliance by the lessee with the covenant of the writing. Held, that this writing created a lease, a chattel real, taxable to the lessee under chapter 35, Acts of 1905. (p. 609.)</p> <p>2. Samb — Double Taxation.</p> <p>Chapter 35, Acts of 1905, in its taxation of chattels real, is notin violation, as double taxation, or otherwise, of the State Constitution. (p. 633.)</p> <p>3. Constitutional Law — Due Process of Law — Dqual Protection of Laws — Taxation of Lease as Personalty.</p> <p>Chapter 35, Acts of 1905, is not in violation of amendment 14 of the National Constitution, as wanting due process of law, or denying equal protection of the law. (p. 638.)</p>

<p>1. Wills— Construction — Devisees.</p> <p>H. K. made his will devising his real estate share and share alike to his seven children and relative to his devise to one of them, who had one child living at the date of the will as well as the date of the testator’s death, the following provision was made: ‘ ‘But the share that I will and bequeath to my daughter, Emma-zetta Bently, late Emmazetta Knight, it is my express will and desire and I hereby give the same to her and her child or children, to be held by them free from the claim or claims of control of her husband, and the same shall be held and enjoyed — -the said Emmazetta'Bentley and her child or children, as her or their separate estate, and that the said Bently shall not have or exercise any control over the same directly or indirectly, in any manner whatever.” Held: That not only the child living at the date of the will and at the time of testator’s death, but all children born to E. thereafter, took each in fee equally under the will with E. the mother, (pp. 646, 647, 648.)</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Action by the Schwarzchild & Sulzberger Company against the Chesapeake <& Ohio Eailway Company. Judgment for plaintiff, defendant brings error.</p>

<p>1. XJsnRT — Personal Plea.</p> <p>The defense of usury is personal to the debtor, (p. 656.)</p> <p>2. Usury — Assumption of Payment.</p> <p>A purchaser of real estate charged with an usurious debt, who assumes to pay such debt in consideration of his purchase, cannot defend against the usury, (p. 656.)</p> <p>3. Novation.</p> <p>Novation is the substitution of one debtor by mutual agreement for another, whereby the old debt is extinguished, (p. 657.)</p>

<p>1. Specific PbefoRmance — Executory Contract — Fraud.</p> <p>An executory contract for the sale of land will not be specifically enforced in favor of a vendor who has made material fraudulent misrepresentations, upon which the vendee relied in making the contract, (p. 661.)</p> <p>2. Same — Cancellation of Contracts — Fraud.</p> <p>Equity will rescind such contract where such relief is asked by the purchaser, (p. 667.)</p> <p>3. Same — Misrepresentations.</p> <p>Misrepresentations, though in a slight degree, of material facts, relied upon by the vendee, will defeat specific performance in favor of the vendor, (p. 667.)</p> <p>4. Same.</p> <p>A court of equity will not specifically enforce an executory contract when it appears to be unfair, tainted with fraud or induced by misrepresentations, (p. 667.)</p>

<p>1. Tenancy in Common — Ouster of Go- Tenant — Payment of Taxes.</p> <p>The payment of taxes by one co-tenant, on the land owned in common, does not of itself constitute an ouster of another co-tenant. (p. 674.)</p> <p>2. Same — Adverse Possession — Commencement.</p> <p>The statute of limitations does not begin to run in favor of one co-tenant of land in possession, against another co-tenant thereof, until actual ouster by the former, or some other act or acts on his part amounting to a total denial of the right of the latter, and until notice or knowledge of the act or acts relied on as an ouster is brought home .to him. (p.673.)</p> <p>8. Same.</p> <p>The notice or knowledge required must be either actual, or the act or acts relied on as an ouster must be of such an open and notorious character as to be notice of themselves, or reasonably sufficient to put the disseized co-tenant on inquiry which, if diligently pursued, will lead to notice or knowledge in fact. (p. 675.)</p> <p>4. Ejectment — Verdict—Form.</p> <p>If the evidence on the trial of an action of ejectment shows that the plaintiff is entitled to hold a part, share or interest (less than the whole) of or in the land sued for, and that the defendant is entitled to hold a part, share or interest (less than the whole) of or in said land, the verdict should specify and describe the part, share or interest which each of the parties is entitled to hold. (p. 676.)</p>

Bill by Martha D. Yokum and others against Benjamin C. Stalnaker and others. Decree for complainants and defendants Harriet S. Wamsley and others appeal.

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Bill by L. M. Bennett against A. D. Preston. Decree for defendant, and plaintiff appeals.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by Maria E. Casto and others against C. J. and G. W. Baker. Judgment for plaintiffs, and defendants bring error.</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Action by Arthur Gr. Comer against the Tug River Coal and Coke Company. Judgment for plaintiff and defendant appeals.</p>