Volume 60 — West Virginia Reports

<p>1. Featjdulbht CONVEYANCE — Liabilities of Purchaser.</p> <p>In order to charge land with the grantor’s debts conveyed in fraud of creditors by him to a purchaser for valuable consideration, it is indispensable that it be shown that such purchaser had notice of his grantor’s fraudulent intent, (p. 2.)</p>

<p>1. Citizens — Who Are — Of Counties.</p> <p>A county lias no citizen, in a legal sense, (p. 5.)</p> <p>2. Same — Presumptions.</p> <p>A person residing in a state is presumed to be a citizen thereof. (p. 6.)</p> <p>3. Intoxicating Liquous — Nuisances—Abatement.</p> <p>The word “citizen” as used in section 24, chapter 36, Acts of 1905, means a resident of a county, (p. 6.)</p> <p>4. Same — Grant of Lieense.</p> <p>By section 10, chapter 36, Acts of 1905, a county court is prohibited from granting license to sell intoxicating drinks within two miles of an incorporated city, town or village, without the consent of its council. A license granted without such consent is void and sales under it violate the law. (p. 6.)</p> <p>5. Same — Consent to License.</p> <p>The written record of an order of a council of a city, town or village granting its consent to a person to obtain license to sell intoxicating liquors, must be produced to show such consent, or its absence fairly accounted for. (p. 7.)</p> <p>6. Same — Nuisance—Injunction.</p> <p>Equity has jurisdiction under section 34, chapter 36, Acts of 1906, to enjoin a nuisance arising from sale of intoxicating drinks at a building contrary to law, and to enjoin the sale thereat, and to abate the public nuisance thus created, (p. 8.)</p>

<p>1. Divoecb — Gruel and Inhuman Treatment.</p> <p>Such conduct and acts by a husband toward his wife, such treatment of her by him, as produces reasonable apprehension in her of personal violence, or produces, mental anguish, distress and sorrow, and renders co-habitation miserable, impairing, or likely to impair, the wife’s health or mind, is cruel and inhuman treatment authorizing a divorce from bed and board under the Code of 1899, chapter 64, section 6, though there be no personal violence, (p. 16.)</p> <p>2. Same — Permanent Alimony.</p> <p>Permanent alimony decreed in a fixed annual sum, the defendant appearing in the case or served with process, is a personal decree and a lien on his land, though such alimony be payable in installments in the future, (p. 21.)</p> <p>3. Same.</p> <p>Quaere. Oan a court, in a divorce case, declare alimony a lien on specific land brought before the court in case the defendant is a non-resident, so that no personal decrees can be had, under section 11, chapter 64, Oode of 1899? (p. 21.)</p> <p>4. Fraudulent Conveyance — Deed—Marriage.</p> <p>A voluntary conveyance made by a man under engagement to marry, made before and in contemplation of marriage, without the knowledge of the intended wife, with intent to free the land of the marital rights of the wife, is void as to her dower rights, and as to the alimony decreed against him in a suit for divorce, (p. 23.)</p>

<p>1. Water and Water Courses — Polluting Stream — Injury to Hipa-rían Owners.</p> <p>A company mining coal and making coke casts slag and other refuse materials into or. near a stream, and they are carried by its waters and deposited on land of a riparian owner, doing damage to the land. The company is liabl'e therefor to the land owner, (p. 28.)</p> <p>2. Torts — Joint and Several Liability.</p> <p>When the negligent acts of two or more persons, though acting independently of each other, concurrently result in injury to the property of another, they are liable either jointly or separately. (P- 31.)</p> <p>3. Limitation of Actions — Accrual of Cause of Action.</p> <p>The cause of action to an owner of land damaged by deposit on it of refuse material put into a stream by a person in operations of mining coal and making coke, and thence carried by its waters and deposited on the land, first accrues when the material is deposited upon the land, and the statute of limitations does not run against such action until such material is deposited on the land. (p. 33.)</p>

<p>1. Specific PERFORMANCE— Verbal Gift of Land.</p> <p>To enforce specific performance of a verbal gift of land by father to son, the contract of gift must be clear and definite, and the evidence to sustain it must be direct, positive, express and unambiguous. (p. 36.)</p>

<p>1. ADJonsnsra Laudowiters — Injunction—Light and Aw.</p> <p>The owner of land cannot maintain a bill íot an in junction against the owner of adjoining land, to restrain him from maintaining a fence of unusual height on his land, on the sole ground that such fence deprives a building on the land of the former of light and air coming laterally from such adjoining land. (p. 40.)</p>

<p>Error to Circuit Court, Tucker County. •</p> <p>Action by A. Thompson againt P. H. Murphy and others-Judgment for plaintiff, and defendant the Laboringman’s Mercantile & Manufacturing Company, brings error.</p>

<p>1. Injunction — Prosecution of Action.</p> <p>An action cf assumpsit by a railroad contractor against a, railroad company to recover for work of construction under contract will not be enjoined, at the company’s instance, merely because a number of creditors of such contractor have garnished the company. (p. 56.)</p> <p>2. Equity — Jurisdiction—Belief Granted.</p> <p>It is not an infallible rule that equity, having jurisdiction for one purpose, will give full relief on all matters involved, though some be proper for a court of law. If a trial of such legal matters by jury is essential to relief, or peculiarly more appropriate for trial by jury than by a judge, equity will decline jurisdiction as to those matters, leaving the parties to their legal remedies, The facts of each case must determine as to this. (p. 58.)</p>

<p>1. Appeal — Decisions lieneioable — Election Contests.</p> <p>This Court has jurisdiction, upon writ of error, to review the final order of a circuit court in an election contest for a county office, where it is shown that the value of the office is greater than one hundred dollars, (p. 61.)</p> <p>2. Elections — Mection Contest — Constitutional Law — Appeal.</p> <p>The part of chapter 80 of the acts of the legislature of 1901 which provides for an appeal, by either party, from the final order or decision of the county court in an election contest for a county or district office, to the circuit court and a trial de now in that court, is. constitutional, (p. 61.)</p> <p>3. Same — Returns—Rejection.</p> <p>Before the certificate return of the result of an election, made by the commissioners,, can be rejected on the ground of fraud in the conduct of the election, it must appear that the proceedings in the conduct thereof were so tainted with fraud as to change the result, or that the truth cannot be deduced from the return, (p. 65.)</p> <p>•4. Same — Irregularities.</p> <p>Irregularities in the conduct of an election are generally to be disregarded, unless the statute declares that they shall be fatal to the election, or unless they are such in themselves as to change, or to render it impossible to ascertain, the result, (p, 66.)</p> <p>•5. -Same.</p> <p>As a general rule, when the true result of a legal election has been ascertained, or can be ascertained, by the officers charged with the performance of the duty, no irregularity, mistake, or even fraud, committed by any of the officers conducting the election, or by any other person, will render the election void. (p. 66.)</p> <p>■6. Same — Certificate—lletum—Gonclusweness.</p> <p>Where, upon' the trial of an election contest for a county office, it appears that the ballots cast at an election precinct have been tampered with, after the return by the commissioners of election, and that part of the ballots are void because one poll clerk, had signed thereon the names of both poll clerk, and that the remainder of the ballots are not void for want of proper signing by both poll clerks, and that the certificate return of the result of the election made by the commissioners thereof is not otherwise impeached, the ballots will not prevail over the certificate return as evidence of the result of the election at that precinct, (p. 69.)</p>

<p>1. Specific PERFORMANCE — Option Contract.</p> <p>Where an option has been given upon land, which has not been converted into a binding contract by acceptance in accordance with its provisions, specific performance thereof cannot be enforced, (p.. 78.)</p> <p>2. Same — Acceptance of Option — Executory Contract.</p> <p>An option given for the sale of land, supported by a valuable consideration, is not a sale of real estate, nor an agreement to sell, but is an executed contract, giving the optionee the exclusive privilege of purchasing within the-time limited, and which cannot be withdrawn during the time stipulated for; and upon acceptance within, that time, it becomes an executory contract for the sale of land,, which may be specifically enforced in a proper case. (p. 78.)</p> <p>5. Vendor and Pukohaser — Option Contract — Conditions Precedent.</p> <p>Where the owner gives to another an option to purchase the coal underlying certain land, in which it is provided that unless the op-tionee accept the same and pay one-third of the purchase money wilhin a stipulated time, that the option shall be null and void, and the parties mutually released therefrom, it is a condition precedent to the consummation of an executory contract of sale between the parties, that the option be accepted and the money paid within the time limited, (p. 79.)</p>

<p>1. Easements — Partition.</p> <p>Upon partition of real estate descended, between heirs, each heir takes his share of land subject to any apparent, permanent, continuous and reasonably necessary quasi easement which existed thereon, for the benefit of another part of such real estate, at the death of the ancestor, unless the existence of such quasi easement has been discontinued by the heirs before partition, or provision is made by the partition for its discontinuance, (p. 91.)</p> <p>2. Same — Interchangeable Deeds — Interference with Basement.</p> <p>Upon partition of a farm, descended from an ancestor, between his heirs, by what is termed an interchangeable or partition deed, whereby they in effect provide for the continuance of an apparent, permanent, continuous and reasonably necessary quasi easement, which existed at the death of the ancestor, upon a part of the farm for the benefit of another part thereof, and convey to one of the heirs the servient part and to other of the heirs the dominant part, the one to whom the servient part is thus conveyed has no right to so change the physical condition thereof as to materially and permanently interfere with or destroy such easement, (p. 94.)</p> <p>3. Wateiis and Water Courses — Easement—Obstructions.</p> <p>Where such easement consists of a right to a supply of water naturally issuing or flowing from the servient land, the owner thereof has no right to cutoff or materially impair that supply by making excavations, tunnels, walls or other constructions on the servient land, (p. 96.)</p> <p>4. Easement — Intbrebrence with — Injunction.</p> <p>A court of equity has jurisdiction, by injunction, to prevent a continuing material interference with an- easement, (p. 97.)</p>

<p>1. Evidence — Parol Evidence — Ambiguous Deed.</p> <p>Whether a contract of sale of real estate, executed by the delivery of a deed, conveying the land, was a sale by the acre or a sale in gi'oss, must be ascertained from the terms of the deed, unless it be ambiguous. But, if the deed is ambiguous, parol evidence of the ■circumstances which surrounded the parties and their situation, when the deed was made, and their conduct in carrying the contract into execution, is admissible, not to prove in point of fact a sale by the acre, but only to aid in construing the deed, and no other kind of parol evidence is admissible for such purpose, (p. 99.)</p> <p>'2. Same — Construction of Deed by Parties.</p> <p>When, by reason of a positive affirmation in a deed of the quantity of the land conveyed, the deed is ambiguous on its face, as to whether a warranty of quantity was intended by the vendor, parol evidence of the circumstances which surrounded the parties and their situation, when the deed was made, and their conduct in carrying the contract intu execution, may be considered in determining, by construction of the deed, whether such implied warranty was intended, but no other parol evidence can be considered, (p. 101.)</p> <p>3. VENDOR and Purchaser — Deed—Construction—Sale in Cross.</p> <p>A deed, ambiguous on its face as to whether the sale was by the acre or in gross, and as to whether an implied warranty of quantity was intended, is prima facie a contract of sale in gross and without such warranty, (p. 101.)</p> <p>•4. Evidence — Parol Evidence — Fraudulent Misrepresentation.</p> <p>A positive affirmation in a deed, as to the quantity of the land conveyed by it, is a representation by the grantor upon which the grantee is presumed to have relied, in determining the price he agreed to pay, and, if the quantity actually conveyed turns out to be materially less than that, so represented, a prima facie case of fraudulent misrepresentation by the vendor is thereby established, giving the vendee a right to compensation for the deficiency, but all kinds of relevant and material parol evidence is admissible, on behalf of the vendor, to prove that the vendee did not rely upon the representation, or believe it to be true, and was not influenced by it in agreeing to pay the price stipulated, but not to contradict the statement made in the deed; and, on behalf of the vendee, to prove that he did rely upon the statement and was injured thereby. In such case, the issue is one of fact, as to intent, without any limi tation. upon relevant parol óvidence, except that the representation cannot be denied, as such denial would be a contradiction of the written contract, (p. 103.)</p>

<p>1. Appeal.</p> <p>An appeal was unknown lo the common law. In the civil law and equity jurisprudence its object was to take the whole case to the higher tribunal, there to be tried and determined de novo upon the issues between the parties, as though the cause had originated in the appellate court, (p. 111.)</p> <p>2. Appeal erom Circuit to Supreme Court — Appeal is New-Suit.</p> <p>But, under our statute, an appeal from a circuit court to the Supreme Court of Appeals, -is the beginning of a new, and not a continuation of an old, suit. (p. 114.)</p> <p>3. Purchaser oe Property.</p> <p>One who, after final decree and termination of the suit, and before an appeal is obtained, purchases, in good faith, property which is the subject of the litigation, will be protected in such purchase, (p. 115.)</p> <p>4. Purchaser Pekdekte Lite — Lis-Pendens.</p> <p>In determining the question as to whether or not a purchase is made pendente lite, the test is, was there, at the time of the purchase, a suit pending, involving the rule, Us pendens. If so, the pur-' chase is pendente lite. It is otherwise if there is no such suit pending. (p. 108.)</p> <p>5. Lis Pekídeks.</p> <p>The object of the rule, lis pendens, is to preserve the property which is’the subject of litigation, so as to enable the court, when the questions involved in the suit are finally determined, to execute its judgment or decree, (p. 110.)</p> <p>6. Sale oe Real Estate eor Taxes — Injunction— Title.</p> <p>Where the holder of a deed of trust, given to secure deferred installments of purchase monej, advertises the land conveyed by said deed for sale, to pay such installments, and sucli sale is enjoined; and, pending the litigation, the land is regularly returned delinquent for the non-payment of taxes thereon, and legally sold and. conveyed to one who, after taking such conveyance, sells and. conveys the same, the grantee of such person secures good title to the property thereby conveyed, (p. 110.)</p>

<p>1. Bills akd Notes — Payment—Burden of Proof.</p> <p>In an action upon a promissory note, -where payment is relied on as a defense, the burden is on the defendant to prove such defense by a preponderance of the testimony, (p. 120.)</p> <p>2. Same — Presumption of Payment.</p> <p>Where an action is brought upon a promissory note, and on the trial it is admitted that the note -was found among the papers of the maker, after his death, there arises from this admission a presumption that the note was paid, but not such a presumption as changes the burden of proof to show payment — the fact of the note having been so found being a matter which can be given in evidence by the defendant to show payment, (p. 120.)</p> <p>3. Tbiai. — Instructions.</p> <p>An instruction which tells the jury “if they believe” instead of “if they belieye from the evidence”, they shall find, &c., is not erroneous, if in another part of the instruction, or in other instructions given in the case, the attention of the jury is specifically directed to the evidence by telling them that they shall base their verdict thereon, (p.120.)</p>

<p>1. Lis Pendens — Final Decree — Reversal of Judgment — Effect—Bona Fide Purchaser.</p> <p>H. J. F. made his will devising all his real estate to O. E. H. and L. P, O. trustees,and providing that one-fourth should go to H. F., one-fourth to the lawful children of P., one-fourth to the children of H., and the remaining fourth to the children of 0.; by codicil the testator afterwards revoked the devise to the children of H. and the children of 0. and died intestate as to said two-fourths. H. J. P. Jr., son and only heir at law of the decedent, instituted suit in the circuit court of the United States to set aside the will and on the 21st day of January, 1885, a decree was entered by said court annulling and setting aside the will and directing the trustees named in the will to convey all the real estate of which H. J. F. died seized to the plaintiff H. J. F. Jr., which they did on the 10th day of February, 1885, by deed of that date; on the 24th day of July, 1885, H. J. F. Jr. and his wife conveyed 300 acres of the said real estate to L. P. who entered into possession of and held the same, farming it, putting improvements upon it and paying the taxes thereon. On the 11th day of June, 1890, the children of P., three of whom were infants, the other two having then recently reached their majority, filed their bill of review and caused the decree of January 21, 1885, to be reversed and annulled. Held: the title of L. P., he being a purchaser for value without notice, is not affected by such reversal, (p. 122.)</p> <p>2. Adveksb Possession — Bona Fide Purchaser.</p> <p>L. P. being a purchaser for value without notice held possession adversely and was not a co-tenant with the claimants under the will of H. J. F. (p. 130.)</p> <p>3. Appeal — Reversal—Effect—Rights of Third Persons.</p> <p>Eights, acquired bona fide by a third party under a final decree rendered by a court of competent jurisdiction, are not affected by a subsequent reversal thereof, (p. 133.)</p> <p>4. Equity — Bill of Review — Nature of Remedy.</p> <p>The decree being final, the bill of review is a new suit having for its object the correction of the final decree in the former suit. (p. 133.)</p> <p>5. Judgment — Foundation in Pleading.</p> <p>A decree to be valid must be based upon proper pleadings,' without which it is void. (p. 136.)</p>

<p>1. CORPORATIONS — Stockholder* Meeting — Estoppel.</p> <p>A stockholder in a corporation, who is present and participates in a meeting- of the stockholders thereof, is estopped to deny the legality of such meeting, (p. 150.)</p> <p>2. Same — Sale of Property — Payment.</p> <p>Under the provisions of the statutes of "West Virginia as am ended and re-enacted by chapter 35, Acts of 1901, a corporation “On the affirmative vote in person or by proxy, of the holders of at least sixty per centum of the outstanding stock of the corporation, may sell, transfer or assign in good faith all of its property and assets,” and may accept in-payment therefor the stock, bonds or other securities of any joint stock company, (p. 151.)</p> <p>3. Same.</p> <p>The provisions of chapter 35, of the Acts of 1901, apply alike to all corporations which are subject to chapters 52, 53 and 54 of the Code, whether incorporated prior or subsequent to the passage of said chapter 35 of Acts of 1901). (p. 152.)</p>

<p>1.Taxation — Delinquent Bale — Purchase by State — Title.</p> <p>To vest title to land in the state, as a purchaser thereof at a sale hy a sheriff for delinquency for non-payment of taxes, the same degree of strictness in compliance with the law, relating to assessment, return of delinquency and sale, is required as in the case of a valid sale to an individual, (p. 203.)</p> <p>2.Same — Defective Sale.</p> <p>No title vests in the state by a fatally defective sale of land made to her by a sheriff at a tax sale. (p. 204.)</p> <p>3. Same — Failure to List Land — Forfeiture.</p> <p>An invalid sale of land to the state for non-payment of taxes does not relieve the owner thereof from the duty of causing the same to be kept on the land books and charged with taxes, in order to prevent forfeiture of the title under section 6 of Article XIII of the Constitution, (p. 203.)</p> <p>4. Same.</p> <p>An assessor, in restoring omitted lands to the land books, under the authority vested in him by section 10 of chapter 29 of the Code, performs a purely ministerial function. Officers charged with such duties, like private persons, act at their peril in determining what their duties are under peculiar circumstances, (p. 214.)</p> <p>5. Statutes — Construction.</p> <p>In construing statutes, courts must presume knowledge on the part of the legislature, of the provisions of the organic law of the state, relating to the subject matter thereof, as well as of the principles of the common law, and will not impute to that body any intention to obstruct or impede the operation of constitutional provisions, or to innovate upon the settled policy of the law. (p. 205.)</p> <p>6. Same — Construction—Other Statutes.</p> <p>Since, by the constitution of this State, the subjects of land titles and taxation are united to some extent, in one scheme or plan, set forth in Article XIII of the Constitution, all statutes, relating to either and affecting the subject matter of the provisions of said article, must be interpreted and construed in the light thereof and made to harmonize with, and conform to, said consti-tional plan. (p. 205.)</p> <p>7. Taxation — Non-payment of Taxes — forfeiture of Lands — Sale of forfeited Lands — Rights of Grantee — fnforaement.</p> <p>In the trial of an action of ejectment, in which the plaintiff asserts title, as a claimant under a junior grant, by transfer of an elder forfeited title to him, as a person eligible to take as a trans-ferree under section 3 of Article XIII of the Constitution, by mere payment of taxes on the land for five successive years after the year 1865, entries found in the land books of the county in which f he land li’es, not fully corresponding with the description of the lands as set forth in the junior patent, but agreeing in several material respects, are admissible as evidence to prove taxation of the land under said patent, (p. 214.)</p> <p>8. Same — Entries in Land Booh — Evidence of Identity.</p> <p>If, in such case, the entries in the land books and the patent agree, respecting the quantity and local description of the land and the name of one of the patentees is omitted and the names of other persons, not shown by the evidence to have had any interest in the land, inserted in lieu thereof, the variance in description does not render the entries inadmissible on the question of identity of the land taxed with the land described in the patent, (p. 214.)</p> <p>9. Same — Payment of Taxes.</p> <p>Receipts for taxes paid under such' entries and certificates of redemption from sales made thereunder to the state are admissible as evidence of payment of taxes on the land by claimants under the junior patent, (p. 215.)</p> <p>■ 10. Same — Documentary Evidence.</p> <p>A letter, written by the auditor of the state, to the patentee whose name did not appear in the land book entries, nearly forty years before trial, transmitting to him a certificate of redemption from a sale made under such entries, is not admissible to prove identity of the land, though found among the papers and effects of such patentee, long after his death, and produced, for the purpose, by his grandson, one of the plaintiffs. Dissentiente, Pobeen-barger, Judge, (p. 220.)</p> <p>11. Taxation — forfeiture to the ¡State — Irregular Entries on land Boohs.</p> <p>Mere irregular entries of land in the land books for taxation and payment of taxes thereon, pursuant to such entry, prevent forfeiture of the title under section 6 of Article XIII of the Constitution and sustain a claimant by transfer under section3 of said article if his status is in other respects sufficient, (p. 217.)</p> <p>12. Same — Payment.</p> <p>Assessment of one half of a tract of land, owned in common by two or more persons, in the name of one tenant and the residue in the name of his co-tenant, does not invalidate or nullify the effect of payment of the taxes so assessed, though no partition of the land had been made. (p. 216.')</p> <p>13. Evidence — Opinion Evidence — Competency as Expert.</p> <p>On the question of the identity of land on which taxes have been charged and paid, as shown by the land books and tax receipts, with land on which it is claimed such charges and payments were made, the opinion of a person whose claim to competency in respect to knowledge is based solely upon the facts that he is surveyor of the county in which the land lies, has served as deputy for the clerk of the county court of said county and executed the order of survey in the pending action, is not admissible. (p. 211.)</p> <p>14. Acknowledgment —Deeds—Admissibility in Evidence.</p> <p>A deed purporting to convey land situated in this state, acknowl edged in the year 1872, in the city of New York, before a commissioner for the Commonwealth of Yirgina in the state of New York, recorded in this state in the county in which the land lies, and re-acknowledged, before an officer competent to take acknowledgments of deeds conveying land situated in this state, after the commencement of the action in which its use is desired as evidence, is admissible, between the parties thereto and against all other persons except subsequent purchasers claiming the land and creditors seeking to charge it, under the same title, (p. 226.)</p> <p>15. Vendor and Purchaser — Constructive Notice — Record—Persons Affected.</p> <p>Constructive notice, by recordation of deeds and other instruments, is operative only among parties claiming rights under the same title. Between claimants under distinct and hostile titless, notice is ordinarly immaterial and inoperative, (p. 227.)</p> <p>16. Depositions — Service of Notice — Waiver.</p> <p>A deposition talcen pursuant to anotice served on the attorney of a party who resides in this state, at the time of such service cannot be used as evidence, in the absence of a waiver of the lack of service'. Mere silence of the party, after knowledge of the service, and of his attorney, at the time of service, does not con-, stitute such waiver, (p. 227.)</p> <p>17. Appear — Review—Exclusion of Evidence.</p> <p>An appellate court will not disturb a verdict and judgment, because of the refusal of the trial court to admit evidence, offered after the conclusion of the introduction of evidence by both plaintiff and defendant, unless it appears that the trial court, in so doing, abused its discretionary powers, by refusing to allow an act in furtherance of substantial justice, (p. 222.)</p> <p>18. Taxation — Forfeiture of Land — Non-Payment of Taxes — Disposal of Lands — Rights of Purchaser — Enforcement—Instruction—Evidence to Sustain.</p> <p>In an action of ejectment in which the plaintiff claims the title of the defendant by transfer, as a person made eligible by payment of taxes, without having possession of the land, by force of section 3 of Article XIII of the Constitution, and has introduced evidence showing the land to have been sold to the State in the year 186!) in the name of a person under whom the defendant claims, for nonpayment of taxes charged thereon for the years 1867 and 1868, under proceedings fatally defective so that the title was not thereby acquired by the state, if is error to instruct the jury on the theory of title in the state by purchase at such sale. (p. 222.)</p> <p>19. Same</p> <p>When, in such action, the evidence shows forfeiture of the defendant’s title by non-entry for taxation before the year 1884, and a redemption made from such forfeiture in said year by one under whom he claims, and there is no evidence of such forfeiture after the redemption, it is error to instruct the jury on the theory of a forfeiture and transfer of title occurring after said year. (p. 222.)</p> <p>20. Tbial — Instructions.</p> <p>Mere verbal inaccuracies in an instruction, the ordinary and common sense meaning of which is plain, do not render it improper, (p. 223.)</p> <p>21. ACKNOWLEDGMENT — Deeds—Proof of Execution</p> <p>A deed, the execution of which is not proved otherwise than by a certificate of acknowledgment, signed by the grantee, as clerk of a county court, is properly rejected when offered as evidence, (p. 229.)</p> <p>22. Same.</p> <p>A deed, the execution of which is not proved otherwise than by a certificate of acknowledgment, reciting that it was acknowledged by the grantor before his deputy, as such deputy, and signed by the grantor himself, as clerk of a county court, is inadmissible as evidence, and was properly rejected by the trial court, (p. 229.)</p> <p>23. Deed — Description.</p> <p>A deed is void for uncertainty, which describes the land not otherwise than as follows: “All that certain tract or parcel of land situate in McDowell county, West Virginia, on King’s Branch, Peggy’s Pork and Laurel Creek, all tributaries of the Dry Pork of Tug River, supposed by estimation to contain one hundred acres be the same more or less.” (p. 229.)</p> <p>24. Evidence — Pedigr e.</p> <p>The recitals of a deed nearly sixty years old, as to the pedigree of the grantors, are evidence against strangers, (p. 232.)</p> <p>25. Same — Ancient Deeds.</p> <p>An ancient deed, made by a commissioner to the heirs of a deceased purchaser of land, under an order of sale in a proceeding to sell it as forfeited for non-payment of taxes, reciting the death of the purchaser, and inheritance by the grantees, is evidence of the facts recited, against strangers, (p. 233.)</p> <p>26. Taxation — Nonpayment of Taxes — Eoifeiture of Lands — Disposal by State — Rights of Grantee — Enforcement—Evidence.</p> <p>A deed, made by a commissioner, appointed for the purpose, pursuant to a sale of land lying partly in this state and partly in the state of Virginia, made after division of the state, in a suit instituted in the latter stato before the division, to foreclose a mortgage on the land, in which the defendant appeared and answered, admitting the debt and default and consenting to the decree of sale, is admissible as evidence, in connection with the decrees made and entered in the case, to prove a link in a chain of title. By two Judges. (See note by Bhannon, Judge.) (p. 234, 237.)</p> <p>27. Constitutional Law — Due Process of Law.</p> <p>Section 3 of Article XIII of the Constitution of this state is not in conflict with the Constitution of the United States, (p. 230.)</p> <p>28. Same.</p> <p>Section 6 of Article XIII of the Constitution of this state does not deprive any person of property without due process of law. (p. 230.)</p>

<p>1. Forceable Entry AND Detaineb— Questions for Jury — Contract of Sale — Performance—Deficiency in Quantity— Waiver.</p> <p>L. by contract in writing' agreed to sell and convey to B. “or whomsoever he might designate” his land on which he then resided containing 250 acres more or less at the price of $25 per acre, the purchaser to have the right to survey the land. B. turned the contract over to V.-P. Coal Co. which caused the land to be surveyed and by actual survey the same was found to contain 208.03 acres, one line was run “N. 49 45 W, 931 feet to a stake at or near 2 spruce pines on the foot of the hill corner to the small mill tract with the lines of the same,” &c. L. afterwards ascertained that the call for the mill tract was a mistake, that the 2 spruce pines marked as corner was over 500 feet short of the corner of the Mill tract, which excluded 1.54 acres of land intended to be sold to B. Y.-P. Coal Co. caused a deed to be prepared and presented to L. to be executed to itself for the 208.03 acres, when L. informed the Coal Co. of the mistake and that the deed did not include all his land by the description it contained; the vendee elected to accept the deed as written which was executed and delivered, and it paid for the 208.03 acres onty, but took possession of the whole tract. L. afterwards conveyed to W. the 1.54 acres; W. brought his action of unlawful entry and detainer for the 1.54 acres. Whether the vendee had notice prior to the execution of the deed that the description contained in the deed made by actual survey and marked on the ground, excluded the 1.54 acres and that it accepted such deed with notice of that fact, was a question for the determination of the jury. (p. 240, 246.)</p> <p>2. Estoppel — Contract for Sale of Land — Deficiency in, Quantity— Waiver.</p> <p>Where a tract of land has been sold by written contract at a stipulated price per acre, the survey thereof to be made by the purchaser, and the surveyor of the purchaser and the vendor by mistake and by actual survey so run the lines that a part of the tract so sold is excluded from the description contained in the deed and before deed is executed the vendor discovers the mistake and notifies the vendee thereof and the vendee elects to and does accept such deed excluding a part of the tract and pays for the quantity described in the deed according to the courses and distances, as marked on the ground by the surveyor and set in the deed, the vendee will be estopped from claiming that part so excluded. (p. 248.)</p> <p>(Sanders, Jtjd&e, absent being Judge in court below.)</p>

<p>1. PRATO — False Representations — Action for Damages.</p> <p>An action on the case for damages in the nature of a writ of deceit, lies at law against a person for making false and fraudulent representations as to a material matter, whereby another is induced to enter into a contract and by so doing sustains damages, (p. 254.)</p> <p>2. Same — Affirmance of Contract — Action for Deceit.</p> <p>Where a party has been induced to enter into a contract, by such false and fraudulent-representations made by the other party thereto as would entitle the former to a a rescission of the contract, he may, upon discovery of the fraud, affirm the contract and bring his action at law for any damage occasioned by the deceit, (p. 254.)</p> <p>3. Samis — Election liemedies.</p> <p>If a vendor, by fraud practiced on his vendee, has sold what he at the same time warranted — a case of simultaneous contract and tort, — the vendee may have his remedy either upon the practiced deceit, or upon the warranty, as he chooses, (p. 257.)</p> <p>4. Pahtsersiiip — Fraud—Action for Damages.</p> <p>If one partner, having charge of the business and book's of the firm, by making material, false and fraudulent representations to the effect that certain items of charge against others constituted debts owing to the firm, when in fact some of said items had been collected by him, and others were false charges, induced the other partner to enter into a contract finally settling and dissolving the partnership, whereby the latter took over for value as his individual property all of said items of charge, the latter may, upon discovery of the fraud, without rescinding the contract, sue the former at law for any damages occasioned by the deceit, (p. 257.)</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Bill by Julia Crotty against Barbara Effler and others. Decree for plaintiff, and defendants appeal.</p>

<p>1. Building- and Loan Associations — Usury.</p> <p>A contract, made by a building and loan association for an advancement or loan to one of its stockholders upon stock issued to him by such association, is not usurious because it provides for the payment of a fixed monthly premium by such stockholder for a certain stated number of years, or until the earlier maturity of said stock, (p. 27.0 )</p>

<p>1. MORTGAGES — Deed Absolute in Form — Burden of Proof.</p> <p>The burden of proving that a deed absolute on its facéis a mortgage securing a loan, is on the party alleging it. The intention of the parties to the deed at the time it was made is controlling. If,, after the deed was made and the transaction completed, there existed no indebtedness from the grantor to the grantee on account of the consideration for the deed, it is not a mortgage. (p. 280.)</p> <p>2. Same — Bride nee.</p> <p>In a suit to have a deed absolute on its face declared to be a mortgage, the presence of what are termed the indicia of a mortgage, arising from the circumstances attending the trasaction, does, not prevent the consideration of other evidence, both direct and circumstantial, bearing upon the question of the intent of the parties at the time the deed was made; and such other evidence may be of such character, and so potent and convincing as to overcome the weight to be given to any or all the indicia of a mortgage, (p. 280.)</p> <p>3. Same — Question for (hurt.</p> <p>It is for the court to.determine, from all the competent evidence in the case, both direct and circumstantial, including any of the indicia of a mortgage present, whether or not the deed in question was intended by the parties, at the time it was made, to bo amort-gage or an absolute conveyance, (p. 280.)</p>

<p>1. Mechanic’s Lien — Notice—Sufficiency.</p> <p>In a suit to enforce á mechanic’s lien against the property of “Home Brewing Company of Grafton,” the account being for materials furnished to K., principal contractor for the construction and alteration of a building in the City of Grafton on said property, notice being given to, and the mechanic’s lien recorded in the name of “Home Brewing Company,” omitting from the name of said company the words “of Grafton.” Held: An immaterial variance. (p. 284.)</p> <p>2. CORPORATIONS — Actions— Variance.</p> <p>While it is true corporations are mere legal creatures and must sue and be sued in their true corporate names, yet if some words added, omitted, or changed in the spelling, in the true name of the corporation, this is not a fatal variance, if there be enough to distinguish it from other corporations or to show that the corporation suing or being sued is the one intended, (p. 285.)</p>

<p>1. ADVERSE POSSESSION — Color of Title.</p> <p>A contract oí partition in writing under seal partitioning land between tile parties thereto describing and defining' the boundaries of the land to be held by each in severalty, mutually binding themselves to each other in a specified sum that if any of them should lose any of the land so held and improved by him that the others should make it good, and each of the parties enters into possession of the portion so set apart to him and continues in open, notorious and adverse possession thereof, such contract with such possession is‘“color of title.” (p. 293.)</p> <p>2. Estoppel- — Laches—Acquiescence in Pm'tition.</p> <p>One of the parties to such contract who acquiesces therein recognizing the rights of all the parties thereto for a period of over thirty years, is, by his gross laches, estopped from claiming title to the portion set apart to either of the other parties to the partition, (p. 294.)</p> <p>3. Opinion op Circuit Judge — Wot Reversible Error to Malee Part of Record.</p> <p>It is commendable in the judge of a circuit court to file in a cause his written opinion therein, and it is not reversible error to make the same a part of the record in the case. (p. 394.)</p> <p>4. Same — Appellant not Bound to Include in Recoed.</p> <p>In such case, however, the appellant or plaintiff in error is not bound to include such opinion in the record with his application for appeal or writ of error, (p. 394.)</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Action by Jesse C. Coberly against Lummie Earle and others. Decree for plaintiff, and defendant Earle appeals.</p>

<p>1. Street Cbossings — Bqual Bights of Public and Bailroad Company ■Thereto.</p> <p>A street, railroad company has an equal right, with the public, to the use of streets at street crossings. Neither has a superior right to the other, (p. 309.)</p> <p>2. Stkbet Intersections — Speed of Oars Approaching Same — Collisions at — How to Avoid — Negligence.</p> <p>It is negligence for a street car company to operate its cars at such a rate of speed as not to have them under control and to be able to stop them readily as they approach intersecting streets, in case it may be necessary, to avoid a collision or prevent an accident. (p..311.)</p> <p>3. STREET CROSSINGS — Oars Approaching to Gire Warning — Negligence.</p> <p>A street car company should give proper warning of the approach of its cars at street crossings. For a failure to do so it will be guilty of negligence, (p. 311.)</p> <p>4. Same — Speed of Oars at — Negligence.</p> <p>More care is required in operating street cars at street intersections than at other points, and if a street car company at such intersections runs its cars at an excessive and unusual rate of speed, it will be guilty of negligence, (p. 311.)</p> <p>5. Street Railway Track Grossing Same Before Running Oar— When Not Contributory Negligence.</p> <p>It is not contributory negligence for one to attempt to cross a street railway track in front of an approaching car, if in doing so he exercises that judgment and care which a reasonably prudent and careful person would have exercised under like circumstances, (p. 313.)</p> <p>6. Speed or ' Oar — Regulation of, by Municipal Corporations by Ordinance.</p> <p>A municipal corporation may, within reasonable limits, regulate and prescribe the speed at which street cars may be operated over its streets, and when it has done so, by valid ordinance, it will be negligence per se for a street car company to run its cars at a speed exceeding that fixed by the ordinance (p 314.)</p> <p>7. Street Cars Renders to, by City Ordinance, Required — Without, Negligence per se.</p> <p>Where by valid municipal ordinance street cars are required to be equipped with fenders of an approved make, it is negligence per se to operate such cars without such equipment, (p. 316.)</p>

<p>1. Bills axd Notes — Parties—Meetion of Holder.</p> <p>Where one makes a negotiable note, and the payee does not endorse it, and strangers sign their names upon its back, and it is then delivered to the payee, such payee may, in the absence oí. an agreement or understanding that he shall treat those signing the note on its back in a particular manner, treat them as-joint promisors, or as guarantors, or as endorsers,, at his election, (p. 318.)</p>

<p>1. Tbim — Question for Jury.</p> <p>When the issue in an action at law involves the question whether an oral promise is original or collateral, which must he determined from materially conflicting evidence and circumstances and inferences therefrom, and the evidence and circumstances . are such that the verdict of a jury for either party could not he set aside because without sufficient evidence to support it or because plainly against the decided weight and preponderance of the evidence, such question is one of fact to be determined by a jury, (p. 324.)</p> <p>2. Samis — Instructions.</p> <p>In such case, instructions which in effect direct the jury to determine such question from a part only of the proper and material evidence and circumstances, excluding other parts thereof in conflict with the part directed to be considered, are erroneous, (p. 325.)</p> <p>3. Fuauds, Statute Oe — Oral Promise — Intent of Parties.-</p> <p>In determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded. (p. 325.)</p> <p>4. Same — Evidence.</p> <p>In ascertaining such intention, the words of the xiromise, the situation of the parties and all the circumstances attending the transaction should he taken into consideration. ' (p. 324.)</p> <p>5. Same — Or edit Given Third Person.</p> <p>An oral promise to pay for services rendered to a third person is not actionable if the services were rendered wholly or partly upon the credit of an independent original promise or liability of such third person. If any credit whatever was given to such third person at the time the services were rendered so that he was in any degree independently and originally liable, the oral promise of the other party is invalid, (p. 326.)</p>

<p>1. Deeds — Construction—Inconsistent Provisions — Estate Conveyed.</p> <p>A will ox’ deed containing two inconsistent pi-ovisions, one indicating that a life estate only in real estate is intended to be conveyed to a person, and the other giving or granting to such person an absolute and unlimited power of alienation and disposition of such estate in fee simple, will be held to pass a life estate, or the fee simple, as the one or the other may appear to be the primai'y intention disclosed by a consideration of the whole instrument. (p. 332.)</p> <p>2. Trusts — Trust Peed — Estate of Cestui Que Trust — Equitable Estate in Eee Simple.</p> <p>A deed made on the 30th day of July, 1869,.in which C. Leander Zane was the party of the first part, John Morgan, Jr., trustee, was the party of the second part, and Louisa Morgan, wife of John Morgan, Sr., was the party of the third part, whereby Zane conveyed to said trustee a certain tract of land — “to have and to hold the said tract or parcel of land to the said party of the second part upon trust that said trustee shall permit the said party of the third part, to occupy, possess and enjoy the said tract or parcel of land and the rents, issues and profits thereof to take for her sole use and benefit free and clear from all manner of charge and incumbrance of her said husband or any husband she may hereafter take, for and during her life, and upon the further trust that the said party of the second part shall sell or otherwise dispose of the said property at such time. in such manner and upon such terms of credit or otherwise as said party of the third part by writing signed with her name shall appoint and direct, upon this further trust that should the said party die without having directed and completed any sale of said property and her said husband John Morgan survive her, then said party of the second part shall reconvey the said property to the said John Morgan in fee, and upon the further trust that should the said party of the third part survive her said husband and die without having sold said property as here-inbefore empowered, then the said party of the second part shall hold said property intrust for the heirs of said John Morgan” —passed an equitable estate in fee simple in said land to the wife, Louisa Morgan, (p. 329.)</p> <p>3. Same — Limitation Over — Repugnancy.</p> <p>The attempted limitation over after- the death of Louisa Morgan, was inoperative and void for repugnancv and uncertainty, (p. 337.)</p> <p>4. Same — Conven anee by Benefieicvry.</p> <p>After such deed was made, the wife, Louisa Morgan, had full power to convey her equitable estate in fee by deed, in which her husband joined as provided by statute, without direction to, or the intervention of, the trustee named in the deed from Zane. (p. 337.)</p> <p>5. Same.</p> <p>John Morgan, Jr., the trustee, and John Morgan, Sr., having died, and Louisa, the widow, having remarried, a deed made by her and her last husband to her son, James P Morgan, conveying to him all the right, title and interest of said Louisa and husband in and to the land conveyed by the deed from Zane, except the part previously conveyed to Hupp, passed an equitable estate in fee to the son, James P. Morgan, (p. 338.)</p> <p>6. Conveyance oe Legal Title.</p> <p>James P. Morgan is entitled to a conveyance, by a trustee appointed in this suit, in the place of John Morgan, Jr., of the legal title to the land, in which he (James P. Morgan) holds the equitable estate in fee under the deed from his mother and her last husband, (p. 338.)</p>

Application by the State, on the relation of C. W. Dillon, State Tax Commissioner; for a writ of manda/mus to the county court of Braxton County and others.

<p>Application, by the State, on the relation of Charles W. Dillon, State Tax Commissioner, for a writ of mandamus to J. Walter Graybeal, assessor of McDowell county, and the McDowell County Bank.</p>

<p>1. Wills — Construction — Nature of Estate.</p> <p>The will below does not vest in the widow an absolute iee estate, but vests in her a life estate and creates a trust in her as trustee for the benefit of her children, (p. 373.)</p> <p>2. Tbusts — Constructive Trusts — Laches.</p> <p>The defense of laches, though not applying, as a general rule, to an express trust, does apply to a constructive trust, (p. 376.)</p> <p>3. Same — Enforcement.</p> <p>Where a trustee holding under an express trust uses the trust property in the purchase and conveyance of land to another, in violation of the trust and with notice of it, it creates a constructive, not an express trust, in that third person, and laehes wiil apply in favor of such person as a defense against the enforcement of such trust, (p. 376.)</p> <p>4. Adverse Possession — Goal in Place.</p> <p>The statute of limitations, for want of adverse actual possession, does not apply in favor of one claiming coal in state of nature in place, not developed, (p. 377.)</p>

<p>1. Fkaud — Proof of.</p> <p>When fraud is relied upon by a party to sustain bis contention the fraud must be clearly established by proof, (p. 385.)</p> <p>3. Fraud — When not Established.</p> <p>A case in -which-the fraud is not so established, (p. 386.).</p>

<p>1. Ebeor, Writ or — Final Judgment — Necessity.</p> <p>In an action before a justice on a note, on appeal to the circuit court, the jury finds “for the defendant” and the court overrules as well a motion to set aside the verdict and award a new trial as a motion in arrest of judgment, and renders judgment alone for costs, but renders no judgment adjudicating the matters in difference between the parties litigant, a writ of error will not lie, for want of a final judgment, (p. 388.)</p> <p>2. Same — Jurisdiction of Supreme Court.</p> <p>In such case the appellate court has not jurisdiction to extend the judgment into a final judgment in favor of the defendant in order to pass upon the alleged errors of the court in the trial of the case. (p. 389.)</p>

Bill by Henry Spies. and others against the Arvondale & Cleveland Railroad Company and others. Decree for plaintiff, and the Arvondale & Cleveland Railroad Company and the Welch Colony Railroad Company of West Virginia appeal.

<p>1. MANDATORY Injunctions — Necessity and Extreme Hardship.</p> <p>Mandatory injunctions are seldom allowed before final hearing, but, in cases oí necessity and extreme hardship, they may be awarded at the inception of the suit and without notice, (p. 401.)</p> <p>2. Preliminary Injunction.</p> <p>The function of a preliminary injunction, whether it be prohibitory or mandatory, is to preserve the status quo until, upon final hearing, the court may grant full relief, (p. 403.)</p> <p>3. Status Quo — Erroneous Conclusion, .</p> <p>In awarding such an injunction, the court must determine, provisionally, what the status quo is, and an erroneous conclusion as to it, resulting in the awarding of an injunction, not warranted by the allegations of the bill, but within the power of the court to award upon sufficient allegations, is judicial error, but not usurpation, or abuse, of judicial power, (p. 403.)</p> <p>4. Erroneous Decision.</p> <p>The power of a court to decide erroneously, respecting matters within its jurisdiction, isas clear and undoubted as its power to decide correctly, (p. 403.)</p> <p>5. Jurisdiction — Excess.</p> <p>If, in the progress of a pending cause over which a court has jurisdiction, as to both subject matter and parties, or at the inception thereof, an order, judgment or decree is entered which, for any reason, the court has no power to enter, the entry thereof is an act in excess of the jurisdiction of the court, (p. 404.)</p> <p>6. Same — Bona Fide Claim of Title.</p> <p>A preliminary injuction which deprives a party to the suit in which it is awarded of his possession of property, real or personal, under good title, or a bona fide claim of title, without a hearing, is null and void, the awarding thereof being an act in excess of the jurisdiction of the court, (p. 405.)</p> <p>7. Jurisdiction— Want of Same — Subject of Inquiry.</p> <p>Invalidity of a judgment, order, decree, or proceeding, on the ground of want of jurisdiction in the court, may often be ascertained and declared, without showing that it works a breach, or violation, of any constitutional guaranty. Ordinarily the subject of inquiry in such cases is the limit of the power of the court rather than the nature and extent of the injury done. (p. 405.)</p> <p>S. INJUNCTION— Void — Disobedience—Contempt.</p> <p>Disobedience of an injunction, void for want of jurisdiction in the court or judge, awarding it, is nota contempt, (p. 409.)</p> <p>9. Contempt Proceedings — Writ of Prohibition.</p> <p>Contempt proceedings, based upon disobedience of a void injunction, may be prevented by the writ of prohibition, (p. 409.)</p> <p>10. PROHIBITION.</p> <p>A court cannot hear and determine, as a criminal charge, a matter that would not constitute an offense, if charged in such form as would be good and sufficient pleading, if it were punishable. Such action may be prevented by prohibition, (p. 409.)</p> <p>11. Vacation Injunction — Refusal to Obey — Contempt.</p> <p>Kefusal to obey an injunction, awarded in vacation, may be punished, as a contempt, in the vacation of the court, by the judge in whose court the injunction is pending, (p. 411.)</p> <p>12. Prohibition — Jurisdiction—Non-Jurisdiction.</p> <p>Prohibition is not available as a remedy on the ground of the lack of a right of review of the action of the court sought to be prohibited. If it has jurisdiction and the law makes its decision final, no power to interfere by prohibition exists. If it has not jurisdiction, prohibition is the special, peculiar and appropriate remedy for preventing action, and, if it is not prevented, the order, judgment or decree will be void and may be disregarded, (p. 412.)</p> <p>13. Preliminary Injunction — Restraining Use of Property — Court of Equity — Power of Same.</p> <p>The granting of a preliminary injunction, without notice, merely restraining the use of the property of a party, and not depriving him of its possession, on a bill setting up colorable ground therefor, is not beyond the power of a court of equity, however erroneous the act of awarding it may be. (p. 412.)</p> <p>14. Appeal and Suppersedeas.</p> <p>An order of a judge, endorsed on a petition for an appeal from, and supersedeas to, an order refusing to dissolve an injunction, the prayer of which is “thatan appeal and supersedeas maybe allowed” the petitioner “staying said injunction,” reading as follows: “Appeal and supersedeas allowed as prayed for in the foregoing petition,” does not, upon a proper construction thereof, purport to be an order staying the injunction. Its legal purport is merely the granting of an appeal and supersedeas. - (p. 412,)</p> <p>15. Same — Perfecting of — Operation.</p> <p>■ The perfecting of an appeal from an order refusing to dissolve an injunction, together with a supersedeas, does not stay the operation of the injunction, nor deprive the court belov? of power to punish a party for his contempt in refusing to obey it. (p. 412.)</p>

<p>1. Usury — Cancellation of Deed — Usurious Consideration.</p> <p>A conveyance of land, founded upon compensation for the use of borrowed money, in excess of the rate of interest allowed by law,, as the sole consideration therefor, will be set aside in equity, (p. 418.)</p> <p>2. Same — Conveyance as Collateral Security.</p> <p>When such conveyance is collateral to the loan, and notes for the full amount of the money lent, including interest thereon at the full legal rate, have been executed by the borrower and payment thereof secured by a deed of trust, and, before suit is instituted to set aside the deed, the money borrowed and all legal interest thereon has been paid in money, the value of the real estate conveyed will not be treated as a credit on the debt or the legal interest thereon,-, as of the date of the conveyance, and the borrower thereby limited to a recovery in money, (p, 419.)</p> <p>3. Same — Remedies of Parties.</p> <p>In the enforcement of the statutes for the suppression of usury,, courts do not disturb, overthrow or annul contracts to .an extent beyond the necessity of the case; but there is no restraint upon their power to treat principal and collateral transactions, entered into with intent to evade the law against usury, as a single transaction, when enforcement of the statute, liberally construed, renders such action necessary, (p. 420.)</p> <p>4. Same.</p> <p>Since the statute of this state nullifies usurious contracts only to-the extent of the interest stipulated for or taken, in excess of the legal rate, when the payment of such excess, or the agreement to pay it, has been made, by express agreement of the parties, wholly collateral to the principal transaction, the proceeding for relief, either at law or in equity, may be limited to the collateral payment,, delivery, transfer, conveyance, or agreement. When the illegal, has been so separated from the legal, part of the transaction, courts, will not unite them, if relief can be given without doing so, nor is either of the parties entitled to have them treated as a single transaction. (p. 420.)</p> <p>5. Same — Delay in Seeking Relief.</p> <p>Delay, for a period of three years after the payment of the debt and interest, in suing to set aside a conveyance, the sole consideration whereof is usurious interest, does not bar relief, as between the parties thereto, under the operation of either the statute of limitations or the principle of laches, although there has been an appreciation in the value of the land, not due to any outlay in money or labor on the part of the grantee, (p. 422.)</p>

<p>1. Summoks — Sufficiency on Face — Contradiction.</p> <p>If a return of service of a summons commencing a suit is sufficient on its face, such facts stated therein, as it was the duty of the officer to set forth in it, cannot be put in issue by either a plea in abatement or a motion to set aside a judgment by default. For reasons of public policy, contradiction of such returns is not permitted in any form, except upon allegations of fraud or collusion, (p. 426.)</p> <p>2. Writ op Eejrob — Insufficiency of Declaration not Ground of Frror.</p> <p>On a writ of error to a judgment by default, after an unsuccessful motion to set it aside, made pursuant to section 5 of chapter 134 of the Oode, without in any way challenging the sufficiency of the declaration, insufficiency thereof cannot be assigned as ground of error, if the matter therein set up be such as, if well pleaded, would constitute a cause of action, cognizable by the court, when sitting as a court of law. (p.425.)</p> <p>3. Natural Gas — Bseape of from Abandoned Well Causing Injury to Land — Damages.</p> <p>For injury to land, caused by the escape of natural gas from a well thereon, drilled and abandoned by a lessee of the land for oil and gas purposes, the lessor has a right of action for damages against the lessee, (p. 427.)</p>

<p>1. Exception.</p> <p>Where an exception was saved to the ruling of the court in a general bill of exceptions certifying all the evidence, admitting evidence claimed to be inadmissible but is not made the subject of a special bill of exceptions, being saved in that way and insisted upon in his brief, by the objecting party, it is proper to be reviewed and considered by the appellate court, (p. 430.)</p> <p>'2. Motion to Exclude — Warned by Defendant.</p> <p>Where, after the plaintiff has introduced all his evidence, a motion of the defendant to exclude from the jury all the plaintiff’s evidence has been overruled, defendant proceeds to introduce his evidence in defense, the appellate court wtll disregard said motion, as having been waived by the defendant, notwithstanding the exception to such ruling is made the subject of a separate bill of exceptions, and will not reverse the judgment, for that cause, (p. 430.)</p>

<p>1. Eminent DomaiN — Talcing of Land — Action for Damages.</p> <p>Evidence of the talcing- and appropriation of land is admissible under a declaration which alleges that the defendant laid its railroad track along and upon the property of the plaintiff, (p. 443.)</p> <p>2. Tbial — Instructions—Modifications.</p> <p>One offering an instruction is entitled to have it given in his own language, if it correctly propounds the law applicable to the case, where there is evidence to support it, and where it is not misleading, obscure or confusing, (p. 444.)</p> <p>3. Appeal — Harmless Error.</p> <p>Where such instruction is refused, but modified and given, it is not reversible error, if it clearly appears that the instruction, when modified and given, is the same, in legal effect, as the one so offered and refused, (p. 444.)</p> <p>4. Eminent Domain — Construction of Railroad — Action for Damages.</p> <p>The measure of damages for injury to land resulting from the construction of a railroad, is the diminution of the value thereof immediately after the construction of the road as compared with its value immediately before such work, assuming such construction to be an instantaneous act; but in determining the value immediately after the construction, the increase, if any, on account of general benefits arising from the construction and operation of the road should be deducted from, and all peculiar benefits derived should be added to, such value, (p. 446.)</p> <p>5. Same — Compensation.</p> <p>Where land is taken by a railroad company, peculiar benefits cannot be set off against the value of the land so taken, but the compensation to be paid the owner is the true market value thereof. Benefits can only be set off against damages to the residue of the tract, (p. 447.)</p>

<p>1. Trial by Court.</p> <p>When a case is tried by a court in lieu oí a jury, its finding-will not be disturbed by this Court unless it is against the plain and decided preponderance of the evidence, or wholly without evidence to support it. (p. 450.)</p> <p>2. Evidence — Plea of Payment.</p> <p>The plea of payment is sustained by the evidence, and the court committed no error in finding for the defendants, (p.. 455.)</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by Will Thompson against James Id. Adams and others. .Decree for plaintiff, and Oliver P. Boughner, defendants appeal.</p>

<p>1. Equitable Estate — Owner in Fee.</p> <p>By the provisions oí a deed, land is granted to a trustee-for the use and benefit of the grantor, and to collect the rents, issues and profits and to pay the net amount thereof, after paying taxes, costs of insurance and repairs, to the grantor as demanded during his life, and there is reserved to the grantor the absolute and umlim-ited power of disposition of the land in fee; and the trustee is directed to convey the land to such person or persons as the grantor may designate, and, upon the death of the grantor, to convey any residue of the land that may then be unconveyed to the children of the grantor or their decendants; and upon consideration of the whole deed it appears that the intention to reserve to the grantor the absolute and unlimited power of disposition of the land in fee simple is paramount to and intended to prevail over, an >> words of the deed indicating that a life estate only in the land is reserved to the grantor. Held: the grantor after making such deed remains the owner of at least an equitable estate in fee simple in the land. (pp. 470, 471.)</p> <p>3. Same — Widow’s Dower.</p> <p>The widow of such grantor is entitled to dower in said land, when it appears that he was the owner of such perfect equitable estate in fee simple during coverture, (p. 472.)</p>

<p>1. Hotchpot — Advancement to Descendant — Time Suit May be Entered.</p> <p>A descendant, who has received an advancement from a person dying intestate as to his estate or any part thereof, is not compelled to await the expiration of a year from the date of the order appointing the first personal representative of such intestate, before instituting a suit in equity for the purpose of bringing the estate into hotchpot under section 13, chapter 79, Code 1906. (p. 476.)</p> <p>2. INJUNCTION — General Buie as to Dissolution — Plaintiff’s Equity.</p> <p>While the general rule is that an injunction will be dissolved if the answer fully, fairly, distinctly and positively denies the material allegations of the bill upon which the injunction is based, in the absence of proof of such allegations; yet there are numerous exceptions to this general rule, and where such answer has been filed, and it nevertheless appears from a consideration of the pleadings, and affidavits or proofs if any, together with the circumstances of the case, that there is a strong presumption or a strong probability of the existence of plaintiff’s equity, it is error to dissolve an ancillary injunction awarded to preserve the status quo of the subject matter of the litigation, in advance of a hearing on the merits, (p. 476.)</p> <p>3. Same— Continuing — Hu/i'dslivp.</p> <p>The exception to the general rule just stated applies with peculiar force where no great hardship can come to the defendant by continuing the injunction, and great hardship will come to the plaintiff by its dissolution if his equity is finally established, (pp. 478, 503.)</p>

<p>1. Appeal — BecorU—Bill of Exceptions.</p> <p>A bill of exceptions to the opinion of a county court under section 48, chapter 39, Code 1906, is a part of the record, if the record shows that the bill was signed by the commissioners or a majority of them at the same term of court at which the trial took place, although the record fails to show that the bill was otherwise noted thereon, (p. 481.)</p> <p>2. Same.</p> <p>Under section 9, chapter 131, Code, 1906, a bill of exceptions signed by a judge in vacation within thirty days after the adjournment of the term is not a part of the record, unless the judge also certified the bill, and the order certifying it was recorded. (p. 482.)</p>

<p>Application by State of West Virginia, ex rel. C. W. Dillon, State Tax Commissioner, for a writ of mandamus to B. E. Bare and S. T. Carter, Assessors, Fayette County.</p>

<p>1. Injunction — Motion to Dissolve.</p> <p>Upon the hearing of a motion to dissolve an injunction before' answer, the allegations of the bill must be taken as true. (p. 518.)</p> <p>2. “Anti Trust Law” — Illegal Contracts.</p> <p>Before a contract can be declared illegal by reason of the act of Congress known as the “Anti-trust Law,” passed July 2, 1890, it must appear.that the contract is clearly within the provisions of the act. (p. 518.)</p> <p>3. Contract — ResPraint of Trade.</p> <p>A contract which is in unreasonable restraint of trade is void at common law, because contrary to public policy, (p. 519.)</p> <p>4. Same — Restraint of Trade Defined.</p> <p>A contract, combination or trust among various producers and sellers of a commodity, the direct and necessary or natural effect of which is to restrain competition and control the prices of such commodity, is in unreasonable restraint of trade, and void at common law because contrary to public policy, (p. 519.)</p> <p>5. Same— Things Considered in Determining Contract in Restraint of Trade.</p> <p>In determining whether or nota contract or combination is in unreasonable restraint of trade, the subject matter of the contract or combination, the situation of the parties and all the circumstances attending the transaction should be considered, (p. 519.)</p> <p>6. Same- — Commodity.</p> <p>In determining whether or not a contract or combination is in reasonable restraint of trade, it is immaterial whether or not the commodity which is the subject matter of the contract or combination is of prime necessity, if the commodity is an article of legitimate trade or commerce, (p. 522.)</p> <p>7. Unreasonable Restraint oe Trade — Determined by What May be Done Under Contract.</p> <p>In determining whether or not a contract is in unreasonable restraint of trade, all the powers of the contract should be considered, and its character determined not alone by what has been done under it. but by what may be done under it when all of its powers shall have been fully exercised, (p. 524.)</p> <p>8. Same — Change in Prices of Subject of Contract.</p> <p>It is no defense to the illegality of a contract or combination which is in unreasonable restraint of trade to show that the prices of the commodity which constitutes its subject matter have not been changed, or even that such prices have been lowered, (p. 525.)</p> <p>9. Same — Partial.</p> <p>. Unreasonable restraint of trade which is only partial is illegal. (p. 525.)</p> <p>10. Same— Monopoly.</p> <p>In order for a combination or trust to be in unreasonable restraint of trade, it is not necessary that a complete monopoly be formed. The combination or trust is in unreasonable restraint of trade if it tends to monopoly and is to the injury of the public. (p. 525.)</p> <p>11. Same — Contract Void.</p> <p>If a combination or trust is illegal because in unreasonable re-, straint of trade, the contract whereby such combination or trust was effectuated and established is void, because in unreasonable restraint of trade, (p. 525.)</p> <p>12. Same — Enforcement.</p> <p>The courts will not enforce such contract between the parties to it, because of its void character, (p. 529.)</p> <p>13. CONTRACT Under Consideration.</p> <p>The contract, the form of which is set out and referred to as “contract B” in the opinion below, is in unreasonable restraint of trade and void because against public policy, (p. 529.)</p> <p>14. Preliminary Injunction' — Motion to Dissolve — Equity of Bill.</p> <p>Where there is no equity in the bill, a motion to dissolve a pre liminary injunction should be sustained, (p. 532.)</p>

<p>1. Appeal — Appealable Judgment.</p> <p>A judgment improperly abating an action upon a ground which precludes further proceedings, isfappealable. (p.534.)</p> <p>Same — Jurisdiction— Constitutional Question.</p> <p>A judgment founded upon an erroneous construction of a statute, which makes its enforcement conflict with constitutional guaranties, involves the constitutionality of a law, and is, therefore, reviewable, without regard to the amount in controversy, (p. 535.)</p> <p>3. Statutes— Construction.</p> <p>Whenever an act of the legislature can be so construed and applied as to avoid conflict with a constitutional provision, and give it the force of law, such construction will be adopted, (p. 536.)</p> <p>4. CORPORATIONS — Foreign Corporations Doing Business in this State.</p> <p>A foreign corporation, which sells and delivers goods, merchandise, machinery or other articles of trade and commerce in this State, upon orders taken therefor by its agents and traveling-salesmen, and forwarded to it, and not otherwise, and transacts no other business in the State, does not transact or carry on business in this State, within the meaning of section 30 of chapter 54 of the Code, as amended by section 31 of chapter 35 of the Acts of 1901, and is not required to comply with the provisions of said statute, nor denied by it the power to bring and maintain suits and actions for the enforcement of such contracts, (p. 536.)</p>

Action by John Hogan, administrator of the personal estate of Laura Layne, against J. T. Piggott and another. From a decree dissolving an injunction, plaintiff' appeals.

<p>1. Judgment — Motion for Judgment — Notice.</p> <p>A notioe of a motion for judgment, under authority conferred by section 6 of chapter 121 of 'the Code, must indicate, with reasonable certainty, that the demand or obligation, which it is proposed to reduce to judgment, is that of the defendant; and, if it does not, the court should quash it on motion, made in proper time, (p. 559.)</p> <p>2. Same — Insufficiency of Notice — Oyer of Instrument.</p> <p>Insufficiency of a notice of a motion for judgment, under said section, for the amount due upon a note not under seal, is not cured by the reading of the note as upon oyer thereof demanded. As profert cannot be made nor oyer demanded of an unsealed instrument, such a paper cannot be made a part of the pleadings in that way. (p. 559.)</p> <p>3. Same — Quashing Notice.</p> <p>Failure to comply with the statute in respect to the docketing of such a notice is not cause for quashing it. (p. 560.)</p> <p>4. Same — Misdescription in Notice.</p> <p>If the person giving such notice correctly describes himself therein as the payee of the note, the word “assignee,” added to his signature to the notice, may be ignored as a mere misdescription of the person, not of the note, and will not sustain an exception on the ground of variance, (p. 559.)</p> <p>5. Same.</p> <p>Such addition does not vitiate the notice or preclude judgment in favor of the plaintiff in the capacity accorded him in the body of the notice, (p. 560.)</p>

<p>Appeal from Circuit Court, Obio County.</p> <p>Action by the town of Fulton against William Norteman. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Rapb — Indictment—Sitfficiency.</p> <p>An indictment charges that defendants “in and upon one Martha Harbert * * * feloniously did make an assault and her, the said Martha Harbert * * * did ravish and carnally know;” is not bad ior failing to aver that Martha Harbert is a female, (p. 577.)</p> <p>2. INDICTMENT — Sufficiency—Name of Accused.</p> <p>An indictment names a defendant as “Charles Foyles, commonly called ‘Happy Jack’ ” is not bad because of the use of the words “Happy Jack-.” (p. 578.)</p> <p>3. Rape — Chastity of Prosecuting Witness.</p> <p>As to evidence of reputation of a prosecutrix upon an indictment for rape touching her chastity, (p. 578.)</p> <p>4. CRIMINAL Law — Joint Indictment — Separate Trials.</p> <p>There is no error in a separate trial of one defendant on an indictment for felony against several simply because the record does not show that the state asked a separate trial, (p. 579.)</p> <p>5. Same — New Trial.</p> <p>A new trial in a felony case will not be granted upon affidavit that the prosecutrix giving evidence of the crime of rape upon her has since admitted that the accused was innocent. Her own affidavit making such admission cannot be used to obtain such new trial, (p. 579.)</p> <p>6. Same — Statement of Prosecuting Attorney.</p> <p>It is not error for a prosecuting attorney in an opening statement to the jury on a felony trial, to state the facts which he expects to be shown by the evidence, (p. 580.)</p>

<p>1. Criminal Law — Trial—Absence of Accused</p> <p>If evidence is falcon on a felony-trial in the absence of the accused, though it does not appear what the evidence was, a new trial must be granted, (p. 583.)</p> <p>2. Rape — Evidence—Reputation.</p> <p>In a prosecution for rape evidence may be given to prove the general reputation as to unchastity of the prosecutrix, or that she was a common prostitute, to show her consent to the act, but not to establish her incredibility as a witness, (p. 585.).</p> <p>3. Criminal Law — Instructions.</p> <p>The mere failure of an instruction to say that the evidence must prove guilt “beyond a reasonable doubt” will not reverse, (p. 586.)</p>

<p>Divorcis — Desertion—JSvidenee'</p> <p>A caso where a husband is entitled to divorce for desertion, (p. 587.)</p>

<p>1. COUNTIES — Removal of County Seat — Special Election.</p> <p>Where a vote upon the question of the removal of the county-seat of a county has been taken at a general election, under the provisions of section 15, chapter 39, Code 1906, Annotated, and the election on such question has been, upon the hearing of a contest as to the result of such vote, by the county court held to be ‘ ‘not legally held and returned, and was invalid and void;” it is competent, while such final decision and judgment remain valid, and unquestioned by legal proceedings to review the same, for the county court, upon receiving the petition of the requisite number of legal voters of their county asking therefor, to order the holding of a special election for said purpose in a subsequent year in which no general election is held as provided in said section, (p. 589.)</p> <p>3. Bonds — Presumptions.</p> <p>In the absence of anything showing a different intention in the giving of a statutory bond, it will be presumed that the intention of the parties was to execute such a bond as the law required. tp. 596.)</p> <p>3. Same — Construction.</p> <p>So, where a bond is given under the authority of a statute, that which is not expressed but should have been incorporated, is included in the bond, while that which is not required by the statute is excluded, if it is sufficiently clear from the bond itself that the intention of the parties was to comply with the law in its execution. (p. 596.)</p> <p>4. Same.</p> <p>Reedy. Hedges, 16 W. Va. 167, (Syl. point 4!) Eurmture Co. v. McGuire, 46 W. Va. 328, (Syl, points 2, 3 and 5); and Statev. Wotring, 56 W. Va. 394, (Syl. point 2) approved and applied, (p. 596.)</p> <p>5. Counties — Removal of. County Seat — Petition.</p> <p>When the citizens of a county desire the re-location of their county seat and file with the county court their petition under the provisions of said section 15, and said petition is signed on several separate papers all to the same effect and naming the same place to be voted for as the place at which the re-location shall be made, such several separate papers,without regard to the number thereof, constitute together one petition only. (pp. 598, 599.)</p>

<p>1. Appeal — Dismissal—Renewal.</p> <p>When an appeal has been dismissed for failure on the part of the appellant to deposit with the clerk of the appellate court within six months after his case has been docketed, a sufficient amount to pay for printing the record, as provided by section 18, chapter 135, Code 1906, Annotated, such appeal may be renewed at any time within two years from the date of the judgment, order or decree appealed from. (p. 602.)</p> <p>2. Same — Review.</p> <p>When an order is appealed from, within the time provided by the statute, and the error complained of is based solely on an appeal-able order not reversed or appealed from, entered more than two years before the appeal is taken, such error cannot be reviewed, (p. 603.) '</p> <p>3. Same — Reversal.</p> <p>When an order for the payment of money is so appealed from and is based solely on a former order making an allowance to attorneys to be paid from the estate of a decedent which former order is null and void, although entered more than two years before the appeal is allowed, the order so appealed from will be reversed, tp. 606.)</p> <p>4. Motions— Void Order.</p> <p>A void order is not made valid by lapse of time and ever remains without effect as completely as if never entered, (p. 607.)</p>

<p>1. Mandamus — Redemption of TmuO..</p> <p>A. decree of the circuit court of Wyoming county, in so far as-it adjudicated the right of K. to redeem a certain tract of land and fixed the boundaries thereof, was affirmed by this Court and the cause remanded with a direction to the court below to allow K. to redeem such parts of the'boundary as he should designate by petition for that purpose. The cause was removed to the circuit court of Marion county, in which K. presented his petition for the redemption of five certain tracts of land, within the boundary lines fixed by the decree, and not claimed by any person who was not a party to the suit when the decree was pronounced, and said court refused to allow the petition to be filed. Upon an application by K. for a writ of mandamus to compel the juflge of said court to allow him to redeem said five tracts, the writ was. awarded to compel reception and consideration of, and action upon, said petition. Judges Brannon and Poffenbargusr were of opinion that the plaintiff was entitled to a writ commanding the judge to allow redemption, (p. 610.)</p> <p>(Sanders, Judge, Absent.)</p>

<p>1. Vendor and Purchaser — Conveyance—Deficiency—Abatement in Price.</p> <p>Where a purchaser of land seeks an abatement oí the purchase money on the ground oí a deficiency in the quantity of the tract, the burden is upon him to establish such deficiency, and unless he does so by sufficient evidence, no abatement can be decreed, (p. 010.)</p>

<p>1. Justices oe the Peace — Actions on Notes.</p> <p>The holder of several promissory negotiable notes, constituting separate demands, may maintain separate actions before a justice of the peace upon such notes where the amount of each does not exceed the jurisdiction of a justice, and where, if consolidated, the aggregate amount thereof would exceed such jurisdiction, (p. 619.)</p> <p>'2. Same — Consolidation of Claims.</p> <p>Section 48, chapter 50, Code 1899, section 1999, Anno. Code 1906, providing that where a plaintiff has several demands against the same defendant arising out of contract, express or implied, he must bring his action for the whole amount due and payable, does not apply where the aggregate amount thereof would exceed the jurisdiction of a justice. It only applies where, after the consolidation of all such demands, the whole amount is cognizable by a justice, (p. 619.)</p> <p>■3. Same — Entry of Judgment.</p> <p>Where an action is commenced in a justice’s court by summons, and one of the defendants appears before the return day thereof and waives service and confesses judgment, and the justice does not enter judgment until the return day of the summons, this does not render the judgment void. (p. 634.)</p> <p>4. Same.</p> <p>Quaes'e: Where a defendant appears and confesses judgment before the return day of the summons, can the justice enter judgment immediately, or should he wait until the return day of the summons? (p. 624.)</p> <p>■5. Judgment— Confession — Entry.</p> <p>That part of section 114, chapter 50, Code 1899, section 2065 Anno. Code 1906, which provides that when a judgment is confessed it shall be entered without delay, is directory and not mandatory. (p. 624.)</p>

<p>1. LANDLORD and Tenant — Lease—Construction.</p> <p>The word “grant,” “demise” or “ lease,” in a lease for years, creates a covenant in law for good title and quiet enjoyment of the lands demised, during the term. (p. 631.)</p> <p>2. Mines and Minerals — Oil and 6as Lease — Oonstrnotion.</p> <p>The ordinary oil and gas lease, giving the lessee, for a term of years the right to mine and operate for oil and gas, is not a sale of the oil and gas in place, and the lessee has no vested estate therein until it is discovered; but when found, the right to produce becomes a vested right, and when extracted, the' title vests in the lessee, and the consideration or royalty paid for the privilege of search and production, is rent for the leased premises, (p. 635.)</p> <p>3. Same — Rent—Royalty.</p> <p>When a lease is given for the purpose of mining and operating for oil, in consideration of one-fifth of one-eighth of all the oil produced being delivered to the lessor as royalty; and, where, in a division order executed by all the interested parties, fixing and defining their relative interests in the oil produced, the lessor agrees to accept one-fifth of one-sixteenth, and directs the delivery to him of that amount as his portion, he will be estopped to claim more than that amount, as against the parties to said agreement, and those acquiring interests in the lease subsequently thereto, (p. 639.)</p> <p>4. Guardian and Ward — Sale of Ward’s Land — Rights of Purchaser.</p> <p>Where, in a summary proceeding instituted under chapter 83, Code, for the purpose of selling the undivided interests of infants to the oil and gas in certain lands inherited by them from their father, one purchases the interests of the infants sold thereunder, and agrees to pay a stipulated royalty therefor, he will not be relieved from the payment of such royalty, after the sale is confirmed and deed made, on the ground that the father, in his lifetime, disposed 'of one-sixteenth of all the oil and gas produced on said lands; nor can such proceedings be re-opened and corrected, but they are final and conclusive upon all the parties thereto, except for after-discovered mutual mistake of material facts, or fraud, and, where relied upon, such mistake or fraud must be clearly and distinctly alleged and proved, (p. 641.)</p> <p>•5. Same — Title Acquired.</p> <p>A summary proceeding ior the sale or lease of infants’ lands, under chapter83, Code, is a judicial proceeding, and the maxim, cmeat emptor, strictly applies thereto. The court sells only the title, such as it is, of the parties to the suit, and it is the duty of the purchaser to ascertain for himself whether the title of those parties may not he impeached or superseded by some other and paramount title. And the purchaser will not be relieyed from his purchase, .nor from paying the purchase -money, though he has acquired no valid title to the land so purchased, (p. 641.)</p> <p>6. Same — Liabilities of Purchaser.</p> <p>Where, under such summary proceedings, the purchaser, by the terms of the decree and deed, is required to pay to the infants four-fifths of one-eighth of all the oil produced, and the guardian, in their behalf, signs division orders directing that one-half of that amount be delivered to him as the share of the infants, and, in compliance therewith, that amount is delivered to and accepted by the guardian for several years without demanding the full share of his wards, this will not estop the infants from claiming that part of the oil which the guardian did not receive. Nor will those infants who have continued to receive the oil in the same proportion since their majority, be estopped from claiming their full share, (p. 643.)</p> <p>7. Infants — Estoppel.</p> <p>While the doctrine of estoppel in pais applies to infants of years of discretion, for intentional fraudulent conduct, in favor of one who is misled thereby, yet estoppel by contract and for mere silence does not apply to them. (p. 643.)</p> <p>8. Guardian and Wakd— Unauthorized Acts of Guardian.</p> <p>The acts of a guardian, without authority and in excess of his powers, with reference to his ward’s estate, do nut operate as an estoppel against the infants, (p. 644.)</p> <p>9. Mines and Minerals— Oil Lease— Forfeiture.</p> <p>In a deed made by a guardian conveying the oil and gas in certain lands of his wards, it is provided that the lessees, among other things, shall deliver as royalty to the infants, or their guardian, in tanks or pipe lines free of cost to them or their guardian, the proportionate share of the one-eighth of all the oil produced and saved from the undivided interest of the infants in the land sold; and it is further provided that if the purchaser fails to comply with and do and perform all the things required by him to be done and performed, or any of them, then from the time of so failing to perform the same, or any of them, all rights, estates, interests and privileges under the decree and sale shall become forfeited and revert to the infants. Held: That under the facts of this case there was no forfeiture and reversion, and the action of ejectment was properly enjoined, (p. 646.)</p>

<p>1. Bbokees — Bight to Commissions — Contract.</p> <p>Where a contract between the owner of land and a real estate agent provides in substance that, if a party or parties presented by the agent want to buy the land at a price satisfactory to the owner, the agent shall be paid five, per centum commissions, the agent must substantially comply with the contract, by presenting or producing a party or parties, able, willing and ready to buy the land at a price satisfactory to the owner, before the agent will be entitled to commissions, (p. 649.)</p> <p>2. Same.</p> <p>. If the negotiation resulting in a sale of the land was not carried on by the agent bul by the owner, the agent must show that he was the efficient cause of the negotiation resulting in the sale, before he will be entitled to commissions, (p. 649.)</p> <p>3. Same.</p> <p>When the owner voluntarily consummates a sale' and conveys the land, this is conclusive evidence that the price is satisfactory, and that the purchaser is willing and ready to buy. (p. 651.)</p> <p>4. EVIDENCE — Presumptions—Failure to Call Witnesses.</p> <p>There is no presumption against a defendant for failure to call witnesses, or any particular witness, when, the plaintiff, carrying the burden of proof, has not made a prima facie case. (p. 654.)</p> <p>5. Same.</p> <p>Such presumption cannot be used to relieve the plaintiff from the burden of proving his case. (p. 654.)</p> <p>6. Account Stated.</p> <p>There can be no account stated where there is no pre-existing debt or liability, (p. 656.)</p> <p>7. Same — Fffeet.</p> <p>An account stated, in the absence of fraud, mistake, error or omission, determines only the amount of the debt when a liability exists. Alone, it cannot create a liability where none previously existed, (p. 656.)</p> <p>8. Same.</p> <p>Where there is no pre-existing debt or liability, the rendering of an account, to one who keeps it without objection, does not make an account stated, (p. 656.)</p>

<p>1. Delinquent List — Sale, of Land— Tax Deed.</p> <p>There must he a delinquent list before there can he a valid sale of land for delinquent taxes and a valid deed pursuant thereto, (p. 658.)</p> <p>2. Sam® — Evidence and Notice.</p> <p>A delinquent list is the evidence of delinquency, and the notice of delinquency to the owner of the land returned delinquent, (p. 661.)</p> <p>3. Sam® .</p> <p>A paper not purporting' to be a delinquent list, and not containing the heading required by the statute Cor a delinquent list, or other sufficient heading, and containing no means of identifying il. as a delinquent list to a person of ordinary "business ability and understanding, is not in law a delinquent list, and is not cured by section 25, chapter 31, of the Code. (p. 661.)</p>

<p>1. Highways — Public Use — Pipe Lines — Additional Burden.</p> <p>A pipe-line, laid in a public rural highway, under proper authority, and used for supplying the public with natural gas for heating and illuminating purposes, though imposing an additional public service upon the road, is not a uso in excess of the right of the public in such road, and does not impose an additional burden upon the estate in fee in the land. (p. 665.)</p> <p>2. Same.</p> <p>In respcet to the rights of the public in highways, held under valid dedications and acceptances, and the power of the legislature over the same, there is no distinction in this state between the streets of incorporated cities and towns and country roads, (p. 665.)</p> <p>3. Same — Consent of Authorities.</p> <p>Certain rights of use in public highways, owing to their peculiar nature, are dependent upon the will of the authorities having control of the streets and roads, and can be exercised only with their consent and under such restrictions as they, in the exercise of their discretion, may see fit to impose. Among these the right to convey natural gas, for public use, along a highway by means of pipes, laid under the surface, is included, (p. 666.)</p> <p>4. Same — Use by Natural Persons.</p> <p>Permission to so use a public road may be granted, by a county court, to a natural person, (p. 666.)</p> <p>5. Gas — Rights of Qas Company in Highway — Pipe Lines — Enjoining Use — Evidence.</p> <p>In a suit to enjoin the use of a public. road, under permission therefor, granted by a county court, for the purpose of conveying natural gas along the same by means of pipes laid under the surface thereof, for public 'consumption, as a means of producing heat and light, on the ground that the pipes are not maintained, and the gas conveyed by means of them, for such purpose, the plaintiff must allege and prove the. fact; wherefore the defendant may introduce evidence to prove that the pipes are so maintained and the gas so conveyed, in resistance of the effect of the plaintiff’s evidence, under his denial of the allegation of the bill, (p. 667.)</p> <p>6. Equity — Evidence—Bv/rden of Proof.</p> <p>In assailing a prima facie right or title, by a bill in equity, the plaintiff must aver and prove facts sufficient to overcome it. Ordinarily, he cannot otherwise put the defendant to the proof of a perfect, indefeasible title or right, (p. 670.)</p> <p>(McWhoRteR, Judge, Absent.)</p>

<p>1. Intoxicating Liquoks — Sales to Intoxicated Person — Evidence.</p> <p>Ou the trial of an indictment, charging the defendant, as a licensed dealer in spirituous liquors, with having sold or given, to an intoxicated person, such liquors, knowing, or having reason to believe, him to be intoxicated, the State must prove, as a part of her case, that the defendant had such a license, (p. 674.)</p> <p>2. Same — -License.</p> <p>Proof that the defendant obtained, from the county court of the county in which the sale is alleged to have been made-, permission to obtain a license to carry on such business, at the time and place at which the sale is alleged to have been made, and was then and there so engaged, makes &prima facie case against the defendant on the issue, whether he had such license, (p. 674.)</p> <p>S. Same — What Constitutes Intoxication.</p> <p>Intoxication, within the meaning of section 16 of chapter 32 of the Code, is such a mental condition of a person, due to the use of liquor, as attracts the observation of, or becomes known to, others, or gives them reason to believe the person is intoxicated; and the testimony of a by-stander to such a mental state of the person to whom a sale is made will sustain a finding, by a court or jury, on the question of intoxication, (p. 675.)</p>

<p>1. Bailment by Hiking — Deviation from Contract.</p> <p>Tho question whether, when a horse is hired for only a particular trip, it is used for a further trip, such deviation from the contract will alone render tho hirer liable for the horse dying- during the use by the hirer, without proof that its death came from its use for the further trip discussed, (p. 077.1</p> <p>2. Bailment by Hiring — Loss of Animal.</p> <p>If a horse hired to work in a wagon while at work become exhausted and sick, tho hirer, knowing its condition, must desist from so working it, else if if die, he will be liable for its value, (p. 678.)</p>

<p>1. Quieting Title — Jurisdiction—Remedy by Hjectment.</p> <p>One in actual possession of land under superior title may go into a court of equity to remove the cloud over his title arising from a claim under color of title-thereto by another under an inferior adverse title. That he might sue in ejectment does not deny him jurisdiction in equity, (p. 684.)</p> <p>2. Same.</p> <p>When in a contest in ejectment between two adversary titles to land judgment has been rendered in favor of one of them, and the claimant of the adversary title still claims notwithstanding- the judgment against him, and disquiets the actual possession of the successful owner, file latter may go into a court of equity to have injunction and relief, proper in the case, to quiet and g'ive peace to his title and possession, (p. 688.)</p> <p>3. Same — Belief Given. - Injunction.</p> <p>Equity having- jurisdiction to remove cloud over title to land and quiet title may, as incident to relief, enjoin the cutting of timber by the claimant under the bad title, (p. 690.)</p> <p>4. Appeal — Objections Not liaised Below.</p> <p>An exception to the taking- of a deposition made while it is in progress, though noted in the deposition, must be brought to the notice of the court before hearing on the merits begins below by motion to suppress, else it will not be regarded in an appellate court, (p. 693.)</p> <p>5. CANCELLATION op Instkuments — Void Instruments.</p> <p>Equity has jurisdiction to cancel an instrument of title to land at the suit of one in possession under good title, though such instrument be void on its face. (p. 685.)</p> <p>McWhorter, Judge' (Absent.)</p>

<p>1. Husband and Wife — Conveyances Between.</p> <p>A conveyance of land "by a wife to a husband, he not executing it, they living together, is void. (p. 69G.)</p> <p>2. Equity — Laches.</p> <p>Laches is not imputable to one in possession of the land claimed by him. (p.-G9G.)</p> <p>3. Estoppel — Declarations.</p> <p>Estoppel in pais wil not bar the assertion of title to land where the representation comes only from one’s ignorance of his title arising from ignorance of law, and without intent to mislead, (p. 690.)</p> <p>4. Same — By Conduct.</p> <p>To bar one' of his right to land by estoppel by conduct his representation must have been made with intent to mislead, or with reasonable ground to believe that it will so operate, (p. 697.)</p> <p>5. Same.</p> <p>To bind one by estoppel from his conduct he must have reasonable ground to anticipate that another will change his position, or in some way act on faith of it, to his detriment, (p. 699.)</p> <p>6. Same.</p> <p>A guardian, as such, petitions a court to sell land of infants, stating in her petition that her husband died seized of it, and that it descended to his heirs, and sells part under decree in the case. The land, in fact, belongs to her, not to her husband. She is not barred by that suit from asserting her own title to land not so sold conveyed by one of the heirs to a stranger, (p.. 700.) (Sanders, Judge, Absent.)</p>