Volume 63 — West Virginia Reports

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by Milton Wilson against William W. Kennedy. Decree for plaintiff. Defendant appeals.</p>

<p>1. , Quietin'» Title — Bemoval of Gloud — Possession.</p> <p>Mere constructivo possession of land, accorded by law to him who has good title thereto, as a legal presumption, is not such possession as is required on the part of one who invokes equity jurisdiction to remove cloud from the title. Ho must have actual possession of the land in the sense of having a pedis possessio thereon. (p. 16.)</p> <p>2. Equity — Bill of Beview.</p> <p>A bill in the nature of a bill of review cannot be maintained by one who was not a party to the suit in which the decree, reversal or annulment whereof is sought, was made. (p. 16.)</p>

<p>1.RAILROADS — Grants of Rights of Way — Extent and Use of Rights Acquired — Right of Way Annexed to Mining Rights.</p> <p>Railroad rights of way, annexed and subsidiary to mining rights, ■cannot be used for other purposes, such as the business of carrying passengers and freight generally, (p. 20.)</p> <p>2. INJUNCTION — Subjects of Protection and Relief — Railroad on Alining Right of Way — Operation as Ctommon Carriers.</p> <p>Equity-has jurisdiction, independently of the constitutional inhibition of the taking o'f private property for public use, without payment of compensation or security therefor, to enjoin the operation of a railroad, built on a mining right of way, as a common carrier, no possessory remedy at law being available for ejection from the premises, (p. 22.)</p> <p>3. Eminent Domain — Remedies of Owners of Property — Jurisdiction of Equity — Restraining Unauthorized Use of Railroad Rights of Way Granted.</p> <p>The constitutional inhibition of taking private property for public use, without compensation, gives equity jurisdiction to prevent such unauthorized use of a mining right of way or railroad, since the law affords no adequate remedy for the possession and use of the properly, deprivation of which amounts in law to a taking thereof, (p. 23.)</p> <p>4.Equity — Pleading —Answer—Abatement for Want of Parties.</p> <p>An answer to a bill, seeking abatement for want of necessary parties, which fails to aver facts, showing an interest, on the part of the absent party, in the subject matter of the bill, that will be affected by the achievement of the object of the suit, is insufficient for the purpose, (p. 24.)</p>

Action by the state, on the relation of Delia E. McDonald, against I. W. Wells and others. Judgment for plaintiff, and defendant United States Fidelity & Guaranty Company brings error.

<p>.Appeal from Circuit Court, Doddridge County.</p> <p>Bill by Hugh Leonidas Heflin against Creed C. Heflin and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by W. J. Cotts against the Wheeling & Elm Grove Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Judgment — Validity— Unoerta/inty.</p> <p>A judgment that does not show for and ag’ainst whom it is is void for uncertainty. A judgment must show in what case it was rendered, else it is void. (p. 46.)</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by J. Blackburn Ware against Ida B. Hewett and others. Decree for plaintiff, and defendant Hewett appeals.</p>

<p>1. Appeal — New Trial — Review—Exceptions.</p> <p>If there is a motion for a new trial and an exception to its refusal, no exception to the action of the court for entering judgment need he made to authorize the Supreme Court to review the case. (p. 52.)</p> <p>2. Sale — Contract.</p> <p>To malee a contract of sale there must be both a proposal and acceptance of that proposal. The minds of the parties must meet and agree finally upon the sale. (p. 53.)</p> <p>S. Actions — Waiver of Tori — Action in Assumpsit.</p> <p>When a trespasser cuts and sells, or converts to his use, trees growing on land, the owner of the land may waive the tort, and instead of bringing action for the tort, sue in assumpsit and recover on the common count for money had and received, or on a quantum valebat for their value: but he cannot maintain assump-sit when the title to the land is in contest between the parties, (p. 55 )</p> <p>4. Evidence— Opinion.</p> <p>A witness cannot upon a jury trial give his mere opinion or conclusion that he has valid title to land. (p. 58.)“</p> <p>5. Stkangek — No Notice to.</p> <p>No notice to stranger from record of deed. (p. 58.)</p>

<p>1. Quieting Title — Laches.</p> <p>Ladies will not bo imputed to on© in possession of land who re-rts to a court of equity to settle a question of title, as against an adverse claimant who is out of possession, no matter how long his delay, (p. 65.)</p> <p>■2. Vendor AND Pubciiaseh, — Bona Vide Purchaser.</p> <p>It is the duty of one purchasing real estate to examine the records; and, whether he does so or not, he is affected with notice of every fact the knowledge of which might have been obtained from the record, or to which the facts there appearing would have led him. (p. 66.)</p> <p>3. Deed — Description.</p> <p>The main object of a description of land, in a deed conveying the same, is not in and of itself to identify, the land, which it rarely does or can do without aiding evidence, but to furnish the means of identification; if it does this, it is sufficient, (p. 66.)</p> <p>4. Vendor AND PURCHASER — Bona Vide Purchaser — •Notice.</p> <p>Possession of land is sufficient notice to a purchaser, contracting with a claimant, thereof not in possession, to put him on inquiry; and if he takes conveyance from such claimant he will be charged in favor of the person so in possession with all information such inquiry would have given him if diligently pursued, (p. 66.)</p> <p>5. Reformation of Instruments — Deed—Evidence.</p> <p>The evidence required by a court of equity to correct a deed on the ground of mistake must be clear, convincing and free from, reasonable doubt, (p. 67.)</p> <p>8. Deeds — Description.</p> <p>Where the description of land by monuments, distances or otherwise is vague and indefinite, by reason of conflicting lines or omission of a line, or from any other cause, the statement of the acreage is an essential part of the description, (p. 67.)</p> <p>7. Reformation of Instruments.</p> <p>Where an instrument is drawn and executed which professes or is intended to carry into execution an agreement previously entered into, but which by mistake of the draftsman either as to fact or to law does not accomplish the purpose intended, or violates it, equity will relieve from such mistake, (p. 67.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Tug McCoy was convicted of robbery, and brings error.</p>

<p>1. Tiutsts — Express Trusts — Evidence.</p> <p>Where, at the sale of land under judicial decree to satisfy claims of judgment creditors, a third person agrees with the ownor, in consideration of one hundred dollars and repayment to him "by the latter of the purchase money, to bid in the land and convey it to the wife of the owner, such third person is thereby constituted trustee of-an express trust in favor of the beneficiary so designated in said agreement, (p. 76.)</p> <p>2. ArpEAL — Review—bindings of Fact.</p> <p>In equity the finding of any fact by the circuit court will not be disturbed upon an appeal, unless contrary to the plain preponderance of the evidence, (p. 76.)</p> <p>3. Trusts — Express Trusts — Laches.</p> <p>Neither the statute of limitations nor laches applies to express trusts, until and from the time the trustee repudiates the trusts bjr unequivocal word or acts, and such repudiation is so brought to the notice of the beneficiary as to call upon him to promptly assert his equitable rights, ip. 76.)</p>

<p>Error to Circuit' Court, Mingo County.</p> <p>Action by M. Z. White against Eli Sohn. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Hospital — Liabilities—Torts of Employes.</p> <p>A hospital, incorporated and conducted for private gain and for the benefit of the stockholders thereof, is liable in damages to its patients for the negligence or misconduct of its officers and employes. (p. 89.) .</p> <p>2. Same — Gave of Patients.</p> <p>A patient sent to such hospital is entitled to such reasonable care and attention for his safety as his mental and physical condition may require, (p. 90.)</p>

<p>1. Judgment — Res Judicata.</p> <p>A case of res judicata under the facts and circumstances stated in the opinion, (p.,96.)</p> <p>2. ExbcutORS — Accounting—Failure to Sell Land.</p> <p>A will directs the executors to sell land, and give its proceeds, after payment of debts, to eight children, and directs that out of the share of one child $2,000 shall be paid to trustees to pay its interest to that child during life, and at her death the principal to be paid to her children. In a suit to settle the estate, marshal its assets and distribute them for the benefit of creditors and legatees, it is error to charge the executors with that$2,000 by absolute personal decree, by reason of their failure to sell the land, in advance of a sale of land by the court’s decree, the land being the primary means of raising the money, (p. 97.)</p>

<p>1. Pleading — Affidavit—Plea in Abatement.</p> <p>Though a plaintiff in an action of assumpsit has filed with his declaration an affidavit of the amount due him, the defendant may tile a plea m abatement to the jurisdiction of the court without filing the counter affidavit required of a defendant by Code, chapter 125, section 46. (p. 100.)</p> <p>2. Same.</p> <p>Where in an action brought in Taylor county against a single defendant and the summons is directed to Wetzel county, and there served, and there is a plea in abatement to the jurisdiction averring that the defendant resides in Wetzel, it is not bad for failing to aver that the cause of action did not arise in Taylor county, (p. 101')</p> <p>3. Action — Sammons—Plea in Abatement.</p> <p>An action is brought in one county and the summons is directed to the sheriff of another, the summons will be quashed and the action dismissed either on plea in abatement or motion to quash the summons and dismiss the action, no defendant residing in the county of the action, (p. 102.)</p>

Application by the Coal & Coke Railway Company for writ of prohibition against E. E. Taylor, justice of the peace, and others. From the judgment denying the writ, plaintiff brings error.

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by James S. Miller against the Prudential Banking and Trust Company and others. From an adverse decree, defendants appeal.</p>

Suit by S. C. Staley against the Big Sandy, East Lynn & Guyan Railroad Company. From certain degrees reinstating the cause and permitting complainant to file a supplemental bill, awarding an injunction thereon, and refusing to dissolve such injunction on the filing of defendant’s plea of •res judicata, it appeals.

<p>1, Carriers — Express Company — 'Liabilities.</p> <p>Being common carriers, and, as such, insurers of property entrusted to them for shipment, express companies are liable as insurers until after they have performed all that the law or the special contract of shipment lias enjoined upon them. (p. 131.)</p> <p>2. Same.</p> <p>Such insurance is not primary or special in its nature, but only incidental to the contract of carriage and neither begins earlier nor continues longer than is necessary to secure faithful and efficient execution of tire contract of carriage, (p 132.)</p> <p>3 Same — Delivery,</p> <p>/Ordinarily, an express company must make delivery of goods or packages, carried by it-, to the consignee in person at his place of business or residence, or to some person authorized to receive the same, before its liability as a common carrier and insurer thereof ceases, (p. 133.) J</p> <p>4. Same — Special Agreement.</p> <p>But the general rule, respecting the place and mode of delivery, may be modified or set aside by usage or special agreement, under which delivery may be made at the express office or agency; and the duty of the carrier in the premises is then measured by the usage or custom or the terms of the special agreement. (p. 133.)</p> <p>5. Same— Notice of Arrival.</p> <p>Liability as carrier for a package carried to a point at which the established practice is, to make deliveries at the express office or wareroom, on application for the goods, pursuant to notice of their arrival, given by mail, does not terminate until a reasonable time, allowed for removal after the giving of the notice, has elapsed, (p. 133.)</p> <p>6. Same — 'Failure to Give Notice.</p> <p>If the duty to give such notice be omitted and the goods are lost by reason of a cause,. other than one of those for which the law makes an exception in favor of the carrier, such as an act of God, or the like, the carrier is generally held to accountability as an insurer, (p. 134.)</p> <p>7. Same — Liability as Warehouseman — Loss of Package-Liability.</p> <p>But, if failure to mail the notice, when such is the adopted mode of giving it, is not the proximate cause of the delay in removing the package, and the loss would have occurred if it had been mailed, and sufficient time has elapsed for the receipt thereof and removal of the goods, if one had been mailed, and the consignee had exercised reasonable diligence, the carrier is liable as warehouseman only. (p. 135.)</p> <p>8. Saiie —Notice.</p> <p>A consignee who did not call for his mail and would not have received notice of the arrival of his package at an express office, at which deliveries are made only at the office after notice by mail, .cannot hold an express company liable as carrier, for a package which arrived at 4:30 P. M. on Saturday and remained in the office until the following Monday night, when it was stolen, without fault or negligence on the part of the company, (p. 130.)</p> <p>9. Thial — Demurrer to Bvidenoe.</p> <p>When the practice, on the part of an express company at a particular office thereof, to make deliveries only at the office after mailing notice of arrival of packages, is not controverted, and the plaintiff testifies to such practice, respecting consignments to himself, his testimony affords sufficient ground, in the evidence, for an inference that the usage exists, to take the case from the jury, as to that question, by a demurrer to evidence, (p. 138.)</p> <p>10. W AHEHOUSEM an — Negligence.</p> <p>The fact that a building in which a warehouseman stores goods . is not burglar-proof, is not evidence of negligence on his part, in an action against him for their loss by theft, (p. 138.)</p> <p>11. Carriers — Loss of Goods — Negligence.</p> <p>Leaving an express package in the freight room of a railway station, at which the express office is maintained, instead of in a room'thereof in which such packages are usually placed, neither continues or extends liability as carrier, nor amounts to-negligence as warehouseman, (p. 138.)</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Action by Verna Kellar against Nancy E. James and another for slander. From a judgment of dismissal, plaintiff brings error.</p>

<p>1. Deeds — Description—Controlling Effect.</p> <p>A general description of land in a deed which can be made certain by the surrounding circumstances, or identified by reference to the land itself or other objects that, more or less distinctly indicate or determine it, will control a partial and uncertain description by boundaries, if it satisfactorily appear from the terms of the deed, read in the light of the situation of the parties, the subject matter of the deed, and the conduct of the parties, in the negotiation of the contract and their subsequent conduct, respecting the deed and land, that it was the intention of the grantor to convoy the same as so generally described, (p. 148.)</p> <p>2. Same.</p> <p>A deed, executed by a parcener who has made a verbal partition of the land and is in the exclusive possession of part thereof, conveying a portion of the oil and gas therein, and describing the land wherein the oil and gas so conveyed is, as land “owned and controlled” by him, and also in a general, indefinite and incomplete manner as bounded by adjacent lands of other persons, passes title to the oil and gas in that portion assigned to him by the verbal partition, (p. 150.)</p> <p>3. PARTITION — Operation and Effect.</p> <p>In a suit brought by the grantee in such deed for partition 'of the oil produced by a well located on a portion of the land, other than that which was assigned to the grantor by the verbal partition, under a claim of title thereto by virtue of such deed, such grantor may, by reason of the implied warranty obtaining between coparceners, defend and resist the demand for partition of the oil from such well. (p. 151.)</p>

<p>Error to Circuit Court, Webster County.</p> <p>Del Gillispie was convicted of the illegal sale of liquors, „and brings error.</p>

<p>1. Vhndou and Purchaser — Contract—Construction—Option.</p> <p>An agreement dated December 11, 1902, contains the following provisions: “In consideration of one dollar in hand paid and for the further consideration of one hundred and fifty dollars per acre for each and every acre used by said second parties for aE. R. over the premises hereinafter mentioned and to he paid upon delivery of a general ■warranty deed after notice of acceptance by said second parties, * * * * It is further agreed by and between the parties hereto that if a' railroad is not commenced or constructed across said land within twelve months from this date then this contract shall be null and void and of no effect, but on the other hand if the road is commenced or constructed within twelve months from this date, across said land, then said second party shall be entitled to hold said strip of land in fee simple, and said second party ag'rees to pay a reasonable damage if there be any damages done to the buildings now standing, and it is further agreed in the event that the said second parties fail to complete said R. R. within 24 months from this date, then said second parties shall pay to said first party a forfeit or penalty of Two Hundred Dollars for every year said second parties fail to complete said R. R.” No notice of acceptance was ever given by the parties of the second part nor was such railroad commenced or constructed across said land within the time mentioned. Held: Such agreement was an option and not an exe-cutory contract, (p. 164.)</p> <p>2. Same. — Action—Pleading.</p> <p>A. declaration in an actionof asswjrapsitfbroughtonsuch agreement at the end of three years from the date thereof to recover the penalty of $200 for the failure of the defendants for the first year after the expiration of the 24 months to complete said railroad is bad on demurrer, (p. 165.)</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Bill by Fred C. Bade, administrator, against Moses Feay and others. Decree for plaintiff, and defendant Benoni Feay appeals.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Hezeldah Hood was convicted of voluntary manslaughter, and brings error.</p>

Error tó Circuit Court, Wood County. Action by the state, for the use of William Beard, special commissioner, against J. Herndon Abbott and others. Judgment for plaintiff, and defendant, Citizens’ Trust & Guaranty-Company of West Virginia, brings error.

<p>Appeal from Circuit Court, Jefferson County.</p> <p>Bill by the First National Bank of Jefferson against Jennie Thompson and others. Decree for defendants, and plaintiff appeals.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by L. Hansford, trustee, against Sampson Snyder. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Gas — Natural Gas — Oarein Delivery.</p> <p>The duty devolving upon a person or a corporation engaged in furnishing to consumers thereof natural gas for fuel and light is not that of insurer, but to exercise such care, skill and diligence in all its operations as called for by the delicacy, difficulty and dangerousness of the nature of the business, that injury or damage to others may not be caused thereby, (p. 203.)</p> <p>2. Same' — lujuries from Explosion.</p> <p>The application of the rule of res ipsa loquitur depends upon the facts and circumstances of each individual case; but the mere fact of explosion of a gas regulator, which up to the time of the accident had properly performed its functions, is'not a circumstance to which the rule may be applied, (p. 206.)</p>

Action by the Town of Point Pleasant, for the use of Annie Yarian, against John Greenlee and others. From a judgment for plaintiff, defendants bring error.

<p>1. NoNsuit — Judgment—Failure to Prosecute.</p> <p>If a defendant appear and file his plea, concluding with a verification, and the plaintiff does not appear to reply to it, or do what is necessary to bring the cause to issue, there is properly judgment against him non prosequitur, (p. 216.)</p> <p>2. Sams — What Constitutes.</p> <p>Such judgment is a nonsuit, within the comprehensive meaning- of that term as understood and applied in the Virginias, (p. 217.)</p> <p>3. Weit or Error — Judgment of Nonsuit.</p> <p>A nonsuit is .not a final judgment, as regards appealability, and no writ of error lies to it, (p. 217.)</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Suit by John Higgins against the Round Bottom Coal & Coke Company. From decree sustaining demurrers to plaintiff’s original and amended bills, he appeals.</p>

Mandamus by Albert JB. White, state tax commissioner, and others, as relators, to compel Wirt county court to lay levies for county and road purposes in conformity with law.

<p>Appeal from Circuit Court, Logan County.</p> <p>Bill by the Robertson Consolidated Land Company against J. F. Paull and others. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Mingo County.</p> <p>Action by the State against John Stepp and others. Judgment for the State, and Sarah E. Young and Mike Young appeal.</p>

<p>1. Assumpsit — Pleading—Declaration.</p> <p>In an action of assumpsit to recover for money agreed to be paid by the terms of an oil lease as commutation for failure to bore a well, there must either be a special count or a common count in indebitatus assumpsit suitable to the case specifying the ground of action. Ho recovery can be had therefor on the counts in the declaration in this case. (p. 261.)</p> <p>2. Pabtibs — Non-joinder of Plaintiff.</p> <p>Upon a contract to pay a sum of money to two persons they must both .unite as plaintiffs in an action for its breach, if living. Where one sues alone the non-joinder of the other is fatal, and the plaintiff cannot recover, (p. 263.)</p>

<p>1. CONTRACTS' — Rescission—Fraud.</p> <p>' To justify rescission of a contract for fraudulent representation in procurement thereof, such representation' must be a positive statement of a material existing- fact, present or past, made for the purpose of procuring the contract, and actually relied on by the other party, who must be misled thereby, (p. 269.)</p> <p>2. Evidence — Written Contract — Parol Negotiations.</p> <p>In absence of fraud or mistake, when an agreement is reduced' to writing- all previous negotiations resting in parol are resolved into and extinguished by the writing-, it being the highest and safest evidence of the true final agreement of the parties to it. (p. 273.)</p> <p>3. Saiie.</p> <p>This rule would inhibit engrafting on a contract prior or contemporaneous conversations or stipulations, not carried into the written contract, so as to add to or conflict with the agreement spoken by the writing itself, (p. 274.)</p> <p>4. INJUNCTIONS — Action at Laic — Judgment—Discretion.</p> <p>Whether confession of judgment by a defendant at law will be required as a condition of granting him an injunction to restrain the proceeding at law, is within the sound discretion of the court, (p 274.)</p> <p>5. Same.</p> <p>Where such defendant has a legal defense to the action at Jaw on which he relies, as well as a distinct ground for equitable relief, he should not be required to abandon his leg'al defense by confessing-judgment before proceeding in equity to enjoin the action at law. (p. 274.)</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Bill by- W. T. Younger against Isadore Meadows and -others. Decree for plaintiff, and defendants appeal.</p>

<p>Appeal from Circuit Court, Monroe County.</p> <p>Bill by James L. Woodville against Cary Breckenridge Woodville and others. Decree for plaintiff, and defendant Cary Breckenridge Woodville appeals.</p>

<p>1. Appeal — Review—Objections Not Made Below.</p> <p>Alleged errors outside of the case made by the pleadings, or not brought to the attention of the trial court, -will not be considered here. (pp. 297, 298.)</p> <p>2. Municipal Corporation — Ordinances — Validity—Statutory Offenses.</p> <p>A municipal ordinance making it “unlawful for any person within’’ its corporate limits, “by threats, menaces, acts or otherwise, forcibly or illegally, to hinder, obstruct or oppose, or to attempt to obstruct or oppose, or to counsel others to hinder, obstruct or oppose, any officer, in the lawful exercise or discharge of his official duty,” and imposing a fine for violation thereof, is not invalid because the offense described is substantially in the terms of section 17, chapter 147, Code, relating to offenses against public justice. Judy v. Lashley, 50 W. Va. 628, distinguished, (p 298, 299.)</p>

<p>Error to Circuit Court, Barbour County.</p> <p>The United States Express Company was convicted of unlawfully delivering a package containing liquors and brings error.</p>

<p>1. Justice oe the Peace — Appeal—Trial Be Now.</p> <p>Upon an appeal from the judgment of a justice the case is tried de now, the judgment of the justice in no way enters into the consideration, of the case upon the trial. When the appeal is entertained the judgment is no longer of any force, (p. 303 )</p> <p>2. WRIT or Error — Final Judgment.</p> <p>A judgment which merely awards costs to the defendant without more is not a final judgment. In order to have that character it must profess to terminate and completely dispose of the action. Hence, if for thé defendant, the final judgment must state, that he be dismissed without day, or that it is considered that the plaintiff take nothing by his suit, or otherwise refer to the disposition, made of the subject-matter, (p. 302.)</p>

<p>1. Justice of tiie Peace — Appeal—Trial Be Sow.</p> <p>An appeal from the judgment of a justice has the effect in law of transferring the controversy to the appellate court for trial de now; and it is error, on the failure of , the defendant to appear when called, to enter up judgment in favor of the plaintiff without proof, as the burden is on plaintiff to prove his case. (p. 305.)</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by William A. Loar against John Wilfong. Decree for plaintiff and defendant appeals.</p>

<p>1. Equity — Bill—Multifariousness.</p> <p>Whether a bill in equity is multifarious often depends on the particular circumstances of the case, rather than upon any fixed rule of procedure; and when the subject-matter is single and all the parties directly ’interested in it, the objection for multi-fariousqess will be overruled, though the bill asserts two or more grounds of relief and tends to raise two or more issues, affecting the parties in divers ways. (p. 821.)</p> <p>2.. Same — Pleading—Documentary Evidence.</p> <p>Generally it is not necessary to exhibit documentary evidence with the pleadings in a suit in equity, (pp. 321, 322.)</p> <p>3. Receivers — Equity Jurisdiction.</p> <p>Equity jurisdiction for injunction and receivership cannot be defeated on the ground of dispute as to title to the land affected, when, the record being free from controversy as to facts, the question of title is one of law only. (p. 323.)</p> <p>4. Mines astd Minerals — Reservations in Deed — Construction.</p> <p>A clause in a deed reserving to the grantor “the right to all minerals in and under” a certain portion of the land conveyed, not limited or qualified as to intention by any other clause of the deed, or by any facts within the knowledge of the parties which may properly be deemed to have influenced them, embraces and saves to the grantor not only solid minerals such as gold, silver, iron and coal, but petroleum oil and natural gas as well. (pp. 323, 324.)</p> <p>5. Taxation — Forfeiture—Eon-Entry on Land, Books.</p> <p>Forfeiture of the title to minerals in a tract of land for non-entry on the land books cannot be predicated on mere severance in title of the minerals from the surface and lapse of time, since presumptively the land was taxed as a whole when the severance occurred and has since been carried on the-land book in the same manner and the taxes paid. (p. 326.)</p> <p>6. Mines and Minerals— Oil Lease— Termination.</p> <p>A lease for oil and gas purposes may be terminated by express surrender or by a surrender in law, effected by abandonment of the premises by the lessee and resumption of the possession thereof by the lesssor; and whether such surrender in law has occurred is a question of intention, (p.327.)</p> <p>7. Same — Surrender—Evidence.</p> <p>On the following facts, such surrender is held to have been effected: The lease was for a term of five years and as long thereafter as oil or gas should be found in paying quantities or the rental thereon paid. After the development of one paying gas well and several fruitless efforts to find oil, the gas from that well was used until after the expiration of the five year'period, and then the well was disconnected from the gas pipe system as an exhausted well. Thereupon, and more than three years after the last effort to develop more gas or find oil, the lessor executed a new lease to a stranger, under which operations on the land were immediately commenced, (pp. 328, 329.)</p> <p>8. Receivehs — Appointment—Discretion of Court.</p> <p>Though the power of circuit courts to appoint receivers is discretionary, and the exercise thereof will not be disturbed or interfered with by the appellate court, unless it appears to have been abused, such discretion is circumscribed and governed, as to the exercise thereof, by legal and equitable principles, violation of, or departure from, which amounts to an abuse thereof, (p. 334.)</p> <p>9. Same.</p> <p>A receivership is a harsh, drastic and costly remedy, violently disturbing and interfering with the rights of the party whose possession is thereby ousted; wherefore, in order to obtain the appointment of a receiver, the plaintiff must show a clear right to the property, or a lien thereon, or a right to resort to it for satisfaction of a debt, or the like; and, if the allegations of his bill are fully denied by answer and not sustained by evidence, the prayer for a receivership should be refused. ‘ (p. 334.)</p> <p>10. Appeal — Objections not Raised Below.</p> <p>Courts will not tolerate inconsistency in the conduct of litigants. Hence, a defendant to a bill for a receivership of oil wells who, claiming title thereto, allows a decree to be entered placing his tools and machinery, used in and about the same, in the hands of the receiver for operation thereof, without objection, will not be permitted to reverse the decree on that ground. If he desires to withdraw his tools and machinery from the premises, he must ask it in the court below, (p. 330.)</p> <p>11. Same — Supersedeas—Possession by Receiver.</p> <p>A supersedeas does not take effect until the bond required has been given, and, on the giving thereof, it becomes effective only from the time of the filing thereof, not from the date of the allowance of the writ. If, between the allowance of the writ and the giving of the bond, the receiver, appointed by the decree appealed from, has taken possession of the property, his possession thereof will continue during the pendency of the appeal, (p 337, 338.)</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by Rosina Trimboli Ceranto aganist Vincenzo Trimboli. Judgment for plaintiff. Defendant brings error.</p>

<p>RAILROADS — Grants of Rights of Way.</p> <p>Syllabus and oxiinion in Jackson v. Big Bandy c6c li. li. Go., 59 S. E. 749, adopted and applied, (p. 345.) •</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Harry Smith against Michael J. Fahey. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Bill by A. H. Irving against the Iron Belt Building & Loan Association and others. Decree for plaintiff, and defendant association appeals.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by the Parkersburg' National Bank against A. J. Hannaman and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by Crockett Mankin against George W. Jones, Judgment for plaintiff, and defendant brings error.</p>

<p>1. Acknowledgment — Validity—F.eamination of Married Women.</p> <p>A certificate, made in 1868, of acknowledgment by a married woman of a deed failing' to state that on privy examination she acknowledged the deed renders the deed void as to her. (p. 382.)</p> <p>2. Vendos and Purctiasbr — Bona Fide Purchaser — Notice.</p> <p>One who takes a conveyance of land in actual possession of a prior purchaser under an executory contract of sale from the same vendor is a purchaser with notice of the right of such prior purchaser, and in equity holds the legal title as trustee for such prior purchaser, and equity will compel such second purchaser to convey the title legal to the prior purchaser, (p. 383.)</p> <p>3. Specific PeRfojijiaNce — Laches.</p> <p>A purchaser iu actual possession of land under an executory contract of sale will not be barred by laches from enforcing his right to a conveyance, (p. 384.)</p>

Robert Parkins was convicted of violating tlie game law, and Bennett S. White, game warden, filed a petition for fines, and on denial of the same he brings error.

<p>1. Wills — Holographic, Will — Erasures—A Iterations — Revocation.</p> <p>Erasures by hand of testator, in a holographic will, is legal revocation of such portions as are so erased, since it is in the manner required for a will of that character to be executed; and, for the same reason, new portions written into such will by hand of testator, his name remaining in suclr manner as to make it manifest that it is intended as a signature, may make the whole as changed a complete and valid new holographic will of such testator. (p. 391.)</p> <p>2. Same — Presumptions.</p> <p>The use of pencil in writing a will, otherwise duly executed, or in making alterations in such will, raises no presumption that testator was only deliberating and that the will is not final. The use of such instrument may be as final and conclusive as to intent of testator as the use of any other, (p. 392.)</p> <p>3. Same — Contemplated Changes.</p> <p>Evidence to show that testator, in a will duly executed, contemplated changes therein, cannot effect its validity, in its integrity, or in any of its parts. Until there is a change in the legal mode, the presumption is that the result of such contemplation was a determination to adhere to the will as executed, (p. 392.)</p> <p>4. Same — Declarations of Testator.</p> <p>Conduct and declarations of the testator, after a will is duly executed, manifesting ignorance of its existence, are not competent to question thejvalidity or existence of such will. (p. 393.)</p> <p>5. Tbial — Directing Verdict.</p> <p>It is the duty of a trial court, if requested, to direct a verdict for the party who has adduced evidence sufficient to warrant a verdict in his favor, and no evidence appreciably tending- to overthrow the case so made has been adduced by the opposite party, (p. 394.)</p>

<p>1. Adveksb POSSESSION — Extent—Interlock.</p> <p>Where there is in fact an interlock of two conflicting grants or deeds possession of a junior grantee or adverse claimant in actual occupancy of a part of the interlock claiming the whole to the extent of his boundaries will not be limited by the actual possession of the elder grantee or owner outside the interlock, to that part in his actual occupancy, hut he will be held to be in adverse possession of all land in the interlock, (p. 397.)</p> <p>2. BOUNDARIES — Interlock.</p> <p>Where the calls of a junior patent and of deeds subsequent thereto are for the lines and corners of a senior patent, there can be no interlock claimed under snch title papers, the only question to be determined being the true location of such common lines and corners. Mere dispute between conflicting claimants as to where the true lines and corners are do not constitute an interlock. (p. 397.)</p> <p>3. Triad — Demurrer to Evidence.</p> <p>Point 1 of the syllabus in Kelley v. Railroad Co., 58 W. Va. 216, approved and applied, (p. 398.)</p>

<p>Error to Circuit Cou,rt,- Pocahontas County.</p> <p>Action by W. H. Cobb against E. V. Eunlevie. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Circuit Court, Marshall County.</p> <p>Bill by Belle J. Devine against Isaac B. Wilson. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit' Court, Wyoming County.</p> <p>Bill of Arminta M. Cook and others against Gaston D.. Cook and others. Decree for plaintiffs, and Mary M. Cook-appeals.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by H. A. McClanahan against A. C. Caul and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by the Clarke-Lawrence Company against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Application of E. B. Hawkins for writ of mandamus against B. E. Bare, assessor of the First district, and for writ of mandamus against S. T. Carter, assessor of the Second district. From judgments granting the writs, defendants bring error.

<p>Error to Circuit Court, Hancock County.</p> <p>Action by Hannah Jane Metz against Samuel Patton. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by M. F. Matheny and others, against Henry Allen. Judgment for defendant, and plaintiffs bring' error.</p>

<p>1. INTOXICATING Liquoks — Illegal Sale — Evidence.</p> <p>On Uie trial oí an indictment for unlawfully retailing’ liquor with out a license, possession by defendant of an unusual quantity of whiskey shortly before the time of the sale alleged, unexplained, is competent evidence to go to the jury in connection with the other evidence, (p. 453..)</p> <p>2. Same— Instructions.</p> <p>An instruction on the trial of such indictment which told the jury that if they believed “that the defendant Kiger took $1.50 from Albert Hart and went away and came back and gave to the said Hart a quart of whiskey,” that fact, though proved, did not constitute a sale of said whiskey by defendant to said Hart, and they should find the defendant not guilty, was rightly refused as not covering other .inculpating facts and circumstances in evidence. State v. Miller, 26 W. Va. 106, distinguished, (p. 463.)</p> <p>3. Same.</p> <p>One who receives money and delivers whiskey therefor will be treated as the seller, no other person filling that character in the transaction being pointed out by the evidence, unless other facts and circumstances shown in evidence clearly indicate that he was acting in the capacity of purchaser not seller, (p. 453.)</p>

<p>1. CONTRACTS — Construction—Construction by Parties.</p> <p>Where there is doubt as to the proper meaning of a contract-, th construction the parties have put upon it is entitled to great consideration in its enforcement. (p. 458.)</p> <p>2. Evidence — Presumption■—Continuance of Fact or Condition.</p> <p>Things once proved to exist in a particular state are presumed to continue in that state, until the contrary is established by evidence either direct or presumptive, fp. 458.)</p> <p>3. Same.</p> <p>Where a lease for oil and gas provides that “if gas only is found and the same is marketed oft' the premises the second party agrees to pay $5 per pound per annum payable semi-annually in advance for each pound registered in one minute on casing at well six months from date of completion,’’ and no test of the pressure is made by the lessee at the time appointed by the lease, but, based on the pressure ascertained at the time of completion of the well, the lessee pays the lessor the first semi-annual installment of rental for the gas shortly after the pressure has been so ascertained, in an action by lessor against lessee for the second installment of rental it will be presumed, until the contrary is shown, that the pressure in the well continues as shown at the completion thereof, (p. 458.)</p>

<p>Principal and Agest — Evidence of Agenoy.</p> <p>Agency may but need not be proved by direct and positive evidence; it may be shown by the habit and course of dealing- between the parties, evincing- either an original appointment or a subsequent and continued ratification of the acts done. (p. 461.)</p>

<p>1. Attorney and Client— Confidential Relation.</p> <p>No closer or more confidential relation can exist in matters oí business between parties than that of client and attorney; and while such relation exists an attorney cannot allow his personal interests, in any way, to become antagonistic to those of his client without at once giving the client full information thereof, (p.468.)</p> <p>2'. Same.</p> <p>The general rule that a client is bound by the acts of his attorney, does not hold good when the acts of the attorney were done in pursuance of a fraudulent confederation of the attorney with the party who seeks to maintain such acts of the attorney (p. 468.)’</p> <p>3. Same.</p> <p>H. and S. sold to R. tracts of land, who sold the same to M. while suit was pending- for balance of purchase money claimed to be due thereon from R. to H. and S. R. gave his obligation tp M. to pay any recovery in favor of H. and S., R. filed his answer setting-up good defense and claiming- a decree over against H. and S. for deficit in quantity of land and failure of title in some tracts, forovor-payment of purchase money. D., the attorney of R., without the knowledge or consent of R., entered into an agreement withM. permitting decree to bo entered against R. without defense for the amount claimed to be due to H. and S. on the purchase money, which M. was to pay releasing R. from liability. M. afterwards obtained judgment by default against R. for the amount paid on said decree. R. filed his bill to enjoin the collection of said judgment alleging that when his attorney D. entered into the agreement withM. to permit the decree to be entered against R. in favor of H. and S. his said attorney D., together with others, was a joint purchaser from R. of the lauds in question with K., and that the knowledge of such interest of his attorney, as purchaser, and his defense to M’s action had come to plaintiff’s knowledge within a year before filing'his bill. Held: the bill is good on demurrer, (p'. 463.)</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by I. C. Ralphsnyder against Amandaville E. Tittus and others. Decree for defendants and plaintiff appeals.</p>

<p>1. Judgment — lies Judicata.</p> <p>A judgment binds onl£ parties and privies, not strangers to it. Against strangers it is not evidence to prove any facts involved in the judgment, (p. 475.)</p> <p>2. Same.</p> <p>The record and judgment in a proceeding to try the right of property levied upon under an execution by an officer, finding the property not to be the property of the debtor, is not admissible in an action by the successful claimant in said proceeding against the officer for damages for the seizure and detention of the property. (p. 474.)</p>

<p>1. Principal and Agent — Action Against Principal.</p> <p>In an action against a principal on a contract made through his agent, the contract maybe declared on either as made by the principal, or by him through his agent, (p. 479.)</p> <p>2. Same — Proof of Agency.</p> <p>The mere fact that one assumes to act as agent of another is not alone sufficient to show such agency; but if the agents’s acts are so open, apparent and notorious that it is evident that they must have been known to the principal they are evidence of agency. Circumstances may establish it', without proof of express appointment, (p. 480.)</p> <p>3. Same — Liability of Principal.</p> <p>If provisions and material for work of construction of a railroad are sold to the contractor through one assuming to be agent for the contractor, and they are used in his work to his benefit, such contractor is liable for them, though no proof of agency appears, (p. 480.)</p>

<p>Taxation — Assessment—Review by Courts.</p> <p>There is no jurisdiction for a writ of error in this Court from the decision of a circuit court made upon appeal from a county court in a proceeding under Code, chapter 29, section 129,' as that section appears in chapter 35, Acts of 1905, p. 247, brought in a county court by a corporation to be released from an alleged erroneous assessment of its property returned for taxation, because of the refusal of the county court and assessor to deduct indebtedness of such corporation from its money, credits and investments, (p. 482.)</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Bill by C. T. Blake and others against Sue O’Neal and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Prohibition, Writ of — When Granted.</p> <p>A petition for writ of prohibition, which does, not clearly and affirmatively show by its allegations that the inferior tribunal is about to proceed in a matter over which it has no jurisdiction, is insufficient, (p. 500.)</p>

<p>1. Assumpsit, Action os — Declaration—Promise.</p> <p>A declaration in assumpsit which alleges that the plaintiff agreed to do certain things under the contract, and that the defendant in consideration thereof agreed to pay the plaintiff therefor the price stipulated in the contract, sufficiently alleges the promise of the defendant, (p. 505.)</p> <p>2. Same — Implied Assumpsit,</p> <p>An implied promise must be as distinctly alleged in a declaration as an express one. (p. 506.)</p> <p>3. Contracts — Breach—Action—Declaration.</p> <p>In a declaration upon a contract for mining coal by plaintiff, the charge, by way of assigning a breach thereof by the defendant, that the “ defendant would not permit the plaintiff to go on with the work and performance of said contract, blit so conducted itself in and about the operation of said contract as to stop the plaintiff from doing said work, and compelled the plaintiff to cease work on said contract and leave said premises, ” is not sufficient to apprise the defendant of the particular matter or matters relied on as constituting such alleged breach, and renders the declaration demurrable in that particular, (p. 506.)</p> <p>'4. Pleading — Demurrer, Grounds Of.</p> <p>Although a special count in a declaration may show that the contract sued upon continues executory and recovery may not be had upon the common counts, demurrer to the common counts will not be sustained for this reason, such matter of defense properly arising on the trial, (p. 507.)-</p> <p>5. Sam® — Defects and Objections — Aider by Verdict.</p> <p>In an action of assumpsit, a plea of “not guilty” presents a substantial issue, and such misleading and misjoinder of issue thereon will, after verdict, ho cured by our statute, (p. 508.)</p> <p>6. Same — Bepleader.</p> <p>Where such misleading is due to the fault of the defendant, the plea tendered presenting a substantial issue, he will not, after verdict, be allowed the benefit of his own mistake and awarded a re-pleader. (p. 508.)</p> <p>7. Contracts — Performance or Breach — Benunaiation.</p> <p>Renunciation by one party to a contract which will excuse performance by the other must be unequivocal and absolute, and deal with the entire performance to which the contract binds the prom-isr r. (p. 500.)</p> <p>8. Same.</p> <p>Where one of the parties to a contract reduced to writing, after partial performance by him, claims there was a subsequent oral modification thereof, denied by the other party, such denial will not amount to a renunciation of the actual contract and excuse performance on the part of the other party, so as to give immediate cause of action as for a breach of the contract, (p. 510.)</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by Aaron Rexroad, trustee, against French Raines and others. Decree for plaintiff, and defendant appeal’s.</p>

<p>X. PARTUBHSniP — Dissolution—Liability of Partner.</p> <p>All the partners are still bound, alter dissolution, by a contract made during the partnership, (p. 516.)</p> <p>2. EVIDB2ÍOB — ■Admission of Partner.</p> <p>An admission by one partner, made after dissolution, o'f the existence of a debt'against a firm, or a settlement made with him finding a debt against it, the other partner not being present when such admission or settlement is made, does not bind the other partner, and is not admissible evidence against him. (p. 520.)</p> <p>3. Paiitebkship— Payment of Debt — Individual Note.</p> <p>A promissory note made by one partner alone for the debt of the firm does not operate as payment, and does not release another partner from the debt, unless the creditor agrees to accept it as payment and release the other partner, (p. 522.)</p>

Action by Louisa Riedel against the Wheeling- Traction Company. Yerdict for $15,000 in favor of plaintiff was set aside by the court, and of this action Louisa Riedel complains.

<p>1. Deeds — Construction—Intent ■/ Parties.</p> <p>In deeds, contracts and other instruments, both technical and lion-technical words are sometimes given meaning' variant from the significations they ordinarily have, and, when it is manifest that the parties intended them to have a restricted or peculiar signification, such intention will be respected and enforced by the eourts. (p. 530.)</p> <p>2. Evidence — Parol Evidence — Explanation of Deed.</p> <p>When, in attempting to apply a deed to its subject matter or the parties thereto, a latent ambiguity of any kind is disclosed, parol evidence is admissible to a limited extent, to show what was intended, not only by the instrument considered as a whole, but also by particular words or clauses thereof, (p. 540.)</p> <p>3. Same.</p> <p>Parol evidence, admissible for such purpose, is generally limited to the subject-matter, the relation of the parties thereto, their prior and subsequent conduct, their situation, and all the facts and circumstances existing at the time of the execution of the instrument, (p. 540.)</p> <p>4. Deed — Description of Property — “Eastern One-half.”</p> <p>The terms “eastern one-half.,” in a deed conveying one-half of a tract of land, in the absence of admissible parol evidence, disclosing a different intention, would mean the eastern half, formed by a line to be run due north and south through the tract; but, if it appears that, before the deed was executed, a division into two parts, supposedly equal in area, had been made by a line, having a different bearing, actually marked on the ground by stakes and fences, according to which possession had been held for a number of years, and the parties have since held possession according to such line, the words must be taken to mean the eastern one-half as so laid off and held in severalty, (p. 540.)</p>

<p>1. Statutes — Construction—Construction With Reference to Judicial Construction.</p> <p>It is presumed that the legislature, in re-enacting a statute that has been judicially construed, substantially in its original terms, intended it to have effect thereafter as so construed by the courts-(p. 545.)</p> <p>2. Same.</p> <p>This Court having clodded in the case of Pegram v. Btortz, 31 W. Va. 220, that, in an action by a widow against a licensed retailer of spirituous liquors, under section 16 of chapter 107 of the Acts of 1877, no damage can be given her because of injury to her means of support by the death of her husband caused by intoxication, the consequence of liquors illegally furnished or sold to him by the defendant, and the legislature having, since the rendition of said decision, re enacted said statute substantially in the original terms thereof, it is presumed that that body intended it to have effect and be enforced as so previously construed, (p. 546.)</p> <p>3. COURTS — Effect of Overruling of Previous Decision in Part.</p> <p>The overruling of a decision as to one proposition of law, declared by it, does not argue unsoundness therein as to other separate and distinct propositions enunciated thereby, (p. 545.)</p> <p>4. Pleading — Declaration—Immaterial Allegations — Effect. .</p> <p>A declaration,- alleging matter sufficient to constitute a cause of action, is not vitiated by the incorporation therein of immaterial matter. The immaterial allegations will bo disregarded as surplus-age. (p. 548.)</p> <p>5. Intoxicating Liquor — OivilDamage Laws — Evidence—Admissibility.</p> <p>Though a declaration states a claim for damages under section 26 of chapter 32 of the Code of 1906, for only one year preceding the date of commencement of the action, evidence of habitual drunkenness, on the part of the person to whom the illegal sales were made, prior to said year and continuance thereof to the time of the sales complained of, and knowledge on the part of .the seller, is .admissible, (p. 549.)</p> <p>6. Same — Sales by Agent.</p> <p>Under a declaration in such cases, alleging sales to have been made by the defendant, evidence of sales made by his bar-tender, clerk, .servant or agent is admissible, (p. 550.)</p> <p>7. Same — Damages—Exemplary. ,</p> <p>In such action, circumstances of aggravation are admissible in evidence to increase the damages, (p. 551.)</p> <p>8. Pleading — Plea m Abatement — Jurisdiction.</p> <p>If a declaration shows jurisdiction on its face, no exception to the jurisdiction of the court can be taken otherwise than by plea in abatement, (p. 551.)</p> <p>9. Intoxicating Liquors — Civil Damage Laics.</p> <p>A cause of action, arising under section 26 of chapter 32 of the Code of 1906, is transitory and it need not 'appear that it arose in the county in which the action was brought, (p. 552.)</p>

<p>Error to'Circuit Court, Fayette County.</p> <p>Action by Mary Hanson against J. A. Blake, administrator. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bills and Notes — Bona Fide Purchase — Defenses—Want of Authority.</p> <p>The doctrine that an agent disposing oí the property of his principal without authority transfers no title as against the principal, does not apply to currency, or negotiable instruments without restrictive endorsement, where they have come into the hands of a bona fide purchaser for value without notice, (p. 569.)</p> <p>2. PniiroirAL and A&ent — Misuse of Principal’s Property.</p> <p>To make one liable by reason of participation in misuse of money of the principal by an agent, upon the ground that it was used to pay the private debt of the agent, it is necessary to show not only that the party sought to be charged was aware that the money belonged to the principal, but also that he was aware that the debt paid by it was in fact a private debt of the agent, or such a debt' that payment thereof could not lawfully be made out of such money, (p. 569.)</p> <p>3. Tbusts — Misappropriation of the Fund — Liability of Third Party.</p> <p>It must be shown that he knowingly partakes in the breach of trust, to charge a third person as a party to misappropriation of a trust fund. '(p. 569.)</p>

<p>1. Process — Service—Presumption.</p> <p>The presumption in favor of an officer to whom a writ is directed that he served the same within his count}’ can not be indulged in favor of a private individual serving process, (pp. 575, 576.)</p> <p>2. Same — Return.</p> <p>When process is served by a private individual, under section 2, chapter 124, Oode, his return must, in addition to showing the manner and time, also show Vaa place of service, (p. 576.)</p> <p>3. JUDGMENT — Default— Vacating.</p> <p>When the return of process by an individual is thus defective, and there is judgment by default based thereon, such judgment may be vacated and annulled upon motion, either under section 1 or section 5, chapter 134, Oode. (p. 577.)</p> <p>■4. Same.</p> <p>Where there has been a judgment by default upon such void process, the statute relating to pleas in abatement will not be applied so as to deny to the defendant the remedy provided by sections 1 and 5 of said chapter 134 for correcting or reversing said judgments, (p. 577.)</p>

Bill by the Pocahontas Wholesale Grocery Company and others against J. A.' Gillespie and others. Decree for plaintiffs, and defendant the Flat Top Grocery Company appeals.

<p>1. Acknowledgment — Records—Ooniracts Improperly Acknowledged— “Duly Admitted to Record.”</p> <p>If a contract for the sale or option of coal in place, which has not been acknowledged or proved by two witnesses as required by statute, be admitted to record by the clerk of the county court of the proper county, such contract is not “duly admitted to record." (p. 595.)</p> <p>2. Vendok and "Pubciiaseb — Bona Fide Purchaser.</p> <p>Such contract or option, so improperly admitted to record and copied into the deed book, is not a recorded contract and is not notice to subsequentpurchashers. (p.595.)</p> <p>3. Specific Pebeohmance — When Granted.</p> <p>Where the assignees of such contract or option afterwards took another option from the optionor for a part only of the same coal and brought their suit, against the optionor and the purchaser of the land and coal not included in such other and later option, to enforce the specific performance of the first as well as the later option; and, pending the suit, the plaintiffs accepted from the optionor, incompliance with and in performance of the terms of the later option, a deed for the part of the coal so purchased under the later option and dismissed their suit as to the opitionor. Held: the court will not enforce specific performance of the first option, nor set aside the deed of the purchaser of the land including the part of the coal not sold under the later option, (p. 596.)</p>

<p>1. Criminal Law — Appeal—Conflicting Evidence.</p> <p>In the trial of a felony case, -where the verdict is supported by the evidence although very conflicting, and the trial judge has refused to set aside the verdict as contrary to the evidence; the appellate court will not disturb the verdict, unless it clearly appears from the record that injustice has been done the defendant, (p. 598.)</p> <p>2. Same — Trial—Separation of Witnesses.</p> <p>It is well settled in this state that when an order is made separating the witnesses at the trial of a case, if a witness in violation of the order remains in, or returns to the court room, and hears the testimony of the other witnesses he is not thereby rendered incompetent as a witness, (p. 599.)</p>

Action by the state, for the use of- Jacob Epstein, against H. P. Totten and others. Verdict for defendants, and plaintiff brings error.

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by Joseph W. Thorne against John W.' Brown and others. Decree for plaintiff, and defendant Brown appeals.</p>

<p>Appeal from Circuit Court,-Morgan County.</p> <p>Bill by E. A. Pheasant and others against Henry N. Hanna and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Bill by Samantha Russell against Cassie A. Tennant and others. Decree for defendants, and complainant appeals.</p>

<p>1. Larceny — Indictment—Description of Property.</p> <p>The terms “ one man’s saddle” and “one horse” are, in an indictment for larceny, sufficient description of the property alleged to be stolen, (p. 636.)</p> <p>2. Criminal Law — Bill of Exceptions.</p> <p>A bill of exceptions to become a part of the record must, if made in term, be plainly recognized by the record as such; and, if made in vacation, within the time allowed by law, must be certified by order duly entered of record as required by statute, (p. 687.)</p> <p>3. Same — Judgment Of Gomiction — Erroneous Entry.</p> <p>The mere inadvertence of entering a judgment at law in the book used for the entry of chancery orders and decrees by the same court does not, as between the- parties, invalidate or affect such judgment. It is a sufficient memorial for the enforcement of the judgment, or appeal therefrom by writ of error, (p. 639.)</p>

<p>Appeal from Circuit Court, Boone County.</p> <p>Bill by the First National Bank of Northampon against E. ,'T. Crawford and others. Decree for plaintiff, and defendants appeal.</p>

Action by the State, for the use of the county of Mingo, against N. J. Keadle and others. Judgment for plaintiff, and defendant J. E. Peck and others bring error.

Action by Thomas A. Deveny and others against the Hart Coal Company and others. Decree for plaintiffs, and' defendants James F. Cook and others appeal.

<p>1. Mechanic's Liens — Ward’s Land — Authority of Guardian.</p> <p>Out of proceeds of a sale of an infant’s land in a suit brought by his guardian to sell his land, under Code, chapter 83, the court authorizes the guardian to build a house on other land of the infant. This will not authorize a mechanic’s lien for lumber used in construction against the land on which the house stands, (p. 661.)</p> <p>2. Same — Bnfor cement.</p> <p>To enable a court of equity to enforce a mechanic’s lien, the lien must have legal validity, (p. 664.)</p> <p>3. Same — Lien on Infant’s Land.</p> <p>The mere fact that lumber is used in the construction of a house on an infant’s land gives no lien on the land enforceable in equity, (p. 664.)</p>

<p>.1. Weapons — Oarrying Weapons — Evidence.</p> <p>An indictment charges that the defendant carried “a certain revolver or other pistol, dirk, bowie knife, razor, slung shot, billy, metallic or other false knuckles and other dangerous and deadly weapons.” The evidence shows that the defendantcarrid a “black jack,” and does not prove its dangerous or deadly character. The defendant's conviction is erroneous, (p. 666.)</p> <p>3. Same — Indictment—Evidence.</p> <p>Where a person carries about his person a dangerous or deadly weapon not specified in Code, chapter 148, section 7, the indictment must name the weapon, and allege it to be a dangerous, or deadly weapon, and the proof must show it to be such. (p. 666.)</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Halsey Bailey was convicted of larceny, and he brings error.</p>

<p>1. CONTRACTS — Rescission—Reformation— Grounds.</p> <p>The rights of rescission and reformation of contracts are analogous. Both are predicated on fraud, accident or mistake, (p. 682.)</p> <p>2. Same — Evidence.</p> <p>Such right is an independent equity, to be established, not a mere additional term or condition of the written instrument, and the legal presumption that the instrument correctly expresses the intention of the parties must be overcome by clear and satisfactory proof, (p. 682.)</p> <p>3. Appeal — Review— Cancellation of Instrumente — Reed—Evidence.</p> <p>A decree rescinding a deed, at the instance of the grantee, though predicated on the finding of the trial court on an issue of fact, will be reversed if the contract, as expressed in the deed, gives the grantee all the grantor could reasonably and consistently have conveyed, under the circumstances existing at the date of the execution thereof, and the oral evidence, respecting his alleged intention to grant more, does not preponderate in favor of either party, (p. 683.)</p>

Application by the State, on the relation of H. A. Lilly ■and others against E. E. Carter and others for writ of man■damus. From an order granting the writ, defendants bring «error.

<p>1. VENDOR and Purchaser — Bona Vide Purchaser — Notice—Pacts— Putting on Inquiry.</p> <p>Whatever is sufficient to direct the attention of a purchaser to. prior rights and equities of third parties, so as to put him on. inquiry into ascertaining their nature, will operate as notice, (pp. G93, 695.)</p> <p>2. Same.</p> <p>A party is not entitled to protection as a bona fide purchaser,, without notice, unless he looks to every part of the title he is purchasing, neglecting no source of information respecting it which common prudence suggests, (pp. 693, 695.)</p> <p>3. Same</p> <p>That 'which fair]}’ puts a party on inquiry is regarded as sufficient notice, if the means of knowledge are at hand; and a purchaser, having' sufficient knowledge to put him on inquiry, or being informed of circumstances which ought to lead to such inquiry, is deemed to be sufficiently notified to deprive him of the character of an innocent purchaser. (pp. 693, 695.)</p> <p>4. Same.</p> <p>If one has knowledge or information of facts sufficient to put a prudent man on inquiry, as to the existence of some right or title in conflict with that which he is about to purchase, he is bound to prosecute the same, and to ascertain the extent of .such prior right; and, if he wholly neglects to make inquiry, or, having begun it, fails to prosecute it in reasonable manner, the law will charge him ■with knowledge.of all facts that such inquiry would have afforded, (pp. 693, 695.)</p> <p>5. Same.</p> <p>One who has taken deed for land, purporting on its face to convey all interests therein, but with reservation of pine and hemlock timber, and recital that such timber on the land has been sold, and afterwards acquires by deed without such reservation outstanding interest found to exist in title to the land, not combed by the former deed, is chargeable with notice of the rights of another, whom, by common prudence, he would have found to be owner of such timber by purchase prior to the deed containing such reservation and recital, and, as to that other, is not an innocent purchaser of interest in such timber by said deed for the outstanding interest, (pp. 690, 695.)</p>

<p>Appeal -from Circuit Court, Wood County.</p> <p>Bill byH. B. Hulings against George F. Jones and another. From the decree, defendants appeal.</p>