Volume 69 — West Virginia Reports

Appeal front Circuit Court, Mercer County. Bill by the Bluefield Waterworks & Improvement Company and others against the City of Bluefield and others. Decree of dismissal, and plaintiffs appeal.

<p>1. Boundaries — Establishment—Boundary Between Private Lot and City Street.</p> <p>The location of a boundary- line between a private lot and a city street, left in a state of uncertainty by the title papers and dependance upon dedication and acceptance of the street by mere conduct, is determinable by the rules applicable in other cases of disputed and uncertain boundary lines, (pp. 12-14).</p> <p>2. Same.</p> <p>In sucb case, long continued possession by both parties according to a certain line is evidence of an agreement as to the location of the line, and, in the absence of circumstances countervailing it, eontroling and binding, (pp. 12-14).</p> <p>(Brannon, Judge, absent.)</p>

<p>1. CANCELLATION of Instbuments — Equity—Jurisdiction.</p> <p>Equity has jurisdiction to cancel a contract ón the ground of fraud in its procurement, (p. 16).</p> <p>2. Sales — Cancellation of Contracts — Fraud.</p> <p>Equity will not cancel a contract of sale made between parties fully competent to contract, and between whom no confidential relation exists, on the sole ground that the seller misrepresented the true value of the thing sold and thereby induced the purchaser to buy, unless the price agreed to be paid is so much in excess of the true value as to shook the moral conscience. (p. 17).</p> <p>(Brannon, Judge, absent.)</p>

<p>Error to Circuit Court, Marshall County..</p> <p>Action by Louisa Biedel against tbe Wheeling Traction Company. From a judgment for defendant, plaintiff brings error.</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Bill by A. D. Preston against A. H. West and others. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Bill by Sarah B. Tennant ancl others against Lncretia Ten-nant and others. Decree of dismissal and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Iiarrisou County.</p> <p>Bill by Henry H. Edinger against the Southern Oil Company and'others. From the decree mentioned defendant appeals.</p>

<p>Error to Circuit Court, Barbour County.</p> <p>Action by S. C. Dadisman against the West Virginia Eastern Telephone Company. A judgment for plaintiff was set aside, and he brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by the Hall Mining Company against the Consolidated Fuel Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Detinue — Pleading—Allegation of Value.</p> <p>A declaration in detinue for saw logs, stating tlie average value of each and the aggregate value of all, suffices as to specification of value., (p. 53).</p> <p>2’. Lo'gs and Logging — Vendor’s Lien.</p> <p>A vendor of timber, severed from his land by the vendee, under a written contract, may, in the absence of a stipulation to the contrary, retain possession thereof, to secure payment of the purchase money, although the title has passed to the ■ vendee, and such right of retention is not relinquished nor destroyed by a clause in the contract, saying the timber shall “stand good for the purchase money,” (p. 54).</p> <p>3. CiiatteIj Mobtgages — Vendor's Lien.</p> <p>I'f the vendee in such case execute a deed of trust upon the property so sold, while it remains upon the lands of the vendor, the right of the trustee therein to possession of the timber is subordinate to that of the vendor, (p. 54).</p> <p>4. Detinue — Right of Action — Sufficiency of Possession.</p> <p>If a vendor, having such right of possession, re-purchase the timber in consideration of his claim for purchase money, after execution of the deed of trust and with notice thereof, and then make delivery of the same, under a contract of sale from him to a stranger, at a place on his own land or land of another under a license secured by him for the purpose, and thereafter ’ the trustee in the deed of trust take possession of the same, such vendor has sufficient prior possession to enable him to maintain detinue against the trustee, (p. 55).</p> <p>5. Same — Defenses—Outstanding Title in Third Person.</p> <p>, A defendant in an action of detinue cannot set up, against a plaintiff whose possession he has wrongfully invaded by taking the property, an outstanding title in a third person under which he does not claim, (p. 56).</p>

<p>1. Mines and Minerals — Conflicting Claims to Royalty Oil — Jtiris-<action</p> <p>Equity has jurisdiction to pass on conflicting claims to royalty oil, though under the same lease, (p. 61).</p> <p>2. Appeal and Error — Harmless Error — Overruling Demurrer.</p> <p>Though a demurrer to a hill for want of,parties he erroneously overruled, yet if they he later made parties hy amended hill, the error is cured, (p. 61).</p> <p>3. Carriers — Carriage of Goods — Duty to Yield Possession to Person Having Title.</p> <p>' A common carrier' of goods must yield possession or recognize the right of a third party having a true title, or such party may enforce his right hy suit. (p. 62').</p> <p>4. Same — Carriage of -Oil — Liability of Pipe Line Company for Royalty Oil.</p> <p>A lease for oil provides, that the lessee shall pay the landowner a royalty of a fraction of the oil produced under the lease, such royalty oil to be delivered into the pipe line of a common carrier of oil. Such common carrier having notice of the assignment hy the landowner to another of a given fraction of such royalty oil must account to such an assignee for his undivided fraction of such oil. (p. 63).</p> <p>5. Equity — Conolusiveness—Matters Concluded.</p> <p>In a suit hy an assignee of a fraction of the one-eighth for royalty reserved in a lease of land for oil to.vindicate his right among conflicting claimants to a portion of such royalty oil, no decree can he made in favor of a claimant to another fraction of such royalty oil, he not asking it. It is foreign to the suit. (p. 64).</p> <p>6. Carriers — Pipe Line Companies — Duty of Company to Account for Undivided Fraction of Oil.</p> <p>Where a lease for oil provides for the delivery to the lessor of a fraction of the oil in the pipe line of a common carrier of oil, there need he no actual physical separation of the lessor’s . share from the whole of the oil to vest title in him, hut the carrier must account to him for his undivided fraction, (p. 63).</p>

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Oliver P. Harris against the City & Elm Grove Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Logan County.</p> <p>Action by Elmer Blankenship against the Ethel Coal Company. Judgment for plaintiff and defendant brings error.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by J. J. Iving and others against W. A. Porter and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Error to Circuit Court, Clay County.</p> <p>Action by the Bank of Gassaway against Mary Stalnaker and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Parties — Plaintiffs•—Misjoinder.</p> <p>Where plaintiffs have a joint interest, -or seek a common object by means of the suit, though they be not united in interest with, each other, there' is no misjoinder of parties, (pp. 91,. 92).</p> <p>2. Taxation — Tax Deeds — Actions to Set Aside — Parties.</p> <p>In a suit to set aside a tax deed for land illegally returned delinquent and sold, one to whom a part of said land has been sold and conveyed subsequent to the year for which it was so returned as delinquent, is not a necessary party to- such suit, the decree in such suit binding him as well as his Vendor, and if in favor of the latter, enuring to his benefit, (p. 92).</p> <p>3. Same.</p> <p>The interest of one who has acquired title to a portion of such delinquent land prior to the year for which it was so returned delinquent and sold in the name of. his vendor, is so separable as not to render him an indispensable party to a suit by such vendor to set aside such tax sale and deed; and the court without his presence as a party, may proceed to final decree in favor of such vendor without affecting his interests, (p. 93).</p> <p>ir Same — Double Taxation — Payment of Taxes.</p> <p>Though there has been a parol partition of land between two joint tenants, but no deeds have passed between them, the legal title to the whole remaining invested in them jointly, the assessment of the whole tract to, and payment of taxes thereon by the grantee of one joint tenant by two deeds, one conveying his undivided interest in the whole tract, the other, by metes i and bounds, the part allotted to him in severalty by said partition, will discharge the taxes on the whole tract, render void a delinquent return, sale, and purchase, and the deed to the purchaser, for the taxes for the same year, of the part allotted to the other partitioner, assessed in the name of such partitioned jointly, (p. 93).</p> <p>5. Same — Tax Sales — Actions to set Aside — Parties.</p> <p>Parties and partitioned thus related in title, and having such interest therein, may properly join in a'suit to set aside such tax title, and to remove the same as a cloud on their title, ip. 94).</p> <p>(Braxxo¡st, Judge, absent.)</p>

<p>1. Pbocess — Requisites—Form of Action — Designation.</p> <p>A writ giving full information as to . parties, time, place, nature of tlie demand, and all other essential particulars, and omitting no constitutional or statutory requisite, is sufficient, though, inaccurate in its designation, oí the form of action, (p. 96).</p> <p>2. Pusading — Declaration—Promise—Cure by Verdict.</p> <p>■ Averment of the promise in a declaration in assumpsit by implication or intendment only is defective and would /be insufficient on demurrer, but, in the absence of a demurrer, is cured by a verdict under the operation of the statute of jeofails, (p. 96).</p> <p>3. Continuance — Grounds—Amendment of Complaint.</p> <p>An amendment of a pleading at the trial, to make the allega: • tions correspond with the proof, allowed under section- 8 of chapter 131 of the Code of 1906, does not give the opposite party an absolute right to continue the case. He can have a continuance only for cause made apparent by the character of the amendment or otherwise shown, (p. 98).</p> <p>4. Intoxicating Liquobs — Validity of Lease — Adoption of Local Option.</p> <p>Impossibility of the use of leased property for the purpose specified in the Contract, occasioned by a cause beyond the control of the lessee, does not make the contract of lease wholly void nor unconditionally relieve him from the obligation to pay rent. When available at all, such defense makes the contract voidable only, and, to obtain the benefit thereof, the lessee must abandon the premises and wholly decline the benefit of the contract after the happening of the contingency, (p. 99).</p> <p>(Bkannon. Judge, absent.)</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>. Action by M. L. Comstock against the J. E. Droney Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the Dollar Savings & Trust Company against E. T. Crawford and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Hancock County.</p> <p>Action by Alplreus Scott against John E. Newell and others. Judgm'ent for defendants, and plaintiff brings error.</p>

<p>1. Licenses — Selling Trading Stamps — Power of Legislature.</p> <p>Tlie Legislature has power to select and tax the business of issuing and redeeming trading stamps, ip. 125).</p> <p>2. Same — Reasonableness—Presumptions.</p> <p>Every presumption is in favor of the reasonableness of a tax laid by the Legislature; only strong considerations can avail to overthrow the tax. (p. 126).</p> <p>3. Constitutional Law — Dealing in Trading Stamps.</p> <p>The license tax on the business of selling trading stamps to merchants, or of redeeming such stamps with money or goods, imposed by Code 1906, chapter 32, sections 2 and 101, is not forbidden by any provision of the State Constitution or the Fourteenth Amendment to the Federal Constitution, (p. 128).</p>

Appeal by the S. M. Smith Insurance Agency against the Hamilton Fire Insurance Company. Decree for plaintiff, and defendant appeals. Process issued in suit January 10, 1908. Defendant’s right to do lousiness in West Virginia expired Dceember 31, 1907. W. Ya.

<p>Appeal from Circuit Court, Monongalia County.</p> <p>Suit by Solomon Myers against John E. Carnahan and others. Decree for plaintiff,' and defendants appeal.</p>

Action by Fielder & Turley against the Adams Express Company. Judgment for plaintiff before a justice was affirmed by the intermediate court, but reversed on error by the circuit court, and plaintiffs bring error.

Consolidated bills by Viola Darnell against Amy Flynn and others, and by Viola Darnell and others against E. E. Musick and others. From the joint decree, Musick and others appeal.

<p>1. Payment — Pleading—Set Off and Counter Claim.</p> <p>Sets-off and partial payments must be specified in a plea or in an account filed to be provable. Code 1906, chapter 126, section 4. (p. 155).</p> <p>2. Bills and Notes — Failure of Consideration — Evidence.</p> <p>Evidence to show failure of consideration in a promissory note must clearly show that the thing on which the failure rests entered into consideration of the note. (p. 154).</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Alpheus F. Millan against Fred W. Bartlett. Judgment oi.dismissal, and plaintiff brings error.</p>

<p>1. Exceptions, Bill op — Time for Saving — Adjourned Term of Court.</p> <p>A bill of exceptions in relation to a judgment entered at a term which is adjourned thereafter to an adjourned term must be saved either before the adjournment to the adjourned term or within thirty days after that adjournment, (p. 159).</p> <p>2. Same.</p> <p>The thirty days allowed for the taking of a bill of exceptions, when the exceptions relate to a judgment entered at a term which is adjourned to an adjourned term, run from the date of that adjournment, and not from the end of the adjourned term. (p. 159).</p>

<p>1. Public Lands — Sale—Decree.</p> <p>A decree of sale, reciting that the land proceeded against and directed to he sold is “school land” or “waste and unappropriated land,” is sufficient prima facie evidence of the state’s title to meet the requirements of points 3 and 4 of the syllabus in this case on former writ of error, 64 W. Va. 452. (p. 161).</p> <p>2. Same — School Lands — Identity of Land Sold.</p> <p>The whole of the record of proceedings for the sale of school lands, together with the deed made in pursuance thereof, should be looked to for the purpose of identifying land thereby sold as land now in controversy, (p. 162).</p>

Bill by Hannali S. Shaffer, individually and as guardian of her children, against Charles H. Shaffer and others. From the decree, certain defendants appeal.

<p>Error to Circuit Court, Barbour County.</p> <p>Action by the Pirst National Bank of Philippi against Mary D. Kittle and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Divobcjs — Right to Relief — Inequitable Conduct of Plaintiff.</p> <p>The rule of courts of equity, denying relief to a party because of his own inequitable conduct in and about the subject matter of his cause of action, applies in suits for divorce, (p. 179).</p> <p>2. Same — Limited, Divorce — Desertion—Conduct Precluding Relief.</p> <p>Under this rule, conduct of a plaintiff in a suit for a limited divorce on the ground of desertion, not sufficient to justify the desertion, may nevertheless he sufficient to preclude relief, (p. 179).</p> <p>3. Same — Desertion—Right of Iiushand to Determine Domicile.</p> <p>Though a husband has the legal right to determine the place of abode of the family, and the wife must submit to his decision, this power must- be exercised in a reasonable and just manner. It cannot be exercised arbitrarily, nor used as a means of procuring dissolution of the marital relation, (p. 178).</p>

<p>1. Taxation — Failure to List Land — Forfeiture.</p> <p>Land omitted from the land books for the years 1865 to 1874, inclusive, was forfeited, for such omission, by chapter 125 of the Acts of 1869, inflicting forfeiture for such omission for any period of five years, either prior or subsequent to the passage of said act, subject to certain exceptions therein specified, (p. 184).</p> <p>2. Same — Lands Forfeited for Omission from Land Book — Acquisition.</p> <p>A tract of land, granted in 1851, sold by the grantee by title bond, occupied by the vendee and successive assignees of his . until 1873, omitted from the land books until 1875, conveyed by one of such assignees, in 1873, to his assignee and successor in possession, entered upon the land books for taxation in 1875, in the name of the grantee in the deed of 1873-, forfeited for omission from the land hooks from 1865 to 1869, was subject to acquisition by said last mentioned assignee and those claiming under him and succeeding him in possession, by transfer under section 3 of article XIII of the Constitution, (p. 1841.</p> <p>3. Same.</p> <p>Such assignee’s deed constituted color of title, and the relation of privity between him and the vendor did not preclude him from acquiring title under said section, he having been under no duty to pay the taxes for the years for which the forfeiture occurred and being neither an heir nor devisee of any person or persons for whose default the land was forfeited, (p. 185).</p>

<p>Appeal from Circuit Court, Raleigh County.</p> <p>Bill by E. B. Hawkins against Mary Blake and others. Decree for plaintiff, and defendants appeal.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by B. Hudkins and others against B. F. Bush, receiver of the Western Maryland Railroad Company. .Judgment for •defendant, and plaintiffs bring error.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by Wirt C. Ward against the Hotel Randolph Company, John Wilson, and others. Erom an order appointing a receiver, defendant Wilson appeals.</p>

<p>1. Attobney and Client — Termination of Relation —[Death of Client.</p> <p>Death of a client ends the power of his attorney at law. (p. 203).</p> <p>2. Abatement and Revival — Consent of Heirs of Deceased Defined.</p> <p>Revival' of a cause against heirs of a deceased defendant by consent of such heirs dispenses with process to revive and makes them parties, (p. 202).</p> <p>3. Judgment — Consent Decree Given by Attorney — Vacation — Burden of Proof.</p> <p>To overthrow a decree by consent given by an attorney at law on the ground of his want of authority, the burden to prove such want is on the party asserting it, and must he clear and full. (p. 205).</p> <p>4. Judicial Sales — Conclusiveness.</p> <p>One about to purchase property under a decree of a court having jurisdiction is not bound to inquire into the authority of an attorney representing a party, (p. 206).</p> <p>5. Attorney and Client — Authority of Attorney — Consent to Decree by Client.</p> <p>The relation of client and attorney at law authorizes the attorney to consent to a decree binding his client, (p. 207).</p> <p>6. Same — Authority of Attorney — Evidence.</p> <p>Authority of an attorney to act for his client in consent by the attorney to a decree binding his client may be shown by the conduct of the client, his acquiscence therein or other circumstances proving it. (p. 208).</p> <p>7. Same — Unauthorized, Acts of Attorney — Acquiescence by Client.</p> <p>If an attorney at law act without authority in consenting to a decree, and the client afterwards recognize his authority, or, with knowledge of it, acquiesce in it, and make no objection to it when he knows that other persons are acting upon faith of the attorney’s authority, it is a ratification making the decree binding on the client, (p. 209).</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Mandamus by G. W. Smith against M. M. Beppard. Judgment for relator and respondent brings error.</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Action by W. M. Buford and others against W. T. Chiches-ter and others. Judgment for defendants, and plaintiffs appeal.</p>

Action by J. W. Dawkins against E. S. Ellis. Judgment for plaintiff before a justice,. and on appeal to the intermediate court judgment was again rendered for plaintiff, and defendant brings error.

<p>Error to Circuit Court, Wood County.</p> <p>Action by W. T. Leach against C. C. Mártin, trading as C. C. Martin & Co. Judgment for defendant, and plaintiff brings error.</p>

Proceeding by J. M. Snedeker to contest probate of a writing offered by J. M. Rnlong as the last will and testament of Lula L. Conner, deceased. Erom an order - of the county court admitting same to probate, Snedeker appealed to the circuit court, where judgment denying probate was pronounced, and Rulong brings error.

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

<p>1. Judgment — Conclusivencss—Trespass Quare Clausum Fregit.</p> <p>A judgment for the plaintiff in an action of trespass quare clausum fregit against a defendant, claiming a way over the premises on which the act of alleged trespass was done, is not conclusive o£ the right claimed hy the defendant, unless it is shown to have been relied upon hy the latter as a defense and actually litigated in the action, (p. 236).</p> <p>2. Easements — Ways.</p> <p>A grantor may claim a way over the granted premises, as reserved by implication, if it is shown to he strictly necessary to the Use and enjoyment of adjacent land' retained hy him, and the intent to reserve it is not negatived hy any express terms of the deed. (p. 237).</p> <p>3. Same — Grant or Reservation by Implication — Ways—Necessity for Continuity.</p> <p>The legal principle, requiring an easement to he “continuous” as a requisite to a grant or reservation thereof hy implication, is not applicable to a way. (p. 240).</p> <p>(RobiNSON, Judge, dissents).</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Melvin Harris was convicted .of unlawful shooting, and brings error.</p>

<p>Error to Circuit Court, Bandolph County.</p> <p>E. W. Durr was convicted of selling beer without a license, and brings error.</p>

<p>Coxstitutioxal Law — Due Process of Law — Assessment.</p> <p>An assessment by a city upon lot owners for cost of paving a street is not contrary to Amendment 14 of the National Constitution, or Section 10 of Article 3 of the State Constitution, either because the assessment is by the number of front feet of lots abutting on the street, or because there was no notice of such assessment to the lot owners, (pp. 256-259).</p>

<p>Oxuminal Law — New Trial — Grounds—Confession of Other than Accused.</p> <p>Evidence that a person made a statement that he, and not the accused, committed the crime would not he admissible on a trial of the accused, and therefore is not ground for a new trial. (p. 262).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Wiley Baker and Dick Rader were convicted of keeping a gaining house, and bring error.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by George McDermitt against Lewis Forbes. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by James A. Dempsey, administrator, against tbe Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

County. Bill by C. W. Maxwell, trustee in bankruptcy, against the Davig Trust Company and others. A demurrer to the bill was sustained, and plaintiff appeals.

<p>1. Courts — Review—Jurisdictional Amount.</p> <p>Ii the distributable share of a creditor, in a suit to wind up the affairs of a co-partnership, be less than the sum necessary to give jurisdiction, this Court will not entertain his appeal from a decree denying him such distributive share, (p. 285).</p> <p>2. Appeal axd Error — Review-—Objections Not Raised Below.</p> <p>Eirror, not apparent on the face of a commissioner’s report, talren in connection with the pleadings, or which might be affected by extraneous evidence, will not be available as error in this Court, unless the report has been excepted to on that ground in the court below, (p. 287).</p>

<p>1. Boundaries — Oral Agreement — Binding Effect. ■</p> <p>Disputed boundaries between adjoining tracts of land may be settled by express oral agreement, executed immediately, and accompanied by possession, (p. 290).</p> <p>2. Adverse Possession — Effect—Unlawful Entry and Detainer.</p> <p>Actual, open, notorious, exclusive and continuous adverse possession of land for more than ten years, confers good legal title, enabling the owner to maintain an action for unlawful entry and detainer against one who enters unlawfully, (p. 291).</p> <p>3. Same — Acquiescence by Mistalce — Estoppel.</p> <p>The rule that acquiescence or admissions by a landowner, made under a mistake as to his rights, will not estop him from subsequently enlarging his possession to the limits of his deed, does not apply as against one who has acquired good title by adverse possession, (p. 291).</p> <p>4. Forcible Entry and Detainer — Forcible Entry — Right of Action.</p> <p>If an entry on land, though peaceable, be unlawful, the owner may recover the possession from the intruder in an action of unlawful entry and detained, (p. 291).</p>

Action by Justus Collins against tlie White Oak Fuel Company and another. A verdict for plaintiff was set aside, and he brings error.

<p>1. Easesiexts — Construction—Right-Of-Way.</p> <p>A deed, executed by a number of adjoining and neighboring property owners, in a community partially laid out in town lots, for the purpose of establishing certain roads for their common benefit, conveying the fee simple title of the strips of land constituting the roads to two of their number, and securing to the grantees and all the other parties thereto the right to use the roads “as a right of way for all purposes as completely as if they were a public street,” confers upon all the parties thereto and their successors in title the right to free and wholly unobstructed use of such roads, (p. 310).</p> <p>2. Sahe — Construction by Conduct.</p> <p>The terms of such a deed being plain and unequivocal and its purpose clear, the existence of gates on such roads at the date of the deed and the subsequent maintenance thereof, do not alter the construction by conduct. The rule of practical construction; is not applicable to an unambiguous instrument, (p. 310).</p> <p>3 Same — Title or Right Acquired — Right to Maintain Cates Across Private Way.</p> <p>■ Right to maintain a gate across a private way may be obtained by prescription, (p. 310).</p> <p>4. TENANCY in Common — Rights in Right of Way.</p> <p>A right of way vested in a number of adjoining and neighboring property owners makes them tenants in common of such way. (p. 311).</p> <p>5. Same — Hostile Title of Possession — Acts of Tenants in Common.</p> <p>If one of such persons maintain a gate or gates across such a way without notice to his co-tenants of any claim of right to do so, his exercise of such privilege is deemed to have been permissive and not adverse, (p. 311).</p>

<p>1. Texaxcy ix Common — Adverse Possession.</p> <p>Adverse possession between co-tenants. Some principles restated. (p. 315).</p> <p>2. Frauds — Statute of — Conveyance of Title to Land — Parol Disclaimer.</p> <p>Vested title in land cannot be'devested by mere parol disclaimer. The following wnliing does not do so: “This receipt is to show I have no interest in the 350 acres that Preston sold to Cherry River Company. This the 20 day of January, 1900. S. H. Clark.” (p. 318).</p> <p>3. Appeal and Error — Review—Weight of Evidence.</p> <p>The Supreme Court will pass on the weight and effect of oral evidence on a motion for a new trial when the justice of the case, in its opinion, demands it, though there be other ground of reversal, (p. 318).</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Columbes Belcher was convicted of murder, and he brings error.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by John H. Spencer against C. B. Bickard. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Eminent Domain — 'Notice to Landowner.</p> <p>A county court lias no warrant in law to order that a land owner be proceeded against by a suit for condemnation of a right of way for a proposed road through his land, and later to order that a road he built thereon, without first giving him notice to appear and show cause against the road undertaking, (p. 330).</p> <p>2. Same — Proceedings to Establish — Notice to Landowners.</p> <p>Proceedings of a county court for the establishment of a road, had without notice to the owner of the land proposed to be taken as prescribed by Code 1906, cli. 43, sec. 36, and in which no opportunity was afforded him to be heard before an order directing a condemnation suit against his land, are erroneous, illegal, and reversible, (p; 332).</p> <p>3. Motions — County Courts — Special Session — Notice.</p> <p>An order of a county court made at a special session is a mere nullity if the record does not show that the court acquired jurisdiction to make the order by the promulgation of the notice of the special session as required by law and the inclusion in that notice of the subject to which the order pertains, (p. 332).</p>

Action by the National Bank of Weston against Tliursey M. Lyncb and others. Judgment for plaintiff, and defendant Thursey M. Lynch brings error. Robert L. Bland, for defendant in error.

Appeal by John P. Kerfoot, as trustee, against A. S. Dand-ridge and others. Decree for -plaintiff, and Hugh A. White, executor, and others, appeal.

<p>Error to Circuit Court, Randolph County.</p> <p>Action by Charles E. Mylius against the Raine-Andrew Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judgment — Setting Aside — Appearance of Unknown Defendant.</p> <p>The right of a party to a suit or action, proceeded against as an unknown party or non-resident defendant, to appear and make defense, within the time, in the manner and upon the conditions, prescribed by sections 14 of chapter 124 and 25 of chapter 106 of the Code of 1906, is absolute, and the duty of the court to admit him, for such purpose, upon showing a proper status and compliance with the conditions, ministerial, (p. 371).</p> <p>2. Mandamus — When Granted — Setting Aside Judgment.</p> <p>Mandamus lies to enforce such right, when it has been denied. (p. 372).</p> <p>3 Same — Writ of Rehearing of Judgment — Sufficiency of Petition.</p> <p>The filing of a proper petition for a rehearing under said sections, is a demand for such right, and rejection thereof by the court a default or refusal, sufficient for an application for a mandamus to compel enforcement thereof, (p. 372).</p> <p>4. Judgment — Non-resident Defendant — Bond for Oosts — Petitions —Filing.</p> <p>Neither the bond for costs, required by said provisions, nor the defenses of the applicant for admission need be filed or tendered with such petition, (p. 373).</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Bill by Paul Golden and others against Daniel O’Connell and others. Decree for plaintiffs, and defendant O’Connell, appeals.</p>

<p>EvideNce — Parol Evidence — Contradicting Written Contract.</p> <p>A written contract cannot be added to or contradicted by oral evidence of different stipulation, (p. 378).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by J. W. Ellison, Son, & Co. against the Plat Top Grocery Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Garfield Chandler, by his next friend, against the American Car & Foundry Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Justices cot the Peace — Appeal—Pleading.</p> <p>If plaintiff’s account, filed with a justice of the peace, is sufficient to inform defendant of the nature and amount of his claim, it is not error for the trial court-, on appeal, to refuse a motion by defendant to require plaintiff either to file a written declaration of his claim, or to amend his bill of particulars, (p. 397-).</p> <p>2. Fraud — Statute oe — Oral Agreement — Exchange of Land — Recovery of Consideration.</p> <p>The statute of frauds will not avail to defeat an action on a money demand growing out of, or constituting a part of the consideration for, an oral agreement for the exchange of lands, after deeds have passed, (p. 398).</p>

Action by Mary C. Castle and others against George M. Castle and others, and by Joseph W. Castle against Milford C. Gibson. Suits were consolidated and a decree made, dismissing both, and Joseph W. Castle appeals.

<p>Error to Circuit Court, Cabell County.</p> <p>Action' by Richard Denny against the American Car & Foundry’ Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal AND ERROR — Jurisdictional Amount.</p> <p>A defendant cannot acquire a right of appeal by filing a counter claim which, is manifest!}'' specious and not provable, (p. 408).</p> <p>2. Justices oe the Peace — Amotint in Controversy — Bight to Appeal.</p> <p>Tbe amount in controversy before a justice of tbe peace cannot be increased by a fictitious counter claim, so as to entitle tbe defendant to an appeal, or to a writ of error in case an appeal is denied bim by the justice and tbe circuit court, (p. 408).</p> <p>3. Right to Appeal prom Justice.</p> <p>Quaere: Does a defendant in a case before a justice of tbe peace acquire tbe right to appeal by filing even a bona fide counter claim of appellate amount, if be offers no evidence on tbe trial before the justice in support thereof? (p. 410).</p>

<p>Appeal from Circuit Court, Kandolpb County.</p> <p>Bill by C. Ii. Scott and others against L. H. Keenan and others. Decree for defendants, and plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Ohio County.</p> <p>Suit by Emma W. Maxwell against A. 0. Maxwell. Decree for defendant, and plaintiff appeals.</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by John Mills against James A. Edgell. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit 'Court, Berkeley County. '</p> <p>Action by the Hannis Distilling Company against the County Court of Berkeley County. Judgment for defendant, and plaintiff brings error.</p>

<p>Damages — I Destruction of Roof.</p> <p>In an action for destruction of a roof of a bouse, the measure of damages is the value of the roof, that is, what it would cost to replace it new, less an allowance for depreciation from use, age or like cause, (p. 435).</p>

<p>Waters and Water Courses — Railroad Embankment — Change of Chann el — Liability.</p> <p>If a railroad company make a fill or embankment along a stream which, changes the channel and current, and thus cause land of a riparian owner across the stream to he washed away, it is liable for the damage, and is not exempt from liability by the authority conferred on it by the state to build its road. (p. 437).</p>

<p>3. Taxation- — Illegal Assessment — Remedies of Owner.</p> <p>If an assessor assesses land, which is not liable for taxes, the party aggrieved has a right to appear before the hoard of review and equalization and have such erroneous assessment corrected by said board, in the manner provided by section 18 of chapter 29, Codfj 1906, as amended by chapter 80, Acts 1907. If said board should refuse to make the correction he can appeal to the circuit court, (p. 441).</p> <p>2. - Samé — Review—Appeal to Supreme Court.</p> <p>In the matter of such appeal, the circuit court acts judicially when it decides the question of the liability, or non-liability, of the property to taxation, and the judgment of the circuit court is subject to review, upon writ of error, by this Court, when the taxes levied on such property amount to $100, or more, (p. 440).</p> <p>3. Same — Assessment—Exemptions—Government Lands.</p> <p>If land, once owned and used by the United States for governmental purposes, be sold to private persons, pursuant to an act of Congress, and the legal title retained to secure the future payment of any part of the purchase money, it is not liable to taxation by the State or by any of the State’s governmental agencies, so long as- the lien in favor of the United States remains unsatisfied, (p. 442).</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Action by Daniel Hunt against Joe DiBacco and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by W. C. Mullen against M. J. Cook and another. Judgment of dismissal, and plaintiff brings error.</p>

<p>1. Trusts — Express Trusts — ■Enforcement—Variance.</p> <p>If an express trust, admitted and declared in the answer of a defendant, he substantially the same as that alleged in the bill, it will he enforced according to its terms, though the trust so declared differ in form or details from the trust alleged, (p. 467).</p> <p>2. Frauds, Statute of — Tktjsts—Express Trusts — Statute of Frauds — Pleading Defense — Waiver.</p> <p>Such an express trust relating to land, though unenforceable under the statute of frauds in the State of Iowa where the land is situated, is not void; and if in a suit brought in this State to enforce such trust, respecting the proceeds of the sale of such land, the trustee in his answer admits and declares such trust, not relying therein on the statute of frauds, he will be treated as having waived the benefits of the statute of frauds, and the trust enforced, (p. 467).</p> <p>3. Trusts — Enforcement—Def enses — Limitations.</p> <p>Baches or the statute of limitations constitute no defense in a suit in equity to enforce the provisions of an express trust, except under such circumstances as would render it inequitable to enforce the same. (p. 4C8).</p> <p>4. Guardian and Ward — Estate—Action to Recover — Limitations— Laches.</p> <p>A ward is not barred in equity by laches, or the statute of limitations, from recovering his estate from his guardian, (p. 468).</p> <p>5. Same — Accounts—Settlement—Disbursements Beyond Income.</p> <p>The guardian of an infant in settlement of his accounts is not entitled to credit, or to be reimbursed out of the principal of his ward’s personal estate, for disbursements beyond the income from his personal estate, and the rents and profits of his real estate without previous order of the court, (p. 469).</p> <p>6. Same — Disbursements—Collegiate Education.</p> <p>Disbursements by guardian beyond the income of his ward’s estate for necessaries furnished him, without the previous order of the court, and for which he may be credited in settlement, or be reimbursed out of the principal of the ward’s personal estate, do not include disbursements for collegiate education of such ward. (p. 470).</p> <p>7. Same — Guardian De Facto — Accounting.</p> <p>Although one not legally appointed and qualified as such, but acting as guardian of an infant, can not be required to account by or before a commissioner of accounts, or by a court of probate of this state, yet in a court of equity he may be required to account in the same way as if he had been duly appointed and qualified as such guardian, (p. 470).</p> <p>Brannon, Judge, Absent.)</p>

<p>1. Indictment and Information — Bills of Particulars.</p> <p>The law of hills of particulars applies to criminal and civil cases, (p. 473).</p> <p>2. Same — Bills of Particulars — Larceny.</p> <p>Under an indictment for simple larceny a bill of particulars specifying the character of larceny to be proven may be demanded by the defendant, (p. 474).</p> <p>3. Criminal Law — Trial—Talcing of Papers to Jury Room.</p> <p>A letter given in evidence to a jury, may be taken by the jury to its room on its retirement to consider the case, if the jury so request, (p. 475).</p> <p>4. Same — -Instructions-—Circumstantial Evidence.</p> <p>■When the inculpatory evidence against an accused is circumstantial, it is error to refuse him an instruction which correctly states the force of such evidence required for conviction and the principles by which it is to be weighed and considered, (ppi 475,-47G).</p>

<p>Petition by Homer Smith ancl others for mandamus to E. B. Mitchell, Clerk of the County Court of Mason County.</p>

<p>Appeal from Circuit Court, Hancock County.</p> <p>Bill by Charles F. Allison and others against City of Chester and others. Decree for defendants, and plaintiffs’ appeal!</p>

<p>Error to 'Circuit Court, Kandolph County.</p> <p>Action by Ed Johnson against the Wheeler Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by W. R. Gray and others against Crockett Mankin. Judgment for plaintiff and defendant brings error.</p>

<p>Error to Circuit Court, McDowell County.</p> <p>Frank Welch was convicted of carrying a revolver, and brings error.</p>

<p>1. Process — -Amended Declaration — 'Necessity.</p> <p>Where an amended declaration, not presenting a ne.w cause of - action, is filed by leave of the court, and remanded to rules, process thereon is unnecessary, and it may he regularly proceeded with by rule to plead, either to an office judgment, or an issue, without service of summons to answer the same. (p. 551).</p> <p>2. Judgment — Amended Declaration — Necessity of Service — Re-w.oval from County.</p> <p>The removal by defendants to a county other than that in which suit is brought, after service of process on them to answer the original declaration, and where they then resided, will not deprive the court of jurisdiction to proceed to judgment against them on such amended declaration, though served with new process, directed to and served on them byi the sheriff of the county to which they have been removed, and their plea in abatement to such amended declaration should be rejected, or stricken out. (p. 551).</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Action by Henry Wooldridge and others against James Wool-dridge and others. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Clifford Schoonover against the Baltimore & Ohio-Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>■ Vendor and Puectcaser — Constructive Trust in Land — Notice of Equitable Title in Third Person.</p> <p>In a suit in equity, the object of which is to establish a constructive trust in land, founded upon an alleged fraudulent conveyance, made by a corporation, the fact that the deed of the corporation was delivered in consideration of money paid to, or a debt due from, the president of the corporation, without proof of want of consideration moving from the president to the corporation, is not notice of an equitable title to the land, so conveyed, in a third party, (p. 584).</p> <p>Corporations — Fraud of Agent — Notice.</p> <p>That one of two deeds, contemporaneously delivered to the same grantee, subsequently turned out to have been forged, and was canceled as a forged deed, is not alone evidence of fraud on the part of the grantee in the acceptance of the other deed, or of knowledge, on his part, of fraudulent intent, on the part of the grantor or his agent, in executing and delivering the same, (p. 585.)</p> <p>Vendor and Purchaser — Bona Fide Purchaser for Value — Burden of Proof.</p> <p>When a claim to protection as a bona fide purchaser for value and without notice is involved, the burden is on the party denying the validity of the purchase, to prove notice of his equity, and, upon the other party, to prove good faith and payment of an adequate consideration, (p. 590).</p> <p>Same — Bona Fide Purchaser — Consideration.</p> <p>If the property in question in such case has been purchased alopg with numerous other pieces of property for a lump sum, the purchaser is not denied protection because he is unable to show that a specific price was fixed upon the property in controversy, if he proves payment of an adequate consideration for all the property included in the purchase, (p. 590).</p> <p>Depositions — Examination of Party Before Trial — Refusal to Answer Questions — Necessity for Ruling.</p> <p>A decree pronounced upon the pleadings and evidence, as made up and filed in the court below, will not be reversed for failure of a defendant, examined as a witness in another state, to answer questions propounded to him, if it appears that he lias submitted to an examination, answered many of tbe questions, substantially covering tbe case, but declined to answer others, claiming be is not bound to do so, and no ruling of tbe court below, respecting his duty to answer, has been asked for or taken, and he has had no opportunity to answer them after an adverse ruling on bis objections thereto. By submitting the case, without having made an attempt to obtain answers to tbe questions, the plaintiff is deemed to have waived any rights be may have had respecting them. (p. 588).</p> <p>6,. Pkincipal and Agent — Notice to Agent Binding Upon Principal.</p> <p>Tbe principle of law making notice to an agent bind bis principal, applies in the case of a purchase of property through an agent, in violation of an equitable title thereto, or right respecting it, in a third party; and, if the agent with such notice purchases the property for his principal, the latter holds the title ■ in trust for such third person, (p. 594).</p> <p>7. Same — Existence of Relation — Necessity for Express Contract.</p> <p>Proof of an express contract of agency is not essential to the establishment of the relation. It may be inferred from facts and circumstances, including conduct, (p. 595).</p> <p>8. Same — Agency for Both Parties to Contract.</p> <p>The law does not inhibit agency for both parties to a contract, (p. 594).</p> <p>9. Same — Suit to Establish — Sufficiency of Bill.</p> <p>A bill against a purchaser of land who has acquired it by an agent, on the theory of a purchase, in violation of an equitable right in tho plaintiff, known to the agent at the time of the purchase, need not aver notice to the principal by or through the agent. It suffices to charge notice of the right generally, (p. 594).</p>

<p>1. Contbacts — Construction—Extrinsic Matters.</p> <p>To ascertain the intent of the parties to a contract, respecting' a portion thereof, stated in general and indefinite terms, reference may he had to the subject matter, the situation of the parties, their aims and purposes and the circumstances, as well as the other provisions of the contract, (p. 603).</p> <p>2. Loos and Logging — Bate of Lumber — Construction of Contract.</p> <p>Under á contract of sale of a large quantity of lumber by a manufacturer thereof to a dealer for re-sale in the market, providing for certain percentages of the entire quantity in certain lengths, and stipulating for widths by the use of the phrase “4 to 12” wide”, the vendor is bound to furnish in all large shipments reasonable percentages of all widths and lengths covered by the contract, if demanded by the vendee, (pl 603).</p> <p>3. Same — Bale of Lumber — Performance of Contract.</p> <p>In such case refusal of the vendor to deliver a portion of the amount sold, because the vendee declined to receive a large portion. of it in a single installment containing only narrow 'and sliort boards, constitutes a breach of the contract, (p. 605).</p> <p>4. Sales — Action for Price — Set-off—Profits.</p> <p>Gains or profits of the vendee prevented by such breach may be recouped in an action for purchase money of the lumber furnished under the contract, (p. 605).</p> <p>5. Customs and Usages — Effect on Contract.</p> <p>In an action involving the interpretation of a contract, a custom or usage, consistent with the terms of the contract, peculiar to the subject matter thereof, known to the parties, and probably intended to be included in the contract, as shown by their situation and purposes, the nature of the subject matter and the attendant circumstances, is admissible in evidence, (p. 604).</p> <p>6 Witnesses — Examination—Assumption as to Facts.</p> <p>If, on the trial of an action for damages, for a breach of contract, the breach appears as matter of law from undisputed facts and circumstances, the court may permit an attorney, in examining witnesses as to the quantum of damages, to assume the existence of the breach, (p. 605).</p>

<p>Petition by John Baker White for writ of prohibition against R. W. Dailey, judge, and the town of Romney.</p>

<p>Municipal CORPORATION — Tax Sale — Failure to Record Tax List.</p> <p>Points of syllabus ,ln Ritchie Lumber Go. v. Rutter, 66 W. Ya. 44, re-affirmed and applied, (p. 6Í2).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the Capital City Supply Company against Thomas C. Beury. Prom a judgment for plaintiff, defendant brings error.</p>

<p>Feaudulent Conveyances — Participation of Grantee.</p> <p>To maintain a suit to set aside a deed of trust as one-made with intent to hinder, delay, or defraud creditors, it must be showm that the trustee or the beneficiary participated in the unlawful intent, (p. 618).</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bill by Mary A. Perry and others against George E. McDonald and others. Decree for plaintiffs, and defendant McDonald appeals.</p>

<p>Estopi>el by Conduct.</p> <p>The principles of estoppel enunciated in Railroad Co. v. Per-due, 40 W. Va. 442: Bates v. Swiger, Id. 420; Stone v. Tyree, 30 W. Va. 687; Williamson v. Jones, 39 W. Va. 231; Id. 43 W. Va. 562, 4 Am. & Eng. Cases in Eq. 258, 371, and note; Atkinson v. Plum. 50 W. Va. 104; Manly v. Wotterson, 39 W. Va. 214, and Pomeroy Eq. Jur., sec. 807, applied to the facts in this case, (pp. 621 to 626).</p>

<p>Divoece — Adultery—Desertion—Evidence.</p> <p>On a bill by a husband seeking a divorce a mensa et thoro on the ground of desertion, and an answer and cross-bill by defendant, admitting desertion, but charging adultery in justification thereof, and as a ground also fór a divorce a vinculo matri-monii prayed for, the facts proven show desertion by the wife, but not adultery by the husband, entitling him to the relief prayed for, and precluding her from a divorce from the bonds of ■ matrimony, (pp. 626 to 634).</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Kelly-Springfield Road Eoller Company against W. It. Coffman. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bills by W. P. Cecil and others, and by J. R. Hill and others against E. W. Clark and others. From an allowance of certain attorney’s fees W. H. H. Allen and others appeal.</p>

<p>Error to Circuit Court, Tyler County.</p> <p>James Henaghan was convicted of keeping a slot machine and brings error.</p>

<p>Petition by Edmund R. French for writ of mandamus against W. R. Bennett, Judge, and others.</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill by Gustavus J. Cresap and others against Nannie I. Brown and others. Decree for defendants, and complainants appeal.</p>

<p>1. CORPORATIONs — Receivers—Grounds for Appointment — Insolvency.</p> <p>Code 1906, ch. 53, sec. 58, gives a remedy hy receivership to any stockholder or creditor, for the vindication of his rights, if he shows sufficient cause for invoking that remedy, (p. 669).</p> <p>2. Same.</p> <p>A receiver of the property and assets of p, corporation may properly he appointed, at the suit of a stockholder or creditor, under Code 190G, ch. 53, sec. 58, whenever the corporation has become so hopelessly insolvent that plaintiff’s rights will suffer by depreciation and loss, arising from forced sales and large costs in the multiplicity of suits by creditors, if a receiver is not appointed, (p. 669).</p> <p>3. Same.</p> <p>Mere insolvency is not sufficient ground for the appointment of a receiver of a corporation, but necessity to prevent impending depreciation and loss from insolvency so hopeless that the corporation can continue no longer in business, is sufficient ground, (p. 670).</p> <p>4. Same — Receivers—J udgment — Lien—Priority.</p> <p>A judgment against a corporation, obtained after a receiver has been duly appointed for its property and assets in a suit to administer the same, does not become a lien taking priority over other claims, (p. 671).</p>

<p>Appeal from Circuit Court, McDowell County.</p> <p>Suit "by Geo. P. Hall & Co. against the Williamson Grocery Company and another. Prom a decree for defendants, plain-tifEs appeal.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by M. L. Daniels and others against the Randolph County Court. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Mechanics’ Liens — Proceedings to Perfect — Statement of Amount Due — Sufficiency.</p> <p>The “just and true account of the amount due”, required by section 4, ch. 76, Code (1906) to preserve a lien for labor, or material furnished, given by section 2, of said chapter, if the contract therefor be made directly with the owner of the property, need not state the account by items giving the year, month and day, though it is proper, and the better practice to do so. (p. 685).</p> <p>2. Same — Proceedings to Perfect — Statement of Amount Due— Sufficiency — Pleading.</p> <p>And although it is essential to the validity of such lien that said account be filed in the clerk’s office within sixty days after the lienor ceases to labor or furnish material, it need not show affirmatively on its face that it was so filed within the time prescribed. In a suit to enforce such lien, however, this fact with all other facts necessary to a valid lien must be alleged and if controverted fully proven, (pp. 685, 686).</p> <p>3. Same — Enforcement—Bill—Effect.</p> <p>If the bill to enforce such a lien alleges the existence of all facts essential to a valid lien for labor or material, and these allegations are not controverted, they must for the purposes of the suit be taken as true, unless some exhibit filed therewith and vouched for the truth thereof, impugns the truth of some one or more of the material facts alleged, (pp. 685, 686).</p> <p>4. Same — Enforcement—Bill—Variance.</p> <p>The fact of the filing of such account in the county clerk’s office within the time required by said section 4, ch. 75, Code (1906) when so alleged in the bill, and proven or not controverted by answer, is not impugned by the original of such account filed as an exhibit with the bill, which does not show on its face the year the last material was furnished, or by the endorsement by the clerk on the back thereof showing the date of the filing thereof and the book and page where recorded, which does not appear to be'signed by such clerk, (p. 688).</p> <p>' 5. Railroads — Liens—Proceedings to Perfect — Statement of Claim ■ — Description of Property — Sufficiency.</p> <p>A lien for material furnished a railway company for constructing its railway which described the property on which the lien is claimed, as “the railway of said corporation situate in the Counties of Wetzel and Tyler and extending from the City of Sistersviile in Tyler County to the Town of Brooklyn in Wetzel County", is “sufficiently accurate” for identification, and satisfies all requirements of said section 4, ch. 75, of the Code, (p. 689).</p> <p>6. Appeal and Error — Presentation of Questions in Lower Court— Exceptions — Necessity.</p> <p>If error of law appear on the face of a decree, or the report of a commissionei, though not excepted to, it may be corrected on appeal to this Court by the party aggrieved thereby, (p. 690).</p> <p>7. Mokígases — Priority—Mechanics’ Hens.</p> <p>A mechanics' lien begins from the time the labor or the furnishing of material begius, and has priority over a deed of trust subsequently executed on the same property, (p. 691).</p>

<p>Limitations or Actions — Computation—Commencement of Action— New Action After Dismissal.</p> <p>One whose action, commenced within the time allowed by law, has been erroneously dismissed on a plea in abatement for variance between the writ and the declaration, after refusal to permit an amendment of the writ, may bring a new action, having the same purpose as the one dismissed, within a year after the date of dismissal, though after his right of action would have been barred by limitation, had the dismissed action not been instituted. i (pp. 692 to 694).</p>

<p>Appeal from Circuit Court, Eandolpb County.</p> <p>Action by Harrison Bnrkhart against C. H. Scott and others. Prom a judgment for plaintiff, defendant Scott appeals. Decree reversed and original bill and cross-bill dismissed, without prejudice to rights of parties to pursue remedies at law.</p>

<p>Error to Circuit Court, Randolph County.</p> <p>Action by C. C. Coberly against S. W. Gainer and others. Judgment for defendants, and plaintiff brings error.</p>

<p>3. Appeal a.\d Error — Record,—Yaco,lion Order of Judge.</p> <p>A vacation order made by the trial judge, under his signature and seal, within the time fixed by law for saving and certifying hills of exceptions, which order is in itself a veritable bill of exceptions, specifically pointing out and identifying by certain and sure references the stenographer’s transcript of evidence and other papers pertaining to the trial, and declaring that they are thereby made a part of the record, operates to bring into the record the evidence and papers referred to, though not embraced in formal bills of exceptions, (pp. 705-C).</p> <p>‘¿. Logs axtd Logging — Deed of Standing Timber — Construction.</p> <p>A particular enumeration of the kinds of standing timber meant to be conveyed, contained in the granting clause of a deed, will not be enlarged by a separate and subsequent general clause stating that the intention of the parties is to convey all the timber included in the bounds named in the deed, but the general words used in the latter clause will be held to apply to timber ejuscTem generis with that specifically named. (pp. 707-8).</p> <p>3. Trespass — Gutting Growing Timber — Measure of ¡Damages.</p> <p>For the cutting of growing timber having no more than ordinary commercial value, a proper measure of damages is the market value on the stump, (p. 709).</p> <p>4 Same — Gutting Timber — Exemplary Damages.</p> <p>Exemplary damages are not awurdable for the cutting of timber when it appears that the trespass was not wanton but was committed under a bona fide claim of right, (p. 709).</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Bill bjr Mary Catherine Couch against Sarah F. Eastham. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill in equity by W. L. Mustard against the Big Creek Development Company. From a decree dismissing the bill, plaintiff appeals.</p>

<p>Error to Circuit Court, 'Wyoming County.</p> <p>Hayes Cook was convicted of voluntary manslaughter, and brings error. ,</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Bill in equity of Abigail Carper against Maggie B. Ohenoweth. From a decree for defendant, plaintiff appeals.</p>

<p>Original proceedings by L. N. Frantz and others for mandamus to the County Court of Wyoming County and others.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by Lucien H. Davis against the Mabscot Coal & Coke Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. CiiBATiOisr or Offices — Constitutional Provisions.</p> <p>Chapter 4, Acts 1904, extra session, found in code, edition 1906, ch. 29, is not unconstitutional in its provision creating the office of T'ax Commissioner. He is a lawful state executive officer, (p. 744).</p> <p>2. Same.</p> <p>The Legislature lias power under tire constitution to create subordinate executive state offices in addition to those specified in section 1 of article VII of the constitution, (p. 744).</p> <p>3. Same — ■Duties of Officers — Statutory Provisions.</p> <p>Chapter 33, Acts of 1908, extra session, is not unconstitutional in its provisions requiring public officers in keeping accounts of public moneys, to conform to the system and forms prescribed by the state tax commissioner and board of public works, (p. 751).</p>

<p>1. Refoemation of Insthuments — Mistake in Deed.</p> <p>Before equity will reform a deed, on the ground of a mistake, it must be established by clear proof that the mistake was mutual between grantor and grantee, (p. 759).</p> <p>2. Deeds — Construction—Description of Land.</p> <p>If a grantor describe the land intended to be conveyed by his deed, only in general terms, and then make reference to another deed of conveyance for the same land which contains a more certain description of it by boundary lines and corners, for the purpose of a more definite description, he thereby adopts such lines and corners as a part of the description of the land which he conveys, (p. 758).</p> <p>3. Same.</p> <p>If two inconsistent descriptions of land, intended to be conveyed, are contained in a deed of conveyance, one general and indefinite as to boundaries, and the other specific as to boundary lines and corners, the latter description will prevail over the former, (p. 758).</p>

<p>Original proceeding by Fred 0. Blue, State Tax Commissioner, for mandamus to S. P. Smith, Sheriff of Kanawha County.</p>

<p>Error to Circuit Court, Fayette County.</p> <p>Action by M. L. Painter, administrator, against James L. Long and others. Judgment for plaintiff, and defendant B. 1ST. Case brings error.</p>

<p>Error to Circuit Court, Nicholas County.</p> <p>C. B. Huffman was convicted of arson, and brings error.</p>

<p>Master and Servant — injury to Servant — Liability of Master-Premises of Third Person.</p> <p>A master, having contracted, temporarily to perform labor, by and through his servants, upon premises owned and fully controlled by another person, and having no knowledge of danger to his servants from defectiveness of the premises or machinery and appliances of such third person, incidentally and casually to be occupied and used by them for the purpose, and not having guaranteed the safety or suitableness thereof, is under no duty to inspect the same, nor liable for an injury to his servant, occasioned by defects thereiu. (pp. 778 to 790).</p>

<p>Sat.es — Contract■—Fraud—Action to Cancel — Burden of Proof.</p> <p>One who seeks to cancel a contract of sale for fraud and duress must carry the burden of proof, and furnish clear and full proof of such fraud and duress. (Deetnoater v. Reniolc, 59 W. Va. 343.) (pp. 790 to 795).</p>

<p>1. Pleading — 'Declaration—Ad Damnum Clause.</p> <p>A declaration in an action, even though, sounding in damages, is not demurrable because it does not state the amount of damages claimed, in the form of an averment. It is sufficient if it appear in any part of the declaration. The ad damnum clause, while consistent with good form in pleading, is not indispensable. (p. 796).</p> <p>2. Municipal Cobpobations — Torts—Defects in Streets — Liability of Abutting Owners.</p> <p>The opening of a ditch in a public street, for the purpose of laying a pipe to connect a dwelling house with the water main, is not, per se, a nuisance, and does not make the owner of the house liable to a person injured by falling into the ditch, unless such owner has been guilty of negligence, (p. 799).</p> <p>3. Masteu and Sebvant — Liahilities to Third Persons — Worlc of Independent Contractors — Unguarded Excavation.</p> <p>If the owner of a house let the work of opening the ditch, and laying the pipe, to an independent contractor, and such contractor cause the ditch to be dug, and to be left open and unguarded, and a traveler upon the street fall into it in the nighttime and is injured, without fault on his part, such independent contractor is liable, (p. 799).</p> <p>4. Same — -Liahilities to Third Persons — Notice.</p> <p>The master is liable for the negligence of his servant in the . performance of a duty to the master within the scope of the servant’s employment. (p. 798).'</p> <p>5. Texal — Instructions—Construction Together.</p> <p>An. instruction which, deals only with matters relating to the quantum of damages, is not erroneous because it assumes right of recovery, provided another instruction has been given properly instructing the jury in regard to the essential facts constituting such right of recovery. In such case it is proper to consider the two instructions together, (p. 799).</p>