Volume 72 — West Virginia Reports

<p>1. Creditors’ Suit — Rent of Land — Goal in Place.</p> <p>Tlie general rule requiring that a judgment debtor’s lands’, he rented, if the same will rent for sufficient in five years-to pay his debts, is inapplicable to coal in place owned by him, and having no rental value, (p. 2).</p> <p>2. Inteeest — Rate—Effect of Contract.</p> <p>It is error to decree interest at six per cent, when the notes; or other contracts evidencing the debts bear a less rate of interest, (p. 3).</p> <p>3. Deeds — Construction—Interest Conveyed.</p> <p>A deed which purports to convey part of a larger tract, but; which does not attempt to locate the part conveyed, should be-construed as conveying an undivided interest in the larger-tract. Such deed is not void for uncertainty, (p. 4).</p> <p>4. Vendos and Purchases — Property Subject to Execution — Undivided Interest — Mode of Sale.</p> <p>Where undivided interests in a larger tract, composed of numerous tracts each subject to a prior vendor’s lien, are so-conveyed, and it is impracticable in selling the larger tract, or the several tracts composing it, for the purchase money liens thereon, to respect such undivided interests, it is not error to order the tract or tracts sold as an entirety to satisfy such, vendor’s liens, though not subject to the judgment liens decreed against other lands of the debtor, and leave the subsequent alienees to take their interests out of the proceeds remaining after payment of such vendor’s liens, (p. 5).</p> <p>5. Same.</p> <p>And where such undivided interests in a larger tract, composed of numerous tracts, so conveyed, are subject to such prior vendor’s liens and to the liens of prior judgments and attachments, and it is impracticable to sell the land or interests therein in the inverse order of alienation, or to sell first the interests of the debtor therein without 'detriment to all other interests, it is not error to decree a sale of the entire tract, leaving such alienees to take their interests out of the surplus funds, if any. (p. 6).</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by the County Court of Tyler County against Will E. Long, sheriff. From a judgment for defendant, plaintiff brings error.</p>

<p>Appeal from Circuit Court, Kandolph County.</p> <p>Bill in equity by John T. Murpby and another against Alfred Fairweatlier, Sr., and another. From a decree for plaintiffs, defendants appeal.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>■Bill by James P. Clark against Charles Hazlett. Decree for' plaintiff, and defendant appeals.</p>

<p>1. Bills and Notes — (Draft—Action by Payee,</p> <p>In absence of evidence to the contrary, proof showing a draft as part consideration for the purchase of real estate, drawn by the purchaser, at the instance of the seller, to one negotiating the sale, is prima facie sufficient, with the draft itself, to warrant recovery in any proper action by the payee against the drawer, (p. 24).</p> <p>2. Same — Consideration.</p> <p>Such proof shows a contract upon a valuable consideration. (P. 24).</p> <p>3. Same' — Action on Draft — Evidence.</p> <p>The trial court erred in excluding the evidence and directing a verdict for defendant, (p. 24).</p>

<p>Error to Circuit Court, Pocahontas County.</p> <p>Action by P. A. George and others against M. M. Collins. Judgment for plaintiffs, and defendant brings error.</p>

A bill in equity by the City Bank of Wheeling and others against W. J. Bryan and others. From a decree for defendants, plaintiffs appeal.

<p>Evidence — Parol Evidence — Note Executed Toy Agent.</p> <p>If a note on its face is the undertaking of the agent only, no reference being made to his representative character, parol evidence will not be allowed to exonerate the agent, whether the principal was known or unknown at the time the ■note was executed; hut if the'note hears on its face appellation indicating that it was signed in a representative capacity, parol evidence is admissible, as against an immediate party or a holder with notice, to show that the obligation is that of a principal only and that it was so understood when the note was executed.</p>

<p>1. Reformation of Instruments — Mistake in Deed.</p> <p>If in making and executing a deed for land there be mutual mistake in course and distance, in the covenants of -warranty, in the recital of the number of acres conveyed, for a deficiency in which the grantee may be entitled to an abatement of purchase money, the deed may, on bill filed by the grantee, be corrected and reformed in accordance with the facts and the contract of sale. (p. 53).</p> <p>2. Deeds — Description of Land Conveyed — “More or Less”,</p> <p>If a deed, in describing the land conveyed, calls for a certain number of acres “more or less”, the words quoted, without more, will not affect the positive character of the representation as to acreage, nor necessarily evince intent to change the original contract from a sale by the acre to one in gross, (p. 53).</p> <p>3. Evidence — Parol Evidence — Interpretation of Deed.</p> <p>When there has been a sale of land by the acre and not in gross, and the consideration recited in the deed is an exact multiple of the number of acres purporting to be conveyed thereby, and the land conveyed is described as containing a certain number of acres, followed by the words “more or less”, the deed is thereby rendered ambiguous, and parol proof may be admitted in aid of the proper interpretation of the deed. (p. 53).</p>

<p>Appeal from Circuit Court, -Lincoln County.</p> <p>Bill in equity by Lena Chapman and others against J. R, Branch and others. From a decree for defendants, plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Bill by G. E. Crotty against the New Kiver & Pocahontas Consolidated Coal Company. Decree for defendant, and plaintiff appeals.</p>

<p>1. Wills — Construction—Property Conveyed — Principal or Income.</p> <p>Where by apt language a testator manifests an intent to sever the product of any species of property from its source, as where only a life estate in the income is given, with remainder over, a bequest of income will not carry an absolute estate in the principal, (p. 78).</p> <p>2. Same.</p> <p>Where a testator bequeathes to his wife “the rents, issues and profits” of personal property to “hold and enjoy during her natural life,” and to his children “the reversion or remainder” of all his estate, the widow takes by the will only the usufruct of the personalty; and she can not voluntarily impair or diminish the corpus thereof to the detriment of her successors in title, (p. 77)'.</p> <p>8. Live Estate — Release by Life Tenant.</p> <p>The release by the widow of a lien securing the principal and interest of notes forming part of such bequest is ineffectual as a discharge of the security, the remaindermen not assenting to such release, (p. 77).</p> <p>4. Sales — Bona Fide Purchasers — Constructive Notice.</p> <p>Whatever is sufficient to direct the attention of a purchaser to prior rights and equities of third persons, so as to put him on inquiry to ascertain their nature will operate as notice to him. (p. 78).</p>

<p>1. Deeds — Grounds—Mistake.</p> <p>If a purchaser of a lot of ground for building purposes takes a deed therefor, describing it by metes and hounds and as forty feet wide, and it is afterwards discovered to include a part of an unused public alley, not discontinued by the municipality thus reducing the size of the lot to thirty-two feet, such reduction so materially affects the lot for the -purpose intended as to confer upon the purchaser the right to have the , deed rescinded, (p. 82).</p> <p>2. Canoellaton oe Instruments — Nature of Remedy — Existence of Legal Remedy.</p> <p>Equity will grant relief to the party injured by rescinding a contract for fraud or mistake, as to a matter materially affecting the substance of the thing contracted for, notwithstanding he has a concurrent legal remedy for the same wrong, (p. 85).</p> <p>3. Dedication — Acceptance—N on-user.</p> <p>•A public street or alley may be created by a dedication of the land for that purpose by the proprietor, and acceptance by a municipality; and a public easement .so acquired is not lost by non-user. (p. 83).</p> <p>4. Evidence — Best and Secondary Evidence — Loss of Original.</p> <p>If the original map made by the proprietor, showing building lots, streets and alleys, is proven to have become detached from-the record and lost, after it was signed and acknowledged by the proprietor and the trustees of the municipality, and properly recorded, thus proving both a dedication and an acceptance of such streets and alleys as were delineated on the map, secondary evidence may be resorted to to prove that a certain alley appeared thereon, (p. 83).</p> <p>5. Dedication — Evidence—Sufficiency.</p> <p>Certain facts recited in the opinion are held to be sufficient evidence that an unused alley was shown to be platted on the lost map. (p. 83).</p>

<p>1. Judgment — Conclusiveness—Persons Concludes,.</p> <p>In a suit between the debtor and one claiming an equity in a certain portion of a fund deposited by the debtor with a third person, a decree in favor of the claimant is conclusive against the debtor’s creditors who are claiming only liens upon such funá, and can not be collaterally assailed by tbem in any event, nor directly except for fraud and collusion, (p. 88).</p> <p>2. Same.</p> <p>If tbe stakeholder is a party to such suit, and bas been directed by a decree of tbe court to turn over to tbe claimant tbe portion of tbe fund found to be his, be can not refuse to do so on tbe ground that, after tbe suit was brought, be was garnished by creditors and debtors, (p. 89).</p> <p>3. Courts — Conflicting Jurisdiction — Courts of Same State.</p> <p>Tbe circuit court in which tbe claimant brought bis suit, to which tbe stakeholder is a party, can not be ousted of its jurisdiction by tbe subsequent order of another circuit court which acquired jurisdiction over the stakeholder in suits brought by the creditors against the debtor, (p. 89).</p>

<p>1. Waters and Water Courses — Natural Water Course — Diversion.</p> <p>A diversion of a natural watercourse, though, without actual damage to a lower riparian owner, is an infringement of a legal right and imports damage, (p. 94).</p> <p>2. Same — Riparian Rights — Nature and, Extent.</p> <p>The right of a riparian proprietor to have the water of the stream pass his land in its natural flow is a right annexed to the soil and exists as parcel of the land. (p. 94).</p> <p>3. Same.</p> <p>The right of a riparian owner to the natural flow of the stream is not dependent upon its value to him or the use which he makes of it; (p. 95).</p> <p>4. Same.</p> <p>The right of a lower riparian owner to the natural flow of the stream is subject only to a reasonable use of the water by the upper riparian owners as it runs through their lands before reaching his. (p. 95).</p> <p>5. Same.</p> <p>No legal right exists in a riparian owner to divert water of the stream for use beyond his riparian land, and any such diversion and use is an infringement of the rights of lower riparian proprietors who are thereby deprived of the flow, (p. 96).</p> <p>6. Same.</p> <p>If the diversion of water from riparian land for use elsewhere is not so inconsiderable, when the amount diverted is viewed relatively with the stream at its lowest stage as to be excluded under the maxim de minimis non curat lex, a lower riparian owner may have redress against the diversion, (p. 98).</p> <p>7. Same — Natural 'Water Course — Diversion.</p> <p>A stream begins at its source, when it comes to the surface, and a diversion of it at the spring head is just as much a diversion as if the water had been taken lower down. (p. 99).</p> <p>8. Same.</p> <p>Equity has jurisdiction to vindicate the right of a riparian owner to the natural flow of the stream by restraining an unlawful diversion of the water from its natural course, (p. 99).</p>

Bill in equity by Flora C. Pendry and another against Ma-nerva J. Cozort and others. From a decree for plaintiffs, defendants appeal.

Bill in equity by M. M. Brown and another, partners doing business as Brown & Hill, against Thomas McCabe. From a decree for plaintiffs, defendant appeals. .

<p>1. Demurrer to Declaration Overruled.</p> <p>The demurer to the declaration in this case was properly overruled, (p. 111).</p> <p>2. Pleaddstg — Amendment—I Declaration — Filling Blanks.</p> <p>A declaration may he amended, during the trial and before verdict, by filling in blanks, if substantial justice will thereby be promoted, (p. 111).</p> <p>3. Limitation oj? Actions — Computation of Period — Commencement of Action — Amendment of Pleadirig,</p> <p>When so amended the declaration, so far as the statute of limitations is concerned, will have the same effect as if it had been originally filed in the amended form at the commencement of the suit. (p. 112).</p> <p>4. Pleading — iReply—Necessity.</p> <p>A plaintiff need not reply specially to defendant’s special pleas, unless lie cannot deny all tlie averments of tlie plea and wishes to admit the truth of some of them and to avoid the effect of his admissions, (p. 112).</p> <p>5. TnrAii — Instructions—Applicability to Case — Ignoring Issues.</p> <p>Binding instructions which ignore the theories of 'defense, or narrow its scope covered hy the evidence, are bad. They must be broad enough to present all material phases of the issues to which they relate, and must submit conflicting theories, (p. 112).</p> <p>6. Same — Instructions—Damages—Ignoring Issues.</p> <p>Instructions, which ignore the essential elements of malice, and, if not in express words, by plain implication, tell the jury to find not only compensatory damages, but punitive damages, limited only by the amount sued for, are too broad in terms and give too wide a scope to the jury in assessing damages, (p. 113).</p> <p>7. Assault and Batteby — Civil Responsibility — Instructions.</p> <p>Instructions for defendant, intended to cover his theories of defense, and which his evidence tends to support, namely, that he was assaulted by plaintiff, in his own dwelling house or castle, and was not required to retreat, but had the right to stand and defend himself, and to repel his assailant, using such force as then appeared to him to be reasonably necessary to accomplish his purpose, if he then had the right to believe and did believe plaintiff intended to do him some bodily harm, were erroneously modified by interpolation of the word “great” before the words “bodily harm” employed therein, (p. 114).</p> <p>8. Same — Civil Responsibility — Justification—Self-Defense.</p> <p>One in his own house need not stand and taire without resisting with force even slight assaults of an intruder or trespasser, and until he believes or has reason to believe that he is about to sustain some great bodily harm. But he must not use force ■disproportioned to that used against him, and may not use a deadly weapon unless his own life is imperiled or it is necessary to ward off great bodily harm. (p. 114).</p> <p>9. Same — Civil Responsibility — Instructions.</p> <p>Instructions for defendant treating plaintiff as a trespasser and the first to make assault, and proposing to tell the jury, that if so assaulted in his own house defendant had the right to defend himself and to eject plaintiff, using such force as appeared to him at the time necessary -to accomplish his purpose, and that plaintiff could not recover, are bad, for not limiting defendant to such reasonable force as was proportioned to the injury 'attempted or inflicted upon him, and were properly refused. (p. 115).</p>

<p>1. Abatement and Revival — Death of, Party — Scire Facias to Revive Actions.</p> <p>Where the parties are the same and it does not appear that there was any other suit pending between them, and there is nothing in the record showing surprise or prejudice, the mis-description of the action in a writ of scire facias to revive the suit against an administrator, as one in debt instead of assump-sit, is immaterial, (p. 118).</p> <p>2. Same.</p> <p>Though three terms of court have passed without notice being taken on the record of a writ of scire facias to revive a cause, revival not being limited or confined to the particular term to which the writ is returnable, it may be entered at a subsequent term, and the court does not lose jurisdiction to proceed according to the writ. (p. 118).</p> <p>3. Same — Revival of Action — Setting Aside Judgment.</p> <p>If after waiting for more than a year after service of a writ of scire facias, plaintiff, in the absence of defendant, has the case revived, a jury immediately called, and judgment entered, the court on motion of the new party at the same term should set aside the verdict and judgment and continue the case. The right to such continuance given by section 4, chapter 127, Code 1906, is absolute, (p. 119).</p> <p>4. Executoes and Administrators — Actions—Judgment..</p> <p>A judgment against an administrator for a debt of his decedent should run de toms testatoris, not de Oonis propriis. (p. 119).</p>

<p>1. Ixsuea.nce — Actions on Policies — Pleading'.</p> <p>Special pleas or statements, tendered, in an action on an insurance policy, under sections 64 and 65 of chapter 125 of tlie Code (1900,) are not subject to rejection for insufficiency like ordinary pleas. They are in the nature of hills of particulars, and, if too general or otherwise insufficient, they constitute subject matter for demands for more particular statements; and, on the trial, insufficient defenses or replications set up by them, are excluded by instructions of the court, (p. 122).</p> <p>2. Same — Waiver of Right to Forfeiture — Evidence.</p> <p>Delay on the part of an insurance company in acknowledging the receipt of a proof of loss or rejecting it on account of defects therein is not evidence of denial or liability on the policy on grounds other than non-compliance with the proof of loss clause nor of waiver of a limitation of the policy in favor of the company, forbidding an action on the policy within 60 days after compliance with all of its conditions, (p. 123).</p>

Bill in equity by M. L. Benedum against the First Citizens’ Bank and others. From the decree, plaintiff and defendants John A. Howard, special receiver, and August Wendt appeal.

<p>Appeal from Circuit Court, Logan County.</p> <p>Bill by James A. 'White and others against A. B. White and others. Decree for plaintiffs, and defendants Hattie Glover and Addie Biffe appeal.</p>

<p>1. Caeriers — Duties to Passengers.</p> <p>Where an obstruction prevents further passage of a car, and another is, by the carrier, substituted therefor beyond the obstruction, the duty imposed by law upon a carrier for the safety of passengers is not thereby suspended, but continues unaffected while, without negligence on his part, and in exercise of ordinary care for his safety, a passenger is engaged in an immediate effort to reach the substituted car. (p. 150).</p> <p>2. Same — Injuries to Passengers — Obvious Danger.</p> <p>■ If a passenger, thus transferring to the second car, follows the course suggested or designated by employes in charge of the first, and, without fault on his part, is injured thereon, such injury is not chargeable to his negligence, unless the danger of passage thereover is obviously apparent, (p. 152).</p> <p>3. Same — Injuries to Passengers — Liability.</p> <p>If, while thus engaged, a passenger substantially follows the course so designated, and, without fault on his part, is injured, the carrier is liable in damages therefor, (p. 152).</p> <p>4. Same- — Injuries to Passengers — Contributory Negligence.</p> <p>Where the directions of an employe are within the scope of his authority, and obedience thereto will not expose a passenger to known or apparent danger which a prudent man would not incur, the passenger is justified in acting upon them, and is not. guilty of contributory negligence, although he may be injured in so doing, (p. 153).</p> <p>5. Same — Injuries to Passengers — Directions hy Employes — Authority.</p> <p>Directions by an employe of a carrier in charge of the car, ’ under the circumstances stated, are within the apparent scope of his authority, (p. 153).</p> <p>6. Same — Injuries to Passengers — Care Required.</p> <p>One in transit from one car to another, substituted therefor because of an obstruction, remains a passenger, and entitled to the protection that the highest degree of care on the part of the carrier can afford under the circumstances, (p. 151).</p> <p>7. Same — Injuries to Passengers — Negligence.</p> <p>Under the circumstances of this case, defendant was negligent in directing plaintiff, without light or guide, into a place the dangers of which were unknown to him and not obviously apparent to reasonable men under similar conditions, (p 153).</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Bill by William Alien and others against the South Penn Oil Company and others. Decree for plaintiffs, and defendants appeal.</p>

<p>Appeal from Circuit Court, Bandolph County.</p> <p>Bill in equity by James A. Bent against P. Clarence Barnes ,and another.. From a decree for defendants, plaintiff appeals.</p>

<p>Pleading — Actions on — ¡Declaration.</p> <p>It is not necessary in a declaration to state more than the substance and legal effect of the contract declared on; and unless the plaintiff renders his allegations of the contract descriptive of a written instrument-, he need not support his 'declaration literally, but only substantially, (p. 169).</p>

Action by William Stone against the First National Bank of Clendenin. Judgment for plaintiff before a justice, and verdict for plaintiff on appeal set aside, and new trial granted, and plaintiff brings error.

<p>Appeal from Circuit Court, Harrison County.</p> <p>•Bill by Charles S. Parr and others against the Blue Ridge Coal Company and others. Decree for plaintiffs, and S. R. ■Griffin and Lillie M. Griffin appeal.</p>

Action by the State, for use, etc., against the Citizens’ Trust & Guaranty Company. ' Juclgment for plaintiff, and defendant brings error.

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Frances G. Beilly against William T. Nicoll and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. BeokebS' — Agency Coupler with Interest — Revocation.</p> <p>An agency, uncoupled with an interest, not for a definite time, may he revoked hy the principal at will, without liability for damages. Commission or reward to be earned by an agent in executing the agency does not alone make the agency one coupled with an interest, (p. 198).</p> <p>2. Same — Determination of Agency.</p> <p>An agent to sell lands at a price net to the owner, under a contract of agency specifying no time for performance, is entitled only to a fair and reasonable opportunity to effect the sale thereof. What is a fair and reasonable opportunity is to be determined from the facts and circumstances of each case, (p. .198).</p>

<p>Mortgages — Dees, of Trust — Compensation of Trustee.</p> <p>,If a trustee in a deed of trust to secure a debt, fixing bis compensation for executing tbe trust at five per cent, commissions, performs no services as sucb trustee until tbe trust' deed debtor dies, and a suit is brought to sell bis land and settle up his estate, and tbe trustee is appointed, by tbe court, a commissioner to sell, and as sucb makes sale of tbe land embraced in the deed of trust he is only entitled to tbe compensation allowed by section 8, chapter 132, Code (1906).</p>

Suit by Hattie A. Kunst and others against Nancy A. Mabie and husband to enjoin the cutting of timber. From decree for defendants, plaintiffs appeal.

Suit by Dorcas A. Lynch against George Brookover and others for partition and to remove clouds on plaintiff’s title. From b decree dismissing plaintiff’s bill, she appeals.

Bill by J. W. Smiley and others against the New River Company and others. Decree for plaintiffs, and certain defendants appeal.

<p>Appeal from Circuit Court, Harrison County.</p> <p>Action by Luther C. Ash and others against Y. S. Lynch and others. From judgment for plaintiffs, defendants Lynch and Broadwater appeal.</p>

<p>1. Criminal Law — Entry of Nolle Prosequi — Sufficiency.</p> <p>The entry of a nolle prosequA, by the prosecuting attorney, • though the attorney general joins therein, without the consent of the court, is ineffective to discontinue a prosecution upon an indictment by a grand jury. (p. 247).</p> <p>2. Same — Nolle Prosequi — Consent of Court.</p> <p>Though the rule at common law is otherwise, the practice long followed in Virginia, before the separation, and since then in trial courts of this state has become crystalia'ed into our law, and a riolle prosequi entered without the consent of the court will be unavailing to discharge the accused from prosecution. (p. 248).</p> <p>3. Same — Jurisdiction—Discharge of Prisoner.</p> <p>A trial court by discharging a prisoner from the custody of the sheriff, on his surrender by his bail in open court, does not * thereby lose jurisdiction of the indictment or thereafter to retake the accused on a new capias and put him upon his trial ■ upon the indictment, (p. 251).</p> <p>■4. Same — Adjourned Term — "New Term” — iDiscJiarge—Want o/ Prosecution.</p> <p>An adjourned, term of a circuit court, or of the criminal court of Harrison County, had pursuant to section 4, chapter 112, Code 19OG, is not a new term, but a continuance of the term adjourned; and one then under indictment and who would at the end of that term if not tried be entitled to his discharge, because three terms had elapsed after indictment found, without trial, is not entitled to such discharge, if brought to trial at such adjourned term. (p. 252).</p>

<p>States — • Undrawn Appropriation.</p> <p>A legislative appropriation of public funds to a private person, who makes requisition therefor upon the auditor before the expiration of three years next after the passage of the act making it, does not expire and become an undrawn appropriation in contemplation of section 8, chapter 17, Code 1906. pending litigation to test the constitutionality of the appropriation, (p. 269).</p>

<p>Continuaítce — Grounds—Specific Performance.</p> <p>The bill, alleging inter alia, purchase of real estate under a verbal contract with defendant, possession and improvements by virtue thereof, seeks specific performance of the contract averred. -Defendant’s demurrer thereto being overruled, on the last day ■ of the term next ensuing the institution of the suit, he by answer, then filed, denied all material averments of the bill, and, for good cause shown by affidavit, also filed, moved for a continuance, which being denied, the court thereupon, and on depositions previously taken and filed by plaintiff, granted the relief sought. The action of the court thereon, under.the circumstances, held erroneous, (pp. 261-263).</p>

<p>Error to Circuit Court, Ohio- County.</p> <p>Action by Lee S. Pauli against tbe Pittsburgh, Wheeling & Kentucky Kailroad Company. From a judgment for defendant plaintiff brings error.</p>

<p>Error to Circuit Court, Kandolph County.</p> <p>Action by Levi J. Findley, Adm’r., against the Coal & Coke Eailway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to' Circuit Court, Randolph County.</p> <p>Action by Andrew Ferguson against the G-lady Fork Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by John W. Perry, administrator, etc., against the Ohio Valley Electric Eailway Company. From judgment for plaintiff, defendant brings error. ■</p>

<p>1. False Imprisonment — Warrant Charging No Offense.</p> <p>Where the act charged in a warrant issued by a justice amounts to no criminal offense, arrest and imprisonment under such warrant is illegal, and those who actively direct and cause the same are liable in the action for false imprisonment, (p. 289).</p> <p>2. Same — Illegal Arrest.</p> <p>Illegal arrest and imprisonment, regardless of malice or probable .cause, will sustain the action for false imprisonment, (p. 291).</p> <p>3. Same — Evidence—iRecord of Arrest.</p> <p>The record of the case in which the arrest and imprisonment occurred, on appeal from the justice, showing the procedure therein and the dismissal thereof, is admissible as evidence tending to prove illegality of the arrest and imprisonment, (p. 291).</p>

Action by the State, for use of the County Court of Mason County, against J. 0. McDermitt, Sheriff, and others. Judgment for defendants, and plaintiff brings error.

<p>1. Municipal Coepoeations — Municipal Powers — Exercise.</p> <p>The exercise of municipal powers, by proper construction, is confined to the territorial limits of the municipality, and are, (1) such as are granted by express words; (2) those fairly implied or incident to those expressly granted; and (3) those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable, (p. 297).</p> <p>2. Same — Contracts—Bridge in Another State.</p> <p>A town or city of this state, within these rules, has no power or authority to enter into a contract with the county court of the county in which it is located to contribute to the expense of building a bridge, without its corporate limits, and which is located wholly within another state, (p. 298).</p> <p>3. Same — Void Contracts — Liability of City.</p> <p>Nor is such a contract or promise of a town or city to contribute to the expenses of building such bridge binding on principles of the common law or on the theory of its obligation to do justice. Receiving no money or property or title thereto from the county which in justice it should restore, and its contract being absolutely void,. and not capable under any power of being ratified, it cannot be rendered liable on its void promise, (p. 299).</p>

Petition by Albert Polley for the privilege of establishing a ferry, and Robert M. Gilleland intervenes as contestant. Judgment for petitioner, and contestant brings error.

<p>Error to Circuit Court, Ohio County.</p> <p>Action by Henry Jaeger against the City Eailway Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Baleigb County.</p> <p>Bill by Edmond Sehon against George C. Bloomer and others. Decree for defendants, and plaintiff appeals.</p>

<p>1. Boundaries — Establishment—Judgment—Disclaimer.</p> <p>Where in ejectment the issue is the location of the true division line between the parties, and defendant enters a disclaimer of all beyond a fixed line designated on the map of the official surveyor, upon a verdict simply for defendant the court may properly enter judgment establishing as the true division the line beyond which defendant disclaimed, (p. 322).</p> <p>2. Same — Establishment—Following Courses and Distances.</p> <p>Though in ejectment parol evidence is sométimes admissible to prove marked trees which are not in the courses or termini of lines to be the true lines intended, yet where the deed plainly calls for the lines by courses and distances, and distinctly for stakes, not marked trees, as the termini thereof, and* there is no such approximation thereto in the courses or the lengths of the lines sought to be established by marked trees as to warrant any presumption that they are boundaries of the land, the jury may properly be instructed to disregard the marked trees and to follow the courses and distances called for in the deed, (p. 323).</p>

<p>1. Life Estates — Action "by Life Tenant.</p> <p>A life tenant has such interest as entitles him to sue for the forfeiture imposed on an adjoining owner or tenant by sectibn 7,' chapter 79, Code 1906, for mining for coal within five feet from the division lines, (p. 327).</p> <p>2. Same — Action by Life Tenant — Joinder of Remaindermen.</p> <p>And such life tenant may join with the reversioners or re-maindermen in such action, and a declaration so joining them is not bad on demurrer for misjoinder of parties, (p. 327).</p>

<p>Error to Circuit Court, Lewis County.</p> <p>Action by the Eoane Lumber Company against H. E. Lovett, administrator. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Mercer County.</p> <p>Action by Ella Bowyer against the Continental Casualty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Deeds — Construction—Description.</p> <p>Of two descriptions of land in a deed, one of which, is capable of complete and exact application to a subject matter and the other not, the former is accepted as correct and the latter rejected as erroneous, unless something in the deed, read in the light of the situation and circumstances of the parties, discloses intent inconsistent with such construction, (p. 344).</p> <p>2. REFORMATION of Instruments' — Deeds of Married Women.</p> <p>In the absence of statutory enlargement of the common law powers of married women, respecting dispositions of their real estate, equity will not reform the deed of a married woman so as to make it include land it should have embraced, but, by reason of mistake, did not. (p. 346).</p> <p>3. Husband and Wife — Reformation of Instruments — Deeds by Married Women — Validity.</p> <p>Notwithstanding the inarried women statutes of this state, the contractual powers of married women respecting conveyance of their real estate are limited in the exercise thereof to a particular and exclusive mode and quoad such estate they have not the contractual powers of femes sole, wherefore equity will not correct a mistake in the deed of a husband and wife, conveying only land of the former, so as to make it include lands of the latter, in the absence of a written contract for the sale of her land, executed in the manner prescribed by the statute, (p. 346).</p>

<p>Appeal from Circuit Court, Wood County.</p> <p>Suit by Emma F. Reynolds against William 0. Reynolds. From a decree for plaintiff, defendant appeals.</p>

<p>1. Contract — Intent—Meaning and Purport — Parties.</p> <p>In construing the provisions of a contract in an effort to ascertain the true intent, meaning and purport thereof, courts ■will and must always examine the contract in its entirety, or such parts thereof as may disclose or tend to disclose the object and purpose sought to he attained by the parties thereto, (p. 355).</p> <p>2. Same — Intent Definitely Expressed.</p> <p>Where a particular purpose is sought by a contract, and the-language pertaining thereto is clear and certain, no general terms used therein will extend the meaning thereof beyond, the intent and purpose so definitely expressed, (p. 355).</p> <p>3. Same — Intent—Parties.</p> <p>The court should regard the obvious intent and design of the parties, and the object to be attained by them, as well as. the language of the instrument itself, (p. 356).</p>

<p>1. Master and SeRvant — Duty to Instruct and Warn — Actionable Negligence.</p> <p>It is actionable negligence to employ a minor and place him to work at a dangerous employment, without instructing him as to the dangers and how to avoid them. (p. 361).</p> <p>2. Same — Minors—Appreciation, of Danger — Presumption.</p> <p>A minor, over 14 years of age, is presumed to have sufficient capacity to appreciate the ordinary dangers attending his employment. But the presumption may he rebutted by proof of want of capacity, (p. 362).</p> <p>3. Evidence — Opinion Evidence — Injury to Minor.</p> <p>Opinions of non-expert witnesses, based upon frequent observations of, and conversations with, a person, extending over a period of several months, are admissible to prove want of capacity, (p. 362).</p> <p>t. Master and Servant — Mine Boss — Agent of Master.</p> <p>A mine boss, authorised by the mine operatcr to employ men and assign them to working places, is, pro tanto, the agent of such operator, (p. 363).</p> <p>5. Same — Injury to Minor — Actionable Negligence.</p> <p>A coal mining company, by permitting its mining boss to employ men repeatedly and assign them to places of work, thereby makes him’ its agent for that purpose; and if such agent employs an infant, who does not appreciate the dangers of his employment, and fails to instruct him concerning the dangers and how to avoid them, it is negligence for which the company is liable, (p. 363).</p> <p>6. Same — Minor Employe — Duty of Master — Actionable 'Negligence.</p> <p>To see that an infant servant has sufficient capacity to understand the dangers of his employment, and to properly instruct him in regard thereto, is the master’s non-assignable duty, the failure to perform which constitutes negligence for which the master is liable, (p. 364).</p>

<p>Appeal from Circuit Court, Pocahontas County.</p> <p>Bill in equity by A. M. McLaughlin against Lh W. Sayers to . enforce a vendor’s lien. From a decree for plaintiff, defendant appeals.</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by John Boberts against the Baltimore & Ohio Bailroad Company, á corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Harriett A. Boggess against Fred W. Bartlett. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Deeds — Execution—Undue Influence.</p> <p>When a deed is made by a man eighty-eight years of age, long suffering from painful disease, feeble in body and mind from age and disease, which deed conveys all his lands, .of great value, to two sons in whom he reposed confidence, who transacted his business, and resided close to him, the deed drawn by one of the sons at his own home, not in the presence of the father, executed in the presence of the two sons, in the absence of four daughters living atr,a distance, the deed not read or explained to the father, the sons having had a private interview the day before, which deed conveys to the sons all the father’s land, of great value, whereas the daughters are to be paid money far less than the value of the land. He had often expressed an intent to bestow his land equally upon all his children. ' At the date of the deed one of^the sons held a deed for all his father’s land. The father within a few months before and after the deed to the two sons made wills and deeds inconsistent with the deeds to the two sons, as if he still owned the land. These circumstances make a . strong prima facie case, of undue influence, and call for clear evidence of fair dealing on the part of the sons. (p. 385).</p> <p>2. Undue Influence — Procurement of Deed.</p> <p>The facts and circumstances of this case establish undue influence upon the grantor in the procurement of a deed conveying land. (p. 385).</p>

<p>Error to Circuit Court, Logan County.</p> <p>Action by William Gartin, administrator, against the Draper Coal & Coke Company. From an order setting aside a verdict for plaintiff, be brings error.</p>

Bill in equity by Mary J. Hudkins and another against E. H. Crim and others for an injunction and to compel the conveyance of a tract of land. From a decree rejecting plaintiffs’ claim of equitable title, adjudicating the title in defendants, dissolving the injunction, and awarding a writ of possession, plaintiffs appeal.

<p>Lost Instruments — Jurisdiction—Action at Law.</p> <p>Unless, at the time of trial, it is destroyed or barred, by limitation, a payee of a lost negotiable promissory note can not maintain an action at law thereon against the makers thereof; a court of law being without authority to require indemnity against Recovery thereon by a bona fide endorsee.</p>

<p>Error to Circuit Court, Lewis County.</p> <p>Action by W. C. Danser against C. P. Dorr. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Bill in equity by Joseph W. Stevens against L. E. Johnson and others. From decree for defendants, plaintiff appeals.</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Rebecca B. Oliker against the Williamsburgh City Fire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Highways — Obstruction—Criminal Prosecution — Indictment.</p> <p>An indictment, under section 1515a80, Code Suppl. 1909, for obstructing a public road, wbicb charges that defendant “did knowingly, wilfully and unlawfully obstruct a certain road and pass way, to-wit, the road and pass way leading from the land of S. A. Parker, in .Jumping Branch District, adjoining the said W. J. Massie, over the lands of said Massie, where he now resides, in said district, to the public county road, leading from Jumping Branch to Mat Top, by then and there unlawfully locking a gate over and across said road and pass way and continuing the same from said time hitherto, in consequence of said unlawfully locking of said gate by -the defendant, W. J. Massie, said road and pass way was rendered impassable for all the time aforesaid, said road and pass way being lawfully owned by and used by said A. S. Parker, at the time aforesaid, against the peace and dignity of the State,” omitting the words, “and to which road the public has the right of or is not denied the use,” employed in section 1515al, defining a public road, is bad on demurrer, the road so described being a private road not covered by the statute, (p. 445).</p> <p>2. Indictment and Information — Language of Statute — Descriptive ~Words — Surplusage.</p> <p>Though as a general rule an indictment for a statutory offense is good if the offense be charged in the language of the statute, and the indictment in this case would have been good, if it had been confined to the language of said section 1515a80, nevertheless, as the prosecutor undertook to include therein descriptive matter showing the road alleged to have been obstructed to be a private and not a public road, thereby effectively negativing the offense meant to be covered by the statute, and showing the prosecution not maintainable, the descriptive language cannot be rejected as surplusage on demurrer, and the indictment should be quashed, (p. 446).</p>

<p>1. Pabtition — Partition Deed — Predicate.</p> <p>As tlie basis for tbe introduction of a deed made in execution of a decree of partition as evidence of title, it suffices to show, by tbe orders made and entered in tbe cause, that tbe court rendering tbe decree and authorizing tbe deed bad before it tbe subject matter of the suit and tbe parties, (p. 455).</p> <p>2. Judgment — Recitals—Presumptions of Regularity.</p> <p>Recitals by the orders, judgments and decrees of courts of general jurisdiction that they have jurisdiction of tbe parties and tbe subject matter are sustained by presumptions in favor of tbe regularity of their proceedings, (p. 456).</p> <p>3. Partition — Commissioner’s Deed — Sufficiency.</p> <p>A deed of parties to a partition suit, made for and on their behalf by a commissioner appointed for tbe purpose, need not show formally tbe signatures of tbe grantors by tbe commissioner, if tbe deed recites tbey acted in making tbe deed by tbe commissioner under tbe decree authorizing him to execute tbe same, and that, acting as aforesaid, tbey bad set their hands and seals to tbe instrument, (p. 456).</p> <p>4. Principal and Agent — Execution of IDeed — Power of Attorney —Signatures.</p> <p>An agent executing a deed under a power of attorney, and affixing bis own signature as agent and attorney in fact for bis principals, together with their seals, need not affix the signatures of bis principals, (p-. 457).</p> <p>5. Same — Execution of Deed — Power of Attorney — Recitals.</p> <p>Such agent being a co-heir with bis principals, may execute tbe deed for and on behalf of himself and bis principals without designating bis principals by name. A recital in tbe deed that be conveys for and on behalf of himself and tbe “other heirs” as their agent and attorney- in fact suffices, (p. 458).</p> <p>6. Deeds- — Description—Sufficiency.</p> <p>A deed reciting tbe subject matter of a conveyance as two lots assigned out of a larger survey in a designated suit for partition thereof, subject to numerous undefined prior conveyances of tbe same, giving tbe numbers of the lots, is not void for uncertainty, (p. 459).</p> <p>7. Ejectment — Evidence—Deed.</p> <p>Such a deed is admissible in evidence in an action of ejectment, without prior proof of tbe location of tbe exceptions and reservations, (p. 459).</p> <p>8. *Wnxs- — Admission to Record — Proof—Subscribing Witness.</p> <p>A will may be admitted to record upon proof of the due'execution thereof by one of tbe attesting witnesses and proof of tbe signature and band writing of tbe other, the latter being absent from the state, (p. 460).</p> <p>9. Same — Proof—Deposition of Subscribing Witness.</p> <p>Tbe statute authorizing tbe taking and use of a deposition of an absent witness in such case, is permissive, cumulative, and not exclusive, (p. 460).</p> <p>10.Partition — Commissioner's Deed — Validity—Jurisdiction.</p> <p>A deed by a special commissioner for land sold under a .decree in a cause instituted by a part owner of tbe land, seeking a sale thereof instead of partition as against infants, having interests therein, is not void for want of jurisdiction, because tbe bill prays a sale of tbe land, after alleging insus-ceptibility of division thereof in kind. (p. 460).</p> <p>Bvidestce — Expert Opinion — Admissibility—Boundaries—Ejectment.</p> <p>The opinion of a surveyor, who has had extensive experience with the lines, corners and boundaries of an ancient patent, as to the identity of one of its corners, which he has examined and tested, is admissible in evidence, (p. 4C1).</p> <p>Boundaries — Establishment—Evidence—Instructions.</p> <p>A line of a survey described in a patent as commencing at one natural object, such as a tree, and running without further locative calls to another object, such as a tree, is governed in its location by the monuments called for, if they' can be found, although an uncalled for marked line different therefrom is disclosed by extraneous evidence; and, if there is sufficient evidence of the identity of the monuments called for as the terinini of the line, the trial court may properly submit to the jury the location of the line by the monuments called for or by the marked line, according to their judgment as to the weight of the evidence tending to prove the respective locations claimed, (p. 463).</p> <p>Same — Descriptions—Construction.</p> <p>A line designated in a deed or other, given muniment of title by its course and distance only must yield to an inconsistent marked line, run as the line intended by the parties, but if the deed calls for a line by monuments as well as by course and distance, such marked line not referred to in the deed must be ignored, if the monuments called for are ascertainable. (p. 469).</p> <p>Deeds — Construction—Inconsistent Description.</p> <p>If a deed oontain a general description of property, conforming to the manifest intention of the parties, as shown by the situation and circumstances surrounding them and the purpose they had in view, and also another description, clearly inconsistent with such circumstances and purpose, such latter description must be rejected as false and as having been inserted in the deed by accident or mistake, (p. 469).</p> <p>Same — Construction—Description—Presumption.</p> <p>The grantor in a deed, apparently intended for conveyance of all of his land or all of a tract, is presumed not to have intended to retain a narrow strip thereof, and upon this presumption, calls in a deed may be disregarded as being erroneous, if the deed, viewed in the light of extraneous evidence,is ambiguous in its terms, (p. 472).</p> <p>Ejectment — Instruction—Evidence.</p> <p>If, in an action of ejectment, the title papers of the defendant, under findings of fact justified by the evidence, trace back to the same title under which the plaintiff claims, the court may properly direct an inquiry in its instructions as to whether the claims of title originated in a common source, (p. 473).</p> <p>17. Same — Proof of Title — Estoppel.</p> <p>A well recognized and established exception to the rule requiring the plaintiff in ejectment to trace his title from the state, is the estoppel in law arising out of a common source of title. In such case, the plaintiff need not trace his title to the state, (p. 474).</p> <p>18. Same — Location of Exceptions and Reservations — Burden of Proof — Prima Facie Case.</p> <p>A claimant of land, under a deed falling under the rule of inclusive surveys as to the burden of proof, may establish a prima facie case of location of the exceptions and reservations outside of the land in controversy, by proving in a general way that none of the exceptions are within the bounds of the land in controversy, and, in the absence of evidence in rebuttal, he need not show the locations of the exceptions by evidence of the location of the lines thereof, (p. 474).</p>

<p>Appeal from Circuit Court, Nicholas County.</p> <p>Action by B. T. Champ against the County Court of Nicholas County and others. From decree for plaintiff, defendant named appeals.</p>

<p>Mortgages — Trustee Sale — Action to Set Aside — Sufficiency of Evidence.</p> <p>Reed, Bachman, Reno, Swope and Reeves, being joint purchasers and grantees — except Swope, who, though not named as grantee, had an equitable hut, not legal title to one-fifth interest therein — conveyed the lands in trust to Hall to . secure part of the purchase money therefor. Reed and Bachman, having by grant from Reeves acquired his interest in the lands, also conveyed the same in trust to Hall to secure the purchase money therefor. Bachman thereafter by grant from Swope acquired his equitable interest. Reno died owning his fifth interest. Under the authority of both trust deeds and “as required by law,” Hall sold the three-fifths interest of Reed and Bachman to Doutt, who had no interest therein except as beneficiary under the first trust. Hall sold to Cain and Doutt the fifth conveyed to Reed and Bachman by Reeves, and conveyed to the purchasers the interests so sold by him under the trusts. Cain and Doutt thereafter conveyed to Bachman the interests so conveyed to them. Reed Knew of the sales and deeds thereunder to Bachman nineteen years prior to suit assailing the same as fraudulent. Held:</p> <p>I. That the fraud charged is not sustained by proof.</p> <p>II. That, in absence of fraud, Bachman acquired good title.</p>

<p>1. Banks and Banking- — Insolvency■—Assets in Hands of Trustee.</p> <p>The liability of a bank’s officers for gross neglect of duty and wilful mismanagement of its affairs, and the double liability of stockholders, are both assets in the hands of the trustee of an insolvent hank, to be administered for the benefit of its creditors. (p. 493).</p> <p>2. Same — Insolvency—Administration of Assets.</p> <p>It is proper to administer both of said assets in a suit brought by the trustee against the bank, its stockholders and creditors, (p. 494).</p> <p>3. Same — Insolvency-—Enforcement of Liability of Officers.</p> <p>If the trustee, by his bill,' does not seek to enforce the officers’ liability, the defendant stockholders may do so by answers in the nature of cross-bills, (p. 494).</p> <p>4. Same- — Insolvency—Liability of Officers and Stockholders.</p> <p>In such suit to which all the parties interested are parties, in order that the court may do complete equity, the extent of the officers liability should be ascertained before assessing any portion of the double liability upon the stockholders, (p. 494).</p>

<p>Dedication- — Evidence—Sufficiency.</p> <p>Evidence lield insufficient to establish dedication of land to public use.</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Ona Merrill was convicted of voluntary manslaughter, and brings error.</p>

<p>1. Animals — Running at Large — ■Common Law — XJnruly and Dangerous.</p> <p>The common law, inhibiting the running at large of domestic animals, is not in force in this state, except as to such of them as are unruly and dangerous, (p. 510).</p> <p>2. Same.</p> <p>Unruly and dangerous animals within the meaning of the law are such as are likely to injure other domestic animals and persons, not such as merely endanger real property by trespassing therein, (p. 510). -</p> <p>3. Same — Trespassing—Right to Distrain.</p> <p>No statute of general operation throughout this state confers right upon a land owner to sieze and hold domestic animals found trespassng on his land as a remedy for enforcement of payment of the damages done by them, unless they are estrays or the land is enclosed by a lawful fence and the animals have trespassed on the same a third time after notice in writing to the owner of the two previous trespasses, (p. 510),</p> <p>4. Same.</p> <p>To avail himself of the right of acquisition of title to trespassing animals, given by section 3 of chapter 60 of the Code, the claimant must clearly show strict and full compliance with its provisions and maintenance of a, lawful fence, (p. 510).</p> <p>5. Same — Bet Off and Counter-claim — Conversion—Unliquidated Damages.</p> <p>In an action for the value of animals taken and sold as having been forfeited to the owner of lawfully enclosed premises, by virtue of proceedings under section 3 of chapter 60 of the Code, the damages done to, the property by the animals can neither be recouped nor set-off against their value, (p. 511).</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Action by Nathan H. Means against Joseph Barnes and others. Judgment for plaintiff, and defendant G. TT. A. Ivunst, administrator, brings error.</p>

Action by J. S. Lynch and others against Will Merrill amj others. Judgment for plaintiffs, and defendant Little Ka-nawha Log & Tie Company brings error.

<p>Constitutional Law — Judiciary—Legislative Powers.</p> <p>Sections 2 and 9, chapter 47, Code (1906), do not contravene article V of the Constitution because they invest the circuit court with a discretion to determine the exact extent of territory to he included in a municipality seeking to he incorporated, and with discretion to direct the clerk to issue a certificate of incorporation therefor. Morris v. Taylor, 70 W. Va. 618.</p>

<p>1. Indictment and Information — Bight to Quash.</p> <p>An indictment can not loe quashed because it was found upon illegal evidence, (p. 521).</p> <p>2. Prohibition — Grounds—Plea to Indictment.</p> <p>Prohibition lies to prevent a trial court from entertaining a plea to an indictment, challenging the legality or sufficiency of the evidence on which it was found, (p. 523).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by the Miller Supply Company against the State Board of Control. Judgment for defendant, and plaintiff brings error.</p>

<p>Petition of Tena McVey and George Woof ter for writ of prohibition against Ephraim Butcher and others.</p>

Action by the State against Isadore- Tinovits, W. W. Bran-non, and others. Judgment for plaintiff, and, defendant Bran-non brings error.

<p>1. Biixs and Notes — Certificate of Deposit — Negotiability—“Negotiable.”</p> <p>A certificate of deposit issued toy a bank for a certain sum of money, not subject to check and payable to the order of the depositor in current funds, on the return of the certificate properly endorsed, is negotiable within the meaning of section 7 of chapter 99 of the Code. (p. 535).</p> <p>2. Judgment — Conclusiveness—Estoppel—Different Causes of Action.</p> <p>If the cause of action in. a second suit differs from that ■of a former one in which the parties participated, though growing out of the same transaction or relating to the same property or fund, the record in-such former suit does not estop the parties as to everything that could have been litigated therein, but only as to such matters as affirmatively appear to have been decided in it. (p. 537). r</p> <p>3. Same — Res Judicata — Issues—Determination.</p> <p>The record of a chancery cause in which a co-partner charged a bank with a fund deposited with it as money belonging to the firm and successfully resisted the bank’s defense of authorized payment of the funds to a member of the firm, by the issuance to him, in exchange, for the firm’s check drawn by him, of a certificate of deposit payable to his order, showing no actual adjudication against the en-dorsee of the certificate, who was made a party to the cause, does not sustain a plea of former adjudication in an action of debt brought against the bank on the certificate of deposit by the endorsee thereof, (p. 537).</p>

<p>Petition by C. P. Peyton for writ of mandamus against J. A. Holley and others.</p>

<p>Appeal from Circuit Court, Randolph County..</p> <p>Action by Lucy B. Crawford and others against Albert S. Bosworth. From a decree for defendant, plaintiffs appeal.</p>

<p>Error to the Circuit Court, Logan' County.</p> <p>Action by J. E. Chilton against Anderson White and others. ' Judgment for defendants, and plaintiff brings error.</p>

<p>Railkoads — Fire Set try Locomotives — Evidence.</p> <p>The origin of a fire hy sparks from a locomotive may be established by circumstantial evidence which justifies a reasonable and well grounded inference that the fire was of such origin, and rebuts the probability of the fire having originated from any other source.</p>

Action by the Carnegie Natural Gas Company against A. G. Swiger, the Swiger Coal Company, and others. From a judgment for plaintiff, the defendants named bring error.

<p>1. Motes ‘ and Minerals — Contracts—Customs and Usages — Oil and Gas Lease — Construction—Domestic Purposes — Domestic.</p> <p>A clause in a, lease for oil and gas purposes, securing to tlie lessor “free gas for domestic purposes,” read in tlie light of an established usage or custom, known by the parties to the contract, is construed as conferring upon tile lessor right to have gas for heat and" light in his dwelling house and for the maintenance of one light at such a point as he may designate within the curtilage, (p. 575).</p> <p>2. Same — Oil arid, Gas Lease — Construction.</p> <p>Though at the date of the lease it was customary and usual for lessors to maintain, under such clause, what is known as an open, storm or flamheau light in their yards, the clause is construed, in view of the wastefulness and extravagance in the use of gas by such means, as conferring upon the lessor, right to maintain only an enclosed or economical burner for light in the yard. (p. 575).</p> <p>3. Specific Pebfobmance — Covenant of Oil and Gas Leaser-Remedy for Breach.</p> <p>The legal remedy for violation of such a covenant being inadequate, equity will enforce specific performance thereof by appropriate remedies, (p. 575).</p>

<p>Appeal from Circuit Court, Randolph County.</p> <p>Suit by Howard Rennix against Shannon Hardman and others. Judgment for plaintiff, and defendant N. 6. Eeim apneals.</p>

<p>1. Mechanics’ Lien — Notice to Owner — Payment to Principal Contractor.</p> <p>The present mechanics’ lien law, Code 1906, chapter 75, gives right of direct lien to one performing labor or furnishing material under a contract with the principal contractor or his sub-contractor, and no notice to the owner in advance of the performance of labor or furnishing of material is necessary to a protection of the right as against payments by the owner to the principal contractor, (p. 587).</p> <p>2. Same — Payment to Principal Contractor — Defects.</p> <p>Under the mechanics’ lien law, payment by the owner to the-principal contractor of a part or all of the contract price constitutes no defense against a lien the right to which exists. or is incipient by the performance of labor or the furnishing of material prior to the payment, (p. 587).</p> <p>3. Same — Principal Contractor — Effect—Recorded Contracts.</p> <p>By recording the contract with the principal contractor, pursuant to Code 1906, chapter 75, section 5, the owner may limit his liabilities under the contract so that the amounts to be paid by him shall not exceed in the aggregate the contract price, and such amounts may include any payment, pursuant to the contract, made by the owner to the contractor when no incipient or perfected right to lien exists for labor performed or material furnished before the payment, (p. 587).</p> <p>4. Same — Recording Contract — Notice to Laborers and Material-men.</p> <p>When the contract between the owner and the contractor is recorded, one proposing to perform labor or to furnish material under a contract with the principal contractor or his sub-contractor, must take notice of the times of payment of the contract price provided for therein; and any payment made according to the terms of the recorded contract before the beginning of the performance of labor or the furnishing of material will limit a lien for such labor or material to the amount of the contract price unpaid, (p. 589).</p> <p>5. Question not Decided.</p> <p>Quaere: May the building contract be recorded for the limiting of the owner’s liability against liens without its being acknowledged or- proved? (p. 591).</p> <p>8. Mechanics' Liens — Persons Entitled — Sub-Contractors.</p> <p>A sub-contractor, in the sense of one to whom a specific portion of the work is sublet by the principal contractor, may assert a lien under Oode 1906, ch. 75, sec. 3. (p. 591).</p> <p>'7. Judgment — Res Judicata — Pleadings.</p> <p>Res judicata must be pleaded or shown by the record. It can not be availed of merely by citation to a published opinion, (p. 593).</p>

<p>1. Municipal Corporations — Streets and Alleys — Restraining Obstruction.</p> <p>When it is proposed to occupy permanently a public street or alley for private use, an abutter who would be injured by such occupancy may prevent the same hy injunction, (p. 602).</p> <p>2. Same — Public Alleys — Vacation.</p> <p>The -power of a municipal corporation to vacate a public alley can be exercised in the public interest only, and not for the sole purpose of henefltting a private person, (p. 602).</p> <p>3. Same — Alleys—Nature of as Public Highway:</p> <p>Public alleys are highways, and, in general, are governed by the legal rules applicabte to streets., (p. 602).</p>

<p>Error to Circuit Court, Tucker County.</p> <p>Nick Pishner was convicted of crime, and brings error.</p>

<p>Execütobs and Administbatoes — Widows’ Bights Before Dower Assigned — “Curtilage.”</p> <p>A small store room, located substantially within the yard and garden enclosing the mansion house, its front and side constituting a part of such enclosure, once occupied by the husband with a small stock of merchandise, but for' a year prior to and at the time of his death used and occupied by him as a storage room for lumber, and domestic supplies, and all constituting a part of his home farm, is a part of the curtilage, of which by section 8, chapter 65, Code 1906, the widow, until dower assigned, is entitled to the undisturbed possession, as against an heir entering without her consent and against her protest, and of which she is entitled in unlawful detainer to recover the-possession, (p. 607).</p>

<p>Error to Circuit Court, Braxton County.</p> <p>Action by Charles Lanham against Eva I. Meadows. Judgment for defenlant, and plaintiff brings error.</p>

<p>1. Mechanics’ Liens — Improvement of Wife’s Land — Agency of Husband.</p> <p>If a husband contracts, in bis own name, witb tbe knowledge of bis wife, for tbe erection of a building on ber land, and tbe work is carried on also witb ber knowledge and consent, sbe will be presumed to have constituted ber bus-band ber agent, and her property is liable to a mechanic's lien for such improvement. Op. 616).</p> <p>2. Same.</p> <p>Proof that the wife was frequently present, in company witb ber husband, while tbe building was being erected, and ■on one occasion gave directions, or made suggestions, as to bow a certain part of tbe building should be constructed, is sufficient evidence that sbe consented to have tbe building erected, (p. 61G).</p>

<p>Appeal from Circuit Court, Berkeley County.</p> <p>Bill by J. M. Lamon against Robert Gold and others. Decree for plaintiff, and Maria E. Janney appeals.</p>

<p>1. Equity — Jurisdiction.</p> <p>A court of equity will not take cognizance of a .fraud, working injury as a mere tort. (p. 628).</p> <p>2. Contracts — Breach of Contract — Remedy in Equity.</p> <p>Por breaches of contract, cognizable at law, there is no jurisdiction in equity to give redress by way of compensation or damages, if the bill has no object or purpose other than’ recovery of such compensation or damages, (p. 628).</p> <p>3. Equity — Jurisdiction—Actions Ex Delicto.</p> <p>Chapter 106 of the Code, authorizing attachments ini equity, confers upon courts of equity no jurisdiction as to. causes of action ex delicto, (p. 629).</p> <p>4. Corporations — Right of Action — Breach of Contrast with. Promoter.</p> <p>A corporation does not succeed to. the right of action of one of its promotors against his agent for breacn of the contract of agency, antedating the existence of the corporation and complete in all respects before the date of its organization, in the absence of an express assignment thereof, (p. 629).</p>

<p>PROCESS — Amendment of Summons.</p> <p>Under §15, ch. 125, Code 1906, a summons in assumpsit, served on defendant, may tie amended so as to correct the variance between it and a declaration in trespass on the . case.</p>

<p>Vendor and Purchasers — Taos Title — Rights of Vendee.</p> <p>A vendee in possession can not thereafter acquire a tax title to the land and claim thereunder adversely to the vendor.</p>

<p>Error to Circuit Court-, Mingo County.</p> <p>• Action by Lorenzo Dow Kennedy, by his next friend, against the Glen Alum Coal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error to Circuit Court, Raleigh County.</p> <p>Action by T. C. Bowling against D. B. Walls and others. Judgment for defendant and plaintiff brings error.</p>

<p>1. Equity — Bill—Multifariousness.</p> <p>A bill by the widow as administratrix praying that the land of the decedent he subjected to the payment of his debts because of insufficient personalty, and in her own right praying that dower be assigned her before sale of the land, is not bad on demurrer for multifariousness. (p. 641).</p> <p>2. Same — Bill-Demurrer—'Hule to Answer.</p> <p>On the overruling of a demurrer to the bill, if the defendant does not answer or waive his right to do so, a rule to answer must be given him before any decree affording the plaintiff relief can be taken, (p. 641).</p> <p>3. Doweb — Admeasurement—'Notice to Heir.</p> <p>The heir should have notice of the time when commissioners appointed to lay off dower will act. If they act without notice to him and in his absence, their report will be set aside upon his exception, (p. 642).</p>

<p>Appeal from Circuit Court, Fayette County.</p> <p>Bill by J. F. Cavendish against the Board of Education of the District of Nuttall and others. Decree for defendants, and plaintiff appeals.</p>

Suit by E. W. Brown, executor, against C. L. Brown and otli- • ers. From a decree for defendants, plaintiff appeals. Charles L. Brown, and Charles E. Hogg, for appellees.

Action by Fonrose Shipley, Administrator, etc., against the County Court of Jefferson County. On a demurrer to the evi-deuce tlie jury rendered a conditional verdict for plaintiff, and, the court having sustained the demurrer and dismissed the action, plaintiff brings error.

<p>1. Municipal Corporations — Commission Form of Government— Effect as to Political Organizations.</p> <p>The charter of the City of Bluefield, providing for commission bi-partisan government, does not guarantee the existence of established political organizations nor preclude the formation of new ones. (p. 664).</p> <p>2. Erections — Party Organisation — Affiliation of Voters.</p> <p>Voters may belong to one political organization for national and state purposes and another for municipal purposes, (p. 664).</p> <p>3. Same — Voters—Party Affiliations.</p> <p>In an election under said charter, a voter may vote for the regular candidate of the Republican party, nominated by convention, and for the candidate of the Independent Republican party, nominated by petition, they being on separate tickets on the same ballot sheet, notwithstanding the latter filed an affidavit saying he was a member of the Republican party, claimed allegiance thereto and had been nominated by petition, (p. 665).</p> <p>4. Same — Ballots—Mode of Voting.</p> <p>Under said charter, authorizing any political party to nominate twice as many candidates for offices as can be elected to-represent it in offices of the class for which they are nominated, a voter may validly vote for all the candidates on his ticket, and is not bound to vote for only part of the candidates on his ticket for a given office and the balance on some otlier ticket, (p. 665).</p>

<p>1. Pleading — Verified Denial — Sufficiency.</p> <p>The form for verification of pleadings, prescribed by § 42, Ch. 125, Code 190C, is insufficient as an affidavit by defendant under § 46 of the same chapter, unless when read with the pleading thus verified á denial of liability in whole or in part substantially appears therefrom.</p> <p>2. Same.</p> <p>A case wherein the plea and verification are held insufficient.</p>

<p>1. . Municipal. Corporations — Obstruction of Street — Aioning— “Public Nuisance.”</p> <p>A private awning erected .over a public street without lawful authority is a public nuisance, whether it materially interferes . with public travel or not. (p. C73).</p> <p>2. Nuisance — •Right to Enjoin — Parties.</p> <p>A private individual may maintain a suit to enjoin a public nuisance only when his rights are injuriously affected in a, special manner, different from the public in general, (p. G74).</p> <p>3. Municipal Corporations — Streets—Right of Abutting Owners.</p> <p>In addition to his right to use the highway in common with the general public, an abutting owner has also a special right of access thereto and to light, air and view therefrom. These are property rights, and exist regardless of the ownership of the fee in the highway, (p. 674J.</p> <p>4. Same — Powers—Control of Streets.</p> <p>The council of a city, unauthorized by its charter to do so, acts u-ltra vires when it attempts to permit the permanent occupation of any portion of its public streets for private purposes. (p. 675).</p> <p>5. Action — Nuisance—Action to Enjoin — Defenses—Maintenance of Similar Nuisance.</p> <p>In a suit to abate a nuisance it is no defense that plaintiff maintains a similar nuisance, or that he was actuated by spite- ■or ill-will to bring his suit. The court can not inquire into plaintiff’s motives for suing, (p. 676).</p> <p>6. Nuisance — Public Nuisance — Right to Enjoin.</p> <p>Before equity will abate a public nuisance at the suit of a private individual it must appear, not only that plaintiff is specially damaged by it in a manner different from the general public, but also- that his injury is serious, affecting the substance and value of his property, (p. 676).</p> <p>7. Municipal Corporations — Obstruction of Street — Action to Enjoin — Injury—Sufficiency of Evidence.</p> <p>A case in which relief is denied because of failure to prove injury</p>

<p>Error to Circuit Court, Taylor County.</p> <p>Action by John AY. Selvey and others against the Grafton Coal & Coke Company. Judgment for plaintiffs, and defendant ' brings error.</p>

<p>Appeal from Circuit Court, Mason County.</p> <p>Bill by Millie C. Wiley against J. Bobert Ball and others. From a decree for defendants, plaintiff appeals.</p>

<p>1. Municipal 'Corporations — Powers—Abatement of Nuisance.</p> <p>Under the provision of thé charter of the city of Fairmont, same as Code, ch. 47, sec. 28, that “the council shall have power to abate or cause to be abated anything which, in the opinion of a majority of the whole council, shall be a nuisance,” the council may abate only that as a nuisance which is recognized as such per se, or branded as such by lawful statute or ordinance. (p. 689).</p> <p>2. Same.</p> <p>The production and emission of smoke from the plant of a lawful business can not be abated by the city of Fairmont under its mere charter powers to abate nuisances and to prevent injury and annoyance, in the absence of a reasonable ordinance, applicable alike to all of a class, making such production and emission unlawful, (p. 689).</p> <p>3. Injunction- — Grounds—Municipal Corporations — Abatement of Nuisance.</p> <p>Equity will restrain a municipal corporation from proceeding under illegal and invalid order or resolution to remove an alleged nuisance, where private rights are unlawfully encroached upon and irreparable injury will ensue, (p. 692).</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by Lena Greer against E. P. Arrington. Judgment for plaintiff, and defendant brings error.</p>

<p>Account Stated — Sufficiency of Evidence.</p> <p>The judgment below is supported by the facts proven, and is therefore affirmed.</p>

<p>1. Judgment — Verdict—Judgment Non Obstante Veredicto.</p> <p>The plaintiff in an action, claiming more than the defendant admits to be due from him and having a verdict for the amount so admitted, is not entitled to a judgment non obstante veredicto-for a sum larger than the verdict, when sufficient pleadings-have put in issue his right to have more than the sum so admitted, (p. 705),</p> <p>2. pBtNcn’Ai, and Agent — Appeal and Error — Action by Principal— Evidence.</p> <p>Acquiescence by an agent in statements of the account between them rendered by his principal, and his failure to object to the same in any manner, supplemented by evidence showing the relation of principal and agent and a course of business between them, are sufficient evidence of liability, in the absence of opposing evidence, to call for a verdict against him, and the verdict of the jury ignoring such evidence should be set aside. •(P. 705).</p>

<p>Error to Circuit Court, Marshall County.</p> <p>Action by E. M. Atkinson against the Virginia Oil & Gas Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Municipal Cokpokations — Abatement of Nuisance — Powers.</p> <p>Under the provisions of the charter, of a city that the council thereof shall have the power “to regulate the making of division fences and party walls, by .the owners of adjoining and adjacent premises and lots; to prevent injury or annoyance to the public or individuals from, anything dangerous, offensive or unwholesome; and to abate by summary proceedings whatever in the opinion of the council is a nuisance”, the council may abate only that as a nuisanc-e which is recognized as such per- se or branded as such by a lawful statute or ordinance, (p. 714).</p> <p>2. Ixjt,\vc"jtox — Public Officers — Illegal Resolution — Abatement of Nuisance.</p> <p>Equity has jurisdiction to restrain a municipal corporation from proceeding, under an illegal and invalid order or resolution, to remove an alleged nuisance, where private rights are encroached upon and substantial injury will ensue, (p. 715).</p>

<p>An offer and acceptance for tire sale of drug store fixtures were in the following form:</p> <p>. “We propose to furnish and erect complete in your store at Charleston,' W. Va., the following fixtures: 25 foot wall case (McLean style); IS foot tincture shelving; 11 foot patent medicine.case; 6.foot tobacco case and humidor; 6 foot mirror; 12 . foot R X work counter; 12 foot R X partition IS foot 6 inch settee,' upholstered in green leather; 7 foot 6 inch mirror, above settee; 14 foot 6 inch ‘L’ case; three 6 foot — cases; 5 foot wrapping counter, glass front and sliding door; 10 foot laboratory table.</p> <p>Exposed parts of above in solid and veneered mahogany; all glass bevel plate, and all mirrors No. 1 grade same, metal back; all cas.es, to be all plate — plate shelves 10" marble base; finish— best quality, hand-polished and rubbed. Complete plans, specifications and details to be submitted and approved by purchaser. Price .$2145”. Bbkn'aiu) Gloeokleh Co., Per Leon Shipman. Accepted: Jas. A. Carr, Carr’s Drug Store”,</p> <p>Held, in view of the evidence:</p> <p>1. Sales — Contract—Proposal and Acceptance — Binding Effect.</p> <p>That the contract was mutually binding on both parties, and . Carr could not revoke it. (p. 721).</p> <p>2. Same — Contract—Breach—What Constitutes.</p> <p>That his refusal to take the fixtures in conformity with the contract was a breach thereof, (p. 721).</p> <p>3. Same — Contract—Validity.</p> <p>That the contract was not invalid and unenforceable because of the concluding clause thereof, (p. 721).</p> <p>4. Same — Contract—Description—Sufficiency.</p> <p>That the contract is sufficiently definite in the description of the fixtures, (p. 724).</p>

<p>Error to Circuit Court, Brooke County.</p> <p>Action by Estella Guerin and Frank L. Guerin, her husband, against the Pittsburg, Cincinnati, Chicago & St. Louis Eailway Company. Judgment for plaintiffs and defendant brings error.</p>

Action by Annie L. Guy against the Lanark Fuel Company. Yerdiet for plaintiff, and, from an order granting a. new trial, plaintiff brings error.

<p>Railroads — Injury to Live Stock — Evidence.</p> <p>Demurrer to evidence rightly sustained.</p>

<p>1. Livery Stable Keepers — Keeper of Garage — Care of Automobile — Diligence.</p> <p>The law enjoins on the keeper o£ a garage for hire the duty safely to keep an automobile left in his custody, and he is bound to the exercise of reasonable diligence and care to that end.</p> <p>■ 2. Same — Keeper of Garage — Duties and Obligations.</p> <p>A count in assumpsit charging a garage keeper with the duty to take due and proper care of an automobile left in his custody and safely and securely to keep, store and care for the automobile without damage or injury, does not charge a higher degree of care than the law enjoins — reasonable or ordinary care, to protect from injury.</p> <p>3. Damage — Evidence—Pleading.</p> <p>A smaller amount of damages or injury than that laid in the declaration may be proved.</p> <p>4. Livery Stable Keepeks — Garage Keepers — Diligence—Customs.</p> <p>A custom of garage keepers contrary to the implied obligation of reasonable care for safe keeping, arising in favor of an automobile owner by the storing of his car at a public garage, can not absolve the garage keeper from observance of such care.</p> <p>5. Same — Garage Keepers — Cuslody of Car.</p> <p>No garage keeper in the exercise of reasonable care can release a car left in his custody to another than the owner, without the latter’s order, expressed or reasonably implied.</p> <p>d. Master and Servant — Torts of Servant — Scope of Employment.</p> <p>A garage keeper can not leave the garage solely in the hands of a servant and then say that the latter’s negligence in releasing a car to one without authority from the owner is beyond the scope of his employment.</p>

<p>Error to Circuit C'ourt, Cabell County.</p> <p>Actio^ by W. H. Wilson against J. W. Johnson. Judgment for the defendant and plaintiff brings error.</p>

Bill by 'William A. Davidson, administrator, against George T. Davidson and others. Decree for plaintiff, and defendants French Shultz, his next friend, and others, appeal.

Bill by the Beserve Gas Company against the Carbon Black Manufacturing Company and others. Judgment for plaintiff, and the J\fanuf acturing Company appeals.

<p>1. Railroads — Grant of Right of .Way — Construction—Width Fixed l)y Use.</p> <p>Possession of a strip of land by a railroad company, mani- ‘ tested and evidenced by maintenance of its tracks on a part thereof and inclusion of the residue within a fence and care of it, as by mowing it regularly, for a long period of time, as and for its right of way, under a general and indefinite grant thereof by deed, not specifying its width, without objection on the part of the owners of ihe tract of land out of which the grant was made, constitutes a practical construction of the grant, fixing and determining the width of the right of way and making, it eo-extensive with such possession, although the possession and acquiescence are not shown to have commenced with the date of the deed or the construction of the road. (p. 769).</p> <p>2. Same — Grant of Right of Way — Enjoyment—Construction of Side Track.</p> <p>The construction of a side track within the area so occupied and used by the railroad company is not an enlargement of the easement granted by the deed and defined by the conduct of the parties, (p. 771).</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Bill by George Cumberledge against Godfrey G. Cumberledge and others. From a decree for plaintiff, the. defendant named appeals.</p>

<p>Original application for a writ of mandamus by Claude A.</p> <p>Thomas against the State Board of Health.</p>

<p>Wills — Action—Sufficiency of Evidence.</p> <p>On the trial of an issue devisavit vel non, the only evidence in relation to the due execution of the will is the testimony of the two subscribing witnesses, both of whom prove the competency of the testator, and one of whom testifies that he wrote the will at testator’s request and read it to him; that the other subscribing witness, who lived near by, was then sent for and came; that the three were present together in the room when testator and the two witnesses signed the paper. The other witness admits that he was called in to witness the will; .that all three of them were together in the room; that a portion of the will was read to him and that he signed it as a witness in the presence of the testator and the other witness; but he denies that he saw the testator or the other witness sign it, or that he saw their names on the paper at the time he signed it. Held: That the verdict of the jury, which was against the validity of the will, was not supported by the evidence, and the court properly set it aside.</p>

<p>1. PARTNERSHIP — -Contract—Accounting.</p> <p>Under a contract of partnership for a mercantile business one partner furnished the capital and the other his services as manager and a building for the business, the profits and losses to be shared equally; the capital was invested in goods and the partner furnishing the same was credited therefor on the books of the firm; each partner was charged on the books with what he took for his own use from the stock; goods were sold, and the stock was replenished by money and profits of the firm:</p> <p>Held, in a suit to settle the partnership affairs after the stock and building were destroyed by fire and the business thereby discontinued, that,</p> <p>The capital furnished became partnership property and the loss of the goods fell not alone on the partner furnishing the capital, but it was proper to repay him the capital furnished, to the extent of the firm’s assets remaining after a payment of the firm’s debts, and to charge the other partner with half the loss of capilal remaining, though the latter lost his services and building, (p. 786.)</p> <p>2. Same — Contract—Construction and JSffect — Accounting.</p> <p>Where a written contract of partnership either from its terms or by the acts and conduct of the parties is made to relate to a partnership business already existing at the time of the execution of the writing, transactions of the firm prior to the date of the contract as well as those subsequent to its date are properly cognizable in a suit for a settlement of the partnership affairs, (p. 788).</p> <p>3. Same — Accounting—Decree—Sufficiency.</p> <p>In a suit for the settlement of a partnership in which a partial loss of the capital furnished wholly by one partner is found but the amount thereof not • definitely shown by reason of the uncertainty of the collectability of notes and accounts going to make up the assets applicable to a repayment of the capital furnished, a decree settling principies óf the cause whereby the amount is to be ascertained and one-half thereof paid to the partner furnishing the capital by the other partner, on which future decree may follow, is not erroneous on the ground of indefiniteness as to the amount, (p. 789).</p>

<p>1. SufficieNct of Pleading — Divorce.</p> <p>Quaere: — In a suit for divorce does good pleading require that the hill should set forth the specific facts relied on as showing the grounds for divorce? (p. 791).</p> <p>2. Divorce — Desertion—Justification.</p> <p>The conduct of one spouse which will justify the other in leaving and breaking off the matrimonial relations must be of such, a nature as to he inconsistent with such matrimonial relations or render cohabitation unsafe, (p. 792).</p> <p>3. Same — Proof Required.</p> <p>To justify a divorce from the bonds of matrimony the evidence of the facts showing grounds of divorce must be clear and convincing, else divorce should be denied, (p. 792).</p>

<p>1. Evidence — Copy of Recorded Grant — Admissibility.</p> <p>. A copy of a grant of land by the Commonwealth of Virginia, certified by the auditor of this state or the register of the land office of Virginia, showing no seal of the commonwealth thereon, nor anything indicating that it had borne such seal, when recorded, is admissible as evidence of title to the land, upon the presumption that the original is under seal, arising from the recordation thereof and the recital in the testimonium clause that the governor had affixed the seal. (p. 795).</p> <p>2. Wills — Probate—Admission to Record — Collateral Attack.</p> <p>Admission to record, by the clerk of a county court of this state, of a copy of a will probated in another state, amounts to probate thereof which cannot be collaterally drawn in question nor set aside otherwise than in the manner prescribed by statute, (p. 797).</p> <p>3. Public LANDS — Entry of Indefinite Description^Effect — Subsequent Grant.</p> <p>An entry of land, general and indefinite in its prescription of tlie land claimed under it, and afterwards carried into survey and grant, relied upon as proof of an exception, from another grant, of land susceptible of inclusion by tbe description of tbe entry, but lying entirely outside of tbe lines of tbe survey and patent founded on tbe entry, may be treated by a jury as calling only for the land surveyed and granted and as having been deemed by tbe surveyor to be identical with tbe survey and merged therein and tbe land lying beyond tbe lines of tbe survey as not having been excepted, (p. 798).</p> <p>4. Ghant or Public Land — Survey.</p> <p>Quaere, whether, to except an entry not specifically excluded by a grant with reservations, authorized by tbe Act of June 22, 1788, the survey designating the entry must be produced, (p. 802).</p>

<p>Paktition — Grounds of Receivership — Preservation of Property.</p> <p>When a tract of land, containing large and valuable deposits of oil and gas, as indicated by operations upon adjacent land, is the subject matter of a suit in partition, and there is imminent danger of loss to the cotenants by drainage through the operation of wells on adjaecnt land, and the parties interested therein and owners in fee simple are unable to agree upon some plan for development of the land for its oil and gas, or son these parties refuse to join in such- measures, the court in v the suit is pending may appoint a receiver to produce tli and gas as a measure of preservation.</p>

<p>Error to Circuit Court, Wood County.</p> <p>Action by the Cable Company against J. "W. Mathers and others. Judgment for defendant and plaintiff brings error.</p>

Action by the State for use of Mary Patton Hudson, against J. H. Nash and others. Judgment for plaintiff and defendants bring error.

<p>1. Public Lands — Suit for Sale of Forfeited School Lands] cree.</p> <p>Though, a decree of dismissal in a suit for the sale of as forfeited, for the benefit of the school fund, incites til is entered on motion and by the consent of the commissi of school lands and the attorney prosecuting the cause, it is based on a report of the commissioner of school landj suant to the latter provision of Code 1906, ch. 105, sec. actually dismisses lands from the cause, it is not a | retraxit but an adjudication, (p. 818).</p> <p>2. Same — Suit for Sale of Forfeited School Lands — Rep Commissioner.</p> <p>When a new county is formed from the territory of a ( in which a suit for the sale of forfeited lands has been tuted, the commissioner of school lands of the new count make the report -in the suit which is contemplated by the latter provision of Code 1906, ch. 105, sec. 6. (p. 819).</p> <p>3. Same — Suit for Sale of Forfeited School Lands — Report of Commissioner — Hearing—Delay—Ground's.</p> <p>A hearing of the matters raised by the report of the commissioner of school lands, pursuant to Code 1906, ch. 105, sec. 6, will not be delayed to enable a formal party, to the cause, claiming the right to redeem, to contest the same, when the matters are the same as those already raised by the bill and as to which ne has had ample time to present his case. (p. 819).</p> <p>4. Same — Suit for Forfeited School Lands — Dismissal.</p> <p>When it appears by a report of the commissioner of school lands that the forfeited title to tracts involved in a suit for the sale of forfeited lands has been granted by the State to another and that there has been no subsequent forfeiture of the same, the suit may properly be dismissed as to such tracts. (p. 821).</p>

<p>1. Judicial Sales — Commissioner to Sell Lands — Bight to Sue.</p> <p>Without authority of the court appointing him, a special commissioner to sell land has no authority to institute and prosecute suits. Shch authority must be specifically conferred, or necessarily implied from some other power specifically given by decree, (p. 822).</p> <p>2. Same — Commissioner to Sell Lands — Right to Sue — Appointment — Construction.</p> <p>A decree or order in such suit substituting a special' commissioner in place of one previously appointed, and who has defaulted in the performance of his duties, with direction “to do and perform all acts, duties and matters and things in and about said causes, required by the decrees and orders therein respectively, not already done and performed by said commissioner,” constitutes no authority in the substituted commissioner to institute and prosecute a suit in equity against such former commissioner and the sureties on his official bond, where the only authority conferred on such former commissioner, after confirming his report of sale, was, out of the cash money in his hands, to pay the costs, and the residue to the parties entitled thereto, and as the purchase money notes fell due to withdraw-the same from the papers, leaving certified copies, and to collect and pay over the same to the parties entitled thereto, (p. 822).</p>

<p>1. LiMitation or Actions — Action on (Contract.</p> <p>If by the express terms of an oral contract for continuous services, -or the clear understanding of the parties, payment therefor is to he postponed until the death of the promisor, or provision made therefor in his will, right of action on the contract does not accrue to the other party until the death of the promisor, and the statute of limitations does not begin to run until the event contemplated happens, (p. 825).</p> <p>2. Contracts — Construction—1Payments.</p> <p>Though such contract does not so expressly provide for postponement of payment, yet if from the peculiar circumstances of the parties, the dealings between them, their confidential relations, and the declarations of the promisor, it clearly appears that such was the understanding'by which they were to be bound, the contract should be so interpreted and enforced, (p. 825).</p>

<p>Appeal from Circuit Court, Logan County.</p> <p>Action by Charles H. Freeman against Martin Egnor and others. From a decree for plaintiff, defendant South Penn Oil Company appeals.</p>

<p>1. Coepobationst — Bonds—Past Due Coupons — Right of Holder.</p> <p>An action at law may be maintained and prosecuted to final judgment, by the owner, on past due coupons, parts of corporate bonds, secured by mortgage, nothing therein expressly restricting such right, notwithstanding the provisions in the mortgage for sale, suit, or entry upon and management of the mortgaged property by the trustee on the request of one-third of the bondholders after default by the company in payment of the coupons, (p. 836).</p> <p>2. Same — Corporate Bonds- — Right of Action.</p> <p>The common law right to sue upon a bond is not affected by the remedies provided in the mortgage given for its security, unless the provisions of the mortgage exclude such right in express terms or by necessary implication, (p. 886).</p> <p>3. Same.</p> <p>But execution on a judgment obtained in such action is not leviable on property covered by the mortgage, (p, 840).</p>

<p>1. Boundaries — Surveys—Monuments.</p> <p>A subsequent survey calling for lines of the older one is not a monument thereof, and the call therefor is only a circumstance, admissible under some conditions, as evidence of the location of the lines of the older survey, (p. 845).</p> <p>2. Same — Establishment.</p> <p>One or more monuments of a tract .of land having been ascertained, the courses and distances are entitled to controlling effect in the location of others as to the identity of which the evidence is slight, circumstantial and conflicting, (p. 846).</p>