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payable, tbe court should ascertain the amounts and priorities of
such Hens, and decree tbe land to be sold to satisfy said liens as well
as that of tbe plaintiif.

3. In such case It Is reversible error to decree a sale of the land
subject to prior Hens.

W. 1/9. Bowman vs Dewing & Sons.

Dent, J.

From Randolph County.



1. On demurrer to evidence the rule In this State, as In Virginia,
Is to certify and consider tbe whole evidence as though on motion to
set aside a verdict in favor of the demurree.

2. A sale made In 1843 of a tract of land under a forfeited title
which does not include or cover such land is void, and a deed made
by virtue thereof Is also void and can vest no title in the purchaser
and those claiming under bim except sucb title as may be In tbe
state at tbe date of such deed.

3. Section 3, Acts 1841-2, vests any forfeited title to a tract of
land In any person having Just title and claim to such land, legal or
equitable, claimed, held, or derived from or under any grant of the
commonwealth, bearing date previous to tbe first day of January,
1843^ who shall have discharged all taxes duly assessed and charged
against him upon sucb lando, and all taxes that ought to have been
assessed or charged thereon from the time that he acquired title
thereto, whether legal or equitable.

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THE BAR. 249

B. W. Foley ys F. J. Buley et als.

Poffenbarger, J.

From Doddridge Gouoty.

Reversed and remanded.


1. A creditor who, after his debtor has made a fraudulent or
Toluntary cooveyaoce of his real estate, but before any other creditor
flies a bill io equity to set aside such conveyaoce, obtains a Judgment
in a court of law against such debtor, has a lien by virtue of his
Judgment upon the real estate so conveyed from the date of the
Judgment superior and prior to that of the creditor assailing

the deed.

2. When all the creditors, assailing a fraudulent or voluntary
conveyance, are Judgment creditors, the lien of each dates from the
time he obtained his Judgment, and not from the date of the filing of
his bill, answer or petition attacking the fraudulent or voluntary
conveyance, and the priorities among them must be settled
according to the dates of their Judgments.

3. A creditor at large is not entitled to priority over one who has
obtained a Judgment against the debtor subsequent to the date of the
fraudulent conveyance, but before the filing of the bill by such
creditor at large to set it aside, although he is entitled to priority
over one who obtains his Judgment after the filing of such bill.

A. F. Bohrbough vs The United States Express Ck).

Poffenbarger, J.

From Barbour Oounty.

Beversed and Judgment for defendant.


1. In reviewing a Judgment in a case tried by the court in lieu of
a Jury, the Appellate Court treats it as a case standing on a demurrer
to the evidence.

2. When an agent is commissiooed to do any act, nothing being
said as to the mode of performance, he has an implied power to
perform bis duties in accordance with any recognlied usage or mode
of dealing.

3. An agent has no power to delegate his agency to another, or to
sublet it; but he may employ clerks, whose acts, if done in his name
and recognised by him, either specially or according to his usual
mode of dealing with them, will be regarded as his acts, and as such
binding on the principal.

4. The powers of an agent are to be exercised for the benefit of bis
principal only, and when he acts otherwise, with the knowledge and
participation of the person relying upon his unauthorised act, his
principal is not bound by such act.

5. Where an agent of an express company entrusts to another in
the office with him, but not in the employ of the express company,
the transaction of its business, under his supervision and control,
and without the knowledge of the company, and such employe of the
agent goes out and solicits deposits of money with him in exchange

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250 THB BAR.

for money orders of the company, and so receives money and issues
sucb orders, without requiring payment of the usual fees or charges
upon such orders, and absconds with the money, the person making
such deposits does it linowing such issue of orders Is beyond the
powers of the agent for whom such employe professes to act, and he
cannot recover from the company on the orders.

9. If an agent disregards specific instructions as to the mode of
executing his powers, in respect to a matter as to which he is held
out to the public by his principal as having full power and authority,
his acts are, nevertheless, binding upon his principal as regards
third parties having no notice of such instructions.

Ernest W. Koelz vs George.

Poffenbarger, J.

From Taylor Gounty.

Beversed and remanded.


1. In the settlement of the accounts of a solvent co-partnership,
on dissolution, the commissioner, before undertaking to ascertain
the net aissets and profits and distribute the same, should find the
true state of the accounts between the firm and each of its members,
as separate and distinct settlements, after which sums due the firm
from its individual members, however incurred, are to be treated as
assets, and sums due from the firm to its members as liabilities.

2. In such case, having so settled the accounts between the firm
and its members, the net assets should then be ascertained by
deducting from the total assets the total liabilities, after which the
total capital contributed by the members of the firm should be
deducted and the remainder divided as profits, according to the
agreement of the parties.

3. In ascertaining the state of the accounts between the partners,
where the firm is composed of but two members, and one has taken
all the assets and assumed the payment of all the debts, each should
be credited with what the firm owes him, if anything, with what he
has assumed to pay for the firm, if anything, with his capital
contributed and with his share of the profits, and then charged with
what he owes the firm, if anything, and with whatever assets of the
firm he has taken by the dissolution agreement, if any. The balance
then struck will show what is due to and from the co-partners

Atkinson vs Plum.

Brannon, P.
From Wood Oounty.
Decree aiflrmed.
1 . Where one releases a deed of trust and takes a new deed of trust
for a balance of his debt, a lienor subsequent to the first deed of
trust thus gets preference over the second deed of trust, and equity

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THB BAR. 251

will Dot cancel the release against such second lienor, except for
fraud or mistake.

2. To create an estoppel by consent there must be some conduct
of tbe party amounting to a representation or concealment of
material facts.

3 . To create an estoppel by conduct the representation must be
made with the intention, actual or fairly to be inferred by the other
party that such other party should act upon it, or such representation
should be so grossly negligent as to mislead another to his injury,
and thus amount to fraud constructively.

4. The doctrine of estoppel by conduct always presupposes error
on one side and fault or fraud upon the other, and some defect of
which it would be inequitable for the party against whom the
doctrine is asserted to take advantage.

5. It is essential to an estoppel by conduct that the party
claiming to have been influenced by the conduct of another should
not only be destitute of information as to the matter to which such
conduct relates, but also without convenient and available means
of acquiriog such information.

6. To authorize equity to cancel a writing on the ground of
mistake, based on mistaken belief of a party, that belief must be a
fair and reasonable one Justified by facts adequate to inspire it.

Sampson Harbert, Plaintiff below, Defendant in Brror,


Monongahela Biver Bailroad, Defendant below. Plaintiff in Error.
Poffenbarger, J.
From Harrison Oounty.
Reversed and remanded.
Where a party, against whom a Judgment was rendered by a Justice
of tbe peace, on the verdict of a Jury, obtained a writ of certiorari
and removed the same into the circuit court to be reversed, being the
decision of the case of Richmond v. Henderson, 48 W. Ya., 37 S. E.,
653, and said Judgment was alflrmed by the circuit court and a writ
of error awarded by this court, before said decision of Richmond v.
Henderson, and the plaintiff in error has asked that said o&rUorari be
treated as an appeal, the Judgment of the circuit court should be
reversed and the case remanded with directions to treat it as being
iix said circuit court on appeal and proceed with it accordingly.

Sample vs Consolidated Light and Railway Oo.
McWhorter, J.
From Cabell Oounty.
1. A declaration by the motorman running on an electric car
made while the car was still on the body of one it had run down,
that **I saw the child, but thought I could pass it," or, <<This is a

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terrible thlog; I saw the child, tat thought I ooold ran iMSt It,'* la
atdmlssible In evldeooe as a part of the ret ffedm in an action for
the iojaiy.

2. A motorman in charge of an eieotrtc car moving in the [Niblic
street, where he has reason to expect little children are playing,^ most
exercise a high degree of watchfalness in the operation of the car.

The Horner Gaylord Company, Appellanti


W. 0. Ftiacett and others, Appellees.

From Harrison Ooanty.



1. A deed of trust executed in good faith to secure a bone fide debt
on a stock of goods and extending to cover after-acquired property,
duly recorded, is not fraudulent per se or prime fade fraudulent as to
subsequent creditors with notice in equity.

2. A subsequent execution creditor has a plain adequate remedy
at law as to such after-acquired property, but equity will afford him
no relief, as such deed as to such property is void at law, but will be
sustained in equity.

M. D., of Boston, a devotee of the wheel, was not long ago
visiting in one of the small towns of western Massachusetts. He
was taking a spin about the streets shortly after his arrival, when
he was run down, as he afterwards declared, by a n^;ro and
knocked off his bicycle. The fall not only ruined his clothes, but
broke his skin and wheel

These combined ii^uries made a breech in his placidity, and he
picked up a stone and threw it with accurate aim at the colored
man and brother. This infraction of the peace resulted in his
arrest and in his conviction in the local court ot justice.

*'I fine you five dollars,'* said the judge. "^Have you anything
to say?

""Nothing," replied D., unmolllfled, "'except that I wished I had
killed the fellow.''

"friiat remark will cost you five dollars more,'' remarked his

D's temper was not improved by this firesh dispensation of
justice, wherefore the bitterness of his rejoiner was plainly

'"Conversation seems to come high in this court," he observed.

""Five dollars for comtempt," promptly responded the bench.
""Have you anything more to sayV

""I think not," answered the defendant ""Ton have the
advantage of me in repartee."

Payment of the fines closed the case.

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THE BAR. 263

When Linocdii and Beeober Prayed Together.

(By Banrael SooTiDe, Jr., Beedhflr*8 Gnndaon.)

Id the life and character of Abraham LIdcoId there are so many
etriklDg characteristics that It Is easy to overlook the hidden and
deeper part of his life, even as Id looking at his face we note the
humorous mouth which smiled so often and laughed so seldom, and
overlook the sadness of those deep-set patient eyes. So, too, in the
glory of bis achievements is forgotten the pathos of the lone figure
which guided this country in her time of need through deep waters
Into a safe harbor. On him was heaped all the blood and tears and
toil and agony of those terrible war years, of which this generation
knows only by hearsi^. It Is perhaps impossible to realize what
Lincoln must have suffered as the embodiment of the nation during
her sorrow and travail. One anecdote which is not generally known
perhaps illustrates the source of the power of his nature better than
almost any other.

During the year 1862, the hopes of the North were at their lowest
ebb. It was in that year that the second battle of Bull Bun had
been fought and lost, McClellan was entrenched before Richmond,
and the strength and resources of the nation seemed to have been
fruitlessly wasted. Henry Ward Beecher was then in Brooklyn, and
was perhaps more prominently associated with the cause of the North
at that time than any other minister of the gospel. He had preached
and lectured and fought its battles in pulpitand press all over the
country, had ransomed slaves from his pulpit, and his convictions
and feelings were everywhere known.

Late one evening a stranger called at his home and asked to see
him. Mr. Beecher was working alone In his study, as was his usual
custom, and this stranger refused to send up his name, and came
muffled in a military doak which completely hid his face. Mrs.
Beecher's suspicions were aroused, and she was very unwilling that
he should have the interview which he requested, especially as Mr.
Beecher^ life had been frequently threatened by sympathisers with
the South. The latter, however, insisted that his visitor be shown
up. Accordingly the stranger entered, the doors were shut, and for

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boors tbe wife below ooold bear tbeir Tofces and tbeir footsteps as
tbey paced back aod forth. Ftoally, toward iDidolgbt» the
mysterioos Tisitor went oat, still muffled io bis cloak, so that it was
impossible to gaio any idea of bis features.

Tbe years weot by, tbe war was flnisbed, tbe President bad
suffered martyrdom at bis posi, and it was not until shortly before
Mr. Beecber*s deatb, over twenty years later, that it was known that
tbe mysterious stranger who bad called on tbe stormy winter night
was Abraham Lincoln. Tbe stress and strain of those days and
nights of struggle, with all the responsibilities and sorrows of a
nation fighting for its life thrust upon him, bad broken down his
strengtb, and for a time undermined even bis courage. He had
traveled alone in disguise and at night from Washington to
Brooklyn to gain tbe sympatby and help of one whom be knew as a
man of Grod, engaged in tbe same great battle in which be was the
leader. Alone for hours that night tbe two bad wrestled together in
prayer with tbe God of battles and the Watcher over tbe right,
until tbey bad received tbe help which He had promised to those
who seek his aid. Whatever were the convictions and religious
belief of Abraham Lincoln, there is no doubt that he believed in
prayer, and made that the source of bis strength. — The OuUook.

In 1858, during the Senatorial campaign in Illinois, when
Abraham Lincoln was canvassing the western part ol the State,
he made a speech at Rushville, in Schuyler county, which was
reported by a young lady who wrote occasionally for the local
paper, the Schuyler Citizen, As an introduction to her report of
the speech, which appeared in the next number of that jonmal,
she said:

*'So many people had told me that Mr. Lincoln was a miracle of
homeliness, that I expected to see the ugliest man in Illinois. *
Instead of that, I saw a man whose face lit up in a most
extraordinary way when he talked, and I don't care what
anybody else's opinion is, I want to say that I consider Mr.
Lincoln one of the handsomest men I ever saw."

A copy of the paper with this paragraph carefully marked was
sent to Mr. Lincoln. He took it at once to his wife. ^Mary," he
said, ''I have always thought until now that you were the only
woman on earth who considered me a handsome man, and I have
not been absolutely certain about that, but it seems there is
one other."

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THE BAR. 265




JOHN A. HOWAItD, Wheeling (Ilrat DiBtriot).
B. D. TATiBOTT, EUdns (Second Disirioi.)
B. H. MOBTON, Addison (Third District.)
0. D. MEBBIOK, Parkersbnrg (Fonrth District.)
Z. T. VINSON, Huntington (Fifth District.)




W. P. WILLEY, Morgantown.
D. 0. WBSTENHAVEB, liartinsborg.
B. H. AMBLEB, Parkersbnrg.
HENBT H. BUS8ELL, Wheeling.
0. D. MEBBIOH, Parkersborg.

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GsoBos B. OAijywBx, Wheeling.
T. L. BMnnanm, Welch.
J. Hop Woodb, Fhilippi
JoHM A. PBWTOHy Ijewiebvurg.
8. B. Haia, New MartinBTille.


B. M. AmuBy Pftrkenlyvg.
F. H. Bbthoumi, Keyeer.
Z. T. VzHBOV, Huntington.
E. W. Khzobs, OhwleBton.
Jomi A. HowABD, Wheeling.

TJ. 8. G. FXKMB, Martinsbnig.
0. W. Dzuxnr, Fayetteyille.
0. W. Dazlst, EUdns.
Edoab p. Buokbb, Welch.
Jomr A. Oampvuh Kew Cumberland.
8t. Gsobob T. Baoom, Morgantown.
Iba E. BoBzmMm, Grafton.
J. y. Blazb, West Union.
T. K. Bkxd, Hinton.
GxoBox E. MoCuBToo, Charleston.
Okxt Jomraoiri Morgantown.
Bosm WBzn, Wheeling.

D. B. IiOOASy CbarleBTown.

E. 8. DoozjTTia, Huntington.
M. G. Sfbbbx, darksbnrg.

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i m.



It beooniM sole surety oa all linds of bonds,


Looal agents at eyery Oonniy Seat In the State can execnte a bond for
yon witbont delay.

]>epoBits receiyed snbjeot to cheek.

Interest bearing oertifloates issued.

Ijoans made on real estate, personal seonritits, stocks, bonds and other

Acts as Execcntor, Tnistee, Administrator, Assignee, Beoeiyer, Guardian,
and in all other Fiduciary capacities.

H. G. Davis, President
S. B. Elkins, First Vice President.
W. G. Wilson, Second Vice President.
O. Jay Fleming, Secretary and Treasurer.
COUNSEL— C. W. Dailey and E. D. Talbott.

HOME OFFICE, Elkins, West Va.

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Tib Tinm-TKiBD Bmnom or thb Summbb Law Sobool opens JULY 1,
1903, and eonUmiM two months. The ooones offered haye proVed profitable
to TBosB /uiT noonnvo temsm fkwimkibji wivdimb; to Touvo raAonmnnu
who haye hicked the adTanta^ of gytematic inatmction; to older practition-
era who deaire to reriew eleoMntarj principlea; and in a marked degree help-
ful to OAMDSDATMM 70B Amfnuov TO THB BAB, oonducted t>7 the foil Law

For cataloffoe, ad dr eaa any of the nndenigned.

W. H. TiHiK,
Unhreraitj Station, B. 0. MIKOB,

CharlotteariUe, Ya. CHAS. A. O&AYES.

Dwycf $ Directory


The lawyers Id the sabjoioed list, have first-class standlot^ at the
respective bars where they practice law,















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International Public Law


lAte Minister PlenlpotentUry of the United State* to Sp«ln:
Author of ««The Orlgrln and Growth of the BoirlUh Constltatlon."

The most oompreheiiBiTe and ezhanstlTe treatlBe [upon the subject of In-
TEBNATioiiAi. PuBXiZO Law whioh has appeared in this country since Dana*s
Wheaton, embracing as it does, in a compact and attractive form, the results
of the expositions of all the notable European publicists, medieyal and mod^
em, Engush and ContinentaL

There is an originality of thought, a breadth of comprehension, and a
command of precedent that will bring to the learned author large praise. Its
well-written pages are a mine of information in which every reader will find
treasures, ^e work before us is of such a character as to make it indispen-
sable to the library of publicist, lawyer or student in politics— .BaiiTzmobs Sum.

His discussion of the many questions which have arisen during the last
fifteen or twenty years add greatly to the value of the work, and makes it al-
most necessary to any one who wishes to become familiar with the latest
phases of international public law.— Mb. Jubtiox Bbown, of the Supreme
Oourt of the United States.

We must have your text book for our law library, for the benefit of our
students, and I look forward to deriving much profit from it myself. It is
full of interest and sure to be useful. — Thomas Ebskinx Hollakd, Professor
of International Law and Diplomacy, University of Oxford.

I have seen no book on the subject which has pleased and impressed me
«s much.— BAunoH 0. Minob, Prof, of International Law, Univ. of Virginia.

AH students of international law will welcome Mr. Taylor's notable con-
tribution to the literature of the subject. His diplomatic experience qualified
him to write the work, which has been much needed.— Pbof. Hxmbt Booxbs,
of Yale University.

In this notable book on International Public Law he has rendered a time-
ly public service of the most wide-reaching importance. — Chzoaoo TmBUNX.

Like his great predecessor, Henry Wheaton, Mr. Taylor presents a pecu-
liarlv happy combination of scholar and man of affairs. — ^Pbofbssob Lawbenox


Accept my cordial congratulations. It is intellectual work like yours
-that redeems the higher professions from utilitarianism and mammonism. —
J, O. SoHUBXAH, President Ck>mell University.

jHE volume. 1000 PAGES. 16.50 NET.



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Will Go On Your Bond,

Citizens Trust^GnaraDty Co.


West Virginia.,

CAPITAL, ' \„ S250,000.00.

PvJd in full*
Aoeept«<l m» Sole Bnr^tj by the OoTemmmit of the United Stetee.

Transacts a General Tnist and Guaranty Business.

J. M. JACKSON, Jr., President.
J. B. PIN LEY, Secretary end Treasurer.

V. B. ARCHER, General Counsel.




J. M. Jackson, Jr., C. H. Shattack, S. D. Camden. J. N. Camden,
y. B. Archer, A. B. White, Thos. Gartlan, David £. Johnston,
Warren Milter, George M. Bowers, T. £. Davis, A. D. Follette,
W. P. Hubbard, Harrison B. Smith, J. B. Finley.

Caldwell A; Caldwell, John Bassell,

Dayton, Dayton A; Blue, Thomas P. Jacobs,

Limi, Withers A; Brannon, Simms A; Enslow,

Johnson A; Hale, 8t.Clair,Walker A; Snmmerfleld

John D. Alderscm, Henry B. Gilkeson,

Faulkner, Walker A; Woods, Brown, Jackson A; Knight,

Hunter H. Moss, Jr.
We act as receivers
Buy and sell bonds
Rent safety deposit vaults
Pay Interest on time deposits
Keep books and collect accounts
Become sole surety on bonds of all kinds
Make loans on collatoral and real estate
Collect incomes, rents, interests and dividends
Act as administrator, executor, guardian and committee.
Manage sinking funds for corporations and municipalities
Manage estates, real and personal, tor you or your children
Act as trustee under mortgages, assignments and deed of trust

We are prepdrod to exoonte Court Bondm
promptly at evory oounty seat in tho State. Ap^
ply to looal etgontm.

Home Omoop FarkersburSf W. Va.

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JUN&JULY, 1903.

''Oar system oJP govenmittit and the administration of oar
laws may not be perfect, bat, onder tfaem, a great people have
CHQJoyed a degree of liberty, secarity and, happiness that the
woridhas never elsewhere seen since civilization began. We
may labor, each according to his opportunities and ability, to make
them better, bat we do so withoat losing oar belief in their
ezcdlenceor oar faith in their permanency. Hiey embody the
wisdom of oar forefathers, the experience of ages. We have
prospered ander them in the past, they have met the conditions
of oar wonderful growth, and, as that growth expands in new
directions, they wOl be found adequate to meet the conditions of
the future. . As it is our privOege to study and oar desire to im-
prove them, so it is our peculiar duty to inspire, by word and
example^ respect for our country's laws and an appreciation of
the inestimable blessing of our country's government'*

Online LibraryWest Virginia Bar AssociationThe Bar, Volume 9 → online text (page 22 of 45)