enorfced, will ever put a stop to the pot, plume and bird skin hunters. As the farmers and cotton planters are the first to suffer, they should be the first to act. If all the grangers in the country insist that their Representatives in Congress unite to call up a bill that has been pending for six years it can be passed and a good work commenced in the way of protecting birds in those States that give them little o rno protection. The grangers should also insist that State laws be passed that will give ample protection to birds. Until the birds are restored the consumer can rest assured that he will be called upon to pay his share of the enormous damage caused by insect pests. HUMOR IN A TRAVEL BOOK. Don C. Seitz, whose "Elba and Elsewhere" was published a few weeks ago, has introduced the element of humor into travel books. Mr. Seitz among the elsewheres finds that: To impress genuineness the butter pats in Paris are stamped with the likeness of a cow. The tails of English shirts are about seven inches longer than those made in America. The usual Briton has a greater capacity for unexpressed thought than any other citizen in the world. In Germany the father is head of the house, in France the mother, in England the eldest son, and in America the daughter. BRIEF WRITING Briefs written, and search for authorities made, by lawyer of seven years experience in legal research and editorial work. Ample library facilities Refers, by permission to Professors W. M. Lile and Raleigh C. Address JAMES F. MINOR, P. O. Box 326, Charlottsville, Va. West Virginia Court of Appeals Decisions Handed Down at the Last Term REPORTED ESPECIALLY FOR THE BAR Appearing Here for the First Time in Print DEMPSEY, Admr., vs. NORFOLK & WESTERN RY. CO. 1. In considering a demurrer to evidence a proper test is whether the evidence would sustain a verdict for the party as to whose evidence the demurrer is entered, if one was returned by the jury and there was a motion to set it aside. If a verdict against the demurrant could not properly be set aside, there should be a judgment against him. 2. It is the duty of a locomotive engineer to look out for helpless trespassers on the track, so far as may be consistent with other duties of his position, and when he observes a child of irresponsible age on the track to take reasonable precaution for its safety. 3. It is negligence, binding the railway company, for a locomotive engineer, when his other duties do not demand attention and the situation permits a view, to fail to observe a child of irresponsible age walking by the side of the track and in dangerous proximity thereto, or, when he does observe it and has distance in which to stop, to undertake to run a rapidly moving train by such child in that position. CLARK vs. BEARD. Pocahontas County. Judgment Reversed. 1. Adverse possession between co-tenants. Some principles restated. 2. Vested title in land cannot be devested by mere parol disclaimer. The following writing does not do so. "This receipt is to show I have no interest in the 350 acres that Preston sold to Cherry River Company. This the 20th day of January, 1900. S. H. Clark." 3. The Supreme Court will pass on the weight and effect of oral evidence on a motion for a new trial when the justice of the case, in its opinion, demands it, though there be other ground of reversal. 1 MAXWELL, Trustee, vs. DAVIS TRUST CO et al. Robinson, Judge. A state court of competent jurisdiction may enforce actionable rights under the federal bankruptcy law, as well as may a federal court that also has jurisdiction in the premises. 2. Payments of money by a bankrupt to creditors, enabling them to obtain a greater percentage of their debts than other creditors of the same class, made within four months prior to the filing of the bankruptcy petition, constitute illegal and voidable preferences under the federal bankruptcy act, if the creditors receiving the payments have reasonable cause to believe that preferences are thereby intended. 3. A trustee in bankruptcy may sue in the courts of this state to recover money preferentially paid by a bankrupt to creditors contrary to the federal bankruptcy law. 4. When a trustee in bankruptcy resorts to the state court to recover money preferentially paid contrary to the bankruptcy law, the jurisdiction and practice are governed by the law of the state. 5. Equity does not have jurisdiction of cases in which the plaintiff has a full, complete, and adequate remedy at law, unless some peculiar feature of the case comes within the province of a court of equity. 6. A bill in equity by a trustee in bankruptcy does not lie to recover payments constituting preferences, when no ground of general equity jurisdiction is alleged, and no necessity for equitable relief is shown. The case is one for an action at law as for money had and received. HARMAN VS. ALT. Tucker County. Judgment Affirmed. Miller, Judge. 1. Disputed boundaries between adjoining tracts of land may be settled by express oral agreement, executed immediately, and accompanied by possession. 2. Actual, open, notorious, exclusive and continuous adverse possession of land for more than ten years, confers good legal title, enabling the owner to maintain an action for unlawful entry and detainer against one who enters unlawfully. 3 The rule that acquiescence or admissions by a landowner, made under a mistake as to his rights, will not estop him from subsequently enlarging his possession to the limits of his deed, does not apply as against one who has acquired good title by adverse possession. 4. If an entry on land, though peaceable, be unlawful, the owner may recover the possession from the intruder in an action of unlawful entry and detainer. WELCH LUMBER COMPANY vs. PAGETON LUMBER COMPANY. 1. If the distributable share of a cerditor, in a suit to wind up the affairs of a co-partnership, be less than the sum necessary to give jurisdiction, this court will not entertain his appeal from a decree denying him such distributive share. 2. Error, not apparent on the face of a commissioner's report, taken in connection with the pleadings, or which might be affected by extraneous evidence, will not be available as error in this court, unless the report has been excepted to on that ground in the court below. AILES et als. vs. HALLAM et als. 1. A deed, executed by a number of adjoining and neighboring property owners, in a community partially laid out in town lots, for the purpose of establishing certain roads for their common benefit, conveying the fee simple title of the strips of land constituting the roads to two of their number, and securing to the grantees and all the other parties thereto the right to use the roads "as a right of way for all purposes as completely as if they were a public street," confers upon all the parties thereto and their successors in title the right to free and wholly unobstructed use of such roads. 2. The terms of such a deed being plain and unequivocal and its purpose clear, the existence of gates on such roads at the date of the deed and the subsequent maintenance thereof, do not alter the construction by conduct. The rule of practical construction is not applicable to an unambiguous instrument. 3. Right to maintain a gate across a private way may be obtained by prescription. 4. A right of way vested in a number of adjoining and neighboring property owners makes them tenants in common of such way. 5. If one of such persons maintain a gate or gates across such a way without notice to his co-tenants of any claim of right to do so, his exercise of such privilege is deemed to have been permissive and not adverse. KERFOOT, Trustee, vs. DANDRIDGE et al. A decree, prematurely entered, pending exceptions to a commissioner's report undisposed of, and which does not finally adjudicate the controversies between the parties to the cause is interlocutory, and not appealable, and a subsequent decree disposing of such exceptions, and finally adjudicating all matters in controversy, brings with it, for review on appeal, all errors in the former decree. MYLIUS vs. RAINE-ANDREW LUMBER CO. Randolph County. Judgment Reversed; Verdict Set Aside and Case Remanded. Poffenbarger, Judge. 1. In the trial of an action, involving title to land, dependent upon the location of boundary lines and application of the title papers to their subject matter, it is not error to instruct the jury to give controlling influence to lines and corners marked upon the ground and identified, in so far as the lines were actually surveyed, and to courses and distances, in those instances in which the lines were not actually surveyed nor marked upon the ground. 2. It appearing that a large tract of land was subdivided into a number of lots and a plat thereof made, in accordance with which deeds were executed, and which is referred to in the deeds for the description of the lots, and that the exterior lines were only partially surveyed and only a few of the interior lines actually run, and there is inconsistency between the plat and some of the lines so surveyed, the court may properly instruct the jury that, in locating any lot, it is to be governed and controlled by the plat, except in so far as it is in conflict with the lines actually run and marked upon the ground. 3. Instructions to a jury must be broad enough in their scope and effect to present all material phases of the issue to which they relate. By whomsoever prepared, they are the instructions of the court, and, if they obviously tend to mislead the jury by reason of their narrowness, though correct as to one or more phases of the case developed by the evidence, it is error to give them. 4. On the trial of an issue to which there is conflict in the evidence, the instructions, if any, must submit the conflicting theories the evidence tends to prove. Presentation of one of them and silence as to the other are tantamount to a comment on the weight of the evidence. 5. Instructions confined to a subsidiary and inconclusive issue, founded upon the evidence, and ignoring the direct and vital issue, tend to mislead the jury and cannot properly be given. 6. If a deed contain 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, and false in that it applies wholly or partially to property not owned by the grantor, nor intended to be conveyed by him, but already owned by the grantee and not intended to be purchased by him, such latter description must be rejected as alse and as having been inserted in the deed by accident or mistake. 7. The construction of a deed, not dependent in any way upon extrinsic evidence, and also of a deed dependent upon extrinsic evidence, when the facts are undisputed, is a question for the court and not for the jury. |