8. The rule requiring a claimant under an inclusive grant, to show that the land in controversy lies without the boundaries of the land excepted from the grant, as having been previously surveyed. as well as within the boundaries of the grant, has no application, if the grant has been subsequently forfeited for non-entry for taxation and sold in a judicial proceeding, at the instance of a commissioner of forfeited and delinquent lands, as a whole, and without exception of any portion thereof, and it does not appear that the excepted lands were granted between the date of the inclusive grant and the date of the commissioner's deed.

9. By virtue of the provisions of section 19 of chapter 105 of the Code of 1906, a deed made, by a commissioner of forfeited and delinquent lands, under such judicial proceeding, constitutes a new grant by the state, passing to the grantee all right and title of the state to the land, whether held by reason of its never having been previously granted, or its subsequent acquisition by forfeiture or purchase.

10. Deeds made by commissioners of school lands, ineffectual to pass title to waste and unappropriated lands, for want of legislative authority to dispose of them in the manner in which forfeited lands were sold, are validated by section 19 of chapter 105 of the Code of 1906.

11. The opinion of a surveyor as to the true location of a boundary line is inadmissible as evidence.

12. If, in an action involving title to land, admissions and conduct of one of the parties, relating to locations and boundary lines, are relied upon, it is not error to permit him to introduce an agreement with a third party, concerning the land, which tends to nullify the effect of such admissions and conduct.

KIRTLEY vs. COUNTY COURT.

Cabell County. Reversed, Judgment here and remanded.
Robinson, Judge.

1. A county court has no warrant in law to order that a land owner be proceeded against by a suit for condemnation of a right of way for a proposed road through his land, and later to order that a road be built thereon, without first giving him notice to appear and show cause against the road undertaking.

2. Proceedings of a county court for the establishment of a road, had without notice to the owner of the land proposed to be taken as prescribed by Code 1906, ch. 43, sec. 36, and in which no opportunity was afforded him to be heard before an order directing a condemnation suit against his land, are erroneous, illegal, and reversible.

3. An order of a county court made at a special session is a mere nullity if the record does not show that the court acquired jurisdiction to make the order by the promulgation of the notice of the special session as required by law and the inclusion in that notice of the subject to which the order pertains.

Section 16 of chapter 6 of the Acts of the Legislature, passed at the extraordinary session of 1908, creating a criminal court for the county of Mingo, provides the manner of obtaining an appeal or writ of error to the circuit court of said county from the judgment of the criminal court, and concludes as follows: "Provided, however, not such appeal, writ of error or supersedeas to said court shall be allowed unless the petition therefor be presented in six months from the date of such judgment on order." HELD:

1. The circuit court has no power to award a writ of error to a judgment of said criminal court unless application therefor be made within six months from the date of the judgment.

2. It is not error for the circuit court to dismiss a writ of error which had been awarded by the judge in vacation more than six months after the date of the judgment of said criminal court.

3. This court cannot review the judgment and rulings of said criminal court when the writ of error to the circuit court was not applied for in time, or when it was properly dismissed after it had been awarded too late.

1. The county court is the sole judge of how much land is necessary for court house purposes; and, if it has acquired more than is requisite or desirable for that purpose, it may dispose of the surplus.

2. The county court has the discretion to dispose of such surplus ground to the United States government, for the purpose of a government building, at a less price than could be realized by a sale thereof to individuals for private use.

3. A deed conveying land to a county court for court house purposes which provides that the judicial proceedings for the county shall be held upon the premises, but which does not expressly provide that the title shall revert in case the land should cease to be so used, does not amount to a restriction upon the right of alienation by the county court.

HEARN vs. McDONALD.

Mercer County. Decree Affirmed.
Brannon, Judge.

In an action for destruction of a roof the measure of damages is the value of the roof, that is, what it would cost to replace it new, less an allowance for depreciation from use, age or like cause.

COLLINS VS. WHITE OAK FUEL CO.

Fayette County. Reversed, Verdict Reinstated and Judgment for

Plaintiff,

Poffenbarger, Judge.

1. A proceeding by motion for judgment on a forthcoming bond, being informal in character, is not subject to the technical rules of common law pleading and practice.

2. The last clause of section 7 of chapter 121 of the Code of 1906, providing that defense to such actions may be made in the same manner and to the same extent as in actions at law, is merely permissive, not mandatory; and informal pleas, giving reasonable notice of the matters relied upon for defense, are sufficient.

3. Failure of the record in such an action to show a joinder of issue, or the disclosure of a technical misjoinder of issue, is not cause for setting aside a verdict, if the claims and defenses of the parties have been set out in informal pleadings with reasonable certainty and the trial has proceeded as if formal issues had been made

up.

4. A provision in a coal mining lease for suspension of a minimum royalty clause or exemption therefrom so long as a "fault" in existence in the mine, contact with which occasioned such exemptiou clause, should be a hindrance and obstacle to the successful operation of the mine, and for resumption of the minimum royalty after the “fault” had been pierced and the normal vein recovered, exempts from such royalty on account of hindrance and obstruction only at the place at which the fault had been encountered at the date of the agreement and does not extend to later and other separate and distinct obstructions by the same fault or others.

5. Under such a clause, the words "pierced" and "recovered" mean more than a mere breach of the fault and discovery of the coal on the opposite side; but, if the immediate obstacle has been overcome, the main entry put in condition for successful operation and, together with side entries, carried into the body of the coal for several hundred feet, encountering the same obstacle or others in some of the entries, but none in others, it is for the jury to say whether the fault has been overcome within the meaning of these terms.

6. If the evidence adduced under one of two defenses to an action goes to the entire demand and tends to defeat it wholly, and the evidence adduced under the other does not extend to the entire demand and tends only to reduce the amount thereof, it is not error to give a binding instruction applicable to the first of said defenses only, if it properly submits that defense upon the evidence.

AUSTIN MANUFACTURING COMPANY vs. COFFMAN.
Mercer County. Judgment Affirmed.
Brannon, Judge.

A written contract cannot be added to or contradicted by oral evidence of different stipulation.

CASSIDAY FORK BOOM AND LUMBER CO. vs. TERRY, Trustee.

Randolph County. Reversed and Remanded.

Poffenbarger, Judge

1. In a suit in equity, the object of which is to establish a constructive trust in land, founded upon an alleged fraudulent conveyance, made by a corporation, the fact that the deed of the corporation was delivered in consideration of money paid to, or a debt due from, the president of the corporation, without proof of want of consideration moving from the president to the corporation, is not notice of an equitable title to the land, so conveyed, in a third party.

2. That one of two deeds, contemporaneously delivered to the same grantee, subsequently turned out to have been forged, and was canceled as a forged deed, is not alone evidence of fraud on the part of the grantee in the acceptance of the other deed, or of knowledge, on his part, of fraudulent intent, on the part of the grantor or his agent, in executing and delivering the same.

3. When a claim to protection as a bona fide purchaser for value and without notice is involved, the burden is on the party denying the validity of the purchase, to prove notice of his equity, and, upon the other party, to prove good faith and payment of an adequate consideration.

4. If the property in question in such case has been purchased along with numerous other pieces of property for a lump sum, the purchaser is not denied protection because he is unable to show that a specific price was fixed upon the property in controversy, if he proves payment of an adequate consideration for all the property included in the purchase.

5. A decree pronounced upon the pleadings and evidence, as made up and filed in the court below, will not be reversed for failure of a defendant, examined as a witness in another state, to answer questions propounded to him, if it appears that he has submitted to an examination, answered many of the questions, substantially covering the case, but declined to answer others, claiming he is not bound to do so, and no ruling of the court below, respecting his duty to answer, has been asked for or taken, and he has had no opportunity to answer them after an adverse ruling on his objections thereto. By submitting the case, without having made an attempt to obtain answers to the questions, the plaintiff is deemed to have waived any rights he may have had respecting them.

6. The principle of law making notice to an agent bind his principal, applies in the case of a purchase of property through an agent, in violation of an equitable title thereto, or right respecting it, in a third party; and, if the agent with such notice purchases the property for his principal, the latter holds the title in trust for such third person.

7. Proof of an express contract of agency is not essential to the

establishment of the relation. It may be inferred from facts and circumstances, including conduct.

8. The law does not inhibit agency for both parties to a contract.

9. A bill against a purchaser of land who has acquired it by an agent, on the thecry of a purchase, in violation of an equitable right in the plaintiff, known to the agent at the time of the purchase, need not aver notice to the principal by or through the agent. It suffices to charge notice of the right generally.

SPENCER vs. RICKARD.

Mason County. Affirmed.
Robinson, Judge.

1. It is proper to permit a return of service to be amended according to the fact, in proceedings of the case which attack the validity of the judgment on the ground of an insufficient return, though the amendment defeats the proceedings.

2. An insufficient return of service on the summons to answer an action may be amended, on a motion to quash an execution issued on a default judgment therein, notwithstanding the defendant appeared specially in the action and unsuccessfully sought to quash the return.

NATIONAL BANK OF WESTON vs. LYNCH et al.
Gilmer County. Judgment Reversed, New Trial Awarded.
Miller, Judge.

1. A declaration may be amended, in form, or in substance, so long as the identity of the cause of action is preserved.

2. The right to plead usury,and to have the issue thereon tried by a jury, as provided by section 6, chapter 96, Code 1906, to a substantive right, of which a defendant can not be deprived.

3. In an action by a National Bank against the maker of a note, defendant has the right, by sections 5197 and 5198, Revised Statutes of the United States, to reduce the amount of the recovery by the amount of usurious interest which the note bears on its face, or which is included and carried therein; but he cannot offset usurious interest actually paid; his remedy for illegal interest actually paid being by action under said section 5198, to recover back twice the amount actually paid.

CLINE vs. NORFOLK & WESTERN RAILWAY COMPANY.
McDowell County. Judgment Affirmed.
Brannon, Judge.

If a railroad company make a fill or embankment along a stream which changes the channel and current, and thus cause land of a riparian owner across the stream to be washed away, it is liable for the damage, and is not exempt from liability by the authority conferred on it by the state to build its road.