SNEDEKER vs. RULONG. Marshall County Judgment Affirmed. Miller, Judge. 1. It is irregular for a contestant to institute contest proceedings before a will is offered for probate by some one desiring its probate: but if a proponent, after objecting, appears thereto, and offers evidence to establish the due execution of the will, and on appeal by the contestant, from the order or sentence of the county court, to the circuit court, again appears, and without objection there takes the affirmative of the issue, devisavit vel non, and there again offers the will for probate, he will in this court be treated as having waived his objection to the regularity of the proceedings begun in the county court, 2. If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the Jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory. 3. Undue Influence sufficient to overthrow a will will not be inferred from opportunity, suspicion, physical or even mental weakness, or from attachment or love for, or a desire to gratify the wishes of a beneficiary. It is necessary to show in addition that the free agency of the testator, at the time of the execution of the will, was overcome thereby. 4. Where a will is offered for probate, as a holographic, and on an issue devisavit vel non, the evidence is conflicting on the question whether the will was wholly written by the testator, and signed by him, the verdict of the jury will not be set aside, unless shown to have been influenced by fraud, bias, prejudice or corruption, or some other undue influence. STATE vs. BAKER et al. Cabell County. Affirmed. 1. The keeping of a common gaming-house is a misdemeanor at common law and, consequently, a violation of the law of this state. 2. That only those who gamble are admitted to the room where the gambling is carried on and the rest of the public are excluded therefrom, does not affect the crime. 3. The keeping of a common gaming-house is unlawful whether the gambling therein be lawful or unlawful. 4. It is not material that a common gaming-house should be kept for lucre or profit. 5. It is not essential to constitute the offence of keeping a common gaming-house that the gambling therein should be in view of the public, or that the public should be disturbed by noise therein. MCDERMITT vs. FORBES. Mason County. Reversed and Remanded. Williams, President. 1. If written evidence offered is excluded by the trial court, it should be made a part of the record by a bill of exceptions, if the party offering it desires to have the action of the trial court in excluding it reviewed on writ of error. 2. A special commissioner's deed, not recorded for as much as ten years, and unaccompanied by any portion of the record of the cause in which it purports to have been made, is not even prima facie evidence of title. 3. A plaintiff who has been in peaceable possession of land, and who is entered upon. and ousted by a mere intruder or trespasser having no semblance of right or claim to the land,may recover in ejectment without proof of legai title. 4. If the evidence upon a trial in ejectment is sufficient to warrant the jury in believing that defendant was a mere trespasser upon plaintiff's previous quiet possession of land, it is error for the court to direct a verdict for defendant, even though plaintiff has failed to prove legal title. MULLEN vs. COOK et als. Cabell County. Reversed and Remanded. Williams, President. 1. For a breach of contract to convey land, the vendor acting in good faith, the rule in Virginia and in West Virginia is, that the vendee can recover only the amount which he has paid, and interest thereon; and, if he has paid nothing, he can recover only nominal damages. But if the vendor has, since sale to vendee, voluntarily put it beyond his power to comply with his contract; or, if, having good title, he refuses to convey, he will be held liable in substantial damages; and in such case the measure is the market value of the land at the time of the breach, less the unpaid purchase money; and interest may be allowed on such sum from that time. 2. A declaration by a vendee, averring a breach of contract to convey land and alleging substantial and direct, or general, damages, is not demurrable because it states a method of measuring damages which may or may not be applicable on the trial. HARVEY COAL & COKE CO. vs. CHESAPEAKE & OHIO RY. CO. Fayette County. Judgment Reversed. New Trial Awarded. Miller, Judge. Judgment below reversed, verdict set aside, and a new trial awarded for want of sufficient evidence showing actionable negligence of defendant in killing plaintiff's mules. Applying Toudy vs. Norfolk & W. R. Co., 38 W. Va. 694, and Lovejoy vs. C. & O. Ry. Co., 41 W. Va. 693. HOFFMAN vs. SHOEMAKER. Mineral County. Decree Reversed; Injunction Dissolved; Bill Dis missed. Poffenbarger, Judge. 1 A judgment for the plaintiff in an action of trespass quare clausum fregit against a defendant, claiming a way over the premises on which the act of alleged trespass was done, is not conclusive of the right claimed by the defendant, unless it is shown to have been relieved upon by the latter as a defense and actually litigated in the action. 2. A grantor may claim a way over the granted premises, as reserved by implication, if it is shown to be strictly necessary to the use and enjoyment of adjacent land retained by him, and the intent to reserve it is not negatived by any express terms of the deed. 3. The legal principle, requiring an easement to be "continuous" as a requisite to a grant or reservation thereof by implication, is not applicable to a way. STATE vs. HARRIS. Poffenbarger, Judge. The general rule, inhibiting allowance of a new trial for matter constituting a principal cause of challenge to a juror, existing before the juror was elected and sworn, unknown to the complaining party until after verdict, not disclosed on a thorough voir dire examination, and undiscoverable by the exercise of ordinary diligence, unless it appears from the whole case that the complainant suffered injustice by reason of the disqualification; applies in criminal cases and to disqualification by reason of relationship to the prosecuting witness. Poffenbarger, J., dissenting. STATE vs. POE. Taylor County. Judgment Affirmed. Evidence that a person made a statement that he, and not the accused, committed the crime would not be admissible on a trial of accused, and therefore is not ground for a new trial. GOLDEN vs. O'CONNELL Greenbrier County. Decree Reversed, Case Remanded. Pending a chancery suit to enforce various liens against a debtor's land, some of the lienors holding first liens agree in writing that the debtor may sell a part of a tract in lots, the proceeds to go into the hands of a trustee to be applied on liens. Before decreeing the debts and sale of the balance of the debtor's land, the proceeds of such lot sales should be ascertained and the trust fund applied on the lien debts. HEAVNER vs. CITY OF ELKINS. Randolph County. Decree Affirmed. An assessment by a city upon lot owners for cost of paving a street is not contrary to Amendment 14 of the National Constitution, or Sction 10 of Article 3 of the State Constitution, either because the assessment is by the number of front feet of lots abutting on the street, or because there was no notice of such assessment to the lot owners. STATE vs. DURR. Randolph County. Judgment Reversed. 1. In defense of an indictment for selling intoxicating drinks, the article sold being labeled "Temperance Beer," the defendant has right to show that it is not intoxicating. 2. Upon trial of an indictment for selling intoxicating drinks, if the evidence show a sale of beer, the state has made a prima facie case for conviction, and need not give evidence that the beer is intoxicating; but the defendant may give evidence to prove that the beer sold is not intoxicating. CASTLE et als. vs. CASTLE et als. Preston County. Affirmed in Part and Reversed in Part. 1. The trial court has discretion in the matter of consolidating causes, and, to warrant a reversal of a decree on this ground, it must appear that such discretion has been misused to the prejudice of the party complaining. 2. It is error to decree costs in favor of one of the parties to a suit against another, in the face of a binding agreement between them that the suit should be dismissed without costs. 3. An appeal will lie to this court for such an error as to costs which have been made the subject of agreement, when the amount thereof exceeds one hundred dollars. J. W. ELLISON, SON & COMPANY vs. FLAT TOP GROCERY COM PANY. Mercer County. Judgment Affirmed. Brannon, Judge. 1. In case of a contract for the sale of 200 car loads of hay of given quality to be delivered and paid for in seventeen monthly installments of car loads running through a year, the purchaser generally has no right, after the contract has been partly executed, to rescind for defect of quality of some of the hay, but must recoup from the purchase money or sue for damages for such breach. 2. Where a purchaser of chattels has right to rescind the contract, for breach of it, the breach must be in a material matter. |