The times. [volume] (Richmond, Va.) 1890-1903, 1897-07-29

90 pass upon IT'S tc-tF o..
Crav's case. % Va. ~; Union Cent. L'
ms ca MS. Pollard. &C S. +. r. ~; Shii-
dress Administrators vs. - anu -
road Company. IBID a. ..,,,,,,s
D Enclosed lands are lands sur IDui'o,I
Nv fence. and a fence - Nis'Die ~
tangible obstruction when may p1
100 ditch wall or q frame OF Woou'
90 any limo OF obstacle interposeo pc
49,, Two portions OF land so as 10 par
on and shut IN the land ana So. ,5-,oh
Is private property. Porter vs. ~
90 Vt. 32j: BiggerstaH US. 81. e., rc-.
and ~ Railway Conlh"N
TAYLOR VS.. Welbey So WIS. ~ .,urood
Where a statute requires ran 80, 49,,
.l..,,,',,iee IN fence their tracks aions
-,,-ipsod or cultivated fields. 1t is h.s
.,l,oes,rv that I'm order 20 be enu,ieu W.
~, nrotoctiou. the enclosure or a.,
Flids ebouId be by lawful fences GU -i''
Imam VS.. stearns. Upon petition ~
49, Rohoaring denied. opinion ny
Judge Keith presidenO. T.. .,o lac,
Nils case was summarized IN the ''''
appeal, FROM JUSTICES COURT,
Combs VS. Commonwealth AM Hi1N'
Orfnion by Judge keith lpresnenV'
Cou,bs was convicted on June laJ 10y
,,,eirtr,te NJ selling whiskey without a
license and was sentenced 90 sixty days
I'm lain and a fine OF 500. lie was com
,,ittcd ~ fail. and or June lltn applen
Cor and got an appeal from the sumo
in.tice The County Court held that me
~rnoal not having been taken at ,"'
time az the trial nor until az le'7l n."s
dave thereafter. he must bcsTecon'ih1'Ieu
10 Jan, and writ Of error
,r,o question is whether under Section
4f07 an appeal may be allowed by JUS
tice 90 a judgment rendered by MN uh'er
Section 4l0i.
Hold. THE duty imposed on tho Justice
by Section 4i07 IS mandatory. enc pits
oner has FREQ and untrammeied rlSnt
OF appeal. and unless Jet to BAH shaH ne
committed 90 iail. and the witnesses
recognized TO appear 80 the next term
of tho court. % which the appeal lies.
This duty OF recognizing the witnesses
would be incapable Of performance, eX-
coDt az the time Of the rendition OF the
judgment appealed from.
LEGAL SURVEY.
S. w. Virginia Mineral Co. VS.. Chase.
Amended and Affirmed. Opinion by Judge
Buchanan.
Chase authorized. I'm writing an agent
10 sell his lands. which were afterwards
bought by plaintiff I'm error Meantime
Chase had sold some 10 walnut trees
thereon, and had notified agent that they
would not pass with the land. Purchas-
ers learned through abstract Of title OF
sale OF the trees, and were also informed
of it by Chase. Deed made without re-
serving trees. and notes given for de-
forrcd payments i'm land without demand
ing any abatement First note paid Sec
ond extended. when pressed for payment
several years later abatement demand Il
for shortage OF land, and credit for other
items. but none for trees tin after this
suit brought I'm 1892. though. having fun
knowledge AN the while that the trees
had been sold TO other parties
Held: Good faith and fair dealing re-
QuIred that demand for abatement. II
made. should have been made before exc
cutting notes for the land knowing the
trees had been sold to other parties and
that Chase did not intend TO sell and
could not convey them rs conduct then
and afterwards showed that 70 waived
objection 10 tho sale. and the demand
nearly five years afterwards was an after
thought.
g. Objection that decree was rendered
against company before amount OF over
tapping tito was asccrtained There
ought 10 have been q release deed filed.
or the extent o. the overlap asccrtaincd
before decree Of sale was rendered. Re-
cord shows such release deed was sub
sclueutly filed. and that the overlap was
only about a half acre-a case where tho
ma&im de minimi3 tx non curat applies.
=. The decree providing that commits
sioncr OF sale should execute his bond be-
foer Jhe clerk of Wise instead of the clerl,
OF Russell county where the suit was
pending was am interiOcutOry decree only
q = ne la
p.y 10 the Circuit Court for the correc-
zion OF ibis error-no doubt mere over
sight Being iuterl1cutory this court viii
amend the decree IN that respect. John
son, trustee VS.. Wagner & Son, e. Va.
$50 592, Price VS. Thrash. 80 Graft. SIS.
53s
D. The accurate and legal mode OF sur
vCyns land IS by horizontal measurement.
ana in the absence of am express a-ree-
ment it would seem that it must be sur
veved boy that method. Code soc. sl5.
a local custom or usage cannot be relied
on where Inconsistent with the terms OF
written contract nor IN conflict with
WEI, settled rules OF law. ? Minors Inst.
lCjl. Smiths leading cases. gi5. and note
where many cases are cited.
g. a usage may be established by one
winess where it appears that he has flll
hI.Nif lrAHf anu l'tAH fAIlfilNllNt Oh INC
subject about which he speaks, and tes-
titles explicitly 10 the duration and uni
versatility OF the usage and IS not contra
dictod. Robinson We. T.. 3. Is Wall 1853:
Jones VS. Hoey. rs Mass. 5S4: 1 Greenl.
sec 200 (a) and note There IS nothing
in the record TO show that the witness
relied ON here had such knowledge or ex-
perience. nor does he prove an established
usage. general ana notorious In the local.
iw. Eanshr0ugh, EXtr We Neal Feath-
erstoue * co. decided az this term.
ULTRA WIRES.
Augsburg H. g. L. 20. VS. Pepper. Re
versed Opinion by Judge Rely.
This was a case of falling Land Com
rany which tried 20 adjust its debts. and
au the stockholders except Pepper and
one or two others had agreed 10 take
back thcr lands no purchase price. give
uD their stock and receive the amount OF
money they had paid IN, and bound them
selves 90 share pro rata tho conpany's
Indebtedness. Tho stockholders ratified
this settlement. end continued the COM
mittee lthe president end secretary in
the hope that Pepper would come 10 the
same terms Pepper prepared con-
tract-the one sought to be enforced
here-which was signed by him and such
committee lie contends they signed not
as a committee. but by authority and d.
rectiOn OF the Board OF Directors, that II
was a final agreement and was so in
tended-which contention is not sustained.