The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1914-06-20
BUSINESS BOOKED
is PAIR AMOUNT
and not conclusive as to any one. 1t
does not estop the state under code
1913. chapter 81, section 20.


Augir VS.. Warder ct all. Taylor
county, reversed and remanded.
Williams, judge.
/. In suit by material-man to
enforce his mechanics lien, brought
within six months after he has filed
his account in the clerks Office. the
bill may be amended after the ex-
piration of said six months for the
purpose OF making the contractor a
party. Such amendment does not
prejudice the owner of the property.
2. A bill in equity, proper in
other respects, signed by the plaintiff
in person. although not signed by
council, is good on demurrer.
3. Signing an affidavit appended
to bill, verifying its allegations
is a sufficient signing of the bill.
4. 1t is not necessary to issue a
formal summons against defendant
who is shown by affidavit filed with
the clerk to be nonresident.
Perry, Admir-, VS.. New River and
Pocahontas Consolidated Coal Co.,
Mcdowell county. affirmed. Robin
son, judge.
/. A declaration in an action by
an administrator for the wrongful
death Of his decedent, which fails to
aver the due appointment and quail
ification Of the plaintiff as admins
traitor, is insufficient on demurrer.
2. The overruling of demurrer
to an insufficient declaration is err
ror prejudicial to the defendant
which warrants the sustaining of a
motion to set aside verdict returned
for the plaintiff.
First National Bank OF Broadway
Virginia vs.. Cootes ct al, Hardy
county. Reversed and remanded.
Williams. judge.
!. This court will not dismiss an
appeal, as presenting only a moot
question. because defendant was
discharged in bankruptcy pending the
appeal.
2. To avail as a defense to a
pending suit in state court, sub
sequent discharge in bankruptcy
must be pleaded. This discharge
does not, ipso facto, GUST the state
court of jurisdiction to render judy
ment.
8. Being the cashier Of bank
does not disqualify a notary public
from taking an affidavit to be used
In an attachment suit brought to col
lect debt due his bank.
Dodge VS.. Brown and Hill. Ran
dolph county. judgment reversed
In part, affirmed in part, and case re-
manded. Miller, president.
/. The rule that an account rem
dered and retained an unreasonable
time without objection, becomes an
account stated, applicable as between
merchant and merchant, and princi-
pal and agent, is inapplicable to
monthly accounts rendered by one OF
the parties for money and goods ad-
vanced to the other pending the ex-
ecution by the order of a logging
contract. And at the completion of
such contract the party to whom
such accounts are so rendered Is not
estopped to dispute the correctness
of items therein not previously OBJ
jected to.
2. Where pending the execution
of such logging contract one OF the
parties thereto executes to the other
a deed of trust as security for
money and goods advanced, the par
ty holding such trust deed is not
chargeable in settlement with the
value of the property taken and sold
by the trustee. to pay balance due
him because of the claim of the trust
debtor for unliuuidated damages
sustained by breaches of the logging
contract by the trust creditor, such
logging contract not providing there
for.
3. In such cases the rule at law
and in equity that unliquidated
damages can not be set off against a
liquidated claim is applicable by an
alogy.
4. A judgment in favor of the
contractor in an action by the owner
to recover money advanced and not
expended on the work by the con-
tractor does not estop the owner
from suing to recover the expenee of
completing the work, after abandon
ment by the contractor. the causes OF
action being wholly different.
Z. Rulings of the trial court, re-
jecting offered evidence. not men
toned in any way as grounds OF the
motion for new trial, nor made
subjects of formal bills of exception,
will not be considered in the appel
late court as grounds for a new trial:
but, IL the verdict is set aside upon
other grounds, such rulings will be