Volume 1 — West Virginia Reports

Robert P. Steed sued out of the clerk’s office of the circuit court of Ritchie county, a summons of unlawful detainer, dated October 23d, 1863, and 1st year of the Commonwealth directed to the… Held: that in such description, there was clearly a want of the requisite convenient certainty. The Judge delivering the

On tlie 9tli day of September, 1861, William K. Pendleton brought an action of debt in tlie county court of Brooke, to recover from Joseph IT. Pendleton and Joseph W. Pendleton, two thousand dollars; on the same day he caused an attachment to issue from the same office, under the 1 sec. of chap. 151 of the Code of Virginia (1860), which was signed by “S. Gr.

Iliujh Stewart of Marshall county executed Ms last will and testament on tlie 8th day of February, 1858, in wliicb bo devised to his daughter Mary Ann and her husband William Douglas, a certain tract of .land in Marshall county containing ninety-nine acres and sixty-three poles, and in consideration of its being more valuable than any other share of his estate, subject among* others, to the following-charge, i. e.: “I devise that my wife Sarah Stewart live with my said…

Mary Marsh brought suit in the circuit court of Wood county in May, 1859, against William A. Tefft, for breach of marriage contract.

Stephen Mapel, assignee of Amos S. Boiolby, brought suit on the 17th day of August, 1859, in the county court of Monongalia county, against W. P. Lazzell, M. N. Pymer, J. 8. Ijazzell, Thos. Lazzell, and G. C. Lazzell, on a note dated November 6th, 185C, whereby they promised to pay to the order of said Bowlby, fifteen hundred dollars, with interest from date. The writ was executed on all the defendants except Pymer, who was returned by the sheriff, no inhabitant.

<p>1. W,, a member of the firm of W., S. & Co., retires by consent, and a new firm of D., S. & Co. receives the assets of the firm of W., S. & Co. A creditor of W., S. & Co- obtains a judgment against them for a debt contracted prior to the retiring of W., who together with a part of the co-partners, satisfy said judgment; \Y. seeks contribution from the partners not so aiding to satisfy. Hele :</p> <p>That he should first seek the assets of W., >S. & Co. received by D., S. & Ca., and if not sufficient to reimburse him, he is entitled to a contribution from the solvent co-partners of W., S. & Go.</p> <p>2. When a member of a co-partnership retires with consent of the remaining partners, they are bound to save him harmless, so far as the assets of the partnership will extend : b.ut no farther.</p>

This was an action 'of trespass on the case, brought, by William Sisk an infant who sued by George W. Sisk his next friend, in the county of Harrison. The suit was commenced in October, 1863, and was finally heard in the circuit court at the June term, 1864.

On tbe 29tb clay of May, 1855, Hobbs, Taylor Go., of tbe city of Wheeling, sued out of tbe clerk’s office of the circuit court of Ohio county an attachment against tbe steamboat “ Interchange” then navigating-tbe Ohio river, under tbe 5th section of chapter 151 of tbe code of Yirginia: alleging that they bad just cause of action against tbe owners of said' boat for tbe sum of 4,396 dollars and 80 cents, with interest and costs of protest.

On the 18th day of June, 1856, Parker B. Gookman made his certain note in writing promising to pay in one hundred and twenty days after date, to the order of Samuel IS. Gook-man two thousand dollars, negotiable and payable at the office of discount and deposit of the Exchange Bank of Virginia at Weston. The note was endorsed by Samuel E. Gookman, William M. Gookman and Jesse M. Post, and was discounted in the usual manner by the Bank at Weston.

<p>1. O. and McG. confessed a judgment in favor of W. for 500 dollars, interest and costs, subject however to sundry credits. Execution was issued thereon without enSorsing the credits. After a levy had been made, 0. and McG. gave notice to W. that they would move to quash the execution because no credits were endorsed, and hence itwas a variance from the judgment. Previous to any sale by the sheriff under the levy, the clerk who issued the execution endorsed the credits on it, and they wore allowed to O. and McG., by the sheriff, in the sale of the property and settlement of the execution. Held :</p> <p>1. No injury resulting to O.and McG. by the endorsement of the credits after the issuing of the execution, but on the contrary a benefit, it was error in the circuit court to quash for that reason.</p> <p>2. But the credits having been endorsed after notice given by 0. and McG. of motion to quash, they are entitled to the costs of their motion.</p>

John C Rathbone brought an action of trespass on the case in assumpsit, against the Baltimore and Ohio Railroad, in Wood county, in May, 1868.

In August, 1858, Theodore F. Hall, of Marietta, Ohio, being in tbe city of 'Wheeling, was 'employed by A. II. Detwiler of the firm of A. H. Detwiler Sg Co., which consisted of Francis R. Shipper, Isaac Detioiler and said A. II. Detioiler, to purchase wheat in the State of Ohio for said firm and forward it to them at Wheeling.

On tbe 23rd day of January, 1864, Hezekiah Hawkins sued out of the office of the clerk of the circuit court of Monon-galia county, a summons of unlawful detainer, directed to the sheriff of that county, commanding him to summon John M. Wilson to appear before the judge of the circuit court of said county, on the second day of the February term next ensuing, to answer the plaintiff of a plea that the defendant, Wilson, unlawfully detained from the plaintiff the possession of…

Rickard Parish brought a bill on the chancery side of the circuit court of Marion county, at the December rules, 1852, stating that about the 15th day of March, 1851, he purchased of one George Doions a tavern stand and lot of ground in Worthington, Marion county, for the price of 1400 dollars; 900 dollars whereof he paid in cash, and executed bonds for the payment of the residue as follows: 200 dollars due April 1st, 1852, 200 dollars April 1st, 1858, and 100 dollars April…

This was an. action of trespass brought by the defendant in error, John M. Kochnlein, in the circuit court of Ohio county, against the… Held: that he was properly ruled into trial. See also, the opinion of judge Daniel in Spangler vs. Davy, 15 Gratt. 384-5, in which he says, “when we take into consideration the further fact, that the plaintiff in error has already been indulged with iioo continuances of the cause, the fair conclusion is, that if he has lost the benefit of…

In February, 18(?0, Alexander Snider brought Ms action of assumpsit against Eugenios Newbrau in the county court of Monongalia.

O. W. Caldwell, of Brooke comity, gave notice on the 21st day of November, 1864, to James Uervey, prosecuting attorney for that county, that he would move the circuit court at the November term ensuing, for the appointment of a commissioner to take possession of, collect and administer the estate of Alexander Campbell, Jr., an eñemy of the State of West Virginia; and that Campbell had estate consisting of land and other property in the county of Brooke.

J. JEdgar Boyers, Secretary of State of West Virginia filed his petition in the circuit court of Ohio county on the 18th day of March, 1864, alleging that be bad been, prior to tbo first day of October, 1863, duly elected to the office of Secretary of State; that be bad faithfully discharged tbe duties thereof; that on the first day of January, 18.64, there was due him on account of services in said office 325 dollars; and that he had, on the 4th day of January, 1864,…

In June, 1860, C. Buchanan, road surveyor in magisterial district No. 6, road district No. 2, Marshall county, brought suit before J. G. McM.an.away, an alderman and ex officio a justice of tbe peace in tbe city of Wheeling, Ohio county, against Josiah Ingersoll, wbo was a resident of that city, in a plea of debt for 12 dollars and 50 cents, on account of road tax assessed by BucJtcman on land owned by Ingersoll in said magisterial and road districts in Marshall county.

John Williams, a citizen of Brooke county in tbe State of Virginia, died testate in said county in February, 1845, seized of 280 acres of land in that county.

On the 25th day of July, William Todd instituted an action of trover and conversion in the circuit court of Ohio county, against Isaac Kelley, Aaron Kelley and A. Wilson Kelley; and filed Ms declaration at the rules on the last Tuesday of the same month, claiming that he was, on the 15th day of July, 1864, lawfully possessed of 2,000 dozen sheaves of wheat and casually lost the same; and that the same came to the defendant’s possession on that day £y finding, &c. The…

William Jones and Mary Jones, Ms wife, exhibited a bill in chancery in the circuit court of Kanawha county, at the May rules, 1864, alleging that the female complainant was formerly the wife of James WiUdnson; that WiUdnson during his lifetime had been part owner of the Kanawha Mewring Mill, situated in Charleston; that in the year 1859 he had sold out his interest to William J. Hand, another part owner, who had immediately re-sold to one Solomon Minsher and took his…

John Maxioell sued out of tbe clerk’s office of Marion county, a writ of trespass on the ease in trover and conversion, on the 19th day of November, 1861, against Mortimer H. Johnson, William Hood,… Held: that trespass cannot be joined with case (of which trover is one species,) because they are two distinct things and of different natures, and the judgments are different, the judgment in trespass being- quod capiatur and in trespass on the case quod sit in misericordia. 2.

A. W. Denmead Son, partners in trade and machinists in tbe city of 'Wheeling, filed a bill in chancery in the circuit-court of Ohio county, at the August rules, 1859, against Michael Herr Abraham H. Herr, partners under the firm of Michael Herr ^ Oo., alleging that on the 5th day of July, 1856, they commenced the furnishing of certain materials to be used in the erection of certain distillery buildings in Wheeling, for the defendants, according to a contract previously made;…

George, Me Oulloch obtained a decree in the circuit court of Tyler county, at the fall term, 1844, against George Lefever, for 140 dollars and 50 cents, and the court ordered tbe sale of a tract of land, lying on Middle Island OreeJc, containing 100 acres, in discharge of the decree. At the sale McCulloch became the purchaser, and at the spring term, 1845, it was confirmed and the commissioner ordered to convey the land, which he did by deed dated June 2nd, 1845.

This was an appeal from tbe decree oí tbe circuit court of Ohio county. Tbe facts are substantially stated in tbe opinion of tbe judge deciding it. Tbe deed referred to, tbe incompleteness of wbicb be states to be sufficient ground for reversing tbe decree, was dated November 16tb, 1869, and purported to be “between Thomas Thornburg of tbe first part and tbe Hempjield Railroad Company of tbe second part.” It was signed tbus, “Witness tbe following signature and seal.

Charles J. Faulkner applied at the bar of this court to be admitted to practice herein without taking the oath† prescribed by the legislature, November 16th, 1863, claiming that an attorney at law was not an officer within the meaning of that act.

William Stratton, of Logan county, applied to tbis court for a writ of peremptory mandamus to tbe judge of tbe 8tb circuit to compel bim to allow tbe applicant to qualify as clerk of tbe circuit court of that county, without taking tbe oatb prescribed for officers by tbe act of November 16,1863; alleging that be bad been duly elected to tbat office.

Tbe Hempfield Railroad Company was incorporated by the legislature of Pennsylvania in 1850, to construct a railroad through the territory of that State from a point on the Pennsylvania Central'* Railroad near Greensburg in Westmoreland county, to the western boundary of Donegal township, in Washington county. † Under this law, the company was organized as a Pennsylvania corporation.

Thb grand jury of Wood county, on the 17th day of October 1864, found a bill of indictment against Daniel Grogan, Thomas Boiee and Mortimer Gibbony alias Mortimer Gibney alias George Smith, for the murder of one Abraham Deem.

This ease was tried at the September term, 1865, of .the circuit court of Lewis county. Hoover was indicted for the larceny of a grey mare, the property of one Owen Mulvey, Jr., in the county of Lewis. There was no evidence produced on the trial that the offense was committed within the jurisdiction of the circuit court of that county.

Tbe grand jury at tbe September term, 1865, of tbe circuit court of Upshur county, found a bill of indictment against Jonathan Moody and John Koons, charging, in tbe first count, that on the 10th day of September, 1865, the prisoners made an assault upon one Jackson Clark, and felo-niously put him in bodily fear, and then and there violently and against his will did steal, take and carry away from hia person six twenty dollar United States notes of the value of 120 dollars;…