Volume 12 — West Virginia Reports

Supersedeas to a judgment of the circuit court of the county of Ritchie, rendered on the 30th day of April 1874, in a certain action of ejectment then in said court pending in which Cyrus Hall was plaintiff, and Moses S. Hall was defendant. The supersedeas was allowed upon the petition of defendant below. 1.

An appeal from, and supersedeas to a decree of the circuit court of Hitchie county, rendered on the 28th day of April 1876, in a chancery cause in said court then pending, wherein A. W. Zickefoose- was plaintiff, and S. E. Kuykendall was defendant, granted upon the petition of said plaintiff, below.

<p>Appeal from an order of the circuit court of Ohio county, made on the 9th day of November 1875, dissolving an injunction entered theretofore in a cause in chancery wherein the city of Wheeling was plaintiff, and William Campbell and others were defendants.</p> <p>referred the Court to the following authorities:</p> <p>Dillon on Mun. Corp., see 252, 518, 520, 521; O’Oon-now. Pitts., 18 Pa. 189; People v. Carpenter, 2 Doug. (Mieh.) 273; Wood on Nuisances, see 252; 28 N. Y. 398; 23 Vt. 92; 28 Vt. 448; 36 Barb. 303; 1 How. PI. Cr. 408; Wood on Nuisance, 243, 812, 840; Cross v. Mayor, &o., 18 N. J. Eq. 311; Drygest v. Sehenoh, 23 Wend. 448; Jersey City v. State, 1 Vroom 527; Simmons v. Connell, 1 Bhd. 519; 58 Pa. 263; 16 S. & B. 390; 2 Watts. 23; 9 Casey 202; 3 Barr 202; 3 Phil. 368; 4 Martin (La.) 1; 1 Whart. 469 ; 3 Pa. (Pen and Watts.) 253; 1 Beal (N. J.) 547; 2 Gray 161; 4 Cush. 276 ; 52 Pa. 400.</p> <p>The following statement of the case was furnished by Johnson, Judge :</p> <p>On the 11th day of September 1875 the city of Wheeling presented to the judge of the circuit court of Ohio county its bill.in chancery, alleging, by acts of the General Assembly of Virginia, the incorporation of the town of Wheeling, &c., and the act of the said General Assembly, incorporating the city of Wheeling in 1836, and the act of January 29, 1824, authorizing the county court of Ohio county to appoint five commissioners, any three of whom might act, whose duty it should be, “to ascertain by actual survey the true divisions, metes and bounds of all such streets, walks, alleys and lots, in the said town of Wheeling, as by an order of the mayor and commonalty they shall be directed to survey and mark, and shall make, or cause to be made a correct plat of said survey so made, and the same shall sign with their own proper hands and seals, and lodge in the clerk’s office of the county court of Ohio county, there to be recorded; which return and survey, so duly made and recorded, shall in all future lit-igations concerning such boundaries, streets, walks, alleys and lots, be deemed, held and taken, as full evidence and conclusive between tbe parties, from and after the 1st day 1835; “that the county court did make such order, and appointed five commissioners to make such survey . an¿| mayor and commonalty of the town of "Wheeling also made tbe order required by said act, both of which orders are exhibited with the bill; and that four of .said commissioners did in every respect, as required by said act, make such survey and plat, and that such plat was recorded; that by the several sections of the act incorporating the city of Wheeling it was provided, that “all the real and personal estate, and all the funds, rights, titles, taxes, credits, and claims, and rights of action of the mayor and commonalty of the town of Wheeling, and of the several additions to said town, enclosed within the bounds aforesaid, or which are held in trust, or have been appropriated for the use or benefit of the said mayor and commonalty, or the inhabitants of said town, or of any of the said additions, shall be and the same are hereby transferred to, and vested in the said city of Wheeling;” that in that portion of the said town of Wheeling now known as the Second ward of the city of Wheeling, there was a street laid out by the proprietors of the land, extending from the Ohio river eastwardly crossing Main, Market, Fourth and Fifth streets, to or near the top of the hill; said street was called Madison street, and by the said act of the proprietors of the land, was dedicated to the public use, and has been used as a public street, by the inhabitants of said town and city of Wheeling, from the time of its dedication; that by the survey made by said commissioners the said Madison street, now Tenth street, was ascertained to be sixty-six feet wide from the river to the top of the hill; that the said city is the owner of the land within the boundaries of the said street; that by the 45th section of the charter of the city of Wheeling, “the council shall have authority within said city to lay out and cause to be opened any streets, walks, alleys, market grounds and public squares, or to extend or widen the same, first having obtained the title to the ground necessary for that purpose, and to graduate any street, walk, alley, market ground or public square; which is or shall be established within said city, to pave or otherwise improve the -same, to cause them to be kept open and in good repair, and generally to ordain and enforce such regulations respecting the same, or any of them, as shall be proper for the health, interests, or convenience of the inhabitants of said city.”</p> <p>The bill charges, that one William S. Campbell trustee for Theodosia McGinnis, and said Theodosia McGinnis, claim the right to erect a wall upon and extending into the south side of said Madison (now Tenth) street, at or, near the intersection of said street with Market street, a distance over the true line of about twenty-one inches, and extending along, and on the said street, over the line about twenty-one inches for forty feet, and so claiming have contracted with John A. Armstrong, Alexander Coen and J. B. Armstong, partners as Armstrong, Coen & Co., for the erection of a building or wall for a building, forty feet long, and on Madison, (now Tenth) street, and upon and over the south line thereof twenty-one inches for their own private use; that said parties or some other persons unknown to plaintiff, employed by defendants, have commenced digging, and have dug into the said street and have laid a foundation wall for the said building, which wall extends over the true south line of said Madison (now Tenth) street twenty-one inches for forty feet along said street, against the consent and protest of the city of Wheeling; that said erection will cause an obstruction in said street and will prevent the inhabitants of said city from using that portion of said street occupied by said wall, or building, and will constitute a public nuisance, and will cause a very great loss and injury to the said city of Wheeling and its inhabitants, and will defeat the purpose of the the proprietors, who dedicated the said land to the inhabitants of said town of Wheeling for a street; and that the injury so done will be irreparable. The prayer of the bill is, that said parties named as causing said obstruction be enjoined and restrained from erecting, or causing to be erected, the wall or building before mentioned, on or upon said Madison (now Tenth) street, until the further order of the court; and that upon the final hearing of the cause the injunction be made perpetual; and for general relief. The bill is duly sworn to.</p> <p>The injunction was by the judge of said court granted on said 11th September 1875 as prayed for; and process duly issued with the injunction endorsed thereon was served on all the defendants.</p> <p>The following is the plat referred to in- the report of commissioners who made the survey, and which was recorded on the 20th September 1870:</p> <p> </p> <p>The defendants, William S. Campbell, and Theodosia hdcG-innis, at November rules 1875 filed their answer to the bill; the substance of which is as follows: they a(}mit commissioners were appointed by the county court, as alleged in the bill, and that they made the survey and plat, as in said bill set forth, and that said plat is recorded in the office of the clerk of the county court; but they aver that said plat was not recorded in said clerk’s office until 1870, and that it is of no legal force or effect, as evidence of the boundaries, of the streets within the city of Wheeling, because it was not recorded in said office before the year 1835; and they deny that the paper filed by the complainant as “Exhibit 3” is a true copy of any part of said plat; they admit that in the Second ward of said city” there is a street formely called Madison street, and now called Tenth street, extending from the Ohio river eastwardly, crossing Main and Market streets, which has been for a long time used as a public street by the inhabitants of'the town and city of Wheeling, but they do not know whether tlie ground,- over which said street passes, was ever dedicated by the owners to the town or city of Wheeling, and they do not admit that it was so dedicated, but ask that the complainant be required to prove such dedication; but they allege that no part of the ground, upon which they are building, as hereinafter stated, was'ever so dedicated, or was ever used by the inhabitants of said town or city as a public street; these defendants deny that said street was ascertained by said commissioners to be sixty-sixty feet in width, and they allege that the width of said street was never legally ascertained and established;” they admit they contracted with the parties named in the bill for the erection of a house on Tenth street, and that the said contractors had built the foundation wall for said building; but they deny that said foundation wall extends over the true south line of said Tenth street twenty-one inches; they say they own in fee the lot of ground on Tenth street on which said wall is built, and that said lot has a front on Market street of twenty-nine feet, and extends along Tenth street seventy-two feet. Then follows a number of conveyances: the first from John McLure and wife on the 4th day of November 1847, of said lot to Christian Kammer and William Guelfas. On the 13th of September 1849 Guelfas and wife conveyed their undivided half to said Kammer; on the 14th January 1852 said Kam-mer conveyed said lot to C. Elias Stifel, in trust to secure a debt of $700.00, due to John Louis Stifel; on the 12th ' day of February 1864, the said trustee, after selling the land at public auction, conveyed it to William S. Campbell, trustee for Theodosia McGinnis and Clarissa Campbell; and on the 29th day of December 1874, the legal heirs of the said Clarissa Campbell conveyed to Theodosia McGinnis all their title to said lot. They say they are the owners in fee of said lot, and that they and those under whom they claim “have been in continuous anduninterrupted 'posession of said lot since the year 1847, and have held such posession adversely to said complainant and all other persons, and these defendants still hold such possession; that said complainant has not during the said period claimed any right or title to the said lot, or to any part thereof-, that in the year 1831 when the said property belonged to the said John McLure, a frame building was erected thereon by the said McLure, which frame building stood so erected, without removal or change of position, from that time until the year 1872, when a portion of the said frame building, on the rear part of said lot, was torn down by these defendants, and a brick building was by them erected in its place and upon the same ground occupied by it;” that in the month of June 1875, the defendants tore down the remaining portion of said frame building, and have erected the foundation wall for a new brick building, which they are erecting in its place, and on exactly the same ground formerly occupied by it, and as an addition to the rear building so erected by them in 1872. They say that the building, they are now erecting, is according to a plan of which the said rear building is a Part;> an(3 if they are compelled to change the location of the wall, tbey will be obliged to change their entire plan of the building, and the rear building will be compara-tjve]y useless^ and they will suffer severe loss and damage &c : and they pray that the injunction be dissolved and the bill dismissed. The answer is also sworn to.</p> <p>Copies of the several deeds referred to in the answers are filed therewith, and the description of the property is substantially the same in all of them. In the first from John McLure and wife to Kammer, the description is as follows:</p> <p>“Beginning at the south corner of Madison street and east of Market street, thence south with Market street, twenty nine feet, more or less, to the frame house now owned and occupied by Samuel G. Bobinson; thence toward the east, parallel with Madison street, seventy-two feet; thence parallel with Market to Madison and thence with Madison street to the place of beginning.”</p> <p> The city proved clearly that the said frame house stood, and the foundation wall for the new house now stands twenty one-inches over the line of and on Madison (now Tenth) street. </p> <p> And the defendants as clearly proved, that the old frame house had stood where the wall now is, continuously and uninterruptedly, for over forty years prior to the institution of this suit. </p> <p>On the 9th day of November 1875, the case was heard on the bill, answers, proofs and motion to dissolve and the circuit court dissolved the injunction.</p> <p>From this order an appeal was granted.</p>

Appeal granted upon the petition of Charles P. Bailey to a final decree of the circuit court of the county of Wood, rendered on the 5th day of October 1869, in a cause in chancery in said court then pending, in which John Gillespie and wife were plaintiffs, and said Charles P. Bailey and others were defendants.

An appeal from and supersedeas to a decree of the circuit court of Wood county, rendered at the June term 1876, of said court, in a cause in chancery, in which George W. Anderson was * plaintiff, and First National Bank of Parkersburg and Julia H. Nagle were defendants, granted upon the petition of said Julia H. Nagle.

Supersedeas granted upon the petition of Isaac Miller, to a judgment and order of the circuit court of Ohio county, made on the 31st day of January 1876, setting aside a verdict rendered, and granting a new trial in a certain action of assumpsit then pending in said court, in which the said Isaac Miller, who sued for himself and for the use of Luther E. Magee, David McConnell and L. 'V. Applegate, owners of the steamboat “ Wash.

An appeal with supersedeas, granted upon the petition of Jonathan H. Lockwood, from a decree of the circuit court of the county of Marshall, rendered on the 9th day of January 1874, in a cause in chancery then pending in said court, in which William H. Biggs was plaintiff, and said Jonathan H. Lockwood was defendant. This cause is a bill for a specific performance of a contract for the sale of real estate.

Fleming, administrator de bonis non of Robert Linn deceased, was plaintiff, and John W. F. Holt, C. B. Conrad and John Webb were defendants, granted upon the petition of said John W. F. Holt. The Hon. James Monroe Jackson, judge of the fifth judicial circuit, rendered the decree complained of.

An appeal granted upon the petition of Milton C. Atherton, to a decree of the circuit court of the county of Tucker, rendered at the March terra thereof, in the year 1869, in a cause in chancery then in said court pending, in which said Atherton and Samuel Woods were plaintiffs, and Beauchamp G. Hull and others were defendants.

Writ of error and supersedeas granted upon the petition of John Hughes, Andrew S. Cole and others, defendants, in a certain action of ejectment instituted against them, in the circuit court of the county of Ritchie, by Thomas Campbell and other infants, suing by their next friend, Catharine Campbell. The case is fully stated in the opinion of the Court. referred to the following authorities : 1 Minor’s Inst. 432; ] Rob.

<p>Appeal from, and supersedeas to, several decrees of the circuit court of the county of Marshall, pronounced in a cause in chancery, in said circuit court, in which Maria Ogle was plaintiff and Washington Adams was defendant, granted upon the petition of said Adams.</p> <p>The case is fully stated in the opinion of the Court.</p>

Davis, committee of William H. Woodyard, was plaintiff, and Charles T. Demming, John S. Burdett and J. E. Sharp were defendants, allowed upon the petition of said plaintiff. Green, President, who delivered the opinion of the Court, prepared the following statement of the case: On the first Monday in June 1869 William H. Wood-yard filed his bill in chancery against Charles T. Dem-ming, John S. Burdett and J. E. Sharp in the circuit court of Wood county.

A judgment was rendered by the circuit court of Ka-nawha county, on the 8th day oí April 1870, in favor J°hn Carlon against James S. O. Brooks, N. S. Brooks, Lewis Bufíner and others, in an action of. debt then ¡lending in said court, in which said Carlon was plaintiff.

An appeal with supersedeas, to two orders made, one in term time, on 8th May 1873, and the other in chambers, on 1st day of September 1873, dissolving injunctions awarded to the plaintiff in a cause in chancery, pending in* tbe circuit court of the county of Wirt, wherein the Pithole Creek Petroleum Company was plaintiff, and William Bittenhouse and others were defendants.

An appeal, with supersedeas, allowed upon petition of of Enos Myers, to a decree of the circuit court of Mon-ongalia county rendered on the 24lh day of September, 1874, in a cause in chancery in which Enos Myers was plaintiff, and Jacob Myers and others were originally defendants, and which had theretofore been before the Supreme Court of Appeals, and reversed with costs, in favor of the said defendants below, who thereupon issued a soire.facias to revive the decree of the…

Supersedeas, granted upon the petition of Francis Marion Brookover, to a judgment of the circuit court of Monongalia county, rendered on the 18th day of March, 1875, in a proceeding of bastardy, wherein Mary Cath-arine Tennant, a woman under the age of twenty-one years, was plaintiff, and said Brookover was defendant.

Appeal, with supersedeas, granted upon the petition of John Reid, administrator de bonis non with the will an-' nexed of William O. Reid, deceased, to a decree of the circuit court of Ohio county, rendered on the 8th day of July, 1876, in a cause in chancery then in said court pending, in which Mary Ann Jones was plaintiff and said John Reid, administrator as aforesaid, Robert James Reid and others were defendants.

Appeal with supersedeas granfed upon tbe petition of Edwin J. Amiss and Francis Henderson, to a decree of tbe circuit court of Raleigh county, rendered on tbe 1 Lth day of October, 1875, in a cause in chancery then in said court pending, wherein said Amiss and others were plaintiffs, and Pyrrhus McGinnis and others were defendants. The case is fully stated in the opinion of the Court.

An appeal granted upon the petition of Charles L. Rofie, from decrees of the circuit court of the county of Cabell, rendered in a chancery cause in-said court, wherein K,. H. Hartley & Co. and others were plaintiffs, and said Charles L. Koffe was defendant. A sufficient statement of the case is given in the opinion of the Court.

An appeal, granted upon tbe petition of Christopher Hoke, Jr., in his own right, and as executor of Christopher Hoke, Sr., to a decree of the circuit court of Greenbrier county, rendered on the 21st day of Novem-; ber, 1874, in a cause in chancery then in said court pending, wherein said Christopher Hoke, Jr., as such executor, and in his own right, was plaintiff, and John-M. Hoke and others, heirs and devisees of Christopher Hoke, Sr., deceased, were defendants.

Supersedeas allowed upon the petition of the Central Land Company of West Virginia, to a judgment of the circuit court of Cabell county, rendered on the 12th day of June, 1874, in an action at law in said court then pending, wherein H. T. Douglass was plaintiff, and the said Central Land Company of West Virginia, was defendant. The Hon. Evermont Ward, Judge of the ninth judicial circuit, rendered the judgment below.

Supersedeas, granted upon the petition of Lafayette Bryant and Joseph W. Stevens, to a judgment of the circuit court of Greenbrier county, entered on the 15th day of June, 1876, in an action of unlawful detainer in which William T. Mann and others were plaintiffs, and said Byrant and Stevens were defendants. GjseeN, PRESIDENT, furnishes the following statement of the ease: Thisjwas an action of unlawful detainer, instituted in the circuit court of Greenbrier, by Wm.

Supersedeas, allowed upon tbe petition of tbe Kanawha and Ohio Coal Company, to a judgment of tbe circuit court of Kanawba county, rendered on tbe 25tb day of November, 1874, in a suit at law instituted in said court against said company by Jobn Anderson.

Upon the petition of Robert Patton and wife, an appeal from, and supersedeas to, several decrees of the circuit court of Kanawha county, rendered in a cause in which Nicholas Smith and wife were plaintiffs, and said Patton and wife, and Albert G. Pendleton, were defendants,were allowed by the court: The following statement of the case is furnished by GREEN, PRESIDENT.

An appeal from a decree of the circuit court of Green-brier county, rendered on the 22d day of June, 1876, in three causes, in said court then pending, which were heard together; in the first of which John Callaghan’s admin- ® ^ ® istrator, was plaintiff and Daniel Circle was defendant; 7 1 in the second Daniel Circle’s executor was plaintiff and John Callaghan’s administrator was defendant; and in the third George Alphin was plaintiff, and Daniel Circle’s executor! and…

Appeal with supersedeas, granted upon the petition of William and Martha Rice, by John L. Knight their guardian ad litem, to a decree of the circuit court of Pleasants county, entered on the 5th of April, 1876, in a cause in whicb J. M. Stephenson was plaintiff, and Josephus Eice and others were defendants.

An appeal from and supersedeas to a decree of the circuit court of Kanawha county, rendered on the 17th day of December, 1873, allowed upon the petition of the Merchants’ Bank of Charleston, in a cause in chancery, in which O. A. Patton, trustee, and others were plaintiffs, and said Merchants’ Bank and others were defendants. The facts sufficiently appear in the opinion of the Court. referred to the following authorities: Adams Eq. 176 and note; 1 Story’s Eq.

An appeal from, and supersedeas to, a decree of tbe circuit court of Greenbrier county, rendered on the 23rd day of June, 1877, allowed upon tbe petition of Thomas L. Feamster and S. W. N. Feamster, in a cause in chancery, in which the said Thomas L. Feamster and S. W. N. Feamster, were plaintiffs, and James Withrow, trustee, and others were defendants. The facts sufficiently appear in the opinion of the Court. cited the following authorities : 9 W. Va. 314; 3 Paige 117.

An appeal from a decree of the circuit court of Kana-wha county, rendered on the 18th day of December, 1876, in a cause in chancery, in which John J. Shonk was plaintiff, and Edward B. Knight and William S'. Laidley, trustees, were defendants, granted on petition of John J. Shonk.

A supersedeas to a judgment of the circuit court of Jackson county, rendered on the 21st day of July, 1875, inau action of debt, in which G. S.'M. King was plaintiff, and J. M. Burdett and others were defendants, granted on the petition of the defendants below.

A supersedeas to a judgment of the circuit court of Cabell county, rendered on the 19th day of December, 1873, in an action of assumpsit, in which J. E. Winkler was plaintiff, and the Chesapeake and Ohio Eailroad Company was defendant, granted on the petition of the said Chesapeake and Ohio Railroad Company.

Supersedeas to a judgment, rendered by the circuit court of Kanawha county, on the 11th day of December, 1874, in an action in debt, in which Philip W. Morgan, sheriff, for the use of Hezekiah Scott, was plaintiff, and J. P. Hale, Isaac N. Smith and Charles C. Lewis were defendants, granted on the petition of said defendants.

<p>Appeal from, and supersedeas to a decree of the circuit court of Lewis county, rendered on the 26th day of July, 1875, in a cause in chancery in which James P. Cole was plaintiff, and fm. Moxley was defendant, granted on the petition of James P. Cole.</p> <p>Johnson, Judge, furnishes the following statement of the case:</p> <p>At rules held in the clerk’s office of the circuit court of Lewis county, in December, 1871, Jas. P. Cole filed his bill in chancery against William Moxley, which was substantially as follows : that one W. P. Francis had become a mail contractor for carrying 'the mail on route No. 4192, from Weston, in the county of Lewis, to Nicholas Court House, for four years, terminating July 1, 1871, at the price of $990.00 per annum. The said contract was for a weekly service, going to and returning from Nicholas Court House. About the 1st of January, 1869, the said Francis sold the benefit of his contract for carrying said mail, with all its profits and obligations, to the plaintiff and the defendant, who were to perform all the service required of the said Francis. In consideration of the advantages of said contract, the plaintiff and defendant jointly paid to the said Francis the sum of $300.00 in money, and a horse of the value of $50.00; and thereupon the said plaintiff and defendant were to be jointly entitled to all the pay and allowances for carrying said mail, to be drawn from the United States government for said services. The said plaintiff and defendant employed mail carriers, and furnished horses on which to carry the said mail from the time of the said contract with said Francis, until about the 15th of May, 1870, when the said defendant took entire control of said contract, refusing to allow the plaintiff to participate in the services or profits of said partnership; but the plaintiff protested against such refusal, and averred his readiness to fulfill and perform any and all acts necessary or 'proper to be done under said contract of partnership. But the defendant refused to allow the plaintiff to participate therein, and assumed the sole control oí said contract, and received all the money arising therefrom. On the 1st day of February, 1870, the contract was changed by the Postoffice Department of the United States, and the services were increased to two trips per week, on that part of the route between Weston and Braxton Court House; and the pay was increased by $545.77 per annum. This additional service was performed under the partnership aforesaid, which the plaintiff avers was performed and consummated at the time plaintiff and defendant entered into the contract for carrying said mails ; and the consideration having been jointly paid, the partnership could not be dissolved without the consent of the contracting parties; and therefore continued in force until July 1, 1871. The plaintiff prayed that as the partnership had terminated by limitation, the partnership accounts between them be settled before a commissioner of the court; and prayed for general relief. The defendant not answering, the court on the 6th day of March, 1872, referred the cause to one of the master commissioners of the court, who was directed “to examine, state and settle the partnership of the said plaintiff and defendant, and make report thereof to the court, with any matters specially stated deemed pertinent by himself, or which may be required by either of the parties to be so stated ; and if deemed necessary by the commissioner, leave is hereby given him to examine the parties on their oaths, upon proper interrogatories, filed by either of the parties, or upon such interrogatories as he may propound, if any be deemed necessary by him.”</p> <p>The defendant appeared before the commissioner, and examined and cross-examined witnesses, and at the very last moment when the cause was submitted, more than three and one-half years after rhe bill was filed, he filed his answer, to which the complainant replied generally.</p> <p>The answer is as follows :</p> <p>“ For answer the defendant says, he denies the allegation of the bill, that said Cole and this defendant purchased jointly, from W. P. Francis, the contract for carrying the mail on the route from Weston to Nicholas Court House. About the 1st of March, 1869, this defendant alone, on his own responsibility, and not in connection with Cole, purchased from Francis the benefit of said contract for the remainder of the contract-period expiring on the 1st of July, 1871. This defendant incurred the obligations and perils'of said purchase by giving bond in a large penalty, with security furnished by him to said Francis, for the faithful performance of the contract, in which bond said Cole was no party.</p> <p>“At this time said Cole and this defendant, were together owners of a lot of horses and vehicles engaged in partnership livery business. After such purchase this defendant proposed to Cole to help carry the mail while they should be engaged together in the livery business, if he would pay this defendant half of what he agreed to pay Francis for said contract, and pay half the expenses, and undergo half the obligations throughout. With this understanding they did carry the mail with their livery horses together until 14th May, 1870. About 1st May, 1870, said Cole himself proposed to this defendant that they should discontinue their livery partnership by one or the other selling his share in the stock to the other, or dividing the same, and cease to do business together. The result of their conferences was that about 1st of May, 1870, they divided their horses, vehicles and other livery stock, each taking his share, and Cole took his from the stable of the plaintiff, where the business had been carried on, to another stable of his own, and engaged in the livery business alone. Thus ended their whole connection. If these facts constituted them in law partners in the mail service, then they were partners; but this defendant being the sub-contractor, regarded said Colo rather in the 'light of his agent in the performance of the mail service, in so far as he acted therein. This partnership, if it was such, had at no time any definite, fixed period of duration, but as . the defendant contends was only at will, and dissolvable at the pleasure of either party, and at most it could not continue beyond the continuance of said joint livery business. Moreover said Cole' acted improperly towards the defendant in said matter, in taking and seeking to take into his custody receipts for money paid for expenses incurred in carrying the mail, and other papers relative thereto, and not submitting, but excluding them from the inspection of this defendant.</p> <p>“After said Cole and this defendant had dissolved their partnership in the livery business, and divided their stock as above stated, said Cole, without any just authority, attempted to take sole control and management of said mail service, and to exclude and prevent this defendant carrying on or having anything to do with it. And with this object, about 15th of May, 1870, notified the postmaster at Weston that he, Cole, would in future carry the mail, and that he, the postmaster, must not deliver the same to this defendant. Under these circumstances, and deeming their connection dissolved, this .defendant, under the decision of said postmaster that he was entitled as sub-contractor to receive the mail, did carry the mail from Monday, May 16, 1870, until the expiration of the contract on 1st July, 1871, at his own expense, without any aid or assistance from Cole. The profits in said business throughout were little or nothing. This defendant agreed to pay said Francis for said contract $350.00. He paid $50.00 of it in a horse belonging to him and said Cole jointly; the residue was paid by this defendant. It is true Cole paid $150.00 in discharge of a note in bank given by defendant to raise money to pay Francis, but the money so paid by Cole was derived from the Postoffice Department for carrying the mail, half of which belonged to the defendant, so that Cole never paid but $100.00 of what the defendant agreed to pay Francis. Under the terms of the contract with Francis though the defendant was to carry from the 1st of March, 1869, his pay was not to commence until 1st April.. For the first quarter this defendant received pay and settled it with Cole ; for the two next quarters, Cole received pay and made a settlement thereof with this defendant, but for the next quarter Cole drew the pay, amounting to at least $315.00, which he retained, converted to his own use, never settled with this defendant for it, and this defendant never received any part thereof. And' so the defendant charges that said Cole is in fact indebted to him a balance on account of said mail business, and if this court should deem The relation between the said Cole and this defendant in said business a partnership and entertain jurisdiction of this cause, to which jurisdiction the defendant excepts, he prays that in such case a decree be entered against said Cole in favor of this defendant for such balance.”</p> <p>The defendant’s deposition before the commissioner is as follows:</p> <p>“Answer to 1st interrogatory. — For answer, the defendant says that about the 1st of January, 1869, as well as he remembers, ho purchased from William P. Francis the contract for carrying the mail on said route until the 1st of July, 1871. This purchase was by the defendant solely, and in his own name, and said Cole was unknown in the purchase. After such purchase, the defendant proposed to Cole to help carry said mail while they were in partnership in the livery business, (which livery partnership then existed) provided said Cole would pay half of the price which Moxley agreed to pay Francis, and undergo half the expense and obligations throughout.* Cole agreed to this, and they did together carry the mail until about the 15th of May, 1870. This defendant paid Francis $350.00 for said contract, of whicli $50.00 were paid in a horse belonging' jointly to " the plaintiff and defendant, and I paid $300.00, and the plaintiff paid $150.00 in bank on a note given by the defendant to the bank for the purpose of raising money to pay Francis for the mail contract. But this $150.00 so paid by Cole, was money drawn by him from the Postoffice Department as compensation for carrying,the mail on said route, half of it belonging to the defendant and the other half to the plaintiff. So the defendant claims that the plaintiff never paid but $100.00 on said purchase from Francis. The plaintiff and defendant carried the mail together from the 1st of January, 1869, to the 14th May, 1870 — the defendant carrying the mail for the rest of the contract terminating on 1st of July, 1871, alone at his own expense, and without any aid or assistance from Cole, the plaintiff. The contract price for carrying the mail was $990.00 per annum, but the service having been increased, the compensation was also increased by the addition of about $530.00 per annum. About the 1st of April, 1870, during the time the plaintiff and defendant carried the mail together, small deductions were made from this compensation by the Postoffice Department for failure of trips. The amount of such deductions the defendant cannot give. Under the contract with Francis, the mail was to be carried for a certain time, about one month and a half the defendant thinks, and said Francis was to receive the compensation for that time, and for this time the plaintiff and defendant received no compensation. For a time Francis, the contractor, drew the compensation for carrying the mail, paid it to me, and I settled and paid to the plaintiff his part; then Francis empowered A. C. Holt and the plaintiff to- draw the money. They accordingly drew pay for carrying the mail under said power from Francis, and the money went into the hands of the plaintiff as the defendant understands. The plaintiff settled and divided with the defendant the pay for two quarters, but for the last quarter of their joint service, the said plaintiff drew tbe money — some from tbe postoffice — amount not known to tbe defend-' ant, and through tbe bank tbe sum of $805.00, and some cents, for which said plaintiff has never accounted or settled with the defendant. The defendant cannot state the expenses incident to the said service, as they were incurred at many points and in many ways along the route and no regular books or accounts thereof were kept.”</p> <p>This is all the defendant says upon the subject of partnership.</p> <p>The plaintiff's deposition on the same subject is as follows :</p> <p>. “About the 1st of March, 1869, Mr. Francis proposed selling the carrying of the mail from Weston to Nicholas Court House, to different persons. Moxley and myself had been talking about buying it, and about that time Moxley told me that he had bought such carrying of the mail from said Francis for $300.00, and a horse belonging to the livery stable kept by said Moxley and myself in partnership, which horse was a partnership horse. He told me that he was to give Francis the horse and $50.00 that evening, aud called on me for one-half of the money, to-wit: $25.00, $10.00 of which I paid at that time, and paid him $15.00 more a day or two afterwards; of the balance of the money paid to said Francis for said letting of the mail, $150.00 was raised by a loan from the bank on a note of H. G. Ford, endorsed by William Moxley, the defendant, A. Williams, and myself, and the remaining $100.00 was paid by a note which Francis owed said Ford, or Ford & Butcher, I do not remember which. When the note in bank became due, I borrowed the money from A. C. Hale and paid the note. Dennison had been a subcontractor under Francis, and after we purchased Francis out, we carried the mail for the two last weeks in March for Dennison without compensation, as part of the original consideration. Our pay did not commence until the 1st of April, 1869, and from that time until the 15th of May, 1870, we carried the mail in partnei’ship between said places. On Monday, the 16th of May, 1870, I believe, it being my week to carry the mail, I called at the postoffice for it, when the postmaster told me that both Moxley and Francis had notified him not to give me the mail any more and refused to give it to me. I was then, and at any and all times thereafter, ready and willing to perform the full measure in the undertaking between us as partners. The mail was continued to be carried under the superintendance and control of the said Moxley until the 1st of July, 1871. Our partnership being coupled with an interest on my part I was unwilling to dissolve it, for by reason of the increased compensation, the profits were considerably greater, for by a letter by the Postoffice Department, dated January 27, 1870, the service was increased to two trips per week between Weston and Braxton Court House, for which there was allowed $545.77 additional pay per an-num, which was to take effect on the 1st day of February, 1870. The compensation for the first quarter, from April to July, 1869, was drawn by me and devoted to the payment of the expenses on the route in part, and the note in bank referred to heretofore, and what was not so used was divided between us. The October and January installments were collected by me, and after paying the expenses of carrying the mail, the residue was divided between myself and the said Moxley. The April installment of 1870, the check amounting to $305.32, was drawn on June 4th, 1870. I offered the said Mox-ley half of this check as soon as I drew it, but he refused to take it. I then paid out of this amount the majority of all the bills against us on the route from January, 1870, to the 10th of June, 1870.' For the quarter ending July 1st, 1870, I collected on duplicate receipts from postmasters on the route, $10.00 or $11.00, the exact amount I cannot remember. Mr. Moxley and myself adjusted our accounts up to the 1st of January, 1870, and from that time the accounts remain unsettled.</p> <p>CROSS-EXAMINED.</p> <p>1st interrogatory, by the defendant. — Do you not remember that on the day Moxley purchased the contract from Francis, that Moxley stated to you that he had bought the mail route, and had to pay Francis $50.00 down, and had only $40.00, and asked from you the loan of $10.00, and that you gave him the $10.00, and he asked you to go down to the bar-room to witness the contract, and that you did so ?</p> <p>Answer to 1st interrogatory. — He, Moxley, came to me and told me that he had purchased the contract from Francis, and that he was to give him $50.00, and the livery horse before mentioned, and called on me for $25.00. I gave him $10.00, as I had no more at the time, and a day or two days afterwards, I gave him the remaining $15.00.</p> <p>2d interrogatory, by defendant. — Did you ever see the note you speak of as being from Francis to Ford, or Ford & Butcher ?</p> <p>Answer to 2d interrogatory. — I think I saw it, but I would not be positive.</p> <p>3d interrogatory, by defendant. — Do you not know that Francis was indebted to Butcher & Ford for rent, and in the sum of $105.00, and [that Moxley, as part payment to Francis for the mail contract, gave his individual note to Ford & Butcher for said debt?</p> <p>Answer to 3d interrogatory. — I understood that Francis was indebted to them for rent, and that they transferred that debt to Moxley, who made use of it as part pay on the purchase of the contract from Francis.</p> <p>4th interrogatory, by defendant. — Did you ever pay any part of the consideration for which Ford & Butcher transferred to Moxley their debt on Francis ?</p> <p>Answer to 4th interrogatory. — I never paid any of the principal, but I paid interest on $50.00 for one hundred and twenty days in bank, and interest on $75.00 for sixty days in bank.</p> <p>5th interrogatory, by defendant. — Did Moxiey give Francis a bond for the faithful performance of the contract for carrying the mail, and did you join in the same or not ?</p> <p>Answer to 5th interrogatory. — He never asked me to join him in such a bond, and I never did; I suppose he gave it.</p> <p>Cole, the plaintiff, being again examined, he was questioned by the defendant, and was also examined for himself as follows:</p> <p>Question by defendant. — Had not you and Moxiey, by an arrangement between you, been carrying the mail alternate weeks ? And was not the week commencing on said 16th of May, 1870, Moxley’s week for carrying the mail?</p> <p>Answer. — Yes ; it was.</p> <p>Question by defendant. — Do you remember that after we- dissolved partnership in the livery business, I remarked to you that neither of us had horses enough alone to carry the mail, and that I offered to let you carry the mail with me week about?</p> <p>Answer. — "We divided the livery stock about one month after we first began to carry the mail; had three or four horses' each after the division, and we furnished a horse, week about to carry said mail. Don’t remember that Moxiey ever made any remark to me that neither of us had horses enough alone to carry the mail. Either one of us had horses sufficient for the purpose.</p> <p>Question by defendant. — Did you not, on the day you have spoken of meeting Moxiey at the postoffice, have a horse and carrier at said office in Weston, and did you not demand the mail of the postmaster, to be carried with the horse and carrier you so had at the postoffice ? And did you not object to Moxiey or his carrier having the mail that day ?</p> <p>Answer. — Yes; the carrier and my horse were at said postoffice on that day by my order. I claimed that the mail should be delivered to the carrier who was then there with my horse at the postoffice. I did object to the carrier Mosley had there having the mail, because the' carrier I had there had been sent for, and had been here three or four days.</p> <p>Question by defendant. — On the morning of the day you and Moxley met at the postoffice, each claiming possession of the mail, did not Barnes, the postmaster, decline to deliver it to either of you, as you were both contesting the right to the possession of it, until one or the other of us should show that he was entitled to it by lawful right? And did not A. A. Lewis and Jesse Woof-ter, who were my securities in the bond given by me as sub-contractor to W. P. Francis, contractor, appear and make it known to said postmaster that Moxley was subcontractor, and they his sureties, and thereupon the postmaster delivered the mail to me ?</p> <p>Answer. — The postmaster, Barnes, did not deliver the mail to Moxley until said Lewis and Woofter, his sureties, appeared and stated that they had gone on a bond with Moxley to Francis for carrying the mail, and thereupon said postmaster did deliver the mail to Moxley. The said postmaster, of course, did refuse to deliver said mail to either of us until Lewis and Woofter appeared and stated as aforesaid.</p> <p>Question by complainant’s counsel. — State whether there was anything in the terms of your partnership with Moxley at the time it was entered into, which forbid either partner from performing the entire duty appertaining to the service ?</p> <p>Answer. — There was not. Each party was to perform equal service, share equally in profits, or contribute equally to losses.</p> <p>Question by complainant’s counsel. — After the dissolution of the partnership in the livery stable, state whether you agreed with Moxley as to the manner of performing the mail service, and what that manner was.</p> <p>Answer. — We did agree as to the manner of such service, and it was this: Each one of us was to furnish big own horse, and carry the mail week about.</p> <p>Question by complainant’s counsel. — After this agree- ' ment, in the event Moxley had failed to carry the mail any week, would you not have felt constrained in fulfilment of your original agreement to have performed that service yourself?</p> <p>Answer — I would.</p> <p>Question by complainant’s counsel. — State whether under the terms of your partnership you were not authorized to employ mail carriers, and whether you did not so employ a mail carrier; and if so, when ?</p> <p>Answer. — It was understood between Moxley and myself that no one should carry the mail unless he was satisfactory to both parties.. I employed a carrier from Jane Lew, which Moxley agreed to before he was sent for. It was in May, 1870.</p> <p>Question by complainant’s counsel. — What became of the party you employed from Jane Lew to carry said mail? And state whether upon Moxley’s subsequent disapproval of him, the difficulty did not occur on the 16th May, 1870, heretofore spoken of by you?</p> <p>Answer. — I paid him for the time he had been here, and he went back to Jane Lew on the following morning. The difficulty between Moxley and myself at the postoffice, on said 16th May, 1870, arose out of employing said party from Jane Lew, and Moxley’s disapproval of him.</p> <p>Question by complainant’s counsel. — Take the two papers here following:</p> <p>“Weston, W. Va., May 13, 1870.</p> <p>“Received of J. P. Cole $7.50 for carrying the mail</p> <p>“P. B. Lamb.</p> <p>“May 13,1870.”</p> <p>“Mr. James Cole:</p> <p>“Please settle your half with Peter Lamb. I have settled my half.</p> <p>“William Moxley.”</p> <p>And state whether they are genuine, and whether you paid the money mentioned in the receipt of Lamb.</p> <p>Answer. — They are genuine, and I did pay the money mentioned in Lamb’s receipt.</p> <p>A. C. Hale testified, that Cole and Mosley dissolved partnership in the livery business, in May, 1869, as he thought.</p> <p>W. S. Kennedy testified, that he was a mail rider for Cole & Moxley, and that the most of the time that he was employed for them, was before the increased service and pay, and a part of the time afterwards.</p> <p>The evidence showed that there was a dispute between them about the 16th of May, 1870, and both tried to get sole possession of the whole business, and Moxley having given the bond, the postmaster delivered the mail to him.</p> <p>Jesse Woofter testified, that he understood from both parties, that they were partners in carrying the mail.</p> <p>The account was taken by master commissioner, G. J. Butcher, and he made two statements, one based on the theory, that the partnership was dissolved, on the 16th day of May, 1870, in which case he found, that upon a settlement, as of the 30th day of January, 1874, Cole, was indebted to Moxley, in the sum of $180.24. The other statement was based on the theory, that the partnership, was to extend to the end of the contract of Francis, to-wit, the 1st July, 1871, and that it was dissolved then by limitation, on settlement as of the 30th January, 1874, the defendant, William Moxley was indebted to the plaintiff, J. P. Cole in the sum of $133.11. The commissioner, made liberal allowance to Moxley for use of horses, &c. Moxley did not except to the report of the commissioner at all, but Cole did except to the statement oply, based on the theory, that the partnership was dissolved on the 16th day of May, 1870.</p> <p>On the 26th day of July, 1875, the cause was heard “ on the bill, answer of defendant, general replication thereto, report of commissioner G. J. Butcher, plaintiff's exception to said report, depositions, and former 'orders and procedings;” on consideration whereof the court overruled the plaintiff’s exception to said report, and confirmed the report “ except its statement finding the sum of $133.11 as due from defendant to plaintiff on the 30th day of January, 1874, and decreed that the plaintiff pay to the defendant the sum of $193.44, being the sum of $180.24, with interest on the principal, $147.82, from the 30th of January, 1874, to the date of the decree, but gave no costs; and leave was given to sue out execution on said decree.</p> <p>From and to said decree an appeal and supersedeas was granted.</p>

Supersedeas to an order of the circuit court of Kana-wha county, entered on the 18th day of June, 1873, in a motion to set aside a judgment rendered theretofore in said court, against Charles C. Capehart in favor of Samuel Benedict. The motion was made by Stephen P. Capehart, administrator of Charles C. Capehart against John S. Cunningham, administrator of Samuel Benedict, deceased.

<p>Appeal from and supersedeas to a decree of the circuit court of Ohio county, rendered on the 15th day of No-' vember, 1873, in a cause in chancery, in which August Weidebusch was the plaintiff, and Herman Hartenstein and others were defendants, granted on the petition of the said Weidebusch.</p> <p>The facts of the case sufficiently appear in the opinion of the Court:</p>

Supersedeas to a judgment of the circuit court of Marion county, rendered on the 30th day of April, 1874, in an action in debt, in which Theodore S. Bantz & Co., suing as assignees of Jonathan H. Haymond, were plaintiffs, and Philip S. Basnett was defendant, allowed upon the petition of said defendant.