Volume 2 — West Virginia Reports

This was an action of debt brought in Harrison county, on the 16th day of February, 1860, by John Wilson, Jr. for the use and benefit of Josiah D. Wilson, against Alsiorpheus Werninf/er, Richard Fowkes and Cyrus,Ross. The declaration was filed at the March rules following. It alleged that defendants owed the plaintiff 6,000 dollars, the amount of an injunction bond by them given, on the enjoining of two judgments against Werninger in favor of the plaintiff.

On the 1st day of February, 1855, Hugh Nichols, Abijah Johnston and James M. Todd, of the city of Wheeling, entered into articles of co-partnership under the name of J. M. Todd Co. to carry on the business of an iron mill.

Jonathan U. Haymond executed a note to Thomas F. Con-aioay on the 25th day of February 1861, payable four months after date, negotiable and payable at the Fairmont Bank, in Marian county, in Baltimore funds. Conaioay endorsed the same to Fhoch P. Fiteh, who endorsed it to Shipley, Poane §■ Co., merchants of the city of Baltimore. The note not being paid at maturity was protested, and was paid off by Shipley.

Mary Lewis filed a bill in tbe circuit court of Wood county in April, 1865, alleging that in June, 1856, one Báward W. Lewis executed to Stephen G. Shaw, trustee, a deed of trust to secure the oratrix in the payment of 1,500 dollars with intererest from November, 1858; the trust embraced twTo lots of land designated as “part of out lot No. 14” and “lot No 6 in Harris’ addition,” in the town of Parkersburg; that in 1859 the lots were returned delinquent for the non-payment of…

The only question in this case is fully presented in the opinion of judge Loomis, which was concurred in and became the judgment of the court.

At tbe June term, 1835, of tlie county court of Preston county, tlie will of John Jenkins was proven and admitted to record. It contained tlie following clause, among others,- and which gave rise to this suit: “ Thirdly.

John Cooper filed a bill in chancery in the circuit court of Raleigh county at September rules 1860, alleging that in 1852, one Henry Massey departed this life, leaving a widow, Mariah T. Massey; that lie was seized in fee simple of a certain tract of land lying in said county, known as the Shumate Place, and that Massey by bis last will and testament .devised the same to Ms widow; that complainant Cooper bad married the widow by whom she bad issue of two children, one of…

The points made in this ease, on the motion for a continuance, are stated in the opinion of the court with sufficient fullness to enable them to be understood.

This was an action of ejectment instituted in the circuit court of Marshall county, Virginia, by Samuel Ott, Otho W. HeisMll, and Isaac H. Williams, plaintiffs, against Mary McHenry, widow of John McHenry, deceased, Philip Gamp-bell and Ann, his wife, John McHenry, Mary McHenry, Amanda McHenry, James McHenry, William McHenry, Abigail McHenry, Emily Catherine McHenry, Hester Timbe McHenry, and Winñeld Scott McHenry, defendants, to recover 270 acres of land with its…

Alfred Urton brought An action ®f debt, on. the 13th clay of October., 1853, in the circuit court of Nicholas county., against James Hunter, Thomas P. Harris and John McCullough, partners under the firm and style of Hunter, Harris $■ Co., to recover the sum of 618 dollars and 18 cents, and 2 dollars cost of pretest. The writ was executed on Harris alone, the others being' returned as no inhabitants.

This was an action of trespass instituted in the circuit court of Berkeley county, for breaking into the store of the Plaintiff, Abraham R. MeQuilkin, in Berkeley county, and seizing, taking and carrying away, and disposing of and converting to their own use, certain goods and chattels of the plaintiff, by the defendants Henry Shepherd, sen’r, John Shepherd, James A. Osborne and James W. Glenn.

The preliminary motions made in this cause, is reported now in consequence of there being several causes pending in the circuits' throughout the State, of a similar character. The points made in- the motion are stated by the judge deciding it.

<p>1. So long as a contract continues executory, the plaintiff must declare specially; but when it has been executed on his part, and nothing remains but the payment of the price in money, by the defendant, the plaintiff may declare generally, using the common counts, or specially on the original contract, at his election.</p> <p>2. Where the contract, though partly performed, has been abandoned by mutual consent, the plaintiff may resort to the common counts alone for remuneration for what he has done under the special agreement.</p> <p>3. Where it appears that what was done by the plaintiff, was done under a special agreement, but not in the stipulated time or manner, and yet was beneficial to the defendant, and is or has been accepted and enjoyed by him, the plaintiff cannot recover upon the contract from which he has de-departed; yet he may recover upon the common counts for the reasonable value of the benefit which upon the whole the defendant has derived from what he has done.</p> <p>-I. Plaintifls and defendant entered into a special contract, by which the plaintiffs were to make certain sections of defendant’s railroad, in a special manner, under the supervision and control of the defendant’s engineers, to bo completed by a specified time and at a specified price; estimates were to be made by the engineers and acquittances executed by the plaintiffs. Much of the work was done under the contract, and the road partly finished and partly paid for, but the plaintiffs failing to complete it in the time specified, they continued the work with the consent of the defendant, until it was completed, or accepted as completed by the defendant’s engineers having the supervision and control of it, and final estimates made and rendered. Held :</p> <p>That the plaintiffs can recover, in assumpsit, under the common counts.</p> <p>5. A party ought not to be heard to complain, that the court would not stultify itself by giving, at bis instance, instructions which contradict each other, and thus confuse rather than enlighten the jury.</p> <p>6. It is as competent for a jury to investigate fraud as a chancellor; the evi’ dence to sustain actual fraud must be the same, in substance and effect, in one form that it is in the other.</p> <p>7. An instruction is void for uncertainty, and ought to be refused as calculated to confuse the jury, when it contains a bare assertion that if the jury believed the work and labor was done by the plaintiffs under a special contract, without averring a condition precedent, or that it was still open and subsisting; or whether the evidence stated in the bill of exceptions tended to show whether the contract had been completed or rescinded, or whether the work done under the contract, not in accordance with its provisions, and yet it being beneficial to, had been accepted and appropriated by the defendant.</p> <p>8. A case, in which from great discrepancies in calculations and estimates, a jury was justifiable in presuming fraud, and a motion to set aside a verdict and grant a new trial, because the verdict was contrary to evidence, was properly refused.</p>

Andrew Hunter, Samuel Price, W. S. Summers, Samuel Miller and Caleb Boggess applied at tbe bar of this court, at the July Term, 1866, for admission to practice without being required to take the oath… Held: that this limitation did not impair the obligation of a contract. Phalen vs. Virginia, 8 Howard, 163.

These causes arose in Kanawha county, and were both brought to July Buies, 1865. The actions were of similar character, trespass, for taking and carrying away, two horses the property of the plaintiff, Charles Tompkins.

These causes arose in Berkeley county, in July and August, 1865. They were all heard at the December term, 1865 of the circuit court. The action was trespass for taking and carrying away the goods of the plaintiffs respectively.

In August, 1865, James H. Jennings sued out of the clerk’s office of the circuit court of Ber'kdey county, a writ in trespass on the case, against Daniel… Held: that, in Virginia, and other States, the common law rule that an attaching creditor was only liable in damages, where the attachment was issued “ maliciously and without probable cause,” is changed or modified by the legislatures, as is shown by the prescribed conditions for the bond, when executed by the creditor.

This was an action of trespass on the case brought by the plaintiff below, Henry B. Pitzer, against the defendant, John Cunningham, in the circuit court of Berkeley county, for seizing, threshing and carrying away two hundred bushels of wheat belonging to the plaintiff. The declaration was filed on the 3d of July, 1865.

<p>1. A. defacto office cannot exist under a constitutional government; but the acts of a defacto officer when a government is wholly revolutionized, are, ex, necessitate, valid.</p> <p>2. In order to make valid the acts of a de facto officer, he must be exercising the functions of a de jure or de facto office.</p> <p>3. When a State government is in insurrection or rebellion, and committing acts of hostility against the government of the United States, and the same is so declared by the political department of the United States government, the acts of all officers claiming allegiance to and adhering to the State government that is so committing acts of hostility, are null and void.</p> <p>4. A writ was issued out of what was claimed to be the cleric’s office of the circuit court of G. county on the 18th day of May, 1863, signed by C. A. S.as clerk. A bill, answers and some depositions wore filed shortly af-terwards in the cause. On the 12th day of April, 1866, the following order was entered: “This cause having originated and being proceeded in before the late so-called circuit court of the county of Greenbrier, a court in rebellion against the government of the United States, having no legal or political status or existence, and whose judicial acts and privileges (as well as officers) whether civil or criminal, cannot he recognized as valid by this court: It is therefore adjudged, ordered and decreed by this court that the institution of the said suit and all the acts and proceedings had therein before the late so-called circuit court of the county of G. are null and void. And on motion of the defendants by their counsel it is ordered that this cause be dismissed from the docket of this court. But without prej udice,” &c. TIet/d :</p> <p>_1. C. A. S., the clerk, was by the proclamation of the executive department of the government of the United Slates, declared to be “in insurrection and rebellion” against its authority, on the 1st day of July, 1862, and under the ordinances of the convention that reorganized and restored the government of "Virginia, at Wheeling, the offices of all who attempted to exercise the functions thereof in the interest of the insurgent government were declared to be vacant; therefore, he was not exercising the functions of an office de jure, and his acts were null and void.</p> <p>2. The clerk who issued the writ was not acting in subordination to the authority of the United States, but was acting in subordination to the authority of the insurrectionary government of the State of Virginia, then in “insurrection and rebellion” and committing acts of hostility, against the government of the United States; and having been by the latter declared to be in “insurrection and rebellion,” the acts of the clerk were not the acts of a defacto officer exercising the functions of a de facto office, as the insurrectionary government was never acknowledged by the political department of the United States government to be a de facto government.</p>

George Sharer and S. 11. Martin, partners under the firm and style of Sharer §■ Marlin, brought suit against John Q. A. Nadenbousch and William N. Riddle, for trespass in taking and carrying away the goods of the plaintiff, claiming 5000 dollars damages, in the circuit court of Berkeley county.

On the 31st of October, 1863, there were pending in the circuit court of Harrison county three causes, as follows: Archibald Boring vs. Samuel J. Boring, unlawful detainer; same vs. same, injunction; and Samuel J. Boring vs. Archibald Boring and Jared Boring, injunction.

This suit was brought in Preston county, in J une, 1864, against Joseph V. Williams aud Charles Williams. The action was trespass for seizing and carrying away the property of the plaintiff, David Freeland, in January, 1864. The plea of not guilty was entered at the September term, 1864.

The attorney for the Methodist Episcopal Chuch, on the 28th day of August, 1866, gave notice to Joel McPherson, Thomas Henning, Wallace Robinson, James T. Caldioell, Dean Venable, George Law, Henry… Held: but that at the last quarterly meeting at Chapel Hill, he, witness, had given notice, as he thought he had a right to do as presiding elder, that the next quarterly conference would be held at Lewisburg on the 10th of September.

Minter J. Bailey, for the use of Joseph B. Bailey, brought an action of debt in the circuit court of Lewis county, on the 17th day of March, 1859, against John Morroño. The declaration was in the usual form, alleging that defendant made his single bill in writing, sealed with his seal, on the 8th day of September, 1851, promising to pay the plaintiff one hundred dollars twelve months after date.

Kuykendall Bherrard, merchants, brought an action of debt in the circuit court of Hampshire county, for two hundred and thirty-nine dollars and fifty-six cents, against Gipson Ruckman, Matthew Combs, and Joseph Haines.

The facts in this case are substantially stated in the opinion of the president. It is unnecessary to give any of the evidence produced to prove a contract in erecting the wall, as the president states that it wholly failed to sustain all the allegations of the bill in that particular.

George W. Cooper filed his bill in the circuit court of Mason county, in August, 1860, against John K. Nichols, asking for a specific performance of a contract. He alleged the sale of a certain tract of land in Mason county to the defendant, estimated to contain two hundred acres, but which upon actual survey contained two hundred and ninety-three acres, at the price of twenty-two dollars per acre. He admitted' certain payments made by the defendant at sundry times.

At the June rules, 1856, Michael Core filed his bill in the circuit court of Monongalia county, Virginia, against Ignatius: Cosgray and Flizabeth his wife, Daniel Diamond, Henry Diamond, Abraham Skriver and Isaac Wharton, in which it was alleged that Daniel Diamond, late of Fayette county, Pennsylvania, made his last will and testament and departed this life; that said will on the 23rd day of January, 1827, was duly proven and admitted to record in the prohate court of said…

William H. Watson, surviving partner of the firm of Ayres $ Watson, merchants, brought suit- in July, 1857, injhe circuit court of Jackson county, against Abraham Raines, in covenant.

On the 14th clay of May, 1866, Fayette A. Lovell filed his bill in equity in the clerk’s office of the circuit court of Kanawha county against William H. Fdioards, William. F. Chilton, Anthony Grilkinson, John G. Bird, Joseph Musgrave and William E. Gr.

On the 25th day of June, 1866, the prosecuting attorney for the county of Calhoun brought to the attention of the circuit court of that county, certain matters of record, poll books, &c., to show that by a vote oí the people, in pursuance of an act of the general assembly, passed February 13th, 1862, the location of the county seat had been changed from Arnoldsburg to Simon P. Slumps farm.

This was an application by Cunningham to the supreme court of appeals for a writ of prohibition to the circuit court of Braxton county to prohibit that court from supervising by means of certiorari the action of the board of supervisors in the matter of a contested election for clerk of the circuit court of said county. The application was based upon a suggestion in writing supported by affidavit.

At the spring term, 1848, of the circuit superior court of law and chancery for Fayette county, John Foe on the demise of Hannah Wright Anderson, (late Southgate,) George Morris Southgate and James Southgate filed a declaration in ejectment against Richard Roe to recover the possession of one thousand acres of land lying in the county of Fayette, on branches of Laurel creek; and no further description of the tract of land for which suit was instituted was given in the…

A. V. Hitchcox, who alleged tliat she was the wife of Waldo P. Hitchcox, tiled her bill in the circuit court of Ritchie county, in March, 1866, by M. P. Amiss, her next friend.

Jesse F. Phares was sheriff of Randolph, county in 1861-62. Some of his sureties gave him notice that they would be liable no longer on his bond of office, whereupon he filed a new bond on the 28th day of July, 1862, with 'William Bennett, George W. Yokum, Squire B. Daniels, Benjamin I Phares, Benjamin Phares, Adam Orawford and William C. Chenowith, as his sureties.

This cause arose in Berkeley county in August, 1866. When the plaintiff, William JR. Porterfield, administrator, ■was called as a witness he was objected to by the attorney for the defendant, at whose instance he was sworn upon his voir dire. TJpon inquiry he stated that he was not a creditor of his decedent’s estate, and had no interest direct or remote in his estate or the result of this suit.

Mary Duty, who subsequently intermarried with Benjamin L. Pyle, obtained a judgment against one Ulysses JD. Cox for 400 dollars, on the 30th day of September, 1857, in the circuit court of Tyler county. At the time of instituting her suit on the 4th of September, 1854, she sued out an attachment against the estate of the defendant. On that attachment the sheriff endorsed on the 5th day of September following, that he delivered to Waitman F. Joseph a copy thereof.

This case came from the seventh district court of appeals of Virginia, by operation of law. It arose in Greenbrier county in 1859. A sufficient statement of the material facts is made in the opinion of the Judge who delivered it. The following printed argument was submitted on behalf of the defendant in error : Was the ease properly decided by the court below? I think it was.

<p>The facts in this case sufficiently appear in the opinion of Judge Maxwell.</p>

Philip M. Petty and Catherine, bis wife, late Catherine Mitchell, filed their bill in the circuit court of Lewis county in March, 1859, claiming to be entitled to a certain interest in a certain tract of land of which her father, John Mitchell, died, seized. It appeared that John Mitchell died possessed of two tracts of land, known as the “ Tanner” tract containing 207 acres, and the “ Walker” tract containing about 200 acres. He left nine heirs.

William Tyree was deputy sheriff for Edward D. Vandall, sheriff of Fayette county in 1851. As such deputy he collected the amount of an execution in a cause of Wilson vs. Landeraft et al. At the September term, 1851, of the circuit court of that county, Wilson obtained judgment, on motion, against Tyree, (he having failed to pay over the money collected by him,) and others, including Jacob Nebergall, as sureties for Vandcdl, he having moved from the State.

Charles Mollohan sued out of the clerk’s office of Wood countj'-, a writ of trespass on the case against Jonathan B. Beckwith, returnable to August rules, 1865.

This cause arose in Marion county. The only question considered by the court here was that concerning alleged inadequacy of price for the land sold by the trustee. The opinion of the President states the ease.

In February, 1866, Daniel Peck, filed bis bill in the circuit court of Ohio county, against Archibald B. Bllison, John A. Bllison, and Narcissa P. Bllison, who were non-residents of the State, and others, defendants residing therein, claiming that said defendants, Bllisons, were indebted to him in a large sum of money for services rendered them as an attorney at law, arising out of the following contract: “Article of agreement, made this 18th day of January, 1857, between…

In the fall of 1858, Charles F. Walker purchased a stock of goods of a mercantile firm at the Kanawha Salines in Kanawha county, known as F. Walker S¡> Co., composed of F. Walker, N. B. Cabell, and John P. Hale. By the terms of the purchase he took all the goods on hand and the debts due the firm, and was to pay its liabilities and certain other sums, agreed upon, to each member of the firm individually.

Lewis BaOxird instituted an action of trespass on the ease in the circuit court of Monroe county, on the 10th day of January, 1866, against Christopher Lively, surviving executor of Joseph Lively. The declaration was filed at the April rules following. It contained some of the characteristics of both trespass and case.

James Wylie sold to Fdioin M. Brown, in the year 1863, a certain tract of land lying in the comity of Monroe, where both parties then resided, containing 328f acres, at the price of 35 dollars per acre. The contract was reduced to writing, and stipulated that the money to be paid was to be Confederate States money.

At the February rules, 1866, Remembrance Swan filed his bill in the circuit court of Marshall county, against Charles M. Dodson, Sarah E. Dodson, Anne Dodson, Newton Dodson, and Samuel Venus, praying a specific performance of a contract in writing made on the 4th day of September, 1865, between the defendants, Charles M. Dodson and Sarah D. his wife, and the complainant, which contract was recorded on the 5th day of September, 1865, in the recorder’s office of Marshall…

On tbe first Monday in January, 1860, P. M. Adams filed bis bill in chancery in the circuit court of Doddridge county against Jeptha F. Randolph, in which it is alleged that Randolph, by fraud and strategem, procured a patent from the commonwealth of Virginia, about the year 1851, for 135 acres of land, the greater portion, if not all, of which laid in the county of Doddridge, and for fear of detection he went to the county of Harrison to obtain a patent, and had by various…

Thomas JD. Wilson caused to be issued out of the clerk’s office of the circuit court of Wood county, on the 25th day of January, 1864, a summons on a suggestion, alleging that by reason of a lien of fieri facias which issued from the same office on the 4th day of January, 1864, against the goods and chattels of the North-western Virginia railroad company, for the sum of 7,331 dollars and 39 cents, with legal interest thereon from the 1st day of February, 1855, till paid, and…

Ill March, 1849, Josiah Ingersoll and Matilda C., his wife, late Matilda. G. Whiting, Lacien Whiting, and Catherine A. Mil-hank, the heir of Catherine Miibank late Catherine Whiting, who were the descendants and heirs of Thomas W. Whiting, deceased, brought a writ of right in the circuit court of Marshall county, against Thomas II.

Tbe case is substantially stated in tbe syllabus, and opinion of tbe President. Tbe applicant’appeared in bis own behalf in this court.

This case arose in Marion county in 1850. The plaintiff, William Bldridge, who brought the action of unlawful de-tainer, died in 1852, and the case was revived in the name of his devisees. In October, 1868, a trial was had and a judgment rendered against the defendant, Moran, for the possession of the premises. He obtained a supersedeas from this court in 1864. The case was dismissed here, on motion of the plaintiff in error, at the January term, 1866.

Charles H. Younger, Jr '., was indicted in tbe circuit court of Mason county on tbe 27tb day of August, 1866, for tbe murder of Clarissy Younger. On tbe 29 th day of August, 1866, tbe prisoner was led to the bar of tbe court by the jailor of tbe county of Mason, in whose custody be was, and by bis counsel moved tbe court to quash tbe indictment against him, and each count thereof; which motion, after being maturely considered by tbe court, was overruled.

At tbe November term, 1865, an indictment was found against John Parkinson by tbe grand jury of tbe county of Marshall. The indictment was as follows: “ Marshall county to-wit: In the circuit court of said county.

A bill of indictment was found against Lewis Seibright, by tbe grand jury of Ohio county, at the March term, 1867, for selling at the fifth ward market-house in the city of Wheeling, in said county of Ohio, diseased, corrupted, unsound and unwholesome meat. A trial was had, on the plea of nett guilty, at the same term, when the jury found the defendant guilty and assessed his fine at 100 dollars.