Volume 20 — West Virginia Reports

<p>A prisoner convicted of felony obtains á writ of error, and lie then escapes from j ail and is still at large. In such case the appellate court will order, that the writ of error be dismissed by a certain day, unless it shall be made appear to the court before that day, that the plaintiff in error is in custody of the proper officer of the law.</p>

Motion to dismiss a.writ of error to a judgment of a circuit court of tlio county of Nicholas, rendered on the 15th day ot August, 1881, on an indictment for burglary in a case in said court then pending, wherein the State of West Virginia was plaintiff and Samuel Sites was defendant, allowed upon the petition of said Sites. Hon. F. A. Guthrie, judge of the seventh judicial circuit rendered thejudgment complained of.

<p>The sale of gum-camphor and alcohol mixed by the seller before delivery and sold as a medicine is not embraced by section 1 of chapter 107 of the Acts of the Legislature of 1877, which provides, that “No person without a State-license therefor shall sell, offer or expose for sale spirituous liquors, wine, porter, ale or beer, or any drink of a like nature,” &e.</p>

Writ of error to a judgment of the circuit court of the county of Brooke rendered on the 21st day of March, 1879, in an action in said court then pending, wherein Abraham H. Stansbury wasplaintiff and Nicholas Stansbufy’s administrators were defendants, allowed upon the petition of said defendants. ' lion. T. Melvin, judge of the first judicial circuit, rendered the judgment complained of.

Writ of error and supersedeas to a judgment of the circuit court of the county of Marion, rendered on the 23d day of December, 1881, in an action in said court then pending by the State of West Virginia against Thomas Cartright upon an indictment for felony, allowed upon the petition of said Cartright. Hon. A. B. Meming, judge of the second judicial circuit, rendered the judgment complained of. The facts of the case fully appear in the opinion of the Court.

Writ of error and supersedeas to a judgment of the circuit court of the county of Harrison, rendered on the 7th day of January, 1880, in an action in said court then pending; wherein Mary TC. I\ Allen was plaintiff, and Wirt Bartlett was defendant, allowed upon the petition of said Allen. lion. A. B. TTeming, judge of the second judicial circuit, rendered the judgment complained of. The facts of the case fully appear in the opinion of the Court: • 1.

<p>1. Section 86 of Article VIII. of the Constitution does not authorize the setting aside of judgments therein specified and the granting of new trials therein. The judgments must stand until by “due process of law” it is ascertained, that they were rendered because of acts done according to the usages of civilized warfare in the prosecution of the war, and when so ascertained such judgments are nullities.</p>

*(Haymond, Judge, Absent.) Appeal from and supersedeas to a judgment of the circuit court of the county of Preston, rendered on the 19th day of June, 1869, in an action in said court then pending, wherein William Adamson was plaintiff, and John T. Peerce and others were defendants, allowed upon the petition of said Peerce and Fairfax. Hon. John A. Dille, special judge, rendered the judgment complained of. The facts of the case are fully stated in the opinion of the Court.

on the 11th day of May, 1881, in a cause in said court then pending, wherein Mariah Holden was plaintiff, and David W. Doggess was defendant, allowed upon the petition of the said Holden. Hon. A. B. Fleming, judge of the second judicial circuit, rendered the -decree appealed from.

*(Snyder, Judge, Absent.) Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha, rendered on the 19th day of December, 1879, in a contested election case, wherein John Dryden was plaintiff, and Thomas Swinburne was defendant, allowed upon the petition of said Dryden. Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

day of March, 1877, on the 25th day of March, 1878, on the 10th day of September, 1878, and on the 24th day of, September, 1878, in a cause in said court then pending, wherein Samuel Shipman was plaintiff and Thomas J. Bailey and others were defendants, allowed upon the petition.of said Bailey. Hon. J. M. Jackson, judge of the fifth judicial circuit, ren-, dered the decrees appealed from. .

<p>1. The power of a court to punish for contempt is arbitrary and discretionary with the court, against whom, or whose orders, the offense has' been comniitted; and proceedings for the punishment of such an offense being in their nature criminal, this Court has no jurisdiction to review ail order of the circuit court deciding, that no contempt has been committed, (p. 152.)</p> <p>2. An agreement to pay interest upon interest is valid,.if made after the interest, which is to bear interest, has become due and payable. (p. 153.)</p> <p>3. A, being indebted to B by written contract, from time to time, as interest became due and payable by the terms of such contract, gave to B his notes for such accrued interest, and subsequently, upon a settlement between the parties, said notes with the interest computed thereon from their respective dates are added to the original debt, and an obligation is then executed by A to B for the aggregate amount bearing interest from date, and a trust deed on real estate given to secure said obligation. Held :</p> <p>This is not usurious nor inequitable, (p. 154.)</p> <p>4. Where an injunction is obtained upon a bill alleging a parol contract for the extension of the time for the collection of a debt secured by trust deed, and the proof does not, in the opinion of this Court, establish such a contract as would be specifically enforced by a court of equity, it will not be held, that the circuit court erred in refusing to direct ah issue to be tried by a jury to ascertain, whether such contract was in fact made. (p. 155.)</p>

Writ of error and supersedeas to j adgments of the circuit court of the county of Tyler, rendered respectively on the 6th day of September, 1881, and on the 9th day of September, 1881, in an action… Held: in which a majority of the votes cast were in favor of continuing the schools of the district for more than four months in that year; and that pursuant to said vote a levy had been made sufficient to continue the free schools for six months in the year 1880.

S. Core was plaintiff, and J. G-. Bell was defendant, allowed upon the petition of said Bell. Hon. Thos. J. Stealy, judge of the fourth judicial circuit, made the order appealed from. The facts of the case are stated in the opinion of the Court. 11 W. Va. 464. CK to CO -0* to ^ o ~ o 01 l-1 CO 00 M o -CT Cn so l-J .5a fg CD C* o ♦ M o * CO M Cn * N — “i o +=> m y m ° rn coo 2 Atlc. 188; 18 Am. Dec. 350 ; 12 Am. Dec. 104..

<p>1. An injunction is not granted to restrain a mere trespass to real property, when the bill does not clearly aver good title in the plaintiff; nor even then, as a general rule, where the injury, complained of is not destructive of the substance of the inheritance, of that which gives it its chief value, or is not irreparable but is susceptible of complete pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. (p. 178.)</p> <p>2. A deed, which in the granting clause “grants and conveys” to “A” the land therein described, cannotbesaidtoshowtitlein B, because the deed concludes : ‘ ‘to have and to hold to the said B,” when he was not named in the premises, (p. 178.)</p> <p>3. An injunction will bo dissolved at the hearing of a motion to dissolve on bill and answer sworn to, if the answer fully, fairly, plainly, distinctly and positively, denies the allegations of the bill. (p. 179.) ' .</p> <p>4.An injunction will not be granted to restrain the cutting of timber and removing it from land on the sole ground that the plaintiff has brought an ejectment suit against the defendant to try the title to the same land. (p. 181.)’</p>

*(G-rbeN, Judge, Absent.) Appeal from and siqyersedeas to a decree of the circuit court of the county of Jefferson rendered on the fifteenth day of April, 1875, in a cause in said court then pending, wherein the administrator of Hannah Hurst, deceased, was plaintiff, and Thoniás' ITite, in his own right and administrator of William G-. Ferguson, deceased, was defendant, allowed upon the petition of said Hite.- lion.

* (OREEN, Judge, Absent.) Appeal from and supersedeas to two decrees of tlie circuit court of tlie county of Jefferson, rendered respectively on tlie 18tli day of November, 1875, and on tlie 26th day of April, 1876, in a cause in said court then pending, wherein the Shenandoah Valley National Bank was plaintiff' and Solomon A. Bates and others were defendants, allowed upon the petition of said Bates.

*(Snyder, J., Absent.) Appeal from and supersedeas to a decree of tlie circuit court of the county of Jefferson rendered on the 18th day of June, 1881, in a cause in said court then pending, wherein James M. Mason was plaintiff, and the Harper’s If erry Bridge Company was defendant, allowed upon the petition of said defendant. lion. Charles J. Faulkner, Jr., judge of the thirteenth judicial circuit rendered the decree appealed from.

<p>1. An objection to a report of a commissioner, upon the ground that the report was not completed and filed the number of days required by the statute before the commencement of the term at which the cause is heard, and on account of which no exception is filed or objection made in the circuit court, will be held to have been waived at the hearing, and cannot be taken in this Court for the first time. (p. 246. J</p> <p>2. In order to subject a suit brought by one partner against his co-partner to the bar of the statute of limitations, it must not only appear that there has been a dissolution of the partnership more than five years before the institution of the suit, but that there were no valid claims of debit or credit against or in favor of the firm, paid or received, or outstanding, within thattime. (p. 247.)</p> <p>3. While a commissioner’s report, if erroneous, may in some cases be objected to at the hearing though no exception is filed to it; yet without such exception it cannot be objected to in an Appellate Court in relation to subjects which may be affected by extraneous evidence, (p. 250.;</p>

<p>1. Tlie 2d, 3d, 5th, 7th, 8th, 10th, 11th points of the syllabus, in Jarrettv. Jarrett, 11 W. Va. 584 affirmed in this ease. (p. 255.)</p> <p>2. It is not necessary, that a person should possess the highest qualities of mind, in order to make a will, nor that he should have the same strength of mind, which he may formerly have had ; the mind may bo in some degree debilitated, the memory may be enfeebled, the understanding may be weak, the character I may be eccentric, and he may even want capacity to transact many of the ordinary business affairs of life ; but it is sufficient, if he understand the nature of the business, in which he is engaged, has a recollection of the property, which he moans to dispose of, the objects of his bounty, and the manner, in -which he wishes to distribute it among them. (p. 256.)</p> <p>3. Where legal capacity is shown, and the testator acts freely, the validity of the will cannot be impeached, however unreasonable imprudent or unaccountable, it may seem to the jury or to others, (p. 255.)</p> <p>4. In order to make a valid will, it is not necessary, that the testator should name all his children in it, or give all of them a portion , of his estate. If he was mentally capable of understanding the disposition, which he was making of his property, and acted freely, it is immaterial to whom he gives his property, whether all to one of his children, or to strangers. If he has a disposing-mind and memory, he has the right to do, as he pleases with his property, (p 257.)</p> <p>5. Although the testator was influenced by feelings of resentment and dislike towards a part of his children and by feelings of affection and attachment towards others, and though these feelings influenced him to give his whole estate to the one part, and nothing to the others, this is not sufficient to make the will invalid. (p. 257.)</p> <p>6. Although the testator was fickle and inconstant, and at one time favored one or more of his children, and at other times disliked them and favored others, still if he acted freely and had the capacity to understand the nature of the business, in which he was engaged, and a recollection of the property, which he meant to dispose of, the objects of his bounty and the manner in which he wished to divide it, the will is not invalid oil that account; and if his will was caused by the extreme kindness and attention of the principal devisees, that will not constitute undue influence, which will invalidate the will. (p. 257.)</p> <p>7. Where a number of instructions had been given to the jury on the subject of mental capacity to make a will, and one instruction directed to the acknowledgment of the signature stated, that if the jury believed the testator knew, that his name was signed to the will, and acknowledged it in the presence of two witnesses, it is immaterial, whether the signature was written by the witness, the testator or both, it does not make the instruc- . tion vicious, because it says : “The material matter for the jury to determine is, whether the testator knew his name was attached to the will, and that he recognized it as his will and signature in the presence of the attesting witnesses at the time of the acknowledgment.” It was the “material matter” for the jury to determine, on the question raised by the instruction, (p. 258.)</p> <p>8. The court should not give as an instruction a paragraph from a book containing matters hard to be understood and calculated to confuse and mislead, (p. 259-260.)</p> <p>9. At common law a man could not dispose of his property by will. The statutes of wills changing the common law and permitting persons to dispose of their property by will but requiring that the testator should be of sound mind, as to testamentary capacity changed the common law presumption of sanity, and cast the burden of proof upon the propounder of the will to show, that the testator was sane, when the will was executed, (p. 261.)</p> <p>10. Where an erroneous instruction has been given to the jury, the presumption is, that the exceptor was prejudiced thereby, and the judgment will be reversed for this cause unless it clearly appears from the record of the case, that the exceptor could . not have been prejudiced by the giving of such erroneous instruction. (p. 261.)</p> <p>11. Where upon the trial of an issue devisavit vel non the principal question was, whether the testator had mental capacity to execute the will, and the evidence was conflicting, and the court erroneously instructed the jury, that the presumption of law was that the testator was of sound mind, when the will was executed, and the burden of proof was on the contestants to show want of capacity, the Appellate Court cannot say, that the contestants, who excepted to said instruction, and against whom the verdict was rendered, were not prejudiced by such instruction, (p. 265.)</p>

<p>1. A special commissioner appointed by a decree of court is simply the creature of the court, and he has no powers except those conferred upon him by the order of his appointment and the course of practice of the court, (p. 208.)</p> <p>2. A person, who appointed by a decree of court special commissioner to make sale of lands under such decree and take bonds for deferred payments on said lands, and who makes such sale and takes bonds payable to himself as such commissioner, when said sale is reported to court and confirmed, has no authority to collect said sale bonds unless the decree conferring the appointment or some subsequent decree or order of court gives him authority to do so. (p. 269.)</p> <p>3. A special commissioner, who sues to enforce the payment of bonds executed to him as commissioner, must aver in his bill his appointment and authority to collect said bonds, or the bill will be held insufficient on demurrer, (p. 271.)</p> <p>4. An exception to an answer for insufficiency is in the nature of a demurrer and admits the truth of the matters excepted to; and it is error for the court to sustain an exception to a matter alleged ■ in the answer, which, if true, would be a proper ground of de-fence to the bill in whole or in part. (p. — ).</p>

<p>1. When a fact is proved by secondary evidence without exception or objection taken in the court below, the Appellate Court will presume all objection to such evidence waived and will not entertain such objection made for the first time in that Court, (p. 278.)</p> <p>2. Every agreement required by the statute of frauds to be in writing must be certain in itself or callable of being made so by reference to something else, whereby the terms can be ascertained with reasonable certainty. And in contracts for the sale of lands the court may go outside of the writing for the purpose of identifying and ascertaining the land sold, where general words of description capable of being made certain are used in the writing, (p. 279.)</p> <p>3. A deed committed to a third person to be delivered by him to the grantee upon the performance of a specified condition does not take effect, until such condition is performed, although such third person may have delivered it to the grantee, (p. 281.)</p>

<p>1. An objection to the proceedings in a chancery cause, that another chancery suit is pending in the same court for the same cause of action, should it be presented by a plea or a motion to dismiss as a preliminary question and as an incident among other matters in an answer on the merits, it will not avail, (p. 821).</p> <p>2. A bill brought by residuary legatees is not multifarious, which seeks the settlement by an executor of a father of his estate and also of the mother’s estate, where by the agreement of the parties interested the executor of the father had agreed likewise to act as executor de son tort of the mother and distribute the estate of the mother after the payment of her debts in the same manner and to the same parties, to whom the father’s estate was to be distributed, the two estates being so mingled, as to make their separation difficult, (p. 323.)</p> <p>3. An executor should, be charged in the settlement of his accounts with all the assets of his testator, which he has collected in money, or' which ho has converted to his own use by exchanging the debt or obligation due the estate for an obligation of a third party and also with such debts, as have been lost to the estate, and as could have been collected by the use of reasonable diligence. (p. 324.)</p> <p>4. When a debt duo to the testator has been collected, the executor should be charged in the settlement wit]i the debt as of the time, • when he actually collected it, and not as of the time, when he . might have collected it by the use of reasonable diligence, (p. 325.)</p> <p>5. An executor in the settlement of his accounts should not except under extraordinary circumstances, be charged with agood debt, which he has not actually collected, simply because by the use of reasonable diligence he could have collected it before, (p. 325.)</p> <p>6. If a debt has been lost to the estate by the negligence of the executor in not taking steps to collect, when it could have been collected, he should be charged with such debt and interest as of the time, when it should have been collected. Such charge is made not because his unreasonable delay in attempting to collect the debt was a conversion of the assets of the estate, but because his negligence in not attempting- to collect the debt, whereby it was lost, is such a tort, as should make him responsible for the loss actually sustained by the estate by such negligence, (p. 324.)</p> <p>7. The debts, which are stated in the inventory as good, after a reasonable time will be prima faoie presumed to have been collected ; and it devolves upon the executor to show, that they have not been collected, and not on the legatees to show, that the executor has been guilty of misconduct or negligence in reference to such debts, (p.825.) ,</p> <p>8. Where a debt is duo to the testator from a perfectly solvent party and is in no way risked by the indulgence of the executor, he has a large discretion in granting indulgence on such debt, as under many circumstances such a debt, if collected, could not be at once paid out, and as the executor knows best the needs of the estate for money, the court would not hold him responsible for the not collecting of such a debt promptly, provided it remained a perfectly good debt. (p. 325.)</p> <p>9. In settling an executorial account an executor ought not to be charged with interest from the day of the receipt of each sum of money ; but the account should be closed at the end of each year, and the interest should be charged on the balance due at the end of each year ; and such interest is not carried into the account of the succeeding year, as is done in an account between debtor and creditor, so that the payments should be made out of the interest, but the interest in settling an executor’s account is so kept separate, as that the payments made by the executor are applied to the discharge of the principal due first and not of the interest duo. The interest being brought into the account only at the close of the transactions. To this general rule however there are some exceptions, (p. 326.)</p> <p>10. The account with the legatees is however settled on a different basis, that is, on the basis of an account between debtor and creditor; and the account with the legatees settled on this basis should be opened, after a reasonable time has been allowed the executor to pay the debts of the estate, whether they have been actually paid or not by the executor, (p. 324.)</p> <p>11. Where a slave was with all the residue of the testator’s personal estate left prior to the late war to a number of residuary legatees, and prior to this war the estate was not in a condition to be distributed among them, it was the duty of the executor to hire out such slave ; and if the slave was lost as a consequence of the war, the executor should not be held responsible for the loss, as he had no right to sell him, the payment of debts or legacies not requiring the sale of the slave, (p. 334.)</p> <p>12. If an executor neglects to sue for a debt due his testator promptly, when the pecuniary condition of the debtor made it his duty to do so, and the debt is lost by this negligence, the executor should be charged with such debt. Nevertheless if he brings a suit for such debt, though not promptly, he should be allowed the costs of such suit and the reasonable counsel fees paid by him, even though the debt bo lost, if at the time he instituted the suit, there was a reasonable prospect of his being able to save the debt; for it was, when he instituted the suit, an asset of the’ estate, which it was his duty to endeavor to save by suit. (p. 327.)</p> <p>13. If an executor voluntarily pay a legacy, he can not afterwards maintain a bill to compel a legatee to refund, unless it becomes necessary for the discharge of debts, even though the executor ■ has made such over-payment under the belief, that a large debt supposed to be duo the estate would be collected, and without • his fault it was never collected. (p. 328.)</p> <p>14. But such over-payment of one legatee ought not to be regarded as such an admission of assets in the hands of the executor, as should bind him to make a like over-payment to other legatees. (p. 328.)</p> <p>15. If an executor shortly after his qualification brings a suit to settle his accounts and make a distribution of the estate under the order of the court, there being a necessity for such a suit because of the difficulty in the particular case of making such distribution except under the order of the court, and after a settlement in such suit of the executor’s accounts by a commissioner, this necessity of the interposition of the court in order to a distribution of the estate having ceased, the suit is not prosecuted by the executor nor by the legatees, but the legatees after a lapse of much time institute an independent suit in the same court against the executor and his securities for a settlement. of his accounts, and in this suit both these causes are heard together, and a large balance is found due from the executor, and the legatees believing, that a still larger balance is due from him, appeal from the decision of the circuit court, and the Appellate Court reverses the decision of the court below and finds a still larger balance is due from the executor, the costs of the court below and in the Appellate Court should be paid out of the .estate and not by the executor personally, (p. 340.)</p> <p>16. Generally a legacy to a child bears interest from the death of the . testator, (p. 328)</p> <p>17. The renunciation of a will by a widow will not be allowed to break up the arrangements of the will, and to disappoint the interest of others under her husband’s will further than is absolutely nceessrry. In all other respects, but as regards her, the will ought to bo executed as nearly as possible according to the wishes and instruction of the testator, (p. 301-339.)</p>

<p>1. Where a petition was tendered for the rehearing of a cause, which on its lace showed, that the grounds, on which a rehearing was sought, were that the petitioner did not have the benefit in the cause of offsets, which lie might have filed and did not for reasons in the petition stated, the circuit court properly refused the petition, because the plantiff, in order to have the benefit of said offsets, wasnot compelled to file theminthe cause, but might have sued at law to recover the same. (p. 350.)</p> <p>2. Where such petition was tendered to rehear a cause and also a former cause, on which the latter was claimed to be based, and out of which it was claimed it grew, and neither the bill, exhibits nor decrees in the former cause were-exhibited, and no proper description of said bill, exhibits or decrees was made in the petition ; the petition was properly refused, (p. 350.)</p> <p>3. Where there is rio appeardncé to a cause except to make a quali- ■ fled consent to a decree entered therein, and such decree is entered on bill taken for confessed, and an appeal is taken from the decree, the appeal must.be dismissed as improvidently awarded ; for no appeal could be taken from the part consented to because of such consent, and no appeal would lie from the residue, because it was entered on a bill taken for confessed, no . motion to correct having been made and overruled in the court below, (p. 350.)</p>

(*Haymtond, Judge, Absent.) Appeal from and supersedeas to a decree of tlie circuit court of tlie county of Taylor, rendered on tlie 9th day of September, 1876, in a cause in said court then pending, wherein Samuel Corrothers and others were plaintiffs and Thomas D. Sargent and others were defendants, allowed upon tlie petition of Samuel Corrothers and 'William Cor-rothers. Hon. Charles S. Lewis, judge of the second judicial circuit, rendered the decree appealed from.

<p>1. Corporations created by statute must depend, both for their powers and the mode of exercising them, upon the true constrction of the statute creating them. (p. 365.)</p> <p>2. The statute, quoad the corporation, is an enabling act, not only in regard to the powers conferred, but also as to the mode prescribed for exercising those powers, and unless the mode so prescribed is observed by the corporate body its acts will not bind the corporation, (p. 366.)</p> <p>3. The members of a corporation aggregate cannot separately and individually give their, consent, or enter into a contract, in such a manner as to oblige themselves as a collective body or board, (p. 368.)</p> <p>4. Under the provisions of chapter forty-five of the code of 1868, by which each board of education of the several townships of tlie counties of the State is created a corporation and its. duties prescribed, the members of such board, acting individually and separately and not as a board convened for the transaction of business, cannot make a contract or promise that will obligate or bind them as a corporation, (p. 368.)</p> <p>5. As such board can be expressly bound only by joint and corporate acts, so it is only from such acts, done either by the board as a body, or by its duly authorized agents, that any implication can be made binding it in law. (p. 369.)</p>

<p>1. A widow claiming to be the sole heir of her deceased husband has not' a right to Ale a bill in chancery against parties claiming to be heirs of her husband, who are in possession of the property of her deceased husband as his heirs, and obtain from the court a decision, as to who are the true heirs of the husband, and she put into possession of her husband’s land, if she establish herself to be his sole heir. In such case her remedy is in a common law court by a writ of unlawful entry or detainer or by ejectment. ( p. 376.)</p> <p>2. Nor would a court of chancery have any jurisdiction in such a case, though on motion of the defendants as heirs of her husband under section 9 of chapter 110 of the Code of Virginia of 1860 dower had been assigned her in the lands of her deceased husband. (p. 377.)</p> <p>3. Nor would an allegation in the bill, that the circuit court on such motion had assigned her dower by reason of a fraudulent representation of the defendants, whereby the court was induced to assign her dower, as though the defendants in the chancery suit were heirs of the deceased husband, and she was not his sole heir. Nor would the fact, that she had, or that she had not, notice of such motion, alter the case. (p. 380.)</p> <p>4. Such assignment of dower in such case, whether with or without notice to the widow, is not an adjudication of the question, who are the heirs of the deceasod ? This question in any controversy between the parties subsequently will in no manner be affected by the action or judgment of the court in such proceeding, (p. 379.)</p> <p>5. Nor would the case in any of these respects be altered, if such motion or assignment of dower was made under chapter 65 l 9 of the Code of West Virginia instead of chapter 110 \ 9 of Code of Virginia of 1860. (p. 379.1</p> <p>6. The court in this ease declines to consider, whether if in such a case the widow accepts the dower assigned her and surrenders the possession of heríate husband’s real estate, except the dower land assigned her, to such persons claiming to be heirs of her husband, she is by such acts estopped from thereafter claiming, that she is the sole heir of her husband and as such entitled to all his real estate, or the effect on such estoppel, if it be one, of these acts of hers being done under a misapprehension of facts or of the law. Or whether their possession under such circumstances is adversary to her. These questions cannot properly be considered in such a chancery suit, which ought to be dismissed, but only properly arise in the suit at common law, if one should be instituted, (p. 381.)</p> <p>7. In such a chancery suit if one of the defendants claims, that he is the sole heir of the plaintiff’s husband and in his answer asks as affirmative relief, that he be so adjudged by the court and his title and possession of the land quieted, the court should not determine the question, whether he is such sole heir or grant the relief he seeks, but should dismiss his answer, so far as it is intended as a cross bill, a court of equity having no jurisdiction to consider and decide the case presented by such answer, (p. 381.)</p>

(*Snydeb, Judge, Absent.) Appeal from an order of the circuit court of the county of Greenbrier made on the 6th day of November, 1879, and from a decree of said court rendered on the 17th day of June, 1880, with a supersedeas to a part of said decree, in a cause in said court then pending, wherein William B. Reid and Elizabeth Reid, his wife, were plaintiffs, and William R. Stuart and John Stuart, executors of Elizabeth Stuart, deceased, were defendants, allowed upon the…

<p>1. Some of tbe principles stated, upon which, a court of equity will decree the specific execution of a parol contract for the purchase land ; and the evidence given of a case, in which such decree is held proper, (p. 403.)</p> <p>2. Parol evidence, in the absence of fraud or mistake, will not be received to engraft upon or incorporate with a valid contract an incident occurring- contemporaneously therewith and inconsistent with its terms. This rule applies in every case,, where the question is, what is the agreement. But collateral circumstances attending the agreement and mistake or fraud in the procurement or execution of the agreement may be proved by parol evidence, (p. 410.)</p> <p>3. As a general rule a tenant is not permitted to question the title of his landlord ; yet from the time the landlord has notice that the person who formerly held as tenant claims to be in possession, not as tenant but in his own right, the relation of landlord and tenant ceases, (p. 412.)</p> <p>4. Where a tenant in possession purchases from his landlord the premises leased to him, if the contract of purchase is established, the possession of such former tenant will be treated, after the date of the purchase, as a possession under and by virtue of such purchase and not as a tenancy, (p. 412.)</p> <p>5. Neither the statute of frauds nor the law of agency requires that the authority of an agent to make a parol contract, whether oral or written, shall be in writing. The authority to make a deed, or contract under seal, must be under seal. But a contract for the sale of lands need not be under seal the statute of frauds only requiring that such contract shall be in writing and signed by the party to be charged or his agent, (p. 418.)</p> <p>6. A person in possession of real estate is sufficient notice to a purchaser, contracting with a claimant of such real estate not in possession, to put him on the enquiry, and if he takes a conveyance from such claimant, he will be charged in favor of the person so in possession with all the information such enquiry would have given him if diligently pursued, (p. 414.)</p>

<p>1. A contract which a court of equity will specifically enforce must be certain as well as fair in its terms; and the certainty required has reference both to the description of the property and the estate to be conveyed. Uncertainty as to either, not capable of being removed by extrinsic evidence is fatal to any suit for a specific performance, (p 422.)</p> <p>2. Extrinsic evidence in such case is only admissible to a very limited extent. It cannot be used to supply any defect or omission in the terms of the 'written contract; but is strictly confined, in cases where no fraud, mistake or other equitable incident of a like character is alleged, to the function of explanation, and of exhibiting the surrounding circumstances in the manner and only to the same extent that such evidence is permissible in the interpretation of all other written instruments, (p. 422.)</p> <p>3.In a suit for the specific execution of a contract for the purchase of land, where neither the contract itself, nor the extrinsic proof of the surrounding circumstances, identifies or defines the tract or boundaries of the land, or refers to anything by which it may be identified with reasonable certainty, the court will not decree a specific performance, but will dismiss the bill. (p. 422.)</p>

<p>(*Snydeb, Judge, Absent.)</p> <p>Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 14th day of January, 1880, in an action in said court therein pending, wherein Mary D. Quarrier was plaintiff and the Baltimore and Ohio Eailroad Company was defendant, allowed upon the petition of the said company.</p> <p>lion. Gibson L. Cramner, judge of the municipal court of Wheeling, rendered the judgment complained of.</p> <p>The facts of the case appear in the opinion of the Court.</p> <p>The Baltimore and Ohio Railroad Company is a resident corporation of West Virginia. B. 0. B. B. Co. v. Qallahue, 12 Gratt. 655; Ooshorn v. Supervisors, 1 W. Va. B. 308; Supervisors Marshall Co. v. B. 0. B. B. Go., 3 W. Va. B. 319; State v. B. O. B. B. Co., 15 W. Va. 362; Mahany v. Hephart, 15 W. Va. R. 609; B. & O. B. B. Co. v. Wightman, 29 Gratt. 431.</p> <p>Defendant in error being a married woman had a right to sue at law. Stockton v. Farley, 10 W. Va. R. 178; Duress v. Horneffcr, 15 Wis. 195; Faddish v. Woollomes, 10 Kans. 89; Jones v. Jones, 19 Iowa, 236 & 243; Kramer v. Conger, 16 Iowa 437, 438; Badford v. Carwile, 13 W. Va. 660. ■</p>

<p>1. When a bill is filed by a judgment-creditor to have the lands of the judgmenDdebtor sold to pay his judgment-debts, which are liens upon the judgment-debtor’s lands, to have the land rented rather than sold is a privilege accorded to the judgment-debtor and others interested, and they must exercise it in the inferior court ; and the decree must show, that they asked a rental of the land, and it was refused, before the decree for that reason will be reviewed in the Appellate Court, (p. 447.)</p> <p>2. The inferior court must be called onto say, whether in a. reasonable time the rents and profits of the real estate will pay the liens charged thereon ; and this discretion must first be exercised by the court below, before the Appellate Court will review the decree of said court; and upon such review the Appellate Court will not reverse it, unless it appear, that the court erred in the exercise of that discretion. Hose & Co. et al. v. Brown etux. 11 West Ya. 122. (p. 447.)</p> <p>3. While it is true, that to have the real estate rented is a privilege accorded to the debtor under circumstances, still to entitle the debtor to have the benefit of such privilege he must exercise reasonable diligence in claiming it in the court below, and he must ask the rental of the property, before the decree of sale is entered, unless he shows to the court below good and sufficient reason, why he did not ask it, before the decree of sale was entered. (p. 448.)</p> <p>4. When it appears upon the face of the decree of sale, that the court below ascertained the several liens on the land and the respective amounts thereof and their priorities, but it otherwise appears in the cause, that the court may have erred to some extent in ascertaining such priorities, the appellant is not prejudiced thereby, and the Appellate Court will not reverse the decree of sale for this cause at the instance of the judgment-debtor, if none of the judgment-creditors complain in the Appellate Court of such error but ask the affirmation of the decree, (p. 445.)</p>

Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 5th day ot July, 1881, in an action at law in the said court then pending, wherein J. E. Stevens who sues for the use of G. 0. Smith, was plaintiff, and E. IT. Brown and Norris II. Brown were defendants, allowed upon the petition of said Norris II. Brown. lion. Gibson L. Cranmer, judge of the municipal court of Wheeling, rendered the judgment complained of.

<p>1. The summons in a justice’s court, like the writ in courts of record, must be looked to in order to determine the plaintiff's claim upon the question of jurisdiction, (p. 469.)</p> <p>2. But if the sum mentioned in the summons is within the jurisdiction of the justice, still if it appears during the trial that the plaintiff’s claim was an entire sum and that the plaintiff had reduced it by feigned credits or otherwise, the action will be dismissed as coram. nonjudice. (p. 469.)</p> <p>3. Where an action before a justice is, under section 3, chapter 226 Acts of 1872-3, on the motion of the defendant, removed to the county court, the action may be tried in that court without written pleadings, and whenever it appears, by proof or otherwise, that the justice would not have had jurisdiction if the case had been tried before him, such court shall dismiss the action, (p. 470.)</p> <p>4. The pleadings in justices’ courts are prescribed by statute, and no provision is made for jileas in abatement; such plea, therefore, to the jurisdiction of the justice, cannot be properly filed either before the justice or the county court to which such action may be removed under the statute, (p. 470.)</p> <p>5. The evidence of the plaintiff’s debt, which is required to be filed with the justice, under section 35 chapter 226, Acts 1872-3, is not a part of the summons and can not be regarded as such on a motion to quash the summons, (p. 471.)</p> <p>6. In the absence of a bill of exceptions, making the evidence or facts proved on the trial, a part of the record, this Court will presume that the judgment of the court below was proper, (p. 471.)</p>

<p>1. An affidavit that the defendant has discovered new and material evidence which was not in his knowledge or control at or before the trial; but does not state what the evidence is, or that it could not have been obtained by due diligence before the trial, is not sufficient to authorize the court to grant a new trial, (p. 475.)</p> <p>2. An exception to the opinion of the court refusing a new trial states the evidence introduced on the trial, and not the facts proved. The exceptor in such case occupies the position of a demurrant to the evidence, and unless, after rejecting all his parol evidence which conflicts with that of the other party, and giving to that of the latter full credit, the decision still appears to be plainly wrong, the Appellate Court will not revise the judgment, (p. 476.)</p> <p>3. To an action of assumpsit the defendant pleads non-assumpsit and relies upon a settlement of the account sued on as a bar to the action. The evidence tended to show that the defendant coerced the plaintiff into the settlement in the absence of his books and papers, and that the settlement was grossly erroneous. The defendant did not object to the plaintiff proving to the jury his general account or ask the court to require him to point out the errors in the settlement of which he complained. The jury found a verdict for the plaintiff disregarding the settlement. Held :</p> <p>I. Whether or not a settlement was in fact made was a question for the jury upon all the evidence, (p. 477.)</p> <p>II. The defendant, having failed during the trial to ask the court to require the plaintiff to file a statement pointing out his objections to the settlement, can not complain of the want of such statement in this Court, (p. 478.)</p> <p>III. In cases of fraud or gross mistake, or undue advantage, or imposition made palpable to the court, the court will not require the plaintiff to specify the errors in the settlement of which he complains, but will permit him to proceed on his account de novo. (p. 478.)</p>

Writ of supersedeas to a judgment of the circuit court of the county of Harrison, rendered on the 6th day of June, 1881, in an action in ejectment in the said court then pending, wherein Daniel J. Adams was plaintiff and John Alldre and others were defendants, allowed upon the petition of said defendants. ITon. A. Brooks Fleming, judge of the second judicial circuit, rendered the judgment complained of. The facts of the case are fully stated in the opinion of the Court. Nor.

(*Snydeb, Judge, Absent.) Appeal from a decree of the circuit court of’ tiré county of Greenbrier, rendered on the 5th day of June, 1880, in a cause in said, court then pending, wherein Samuel A. Hed-rick and others were plaintiffs, and Samuel Tuokwiller and others were defendants, allowed upon the petition of said plaintiffs. ” • Hon. Iiomer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.

(*SNYDEii, Judge, Absent.) Appeal from and supersedeas to a decree of the municipal court of’Wheeling, rendered on the 25th day of May, 1879, in a suit in chancery in said court then pending, wherein George K,. Tingle, administrator of James H. Forsyth, deceased, was plaintiff, and Benjamin Fisher and others were defendants, allowed upon the petition of said Tingle. lion. Gibson L. Cranmer, judge of the municipal court of Wheeling, rendered the decree appealed from.

(*Snydeb, Judge, Absent.) Appeal from and supersedeas to two decrees of the circuit court of tlie comity of Greenbrier, rendered respectively on the 11th day of November, 1879, and on the 16th day of June, 1880, in a cause in said court then pending, wherein B. F. Benick was plaintiff, and Samuel C. Ludington and others were defendants, allowed upon the petition of Garland Brown and F. H. Ludington.

(*Snyder, Judge, Absent.) Writ of error to a judgment of the circuit court of the county of Monroe, rendered on the 19th day of May, 1879, in an action in said court then pending, wherein James Carey & Co., were plaintiffs, and Burruss & Pitzer were defendants, allowed upon the petition of said plaintiffs. Hon. Ilomer A. Holt, judge of the eighth judicial circuit, rendered the judgment complained of.

A. B. Lee and others were defendants, allowed upon the petition of said Dages. Hon. E. A. Guthrie, judge of the seventh judicial circuit rendered the decree appealed from. The facts of the case are stated .in the opinion of the Court. cites 13 W. Va. 572; 1 Add. Cont. (Am. Ed. 1875) § 373; 15 W. Va. 278. cites the following authorities: Code p. 608, § 59; 16 W. Va. 687; 1 .Brightly Fed. Dig. 59, Ho. 110; 1 Bouv. Diet. (Ed. 1867) 356; .Sto. Cont. (Ed. 1851) § 32; 2 Nob. Pr.

Werdenbaugh, administrator, and others were plaintiffs, and John Reid and others were defendants, allowed upon the petition of Edward Reid and John Reid. Hon. Thomas J. Stealey, judge of the fourth judicial circuit, rendered the decree appealed from. The facts of the case appear in the opinion of the Court. 25 Graft. 371; 16 W. Ya. 143; 10 Leigh 321; 12 Leigh 428; John. Law Rep. 161; 16 John. 191; 11 Leigh 160; Sto. Eq. PI. (8th Ed.) 183; Bump on Fraud. Conv. 443.

<p>1.. This Court will not set aside a sale of land made by a commissioner on the ground of inadequacy 'of price, where there had been four sales of the land, three of which had been set aside, the first for inadequacy of price, the second because of cloud on the title, and third on an upset bid. (p. 611.)</p> <p>2. If before the confirmation of a sale the report of sale be excepted to, on the ground that the decree ordering the sale failed to fix the amounts and priorities of the liens charged thereon, and it clearly appears to the court, that the debtor was materially prejudiced in the sale of the land thereby, the land on that account being actually sold for a price materially less than it otherwise would have sold for, the court in the exercise of a sound discretion may for such reason refuse to confirm such sale, and set it aside, (p. 612.)</p> <p>3. A decree will not be reversed at the instance of the appellant for errors not prejudicial to him. (p. 613.)</p>

(*Snydkr, Judge, Absent.) Appeal from and supersedeas to certain decrees of the circuit court of the county of Wood rendered respectively, on the 22d day of January, 1879, and on the 16th day of April, 1879, in a cause in said court then pending, wherein John B. Johnson was plaintiff, and Young, Carson & Bryant and others were defendants, allowed upon the petition of said Johnson. lion. James M. Jackson, judge of the fifth judicial circuit, rendered the decrees appealed from.

Writ of error to a judgment of the circuit court of the county of Wetzel, rendered on the 1st day of June, 1881, in a suit in said court then pending, wherein the State of West Virginia was plaintiff, and Michael Pendergast was defendant ; allowed upon the petition of the State. Hon. T. J. Stealey, judge of the fourth judicial circuit, rendered the judgment complained of.

Writ of error to a judgment of the circuit court of the county of Barbour rendered on the 6th day of May, 1880, in an action in said court then pending, wherein the State of West Virginia was plaintiff, and John P. Thompson was defendant, allowed upon the petition of said Thompson. Hon. John Brannon, judge of the sixth judicial circuit, rendered the judgment complained of. The facts of the case fully appear in the opinion of the Court. 1.

Writ of error to a judgment of the circuit court of the county of Jackson rendered on the 24th day of March, 1882, in a trial on an indictment for murder in said court then pending, wherein the State was plaintiff and J ohn W. Cain was defendant, allowed upon the petition of said Cain. lion. Robert E. Fleming, judge of the sixth judicial circuit, pronounced the judgment complained of. The facts of the case are fully stated in the opinion of the Court. 2 Graft. 611; Whar.

Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha rendered on the 10th day of January, 1882, in a trial on an indictment for murder in said court then pending, wherein the State of West Virginia was complainant, and William H. Robinson was defendant, allowed upon the petition of said Robinson. Hon. 'Frank A. Guthrie, judge of the seventh judicial circuit, rendered the judgment complained of.

Writ of error to a judgment of the circuit court of the county of Harrison, rendered on the 20th day of May, 1882, upon an indictment for feloniously and maliciously shooting with intent to kill, in which case the State of West Virginia was plaintiff and Frank Jones was defendant, allowed upon the petition of said J ones. Hon. A. Brooks Fleming, judge of the second judicial circuit rendered tlie judgment complained of.

'Writ of error to a judgment of the circuit court of the county of Grant rendered on the 3d day of October, 1877, in an action upon an indictment for murder in the said court then pending, wherein the State of West Virginia was plaintiif and William S. Douglass was defendant, allowed upon the petition of said Douglass. lion. .James D. Armstrong, judge of the twelfth judicial circuit rendered the judgment complained of.

(†SNYDER, Judge, Absent.) Petition for a writ of mandamus to compel the circuit court of Greenbrier county to proceed in the trial of an action on the case in which A. E. White, administrator oi John D. White, deceased, was plaintiff, and the Chesapeake & Ohio Railway Company was defendant. The facts of the case are sufficiently stated in the opinion of the Court.