Volume 23 — West Virginia Reports

<p>“H. J. K.” filed a creditor's bill against the administrator and heirs of “D.,” which was referred to a commissioner, who reported the amount of personal assets in the hands of said administrator applicable to payment of debts — and also amounts and character of all outstanding debts against the decedent, among which was a large judgment recovered by one “L. B.,” (who became a co-plaintiff in the cause), against said administrator; the court confirmed said report, as to all debts reported except as to said judgment of “L. B.,” “as to which the court then declined to express any opinion,” but directed said personal assets to be applied ratably, in part payment of all other reported debts — the real assets of decedent then under control of the court, , being ample for the payment of all his debts including said j udgment — and continued the cause with leave to all parties to take further proof of the consideration of said judgment, but made no Anal decree therein or any decree settling the rights of any of the parties or creditors as to the residue of their debts, or the rights of said “L B.” as to his said judgment. At this stage in the progress of the cause, said “L. B.” applied for and obtained an appeal and supersedeas to the decrees directing the distribution of said personal assets. Held :</p> <p>That the appeal and supersedeas were improvidently awarded and for that cause must be dismissed.</p>

<p>A summons on a suggestion issued under the provisions of section 10 of chapter 127 of the Acts of 1882 is properly made returnable to the first clay of the next term of the circuit court of the county, from the clerk’s office of which said summons is issued, although the first day of the next term of such court comes before the expiration of twenty days from the date of the issuance of such summons.</p>

<p>•1. An incorporated town or city, which by its charter or the general law is given control over the streets and walks within its corporate limits and is empowered to provide the means to make and keep them in repair, notonly assumes the duty of keeping them in good condition, but by implication agrees to do so for the benefit and protection of the public ; and for any failure or neglect to do so the corporation is responsible for damages to any person injured, ip. 15.)</p> <p>2. The streets and walks in such town are designed for the use of the ■ public, and the use of them by an individual simply for bis own convenience and accommodation unaccompanied by any public use, as for drains, private crossings, sewers, vaults, cess-pools or other obstructions, is unauthorized and essentially a nuisance for which such individual is liable for damages to any one injured thereby. And, because it is the duty of the town to keep its streets and walks free from such private nuisances, it is also liable for damages to any one injured by its neglect to abate such nuisance or remove such private obstruction, (p. 10.)</p> <p>3. One year is the bar prescribed by the statute of limitations for the recovery of damages for an injury to the person in all cases except actions under sections 5 and 6 of chapter 103 of the Code. U>. 18-)</p> <p>4. A case in which a judgment and verdict were awarded and set aside because the case was tried without replication or issue joined on the plea of the statute of limitations.</p>

<p>An arrangement is entered into between A. and B. to operate a sawmill owned by A , whereby it is agreed that B. shall assist A. to run the mill, furnish the means to stock and keep it in order and support A.’s family ; that A. and his sons are to operate the mill, and B. is to sell the lumber and, after deducting from the proceeds of the sales the means so furnished by him and pay for his services, the net surplus or profit is to be applied to the payment of a debt due from A. to B. Held :</p> <p>I. The said arrangement does not constitute a partnership, inter se, between A. and B.;</p> <p>II. In a settlement between them A. is not entitled to charge either B. or the exxiense account for the labor of himself and sons and for boarding hands while operating the mill , under said arrangement, (p. —.)</p>

<p>1. Real estate is not chargeable with the payment of pecuniary legacies, unless the intention of the testator so to charge it is expressed in the will, or such intention appears by implication, (p. 35.)</p> <p>2. Where it is manifest from the whole will, that it was the design of tlie testator, that the legacies should be paid at all events, the implication is that the residuary devisee or legatee shall only have tlie remainder after satisfaction of the previous dispositions, (p. 35.)</p> <p>3. When a testator after providing for the payment of several pecuniary legacies declares, that they shall be paid by his executor without designating out of what estate they shall be paid, and in his will makes no specific devise of his real estate or any part thereof, but places the real and personal property together in one fund in the residuary clause, he thereby manifests an intention to charge the land with the payment of the legacies, if the personal property should not be sufficient to pay the same. (p. 35.)</p>

<p>The facts of the case appear in the opinion of the Court.</p>

Geeen, Judge, furnishes the following statement of the case : The mayor and council of the town of Grafton on the 28th clay of April, 1874, ordered its finance-committee to advertise fo/bids for the bonds of the towu of Grafton, which it proposed to issue for a loan payable in not less than twelve nor more than twenty-two years at nine pier cent, per annum interest.

<p>The facts of the case appear in the opinion of the Court.</p>

<p>The facts of the caso are stated in the opinion of the Court.</p>

SnydeR, Judge, furnishes the following statement of the case: Suit in equity brought, November 14, 1879, in the circuit court of Monongalia county by Alex. T. Hess, administrator ot William Chesney, deceased, against John A. Dille, O. H. Dille, trustee, Josephus S. Brookover and Mary E., his wife, and Martin Y. C. Brookover.

Snyder, Judge, famishes the following statement of the case: By written contract or title-bond, dated May 18, 1858, Abner Snider sold to Samuel Trader two lots, ETos. 7 and 8, in the town of Grafton, Taylor county, for one thousand two hundred dollars, the last payment of which was for two hundred and eighty dollars, payable April 1, 1859, and the said Snider bound himself to convey said lots to said Trader upon the payment of the purchase-money.

Green, Judge, furnishes the following- statement oí the case: At October rules, 1871, Mary E. Brown filed in the circuit court of Randolph county her declaration in an action of ejectment against Adam Coyle for a tract of land in s>id ■ county containing seven hundred and eighty-three acres, yvliioh she claimed for her life. The boundaries of the tract are set out in detail in the declaration, and the damages are laid at one thousand dollars.

Green, Judge, furnishes the following statement of the case :■ On the 5th day of April, 1879, Adolplms Armstrong, James 0. Watson and John II. Kuust, executor of George II. A. Kunst, entered into a written contract with one Martin L. Shields of which the following is a copy : “A contract between A. Armstrong, James 0. Watson and John II. ICunst, executor of George II. A. Kunst, deceased, of the one part, and Martin L. Shield, of the other part.

Woods, Judge, furnishes the following statement of, the case: This case is a warrant of unlawful entry and detainer, brought before a justice of Wood county on June 11, 1880, by Thomas Hughes and Thos.

GreeN, Judge, furnishes the following statement of the case,: A judgment was recovered on May 15, 1874, in the circuit court of Monroe county for the use of A. A. Chapman for two hundred and eighty-two dollars and ninety-five cents with interest from that date against Nancy Burke; 'and on October 17, 1874, another judgment in the same suit for the use of same party was recovered for four hundred and forty-two dollars and fifty cents with interest from that date being the…

<p>1. In the construction of a will the intention of the testator is to be ascertained by taking t-h'e whole will together, (p. 171.)</p> <p>2. In giving a proper construction to’ a will the court will be aided in the interpretation of certain words and phrases used by keeping in mind the whole scheme of the willj and it should be so construed, if possible, as to make one consistent whole, (p. 172.)</p> <p>3. The manifest intention must have effect, unless some rule of law is violated thereby, (p. 172.)</p> <p>4. Technical words used must be construed to have their proper meaning, unless it appears from the will, that the testator used them in a different sense, (p. 172.)</p> <p>5. Taking the whole will together, it may appear, that by the word “heirs” the testator meant “children” or “issue.” (p. 172.)</p> <p>6. A testator in the second clause of his will said : “I desire that my whole property, both real and personal, (my slave Torry excepted) be sold, and the proceeds of the same together with all debts owing to me after paying all my just debts be loaned and kept at interest till after the death of my slave Torry and the marrying or death of my daughter Rebecca Bryson or Rebecca Clark.” In the third clause he said : “I desire that my ■ slave Torry have a comfortable support out of my estate so long as she lives.” In the fourth clause he said : “I desire that my daughter Rebecca Bryson, daughter of Rebecca Clark, after the death of my slave Torry, if she be married, receive the whole of my estate, but should she not be married, I desire that she receive from time to time so much of the same as she may need, for a comfortable support and education, to be iudged of by my executors, till she marries, or so long as she lives. Should she die without heirs, any of my estate that may be left after supporting Torry, I desire to be equally divided between my brothers and sisters. I do appoint James Harvey and Thomas . Fowler to be executors of this my last will and testament, &c.” The natural daughter a very few years after the death of the testator in 1836 married and had two daughters; the mother and daughters both died many years before the old slave Torry, who lived to be over one hundred years old, and died in 1862. Heud :</p> <p>I. The estate was contingent upon Rebecca being alive and married at the death of the slave Torry, or marrying- after the death of Torry.</p> <p>TI. That the word “heirs” used m the fourth clauseof the will meant “children” or “issue of her body.”</p> <p>III. The natural daughter and her children being all dead at the time of Torry’s death,' the bequest at once vested in the brothers and sisters of the testator, (p. 173.)</p> <p>7. The executors having discharged their duty under the will, and • loaned the money with good security, which has not been lost and is still uncollected, they are discharged and no decree can be had against them. (p. 175.)</p> <p>8. The principal and sureties in the bond to the executors are liable to the brothers and sisters of the testator, (p. 175.)</p> <p>9. The bond having been executed in 1841, and a contract then entered into by the executors with the knowledge and consent of the sureties, that the principal should not be required to pay the money until the death of Torry,’who died in 1862, and this suit having been brought in 1870, the sureties cannot rely on the presumption of payment, or on the statute of limitations, (p. 176.)</p>

<p>1. Equity will not interfere between parties to the relief of one against the other in a fraudulent transaction, (p. 180.)</p> <p>2. A sale under a trust-deed will not be set aside unless for weighty reasons, (p.182.)</p> <p>3. A case in which the proof wholly failed to sustain the allegations. of the bill. (p. 181.)</p>

<p>1. Where a judicial sale is confirmed, and the court directs the commissioner to convey the land to the purchaser, retaining in the deed a lien for the purchase-money, and such conveyance is made, and the purchaser sells the land and conveys it to a third party, and such third party sells and conveys to others, and the purchaser from the commissioner fails to pay the balance .of the purchase-money, the lien should be enforced by original bill, if the original cause is ended, or if still pending for any purpose, by supplemental bill filed in such cause.</p> <p>2. The purchaser at the judicial sale as well as his immediate and remote vendees, should be made defendants to such original or supplemental bill, and the land should be sold according to the equities between the said defendants.</p> <p>3. It is bad practice upon the confirmation of a sale of land to order the commissioner to convey the legal title to the purchaser ; the title should be retained until the purchase-money is all paid.</p>

<p>The facts of the case are stated in the opinion.'</p>

<p>'The facts of the case are stated in the opinion.</p>

<p>1. Where it is apparent to the court from the record of a cause that the real merits sought to be determined are not so presented, either on account of defects in the pleadings or in the evidence, as to enable it to decide the real questions in controversy, it is the duty of the court to require such defects to be removed before proceeding to hear the cause and pass upon it finally. And in a plain case, where the inferior court fails to discharge this duty, the Appellate Court will, for that reason alone, reverse and remand the cause, (p. 200.)</p> <p>2 Extrinsic evidence, which is introduced to place the court, as nearly as practicable, in the position of the testator and show the state of his property at the time of making his will, should be received by the court and is entitled to have its just bearing upon the legal import and effect of the will. (p. 200.)</p> <p>3. Whether or not a provision for a wife in the will of her husband is intended to be in lieu of her dower, maybe implied as well as expressed. If not expressed in the will, then, in order to ascertain the implied intention, it is not only proper but absolutely essential, that the situation of the testator, the property owned by him, his liabilities and all the surrounding circumstances likely to influence him in the disposition of his property should be known, (p. 201.)</p>

Woods, Judge, furnishes the following statement of the case: On the 15th of June, 1876, the trustees and commonalty •of the town of Clarksburg, in the county, of Harrison, a municipal corporation of this State, filed their application in writing in the said county against T. II. Adams, Susan II.

■ Woods, .Judge, furnishes the following statement of the case: This is a hill filed hy the Mason City Salt and Mining Company, a corporation existing and organized hy and under the laws of this State, against the town of Mason, an incorporated town in this State, to enjoin and restrain the said town from opening certain streets and alleys through the plaintiff’s lands without having first condemned the same to the public use.

Woods, Judge, furnishes the following statement of the case: Kathau S. White, as the administrator of Leonard Saddler, deceased, claiming that the estate of Andrew Kennedy, deceased, was indebted to his intestate in the sum of one thous- and and fifty-two dollars and eighty-five cents,which became payable on the 17th day of December, 1850, filed his bill in the circuit court of Jefferson comity, in the words and figures following: “Nathan S. White, administrator of Leonard…

<p>The facts of the case are stated in the opinion.</p>

The facts of the case are stated in the opinion. 1. A married woman may trade and contract debts through her husband as her agent. Miller v. Peek, 18 Gratt. 75. 2. Iier property is bound tor her indebtedness,-whether a note given tor it, and accepted as hers, is binding upon her or not. Radford v. Canoile, 13 W. Ya. 562; Hughes §• Co. v. Hamilton, 19 W. Ya. 366. 3. The note in suit was in the usual form of notes given by Mrs. Hiteshew. Devandorf v. Oil Co., 17 W. Ya. 174. 4.

<p>1. The Federal courts have exclusive jurisdiction to decide whether a patent could issue upon an alleged invention, yet where a cause of action relates to the subject-matter of a patent-right, it is within the jurisdiction of the State courts, (p. 253.)</p> <p>2. Equity always has jurisdiction of causes involving the fraud of one party against the other, unless the party who seeks relief was himself guilty of fraud in the transaction, (p. 254.)</p> <p>3. Letters-patent issued to a person afford a prima faoio presumption that he, who is named as inventor, is the original and first inventor of what is described as the improvement; and the burden of proof to sustain an opposite conclusion is on him who denies that such person is the original inventor, (p. 254.)</p> <p>4. When an invention has an actual or potential existence, an interest in such invention may for a valuable consideration be assigned to a third person, and when so assigned, such person will have such interest in the patent afterwards issued to secure such invention, (p. 255.)</p> <p>5. An agreement, which operates as a transfer of a patent or interest therein, is good against a patentee and all who purchase with notice, though not recorded, (p. 257.)</p> <p>6. Where a suit in equity is brought to relieve a person from the effect of a fraud practiced upon him, relief may be granted to such party, but not to one, on a prayer for affirmative relief in his answer, who admits, that he participated in the fraud complained of. (p. 258.)</p>

Green, Judue, furnishes the following statement of the case: At Lecemher rules, 1880, Charles Y. Lucas filed his declaration in the municipal court of ’Wheeling against the Liverpool and Loudon and Globe Insurance Company under section 1 of chapter 66 Acts of 1877 p. 89. The declaration was as follows: “In the Municipal Court oe Wheeling, \ Lecemher rules, 1880. J “Charles.

GREEN, Judge, furnishes 'the following statement of the case: At the October rules, 1879, D. B. Welch filed his declaration in assumpsit… Held: was that expressed in the letter of July 11, 1878, then while there was a partnership between Welch and Aiken in the profits or the losses of the transaction, still the interest of Welch in the wool itself was the entire, sole and unconditional ownership within the meaning of the policy introduced in evidence.” To the giving of this…

<p>1. Special replications, except under our statute where the answer is in the nature of a cross-bill seeking affirmative relief, to either an answer or a plea in equity are not allowed. The plaintiff can be relieved only according to the form and substance of his bill. • If the defendant by plea or answer sets up matter which the plaintiff desires to avoid he may do so by an amended or supplemental bill, but not by a special replication, (p. 317.)</p> <p>2. Under no'circumstances is a plaintiff entitled to recover a sum in excess of that alleged in his bill and the interest thereon.' The averment of his demand is as essential as the proof of it, and both must concur to entitle him to relief, (p. 317.)</p>

<p>The facts of the case appear in the opinion of the Court.</p>

Woods, Judge, furnishes the following statement of the ease: This was an action of assumpsit, brought in the circuit court of Cabell county, by Thornburg & Sons against I). W. Emmons and Harrison Derton, to recover the sum of one hundred and fifty dollars, the amount of a bill of exchange, dated August 25, 1872, drawn by said Emmons in favor of said Derton, on James J. Tracy, treasurer C. & 0. 11.

GREEK, Judue, furnishes the following statement of the ease: At August rules, 1881, Daniel Peek filed his bill in the municipal court of Wheeling, in which he alleged, that Samuel Lewis and Susannah, his wife, and Louis Wood-mansee and Harriet, his wife, by a deed of trust dated June 17,1868, and duly recorded in the clerk’s office of the county-court of Ohio county- conveyed to him, Daniel Peck, as trustee lot Ho. 40 on the corner of Main and Tenth streets in the city of…

<p>Under tlie provision of section 15 of chapter 131 of the Code no more than two new trials can be granted to the same party by the court in, any civil case of any character tried before it by a jury, although one or all of the verdicts necessitating the new trials was caused by the misdirection or mistakes of the court.</p>

<p>1. If a railroad company take the land of any person without having first paid a just compensation to the owner or having secured it to be paid in the manner prescribed by law, the owner as a • matter of right in any such case may enjoin said company from using said land for its purposes till the company have so paid or secured to be paid such just compensation, as by section 9 article III. of our Constitution companies are required to pay or secure to be paid before taking such land; and the observance of this provision of our Constitution can be enforced in no other manner than by the granting of such injunction by a court of chancery.</p> <p>2.If a railroad company without taking the land damages it by the construction of its road the owner of such land cannot as a matter of right enjoin said company so proceeding with the eon" struction of its road till such damages are ascertained and paid; for section 9 of article III. of our Constitution, while it gives a right in such case to recover of a railroad company such damages in an action at law, does not give a right to such injunction ; as it does not require such damages to be paid or secured to be paid before such damages actually arise by the construction of the road.</p> <p>3. But under peculiar circumstances, as for instance where the property is entirely destroyed in value as effectually as if it had actually been taken by the railroad company in constructing its road, such person may obtain an injunction; and upon this principle such an injunction was awarded in Mason v. Harper's Ferry Bridge Company, 17 W. Va. p. 396.</p> <p>4. If a railroad company with the consent of a town-council builds its road through a street of a town, the fee of the ground, on which the street is located being in the adjoining owners of lots, the railroad company does not take the property of such lot-owners, but only an easement from such town-council, asimple right of way so long as the council has an easement in such ground to use it as a street.</p> <p>¡5. Such adjoining lot-owners have therefore no right as of course, whether they own the fee in the ground covered by such street or not, to obtain an injunction enjoining such railroad from occupying and using such road, till the damages done to such lot-owners is ascertained and paid or secured to be paid. Such injunction can be obtained only under peculiar circumstances.</p> <p>6. But such lot-owners, whether they own such fee in the street or not, may by an action at law recover of such railroad company such damages as they might have recovered in a common-law suit, had the railroad company built its road in said street without proper authority; for while such railroad company has built its road by proper authority conferred directly by the Legislature or by a town-council authorized so to do by the^egisla-ture, it cannot be regarded as committing a nuisance in so building its roacl and using it in a careful and proper manner. Yet. under section 9 of article III. of our Constitution said railroad company is liable for the permanent damages it inflicts on such adjoining lots in the same manner as if it had built its road without such proper authority; but after it has been once sued for such damages it is not liable to be sued for the nuisances, which necessarily result from the running of its cars through such street, for in so doing it is only exercising its rights and is not committing a nuisance.</p>

<p>1. The syllabi in Spencer v. Point Pleasant & Ohio River Railroad et al. approved, (p. 448.)</p> <p>2. Courts of equity may substitute a bond of indemnity for an injunction, if the ends of justice will thereby be promoted, and especially if any public interest will suffer by continuing the injunction in force pending the litigation, (p. 449.)</p> <p>8. It is within the ordinary power of a court of equity to accept such a bond when proceeding according to the general principles of equity, (p. 450.) • -</p>

<p>1. The syllabi in Spencer v. The, Point Pleasant <& Ohio Biver Bail-road Company et al., and Campbell v. The Same approved, (p. 451.)</p> <p>2. When a railroad company, by consent of a town-council, is building its road through the streets of a town, and the owner of an adjoining lot seeks an injunction, till a court of equity ascertain the damages he will sustain, giving as a reason for such injunction that the court of common-law will furnish no adequate remedy, as the plaintiff would have to bring repeated suits to recover for the damages he might sustain, as he would recover in any one suit only the damages which he might have sustained prior to the institution of such suit, and on its termination would have to bring a like suit for his damages subsequently sustained, and so on for an indefinite period, this reason furnishes no ground for the interposition of a court of equity, as all damages of a permanent character may be recovered in such case in the first suit at law, and there is not only no necessity for such repeated suits at law, but after such .first suit, in which the uitire damages arc recovered, no second suit could be brought, except to recover d images which did not necessarily result from the building and proper use by the railroad company of its track in such street. A second suit could only be brought for the careless running of cars in such street or for other wrongs done by the railroad company, not including the injury necessarily resulting from the running of its cars in such street, which is the right of the company, (p. 452.)</p>

<p>1. The syllabi in Spencer v. The Point Pleasant & Ohio River Railroad Oo. and Campbell v. The Same and Smith v. Same, approved. (p. 454.)</p> <p>2. A mere allegation of irreparable injury'will not suffice to warrant an injunction; but if this be the only ground for asking the injunction, the facts must appear on which the allegation of irreparable injury is predicated, in order that the court may be satisfied as to the nature of the injury.</p>

Geeen, Judge, furnishes the following statement of the case: Wm.

<p>The facts of the case are stated in the opinion of the Court.</p>

Woods, Judge, furnishes the following statement of the ease: I. C. Snodderly, who never resided within the corporate limits of the town of Fairmont, which is a municipal corporation, created and existing by the laws of this State, on March 12, 1879, purchased írom A. JB. Fleming a citizen and resident of said town, ten shares of the capital stock of the Farmers’ Bank of Fairmont of the par value of one hundred dollars each, which were duly transferred to him by Fleming.

<p>A. enters into an executory contract for the purchase of land and afterwards but before the title is conveyed to him or any part of the purchase-money is paid, he agrees with B., a stranger, that if he will pay one half the purchase-money he shall be an equal owner in the land ; B. consents and thereupon he and A. pay the whole purchase-money to the vendor, each paying one half thereof; the legal title is subsequently conveyed by the vendor to A. Held :</p> <p>L. Such payment by B. created a resulting trust in his favor and the conveyance of the legal title thereafter to A. made him trustee for B. as to one half the land.</p> <p>IT. Trusts of this character are exempted from the statute of frauds and it is competent for the real owner to prove his payment of the purchase-money by parol evidence even though it be otherwise expressed in the-deed. (p. 479.)</p>

<p>In an action of ejectment the iand is described in the declaration by metes and bounds; the order giving judgment for the plaintiff for the land recites : “ This day came the parties by their attorneys, and the defendant withdraws the plea of not guilty heretofore pleaded by him, and says that he cannot gainsay the plaintiff's action;” judgment is then rendered describing the land by metes and bounds in the very terms of the declaration ; and the order concludes as follows: “And it is further considered by the court, that the line on the plat (annexed to the plaintiff’s declaration) and running S. 40 E. 119 poles between the points ‘A’ and ‘B.’ be held firm] and stable as a division line between the plaintiff and defendant.” This provision does not appear to be founded upon any matter or paper in the record and seems to be in conflict with the description of the land as given in the former part of the order. Held :</p> <p>I. That, if said matter in the conclusion of said judgment is erroneous, it is not of that class of errors which can be corrected on motion under either the first or second clause of section 5 of chapter 134 of the Code.</p> <p>II. The first clause of said section is confined to judgments by default and this being a judgment by confession after appearance and not by default it cannot be corrected under that clause.</p> <p>III. And the second clause of said section authorizes amendments and corrections only in cases of mistakes and miscalculations or misreeitals when the same may be safely amended from some other part of the record. This clause is confined to mere clerical errors and does not embrace judicial errors. The latter, where the judgment is not by default, can be corrected only by an appellate court.</p>

Woods, Judge, furnishes the following statement of the case: This was a bill'filed in the circuit court of Gilmer county on September 16, 1874, by Daniel E. Shipley, surviving partner of Shipley & Howard against Preston Pew, as principal debtor, Peregrine Hays and Levi Johnson as his sureties and Gideon D. Camden, to enforce the lien of a judgment recovered by Shipley & Howard on May 5,1855, against said Pew and his said sureties, on a forthcoming board for six hundred and…

<p>. Where a wife purchases land, the burden is upon her to prove distinctly, that she paid for the land with funds not furnished by her husband. Evidence that she purchased amounts to nothing, unless it is accompanied with clear and full proof, that she paid for it with funds furnished by some one other than her husband. In the absence of such proof the presumption is that her husband furnished the means of payment.</p>

GREEN, Judwe, furnishes the following statement of the case: This was a chancery suit instituted in the circuit court of Monongalia. The hill was filed at July rules, 1881, and is as follows: “ lo the Hon. A. B. Fleming, Judge of the Circuit Court Monon-galia county: “Rachel Ohipps, Irwin Scott, George Scott, Jacob Scott, Alexander Scott, Malinda Thatcher, James Huffman, Al-phias Scott, Sarah B. Stevens, Louisa Scott, Jacob Scott, Alexander Ash,' George 0.

CrREEN, Judge, furnishes the following statement of the case: At June rules, 1881, T. J. Horn filed his bill in the circuit court of Woorl county against the Star Foundry Company, a corporation, and also against certain stockholders of said' corporation as partners under theuame of the Star Foundry Company.

Woods, Judge, furnishes the following statement of the case; Some time in the year 1870, John S. Cocke and others who were partners in the late firm ol TTarman, Mason & Co., transacting business in Augusta county, Virginia, filed their bill in the circuit court of that county, against the other members of th,e firm, among whom were Claiborne K. Mason, and Andrew' Stewart, the plaintiff in error, who, by the allegations of the bill was represented to be the owner of ninety of…

<p>; 1. It is the duty of the court before it decrees a sale of laud to flx definitely both the amounts and priorities of the liens on it; and the failure to do either will be ground for the reversal of the decree, (p. 563.)</p> <p>2. Although a decree of sale is entered, which from the facts then appearing is proper, and a sale is made thereunder, it will still be error for the court by a subsequent decree, which sets aside such sale, to order a re-sale of the land, if the facts, then appearing in the cause, show the existence of lions, the amounts and ^HBRorities of which have not been ascertained and Axed. In case the court should set aside the former decree of sale refer the cause to a commissioner or otherwise determine ^fHrlie amounts and priorities of the liens before ordering a re-^Hpale. (p. 564.)</p>

<p>1. A bill filed by a single creditor against the administrator heirs of a decedent to subject the real estate descended to the heirs to the payment of his claim, although not in form a creditors’ bill, will become a creditors’ suit from the time the court makes an order referring the cause to a commissioner to convene the creditors by publication and report the debts of the decedent, and from that time the statute of limitations will cease to run against any and all creditors of the estate of the decedent, whether formal parties to the suit or not. (p. 570.) and</p> <p>2. In such suit an order of reference operates as a suspension of all other suits against the estate of the decedent; and such order may be made in the first cause ready for hearing, although not the first suit brought. If a creditor, witli a knowledge that such order has been made in another suit, brings a separate suit for his own claim, he will bo compelled to pay the costs of his suit. (p. 571.)</p> <p>3. When there is any ambiguity or uncertainty as to the meaning and effect of a decree of this Cotirt in a cause in which it reverses the decree of the inferior court and remands the cause for further proceedings to be had in accordance with the principles settled in the written opinion of this Court, it is proper for such inferior court, or this Court, on a subsequent appeal in the cause, to examine the said written opinion in order to ascertain the true meaning and effect of the decree of reversal and mandate of this Court, (p. 572.)</p> <p>4. The lion of a judgment ceases, and no suit can be brought in a court of equity to enforce it, when the right to sue out execution on the judgment or to revive it by scire facias, is barred by the statute of limitations, (p. 574.)</p> <p>5. Under the provisions of the 11th and 12th sections of chapter 139 of the Code a judgment may be revived by scire facias against the personal representative of the judgment-debtor within ten, years from the return day of the last execution issued thereon, although that time may be more than ten years after the date of the judgment; provided such revival be made within live years from the date of the qualification of such representative, (p. 574)</p>

<p>1. Before sections 35 and 36 of chapter 125 of the Code were passed, while it was proper and in accordance with the strict rules of pleading w;hen a bill to enforce a vendor’s lien on real estate was filed, if the defendant wished to rescind the contract because the defendant was of unsound mind when it was made, or it was procured by fraud, to file a cross-bill for that purpose ; yet where the record showed that the relief could as well be given upon the bill and answer and proofs taken, as if a cross-bill were filed, the filing was dispensed with, as in such case it would be a mere formality to require it. (p. 590.)</p> <p>2. Now under the operation of said sections 35 and 36, where the answer contains material allegations constituting a claim for affirmative relief, and no “ reply in writing” is filed but a general replication, and the cause has been heard upon the pleadings thus made up and the proofs taken, if the record shows that it is not such a case, as would before the passage of said sections have made the filing of a cross-bill necessary in order to entitle the defendant to the relief sought, the decree will not be reversed because no “reply in writing” was filed, (p. 591.)</p> <p>S. Where in such a case the defendant has taken depositions, and it appears that there was a full and fair hearing of the cause upon its merits, and that substantial justice has been done, though there was an informality in not requiring the plaintiff to file a “ reply in writing,” the decree will not be reversed for this reason, (p. 592.)</p> <p>4. In a suit to enforce a vendor’s lien it is not error to decree a sale of the land on which the lien for the purchase-money is reserved or so much thereof as is necessary without ascertaining the amount of other liens thereon and their priorities, (p. 593.)</p>

Gee bn, Judge, furnishes the following statement of the case: At April rules, 1876, Rezin Cain filed in the circuit court of Ritchie countj'- his bill, in which he states,that on November 1, 1854, he conveyed to his sisters Nancy and Do rinda Cain a parcel of land in Ritchie county, West Virginia, said in the deed to contain one hundred acres more or less, but which really contained one hundred and thirty-six acres; that he afterwards sold to one G. W. Parker this tract of…

Gkeen, Judge, furnishes the following statement of the case: At May rules, 1881, Keuben Davisson filed in the circuit court of Taylor county the following declaration in assumpsit against Marshall Ford: “State of 'West Virginia, Taylor County, ss.: “In the Circuit Court, to May Rules, 1881. “Keuben Davisson, plaintiff in this action, complains of Marshall Ford, defendant, of a plea of trespass on the case upon promises, for that heretofore, to-wit, on the — day of November,…

<p>1. Upon tlie disaffirmance of a void judicial sale the purchaser should be placed in statu quo. To do this where no improvements liave been put on the property, he must receive back his purchase-money with interest, and be charged with the reasonable rents and profits of the property while in his possession less the taxes paid by him. (p. 638.) t</p>

Woods, Judois, furnishes tlie following statement of the case: James L. Knight brought his chancery suit in the circuit court of Mason county in March, 1879, against Godfrey Cap-ito, and his son, Charles Capito, alleging that Godfrey Capito was indebted to him in the sum of oue hundred dollars, lent to him on May 26, 1873, with interest unpaid from May 26, 1877, and in the further sum of seven hundred and fifty-four dollars and eighty-three cents, lent to him on April…

<p>1. It is the duty of the plaintiff in a creditors’ bill to make parties thereto all the lien-creditors of the debtor known to him and those, whose liens are disclosed by the judginent-lien docket or the records of the courts of any of the counties, in which any of the lands sought to be sold are situated, (p. 661.)</p> <p>2. Creditors who file their claims before a commissioner in such suit, although not formal parties to the bill, become informal parties to the suit and are as effectually bound by the decrees entered therein, as if they had been made parties to the bill and served with process, (p. 662.)</p> <p>3. If all the lien-creditors are made parties to such suit either formally or informally, this Court will not reverse a decree ordering a sale of the lands of the debtor, merely because the record shows that some of the lien-creditors, who ought to have been, were not made formal parties to the bill, unless it appears that objection was made to the bill in the court below for the want of such formal parties, (p. 661.)</p> <p>4. In such suit the formal plaintiff having obtained satisfaction of his debt, it is not error for the court to state that fact on the record and dismiss him from the suit and order the same to be thereafter prosecuted in the names and for the benefit of some or all of the unsatisfied creditors whose claims have been audited in the suit, (p.662.)</p> <p>5. Where there are liens by trust-deeds, the trustees in such deeds must be made formal parties, before any sale of the debtor’s lands can he ordered ; such trustees cannot be made informal parties by publication; and where a decree of sale is made in the absence of a trustee, this Court will reverse the decree, although the cestui que trust had his debt audited in the suit, (p. 664.)</p> <p>6. A decree or order of reference to a commissioner in one creditors’ suit operates a suspension of all other pending suits for the administration of the debtor’s assets; and such decree ruay be made in the cause first ready for hearing, although it may not be the suit first instituted, (p.664.)</p>

<p>1. A suit in equity will not lie to restrain the collection of a tax on the sole ground that it is improper.</p> <p>2. Courts of equity have jurisdiction to prevent municipal corporations from abusing or exceeding their powers, (p. 669.)</p> <p>3. If a municipal corporation erroneously or illegally taxes property, which it has the power to tax in a proper manner, the remedy for such error must be sought generally in a court of law ; butif it acts ultra vires by taxing property not subject to taxation, or taxes property, which it may tax, beyond the limit fixed by the organic law conferring the power to tax, a court of equity will on a bill filed by the owner of the property so illegally or excessively taxed, enjoin the collection of such tax. (p. 670.)</p> <p>4. A municipal corporation possesses and can exercise the following powers and no others : 1st, those granted in express words by its charter or the general statutes under which it is incorporated ; 2d, those necessarily or fairly implied in or incident to the powers thus expressly granted ; and 3d, those essential to the declared purposes of the corporation — not simply convenient but indefensable, ip. 672.)</p> <p>5. A town incorporated under chapter 47 of the Code of this State can not assess and collect wharfage from the proprietor of a ferry for the use of a ferry-landing within its corporate limits ; nor can it tax such ferry except as property, at the rate it may tax other property within its corporate limits, (p. 672.)</p>

<p>1. A plea in abatement to the jurisdiction of the court can not be filed after a conditional judgment or decree nisi. (p. 677.)</p> <p>2. A joint plea in abatement by two defendants, which is bad as to one, is necessarily bad as to theother. (p. 678.)</p> <p>3. A court of equity has jurisdiction to set aside an illegal or void tax deed. (p. 678.)</p> <p>4. Where a deed or other written instrument is assailed and claimed to be invalid by a plaintiff, and such deed or instrument is exhibited with and made part of his bill, and it appears to.be invalid upon its face, the court will not decline to declare it void and set it aside, simply because the plaintiff did not in his bill specify the particular grounds on which the court regards it void. (p. 678.)</p> <p>5. If the clerk of the county court omits to note in his office the day on which the sheriff returns to his office the list of lands sold for delinquent taxes, such omission will render any deed made to the purchaser of land so sold and returned invalid, (p. 679.)</p> <p>6. Where the proceedings appearing in the office of the clerk of the county court, upon which a tax-sale and deed are founded, show fatal defects, the grantee in such deed will not beregarded asa bona fide purchaser; nor will his vendee be treated asa bona fide purchaser ; because a purchaser of land for taxes and all his vendees are deemed to have notice of whatever defects the records in the county clerk’s office, on which his deed is founded, disclose, (p. 680.)</p> <p>7. Where two or more persons claim the same land under adverse titles or color of title, if either desires to protect his title from forfeiture he must enter the land on the assessor’s book in his name and pay the taxes thereon. The payment of taxes on such land by an adverse claimant will not protect other titles from forfeiture. Bach claimant must enter the land and pay the taxes on it in his own name. (p. 683.)</p> <p>8. A purchaser of land sold for delinquent taxes, after he acquires a deed therefor, will be deemed as holding adversely to the person in whose name the land was sold, and if such person denies the validity of the tax-deed and still claims the land he must keep the land on the assessor’s book in his name and pay the taxes thereon. The payment of the taxes on such land by the tax-purchaser in his own name will not inure to the benefit of the former owner, and, therefore, such former owner will not be required to reimburse such purchaser for taxes so paid in his name by the court which declares void and sets aside such tax deed. (p. 684.)</p>

G-REBN, Judge, furnishes the following statement of the case: In May, 1868, Hiram W. Johnson and Jane Johnson, his wife, filed their bill in the circuit court of Putnam; county, stating that on.

Ceben, Judge, furnishes the following statement of the case: . ' On September 1, 1879, Charles F. Stockton and others filed in the circuit, court of Fayette county their declaration in ejectment, claiming a tract of land in said county of two thousand three hundred acres unlawfully withheld from them by the defendants, Evermont W. Copeland, Malloy M. Copeland and Octavia Copeland.

<p>1. A purchaser at a judicial sale is not protected by section 8 of chapter 132 of the Code, when the record of the suit shows, that necessary parties, interested in the property sold, having liens thereon, were not before the court, when said sale was ordered and confirmed, (p. 708.)</p>

<p>1. An appeal will lie to a decree overruling a motion to quash an execution, although the amount iu controversy was composed wholly of costs (one hundred and four dollars and seventy cents) decreed against the defendant, (p. 718.)</p> <p>2. An execution must substantially agree with the judgment or decree upon which it is issued, (p. 714.)</p> <p>3. The execution must show-in what cause the judgment or decree was entered, and the party in whose favor and against whom the judgment or decree was rendered, (p. 714.)</p> <p>4. A decree is rendered against A. for four hundred and forty-three dollars and twenty cents and against A. & B. for the costs ; an execution is issued against A. & B. both for the four hundred and forty-three dollars and twenty cents and the costs; such execution should be quashed, as there is no privity whatever between A. & B. as to the four hundred and forty-three dollars and twenty cents decreed against A. (p. 715.)</p> <p>5. A statute, chapter 57 of the Acts of 1870, authorizes the judge of the municipal court of Wheeling, “when necessary,” to appoint a clerk pro tempore. In August, 1881, in the absence of the clerk, the said judge appointed a clerk pro tempore; the clerk resumed the discharge of his duties, and afterwards, in October, 1882, in the absence of the clerk, the same person, who had been in 1881 appointed clerk pro tempore, assumes again to act as such and issues an execution. The issuing of the executon by him was without authority, (p. 716.)</p>

Johnson, Pkgsident, furnishes the following statement of the case: In July, 1880, P. W. Heiskell instituted a suit in equity in the… Held: that from the evidence of the transaction there was a resulting trust in favor of P. W. Heiskell, and that Powell held the legal title to one third of said land in trust for said Heiskell; and that as Powell had sold said property to innocent purchasers, Heiskell was entitled to one third of the profits- of said sale, after expenses…

Woods, Judge, furnishes the following statement of the case: On the 17th clay of October, 1873, Richard S. Radcliff, residing in the county of Marion in this State, instituted his suit in chancery in the circuit court of that county, against George W. Pounclstone, and his wife Mary A. Poundstone, Samuel Thompson, residing in Pennsylvania, John W. Corothers of the said county of Marion, and the Discount and Deposit Bank of Brownsville, in Pennsylvania, and sued out an order…

Woods, Judge, furnishes the following statement of the case: On the 23d clay of June, 1866, the plaintiff, Dulce Rowena Laidley, then being the wife of Alexander T. Laidley, being the owner in tee simple of various parcels of land in Kanawha county which she inherited from her father, James C. McFarland, by deed of that date, in which her husband joined, undertook to convey all of her said lands to one William A. Quarrier, upon the following trusts: “That the said Quarrier…

<p>A statement of the facts of the case is contained in the opinion of the Court.</p>

<p>The opinion of the Court contains all the facts of the ease.</p>

Skydur, Judge, furnishes the following statement of the case: On August 12,1881, John A. Armstrong and the Monitor Towboat and Lumber Company two of the defendants to the original bill in the above entitled cause then pending in the circuit court of Pleasants county, presented to the judge of said court in vacation thier cross-bill praying, among other matters, an injunction to restrain ~W. W. Hall, trustee, and the Pittsburgh Stave Company from selling the staves in the…

Gkeen, -Judge, furnishes the following statement .of the case: On October 6, 1882, the grand jury found the following indictment against William G. Ileaton: “West Virginia, Gilmer County, to-wit: “In the Circuit Court of said County, October term, 1882. “The jurors of the (State of West Virginia in and for the body of the county of Gilmer, and now attending the said court, upon their oaths present that William G. Ileaton, on the — day of July, 1882, in the said county, one…

<p>1. By section 4 of chapter 107 of the Acts of the Legislature of 1877 it is clearly manifested, that the legislative intent was to prohibit-a druggist, unless he had the license mentioned in the first section, from selling spirituous liquors, wine, &c., except only in case he sold alcohol in good faith for medicinal purposes, or alcohol or other spirituous liquors, or wine upon the written prescription of a practicing physician, which prescription must have all the requisites prescribed in said section, (p. 799.)</p> <p>2. A person although a druggist may be convicted on an indictment found under the first section, unless he can show, that as such druggist he had complied with all the requirements as to the sale of spirituous liquors, &c., provided by the fourth section ; but if convicted on such indictment, only the penalty prescribed for a sale without a State-license could be inflicted, and not the heavier penalty prescribed for the unlawful sale by a druggist as such. (p. 800.;</p>

GREEN, Judge, furnishes the following statement of the case: The entire record in this case is as follows: “West Virginia, Jackson County, to-avit: “At a circuit court held for said county, at the court-house thereof, on the 10th day of March, Í883, the following order was made and entered of record, to-wit: “ ‘Warren Miller esq., having been this day guilty of a contempt to the court in the presence thereof, it is considered that for his said contempt he be and is fined by…

<p>1. If on the trial of a prisoner in a certain county for the forgery of a certain writing alleged to have been committed in that county, it be proved that the said writing was found in the possession of the prisoner in the said county where he had uttered or attempted to utter the same as true, and there be no evidence to show that the forgery of said writing was committed in any other county, the jury from these facts may infer that the forgery of said writing was committed in that county, (p. 813.)</p> <p>2. A jury empanelled and sworn in a felony case is, while not present in court, by the law committed to the custody of the sheriff or other officer, until it is discharged, without any special order of the court committing it to his care. (p. 812.)</p> <p>3. While it is customary for the circuit court engaged in the trial of a felony case before its adjournment until the next day to administer to the sheriff or some of his deputies the usual oath, that he or they “will keep the jury together, and neither speak to them nor permit any other person to do so, until they return into court,” yet there is no law requiring the court to do so, and if the same be done, no additional duty or responsibility is thereby imposed upon the sheriff or other officer, (p. 812.)</p> <p>4. It is not error in the circuit court to refuse to set aside a verdict in a felony case, because it appears by the record that during the trial the court on a certain day before its adjournment administered such oath to the deputies of the sheriff, and that on the next day the jury appeared in court “in charge of the sheriff,” pursuant to their adjournment, (p. 812.)</p> <p>5. An instruction to the jury, based upon a state of facts wholly unsupported by the evidence adduced upon the trial is properly rejected, although it may correctly propound the law upon the assumed statement of facts.</p>