Volume 24 — West Virginia Reports

GREEN, Judge, furnishes the following statement of the case: On August 30, 1878, James Logie brought an action of assumpsit in the circuit court of Jefferson county against G. ~W. Z. Black.

<p>A special commissioner appointed by a decree to make sale of land, who makes the sale and takes the purchase-bonds payable to himself as commissioner, has no authority to sue on or collect said bonds unless specially authorized by the court to do so, and if he flies his bill to enforce the payment of such bonds and fails to aver therein such authority his bill will be held insufficient ■ on demurrer.</p>

<p>1. It is a cardinal rule in equity that all persons materially interested either legally or beneficially in the subject-matter of the suit, must be made parties to the suit. (p. 35.)</p> <p>2. In a suit in equity brought by one legatee against the administrator of the testator to have his legacy paid, when the fund out of which it is to be paid is not definitely ascertained, all the legatees having an interest in such fund must be made parties to such suit. (p. 35.)</p>

Woods, Judge, furnishes tli e following stilt cm ent of the case: This was an action of trespass on the case, brought by James W. Cooper, as the administrator of William Patton deceased, against- the Pittsburgh Cincinnati and St. Louis Railway Company, to recover damages for the negligence of the defendant whereby the said Patton lost his life.

Woods, Judge, furnishes the following statement of the case: On the-day of-, 1883, Othilie Dickesohied brought against the Exchange Bank of Wheeling, in the circuit court of Ohio county, her action of detinue, to recover the sum of seven thousand four hundred and ninety-six dollars and seventy-five cents of silver coin contained m fourteen linen bags, which had been left with it for safe keeping on the-day of March, 1883, by one Wenael Dickesohied, who afterwards stated it…

Snyder, Judge, furnishes the following statement of the case: In the year 1823, John Baker died testate in Jefferson county, leaving a widow and several children. By his will he directed his executors to sell his real estate and loan the proceeds during the minority of his children. On October. 27, 1823, Baker Tapscott, a son in-law of the testator, had the will probated in said county and qualified as sole executor.

Gkeen, Jud&e, furnishes the following statement of the ease: Virginia Fulton, Presley W. Iliett, Martha Johnson and Khuhama Darling, and also Thomas G. Rector, James H. Rector, Enoch Rector and Emma H. Rector, infants who sued by their next friend Thomas Rector, brought an action of ejectment against Joshua Johnson in the circuit court of Wood county to recover a certain tract of land containing three hundred acres more or less in said county.

Geeen, Judge, furnishes the following statement of the case : At August rules, 1882, Joseph Moreland, trustee, The Morgantown Bank and The Second National Bank of Mor-gantown filed their hill in the circuit court of Tucker county against Minerva J. Metz and Elias Metz her husband.

Johnson, Piiesident, furnishes the following statement of the case: The plaintiffs filed their bill in May, 1879, in the circuit court of Marion county against P. D. Basnett & Co., Jesse Hunt, and others. The bill alleged the recovery of a judgment for five hundred aud ninety-six dollars and twenty-five cents and costs againstB.

Geeen, Judge,furnislies tliefollowing statement of tlie case: At February rales, 1883, in tlie circuit court of Monroe county the following declaration in ejectment was tiled : “State oe West Virginia, “Circuit Court oe Monroe County to-wit : “Mary E. Tomlinson, James A. Tomlinson, William II. Tomlinson, John A. Tomlinson, Joseph II.

<p>The opinion of the Court contains a sufficient statement of tbe case.</p>

<p>1. Under the provisions of section 128 chapter 226 Acts of 1872-3, as amended by chapter 63 of the Acts of 1877, the county court lias no authority to grant an appeal from the judgment of a justice unless the party seeking the appeal shows good cause for his not having taken such appeal within ten days from the rendition of such judgment; and the good cause required to he shown, must be such as would authorize the granting of a new trial, as for instance, fraud, accident, surprise or some adventitious circumstance beyond the control of the party, (p. 182.)</p> <p>2. When the party has full knowledge of the facts upon which his rights depend and he fails to take his appeal within ten days, because he was mistaken in the legal consequences flowing from *' such facts, he will not be entitled to an appeal, upon an application to the county court, on account of such mistake of law, although such mistake was produced by the advice of counsel, (p. 185.)</p>

<p>.1 A bill of exceptions to the judgment of the trial-court granting or refusing a new trial, on the grpund that the verdict is or is not warranted by the evidence, should properly in every ease state the facts proved on the trial and not the evidence, (p. 195.)</p> <p>2. If the bill is in form a certificate of the evidence and there is no inconsistency or conflict therein, the Appellate Court will regard and treat it as tlie equivalent of a certificate of the facts. But if all the evidence is introduced by the exceptor, the Appellate Court will not review the action of the court below refusing a new trial, (p. 196.)</p> <p>3. Where the bill, though improperly, states the evidence and not the facts, and the evidence is conflicting, the Appellate Court will not decline to consider it in a ease in which, after rejecting all the conflicting parol evidence of the exceptor and giving full faith and credit to all the evidence of the exceptee, the decision of the trial-court still appears to’ be wrong, (p. 196.)</p> <p>4. But where the evidence in such ease is certified, and all the material evidence of the exceptor is parol and in conflict with that of the exceptee, so that when the exceptor’s parol evidence is rejected, the action of the trial-court will appear to be plainly right, the Appellate Court will not consider such certificate or review the action of the trial-court. And when the evidence is of such character the trial-court cannot be required to certify either the facts or the evidence, (p. 196.)</p> <p>5. If an inferior court erroneously refuses to sign a bill of exceptions to its judgment in granting- or overruling a motion for a new trial, on the ground that the verdict is or is not warranted by the evidence, it may be compelled to do so by mandamus from the Appellate Court. But it will not be required to do so, unless the facts or the evidence, which it is alleged the court erroneously refused to certify, are set forth in the petition for the mandamus ' or in some proper manner brought before the Appellate Court, so that it may determine therefrom whether or not a prima facie case of error has been affirmatively made out. Otherwise the writ of mandamus nisi will not be awarded, (p, 198.)</p>

<p>An insolvent husband transfers to his wife’s brother by deed for an alleged valuable consideration all his personal property; soon thereafter the said brother transfers the said property in like manner to another brother, and the latter immediately transfers it to his sister, the wife of said insolvent husband, as a gift in consideration of fraternal affection. In a controversy between the wife and the creditors of the husband as to the right to have said property subjected to the payment of debts contracted by the husband before the transfer by him. Held :</p> <p>I. The burden of proving that the transfer by the husband to the brother was bona ficle and for a valuable consideration rests upon the wife and not upon the creditors. ¡</p> <p>II. In a suit by the creditors of the husband to subject said property to the payment of their debts the grantee of the husband is not a necessary party, because the conveyance, notwithstanding it may be void as creditors, will be, nevertheless, valid between the parties to it. (p. 203.)</p>

Green, Judge, furnishes the following statement of the ease: On April 17, 1875, John I). Harper sued out of the clerk’s office of Pendleton county court a summons against Sampson Snyder, David Harman (of Samuel) Henry Snyder, Martin V. Bennett, Joseph Harman and Samuel Harman to answer the plaintiff of a plea of trespass, assault and battery, damage one thousand dollars. On the return day of said summons at the June rules the declaration was filed.

Green, Judge, furnislies the following statement oí the case : Jacob S. Wamsley filed his bill at the December rules, 1880, in the circuit court of Randolph county, in which he alleged, that on the 7th of February, 1877, Jacob Ii.

<p>1. Ail appellant cannot on Ills motion have a decree reversed which is not to his prejudice, (p. 232.)</p> <p>2. As between the judgment-creditor and debtor the statute with regard to docketing judgments has no application or force. The judgment-liens in their priorities should be fixed according to the dates of the judgments, (p. 232.)</p> <p>3. In a suit to subject real estate to the payment of the liens thereon it is not necessary to ascertain the value of the real estate before its sale is ordered, (p.232.)</p> <p>4. On a motion to re-commit the report of a commissioner in chancery, if the previous neglect or contumacy of the party render it proper to overrule his motion, so far as it goes to open the account anew, he may nevertheless be permitted to show himself entitled to credits not considered by the commissioner, if it appears probable from the evidence in- support of his motion, that he is entitled to such credits, (p. 233.)</p>

<p>1. Where litigants were properly in court before the late civil war was commenced, and the parties thereto, or some of them, were on opposite sides of the military lines, as soon as the war actually commenced, the proceedings in the suit'or action by public law instantly ceased, and no further step could be legally taken, as long as such a condition of things existed, (p. 237.)</p> <p>2. It is just as necessary to the due administration of justice, that' each litigant should be free to attend the court at every step taken in the progress of the suit, whether in an inferior or in an appellate court, as it is that process should be served upon a defendant to bring him into court in the first instance, (p. 237.)</p> <p>3. If during the war the supreme court'of appeals of Virginia rendered a decree in a cause, the parties to which resided on opposite sides of the military lines and were consequently enemies to each other, such decision is without legal validity, (p.237.)</p>

<p>1. To constitute such a possession, as will bar the title of the legal owner to land, it must be adverse, actual, visible and exclusive, continuous and under a claim or color of title. If any one of these constituents is wanting, the possession will not effect a bar of the legal title, (p. 243.)</p> <p>2. Where a purchaser enters into possession of land under an execu-tory contract, which leaves the legal title in his vendor and contemplates a further conveyance of the complete title, his entry will be in subordination to the legal title ; and in such case, as also in the case of lessee, trustee and other similar cases where one is in under the owner of the legal title, a privity exists, which precludes the idea of a hostile or tortious possession, that could silently ripen into an adverse possession under the statute of limitations, (p. 243.)</p> <p>3. The possession of a purchaser under an executory contract is not adverse to his vendor, although he has paid all the purchase-money and used and occupied the laud for his exclusive benefit. His contract, being executory and made in contemplation of a further conveyance of the legal title, recognizes the title in his vendor, and his holding will be regarded as in subordination thereto and not adverse. But where the purchaser is in possession under a complete legal title, such as a deed purporting to convey the land, he will be considered as holding adversely to all the ‘.world including his vendor from whom his title and possession are derived, (p. 244.)</p> <p>4. The most usual modes of actual possession is by occupancy, use or enjoyment, residence, cultivation, enclosure and improvement, (p. 244.)</p> <p>5. Adverse possession in any case, in order to effect an ouster of the owner, must in its nature possess such notoriety, that the owner may be presumed to have notice of it and of its extent. It must be open, visible and exclusive, (p. 245.)</p> <p>6. An adverse possession must be continuous and uninterrupted. There can be no constructive possession against the owner. When there is no actual possession, the law ascribes the possession to the owner. Consequently, if at any time during the statutory period the adverse claimant does not continue in the possession, so that he may be sued as a trespasser, he can not protect his claim by the statute of limitations, (p. 246.)</p> <p>7. The principal office of a claim or color of title is to define the boundaries and fix the extent of the adverse holding. If it is a mere claim of title, the adverse holding will be limited to the actual enclosure of the claimant. But if it is a deed or other paper-title, and the possession is exclusive, it will be regarded as co-extensive with the boundaries contained in s.ucli deed or papel. The color of title, however, may be good or bad, legal or equitable, (p. 247.)</p>

Woods, Judge, furnishes the following statement of the case: This was a bill filed in the circuit court of Ritchie county, by Daniel Boughner, against Cyrus IIall, Jonathan IT.

<p>1.A special commissioner in a chancery cause or a receiver of the court is simply an officer of the court, and as such he has no right to intermeddle in questions affecting the rights of the parties or the disposition of the property or funds in his hands. His holding is the holding of the court, and he cannot interfere in the litigation or ask for the revision of any order or decree affecting the rights or claims of the parties ; but when his own accounts or hi's personal rights are affected, he has the same means of redress, that any other party so affected would have. (p. 282.)</p> <p>2.Where a court makes a void decree, by which it directs its receiver to pay over funds in his hands, and for his failure to obey such decree attaches and imprisons him, such receiver is entitled to have such order of imprisonment reviewed, fp. 282.)</p> <p>3.A contempt of court is in the nature of a criminal offence ; and the proceeding for its punishment is criminal in its character. Consequently, the proceedings after the attachment issues are distinct from the suit, in which the contempt was committed, and should be entered separately and entitled in the name of State against the offender. If the inferior court fails so to enter the proceedings, that will be error for which the Appellate Court will on an appeal by the offender reverse so much of the decree, if improper on its merits, as orders his punishment, (p. 283.)</p> <p>4. It is no contempt to disobey an order or decree, which the court had no jurisdiction or legal authority to make. Such an order is void. (p. 283.)</p> <p>5. After the close of the term the parties to a cause, in which a final decree has been pronounced, are no longer in court; and no further order or decree as to them can be made therein, unless they are again brought into court by bill of review or by some other recognized legal method. After a final decree the court has no further jurisdiction either of the subject-matter or of the parties; and all subsequent orders or decrees entered without notice to the parties are void. (p. 284.)</p>

<p>Where a lease is sold with certain personal property thereon for a gross sum for both, and in the writing transferring the lease and the personal property a lien.is reserved for the payment of the purchase-money, as between the parties to the contract of sale and those having actual notice of it the lien will in a court of equity be declared to be valid and will be enforced by a sale of both real and personal property for the purchase-money of both. (p. 293.)</p>

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

Green, Judge, furnishes the following statement of the case: A tract of land in Ritchie county was charged on the assess- or’s books in 1866 in the name of Jacob Smith’s estate, the taxes on it being five dollars and sixty cents.

Green, Judge, furnishes the following statement of the case: At the February term 1856, of the county court of Ohio, Charles F. Spang and James McAuley, partners under the name of Spang & Co. recovered of Jamos H. Robinson one thousand and sixty-one dollars and twenty-nine cents, with interest thereon from November 30, 1853, till paid and four•teen dollars and seven cents costs.

Johnson, President, furnishes the following statement of the case: In September, 1869, Alexander Pickens filed his bill in the circuit court- of Barbour county against Benjamin McCoy, Oliver P. Bowers and Noah E. Warder. lie represented that on the 11th day of March, 1868, McCoy executed to him his obligation for one thousand dollars, payable on the 1st day of March, 1869, with'interest at three par cent, per annum, from the 11th day of March, 1868, to the 1st day of March,…

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

<p>1. It is settled in this State as a general rule with but few if any exceptions, that the testimony of jurors urill not be received to impeach their verdict, (p. 358.)</p> <p>2. When the bill of exceptions sets out the specific grounds on which the court sets aside the verdict of the jury, this Court will presume, unless the contrary appears, that it acted on those grounds alone and, if those grounds are clearly insuffi- ’ cient, this Court will reverse the order setting aside the verdict; but, generally, it takes a stronger case to reverse an order granting than it does one refusing a new trial, (p. 361.)</p> <p>3. A case in which it-was held that the circuit court erroneously set aside the verdict of the jury on the affidavit of seven of the jurors who tried the case..</p>

Johnson, President, furnishes the following statement of the case: On June 5, 1884, Joseph S. Miller, Auditor of this State, presented his petition in which he alleged, that he is and'was before and since January 1, 1883, Auditor of this State, and as such, is specially charged with the oversight and management of the assessment of taxes therein and with the oversight and control of the assessors of the various counties and assessment districts of said State; that…

<p>1. An order of the circuit court setting aside an award made by arbi - trators upon a submission in pa,is of matters as to which there is no action pending but which provides that the a yard shall be made the judgment of the court, is such a final judgment that a writ of error will lie from it to this Court, (p. 389.)</p> <p>2. It is not essential to give the court jurisdiction to enter the award as the judgment of the court in such case, that the agreement should declare, in terms, that the submission shall be entered of record, (p. 390.)</p> <p>3. Where a statute, which confers either a right or a remedy, is repealed by a subsequent statute that substantially re-enacts the provisions of the repealed statute, so that thjre is no time when the repealed statute was not the law, the two statutes-will be regarded as one continuous law, uninterrupted in its operation, (p. 391.)</p> <p>4. JSx parte affidavits may be read against or in support of objections to the entering' of an award as the judgment of the court, especially where they are not objected to in such court, but they should be given much less weight than testimony taken m court or on notice subject to cross-examination (p. 392.)</p> <p>5. The parties are bound to present every claim or matter embraced in their submission to arbitrators, unless it is expressly withdrawn before the hearing; and as to any-claim or matter thus embraced and not so withdrawn, an award general in its form Is conclusive against the party having such claim or matter in any.future controversy, (p. 393.)</p> <p>• 6. The arbitrators are not bound to pass upon matters not presented to them, although included in the submission, and the award will not be bad for that cause, (p. 394.)</p> <p>7. The opening of the case by arbitrators after the testimony has been closed and the case submitted for further evidence at the instance of one of the parties is primarily a matter in the discretion of the arbitrators and not of strict legal right; and unless they plainly err in the exercise of that discretion and it clearly appears that injustice has been done thereby, the court should not set aside their award for that reason, ip. 395.)</p> <p>8. A case in which an order of the circuit court setting aside an award upon ex parte affidavits is held to be erroneous, and, therefore, reversed by this Court.</p>

<p>Upon an action before a justice to recover damages for a breach of the official bond of a constable from the constable and his sureties, the amount of damages alleged and claimed in the summons, and not the penalty of such bond, must be considered in determining the jurisdiction of the justice.</p>

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

<p>1. A transfer of property either directly or indirectly by an insolvent husband to his wife during coverture is justly regarded with suspicion; and unless it clearly appears that it was entirely free from any wrong intent or purpose to withdraw the property from the husband’s creditors it will not be sustained, (p. 410.)</p> <p>2. In such transfers there is a presumption against the wife in favor of the husband’s creditors which she must overcome by affirm- * ative proof, (p. 410.)</p> <p>3. A case in which it is held, that an alleged loan of money by a wife to her insolvent husband was, under the circumstances, a gift and not a loan as against the creditors of the husband.</p>

<p>1. To constitute a partnership between parties who share in the profits, the interest in the profits must be mutual — each person must have a specific interest in them as a principal trader; he is not a partner merely because he receives a part of the profits as compensation for his services, (p. 415.)</p> <p>2. In every partnership there is a community of interest, but every community of interest does not create a partnership. In all cases of partnerships there must be a participation as principal. If the persons merely occupy the relation of principal and agent, or employer and employe, no partnership can be predicated Upon the fact that such agent or employe receives a share of the profits.for his services or other- benefits conferred, (p. 415. ></p> <p>A. employed B. to run and operate his grist-mill and agreed that for his services B. should have one half the tolls or profits derived from the mill; this did not create a partnership between A. and B. The agreement that B. should receive a share of the profits was simply a mode of payment and measure of his compensation.</p>

Johnson, President, furnishes the following statement of the case: On the 24th day of June, 1884, Henry M. Russell, a member of the bar of this Court, presented the following communication : “ To the Honorable Judges of the Supreme Court of Appeals of West Virginia. “As is well known to the Court, there was pending here on the 18th day of June, 1884, and there is now pending and undetermined, a proceeding by mandamus, at the relation of Joseph S. Miller, Auditor, against T.…

<p>1. Rent being payable quarterly, a landlord accepted the negotiable note of his tenant for the amount of the rent for the two previous quarters, not including interest thereon to the time when the notes became due. Held :</p> <p>The acceptance of these negotiable notes by the landlord operated as an agreement to suspend the right of distress, until there should be a default in the payment of these notes respectively ; and this implied agreement was sustained by a sufficient consideration, (p. 500.)</p> <p>2. The mere taking of a negotiable note of the debtor is no satisfaction of a precedent debt. It operates however to suspend the party’s right to sue on the old debt, until there is a right of action on the new ; and the reasons on which this rule is based make it as applicable to a debt, which is based on rent, as to any other debt; and the right of distress is suspended, as well as the right of a suit on such debt. (p. 502.)</p>

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

<p>Upon a bill filed to recover from the defendant a small sum of money, less than fifty dollars, alleged to have been received by him as guardian of the plaintiff and for a part of which he receipted for as such ; but there being no other evidence that he had been appointed guardian or acted as such ; and it appeared that very soon after receiving the money he paid over and accounted to the mother of the plaintiff, her natural guardian, for the whole of it; and there being no evidence that the plaintiff did not receive the benefit of the said money in her support and maintenance by her mother or that the defendant did not act in the utmost good faith ; nor that either the plaintiff or the mother had any other estate; and it also appeared that the whole of said money had been paid over by the defendant more than ten years before suit was commenced. Held :</p> <p>The plaintiff was not entitled to recover; and her bill should have been dismissed.</p>

<p>1. The application of a railroad company to condemn land for the use of its road, described the land to be taken, as a strip of land sixty feet in width, being thirty feet wide on each side of the center line of its road, containing 3 99-100 acres. Beginning at the point where the center line of said railroad as located, crosses the boundary line of the land-owner, and thence through his land situated on a certain creek, in a certain county, giving the courses and distances of the lines, the general direction of the curves, and the radius of each curve. ■ Held :</p> <p>I. That the land proposed to be taken was described with the “reasonable certainty” required by section 5 of chapter 18 of the Acts of the Legislature of 1881, and</p> <p>II. That the verdict of a jury ascertaining that a certain sum will be a sufficient conpensation for “so much of the real estate of the owner, mentioned and described in the within application as is proposed to be taken,” described the land with sufficient certainty, (p. 516.)</p> <p>2. The court having appointed commissioners for the purpose, they returned their report, whereby they ascertained that two hundred and twenty-flve dollars was a sufficient compensation for the land proposed to he taken, and for damages to the residue of the real estate of the land-holder, which sum the applicant paid into court, and the land-owner demanded that his compensation be ascertained by a jury, who by their verdict ascertained his compensation to be nine hundred and ninety-nine dollars ; and thereupon the court gave judgment in favor of the landowner against the applicant for the whole amount of the verdict with interest from the date of the judgment and costs, to which the applicant obtained a writ of error.' Held :</p> <p>I. That the judgment should have been rendered for seven hun - dred and seventy-four dollars, the excess found by said verdict, over the sum of two hundred and twenty-five dollars, ascertained by said commissioners, with interest from the date of said judgments and costs.</p> <p>II. That the error in said judgment could have been amended in the manner prescribed by section 5 of chapter 134 of the Code.</p> <p>III. That no motion having been made by said appellant to so amend said judgment, the same under section six of said chapter, will be amended in this Court, and when so amended, will be affirmed with damages and costs to the appellee, as the party substantially prevailing, (p. 517.)</p>

<p>1. Certiorari is an extraordinary remedy resorted to for the purpose of supplying a defect of justice in cases obviously entitled to redress and yet unprovided for by the ordinary forms of proceeding. (p. 520.)</p> <p>2. The general rule is, that upon certiorari to an inferior court the court awarding the writ will only inquire into errors and defects which go to the jurisdiction of the court below. But in this State, if the inferior tribunal proceeds in a summary man-nor and' not according' to the course of the common law, and there is no remedy by appeal or writ of error, then the courts will consider other than jurisdictional questions, (p. 520.)</p> <p>3. It is well established as a general rule that when the party aggrieved can obtain redress by appeal or writ of error, he will not be allowed this unusual remedy. And in cases where he has permitted the time for appeal to expire, certiorari will not issue for relief, unless upon a special showing unmixed with any blame or negligence on the part of such party, (p. 521.)</p> <p>4. The provision of section 12, article VIH of the Constitution of 1872 of this State, which declares that “the circuit courts shall have supervision of all proceedings before the county courts, and other inferior tribunals, by mandamus, prohibition and certio-rariis restrained and limited in civil cases cognizable by a justice, with certain specified exceptions, by section 29 of the same article of the Constitution, which provides, that the decision of the county court shall be final in all eases of appeals from ' the judgment of a justice. By this inhibition it was intended not only that the circuit court should not supervise such cases by appeal or writ of error, but that all remedy should be denied by that court in such cases, (p. 522.)</p> <p>5. Where an action was tried before a justice in 1876, and no effort was made to have the case re-tried by appeal to the county court, the party against whom the judgment was rendered in such case will not, after the time allowed for an appeal to the county court has expired, be permitted to have the case supervised by the circuit court by certiorari, even if the judgment of the justice is manifestly erroneous ; it appearing that the justice had jurisdiction over the subject-matter and the person .applying for the certiorari.</p>

<p>1. Where there is a contract for the sale of a tract of land by the acre, which is represented to contain a specified number of acres, and it is ascertained there is a deficiency in quantity, a court of equity of will even after conveyance is.executed abate the value of the deficiency at the stipulated price by the acre from the purchase-money remaining unpaid, (p. 539.)</p> <p>2. A court of equity will not stay or prevent the collection of the purchase-money for the sale of land on the. ground of defect of title, after the vendee has taken possession under a conveyance from his vendor with covenants of general warranty, unless the title is questioned by suit either prosecuted or threatened ; or unless the purchaser can show clearly that the title is defective. (p. 540.)</p> <p>3. A. being the owner of a tract of land supposed to adjoin a tract of land owned by B. but which in fact covers a part of B.’s tract, which fact is well known to A., who afterwards enters into a contract with, and obtains a conveyance witli covenants of general warranty from B. for all of his tract at a specified price by the acre, he will not be entitled to withhold payment of the purehase-inoney of so much of B.’s land as interlocks with A.’s land, upon the ground that A.’s title to the interlock held by him, before he made such purchase, is an older and better title than that derived from B., except upon the clearest proof, that the title so acquired from B. was absolutely defective. (p. 539.)</p> <p>4. A commissioner’s report, if erroneous upon the face thereof, may be objected to at the hearing although not excepted to, but unless excepted to, it cannot be impeached at the hearing by adult parties on grounds, which may be affected by extraneous evidence ; and if such adult parties fail to except to the report they will be presumed to have acquiesced in its correctness, not only as far as it settles the principles, on which the account is stated, but also in regard to the sufficiency of the evidence upon which it is founded, (p. 540.)</p> <p>5. After a commissioner has completed his report he is required by section 7 of chapter 57 of the Acts of 1882, to retain it ten days for examination, unless otherwise ordered by the court or agreed by the parties, during which time any of the parties may except thereto; and if excepted to, it is made the duty of the commissioner to return the exceptions with such remarks as he may deem pertinent, and the evidence relating thereto, (p. 541.)</p> <p>6. If no exceptions be filed to a report, while the same remains in the hands of the commissioner, he is not required to return with his report the evidence which was before him, and on which he acted. • (p. 541.)</p> <p>7. If the report of the commissioner is not excepted to, while it remains in his hands, the evidence that was before him, on which he acted, forms no part of his report, unless made so by ■ the report itself or by the order of the court, (p. 541,)</p>

Johnson, President, furnishes the following statement of the case: In July, 1878, the plaintiffs filed their bill in the circuit court of Barbour county against John M. Lake, Henry Deahl, Jesse B, Poling, late constable of BaYbour county, Martin Gr.

Green, Judge, furnishes the following statement of theease: Thankful Johnson and Benjamin Johnson on November 3, 1883, presented to this Court their petition asking an appeal from a final decree of the circuit court of Wetzel county, made on the 18th day of October, 1880, in a cause, wherein John Moore and Wilford Moore were complainants, and Thaukful Johnson and Benjamin Johnson were defendants. The appeal prayed for was granted on November 3, 1883, by this Court.

Johnson, President, furnishes the following statement of the case: This case was formerly before this Court and the judgr ment of the court below was reversed, and the ease was remanded for a new… Held: reversing the judgment, that the notice was good (22 W. Va. 308).

Green, Judge, furnishes the following statement of the case: The city of Parkersburg by its mayor and council on July 12, 1881, awarded to Martin liare a contract for furnishing good, coarse screened gravel for the city, he being the lowest bidder for one thousand yards with the privilege of more at the same price, fifty-nine cents per cubic yard, the said gravel to be delivered from time to time, as might be called for by the committee on streets and alleys, but a good and…

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

<p>1. In proceedings by the commissioner of school lands, under the statute — chapter 134 Acts 1872-3 — for the sale of forfeited lands for the benefit of the school-fund, the former owner of such lands, having no rights to be affected and no interest in the lands or the proceedings for the sale, is not entitled to be made a party in the circuit court; and if he is inadvertantly made a party in that court, that will not give him the right of appeal to this Court.</p> <p>2. The syllabus in MeOlure v. Maitland, supra, approved and applied.</p>

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

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

<p>1. The order, in which the different kinds of property, personal and real, constituting the estate of a testator, and which are liable to the payment of debts, will be subjected to debts, stated in the opinion, (p. 599.)</p> <p>2. The devisee of real estate not charged with the payment of debts, when such estate has been previously subjected to the debts of the testator by creditors, may resort to a court of equity to have the real estate devised, subject to the payment of debts, to ' another devisee, sold to reimburse him tor the value of the real estate so subjected to debts by creditors (p. 600.)</p> <p>3. In a suit in equity to enforce a purely equitable demand the defence of the statute of limitations can have no application, of itself, or by analogy to any limitation in courts of law. Such cases must be determined by courts of equity upon rules and principles of their own. (p. 600.)</p> <p>4. While in such cases laches and lapse of time are elements which cannot be safely disregarded, they are not always the most important considerations. Where the lapse of time is less than twenty years, the most important considerations in support of • tliig defence generally are : First, the death of the parties to the original transaction to be investigated, or the intervention of the rights of third persons; second, the loss of evidence when the transactions are complicated, so as to render it difficult if not impossible to do justice; and, third, the character of the evidence; for instance, if important facts rest upon mere parol testimony this will be a consideration of much weight, but if upon written or documentary evidence it will be entitled to very little weight, (p. 601.)</p> <p>5. While ignorance of law will not prevent the operation of the statute of limitations, the rule is different in equity, a court of conscience ; in such court moral as well as legal grounds may be considered, and a satisfactory moral excuse may be entertained, although it resulted from ignorance of law. (p. 605.)</p>

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

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

<p>So much of section 8 of chapter XII of the Acts of 1881, as directs the assessor and county clerk in making out the land-books for the year 1881, to disregard all changes made by the county court in the value of any tract of land made after the first clay of July, 1876, is judicial legislation and, therefore, unconstitutional and void.</p>

Green, Judge, furnishes the following statement of the case: John H. Burns in August, 1871, was arrested upon a warrant for horse-stealing by a justice, John Campbell, of Clay township in Hancock county and brought'before said justice at the court-house of said county in Poe township on August 12, 1871, and on his motion a hearing of the case was continued until August 16, 1871, at one o’clock p. m., and said John 1ST. Burns and John C. McCowu, his surety, entered into,…

Green, Judge, furnishes the following statement of the case: The bill in this cause was filed in the circuit court of Brooke county by James F. Watts and George MeWha, administrators of Nicholas Stansbury, for the purpose of subjecting the real estate of the decedent to the payment of his debts, his personalty being insufficient.

Johnson, President, furnishes the following statement of the case: This'is a suit in chancery to compel the specific performance by a principal of a contract for the sale of real estate made by his agent.

<p>1. An appeal from the judgment of a justice, -which under the law is tried de novo in the appellate court, is a continuation of the same action, (p. 655.)</p> <p>2. A declaration upon a detinue-bond executed under section 1 of chapter 102 of the Code, which does not allege, that the plaintiff in the action of detinue had possession of the property after the bond was executed, is fatally defective, (p. 656.)</p>

<p>1. In an action on a sheriff’s bond, executed under the statute in force in 1862, it is not necessary, that the declaration should allege, that the levy, which the sheriff was charged with collecting and failing to pay over to the party entitled to receive it, was made by a majority of the justices of the county, or that they had all been summoned to attend the court, at which the levy was made. If the failure to summon the justices or the fact, that a majority of the justices were not present, when the levy was laid, could avail the defendant, it must be relied on as a defence, (p. 659.)</p> <p>Qucere : Can a sheriff, who has collected an illegal levy, which was not superseded by the tax-payers in the mode prescribed by the statute, and which was voluntarily paid by the taxpayers, keep it in his pocket and refuse to pay it because it was illegal? (p.659.)</p> <p>2. In a declaration on an official bond of a sheriff it is not necessary to allege the non-payment of the penalty of the bond by the obligor; it is sufficient in the assignment of the breach to allege the non-payment of the sum demanded by the principal in the bond, whose duty it was to pay it. ip. 660.)</p> <p>. 3. In a case tried by a jury, no matter how many exceptions are taken to rulings of the court made during the trial, unless a motion is made before the trial-court to set aside the verdict, and that motion is overruled, all such errors saved will by the appellate court be deemed to have been waived, ip. 661.)</p> <p>4. A new trial for errors committed during trial can only be had after motion made in the trial-court and overruled ; as this Court will not ex mero motu grant a new trial in case no such motion was made in the court below, (p. 661.)</p>

Green, Judge, furnishes the following statement of the case: This was a proceeding under chapter 18 of the Acts of 1881, instituted by the Grafton and Greenbrier Railroad Company to take portions of the lands of numerous persons in Taylor county, through -which said railroad would run.

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

<p>1. Actual possession of a part of a tract of land under a bona fide claim and color of title to the whole, is such possession of the whole, or so much thereof as is not in the adverse possession of others, as will entitle a party in the actual possession of such part to recover in an action of unlawful detainer the possession 0 of the residue against a wrong-doer who enters on such residue without having the legal right to do so. But the owner of such residue or those authorized by him may lawfully enter upon such residue without force and hold the same. (p. 685.)</p> <p>2. A paper purporting to be a copy of a will executed in, and certified by the officers of, another State which has been spread upon a will-book of the county court of one of the counties of this State with a certificate of the clerk of such county court that it has been duly admitted to record, but it appears upon the face of said record that said certificate has been erased : Held :</p> <p>In the absence of any explanation, that said copy is not a recorded paper and cannot be used as evidence, tp. 688.)</p>

<p>1. A decree made upon the hearing on the merits, which settles and adjudicates all the matters in controversy between the parties, is such a final decree that a bill of review will lie to it, although much may remain to be done before it can be completely carried into execution, (p. 694.)</p> <p>2. A bill of review will lie to a decree in a creditors’ suit, which ascertains the amounts and priorities of all the debts sought to be established in the cause as liens on real estate, and which orders said debts to be paid and the sale of the real estate on which said debts are adjudged to be liens, (p. 696.)</p> <p>3. A bill of review will not lie to review such decree, unless it is exhibited within three years from its date, although it may complain of errors committed in subsequent decrees of the cause, pronounced within three years from the time such bill is exhibited. (p. 696.)</p> <p>4. Where a sale of real estate is made under a decree of court and confirmed without exception, such sale is not void because made by a commissioner not previously authorized to make it; and, therefore, a bill of review does not lie to correct the irregularity of such sale. (p. 696.)</p>

<p>1. An injunction will be dissolved on the hearing, if the answer fully, plainly and positively denies all the material allegations of the bill on which the injunction was founded and there is no proof to establish said allegations, (p. 700.)</p> <p>2. To warrant the interference of a court of equity to restrain a trespass, two conditions must co-exist: First, the plaintiff’s title must be undisputed or established by legal adjudication; and, second, the injury complained of must be irreparable in its nature, (p. 701.)</p> <p>8. It is not, in such case, sufficient that the bill contains mere gen- • oral averments of irreparable mischief, but the facts constituting such mischief must be set forth, (p. 701.)</p> <p>4. A case in which an injunction granted to restrain the cutting and removing of the timber from land claimed by the plaintiff was wholly dissolved.</p>

Woods, Judge, furnishes the following statement of the case: In 1875, L. D. Pappenheimer & Co. filed their bill in the circuit court of Lincoln county against Henry Roberts and .his wife Catharine Roberts, Thomas Roberts and his wife Emily Roberts, and John Wysong, alleging that on March 3, 1873, they recovered in the said, court against said Henry Roberts and John Wysong, as partners, under the firm of Roberts & Wysong, a judgment for one hundred and sixty-tliree dollars…

Woods, Judge, furnishes the following statement of the case: This was a suit brought in May, 1874, in the circuit court of Jackson county by Henry J. Fisher against John L. Hamilton and Thomas Brown, to enforce a vendor’s lien upon a certain parcel of land then claimed by, and in the possession ot said Brown.

<p>It is not necessary before a decree is rendered for the rental of the land to discharge a lien thereon, to have the amounts and priorities of all the liens thereon ascertained and fixed, (p. —.)</p>

Johnson, President, furnishes the following statement of the case: Thomas J. Duncan, Francis Ford, and John ~W. Elder, partners as Duncan, Ford & Elder, filed their hill in 1879 in the county court of Kanawha county to enforce the lien of their judgment against the lands of Silas K-. Custard.

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

<p>1.A court will not pass upon the constitutionality of a statute, unless a decision upon that very point is necessary to the determination of the case. (p. 749.;</p> <p>2.The general rule, is that where a bill of exceptions claims, that illegal evidence was admitted, or that the verdict of the jury was contrary to the evidence, and then proceeds to set out the facts to show it to be so, it must not rest there but go further and allege that the facts so stated were all that were proved in the case or on that point, or some equivalent allegation, so that the court may fairly conclude that there were no other facts bearing on the question. But if without such allegation the record clearly shows that fact, then such allegation is not required, (p. 750.)</p> <p>3.If the preliminary evidence offered to show the admissibility of other evidence tends to prove such admissibility, it is not the province of the court to pass upon the sufficiency of such evidence ; this is a question for the jury. (p. 752 ) 4' Where a portion of a written document is proven to have been destroyed and the other portion lost or in the hands of a nonresident of the State, and there is no suggestion that such destruction was fraudulent, the contents of such document may be proven by secondary evidence, (p. 754.)</p> <p>5. In such case it is not necessary to exhaust all possible evidence of the loss or destruction of such document. The sufficiency of such evidence is a preliminary question addressed to the discretion of the court; and the object of it is merely to establish a reasonable presumption of the loss or destruction, (p. 754.)</p>

<p>1. The cause of an injury in contemplation of law is that which immediately produces it as its natural consequence; and, therefore, if a party be guilty of a default or act of negligence which would naturally produce an injury to another, but, before such injury actually results, a third person does some act which is the immediate cause of the injury, such third person is alone responsible for the injury, (p. 759.)</p> <p>2. Where objection is made to the introduction of evidence and overruled by the court, the appellate court will hold such objection as having been waived by the exceptor unless the ruling of the court is excepted to. (p. 761.)</p> <p>3. Where it is intended to have the appellate court review the rulings of the circuit court upon the question of the sufficiency or insufficiency of the evidence to warrant the verdict of the jury, the bill of exceptions should contain a certificate of the facts proved not of the evidence produced on the trial, especially where the evidence is conflicting, (p. 762.;</p>

<p>1. In a suit for the specific execution of a parol contract for the purchase of land, where neither the contract nor proof identifies or defines the tract or boundaries of the land nor 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. 766.)</p> <p>2 A parol contract to sell and convey “forty acres off'the Spring Fork end of my tract of one hundred and forty-seven acres on Beech Fork in Calhoun county ” is too vague and indefinite to be specifically enforced, (p. 767.)</p>

Johnson, President, furnishes the following statement of the case: On the 9th day of April, 1883, the defendant was indicted in the circuit court of Ohio county for the murder of Guen-ther Schuchardt, in these words: “The State oe West Vik&inia : “First Judicial Circuit, Ohio County, to-voit: “In the Circuit Court .of said County : “The grand jurors of the State of West Virginia, in and for the body of the county of Ohio, and now attending the circuit court of the said…

Green, Judge, furnishes the following statement of the case. This is an indictment found by the grand jury of Mineral county against the Baltimore and Ohio Railroad Company for laboring in its trade and calling of common carrier on. a Sabbath day to-wit, on May 27, 1873, in said county by running over its tracks its engine and cars, the same not being-used in household work or other work of necessity or charity.

<p>1. It is not sufficient, to set aside a verdict in a misdemeanor case, where there was no misconduct on the part of the jurors, for one to say in the presence of two of the jury, “the defendant is in a tight place.” (p. 803.)</p> <p>2. It is not such surprise, as will justify setting aside the verdict of the jury in a perjury case, that the prosecuting witness testified upon an immaterial matter differently from his testimony in the case, in which the false oath was taken, (p. 804.)</p> <p>3. Whatever may be the. rule in this State as to the quantity of evidence necessary to convict for perjury, where the defendant is not examined in his own behalf, when he is sworn before the jury and testifies in his own behalf, it is the exclusive province of the jury to weigh his testimony with that of the prosecuting witness, and if there is no other testimony, the jury can convict him, if satisfied of his guilt beyond a reasonable doubt. The manner of the defendant while testifying and the unreasonableness of his story might amount to the strongest corroboration of the evidence of the prosecuting witness, (p. 806.)</p>

Woods, Judge, furnishes the following statement of the case: At the March term, 1883, of the citeuit court of Cabell county the Chesapeake and Ohio Railway Company was indicted for obstructing a public road.

Woods, Judge, furnishes the following statement of the case: At the March term, 1884, of the circuit court of Taylor county, Carter Smith was indicted for the murder of one George McDaniel. The indictment contained two counts, in the precise form prescribed by section- 1 of chapter 118 of the Acts of the Legislature of 1882.