Volume 25 — West Virginia Reports

GeeeN, Judge, furnishes the following statement of the ease: At the November term, 1882, the grand jury of Preston county found an indictment in the circuit court of Preston against Prank M. Dent for practicing medicine in this State without having complied with the provisions oí section 9, of chapter 93 of the Acts oí 1882, in violation of section 15 of said act. The defendant moved to quash this indictment.

GREEN, Jud&e, furnishes the following statement of the case • This was an action of debt brought in the county court of Pleasants county, on June 10, 1879, by the State of West Virginia, successor to the Commonwealth of Virginia, suing for the use of Elizabeth Rawson against Sarah A. Rawson, her late guardian, and Jesse Pride, the security in her guardian bond.

SNYDER, Judge, furnishes the following statement of the case: The Northwestern Virginia Agricultural Society became a corporation of this State by act of the legislature in 1866, and in 1871, it was and still is the owner of about twenty-five acres of land, known as the “Fair-Grounds,” on Wheeling Island in the city of Wheeling, Ohio county.

Snyder, Jud&e, furnishes the following statement ot the case: The board of supervisors of Jackson county, by orders made and entered of record September 2,1867, and October 7,1867, appointed R. S. Brown and others commissioners to contract for the building of a bridge across Big Sandy creek near Ravenswood, in said county, in the manner and upon the terms and conditions specified therein.

<p>1. In 1802, the county court of Ohio county made this order : “ Deed from James Caldwell to John Young was proven in court to be the act and deed of said James Caldwell, who hath acknowledged the same in the presence of Samuel Wharton, and William Adcock, justices of the court of common pleas, and ordered to be recorded in p&rpetuam rei niemoriamThe said deed was thereuppn recorded in said county by the clerk who omitted to record said order, but added to said record the following certificate : “ A copy from the original which was proven in court at January term, 1802, by a certificate from under the hand and seal of office of Mathew Clarkson, mayor of the city of Philadelphia, and ordered to be recorded ” He also recorded with the deed a certificate of said Wharton and Adcock, that the deed had been acknowledged before them in Philadelphia, but no certificate of Clarkson, mayor, &c. Held :</p> <p>The said deed was a recorded instrument and a copy therefrom admissable in evidence in this State, (p. 59.)</p> <p>2. An affidavit, made in the city of Philadelphia in 1834 to the effect that affiant was well acquainted with a deceased person and his family, was offered in evidence in an action in this State in 1882, to prove that such deceased person died intestate and left but one child. In the absence of any proof showing that the person who made said affidavit was dead, and that there were no persons living whose testimony could be obtained to prove the facts stated in the affidavit, the court did not err in refusing to admit the affidavit as evidence, (p. 61.)</p>

Oreen, Judge, furnishes the following statement of the ease: On November 24, 1882, the Sterling Organ Company, a corporation of the State of Connecticut, brought an action of assumpsit in the circuit court of Ohio county, West Virginia, against 0. A. House.

Johnson, President, furnishes the following statement of the case: This is a suit in equity brought by Knott against Seamands in the circuit court of Cabell county in June, 1881.

<p>1.A plea and answer copied into the record by the clerk, no order of the court having been entered in the cause permitting them, or either of them to be filed, nor any order or decree recognizing them asfiled, are nota partof the record andean notbe considered by this Court, (p. 110.)</p> <p>2.A corporation must defend a suit brought against it in its corporate name; and a purchaser of stock will not be permitted to do so, unless the corporation has refused to defend, ip. ill.)</p> <p>3.If in such case the officers or agents of the corporation refuse to defend the suit, the court may allow such defense in equity to bo made by the stockholders, (p. 111.)</p> <p>4.The corporation, not the stockholders, is the legal owner of the corporate property, (p. 112.)</p> <p>6. Where a corparation was sued and its property attached in equity for a claim, and the corporation appeared and demurred to the bill, and a party filed his petition and asked to be made a party defendant and to be allowed to file his answer, which he was permitted to do, and in said answer he averred that he had purchased of one of the stockholders three fourths of all the stock of the corporation, and then proceeded to resist the plaintiff’s money-demand against the corporation, on motion of the plaintiff his answer was stricken from the record; and it did not appear that the corporation had refused to defend the suit. Held:</p> <p>The court did not err in striking- out the answer, (p. 112.)</p> <p>6. Where a demurrer was overruled, and the court in its discretion gave the defendant thirty days within which to answer, it was error for the court on the same day without an answer to decree against the defendant. (112.)</p> <p>7. A debtor cannot have a decree reversed confirming a sale of real estate for an error in the decree ordering the sale, when he has taken no steps in the court below before such confirmation to resist the same. But such decree, so far as it confirms the sale, may be affirmed, and so far as it orders a distribution of the proceeds of sale, may be reversed, (p. 112)</p>

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

<p>1. Ii upon the hearing of a writ of habeas corpus the court or judge is satisfied, that the offence, for which the prisoner was held, was committed within the jurisdiction of the court, the prisoner should not he discharged, although the process, on which he was arrested and committed, was informal and not in compliance with the law. (p. 122:)</p> <p>2. The jurisdiction of West Virginia is co-ex.tensive with the water of the Ohio river while confined within its banks, (p. 122.)</p> <p>3. The State of West Virginia in the proper county has jurisdiction of offences committed on a boat, which is afloat on the Ohio river while confined within its hanks, whether such boat is or is not fastened to some object on the bank. (p. 122.)</p> <p>4. P. opposite to Eavenswood in Jackson county West Virginia on the Ohio side of the Ohio river sold spirituous liquors in a boat, which was afloat on the river beyond low water mark but fastened by a rope to the bank. Held:</p> <p>The offense, if one was committed within the jurisdiction of West Virginia, (p. 122.)</p>

<p>1. A deed, in which some of the persons named therein as grantors, and which is acknowledged by them as such, but is not signed by them, Held:</p> <p>Not to be the deed of those not signing it. (p. 130.)</p> <p>2. A deed, in which a number of persons are named as grantors, and which is signed and acknowledged as their deed by others not mentioned in it, Held:</p> <p>Not to be the deed of those not named therein, (p. 130.)</p> <p>3. A deed conveying land lying in this State, in which it is recited that the grantors are “ of the county of Fayette in the State of Pennsylvania,” with a certificate of two justices of its acknowledgment before them endorsed thereon headed, “ Fayette county» ss.;” and also accompanied by a certificate under the seal of the court of common pleas of Fayette county, State of Pennsylvania, that the said two justices were at the time of said acknowledgment of Fayette county, in the State of Pennsylvania, was properly admitted to record in this State upon said certificates, it sufficiently appearing therefrom that the “ Fayette county” mentioned was of the State of Pennsylvania, (p. 131.)</p> <p>4. A reference hy the certificate of acknowledgment to the deed, as “ the within indenture” in such case, is sufficient to identify it as the deed which was acknowledged, without giving the date of the deed, and stating that it was signed by the grantor when the deed shows that it was in fact so signed, (p. 131.)</p>

<p>1. An appeal from a filial decree by a party entitled to appeal therefrom brings with it for review all the preceding int' rlocutory decrees, out of whicii any of the errors complained of in sueli final decree have arisen, (p. 134.)</p> <p>2. An appeal may be taken from an interlocutory order overruling a demurrer, by which the principles of the cause are adjudicated, but not until after a decree has been entered carrying those principles into- effect, (p. 135.)</p> <p>3 If, however, in such case the appellant complains not only of the error committed in such interlocutory order, but also of errors in the subsequent decrees, independent of those resulting merely from giving effect to such erroneous order, he can not appeal from such order unless he is also in a condition to appeal from such subsequent decrees, (p. 135.)</p> <p>4. Where a defendant in a chancery suit appears and demurs to the bill and his demurrer is overruled and a rule is given him to answer whicii he fails to do, and thereafter a decree is enteretl in the cause granting the relief prayed for in the bill, and such defendant obtains an appeal to this Court from said decree without having moved in the court,which renderedit,to havetheerrorscomplained ' of corrected and assigns and complains of errors insaid decree other than those resulting from the overruling of his demurrer. Held:</p> <p>This is a decree on a bill taken for confessed and this Court will not entertain the appeal but will dismiss the same as having been improvidently awarded, (p. 136.)</p>

<p>1. Where the facts and grounds actually exist, or the plaintiff has probable cause to believe they exist, on which an order for the arrest of the defendant is authorized by section 37 of chapter 106 of the Code, the plaintiff, who causes an arrest to be made under said statute, cannot be made liable in action of trespass for such arrest, merely because the affidavit and order of arrest are not regular and in proper legal form. (p. 144.)</p> <p>2. But in such case, the order of arrest is authorized only in a pending action or suit — this is made a condition precedent; and if a party makes an affidavit and causes an arrest, without the pend-ency of an action for his claim, his proceedings will be void for want of jurisdiction to issue the order of arrest and he will be liable for damages in an action of tresspass brought by the party arrested, (p. 146.)</p> <p>3. The rule for the measure of damages in cases where the malice necessary to sustain the action is such only as results from a groundless act, and there is no actual malice or design to injure and oppress, is to allow compensatory damages ; that is, damages to indemnify the plaintiff, including injury to property, loss of time and necessary expenses, counsel fees and other actual loss ; but not to allow vindictive or punitive damages to punish the defendant. (p. 146.)</p> <p>4. A ease in which the verdict of the jury was set aside by the appellate court because the damages found against the defendant ■ were plainly excessive, (p. 147.;</p>

Statement of the case by GkeeN, Judge : This was an action of debt brought by the plaintiff, Charles D. Colman, against the West Yirginia Oil and Oil Land Company, a corporation-of the State of Michigan, in the circuit court of Ritchie county. The summons was issued November 4,1875. The debt claimed in it was $9,080.10.

<p>1. When a suit is .brought in equity upon a claim, which is legal in its nature,by analogythestatuteof limitations will apply, (p. 182.)</p> <p>2. When the statute of limitations has begun to run against an ancestor, it will continue to run against his infant heirs,, unless otherwise specially provided by statute, (p. 182.) •</p> <p>3. When the cause of action arose twenty-five years before suit was brought, and the justice of the demand depended upon merely oral testimony as proof of payment of a debt, for which land was sold under a deed of trust, even if for the greater portion of the time those interested in "showing such payment were infants, equity would hesitate to grant relief, though the statute of limitations did not apply, (p. 182.)</p> <p>4. Where a court of e'quity erroneously canceled deeds, and ordered a conveyance to be made to the plaintiffs and directed a writ of pos session to issue to put them in possession of the land, and this Court reversed the decree on appeal granted without supersedeas, it will not here dismiss the bill, but will remand the cause with instructions to place the parties in statu quo and then dismiss the bill, (p-184.)</p>

Statement of the case by Woods, Judge: This was a chancery suit brought in the municipal court of Wheeling, in January, 1881, against the Mingo Iron Works Company and forty-eight other defendants, alleged to be stockholders therein, by Alexander Nimick, G-eorge P. McBride and John S. Slagle, partners trading under the firm of Nimick & Co., suing for themselves and on behalf of all other crrditors of said Mingo Iron Works Company, who would come in and contribute to the…

<p>To entitle a party to maintain a bill of review his bill must show that his interests have been prejudiced by the decree sought to be reviewed, what those interests are, and that he will be benefited by a reversal or modification of such decree.</p>

<p>1. The statute — ’sec. 3, ch. 73, Acts 1882 — authorizing a judge of the circuit court, in vacation, to issue a writ of prohibition, is constitutional. Such judge, being thus authorized to issue such writ in vacation, may issue a rule for such writ returnable before him and hear the same in vacation, and a writ of error lies from his judgment thus rendered in vacation to this Court.</p> <p>2. The writ of prohibition lies from a superior court not only to in_ ferior judicial tribunals, but to inferior ministerial tribunals possessing incidentally judicial powers and known as quasi judicial tribunals, and also in extreme eases to purely ministerial bodies, when they usurp and attempt to exercise judicial functions.</p> <p>3. Such writ lies from the circuit court to the county commissioners assembled in special session to ascertain the result of an election, under chapter 155, Acts of 1882, to prevent them from transcending their legitimate powers by examining witnesses and hearing evidence to determine whether the precinct-commissioners have certified and returned the votes of persons not entitled to vote with a view to rejecting such votes.</p> <p>4. Aside from the quasi judicial functions necessarily incident to their duties in determining that the ballots, poll-books and certificates of the election returns laid before them are genuine, that they are in fact the returns and substantially in the form prescribed by the statute, and to correct or have them put in form if they are not so, the duties of said commissioners are purely ministerial, and their judicial functions are limited to the acts prescribed in the twenty-first section of said statute. •</p> <p>5. The acts of said county commissioners must be based on the returns as certified to them from the several voting places of the county. The twenty-sixth section of said,statute has no application to their duties as canvasers of the election, the powers therein conferred apply alone to the final judges of elections in cases of contested elections.</p>

Statement by Gb,eeN, Judge : George W. Hutchinson in the year 1849 bought of his father-in-law, ¥m. A. Tefft, a two and a half acre lot lying near the town of Parkersburg on the southwest side of the Northwestern turnpike; and during the year 1849 he built upon it a residence, which is still standing. ¥m. A. Tefft died in the year 1850 intestate leaving as his heirs the wife of Gorge W. Hutchinson and a son W. A. Tefft, who on April 28th, 1852, made a conveyance of the…

Statement by Woods, Judge: In October, 1875, the Kanawha Valley Bank, on its own behalf and on behalf of all other judgment creditors of Alexander II. Wilson who would come in and contribute to the costs of the suit, filed its bill in the circuit court of Ka-nawha county, against said Alexander II. Wilson and his wife Mary E.Wilson, Josejoh B. Chilton and his wife Martha E. Chilton, William E. G-illison trustee and William C. Blaine, andP.W. Simpson, J. Brisben Walker, Alex.

Statement by Snyder, Judge: Action oí debt on the official bond of George Q. Black as collector of the city of Wheeling, brought May 19, 1879, by said city against said Black and W. 11. Woodward, R. A. McCabe, B. M. Eofi and T. II. Reed his sureties on said bond.

Statement of the case by Johnson, PRESIDENT: Daniel Lamb on February 13,1876, instituted his suit and at March rules, 1876, filed his bill in equity in the circuit court of Ohio county against A. J. Cecil, in which ho alleged, that on February 25, 1871, the Wheeling Savings Institution by order of its board of directors, made a general assignment of its property to him as its trustee for the benefit of its creditors ; and with his bill he exhibits the copy of said deed of…

Statement by Johnson, President: The bill filed in this cause by Daniel Lamb, trustee of the Wheeling Savings Institution, in the circuit court of Ohio county in March, 1876, was for the purpose of recovering some $7,841.50 alleged to have been improperly drawn from the said institution on February 23, 1871. The bill is substantially the same as that filed by the same trustee against A. J. Cecil in Lamb, trustee v. Cecil, swpra.

<p>Where the court has doubts of the right of the plaintiff to relief on the case stated in the bill, and a good cause for relief appears by the proofs, this Court will reverse the decree and give the plaintiff leave to amend his bill.</p> <p>Quaere 1. Are all the assets of an insolvent corporation a trust-fund for the payment of creditors of the corporation ?</p> <p>Qucere 2. if so, are the directors of the insolvent corporation trustees for the creditors'?</p> <p>Quaere 3. Can a board of directors of an insolvent corporation prefer creditors and themselves among the number?</p> <p>Qucere 4. Can a director of an insolvent banking corporation with full knowledge, that the corporation is insolvent and must close its doors,' under these circumstances withdraw his deposits from the bank ?</p> <p>See opinion of Johnson, President, infra.</p>

Statement of the case by Green, Judue : On February 14, 1871, the West Virginia Transportation Company entered into an agreement under seal with the Laurel Fork and Sand Ilill Kail road.

<p>i. An ex parte settlement of an administration account was made in 1860, and recorded in the county court, showing a considerable balance against the administrator, all of which was subsequently paid off, provided the administrator should be allowed a credit for $500.00 which he paid before said settlement was made, and which is not referred to or credited therein ; this credit was disputed by the distributees, and in 1877 they brought their suit against the administrator for the sum found against him in said settlement, and he in his answer claims credit for this $500.00 and establishes by direct and positive proof, that it was a proper charge against the estate and that he paid it, and that he did not discover, until three or four years before the suit was brought, that it had not been credited in said settlement. Held :</p> <p>I. That the administrator was entitled to credit for said $500.00 in the settlement of his accounts ordered by the court in said suit, (p.377.)</p> <p>II. The administrator was a competent witness to prove that he had paid said claim, its existence having been proved by other testimony, (p.379.)</p>

<p>1. At a tax-sale a husband purchases atract of land in the name of and for his wife with money derived from her separate estate; he is his wife’s general agent for the management of her separate estate and the transaction of her business under a general authority from her; within one year after such sale a creditor of the person, in whose name the land was sold, goes to the husband and offers to pay him the amount necessary to redeem the land and has the money to do so, and also hands to him a receipt to sign for the money; the husband takes the receipt, looks at it and hands it back, stating that he will not sign it as he does not know that such creditor has a right to redeem the land, but does not intimate that he has no authority to receive the money and sign the receipt; subsequently and before the expiration of one year, such creditor deposits the money with the clerk of the county court of the proper county, and takes his official receipt therefor as prescribed in section 16 of chapter 117, Acts 1872-3. Held :</p> <p>I The offer to pay the redemption money to the husband was, under the circumstances, a sufficient offer, and his refusal to receive it entitled the creditor to pay the same to the clerk, (p. 385.)</p> <p>II. The husband being, admittedly, not only the general agent of his- wife but having made the tax-purchase for her, the creditor had the legal right to regard and treat him as her agent to receive and receipt for the money in redemption of said land ; and if he had no authority in fact to act in that particular matter, it was his duty to so inform the person offering to redeem, and his failure to do so will make his act binding upon his principal, (p. 386.)</p> <p>2. Statutes authorizing the redemption of lands sold for taxes are to he liberally construed in favor of persons entitled to redeem, (p. 385.)</p>

Statement by Johnson, President : In November 1874, Jonas Smith instituted his suit in Putnam county to enforce the following contract: “I hereby give to C. B. Dungan, of Philadelphia, the refusal to purchase a tract of about 100,000 acres lying in Putnam county, West Virginia, known as the Jabel tract, on the following conditions: A loan of $60,000.00 to be paid or become a part of the purchase-money as hereinafter provided. $ 60,000 00.

<p>1. Except in the special ease provided for by statute, where the answer in the nature of a cross-bill asks affirmative relief, no special replication can be filed. If the answer makes it necessary that the particulars of a transaction should be pleaded, the plaintiff should amend his bill, (p. 397.)</p> <p>2.Where a bill is filed to enforce a judgment-lien, and the answer avers payment and a receipt of plaintiff’s attorney for the amount of the judgment, a general replication to the answer , puts in issue the execution of the receipt, the authority of the attorney to receive the money, and whether or not it was procured by a fraudulant combination between the judgment-debtor and the attorney of the judgment-creditor with the purpose to defraud such creditor, (p. 397.)</p> <p>3. No decree shall be reversed for want of a general replication to the answer, where the defendant has taken depositions, as if said general replication had been filed. (Code, sec. 4, chapter 134.) (p. 398.)</p> <p>4. While it is true, that a payment made to an attorney is a good payment on his client’s claim, yet such payment, to operate as a discharge of the debt in whole or in part, must be made in good faith, or the money must be paid to the creditor by the attorney. (p. 404.)</p> <p>5.If the attorney and the debtor enter into a fraudulent agreement, that the debtor will pay the attorney a part of the claim and is to receive and does receive a receipt for the whole, and it is understood between them, that the money so paid is not to go to the creditor, but to be kept by the attorney, the payment made under such circumstances is not a payment on the claim ; and the debtor will not receive credit therefor, unless the attorney pays it to his client, (p. 404.)</p> <p>6. A payment so made can not inure to the benefit of the surety of the principal debtor, any more than to the benefit of the fraudulent principal himself, (p. 404.)</p>

<p>1. The simple fact, that a tenant moves off the leased premises during his term, does not entitle his landlord to enter and put another tenant in possession ; and if the landlord does so enter during the term, the first lessee may recover the premises Irom the second lessee by action of unlawful entry and detainer, (p. 407.)</p> <p>2. In an action of unlawful entry and detainer commenced before a justice and taken by appeal to the circuit court the jury are sworn on the trial of the appeal to “ try the issue joined ” instead of being sworn “to try whether the defendant unlawfully withholds the premises in controversy all the facts are certified and show that the case was tried on its merits, and that no injustice was done the plaintiff in error by reason of this irregularity. Held :</p> <p>This is not such error as will warrant the Appellate Court in reversing the judgment, especially when no objection to this irregularity was made in the trial court, (p. 408 )</p>

<p>Upon an indictment under section 1, chapter 107, Acts 1877, for selling spirituous liquors without n State license therefor, if the record shows that an “indictment for unlawful retailing” was found, such record is suffiicent to show the finding of such indictment hy the grand jury.</p>

<p>The provisions of section 1, chapter 141, Acts 1872-3, authorizing municipal corporations to impose a license-tax for the exercise of certain privileges outside and within one mile of their corporate limits, does not authorize the imposition of such tax for general ■ municipal purposes, but only for the liquidation of bonds issued under the authority of said act.</p>

<p>1. The grounds for the attachment are the conclusions of the law. The “material facts,” which the statute requires the affiant to state, are the allegations, from which the court may he properly authorized to conclude, that the grounds exist. Consequently an affidavit, which states that a debtor did an act or acts, which of themselves are not necessarily fraudulent, with an intent to der fraud his creditors without more is not sufficient, (p. 416.)</p> <p>2. An affidavit, in which the material facts stated were held insufficient to sustain the grounds of the attachment, (p. 416)</p>

Statement of the case by Green, Judge-: Jacob Lynch, administrator de bonis non with the will annexed of Isaac Lynch, at the April rules, 1880, filed in the circuit court of Harrison county his bill to subject to the payment of a judgment of said court, which he had obtained against Eugene Henry, a tract of land owned by Eugene Henry in Doddridge county, West Virginia, containing 328 acres. He made certain parties alleged to have liens by judgment or otherwise defendants.

Statement by JOHNSON, PresideNt: This was an action of assumpsit brought in 1879 in the municipal court of Huntington by the plaintiffs to secure the price of goods, &c. The defendants were charged as partners. They pleaded non assumpsit and_filed affidavits denying the partnership. The record shows that the plaintiffs demurred to each of “said affidavits or pleas,” and the court overruled the demurrers.

Statement by Greeít, Judge : Tlie West Virginia Transportation Company, a corporation oí this State, in 1878 brought an action of assumpsit in the circuit court of Wood county against Moses Sweetzor for freight on oil, storage, cash paid by the plaintiff to the Baltimore & Ohio Railroad Company for the use of the defendant at the request of the plaintiff, for freight on that road and for services and inspection of oil for defendant.

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

<p>1. When an executory contract for the sale of land is unobjectionable in its nature and circumstances, it is as much a matter of course for a court of equity to decree its specific execution, as it is for a court of law to give damages for its breach, (p. 473.)</p> <p>2. A written contract for the sale of land may be rescinded by a subsequent parol agreement by the parties, but to make such agreement effectual it must have been fully executed and be established by clear and conclusive proof, (p. 473.)</p> <p>3. Time is not in courts of equity considered as of the essence of the contract for the sale of land', unless it is made so by the express stipulations of the parties or arises by implication from the very nature of the property or the avowed objects of the vendor or vendee, (p. 478.)</p> <p>4. Where the delay in such cases is merely in the failure to pay the purchase-money at the time specified in the contract, equity will not for that cause alone refuse specific execution to the vendee for the plain reason, that it admits of adequate compensation ascertained by law in the form of interest, (p. 478.)</p> <p>5. The doctrine, that a bill in equity for the specific execution of a contract rests in the sound discretion of the court in view of the facts and circumstances and does not require its interposition ex debito justitice, has a very limited application in modern courts of equity. The rules and limitations which govern such courts are no less rigorous and definite than those governing courts of law. (p. 479.)</p> <p>6. A cause in which the specific execution of a contract for the sale of land is held to have been properly decreed by the circuit court.</p>

<p>1. The Court will take judicial notice of the fact, that Greenbrier . county was all the time during the war within the Confederate lines, and that Confederate money was. the general currency in circulation there, (p. 484.)</p> <p>2. When an administrator residing where Confederate notes were'the general currency during the war receives and pays outsuch notes, while he is indebted to the estate, in settling his accounts he should be charged and credited with the full amount of such notes received and paid out without scaling them. (p. 485.)</p> <p>3 Where an administrator during the war collected an ante-war debt due. the estate by solvent parties and did not pay it out, when he might have done so, he is chargeable for the full amount of such debt and is not entitled to have it scaled, (p. 485.)</p> <p>4. Where in the ex parte settlement of an administrator’s accounts a balance is found against him and included in the settlement as the proceeds of ’an ante-war bond on solvent parties, which he collected during the war and did not pay out when he might have dono so, and such amount is equal to or greater than such bal-' anee so found against him, he is liablefor the full amount of such balance and is not entitled to have it scaled, (p. 485.)</p> <p>5. Where a suit is brought by distributees against an administrator for a balance found against him due to the estate, and the bill contains allegations and charges which show he is liable for such balance, and in his answer he does not controvert such material charges, the court does not err in decreeing against him for such balance on the bill and answer without referring the case to a commissioner to have an account taken, (p. 484.)</p> <p>8. Where a defendant served with a subpoena in a chancery suit fails to demur or answer, and a decree is rendered on bill taken for confessed, and tire defendant does not under the statute move to have the decree reversed in the court below but appeals, such appeal will be dismissed as improvidently granted, (p. 480.)</p>

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

Statement by Green, Judge: In 1878, George JJ1. Miller,Sr., executor of the last will and 'testament of Christian S. Miller, brought an action of debt in the circuit court of Cabell county against John G. Miller on three notes of $5,000.00 each all dated July 6, 1872, and payable in six, twelve and eighteen months from date to C. S. Miller.

<p>The provision of Section 13 of Article III. of the Constitution of this State as amended in 1880, which declares, that “ JSTo fact tried by a jury shall be otherwise re-examined, in any case, than according to the rules of common law,” applies to cases tried by a jury of six before a justice, and prohibits the re-trial of such cases by the circuit court under the provisions of chapter 8, Acts of 1881.</p>

<p>i. It is a general rule, that courts of equity do not entertain jurisdiction to give relief by way of compensation or damages for bread'es of contract and other wrongs cognizable at law, where these constitute the sole objects of the bill. In equity relief in such cases can be granted only as incidental to other relief sought by the bill and granted by the court; or when there is no adequate remedy at law; or when some peculiar equity intervenes, (p. 528.)</p> <p>2. Averments in a bill of facts showing equitable jurisdiction, which are shown by other averments and the manifest objects of the bill to be merely colorable, will not give equity jurisdiction, if the real cause of action is one for which the plaintiff has a full and adequate remedy at law. (p. 528.)</p> <p>3. A vendee of land flies his bill in equity against his vendor alleging, that he was induced to buy the land and pay the purchase-money upon the false and fraudulent representations of the veil" dor that the title was perfect and unencumbered, when .in fact the land was subject to a vendor’s lien in favor of a former,grantor, under which it was subsequently sold whereby he lost the land and the amount paid for it, and praying that the contract of sale and deed to him for the land may be rescinded and the vendor compelled to refund the purchase-money. On demurrer the circuit court dismissed the bill. Held :</p> <p>This was not error, (p.529.)</p>

<p>1. The purchaser of property ata iudieial sale, which before confirmation thereof has been set aside by a subsequent decree directing the property to be re-offered for sale, can not appeal from such decree, belore such re-sale has been made and confirmed, (p. 534.)</p> <p>2. A decree setting aside a judicial sale, which has not been confirmed, and directing the property to be re-offered for sale is not a decree “which requires the possession or title of the property to be changed,” within the meaning of the seventh clause of the first section .of chapter 135 of the Code of West Virginia, as amended by chapter 157 of the Acts of the Legislature of 1882. (p. 535.)</p> <p>3. The cases of Roberts v. Roberts, 13 Grat. 639, and of Rabie v. Mitchell, 9 W. Va. 492, so far as they or either of them may seem to authorizea purchaser ata judicial sale, which before confirmation thereof has been set aside, to appeal from the decree setting the sale aside and directing the property to be re-offered for sale, before sueh re-sale has been made and confirmed, are overruled, (p. 539.)</p>

<p>Under section 1 of chapter 106 of the Acts of 1882 a court of equity has no jurisdiction of a purely legal claim, and no attachment can issue in such a case ; and the court having no jurisdiction, the decree entered in such ease will be reversed by the appellate court and the bill dismissed.</p>

<p>The opinion of the Court contains a statement of the facts of the case.</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: This was a proceeding against ~W. C. Ridgway before the mayor of the town of Hinton to punish him for selling to N.B. Dunn spirituous and intoxicating liquors without having a license to sell such liquors and in violation of the ordinance of said town and of law.

Woods, Judge, furnishes the following statement of the case: In a chancery suit brought and prosecuted to final decree in the circuit court of Wetzel county, by John II. Nuzum against David Simpson, Hawley Morris, J. W. Cotts and others, a decree was rendered against said Simpson on the 81st day of May, 1881, in favor of Justus Balrin and said Nuzum for the sum of $256.60 each, and in favor of Cotts for $93.36 with interest on each of said sums from the 17th of May, 1881.

<p>1. In an action for killing a horse the plaintiff as a witness for him self stated, that he had bought the horse four or five years before it was killed, and that it was worth when killed a certain price; on cross-examination the defendant asked him, what he paid for the horse, which question on objection by the plaintiff was excluded by the court. This was not error to the prejudice of plaintiff in error under the circumstances of this case. (p. 572.)</p> <p>2. A party, who moves the court to exclude the evidence of the opposite side, must be treated as a demurrant to such evidence, at least as to the effect which is to be given to it. (p. 573.)</p> <p>3. Negligence is in most cases a mixed question of law and fact; and generally what particular facts constitute negligence is a question for the determination of the jury from all the evidence before it bearing on the subject, rather than a question of law for the determination of the court, (p. 573.)</p> <p>4. Where the case made by the evidence is such, that reasonable men unaffected by bias or prejudice would be agreed concerning the presence or absence of due care, the court would be justified in saying that the law deduced the conclusion accordingly, (p. 576.)</p> <p>5. If the facts are unambiguous, and there is no room for two honest and apparently reasonable conclusions, the court should not be compelled to submit the question to the jury as one in dispute, (p. 576.)</p> <p>6. In an action for injuries done to live-stock on a railroad-track by the negligence of the defendant the burden of proving the negligence is upon the plaintiff, but this does not require him to prove that he did not contribute to the negligence which occasioned the injury. The plaintiff will have showna prima facie right to recover when he has proven thattheinjury has in fact been done and, in addition thereto, facts and circumstances from which a j ury may fairly conclude that such injury was caused by the negligence of the defendant, leaving out of consideration any question of contributory negligence, (p. 576.)</p> <p>7. A case in which it is held, that the facts proved by the plaintiff made a prima facie case of negligence against the defendant, and the court properly denied the defendant’s motion to exclude the plaintiff’s evidence from the jury.</p>

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

(xREEN, Judge, furnishes the following statement of the case: On February 2,1884, C. H. Shattuck and J. M. Jackson Jr., partners in busiuess as Shattuck & Jackson, sued out an attachment in the circuit court of Mason county against S. N. Knight and G-. W. Knight, partners as S. N. Knight & Brother, for $366.19.

<p>1. Two suits are brought at the same time — the one on the law and the other on the chancery side of the court — the parties being the same in both cases; the same order is made in the law and the chancery case referring each to an arbitrator “to take and settle all accounts between the -plaintiff and defendant, and finally to determine their claims in full against each other;” the suits are between two brothers and the same subject-matter to a large extent is involved in the suits. Held :</p> <p>An award made in the one case of the matters involved in that only without passing upon the matters in the other is bad, because it does not embrace^all the matters submitted, (p. 607.)</p> <p>2. An award to be valid must be final and certain, it must adjudicate all matters submitted, and if it leaves any such matter open for future controversy, it is invalid. (p. 608.)</p>

Gíreen, Judge, furnishes the following statement of the ease : A. K,.

GheeN, Judse, famishes the following statement of the case: This was an action of assumpsit brought by Sophia Schwarz-bach, widow of George Schwarzbaeh, and his infant children, John, Francisca, Gnstavus and Louis, suing by tlioir mother as their next friend, in the municipal court of Wheeling against the Ohio Valley Protective Union, a life insurance company of Wheeling. 'The declaration was that authorized by chapter sixty-six of Acts of 1877, and was upon the liabilities…

<p>1. Where a deed of trust on personal property is executed by the meuibersof a Arm to secure the debts of the firm, and the interest of creditors and purchasers for value without notice are not affected, the question, whether it was properly acknowledged and recorded, is not material, (p. 674.)</p> <p>2 One member of a firm may execute a deed of trust on personal property to secure the creditors generally of the partnership, fp. 674.)</p> <p>3. Where a deed of trust has been executed on personal property of a partnership by a member of a firm for the benefit of its creditors generally, and two of the firm-creditors without notice of such deed have attachments sued out and levied on the interest of one ■ member of the firm in the partnership property, such levy does not give such creditors priority over the other partnership creditors secured in the deed. (p. 675.)</p>

<p>The opinion of the Court contains a statement of the facts in the case.</p>

<p>Au indictment for conspiracy and the felonious taking and carrying away of personal property, under section ten chapter one hundred and thirty-five of the Acts of 3882, known as the “Red Men’s Act,” is not sustained by the proof that the property was obtained by false pretenses with the owner’s consent and without force or threats. The taking contemplated by said act is by physical force or against the owner’s consent.</p>

Woods,- Judge, furnishes the following statement of the case: On September 8, 1870, James W. Wangling and Straw & Morton entered into the following agreement: “ Agreement made the eight (8) day of September, 18 — , by and between Straw & Morton, of Pittsburgh, of the first part, and James W. Wandling, of the second part, wit-nesseth: “ That Straw & Morton hereby agree to employ the said party of the second part, and the party of the second part agrees to enter into the…

Woods, Judge, furnishes the following statement of the case: J. R. Douglass filed his bill in the circuit court of Ritchie county against Archibald Rutherford as trustee, and as administrator of Richard Rutherford, deceased, William Hall, administrator of Thomas IT.

GreeN, Judge, furnishes the following statement of the case: íl. T. Earles, a merchant in Milton,'Cabell county, West Virginia, failing in business on September 29, 1882, made the following assignment to A. E. Neal of Milton: “Know all men by those presents, that I, H. T. Earles, merchant doing business at Milton, W. Va., have this day sold, assigned and delivered to A. D-^Neal all that certain stock of general merchandise now in my store at Milton, consisting of dry goods,…

GreeN, Judge, iurnishes the following statement of the case: The members of the firm of J. B. Detwiter & Co., millers, of Wheeling, W. Ya., and their wives on July 16, 1864, executed a deed of trust to J. S. Wheat and Sobieski Brady, trustees, of Wheeling on certain real estate in Wheeling to secure first, a debt due to Hopkins & Janney, merchants of Baltimore, Md., evidenced by a negotiable note of $5,000 executed by Detwiler & Co to Hopkins & Janney dated July 16, 1864,…

<p>1. The rights of parties to a suit are such as are settled by the ultimate results, and are in no respect affected by intermediate orders and decrees which are reversed or vacated before the final termination of the suit. (p. 755.)</p> <p>2. Pendente lite purchasers are bound by the decrees entered affecting the property so purchased by them, although they may not be parties to the suit. (p. 756.)</p> <p>3. If such purchaser has notice in fact of the litigation inviolvng the title to the property so purchased, his purchase will be deemed fraudulent, (p. 756.)</p> <p>4. The statute of limitations does not run in favor of a, pendente lite purchaser. Such purchaser in possession of land so purchased will not be regarded as holding it adverse to the parties tothesuit during the litigation, (p. 757.)</p> <p>5. Land is sold at a judicial sale, the sale confirmed and a convey-veyance made to the purchaser and he takes possession, the litigation continues, and after the purchaser has been in the actual possession of the land under such conveyance for more than ten years, the decrees ordering and confirming the sale are reversed and declared void, and the sale set aside for the want of jurisdiction in the court to order the sale ; during all this time the taxes on the land are paid by the purchaser and the same is not charged for taxes to the owner and he pays no taxes on it, Held :</p> <p>I. The possession of such purchaser under such void sale is not adverse to the owner, (p. 758.)</p> <p>II. The payment of the taxes by such purchaser inures to the benefit of the owner, and the State can have no claim against the owner for taxes on the land, and his title can not become forfeited for not also paying taxes on the land. (p. 758.)</p> <p>III. The vendee of such purchaser can occupy no higher position or acquire any better right to the land as against the owner during the litigation than that held and acquired by his vendor, (p. 756 )</p> <p>6. A suit held not to be removable to the Federal Court under the act of Congress of March 3, 1875.</p>

GreeN, Judge, furnishes the following statement of the case: Ulery Conrad, of Pendleton county, West Virginia, died intestate on November 11, 1867, seized in fee of six tracts of land in Pendleton county, West Virginia, supposed to be of the following size and value: A tract of 1,311 acres on the South Branch worth $6,000.00; a tract of 133 acres on the South Branch, worth $655.00; a tract of 24 acres in Hays Gap worth $240.00; a tract of 37 acres in Hays Gap worth $37.00; a…

Woods, Judse, furnishes the following statement of the case: The Valley City Salt Company was incorporated under the laws of this State on February 4, 1869, with a capital stock of $38,700.00 subscribed, on which $8,370.00 was paid in.

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

<p>Where prior to the adoption of the Code of 1868 the husband by marriage and the birth of issue alive had become tenant by the curtesy initiate of the freehold property of inheritanceof his wife, the life-estate of the husband in such estate is liable for the payment of his debts notwithstanding the provisions of chapter sixty-six of said Code and of the Constitution of 1872 of this State.</p>

The opinion of the Court contains a statement of the facts of the case. I. The court below had equity jurisdiction over the award. Code of W. Va. 1868, p. 569, sec. 4 ; Wheeling Gas Company v. Wheeling, 5 W. Va 448. II. It should have exercised that jurisdiction by setting aside the award. 1. Because the award was not made and returned until long after the expiration of the time provided in the submission.

<p>1. The allegations of the bill must correspond with the proof ; and a decree based on a different case from that stated in the bill will be reversed, (p. 837. j</p> <p>2 Where a contract of sale of real estate is not by deed, and no conveyance lias been made, a vendee can recover back in an action of assumpsit what he has paid on the contract, when the conditions have failed, or the contract has been rescinded, or thevendor refuses to comply with his part of the contract; and in such case equity has no jurisdiction (p. 837.)</p> <p>3. If a specific performance or rescission of a contract for the purchase of land is sought after the death of the vendee, the heirs and not the personal representative must bring the suit. (p. 837.)</p> <p>4. If A. has purchased atract of land from B. and executed his notes for the purchase-money and a deed of trust on the land to secure B., and then sells the land to C. with the agreement, that 0. shall take up the notes as they become due, and C. does take up the first note, he stands in the shoes of A. and not B., and can not be subrogated to the rights of B. in the trust-deed ; for the note is paid, and the debt to that extent discharged, (p. 838.)</p> <p>5. Where a decree is reversed, because it is founded, on matters not stated in the bill, and it appears upon the record, the bill can not be amended so as to justify any decree thereon, the appellate court on reversing the decree will dismiss the bill. (p. 838.)</p>