Volume 26 — West Virginia Reports

Gbeen, Judge, famishes the following statement of the case: In 1868 Elizabeth M. Hull, widow of Eelix II. Hull, and Hugh W. Slieffey, administrator of Eelix II. Hull, filed their hill in the circuit court of Pocahontas county, West Virginia, setting out that Eelix H. Hull died intestate in Highland county, Virginia, in the fall of 1861, leaving as surviving heirs a widow Elizabeth M. Hull and three infant children Edgor P, Hull, Eelix Ii. Hull and Lillie Hull.

<p>In habeas corpus a judgment remanding the prisoner can not be superseded.</p>

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

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

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

<p>1. When a decree appealed from consists in part of an order of reference for a report upon certain specified matters and for such other matters, as the commissioner may deem pertinent or he required by any party, if such order is justified by the pleadings and proofs as to the matters specified, this Court will not, before such, report is made and acted upon by the court below, reverse or consider the order, because some party under said general clause may require irrelevant or improper matter to be reported to the court, (p. 58.)</p> <p>2, The payment of taxes on land by a purchaser thereof at a judicial sale, which is subsequently set aside and declared void, will be treated as a full satisfaction of all the taxes on such land for the time they shall have been so paid ; and the owner of the land so sold will not forfeit his title thereto by reason of his not having had the land assessed and the taxes paid thereon in his name during the timethe taxes were so paid by such purchaser, (p. 59.)</p>

<p>Gkeen, Judge, furnishes the following statement of the ease:</p> <p>On June 6., 1881, William Herron and twelve others of Hancock county, West Virginia, presented their petition, to the county court of said county, asking that court to appoint viewers “ for the purpose of viewing and reporting a public road to connect the Florance and Frankfort roads, through the lands of Lucinda Carson, William Herron and Alexander Cunningham, in precinct Ho. 8, Clay district, in said county.” This petition states, “ that this road has been a traveled road open to the public for more than forty, years, but it never had by any order been declared to be a public road.” At the saíne time Thomas Peterson and twenty others filed another petition for the opening of another and rival road in said county. On the presentation of these petitions the county court of Hancock by consent of parties made an order, whereby the President of the court and the other two members of it were appointed a committee to view the proposed roads, and to that end they were ordered to meet'on the proposed road on August 22,1881, at 10 o’clock A. M.</p> <p>On August 28,1881, the said court made an order in the case, from which it appears by way of recital that said commissioners as such committee did on August 22, 1881, view said proposed roads and other routes and had them surveyed and plats made of them, returned to the court and filed ; and from all the evidence adduced, they, the committee, decided in favor of a specified route marked on the plat, which would appear to be substantially the road petitioned for by Herron and twelve others; and that'they reported that it would not be necessary to take any yard, garden, orchard, or part thereof, or to injure or destroy any building, and that this road had already been open to the public and traveled for nearly forty years. This order after these recitals states, that all the parties, through whose lands this proposed road passes were present then in court, $nd it then proceeds thus: “ Hone of these parties having as yet claimed or waived damages in the event of the establishment of this road as a public road, and the court having decided to undertake said Avork on behalf of the county and to establish this road, the same to be twenty feet wide/’ (describing it by metes and bounds); and it concludes thus: “It is therefore ordered that the said road upon the said route as hereinbefore entered,, be established as a public road, and the surveyor of precinct No. 3, Clay district, be directed to take the same under his control.” ' ■ ■</p> <p>This order was subsequently, on December 5,1881, set aside as defectively and improvidontly made; and in lieu thereof this order was then made with recitations similar to those of the order of August 23,1881, sot aside, except that they were somewhat more general and failed to state, as the former order did, that the committee reported, that it would not be necessary to take'any yard, garden, orchard, or any. part thereof, or injure or destroy any building, and which then directed : “ That December 17, 1881, be fixed for hearing the parties interested at a special meeting of the court to be held on that day, and that for that purpose William Herron, Andrew Carson and wife, and Alexander Cunningham be summoned to show cause against the establishment of this road and what damages, if any, they may be entitled to recover.” On that day, December 17, 1881, the order made shows, that all persons, through whose lands the proposed road passed, appeared and waived all damages, except Lucinda Carson and Andrew Carson, who appeared and filed an answer in writing denying the jurisdiction of the court; and thereupon it was “ ordered that proceedings'be instituted and-prosecuted by the court in its own corporate name, in tire circuit court of Hancock county pursuant to law to ascertain,-what will be a just compensation to said Lucinda Carson for the land proposed to be taken and' any'and all other damages she may be entitled to.”</p> <p>An appeal was taken from' these proceedings of the county court of Hancock by Andrew Carson and Lucinda-his wife, and Lucinda having died, it was revived in the names of her children and héirs-at-law, the Swearingens, .and having been heard by the circuit court on March 3,1882, that court reversed the proceedings of the county court because of the error of that court in its failure to appoint a day for a hearing and.to cause notice to be given to the proprietors of the property to be taken or injured to show cause against the same and for other errors; and it ordered that said matters be remanded to the said county court with directions to appoint a day for hearing and to cause notice to be given to the proprietors of the property to be taken or injured to show cause, if any they have, against the establishment of the proposed road; a judgment was rendered in favor of the appellants for the costs.</p> <p>On the return of the case to the county court of Hancock, after the proprietors of the land, through which the proposed road passed, were summoned to show cause, why the proposed road should not be established, the former appellants moved the court to recommit the case to other viewers, which the court'refused to do, and they took a bill of exceptions. They then asked the court to award them a writ of ad quod damnum, which the court refused to do, and they took a bill of exceptions. This order of the county court made May 8, 1882, thus concludes: “ And it further appearing to the court, that the said parties-defendant claim damages amounting to $500.00, and the court being willing to give only $25.00 and water-privilege, which oiler the defendants refuse to accept, it is hereby ordered, that proceedings be instituted and prosecuted in the circuit court of Hancock comity in the name of the county court of Hancock county pursuant to law, to ascertain what will be a just compensation to the aforesaid proprietors or tenants, if any, for the land proposed to be taken.” The circuit court refused to entertain these proceedings, because the county court had made no order to establish. the road, aud dismissed the petition of the county court therefor. The county court then, on December 5,1882, made an order, that the road prayed for in the petition of "William Herron and others be established as a public road, andthatproceodingsbe instituted in the circuit court of Hancock county to ascertain what will be a just compensation to the owners of the land, through which said road is to pass, for the land necessarily taken, and all other damages said land owners will sustain by reason of the establishment of this road.. Thereupon the following proceedings were had in the circuit court of Hancock county: On March 28, 1883, an order was entered iu said court, which set out, that the county court of Hancock county had filed its petition, which had ordered the establishment of this public road, and that Andrew Carson, Mary Elizabeth Swearingen, and John Swear-ingeu, her husband, Nancy Anu Swearingen, and John Swearingen, her husband, through whose lands this road passed, claimed compensation therefor; and the county court of Hancock therefore prayed, that commissioners might be appointed to ascertain a just compensation to these laud-owners for their lands proposed tobo taken. These commissioners the court appointed in the manner prescribed by law to ascertain what would be a just compensation for so much of the real estate, as is proposed to be talceu, as well as for damages to the residue of said real estate, beyond the peculiar benefits which will be derived in respect to such residue. Their report was excepted to by these land-owners, who demanded a jury of twelve freeholders to ascertain their damages. Afterthe jury was sworn, they were by the consent of parties and by leave of the court allowed in the custody of the sheriff’ to go upon the land proposed to be taken and viewed the same and returned into court, and having retired to their room they found a verdict that $76.00 would be a just compensation for so much of the said real estate, as was proposed to be taken, describing it, as well as for the damages to the remainder of said real estate beyond the peculiar benefits, which will be derived in respect to such residue from the work to be constructed.</p> <p>The court upon this verdict on August 25, 1888, rendered judgment in favor of the defendants, Andrew Carson, Nancy Ann Swearingen and John Swearingen, her husband, Mary E. Swearingen and Andrew Swearingen, her husband, against the county court of Hancock county, the petitioners, for their costs and also for the sum of $76.00, the damages so ascertained by the jury ; and upon the payment thereof and of the costs by the county court of Hancock, the petitioners, said county court was to be entitled to the right of way through the real estate proposed to be taken as aforesaid. On September 3,1883, the county court of Hancock county made an order refusing to abandon this undertaking on the motion of these land-owners and adjudging the payments to them of said costs and damages; and upon the payment thereof the proper road-surveyor was ordered to take charge of said public road and open the same for public travel. But this was suspended for forty-five days to afford the defendants an opportunity to appeal from this order to the circuit court. This appeal to the circuit court of Hancock county was granted by the judge of that court November 25, 1883. On June 25, 1884, the circuit court decided : “ That there was no error in the orders and proceedings had by said county court made since the former appeal from the said county court and including the final order of the county courf of Hancock made September 3, 1883, complained of by the appellants; and it therefore affirmed the order made December 5, 1882, and all the orders subsequent thereto and adjudged, that the comity court of Hancock recover of the appellants their costs about this appeal expended. This order of the circuit court was suspended for sixty days on the appellants giving bond with good security before the clerk of said court in the penalty of $100.00 conditioned as required by law, that the appellants might apply for a writ of error to said judgment of the circuit court. To this order of the circuit court of June 25, 1884, a writ of error has been awarded on the petition of John Swearingen and Nancy Swearingen, his wife, and Andrew' Swearingen and Mary E. Swearingen, his wife.</p>

<p>Green,- Judge, furnishes the following statement of the case :</p> <p>This was an action of trespass qucure clausum fregit brought in November, 1880, in the circuit court of Preston county The declaration filed at December rules,, 1880, alleged, that the defendant broke into the close of the plaintiff in said county, describing it by metes and bounds, and cut down and destroyed trees, the property of the plaintiff, and also wheat growing thereon, the property of the plaintiff, took and carried away and converted to his own use to the plaintiff’s damage $250.00. This declaration was demurred to, and issue was joined thereon, and the demurrer was overruled. On April 20,1881, the defendant pleaded not guilty, and issue was joined thereon, and an order of survey was made by the court, and on December 5, 1882, a jury was sworn to try this issue, who on December 8,1882, found a verdict for the plaintiff and assessed his damages at $12.00. The court then rendered a judgment for the plaintiff against the defendant for this $12.00 with interest thereon from that date and his costs. Pour bills of exceptions were taken during the trial of this case by the defendant; one to the court allowing the plaintiff to introduce certain evidence, and the other three to the refusal of the court to give certain instructions to the jury at the instance of the defendant. No new trial was asked by the defendant. The defendant obtained a writ of error and super-sedeas to this judgment rendered'against him by the court.</p>

<p>G-reen, Judge, furnishes the following statement of the case :</p> <p>On February 15, 1883, the grand jury of Wood county found the following indictment against Caroline Baller: “State of West Yersinia, Wood County, to wit:</p> <p>“The grand jurors of the State of West Virginia in and for the body of the county of Wood and now attending the said court, upon their oaths present that Caroline Baller, on the first day of January, A. D. 1883, in the said county of Wood, did unlawfully furnish to one John A. Ban, for the use of Peter Earl, and amount of money, to-wit, the sum of $3.00 to unlawfully induce the said Peter Earl, to absent himself from the circuit court of said county at the February term, 1883, of said court, to which said term he, the said Peter Earl, had been subpoenaed as a witness on behalf of the State of West Virginia against the said Caroline Baller in a case pending in said court upon an indictment for misdemeanor found by the grand jury of said county against the said Caroline Baller at the November term of said court, 1882, whereby the said Caroline Baller attempted to obstruct and impede the administration of justice in the said circuit court of Wood county contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.”</p> <p>.On July 19, 1883, the defendant moved the court to quash this indictment, which motion the court overruled; and thereupon she pleaded not guilty, and issue was joined. On July 26, 1883, this issue was tried by a jury, who found the defendant guilty as charged in this indictment, and on August 6, 1883, the defendant moved the court to arrest the judgment, which motion the court overruled and rendered judgment against the defendant for $25.00, the fine assessed by the court and costs, and that the defendant be confined in the jail of Wood county for one hour, and until this fine and costs were paid. The court stayed execution of this judgment on the defendant’s motion for thirty days on her. giving bond and security in the penalty of $300.00 as required, which bond she gave.</p> <p>From this judgmentthe defendant obtained a writ of error.</p> <p>The question in this case is : Is the indictment sufficient?</p> <p>The indictment is for attempting to prevent the attendance of a witness summoned to give evidence before the circuit court of Wood county, whereby the accused attempted to obstruct and impede the administration of justice in said court.</p> <p>The attempted offence while a contempt of court is also indictable at common law. (Hawk. b. 1, c. 21, s. 15; Comm. v.Reynolds, 14 Gray 87.) The attempt is a misdemeanor. (Rexv. Higgins, 2 East 8; Whar. Am. Or. Law 706, 767, and note b.) In England it has been held that merely soliciting another to commit a crime is an attempt. (1 Russ. Crimes 49.) In Virginia, to constitute an attempt, an actual ineffectual deed done in pursuance of and in furtherence of a design to commit the offence is required. (Uhl’s Case, 6 Grat. 672.) The overt act need not be the last proximate act prior to the consummation of the offence attempted. (Id.) See also Clark’s Case, 6 Grat. 675, and Nutter’s Case, 8 Grat. 699.</p> <p>The indictment in this case is in substance that recommended in Archb. Cr. Pr. & PI. See 1 Whar. Cr. Law (8th ed.) 2 Chit. Cr. Law 234, 235, and 2 Archb. Cr. Pr. & PI. 897,) and distinctly alleges the overt act, decided in Virginia to be necessary, and further that the money was furnished to unlawfully induce Peter Earl to absent himself from the court, he being a duly subpoenaed witness. If Earl did so absent himself, there can be no doubt that the effect would have been to obstruct and impede the administration of justice. The money was furnished for the purpose of unlawfully inducing the absence of the witness, and the indictment not only shows an overt act done, but also the unlawful intent with which it was done. From her acts and intention as alleged in the indictment the conclusion that she thereby attempted to obstruct and impede the administration of justice in the circuit court of Wood county is legitimate and proper.</p> <p>The ways in which such obstruction could be attempted are as varied as human actions, but one way attempted it is insisted is properly pleaded in the indictment.</p>

<p>Tlie facts of tlio case appear in the opinion of the Court:</p>

<p>1. An indictment may be fatally defective as an indictment for robbery yet good for an assault, (p. 112.)</p> <p>2. If such indictment attempts to charge the offence of robbery and is bad for that offence and charges an assault, it is good for the lesser offence, and a motion to quash such indictment is properly overruled, fp. 114.)</p> <p>3. Mere surplusage in an indictment will not vitiate it; and therefore where an indictment alleges facts, which constitute a misdemeanor, it will be good for that offence, although it states other • facts, which go to constitute a felony, but falls short of stating sufficient facts to constitute that crime, (p.. 114)</p> <p>4. Verdicts in neither civil nor criminal cases will be set aside for objections to jurors on grounds, which existed before they were sworn, unless it appears that by reason of the existence of such grounds the party objecting has suffered wrong or injustice ; and in no case would a verdict be set aside for a matter, which was a principal ground of challenge to a juror, unless it was shown to the court, that such juror had prejudged the ease. (p. 115.)</p> <p>5. A verdict in a misdemeanor case will not be set aside, because the ■ sheriff of the county had, after the jury was sworn, made a bet that the jury would find the defendant guilty, (p. 116.)</p>

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

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

The facts of tho case appear in the opinion of the Court. The indictment in this case sought to punish a violation of sec. 1, ch. 32 of the Code as amended by the Acts of 1877, according to the provisions of ch. 22, Acts of 1879, and is good, whether considered as an indictment under sec. l,ch. 32 as amended or under the Acts of 1879, the plain meaning of which, too plain for different construction, was recited in the first instruction.

A statement of the facts of the case will be found in the opinion of the Court. The first assignment of error is the overruling of the demurrers to the indictments. The first count in each indictment is good under § 1, ch. 32, of the Code, as amended by ch. 107, Acts 1882, (State v. Pen-dergast, 20 W. Va. 672; State v. Cox, 20 W. Va. 797.) It is objected to the second counts, that they do not state the dates of the-commission of the offences.

<p>1. The purchaser of land sold for taxes, who has obtained his tax deed therefor, and had the same duly recorded in the proper •county, becomes invested with such estate in and to the land so purchased by him, as at the commencement of, or at any time during the year for which the said taxes were assessed, was vested in the party assessed with said taxes, (p. 172.)</p> <p>2. If at the time of such sale the land sold be under a mortgage or deed of trust, or if there be any other lien or incumbrance thereon, and such mortgagee, trustee, cestui que trust, lienor or in-cumbrancer shall fail to redeem the same within the time prescribed by law, then all the right, title and interest of such mortgagee, trustee, cestui que trust, lienor or incumbrancer, shall pass to and be vested in the purchaser at such tax-sale, and his title to the premises shall in no way be -affected or impaired by such mortgage, deed of trust, lien or incumbrance, (p. 1721)</p> <p>3. Where land has been so purchased by and conveyed to the purchaser, and his tax-deed therefor has been duly recorded, and before the land was so sold, it had been conveyed to a trustee to secure the payment of a debt, such tax-deed will extinguish the title vested in such trustee by said deed of trust, (p. 173.)</p> <p>4. Where the trustee in such deed of trust pretends to sell and convey the land so conveyed to him as trustee under the provisions thereof, after the said land has been sold for the delinquent taxes thereon, and the purchaser thereof at such tax-sale has obtained and duly recorded his tax-deed therefor, such pretended sale and conveyance of said land by such trustee will be inoperative and void. (p. 173.)</p> <p>5. Where a debt is secured by a deed of trust upon the land of the debtor, not in the possession of the creditor, who is not otherwise interested in the said land, such creditor is under no obligation to pay the taxes upon said land in the absence of any covenant, promise or agreement to do so. (p. 170.)</p> <p>6. Where such trust-creditor is neither in possession of the lands charged with such trushdebt nor. bound by any covenant, promise or agreement to pay the taxes thereon ; and where no relation of trust or confidence between him and the trust-debtor exists, he is not precluded from acquiring at a tax-sale the title to the land conveyed by said deed of trust to secure the payment of his trust debt. (p. 171.)</p> <p>7. Where a trust-creditor, whose debt is secured by a deed of trust upon a tract of land liable to be sold for the non-payment of the taxes thereon, instead of paying such taxes or redeeming the land from the purchaser at a tax-sale thereof becomes himself the purchaser thereof in his own name or in the name of another acting as his agent for that purpose, he will be regarded as having elected to hold the land as such purchaser, subject to all the advantages and disadvantages pertaining to his character as such ; and he will not be permitted to treat his purchase at the tax-sale as a payment of the taxes, or a redemption of the land without the consent of his j||4ifer. (p. 170.)</p> <p>8. Where a tract of land has been sold for taxes, and after such sale, and before the title of the purchaser has become absolute, the county court of the county, in which the land lies, has by proper proceedings regularly established a public road over said land without compensation with the consent in writing of the owner thereof in fee, and such purchaser aftef wards obtains a tax-deed for said land and has the same duly recorded, such tax-deed will not confer upon him any right to demand and recover any compensation for the land so appropriated for such public road ; and if such purchaser afterwards conveys said land to a third party, his deed to such third party will not confer upon him any right to such compensation or damages, (p. 174.)</p>

<p>1. If two executors authorized by the will of their testator to sell a tract of land sell it to one of the executors but convey it to a third party who immediately conveys it to the executor who was the real purchaser, such sale can be avoided at the option of any of the parties, who under the will had an interst in the proceeds of such sale, to the extent of the interest of'such deyisee so objecting. But such sale and deed is not absolutely void, and the right of any one of the devisees or of all of them may be lost by any facts or circumstances showing that he or they had expressly or impliedly approved such sale under circumstances, that would make such approval a waiver in a court of equity of the right to have such sale and deed set aside, (p. 202.)</p> <p>2. If a personal representative or other fiduciary fails to make an ex parte settlement of his fiduciary accounts once a year, it will be presumed, that such failure arose from the failure of such fiduci-ry “ to furnish a commissioner with a statement of all the money, which he had received or had become chargeable with or had disbursed within six months after the end of the year,” and unless this presumption is rebutted by satisfactory evidence, such fiduciary must forfeit his commissions and all other compensation for his services during the year, in which he fails to have made such ex parte settlement, (p. 203.)</p> <p>3. Itis true, tbatdelay in the assertion of a right, unless satisfactorily explained, may operate in equity as a waiver of such right, and that laches and neglect are always discountenanced by a court of equity. But these principles are inapplicable, when the party, Who, it is claimed, has failed to assert his right in a reasonable time, was an infant or one non compos mentis, and the suit is brought promptly, after there is some one appointed, upon whom the law imposes the obligations to guard the interest of such infant or lunatic, (p. 206.)</p> <p>4. To authorize an investment by a fiduciary under an order of a judge in Confederate bonds the act of the Virginia legislature of March 5, 1863, required, that these conditions should concur : First, The money must be in the hands of the fiduciary. Second, It must have been received in the due exercise of his trust. Third, For some cause he must have been unable to pay it out to the party entitled to it. And if in any case they did not all exist, the fiduciary is responsible for the money, (p. 210.)</p> <p>5. If it was the duty of trustees to invest the funds of their cestui quo trust, and it was safely invested and secured amply on land, and these trustees were to collect the money so invested in Confederate notes largely depreciated and should re-invest it in Confederate bonds, which became valueless, such trustees would be responsible to the cestui que trust for the amount of such money so improperly collected and re-invested. (p. 211.)</p> <p>6. 'A testator devised a sixth of his estate to trustees for the use of his grandson, who was an imbecile, his portion to be held by them and the interest expended annually in hissupport and education, till he should attain the age of twenty-five years. When this grandson attained the age of twenty-two years, these trustees claiming that they bad invested the whole of his estate in a Confederate bond, which was not shown to be true, and having furnished no support for more than a year claiming that they owed nothing, his whole estate being lost by its investment in a Confederate bond, entered into an agreement with him, which he had not sufficient mind to fully comprehend, whereby he in effect released them from responsiblity for the amount, which came into their hands, to an extent exceeding $1,000.00. Such agreement ought not to be held binding on him, and his trustees should be required to settle their accounts, as if no such agreement had been entered into with him. (p. 211.)</p> <p>7. Without determining upon whatprineiples the accounts of a committee of a lunatic or idiot should generally be settled, yet it is held that under the circumstances of this case stated in the opinion the accounts of such committee ought to be settled on the principles governing the settlement of a guardian’s account. (p. 218.)</p>

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

<p>The facts of the case will he found in the opinion of the Court. ' ■</p>

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

<p>1. An indictment, which charges an offence in the language of the statute, will not bé held bad because it contains surplus matter, (p. 237.)</p> <p>2. A new trial for errors committed during the former 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, (p. 238.)</p>

<p>1. An umpire may be selected either before or after a disagreement between the arbitrators, (p. 245.)</p> <p>2. Where a submission “authorizes and directs the arbitrators to select an umpire,” it means, if there should be disagreement, the umpire shall settle it. But if under such submission there is no disagreement, and no umpire is chosen, the award will not be bad, because the arbitrators did not choose an umpire, (p. 245.)</p> <p>3. A statutory award is complete, when it is signed and published and ready to be returned to court; and when it is so made, the authority of the arbitrators is gone, and they are functus officio. (p. 245.)</p> <p>4. When an award is made, the arbitrators can not change it, and though they do attempt to change it, effect may be given to it as it originally was. (p.246.)</p> <p>5. A party, who himself has been the only cause of misbehavior on the part of the arbitrators or either of them,.can not be heard to complain of such misbehavior, (p. 246.)</p> <p>6. Technical precision and certainty are never necessary in an award. If it be expressed in such language, as plain men acquainted with the subject-matter can understand it, that is enough, (p. 246.) ■</p> <p>7. If an award settling a corner and lines between two tracts of land shows that two points one in each of two lines are ascertained, they will be regarded as fixed and certain, unless the record shows, that they are uncertain; and if the award gives directions to ascertain where the corner, which must settle the dispute, is located by the award, and in such a manner that any competent surveyor could from such award find the corner and lines, the award is certain, (p. 248.)</p> <p>• 8. Where arbitrators have made and published their award, and at the instance of one of the parties they change the award, and the award so changed is returned to court, and the other party moves to have the changed award entered up as the judgment of the court, and it is so entered up against the protest of the party at whose instance the original award was changed, by an addition thereto, whereby it was made more favorable to him, said party is not prejudiced by the entering up of the second or changed award instead of the first, (p. 249.)</p>

<p>1. In an indictment for robbery “silver coin of the value of 5>2.00” is a sufficient description of the property taken, (p. 253.)</p> <p>2. Upon the trial of such an indictment it is proper to permit the party, from whom the coin was taken', to give evidence as to the number and value of the pieces taken (p. 253.)</p>

<p>1. The allegation in the indictment, that the defendant “carried on the business of a druggist without a license therefor,” using as it does the language of thestatuteis sufficient, (p. 255.;</p> <p>2. The statute requiring the name of the witness, on whose evidence the indictment was found, to be stated at the foot of the indictment is directory, and the omission to so state the name is not fatal to the indictment, (p. 255.)</p> <p>3. To repeal a statute by implication it must appear, that the latter provision is certainly and clearly hostile to the former. If by any reasonable construction the two statutes can stand together, they must so stand, (p. 256.)</p> <p>4. No druggist is authorized to carry on his business in this State without a State license therefor, (p. 257.)</p> <p>5. The Pharmacy Act does not repeal the statute requiring a State license to carry on the business of a druggist, (p. 258.)</p>

GREEN, Judge, furnishes the following statement of the case: The grand jury of Wood county on November 14, 1881, found the following indictment: “The grand jurors of the State of West Virginia in and for the body of the county of Wood, and now attending the said court, upon their oaths present, that Stephen Gould, on October 13, A. D. 1881, in the said county, did unlawfully and wilfully and cruelty beat, shoot, torture, and otherwise ill-treat a certain beast called a mule,…

<p>A sufficient statement of the tacts of the case will be found in the opinion of the Court.</p>

Green, Judge, furnishes the following statement of the case : This was an action of ejectment brought in the circuit court of Preston in September, 1880, by Joseph Danks against Isaac Rodeiieaver and Ami Praukhauser to recover a certain tract of land in said county described by metes and bounds, and which the plaintiff claims he was possessed of in fee, and on which the defendants entered, and the possession of which they unlawfully withheld to his damage.

<p>1. Under the Act of Congress, March 3,1875, it is too late to make an application to remove a case from the State to the Federal court, several terms after an answer has been filed and excepted to, and the exceptions not passed upon by the court, when the exceptions might have been passed upon, arjd the case heard at the timesuch answer was filed, (p. 306.)</p> <p>2. Where exceptions to a part of an answer are sustained, and the defendant does not ask leave to amend his answer, it is not error to proceed to hear the case on the bill and so much of the answer, as is not excepffed to. (p. 307.)</p> <p>3. Where an answer sets up a claim to the attached property, which with the accompanying exhibits clearly shows, that, at the time the attachment was levied, the defendant had no claim to such property, an exception to so much of the answer, as attempts to set up such defence, is properly sustained, (p. 308.)</p> <p>4. Where real estate conveyed to a foreign railroad company is attached in this State for the debts of said company, and a defendant claims the property under deed, ordered to be made under proceedings in a foreign court to foreclose a mortgage on the “railroad,” and the pleadings in said cause do not assert that the mortgage covers the said property in this State, but the court without passing on that question orders the trustee to sell “all the right, title and interest of the railroad in West Virginia, which passed under said mortgage,” and a deed was ordered to be made for such interest, the courts of this State without reference to any conflict of jurisdiction are left free to decide whether any thing passed under said mortgage, (p. 300.)</p> <p>5. When a mortgage was executed by a Pennsylvania railroad company authorized under its charter to build a road “from near Pittsburg, Pennsylvania, in the direction of Steubenville, Ohio, to the Pennsylvania State line,” and the said mortgage grants the whole of their ‘railroad and other property “situated between and at the terminus of their railway at the city of Pitts-burg and the boundary line of the State of Virginia in the counties of Alleghany and Washington in the State of Pennsylvania,” it conveyed no property whatever in the State of Virginia, (p. 310.)</p> <p>6. The attaching creditor in this State, who bid upon property at the sale under such mortgage in the State of Pennsylvania, is not estopped to insist upon his attachment-lien on the property in this State, (p. 310.)</p> <p>7. Under see. 11 of ch, 151 of the Code of i860 a foreign attachment suit in equity is brought, the affidavit is in- form, except it does not state “the nature of the plaintiff’s claim” as required by the amendment of 1867 to the first' section of the chapter; a few months afterwards, but before any other rights had attached to the subject, an unexceptionable affidavit was filed, but there was no other order of attachment issued, and no other levy made. Held :</p> <p>The lien attached to the land as against everybody at least from the filing of the second affidavit, (p. 322.)</p> <p>8. Because pendente lite the defendant railroad company has taken possession of the strip of land attached, on which was a road-bed and railroad-track, at the time the attachment was levied, it lias no right to insist, that a section of a railroad can not be sold. It takes the property if at all cum onere. (p. 323.)</p>

<p>' 1. When there has been in a foreign attachment suit in equity an ascertainment of the amount of the indebtedness due fro n the defendant to the plaintiff, and the debtor appeals from the decree so ascertaining the amount, which is affirmed, and the court below is proceeding to execute the decree by selling the attached property, it is too late for a claimant of the property to dispute the debt. (p. 826.)</p> <p>2. Where under sec. 24 ofch. 106 of the Code a Claimantof the property flies a petition, unless the petition and the accompaning ex--hibit's show a legal or equitable claim to the property, the court does not err in refusing to empannel a jury to enquire into the claim, (p. 827.)</p>

The facts of the case will be found in the opinion of the Court. I submit to the court that the writ of error in this case was improvidently awarded, for the reason that no final judgment had been rendered.

GrREBN, Judge, furnishes the following statement of the case: Prom November 23, 1878, there was pending in the circuit court of Barbour county an action of debt brought by James Pickens against Byron Love and David'Queen on a single bill dated August 9, 1875, for $150.00 with interest from its date.

GreeN, Judge, furnishes the following statement of the case: At April rules 1874 Hugh Garrett filed his declaration in ejectment in the circuit court of Harrison against John W. Ramsey and George F. Bussell claiming in fee a tract of land set out by metes and bounds lying in said county and containing 140 acres, from which he had been ejected by the defendants, laying his damages at $1,000.00.

GREEN, Judge, furnishes the following statement of the case: At February rules 1883 B. JB\ Moore filed his bill in the circuit court of Ritchie county, in which he alleged, that some time in the spring ot 1879 George G. Moore and Mattie his wife sold to Jacob S. Smith a tract of land in Ritchie county containing sixt-two aci’es, and that all the purchase money tor said tract of land had been paid by said Smith except one deferred instalment of $150.00.

Green, Judge, furnishes the following statement of the case: in August, 1881, Wm. Held: adjudged and decreed to he a mortgage, and that the plaintiff may be allowed to pay so much as he may he found justly to owe the said Sandford, and that the said usurious and unlawful interest shall be abated, and that said equity ot redemption and the said legal title outstanding in the said Riley may be decreed to be reconveyed to…

<p>1. Where a surety pays the debt of his principal, he is entitled to interest on the whole amount paid, princijual and interest, from the date of such payment in an action or suit against his principal. (p. 416.)</p> <p>2. Whether the surety, who has paid costs and expenses on account of the debt of his principal, can recover the same from his principal depends upon the circumstances of each case. Under the facts and circumstances of the case at bar it is held, that the surety is not entitled to recover from his principal the costs and expenses of a suit to which the principal was not a party, (p. 417)</p> <p>8. Where real estate has been sold in a chancery cause, and a decree is entered therein directing that specific debts shall be paid by the commissioner having the fund in charge out of the proceeds of such sale, such decree is, as to the owner of the real estate so sold, prima facie a satisfaction of such debts. If, therefore, said debts are paid by a surety, such decree directing payment from the proceeds of his property is sufficient, in the absence of countervailing evidence, to entitle him to recover the amount so paid or ordered to be paid from his principal, (p. 418.)</p> <p>4. In a suit to sell the remainder of certain real estate for the payment of debts against it, in which the owner of the life-estate consents that the whole property may be sold together and a gross sum paid to him in lieu of his life-estate from the proceeds of the sale, the court, if i.t is satisfied the remainder will bring a better price by selling the whole property together, may order the sale so to be made without the consent of the owner of the remainder. (p. 420.)</p> <p>5. Where a decree is made for the payment of money, whether it is a personal decree against the debtor or merely against property liable for the payment of the money so decreed to be paid, the decree should be entered for the aggregate of principal and interest at the date of the decree with interest thereon from that date, (p. 421.)</p>

The facts of the case are stated in the opinion of the Court: The question in this case is : Does ch. 32, sec. 1 of the Code as amended by ch. 107 of Acts 1877 prohibiting the sale without a State license of “spirituous liquors, wine, porter, ale or beer, or any drink of a like nature,” prohibit the sale of intoxicating crab-cider without such a license ? The statute is not only a revenue measure, but also a law to provide as far as possible against the evil of intemperance.

<p>1. No precise rule can be laid down defining the extent and limits of the concurrent jurisdiction, which courts of equity will exercise with courts of law in matters of account. In such matters courts of equity reserve to themselves a large discretion, in the exercise of which they will pay due regard to the nature of the case and the situation and conduct of the parties, (p. 439.)</p> <p>2. If the averments of the bill show that the specific accounts can be fairly determined in a court of law, and that no discovery is necessary, the simple fact that the bill contains vague and general statements as to the inadequacy of the remedy in a court of law, or the necessity for some discovery from the defendant, without stating the specific facts showing that there is such inadequacy in the remedy at law or necessity for a discovery, such statements will be considered merely as pretexts for foisting a jurisdiction upon courts of equity, which does not belong to them, and they will be disregarded and jurisdiction declined. Such, in the view of the Appellate Court, is the character of the jurisdictional averments of the plaintiff’s bill in this cause, (p. 440.)</p>

<p>The opinion of the Court sufficiently states the tacts of the case.</p>

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

<p>1.The rule for determining what facts shall be considered as established in cases of demurrer to the evidence, when all of it is adduced by the demurree is, the court shall regard the demurrant as necessarily admitting by his demurrer not only the credit and truth of all the evidence but all inferences of fact that may be fairly deduced from it; and in determining the facts inferable from the evidence, inferences most favorable to the demurree will be made in eases where there is grave doubt which of two or more inferences shall be drawn. Unless there is a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor, (p. 457.)</p> <p>2.If the evidence is such, that the court ought not to set aside the verdict of a jury in favor of the demurree, then upon a demurrer to that evidence the court should give judgment against the de-murrant. (p. 458.)</p> <p>3.A case in which the judgment of the circuit court, sustaining the defendant’s demurrer to the plaintiff’s evidence in an action for negligently killing the plaintiff's mule by the train of the defendant, is reversed by this Court and judgment given for the plaintiff for the damages found by the jury. (p. 459.)</p>

GREEN, Judge, furnishes the following statement oí the ease: At the July rules, 1882, Michael S. Titchenell filed his bill in the circuit court of Preston county against Charles W. Jackson and Joseph Feather, in which he stated, that Charles W. Jackson had obtained a judgment in the circuit court of Preston against him and then instituted a chancery suit in said court to subject his farm of fifty acres in said county to the payment thereot, and obtained a decree ordering the…

<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 preceding case.</p>

<p>1. A corporation must defend a suit against it in its corporate name ; and the stockholders will not be permitted to defend, unless the corporation refuse to do so. (p. 487.)</p> <p>2. Where a suit is brought against a corporation, and apurchaser of the stock of the corporation flies his answer in defence of the suit without showing that the corporation has refused to defend the suit, it is not error to strike out his answer, (p. 487.)</p>

Green, Judge, furnishes the following statement of the case: Joseph V. Williams, George E. Cunningham and Edward Williams suing on behalf of themselves and other tax-payers of Grant district in Grant county, filed their bill in the circuit court of Grant county against the county court of said county, A. W. Coler and Morgan T. Smith constables of said district and A. C. Scherr sheriff of said county.

<p>1. Under the provisions of our statute, sec. 3, eh. 44 of Acts 1877, and sec. 3, ch. 157 of Acts 1882, no petition can be entertained by this Court for an appeal from any decree of any character, which was rendered more than five years before the petition is presented for the appeal, (p. 539.)</p> <p>2. Where an appeal is properly obtained from an appealable decree either final or interlocutory, such appeal will bring with it for review all joreceding- non-appealable decrees or orders, from which have arisen any of the errors complained of in the decree appealed from, no matter how long they may have been rendered before the appeal was taken, (p. 440.)</p> <p>3.A party can not be granted an appeal upon a petition assigning errors in appealable decrees rendered more than five years before his petition is presented, although the errors thus assigned maybe the foundation of and be given effect in a subsequent decree rendered within five years, from which an appeal is also prayed. The petition must show that the party is entitled to an appeal from such subsequent decree alone, or the appeal can not be properly allowed, and if inadvertently allowed, it will be dismissed (p. 540.)</p>

<p>The opinion of the Court sets out the facts of the case.</p>

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

<p>1. Where there is a sale of land by the aere, a right of survey exists whether expressly reserved or not; and if no time is limited for making the survey, it may be made at any time before the whole business is closed between the parties, (p. 575.)</p> <p>2. Where a contract was made for sale of a boundary of land set out therein for §5.00 per acre providing for the terms of the payment and giving immediate possession of the land, and the bill filed for the specific performancé of the contract alleged the making thereof, the price per acre to be paid and the terms of payment, and that by survey made by plaintiff it amounted to a specified number of acres, and alleging the failure to pay the purchase-money, and praying a specific performance, Held :</p> <p>The bill is sufficient and demurrer thereto was properly overruled. (p. 575.)</p> <p>3. Although the record shows, that the defendants were entitled to an abatement amounting to §41.25, yet, as that is not sufficient to give this Court jurisdiction, the cause will not be reversed for that reason, but, as the Court has jurisdiction on other grounds, the decree will be corrected and affirmed, (p. 576.)</p> <p>4. Where by consent of the vendor the vendee sold a portion of land to a third party with the understanding that, if he paid for it to the original vendor at the price he sold it for, the deed should be made to him, and he fails to perform the contract, no abatement should be allowed on this ground, (p. 576.)</p>

. Geeen, Judge, furnishes the following saatement of the case: On May 18,1847, George Fisher, jr., instituted his writ of right in the superior court of law and chancery for Lewis county, then in Virginia, against James M. Camp, to recover a tract of 200 acres of land in said county. The demandant filed Ms account October 4, 1847, and the tenant then filed his pica, and the demandant filed his replication thereto, and thereupon the mise was joined between the parties.

• GkHEN, Judge, furnishes the following statement of the case : In April, 1882, Patrick E. Poole warranted John Dilworth and John J. Dilworth before a justice of Taylor county on a bond for $250.00, dated May 14, 1873, payable to Eliza A. M. Litzinger and James Rogers on October 1, 1874, with interest from its date, which bond to the extent of the Interest of Mrs. Eliza A. M. Litzinger in it was assigned to James Rogers for a valuable consideration on May 26,1873, and on…

GreeN, Judge, furnishes the following statement of the case: Thomas A. Harris owned a tract of land in Ritchie county on the Parkersburg branch of the Baltimore & Ohio Railroad and on September 7, 1882, he entered into the following contract with J. M. Hauser in reference to timber on -said land : “ This contract, made on September 7,1882, between Thomas A. Harris, of the city of Parkersburg, county of Wood, and State of West Virginia of the first part, and J. M. Hauser, of…

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

<p>1. The vendor of an equitable right or title to land retains an implied lien on it for the consideration, whenever under the same circumstances the vendor of the legal title would hold an equitable lien. The same principle and reason apply to both cases, except that our statute — sec. 1, ch. 75 of Code — qualifies the latter, while it has no effect upon the former, (p. 609.)</p> <p>2. Such implied equitable lien of the vendor of an equitable title or estate, where the contract of sale is unrecorded, will be enforced by a court of equity against the vendee, his heirs, purchasers with notice and his unsecured or general creditors, but not against purchasers for value without notice, nor against mortgage, or trust-creditors with or without notice, (p. 611.)</p> <p>3.— Qucere. — Is not such equitable vendor’s lien paramount also to the liens of the judgment-creditors of the vendor? (p. 612.)</p>

Woods, Judge, furnishes thé following statement of the case: This was a suit in equity brought at February rules, 1871, in the circuit court of Mercer county by the plaintiff Elizabeth Smith now the wife of Enos Bailey, against William ID. Stroud, Matthew Bolton and his wife Mary W. Bolton, and Jacob Trail, which was afterwards transferred to and heard by the circuit court of Summers county.

<p>A defendant against whom a decree has been rendered upon bill taken for confessed can not appeal to this Court for the review of alleged errors in such decree until after he has first applied to the court below for the correction of such errors in the manner prescribed by sec. 5, ch. 134 of Code. If an appeal is granted from such decree it will be dismissed as having been improvidently awarded.</p>

<p>1. It is well settled, that while in cases of director express trusts, as between the trustee and cestui quo trust, the statute of limitations has no application during the continuance and recognition of the trust, yet if the trustee repudiates the trust by clear and unequivocal acts or words, and claims thereafter to hold and control the estate as his own not subject to any trust, and such repudiation and claim are brought to the notice or knowledge of the cestui que trust in such manner that he is called upon to assert his equitable rights, the statute will begin to run from the time that such knowledge is brought home to the cestui que trust, (p. 634.)</p> <p>2. Unless there is an express saving in the statute of limitations, ‘nd person will come within its exceptions, and the prescribed limitations will operate against persons under disabilities as well as others ; and the express exceptions refer only to such disabilities as exist at the time the right of action first accrued; tor while, if several disabilties exist together at that time, the statute will only begin to run at the cessation of the last of them, yet if a second disability occur after those then existing have ceased, it can not be pleaded ; for it is the settled law that when the statute has once begun to run no subsequent event will interrupt it. (p. 635.)</p> <p>3. When the subject is land, of which the trustee has the legal title, and the cestui que trust is a member of his family living upon the land, if the trustee, asserting title in himself, conveys a part of the land, by deed in his own name, to a third person whom he places in possession of the part so sold and takes the purchase-money to himself, the deed is put upon record and there is no evidence that the trustee ever thereafter recognized the trust, but on the contrary claimed the residue of the land as his own; these acts and transactions will be regarded as a repudiation of the trust, and the statute of limitations will begin to run against the cestui que trust from that time. (p. 636.)</p> <p>4. It is not necessary to the assertion of an adverse possession, that the party should be ignorant of the defects of his own title and have no knowledge of the rights of those against whom he claims. He may know he has a bad title and that another has the true title. Still if he occupies and claims the land as his own for the statutory period thetitle will by operation of the statute be transferred to him. (p. 636.)</p>

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

Creen, Judge, furnishes tho following statement of the case : This was an action of ejectment brought by Emily 0. Carter against the Chesapeake and Ohio Railroad Company in the circuit court of Greenbrier county in March, 1883, to recover the possession of the ground, on which stood a pump-house or engine-house, which had been erected by the company tor supplying its engines with water.

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

Geeen, Judge, furnishes the following statement of the case : This was a proceeding in the circuit court of Jefferson county instituted by the Shenandoah Valley Railroad Company to condemn a strip of land sixty-six feet wide and ninety feet long lying on the bank of the Potomac river at Shepherds-town in said county belonging to Panny Shepherd, Alexander B. Shepherd and R. Davis Shepherd, in which Mrs. Elizabeth S. Shepherd had a doiver interest.

<p>1. In a suit to enforce a vendor’s lien it is not error to decree a sale of the land, on which the lien for the purchase-money is reserved, without other lienors being made parties and the amount and priorities of their liens settled, (p. 688 )</p> <p>2 In a suit to enforce a vendor’s lien the defendant filed an answer averring that there were many judgment-liens, against the plaintiffs lands, and that he did not have other lands beside the tract sold defendant sufficient to discharge said liens but did not aver, that the plaintiff was insolvent. The court did not err in refusing to set aside an order of sale on this ground, nor in refusing to send the cause to a commissioner to enquire into the matters set up in the answer, (p. 690.)</p> <p>3. A decree for the sale of land without providing therein that, before the commissioner shall sell the land, he shall execute a bond in a penalty prescribed by the court, is erroneous and for such error will he reversed, (p. 691.)</p> <p>4. A plaintiff in a suit to enforce a vendor’s lien can not waive the bond required by the statute of the commissioner appointed to make such sale (p. 692.)</p>

<p>The opinion oí the Court contains a statement of the facts of the case:</p>

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

<p>1. An appellate court will not reverse a decree at the instance of a party not prejudiced by it. (p. 717.)</p> <p>2. A paper purporting to be an answer copied into the transcript of the récord and certified by the clerk as having been filed in the court below after the cause had Jieen set for hearing, but which was not filed by any order of coju-t and is not referred to or recognized in any order or decree entered in the cause, is not a part of the record and will not be considered by the appellate court, (p. 718.)</p> <p>3. A non-resident party, against whom a decree has been rendered upon order of publication, must proceed in the manner prescribed by the statute for the review of such decree and can not • in the first instance appeal therefrom to this Court, (p. 718.)</p> <p>4. Where questions purely of fact are referred to a commissioner to be reported upon, the findings of the commissioner, while not as conclusive as the verdict of a jury, will be given great weight and should be sustained, unless it plainly appears that they are not warranted by any reasonable view of the evidence. This rule, operates with peculiar force in an appellate court, where the findings of the commissioner have been approved and sustained by the decree of the inferior court, (p. 718 )</p>

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

Snydbe, Judge, furnishes the following statement of the case : In October, 1877, T. B,.

<p>1. After an adjudication in bankruptcy all the property of the bankrupt passes to the assignee, who takes it subject to all the liens and equities then existing against it. (p. 752.)</p> <p>2. The bankruptcy-court has the right and the power to enjoin the prosecution of any suit thereafter instituted in a State-court to enforce any previous lien against the bankrupt’s property; as it has the right to administer fully upon the estate of the bankrupt liquidating and settling all liens or ordering the property sold subject to the liens, (p. 752.)</p> <p>3. When the bankruptcy-court orders the property sold subject to the liens, there is no reason why the State-court should not proceed to enforce the liens, (p. 752.)</p> <p>4. Where neither the bankruptcy-court, the assignee nor any creditor objects, the State-court has jurisdiction to proceed with such suit to enforce the liens, (p. 752.)</p> <p>5. The assignee should be made a party to such suit. (p. 752. j</p> <p>6. The State-court but for the proceeding in bankruptcy has jurisdiction to enforce a lien against the land of a debtor, and if that jurisdiction is not ousted by the interference of the bankruptcy-court or proper pleading in the cause by the assignee or creditor of the bankrupt, the State-court may lawfully proceed to enforce the lien. (p. 752.)</p> <p>7. The lien is by the Bankrupt Act expressly saved and respected ; and while the bankruptcy-court has the undoubted right to enforce the lien itself and may by injunction prevent the State-court from the enforcement of it, yet by the active or passive permission of the bankruptcy-court the State-court may proceed with the enforcement of the lien. (p. 752.)</p> <p>8.To obtain the benefit of res judicata it must be pleaded, (p. 753.)</p> <p>9.Where B. purchases a tract of land of W. and takes a general warranty-deed, and afterwards ascertains that judgments in favor of divers persons have been recovered and docketed against W., and to save his land from being sold to satisfy said judgment-liens B. pays off the judgments, he is entitled to be subrogated to theliens of such j udgment-creditors against any other land owned by W. (p. 753.)</p> <p>10.Where a contract was made for the purchase of a tract of land, and the consideration was §800.00, and the vendor agreed to take as a part of the consideration a lot at §75.00, the title to which was in the infant-daughter of the vendee, and all the purchase-money had been paid except the lot, to which the grantee had no title, in a suit to enforce alien against the land as the property of the vendee the court did not err in requiring the price of the lot, to-wit, §75.00, to be paid to the vendor instead of such lot. (p. 754.)</p>

Johnson, President, furnishes the following statement of the case: The plaintiffs filed their bill in March, 1882, in the circuit court of Wood county against Z. Warner, W. H. Wolfe and Samuel Stewart.

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

<p>A decree is entered of record confirming a judicial sale, but before the end of the term the said decree is set aside by an order of the court, and at a subsequent term a decree is entered setting aside said sale and ordering a re-sale of the property. Held:</p> <p>I. That no appeal lies to this Court from the order setting aside the decree confirming the sale ; and</p> <p>II. Under the decision of this Court in Childs v.. Hurd, 25 W. Va. 530, the purchaser can not appeal from the decree setting aside the sale before the re-sale is made and confirmed.</p>

<p>1. A declaration in case for diversion of surface water held sufficient. OiUison v. Charleston, 16 W. Va. 282, and Knight v. Brown, 25 W. Va. 80S, adhered to. (p. 790.)</p> <p>2. Where evidence is introduced, which appears proper at the time, and the court admits it and refuses to exclude it on motion of counsel with, the remark: “It will "be excluded, if it hereafter appears that it is irrelevant,” and the record shows, that it after-wards appeared that it was irrelevant, but no motion was after-wards made by counsel to exclude it, the objection to its admission is waived, (p. 790.)</p> <p>3. A party has a right to deal with a run on his land, as he sees fit, provided he does not cause the run in its usual condition to encroach upon the property oí another, (p. 791.)</p> <p>4. In repairing, maintaining or replacing the banks of a run on his own land a person has no right to change or narrow the natural course of the run, so as to cause it to encroach upon the property of another and injure him. (p. 791.)</p> <p>5. Where the record does not show, whether certain instructions made part of the record were given or refused, the appellate court can not consider them. (p. 794.)</p> <p>6. In an action for damages for diverting water from a run it was not error to refuse the following instruction asked for the defendant: “The defendant is not liable to plaintiffs for any washing, slipping or other injury to their property resulting from an extraordinary and unusual condition of the run.” (p.794.)</p> <p>7. In an action for damages for diverting water it is proper to ask a witness to state from facts within his own knotvledge what in his opinion was the amount of damages suffered by the plaintiff because of such diversion of the water ; and to authorize the giving of such opinion it is not necessary that the party be an expert, (p. 796.)</p> <p>8. But it is error to permit a witness to answer in a case like this the following question : “What will be the future damage to the property from the acts of the defendant?” (p. 797.)</p> <p>9. Where the cause of the injury is in its nature permanent, and a recovery for such injury would confer a license on the defendant to continue the cause, the entire damage may be recovered in a single action ; but where the cause of the injury is in the nature of a nuisance and not permanent in its character but of such a character that it may be supposed, that the defendant would remove it rather than suffer at once the entire damage, which it might inflict if permanent, then the entire damage can not be recovered in a single action ; but actions may be maintained from time to time, as long as the cause of the injury continues, (p. 799.)</p> <p>10.One trespass can not be set off in bar of another ; but where the damage alleged by the plaintiffis caused in part by the wrongful act of the plaintiff, the defendant may by way of defence under the plea of not guilty prove such wrongful act of the plaintiff in mitigation of damages, (p. 800.)</p>

<p>A statement of the case.will be found in the opinion.</p>

<p>1. If a deed of trust, the execution of which has not been proved or acknowledged in the manner prescribed by law, be admitted to record by the clerk of the county court of the proper county, such deed is not “duly admitted to record.”' (p. 816.)'</p> <p>2. If such a deed so admitted to record, be copied by such clerk into the deed-book, it is not, by being so copied into such book, “duly admitted to record.” (p. 816.)</p> <p>3. Such deed so admitted to record and copied into the deed book,1 is void as to subsequent purchasers for valuable consideration without notice, (p. 818. j</p> <p>4. Such deed so improperly admitted to record and copied into such deed book is not a recorded deed, and the same is not notice to subsequent purchasers, (p. 816.)</p> <p>5. Where the execution of a deed or other writing is acknowledged by the grantor, or proved before the clerk of a county court, it is the duty of such clerk to certify such acknowledgement or proof upon the said deed, or in some writing thereto annexed, and when the same is admitted to record, to record the same with the deed in the same manner as acknowledgments before other officers are required to be recorded, (p. 815.)</p> <p>6. “W.” conveyed land to C. in trust to secure to “B.” 14,600.00, which deed was never recorded; three years afterwards “W.” conveyed the same land in trust to “P.” to secure, first, to Susan B. a debt of $950.00 and second, to secure ratably to “G. E.” and “F. M. W." and other creditors of “W.” certain specified debts, which last deed was on the date thereof, duly recorded. Of the creditors of “W.” whose debt, were secured by the deed to “P.” “SusanE.,” “G. E.,” and “F. M. W.” alone, had notice of the un-recorded deed to “C.” The land having been sold in a suit between these trust-ereditiors, and the proceeds of the sale proving insufficient to satisfy all of the trust debts ; Held :</p> <p>I. That the deed to “C.” was void, as to all the creditors secured in the deed to “P.” except “Susan E.,” “G. E,” and “F. M. W.” who had notice thereof.</p> <p>II. That all the creditors of “W.” whose debts were secured in the deed to “P.” except “Susan E.,” “G. E.” and “F. M. W.,” were subsequent purchasers for valuable consideration without notice, and that they were entitled to have their debts paid in full, before “B.” was entitled to receive any part of the proceeds of such sale.</p> <p>III. That “Susan E.” was entitled to charge the land with the amount of her debt, subject only to so much of the $4,600.00 as remained unpaid at the time of the sale.</p> <p>IV. That until “Susan E.”“G.E.” and “F. M. W.”shall be fully . paid the amounts of their several debts, “B” is only entitled out of such proceeds to receive so much of the unpaid balance of the debt of $4,600.00 as may remain after deducting therefrom, the several amounts due to the creditors secured in the deed to “P.” who had no notice of the un-recorded deed to “C.”</p> <p>V. That when “B.” shall have received that amount out of the proceeds, the residue thereof must be applied, First, to pay to “SusanE.” the full amount of her debt; secondly, to pay ratably to “G. E. and “F. M. W.,” the full amount of their several debts, and the residue, if any, upon the trust debt of “B.” of §4,600.00.</p> <p>7. If a lien-creditor, standing in the position of a subsequent purchaser for valuable consideration without notice, transfers his debt to an assignee, who had notice of a prior un-reeorded deed such assignee will hold such debt from such un-recorded deed in the same manner, as his assignor was entitled to hold the same. (p. 820.)</p>

<p>In a suit by one partner against his co-partner for a settlement of the partnership accounts the statute of limitations begins to run from the time there is a settlement or account stated of the partnership business between the partners made several years after the dissolution of the Arm, which they then believed and understood included and adjusted all the assets and liabilities of the firm ; notwithstanding that it may have been subsequently found that there were then a few inconsiderable debts due from the firm still outstanding and unprovided for, which under the circumstances may be supposed to have been forgotten or omitted by inadvertanee ; and notwithstanding it may appear from such account stated that there were then a large number of debts due to the Arm but which were by it apportioned among the pratners according to their respective interests.</p>

<p>1. The official act of taking and certifying the acknowledgment and privy examination of a married woman to a deed, whether done by a court, justice or notary, is in the nature of a judicial act; and therefore the officer is not liable in damages for such act, however imperfectly he may perform it, unless he acted from malicious, impure or corrupt motives. (p. 8Í 7.)</p> <p>2. Where a notary takes and certifies the acknowledgment and privy examination of a married woman, but omits from the certificate the words ; “declared she had willingly executed the same and does not wish to retract it,” the certificate is fatally defective ; yet, as it is not alleged in the declaration, or proved, that the notary acted maliciously or corruptly, he is notliablein damages to the person injured for the loss occasioned by such invalid certificate. (p, 838.)</p>

<p>1. A ease in which a motion to dismiss an appeal was overruled. (p. 841.)</p> <p>2. A court- of equity has a right to cancel a deed, which is a cloud upon the title of one out of possession of the land. (p. 842.)</p> <p>3. Where an attachment-suit in equity was instituted to subject land to the payment of a debt, and the land was sold under a decree in said cause, and a deed was made for the property to the purchaser at such sale, but after the levy of the attachment the debtor conveyed for a valuable consideration the land to another, and no lis pendens was recorded, as is required by sec.' 14 of ch. 139 of the Code, the purchaser from the debtor will hold the land as against the purchaser under the decree, (p. 842.)</p> <p>4. And this defect in the title of such purchaser at the sale under the decree was such as all subsequent purchasers from him were bound to notice, (p. 844.)</p>