Volume 27 — West Virginia Reports

<p>1, While our statute — sec. 1 ch. 98 Code — requires every contract for the sale of land to be signed by the party to be charged, still where there has been such partperformance as will take the case out of the operation of the statute, a written contract signed by the vendor alone may be by him enforced against the vendee in a court of equity, (p. 8.)</p> <p>2. A bill filed for the specific execution of a written contract between the plaintiff’s testator and a railroad' company avers, that pursuant to said contract the company took possession and occupied the land therein mentioned as a railroad-track from prior to Julyl, 1853, until it became wholly insolvent and its property was purchased by the W. P. & B. Co., another railroad company, and that it then passed out of existence; that the said W. P. &B. Co. had succeeded to its property and become responsible for its liabilities ; that in an action brought to recover the land from the latter company it produced said written contract and thereby caused said action to be dismissed, and that said W. P. & B. Co. . was in possession of and using the land as a railroad-track, Held :</p> <p>I. On demurrer by the W. P. & B Co. such bill is sufficient.</p> <p>II. That the averments show such privity between said companies as entitles the plaintiff to a specific execution of the contract against the latter company and a decree for a sale of the land for the money due therefor, especially as the latter company, after relying upon said contract and causing the action at law to be dismissed, is estopped to deny such privity and its responsibility for the obligations imposed by such contract.</p> <p>III. The first mentioned company having according to the averments of the bill passed out of existence, the bill is not demurrable because such company is not made a party to it,</p> <p>IV. The personal representative uot the heirs or devisees of the vendor is the proper plaintiff in such suit for the enforcement of the contract, (p. 9.)</p> <p>3. Where a report of commissioners appointed to ascertain the damages for laud taken by a railroad company shows no error or defect upon its face and is not excepted to in the court below, it can not be objected to in the Appellate Court/because upon the whole record of the.suit it appears that it is possible or even probable the commissioners may have included improper items in their ascertainment of the damages reported by them. (p. 11.)</p> <p>4. An order of publication which, in the opinion of this Court, contains a sufficient statement of the objects of the suit. (p. 12.)</p> <p>5. The general rule in ordinary contracts for the sale of land, whir» contain no stipulation for interest and do not specify any day for completion, is that the purchaser is liable for interest on the purchase-money from the time he takes possession, especially if he has received rents and profits, (p. 14.)</p> <p>6. If in any such ease the vendee seeks to escape the payment of interest on account of default of the vendor, he must actually set aside the purchase-money and appropriate it for the vendor, and notify him that the money is thus idle. (p. 15.)</p>

<p>1. A promissory note in the usual form, not specifying any place of payment, made to the plaintiff residing in this State, commene- ■ ing: “Kabletown, January 23, 1871,” by “R.,” then residing, and engaged in business at Kabletown in this State,'and by “D.” whose place of residence at that time does not certainly appear, will in the absence of proof showing that it was executed elsewhere, be presumed to have been executed by “R. ” and “D.” in this State, (p. 28.)</p> <p>2. A promissory note purporting on the face thereof to have been made at a place within this State, not specifying any place where the same is payable, will in the absence of proof, that it was made or payable elsewhere, be presumed to have been made, and that the same is payable in this State, (p. 24.)</p> <p>8. In an action of assumpsit, brought against “D ” upon said note issues were joined upon special replications to his plea of the statute of limitations, alleging in substance that “D.” before the plaintiffs action on the note accrued, had resided in this State, and that before said right of action accrued, hedeparted without the same, and thereafter continued to reside out of this State until the bringing of said action ; upon the trial of these issues, in the absence of proof that “D.” executed the note elsewhere, it will be presumed that he executed the same in this State. (P- 24.)</p> <p>4. If a person residing in another State, makes his notein this State, and thereafter departs from, and continues to reside out of this State, he will be considered as a person, “who before the action accrued resided in this State,” and who by liis departure from it, and his residence out of it, has obstructed the payee in the prosecution of his right of action on such note during such absence from this State, (p. 25.)</p> <p>5. If “R.” residing in this State, makes his note to “H. ” also residing in this State, and sends the same to “D.” residing in another State to be there sighed by him and returned to “R.” to be by him delivered to “H.” and the same is there so signed and returned to “R.,” who delivered the same to “H.,” such note is to beheld, as a contract made in this State, and subject to, and governed by the laws thereof, (p. 24.)</p> <p>6. The general rule is, that all instruments made and executed in a country, take effect and are to be construed as to their nature, operation and extent, according to the laws of the country where they are made and executed, (p. 24.)</p> <p>7. Under see. 3 of eh. 130 of the Code, as amended by sec. 23 of ch. 160 of the Acts of 1882, neither a plaintiff, nor a person for whose use the .suit is brought, is a competent-witness against a defendant, who is the survivor of himself and a deceased party who with him, was a joint maker of the promissory note on which the action is brought, in regard to any personal transaction or com- • munication, between either of them, and such deceased party. (P- 22.)</p> <p>8. Where a party hasin his possession or under his control, evidence, by the introduction of which at the trial he would be able to render certain, a fact material to his success, which is otherwise left in doubt, and he withholds such evidence, the court will upon a demurrer to the evidence introduced by his adversary, presume that the fact was against him. (p. 23.5-</p> <p>9. A ease wherein a party was held to have executed a promissory note in this State, and by departing therefrom and residing in another State had “obstructed the plaintiff's right” within the meaning of sec. 18 of ch. 104 of the Code, as amended by sec. 18, of ch. 102 of the Acts of 1882.</p>

<p>Where a married woman is killed by the negligence of a corporation, her administrator may under sec. 6, chap. 103 of the Code maintain an action for causing such death, (p. 34.)</p> <p>If a declaration shows on its face, that the plaintiff’s negligence contributed directly to and in part caused the injury complained of, it will be held bad on demurrer, (p. 48.1</p> <p>To entitle a party to a continuance on the ground of the absence of a witness it must be shown, that the party has used due diligence to procure the attendance of the witness ; that he is material ; that the same facts can not be proved by any other witness in attendance ; and that the party making the application can not safely go to trial in the absence of such witness, (p. 48.)</p> <p>4. Where the question is involved whether the plaintiff's intestate by jumping from a car drawn by horses, which were running away, was not guilty of contributory negligence and it appeared that there was an embankment near the place of the accident, over which the car might have been thrown, it was proper to ask a witness: “How steep is that embankment?” (p 49.)</p> <p>5. Where death is caused to a passenger by the horses attached to a horse-car “running away,” it was proper to prove facts tending to show, that the driver was incompetent, (p. 50.)</p> <p>6. Where the husband as administrator of his deceased wife brought an action to recover damages of a street railroad company for causing her death, and he was on the trial examined as a witness on his own behalf, it was improper on cross-examination to ask him : “Are you not engaged to be married again?” (p. 50.)</p> <p>7. If a party upon a trial before a jury objects to the giving of instructions, and after his objections are overruled, and the instructions are given, he does not except to the giving of the instructions, he will in the Appellate Court be deemed to have waived his objections, (p. 51.)</p> <p>8. To escape the responsibility of contributory negligence the plaintiff is not required to exercise more care than is usual under similar circumstances among careful persons of the class to which he belongs, (p. 53.)</p> <p>9. It is not a surprise of the character, which would be ground for a new trial, that a witness swears to a conversation had with the defendant, (p. 54.)</p> <p>10. A. case in which the court properly refused to set aside a verdict for §5,000.00 in an action against a corporation for killing a person, (p. 57.)</p>

<p>1. A suit brought to set aside a tax-deed, because the lands were redeemed, and because the party, to whom the deed was made, sustained such relation to the land, that he could not acquire a tax- . title thereto, and it does not appear that any adverse possession is claimed, is not barred by the statute of limitations, (p. 63.)</p> <p>2. If one of several tenants in common purchases the land held in common at a tax-sale or from a stranger, who bought it at such tax-sale, such title so acquired will enure to the benefit of all the tenants in common, (p. 66.)</p> <p>8. Where a number of persons purchase a tract of land, and the title is conveyed to two of them, who execute a declaration of trust that they hold in trust for themselves and the other purchasers, and two others of such purchasers buy a tax-title to the whole, this wili be regarded as a redemption of the land and will enure to the benefit of all'the eesiuis que trust, (p. 70.)</p> <p>4. Where lands, have been sold for the non-payment of taxes and purchased by individuals, and the recorder or the clerk of the county court of the proper county has included the same in the list of redemptions required by sec. 16 of ch. 31 of the Code to be made by him, such list is primary evidence of the redemption of the lands specified therein ; and a copy thereof attested by the clerk of the county court, in whose office the same is, rqay be admitted in evidence in lieu of the original. — Johnson, President, dissenting, (p. 74.)</p>

<p>1. If a vendor sells goods to a vendee to be delivered at the depot in a certain city, or to be delivered in the cars at the depot in a certain city, the goods remain the goods of the vendor when shipped by railroad, till they arrive at the depot in such city, and till then they are at the risk of the vendor. But upon their arrival at the depot in such city without being unloaded and without any notice of their arrival at the depot, they at once become the property of the vendee and are thenceforth at his risk. (p. 128.)</p> <p>2. A eourtoughtnotto grant an instruction to a jury, which is irrelevant or tends to mislead them, and therefore a court ought not to grant an instruction to a jury, which is based on'an hypothesis in reference to the facts, which there is no evidence tending to sustain ; nor should the court grant an instruction which is based on an hypothesis, which there is some evidence tending to support, if such evidence is so weak, that it would be the duty of the court to set aside the verdict as contrary to the weight of evidence, if it was based solely on the assumption that such hypothesis was in fact true. (p. 129.)</p> <p>3. An appellate court will not reverse the judgment of a court below, because it permitted counsel to read law from the books or reports against the objection of the other side, when such law was read before the granting of any instructions, nor if it was read after the granting of such instructions, if the law so read was in accord with the instructions. And though it is the duty of the court to prevent the reading of law by counsel, which conflicts with the instructions of the court, Qucere : If the court should violate its duty in that respect and permit such law to be read against the objection of the other side, would an appellate court in any case for such reason award a new trial ? (p. 142.)</p>

<p>1. When a railroad company puts a superintendant, foreman or other employe in its place to discharge some duty which it owes to its servants or employes, as to such duty such superintendent or other employe is not a co-servant but the representative of the company, and as to such duty the company is bound by the acts or omissions of such middleman the same as though the acts had been done or omitted by the company itself, (p, 156.)</p> <p>2. Whenever such company delegates to another the performance of a duty to its servants, which it has impliedly contracted to perform itself, or which rests upon it as an absolute duty, it is liable for the manner in which that duty is performed by the middleman whom it has selected as its agent, and to the extent of the discharge of these duties by the middleman he stands in the place of the company, but as to all other matters he is a mere co-servant. (P. 157.)</p> <p>8.The question in such case is not whether the company reserved to itself any oversight or discretion, but whethér it did in fact clothe the middleman with power to perform its duties to the servant injured, (p. 157.)</p> <p>4. When a servant enters into the employ of another he assumes all the risks ordinarily incident to the business of such employment; but the master is not justified in exposing the servant to extraordinary risks or hazards not naturally incident to the service in which he is employed, (p. 158.)</p> <p>5. It is the duty of a railroad company not only to furnish a reasonably well constructed and safe railway and track for the use of its employes, but it must also exercise continued supervision over the same and keep them in good and safe repair and condition. ■ (p. 159.)</p> <p>6. If such company or its servant to whom it has delegated the performance of this duty, suffers such railway or track or its cars and machinery from any cause to become dangerous and unsafe, and this condition is known to the company or such servant, or by the exercise of due care or diligence might have become known to it or such servant, and injury results therefrom to one of its servants other than the one having such delegated power without fault on his part, while in the performance of his duty, the company is responsible to the servant so injured, (p. 160.)</p> <p>7. In an action by an employe against a railroad company for negligent injury to his person the plaintiff may recover the expenses of his cure, the value of his time lost during his cure, and a fair compensation for his physical and mental suffering caused by the injury as well as for any permanent reduction of his power to earn money, (p. 161.)</p> <p>8. Contributory negligence is such negligence on the part of the plaintiff as directly contributes to and in part causes the injury, (p. 164.)</p> <p>9. It is the settled law of this State that the burden of proving contributory negligence rests upon the defendant, (p. 165.)</p> <p>10. In an action by an employe against a railroad company for an injury to the plaintiff caused by a particular stump left by the defendant in dangerous proximity to its railway it is not error to reject testimony offered by the defendant, which tends to show generally, that the defendant’s railway in its construction compares favorably with other railroads. (p. 166.)</p> <p>11. A ease in which the judgment of the circuit court is reversed, because the court refused to give to the jury an instrcution asked by the defendant, which a majority of this Court think, under the circumstances and evidence in the case, should have been given to the jury, (p, 152, 1G3.)</p>

<p>1. A bill in a suit in equity brought for the purpose of subjecting property to the lien of an attachment and also to have a confessed judgment-lien on the attached property declared fraudulent as to the plaintiff's lien, is not multifarious, (p. 171.)</p> <p>2. It is a question of constitutional obligation not of state-policy, whether our courts Avill enforce a j udgment of another state-court of competent jurisdiction, having jurisdiction in the case, (p. 178.)</p> <p>3. When a judgment or decree of the court of another state is sought to be enforced in a court in this State, the court in this State may enquire into the jurisdiction of the court, which rendered the judgment or decree, and if it appears that such court had no jurisdiction, the judgment or decree is void, but if it had jurisdiction, the judgment or decree is valid and binding in this State, (p. 174.)</p> <p>4.In deciding upon the effect to be given to a judgment or decree so rendered in another state it must be regarded as well settled, that the record of the decree must have the same effect in this State as in the state where rendered, (p. 174.)</p> <p>5. The record of a decree of the court of common pleas of a county in another state in the absence of evidence to the contrary must be regarded as the record of a decree of a court of general jurisdiction. (p. 174.)</p> <p>6. If the court of another state, which rendered the decree, was a court of general jurisdiction, the presumption is, it had jurisdiction of the particular case, and, to render the decree void, this presumption must be overcome by proof, (p. 174,)</p> <p>7.A decree for alimony not in a divorce suit, rendered by an Ohio court having jurisdiction will at the suit of the wife against the husband be enforced in this State, (p. 175.)</p> <p>8. In a suit, where the defendant demurred to the bill, which demurrer was overruled, and he did not answer, but after sale of his property in the suit he filed written exceptions to the report of sale, which were overruled, and the sale confirmed, and he appeals, and only assigns errors in the decree overruling his demurrer and overruling his exceptions and confirming the sale, his appeal will be maintained, notwithstanding he does not ask the court below to reverse decrees rendered in his absence, as he com-plainsof no errors in such decrees, (p. 175,i</p> <p>9. Where sixty-six acres of land were sold by a commissioner in' a suit for §1,961.00, and the defendant showed an offer of an advance-bid of §5.00 per acre, the bidder offering to comply with such terms as the court might impose, it was the duty of the court to accept the bid, and if such terms were complied with, to set aside the sale and order a re-sale of the property, (p. 176.)</p> <p>10. Where the sheriff has returned the process served on the defendants, and the court has ordered the bill taken for confessed as to them, and final decree has been entered in the cause, one of such defendants will not be permitted to contradict the return of the sheriff to such summons and show, that the process was not served on him in this State but in another state, (p. 177.)</p>

<p>By the statute-law of this State the town of Moundsville is an - thorized to require a license of any person selling spirituous liquors in the town, and to pass an ordinance forbidding the sale of spiritous liquors in the town without such license having been obtained, and for a violation of- such ordinance to impose a reasonable fine and imprisonment not exceeding thirty days ; and this puuishment may be imposed by the mayor of the town by a summary proceeding,but from his judgment an appeal lies to the circuit court, where the case may be tried de novo before a jury.</p> <p>2. The provisions of the statute-law conferring these powers on the town of Moundsville do not violate any of the provisions of our >’ constitution.</p>

<p>1. Transfers of property either directly or indirectly by an insolvent husband to his wife during coverture are justly regarded with suspicion, and unless it clearly appears, that the consideration was paid from the separate estate of the wife or by some one for her out of means not derived either directly or remotely from the husband, such transfers will be held fraudulent and avoid void as to the creditors of the husband, (p. 20D.)</p> <p>2. A conveyance of land made by a third person to a wife, which is fraudulent inf act, will be held void as to subsequent as well as existing creditors of the husband, (p. 210.;</p> <p>3. Where the facts and circumstances connected with a fraudulent conveyance necessarily establish complicity of the grantee in the fraudulent intent, it is not necessary by direct proof to show potice of sqch }ntept to the grantee (p, 210.)</p> <p>4. A deed, though fraudulent and void as to creditors, is nevertheless valid and binding between the parties to the fraud, which brought it into existence, (p. 210.)</p> <p>5. In a suit brought to have a conveyance of land declared void as to creditors and to subject the land to the payment of the debts of such creditors it is not required by the statute or the general law on the subject, that all the creditors of the fraudulent grantor or debtor should be convened, and their debts reported, nor that it should be ascertained, whether the rents will pay off the debts in five years, before there can be a decree for the sale of such land. (p. 210.)</p>

<p>1. By consent of the parties a proforma verdict is entered of record in favor of the plaintiff for a sum large enough to give jurisdiction to the Appellate Court, and by like consent the case is then submitted to the Court upon a demurrer to the evidence by the plaintiff with the agreement, that in the event the final decision shall be for the plaintiff either in the circuit or the Appellate Court, said verdict shall be set aside, and a writ of enquiry instituted to determine the damages to which the plaintiff may be entitled ; the circuit court rendered judgment for the defendant on said demurrer and the plaintiff obtained a writ of error to the Appellate Court, Held :</p> <p>That the circuit court erred in considering the case under such consent and agreement, and for such error its judgment is reversed by the Appellate Court, said agreement and verdict set aside and the case remanded to the circuit court to be there regularly proceeded in as though no such agreement • had been made. (p. 214.)</p> <p>2. Tn making up the transcript for this Court papers or documents referred to in and made parts of a demurrer to evidence or bills of exceptions should be plainly identified ; and great care should be taken to have the transcript so copied and arranged as to show clearly what are legally parts of it, in order that ihis Court can ascertain certainly and without doubt or conjecture the questions really presented for its determination, fp. 235.)</p>

<p>1. The provision of the statute authorizing appeals to this Court in 'chancery causes, wherein there is a decree “adjudicating the principles of the cause,” authorizes such appeal, only where the decree appealed from adjudicates all the controversies between the parties raised by the pleadings or otherwise in the cause, (p. 219.)</p> <p>2. Where the record in a cause shows that the pleadings present two or more controversies between the plaintiff and the different defendants, only one of which was passed upon by the circuit court, and the others left undecided,.this Court will dismiss the appeal as having bepu improvidently awarded, (p. 219.)</p>

<p>(* Johnson, Pbbsident, Absent.)</p> <p>1. WLere the report of a commissioner is not excepted to while it remains in his office, and before it has been returned into court, the evidence which was before the commissioner, on which he acted in making his report, is no part of such report, unless made so by the order of the court or by the report itself, (p. 226.)</p> <p>2. Where no exceptions have been filed to the report of a commissioner while it remained in his office, and before he returned the same into court, it is not the duty of the commissioner, unless required by the Court to do so, to return with his report the evidence, which was before him, on which he acted in making his report; and if a party afterwards excepts thereto, the court in considering such exceptions will only regard such errors, as appear upon the face of the report, (p. 227.)</p> <p>3. Where the report of a commissioner, which has not been excepted to, before the same was returned into court, is afterwards excepted to, and the evidence, which was before the commissioner, on which he acted, has not been returned as part of such report, such exceptions will be regarded as made for errors appearing upon the face of the report; and in such case, the same can not be impeached on grounds or in regard to matters which may be affected by extraneous evidence, (p. 227.)</p> <p>4.When a party excepts to portions of a commissioner’s report, the portions not excepted to, are admitted to be correct not only as regards the principles but as relates to the sufficiency of the evidence on which they are founded, (p. 227.)</p> <p>5. A case in which a decree appealed from was amended in important particulars by 'the appellate court, and so amended, af- ■ firmed, (p, 228.)</p>

<p>It is not sufficient to reverse a decree, that it is erroneous. Errors must appear to the prejudice of the party complaining thereof.</p>

<p>1. An entry is made in two cases, one a common law suit and the other a chancery cause, in these words : “This day by consent and agreement of parties the two above causes are referred to W. E. Reed, one of the commissioners of this court, who is hereby directed to make, audit, settle and state and return to this court at the nes t term, an account between the plaintiff and W. G% H. Core, of all the matters contained in said suits, and said commissioner is to hear the parties and any proper evidence offered, and to take the evidence in writing and to return the same with his report, and the said commissioner is directed to give the parties interested ten days’ notice of the time and place of executing this order, and such report shall be entered up as the judgment of this court,” Held :</p> <p>This is a submission to arbitration, not a simple order of reference ; and on the report of said commissioner being returned to the court, it should be treated, as though it was an award, not as an ordinary report of a commissioner in chancery subject to such exceptions, as would lie to such a report ordinarily.</p> <p>2. Though one of these causes so referred to a commissioner as an arbitrator was an injunction-suit to stay the enforcement of a common law judgment obtained by the defendant against the plaintiff, till a re-hearing of the matter involved in the common law suit could be had, and the grounds, on which this interference on the part of the chancery court was sought, as stated in the bill were frivilous, and though such inj unction ought not to have been granted or suit entertained, and the case set out in the bill was such, that on the hearing the bill ought to have been dismissed at the plaintiff's costs, yet after it was thus agreed to submit the cause to arbitration, the court ought on the return of the award to entertain such suit despite the defective bill and entera decree in accordance with the award according to the agreement of the parties, unless after being summoned to show cause against it the parties show good cause, why such award should not be held to be valid and such a decree entered.</p>

<p>1. A special session of a county court can only be held legally, after a notice of the time of such special session and the purposes, for which it will be held, shall have been posted by the clerk of said court at the front-door of the court-house of the county at least two days before said session is to be held. (p.'252.)</p> <p>2. And to give such special session any jurisdiction in any matter it must appear upon its record-book, that such a notice, as is above described, was so posted, and it must also appear from such entry on its record-book what were the purposes, for which the special session was to be held as stated in said notice, (p. 255.)</p> <p>8. If such an entry, as is above described, is not made on the record-book of such special session of a county court, everything, which may be done by the court at such special session, must be held to be an absolute nullity, (p. 255 )</p> <p>4. The jurisdictional facts necessary to give a court of special and limited jurisdiction a right to act must appear in the record of its proceedings, or such proceedings will be regarded as had without any jurisdiction and therefore as absolute nullities, (p. 255.)</p>

<p>I. The seventh clause of our statute of frauds — ch. 98 of Code — does not include an agreement, which is simply not likely to be performed, nor yet one, which is merely expected to be performed, within the space of a year ; but it does include any agreement, which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time does not admit of performance according to its language and intention within a year from the time of its making. (p. 262.)</p> <p>2. It is well settled, that courts of equity will notwithstanding the statute of frauds enforce oral contracts for the sale of land which have been partially pei formed; and when the failure to complete the contract would operate as a fraud, such courts may exercise a similar jurisdiction with regard to chattels ; but courts of law will not enforce such contracts contrary to the provisions of the statute, (p. 264.}</p> <p>3. But it is a general rule, that where one has rendered services, paid a consideration, or sold and delivered goods in execution of an oral contract, which on account of the statute can not be enforced against the other party, such one can in a court of law recover the value of the services or of the goods upon a quantum meruit or valebant, (p. 265.)</p> <p>4. This general rule, however, is limited and confined to cases, in which the services rendered, the goods delivered or consideration paid inured to the benefit of the defendant; and in such cases the recovery is not upon the contract but upon the quantum meruit or valebant or upon the money counts. vp- 265.)</p> <p>5. A plaintiff and defendant with others borrow money for a corporation, of which they are stockholders, and give their negotiable notes therefor payable at four months, on which their names appear indifferently as makers and endorsers, upon the expectation, that the corporation will pay the money borrowed, and with the verbal agreement among themselves, that in case the corporation fails to pay the money, and any of them has it to pay or pays it, the others will refund to him their equal proportion of the sum paid ; .subsequently the notes thus given are consolidated into one note payable one year after date, upon which the plaintiff is maker and the defendant and others are endorsers ; this note after its maturity is paid off by the plaintiff, and he brings his action against the defendant for his proportionate part of the money so paid by him, Held :</p> <p>I. That the making1 of the consolidated note operated not only as a renewal of the obligation to the creditor but impliedly as a renewal and continuance of the verbal agreement between the maker and endorsers modified so far only as to make it correspond with the date and terms of the new note;</p> <p>II. The new note being by its terms incapable of performance within a year from its date ; and the verbal agreement, being likewise incapable of performance within the year, it is inoperative and void under the statute of frauds ;</p> <p>III. The payment by the plaintiff inuring to the benefit of the corporation and not the defendant, the plaintiff is not entitled to recover for money paid from the defendant, (p. 266.)</p>

<p>1. If a recorder of a city should issue a summons against a person to answer for a violation of an ordinance of the city, which was a nullity because contrary to the constitution, would such person be entitled to writ of prohibition upon such summons being served, or would his application for such writ at that time be premature; and Qucere: Would he have a right to this extraordinary writ in such a case at any time, or would he have to rely upon his ordinary remedy by appeal ? (p. 271.)</p> <p>2. There must be a rule to show cause, why the prohibition should not issue, before the writ is issued, (p. 283.)</p> <p>3. The rule to show cause operates as a prohibition until the further action of the court, (p. 283.)</p> <p>4. Though the charge in a city court be one, in respect to which the party is entitled by see. 10 of our bill of rights to a trial by jury, yet, if by an appeal clogged with no unreasonable restrictions he can have such a trial as a matter of right in the appellate court, his constitutional right of a trial by jury is not invaded by a summary proceeding in the first instance in the city-court, (p. 279.)</p> <p>5. The ordinance of the city of Parkersburg requiring a city-license to sell spirituous liquors within the city is constitutional, as also is the ordinance imposing a fine of from §1,00 to §20.00 on any person selling Spirituous liquors in said city without such city-license, tobe imposed by the recorder of said city, and subjecting the offender to imprisonment by order of the recorder for not exceeding thirty days, if such fine and the costs of the proceedings are not paid, as the Legislature by act of February 7, 1870, has granted an appeal in such case to the circuit court of Wood upon terms and conditions deemed not unreasonable, and the defendant can then have his case tried by a jury of twelve men, if he wishes, (p. 281.)</p>

<p>1. A declaration by a servant against his master for injury caused by the explosion of fire-damp in a coal-mine need not with particularity state the acts of omission or commission, which constituted the negligence of the master : if it is specific enough to inform the master, of what he is called upon to answer, so that he will not be surprised at the trial, it is sufficient, (p. 288.)</p> <p>2. If the facts stated in the declaration show, that the .plaintiff was guilty of negligence, which immediately and directly contributed to produce the injury, the declaration is fatally defective; but contributory negligence need not be negatived in a 'declaration. (p. 290.)</p> <p>3. When a servant enters into the employment of a master, he assumes all the ordinaryrisks incidentto the employment, whether the employment is dangerous of otherwise, (p. 300.)</p> <p>4. The master must provide for the safety of his servant, as far as can reasonably be expected under the circumstances ; but he is not obliged to take) more care of his servant, than he would be expected as a prudent man to take of himself, (p. 300.)</p> <p>5. If a servant wilfully encounters dangers, which are known to him or are notorious, the master is not responsible for an injury occasioned thereby, (p. 300.)</p> <p>6. The measure of care, which a master must take to avoid responsibility for injury to his servant, is that, which a person of ordinary prudence and caution would use, if his own interests were to be affected, and the whole risk were his own. (p. 300.)</p> <p>7. Negligence and ordinary care are correlative terms. What constitutes ordinary care depends on the circumstances of each particular ease. It is such care as a person of ordinary prudence would exercise under the circumstances, (p. 300.)</p> <p>S. If the master has been guilty of negligence in failing to procure suitable appliances or machinery for carrying on his business, and injuries result therefrom to his servants ; he must respond in damages, unless the servant well knowing the default of the master in this respect enters upon the employment or continues thereinafter such knowledge, in which case he assumes the'increased risk and can not hold the master for the consequences; but if the servant knows the defect or danger and has reasonable grounds to believe, that the master has cured or would immediately cure the same, he is not guilty of negligence by remaining in the service and may recover for inj ury caused by such negligence of the master, (p. 300.)</p> <p>9. The master is not bound to furnish for his workmen the safest and best machinery nor to provide the best methods for the work, in which he is engaged, in order to save himself from responsibility for injuries to his servant. If the machinery and appliances, which he has, be in common use and are such as can with reasonable care be used without danger to the employe, it is all that can be required of the employer, (p. 300.)</p> <p>10. The owner of a coal-mine is not required to resort to the most expensive methods for keeping his mine free from fire-damp in order to escape responsibility to his servant working in the mine for injury caused by an explosion oí fire-damp. If he has reasonably safe methods in use for the proper ventilation of the mine and uses reasonable care to keep the mine properly ventilated and the fire-damp expelled therefrom, he will not be responsible. He is not held to extraordinary care. (p. 300.)</p> <p>11. If the proprietors of a coal-mine have been negligent in permitting fire-damp to accumulate in their mine, which will not produce any injury until ignited, and it be ignited by a fellow-servant, who goes into the dangerous part of the open mine with a lighted lamp instead oí a safety-lamp contrary to the orders of the proprietor of the mine, and by such lighted lamp the ./ire-damp is ignited and exploded, by which a servant is injured, such explosion and injury having been directly and immediately caused by the act of the fellow-servant and not by the negligence of the master, the master under the circumstances can not be held responsible for such injury, (p. 305.)</p>

<p>1. Under the provisions of our statute — Code, ch. 66 — a married woman, living with her husband, may maintain an action at law for injuries done to her separate real estate by the construction and operation of a railroad, without uniting her husband in the action, (p. 308.)</p> <p>2. If in such action the plaintiff desires to recover damages not only for the disturbance to the possession but for permanent injury to the property, the declaration should show by proper averments that its object was to recover damages for such permanent injury. {p. 309.)</p> <p>3. If, however, the declaration does not contain such averments of permanent injury to the property, it will not for that cause alone be bad on demurrer ; and if the plaintiff offers to the jury with- | out objection by the defendant evidence of such permanent in-I jury, the plaintiff may recover therefor on such declaration, and such recovery will be a bar to any future action for such injury, (p. 309.)</p> <p>4. A deed from a husband to his wife for real estate, while inoperative and void at law, is nevertheless valid in equity and will confer upon the wife a good equitable estate, which in all eases will be enforced against the husband by a court of equity, (p. 310.)</p> <p>5. Where a wife has the possession and is such equitable owner of real estate, she may, under the provision of our bill of rights, sec. 9, Art. III. Const., recover damages from a railroad company for injuries done to such real estate by the construction and operation of its road, without uniting her husband in the action, (p. 312.)</p> <p>6. In such action it is not error for the trial-court to permit the plaintiff to read to the jury adeed made toplaintiffby her husband for such real estate, (p. 313.)</p>

<p>1. The return of a sheriff, that he had served a writ on a foreign insurance company doing business in this State by serving it on its “lawful attorney," is prima faoie a good service of the writ and gives to the court jurisdiction to render a personal judgment against such foreign insurance company. The words “lawful attorney” on such return are regarded prima, facie as meaning the attorney, on whom the statute-law authorizes such process to be served, and the service upon whom is declared to be equivalent to service on such foreign insurance company, (p. 321.)</p> <p>2. When in a common law suit a jury is waived, and the case is submitted to the decision of the court by consent of parties, and the court hears apart of the evidence and then continues the case to the next term of the court, when it hears the balance of the evidence and decides the case on the whole evidence, neither party objecting to its so doing, such judgment will not be reversed for the only reason, that the evidence was submitted at two different terms of the court. ■ Quaere: Would it be reversed for this cause only, even had the party asking its reversal objected to this action of the court below and asked, that the whole ease be heard de novo at the term of the court, when it was decided, and his objection to the court considering evidence offered at two different terms entered of record? (p. 324.)</p> <p>3. If in an attachment suit against a non-resident defendant the writ is served on him, and a personal judgment is rendered against him, and afterwards the amount due from the garnishee is judicially ascertained to be less than this judgment against the non-resident defendant, such garnishee should be ordered to pay the amount of his indebtedness directly to the plaintiff as a credit on his judgment and ought not to be ordered to pay it to a receiver, and the receiver ordered to pay it to the plaintiff on his judgment against the non-resident defendant, (p. 326.)</p> <p>4. If there be a suggestion, that the garnishee has not fully disclosed his indebtedness, and the amount found on the trial to be due from him be ascertained Anally to exceed the amount he confessed, there should be included in the judgment against him the costs of such trial, (p. 328.)</p> <p>5. Though the indebtedness of the garnishee to the non-resident defendant be such, that the defendant could not sue without first making a demand upon him, yet, though no such demand has been made upon him, he may nevertheless be summoned as a garnishee, and a judgment may be obtained against him as such, (p. 334.)</p> <p>6. A contingent debt though arising out of a contract can not be garnished. As it would be unjust to the garnishee to render a judgment against him on a contract, when the amount apparently due may according to the terms of the contract be extinguished by subsequent events. But though for their convenience the garnishee and the non-resident defendant keep books in such a way that the amount apparently due at any timeon their books by the garnishee may be decreased by further enquiry into existing facts, such a debt is not properly speaking contingent, and its payment may be enforced by proceedings against him as a garnishee, (p. 335.)</p>

<p>1. It is an established rule of commercial law, that the drawee of a bill of exchange is presumed to know the hand-writing of the drawer, and a fortiori the maker of a negotiable noté is presumed to know his own signature ; and if the drawee accepts or pays the bill, or the maker pays the negotiable note in the hands of a bona fide holder, although the drawer’s or maker’s name has been forged, he is bound by the act and can not recover back the money so paid.</p>

<p>1. A bill in equity, notwithstanding it contains many vague and irrelevant allegations, will not be held ba'd on demurrer, if taken as a whole it states facts which entitle the plaintiff to relief, (p. 367.)</p> <p>2. Under the provisions of our statute — Code, ch. 79, sec. 1 — a court of equity in a suit for the partition of lands. may take cognizance of all questions of law affecting the legal title that may arise in the proceeding, such as removing a cloud from the title or passing upon an adverse claim to the land, (p.368.)</p> <p>3. It is a well settled doctrine, that he who accepts a benefit under a will must adopt its whole contents, co lforming to all its provisions and renouncing every right inconsistent with it; consequently, where a testator has affected to dispose of property not his own and has given to the owner of that property a benefit, such owner accepting the benefit can not claim the property thus disposed of in opposition to the will. (p. 371.)</p> <p>4. A testator provides in his will that a certain person therein named shall decide all questions, which may arise among his devisees and legatees in relation to the construction of his will, and that the written opinion of such person shall be final, Heitd :</p> <p>That the written opinion of such person, if made without fraud and corruption, will be treated by the courts as final and conclusive of the matters decided as between the devisees and legatees affected thereby, (p. 373.)</p>

<p>1. An indictment for breaking and entering a storehouse not adjoining a dwelling-house with intent to commit larceny, which fails to state the ownership of the storehouse so broken and entered, is fatally defective, (p. 377.)</p> <p>2. If such indictmentcontains sufficient averments to make it a good indictment for grand larceny, the charges in regard to the breaking and entering the storehouse may be treated as surplusage, and a conviction upon theindictmentmay besustained. (p. 377.)</p> <p>3. The possession of stolen goods is a circumstance tending to show that the person found in the possession is the thief, and the jury may consider it in connection with all the other attending circumstances and facts in proof, but of itself it is not prima facie evidence of guilt, (p. 379.)</p> <p>4. An indictment for larceny charges that the goods stolen were the property of Robert Buster, while the proof shows that the owner of the goods was James Robinson Buster, sometimes called Rob., Robin and Bob. Buster, to which names he answered. Held :</p> <p>In the absence of evidence to show that the owner of the goods was some other" person than the one named in the indictment the variance is not fatal. (p.379.)</p> <p>5. A case in which the action of the trial-court refusing to set aside the verdict upon the alleged ground, that it was contrary to the evidence, is sustained and confirmed by this Court.</p>

<p>1. In assumpsit by a principal against his agent for the value of goods sold on credit by the agent to insolvent persons contrary to the positive instructions of the plaintiff it is not necessary to aver in the declaration, that there was an express contract between the plaintiff and defendant that the latter should not sell on credit, it is sufficient to aver, that the sale was made in violation of the plaintiff’s instructions, and that thereby the value of the goods was lost to the plaintiff, (p. 383.)</p> <p>2. It is a well established doctrine, that, where there has been a tortious taking of goods, the owner may bring trespass for the taking, or waiving the trespass he may bring trover for the conversion, or, if the goods have been sold and the money received, or the goods otherwise appropriated or consumed, he may waive the tort altogether and bring assumpsit for their value, (p. 384.)</p> <p>3. Assumpsit will lie for goods or money of a principal embezzled by his agent, and a special count setting out such embezzlement maybe joined with the common counts, (p. 384.)</p>

<p>*(Snyder, Judge, Absent.)</p> <p>1. Where the report of a commissioner is not excepted to, while it is retained in his hands for examination, before it is returned into court, the evidence, which was before him, on which he acted in making it, is no part of his report, unless required to be so made by order of the court, or it be so made by the commissioner, (p. 304.)</p> <p>2. No exceptions having been filed to the report of a commissioner, while it is so retained in his hands, before he returns the same to court, it is not his duty, unless so required by the court, to return with it the evidence, which was before him, on which he acted in making his report; and if it be afterwards excepted to, the court in considering such exceptions will only regard such errors as appear upon the face of the report; and in such a case the report can not be impeached on grounds or in regard to matters, which may be affected by extraneous evidence, (p. 394.)</p> <p>3. Where the owner of lands has suits pending between him and other parties claiming the same lands, employs counsel to prosecute his suits to recover the same, and contracts to pay him certain fees for his services as such counsel, the amount of which are wholly or in part contingent upon the recovery of the land in controversy, such contract is not champerty, (p. 397.)</p> <p>4. Where J. G., a tenant in common with ,T. A., of lands, for the recovery of which it is necessary to bring and prosecute suits against other parties claiming the same lands, accepted and agreed to act under a power of attorney for J. A. authorizing him to sell, assign and transfer the interest of J. A. in said lands, and at the expense of J. G. to sue for, and recover the same from every incumbrance that other persons may have thereon, but without any compensation therefor, such agreement or contract is not champerty, (p. 397.)</p>

<p>1. Where parties have made a settlement of their business transactions, such settlement is conclusive upon the parties thereto as to the correctness thereof in the absence of accident, mistake or fraud in making the same. (p. 408.)</p> <p>2. The execution of a note or bond given by one of the parties to the other for the balance found due to him upon such settlement is conclusive upon all the items of the included account in such settlement in the absence of accident, mistake or fraud in making the same. (p. 408.)</p> <p>8. A party to such settlement seeking to re-open the same on any of said grounds must distinctly allege and by clear and convincing evidence prove the particular facts, wherein such accident, mistake or fraud consists, and failing to do this, his bill will be dismissed. (p. 408.)</p> <p>4. Upon a bill filed to re-open such settlement on the ground of accident, mistake or fraud the burden of proof rests upon the plain-tiif to show the existence of the grounds alleged for re-opening the same, and not upon the defendant to show, that there is no error in such settleinet. (p. 409.)</p> <p>5. A case, in which a petition filed in 1883, to re-open a settlement made in 1867, and another made in 1879, on the grounds of alleged mistakes therein, and to recover from the estate of a party to such settlement a large sum of money paid to it under such alleged mistakes, after all the parties engaged, concerned or interested in making the same, except the plaintiff, have been dead for many years — was dismissed by the Appellate Court, (p. 417.)</p>

<p>1 If an action is brought to recover back money paid on a war-trespass judgment, which money was paid before the adoption of the Constitution, Art. VIII., sec.. 35, which declares void a judgment recovered for an act done in the late war “according to the usages of civilized warfare,” a recovery could be had, if at all, in such action only by virtue of such provision ; and the right of action accrued as soon as the Constitution was adopted ; and an order thereafter made setting aside said judgment under the provisions of sec. 3 of ch. 58 of the Acts of 1872-3, upon the only issue in the case, which was on the plea of the statute of limitations, would be immaterial evidence, and the court would not err in refusing to admit it in evidence, (p. 420.)</p> <p>2. Upon an issue upon the plea of the statute of limitations the court did not err to the prejudice of the plaintiff by admitting in evidence a deed, which tended to fix the date of the transaction, out of which the action arose, (p. 421.)</p>

<p>*(Snyder, Judge, Absent.)</p> <p>1. Where a suit was brought, and after more than three months had elapsed, the plaintiff sued out process to answer an amended bill, which so-called amended bill recited thatan original bill had been filed, and asked that the so-called amended bill, which fully stated the grounds of complaint, should be substituted for the original bill, and the answers denied that any original bill had been filed, and fully answered the allegations and charges of the so-called amended bill, and a decree was pronounced thereon, the Appellate Court will not because of these facts reverse the decree and dismiss the said bill. (p. 425.)</p> <p>2. Where A. conveys a tract of land to B. with intent to defraud his creditors, of which B. has notice, and B. conveys the land to C., an innocent purchaser, for a certain sum, which he pays to B., and which is proved by the evidence in _ the cause, and the court sets aside the deed from A. to B. for fraud and renders a personal decree for the amount with interest which B. received for the land ; held no error. There was no necessity for an account to see what the value of the land was, unless the appellant was dissatisfied with the value as fixed by B., as B is not prejudiced by being required to pay only what he received in fraud of the creditors of A. (p. 426.)</p> <p>3. In a suit to subject land to the payment of a judgment-lien and to set aside deeds for fraud against the creditor it is the practice to decree that the costs of the suit shall be first paid out of the proceeds of the sale of the land. (p. 427.)</p> <p>4. Where a suit has been brought to subject lands to the payment of a lien and to set aside fraudulent conveyances, where the report of sale has been made, and it is found there will not be sufficient money produced by the sale to pay the liens, expenses of sale and costs, for whatever costs remaining after providing for the payment of the liens and expense of sale, there should be rendered a personal decree against all the fraudulent grantors and grantees, (p. 427.)</p>

<p>*(Snyder, Judge, Absent.)</p> <p>1.In a chancery suit brought to enforce the judgment-liens on a debtor’s land,.where a decree for the sale of the land is rendered, and an appeal and supersedeas to such decree is granted, the obli-gors in the appeal and supersedeas-bond are not responsible! where the decree below is affirmed, and the lauds sell for a sum insufficient to pay the judgment-liens, for any portion of the rents and profits of such lands, while the cause was pending in the Appellate Court, or for any loss which the appellees may have sustained by reason of the receipt of such rents and profits by the debtor, while the cause was pending in the Appellate Court, instead of the sum being applied to the payment of such liens, (p. 434.)</p> <p>2. But in such a case the circuit court may, to preserve the rents and profits in a proper ease, appoint a receiver, notwithstanding the case is pending in the Supreme Court of Appeals upon a, superse-deas. (p. 433.)</p> <p>3. But no such receiver of real estate or of the rents and profits thereof in such case or in any other case can be appointed, until reasonable notice of the application therefor has been given to the owner or tenant of the lands, (p. 434.)</p> <p>4. From an order of a circuit court improperly appointing such a receiver of lands and thus requiring a change of its possession the owner of the lands so dispossessed of may appeal, though the principles of the ease be not decided, (p. 485.)</p>

<p>1. In an action of debt, the declaration declares on a note, dated August 9, 1884, the case is tried on the plea of nil debet and the court against the objection of the defendant permits the plaintiff to read in evidence a note dated August 9, 1883, Held :</p> <p>The variance between the note declared on and the one admitted in evidence is fatal, and the action of the court was erroneous, (p. 437)</p> <p>2. In such action, the declaration describes the note sued on as “a certain promissory note” and mentions no place of payment, and the court permits the plaintiff against the objection of the defendant to read in evidence a negotiable note payable at the Kanawha Valley Bank, Held :</p> <p>This was error for which the judgment in favor of the plaintiff is reversed by this Court. ( p. 438)</p>

<p>1.The return of a sheriff on process, that he executed the same “on Lewis Lusher by leaving a copy of the within with Betty Lusher, daughter of Lewis Lusher, she being a white woman over the age of sixteen years,” is fatally defective, (p. 441.)</p> <p>2. Where a return of a sheriff on process is fatally deiective, and there has been on such return a judgment entered “by default,” the defendant under sec. 5 of ch. 134 of the Code, may on motion have such judgment set aside for such error, and if such motion is overruled, the judgment will be reversed on writ of error. (P- 441.)</p> <p>3, Where a joint judgment is rendered against two by default and for a defective return as to one, if it is reversed, it must he reversed as to both defendants, (p. 442.)</p>

<p>(*Snyder, Judge, Absent.)</p> <p>Although a deed be made for a valuable consideration, yet if the intent of the grantor in making it was to hinder, delay or defraud his creditors, the deed is fraudulent in fact as to the grantor, and also as to the grantee, if he had notice of such fraudulent intent.</p>

<p>In an action by the administrator of a deceased person the wife of the defendant is not a competent witness to give evidence against the plaintifl in regard to any transaction or communication had personally between the wife or her husband and such deceased person. In such case and as to such transactions or communications the statute — sec. 22, ch. 160, Acts of 1882 — does not change the common law rule of evidence.</p>

<p>1. Where the plaintiff in a suit exhibits with and makes part of his bill the record of an action at law, the facts disclosed by such record thereby become averments of his bill to be considered in connection with the other averments, (p. 461.)</p> <p>2. Where a party is entitled to avail himself of an equitable defence under the statute — sec, 5, eh, 126, Code — but does not do so, and a judgment is given against him at law, he will still be entitled to relief in a court of equity under sec. 6 of said statute, and to entitle him to relief in equity against the judgment it is not necessary, that he should aver in his bill any reason or excuse for not availing himself of such equitable defence at law, (p, 461.)</p> <p>3. If under the provisions of said statute a defendant avails himself of such equitable defence in the action at law, and the same is fairly tested on its merits by issue on the pleas setting forth the matters of such defence, and such issue is found against the defendant, whether such Issue was one of law raised by demurrer to the plea or one of fact submitted to a jury, he will thereby be precluded from setting up the same matters in a bill for relief against the judgment at law in a court of equity, (p. 462.)</p> <p>4. A suit, in which relief in equity against a judgment at law is denied upon the ground that the material matters relied on in the plaintiff’s bill for relief had been relied on and adj udicated in the action at law, in which the judgment was rendered, (p. 466.)</p>

<p>| Where land has been sold at a judicial sale, the sale confirmed, and a conveyance made by the consent of the purchaser to his assignee, who has entered into actual possession of the land under such conveyance, and has - so held the same for more than ten years, and afterwards the decrees ordering and confirming the sale, the conveyance made in pursuance thereof, and the sale itself has been declared invalid and set aside, the possession of the assignee of such purchaser under such sale and conveyance is not adverse to the title of the owner of the land. (p. 479 — 480.)</p> <p>2. In such a ease the title of such assignee entering into and holding possession of said land, so sold at such judicial sale, is in privity with the title of the owner of the land. ip. 480.)</p> <p>3. If in such case, the assignee of such purchaser in 'posession of the land so purchased, during the time he holds possession thereof, plaees the land in his own name on the land-books of the assessor of the proper county, and the same is assessed with the taxes chargeable thereon, and pays the same ; and if during the same period, the land has been omitted from said land-books in the name of the owner, and he has paid no taxes thereon the payment of such taxes by such assignee inures to the benefit of the owner, and his title will not he forfeited, for omitting the land from the land-books, or for not paying the taxes on the land in his own name. (p. 481.)</p> <p>4.In an action of ejectment a party who relies upon his adverse pos session of the land in controversy under color or claim of title, will on trial be required to show, on what color or claim of title he relies, and also that his adverse possession of the premises in controversy has continued unbroken for the full period of ten years before the institution of the suit. (p. 480.)</p>

<p>1. Where a case is made out between co-defendants by evidence arising from pleadings and proofs between plaintifts and defendants, it is the duty of a court of equity to make a decree between the defendants in order that such defendants shall not be obliged to litigate such case in another suit. (p. 488.)</p> <p>2. A bill in equity is filed by all the individuals composing the partnership of R. & Co. and others to which the said partnership as such and others are made defendants, the principal object of the bill is to sell the property of a corporation and distribute the pro-eeeds among the holders of coupon bonds which are liens on.said property, but the bill also avers that the defendants R. & K. are indebted to R. & Co. in a specified sum, to secure which R. & Co. hold as collaterals a number of said coupon bonds owned by R. & K., the defendant K., of the firm of R. & K., by his answer denies that any such indebtedness exists or that said bonds are held by R. & Co. as collaterals. Held :</p> <p>The controversy thus raised between R. & Co. and R. & K. must be regarded as a controversy between them as plaintiffs and defendants, and not between them as co-defendants, it being immaterial that R. & Co, are not as a firm made plaintiffs to the bill since all the members composing said firm are plaintiffs and as such assert their claim against R. & K. (p. 489.)</p> <p>8. Where the dealings between merchant and merchant or merchant and factor have ceased and the accounts between them have been so adjusted that the party in whose favor the balance appears might bring an action at law thereon, then from the time of such adjustment the statute of limitations will commence to run as against such balance, (p. 490.)</p> <p>4. The accounts between merchant and merchant or merchant and factor, which are excepted from the operation of the statute, must be a direct concern of trade; liquidated demands which are only traced up to the trade of merchandise are too remote to come within the description, and they are not excepted from the bar of the statute, (p. 491.)</p> <p>5. By the dissolution of a partnership, the authority of one partner to bind the partnership in reference to any new contract, is revoked; therefore, after the dissolution, one partner can not, without special authority or the consent of his co-partners, execute a note for a debt due from the partnership that will bind the other partners; nor can he, without such authority or consent, transfer or pledge the partnership goods or securities to a third person even to secure a debt due to such third person from the partnership. (p. 492.)</p> <p>6. Where a creditor holds a pledge or collateral security for his debt, he will be entitled to retain the same in his possession against fcl.e pledger or debtor, notwithstanding the statute of limitations is, or might be, successfully pleaded againstthe debt for the security ' of which the pledge was made. (p. 494.)</p> <p>7. One partner is not entitled to claim from the partnership compensation for his services in the business without a special contract for such compensation.</p>

<p>1. No suit can be maintained against the county court of any county for the recovery of any sum of money due from such county founded on contract except an order on the county treasury, until such claim or demand has been presented to and disallowed in whole or part by such county court, or until an itemized account or statement thereof has been filed with the clerk of such court, and the court has neglected or refused to act thereon to the close of the second session of such court, next after it was so filed with such clerk, or to the close of the first session thereof, next after it was so presented to such court, (p. 501.)</p> <p>2. If such a suit be brought against the county court of-any county for the recovery of any such claim or demand, the declaration must substantially aver, that the same had been so presented to and disallowed in whole or in part by such court, or that such itemized account or statement thereof had been so filed with the clerk of such court, and that said court had so neglected or refused to act thereon ; and unless such averments substantially appear upon the face of the declaration, it will for that cause be demurrable, (p. 5ul.)</p> <p>3. In such a suit against the county court of Wayne county it was held upon demurrer, that the declaration contained substantially these averments, (p. 502.)</p>

<p>1. Depositions are copied into the transcript of the record of a chancery suit, with a memorandum of the clerk that they had been filed in the cause, hut they are not referred to or recognized in any order or decree, nor does it appear in any manner that they were read on the hearing of the cause, and they do not tend to support the decree appealed tom. Held : Such depositions are no part of the record and can not be considered by the Appellate Court, (p. 505.)</p> <p>2. Neither will a court of law nor a court of equity grant a new trial on the ground of after-discovered evidence, when such evidence goes merely to impeach the testimony of a witness on the former trial, nor to let in cumulative evidence as to matter which was principally controverted at the former trial, (p. 507.)</p> <p>3. Equity will not enjoin a judgment at law oil the ground of after-discovered evidence, when such evidence relates to a fact in issue on the trial at law, and in support of which testimony was offered on the former trial, unless it is of such a conclusive character, that, if it had been offered, it should have produced a different result, (p. 508.) ></p> <p>4. Equity will not relieve a party against a judgment at law on the ground of after-discovered evidence or a defence, of which he was .' ignorant, until after the j udgment was rendered, unless he shows, that by the exercise of ordinary diligence he could not discover such evidence or defence, or that he was prevented from employ-dug the same by fraud, accident or the act of the opposite party, unmixed with laches or negligence on his part. (p. 508.)</p> <p>5. Where relief in equity is sought against a judgment at law on the ground of usury, the bill must put the usury directly in issue, (p. 510)</p>

<p>1. A decree ordering the sale of a defendant’s land is an appealable deeree under eh. 135 sec. 7, subdivision 7 of the Code, and therefore no error in such decree can be reviewed, unless the petitou for the appeal was presented within five years after such decree was rendered (reduced now to two years by Acts of 1882, cli. 157, sec. 3, p. 506). .Even though such decree was not a final decree, and a final decree was subsequently rendered, and an appeal was properly obtained from it, if the error in this final decree arose solely from errors in such decree of sale followed in the final decree, (p. 523.)</p> <p>2. A failure for fourteen years to make any entry of a cause at all or to make any entry but a continuance , is no discontinuance of the cause, if the court has made no order dismissing the cause for want of prosecution, as provided by sec. 8, of ch. 127 or the Code. (p. 527.)</p> <p>3. But when a decree for the sale of land has remained unexecuted for fourteen years, and a petition or bill is filed by the debtor asking the enjoining of such sale of his land, because the debt, for which the land had been decreed to be sold, had since the decree been paid in full, and the .truth of the facts stated in such bill are sworn to by the debtor, the court should enjoin such sale until the further order of the court and should refer the cau?e to a commissioner to ascertain what, if anything, is still due on such debt. (p. 527.)</p> <p>4. Where one is indebted to another in several debts, and the debtor makes payments without directing to which of the debts the payments shall be applied, and the creditor makes no particular application of the payments when received, there is no settled rule that the payments shall be either according to the presumed intention of the debtor, or that they shall be applied in the manner most beneficial to the one or the other ; but it devolves on the court to apply them according to the justice of the particular case with a view to. all its circumstances. (p. 531.)</p> <p>5. A court in granting or refusing a continuance of a cause ought to exercise a sound discretion, and if a party be ruled into a trial or hearing of a cause, when it appears he was entitled to a contnuance, the judgment or a decree against him will be reversed by an appellate court; but the appellate court will not reverse the judgment or decree of the inferior court for such reason, unless its action was plainly erroneous, (p. 534.)</p> <p>6. As to any matter not theretofore adjudicated, if a deposition be taken and returned before the final hearing of a cause, it may be read; but the right to have it read is not an absolute right. (p. 536.)</p> <p>7. If a cause has been referred to a commissioner, and ample opportunity has been afforded to both parties to introduce their wit-nessess, and the commissioner has made his report, and the cause is ready for hearing, a deposition afterwards taken as to a con-trovertecl matter in tlie report ought generally to be disregarded by the court, (p. 537.)</p>

<p>1.Where a party, against whom a judgment has been rendered by a justice, desires' to appeal therefrom, he is entitled to such appeal as a matter of right, if within ten days after the date of such judgment he make application therefor to such justice and file with him the appeal bond prescribed by sec. 164, of cli. 8 of the Acts of 1882. (p. 543.)</p> <p>2.If he fails to obtain such appeal from such justice within ten days, he may within ninety days from the date of such judgment, upon application made to the circuit court of the county in term or to the judge thereof in vacation, upon filing such application and appeal-bond, and showing by his own affidavit or otherwise good cause for not having taken such appeal within the ten days, obtain an appeal from such court or judge, (p. 543.)</p> <p>3.Upon application to such court or judge for such appeal the facts relied on as showing “good cause” must be set out in such application, and they must show that he was prevented from taking such appeal within the “ten” days by fraud, accident, surprise, or adventitious circumstance beyond his control, as would entitle him to a new trial, (p. 544.)</p> <p>4.If the application for such appeal be not made within ninety days from the date of such judgment, the court or judge, to whom the application is made, lias no authority to grant such appeal, and if in such case the appeal has been so granted, it will be dismissed as iraprovidently allowed, (p.543.)</p>

<p>1. Where a verdict has been rendered on an indictment for an injury done with intent to maim &c. under sec. 9, of ch. 118 of the Acts of 1882, finding the defendant not guilty of doing the act maliciously, but guilty of unlawfully doing the act charged, the court can not under the statute sentence the prisoner to confinement in the penitentiary and also impose a fine, (p- 547.)</p> <p>2. In such case, where such a judgment has been rendered, this Court will not on reversing the judgment enter such judgment, as the circuit court ought to have rendered, but will remand the case for a proper judgment to be entered on the verdict, (p. 548.)</p>

<p>1. Where a suit is brought to set aside a fraudulent conveyance made by a husband to his wife, depositions taken after notice given to the wife may be read as against her, and although read against her husband also, and she alone appeals from the decree setting aside her deed, she can not have the decree reversed, because her husband had no notice of the taking of the depositions, (p. 552.)</p> <p>2. In such a case counsel for the wife at her request has no right to appear for her husband to object to the depositions for him, on the ground that he had no notice of the taking of such depositions. (p. 552.)</p> <p>3.. Where it is shown, that there was fraud in fact in the making of a deed conveying real estate, whether the actual fraudulent intent relates to existing creditors oris directed exclusively against subsequent creditors, the effect is precisely the same, and subsequent as well as existing creditors may for such fraud successfully impeach such conveyance, (p. 553.)</p> <p>4. If the deed is fraudulent in fact, it matters not, whether the grantor had much or little property, when the conveyance was made. (p. 554.)</p>

<p>1. The debt of a general creditor of a married woman does not constitute a lien or charge upon the separate estate real or personal of such married woman prior to the institution of suit by such creditors to subject such separate estate to the payment thereof. In such suit the court will sell the separate personal property of the feme eovert and apply the proceeds of the sale thereof to the payment of the debt, but will not sell the corpus of her real estate to pay such debt, but will only subject the annual rents and profits during the joint lives of herself and husband, or more accurately speaking, during the existence of the coverture, to the payment of such debt. (p. 559.)</p> <p>2. In such a suit other general creditors of the feme eovert ought not to be made defendants ; and except under peculiar circumstances other creditors of the feme eovert having deeds of trust upon the corpus of her separate real estate or other specific liens thereon, as for example a vendor’s lien, ought not to be made defendants in such suit. (p. 561.)</p>

<p>When personal property is taken in execution, and a third person applies to a court of equity to enjoin the sale on the ground of a prior incumbrance, the court has no jurisdiction in such a case, the rule being, that a court of equity can not interfere, when the plaintiff claims asan incumbrancer merely ; and when he claims as owner of the property, it can only interfere in cases, where from the peculiar nature of the property and circumstances of the case the remedy at law is incomplete, (p. 573.)</p>

<p>1. If a trustee as such claims a growing crop of wheat, which in his absence another trustee as such takes possession of and commences cutting, the cestui que trust in che fiist deed may file a bill asking that the second trustee may be enjoined from selling the wheat, which he has cut, and for the appointment of a receiver and other appropriate relief; for in such a case a court of law could furnish no adequate relief for the wrong complained of, and a court of equity has jurisdiction, (p. 595.)</p> <p>2. A deed of trust is given on a farm to secure a large debt, and the farm is advertised for sale by the trustee to pay such debt; the owner of the farm obtains an injunction to stay the sale, because, it is asserted, a large amount of usurious interest is included in the debt secured by the deed of trust; this injunction is dissolved and suit dismissed agreed on the creditor’s agreeing to purchase the farm and give the debtor eighteen months time to re-purchase it for a sum equal to the debt secured on it and interest, which is a fair price for the farm. The sale is made, and this arrangement carried into execution, the creditor getting an absolute deed for the farm, which he purchased atthe public sale, and executing with the debtor an agreement giving the debtor an option to repurchase the farm on the terms previously agreed upon, Heod :</p> <p>This transaction does not amount to a mortgage ; and to justify a court in so regarding it very strong parol evidence would be required as well as other circumstances indicating clearly, that it was a mortgage ; for the circumstance, that the creditor held a deed of trust upon this farm, renders it in the highest' degree improbable, that he could extend the time, in which * the debt was to be paid, upon a mortgage on the same farm, nothing else being given to him. (p. 596.)</p> <p>3. A. growing crop of wheat is realty and under the statute of frauds can be sold only by a contract in writing, (p. 605.)</p> <p>4. Where a trustee under an ordinary deed of trust to secure a debt sells land at a public sale, a crop of wheatgrowiug upon it sowed by the owner of the land passes to the purchaser of the land, unless it was reserved ; but such reservation of it at such sale need not be in writing but may be proven by parol evidence, (p. 614.)</p> <p>5. If before such sale there was an understanding between the owner of the land and a person, who, it was expected, would buy it at such public sale, that in making the purchase of the laud he was not to get the growing crop of wheat, but that it should continue to be the property of the owner of the land, then such growing-crop of wheat would not pass to such purchaser with the land, but it would after such sale continue to be the property of the former owner of the land, and such understanding need not be evidenced by any writing but may be proven by parol, (p. 614.)</p> <p>6. Under sec. 28 of cli. 78 of Acts of 1882 (Wartli’s Code, p. 743) a ' judge of a circuit court ought not to appoint a receiver of real property or of the rents, issues or profits thereof in vacation. But if he should do so, the blunder should be corrected by making an order when the court is in session requiring such improp- . erly appointed receiver to pay or pass over to the general receiver or toa special receiver appointed during the session of the court all money or property in his hands, (p. 616.)</p>

<p>1. Under secs. 1 and 2 of cb. 139 of the Code of West Virginia a decree against a general receiver of the court requiring him to pay out of funds then in the hands of the general receiver to a party to the cause, in which the decree is rendered, a certain sum on a named future day has the effect of a judgment for such sum of money with interest from the day, on which it is to be paid, with a-stay of execution till that day, and is a Hen on the landsof such general receiver, and the person entitled to the benefit of such decree or order is to be deemed a judgment-creditor and may enforce his lien as other judgment-creditors by a suit in equity.</p> <p>2. Said sections so construed are constitutional.</p>

<p>1. Where the decree sought to be reversed is based upon depositions, which are so conflicting and of such a doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusion to be deduced therefrom, the appellate court will decline to reverse the finding or decree of the chancellor, although the testimony may be such that the appellate court might have pronounced a different decree, if it had acted upon the cause in the first instance, (p. 641.)</p> <p>2. A cause in which the decree of the circuit court, setting aside a conveyance of real estate because fraudulent as to creditors of the grantor, is affirmed in accordance with the principle above declared. (p.6 42.)</p>

<p>(Johnson, President, absent.)</p> <p>Where a pensioner receives pension-drafts under the act of Congress and transfers said drafts or the proceeds thereof to a third person, who in consideration thereof conveys or' agrees to convey to the wife of the pensioner a tract of land ; and thereafter a suit is brought by judgment-creditors of the pensioner, whose judgments existed at the time said pension-drafts were received, Heed:</p> <p>Under sec. 4747 U. S. Rev. Sts. said land is not liable for the payment of said judgments.</p>

<p>1. Where a forthcoming bond is given lor the delivery of property levied upon by virtue of an execution, the failure to deliver such property on the day of sale will not cause a forfeiture of such bond, if before that day an injunction is obtained and is then in force against the enforcement of the said execution.</p> <p>2. If in such case a motion is made, either before or after the dissolution of the injunction, for an award of execution on such forthcoming bond, the court on the motion of the defendants should quash such bond and dismiss said motio a.</p>

<p>1. A creditor-having a judgment against his principal debtor causes an execution to be issued thereon, which comes to the hands of the sheriff and is levied by him on property of said principal debtor sufficient to satisfy said execution ; after such levy the sheriff, either with or without directions from the creditor, restores said property to the debtor, who disposes of it without satisfying said execution; and on the bond, upon which said judg. ment was recovered, another person is surety, who did not consent to the restoration of the property to said debtor, Held :</p> <p>The surety is released from all liability to the creditor for said debt. (p. 660.)</p> <p>2. The levy of an execution upon sufficient property to satisfy the same is prima facie, a satisfaction of the execution as to the execution-debtor. (p. 662.)</p>

<p>i. A suit cannot be removed from a State court to the circuit court of the United States, unless either all the parties on one side of the controversy are citizens of different States from those on the other side, or there is in such suit a separable controversy wholly between some of the parties who are citizens of different States, which can be fully determined as between them. (p. 667.)</p> <p>2. Within the meaning of the removal act the word resident is not equivalent to the W'ord eitizen. (p. 669.)</p> <p>3. A deed made by a debtor conveying the whole of his property to a trustee, giving a reasonable time for the creditors to accept it, and containing a provision, that all, who accept the deed, shall thereby release their claims against the debtor, is not fraudulent on its face. (p. 669.)</p> <p>4. Where a decision has been rendered in the State of Virginia and followed in two other cases in Virginia before the separation, the decisions will be followed by this Court without enquiring into the grounds, on which said decisions are based, (p. 670.)</p> <p>5. A deed of trust requiring a release from creditors accepting it held good on its face but fraudulent in fact, because the pleadings and evidence showed, that the grantor was a merchant, and within three months before the deed was executed he bought on credit about 85,000.00 worth of goods and sold the goods for cash below their market value, and when the deed was made he had only about $2,000.00 worth of goods on hand and no accounts due him for goods sold except S81.00, and admitted only $58.27 on hand in cash, and made no explanation whatever showing how he had disposed of the cash received for the goods, (p. 073.)</p>

<p>1.Where a suit has been brought to set aside a deed as fraudulent and subject the land to the payment of a judgment, whicli with interest is less than $100.00, but the land is worth $150.00, the judgment-debtor and grantor is not entitled to appeal from a decree declaring the deed fraudulent, but the grantee, whose land is subjected, the value thereof being more than $100.00, is entitled to an appeal, (p. 680.)</p> <p>2.The record must show, that this Court has jurisdiction of the appeal; and where the amount in controversy is the value of a tract of land, and it appears that the appellant bought the land for $150.00, and had actually paid $113.00 thereon, it does appear from the record, that the amount in controversy is over $100.00. (p. 680.)</p> <p>3.Fraud may be inferred from the facts and circumstances of the case ; and if these facts and circumstances are such as to make & prima facie case of fraudulent intent, they are to be taken as conclusive evidence of such intent, unless rebutted by other facts and circumstances in the ease. (p. 680.)</p> <p>4. A case in which it was held, that the prima facie evidence of fraud was clearly rebutted, (p. 681.)</p> <p>5. A decree for sale of land, which does not require the commissioner appointed to make the sale to firstexecute bond, will be reversed. (p. 681.)</p>

<p>1. A municipal corporation possesses and can exercise the following powers and no others : first, those granted by express words in its charter as the general statute under which it is incorporated; second, those necessarily or fairly implied in or incident to the powers thus expressly granted ; and third, those essential to the declared purpose of the corporation, not simply convenient but indispensable, (p. 688.)</p> <p>2. A city-charter conferring power upon a city-council “to make regulations for guarding against damage or damages from fires,” authorizes the council to make an ordinance establishing fire-limits and prohibiting the erection of wooden buildings within such limits, (p. 693.)</p> <p>3. In a ease brought to the Appellate Court to test the validity of an ordinance prohibiting within the fire-limits of a city the erection of houses, unless the same are built of “ brick, iron, stone or concrete,” which case shows, that the plaintiff in error has been fined for building a wooden building within said fire-limits, the Appellate Court will not consider, whether the ordinance was void, because it prohibited the erection of other buildings within the fire-limits than those specified in the ordinance. It is certainly good, solaras it prohibits within said limits the erection of wooden buildings, (p. 694.)</p> <p>4. A building constructed of wood with its sides covered with sheet-iron three sixty-fourths of an inch thick inside and out, is not an “.iron” building within the meaning of an ordinance which permits tlie erection of an “iron” building but prohibits the erection of a wooden one covered with sheet-iron. (p. 694.)</p> <p>f>. Punctuation must yield to the manifest intention of council expressed in an ordinance. (p. 696.)</p> <p>6. The fact that other citizens of acity had built houses in violation of a city-ordinance, against whom no complaint had been made, or proceedings had, will not estop the city authorities from punishing the violation of the ordinance, whenever complaint is made. (p. 696.)</p>

<p>1. The effect of a wife uniting with her husband in adeed conveying the absolute fee simple in land is not to vest in the grantee any estate separate and distinct from her husband but simply to relinquish a contingent right of dower, in the nature of an incum-brance upon the land conveyed, which, if not relinquished, would attach and be consummate on the death of her husband, (p. 708.)</p> <p>2. But such relinquishment of her contingent right of dower will only operate against her in favor of the grantee or those elaim- ' ing title under him ; and it will never operate in favor of a stranger not claiming under such grantee ; and as against such stranger she may claim her dower, though she has united in such a deed with lier husband, (p. 712.)</p> <p>3. If a man die leaving no issue, and he be seized of a defeasible estate in fee simple determinable by an executory devise over, on his death without leaving issue his widow may be endowed of such land ; for on the husband’s death not leaving issue but leaving a widow surviving him this defeasible estate of the husband is continued, so that the widow may be endowed of such land. (p. 705.)</p> <p>4. If a husband by a deed, in which his wife united, and which was acknowledged, certified and duly recorded as to both husband and wife, as required by our statute ch, 73 of the Code, conveyed to- a purchaser and his heirs forever the land, in which he had such defeasible estate in fee simple, which was determined by his death without issue, if he leave a widow, the vendee iu such deed is entitled to have the widow’s dower in said land laid off and to hold it during the life of the widow, (p. 721.)</p>

<p>1.On April 26,1878, “H.” owed “F.” $1,131.16 payable in four years, secured by bond and deed of trust: On March 7,1879, “F.” by formal deed assigned this debt to “B. F.” trustee, for the benefit of certain children and grandchildren of “ F.” and delivered the bond to such trustee. On May 25, 1880, “H.” procured from “ F.” a receipt for $400.00 to apply as a credit on the bond, but nothing had in fact been paid thereon, nor was there in fact anything due from “ F." to “JET.” On November 29, 1881, without the consent of the trustee or beneficiaries, “ F.” executed and acknowledged a formal release of the deed of trust which had been executed to secure the $1,181.16. “F.” having died soon afterwards, the trustee “B, F.” brought suit in chancery to annul and set aside said receipt and release, and to enforce payment of the balance of the debt remaining unpaid, by sale of the trust property; Held :</p> <p>I. That an assignment of a chose in action, is not one of the writings required by our recording acts to be recorded;</p> <p>II. That liF.” having by absolute deed of assignment assigned the debt of $1,131.16 and delivered the bond to the trustee, the assignment became irrevocable, and he had no longer any control over it, and that said “receipt” and “release” were both inoperative against the trustee and the beneficia-ríes in the deed of assignment;</p> <p>III. That a court of equity has jurisdiction of a suit brought to annul and set the receipt and release aside;</p> <p>IV. That having taken jurisdiction of such a suit, and annulled and set aside the “ receipt” and “release,” it will grant the plaintiff full relief, by entering a personal decree against “ H.” for balance of the debt still unpaid, and order the trust property to be sold to pay the same. (p. 739.)</p> <p>2- In any suit brought by a trustee for the trust-debt, where the trustee may possibly occupy the position of purchaser of the trust-property, it is the duty of the court to direct a sale of the property by a special commissioner other than such trustee, (p. 740.)</p>

<p>1. Qucere: — Does sec. 48, Art. VI. of our Constitution, which declares, “that no property shall be exempt from sale for taxes due thereon,” limit the right to sell the exempted property to the taxes assessed upon it alone, or may it be sold for taxes assessed upon other property and levied upon it?</p> <p>2. In a controversy as to the right to sell property of a value less than §100.00 levied upon to pay taxes exceeding §100.00, an appeal is allowed the party who claims the right to sell said property. Held :</p> <p>This Court has not jurisdiction to hear such appeal.</p>

<p>1. Equity will not relieve against a mistake in a written instrument, unless the mistake be perfectly distinct from the sense of the instrument. (p. 748.)</p> <p>2. A mistake in the execution of a writing will not in equity be corrected, unless it appears, that the writing does not contain the intention of the parties thereto at the time it was made ; and the proof of this either parol, written or both must not be loose, equivocal or contradictory nor in its texture open to reasonable doubt or opposing presumptions; for the .writing itself is regarded as evidence so strong, that only other unequivocal evidence irresistibly conclusive is sufficient to reform it. (p. 748.)</p>

<p>1. “K.” having died intestate seized of 296 acres of land left surviving him his widow and also ten children, his heirs at law. The dwelling-house upon the laud having been destroyed in his lifetime, his widow, who became his administratrix, built a new dwelling-house thereon and cut, sold and removed from the land large quantities of its most valuable timber. In a suit brought by some of the heirs against the others and the widow to have partition of the land, and also to charge the widow with the value of the timber so taken, sold and removed she claimed that the estate was indebted to her for moneys paid by her as ad-ministratrix in discharge of the debts of the intestate, and also for the value of the dwelling-house, which she had erected on the land; Held :</p> <p>I. The widow was chargeable with the value of the timber cut, sold and removed by her,</p> <p>II. The value of this timber was properly applied to extinguish pro tanto, the amount due to'her as such administratrix from the estate of her decedent.</p> <p>III. The dwelling-house having been erected on the land without the consent of the heirs of her husband, she is notentitled to charge the estate with the value thereof.</p> <p>IV. The widow is entitled to be endowed of one full fair third of the land according to quantity and quality, as it was at the time of her husband’s death, and in addition thereto with the use of the dwelling-house which she erected thereon.</p> <p>V. The shares of two or more of the heirs, who or whose guardians may so elect, may be assigned and allotted to them in one parcel.</p> <p>VI. The heir is entitled to have his share of the land in kind allotted to him in severalty, and it is only, when circumstances exist, which render a fair, partition impracticable, that the court is justified in exercising its extraordinary power of directing the lands to be sold in lieu of making partition thereof in kind.</p>

<p>1. Coverture may be pleaded in abatement or in bar, according to circumstances. Where the action is by a wife against her husband upon a contract executed by him to her during coverture, the plea is in bar.</p> <p>2. A note given by a husband directly to his wife during the cover-ture is void, and no action at law can be maintained upon it against the husband.</p>

<p>1. In actions at law affecting lands or other immovable property the forum rei sitce has exclusive jurisdiction; and the judgment of such forum as to such property is conclusive, (p. 764-.)</p> <p>2. In an action of ejectment to recover land situate in this State, if the defendant be a non-resident, he may be proceeded against by order of publication, or the declaration and notice may be served upon him outside of the State in the manner prescribed by sec. 13, ch. 124 of the Code, and either mode of service will confer jurisdiction upon the forum rei sites to determine the ownership of the-land in controversy, (p. 764.)</p> <p>3. If in such action the plaintiff files witii his declaration a statement of the profits or damages whicii he means to demand, and thereafter the defendant appears and pleads not guilty to the action, the court will then have jurisdiction not only to determine the ownership of the land hut also to render a personal judgment against the defendant for the profits of, or damage done by him to, the land. (p. 767.)</p> <p>4. Such statement claiming profits or damages may. be filed after the declaration has been filed and before trial; but, if not filed at the commencement of the action, the trial-court ought not to permit the same to be thereafter filed when doing so might'operate as a surprise or fraud upon the defendant, (p. 767.)</p> <p>5. When the defendant has been proceeded against as a non-resident and has appeared and pleaded to the action before such statement has been filed with the declaration, the trial-court should not thereafter permit the plaintiff to file such statement without the consent of the defendant, (p. 767.)</p> <p>6. In an action of ejectment for land, in which neither the plaintiff nor the defendant claim under a good paper-title, and it is not shown that the title has ever been granted by the State or the Commonwealth of Virginia to any one, it is error to instruct the jury, that the plaintiff may recover without tracing his title to a grant from the State or Commonwealth. The instruction should require the jury to find, that the plaintiff had in such case been in the actual possession of the land for the time prescribed, and had paid all the State taxes required, by sec. 3 of Art. XIII. of our Constitution, (p. 769.)</p> <p>7. The action of ejectment in this State is not simply a comparison of titles. The general rule is, that the right of the plaintiff to recover rests upon the sufficiency of his own title and not only upon the weakness of that of the defendant, (p. 770.)</p> <p>8. This general rule is subject to important qualifications: Thus, when a party in peaceable possession of land is entered upon and ousted by a mere intruder or trespasser, who has no title or color of title to or authority to enter upon the land, the party so ousted may recover the premises in ejectment upon his possession merely; and his right to do so can not be defeated by such intruder showing that there is or may be an outstanding title in a third person, (p. 771.)</p>

<p>1. Upon a bill filed to set aside a written contract for the purchase of land or to obtain an abatement of the purchase-money on account of deceit and false and fraudulent representations by the vendor, when the answer positively denies the allegations of fraud and deceit, and the testimony greatly preponderates in favor of the defendant, it is error to direct an issue out of chancery to a jury to determine whether or not there were such deceit and fraudulent repr< sentations.</p> <p>2. If, however, the circuit court does direct an issue in such cause to the jury to enquire: First. — Whether the plaintiff knew7, when he made the purchase, that certain specified improvements were not a part of the land purchased ? Second. — Whether or not at the time of the purchase the defendant made any representations or by any reasons induced the plaintiff to believe said improvements were a part of the land ? And third. — Whether the plaintiff purchased said land bona fide under a mistake that said improvements were included in the land purchased ? And the jury finds the first and third enquiries for the plaintiff and the second for the defendant, the court should upon such findings dismiss the plaintiff’s bill; but if instead of doing so it grants relief to the plaintiff, this Court will reverse the decree and- dismiss the bill.</p>

<p>1.Under our statute — ch. 157, Acts 1882 — this Court has no authority to award an appeal from any appealable decree, whether final or merely interlocutory, or to consider or review any errors in such decree or any decree or order preceding it in the cause, unless the appeal from such appealable decree is taken before the expiration of two years from its date. (p. 780.)</p> <p>2.If after the expiration of two years from the date of such appeala-ble decree an appeal is, as it may be, properly obtained from a subsequent decree for errors not arising out of such decree or any order or decree preceding it, this Court can only consider and review the errors complained of in such subsequent decree or the orders and decrees entered in the cause subsequent to said appeal-able decree, (p. 782.;</p> <p>3.A decree in a suit brought to set aside a conveyance as fraudulent and subject the land therein conveyed to the payment of the plaintiff’s debt, which decrees that said conveyance is fraudulent as to the plaintiff’s debt, ascertains the amount of said debt, and orders the payment of the costs of suit, is an appealable decree, although it does not decree the sale of the land, but refers the cause to a commissioner to report whether or not the rents and profits of the land will pay the said debt and costs within five years, (p. 783.)</p>

<p>1. No appeal lies from a judgment of a county court rendered under sec. 7 chap. 32, of the Acts of 1882, refusing to correct the assessed voluation on land. Such judgment can be reviewed if at all only by certiorari, (p. 786.)</p> <p>2. An appeal lies under sec. 94 of chap. 161 of the Acts of 1882, from a judgment of a county court refusing to correct an assessment, where it is claimed, that the party assessed with the taxes is not chargeable therewith, (p. 787.)</p> <p>3. One party may own the surfaceof the land, and another may own the minerals underlying the surface, (p. 789.)</p> <p>4. Where one party owns the surface of the land, and'another owns the minerals underlying the surface, the taxes may be assessed on the interests in said land to the owners thereof respectively. Sec. 4 of chap. 32 of the Acts of 1882, requiring such interests to be so taxed is constitutional, (p, 789.)</p>

<p>1. A refusal to set aside a verdict and grant a new trial can not be ground of error in the appellate court, when it appears, that the only ground, on which it was asked in the court below, was the refusal to grant an instruction, which had not been excepted to. (p. 794.)</p> <p>2. It is not in the power of a county to authorize individuals to make a county-road established by said court and then for a number of years to charge toll to reimburse them for making such road. (p. 795.)</p> <p>3. when a bill of particulars before a justice was for “toll on a county-road” and was not objected to there or in the circuit court,where the case was tried on appeal, and evidence was given to show that the plaintiffs were entitled to recover on agreement for building a road for the benefit of defendant in part, and the evidence tended to show, that defendant had agreed to pay a certain sum for building the road, and the verdict was for plaintiff, Held :</p> <p>There was a sufficient consideration for such promise, and the court did not err in refusing to set aside the verdict.</p>

<p>1. Equity has jurisdiction of an issue devisavit vel non to set aside a will, on the ground that it was executed by mistake and there-, fore is not the true will of the testator, (p. 799.)</p> <p>2. Upon the trial of an issue devisavit vel non to set aside a will for mistake in the testator in executing it, declarations of the testator made before and after the execution of the will are inadmissible to prove the mistake, (p. 804 )</p> <p>3. The mistake which will avail to set aside a will is the mistake as to what it contains, or in regard to the paper itself, not a mistake either of law or fact in the mind of the testator as to the effect of what he actually and intentionally did. (p. 805.)</p> <p>4. When a final decree is pronounced in favor of a will on the verdict of a jury rendered on an issue devisavit vel non, the functions of the suit are exhausted, and the bill should be dismissed. In such suit the construction of the will is not involved, (p. 8u6.)</p>

<p>1. A notice in a contested election case must set forth with reasonable certainty the facts on which the contest is founded ; and they must be such that, if sustained by proof, they will make it the duty of the court, either .to vacate the election or declare that another person than the contestee was duly elected, (p. 810 )</p> <p>2. A notice, which states, as the sole ground of complaint, that the county court commissioners failed and refused to count the votes at a specified precinct, which were duly and legally certified by the commissioners holding the election at said precinct, and that if said votes had been counted, the contestant would have been duly elected to the disputed office, is insufficient, and it should have been quashed by the county court, (p. 813.)</p> <p>3. Such a notice could not be amended after the expiration often days from the time the result of the election had been declared, if it could be amended at all. (p. 817.)</p>