Volume 28 — West Virginia Reports

<p>1. The question, whether a sale of personal property is complete or only executory, is to be determined from the intent of the parties as gathered from the contract, the situation of the thing sold and the circumstances surrounding the sale. (p. 14.)</p> <p>2. Where the goods sold are sufficiently designated, so that no question can arise as to the thing intended, it is not absolutely necessary, that there should be a delivery, or that the goods should be in a deliverable condition, or that the quantity or quality, where the price depends on either or both, should be determined; these are circumstances indicating intent but are not conclusive. (p. 14.)</p> <p>3. But where anything is to be done by the vendor or by the mutual concurrence of both parties for the purpose' of ascertaining the price of the goods, as by weighing, testing or measuring them, where the price is to depend on the quantity or quality of the goods, the performance of these things in the absence of anything indicating a contrary intent is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods may be ascertained and may be in such a state, that they may and ought to be accepted, (p-14.)</p> <p>4. Where the contract, the situation of the thing sold and the circumstances surrounding the case are such as to justify a jury in finding, that the sale was complete, and that title to the property passed to the buyer, the trial-court ought not and a fortiori the Appellate Court will not set aside such a verdict, (p. 15.)</p> <p>ñ. K. sold M. all the merchantable lumber-, which he had at certain designated places, at $10.00 per thousand. Nothing was said about examining and measuring the lumber; but a short time' thereafter M. spent one day with some hands hired by him in sticking apart of the lumber, when he went home and remained there sick, until a flood in the Ohio river swept away the lumber. M. had sold K. the land from which the timber, out of which the lumber was sawed, was cut, and K. owed M. $1,200.00 on said land, for which M. brought his action and sued out an attachment and levied on the lumber and then bought the lumber and agreed to take the $1,200.00 out and account to K. lor the balance. In his affidavit for the attachment M. stated that K, had no property except the lumber. The jury found a verdict for the defendant and assessed his damages at $831.09 ; and the trial-court entered judgment thereon. Held :</p> <p>Under these circumstances this Court will not reverse the judgment and set aside the verdict on the ground that it was not justified by the evidence, (p. 15.)</p> <p>6. In such an action the attachment-papers are admissible in evidence. (p. 15.)</p> <p>7. Where it appears, that the jury assessed more than.$100.00 in excess of what the evidence, which is all certified, warrants, the judgment will be reversed with costs, and the verdict set aside, and a new trial granted, (p. 16.)</p>

<p>1.A party, who has contracted with a corporation as such, can not afterwards raise the objection that, at the time he entered into such contract, the corporation was not legally incorporated, if such corporation could constitutionally exist, (p. 22.)</p> <p>2.‘ ‘Whenever it becomes material to ascertain wh at the law statutory or otherwise of another State or country or of the United States is or was at any time, the court, judge or magistrate shall take judicial notice thereof and may consult any printed books purporting to contain, state or explain the same and consider any testimony, information or argument that is offered on the subject.” (Code ch. 15 l 4). (p. 22).</p> <p>3."Wiiere a creditor brings suit to set aside a fraudulent conveyance of land and to sell the same to pay the debt of such grantor, who claims that he is entitled to credits upon or to sets-off against ' such debt and wholly fails to prove, that he is entitled to any such credit or set-off, it is unnecessary to refer such cause to a commissioner, (p. 33.)</p> <p>4. A corporation created under the laws of the State of New York is sufficiently proved in this State, by the production of a copy of the certificate of its incorporation, attested by the Secretary of State of the State of New York under the seal of his office authenticated by the Governor of New York under the great seal thereof, or by a copy of such certificate of incorporation made by the clerk of the county, in which the business of the corporation shall be carried on, under the seal of his office, and certified by the presiding justice of the supreme court of said county, and further authenticated by the clerk of such court under the seal of said court in the manner prescribed by sec. 20, of chap. 130 of the Code. (p. 24.)</p> <p>4. A. and 11. are appointed by a corporation its agents for the sale of sewing machines in certain counties, and they with H. B. as their surety and with J. M. B., who is surety for A. B. and H. B,, executed to it a bond in a certain penalty conditioned, that A. &. B. “shall well and faithfully perform their duties as such agents and account for, pay over and deliver to it all moneys, property and effects, &c. belonging to it, that may be entrusted to them or come-into their possession.” A. &. B. made default in the faithful performance of their duties as such agents in selling machines outside of the specified counties and in failing to pay to the corporation §1,200.00 received by them as such agents, whereupon H, B. executed for the benefit of such corporation his notes for that amount payable at a future day without the consent of J. M. B., which were given and accepted in discharge of the indebtedness of A. &. B. Held :</p> <p>T. When the corporation accepted the notes of H. B. in discharge of the indebtedness of A. & B., said J. M. B. was in equity discharged from all liability on said bond.</p> <p>II. The discharge of J. M. B. did not inure to the benefit of H. B. who stood in the relation of a principal debtor to the corporation and to J. M. B., and not as a co-surety with him.</p> <p>ITI. The moneys due from A. & B. to such corporation, whether derived from the proceeds of the sales of its machines, made within or without the counties specified in the bond, were chargeable upon their sureties therein.</p> <p>TV. H. B, has no right to contribution from J. M. B. for any money he may be compelled to pay as the surety of A. & B.</p> <p>In a suit brought by such corporation to set aside as fraudulent a conveyance of his lands, made by H. B., and to charge the same witli the payment of the moneys specified on said notes, J. M. B. is neither a necessary nor a proper party. (p. 26.)</p>

Statement of the case by Q-keen, Judge : This was an action of ejectment brought in May, 1884, by Edward M. Oney against Loraine Stinson and E. Gf. Clen-denin in the circuit court of Mercer county.

Statement of the case by Geeen, Judge : On November 10, 1884, Jebu Johnson brought an action of debt against Horatio N. Johnson and Albert Calvert and John C. McEldowney in the circuit court of Wetzel county on an injunction-bond in the penalty of $1,400.00 executed by the defendants.

<p>1.When, in any judicial proceeding in this State it becomes material to inquire, whether a certain city, town or viilagé has been incorporated, or within what county the same is situated, the court, judge or justice, before whom the same is pending, will take judicial notice of the Acts of the Legislature incorporating the same and of the county within which the same is situated.</p> <p>(p. 86.)</p> <p>2. In a proceeding before the mayor of a city, town or village to recover the fine or penalty imposed for the violation of any of its ordinances it is not necessary, that the warrant should allege, that the offence was committed in the county, within which such city, town or village is situated ; it will be sufficient, if it appears, that the offence was committed in such city, town or village, (p. 86.)</p> <p>3. In a proceeding before the mayor of a city, town or village subject to the provisions of ch. 47 of the Code for the recovery of a fine or penalty imposed for the violation of any of its ordinances, where the offender has been sentenced to imprisonment or to the payment of a fine of 510.00 or more, he is entitled as a matter of right to an appeal to the circuit court upon entering into a recognizance with sufficient surety before the justice to appear before the said court on the first day of the next term thereof to answer for the offence, with which he stands charged, and not to depart thence without leave of the court, (p. 88.)</p> <p>4. An ordinance of .the town of Beckley, which provides, “that no person shall sell, offer or expose for sale any spirituous liquors, wine, porter, ale, beer or drinks of like nature within the town of Beckley without first obtaining authority therefor from the council of the town of Beckley, as prescribed in sec. 23, ch. 47 of the Code of W. Va. and subsequent acts pertaining thereto,” and providing further, “that any person violating said ordinance shall for every offence forfeit not less than $10.00 nor more than §50.00 — and be imprisoned not exceeding thirty days,” is constitutional, (p. 88.)</p> <p>5. Where a party aggrieved can obtain redress by appeal or writ of error, he will not be allowed the extraordinary writ of certiorari. And in cases where he has permitted the time for appeal to expire, certiorari will not issue for relief, unless upon special showing, unmixed with any blame or negligence on his part. Poe v. Machine Works, 24 W. Ya. 517.</p>

' Statement of the case by Woods, Judge: Some time in the year 1867, Asa Musgrave, then quite an old man having only two children, a sou B. Gt, Musgrave and a daughter Mary E. who had inter-married with E. E. Boseberry, divided his farm, which was all the land he owned, into two parcels nearly equal in value and conveyed one parcel thereof containing 147 acres to his son, retaining the other as long as he lived, upon which he supported himself from its proceeds.

Statement of the case by Gk.eeN, Judge : John J. Weaver was married Dec. 29, 1829, and lived with his wife till his death, July 15, 1876. He never had any children by her, but after he had been married some twenty years, he had habitual intercourse with one Anna Maria Weaver. In 1850, while such illicit intercourse existed, she had a daughter, Anna Eliza, who afterwards marriad George Church.

Statement of the case by G-ReeN, Judge : On June 2, 1886, E. S. Doolittle and 806 others, citizens and voters of the cbuuty of Cabell iu the State of West Virginia, presented to this Court their petition setting forth that the county-seat of said county is now located at Barbours-ville, and that the petitioners, legal voters of said county, signed a petition to the county court of said county praying that said county court would make an order, that.a vote on the re-location…

<p>1. An appeal from the judgment of a justice or other inferior tribunal, which has the effect in law of transferring the controversy to the Appellate Court for trial de novo, operates in legal construction to vacate such judgment and renders it ineffectual as the foundation of an action, (p. 188.)</p> <p>2. A. sues B. before a justice in thisState, and a final judgment is rendered by such justice for the defendant; while said judgment remains in full force, A. assigns the claim, on which said action was brought, to C., who sues B. on it before a justice in the State of Ohio and obtains a judgment thereon; C. then assigns said Ohio judgment to E., who institutes an acción on the same in this State before the justice who rendered the said first mentioned judgment for the defendant. Held :</p> <p>A. court of equity has no jurisdiction to enjoin the prosecution of said last mentioned action, because by the statutes of the State of Ohio the' defendant in said Ohio judgment had a plain and adequate legal defence both before the justice, who tried the action, and by appeal as of right to the court of common pleas, where the case would be tried de novo. (p. 188.)</p> <p>3. The siniple fact that a party or his assignee sues on a false claim or one, which lie knows had been previously adjudged invalid by a competent court, is not such a fraud upon the rights of the party thus sued, as entitles him to enjoin the prosecution of an action on such claim in a court of equity, (p. 187.)</p>

<p>1. Where land is granted with a right of way, the right is appurtenant to every part of the land, and the gran tee of any part, no matter how small, is entitled to it; but no additional burden can thereby be imposed upon the servient estate, (p. 192.)</p> <p>2. In a suit for the partition of an estate having a right of way appurtenant thereto the court may allow such right to all the co-tenants, or it may confine the right to one or more of the allotments to the exclusion of the others, (p. 193.)</p> <p>3. In such suit the court may create rights of way for one allotment over another, if that appears necessary to the enjoyment of the separate allotments, but no co-tenant is entitled to such right of way over the lot of his co-tenant as a matter of absolute right, ip. 193.)</p> <p>4.The report of commissioners in such suit is not final and may be set aside by the court. But when the court is asked to quash or set aside the report, on the ground that, the commissioners erred in making their allotments, whereby an unequal partition has been made, it will not do so except in extreme cases — cases in which the partition is based on wrong principles, or it is shown by a very clear and decided preponderance of evidence, that the commissioners have made a grossly unequal allotment, (p- 195.)</p>

<p>1. When a court of equity has properly taken jurisdiction of a cause against an absent defendant, it must proceed to give relief according to the principles of equity, (p. 192.]</p> <p>2. If in sucli cause the absent defendant does not appear, the decree can be against the attached estate only ; but if he appears to the suit by demurring to the bill or otherwise makes a general appearance to the suit, then there may be a personal decree against him or both a personal decree and a decree subjecting the attached estate, (p. 198.]</p> <p>3. In a suit brought to recover a debt the bill avers that the defendant is justly indebted to the plaintiff in a specified sum'“upon contract for merchandise furnished by the plaintiff to the defendant,” while the evidence shows that the merchandise was furnished by the plaintiff and another as partners, and that before the suit was commenced the partner had retired from the Arm and assigned all the assets of the Arm, including the claim in suit, to the plaintiff. Heed :</p> <p>The variance between the averment and the proof is not material, (p. 199.)</p> <p>4. When a sole general partner is doing business under a Arm name in which another person is interested as a special partner, and such sole general partner brings suit, in the Arm-name, on a claim in which the special partner has no interest, it is unnecessary to make such special partner a party, (p. 200.)</p>

<p>1. A testator by one clause of his will devised certain mineral lands to his executors for the term of ten years from the date thereof, and at the expiration of that term to be conveyed in fee simple to his widow and children in such shares as they would be entitled to under the law of descents of this State, the heirs-at-law of any of the children, who may have died in the mean time, taking the share of their ancestor ; providing also, that the executors may work and develop said lands in such manner and to such extent.as may in their discretion seem best, and the net rents and profits during that period to be considered personal estate ; and by another clause of his will the testator provided that, notwithstanding anything contained in said former clause, his executors may, if in their discretion it seems best for the interests of his estate, at any time during said ten years convey, in fee or any less estate, said lands to a corporation formed for the purpose of developing them, taking in payment stock of said corporation or stock and money, the proceeds of such sale or the stock and money so taken to be distributed among those entitled to said lands, as if such proceeds, stock or money, were real estate. Within said ten years the executors sold and conveyed said lands to such a corporation and received in part payment therefor stock of the corporation, and one of the children sued l'or his portion of said stock before the expiration of the ten years mentioned in the said first named clause of the will. Held :</p> <p>T. Even though the widow and children took a contingent or conditional estate in the lands under the said first clause of the will, the other clause being an alternative and independent substantive provision, the widow and children took under the latter clause a vested estate in the stock resulting from the sale and were entitled to have the same transferred to them at once without waiting for the expiration of the ten years mentioned in the preceding clause, (p. 207.)</p> <p>II. By the sale to the corporation the lands became converted into personalty, but by the direction of the- will the same should be distributed as realty, thereby giving to the widow the one third of said stock for life only instead of giving it to her absolutely, (p. 208.)</p>

<p>1. Natural or hydro-carbon gas, which issues by its own force from the earth, is not absolute property but the subject of qualified property only.</p> <p>2. A landlord leased to his tenant certain premises for the purpose of mining and taking carbon-oil therefrom at a fixed royalty and for no other purpose ; the tenant opened a well which produced both oil and hydro-carbon gas, the former in small quantities pumped from the well for which the royalty is paid, and the latter in large quantities, issuing by its own force from the well, and which is separated from the oil by the tenant, and by means of pipes conducted beyond the leased premises where it is either sold or appropriated by the tenant for his own use without accounting to the landlord therefor. In a suit brought by the landlord for an account and the value of said gas, Held :</p> <p>The tenant is not accountable to the landlord for said gas or its value.</p>

<p>1. Where there is a lap or interlock of two deeds, whereby both embrace the land in controversy, and the person having the elder deed or the title to the land is in the actual possession of a part of his land outside of the interlock, and the person having the junior deed or color of title is in the actual adverse possession of a part of the interlock or land in controversy claiming under and to the limits of his deed, the latter -will in contemplation of law be regarded as being in the actual adverse possession of all the land in the interlock, not simply that actually occupied or enclosed by him. (p. 222.)</p> <p>2. If in such case the holder under the junior deed remains in such actual adverse possession of a part of the interlock for the period required by the statute of limitations to bar the .right of the owner or holder under the elder deed, the title to the whole of the interlock will be transferred to him, and the holder under the elder deed can not in ejectment recover the same or any part thereof from him. (p.223.)</p> <p>3. According to the rule announced by this Court in DánJcs v. Hode-heaver, 26 W. Va. 274, a party may have the rulings of the court below, made during the trial of the action, reviewed by this Court, when the record shows, in any proper manner, that such rulings were duly saved and a motion for a new trial was made and overruled, and the action of the court overruling such motion excepted to ; and it is not necessary that the record should also show, that other objection was made to the action of the caurt overruling such motion, (p.226.) 1</p>

<p>1. Under sec. 13 of ch. 45 of the Code as amended by ch. 15 of the Acts of 1881, the trustees of a sub-district are compelled to submit the appointment of all teachers to the board of education, if in session, and, if not in session, to the president of the board for approval; and the appointment is not complete without such approval. A discretion is given to the board or its president to either approve or disapprove such appointment; and the board of education or its president can not by mandamus be compelled to approve such appointment, (p. 232.)</p> <p>2. The school-trustees have no power, as individuals, to appoint a teacher for a public school. Such appointment can only be made by the trustees at a meeting, of which all the trustees had notice : and at least two .of the trustees must concur in such appointment. (p. 232.)</p>

<p>l. The power to organize and regulate water-works in a city being in its nature legislative or judicial, a failure of the corporate authorities to exercise the power does not render the. city liable for damages caused by such failure, (p. 246.)</p> <p>2. In the absence of a charter accepted by the city compelling it to ereetand regulate water-works it is discretionary with the municipal corporation, whether it will or will not erect them or cause them to be erected; or after such works have been erected, whether it will lay water-pipes in certain streets; or after having laid such pipes whether or not it will abandon or remove them, and leave ' such streets without pipes or suffer them to be filled with earth or other substances; and such power being governmental and discretionary, the city is not liable for loss by Are caused by the negligence of its servants and agents in suffering any of its water-pipes to become filled with earth or gravel, so that they will not convey any water, (p.246.)</p> <p>3. Where the city owns its water-works and charges those, who are supplied with water, a certain annual “water-rent” for such supply, there is still by this fact no duty imposed on the city, from which a liability can be raised against the city for damages for loss of property by fire caused by the negligence of the agents and servants of the city in suffering the water-pipes to become useless, so'that they will not supply water for the extinguishment of fire. From such facts no contract could be implied to keep up a supply of water, (p. 252.)</p> <p>4. The city, which owns its water-works and charges the consumers of the water an annual water-rent, is no more liable to damage for loss by fire than a city, which does not own its waterworks but keeps a paid fire-department supported by general taxation. The city, which owns its water-works and charges a water-rent, does not in any proper sense receive a “ profit ” from such work, but it is a species of taxation for the legitimate purposes of the city-government, (p. 258.)</p> <p>5. M, & Co. lost a factory by fire in the city of Wheeling ; the city owned and operated its water-works and received water-rents from those supplied with water; M. & Co. were supplied with water and paid the charge ; the property was lost, because the supply-pipe through the negligence of the agents of the city was sufiered to be filled with mud, so that it would not supply any water; Held :</p> <p>The city is not liable for damage for the loss.</p>

<p>I.The action of the circuit court in supervising the decision of the board of public works as to the assessment and valuation of railroad property for taxation under the provisions oí chap. 52, Acts 1883, is merely administrative and not judicial — thb court acting in such ease as an appellate assessment or tax tribunal and exercising powers distinct from those belonging to it as a court or judicial tribunal in the legal sense of that term. (p. 267.)</p> <p>2. Under our Constitution the Supreme Court of Appeals of the State has no power to review by writ of error or appeal the decisions or orders of inferior tribunals, officers or boards as to matters which are simply administrative, executive or legislative and not strictly j udieial in their nature, except where such power may be expressly conferred by the Constitution, (p. 270. j</p> <p>3. This Courthas no jurisdiction to review by writ of error a decision of the circuit court correcting an order of the board of public works assessing and fixing the value of railroad-property for taxation. (p. 271.)</p> <p>4.The second point of the syllabus in Low v. County Court, 27 W. Va., 785 is overruled, (p. 272.)</p>

<p>In 1854 the county court of Lewis county by an order entered of record having determined to build a new court-house and clerk’s office, the cost of which was to be paid in four equal annual in-stalments, contracted for the erection thereof on the terms aforesaid. In December, 1854, said court appointed J. B. its agent to borrow the money necessary to meet the engagements of the county with its contractors and pledged the county for the payment thereof. J. B. borrowed from the Exchange Bank of Virginia $4,075.04 for that purpose, for which he made to the bank four negotiable notes, whereby he promised to pay the same to the bank one hundred and twenty days after their respective dates, and signed the same, “J. B., Agent for Lewis county.” In an action brought by the bank against Lewis county to recover the amount- of tiiis loan, Held :</p> <p>L The said notes' were the notes of J . B. and not the notes of Lewis county, (p. 293.)</p> <p>II. The county court of Lewis county had no authority to execute negotiable notes for any debt due by the county, (p. 296.)</p> <p>III. The power conferred upon the county courts of the several counties of Virginia by the provisions of eh. 53 of the Code of 1849 to provide for the payment of all sums lawfully chargeable on the counties, which ought to be paid within the year, out of the county levies, which they were required to make annually, prohibited them from raising the money necessary for that purpose in any other way. (p. 292.)</p> <p>IV- The county courts of Virginia in 1855 and 1857 had no power or authority to borrow money for the erection of court-houses or other public buildings for the use of their several counties, (p. 291.)</p> <p>V.The action of Lewis county in borrowing money for the erection of its court-house in 1857 was not only unauthorized by law, but it was in effect prohibited by the laws then in force, (p. 296.)</p> <p>VI. The borrowing of said money and the making of said negotiable notes, so far as Lewis county was concerned, were acts ultra vires, and incapable of ratification, (p. 290.)</p> <p>VII. No action against Lewis county to'enforce the collection of the money so borrowed can be maintained, (p. 296.)</p>

<p>cited the following authorities •. 1 Hawkins -(6th Eng. Ed.) 118 ; Id. 124-126; 1 East Crown Law 214; Id. 219; Id. 282, 233; 4 Blacks. 195; Id. 199, 209 (s.p.); 3 Chit. Or. L. 727; Foster Cro. L. 256 ; 3 Graft. 604 et seq.-, Id. 431 ; 5 Bac. Abr. 763; Whar. Cr. L. 368 et seq.-, Whar. Am. Law of Horn. 371, 372, 385 et seq.-, 3 Graft. 504; 20 W. Va. 713; 9 Humph. 664; 33 Graft. 807; 11 Leigh 681.</p>

<p>1. Chap. 195 of the Acts of 1872 (which applies to this case) gave effect to the lieu of a judgment against a sheriff from, the time he was served with notice or summons, pursuant to which the ■ judgment was afterwards rendered, and declared void as to such judgment any transfer or assignment of his property made after the service of such notice or summons ; therefore a deed of trust executed by the defaulting sheriff after such service of summons or notice is under the operation of such statute void as to such judgment.</p> <p>Qucere — Does the act requiring judgment liens to be docketed in .order to preserve them as against purchases of the property, to which' they are attached, affect a judgment in favor of the State ?</p> <p>2. Sec.-39 of eh. IS of the Acts of 1882 operates prospectively and does not affect a case arising under ch. 195 of the Acts of 1872.</p>

<p>1.Where an appealable decree was entered in a cause in 1877, and subsequent thereto other decress were entered, to which an appeal is properly allowed by this Court, but not within five years from the date of said decree of 1877, Held :</p> <p>This Court on such appeal has no authority to consider or review said decree of 1877 or any of the proceedings had in the cause anterior to the entering of said decree, (p. 318.)</p> <p>2. A case in which it is held that the doctrine of laches and staleness, - relied on to exempt an administrator or his representatives from settling his administration accounts, has no application, (p. 322.)</p> <p>3. A decree is entered in a cause ascertaining and fixing the aggregate amount of the plaintiff’s debt and giving interest on such aggx-egatefrom the date of the decree, as|irescribed by our statute, Code, ch. 131, sec. 16, Held :</p> <p>It is error in a subsequent decree, entered in the same cause several years thereafter, to re-aggregate such debt by calculating interest on said first aggregate sum to the date of the latter decree, then adding thisinterest to thesumof the firstdecree and giving interest on the second aggregate from the date of the last decree, (p. 323.)</p>

<p>1. Prohibition does not lie to restrain an inferior tribunal after its judgment has been given and fully executed, (p. 326.)</p> <p>2. It can only operate to restrain a pending action or proceeding and can never be used to prevent the institution of an action, (p. 327.)</p> <p>3. It will not lie to restrain an inferior court from exercising jurisdiction in a particular case, if such court has jurisdiction of cases of that kind. (p. 327.)</p> <p>4. ifhe petition for a writ of prohibition must clearly show by its allegations, that the inferior court is about to proceed in a matter over which it has no jurisdiction. If the facts alleged leave the question of jurisdiction doubtful, the writ will be refused, (p. 327.)</p> <p>6. A case in which a writ of prohibition was properly refused by the circuit court.</p>

<p>Where a decree is made for the payment of several debts, aggregating over 5100.00 in amount, and for the sale of land worth more than that amount, but where the only controversy in this Court is, whether or not two of said debts, the aggregate of which is less than 5100.00, are valid liens on said land, this Court has no juris' diction to entertain an appeal from such decree.</p>

<p>Where a plaintiff seeks to avoid a fraudulent conveyance and subject the property conveyed to the satisfaction of his debt, he may sue in equity upon a legal demand, before he has obtained judgment thereon.</p>

<p>1. An agent, with authority to collect a note of his principal which is payable in money, lias no authority to receive in payment oí such note anything but money. If in such case the agent receives from the debtor notes or claims on a third party in payment of such note, that will not constitute a payment unless the claims so received are actually collected by the agent, (p. 336.)</p> <p>2. "Where the evidence offered by tlie defendant does not tend to prove any legal defence to the action, the court on the motion of the plaintiff, should exclude it from the.jury; and if it refuses to . do so, this Court will reverse the judgment on account of such refusal, (p. 336.)</p>

<p>1. A bill in chancery should by proper allegations show on its face, that the proper parties are made to the suit; and when the plaintiffs claim as heirs of others, who claimed to be devisees under a will, the bill should show what relation eaeh plaintiff bore to said ancestors respectively, (p. 339.)</p> <p>2. Where the court below sustains a demurrer to a defective bill and sufficient appears in the bill to show, that it can be amended so as to show a cause for relief in equity, and the court did not give leave to amend, for this reason the decree will be reversed with costs to the appellants, and the cause will be remanded with leave to amend the bill. (p. 340.)</p>

<p>1. To constitute a valid gift inter vivos, the donor must be divested of, and the donee invested with, the right of property in the subject of the gift; it must be absolute, irrevocable and without any reference to its taking effect at some future period. The donor must deliver the property and part with all present and future dominion over it. (p. 359.)</p> <p>2. To constitute a valid gift causa mortis, it is essential, that the donor should make it in contemplation of death, either in his last illness, or while he is in other imminent peril, and that his death should result from such illness or peril. The donor must part with all dominion over it, so that no further act of him or of his personal representative is necessary to vest the title perfectly in the donee, to belong to him presently as his own property, in case the donor should die of his present illness or from the impending peril, without malting any change in relation to the gift, leaving the donee surviving him. (p. 360.)</p> <p>3. Delivery at the time of making the gift is essential to a perfect gift causa mortis. It is not the possession of the donee, but the delivery to him by the donor, that is material. An after-acquired possession, or a previous and continuing possession of the donee, though by the authority of the donor, is insufficient, (p. 362.)</p> <p>4. Where a party claims title to personal property as a gift, either inter vivos or causa mortis, the burden of proof, in whatever J form the issue may be presented, rests upon him to establish the validity of the gift, of which the delivery of possession is the strongest and most material, (p. 360.)</p> <p>' 5. The mere possession of the subject of the alleged gift, unaccompanied by proof of its delivery by the donor to the donee, is insufficient to establish it as a gift either inter vivos or causa mortis, (p. 300.)</p> <p>6. Every person claiming property as a gift thereby admits, that up to tiie time when the gifc is alleged to have been made, it belonged to tiie donor ; and as the law does not presume that the owner parted with his property without any valuable consideration, the gift itself and the delivery thereof to the donee must be proved by the party claiming under it. (p. 361.)</p> <p>7. If the agent of the donee, residing with the donor, be authorized to accept and receive the gift, so that actual delivery thereof to him is a delivery to such donee, rand the gift is in fact so delivered to and accepted by him at the place of the donor’s residence, his possession thereof at such place of residence will be insufficient to make it a valid gift. vp. 370.)</p> <p>8. If the subject of a gift be delivered by the donor to a third person with authority to deliver it to the donee, such third person, until the authority is executed by an actual delivery to, and acceptance by the donee, is the agent of the donor, who, until such actual delivery is made, may revoke the authority and take back the gift. (p. 370.)</p> <p>9. If such actual delivery to the donee do not take place during the lifetime of the donor, the authority of such third person to deliver the gift is revoked by the donor's death ; the property does . not pass to the donee but remains in the donor, and goes to his \ executor or administrator, (p. 371.)</p> <p>10. The words “goods” and “chattels” as used in sec. 1. of cli. 71 of the Code of 1868 include money and every other kind of personal property which may be the subject of a gift inter vivos or causa mortis, (p. 308.)</p> <p>11. An instruction to the jury which tells them “If they believe all tiie evidence offered on behalf of the defendant and all the evidence offered for ihe plaintifi, so far as the same does not conflict with the evidence on behalf of the defendant, they should find for the plaintiff,” is erroneous, because it is ¡.in effect an in. struction as to the weight of the evidence, fp. 350.)</p> <p>12- “O. D.” deposited in bank fourteen bags of silver coin of the value of which was claimed “H. tor, (fee., as the property of his decedent. Upon the refusal of the bank to deliver the coin to “O. D.” she brought an action of detinue, to recover the same. The bank appeared to the action, filed the affidavit prescribed by see. 1 of ch. 107 of the Code of 1868, and on its motion said administrator was required to inter-plead with the plaintiff: Held,</p> <p>That under said sec. 1 of ch. 107, the inter-pleader was properly directed, (p. 349.)</p> <p>13. The form of the issue provided for by said section and the position of the parties in relation thereto must be determined by the court from the facts disclosed by their respective pleadings j therefore the judgment of the circuit court will not be reversed, the facts appearing on the trial, and not disclosed by the pleadings, show, that the form of the issue oughtto have been different, and the position of the parties in relation thereto ought to have been reversed, (p. 349.)</p>

<p>1. All judgments, where there has been no appearance by the defendant, are judgments by default within the meaning of sec. 5, of ch. 134 of the Code. (p. 375.)</p> <p>2. See. 5, of ch. 134 of the Code includes judgments for fines in misdemeanor cases, as well as judgments in civil cases, where such judgments are entered by default, (p. 375.)</p> <p>3. S. was indicted for selling spirituous liquors, and the summons was served on his wife. He did not appear, and judgment was rendered against him for a fine. He made no motion under ch. 134, to reverse the judgment but obtained a writ of error from the Appellate Court. His writ of error was dismissed as improvidently awarded (p. 375.)</p>

<p>1. In an action for malicious prosecution it appeared, that the plaintiff had been arrested and taken before a justice charged -with a misdemeanor, and without lawful authority a jury of six were sworn to try the question of his guilt and rendered a verdict of not guilty, upon which the justice discharged the prisoner. Upon the trial for malicious prosecution the transcript of the docket of the justice showing what took place at the trial and the verdict aud judgment was offered in evidence by the plaintiff, and the whole transcript was objected to by defendant, and the objection was overruled and the transcript admitted : Held.</p> <p>Ho error sufficient to reverse the judgment.</p>

<p>1. Where the personal representative of a decedent has failed to institute the suit prescribed by sec. 7 of ch. 87 of the Code of 1868, any creditor of such decedent after the expiration of six months from the qualification of such personal representative, whether he has obtained a judgment for his claim or not, may institute and prosecute such suit, although he may be the only creditor of such decedent, (p. 385.)</p> <p>2. A judgment recovered in an action at law against an administrator or executor for the debt of his intestate or testator is not even prima facie evidence of the existence of such debt as a charge upon the lands of such decedent in the hands of his heir or devi-see. (p. 384.J.</p> <p>3. In a case where a court of equity has jurisdiction of the subject-matter of the suit, whatever may be the nature or amount of the demand, the parties thereto are not entitled to a trial by a jury, except where the same is prescribed by law. (p. 384.)</p> <p>4. Where a cause has been referred to a commissioner to ascertain and report the debts due from a decedent, and he returns with his report as part thereof, all the evidence, which was before him, on which he acted, and the report is excepted to as unsupported by the evidence, and the circuit court has overruled said exceptions and confirmed the report, the Appellate .Court will review the evidence but, unless the same is clearly insufficient -in any reasonable view of it to support the findings of the commissioner, will affirm the decree of the circuit court confirming such report. (p. 387.)</p> <p>5. A case in which it was held in the absence of direct proof of an express contract, that the surrounding circumstances authorized a natural son-to recover from his father pecuniary compensation for work and labor done, for boarding and nursing furnished to, and moneys advanced, paid, laid out and expended for the father in his lifetime.</p>

<p>1. The statute of limitations to a suit to enforce a debt bars the remedy but does not extinguish the debt; and therefore, if the debt be secured by a deed of trust, though the action for its recovery be barred, the enforcement of the lien by deed of trust is not affected by any lapse of time short of a period sufficient to raise a presumption of payment, (p.396.).</p> <p>2.The presumption of payment arising from mere lapse of time is tl.e same, whether the debt is evidenced by a bond or by a note, and whether it be or be not secured by a deed of trust, (p. 397.)</p> <p>3,The presumption of payment of such a debt so evidenced in the absence of all proof arises after a lapse of twenty years and not before, though a period somewhat short of twenty years will raise such presumption, if it is aided by surrounding circumstances rendering it probable, that such debt has been paid, (p. 400.)</p> <p>4.The fact, that the time, in which a right of entry on land is barred, or the right to bring an action of ejectment, has been reduced to less than twenty years by statute, does not operate to reduce the time, in which a presumption of the payment of such a debt arises, and therefore does not affect the time, in which real estate may be sold to pay such debt, when it is secured by a deed of trust on such real estate, (p, 401.)</p> <p>5. In calculating whether the twenty years necessary to raise the presumption of the payment of such a debt has elapsed, such time must be excluded, if any, in which for any reason the creditor fías no legal right or power to bring a suit for the debt, (p. 403.)</p> <p>6. But though more than twenty years have elapsed, the presumption of payment may be rebutted by satisfactory proof, that the debt has not been paid. (p. 403.)</p>

Statement of the case by GReen, J-udge: This is a chancery suit instituted in 1876 in the circuit court of Ohio county by Louisa Seabright, the widow of Louis Seabright, against Charles W. Seabright, his executor, and his residuary legatees to surcharge and. falsify three ex parte settlements of his executorial accounts, because in those accounts the executor was not charged with certain bonds and notes given to Louis Seabright in his lifetime, which represented the…

<p>Upon an indictment for selling spirituous liquors, wine, &c., the jury found the defendant guilty, and the court entered judgment against him on proof that the defendant had sold a bottle of the “essence of cinnamon” to the State’s witness; that before the sale the defendant said to witnesss, if he wanted to drink it he could not get it, but if he wanted it for cooking purposes he could have it, and the witness having answered he did not want to drink it, the defendant sold it to him, and that witness drank part of it and it affected him so he could not see after night. On writ of error this Court affirmed said judgment by a divided Court.</p>

<p>1. Neither verbal or grammatical inaccuracies nor the misspelling of words in an indictment are fatal to it, where they do not affect the sense, and where from the whole context the words as well as the meaning can be determined with certainty by a person of ordinary intelligence.- (p. 501.)</p> <p>2. Upon an indictment for simple larceny the State may convict by proving, either that the subject of the larceny was received with a knowledge that it was stolen, or that it was obtained by a false token or false pretence, (p. 503.)</p> <p>3. Where an indictment consistsof twocounts, each of which is sufficient as an indictment for simple larceny, the defendant can not require the State to elect and try him on one count only, unless it appears, that the counts charge separate and distinct offences, (p. 502.)</p> <p>4.In a case tried on such an indictment, after the jury had returned a general verdict of guilty, the court upon being asked by the defendant to have the jury polled as to whether the verdict applied to both counts, stated to the jury: “I suppose you meant to find the prisoner guilty on both counts,” and then directed the poll to be taken, Held:</p> <p>. This was not error, which could have prejudiced the defendant in this particular case, and is no grouud for reversing the judgment, (p. 504. j</p>

<p>1. A testator bequeaths the. one third of- bis personal estate to his widow and the residue to three of his children, and what is claimed by the legatees to be a portion of the general estate con- ; sists of a specified sum of money and certain bonds, which the executor claims were transferred to him by the testator in his life-' time and are therefore no part of the estate. After the death of the widow a suit is brought by her administrator against the executor and legatees of said testator to compel the executor to • settle his accounts, to charge him with said money and the pro- ’ ceeds of said bonds and for distribution of said estate. In 'this suit the deposition of the widow, taken de bene esse, is read and portions of it relate to personal transactions and communications had in respect to said money and bonds between the executor and the testator. The deposition of the executor is also taken on his own behaif: Held :</p> <p>I. The deposition of the widow was Itself incompetent evidence, and could not therefore lay the foundation for making the. executor a competent witness to testify in his own behalf as to personal transactions or communications had with the deceased, nor could it make his wife a competent witness as to such transactions and communications. The testimony of both the executor and his wife as to such matters wbs therefore incompetent.</p> <p>II. Objections to the competency of the testimony in such case may be made at the hearing of the cause or in the appellate court, although no exception was made to the deposition.</p> <p>2. The appellate court will not in a chancery cause reverse a decree, for the reason that the circuit court erroneously overruled the appellant’s exceptions to depositions and permitted the reading' of incompetent testimony, where the competent evidence clearly sustains the decree; but if the evidence other than that, which is incompetent, is not plainly sufficient to justify the decree, the same will be reversed by the appellate court, (p. 513.)</p>

<p>1. A bill in chancery by proper allegations should show on its face, that proper parties are made to the suit; and if it claims to have set aside a sale made under a decree in another chancery cause, which is ended, for fraud or for other reasons, and that a resale should be made of the land, and the proceeds should be distributed among the parties entitled to such proceeds, so much of the substance of such chancery cause and the decrees in it, as will fully show the character of such suit and its objects, and especially as will show the parties interested in such suit and sale and the disposition of the proceeds, if made by the court, should be set out, so as to give the court definite information as to these matters.- (p. 517.)</p> <p>2. If this be not done, where there is a demurrer to such bill setting out. as grounds of demurrer only such grounds, as affect the merits of the cause, and not that the proper parties do not appear to be before the court, and tire bill shows on its face a cause, which should be considered on its merits, if the proper parties appeared to be before the court, and these necessary allegations were made, the court should give leave to the plaintiff to amend the bill, and not decide the cause, while in this condition, by sustaining the demurrer and dismissing the bill; and if it does, and the plaintiff appeals, the decree will be reversed, and costs will be given to the appellants ; but if the court does give the plaintiff leave tr amend his bill and he declines to do so and appeals to this Court, such decree of the circuit court will be affirmed. Cp. 523.1</p>

<p>1. The principles laid down in the 1st point of the syllabus in Danks v. Bodeheaver, 26 W. Va. 271, approved and applied, (p. 532.)</p> <p>2. A declaration in ejectment, the caption of which is: ‘West Virginia, Preston county, ss.,” and which describes the land as situate in Preston county in Kingwood district and gives a description of it, which is minute and accurate, is not fatally defective, so that a demurrer'to it should be sustained, because it was not stated in the body of the declaration, that Preston county was in the State •of West Virginia, (p. 530.)</p> <p>3. A declaration in ejectment in all other respects good should not be held insufficient on a demurrer, only because in the beginning it uses the language, that the plaintiff complains of the defendant “of a plea of trespass and ejectment for this, to-wit:” (p. 531.)</p> <p>4. On a demurrer to a declaration in considering whether the declaration is sufficient in law the court can not look at the notice served on the defendant to see whether it is such as the statute-law required, (p, 531.)</p> <p>5. This Court will not reverse a ease, because at some term of the Court during the pending of the case in the circuit court it required improperly the plaintiff in error to pay the costs of a eon-tinuancu. (p. 531.)</p>

<p>1. The following' are the rules for construing sections 5 and 6 of ch. 134 of the Code of W. Va., so far as they prohibit this Court from entertaining an appeal because of an error in a decree in an inferior court upon a bill taken for confessed, till after a motion to review or amend such decree has been made in the court below or to the judge thereof in vacation and overruled in whole or in ■ part: First — If a party defendant to a bill has failed to appear in the court below in any manner by filing plea, answer or demurrer or by filing exceptions to a report of a commissioner in chancery or commissioner of sale, which reports are the basis of the decree complained of, or if he has failed to appear in any other manner, such a defendant can not have his appeal entertained in this Court, till he has made such a motion in the court below, and it has been overruled ; but in such case, if any of the defendants having a joint interest with him in, the matter complained of unite with him in the appeal, this Court will entertain such appeal, if any of these appellants answered the bill, though no such motion was made in the court below. Second— If a defendant files no plea or answer but appears and demurs to a bill, on the ground only that the facts stated in the bill entitle the plaintiff to no relief against the defendant, and the court below overrules such demurrer and awards, a rule against him to answer the bill at a specified time, and he fails to do so, and the court renders a decree against him, and he makes no such motion in the court below, if he then appeals from such decree, solely on the ground that the court could properly render no decree against him on the plaintiff’s bill, this Court will entertain such appeal, it being regarded as substantially an appeal from the previous decree overruling the demurrer, which after this decree against him was an appealable decree, if it settled the principles ot the cause; but if the appeal extends also to other errors, which are distinct from and independent of the errors committed in the decree overruling the demurrer or errors in carrying out merely this decree, this Court will not entertain such appeal, no such motion having been made in the court below. Third — When the defendant, the appellant, has appeared in the court below otherwise than by filing a plea, answer or demurrer, and the decree, from which he appeals, was not based on any allegations of fact in the bill, which were treated by the court below as confessed or admitted, but was based on facts introduced into the case after the tiling of the bill by the report of a commissioner or in some other manner, and in addition thereto the record shows, that these facts so introduced into the cause, on which the decree appealed from was based, were not treated by the court as facts taken for confessed and admitted, and also that the defendant appeared in the court below and controverted these facts and opposed the entry of the decree complained of based on these facts, such a decree will not be regarded as a decree on a bill taken for confessed, though the defendant has not pleaded or answered ; and this Court will entertain an appeal from it, though no such motion has been made in the court below to reverse or correct it. (p. 543.)'</p> <p>2. A case, in which these rules were applied, and an appeal entertained by this Court, where the defendant, the appellant, had filed no plea or answer and made no motion in the court below to correct or reverse the decree appealed from, but where the record showed, that an issue was tried by the order of the court, in which he was the interested party on one side, and the jury found a verdict against him, and he asked the court for a new trial, which the court overruled and against his objections entered up the decree appealed from, which was based solely on this verdict, (p. 503.)</p> <p>3. A decree between co-defendants may bo rendered, when the equities between the defendants arise out of the pleadings and the proof between the plaintiff and the defendants, (p. 567.)</p> <p>4. There can he no decree between co-defendants, where no decree can be rendered for the plaintiff either because of his failure to prove the ease stated in his bill, or because the case stated in the bill entitled him to no relief, (p. 568.)</p> <p>5. If a bank has obtained a judgment on a negotiable note, which it had discounted, against both the maker and each of the two endorsers and has had such judgment properly docketed on the judgment-lien-doeket of the only county, where either the maker or the first or second endorser of such note has any real estate, and has issued afieri facias on such judgment and placed it in the bauds of the sheriff', the second and last endorser has not a right as a matter of course to file a bill quia timet asking a court of equity to compel the payment of this judgment out of the sale of the real estate of the maker and first indorser of such note, simply because he alleges, that he is afraid, that his own real estate may be subjected to the payment of this judgment, while the real estate of the maker and first indorser remains unsubjeeted. Before the court in the exercise of a sound discretion, which in such a case it must exercise, can entertain such a bill, it must be satisfied from facts stated in the bill, that tiie plaintiff has reasonable ground to apprehend injury from the fact, that he is the last indorser on such note, and if no facts are stated justifying the inference, that the plaintiff may be injured by the failure of the bank to make the judgment out of the maker and first in-dorser or their lands, such a bill should not be entertained but should be dismissed on a general demurrer, (p. 571.)</p>

<p>1.A declaration in assumpsit on a policy of insurance, not intended to be drawn after the form prescribed by eh. 66 of the Acts of 1877, is nevertheless sufficient, if it in substance and effect sets forth the cause of action by averments equivalent to those prescribed by that statute, although it may be insufficient as a common law declaration. (p. 593,)</p> <p>2.The plaintiff during the trial of the cause, and before verdict found, may at the discretion of the court be permitted to amend his declaration, in order that a material variance between its allegations and the proofs may he avoided, upon the terms, if the defendant so request., that the jury shall he discharged and the cause continued with leave to the defendant to amend his pleas, or plead anew to the declaration so amended, (p. 595.)</p> <p>3.The circuit courts of this State, in the exercise of their, general common law jurisdiction, in the absence of any statute prohibiting them from doing so, and independently of any statute authorizing them to do so, may in their discretion permit the pleadings to be amended at any time before verdict found .whenever justice will be promoted thereby, and the same can be done without injury to the opposite party, but in every such case, if the opposite party requests it, the jury should be discharged, and the cause continued with leave to the opposite party to amend his pleadings or to plead anew to the pleadings, so amended, (p. 595.)</p> <p>4.In an action upon a policy of insurance a plea, that such policy was made and issued to a different person than the person named therein although of the same name, is equivalent to the general issue, and if objected to, ought to be rejected, or if demurred to, the demurrer should be sustained, (p. 595.)</p> <p>5. Pleas, which in effect deny, that the plaintiff ever had any cause of action against the defendant, as in the declaration is alleged, are equivalent to the general issue and, if objected to, should be rejected, (p. 595.)</p> <p>6. In an action of assumpsit upon a policy of insurance of §1,500.00 against loss by Are of a certain stock of store goods the defendant filed a plea alleging in substance, that at and before the making of the policy the insured falsely represented to the defendant’s agent, who issued the policy, that the stock of store goods about to be insured was worth §2,000.00, which was false and then by the insured known to be false, and that the “goods” were not worth that sum ; and that the insured then and there agreed, that during the continuance of the policy, he would keep in said store a stock of goods of the average value of §2,000.00, and that he did not keep up his average stock to the value of §2,000.00, but permitted the same to be run down until at the time they were destroyed, they did not exceed in value 8300.00. Held :</p> <p>Such plea presents no good ground of defence, and having been objected to it ought to have been rejected, and having been demurred to the demurrer ought to have been sustained. (p. 597.)</p> <p>7. Where a defendant moves the court to set aside the verdict and grant him a new trial, on the ground that the same is contrary to the evidence, the bill of exceptions certifies the evidence introduced on the trial and not the facts proved, the motion will be overruled, unless after rejecting all the parol evidence on the part of the defendant, which is in conflict with that of the plaintiff, the verdict is clearly wrong, (p. 799.)</p> <p>8. On the trial of an action upon a policy of a fire-insurance-company' an instruction, which in effect tells the jury, that, if the company’s agent employed in issuing such policy, without any misrepresentation or suppression of the truth by word or act on the part of the person desiring to be insured or on the part of his agent employed in negotiating such insurance — -fails- or neglects to ascertain the identity of the person desiring such insurance, and believes that the name of the insured is in fact the name of his agent, and that the agent of the insured and the insured are one and the same person, such company is not bound to the insured by such policy — is erroneous, and was properly refused, (p. 598.)</p> <p>9. Where the declaration sufficiently sets forth a good cause of action, and there is no objection to the form or sufficiency of the verdict, a motion in arrest of judgment will be overruled, ip. 599.)</p>

<p>1. Where process has been regularly served on a defendant, and there is no appearance, and the defendant before judgment dies, and his death is not suggested on the record, and after his death judgment is rendered against him, such judgment is not void but voidable, and can not be collaterally attacked. (,p. 609.)</p> <p>2. In such a case the personal representative could in the action, in which the judgment is rendered, have the same reversed on writ of error coram nobis on motion under sec. 1 of ch. 134 of the Code. (p. 609.)</p> <p>3. When there is a joint action against two or more persons, all of ■whom are served with process, and one dies before judgment, and his death is not suggested on the record, and there is a judgment rendered against all the defendants, such judgment can not be collaterally attacked, (p. 609.)</p> <p>4. In'a suit in chancery to enforce the lien of sucha judgment it can not be impeached by showing, that it was rendered against one of the defendants after his death, fp. 609.)</p>

<p>1. In an action for damages on account of negligence resulting in death it is not necessary, that the plaintiff should, under sec. 6, ch. 103, Amended Code, aver in his declaration, that the decedent left a wife, children or othernext of kin. (p Oil.)</p> <p>2. When a plaintiff offers in evidence to the jury in an action against a railway company certain printed rules of the defendant, to the reading of which it objects, on the ground that said rules were not the rules in force at the time the cause of action arose ; and the plaintiff submits evidence which shows prima faoie, that said rules were then in force, it is not error for the court to permit said rules together with such evidence to go to the jury. (p. 612.}</p> <p>3. It is a well established general proposition, that under the common law in America a master is liable to his servant for any neglect of the master’s duty, whether committed by the master himself or by one to whom lie lias delegated liis authority, (p. 616.)</p> <p>4. Itis the duty of. arailroad company to establish proper rules and regulations for its service, and having adopted such rules to conform to them. (p. 617.;</p> <p>5. Where an engineer upon one train of a railroad company is injured by the negligence of the conductor of another train of the company running in an opposite direction, or by the fault of one of the company’s telegraphic operators in transmitting a tele- • graphic order to such conductor, such engineer being wholly without fault or the means of preventing such negligence or of avoiding its consequences ; such engineer is not the fellow-servant of said conductor, nor is he the fellow-servant of sgid operator in regard to acts and telegraphic orders between the operator and said conductor within the rule, which exempts the company from liability for the negligent acts of fellow-servants or persons engaged in the common service, and the company will be held responsible for an injury to such engineer, caused by the negligence of such conductor or operator in such manner, (p 619.)</p>

<p>1.According to the ancient and strict rules of pleading matters, which occurred after the filing of the original bill could not be introduced into the suit by an amended but only by a supplemental bill, but this rule is not now enforced, and such matters may be introduced by amended bill. (p. 630.)</p> <p>2. A bill is not multifarious, which is filed by a stockholder on behalf of himself and the other stockholders of a dissolved corporation for the purpose of compelling a defendant having in his possession property of said corporation or owing debts to it to account for and pay over the same, and which also asks, that the creditors of such corporation may be convened and its assets distributed among its creditors and stockholders, (p. 631.)</p> <p>3. It is ordinarily necessary, before a court of equity can interfere witli the management of a corporation at the suit of a stockholder, to show that- the directors or managing officers having control of it have refused to act in its behalf. But, if it be made to appear in any manner, that the corporation can not safely be left to obtain relief through the action of its officers, equity will interfere at the suit of a stockholder without proof of a demand upon the managing agents and their wrongful refusal or neglect to proceed on its behalf. vp. 632.)</p> <p>4. When it is shown that the corporation has ceased to exist either in law or in fact, or that it has abandoned its corporate business and neglected to maintain its corporate existence by the election of directors and the appointment of officers to manage its affairs, a stockholder may without showing more bring suit on behalf of himself and the other stockholders against the corporation or others having assets belonging to it for i.he protection of his rights, (p. 633.)</p> <p>6. After a corporation has been dissolved or its charter declared forfeited, the stockholders occupy towards it the position of deferred creditors, and they may in such ease sue as any other creditor to have its assets administered, (p. 634.)</p> <p>6. A suit is brought by a stockholder of a foreign corporation on behalf of himself and the other stockholders against a domestic corporation having property in this State belonging to said foreign corporation or owing debts to it; and the bill shows that the foreign corporation had ceased to use its franchises, and been dissolved by virtue of the laws of the State of its creation, and had no property or assets except those in the hands of the said domestic corporation and within the jurisdiction of the court, Held :</p> <p>I. The courts of this State have jurisdiction of such suit, notwithstanding the fact that said foreign corporation can not be brought within the jurisdiction of such courts :</p> <p>II. The said foreign corporation is not an indispensible party to such suit. (p. 035.)</p> <p>7. Where such suit is brought within less than four years from the time tiie cause of action arose, and it docs not appear that any of the parties have died, or that the rights of third persons have intervened, or that there has been any loss of evidence, the doctrine o.f laches has no application, (p. 637.)</p>

<p>1. A representation in order to make it operative as an'estoppel, must generally be the statement oí a fact. When the statement or conduct is not resolvable into a statement of fact, as distinguished from a statement of law, the party making it is not bound, (p. 649.)</p> <p>2. The representation, to work an estoppel, in all ordinary cases must have reference to a present or past state of things, not to a future matter or the expression of a mere intention or opinion, (p. 649.)</p> <p>¡1. An injunction is obtained by a ferry-owner to restrain a bridge company from completing and operating a toll-bridge near his ferry, until the damages are ascertained and paid for the injury done to the ferry by the operation of the bridge. While the injunction is in force the parties enter into an agreement, by which the ferry-owner binds himself to dismiss or abandon his injunction, and the company in consideration thereof binds itself to pay to him a certain per diem from the time the bridge is completed .and open for travel, until the said damages are ascertained, and until they are paid. Under this arrangement the bridge is completed and opened for travel, the suit is prosecuted and the damages are afterwards ascertained and fixed by a decree of the court, which directs that the company can either pay said damages and let the injunction be-dissolved, or refuse to pay them and not use the bridge. The damages are not paid, but under the aforesaid agreement the bridge is kept open and the per diem paid until afeer a written notice is given by the ferry-owner to the company, informing it of the said decree, and stating that it must elect either to pay said damages or close the bridge. Borne time thereafter the company closes the bridge and refuses longer to pay the per diem. The ferry-owner then brings an action of debt on sai'd agreement for the per diem, while the bridge was so closed. The defendant enters a jilea of set-off, averring that induced by said notice, it closed its bridge and thereby suffered damages to the full amount claimed by the plaintiff. Held :</p> <p>I. The said plea shows no ground to entitle the defendant to damages or set-off against the plaintiff’s claim ;</p> <p>IT. The plea sets up no facts which could operate as an estoppel upon a plaintiff;</p> <p>III. The plaintiff shows a good cause of action and is entitled to recover.</p> <p>á. In an action, where the only issue is upon a plea in confession and avoidance, upon which a verdict has been found for the defendant, and it is afterwards decided that such plea is bad in substance, judgment should be entered for the plaintiff non ob-stante veredicto. (p. 652.)</p>

<p>1.A plaintiff can not under the pretence of an amendment of his bill introduce an original and different cause of action or ground for relief. Rut if the cause of action and the relief sought are substantially the same, it is immaterial that the form, in which the claim is presented by the amendment, differs essentially from that in the original bill. (p. 656.)</p> <p>2. When an amended bill is rightly filed according to rule above stated, so far at least as the statute of limitations is concerned, it will have the same effect, as if it had been filed at the time the suit was commenced ; and a cause, which was not then barred, will not he treated as barred at the time of the amendment, (p. 658.)</p> <p>3. The power to sell and transfer the discounted bills and notes of ’the bank does not belong to the ordinary powers of the cashier, hut. inasmuch as lie may do so under some circumstances, a transfer made by him in the usual course of the business of the bank to a person, who has no cause to question the propriety or good faith of the transaction, will baprima fade valid, (p. 659.)</p> <p>4.When a director of a bank, who is also a depositor, has knowledge that the bank is probably insolvent and will likely be unable to continue its business or pay its depositors, in order to avoid the loss of his deposits obtains from the cashier, without authority from the hoard of directors, discounted bills and notes of the bank equal to the amount of his deposits, the transaction will be held invalid and the assignee of the bank may recover the amount of said bills and notes from him. (p. 661.)</p> <p>'5. When such depositor is entitled to dividends from the assignee of the bank, which have not been declared or paid by reason of the controversy in the suit, he will be entitled to be paid out of the fund recovered from him dividends on his deposit equal to those paid to the other depositors with interest on the same from the time the same would have been paid if there had been no controversy or suit. (p. 662.)</p>

<p>1. The points decided in the cause of Lamb, trustee v. Cecil, supra, approved and applied, (p. 665.)</p> <p>2. A director of an insolvent bank, who is also a depositor and the surety on notes held by the bank and not yet due, can not by an arrangement witli the cashier, at a time when both he and the cashier know the bank is about to fail, if he can do so at any time, obtain from the cashier such notes in payment of the deposits due him from the bank. (p. 667.)</p> <p>.‘i. In a suit by the assignee of the hank for the proceeds of such potes such director and surety will not be entitled to set off the debt of the bank due him for deposit's against the plaintiff’s demand, except to the extent be may be entitled to dividends from the assignee on account of his debt against the bank. (p. 669.)</p>

<p>1. If on the recórd-book a memorandum is made of exceptions taken by the plaintiff to the rulings and decisions of the court, one of which is an exception to an instruction given to the jury, and the other an exception to the refusal of the court to award a new trial, in which the evidence is all certified, upon a a writ of error this Court will review the rulings and decisions. ■ of the court, though the objection to the refusal of the court to award a new trial was not entered on the face of the record-book except by the noting of these exceptions and making them thus a part of the record, and these showing on their face, that these rulings and decisions of the court including the refusal to grant a new trial were objected to by the plaintiff, (p. 079.)</p> <p>2. A plea in abatement of an action of assumpsit brought by a creditor against a personal representative, that a legatee of the decedent had under the statute ($ 8 ch. S7 of Warth’s Code) required the defendant, a personal representative, to make an ex parte settlement of his account, and that the proceedings to compel such ex parte settlement were still pending, when this suit was brought, is bad on demurrer, (p. 680.)</p> <p>3. A court ought not to allow a defendant in an action of assumpsit to file a special plea, when itis objected to and is simply a denial, that the plaintiff ever had any cause of action ; such defence should be made under the general issue of non assumpsit. (p. 681.)</p> <p>4. This Court will presume, that the plaintiff is injured by the refusal of the court to permita proper replication to be filed, unless it affirmatively appears by the record, that no injury could have been sustained by the plaintiff, as on the trial he had been permitted to intr jduce all his evidence to prove all the facts stated in this rejected replication, all of winch evidence was properly admissible under the pleadings in the case exclusive of this special replication rejected, (p. 684.)</p> <p>5. The city of Parkersburg by statute was authorized to borrow §50,000.00 to pay its subscription to the North Western Virginia Railroad Company ; and to effect this it passed an ordinance on October 29, 1855, whereby bonds were to be issued and negotiated by the trustees of the sinking fund of said city consisting of two persons, appointed by and removable for cause by the council of said city, and the mayor of said city for the time being. One of these trustees was to be appointed the treasurer, and as such give to a bond and security. It was made the duty of these trustees to negotiate these bonds and see to the punctual payment of the interest on them as well as the principal, as they might fall due ; and to this end certain of the taxes and resources of the said city were to go into the hands of the said trustees, who were authorized among other things to loan temporarily on good personal security any sum less than §500.00 remaining in their hands, sums exceeding that amount being required by the ordinance to be spent in the purchase of these bonds of the city of Parkersburg or bonds or stock of the State of Virginia. On November 2, 1870, the trustees of this sinking fund were P. G. VauWinkle, W. N. Chancellor and O. H. Smith, the mayor, and P. G. Van Winkle was their treasurer. These trustees loaned to P, G. Van Winkle with W. W. Van Winkle as his surety §734.57 ; and they signed and sealed a bond, whereby they and each of them bound themselves to pay the trustees of the sinking fund (of Parkersburg, W. Va.) §734.57 with interest from date on or before May 1, 1871. This bond is in its legal effect a bond to the three individuals, P. G. Van Winkle, W. N. Chancellor and C. H. Smith, though they were not named as obligees on the face of this bond, the description on the bond ‘‘trustees of the sinking fund (of Parkersburg, W. Va.)” being regarded as a desoriptiopersonis and as meaning thoseindividuals, who, when this bond was executed, were the trustees of the sinking fund of Parkersburg, (p. 686.)</p> <p>6. The principal obligor in this bond being P. G. VauWinkle, and he being also at the time not only one of the obligees as one of the trustees, butalso treasurer of these trustees, this bond in point of fact when signed and sealed by the obligors remained in the possession and control of the principal obligor undelivered to any one till his death some eighteen months afterwards, and it then passed into the hands of his personal representative, who was W. W. VauWinkle, the other obligor in this bond, and he handed this bond with the other assets of said trustees to one of them. Held :</p> <p>This bond never having been delivered by the obligors to the obligees was inoperative and void as a bond and imposed no obligation either legal or equitable on either of the obligors in the bond; and the security in the bond, W. W. Van Winkle having after the death of the principal paid the bond to the person, who had been appointed such treasurer of these trustees, after he had ceased to be the administrator of the principal, P, W. Van Winkle, is not entitled in an action of a,ssumpsit to recover the amount so paid from the administrator de bonis non of P. G. VauWinkle. (p. 6S7.)</p>

<p>By an act uf the legislature passed on the 5th of November, 1863, the corporate limits of Parkersburg, a city containing less than ten thousand inhabitants, were extended so as to include a portion of territory, not theretofore within its limits, and its charter was thereby so amended, that no part of the land so annexed used exclusively for grazing, gardening, farming or other agricultural purposes, should be assessed with or liable for any city taxes, unless and until some part or parcel of said land had been, or should be laid ofí into streets and lots, and such lots sold, or offered for sale ; and that no building erected on any part of the land so annexed, should be taxed by the city, unless the same fronts on some street or alley by which the same is accessible from the bounds of the city as it existed on the 5th of November 1863 : and that when a building should be erected thereon, so as to become liable to be assessed with city-taxes, the same and not exceeding one acre of land, used in connection therewith, might be taxed at a rate not exceeding one half the rate, at the same time charged against similar property within the then existing limits of the city. The city disregarded the limitations imposed by the act of November 5, 1863, on its power to tax the lands so annexed, and during the years from 1879 to 1882, both inclusive, assessed and charged the plaintiff's land, being part of the land so assessed, with city-taxes at said half rate, and for the years 1883 and 1884, at the full rate imposed by the city on similar property within its former limits, notwithstanding the fact that his land then was, ■ and always had been used exclusively for grazing and farming purposes, and had never been laid off into streets and lots, and sold, or offered for sale, and that there was no building erected thereon. Upon a bill filed by such land-owner, to enjoin the collection of the taxes assessed against his land for the years 1883 and 1884, on the ground that it was exempt from such taxation, under the charter of the city as amended by the act of November 5, 1863 : Held :</p> <p>I. That as taxes assessed on real estate without any lawful authority create a cloud upon the title thereof, a court of equity will for that cause alone, entertain a bill to remove the cloud by perpetually enjoining the collection of such illegal taxes, (p. 704.)</p> <p>II. That no part of the act of November 5, 1863, was repealed by the adoption of the Constitution of 1872, nor was the same in violation thereof, nor of the Constitution of 1863, nor was the said act or any part thereof, repealed by chapter 141 oi the Acts of 1872-3. (p. 706.)</p> <p>IT1. That a statute general in its terms, and without negative words, will not be construed to repeal by implication, the particular provisions of a former statute, which are special in their application to a particular case or class of cases unless the repugnancy be so glaring and irreconcilable as to clearly indicate the legislative intent to repeal, (p. 708.)</p> <p>IV. That the first section of chapter 47 of the Code of 1868, so far as it conferred powers on a city, town or village not conferred upon it by its charter, is to that extent an amendment of its charter, (p 711.)</p> <p>V. That the exemption from city-taxes specified in the act of November 5, 1863, was such as might at any tiine be repealed by the legislature. (p. 713.)</p> <p>VI. That sections 30, 31 and 41, of chapter 47 of the Code and sections 101 and 103 of chapter 54 of the Acts of 1875, conferred additional powers on the city of Parkersburg, and in effect so amended its charter, as to remove the limitations and restrictions to impose city-taxes upon the lands so annexed thereto, and exempted from such taxes by the act of Novem- * ber 5th, 1863 : and, (p. 714.)</p> <p>VII. That the city of Parkersburg is authorized to levy taxes for city-purposes, upon all the real and personal property within its corporate limits, according to the value thereof, and by a uniform rate of taxation, (p. 714.)</p>

<p>1. Pacts in controversy on the trial of an issue not necessarily involved in the issue, though ever so important in its determination, are not settled by the judgment on the issue, but are open to controversy in any other suit between the same parties or their privies, (p.725.)</p> <p>2. 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 proven by them, the Appellate Court will decline to reverse the decree, though the testimony may be such, that it might have pronounced a different decree, if it had acted upon the case in the first instance, (p. 731.)</p>

<p>1. The general rule is, that in an action for negligence the plaintiff can not succeed, if it is found by the jury that he has himself been guilty of negligence or want of ordinary care, which contributed to cause the injury. But this rule is subject to this important qualification : Though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the injury, yet if the defendant could by the exercise of ordinary care and diligence have avoided the injury, the plaintiff's negligence will not excuse or relieve the defendant from liability, (p. 737.)</p> <p>2. In a ease involving the doctrine of contributory negligence the court should not instruct the jury, that the negligence of defendant’s servants in charge of its railway train is the negligence of the defendant, for which it is responsible, (p. 738.)</p> <p>3. In such case, if the fault or negligence of the plaintiff was the proximate cause of the injury, the defendant is not responsible, although it may have been negligent and the remote cause of the injury, (p. 738.)</p> <p>4. If the passenger would hold the railroad company to the full measure of its responsibility for safe carriage, he must conform to all the reasonable rules the company makes looking to the safety of its passengers, (p. 739.)</p> <p>5.If the passenger rides, where he has no right to ride by the rules of the company, or in a place of great danger — as on the top of the car or cow-catcher or pilot of ithe engine — where no man of ordinary prudence would attempt to ride, the mere knowledge or consent of the conductor or trainmen to his riding there will not entitle the plaintiff to any greater rights against the company on account of any injury received by him while so riding, than if the conductor and trainmen had been wholly ignorant that he was so riding, (p. 740.)</p> <p>6. Where a railroad company is in the habit of carrying its shopmen to and from their work as a matter of accommodation and without any agreement or compensation therefor, if its train is so crowded, that one of said shopmen can not get aseat in the cars, that fact will not justify him in sitting on the pilot of the engine ; and if he does improperly do so, it is his duty to leave the pilot and go into the cars at his first opportunity, (p. 742.)</p> <p>7. Where the evidence does not tend to prove, that the injury complained of was caused by the wilful, wanton or oppressive conduct of the agents of a railway company, and that such conduct was expressly or impleidly authorized or ratified by the company, it is error to refuse to instruct the jury, that in such case they can not give punitive or exemplary damages, (p. 743.)</p>

<p>1. Until the term ends, every judgment or decree entered may for good reason be modified or set aside in whole or in part. The court has a discretion to do this, in the exercise of which this Court will not interfere except for the most cogent reasons (p. 749.)</p> <p>2. The 1st, 2d, 3d and 4th points in Cox v. Wayt, 26 W. Va. 807, approved and re-affirmed, (p. 760.)</p> <p>3. A deed, executed before judgment had been obtained against the grantor, under which the purchaser had paid the purehase- . money -and had been put in possession, but which was not recorded, until after the judgment was obtained, is void as against such creditor, and the land thereby conveyed is subject to satisfy the judgment, (p. 750.)</p> <p>4.When the conveyance is by an unrecorded deed, and the vendee has held the property adversely for the period of ten years, before a judgmentis recovered against the grantor, theland can not thereafter be subjected to the lieu of such judgment. As soon as such deed is made and delivered, though unrecorded, the holding thereunder will be adverse to the world ; but no adverse possession proven as against the grantee or his creditors can be founded on an executory contract of purchase, (p. 751.)</p>

<p>1. Where a mutual benefit association, which is incorporated, is liable to one of two or more claimants for a death-benefit, the treasurer of such association can not file a bill of interpleader to have the defendants set up their respective claims, but such bill can be filed in such case only by the corporation itself, (p, 759.)</p> <p>2. The object of a bill of interpleader is to protect a complainant standing in the situation of an innocent stakeholder, and where a recovery against him by one claimant of the fund might not protect him against a recovery by another claimant, (p. 759.)</p> <p>3. Where a bill of interpleader was filed in the circuit court, and demurrer thereto overruled, and §600.00 paid into the hands of the “receiver” of the court, and on appeal the demurrer to the bill was sustained, the Appellate Court on reversing the decree remanded thfe cause with instructions to order the money to be returned whence it came, and then to dismiss the bill with costs, (p. 760.)</p> <p>Qucere. — Can a mutual benefit association, which has paid a portion of a death-benefit to two or more conflicting claimants, afterwards file a bill of interpleader to settle the question, to whom the residue should be paid.</p>

<p>1. If a suit be brought on the special bond of a sheriff as the collector of school taxes, and the only breach of the bond alleged by the plaintiff is the failure of the sheriff to pay over the amount, which he was indebted to the teachers’ fund, the defendants can not set off any balance, which they claim is due from the building-fund to the sheriff; nor can any evidence be introduced on the trial of such a suit by either plaintiff or defendants with reference to any receipts or payments made by the sheriff on account of the building-fund. The endeavor to introduce such matters into the suit should be rejected, (p 769,)</p> <p>2. An ex-sheriff as former collector of the school-fund has no authority without the direction of the board of education of a particular district to pay over any school-fund, which he may have collected, and which is in his hands, when his term expires, to his successor in office ; and such payment being alleged will not relieve his sureties or charge the sureties of liis successor, unless such board of education subsequently confirm and approve it by charging his successor in office with his consent with the amount he received from the ex-sheriff in the settlement made by the board of education of the accounts of such successor. If this be done, the sureties of the ex-sheriff will be discharged from all obligation therefor, if said funds so turned over are lost; and the sureties of such successor will be responsible, if such fund so turned over is not accounted for by such successor, (p.. 770.)</p> <p>3. If a sheriff resign his office, and the county court fills the vacancy by appointing the same person as sheriff till the next general election, and the sheriff, when he resigned his office, was in- 1 debted on account of the school-fund in his hands to the board of education of a particular district, and at his first settlement after such appointment the board of education with his assent charges him with the whole or a portion of the amount, he owed to such board of education because of the school-fund in his hands, when he resigned his office of sheriff, if he were solvent, when he made such settlement, his sureties as sheriff appointed to fill such vacancy in his special bond to account for the school-fund will be responsible for the due accounting for the whole or such portion of the amount he owed to such board of education because of the school-fund in his hands, when he resigned his office of sheriff, as was charged to him in this settlement, but for no more, though he was indebted in a greater amount than was so charged; and if, when he makes such settlement, such sheriff is insolvent, his sureties as sheriff appointed to fill such vacancy in his special bond to account for the school-fund will not be responsible for the due accounting for any portion of the school-fund received by him, before he resigned his office as sheriff, but his sureties in his official bond, when he received such school-funds not accounted for, will be responsible, though the balance in his hands had been transferred by the board of education with his assent to his account as sheriff appointed to fill such vacancy. In a suit brought to hold the sureties of such sheriff appointed to fill such vacancy responsible for such school-funds collected by the sheriff, before he resigned, but so transferred to his account as sheriff appointed to fill such vacancy with his assent and the assent of the board of education, as shown by its being charged in their settlement with him, after he had been appointed sheriff to fill such vacancy, the burden of proving the insolvency of such sheriff, when he made such settlement, and thereby relieving this set of sureties is upon the sureties, as the law will presume the sheriff was solvent, when he made such settlement, and hold them liable, unless his insolvency, when such settlement was made, is shown, (p. 771.)</p>

<p>1. When a court excludes as evidence portions of a deposition, which has been read to the jury, it should designate clearly the parts of the deposition excluded, and if it fails to do so, and it is a matter of conjecture as to what portions of such deposition, the court intended to exclude, the Appellate Court will decide the case, as though no part of such deposition had been excluded, (p. 786.)</p> <p>2. The vendor in an absolute sale of personal property continuing in possession thereof, such continued possession raises the legal presumption, that the sale was fraudulent as regards the creditors of the vendor, which presumption throws imperatively upon the vendor the whole'burden of proving the fairness and good faith of the transaction ; and that can not be done without sufficient evidence, that the pretended sale was for a fair and valuable consideration, and that after the sale the vendor did not continue to have an interest in the property by some secret understanding ; and in the absence of all evidence to show, that the pretended sale was for a fair consideration, or in the absence of all evidence, from which the inference could be fairly drawn, that the vendor did not continue to have an interest in the property after the sale, the legal presumption, that he did, and that the sale was not for a valuable and fair consideration becomes absolute and conclusive; and the same will be the legal conclusion, though some evidence was produced on these subjects, if it was insufficient to rebut this strong legal presumption, which arises from the vendors retaining possession of the property after the sale, (p. 792.)</p> <p>;i. If in such a casé the jury And the sale to be bona fide and valid, the court ought not to set aside such verdict and award a new trial, unless the evidence was plainly insufficient to warrant the jury in concluding, that despite the fact, that the vendor continued in possession of the property after the sale and the strong legal presumption thence arising, that the sale was not for a fair and valuable consideration, and that the vendor retained an interest in the property after the sale, and that such sale was fraudulent and void, the consideration was fair, and no interest in the property was retained by the vendor after the sale, and it was otherwise untainted with fraud, (p. 801.)</p> <p>4. The holding back of material evidence by any party to a suit raises a presumption of fact against him,"whenever it appears, that he could have produced such evidence, (p. 805.)</p>

<p>Under a decree of the court, a commissioner is directed to sell three tracts of land ; on the day of sale the land is hid off to A., the ; debtor, and he being unable to comply with the terms of'sale makes a parol agreement with D., by which it i.s agreed he shall be reported as the purchaser instead of A., and the-latter, as an inducement to D. to purchase, agrees to get his wife to release her contingent dower in the lands, which the wife afterward re^ fuses to do ; the commissioner reports D. as the purchaser, and the court confirms the sale without objection ;• on a subséquent day of the same term N., a creditor of A., offers for one of said tracts an upset bid of twenty per eent. advance on the price of said tract, and the court sets aside the confirmation as to said one tract; at a subsequent term D. moves the court to confirm the sale to him of said tract, and A. moves to have the same set aside and a re-sale ordered ; the court sets aside the sale and orders a re-sale on the basis of the upset bid, the re-sale is made and N. becoms the purchaser at his upset bid ; this sale is confirmed, and D. appeals to this Court. Held :</p> <p>I. The court properly set aside the order confirming said first sale. (p. 813.)</p> <p>IT. N. had the right to ask the court to set aside said order of confirmation and sale, although it was demonstrable that- A.</p> <p>■ had ample other real estate to pay his debt. (p. 814)</p> <p>III. The said parol agreement could not be specifically enforced-; nor could it operate as an estoppel or conclude the right of A. to resist the confirmation of the sale, (p, S15)</p> <p>IV. The court rightly set aside the first sale, of said tract and properly confirmed the re-sale to N. at his upset bid. (p. 815)</p>

<p>This Court has no jurisdiction to review an order of the circuit court refusing to award a writ of certiorari to the judgment of a justice rendered on a verdict of a jury, when the amount of such judgment is less than §100.00 and the matter in controversy is merely pecuniary.</p>

<p>1. Where a deed made under a decree by a commissioner or other authority is offered in evidence as a connecting link of the party’s chain of title to land, it is necessary to introduce with it so much of the record of the suit, in which such decree was made, as will satisfactorily show, that the persons having the legal title to the land conveyed were parties to the suit, and as will identify the land. (p. 826.)</p> <p>2. Where two suits are heard together, and it appears from the orders and decrees entered therein, that the proper parties were before the court either in one or both of. the suits, and it is proven, that the file of papers in one of the suits is lost, such orders and decrees may be read in evidence, although it does not appear from the bill in the other suit, that all such persons were parties to it. (p. 826.)</p> <p>3. The fourteenth section of ch. 95 Acts of 1882 authorizing the former owner of land, the title of which has been forfeited to and remains in the State, to redeem such land at anytime before sale by the commissioner of school-lands in the manner prescribed by said act, is valid and constitutional, (p 828.)</p> <p>4.-In an action of ejectment the plaintiff offered in evidence a deed made by a commissioner in pursuance of a decree entered in a suit brought for the specific execution of a written contract for the sale of theland so conveyed, and such portions of the record, as show the authority of the commissioner to make such deed, including the said written contract, Held :</p> <p>It is not necessary in such action of ejectment to prove the execution of such contract by the vendor of the land. (p. 830.)</p>