Volume 29 — West Virginia Reports

<p>1. Cebtificate of Acknowledgment, &c., of a Mabbied Woman.</p> <p>In the certificate of privy examination, acknowledgment and declaration of a married woman to a deed conveying her property a substantial compliance with the statute is sufficient; therefore, where a justice certified, that the married woman “being examined by me privily and apart from her husband and having the above deed of trust dated December the 15th, 1868, fully explained to her, she, the said Sarah Jane Knisely, acknowledged the said writingto be her act and declared, that she had willingly acknowledged the same and did not wish to retract it,” — this was a substantial compliance with the statute, (p. 4.)</p> <p>2. Cebtificate of Acknowledgment, &c., of a Mabbied Woman— Conclusive Evidence.</p> <p>The certificate of a justice or notary of the privy examination, acknowledgment and declaration as to the execution of a deed of a married woman is in its nature a judicial act, and in the absence of fraud or duress it is conclusive of the facts therein certified.. (p. 10.)</p> <p>3. Amendments.</p> <p>A party will not he permitted to amend his bill, so as to make an entirely new ease. (p. 22.)</p> <p>4. Prayer for Relief.</p> <p>Under the prayer far general relief a party cannot recover a claim distinct from that demanded by the hill. (p. 22.)</p>

<p>1. Equity — Joinder oe Parties.</p> <p>There is no inflexible rule as to the joinder of parties in a court, of chancery.</p> <p>2. Equity — Joinder oe Parties.</p> <p>The genera] ruléis, that several complainants having' distinct and independent claims to relief against a defendant can not join in a suit for the separate relief of each. Nor can a single complainant having distinct and independent claims for relief against two or more, defendants severally join them in the same bill.</p> <p>3. Equity — Joinder oe Parties — Judicial Discretion.</p> <p>The chancery court exercises a sound discretion in determining, whether there is a misjoinder of parties, under the iiartionlar circumstances of each case.</p> <p>4. Equity — Joinders oe Parties — Nuisance.</p> <p>Two or more persons owning separate and distinct tenements, whether they occupy the premises by themselves or by tenants, may together with the tenants, where the tenements are lessened in value or made materially uncomfortable as homes by a nuisance,, which is a common injury to all the tenements and their residents, may join in a suit to restrain such nuisance.</p> <p>5. Equity — Injunction—Nuisance—Noise.</p> <p>Where the prosecution of a business in itself lawful in the neighborhood of a dwelling-house renders the occupation of it materially uncomfortable by noises alone, the carrying on of such business, while it produces such results, will be restrained by a court of equity.</p> <p>6. Equity — Injunction—Skating Rink — Noise—Nuisance.</p> <p>A skating rink erected within a short distance of a dwelling, when the noise from the skating and attending it was of such a character as to materially interfere with the comfort and enjoyment of the inmates of such dwelling, was properly enjoined by a court of equity.</p> <p>7. Equity — Injunction—Skating Rink — Nuisance.</p> <p>A bill was filed to enjoin the erection and operation of a skating rink; the injunction was granted, and evidence was taken, which showed, that the use of said building as a skating rink would be a nuisance; but the court on motion dissolved the injunction, reserving to the petitioners the right to apply for a re-in-statement of the injunction, after the rink should be in operation; a supplemental bill was filed charging, that the rink in operation in consequence of the crowds and noise produced was a nuisance; answer was filed, and proof taken, which showed, that the rink was a nuisance; but on the final hearing the court refused to reinstate the injunction and dismissed the original and supplemental bills; this Court reverses both decrees and reinstates and makes perpetual the injunction.</p>

Statement of the case by Green, Judge: B. M. Weclh and fifty-four other citizens and tax-payers of Wetzel county in this State applied by petition to the Circuit Court of said county for a writ of certiorari against the County Court of said county to require said court to remove the record of its proceedings in relation to the re-location of the county-seat of said county into the Circuit Court of said county.

Statement of the case by-GREEN, Judge : This was an action on the case brought September 13,1882, in the Circuit Gourt of Ohip county by Catharine Gerity, acL-miuistratrix of Patrick Gerity, against James Haley to recover damages for the wrongful act, neglect and default of ■said Haley, whereby the plaintiff’s intestate, Patrick Gerity, lost his life.

<p>1. Feadd — Mistake—Bill in Chancery — Proof.</p> <p>Where parties have made a settlement in regard to a transaction and struck a balance, which has been adjusted by cash or note, it is incumbent on the party complaining of fraud or mistake by suit in equity to allege it specially in his bill and establish it by proof. (p. 115.)</p> <p>2. Jurisdiction — Deficiency in Quantity of Land.</p> <p>Where the plaintiff in a suit in equity seeks relief on account of deficiencies in two distinct tracts of land, and it is clearly shown by both the pleadings and proofs in the cause, that there is in fact no deficiency as to one of the tracts, and the value of the deficiency in the other is less than $100.00, and relief is denied in the Circuit Court, this Court has no jurisdiction to review the decree of the Circuit Court, (p. 115.)</p> <p>3. Deficiency in Quantity of Land.</p> <p>A. and B. make an exchange of lands, whereby A. is to convey to B. 28 acres, and B. j^to convey to A. 45 acres. The 28 acres is •part of a tract of 76 acres owned jointly hy A. and C. Before any conveyance B. purchases C.’s portion of the 76 acres, and then A. and C. unite in a deed with general warranty conveying the 76 acres to B. It is subsequently ascertained, that the 28 acres are in fact 31 acres, and the 76 acres are but 73 acres. In a suit by A. against B. to recover compensation for the excess of 3 acres in this 28 acre tract, Held :• — Even conceding that A. might have been entitled to recover for said excess of three acres, if he had conveyed the 28 acres separately, yet as the record shows he is prima facie liable to B. for the deficiency in the tract of 76 acres, he is not entitled to'relief in such suit. (p. 116.)</p> <p>4. Bill in Chancery.</p> <p>A plaintiff must allege as well as prove the facts, on which he claims relief. He can not obtain relief on any ground not alleged in his bill. (p. 116.)</p>

<p>Guardian and Ward.</p> <p>Under the laws of this State a guardian, who has made disbursements for his ward in excess of the income of the ward’s estate, cannot make the ward personally or his real estate liable for such disbursements.</p>

<p>1. Wills — Bequest to a Chuech.</p> <p>A bequest to tbe trustees of a church or unincorporated religious society is void. (p. 126.)</p> <p>2. Wills — Bequest to a Chuech — Statute oe Limitations — Acquiescence.</p> <p>In 1854 S. made his will bequeathing all his personal property except $2,500.00 to his wife. The $2,500.00 he directed “to be put on interest on landed security by his executor and the interest paid annually to the trustees and their successors of the Lutheran Church in Martinsburg for the use and benefit of said church.” I’he will also made the testator’s wife the residuary legatee. The will was admitted to probate in 1855. In 1856 the executor in his first settlement credited himself with “$2,500.00 put out on interest for the benefit of the Lutheran congregation of Martinsburg;” and the widow, the residuary legatee, frequently declared, that “it was the church’s money,” and laid no claim to it, and the. interest was annually paid to the trustees with her knowledge;' and more than twenty years after the probate of the will, to-wit, in January, 1877, she died after having executed her will giving “all money due her or her estate from all sources whatsoever” to certain legatees, who in March, 1880, instituted a suit to have said clause in Jacob Siebert’s will, giving the $2,500.00 to the trustees of the Lutheran church for the benefit of said church, declared void, and the money paid to them. The trustees relied on lapse of time and the acquiescence of Catharine Seibert. The executor of the executor brought $2,500.00 into court and submitted, that it should be paid to those entitled to receive it; and the court decided in favor of the plaintiffs and distributed the money to them under the provisions of Catharine Siebert’s will. On appeal held — (Johnson, President, dissentients):</p> <p>Lapse of time and acquiescence have no application in such a case. (p. 131.)</p>

<p>Appeal.</p> <p>The provision of the statute authorizing appeals to this Court in chancery causes, when there is a decree adjudicating the principles of the case, authorizes such appeal, only when the decree appealed from adjudicates all questions raised in the cause by pleadings or otherwise-; and therefore, if a number of questions are stated in the bill, which the Court is called upon to settle, and but one of the questions is determined by the decree, and all the other questions arising in the cause are especially reserved on the face of the decree, till after a certain person is made a party defendant in the cause, such decree can not be appealed from.</p>

<p>l. FORGERY — INDICTMENT.</p> <p>An indictment for uttering and attempting- to employ as true a forged writing need not set out the whole writing. It is sufficient to give its purport and effect.</p> <p>. CRIMINAL PRACTICE — GrRAND JURORS;</p> <p>An indictment will not be quashed or abated, on the ground that one of the grand jury, who found it, was not a freeholder.</p> <p>3. Criminal Practice — ‘Jurors—'Voir Dire.</p> <p>After a jury has been sworn in a felony ease, it is not error for the court at the instance of the State to examine a juror on oath to ascertain, whether or not lie is a citizen of the State.</p> <p>4. Forgery — Evidence.</p> <p>A deed connected with a transaction, with which an alleged forged receipt is connected, is competent evidence on a trial for uttering such forged receipt.</p> <p>Forgery — Evidence.</p> <p>The note, which purports to have been paid with money, of thé payment of which the alleged forged receipt is the evidence, is competent evidence upon a trial for uttering such forged receipt.</p> <p>6. Forgery — Evidence.</p> <p>Upon such trial it is proper to ask a witness as to the money mentioned in the note — “How was it applied?” — and to admit the answer — “It was applied on the land mentioned in the deed.”</p> <p>1. Forgery — Indictment—V arianoe.</p> <p>The receipt described in the indictment agrees with the receipt offered in evidence on the trial with the exception, that the en-dorsemeut on the latter: — ““Witness Susan M. Armstrong” — is omitted from the former: Held — No material variance'.</p> <p>8. FORGERY — Evidence—Records—Depositions.</p> <p>Upon the trial on an indictment for uttering and attempting to employ as true a forged receipt for money — knowing it to he forged —the record of a cause in chancery between the person so uttering and the person, whose name is alleged to have been-forged, which record includes a deposition in behalf of the accused to the genuineness of the receipt, all tends to show, that the accused did utter and attempt to employ as true said receipt, and is competent evidence.-</p> <p>9. Forgery — Evidence—Confession oe Handwriting.</p> <p>Upon a trial for uttering a forged receipt witnesses may testify to-the handwriting of the alleged forged receipt and being acquainted with the signature of the person, whose name is signed thereto, may in the presence of the jury write the letters of his name, as they think he writes them, and the jury may compare the letters so written with the letters in the alleged forged signature.</p> <p>1Ó. Forgery — Evidence—Prosecuting “Witness.</p> <p>In this State there can be no “prosecutor” in a felony-case, and he, who has been injured by the felony, stands as any other witness and is not a party to the prosecution; therefore the general r'ule, that witnesses testifying in a cause may be cross-examined as to their feelings, bias, &c., towards either party to the cause, can not apply to such witness: and in the trial of a forgery-case this question propounded to a witness on cross-examination: — “Are you not indebted to the prosecuting witness?” — was incompetent, the bill of exceptions not showing any reason to take it out of the general rule; as that the question had been asked after he had been examined touching the reputation for truth of the “prosecuting” witness;</p> <p>11. Forgery — Evidence—Pecuniary Condition oe the Accused.</p> <p>Upon such trial it is proper to inquire into the pecuniary condition of the person, in whose favor the alleged forged receipt purports to have been given at or about the date of such receipt.</p> <p>12. Forgery — Evidence—Change oe Handwriting.</p> <p>Upon such trial it was not error to ask a witness, if the handwriting of the person, whose name was alleged to have been forged, had changed.</p> <p>13. Forgery — Evidence.</p> <p>Upon such trial the jury will not be permitted to receive the proved but not admitted signature of the person, whose name is alleged to have been forged, so as to compare the two signatures. Much less would it lie proper to permit evidence to go to the jury "by a witness, that he had compared the alleged forged signature with one admitted to he genuine, and that they were exactly alike.</p> <p>14. — FokgeRY—Evidence—Reputation or the Accused — Neighborhood.</p> <p>One, who is well acquainted with the members of a community, who best know the person, whose reputation for honesty is the subject of inquiry, is competent to give evidence as to reputation, and such evidence is not confined to his reputation in the immediate vicinity of his residence.</p>

<p>Trusts — Presbyterian Church — Committee oe Publication.</p> <p>A’ testator, before and at the time of Ms death, a member of the Presbyterian Church in the United States, having his domicil in Monroe county, W. Ya., made to certain trustees the bequests hereinafter named upon the following- trusts:</p> <p>“$500.00 to fence the lot of ground, on which Mt. Pleasant Presbyterian Church stands, and the grave-yard belonging thereto;”</p> <p>“$4,000.00 to purchase a parsonage for the use and benefit of the Mt. Pleasant Presbyterian Church forever;”</p> <p>$250.00 to buy books for the library of the Presbyterian Sunday School at Union;”</p> <p>“$250.00 to buy books for the library of the Sunday School at Centreville, Monroe county, W. Ya.;”</p> <p>$250.00 to establish a Sunday School at Fairview school house in Monroe co., W. Ya., and provide the same with a library;”</p> <p>“300.00 foi; the sole and exclusive use and purposes of the Home Missions of the Presbyterian Church in the United States;”</p> <p>One-half of the residue of his estate for the úse and benefit of the “ Presbyterian Committee of Publication, at Richmond, Virginia: ” and the other—</p> <p>“ Half of said residue — to be applied to the purchase of a parsonage for the use and benefit of the Presbyterian Church at Union, W. Ya., forever.”</p> <p>At the time of the testator’s death and for many years before, there was located in Richmond, Virginia, an agency instituted by the General Assembly of the “ Presbyterian Church in the United States,” called the “ Executive Committee of Publication,” consists ing of eleven members of said church, charged with the duty of publishing and circulating its religious literature, who on the 8th of March, 1873, were incorporated by an act of the legislature of Virginia by the name and style of “ The Trustees of the Presbyterian Committee of Publication,” which had for its declared object “ the dissemination of religious truth by means of the printing and circulation of books, tracts, papers, cards, &c., with power to acquire, receive, hold, invest, possess, enjoy, rent, sell, convey and otherwise manage and dispose of, as to them may seem most conducive to the interest and promotion of the Presbyterian Committee of Publication, all lands, money or other property real or personal, which may have been, or which may he given, or otherwise acquired for the use of said committee,” which before aucT after its incorporation was as well known by the name of “The Presbyterian Committee of Publication,” as by its corporate name.</p> <p>In a suit brought by some of the heirs and distributees of the testator, against other of his distributees, and the trustees of said charitable bequests, and the said Presbyterian Committee of Publication to have said charitable bequests declared null and void, and fbr distribution of his estate. Held :</p> <p>I. CONSTITUTIONALITY 03? Va. Ad' 03? MARCH 8, 1873, PRESBYTERIAN Committee oe Publication.</p> <p>The said act of the legislature of Virginia, approved March 8, 1873, incorporating the individuals composing the “ Executive Committee of Publication,” commonly called the “Presbyterian Committee of Publication” by the name and style of “ The Trustees of the Presbyterian Committee of Publication,” was not an evasion or in violation of Section 17 of Article V of the Constitution of Virginia.</p> <p>II. Public Policy.</p> <p>Neither the said act of the Legislature of Virginia, nor the objects and purposes of the corporation thereby created were hostile to the public policy of Virginia as manifested by her current legislation; nor are the same in any degree hostile to the public policy of this State.</p> <p>III. Powers — To Hold Beal Estate — Limit.</p> <p>Said corporation has the legal capacity to take and hold real and personal property by devise or bequest from a testator in this State for its general objects and purposes»as defined by the terms of its charter, provided the amounts so devised or bequeathed to it, do not increase the amount of property held by it to a sum exceeding $200,000.00.</p> <p>IV. Wills — Construction—Uncertainty as to Objects — Evidence.</p> <p>Where the person, object or subject referred to in a bequest is uncertain or does not xirecisely answer the description given to them in the will; or where there are two or more objects or subjects, which equally answer the description, resort may be had to parol evidence and surrounding circumstances to show what the testator intended by the expressions, which he used; and if such intention is so ascertained with sufficient certainty, the bequest is valid.</p> <p>y. Wills — Uncertainty as rp Beneeiciaries — Names—Corporations.</p> <p>Where the name or description is erroneous and there is no reasonable doubt as to the person, who was intended to he named or described, the mistake will not defeat the bequest; and the same rule applies as well to corporations as to an individual.</p> <p>VI. Religious Societies — Presbyterian Church — Committee oe Publication.</p> <p>The incorporation of the “ Presbyterian Committee of Publication,” under the name of “The Trustees of the Presbyterian Committe of Publication ” is not the incorporation of the “ Presbyterian Church in the United States,” nor of “ any religious denomination.”</p> <p>VII. Wills — Trusts—Presbyterian Committee of Publication.</p> <p>The bequest in the testator’s will of one-half of the residue of his estate to the Presbyterian Committee of Publication at Richmond, Virginia, is a valid bequest and was intended to be a bequest to “ The Trustees of the Presbyterian Committee of Publication,” which by its charters had the legal capacity to take and is entitled to take the same.</p> <p>VIII. Wills — Bequests.</p> <p>The several charitable bequests of—</p> <p>$500.00 to enclose the Mt. Pleasant Church and ¿rjtve yard;</p> <p>$4,000.00 to purchase a parsonage for Mt. Pleasant Church;</p> <p>$250.00 for the Presbyterian Sunday School d,t Union;</p> <p>$250.00 for the Sunday School at Centreville;</p> <p>$250.00 for the Sunday School at Fairview school housé;</p> <p>$300.00 for the Home Missions of the Presbyterian Church;</p> <p>and the remaining half of the residue of said estate to purchase a parsonage at Union, are uncertain as to the beneficiaries, and therefore void.</p> <p>IX. Stare Deaises — Rule of Property.</p> <p>Where a decision of this Court has been rendered establishing a rule of property, which has been repeatedly followed in like oases, it will not be disturbed or departed from except for the most cog'ent reasons, and upon a clear manifestation of error.</p>

Statement of the cage by Green, Judge : On the Bd day of February, 1882, there were pending in the Circuit Court of Kanawha- county three chancery suits brought against the heirs of W. M. Peyton and others — one by Madison Morris, administrator, — one by Augustus Pack —and the third by William- Smoot’s administrator. The object of the first of these suits was to subject certain real estate of W. M. Peyton, deceased, to sale to satisfy a vendor’s lien thereon.

Statement of the case by Gbeen, Judge : This was a chancery suit brought by James H. Robinson in the Circuit Court of Ohio county on May 15,1882, against Annie M. James and J. S. James, her husband, and George Robinson, receiver. The bill was filed at June rules, 1882.

<p>I. Reversal of Judgment — Demurrer.-</p> <p>Where a declaration contains two or more counts, and there is a demurrer to each count; some of the counts are had, and the demurrer is oyerrnled as to all; the evidence is all certified, and the case is "brought to this Court on a writ of error, Held : Notwithstanding it was error to overrule the demurrer to the bad counts, still, if this Court is satisfied that all the plaintiff.’s evidence was admissible under the good counts, it will not reverse the judgment of the trial-court for such error, (p. 250,)</p> <p>2. Sale of Personal Pkopekty — Complete oe Executory — Intent of Parties.</p> <p>Whether a sale of personal property is complete or only execu-tory, 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, (page 250.}</p> <p>3. Sale of Peesonal Peopeety — Title.</p> <p>It was error to instruct the jury, that the title to the property therein mentioned vested in the buyer upon the signing and delivery of a contract of the following purport: I have this day sold to B. all my Swiss cheese now in my cellars, between 80 and 90 loaves, this does not include cracked or second class cheese, at 12 cents per S>; the cheese to be paid for when received; the second grade cheese to be at 10cents per lb; B. to pay % freight from P., and to have all out of the cellars before Jan’y 1,1885; and the contract is dated and was delivered Oct. 27, 1884. (p. 250.)</p> <p>4. Sale of Personal Property — Warranty. .</p> <p>In an action upon such a contract it is error to instruct the jury that there was no implied contract that the cheese should be merchantable or salable, (p. 252.)</p> <p>5. Sale of Personal Property — Caveat Emptor.</p> <p>' The maxim, caveat emptor, does not apply to a sale of goods where the buyer has no opportunity for inspection, (p. 252.)</p> <p>6. Sale of Personal Property — Warranty.</p> <p>But where the sale is of a definite- existing chattel, specifically described, the actual condition of which is capable of being ascertained by either party, there is no implied warranty, (p. 253.)</p> <p>7. Sale of Personal Property — Warranty.</p> <p>■ Where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article, (p. 253.)</p>

<p>Parties — Interest nsr Suit.</p> <p>A plaintiff can not obtain relief in equity, unless he both avers in his bill and, if the averment is denied, also proves, that he has an interest in the subject-matter of the suit, and a proper title to institute the suit. If his want of interest or right to sue appears upon the face of his bill, it ought to be taken advantage of by demurrer ; but if it does not so appear, then the defendant may show such want of interest or title by plea or answer, (p. 257.)</p>

<p>1. Compensation for Permanent Improvements.</p> <p>Section one of chapter 151 of the Acts of 1882 does not authorize compensation for permanent improvements put upon the land by one, who claims to be but is not the owner thereof, unless he put such improvements thereon while holding possession under a title believed by him to be good, (p 260.)</p> <p>2. Compensation eoe Permanent Improvements — Account—Bents and Profits — Lands Cleared.</p> <p>Where a decree was reversed in the appellate court, and the title of a purchaser was declared void, and the purchase was decided to have been made in bad faith, and the court remanded the cause for an account to betaken of rents and profits and notwithstanding such bad faith to offset such rents and- profits by the ‘‘value of any improvement she may have put upon it,” and such account was taken, and a balance was struck, and a decree was rendered against the defendant for such balance, such decree will not be reversed, because he was charged rent on lands, which he had cleared, while he was in possession, (p. 262.)</p>

Statement of the case by Gbeen, Judge : John Yanscoy in May, 1854, filed his hill in the Circuit Court of Barbour county setting out, that Thomas Stinch-comb and Isaac McOlasky entered into a contract for the exchange of one hundred and fifty acres of land in Ritchie county claimed by Stinchcomb, but which, it afterwards turned out, he had no title to either legal or equitable, for a tract of land 'of fifty-eight acres owned by McOlasky, to which he had a perfect title legal…

<p>1. Commissioner's Report — Appeal.</p> <p>; A decree, which sustains certain excejitions to a commissioner's* report and re-commits the cause to the same or another commissioner, is not axipealahle. (p. 283.)</p> <p>2. Commissioner’s Report — Exceptions.</p> <p>Items or matters excepted to in a report of a commissioner, which by the court is re-committed, will not he open to judicial investigation in acting upon the report made upon such re-commitment, unless such items or matters are excepted to in the latter report, (p. 283.)</p> <p>3. Executors — Wills—Appraisement Bill.</p> <p>Executors are to he charged with the items in the appraisement-bill, unless they can show, that the property did not belong to the testator at the time of his death, or in some other way account for the disposition of such'items. (p. 284.)</p> <p>4. Executors — Wills-Personal Property op Testator — Business oe Testator.</p> <p>The executors are to he charged with the personal property owned by the testator at the time of his death, which came or ought to have come into their hands; and they will not he permitted to carry on the business, in which the testator was engaged at the time of his death, and charge the estate with any loss occasioned thereby, or to mix np the accounts of such business with their executorial accounts, (p. 284.)</p> <p>5. Executors — Wills—Cash—Appraisement.</p> <p>Executors must be charged with the cash in the testator’s safe; at the time of his death, -which came into their hands, and will not he allowed to rely on the appraisement for such items, which is much less than the cash actually received, (p. 284.)</p> <p>6. Appraisement — Wills—Evidence.</p> <p>An appraisement of property in Maryland hy appraisers appointed in West Virginia, where the will was admitted to prohate, will not he prima facie evidence of the amount and value of such property, (p. 288.)</p> <p>7. Executors — Wills—Sureties.</p> <p>Where a testator in West Virginia in his will required his executors to sell all his personal property, “ wherever situated, ” and a tract of land owned hy him in Illinois and dispose of the proceeds, as directed in the will, and the testator had large personal property in Maryland, and there were no letters of administration issued in that' State nor in the State of Illinois, and the executors took charge of the property in Maryland and disposed of it hy selling a portion there and bringing the residue into West Virginia and disposing of it here, and sold the Illinois land and received the proceeds, they and their sureties will in West Virginia he required to account for such property and proceeds, (p, 296.)</p> <p>8. Executors — Wills—Principal and Surety.</p> <p>Where executors execute a joint hond, they stand as to each other in the relation of principal and surety, each as principal quoad his own acts and as surety qtioad the acts of the other, (p. 299.)</p>

<p>1. Presumption oe Payment.</p> <p>A suit is brought to sell a debtor’s lands, which is referred to a commissioner to report the nature, amounts and priorities of the liens thereon, and among others a certain debt is so reported in favor of a certain creditor: the cause is afterwards three times re-committed to the commissioner for the same purpose, and said debt is as often reported without exception thereto. In the mean time said debt has in said cause been adjudged liable to the lien of execution against said creditor exceeding the amount thereof without objection made thereto by said debtor for six years after said first report, Held:</p> <p>These circumstances sufficiently rebut the presumption of payment, arising from the possession by the obligor of the bond evidencing the debt, with the obligees’ endorsement thereon — “Paid in full” — without date. (p. 309.)</p> <p>2. Judicial Sate — Judgment Lien.</p> <p>If in such a suit it clearly appears, that one of the tracts of land charged with the liens of the several judgments against" such debtor also charged with a specific lien exceeding in amount the value thereof, having' priority over all other liens thereon,— the court may properly decree the sale of other lands of the debtor without decreeing a sale of the tract charged with such specific lien. (p. 310.)</p> <p>3. Judicial Sale — Judgment Lien — Commissioner’s Report.</p> <p>If in such a suit there has been a commissioner’s report, showing the lands owned by the debtor, the nature, amounts and priorities of the liens thereon, which has been confirmed, there is entered a decree, “that unless the debts therein audited are paid within sixty days from the rising' of the court by the debtor (naming him) then the lands of said debtor, in said report named, all be severally sold to pay the liens on the same in the order of their priority, as set out in said report,” without any further statement or declaration therein, specifying- the sums to be paid to the several creditors, the parcels of laud on which they are chargeable, and the order of priority in which the proceeds of the sales of the several parcels of land shall be applied, such decree is erroneous, and for that cause will be reversed, unless the same from tlie commissioner’s report and the face of the decree can he safely amended; in which case, it will he so amended in the appellate court, and when so amended, will he affirmed, (p. 311.)</p>

<p>1. Riparian Rights — Ohio River — Low-Water-Mark.</p> <p>The riparian iiroprietors of lands, bounded on the Ohio river in this State, own the fee in the lands to low-water-mark, subject to the easement of the public in that portion between the highland ■low-water-marlc, with the right of the State to control the same for the purposes of navigation and commerce without compensation to the owner.</p> <p>2. Riparian Rights — Ohio River — Warranty—Injunction—License.</p> <p>When land lying on the Ohio river is conveyed by deed with general warranty and calling for low-water-mark on said river as one of its boundaries, the warranty is not broken by reason of the fact that the public owns an easement therein, and she or one of her municipal corporations has perpetually enjoined the purchaser from building a wharf or private landing on the land below high-watermark without his obtaining a license to do so.</p>

<p>1. Statute or Limitations — Corporations.</p> <p>Public corporations, whether municipal or simple agencies of the State, when clothed with ¡the capacity to sue and be sued, to have a common seal, to take and hold in'ojierty and transact business, are governed by the same laws and rules and subject to the same regulations and limitations that natural parties are, except so far as they may be exempted by positive law. (p. 329.)</p> <p>2. Statute oe Limitations — Corporations.</p> <p>The statute of limitations runs against such corporations in the same manner as it does against private corporations, (p. 329.)</p> <p>3. Statute of Limitations — State—Foreign Corporations.</p> <p>The rights and immunities of a sovereign State belong to her rvithiu her own jurisdiction and territory, and when she becomes a suitor in the courts of a foreign State, she is treated as a foreign private corporation, (p. 329.)</p> <p>4. Statute oe Limitations — State.</p> <p>A sister State suing upon a private claim in another State is not exempted from the operations of the statute of iimitations of the lex feri. (p. 329.)</p> <p>5. Statute oe Limitations — Administrator.</p> <p>Where a cause of action accrues to the estate pf a decedent at the time of his death, and not before, and no one qualifies as administrator until more than five years thereafter, the law conclusively presumes that an administrator qualified on the last day of said five years and the statute of limitations begins to run in favor of the estate of the decedent from that time, whether or not there is, in fact, any administrator of the estate, (p. 330.)</p> <p>6. Decree between Cq-Deeendants.</p> <p>Where the plaintiff in a suit is not entitled to any relief there can be no decree between co-defendants, nor any recovery by one defendant against another defendant, (p.332..)</p>

<p>1. Ejectment — Compensation Eob. Improvements.</p> <p>Under our statute, chap. 91, Amd. Code, a claimant-, who has been evicted from land by the true owner, is not entitled to compensation for iiermanent improvements placed by him upon the land, when it is shown, that both the owner and, such claimant derive title from the same grantor, and that at the time of the conveyance to the claimant the deed of the owner had been duly recorded in the proper county, although such claimant may not have had any actual notice of the better title, unless the owner had "been guilty of fraud or laches in not notifying such claimant to desist, when he knew the improvements were being made by the claimant under a mistaken belief, that his title was good. (p. 336.)</p> <p>2.- Ejectment — Compensation fob Impeovements — BONA FIDE8 of Defendants.</p> <p>To entitle such evicted claimant to compensation for his improvements, he must be a bona fide holder or claimant of the land, and must have had reasonable grounds to believe his title good at the time he made the'improvements, (p. 337.)</p> <p>3. Ejectment — MALA FIVES-.</p> <p>A case in which it is held upon the facts disclosed, that the evicted claimant is not entitled to compensation for improvements.</p>

<p>1. Evidence — Appellate Couet — Sunday-Law.</p> <p>Where on atrial for a violation of section 16 of chapter 149 of the Code (sec. 16, chap. 123 of the Acts of 1882)- the record shows, that the defendant was examined as a witness in his own behalf, and that the record of the conviction of said defendant for “false swearing ” was admitted in evidence, but it does not appear, whether said record was admitted before or after the defendant testified, the appellate court will presume, that the record was-admitted after the 'examination of the defendant and for the purpose of impeaching his credibility, (p. 342.)</p> <p>2. Jury — Sunday-Law—Reversal.</p> <p>On a trial for a violation of the Sunday-statute it is the province of the jury to determine under all the facts and circumstances of the case, whether the work charged to have been done on Sunday was or was not a work of “ necessity; ” and when the jury has found, that it was not a work of necessity, the appellate court will not disturb the verdict unless the facts proven do not warrant such finding, (p.343.)</p>

<p>1. TRUSTS AND TRUSTEES — MISAPPLICATION OP FUND — SUIT POR Ac-: COUNTING.</p> <p>Where a trustee misapplies trust-funds by paying them to a person, who, he must know, is not entitled to receive them, and such person knows, that the trustee violates his trust in paying' the funds to him, the cestui que trust may bring a suit in equity against the trustee alone to compel said trustee to account to him for the amount of misapplied funds, or he may, if he elect so to do, bring his suit in equity against both the trustee and the person, to whom the trustee improperly paid the funds, to compel them to account therefor, (p. 353.)</p> <p>2. Trusts and Trustees — Decrpjs.</p> <p>In such a case the decree should'be first against the person, who has improperly received the funds, and if he can not refund them, there should be another decree against the trustee, who should be regarded as surety of the person, who has improperly received the funds, (p. 353.)</p> <p>3. Partnership — .Suit against after Dissolution.</p> <p>When a firm lias received money, and after its dissolution a chancery suit is brought against the persons, who were the members thereof to compel them to refund the money, it is not necessary, though it is usual and best, to describe these persons as lately doing business under a certain name and in the prayer of the bill to ask, that they may be made parties defendant. But if the bill fails to do so it is not on that account demurrable. <p. 354.)</p> <p>4. Thusts and Trustees — Appellate Court — Objections.</p> <p>Where a suit in chancery is brought against a trustee and a person, to whom he has improperly paid a portion of the trust-fund, to enforce the payment of a debt secured by a deed of trust, the suit being brought, after all the trnst-property has been sold, and .all of the proceeds have been paid out by the trustee, and there is no allegation of fraud in the pleading, and no question is in any manner raised as to the validity of the trust-deed in the court below, the appellate court can not inquire into its validity or declare the deed of trust void, though on its face there are provisions, which strongly indicate, that such deed of trust was fraudulent. (p. 360.)</p>

<p>1. Sale — Conditional—Passing oe Title.</p> <p>If by a contract the owner of personal property transfers the property immediately to another with a condition in the contract, that it is to be paid for by him in instalments at specified times, and that the title to the property is to remain in the original owner, till all the purchase-money has been paid, this is a valid contract between the parties and between them is a conditional sale, and the title to the property as between them does not vest in the ven-dee upon the-delivery of the properly, nor until he performs the condition, or the vendor waives it. (p. 3G6.)</p> <p>2. Sale — Payment in Labob — Bbeach—Detinue.</p> <p>If in such a contract the payments for the property are to be made in work, and not less than twenty dollars’ worth of work at specified prices is to be done by the vendee for the vendor, till the whole price be paid, and the vendee contracts to do not less than twenty dollars’ worth of such work in each month as part payment on such purchase, and it is stipulated, that, if this contract is not complied with by the vendee, he is to surrender the property to the vendor, — and the vendee fails in any month to do twenty dollars’ worth of work for the vendor, and he demands possession of the property, which the vendee refuses to surrender, the vendor may at once bring an action of detinue for such property against the vendee without waiting, till the time has passed, in which by the terms of the contract all the purchase-money was to have been paid, even though in such coutract the property is said to have been hired to the vendee for that length of time. (p. 371.)</p> <p>3. Sale — Exchange.</p> <p>If such contract provided, that the vendee might at any time exchange such property for other personal property with the consent of the vendor, and this is done with a prior or subsequent assent of the vendor, he may bring an action of detinue for such property taken in exchange by the vendee, whenever he could have brought an action of detinue for the original property conditionally sold. (p. 375.)</p> <p>4. Sale — Detinue—Damages.</p> <p>In such case the measure of damages for the unlawful detention of such property would be ordinarily the value of the use of the property from the time, the vendee illegally refused to surrender it to the vendor, until the rendition of the verdict by the jury, excluding any compensation for the use of the property, while the vendee held it legally, and abating nothing from the damages because of payments in work or otherwise made by the vendee to the vendor for the property under the contract, (p. 376.,)</p>

<p>Decebe — Modified oe Annulled.</p> <p>In 1881, “ K ” filed his bill .against “ H and wife ” seeking to set aside as fraudulent and void, a voluntary conveyance of certain lands from “ H ” to his wife and praying that the same may be sold to satisfy his judgment against “II.” On the 9th of December, 1881, the cause was heard upon the bill taken for'''confessed against “H and wife,” and the court entered a. decree annulling said conveyance, and directing a sale of the lands conveyed to the wife, to pay the judgment against “H.” On the 23d of December, 1881, and during the same term, the court on motion of “ H and wife,” set aside the decree of the 9th of December, 1881, and allowed them to answer the bill. Held :</p> <p>I. During the term of the court at which a decree is entered, it is completely under the control of the court, and may be modfied or annulled on motion, or at the suggestion of the court without motion.</p> <p>II. The court did not err in setting aside the decree of the 9th of December, 1881, and in allowing the defendants to answer the bill. (p. 383.)</p>

<p>1. Married Woman — Judgment.</p> <p>A judgment rendered by a court of common-law against a married woman either in lier own name or in the name of a company, under which she does business, upon a contract made-during,her coverture is absolutely void; and an execution or suggestion sued out upon such judgment is invalid and ineffectual for any purpose. (p. 387.)</p> <p>2. Married Woman — Judgment.</p> <p>Such judgment may be assailed collaterally in proceedings upon a suggestion thereon, (p. 388.)</p>

<p>1. Fraudulent Conveyance — Husband and Wire — Consideration.</p> <p>A conveyance of tlie real estate, made directly or indirectly by a husband to his wife in consideration of a valid debt due from the husband to the wife, is fraudulent and void as to the existing creditors of the husband, when it is shown that said consideration is much less than the value placed upon the property by both the-husband and the wife and they attempt to make out a consideration equal to or in excess of the value of the property by adding to said, valid debt other indebtedness of thehusband to the wife which had no existence in fact. (p. 391.)</p> <p>2. Fraudulent Conveyance — Consideration.</p> <p>In such case, if it appears that the wife actively participated in the attempt to sustain said conveyance by claiming that such additional and unfounded indebtedness was a part of the consideration for the property, the conveyance will be treated as fraudulent in fact and void in tato as to the creditors of the husband and will not be permitted to stand as security to the wife for the valid portion of the consideration paid by her as against such creditors, (p. 395.)</p> <p>3. FRAUDULENT CONVEYANCE — CONSIDERATION—BADGE OE FRAUD. ■</p> <p>When suoli conveyance is made in consideration of a pre-exist-ing indebtedness, it is a badge of fraud for the grantee to retain the evidence of such indebtedness in his possession uncanoelled after the conveyance has been completed, (p. 300.)</p>

<p>Striking Cause from the Docket.</p> <p>A chancery cause is pending in the Circuit Court, in which an-order of reference is made on May 10,1871; within the four years prior to October 13,1877, no order had been made in the cause, but within that time the commissioner, to whom the cause was referred, had taken depositions upon the matters referred to him, though neither the depositions nor the report were returned to court or filed in the cause; then on said last mentioned day, in the absence of the plaintiff and her counsel, an order is entered by the court on the motion of defendants’ counsel striking the cause from the docket under the provisions of section 8, chapter 127, of the Code; after two terms of the court had passed and within three years from the date of said order, the plaintiff by leave of the court filed his bill of review to have said order set aside for errors apparent upon the record, and the said bill was sustained and' the order set aside by the Circuit Court. Upon appeal the said order setting aside the order striking the cause from the docket is affirmed by this Court, the judges being equally divided on the question as to whether said order should be reversed or affirmed.</p>

<p>Puha in Abatement.</p> <p>A plea setting up the fact, that the plaintiffs, commissioners of the court appointed in a chancery suit and in a proceeding at law to recover on a bond executed to them as such commissioners, had not executed the bond required by the statute and were therefore not entitled to maintain such action, is a plea in abatement and under the statute must he filed at rules, and can not be received in court.</p>

<p>1. Public Road.</p> <p>Every road worked as a public road under the direction of a surveyor of roads shall in all courts of this State be deemed a public road, although it may not appear, that the same was formally established by an order of the County Court a® a public road.</p> <p>2. Rp, versal op Judgment — Presumption in Favor op Trial-Court.</p> <p>In an appellate court every presumption is in favor of the correctness of the judgment of the inferior court; therefore, when the judgment of the inferior court depends upon its finding on the facts presented to it, if those facts are not made a part of the record, such judgment can not be rightfully reversed by the appellate court.</p>

Statement of the case by Geeen, Jud&ei The plaintiffs, J. A. Hall & Go., on September 16,1881, procured from a justice of Cabell county a summons against A. Lyons and W. A. Lyons, doing business as A’. Lyons & Co., to answer the plaintiffs for the recovery of money due them for merchandise, the amount of the demand being stated to be $187.21. The case was tried before the justice on October 1,1881; and the defendants appeared.

Statement of tbe case by GreeN, Judge : This was a bill filed at May rules, 1880, by John T. Halli-day against George S. Miller and Bartley F. Miller to set aside as voluntary and fraudulent two deeds executed by George S. Miller to bis son Bartleji F. Miller conveying to him two parcels of land.

Statement of the case by Geebn, Judge : This was a chancery-suit brought in May, 1883, in the Circuit Court of Pleasants county by ’William Burt to set aside as fraudulent a certain deed made on April 5,1880, by A. 0.

<p>1. Acceptance — Condition.</p> <p>An order to “pay four hundred dollars out of funds, that may be due me as .per our contract,” is not absolute hut conditional; and the acceptor’s liability is dex>endent on the eontingdncy, that according to the terms of the contract anything may be due the drawer thereon, (p. 462.)</p> <p>2. Acceptance — Condition—Consideration.</p> <p>Where A. held liens on two lots of B., and C. bought the two lots, and in consideration, that A. would release the liens, he paid her $300.00 in cash, and accepted an order drawn by B. on himseli for $400.00 to he paid out of funds, that might be dud on a certain contract, and A. made the release and aecex>ted the money and the conditional order, and their contract failed, and no money was due on it, and C. afterwards promised to pay the $400.00. Heed— There was no consideration for such promise; and the order being cor ditional, and the condition having failed, no recovery can be had on the order, (p. 468.)</p>

<p>1. Estoppel — Distinct Eights.</p> <p>“Where the same person has two separate and distinct rights or interests in the subject-matter of a suit, and the allegations of the hill comprehend hut one of said rights or interests, the fact, that such person is made a party to such suit, will not estop, conclude or prevent him from asserting or defending his rights or interests ■ in regard to said subject-matter, so far as they are .not involved or comprehended in the allegations of the bill in such suit. As to the matters not so comprehended in the bill he will not be regarded as a party to the suit.</p> <p>2. Estoppel — Party—Trusts and Trustees.</p> <p>If a person is interested in the subject-matter of a suit in two capacities, the one as trustee in one deed of trust and the other as beneficiary in a different deed of trust, both deeds of trust being upon the same property, and’he is made a party to a suit brought to set aside the latter trust-deed, in which no reference is made to him as trustee in the other trust-deed, he will not he regarded as a party to said suit in his capacity of trustee in the former trust-deed.</p> <p>3. Estoppel — Vendor’s Lien — Trusts and Trustees.'</p> <p>If a person has a vendor’s lien on real estate, which his vendor has conveyed to him as trustee by a subsequent trust-deed to secure certain debts to other persons, in which no reference is made to his debt, and a suit is afterwards brought to set aside said trust-deed and subject the property to the payment of a judgment, to which suit such person is a party as trustee but in no other capacity, and there is no convention of the lien-creditors or reference in the bill or proceedings to said vendor’s lien, the said person may as against the purchaser of the land in said suit enforce his vendor’s lien against the land in a subsequent suit.</p>

<p>CONTEMPT — JUKISDICTION.</p> <p>A judgment is entered by the Circuit Court fining a party $25.00 for contempt; an execution is issued upon this judgment; and subsequently such party moves said court to quash the execution, which the court refuses to do. The party then obtains a writ of error from this Court to the order refusing to quash said execution. Held :</p> <p>I. Such writ of error does not bring- before this Court for review the original judgment imposing the fine.</p> <p>II. The matter involved in the judgment refusing- to quash the execution being merely pecuniary and of less value than $100.00, this Court has no jurisdiction to entertain the writ of error taken therefrom.</p>

<p>Commissioner. — Judicial Sale — Sale-Bonds.</p> <p>Where a commissioner, who made<sale of land under a decree of the court, brings suit and avers in his bill, that the sale had been confirmed, and that he had been appointed commissioner to collect the sale-bonds, and exhibits with his bill a decree, which by fair and reasonable construction and strong implication, though not in express terms, authorizes him to collect the sale-bonds, both the bill and the decree offered to prove its allegations will be treated as sufficient to sustain the suit.</p>

<p>1. Subbogation.</p> <p>The doctrine of subrogation, being the creation of courts of equity, is so administered as to secure essential justice, without regard to form, and is independent of any contractual relation between the parties to be affected by it. (p. 483.)</p> <p>2. Subbogation — 1-Iow Applied.</p> <p>It is not applied in favor of one who has officiously and as a mere volunteer paid the debt of another, for which neither he nor his property was answerable; but it will be applied, whenever the person claiming its benefit has paid a debt, for which another was primarily answerable, and which he was compiled to pay in order to protect his own rights or save his own property, (p. 483.)</p> <p>3. Subbogation — Judgment-Lien—Bents and Profits.</p> <p>By written contract A became the purchaser of a tract of land from B. At the time of the purchase the land was subject to a vendor’s lien in favor of C, which A with the consent of B paid off out of the purchase-money due from him. After the sale, but before A had his contract of purchase recorded, D obtained a judgment against B, and by suit sought to subject the land to the payment of his judgment. 1-Ield :</p> <p>1. As against the judgment of D A is entitled to be subrogated to the rights of C, and D is only entitled to have his judgment satisfied out of the proceeds of the sale of the land, after A has been repaid the amount of the vendor’s lien paid by him to 0 with its interest, (p. 484.)</p> <p>II. In such ease D has no right to call upon A for an account of rents and profits during the time he has held the land under his purchase, (p. 486.)</p>

<p>1. Order — Decree—Vacation".</p> <p>A court has no power to enter an order or decree in vacation, unless so authorized by statute.</p> <p>2. Vendor and Vendee — Purchase-Money—Injunction.</p> <p>Equity will enjoin the collection of the purchase money on land on the ground of defect of title, after the vendee has taken possession under conveyance from the vendor with general warranty,’ if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can show clearly, that the title is defective.</p> <p>3. Vendor and'jVendee — Injunction—Quia Timet.</p> <p>By the words — “if the title is questioned by suit either prosecuted or threatened ” is not meant, that it is sufficient to allege in the hill, that a suit is threatened merely, but the bill on its face must allege the ground, upon which the threatened suit is based, which must be such, as will put a reasonable man in just apprehension of the loss of his land.</p> <p>4. Vendor and Vendee — Injunction—Quia Timet.</p> <p>The mere fact, that some one has asserted a claim to the land, and that that fact is generally known in the community, where the land is situated, is insufficient to justify a court of equity in restraining a sale made under a trust-deed to secure the purchase-money of the land.</p>

<p>1. Official Bond — Commissioner—Parties.</p> <p>A suit in equity for the breach of the condition, of a commisioner’s bond, given under our statute and payable to the State, may be maintained by and brought in the name of the party injured by such breach, and the State need not be made a party thereto, (p. 504.)</p> <p>2. Official Bonds — Commissioner—Estoppel — Principal and Surety-.</p> <p>Two special commissioners are directed by a decree in a cause to collect a fund and loan the same, and to take from the loanees bonds with good security; they subsequently report that they have loaned the fund to a number of persons giving the names and amounts loaned to each, among which' are the names of the commissioners themselves; the court enters a decree reciting the substance of what appears in the report ^and directs the commissioners to hand over to the party entitled thereto the bonds for the fund so loaned; this report is not excepted to, nor is it in terms confirmed by the decree; the commissioners turn over bonds for the whole fund except the amounts reported as loaned to themselves; in a suit afterwards brought by the party -entitled to the fund for the amount so reported loaned to one of the ■commissioners. Held :</p> <p>I. The plaintiff is not estopped or concluded by said report and ■decree in said former suit from recovering said fund and holding the commissioners and the sureties on their bond liable therefor. (p. 505.)</p> <p>II. The bond given by the commissioners and their sureties being joint all the obligors are liable as principals to the plaintiff; but as between themselves the commissioner who received and used the fund is liable primarily, the co-commissioner secondly', and the sureties thirdly, (p. 507.)</p>

<p>J URISDICTION — RÉCORD.</p> <p>Where the matter in eontroyersj^ is merely pecuniary, in order to give this Court jurisdiction the record must affirmatively show,, not only that the party complaining has been prejudiced by the decree- of the inferior court, but also that the amount in controversy in this Court is of greater value than one hundred dollars-exclusive of costs, (p. 511.).</p>

<p>1. Sale — Trusts and Trustees — Dismissal oe Suit.</p> <p>An injunction is awarded upon a bill restraining a trustee from selling the trust-property, which is real estate, upon the ground that there is a defect in the title to part of the property, usury in a portion of the trust-debt, and the existence of other trust-deeds and judgment-liens on the property. An order is subsequently made by the court dissolving the injunction, denying the relief prayed for and dismissing the bill. The trustee then sells the property under and according to the terms of the trust-deed. After the sale is completed by conveying the property to the purchaser, the order dismissing the suit is set aside and leave given the plaintiff to amend his bill, which he does by making the purchasers at the trust-sale and others parties. This amended bill, however, does not allege, that there is any defect in the title to the property sold by the trustee, or that there is any usury in the trust-debt, or uncertainty in any of the trust-debts or judgment-liens or their priorities; but it seeks to'set aside the sale, upon the ground that the same was improperly made by reason of the facts disclosed in the bill and proceedings in said suit, and that the reversal of the order dismissing the suit vacated the sale, and upon other specific grounds depending upon extrinsic facts, which the plaintiff wholly failed to sustain by proofs. The court below dismissed the bill. I-Ield : There was no error in such dismissal of the suit. (p. 817.)</p> <p>2. Sale — Trusts and Trustees — Judgment-Dien.</p> <p>A court of equity will decline to set aside a sale made by a trustee, simply upon the ground that at the time of the sale the trust-property was encumbered by other trusts and judgment-liens, especially where it appears, that there is no uncertainty or controversy as to the amounts and priorities of such liens, (p. 519.)</p> <p>3. Sale — Trusts and Trustees — Fraud.</p> <p>Where the trust-deed provides for a sale for cash, and the creditor instructs the trustee to accept in payment only gold and silver or legal tender currency, the announcement of that fact at the sale ydthout any fraudulent purpose will not vitiate the sale. (p. 519.)</p> <p>4. Salk — Trusts and Trustees — Burden oe Prooe.</p> <p>It is incumbent upon the party, who asks a court of ecpiity to set aside a sale made by a trustee, upon the ground that the sale was not duly advertised and properly made, to establish said grounds by satisfactory proof, (p. 521.)</p> <p>5. Sale — Inadequacy oe Price.</p> <p>Such sale will not be set 'aside for inadequacy of price alone, unless the inadequacy is so gross as to justify the presumption of •fraud. A sale for one half the estimated value is not such inadequacy. (p. 521.)</p>

<p>1. Declaration — Penal Bond — Demurrer.</p> <p>A declaration in debt on a penal bond executed to an individual must contain an averment of the non-payment of the penalty; and. if it does not the defect will be fatal on general demurrer. It is otherwise in cases of. official bonds payable to the State, (p. 525.)</p> <p>2. Declaration — Demurrer—Reversal oe Judgment — Amendment.</p> <p>When the inferior court properly sustains a demurrer to a declaration and enters judgment in the action for the defendant without giving leave to the plaintiff to amend, this Court will, if the defect in the declaration appears to he amendable, reverse the judgment and remand the case with directions to grant leave to the plaintiff to amend, if he elects to do so. (p. 525.)</p> <p>3. Declaration — Amendment—Reversal oe Judgment.</p> <p>But if in such case the record shows, that the plaintiff' declined to amend his declaration, then this' Court will not reverse the judgment, although it distinctly appears, that the defect in the declaration could have been readily amended, if the plaintiff had oliosen to do so, hut the judgment will be'affirmed, (p. 525.)</p> <p>4. Principal and Surety — Replevin Bond.</p> <p>Quaere — In an action on a replevin bond given by the defendant in an attachment-suit while pending in a State court prior to the Act of Congress of March 3, 1875, conditioned to perform the judg- . inent of said State court in such action, can the surety on such bond he made liable for a judgment rendered in such action by a Federal Court, to which the action had been regularly removed-under the Acts of Congress? (p. 526.)</p>

Statement of.the case by Woods, Judge : This was an action of debt brought in the Circuit Court of Cabell count)*- by The Peabody Insurance Compairy against. Wilson & Beardsley, makers, and E. S. Buffington indorser of a promissory note in the words and figures following: “$4,000.00.

<p>Waiver — Pleamxr and Practice — Demurrer—Dude to Answer,.</p> <p>A decree overruling a demurrer by the defendant to the plaintiff’s bill uses these words: “And the defendant not asking further time t<? answer said bill,” Held : These words as construed by the context are equivalent to the words, and the defendant not desiring further time, &c., and therefore operated as a waiver of a rule upon the defendant to answer the bill.</p>

<p>1. Declaration — Pleading and Practice.</p> <p>It is an elementary rule in pleading, that the declaration must allege all the circumstances necessary for the support of the action, and contain a full, regular and methodical statement of the injury, which the plaintiff' has sustained, with such precision, certainty and clearness, that the defendant may be distinctly informed of the specific grounds of the action, and thus be enabled to answer by a, direct and unequivocal plea with evidence to support it. (p. 574.)</p> <p>2. Declaration — Demurrer, Pleading and Practice.</p> <p>A case in which the declaration fails to conform in its averments to the essential requirements of this rule, ail'd is, therefore, held fatally defective and insufficient on general demurrer, (p. 575.)</p>

Statement of tbe case by GbbeN, Judge : Allison Clark obtained in 1795 a patent from the Commonwealth of Virginia for a tract of land of 430 acres in, what is now Lewis county in this State. It was sold and conveyed three different times and finally to Jonathan M. Bennett of «aid county at some time prior to 1885, who had a good title thereto.

<p>Í. EvidencIf — Uncord of Marriages and Births.</p> <p>An abstract from the books of the County Court, containing a record of the marriages and births duly certified by the proper officer having the custody thereof, is prima facie evidence of the facts therein stated.</p> <p>2. Evidence — Marriage-License—Construction of Statute.</p> <p>Where the issue was, whether a married woman, who liad exe-eutecl a deed, was at the time a minor, she may under see. 27 of cliap. 63 of the Code introduce in her own hehaif an abstract of her marriage-license, which sets forth her age at that time.</p> <p>3. Evidence — Ejectment.</p> <p>If in an action of ejectment evidence by the female plaintiff, that she did not sign or acknowledge the deed, under which the defendant claims title, be admitted without objection, the defendant may rebut by evidence, that she received a part of the consideration for the deed.</p> <p>4. Cektieicate or Acknowledgment, &c. — Deed—Oonstkuction oe Statute.</p> <p>In a certificate of the acknowledgement of a deed of a married woman the words — “she acknowledged, that she had willingly executed the same, and does riot wish to retract it” — are not a substantial compliance with the statute, which requires the certificate to show, that “she acknowledged the same to be her act and declared, that she had willingly executed the same, and does not wish to retract it.”</p>

<p>ITuaudulent Conveyance.</p> <p>A sewing machine company by its agent on March 19; 1884, made a contract with T. J. D. to sell sewing machines for it; and J. Y. D., the father, gave a guaranty, that the son would faithfully pay all sums, which he might owe under said contract; and the father and his sons, T. J. D. and J. T. D., represented, that the father was solvent and owned ninety four acres of land. The father had in 1881 made and delivered a deed for this land to said two sons, which deed was never recorded. After the above contract was made, the father and the two sons agreed, that the deed should be made for the land tó J. T. D., which was done, and the deed was placed on record the day before the son, T. J. D., entered upon his duties under the contract. The said T. J. D. became indebted soon after to the company in a large sum of money and then became insolvent. Upon bill filed to subject said land to the payment of the debt, Held :</p> <p>Under the circumstances of the case the scheme was to defraud the plaintiff; and the ninety four aeres of land should be subjected to the payment of the debt.</p>

<p>1. Set-oee.</p> <p>’The 1st, 2nd, 3rd and 4th points of the syllabus in Nuzum v. Morris, 25 W. Va. 559, re-afBrmed.</p> <p>2. Set-oee — Attorney's Fee.</p> <p>Where a suit in chancery was pending to subject land to the payment of liens charged thereon, and a decree of sale and a decree confirming sale were on petition of the debtor reversed in the appellate court, and a judgment was there entered for the debtor against the first lien-creditor for the costs in the appellate court, which judgment the debtor assigned to his attorney in part payment of his fee, and the cause was remanded, and it appeared, that the property was sufficient to pay the first lien, and the court refused to allow the assignee and attorney to be paid out of the fund "but set off tlie judgment for costs against it part of the judgment against the assignor — JIeld :</p> <p>Under the circumstances the allowance of the set-off was inequitable and should not have been made; but a decree should have been entered for tlie whole amount of the plaintiff’s claim a'gainst the debtor requiring the creditor’ out of the money realized to pay the assignee and attorney the amount of his claim.</p>

<p>1. PaRtihs — Appeal—School-Fund—Sale oe Forfeited Lands^|| COM-MISSIONER OE HCHOOL-IjANDS.</p> <p>In proceedings by tlie commissioner of school-lands under cliap, 134 of acts of 1872-3 for the sale of forfeited lands for the benefit of the school-fund, the former owner of such lands or other persons claiming title thereto having no rights to be affected and no interest in the proceedings are not entitled to he made parties in the Circuit Court; and if inadvertently they be made parties in that court, that fact will not give any right to appeal to this Court.</p> <p>2. Parties — Sale oe Forfeited Lands — Title—Jurisdiction.</p> <p>Such a proceeding was never designed to settle the title to land between opposing claimants; and if they be improperly made defendants in such proceeding, the Circuit Court has no jurisdiction in such a case to adjudge, which of such claimants has the better title to the laud so as to bind any of such improper parties by such adjudication in any controversy, which they may thereafter have, involving the question, who has the better title to the land.</p>

When the case of the Kanawha Valley Banlc against A. K. Wilson and others, decided at the special term of this Court in December, 1884,… Held: and the amounts and priorities thereof, and what other liens, if any, on said house and lot, and their amounts and priorities.” 4th. “Any other matter the said commissioner may deem pertinent, or any party in interest may require, or that may be required by the mandate of the Supreme Court of Appeals or the opinion accompanying the…

Statement of the case by Ghees, Judge : This was an.action of ejectment brought by John S'. Williams against Jolm S. Ewart in the Circuit Court of Randolph county, November 2d, 1870.

<p>1. Subrogation — Taxes—Assignment or.</p> <p>The levying and collecting of a tax, whether State or county, is a matter solely of statutory creation. Such taxes are not debts;, and unless they are expressly or by plain implication authorized to be assigned legally or equitably, they are incapable of assignment; and no one can be subrogated to the rights and remedies of the State, (p. 683.)</p> <p>2. Subrogation — Taxes—Advances by Sheriff.</p> <p>If therefore under the -Code of Virginia of 1860 the Sheriff settled in full with the auditor and paid all the State-taxes not returned delinquent, he can not thereafter by distraint or in any other manner make out of any tay-payer not returned delinquent, and whose taxes he has advanced, the amount of the taxes so advanced, as he ■can not be subrogated to the rights and remedies of the State for said taxes; nor can '.lie in any manner make it out of the estate real or personal of said tax-payer either before or after his death. And when said Sheriff has made said settlement and said payment In full to the auditor without any promise express or implied by said tax-payer to refund the amount so advanced, lie'can not recover it in any action of assumpsit or any other action; nor can he make the amount of said taxes out of the estate of said tax-payer either as taxes or as a debt due to him. (p. 689.)</p> <p>3. Appeal.</p> <p>Under the statute allowing appeals to this Court no appeal can be allowed, on the ground that the decree complained of adjudicated the principles of the cause, unless all questions of controversy in the cause, which have in any manner arisen, were adjudicated by the decree or had been previously settled, before this decree was entered, (p. 699.)</p>

<p>1. TRUSTS AND TRUSTEES — FRAUD.</p> <p>A provision in a deed of trust authorizing the trustee to sell the property at private sale does not render the deed fraudulent on its face. (p. 709.)</p> <p>2. Thusts and Trustees — Fraud—Evidence.</p> <p>When the court is called upon to decide, whether a deed is fraudulent on its face, it must decide the question on an inspection of the deed alone, (p. 715.)</p> <p>£. Trusts and Trustees — Frauds—-Intent op Grantor.</p> <p>Unless upon an inspection of a deed claimed to he fraudulent on its face the court sees, that it contains some provision, which clearly shows, that the intent of the grantor in executing the deed was to hinder, delay or defraud his creditors, the court can not hold the deed fraudulent pn its face. (p. 716.)</p> <p>4. Trusts and Trustees — -Creditors.</p> <p>Every creditor, who has "been injured, has a right to the protection of the court; and his legal rights can not he made to depend upon what any other creditor or a majority of the creditors may say or do with regard to the debtor’s property, after the preferred creditors have been satisfied, (p. 717.)</p> <p>5. Trusts and Trustees — Fraud.</p> <p>Two grantors make an assignment of their property to secure three classes of creditors, named in the deed, in the order therein named. In the deed the assets are valued by the grantors and the deed is silent as to any other creditors than those therein specified; and the value of the property, as fixed by themselves, far exceeds the amount of the debts secured; and among the property is a flouring-mill by them valued at $20,000.00, almost one half of the whole property; and the following provision is inserted in the deed : — “ And should the said trustee * * * deem it to the best interest of said creditors” (the secured creditors) “he is hereby authorized either to rent or run the mill-property * * * for the period of one or more years or for a greater or less period of time, as shall seem to him advisable after having consulted with said creditors and obtained their consent or the majority in interest herein.” — Held:—The deed is fraudulent on its face. (p. 718.)</p> <p>6. Trusts and Trustees — Fraud.</p> <p>A deed, if fraudulent as to any provision therein, is void in toto as against creditors, who are entitled to take advantage of the fraud, (p. '719.)</p> <p>7. Fraud.</p> <p>Point 2 of the syllabus in Delaplain v. Armstrong, 21 W. Va. 211, reaffirmed, (p. 720.)</p> <p>8. Trusts and Trustees — Fraud—Affidavit.</p> <p>Where an affidavit is filed, upon which an attachment is issued, and it charges, that the grantors made the assignment with ¡Intent to hinder, delay and defraud their creditors, and as “material facts” sets out the provision of the deed, in which said intent is claimed to appear, and avers, that for such inwision the deed is fraudulent on its face, the affidavit is supported hy such “material fact.” (p. 720.)</p>

<p>1. Marriage — Common-Law.</p> <p>Common-law marriages, when contracted in this State, are not recognized by our courts as valid.</p> <p>2. Marriage — Statutory.</p> <p>No marriage contracted in this State is valid, when it affirma^ tively appears that it had not been solemnized according to the requirements of our statute on that subject, although the parties may thereafter have associated and cohabited together as husband and wife.</p>

<p>1. Breach op Promise op Marriage — Statute or Limitations.-</p> <p>The statutory bar is one year in an action for damages for the’ breach of a promise to marry.</p> <p>2. Reversal op Judgment — Practice and Pleading.</p> <p>When a proper plea is offered by the defendant and rejected by the inferior court, this Court will presume, that the defendant was prejudiced thereby and reverse the judgment, unless it affirmatively appears by the record that no injury could have resulted to the defendant by such rejection of his plea.</p>

<p>1. Misnomer — Misspelling—Illegibility—Evidence.</p> <p>When on account of the misspelling or illegibility of the name of the obligee or obligor of a bond or of the maker or payee of a note it is doubtful, who the person intended is, xiarol evidence of the surrounding circumstances is admissible, so that the court may be placed as nearly as possible in the situation of the person who wrote the deed or note, and thus ascertain the person intended by the name employed.</p> <p>2. Misnojíeb — Misspelling—Illegibility.</p> <p>It is error to quash a forthcoming bond, on motion, simply because the name of the obligee therein has been misspelled or so written as to make it doubtful as to the person intended.</p>

<p>I. Appbal^-Injunotion.</p> <p>By the statute in force on the 17th of April, 1875, when the appeal in this cause was granted, there was no authority to grant an appeal from an order granting or refusing to dissolve an injunction. The appeal was therefore improvidently granted and is here dismissed.</p> <p>2. Appeal — Injunction—Changing Possession op Pbopekty.</p> <p>When one has taken forcible possession of premises, and an injunction is granted staying his hand and forbidding him] to; "do anything farther and directing him to permit the plaintiff in the injunction to cultivate the land, this is not an order “ changing the possession of the property ” within the meaning of section 1, chapter 17 of the Acts of 1872-3.</p>

<p>1. Parent and Child — Apprentice.</p> <p>The authority of a father to dispose of the custody of his minor child .in any other manner than by lawfully binding him as an apprentice or appointing for him a testamentary guardian, ceases at the túne of the father’s death, (p 762.)</p> <p>2. Parent and Child — Custody—Mother.</p> <p>A father cannot by any instrument in writing or otherwise, relinquish or surrender to another, the custody of the person of his minor child, so as to deprive the mother of such child, after the father’s death, of her right to the custody thereof, and to the care of its education, (p 762.)</p> <p>3. Parent and Child — Custody—Mother.</p> <p>As a general rule, the father during his lifetime, and after his death, the mother, is entitled to the custody of the person of their minor child, (p. 763.)</p> <p>4. Parent and Child — Custody—Mother.</p> <p>The right of the father or mother to the custody of their rqingr child, is not an ahsolnte right, to he accorded to them under all circumstances, for it may he denied to either of them, if it appears to the court, that the parent otherwise entitled to this right, “is unfit for the trust.” (p. 761.)</p> <p>5. Paeent and Child — Habeas Corpus — Custody—Mother.</p> <p>Upon the hearing of a writ of habeas corpus, sued out hy the mother after the death of her husband to obtain the custody of their minor child, and it appears from the return to the writ, or otherwise, that the mother shortly before, had, been insane, it is proper for the court or judge before whom the' same is pending-to cause such further inquiry to be made, as will enable the court to determine, whether she is fit to be entrusted With the custody of her'chiíd. (,p. 764.)</p> <p>6. Parent and Child — Habeas Corpus — Custody—Continuance.</p> <p>If upon the hearing of a Writ of habeas corpus, it is apparent that proof of an existing fact essential to a correct determination of the controversy has been omitted and, that such proof can be readily obtained, and the condition of the proceeding is such, that without injury to the opposite party the same may be done, the court should delay the final hearing thereof for a reasonable time, that proof of such material fact may be supplied, (p. 764.)</p> <p>7. Parent and Child — Apprentice—Guardian—Mother.</p> <p>In this State a minor child can only be bound as an apprentice, “by his father, or if none, by his guardian, or if neither father nor guardian, by his mother, with the consent entered of record of the County Court of the county in which the minor resides:; or without such consent, if the minor being fourteen years of age, agree in writing to be so bound; or unless such minor be found begging in such county, or is likely to become chargeable thereto;” and if not so bound, the indentures of apprenticeship! are void. (p. 760.)</p>

<p>1. Demurrer.</p> <p>Where a declaration .contains two or more counts, and there is a general demurrer to the whole declaration, and one of the counts is good, the demurrer should be overruled. To reach the count, the demurrer should be “to the declaration and each count.” (p. 769.)</p> <p>2. Demurrer.</p> <p>Whore there is a single count, which contains matter which will sustain the action, and also matter, upon which no-recovery- can be had. aud there is a demurrer to the whole count, the démurref must be overruled; but if the good and bad in the count are divisible, there should be a demurrer to such part of the count, as sets up matter, upon which there can be no legal recovery, (p. 769.)</p> <p>3. Demurrer.</p> <p>If no demurrer be taken to such bad portion of the count, the defendant may object to any evidence as to such matter, or he may move to exclude such evidence, or he may ask an instruction to the jury to disregard such evidence. If he takes neither of these courses, and there should be a general verdict agaiust him, he may move to set aside the verdict; and, if it clearly appear to the court, that the verdict wás madé excessive by the admission of such illegal evidence, the court should set aside the verdict and grant a new trial; and, if the evidence or facts are certified on writ of error, and the verdict clearly appears to the appellate court tp be excessive because of the admission of such illegal evidence, said court will disregard such evidence, reverse the judgment and set aside the verdict, (p. 773.)</p> <p>4. Mbasueh ojt Damages — Landlord akd Tenant.</p> <p>in an action for damages for the failure of the landlord to give possession of property, which has been leased, or from which he has ejected the tenant, where the gist of the action is the deprivation of the benefit of the lease, whether the action be covenant or tort, the general rule is, that the plaintiff is entitled as the measure of his damages to the difference between the rent reserved and the value of the premises for the term. He may also recover such special damages, as have been directly and necessarily occasioned by the defendant’s wrongful act or défault, but can not recover, what he might have made on the premises during the lease, nor for loss sustained by the selling of his stock, agricultural implements &c. for less than their value, (pp. 770, 771.)</p> <p>5. Plea in Abatement — When Piled.</p> <p>A plea in abatement, that another action is pending for the same matter, must under the statute be filed at rules. (775.)</p> <p>6. Estoppel — Injunction.</p> <p>Where one obtained an injunction to restrain a trespass and declared in his bill, that the defendant was a sole trespasser, and af-terwards brought his action against his landlord for committing the trespass and dispossessing him of the property, which he claimed to have leased from said landlord, a plea of estoppel to deny in the second action, what he had claimed in the first, is bad and properly rejected, (pp. 775, 776.)</p> <p>7. Evidence — Record.</p> <p>In the second action the record in the first is not admissible except such portions, as may coutradict the evidence of the plaintiff in the record, (p. 776.) "</p>

<p>Hew Trial — Motion for in Court Below — Waiver.</p> <p>Where exceptions are taken, during the trial to the judgment of the court in giving or refusing to give instructions to the jury or in admitting or rejecting evidence, unless a motion is made in the trial-court to set aside the verdict, and that motion is overruled, the appellate court will regard sueh exceptions as waived and will not review the rulings.</p>

<p>1. Attachment — Affidavit.</p> <p>Where an affidavit for an attachment contains two grounds for the attachment, one good and the other bad, it is sufficient.</p> <p>2. Attachment — Affidavit.</p> <p>In an attachment at law for a debt under chap. 38, Acts of 1885, it is not necessary, that the affidavit shall in express terms state, that the “debt is duebut it will be sufficient in this respéet, if it state “the amount at the least, which, the affiant believes, the plaintiff is justly entitled to recover in the aetion.”</p> <p>3. Attachment — Affidavit.</p> <p>The affidavit may be made by “any credible person” and need not state, that affiant is a “credible person,” as that will be presumed, until the contrary appears.</p>

<p>(The syllabus in this case is the same as that in the preceding case.)</p>

<p>1.- Wills — Construction.-</p> <p>When the language of the testator is plain and his meaning' clear, the courts can do nothing but carry out the will of-the tes-, tator, if it be not inconsistent with some rule of law. (p. 778.)</p> <p>2. Wills — Construction.</p> <p>In the interpretation of a will, the true enquiry is, not what the testator meant to express, but what do the words used' express. (p. 788.)</p> <p>8. Wills — Construction.</p> <p>When the will affords no satisfactory clue to the real intentions of the testator, the court must from necessity resort to legal prer sumptions and rules of construction. But such rules yield to the intention of the testator apparent in the will, and have no application when the intention thus appears, (p. 778.)</p> <p>4. Wills — Construction—Evidence.</p> <p>To aid in ascertaining the true construction of the will, evidence may be received of any facts known to the testator which may . reasonably be supposed to have influenced him in the disposition of his property. But parol evidence of the intention? of the testator is admissible oníy in cases when there is a.latent ambiguity. (p. 778.)</p> <p>8v Wills— Voluntas Statpro Ratione. •</p> <p>When a testator has the legal capacity to make a will, he has the legal right to make an unequal, unjust or unreasonable will. Vo-luntas statpro ratione. (p. 790.) ,</p> <p>6. Wills — Devisees.</p> <p>The rule, that when a devisee, whose estate is undefined, is directed to pay the testator’s debts or legacies, he takes an estate in fee, has no application where the estate of the devisee is defined and fixed by the will. (p. 793.)</p> <p>7. Wills — Legacy—Intekest.</p> <p>It is an undisputed general rule, that, although a legacy vests, where no special intention to the contrary appears, at the death of the testator, it. does not begin to carry interest until a year after-' wards. But wheie the legacy is charged solely on land or given to a child and directed to he paid by a devisee of land in order to make the portion of such child equal that of the devisee of the land it should bear interest from the date of the death of the tes-" tator. (p. 793.)</p>

Statement of the case by Gkeen, J ubgb : On September 6,1873, Benjamin McCoy filed his bill in the Circuit Court of Barbour county against Addison McCoy and -McCoy, children and heirs of Lucinda Rex-roade, and also against Addison McCoy as administrator of said Lucinda Bexroade.