Volume 30 — West Virginia Reports

<p>1. Equity-Pleading — Multifabiousnbss—Alternate Relief.</p> <p>A bill in chancery is not multifarious and therefore demurrable, simply because it contains a prayer for alternate relief inconsistent with its prayer for specific relief, (p. 6.)</p> <p>2. Rescission of Contract — Fraud—Mental Capacity.</p> <p>While the courts may set aside contracts made by persons of great mental weakness, though not amounting to absolute disqualification, when the contracts are grossly inequitable or unjust to such persons, they will not for such cause set aside valid contracts entered into by parties fully competent to contract, (p. 7.)</p> <p>3. Compromise — Conclusiveness.</p> <p>Where a compromise, of a doubtful right is fairly made between parties, it is binding and cannot be affected by any subsequent investigation or result; and this is so, whether it is a compromise of a doubtful question of law or fact. (p. 9.)</p> <p>4. CONTRACT — For Support — Interpretation.</p> <p>When a father and mother enter into a contract with their son, whereby they sell to the son a small farm, and as a part of the-consideration therefor the son agrees to comfortably support his parents during their lives; and the contract stipulates that it is expressly understood by all the parties, that the parents are to reside on the farm and occupy1 a portion of the dwelling-house, and the son another portion of the house, and that the son is to keep-his parents in “ eating at his own table the same as he has for himself.” Held :</p> <p>That the son is bound to comfortably support his- parents at the’ dwelling-house on the farm, and not elsewhere, (p. 12.)</p>

Statement of the case by GreeN, Judge : This was a motion under section 5 of chapter 121 of the Code as amended by chapter 74 of the acts of 1882 for a judgment for so much money, as the plaintiff, Caroline A.. Shep-berd, was entitled to recover by action on a sheriff’s bond of Richard A. Brown, sheriff of Hancock county, executed by him with George Brown, Jonathan Allison, John L. Miller, William A. Jones, David Pugh and Jacob N. Brown, the last of whom had died.

Statement of the case by GkbbN, Judge: This was an action for a forcible and unlawful entry and detainer brought by Donald Franklin against Thomas M. Gelio in the Circuit Court of Marshall county to recover the possession of a parcel of land thus described in the summons: “90 poles situated in Liberty district, Marshall county, West Virginia, bounded as follows : Beginning at the road, where the posts lately set for fence commences; thence with the same N. 28° E. 4f poles to…

Statement of the case by GreeN, Judge : This was an action of assumpsit brought in the county of Soane by a corporation, the Greenbrier Lumber Company, against James T. Ward and P. G. Cunningham, late partners doing business under the name of Ward & Cunningham.

<p>1. Appeal — FROM Justice’s Court — Trial de Novo.</p> <p>No fact tried in a civil action by a jury of six persons before a justice can be re-tried de novo by the Circuit Court, or otherwise than according to the rules of the common law.</p> <p>2. Writ oe Error — Objection not Taken.</p> <p>This Court will entertain a writ of error to and reverse a judgment of the Circuit Court in such case, although no objection was made to the jurisdiction of the Circuit Court in that Court.</p>

Statement of the case by Green, Judge: J. E. Erwin and tL. C. Poteet, voters, tax-payers and property-holders of the town of Barboursville, Cabell county, for themselves and all othdr voters, tax-payers and property-holders of such town, who would join therein, on February 11,1887, presented their petition to the judge of the Circuit Court of Cabell county praying a writ of mandamus against the commissioners of the County Court of said county, viz.: George W. Hackworth,…

<p>1. OFFICER DE JURE — EXCLUSION FROM OFFICE — RECOVERY OF DAMAGES.</p> <p>A de jure officer, who has been excluded from his office by a person not legally entitled to it, may, in an action on the case, recover from such person for the injury sustained by such exclusion. (p. 97.)</p> <p>2. Officer de Jure — Fees of Office.</p> <p>Where a person exercised the duties of the office of sheriff under an apparent claim of right, and it was subsequently j udicially determined that the office did not belong to him, the rightful officer may recover from such person the fees and perquisites received by him while in office, after deducting the necessary expenses of earning them. (p. 98.)</p> <p>8. Officer de Jure — 'Limitation.</p> <p>In such case, if the action is brought more than live years after the intrusion commenced, but within loss than that time before it ended, the plaintiff cannot recover for the profits of the office, received more than five years before, but may for those received within that period, (p. 99.)</p>

<p>Indictment — Sufficiency—Statutoky Offence. •</p> <p>An indictment under our statute (section 14, c. 145, Code), wliich charges the accused with the larceny of “ one gelding horse, of the price of $100,” instead of one gelding horse of the value of $100, according to the words of the statute, is sufficient. The word “price,” as used here, is equivalent to the word “ value,” used in that statute.</p>

This was an action of detinue* commenced by Telitha Y, Lowther against Dexter Lowther, before a justice of the peace of Harrison county, for the recovery of a mare and colt, and damages for their detention, or for $250:00, the alternative value thereof. The case was tried and judgment rendered in favor of the plaintiff, for the mare and colt described in the summons, and the costs.

Statement of the case by Woods, Judge : This is an action of debt in the Circuit Court of Gilmer county, in the name of the State of West Virginia, suing for the use of said county, against Samuel L. Hays, its late sheriff, and other defendants, who were his sureties on his official bond, to recover certain moneys alleged to be due the county from Hays, which, as such, sheriff, he received and failed to account for.

<p>1. MULTIPARIOUSNESS.</p> <p>A bill will not be held multifarious by reason of an improper charge, which charge does not set up an independent cause of action, (p. 182.)</p> <p>2. Pleading.</p> <p>A general charge' of fraud in a bill will not be sufficient to put the defendant to his answer. The facts, which, it is alleged, constitute the fraud, must be set out; and they must, if true, make out the charge, (p. 133.)</p> <p>3. CORPORATION.</p> <p>An insolvent corporation having' ceased to do business has the same power, as an insolvent individual, to prefer a creditor in a general assignment of all its property for the payment of its debts, (p. 134.)</p> <p>4. Corporation.</p> <p>Where there was a decision in Virginia seventeen years before the formation of this State holding, that an insolvent corporation having ceased to do business could prefer creditors, and at the time of such decision a statute was in existence in Virginia, not applicable to the case decided, which denied to a mining or manufacturing corporation the right to make any incumbrance preferring a creditor, and such statute continued until 1803, after the formation of this State, when it was repealed by implication, and there has been no statute in force in this State for twenty four years denying such right to a corporation, the law, as then settled in Virginia, is the law of this State, and it can not be chauged except by the Legislature. The decision then rendered has become a rule governing property; and' it is not in the power of the courts to change it. (p. 142.)</p> <p>5. Corporation.</p> <p>There is nothing in the policy of our statutes, which forbids an insolvent corporation to prefer creditors, (p. 14-2.)</p> <p>0. Corporation.</p> <p>Where the whole scheme of a bill is to set aside trust-deeds executed by a corporation on grounds not recognized in law, and to distribute the proceeds of the property among the creditors pro rata, and there is also a charge in the bill, that the trustees have unreasonably delayed the execution of the trust, and that the property is wasting, and no charge, that the plaintiff ever demanded a sale of the property, and the bill alleges, that the property will not pay the several creditors under the trust, this charge under the circumstances is not sufficient to justify the taking of the property out of the hands of the trustees and the putting of it into the hands of a receiver, (p. 145.)</p>

Statement of the case by Woods, Judge : This is the sequel of the case of Moore v. Ligón, decided by this Court in October, 1883, reported in 22 W. Ya. 292-302.

Statement of the case by Green, Judge : This is a chancery-suit instituted in January, 1886, in the Circuit Court of J efferson county by J. Garland Hurst and Eugene Baker, owners of a majority of the stock in the Shan-nondale Springs Company in Jefferson county, to dissolve this corporation, if not already dissolved, sell its property and distribute the proceeds among the stockholders ratably, it owing no debts.

<p>1. Will — Legacy—Condition in Bestraint of Marriage.</p> <p>A bequest upon condition, that the legatee shall'remain unmarried, until she becomes 21 years of age, is not such a restraint upon marriage, as will make the condition void. (p. 173.)</p> <p>2. Will — CONSTRUCTION—Conditions.</p> <p>There are no technical appropriate words, which always determine a devise to be on a condition either precedent or subsquent. If the language employed in the will shows, that the act, on which the estate depends, must he performed before the estate can vestf the condition is precedent, (p. 174.)</p> <p>3. Will — Conditions in Terrorem.</p> <p>The doctrine of conditions in terrorem over the legatee applies only, where the conditions relate to marriage or contesting a will, (p. 174.)</p> <p>4. Will — Lug act — Condition—Breach.</p> <p>Where the testator provided in his will, that if a girl, 18 years of age, who was at that time, and had been for several years, living in his family, should remain with his family, until she should attain 21 years of age, and continue to conduct herself, as she had theretofore done, then his executor should pay her $300.00 when she became of age;, and two years before she became 21 years of age she had an illegitimate child, and at the request of the testator’s widow left the family, soon after she had the child — Held : The legatee was not entitled to be paid the legacy.</p>

<p>1. FORFEITURE — TAXATION.</p> <p>Courts do not favor a forfeiture, and require strict proof of the act or omission upon which it is claimed, (p. 1780</p> <p>2. Forfeiture — Taxation—Sale—Eight to Bedeem.</p> <p>In a suit by the person assessed with taxes for land, against the purchaser of such land for taxes, to set aside a tax deed to such purchaser, the latter can not, in such suit, controvert the right of the person so charged with taxes for which the land was sold to redeem the land. (p. 179.)</p> <p>3. Forfeiture — Taxation—Powers of Attorney — Extent of.</p> <p>A power of attorney by the owner of lapd, appointing the attorney to “protect all his interests in and title to the land,” is sufficient authority for the attorney to redeem the land for the owner from the purchaser thereof at a sale for delinquent taxes, (p. 179.)</p> <p>4. Forfeiture — Taxation—Sale—Bedbmption—Tender.</p> <p>The owner of a tract of land sold for taxes, appointed the clerk of the County Court in which the land is situate his attorney to redeem the same from the purchaser at the tax-sale. The clerk, as such attorney, drew his personal check payable to the order of the purchaser for the amount of the purchase-money, for which the land was sold, with the interest accrued thereon, and sent it by mail to the purchaser, who received it within one year from the date of the sale, and returned it with the following note: “Dear Sir : I can not accept this and release the land; will see you soon.” Subsequently the purchaser obtained from said clerk a tax deed for the land. In a suit brought by the owner to have said deed cancelled, in which there was no evidence to show that he had paid anything more on the land than what was covered by the amount specified in the check, held: (1) The receipt of said check was, under the circumstances, equivalent to a tender of the amount therein specified, and operated as a redemption of the land. — (2) It was not essential to the perfection of the owner’s right to redeem that he should pay the amount so tendered to the clerk, and obtain his official receipt therefor, (p. 179.)</p>

<p>Fraud — Conveyance—Undue Influence — Action to Set. Aside. An aunt, by deed conveyed to her nephew, who was at the time, and had been for many years, living in her family, and managing her farm and other business affairs, her whole estate, real and personal, subject to her life-estate therein. Upon a bill filed by the grantor to set aside said deed after the death of the grantee, and nearly five years after its date, upon the ground, that, by the misrepresentation and fraud of the grantee, the grantor was induced to execute a different instrument from that she believed she was executing, the plaintiff failed to prove, that there was any such misrepresentation or fraud, or that the contents of the deed were not such as she intended — Held :</p> <p>I. Such deed will not be set aside for the alleged fraud.- (p. 188.)</p> <p>II. £Tor were the grantor and grantee placed in such a fiduciary or confidential relation to each other as would entitle the grantor to have the deed annulled at her mere volition or pleasure; (p. 185.)</p> <p>III. And especially would a court of equity refuse to grant relief in such case, after ■ such unexplained delay in bringing her suit.</p>

<p>1. CERTIORARI — TO PERFECT APPEAL — TRANSCRIPT.</p> <p>Under some circumstances, this Court will on its own motion award a certiorari, where it affirmatively appears that important parts of the record have been omitted from the transcript; but as a general rule it will not do so, where by the failure or neglect of the appellant the transcript is too imperfect to show affirmatively the facts constituting the grounds of the errors, on which the appellant relies in his petition for the appeal, (p. 192.)</p> <p>2. VENDOR AND VENDEE — UNPAID PURCHASE MONEY.</p> <p>Where a vendor, "by an executory contract, sells land on credit, and places the vendee in possession, the vendee, without obtaining the legal title from his vendor, or paying all his purchase money, then sells and conveys the land by absolute deed, and collects all the purchase money due from his vendee, held, in a suit by the first vendee, he may subject the land to sale for the unpaid purchase money due to him, notwithstanding the second vendee has paid all he agreed to pay for the land, and received an absolute deed for it from his vendor, (p. 193.)</p> <p>3. Laches — In Prosecuting Suit.</p> <p>Delay and laches in the prosecution of a suit, after it has been commenced, are not generally matters of which the defendant can complain or avail himself, where the record fails to show that he made any effort in the court below to expedite the cause, (p. 194.)</p>

<p>1. Statute of Limitation's — Bunning of Statute — Exceptions.</p> <p>When an action has accrued to a party capable of suing the statute of limitations begins to run against the party who may be sued, unless this be prevented by the cause coming Within some exception to the statute; and after it has begun to run its running is not suspended because of the subsequent death of either of the parties, or because of the lapse of time before either has a personal representative. (p. 197.)</p> <p>a. Statute of Limitations — Bunning of Statute — Exceptions— Jun GMENT — Be VIVO».</p> <p>In no event can a judgment be revived, under our statute, (section 11, c-h. 139, Code.) after ten-years have elapsed from the return-day of the last execution issued thereon, and, if more than five years of that period elapse during the life of the execution-debtor, then the creditor has only the remainder of the ten years, within • which to revive the judgment against the personal representative •of such debtor, (p. 197-.)</p>

<p>1. CHANCERY PRACTICE.</p> <p>A suit in equity can not be brought in the name of one party for the use of another.</p> <p>2. Chancery Practice — Parties.</p> <p>Where a judgment at law was recovered in the name of A. for the use of B. and afterwards A. brought a chancery suit in his own name for the use of B., the judgment creditor, and B. was not a party to the suit, and a decree was rendered enforcing said judgment-lien, it was reversed for want of proper parties and remanded for such proper parties to be made.</p>

<p>Fraudulent Conveyance.</p> <p>In accordance with tbe well settled law in this State a deed held1, fraudulent as to a judgment-creditor.</p>

<p>1. Marshalling Assists — Creditor and Debtor,</p> <p>A creditor, wlio has two funds open to him, while another creditor has but one, should not take the latter Without placing the fund, which is exclusively within his reach, at the disposal of the creditor, whom he has deprived of the means of payment. (p> 207.)</p> <p>2. Marshalling Assets — Creditor and Debtor,</p> <p>The creditor can not he delayed in the collection of his claim and may take the fund most easily attainable but on condition, that the creditor, who lias been prevented from resorting to that fund for payment of his claim, takes his place with reference to the other fund. (p> 209.)</p> <p>3. Marshalling Assets — Creditor and Debtor.</p> <p>W. owed H. $1,055.00 and executed a deed of trust to secure it. At about the same time W. owed O. and X. $1,600.00 and also held a chose in action for that sum against H,, which he assigned to C. and X. to secure them. In W.’s name they sued H. for the amount and recovered judgment and sued Out execution. II. thereupon filed a bill of injunction alleging the insolvency of W-. and tern tiered to C. and X. the difference between the $1,600.00 and the $1,055.00 and prayed that the plaintiff in the execution, after this set-oif was made, might he perpetually enjoined. The defendants C. and X. answered the bill, resisted the set-off and showed, that W. had executed a deed of trust to secure H. the $1,055.00, and that W. was insolvent, and prayed, if the set-off was allowed, to he subrogated to the rights of H. in the deed of trust. The court perpetuated the injunction hut did not decree the subrogation asked. On appeal, Held :</p> <p>The set-off was properly allowed because H. could not he delayed in the collection of his debt. (i). 210.)</p>

<p>ADMINISTRATION.</p> <p>By sec. 4 of chap. 85 of the Code, the husband or wife of a decedent is within thirty days after the death of said decedent first entitled to administer on the estate. If neither of them does so, then either of the distributees of the estate may administer thereon, (p. 219.)</p> <p>2. Administration.</p> <p>As between distributees the County Court must judge as to fitness for the trust and should exercise a sound discretion in the interest of all the distributees, (p. 219.)</p> <p>3. Administration.</p> <p>After the expiration of the thirty days wider discretion is vested in the court; and it may appoint a creditor or a stranger, if no distributee applies; but if a suitable one then applies, he is entitled to the preference, (p. 219.)</p> <p>4. Administration.</p> <p>4. While non-residence does not amount to disability, yet the courts in the exercise of a sound discretion should not appoint a non-resident distributee administrator, so long as any other distrib-utees competent to act and willing to assume the trusts are within the jurisdiction of the court; and after the thirty days from the death of the decedent has expired, the court under ordinary circumstances should prefer a resident, who is not a distributee, to a non-resident distributee, (p. 221.)</p> <p>5. ADMINISTRATION.</p> <p>If one of the distributees applying is hostile to the others or a part of them, this will ordinarily be sufficient to justify the court in refusing to appoint him. (p. 221.)</p> <p>6. Administration.</p> <p>6. In vacation more than three months after the death of the decedent two of the distributees, who were non-residents of the State, applied to the cleric of the County Court to be appointed administrators of the decedent’s estate; they were appointed and executed the bond; the cleric under the statute reported his action to the County Court at its next term, at which a resident distributee appeared and filed objections to the confirmation of the appointment and then applied himself to be appointed; the court- refused to confirm the non-resident applicants and on motion of the latter committed the estate to the sheriff of the county for administration. On appeal to this court the order was affirmed, (p. 222.)</p>

<p>1. Suggestion.</p> <p>Where under our statute .a suggestion is issued, it is unnecessary that any other person than the one designated as indebted to or holding effects of the judgment-debtor should be summoned, (p. 225.)'</p> <p>2. Suggestion.</p> <p>Where a suggestion is issued, and the garnishee has answered, and it is suggested to the court, that he has not fully disclosed his indebtedness, the court will under the provisions of the statute impanel a jury without formal pleadings to inquire, whether the garnishee at the time, the suggestion was served on him, was indebted to the judgment-debtor, and in what amount, if any. (p. 225.)</p> <p>1. Suggestion — Markus» Woman — -Separate Estate.</p> <p>Upon the trial of such a question it was proper, that being an action at law, to instruct the jury, that, if they believed from the evidence, that if a married woman, who claimed, that the garnishee owed the fund to her and not to the judgment-debtor, had no separate estate, and there was no marriage-settlement or contract, and who claimed, that the money was earned by her while living with her husband and in part acquired by her by raising cattle on her husband’s farm and selling them, and that another part was given to her by her son, all before the adoption of the Code of 1868, which provides for separate estates of married women, the money so received by her was the property of her husband, (p. 226.)</p> <p>4. Suggestion — Mabkied Woman — Sep abate Estate.</p> <p>In this case, even if the married woman had had a separate estate, and money of her own, the jury from the evidence were justified in rendering the verdict; and it should not have been set aside, (p. 228.)</p>

Statement of the case by Woods. Judge : This is an action brought in the Circuit Court of Ohio county by Frank P. Nuzum, administrator of George Bunfill, for the use of his widow and only child, against the Pittsburgh, Cincinnati & St. Louis Railway Company, for the recovery of damages for causing the death of plaintiff’s intestate by the negligence of the defendant’s servants and agents. The declaration contains three counts.

<p>1. GUARDIAN AND WARD — SETTLEMENT OR ACCOUNTS — SUBMISSION TO Jury — Be-examination.</p> <p>The accounts of a guardian are, under the provisions of chapter 234, Acts 1872-73, settled before a commissioner of the County Court, who reports a balance due from the guardian to his ward, the guardian excepts to the report, and the questions raised by the exceptions are submitted by the court to a jury, which finds against the exceptor; the court approves said finding', confirms the report, and orders the same to be recorded by its clerk. Held :</p> <p>I. The verdict of the jury in such proceedings does not come within the purview and protection of section 13, art. 3, of the Constitution of this State, (p. 246.)</p> <p>IT. Guardian and Ward — Settlement oe Accounts — Submission to Jury — Re-examination.</p> <p>Such report is ex parte, and when assailed, can only he treated as prima facie correct, (p. 246.)</p> <p>TIT. Guardian and Ward — Settlement oe Accounts — Submission to Jury — Re-examination.</p> <p>In a suit subsequently brought by the ward to have the accounts of the guardian settled, and to obtain a decree against the guardian for the amount due the ward, it is error for the court, in an order of reference, to direct the commissioner to take as the basis of his report the amount found to be due the ward in such ex parte settlement, and deny the guardian the right to surcharge and falsify said settlement, if he seeks to do so in a proper and legal manner, (p. 247.)</p>

Statement by GreeN, Judge : This was a chancery suit, brought in May, 1885, in the Circuit Court of Ritchie county, by Sisson Shaffer against Ruth A. Fetty.

Statement of the case by Green, Judge : The defendant, Henry S. Hallwood, claimed that about ■January 1, 1882, he purchased of George Straughan, the plaintiff’s father, a theodolite and a part of a set of drawing instruments. Mathew H. Straughan claimed that this property all belonged to him, and he brought a suit for it against Henry S. Hallwood before a justice of the county of Ka-nawha, where Hallwood resided.

<p>1. Judgment by Default — ASCERTAINMENT op Damages — Justice oe the Peace.</p> <p>According to the common law, as recognized and settled in this State, there can be no final judgment by default in any action at law sounding in damages in the absence of a writ of inquiry either in the Circuit Court or before a justice, when the value in controversy or the damages claimed exceeds $20, and the right of either party, if he demands it, to have such writ executed by a jury, is guaranteed by our Constitution, (p. 298.)</p> <p>2. Judgment by Default — Justice of the Peace — Trial de novo on Appeal.</p> <p>The judgment of a justice rendered upon the verdict of six jurors in an action for damages, in which no defense was made by the defendant, can not be tried de novo by the Circuit Court upon appeal, (p. 29S.)</p>

<p>Ai’I’eal — Justice 01? the Peace — Teial de Novo.</p> <p>The judgment of a justice upon the verdict of a jury, in an action sounding in damages, to which the defendant declined to appear or plead, cannot be tried de novo by the Circuit Court upon appeal.</p>

<p>1. Appeal — Justice op the Peace — Review by Circuit Court.</p> <p>Under the provisions of chapter 110, Amended Code, the Circuit Court has jurisdiction to review the judgment of a justice rendered upon the verdict of a jury by a writ of certiorari, (id. 330.)</p> <p>2. Justice oe the Peace — Practice—Quashing Summons.</p> <p>If the summons in a ease before a justice states a legal cause of action and is in other respects sufficient, the justice ought not to quash it, simply because it states two or more causes of action, (p. 334.)</p>

<p>1. VENDOR AND VENDEE — -SPECIFIC PERFORMANCE — DEFECT IN TlTLE Purchase-Money.</p> <p>Equity will not require a vendee, wbo has purchased by writing requiring deed of general warranty, to pay all the purchase-money, when a part of the land sold is claimed by others, and the title thereto is defective. If the purchaser can show clearly that the title is defective, equity will not .require him to pay the purchase-money until such defect is removed, or a proper abatement is decreed, if the vendee insists on having as much as he can have under good title, (p. 345,)</p> <p>2. Vendor and Vendee — Sfecific Performance— Purciiase-Money.</p> <p>Where a vendor flies his bill to subject land for the payment of the purchase-money, and the vendee answers and says that several portions of the land are held by others, naming them, by title paramount, and shows, in his answer, that the grounds on which such third persons claim portions of said land are such as will put a reasonable man in just apprehension of losing- his land, the plaintiff, if he does not concede this, must amend his bill, and set out specifically all the facts within his knowledge with reference to the claim of such third parties; and if he insists his own title is good, and the land is his, then he must make such third parties whose claims he disputes defendants to the bill, so that a proper decree maybe entered, protecting the rights of all parties interested. (p. 346.)</p>

<p>1. Tax Sale — RedemptioN—Notice—Tender.</p> <p>A purchaser of lands at a sale thereof, made by the sheriff for delinquent taxes, filed in the Circuit Court of the proper county, the notice prescribed by section 16, ch. 31, Code, against a party who within one year from the date of such sale, redeemed said lands by paying to the clerk of the County Court, a sum of money sufficient for that purpose, disputing his right to redeem, and requiring him to appear on a given day before the Circuit Court of the county, and prove his right to redeem. Said:</p> <p>I. It was immaterial whether the clerk received the sum of money specified in his official receipt in lawful currency or in “legal-tender money.” (p. 361.)</p> <p>II. Where such clerk has received from the party offering to redeem such land the money so offered, and given his official receipt therefor, he becomes responsible upon his official bond for the money specified in his receipt, and must account for it as money to the party ultimately entitled to receive it. (p. 361.)</p> <p>III. Whether the act of the party paying to the clerk of the County Court the sum of money specified in his official receipt has, operated as a redemption of the land or not is a question of law to be decided by tlie Court when the same shall properly arise, (p. 352.)</p> <p>IV. The only question properly arising on the trial of such a notice is whether the party so redeeming- the land had the right to do so. (p. 353.)</p> <p>2. Taxation — Redemption—Authobity as Agent.</p> <p>Six tracts of land assessed with taxes in the name of H., who was the owner thereof, and returned delinquent for the non-payment thereof, were purchased at a sale thereof, made by the sheriff, by E. and R. Before the lands were sold, H. had conveyed two of said tracts to a trustee, to indemnify and save harmless S., as the surety of I-I. in three notes of $1,204.27 each, all of which remained unpaid. Seven months after said sale, I-I. and S. entered into a contract, under seal, whereby, in consideration of $1,250.00 'to be xiaid by S., H. sold to him all the timber of a certain character growing on the remaining four of said six tracts, with the right to enter and remove the same at any time within four years after the date of said contract; and whereby it was further agreed that S., out of the x>rice to be paid for the timber, should apply $200.00, or so much thereof as might be necessary, in redemption cf said last-named four tracts, which had been sold for taxes. Held :</p> <p>I. S., in his capacity as agent for H., was authorized to redeem said last-named four tracts of land. (p. 354.)</p> <p>II. S., in his cax>acity of owner of a beneficial interest • therein, acquired by his said contract with II., whereby he bought said timber, was entitled to redeem said four tracts of land. (p. 356.)</p> <p>III. In his capacity of beneficiary in said deed of trust, he was entitled to redeem said two tracts of 286 and 112 acres of laud. (p. 356.)</p>

<p>1. Homestead — Constitutional Power — Power oe Legislature.</p> <p>The people in their Constitution, as far as future debts may affect it, have the light to provide for any sort of a,-homestead, guarded as they please; subject to or without restrictions; to prohibit the owner of the homestead from incumbering it, or to permit it to be done; and, unrestricted by the Constitution, the Legislature has the same power, (p. 376.)</p> <p>2. Homestead — Conveyance of.</p> <p>Where there is neither constitutional nor statutory prohibition, as incident to the right of ownership, the owner of the homestead may sell or incumber it; and such sale or incumbrance will be as valid as if the property had not been set apart as a homestead, (p. 368, 376.)</p> <p>3. Homestead — Conveyance of — Exemption From Forced Sale.</p> <p>The sale of a homestead under a deed of trust, or under a decree of foreclosure of mortgage thereon, is not a “ forced sale,” within the meaning of the Constitution, which exempts a homestead from a “ forced sale. ” (p. 373, 377.)</p> <p>4. Homestead — Conveyance of — -Deed of Trust.</p> <p>Under the Constitution of this State, and Acts 1872-73, ch. 193, the owner of the homestead set apart under the statute may execute a valid deed of trust on such homestead, (p. 378.)</p> <p>5. Judicial Sales — Confirmation by Court.</p> <p>It is difficult to lay down a general rule as to when a court will or will not refuse to confirm a judicial sale, as its exercise of discretion in this matter must in a great measure dejjend upon the circumstances of each case. (p. 380.)</p> <p>6. Judicial Sales — Confirmation—Inadequacy of Price.</p> <p>Where there had been two sales of real property, — one under a deed of trust, and the other at a judicial sale, — made not far from each other in point of time, both sales at $2,000.00, and affidavits were filed, stating that the property was worth, at the time affidavits were taken, from $3,000.00 to $3,500.00, and “ affiants believed that in the near future said property could be sold for an advance of from $500.00 to $1,000.00 over the price of $2,000.00 for which it sold, and another affidavit showed it sold for a fair price, this Court refused, on the mere ground of inadequacy, to set aside the sale. (p. 381.)</p> <p>7. Appeal — Harmless Error.</p> <p>The appellate court will not reverse a decree unless it is to the prejudice of the appellant, (p. 381.)</p>

<p>1. INDICTMENT — LIMITATION OP ACTIONS — CRIMINAL PROSECUTION.</p> <p>If an indictment for an offence, the prosecution of which is by statute, limited to a certain time after the offence was committed, shows upon its face, that at the time the indictment was found, the prosecution of the offence was barred by such statute, it is fatally defective, and the defendant may take advantage of such defect by motion to quash the indictment, or by demurrer thereto, or by motion in arrest of judgment, (p. 387.)</p> <p>2. Indictment — Limitation op Actions — Criminal Prosecution.</p> <p>An indictment found on the eighth day of April, 1881, for adultery aifd fornication, which charged the defendant with committing the offence on the tenth day of March, 1883, upon general demurrer thereto, is fatally defective, (p. 388.)</p> <p>3. Indictment — Requisites op.</p> <p>Every indictment must show upon its face that some public law of the State has been violated, and that the offender has been indicted therefor, in the manner and within the time prescribed by the law of the land. (pp. 385-G.)</p> <p>4. Indictment — DemuRRBR to — Objections Brought up.</p> <p>Where a party is indicted in this State he may demur to the indictment, and upon such demurrer, take advantage of all defects therein to the same extent he may do hy motion in arrest of judgment. (p. 388.)</p> <p>' 5. Indictment — Detects—Objections, how'Baised.</p> <p>Where an indictment is so defective that any judgment thereon rendered against the defendant would he erroneous, he may take advantage of such defect hy motion to quash the indictment, or hy demurrer thereto, or hy motion in arrest of judgment, (p. 388.)</p> <p>6. Indictment.</p> <p>While the motion in arrest of judgment has, hy section 11 of chapter 158 of the Code, been rendered less effectual than it was at common law, yet the remedy hy demurrer to the indictment remains unimpaired, and may he resorted to in all cases where the defendant is entitled to move in arrest of judgment, (pp. 387-8.)</p> <p>7. Indictment — Appeal—Presumption—Change in Date of Indictment.</p> <p>Where an original indictment is brought before the appellate court, and it appears upon inspection thereof that the date of the year in which the offence is charged to have been committed, has been changed, the appellate court, in the absence of anything in the record to show when the change was made, will presume that, it was made before the finding of the indictment, (p. 384.)</p>

No appearance for appellee. Statement of the case by GkeeN, Judge : This was a chancery suit brought by Bryan Gainer in the Circuit Court of Barbour county, in October, 1868, to enforce a vendor’s lien on land in that county of $250.00 with interest on it from April 18,1853, which he claimed was the balance due on a contract for sale of this land to George Gainer and John W. Gainer, which contract was dated April 18,1851.

<p>1. Contempt — Procedure—Criminal Character oe.</p> <p>A contempt of court is in the nature of a criminal offence, and the proceeding for its punishment is criminal in its character, (p. 413.)</p> <p>2. Contempt.</p> <p>Where a defendant in a suit in equity disobeys the process, order or decree of the court, the regular and proper proceeding for such contempt is for the plaintiff to file an affidavit setting up such fact, and to move the court to issue a rule in the cause between the original parties; and when such rule is issued, served on the defendant and returned to the court, then the contempt-proceeding should be entirely separate from the chancery suit, and placed on the docket, entitled The State of West Virginia, at the relation of the party at whose instance it was issued, against the offender, and be prosecuted on the law-side of the court to judgment; and, if the rule is made absolute, the defendant should pay the costs; and, if it is discharged, it should be at the cost of the relator. To a judgment against the offender he may obtain a writ of error, (p. 413.)</p> <p>3. Contempt.</p> <p>But if such proceeding is had on the chancery side of the court, and the order is there entered, such court has no jurisdiction, but, to reverse the order, the defendant is entitled to his writ of error, (p. 420.)</p> <p>4. Contempt — Punishment—Discretion oe Court.</p> <p>While the statute'has made all contempts criminal in their nature, and all fines imposed therefor go to the State, yet it has not attempted to take away the wise discretion of courts over the punishment for contempt, to enable them, by proper coercive measures, to compel obedience to their orders, by imprisoning at the' pleasure of the court, or “until the further order of the court;” so that, when the recalcitrant party submits, the court may release him frpni imprisonment, (p. 417.)</p> <p>5. Contempt — What Constitutes Bkgach oe Injunction.</p> <p>An injunction granted, but not to take effect or be in force until the plaintiff executes a bond, is a conditional granting of the injunction. So, where such an injunction was granted on the fourteenth of July, 1886, the bond increased on the eighteenth of August, 1886, and no bond executed until the eleventh of October, 1886; and on the twenty first of August and thirty first of the .same month, in the year 1886, acts were done which would have been contempt had the injunction been in force: held, that the injunction did not take effect until after the acts were done, and there was no breach of the injunction, consequently no contempt of the injunction order committed, (p. 427.)</p>

<p>1. Schools and School-Districts — Corporate Duties.</p> <p>Public duties are required of such corporations as counties and districts, as a part of the machinery of the State government, and, in order that they may properly perform these duties, they are invested with certain corporate powers; but their functions are wholly of a public nature, and they are at all times subject to the will of the Legislature unless restrained by the Constitution, (p. 430.)</p> <p>2. Schools and School-Districts — Division oe — Distribution oe Funds.</p> <p>Upon the division of an old public corporation, and the creation of a new one, out of a part of its inhabitants and territory, the Legislature may provide for an equitable apportionment or division of the corporate property, and impose upon the new corporation or upon the people and territory thus disannexed, the obligation to pay an equitable portion of the corporate debts, (p. 430.)</p> <p>3. Schools and School-Districts.</p> <p>Where the Legislature does not prescribe any regulation for the apportionment of the property, or that the new corporation shall pay any portion of the debt of the old, the old corporation will hold all the corporate property within its new limits, and be entitled to all the debts due the old corporation, and be responsible for all the debts of the corporation, existing before and at the time of the division; and the new corporation will hold all the corporate property falling within its boundaries, to which the old corporation will have no claim, (p. 431.)</p> <p>4. Schools and School-Districts.</p> <p>The powers exercised in the division of public corporations being purely legislative, the power to prescribe the rule by which the property of the corporation shall be divided, and the debts apportioned, being incidental to the power to divide the territory, must also be strictly legislative, and the courts have no authority over the subject, and can only construe the act of the Legislature, and see that the legislative will is carried into effect, (p. 433.)</p> <p>5. Schools and School-Districts.</p> <p>The Legislature had the right to confer its power to divide public corporations on the County Court, and though, in the act conferring such power, it gave no directions as to the apportionment of the property and debts of the old corporation, yet, as incident to the power granted, the County Court had the same power in that regard as existed in the Legislature before the act was passed ; and if such court divide a district, and, the order making such division, is silent as to the apportionment of corporate property and debts, the same result will follow as if the district had been divided by the Legislature, and the act was silent as to the apportionment of the corporate property and debts of the old corporation. (p. 433.)</p> <p>6. Schools and School-Districts.</p> <p>The County Court of Barbour, by authority vested in it by section 19, ch. 5, Acts 1881, divided the old education district of Barker, and from said territory created a new district called “Valley District,” and said order of division was silent as to the apportionment of the corporate property and debts of Barker district. At the time of,such division, Barker district owed a debt of over $1,100.00, which it paid, and filed its bill against the board of education of the new Valley district for contribution. Held, that by said order of division, Barker district held all the corporate property within its new limits, and Valley district all the corporate property within its boundaries, and the old or Barker district was entitled to all the debts due it, before and at the time of the division, and liable to pay all its debts, and had no claim on Valley district for contribution, and the decree requiring Valley district to pay a part of the debt was reversed and the bill dismissed.</p>

<p>1. Municipal Corporations — -Powers—Exclusive Privileges — Illumination.</p> <p>Neither the charter of the city of Parkersburg, nor the general statutes in relation to municipal corporations, in force in this State in 1S64, conferred upon said, city the power to delegate to a private corporation the exclusive privilege of using the streets and alleys of the city for laying gas-pipes, and furnishing the city and its inhabitants with gas for 30 years, (p. 440.)</p> <p>2. Municipal Corporations.</p> <p>The grant by a city to a gas-company of ihe exclusive privilege of lighting the city with gas does not deprive the city of the power to contract with an electric light company for lighting the city with electric lights, (p. 442.)</p>

<p>i. Ookpoeations — Directors—Trust Deration.</p> <p>The directors of a corporation occupy the relation of trustees to such corporation and its property, (p. 451.)</p> <p>2. CORPORATIONS. '</p> <p>"Where the board of directors of an insolvent corporation ordered the conveyance of all the property, real and personal, of the corporation, to secure a large debt due from it to another corporation, at a meeting- in which one or more of such directors who participated and voted for the resolution authorizing the conveyance were also directors of the corporatian for whose benefit the conveyance was made, held, the conveyance made by virtue of such order is prima facie fradulent and void, not only as to the grantor and its stockholders, but also as to its creditors, and will be so declared unless it is shown on behalf of the corporation thus secured, 'by clear and convincing proof, that such conveyance was fair and reasonable, and absolutely free from fraud, (p. 453.)</p> <p>3. Fraudulent Conveyances — Effect of Setting Aside — Lien of Creditors.</p> <p>General creditors who, by bill, answers, or petition, assail a deed of their debtor conveying land as fraudulent, and succeed, have a lien on the land for their respective debts from the filing of such bill, answer or petition, (p. 455.)</p>

Statement of the case by Woods, Judue : On the seventh of September, 1885, Solomon H. Shriver in his own right and as administrator of John Hagan, Sr., deceased, filed his bill in the Circuit Court of Monongalia county, verified by his affidavit, against James L. Garrison in his own right and as guardian of Patrick, Charles L., Clara May, Kate, Mary, and John Hagans, Jr., the children and heirs at law of said decedent, all of whom were infants at the time of their father’s…

<p>1. CONSTRUCTION OF STATUTES — PROVINCE OF THE COURT AND LEGIS-TURE.</p> <p>It is the province of courts to decide what the law is, and determine its application to particular facts in the decision of causes; the province of the Legislature is to declare what the law shall be in the future, (p. 482.)</p> <p>2. Construction of Statutes — Courts.</p> <p>The courts of this State can not be empowered by the Legislature to pass upon the constitutionality or validity of a legislative act or city ordinance as a general and abstract question; the question must be whether the act or ordinance furnishes the rule to govern the particular case before the court, (pp. 482-3.)</p> <p>3. CONSTRUCTION OP STATUTES — REPEAL—LEGISLATIVE AND JUDICIAL Power.</p> <p>The power to revoke or annul a statute or ordinance is equivalent to the power to repeal it; and in either case the power is legislative, and not judicial, in its character, (p. 483.)</p> <p>4. Construction op Statutes — Circuit Court — City Ordinances. ,</p> <p>Acts W. Va. 1875, ch. 72, so far as it attempts to confer upon the Circuit Courts the power to “supersede, revoke, or annul” an ordinance of a city upon the petition of 10 tax-payers residing in said city, is unconstitutional, for the reason that such power is legislative, and therefore forbidden to he -exercised by courts in this State, (p. 487.)</p>

<p>1. Teial — Objections to Evidence — Demurrer.</p> <p>Either party may demur to the evidence in an action at law, unless the case be clearly against the demurrant, or the court entertains a reasonable doubt as to what facts should be fairly inferred from the evidence.</p> <p>2. Bounties to Soldiers — Limitation of Actions.</p> <p>Where a county, by an order of its board of supervisors, appro- . priates money to pay bounties to a certain class of'volunteer soldiers, and, after such money has become payable, one of said soldiers presents his claim to such board of supervisors for payment, and it refuses to pay him, held, the statute of limitations begins to run against such claim from the time it is so presented, and xiayment refused, and the same becomes barred at the expiration of five years from that time.</p>

<p>1. Municipal Corporations — Incorporated Towns and Villages— Powers.</p> <p>Every town, and village in this State, incorporated under the provisions of chapter 47 of the Code, or to which they apply, is a municipal corporation possessing all the powers incident to such corporations at common-law, not changed, abolished, or prohibited by statute, (p. 495.)</p> <p>2. Municipal Corporations — Incorporated Towns and Villages— Powers.</p> <p>The corporate powers of every such municipal corporation can only be exercised by the common-council thereof, or under its authority, except where otherwise provided by law. (p. 504.)</p> <p>3. Municipal Corporations — Incorporated Towns and Villages— Powers.</p> <p>The “corporate body at large” of every such incorporated town or village, in the exercise of its corporate powers, is represented by the “common-council” thereof, (p. 504.)</p> <p>4. Municipal Corporations —Amotion.</p> <p>The power to remove a corporate officer from his office is one of the common-law incidents of all corporations, (p. 404.)</p> <p>5.Municipal Corporations — Amotion.</p> <p>The common-council of the “town of Clarksburg,” in this State, being a municipal corporation, existing under its charter as amended by chapter 47 of the Code, possesses such power of amo- ■ tion, and for good cause may remove from his office the mayor of said town. (p. 504.)</p>

<p>1. HUSBAND AND WIFE — CONVEYANCE TO WIFE — SEPARATE ESTATE.</p> <p>Where, by deed, land was conveyed directly to a married woman, prior to the adoption of the Code of 1868 of this State, such conveyance did not create in her a separate estate, (p. 507.)</p> <p>2. Husband and Wiee — Conveyance to Wipe.</p> <p>Under such conveyance, the husband became entitled to a freehold estate in the land, which would continue at least during the joint lives of the husband and wife, with remainder in fee in the wife. (p. 509.)</p> <p>3. Ejectment — Title to Support.</p> <p>In actions of ejectment, where both the plaintiff and defendant derive title from the same third person, the rule is well settled that it is prima facie sufficient for the plaintiff to prove such common derivation of title, without proving that such third person had title to the land in controversy, (p. 509.)</p> <p>4. Ejectment — Evidence.</p> <p>In such ease, the plaintiff may introduce in evidence the title under which the defendant claims, without impairing his right to question the legal effect of such evidence, (p. 509.)</p> <p>5. Certificate of Acknowledgment — Married Woman.</p> <p>The fourth point in the syllabus of the case of Blair v. Sayre, 29 W. Ya. 604,2 S. E. Hep. 97, approved and reaffirmed, (p. 510-18.)</p> <p>6. Certificate of Acknowledgment.</p> <p>A certificate of the privy examination of a married woman in the following words, (omitting the descriptive portion,) and the wife, “ being examined by me [the justice] privily and apart from her husband, and having the deed aforesaid fully explained to her, she acknowledged that she had willingly signed, sealed and delivered the same, and wished not to retract it,” held to be fatally defective, because it does not show that the wife both acknowledged the deed and declared that she had willingly executed the same. (p. 511-18.)</p>

<p>1. Banks — Accounts bptwebN — Lien nor Balance.</p> <p>Where there have been, for several years, mutual and extensive dealings between, two banks, and an account current kept between them, in which they mutually credited each other with the proceeds of all negotiable paper transmitted for collection when received, and accounts were regularly transmitted from the one to the other, and settled upon these principles, and balances remitted when called for, and upon the face of the paper transmitted it always appeared to be the property of the respective banks, and the collecting bank had no notice that the transmitting bank did not own the paper, and such paper was transmitted by each of the two banks on its own account, there is a lien upon the paper thus transmitted for a general balance of account, no matter who may he the real owner of the paper, (p. 522.)</p> <p>2. Banks — Accounts between — Collections—Notice of Ownership.</p> <p>If the receiving apd collecting bank, at tfie time of the mutual dealings with the bank sending paper, had notice that snch hank had no interest in the bills or notes transmitted, and that it transmitted them for collection merely, as agent, then the collecting bank wonld not be entitled to retain, against the owner of such paper, for the general balance of the account with such bank, (p. 530.)</p> <p>3. BANKS.</p> <p>If the collecting bank had no notice that the bank, sending the remittance was merely an agent, but regarded and treated it as . the owner of the paper transmitted, yet the collecting bank is not entitled, against the real owner, unless credit was given to the bank sending the paper, or balances suffered to remain in its hauds, to be met by the negotiable paper transmitted, or expected to be transmitted in the usual courses of dealing between the two banks, (p. 530.)</p> <p>4. Banks.</p> <p>But if, in the mutual dealings between the two banks, the collecting bank regarded and treated the bank transmitting negotiable paper as the owner of such paper, which it transmitted for collection, and had no notice to the contrary, and on the credit of such remittances, made or anticipated in the usual course of dealings between them, balances were from time to time suffered to remain in the hands of the bank sending the remittances, to be met by the proceeds of such negotiable paper, then the collecting bank is entitled to retain against the real owner of the paper, for the balance of account due from the bank transmitting snch paper, (p. 530.)</p> <p>5. Banks.</p> <p>The Penn Bank and Exchange Bank had mutual and extensive dealings for years; each transmitting paper to the other for collection, collecting, and crediting the sending bank with proceeds, and from time to time settlements were made between them. On the twenty fourth day of May, 1884, the Penn Bank inclosed in a letter to the Exchange Bank, “For collection,” marked “No prin.,” the following draft: “At sight, pajr to the order of Penn Bank fifteen hundred dollars, value received, and charge to account of D. 'W.C. Carroll. To Riverside Iron-Works, Wheeling, W. Va.” The draft was indorsed : “Pay Exchange Bank or order, for account of Penn Bank, Pittsburgh, Pa. .G-. L. Keiber, Cashier.” This draft was received by the Exchange Bank on Monday morning, May 26th, at once placed to the credit of the Penn Bank, sent out by messenger for collection, and paid by the drawee at 9:30 a. m. At that time, after giving the Penn Bank credit for the $1,500 draft, it still o\yed the Exchange Bank $205,43, At 12:05 p. m. on that day the Penn Bank failed. The Exchange Bank had no other notice than as above set forth that the Penn Bank did not own the paper. D. W. C. Carroll, the real owner of the paper, brought an action of assumpsit against the Exchange Bank for amount of draft and interest, and recovered in the court below. Held, the judgment must be reversed, and judgment entered for defendant.</p>

<p>1. Judgment — Effect—Conclusiveness.</p> <p>M. recovered against C. a judgment for $41.00 with interest and costs, which for value received he assigned to E., who afterwards became indebted to C. $48.90, who, to recover the same, sued E. before a justice. E. pleaded to C.’s demand said judgment as a set-off. To this plea C. replied that E. had procured said assignment with the fraudulent intent of depriving him of his legal right to exempt $200.00 of personalty, which right he said he had claimed against M. Upon the trial of the issue on this replication, O. demanded a jury, who found in his favor a verdict for the whole of his demand. On motion of E,, this verdict was set aside, and a new trial gnpitecl. Upon this new trial, C, again demanded a jury, who found a verdict in favor of E. for $5.79, for which he had judgment, with costs. C. afterwards presented his hill of complaint to the judge of the Circuit Court setting up the foregoing facts, hut alleging no other grounds for equitable relief; praying that E. might he perpetually enjoined from collecting his judgment of $5.79, and from using said assigned judgment as a set-off against his demand of $48.90, and that he may he compelled to pay his demand of $48.90, and for general relief. E. answered the bill, and pleaded the trial and judgment as res ad-judicata; hut, upon final hearing, said judge perpetually enjoined E. from collecting his judgment of $5.79, and decreed that he pay C. the whole amount of his demand, with the costs of his injunction, and also all costs incurred by him in prosecuting his unsuccessful civil suit before the justice. Upon a petition filed by E. alleging the foregoing facts, and praying that a writ of prohibition might issue against C. and the judge, prohibiting them from proceeding in said chancery cause, it was held, that the judgment for $5.79 rendered in favor of E. by the justice upon a verdict of the jury, on said new trial, was final and irreversible, and was conclusive between the parties thereto as to all matters involved in that controversy.</p> <p>2. TRIAL — VERDICT—CONCLUSIVENESS.</p> <p>That the facts involved in the issue having been tried by a jury, can not be otherwise re-examined than according to the rules of the common law. (p. 540.)</p> <p>8. Judgment — Effect—Conclusiveness.</p> <p>That a second new trial of the cause, as well as an appeal from said judgment, being expressly prohibited by law, no new trial thereof can be had in a court of equity, (p. 543.)</p> <p>4. Prohibition, Writ of — To Prevent Enforcement of Decree.</p> <p>That it is proj>er, in such case, that a prohibition should be awarded against C. and the judge, prohibiting them from all further proceeding to enforce the said decree, (p. 546.)</p> <p>5. Prohibition, Writ of — To Prevent Enforcement of Degree.</p> <p>And, that inasmuch as it is apparent upon the face of the record that, under the circumstances of this case, the Circuit Court had no jurisdiction to grant the relief prayed for in said bill of injunction, the prohibition may be awarded as well after, as before the rendition of said decree, (pp. 545-7.)</p>

<p>Subrogation — Payment of Judgment — Subjection of Beauty— Loss of Lien — Release—Statute of Limitations.</p> <p>By an executory contract between A. and B., the former bound himself to convey to the latter, upon the payment of the purchase-money, certain real estate. Subsequently B. conveyed said real estate to C., reserving in the deed a lien to indemnify A. against certain judgments,-which B. was then primarily bound to pay; afterwards A. conveyed the legal title to said real estate to B., reserving a lien in the deed for his indemnity against said judgments ; the legal title is never conveyed to C. In a suit by A. to subject the said real estate to the payment of the amount he was compelled to pay to satisfy said judgments, held : <.</p> <p>I. A. was entitled to subject said real estate in the hands of C. to such payment.</p> <p>II. A.’s right to do so was not lost or impaired by the fact that after B. had conveyed to C. he released B. from all liability for said judgments, nor because at the time he instituted his suit said judgments had become barred by the statute of limitations, the lien of A. dejiendiug upon the instrument reserving it, and not upon said judgments.</p>

<p>1. Attachment in Equity — Fon Legal Demand — Jurisdicton.</p> <p>In September, 1883, there was no statute in this State authorizing an attachment in equity for a purely legal demand, and therefore a bill filed to enforce an attachment-lien for a demand purely legal was dismissed because the court had not jurisdiction, (p. 559.)</p> <p>2. Attachment in Equity — Jurisdiction'—Amended Bill.</p> <p>If the court had no jurisdiction when the bill was filed, it could not be conferred by an amended, hill. „ (p. 559.)</p> <p>3. Trusts and Trustees.</p> <p>A trustee in a deed of trust is the agent of both parties, and bound to act impartially between them. He is bound to bring the estate to the hammer, for the best interest of his cestui que trust, and should use all reasonable diligence to obtain the best price for the land. (p. 560.)</p> <p>4. Trusts and Trustees — Attachment—Equity-Jurisdiction.</p> <p>Where the owner of a foreign judgment brought a suit in equity, and issued an attachment, and had it levied on lánds on which there existed a deed of trust, the trustee in that trust was justified in resorting to a court of equity to have the trust enforced under its supervision, although the court, at the time, had no jurisdiction of attachments in equity for demands purely legal; and although, when these two suits were heard together, it was the duty of the court to dismiss the bill in the attachment-suit, yet the plaintiff in the attachment-suit, having answered the bill in the other suit, attacking the trust-deed as fraudulent as to the foreign judgment, said answer may be treated as a cross-bill, and the latter suit retained, and the whole matter be there litigated and settled, (p. 561, 562.)</p> <p>5. Feaud — Between Persons in Confidential Belations — Proof of Fraud.</p> <p>Transactions between father and child, husband and wife, brother and sister, between whom there exists a strong natural motive to provide for each other, at the expense of creditors, when sought to be impeached as fraudulent, require less proof to show fraud, and, on the other hand, when a prima faoie case is made, much stronger proof to show fair dealing than would be required if the transaction were between strangers, (p. 563.)</p> <p>6. Trusts and Trustees — Fraud—Burden of Proof.</p> <p>Where a husband confesses a judgment to a trustee for the benefit of his wife, or executes a trust deed for the same purpose, the burden is thrown upon the wife to show, as against creditors attacking either for fraud, that the transaction was fair and bona, fide, to secure to her a subsisting and valid debt. (p. 564.)</p> <p>7. Trusts and Trustees — Account—When Ordered.</p> <p>It is improper to order an account merely to establish by testimony the allegations of the bill. (p. 568.)</p> <p>8. Beversal of Judgment — Commissioner’s Beport.</p> <p>Where the court hears the cause, as well as the report of the commissioner, as upon the depositions taken in the cause long after his report ivas filed, and sustains an exception to the report, as to which he could not decide without looking into the deposition taken in the cause after the report had been filed, and, as to such matter, decrees against the report, when the same depositions show that, on another issue as to the amounts due on the demand set up in the cross-bill, the plaintiff in the original bill shall have large credits, which the court refuses because it would be against the finding of the commissioner, when it appears it was improper to refer the cause to a commissioner, and no exception was made by the plaintiff to the report, and it appears the court has not considered the depositions as to both issues, but only one, this is error, for which the decree will be reversed, (p. 569.)</p>

Statement of the case by GREEN, Judge : This was a suit in chancery, instituted in the Circuit Court of Roane county by the filing of a bill praying, among other things, the awarding of an injunction against the defendant, A. JB. Wells, trustee, from proceeding to make sale of the land in the bill mentioned. The bill was filed in open court on March 25, 1885, and the injunction asked was awarded as prayed for in the bill, which was sworn to by the plaintiff, P. G. Cunningham.

<p>1. PARTNERS AND PARTNERSHIP — SECURING CREDITORS.</p> <p>One partner has the right to convey the partnership effects (other than real estate) to a trustee to secure the creditors of the partnership, in the absence of his co-partners, (p. 589,)</p> <p>2. Partners and Partnership.</p> <p>When all the partners are present, they have a right to be consulted, but, if some of them are out of the State, then the managing partner may convey the trust-property to secure one or more of the firm-creditors, and thus give to them a preference, (p. 589.)</p> <p>3. Lien — Purchase-Money.</p> <p>The vendor of personal property has no implied or equitable lien on the property for the purchase money, (p. 590.)</p> <p>4. Lien — Pledge.</p> <p>An agreement to pledge personal property for the security of a debt is ineffectual to create a pledge of or lien on the property unless the property is put in the possession of the pledgee, (p. 591.)</p> <p>5. Lien — Trusts and Trustees.</p> <p>The owner sells the timber on his land at a gross price, to be paid as the timber is taken off the land, and gives to the purchaser the right to locate his mill on the land for the purpose of manufacturing the timber into lumber. The purchaser, without paying for the timber, cuts and removes it to his mill, where it is made into lumber, and stacked on the land. The purchaser then conveys the lumber by trust-deed, to secure bona fide creditors.</p> <p> Held: </p> <p>The vendor of the timber has no right or lien on the lumber, as against the rights of the creditors secured in such trust-deed. (id. 592.)</p>

<p>1. State — Action by — Fraudulent Conveyance — Lien.</p> <p>The State has the same right as one of its citizens to maintain a suit in equity to set aside a fraudulent conveyance, and subject the land of the defendant to its demands, (p. 698.)</p> <p>2. State — Fraudulent Conveyance — Lien.</p> <p>It can maintain such suit to set aside a fraudulent conveyance and subject the land of the defendant to the payment of a judgment for a fine recovered against the defendant for the unlawful sale of spirituous and other liquors, (p. 698-9.)</p> <p>3. Retailing Liquors — Fraudulent Conveyance.</p> <p>If a party engaged in the unlawful retailing of ardent spirits conveys away his land with the intent to prevent the State from subjecting it to the payment of any future fines for such unlawful retailing, such deed is fraudulent, although the sales on which fines were subsequently recovered had not then been made. (p. 598, 599.)</p>

<p>1. Wills — Construction—Children Subsequent to Execution— Curtesy — Husband and Wife.</p> <p>A married woman by will devised and bequeathed all her estate, real and personal, to her husband. ’At the time she made the will she had no children, but afterwards she had children, who survived her. Held:</p> <p>I. By operation of the statute, (Code, ch. 77, § 16,) the said devise and bequest tq thg husband is lifjiitgd to take effget only in the event the said children die unmarried and without issue.</p> <p>II. The husband, by virtue of his material right, is entitled to curtesy in the real estate of which the testatrix died seized, notwithstanding he failed to renounce the provisions of the will made in his favor, according to the provisions of Code, ch. 78, § II.</p> <p>III. But, by reason of his failure to renounce the provisions of the will, his right to any distributive share of the personal estate is barred.</p>

<p>1. Municipal Corporations — Actions against — Parties.</p> <p>■ If, in a suit against an incorporated town, the process be exe- ' cuted by delivering a copy thereof to its mayor, he is not thereby made a party to the suit; and if such town fail to answer the bill it will be taken for confessed against it, although the mayor has filed an answer in the cause, (p. 612.)</p> <p>2. Municipal Corporations.</p> <p>Where a suit is brought by a land-holder against an incorporated town, to enjoin it from opening a public alley through his land without having first condemned the same for public use, according to law, the owner of a lot adjoining such proposed alley, who has been instrumental in moving the public authorities of such town to open stich alley, may properly be joined with such town as a defendant in such suit. (p. 613.)</p> <p>3. Municipal Coup oration — Dedication—Proof—Proceeding to Condemn Land.</p> <p>Where such town proceeds to open such alley through a man’s land, without his consent, and without having first condemned the same for public use, according to law, upon the ground that the land proposed to be taken for that purpose has been dedicated to the public by the owner thereof, the burden of proof that such dedication has been made is upon the town. (p. 617.)</p> <p>4. Municipal Corporation — Dedication.</p> <p>Where such town claims that such alley has beeii, by the acts and declarations of the land-owner, dedicated to the publiq for that purpose, such acts and declarations must be deliberate, unequivocal, and decisive, manifesting a positive and unmistakable intention to permanently abandon his property for that specific public use. (p. 617.) . '</p> <p>5. Municipal Corporation — Dedication.</p> <p>A case in which the facts and circumstances appearing in the record were held to be insufficient to establish such dedication to the publib use.</p>

Statement of the case by Green, Judge : This was a chancery suit, brought by J. H. Rogers, in the Circuit Court of Cabell county, against J. W. Yerlander and Mary A. Rock and the judgment-creditors of Yerlander as well as his creditors secured by deeds of trust on his real estate or parts of it and the trustees in such deed of trust.

Statement of the case by Green, Judge : This was an action on the case, brought in the Circuit Court of Preston on March 16th, 1883, against the County Court of Preston, to recover for injuries sustained by the plaintiff by the falling upon him, while travelling along a public road in said county, of a dead tree which had been for many years standing within five feet of the edge of a road, in an inclosed field, which tree the surveyor of the road had for many years known was…

<p>1. Res Judicata — Stake Decisis — Equity Poweks.</p> <p>Where a judgment of the Circuit Courthas been affirmed by this Court, such judgment can not be impeached or set aside by a court of equity, in a suit brought for that purpose, upon any ground of error apparent upon the face of such judgment, or upon the record of the case in which it was rendered, (p. 668-9.)</p> <p>2. Vendor’s Lien — Marshalling Assets.</p> <p>Where a vendor’s lien is retained to secure the payment of several bonds given for the purchase-money of lands, and a judgment is obtained at law by the assignee of one of said bonds against the principal on said bond and his surety, the surety can not come into a court of equity and compel such assignee to exhaust his vendor’s lien before enforcing the collection of his judgment by execution against the surety, although it is shown that the principal debtor is insolvent, (p. 669-70.)</p>

<p>No appearance for appellee.</p>

Statement of the case by Woods, Judse: This was an action of ejectment brought by Charles Stockton and others, as the heirs of Aaron Stockton, deceased, against Evermont W. Copeland, Malloy M. Copeland, and Octavia Copeland, as the heirs of Hezekiah B. Copeland, deceased, for the recovery of a tract of 2,300 acres of land which the plaintiff claimed in fee.

<p>INDICTMENT — DRUGGIST—SELLING SPIRITUOUS LIQUORS</p> <p>In an indictment against a druggist under Code W. Va. oh. 32, § 5, as amended by Acts 1887, ch. 29, it is unnecessary to insert the name of the person to whom the liquor was sold.</p>

<p>1. Lis Pendens — Dating Back — Service of Subpcena.</p> <p>Where a bill in chancery is filed the Us pendens relates back to the service of the subpoena, and not to the day on which the subpoena was issued, (p. 699.)</p> <p>2. Sale of Land — Estoppel.</p> <p>If the owner of real estate, whether he has the legal title in him or not, permit such real estate to be sold in his presence by one who claims he has full power and authority to dispose of the same, and does not then assert his claim, but stands bjr and permits an innocent purchaser to buy such land, he is estopped thereafter from claiming such land of such innocent purchaser on the ground that the iierson of whom he purchased had no authority to sell such land. (p. 701.)</p> <p>3. Sale — Title.</p> <p>In such a case a court of equity would compel the owner of the land, or the person having really the authority to convey it, to vest the legal title of such land in such innocent purchaser who had paid the full price of the land according to the terms of his purchase, (p. 701-2.)</p>

Statement, of the case by GreeN, Judge : This was an action of ejectment brought in the Circuit Court of Kanawha, in May, 1887, by William Bowers and William K. Tompkins, against Mrs. Sally J. Dickinson and her six infant children defendants to recover a certain tract of land containing 1,532 acres 2 rods and 3 poles in Kanawha county, West Virginia, about 19. miles above the city of Charleston, on the south side of the Kanawha river, and lying upon the waters of the Mile…

Statement of the case by Green, Judge : This was an action brought by the plaintiffs before a justice of Tyler comity against the defendant to recover of him damages, which the plaintiffs had sustained by the defendant’s breach of contract with them to furnish and put a slate roof on the house of F. E. McCoy; and the plaintiffs in the summons claimed the sum of $200.00 as such damages.

<p>1. Judgment — Lien—-Appearance, of Counsel — False Appeabance —Statute of Limitations.</p> <p>After a judgment has been recovered in a suit at law, the record in which shows that the defendants appeared by counsel and filed pleas, and a suit in equity has been brought to enforce the lien of said judgment, the defendants can not, after the said suit has been pending ten years, prevent the enforcement of said judgment, on the ground that they did not employ counsel to defend them in the action at law, and that the record of their appearance by counsel was false, (p. 768.)</p> <p>2. Forthcoming Bond — Lien.</p> <p>A forfeited forthcoming bond has the force of a judgment, so as to create a lien upon the lands of the obligors, only from the time the bond was returned to the clerk’s office, (p. 771.)</p> <p>3. Forthcoming Bond — Lien.</p> <p>Where the only evidence of the time such bond was returned to the clerk’s office was an indorsement as follows: “Notice proved and docketed in court, 10 October, 1868, and mo. to quash,” — such bond would have the force of a judgment from the date in said in-dorsement. (p. 771.)</p> <p>4. Forthcoming Bond.</p> <p>The requirement by the statute that the clerk of the court shall indorse on a forfeited forthcoming bond “the date of its return,” is directory, (p. 771.)</p> <p>5. Forthcoming Bond — Homestead.</p> <p>Under chapter 29, Acts of 1864, a person recorded his declaration of “homestead. ” At the time he was an obligor on a forfeited forthcoming bond, which had been returned to' the clerk’s office. The homestead is subject to the lien created by the bond after its return, having the force of a judgment.</p>

<p>1. Statute op Limitation’s — Pleading the Statute.</p> <p>The statute of limitations, to be of any avail to the defendant in a suit, must be pleaded, or otherwise relied upon. (p. 778.)</p> <p>2. Trusts and Trustees — Married Woman.</p> <p>If a deed to a trustee to hold property for the sole and separate use of a married woman, does not, expressly or by necessary implication, authorize the trustee to sell or incumber the trust subject, any deed or mortgage executed by him conveying the property, or placing an incumbrance upon it, will be void. (p. 778.)</p> <p>3. Married Woman — Promissory Notes.</p> <p>If a person, for a married woman, borrows money, and executes a note therefor to the lender, and signs his own name thereto, designating himself as trustee for her, she will not be bound by such note. (p. 778.)</p> <p>4. Married Woman — Promissory Notes.</p> <p>And in such ease, if the party so designates himself as her trustee, when in fact -he is not, and so borrows the money, and with it pays the purchase-money notes executed for purchase-money for her separate estate, the lender of the money can not charge her separate estate for the payment thereof, although she may have requested the party to borrow the money for that purpose, (p. 778.).</p> <p>5. Amendment — Pleading.</p> <p>■ A party, under the privilege of amending, can not introduce new matter which would make an entirely new suit for a different purpose, ancl contradicting the grounds for relief set up in his original bill. (p. 779.)</p>

<p>1. Ejectment — Claim for Improvements — When Allowed.</p> <p>To entitle an evicted claimant of land to compensation for permanent improvements put upon the land by him while he was in possession, it must appear either that he was a bona fide purchaser and holder at the time he made the improvements, or that the improvements were made by him under such circumstances that it would be a fraud upon his rights to permit the owner to take them without compensation, (p. 784.)</p> <p>2. Ejectment — Claim for Improvements — When Allowed.</p> <p>Such evicted claimant, who is not a bona fide purchaser, can not recover compensation for his improvements, unless he shows that the owner has been guilty of fraud or gross laches in not notifying such claimant to desist, when he knew that the improvements were being made by the claimant under a mistaken belief that his title was good. (p. 785.)</p> <p>3. Ejectment — Claim for Improvements — When Allowed.</p> <p>If the owner had no knowledge of the fact before or at the time the improvements were made, he can not be charged with them,' although he is cognizant of the fact after they have been completed, and fails to notify the claimant of his title, (p. 780.)</p> <p>4. Ejectment — Claim for Paving Off Lien — When Allowed.</p> <p>Where such claimant, while in possession of the property, pays oif certain costs of suits purporting to be liens on the property, he will not be entitled to charge the owner with such costs, when it appears either in a direct or collateral suit or proceeding that the court which decreed said costs to be paid had no jurisdiction to render such decree against either the owner or the property, (p. 788.)</p> <p>5. Commissioner — Report—Review on Appeal.</p> <p>Where the finding of a commissioner upon a matter properly before him is based on the mere opinions of the witnesses, who differ greatly in their estimates, and the finding of the commissioner is sustained by the decree of the Circuit Court, this Court will not disturb such finding, unless it is plainly irreconcilable with any reasonable view of the evidence, (p. 790.)</p>

<p>1. Lien — Equitable Lien — Ckeation.</p> <p>Every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund therein identified, a security for a debt or other obligation, or whereby the party promises to convey, assign, or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property, (p, 795.)</p> <p>2. Lien — Equitable Lien — Creation.</p> <p>An obligation in writing held not to create any equitable lien on the property therein mentioned, (p. 795.)</p> <p>3. Equity Jurisdiction — Specific Performance.</p> <p>The test of equity jurisdiction, in respect to the enforcement of personal covenants, is the inadequacy of the legal remedy of damages in the class of contracts to which the particular instance belongs. (p. 792.)</p> <p>4. Equity Jurisdiction — Specific Performance.</p> <p>A court of equity will not exercise its jurisdiction to grant the remedy of an affirmative specific performance, however inadequate the remedy of damages, whenever the contract is of such a nature that the decree for its specific performance can not be enforced by the ordinary processes of the court, (p. 796.)</p>

Statement of the case by GR.EEN, Judge : This was an action on the case, brought by N. 0.