Volume 31 — West Virginia Reports

<p>1. Mobtgage — Taxes—Tax-Title—Mortgageor and Mortgagee— Tax-Deed — Tax-Sale.</p> <p>Where a mortgagee is notin possession of the lands conveyed by the mortgage deed, nor bound by any covenant, agreement or promise to pay the taxes on the property, there being no' trust-relation existing between the mortgageor and mortgagee, the mortgagee may purchase the lands so mortgaged, and acquire a good title thereto under his tax-deed; and if, under such circumstances, the mortgagee is dead, his executor may purchase the land at a tax-sale, and acquire title under a tax-deed. (p. 6.)</p> <p>2. Mortgage — Tax-Title—Tax-Sale—Mortgageor and Mortgagee. But where it appears, that shortly after the mortgage was recorded the land was charged on the assessor’s books in the name of the mortgagee, and not in the name of the mortgageor, and so remained for eight years, and not returned delinquent, so far as shown by the record, and then, after litigation had arisen with reference to the land between the mortgagee and the party entitled to the equity of redemption, the executor of the mortgagee suifered the land to he returned delinquent and purchased it at a tax-sale, the law will from these circumstances imply a promise from the mortgagee to the mortgageor to pay the taxes, and the purchaser being the executor of the mortgagee can not under such circumstances acquire title to the land, as it would be a fraud on the rights of the mortgageor to permit it. (p. 7.)</p> <p>3. Parties — Joinder of Parties not in Interest — Effect.</p> <p>The joinder of an improper plaintiff, haying no interest in the suit, will not affect the right of the real party in interest to maintain it. (ii. 8.)</p>

<p>1. Specific Performance — Parol Contract von Salís of Land— When Enforced.</p> <p>In a suit by the purchaser for the specific execution of a parol contract for the sale of land the plaintiff must^establisb the contract alleged in his bill by a clear preponderance of evidence. If the evidence is conflicting, and it is not clear that a contract was in fact made, the court should dismiss the bill. (pp. 12,13.)</p> <p>2. Specific Performance — Parol Conteact poe Sale of Land— When Enforced.</p> <p>To entitle a purchaser to relief in such a case it must appear, first, that the contract is certain and definite in its terms; second, that the facts proved in part performance refer to, result from or were made in pursuance of the contract proved; and, third, that the contract has been so far executed that a refusaljto_complete it „ would operate as a fraud upon the purchaser, and place him in a situation in which he could not be adequately compensated in damages. (p. 13.)</p> <p>3.Specific Performance — Parol Contract for Sale oe Land^ When Enforced.</p> <p>The payment of the purchase-money is not of itself such part performance as will take the case out of the statute of frauds, (p. 13.)</p> <p>4. Specific Pebfoemance — Paeol Oonteact eoe Sale op Land— ■When Enpoeced.</p> <p>In such case the plaintiff must show not only the terms of the contract, hut also such acts and conduct of the vendor, as a court would hold to amount to a representation that he would not rely on the statute to escape his contract, and also that in reliance upon this representation the purchaser has either in performance or in pursuance of his contract proceeded to alter his position so far as to incur an unjust, and unconscientious injury or loss, in case the vendor is permitted to rely upon the statutory defence, (p. 13.)</p> <p>5. Specific Pebfoemance — Paeol Oonteact foe Sale of Land— When Enpoeced.</p> <p>Under some circumstances possession will of itself entitle the purchaser to have the contract enforced; but in all cases in which possession is relied on, it must be a notorious and exclusive possession, and one which ivas delivered or taken under the contract, and so retained and continued, (p. 14.)</p> <p>6. Specific Peepoemance — Paeol Oonteact foe Sale of Land— When Enpoeced.</p> <p>When the purchaser moves upon the land and remains there in company with the vendor, and not as the ostensible and exclusive proprietor, such possession, as an act of part performance, will not entitle the purchaser to specific performance, (p. 14.)</p> <p>7. Specific Pebfoemance — Paeol Oonteact foe Sale of Land— When Enpoeced.</p> <p>While it is strong confirmatory evidence of the right of the purchaser, where it is shown that he has mpon the faith of his contract and with the knowledge of the vendor expended money in making permanent improvements upon the land, still, if he has been fully compensated by the use of the land or otherwise for his improvements, this alone will not be such part performance as will entitle him to specific execution, (p. 15.)</p> <p>8. Specific Peepoemance.</p> <p>The improvements must be beneficial to the estate, and of a permanent character. Mere repairs confer no rights upon the purchaser. (p. 15.)</p>

<p>1. Sepabate Estate — Mabbied Woman — Pubchaseb.</p> <p>In a suit in equity brought by a creditor to subject the separate personal estate of a married woman to the payment of a debt, in which no attachment was sued out, or lien acquired on the property prior to the institution of the suit, held, by two judges in a court of three, that, until the court takes the property out of the possession of the married woman, or the plaintiff acquires a lien upon it in some of the modes recognized by the laws of this State, a purchaser thereof for value and without fraud will not be liable to the plaintiff for the property so purchased or its value, whether such purchaser had or had not notice of the pendency of such suit at the time of his purchase; and, by one of said judges, that the plaintiff, from the time his summons is served on the woman, acquired a claim or right to subject said property as against all the world, and that the pendency of the suit is sufficient to charge a purchaser, without regard to whether he has or has not in fact notice of the pendency of the suit.</p> <p>2. Appeal — Decision—Concueeence op Judges.</p> <p>Under our State Constitution, § 4, art. VIII, the decision in this case is not binding authority in any other ease, because not concurred in by at least three judges.</p>

Statement of the case by Woods, Judge : This is an action of debt in the Circuit Court of Mercer county, in the name of the State of West Virginia, at the relation and for the benefit of J. T. Griffith against Edmund Purcell, Thomas Purcell and Thomas Peed, upon an injunction bond in the penalty of $1,000.00, which, after reciting that said Edmund Purcell, in a certain chancery suit instituted by him against said J. T. Griffith, had obtained from the judge of the Circuit…

Statement of the case by Green, Judge : The facts appearing from the pleadings in this cause out of which this suit arose are these : The Farmers’ Bank of Philippi obtained a judgment against J. W. Talbot, John F. Woodford, James E. Heatherly, Henry A. Gale, James M. Woodford, James W. Robinson, and A. T. Daniels in the Circuit Court of Barbour, on February 1,1886, for $1,781.80 with interest from January 30,1886, and costs $3.95. James M. Woodford was insolvent.

<p>1. Liens — Release of — Deed oe Trust.</p> <p>The owner of land conveys the same by deed to secure the payment of a specified number of coupon-bonds, and it is provided in the deed that said bonds are to he used in exchange for and to take up the outstanding debts of the owner, including the liens on the land, whether placed there by the owner or by former owners, so far as the same can be done, giving preference to the liens. A creditor who has a prior lien on a part of the land accepts in settlement of his debt coupon bonds, surrenders his original evidence of debt, and by writing under seal releases his lien. A number of other creditors having prior liéns refuse to accept coupon bonds in satisfaction of them; and many of the bonds are used to take up simple contract- debts of the owner. R'eld. (1) the terms of the deed did not make the taking up of all the prior liens a condition which, unless complied with, would make the release of their prior liens by those who had accepted bonds void; (2) the only limita-tation imposed by the terms of the deed is that the lien-creditors should be preferred in issuing the bonds; but the power to use the bonds in taking up the debts of the company is not confined to prior liens on the land, and could be rightfully used in taking up any debts of the company, including simple contract-debts. (p. 86.)</p> <p>2. Release op Lien.</p> <p>Whether or not a particular transaction amounts to the release of a lien on real estate is a question of intention on the part of the releasor. In a doubtful case such intention will not be implied ; but, when it is clear that such was the intention, a court of equity will enforce the release, although no formal release has been executed. (p. 90.)</p> <p>3. Lien — Adi.iinistievtobs—Powers—Release of Lien.</p> <p>An administrator has full control of the personal estate, and may sell the choses in action if the exigencies of the estate require it, or he may exchange a bond due to the estate for the note of a third person, and release the lien on real estate by which such bond is secured, and if done without fraud the transaction will be binding upon the administrator and those whom he represents, (p. 90.)</p> <p>4. Waivee — Supreme Court of Appeals.</p> <p>When the parties, whose interests would entitle them to call for a decision upon a particular question presented by the record, waive such decision, this Court will not pass upon such question at the instance of a party who cannot be benefited or affected by such decision, (p. 93.)</p>

<p>MaReieb .Woman — Separate Earnings op Wipe — Husband’s Creditors.</p> <p>At common-law tbe earnings of the wife during coverture were the property of her husband; but in equity the husband might consent to her receiving such earnings, and they would be hers as against her husband and his devisees or distributees; but he could not permit her to receive such earnings as against the rights of his creditors. This rule of the common-law and chancery practice has not been changed by our statute (chapter 66, Code 1868) as to the rights of married women, (p. 96.)</p> <p>2. Married Woman — Earnings op Wipe — Husband’s Creditors.</p> <p>The creditors have the right to seize such earnings by proper process against the husband, before they are reduced to possession by the husband ; but are liable to be defeated in such proceeding, by the death of the husband before they are reduced to possession, as in such case they would survive to the wife. (p. 98.)</p> <p>3. Married Woman — Earnings op Wipe — Husband’s Creditors.</p> <p>Where a wife during coverture, while living with her husband, earned money by sewing and washing, and with his consent bought two lots with the money, and the deed therefor was made to her, the creditors have a right to subject such lots to the payment of their claims, (p. 100.)</p> <p>4. Married Woman — Earnings op Wipe — Husband’s Creditors.</p> <p>And where the wife, after thus acquiring the deed to.the lots, herself puts valuable improvements thereon with means not furnished by her husband, the creditor has the right to subject the whole property, including the improvements, to the payment of his judgment, (p. 105.)</p>

<p>1. Attorneys — Contracts by — Co-partnership—Acceptance op Retainer.</p> <p>If attorneys who are co-partners accept a retainer, the contract is joint, and continues to the termination of the suit; and neither can he released from the obligation, either by a dissolution of the firm, or by any other act or agreement among themselves, (p. 114.)</p> <p>2. Attorneys — Contracts by — Co-partnership—Acceptance op Retainer.</p> <p>But the contract is terminated by the voluntary dismission of the suit by the plaintiff, and the rights of the parties to the contract are then fixed, (p. 115.)</p> <p>3. Attorneys — Contracts by — Co-partnership—Acceptance op Retainer.</p> <p>Where a law firm was employed to assist in the prosecution of a suit in the State court to set aside a will, and the fee was contingent on the success of the plaintiff; and, when the canse ivas ready for trial, the plaintiff', without the consent of his counsel, dismissed his suit in the State court, and employed one of the said firm, after the dissolution of the partnership,' to bring a suit in the Circuit Court of the United States for the same purpose, and he filed substantially the same hill, held, this is a separate and distinct suit, and the former employment has nothing to do with it and the old. firm is not entitled to any of the fees earned in the new suit. (p. 115.)</p>

<p>1. Railkoad Companies — ifegligence—Contributory.</p> <p>In an action by an employe against a railroad company for injuries received in the service of the company, if the evidence of either the plaintiff or the defendant clearly shows, that the plaintiff was guilty of the negligence, which was the direct cause of the injury, there can be no recovery against the defendant.</p> <p>2. Railroad Companies — Negligence—Contributory.</p> <p>If in such case the jury finds for the plaintiff, and judgment is rendered by the trial-court on the verdict for the plaintiff after overruling the motion of the defendant for a new trial, this Court will, when the evidence of the plaintiff and the uncontradicfed evidence of the defendant taken together plainly show that the plaintiff’s negligence was the direct cause of the injury, reverse the judgment and grant a new trial.</p>

<p>Selling Spirituous Liquors — Agent.</p> <p>When a druggist has spirituous liquors in his store, and a sale thereof is made in violation of the statute (chapter 107, Acts 1877) by his clerk, he will be responsible for the sale, and may be fined therefor, notwithstanding the sale may have been without his knowledge and contrary to his instructions to his clerk.</p>

Statement of the case by Woods, Judge : At the November term, 1886, of the Circuit Court of Nicholas county, Haymond Koontz was indicted for the crime of forgery.

<p>1. Jurisdiction — Vendor and Vendee — Deficiency in Quantity— Abatement of Purchase Price.</p> <p>A court of equity has jurisdiction to abate from the purchase-money due from a vendee, for a deficiency in a sale of land, by which the vendee was injured through the fraud of the vendor in misrepresenting the quantity of the land, on the face of his contract or deed, or orally, (p. 140.)</p> <p>2. Reversad of Decree.</p> <p>Where the decree sought to be reversed is based upon depositions which are so conflicting, and of such a doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusion to be deduced therefrom, the appellate court will decline to reverse the decree, although the testimony may be such that the appellate court might have rendered a different decree if it had acted on the cause in the first instance, (p. 141.)</p> <p>3. Reversal of Decree — Costs.</p> <p>If no other error is found in a decree, it will not be reversed because the court may have erred in decreeing costs, (p. 141.)</p>

<p>1.Misnomer — Plea in Abatement — Common-Law Pleading.</p> <p>Under section 14 of chapter 125 of the Code, no plea in abatement for a misnomer is allowed in any action; but the declaration and summons may, on motion of either party, on an affidavit of the right name be amended by inserting the same therein, (p. 145.)</p> <p>2. Declaration — Damages—Several Counts — Common-Law Pleading.</p> <p>Where there are several counts in a declaration, and no damages named in any but the last count, the declaration is sufficient, as the damages claimed at the end of the declaration applies to each of the counts, (p. 145.)</p> <p>3. Negligence — Master and Servant — Common-Law Pleading.</p> <p>A declaration by a servant against his master for an injury which properly charges the master with negligence, although it does not allege knowledge in the master of the defect in the machinery which caused the injury, or that he ought to have known of such defect, and does not allege ignorance of such defect in the plaintiff, is sufficient, (p.146.)</p> <p>4.. Negligence — Master and Servant — Assumption op Bisk.</p> <p>When a servant enters into the employment of a master, he assumes all the ordinary risk incident to his employment, whether the employment is dangerous or otherwise, (p. 152.)</p> <p>5. Negligence — Master and Servant — Degree op Care.</p> <p>The master must provide for the safety of his servant, as far as can reasonably be expected under the circumstances; but he is not obliged to take more care of his servant than he would be expected, as a prudent man, to take of himself, (p. 152.)</p> <p>6. Negligence — Mastejb and Servant.</p> <p>If a servant wilfully encounters dangers which are known to him, or are notorious, the master is not responsible for any injury occasioned thereby, (p. 152.)</p> <p>7. Negligence — Master and Servant.</p> <p>The measure of care which a master must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected, and the whole risk his own. (p. 152.)</p> <p>8. Negligence — Master and Servant.</p> <p>Negligence and ordinary care are correlative terms. What constitutes ordinary care depends upon the circumstances of each particular case. It is such care as a person of ordinary prudence would under the circumstances exercise, (p. 152.)</p> <p>9. Negligence — Master and Servant — Defective Appliances— Promise to Remedy.</p> <p>If the master has been guilty of negligence in failing to procure suitable appliances, or machinery, for carrying on his business, and injury results therefrom to his servant, he must respond in damages, unless the servant, well knowing the default in this respect, enters upon the employment, or continues therein after such knowledge. In such case he assumes the increased risk, and can not hold the master responsible for the consequences. But if the servant knows the defect or danger, and has reasonable grounds to believe that the master has cured, or will immediately cure, the defect, he is not guilty of contributory negligence, by remaining in the service, and may recover for injury caused by such negligence of the master, (p. 152.)</p> <p>10. Negligence — Master and Servant.</p> <p>If a master, having knowledge of a danger of which the servant is ignorant, by his conduct, actions, or words, lulls the servant into a sense of security, in consequence of which he is injured, the master is answerable in damages, (p. 152.)</p> <p>11. Negligence — Master and Servant — Defective Machinery.</p> <p>A servant can not recover for an injury suffered, in the course of his employment, from a defect in the machinery or appliances used by the master, unless the master knew, or ought to have known, of the defect, and the servant was ignorant of such defect, or had not equal means of knowledge, (p. 152.)</p> <p>12. Negligence — Master and Servant.</p> <p>The plaintiff and others while operating the defendant’s machinery, being startled by an unusual sound, stopped work, observing which the defendant asked: “What is the matter? ” and was answered, “ The chain is going to break,” upon which he assured the men that there was no danger, and ordered them to “ go ahead on the chain.” Shortly after the chain broke, resulting in the fracture of the plaintiff’s leg. Held :</p> <p>I. Under the circumstances the defendant should have examined the chain to see if there were any defects in it; and if, on an examination made with proper caution and care, he had found none, he would have been justified in ordering the men to go on with the work; and if after that the' chain had broken, he would not have been liable in damages.</p> <p>II. But as he did not make any examination, his responsibility depends upon what would have been the result of a subsequent examination. If that had shown, that defects existed, which the defendant ought to have known, and which by an examination conducted with proper caution and care he could have discovered, he is responsible; otherwise he is not responsible. Upon the question, whether the burden rests upon the plaintiff of proving, that such an examination would have disclosed such a defect, or upon the defendant, that it would not, the Court is equally divided, (pp. 154r-15S.)</p>

<p>1. Fraudulent Conveyances — Assignment—Priority or Debts.</p> <p>Where an assignment of personal property is made in fraud of creditors, they or any of them may in a court of equity have the same set aside. The creditor, who first files his bill, obtains thereby a priority and is entitled to be first paid from the proceeds of the sale of the property, if there are no valid prior liens, (p. 159.)</p> <p>2. Fraudulent Conveyances — Assignment—Priority or Debts.</p> <p>Where a deed of personal property giving preference to creditors, who might accept its terms, was sought to be enforced in a court of equity by creditors, who had accepted its terms, and certain creditors filed answers attacking it for fraud, such answers may be regarded as cross-bills, and if the said defendants should succeed, they would have the same preference, as if they had filed an original bill for the same purpose; and where they were defeated in th e court below, and alone appealed, and procured a reversal of the decree, and the deed was declared void, they have priority, there being no liens before their answers in the nature of a cross-bill were filed, and are entitled to be first paid out of the fund. (p. 161.)</p>

<p>1. Indictment — Seeling Spirituous Liquors — Place or Sale.</p> <p>Tn ail indictment for selling spirituous liquors without a license, it is not necessary to allege in the indictment the place where the liquor was sold. (pp. 163, 164.)</p> <p>2. Trial — Waiver of Jury.</p> <p>On the question, whether section 14 of the bill of rights of this State, declaring that “trial of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men,” not only secures to persons accused of crimes and misdemeanors the right to have an issue of not guilty to the charge in the indictment tried by a jury, but also inhibits the trial of such issues by the court in lieu of a jury, and on the question whether an issue in a misdemeanor case can he so tried even with consent of the defendant, the Court is equally divided. Snyder and Green, JJ., for affirmance. Johnson, P. and Woods, J., contra, (p. 165 etseq.)</p> <p>3. Trial — Waiver of Jury.</p> <p>As to whether section 29 of chapter 116 of the Code, so far as it provides for the trial of misdemeanor cases by the court in lieu of a jury with consent of the defendant, is unconstitutional, the Court is equally divided. Snyder and Green, JJ., for affirmance. Johnson, P., and Woods, J., contra, (p. 165 et seq.)</p>

This was an action on the case, brought on February 27,1885, in the Circuit Court of Mason county, by Nancy A. Pegram, the widow of Thomas Pegram, against John G. Stortz, under chapter 107, Acts 1877, p. 139, (see Warth’s Amended Code, ch. 32, § 16, p._ 216,) for injury to the plaintiffs means of support, as the wife of Thomas Pegram, caused by the sale or furnishing to him by the defendant, a saloon-keeper, of intoxicating liquors, whereby he became intoxicated, and by…

<p>1. Indictment — Burglary—Ownership op House.</p> <p>Under our statute, an indictment for “house-breaking-” must allege the “ ownership ” of the house which has been broken and entered.</p> <p>2. Indictment — Burglary—Allegation op Ownership — What Amounts to.</p> <p>An allegation in the indictment that “the prisoner a certain outhouse and cellar not adjoining to nor occupied with the dwelling-house of J. W. Hale, there situated, in the night-time feloniously did break and enter, with intent,” etc., does not allege the ownership of the outhouse and cellar to he in any one, and the indictment, as an indictment for “house-breaking,” is fatally defective. •</p> <p>3. Indictment — Burglary—Sufficiency to Sustain a Charge of Larceny.</p> <p>But as the indictment alleged that the prisoner did break and enter the cellar, “ and one keg of wine, of the value of fifteen dollars, of the goods and chattels of J. W. Hale in the said house and cellar then and there being found then and there feloniously did steal,” etc., it is good as an indictment for petit larceny.</p> <p>4. Indictment — Bubglahy.</p> <p>On trial of the issue on the indictment, the jury returned a verdict of “guilty as charged in the indictment.” The prisoner moved in arrest of judgment, which the court overruled, and sentenced the prisoner to the penitentiary. Held. — Judgment for felony could not he rendered on the verdict, and the court should, on the verdict, have rendered a proper judgment for petit larceny.</p>

<p>1. Sale — Judicial Sale — -Authority oe Commissioner to Make Private Sale.</p> <p>Where a decree requires land to be sold at public sale, the commissioner has no authority to sell the land at private sale, and such a sale will not be confirmed by the court. The sale is void. (p.362.)</p> <p>2. Sale — Purchase by Wife oe Judgment-Debtor — Subrogation. Where a decree was rendered for the sale of a tract of land at public sale, and there was but one judgment-lien upon it at the time, and, by the consent of the judgment creditor and the debtor, the land was, by the commissioner, sold to the wife of the debtor, and, out of her own separate estate, she, without fraud, paid for the land, by paying the said judgment and costs of the suit, and afterwards another judgment was recovered against the debtor, while the wife is not entitled to hold the land under her purchase, yet she is entitled to be subrogated to the rights of the creditors in the said judgment which she discharged, (p. 362.)</p>

<p>Appeal — Review—Failube to Move poe New Teial — Waives op Eeeoes.</p> <p>In a case tried by a jury, no matter how many exceptions are taken to rulings of the court during the trial, unless a motion is made in the trial-court to set aside the verdict, and that motion is overruled, and an exception taken, or objection made, to the overruling of such motion is noted on the record, all such errors will by the appellate court be deemed to have been waived.</p>

<p>1. Injunction — Judgment of Justice — Paiduke to Serve Process. A judgment pronounced by a justice without service of process upon or notice to the defendant is void. But as such judgment may be set aside, even when rendered upon the verdict of a jury, by the Circuit Court upon a writ of eertiorari, the defendant in the judgment can not obtain relief against it in a court of equity.</p> <p>2. Injunction — Dismissal of Bill — Personal Decree against Plaintiff.</p> <p>Where upon a bill filed to enjoin a void judgment the plaintiff is denied all relief, for the reason that he has an adequate remedy at law, it is error to enter a personal decree against the plaintiff for the amount of the judgment enjoined upon the dissolution of the injunction. In such case the only power possessed hy the court is to dissolve the injunction and dismiss the hill with costs.</p>

<p>1. Reveiisal oe Judgment — Justice oe the Peace.</p> <p>In a case taken by appeal from the judgment of a justice to the Circuit Court, where it was tried by a jury, this Court will not reverse the judgment simply because the jury were sworn to “try the issue ” between the xiarties, where the record fails to show that any plea had been filed or issue made in the case, in the absence of anything to show that the plaintiff in error was prejudiced by such irregularity, if it was such.</p> <p>2. Reversal oe Judgment — Instructions.</p> <p>It is the legal right of counsel on the trial to submit instructions to the jury, and have them passed ujion by the court; hut where instructions are submitted by counsel after the jury had been directed to retire, and the court refuses to consider them because offered too late, this Court will not reverse the judgment of the trial-court, unless it affirmatively appears that the said court manifestly abused the large discretion vested in it in respect to its action in the matter.</p>

<p>1. Married Woman — Eight oe Wire to Sue — Separate Estate.</p> <p>Our statute (section 12, ch. 66, Code,) providing that a married woman may sue and be sued, without joining her husband, where the action concerns her separate property, was intended to remove the wife’s disability to sue alone, and not impose any disability on her common-law rights or remedies.</p> <p>2. Married Woman — Joinder or Husband — Separate Estate.</p> <p>It is not error for the wife to join her husband with herself as plaintiff in an action concerning her separate property, although she may in such action sue alone.</p>

<p>1. Gaming — Construction oe Statute — Nuisance.</p> <p>The provision of our statute against gaming contained in Code W. Va., § 4, Ch. 151. is intended to prevent gaming from becoming an annoyance or a nuisance to the public, and not specially to suxipress gambling as a vice per se.</p> <p>2. Gaming — Evidence.</p> <p>A case in which the facts proved are held insufficient to sustain a verdict of guilty under said statute.</p>

<p>1. Declaration — Municipal Corporations — Defective Streets— Pleading — Notice of Defects.</p> <p>Our statute (section 53, ch. 43, Code) imposes an absolute liability upon cities, villages, and towns for injuries sustained by reason of the failure of the municipal authorities to keep in repair those streets, sidewalks, ete., within the corporate limits, which its authorities have opened or controlled, and treated as public streets, side-walks, etc., and therefore, in an action against a town by a person injured by a defective side-walk, he is not required to allege in his declaration, or pi’ove on the trial, that the defendant had notice of the defect or want of repair in such side-walk.</p> <p>2. Declaration — Injuries by Defective Streets — Proof of Municipal Control.</p> <p>But, in order to entitle the plaintiff to recover on such action, he must allege and prove that the street or side-walk upon which the injury occurred was, at the time and place where the injury was sustained, controlled and treated by the town authorities as a public street or side-walk, and opened as such.</p>

<p>1. Juries and Jurors — Discharge of Juror — Discretion of Triad Court.</p> <p>It is within the sound discretion of the court in the trial of a felony case, if a juror at any time after he is sworn and before verdict, becomes from any cause unable ;to discharge his duties as such juror, to discharge such juror and substitute another qualified juror in his place; and when such substitution is made, the trial shall proceed, just as if it had then commenced before a new jury. (p. 397.)</p> <p>2. Juries and Jurors — When Discharge is Proper.</p> <p>Where, after the greater part of the evidence had been heard in a felony case, the information was imparted to one of the jurors that his son had just died, and the court certified that it “ appeared to the satisfaction of the court that the juror, by reason of his affliction, was unable to discharge his duties as a juror,” and discharged the juror at his request, Said: A necessity for the discharge of the juror existed, and he was properly discharged, (p. 399.)</p> <p>3. Juries and Jurors — Discharge of Juror — Substitution.</p> <p>After such discharge another qualified juror was substituted, and the trial proceeded da novo, and the prisoner was convicted, and moved for his discharge on that ground, which motion was overruled, and the prisonsr sentenced. Held. — No error; also that it was no ground for a new trial, (p. 399.)</p> <p>4. Juries and Jurors — Verdict—Criminad Practice.</p> <p>Where, upon a trial for malicious cutting with intent to kill, the jury find “ the defendant not guilty as charged in the indictment, but find the defendant guilty of unlawful cutting,” it is proper for the prosecuting attorney to put such verdict in propel1 form, finding the defendant not guilty of maliciously but of unlawfully doing the act charged in the indictment; and when, after the verdict is so written and read, on the jury being polled, one juror dissents from the verdict so written, it is proper for the court to direct the jury to return to their room to further consider of their verdict, and, when the jury render the same verdict, there is no error in entering judgment on such verdict, (p. 403.)</p> <p>5. CONSTITUTIONAL LAW.</p> <p>Section 22 of chapter 152 of the Code, authorizing the court to fix the punishment when a prisoner has been found guilty of a felony, is constitutional, (p. 406.)</p> <p>6. Appeal — Review— Sufficiency of Evidence.</p> <p>The second point in the syllabus in Flanagan’s Case, 26 W. Va. 116, reaffirmed, (p. 405.)</p>

<p>1. Usury — As a Deeence — How Made.</p> <p>The defence of usury is personal to the debtor and he can only make such defence by, in some mode either before a court or a commissioner distinctly raising the defence that he has been charged in the note or other demand a greater interest than is allowed by law. (p. 416.)</p> <p>2. Usury — Allowance by Commissioner — Exceptions to Report.</p> <p>It is not always necessary that the defence of usury should be raised by plea or answer. It may be relied on before a commissioner ; and if the commissioner audits a usurious claim against a debtor, and he has not raised such defence in any other mode in the suit, he must in a written exception to the report, signed by counsel or himself, clearly and distinctly except on the ground that in the report interest has been charged against him in excess of what the law allows, (p. 416.)</p> <p>3. Usury.</p> <p>A mere request by himself of the commissioner to make an alternative statement of the claim against him, charging the legal rate of interest, which the commissioner does, and then the commissioner reports the claim against him at ten per cent., or with illegal interest, and he does not except to the report on the ground that usurious interest is charged against him, fails to raise the de-fence of usury, (ii. 417.)</p> <p>4. Usury — Interest on Interest — When not Usury.</p> <p>An agreement to pay interest on interest is valid, if made after the interest which is to bear interest has become due and payable, (p. 420.)</p> <p>5. Usury — Interest Notes — Trust-Deed Securing Principal Debt.</p> <p>Where a bond providing for the payment of interest annually was secured by a deed of trust, and afterwards, for several years, when the interest was due and payable, interest-notes were executed, bearing the same rate of interest as the original bond, .as between the parties the deed of trust will secure the payment of interest on these new interest notes, hut such interest can not avail as against subsequent creditors or purchasers, (p. 420 et seq.)</p> <p>6. Usury — Finding by Commissioner.</p> <p>Where a bond provided for the payment of a sum of money three years after date, with interest at ten per cent, per annum from date, and the claim was- audited by the commissioner at ten per cent, to the time the report was completed, it should hear interest, on the aggregate amount of principal and interest, from that date, at the contract rate of ten per cent, per annum until paid. (p. 422.)</p> <p>7. Sale — Dower—Joinder oe Wiee in Trust-Deed.</p> <p>Where a deed of trust is executed in which the wife joins, and there are liens on the land both prior and subsequent to the trust-deed, the wife has no contingent right of dower except in the surplus, after the trust-lien is paid in full, and on this contingent right of dower the trust-lien creditor has the first and only lien, there being but one deed of trust; and in such case the decree ought to provide that the land should be sold clear of the wife’s contingent right of dower, if it appears at the sale it is necessary to pay the full amount of the trust-iien. If not, it should be sold subject to the dower, (p. 423.)</p> <p>8. Sale — Deed oe Trust — Terms oe Sale.</p> <p>Where a deed of trust is executed, and there are a number of prior judgment-liens on the land, and it is necessary to resort to a court of equity for the enforcement of the liens, the court will fix the terms of sale according to the rules of equity, without regard to the terms of the sale fixed in the trust-deed. (p. 423.)</p>

<p>1. Specific Performance — Chancery Pleading — Tender of Deed with Bill.</p> <p>Ordinarily, it is not essential that the plaintiff, in a suit for the specific execution of a contract for the sale of land, should tender with his bill a deed to the defendant for the land, even when the execution of the deed and the payment of the purchase-money are dependent covenants.</p> <p>2. Specific Performance — Chancery Pleading — Demurrer.</p> <p>A bill filed by a married woman and her husband for the specific performance of a contract for the sale of land belonging to the female plaintiff, is not demurrable simply because it appears upon the face of the deed tendered with the bill that the acknowledgment is dated after the suit had been commenced.</p>

<p>1. New Trial — Evidence—Instructions—Supreme Court of Appeals.</p> <p>Upon a writ of error to an order of the Circuit Court setting aside the verdict of a jury and awarding a new trial, the plaintiff in error can not, for the purpose of having such order reversed, complain in this Court that the trial-court admitted illegal evidence, or gave the jury improper instructions, (p. 431.)</p> <p>2. New Trial — Review—Discretion oe Trial-Court.</p> <p>When a new trial has been granted in such case, the opinion of the trial-court is entitled to peculiar respect, and the appellate court ought not to interfere with the order granting the new trial, unless, upon an examination of the whole evidence, it finds a clear preponderance of evidence in favor of the verdict. It is the constant practice in such cases to refuse to disturb such order, even where the court would have done the same thing had a new trial been denied, (p. 432.)</p> <p>3. New Trial — Evidence—Discretion oe Trial-Court.</p> <p>The trial-court may in the exercise of a sound discretion set aside the verdict of a jury and award a new trial in a case, where the evidence is contradictory; but this discretion in such case should always be exercised with great caution, and a new trial granted only where the verdict is against the weight of evidence, (p. 432.)</p> <p>4. Survey — Boundaries—Monuments—Course and Distance.</p> <p>Where the boundaries of land described in a survey can not be established by reference to known monuments, and the courses .and distances can not be reconciled, there is no universal rule which requires that one of these should yield to the other, but either may be preferred, as shall best comport with the manifest intention of the parties, and with the circumstances of the case, (p. 436.)</p> <p>5. Survey — Corners—Courses and Distances.</p> <p>Where all the comers of a survey are known and identified except one, and it is shown that the lines to and from Unit corner were never run; that to establish said corner by the courses alone will locate it 200 poles from the terminus of the distance called for in the line approaching it, and, if located by allowing the full distance of this line, both course and distance of the line running from this corner must be violated to reach the next corner, which is fully identified; and it is also shown that there is a mistake of about 200 poles in the length of the line directly opposite the line approaching said corner, and that, to establish the corner by running the full distance of said line, the areas of the tracts of land dependent on the location of said corner for fixing the dividing line between them will much more nearly approximate the areas ascribed to them by the original survey and subsequent conveyances than if the said corner is located by the courses alone; held, the proper manner of locating said corner, under these circumstances, is to follow the course, and run the full distance of the line approaching it, and then close the survey by running a straight line from that point to the known corner, (p. 438.)</p>

<p>1. Bastardy- — Prosecution—Evidence—Chastity oe Complainant.</p> <p>In a prosecution for bastardy against the putative father of a bastard child, under the provisions of chapter 80 of the Code, the character of the conqplainant for chastity is not involved in the issue, (pp. 444, 445.) '</p> <p>2. Bastardy — Evidence—Intercourse with Others than De-pendant.</p> <p>Upon the trial in such a proceeding the defendant will not be permitted to introduce evidence to prove that the complainant has at any time had carnal connection with other men, unless such connection has occurred within such a period before the commencement- of her gestation that it is possible that one of such other persons may have been the father of the child, (p. 445.)</p> <p>3. Bastardy — Impeachment of Complainant.</p> <p>If upon such trial the complainant upon the witness-stand, in her examination in chief or upon cross-examination, has testified that she has never had connection with any man other than the defendant, he can not, for the purpose of impeaching her testimony, or of showing that he is not the father of the child, introduce testimony tending to show that she had any such carnal connection with other men, unless it has occurred so near the commencement of her gestation that some person other than the defendant may he the father of the child, (p. 445.)</p> <p>4. New Trial — Newly-Discovered Evidence — Motion.</p> <p>-A motion to set aside a verdict and award a new trial,.founded upon an affidavit of newly-discovered evidence, which fails to show the character, relevancy and materiality thereof, will be overruled under the rule established by this 'Court in the fifth point of the syllabus in Betsall’s Case, 11 W. Va. 703, which is reaffirmed in this case. (p.446.)</p>

<p>1. Record — Appeal—Exceptions, Bill of.</p> <p>A paper purporting to be a bill of exceptions, and copied into the record as such, will not be regarded or treated by the appellate court as a part of the record, unless the record shows that it was by some order or memorandum entered on the order-book of the trial-court made a part of the record.</p> <p>2. Record — Instructions.</p> <p>Instructions copied into the record, when there is no bill of exceptions or order of the court referring to them, will not be regarded as any part of the record.</p>

<p>1. Itinerant Physicians and Druggists — Regulation or Practice — Tax.</p> <p>Section 14 of chapter 150 of the Amended Code prohibits an itinerant physician from practicing medicine, an itinerant vendor of drug's from selling such drugs etc. or any one, by any drug nostrum etc. from treating diseases without first paying the special tax required by the section, (p. 454.)</p> <p>2. Indictment — Sufficiency.</p> <p>An indictment containing but one count, which charges that the defendant did all the acts prohibited by the statute without paying the special tax required, is a good indictment, (p. 454.)</p> <p>3. Indictment — Evidence—Sufficiency.</p> <p>On the trial of the issue on such an indictment proof, that the defendant was an itinerant vendor of drugs, sustained the indictment, and the general finding of guilty would not be set aside, (p. 456.)</p>

<p>1. Assault and Battery — Damages—Punitive—Compensatory.</p> <p>In an action for trespass for an assault and battery damages can not be recovered for the purpose of punishing the defendant, but for compensation for the injury done by him ; and in considering the quantum of damag'es the jury have a right to consider not only the physical injury and physical suffering, and expenses and loss of time and wages, but also the mental anguish, shame and dishonor suffered by the injured party, (p. 458.)</p> <p>2. Assault and Battery — Damages—Punitive—Compensatory.</p> <p>In such an action an instruction that, “if the jury believe from the evidence that the assault in the declaration mentioned was committed by defendant, the plaintiff is only entitled to compensation for such injuries as, he may have shown from the evidence, were caused by the assault, they will not award punitive, vindictive, or exemplary damages,” was properly refused, because it does not propound the law correctly and is misleading, (p. 459.)</p> <p>3. New Trial — Disqualification of Juror.</p> <p>A new trial will not be granted on account of the disqualification of a juror for matter that is a principal cause of challenge, which existed before he was elected and sworn as a juror, but which was unknown to the party until after the trial, and which could not have been discovered by the exercise of ordinary diligence, unless it appears from the whole case, made before the court on the motion for a new trial, that the party suffered injustice from the fact that such juror served in the trial of the case. (p. 461.)</p> <p>4. New Trial — Disqualification of Juror.</p> <p>A juror served in the trial of a case, when under the statute he was disqualified by reason of the fact that he had a similar case ready for trial in the same court. The counsel for the. defendant, after the juror was sworn and before verdict, knew he was disqualified and moved for anew trial on that ground, and it did not appear, that the defendant had been injured by the fact that said juror served on the jury. Held, no ground for a new trial, (p. 461.)</p>

<p>1.Contract — Performance—County.</p> <p>Where a County Court made a contract for making a road and building a bridge according to certain specifications, and added, “ to the satisfaction of the court,” it means that it must be done according to the specifications, and that would be to the satisfaction of the court. In such case, in a suit by the contractors for damages for breach of the contract, the declaration need not allege that the work was done “ to the satisfaction of the court.”</p> <p>2. Contracts — Evidence—Report of Commissioners.</p> <p>Where an action is brought for breach of contract made by commissioners of a County Court with the plaintiff, a report made by these commissioners to the County Court, that the contractor had failed to comply with his contract, is improper evidence.</p> <p>3. Plea — Payment—Joinder of Issue — Similiter.</p> <p>A plea of payment should conclude to the country; and, where a plea of payment is entered, the plaintiff may, without the formal addition of the similiter, proceed to trial as though the issue had been formally joined.</p> <p>4. Verdict — Jury—Empaneling—Oath.</p> <p>If a jury be sworn to try the issue, and several issues have been joined, and the verdict of the jury is responsive to them all, the appellate court will disregard such irregularity, and will consider all the issues as decided by the verdict.</p> <p>2. Reversal of Judgment — Instructions—Matters not Apparent on Record.</p> <p>Where the court refuses an instruction to the jury, the appellate court will not reverse the judgment, unless enough of the evidence has been set out in the exception to show the relevancy and Xiropriety of the instruction, because error must affirmatively appear; and for the same reason, if the court gives the instruction, before the appellate court will reverse the judgment, the record must show the instruction wrong, or that it could not in any aspect of the case be properly given.</p>

<p>Appeal — Justice op the Peace — Trial de novo.</p> <p>According to the constitution of this State the judgment of a justice rendered upon the verdict of a jury in an action in tort or for damages, whether defence was made thereto or not, can not be tried de novo by the Circuit Court; and an appeal allowed in such case will be dismissed as improvidently awarded.</p>

<p>1. Arread — Justice of the Peace — Maítdamus.</p> <p>Where a judgment has been rendered by a justice upon the verdict of a jury, the Circuit Court can not, by mandamus, compel the justice to grant an appeal from said judgment; the Constitution forbidding any appeal in such case.</p> <p>2. Certiorari — Procedure.</p> <p>A case in which it is held that a petition for mandamus could not be sustained as a proceeding by certiorari.</p>

<p>1. DemuRRER — Creditors’ Bile — Pendency op Another Bill.</p> <p>Where a lien-creditor brings suit to subject the real estate of his debtor to the payment of his debt, the fact that his bill avers that there is then pending a suit by another creditor, to subject the same real estate to other debts, is not ground for sustaining a demurrer to such bill. (p. 473.)</p> <p>2. BANKRUPTCY — ASSIGNEE’S SALE OP BEAL ESTATE — INCUMBRANCES.</p> <p>Where the real estate of a bankrupt is incumbered by liens or otherwise, the assignee of the bankrupt may sell it under the United States bankrupt act, either subject to the incumbrance, or absolutely and free therefrom. But in the latter case he must, before selling, obtain from the bankrupt court an order for that purpose; and, if he sells the property without such order, he can only sell it subject to the incumbrance, and the purchaser will get no better title than the bankrupt had; that is, he will take it subject to the incumbrance, (p.474.)</p>

<p>1. Damages — Defects—Liability of County — Public Boad.</p> <p>To render a county liable for an injury sustained on a public road or Highway, the defect in the road, either alone or combined with some matter of pure accident for which the plaintiff was not in fault, must have been the sole cause of injury.</p> <p>2. Damages — Contributory Negligence.</p> <p>A traveler on a public road must exercise at least ordinary care and caution. No recovery can be had by the plaintiff in an action against a county where his negligence in any degree contributed to the injury, unless the defendant being aware of the plaintiff’s danger and having the opportunity to avert it fails to use ordinary caution to do so. If the plaintiff voluntarily incurs danger so great that no sensible or reasonable person would have incurred it, in the absence of negligence on the part of the defendant that exhibits a design or intention to wantonly injure him, he will be precluded from a recovery.</p> <p>3. Damages — Public Eoad — Contributory Negligence.</p> <p>Where the defect or obstruction in the road is merely a remote cause of the injury, and the want of care or negligence of the plaintiff is the direct or proximate cause of the injury, the plaintiff can not recover.</p> <p>4. Damages — Public Eoad — Contributory Negligence.</p> <p>A case in which it is held that where the facts proved show that the plaintiff, sitting in his buggy, drove upon a visible and dangerous land-slide in the road, and thereby his buggy was upset, and he was injured, the plaintiff is not entitled to a verdict; and if one is found for him by the jury the court should set it aside.</p>

<p>1. Declaration — Common-Law—-Pleading—Waste—Trespass.</p> <p>A count in a declaration for trespass on real estate which alleges, that “the defendants cut and removed all the timber from the land, including oak, poplar, pine, walnut, etc., of the value of $3,000.00,” without specifying the number and value of each kind of trees, is sufficient.</p> <p>2. Declaration — Sight of Action — Waste—Trespass—Judicial Sale — Rights,/)!? Purchaser.</p> <p>Where a count alleges, that before a judicial sale and before its confirmation a party cut and destroyed timber on the land purchased, the purchaser so alleging such matter shows no right of action.</p> <p>3. 'Declaration — Demurrer—-Common-Law—Pleading.</p> <p>Where there is a count in a declaration which contains matter, which will sustain the action, and also.matter, upon which no recovery can he had, and there is a demurrer to the whole count, the demurrer must he overruled ; hut 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 eould he no legal recovery.</p>

<p>1. Possession — Adverse Possession — What Constitutes.</p> <p>An adverse possession depends upon the intention with, which the possession was taken and held. Wherever the act itself imports that there is a superior title in another, by whose permission, and in subordination to whose still continuing and subsisting' title, the possession is held, such possession can not be adverse to the owner of the legal title.</p> <p>2. Possession — Adverse Possession — Mortgage—Deed Absolute —Statute oe Limitations — STotice.</p> <p>Where a vendor conveys land by deed, which, though absolute on its face, is in fact a mere trust or mortgage, and he continues in possession after the conveyance, such possession will not be adverse to the title of the vendee. To make such possession adverse, and start the running' of the statute of limitations, there must be a disclaimer or repudiation of the trust-relation, and notice of that fact to the vendee.</p>

<p>1. Indictment — Joinder oe Offences — Quashing—Criminal Practice.</p> <p>If an indictment for felony contains different counts, which are in fact for separate and distinct offences, and this fact appears on the face of the indictment or on the opening of the case or at anytime before the jury is sworn for the trial thereof, the court may quash the same, lest it may confound the prisoner in his defence, or prejudice his challenges of the jury. (p. 495.)</p> <p>2. Indictment — Election.</p> <p>In such case, if the defect is discovered after the jury is sworn, and before the verdict is rendered, the court may require the prosecutor to elect on which count he will proceed to trial, (p. 495.)</p> <p>3. Indictment.</p> <p>But where the charges are of the same general character, and the counts are manifestly inserted to meet different phases of the evidence, the indictment will not be quashed, neither will the prosecutor be required to elect on which count he will proceed to trial.</p> <p>4. Indictment.</p> <p>An indictment contains two counts, one for breaking and entering the dwelling-house of another and another for breaking and entering at the same time the store-house of the same person. Reld, on motion to quash, that the indictment is good; also that the prosecutor will not be required to elect on which count he would proceed to trial, (qo. 496.)</p> <p>5. Indictment. — Record.</p> <p>In such a case, the record showing the prisoner was indicted for “ felony ” is sufficient, (p.496.)</p> <p>6. Indictment — Failure to Indorse Witness’ Name on Indictment.</p> <p>The statute directing the names of the witnesses, on whose evidence the indictment was found, to be written at the foot thereof, is directory, and the omission of such names does not vitiate the indictment, (p. 496.)</p> <p>7. Juries and Jurors — Striking prom the Panel — Constitutional Law.</p> <p>The statute passed by the Legislature at the extra session in 1887, permitting the prosecuting attorney to strike two jurors from the panel of twenty, and the prisoner six, is constitutional, (p. 498.)</p> <p>8. Juries and Jurors — Shbrifp—Custody op Jury.</p> <p>It is not necessary that a sheriff or his deputy having a jury in charge during a trial for felony, should every day be sworn to keep the jury together, etc., as there is no law that requires it. (p. 499.)</p> <p>9. Juries and Jurors — Siieripf—Disqualification of Sheriff.</p> <p>It is no disqualiflcation of the sheriff to take charge of a jury in a felony case that he is a witness either for or against the x>risoner in the case. (p. 499.) '</p> <p>10. Evidence — Joint Indictments.</p> <p>Where three were jointly indicted for a felony, and one was on trial, it is not an error, for which the judgment would be reversed, that the State was permitted to prove to the jury, that the other two were in jail charged with the commission of the same offence, (p. 499.)</p> <p>11. Evidence — Permitting J ury to Take Indictment to J ury Room.</p> <p>Where three were jointly indicted for a felony and one had been tried and convicted, and the verdict of “ guilty ” was written on the indictment, and on the trial of another one of the three the said indictment was taken by the jury to their room while they were considering their verdict, and the prisoner moved the court to send for the indictment and take it from the jury, and the court, denied the motion, held no error, (p. 499.)</p> <p>12. ATTORNEYS AT IjAW — LIMITING ARGUMENT OF COUNSEL.</p> <p>It. is in the discretion of the trial-court in a felony-trial as in any other to put a proper limit to the time of counsel in their arguments to the jury; a discretion with which the appellate court will not interfere, unless the time was made so short as to manifestly prejudice the rights of the prisoner, (p. 500.)</p> <p>13. Attorneys at Law — Improper Remarks of Counsel.</p> <p>Counsel necessarily must he allowed considerable latitude in the argument of a case, and, unless the court in a felony trial permits counsel for the State to so far transgress the rule of propriety as clearly to prejudice the prisoner, the judgment will not he reversed because of improper remarks by counsel made to the jury. (p. 501.)</p> <p>14. Burglary — What Constitutes. — Instructions.</p> <p>Where it appeared upon a trial for burglary that three persons much intoxicated went into a store and called for cider, which they drank and paid for, went out and came in again and called for more, which was poured out to them and delivered to them in glasses on the counter, and a pistol was discharged in the house, and they all went out leaving the cider in the glasses on the counter, and they returned and found the store lighted, it being about 10 o’clock at night, aud pushed against the door which was locked, and it broke open, and they went in, followed by other persons against whom there was no charge or suspicion, and therein the light and in the presence of the other persons drank the cider, the refusal of an instruction to the jury, that under these circumstances, if the defendants in good faith believed they had a right to drink the cider, that it was theirs, they did not have the intent to steal the same, is error, (p. 503.)</p> <p>15. Burglary — Intent.</p> <p>The breaking and entering the store-house on such a charge isnot sufficient, but it must also be shown on the trial of the indictment which charges it was broken and entered with intent to commit larceny, that the intent existed in the mind of the prisoner when he broke and entered the store-house, (p. 504.)</p>

<p>1. Juries and Jurors — Impanelling—Criminal Practice.</p> <p>When a jury is to be impanelled in a felony-case, it is not necessary to put the names of those summoned into a box and draw from such box the names of twenty jurors. The law is satisfied if the sheriff selects them. (p. 507.)</p> <p>2. Evidence — Trial—Admissions—COUP US DELICTI— Chimin al Practice.</p> <p>The admissions of the prisoner are competent evidence tending to prove the corpus delicti, (p. 509.)</p> <p>ó. Evidence — Statements Made on Preliminary Examination.</p> <p>No statement made by one accused of crime, while a witness testifying on his own behalf before a justice on his preliminary examination, can be used against him on his trial. Code, ch. 152, § 20. (p. 507.)</p> <p>4. Attorneys-at-law — Argument oe Counsel — Limitation as to Time.</p> <p>In a criminal trial the court has a discretion to limit the time to be consumed by counsel in their arguments to the jury, — a discretion with which the appellate court will not interfere, unless the record shows clearly that injustice was done the prisoner by such limitation. Under the circumstances of the case, held, that one and three quarter hours on each side was not an unreasonable limitation. (pp. 507, 508.)</p>

<p>Specific Performance — Parol Contract — Indefiniteness—Part Performance.</p> <p>Upon a bill filed by B. against S. to enforce the specific execution of a parol contract for the conveyance of a parcel of land sold by S. to B., described as “a certain piece of land containing 6734 acres, being the lower end of a certain survey sold and conveyed to S. by W., and adjoining the lands of H. and of R., in the district of F., in the county of G-., in the State of W. Va.,” shown by extrinsic evidence to contain 117 acres, Held.</p> <p>I. That the 'description of the boundaries of the 67)4 acres, as described in said parol contract, is too vague and indefinite to authorize a court of equity to enforce the specific execution thereof, and that the bill filed for that purpose should be dismissed.</p> <p>II. That such a bill can not be maintained upon the ground of part performance sufficient to take the same out of the statute of frauds; for that character of bill will only lie, where the contract could have been enforced without such part performance, if the “ same or some memorandum or note thereof had been in writing and signed by the party to be charged thereby or his agent.”</p>

<p>1. Fraudulent Conveyances — Husband and Wife — Vendor’s Lien.</p> <p>Where a vendor, by executory contract, sells real estate to an insolvent husband, who, after he has appreciated the value of the property by erecting a house thereon, requests the vendor to convey the same to his wife, in order to avoid the payment of a debt, and the vendor, with notice of this purpose, conveys the property to the wife, retaining in the deed a vendor’s lien for the unpaid purchase-money, such conveyance and retention of lien therein will be fraudulent and void as to the creditors of the husband; and the lien so retained will be held subordinate to the debts of such creditors. But, as between the wife and the vendor, such lien will be held binding and enforced in a court of equity, even though it includes items not originally a part of the purchase-money for the real estate.</p>

Statement of the case by Gkeen, Judge : In 1855 Jacob Morgan died leaving a will, whereby he devised to his wife one third part of his estate, real and personal, during her natural life, and upon her death the same to be equally divided among all his children. He bequeathed to his daughters Elizabeth B. and Mrs. Anne McEndree, each, the sum of $3,000.00, and to his daughter Ann H. F. Boteler $600.00 in addition to what he had already advanced her.

Statement of the case by GREEN, Judge : On March 24,1883, Elizabeth G. Kennedy and Martha E. Gray of the city of Baltimore, E. Boyd Pendleton and Lucinda, his wife, of West Virginia, Charlotte R. Pendleton and Alexander R. Pendleton of Virginia entered into a ■written agreement with one James A. Buchanan of Baltimore, Md., with reference to the sale and purchase of 6,000 acres of land lying partly in Berkeley county and partly in Morgan county, W. Ya.

<p>1. Parties — Trusts and Trustees — Equity—Setting Aside Conveyance.</p> <p>Where a son holds lands as trustee for his father, to convey to whom the father may direct, and the father directs him to convey it to another, when a certain contractto support him shall be executed and delivered by that other person, and such person by representing to the trustee, that he has executed and delivered such contract, procures the deed to be executed, such conveyance can not be cancelled by a court of equity without having the trustee before the court, (p.565.)</p> <p>2. Paxíties — Trusts and Trustees — Appeal—Reveesal.</p> <p>In such case in the absence of the trustee the appellate court will reverse the decree cancelling the deed and remand the cause to have the trustee made a party, (p. 566.)</p>

<p>1. Partition — By Parol — Execution or Deeds.</p> <p>A parol partition of land, acquiesced in for a long time by the parties', can not be disturbed; but suit may be maintained to ascertain the precise terms, on which it was made, and to have deeds of partition executed, (p. 569.)</p> <p>2. Partition — Eight of Way — Decree.</p> <p>Where a parol partition provided for a right of way over one of the lots without specifying, where it should be located or the width thereof, a decree fixing its width at four feet and its location at the end of the lot did not prejudice the owner of the lot. (p. 571.)</p> <p>3. Beversal of Decree.</p> <p>Where the decree sought to be reversed is based upon depositions, which are so conflicting and of such a doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them or the proper conclusion to be deduced therefrom, the appellate court will decline to reverse the decree, although the testimony may be such, that the appellate court might have rendered a different decree if it had decided the cause in the first instance, (p. 571.)</p>

<p>1. Statute oe Limitations — Judgment-Lien—Evidence.</p> <p>To avoid the bar of the statute of limitations in respect to the right to euforce the lien of a judgment, the creditor must bring his case within one of the exceptions declared in the statute, and he can not by parol evidence or otherwise avoid such bar upon any ground not embraced in the statute, (p. 574.)</p> <p>2. Statute oe Limitations — Parol Agreement to Extend Time —J ud gment-Lien .</p> <p>In a suit to enforce the lien of a judgment against real estate brought more than ten years after the return-day of the last exe-eution issued thereon the creditor can not avoid the har of the statute by a parol agreement binding him not to sue out execution or enforce the judgment until within ten years before the bringing of such suit. (p. 575.)</p> <p>3. Statute of Limitations — A void an oa by Issuance of Execution —Judgment-Lien. s</p> <p>Where an execution has been issued upon a judgment more than ten years after the return-day of the last preceding execution issued thereon, and a suit is brought by the creditor to enforce the lien of such judgment against the real estate of his debtor, the issuance of such execution will not avoid the bar of the right to enforce such lien, notwithstanding the said execution is merely voidable and not liable to be assailed in a collateral suit. (p. 575.)</p>

<p>1. Deed — Grantoi- and Grantee — Disinheriting Only Child.</p> <p>Where the legal capacity of a grantor to make a deed is shown, and there is no fraud or undue influence established, he has the legal right to make an unjust, unnatural or unreasonable conveyance of his property. A conveyance, which wholly disinherits his only child, made upon a meritorious consideration alone, will not for that cause, of itself, be held invalid, (p. 581.)</p> <p>2. Deed — Grantor and Grantee — Fraud—Undue Influence.</p> <p>Confidence in a grantee, and influence acquired by him over a grantor, by reason of acts of kindness and attention, do not in law constitute fraud or undue influence; and the fact that the grantee possessed such confidence and influence will not, of itself, vitiate a conveyance made by the grantor to such grantee, (p. 583.)</p> <p>3. Deed — Grantor and Grantee — Fraud—Undue Influence — Evidence.</p> <p>A case in which a bill filed by a son to set aside conveyances, embracing all-the real estate of his mother, to two of her nephews, made shortly before her death, upon the grounds that the mother was mentally incompetent to make the conveyances, and they were Induced by the fraud and undue influence of the grantees, is held not to he sustained by the evidence in the cause, (p. 584.)</p>

Statement of the case by Woods, Judge : James M. Headley by deed dated September 8,1884, conveyed to his father, Stephen H. Headlee, his store and dwelling-house and lot in Monongalia county and assigned, ti’ans-ferred and delivered to him his whole stock of goods, wares and merchandise and other articles in said storehouse including all his book-accounts, notes, claims or demands, all his household and kitchen furniture and one buggy, horse and harness to secure the…

<p>1. Specific Performance — Chancery Practice — Foreign Corporation — Service.</p> <p>In this State a personal decree may be rendered for specific performance against a foreign corporation, upon which actual service has been had within the State under the provisions of our statute. (p. 606.)</p> <p>2. Specific Performance — Chancery Pleading — Mutifariousness.</p> <p>A bill that asks a specific performance against one defendant and to enjoin a suit for unlawful detainer brought by other defendants claiming under title from the same party, against whom specific performance is sought, is not multifarious, (p. 606.)</p>

<p>1. Pkqhibition, Writ of — Ministerial Tribunals.</p> <p>The writ of prohibition lies from a superior court not only to inferior judicial tribunals properly and technically so denominated but also to inferior ministerial tribunals possessing incidentally judicial powers, such as are known in- the law as quasi judicial tribunals, and even in extreme cases to purely ministerial bodies, when they attempt to usurp judicial functions, (p. 614.) .</p> <p>2. Prohibition, Writ of — Jurisdiction—Supreme Court of Appeals.</p> <p>The Supreme Court of Appeals has concurrent original jurisdiction with the Circuit Courts in all cases of habeas corpris, mandamus, and prohibition, (p. 614 )</p> <p>3. Prohibition, Writ of — Jurisdiction—Supreme Court of Appeals.</p> <p>By a rule adopted by the Supreme Court of Appeals in this State it will not take such original jurisdiction, unless special reasons appear therefor; hut, when such reasons are made to appear, it will without hesitation exercise its jurisdiction, (p. 616.)</p> <p>4. Prohibition, Writ of — Unlawful Exercise of Judicial Powers.</p> <p>Prohibition lies only in ease of the unlawful exercise of judicial functions. Acts of a mere ministerial, administrative or executive character do not fall within its province, (p. 617.)</p> <p>5. Prohibition, Writ of — County Commissioners — Elections— Board of Canvassers.</p> <p>While many of the acts of the commissioners, sitting as a hoard of canvassers after an election, are merely ministerial, they are not all so; and where such tribunal clothed by the statute with both ministerial and judicial powers is merely exercising its ministerial functions, to its action in such matters prohibition will not lie; but, when it is exercising its judicial functions and is proceeding in excess of its judicial powers or is usurping judicial powers, which do not belong to it, to such action a writ of prohibition will lie. (p. 617 et seq.)</p> <p>6. Prohibition, Writ of — Errors of Board of Canvassers.</p> <p>Mere errors and irregularities of such commissioners proceeding within their jurisdiction, are not subject to prohibition, (p. 619.)</p> <p>7. Prohibition, Writ of — County Commissioners — Elections— Board of Canvassers.</p> <p>■ Where commissioners were assembled under our statute in special session after an election to canvass the votes cast, and the question was presented to them, whether the precinct-commissioners, canvassers and clerks at a certain voting-place were sworn, such question was within their jurisdiction, and, whether on the evidence before them their decision was correct or incorrect, it could not be the basis for an application for a writ of prohibition. (p. 618.)</p>

<p>1. Injunction — Waste.</p> <p>A contingent remainder-man may maintain an injunction to restrain waste by the life-tenant.</p> <p>2. Wills — Construction—Liee-Estate.</p> <p>Where the will gave to a devisee in clear and express words a life-estate only, and in the codicil provided, that moneys paid to the executor on ‘1 obligations owing to the testator should be invested in bonds of the United States, the interest of which should go to said life-tenant, and such life-tenant should likewise have the profits of the testator’s estate not given to his wife,” by the use of this language he did not change the life-estate into a fee.</p> <p>3. Wills — Charities—Bequests to Foreign Corporations.</p> <p>Foreign corporations may take bequests of charities under a will made in this State, when and to the extent authorized by their charters.</p> <p>4. Wills — Ambiguities—Description oe Legatees — Evidence.</p> <p>When such corporations are improperly described in the will, the bequest will not fail, if it be clearly shown by proper proof what corporations were meant by the description.</p> <p>5.Waste — Brick-Making.</p> <p>Taking clay from the soil by a life-tenant, and manufacturing the same into brick and selling the same is waste.</p>

<p>1.County-Commissioners — Board of Canvassers — Circuit Court —CEBTIOBABI—Elections.</p> <p>The rulings of the commissioners of a county sitting as a board of canvassers after an election to ascertain the result thereof in the county are subject to review by the Circuit Court on writ of certiorari, (p. 640.)</p> <p>2.County-Commissioners — Board of Canvassers — Elections— Candidates — Bill of Exceptions.</p> <p>Any candidate voted for at said election has the right by himself or attorney to be present at the count of the votes and request the commissioners to give him bills of exceptions to their rulings against him; and he thus becomes a party to the proceedings and has the right to have the rulings of such commissioners reviewed on certiorari, (p. 641 et seq.)</p> <p>3. County-Commissioners —Board of Canvassers — Elections— Certificate of Election.</p> <p>Although the whole matter may be reopened by the tribunal, which may try a contest for an office, yet the person really elected has the right to have the certificate of election given to him by the canvassers or proper evidence of the correct number- of votes he received, to be presented to the officer having the right and by law required to give the certificate, (p. 645.)</p> <p>4. County-Commissioners — Board of Canvassers — Bill of Exceptions— MAN DAM US.</p> <p>If the commissioners of the county sitting as a board of canvassers after an election refuse to sign bills of exceptions to their ruling, when requested to do so by a candidate voted for at the election, they will be required by mandamus to settle and sign such hills of exceptions. . (p. 646.)</p> <p>5. County-Commissioners — Board of Canvassers — MANDAMUS.</p> <p>When in such case a petition praying a mandamus is filed, it is right and proper for the court issuing the rule or alternative writ of mandamus to issue an order inhibiting the commissioners until the further order of the court from finally adjourning or certifying the result of the election, so that the peremptory mandamus, if issued, will be effective; and, when the court is informed that the mandamus has been obeyed, the inhibition should he wholly removed, (p. 648.)</p>

<p>1. NUISANCE — ANNOYANCE OE NEIGHBORS — MALICE.</p> <p>While certain acts done by a person in the use of his premises as a dwelling-house might not in themselves amount to a private nuisance, yet when the same acts are done wantonly and maliciously for the mere purpose of annoying his neighbor and to destroy the peace and quiet of his home, and they have such effect, they may amount to a nuisance, which a court of equity will restrain. (p. 657.)</p> <p>2. Nuisance — Injunction—Domestic Bboils.</p> <p>Where two families are occupying rooms in the same house, using in common the halls and stairways, a court of equity will not restrain the one from committing a nuisance against the other, unless the proof of the existence of such nuisance is clear and strong. A court of equity will, as far as it can, discourage a resort to its aid for the purpose of interfering in mere domestic broils, (p. 657.)</p> <p>3. Nuisance — Injunction—Domestic Bboils.</p> <p>He who comes into a court of equity must come in with clean hands; therefore, when there appears to he an unfortunate quarrel between two women, which involves the families of each, and both are in fault, a court of equity will not interfere to protect one against the other and enjoin as a nuisance what one does against the other, (p. 651.)</p>

<p>1. Will — DEVISAVIT VEL NON — Burden of Proof — Argument of Cause.</p> <p>Upon an issue devisavit vel non the proponents of the will have the affirmative of the issue and the right to open and conclude the argument, (p. 666.)</p> <p>2. Will — Proof of Will — Evidence—Rebuttal.</p> <p>In the trial of an issue devisavit vel non it is not improper for the proponents to offer the will and the evidence of its due execution and the competency of the testator at the time it was executed, and thus having made a prima facie ease to rest; and after the contestants have offered their evidence against the validity of the will, it is proper to permit the proponents to offer other evidence to sustain the will as well as evidence in rebuttal, (p. 667 et seq.)</p> <p>3. Wills — Evidence.</p> <p>Upon the trial of such an issue the general question put to a witness: “Was there any one who influenced the testator ?” is improper. (p. 669.)</p> <p>4. Wills — Witness—Competency of Heir.</p> <p>Under chapter 130, § 23 of the Code, a person, who but for the will would inherit a part of the testator’s property, is incompetent to speak of the testator’s capacity to make the will. (p. 669.)</p> <p>5. Evidence — Medical Expert — Wei&ht and Sufficiency — Witnesses.</p> <p>When a medical expert is asked to give his professional opinion to a jury not upon matters within his own knowledge but upon a hypothetical case founded upon the testimony of witnesses previously examined in the case, the questions to him must he so shaped as to give him no occasion to mentally draw his conclusion from the whole evidence or a part thereof, and from these conclusions so drawn express his opinion, or to decide as to the weight of evidence or the credibility of witnesses; and his answers must he such as not to involve any such conclusion so drawn or any opinion of the expert as to the weight of the evidence or the credibility of witnesses, (p. 669'ei seq.)</p> <p>6. Evidence — Hypothetical Case — Witnesses.</p> <p>The opinion of medical experts founded on testimony already in the case can only he given on a hypothetical case; and the hypothesis must he clearly stated, so that the jury may know with certainty, upon precisely what state of assumed facts the expert based his opinion, (p. 672.)</p> <p>7. Evidence — Assumption oe Facts — Witnesses.</p> <p>In putting hypothetical questions to expert witnesses counsel may assume the facts in accordance with their theory of them; it is not essential that they should state them as they exist; hut the hypothesis should he based on a state of facts, which the evidence in the cause tends to prove, (p. 672.)</p> <p>8. Wills — Reversal qe Decree — Error.</p> <p>Where on a trial of an issue devisavit vel non a medical expert was permitted to answer two improper hypothetical questions, which he did, fully covering the whole case, and the court refused to permit him to answer two proper hypothetical questions, which embraced no more than the two he was permitted to answer, and the party who asked these proper hypothetical questions was not and could not have been prejudiced by the error, the appellate court will not for such error reverse the decree and set aside the verdict, (p. 674.)</p> <p>9. Wills — Evidence—Reversal of Decree — Error.</p> <p>Where in the trial of an issue devisavit vel non the contestants on the question of the testator’s capacity offered a witness, who testified, that about three months before the execution of the will the testator had sold a property for $10,000.00, which was a very low price for it, and the iiroponents offered the purchaser of the property, who testified he had paid full value for it; and the contestants then offered a witness, who had occupied the property as lessee and testified he knew its value, and asked the witness: “What is the property worth?” and the proponents objected, and objection was sustained, and contestants excepted. Meld: If error, it was not such error as rendered the judgment liable to be reversed. (Johnspn, president, dissenting.) (p. 674 et seq.)</p> <p>10. Wills — Records—Evidence.</p> <p>The record of an inquisition de lunático inquirendo is admissible on the trial of an issue devisavit vel non; hut where the court refused to permit to he read on such an issue such portion of the order of adjudication, as instructed the committee appointed as to the scope of his duties, held, no error, (p. 676.)</p> <p>11. Wills — Stenographer’s Notes — Evidence.</p> <p>Where on the trial of such an issue a witness for contestants had testified, that the testator in giving his evidence in a certain action in ejectment was incoherent, and on cross-examination said he had the stenographer’s notes of his evidence in the action, hut that the stenographer was not sworn, hut the witness said the notes were substantially correct, and on motion the proponents, to contradict the witness, were permitted to read the notes to the jury, held, no error, (p. 677.)</p> <p>12. Wills — Former Will — Evidence—Capacity.</p> <p>On the trial of such issue a will executed in 1879, about two years before the will in issue, at which former date it is shown the testator was competent, is admissible on the question of his capacity at the time the will in issue was executed, (p. 678.)</p> <p>13. Wills — Business Transactions — Evidence—Capacity.</p> <p>Evidence of business transactions by the testator both before and after the execution of the will indicating his mental condition is admissible on the question of his capacity at the time the will was executed, (p. 678.)</p> <p>14. Evidence — Experts—Witnesses.</p> <p>The opinions of witnesses not experts are entitled to little or no regard, unless they are supported by good reasons founded on facts -which warrant them; but if the reasons and facts, upon which they are founded, are frivolous, the opinions of such witnesses are worth little or nothing, (p. 678.)</p> <p>15. Wills — Attesting Witnesses — Evidence.</p> <p>The evidence of witnesses who were present at the execution of the will is entitled to peculiar weight, and especially is this the case with attesting witnesses, (pp. 679, 680.)</p> <p>16. Wills — Capacity—Deed.</p> <p>It requires less capacity to make a will than it does to make a deed. (pp. 679,680.)</p> <p>17. Wills — Old Age — Evidence—Capacity.</p> <p>Old age is not of itself sufficient evidence of incapacity to make a will. (pp. 679, 680.)</p> <p>18. Wills — Capacity—Execution op Will. .</p> <p>The time to be looked to by the jury in determining the capacity of a testator to make a will is the time, when the will was executed, (pp. 679, 680.)</p> <p>19.' Wills — Capacity.</p> <p>It is not necessary that a person should possess the highest qualities of mind in order to make a will, nor that he should have the same strength of mind he may formerly have had; the mind may be in some degree debilitated, the memory may he enfeebled, the understanding may he weak, the character may he eccentric, and he may even want capacity to transact many of the ordinary business affairs of life; it is sufficient if he have mind enough to understand the nature of the business, in which he is engaged, to recollect the property, which he means to dispose of, the objects of his bounty, and the manner in which he wishes to distribute it among them. ' (pp. 679, 680.)</p> <p>20. Wills — Children—Capacity.</p> <p>In order to make a valid will it is not necessary, that the testator should name all his children in it or give each of them a portion of his estate. If he was mentally capable of understanding the disposition, which he was making of his property, and acted freely, it is immaterial to whom he gives his property, — whether all'to one or some of his children, or to strangers. If he has a disposing mind and memory, he has a right to do as he pleases with his property, (pp. 679, 680.)</p> <p>21. Wills — Children.</p> <p>Although the testator may perhaps have been influenced by feelings of resentment or dislike to one or more of his children, and by feelings of affection and attachment towards others, and though these feelings may have influenced him to give his whole estate to the one part, and little or nothing to the others, this is not sufficient to make the will invalid, (pp. 679, 680.)</p> <p>22. Wills — Attentions to Devisees — Undue Influence.</p> <p>If the provisions of the will were induced by the extreme kindness and attention to the testator on the part of the principal devi-sees, that will not constitute undue influence, which will invalidate the will. (p. 680.)</p> <p>23. Instructions — Weight of Evidence.</p> <p>It is improper to single out one witness, although he was the family-physician, and instruct the jury, that his evidence is entitled to great weight, (p. 681.)</p> <p>24. Instructions.</p> <p>Where an instruction has already been substantially given, the court is not bound to repeat it. (pp. 681.)</p> <p>25. Instructions — Assumption of Pacts.</p> <p>Where an instruction refers to a disease by a technical name, is confused in its parts, and assumes facts as proved, it is properly-refused. (p. 681, 682.)</p> <p>26. Wills — Capacity—Evidence.</p> <p>It is not necessary for proponents to prove that tlie testator actually recollected all Ms property, the object of his bounty ete.; it is sufficient, if he was at the time mentally capable of doing so. (p. 682.)</p> <p>27. Instructions — Assumption op Facts.</p> <p>An instruction was properly refused, which assumed that the evidence raised in the minds of the jury a doubt of the testator’s capacity, (p. 682, 683.)</p> <p>28. Instructions — Irrelevancy.</p> <p>An instruction should not he given unless relevant, and it is not relevant, unless there was evidence tending to prove the facts, on which the instruction is based, (p. 683, 684.)</p> <p>29. Jury — Discretion—Appeal.</p> <p>Submitting to the jury under the statute “ particular questions of Tact,” is within the discretion of the trial court. This is a reviewable discretion, (p. 684 et seq.)</p> <p>30. Jury — Special Findings.</p> <p>The question must he of such a character, that the answers thereto, if contrary to the general verdict, would control the same and he conclusive of the issue, (p. 685.)</p> <p>31. Jury — Special Findings.</p> <p>Under the statute the court did not err in refusing to submit to the jury the following questions: “(1) Was the late Lewis Luns-ford in August, 1880, suffering from a disease known as senile dementia? (2) If so, is that disease curable ? (3) Had that disease so far progressed in August, 1882, as to render him (Lewis Luns-ford) imbecile and incapable of transacting business ? (4) Does a person suffering from such disease have any lucid intervals?” (p. 685, 686.)</p> <p>32. Wills — Decree—DU VISA VIT VEL NON.</p> <p>When a final decree is pronounced in favor of a will on the verdict of a jury rendered on an issue devisavit vel non, the functions of the suit are exhausted, and the hill should he dismissed. In such suit the construction of the will cannot he involved, (p. 687.)</p> <p>33. New Trial — Newspaper Comment.</p> <p>The court will not set aside a verdict, merely because a newspaper during the trial made improper reference to the trial and the case. (p. 687.)</p>

<p>1. Executors and Administrators — Guardian AD LITEM — Parties — Partners and Partnership.</p> <p>S. II., owning a small personal estate, and seized in fee of a parcel of land charged with a lien in favor of his vendors for $525.00 having- conveyed the same in trust to S. A. G., trustee, and after-wards, by a second deed, conveyed the same in trust to J. W., trustee, to secure the several debts therein named, died intestate, leaving- surviving him his widow, C. H., and four children. For two years before, and at the time of the death of S. H., a partnership in a threshing-machine had existed between him and his brother J. F. H., and the social assets of the partnership consisted of the machine and the earnings of the partnership during its continuance. Said J. F. H. and O. H., the widow of S. H., became administrator and administratrix of his estate, the greater part of which passed into the hands of, and was administered by, J. F. II-., and the residue passed into and remains in the hands of the administratrix. Failing to sell to others the half interest of S. II. in said machine, it was taken by J. F. H., the surviving partner, at the price of $110.00 the highest bid offered for it. The trustee-, S. A. G., having advertised the land for sale according to the first deed of trust, the widow* C. H., filed her bill against him and the beneficiaries under said deed, the said infant children, heirs of S. H., and the said J. F. H., praying for a settlement of his administration accounts, and of the accounts of said partnership; that all debts and liabilities against the estate of said S. H. might be ascertained, and his iiersonal estate applied to the satisfaction thereof; and that, until this could be done, said trustee might be enjoined from selling said lands; but neither the trustee, J. W., nor the vendors of S. H., were made parties to the bill, nor was any guardian ad litem appointed for or answer filed by said infant defendants. Held: (1) That the trustee, J. W., as well as the vendors of S. H., deceased, were necessary parties to the suit. (2) That it was error to decree a sale of said infants’ lands without an answer filed for them by their guardian ad litem. (3) That the social assets of a partnership are first liable for the payment of all partnership debts, including the debts due by the partnership to its several partners. (4) That the proceeds of the sale of the half interest of 8. EL in said machine purchased by' J. J?. EL, the sur- • viving partner, at the price of $110.00, were social assets in his hands, and, as such, they were first liable to pay the said S. H.’s half of the partnership debst, including his half of the partnership debt due to said surviving partner, and that, so far as the same was necessary for that purpose, it should be so applied in the settlement of the accounts between the partners; and that only the residue thereof, if any, would be assets belonging to the estate of S. H., applicable to the payment of his individual debts. (5) That, in the settlement of the administration accounts of J. F. H., he ought not to be charged with any of the assets of the estate of his intestate which were received and retained by said administratrix, and which were never received or administered by him. (p. 698 et seq.)</p> <p>2. Executors and Administrators — Judicial Sale — Sale.</p> <p>It was error for the Circuit Court to decree a sale of the lands of the intestate for the payment of his debts until the administration accounts of all his personal representatives had been settled, and the amount and priorities of all debts and liabilities against his estate had been ascertained and decreed for, and until it had been ascertained what amount, if any, of his personal estate remained in the hands of his personal representatives applicable to the payment of his debt. (p. 699.)</p> <p>3. Judicial Sale — Sale</p> <p>It is error to decree the sale of the lands of a decedent for the payment of his debts without giving to his heirs a reasonable time within which they may pay said debts, and thus avoid a sale of their lands, (p. 700.)</p> <p>4. Reversal oe Decree — Judicial Sale — Sale.</p> <p>A decree in a suit brought to sell the lands of a decedent for the payment of his debts, which ascertains and declares the amounts and priorities of all debts and liabilities, and ascertains the amount of his personal estate remaining in the hands of his personal representatives applicable to the payment of said debts, but fails to make any application of the assets in the hands of his personal representatives, or fails to decree to his several creditors by name the sums ascertained to be due to them, respectively, and to fix the order of priority in which they are severally entitled to be paid, is erroneous and will for that cause alone be reversed, (p. 699.)</p>

<p>1. Judicial Sale — Recovery oe Money.</p> <p>Where money from the sale of property has by order of the court been paid, and the decree ordering its payment was void, the party, whose property was sold to raise the money, may recover the same from the party, to whom it was illegally paid.</p> <p>2. Repeal by Implication — Construction oe Statute — Special Provisions.</p> <p>A statute general in its terms and without negative words will not be construed to repeal by implication the particular provisions of a former statute, which are special in their application to a particular case or class of cases, unless the repugnancy is so glaring and irreconcilable as to indicate the legislative intent to repeal.</p> <p>3. Statute of Limitations.</p> <p>Chapter 102, Acts 1882 (the general limitation act) does not repeal by implication chapter 28, Acts 1872-73, providing for a special class of cases; and said statute is still in force.</p> <p>4. Statute of Limitations — Constitutional Law.</p> <p>Said act is constitutional when applied to an implied contract.</p> <p>5. Statute of Limitations — Rents and Pkofits.</p> <p>Where said act applies, a party may go back more than five years before suit brought in an account for rents and profits.</p>

<p>1. Eminent Domain — Condemnation oe Property to Public Us®.</p> <p>Whether the use, to which property sought to be taken under the exercise of eminent domain is public or private, is a judicial question subject to review by the appellate court, (p. 718.)</p> <p>2. Eminent Domain — Condemnation oe Property to Public Use —Evidence.</p> <p>Evidence, that all, who wish to avail themselves of the proposed switch, branch-road or lateral work, can do so, is not sufficient to show, that the use of the work will be for the benefit of the public, (p. 735.)</p> <p>3. Eminent Domain — Condemnation of Property to Public Use —Property oe Railroad Companies.</p> <p>The property of railroad corporations, so far as concerns the ownership thereof and the profit to be made from its use, is to all intents and purposes private property, although applied to a use in which the public have an interest, (p. 734.)</p> <p>4.Eminent Domain — Condemnation of Property to Public Use— Railroad Corporations — Property of Railroad Company.</p> <p>Where railroad corporations seek by the exercise of the right of eminent domain to take private property for public use, the public is concerned ; but as to their private interests — their property and profits — they stand as individuals or merely as private corporations, in which the public has no concern ; and for the benefit of such private interests the right of eminent domain can not be invoked. (p. 734.)</p> <p>5.Eminent Domain — Condemnation oe Property to Public Use —Switch to Manufactory. '</p> <p>Where a railroad corporation sought to condemn land, over which to build a switch, branch-road or lateral work to reach a private manufactory, a steel mill, for the purpose of transporting freight to and from said steel-mill over petitioner’s road, held, the use, to which the land was to be subjected, was a private not a public use. (p. 735.)</p>

Statement of the case by Woods, Judge : This is a suit in chancery brought on the 31st January, 1884, in the Circuit Court of Kanawha county, by John F. Weaver and W. W. Betts, partners composing the firm of Weaver'& Betts, and William Beading and R. C. Reading, composing the firm of Emery & Reading and Franklin Reading, plaintiffs, against Levi Gay, administrator of John Burr, deceased, Catherine Burr, his widow, and Charles W. Burr, Mary E. Smith, John Smith, Rebecca Dean,…

<p>1. Mandamus — Discretionary Authorirty.</p> <p>By an order of the County Court duly authorized by a popular vote a county subscribes $250,000.00 in its bonds to the capital- ■ stock of a railroad company, to be expended on that portion of the road located within the county, and appoints three citizens of the county a committee to take charge of the bonds and deliver the same to the company in such amounts, as in their judgment will be at the time a fair compensation to the company for the work then done in the construction of that part of the road located within the county. The company completes the road through the county, and during its construction all the bonds except $8,100.00 are delivered to the company; but before the completion of the road the County Court makes another order requiring the bonds still undelivered to-be countersigned by the president of the County Court and his concurrence and approval, before the bonds are delivered. In response to a demand made by the company upon the committee for the residue of the bonds they report, that they are satisfied that the company is entitled to the said bonds, and that they will be deliverd upon the signing of their report by the president of the County Court ; and the latter refuses to sign the report, because in his judgment the company has not done the amount of work in the county to entitle it to the bonds. JHeld:</p> <p>Mandamus will not lie in such case to compel the president of the County Court to countersign and deliver said bonds either to the committee or the company, (p. 786.)</p> <p>2. Mandamus — Discretionary Authority.</p> <p>While mandamus will lie to compel the exercise of a discretionary authority, it will not lie to control the exercise of it or compel a particular decision, (p. 789.)</p>

<p>1. Domicile — Change oe-Kesidence — Intent.</p> <p>Where a person entirely abandons his former residence in one State with no intention of resuming it and goes with his family to another residence, which he has rented in another State, with the intention of making the latter his residence for an indefinite time, the latter State is his domicile notwithstanding the fact, that, after he and his family arrive at the new residence, which is only about a half a mile from the State line, they go on the same day on a visit to spend the night with a neighbor in the former State intending to return in the morning of the next day, but he is detained there by sickness, until he dies, and never does in fact return to his new home. (pp. 796, 797.)</p> <p>2. Domicile — Conflict of Laws — Distribution of Property.</p> <p>The laws of the State, in which the domicile of a decedent is at the time of his death, control and govern the distribution of his personal estate, although he may die in another State, (p. 797.)</p>

I. A stockholder may sue to protect the corporation and to compel an account in Wesl” Virginia : (a) in any case, in which “sufficient cause is shown therefor,” Code, ch. 53, sec. 58 ; (b) in any case, in “ which there is danger of the loss or misappropriation of the corporate property or a material part thereof.” Code, ch. 133, sec. 28. This right is expressly conferred on a stockholder by the statute quoted.

<p>Trusts and Trustees — Void for Uncertainty — Eights of Beneficial Owners.</p> <p>Where reai estate purchased with money contributed by individuals is by their direction conveyed by the vendor to trustees, to beheld upon trust for a parsonage for the use of the ministers of a church, and after the property has been so used for many years the trust is declared inoperative and void for uncertainty- — Held—(1) The property does not revert to the grantor; nor can the grantees hold it for their own personal use and benefit. (2) The individuals, who contributed the purchase-money, are by resulting trust in their favor the beneficial owners of the property and have a right in equity to have the property sold, and the proceeds paid to them in proportion to the sum contributed by each to tile pureliase-money. (3) The property having been held by the trustees not for the use of themselves hut for the use of the church, -which is incapable of taking or acquiring title to it, no lapse of time however long continued will bar the right of the beneficial owners to said property.</p>

Statement of the case by GtieeN, Judge : This was an action brought in the Circuit Court of Ritchie county on the following bond: “ State of West Virginia, Ritehie County, to-wit: Know all men by these presents, that we, Toliver Dotts and Thomas E. Davis, are held and firmly bound unto the State of West Virginia in the penal sum of fifteen hundred dollars, for the' payment whereof, well and truly to be made, we bind ourselves, our heirs and executors and administrators,…

<p>Set-Off — Landlord and Tenant — Lease.</p> <p>Upon the contract for a lease of a farm made by the lessor in his lifetime for a term of years the rent accruing from such lease after the death of the lessor can not be set off by a debt due to the tenant from the lessor at the time of his death, although the estate of the lessor is insolvent.</p>

<p>1. Corporations — Tort Committed after Expiration of Charter.</p> <p>A private business corporation, duly chartered and organized under the laws of this State, which failed to wind up its business when the time fixed by its*,charter for its duration expired, but continued thereafter in its charter name to carry on its corporate business, may be sued in a coui-t, of law in its corporate name for a tort committed by it after its charter had expired.</p> <p>2. Corporations — Common-Law Pleading.</p> <p>In such case a plea that the charter of the corporation had expired, and that it had ceased to exist in law at the time the alleged cause of action arose, will be held bad, because it does not also aver that the corporation had wound up its business, and ceased to exist in fact as well as in law.</p>

<p>1. Evidence — Reversal oe Judgment.</p> <p>The plaintiff in this case testified that she was a widow and had six children. Held : This testimony was immaterial and irrelevant to the issue, hut, inasmuch as it appears, that the damages found by the jury are not in excess of what was fully warranted by the legitimate evidence this, under the special circumstances of this case is not a reversible error, (p. 817.)</p> <p>2. Contributory Negligence — Municipal Corporations — Sidewalks.</p> <p>A person, who uses a sidewalk or other highway, which his observation prudently exercised would inform him was dangerous, takes the risk of such injuries, as may result to him by open and apparent defects, such as his observation ought to have detected and avoided; but, if the injury does not result from these but from another and latent defect, which no reasonable degree of prudence or care could detect, he will not be considered as taking the risk of injury from this latent defect, (p. 848.)</p> <p>3. Evidence — Municipal Corporations — Question eor Juey — Con-TRIBUTOEY NEGLIGENCE.</p> <p>In an action against a city for injuries caused by a defective sidewalk it appeared, that the plaintiff knew, that the sidewalk was out of repair and dangerous; and it also appeared, that the injury to the plaintiff was not necessarily caused by the open and apparent defects in the sidewalk or any want of due care on her part but may have been caused by a latent defect, for which the city was responsible, and which the plaintiff could not have detected by any reasonable prudence or care. Held : It was proper to submit the plaintiff’s evidence showing these facts to the jury, and to refuse the motion of the defendant to strike out said evidence, (p. 849.)</p>

<p>1. INSURANCE — Demurrer—Common-Law Pleading.</p> <p>In an action by a husband for the use of his wife on a policy of insurance, which described the property insured as the plaintiff’s and contained a provision that, if the insured is not the absolute owner of the property, it must be so expressed in writing in the policy, otherwise the insurance as to such property shall be void; the declaration was in the form prescribed by our statute, (section 61, ch. 125, Code); the plaintiff at the instance of the defendant filed a particular statement of the facts he expected to prove at the trial, among those facts he stated, that the insured property belonged to his wife, and that he so informed the agent of the defendant, at the time the insurance was procured, but that said agent contrary to his instructions and without his knowledge made out the policy in his name instead of that of his wife; the defendant then demurred to the declaration and this statement; Held : (pp. 853-4.)</p> <p>I. If the defendant desired to test the legal sufficiency of the plaintiff’s case as thus presented, his demurrer was the proper proceeding.</p> <p>II. The plaintiff had the right to sue on his policy in his own name for the use of his wife.</p> <p>III. The Circuit Court improperly sustained said demurrer.</p> <p>2. Insurance — -Principal and Agent — Undisclosed Principal— Contract — Evidence.</p> <p>Where a contract not under seal is made hy an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it,- and parol evidence is admissible to enable the principal to show, that he is the real contracting party, (p. 854.)</p> <p>3. Insurance — Agent—Contract—Application.</p> <p>An agent of an insurance company authorized to procure policies of insurance and forward applications for acceptance to the company must he deemed the agent of the company in all he does in preparing the application or in any representation, which he may make as to the character or effect of the statements therein contained; and this rule is not changed hy a stipulation inserted in the policy subsequently issued, that the acts of such agent in making out the application shall he deemed the acts of the insured, (p. 856.)</p>

<p>1. Bailment — Carrier—.SX OONTRAOTTJ— Common-Law Pleading.</p> <p>In an action for goods lost by a bailee it is generally optional with the plaintiff to declare against the bailee in form ex contractu or in tort; but in whatever form he may frame his declaration, the action is still one of contract, whenever the liability of the defendant in fact arises out of a contract, (p. 860.)</p> <p>2. Bailment — Carrier—Degree oe Oabe.</p> <p>Bailments for the benefit of the bailor depositum or mandatum are founded upon express contract and require the assent of the bailee to make him responsible. In such case the bailee is required to use only slight care, and he can be made liable only for fraud or gross negligence, (p. 860.)</p> <p>3. Evidence — Letters—Common-Law Practice.</p> <p>The plaintiff against the objection of the defendant was permitted to read in evidence to the jury a copy of a letter written by him (the plaintiff) to the defendant, which purported on its face to be in reply to a letter written by the defendant to the plaintiff, without offering to read also the letter, to which it was a reply. Held: Error. If the plaintiff put this copy in evidence, he should also have put in the letter, to which it was an answer, and not have left it to the defendant to call for and put in the letter to the plaintiff; especially when the said copy was offered in part to establish a contract by correspondence, (p. 862.)</p>

<p>1.Trusts and Trusters — Evidence—Conveyance to Son.</p> <p>Where a father purchases land and has it conveyed to his son, the presumption is, that the purchase was intended to be an advancement or gift to his son, and no trust results in favor of the father. But extrinsic evidence either written or parol is admissible on be- . half of the father to rebut this presumption and to show, that a trust results in his favor, (p. 869.)</p> <p>2.Specific Performance — Cancellation of Deed — Fraud—PAS-TIG EPS DOLL</p> <p>Where a contract has been made to accomplish a fraudulent purpose, a court of equity will not at the suit of a party to the fraud, — a particeps doli, — if the contract is executory, either compel its execution or decree its cancellation, nor, after it has been executed, set it aside and thus restore to the plaintiff the property or other interest, which he has fraudulently transferred. It will leave the parties in the position, in which they have placed themselves. (p. 870.)</p> <p>3. Specific Performance — Rights of Heirs — Fraud.</p> <p>This rule applies not only to the original parties to the fraudulent transaction but also to their heirs and to all parties claiming under or by title derived from them, where no equitable rights intervene to protect such parties, (p. 871.)</p> <p>4. Specific Performance — Evidence—Fraud—Advancement.</p> <p>A father purchased real estate, and had it conveyed to his son by an absolute deed. In a suit in equity by the heirs after the father’s death to set up a resulting trust in their favor they cannot be permitted to show, that the conveyance to the son was made for a fraudulent purpose by the father, in order to rebut the presumption, that it was an advancement or gift to the son. (p. 872.)</p>