Volume 32 — West Virginia Reports

<p>1. JURISDICTION — INJUNCTION.</p> <p>A court of equity has no jurisdiction to enjoin the Secretary of State from delivering to the speaker of the House of Delegates the sealed returns of an election for' Governor properly transmitted to him, and such injunction, if granted, will be treated as a nullity, (pp. 3-6.)</p> <p>2. JURISDICTION —INJUNCTION —MANDAMUS — PROHIBITION — SUPREME Court.</p> <p>This Court will not award a writ of prohibition against a Circuit Court to prohibit it from proceeding by mandamus to compel the Secretary of State to deliver such returns, on the petition of a party, who alleges no other ground or interest in the matter than the fact, that he is the plaintiff in said injunction-suit, and that the Circuit Court has ignored his injunction, although it appears, that said court had no jurisdiction to award said mandamus. (p. 6.)</p>

<p>1. Nuisance — Injunction—Public Road.</p> <p>An individual can not enjoin a public nuisance, such as the obstruction of a road, unless it works special and peculiar injury to him, and that injury must not be trivial, or such as may be compensated in damages, but must be serious affecting the substance and value of the plaintiff's estate. The first point of syllabus in Bridge Co. v. Summers, 13 W. Va. 47G, reaffirmed, (p. 8.)</p> <p>2. Public Road — Usee—Dedication.</p> <p>Mere user of a road will not make it a public road, under section 31, c. 43, Code 1887. The user must be accompanied either by an order of the County Court recognizing it in some way as a road, or the road must be worked by a surveyor as such. Dedication by the land-owner, though accompanied by public user, will not make it a public road, unless the dedication be accepted either by the County Court in its order-book or by a surveyor’s working it. (p. 10.)</p>

<p>1. Husband and Wife — Resulting- Tbust.</p> <p>Queere, whether a resulting trust arises in favor of a wife, if the husband acquires property with her separate estate, and without her knowledge and consent takes title in his name. If so, the proof must be clear and explicit to establish that fact especially against husband’s creditors.</p> <p>2. Husband and Wife — Resulting Tbust.</p> <p>Long lapse of time will defeat its enforcement, (p. 16.)</p> <p>3. Husband and Wife — Resulting Tbust.</p> <p>It must arise at the time the title is taken. No subsequent oral agreement or payment will create it. (p. 17.)</p> <p>4. Husband and Wife — Resulting Trust.-</p> <p>The wife is incompetent to prove any transaction or communication personally between herself and her husband going to create or sustain the trust or any admissions by him of its existence, not only as against his heirs, but also his creditors seeking to subject the property. (p. 20.)</p> <p>5. Answeb — New Matteb- -Reply — Common-Law Pleading.</p> <p>An answer containing new matter calls for reply in writing under secs. 35, 36, ch. 125 Code only when such new matter in its nature, as applied to the cause, calls for affirmative relief against some of the parties and is not simply matter of defence of plaintiff’s case; and it may by its matter call for such reply only from certain of the parties and not from others, or only as to part of its matter and not as to the residue thereof, (p. 19.)</p> <p>6. Parties.</p> <p>The personal representative must be a party before debts can be decreed against a decedent’s estate, (p. 20.)</p>

<p>EVIDENCE — Set-Off.</p> <p>B. Executed and delivered to P. a writing in these words: “I this day agree to pay Wtn. R. Pasley all the money, that Jesse Pasley’s timber comes to after deducting out all the money, that Jesse Pasley * * * * owes me.” At the time this writing was executed, B. had been garnished in a Kentucky court by a creditor of Jesse Pasley and was subsequently by the judgment of said court compelled to pay said debt to said creditor. In an action of assumpsit by P. against B. on said writing the record in said Kentucky suit is admissible in evidence to prove the payment of the amount, for which he was so garnished as a set-off against the claim of the plaintiff.</p>

<p>1. Fraudulent Conveyances.</p> <p>In a suit by a judgment-creditor to set aside a deed as fraudulent it is error to set the deed aside in toto, as it is valid and binding between the parties to the fraud and only void as to creditors, (p. 28.)</p> <p>2. Record.</p> <p>A judgment-creditor in his bill to enforce his judgment lien alleges, that he files as part of his bill copies of-his judgment and of the lien-docket marked “ Exhibit B ” and “ C,” but “Exhibit B,” the copy of the judgment, is not fopnd among the papers or copied as part of the record. It is so probable, that “ Exhibit B” never was filed but exists, and it is so necessary to a just decision of the case, that this Court will remand the case to the court below, in order that the plaintiff may have an opportunity to supply said exhibit, (p. 28 et seq.)</p>

<p>1. Costs — Settlement oe Suit.</p> <p>Generally, if pending an appeal or writ of error the matter of controversy in the suit be settled, this Court will simply dismiss the appeal or writ of error without deciding the merits merely to determine as to costs, and will not pass on the question of costs. Otherwise, under the circumstances of this cause, (pp. 31, 32.)</p> <p>2. Judgment — PnooEss.</p> <p>It is error to render judgment against several defendants, one of them not served with process and not appearing, for which he may, under section 5, c 134 of the Code, reverse the judgment by motion, (p. 32.)</p> <p>3. Judgment — Process.</p> <p>If he make such motion, and it is overruled, the decision of the Circuit Court overruling such motion makes such judgment valid and binding, though before void, unless such decision be re' versed; and he is entitled to reverse it, though the judgment has been satisfied by another of the judgment-debtors. (p.'32.)</p> <p>4. PARTNERS AND PARTNERSHIP — PROCESS—JuDGHENT.</p> <p>All partners must be served with process for judgmentagainst all. (p. 32.)</p>

<p>1. WRIT OF ERROR.</p> <p>An order overruling a motion to set aside a verdict of a jury and refusing to grant a new trial-is not such an order or judgment as will authorize a writ of error to this Court.</p> <p>2. Writ of Error — Final Judgment.</p> <p>In order to authorize a writ of error there must be a final judg. ment on the verdict.</p>

<p>1.FRAUDULENT CONVEYANCE — CONSIDERATION—DEED.</p> <p>It is the settled law of this State, that the recital in a deed of the payment of a valuable consideration for the property therein conveyed is not evidence of such payment as against a stranger or a creditor of the grantor assailing the deed as voluntary and fraudulent as to him. (p. 38.)</p> <p>2.Fraudulent Conveyance —Consideration—Burden of Proof.</p> <p>But when in such case the conveyance is shown to be founded upon a valuable consideration, the burden of proving that the deed is fraudulent in fact rests upon the creditor assailing it. (p. 38.)</p> <p>3.Fraudulent Conveyance — Trusts and Trustees.</p> <p>A trust-deed conveying real and personal property including a stock of store-goods is not per se iraudulent, because it postpones the sale of real estate for six months from the date of the deed and authorizes the trustee after taking an inventory of the store, goods to take control of them and sell the same at private sale, if that can be done in six months, and then sell the residue at public auction, in either case the sales to be in the best possible manner for the interests of the creditors of the grantor, (p. 39.)</p> <p>4.Fraudulent Conveyance — Trusts and Trustees.</p> <p>Where a trust-deed secures many debts in separate classes or to different persons, the simple fact, that a part of the debts secured are shown to be invalid or voluntary, will not make the deed invalid as a security for other and bona fide debts secured therein, (p. 40.)</p> <p>5. FRAUDULENT CONVEYANCE — TRUSTS AND TRUSTEES — INSOLVENCY.</p> <p>The fact, that a trustee in a trust-deed is insolvent and untrustworthy, will not of itself make the deed void ; but in such case the court may appoint a receiver and administer the trust according to the provisions of the deed. (p. 40.)</p>

<p>1. Constitutional Caw — -AttaOhment.</p> <p>Our statute, (Code 1887, c. 106, s. 1,) which provides, that an attachment may be sued out in equity for the recovery of damages for a wrong, is constitutional, (p. 43.)</p> <p>2. Equity — Breach oe Promise oe Marriage — Damages.</p> <p>A suit in equity may under the provisions of said statute be maintained to recover damages for the breach of a marriage contract. (p. 43.)</p> <p>3. Breach oe Promise oe Marriage — Seduction—Evidence.</p> <p>Where seduction has been practiced under color of a promise to marry, it is proper to prove, in an action for the breach of such promise, the seduction in aggravation of the damages, (p. 45 ;</p> <p>4. Attachment — Service of Order — Absent Defendant.</p> <p>In an attachment-suit in equity, to which the debtors of a nonresident defendant are made parties and charged to be such debtors, it is not error to decree, that the latter shall pay the amount found to be due from them to the non-resident, simply because the order of attachment had not been served upon them, (p: 45.)</p>

<p>JURISDICTION — SUPREME COURT OP APPEALS.</p> <p>In an action of assumpsit by a private corporation, authorized by its charter to levy tolls upon persons using a river, which had been improved by. it, against the defendant for tolls, the defendant pleaded non assumpsit, and there is a judgment for the plaintiff for less than $100.00. Upon a writ of error by the defendant, held, this court has no jurisdiction to review the judgment of the Circuit Court, although the record shows that the real defence to the action was, that the condition of the river ■ was such, that the plaintiff had no right to levy the toll, for which the judgment was recovered.</p>

Statement of the case by Gkeen, Judge ; This was a suit brought by William Biggs, Sr., against the city of Huntington before a justice of Cabell county in which the plaintiff claimed damages to the amount In his complaint the plaintiff claimed damages to the amount of $200.00 for this : that the plaintiff’s horse was killed on the 25th of September by falling into a hole or well on'ahd adjacent to the public and common highway known as “ Third Avenue ” in the corporate…

Statement of the case by Gebbn, Judge: The record in this case is very-large containing upwards of 400 printed pages. I will endeavor to give a concise statement of the material facts. On January 2, 1878, Samuel Colgate of ISTew Jersey leased to Charles S. Hurd of Taylor county about 2,000 acres of coal-land in Preston county, W. Ya.

<p>1. Widls — Devisavit Vel Non — Ciianoery-Practice—Undue Influ ence — Witness—Equity—A ppe al.</p> <p>The direction and trial of the issue of devisavit vel non is a proceeding under our statute to impeach or establish a will after a sentence or order made by the County Court or by its clerk and confirmed by the County Court; but it is not an appellate proceeding, and the Circuit Court in such aproeeeding does not pass upon the regularity or irregularity of the proceedings to probate said will before the clerk or County Court, (p. 122.)</p> <p>2. Wills.</p> <p>Upon a bill in chancery to contest the validity of a will, which has been admitted to probate, the functions of the suit aro ex- ' hausted, when that question is decided, (p. 123.)</p> <p>3. Wills — Witness.</p> <p>One of the attesting witnesses to a will, who is a brother to the party, who is claimed to have made the will in controversy, and who is introduced by the contesteesto prove the execution of the paper in the absence of the other subscribing witness, who cannot be found after diligent inquiry, although said witness so introduced is a party to the suit brought to impeach the validity of said will, and would inherit a portion of the property devised in the absence of said will, yet, if he is unprovided for in said will, he is not incompetent under the Code of West Virginia c. 130, s. 23 to testify in support of said will as to its proper execution. (p. 123.}</p> <p>4. Wills — Undue Influence.</p> <p>Where a party is shown to have mental capacity sufficient to make a will, in the absence of fraud or undue influence the validity of the will can not be impeached, however unreasonable or unaccountable it may seem to others, (p. 132.)</p> <p>5. Widls — Devisa vit Vbl Non — Undue Influence.</p> <p>Upon the trial of an issue of devisavit vel non undue influence, in order to overthrow the will, must not only be alleged, but it must be proven by the' contestants; it will not be inferred, (p. 132.)</p> <p>6. INSTRUCTIONS.</p> <p>Instructions, which are not based upon or applicable to the facts proven in the ease, should not be given to the jury, although they may be correct as abstract principles of law. (p. 132.)</p>

<p>1. Deed — Married Woman — Separate Estate — Certificate of Acknowledgment — Ejectment.</p> <p>If a deed from husband and wife conveying land of the wife be void as to her because of defective certificate of her examination and acknowledgment, and after the death of her husband she convey the land to another with notice of the former deed, yet the second purchaser will not be affected by such notice, the former deed being void and passing no right legal or equitable, and the second purchaser does not hold the land as trustee for the first purchaser, and equity will not compel him to convey to the first purchaser nor will it enjoin the second purchaser from prosecuting an action of ejectment to recover the land from the first purchaser’s possession or that of his vendee, (p. 139.)</p> <p>2. Deed — Refunding Purchase-Money — Warranty—Married Woman — Separate Estate.</p> <p>Nor will equity refund to the first purchaser or his vendee the consideration paid by the first purchaser by personal decree against second purchaser, or by charging it on the land. The covenant of warranty in the deed binds the woman no further than to pass her land even if valid, (p. 142.;</p> <p>3. Deed -Married Woman - Separate Estate — Certificate of Acknowledgement — Estopple.</p> <p>Though during coverture the wife bring suit against her husband and others to assert her right to land acquired by her husband in his name with the consideration paid by such first • purchaser, reciting in her pleading, that she had executed such deed to such first purchaser and received the consideration, and obtained a decree giving her such land, and declaring it her separate estate, that will not estop her or such second purchaser, from recovering the land from the first purchaser or his vendee, (p. 140.)</p> <p>4. Deed — Married Woman — Ratification.</p> <p>Though in such suit she so recite her former deed, and though she and her husband make a deed to another person for one acre within the bounds of the tract mentioned in the void deed, which that deed had reserved to her, describing it as the one acre reserved in tire void deed, referring to that deed as a deed, yet this is no ratification of such void deed. During coverture she cannot ratify such void deed by mere admissions or recitals or other acts in pals, but only by acknowledgement of the void deed, or the execution of another instrument with privy exam-inafcion, acknowledgement, and recordation, as prescribed by the statute, (p. 140.)</p> <p>5, Deed — MARRED Woman-Separate Estate — Husband and Wife.</p> <p>Where by deed land was conveyed directly to a married woman prior to the Code of 186S, such conveyance did not create in her a separate estate, but the husband become entitled to a freehold estate in the land, which would continue at least during the joint lives of the husband and wife, with remainder in fee to the wife. (p. 143.)</p> <p>6. Deed — Married Woman — Husband and Wipe — Certificate op Acknowledgement — Eight of Entry — Statute op Limitations.</p> <p>In such case, if the husband and wife by a deed void as to her for want of a proper certificate of her examination and acknowl-edgement convey the land to a party and put him in possession, such purchaser is entitled to hold that possession until the death of the husband, and the wife or her heirs or any one claiming under them has no right of entry until the husband’s death, and right of action, does not accrue to them, nor does the statute of limitations run against them, until his death, (p. 143.)</p>

Statement of- the case by Branson, Judge : On the 4th day of'April, 1881, the president, directors and company of the Farmers’ Bank of Virginia, use of R. B. Sherrard, sued out of the Circuit Court of Hampshire county a writ of scire facias to revive a judgment recovered by them on the 8th of November, 1856, against George Reiter for $1,200.00 and $2.01 with' interest on whole from 5th of July, 1855, and costs.

<p>PRINCIPAL AND SURETY — ATTACHMENT—APPEAL—CONTINUANCE.</p> <p>J. O. C., W. C., and T. executed a note to one Susan Spiller, in which J. O. C. was .principal, and the others were sureties. Suit was brought on said note, and satisfaction was obtained out of the property of T. in the county of Tazewell. During the pendency of proceedings to enforce the collection of said note, T. died, and W. C.and A. G. C. transferred to the executors of T. two several notes made by M. to W. C., for §3,100.00 each, which purported to be secured by vendor’s lien on certain lands, which had been conveyed to M. by said W. O. and A. G. C., to indemnify the estate of T. for the amount recovered from it by said Susan Spiller. Suit was brought by the executois of T. to enforce said vendor’s lien, but it proved unavailing, for the reason that the proceeds of the land, when sold, were absorbed almost entirely by prior liens thereon, which existed against W. C. and A. G. C. Said executors obtained judgment on one of said notes in Washington county, where M. resided, and sought to prove said judgment, which was in the name of W. and A. G. C., for the use of said executors in a chancery suit pending in said county, but it was rejected both by the commissioner and the court. Said executors and the devisees of T. then brought a suit in equity in the Circuit Court of McDowell county in this state in the nature of a foreign attachment, to subject the lands of J. O. C. therein situated to the payment of the amount, which the estate of T. had paid for him as surety,-and also the amount, which had been recovered from T. in his lifetime. An attachment was sued out and levied on said lands, and an order of publication taken and executed against the defendants. W. C., one of the defendants, appeared and required security for costs, which was given, made a motion to quash the attachment, which was sustained, demurred to the bill and filed his answer in October, 1877 ; and at the October term, 1884, of said Circuit Court, a" decree was rendered against the defendants for the amounts claimed in the bill; and the lands of J. O. C., which had been levied on under an attachment, were directed to be sold under the attachment-lien. Afterwards the defendant J. O. C. appeared, petitioned for a rehearing, and said decree was set aside, and he filed his answer. The court sustained the demurrer ; al-1 lowed the plaintiffs to amend at bar, gave a personal decree against the defendant J. O. C., and held that the plaintiffs had a lien by virtue of said attachment, and directed a sale of said lands to satisfy the plaintiffs’ claim. Held :</p> <p>I. The notes transferred to the executors of T. by W. C. and A. G. 0, having proved worthless by reason of a failure of consideration, the question of diligence on the part of said executors is not material in this case. (p. 183.)</p> <p>If. Although an attachment sued out in this case appears to have been quashed, yet, the decree of the court below reciting, that the cause was heard upon the attachment duly levied upon the-lands of J. O. C., in this Court said attachment must be taken to have been in full force and effect, duly sued out and levied as required by statute, (p. 164.)</p> <p>III. Under the circumstances of this case it was not incumbent on the executors of T. to appeal from the decision of the Circuit Court of Washington county rejecting the judgment in their favor against M. before resorting to the property of J. O. C. for reimbursement, (p. 158.)</p> <p>IV. The demurrer to the bill having been sustained, and the plaintiffs having amended at bar, and the defendants neither asking delay nor demurring to the bill as amended, there was no good reason for delaying the hearing of the ease. (p. 158.)</p>

<p>CORPORATIONS — LEaAL .EXISTENCE.</p> <p>1. A. corporation exists only in contemplation of law and by force of law and can have no legal existence beyond the state or sovereignty, by which it is created, (p. 170)</p> <p>Corporations.</p> <p>2. While a corporation by the same name may be chartered by two states clothed with the same capacities and powers and intended to accomplish the same objects and be exercising the same powers and duties in both states, yet in law there will be two distinct corporations, — one in each state, — with only such corporate powers in each state, as are conferred by its creation in that state, (p. 171.)</p> <p>CORPORATIONS — Removal op Causes.</p> <p>3. One state cannot by a mere legislative declaration make all corporations created by charter or by the laws of other states domestic corporations of such state ; at least it can not by such declarations deprive the foreign corporation of its right to resort to the Federal courts, 'in cases where such right is conferred by the constitution and laws of the United States, (p. 172.)</p> <p>Corporation — Railroad Companies — Removal op Causes— Constitutional Law.</p> <p>4. So much of section 30 chapter 54, of the Code of this State, as declares, that foreign railroad corporations doing business in this State shall in all suits and legal proceedings be held and treated as domestic corporations of this State, and requires every such corporation to file an agreement to that effect, is, so far as it attempts to deprive such.corporation of the right to remove to the Federal courts suits brought by or against it in the courts of this State in eases, in which it would otherwise be entitled to such right, inoperative and void ; and such foreign corporation may exercise such right in any proper ease, notwithstanding it has executed and filed such agreement in pursuance of the provisions of said statute, (p. 173.)</p>

<p>Evidence — Tax Deed.</p> <p>Under the provisions of the Code of 1868 of this State a tax-deed for land executed in 1870 by a deputy-recorder and duly acknowledged by him in his own name as such deputy is admissible in evidence in ah action of ejectment for said land.</p>

<p>1. BvidenCE — Witness—Impeachment .</p> <p>To impeach a witness by proving statements of his on another occasion inconsistent with or contradicting his statements on the trial, the statements must be material to the case, not collateral. (p. 181.) ' '</p> <p>2. Evidence — Witness—Impeachment.</p> <p>If the statements be collateral to the case and be drawn out on cross-examination and not in chief, the party drawing them out is bound by the answer and can not introduce evidence to contradict it. (p. 181.)</p> <p>3. Evidence — Witness—Impeachment.</p> <p>Before such evidence to impeach can be admitted, a foundation must be laid by an examination of the witness touching the fact of his having made such statements, fp. 182.)</p>

<p>1. Trusts and Trustees.</p> <p>A trustee acting strictly within the line of his duty and exercising reasonable care and diligence will not be held responsible for the loss or depreciation of the trust-fund or the insolvency or misconduct of any person, who may have possessed it; but if that line of duty be not strictly pursued, and any partof the fund be invested upon securities not authorized or be put within the control of persons, who ought not to be intrusted with it, when there is no necessity lor so doing, and a loss be thereby eventually sustained, such trustee will be liable to make it good however unexpected the result, however little likely to arise from the course adopted, and however free such conduct may have been from any improper motive, (p. 188.)</p> <p>2. Trusts and Trustees — Executor.</p> <p>An executor is directed by will to invest a specified sum of money in interest-bearing bonds and pay the interest thereon to ' a legatee for life and after her death to divide the fund among her children. The executor applied to the cashier of a bank, who agreed to sell him United States bonds, but without seeing the bonds or knowing, that they were in the bank, the executor paid the cashier for them with the understanding, that they were to be held by the bank subject to his order. No bonds were in fact ever put in the bank on special deposit in the name of the executor or as his property, but the cashier paid to him, as the interest matured on such bonds, a sum equal to their interest. No inquiry was made by the executor for the bonds until after the failure of the bank nearly two years thereafter, when it was ascertained, that there were no bonds there ; and if such bonds had ever been deposited there, they had been appropriated by the cashier long before the failure of the bank. Held. — The executor is liable for the trust-fund. (p. 191.)</p> <p>3. Trusts and Trustees.</p> <p>Where the relation of parties is that of trustee and cestui que trust, the statute of limitations does not commence to run, until there has been an open denial and repudiation of the trust by the trustee brought home to the cestui que trust in such a manner as will require the latter to act as upon an asserted adverse title, (p. 192.)</p>

<p>Bill op Review — Vendo®. and Vendee — Pubchase-Money—Ti-tle.</p> <p>A sale is made under a deed of trust of a tract of land situated in Barbour county containing sixteen acres. S. bids in the property, but H., the cestui que trust, contends that it was bid im by S. at his (H.’s) request, and paid for with his money. S. transferred his equity acquired by his bid to different parties for valuable consideration but with the express understanding and agreement, that S. should obtain possession of said land and hold it against H. The equity aforesaid being transferred to W., he sued S. for a deed, and S. sued him for the purchase-money. The cases were heard together, and a decree was rendered that W. pay to S. §200.00, the purchase-money for said equity, with interest from April 16, 1856 ; and that S. before receiving the same should procure the legal title to said sixteen acres, H. then brought a suit to establish his title to said sixteen acres, in which he succeeded, said three eases being heard together. S. then waived his right to proceed against the land, but the court allowed him to sue out execution against the property of W. W. then filed a bill, reciting what had been done in the three cases, praying that S. be prevented from enforcing said execution, that the papers in said cases might be looked into, and that general relief might be granted him. Held :</p> <p>I. The bill filed by W. under all the circumstances will be treated and considered as a bill of review, (p .199 et seq.)</p> <p>II. The title of S. to the sixteen acres of land in the bill mentioned having proved worthless, it would be inequitable and unjust to enforce a decree against W., his vendee, for the purchase-money. ' (p. 199 et seq.)</p> <p>III. A decree in favor of S., awarding execution upon a decree against W., which was conditioned upon his (S.’s) obtaining and holding the legal title of a tract of land, will be set aside, when a court of competent jurisdiction has decided • the said legal title not to be in S. but in some other person, (p. 199 et seq.)</p>

<p>1. Husband and Wife — Separate Estate.</p> <p>A husband with the knowledge and consent of his wife at different times receives, or she delivers to him, the proceeds of the sale of her realty, gives her no note or written obligation to repay it, mingles it with his means, uses it in his business for years, keeps no written account of such moneys, nor does she, then becomes insolvent and some eight or ten years after his receipt of the money purchases real estate in the name of his wife; and it is alleged by him and her, that it was paid for with the money so received ; and several years afterwards he and she unite in a deed of trust to secure a very considerable debt on said real estate, such debt being a loan to the husband; and before such purchase a judgment is rendered against him fora debt. The lot is liable to the judgment, (p, 205 et seq.)</p> <p>2. Husband and Wife — Sepabate Estate — Statute op Limitations.</p> <p>If, when such purchase is made, any claim, which she may have on him for such proceeds of her real estate, is barred by limitation, that circumstance tends strongly to repel the wife’s claim to exempt the land against creditors, (p. 205 et seq.)</p> <p>3. Husband and Wife — Presumption of Law — Evidence.</p> <p>The law will not from the mere delivery by the wife of her money to the husband or from the permitted receipt by him of her separate estate imply a promise by him to repay her, but will require more, — either an express promise, or circumstances to prove that in such matters they dealt with each other as debtor and creditor. To thus raise a debt against him to the prejudice of creditors, the proof must be clear, full and above suspicion, (p. 205 et seq.)</p> <p>4. Points 1, 2, 3, and 5 of the syllabus in Burt v. Timmons, 29 W. Va. 441 (2 S. E. Rep. 780,) re-affirmed, (p. 213.)</p>

<p>1. GUARDIAN AND WARD — ACCOUNTING—COMPENSATION.</p> <p>C. is appointed a guardian for. A. and G., infant children of J. H., who enlisted in the United States army and was killed in 1863 leaving a widow, who married a widower with eight children in the latter part of the year 1863 and by him became the mother of eight more children. The guardian applied for and obtained a pension for his said wards after considerable delay in November, 1875. In December, 1875, the mother of said wards and her second husband presented a claim to said guardian for keeping, clothing and schooling said wards for eleven years up to December 4, 1875, amounting to $1,056.00, which was paid by said guardian out of said pension-money as of that date, he taking their receipt for the amount so paid. Said guardian also paid said parties $105.00 on the 23d day of June, 1877, and $¡00.00 on the 6th day of January, 1879, for boarding, schooling and clothing said wards, taking receipts for the amount so paid, but neither receiving nor requiring the production of an itemized account of the claim so presented ; and upon a settlement of his accounts before a commissioner, on the 20th day of December, 1882, said guardian was charged with $1,605.53 as received in January, 1876, although really received in December, 1S75, and $30.00 every three months thereafter until February, 1878, making the aggregate amount received $1,715.53, and credited with $1,056.00 as of December 4, 1875, $105.00 as of June 23,1877, and $100.00 as of June 6, 1879, and $10.00 as of December 10, 1877, paid by said guardian to said parties as aforesaid, said commissioner charging said guardian with no interest upon the amounts so received by him. Upon a bill filed to surcharge and falsify said account and the proceeding had therein, held, that the claim presented by the mother and step-father of said wards stands on no different footing, from what it would, if presented by a stranger. (p. 228.)</p> <p>2. Guardian and Ward — Accounting—Interest.</p> <p>The money so received by said guardian for said wards should have been invested or loaned within thirty days after it was received, and he should have been charged with interest thereon after that time, unless he should have sooner loaned or invested the same. (p. 232.)</p> <p>3. Guardian and. Ward — Accounting.</p> <p>An account of this character against an infant should not only be itemized bun should be sustained by satisfactory proof; and a guardian, although duly authorized to disburse the principal of his ward’s estate for education and maintenance, should require such proof before paying the same. (p. 231.)</p> <p>4. Guardian and Ward — Accounting—Compensation.</p> <p>Said guardian having failed to lay before a commissioner of accounts a statement of receipts during the several years he had the money of his said wards in his possession and not accounted for, he should have no compensation for his services during the years he has thus failed to settle his accounts, (p. 231.) . •</p> <p>5. Guardian and Ward — Accounting.</p> <p>If the recovery of such claim or any portion of it could be prevented by illegality of consideration or lapse of time or by any other fact within his knowledge, the guardian must avail himself of such defence, or he can obtain no credit for the amount paid. (p. 231.)</p> <p>6. Guardian and Ward — Accounting.</p> <p>A guardian who has more than one ward should keep their accounts distinctly and settle them, separately, showing his receipts and disbursements and the balance in favor of or against each. (p. 228.)</p>

<p>1. Deed — Husband and Wife.</p> <p>' A deed of conveyance bearing date the 8th day o'f June, 1850, to a husband and wife residing in Barbour county, then in Virginia, for a tract of land situated in said county did not confer upon the husband title to the undivided moiety of said land, but said husband and wife took by entireties, (p. 241).</p> <p>2. Deed — Husband and Wife — Debtor and Creditor.</p> <p>A creditor of the husband files a bill to subjéct the real estate of the husband to the payment of his debt. It is error in the court upon the above state of facts in regard to the acquirement of title by the husband and wife to hold, that the husband is entitled in fee-simple to the undivided one half interest in said tract of land, and to direct said undivided half to be sold for plaintiff’s debts.- (p. 243.)</p> <p>3. Deed — Fraud—Debtor and Creditor.</p> <p>Although a deed may be fraudulent and void as to creditors, it is nevertheless valid and binding between the parties to the fraud, which brought it into existence; and it is error in the court to set aside and annul such deed in tolo. (p. 242.)</p> <p>4. Deed — Husband and Wife — DebTob and Cbeditob.</p> <p>'A deed of conveyance is made directly from the husband to the wife for a tract of land, and as part of the consideration she agrees to pay B. $300.00 and H. $100.00 with interest on said amounts, which the husband owes to B. and H., and to secure .which amount the vendor’s lien is reserved. Although said deed may be .set aside as to general creditors as fraudulent, the liens thus reserved must be respected as liens on the equitable title conveyed as of the date of the recordation of said deed, if said claims are valid in other respects, (p. 241)</p>

<p>1. Contracts — Presumption oe Law — Burden of Proof — Corporations.</p> <p>Where the contract of a corporation purports to be sealed with its corporate seal,"and it is proven to be signed by the proper agents of the corporation, the presumption is that the seal was affixed by the proper authority, and such contract will be held valid until the contrary is shown, (p. 257.)</p> <p>'2. Contracts — Presumption of Law — Corporations — Directors.</p> <p>The presumption of authority to affix the corporate seal to a contract will not be overcome by the mere fact, that no vote of the directors authorizing it is shown, (p. 257.)</p> <p>3. Notice — Trusts and Trustees — Railroad Co. — Mortgage. Notice to a trustee is notice to thecesiíwi que trust; and this rule applies to trustees under an ordinary mortgage made by a railroad company to secure the holders of bonds issued under it. (p. 259.)</p> <p>4. Notice — Pup.chaseRs.</p> <p>Where a subsequent purchaser has actual notice that the property in question was incumbered or affected, he is charged constructively with notice of all the facts and instruments,' to the knowledge of which he would have been led by an inquiry into the incumbrance or other circumstance affecting the property, of which he had notice, (p. 259.)</p> <p>5. Mortgage — Pelease.</p> <p>An entry of satisfaction by the mortgagee, after he has parted with his interest in tlié security, will not discharge the mortgage in favor of one who had acquired an interest in the land before the discharge was made. (p. 260.)</p> <p>6. Mortgage — Trusts aed Trustees — Release.</p> <p>A mortgage is executed by a railroad company on its property to secure bonds to be issued thereunder, which provides, that upon the full payment of all said bonds at maturity the trustee shall release the same. Before the maturity of the bonds,’ they are surrendered to the trustee upon an agreement, that other bonds to be issued under a subsequent mortgage are to be substituted for them. The trustee without substituting such other bond executed a release of the mortgage, stating therein that all the bonds “had been surrendered.” The railroad company was not in a condition to anticipate the payment of its bonds, and had executed several other mortgages to take up bonds issued under former mortgages. Held: These facts and circumstances were sufficient to charge a subsequent mortgagee with notice of the terms and conditions, upon which the bonds under said released-mortgage had been surrendered, and he takes subject to the rights of those entitled to the bonds under said agreement, (p. 260 et seq.)</p> <p>7. Trusts and Trustees.</p> <p>The trustee can only do with the trust-property what the deed either in express terms or by necessary implication authorizes him to do. (pp. 264, 5.)</p> <p>8. Mortgage — Release—Evidence—CANCELLATION.</p> <p>The cancellation of a mortgage on the record is only prima faeie evidence of its discharge, and the owner may prove that the cancellation was done by fraud, accident or mistake, and, if he does this, his rights will not be affected by the improper cancel" lation of it. (p. 266.)</p> <p>9. Mortgage — Railroad Co. — INTERVENTION—Ch’y Practice.</p> <p>Where the road of a railroad company passes into two states, in each of which it is a domestic corporation, and the trustee in a mortgage upon the whole road first brings a suit in one state to foreclose the mortgage and afterwards brings an ancillary suit in the other state for the same purpose, the plaintiff in said suits can not object to or prevent a lien-creditor of the railroad Company, who has not filed his claim in the first suit, from intervening in the second to establish his lien. (p. 271.;</p>

<p>1. Vendor’s Lien — Parties.</p> <p>In á suit to enforce a vendor’s lien on land it is not error to decree a sale of such land to pay said lien without making other creditors having subsequent liens thereon parties and ascertaining the amounts and priorities of their debts.</p> <p>2. VENDOR’S Lien — Parties.</p> <p>If the land, on which the vendor’s lien exists, has been conveyed by trust-deeds to secure debts, i,t is proper in such suit to ■ make the trustees in such trust-deeds parties, but it is not necessary to make the eestuis que trust in such deeds parties before decreeing in favor of the person holding the vendor’s lien.</p>

<p>1. VENDOR AND VENDEE — TITLE.</p> <p>In a suit by vendor to enforce the payment of purchase-money under an executory contract for the sale of land, if defendant al- • .leges a defective title of vendor, he may have a reference to ascertain the character of the title, or the court may, where the proof raises a doubt as to title, make such reference; but unless such reference be asked by the' vendee, or such doubt appear, such reference is not necessary, and the court may proceed to subject the land to sale for the purchase-money.</p> <p>2. Specific Performance.</p> <p>If at the date of the decree of sale the title, though originally defective, has become good by reason of the purchaser’s possession under the statute of limitations, the court may go on to enforce th'e contract.</p> <p>3. Specific Performance — Notice—Estopped.</p> <p>A vendor, who after sale to a vendee sells and conveys the same land to another without notice to .the second purchaser of the first sale, is for that reason estopped from collecting by specific performance of the contract from the first purchaser the purchase-money for the land sold to the second purchaser.</p>

<p>1. Equity.</p> <p>A doubtful or partial remedy at law does not exclude the injured party from relief in equity.</p> <p>2. Equity — Sheriff—Judgment—Creditors.</p> <p>A suit may be maintained in a court of equity by or in the name of the sheriff, under Code 1887, e. 141, s. 15, where there is a conflict between two or more execution-creditors in respect to the same fund or property, and where such suit will avoid a multiplicity of suits.</p> <p>3. Insurance.</p> <p>Where a policy of fire-insurance provides, that the policy shall be void in any case of a transfer or change of title in the property insured or the foreclosure of a mortgage thereon, the execution of a trust-deed on the property, after the insurance was made, under which no sale had been made at the time of the loss, will not avoid the policy.</p> <p>4. Insurance.</p> <p>, An assignment of a fire-insurance policy subsequent to the loss is valid regardless of the conditions of the policy.</p> <p>5. Insurance — Estopped.</p> <p>When the requirements of the policy make it the duty of the insured to submit with the proof of loss a certificate of the nearest magistrate, and a certificate is furnished, to which no objection is made within a reasonable time, the insurer will be es-topped from making objections, on the ground that it was not made by the nearest magistrate.</p>

<p>1. Towns — CORPORATE Limits — Common-Law Practice.</p> <p>It is not necessary to the validity of an order made by the Circuit Court under chapter 47, § 49, Code 18S7, approving a change of the corporate limits of a town, that the order should show on its face, that the town contains lefes than 2,000 inhabitahts. (p. 293.)</p> <p>2. Towns — Taxation.</p> <p>Where a town under said chapter of the Code extends its corporate limits so as to include agricultural or farming lands and imposes municipal taxes on them, though they are not laid off into streets and alleys and not laid out in lots andaré notso near streets or alleys as to be directly benefited by them or derive any peculiar benefit from the incorporation, the courts can not affect its action or prevent such taxation, (p. 295.)</p>

<p>1. Judicial Sales — Decbee,</p> <p>R., administrator of M., filed a bill in the County Court of Kanawha county in April, 1870, against W. and others to enforce a vendor’s lien on a lot of land situated in Charleston, W. Va., then owned and claimed by W. R. acted as solicitor for plaintiff and was appointed special commissioner to make the sale in June, 1876. After being offered on several occasions, and the sale postponed at one time to accommodate W., said lot was sold on the 25th day of November, 1876, for $700 00, which appears to have been all it was worth at the time. B. H. S. and Rq as such administrator, became the purchasers. The sale was confirmed without exceptions on the 20th day of December 1876, and the purchasers went into possession and have so continued. After the application of the proceeds of said sale there was left a balance due said .administraor, and a decree was rendered against W. for said balance, which was voluntarily paid by W., October, 28,1881. Since said salesaid property has increased in value from several causes, and when this suit was brought, in 1887, was worth about §3000.00. Held: The decree appointing R. a special commissioner to make sale of said lot and the decree confirming the purchase by R. as such administrator, were voidable, and could have been so shown by W. in the suit, which directed the sale, to which he was a party, if he had been so disposed.</p> <p>2. Statute op Limitations — -Decree.</p> <p>After the lapse of nearly ten years a party to a suit will not be heard to impeach a decree rendered therein by original bill under the circumstances shown in this case, unless some valid excuse is shown for this long delay.</p>

<p>1. Husband and Wife — Sepabate Estate — Ejectment—Pa ties — Writ of Possession.</p> <p>A wife living with her husband on land, which she claims as her separate estate under a right derived from a person other than her husband prior to commencement of the action, can not be turned out of possession by a writ of possession in an action of ejectment against her husband, to which she was not a party. In such case she is as to her claim a person distinct from h< r husband and must be made a party to the action like any other person, in order to bind her by the judgment.</p> <p>2. Husband and Wife — Writ of Possession — Equity—Jurisdiction — Injunction.</p> <p>In such a case eq uity has j urisdiction by inj unction to restrai n the execution of the writ of possession as to her. The parties will be left without prejudice from the decree to test their titles at law.</p>

Statement of the case by SnydeR, Peesident : John H. Connell on October 7, 1886, filed his bill in the Circuit Court of Kanawha county against Daniel P. Connell, Roman Pickens and W. S. Laidley, trustée, in which he avers, that in the year 1865 he contracted to purchase from Davis H. Estill a house and lot on Quarrier street in the city of Charleston at the price of $2,000.00, of which sum he paid about $500.00 and, in order to get the title from Es-till, his father, J. S.…

<p>1. ToWNS — Corporate Limits.</p> <p>It is not necessary to the validity of an order of the Circuit Court under Code 1887, c. 47, s. 49, approving a change of the limits of a town, that the order show on its face, that the town contains less than 2,000 inhabitants.</p> <p>2 Towns —Cpbpobate Limits — Taxation.</p> <p>A town may under said chapter of the Code, extend its corporate iimits so as to include a railroad bridge across the Ohio river and impose municipal taxes on such bridge. Such taxation is not ultra vires.</p>

<p>1. Bill oe Review — Newly-Discovered Evidence.</p> <p>The filing of a bill of review for newly-discovered evidence is not a matter of right but rests in the sound discretion of the court.</p> <p>2. Bill op Review — Newly-Discovered Evidence.</p> <p>A -bill of review for newly-discovered evidence will not lie, where the evidence is simply confirmatory or cumulative. It must be decisive in its character, such as ought, if true, upon rehearing to produce a different decree, and of which the party was ignorant at the time of the decree and could not have learned by the exercise of reasonable diligence.</p> <p>3. Bill op Review — Newly-Discovered Evidence.</p> <p>If a party allege the finding of a document since the decree, which would have been relevant evidence for him on the hearing, and knew of its existence and contents, though he made diligent search for it before the decree without finding it, yet if he could have proven its existence and contents by the evidence of witnesses, he should have done so, and can not on that ground sustain a bill of review.</p> <p>4.Bill op Review — Newly-Discovered Evidence.</p> <p>Where the court of appeals decides the principles of a cause and sends the cause to the Circuit Court with a mandate to enter a decree of a specific character and for further proceedings merely to execute it, though there can not be a bill of review for error of law, yet there may be for after-discovered matter. But to allow a bill of review in such case great caution should be observed, and the new matter should be very material and newly-discovered and unknown to the party at the date of the decree, such as could not have been discovered by the use of reasonable diligence, arid not simply confirmatory or cumulative in its nature, but decisive in effect; such as ought, if true, to call for a different decree.</p>

<p>1. Revebsal op Judgment.</p> <p>A case in which a decree of the Circuit Court is reversed upon the facts.</p> <p>2. Reversal oe Judgment.</p> <p>Where a subsequent decree is based solely upon a previous decree in the same cause, the reversal of the latter will necessarily result in the reversal of the former.</p>

<p>Licenses. — Constitutional Law.</p> <p>That clause of section 2, e. 32, Code, as amended by chapter 17, Acts 1S85, which reads : “Nor shall any agent travelling with one or more horses sell any lightening-rod, sewing-machine, or organ or other musical instrument without a state license therefor,” is not unconstitutional, as applied to such agents selling Singer sewing-machines manufactured out of this state.</p>

<p>Deed — CORPORATIONS.—ESCROW.</p> <p>After the corporators had signed an agreement to become a corporation, and before the charter had been obtained, a deed conveying land to such corporation by name was signed and acknowledged by the grantor and delivered to a third party with directions to retain it, until the corporation obtained its charter and organized, and then to deliver it to the corporation; and after the charter had been received, and the corporation had organized under it, such third person delivered the deed to and it was accepted by the corporation. Held: The said deed operated as a valid conveyance of said land to the corporation from the date of the delivery of said deed to it.</p>

<p>1. Municipal Corporations — Ordinances—Habeas Corpus.</p> <p>F was arrested in June, 1887, and brought before the Mayor of the city of Charleston for a violation of one of the city-ordinances in selling beer without license within one mile from the corporation-limits, was tried and convicted by the mayor and fined |50.00 and costs, and was committed to the street-commissioner, to work out his fine. It appears, that the warrant for his arrest was issued by the recorder, but it does not appear, whether he was arrested within or beyond the city-limits. F. petitioned for and obtained from the Circuit Court of Kanawha county a writ of habeas corpus. The return made by the mayor to said writ discloses the facts above stated and also alleges, that F. had violated said ordinance. F. demurred to said return, and upon the hearing the Circuit Court dismissed said writ with costs. Held :</p> <p>I. The mayor of the city of Charleston had jurisdiction to hear and determine said cause.</p> <p>II. Under the facts disclosed the Circuit Court acted properly in overruling said demurrer and dismissing said writ of habeas corpus.</p>

<p>1. Railway Companies— Damages — Deolaeation—Demubbee —SUP.PLUSAGE.</p> <p>In an action under our statute Code, c. 103, to recover damages for causing the death of a party the declaration is not demurrable, simply because it names the widow and children of the defendant and avers, that the damages claimed by the plaintiff accrued to them. Such parts of the declaration will bs treated as surplus-age. (p. 372.)</p> <p>2. Railway Companies — Declaration.</p> <p>The declaration in an action under said statute, which avers, that the decedent was killed by the oversetting and throwing down of the railroad car, in which he was at the time being carried by the defendant as a passenger, and that said oversetting and throwing down of the car were caused by the negligence of the defendant, is not demurrable, on the ground that the allegation is too general, (p.373.)</p> <p>3. Railway Companies — Negligence—Instructions.</p> <p>The following instructions are not erroneous in an action brought under said statute to recover damages for the causing of the death of a husband and parent by the negligence of a railroad company : “(2) The law in tenderness to human life and limbs holds railroad companies liable for the slightest negligence and compels them to repel by satisfactory proofs every imputation of such negligence. When carriers undertake to convey passengers by the powerful but dangerous agency of steam, public policy and safety require, that they be held to the greatest possible care and diligence. (3) The Kanawha & Ohio Railway Company as a common carrier of passengers was bound to exercise the utmost degree of diligence and care in safely transporting Daniel Searles upon his journey, (ij The slightest neglect, against which human prudence and foresight might have guarded, and by reason of which his death may have been occasioned, renders such company liable in damages for such death. (5) Said railroad company is held by the law to the utmost care not only in the management of its trains and cars but also in the structure, repair and care of the track and bridges and all other arrangements necessary to the safety of passengers. (6) The jury are instructed that in estimating the pecuniary injury they may take into consideration the nurture, instruction, and physical, moral, and intellectual training, which the children would have received from their father. (7) The jury are instructed that while they must assess the damages with reference to the pecuniary injuries sustained by the distributees in consequence of the' death of Daniel Searles, they are not limited to the losses actually sustained at the precise period of his death, but may include also prospective losses, provided they are such as the jury believe from the evidence will actually result to the distributees as the proximate damages arising from the wrongful défith.” (p. 374.)</p>

<p>1. Rescission of Contract — Vendor’s Lien.</p> <p>On the 12th day of April, 1882, M. executed to I. a deed of conveyance for certain lots of land in Greenville Wirt county, W. Va., in consideration of §600.00, §200.00 of which was paid in cash, and the residue to be paid in one, two, three and four years after date, in payments of §100.00 each, and the vendor’s lien was retained to secure the payment of said deferred instalments. In 1884, I. insured the house situated on saidlots in the North British & Mercantile Insurance Company for §500.00 ; and the said house was destroyed by Are February 5, 1S86. Subsequently an agreement in writing dated in January, 1885, was entered into between M. and I., whereby it was stipulated, that I. should remain in possession of said lots until the 1st day of March, 1886, on the following conditions, viz : That she, the said T., should take care of said property keep the taxes'paid up to that date and peaceably surrender possession of said property to the said M., give up the deed, which she then held, and the said M. should give up the notes she might then hold against said I., and the whole former trade or sale of the property should be rescinded ; but if the said I. should meet all the payments due to that date with a probability of meeting the remaining deferred payments, then the original contract to remain in full force ; otherwise to be null and void. Upon a bill filed in June, 1880, to enforce said vendor’s lien against I., she filed said agreement of January, 18S5, with her answer and relied upon the same as a release of said vendor’s lien and a recission of the contiact to pay the residue of said purchase-money. Held :</p> <p>I. By said agreement of January, 1885, said vendor’s lieu was released, and the contract to pay the residue of said purchase-money was rescinded.</p> <p>Rescission of Contract-Insurance.</p> <p>II. Notwithstanding said agreement to rescind said contract of sale, until said rescission was consummated by exchange of deed and notes, the defendant, I., sMll retained an insurable interest in said property on the 5th of February, 1886, when said property was destroyed by fire, and was entitled to the benefit of said policy of insurance.</p>

<p>1. Limitations of Actions — Receivees.</p> <p>On the 16th day of June, 1865, in the chancery cause of Ruff-ner and Long v. Donnally and others pending in the Circuit Court of Kanawha county, a decree was entered directing the receiver to lend out certain money in his hands to the credit of said suit. In pursuance of said order W., the receiver, loaned to S. 5125.00 and took a promissory note therefor payable on demand to W., receiver of the Circuit Court of said county with interest from date, the 5th day of January, 1886, the note showing on its face that it was given for money borrowed from the chancery cause of R. & L. v. D. et ais. W. died, and L. was appointed general receiver of said court in his stead June 2, 1877. G. S. L., as special receiver, was directed on the 10th of April, 1884, he having been appointed such special receiver, to collect said fund, and in pursuance of said direction he instituted this suit against S. and filed his declaration in the month of November, 1885.’ The defendant interposed, the plea of the statute of limitations, to which the plaintiff objected and replied generally but filed no special replication. Held, The claim, upon which said suit was predicated, was barred by the statute of limitations, and if the plaintiff relied upon any of the statutory or other exceptions to take said claim out of the operation of said statute, it should have been set forth in a replication to said plea.</p> <p>2. Point 1 of syllabus in State v. Miller, 26 W. Va. 106, considered and re-affirmed.</p>

<p>Elections — Governor--Mandamus.</p> <p>When neither the speaker of the house of delegates nor the joint assembly of both houses of the legislature convened under section 3 of article VII of the constitution of this state for the purpose of opening and publishing the returns of the election for the office of governor does in fact open and publish the returns in respect to said office or declare any person elected to that office, this Court can not by mandamus adjudge the person, who appears from the returns certified to the speaker of the house to have received the highest number of votes for that office, to be the governor and compel the person, who was the governor during the preceding term to deliver the office and its insignia to him.</p>

<p>1. FRAUDULENT CONVEYANCES — WIFE’S EQUITY.</p> <p>G , who was a merchant in the town of Sissonville, Kanawha county, W. Va., became the owner of a lot in said town containing three fourths of an acre by a deed made to him by M. and wife on the 17th day of August, 1871. When he acquired said lot, his wife, M. G., was the owner of a lot in the same town, which had been conveyed to her by M. and wife by deed dated November 19, 1866, which was recorded on the 3d day of June, 1867. On the 19th of June, 1877, G. agreed with O. to exchange both of said lots in the town of Sissonville for 390 acres of land owned by O. on Blue creek in said county, which agreement was carried into effect on the 23d day of September, 1877, by G. and his wife, M. G., interchanging deeds with O. ; said G. and wife conveying to O. said two lots in Sissonville, and O. conveying to said M. G., the wife of G., the said tract of 390 acres. At the time of this exchange said G. had become involved in debt, and in February, 1879, a bill was filed by his creditors praying among other things that the conveyance made by O. to the said wife of G. might be set aside as fraudulent, and said 390 acres of land might be subjected to sale to pay the creditors of G. represented in said bill. Held :</p> <p>While, under the circumstances it might be proper to decree a sale of said 390 acres of land to satisfy the claims asserted in the bill, yet M. G., wife of G was entitled to a return of the amount she contributed towards paying for said 390 acres to be measured by the value of said lot in Sisson-ville owned by her, and that before a sale of said 390 acres was made, the court should have directed a commissioner to ascertain the value of said lot in the town of Sissonville, which was in the name of the wife of G. on the 23d day of September, 1877, when it was conveyed to O., in order that her rights might be respected in the distribution ; and in order to do that, the value of said lot in the town of Sisson-ville, held at that date by G., should also have been ascertained; that is, the said M G and the said G.’s creditors are entitled to share in the proceeds of the Blue Creek property in the proportion of the value of the respective Sissonville properties contributed by M. G. and M. respectively to the purchase of said property.</p>

Statement of the case by Judge BranNON : Bebort S. Carr is president of the Senate. Held: that he was not entitled to the writ for reasons stated in the opinion and decision of the conrt; and that the act of Goff in taking the oath was void and of no effect. ' He farther states in said petition that either GofFor Fleming was elected, hut that both were and still are under such disability, as prevents their acting; that…

<p>1. Sheriffs — Notice oe Motion.</p> <p>A notice to a sheriff under see. 35, c. 41, Code 1887, may be in the name of the plaintiff in the motion and need not be in the name of the state for the use of such plaintiff.</p> <p>2. SheRtef — StjspRNDIng BoND — Sureties.</p> <p>A sheriff levies a writ of fieri facias upon property. A claimant of the property gives a suspending bond. The sheriff returns the writ and said bond to the clerk’s office and leaves the property in the possession of the debtor without security, .and it is consumed by him. It is subsequently decided, that the property was liable for the writ. Upon a motion by the creditor against the sheriff and his sureties, they will be held liable to the creditor for the value of said property.</p>

<p>1. Damages — INSTRUCTIONS—Railroads.</p> <p>In an action for damages against a railroad company for killing stock upon their track, the following instructions asked for and given at the instance of the plaintiff are not erroneous, evidence having been introduced before the jury tending to prove the hypothetical statements therein contained : “(1) If the jury believe from the evidence, that the defendant’s engine and caboose killed the plaintiff’s horses, and that the said caboose had upon it two brakemen and a conductor, and that the engine had the engineer and. fireman aboard, and that, while the alarm-whistle was blowing, no brake was applied upon said caboose, but that said engine and caboose chased said horses and knocked them off without any apparent slowing of the train, then the said defendant is guilty of negligence, and the jury will find for the plaintiff. (2) If the jury believe from the evidence, that defendant’s engine chased plaintiff’s horses 600 or 800 feet, and that, when said horses were struck, said engine had not slacked its speed, then there was negligence on the part of the employes of the defendant to check or stop said train, and in that case they are instructed to find for the plaintiff. (3) If the jury believe from the evidence, that the defendant’s train killed plaintiff’s horses, and that said train was a light train ; that it had upon it two brakemen, a fireman and engineer ; and if they further believe from the evidence, that the alarm-whistle sounded 200 feet away from the horses, and that said brakemen and conductor took no steps to prevent the destruction of plaintiff’s horses,— then and in that case there is not only a want of care but negligence on the part of the defendant, and the jury will find for the plaintiff.”</p> <p>2. DAMAGES — INSTRUCTIONS.</p> <p>The jury in this case having fixed the damages at $200.00, the value of the horses ascertained by the witnesses other than the plaintiff, without reference to any peculiar or particular value, it was not error in the court to reject the following instruction asked for by the defendant, as the defendant was not prejudiced thereby : “The court instructs the jury, that, while the measure of damages is the value of the stock when killed, that value is the market-value of such stock not some peculiar or particular value attached to it by plaintiff.”</p> <p>3. Evidence.</p> <p>A question propounded to a witness, who is notan expert, calling for his opinion, which is not responded to by said witness expressing his opinion, is not such an error as would prejudice the party excepting to said question.</p> <p>4. Evidence.</p> <p>In the circumstances of this ease it was not proper to ask the engineer, if he did all in his power to avoid striking the horses of the plaintiff ; and the court did not err in rejecting said question.</p>

<p>1. Justice of the Peace — Appeal—Pleading.</p> <p>In an action commenced before a justice and taken by appeal to the Circuit Court, if the defendant flies an informal plea, which sets up a valid defence to the action, the Circuit Court should not deny him the benefit of his defence, when the plea is such, that a person of common understanding may know what is intended by it.</p> <p>2. Review.</p> <p>An action against a receiver as such can not be maintained without the leave of the court by which he was appointed.</p>

<p>1. Husband and Wife — Gifts.</p> <p>Where a wife delivers money or property of her own to her husband, which he uses in his business, the presumption is, that such delivery was intended as a gift; and in order to constitute such delivery a loan as r gainst the creditors of the husband, the wife must prove an express promise of the husband to repay, or establish by the circumstances, that it was a loan, and not a gift.</p> <p>2. Husband and Wife — Gifts.</p> <p>When the facts and circumstances tend to show, that a gift was intended, and that the husband used and dealt with the property as his own, the mere parol testimony of the husband and wife of a private understanding between themselves, that the transaction was by them considered or intended as a loan to the husband by the wife and not a gift, will not as against the creditors of an insolvent husband rebut the presumption of a gift.</p>

<p>1. Appeal — Certiorari—Circuit Court.</p> <p>Upon a writof certiorari used as an appellate proceeding to bring to the Circuit Court for review a judgment or order of an inferior tribunal, the Circuit Court should decide all matters of law and fact, including those on the merits fairly arising on the record, either affirming such judgment or order, or reversing or modifying it, and should render such judgment, as the inferior tribunal should have rendered, or remand it to that tribunal, where further proceedings are necessary with distinct decision • on the points involved in the latter event.</p> <p>2. Appeal — Circuit Court.</p> <p>The Circuit Court, where such further proceedings are necessary can not retain and try the cause, but must remand it to the inferior tribunal for such proceedings.</p> <p>3. Appeal — County Commissioners — Elections.</p> <p>County commissioners in canvassiug returns of an election for congress .on a re-count sign various exceptions for alleged errors taken by one of the candidates voted for, and the count is completed and result declared. The party excepting obtains a cer-tiorari to review the action of commissioners, and the Circuit Court reverses it, and remands the matter to them, with directions to again perform the work of canvassing the returns. Held, that commissioners are not functus officio, but are yet competent to canvass the returns in compliance with the order of the Circuit Court.</p>

Statement of the case by G-keen, Judge: This was a chancery suit brought September 12, 1887, in the Circuit Court of Braxton county.

Statement of the case by GreeN, Judge : This is an action of ejectment brought August, 1884, in the Circuit Court of Mason. Held: that this line as run by Rollins was the division-line, for they had warned Yanmetre not to cut beyond this line; and they cut up to it without any objection from Yanmetre; that the land lying between this crooked division-line run by Rollins in 1870 and the line run by courses and distances in the two deeds from D..C. Sayre of…

<p>1. REVERSAL OE DECREE — DEMURRER TO EVIDENCE.</p> <p>Where a case is tried by the court in lieu of a jury, the appellate court must regard the ease as upon a demurrer to the evidence ; and it will not reverse the judgment of the trial-court, upon the ground that it is contrary to the evidence, unless after disregarding all the conflicting evidence of the defendant in error there is not sufficient legal evidence in the case to warrant the judgment.</p> <p>2. Reversal oe Decree &c — Trial.</p> <p>The matter of the order and time of the introduction of evidence is largely in the discretion of the trial-court, and will not be interfe.rred with by the appellate court, where no injustice has been done.</p>

<p>1. Fraudulant Conveyance — Statute of Limitations.</p> <p>When a father conveys to his son a portion of his estate'for a consideration not deemed valuable in law, said conveyance can not be set aside for that cause only in a suit brought for that purpose.after the lapse of five years from the date of said conveyance.</p> <p>2. Fraudulent Conveyance — Burden of Proof — Evidence.</p> <p>Where a bill filed by a creditor alleges, that a deed from said father to his son was in fact voluntary although reciting on its face a valuable consideration, and the son in his answer denies the allegation and claims, that he paid a valuable consideration for said land, the burden of proof is on the son to show that said consideration was paid, and the recital of the deed is no evidence against the creditor.</p> <p>3. Fraudulent Conveyance — Statute of Limitations.</p> <p>Although fraud in fact after the lapse of five years from the date of the conveyance must be alleged and shown, to impeach such conveyance even as to an existing creditor, yet fraud may be inferred from the facts and circumstances of the case.</p>

<p>1. PbomissoRy Notes — Sureties—ContributioN.</p> <p>Where a joint and several promissory nótelas executed by D. as principal and B, N, & P., as sureties payable to G., and N. pays a portion of said note after judgment has been rendered against him alone thereon, if such payment was made by N., when he was indebted to D., the principal, in an amount sufficient to pay the judgment so obtained against him, or if after the maturity of said note said N. had in his possession or under his control money belonging to said D. sufficient to pay off said note or judgment and did not so apply it but paid it back to said B., said N: is not entitled to contribution from his co-sureties, even if he afterward paid said note or judgment out of his own money.</p> <p>2. Promissory Notes — Sureties—Contribution.</p> <p>A surety is entitled to the benefit of any indemnity or-security held by his co-surety ; and if the co-surety has it in his power to pay off and discharge the indebtedness, for which they are jointly liable out of money or other thing belonging to the principal, and fails to do so, he can not call upon his co-surety for'contribution.</p>

<p>1. Executors and Administrators — PartNers—Sureties.</p> <p>Two parties are engaged in business in another state, — one living in this state, one in the other, — and the one living in this state dies, and the other becomes one of his executors under a qualification in this State. At his death the business is to be closed up, and partnership-debts are to be collected and paid, and the effects sold. If, when this is accomplished, the survivor is insolvent, the sureties in the executorial bond are not liable for the interest of the deceased in the partnership ; but if said survivor is then solvent, they are liable.</p> <p>2. Executors and Administrators — Partners—Sureties</p> <p>If at the time when it may he said under the law, that the business was in such condition, that it was the duty of the survivor to turn into his hands as executor the share of the deceased in the assets, the survivor was insolvent, his sureties in such bond are not liable; if he is then solvent, they are liable.</p> <p>8. Executors and Adminstrators — Partners—Sureties.</p> <p>If, when the survivor makes a statement of receipts and disbursements as surviving partner in winding up the business showing a balance in his hands to be divided, he is insolvent, so that such balance is not substantial assets, his sureties in such bond are not liable for such balance ; if he is then solvent, they are liable,</p> <p>4. Executors and Administrators — Sureties.</p> <p>Liability of sureties in the bond of an executor or administrator is limited by the terms of the coveuant of the bond and can not be extended by implication.</p> <p>5. Executors and Administrators.</p> <p>A judgment against an executor is conclusive both as to the validity aud amount of the demand' on both executors and legatees.</p> <p>6. Sale — Promise.</p> <p>Where A. for a valuable consideration paid by him purchases property of B , which is by the terms of the sale to be conveyed to C. and is afterwards so conveyed, and C. promises in consideration thereof to pay a debt due from A. to D., the promise of'C. to pay such debt though not in writing is binding on him, if assented toby D.</p> <p>7. Witness.</p> <p>After G.’s death D. is a competent witness to prove C.’s promise.'</p> <p>8. EXECUTORS AND ADMINISTRATORS — NEGLIGENCE.</p> <p>An executor is not to be charged with a debt when it becomes due, but only when he actually receives it, unless it is shown to have been lost by his negligence or improper conduct.</p> <p>9. Executors and Administrators.</p> <p>A debt due to an executor individually from a legatee may be insisted on as part payment of the legatee’s legacy.</p>

<p>1. CERTIORARI. ■</p> <p>, On suggestion of diminution of the record a writ of certiorari is effectual to bring to this court the true and correct record, no matter in what respect the transcript, as certified in the first instance, may vary from or misrepresent such record.'</p> <p>2'. Indictment — Forgery—CRIMINAL Practioe.</p> <p>The form of the indictment for forgery and uttering forged instruments, found in Mayo’s Guide, (Ed. I860,) p. 537, is good ■ as to both counts.</p> <p>3. Indictment — Forgery—Criminal Practice.</p> <p>Neither in an indictment for uttering or attempting to employ as true a forged instrument, nor in one for forgery is it necessary to name the person intended to be defrauded, as the Code of 1887, c. 158, sec. 8, dispenses with that in both such cases.</p> <p>4. Indictment — Forgery—Criminal Practice.</p> <p>It is not necessary in such indictment to allege, that the act was to the prejudice of another’s right; but it must appear from the description of the writing in the indictment, that it is such as might prejudice his right.</p>

<p>1. Summons — Revebsau of Judgment.</p> <p>A summons issued by a justice in a civil suit is served by delivery of a copy to the defendant by a private individual, as shown by his affidavit. Defendant does not appear, and judgment is given against him. He then takes an appeal to the Circuit Court. In that court he moves to quash this return, on the ground that the person so serving had not been appointed a special constable, and the court overrules the motion to quash. Defendant then makes full defence before a jury, and there is judgment upon the verdict against him for $107.85. Under, the facts of this ease this Court will not reverse the judgment for the overruling of the motion to quash the return.</p> <p>2. Summons.</p> <p>Qucere, can a summons issued by a justice be served by a credible person, though not an officer, he verifying his return by an affidavit ?</p> <p>3. Cleric op Circuit Court — Fees.</p> <p>A clerk of á Circuit Court may maintain an action for his fees without first having placed them in an officer's hands and had them recurned, “No property found.”</p>

<p>1. Bill of Review — DemuRREb.</p> <p>Where a bill of review is filed to review and reverse a decree on the ground of newly-discovered evidence, and the bill on its face shows, that the facts stated as relied upon are immaterial and irrelevant, the bill should be dismissed on demurrer.</p> <p>2. Bill op Review.</p> <p>Where errors apparent on the face of the decree are relied on in the bill of review to reverse the same, it is not allowable to look into the evidence in the ease to show, that the decree is not supported by the facts proven.</p>

<p>1. RECEIVERS.</p> <p>In a suit pending to subject lands to the payment of liens thereon the court in a proper case may appoint a receiver to take charge of the lands and rent the same, until a sale can be made.</p> <p>2. Receivers.</p> <p>A receiver may be appointed in such case, whenever it is shown in any proper manner, that the debtor is insolvent, or that the lands are likely to prove insufficient tó satisfy the undisputed or ascertained liens thereon.</p> <p>8. Receivers--Notice.</p> <p>Where the motion is made in term-time in a pending suit, no notice to the debtor is necessary.</p>

<p>1. PartitioN — Sale.</p> <p>In a suit for the partition of a mill-property, which is not susceptible of partition in kind, the plaintiff, who is the owner of one sixth of the property, offers for the whole $5,000.00 and claims, that it is worth more than that sum, and the court at the instance .of the defendant, who owns the other five sixths and states, that he does not wish to sell, and offers to pay the fair value of the plaintiff's interest, refers the cause to a commissioner, who reports the value of the plaintiff’s interest at $550.00. Held: It was error for the court to decree that upon the payment of said $550.00 the plaintiff should convey his interest to the defendant. Instead of such decree the court should have ordered the whole property to be sold at auction. .</p>

Statement of the case by GREEN, Judge. On September 8, 1824, Daniel Stringer obtained a patent from the commonwealth of Virginia for 2,000 acres of land at the forks of the Little Kanawha river in what was then Lewis county. On September 25, 1828, he conveyed this and other land to Gideon D. Camden and James W. Porter, trustees, to secure the payment of several debts due to one Daniel Mason of Culpeper county, Va.

<p>1. Appellate Oourt — Commissioner op Court — Circuit Court.</p> <p>Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disaffirmed by the Circuit Court, the appellate court must determine for itself from the facts and- circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or that of the Circuit Court.</p> <p>2. Appellate Court — Commissioner op Court--Cibcuit Court.</p> <p>A case, in which the appellate court upon the facts and evidence sustained the action of the Circuit Court in overruling the findings of the commissioner and in sustaining exceptions taken to the commissioner’s report.</p>

<p>1. Notice — Recordation".</p> <p>A., having the equitable title to real estate, executed a trust-deed thereon to secure a debt to B., and said deed was duly recorded. Subsequently A. sold the property to C., and by direction of A. the holder of the legal title conveyed the same by deed directly to C., who, after his deed had been recorded, executed a trust-deed upon the real estate to secure a debt, to D. Held: The recordation of said trust-deed to secure a debt to B. did not operate as constructive notice to D., and the lien of D. will have priority over that of B., unless B. shows, that D. had actual notice of the existence of his deed at the time D. acquired his lien.</p> <p>2. Issue Out op ChanCery — Reversal op Decree.</p> <p>A chancellor should not direct an issue out of chancery, until the plaintiff has thrown the burden of proof upon the defendant. Therefore, where there is a direct conflict between two witnesses, the one affirming and the other denying the fact to be p'roved i no issue should be directed ; and if one is directed, upon which the jury render an affirmative verdict, and a decree is made accordingly, the appellate court will reverse the decree, because the issue was improperly ordered.</p>

<p>1. Ejectment — Evidence—Title.</p> <p>In ejectment, when both parties claim to derive title from the same third person, the rule is well settled, that it is prima facie sufficient for plaintiff to prove such common derivation of title without proving, that'such third person had title to the land in controversy.- ■■</p> <p>2. Ejectment — Title.</p> <p>■ A plaintiff in ejectment against one in actual possession must recover on the strength of his own title, not on the weakness of his adversary’s.</p> <p>■ 3. Deed — Title.</p> <p>A deed conveying a tract of land by boundary, but excluding a tract of fifty acres theretofore sold to another other than the grantee in such deed, does not pass to such grantee legal title to said flfty.acres, even though no deed for said fifty acres had been made to such other person, who purchased it.</p>

<p>1. Bond — PIjEading—Removal of Causes.</p> <p>Where a suit is brought in a State court and the defendant has been arrested and under the Code, c. 106, s. s. 31, 32, has given' bond to answer interrogatories filed before a commissioner of said court or in default thereof to satisfy the decree rendered in said suit, a plea setting up the fact, that said suit has been removed to the United States court, and that no decree lias ever been rendered in said suit by the State court, is immaterial.</p> <p>2. Bond — PbiNoipal and Surety.</p> <p>In such case, if a decree has been rendered by the United States court against the defendant, and he fails to answer interrogatories filed before a commissioner of the State court, as required in the condition of said bond, he and his sureties upon said bond will be liable for the amount decreed against him in the United States court,</p>

<p>1. Specific Perfobmajstce — Statute of LimitatioNS.</p> <p>J. M. B. by his attorney in fact, T. M,, executed a title-bond to J. J. N., dated September 18,1848, in which is recited the fact, that J. M. B. by his attorney, T. M., had bargained and sold unto the said J. J. N. 150 acres of land more or less lying in a certain boundary situate on the right-hand fork of Steer run, for the consideration of one dollar per acre, and said B. bin'ds himself upon the payment of the purchase-money to make unto said J. J. N. a good and sufficient title to the said 150 acres of land to be laid off in an oblong square, and shortly afterwards said attorney in fact surveyed and marked said 150 acre tract, and J, J. N. took possession and lived upon the same and cultivated and improved it until his death, which occurred in.1866, and on the 17th day of August, 1852, J. M. B. receipted to J. J. N., for two notes on J. L. aggregating $120.00, which when collected were to be applied on said purchase-money, which notes, the evidence shows, were collected by said J. M. B., who admits in his answer to a bill filed to specifically enforce said contract, that said title-bond dated September, 1848, was treated as ratified. Held: In a suit brought in June, 1875, by the heirs-at-law of J. J. N., to enforce specific performance of the contract the plaintiffs were entitled to specific performance of said contract under the circumstances proven in the ease, and said claim is not barred by the lapse of time or the statute of limitations.</p>

<p>1. ContRaot — Burden of Proof.</p> <p>Where a county court made a contract for the construction of a bridge in aecordence with certain specifications attached to and made part of the contract, in a suit by the contractors to recover. a balance claimed to be due them on said contract, after the work was completed and received by the county, as they claim, the plaintiff, must-show affirmatively, that they have complied with said contract and specifications, or that said work has been received, .before they will be entitled to recover.</p> <p>2. Contract — Evidence.</p> <p>If the plaintiff^ themselves offer in evidence an order of the ■ county court, which shows, that the county court acting upon the report of the committee appointed to superintend the building of said bridge, which stated that it would take all, that remained unpaid, to make good certain deficiencies in said work; and shows on its face,' that said court declines to receive and pay for said work, said order is competent evidence upon the question as to whether said work had been received by the county or not. Following Kinsley v. Monongalia Co. 31 W. Va. 464 (7 S. E. Rep. 445.)</p> <p>3. REVERSAL OF DECREE &C. — BILL OF EXCEPTIONS.</p> <p>When a bill of exceptions contains a certificate of all the testimony offered, instead of all the facts proved, the court can not reverse the judgment of the court below for refusal to set the verdict aside as contrary to evidence, unless by rejecting all the conflicting evidence of the exceptor, and giving full force and credit to that of the adverse party, the decision of the court below is plainly wrong.</p>

<p>Certiorari.</p> <p>A petition for a writ of certiorari to bring to the Circuit Court for review proceedings of the commissioners of a County Court in the canvass of the returns of an election filed by a candidate, which fails to show, that he was prejudiced by the errors complained of, is not sufficient to justify the award of such writ, and will be held bad without demurrer at the hearing; and a judgment of a Circuit Court reversing the action of the commissioners upon a certiorari based on such petition will be reversed here with costs in this Court against the party who filed such petition.</p>

<p>1. Injunction — JURISDICTION—Equity—Elections.</p> <p>Equity has no jurisdiction to enjoin commissioners of a County Court from certifying to the governor the result of their canvass of the vote in their county for a representative in the congress of the United States.</p> <p>2. Injunction — Contempt.</p> <p>An appeal from a decree in a suit in equity will not bring up for review an order discharging a rule to show cause why the party shall not be punished for contempt in disobeying an order of injunction made in such suit.</p>