Volume 33 — West Virginia Reports

<p>1. Railroad Companies — Occupation of Street.</p> <p>Under tlie provisions of our statute (Code 1887, c. 54, s. 50,) a railroad company with the assent of the municipal authorities may construct and operate its railroad along a public street of a city in a cut or excavation below the comrpon level of the remaining portion of the street in such manner as will appropriate a portion of the street to the exclusive use of the railroad company, provided such excavation does not occupy the entire street unnecessarily, or such considerable portion thereof, as to substantially prevent the use of the street by the 'general public, and provided, further that it does not unnecessarily impair the usefulness of the street as a highway for the general public.</p> <p>2. Railroad Companies — Injunction—Damages.</p> <p>The abutting lot-owners on the street so occupied by the railroad company, whether they own the fee in the giound covered by the street or not, will not be entitled to enjoin the railroad company from making suck excavation and constructing its road along the street in a careful and proper manner, unless the injury therefrom to the lot-owner will be such as will entirely destroy the value of his property and therefore be equivalent to a virtual taking of it by the railroad company. In the case at bar it is held, that there will be no such destruction of the value of the plaintiff’s property as will entitle him to an injunction to restrain the railroad company from constructing its road until the damages are ascertained and paid, or secured to be paid.</p>

<p>1. Floatable Streams — Highways.</p> <p>The public in this State have a right to use as highways not only tidal rivers, in which the tide ebbs and flows, and fresh water rivers capable of being profitably used to carry on commerce in their natural state without artificial improvement, but also floatable streams, that is, such streams as are capable of being profitably used by the public in their natural state to float logs or timber or the products of mines or tillage to markets or mills.</p> <p>2. Floatable Streams — Highways.</p> <p>To be a floatable stream so as to entitle the public to use it as a public highway, the stream need not be at all times capable of floating logs, but it will suffice, that, when the water is high, it is thus capable for such a length of time as would make it useful and profitable for the public to so use it as a highway to float logs to mill or market.</p>

<p>1. LANDLORD AND TENANT — BEPAIRS.</p> <p>A lessee of a store-room can not recover in an action of assump-sit against bis lessor for damages sustained by reason of the failure of said lessor to repair damages to said building caused by unavoidable accident, where there is a written lease between said contracting parties in the absence of an express covenant, that said lessor should make such repairs.</p> <p>2. Landlord and Tenant — Repairs—Desiurrer.</p> <p>Where a written lease of such building provides, that the lessee shall keep the same in repair except as to “unavoidable accidents and natural wear and tear,” the law will not imply a contract on the part of the lessor to repair damages caused by unavoidable accidents, and a demurrer will be sustained to a declaration setting forth these facts in a special count.</p> <p>3. Landlord and Tenant.</p> <p>The lessee in such an action will be confined to the terms of the written contract declared upon and ban not recover upon a verbal contract or understanding made or had contemporaneously with said written lease.</p>

<p>1. Railroad Companies — Bridges—Damages.</p> <p>Though a railroad company has under its charter the right to bridge a stream, it must do so in a proper, skillful manner, leaving ample way for the passage of the water, so as to save riparian owners from overflow ; and if it fail so to construct its bridge, and by reason of its bridge-structure narrowing the natural channel backwater is caused, overflowing the premises of a riparian owner and causing him damage, the campany is liable-</p> <p>2. Railroad Companies — Damages.</p> <p>Where a person or corporation is vested with authority by the legislature to do an act, it will be protected from all responsibility, and liable to no suit at law or equity, provided what it is authorized to do is done carefully and skillfully, though without such authority it would have been a nuisance, but, if done carelessly and unskillfully, and damages result from such carelessness and want of skill, it will be responsible.</p> <p>3. Evidence — Eeveesal op Judgment.</p> <p>Where illegal evidence is admitted, against the objection of a party, it will be presumed that it prejudiced such party, and if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for reversal of the judgment; but if it clearly appear that it could not have changed the result, — that, if it had been excluded, the same result would have followed,— it will not be cause for reversing the judgment.</p> <p>4. Evidence — Demurrer to Evidence —Reversal of Judgment.</p> <p>If in such case there is a demurrer to evidence, and an alternative verdict, and, after disregarding upon such demurrer such illegal evidence, and treating the balance of the evidence as is proper under the rules applicable to demurrers to evidence, there is plainly enough evidence to sustain a judgment for the demur-ree, the admission of such illegal evidence will not reverse the judgment; otherwise it will.</p> <p>5. Evidence.</p> <p>Opinions merely of a witness are not generally admissable evidence. Point 2 of syllabus in Sail v. Lyons, 29 W. Va. 410 (1 S. E. Rep. 582,) approved.</p>

<p>1. Publication — Appeal—Practice.</p> <p>When a case -is reversed by this Court and remanded to the Circuit Court, because it does not appear affirmatively that the . order of publication in the cause was posted as required by law, if said order of publication was published and posted as required by law, the defect may be cured, after the ease is returned to the Circuit Court, by the filing in the cause of an affidavit to that effect of the party, who posted said order.</p> <p>2. Appeal.</p> <p>To confer jurisdiction on this Court in a cause, where the interest of the party applying for the appeal is merely pecuniary, it ’ must' appear, not only that the applicant is prejudiced by the decree of the court below, but also that the amount in controversy exceeds the value of ¡JIOO.OO exclusive of costs.</p>

<p>Mechanics’ Lien — Sub-conteactoes .</p> <p>A sub-contractor in the second degree, who shows no privity of contract with the owner of the land, on which a building is erected, or with his duly authorized agents, who furnishes material or labors in the erection or construction of said building, can acquire no lien on said lot or building by giving the notice provided for in section 5, c. 75, Code W. Va., within thirty days after the labor was performed or material furnished.</p>

<p>1. Wills — Life Estate in Chattels — Evidence.</p> <p>Where chattels are given by will to a person for his life, without any limitation over in remainder, the legatee for life has not absolute property in such .chattels, but his' estate is accountable to the estate of the testator for such chattels as the legatee in his lifetime, sold and converted to his use, or his administrator, after his' death, sold and converted to the use of such legatee’s estate ; but such is not the case with such chattels, as are consumed in their use (qucein usu oonsumuntur) in which the legatee for life has an absolute property.</p> <p>2. Wills. ,</p> <p>In,order to vest in such legatee an absolute property in such chattels as are consumed in their use, they must be given as a specific, not as a general legacy, and not as a part of the residuum.</p> <p>3. Wills.</p> <p>There may be a legacy given by implication, but to raise such implication it must be necessary to do so in order to carry out a manifest and plain intent of the testator which would fail unless such implication be allowed. Points 6, 7, 8,12, 13, and 14 of the syllabus in Graham v. Graham, 23 W. Va. 46, reaffirmed.</p> <p>4. Wills — Evidence.</p> <p>A document not purporting to be a copy or abstract from the assessor’s personal property list, but merely a certificate of a clerk of a county court of the assessment or non-assessmest of a person or his property in such book, is not admissible in evidence.</p> <p>5. Wills — Evidence.</p> <p>In a suit by the personal representative of the testator to recover for chattels converted as above supposed, such personal property book itself would not be admissible to show the value of the personal estate of the testator or the legatee for life.</p> <p>6. Evidence.</p> <p>It is not error to exclude evidence which would not have benefitted the party offering it.</p> <p>7. Evidence.</p> <p>Where evidence is improperly rejected, and such evidence tends lo prove an item which may or may not have been taken into account by the jury in fixing the amount in their verdict, and it is manifest and plain that outside of such item, under the evidence, there was ground for finding a verdict for at least the amount found by the jury, and a new trial is refused by the court below, this Court will not for that cause reverse the judgment.</p> <p>8. Evidence — DECLARATIONS.</p> <p>A declaration made by a stranger to the controversy now dead, and against his pecuniary interest, may be admitted as evidence to show the existence of a fact relevant in such controversy as an exception to the rule excluding hearsay.</p> <p>9. Evidence — Jurors.</p> <p>Reaffirming point 1 in Probst v. Braeunlieh, 24 W. Va. 356, it is settled in this state, as a general rule, with but few, if any, exceptions, that the testimony of jurors will not be received to impeach their verdict.</p>

<p>Justices op the Peace — Continuance.</p> <p>In an action before a justice, if the defendant, on the return day of the summons, makes oath that he has a just de-fence to the action, he is of right entitled to a continuance of the case for seven days ; but when he fails to make such'oath, and simply moves for a continuance because he is without counsel and because of the absence of a witness, he is not entitled to a continuance, unless he shows that he has used due diligence to secure the attendance of such witness.</p>

<p>1. ARBITRATION AND AWARD.</p> <p>An agreement to submit a controversy to arbitrators, which provides that the award shall be entered as the judgment of the court, can not, under our statute, (chapter 108, Code,) be revoked by any party without the leave of such court.</p> <p>2. Arbitration and Award.</p> <p>An award, made under a submission to two arbitrators and an umpire to be selected by them, is valid, although it is signed by only one arbitrator and the umpire.</p>

<p>1. Damages — Justice oe the Peace — JurisdictioN.</p> <p>In determining the question of jurisdiction in an action before a justice for a wrong the amount claimed in the summons, not the damage shown by the testimony, must control.</p> <p>2. Damages — Practice.</p> <p>Where the plaintiff claims damages for the destruction of 500 rails, about one mile of board fence, some wood upon his land and a lot of growing timber, caused, as he alleges, by the neg-. ligence of the defendant in permitting fire to emit from its locomotive and spread over his land, he will not be permitted to prove general damages done to his farm, but he will be confined to the specific items of damage alleged in his complaint.</p>

<p>Assumpsit — County Obdebs.</p> <p>An action of assumpsit will not lie against a County Court upon an order issued by a County Court upon the sheriff of a county in favor of the owner of such order.</p>

Statement of the case by Gkeen, Judge: On the 24th day of August, 1887, in the Circuit Court of Cabell county in the matter of proceedings against Eustace Gibson for contempt this action was taken and entered on record : “Be it remembered, that at this said term, to wit, at a Circuit Court held for Cabell county at the court-house of said county on the 23d day of August, 1887, there was an order made and entered in this cause, which is in the words and figures following, to…

<p>1. New Trial — Certiorari—Justice of the Peace — Practice.</p> <p>Where a cause is removed after verdict and judgment from a justice on a writ of certiorari to the Circuit Court, under the third section of chapter 153 of the Acts of 1882, upon the hearing such Circuit Court will, where there is a certificate of the evidence incorporated in a bill of exceptions signed by said justice, review the judgment of said justice upon the merits, and if of opinion to reverse the judgment will direct a new trial before a jury, unless neither party requires a jury.</p> <p>2. Recoupment — Contract—Peactice.</p> <p>Where a defendant seeks to recoup the plaintiff’s claim by showing that said plaintiff had failed to comply with his contract in performing the work charged for in his claim sued on, and the defendant had been thereby compelled to pay out money to make good the defects in the plaintiff’s work, said defendant can not byway of recoupment recover a judgment against the plaintiff by showing, that his damage thus sustained exceeded the plaintiff’s demand.</p>

Statement of the ease by Brannon, Judge : On the 2d day of March, 1888, Murtha Walsh brought an action of assumpsit in the Circuit Court of Ohio county, against Jno.

Statement of the case by Geeen, Judse : This was a chancery suit, brought in the Circuit Court of. Mason county by H. E. Howard, special receiver of the court, for the enforcement of judgment-liens on the real estate of Hiram Stephenson.

<p>1. Execution — Justice oe the Peace.</p> <p>An execution, purporting to be issued upon the judgment of a justice, when there is in fact no such judgment but simply the verdict of a jury, is void, and the justice should quash such execution upon notice and motion.</p> <p>2. Appeal — Circuit Court — Justice oe the Peace.</p> <p>The refusal of a justice to grant an appeal from his action or judgment in a proper ease is sufficient cause for the granting of such appeal by the judge of the Circuit Court upon the petition of the party aggrieved stating such refusal of the justice.</p>

<p>1. Venue — Foreign Corporations — Service op Process — Cause op Action.</p> <p>A foreign corporation doing business in this state, having no principal office or president or other chief officer resident therein, may be sued in any county wherein it does business, where the cause of action arose out of this state, if process can be legally served in such county.</p> <p>2. Master and Servant — Contributory Negligence.</p> <p>If an employe willfully encounters dangers which are known to him, or are notorious or apparent, the employer is not responsible for an injury occasioned thereby.</p> <p>3. Master and Servant — Negligence—Damages.</p> <p>If a master is guilty of negligence in failing to procure suitable appliances and machinery for carrying on his business, and injuries result therefrom to his servant, he must respond in damages.</p> <p>4. Master and Servant — Damages—Burden op Proof.</p> <p>In an action by the servant against the master for injury from defective machinery or appliances, the burden is on the servant to show that the same was defective.</p> <p>5. Master and Servant — Damages.</p> <p>A servant can not recover for an injury to him from such defective machinery or appliances, 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>

<p>LICENSES — CONSTITUTIONAL LAW.</p> <p>That portion of section 1, c. 32, Code 1887, which provides that no person, without a state license therefor, shall “keep in his possession, for another, spirituous liquors,” eie.,is unconstitutional and void.</p>

<p>1- Res- Judicata — Decree oe Court of Appears.</p> <p>Where a question erf law or fact is once definitely settled and determined by a decree of this Court, and the cause is remanded for further proceedings, a party to said suit can not by subsequent pleadings call in question the eonclusiveaess of the questions determined by said decree.</p> <p>2. Res Judicata.</p> <p>Where the question raised by a bill in equity is as to whether certain bonds and notes therein described are part of the estate of a decedent, or have been disposed of by him by assignment and delivery, as a gift to two of his brothers, and said property has by a decree of this Court been determined to belong to the estate of said decedent, said decision is binding and conclusive upon all of the distributees of said estate.</p>

<p>1. Parties.</p> <p>In a bill brought by a party, to whom a widow has conveyed her dower interest in two tracts of land, to have dower assigned therein, which parcels of land at the time said suit is brought, are held and owned by different parties, the persons owning and holding said respective tracts of land are necessary parties defendant.'</p> <p>2. Parties — Ex Mero Motu.</p> <p>Although the objection to the bill for want of proper parties is not properly raised in the ■ Circuit Court by demurrer, plea or answer, this Court will on its own motion reverse and remand the cause for want of proper parties, where such defect is apparent upon the face of the bill and exhibits.</p>

<p>1. Usury.</p> <p>Where usurious interest has been paid upon a debt, and the debt, or any part of it, is unpaid, a court of equity, in stating the account between the parties, will credit upon the principal of what is unpaid whatever usurious interest has been paid, as of the date of its payment.</p> <p>2. Usury.</p> <p>A note for the payment of a sum of money given bona fide ■ for purchase-money for land, and not as a cover for a loan or forbearance of money, though it call for interest on that sum in excess of the rate allowed by law for the loan or forbearance of money, is not usurious. What is thus called “interest” is as much a part of the purchase-price of the land as the principal sum, and the rate of interest so called for will be enforced.</p> <p>3. Commissioners of Court,</p> <p>Where questions purely of fact are referred to a commissioner, his finding will be given great weight, though not as conclusive as the verdict of a jury, and should be sustained, unless plainly not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, when the findings of a commissioner have been approved by the court below.</p> <p>4. REVERSAL OE DECREE — EVIDENCE.</p> <p>Where the decree sought to be reversed is based on depositions which are conflicting, and of such doubtful and unsatisfactory character that different judges might reasonably disagree as to the facts proved thereby,, or the proper conclusions to be deduced therefrom, the appellate epurt will decline to reverse the finding or decree of the chancellor, although the testimony may be such that the appellate court might have pronounced a different decree, if it had acted on the cause in the first instance.</p>

<p>1. EvideNce — Mortgages—Absolute Deed.</p> <p>It. is competent to prove by parol evidence that a deed absolute on its face is in fact a mortgage.</p> <p>2. Evidence--Absolute Deed — Mortgage.</p> <p>Where the parol evidence leaves the question doubtful whether the conveyance should be considered an absolute deed or a mortgage, a court of equity will incline to hold it a mortgage.</p> <p>3. Evidence — Absolute Deed — Mortgage.</p> <p>The following facts and circumstances have great weight in leading to the conclusion that such conveyance is a mortgage, and not an absolute deed: first, that the grantor was hard pressed for money ; second, that the conveyance was preceded by negotiations for a loan'by the grantee to the grantor ; third, that the parties did not apparently consider either the quantity or the value of the land conveyed ; fourth, that the price was grossly inadequate; and, fifth, that the possession remained with the grantor after the conveyance.</p> <p>4. Co-Tenants.</p> <p>One co-tenant or joint owner of land can not clandestinely, or without fair notice to his co-tenants, stipulate with third persons for any private or selfish advantage and benefit to himself in respect to the joint property ; and, if he does so, a court of equity will, at the option of his co-owners, compel him to divide such benefits.</p> <p>5. Co-Tenants.</p> <p>All purchases or sales made of or in respect to the common property of such joint owners by one of them, though made for his own benefit, will, at the option of his co-owners, be declared by a court of equity to be for the common benefit of all the owners.</p> <p>6. Co-Tenants.</p> <p>When several parties, as tenants in common, own lands subject to a mortgage, and they enter into an arrangement by which one of such owners, with other parties, agrees to pay off the mortgage or buy in the land, and hold it subject to redemption by the other owners, and such arrangement is not fully complied with, but one of the owners, without explicit notice to the others that he is not acting under said arrangement, buys in the land for his own benefit for the balance due on the mortgage debt, which is less than one tenth of the value of the lands, a court of equity will hold that the purchase was for the benefit of all the owners.</p>

<p>1. Constitutional Law — Regulation of Priva.te Business-Police POWER.</p> <p>It is not competent for the legislature, under the constitution, to single out owners and operators of mines and manufacturers of every kind, and provide that they shall bear burdens not imposed on other owners of property or employers of labor, and prohibit them from making contracts which it is competent for other owners of property or employers of labor to make. Such legislation can not be sustained as an exercise of the police power.</p> <p>2. Constitutional Law.</p> <p>The third section of chapter 63, Acts 1887, (Code 1887, p. 983) which prohibits-persons engaged in mining and manufacturing from issuing for the payment of labor any order -or paper, except such as is specified in the said act, is unconstitutional and void.</p>

<p>Employer ahd Employe — CONSTITUTIONAL Law.</p> <p>The fourth section of chapter 63, Acts 1887, which prohibits persons and corporations, engaged in mining and manufacturing and interested in selling merchandise and supplies, from selling merchandise and supplies to their employes at a greater per cent. of profit than they sell to others not employed by them, is unconstitutional an'd void, because it is class legislation and an unjust interference with private contracts and business.</p>

<p>1. Decbee.</p> <p>Though a decree be final, its finality will not prevent any proceedings by the court necessary and proper to carry it into complete execution.</p> <p>2. Decbee — Rule.</p> <p>Under the circumstances of this cause, it was erroneous to dismiss a certain rule absolutely,’without providing that such dismissal should not prejudice other proper proceedings to accomplish the relief sought by the rule. •</p> <p>3. Removal of Causes.</p> <p>Where in a cause a petition is filed to obtain relief as to part of a fund in the hands of a receiver under decrees in the cause, and that petition is removed for decision to another county, though there had been a final decree in the case, if it be doubtful whether the Circuit Court intended to remove the entire cause, or only the petition, it will be considered that the entire cause was removed, where necessary to administer full justice in the cause.</p>

<p>1. ADMINISTRATOR DE BONIS NON — APPEAR—PARTIES.</p> <p>When there is a decree in the Circuit Court against an administrator for money to be paid out of the assets in his hands to be administered, and the administrator then dies, and an administrator de bonis non is appointed by the proper authority, held, (1) such administrator de bonis non, and not the administrator of the deceased administrator, is the proper party to appeal from such decree ; (2) such administrator de bónis non may, within the time prescribed by law, petition for an appeal from such decree, stating therein the death of the former administrator, and exhibiting the order appointing him administrator de bonis non; and it is not necessary for him to make himself a formal party to the record by an order of the Circuit Court before petitioning for such appeal.</p> <p>2. Notice — Depositions.</p> <p>The publication of notice to take depositions under section 2, c. 121, Code, which requires the notice to be published once a week for four successive weeks, is completed on the fourth issue of the newspaper containing it; and if a reasonable time elapses between the date of said fourth issue and the taking of the depositions the notice will be sufficient.</p> <p>3. Giet — Donob and Donee.</p> <p>To constitute a valid parol gift, there must be an actual delivery of the thing given, but the delivery must be according to the nature of the thing given, and if the property is at the time in the possession of the donee, as agent for the donor or otherwise, it is not necessary that the donee should surrender to the donor his actual possession, in order that the latter may re-deliver the same to him in execution of the gift; but if the donor relinquishes all dominion over the thing given, and recognizes the possession of the donee as being in his own right, and the latter accepts the gift and retains the possession in virtue thereof, the gift is complete</p> <p>4. Giet — Donor and Donee.</p> <p>A case in which this Court held, under the facts and circumstances disclosed by the record, a gift inter vivos by an aunt to her nephew of certain money, which was shortly before, and, perhaps, at the time of, the gift in the possession of the donee, as the agent of his aunt, was a valid and complete gift.</p>

<p>1. Lost Instruments — Evidence—ActioNS Against Heirs— Giets Inter Vivos.</p> <p>A suit is brought upon an alleged lost bond, which is claimed to have been executed by O. and delivered to L., his granddaughter, for $1,500.00, dated in June, 1855, and payable after his death with interest from date, which execution, delivery and loss are denied, and the proof is considered insufficient to establish the same.</p> <p>2. Lost Instruments — Evidence—Personal Representatives.</p> <p>Although a judgment was obtained upon said obligation against the personal representative of C., it was not even prima facie evidence against the heir or devisee of his estate.</p> <p>3. Gift — Donor and Donee.</p> <p>In establishing a gift inter vivos, it is essential to clearly establish the delivery to the donee.</p> <p>4. Lost Instruments — Evidence.</p> <p>In order to maintain a suit to enforce the collection of an obligation claimed to be lost, it is essential not only that the loss be proven, but that the terms of the contract be clearly and definitely established.</p>

<p>1. PROHIBITION — Justices of the Peace — Evidence.</p> <p>Prohibition will lie to prohibit Justices and other petty tribunals, which are limited by law to the decision of controversies where the amouut falls within a specified sum, from exercising a jurisdiction wholly beyond their authority even after judgment, but before the judgment has been fully carried into effect; and in such cases the want of jurisdiction may be made to appear by matters dehors the record of the proceedings before such inferior tribunals.</p> <p>'2. PROHIBITION — Justices op the Peace.</p> <p>Where a claim for an amount exceeding the limit of a justice’s jurisdiction, due to,two or more persons jointly upon a single contract, is by the creditors, without the consent of the debtor, divided and apportioned among the creditors so that the amount assigned to each is within the jurisdiction of a justice, and one or more of the creditors sues on his portion before a justice and obtains judgment thereon, prohibition will lie, after judgment and before satisfaction, to prevent the justice and the creditor from enforcing such judgment.</p>

<p>1. LANDLORD AND TENANT — TITLE—-ESTOPPEL.</p> <p>In an action by the landlord against his tenant, whether the action be debt, assumpsit, covenant, or unlawful detainer, where neither fraud nor mistake is shown in the procurement of the lease, no proof of title is required by the landlord ; for in such case the tenant is estopped from denying the title of his landlord.</p> <p>2. LANDLORD AND TENANT — LEASE.</p> <p>If a tenant takes a secret lease or conveyance for the land from a third party claiming to he the owner, without the knowledge of his landlord, the character of his possession will not be changed.</p> <p>3. Parties — Co-Tenants—Unlawful Detainer.</p> <p>One joint-tenant or tenant in common may, in an action of unlawful detainer recover the possession of the whole land without joining his co-tenant in the action.</p> <p>4. Witness.</p> <p>Under our statute, sec. 23, chap. 130, Code 1887 — a party is a competent witness to testify in his own behalf in respect to a transaction or communication had personally between him and tlie agent of the deceased person, against the personal representative, heir or assignee of such deceased person, notwithstanding such agent is then dead.</p> <p>5. Landlord and Tenant — Lease—Title.</p> <p>A person, who, while in the possession of land, accepts alease therefor from one claiming to be the owner, may, after his term expires, by disclaimer and notice to such person, terminate his tenancy ; and he#will not in such case be required to surrender the possession before he will be allowed to set up an adverse title in himself or a third person:</p>

<p>FRAUDULENT CONVEYANCE — PARTNERS AND PARTNERSHIP — SOCIAL Assets.</p> <p>When one member of a mercantile firm purchases the interest of theother member, and in consideration thereof assumes to pay all the partnership debts, the firm and both members being at the time insolvent or on the eve of insolvency ; and shortly thereafter the purchasing partner, without paying any of the firm debts, conveys the whole of the assets of the late firm to a trustee in such a manner as to devote the whole thereof to the payment of his individual debts, held, such sale, being without any valuable consideration, is ineffectual to convert the social assets into individual property, and as to the equitable rights of the firm creditors such trust deed is fraudulent and void.</p>

<p>1. Contempt oe Court — Constitutional Law.</p> <p>Our Statute — sec. 27, ch. 147, Code 1887 — regulating the punishment for the classes of contempts therein mentioned, is constitutional and binding upon Circuit and other inferior courts.</p> <p>2. Contempt of Court — Circuit Court — Attorneys-at-Law.</p> <p>A Circuit Court has no power, under the provisions of said statute, by summary proceedings, to fine an attorney for writing and causing to be published in a newspaper a libelous charge against the judge of such court.</p> <p>3. CIRCUIT COURT — ATTORNEYS-AT-LAW.</p> <p>A Circuit Court may, independent and outside of the provisions of sec. 6, ch. 119 of Code 1887, strike the name of an attorney from the roll of such court for sufficient cause, but it can not, except in the manner provided by said statute, suspend or annul the license of an attorney.</p> <p>4. CIRCUIT Court — Attorney-at-Law.</p> <p>When an attorney commits an act, whether in the discharge of his duties as an attorney or not, showing such a want of professional or personal honesty as renders him unworthy of public confidence, it is not only the province but the duty of the court, upon a proper presentation of the case, to strike his name from the roll of its attorneys. But the base character which will justify such action must be such as shows the attorney to be an unsafe and unfit person to be entrusted with the powers of the profession .</p> <p>5. Circuit Court — Attorney-at-Law—Summary Proceedings.</p> <p>The Circuit Court may by summary proceedings, according to the common law, strike from its roll the name of an attorney who is guilty of writing and publishing in a newspaper a false and libelous charge against the judge of such court in respect to his official conduct, and the disclainer by the attorney of intentional wrong or disrespect to the judge or court will not excuse him, when the contrary appears upon a fair interpretation of the language employed.</p> <p>6. Circuit Court — Attorney-at-Law—Ex Mero Motu.</p> <p>Circuit Courts have jurisdiction and power upon their own motion, without formal complaint or petition, in a proper case, to strike the name of an attorney from the roll, provided he had reasonable notice and an opportunity to be heard.</p>

<p>1. EMINENT DOMAIN — CEMETERIES.</p> <p>Under our constitution private property can be taken only for public use.</p> <p>2. Eminent Domain — Cemeteries.</p> <p>An application to condemn land for public use must distinctly state that the land is needed for public use, and will, when con- . demned, be devoted to such public use.</p> <p>3. Eminent Domain — Cemetebies.</p> <p>An application to condemn land for cemetery purposes should also show that the land to be taken does not lie within 400 yards of a dwelling-house, unless to extend the limits of a cemetery already located, and then, that such limits will not be extended . nearer to any dwelling house which is within 400 yards.</p> <p>4. Eminent Domain — Cemeteries—Prooeedings.</p> <p>Statutes regulating proceedings for the condemnation of private property for public use must be strictly pursued in the proceedings, and the statutes themselves strictly construed.</p>

<p>1. Demurrer to Evidence — Supreme Court oe Appeals — New Trial — Damages—MottoN—Practice.</p> <p>Where a case is decided upon a demurrer to evidence, the judgment will be reviewed by this Court upon such demurrer to evidence, though there was no motion made in the trial-eourt for a new trial. But, where the ground for a new trial is excessive damages, this rule does not apply, as in that case there must be a motion in the trial-court for a new, trial.</p> <p>2. Admikistrators AND Executors — Promissory Notes — Surety — Mistake.</p> <p>An administrator, with money of his decedent, pays on a note made by his decedent, as principal, with sureties, an amount in excess of the sum applicable out of the assets to that debt, under the mistaken belief that he was surety in such note, and that the estate would pay a somewhat larger per cent, of its liabilities than it did. He brings in his own name an action of assumpsit against a surety to compel the surety to refund the amount so paid in excess of the ratable share of the assets applicable to such debt. He can not recover of the surety.</p>

<p>1. Vendor’s Lien-~Parties. .</p> <p>A deed conveying land reserves a lien for purchase-money, not declaring in whose favor it is reserved. If the note or bond for the purchase-money is, at the time of the conveyance, executed by the purchaser payable to a third party, he has a right to the debt; and the right to enforce the lien ; and the grantor is not a necessary party, nor, after his death, his personal representative or heirs. And if the note or bond were originally payable to the grantor in the deed, hut afterwards, with his assent, the purchaser takes up that note or bond, and, in place of it, executes ope to such third party, this does not extinguish the lien, but the third party becomes entitled to the debt, and to the lien as its incident; and, in a suit by him or his assignee to enforce it, the grantor, or, after his death, his heirs or personal representative, are hot necessary parties.</p> <p>2. Vendor’s Lien — Subrogation.</p> <p>Where a purchaser of land, pursuant to his contract, pays a lien on the land, binding his vendor’s estate in it, and such contract is abandoned by the parties, and the vendor becomes unable to execute it, though the purchaser took no assignment when he so paid the lien, yet he is entitled to he substituted to such lien, and equity keeps it alive for his indemnity.</p> <p>3. Vendor’s Lien-Subrogation.</p> <p>The purchaser, having so paid such bond, afterwards procures its owner, to whom he paid it, to assign it to him in writing, and then sues to enforce it against the land, setting up in his bill, and relying on, the assignment as his ground for relief, and praying a sale of the land, and for general relief. The answer and evidence show such payment without assignment, and the subsequent assignment. Under this bill he may, on the theory of subrogation, be decreed his debt.</p> <p>4. Vendor’s Lien — Subrogation—Rents and Profits — Permanent Improvements.</p> <p>While in such suit the purchaser shall have such relief, there must be charged against his debt rents and profits while he was in possession, abating therefrom permanent improvements made by him.</p>

<p>1. INJUNCTION — RECISSION OF CONTRACT.</p> <p>By an executory agreement providing for conveyance with general warranty, P. sells a tract of 550 acres of land to N., and N. sells P. eighty seven acres in part payment-therefor, and gives his five bonds for deferred payments. Afterwards, N. sells P. a tract of 274 acres of land in further payment. The parties take possession under these sales. When P. sold N. the 550-acre tract, it was under alien or liens binding it in P.’s hands, and it was sold under a decree therefor ; the purchase-money in N.’s hands not being sufficient to remove the incumbrance, and a large part of it not due when the land was decreed, and when sold. On one of the purchase-money bonds P. obtains judgment against N., and N. brings a chancery suit enjoining the judgment, and praying that it be perpetually enjoined, and the contracts and bonds given by him rescinded and annulled. P. filed an answer, claiming specific execution by decreeing him the difference between the price N. was to pay him for the 550 acres, or, if that relief could not be given, then rents and profits and waste to the 550 acres ; and N. claimed damages for failure to convey. The decree dissolved the injunction and dismissed the bill, without ordering an account between the parties, or rescinding the contracts or bonds. Held, such decree is erroneous.</p> <p>2. INJUNCTION — RECESSION OF CONTRACT.</p> <p>The court, before dissolving the injunction, by reference to a commissioner or by a jury, if any one asked a jury, should have ascertained what P. was entitled to for rents and profits and waste, and what rents and profits, and compensation for failure to convey, N. was entitled to ; and, if any sum should thus be found due P., a decree should have been entered holding the judgment firm as a security for such amount, and dissolving it as to any excess ; and should have rescinded the two contracts between the parties, and cancelled, and directed, the surrender of N.’s bonds.</p>

<p>1. Evidence — Records of Virginia Courts.</p> <p>A copy of a record or paper in the clerk’s office of any court in the State of Virginia, attested by the officer in whose office the same is, is admissible as evidence i'n this State, though it has not the seal of the court or a certificate of a judge, as required by the act of congress relating to authentication of records.</p> <p>2. Evidence-Wills.</p> <p>A copy of a will having annexed the following certificate: “ Virginia. In W. county court, September term, 1888. The will and testament of M. S., deceased, dated 2d February, 1884, was presented in court, proved by the oaths of R. C. J. and H. B. C. B., two of the subscribing witnesses thereto, and ordered to be recorded. Teste: William B. F., Clerk. A copy. Teste: William B. F., Clerk,is, as regards mere form or manner of attestation, admissible.</p> <p>3. EvideNcb-Wills-ForbigN Probate.</p> <p>A sentence of probate made in another State upon a will is not evidence in the courts of this State of the validity and due execution of the will as to lands situate in this state devised by it, so as to pass title to such land to the devisee.</p>

<p>Sale — CoNdition Precedent — Reserved Title.</p> <p>Where a piano was delivered under an ageeement in writing purporting to rent the same at $10.00 per month, the owner agreeing tliat when $300.00, the value of the piano, was paid in such monthly payments or otherwise, the title to the piano should rest in the renter; Held, That such writing showed a sale upon a condition precedent, and under the provisions of our statute— see. 3, e. 74, Code 1887 — the reservation of the title, unless a notice thereof is duly recorded, is void as to the creditors of the purchaser.</p>

<p>Separate Estates oe Married . Women — Commissioner’s Sales.</p> <p>W. purchased a lot of land in September, 1866 for $150.00 from D. M., who executed and delivered to her a deed therefor,, and afterwards she sent said deed to the clerk’s office by S., for the purpose of having it recorded, and said S. upon consulting an attorney, without the knowledge or consent of W., who was then a married woman but living apart from her husband, had said deed altered by inserting therein his name as grantee in the room and stead of hers and subsequently informed W., that said change was made to protect said property from her husband, should he return. She sold said property for $2,500.00; and after paying a balance owed by W., on the purchase-money, for which a vendor’s lien was retained, and an amount borrowed by her from S. to make part of the cash payment thereon, a balance of $1,950.00, was left of the proceeds of said sale, which amount was received and retained by S., who told W. that he would hold the same in trust for her and purchase for her a better home, when she could hold it. Said W. and S.- intermarried in the fall of 1869, and in 1875 and 1877, said W. purchased at commissioner’s and tax-sale two tracts of land — one containingllOaeres, and the other 31 acres —situate in Preston county, W. Va., where she resided ; and part of the purchase-money thereof was paid by S. out of money in his hands belonging to his then wife. Said purchase was reported as made by her, and the report of sale was confirmed. At the time of said commissioner’s and tax-sales and confirmation thereof no judgment-lien existed against said S.; and, so far as the pleadings show, no debts existed against him. Held, (1) that said land purchased by the wife'of S. at said commissioner’s and tax-sale could not be subjected to sale by the creditors of S. to satisfy judgments acquired and docketed after said sale and confirmation ; (2) as it does not appear from the pleadings that S. owed any debts at the time said sales were made and confirmed, there was nothing to prevent said S. from paying his said wife any portion or all that he owed her on his indebtedness to her contracted before marriage ; (3) as no lien existed which would in any manner bind money in the hands of S, he had as much right to pay his wife any portion of the debt he owed her, as aforesaid, as any other creditor; (4) after a commissioner’s sale is confirmed, it relates back to the date of the sale, and the purchaser is considered the owner from and after that date.</p>

<p>Right oe Way — Obstruction—Injunction.</p> <p>O., F., and H., being the owners of a large tract of land sell on the 1st day of March, 1856, two parcels of said land adjoining each other — one to G., the other to K. The tract sold to G. is inaccessible to a public road, except by passing over the land sold to K., who is acting as the agent of O., F. and H. in selling portions of said large tract lying back of his, and also back of the tract sold G. K., with the assistance of G. and 0., who also about that time purchased a tract of said land adjoining and back of the parcel sold to G., opened and located a road through the land of K., and a fence was built on each side thereof, under the direction of K., at the expense of O-, F. and H., which road was used openly and publicly by G. and those claiming under him and others for thirty years. In 1863, S. became the owner 'by purchase of the tract originally purchased by K., and occupied the same, allowing the said road to be publicly used and remain open and unobstructed until the 1st of September, 1887, when he fenced it up, and opened another and different road through his land, and erected three gates across it. Held,: (1) that G., or those elaimingunder him, had aright by injunction to compel S. to remove said obstruction, and restore to him or them an open way through said land of S.; (2) that if there has been an open and public useof an easement for more than twenty years, unexplained, it will be presumed to be under a claim of right, and adverse; '(3) that where a party sells two adjoining tracts of land from one of which there is access to a public highway only by passing over the other, that fact creates a right of way, of necessity ; (4) that if a party has acquired an open and unobstructed right of way over land by publicly using the same in that manner, without objection, for more than twenty years, he thus acquires a right to the unobstructed use of said way.</p>

<p>1. Indiotment — QuashiNg—Grand Jury.</p> <p>A plea in abatement to an indictment which avers that the prosecuting attorney, of his own motion, without authority of law, went into the room where the grand-jury were sitting, and, in the presence of the grand-jury, examined certain named witnesses, upon whose testimony the indictment was found, and talked in the presence of the grand-jury about the said testimony of said witnesses, and thus unlawfully conspired against the defendant to have and procure the grand-jury to find the indictment, does not present causefor abating the indictment, and was properly rejected, (p. 321.)</p> <p>2. Juror.</p> <p>A juror who had not heard the evidence in a criminal cause on a legal investigation, or from witnesses, but had read in newspapers a report of the evidence given on a former trial, and stated that from that he had formed a decided opinion as to the guilt or innocence of the accused, which it would require stronger evidence than he had read to remove, and who stated upon his ■voir dire that he had no prejudice or bias against the prisoner, and that he would regard it a duty, asa juror, under his oath, to discard that opinion, and that he thought he could discard it, and have his mind as a blank, ready to receive the testimony that should be given on the trial, and that, while he would as a citizen entertain that opinion, yet as a juror he would not, but could and would hear and consider the evidence, and render a fair and impartial verdict according to the evidence, uninfluenced by such opinion, and whose statements satisfy the court of his fairness, is a competent juror, (p. 324.)</p> <p>3. Evidence.</p> <p>A sheriff having a prisoner in his jail charged with murder requests him to deliver his pantaloons to him, not informing him of the purpose for which he desired them. The prisoner, without any protest or objection, delivers him the pantaloons, taking them off for that purpose. The pantaloons are subjected to investigation by experts, to discover the presence or absence of blood-spots on the pantaloons. The State, upon the trial, against the prisoner’s objection, by leave of the court, introduces the pantaloons, together with evidence tending to show that such investigation revealed blood-spots on the pantaloons. There is no error in allowing the pantaloons and such evidence to go before the jury. (p. 330.)</p> <p>4. Bill of Exceptions — Reversal of Judgment.</p> <p>Whereupon a writ of error to a judgment overruling amotion to set aside a verdict and award a new trial on the ground that the verdict is contrary to the evidence, the evidence, not the facts, is certified in the bill of exceptions, this Court will not reverse the judgment, unless, after rejecting all the conflicting oral evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the trial-court still appears to be wrong. State v. Flanagan, 26 W. Va. 116. (p. 336.)</p> <p>5. Evidence — Reversal of Judgment,</p> <p>A case in which, upon circumstantial evidence, a verdict of murder in the first degree is found, and this Court refuses to reverse the j udgment based upon it.</p>

<p>1. Rescission — Contract—Evidence.</p> <p>A written agreement under seal in regard to real estate may be rescinded in whole or in part by a subsequent parol agreement which has been fully executed and carried out, but to make such subsequent parol agreement effective as a rescisson of the written agreement or any part thereof, it must be established by clear and conclusive proof.</p> <p>2. Rescission — Deed.</p> <p>The acceptance of a deed for a less quantity of land than that to which the grantee is entitled by his written agreement with full knowledge of the facts, accompanied with a surrender of said written agreement, constitutes a rescission of said written agreement to the extent of the number of acres omitted from said deed.</p> <p>3. Rescission.</p> <p>A ease in which the conveyance of a part of the land described in an executory contract and a surrender of said contract is under the circumstances regarded as a full execution of the contract.</p>

<p>FRAUDULENT CONVEYANCE — BURDEN OP PROOF.</p> <p>S. E. C. being in November, 1874, the owner of one half interest in a lease of certain lots of land located in Ritchie county, West Virginia, on which some oil wells had been bored, and also of certain fixtures and personal property appertaining thereto, being at the time indebted, assigned said leasehold property and fixtures &c., to B. his wife’s brother, and in consideration therefor B. executed to him his three notes for $2,000.00 each, one of which was afterwards changed into four notes, two of which were for $666.66! each, and the remaining two' for $333.33J each, and as a farther consideration B. was to pay to G. a debt owed by O. of between three and four thousand dollars. On the 12th of February, 1875, B. assigned said interest in said leasehold property to L., a cousin of H. M. C. the wife of C., andón the same day L. assigned said property to said H. M. C., the wife of C., receiving the notes which B. had executed to C. in consideration therefor, which notes L. turned over to B. which notes said H. M. O. swears she received from her husband C. without consideration. At the expiration of said lease a new lease on said property was executed to H. M. C. by the grantor in said original lease without any consideration rnoying from said H. M. O., but for certain valuable considerations furnished by her husband. In a controversy between the creditors of the husband and the wife as to the right to subject said property to the payment of debts contracted by the husband before said assignment to B. Held :</p> <p>I. The burden of proving that said assignment to B. was for a valuable consideration and bona fl.de devolves upon tbe wife.</p> <p>II A voluntary conveyance will be declared fraudulent as to subsequent creditors, if from the circumstances and other evidence the court is convinced, that the deed was made with intent to defraud such creditors; and the conveyance being voluntary, it is immaterial whether the grantee had notice of such fraud.</p> <p>III. A case in which the facts proven are such as to lead to the conclusion that the transfer of the husband’s property to his wife’s brother, and from him to his wife’s cousin, and thence to his wife without consideration, was made with fraudulent intent and was void either as to existing or subsequent creditors.</p>

<p>1. Insurance — Limitation.</p> <p>A policy of insurance provides that proof of loss shall be.fiir-n ished to the insurance company within thirty days from the date of the loss, and that all claims underit shall be barred, unless prosecuted within six months from the same date, and also provides that the loss shall be paid in sixty days after proof of loss. The six-months limitation begins to run at the close of the sixty days allowed the company for payment, not from the actual loss,</p> <p>2. INSURANCE-DAMAGES.</p> <p>One person charters of another a barge to be employed by him in the conveyance of freight in a business trip for profit, and has the barge in his custody and possession. He has an insurable interest in the barge, and may insure it in his own name, not only for his own protection, but also for the protection of the owner of the barge ; and if his act of so insuring it was authorized by the owner, or is ratified by him, suit may be maintained upon the policy, in case of loss, and damages recovered to indemnify , the loss of the owner of the barge, not merely the loss of the , charterer. t</p> <p>3. InsuraNce — Construction op Statutes,</p> <p>Statutes are to be construed to have a prospective operation, unless a contrary intention in the legislature is manifest and plain.</p> <p>4. Insurance — Construction op Statutes — Interest.</p> <p>In an action on a contract, a verdict is rendered for the plaintiff for a sum of money while section 14, c. 131, Code 1868, as originally enacted, was in force, providing that judgment should be entered for the amount found, with interest from the date of the judgment; and judgment is not entered on such verdict until 1887, when said section 14, as amended by chapter 120, Acts'1882, is in force, providing that on verdicts judgments shall be rendered, with interest from date of verdict. Such judgment should have called for interest from its date, according to the law in force when the verdict was rendered, and not from the date of the verdict.</p>

<p>1. Murder — Autrefois Acquit — Demurrer.</p> <p>The court should sustain a demurrer to aplea of autrefois acquit, when the plea shows on its face that the offence for which the prisoner was formerly tried is separate and distinct from that for which he stands indicted.</p> <p>2. Murder — Special Plea.</p> <p>A special plea, which is equivalent to the general issue of “not guilty," may be rejected by the court in a criminal case without error.</p> <p>3. Murder — Instructions.</p> <p>A party has a right to have his instruction given in his own language, provided there are facts in evidence to support it, that it contains a correct statement of the law and is not vague, irrelevant, obscure, ambiguous, or calculated to mislead.</p> <p>4. Murder — Self-Defence.</p> <p>The principles laid down in Gain’s Case, 20 W. Va. 679, reaffirmed, as defining on the one hand the circumstances which will excuse the defendant from retreating, and on the other, repudiating the erroneous doctrine, so fruitful of murders and street-fights wherever promulgated, that a mere threat to kill on sight will justify a party, in a civilized community, in slaying the threatener, unless the latter is, at that very time, engaged in some overt, hostile act indicativeof immediate and imminent danger to the defendant,</p> <p>5 Murder — Witness—Evidence.</p> <p>Since'the passage of our statute permitting the prisoner to testify in his own behalf, he is a competent witness in a case of homicide to testify to the state of his own feelings when the fatal act was committed, his testimony to be taken for what the jury may think it worth.</p> <p>6. Murder — Evidence—Hearsay Testimony.</p> <p>To extend the limits of the admissibility of hearsay testimony so as to include so vague and general a subject as the reputed “influence” of one man over another would be unwarranted by authority or precedent; and the court did not err in excluding such a question.</p> <p>7. Murder — Evidence—Threats.</p> <p>Evidence of communicated threats is calculated to shed light upon the mental attitude of the prisoner towards the deceased when the homicide occurred; uncommunicated threats are evidence of the mental attitude of the deceased towards the prisoner. Both are admissible.</p> <p>8. Murder — Self-Defence.</p> <p>The principle laid down in State v. Abbott, 8 W. Va. 743, 744, reaffirmed.</p>

<p>Bill of Review.</p> <p>To maintain a bill of review, the party filing the same must show by the allegations thereof that he is interested in the matter disposed of by the decree sought to be reviewed, what those interests are, and that he will be benefitted by a reversal or modification of said decree.</p>

<p>1. Raipboad COMPANIES — Lease—Liability.</p> <p>, A railroad company chartered by a state can not, without distinct legislative authority, by lease, or any other contract or arrangement, turn over to another company its road and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the road.</p> <p>2. RailRoad — Companies—Liability—Damages ,</p> <p>Where a railroad company chartered by this state, permits a foreign railroad company to operate a part of its road in this state under a verbal arrangement, and the two railroads form a continuous line through and beyond the limits of this state, the domestic company will be liable for injuries sustained on that portion of its road so operated by the foreign company.</p> <p>3. Railroad Companies — Evidence.</p> <p>Upon the trial of an action for damages it is error for the court to permit the counsel for the plaintiff, in argument, over the objection of the defendant, to read to the jury, upon the question of the measure of damages, extracts from reported cases, showing large damages held not excessive.</p> <p>4. Railroad Companies — Dam ages--Exemplary Damages.</p> <p>A railroad company can not be made responsible for exemplary damages on account of injuries done by one of its servants, even though the act was wanton and malicious, unless the act was expressly or impliedly authorized or ratified by the company.</p>

<p>SUNDAY — INDICTMENT.</p> <p>Under sections 16, 17, e. 149, Code 1887, no indictment can be sustained against a railroad company for running trains on Sunday.' .There is no law to sustain such indictment.</p>

<p>MaeshaIjLING Assets — Liens ON Different Funds — Priorities. It is a principle of equity that when one creditor has a lien on two funds for the same debt, and another has a subsequent lien on one of the funds only,'equity will require the former to resort in the first instance to the fund upon which the subsequent creditor has no lien; and this, even though in its consequences harm result to another creditor having a lien on the property later in date.</p>

<p>1. Fraudulent Conveyances — Evidence —Declarations oe Grantor.</p> <p>It is well settled that the declarations of a grantor, made subsequent to the conveyance, are not admissible to affect the title of his grantee ; certainly if made a year subsequent.</p> <p>2. Fraudulent Conveyance — Evidence.</p> <p>When a deed is assailed by third parties on the ground of fraud, it is admissible to show, in addition to the consideration expressed in the deed, that a substantial and valuable consideration was paid, or the converse.</p> <p>3. Fraudulent Conveyance— Notice</p> <p>A worthless husband, indebted to insolvency, in pursuance of an agreement that his wife would abandon her purpose to sue for a divorce, and that she and her sons would pay certain specified debts of the husband, which he asserted and they believed were all he owed, amounting to over 5800.00 conveyed to a third person, who on the same.day conveyed to the wife, real estate worth from 8600.00 to SSOO.OO. The wife and sons at the time assumed to pay, and afterwards, in good faith and without notice of any fraud, did pay off said debts. Held: The said conveyance is valid as against the creditors of the husband whose debts existed prior to and at the time of the conveyance, but of which the wife had no notice.</p>

<p>Limitations of Actions-Justice of the Peace-Judgments.</p> <p>Action on ajudgment rendered by a justice, Sections 10, 11, c. 139, Code, areapplieable to judgments rendered by ajustice, so far as to provide that upon such ajudgment, on which no execution within two years from the date of its rendition has issued, an action may be brought at any time within ten years after the date of the judgment; but, if such action be against a personal representative of a decedent, it shall be brought within five years from the qualification of such representative. Handy v. Smith, 30 W. Va. 195, (3 S. E. Pep 604).</p>

<p>1. JuRies — Summoning erom By-Standers.</p> <p>Section 14.of chapter 116 of the Code authorizes the Circuit Court, in the proper exercise of a legal discretion, to summon a panel of the-requisite number of jurors from by-standers.</p> <p>2. New Trials.</p> <p>It is error for the Circuit Court to refuse to set aside a verdict and grant a new trial, ’in a felony case, when the State fails to prove at the trial that the alleged offence was committed within the jurisdiction of the court.</p>

<p>Sale or Intoxicating Liquors — License.</p> <p>The provision in the act of February 13, 1871, amending the charter of the town of New Martinsville, in Wetzel county, that no license to sell spirituous liquors within one mile of said town shall be granted by the board of supervisors of said county with-, out the consent of said town, will not prevent the granting of license to sell spirituous liquors at a place within the town of Brooklyn, with the consent of said town of Brooklyn, and against the objection of said town of New Martinsville, though the place at which such liquors are to be'sold be within one mile of the corporate limits of the town of New Martinsville.</p>

<p>1. Res Adjudicata — Common-Daw Practice.</p> <p>Where an action for damages for breach of the conditions of a written contract is brought before ajustiee, and upon a general denial of the complaint by the defendant thejustice hears the case upon the evidence and arguments of counsel, and enters a judgment dismissing the plaintiff’s suit for failure to prove the execution of the contract surd on, with costs, he can not, by adding the wn-ds “without prejudice to a new suit,” authorize a new suit for the same cause of action.</p> <p>2. Res Adjudioata.</p> <p>If a new sui> is brought by the plaintiffs against the same defendant for the same cause of action, and the plea of res judicata is interposed by the defendant, it will bar the action.</p> <p>3. Res Adjudicata — Nonsuit.</p> <p>The dismissal of the action under the circumstances of this case, after it was heard and submitted, “without prejudice to a new suit,” was equivalent to directing a nonsuit by the justice, which he had no authority to do after the case had been heard and decided.</p>

<p>1. Set-Opp — Unliquidated Damages.</p> <p>Unlinquidated damages can not be the subject of a set-off.</p> <p>2. Recoupment of Damages.</p> <p>Recoupment of damages by a defendant can not be allowed uniess the right thereto grow out of the same transaction as that on which the plaintiff’s case is based.</p>

<p>Assumpsit — Claims—Cities, Towns and Villages.</p> <p>Assum.psit will lie against a town for the recovery of money due the plaintiff for work done under contract for the town, notwithstanding void certificates have been issued and accepted for sueh work. Snyder, P., dissenting.</p>

<p>1. Wills — Legacies—Interest.</p> <p>Where a legacy is given to a trustee for the support of the family of one of the testator’s children, and made payable out of the proceeds of the sale of real estate, such legacy is to bear interest from the death of the testator.</p> <p>2. Wills — Executoes—Taxes—Residuary Legatee.</p> <p>Where a will gives to the executors a naked power to sell real estate, neither the title nor the right to the possession passes to the executors, and they are not chargeable for the failure to rent the same until the sale can be made ; and if the heirs permit such real estate to be returned delinquent for the non-payment of taxes, and the executors pay said taxes to prevent the loss of the land, -they will be entitled, as against the residuary legatees a portion of the proceeds of said real estate, to credit for the taxes so paid.</p> <p>3. Wills — Executors—Statute of Limitations.</p> <p>Where a testator directs his executors to sell a certain farm, and out of the proceeds to pay, first, the debts of one of his sons on which another of his sons is surety, the executors can not pay any such debt which before payment becomes barred by the statute of limitations, when the statute is relied on by the debtors.</p>

<p>1. Bill in Chancery — Trusts and Trustees — Principal and Surety — DemuRRER.</p> <p>A bill in equity which seeks no discovery, but merely alleges that a party who has acted as trustee for plaintifihas executed his trust, and the only complaint is that said trustee has with plaintiff’s consent delivered money which he has collected to a third party to indemnify him as plaintifí’s surety, which third party retains the money after he has been relieved from 1ns liability as surety, and refuses to account for or pay over the same, does not present such a ease as will entitle the plaintiff to be heard in a court of equity, and such bill will be dismissed upon demurrer.</p> <p>2. Bill in Chancery — Demurrer.</p> <p>Where a bill in equity seeks nothing further than the enforcement of a legal demand, a demurrer to the bill will be sustained.</p>

<p>1. Landlord and Tenant-Contract — Fences—Big-ht of Action.</p> <p>Where a land-owner makes a contract with a railroad company to fence its right of way through his lands, and subsequently said land owner leases said land for a year to a tenant, for farming purposes, and at the date of said lease the fence erected along said right of way by said railroad is in bad condition, and down in several places, the said tenant can not maintain an action for damages on said contract.</p> <p>2. Landlord and Tenant — Fences.</p> <p>As between such tenant and his landlord, in the absence of any special covenant requiring the landlord to maintain the fences, it is incumbent on the tenant to keep said fences in repair.</p>

<p>1. Partition-Consideration.</p> <p>A person who once had an interest as joint-tenant with others in land, and whose interest has passed from him, can not effectually unite with his former co-tenants in a deed of partition; and such deed, for want of mutuality and consideration, will not bar the representative of such co-tenant from afterwards having a partition under the law.</p> <p>2. Partition — Evidence—Possession.</p> <p>A voluntary partition, not evidenced by writing, in order to defeat a right to such partition under the law, must be clearly proven and must be followed by actual possession in severalty of the several parcels, pursuant to such voluntary partition.</p> <p>3. Witness — Evidence—Transactions With Decedents.</p> <p>A party to a suit, although he have no interest in its result, is incompetent to give evidence of a personal transaction or communication between him and a person who, at the time of the examination of such party, is dead, against a devisee of such deceased person.</p>

<p>1. VENDOR AND VENDEE — CONDITION PRECEDENT.</p> <p>In a suit upon a bond, executed as part of the purchase-money for a tract of land, brought by the vendor, which contains the following condition : “This payment is to be made on condition that the title be made good for the interest the heirs of W. L. hold in said iand,” — a compliance with the condition must precede the collection of the amount of the bond from the vendee.</p> <p>2. Vendor and Vendee — Set-Off—Substitution.</p> <p>Where a tract of land is conveyed to a vendee with covenants of general warranty, and said vendee executes his bonds to the vendor for the purchase-money, and said purchaser is compelled to pay off trust-liens which had been executed by the vendor thereon in order to obtain a clear title therefor, said vendee is entitled to substitution to the rights of the parties who held said liens, and in a suit by the vendor to recover said purchase-money may set off the amounts so paid against the claim of his vendor for purchase-money,</p> <p>8. Vendor and Vendee — Married Women.</p> <p>A suit is brought upon a bond executed to a married woman as ■ part of the purchase-money fora tract of land, which bond she claims was given to her to induce her to execute a deed for said land sold by her husband and herself in which she claims to have contingent right of dower, and that she is the owner of one eighth of one fifth of said tract, and holds an unrecorded deed for the same, and said married woman joins with her husband in a conveyance of said land, with covenants of general warranty to the obligor in said bond for said tract of land. Under the circumstances, she will be treated as a common vendor, and can not recover on said bond until the incumbrances on the title are removed.</p>

<p>1. Public Roads — Construction of Statutes.</p> <p>The provision of our Code, that when any road is altered, the former road shall be discontinued to the extent of such alteration, and no further, and the new oue established, gives to the order of the County Court establishing an alteration of an existing road the effect of discontinuing, as a public highway, so much of the original road as may be excluded from the new route, without any further or separate order to that effect.</p> <p>2. Public Roads.</p> <p>In order to re-establish this lawfully discontinued portion of the old or original road, the alteration must be set aside, or there must be a new statutory establishment or a new dedication by the owner, and recognition or acceptance by the County Court, in the manner provided by law.</p> <p>3. Public Roads — Waiver.</p> <p>Although notice is required to be posted as directed in section 30, chapter 43 of the Code, before a road, or any portion thereof, can be lawfully discontinued, yet after the final order discontinuing has been acquiesced in for a period of eighteen years, the omisa i of such notice will be regarded as waived.</p> <p>4. Public Roads — Streets and Alleys — Presumption oe Law.</p> <p>Under section 31 of chapter 43 of the Amended Code, which is the same as section 31 of chapter 14 of the Acts of 1881, when the owner permits the use of his land as a public road, street or alley for a long time, such user will -not now be presumed to be a mere license, but a dedication; and the acceptance of the county or city or incorporated town need not be proved by matter of record, but may be presumed from acts of recognition, acceptance and claim.</p> <p>5. Public Roads — Streets and Alleys— Injunction.</p> <p>Injunction is a proper remedy to restrain a town from opening a street through a person’s land without first condemning it according to law, where there has been no dedication of such street to public use.</p>

<p>1. Divorce — Desertion—SeparatioN.</p> <p>Desertion, in divorce law, is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other.</p> <p>2. Divorce — Desertion—Separation.</p> <p>The wrongful conduct or justifiable cause, which will warrant á wilful separation, or a continuance of it, must be such as could be made the foundation of a judicial proceeding for a divorce a mema et thoro.</p> <p>3. Divorce — Desertion.</p> <p>Where a wife, without any apparent cause other than her dislike of him, voluntary leaves the home of her husband and refuses to return or cohabit with him for a period of more than three years, after she has been in good faith requested by the husband to do so, the husband will under our statute be entitled to a divorce from the bond of matrimony.</p>

<p>1. Deed — HusbaNd and Wife — Warranty.</p> <p>Where a husband unites with his wife in a deed conveying with eovenantof general warranty, land of the wife in which the husband has a freehold estate, the warranty in the deed will not bind the wife, but it will be obligatory on the husband alone.</p> <p>2. Deed — Warranty—Deficiency in Quantity op Land.</p> <p>When a vendorsells a tract of land at a specified price without specifying in the written contract of sale the quantity of land sold and binds himself to make a good deed to the purchaser therefor ; and he afterwards conveys the land by deed with general warranty describing the tract giving metes and bounds aud as containing a fixed number of acres, more or less; and it is shown by parol proof that at the time of the sale the vendor represented'the tract as containing the number of acres mentioned in the deed and that on Ibe faith of this representation the vendee made the purchase, and it subsequently is discovered that the quantity conveyed is materially less than that specified in the deed, the vendee will, in the absence of proof that the sale was one of hazard, be entitled in a court of equity to compensation for the deficiency in the land.</p>

<p>1. Evidence — Irrelevant Questions.</p> <p>Questions which have no bearing on the issue, or a very remote one, and which are calculated to prejudice the minds of the jury ought to be excluded.</p> <p>2. Evidence — Irrelevant Questions.</p> <p>Questions which, standing isolated, are irrelevant ought to be excluded ; but if counsel, on their responsibility "as such, should state that they expect to follow them up by testimony of the same witness, or others, which will connect them with the ease, and show them to be relevant, the court in its discretion, may allow them to be asked, subject to being ruled out, if not so connected ; where there is no promise, or-intimation by counsel that such further and connecting testimony will be adduced, there is no error iu excluding such iureveLant questions.</p> <p>3. Evidence — Supbeme Ooubt of Appeals.</p> <p>Where the evidence, not the facts proved, is certified to this Court, the rule, very often announced, is that the judgment will not be reversed, unless by rejecting all the parol evidence of the exceptor, which conflicts with that of his opponent and giving full force and credit to that of the adverse party, the decision of the Court below still appears to be wroug.</p> <p>4. Insubance-Company — Waives.</p> <p>If an insurance company refuse to pay the loss, or deny its liability, upon independent grounds, before any sufficient proof of loss is made, and before the time within which such proofs are to be made, by the terms of the policy, such denial and refusal constitute a waiver of the condition of a policy requiring such proofs.</p> <p>5. Insubance-Company — Clebical Ebbob.</p> <p>If the agent of an insurance company deputize his oierk to examine certain property, and report upon it, and to write out a policy thereon, and the clerk, while intending to write the name of the true owner in the policy writes that of her husband, by clerical error and mistake, occasioned by the accidental circumstance that the husband’s name happens to be before him, such mistake will not defeat the true owner’s right to recover.</p> <p>6. Insurance-Company — Declaration—Proof.</p> <p>It is not necessary, in order to support a verdict for the plaintiff, that he should prove all the matters set put in the “statement” filed in connection with the declaration, under section 62, chapter 125 of the Codej but only so much thereof as is necessary to sustain the essential averments of the declaration.</p> <p>7. Insubance-Company — Agent—Clerk.</p> <p>No insurance-agent can be expected by his company to attend to all the details of his business in person ; the company must and should be construed to anticipate the employmentof clerks to attend to the office, when the agent is absent or sick ; when the agent’s clerk is authorized and entrusted to examine property, and write out a policy thereon, his contract and knowledge are the contract and knowledge of the agent, and any accidental mistake which he may make, is the mistake of the agent, and will be corrected in a court of law in an action on the policy.</p> <p>8. Insubance-Company — False Swearing.</p> <p>No false swearing by the plaintiff, no matter what his intent, perpetrated after the writ was issued, can change the rights of the parties, or affect the verdict, although the policy contain a clause of forfeiture, in ease the assured make any false affidavit with intent to defraud the company.</p>

<p>1. Contributory Negligence — Streets and Alleys — Municipal Corporations,</p> <p>In an action against a municipal corooration for iniuries caused by an obstruction of a street or sidewalk, when the evidence of the plaintiff proves such facts and circumstances as show that the plaintiff was guilty of contributory negligence in causing the injuries, the court should on the motion of the defendant exclude all the plaintiff’s evidence from the jury.</p> <p>2. Contributory Negligence — Streets and Alleys — Municipal Corporations — Sidewalks.</p> <p>When the evidence of the plaintiff proves, that the plaintiff while passing along the street oí a town on a dark night, without a lantern or other light, fell over a rock in the middle of the street and injured herself, when she knew that both the street and sidewalk were out of repair, dangerous and obstructed by dirt, rocks and building material, she will be held to be guilty of contributory negligence, notwithstanding the town-authorities neglected to indicate said obstructions by beacons or danger signals as it was their duty to do.</p>

<p>1. Res Judicata — ErroNeous Ruling.</p> <p>An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.</p> <p>2. Res Judicata — Servioe oe Process-Appearance.</p> <p>The above rule applies not only to judgments and decrees of the courts of the same State, but to the judgments and decrees of the courts of any State of thó Union whenever questioned in any sister State, provided there was personal service or an appearance of the parties to the first suit.</p> <p>3. Res Judicata — Insolvency—Injunction—Set-Ope.</p> <p>The mere insolvency of a judgment-creditor will not, of itself, justify an injunction against the enforcement of a judgment at law in order to let in a set-off which might have been pleaded at law at the time such judgment was recovered.</p>

<p>Issue Out of Chancery — Specific Performance.</p> <p>A cause in which it is held: First, upon the facts and circumstances appearing in the record, that the Circuit Court improperly directed an issue out of chancery; and Second, upon the pleadings and proofs, that the plaintiff is entitled to a specific execution of the contract alleged iii its bill.</p>

<p>1. ABATEMENT — ANSWER—PLEADING-.</p> <p>When the defendant in an- equity suit files a plea in abatement in proper form, and at the proper time, and at the same time files his answer formally pleading the same matters therein, and said answer is duly sworn to, the said matter in abatement will be treated as properly put in issue, although the said plea is not sworn to.</p> <p>2. Foreign Corporation — Contract.</p> <p>A contract made by a foreign corporation before it has complied with the statutory prerequisites to the right to do business in another State will not, on that account, be held absolutely void, unless the statute expressly so declares ; and if the statute imposes a penalty upon the corporation for failing to comply with such prerequisites, such penalty will be deemed exclusive of any others.</p> <p>3. Foreign Corporations — Contract.</p> <p>Our statute — sec. 30, ch. 54 Code — which prescribes, that foreign corporations shall comply with certain regulations as a prerequisite to their right to hold property or do business in this State, and fixes a penalty for their failure to do so, does not make the contracts made in this State by such corporations before compliance with said regulations absolutely void and unenforceable in the courts of this State.</p> <p>4. INJUNCTION.</p> <p>A cause in which it is held, that the court did not err in overruling a preliminary motion to dissolve an injunction made be fore the final hearing of the cause on its merits.</p>

<p>1. Peksonal Representatives — Limitation of Actions.</p> <p>When such an officer of a town as the treasurer of a special public fund dies, and thus dissolves the relation between himself and the town, and his personal representative terminates the trust by delivering up all the securities, books and papers belonging to the office, to his successor in the office, together with full information and evidence of the decedent’s exact indebtedness to the treasury, so that an action at law could be maintained on this indebtedness against his personal representative, then, such representative is entitled to plead the bar of the statute of limitations, beginning to run, at least, from the date of his qualification, and discharge or termination of the trust, in the manner above mentioned.</p> <p>2. PERSONAL Representatives — Limitations op Actions.</p> <p>If after he has been removed, on his own motion, such personal representative as a volunteer pays a balance of the debt due by said defaulting treasurer at a time when the bar of the statute would have applied in an action at law on thé deceased treasurer’s official bond, he can not recover the sum so paid from the estate of the decedent, either by action at law or suit in equity.</p> <p>3. Personal Representatives — Limitations of Actions.</p> <p>In this State the administrator, by his verbal promise, can no more prolong the vitality of a debt of his decedent, not yet barred, beyond the limit of the statutory bar, than he can revive a debt already barred; neither has he any option about protecting the estate by interposing the statute of limitations, when applicable.</p> <p>4. Personal Representatives — Limitations op Actions.</p> <p>The personal representative having paid 5850.00 a portion of the debt duo by the defaulting treasurer, before the bar of the statute would apply to an action on the decedent’s official bond as treasurer, it is held that he was not bound to wait to be sued on said bond butmightand should pay the debt, if admitted to be justly due, and credit himself with the payment in his settlement.</p> <p>5. Personal Representatives — Bar.</p> <p>The fact, that upon an ex parte settlement of his accounts before' a commissioner, under chapter 87 of the (lode, the County Court has erroneously disallowed a credit for the said $850.00, and that, on appeal, the Circuit Court has confirmed this action of the County Court, does not constitute a bar to an original bill in chancery on the part of the said personal representative to correct or falsify the said error of the County Court.</p> <p>6. Personal Representatives — Parties.</p> <p>In the present ease, all the facts essential to the granting of the proper relief to complainant having been set out fully in the bill, such relief might and should be administered under the prayer for general relief, if the proper parties were before the court; but such not being the case, the demurrer to the bill should be sustained, and the plaintiff permitted to amend, and, if he so elect, to ask for a settlement of his whole administration account, specifying particularly the error in former ex parte order of the County Court in disallowing credit for the payment of the $850.00 above mentioned, and taking care to bring all parties interested in the settlement of his administration account before the court, p. p. 28, 29.</p>

<p>1. MANDAMUS— MotioN to Quash.</p> <p>In mandamus a motion to quash the alternative writ is not only the equivalent of a demurrer to such writ, but more ; it puts in issue the sufficiency of the petition on which such writ has been issued.</p> <p>2. MANDAM US--Discretion.</p> <p>Mandamus will not lie to control the exercise of the discretion of any court, board or officer, when the act' complained of is either judicial or' quasi — judicial in its nature.</p> <p>3. HAND AM US.</p> <p>The inferior tribunal may be compelled io act in such case, if it unreasonably neglects or refuses to do so, but if it does act, the propriety of its action, however erroneous and improper, can not be questioned or controlled by mandamus.</p> <p>4. MANDAMUS — Weit of Error — Appeal.</p> <p>Mandamus can not be permitted to usurp thé place of a writ of error or appeal; nor will it lie when there is any other adequate and complete legal remedy.</p> <p>5. MAND AM US— County Court-Bridges. -</p> <p>Mandamus, will not lie to compel the County Court, under the provisions of sec. 23 chap. 39 Code, to rebuild a county bridge which had been destroyed, when it appears that said Court has, under the provisions of chap. 43 Code, decided to build a bridge across the same river U0 yards from the site of the former bridge and thereby in eSect deciding to change the location of the former bridge.</p> <p>6. MA NDA MU8 — County Court — Bridges.</p> <p>In such case this Court will not by mandamus inquire into the regularity of the proceedings of the County Court establishing such bridge and altering the location of the former bridge.</p> <p>7. MANDA MOS' — County Court — Bridges.</p> <p>Under the provisions of chap. 43 Code, the County Court may discontinue a bridge in the same manner that it may discontinue a public road.</p>

<p>1. AdmiNistbation — Decree oe Sale.</p> <p>In general the personal assets of a decedent, so far as they have not been administered, should be administered under the direction of the court, and applied to the payment of the debts of the decedent in relief of the realty descended to the heir, or devised to the devisee, in a suit or proceeding to subject the realty to the payment of decedent’s debts ; hence the court should not decree the sale of the realty of a decedent to pay a judgment-lien before the accounts of the administrator have been settled, and the un-administered assets, if any, ascertained.</p> <p>2 Administration — Decree op Sale — Dower.</p> <p>When the widow is a defendant in the suit, and has not elected to take the value of her dower in money, her dower should be assigned, before an out and out sale of the realty is decreed.</p> <p>3. Administration — Decree op Sale — Parties.</p> <p>Where the bill alleges that there are devisees, and proceeds against them as “unknown devisees,” under section 11 chapter 124 of the Code, although the domicile of the deceased was well known, and the names of the devisees easily ascertainable from the will, the court should require such devisees to be made ' parties by name before selling the realty in which they have an interest.</p> <p>4. ADMINISTRATION — DECREE OR SALE — PARTNERS AND PARTNERSHIP.</p> <p>As the devisees or heirs are entitled to have the distributive share of the deceased partner in the assets of the firm applied to the relief of the land ; andas the responsibility of the surviving partner to these representatives of the deceased exists only after the partnership affairs are settled, and the right of participation is only in the balance after payment of all social debts ; therefore, there should be an account and an audit of the debts and credits of the firm, and a settlement of the partnership accounts inter sese, before a decree to sell the land of the deceased partner.</p> <p>5. Administration — Answer—Cross-Bill.</p> <p>If the defendant file an answer which seeks no discovery, and makes no defence not equally available by way of answer under the former practice, such an answer can not be regarded as a cross-bill filed under section 35, chapter 125 of the Code, and no special replication should be required or permitted to such answer.</p>

<p>1. Contempt op Court — Evidence.</p> <p>It is well settled that a contempt of courtis a criminal offence, and the imposition of a fine for contempt is a judgment in a criminal case ; therefore, the same principles of evidence apply as in other criminal trials, and the guilt of the respondent must be proved beyond a reasonable doubt.</p> <p>2. Contempt of Court — Res Judicata.</p> <p>Upon the petition of JohnD. Alderson, the present relator, a rule was ordered by this Court against the county commissioners of Kanawha County, to show cause why a mandamus should not be awarded, to compel them ■ to sign a bill of exceptions ; they appeared and answered, and the answer not being deemed sufficient cause, a peremptory mandamus issued directing them to settle and sign said bill of exceptions in the manner therein prescribed ; the relator subsequently filed his petition charging that the respondent, who was a member, and president of said commissioners, had violated the order, and refused obedience to the mandamus, and praying for a rule, which has been issued against the said respondent, to show cause why he should not be fined for contempt; held: The peremptory writ having issued, its legality, and the authority to issue it can not now be questioned by the respondent; for the matter as to him is res judicata,</p> <p>3. Contempt of Court — Bill of Exceptions.</p> <p>The respondent, in reply to the rule for contempt replies, that he did not sign the bill as presented because it did not truly state the facts ; nor did he sign the bill which the other commissioners settled and signed as the act of the board, for a similar reason ; but that he did settle and sign the bill which accompanies his answer, and which he says does truly state the facts as they were proved, or occurred ; held: this return is conclusive, and can not be traversed by the state or the relator in this proceeding.</p> <p>4. CoNtempt op Court — Bill op Exceptions.</p> <p>There is no rule of practice which prohibits the court, or a judge, from taking exceptions, instructions, and other pleadings to his office or library for the purpose of examining them, consulting authorities , and passing upon them ; before doing so, it is proper to hear counsel upon them; and as to bills of exceptions they may be settled and signed at any time during the term.</p> <p>5. Contempt op Court — Bill op Exceptions.</p> <p>The writ directed the commissioners to settle and sign the bill “ 'promptly and with all convenient dispatch," it was issued November 23rd, and served November 26th ; respondent called the commissioners together the 29th, and they adjourned from time to time until December 23rd, when respondent completed and signed the bill accompanying his answer, and on the 27th the court or board signed the bill on which the relator obtained a writ of certiorari: in the mean time the respondent had held the regular term of county court and had been afflicted with personal indisposition, and illness in his family: held — that considerable discretion should be allowed to inferior tribunals . in the discharge of judicial functions, and that looking to the only object of a bill of exceptions which this Court can consider, viz: to perfect the record for an appeal, there was no such delay here as ought to subject the respondent to fine or imprisonment.</p>

<p>1. Rescission of Contract — Misrepresentation.</p> <p>One of the fundamental principles in regard to fraudulent misrepresentation is, that the false statement must be believed by the party to whom addressed, otherwise however false, or however fraudulent the intent, the false statement does not constitute any ground for rescission of a contract.</p> <p>2. Rescission of Contract.</p> <p>Where parties deal at arm’s length, and there is no confidential or fiduciary relation between them, mere silence on the part of the purchaser of realty, or failure to disclose knowledge on his part of a peculiar value affecting the property, or the title thereto, would not be sufficient to set aside a sale fairly made, and which is otherwise unimpeachable.</p> <p>3. Rescission of Contract — Evidence.</p> <p>The well established doctrine is that, where there is no actual fraud, and no confidential or fiduciary relations between the parties, mere inadequacy of consideration is not sufficient to rescind a sale, unless it be so great as to shock the moral sense of mankind.</p> <p>4. Rescission of Conte,act — Inadequacy of Price.</p> <p>The inadequacy above referred to, must be established as of the date of the contract, and if there were not, at that date, such inadequacy as has been described, none can be considered which may arise from subsequent enhancement, depreciation, or , change of circumstances,</p> <p>5. Rescission of Contract-Contracts of Hazard.</p> <p>In reference to contracts of hazard, the factor of risk and hazard is such a disturbing element in the estimation of value, that courts of equity, when inadequacy alone is in question, will refuse to interfere.</p> <p>6. Rescission of Contract — Mistakes.</p> <p>There is no doubt that courts of equity will correct mistakes of the scrivener in drawing a deed, where he has not drawn it in accordance with the clearly established directions and instructions of the parties; but before a court of chancery will consent to correct a mistake in the terms of a deed, participated in by only one of the parties thereto, where no fraud or deception is practiced, and where a party of ordinary intelligence, who can read, has deliberately executed said deed, the proof of mistake, where admitted at all, must be strong, clear, preponderating and convincing to the mind of the court.</p>

<p>1. VENDOR AND VENDEE — 'WARRANTY—1TlTDE.</p> <p>Though a sale of land he made with covenant of general warranty, yet the purchaser can not claim against the vendor for costs expended by the purchaser in defence of a suit by an adverse claimant of the land, which suit resulted in favor of the purchaser and the title which he acquired by his purchase.</p> <p>2. Vendor and Vendee —Purchase-Money —Title—Abatement.</p> <p>Where there is a sale of land under an executory agreement providing for a conveyance with general warranty, and a portion of the land is, at the time of the sale, in the actual possession of an adverse claimant, and the purchaser buys the land held by such adverse claimant, and the vendor seeks to collect the purchase-money from the purchaser, and the purchaser asks an abatement for the land held by such adverse claimant, and it does not appear whether the title of such adverse claimant is paramount or not, it is error to decree the purchase-money against the pur-purchaser and the land, without allowing any abatement. As doubt is cast upon the title by such possession of the adverse claimant, before decreeing there should he an enquiry by a commissioner to ascertain the character of the titleof sucli adverse claimant.</p> <p>3. Parties — Liens and Lienors.</p> <p>On a suit to enforce liens for the benefit of all lienholders against the land of a debtor, if it appears necessary to a safe and proper decision between the debtor and any lienholder that such lienholdér should be a formal party, the court may and should require him to be made a party, though his debt has been reported as a lien by a commissoner’s report made under an order to convene lienholders and report their liens, after publication of notice to them.</p>

<p>i. ReCeivjbrs — Notice.</p> <p>A court of equity should exercise extreme caution in the pointment of receivers on ex parte applications, and be careful that aproper case is presented before adopting this extraordinary procedure, and it should not be done without notice to the party whose property is to be affected, except in cases of the greatest emergency demanding the immediate interference of the Court.</p> <p>2. Receivers — N otice .</p> <p>A ease which did not authorize the appointment of a receiver, and in which notice of the application should have been given to the defendants.</p>

<p>1. Wills — CoNstruotioN.</p> <p>O. B., on the 30th day of November, 1868, conveyed to his daughter S., the wife of H. B., 1,000 acres of land, situate in Monroe county, W. Va., and she, on the 15th day of January, 1869, devised said land to her said husband. In February, 1871, said S., became the mother of a . female child named S. B. B., which proved to be imbecile, and shortly afterwards said mother died. H. B., on the 12th day of August, 1885, sold and conveyed said land, with covenants of special warranty, to O. B., in consideration of $100,000.00 and also in consideration of the support for life of said infant, which deed was accepted and placed on record, and possession was taken of said land thereunder. On the 26th day of December, 1885, O. B. made his will, reciting therein his obligation for the support of said infant, and provided a mode of discharging it by setting apart the revenues of said land for the purpose, directing it to be managed by his executors, and giving the residue of said revenue, if any, to his daughter N. V. A., and allowing her a residence in the house on said land during her life, O. B. died on the 21st of April, 1888, and H. R. died in October, 1888. In December, 1888, the executors of said will brought this suit for the construction of said will, and for directions from the court to enable them to properly execute the same. Held, that the facts of this case were not such as to make it a case for election. 2. By directing the revenues arising from the Walnut grove farm to be applied first to the support of said infant, and the residue, if any, to be paid over to his daughter N. V. A., the testator did not thereby give the personal estate on said farm to either of said beneficiaries, although he directed his executors to manage said farm, and so apply said revenue. 3. By the conveyance made by H. R., to said O. B. he took a life-estate in said Walnut grove farm, which continued until the death of said H. R., and also an executory interest in fee contingent upon the death of Susie B. Robinson, dying unmarried, and without issue. 4. At the time of the death of said O. B., when his will took effect, he had a right to dispose of the rents and profits of Walnut grove farm, and to confer on his daughter N. V. A. the privilege of residing in the house situated thereon, and this right continued until the death of H. R.</p> <p>2. Wills — HusbaNd and Wife — Curtesy.</p> <p>A husband, although failing to renounce the provision of a will made in his favor by his wife, who had no children at the date of the will, will not be deprived of his curtesy by an after-born child that survived his wife.</p>

<p>1. AdmiNtstrator — Settlement oe Accounts.</p> <p>In a suit in equity brought to enforce the settlement of the accounts of an administrator, such administrator, in order to obtain credit for amounts paid out by him, must not only show that such amounts were paid by him, but that they were paid on debts for which the estate of his intestate was liable.</p> <p>2. Administrator — Settlement of Accounts — Witness.</p> <p>A party, to whom the administrator pays a debt which is claimed to exist against the estate of his intestate, and from whom he receives a voucher and derives title as administrator to such claim, is not a competent witness to prove such claim a valid debt against said estate under section 23, chapter 130, of the Code</p>

<p>1. Amendment — Pleading -Cross-Bill — Answer — New Matter.</p> <p>Where an amended answer is filed by a defendant in the nature of a cross-bill, praying affirmative relief, such amended answer should be confined to the matters contained in the original bill and answer, and should not introduce new and#different matters not embraced therein.</p> <p>2. Co-Defendants — Pleading.</p> <p>There can be no decree between co-defendants, unless the equities between the defendants arise out of the pleadings and proofs between the plaintiff and defendants.</p> <p>3. Co-Defendants.</p> <p>There can be no decree between co-defendants where there is no decree in favor of the plaintiff.</p> <p>4. Amendment — Answer—Cross-Bill—New Matter.</p> <p>A case in which the amended answer filed in the nature of a cross-bill alleges new matter, which constitutes a clear departure from the issues and purposes of the original suit, and should have been rejected.</p>

<p>1. Divorce — Cross-Bill—Desertion.</p> <p>Where a wife files a bill for divorce and alimony against her husband, if, at the time of the institution of the suit three years had not elapsed since she left her said husband, and during the pendency of said suit said period does elapse, counting from the date of such desertion, the defendant may file a cross-bill alleging that such desertion was wilful, and had continued for three years ; and, if the allegations of said cross-bill be sustained by the proof, he may be decreed a divorce from the plaintiff.</p> <p>2. Divorce — Desertion—Alimony.</p> <p>Where a wife leaves her husband without good legal cause, she is not entitled to alimony.</p> <p>3. Divorce — Desertion.</p> <p>The reasonable or justifiable cause, which will warrant a wilful separation and refusal to return to the home of her husband, must be such as would authorize a suit for divorce a mensa et thoro.</p>

<p>1. Forfeited LAND — Redemption—Commissioner of School LANDS.</p> <p>Where the commissioner of school lands is proceeding under the provisions of chapter 105 of the Code to obtain a decree for the sale of a lot of land located in a city or town which has been forfeited by failure of the owner to have the same entered upon the land-books of the proper county and charged with the taxes thereon, as provided by law, and the former owner thereof flies his petition in said proceeding, praying that he may be allowed to redeem the same, as a condition precedent to such redemption such former owner must pay all costs, taxes and interest due thereon, as provided by law, including the municipal taxes, either to the commissioner of school lands or into court.</p> <p>2. Forfeited Lands —Taxation—Commissioner of School Lands — Statute of Limitations.</p> <p>Where such city files a petition in said proceeding, claiming an amount to be due to it for taxes on said lot, it willjnot be deemed thereby to have brought a suit for said amount of taxes, and the statute of limitations will not be applied to the taxes due thereon.</p>

<p>Damages — Roads—Defective Highways — Personal Injuries —Pboximate Cause.</p> <p>The plaintiff and a lady friend were driving a single horse, in a spring-wagon, along the road leading from the city of Charleston to the town of Malden, in Kanawha county, At a point in said road where it was from twelve to eighteen feet wide, two calves yoked together came suddenly from the pawpaw bushes, and frightened the horse, which the plaintiff had owned for two years, and regarded as gentie ; and he commenced backing, and continued so to do until he backed the wagon and its occupants and himself over the steep river bank, whereby the plaintiff was seriously and permanently injured. In a suit brought by said plaintiff against the County Court of Kanawha county to recover damages for the injuries sustained, it was proven by plaintiff that she could have managed the horse but for the narrowness of the road ; that she had travelled the same road two or three times a week for the previous two years without accident — and by another witness that the road was in good condition, smooth, and cindered, and that he had travelled said road two hundred times a year for sixteen years, driving all kinds of horses and teams, and had never met with an accident; that the road at that point was wide enough for two teams to pass, and on one side of the road was a steep mountain which slipped into the road in wet times, and on the other side the river bank. Held that, under the circumstances of this case, the defendant was not liable for said injury.</p>

<p>1. Personal Representative — Judgment—Evidence—Guardian and Ward — Accounting—Pleading—Co-Dependants.</p> <p>A judgment against the personal representative of a decedent is not even prima facie evidence of a debt against the heirs of such decedent.</p> <p>2. Personal Representative — Guardian and Ward — Set-ope —Accounting.</p> <p>The administrators of a guardian who received moneys arising from a judicial sale in a partition cause of land descended to the ward from her father can not, in a settlement of the guardianship for such moneys, set off to the credit of the guardian’s estate, against such moneys, a judgment recovered by the administrators of the guardian against the administrator of the father of the ward for a debt due from him in his lifetime. The judgment is no evidence of debt against the ward, as an heir of her father.</p> <p>3. Peesonal Representative — Guardian and Ward — Judgment — Accounting.</p> <p>An order made by a court upon a suggestion filed by the administrators of the guardian, suggesting that by reason of an execution upon such judgment there is a liability on them as administrators, directing such administrators to apply to the payment of such execution any money or estate in their hands as administrators belonging to or for which they were liable to the administrator of the father of such ward, can not operate to give such administrators credit against such moneys of the wards in a settlement of the guardianship account, any more than the judgment. The suggestion under the statute is only a proceeding to enforce the lien of an execution upon a judgment, andean add no force to the judgment, nor subject estate which that execution could not reach.</p> <p>4. Personal Representative — Guardian and Ward.</p> <p>One person is guardian of.two infant sisters, who are equally owners of moneys paid to the guardian for the common benefit of both infants, and one of the infants sues the guardian’s administrator for a settlement of the account of her guardianship, making her sister a defendant, alleging in her bill that'the moneys paid to the guardian were the common property of herself and her sister, but not alleging that her guardian was also guardian of her sister, and asking only payment of what was due her from her guardian’s estate. The sister files an answer, alleging that the deceased was also her guardian, and received such moneys for the benefit of both her sister and herself, and praying that the account, as between her and her deceased guardian, be settled in the suit, and a decree given her for what is due her from the guardian. The plaintiff shows herself entitled to relief against her guardian’s estate, and the proof, as between plaintiff and defendant, shows the sister also entitled to similar relief. Held, that it was proper to receive such answer, and to decree for each of the wards against the guardian’s administrators.</p> <p>5. Amendment — New Matter.</p> <p>An amended answer, presenting as new matter only matter immaterial and irrelevant, ought to be rejected.</p> <p>6. Guardian and Ward — Accounting—Interest.</p> <p>When a guardianship terminates by the death of the guardian, simple interest only, and not compound, should be charged from the death of the guardian on the balance found due from him at his death.</p>

<p>1. Options.</p> <p>A unilateral contract, commonly called an “option,” proposes to sell land for cash, “if paid within fifteen days.” There must be acceptance of it within the fifteen days, and notice of such acceptance to the proposer within the same period; otherwise the option is at an end.</p> <p>2. Options -Notice.</p> <p>If the proposer is not, within the said period, ready and able to deliver to the holder of the option a deed conveying the land, and the holder of the option knows that fact, and declares to the proposer, within the period, his willingness and intention to pay the purchase-money simultaneously with the delivery of such deed, and there is good reason to believe on the part of the pro-' poser that though the holder of the option has not actual current money then to pay or tender to the proposer in payment for the laud, yet he has credit and-ability to give bank-checks, which would be honored by the time the deed can be delivered, but which the proposer refuses, or that he will have the actual money present for payment by the time the deed can be delivered, and the holder of the option has, within the period, accepted it and given notice of his acceptance to the proposer, then the failure of its holder to pay or tender the purchase-money within the period will not lose to him the benefit of the option, though such payment or tender was demanded of him by the proposer within the period.</p> <p>3.Options — Deed—Payment.</p> <p>The obligation of such proposer to deliver such deed and the obligation of the holder of the option to pay the money are ^ mutual and dependent, and are to be performed si multaneousI^ÜlJP^</p> <p>4. Options — Third Party — Trusts and Trustees.</p> <p>A third party who, with notice of such equity of the holder of such option, purchased the land from such proposer, takes it subject to the rights of the holder of the option, and holds it in trust for him, and the latter may in equity follow the land into the second purchaser’s hands, and compel him to convey the land to him.</p> <p>5. OptioNS — Specific Performance.</p> <p>In a suit in equity against the proposer of such option and the second purchaser, the holder of such option may pray for the specific execution of the contract by a conveyance of the land to him from them, or, in the alternative, for the purchase-money which the second- purchaser agreed to pay, and the one or the other relief may be decreed according to the circumstances, or as the plaintiff may elect. But in case there shall be a decree, not for specific execution, but for money, the decree must he against the proposer in such option, and not against him and the second purchaser, or against the latter alone.</p> <p>6. Options — Sale.</p> <p>In case of such a decree for money, and not for specific execution, it is proper to hold the land bound for its payment, and to decree its sale for non-payment.</p> <p>7. Options — Answer - Statute of Frauds</p> <p>When an answer admits an agreement for the sale of land as alleged in the bill, though it be oral, the defendant must plead the statute of frauds and perjuries, or the answer must claim its benefit; otherwise he is held to have admitted the agreement, and renounced the statute’s benefit.</p> <p>8. Options — Answer -Statute of Fraud.</p> <p>If the answer denies generally the making of any such agreement as that alleged in the bill, the plaintiff must prove an agreement valid under the statute; but if the answer admits an agreement, substantially the same as that alleged in the bill, and differing from the agreement alleged in the bill in points not essential, the answer is treated as admitting the agreement., and, unless the defence under the statute is made by plea or answer, the statute will not avail the defendant.</p> <p>9. Options — Third Party — Notice.</p> <p>When a party purchases land with notice of an equity in a third party, in a suit by such third party to enforce his equity, brought after such purchase, such purchaser is a necessary party, if relief by way of sale of the land is given, unless it appear either that he had notice of the suit pending at the time of his purchase, or that notice oí-Us pendens had been recorded under section 18, e. 189, Code 1887, before such purchase.</p> <p>10. Options — Sale—Parties.</p> <p>It is error to decree land to be sold in which a person not • a party to the suit has au interest, legal or equitable.</p> <p>11. Non-Resident— Bill Taken for Confessed —Personal Decree.</p> <p>It is error to take a bill for confessed against a party proceeded against as a non-resident, and render a personal decree against him if he has not appeared in the cause.</p>

<p>1. Executory Agreement — BoNds and Mortgages — Priorities —Compensation.</p> <p>The C, I. Co. holds first mortgage bonds under a mortgage, dated in 1872, given by the S. V. R’d Co.; and the two companies make an executory agreement providing that the bonds held by the C. I. Co. shall be cancelled, and in place of them the S. V. R’d Co. shall issue and deliver to the C. I. Co. second mortgage bonds, which are to be subject to certain first mortgage bonds specified in the agreement to be issued by the S. V. R’d Co. to go to other parties, to complete the railroad of the S. V R’d Co. Under the agreement, the bonds under the mortgage of 1872 are cancelled, and a release of that mortgage is made by the trustee therein. Then the S. V. R’d Co. executes three mortgages on its property, the trustee therein having notice of the right of the C. I. Co. under said agreement. It never delivered to the C. I. Co. the second mortgage bonds called for by said agreement. The C. I. Co. is held entitled to equitable compensation under such agreement for the failure of the 8. V. R’d Co. to deliver such second mortgage bonds. Held,, that by force of such agreement, notwithstanding the failure to deliver such second mortage bonds, the equitable compensation for such failure decreed to the C. I. Co. must be subject to the first mortgage bonds to which such agreement made the second mortgage bonds subject; and it can not he accorded priority over such bonds by reason of the mortgage of 1872,</p> <p>2. Exeoutory Agreement — Bonds and Mortgages — Priorities —Compensation.</p> <p>The C. I. Co. repudiated such agreement, and claimed as for the said cancelled bonds, and did not demand such second mortgage bonds, and never claimed any compensation under said agreement for failure to deliver the second mortgage bonds until after a decree holding it bound by said agreement. For this reason, though, had such bonds been delivered according to the agreement, they could have been sold by the C. I. Co. at par, and that company is thus damaged by such failure to deliver the bonds, yet these facts will not give it preference for the compensation decreed it over the first mortgage bonds, to which the agreement makes such second mortgage bonds subject, notwithstanding such position of subordination may entail great loss to the C. I. Co., as compared with what it would have realized by a sale of the second mortgage bonds, had they been delivered.</p> <p>3. ExeoutoRY Agreement — Bonds and MoRtgages — Compensation.</p> <p>The measure of compensation under said agreement is the amount of bonds called for therein, and.the lien is according to the order specified in such agreement.</p> <p>4. Executory Agreement — Lien.</p> <p>Every express executory agreement in writing whereby the contracting party indicates an intention to make some particular property, real or personal, ora fund therein identified, a security for a debt or other obligation, or whereby he promises to convey, assign, or transfer the property as security, creates an equitable lien upon the property which is enforceable against the property.</p> <p>5. Executory Agreement — Garnishment. ■</p> <p>An attachment against the estate of the O. I.Co. summons M., president of the S. V. R’d Co., garnishee, to answer what property of the C. I. Co. he has in hand, and a judgment is rendered that the plaintiff recover of M., president of the 8. V. R’d Co., garnishee of C. I. Co., a sum of money, are not an attachment and judgment against the S. V. R’d Co. as garnishee, and do not bind property in the hands of the latter company belonging to the C. I. Co. ; and a sale of the property under execution upon such judgment does not pass title thereto, or bar the O. I. Co. from setting up its claim to such property against the S. V. R’d Co., either according to the general law, or law of Pennsylvania.</p> <p>6. Executory Agreement — Bonds and Mortgages.</p> <p>Such property being negotiable mortgage bonds, and it not appearing that when judgment was rendered they had been so executed as to be considered in existence as valid mortgage bonds, a sale of them under such proceeding would not pass title thereto under the Pennsylvania law.</p>

<p>Taxation — County Authobities — Road Tax.</p> <p>Taxes imposed by the county court for road purposes in a district under chapter 35, Acts 1881 (Code 1887, p 338) are taxes assessed by “county authorities” within the meaning of section 7, art. 10, of the constitution, and are to be included with other taxes levied by the county court, in determining whether the limit of taxation therein fixed will be exceeded.</p>