Volume 36 — West Virginia Reports

<p>1. ATTORNEY AT J..AW — Cl-IAMPERTY.</p> <p>A person having, or honestly believing he has, an interest in the subject of litigation in a suit may lawfully assist in payment of costs and expenses in the defence or maintenance of such suit.</p> <p>2. Attorney at Law — Contingent Fee.</p> <p>A contract to pay counsel for his services an amount contingent entirely upon success is not, for that reason, illegal.</p> <p>3. Attorney at Law — Assignment oe Cause oe Action.</p> <p>An attorney at law, while holding that relation, can not, as a general rule, make a valid purchase of the subject-matter of litigation of his client, and the same is voidable at the option of the client.</p> <p>4. Attorney at Law — Limitations of Actions.</p> <p>But the suit to avoid such sale must he brought within a reasonable time.</p> <p>• 5. Attorney at Law — Assigumbnt of Cause of Action.</p> <p>And such sale can not bo avoided after it has been deliberately ratified or confirmed on full information.</p> <p>6. Attorney at Law — Assignment of Cause of Action-Notice. Nor can it be set aside as against subsequent purchasers for value without notice.</p>

<p>1. Husband and Wife — Fraudulent Conveyances — Titee.</p> <p>A deed from a husband conveying land directly to liis wife, though void at law aud passing no title, is valid in equity to pass a substantial estate.</p> <p>2. Husband and Wire — Fraudulent Conveyances — Title—Con ■ STRUCTION OF STATUTES.</p> <p>Such deed is valid in equity notwithstanding the words, “from any person other than her husband,” in section 3, c. 66, Code 1868. That section, as it was before amendment in 1891, did not touch such deed, but left it as before the enactment of said section.</p> <p>3. Husband and Wipe — Fraudulent Conveyances — Limitation op Actions.</p> <p>A voluntary conveyance, merely for that cause, can not be avoided by suit brought after five years from its date.</p> <p>4. Husband and Wipe — Improvements—Interest.</p> <p>Money expended by a husband in permanent improvements on land which is the wife’s separate estate, though expended without fraudulent intent in fact, may be charged on such land for debts existing when such improvements were made. Interest should be allowed on such money only from the commencement of suit to charge it.</p> <p>5. Husband and Wipe — Improvements.</p> <p>In the absence of actual fraudulent intent, the value of the property, less the value of permanent improvements made with the husband’s means, should be ascertained, as also the value of such improvements ; and in case of sale, and inadequacy of its proceeds to pay both values, the creditors and wife should share therein, ratably, on the basis of such values.</p>

<p>cited Wap. Att. 36-38; 31 W. Va. 392; Dan. Att. §§ 268, 270; 30 Gratt. 718.</p> <p>cited 28 Ga. 27; 30 Gratt. 718.</p>

<p>1. Advancements — Intention.</p> <p>Where a father confers the title to either real estate or personal property upon his children, and in the distribution of his estate it is claimed that the title so conferred was by way of advancement, the solution of the question depends upon the intention of the father in so disposing of said property, which is to be ascertained from the evidence and surrounding circumstances, such as the value of his entire estate, the number of his children, eta.</p> <p>2. Advancements — CONSIDERATION.</p> <p>Where a conveyance is made by a father to his children in consideration of one dollar or a very inadequate consideration and for the further consideration of natural love and affection the conveyance so made is prima faoie an advancement to the grantees.</p> <p>3. Advancements — Parol Evidence — Intention.</p> <p>After the death of the father, on the distribution of his estate, parol testimony is admissible to explain the attending circumstances of the conveyance, and that it was intended, either in whole or in part, as an advancement.</p> <p>4. Advancements.</p> <p>Where the question as to whether in making conveyances to some of his children, the father intended them by way of advancements, has been referred to a commissioner, who, upon the evidence adduced before him, which is returned with his report, has found that such conveyances had been made by way of advancement, which report is excepted to as being unsupported by the evidence, this Court will review the evidence, but, unless the same is clearly insufficient in any reasonable view of it to support the findings of the commissioner, will affirm the decree of the Circuit Court confirming- such report.</p>

<p>Title — ConoR of Title — Adversary Possession.</p> <p>Color of title, for tlie purpose of adverse possession under the statute of limitations as to land, is that which has the semblance or appearance of title, legal or equitable, but which is in fact no title. Any written instrument, however defective or imperfect, no matter from Avhat cause invalid, purporting to pass or convey title to land, which defines the extent of the claim under it, is color of title.</p> <p>Title — Color op Title — Trusts and Trustees</p> <p>A deed purporting to convey land in fee under a void sale, made under a deed of trust, by a trustee having no legal authority, gives color of title.</p> <p>Title — Landlord and Tenant — Adversary Possession.</p> <p>Though a tenant can not deny his landlord’s title while the relation of landlord and tenant exists, yet if the tenant accept a deed from another, purporting to convey the land to him in fee, and later conveys it in fee to another, and both he and his alienee claim the land in their own right under such conveyances,, and the landlord has knowledge of such conveyances and claim, possession by such tenant and his alienee after such knowledge on the part of the landlord for the period fixed by the statute of limitations will be adversary, and will bar the landlord’s right.</p> <p>4. Title — Teusts and Teustebs.</p> <p>A creditor secured by a deed of trust purchases the land at a void sale under such deed, and the trustee makes him a deed purporting to convey it in fee, and such purchaser afterward by deed conveys the land in fee to another, and such purchaser and his alienee hold actual possession, claiming the land in their own right, for the period of the statute of limitations. Such possession gives title and bars the right of the grantor in such deed of trust, and he can not maintain a bill to redeem and recover the land.</p> <p>5. Title — Laches.</p> <p>The facts stated in the last section with the further fact that for at least seventeen years before suit such grantor knew of such sale, conveyances, possession, and claim by such purchaser and his alienee, would, by reason of laches and staleness, defeat a suit in equity, brought to set aside such sale and conveyances, and redeem and recover the land, oven if the statute of limitations did not bar it.</p>

<p>1. Adversary Possession.</p> <p>The elements of an adversary possession of land, with reference to the statutory bar, are: (1) It must be under color or claim of title. If under claim of title only, it does not require the act of any vendor or other party; but in such case the possession is limited to the claimant’s inclosure. Color of title is a deed or other writing from some one which shows the nature of the party’s claim and defines its extent. (2) The possession fiiust be actual. The land must bear on some part of it permanent, visible, open marks of the claimant’s ownership, as by occupation, cultivation, or such like use and enjoyment, such as may be seen by any one who may pass that way. (3) It must be adverse. It must be held exclusively be the claimant as owner, and against all others. (4) It must bo bona fide, but it is not necessary that the claimant should believe his claim to be a good or valid one. Pie may know that some other person has the better right. It is not necessary that he should think his claim good in its inception for it generally begins in and presupposes wrong; but it must not be fraudulent, nor, except in certain cases well settled, involve any breach of trust. In this State the tenant may in some cases assert his adverse colorable title against his landlord without first restoring the possession; but his possession will not be adverse, until and unless notice of his disclaimer has been distinctly and unequivocally brought home to the landlord; and having entered under his landlord’s title he can not dispute it, in the sense of putting him to the proof of title. But, thisprivilege being liable to great abuse, in such case it will be subjected to rigid scrutiny— a great strictness of proof that knowledge of the disclaimer has been brought home to the landlord. -(5)-'Such possession must be continuous and uninterrupted for (ton years by our law) the lieriod proscribed by the statute — “continuous,” in the sense of not being abandoned by himself; “uninterrupted,” in the sense of not being effectively broken by another.</p> <p>2. Adversary Possession.</p> <p>A case in which the doctrine of adversary possession is applied.</p>

<p>1. Damages — RailRoad Companies — Negligence—Master and Servant.</p> <p>A servant who seeks to recover for an injury which, he claims, resulted from defective machinery or appliances furnished by the master to be used about the business in which such servant was employed, takes upon himself the burden of establishing negligence on the part of the master, and due care on his own part; and, in order to entitle him to recover, he must overcome two presumptions: first, that the master has discharged his duty to the servant by providing suitable machinery and appliances for the business, and in keeping them in condition; second, that the servant assumed all of the usual and ordinary hazards of the business.</p> <p>2. Damages-Railroad Companies— Negligence — Master and Servant.</p> <p>Such servant takes upon himself the burden of showing that the master had notice of the defect complained of, or that, by the exorcise of the ordinary care which he is bound to observe, he would have known of it, and that the servant was ignorant of such defect and had not equal means of knowledge.</p> <p>3. Damages — Railroad Companies — Negligence—Master and Servant.</p> <p>From the mere fact that an injury results to a servant from a latent defect in the machinery or appliances of the business, no presumption of negligence on the master’s part is raised. There must be evidence of negligence connecting him with the injury. Tlie mere fact that machinery proves defective, and that an injury results therefrom, does not fix the master’s liability.</p> <p>4. Damages — Railroad Companies — Negligence—Master and Hiorvant.</p> <p>Whore an injury occurs to an employe of a railway company through a defect in the machinery or implements furnished to the employes by the company, knowledge of such defect must be brought home to the company, or it must be proved that the company was ignorant of the same through its own negligence or want of care, before the company can be made liable.</p> <p>5. Damages — Railroad Companies — Negligence—Master and Servant.</p> <p>It is the duty of such railroad company to guard its employes from injuries resulting from unsound, unsafe and defective engines, cars and appliances by having the same continuously inspected by persons competent to perforin that duty; and the negligence of such inspector in the discharge of this duty is the negligence of the company.</p>

<p>1. CONSTITUTIONAL LAW — HOMICIDE AND POISONING — DEATH IN one State from Wound Inflicted in Another.</p> <p>The latter clause of section 6, c. 144, of the Code (1891) providing that, “if a person be stricken or poisoned out of this State, and die by reason thereof within this State, the offender shall be as guilty and may be prosecuted and punished, as if the mortal stroke had been given or poison administered in the county in which the person so stricken or poisoned may so die,” is not unconstitutional or invalid.</p> <p>2. Constitutional Law.</p> <p>Section 3 of article 3 and amendment 6 Of the constitution of the United States apply to offences against the United States and proceedings in its courts, and not to offences against a State or proceedings therefor in the State courts.</p> <p>3. Ckiminaj. Proceedings — Trial.</p> <p>Crime committed partly in one State, partly in another; partly in one county, partly in another. Place of trial discussed.</p> <p>4. CRIMINAL PROCEEDINGS — TRIAL.</p> <p>Clause of constitution that trial shall be in county where of-fence committed discussed.</p>

<p>1. Evidence.</p> <p>Where, on a jury trial, there is any evidence tending to sustain the plaintiff’s demand, the court ought not to strike out the evidence.</p> <p>2. Amendments — Appeal—Justice op the Peace — Continuance.</p> <p>If a party during trial of an appeal from a justice is entitled to amend his pleadings, that right can not be made to depend solely on whether the adverse party is then ready to proceed with the trial. If such amendment would be a surprise to the other party, a continuance will obviate that objection.</p>

<p>1. Declaration — Pleading—Pbomissoby Note.</p> <p>Where a promissory note has been assigned for value received to A., who sued thereon and obtained judgment against the maker, and subsequently assigned and transferred said judgment for value received to B. who sued out execution thereon, which resulted in a return: “No property found,” — in an action of as-sumpsit, brought by B. against the original payee in said note, a declaration was filed which contains but one special count, in which the date of said assignments, judgment and return are set forth, averring that said assignments were made for value received, and that the defendant had notice thereof, and concluding : “By reason whereof the said defendant became and was liable to pay” etc., “and undertook and faithfully promised the plaintiff to pay him the said sum” eta. Although considerable delay before bringing suit on said note, and suing out execution thereon may be apparent in said recitals, it is not necessary to aver in the declaration any excuse for such delay; and such declaration is good upon general demurrer.</p> <p>2: Presumption — Nonsuit—Reinstatement.</p> <p>Where a plaintiff is nonsuited, and is ordered to pay costs and damages, if by a subsequent order in the case the nonsuit i» set aside, and the action is reinstated on the docket, as recited in the order, upon the payment of costs, and at another day the parties appear by their attorneys and waive a jury and consent to submit the matters of law and fact to the courtin lieu of a jury, and the trial is ju'oceeded with, it must be presumed that the former order, requiring the payment of costs, has been either complied with or waived by the parties.</p>

<p>1. I’jskso.n'al Judgment — Publication—Lien.</p> <p>A personal judgment lor money against a non-resident on publication without service of process or appearance is void, is no lien on land and may be attacked collaterally.</p> <p>2. Bill in Ohanoeky — DecRbe.</p> <p>A suit against a decedent’s representatives to charge his estate with a debt, the pleadings in which contain no allegation of debts against his heirs, and ask no relief as to their debts against land descended to them from such decedent, can not he made the vehicle of ascertaining and enforcing personal debts of such heirs against such laud. A decree therein as to that matter would be a nullity, (p. 127.)</p> <p>3. Bide in Chancery — Decree—Guardian and Ward — Infants.</p> <p>Nor can a suit brought by a guardian to sell infants' lands, under chapter 128, Code Va. I860, the bill in which contains no matter as to the existence of debts of the person, from whom their estate descended, and asks no relief in that respect, bo made the vehicle to enforce such debts against such lands, (p. 127.)</p> <p>4. Bide in Chancery — Decree—Guardian and Ward — Infants</p> <p>If the hill of such guardian, to sell lands of infants held jointly by them and others, alleges it to be for the benefit of all the owners to sell the land as a whole, and makes all the owners parties, and prays a sale of the whole of their interests, and the co-owners with such infants, who are mi juris, answer and unite in the prayer of the bill, and ask that the whole land be sold, such co-owners thus make such suit an effective proceeding to sell their land. (p. 128.)</p> <p>5. Bide in Chancery — Guardian and Ward — Infants—Reference — Consent—Statute of LIMITATIONS — Liens.</p> <p>Two such suits are heard together, and by consent of such parties, who are mi juris, and of the guardian of the infants an order is made referring the causes toa commissioner to ascertain debts of the decedent, and also liens against lands descended to his heirs from the decedent for the debt of such heirs. Such consent by guardian is, as to the infants, ineffectual to make such reference valid to ascertain the liens against the lauds of such infants for the debts of their father, who was an heir of said decedent first named, as the suits are not competent to enforce such liens, and such reference will not stop the statute of limitations as to debts against the father of said infants. But such reference as to others swi juris will bo valid by reason of their consent to it, and will, as to liens against them, stop the statute at the date of such reference, (p. 128.)</p> <p>6. Guardian and Ward — Infants—Consent.</p> <p>A guardian can not, by consent to a proceeding which would be void and ineffectual to prejudice the estate of infants, render it effectual to prejudice their estate, (p. 128.)</p> <p>7. Rehearing — Intereocutory Decree.</p> <p>There is no statute limiting a petition for rehearing to an interlocutory non-appcalable decree, (p. 130.)</p> <p>8. Saees — Deeay—Inadequacy of Price — Deed of Trust.</p> <p>To sot aside a sale under a deed of trust for inadequacy of price, irregularity in, or want of sufficient notice of, sale, or because of incumbrances over the land at the time of sale, a party must proceed without unreasonable delay, (p. 134.)</p> <p>9. Sales — Notice—Deed oe Trust.</p> <p>Publication of a notice of sale under a deed of trust completed before April 1,1869, when the Code of 1868 took effect, is effectual, notwithstanding that Code provides a different notice, and is saved by section 2, c. 166, Code 1868; and a sale made under such notice, after April 1, 1869, is not for such cause invalid, (p. 132.)</p> <p>10. CONSTRUCTION* OE STATUTES.</p> <p>Statutes, though remedial, are to be construed prima facie as prospective in operation, (p. 133.)</p> <p>11. Parties — Stranger—Process—'Waiver—Appearance.</p> <p>A petition filed by a stranger to a cause, asking relief against a defendant therein on new matter contained in such petition, must be filed by leave of court, must make such, defendant a party to it, and process to answer it must be served on such defendant, unless waived by appearance or otherwise, (p. 137.)</p> <p>12. Parties — Decree.</p> <p>If such defendant ask to become a defendant to such petition, he should be allowed to do so; and, if he be refused the privilege of defending such petition, a decree diverting his property-rights from him on the facts contained in such petition is erroneous, (p. 138.)</p> <p>13. Decree — Btranuer—Appeal.</p> <p>If such a defendant, by an order in the cause, be allowed to file a petition to set aside a deed from him, vesting such stranger filing the first mentioned petition with the right asserted therein, and the petition of such defendant be dismissed, and an appeal be taken by him, it is error for the court, pending such appeal, to proceed to decree such stranger upon his petition the relief sought thereby against such defendant, (p. 139.)</p> <p>14. Attorney at Law — Fees—Lien—Judgment.</p> <p>An attorney at law has a lien on ajudgmont or decree, obtained by him for his client, for services and disbursements in the case, or in a case so connected with it as to form the basis on which such judgment is rendered, or as to be essential to realizing such judgment or decree, but not for services in other cases, (p. 140.)</p> <p>15. Attorney at Law — Lien.</p> <p>A attorney has no lien against land for prosecuting a suit to recover it for his client, or for defending a suit to recover it from his client, or to subject it to a debt or claim, (pp. 141, 144, 159.)</p> <p>16. Attorney at Law — Lien.</p> <p>An attorney has no lien upon the assets of an estate realized from a sale of its lands for defending a suit brought to establish a demand against it. (pp. 143, 153.)</p> <p>17. Attorney at Law — Lien.</p> <p>An attorney has no lien upon a fund arising from sale of land of a person or estate, already owned by such person or estate, for services purely defensive, in resisting- suits brought to establish demands against it. (pp. 143, 153.)</p> <p>18. CONVERSION.</p> <p>Conversion of land into personalty by sale under decree, (p. 150.)</p>

<p>1.Juries — View by Jury — DiscretioN of the Court.</p> <p>By section 30, e. 116, Code, “the jury may in any case, at the request of either party, be taken to view the premises or place in question, or any property, matter, or thing relating to the controversy between the parties, when it shall appear to the Court that such view is necessary to a just decision.” Held, a motion under this section is peculiarly within the discretion of the trial-court, and, before its rulings thereon will be disturbed, it must be made clearly manifest that such view was necessary to a just decision, was practicable and the request therefor denied, to the probable injury of the party applying.</p> <p>2.EVIDENCE — Bes Gestae.</p> <p>Where the form of the question propounded to the witness on the stand indicates, of itself, that it is framed and intended to elicit in reply something said at the time and place of the accident as part of the res gestae, held, it is error to refuse the question, but the answer should be heard or seen, and then its competency passed upon.</p> <p>3.EvideNce — Juries.</p> <p>In addition to the facts proved, the jury has the right to use the knowledge and experience common to mankind, and to take into the account all the presumptions which, according to the ordinary course of events er according to the ordinary experience of mankind, arise out of the facts proved.</p> <p>4.Evidence — Striking Out Evidence — Baidroad Companies— Negligence.</p> <p>In a case where plaintiff's evidence is competent, and in some fairly appreciable degree tends to show on the part- of the railroad company a want of ordinary care in keeping a reasonable outlook ahead for persons and animals, and other obstructions on the track, in front of the moving train, which runs over and kills a child between four" and five years old seated on the track in plain view, recognizable as a child by any one using ordinary care and precaution to discover it, and for a distance not less than twice that within which a train can be stopped, held, it is error to withdraw the case from the jury by the method of striking out all the plaintiff’s evidence.</p> <p>5. Evidence.</p> <p>A case in which the foregoing rules are applied.</p>

<p>1. CoNstitutionai; Law.</p> <p>The act of the legislature passed on the 27th day of February, 1891 (Acts 1891, c. 42) in relation to petit juries, and embraced in the Code as chapter 116, p. 773, is not in violation of the constitution of this State, but is a valid and constitutional act.</p> <p>2. CoNStitutioNAXj Law.</p> <p>The thirtieth section of article VI, of the constitution of this State concludes in the following language: “And no act of the legislature, except such as may be passed at the first session under this constitution, shall take effect until the expiration of ninety days after its passage, unless the legislature shall by a vote of two thirds of the members elected to each house taken by yeas and nays otherwise direct.” Held, that the word “passage” in this section relates to the date of the passage of the act by the two houses, and not to the date of its approval by the governor; and that, the act in question having passed both houses on the 27th of February, 1891, went into effect on the 28th day of May following.</p> <p>3. Constitutional Law — Governor.</p> <p>Article V. of the constitution of this State provides that “the legislative, executive, and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature.” It follows from this section that the governor has no legislative functions to perform, and his approval of an act of the legislature, which is to take effect not at its passage, but after the expiration of ninety days from its passage, relates back to the date of passage by the legislature.</p> <p>4. Constitutional Law.</p> <p>In computing the ninety days required by the constitution, it is immaterial whether we count the day of passage and reject the ninetieth day, or whether we include the ninetieth day and exclude the day of the passage of the act. ^ An act passed on the 27th day of February, 1891, will, under said constitutional provision, take effect on the 28th day of May, 1891.</p> <p>5. Construction op Statutes — Jury Commissioners— Office— * Term op Office.</p> <p>The jury act under consideration prescribes that the jury commissioners shall be appointed by the Circuit Court, or the judge thereof in vacation, and that “their term of office shall be four years, and shall commence on the 1st day of June next after their appointment,” eta. lie,Id, that an appointment made by a circuit judge under this law on the 1st day of June, 1891, conferred upon the appointee the office of jury commissioner, and that his term of office commenced on the 1st day of June, 1891.</p>

<p>1. A1UG3AL.</p> <p>Tn a suit to subject land to a debt and set aside a deed from the debtor as fraudulent there is a decree subjecting the land. Though the debt is less than one hundred dollars, yet the alienee holding under such deed may appeal, because the case involves the title to the land within the meaning of article VIII, § 3 of the constitution.</p> <p>2. Appeal.</p> <p>Where the title or boundaries of land are involved in a suit in a Circuit Court, and there is error, there may be an appeal or writ of error without regard to the value of the land.</p> <p>3. Fraudulent CoNveyance.</p> <p>A voluntary transfer of property from husband to wife is not, simply because voluntary, void as to subsequent creditors of the husband.</p>

<p>1. Attorney’s Lien.</p> <p>An attorney at law has no lien upon land for his fee or compensation for services in a suit wherein the land is recovered for his client.</p> <p>2. Separate Estate — Married Women.</p> <p>Land which is the separate estate of a married women can not be sold for a debt contracted by her during coverture, but can only be rented during the coverture.</p>

<p>cited 9 Wheat. 873; 1 Wash. 146; 3 Rand. 434; 33 W. Va. 940.</p> <p>cited 11 W. Va. 535; 2 L. R. A. 426; 13 L. R. A. 244; 7 W. Va. 504; 10 Wall. 676; 102 D. S. 294; 106 ü. S. 487; 28 W. Va. 56; 28 Blatchf. C. C. 486; 6 Am. Dec. 482; 2 Call 102; 4 II. & M. 415; 1 Graft. 416; 8 Ala. 632; 1 Mo. 288; 4 Serg. & R. 263; 10 Pa. St. 457; 10 Am. Dee. 715; 103 N. G. 414; 27 W. Va. 1; 6 Rand. 465; Id. 496, 497 ; 11 Gratt. 468; 44 Mich. 25; 7 Ala. 230; 1 Dana 338; 3 J. J. Marsh. 443; 4 Strobh. 186; 9 Paige 461; 33 Miss. 539; 9 Wheat. 837; 1 Wash. 145; 3 Rand. 434.</p>

<p>1. Expert — Evidence.</p> <p>Where a witness is called and examined as an expert as to whether a steamboat was properly landed for the purpose of discharging a passenger, and as to what officers were required to properly man such boat, it must not only appear that the witness had sufficient knowledge and experience in reference to the subject-matter under consideration, but that he is acquainted with the class and dimensions of the boat, and the character and condition of the river and shore where the landing was made, or has heard the same described by witnesses in the case, before he can be allowed to express his opinion as an expert.</p> <p>2. Experi^Evidence.</p> <p>In order to obtain the opinion of a witness on matters not depending upon general knowledge, but on facts not testified to by himself, either the witness must be present and hear all the testimony or the testimony must be summed up in the question put to him, and in either case the question must be put to him hypothetically.</p>

<p>1. Sheriffs — Removal from Office — Notice—Bond.</p> <p>Where a sheriii has been regularly elected and having qualified and given bond, as required by law, has assumed the duties of his office, such office can not be declared vacant by the County Court, under section 20 of chapter 10 of the Code, for failure to give a new bond or an additional bond to that already given, when so required by said court, until he is notified of such requirement.</p> <p>2. Sheriff- -Removal from Office — Notice—Bond—Non Compos Mentis.</p> <p>Service of such notice will not be sufficient to authorize the court to declare such office vacant for failure to comply with such requirement, if the same is delivered to such sheriff when he is non compos mentis or insane.</p> <p>3. Sheriff — Removal from Office — Quo Warranto — Parties.</p> <p>Where the office of sheriff is declared vacant for failure on the part of the sheriff to give a new or additional bond when so required by the County Court, and another person is appointed by said court to fill the vacancy so declared, and proceedings in the nature of a writ of quo warranto are instituted by the sheriff so deprived of the office against the person appointed to fill the vacancy so declared, and the latter declines to make any defence to said proceeding, the Circuit Court can not admit the County Court as a defendant against said proceeding.</p>

<p>1. Damages--MasteR and Servant.</p> <p>When a servant enters into the employment, of a master he assumes all the ordinary hazards incident to the employment, whether the employment be dangerous or otherwise.</p> <p>2. Damages — Master and Servant^ — Negligence.</p> <p>The test of liability is the negligence of the master, not the danger of the employment, though the danger of the employment may help to determine the ordinary care required in the case.</p> <p>3. Damages — Master and Servant — Negligence.</p> <p>The mere fact of injury received by the servant raises no presumption of negligence'on the part of the master.</p> <p>4. Damages — Master and Servant — Negligence.</p> <p>When a servant willfully encounters dangers which are known to him, the master is not responsible for an injury occasioned thereby.</p> <p>5. Damages — Master and Servant — Negligence.</p> <p>A servant having' knowledge of danger about him must use diligence and care in protecting himself from harm.</p> <p>G. Damages — Master and Servant — Negligence.</p> <p>A servant can not recover if his injury was the direct result of his own disobedience of orders.</p> <p>7. Damages — Master and Servant — Negligence.</p> <p>When there is no evidence tending in any fairly appreciable degree to make out the plaintiff’s case, the court on motion should instruct the jury to find for the defendant, first giving plaintiff an opportunity to suffer a nonsuit if he desires to do so.</p>

<p>1. Res Judicata.</p> <p>A purchaser of land having applied for and obtained an injunction in a Circuit Court restraining the trustee from selling on account of an alleged cloud upon the title, and this Court having on appeal reversed the Circuit Court and decided that the alleged cloud and defect did not constitute sufficient ground for an injunction and dismissed the bill, the plaintiff can not bring a second and precisely similar suit against the same parties for the same purpose and cause of action; and on a plea of res judicata the plea was properly sustained.</p> <p>2. Res Judicata — Trusts and Trustees — Judicial Sales.</p> <p>When a purchaser of land enjoins the sale under a deed of trust securing the deferred purchase-money, and the Circuit Court upon a plea of res judieata sustains the plea and dissolves the injunction, that court may either dismiss the bill entirely, or it may order the sale to be made under its own supervision by the trustee or by special commissioners appointed for the purpose.</p>

<p>1. Deed — SECURITY—Fraud.</p> <p>Where a deed is made for the security of various creditors whose claims are distinct and unmingled with each other, and where part are illegal andfraudulent and another part are fair and untainted with fraud, the security shall not be avoided as to the latter, provided they have given no aid in any way to the concoction of the fraud, (pp. 258, 259.)</p> <p>2. Deed — Security—Fraud.</p> <p>A deed of that character ought to be considered distributively, and, while it is avoided in part, it should be effectual as far as it is good. (pp. 258, 259.)</p> <p>3. Deed — Corporation—Seal.</p> <p>Where the deed of a corporation purports to be sealed with its corporate seal, and it is proven to be signed by the proper agents of the corporation, the presumption is that the seal was affixed by the proper authority, and such contract will be held valid until the contrary is shown, (p. 261.)</p> <p>4. Deed — Corporation—Seal</p> <p>The presumption of authority to affix the corporate seal to a deed or contract will not be overcome by the mere fact that no vote of the directors authorizing it is shown. Fidelity Ins., T. <& S. D. Go. v. Shenandoah Val. B. Go., 32 W. Va. 244 (9 S. E. Rep. 180.) (p. 261.)</p>

<p>1. Eminent Domain — Condemnation of Land.</p> <p>It is a general rule that he who seeks to exercise the extraordinary power of taking private property for public use must follow strictly the mode of procedure prescribed by law. (p. 275.)</p> <p>2. Eminent Domain — Condemnation of Land — Inquisition.</p> <p>Where, upon a fair and reasonable construction of the inquisition and proceedings they are substantially responsive to the requirements of the statute, that is sufficient, (p. 276.)</p> <p>3. Eminent Domain — Condemnation of Land — Inquisition.</p> <p>Chapter 42 of the Code of 1891 especially section 5, determines the form of the application, and what it must contain. This chapter, and especially this section, in what it contains and in what may fairly arise by necessary implication, is exhaustive of such formal requirements, unless otherwise expressly provided elsewhere, (p.' 274.)</p> <p>4. Eminent Domain — Condemnation of Land — Inquisition.</p> <p>It is not necessary for the applicant, in his petition for condemnation, to expressly state that he can not agree with the owner on terms of purchase, as might be inferred from section 7 of chapter 52, when read alone, (p. 274.)</p> <p>5. Eminent Domain — Condemnation of Land — Paeties—Notice —Infants.</p> <p>The statute requires that the owner of each parcel of real estate proposed to be taken shall be made a party to the proceeding, and be served with notice of the application at the time and in the modes prescribed by such chapter, but it does not require service of such notice on an infant owner in person, (p. 272, 273.)</p> <p>6. Eminent Domain — Condemnation of Land — Paeties—Notice —Infants.</p> <p>If at any time during the proceeding it is suggested that there are infant owners, who are in the county and have attained the age of discretion, who ought to be personally notified, the court may so order, (p. 273.)</p> <p>7. Eminent Domain — Condemnation of Land — Paeties—Notice —Infants.</p> <p>The guardian of the infant owner, 'if there be one, must be notified, and as such he has a right to appear and make any and all proper defence for and on behalf of his ward. (p. 273.)</p> <p>8. Eminent Domain — Condemnation of Land — Parties—Notice —Infants.</p> <p>Tf such appearance and defence be not made by such guardian, i hen the court should appoint a guardian ad litem to defend his interest, neither being in the strict proper sense a party to the suit. (p. 273.)</p> <p>9. Eminent Domain — Condemnation of Land — Parties.</p> <p>Where there are adverse or conflicting claims to the real estate proposed to bo taken, the claimants must be made parties to the proceeding, (p. 275.)</p> <p>10. Eminent Domain — Condemnation of Land — Parties.</p> <p>But their conflicting claims should not be litigated until after the condemnation proceeding is ended, (p. 275.)</p> <p>11. Eminent Domain — Condemnation of Land — Parties.</p> <p>Each owner of each parcel has a right to a separate trial and finding, though all may be e mbraced in one application, (p. 275.)</p> <p>12. Eminent Domain — Condemnation of Land — Parties.</p> <p>Where there are two or more conflicting claims to the same parcel, and more than one demands a trial by jury, such trials must be at one and the same time before the jury. (p. 275.)</p> <p>13. Eminent Domain — Condemnation of Land — Jury.</p> <p>The jury of 12 guaranteed by the constitution as well as the 5 commissioners, required by the statute, must be freeholders, (p. 275.)</p> <p>14. Eminent Domain — Condemnation of Land — Jury.</p> <p>And the order impanelling the jury should in some way either expressly.or by necessary implication show that the 12 jurors selected, impanelled and sworn are freeholders, (p. 275.)</p> <p>15. Eminent Domain — Condemnation of Land — Jury—Viewing the Premises.</p> <p>The parties have a right to have the premises viewed by the jury as well as by the commissioners for the ascertainment of facts before rendering their verdict, (p. 272.)</p> <p>16. Eminent Domain — Condemnation of Land — Ad Quod Dam-num.</p> <p>The question, whether two tracts are so connected physically or by use for one common purpose or otherwise as to constitute “one tract” within the meaning of the statute with reference to ascertainment of compensation for damage to the residue, is a question of fact for the jury under the direction of the court as to the law. (p. 272.)</p> <p>17. Eminent Domain — Condemnation of Land — Ad Quod Dam-num — jSTew Trial.</p> <p>Where there is evidence tending to show two tracts thus made one within the meaning of the statute, the exclusion of evidence otherwise competent tending to show the amount of damages to the residue of the tract by reason of the taking of the part taken, for the purpose to which the part thus taken is to be appropriated, is error for which a new trial should be granted in an otherwise proper case, (p.272.)</p>

<p>1. Fraud — -Bubden on Proof.</p> <p>The rule is that he who alleges fraud must prove it, and the supposed exceptions to this rule are more apparent than real. There may be prima facie fraud, .or fraud may be proved by a number of concurrent circumstances ; nevertheless, so long as the scales are evenly balanced, the defendant, against whom fraud is alleged, must prevail, (p. 281.)</p> <p>2. Fraud — Voluntary Conveyance.</p> <p>The second section of chapter 74 of the Code of West Virginia makes a clear distinction between the rights of existing and subsequent creditors as to a voluntary conveyance, and such a conveyance can not be impeached by subsequent creditors on the mere ground of its being voluntary and of the party making it, or at whose instance it was made, being indebted to some extent. There must be proved by such subsequent creditors an actual fraudulent view or intent by proving additional circumstances sufficient to show fraud in fact. (p. 283.)</p> <p>3. Fraud — Voluntary Conveyance.</p> <p>Since the enactment of said section and chapter, voluntary conveyances are void as to prior creditors, not because they are fraudulent, but because they are voluntary, and because of the consequent subordination of the right of the donee to that of all prior creditors, (p. 283.)</p> <p>4. Fraud — Voluístary Conveyance.</p> <p>In the application of this act to voluntary conveyances or donations, made since its passage, which are confessedly and on their face voluntary, the act itself should be regarded as embraced in the purview of such donation or settlement, (p. 284.)</p> <p>5. Fraud — Voluntary Conveyance.</p> <p>The said section should receive a plain, common-sense, remedial construction, and not be frittered away, by resorting to refinements, and to the complicated and almost undeterminable questions of fact and evidence which formerly embarrassed the courts, but which our act was intended to cut up by the roots, (p. 284.)</p> <p>0. Fraud — Voluntary Conveyance.</p> <p>Under said act, the courts of this state have no power to substitute subsequent creditors to the shoes of prior creditors, or to confound the two classes which the act was intended to make, and has made, absolutely distinct, (p. 284.)</p> <p>7. Fraud — Voluntary Conveyance.</p> <p>Prior creditors are not prejudiced by a settlement known and acknowledged to be voluntary, for the reason that such a settlement is entirely abortive to withdraw the property from their debts. Such deed is void as to them, not because it is fraudulent, but because it is voluntary. In ordinary cases, therefore, the Circuit Court has only to ascertain what debts existed when such settlement was made, and to declare it as to them void and as to all subsequent creditors valid. If the latter desire to attack the deed, the burden is on them to prove an actual fraudulent intent attaching to its inception and execution. The mere circumstances that the settlement is voluntary, and the party who made it indebted at the time, have ceased to have any material weight, until the subsequent creditor has connected them, as links in a chain, with some covinous device or circumstance, indicating actual fraudulent intent, (p.284.)</p> <p>8. Fraud — Voluntary Conveyance.</p> <p>Point 4 of the syllabus of Bogara v. Vcrlander, 30 W. Va. 651 (5 tí. Ií. Eei). 847) explained and reconciled, (p. 286.)</p> <p>9. Fraud — Voluntary' Conveyance.</p> <p>The true rule of construction in this State, as recognized and establishad by this Court, is one which preserves the full remedial value of section 2 of said act, and establishes the doctrine that neither the voluntary feature of the conveyance, when the same appears on theface of the instrument, nor the fact of indebtedness on the part of the grantor short of insolvency, unless accompanied by other suspicious circumstances of fraud, are sufficient to warrant the court in setting aside such conveyance as to subsequent creditors, (p. 287.)</p>

<p>cited Const. Art. X. s. 8; 7 W. Ya. 519; Acts 1881, c. 17; Code, c. 39, s. 24; Woods R’y Law 265, 267; 45 N. Y. 772; 94 ü. S. 255 ; 3 Am. R. R. Cas. 58, 64; Woods R’y Law 298; 1 Da. ,286; 96 U. S. 51; 104 U. S 505 ; Dill. § 546 ; 111 U. S. 83; 1 Am. Dig. 90 R 6 Rob. Pr. 324; 24 How. 299 ; Woods R’y Law 266, 272, 286,287, 321; 108 U. S. 110, 117, 123, 282, 287; 99 ü. S. 686; 88 Ill. 11 ; 63 Ala. 611; Dill. §§ 542, 546, 531; 1 S. E. Rep. 873; Sto. Cont. §§ 406, 452; Dwar. Stat. 657; Id. 46, 64; 5 MoL. 178; Dev. C. C Rep. 158 ; 13 la. 310; 29 Conn. 210; 2 Or. 169 ; 23 W. Ya. 667; 27 W. Ya. 681; 28 W. Ya. 287; Woods R’y Law § 105; 95 Ill. 368; 11 Tenti. 329 ; 5 Am. & Eng. R’y Cas. 145; 46 H. Y. 110; 3 Ami. & Eng. R'y Cas. 150, 158, 683; Code, c. 54, s. 57 ; 102 ü. S. 278; 114 U. S. 190 ; 114 Pa. St. 435 ; 119 IT. S. 74.</p> <p>cited 9 W. Ya. 73 ; 12 W. Ya. 502 ; 11 W. Ya. 236; 28 W. Ya. 670; Code, c. 125, s. 40; 4 W. Ya. 53 ; 18 How. 404; Code, c. 125, s. 14; Acts 1888 c. 17, ss. 57-59; 113 ü. S. 227; 92 H. S. 484; 94 U. S. 104 ; Id. 278 ; 1 Wall. 384; 11 W. Ya. 543; 18 W. Ya. 274; 20 W. Ya. 450.</p>

<p>1. Wilis.</p> <p>The will of L. contained the following clause: “I give and bequeath to my wile, M. L., all my estate, both real and personal, of every kind and description, for the purpose of raising her children, to have and to hold to her and her heirs forever.” Said clause conferred upon the wife an absolute estate in the property mentioned, and created no trust in favor of the children.</p> <p>2. Wills.</p> <p>The words, “for the purpose of raising her children,” must- be construed as the motive assigned for the gift.</p>

<p>1. Promissoky Notes and Birds of Exchange — Endorsement.</p> <p>Anote made by the Splint Coal Company to Laidley bears upon its back indorsed first tho name of Laidley, next the name of Quarrier, and is in the hands of an assignee. The paper and in-dorsments import that Laidley is bound as first and Quarrier as second assignor. Money realized by an assignee and applied on the note from a. collateral security assigned by Laidley would constitute no demand against Quarrier, Laidley being liable Le-iore Quarrier. (p. 312.)</p> <p>2. Evidence.</p> <p>Quarrier being dead, Laidley can not give evidence against Quarrier’s estate of a personal transaction with Quarrier to show that in tact Quarrier became bound as joint promisor with, or guarantor for, the Splint Coal Company, because of his incompetency under section 23, c. 130, Code. (pp. 314, 315.) •</p> <p>3. Statute of Limitations — New Promise.</p> <p>A promise to pay the “agreed balance on your judgment” is not good as a new promise, the amount of such agreed balance not appearing. 1 f such balance refer to one thereafter to be agreed upon, and it does not appear that any balance was agreed, the promise is inoperative, (p. 316 )</p> <p>4. Statute oe Limitations — New Promise.</p> <p>A new promise must not be uncertain. It must acknowledge a fixed sum, or a balance which admits of ready and certain ascertainment. (p. 316.)</p>

<p>Railkoad Companies — Ejection of Passenger — Damages— Rules.</p> <p>Boster, the plaintiff, was accepted as a passenger by the railway company at a station on the road where no tickets were sold. On the train the conductor collected his fare — fifty cents — to Milton, the station, to which plaintiff wished to go. After passing Bar-boursville station the conductor again demanded of Boster his fare —thirty cents — from Barboursville to Milton. Boster claimed that he had paid the fare — fifty cents — to Milton. The conductor said he had not, but had paid twenty cents, the fare to Barboursville ; to which B. replied : “I won’t argue the question with you. You ought to know your business.” Then the conductor jerked the cord, and stopped the train. Then B., who had the money, said, “I will pay again, rather than be put off;” and offered to pay, making no tender ; but the conductor caught him in the back, and said: “I don’t want you on here. You will have to get off” B. got off (no force or violence was used; it was at no station) and walked nine miles up the track to Milton. In an action of trespass on the case in tort the jury found a verdict of five hundred dollars damages. Held:</p> <p>I. The action of trespass on the case in tort was proper.</p> <p>II. The damages are not so excessive as to warrant the belief that the jury must have been influenced by partiality, prejudice, or passion, or must have been misled by some mistaken view of the merits of the case.</p> <p>III. Carriers may adopt such rules for the regulation of their business as may seem fit and proper, and they must be observed by the passenger, except so far as they may be opposed to law or be in themselves unreasonable.</p>

<p>cited Patt. R’y Acc. § 187; 6 L. T. (17. S.) 684; 65. Pa. St. 269 ; 11 W. R. Cas. (Pa.) 455 ; 58 Wis. 646 ; 15 Eng. & Am. R. R. Cas. 424; 53 Wis. 626 ; 1 E. & F. 361; 92 R. y. 289 ; 106 Mass. 461.; Id. 180 ; 1 Shear. & Redf. Reg. § 97; Id. § 98; 101 jST. Y. 391; 120 Mass. 306; 69 Me’. 173; 7. C. B. (R. S.) 731 ; 68 R. Y. 283 ; 69 Me. 306; 4 Ex. L. R. 257; 38 Up. Can. Q. B. 173 ; 48 Vt. 127; 4 Shear. & Redf. § 99; 22 O. St. 227 ; 50 Barb. 39 ; 50 Mo. 461 ; 55 Ill. 226 ; 38 111.424; Thomp. Reg. 1155 ; 36 Md. 366; 64 Mo. 439; 23 Vt. 378; 7 Mete. 602; 19 Conn. 507 ; 14 How. 485; 17 Wall. 657; 26 Conn. 591; 1 Ad. & El. 29; 59 Pa. St. 129 ; 2 Ror. R’ys 1131; 79 Pa. St. 33; 60 Mo. 475 ; 2 W. R’y Law, 1206,1270,1271; 4 Hoast. 103 ; 7 C. B. 73; 88 R. C. 129'; 9 C. B. 420; Whart. Reg. §§ 348, 388 ; 14 Week. Rep. 611; Cool. Torts 358; Laws. Rights & Rem. $ 1194; Patt. R’y §§ 187, 188; 133 Mass. 121 j" 92 R. Y. 289 ; 34 W. Va. 514; 25 W. Va. 570.</p> <p>cited 25 W. Va. 692; 35 W. Va. 117; 1 Shear. & Redf. Reg. § 15 ; Big. L. Cas. Torts 662; 34 W. Va. 514; 2 Wood R’y Law 1270, 1271; 83 Va. 554 ; 22 Fed. Rep. 609 ; Big. Torts 697 note; 83 Va. 102 ; 10 Allen 275 ; 59 Pa. St. 129 ; 25 Mich. 1; 67 R. Y. 366, 370 ; 41 Am. Rep. 572; 99 Mass. 216 ; 29 O. St. 364; 10 Mete. 371J 101 R. Y. 381; 142 Mass. 296 ; 61 Eng. Com. 731; 100 Ind. ■221; 66 la. 1708, 713; 69 Me. 173; 2 Wood R’y Law'1271; Bish. Ron. Con. Law 446,1054; Cool. Torts 358; 58 Wis. 646; ■88 H. C. 129; 30 W. Va. 228; 17 Wall. 651; Pat. R’y Acc! Law 184-188 ; Barry o. R. Y. Ceut. R’y Co. 92 R. Y.</p>

<p>l. Assessment of Taxes — Banks—Directoes.</p> <p>When the assessor of a county applies to the proper officer of a bank, organized under the laws of this State, located and doing business in the county and district for which he is assessor, under the provisions of section 64 of chapter 29 of the Code, to ascertain the value of the capital employed or invested in its business, it is the duty of the bank-officer to furnish such information to the assessor as will enable him to properly enter the same in his personal property book, and the directors and stockholders of said bank have no right to elect to withhold such information from the assessor.</p> <p>2. Assessment of Taxes.</p> <p>It is not the duty of the shareholder in such bank to list his stock with the assessor for taxation, when the same has been listed under the provisions of section 64 of said chapter.</p> <p>3. Oonstbuction of Statutes.</p> <p>In the construction of a statute, every part of it must be viewed in connection with the whole, so as to make its parts harmonious, if practicable, and give a sensible and intelligent effect to each. It is not to be presumed that the legislature intended any part of the statute to be without meaning.</p> <p>4. Assessment of Taxes.</p> <p>The intention of the law is that the capital stock of the bank shall be listed for taxation in the county where such bank is located.</p>

<p>1.Specific Performance — Laches.</p> <p>A party seeking specific performance by a bill in equity must show himself to have been ready, desirous, prompt and eager to perform the contract on his own part. The unreasonable delay of the purchaser, which will preclude a decree for specific performance in his behalf, is dependent upon the circumstances of the particular case, and, if his conduct has indicated bad faith or a virtual abandonment of the contract, it will deprive him of all just claim to equitable interposition.</p> <p>2.BurdeN of Proof — Fraud.</p> <p>The rule of law is that he who alleges fraud must prove it.</p> <p>3.Specific Performance — Laches.</p> <p>Where in a bill for specific performance the complainants nowhere aver either their ability or willingness to pay promptly and at once their purchase-money, which has long been overdue, and where there is no evidence in the cause tending to prove either their ability or inclination to make such payment, the relief prayed for ought not to be granted.</p>

<p>1. PARTITION.</p> <p>A reversioner or remainder-man can not compel partition during- the continuance of the particular estate.</p> <p>2. Partition.</p> <p>A wife owning-land in fee (not separate estate) whose husband has made a deed passing such estate as is vested in him as husband, can not, while such estate continues, compel partition.</p> <p>3. Statute op Limitations Life-Estate — Cokstkuctjcon of Statutes.</p> <p>Where a wife is seised in fee of land (not separate estate) and her husband makes a deed purporting- to convey the fee, but void as to the wife, such deed vests in the grantee a life-estate either for the joint lives of the husband and wife or by the curtesy according to facts; and the statute of limitations does not begin to run against the wife's reversion until the termination of such life-estate.</p> <p>4. Statute op Limitations — Life-Estate-- Con sthuction of Statutes.</p> <p>Though such grantee be in possession twenty years during the continuance of such life-estate, yet that will not bar the wife’s reversion under section 4 of chapter 104 of the Code. That section has no reference to a such ease.</p> <p>5.'Statute op Limitations — Life-Estate—Constkuction of Statutes.</p> <p>A continuance of possession by such grantee for ten years after the termination of such life-estate would bar the wife’s reversion under section 1 of chapter 104 of the Code.</p> <p>6. Statute of Limitations — Life-Estate -- Construction of Statutes.</p> <p>A wife owning land in fee (not separate estate) makes a deed purporting to convey the land in fee, but her husband does not join in the deed. The deed being void, possession by the grantee is adverse to husband and wife. Twenty years of such possession will, under section 4, c. 104, of the Code, bar her right, though she remained married during the whole twenty years ; and suit to recover the land may be-brought during- coverture, though ten years of such possession have elapsed. This does not mean that if, after ten years, the coverture cease, there must not be suit within five years after it ceases, under section 8, c. 104.</p>

<p>1. Dowek.</p> <p>At common-law, when the husband was once seised during the coverture in such manner that the wife’s inchoate or contingent right of dower attached, it was not in the power of the. husband to defeat it by any act in the nature of an alienation or charge. The wife upon the death of the husband was entitled to claim dower from the alienee, and the dower was to be assigned her in specie, in the same manner as she-would have recovered against the heir of the husband, had the latter died seised, except as to damages. She was not entitled to any damages unless the husband died seised.</p> <p>2. Dowek — CoNStbuction of Statute.</p> <p>Sections 10,11, and 12 of chapter 65 of our Code on dower, join-ture and curtesy construed, and held, that where the husband has sold realty in his lifetime, which was subject to dower, the value of the widow’s dower is to be computed as against the alienee at the date of her recovery, if in kind, with lawful interest from her suit; but she can not insist that her dower shall be assigned in specie, .nor can she refuse to recive the equivalent annuity, or a gross sum in lieu thereof, the option in this matter being lodged by the statute exclusively with the alienee ; and when, under section 12, the alienee elects to pay an annuity, or a gross sum in lieu thereof, the value of the dower is computed as of the time of the alienation.</p> <p>3. Dower.</p> <p>Where the widow brings her suit in chancery against the alienee, and the prayer of her bill is that “her dower in the said real estate be assigned, set out, and allotted to her, or a gross sum in lieu thereof given her,” and the answer of the alienee denies that the plaintiff is entitled to a sum in gross for her dower-interest, if she has one, and avers, that, if she is entitled to anything at all, she is entitled to one third interest in the realty, which the defendant is willing may be alloted to her, and there is no replication to the answer, it is error in the Court to commute the dower against the wishes and election of the alienee, and to decree to the widow a gross sum, and charge the same as a lien upon the whole of the real estate of 'the husband which had been so aliened in his lifetime.</p>

<p>1. Justice op the Peace — Certiorari—Record.</p> <p>When a writ of certiorari under the statute is awarded to a justice to review his judgment, in order to respond to the exigency of the writ he must certify and send the record as the writ finds it. As the record is when the writ reaches him, so it must be “ certified and sent. It is then too late to make contemplated or intended certificates of facts and bills of exception parts 'of such record, but it must be sent up as it is without increase or diminution.</p> <p>2. Justice op the Peace — Certiorari.</p> <p>The common-law function of the writ (not ancillary) was to remove the civil cause from the inferior to the superior court before judgment, where the superior court had original jurisdiction and could administer the same justice as the court below, and the case was there retained and tried. Under our statute it lies after judgment of the justice; and upon the hearing in the Circuit Court such court will review such judgment of tiie justice upon the merits, determining all questions arisiugon the law and the evidence, and render such judgment or make such order upon the whole matter, as law and justice may require. It may in a proper case, if justice require it, set the verdict of the jury aside and award a new trial, and when the judgment of the justice is set aside, the case is not sent back but must be retained in the Circuit Court, and disposed of as if originally brought therein.</p> <p>8. Justice of thio Peace — Certiorari</p> <p>In applying to the Circuit Court for a writ of certiorari to the judgment of a justice the general rule is that the party must present his petition within ten days after the judgment complained of is rendered according to the analogy of appeals, if the case had been tried without jury.</p> <p>For the facts to which the above rules are applied, and out of which the above points of law arise, see statement of facts in the opinion.</p>

<p>i. FrADÜLENT CONVEYANCES — POSSESSION—SALE.</p> <p>The fact, that the vendor c mtiuues in possession of goods and chattels after an absolute .sale, raises a legal presumption that the sale is fraudulent as to creditors of the vendor, which throws upon the vendee imperatively the burden of proving the fairness and good faith of the transaction ; and this can not be done without sufficient evidence, that the sale was for a fair and valuable consideration, and that the vendor did not continue to have an interest in the property by secret understanding ; and in the absence of all evidence to show such consideratiou, or in absence of all evidence from which the inference can be fairly drawn, that the vendor did not continue to have an interest in the property, the legal presumption that he did, and that the sale was not for such consideration, becomes absolute and conclusive ; and the same will be the conclusion, though there is some evidence on these subjects, if insufficient to rebut the strong legal presumption arising from the vendor’s retention of possession after the sale.</p> <p>2.Fraudulent Conveyances — Deed of Trust.</p> <p>A mortgage of goods and chattels not recorded is void as to creditors of the mortgageor. So is an unrecorded deed of trust.</p> <p>3.Fraudulent ConveyanCes — Mortgage—Chattel Mortgage-Recordation — Deed—Possession—Sale.</p> <p>A deed of absolute sale of goods and chattels is recorded. Another writing, contemporaneous with it, operates to make such deed a mortgage, but it is not recorded. There is no delivery of possession of such goods and chattels. The recordation of such deed, alone, has no effect to render it effective as an absolute sale, nor to make the transaction valid as a mortgage, as to creditors of the grantor in such deed.</p> <p>4.Vendor’s Lien — Possession.</p> <p>A seller of goods has a lien upon them for their price, unless stipulated otherwise, so long as they remain in his possession.</p>

<p>1. Damages — Negligence—Railway Companies — Employe.</p> <p>When a conductor, in charge of a railroad train, with a right to command and to control its movements, leaves his engine and train standing on the track of’the mainline, along which a train due and expected by him has a right at that time to pass, and such conductor fails to use ordinary care to warn or notify in any way the expected train of such obstruction in its way, whereby a collision takes place, and a brakeman on the coming train is injured, and such negligence of the conductor is the direct and proximate cause of such injury, such brakeman being without fault or the means of preventing such negligence or of avoiding its consequences is not the fellow servant of the conductor, and the company will be held responsible for the injury to the brakeman, caused by the negligence of the conductor in such manner, (p. 410.)</p> <p>2. Railroad Companies — Conductor.</p> <p>A yard master, in lawful command and control of a train as a conductor for the occasion, is a conductor within the meaning of the rule. (p. 419.)</p>

<p>1. AnsweR — Burden oe Proof — Declaration — Detinue — Evidence — Pleading—Possession—Practice.</p> <p>In an action of detinue it is necssary for the plaintiff to aver and prove, that he has adequate title to the property with present right of possession in himself; and, secondly, actual possession thereof by the defendant anterior to the bringing of the suit. In his defence the defendant may prove a want of sufficient title to the property in the plaintiff, or he may prove a want of possession in himself. If the plaintiff have proved an anterior possession in the defen” dant, the burden is shifted, and it devolves upon the latter to prove that he has been legally dispossessed.</p> <p>2. Detinue — Evidence—Possession.</p> <p>Where the defendant, having introduced an agreement, from which it appeared that the owner of certain property in controversy had sold the same to him, it was entirely proper to permit him to testify by parol, and against the objection of the plaintiffs, that the said property had never come into his actual possession.</p> <p>3. Detinue — Evidence—Practice.</p> <p>After the taking of the testimony in the case, the defendant demurred to the evidence, and the plaintiffs joined therein, and immediately after such joinder the defendant asked leave to withdraw his said demurrer, to which the plaintiffs objected; but the Court overruled the objection, and allowed the demurrer to be withdrawn. Held, this Court allows to the courts belowa wide latitude of discretion in all such matters of practice arising during the trial of the case below, and, in general, will not review such discretionary action, unless the same has been exercised in a manner plainly arbitrary, or otherwise obviously improper.</p>

<p>1. TURNPIKE —COVENANTS RUNNING WITH THE LAND —EASEMENTS by Prescription.</p> <p>In the year 1830 or 1831 a turnpike company constructed a turnpike road through the lands of W. L., of Jefferson county, then in Virginia, taking rock from quarries on the adjacent lands of said 'W. L. to use in constructing the same; and no proceedings of condemnation appear to have been instituted against the lands of said W. L., although the lands of twenty five others were condemned for the purpose of said road by said company in said county. In July, I860, a letter was received by W. L., from the president of said company, recognizing the right of his tenant, when on his business/to pass the toll gates of said company free ; and said W. L. and his family and servants passed through said toll gates at pleasure, free of toll, until the death of W. L., which occurred on the 26th of August, 1877. By the will of W. L. the land through which said road runs for a mile, and on which W. L. resided, was devised to his son D. B. L., with all the privileges and appurtenances thereto belonging; and said D. B. L. exercised the same privileges, with reference to said road, for eleven years after his father’s death, when toll was demanded of him by the gate keepers on said road. Held, that under the circumstances of this case the law will presume that a contract was made between said W. L. and said company, of such a character as to constitute a covenant running with the land, at the time said road was constructed, for the passage of W. L., his family and tenants, over said road, toll free.</p> <p>2. Turnpikes — Covenants Kunning with the Land —Ease-sients by Prescription.</p> <p>That said W. L., having enjoyed this easement free of toll for forty six years, peaceably, notoriously, adversely, continuously, and uninterruptedly, as a matter of right, he and his family, his servants and his tenants (when on his business) were entitled by prescription to the enjoyment of the same.</p> <p>3. Tubnpikes —Covenants Running with the Land —Easements by Prescription.</p> <p>That his son D. B. L., having enjoyed this easement free of toll, under claim of right, for more than ten years after the death of his father, and having acquired said land as aforesaid, was entitled to the enjoyment of said easement free of toll, and could restrain the collection of the same by injunction.</p>

<p>1.' INJUNCTION — Implication—Dismission.</p> <p>The proposition is generally true that an injunction once granted and perfected brings about a condition or status of persons and things that can only be set at large by a dismissal of the bill, or by formal order of dissolution.</p> <p>2. Injunction — Implication—Deed op Trust.</p> <p>Yet an injunction may be dissolved by necessary implication, as, for example, where the enforcement of a deed of trust is restrained, and the collection of the debt secured enjoined, by the court below, and the appellate court, reversing on that point, decrees the debt secured to be valid and subsisting, and remands the cause with directions to collect under the deed of trust, and apply proceeds in a given order.</p> <p>S. Circuit Court — Injunction—Implication—Supreme Court op Appeals.</p> <p>The Circuit Court can not review or make any alteration in the provisions or requirements of a decree of the appellate court certified back for further proceedings in order to a final decree but such further proceedings may be matter of decision for the first time in the lower court and of review in this Court.</p>

<p>1. Ejectment — Declaration—Pleading.</p> <p>An allegation in a declaration in ejectment that the plaintiff “was possessed in fee” of the land is a sufficient allegation that that the plaintiff claims in fee.'</p> <p>2.Seal.</p> <p>Commonwealth’s grant without seal is invalid.</p> <p>3. Advekse Possession — Dak.</p> <p>To tack different adverse possessions to make up the period of bar the persons holding such possessions must ho connected by privity of title or claim.</p> <p>4. Adverse Possession 'Bar.</p> <p>Adversary possession must he continuous for the period pre- 1 scibed as a bar.</p> <p>5.Adverse Possession — Bar.</p> <p>Where there is no paper giving color of title defining the extent of adversary possession, hut it is only' under claim of title, the possession will be limited to inclosure, clearing, or actual im provement.</p> <p>6. Forpeitube — Title.</p> <p>A person claiming the title to land vested in the State under the second class specified in section 3, Art. XIII, of the constitution need not have had possession.</p> <p>7. Ejectment — Outstanding Title.</p> <p>An outstanding title, which will defeat an action of ejectment must be one that is subsisting and superior at the commencement of tiie action.</p> <p>8. INSTRUCTIONS.</p> <p>It is the right of counsel to submit instructions, and have them passed on by the Court; but where they are submitted after the jury have retired, and the Court refuses to receive them, this Court will not reverse the trial-court, unless it affirmatively appear that it manifestly abused its large discretion in such a matter.</p>

<p>1. Deed — Wiles.</p> <p>A deed executed by a father to liis two daughters upon certain trusts declared on the face of the deed contains the following' clause descriptive of the property conveyed: “First. All his household and kitchen furniture at present at the family residence in the town of L. and on the home-fai m ; all live stock, grain, hay and products of all kinds ; all his farming implements of every description on the home-place or Gabbert land; all debts, claims and rights of recovery which the said grantor then possessed, and any and all other personal estate of any and every description whatsoever.” Held, that this description included all money possessed by the grantor at the time said deed was executed and delivered, and that any subsequent attempt to dispose of the same by will or otherwise would be inoperative.</p> <p>2. Deed — Evidence—Declarations.</p> <p>The declarations of a grantor in a deed in disparagement of his title, if made before he parts with it, are admissible against his grantee, buttho.se made afterwards are inadmissible.</p> <p>3. COMMISSIONER IN Ol-IANCERY.</p> <p>Where questions purely of fact are referred to a commissioner to bo reported upon, the findings of the commissioner, while not as conclusive as the verdict of a jury, will be given great weight and should be sustained, unless it plainly appears that they are not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, where the findings of the commissioner have been approved and sustained by t-lie decree of the inferior court.</p>

<p>cited 70 Va. 517, 526; 1 W. Va. 125 ; 12 W. Va. 699, 706, 797 ; 4 Munf. 273; 9 Leigh 153; 26 W. Va. 659; 1 Bar. Ch’y. Pr. § 62.</p> <p>cited 27 W. Va. 639; 28 W. Va. 715 ; 29 W. Va. 116 ; 81 W. Va. 516; Id. 137; 76 Va. 899 ; 1 Bates Partn. §§ 32, 33; 5 W. Va. 377; 30 W. Va. 555; 21 Gratt. 189; 30 Gratt. 94; 26 W. Va. 659.</p>

<p>1. Vendoe and Vendee — Taxes.</p> <p>Land is sold by executory contract in 1848, and conveyed absolutely in February, 1850, the vendee executing an obligation to pay a debt duo for purchase-money on the land from the vendor, and to sell the land and pay the vendor “one third of the proceeds of said land when realized from any sale or sales thereof.” The lands are not sold for thirty four years. No part of the taxes paid by the vendee are chargeable to the vendor.</p> <p>2. Vendor and Vendee — Costs—Sales.</p> <p>Said obligation of the vendor provides that he shall take upon himself the burden of selling the land, and that in payment of the vendor’s third there is to bo no deduction made from the proportion of said W. (vendor) on account of any expense arising from surveys, or any other expense incident to the sale of said lands. Costs of suits brought by the vendee to clear title, resulting in sustaining the title, are not to be charged to vendor to any extent, especially as it does not appear that the adverse claim existed at the date of sale, or was one for which the vendor, and not the vendee, was responsible. Nor are costs of a suit brought by the vendee’s administrators against his heirs and creditors to settle his estate and sell his lands, among them the land aforesaid, to pay his debts, nor commissions to commissioners for selling-said land under said decree, nor compensation to- a third party by such commissioners made their agent to look after and sell the said land.</p> <p>s. Construction of Contract — Declarations.</p> <p>If a written contract is on its face ambiguous, the surrounding-circumstances, the situation of the parties, and the subject-matter of the contract, and acts done by the parties under it, may be considered as aid in giving it construction, but not the verbal declarations of the parlies.</p>

<p>1. Delinquent and Forfeited Lands — Forfeiture—Taxes— CONSTRUCTION OF STATUTES.</p> <p>By the act of the legislature of the .State of Virginia enacted April 1, 1831, a certain class of lands was forfeited for nonpayment of taxes, called “delinquent lands.” By the act of February 27,1885, a certain other das* of lands was forfeited for non-entry on the proper land-books, called “omitted lands.” After a day given, the forfeiture of the delinquent class of lands became absolute and complete on the-1st October, 1834, and the forfeiture of the class of omitted lands became absolute and complete on the 1st November, 1836; and no inquisition or judicial proceeding or inquest or finding of any kind, was required to consum.mate such forfeiture, (pp. 499, 5'JU.)</p> <p>2. Delinquent and Forfeited Lands-Construction of Statutes —Fohfbiture.</p> <p>The acts of the legislature of Virginia of 30th March, 1837, and 15th March, 1838, and amendments in pari materia, created and provided for putting in operation a proceeding to ascertain and determine what lands were thus forfeited; and an officer called the “Commissioner of Delinquent and Forfeited Lands” was provided for the purpose, whose duty it was to ascertain and report such lands to the circuit superior court of law and chancery for his county, (p. 500.)</p> <p>3. Delinquent and Forfeited Lands — Forfeiture.</p> <p>Such proceeding is a judicial one, in the nature of a proceeding against the land itself; and, when completed by a sale, is 62 •prima .facie evidence of such forfeiture against all persons. And the orders and decrees made therein are conclusive against strangers in all collateral proceedings, (p. 501.)</p> <p>4. Delinquent and Forfeited Lands — Foefeiture—Title.</p> <p>The policy of these laws was to quiet titles as far as possible, and to convoy a good title under these sales as far as the commonwealth had the means of so doing; and, if the ownership of such lands was vested in the commonwealth by reason of forfeiture of one or more titles, such title as the commonwealth thus had passed to the purchaser by the deed of the commissioner of delinquent and and forfeited lands; and he who connects his title with such deed connects it with the commonwealth, so far as the same is valid, and so far as any right or title was in the commonwealth to be conveyed, (p. 504.)</p> <p>5. Ejectment.</p> <p>In an action of ejectment the general rule is that a plaintiff must recover upon the strength of his own title, and not upon the weakness of defendant’s title; for the reason that defendant is not required to give up possession until the trne owner demands it; and the fight to Show in defence a subsisting outstanding title rests upon-the same principle, (p. 509.)</p> <p>6. Ejectment.</p> <p>Before the plaintiff can recover he must identify the land claimed, so far as the exterior boundaries are concerned, (p. 509.)</p> <p>7. Ejectment.'</p> <p>To show payment of taxes is not a sine qua non to plaintiff’s right to recover, unless such payment is one of the elements of his title, (p. 510.)</p> <p>8. Ejectment.</p> <p>The party’s right of ownership or claim of right extends to his outside boundary lines, and is not limited by the number of acres called for. (p. 511.) /</p> <p>9. Possession — Husband and Wife.</p> <p>A husband is in actual possession proper, that is, by sornevisible mark of. ownership, of a part of a tract of land, the sole and separate property of his wife. There being nothing to countervail it, he has thereby constructive actual possession of the residue — that is, actual possession of the tract — on the principle that such possession of a part is possession of the whole, within the purview of the statute of limitations, (p. 512.)</p> <p>10. Possession — PIusband and Wife.</p> <p>The husband in his own right owns or claims, under a colorable title, a contiguous tract wholly unimproved, with no visible mark of ownership upon it. ■ Such actual possession proper, and resulting constructive actual possession of the residue of the laud of the wife, does not, of itself, give the husband actual possession, of either kind, of his own adjoining tract, (p. 513.)</p>

<p>1. Diskd on Trust — Fraud.</p> <p>Where a deed of trust sacares several creditors, and one or more of the debts secured is fictitious and fraudulent, that fact does not invalidate the deed as to bona fulo creditors secured by it not guilty of any fraud.</p> <p>2. Djsiod on Trust— Fraud — Priority on Dkbts.</p> <p>Creditors not secured or not preferred in a deed of trust, who sue to overthrow it or some of the debts therein secured on the ground of their being fraudulent or void, and succeed in overthrowing some of the debts therein secured, are not advanced in priority so as to take rank of the debts overthrown, and get payment out of the property convoyed in preference to bona fide creditors secured or preferred by the deed, but the whole property remains to answer their demands according to the deed.</p>

English, J., makes the following statement of the facts of the case: On the 16th day of June, 1890, H. J. Zouch brought an action of trespass on the case in the Circuit Court of Cabell county against the Chesapeake & Ohio Railway Company, claiming one hundred and seventy five dollars damages by reason of the loss of a certain horse which was delivered to the defendant, as a common carrier, to be safely carried from the city of Huntington to Browns-town, which horse was…

<p>cited 30 Graft. 255 ; 79 V a. 60 ; 40 Am. Rep. 39; 15 W. Va. 444.</p> <p>cited 82 Va. 352 ; 27 W. Va. 215 ; 75 Va. 68 ; 22 Graft. 323 ; 15 W. Va. 479.</p>

<p>1. Specific Performance — Laches—Parol Gift — Part Performance — Improvements—Burden of Proof.</p> <p>The first point in the syllabus of Clay v. DesMns supra#. 860 (6 S. E. Bep. 85) is approved and reaffirmed, as follows : “A party seeking specific performance by a bill in equity must show himself to have been ready, desirous, prompt and eager to perforin the contract on his own part. The unreasonable delay of the purchaser, which will preclude a decree for specific performance in his behalf, is dependent upon the circumstances of the particular case; and, if his conduct has indicated bad faith or a virtual abandonment of the contract, it will deprive him of all just claim to equitable interposition.” Where the plaintiff claims under a parol gift of land, this principle will be still more strictly applied.</p> <p>2. Specific Performance — Improvements.</p> <p>A parol promise to give land to another, accompanied by actual delivery of possession, will be specifically enforced where the promisee induced by such promise has paid the taxes and made valuable improvements with the knowledge of the promisor. But, on the other hand, to sustain a parol gift of land as against the heirs of the donor, there must be clearly shown an executed intent to make the gift, possession taken, taxes paid and improvements made on the faith of such intent.</p> <p>3. Gift — Parent and Child — Evidence.</p> <p>Where a son goes into possession of his father’s land, and makes inexpensive improvements, it is not to be inferred therefrom, in the absence of other evidence, that the father gave the son the land. Neither are loose declarations of the father, without explanation, sufficient evidence of a gift. A contract between a parent and child, from the nature of the relation, requires to be proved by a kind of evidence much stronger than that which might suffice between strangers. The evidence, in case of a parol gift from father to child, should be direct, positive, express and unambiguous, and its terms clearly defined.</p> <p>4. Specific Performance — Gift.</p> <p>If the conduct of the plaintiff has indicated bad faith, or a virtual abandoment of the contract, or a cancellation of the parol gift for a valuable consideration, these circumstances will deprive him of all just claim to equitable interposition.</p> <p>ó. Specific PerfoRmance.</p> <p>The court will look at all the circumstances of the case, and will not decree specific performance unless those circumstances render such a decree just and equitable. The plaintiff has the laboring oar, and the defendants are at liberty to prove any circumstances which tend to show the weakness of his cause and the want of equity in his demand; especially in a ease like the present, where, by their answer, defendants had given full notice of the facts upon which they meant to rely in their defence.</p>

<p>1. INSANITY- BURDKN OR PROOF — WILLS.</p> <p>The presumption of law is that all men are sane until the contrary appears; and the burden of proving insanity is upon the party alleging it, except in the ease of wills.</p> <p>2. INSANITY — SENILE DEMENTIA.</p> <p>Senile dementia is that form of insanity in the old marked by slowness and weakness, indicating the breaking down of the mental powers in advance of bodily decay.</p> <p>8. Insanity--Senile Dementia — .Evidence.</p> <p>The evidence of his neighbors of sound judgment and fair powers of observation, who have known him long- and well, and who have had occasion to observe and test the vigor of his mental faculties, and who can give the facts upon which their impres-W sions and opinions are based, is ordinarily the reliable evidence in such cases.</p> <p>4. Insanity — .Senile Dementia.</p> <p>He must have reason, memory, and will enough to do the act in question freely and intelligently.</p> <p>5. 1 nsanity — Senile Dementia — Can cellation o f Note — Equity-</p> <p>A court of equity has power to decree the delivery up and cancellation of a promissory note given by an old man who is clearly shown to be mentally incapable of transacting such business.</p> <p>6. A case in which this doctrine is applied.</p>

<p>1. Contract — Set-Oit.</p> <p>A firm contracts with a lumber company on the 1st day of May, 1879, to deliver on the banks of a certain stream, secure from high water, and at a convenient place to/roll into the same, and below a certain milldam, from two to five hundred thousand feet of black walnut timber, to be of certain specified dimensions, and said lumber company agrees to pay therefor twelve dollars and fifty cents per M., and, to scale up and pay for same when four or five hundred dollars’ worth shall have been hauled in, and it shall be notified thereof; two hundred dollars of which purchase-money was paid down, and three hundred dollars by check in thirty days thereafter. The said lumber company, having received no portion of said timber, brought an action of assumpsit to recover the five hundred dollars so paid from said firm, which claim said firm seeks to set off by filing a claim for nine thousand feet of walnut lumber at the contract price of twelve dollars and fifty cents per M., aggregating one hundred and twelve dollars and fifty cents. Held: 1. The law requires, as a condition precedent to the recovery of said sét-off, a compliance with the terms of said agreement, not only as to the time and place of delivery, but as to the dimensions and quality of the lumber ; and the court should so instruct the jury, if required.</p> <p>2. Contract.</p> <p>As to the time of delivery, the law supposes, in the absence of evidence to the contrary, a reasonable time, unless a definite time is fixed by agreement; but, if a definite time was set, this is of the essence of the contract, as between the parties.</p> <p>3. Contract.</p> <p>Where the quantity to be delivered is fixed by the agreement the seller must deliver just what he bargained to deliver — no more and no less ; and in general the seller has no right to deliver a quantity in excess of that ordered.</p> <p>4. Contract.</p> <p>If the quantity delivered is less than that sold, it may be refused by the purchaser; and if the contract be for a specified quantity, to be delivered in parcels from time to time, the purchaser may return the parcels first received, if the latter deliveries be not made, as the contract is not performed by the vendor’s delivery of less than the whole quantity sold.</p>

<p>1. Executor — Lien—Execution.</p> <p>A conditional decree, directing an executor to pay certain debts due by his testator’s estate, or due from him in liis fiduciary capacity, when he shall have collected certain other specified claims or debts coming to his testator’s estate, constitutes no lien upon the real estate of such executor. Neither could execution be issued thereon and enforced against him without further proceedings in the cause wherein such decree has been rendered ; nor will a bill in chancery be maintained to enforce the lien of such decree against the real estate of such executor.</p> <p>2. Demurrer — Bill in Chancery — Equity Pleading.</p> <p>Where a bill in equity sets forth various claims by distinct and separate paragraphs, and the defendant files a general demurrer, such demurrer will be overruled if any of the claims be proper for the jurisdiction and cognizance of the court in that form of proceeding; but when there is a demurrer to the whole bill, and also specifically to each of the several claims set out therein, and a part of those claims so demurred to are of such a character as to. authorize no relief in such a suit, the court should sustain the demurrer in part, and should dismiss so much of the bill as seeks relief in reference to matters' adjudged bad, and overrule the demurrer as to the residue, and give a rule against the defendant to answer the bill as to such residue.</p>

<p>cited 1-Dan. Gh’y PI. & Pr. (5th. Ed.) § 748; 6 Paige 654; 1 Paige 422; 24 ~W. Va. 130; Id. 411; 13 W. Va. 29 ; 24 W. Va. 405 ; 32 W. Va. 447; 24 W. Va. 199; 29 Wi Va. 441; Schou. Dorn. Pel. § 155 ; 32 W. Va. 203; 27 W. Va. 393; 21 W. Va. 220 ; o r-i xO CO • »s rH CD & C* • hi w {g i — ‘ CD to o CD o . Q <3 to to -3 <1 to 07 CO CD * C j CO m to • -3 § ^ <1 to to > £ xo 07 <1 CO i — ! 07 o3 > ^ • GG co fcÓ ^ o oo ^ 03 • CO</p> <p>cited 26 W. Ya. 488; 1 Sto. Eq. Jur. § 547 ; Code, e. 86, .s. 7; 30 W. Ya. 198 ; 11 W. Ya. 127 ; Code, c. 74, s. 2 ; 10 W. Ya. 87 ; 11 Ga. 405-411; 25 W. Ya. 242; 3 Johns. Cli’y 481; 6 W. Ya. 702 ; 3 Rand, 504; 6 W. Ya. 168, 172, 177, 178 ; 44 Barb. 166 ; 13 How. (U. S.) 345; 14 W. Ya. 264; 8 Wheat. 229 ; 24 W. Va. 541, 542; 21 W Ya 220 ; 27 W. Ya. 393; 25 W. Ya. 423; 9 W. Ya. 524;</p>

<p>1. Sale — Commissioner in Chanceby.</p> <p>Where commissioners appointed under a decree to make a partition between two part owners of a tract of land report sucli real estate as partitionablc, and divide the same between said parties by actual survey, as shown by a plat returned with their report showing the number of acres to which the parties are respectively entitled, said parties may, by consent-decree, without awaiting the confirmation of said report of partiton, agree that said land may bo sold by commissioners appointed by decree of the court as an entire tract, or in separate tracts, as described in said plat and report; and if at such sale, made under such consent-decree, the land that had been allotted to W. in said report (against whose interest liens to the amount of its value exist) is purchased by C., against whose parcel no liens exist, the court may confirm said sale to C. without awaiting the sale of the entire tract; and if the court subsequently, on motion, confirms said partition as to the parcel allotted to 0., it will not be regarded as error, and W., by bis laches and acquiescence in the action of said commissioners, is estopped from objecting, (p. 607.)</p> <p>2. Sale — COMMISSIONER in Chancery.</p> <p>In sales made by commissioners under decrees and orders of a court of equity, the purchaser who bids off the property, and pays the deposit in good faith, is considered as having acquired inchoate rights which entitle him to a hearing upon the question whether the sale shall be set aside, (p. 610.)</p> <p>3. Sale — Commissioner in Chancery — Inadequacy oe Price-Evidence.</p> <p>A sale may be set aside before confirmation for gross inadequacy of price, but, if it be attempted to establish this by parol evidence only, the proof must be very clear, especially if a great length of time elapsed between the sale and its confirmation, and during this time no advance bid has been made to the court, (p. 610.)</p> <p>4. Sale — Commissioner in Chancery.</p> <p>Where special commissioners are appointed under a decree of court to make sale of lands, and an unusual delay occurs on the part of such commissioners in carrying out said decree, and making their report, the court will ordinarily award a rule against such commissioners, requiring them to account for the delay, before removing them and appointing other commissioners to execute the decree, (p. 610.)</p>

<p>1. Sheriee — Affidavit—Sale—Redemption—Demurrer.</p> <p>When a sheriff appends to his list of lands sold for non-payment of taxes the affidavit — “that I ana not directly interested in the purchase of any of said real estate” — instead of the affidavit required by statute (Code, c. 31, s. 13) — “that I am not now nor have I at any time been directly or indirectly interested in the purchase of any of said real estate” — such sale is absolutely void (Code, c. 31, s. 9); and if after the expiration of the year to redeem, but before the purchaser has obtained his deed, the owner of the land offers to redeem, and the purchaser refuses and afterwards obtains a deed from the clerk, a bill brought to set aside said tax-deed alleging the above facts and accompanied with the necessary money is good on demurrer, (p. 623.)</p> <p>2. DEMURRER — PRACTICE—ANSWER.</p> <p>On overruling the demurrer in such a case the court should not at once decree against defendant'as upon a bill taken for confessed, but should award a rule to answer, which rule however need not be served, (p. 634.)</p>

<p>COMPROMISE.</p> <p>Case wherein a compromise is held to bar further demand.</p>

<p>1. DBASE — BREACH—WAIVER—FORFEITURE.</p> <p>Where in an oil lease there is a clause of forfeiture for nonpayment of rental, but the lessor consents that it need not be paid at the times when due and indulges the lessee and acquiesces in his failure to pay, there is no forfeiture for nonpayment.</p> <p>2. Lease — Bbeacii—-Waiver—Forfeiture.</p> <p>In case of such a lease, if the lessor by his conduct clearly indicates, that payment will not be demanded when due, and thus lulls the lessee into a feeling of security and throws him off his guard, and because of this lie does not make payments when due, the landlord can not suddenly without demand or notice declare a forfeiture, and there is no forfeiture which equity would recognize, and, if there is in such case technically a forfeiture at law, equity would relieve against it.</p> <p>3.Lease — Breach—Waiver—Forfeiture.</p> <p>If, after such rental has accrued and is not paid, whereby a forfeiture exists, the lessor with knowledge thereof receives the rentals accruing after forfeiture, he waives and can not enforce the forfeiture.</p>

<p>cited 29 W. Va. 452; Bumf. Fraud. Con. 56; 29 W. Va. 622; BO W. Va. 563; 32 W. Va. 240; 33 W. Va. 402; 34 W. Va. 95; Id. 697 ; Bump. Fraad. Con. 273-276, 280, 285 ; 24 W. Va. 730 ; 17 W. Va. 773 ; Bump. Fraud. Con. 31-34, 40, 44, 51, 53, 291,295 ; 27 W. Va. 209.</p> <p>cited 1 Tuck. s. p. 167, 168 ; 2 Min. Inst. 197 ; Wash. Eas. &'Serv. s. p. 517 ; 1 Perry Trusts 10, 427.</p>

cited 188 Mass. 498; 2 Greenl. Ev. § 86 ; 5 Midi. 305 ; 1 Den. 574;' 43 Ind. 38; 27 Ohio St. 563; 12 Ind. 18; 22 W. Ya. 800. cited the following authorities: 1 — On Admission of evidence, tending to prooe more than one sale. ■ 20 W. Ya. 672; 2 Ya. Oas. 26 ; 1 Gratt. 553; 31 W. Va. 162; 26 W. Ya. 153; 22' Ytf 74;' 57 Ind. 76; 60 N. Y. 559; 23 Yt. 14; 57 Yt. 637; 58 Hun. 607’; 2 Whar. Or. Law (8th Ed.) § 1525 ; Wliar. Or.

The court erred : 1st. — In giving plaintiff’s instruction to the jury. See 16 W. Ya. 428. 2nd. — In refusing to give defendant’s instruction to the jury. See 16 W. Va. 428; 26 Gratt. 752; 32 Gratt. 727; 15 Ohio St. 446; 18 Am. St. 903; 13 Am. Dec. 517; 37 Am. Dec. 490; 19 Am. Dec. 201; 17 Am. Dec. 680; 26 Am.

<p>1. REVERSAL — Record—Appellate Court — Practice.</p> <p>Where an appellant complains of a decree of the Circuit Court and asks for a reversal, he must present such a record as will make it manifest — first, that error has been committed; and, secondly, that he lias been injured thereby.</p> <p>2. Reversal — Record—Appellate Court — Practice.</p> <p>Where, upon consideration of the bill, answer and other pleadings in connection with the report of a commissioner in chancery an error becomes apparent, the Circuit Court may correct it on motion without an exception or may recommit for further investigation ; -but when the objection is for the first time raised 87 in this Court, and the matter is one "which may be affected by extraneous testimony, ordinarily this Court will not interfere.</p>

<p>1. Misdemeanors — Involuntary Manslaughter.</p> <p>Involuntary manslaughter is a misdemeanor under the Code of West Virginia and imnishable, at the discretion of the Court, by fíne or imprisonment in jail, either or both.</p> <p>2. MisdemeaNOR — Discretion or1 Court.</p> <p>A misdemeanor, where no statute fixes the punishment, is punished by flue or imprisonment in jail, or both, at the discretion of the court.</p>

<p>1. JURY.</p> <p>The list of persons for jury service and the ballots of the names thereon prepared by the jury commissioners annually, at the levy term of the County Court, pursuant to chapter 116, Code 1891, take the place of and supplant lists and ballots made prior thereto, and ballots belonging to a former list are not to mingle in the box used for keeping jury ballots, from which jurors are drawn, with ballots belonging to the later list. Hence, ajurymadeup of jurors as drawn from such box, containing exclusively ballots belonging to the last annual list, is proper and valid. This does not refer to a list made subsequently to the making of such annual list in any year under order of court, (p. 691.)</p> <p>2. Evidence — Blood Stains.</p> <p>A witness may give his opinion that stains seen by him are blood stains, and that a certain large stain seen by him upon bed-clothing was the stain of a pool of blood, (p. 693.)</p> <p>3. Evidence.</p> <p>A witness may give his opinion that a depression in a bed was, from its shape and appearance, caused by the head of a person, he having seen and examined it. (p. 691.)</p> <p>4. Evidence.</p> <p>Opinion evidence discussed, (p. 691.)</p> <p>5. Evidence.</p> <p>A statement'made by a person accused of crime upon the occasion of the preliminary examination before a justice, when he was not sworn or examined as a witness, is not inadmissible by reason of section 20, c. 152, Code 1891. (p 697.)</p> <p>6. Murder.</p> <p>A man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act; and if the prisoner, with a deadly weapon in his possession, without any, or upon very slight provocation, gives to another a mortal wound, the prisener is prima facie guilty of willful, deliberate, and premeditated killing; and the necessity rests upon him of showing extenuating circumstances; and unless he proves such extenuating circumstances, or they appear from the ease made by the State, he is guilty of murder in the first degree, (p. 701.)</p> <p>7. MURDER — New Triaj>-Degree is for Jury.</p> <p>The question whether a particular homicide is murder in the flrst or second degree is one of fact for the jury. Where a jury has found the case to be one of murder in the first degree, as in other cases, the court should not disturb the verdict, unless the finding of murder in the first degree be plainly and manifestly contrary to or without sufficient evidence, (p. 703.)</p>

<p>1 JURY — CONSTRUCTION Olí' STATUTES.</p> <p>The exposition of the act of the legislature passed on the 27th of February, 1891, iu relation to petit juries, and embraced in the Code (1891) as ehapser 116, p. 773, and to be found in the Acts of 1891 as chapter 42, p. 92, made by this Court in the ease of State v. Mounts, supra, p. 179 (14S. E. R. 407) is approved and reaffirmed.</p> <p>2. Jury — Construction op Statutes.</p> <p>In construing a statute we are not at liberty, where the language is free from ambiguity, to substitute one word for another, and thereby change and reverse the express language of the act; yet it is a settled rule of construction to construe words used by the legislature in such manner as will advance the intention, prevent inconvenience, and avoid conflict with settled policy.</p> <p>3. Jury — Construction op Statutes — Vacancy.</p> <p>The word “vacancy,” where used in a statute, does not necessarily presuppose a former incumbent of an office. It fitly and aptly describes the condition of an office newly created, and never filled by any previous incumbent.</p> <p>4. JURY — COMMISSIONERS—CONSTRUCTION OE STATUTES — VACANCY.</p> <p>Under the jury law above mentioned, and professing to act in pursuance thereof, the Circuit Court of Cabell county appointed jury-commissioners on the 10th of June, 1891, but the order specifically set out that the terms of the respective appointees should correspond with the unexpired terms commencing June 1,1891. This appointment will be construed as intended to fill a vacancy, andas in conformity to and fully authorized by the jury act; and the commissioners so appointed were legitimately in office during the said unexpirod terms, and their acts are entitled to full faith and credit.</p> <p>5. Jury — Reveesal—MubdeR—New Trial.</p> <p>Where the evidence sufficiently tends to show that the prisoner induced a chance quarrel, and concluded it by advancing upon his adversary and striking him a mortal blow with a deadly weapon, with which he had not previously armed himself, it is for the jury to decide upon the character of the provocation, and whether the offence is manslaughter or murder in the second degree ; and, if the record does not disclose any improper instruction upon the subject, which we can review, we will not reverse the decision of the Circuit Court overruling a motion to set aside the verdict, and grant a new trial.</p>

<p>1. Indictment — Intoxicating Liquoes — Minoe.</p> <p>An indictment under section 16, c. 82, Code 1887, against a person having a license to sell spirituous liquors for a sale to a minor need not specify the particular place, where the sale was made, or allege, that the place, where the sale was made, was the place designated in the license as the place, at which the license was to be exercised.</p> <p>2. Indictment.</p> <p>Form of indictment No. 646, in Hutchinson’s Treatise for Justices, held good.</p> <p>3. Indictment.</p> <p>It is generally sufficient, in an indictment to allege a statutory offence in the language of the statute.</p>

cited the following authorities: 1. — The duty of the commissioner to assess the lots as such. — ■ Const. Art. X., s. 1; 19 W. Ya. 408; Acts 1891, p. 61. 2. — Can the Commissioner to assess land be compelled by mandamus to value it as directed by statute?- — -54 111. 39; 2 Dill. Mun. Corp. § 832; 24 W. Ya. 385; 12 Pet. 526; 2 Mon. 243;,High Ex. Leg.

<p>1. MURDER — SEPARATION OE JURY — NBW TRIAL — BURDEN OE PROOE —CrimiNal Proceedings.</p> <p>A. mere separation of a jury will not entitle the person to a new trial; but where there has been an improper separation of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of the presumption that such separation has been prejudicial to him, and the burden of proof is upon the State to show beyond a reasonable doubt that the prisoner has suffered no injury by reason of the separation. If the prosecution fails to do this, the verdict will be set aside.</p> <p>2. Murder — Separation oe Jury — New Trial — Burden oe Prooe —Criminal Proceedings.</p> <p>The same rule should be applied to all cases of misconduct or irregularity by the jury during the trial which are of such a character as to raise a presumption that the prisoner was prejudiced thereby.</p> <p>3. Murder — Separation oe Jury — New Trial — Burden of Proof —Criminal Ptocbedings.</p> <p>The testimony of jurors may be received to disprove or explain any such separation, misconduct, or irregularity; but their testimony will not be received to show by what motive they were actuated, or that any admitted fact, misconduct, or irregularity had no influence or effect upon their minds in producing the verdict. In any ease, where proper at all, the testimony of jurors should be received with great caution.</p> <p>4. Murder — Separation of Jury — New Trial — Burden of Proof —Criminal Proceedings.</p> <p>Mere business conversation by a juror with another person, entirely foreign to the case on trial, in the presence and hearing of the sheriff and other jurors, will not avoid the verdict.</p> <p>5. Murder — New Trial — Criminal Proceedings.</p> <p>A new trial will not be granted in a criminal case for matter that is a principal cause of challenge to a juror, which existed before he was elected and sworn as a juror, but which was unknown to the prisoner until after the verdict, and which could not have been discovered by the exercise of ordinary diligence, unless it appear from the whole case that the prisoner suffered injustice from the fact that such juror served in the case. In determining this the court should look only to the evidence touching such cause of challenge; not to the evidence on the trial as to the prisoner’s guilt.</p> <p>6. Murder — New Trial.</p> <p>To set aside a verdict because of an opinion entertained by a • juror before he was sworn, it ought to appear that such opinion was not merely unsubstantial and hypothetical, but such as would have excluded him from the jury had it been known before he was sworn.</p> <p>7. Murder — Continuance—Reversal.</p> <p>A motion for continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and, though an appellate court will supervise the action of an inferior court on such motion, it will not reverse the judgment on that ground,' unless such action was plainly erroneous.</p> <p>8. Muedee — -Continuance—Affidavit.</p> <p>Where a continuance is asked to procure the evidence of a witness not resident in the State, the affidavit should state not only the bona fide belief that such evidence can be procured, but the grounds of such belief, in order that the court may see that the belief is not merely a hope, but a well-founded, reasonable expectation, that it will be procured.</p> <p>. 9. Muedee — Insanity—Lunatic—De Lunático Inqdibendo.</p> <p>The court must see reasonable ground to doubt the sanity of a person about to be tried for felony before empanelling a jury to inquire as to his sanity. The court may inspect and examine the prisoner, consider his action and demeanor, read affidavits, inquire of physicians and others touching his then mental condition. The decision of the trial-court will have a very weighty, if not conclusive, influence in the appellate court, and will not be reversed, if at all, unless it very manifestly appears that the decision was wrong, or that the court abused the discretion lodged with it by the statute.</p> <p>10. Muedee — Insanity—Lunatic.</p> <p>A person partially insane is yet responsible for a criminal act if at the time of the act he knows right from wrong, and knows the nature and character of the particular act and its consequences, and knows that it is wrong, and is hurtful to another, and deserves punishment. In such case no mere irresistible impulse to do the act will exempt him from criminal responsibility for such act.</p>

Statement of the case by Holt, Judge: On the 23rd day of April, 1892, in the Circuit Court of Ohio county, the prisoner, William Maier,… Held: ‘A court is not bound to hear evidence of the insanity of a man’s relatives * * * as grounds of a presumption of possible insanity, until, some evidence has been given that the prisoner himself has shown signs of his own insanity.’ Now, the pi’isoner in this case did not claim in his affidavit that his insanity was hereditary, but…

<p>1. Attorney-at-Law — Lien.</p> <p>When an attorney is employed by his client to institute pro-eeedings.in equity to subject land to the payment of debts and liens and obtains a decree directing a sale for'the satisfaction of the same, and the debtor compromises and pays off the claims asserted against him, the attorney for the plaintiff has no lien against the land of said defendant which would entitle him to a sale of defendant’s land.</p> <p>2. Attobney-at-Law — Lien.</p> <p>An attorney-at-law has no lien on land for prosecuting a suit to subject it to a debt or claim.</p>

<p>cited 5 El. & Bl. 772 ; 159, S. E. Bep. 408; Ben. Sales § 108; 6 Taunt. 822; 4 M. & W. 687; 11 M. & W. 243; 9 B. I. 53; 32 la. 165 ; 80 Ill. 553; 18 Pa. St. 52; 62 Pa. St. 9 ; 2 Berg. & B. 170; 1 McC. 189; 1 Har. & G. 308.</p> <p>cited 15 S. E. Bep. 408; 16 W. Ya. 428 ; 28 W. Ya. 1; 27 W. Ya. 27; 27 Midi. 324; 15 Gratt. 434; 7 Gratt. 240.</p>

<p>1. CONSTITUTIONAL LAW — AMENDATORY ACTS.</p> <p>When the title of an original act of the legislature sufficiently expresses its object in the manner required by the constitution, an act amendatory thereof may, by its title, simply refer to the section of the original act which it is intended to amend, and this will be a sufficient compliance with section 30 of article 6 of the constitution.</p> <p>2. Mandamus — Teachers—Officers and Offices.</p> <p>The occupation of a teacher of a free school in this State is not a public office, but an employment; and such teacher can not be compelled by mandcCmus on the petition of a publisher to use such publisher’s books in the teaching, although their use may be prescribed by section 58, c. 103, Acts 1891.</p>

cited the following authorities: 1. — Attachment Statutes strictly construed. — 21 ~W\ Va. 211 ; 22 W. Va. 645; 26 W. Va.' 322 ; 7 Laws, R. R, & P. § 8498; Dr. Attach. § 83 et seq.; 25 W. Va. 414. . 2. — Entry on record after adjournment of term as to a final judgment no part of record. — 35 W. Va. 439; 3 W. Va. 391 4 W. Va. 305; 15 W. Va. 604; 1 Am. & Eng. Ency. Law 183.

<p>cited 23 W. Ya. 197; 25 ~W. Ya. 288, p’t 3 Syll.; Id. 560, 564; 26 W. Ya. 225 ; 32 W. Ya. 25, 30; 2 Min. Inst. (Ed. 1878) 994; Id. 1017 5c.; 29 W. Ya. 23; Code (1891) e. 66; 14 W. Ya. 322; Id. 332; 22 W. Ya. 404, Syll. p’ts 1, 4; Id. 412, 417 ; 29 W. Ya. 504; 19 W. Ya. 366; 18 W. Ya. 103; Min. Inst. 811; 1 Lom. Dig. 63 ; 25 W. Ya. 815; 30 W. Ya. 505.</p> <p>cited Code (1868)' c. 66; 14 W. Ya. 322.</p>

<p>1. Constitutional Law--“Scrip” Act — Laborers’ Wages - “Screening” Act--Weighing and Measuring Coal.</p> <p>On the 7th day of March, 1891, the legislature passed an act prohibiting any corporation, company, firm or person engaged in any trade or business, either directly or indirectly, to issue, sell, give or deliver to any person employed by such, corporation, company, firm or person, in payment of wages due such laborer, or as advances for labor not due, any scrip, token, draft, check or other evidence of indebtedness payable or redeemable otherwise than in lawful money; and, if any such scrip, token, draft, check or other evidence of indebtedness be so issued, sold, given or delivered to such laborer, it shall be construed, taken and held in all courts and places to be a promise to pay the sum specified therein in lawful money by the corporation, company, Arm or person issuing, selling, giving or delivering the same to the person named therein or to the holder thereof; and providing, further, that a violation of this section on the part of such corporation, etc., shall be a misdemeanor punishable by fine and imprisonment. And on the 9th day of March, 1891, the legislature passed another act for weighing and measuring coal at the place where mined, before the same is screened, which provided that all coal mined and paid for by weight shall be weighed in the car in which it is removed from the mine, before it is screened, and shall be paid for according to the weight so ascertained, at such price per ton as may be agreed on by such owner or operator and the miners who mined the same ; and coal mined and paid for by measure shall be paid for according to the number of bushels marked upon each car in which it is removed from the mine, and before it is screened, and the price paid for each bushel so ascertained shall be such as may be agreed on as aforesaid ; and provided, further, that a violation of the act by any corporation, etc., should be a misdemeanor punishable by fine aud imprisonment. Held, that neither of these acts is in violation of the constitution of this State, nor that of the United States, but that both acts, when applied to the facts of this case, are within the scope of legislative authority.</p> <p>2. CONSTRUCTION OK STATUTES.</p> <p>The principles of constitutional and statutory construction laid down by this Court in Osburn v. Stealey, 5 W. Va. 85; Slack v. Jacob, 8 W. Va. 012; and State v. Workman, 35 W. Va. 367 (14 S. E. Eep. 9) — approved and reaffirmed.</p> <p>3. INDICTMENT.</p> <p>In this State the defendant can not be permitted to frame the indictment under which lie is to be prosecuted for an alleged violation of law.</p>