Volume 37 — West Virginia Reports

<p>I. — Construction of s. 16, c. 32 of the Code (1887). — -34 W. Va. 84; Suth. Stat. Con. § 46, n. 4; 41 Kan. 200; 26 Kan. 731.</p> <p>II. — Journals are records and can not be attacked by oral evidence. — Suth. Stat. Con. § 44; 77 Ill. 12; 32 Ark. 496; Cool. Con. Lim. 135; 71 Mo. 266; 98 Ill. 156; 5 Col. 525; 28 Kan. 243;' 55 Mich. 94.</p>

cited 22 W. Va. 850; 82 W. Va, 507; 33 W. Va. 449. I. — The proper order in which claims upon lands should, he charged. — .27 Gratt. 479 ; 27 W. Va. 663; 31 W. Va. 156 ; 30 W. Va. 443. IT. — A party claiming under a deed is bound by the general character of the consideration stated, in the deed. — 70 Md. 272; 41 Md. 402; Waite'Fr. Conv, §221; Bump. Fraud.-Conv. 598;' 1 Greenl. .Ev. § 275 ; 64 Md. 583; 1 II. & J. 175.

<p>cited 9 W. Va. 683; 29 Gratt. 240; Whar. Ev. § 482; 1 Am. Lead. Cas. 711; 2 Kent (s. p.) 430, n. (f); IT. S. Digest (1846) 102, Div’. 6, 8-10, 13, 14; 1 Shep. Touch. 323.</p> <p>cited 9 W. Va. 626-630; 21 W. Va. 324; 15 W. Va. 87-89; 95 U. S. Rep. 633; 76 Am. Dec. 287, 758; 3 Pet. 290; 20 Gratt. 222-226 ; 4 W. Va. 536; Id. 538; 12 W. Va. 757; 30 Gratt. 718; 4 Munf. 398; Drake Att. § 65; 33 Gratt. 180; 3 W. Va. 405; 43 Am. Dec. 586; 3 Am. Dec. 444, 445 ; 1 Patt. & H. 34; 1 Sto. Eq. Juris. § 498; 11 Leigh 390.</p>

<p>cited 17 G-ratt. '503; 2 Lind. Part. 513.</p> <p>cited 30 W. Ya. 780; 28 W. Ya. 378; 26 W. Ya. 710 ’; 21 W. Ya. 698.</p>

I. — This appeal lies from an order setting'aside a verdict, without^uwaitinc/ a new trial. — Code, c. 145, s. 1, ¶\9 ; 32 W. Ya. 487. II. — An order atoar ding a new trial will be reversed, unless it. appears that the verdict toas plainly not 'warranted. — 32 W. Va. 487 ; 26 W. Ya. 338. III.— The Verdict is warranted by the evidence. (1.) The burden is on contestees. — 20 W. Va. 259; 31 W. Va. 659; 85 Va. 546; 47 Barb. 232; 25 JST. Y. 34-5 ; 21 W. Va. 63.

<p>1. Tkukts and Trustees-Commissioners— Sales — Intkrest—Re-ceiver. ,</p> <p>It is the practice in this State to treat trustees, special commissioners and others empowered or directed to sell as special re- ■ ceivers of the proceeds of sale. ■ In such cases, except under special circumstances, such trustees and commissioners to sell arc not chargeable with interest on the proceeds of sale.</p> <p>2. Trusts and Trustees — Commissioners—Hale—Interest—Receiver.</p> <p>A receiver, general or special, as the law now is in this State, has no authority to invest or loan out at interest any such fund in his hands, unless ordered by the court,so to do.</p> <p>3. Trusts and Trustees — Commissioners—Sales—Interest—Receiver.</p> <p>When such trustee, as in this case, is by injunction restrained from disbursing or paying out such fund until the future order of the court, and he answers that “he has the fund in hand ready to disburse according to the trust-deed, or as the court may direct,” if the parties in interest desire it to be paid into the hands of the general receiver, they must so move; and the trustee, who does not appear to have received interest or other profit on it, will not be chargeable with interest because he did not of his own motion cause it to be turned over to the general receiver.</p> <p>4. Tbusts and Trustees— Commissioners — Sames— Interest — Receiver.</p> <p>The general rule is that if trustees bring suits against strangers, or strangers bring suits against the trustees, respecting the trust-funds, costs will be awarded against the losing party as in other suits. If such trustees are comjielled to pay costs, the amount so paid, including proper attorney’s fees, wilI be allowed to them in their accounts, if the litigation was just and proper.</p> <p>5. Trusts and Trustees — Costo—Cestui que Trusts.</p> <p>In the case of suits between the cestui que, trust and the trustees in relation to the trust-fund, the general rule that guides rather than governs a court of equity is, that trustees shall have then-costs either out of the trust-fund, or from the cestui que trust, personally, who may be found to be in fault; and this rule applies whether the trustees be plaintiffs or defendants.</p> <p>0.</p> <p>Trusts and Trustees- Costs — Cestui que Trust.</p> <p>A trustee, defendant, resisting the plaintiff’s claim, and failing iu his defence, wtll not bo permitted to - charge against the fund money expended in attorneys’ fees, unless it appears that such defence was reasonable and proper.</p> <p>7. Trusts and Trustees — Costs—Cestui que Trust.</p> <p>In such suits a court of equity has a wide discretion in awarding costs.</p>

<p>1. CORPORATIONS -- Foreclosure — Ultra Vires — Contract — Aoea't — Seal.</p> <p>Where a bill is filed by a party representing himself to be a mortgagee of real estate, for the purpose of enforcing a mortgage which purports to have been regularly signed, sealed and acknowledged by the president and treasurer of a corporation chartered under the laws of the Htate of New York, which real estate is situated in this State, objection to the validity of said mortgage can not be made by the company on the ground that it is ultra vires, but must be made by a stockholder or by stockholders of said company, (p. 84.)</p> <p>2. Corporations — Seal—Contract --Agent.</p> <p>If a deed or contract purport to be sealed with the seal of a corporation, and it is proven to he signed by the proper agents of the corporation, the presumption is that tlie seal was regularly affixed by the proper authority ; and a contract under seal, executed by an agent within the scope of his appointed power, will be held valid and binding upon tlie corporation until evidence to tlie contrary lias been introduced, (p. 90, 91.)</p> <p>3. Corporations — Stockholders—Laches.</p> <p>While a minority of the stockholders of a corporation may maintain a bill in equity, in behalf of themselves and other stockholders, for fraud, conspiracy, or acts ultra vires, against a corporation, it's officers, or others who participated therein, when the minority stockholders have been injured by said act, they must act promptly and not wait an unreasonable time. If they postpone their complaint for an unreasonable time, they forfeit their right to equitable relief. Nothing will call a court of equity into activity but conscience, good faith and reasonable diligence. When these are wanting, the court is passive and does nothing. (p. 86, 88.)</p> <p>4. CORPORATIONS — STOCKHOLDERS—Laches—CONTRACT.</p> <p>Where a stockholder has notice or the means at hand of becoming acquainted with the contracts made by the corporation in which he is such stockholder, a court of equity will not allow him to remain quiet an unreasonable length of time, with a view of ascertaining whether the contract will result in profit to him, and then repudiate the contract if it has resulted in loss. (p. 91.)</p>

T. — Court erred in overruling defendant’s demurrer to original and. amended bills. — 34 Wis. 450; 2 High Inj. § 1248: 7 Paige 261; 35 W. Va. 433. Held: -proper remedy, if Railroad, Company were to build or gra.de. a highway. — 2 W. R. 378; 1 Sawy. 470; 99 Mass. 285; 10 Am. & Eng. Ency. L. 789-791 and notes. IY. — Printed volume of ord.incme.es of city admissible as evidence. — Acts (1889) p. 16, s. 15; 35 W. Ya. 217, 218. Y. — Railroad.

<p>eited74 N. Y. 302; Code s. 50 c. 54; Code s. 45, c. 43; 58 N. Y.' 165; 38 N. Y. 433 ; 24 W. Ya. 809; 6 W. Ya. 476 ; 31 Ohio St. 338; 54 Md. 148; 107 N. Y. 360; 116 Ind. 446; 23 Flo. 546; 46 Md. 425; 67 Ill. 118; 42 la. 234; 52 Midi. 108.</p>

<p>cited 85 Ya. 538.</p> <p>cited 33 W. Ya. 548.</p>

<p>1. Ejectment — Exclusion on Evidence — Practice.</p> <p>I'll an action of ejectment on a motion to exclude all of the plaintiff's evidence the motion should be overruled if any of that evidence tends in an appreciable degree to show in the plaintiff a right to recover the land claimed.</p> <p>2. Ejectment — Admissibility of Evidence — Assessors Hooks— PRACTICE.</p> <p>In such an action the plaintiff introduced in evidence the books of the assessors of the county wherein the land lay, to prove that from 1829 to 1842, inclusive, the land in question was omitted from the land books of said county. The tendency of this evidence was to show that the land was forfeited to the slate, and it should not have been excluded from the jury.</p> <p>3. Ejectment — Admissibility of Evidence — Practice.</p> <p>In November, 1842, the commissioner of delinquent and forfeited lands for Kandolph county sold, among a number of other tracts, a tract of one thousand acres, under the' erroneous impression that it had been forfeited under a patent issued to one Ely. The plaintiff in his said action of ejectment' claimed title through the purchaser at said sale, and introduced evidence tending to show that the land in controversy, when sold and conveyed by said commissioner, was actually forfeited under another title and in a different name. This evidence was pertinent, and should not have been excluded, because, under the Act of March 30,1837, and amendatory acts, under which said commissioner proceeded, his deed conveyed all the interest vested in the commonwealth by forfeiture, no matter in whose name or under what title the land was forfeited.</p>

<p>cited 1 Ya. Cas. 123; 18 W. Y. 482; 25 W. Ya. 429; 30 Gratt. 733.</p> <p>cited 31 W. Va. 790-797.</p>

<p>]. Ejectment — Title.</p> <p>In an action of ejectment, where the plaintiff and defendant derive their title from the same grantor, it is unnecessary that the plaintiff, in making a prima facie case, should trace his title furthur back than to said grantor, (p. 132.)</p> <p>2. Ejectment — Notice.</p> <p>In order that a defendant should be entitled to interpose an equitable defence, such as was attempted, in this case, nptice must be given of such intention in writing, as required by section 22 of chapter 90 of the Code. (p. 133.)</p> <p>3. Tbdsts and Trustees — Delinquent Lands — Sale—Taxes—Title.</p> <p>If a party holding a deed of trust upon a tract of land, to indemnify him as surety, pays the taxes on said tract of land, which is assessed to the grantor in said trust in the district where it is located, and said grantor conveys said land to another party, who has the land placed upon the land-book in a different district from the. one in which it is located, and suffers the same to be returned delinquent and sold for taxes, and the party entitled to the benefit of said trust purchases said land at a trust-sale under said trust-deed, his title so acquired wili not be affected by said delinquent sale and a deed made in pursuance thereof, (p. 133.)</p>

I. — The. earnings of a married woman belong to her husband.- — ■ 12 W. Va. 353; 31 W. Ya. 94. II.— The deeds to the Colemans were sales not advancements. To be an advancement, conveyance must be voluntary. — -110 Ind. 444; 01 Ind. 85 ; 57 Pa. St. 401; 52 Ark. 188. 1. To constitute advancement grantor must divest liim-self of all interest in the property. — 24 Miss. 619; 111 Ind. 163; 5 Yes. 721; 10 Cent. Ilep. 415. 2.

<p>1. MALPRACTICE — EVIDENCE—COMPETENCY OE.</p> <p>In an action against a physician for malpractice a witness testified, that he was “well acquainted with the physical ability of the plaintiff to perform manual labor both before and since the breaking of his arm; that the said plaintiff before the injury was a strong, able-bodied man ; that since he was hurt the plaintiff has been unable to perform more than one half a man’s work; that witness had worked with plaintiff both before the arm was broken and since; that witness and plaintiff were both farmers and lived near together.” This testimony was competent, and ought not to have been excluded, (p. 161.)</p> <p>2. Malpractice — Evidence—Competency oe.</p> <p>The general rule is that, where a party is competent to prove the motives and intentions, which have governed his own conduct,¡he may state in general terms, that he did orrefrained from' doing a particular thing material to the issue on aceountof information received from a third person; but he can not go into details or give conversations with third persons not in the hearing of the opposite party, (p. 162.)</p> <p>3’. Malpractice — Negligence — Contributory Negligence — Physicians.</p> <p>When a physician is employed to attend upon a sick person, his employment continues while the sickness lasts, unless put to an end by the assent of the parties or revoked by the express dismissal of the physician. The physician is bound to bestow such reasonable ordinary care, skill and diligence, as physicians in the same neighborhood in the same general line of practice ordinarily have and exercise in like cases. Time and locality are to be taken into the account, and the physician is bound to exercise the average degree of skill possessed by the profession in such locality. In the absence of special agreement his engagement is to attend the case as long as it requires attention, unless he gives notice of his intention to discontinue his visits or is dismissed as aforesaid ; and he is bound to exercise reasonable and ordinary care and skill in determining when his attendance should cease. But his engagement is not to cure the patient; that is, he does not insure that his treatment will be successful. The mere failure to effect a cure does not even raise a presumption of a want of proper care, skill and diligence. It is the duty of the patient to co-operate with the physician, and'to conform to his prescriptions and directions, and if he neglect to do so, he can not hold the physician responsible for his own neglect. On the other hand, he has a right to rely upon the instructions and directions of his physician and incurs no liability by so doing, (p. 168.)</p> <p>4. Maliuiactick — Estoppel—Physicians .</p> <p>If a physician sue for his services, and there is no appearance by the patient, defendant in that suit, recovery by the former does.not estop the latter from bringinga cross action for malpractice ; but if he appear, unless the record show that it was not to defend, but solely to disclaim the waiver of his own right, he is estopped by the recovery. (Holt, J., dissenting), (p. 173.)</p> <p>5. Malxuíactiüe — Physician—Declabation—Pleading—Aband-onment.</p> <p>A declaration charged that the defendant, after having entered upon the treatment and cure of the plaintiff, “carelessly, negligently and unskillfully conducted himself in that behalf,” etc., and that in consequence of the defendant's “careless, negligent, improper and unskillful attention,” eic., the injury resulted. Under these averments, the plaintiff might receiver for abandonment of his treatment by the physician, (p. 165.)</p>

<p>bited Code (1891) e. 96, s. 7; 21 W. Ya. 247; Code (1891) c. 125, s. 35; 19 W. Ya. 176; Code (1891) c. 96, s. 60.</p> <p>I. — Decrees complained of are not appealable. — Code (1891) c. 135, s. 1; 15 W. Ya. 479 ; 21 W. Ya. 21; 27 W. Ya. 215; 29 W. Ya. 131; Id. 276, 283.</p> <p>II. — Former Practice as to Cross-Bills. — 6 Dan. Cli’y PI. & Pr. 1744 ; Perk. Cli’y (1st Am. Ed.) 31; 10 Paige 319, 322. . '</p> <p>III. — Gross-Bill must be confined to same matters as original bill — 22 W. Ya.70; 14 W. Ya. 637; 23 W.'Ya. 760; 21 W. Ya. 234, 247; 17 W. Ya. 901; Sto. Eq. PI. §§ 389, 631.</p> <p>IY. — New parties can not be brought in by Cross-Bills. — 14 W. Ya. 682 ; 21 W. Ya. 250; 17 IIow. 130, 145; 31 Miss. 332; 48 Miss. 368 ; 61 Miss. 32 ; 54 Ala. 688 ; 50 Miss. 380; 21. J. L. Jour. 171; 1 Tenn. Cli’y 405.</p> <p>Yt. — Defendant may have same relief under answer as filed, as he could have had under Gross-BiU. — Code (1891) c. 125, s. 35; 19 "W. Va. 168, 175 et seq.; 21 W. Va. 234; 6 W. Va. 168; 10 W. Va. 35, 41, 42.</p> <p>VI.' — -Appellant has not been prejudiced and con not appeal.— ' 15 W. Va. 804; 7 W. Va. 32, 52; 53; 30 W. Va. 359 ; 32 W. Va. 567.</p> <p>VII. — State of Pleadings did not justify filing Cross-Bill.- — 11 W. Va. 342.</p> <p>VIII. — Can judgment be attacked for usury, when adequate de-. fence at law? — 19 W. Va. 114, 115 ; 10 Pet. 497; 6 W. Va. 79; 15 W. Va. 434 ; Id. 597 ; 34 W. Va. 672.</p>

<p>1. Railroad Companies — Damages—Burden of Proof — Negligence.</p> <p>In an action of trespass against a railroad company for injuries received at a railroad crossing by reason of the failure of the defendant to give the signal required by statute, in order that the plaintiff should recover, he must not only prove that the defendant failed to give the signal required by statute, but also that such failure was the proximate cause of his injury.</p> <p>2. Railroad Companies —Damages—Negligence —Burden of Proof — Contributory Negligence.</p> <p>Where negligence is the ground of the action it rests upon the plaintiff to trace the fault for his injury to the defendant, and for this purpose he must show the circumstances under which the injury occurred, and if, from these circumstances so proven by the plaintiff, it appears that the fault was mutual, or, in other words, that contributory negligence is fairly imputable tohim, he has, by proving the circumstances, disproved his right to recover and on the plaintiff’s evidence alone the jury should find for the defendant.</p> <p>3. Railroad Companies — Damages — Negligence — Burden of Proof — Contributory Negligence.</p> <p>A traveller on a public road must exercise at least ordinary care and caution. No recovery can be had by the plaintiff where his negligence in any degree contributed to th<5 injury received by colliding with a railroad train at a public crossing, unless the defendant, being aware of the plaintiff’s danger, and having the opportunity to avert it, fails to use ordinary caution to do so.</p>

I. — Burden on -party asserting surrender to prove it. — 7 Hob. Prac. 872, note 165; 86 Am. Dec. 394. II.— Court leans to construction in favor of tenancy from year to year. — 1 Lorn. Dig. p. 192 and note 3 ; 2 Bl. Com. (Book 2) 146 and note 11. III. — Irrelevant instructions. — 10 Gratt. 13; 11 Gratt. 587; 31 W. Ya. 683; 10 Gratt. 236; 26 Gratt. 594; 1 Bart. L. Hr. (2 Ed.) 656 and note 5. IV. — Mere, agreement for increase of rent not a surrender. — 2 Ad.

<p>cited 24 W. Ya. 708; 10 W. Ya. 59 ; 4 Rand. 451; 3 Munf. 29; .Bar. Ch’y Pr. § 84; Sto.'Eq. PI. § 76; 24 W. Ya. 32 ; Code (1891) c. 125, s. 44; Id. s. 30.</p> <p>cited Hill. TV. 317; Sto. Eq. PI. §§ 1268-1275 ; 2 P. Wms. 678 ;„Sto. Eq. IT. § 1353; 10 Am. & Eng. Ency. L. 692 ; Eos. Fed. Pr. 288; 8 Pet. 128 ; Dan. Ch’y PI. 216, 222; Eos. Eed. Pr. § 358; 1 P. Wms. 736; 2 Mimf. 129; 5 Call. 499; 93 D. S. .Rep. 150-154; 26 W. Va. 1; Sto. Eq. Jur. §§ 1287-1289; 1 P. Wms. 704, 705 ; 6 Otto 404 ; 111 IT. S. Rep. 327-334 ; 1 II. & M. 405; 20 Gratt. 484 (Syll.); 28 Am. Dec. 354; 39 Am. Dec. 716, 717 ; 1 II. & M. 110 ; Id. 403 ; 5 Cow. 719 ; 7 Paige 221, 222; 106 U. S. Rep. 265 ; 21 W. Va. 691; 6 Paige 513 ; 25 W. Ya. 609 ;• 60 Am. Dec. 399; 1 Gratt. 310; 1 II. & M. 403.</p>

I. — Pickenpaugh and Reed should, have been placed second in priority. — Code, c. 75, s. 3 ; Code, c. 74, s. 5. II. — They did not lose this right by laches. — Code, e. 133, s. 5; Code, c. 134, s. 6. III. — The bill of reoieto was properly filed for errors; all the necessary parties answered ; and the decree was proper. — 2 Rob. (old) Pr. 415 ; 3 Paige 368; 19 W. Va. 167. IV. — The notice gane, sufficient ground for correcting the errors on motion.

I. — Adverse -possession lies on title utterly void. — 26 W. Ya. 635; Id. 244; 20 W. Ya. 485; 22 W. Ya. 125 ; 5 Gratt. 110. ■ LI.^Adverse possession lies for vendee, after deed purporting to convey even against vendor. — 24 W. Ya. 244; 1 Pet. 480; 25 Gratt. 144; 5 Pet. 402; 28 W. Ya. 749. III. — A void patent gives adverse p>ossession. — 34 Ark.' 547; 17 Pla. 557; 13 Tex. 94; 23 Tex. 36. IV. — A void tax-deed gives adverse possession. — 23 W. Ya. 675.

<p>1. Deficiency — Sale—Land—Abatement of Price.</p> <p>When there is a contract for sale by the acre of a tract of land reijresented to contain a specified number of acres, and there is ascertained tobe a deficiency in quantity, a court of equity will, even after a conveyance has been executed, abate from the unpaid purchase-money the value of the deficiency at the stipulated price.</p> <p>2. Deficiency — SuRvey—Measurement.</p> <p>In ascertaining the quantity, each party has a right to have the survey made by. horizontal measurement, unless such party is estopped from asserting such right, or has waived the same, or unless surface measure has been specially contracted for.</p>

<p>cited 21 Ind. 454; 6 Watts & S. 290; 67 Am. Dec. 579; 55 Ga. 406; 18 W. Ya. 97; 85 Ya. 446; Id. 368; 34 W. Ya. 563.</p> <p>cited 1 Greenl. Ev. §§ 461, 462; 8 Gratt. 289 ; 30 Gratt. 652; 6 W. Ya. 388; 7 W. Ya. 348; 8 W. Ya. 372; 18 W. Ya. 75; 22 W. Ya. 452; Id. 676, 673; 23 W. Ya. 449; 27 W. Ya. 206 ; 24 W. Ya. 199, 203; 31 W. Ya. 94, 104; Id. 428; 7 Am. & Eng. Ency. Law 138; 34 W. Ya. 563; BestEv. 78, 217; 1 Greenl. Ev. §§ 463, 465; 12 W. Ya. 699; 36 W. Ya. 681; 1 Min. Inst. (t. p.) 337-343; 32 W. Ya. 487; 21 W. Ya. 224; 29 W. Ya. 441; 102 Mass. 236; 115 Mass. 165; Am. Dig. (1889) 994; 24 W. Ya. 409.</p>

<p>cited 12 S. E. Rep. 699; Rev. Code (1792) c. 76, § 27; Code (1819) c. 128, § 101; Code (1868) c. 125, §29; 16 Gratt, 313; 11 W. Va,' 107; 9 Gratt. 188; Bac. Abr. (Gwollin) 369; 2 H. & M. 595-602; 3 H. & M. 134; Bar. L. Pr. 105; 10 "W. Va. 470, 474; 21 W. Va. 377; 27 W. Va, 32; Bar. L. Pr. 158; 26 Wis. 372; 2 Add. Tor. 521 (note); 2 Greenl. Ev. 505 (note); 53 Am. Bee. 338; Id. 345 (n.); 3 Lawy. Rep. 529.</p> <p>cited 1 Call. 83; 2 Wash, 187; 2 Call 39; 2 Mass. 358; Bar. L. Pr. p. 105, s. 9; 22' W. Va. 255; Id. 271; 7 W. Va. 443; 3 Am. & Eng. Ency. L. 820; Harp. 83; 3 Rev. 141; 2 A. K. Marsh. 465; 30 Ga. 829; 59 Cal. 345; 3 Ind. 552; 10 la. 506.; 18 la. 43; 6 La. Ann. 653; 72 Mo. 518; 2 Add. Torts 518; 11 East 23, 24; 2 Caines 292; 6 Rob. (H. Y.) 338; 32 la. 88; 30 la. 570.</p>

<p>1. M AND AMITS — PRACTICE.</p> <p>The practice in this State in mandamus is generally to issuetthe alternative writ on filing the petition without any rule to show cause why it should not issue. Immediately on the filing of the petition, if a prima facie case is thereby made out, an alternative writ of mandamus may be issued.</p> <p>2. Mandamus — Phactice.</p> <p>The alternative writ should run in the name of the State, and, properly speaking, the case should be entitled, “The State at the relation of (the petitioner) against (the respondent;)” but the practice prevails in this State of entitling the cause in the name of the relator as plaintiff against the respondent as defendant.</p> <p>3. Mandamus — Discontinuance—Practice.</p> <p>If the relator has embraced too many persons in his alternative writ, there is no error in permitting him before the trial to enter a discontinuance as to one or more and to proceed against the remainder.</p> <p>4. Clerk oe County Court — Fees—Records—Public Papers.</p> <p>The clerk of the County Court can not refuse to permit any person to have access to and inspect the public papers and records in his custody and office as clerk on the ground that no fee has been paid him for such inspection. Neither can he charge any fee, unless he makes a search for a matter of over one year’s standing, or is required to make out a copy.</p> <p>5. Cleric oe County Court — Fees—Records—Public Papers.</p> <p>The records and papers of every County Court clerk’s office in this State are open to the inspection of any person; and the clerk can not charge a fee for such inspection, and can only charge for searches made by himself at request, as above specified.</p>

Merrick Smith attorney for plaiutifis in error: causa of action. — 1 Hob. (Hew) Pra. 358; 3 Am. & Eng. Eney. L. 46 (n. 1); 5 B. & 0. 259 ; 10 How. Prae. 1; 15 H. Y. 505; 70 X. 0. 157. II. — Material amendment of pleadings during trial entitles opposing party to discharge of jury and, continuance. — 28 W. Va. 583, 595.

<p>1. Appeal — Certiorari.</p> <p>The case of Long v. Railway Co., 35 W. Va. 333 (13 S. E. Hep. 1010) approved and reaffirmed.</p> <p>2. Appeal — Certiorari.</p> <p>Where an appeal is a matter of right, the efflux of the time within which it may be taken is stopped by the filing of the appeal-bond ; but, where the appeal depends upon discretion or allowance, the time of limitation runs until the application or petition for appeal is presented.</p>

<p>1. USURY — PURCHASE-MONEY.</p> <p>To constitute usury there must be a borrowing and lending with intent to exact more interest than is allowed by law, or a forbearance in consideration of such interest being paid. But if what is called interest, or what is aimed at on the basis of a certain rate of interest, is in fact a part of the purchase-money or price of a tract of land sold, and not a mere cover for a loan or for the forbearance of money, it is not usurious, but is as really a part of the purchase-price for the land, as is the principal sum.</p> <p>2. A case in which this doctrine is applied.</p>

I. — Defendant liable, if injury coidd have been prevented by ordinary care on its pa.rt, notioithstandivg negligence of plain- ■ tif. — m ü. S. 439; 69 2ST. Y. 158; 29 Md. 420; 65 Pa. 269 ; 1 Q.B. 29; 17 Mo. 537; 43 Mo. 380; 47 Mo. 521; 50 Mo. 461; 65 Mo. 22; 64 Mo. 430; 62 Miss. 683; 46 Ill. 75; 2 Ro. R’ds 1054, 1040. II. — A person taking passage on wrong train can not be expelled as trespasser. — 26 Am. & Eng. R’y Cas. 489.

<p>cited 1 Min. Inst. (1879) 1136; Code (1891) c. 135, s. 1, sub. 7; 18 Gratt. 378; Sto. Eq. PL (4th Ed.) §§ 636, 637; 12 W. Va. 371; 1 Washb. Peal Prop. (5th Ed.) §§ 44-50 & n.; Code (1891) e. 66, ss. 1, 2, 3; 111 U. S. Pep. 722; 4 Am. & Eng. Ency. L. 964; Code (1887) p. 28, s. 49; Code (1891) c. '139, s. 7; 32 W. Va. 232; 1 Bish. Mar. Worn. 243; 25 W. Va. 813, 816; Win. Inst. 1136.</p> <p>cited 32 "W. Va. 34; 2 Am. & Eng. Ency. L. 264; Sands Suit Eq (2d Ed.) 706; Code (1891) c. 65, ss. 15,16 ; 30 W. Va. 599; 25 W. Va. 813 ; 4 Am. & Eng. Ency. L. 962 (n. lj; 18 W. Va. 455; 77 Va. 639; 4 Am. & Eng. Ency.'L. 963 ; Id. 767 (n. 3).</p>

I. — Partnershaving made a valid settlement of the partnership transactions, are concluded by the settlement as to any mutters embraced therein. — 17 Gratt. 322, p’t 8 Syll. II. — Laches, as relied on by exceptions to each transaction and item in. the aggregate, reported and decreed. — 21 W. Ya. 470, p’t 6 Syll.; 24 W. Va. 594, p’t 4 Syll.; 17 Gratt. 321, p’t 4 Syll.

<p>Judcjment — Entry Nunc Pro Tunc — Validity.</p> <p>On the 8th day of April, 1886, two justices presided at a trial, at which a verdict was rendered, but no judgment thereon was entered. Subsequently, nearly two years afterwards, the same justices without notice met and undertook to enter a judgment upon the verdict nunc, pro time. Held, such entry nunc pro iunc was unauthorized and illegal, and was properly treated by the Circuit Court as a nullity.</p>

<p>1. Corporations — Baiuroad Companies — Joint Stock Corporations — By-Laws.</p> <p>The stockholders of the West Virginia Central & Pittsburgh Bailway Company have power to pass by-laws prescribing reasonable qualifications of its directors.</p> <p>2. Corporations — Baiuroad Companies — Joint Stock Corporations — By-Laws.</p> <p>A joint-stock corporation has power by by-law to declare that no person, who is attorney against it in a suit, shall be eligible as a director.</p>

<p>1. Ejectment — Condition Subsequent.</p> <p>The action of ejectment is the proper remedy to recover real es- • tate which has been granted by a deed containing a condition subsequent, upon a failure to perform which the estate of the grantee is to determine.</p> <p>2. Ejectment — Condition Subsequent.</p> <p>At common-law it was necessary for such a grantor to re-enter upon the estate in order to work a forfeiture; but in this State the necessity for re-entry has been abolished by section 16 of chapter 93 of the Code 0891).</p> <p>3. Verdict — Surpdusage.</p> <p>Where a verdict contains matter of fact, which is immaterial and not responsive to the issue, such matter may he rejected as surplusage ; and the verdict shall stand if the remaining portion is responsive to the issue and not open to any further objection.</p>

<p>-J tíAUES — • POSSESSION— PAROU ( 'OXTRACT — .ÍUDUMEXT CREDITORS.</p> <p>When a party has purchased land, by parol contraed, and has been put in possession of the samo, so that he has a valid equitable title thereto, said land is not subject to judgments recovered against his vendor after the sale, and possession has been taken in pursuance thereof. (p. 3(19.)</p> <p>iSAI.ES — PAROL (ÍOXTRACT — TjIBN—J UDGMEXT CREDITOR.</p> <p>A purchaser of land by parol contract which has been so far executed as to vest in him tlio right to compel his vendor to execute the parol contract in a court of equity has an equitable right in said land so purchased, which a court of equity will fully protect against the lien of a subsequent judgment creditor of his vendor, (p. 871.)</p> <p>8. Lien — Judgment Creditor.</p> <p>Where statute enactments do not interfere, a judgment creditor can acquire no better right to the estate of the debtor than the debtor hiniself has when the judgment is recovered. He takes it subject to every liability under which the debtor held it, and subject to all the equities which exist in favor of third parties; and a court of equity will limit the lien of the judgment to the actual interest which the debtor has in the estate.</p> <p>4. Saleh--Judgment — Parol Contract.</p> <p>Whore A. sells land to 13. by parol contract, and B. takes pos- ■ session and control of said land, he thereby acquires an equitable title to the same, which will be protected from a judgment subsequently obtained against his grantor; and the fact that shortly before said judgment was recorded in the judgment lien docket such vendee obtained a deed for said land from liis vendor, which he failed to record, will not render said land liable to be subjected to the payment of said judgment. Holt, J., dissenting.</p> <p>6. Bill or Kioview — Pleading.</p> <p>Tt is not allowable in a bill of review to allege matters by way of amendment or supplement to the original bill which will have a tendency to create new issues. • ¡Such a course would be foreign to the object of a bill of review.</p>

<p>Married Woman — Separate Estate — Husband and Wife— Burden of Proof — Presumption.</p> <p>Where property is alleged to have beeu purchased by a wife, or a conveyance of property is made to her during coverture, the burden is upon her to prove distinctly that she paid for it with means not derived from her husband. Evidence that she made the purchase, or that the property was conveyed to her amounts to nothing, unless accompanied by clear and full proof that she paid for it with her own separate estate ; and in the absence of such proof the presumption is that her husband furnished the means to pay for it, and it will be subject to his debts.</p>

<p>1.Detinue — Bon d — Practice .</p> <p>Tu tilia State, the action of replevin having been abolished, a replevy-bond and counter forthcoming bond have been made a part of the proceedings in the action of detinue, and the scope of this action as a remedy has been enlarged and advanced by chapter 102 of Code. See Ed. 1891, p. 723. (p. 379.)</p> <p>2. Detinue — Pleading.</p> <p>In detinue the plaintiff must aver and prove the kind, quantity or number and value of the property claimed by him, and. that he ^ is entitled to recover the same, and that defendant 'wrongfully detains it. (p. 385.)</p> <p>3. Detinue.</p> <p>He must have at the time of bringing the action a general or special property in what lie seeks to recover or some right of possession thereto, (p. 380.)</p> <p>4. Detinue — Married Woman — Separate Estate.</p> <p>A married woman may bring an action of detinue to recover her separate personal property and join her husband as co-plaintiff. (p. 384.)</p> <p>5. Detinue — Husband and Wife — Sale.</p> <p>A direct sale and transfer for a fair and valuable consideration of personal property by husband to wife confers, as against strangers who are not creditors of the husband, a title thereto upon the wife, which may enable her to maintain an action of detinue in the name of herself and husband to recover the same, when unlawfully detained, (p. 383.)</p> <p>(i. Detinue.</p> <p>For the replevy bond, counter forthcoming bond, verdict, judgment, execution, and other procedure in the action of detinue, see chapter 102, Code.</p> <p>7. Detinue.</p> <p>A case in which the action of detinue as a remedy for a married woman, where the suit concerns her separate property, discussed and applied.</p> <p>8. Argument oe Counsel — Discretion oe Court.</p> <p>It is not improper for the trial-court to permit counsel in argument before the jury to comment on the fact that the other party 4S has not called and examined a material witness summoned on his behalf and present, and to ask such question as may be proper to lay the foundation for such comment. But such matters are largely within the discretion of the trial-court, (p. 891.)</p>

<p>cited How. Part. §§ 9, 10; 10 W. Ya. 171; 27 W. Ya. 759 ; 4H.4M.1; 5 Band. 126, p’tl,Syll.; 17 Gratt. 187, p’t 10,Syll.; 1 Greenl. Ev. §§117, 118; 30 W. Ya. 248, p’t 4, Syll.; 32 .W. Ya. 203; Code, c. 74, s. 1; 31 W. Ya. 16; 11 W. Ya. 217; 26 W. Ya. 225; Code, c. 129, s. 4; 13 W. Ya. 440, p’t 10, Syll.</p> <p>cited 32 W. Ya. 566 ; Id. 203 ; Id. 447 ; Code,c. 125, b. 33; 34 W. Ya. 442; Code, c. 130, s. 35; 27 W. Ya. 510, 436; 33 Gratt. 730; 18 W. Ya. 694; 28 W. Ya. 415; Code, c. 130, s. 23; 34 W. Ya. 442; 35 W. Ya. 634; 14 S. E. Rep. 59; 1 Bl. Judgmts § 56; Id. 211; 106111. 36; 47 Pa. St. 307; 33 Gratt. 351; 29 W. Ya. 385 ; 13 W. Ya. 572; 15 W. Ya. 829 ; 19 W. Ya. 366 ; 27 W. Ya. 759 ; 27 W. Ya. 220; 20 W. Ya. 272 ; 22 W. Ya. 581; 24 W. Ya. 525 ; 20 W. Ya. 244.</p>

<p>1. Res Judicata.</p> <p>An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling- of the court will not prevent the matter from being res judicata. Sayre’s Ádm’r v. llar-pold, 33 W. Va. 553 (11 S. E. Rep. 16). (p. 416.)</p> <p>2. Injunction — Evidence.</p> <p>Equity will restrain by injunction, not only the suit at law itself, but also the introduction of evidence in such suit, which, though perhaps legally admissible, is manifestly contrary to right and justice, (p. 420.)</p> <p>3. Dismission — BAR.</p> <p>Dismissal of a bill in equity upon the merits is a bar to further proceedings in the same court for the same purpose between the same parties ; and this, too, though the court may not have gone into the evidence, (p. 418.)</p>

<p>1. Juries — Discretion op Court — View by Jury — Evidence-Railroad Companies — Negligence.</p> <p>The syllabus in Qumi v. Railroad Go., 36 W. Va. 165 (14 S. E. Rep. 466) applied to this case.</p> <p>2. Bill op Exceptions.</p> <p>When a bill of exceptions makes such reference to a paper, as will enable it to be safely copied into the record and acted on as the true paper, said reference makes said paper a part of said bill.</p>

I.— If the fact of forfeiture is not res judicata, the -plaintiff ought to have the relief prayed for in the bill. — 15 S. E. Rep. 151; 2 Pom. Eq. § 880; 34 W. Ya. 375 ; 34 W. Ya. 397.

<p>1. Discretion of Court — Circuit Court — Decree — Death of Party.</p> <p>Section 9, c. 127, of tlie Code, provides: “When, in any suit in equity, the number of parties exceeds thirty, and any one of said parties jointly interested with others in any question arising therein shall die, the court may nevertheless proceed, if in its opinion all classes of interest in the case are represented, aad the interest ol' no one will be prejudiced by the trial of the cause, to render a decree in such suit as if such person were alive, decreeing to the heirs at law, distributees or representatives of such person, as the case may require, such interest as such person would have been entitled to, had such person been alive at the date of the decree.” The Circuit Court may, at its discretion, act upon this provision of the Code, and this Court will seldom interfere with the exercise of such discretion, (p. 479.)</p> <p>2.- Limitations of Actions — Statute of Limitations — Judgments.</p> <p>The ten years statute of limitations, which in sections 11, 12, c. 139, of the Code, is made applicable to judgments, applies to judgments rendered before the 1st day of April, 1869, at which date the Code took effect (p. 481)</p> <p>3. Limitations of Actions — Statute of Limitations — Creditors’ Suit— Eefe ren ce — Lien.</p> <p>In a creditors’ suit, where the object and purpose are to ascertain all the liens upon the debtor’s real estate, and their priorities, and to provide for their payment, the statute of limitations will in general cease to run against such liens after the entry of an order of reference, (p. 431.)</p> <p>4. PresumerioN — Judgments—Execution—-Shekiff.</p> <p>In the absence of proof to the contrary, and especially after a great lapse of time, an execution, which had gone into the hands of the sheriff and is indorsed by him as levied on personal property of the debtor, will warrant two presumptions: First, that the officer levied on sufficient property to pay the debt; and, secondly, that the property had been sold, and the judgment and execution satisfied, (p 481.)</p> <p>5. DEGREE — ERROR—APPEAX,.</p> <p>If a decree in chancery erroneously authorizes execution to issue on the foot of the decree, this is error, which may be corrected by an appeal or other direct proceeding, but the decree can not be attacked in a collateral proceeding, (p. 483.)</p> <p>6. Kes Judicata — Estoppel.</p> <p>Although the opinion of this Court should indicate that im- • portant questions involved in the pleadings had been overlooked, which, had they been considered, might have changed the adjudication, nevertheless the decision, when it has been rendered and has become final, settles the rights of the parties in that particular ease, and it may be pleaded as an estoppel, (p. 483.)</p>

cited Code, c. 131, s. 1; 2 Va. Oas. 201; 3 W. Va. 266; 2 Dan. Ch’y Pr. 1711; Code, c. 135, 1, Par. 7; 25 W. Va. 535; 33 W. Va. 569; 21 W. Va. 325; 19 'W. Va. 579; 5 W. Va. 580. I. — The process was properly issued and served on the day to which it was returnable. — 13 S. E. Rep. 45. II. — There was a pending suit so soon as the process toas served. —2 Raud. 93 ; 11 W. Ya. 511; 21 W. Ya. 601; 69 Me. . 336.

<p>1. Fraud — Burden oe Proof — Vendor’s Lien — Deficiency.</p> <p>In a suit in equity to enforce a vendor’s lien, where fraud and misrepresentation on the part of the plaintiff are relied on by the • defendant in his answer as to the quantity of the land which was conveyed to the defendant by the plaintiff without warranty, and the deed has been accepted and recorded by the defendant, the burden of proving such fraud and misrepresentation rests upon the defendant.</p> <p>2. FRAUD — EVIDENCE.</p> <p>Where fraud and misrepresentation on the part of the plaintiff' are alleged in the answer of the defendant, and denied by the plaintiff, in order that the defendant should sustain such defence lie must preponderate in the evidence.</p>

<p>MASTER AND SERVANT — INJURY TO EMPLOYE —NEGLIGENCE OE Fellow Servants.</p> <p>A master is not liable for an injury to his servant caused by the negligence of such fellow servant as exempts the master from liability.</p>

<p>1.' Trusts and Trustees.</p> <p>S. enters into an executory contract for tlio purchase ot a tract of land, takes po-session of the same, erects buildings, and makes valuable improvements thereon, but before the title is conveyed to him, or any part of the purchase-money is paid, he agrees with B. &M., if they will pay the purchase-money, they may share equally in the property in its improved condition in the proportion of one third each, and in pursuance of said contract said E. & M. do pay the purchase-money, and take the deed therefor to themselves. Under these circumstances, a trust as to one third of said property results in favors of S.</p> <p>2. Trusts and Trustees — Statute of Frauds.</p> <p>Trusts of this character are exempted from the statute of frauds, and the circumstances creating them may be proved by parol.</p> <p>3. Trusts and Trustees.</p> <p>It is not necessary, that the party in whoso favor the trust is claimed should actually count out and pay down the purchase-money to the vendor. If is sufficient if the money or its equivalent is furnished to the party who pays such purchase-money, and a trust results to the party in whose behalf it is advanced, although the party advancing the money has taken a deed to himself, and, if only a part of the purchase-money is paid by a third person, a trust results pro tanto.</p>

<p>I. — Court had no jurisdiction to proceed to a partition. — 15 Am. Dee. 712 ; Id. 731; 42 Am. Dec. 163; 47 Am. Dec. 358; 45 Am. Dec. 552; 13 Pet. 166; 4 Rand. 493; 18 How. 297; 67 Am. Dec. 733 ; 77 Am. Dec 684.</p> <p>II. — If the court had jurisdiction the relief could not he granted, because a court of equity never enforces forfeiture. — 36 W. Va. 639; 40 N: II. 530; 31 Conn. 468; 15 Wall. 146; 1 Pet. 232; 2 Sto. Eq. § 1319; 1 Johns. Ch’y 415.</p> <p>III. — There was no forfeiture in this case. — 80 Pa. St 142 i 36 W. Va. 639; 34 W. Va. 375; Id. 397; 1 Wall. 24; 98 II. S. 514; 17 Wall. 19; 96 U. S. 336; 22 IS. J. Eq. 457; 4 W. Va. 45; 6 W. Va. 110; 18 Gratt. 812; 16 W. Va. 246; 24 W. Va. 1; 12 W. Va. 246; 13 Ohio St. 471.</p> <p>IV.— The deed did not give such title as authorized partition.— 6 Mo. App. 297.</p> <p>V. — The Oil and. Gas under the surface could not he partitioned. —15 Am. Dec. 669; 28 W. Va. 210; 41 Pa. St. 357; 80 Pa. St. 142.</p> <p>Iea.se under which appellant claims should he held good. — 34 W.Va. 375; 36 W. Va. 639.</p> <p>I. — Equity will not enforce forfeiture. — 1 Pom. Eq. Juris. §§ 459, 460; 34 W. Va. 375 ; Id. 385.</p> <p>II. — Oil in the Rock can not be transferred by such an agreement. — 28 W. Va. 210, 218, 220.</p> <p>III. — Tenant in common can not convey oil right so as to affect his co-tenants. — 19 K. J. Eq. 394; Freem. Opten. & Part. § 198; 7 Cush. 368.</p> <p>TV.— Craig not entitled to have partition made. — Code (1891) c. 79; 19 1ST. J. Eq. 394; 56 Miss. 342; 7 Watts. 205; 9 Watts 410; 16 Gratt. 264; 65 Cal. 46; 44 N. J. Eq. 454.</p> <p>V. — Admissibility of Evidence. — 12 S. E. Rep. 526; 4 W. Va. 45; 6 W. Va. 110; 18 Gratt. 812; 16 W. Va, 443; 12 W. Va. 246; 22 W. Va, 1; 22 K J. Eq. 457; 17 Wall. 19, 24, 25; 98 IT. S. 514; 128 U. S. 590.</p> <p>Cox & Bakek for appellee, cited 11 S. E. Hep. 754; 36 W. 639; 88 Pa. St. 198 ; 58 la. 308; 2 Kent. Com. 228, 230 & n.; 19 Ves. 122; 11 Ves. 278; 32 Ga. 266; 72 Ga. 475; 8 Barb. 48; 3 Yerg. 336; 50 Mo. 546; 75 Mo. 204; 33 Conn. 347; 71 Ala. 240; 11 Pa. St. 36; Walk. Eq. 145; 79 Va. 73; 69 la. 208; 12 B. Mon. 651, 662; 57 Ill. 489; 2 Beasl. 348; 60 Pa. St. 118; 9 Am. & Eng. Ency. L. 113 (b); 5 Wait Ac. & Def. 82; 2 Gratt. 341 -,\l8 Pa. St. 42.</p>

<p>1. Damages — Contributory Negligence.</p> <p>Where negligence is the ground of an action it rests upon the plaintiff to trace the fault of his injury to the defendant, and for this purpose he must show the circumstances under which the injury occurred; and if from these circumstances so proven by the plaintiff it appears that the fault was mutual, or, in other words, that contributory negligence is fairly imputable to him, he has, by proving the circumstances, disproved his right to recover, and on the plaintiff’s evidence alone the jury should find for the defendant, (p. 527.)</p> <p>2. Damages — Contributory Negligence.</p> <p>The general rule in regard to contributory negligence is that, if the negligence be mutual on the part of the. plaintiff and defendant, there can be no recovery, (p. 530.)</p> <p>3. Damages — Contributory Negligence — Employes.</p> <p>Where an employe of a railroad company receives an injury which is caused by his acting in direct violation of a reasonable rule made by said company for the safety of its servants, of which rule he has notice, and has promised to obey, he must be deemed guilty of contributory negligence, and'can not recover damages from the company for such injury, (p. 534^537.)</p> <p>4. Motion to Strike Out Evidence.</p> <p>A motion to strike out the plaintiff’s evidence will not be entertained after the defendant has given in his evidence, on the ground that it is i nsufficieut to sustain the issue on the part of the plaintiff, (p. 533.)</p> <p>5. Evidence — Experts.</p> <p>If the facts in a case can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then the opinion or experts can not be received in evidence as to such facts, (p. 532.)</p> <p>G. Evidence.</p> <p>The opinion of a witness, who neither knows nor can know more about the subject-matter than the jury, and who must draw his deductions from facts already in the possession of the jury, is not admissible, (p. 532.)</p> <p>7. Evidence — Experts.</p> <p>When the. inquiry relates to a.subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled witnesses is not admissible, (p. 532.)</p>

<p>1. Fraudulent Conveyance — Assignment.</p> <p>A deed fraudulent on its face and. void in toto, not being attacked or set aside, is good between the parties, (p. 545.)</p> <p>2. Fraudulent Conveyance — Assignment—Title—Possession.</p> <p>Where personal property has been assigned by a recorded deed fraudulent on its face and subsequently has beén purchased by a party for value and has remained in his actual, undisturbed and continuous possession for five years, his title thereto is perfect, provided he was not a party to the fraudulent assignment, and has not in any way nor by any means direct or indirect obstructed the creditors of the fraudulent assignor in the prosecution of their rights, (p. 545.)</p>

<p>I.— Who is a creditorf — 2 Big. Fraud, 143 note 4, 145 note 1,146 notes 1, 2, 3, 4, 5 and 6; 128 Mass. 102; 37 N. J. L. 800 ; 2 Boot (Conn.) 261; 28 Conn. 103 ; 9 Gusli. 482 ; Bov. Laiv Diet.; And. Law Diet. 291-2; 11 Bush (Ky.) 353.</p> <p>II. — Me Gagin was unable to pay his debts in the ordinary course of business and was therefore insolvent. — 11 Am. & Eng. Enoy. Law 168; 112 Pa. St. 294; 36 Minn. 364; 16 Wall. 277, 308; 9 K. Y. 594; 2 Big. Fraud 190 note 1; 5 Lawy. Rep. Ann. 765 note ; And. Law Diet. 562; 13 Wall. 47; 21 Wall. 338; 125 U. S. 90 ; 94 U. S. 557.</p> <p>III. — Not necessary that the purchasing creditors should have notice of insolvency.— Code c. 4, s. 2.</p> <p>IV. — Any facts ■which would put a prudent ■man on inquiry would be notice of insolvency.- — 2 Big. Fraud 603 notes 3 and 4; 49 £T. W. Rep. 191; 95 TJ. S. 342; 94 U. S. 557; 16 Wall. 308; 13 Wall. 40; 54 Md. 362; 119 Mass. 245 ; 101 Mass. 262.</p> <p>I. — Insufficiency of verification. — 10 Am. & Eng. Enev. Law 1004, & n. 4; 5 W. Va. 579; 12 W. Va. 667, 679.</p> <p>II. — Bill not good. — 6 Am. & Eng. Ency. Law 754, u. 4; 5 W. Va. 579; 12 W. Va. 667; 10 Am. & Eng. Ency. Law 1002, n. 2.</p> <p>III. — Appellants 'fail to show themselves creditors as against ■Armstrong and Brown. — 16 W. Va. 108, 154, 155; 20 W. Va. 169 ; 7 W. Va. 474.</p> <p>IV. — McGugin’s answer can not be read against Armstrong and Brown. — 2 Wheat. 380; 6 Cranch 8; 9 Cranch 153 ; Matthew’s Guide 53; 9 Wheat. 738.</p> <p>V. — .Fraud per se. — 29 W. Va. 702; 22 W. Va. 350 ; 25 W. Va. 596, 597 ; 32 W. Va. 34.</p> <p>VI. — Fraud in fact. — 22 W. Va. 356.</p> <p>VII. — Right of debtor to make preferences prior to amendment.— 22 W. Va. 356.</p> <p>VIII.— What not general assignments, what not preferences, sales. — 1 Am. & Eng. Ency. Law 846; 76 Ala. 295 and cases cited in n. 1; 1 Am. & Eng. Ency. 846 ; Burrill on Assignments, § 161, n. 3, 162; Idem, § 3 and 4; 7 Pa. St. 449; 26 Pa. St. 92; 60 Am. Eep. 783 ; 3 Sumn. 350 ; 5 Neb. 531; 'll So. Rep. 347 ; 39 Am. Rep. 481; 28 Am. Rep. 704; 77 Am. Dec. 137; 84 Am. Dee. 508; 15 S. E. Rep. 48. _</p> <p>IX. — As to who are creditors —5 Am. & Eng. Ency. 179.</p> <p>. X. — Armstrong and Brown stand in shoes of Oil Well Su-pply Co., and Bk. — 85 ICy. 574 ; 11 Bush 353; 44 Eed. Rep. 467; 9 S. Ct. 309.</p> <p>XI. — McGugin!s admissions of indebtedness to appellants not received against Armstrong and Brown. — 1 Greenl. § 190.</p> <p>XII. — Amend,ment not to prevent fraud. — 2 S. E. Rep. 322.</p> <p>XIII. — Gan not attack as fraudulent and as giving preferences in same suit. — 2 S. B. Rep. 325.</p> <p>I. — A conveyance made in fraud of creditors to a creditor, xoho is a bona fide pur cha ser, is. good; and such purchaser is protected to the extent of money advanced (i. e. paid, or that he has bound himself to pay). — 10 Eed. Rep. 125 (N. Y.).</p> <p>II.— Where there is nothing on the face of the deed to indicate that it toas made for any other purpose than in good faith, §c. proof is required, ‡c. — 6.Sup. Ct. Rep. 982.</p> <p>III. — The subsequent employment of McGugin not evidence of fraud. — 10 Eed. Rep. 101, p’t 6 (N. V.).</p> <p>IV. — There is nothing suspicious or inconsistent -with honesty and fair dealing in a provision in a deed of trust allowing the grantor to continue to sell under the supervision and control of the trustee.- — 23 Fed. Rep. 42 L (North Carolina).</p> <p>V. — However, the trustee not being a party to the bill of complaint as modified and acted, on, the deed of trust cannot be attacked as fraudulent.</p>

<p>1.Witness — Incompetenoy.</p> <p>The question of the competency of a witness is a question for the court and not for the jury; and when a witness is offered in a criminal case, and a doubt is raised as to the competency of such witness, it is the duty of the court to determine that question upon a careful examination of the witness as to age, capacity and moral and legal accountability.</p> <p>2.Witness — Incompetenoy.</p> <p>If the proposed witness is au infant of such tender years and mind as to be legally irresponsible for her conduct, and to have no conception of the legal or moral obligation of an oath, nor of the pains and penalties for false swearing, she is not a competent witness.</p> <p>3. Witness — Incompetenoy.</p> <p>A witness introduced in this ease on behalf of the State five years of age, of ordinary intelligence, with very little or no knowledge of moral accountability, and clearly outside the jiale of legal responsibility, is held competent to testify without a sufficient preliminary examination by the trial court to determine her competency. This was error, which will be reviewed by this Court.</p> <p>4. Witness — Incompetenoy.</p> <p>If on the examination of such witness her incompetenoy appears, it is the duty of the court on motion of the accused to exclude her evidence from the jury; and it would be error for the court to refer the question of competency to the jury, either by instruction or otherwise.</p>

<p>1. Biol in Chancery — Proof—Pleading.</p> <p>A plaintiff can no more recover without sufficient averments in his bill than he can without proof of his averments properly made ; the one is as essential as the other, and both must concur, or relief will not bo granted.</p> <p>2. Bill in Chancery — Answer—Depositions—Decree—Reversal — Practice.</p> <p>Where a cause is brought on even by consent to be heard upon the bill and answer, and there is no replication, the answer is to be taken as true in every part of it, including also the facts stated, which are not responsive to the bill; but a decree will not be reversed for want of a replication, where the defendant has taken depositions, as if there had been a replication.</p> <p>3. Fraudulent Conveyances — Fraud.</p> <p>Where a conveyance is made to a near relative, the fact is calculated to awaken suspicion, and the transaction will be closely scrutinized, though the fact is not of itself sufficient to raise a presumption of fraud.</p> <p>4. Fraudulent Conveyanobs — Inadequacy oe Price.</p> <p>•Mere proof of inadequacy of price by itself has been considered insufficient to implicate the vendee in the fraudulent intent, and inadequacy of price, unless extremely gross, does not par se prove fraud. It must appear that the price was so manifestly inadequate as to shock the moral sense, and create at once upon its being mentioned a suspicion of fraud.</p> <p>f>. Bill in Chancery — Answer—Fraudulent Conveyances— Practice.</p> <p>Where.a bill seeks to set aside a deed of conveyance as voluntary and fraudulent, and the grantee in his answer denies any knowledge of fraud in the transaction, in the absence of any rep- • lication to said answer such allegation will be taken to be true.</p>

<p>cited 32 W. Va. 6 ; 35 W. Va. 457.</p>

<p>RECORDING — J UDGMENT — LTEN.</p> <p>A person has equitable title to land under an executory written contract, and by written assignment transfers it to another, which assignment is not recorded, and a judgment goes against the assignor. The assignment is void as to such judgment, and tire equitable right to the laud under the contract and assignment is subject to the judgment, because of failure to record the assignment.</p>

<p>cited Code c. 134, s. 5; 32 W. Va. 30, 32; 27 W. Ya. 439; 26 W. Ya. 568.</p>

<p>cited 1 Am. &Eng. Ency. L. 314; Id. 310: 5 W. Va. 22; 7 W. Va. 701.</p>

<p>Municipal CORPORATIONS — Sidewalks—Notice.</p> <p>A city charged with keeping the sidewalks of its streets in repair is liable for injury to a person arising from a defective sidewalk, whether it have notice of the defect or not.</p>

<p>Riparian Rights — 'Wharf—Landings—Navigable Rivers.</p> <p>Under the laws of this State, a person may acquire such qualified property in a landing or wharf on or along any of its navigable streams as will entitle such person to maintain a suit for damages against another for unlawfully or negligently obstructing or injuring the same.</p>

<p>1. New Trial — Bill oe Exceptions — Waiver—Evidence.</p> <p>A motion for a new trial should indicate, in a way sufficient to call the attention of the court to them, the grounds for such new trial, unless the point has been made the subject of a bill of exceptions. Where it is claimed that evidence has been improperly admitted, and an exception noted, but no bill of exceptions taken, and the record states that the motion for new trial was based oh certain specific grounds, not naming' the admission of such evidence, that exception will not be considered in the appellate court, but will bo treated as waived, (p. 609.)</p> <p>2. Railtsoad Companies — Master and Servant — Employer and Employe.</p> <p>A rule of a railroad company will not be binding on its employes unless they have knowledge of it. (p. 613.)</p> <p>3. Railroad Companies — Principal and Agent — Master and Servant — Employer and Employe.</p> <p>The test of the liability of a principal or master for the torts of his agent or servant is whether the latter was at the time acting within the scope of his authority in the business of the principal or master, and not whether the act was done in accordance with his instructions. Ifsuch act be done within thescopeofauthority, and while the agent or servant is engaged in his employer’s business, the latter is bound for it. (p. 614.)</p> <p>4. Argument op Counsel — Discretion op Court — Reversal.</p> <p>Whether counsel, in argument before a jury, shall read law from law books and reported cases, and comment thereon, is within the discretion of the court, subject to review in case of abuse of discretion. If the law read be good law, and relevant to the case, it is clearly not a ground of error. If bad law, or irrelevant to the case, and calculated to mislead the jury, yet, if the court has given instructions correctly stating the law on the subject, it would not be reversible error; but, in the absence of such instructions to counteract the danger, it would be reversible error, (p 618.)</p>

I. — Parol license for use of land executed can not be revoked.- — ■ 7 Dana 276; 2 Met. (Ky.) 98; Hill. Inj. § 60; 4 Johns. Ch’y 434; 3 Kent Com. 437; 31 Pa. St. 263; 57 N. Y. 220, 221; 10 Am. Dec. 38, 42 ; 54 Am. Dec. 153; (injunction against violation of a parol license executed) 9 Cent. Kep. 910; 4 Serg. 241; 52 N. Y. 209, 220.

I.— Void deed of married woman is color of title in adverse' possession. — 22 W. Va. 120 II. — Adverse possession for ten years, bars plaintiff’s action.— 20 W. Va. 480; 26 W. Va. 345 and 629; 28 W. Va. 34. III.— Where contract is revoked, to recover purchase-money paid. —30 W. Va. 140, Moore v. Ligón. cited 27 W. Va. 483; 24 W. Va. 238-243; 2 Lom. Dig. 189; 35 W. Va. 554-560; 16 W. Va. 1-24; Wood Lim. Act. 517, 518, 519.

I. — But three classes of mechanics’ liens on land given by provisions of chapter 75, Code of 1887. — Code (1887) c. 75, ss. 2-5,7. II. — The words, house or other building, as used in sec. 2 can. not be construed so as to cover railroad-bridge, abutment or embankment. — 13 Cray (Mass.) 311;' 11 “Wis. 119. HI. — Mechanics lien law strictly construed. — 8 W. Va. 384.

cited 2 Munf. 518 ; 11 W. Va. 94. I. — Operations were commenced as required by lease. — 30 W. Va. 176; 57 Pa. St. 65; 61 Pa. St. 107; 51 Pa. St. 233; 12 S. & E. 190; 32 Pa. St. 267 ; 8 S. & E. 172; Sto. Eq. Juris. § 1319. II. — No ground of forfeiture existed if well was completed within thirty months from date of lease. — -61 Pa. St. 107; 30 W. Va. 176 ; 51 Pa. St. 283; 1 Cas. 397 ; 57 Pa. St. 65; Sto. Eq. Juris. § 1319;. 138 Pa. St. 249; 130 Pa.

<p>1. CONSTABLE — OFFICER—INDEMNIFYING BOND — OFFICIAL BOND.</p> <p>In order to authorize any officer who is required to levy an execution or warrant of distress on property to require an indemnifying bond it is necessary that a doubt should arise as to whether said property is liable to such levy, and, when the indemnifying • bond so required has been given, the right of the officer to recover after a judgment has been obtained against him and his sureties in his official bond for making sale of the property does not depend upon the question as to whether said doubt was well founded or not.</p> <p>2. Offices — Constable—Indemnifying Bond — Official Bond.</p> <p>Where an officer is required to levy an execution upon property which is claimed as exempt by the judgment-debtor, and an indemnifying bond is required and given, and said officer proceeds to make sale of the property, and damages are recovered from him and his sureties on his official bond, he may reimburse himself by a suit on the indemnifying bond.</p> <p>3. Officer — Constable—Indemnifying Bond — Official Bond.</p> <p>An officer who is required to levy an execution on property, and a doubt arises as to whether such property is liable to distress or levy, may require an indemnifying bond, and, when the same is properly executed, return it within twenty days to the office of the clerk of the Circuit Court of the county in which such property may be, and thereby protect himself and his sureties in his official bond from any action on his official bond, provided the security therein be good at the time of taking it, unless it be for the forfeiture of five dollars per day provided by section 25, e. 41, of the Code, and the forfeiture of double the value of the property sold by him, as provided in said section.</p>

I. — The allegata and probata, in matters of substance, must substantially agree; in matters of description must exactly agree. — 1*75 My. Fed. Dec. 3267 ; 3 Rob. Pr. (New) 563, 558; 1 Iredell 26; 1 T. R. 447 ; 9 East 157; Green. Ev. P’t. 2, eb. 2 ; 41 Am. Dec. 128; 74 Am. Dec. 77; 4 Wall. 642; 91 IT. S. 294; 6 Leigh 61; 6 Rand. 551; 71 Am. Dec. 347; 10 East 83; 2 Spears 46 ; 29 Am. Dec. 126 ; 14 Pet. 43 ; 1 Cranch 283; 7 Cranch 208 ; 3 Call. 378 ; 65 Am.

<p>cited 9 Gratt. 503 ; 17 W. Va. 717; 23 W. Va 639; 34 W. Va. 95; 30 W. Va. 619; 35 W. Va. 384; Bump Fraud. Oonv. 34, 36, 37, 49, 51, 54, 205, 207; Wait Fraud. Oonv.</p> <p>cited 35 W. Va. 384; 23 W. Va. 639; Bump Fraud. Oonv. 215; 4 Band. 282; 6 Band. 285; 17 W. Va. 717; 35 W. Va. 547; 28 ' Gratt. 49; Bisp. Eq. §§ 45, 214-264; 11 W. Va. 229 ; 34 W. Va. 95; 23 W. Va. 639; Waite Fraud. Oonv. 22, 23.</p>

<p>Code e. 75, s. 1; 26 W. Va. 607, 609, 610; 2 Sto. Eq. Juris. § 1218; >1 Leigh 597; 8 Leigh 522; 7 Wheat.-46; 13 Gratt. 621 ; 1 Lev. & Bat. 379 ; Id. 32, 35; 2 Humph. 145 ; 1 Lead. Cas. Kq. (t. pf) 279.</p> <p>cited Wat. Spec. Perf. § 369; Id. 370; Id. 371; 14 N\ 11. 378; 27 Tex. 678 ; 1 Bush 316 ; Id. 168 ; 10 Ohio 85 ; 2 Gratt. 266; 3 Gratt. 335; 17 Ala. 557; 2 Johns, dry 585; 55 Am. Dec. 138; 1 Pet. 1, 13 ; 19 Cal. 673; 44 NT.' II. 446 ; 33 Am. Dec. 193; 1 Am. Dec. 26 ; 29 Am. Dec. 63 ; 19 Am. Dec. 395; Id. 399; 31 Am. Dec. 252; Eree. Jdgts. § 357 ; 2 Am. Dee. 59; 2 Vern. 565; Id. 609; 1 Eq. Cas. Abr. 320; IP. Wms. 279; 39 Am. Dec. 437; 1 Ed. Ch’y477; 1 Sto. Eq. Cas. Eq. 128; 1 Eq. Cas. Abr. 320; 1 Paige 125; 2 Sto. Eq. Juris. (4th Ed.) § 1521.</p>

<p>cited 11 W. Ya. 229 ; 106 Mass. 79; 2 Allen 212; 11 S. E. Rep. 39 ; Pom. Eq. Juris. § 890,891; Id. § 894; Id. § 897; Id. 596 (n); Id. § 601; Id. § 605; Id. § 608; 29 W. Va. 702 ; 57 Am. Dec. 499 (note 505); 95 Ill. 298; 52 Md. 211; Boon Real Prop. § 301; 17 W. Va. 772 ; 19 Am. St. Rep. 322; 1 Hill 311; 83 N. Y. 31; Benj. Sales (Bennet’s 1888) 445 ; 2 Wend. 596; Kerr Pr. &. Mis. 385 ; Id. 236-; 1 Dali. 67; 70 Am. Dee. 548 ; 10 Am. Dec. 267; 5 W. Va. 74; Bump Fraud. Conv. 115; 12 S. E Rep. 831; 28 W. Va. 753 ; 22 W. Va. 585; 21 N. Y. 23; 4 S. E. Rep. 436 ; 16 W. Va. 63; 1 Dav. 360 ; 23 W. Va. 645; 4 How. 242 ; 25 W. Va. 262 ; 2 Min. Inst. 988; 3 Am. St. Rep. 133; 31 W. Va. 156.</p> <p>cited 29 W. Va. 702; 22 W. Va. 356 ; 15 Gratt. 400; 25 W. Va. 596; Id. 717; Id. 729; 32 W. Va. 34; 84 N. Y. 522; Id. 386; 59 Am. Rep. 488; 14 S. E. Rep. 501; 11 S. E. Rep. 245 ; 1 Am. & Eng. Ency. L. 867; 6 Mass. 339 ; 26 Ill. 21; 15 Neb. 476; 11 la. 144; Code, c. 72, s. 6; 40 Hun. 179; 50 N. Y. 352; 23 W. Va. 771; 5 W. Va. 168; 2 Par. Con. 772, 773 (N. Y.); 21 Gratt. 349 ; Code, c. 125, s. 42; 6 Am. & Eng. Ency. L. 754 (n. 4); 15 S. E. Rep. 140; 58 Tex. 306 ; 76 Ala. 103; 58 la. 589.</p>

<p>1. Covenant — DisMissioN—Assignment—Cancellation.</p> <p>Where the agreement upon which an action of covenant is predicated appears to have been assigned to a third party by a written assignment attached thereto, and said written assignment appears to have been cancelled by lines drawn across the same, said agreement being in the possession of the plaintiff, it is error to dismiss his action for want of a formal re-assignment of the agreement before the institution of the suit.</p> <p>2. Covenant — Declamations—Construction of Contkact.</p> <p>When the language of a written agreement on its face is ambiguous, the courts will look at the surrounding circumstances existing when the contract was made, at the situation of the parties and the subject-matter of the contract, and will even call in aid the acts done by the parties under it, affording a clue to the intention of the parties; but the Court never resorts in such a ease to the verbal declarations of the parties either before, at the time of, or after the execution of the contract, to aid in giving construction to its language.</p> <p>3. Covenant — Evidence.</p> <p>The plea of “covenants performed” can only be supported by evidence which shows that the defendant has performed his covenant, and not by evidence showing that his own performance was excused by the act of the plaintiff or any other.</p>

<p>1. Sale — Excess in Quantity op Land.</p> <p>A sale of a tract of land as agiven number of acres, more or less, is a sale in gross, with which a court of equity in the absence of fraud will not interfere in ease of an after-discovered excess, unless it clearly appear, such excess is so great as to affect the terms of the contract, and warrant the conclusion, that the sale would not have been made, had the truth been known.</p> <p>2. Sale — Excess in Quantity op LÍnd — Rescission—Compensation.</p> <p>In such case, that is, where there has been such sale, and such after-discovered excess exists, the Court will on application of the vendor rescind the sale, but will not require the vendee against his will to keep the land and pay for the excess.</p> <p>3.Sale — Excess in Quantity op Land — Compensation.</p> <p>Where the vendee, after lie discovers an excess of acres in the tract of land purchased by him so large, that it could not have been taken into contemplation by his vendor, without making his discovery known or offering to rescind the contract sells the land to an apparently innocent purchaser, and thus puts it beyond the power of a court of equity to restore the interested parties to their original rights, on application of the injured party the Court will require the vendee, either to place himself in a condition to rescind the contract, or to pay those entitled thereto a just compensation for such excess.</p> <p>4. Sale — Excess in Quantity of Land — Executor—Presumption — Eesoission—Compensation.</p> <p>If an executor uninformed as to the quantity sells and conveys a tract of land under the will of his testator as containing one hundred and forty acres, more or less, and it is afterwards discovered that the tract contains two hundred and fifty five acres, the excess is so great that a court of equity will presume, that the executor would not have entered into the contract, had the truth been known; and, unless it clearly appears from the evidence and circumstances, that such excess was had in contemplation, the court on applicatidn of those interested will rescind the contract or require the purchaser at his election to pay a just compensation for the excess.</p> <p>5. Sajas — Excess in Quantity of Land — Executor—Paeties— Rescission.</p> <p>While the executor is the proper party to institute suit to rescind such contract, yet if he has disbursed the purchase-money among the devisees and closed his accounts as such executor and does not proceedin a reasonable time, the devisees have the rig-lit to ask for the rescission of such sale, not only for their own benefit, but also for the protection and relief of the executor.</p>

<p>1.Deed — Delivery.</p> <p>A case in which a deed was executed and acknowledged, ready for delivery, but was not delivered by anything then said or done, but was laid away in decedent’s drawer where he kept his papers, together with his will executed at the same time. After the grantor’s death the supposed deed aiid will were found in his drawer. Held, such paper writing is not his deed, never having been delivered.</p> <p>2. Deed — Deliveey.</p> <p>So long as a deed is within the control, and subject to the dominion and authority of the grantor, there is no delivery, without which there can be no deed.</p> <p>3. Deed — Delivery.</p> <p>Of such a deed there can bo no valid delivery after the grantor’s death.</p> <p>4. Decree.</p> <p>A decree must be justified by the pleadings as well as by the proofs.</p> <p>5.</p> <p>A case in which these rules are discussed and applied ; also the competency of certain testimony relating to transactions and - communications had with a deceased person.</p>

<p>1. Corporations — Subso ription — Acknowledgment.</p> <p>A person, who signs and acknowledges an agreement und-r section 6, c 54, Code for the formation of a corporation, becomes a subscriber for stock and is bound to pay for it, when the company afterwards becomes incorporated and organized.</p> <p>2. Corporations — Subscription—Acknowledgment.</p> <p>One, who signs butdoos not acknowledge such agreement, docs not become a stockholder and is not hound for the subscription therein made, unless he in some way acknowledge the existence of the corporation.</p> <p>3. Corporations — Subscription—Acknowledgment.</p> <p>If such agreement be not acknowledged at all prior to the issue of the certificate of incorporation, the company does not obtain corporate existence as to those, who by such preliminary agreement subscribe stock, and they are not compelled to pay such subscription.</p> <p>4. Corporations — Acknowledgment—'Variance.</p> <p>A fundamental variance in the certificate of incorporation from such preliminary agreement willrelieve one, who by it subscribed stock, from payment thereof.</p>

<p>1. New Teiae.</p> <p>Whore a motion for a new trial is made, on the ground that the verdict is contrary to the evidence, and the motion is denied, the opinion of the court, which tried the cause, is on such point entitled to great respect in the appellate court.</p> <p>2. New Tiuae.</p> <p>And the appellate court in such case will grant such new trial only in the case of a plain deviation from right and justice.</p> <p>3. A case in which this rule is applied.</p>

I. — The interest of the minor child is the first or paramount consideration. — 51 F. W. Rep. 1155. II. — A father may abandon his right to infants custody. — 7 FT. W. Rep. 889. III.— Where the father has parted with the custody of his minor child and seeks to regain it, he must show that the change (back to his custody) will materially promote the child’s welfare, morally and physically. — 35 W. Fa. 698 ; 37 Ark. 29.

<p>1. Judgment — Insanity—Lien.</p> <p>A judgment against a person insane at its rendition is not for that cause void and is a lien on land.</p> <p>2. Judgment — Insanity—Writ op Error — Beversal—Equity-Jurisdiction.</p> <p>A writ of error coram nobis, or a motion in lieu of it, is not a proper process to reverse such judgment because of the defendant’s insanity, as the judgment can only be affected in equity, which has jurisdiction in such ease.</p>

<p>1. Forfeiture — Delinquent and Forfeited Lands — Redemption.</p> <p>In order that the former owner of land, which has been forfeited for nonpayment of taxes or for failure to have the same entered on the commissioner’s books for the purpose of taxation,may be entitled to redeem the same, he must within the time prescribed by statute file his petition in the Circuit Court, stating his title to such lands witli evidence thereof, and show by full and satisfactory proof, that, at the time the title to said land vested in the State, he had good and valid title thereto, legal or equitable, superior to any other claimant thereof.</p> <p>2. Forfeiture — Delinquent and Forfeited Lands — Redemption.</p> <p>The forfeiture of such lands as became forfeited by omission, called “omitted lands,” became complete on the 1st day of November, 1836, and the subsequent acts treated them as forfeited, and, although further time to redeem was given, the forfeitures which had accrued by prior laws were not released except in such cases as the owner availed himself of the privilege to redeem.</p> <p>3. Forfeiture — Delinquent and Forfeited Lands — Redemption.</p> <p>In such cases the failure to enter and pay the taxes due on the land and the damages, in the manner prescribed by the act of February 27, 1835, caused the forfeiture to become absolute and complete, and no inquisition, judicial proceeding or inquest or finding of any kind was necessary to consummate such forfeiture.</p> <p>4. Forfeiture — Delinquent and Forfeited Lands — Redemption.</p> <p>Where a tract of land had been omitted from the eommissioner’s books and had thus become forfeited to the State under said act of February 27, 1835, the fact of entering the same on the commissioner’s books in the year 1866 did not relieve it from said forfeiture.</p> <p>5. Forfeiture — Delinquent and Forfeited Lands — Redemption.</p> <p>In order that a party may be entitled to land, which lias been forfeited to the State ¡of Virginia or West Virginia, by transfer, the party so claiming title by transfer must show himself to be entitled thereto by bringing himself within one of the three classes of persons described in section 3 of article XIII of the constitution, which section was carried into the statute and is found embodied in section 40 of chapter 31 of the Code of 1887.</p> <p>0. Forfeiture — Delinquent and Forfeited Lands — Redemption.</p> <p>A case in which a party filing his petiton for the redemption of certain lands therein set forth was entitled to the relief prayed for.</p>

<p>1. Lease — Lanulobd and Tenant — Estoppei^-Bar— Corporation— Name.</p> <p>Where an action of unlawful detainer is brought by a mining company in its proper corporate name against one of its tenants, who had leased one of its tenement houses and had been engaged in mining coal for said company, although the lease was in writing and executed by said corporation under a name different from its true corporate name, assumed for its own convenience, the tenant accepting said lease and occupying said premises and paying rent thereunder is estopped from denying the power of said corporation to contract in its assumed name.</p> <p>2. Lease — Corporation—Name.</p> <p>A contract entered into by a corporation under an assumed name may be enforced by either of the parties, and the identity of the company may be established by the ordinary methods of proof.</p> <p>3. Lease — Notice.</p> <p>Where a lease provides that the same shall terminate and cease, whenever the lessee from any cause ceases to work for the lessor, and it appears that the lessee had ceased to work for the lessor, before the action was commenced, said lessee is not entitled to notice to quit.</p> <p>4. Reversal — Continuan ce — Discretion .</p> <p>A court in granting or refusing a continuance of a cause ought to exercise a sound discretion, and if a party be ruled into a trial or hearing of a cause, when it appears he was entitled to a continuance, the judgment or decree against him will be reversed by an appellate court; but the appellate court will not reverse the judgment or decree of the inferior court for such reason unless its action was plainly erroneous.</p>

I. — A general creditor has no insurable interest in his debtor’s property. — 1 'Wood. Ins. § 300; 5 Hun 343; 49 Conn. 167 ; 11 Am. & Eng. Ency. L. 317. II. — An Insurance Company can not insure the payment of a debt. — 9 Allen 123; 5 Hun 321; 16 Ilun 116; 55 N. Y. 343. III. — Insured must have an insurable interest in the property.— 1 Wood Ins. §§ 265, 266; 94 U. S. 460, 457 ; 62 N. Y. 54; 98 U. S. 538 ; 93 H. S. 543 ; 11 Am. & Eng. Ency. L. 312, notes 4, 5, 6; 20 Am.

<p>1. Bill of Exceptions.</p> <p>Previous to the act of March 12, 1891, which took effect at the expiration of ninety days from its passage, the rule of practice was, that bills of exception might be signed by the judge presiding at the trial before the close of the term, at which final judgment was rendered, but not afterwards.</p> <p>2. Bill op Exceptions — Mandamus.</p> <p>Where a cause lias been tried resulting in a verdict for the defendant, and a motion to set aside the verdict has prevailed, anew trial has been awarded, and the record shows that the defendant excepted, and at a subsequent term of the court a new trial has taken place before another judge resulting in a verdict for the plaintiff, and the defendant moves to set aside the verdict, and, his motion being unsuccessful, he excepts, and counsel agree that two bills of exception may be signed within ninety days setting out the facts on both trials, and the court enters an order showing that said bills were signed, the judge who presided at the first trial can not be compelled within ninety days or at any other time by mandamus to sign the bill of exceptions which pertains to said first trial.</p>

I. — Record must show filing of the hill of exceptions or statement of facts. — 14 W. Va. 157; 26 W. Va. 49. II. — No exception was necessary. — 24 W. Va. 551 ; 26 W. Va. 106; 17 Gratt. 445; 18 Gratt. 426. III. — A jury may be waived in a misdemeanor case. — 31 W. Va. 162; 34 W. Va. 78. ■ IV. — The defendant is a demurrant to the evidence. — 24 W. Va. 553; 18 Gratt. 842. V. — The indictment is sufficient. — 11'Pick. 437; 2 Hawk. P. C. c. 25, § 59; 13 Pick. 362.

<p>1. Constitutíonai. Law.</p> <p>The act passed by the legislature of this State February 4, 1863, styled, "An act to incorporate the Little Kanawha Navigation Company,” and the several acts amendatory thereto, passed, respectively, March 1, 1864, February 28,1866, March 4, 1868, February 19, 1870, and February 28, 1872, are constitutional; and the bonds issued by the board of supervisors of Wirt county by authority thereof are valid.</p> <p>2. Mandamus — CouNty Court — Bonds</p> <p>Mandamus is the proper remedy to compel the County Court of said county to pay the coupons for the accrued interest due thereon.</p>

<p>cited 23 W. Va. 426; 8 W. Va. 743; Whar. Or. Law § 1027; 93 U. S. 465; Code 946, s. 20; 31 W. Va. 507; 33 W. Va. 424; 1 W. Va. 336; 33 W. Va. 455.</p> <p>I. — Bill of exceptions. — Code, c. 131 s. 9, et seq.; Id. c. 160, s. 1; Acts 1891, c. 100.</p> <p>II.— Venue — Goronor.—Const. Art. IX, s. 2; Code, c. 154, s. 1, et seq.; 33 W. Va. 455; 1 W. Va. 336; 23 W. Va. 813; Whar. Cr. Ev. (9th Ed.) §§ 107, et seq.</p> <p>III. — Objections relating to juror. — 33 W. Va. 324.</p> <p>IV. — Indictment.—24 V. Va. 767.</p>

<p>1. Certioratu — Justice of the Peace.</p> <p>In ajiplying to tlie Circuit Court for a writ of certiorari to the judgment of a justice under chapter 110 of the Code, the general rule is, that the petitioner must present his petition within ten days after the judgment complained of is rendered, according to the analogy of appeals in section 164, c. 50, of the Code.</p> <p>2. Certiorari — Justice oe the Peace.</p> <p>But it may, and in proper case should, be granted after the expiration of ten days, and within ninety days after the date of the judgment, when the party otherwise entitled to the writ shall show by his own oath or otherwise good cause for his not having, applied for such writ within the ten days.</p> <p>3. Certiorari — Justice of ti-ie Peace.</p> <p>Upon the presentation to the Circuit Court of a petition for certiorari to remove into said court the proceedings in a civil action before a justice, an agreement between the parties that said pettitioner’s.application for said writ should be argued and discussed by them before said Circuit Court as if the writ of cer-tiorari had been in fact issued, and due return had been made thereto, and the record and in'oceedings and judgment in said civil action before said justice having been transmitted to and removed into said court in pursuance of such agreement, did not bring the case before the Circuit Court for review on its merits, but brought- up the transcript for the purpose of determining whether the application should be granted.</p>

<p>cited 4 W. Va. 186; 10 W. Va. 236; Code, p. 451, s. 55; 2 Sto. Eq. Juris, (s. p.) 1432; Bar. Ch’y Pr. 24, 25 ; 1 High Inj. 239; 4 Johns. Ch’y 375 ; 1 Ban. Ch’y Pr. 782; Bar. Ch’y Pr. 177; 27 Graft. 928; 7 W. Va. 690 ; 26 W. Va. 563; 21 W. Va. 83; Code, p. 882; 20 W. Va. 429, 447 ; Bar. Ch’y Pr. 1061.</p>

<p>1. Partition — Pleading.</p> <p>In a bill in equity for partition it is not necessary for plaintiff to make formal deraignment of title or any deraignment further than is necessary to show how the parties became co-owners and are entitled to partition, describing and locating the premises, alleging that the parties hold the same together and undivided, giving the quantity of estate according to the fact, and the un- . divided interest, or show that which each is entitled to, making the proper parties, and praying for partition, ete.</p> <p>2. Partition — Commissioner in Chancery.</p> <p>When the action and report of the commissioners is excepted to on the ground that they have not set apart and assigned to any one his just and full share, unless it appear that the commissioners misunderstood or failed to perform some duty or acted on a wrong principle, the court will not sustain such exception, unless it be shown by a clear and decided preponderance of evidence that the commissioners have made an unequal and unfair partition.</p> <p>3. A case in Which these rules are discussed and applied.</p>

<p>cited Code, c. 106, s. 1; 18 Gratt. 854; Dr. Att. (6th Ed.) 106a; Dan. Att. §§ 11, 12, 33 ; 21 W. Va. 213; 10 W. Va. 136 ; 25 W. Va. 590, 601; Dr. Att. (7th Ed.) §§ 95, 96; .28 Kan. 822; 2 Wall. 581, 588; 37 Wis. 344; 2'9 W. Va. 779 ; 5 W. Va. 25; 3 .Munf. 176; 10 Gratt; 292; 6 Munf. 176; Dr. Att. § 27a.</p> <p>I. — Appellees had a right to make the motion to quash the attachment. — 10 W. Va. 135 ; Code, c. 106, ss. 23, 19; 4 W. Va. 130; 2 II. & M. 312; 7 Leigh 314; 14 W. Va. 298; 17 Mich. 511.</p> <p>II. — Affidavit for attachment should have stated that the plaintiff’s claims ivere recoverable in the suit at bar. — 10 W. Va. 136,138, 139; 18 Gratt.'854; 1 Mete. (Ky.) 479, 471; 21 W. Va. 213, 217; Dr. Att. (7th Ed.) §§ 87 b, 106 a, 107 a, 113; Dan. Att. §§ 11,12, 27; 1 Tex. 17; 66 Tex. 610.</p> <p>III. — Appellant could not recover in this suit on the second note. —1 Par. Kotes and Bills (Ed. 1863) 244; 2 Dan. Keg. Inst. § 1339 ; 19 Pick. 123.</p> <p>IV. — Affidavit for attachment should have, stated the amount at the least that the plaintiff was entitled to recover. — Cases cited above under Ko. II.; 29 W. Va. 779.</p> <p>V. — Altmeyer could not recover in the case at bar, for or on account of the second and third notes. — Dr. Att. §§ 27 a, 28, 30 and 83.</p> <p>Eorm of Order of Attachments,. Warth’s Code (3d Ed.) page 743; 1 Devised Code, Virginia (1819) page 476, Sec. 5.</p> <p>Ad. Eq. (s. p.) 324, 325' and 326; 21 W. Va. 211; 3 Leigh 306; 2 Dan. Keg. Inst. § 1339.</p> <p>VI.— The facts stated in the affidavit were not sufficient to show conclusively that Caulfield left the State with intent to defraud his creditors.</p> <p>This must be shown conclusively. — 26 W. Ya. 224.</p> <p>It is not shown. — 10 W. Ya. 136,139; 21 W. Ya. 214, 216.</p>