Volume 39 — West Virginia Reports

<p>1. ELECTIONS — BALLOT-CLERKS.</p> <p>While the election-law requires the ballot-clerks to be of opposite politics, the mere fact that such is not the case is not sufficient alone to justify the exclusion of the poll from the count.</p> <p>2. Elections — Commissioners of Election — Ballot-Clerks.</p> <p>If the commissioners of election acting innocently in violation of law appoint two additional ballot-clerks to aid in conducting the election, such misconduct, though a strong suspicious circumstance, is not sufficient to invalidate the poll, unless there is some evidence tending to show that such appointments were corruptly intended to, and did, influence the result of the election.</p> <p>3. Elections — COMMISSIONERS of Election.</p> <p>The return of a poll by the commissioners of election is prima facie the true result of the election and will not be reversed by this Court because of misconduct on the part of the election-officers or other persons, unless it plainly appears that such misconduct changed the result of the election.</p>

<p>I. — Appearance of defendant cures all defects in writ and irregularities in process. — 3 Cr. 496; 18 Wall. 298; 15 W. Va. 609; 80 W. Va. 18, 19; 16 W. Va. 109; 3 W. Va. 386; 1 Wash. 153; 13 How. 150 ; 3 Pet. 459 ; 8 Wheat. 699 ; 4 Crane 428 ; 16 Gratt. 410; 25 W. Va. 692.</p> <p>II. — Injury does not constitute prima facie presumption of negligence. — 25 W. Va. 571; 35 W. Va. 562 ; 9 West C. Rep. 112; 27 Vt. 643; 16 Ill. 198 ; 39 Ill. 451; 40 la. 347 ; 14 Ind. 30 ; 42 Miss. 603 ; 50 Miss. 572 ; 35 Mich. 507 ; 35 Mo. 309 ; 4 Jones L. 432; 8 Nev. Ill; 35 la. 191; 78 Ky. 421: 26 Minn. 434; 39 Ark. 413; 40 Ark. 336.</p> <p>III.— Where stock come upon the track at a point where the railroad company is not hound by statute to fence, it is not in the absence of negligence liable for injury to them. — 26 la. 549 ; 35 Ind. 515; 42 Ind. 173; 30 Ill. 451; 72 Ill. 537; 34 la. 506; 80 Ill. 72 ; 40 la. 337 ; 48 Mo. 558; 72 Ind. 107 ; 2 Am. & Eng. R. R. Cas. 648; 73 Mo. 465; 7 Am. & Eng. R. R. Cas. 558; 79 Mo. 196; 79 Mo. 432; 91 Ind. 295; 93 Ind. 254; 94 Ind. 245 ; 96 Ind. 450 ; 26 Tex. 604 ; 37 Ohio 554; 7 Am. & Eng. R. R. Cas. 588; 73 Mo. 456 ; 50 Miss. 572.</p> <p>cited 35 W. Va. 333; 27 W. Va. 540; 30 W. Va. 740; 1 Am. and Eng. Ency. of Law 621 and note 5; 1 Bl. Judgmts. §§ 307, 308; Code W. Va. c. 110; Id. c. 50 ss. 164,' 174.</p>

I. — The plaintiff haring replied generally to the answer, all of the allegations therein not admitted by the bill nor sustained by the exhibit must be considered as nonproven and, must go for naught. — 27 ~W. Va. 605, Code, c. 125, s. 38. II. — In this cause there is no evidence sufficient to raise a resulting trust. To establish such trust the evidence should be clear. —12 W. Va. 542, 552 ; 7 Leigh 566.

<p>cited 91 Ind. 311; 85 Ill. 88 ; 80 Ky. 403 ; And. Diet. Law 888; 7 Hill 61; 1 Suth. Dam. § 64; 8 W. Va. 568 ; 24 W. Va. 554; 22 ICans. 374; 2 Suth. Dam, § 513.</p> <p>I. — As to admissibility of parol evidence. — 13 Gratt. 705 ; 7 W. Va. 636; 7 W. Va. 289 ; 16 W. Va. 651.</p> <p>II. — Rule as to damages. — Drake Attach. § 179; 37 Ark. 614; Sedg. Meas. Dam. 112, 115; 17 Gratt. 124.</p> <p>III. — As to setting aside verdict. — 33 W. Va. 40; 33 W. Va. 72.</p> <p>IV. — On instructions. — Drake Attach. § 166 ; 13 Gratt. 139; 7 La. 231.</p> <p>V. — As to right of action. — 14 W. Va. 22; 46 Tex. 26; Big. Estop. 476-484; 37 Conn. 148; 81 Ill. 541; 85 Ill. •96; Code, c. 103, s. 8.</p>

<p>Master and Servant — Damages.</p> <p>An employe can not recover from his employer for injuries received by reason of an accident, which could have been averted by the employe’s proper discharge of the duties of his employment. Nor can the personal representative of such employe in such case, if death ensue, maintain an action for damages by reason thereof.</p>

I. — On a motion to strike out all the evidence, the court should consider the evidence which is cts/ced to be excluded with all favor, and draw therefrom all the inferences it woidd be entitled to, if the party making the motion to exclude had demurred to the evidence. — 30 W. Ya. 228.

Thompson Bros, cited Code c. 106, s. 5, 14; Id. c. 124, s. 2; Drake Attchm. §§ 451c, 451a, 451b ; Sath. Stat. Const. § 392; 58 la. 703; 58 Wis. 619; 67 Wis. 653. I. — -The statute requires a garnishee to appear at the next term of the court, and can not be construed so as to make a writ, re-turnablethe second term after its issnuace,good. — Code c. 106, s. 5; 37 W. Ya. 847 ; 10 W. Ya. 130 ; 1 Dev. (N. C.) 397; 50 Mich. 358 ; 58 la. 703; W. Ya. Code, c. 106, s. 14.

<p>1. Taxes — MUNICIPAL Corporations — Injunction.</p> <p>A court of equity will not enjoin the collection of a tax assessment on a town lot to pay for the construction of a sidewalk in front of the same, ordained by the council of an incorporated city or town, on the sole ground that such tax or assessment is illegal; some additional circumstances bringing the case under some recognized head of equity jurisdiction must also appear.</p> <p>2. Taxes — Municipal Corporations — Injunction.</p> <p>The fact, that the statute declares that such assessment made for constructing a sidewalk shall be a lien on the lot, in front of which the same is constructed, does not create such a cloud upon the title as to confer equitable jurisdiction..</p> <p>3. Taxes — Municipal Corporations — Constitutional Law.</p> <p>Section 34 of chapter 47 of the Code authorizing the council of a city or town, where the owner of property adjacent to a sidewalk fails or refuses to pave such sidewalk, to cause the same to be done at the expense of the city, town or village, and to assess the amount of such expense upon such owner, to be colleete'd in the manner provided for the collection of the city, town or village taxes, held not repugnant to the constitution.</p>

I. — On competency of testimony of John Coniff. — 1 Greenl. Ev. (Redfield’s Ed.) § 165; Code, p. 1062, last part of sec. 3 of Act relating to Stenographers. II.— On instruction No. 8, for plaintiff. — 35 W. Ya. 390, 402, 403. III. — On instruction No. 12. — 35 W. Ya. 400, 402. IY. — On right and duty of Court to set aside ver did. — 23 W. Ya. 229, 236; 12 W. Ya. 116. I. — Admissibility of evidence. — 34 Md. 204,. 216 ; Abb. Trial Ev. p. 594, § 32; 30 ÜST. Y. 370 ; Abb. Ot.

<p>cited on tbe Statute of Limitation and Laches; 24. W. Ya. 594 and authorities there cited.</p> <p>cited 23 W. Ya. 522; Id. 718; 18 W. Ya. 286; 46 Fed. Rep. 280; 51 Fed. Rep. 493; 15 Pet. 93; 103 U. S. 756; 1 How. 189; 10 How. 348; 21 IIown 493 ; 4 Wall. 232; 34 W. Ya. 229; 12 Wall. 47; 13 Pet. 107; 102 U. S. 68; 107 H. S. 466; 5 W. Ya. 50; 18 5. E. Rep. 379 ; 23 W. Ya. 182; 20 W. Ya. 265 ; 16 W. Ya. 546; 11 W. Ya. 249; 8 W. Ya. 459; 17 S. E. Rep4 400; 30 W. Ya. 273; 10 W. Ya. 251; Code, c. 125, s. 12 ; 50 Am. Lee. 318; Id. 491; 84 Am. Lee. 582; 15 C.' B. 597; 24 L. J. C. P.. 100; 34 Tex. 125; 50 Ind. 259; 66 111. 112; 7 Am. Rep. 281; 35 W. Ya. 754; 24 W. Ya. 594; 2 Wall. 92 ; 6 Wheat. 481 ; 7 Wheat. 389 ; 21 N. Y. 936 ; Am. Lig. 1893, § 268; Am. Lig. 1892, § 402-5; Am. Lig. 1891, § 418-423; 6 Am. St. Rep. 44; 79 Am. Lee. 324; 2 Me. 147; 13 Mass. 304; 50 Mo. 152; 18 Tex. 446; 33 Vt. 431; 19 Johns. 95 ; 3 Head 540; 14 Gray 511 ; 15 Yt. 490; 17 Johns. 284; 15 Mass. 481; 1' Wheat. 236; 6 Pick. 316; 9 Conn. 34; 20 W. Ya. 497; 25 W. Ya. 751; 26 W. Ya. 54; 27 W. Ya. 468 ; 19 W. Ya. 43-9 ; 3 W. Ya. 536 ; 33 W. Ya. 587; 3 Gratt. 672; 2 Bart. CITy Pr. 265 ; 3 Gratt. 13 ; 9 W* Ya. 339.</p>

I. — As to remedy at law. — 1 Lom. Dig. (2 Ed.) 717. II. — As to office of petitions. — Eule 1, 23 W. Va. 818. III. — As to notice by Com. — Code 1887, s. 4, c. 129; 13 ~W. Va. 441. IV. — Court has a right to re commit cause. — Code, e. 129, s. 3. V. — As to commissioner’s right to refer question to court.— Code, c. 129, s. 6. VI. — As to ambiguity of contract. — 26 W. Va. 460; 31 W. Va. 70; 18 G-ratt. 1. VII. — As to parties right to ratify or reject contract. — Smith’s Mer.

<p>1. OlRCuiT COURT — BOARD OR PUBLIC WORKS — JURISDICTION— \ P-PEAL.</p> <p>Sectiou 07, c. 29, of the Code, in so far as it allows an appeal from the decision of the Board of Public Works to the Circuit Court, is constitutional and valid.</p> <p>2. MANDAMUS.</p> <p>Mandamus is the proper remedy to compel the exercise of jurisdiction by the Circuit Court, which it is erroneously refusing to assume contrary to the express provisions of a constitutional and valid statute.</p>

<p>1. PRINCIPAL AND AGENT — SALE—POWER OP ATTORNEY.</p> <p>Where one by writing empowers another to sell land, implying a cash-sale, and the agent simply transfers the writing to a third person, without payment of purchase-money, this is not a sale.</p> <p>2. PRINCIPAL AND AGENT— SALE — POWER OE ATTORNEY.</p> <p>A mere proposal to sell land does not become a sale until accepted, and notice of acceptance given the proposer.</p> <p>3. Principal and Agent — Sale—Options.</p> <p>In unilateral contracts, called options, the time fixed for acceptance is of the essence of the contract.</p> <p>4. Principal and Agent — Sale—Power oe Attorney.</p> <p>A power of attorney may fix a limit of time within which the agent is to do the act. Where it fixes a reasonable time for doing the act, it must be done by the agent within a reasonable time, in order to bind the principal. e A proposal of sale made under such power must be accepted within a reasonable time from the date of the power.</p> <p>5. Principal and Agent — Sale—Power oe Attorney.</p> <p>One dealing with an agent acting under written power is taken to deal with the power spread out before him, and must inspect it to see whether the agent’s act is authorized by the power.</p> <p>6. Principal and Agent — Sale—Power oe Attorney. .</p> <p>One dealing with a special agent does so at his peril. He must be careful to see that the agent’s authority covers the act he does.</p> <p>7. Principal and Agent — Sale—Power of Attorney.</p> <p>An agent appointed by parol to sell land can not receive purchase-money, unless so authorized by his power.</p> <p>8. Principal and Agent — Sale—Power oe Attorney.</p> <p>A power of attorney merely to sell land implies that the agent shall sell for cash, and he can not sell on credit in the absence of authority contained in such power of attorney.</p> <p>9. Specific Performance.</p> <p>Specific performance being addressed to the sound discretion of the court, the party asking it must have been ready, willing, and prompt in the performance of those things incumbent on him, and where he has not been so, and it would impose hardship and be inequitable upon the other party, specific performance will be refused.</p>

<p>cited 31 W. Ya. 9 ; 6 W. Ya. 251; 6 Band. 681; Fry Spec. Perf. §§ 403, 404; 5 Munf. 308; 3 Pom. Eq. Juris. 456; 2 Min. Inst. 773-775; 7 Waite Act. & Def. 25; 10 W. Va. 12; 6 W. Ya. 747; 5 Laws. B. B. & P. §§ 2614, 2615; 12 Leigh, 70, 79, 84; Bar. Ch’y Pr. 120; 2 Lom. Big. 95, 100; 23 W. Ya. 107; 21 W. Ya. 481; 36 W. Ya. 350.</p> <p>I. — Retaking depositions. — 29 W. Ya. 263,2 Syl.; 17 G-ratt. 187 ; 4 Monr. B. 280; 1 Beasley’s B. 108.</p> <p>II. — Removal of cloud. — 21 Conn. 488.</p> <p>III. — Equity jurisdiction over statutes of frauds and application to case at bar. — Brown Stat. Frauds, §§ 437, 448; 2 Mip. Inst. 903, 909, 4 n.; Sto. Eq. J ur. § 759 ; 17 W. Va. 336 ; 31 W. Va. 9; 20 VV. Va. 394, 404.</p> <p>IV. — Nature and extent of proof requisite. — 9 Wall. 1; 1 Young & Collyer, Ch’y R 147 ; 53 Pa. 332 ; 6 W.' Va. 256; Code W. Va., c. 125, s. 59; 51 Pa. St. 51.</p> <p>V. — Questions relating to possession. — 1 Sands Ch’y 46; 1 Mc-Cord Eq. 32; Hoff Cli’y 470; 9 Watts 106; 1 Gratt. 211; 31 W. Va. 14; 6 Watts 464; 37 W. Va. 776; 36 W. Va. 71 (2) 72 (5); 1 Gratt. 207 (bottom.)</p> <p>VI. — Laches not applicable where vendee is in possession. — 3 Jones (H. C.) Eq. 84; 3 Paige (H. Y.) 446 ; 2 Lom. Big. 103; 2 Scho. & Sufr. 604; 10 W. Va. 677, Syl. 6; 10 Wriglit 537; 2 B. Mon. 196; 3 Edw. 213; 12 Allen ; White and Tudor’s Lead. Cas. Eq. part 2, 4th Am. Ed. p. 1137; 32 W. Va. 479, 480.</p>

I. — The right of parties interested in proposed town to appear and contest validity of proceedings. — 30 W. Ya. 81; Code, . c. 47, s. 6 ; 36 W. Va. 268. II.- — -Majority of all the qualified voters residing ivithin the proposed territory must vote for incorporation. — Code, c. 47, s. 8, 9, 48 ; Id. e. 39, s. 15. III.- — Ms to the constitutionality of the Act conferring poiver upon Circuit Courts to incorporate towns. — Const.

<p>cited 6 Otto 704; Code, c. 139, s. 11; Id. c. 136, s. 4; 37 W. Va. 481; 25 W. Va.'76l; 34 W. Va. "603; 2 Dam. Ch’y Pr. £57; 6 Gratt. 107; 1 Rev. Code, c. 128, s. 38; 28 W. Va. 601, 607; 27 W. Va. 511, 527; 28 W. Va. 322; 12 Pet. 164; 20 How. 541; 52 Miss. 457; 108U. S. 292; 7 Rob. Pr. (App.) 1087; Dest. Rem. Gas. § 110 aud n.; Dill. Rem. Caus. § 87.</p> <p>cited 17 How. 144; Sto. Eq. PI. § 354; 5 Leigb 172-178; 17 Gratt. 96; 95 U. S. 200 ; 1 I-I. 161; 99 U. S. 201; 23 Gratt. 223; 7 Gratt. 112; 7 Leigh 487; 106 IT. S. 391; 26 W. Va. 710; 25 W. Va.108; 4 Leigh 341; 27 W. Va. 520; Id. 250 ; Sto. Eq. PI. 364-390; 12 Pet. 164; 37 W. Ya. 222-225; 22 W. Ya. 180; 24 W. Ya. 239, 244; 37 W. Ya. 210-225; 27 W. Ya. 225.</p> <p>cited 1 Johns. Ch’y 405: 1 Paige 35 ; 14 Pick. 374; 118 Mass. 360 ; 226 Graft. 706 ; 18 Yer. 384; 56 N. II. 105 ; Code, c. 129, s. 3; 3 Bland Ch’y Mod. Rep. 351, 600; 1 Edw. Ch’y (N.'Y.) 46; Sto.' PI. § 364, 378, 379, 387; 2 Paige 360; 23 Graft. 222; 21 W. Ya. 469 ; 9 Pet. 416; 2 Yes. Jr. 11; 17 Wall. 78; 94 U. S. 806; 2 Sch. & Lef. 607; Sto. Eq. PI. § 410; 10 Wheat. 146; 1 How. 189, 161; 99 U. S. 201; 2 Watts & S. 255; Sto. Eq. Jur. § 1520; 42 Am. Dec. 753; Bar. Ch’y Pr. 90, 118; 1 Bar. Ch’y PI. 110; 5 Leigh 164; 22 Am. Rep. 320; 1 C. E. Green 251; 14 Am. Dec. 774, 777, 778 and notes; 6 Pet. 61.</p> <p>Youngs, cited 31 W. Ya. 540; 24 W. Va. 185; Dam. Ch’y Pr. 1701; 21 W. Va. 470; 28 28 W. Ya. 604; 2 Pom. Eq. § 634, 640 ; 14 Am. Dec. 777 and n.; Free. Judgm’ts '202; 1 Mete. (K’y) 146; 5 Leigh. 627 ; 2 Rand. 93.</p>

<p>cited Code (1887) c. 43, s. 31; 32 W. Va. 6; 3 Graft. 632 ; 29 W. Va. 407; 17 8. E. Hep. 536; Abb. Tr. Br. 42; Pierce R’ds 159-161, 496; 2 Wood R’y 761; Mete. .(Mass.) 563; 1 Wood R’y 601; Wood May, Dam. 141; Sedg. Meas. Dam. (5th Ed.) 155; 3 Suth. Dam. §§ 1038, 1039, 1041; 1 Suth. Dam. § 9 et seq.; 1 Suth. Dam. § 2; Code (1891) c. 44, ss. 24, 27 ; 33 W. Va. 14.</p> <p>cited Code (1891) c. 44, ss. 24, 7 ; 33 W. Va. 307 ; Id. 39.</p>

<p>1. Jurisdiction — Equity.</p> <p>When a court of equity takes jurisdiction of a cause for one purpose, it will go on and dispose of the questions involved to avoid a multiplicity of suits.</p> <p>2. Option.</p> <p>It is the general rule that, where an option to be exercised or a condition to be performed is not limited by the agreement, then such option must be acted upon and condition performed or abandoned within a reasonable time.</p> <p>3. Option.</p> <p>A party having an option to purchase the timber growing upon a tract of land, which is not limited as to time by his agreement, may by his own acts and by acquiescence in the acts of another in cutting and removing such timber, and by assisting in the removal of the same, pointing out the timber to the men engaged, in cutting it, and raising no objection to the disposal of such timber by the party asserting an adverse claim thereto, estop himself from asserting any claim under his option.</p> <p>4. Option — Equity.</p> <p>Equity is the proper forum lin which to assort such equitable estoppel.</p> <p>5. Injunction.</p> <p>A court of equity will enjoin a mere trespass to real property where good title in the plaintiff is alleged, and it is also alleged in the bill that the trespasser is insolvent, because in such case the party could have no adequate remedy at law.</p>

I. — On the demurrer. — 13 Am. & Eng. Ency. Law 1069 and notes; 1 Sto. Eq. Jur. 92,93; 1 Eonb. Eq. c. 1, § 3, p. 33; 2 Ind. 474; 32 Ind. 142; 1 Ear. Ch’y Pr. § 104. II. — As to incompetency of witnesses, Emma Davis and Thornton Ellis, as to any transactions and communications with the deceased, Malone Ellis. — 25 W. Va. 251; 32 W. Va. 14. III. — The proof must correspond with the allegations of the hill. —25 W. Va. 830 ; 5 W. Va.135; 19 W. Va. 360-64; 11 W. Va. 217.

1.— The Circuit Judge erred in not prescribing the condition of the increased and additional injunction bond mentioned in the said order of the Circuit Court.- — 'Code, e. 133, s. 10. 2.— The Circuit Judge erred in requiring an additional injunction bond in the penalty of only $12,000, instead of at least in the penalty of $70,000. Copt.

cited 23 W. Va. 452; 38 W. Va. 438; Woods, Landlord and Tenant, 704; Id. 353; Id. 688; 2-South 552; 4 Bos. & Pall. 290. I.— Where the evidence is certified, instead of the facts proved, the Appellate Court will consider it as upon a demurrer to evidence hy the exceptor. — 6 W. Va. Ill; 16 W. Va. 308; 21 W. Va. 709; 24 W. Va. 186.

<p>cited 36 W. Va. 613; 148 U. S. 172; 18 W. Va 764; Code (1887) e. 30, s. 18; 19 W. Va. 154; 34 W. Va. 207, 215; Code, c. 81, s. 25; 19 W. Va. 233; Id. 155; Cool. Tax. 344, 354,355; Black. Tax-Tit. §§ 391, 451, 559, 569; Cool. Const. Lim. (5th Ed.) 454, *369; Black. Tax-Tit. (5th Ed.) §§ 756, 790, 847; Code, c. 31, s. 17, 18, 19; 19 Me. 368; 9 Gratt. 194; 30 W. Va. 178; 11 Plow. 414; Cool. Tax. 340; 6 Wall. 268; 2 Ohio 504; Dev. Deeds § 1385; 31 la. 578; 93 IT. S. 390.</p> <p>Code. c. 31, s. 25; 19 W. Va. 231; 10 Gratt. 436; Code, c. 31, s. 6 ; 34 W. Va. 215 ; 35 W. Va. 154; 36 W. Va. 613 ; Black. Tax-Tit. 415; Cool. Const. Lim. (6th Ed.) 447, 453, n. 1; Id. 452; 22 ¿T. E. Rep. 1022.</p>

<p>1. CeetioRARI — Justice of the Peace.</p> <p>When a party is prevented by some adventitious circumstance beyond his control from applying for a writ of ceriiorari to a judgment of a justice within ten days after such judgment is rendered, the writ may be awarded after the expiration of the ten days and within ninety days. See facts of the case for the application of the rule.</p> <p>2. New Trial.</p> <p>Where the trial-court improperly excludes evidence from the jury offered by the party against whom the verdict is found, such ruling constitutes ground for a new trial, unless it is -manifest from the record that, notwithstanding such misruling, the party complaining could not have been prejudiced thereby, and that the verdict conforms to the substantial justice of the case.</p> <p>3. Corporations — Parties.</p> <p>When a corporation is a party, the proper mode of designating it is as a corporation, and by its corporate name.</p>

<p>1. Lunatic — Committee—Notice.</p> <p>A county court or its clerk can not appoint a committee for a person as insane without notice to him. Such an appointment is void and confers no authority. Dent, Judge, dissenting.</p> <p>2. Lunatic — Committee.</p> <p>Until chapter 87, Acts 1891 (Code 1891, c. 118, s. 1) a committee could not resign.</p> <p>3. Lapse of Time — Limitations op Actions — Presumption—Purchase-Money.</p> <p>No time bars the right, either under the statute of limitations or presumption of payment, of a vendor to recover purchase-money for land, if he has not parted with the legal title.</p> <p>4.Lapse op Time — Limitations op Actions — Pkesumption—Pur-chase-Money.</p> <p>The statute of limitations has no application to bar a lien for purchase-money reserved in a conveyance of land. Though action on a note given for such purchase-money be barred, so as to defeat its collection out of other property of the debtor, the lien against the particular land conveyed is not barred. Presumption of payment from lapse of time and laches, unless repelled and explained, will defeat enforcement of such lien.</p>

<p>1. CRIMINAL Jurisdiction and Proceedings — Perjury—Evidence.</p> <p>In all cases other than a criminal trial for perjury it is only necessary to introduce in evidence such parts of the record of another proceeding as relate to the matters in issue. Section 4, c. 158, of the Code requires the consent of the accused, before a part only of such record may be given in evidence in a criminal pros, ecutiou for peijury.</p> <p>2. Criminal Jurisdiction and Proceedings — Slander.</p> <p>In actions of defamation it is not necessary that a plea of justification should contain an allegation, that the slanderous words were spoken or uttered “with good motives and for justifiable ends.”</p> <p>8. Criminal Jurisdiction and Proceedings — Perjury.</p> <p>A plea justifying a charge of perjury must- allege, that the matter or thing, about which the false words were spoken, was material to the issue ; otherwise it is bad.</p> <p>4. Criminal Jurisdiction and Proceedings.</p> <p>Whether a matter is material to the issue depends on the question whether its truth or falseness would afiect the issue; and, if the truth or falseness would not affect the issue, the matter is not material.</p> <p>5. Criminal Jurisdiction and Proceedings — Perjury.</p> <p>To sustain a plea justifying the charge of perjury, defendant must prove, (1) that the evidence was false; (2) that it was about a matter or thing material to the investigation; (8) that it was willful or corruptly, knowingly and intentionally given contrary to the truth.</p>

<p>cited Code, c. 86, s. 6; 3 W. Ya. 71; 22 W. Ya. 373; 26 W. Ya. 484; 2 Bur. Ch’y. Pr. 731.</p> <p>cited Code (1819) c. 131, s. 6 : Code (1868) c. 86, s. 7; 1 Sto. Eq. Juris. § 546; 21 W. Ya. 76; «,28 W. Va. 385; 22 W. Ya. 306; Suth. St. Con. § 239; 22 W. Ya. 380; 26 W. Ya. 485.</p>

<p>cited 12 W. Va. 350; 94 ü. S. 580, 584; 18 Wall. 476; 22 W. Va. 673; 23 W. Va. 439; 24 W. Va. 3 99.</p> <p>cited 37 W. Va. 242; 34 W. Va. 583; Well’s Mar. Worn. 369 § 113 ; 11 Mich. 482; 17 Gratt. 503 ; 34 W. Va. 128 ; 18 W. Va. 75; 22 W. Va. 348 ; 36 W. Va. 191.</p>

<p>cited Acts 1872-3, c. 117; 71 la. 262; 23 la. 344; 133 Ill. 197; 36 La. Ann. 843; 35 La. Ann. 839; 27 W. Ya. 769 ; 1 Pom. Eq. (2d Ed.) § 236.</p> <p>cited Hew. Eject. 278 et seq.; Hutch. Land. Tit. § 470 ; 2 Gratt. 319; 18 W. Ya. 598; 27 W. Ya. 770; Hutch. Land Tit. p. 143; 19 W. Va. 123; 23 W. Ya. 675, 618; 24 W. Ya. 173; 17 W. Ya.43; 18 W. Ya. 763; 16 W. Ya. 345 ; Dev. Deeds, § 1394, n. 4; 19 Yt. 49; Dev. Deeds, § 1419, n. 5 ; Id. § 1420; 4 Yt. 316; 25 Me. 362; 5 Gratt. 120; 14 Pet. 322; 45 Me. 270 ; 24 Mich. 360; 31 N. II. 575 ; 69 Me. 520; 19 W. Ya. 230; 18 W. Ya. 759.</p>

I. — Trustees holding legal title must he made parties to a bill seeking to sell the land before the Court can acquire control over or right to sell. — 16 W. Va. 724 ; 23 W. Va. 664; 35 W. Va. 705. II.— Where the proper parties are not made and this appears on the face of the record the Supreme Court will reverse and remand, although the question ivas not raised in the court below. — SB W. Va. 155.

<p>cited 18 W. Va. 598; 4 Iff. & M. 57; 11 Gratt. 572; 27 W. Va. 762; Code, c. 71, s. 3; 5 Gratt. 110,119; 8 Leigh 162; 7 W. Va. 36, 40; 1 Ohio 180; Code, c. 90, s. 20; 25 W. Va. 238 (p’t 1, Syll.) 243 ; 19 W. Va. 408 ; 24 W. Va. 362; Code, c. 45, s. 33; 102 IT. S. 333; 10 Gratt. 445 ; 8 Leigh 697 ; Code, c. 112, s. 11, 12; Id. c. 131, s. 9.</p> <p>cited 16 W. Va. 110; 17 Wis. 169; 22 Wis. 120, 127; 27 W. Va. 662 (p’ts 6, 7, Syll.) 669-671 ; 116 Pa. St. 194; 23 W. Va. 194; 11 Gratt. 587; 22 W. Va. 120, 126, 127; 15 Am. & Eng. Enc. L. 1060; 4 Leigh 327; 12 W. Va. 183; Code, c. 45, s. 33.</p> <p>cited 30 W. Va. 27; 26 W. Va. 455 ; 18 W. Va. 579.</p>

<p>cited Acts 1893, c. 24, s. 19; Acts 1891, c. 94; Acts 1872-3, c. 184, s. 2, 3; Id. s. 12, 13; Code (1891) c. 105, s. 17; 7 W. Va. 114; 2 W. Va. 441; 24 W. Va. 387; Code, c. 130, s. 14.</p> <p>cited 29 W. Va. 633 ; Acts 1872-3, c. 134, s. 1; Const. Art. XIII. s. 4.</p>

<p>cited Kell. Cont. Mar. Worn. 135, 136, 157 ; 1 W. Ya. 205 ; Acts 1891, c. 109, s. 1; 13 W. Ya. 573, p’t 11, Syll.; 11 S. E. Rep. 766; 10 W. Ya. 174; Acts 1891, c. 66, s. 1; 90 Am. Dec. 230 ; 36 Ark. 360; 9 S. E. Rep. 226; 13 Ind. 225; 19 la. 236, 242; 20 Hun 472; 19 Hun 358; 9 Am. & Eng. Ency. L. 800; Code, e. 71, s. 1; 30 W. Ya. 103; Bl. L. Diet. (Gift) 539.</p> <p>I. — Detinue is in tort. — 5 Am. & Eng. Enc. Law, 653 (H. 2.)</p> <p>II. — Action at lato can not be maintained against administrator as suck, for wrong committed by him. — 54 la. 557; 66 Ala. 266; 2 MeC. C. C. 332; 1 Holmes O. C. 261; 14 Pet. IJ. S. S. 0. 283, 290 : 28 Ohio St. 134, 141; 62 Miss. 390 ; 70 Me. 308.</p> <p>III.— Widow can not maintain detinue against personal representative. — 9 Am. & Eng. Enc. Law', 795 (n. 10) 798, 800 (n. 8) 799 (u. 17); 27 W. Ya. 759; can not sue after termination of coverture. — 24 Am. Rep. 27, 29, 30; 9 Am. & Eng. Ency. 795 ; can not in equity compel a, personal representative to complete an unperfected gift. — 7 Am. & Eng. Ency. Law, 335 (n. 5); rights of creditors superior to those of donees. — 5 Am. & Eng. Ency. Law, 307 (n. 1); plaintiff must show gift to have been valid. — § 1, c. 72, Code; 28 W. Va. 360, 371, 362, 372; can not go outside of facts shown in bill of exceptions. — 3 W. Va. 394.</p>

I. — Instructions not based on evidence irrelevant. — 10 Gratt. 13; 11 Gratt. 587; 31 W. Va. 683 and 684; 10 Gratt. 236; 26 Gratt. 594 ; 1 Bart. L. P. 2, 656, note 5.' II. — The established facts in the case do not justify charge of negligence against defendant. — 54 Am. and Eng. R. cases, 640 and cases cited. III. — Defendant has right to prescribe reasonable rules for its business. — Bns. Law Pers. Iuj. § 156 and cases cited.

<p>1. Attachment — Erroh.</p> <p>Where the affidavit for an order of attachment states that the plaintiff is justly entitled to recover at the least eight hundred and forty dollars and twenty four cents, and the clerk in issuing the order of attachment requires tbe officer to attach and take into his possession the estate of the defendant sufficient to pay one thousand and five hundred dollars, and under said order of attachment property is taken into possession,,the mistake of the clerk in issuing such order of attachment is not such a clerical error as may be corrected on motion, and such attachment should be quashed on motion of the defendant.</p> <p>2. Attachment — Affidavit—Bond—Lien.</p> <p>Under section 2 of chapter 106 of the Code more than one attachment may be issued upon the same affidavit and bond, and, if the second order of attachment is regular in all respects, and properly levied, it will create a valid and binding lien upon the property levied upon under it, although the first attachment may be quashed for irregularity.</p> <p>8. Attachment — Lten.</p> <p>A valid lien by way of attachment created by levying a proper order of attachment upon personal property will take priority over a claimant under a deed of trust executed and recorded in the state of Kentucky, but which has never been recorded in this state in the county where the property is located.</p>

<p>Costs — Ekroneous Judgment — Remedy—Writ oe PROHIBITION.</p> <p>Where a Circuit Court renders judgment for costs in violation of section 6, c. 138, of the Code (1891): “In any personal action not on contract, which might be brought and prosecuted to judgment in a justice’s court, if a verdict be found for the plaintiff, on an issue or otherwise, for less damage than fifty dollars, he shall not recover, in respect to such verdict any costs, unless the court enter of record, that the object of the action was to try a right besides the mere right to recover damages for the trespass or griev-anee in respect of which the action was brought, or that the trespass or grievance was willful or malicious.” It is in excess of the legitimate power of the court; and a writ of prohibition isa proper proceeding to arrest the execution of the judgment, so far as it was rendered for such costs.</p>

<p>1. Rescission.</p> <p>Where an agreement is rescinded, the general rule is, that it must be rescinded entirely, and the parties be placed as near as may be in statu quo.</p> <p>2. RESCISSION.</p> <p>Where the rescission is made on account of the vendor’s default the general rule is, that the vendee is entitled to have the purchase-money paid by him with its interest returned, also to be paid for permanent improvements made in good faith ; but he is to be charged with the'reasonable rents and profits after deducting the amount paid for taxes, and is also to be charged for any waste by him committed.</p> <p>3. Rescission.</p> <p>A case in which these principles are applied. Sequel to Worth- . ington v. Staunton, 16 W. Va. 208.</p>

I. — Newly discovered evidence. — 27 W. Ya. 503; 35 W. Ya. 418; 32 W. Ya. 487. II. — One who has failed to apply for relief can not first raise the issue of surprise by evidence on motion for a new trial. — 16 Am. & Eug. Ency. L. 542. I. — A person on the train after his ticket expires and who refuses to pay fare may be ejected. — 2 Wood’s Ry. Law §§ 347, 352; Iintcli. Carr. §§ 575, 576; Thomp. Carr. Pass. 70,71; 34 W. Va. 65; 13 Am. Rep. 617; 18 Am. & Eng’.

I.— When claim of original plaintiff is satisfied order to that effect shoidd he entered; but suit should not be dismissed. — 9 W. Ya. 154. II.— Where other judgment-creditors have become parties, their rights must be adjudicated before suit is dismissed. — 27 Gratt. 229 ; 3 W. Ya. 26; 5 W. Va. 187; 23 W. Ya. 656, 662; Code (1891) c. 139, s. 1, 5, 7 ; Id. c. 127, s. 11, 12. cited 32 W. Ya. 567; 30 W. Ya. 390.

<p>cited 20 W. Ya. 713.</p> <p>cited 27 W. Ya. 875 ; 31 W. Ya. 355; 1 Green]. (11th Ed.) § 197; Bos. Crim. Ev. 54; 20 la. 267; 98 Pa. 398; 86 lud. 104; Abb. App. Dec. 362; 55 N. T. 565; 17 Ala. 618 ; 62 Me. 127; 36 Ohio St. 626; 37 W. Ya. 744.</p>

<p>1. Gbant — Inclusive Survey.</p> <p>A grant from the commonwealth of Virginia upon an inclusive survey issued under act of June 2, 178S, including within its bounds prior claims therein reserved, passes no right or title whatever to the lands covered by such prior claims, (p. 435.)</p> <p>2. Grant — Ejectment—Burden of Proof.</p> <p>A. plaintiff in ejectment, to recover under such a grant, must, in addition to showing the exterior boundaries of the grant, locate the specific reservations, if any, therein, and, as to a general reservation, must show and locate prior claim or claims in quantity sufficient to equal such general reservation, excluding the land of the defendant. The burden is then on the defendant to show that his land is within the reservation of the grant, (p. 439.)</p> <p>3. GRANT.</p> <p>Certainty required in entries discussed, (p. 440.)</p>

<p>1. Deed op Trust — Parties.</p> <p>In a suit under section 7, c. 139, Code 1891, to subject land to a judgment-lien if there be liens thereon by deeds of trust, the trustee and creditors therein must be made formal parties; and they do not become quasi parties so as to affect their rights by notice to lien-holders.</p> <p>2. Deed op Trust — Waiver.</p> <p>One will not be held to have waived a deed of trust on land and be compelled to look to merely personal security of a third party, unless the waiver be express, or the intent to waive be very clear and plain.</p> <p>3. Contract — INDEMNITY—ActioN.</p> <p>If one undertake to indemnify another against liens upon his land by paying them and fail to pay them, an action at law or in some cases a suit in equity may be maintained by the party indemnified against the other party for the breach of such undertaking before payment of such liens by the covenantee.</p> <p>4. Equity.</p> <p>Where a court of equity has all the matters involved and all the parties interested before it, though a liability would fall on one person or property first, the court will in the first instance place . it on the person or property ultimately liable thereto.</p>

<p>1. Fraudulent Conveyance —Jurisdiction —Equity —Lien — Debtor and Creditor.</p> <p>Under section 2, c. 133, Code, a creditor before obtaining judgment may sue in equity to avoid a fraudulent transfer of his debt- or’s property and, if successful, has a lien from the commencement of his suit.</p> <p>2. Fraudulent Conveyance — Jurisdiction — Equity — Lien — Debtor and Creditor.</p> <p>After a grantee in a fraudulent conveyance has re-conveyed the property to the debtor (grantor) equity has no jurisdiction -of a suit by a creditor to subject the property in advance of lien by judgment or otherwise merely because of such fraudulent conveyance.</p> <p>3. Deed —Presumption—Remitter.</p> <p>A deed must not only be delivered by the grantor but must also be accepted by the grantee. Acceptance may be express by signing the deed or otherwise or may be implied from circumstances. The assent of the grantee will be presumed, where the deed is beneficial to him, until dissent appear. Where dissent or disclaimer appears, the deed is inoperative, and the title to the thing granted reverts to the grantor by remitter from such disclaimer.</p> <p>4. Fradulent Conveyance — Jurisdiction—Equity.</p> <p>Where such a fraudulent deed is made but is disclaimed by the grantee, equity has no jurisdiction of a suit brought after such disclaimer by a creditor of the grantor to subject the property to debt, in advance of judgment, merely because of such deed.</p> <p>5. Deed — Registry.</p> <p>A deed is good between the parties without registry, as registry is only to protect subsequent purchasers from the grantor for valuable consideration without notice and creditors; and therefore the registry of a deed without the knowledge or consent of the grantee will not bar him from disclaiming it.</p> <p>6. Deed — Jurisdiction—Equity.</p> <p>A transfer frpm one joint debtor to another will not give equity jurisdiction to entertain a suit by that creditor of the grantor in advance of lien by judgment or otherwise to subject the prop" erty to his debt.</p>

<p>Syllabus same as in Guggenheimer v. Lockridge (decided this day) 19 S. E. Rep. 874.</p>

I. — The corpus delicti must be proven; and the guilt of the act must be proven to attach to a particular person. — -1 Bish. Grim. L. (4th Ed.) § 204-208, 285-295, 430-442, 1097, ...1110.; .101 Pa 886.; 76 Pa. 340; 43 Miss. 480; 1 Cliff. 25; 4 Crim. L. Mag. 902; Wills Cir. Ev. (6th Am. Ed.) 198 ; 26 W. Ya. 116, 123; 4 B. & A. 123; Wills Cir. Ev. c. 7, s. 1; Id. 126; Id. 80; 22 S. W. Rep. 452! II.— Verdict not sustained by the evidence. — 1 Greenl. Ev. (15th Ed.) § 13; Whar.

<p>1. Indictment — Felony.</p> <p>An indictment which does not charge the offence to have been ' ' “feloniously” committed, is not an indictment for a felony.</p> <p>2. INDICTMENT — RECORD—GRAND JüRY.</p> <p>It is sufficient, that the record shows, that the indictment found is for either a felony ora misdemeanor; but one of these terms can not be used interchangeably for or construed to mean the other.</p> <p>3. Indictment — Record—Grand Jury.</p> <p>When the record fails to how the finding of the indictment by the grand jury, the judgment will be arrested and the indictment quashed.</p>

<p>cited Code, c. 135; 5 W. Va. 510; 22 W. Va. 771; 2 Graft. 568; 1 Dish. Crim. L. § 1041-1044; Am. Crim. L. § 573-501; 2 Wliar. Ev. § 1226, 1323; Cool. Con. L. 296-298; 5 Am. Rep. 511 ; 6 Am. St. Rep. 757; 21 Am. St. Rep. 266; Id. 790; 3 Am.. St. Rep. 213; 1 Dish. Crim. L. § 1012-1047.</p> <p>cited Art. VIII, s. 3, Const.; section 1, c. 135, sub-section 10, Code; section 16, c. 152, Code; An.d. Law Diet. 256; 25 Graft. 853; 69 N. Y. 109; section 7, c. 159, Code; 5 W. Ya. 510; 22 W. Ya. 771; 31 W. Ya. 390, 398; Code, c. 152, s. 15.</p>

<p>Where an injury is the combined result of a horse becoming suddenly frightened and shying away from a pilo of rock beside the roadway, and the failure of the County Court to provide a suitable guard rail along the approach to a bridge, the county is liable for the damages sustained by reason thereof.</p>

<p>DAMAGES — RAILROAD COMPANIES.</p> <p>Where the' proper official of a railroad company fails to inform a conductor of a change in its rules and regulations as lo the sale of tickets and the stoppage of its trains, aud such conductor acting through want of the necessary information wrongfully refuses to carry a passenger to his destination and ejects him from the train, the company is liable to such passenger in an action on the case for the damages sustained by reason of the wrong committed.</p>

<p>1. Fieri Facias — Fixe—Misdemeanors.</p> <p>A writ of Fieri Facias upon a judgment of a Circuit Court for a fine against a person convicted of a misdemeanor ought to run against goods and chattels and real estate.</p> <p>2. Fieri Facias — Fixe—Misdemeanor—Married Woman.</p> <p>Such execution against a married woman may be levied upon her separate estate, personal or real.</p> <p>3. Husband and Wipe.</p> <p>Torts by wife; liability of husband and wife discussed.</p>

<p>Jurisdiction — Supreme Court oí? Appeals,</p> <p>An infant, after he has attained the age of twenty one years, files his petition asking to be permitted to show cause iu this Court against a decree under section 7 of c. 182 of the Code. Held, that this Court has no original jurisdiction in such case, and his application is refused.</p>

<p>Assumpsit — Plb a.dtng — A v erm ent.</p> <p>In au action of assumpsit to recover damages for defective machinery which plaintiff had purchased, paid for and returned as useless, the plaintiff must charge the promise, that the machinery would perforin the work, for which it was intended, positively not by way of recital.</p>

<p>I . — School Law. — Secs. 2, 6, 7, 8, 9, 14, 20, 23, 84, 38, 39, 45, 59, 66, c. 45, Code.</p> <p>II. — Superceding Levy. — Ck. 72, Acts 1875-, App. 1062, Code.</p> <p>III. — Parol evidence not received to contradict record. — 20 Am. & Eng. Ency. Law, 511.</p> <p>IV. — No particular method of notice required. — 136 Ill. 478; 12 Minn. 17; 25 Conn. 556.</p> <p>Y. — JSntry ■and signature of minutes directory. — 74 Am. Dec. 305.</p> <p>YI. — Board may purchase apparatus. — 20 W. Ya., 360, 366 ; 9 Am. & Eng Corp. Cases, 144; 30 Am. Hep. 447.</p> <p>YII. — School orders may be made payable at future dates. — 38 W. Va.</p> <p>VIII.— Taxes paid over not subject to injunction. — 59 N. Y. 21,</p> <p>IX.— Voluntary payment of taxes-, can not be recovered by suit. — 18 Am. & Eng. Ency. Law, 220.</p> <p>X. — Amended and supplemental bills; rules as to filing. — Code, s. 12, c. 125; 1 Bar. Ck’y. Prac. 105.</p> <p>XI. — Plaintiff must mvke out his ease by all material allegations. — 37 W. Ya. 571.</p> <p>XII. — Bill by taxpayers to restrain collection of taxes. — 1C W. 'Ya. 527.</p> <p>XIII. — Powers of board of education. — 21 Am. & Eng. Ency. Law, 832-4 and notes.</p> <p>cited Code, c. 45, s. 6, 23, 34, 38, 45; 15 Am. & Eng. Ency. Law 1234; Id. 1039; Id. 1290; 20 W. Ya. 360 ; 5 Law. Rep. 546; 30 Ami Rep. 450; Id. 447; 25 la. 447; 119 Ind. 213 ; 20 Law Rep. 136; 123 lad. 1; 18 S. E. Rep. 588; 28 X. II. 61; 21 Am. & Eng. Ency'. Law 800 (n. 4); 30 W. Va. 424; 5 Minn. 280; 29 Ohio St. 419; 21 Am. & Eng. Ency. Law 793, 794.</p>

<p>1. Fra.tjdui.ent Conveyances — Preferences—Conflict of Statutes.</p> <p>Clause of section 2, e. 74, of the Code, which is in these words, to wit: — “And every gift, sale, conveyance, assignment, transfer or charge made by an insolvent debtor to a trustee, assignee or otherwise giving or attempting to give a priority or preference to a creditor or ci editors of such insolvent debtor, or Which provides or attends to provide for the payment in whole or in part of a creditor or creditors of such insolvent debtor to the exclusion or prejudice of other creditors, shall be void as to such priority, preference or payment so made or attempted to be made; and all such gifts, sales, conveyances, assignments, transfers and charges shall be deemed void as to such priority, preference or payment; and every such gift, sale, conveyance, assignment, transfer or charge shall be deemed, taken and held to be made for the benefit of all the creditors of such debtors, - * *” — does not avoid such gift, sale, conveyance, transfer or charge in tofo but only defeats the preference and preserves such gift, sale, conveyance, assignment, transfer or charge intact for the benefit of all the creditors of the insolvent debtor.</p> <p>2. Sale.</p> <p>The sales of personal property, when situated at the place of the domicile of the vendor, are governed by the law rei sitae, not by the laws of the state to which it may thereafter be removed.</p> <p>S. FRAUDULENT CONVEYANCES — PARTNERS AND PARTNERSHIP.</p> <p>A transfer of partnership property situated in this state by a member of an insolvent Arm to a private creditor with full knowledge to satisfy an individual obligation is fraudulent and void as to the social creditors.</p>

<p>-, IT, 1. AMENDMENT — PRACTICE</p> <p>A variance between the writ and declaration may be amended at any time before judgment, if substantial justice maybe done thereby.</p> <p>2. PARTNERS AND PARTNERSHIP — PDMADINO—PRACTICE.</p> <p>At coinmon-law partners can not be sued otherwise than in their individual names, and the allegation of a partnership name is merely for the purpose of identification and description, is immaterial and need not be proven; and hence the unnecessary use of it may be regarded as mere surplusage.</p> <p>3. Attachment — Affidavit.</p> <p>“At least” used in an affidavit for an attachment is synonymous with and fairly equivalent to the phrase “at the least,” as used in the statute relating to such affidavits.</p>

I.— The power to relieve the indigent sick is inherent in every municipal corporation. — 4 La. Ann. 42; 36 Mich. 474; 1 Mich. 526; 46 Ala. 411; 27 La. Ann. 101; 6 N. E. Rep. 1; 106 Ind. 129. II. — Municipal corporations can not refuse to pay for work done for them under contract, unless such work is contrary to statute and public policy. — 6 L. R. A. 318; 2 Dill. Mun. Corp. (4th Ed.) 531; 47 Ind. 407; 14 Pa. St. 81; 28 N. E. Rep. 400 ; 25 Pac. Rep. 1020.

<p>1. FRAUDULENT CONVEYANCES — DEBTOR AND CREDITOR.</p> <p>Under section 2 of chapter 74 of the Code of 1891 an insolvent debtor can not prefer his creditor or creditors by a deed of trust formally executed upon his real estate subsequent to the passage of said act, but the same shall betaken and held to be made for the benefit of all the creditors of such debtor.</p> <p>2. Construction oe Statute.</p> <p>In interpreting a statute it should be so construed, that, if it can be prevented, no clause, sentence or word shall be superfluous or insignificant; and in construing a proviso or exception contained in the statute the same rule should be applied.</p>

<p>1. Married Woman — Separate Estate.</p> <p>Where a married woman executes a joint and several note with her husband for the payment of money, her separate estate may be subjected in equity to the payment of the debt, although her husband may own a small amount of land which is sufficient to pay the debt.</p> <p>2. MARRIED WOMAN — Separate Estate.</p> <p>Although said married woman be sued jointly with her husband on such note, and a demurrer sustained as to the husdand, and the bill is dismissed as to him, the cause may proceed to final decree against the separate estate of the wife.</p>

<p>cited 30 W. Va. 305; 20 W. Va. 777 ; 35 W. Va. 280, p’t 5, Syll. ; 3 Irctl. 177 ; 91 IT. S. 225 ; 114 Pa. St. 554; 1G W. Va. 555; 12 W. Va. 505; Code, c. 125, s. 25; 3 Chitt. PI. 1144*; 33 W. Va. 319; Steph. PI. 57, 287; 3 PI Comm. 307; Whar. Cr. L. § 530 ; Town. Lib. § 337 ; 13 W. Va. 71; 16 Wend. 10 ; 2 Saund. PI. and Ev. 799 ; 3 Johns. 220* ; 2 Den. 297; 16 Wend. 16-19.</p> <p>cited 2 Va. 527; 13 W. Va. 852; 23 W. Va. 773; 20 W. Va. 770; 16 W. Va. 555; 12 W. Va. 505 ; Code, c. 125, s. 25.</p> <p>cited 2 Arch. Cr. Pr. 317 ; 1 Bish: Cr. Pr. 615 ; 3 Gr. Ev. § 176 ; Id. 177 ; 13 W. Va. 96, 82, 205, 209 ; 18 Gratt. 80; 5 Tenn. 211; 23 Am. Rep. 798; Const. Art. IV., s. 8; 4 Rob. Pr. 733 ; 17 Gratt. 255 ; 2 Sand. P. & E. 900, 902; 10 Leigh, 261; 2 Bish. Cr. L. § 930 ; 2 Whar. Pr. Ind. 939 ; 3 Gr. Ev. § 174,175 ; Id. 166 ; 2 Bish. Cr. Proc. 783, 785, 791, 793, 794.</p>

<p>1. Deed — MORTGAGE.</p> <p>A deed absolute on its face held to be an equitable mortgage.</p> <p>2. Deed — Delivery.</p> <p>The date of a deed is prima facie the date of delivery, but only prima facie.</p> <p>3.Deed — Delivery.</p> <p>Delivery of a deed depends on intent of parties, and, though not in formal words, may be shown by circumstances.</p> <p>4. Deed — Delivery.</p> <p>Acknowledgment of a deed is not conclusive evidence of its delivery, but a circumstance tending to show delivery.</p> <p>5. Deed — Delivery.</p> <p>Where it is clear a deed has been delivered, it is still a deed, though afterwards found in the possession of the grantor.</p> <p>6. Deed — Delivery.</p> <p>Where a deed has been once completed by delivery, so as to pass title to land, its subsequent oral cancellation or destruction, though by consent of both parties, does not divest the grantor of title, but it still remains in him.</p>

<p>1. CONTRACT — M ARKI AG B — CONSIDER ATION.</p> <p>Marriage in an antenuptial contract is a valuable consideration ; and such contract can not be impeached by existing creditors as fraudulent, unless it be shown that both parties thereto participated therein or had notice of fraudulent intent.</p> <p>2. LIMITATIONS OF ACTIONS.</p> <p>The statute of limitations, as provided in section 14, c. 104, Code, has no application to contracts founded on a valuable consideration but is limited by the wording of the statute to contracts on consideration not deemed .valuable in law.</p> <p>3. Husband and Wife — Separate Estate — Debtor and Creditor.</p> <p>A husband may engage in business with his wife’s capital in her name and on her credit for her benefit; but if owing to his skill and labor large profits accrue therefrom over and above the necessary expenses and indebtedness of the business including the support of himself, wife and family, a court of equity will justly apportion such profits between his wife and his existing creditors.</p>

<p>Syllabus the same as in Boggess v. Richards’s Adm’r, supra, p. 567.</p>

<p>i. Sale.</p> <p>The general rule is, that the power to sell is an inseparable incident of the ownership of property, which .makes it liable to the owner’s debts.</p> <p>2.Sale.</p> <p>Such power can not be fettered or restrained except in certain cases.</p> <p>3. Sale.</p> <p>Where such restraint is in the exercise of power, which is a part of the dominion of the grantor not parted with but retained and exercised for some purpose beneficial to the security of his own right, such as to keep the property bound by a charge created and imposed upon it and to hold the grantee to the personal performance of the duties given him in charge, the general rule does not apply.</p> <p>4. Deed — CONSIDERATION.</p> <p>Where in a deed of settlement from father to son a tract of land is conveyed on the consideration, that the son will support for life his father and his wife, the grantors, and the deed taken as a whole shows the intention to he to charge the real estate conveyed as security for the performance of such duty, it is not necessary that a lien on the land for such support be expressly reserved on the face of the conveyance.</p> <p>5. A case in which these principles are applied.</p>

cited Code, c. 29, s. 35 ; Acts 1881 c. 161; Acts 1882 c. 161; Code, c. 29, s. 8, 84; Code, c. 28, s. 13 ; Acts 1882, c. 32, s. 4, 8; Code, c. 30, s. 18; Code, c. 31, s. 25. I. — Title obtained under tax-deed. — Code, c. 31, s. 25. II.— That there, toas personalty on land sold for taxes will not defeat tax-title, if no levy was made. — 26 ~W. Ya. 709.

<p>1. Equity — Pleadings.</p> <p>A party entitled to plead in an action at law the defences specified in section 5, c. 126, Code, 1891, need not plead them in the action, but may avail himself of them in equity without any excuse for not using them atiaw.</p> <p>2. Sales — Warranty.</p> <p>In sales of personal property by one in possession, there is an implied warranty of good title.</p> <p>3. Sales — Fraud.</p> <p>One selling personal property, knowing he has no title, and concealing that fact from the purchaser, is liable for fraud.</p> <p>4 Injunction.</p> <p>Though generally injunction does not lie against a judgment to let in setoffs, yet it will lie whore the judgment-creditor is insolvent. ^</p>

<p>Sciee Facias — Paeties.</p> <p>An assignee of a judgment can not, in Ms own name, maintain a writ of scire facias to revive it.</p>

<p>cited 33 W. Va. 155; 21 W. Va. 125 ; 28 IV. Va. 514; Saud’s Suit in Equity 191, 392, 502, 503; Code,c. 132, s. 7; 26 W. Va. 1; 34 W. Va. 290.</p>

<p>10 CO CO cé I> £ o CO ,113 t> !>’ ^ CO to <1 p C7I iO t>CO —H co 9? ex, , co • CO o Oi &1 ^ c<50 -h CT1 d 5 ¡> 02 • t-H £ ^ co -cH CO 03</p> <p>cited 11 W. V a. 549 ; 58 N. Y. 437; 37 Hun 537; 1 Black 204; 4 Wall. 502.</p>

I. — Depositions must be held open until the expiration of the hours named in the notice, unless the opposite party sooner appear to cross examine the ic-itnesses. — 4 Muuf. 80. II. — Badges of fraud; — Burden of proof; — Embarrassment of grantor; — Pendency of, or expectation of suit; — Concealment of deed; — Misrecital in deed §c. — 36 W. Ya. 649 ; 34 W. Ya. 696; 35 W. Ya. 547; 35 \V. Ya. 719; 35 W. Ya. 754; 37 W. Ya. 3; Id. 572; Id. 675; Id. 687; Bump. Fraud.

<p>cited Code, c. 39, s. 6, 15 ; Const. Art. VI, s. 39 ; 75 Mo.. 340 ; 21 Ohio St, 11; 7 Laws Id. and Rem. § 3758, 3760 ; Am. Dig. 803, 806; 50 N. W. Rep. 720; 29 Kan. 565 ; 3 W. Va. 588 ; 6 W. Va. 74, 612, 640, 720 ; 25 W. Va. 324 ; 27 Stim. 604 ; Stim. Am. Stat. L. § 301; 25 Neb. 674; 20 Tex. 782; 73 Am. Dec. 213 ; 66 Mo. 442 ; 29 W. Va. 03; 11 Cal. 49 ; 27 W. Va. 244 ; 18' S. E. Rep. 8; Code, c. 3, s. 67; Cool. Const. Dim. 603.</p> <p>I. — Sufficiency of petition — Date.—Code (1891) c, 39, s. 15 ; ' 28 W. Va. 181, 182.</p> <p>II. — Number of petitioners — Court will take judicial notice of number required. — 29 W. Va. 63 ; 45 N. W. 854 ; 54 la. 340.</p> <p>III. — Irregularities will not defeat the popular will. — 6 W. Va. 613 ; 23 Tex. App. 77 ; 85 Ky. 597.</p> <p>IV. — Separate certificate of return. — Code (1891) c. 39, s. 15.</p> <p>V. — Special laxo, statutes, titles, etc. — 1 Tuck. Comm. (Ed. 1846) 11; 22 Am. & Eng. Ency. Law 904, note 2; 29 W. Va. 87; 18 S. E. Hep. 470; Const. Art. VI., sec. 30 ; 37 W. Va. 811; 7 L. A. R.; 107 TI. S. 147.</p> <p>VI. — Failure of officers to be sworn, etc. — 6 W. Va. 613 ; 29 W. Va. 89; 12 Cal. 352; 29 Ill. 54; 10 la..(With) 212.</p> <p>VII. — Regularity of election is presumed. — 6 W. Va 613; 29 W. Va. 63 ; 6 Am. & Eng. Ency. Law 326; 19 S. E. Rep. 557.</p> <p>VIII. — Sufficiency of notice of special session — Code (1891) c. 13, s. 13; 21 W. Va. 777.</p> <p>IX.— Court house not a vested right. — 29 W. Va. 63; 4 Greene (Iowa) 60.</p>

<p>cited 28 Atl. Rep. 81; Code, c. 65, s. 3; 4 Kent. Comm. 39; 4 Leigh 30; 12 Leigh 264; 2 Rob. 384; 29 Gratt. 99; 31 Gratt. 791; 79 Ya. 504; 78 Ya. 88; 87 Ya. 444; 55 la. 244; 20 Ill. 53 ; 14 Mass. 351; 85 H. C. 456; 9 Ohio St. 331; 13 Ohio 148; 38 Md. 270.</p> <p>cited 11 Gratt. 441; 19 W. Ya. 179; Rob. El. Law § 92.</p>

<p>1. SATIE — FRAUD—DEBTOR AND CREDITOR.</p> <p>S. purchases a sawmill and fixtures in October, 1889, from H. and pays him three hundred dollars cash and executes two notes for two hundred and ninety dollars each payable in nine and eighteen months with interest for the residue and agrees to give a deed of trust on said property to secure said deferred payments. He does not execute the trust at the time for tho pretended reason, that he is in a hurry to remove the property to another county, where ho resides, but promises H. that, if he will prepare and send the trust-deed to him, ho will execute it and have it placed on record. In the month of February, following said deed of trust was prepared and presented to said S. on two occasions, when he declined to execute it. In the month of April following he sold said property to the widow of his deceased brother, who through her husband and agent had notice of the debt duo Ii. tho agreement to execute said trust and the refusal on tho part of S. to comply therewith. At the time of the sale a written conveyance of this personal property was executed acknowledged and recorded, and more than twenty days thereafter four hundred and eighty dollars of the purchase-money was counted out by defendant N., the second husband, as tho agent of his wife to S. in the presence of a witness who was called in. About tho time of the purchase of said mill aud fixtures by S. he sold his lands for two thousand and one hundred dollars. Shortly after tho sale of the mill-property he sold his horse to said husband, which was all the property owned by him in this state ; and said S. then left the state without securing tho notes of H. and has remained away ever since. Held, that these circumstances show, that the sale of said mill-property w'as made with intent to hinder, delay and .defraud H., and that JST. the wife of said agent, had notice of tho fraudulent intent, and that said sale was void as to H.</p> <p>2. Sale — Fraud—Debtor and Creditor.</p> <p>A creditor can not purchase the goods of his debtor at a price in excess of his debt, when he knows that tho excess so paid such debtor is by the latter to be placed beyond tho reach of his other ■ creditors. Such purchaser is a participant in the fraud of his debtor, whether his purpose be to aid him or not.</p> <p>3. Sale — Fraud—Debtor and Creditor.</p> <p>Wherever there appears to be connected with the transaction eircnmstances indicating excessive effort to give it the appearance of fairness or regularity, which are not usual attendants of anch business, the courts will regard such circumstances as badges of fraud.</p>

<p>1. Logs — Evidence—Mbasubement.</p> <p>A written contract shows, that logs are purchased at a given price per cubic foot, no mode of measurement being specified by it. Evidence is admissible to prove a contemporaneous oral agreement, that a certain mode of measurement shall be applied.</p> <p>2. Logs — Measurement.</p> <p>Where such contract does not provide a mode of measurement, and there is no such special agreement to apply a particular mode of measurement, and such logs are purchased with the knowledge on the part of the seller, that they are to he manufactured into sawed lumber, in ascertaining the cubical contents of the logs Scribner’s rule, designated “cubic measurement,” reducing the logs to square measure is the rule applicable.</p> <p>8. Contract — Custom—Usage.</p> <p>Where a contract does not provide in a given particular, particular local custom may be proven for its interpretation, so it be brought home to the knowledge of the person to be affected by it, and so it do not violate fixed statute or common law.</p> <p>4. Logs — Measurement—Custom—Usage.</p> <p>In measurement of logs, lumber, and timber, where there is no contract provision as to mode of measurement, Scribner’s rule applies under section 17a, c. 59, Code 1891, and custom and usage have no application.</p> <p>5. New Trial — EvideNce.</p> <p>Under section 9, c. 131 (Ed. 1891) of the Code when exception is taken to the action or opinion of the court upon a question involving evidence upon a motion for a new trial or otherwise, all the evidence, whether conflicting or not, must be certified, and this Court must consider all such evidence on both sides, though conflicting, not rejecting any. If upon such evidence the finding of the jury plainly appears to be contrary to the evidence or without sufficient evidence or plainly against the decided and clear preponderance of evidence, it ought to be set aside, even though the evidence be conflicting.</p> <p>6. New Trial — Evidence.</p> <p>While a verdict may under the circumstances just stated be set aside, though the evidence conflict, yet the power to do so should be cautiously exercised.</p> <p>7. Evidence — Discretion—Reversal.</p> <p>Whether a party shall introduce further evidence, after that of the adverse party has been heard-, is a matter within the discretion of the court, and its exercise will rarely, if ever, be the cause of reversal in an appellate court. Clearly he is entitled to introduce evidence to rebut that of the other party.</p>

<p>cited 31 W. Va. 851; Code, c. 125, s. 11; 21 W. Va. 577 ; 25 W. Va. 667 ; 3 W. Va. 540; Code, e. 125, s. 66; 5 Am. & Eng. Ency. L. 562; 1 Rob. (old) Prac. 638; 151 IT. S. 462, 463, 468; 6 T. R. 710; 1 Ben. E. Ins. Cas. 53;. 10 Allen 213; 8 Exch. 819; 28 Law J. Q. B. 260 ; 41 Pa. St. 164 ; 57 N. Y. 500; 35 W. Va. 666 ; 10 W. Va. 507; 8 W. Va. 474; 90 Mich. 302 ; 133 N. Y. 356; 32 Neb. 750; 48 Kan. 239; 51 Minn. 239; 43 N. II. 621; 18 Wis. 387; 2 Gray 480; 12 Gray 535; 36 Minn. 433; 64 N. Y. 162; 52 N. Y. 502; 2 Ins. L. Jour. 769 ; 57 N. Y. 500 ; 3 Ins. L. Jour. 771; 109 Pa. St. 535 ; 141 Pa. St. 10; 1 Ben. E. Ins. Cas. 53; Id. 264; 2 Pet. 25; 1 J. S. Green 110; 1 Ben. E. Ins. Cas. 389 ; 112 Mass. 41; 87 Pa. St. 399; 63 Pa. St. 9; 2 May § 471, 508 ; 11 Am. St. 67 ; 10 W. Va. 553 ; 50 Minn. 231; 60 la. 704 ; 128 Pa. St. 392; May Ins. § 462; 8 Gray 33; 21 W. Va. 368; 11 S. E. Rep. ,50; 35 W. Va. 666; 57 Vt. 520; 6 Bis. 91; 33 V. Va. 526; 21 W. Va. 368; 25 Wend. 382; 3 Gill. 176; 2 Ben. E. Ins. 405; 10 W. Va. 541; 98 Mass. 420.</p> <p>I. — Failure to f urnish proof of loss within thirty days does not bar recovery. — 93 Mich. 81; 102 Pa. St. 284; Wood F. Ins. § 416 ; 80 Ill. 394; 134 Pa. St. 588 ; 51 N. II. 55 ; 33 W. Va. 676; 2 Wood E. Ins. § 443 ; 39 N. J. L. 482.</p> <p>II. — Proof of loss furnished with reasonable diligence — 90 K’y 241; 87 Ill. 70; 14 Mo. 220 ; 3 Neb. 391; 76 N. Y. 459; 80 N. Y. 108.</p> <p>III.— Waiver of p>roofs of loss. — 21 W. Va. 383; 37 W. Va. 786; 10 W. Va.'560 ; 11 R. I. 139; Id. 583; 57 Mich. 21; 8 Exch.' 819; 8 Johns. 317; 11 Johns. 259 ; 23 Wend. 526; Elound. E. Ins. 529; 86 Ala. 424; 102 Pa. St. 94; 1 May Ins. (3d Ed.) §§ 174, 175; 2 Wood E. • Ins. § 482 ; 37 W. Va. 795 ; 10 W. Va. 567.</p> <p>IY. — Proofs of loss in this case an idle ceremony. •</p> <p>Y. — Plaintiff justified in waiting to make proofs of loss. — 35 W. Ya. 673 ; 41 Md. 60; 2 Wood F. Ins. § 443; 11 R. I. 139.</p> <p>VI. — Meaning of the word adjustment. — 116 FT. Y..54; 12 W. Ya. 116; 37 W. Ya. 794;-35 W. Ya. 673; 154 Pa. St. 384 ; 26 Atl. 14; 80 FT. Y. 109 ; 115 Pa. 407 ; 64 Mich. 372; 61 Mich. 635; 112 Ill. 69; 81 FT. Y. 419; 43 Wis. 109; 7 Lawy. Ann. 82.</p> <p>VIL- — Court could set aside'at a subsequent term its order sustaining demurrer. — 2 .Black Judgmts. § 509 ; 82 FT. Y. 555; 1 Whar. Ev. 781; 36 la. 526 ; 1 Bl. Jdgmts. § 29 ; 76 ÍT. Y. 514; 16 Am. & Eng. Ency. L. 511; 38 Kan. 224. ' • ’ .</p> <p>VIII. — Declaration or plea with statements 1 filed in aid of” them are pleadings. — 21 W. Ya. 576 ; 31 W- Ya. 853 ; .33 W. Ya. 526.</p> <p>IX. — Evidence that other companies had paid their share of loss admissible. — 31 W. Ya. 430.</p> <p>X.— What defendant’s bill of exceptions should have contained.— 31 W. Ya. 430 ; Code, c. 131, s. 9.</p> <p>XI. — Costs of former trial should abide event of new trial.— 'Code, c. 138, s. 5.</p> <p>XII. — Order in this case granting plaintiff new trial should not be reversed. — 10 W. Ya. 115; 31 W. Ya. 428; 12 W. Ya. 116 ; 37 W. Ya. 796.</p>

I.— The court having overruled the motion in arrest of judgment could not go hack for the motion for a new trial, hut should have ■ proceeded to judgment on the verdict. — 1 Barr. 333 ; 2 Salk. 647 ; 1 Barn. & Ores. 160 ; 2 Tuck. Comm. 309 ; 16 Am. & Eng. Ency. L. 635; 41 Mo. 264. II. — Court erred in construing policy forfeited by recovery of judgments. — 12 W. Va. 130; May Ins. J.66, 174, 175, 181; 18 Am. Bep. 385 ; 80 1ST. Y. 21 ; 82 H. Y. 519.

<p>Contempt — Supersedeas.</p> <p>The disregard of a supersedeas hnprovidently issued and annulled and vacated for want of jurisdiction will not be punished as a contempt of the lawful process of this Court.</p>

<p>l. Specific Performance.</p> <p>Where a vendor sells a tract of land to his vendee and executes to such vendee a deed, in Which his wife joins, but the certificate of acknowledgment is so defective in form as not to release the contingent dower of the wife, part of the purchase-money having-been paid in cash, and time having- been given for the residue, specific performance of the contract will not be enforced by compelling- the payment of the residue of the purchase-money, unless such defendant is allowed to retain a sufficient amount of such purchase-money to adequately indemnify him against such contingent right of dower.</p> <p>2. Separate Estate.</p> <p>Where a judgment in an action of ejectment is obtained against a married woman and her husband for costs, such judgment can not be enforced by suit in equity against the separate estate of the wife. Brannon, P., dissenting.</p>

<p>1. Construction of Statute.</p> <p>The phrase in rem” in the sixteenth section of chapter 66 of the Code of 1891 means “quasi in rem," and the suit is inter partes.</p> <p>2. Attachment — Affidavit.</p> <p>An affidavit for an attachment under section 1 of chapter 106 of the Code, which omits the phrase “at the least,” is not in substantial compliance with the terms of the statute, the phrase being neither superfluous nor insignificant. See Altmeyer v. Caul-field, 37 W. Va. 487 (17 S. E. Bep. 409).</p> <p>3. Attachme st — Affidavit— Waiver.</p> <p>The right to move to quash an attachment on the ground of an insufficient affidavit is not under section 19 of chapter 106 waived by appearance and filing an answer.</p> <p>4. Attachment — Separate Estate — Married. Woman.</p> <p>The separate personal estate of a non-resident married woman may be proceeded against by suit in equity with order of attachment in the Circuit Court of the county, in which her separate personal estate is found.</p> <p>5. Lex Loci Domicilii.</p> <p>The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree and the modes of carrying them into execution.</p> <p>6. Lex Loci Contractus — Separate Estate — Married Woman.</p> <p>The extent, to which a married woman may bind herself or her separate personal estate, is prima facie determined by the law of the state, in which the contract is made, it being also the place of her domicile.</p>

I. — Cattle guards not required at farm crossings. — 45 Am. & Eng. R. Cases 122; Thorn. Railroad Fences, etc., 449, § 289 ; 80 Ill. 72 ; 20 Am. & Eng. R. Cases 458 ; 79 Mo. 504; 83 Mo. 496; 80 Ill. 72 ; 36 Wis. 45; 13 Barb. (N. Y.) 594. II. — Our statute vests fee simple in company upon condemnation. — Code, c. 42, s. 18. III. — Amendments must not introduce new matter. — 21 W. Va. 412.

Appeal of HyR®. I. — Recording of deed of trust in county to which chattels are removed must be made within three months. — Code, c. 74, s. 7. II. — -The question here presented has been under redew, in cliffer- ' ent aspects, under Virginia statutes. — 1 Leigh, 443; 5 Leigh, 520; 10 Leigh, 497; 2 Gratt. 415. But does not seem to have been before this court.