Volume 4 — West Virginia Reports

This case came from Jackson count}7. It was pending in the court of appeals of Virginia at the formation of this State, and was transferred to this court by operation of law. The points determined are stated in the opinion of Judge Berkshire. Hon. Geo. W. Summers presided at the trial of the cause in the circuit court.

Kboderiek Price, of New York, filed a bill in the circuit court of Wood county, at September rules, 1860, alleging that he was the owner of a valuable tract of land lying in the counties of Wood and Ritchie, contiguous to the Northwestern Virginia railroad, and that oh the 17th day of February, 1859, he entered into - an, agreement with one Seth H. Klinck, also a citizen of New York, who was by the terms thereof, to go to Virginia as the agent of Price, and endeavor to make…

This cause arose in Cabell county. The original bill was filed and injunction obtained in September, 1868; the amended bill was filed in May, 1869. The appellant, Lusher, sought to restrain the collection of taxes assessed against him by the officers of the county of Lincoln. The appellees were tax collectors. The opinion of the President contains a substantial statement of the points at issue.

This was originally and action of debt on an injunction bond. The case was brought to November rules, 1866, in the circuit court of Preston county.

This action arose in Greenbrier county, in February, 1867. Kearnes was the plaintiff below, and brought the case here on a writ of supersedeas. All the facts certified in the bill of exceptions, are given in the opinion of Judge Maxwell. Hon. ,N- Harrison, judge of the circuit court of Green-brier, presided on the trial of the case.

On the 8tb day of July, 1864, William F. Peterson and William S. Gill presented tbe bill filed in this cause, to the' judge of the circuit court for Marshall county, and obtained an injunction thereon against the defendants, staying waste of lands, &c. .At the September term, 1866, the death of said William P. Peterson having intervened, the cause was revived in the name of Sarah G. Peterson.

The summons in this case was returnable to March rules, 1867, in the clerk’s office of the circuit court of Greenbrier county. The action was debt, and claimed 1,568 dollars. The defendants William R. Stuart and John Stuart who were sureties for the principal debtor in the bond, Charles A. Stuart, pleaded, in addition to payment and usury, non est factum,. The cause was tried in January, 1869, when there was a verdict and judgment for the plaintiff, Jesse Livesay.

. The declaration in this ease was filed at the March rules, 1867, in the clerk’s office of the circuit court of Greenbrier county. Handley & Carey were the plaintiffs, and Samuel C. Ludington and H. D. McClintic defendants. The action was debt on a protested negotiable note. At the January Term, 1869, the defendants withdrew their plea of payment previously filed, and demurred generally to the declaration, which the court sustained, and rendered judgment for the defendants.

This cause arose in Randolph county. The summons was issued returnable to August rules, 1865. The complainants were Adam Crawford, Lorenzo D. White, Rebecca Ward, administratrix of Levi D. Ward, Hoy McLean, Francis M. White, and John Scott. The defendants were Adonijah B. Ward, Abraham Carper, Nester Harding, and Matthew L. Ward. The last two defendants were only assignees of judgments, or securities for A. B. Ward. .

This was a suit in equity brought in the circuit court of Monroe county, before Judge Nathaniel Harrison, and was brought on appeal to this court by Beirne, the complainant in the court below, and the case is fully stated in the opinion of Judge Berkshire.

This was an action of debt brought to February rules, 1868, in the circuit court of Jefferson county, by Richard B. Washington, executor of John A. Washington, against Ann J. Burnett. The defendant pleaded payment, and a release of the bond sued on, by amertain writing sealed with the seal of the plaintiff. At the June term, 1868, a trial was had and verdict for the defendant; verdict set aside on motion of the plaintiff and new trial granted.

Smith, Rhodes & Co., a firm composed of Thos. Smith, Edward II. Rhodes, Geo. W. Wilson and William S. Hart, as its individual members, brought suit against Nathaniel Harrison, administrator of William Erskine, deceased, in the circuit court of Kanawha county, and filed their declaration at March rules, 1867.

J. & A. Freiberg brought their action of assumpsit in the circuit court of Harrison county, to October rules, 1867, against Thomas Dolan. The account filed with the declaration was for 1,474 dollars and 48 cents, subject to credits amounting to 1,222 dollars and 48 cents; the last item among the credits was for the sum of 170 dollars and 38 cents. The balance due was alleged to be 252 dollars. Judgment was rendered for the last mentioned sum at the March term, 1868.

This was an action of trespass on the case instituted by John Grimmet against Jesse Jones and others, in the circuit court of Monroe county, on the 25th of August, 1866, for the alleged illegal arrest and imprisonment of the plaintiff, in said county, in October, 1862.

The summons in this cause was brought to January rules, 1868, in the circuit court of Wood, county. The suit was in equity, the defendant Pierce being a non-resident, and an attachment was issued. The final decree was entered at the June term, 1868, dismissing the bill. A sufficient statement of the points arising in the cause appears in the opinion of Judge Berkshire.

In November, 1864, a bill was filed in the circuit court of Putnam county, by John Seashol against William Grass and Robert P. Harvey, the object of which was to enjoin and perpetually restrain Harvey from all proceedings to collect the amount of a judgment, which he had recovered against the complainant in the circuit court of that county, at the March term, previous thereto, for the amount of certain fee bills due to Harvey from Grass, as Sheriff of that county, and for…

This case arose in Monroe county, and the summons was returnable to June rules, 1866. The plaintiff was James T. Dempsey, and the defendants William Ellis, John Ellis, William Taylor, Allen T. Caperton, Hawkins Steele, and four others. The action was trespass on the case, and the declaration alleged the spoiling of the goods of the plaintiff with force and arms, &c., and the taking and carrying away of the same, &c., by the defendants, on the 20th of August, 1862.

Motion in the circuit court of Greenbrier county by Lud-ington and others, who are stated in the record to be subsequent attaching creditors. The ground for' quashing the the attachment of the defendant in error, in the court below, was alleged insufficiency of the affidavit and attachment. The motion was overruled at the November term, 1868, and the defendants excepted and brought the case here.

In July, 1866. Elizabeth F. Crisamore brought an action of trespass on the ease in assumpsit against John A. Welch, Administrator of William II. Shanklin, in the circuit court of Greenbrier. At the September term, 1866, the defend- and pleaded the general issue, to which'plea the plaintiff replied generally. A jury was empanneled and a verdict rendered for the plaintiff at the September term, 1868.

This was an action of trespass on the case for illegal arrest- and false imprisonment, 'brought by Nicholas Martin against Allen T. Caperton, in the circuit court of Monroe county, to June rules, 1866.

This was an action of trespass on the case brought by Andrew White against William H. French, in the circuit court of Mercer county. The declaration was filed at November rules, 1866, and averred the false arrest and imprisonment of the plaintiff by the defendant, in June, 1862. The defendant entered several pleas, which were similar to those in the case of Caperton vs. Martin, infra, and were disposed of here in like manner with the pleas in that case.

This case arose in Monroe county. The declaration was filed at August rules, 1866, and alleged false arrest and imprisonment by the defendant. The case was analagous, as to the pleadings, to the case of Caperton vs. Martin. The only other question in the case is stated by Judge Berkshire in his opinion. The'trial was had in July, 1867. Hon. N. Harrison, Judge of the circuit court of Monroe, presided on the trial of the case.

This was an action for false arrest and imprisonment of the plaintiff, Philip Bowyer, by Allen T. Caperton, the defendant, the latter a provost marshal for the so-called confederate authorities during the late rebellion, in the county Of Monroe, brought in May, 1866, claiming 10,000 dollars damages, in the circuit court of Monroe county.

The summons in this case was dated July 17th, 1867, and was returnable to August rules following, when the declaration was filed. The latter claimed for professional services as an attorney and counseller at law rendered by the plaintiff to the defendant. It contained several counts in indebitatus assumpsit as per bills of particulars filed, a special count for an agreement for an annual retaining fee of 100-dollars, counts for money paid out, &c., and on an account stated.

William H. Busch, being largely indebted to Mack & Bros., on the 26th day of November, 1866, executed to one P. L. Wilson, a deed conveying a leasehold estate claimed by him in a store-room in Parkersburg, occupied by him as a clothing store, and also certain rooms occupied and used by him as working rooms for making up clothing, together with the counters, shelves, and fixtures of said store-room, the sewing machines and tailors’ implements in the room, and all cloth goods,…

The statement of the question arising in this case appears in Judge Maxwell’s opinion. The case came from Monroe county. The injunction was refused by the court below in November, 1866, and the appeal allowed by one of the judges of this court was dated in December following. Hon. N. Harrison, judge of the circuit court of Monroe county, refused the injunction below.

This was an action of trespass on the case brought in the circuit court of Berkeley county, in August, 1865, by George Sharer against John Q. A. Nadenbousch, for the unlawful arrest and imprisonment of the plaintiff, by the defendant. At the March term, 1867, the defendant obtained leave to file, and did file, three special pleas, in which pleas belligerent rights are set up as a defense to the plaintiff’s action.

This case was argued at a former term, and the decision of the court announced, but the opinion of President Brown was not filed until this term. The act having been repealed since the decision, the judgment in this case now entered did not interfere with the right of the parties to qualify. A number of gentlemen of the bar appeared for the applicants. The Attorney General for the State.

This suit was brought in Preston county, in August, 1864, by James Carskadon against Charles Williams, Joseph V. 'Williams, John T. Peerce and Charles H. Vandever. The action was trespass. An attachment was also issued in the case, under the statute providing that, if parties were in sympathy with the rebellion, and had left their usual places of abode and were out of the reach of civil process for ninety days, they were to be regarded as non-residents.

This ease came from Greenbrier county. A statement of the points made in the petition will be found in the opinion of Judge Maxwell. Hon. N. Harrison, Judge of the circuit court of Green-brier county, presided on the hearing of the cause.

This case arose in Greenbrier county in 1867. Held: long subsequent to Smithys. Segar, $c., that debt could be maintained by the payee against the acceptor of an order. Iiow can that ease be distinguished, in principle from the one at bar?

This was an appeal from a decree of the circuit court of Kanawha, county, rendered on the 22d day of June, 1867. The bill was filed at the October rules, 1865. A statement of the material points in the cause will be found in the opinion of Judge Maxwell.

James Jarrett, Jnn.,brought an action of debt in the circuit court of Monroe county, to July rules, 1867, against James M. Nickell. The declaration described two bonds, in two counts. The first count described a bond for 642 dollars, dated May 23d, 1866. It is unnecessary to mention the other one, as judgment was had on it by consent.

The points arising in this case appear in Judge Maxwell’s opinion. Hon. N. Harrison, Judge of the circuit court of Geenbrier county, presided on the hearing of the cause.

This was an appeal from a judgment of the circuit court of Mason county, rendered on the 6th day of September, 1867, upon a rule issued by said court against the Board of Supervisors of that county and Frederick Ford, upon the petition of William T. Minturn, praying a writ of mandamus against the Board of Supervisors to compel them to permit the petitioner, Minturn, to qualify and give bond as treasurer of Mason county.

This case arose in Berkeley county, and the summons was returnable to April rules, 1866. The action was as-sumpsit.

Grandison 0. Landcraft, on the 13th of October, 1869, filed a bill in the clerk’s office of the circuit court of Monroe county, averring that he had executed a deed of trust in 1858, on certain real estate, to secure the payment of 1400 dollars, due to one J. H. Alexander; that one George W. Hutchinson was the trustee in the deed; that he had made sundry payments on the debt; that Alexander had departed this life and Allen T. Caperton was appointed his administrator; that…

This was a suit brought by bill in chancery, in the circuit court of Monroe, filed at November rules, 1859. The bill alleged that James Graham made his will in 1812-, and having died shortly thereafter, it was duly admitted to probate in Monroe county. That among other devises and bequests was the following: “I give unto my daughter Mebeekah “ Graham and her children that plantation where she now “lives, known by the name of Stephenson’s cabin.

Oscar Callison filed a bill of injunction in tbe clerk’s office of tbe circuit court of Monroe county, at tbe August rules., 1869.

This was an action of trespass, for false imprisonment, brought by Lorenzo Cole, against John Eadcliff, Milton Eadcliff, and others, in the circuit court of Taylor county, to October rules, 1865. The plea on which the case was tried, was not guilty. The jury found a verdict of 300 dollars damages, subject to the opinion of the court. On a demurrer to evidence by the defendants Eadcliff, judgment was rendered thereon for them.

This case came from Berkeley county. The judgment complained of was rendered in March, 1869. The opinion •of Judge Maxwell contains a statement -of the case. Hon. Joseph A. Chapline, judge of the circuit court of Berkeley county, presided on the trial of the case.

The Mutual Assurance Society against Fire on Buildings, of the State of V irginia, filed a bill in the clerk’s office of the circuit court of Berkeley county, in April, 1867, against the Board of Supervisors of that county, alleging that in 1856, the county court of Berkeley insured the court-house and public offices with the above mentioned society, according to a policy of insurance filed with the bill; that the assessment of quotas due on the propertyinsured for the years…

This was an action of assumpsit brought by Fayette A. Lovell, against George W. Morrison and. James W. Oakes, in the circuit court of Kanawha county, in October, 1864, to recover from them 7,750 dollars, with interest thereon from the 13th of January, 1863, till payment, the amount of a certificate of deposit in the Bank of Tennessee at Chat-anooga, bearing date April 7th, 1862, and assigned by the said Morrison and Oakes to said Lovell, on the 13th of January, 1863.

This cause arose in Kanawha county. The bill was filed in April, 1868. William H. Edwards and F. A. Lovell and others, purchased of William E. Chilton a tract of land, situate in Wirt county, in 1865, for a large sum of money, and made several large payments thereon.

John E. Carskadon brought an action of trespass and assault and battery, against George If. Johnson, John T. Peerce, and Joseph L. Yandiver, in the circuit court of Preston county, to January rules, 1865. The defendants pleaded the general issue, and also a special plea usually known as belligerent rights; issue was-taken on both pleas.

This cause arose in Wood county. The bill was filed at May rules, 1864, and the decree complained of was rendered by the circuit court of that county in June, 1868.

This case arose in Greenbrier county. The judgment of the court below was entered in June, 1869. The opinion of Judge Maxwell contains a statement of the ease. Hon. N. Harrison, judge of the circuit court of Green-brier county, presided on the trial of the case.

Richard Burke and others, whp claimed to be elected township officers for Union township, Monroe county, filed their petition in the circuit court of Monroe county, on the 3rd day of December, 1868, alleging that they were duly elected to the offices of township clerk, &c., at an election held on the 22d day of October, 1868; that the board of supervisors had failed and refused to declare them so elected, but had on the contrary declared the election null and void, set it…

This was an action of debt brought in the circuit court of Kanawha county, to March rules, 1867, in the name of “William Leach, who sues for the use and benefit of William Dickinson, executor of William Dickinson, deceased,” against Nathaniel Harrison, administrator with the will annexed of William Erskine.

William Karnes filed bis bill in the circuit court of Green-brier county, at August rules, 1866, against Elijah M. Lee, alleging that on the 8d of December, 1862, he had sold to the defendant a house and lot in Lewisburg, for 900 dollars; that he executed a title bond for the same, whereby he bound himself to make a deed for the premises whenever the whole purchase money should be paid off; that 400 dollars had been paid, and the residue was unpaid; 250 dollars being due…

This was an action of assnmpsit brought in the circuit court of Greenbrier county, by Matthew Harrison, executor of Burr W. Harrison, deceased, against the Farmers’ Bank of Virginia. The following bill of particulars was filed with the declaration: “Oct. 7, 1862. To draft on- auditor for interest • collected by you,.$960 00 “Jan. 21, 1863. To draft on auditor for interest • collected by you,. 960 00 “July 27, 1863.

This was a suit in chancery brought by William Dils against Samuel Logan, in the circuit court of Wood county. The bill was filed at February rules, 1865.

In December, 1865, Milton Parker filed Ms bill in the circuit court of Kanawha county, against John N. Clarkson and others, to enforce the lien of sundry judgments obtained by him against said Clarkson before that time in the county and circuit courts of Kanawha county, against two tracts of land in the county aforesaid, conveyed to him on the 10th of April, 1855, of 295 and- 28 acres, respectively, by Samuel H. Early and wife, and Jubal A. Early, as trustee for Henri Ann…

This was an action of trespass on the case for illegal seizure and sale of the property of the plaintiff’s intestate, William Ballard, deceased, by the defendant, Allen T. Ca-perton, brought in Monroe county. The summons was returnable to June rules, 1866.

Bill filed in the circuit court of Jefferson county, at August rules, 1867, by Miss Hartley Graham against Catharine B. Wright, N. S. Wright, and William F. Turner.

This cause came from Ohio county. The bill was filed at February rules, 1868, by Pratt & Fox. It alleged that the plaintiffs had obtained a judgment against Sherrard Clemens for 2,360 dollars and 75 cents, in the circuit court of Ohio county, on the 29th day of May, 1867, and that a writ of fieri fiadas, issued thereon, had been returned “no property.” That the judgment had been placed on the judgment lien docket on the 14th. day of November, 1867.

A sufficient statement of this case appears in the opinion of Berkshire, president. ’ The case came from the circuit court of Kanawha county.

The bill in this cause was filed at November rules, 1866, in the circuit court of Monroe county. The plaintiff, John Kelley, alleged that in March, 1861, he had loaned, on the application of Letitia P. Lewis, wifeof W. L. Lewis, to Mrs. Lewis, the sum of 5,000 dollars, and that she and her husband had executed their obligation therefor, and also had executed a mortgage for the purpose of securing the same, on certain real estate belonging to Mrs. Lewis.

This case came from Harrison county. A sufficient statement of the points at issue appears in the opinion of Berkshire, President. Held: that at the common law, seisin in deed by the husband and wife during the coverture, was necessary in order to his tenancy after her death, and that in Yirginia, it was still necessary. Mercer’s lessee v. Selden, 1 IIow., 37. In the case decided, there was actual possession in a stranger, adverse to that of the husband and wife.

This cause came from the circuit court of Taylor county. The bill was filed at July rules, 1864. The complainant sought to sell the real estate of the defendant, Thomas A. Hoffman, on account of having paid to John A. Rightmire and Isaac Carder, the amount of a judgment obtained by them on an injunction bond of the defendant Hoffman, in which the complainant was his surety. Rightmire and Carder were not made parties to the bill.

A motion to quash a notice because the return of the sheriff was not sufficient; from Mineral county. Judgment was rendered on the notice on the 22d day of October, 1869. The opinion of Judge Moore sufficiently states the ground of the motion.

A sufficient statement of this case appears in the opinion of Judge Maxwell. The suit was brought to February rules, 1867. Hon. N. Harrison, judge of the circuit court of Monroe county, presided on the hearing of the case. •

This was an application to the circuit court of Brooke ■county, for an order of injunction to restrain the board of education of Wellsburg school district, in said county, from collecting from the plaintiff any moneys assessed and. levied by said board on the property of the plaintiff, for the fund and for the support of schools within that The plaintiff, in his bill of injunction alleged that, he was a resident of Buffalo township, in that county, and the owner of real and…

Bill filed in the circuit court of Marion county, at May rules, 1868, by Jeremiah Beatty against 'William Fluharty and wife.

This was a suit iu equity brought by the heirs-af-law of James D. Hall, the complainants below, against defendant Callihan, in the circuit court of Barbour county, to October rules, 1865. In March, 1867, that court rendered the decree complained of. The cause was determined here on a demurrer to the bill, and a statement thereof appears in Judge Maxwell’s opinion. The defendant appealed to this court.

<p>A return stating that service was made by “posting an office copy hereof on the front door of each of their dwelling houses,” is defective: First, because it does not appear that he left a copy posted at the front door, as the statute prescribes; and second, because it does not appear that it was at the “usual place of abode” of the defendants, as also prescribed by the statute.</p>

<p>This case is analagous, in the main, to the case just preceding.</p>

The complainants filed their bill in the circuit court of Tucker county, in August, 1859, to- enforce judgment liens against the defendant, William J. Harper. By consent the cause was transferred to Randolph county, and a decree was rendered in November, 1859, providing for a sale of the lands of the defendant. A portion of the lands were sold, and the defendant became the purchaser, but no part of the purchase money was ever paid.

The plaintiffs in the court below, Henry K. List, trustee, and his cestui qui trusts, Jas.

This was a suit in chancery, in the circuit court of Dod-dridge county, by Henry against Davis and others,.the object of which was to enforce against Davis specific performance of a contract for the sale of a tract of land in Doddridge county, by Henry to Davis, and to subject the same to the payment of a large balance of purchase money claimed to be due.

This was an action of debt brought in the circuit court of Nicholas county, to February rules, 1868, on a lost bond executed by the defendants to the female plaintiff, on the 29th day of September, 1862, the defendant Hawver'being principal in the bond, and the other defendants his surety. To the declaration there was a demurrer and three pleas ir¡ bar. The demurrer was overruled by the court. The first plea was payment, and to which the plaintiffs replied generally.

This cause came from Greenbrier county, and was an appeal from a decree of the circuit court of that county dissolving an injunction, rendered on the… Held: Vendee not compelled to take residue. Jackson v. Ligón, 3 Leigh, 161. See Judge Carr’s opinion, pp. 179, 180, in which he says: To hold the vendee bound, “would be truly to make contracts, and not to execute those already made.” Though defence might possibly have been made at law, yet a court of equity has jurisdiction.

Bill of injunction, brought in the circuit court of Green-brier county, on the 4th of January, 1869; dissolved January 15th, 1869. The opinion of Judge Maxwell states the cause.

Samuel J. Wyatt filed a bill in the circuit court of Green-brier county, at July rules, 1866, to enforce a judgment lien against the estate of one E. E. Cralle. The judgment had beeen obtained in 1859. The bill represented that Cralle bad obtained an injunction against tbe judgment shortly after its rendition, wbicb bad been dissolved, and tbe bill dismissed in 1861. John B. Cabell and Samuel S. Thompson were sureties in tbe injunction bond.

John M. Sydenstricker, administrator of John Surbaugh, deceased, filed a bill in the circuit court of Greenbrier county, on the 30th day of September, 1867, to enforce a judgment lien against B. F. Handly and J. Griffin Bader. The bill alleged that Handly confessed a judgment to Surbaugh for 600 dollars, in 1859, and the same was duly docketed.

Bill filed at April rules, 1866, in the clerk’s office of the circuit court of Taylor county, by Aaron T. Batson and wife, against William G. 8. Powell. It alleged that on the 6th of June, 1844, one Davidson and wife had conveyed to the complainants and defendant, a tract of land, lying in Taylor county, containing 67-n-acres, which was subject to a dower interest of the mother of the female complainant and the defendant.

Bill brought in the circuit court of Greenbrier county, in March, 1868, by S. S. Hern and wife, against defendant Hedrick, and the heirs of John Hutsonpiller. As but one of the numerous errors assigned in the decree below, was considered by this court, it is unnecessary to state any matters, except such as pertain thereto.

¡Suit brought in Greenbrier .county to February rules, 1868, by Joseph H. Correll, administrator -of William Ren-ick, against Robert W. Renick and B. F.… Held: that after a partnership contract, confessedly against public policy, has been carried out and money contributed by one of the partners has passed into other forms, a partner in whose hands the profits are, cannot refuse to account for, and divide them, on the ground of the illegal character of the original contract.

From the circuit court of Greenbrier county. Notice to April term, 1870, and judgment June term, 1870. The opinion of the President states the points on which, the case turned. Hon. J. M. McWhorter, Judge of the circuit court of Greenbrier county, presided on the trial of the case.

This suit began by a summons in trespass, for cutting and removing timber from the lands of the plaintiff, Joseph Belcher, by William Gaston and others, before a justice of Malden township, Kanawha county. The summons was dated in January, 1870. Before the case was heard, the defendant made affidavit that “ the title to real property would come in question” in the suit.

Action of trover and conversion, brought by B. F. Kelly, against John S. Arnold, in the circuit court of Mineral county. Suit began in 1866, judgment for the plaintiff for 350 dollars, in March, 1869. The only question considered by this court, was the motion made by the defendant in the court below, to set aside the verdict and grant a new trial, because the verdict was uot sustained by the evidence.

A chancery suit was pending in the circuit court of Ka-nawah county, of Parker, Beale et al. v. A. F. Formally et al., to enforce liens against the defendants, in October, 1867, when Charles Hedrick, executor of Samuel J. Cabell, deceased, filed a petition in the nature of a cross-bill, alleging that the president, directors and company, of the bank of Virginia, were parties to the suit, and were creditors of the Donnallys, secured by a deed of trust; that their claim…

This suit was entered in the circuit court of Greenbrier county, some time prior to 1859, but in consequence of the papers being lost, a new declaration was filed in January, 1869, and an amended declaration was filed in June following. The defendant’s demurred to the declaration, which was sustained at the October term, following; the court being of opinion that no action could be maintained on the instrument of writing filed with the declaration.

Action of assumpsit, brought to March rules, 1866, in the circuit court of Greenbrier county. Judgment for plaintiff in October, 1869. The opinion of Judge Maxwell states the grounds of controversy. The administrator of McSmithee brought the case here for review, he having died pending the suit. Hon. N. Harrison, Judge of the circuit court of Green-brier, presided on the trial of the case.

This case was an action of ejectment in the circuit court of Kanawha county. Judgment for the defendants in June, 1866. It is substantially stated in the opinion of the President. The deed which is held insufficient to pass land sold for non-payment of taxes under the 37th chapter of Code of Virginia, 1860, is in the following language: “This indenture, made this 29th day of April, 1865, between John Slack, Recorder of the county of Kanawha, W. Va., of the first part, and G-.

This was an action of debt in the circuit court of Green-brier county, by John A. Fleshman, for the use of John H. Smoot, against Thos. M. Conner, brought to January rules, 1867, claiming 400 dollars. A trial was had in December, 1869, and verdict for the plaintiff. This verdict was set aside on motion of the defendant, and a new trial awarded, with leave to either of the parties to amend their pleadings. The amended declaration contained a demand for 600 dollars.

This cause came from Wirt county. The bill of injunction was filed at July rules, 1868, and the decree dissolving the same was rendered in November, 1869. The point on which the cause was decided, appears in Judge Maxwell’s opinion. The plaintiff appealed to this court. Hon. G-eo. IT. Loomis, judge of the circuit court of Wirt county, presided on the hearing of the cause.

<p>An appeal is terminated by operation of law, sec. 12, chap. 135, Code of West Virginia, when the appellant fails to file the record with the clerk of this court before the commencement of the second term after the appeal is perfected.</p>

Notice to constable and sureties,filed in the circuit court of Boone county, in May, 1866, as follows: “To H. G-.

Declaration in trespass on the case filed in the circuit coui’t of Kanawha county, in February, 1869. A judgment for the defendants was rendered in April, 1870. The declaration alleged that the defendants made and dug a cellar on a certain lot, &c. The proofs showed that the defendants purchased the lot in 1866, when the cellar bad been excavated in 1835, and a building erected tbereon was burned in 1862.

This case came from Kanawha county. The ease was determined here upon a demurrer to the declaration, and the questions arising therein appear in the opinion of Judge Maxwell. There was a demurrer to the declaration and each assignment of breaches, which was overruled. The assignments of breaches are bad. 1st. They do not allege that Brown executed a bond for tbe attachment, with approved security.

Jonathan Buchanan, of Brooke county, who died in 1857, had two children, both daughters, viz: Rebecca Buchanan, who married Daniel S. Forney, the elder, in 1828, and died in 1851; and Mary Buchanan, who married the same Daniel S. Forney, the elder, in 1852, and died in 1866.

Tbe grand jury of Cabell county, on the 4th day of May, 1869, found a bill of indictment against A. G. Church for unlawful retailing. The indictment alleged that.

At a circuit court held for the county of Greenbrier, on the 12th day of January, 1870, a rule was awarded by Nathaniel Harrison, judge of said court, in open court, against Alexander Walker, an attorney at law practicing in said court, to show cause, if any he could, why the privilege heretofore granted him to practice as an attorney in said court, should not be suspended and revoked for unprofessional conduct and malpractice, in attempting to bribe Nannie Perkins to swear…

Charles Lemons was indicted in the circuit court of Green-brier county, on the 12th day of June, 1869, for stealing a horse from Daniel Rogers. The. indictment concluded •“against the peace and dignity of the State of W. Virginia.” On the 13th day of June, 1869, the prisoner was arraigned, and pleaded not guilty, and the jury found him guilty and fixed his term of imprisonment at two years in the penitentiary.

<p>1. A plea in abatement to any indictment, arising under section 5, act of November, 1863, page 109, is not to be allowed for any objection to any grand juror.</p> <p>2. The act of February 19th, 1867, cannot be construed to prescribe a qualification to grand jurors.</p> <p>3. The act of February 19th, 1867, prescribes qualifications of the same character as the act of November, 1863, and they must be construed together as one act.</p> <p>4. A demurrer to a plea in abatement, is properly sustained under the act of November, 1863.</p>