Volume 41 — West Virginia Reports

<p>cited 34 W. Va. 499; Code, c. 66, s.3; 11 N. Y. 501; 8 Wend. 339; 22 N. Y. 225; 28 N. Y. 585; 48 N. Y. 556; 17 Wend. 53; 25 Ill. 283; 21 Ind. 238.</p>

<p>cited Thorn. Gifts and Advance. 540, 541, 542, 553, 586; Code, c. 78, s. 13; 2 Min. Insts. 445, 446; 4 Kent, Comm. 418, 419 n.b.; 3 Metc. 270; 2 Grant (Pa.) 304; 40 Pa. 57; 70 Am. Dec. 94; 36 How. Pr. 301; 1 West. Rep. 382; 118 Ill. 638; 5 Pick. 527; 16 Conn. 383; Bouv. Dict. 463; Anderson’s Dict. 349.</p> <p>cited 37 W. Va. 143; 59 Ind. 39; 1 Am. & Eng. Enc. Law 219.</p>

<p>1. Fraudulent Conveyance— Bona Fide Purchaser.</p> <p>A bona fide sale, for a fair price, to an innocent purchaser, should not be set aside at the instance of the creditor of the grant- or, on the grounds of alleged fraud, for the sole reason that in the opinion of sundry witnesses the property might have brought a larger price if sold on credit.</p> <p>2. Relationship of Parties.</p> <p>While transactions between father and son are subject to critical scrutiny, yet if the circumstances show them to be fair, open, and free from fraudulent intent, the relationship of the parties will not vitiate or render them void.</p>

<p>cited Const. Arts. VI, VII, VIII; Id. Art. III, s. 10; Id. Art. V, s. 1; Id. Art. VI, s. 39; Id. Art. VIII, s. 1; Acts 1872-3, c. 77; Acts 1885, c. 45; Locke, Civ. Gov. § 142; 18 Am. Rep. 334; 23 Am. Rep 424; 8 W. Va. 720, 730-31-32-33-34; 9 W. Va. 253, 270; 17 W. Va. 216; 26 W. Va. 62; 38 W. Va. 125, 130.</p> <p>cited Acts 1872-3, c. 143, s. 3; Id. c. 77, s. 1; Id. c. 148, s. 3; Acts 1882, c. 115, s. 3; Acts 1883, c. 32; Acts 1885, c. 45, s. 1; Potter’s Dw. Stats. & Consts. 52, 53; 154-5 (notes 4, 5); Bent’s Dig. 603-4-5; Code p. 593, s. 3a; Pref. to Warth’s Code (2nd Ed); 7 W. Va. 114, 115 136, 142; 1 Black (U. S.) 470; 9 Barb. 308; 16 Pet. 342; 8 Cranch, 109; 21 Pa. 37; 6 Watts & Serg. 209; 5 Hill, 221; 2 Barb. 316; 1 Hilt. 271.</p>

<p>1. Non - Negotiable Instruments — Assignment — Implied Warranty.</p> <p>Where a party assigns a non-negotiable instrument calling for the payment of money, by writing his name across the back and delivering it, he warrants by implication, unless otherwise agreed, its validity, his right to assign, that it is a subsisting unpaid debt, and the solvency of the debtor.</p> <p>2. Non-Negotiable Instruments — Invalid Instruments—Breach of Implied Warranty-Accrual of Right of Action.</p> <p>If such instrument is illegal, and therefore invalid, there is an immediate breach of such implied warranty, and the right accrues at once to the assignee to recover back the consideration paid in an action for money had and received to his use.</p> <p>3. Non-Negotiable Instruments-Statute of Limitations.</p> <p>The statute of limitations in such case is five years, and it begins to run from the date of the breach of such implied warranty of the validity of the instrument assigned, unless something appears to avoid the commencement of the running of the statute at that date.</p> <p>4. Non-Negotiable Instruments—Action Against Assignor—Evidence.</p> <p>In an action by the assignee against an assignor of a non-negotiable instrument, the plaintiff, to maintain his action, must show that the maker was insolvent at the time the instrument was made or the contents fell due, or that he has used due diligence to recover from the. maker and failed, or that from some cause such a suit would have been of no avail.</p> <p>5. Non-Negotiable Instruments—Invalid Instruments—Notice to Assignor—Negligence.</p> <p>If the instrument assigned was illegal and invalid, and the as-signee relied upon such invalidity as excusing him from attempting by suit to collect the money, he should have given timely notice to his assignor of his reason for uot suing, and should have offered ;to return; the instrument; and if in this the assignee was guilty of negligence to the damage of the assignor, he can hot recover against him the money paid in consideration of the assignment.</p>

<p>1. Bill of Lading—Draft—Goods in Transit.</p> <p>A party discounting a draft, and receiving therewith, deliverable to his order, a bill of lading of the goods against which the draft was drawn, acquires a special property in them, and has a complete right to hold them as security for the acceptance and payment of the draft.</p> <p>2. Bill of Lading— Goods tn Transit.</p> <p>In the bands of the holder of a bill of lading it is evidence of ownership, special or general, of the property mentioned in it, and of the right to receive the property at the place of delivery.</p> <p>3. Bill ok Ladino—Property in Pledge.</p> <p>The delivery of a bill of lading for a valuable consideration, whether this arises at the time or rcs‘s upon a previously existing debt, confers the right to (he property without taking actual possession of if, or doing any further act to perfect the title.</p> <p>4. Bill of Lading—Title of Pledgee—Security for Advances.</p> <p>A bill of lading confers upon the person in whose favor it is issued or to whom it is transferred the title to the goods; and this although the transaction is not intended to give the permanent ownership, hut to furnish security for advances of money or discount of commercial paper upon the faith of it.</p> <p>5. Bill of Lading—Consignee—Attachment - Carrier.</p> <p>It is no defence to the claim of the consignee that the goods have been attached or seized by virtue of any judicial process. The contract of the carrier is that he will deliver the goods in good order and condition to the shipper or to his assigns. He thus guarantees to protect the possession of the shipper and his assigns.</p> <p>G. Attachment—Creditor—Debtor.</p> <p>An attaching creditor can acquire no greater right in attached property than the defendant had at the time of the attachment. If the property be in such a situation that the defendant has lost his power over it, or has not yet acquired such interest in or power over it as to permit him to dispose of it adversely to others, it can not be attached for his debt.</p> <p>7. Attachment—Mortgaged Chattel—Pawned Chattel.</p> <p>A chattel pawned or mortgaged is not attachable in an action against a pawner or mortgagor.</p>

I.—It was error to allow the amended bill to be filed.—24 W. Va. 72; 3 W. Va, 188; 1 Paige, Ch’y, 424; 2 Paige, 67; llVes. 565; 11 Ga. 539; Bart Ch. Prac. 324, 327; High. Inj. § 990 ; 11. W. Va. 464 ; 1 Bart. Ch. Prac. 467 ; 5 W. Va. 579; High. Inj. § 1017. II.— The court below should, not have perpetuated the injunction on the hearing of the motion to dissolve it.—74 Am. Dec. 123; 2 Dan’], Ch. Frac. 1682; 1 Bart. Ch. 468; High, luj. § 95; 4 Min.

<p>1. Tax Sales—Delinquent Real Estate—Front Door of Court-House.</p> <p>In proceedings to sell real estate as delinquent for the non-payment of taxes, the sheriff should not only advertise such sale to take place at the front door of the court-house, but the sale should lake place at such front door, to constitute a legal sale.</p> <p>2. Tax Sales— Deijnquent Lists—Front Door of CourtHouse.</p> <p>In order that lands may be legally returned delinquent, a copy of the delinquent lists must be posted at the front door of the court-house of the county at least two weeks before the session of the county court at which they are presented for examination.</p>

<p>D. B. Lucas cited 19 Gratt. 103; 27 Gratt. 110, 800; 1 II. & M. 454, 468 ; 2 Desty on Tax. 706 ; Burroughs on Tax. 253 ; Cooley on Tax. 13, n. 1; Id. 300; Const. Art. Ill, s. 13; Code, c. 35, ss. 1, 2, 3; Id. c. 29, s. 67; Id. c. 32, ss. 46, 51a, par 10, 11; Code Va. (1860) c. 42; Code (1868) p. 417, note ; Acts 1882, c. 18 ; Code, c. 85, s. 25; 29 W. Va. 673 ; 18 W. Va. 441; 19 Wall. 227, 237, 238, 239; 21 Gratt. 513; Code, c. 30, s. 26; Id. c. 35; 102 U. S. 514; 30 Gratt. 474; Code, c. 123; s. 1, par 2, 5; Acts 1837 (Va.) p. 129; Acts 1847 (Va.) p. 86; 6 W. Va. 338; 3 W. Va. 319; 3 Black. Comm. *159, *160; 3 Rob. Pr. (New ) 384; 17 S. E. Rep. 10, 11; 66 N. C. 206; Rap. & L. Law Diet. pp. 352, 396; 16 Cal. 332; 2 Anst. 558; 1 Mason, 482; 42 La. Ann. 1135; 82 Me. 152; 27 Gratt. 800; 21 Gratt. 513; 18 Gratt. 137; 11 Gratt. 103; 6 A. & E. 70; 1 Chit. Plead. 682; 4 B. & A.655.</p> <p>cited Dvvar-rison St. (2nd Ed.) 621; 71 N. Y. 487; 2 Coke, 46 a.; Brooms Legal Max. 625; 7 B. & C. 596; 28 Eng. L. & Eq. 133; 2 B. & Ad. 592; 15 Q. B. 724; 21 Wis 496; 7 Wall. 482; 2 Plowd. 459-465; 18 Wall. 301; 9 Bacon Abr. 246 (Bouvier Ed.); Endlich on Int. §§ 27, 73, 86, 122; Bacon Max. 10; 7. East, 128; 2 Leigh, 617; 20 Cal. 351; Bun-ill Law Die.; Webster’s Die.; Anderson’s Law Die. Verb “Assess.”; Code, e. 121, s'. 6; 2 Mfd. 228; 2 II. & M. 54; 1 Rob. (old) Prac. 589; 1 Call. 455; 22 W. Va. 308; 92 N C. 185; 1 Peters, C. C. 199; 36 Ohio St. 347; 29 Atlantic Rep. 327; 101 IT. S. 568; 8 How. (U. S ) 210; 15 Peters, 233; 1 Bart. Oh. Prac. 351; Code, 1868, e. 29, 30; Code, 1887, c. 29, 30; Code 1887, e. 29, s. 67, p. 188; Code, c. 30, s. 7; 2 McCord, 55; Cooley on Taxation, 438; 35 La. Ann. 301; Id. 329; 18 W. Va. 441; 13 Wall. 506; 50 Me. 376; 8 Mete 394; 3S Mo. 125; 26 N. J. L. 598; 26 Wend. 66; 26 Vt. 482; 7 Wall. 80; 56 N. II. 158; 26 La. Ann. 697; 20 Cal. 350; 6 Mass. 44; 7 Mo. App. 428; 4 Geo. 68; 35 Mo. 334; 58 N. W. Rep. 594; 56 N. W. Rep. 934; Endlich on Interp. Stat. § 465, and case3 cited in note; 1 B. & Ad. 859; Code, e. 39, s. 1; Code, c. 30, ss. 5 to 17 inclusive; 28 Pa. St. 9; 20 Wall 663; Code, c. 45, s. 1; Acts 1877, c. 31; Acts 1872-3, c. 123; Acts 1879, c. 74; Acts 1881, c. 15; Acts 1882, c. 147; Hammond’s Blackstone, 1 vol. 137; Cooley’s Const. Lim. (6th Ed.) 635.</p>

<p>cited 1 Black. Tax Tit. §§ 587, 589; 2 Id. §§ 989, 993, 1050,1057; 4 Gilmore, 221; Code c. 81, ss. 1, 4, 29; 31 Iowa, 150; 36 Id. 505; 50 Cal. 15; 22 Wis. 225; 22 Pa. St. 368; 19 S. E. Rep. 509; 11 Leigh, 339; 18 W. Va. 441; 29 W. Va. 663; 9 Ill. 221; 9 IIow. (Ú. S.) 311, 316, 317; 5 Pet. 369; 33 Minn. 49; 65 Ind. 549.</p> <p>cited 1 Black. Tax Tit. (5th Ed.) § 505; 25 Cal. 45; Black. Tax Tit. § 273; 46 Conn. 524; 57 Wis. 582; 94 U. S. 405; 38 Iowa 551; 46 Iowa 585; Minn. Stats. (1878) §87; Code, c. 31, ss. 4, 7,29, 31; 115 N. Y. 509; 134 II. S. 559; 24 W. Ya. 579; 34 W. Va. 101, 207; 36 W. Va. 213; Acts 1889-90, p. 182; 18 W. Va. 612; 15 Graft. 213-222; 99 Ill. 520; 16 Mich. 366; 20 Wis. 228; Cooley, Tax. 345.</p>

<p>cited 2 Bouvier’s Law Diet. p. 140; Barton’s Law Practice; Hilliard on Torts; Barton’s Law Practice, vol. 1. p. 185; Amer. & Eng. Ency. of Law, vol. 7, p. 66, and 664; 16 Gratt. 78; 4 Minor’s Inst. p. 392, 398; 1 Barton’s Law Prac. p. 388; 4 Minor’s Inst. p. 1443; 18 W. Va. 1 and 44; 22 W. Va. 234 and 242; 28 Gratt. 891; Hogg’s Plead. & Forms, 337-339; 1 W. Va. 53; 28 Fed. Pep. 351; 58 Iowa, 447; 64 Cal. 284; 27 Am. State Reports, 184; 1 Hilliard on Torts, p. 199; 30 Am. St. R. 45; 2 Hilliard on Torts, pp. 168, 170-1-3; 1 Kelley’s Stat. Oh. 43, p. 405 and note; 32 Eng. Com. Law Rep. 415; 24 W. Va. 416; 2 Va. Cases, 408; 21 Fed. Rep. 771; Code, c. 130, s. 25; Id. c. 50. s. 3; 1 Rob. (Old) Prac. p. 253-4; 16 Am. Rep. 528, 3d Syl; 19 Fed. Rep. 812; 24 Fed. Rep. 726; 2 Beach Mod. Fq. Prac. § 892; 113 Mass. 411; 4 Paige, 360; 24 W. Va. 279; 16 W. Va. 864; 13 Gratt. 57; 25 W. Va. 139.</p> <p>cited 89 Eng. Com. Law Rep, 467; 4 Rob. Prac. 680, 681; 1 Hill. Torts, 443; 1 Chit. Plead. 388; 2 Wilson, 302; 7 Am. Dec. 603; 8 Id. 674; 30 Id. 611: 1 Hil. Torts, 443; 3 Law. R. & Kern. § 1081; 8 Ohio St. 548; Cooley, Torts, 187, 188; 8 Gill. & John. 878; 4 Bingh. (N. C.) 212; 38 Me. 527; 4 Camp. 213-14, 526; 1 Jones (Pa.) 82; 18 W. \Ta. 1; 20 Am. Dec. 96; 12 Conn. 226; 8 Watts, 240; 12 Am. Dec. 268; 1 Am. Lead. Cas. (4th Ed.) 209, 211; 2 Wilson, 145; 2 Dev. & Bat. 360, 363; 3 Leigh, 561; 8 Moore & Payne, 12; 8 C. & P. 11, 18; 16 Pick. 478, 490; 5 B. Mon. 544; 21 Fed. Rep. 761.</p>

<p>]. Divorce—Desertion.</p> <p>Under the divorce law of this State, husband ami wife can not each of them be guilty at one and the same time of wilful desertion of the other, and either or both be entitled to a divorce from the bonds of matrimony.</p> <p>2. Divorce—Pleadings and Frooe.</p> <p>Suits for divorce are governed by the general rule that requires the decree to be justified by both the pleadings and the proof, which must coexist, and therefore must correspond.</p> <p>8. Divorce—Oodi.usion of Parties.</p> <p>The state is an implied party to all suits for divorce, and the court must take care, and in some way see that divorces are not granted contrary to law, or by suppression of evidence, collusion of parties, or by other methods or for other purposes, in violation of law.</p>

<p>cited Code, e. 110; Code, c. 50, s. 174; 39 W. Va. 17; 37 W. Va. 828; 35 W. Va. 333 336; 21 W. Va. 181; 27 W. Va. 543; 18 W. Va. 309; 40 W. Va. 234.</p> <p>cited 33 W. Va. 229; 15 W. Va. 867; 24 W. Va. 520; 35 W. Va. 335; 2 Spelling, Ex. Relief, §§ 1901-6; 119 U. S. 199; 13 Am. & Eng. Enc. Law, 688-89, notes; 28 W. Va. 388, 396; 11 Ired. L. 47; 27 Gratt. 264; 82 Va. 734; 39 W. Va. 17, 19, 23; Code, c. 135, ss. 1 (par. 1 and 9) 3; 28 W. Va. 314, 318; 27 W. Va. 510, 543, 778, 781, 782; 26 W. Va, 534.</p>

<p>cited Hogg, Plead. & Forms, 144, 88, 164; Works, Courts & Juris. 32, 107,109, 110, 35, 168; Code, c. 125, s. 16; 5 W. Va. 572; Code, c. 124, s. 2; 37 W. Va. 272: 12 Fed. Rep. 474; 28 Neb. 653; 29 W. Va. 794; 6 W. Va. 441.</p> <p>cited Code, c. 123, s. 1, par. 5; Id. c. 125, s. 16; 9 Gratt. 385; 11 Id. 625; Hogg, Plead. & Forms, 145; 2 Tucker, Comm. (s. p.) 102.</p>

<p>Venue—Non-resident Insurance Co—Action.</p> <p>Under the provisions of chapter 123 of the Code, a non-resident insurance corporation may be sued on a policy of insurance in the county where the property insured was situated, or in any county in which it does business, or in which it lias estate or debts due it, or in which the cause of action, or part thereof, arose.</p>

<p>cited 23 W. Va. 639; 6 Pet. 302; 23 How. 477; 1 Greenl. Ev. § 79; 4 Starkie, Ev. 538; 2 Am. and Eng. Ency. Law, 651; 17 S. E. Rep. 184; 16 S. E. Rep. 797.</p>

<p>I.—Fraud to be proved by him who alleges it, but may be inferred.—10 W. Aka, 321; 10 W. Va. 87; 17 W. Va. 717; 29 W. Va. 441; 83 Va. 227; 23 W. Va. 644; 38 W. Va, 259.</p> <p>II.—Failure to testify a circumstance of fraud.—23 W. Va. 639, 645; 36 W. Va. 654; 17 W. Va. 771; Bump, on Fraud. Conv. (3rd Ed.) 54.</p> <p>III.— When husband and wife parties to a contract,'proof of yood faith required, when.—11 W. Va. 122; 23 W. Va. 499; 24 W. Va. 199; 22 W. Va, 673; 24 W. Va. 405; 27 W. Va. 206; 29 W. Va. 441; 94 U. S. 580; 36 Pa. St. 410; Bump, on Fraud. Conv. 56, 57, 58 and 59.</p> <p>IV.— Conveyance fraudulent in fact, not, barred fry section 14, chapter 104, Code.—10 W. Va. 321; 32 W. Va. 705; 12 Gratt. 363.</p> <p>V.—Fraudulent withholding deed, from record, obstructed, plaintiffs’ right.—3 Leigh, 789; 1 Leigh, 179; 6 W. Va. 168; 4 Leigh, 511; Wait on Fraud. Conv. & Creditor Bills, § 292^76 Va. 679; 17 Gratt, S45; 13 Am. & Eng. Ene. Law, 680 and 727.</p> <p>cited Code, c. 105, s 14; 32 W. Va. 507; 36 W. Va. 11,277; 10 \V. Va, 321; 16 S. E. Rep. 364; 35 W. Va. 84, 91, 92, 93; 22 W. Va. 356; 33 W. Va. 624.</p>

I.—Passenger defined.—96 Pa. Si. 267; 2 Am. & Png. Eney. Law, 743. II.—Liednlitg to passenger dependent on contract.—7 Am. & Eng. Ency. Law, 742; 18 Am. & Eng. R. Cas. 170. III.—A railroad ticket is not a 'negotiable instrument.—42 Ohio St. 560. IV.—Exemplarg damages in proper cases may be awarded in West Virginia for eviction, of passenger from train.— 34 W. Va. 65; 36 W. Va, 318; 39 W. Va. 477; 40 W. Va. 271.

<p>cited Starkie Ev. (s. p.) 797; 6 W. Va. 508; 18 W. Va. 299, 659; 20 W. Va. 46; 26 W. Va. 844, 455; 8 W. Va. 515; 10 W. Va. 507, 516, 560; 23 W. Va. 267; Drake, Attach. (6th Ed.) §§ 221, 222, 227, 256, 323; 2 Freeman, Exec. § 260; 1 Tucker (s. p.) 109; Jones, Mortgages, § 702.</p> <p>I.— Unrecorded security for debt.—Code, c. 74, s. 5; 28 W. Va. 744; 26 W. Va. 807; 17 W. Va. 242; 15 W. Va. 829; 12 W. Va. 98; 8 W. Va. 36.</p> <p>II.— Conditional sale void as to creditors if not recorded.—33 W. Va. 293.</p> <p>III.— What constitutes sufficient levy.—Hutchinson’s W. Va. Treatise, p. 795, § 1155; 2 Tuckers Com. Book 3, c. 20, p 366; 1 Munf. 269; Freeman, Ex. §§ 260, 261, 262.</p> <p>IV.—Collateral attack.—52 Midi. 260; Van Fleet, Col. Atele; p. 474, § 469; 38 W. Va. 596; 4 W. Va. 130; 10 W. Va. 10; 26 W. Va. 324.</p>

<p>cited ID Wall. 146; 34 CM CM cc CO * O Oh NX CO P C7' o CO o CM CO d í> o CO Tin <| LO p LO w CO v ' CO uO - d !></p> <p>cited 17 W. Va. 523 <1 Reps. 548; 81 Wis. 67; 29 Amor. Shite Reps. 866-869; 8 Whar. 215; 15 Am. & Eng. Ene. Law, 638 and notes, also 668; z: CO - —I CO X " CO X ¿¾ £ o Cy s to CO > OX CO o to -N O ⅝ o ■ CM • o © 2 CM OV S r o" ^ cc ¾ X (M 7 Watts (Pa.) 372; Pollock on Con. 79-86; Lead. Cases in Eq. vol. 2, part 2,38, star p. 406; Brett’s Lead. Cases in Ep. 131, star p. 64; 4 Dana, 309; 39 Arner. Decis. 407; 30 W. Ya. 1; 7 W. Va. 390; 19 W. Va. 439; 17 W. Va. 717.</p>

<p>1. CONTRACT BY CORRESPONDENCE—OFFER AND ACCEPTANCE.</p> <p>The defendant, T., by letter accompanied by his circular of memoranda for his agents, and his second letter fixing time for his agent S. to commence, left nothing to be implied and nothing to be done but to accept, to which S. replied by accepting T.’s offer unconditionally and without qualification. Held, such written offer and written acceptance constituted a written contract.</p> <p>2. Contract by Correspondence—Construction of Contract.</p> <p>In construing such contract, the court may look to the surrounding circumstances existing when the contract was made, the situation of the parties, the subject-matter of the contract, and the subsequent acts of the parties under the contract.</p> <p>3 Account Stated—Account Current.</p> <p>As between principal and his agent, a traveling salesman, if a current account be rendered, and the agent receiving it retains it beyond such time as is reasonable, under the circumstances, and according to the usage of the business, for examining and returning it, without communicating’ any objections, he is considered to acquiesce in its correctness, and he becomes bound by it as an account stated. On the contrary, if, within such reasonable time, he calls on the other party to explain it, or objects to such account, he is not so bound.</p> <p>4. Instructions.</p> <p>It is not error to refuse to correct a faulty instruction, or to refuse to give the same instruction twice.</p> <p>5. Garnishment in Foreign Jurisdiction—Conflict of Laws.</p> <p>Plaiutiff is a resident of this state. Defendant is a resident of another state. After this suit had been brought, defendant was garnished in the state where he resided, as a debtor of plaintiff; by a creditor of the plaintiff. After judgment had been rendered in this case, defendant moved tiie court to suspend the execution thereof until the question of plaintiff’s liability should be determined in the suit in which defendant had been garnished. It was not error to overrule such motion.</p> <p>Cass in which these principles are discussed and applied.</p>

<p>Credibility of WITNESSES--Jury’s Province—Reversal.</p> <p>The credibility of a witness or witnesses is a question peculiarly within the province of the jury, and when this is the sole question presented on writ of error to the judgment of the circuit court overruling a motion to sot aside the verdict of the jury for tiiis cause alone, this Court will not disturb such judgment.</p>

I.— The demurrer to the MU should be sustained and (he hill dismissed. Fraud is not assignable. Held: it sixty days, “showing by the return thereon that no property could be found from which such execution could be made”— Code, c. 139, s. 7, and c. 50, s. 135.

I.—Party taking application is agent of the company.—31 W. Ya. 851; 1 Beach, Ins. § 370 and notes.

<p>1. Land Contract--Time ok I*krrokm;aNC'k-J'’orkkitukr.</p> <p>In contracts for sale of real estate, lime of performance of its stipulations is not in general, in eo.uily, of the essence of the contract, producing loss or forfeiture of rights.</p>

<p>cited Flack. Comm. Book 3, p. 183; Tuck. Comm. Book, 2 p. 66; Code, c. 65, ss. 1, 8, 10, 11, 12; Id. c. 104, s. 1; 6 Johns. Chy. 194; 1 Harrison (N. J. L.) 107; 2 Ilalst. (N. J. Ch.) 613; 10 Ohio 24; 18 B. Mon. 782; 27 P. F. Smith (Pa.) 27; 1 Const. Rep. (S. C.) 112; 1 McMullan, Eq.(S. C.)35; 2 Rich. Eq. (S. C.) 1; 5 Rice, Eq. (S. C.) 158; 37 W. Ya. 216,221, 233; 39 W. Va. 108; 21 W. Va. 470; 28 S. E. Rep. 2; 17 W. Va. 717; 27 W. Va. 677; 28 W. Va. 774; 12 Leigh, 269; Barton, L. Prac. 376, 877.</p> <p>cited Code, c. 104, s 1; Id. c. 13; 1 Wash. R. Prop. 241, 250, 255, 285; Ang. Lim. § 367; 2 Gill & J. 468; 10 Verger, 94; 1 Dev. 6 Bat. 218; 32 Mo. 357; Dudley, 123; 7 Ga. 20; 1 Mann, 1; 6 Clark, 106; 4 N. H. 107; 7 Mete. 24; 3 Harr. (Del.) 154; 32 Ala. 521; 1 Pom. Eq. Juris. § 416-18; 6 Gratt, 405; 8 How. 210; 4 Otto, 512; 2 Wall. 94; 3 Bro. C. C. 639; 3 Atk. 105; 1 Johns. Ch. 46; 4 Id. 215; 1 Greenl. Cruise R. Prop. 178, 179; 4 Leigh, 30; 11 Gratt. 441; 15 W. Va. 674; 19 W. Va. 169; 4 Moss. 566; 1 Washb. 197; 1 Tucker, 60; 8 Bacon, 208, 209.</p>

<p>cited 4 R. 1.173; 10 R. I. 105; 138 U. S. 104; Sto. Eq. Plead. §§ 251, 252; Wait. Fraud. C. & C. Bills (2nd Ed.) ⅜§ 8, 9, 10,' 11; 37 W. Va. 526-63; 2 Big. Fraud. 473, 488, 496; 31 Am. Dec. 468.</p>

<p>I.—-Answers, S¡‘c. can only be filed at rides or in Court.—88 W. Ya. 409,</p> <p>II.—Reversal for want of necessary parties.—10 W. Va. 1; 10 W. Va. 59; 4 W. Va. 531; 4 W. Va. 571; 11 W. Vu. 175; 21 W. Va. 2; 21 W. Va. 124; 83 W. Va. 155.</p> <p>III.— Compromises favored, in law.—1 Parson’s Con. Bk. 2, § 4, p. 438; 1 Ves. Sr. 444; 6 Munf. 406; 2 Rand. 442.</p> <p>cited 8 W. Va. 291; 10 W. Ya. 298; 12 W. Ya. 371; 8 W. Va. 174; 20 S. E. Hop. 899; Sand, Suit Eq. 694, 695; 38 W. Ya. 409; 11 W. Va. 511; 18 W. Va. 693; 22 W. Va. 444.</p>

<p>1. Justice of the Peace—Summons—Commencement of Action.</p> <p>In issuing a summons to commence an action for the recovery of money, in order that the suit may bo considered commenced or pending, the justice who issues such summous must sign it.</p> <p>2 Justice of the Peace—Attachment—Affidavit.</p> <p>An attachment may be sued out before a justice, if the plaintiff files his affidavit at the commencement of his action, or at some time during its pendency.</p> <p>3. Jurisdiction of Justice—Summons—Attachment.</p> <p>In order that jurisdiction may bo conferred upon such justice, the summons must be properly issued and served upon the defendants, or an attachment properly issued must be levied upon the property of the defendants in such case.</p>

<p>cited 54 Am. & Eng. R. Cas. 158, 238, 328, 640; Wood, Ry. Law, 1066, note; 48 Am. & Eng. R. Cas. 381, 376-77; McKinney, Eel. Serv. § 67; Beach, Ry. Big. §§ 13, 53. 59, 88, 142; Bailey, Master’s Liability, Fcl. Serv. 239, 236, 237, 242, 283, 318, 319; 60 Am. & Eng. R. Cas. 75, 81; McKinney, Eel. Serv. 18.</p> <p>cited 28 W. Va. 610, pt. 3, Syl.; 27 W. Va. 145-6-7, 285; 24 W. Va. 37-8; 31 W. Va. 142-43; 37 W. Va. 606, 613; 30 W. Va. 798; 33 W. 135-40; 39 W. Va. 273 4; 78 Va. 745; 2 Am. St. Rep. 82.</p>

<p>cited Wald’s Pollock on Contracts, pp. 498, 499, 500, 506; 61 la. 269; 12 Gratt. 98; 63 N. Y. 280; 67 Mich. 580; Clark on Contracts, pp. 774-5; 19 W. Ya. 167; 6 W. Ya. 249; 27 W. Ya. 1; 11 W. Va. 300, 146; 26 W. Va. 791; 13 W. Ya. 440; 23 W. Va. 558; Code, c. 125, ss. 35, 36; 35 W. Va. 634; 6 W. Va. 168.</p>

<p>Husband and Wijpje—Wbitten Assignment—Evidence.</p> <p>A written assignment from husband to wife confers on her during coverture the equitable and beneficial interest, and at his death the legal title, and is therefore admissible as evidence to prove her title in a joint suit that has survived to her by reason of liis death.</p>

<p>m to Cas. Eq. 165, 203, 216; 1 Johns. Ch. 582; 2 Johns. Ch. 405, 410; 7 Leigh (Vu.) 566, 575-6, 582; 82 Va. 352; 11 Johns. 91; 14 Ala. 777; 66 Ala. 55; 19 Wend. 414; 5 Ohio, 255, 256; 16 Tex. 314, 321, 322, 323; 10 Hump. 9, 12, 13; 8 Ind. 121; - 25 Iowa, 43; 2 Williams (Vt.) 638; 40 Ark. 62; 30 N. II. 354. ro to o co c3 CD > £ CM CO to t o 4⅛ <í <¡ p £> to 40 CO CO ■ CO co Oi CO o CO LO ^ CO . CO ⅞ > 2 ⅛” .CO fe CM on' . ^ CO t-H t> LO <i 4^ a; CO • fe fe <1</p> <p>cited Perry, Trusts, §§ 133, 137, 147, 153-4, 167; 23 W. Va. 475; 1 Lead. Cas. Eq. 206, 216; 222, 223-4; 2 Veru. 264; 30 W. Va. 248; 31 W. Va, 865, 869; 22 S. E. Rep. 172; 22 Gratt. 573; 12 W. Va. 541; 30 Gratt. 744; Pom. Eq. Juris. § 1040; 33 W. Va. 870; 22 W. Va. 541; 12 Leigh, 427; 2 Ran. 384; 27 W. Va. 207 pt. 4 syl.</p>

I.— Creditor secured by deed of trust is bound by its terms unless he dissents or disclaims.—38 W. Va. 409. II.—Deed, fraudulent as to others, r/ood, inter--partes.—32 W. Va. 232; 27 W. Va. 206; 9 W.‘ Va. 552; 24 W. Va. 730. III.—Fraudulent beneficiary can reap no subsequent benefit though his debt be redid.—25 W. Va. 243; 15 N. Y. 334; 4 Comstock, 449; 4 Hill, 424; 2 W. Va. 502; 3 W. Va. 571.

<p>cited 24 W. Va. 279; 1 Bart. Ch. Prac. 481, 483; Story’s Equity, § 831; 14 S. E. Rep. 806; 14 S. E. Rep. 5.</p> <p>cited 26 W. Va. 755, 782; 1 Bart. Ch. Prac. 482, 483, 485, 506, 507; 2 Story, Eq. Juris. §§ 829, 831, 1037; 10 Ga. 282; 1 Story, Eq. Juris. § 190; High, Receivers, §§ 11, 14, 25, 26, 86, 412, 738; 32 W. Va. 34; 20 Am. & Eng. Enc. Law, 51, note; 10 W. Va. 420; 1 Am. & Eng. Enc. Law, 880, note; 97 N. Y. 105; 14 S. E. Rep. 106; 29 W. Va. 344; 20 Am. & Eng. Enc. Law, 47, note 2; 20 Id. sub. sec. 2, notes 1, 2, 3; 20 Id. 305, sub. sec. b. of see. 4; 11 Md. 459; 20 S. E. Rep. 318; 3 Pom. Eq. Juris. § 1334; 25 S. C. 436; 2 Dan'l, Ch. PI. & Prac. § 1736; 2 Pom. Eq. Juris. § 1086; 1 Am. & Eng. Enc. Law, 878; 70 Ga. 312; 7 Paige (N. Y.) 37; 26 W. Va.' 601; 27 W. Va. 435; 40 Ga. 375; 42 Ga. 46; 20 Am. & Eng. Enc. Law, 107, notes 3, 4, 5; 15 W. Va. 810.</p>

<p>cited Daniel Neg. Inst. § 826-831; 102 IT. S. 25; Eob. Pat. § 855 el seq.; 23 W. Va. 253; Eob. Pat. § 863; 37 Fed. Eep. 92; 24 Blatch. 289; Eob. Pat. § 241, notes to § 243 and § 258; 5 Batm. and A. 53; 91 IT. S. 151; 2 Blatch. 474, 194; 5 McLean, 44; 1 Wash. 168; 3 Bann. and A. 616; 6 Fisher, 575; 15 How. 330; 10 Blatch. 122; Eob. on Pat. § 195; 16 Ill. 214 and 207; 15 Am. St. Eep. 806; 1 Beach, Mod. Eq. Juris, p. 78, § 76 et n; 12 How. 57; 66 Ga. 250; Am. and Eng. Eric. Law, p. 84, 91; 32 Mich. 242; 17 Ill. 175; 11 Iowa, 198; 19 Brad. (Ill.) 375; Eob. Pat. § 1231; 14 W. Va. 28; 21 W. Va. 183; 26 W. Va. 64; 35 W. Va. 172; 16 Pet. 1; 20 How. 37, 3; 21 How. 430; 19 Wall. 166; 100 U. S. 239; 102 U. S. 14; 1 Blatch. 412; 10 Fed. Eep. 243; 3 Woods C. C. 316 and 325; 14 Cal. 94; 8 lb. 266; 52 lb. 611; 54 lb. 107; 37 Conn. 205; 29 lb. 475; 81b. 505; 11 lb. 388; 3 Ga. 47; 22 lb. 246; 2 Kelly 106; 36 Ill. 490; 42 Ill. 18; 75 lb. 354; 91 Ill. 20; 93 lb. 215; 103 lb. 562; 104 Ill. 491; 3 Bradw. 239; 1 Ind. 89; 5 lb. 396; 24 lb. 14; 80 lb. 598; 26 La. Ann. 15; 40 Md. 540; 90 Mass. 303; 117 Mass. 290; 8 Met. 40; 3 Cush. 16; 1 Allen, 502; 2 lb. 14; 6 Cush. 469; 13 Gray, 11; 132 Mass. 205; 21 N. J. L. 665; 36 lb. 92;-5 R, I. 515; 7 E. I. 550; 11 Eich (S. C.) 657; 6 Lex. 515; 22 Graft. 254.</p> <p>cited 23 W. Va. 253; 10 How. (IT. S.) 99; 106 IT. S. 613; 99 U. S. 547; 6 Blatch. (U. S.) 356; 1 Holmes (U. S.) 317; 8 Blatch. (IT. S.) 113; 24 Iowa, 231; 35 N. Y. 65; 17 WLs. 61; 70 Ala. 469; 41 Ark. 418: 5 Snead, 441; 26 Vt. 574; 16 W. Va. 117; 75 III. 170; 1 Dan’l Neg. Inst. 752.</p>

<p>Partners—Judgment Against Firm—Service of Process.</p> <p>Where a judgment is rendered against two partners on a partnership debt, and one of the partners has not been served with process, nor appeared to answer the action, such judgment is valid as to the partner served with process; and an execution issued thereon should not be quashed, on his motion, on the sole ground that the process was not served on his copartner.</p>

<p>1. Appeal from a Justice—Time for Taking Appeal.</p> <p>Where a party desires to appeal from the judgment of a justice which has been rendered against him, goes to the justice’s office within ten days after the date of such judgment, and informs the justice that he wishes to take an appeal, and the justice, being engaged at the time, promises him to prepare a bond, and bring it to liis place of business for execution, and such party pays no further attention to the matter until after the ten days have expired, the justice failing to comply with his promise within the ten days, these facts, stated in a petition to the judge of the circuit court in vacation, are not sufficient cause for granting an appeal, as prescribed by statute, within ninety days after the date of said judgment.</p> <p>‘¿. Appeal from a .Justice— Granting Appeal by Circuit Court.</p> <p>The good cause for not having taken the appeal within ten days required by section 174 of chapter 50 of the Code, must be such as would authorize a court of equity, if file suit had been in the circuit court, to enjoin a judgment of such court till a new trial of the case could be had when a party had failed to apply to the common-law court during the term for a new trial; such, for instance, as fraud, accident, mistake, or surprise, or some adventitious circumstance beyond the control of the party.</p>

<p>cited 67 Ind. 560; 28 La. Ann. 454; 31 Mo. 62; 1 Conn. 525; 52 Conn. 512; 101 II. S. 225; 3 John’s C. II. (N. Y.) 501; 11 Mass. 421; 52 Ill. 18 6 8 Wheaton (II. S.) 229; 11 Wheaton (U. S.) 199; 26 Gratt. 354; 27 W. Va. 677; 29 Gratt. 628; 56 la. 366; 60 Ga. 82; 87 Pa. St. 510; 36 Kan. 610; 122 IT. S. 496; 31 Fed. Rep. 588; 34 Kan. 32; 72 Ga. 101; 29 Gratt. 628; 28 Gratt. 49; 38 Ohio, 406; 97 Ill. 93; 29 Ill. 444; 31 Ark. 554; Am. & Eng. Enc. of Law, Vol. 8, p. 656, § 6, 7; Warvelle on Vendors, Vol. 2, p. 618, § 16; 4 Rand. 282; 3 Gratt. 68; 14 W. Va. 66, 3d syl.; 93 N. Y. 124; Cowp. R. 432; 10 W. Va. 87; Wait on Fraudulent Conveyances, § 369; 19 N. Y. 417; 17 W. Va. 718, p’ts 7, 8, syl.; 29 Ill. 444; 5 Me. 47 L; 22 S. G. 512; 24 Kan. 780; 22 W. Va. 356; 8 Wheat. (U. S.) 229; 8 Wall. (U. S.) 370; 7 Allen (Mass.) 146; 3 Wash. 546; 14 Me. 370; 3 Grant. (Pa.) 237; 11 Gratt. 477; 3 Dana (Ky.) 439; 91 U. S. 485; 29 W. Va. 521; 39 N. Y. 317; 29 Gratt. 628, 629; Phillips, Ev. 425, 625; 8 Term Rep. 474; 3 S. & R. 355; 4 Dal. 152; 11 Pet. 199; 2 Lomax, 441; 29 W. Va. 453; 39 W. Va. 325; 2 Russ. 170; Wm’sExr’s(7 Eng. Ed.) 1794; 6 Sims, 504; 20 Deav. (Eng.) 356, 365, 866; 12 Phila. (Pa.) 88; 1 Den. (N. Y.) 517. "</p> <p>The decree of Dec. 4, 1894, docs not adjudicate all the questions arising in the cause. It is not appealable.—27 W. Va 215; 29 W. Va. 131.</p> <p>Creditors should sue.—72 Am. Dec. 203; 62 Am. Dec. 545;</p> <p>64 Am. Dec. 169-175; 8 Am. & Eng-. Enc. Law, 774. When suit may be brought.—39 W. Va. 320.</p> <p>The administrators are proper partus.—15 W. Va. 814.</p> <p>Mrs. Tlurmison is not a competent witness in. this case.—Code, c. 130, s. 23; 14 W. Va. 88; 25 W. Va, 587; 32 W. Va. 20.</p> <p>Mayberry’s opinion about the assets made out from sale book not competent evidence.—21 W. Va, 301; 37 W. Va. 404-5; 1 Greenl. Ev. §§ 117, 118, 82, 91.</p> <p>A person largely indebted makes a voluntary deed for all his real estate leaving an insufficient amount to pay Ids debts, thus imposing on his creditors the risk of losing their debts. Such deed will be held to have been executed with an actual fraudulent intent and both existing and subsequent creditors may have it set aside as fraudulent.—30 W. Va. 620, 647, 650, 655; 10 W. Va. 87, 111, 112; 30 W. Va. 598-9; 29 W. Va. 395; 22 W. Va. 586, 594.</p> <p>No resulting trust to "the wife for money advanced, to husband.— 13 W. Va. 55; 24 W. Va. 410; 29 W. Va. 452; 32 W. Va. 14, 210, 451.</p> <p>A transfer from husband to wife is open to suspicion.—29 W. Va. 453.</p> <p>The burden is upon the -wife to establish her right as against creditors.—11 W. Va. 122; 22 W. Va. 673; 23 W. Va. 499; 24 W. Va. 203; 27 W. Va. 206; 29 W. Va. 453; 39 W. Va. 325.</p> <p>Mrs. Harmison assented to the 'purchase of new goods, after her husband’s death knowing that the proceeds would go into her pocket. She is personally liable.—7 Am. & Eng. Ene. Law, 342 and note 1; 23 Ohio St. 231; 11 Ser. & R. (Fa.) 41; 83 N. 0. 90; 3 S. E. Rep. 160 (Ga); 2 So. Rep. 501; 8 Conn. 587; 20 N. Y. 437; 11 La. An. 472.</p>

Usury defined and leged rate of interest fixed.—Code, c. 96, as. 4, 5. Profit beyond, legal rate of 'interest, reserved or agreed, to be paid, contract is usurious.—2 Paige, Chy. 267. Assignment of debt, usurious in its crea,lion will not cover it from scrutiny of court.—8 Johnson’s Chy. 395. Usury depends on intent—and, cowt will look to the, whole transaction.—Clarke’s Chy. 281.

<p>1 Pleading—Declaration.</p> <p>A declaration containing the necessary averments, so that judgment, according to law and the very right of the cause may be given thereon, is sufficient, although not artistically and critically drawn.</p> <p>2. INSTRUCTIONS.</p> <p>The circuit court, in its sound discretion, may refuse to give numerous instructions which are to (lie same lega! effect, and only vary as to the position of the words, clauses, and sentences used in their construction. It may also decline to give numerous instructions as to facts virtually taken from the consideration of the jury by other instructions given.</p> <p>3. Evidence—Verdict—Reversad.</p> <p>When the evidence appearing in the record plainly, clearly, and decidedly preponderates against the verdict of the jury this Court will reverse the judgment, set aside the verdict, and grant a new trial.</p>

<p>R, E. Fast cited 10 W. Va, 200; 28 Ind. 295; 29 W. Va. 424, 489; 14 Allen, 497; 10 Am. k Eng. Ene. Law, 49, note; 89 Pa, St. 46-8.</p>

<p>1. Failure of Consideration—Purchase-Money Note—Insolvent Vendor.</p> <p>Where a party, by his title bond, covenants to sell a tract of land with general warranty, describing it as containing a certain number of acres, and the vendee executes to him his bonds for the purchase money, one of which is assigned to a third party> and it is subsequently ascertained that there is a material de~ ficiency in the quantity of the land, and it further appears that the vendor is insolvent, a court ofiquitywill not require suih vendee to complete his purchase by paying his said single bilb and to rely upon the hazard of recovering the money so paid from his insolvent vendor.</p> <p>2. Adverse Possession.</p> <p>Possession, in order to be adverse, must be (1) hostile or adverse; (2) actual; (3) visible, notorious, and exclusive; (4) continuous; (5) under claim or color of title.</p> <p>3. Adverse Possession—Inclosures—Color of Title.</p> <p>Where a party goes beyond the limits of the land described in his deed, and claims to hold the same advers- ly, unless he does so under color or claim of title he is limited to his inclosures.</p> <p>4. Promissory Note—Declarations op Maker—Preponderance op Testimony.</p> <p>Where a party became the purchaser of a single bill, and claims that before purchasing the same, he informed the maker of his intention, and such maker replied it was all right, and that he would as soon pay him as the original payee, which is denied by the maker, such claim must be sustained by a preponderance of testimony to constitute an estoppel.</p>

<p>1. Arrest of Judgment.</p> <p>A motion in arrest of judgment must be based only on matter apparent in the record.</p> <p>2. Assignee—Recovery by Assignee — Money had and Received.</p> <p>Recovery may be had by an assignee against an assignor of non-negotiable paper on the common count for money had and received, in indebitatus assumpsit Overruling that feature in point 2 of the syllabus of Nicholas v. Porter, 2 W. Va. IS.</p> <p>3. Assumpsit—Money had and Received.</p> <p>The action of assumpsit, under the count for money had and received, is an equitable action, and applicable to almost every case where money has been received by one, which, in justice and conscience, ought to be refunded.</p> <p>4. Statute of Frauds—Time of Performance.</p> <p>A contract capable of performance, and which may be required to be performed within one year, does not fail under that clause of the statute of frauds (clause 7, chapter 98, Code) requiring an agreement that is not to be performed within a year to be in writing.</p> <p>5. Statute of Frauds—Debt of Another.</p> <p>A promise to pay the debt of another must be in writing.</p> <p>6. Verdict—Moxion’to set Aside.</p> <p>A motion to set aside a verdict must specify grounds. Where the record states that it is because improper evidence was admitted, it is too general.</p> <p>7. I nstructions—Bile op Exceptions—Error.</p> <p>Error based on the giving or refusal of instructions ought to be shown by hill of exceptions giving the instructions and enough of the evidence to show whether they were proper; but where the record otherwise identifies the instruction, and shows an exception, and the whole evidence appears, that will suffice, without such bill of exceptions.</p> <p>8. Record—Exhibits.</p> <p>Where a record or oilier writing 'makes such reference to another writing by number, or other earmark, so that it may be safely identified, that makes such writing a part of the record or writing referring to it.</p> <p>9. Assignee—Recovery by Assignee.—Recourse.</p> <p>An assignee, by way of recourse, may recover against his immediate or any remote assignor of non-negotiable paper, under chapter 99, section 15, Code.</p>

<p>cited Code, c. 32, ss. 6, 7; 34 W. Va. 137.</p> <p>cited Code, c. 32, s. 6; 23 W. Va. 797; 34 W. Va. 137, 139.</p>

<p>cited 35 W. Va. 47, 48; 88 Ind. 206; Perry, Trusts, § 141; White & T. L. Cas. 335; 1 Lomax, s. p. 632; 3 Gratt. 357; 33 W. Va. 573; 26 W. Va. 529; 25 W. Va. 179; 30 Gratt. 745.</p> <p>cited 10 Am. & Eng, Enc. Law, 49, 50, 35, 39, note; 16 Id. 796; Perry, Trusts, § 126; Lewin, Trusts & Tr. 102; 11 Wall. 217; 96 U. S. 30; 32 W. Ya. 259.</p>

<p>cited Code, c. 7, s. 7; Const. Art. Y; Id. Art. IV, ss. 6, 8; Id. Art. VIII, ss. 1, 17,24; 6 W. Va. 575, 576, 590, 591, 592, 594; 28 W.Va. 264; Acts, 1863, c. 78, s. 13; Acts, 1872-3, c. 121; 44 Ohio St. 109.</p> <p>cited Const. Art. IV, s. 6; Id. Art. VIII, s. 24; Id. Art. IX, s. 4; Id. Art. X, s. 1; Code, c. 7, s. 7; 27 W. Va. 253; 3 W. Va. 367; 39 La. An. 161; 33 Conn. 115; 14 Am. & Eng. Enc. Law, 5, note; 15 Id. 621; 31 W. Va. 608, 609,614,616, 618; 135 IT. S. 471; 38 W. Va. 338; 39 W. Va, 142, 179; 8 B. Mon. 672; 36 N. J. L. 101: 27 N. ,L L. 203; 25 Pa. St. 28; 77 Me. 224, 232; 53 Mich. 392; 98 Mich. 104, 361; 45 Wis. 610, 613; 79 N. Y. 588, 589; 39 Tex. 1; 3 Porter (Ala.) 369; 44 Ohio St. 98, 118, 132-4; 100 Ill. 94.</p>

<p>1. Sale— Delivery—Bailee.</p> <p>When logs are delivered, measured, and branded with the brand of the purchaser, at a point or place of delivery in strict accordance with the unequivocal stipulations of the written contract of purchase, the sale is complete, and the title passes to and vests in the purchaser, notwithstanding other provisions in such written contract by which the seller agrees for a fixed compensation safely and without loss or damage to deliver such logs at another and different point for the purchaser. As to the latter part of the contract, the original seller becomes the bailee or agent of the purchaser to secure a safe delivery of the logs, and is in no wise reinvested with the title to or property in such logs</p> <p>2. Instructions—Appellate Court.</p> <p>Where, on critical examination, an instruction is susceptible of more than one construction or meaning, the court will adopt that which, in the exercise of ordinary good sense, was evidently given to it by the trial court and jury.</p> <p>3. Verdict—Evidence—Instructions.</p> <p>On consideration of the whole evidence, as required by legislative enactment, if it appear that the verdict of the jury is sustained by a decided preponderance thereof, the court will not set aside such verdict because the trial court may have given im-61 proper or refused proper instructions, not interfering with or affecting the preponderance of evidence, for such erroneous rulings must be deemed to be harmless error.</p> <p>4. Reversal—Judgment—Harmless Errors.</p> <p>Where, on consideration of the whole record, the judgment is plainly right, the court will not reverse the judgment for errors of law, which, if not committed, would n >t h ive produced a different result.</p>

<p>1. ADMINISTRATORS AND EXECUTORS—WIFE OF INTESTATE.</p> <p>Where a wife is entitled to certain notes and claims ofher deceased husband, and she conveys and assigns said notes and claims to a married woman, upon the consideration that said woman will keep and maintain her during her natural life, and the woman to whom said notes and claims were assigned dies shortly afterwards, and her husband and children reconvey said notes and claims to said widow, she may maintain a suit against the administrator of her deceased husband to compel a settlement of his administration accounts; but, before she can have a distribution of the assets in his hands, the personal representative of the woman to whom she conveyed such claims and notes, and which were reconveyed to her by her heirs, must be brought before the court as a party.</p> <p>2. Judgment—Four-Year Hule—Res Adjudícala.</p> <p>In order that a suit between parties, which has been pending for a time, and been dismissed under the four-years rule, should bar a subsequent suit between the same parties for the same subject-matter, the first suit must have been heard upon its merits.</p>

I.—Appearance to ex parte settlement makes such settlement res judica.—30 W. Va. 243; 2 Woerners Am. L. Ad. § 502, page 1121; 38 Ohio 480, 492; 25 Mich. 428, 435; 21 Hun, 322; 112 Ind. 85, 88. II.—Bill to surcharge should he dismissed if its allegations are denied and not proved.—28 W. Va. 412. IÍI.—Provisional alimony of family.—Code c. 85, s. 14; 1 Woerners Am. L. Ad. c. 9, page 160 et see/, and § 88, p. 180. IV.—Appraisement value presumed to he correct.—2 Woerners Am.

cited 36 W. Va. 329; 38 W. Va. 668; 62 N. II. 579; 90 Mo. 294; 83 Va. 355; 53 Conn. 474; 23 Kao. 358; 20 L. R. A. 714; Code of W. Va.

<p>cited Code, c. 53, ss. 19’ 39; Cook, Stock and Stockholders, §§ 525, 526, 538; 76 Md. 546; 79 Cal. 323; 6 Leigh, 433; Mor. Priv. Corporations §§ 540, 812.</p> <p>cited 2 "Brandt, Sur. § 298 etseq.; Bisp. Eq. § 335 el seq.; 3 Leigh, 272; 75 Ya. 407; 76 Va. 392; 26 W. Va. 742; 51 Vt. 320; 44 Vt. 601; Colebrooke, Col. Sec. 271-275; Bisp. Eq. 390, 397; 57 Iowa, 326; 1 Brandt, Sur. §§ 440, 442; Colebrooke, Col. Sec. 268, 308, 310, 365, §§ 243, 280, 294; 15 N. H. 119; 27 W. Va. 660; Cook, Stock and Stockholders, §§ 538, 539, 468, notes; Colebrooke, Col. See. 344, and authorities cited.</p>

<p>cited 1 Black, Judg. § 171; 7 Leigh, 224; 29 W. Va. 385; 19 Johns. 41; 9 Cow. 437; 70 N. Y. 258; 11 How. 437; 1 Black, Judg. 260; 12 Vt. 617; 33 N. W. Rep. 834, 843; 28 Me. 232; 2 Mod. 308; 52 Me. 481; 1 Black, Judg. § 317; 116 Ind. 35; 15 W. Va. 677; 28 Gratt, 16, 22; 82 Va. 732; 76 Va. 620; 40 W. Va. 224; 89 N. C. 584; 36 Minn. 85; 69 Mo. 281; 10 Ohio St. 584; 30 Mich. 441; 45 Mich. 642.</p> <p>cited 34 W. Va. 748; 35 W. Va. 25; Black on Judg. § 218; 4 Gratt. 407; 31 Gratt. 580, 599; 1 Black on Judg. § 441; 18 Howard 404 (side page).</p>

<p>1. Indictment—Degrees of Murder.</p> <p>The form of indictment for murder, in section 1 of chapter 144 of the Code, again held good for conviction of murder in the first or second degree or any lower grade of homicide.</p> <p>2. Criminal Daw—Change of Venue—Fair Trial.</p> <p>An affidavit for change of venue must state facts and circumstances from which the conclusion is deduced that a fair trial tan not be had, and not merely opinion that it can not, and the court must be satisfied from those facts that he can not or may not get such fair trial, and not from conclusions or opinions of the defendant or his witnesses.</p>

<p>1. Receivers—Order to Pay Money.</p> <p>An order that a receiver pay a fixed sum to a certain person is a personal judgment or decree against the receiver.</p> <p>2. Judgment—Setting Aside Judgments—Review.</p> <p>A final judgment or decree of one term of a court can not be impaired or set aside at another term, because of the close of the first term, unless upon such proceedings as the law points out for review.</p> <p>3. Receivers—Interest.</p> <p>A receiver will not, as a matter of course, be chargeable with interest, unless special circumstances to warrant it appear.</p>

<p>cited 1 Bart. Law Prac. (2nd Ed.) 252; 1 tom. Ex. (2nd Ed.) 581, 582; English, Interp. Stat. § 107; 1 Min. Insts. (3rd Ed.) 43, 44; Sedgewick, Stat. & Const. Law (1st. Ed.) §§ 120, 191, 192.</p> <p>cited 1 Gbit. PI. 464; 4 Minor Inst. 794-95; 1 Bart. Law Prac. 145; 1 Am. & Eng. Enc. Law, 13; Tidd, Prac. 1168; Code, 1819, vol. 1, pp. 497, 498; Code, 1849, c. 173, s. 3; Code, 1860, c. 173, ss. 2, 4; Code, 1868, c. 127, ss. 2, 4; Code, 1891, c. 127, ss. 2, 4; 10 Leigh, 206; 3 W. Va. 148, 14 W. Va. 736; Code Va. 1883, § 3306; Code, 1891, c. 104, s. 19; 14 W. Va. 737.</p>

<p>Henson & Smith cited Code, c. 125, s. 47; 2 How. (H. S.) 237; 101 U. S. 745; 14 Otto, 410.</p> <p>cited Code, c. 125, ss. 46, 47; 15 Graft. 64; 2 Tuck. Comm. 45; 1 H. & M. 25; 14 Otto, 410; 15 W. Ya. 323.</p>

I.— Construction of Deeds.—2 Lomax Digest, top paging 253; 1 Chitty on Contracts (16th Am. Ed.) 105 note, s. 106 note a, 107 note c, 117 note y, 117 note x, 117 Ü. S. 437; 19 W. Va. 483; 26 W. Ya. 469. II.— The rule that a deed is to be construed most strongly against the grantor is seldom to be relied upon.—1 Chitty on Contracts (16th Am. Ed.) 136, 137 and 138; 2 Parsons on Contracts, 506 et seq. and notes.

<p>I.— The bill is not multifarious.—1 Barton’s Equity, 253-256.</p> <p>II.—Jurisdiction as to Peebles, executor.—1 Bob. Prac. 179 192; 1 Bart. Eq. 153; 11 Leigh, 1; 14 Gratt. 209; 11 Gratt. 792; Lomax, Ex. Vol. 1, 242-555; 56 Gratt. 326; Pom. Eq. 278; 2 Wheat. 373; 5 Lea, 353; 10 Lea, 392; 5 Wall. 433.</p> <p>III.— The tenant who rents by the month should not be a party. —1 Bart. Chy. and authorities in note 6.</p> <p>IV.— That a married woman could bind her estate in 1892.— Code of 1891, chapter 66, section 12; Acts of 1893, passed February, 1893.</p> <p>V.— That equity has jurisdiction and that there is no remedy at law.—1 Pomeroy, § 156-279; 3 Pom. Eq. §1128; 25 Miss. 236; 4 Ired. Eq. 131; 12 B. Mon. 479; 4 Leigh, 550; 79 Va. 617; 13 W. Va. 572; 27 W. Va. 555.</p> <p>I.— The bill is multifarious.—Barton’s Chy. Prae. Vol. 1, page 253-4; Story’s Eq. Pleading, § 271.</p> <p>II.—Robert Peebles, executor can not be compelled to account as such, in a foreign jurisdiction under the circumstances of this case; and the Court has no jurisdiction to enter a judgment in rem against him here on account of the location of property in this state, unless that property be seized by attachment or otherwise.—15 Pet. (U. S) 5; 11 Gratt. 610; 15 W. Va. 609; 95 ü. S. 714; 10 Wall. (ü. S.) 319; Hawes on Jurisdiction of Courts, § 233; 44 Mo. 274; 28 Ohio St. 469.</p> <p>III.— The tenant in possession of the property sought to be extended or sold, is a -proper, if not a necessary, party defendant.—'27 Gratt. 777.</p> <p>IV.— The assignment was made by Mrs. Ferguson during cov-erture on the 21.si of .January, 1892, and, was inoperative to charge her separate estate because the provisions of the statute 'were not complied with.—Section 12, chapter 66, of the Code of West Virginia, of 1891.</p>

<p>cited 2 Pom. Eq. Jur. §§ 1051, 1052, 1080, 917; 79 Va. 449; 87 Va. 162; 2 Rob. (old) Pr. 44, 45; 1 Leigh, 163; 1 Gratt. 110; 6 Gratt. 427; 1 Munf. 63; 1 Munf. 98; 21 Gratt. 263; 5 W. Va. 33; 10 W. Va, 243; 16 W. Va. 497; 21 W. Va. 504; 26 W. Va. 440; 24 W. Va. 61; Story’s Eq. Plead. §§ 578, 595, 524; 2 Story’s Eq. Jur. § 1494 and note; 76 Va. 12; 31 W. Va. 487; 106 U. S. 99; 89 N. C. 159; 182 Ill. 80; 47 Elan. 606; 152 Mass. 49; 6 W. Va. 179; 4 Leigh, 474; 120 U. S. 130; 130 U. S. 684; 21 Wallace 342; 76 Me. 71; Code, W. Va. Ch. 104, § 18; 101 U. S. 135; 37 W. Va. 3; Wood on Limitation, 288, 255; 99 Pa. St. 421; 145 U. S. 499; 38 S. Car. 361; 88 Ga. 333; 113 Pa. St. 417; 11 S. W. Rep.(Ark.) 693; 107 Ill. 389; 107 Pa. St. 336; 125 Ind. 421; 39 Pa. St. 92; 37 Vt. 411; 72 Mo. 640; 32 Pa. St. 22; 62 Iowa, 751; 92 Ind. 580; 36 Kan. 628; 34 Pa. St. 12; 40 Vt. 540; 22 N. II. 217; 22 Ohio St. 27; 36 Mich. 487; 10 Pick. 112; 145 Mass. 503; 54 Md. 527; 110 Pa. St. 428; 24 W. Va. 594.</p> <p>cited 5 W. Va. 33; 1 Am. & Eng. Enc. Law, 130; 16 W. Va. 717-722; 8 W. Va. 584; Code, c. 77, s. 25; Id. c. 85 ss. 2, 4, 10; Id. c. 99, s. 14; Id. c. 145, ss. 18, 19, 20; 24 W. Va. 61; 1 Gratt. 110; 23 Gratt. 47; 10 W. Va. 247; 16 W. Va. 546; 87 Va. 170; 2 Sto. Eq. Jur. § 1493b; 10 W. Va. 247; Sto. Eq. PI. §§ 19, 311; Sto. Eq. Jur. § 1483; 4 Johns. Cb. R. 409; 44 Miss. 677, 681; 1 Johns. Ch. R. 547, 548; Mit. & Tyler, Eq. PI. 283, 284; 1 Morris (Iowa) 291, 384; 26 Mo. 253; 2 Edw. Ch. R. 605; 26 Mich. 102; 4 Min. Inst. (s. p.) 1130; 9 Gratt. 379; 25 Gratt. 161; 21 W. Va. 601; 34 W. Va. 217; 23 W. Va. 108; 19 Pick. 112; 32 Pa. St. 22; 72 Mo. 640; 62 Iowa, 751; 36 Kan. 634; 34 Pa. St. 12; 40 Vt. 544; 22 N. II. 217; 22 Ohio St. 27; 145 Mass. 503, 507; 36 Mich. 487; 92 Ind. 580, 588; 105 Mo. 486; 101 Cal. 673; 41 Fed. Rep. 589; 4 Vt. 491. 18 Pa. St. 25; 31 Pa. St. 165; 8 W. Va. 442-3; 105 Mo. 486; 6 W. Va. 168, 178-180; 116 Ind. 80; 101 ü. S. 135, 567; 138 Mass. 570; 50 Tex. 637; 73 III. 606; 5 B. & C. 147; 17 Gratt; 322, 347-48, pt. 11 of syl.; 46 Ohio St. 604; 5 Humph. 290.</p> <p>This is a suit in equity in the Circuit Court of Ohio County by Thompson and Bonnell against the Whitaker Iron Co., the bill alleging: That in February, 1880, Quincy, under whom the plaintiffs claim, agreed with the Whitaker Iron Company, a corporation, to sell it one hundred tons of iron, and, when it was delivered, the company refused to accept it, because it did not comply with the contract. That a correspondence between the parties ensued, and resulted in a final refusal by the company to take the iron, and in a letter of March 11, 1880, communicating such refusal, the company said to Quincy: “We regret we can not help you out, and the iron is here, but will cheerfully aid you in any manner we can in disposing of it. In meantime it will be well cared for, being in our yard, at no ex. pense to you; except any necessary handling and moving out when disposed of. Should anything occur to change our views, or we seethe way clear to use it or find a place for it, we will communicate with you, and will promise to buy no iron of its character without first advising you.” That no correspondence or communication between the parties took place after this letter until March, 1892. That Quincy and those claiming under him permitted the iron to remain, as they believed, in the hands of the Whitaker Iron Company, in accordance with the arrangement suggested in the letter, without inquiry, confiding in the honesty of Nelson E. Whitaker, then its secretary, and later president, and in the safety of the iron in their charge, and trusting the iron would remain in the yard, and trusting that should anything occur to change the views of the company or of said Whitaker, or in case the company could see its way clear to use the iron or find a place for it, the company and Whitaker would communicate with the owners of the iron. That in March, 1892, Bonnell called on Whitaker, then the president of said company, and inquired about the iron, when Whitaker said he did not recollect holding any such iron, when a letter touching the iron was shown him, and then he said he had an indistinct recollection of some iron which the company had sold some years previous, and that might have been it, and promised to look up the matter and report to the owners. That, not hearing from Whita-aker, they wrote him 23d of March, 1892, but received no answer, andón 26th February, 1894, wrote again asking if the iron was accessible so they might dispose of it, and received a reply to the effect that the company, so far as it had been able to investigate, wasted to believe that the iron had been reshipped to Quincy, suggesting the long time that had elapsed, 'questioning the authority of the plaintiffs to discuss the question, and assuring them that the irou was not then in possession of the company, and had not been for a long while, and declining to take the matter up or treat on the subject. That later an attorney demanded the iron of the company, and it refused to deliver the iron or account for its proceeds. The bill alleged that Whitaker and the company conspired to cheat and defraud Quincy and, to that end, sold or used the iron, and converted the same or its proceeds to the use of the company. The defendant demurred to the bill, assigning as causes adequate remedy at law, the statute of limitation of five years, laches, that no discovery could be made by defendants of any value to plaintiffs, and that no right of recovery, or other equity wTas shown by the bill. The demurrer was sustained, and the bill dismissed, and the plaintiffs appeal.</p>

<p>1. Deed of Tkust— Sale by Trustee.</p> <p>When a deed of trust is executed, the law existing at the time of its execution enters into and forms a part of the contract, and such trust is to be enforced as to terms of sale in accordance with the statute on the subject existing at the time said trust was executed; and a subsequent statute providing for sales under deeds of trust, which provides that such sale shall be on a credit, when the law at the date of the trust provided that the sale shall be for cash, will not affect the original contract, and the sale may be made for cash notwithstanding said subsequent statute.</p> <p>2. Deed of Trust—Sale by Trustee—INJUNCTION—Notice to Mortgagor.</p> <p>Where a party obtains an injunction to a sale which is advertised under a trust deed, and one of the grounds upon which the plaintiff'in his bill relies is that notice has not been served upon the grantor, in order that such ground may avail him it must appear affirmatively that such grantor resides in the county.</p>

<p>cited Ang. Wat. § 388, 394-5, 405; 16 W. Va. 282; 25 W. Va. 208; 26 W. Va. 672, 707; Code, 1891, Append, p. 1014, s. 28; 34 W. Va. 127, 232, Syl. pt. 3; Tied. R. Prop. §§ 72, 75; 1 Lom. Dig. 50, 56; Taylor, L. & T. 345; Code, c. 92; Acts 1851, c. 202, s. 7; 40 Am. Rep. 330; 23 Am. Rep. 655; 29 W. Va. 323, 795; 35 W. Va. 95; 98 U. S. 408; Cooley, Torts, 332, 334; 2 Wall. 510, Syl. 1; 13 Pet. 359; 111 Ü. S. 798; 118 IT. S. 346; 62 Am. Dec. ”424; 1 Kent, Comm. (s. p.) 477; 28 Am. St. Rep. 600; 11 N. Y. 408; 27 Am. Dec. 631, 635; 58 Am. Dec. 575; 15 Wis. 691; 4 Duer, 389; 44 Am. Dec. 540; 8 W. Va. 462, 474; 7 Blacf. (Ind.) 373; 19 Ind. 10; 44 Ind. 427; 19 S. E. Rep. 783; 4 II. & M. 200; 2 Call, 316; 5 Call, 515; 22 Gratt. 649; 77 Va. 366; 79 Va. 551; 80 Va. 625; 83 Va. 543, 847; 85 Va. 41; 89 Va. 503; 33 W. Va. 555; 2 Chit. PL 371, 378, 379, 380; 3 Id. 434; Heard, Civ. Pro. 223, 383; 2 Saunders, 252, note 7; 2 Greenl. 653; 19 S. E. Rep. 404.</p> <p>cited 4 Dana, 338; 13 Am. & Eng. Enc. Law, 558, note; 24 Mich. 282; 29 W. Va. 522.</p> <p>cited 89 W. Va. 272; Boom Law, Code, ’91 p. 1004; 6 Car. & Pr. 8; Taylor’s Landlord and Tenant, 402; 29 W. Va. 323; 17 Am. St. Rep. 459; 52 Am. Dec. 655; 25 Am. Dec. 36; 20 Fed. Rep. 71; 73 Am. Dec. 329; 16 Wis. 247; 47 Calif. 536; Bouvier’s Law Diet, “injury”; 34 W. Va. 783; 10 N. J. E. 352; 34 W.'Va. 232; 5 Call, 531; 3 Hen. & M. 127; 3 Hen. & M. 271; 4 Munf. 261; 10 W. Va. 475; Minor’s Institute, 1123.</p>

<p>1. Indictment—Incest—Knowledge of Relationship.</p> <p>An indictment for incest, under section 22, chapter 149, Code 1891, is not bad because it does not state that the man charged knew the relationship of the woman to him.</p> <p>2. Indictment—Incest.</p> <p>Such indictment, charging the woman named to be the daughter of defendant’s brother, is not bad because it does not give the name of that brother.</p> <p>3. Indictment—Date op Offense.</p> <p>An imperfect statement of the date of offense in the indictment is cured by section 10, chapter 158, Code 1891. Therefore, a statement that the offense was “on the 13th day of August, July, 1894,” is cured by that statute.</p> <p>4. Indictment—Statement of Time of Offense.</p> <p>Mode of stating time of offense in indictments.</p> <p>5. Indictment—Statutory Offenses.</p> <p>It is generally both sufficient and necessary, in drafting indictments for statutory offenses, to follow the language of the statute.</p>

<p>cited Const. Art. X, s. 8; 38 W. Va. 108; Code App. p. 1025, ss. 1, 2, 3, 4.</p> <p>cited Code, c. 39, ss. 40, 41; Const. Art. X, s. 8; Cooley, Tax. (Ed. 1876) 102; 7 W. Va. 501; 35 VV. Va. 505; 88 W. Va. 104.</p>

<p>1. Equity Practice—Injunction"—Notice of Motion.</p> <p>Where a bill of injunction is still abmles, not on the court docket, because not matured for hearing, the defendant may move the court to dissolve the injunction; but the opposite party, who does not appear, must have reasonable notice of such motion.</p> <p>2. Contempt-Injunction.</p> <p>A party in contempt can not move to dissolve an injunction.</p> <p>3. Equity Practice—Injunction.</p> <p>In such case, while still at rules, and not matured for hearing, the court, having overruled defendant’s motion to dissolve the injunction, can not proceed to enter a decree settling the principles of the cause.</p> <p>4. Decree—Pleadings and Proof.</p> <p>A decree must be justified by the pleadings as well as sustained by the proof.</p>

<p>cited 5 Mass. 419; 1 Paige, 412; 1 Woodfall, Land. & T. 164; 4 Kent, Comm. (3rd Ed.) s. p. 108, 109; 21 Ga. 183; 1 Pars. Cont. (3rd Ed.) 237, notes; Taylor, Land. & T. 250; 120 N. Y. 635; 15 Ohio, St. 486; 20 W. Va. 46, 53, 54; 20 W. Va. 614; 66 Me. 520, 522; 24 Barb. (N. Y.) 525; 44 N. II. 512; 42 N. IP. 259; 7 Gray, 550; 13 Gray, 219; 33 Cal. 229, 306; 7 N. Y. 472; 109 Mass. 67; 96 Ind. 333, 340; 3 N E. Rep. (Ind.) 142; 107 N. Y. 610; 3 N. E. Rep. 748; 1 Story, Eq. Jur. (5th Ed.) §§ 722, 729; 21 Pac. Rep. 558, 955; 10 W.Va. 777; 35 W. Ya. 194; 5 W. Ya. 149; 12 W. Va. 347; 16 W. Va. 443; 22 WT. Ya. 2; 27 Barb. 415; 20 W. Va. 46, 54; 13 Gratt. 278, 284; 1 W. Ya. 1; 14 W. Ya. 800; 8 W. Va. 308; 15 W. Va. 655, 663.</p> <p>I.—A writ commencing “ The State of West Virginia: To the Sheriff of Ohio County, Greeting,” is one running in the name of the State.—5 W. Va. 432; 14 W. Va. 55; 34 W. Va. 389.</p> <p>II.—In unlawful detainer, it is sufficient if the 'premises are described in summons with convenient certainty with a view to the delivery of possession after judgment.—1 W. Va. 120 121; 14 W. Va. 725, 790; 24 Gratt. 519.</p> <p>III.— The court will judicially take notice of the time when a circuit court begins its term.—1 Greenl. Ev. (15th Ed.) § 6, note b; Wade on Notice, § 1414; 12 Am. & Eng. Enc. Law, 182, n. 2.</p> <p>IV.—Notice, under renewal clause, of a desire to reneio a lease vests no estate in the premises.—108 Ill. 528; 7 Hill, 150, 151.</p> <p>V.—All signing a lease as lessees are such to the lessor.—15 W. Va. 657.</p> <p>VI.— One lessee of several has no single right of renewal.—76 Hun, 68; 19 N. Y. 324; 1 Woodf. Landlord & Tenant, 366.</p> <p>VII.—Parol evidence not admissible to affect rights secured or obligations incurred by a written instrument.—41 W. Va. 314; 27 Gratt. 640.</p> <p>VIII.—Specific performance of a contract for the renewal of a lease will not be decreed unless such contract is certa,in and unequivocal in its essential terms and is capable of being performed.—3 W. Va. 23; 10 W. Ya. 677; 26 Am. Dec. 661, note.</p>

<p>cited 1 Ballard’s Annual, § 584; 2 Id. §§ 47, 506, and cases cited; Hutch. Laud Titles, § 542 and cases cited.</p>

<p>cited 38 W. Va. 135; 36 W. Va. 232; 27 W. Va. 145, 285; 29 W. Va. 98; 38 W. Va. 33, 207, 525; 66 Mich. 277; 28 W. Va. 732; 31 W. Va. 116.</p> <p>cited 27 W. Va. 285; 38 W. Va. 273; 28 W. Va. 732; 34 W. Va. 500, 513; 139 U. S. 551; 144 Va. 110; 16 W. Ya. 307; 21 W. Ya. 486, 709, 741; 26 W. Ya. 116; 30 W. Va. 27; 12 W. Va. 116; 23 W. Va. 229; 36 W. Va. 232, 234. CO CO Ttl ^ !=i ® ^ & 05 CO C7» 05 pc ¿T1 lO CO . 05 : lo ⅛ GO t-ao ^ o ^ -r . _ GG 05 T—f</p>

<p>cited 1 High, Inj. § 22; Sand, SuitEq. 185; 34 W. Va. 406; 12 S. E. Rep. 724; Code, p. 728; Code Va. 1849; 1 Bart. Law Frac. 100, 104; 17 Graft. 321; Md. Stats.; 13 Ala. 208; 48 Am. Dec. 52; 30 W. Va. 200; 8 Am. & Eng. Enc. Law, 200; 1 Greenl. Ev. § 74.</p> <p>cited Code, e. 133, s. 2; 26 W. Va. 821; 20 W. Va. 244; Code, c. 104, s. 18; 28 W. Va. 340; Bump, Fraud. Con. (2d Ed.) 53.</p>

<p>CRIMINAL Law—Writ of Error.</p> <p>A writ of error does not lie to this Court from an order of the circuit court reversing the judgment of an inferior court in a criminal case, and remanding the same for further proceedings.</p>

<p>1. Evidence—Expert Medical Testimony—Hallucination.</p> <p>Whether criminal charges preferred by a female patient against a physician are the result of hallucination, while uuder the influence of chloroform and ether, is a question that must be determined by expert medical evidence, as it is not a matter of ordinary human experience or knowledge.</p> <p>2. Evidence—Expert Medical Testimony--Conflict of Evidence.</p> <p>If such testimony establishes the probability of such hallucination, and such charges depend entirely on the uncorroborated and contradicted testimony of such patient, the jury should acquit the prisoner.</p> <p>3. Evidence—Expert Medical Testimony.</p> <p>Whether a person with a wooden leg is incapacitated from kneeling, and thereby rendered incapable of commiting an offense in the manner charged, is a subject-matter of inquiry, justifying the introduction of expert medical testimony, to assist the jury in arriving at a correct conclusion.</p> <p>4. Instructions—Witness.</p> <p>It is error for the court to refuse to instruct the jury that, if they believe the testimony of a witness on any material point is untrue, they are at liberty to disregard her whole testimony.</p> <p>5. Instructions—Witness.</p> <p>It is error for the court to refuse to instruct the jury that it is their duty to scrutinize with care and caution the uncorroborated and contradicted testimony of a witness.</p>

<p>Reversal—Incompetent Evidence.</p> <p>A decree appearing plainly right from the competent evidence in the case will not be reversed because of the admission of incompetent evidence.</p>

<p>Reversal—Incompetent Evidence.</p> <p>A decree appearing plainly right from the competent evidence in the case will not be reversed because of the admission of incompetent evidence.</p>

<p>1. Constitutional Law—Toll Bridges and Ferries—Assessment of Taxes.</p> <p>Section 63 of chapter 29 of the Code, which provides that the assessment of toll bridges and ferries shall be made by the assessor by ascertaining the annual value, and multiplying such annual value by ten, is not unconstitutional, under the provision of section 1 of article X of the Constitution, which provides that taxation shall be equal and uniform throughout the state, and all property, real and personal, shall be taxed in proportion to its value, to be ascertained as directed by law.</p> <p>2. Constitutional Law—Assessment of Taxes—Uniformity of Assessments.</p> <p>The legislature has power to prescribe the method by which the valuation of any class of property may be ascertained, and, where the value of the same class of property is ascertained throughout the state in the same manner, such valuation can not be regarded as unconstitutional for lack of uniformity or equality.</p> <p>3. Constitutional Law—Taxation of Property—Uniformity of Assessments.</p> <p>The Constitution prescribes what property is to be taxed, and the legislature prescribes the manner in which it shall be taxed, which mode of taxation shall be equal and uniform as to all classes of property.</p> <p>4. Constitutional Law—Uniformity of Taxation.</p> <p>A tax upon all business of the same class, which is uniform as to that kind of business, is not unconstitutional.</p> <p>5. Constitutional Law—Construction of Statutes.</p> <p>Where the meaning of the Constitution is clear, the court, if possible, must give the statute such a construction as will enable it to have effect. It is always to be presumed that the legislature designed the statute to take effect, and not to be a nullity.</p> <p>6. Toll Bridges—Assessment of Taxes—County Court—Circuit Court.</p> <p>Where the valuation of a toll bridge for taxation has been fixed by the assessor as provided for in section 63 of chapter 29 of the Code, neither the county court, on application to correct such assessment, nor the circuit court, upon appeal from the refusal of the county court to make such correction, can correct and fix the valuation of such toll bridge by taking the opinion of witnesses as to what would be a reasonable valuation of such toll bridge for taxation.</p> <p>7. Toll Bridges—Jurisdiction of Court of Appeals.</p> <p>This court has jurisdiction, on writ of error from the judgment of the circuit court on such an appeal, to review the same, in a case of this character.</p> <p>8. Toll Bridges—Assessment of Taxes.</p> <p>Section 63 of chapter 29 of the Code provides for the assessment of toll bridges, which includes the franchises of toll bridges under the last clause of section 1, article X, of the Constitution, and provides for ascertaining the yearly value of a toll bridge. The value for taxation under that section is estimated from the earnings. It does not provide for assessing the real estate belonging to the bridge separately, and for that reason the legislature required the assessment to be placed on the personal property books.</p>

<p>Non-negotiable Instruments—Assignee of Non-negotiable Note.</p> <p>The assignee of a note not negotiable can only recover from a remote assignor the consideration paid such assignor by his immediate assignee for such note.</p>

<p>1. Specific Performance—Prerequisites to Specific Performance.</p> <p>In order that a contract may be specifically enforcedin a court of equity, it must be upon a valuable consideration, reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it is made; it must be, in general, mutual in its obligations and its remedy.</p> <p>2. Specific Performance—Mutuality of Contract.</p> <p>A contract, to be specifically enforced, must be mutual; that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, from personal incapacity, the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.</p> <p>3. Specific Performance—Agreement as to Chattels—Compensation in Damages.</p> <p>A court of equity will not entertain jurisdiction for specific performance of an agreement respecting goods, chattels, stock, dioses in action, and other things of a merely personal nature, where compensation in damages furnishes a complete and satisfactory remedy.</p>

<p>cited 9 W. Va. 252; 17 W. Va. 190; 15 W. Va. 628; 35 Iowa 191; 38 W. Va 694; 29 S. W. Rep. 320; Patt. R’y Ac. Law, § 35; Shear. & Red. Neg. § 429.</p> <p>cited 38 W. Va. 694; 25 W. Va. 576; 12 W. Va. 116; 23 W. Va. 237.</p>

<p>1. Equity Jurisdiction—Cloud on Title.</p> <p>Equity will exercise jurisdiction to remove acloud restingupon title to real estate where complainant, though having legal title, is in actual possession. It will not exercise such jurisdiction where complainant has legal title, and is not in actual possession, no matter whether his adversary is in or out of actual possession.</p> <p>2. Equity Jurisdiction—Cloud on Title.</p> <p>Equity will exercise jurisdiction in advance to prevent acts which will cast a cloud over title to real estate, on the same principles on which it removes clouds already resting on such title.</p> <p>3. Equity Pleading—Multifarious Bill.</p> <p>A bill held multifarious.</p> <p>4. Ejectment.</p> <p>Queere: Can a person maintain ejectment, though he be in actual possession, against one who either exercises acts of ownership, or claims title to the land in controversy?</p> <p>5. Commissioners of School Lands — Sale of Forfeited Lands.</p> <p>Chapter 95, Acts 1882, does not dismiss proceedings pending at its date, brought underchapter 134, Acts 1872-73, by commissioners of school lands, to sell lands. Chapter 24, section 19, Acts 1893, dismisses such proceedings brought since 12th March, 1891.</p>

<p>1. Parent and Child—Infant’s Services.</p> <p>The father has the right to the custody of his infant child, with the correllative duty of maintenance, from which results his right to the child’s services.</p> <p>2. Parent and Child—Action for Infant’s Services.</p> <p>The father is entitled to maintain an action for loss of services against any one who wrongfully interrupts the rendering of such services, or makes the full rendering of them impossible.</p> <p>3. Parent and Child—Infant’s Injuries.</p> <p>Where a party knowingly engages a minor in a dangerous employment against the known will of the father, and the minor is injured in such employment, such party is responsible to the father for the consequent loss of the services of the minor.</p> <p>4. Parent and Child—Infant’s Services.</p> <p>The gist of the action is the loss of such services.</p>

<p>1. Dower—Prior Liens—Subrogation.</p> <p>Where the owner of a tract of land has allowed the same to be incumbered by deeds of trust and judgment liens, and while it is in that condition he intermarries, and then he and his wife make a conveyance of the land to a third party, in which she did not effectively join, being then an infant, who, out of the purchase money, pays off and discharges said liens in order to relieve the property therefrom, he is entitled to be subrogated to the rights of the parties holding said liens, and such liens are paramount to said wife’s right of dower on the decease of her husband.</p> <p>2. Subrogation.</p> <p>The doctrine of subrogation is not applied in favor of one who has officiously and as a mere volunteer paid the debt of another for which neither he nor his property was answerable, but it will be applied whenever the person claiming its benefit has paid a debt for which another was primarily answerable, and which he was compelled to pay in order to protect his own rights and save his own property.</p> <p>3. Subrogation.</p> <p>The doctrine of subrogation is that one who has the right to pay and does pay a debt which ought to have been paid by another is entitled to exercise all the remedies which the credit- or possessed against that other, and to indemnity from the fund out of which should have been made the payment which he has made.</p> <p>4. Dower—Prior Liens—Subrogation.</p> <p>Where the owner of land which is encumbered by trust liens, judgment liens, and liens for the original purchase money, which liens are paramount to the dower right of his wife in the event of his death, sells said land to a third party, who pays >ff and discharges these liens as a part of the purchase money, he is sub-rogated to the rights of said lienors, and, it said liens absorb the entire purchase money, said vendor’s widow is not entitled to dower out of said purchase money.</p>

<p>1. CONTRACT—Breach of Contract—Right of Action.</p> <p>Where a party to a contract notifies the other that he does not intend to abide by or perform it, the other may bring an immediate suit for such damages as he may thereby have sustained, without waiting for the time of performance to expire.</p> <p>2. Contract of Sale—Measure of Damages.</p> <p>When a vendor faiis to comply with his contract, the general rule for the measure of damages is the difference between the contract price and the market price of the article at the time of the breach.</p> <p>3. Contract of Sale—Measure of Damages.</p> <p>But when the circumstances of the case are such that the ven-dee cannot go into the market and supply himself with the article, the rule does not apply, for the reason of it has ceased.</p>

<p>1. Railroad Companies—Live Stock—Ordinary Care.</p> <p>Where a railroad company leaves its railroad uninclosed through a country where domestic animals are allowed to be at large, and thus exposed to the casualties of the animals getting upon the railroad track, it is the duty of the railroad company through its agents, to use at least ordinary care to avoid unnecessary injury to the animals, when found in the way of a train on the road.</p> <p>2. Railroad Companies—Live Stock—Passengers.</p> <p>The paramount duty of the agents of a railroad company engaged in propelling a train is owed to the persons and property in their charge on the train; and if, in freezing weather, it is found that the use of salt on switches is the only effective mode of freeing them from ice, and thus protecting their passengers and themselves from the dangers consequent upon a wreck, they may avail themselves of this method, although it may have a tendency to lure stock to the track, and endanger their lives.</p> <p>3. Railroad COMPANIES—Live Stock—Passengers—Ordinary Care.</p> <p>If the servants of the railroad company in charge of a train, by exercise of ordinary care, can see and save domestic animals which have wandered on the railroad, it is their duty to do so; but this duty must be exercised consistently with the paramount duties they owe to the passengers on the train under their charge.</p>

<p>1. Railroad Companies—Municipal Aid Bonds—Consideration of Stock Subscription.</p> <p>If, at the time a proposition to subscribe to the stock of a proposed railroad is submitted to the voters of a small municipal corporation, the route of such road is located through the corporate limits of such municipality, in the absence of proof to the contrary such location will be presumed to be a part of such prop-sitiou; and if, after the vote is taken, such location is materially changed to a route entirely beyond the limits of such municipality, the right to demand the issuance of the bonds authorized by such vote will be presumed to have been abandoned, even though the authorities of such road should, by leave, obtain the privilege of running trains over Hie track of another road in full operation, and extending through such municipality on a different route and in a different direction.</p> <p>2. Railroad Companies—Municipal Am Bonds—Mandamus.</p> <p>Under such circumstances, a mandamus will not lie to compel the municipal authorities to issue such bonds.</p>

<p>1. PRINCIPAL AND AGENT—APPORTIONMENT OF PAYMENT.</p> <p>If an agent sells his own and his principal’s goods in common, and collects enough to pay his principal, but not enough to pay both, and as an act of his own, indulges the purchaser, he must pay his principal, and can not apportion what he has collected between himself and his principal.</p> <p>2. Voluntary Payment—Lack of Due Diligence.</p> <p>If one under legal duty to ascertain, and with means to ascertain, a fact, pays money in ignorance of it, he can not recover back.</p>

<p>cited Code, c. 10, as. 6, 14; Code, c. 52, s. 14; Code, c. 42, ss. 18, 20; Code, c. 133, s. 15; 41 Fed. Rep. 338; 1 Call, 416.</p> <p>cited Code, c. 133, s. 15; Murfree, Off. Bonds, §§ 710, 723, 724; 23 Ala. 808; 2 Bailey (S. C.) 28; 8 Port. (Ala.) 293; 3 Yeats (Pa.) 321; 1 Swann (Tenn.) 92.</p>

cited the following authorities in favor of the proposition that a writ of error could be granted in such a ease as this to an interlocutory order or judgment, 4 Min. Inst. (1st Ed.) pt. 1, 859; 17 W. Ya. 812, syl. pt. 10; 27 Gratt. 918, 919; 31 W. Va. 710; Code, c. 185, s. 1; Code, 1860, c. 182, s. 1; 34 W. Va, 162; 11 Sup. Ct.

<p>1. Equity—Cancellation of Contract—Mutual Mistake.</p> <p>A party who seeks to cancel a contract of sale because of mutual mistake must allege and show himself prompt, eager, ready, and willing to place the other party to such contract in statu quo.</p> <p>2. Equity Pleading—Amendment of Bill.</p> <p>A bifl in chancery can not be so amended as to introduce new matter, and entirely change the original purposes of the suit.</p> <p>3. Equity—Cloud on Title—Possession.</p> <p>A bill in chancery cannot be maintained by a person holding a deed for, but out of possession of, a certain tract of land, to cancel as a cloud on his title the deed of another claimant (not a tax deed) who may be in possession of such land.</p> <p>4. Equity—Dismissal of Bill—Reservation of Legal Rights.</p> <p>It is improper to dismiss a bill in chancery, involving questions of title, for want of equity, without reserving the legal rights of the parties.</p>

<p>cited 8 W. Ya. 174; 10 W. Ya. 298; 12 W. Ya, 371; 32 W. Va. 195, 335, 556; 33 W. Va. 426; 35 W. Ya. 36; 37 W. Ya. 355; 40 W. Va. 337, 349; 32 Gratt. 657; 75 Ya. 563; 77 Va. 600; 88 Ya. 149; 20 S. E. Rep. 899; 22 S. E. Rep. 516; 4 Gratt. 348; 152 Mass. 136; 5 N. IT. 329; 17 Am. & Eng. Eno. Law, 778, 784, 811; 3 S. & R. (Pa.) 534; 3 P. &. W. (Pa.) 505; 18 Pa. 374; 96 Pa. 61; 5 Munf. 108.</p> <p>cited Sto. Eq. Jur. §§ 404, 412, 413, 414; Bart, Ch. Prac. 336; 21 Gratt. 241, 245; 8 W. Va. 174, 182; 12 W. Va. 393; 37 W. Ya. 208, 210; 10 W. Va. 145; 32 W. Ya. 335; 32 Gratt 657; 77 Va. 600; 78 Va. 413; 75 Ya. 563; Code, c. 79, s. 1.</p>

<p>1. Notary’s Signature—Clerk's Certificate.</p> <p>Certificate of clerk under section 31, chapter 130, Code, verifying a notary’s signature to an affidavit in another state, stating that the signature is believed to be “genuine,” is good.</p> <p>2. Notary’s Signature.</p> <p>Where the official character of a public officer is given in the body of his certificate, there is no need for him to sign officially, by significant letters appended to his name, or otherwise.</p> <p>3. Judicial Notice^Foreign Courts.</p> <p>This Court will take judicial notice that the corporation court of Lynchburg, Va., is a court of record, and will consult the Virginia Code or other law book to impart to it information, under section 4, chapter 13, Code.</p>

<p>1. Specific Performance—Contract for Sale of Land.</p> <p>Where J. and M. are the owners of a lot of land, J. owning two-thirds and M. one-third thereof, and they sell the same to D., and execute to him a title bond therefor, he paying one-third of the purchase money and executing his notes for the residue, and J. subsequently repurchases said lot from D., and takes an assignment of the title bond, and pays M. his portion of the purchase money by giving him credit for the amount on his indebtedness to J., and J. sells said lot to a third party, who pays him the purchase money, said third party, on the payment of said purchase money, acquires the rights and equities of D., and has a right to the specific execution of his contract by obtaining a deed from M. and J.</p> <p>2. Statute of Frauds—Principal and Agent.</p> <p>Where a man merely employs an agent to buy an estate, who buys it for himself, and denies the trust, and no part of the purchase money is paid by the principal, and there is no written agreement, he can not compel the agent to convey the estate to him, as that would be in violation of the statute of frauds.</p>

<p>cited 88 W. Va. 549, 557; 75 Va. 628; 1 Comstock (N. Y.) 550; 6 L. R. A. 278; 15 Minn. 461; 8 Wend. 452; 109 Mass. 72; Abbott, Trial, Ev. 510-16; 21 W. Va. 530; Hogg, PI. & Forms, 179; 37 W. Va. 665; 50 Vt. 494; 5 Am. & Eng. Enc. Law 564; 10 W. Va. 507, 509; 76 Iowa, 47; 3 W. Va. 280; 20 Me. 228; 21 Me. 137; 1 Herman, Est. & Res Judicata, 332; 2 Id. 872,1115; 16 Me. 146; 26 Wis. 84; 30 N. Y. 519; 29 Ga. 312; 35 Vt. 205; 17 Conn. 345; 9 Utah, 476; 43 N. H. 282; 4 Minn. 217; 100 U. S. 578-84; 102 U. S. 68; 18 Gratt. 801; 6 W. Va. 110; Code, c. 7, s. 13.</p> <p>cited 30 W. Va. 107, 113; 86 Va. 92; 44 N. J. Eq. 363; 52 Vt. 24; 2 Am. Rep. 315; 18 Am. Rep. 641; 4 W. Va. 45; 2 Am. & Eng. Enc. Law, 464, n. 6; 7 Exch. 744; 24 Neb. 674; 35 Vt. 476; 5 Am. & Eng. Enc. Law, 630; Murfree, Sheriffs, § 64; 18 Ala. 651; 13 Mass. 295; 38 W. Va. 549; 35 W. Va. 658, 659; 4 W. Va. 48, 49; Steph. PI. 171, 206; 2 Greenl. 275, 276, 221, 282; 1 Chitty (14th Ed.) 483, n. 2; 2 Rand. 20; 1 Rob. Prac. (old) 349, 351, 352, 404, 405; 6 W. Va. 508, 514, 515; 18 W. Va. 582, 299; 20 W. Va. 46; 26 W. Va. 345; 23 Gratt. 636-7-8; 2 Tuck. 290, 291; Doug. 218; Tidd. 792; 3 Rand. 516; 37 W. Va. 706.</p>

<p>1. Negotiable Instruments—Indorsement Before Delivery —Parol Evidence.</p> <p>Where a negotiable promissory note, made payable to a particular person or order, is first indorsed by a third person, and then delivered to the payee, such third person islield to beau origin:! promisor, guarantor, or indorser, according to the nature of the transaction and the understanding of the parties at the time; and this may be shown by parol proof.</p> <p>2. Negotiable Instruments—Understanding of Parties—Original Promisor.</p> <p>If it be shown that the understanding between such third person and the payee at the time of the transaction was that such third person should be bound only collaterally, in such case the payee will not have the right to hold him bound as an original promisor.</p> <p>3. Negotiable Instruments—Joint Promissor—Instructions.</p> <p>Defendant Jones was sued only asa joint promisor, and pleaded the general issue nil debet. The court was asked on his behalf to give the following instruction : “Defendant’s Instruction No. 6. The court instructs the jury that if they believe from the evidence in this case that H. C. Jones indorsed his name on the back of the note sued on in this case as indorser, and not as joint maker thereof, and that at the time the said note was delivered to the plaintiff it knew the said Jones indorsed the said note as an in-dorser thereon, and not as a joint promisor, and that the said plaintiff had said note regularly protested, and had notice sent to the said Jones, as indorser, of such protest, then the jury may consider said facts along with the other evidence in the case, and if therefrom they believe from the evidence that the said Jones was an indoi'ser on the note sued on, and not a joint maker or promisor, they should find for the defendant”—which, being objected to by plaintiff, was refused by the court. Held, this was error to defendant’s prejudice, as the evidence tended to prove the facts upon which it was based.</p>

<p>cited Code, Append. p. 1004.</p> <p>cited Code, c. 44, s. 24.</p>

<p>1. Appearance—Waiver.</p> <p>When an original or amended bill is filed in court, by leave thereof, and the defendant appears and demurs thereto, he thereby waives any objection he may have for want of process, and submits himself to the jurisdiction of the court; and he can not afterwards raise such objection in his answer, or otherwise.</p> <p>2. Equity Pleading—Amended Bill—Immatured Suit.</p> <p>An amended bill is proper to bring to the attention of the court the completed right to maintain a suit which was prematurely brought on an inchoate right.</p> <p>8. Public Officers—Illegal Acts of Public Officers.</p> <p>The state is not bound by the unauthorized or illegal acts of its officers, nor can its title to a tract of land be transferred, divested, or affected, in any manner or to any extent, by such unauthorized or illegal acts; and all persons who deal with such officers do so at their peril, in all matters wherein such officers exceed their legitimate powers.</p> <p>4. Tax Sales—Purchase by State—Illegal Acts of Public Officers.</p> <p>Where land has been sold for taxes, and purchased for the state, and the clerk of the court illegally places such land on the land books for succeeding years In the former owner’s name, and such land is again delinquent, and sold, by direction of the auditor, for the taxes of such succeeding years, such sale is illegal and void, and the purchaser acquires no title by reason thereof; and the clerk’s deed made in pursuance of such sale is wholly void, and will be set aside.</p> <p>5. Title in Land Sold for Taxes.</p> <p>Chapter 194, Acts 1871, is repealed by virtue of the provisions of chapter 117, Acts 1872-73, and chapter 130, Acts 1882.</p>