Volume 46 — West Virginia Reports

<p>1. Specific Performance — Equity Pleading — Admissions of Answer — Statute of Frauds.</p> <p>If an answer admits an oral contract for the sale of land, the . same, or substantially the same, as that alleged in a bill, and the statute of frauds is not relied upon as a defense, no proof of the contract, or of delivery of possession under it, is required, and no writing is required to attest the contract, (p. 2).</p> <p>2. Specific Performance — Oral Contract — Recission of Oral Contract — Possession.</p> <p>A contract, written or oral, for the sale of land, may be orally rescinded; but mere oral recission does not devest the party of his estate, or bar him of specific performance, without destruction of the written contract, or, if oral, surrender of possession, (p. 3).</p> <p>3. Specific Performance — Oral Contract — Waiver—Possession.</p> <p>Oral waiver or abandonment of an oral contract for the purchase of land will, in equity, defeat specific performance asked by the purchaser, if possession be surrendered to the vendor, but not otherwise, (p. 4).</p> <p>4. Specific Performance — Oral Contract— Waiver — Conversations.</p> <p>An oral waiver of a contract, oral or written, to defeat specific performance sought by the purchaser, must be clear, positive, and above suspicion, and, besides, cannot be proven by mere loose, casual conversation, (p. 4).</p>

<p>1. Supreme Court of Appeals —Jurisdiction—Detinue.</p> <p>In an action of detinue for the recovery of specific personal property, the damages recovered for the detention of the property will he added to the alternative value, named in the judgment, of the property recovered, in deciding the question of jurisdiction in this Court, under s. 4, c. 113, of the Code. (p. 8).</p> <p>2. Appeal — Instructions—Reversal—Error.</p> <p>Whenever a correct instruction is refused, the judgment will be reversed, unless the appellate court can see from the whole record that, even under correct instructions, a different verdict could not have been rightly found, or unless it is able to perceive that the erroneous ruling of the court could not have influenced the jury. (p. 11).</p> <p>3. Instructions — Error.</p> <p>It is the plain duty of a trial court, when asked to do so by either party, to instruct the jury on questions of law involved in the case, when it can thereby aid them in reaching a right conclusion and proper verdict, (p. 12)</p>

<p>1. Judicial Sale — Reservations in Decree — Property Acquired. 46 In a suit to sell land for its purchase money, on which is a saw-J>| mill that is part of the freehold, and the decree to sell provides--— that the sale shall not include the mill, a sale of the land does not pass the mill to the purchaser, (p. 16).</p> <p>2. Judicial Sale — Record—Appeal—Collateral Attack.</p> <p>A court, having- jurisdiction to sell land, reserves from sale a saw mill thereon. Though there is nothing in the record to warrant the reservation, it is not void, but voidable only by appeal, and cannot be collaterally assailed, (p. 16)</p> <p>3. Judicial Sale — Rights of Purchaser.</p> <p>A purchaser under a decree is held to know its contents, and what property or estate he is to acquire (p. 17)</p> <p>4. Judicial Sale — Reservations in Decree — Property Acquired.</p> <p>A sale, under a decree, of property which it does not authorize to be sold, or excepts from sale, passes no title to such property and is void. (p. 17)."]</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Suit by J. R. Fishburne, special receiver, against Kate A. Baldwin and others. Demurrer to the bill sustained, and plaintiff appeals.</p>

<p>1. Equity Jurisdiction — Waste- Injunction.</p> <p>Trivial and vexatious allegations of waste, capable of pecuniary compensation, are insufficient to give equity jurisdiction or authorize the granting of an injunction, (p. 22).</p> <p>2. Injunction — Tenant for Life.</p> <p>An injunction which inhibits a life tenant from “cutting or removing any timber from said land, and from removing the buildings thereon or any part thereof, or from otherwise injuring the same, ” is entirely too broad and indefinite, and interferes with the life tenant’s proper enjoyment of his tenancy, (p. 22).</p> <p>3. Equity Pleading— Waste — Injunction.</p> <p>A bill for an injunction to stay waste must state facts sufficient to show the injury threatened is irremediable by the ordinary process of legal procedure, (p. 22).</p>

Bill by Mary J. Morris, ag-ainst Georgia A. Roseberry and others. From the decree rendered, the plaintiff and certain defendants appeal.

<p>1. Municipal Corporations — Circuit Com-t — Prohibition.</p> <p>Under section 9, chapter 47, Code, “Upon filing of such certifi cate of the result [of the vote on the question of incorporation] and upon satisfactory proof that all the provisions of the foregoing sections of this chapter have been complied with, the circuit court shall, by an order entered of record, direct the clerk of the said court to issue a certificate of the incorporation of such city, town or village.” In deciding upon the sufficiency of such proofs, the court was exercising the legitimate powers conferred upon it by the statute; and, having jurisdiction of the subject-matter, prohibition will not lie, (p 35).</p> <p>2 Municipal Corporations — Certificate of Incorporation — Prohibition.</p> <p>And in entering the order directing the clerk of said court to issue a certificate of the incorporation of such city, town, or .village, after deciding upon the sufficiency of said proofs, the court was performing a merely ministerial duty, as it had no discretion after being satisfied with the proofs, and prohibition will not lie (p 36.)</p>

<p>Appeal from Circuit Court, Doddridge County.</p> <p>Action by Melissa Burbridge against Rudolph Sadler, administrator, and others. Judgment for plaintiff. Defendants appeal.</p>

<p>Error to Circuit Court, Mingo County.</p> <p>Action by Claude R. Davis against the Western Union Telegraph Company. There was a judgment for plaintiff, and defendant brings error.</p>

' Bill by Catherine R. Griffith and others ag-ainst the Blackwater Boom & Lumber Company and others. A decree was rendered, from which defendants appeal.

Action by D. M. Miller against Luther White. One Carney intervened, and issued a second attachment. From a judgment giving-preference to the attachment of Carney, Miller brings error.

<p>Appeal from Circuit Court, Mingo County.</p> <p>Bill by J. N. Murdoch against Eli Baker and others. A decree was rendered from which complainant appeals.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by R. H. Arthur against the city of Charleston. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Circuit Court, Kanawba County.</p> <p>■ Bill by the Gerke Brewing- Company against J. St. Clair. Decree for plaintiff, and defendant appeals.</p>

<p>1. Specific Performance — Parol Contract — Sale of Latid.</p> <p>A court of equity will not enforce a parol contract for the sale of land unless the terms thereof are made certain and definite, and in all respects placed beyond the bounds of mere conjecture by full and clear proof, (p. 104)</p> <p>2. Specific Performance — Parol Contract — Sale of Land.</p> <p>A plaintiff seeking' specific performance of such parol contract must rely upon his own acts of part performance, and not on the repudiated acts of the defendants, or the person under whom the defendants claim, (p. 104).</p> <p>3. Specific Performance — Possession—Constructive Possession.</p> <p>Possession, to be sufficient to sustain a suit for specific performance of a parol contract, must be actual, open, notorious, exclusive, and continuous under the delivery of the plaintiff. Constructive possession of vacant town lots is not sufficient. Such possession remains with the legal title, (p. 105).</p> <p>4. Witnesses — Competency—Corporations—Officers.</p> <p>Persons who are directors and stockholders of a corporation are incompetent to testify against the administrator and heirs at law of a deceased person in favor of such corporation as to any communication or transaction had with such deceased person in their official capacity as such directors, unless such administrator and heirs at law are examined as to such communication or transaction in their own behalf or the testimony of such deceased person touching the same is given in evidence, (p. 104).</p>

<p>1. Ejectment — Order of Survey. — Error.</p> <p>An order of survey and plat or diagram are not indispensable to the trial of an ejectment. It is not error to try it without them. He who wishes such order must ask it, and without delay, (p. 107, 109).</p> <p>2. Plat of Land — Evidence.</p> <p>A plat or diagram of land or premises, shown to be approximately correct, may be used, on a'trial of any kind before a court or jury, to illustrate and apply the evidence, or, in argument, to show the claim of a party, but is not of itself evidence. It is only so in connection with the evidencie of witnesses, (p. 108).</p> <p>3 Appeal — Review on Appeal — Record.</p> <p>Section 9, chapter'131, Code 1891, does not prohibit the Supreme Court of Appeals from considering a case where the facts proven on the trial, and not the evidence, are certified, (p. 110).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by George W. McVey, Jr., administrator, against the Chesapeake & Ohio Railway Company. There was a judgment for plaintiff and defendant brings error.</p>

Action by Warren J. Parsons against C. B. Harrold and others. Judgment for plaintiff, and defendant T. W. Pey-ton and others bring error.

<p>1. DxJE Pr-ocess of ^aw — Taxation—Forfeiture—Constitutional Law.</p> <p>Section 6 of Art. XIII of the Constitution of this State, providing for the forfeiture of lands for the nonentry thereof for five successive years after the year 1869, is not in violation of the fourteenth amendment of the constitution, restraining states from depriving any person of life, liberty, or property, without due process of law. (p. 132, 137).</p> <p>2. Constitutional Law — Taxation—Forfeiture—Non-entry.</p> <p>Although said section of the Constitution provides for the forfeiture of lands containing one thousand acres or more, it does not limit such forfeiture to tracts of land of one thousand acres or more in quantity; and the act of 1873, providing for the forfeiture of a less number of acres than one thousand, for nonentry upon the land books, is merely cumulative, and not inhibited by said section of the Constitution, (p. 133, 134).</p> <p>3. Taxation — Forfeiture—Non-entry.</p> <p>In such cases failure to enter and pay taxes due on land for five successive years, as required by statute, caused the forfeiture of such land to become complete and absolute, and no inquisition, judicial proceeding', or inquest or finding-of any kind was necessary to consummate such forfeiture, (p. 136).</p>

<p>1. Adverse Possession — Tenant for Life — Deed—Stahtte of Limitations.</p> <p>The deed of a life tenant, whose seisin is barred by the statute of limitations, is inoperative, and conveys no title, (p. 142).</p> <p>2. Adverse Possessio n— Tenantfor Life — Ejectment.</p> <p>The reversioner or remainder-man who takes such deed from the life tenant cannot maintain a suit for the possession of the property involved during' the continuance of the life tenancy. (p.142).</p> <p>3. Statute of Limitations — Adverse Possession — Title.</p> <p>The bar of the statute of limitations not only defeats the remedy, but devests the title, and confers it upon the adverse holder, (p. 142)-</p> <p>4. Ejectment — Possession.</p> <p>The plaintiff in ejectment must be entitled to possession at the commencement of his suit. (p. 143).</p>

<p>1. JOib EC — Innuendo—Certainty.</p> <p>In an action for libel, the defamatory words must refer to some ascertained or ascertainable person, and that person, must be the plaintiff. If the words used really contain no reflection on any particular individual, no averment or innuendo can make them defamatory. An innuendo cannot make the person certain who was uncertain before, (p. 146).</p> <p>2 Innuendo.</p> <p>As an innuendo is merely explanatory, it is not capable of proof, (p. 147).</p> <p>3. Libel — Innuendo—Evidence.</p> <p>An innuendo may serve for an explanation to point a meaning: where there is precedent matter expressed or necessarily understood or known, but never to establish a new charge. (p. 147).</p>

Action by C. G. Cleavenger against B. B. Rohrbaugh, sheriff of Barbour County, and others. From an order setting aside a verdict for plaintiff and granting defendants a new trial, plaintiff brings error.

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Guinn Bros, against the Ohio River Railroad Company. There was judgment for plaintiffs, and defendant brings error.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by Sardine M. Hysell against the Sterling Coal & Manufacturing Company. Judgment for plaintiff. Defendant brings error.</p>

<p>1. PARTITION — Evidence—Possession</p> <p>A voluntary partition, not evidenced by writing', in order to defeat a right to such .partition under the law, must be clearly proven^and must be followed by actual possession in severalty of the several parcels, pursuant' to such voluntary partition. Patterson v. Martin,,33 W. Va, 494. (178).</p> <p>2. Co-Tenangy — Possession—Adverse Possession.</p> <p>A tenant in common, out of possession has a right to rely upon the possession of his co-tenant, as one held according to the title, and for the benefit of all interested, until some action is taken by the other evidencing an intention to assert adverse and hostile claim, (p. 178).</p> <p>3 Co-Tenancy — Adverse Possession — Ouster.</p> <p>One tenant in common may oust his co-tenant, and hold in sev-eralty, but a silent possession, unaccompanied with any action amounting to an ouster, or giving notice to the co-tenant that his possession is adverse, cannot be construed into an adverse possession (p. 179).</p> <p>4. Co-Tenancy — Adverse Possession — Disseisin.</p> <p>It is the intention of the tenant or parcener in possession to hold the common property in severalty and exclusively as his' own, with notice or knowledge to his co-tenants of such intention that constitutes the disseisin, (p. 179).</p>

<p>Error to Circuit Court, Summers County.</p> <p>Action by Frank Lively ag-ainst the Southern Building- & Loan Association of Knoxville and others. Judg-ment for plaintiff, and defendants bring- error.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by Bilton McDonald administrator, against J. O. Cole & Co. Judgment for plaintiff. Defendants bring erro*.</p>

<p>1. Mandamus — Contracts.</p> <p>A mere contract will not be enforced by mandamus, (p. 195).</p> <p>2. Constitutional Law — Suits Against State-Contracts.</p> <p>As the state cannot be sued, mandamus or other1 judicial process will not lie against state officers or boards to compel them to execute an executory contract between an individual and the state. Though the state is not in name a party, such suit is against it, within the meaning of the provision of the Constitu • tion prohibiting suit against the state, (pp. 193-195).</p>

<p>Mandamus — Contracts—ConstihUional Law — Suits Against State.</p>

<p>Error to Circuit Court, Monroe County.</p> <p>Action by J. T. Morris against the Clifton Forge Grocery Company and Bowling, Spotts & Co. Judgment for plaintiff, and defendants bring error.</p>

<p>Eminent Domain — Railroads—Damages</p> <p>A verdict finding- an amount of compensation in a proceeding by a railroad company to condemn land that is so high that it must be attributed to prejudice, passion, bias, partiality, or mistake of law or judgment, will be set aside. (p. 203).</p>

<p>Tax Sales — Sheriff’s Affidavit — Deed.</p> <p>A case in which the questions arising- were discussed and adjudicated in Winnings. Eakin, 44 W. Va. 19 (p. 208).</p>

<p>Appeal from Circuit Court, Summers County.</p> <p>Bill by Judson Skaggs against James Mann and others. A decree was rendered from which defendant Mann appeals.</p>

<p>Appeal from Circuit Court, Wirt County.</p> <p>Suit by Z. E. Thorn against N. Sprouse and others. Decree for plaintiff, and defendant N. Sprouse appeals.</p>

<p>Attachment- — Attachment Bond — Damages.</p> <p>A claimant of property seized or sold under an attachment may recover damages in an action upon the attachment bond without having in the first instance recovered damages in an independent suit against the plaintiff in the attachment, (p. 234).</p>

Action by Fred Trump, by Lucy A. Dillon, his next friend, against the Tidewater Coal & Coke Company. There was a judgment for plaintiff, and defendant brings error.

<p>Appeal from Circuit Court, Greenbrier County.</p> <p>Suit by S. E. Price, administrator of Mary P. Alderson, against J. C Alderson and others. Decree for plaintiff, and Margaret L. Price appeals,</p>

<p>Appeal from Circuit Court, Barbour County.</p> <p>Bill by C. G. Cleavenger ag-ainst J. H. Felton and others. A decree was rendered, from which complainant appeals.</p>

<p>1. CONTRACTS— Delivery — Breach—Injunction—Record.</p> <p>Where a contract for the sale of logs has been made by a party at an agreed price, which logs have never been delivered to the party to whom they were contracted, and suit has been instituted upon said contract to recover the contract price from the party to whom they were sold, and the cause for the nondelivery of the logs is attributable to the fact that the title of the plaintiff was defective, and be was enjoined from selling and delivering said logs, the defendant may show such injunction proceedings by producing a certified copy of the record, (p 259).</p> <p>2 Sates — •Chattels— Warranty.</p> <p>A sale of personal chattels implies an affirmation of the vendor that the cbattell is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold. (p. 260).</p>

<p>1. Administrator — Reaso?iable Care.</p> <p>An administrator pursuing- such course as a judicious man, looking- alone to his worldly interests, would, under the circumstances, pursue in his own affairs will be justified in so doing. Ordinary care and reasonable diligence are what are required of him. (p. 262).</p> <p>2. Administrator — Suits—Security for Costs.</p> <p>An administrator is not bound to sue upon a controverted, doubtful demand where he demands indemnity for costs and expense of the suit from those requesting suit, and it is not given. (P- 264).</p> <p>3. Parent and Child— Support of Parent.</p> <p>If a father promises to pay a son for caring for and supporting him, it creates a valid demand in favor of the son. (p. 265).</p>

<p>Error to Circuit Court, Summers County.</p> <p>Action by J. H. Hoover’s administratrix against the Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Vendor’s Litcn — Enforcement—Exchange of Properly — Decree.</p> <p>T. J. and A. E. J. jointly exchanged farms with M,, taking M.’s land at an estimated price of seventeen thousand one hundred and fifty dollars, to be regulated by survey as to number of acres, and taking M.’s bond for two thousands eight hundred dollars, five thousand dollars, and seven thousand dollars difference, reserving a lien therefor on the lands conveyed by them to M. The sale to M. at the price named thirty-two thousand five hundred dollars, was conditioned on M. making sale of same at that price within a few days to C. The seven thousand'dollars bond was turned over to T. J. for his interest in the lands conveyed, and secured by said vendor’s lien. M. failed to make the sale to C. Another contract was entered into between A. E. J. and M., with which T. J. had nothing to do, whereby the two thous- and eight hundred dollars and five thousand dollars bonds were returned to M., and A. E. J. was to pay M. two thousand dollars, difference between his land and M.’s, which was conveyed to A. E. J., and gave to M. his bond for two thousand dollars, which M. assigned to T. J., to apply as a credit on the seven thousand dollar bond held by T. J. Said last contract says nothing about a survey of M.’s land to ascertain the acreage. T. J. brought his suit against M. to enforce his vendor’s lien. M, filed his answer in the nature of a cross bill, and prayed that T. J. be required to amend his bill, making A. E. J. a party thereto, and that he be required to answer his cross bill, and that the differences between M. and A. E. J. be adjudicated therein, and thus effect the claim of T. J. The bill was so amended by order of the court. A. E. J. answered. Depositions were taken, and at the hearing decree was rendered, enforcing- the lein of T. J., and the court went further, and ascertained that, by the payment of said bond of two thousand dollars, the said A. E J. had overpaid M. by the sum of eight hundred and ninety-six dollars, and dismissed defendant’s cross bill. Held, the court erred only in ascertaining that A. E. J. had overpaid, contrary to his own contention that he was to pay the two thousand dollars difference between lands transferred, without any reference to surveys to ascertain the number of acres, (p. 293.)</p>

<p>1. Attachment — Affidavit.</p> <p>Affidavit for attachment may be made before an officer of any county, though to be used in a suit in another county. (p. 295.)</p> <p>2. Attachment — Affidavit— Venue.</p> <p>A venue is not necessary, — that is, its absence will not vitiate an affidavit for attachment,* — if it appear that the affidavit was made before an officer of a certain county, (p. 295.)</p> <p>3. Attachment— Affidavit— Venue.</p> <p>If an affidavit be made before an officer of a certain county shown in the venue or otherwise,'- it will be presumed that it was sworn to in that county, (p. 295.)</p> <p>4. Attachment — Affidavit—Reasonable Time.</p> <p>The ground for an attachment should exist when it is sued out, and for this reason the time between the making of the affidavit and the issue of the attachment should not be unreasonable. The two acts need not be simultaneous, but done within a reasonable time; and what is a reasonable time is to be judged of by the situation of the parties, (p. 29S )</p> <p>5. Attachment — •Affidavit.</p> <p>An affidavit for an attachment from a justice which says that “affiant believes that plaintiff ought to recover thereon” a certain sum is not bad, as not sufficiently positive, (p. 297.)</p> <p>6. Attachment — Affidavit.</p> <p>An affidavit for attachment which says, “The claim of-said plaintiff against the defendant is for professional services rendered by plaintiff, ’ ’ there being two defendants, and the one indebted not being specified, is bad. (p. 298 )</p> <p>7. Appeal — Review on Appeal</p> <p>The supreme court will not consider questions not yet acted on by the circuit court in the case. (p. 298.)</p> <p>8. Appeal — Review on Appeal — Attachment.</p> <p>Where a writ of error is only to a judgment, refusing to vacate an attachment, the balance of the case remaining undecided in the circuit court, the supreme court will consider only matters arising upon the judgment refusing to abate the attachment, (p. 298.)</p>

<p>Injunction — Equity Pleading — Remedy at Law — Justice of the Peace.</p> <p>A bill for an injunction to the judgment of a justice on the verdict of a jury, which shows on its face that the plaintiffs have a plain, adequate remedy at law, is fatally defective; and on demurrer thereto the temporary injunction awarded should be dissolved, and the bill dismissed, (p. 301.)</p>

<p>1. WARRANTY Deed — Title Conveyed — Rights of Grantee — Title Bond.</p> <p>A general warranty deed, without limitation, reservation, or exception conveys all the grantor’s right, title and interest, both legal and equitable, in and to the property embraced therein, including the right of retention of the title to secure the unpaid purchase money due and owing from a prior recorded title-bond purchaser of an undivided interest in such property, and operates as a transfer of such unpaid purchase money to the grantee;, and after due recordation of such deed, and notice thereof, such title-bond purchaser cannot pay such unpaid purchase money to his vendor, the grantor in such absolute deed, except at his own risk and peril, but must pay the same to the grantee before he1 can demand conveyance of the retained legal title. Turk v. Skiles, 4SW. Va.,82. (p. 30S.)</p> <p>2. Warranty Deed — Title Bond — Rights of Grantee — Fraud.</p> <p>It is a fraud upon the grantee in such deed, after delivery and recordation thereof, for the grantor to receive payment of such unpaid purchase money; and such title-bond purchaser must take notice of the recorded condition of the legal title, and he cannot take advantage of such fraud without becoming a participant therein, (p. 306.)</p> <p>3. Deed — Equity of Redemption.</p> <p>The subsequent deed of a grantor, who has by a prior deed conveyed the legal title in trust, can operate only to convey the equity of redemption until such prior deed is released, (p. 306 )</p> <p>4. Equity — Lien—Title.</p> <p>If a person is induced to advance the money to pay off a trust lien on real estate on the assurance that the title to such property is otherwise clear, and take a new trust to secure the money so advanced, and it afterwards turns out that the. title to such real estate is incumbered by title bond, judgment lien, or otherwise a court of equity will keep the original trust alive as a security for the money so advanced, (p. 30V.)</p> <p>5. Equity — Lein—Fraud.</p> <p>In such case the person advancing the money is not a volunteer or an intermeddler, but is the confiding dupe of the fraudulent representative of the borrower, (p. 308.)</p> <p>6. Lien — Title-Bond.—Rights of Purchaser.</p> <p>The subsequent incumbrancer or title-bond purchaser cannot take advantage of the fraudulent practices of the borrower, nor object to the restoration of the prior trust, as he is not injured thereby; but he is left in the same condition he was in prior to the attempted fraud, and this is all he is entitled to ask of a court of equity, (p. 309.)</p>

<p>Error to Circuit Court, Braxton County.</p> <p>John Dickey was convicted of manslaughter, and brings, error.</p>

<p>Error to Criminal Court, Ohio County.</p> <p>George Emblem was convicted of- burglary, and brings error.</p>

Action by the State, for the use of the United States School-Furniture Company, against- P. J. McGuire and others. Judgment for plaintiffs. Defendants bring error.

<p>Error to Circuit Court, Tucker County.</p> <p>Action by the town of Parsons against M. V. Miller and others. Judgment for defendants, and plaintiff brings error.</p>

J. Williams and J. C. Patterson against W. H. Overholt and .others. Judg-ment for plaintiffs, and John W. Harris and other defendants appeal.

<p>1. Easement — Way of Necessity.</p> <p>A way of necessity exists where land granted is completely environed by land of the grantor, or partially by his land and the land of strangers. The law implies from these facts that a private right of way over the grantor’s lands was granted to the grantee as appurtenant to the estate, (p. 346).</p> <p>2. EaSement — Way of Necessity — Prescription.</p> <p>Use of a private way from one’s land over land of another for ten years with the acquiescence of that other will confer a right to such way, but, if the landowner does not acquiesce therein, but denies the right of way, such use will not confer the right of way. (p. 347).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Action by John E. Bias, administrator, against the Chesapeake and Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Greenbrier County.</p> <p>Action by George Claiborne ag'ainst the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Bill by J. M. B. Crim against Mary E. Price and by A. Right & Sons against Lewis Price and Mary E. Price. The cases were tried together, and from the decrees Crim appeals.

<p>1. CONTRACTS — Marriage—Consideration—Fraud.</p> <p>Marriage, in an antenuptial contract, is a valuable consideration; and such contract, cannot be impeached by existing creditors, as fraudulent, unless it be shown that both parties thereto participated therein, or had notice of fraudulent intent. Boggess v. Richard's Adm'r. 39 W. Va. 567. (p. 391.)</p> <p>2. Contracts — Marriage—Breach—Fraudulent Conveyance — Notice —Burden of Proof.</p> <p>When a man enters into a contract of marriage with a woman, and commits a breach thereof, and she sues him for nonperformance, and during the pendency of such suit, to escape the payment of any judgment against him therein, he, under cover of a second contract of marriage with another woman, and under pretense of consideration therefor, conveys all his property, thus rendering himself hopelessly insolvent, if the facts and circumstances are sufficient to justify the presumption of notice to the grantee, of the fraudulent intent of the grantor the burden of proof is shifted to such grantee, and it devolves upon her to prove want of such notice; and, if she fails to testify with regard thereto, such presumption becomes conclusive, (p. 391.)</p> <p>3. Contracts —Marriage— Fraudulent Conveyance —Notice.</p> <p>The facts and circumstances which tend to show notice or knowledge of fraudulent intent on the part of the grantee, the nature, character, and manner of the execution of the contract itself, and the character of the various items thereby conveyed, including a mere equity of redemption in other plainly fraudulent transfers made by him, and the explicitness with which it is set forth, the knowledge on her part of the charge of seduction, the birth of the child, and the pendency of the suit for breach of promise, it being a matter of common notoriety in the community in which she lived, were sufficient to put her on her guard and inquiry; and she must therefore be deemed to have accepted him with all his circumstances, and to have taken the risk of his escape from his first marriage contract, and thereby joined with him in his fraud to defeat a recovery on such first contract, (p. 390.)</p> <p>4. Maeriage — Seduction—Common Law.</p> <p>While the common law loves matrimony, it abhors deceit, fraud, and seduction, and will not permit matrimony to be used by a guilty person to escape the consequences of his fraudulent, deceitful and unlawful conduct, (p. 391.)</p>

S. Holt and others against John M. Holt, administrator of J. F. W.. Holt, and others, to compel defendant Holt to settle the administration accounts- of J. F. W. Holt formerly administrator of M. Holt, and to account for moneys arising from accounts paid and lands sold and belonging to the partnership previously existing between M. and J. F. W. Holt. Decree for plaintiffs, and defend?ants appeal.

<p>Appeal from Circuit Court Putnam County.</p> <p>Action by Sarah Farnsworth against Simon Noffsinger. Decree for defendant, and plaintiff appeals.</p>

<p>1. Res Judicata — Pleading—Error.</p> <p>G. Co. held and owned two notes, made to it by M. & Co., one for two hundred and sixty-eight dollars and seventy-four cents, the other for two hundred and forty-four dollars, both overdue and unpaid. G. Co. brought its action before a justice and recovered judgment for the first note, and afterwards brought its action in the circuit court on the second note. M. & Co. pleaded the judgment on the first note in bar of the action, under section 48, chapter SO, Code. Held error to allow plea filed, (p. 425.)</p> <p>2. Res Judicata — Justice of the Peace — Jurisdiction.</p> <p>Where a party has two separate demands against another, which together exceed the sum of three hundred dollars, judgment recovered upon one before a justice cannot be pleaded in bar of an action on the other, under section 48, chapter SO, Code, (p. 424).</p>

<p>1. Deed — Construction—Reptignant Clauses</p> <p>Repugnant words must yield to the purpose of the grant, where such purpose is clearly ascertained from the premises of the deed, though such words stand first in the grant, (p. 428).</p> <p>2. Deed — Maintenance.</p> <p>A deed made in considera'ion of maintenance, where there has been a failure to furnish maintenance, will be set aside,— more especially where it has a clause of forfeiture for such failure. (p. 431).</p> <p>3. Deed — Cancellation—Fraudulent—Conveyance.</p> <p>To defeat a grantor in the cancellation of a deed because it was made with intent to defraud creditors, there must be a liability chargeable to the grantor at its date, (p 431).</p> <p>4. Depositions — Equity Pleading — Objectioti.</p> <p>Depositions proving a matter not in the pleadings when taken cannot be read to support an answer afterwards filed, setting such matter up, if objected to. (p. 432).</p> <p>5. Equity Pleading — Answer—Negligence.</p> <p>An amended answer should no", be allowed, raising new is sues, where it appears the party knew the facts when he filed his first answer, and is thus guilty of negligence, (p. 433).</p>

<p>1. Set-Off — Pleading—Judgment.</p> <p>A party may plead or not plead a set-off, as he prefers. If he-does not do so, the judgment or decree does not affect it. (p. 435).</p> <p>2. Res Judicata. — Set-Off—Executory Contract.</p> <p>If a creditor agree with a debtor that, if a decree shall be rendered for his debt, he will make a settlement with the debtor of demands constituting set-offs against the debt, and allow the debtor credit for the same on the decree, it is only an executory contract to apply the set-offs, and they are not regarded as pay-' ments, and the decree is not res judicata against them. (p. 435)..</p> <p>3. Set-Off — Payment.</p> <p>The distinction between payment and set-off is that a payment: is, by consent of parties, express or implied, appropriated to the: discharge of the debt, in whole or part. (p. 435).</p> <p>4. SeT-OFF — Payment.</p> <p>What was at first a set-off may, by agreement of the parties applying it, be transformed into a payment, (p. 435).</p> <p>5. Equity Jurisdiction — Set-Off—Payments—Executory Contract.</p> <p>An agreement to apply on a debt items of set-off uncertain and unascertained in amount does not make them payments, but is only an executory contract to apply them, to be enforced by proper proceeding-. Equity has jurisdiction to enforce their application upon a decree of sale of lands, (p. 436.)</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by Charles T. Martin against Celia Kester and others. Decree for defendants, and plaintiff appeals.</p>

<p>Municipal Corporations — Streets—Change of Grade — Surface Water — Damages.</p> <p>A municipal corporation is not liable for damages to a lot by reason of change of a street’s grade operating upon surface water, though it may increase it; but if the work operates, as its direct effect, to collect and cast water in a mass on the lot, the corporation is liable, (p. 443).</p> <p>2. ’PL'stCDusa — Municipal Corporations — Change of Grade — Damages</p> <p>A declaration against a municipal corporation for damages-from flowage of water upon a lot from a change of grade of a street must allege that by the work water was collected and cast in a mass upon a lot. (p. 443).</p> <p>3. Municipal Corporations — Change of Grade — Measure of Damages.</p> <p>In an action against a municipal corporation for damage to a lot from change of grade of a street, the measure of damages is „ the difference between the market value of the lot immediately before and immediately after the change, (p. 444).</p> <p>4. Instructions.</p> <p>The practice of asking several instructions, expressive of the same law, condemned, (p. 444).</p>

<p>Error to Circuit Court Marion County.</p> <p>Action by William Ridgeley against the town of West •Fairmont. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Taxation— Valuation.</p> <p>The object of the State is to collect from every one who claims title to land the taxes thereon, at a fair cash valuation, (p. 458).</p> <p>2. Taxation — Payment.</p> <p>Where there is privity of title, one payment of taxes is sufficient and full satisfaction, whether the land is charged as a whole in the name of one, or the various interests separated and charged to the respective owners, dividing the valuation equitably between or among them as provided in section 25, chapter 29, Code, (p. 458).</p> <p>3. Taxation — Oil and Gas — Forfeiture—Non-entry.</p> <p>Where ag-rantor conveys the gas and oil in a tract of land, and the assessor fails to charge the interest so conveyed on the land book in the name of the grantee, for taxation, with its equitable proportion of the valuation of the land of which it is a part, as provided by said section 25, and the land remains charged as a whole to the grantor at the full valuation, and he keeps the taxes paid thereon, there can be no forfeiture of such gas and oil interest for non-entry for five years in the name of the grantee, (p. 458).</p>

<p>Mandamus — Coupon Bonds — Levy—Railroad Aid.</p> <p>Where coupon bonds have been issued by a district in a county to assist in the construction of a railroad, and the coupons falling' due in a certain year on said bonds have been levied for by the county court of said county, the holder of such coupons must look to the sheriff of the county for payment, and is not entitled by mandamiis to compel a second levy upon the people and property of said district to pay the interest represented by such coupons. (p. 46S.)</p>

<p>Appeal from Circuit Court, Tucker County.</p> <p>Suit by O. S. Wilson & Bro. againet J. S. Carrico and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. Partnership — Partner’s Rights — Corporations.</p> <p>Where a corporation and individual have assumed to enter into a-partnership, and jointly transacted business together, they may recover, by reason of their joint interest, upon obligations made to them in their partnership name, irrespective of their partnership rights and duties as between themselves, or the power of such corporation to execute the powers incident to a partnership. (P- 472).</p> <p>2. Assumpsit — Partnership—Surplusage.</p> <p>In an action of assumpsit, where the plaintiffs are described as partners, but have a joint right of action, the description of them as partners may. be regarded as surplusage, (p. 471.)</p>

<p>1. Attachment — Equitable Assignment — Non-resident.</p> <p>Where a party seeks, by bill in equity and attachment against a non-resident, to subject the profits arising from a contract existing between said non-resident and a third party carrying on business for him in this State, and it appears that said third party, in order to obtain credit from a store to enable him to run his business, agreed with the owner of said store, in the presence of said non-resident and with his consent, that the profits arising from such business should be applied to the payment of merchandise purchased from said store, such an agreement constitutes an equitable assignment of such profits, and, when paid over, cannot be reached by a creditor who garnishes said third party, (p. 478).</p> <p>2. Equity Pleading — Attachment—A?iswer—Replication.</p> <p>Where answers are filed to such bill in equity, making affirmative allegations, which are put in issue by no replication, such affirmative allegations must be taken to be true (p. 476.)</p> <p>3. Equitable Assignment — Parol Contract.</p> <p>A valid equitable assignment of a debt or other chose in action, whether evidenced by a writing or not, may be made by parol as well as by deed, and it is not important whether it be by writing or mere'words, (p. 477).</p>

<p>1. Weit of Error — Evidence—Record—Dismissal.</p> <p>A writ of error to a judgment of the circuit court for alleged errors involving- the evidence alone, and which is not certified or in any manner made part of the record, will he dismissed, as improvidently awarded, (p. 479).</p> <p>2. Biils of Exception — Order Book — Record.</p> <p>Where a judgment is rendered in a case, and the court allows twenty days, under the statute, to make up and obtain from the judge-in vacation bills of exception, such bills of exception, when signed by the judge, must be certified to the clerk of the court, who must enter them upon the order book of such court before they become a part of the record of the case. GriJJith v. Corrothers, 42 W. Va. 59. .(p. 479).</p>

<p>1. Executors — Liability of Sureties — Decree—Evidence.</p> <p>A decree against an executor, finding a sum of money in his. hands from assets, is prima facie evidence against the sureties in his bond. (p. 483).</p> <p>2. Executors — Decree—Evidence.</p> <p>A judgment or decree against an executor in favor of a creditor, payable out of assets, is conclusive evidence upon the exec-tor and his sureties as to the existence and justness of the demand., (p. 483).</p> <p>3. Executors — Attorney's Fees.</p> <p>Reasonable fees of counsel may be paid by an executor or administrator out of the assets, as part of the expense of administration, and if not paid by him, are a lawful charge on the assets. (p. 483).</p> <p>4. Executors — Attorney's Fees — Liability of Sureties.</p> <p>If a court, in a suit administering assets of a decedent, allow an attorney’s fees for services rendered the executor or administrator in the administration, and direct payment by him out of a balance of assets found by the decree to be in his hands, it is a valid demand against the sureties in his bond. (p. 485).</p> <p>5. Executors — Discharge—Notes.</p> <p>If there is a valid demand binding assets of a decedent, it is. not discharged merely by reason of the fact that the executor gives a note therefor signed by him, with the addition to his name of the words, “Executor of-, Deceased.” (p. 484).</p> <p>3. Parent and Child — Gift of Land Certainty.</p> <p>If a father give a son an undivided moiety of a specific tract of land, saying it is to be the west end of the tract, the gift is sufficiently certain and definite, as to the land given, to be enforced, (p. 487).</p> <p>7. . Gift of Land — Consideration—Possession—Improvements.</p> <p>In case of an oral gift of land on meritorious consideration, mere delivery of possession will nor render the gift enforceable; but if, in faith of the gift, the donee make valuable improvements, it will be'enforced in equity by a conveyance, (p. 487).-</p> <p>8. Gift of Land — Liability for Debt.</p> <p>A valid oral gift of land, made before the donor incurs a debt. Land not liable therefor, (p.. 487).</p>

<p>1. Injun ctxon — Affidavits—Dissolution.</p> <p>It is error to dissolve an injunction on affidavits merely when by the pleadings the burden of proof is on the defendant moving-such dissolution, as the plaintiff has the right to cross-examine defendant’s witnesses and rebut their testimony, (p. 490).</p> <p>2. Equity Pleading — Answer—Cross-Bill—Parties—Process.</p> <p>An answer in the nature of a cross-bill praying the affirmative relief, which affects co-defendants, must make such co-defendants parties thereto, and, in default of the waiver thereof by such co-defendants, must have proper process issued thereon before a hearing can be had as to the matters contained in such answer, (p. 491.)</p> <p>Note by Brannon, Judge:</p> <p>I decline to impose upon the defendant the large sum of eight hundred dollars for an injury to the plaintiff of which he was the author. He was a trespasser, riding upon the train after having been given notice not to get up on it, and he remained upon it after the conductor had demanded that he get off, which demand he persisted in disregarding. The company owed him no duty, except not to wantonly injure him. The agent of the conductor kicked his hand from the ladder; but what else could he do? He had a right to remove him; and, as the train was yet in the yard, moving only five or six miles an hour, the speed was not dangerous, nor was the force excessive under the circumstances. He was wedged in between the cars. Must the conductor stop the train? He says he could have jumped of with safety. He should and could have done so. I admit the company would be liable for a wrongful removal by the conductor, though I do not regard this removal wrongful. But it was done by an agent selected by the conductor, and he had no authority to select that agent. It is true the evidence tends to show that theconductor directed the act, and it is claimed to be the same as his act; but that is not sufficient to charge the company. The master is liable only when his agent had authority to employ a sub-agent. Haluptzok v. Railroad Co. (Minn.) 57 N. W. 144 (26 Lawy. Rep. Ann. 739).</p> <p>Judge English, voted with me to reverse the judgment. An equally divided court affirms it.</p>

<p>Error to Circuit Court, Mason County.</p> <p>Action by John Landers, by his next friend, William H. Landers, against the Ohio River Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error to Circuit Court, Ritchie County.</p> <p>Action by Ma.ry M. McDougal against Charles A. Mus-grave. Judgment for plaintiff. Defendant brings error.</p>

Application of S. Moore and others for the removal from office of James II. Strickling-, prosecuting- attorney. From the judgment of removal, defendant bring-s error.

<p>Appeal from Circuit Court, Cabell County.</p> <p>Bill by Bernard Pratte against F. B. Enslow and others.</p> <p>Decree for defendants and plaintiff appeals.</p>

<p>Railroads — Carriers of Passengers — Ticket—Ejection of Passenger.</p> <p>A passenger upon a railroad train must show his ticket, or “conductor’s check” given in the ticket’s place, when called upon by the conductor, and, if he fail to do so, whether willfully or because he has forgotten having the ticket or check, and refuses to pay fare, he cannot recover damages for his ejection, if unnecessary force is not used. (p. S41).</p> <p>Instructions — Error.</p> <p>An instruction which singles out certain facts and makes the case turn on them, ignoring other material facts of the case, is erroneous, (p. S43).</p>

<p>Appeal from Circuit Court Lewis County.</p> <p>Action by E. Ralston against the town of Weston. Judgment for plaintiff, and defendant appeals.</p>

<p>1. CORPORATIONS — Compensation of Officers — Stockholders.</p> <p>A president or director of a private joint stock'corporation can claim no compensation for services, as such, unless allowed by the stockholders, [p. 561] .</p> <p>2. Corporations — Compensation of Officers — Board of Directors— Stockholders — Ultra Vires.</p> <p>A board of directors of a private joint stock corporation cannot allow compensation to a president or director for services, as such, without resolution or by-law of the stockholders, made prior to the rendering of such services. An order for such allowance is ultra vires, and void, and may be repudiated by the corporation. [p. 562].</p> <p>3. Corporations — Compensation of Officers — Fraud.</p> <p>An order of a private joint stock corporation, making an allowance to its president or director for services, as such, made at a meeting where he participated in or was present at such allowance, is prima facie fraudulent and void as to the corporation, [p. 563).</p> <p>4. Corporations — Officers— Trustees.</p> <p>A president or director of a corporation stands as a trustee for it as to property of it committed to his hands for the purposes of the corporation, [p. 563].</p> <p>5. Equity Jurisdiction — Corporations—Ultra Vires.</p> <p>Equity has jurisdiction to declare null an order of the board of directors of a corporation that is ultra vires, and obstructs its rights to its property, though that order be void. [p. 563] .</p>

<p>Error to Circuit Court, Kanawba County.</p> <p>Petition of Prudence G. Robinson to L. M. La Follette, auditor, for allowance of claim. From an order refusing the same, petitioner brings error.</p>

<p>l. Record — Demttrrer to Evidence.</p> <p>If a record entry shows that the defendant demurred in writing-to the plaintiff’s evidence, and that the plaintiff joined therein, it is a sufficient entry to make the written demurrer a part of the record, (p. 572).</p> <p>2. Master and Servant — Injury to Employe — Liability of Employer — Appliances.</p> <p>An employer is not bound to furnish the most approved and safest appliances, nor provide the best method and means of work for employees; and if the same are in use by him, and can be with reasonable care used with safety, it is all that can be required of the employer, (p. 573).</p> <p>3. Master and Servant — Assumption of Risk.</p> <p>An employe accepts service subject to risks incidental to it, and, when the appliances or means or methods of work are known to the employe, he can make no claim upon the employer to change them. He accepts them as they are, and, if injured therefrom, he cannot recover damages, (p. 573).</p> <p>4. Master and Servant — Contributory Negligence.</p> <p>When an employe willfully encounters danger known to him, or patent and open to be seen and known, hecannotrecover damages from his employer for injury therefrom, (p. 574).</p> <p>5. Master and Servant — Degree of Care.</p> <p>When an employe assents to occupy the place prepared for him, and to incur the dangers to which he will be exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it is not a question whether such place might, with reasonable care and expense, have been more safe. His assent has dispensed with that part of the master’s duty to make it so. Having consented to serve in the way and manner in which the business was being conducted, he has no proper grounds of complaint, even if reasonable precautions have not been taken, (p. 574.)</p> <p>6. Master and Servant — Accident—Prudence.</p> <p>An employe cannot recover from his employer for injuries received by reason of an accident which could have been averted by the employe’s proper and prudent discharge of his duties; nor can his personal representative, in such case, if death ensue, maintain an action for damages by reason thereof. (p. 576.)</p>

<p>1. USURY — Ustiry as a Defense.</p> <p>The defense of usury is personal to the debtor, (p. S78.)</p> <p>•2. Usury — Usurious Debt — Deed of Trust.</p> <p>One who purchases land that is under a deed of trust for a usurious debt cannot set up the usury against that debt. (p. S79 )</p> <p>3. Usury — Intervention of Stranger.</p> <p>Where a stranger assumes to pay a usurious debt of another, the intervention of this stranger purges the usury, and he cannot set it up against his obligation to pay. (p. 579).</p> <p>4. Usury — Purchase Money — Debt.</p> <p>If one buy land that is under a deed of trust for a usurious debt, and is allowed out of the purchase money a sum to pay the debt, including the usury, he cannot discount the amount by setting up the usury. (p. 579).</p> <p>5. Injunction — Sale of Land — Usury—Sale Notice.</p> <p>If a sale of land is about to be made for a debt, including usury, an injunction lies against it; but if the sale notice proposes to sell for only the true amount, excluding usury, and so specifies, • an injunction does not lie. ip. 581).</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by Moses W. Spencer against J. B. Sandusky.</p> <p>Judgment for defendant, and plaintiff appeals.</p>

<p>Officers and Elections— Writ of Error — Dismissal—Failure to Prosecute.</p> <p>When the matter in controversy is the possession of an office, and the plaintiff in error fails to file a brief or prosecute his writ of error until after the expiration of the term of the office in question, the writ of error will be dismissed; at the costs of plaintiff in error, (p. S89.)</p>

<p>Judgment — Service of Process — Writ of Error — Appeal.</p> <p>A judgment or decree of this Court upon a writ of error or appeal is conclusive, as to all-matters involved in it, upon all parties served with process in it, even though the service of process to answer in the court below were voidable, (p. 591.)</p> <p>2. PROCESS — Power of Courts.</p> <p>A court has inherent power, in addition to powers specifically-given by statute, to award further process to bring parties before it to answer its judgment, (p. 594).</p> <p>Action— When Actions Begin — Summons—Mechanic’s Lien.</p> <p>An action at law or suit in equity dates from the date of the summons, not from its service; and therefore a suit to enforce a mechanic’s lien, in which the summons issued, but was not served, within six months from recordation of the lien, is not barred by that limitation, (p. 593).</p> <p>4. Deed — Description.</p> <p>A deed, for a description of the land, may refer to another deed or map, and the deed or map is considered as incorporated in the deed itself for description of the land. (p. 590).</p> <p>5. Process — Service of Process — Corporations—Attorney.</p> <p>Service of process upon the president of a defendant corporation, who is attorney for the plaintiff in the suit, is not void, but voidable upon proper exception thereto, (p. 593.)</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by M. A. Brast against the Kanawha Oil Company and others. Decree for plaintiff and defendant oil company appeals.</p>

Actions by Frank & Adler and others against J. Zeigler, and by Bohm Bros. & Co. against the same and other defendants. The causes were consolidated. From the decree, Burgunder Bros. & Co. and others appeal.

<p>Error to< Circuit Court, Payette County.</p> <p>Bill by Thomas G. McKell and wife against the Collins-Colliery Company. Decree for defendant, and plaintiffs bring error.</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Suit by Bettie Wilson and others against Sarah A. Mad dox and others. Decree for plaintiffs. Defendants appeal.</p>

<p>Appeal from Circuit Court, Marion County.</p> <p>Bill by Benjamin S. Wilson and Sarah Tennant against Effie G. Straight and others. Decree for defendants, and plaintiffs appeal.</p>

<p>1. Subrogation — Sureties—Real Estate.</p> <p>Where land is sold by a special commissioner, who takes notes, with sureties, for the deferred installments, and the purchaser failing- to pay said purchase money notes, or any of them, said special commissioner takes judgment on said note or notes against the purchaser and his sureties, and one of the sureties against whom judgment is taken pays off said judgment, he will thereby be entitled to be subrogated to the liens created by taking said judgments and docketing same, not only against the land so sold, but any other real estate owned by said purchaser, situated in the county in which such judgment is docketed, (p. 666.)</p> <p>2. Subrogation — Priorities—Liens.</p> <p>The right of subrogation thus acquired will entitle such surety so paying said judgment to priority over a trust lien executed and recorded on other real estate situated in said county after such judgment was recovered and docketed, should it become necessary to resort to it for satisfaction, (p. 667).</p> <p>3. Equity — Answer—Affirmative Relief.</p> <p>Where a party is not made defendant in a suit in equity, and files a paper in the case, which he terms an “answer and petition,” in which he prays for affirmative relief, and sets up affirmative matter, but upon which no process issues, he can thereby obtain no affirmative relief against a defendant in said suit, (p. 66S.)</p> <p>Note by Brannon, Judge:</p> <p>I agree to a reversal, but not for all the reasons given by Judge English. Crim has preference for money paid as surety over the trust creditors. When a judgment is paid it is ended at law, and equity will not keep it alive for subrogation to prejudice an innocent purchaser, but will let the rule at law prevail. McClaskey v. O'Brien, 16 W. Va. 781, point 7; 2 Bart. Ch. Prac. 1052, 1053; Sheld. Subr. § 34. If the man taking a deed of trust knows that the surety, as such, paid the debt, the surety would get subrogation over him, but not otherwise Brandt. Sur. § 316. Ahern v. Freeman, [Minn ] 48 N. W. 677; Riefe v. Biting, [Iowa] 56 N. W. 285. The judgments were docketed, and constructive notice is, for general purposes, equal to actual notice, and, if so in the present case, it would give Crim preference. Docketing- gives notice of the judgment, but does it go further, and require a subsequent purchaser, who learns that the judgment has been paid, to know also that one of two debtors paid it, and that he was surety? Must he make further inquiry as to this. May he not rather presume that the principal debtor paid, as held in Ahern v. Freeman, supra! If this is not true, you make the docket import what it does not say, — that is, that one of the debtors is principal, the other, surety; and also that the surety paid the judgment. It cannot go so far. Subrogation is the creature of equity to do justice,— a latent equity; an equity will not affect an innocent purchaser for value with a latent equity. See Sherman's Adm'r v. Shaver,, 75Va. 8; 1 Whiíe& T. Lead. Cas. Eq. (4th Am, Ed.) pt. 1, p. 152. Though it is broadly stated that marshaling will not be enforced to the prejudice of third parties, yet that statement is too broad, for it seems that, when once the right of a creditor having a lien on' one property to compel another creditor having a lien on two properties to subject, in the first instance, the property on which the junior creditor has no lien, exists, it is good against a third subsequent lienor, though not against one antedating the one who asks the marshaling, because he had this rig-ht when the third party’s right began. 2 Beach, Mod. Eq. Jur. § 785, says this is the general rule, citing Ball v. Setzer, 33 W. Va. 444, (10S.E.798) Crawfords!. Richeson. 101 Ill. 351, and other cases. Under this principle, as the trust debts are later in date than the Crim debt for the price of the fourth of the mill sold to Douglas, Crim has the right, in the first instance, to put Woods to three-fourths of that mill and the other realty, so as to let Crim’s purchase money be paid out of that fourth. Under some authorities, even this is doubtful. Sheld Subr. § 65.</p>

<p>Appeal from Circuit Court Grant County.</p> <p>Bill by William A. Engeman against James S. Taylor and John E. Taylor. Decree for defendants, and plaintiff appeals.</p>

Certiorari by John T. Davis and others against the County Court of Randolph County, T. P. R. Brown, and others. From a judgment of the circuit court, Brown brings error.

Bill by A. B. Parsons and W. B. Maxwell against F. W. Smith and others. Decree for plaintiffs and for defendant Hutton against defendant Smith, and defendant Leonard appeals.

<p>Error to Circuit Court, Randolph County.</p> <p>Certiorari by the McClure-Mabie Lumber Company against N. S. Brooks. From a judgment dismissing the writ, plaintiff brings error.</p>

<p>1. Justice of the Peace — Appeal.</p> <p>If there has been a full and fair trial on the merits of the controversy in a civil action commenced before a justice, the judgment will not be reversed for mere technical errors, not prejudicial to the fairness of such trial. (p. 737).</p> <p>2. Judgment — Reversal.</p> <p>The party complaining- must show error to his prejudice to-secure reversal of a judgment against him. (p. 737).</p> <p>3. Record — Bills of Exceptions.</p> <p>When alleged bills of exception are not properly certified and made parts of the record, this Court will not consider the grounds of error thereby presented, (p. 737).</p>

<p>Injunction — Motion to Dissolve.</p> <p>On a motion to dissolve a mere ancillary injunction, the circuit court can only he required to investigate the main cause so far as to ascertain that the equities between the parties are sufficiently doubtful to justify the continuance of the injunction until final hearing, (p. 741).</p> <p>Injunction — Appealable Error.</p> <p>The circuit court commits no appealable error in overruling such motion if neither party insists on a hearing of the main cause, and it appears that the dissolution of the injunction may work a greater injustice or mischief to the plaintiff than the continuance would to the defendant. (p. 741).</p> <p>Injunction — Bill-and Answer.</p> <p>Although the answer plainly and positively denies the allegations of the bill, yet, if the facts and circumstances shown by the pleadings, exhibits, and affidavits are strongly presumptive in favor of the plaintiffs equity, it is not appealable error for the circuit court to continue an ancillary injunction, awarded for the purpose of preserving the status of property, until the final hearing, (p. 741).</p> <p>4. Receiver — Appointment,</p> <p>A decretal order appointing a receiver to take possession of and control personal or real property is appealable. Ruffner v. Mairs, 33 W. Va. 6SS, (11 S. E. 5.) (p. 742).</p> <p>5. Receiver — Refusal to Appoint.</p> <p>An order or decree refusing to appoint such receiver is not ap-pealable. (p. 742).</p>

County. Bill by Cecil M. Kester and others, by Ella Kester, their next friend, against W. E. Hill and others. Decree for plaintiffs, and defendants appeal.

Action by the Mountain City Mill Company against G. C. Southern. Judgment for plaintiff was affirmed by the circuit court, and he brings error.

Action by F. P. Hungerman, by his next friend, George A. Hungerman, against the city of Wheeling. Judgment for plaintiff, and defendant brings error.

<p>Error to Circuit Court, Doddridge County</p> <p>Action by Lloyd W. Chapman and another against Lathrop R. Charter and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Error to Circuit Court, Harrison County.</p> <p>Action by Charles Lyon against Earl Vance, doing business as the Vance Hardware Company. From a judgment abating an attachment, plaintiff brings error.</p>