Volume 5 — West Virginia Reports

Owen D. Downey owned a property in Piedmont, Mineral county, known as the “Downey House.” It consisted of two adjoining buildings, built of brick and wood. The latter bad a wing wbicb extended to the rear. On the 29th of March,-1869, he sold to Gilmore F. Sims, the wooden part of the building, and on the 24th of April following he sold to Robert Powell the brick building.

This was an action of trespass, brought to February rules, 1866, in the circuit court of Wood county. r As the questions determined here arose upon the demurrer to the declaration, it is here inserted: “The Baltimore and Ohio Railroad Company were summoned in said circuit court to February rules, 1866, to answer the said Allen S. Barnum of a plea of trespass.

This was an action of assumpsit brought by Davis Prichard against George Dawson, in the circuit court of Marion county, to March rules, 1868. The plaintiff filed a bill of particulars containing numerous items of account, among others one charging the defendant with the payment of a certain order on one Burgoyne in favor of one Dudley, drawn by the defendant. The record appears confused and is greatly deficient in the incidents of the trial.

These cases arose in Preston county. The summons was returnable to December rules, 1868. At the time of issuing the summons an affidavit was filed alleging the institution of the suit, the nature of the account, that the affiant believed the plaintiffs were “justly entitled to recover in said action,” a certain sum, and then stated the terms 'on which an attachment was based.

Action of trover and conversion from Taylor county. Suit brought to March rules, 1866.

Action of debt, brought to November rules, 1867, in circuit court of Jefferson county. The defendant pleaded failure of consideration in the bond. Verdict and judgment for the plaintiff for the whole amount of his claim at June term, 1868.

This was a bill in equity, filed in the circuit court of Berkeley county, at June rules, 1869. Tbe decree sustaining the demurrer and dismissing the bill was rendered at tbe October term, 1869. The opinion of Judge Moore contains an ample statement of tbe matters in controversy. Tbe plaintiff appealed to tbis court.

Michael Ferrell and Charles Jenewein obtained a bill of injunction from the judge of the circuit court of Monongalia county, on the 6th day of April, 1869, against Delia M. Allen, executrix of G. B. C. Allen.

<p>The assignment of bankrupt effects relates back to the commencement of proceedings in bankruptcy; therefore, by operation of law, all attachments bn mesne process, of the property of the debtor, made within four months next preceding the commencement of the proceedings, are dissolved.</p>

<p>1. A case in which the writ of habeas corpus is refused, because the petition, which is unaccompanied with any other evidence except the affidavit of petitioner, and the record of the circuit court by which petitioner is committed, shows that there is probable cause to believe that he is detained regularly by lawful authority.; and does not allege or show good cause, or any cause, why he should be admitted to bail or discharged from custody.</p> <p>2. Qucere 9 Whether this court, upon habeas cmpus, can admit a party to bail who is indicted for felony in the court below.</p>

Action of assumpsit brought by Andy Als in the circuit court of Wood county to August rules, 1869. Judgment at October term following, for plaintiff, for two thousand and ninety-eight dollars and nine cents, with interest on one thousand one hundred dollars thereof from June 7th, 1866, and on the residue from October 80th, 1866. The following is the bill of particulars filed with the declaration : The Parkersburg National Bane, To Andy Als. Dr. 1866.

This was a bill of injunction filed in the circuit court of Berkeley county, at August rules, 1869. • The points at issue are amply stated in the opinion of Maxwell, -I.

This was an action of ejectment brought to December rules, 1866, in the circuit court of Lewis county. Judgment for the plaintiff, November term, 1869. The facts agreed appear in the opinion of Judge Maxwell. The defendant Flesher brought the case to this court.

This cause came from Harrison county. The bill was filed in the circuit court at August rules, 1864, by Thomas Highland.

Suit in equity in tbe circuit court of Tyler county. Bill filed December rules, 1866. It alleged that the oratrix, Sophia, wife of R. C. Orr, was the natural daughter of one Hickman, long since deceased. That she had a brother, also a natural son of Hickman, who took the name of their mother, ■ Hardman.

Action of debt, in the circuit court of Wood county, declaration filed August rules, 1869. Judgment for plaintiff, October, 1869. A statement of the material matters involved appears in the opinion of Maxwell, J. The defendant brought the case here for review.

This was a suit brought by Charles M. Eauch, against the Eathbone Oil Tract Company on the 9th of January, 1868, in Burning Springs township, Wirt county, before a justice. The summons claimed damages for “ unlawfully detaining,” &c., a certain lot of land, the damage being limited to ninety-nine dollars. Judgment for the plaintiff, January 14th, 1868. The defendant appealed to the circuit court of Wirt county.

John D. Staley, David Billmyer, William Rightstine and others, citizens, taxpayers and residents of Jefferson county, filed a bill of injunction in the circuit court of that county, at April rules, 1871, against Logan Osburn, James PI. Moore, John E. Cockerell, David Howell, senior, and John J. Lock. The bill alleged that the county seat of that county was legally located at Shepherdstown, by act of the legislature.

<p>This was a suit in equity in the circuit court of Greenbrier county, brought to August rules, 1866. The object of the bill was to collect a debt clue the plaintiffs, Kent, Paine & Co., from the estate of David Surber. William White was administrator of Surber, deceased, and it appeared from the master’s report that he had, in the years 1862 and 1863, at the instance of pressing creditors, and the widow and heirs, advanced largely of his own means to the payment of the indebtedness of the estate. Such payments had been made in Confederate treasury notes, and were the proceeds of debts due White before tbe war, and collected in such treasury notes.</p> <p>Surber’s widow and heirs were parties defendant with the administrator. A decree was rendered at the September term,. 1868, in favor of the plaintiffs, for their debt, and also decreeing that White, administrator, be reimbursed for sundry amounts advanced by bim, including the sums advanced in the years 1862 and 1863, in Confederate treasury notes. The decree further provided for the sale of the real estate descended from Surber, to satisfy the debts due.</p> <p>The heirs of Surber appealed from this decision.</p> <p>The only error assigned and complained of by the appellants is, that the court improperly allowed the administrator the nominal value of the Confederate money advanced by him in the payment of the debts of the estate. And they state, as a principle of law, to sustain this assignment of error, that “a personal representative of an estate cannot buy up the debts of the estate at a discount and charge the estate with the full value of the same.”</p> <p>As an abstract proposition, we are not prepared to say that the appellants have stated the law correctly. It is admitted that a personal representative cannot use the assets of the estate and buy up the debts at a discount and charge the estate with their face value. But the law is not so clear where an administrator, after having fully administered and faithfully applied all the assets to the payment of the debts, that he may not, with his own funds, buy up debts of the estate and hold them against the estate for their full value without regard to what ho may pay for them.</p> <p>But, in the case at bar, it is unnecessary for us to maintain this distinction. In defending the conduct of the appellee, White, we may concede the law to be as comprehensive as stated by the appellants.</p> <p>Before proceeding further, however, we deem it proper to examine the case as presented by the record, and ascertain, precisely, the matters in controversy. The court Avill observe' that this is an appeal by defendants against a co-defendant; that the appellants have never answered the bill; that there are no pleadings which put any matters in issue between the appellants and appellee; that none of the vouchers or evidences of debt paid,off by the administrator, appear in the record; that there is no proof of the kind of money advanced by the administrator to pay off the debts, except his own admission, and he says to obtain the Confederate money thus advanced, he converted par funds of his own, and paid dollar for dollar without any gain to himself; that there is neither allegation nor proof to show the character of the currency designated as Confederate money — nothing to show that it was not legal and. of par value; that the deposition of M. L. Spotts, Nickell and others, referred to in record, page 32, taken in behalf of the administrator to prove that he had converted his own par funds to discharge the debts of the estate, have been omitted from the record; and that there is no denial anywhere of the facts stated by the appellee, White.</p> <p>The legal conclusions which follow from these premises are, that the appellants, if they ever had any ground to object to the proceedings in this cause, have waived it, because a defendant, who has not answered, cannot be heard in an appellate court upon any matter which might have been adjudicated in the court below, but was not, for the want of an answer to put it in issue; and a fortiori, the appellants cannot here adjudicate, without answer or cross-bill, matters between themselves and their co-defendant. If they desired to exclude th* advancements made by the administrator, upon any ground, they should have put the matter in issue in the pleadings. The fact that the appellants have omitted from the record and failed to except the vouchers paid off and filed in the court below by the administrator, is an admission that they were valid and proper charges upon the estate. And the absence of any attempt to controvert the fact that the administrator, to obtain the money to pay off the debts of the estate, converted par funds of his own and paid dollar for dollar without any gain to himself, admits the truth of the fact thus stated, and for the same reason they omitted the depositions of Nick ell' and others taken in support of the administrator’s testimony on this point. Negatively, thus the case presents itself.</p> <p>Affirmatively, it appears that in January, 1862, when the appellee, White, took charge of this estate, a great civil war was waging between the loyal and seceding States, the latter known as the Confederate State's ; that the county of Green-brier was under the control, and within the military lines c*f the said Confederate States; that the parties to, and the subject matters of this suit, were in said county; that the only currency in circulation in said county, from 1861 to 1865, wa* Confederate money; that this currency was “ impressed upon the country by irresistible force;” that the administrator conducted his administration in the manner which not Only he, but the widow and heirs, thought was best for the interest of the estate, and that he acted under the circumstances i* good faith and with that care and diligence that a judicious man would have exercised in the conduct of his own affair#;. And, in October, 1'866, long after the estate bad been fully administered, the present ajjpellants, with a full knowledge of all the facts, stated in writing that they had urged and requested the administrator to make the very advancements of which they now complain. Have they, then, any equity in their pretensions in this suit ?</p> <p>In their exceptions, the appellants style the appellee “an interlojjer, with no legal rights.” Exactly what is intended by this language, we are unable to deduce from any facts in the record. It seems, however, to be an assumption that White was not a legal administrator.</p> <p>But there is nothing in the pleadings or the proof, to impeach the validity of his qualification. The bill states that he was the administrator, and the bill is confessed by the appellants. Should the court, however, be of opinion that his qualification was invalid, that he should be treated as an executor de son tort, still this fact can avail the appellants nothing, for he took charge of the estate with their full knowledge, consent and approbation — not only this, but he managed the estate as requested by them,.and after he had fully administered, they ratified his course. “A settlement made by. the county court with a de facto guardian, and not complained of in the bill, will be presumed and taken to be fair by the chancellor,” — Crook vs. Turpin, 1 B. Monroe, 186, and when the guardian has been guilty of no fraud, the chancellor will treat him as an ordinary trustee and legal guardian, so far as his liability, for whom he acted, is concerned — Id 185.</p> <p>It is claimed by the appellants, that the administrator paid off various large debts of the estate, in the “ worthless and illegal currency of the Confederate States,” and that it was error to credit him for the same. It is admitted that the debts, thus paid off by the administrator, were valid debts, against the estate, the larger portion of them being secured by trust deeds upon the realty, and the administrator was bound as security for their payment. At the time these debts were paid, the exclusive currency in that section of the country was Confederate money. This currency had a fixed and ascertained value in the community; it was received at its par value in all the ordinary transactions of business; with it any commodity could be purchased at a fair price, and no one hesitated, to receive it at par in the payment of debts contracted upon a specie basis. No law of the federal government, and no statute of this State, ever made it a penal offense to receive or pass this currency, or avoided contracts based upon it, or prohibited its circulation. The supreme court of the United States, and, it is believed, the supreme court of every State which has had the question under review, with, perhaps, the single exception of Louisiana, in some manner, at this time, fully recognize the validity of contracts based upon this currency. In the case of Thorington vs. Smith, the supreme court says: “ While the war lasted, however, they (Confederate notes) had a certain contingent value, and were used as money' in nearly all the business transactions of many millions of jieople. They must be regarded, therefore, as a currency, imposed on the community by irresistible force. It seems to follow as a necessary consequence from actual supremacy of the insurgent government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in the courts of law in the same light as if it had been issued by a foreign government, temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency, cannot be regarded for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with the actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation.” 8 Wallace, 11 and 12. The same doctrine was held in the case of Dean vs. Youneü’s Adm’r, id. 14.</p> <p>The supreme courts of North Carolina, South tiarolina, Georgia, Mississippi, Florida, Arkansas, Virginia and Tennessee have all expressly sustained the validity of contracts, the. consideration of which was Confederate notes, in the following •among other cases: Turley vs. Nowell, 1 Phillips N. C. Eq., 301; Philips vs. Hooker, id. 193,235; Aiken vs. Mooney, 1 Phillips 3ST. C., ■ 31, and id. 471; Austin vs. Kinsman, 13 Rich. S. C. Eq., 259; Wit-sell vs. Riggs, 14 Rich. S. C., 186; Elder vs. Ogletree, 36 Ga., 64; Bailey vs. Milner, 36 Ga., 330; Qherry vs. Walker, 36 Ga., 327; McMath vs. Johnson, 41 Miss., 439; Martin vs. Ilorton, 1 Bush., •629; also, 40 Miss., 530, 565 and 704; Fife vs. Turner, 11 Fla,, 289; Roane vs. Green, 24 Ark., 210; also, id. 269, 540 and 554; Bearing's Admit vs. Rucker, 18 Grat., 426; Lohman vs. Grouch ■ and ais., 19 Grat., 331; and Sherfy vs. Argenbright, 1 Heiskell <(Tenn.), 128.</p> <p>In the last cited case, Sherfy vs. Argenbright, the supreme ■court of Tennessee, after mentioning a ’number of cases in which that court had uniformly decided that contracts based •upon the consideration of Confederate money were utterly void, and then referring to the painful conflict of decisions ■by the different States upon such contracts, say: “ It is certainly to be desired that the rule should be the same wherever its application is called for; that the same measure of justice should be meted to every citizen of the same general government.” The court then refers to the cases of Thorington vs. ■Smith and Younell's Adm’r vs. Dean, 8 Wallace, 1 and 14, and proceeds, “ and we believing that the holding in these two .cases is not repugnant to, but in accordance with, and well sustained by, authority, reason and principle, adopt these judgments as being founded upon the sounder rule in law, and as being in harmony with sound morality, and, as a consequence, expressly overrule all of our cases in which a contrary ■doctrine has been held.” 1 Heiskell, 128.</p> <p>Subsequent to the decisions of this court, in the cases of Brown vs. Wylie, 2 W. Ya. R., 502, and Calfee’s Adm’r vs. Bur■gess, 3 W. Ya. R., 274, in which contracts for Confederate money were held void, it decided the cases of Jarrett vs. Nickell, 4 W. Va. R., 276; Renick vs. Oorrell, Adm’r, &c., id. 627, and Livesay’s Ex’rs vs. Beard, id. 637, in each of which it was held that Confederate money was sufficient consideration to sustain an action, provided the same was evidenced by an obligation executed after the close of the war. The case of Livesay’s Ex’rs vs. Beard was an action on a bond executed in 1866. The defendant filed pleas alleging, in substance, that said bond was executed in lieu and renewal of another bond, executed by the defendant to the plaintiff’s testator, and that the consideration of the latter bond and also of the renewed bond was t the treasury notes of the so-called Confederate States. This court held that these pleas were “fatally defective,” and affirmed the judgment in favor of the plaintiffs. Thus sustaining a judgment rendered upon a bond of which the only consideration was Confederate money. The other cases above cited were similar to this in almost every respect. If these decisions do not expressly, they do substantially, overrule the cases of Brown vs. Wylie and Oalfee’s Adm’r vs. Burgess. The latter were upon the original obligations given to secure the payment of Confederate money, and the former upon renewals of the original obligations, which had been executed to secure the payment of Confederate money. If there is any distinction, it is more in form than in substance. For if the consideration of a bond is utterly illegal and the bond void and contrary to public policy, a simple renewal of that bond cannot purge the consideration of its illegality, and render the bond valid. Brown vs. Tarlcington, 3 Wallace, 377. This court has also held that the payment of a bond in Confederate money, if voluntarily received, extinguished the debt, although the bond was not surreiidered at the time. Washington’s Ex’rs vs. Burnett, 4-W. Va. R., 84, and Hern and' wife vs. Hedriclc, id. 620.</p> <p>We conclude, then, that in view of these decisions, the rulings of the supreme court of the United States and the almost uniform adjudications of the other States, we are fully justified in assuming that it is not the purpose and policy of this court, at this time, to hold that Confederate money is illegal per se, and that all contracts, in any manner connected with it, are utterly void, but rather, on the contrary, have we not every indication, from the spirit and tendency of its recent decisions, to believe that it is determined to fall into-the almost unbroken chain of decisions of our sister States as well as the federal courts, and hold that such contracts, when honestly entered into, without “ any actual intent to further insurrection,” should be enforced to the extent of their just obligation.</p> <p>To ascertain the extent of the recovery in the case under consideration, upon the principles above enunciated, it becomes necessary to enquire what the Confederate money advanced by the appellee, cost him ? For the estate has no more right to speculate upon the administrator, than the administrator has to speculate upon the estate. Both are entitled to even justice and full indemnity. No more, and no less. The facts already reviewed show, clearly, that the money advanced by the appellee, was the proceeds of solvent bonds due him before the war, and corn sold at fifty cents per hushel, the specie price — that this corn was sold, and these bonds collected at the request of the appellants, for the sole and only purpose of making the advancements here complained of, and that the appellee, who was during the whole war a loyal man, would not otherwise thus have converted his Bonds and property into Confederate money. These advancements cost the administrator dollar for dollar in good money, and the court below very properly decreed their nominal value to be the just extent of recovery.</p> <p>But it is not essential to the success of the administrator in this case, that the court should sustain the legality of Confederate money. The court will observe that this is not a contest between the creditors of the intestate and administrator, but between the heirs and the administrator. The estate is ample to pay off all the debts. Courts scrutinize the conduct of a personal representative much more rigidly in favor of creditors than if it were in favor of legatees. Williams on Executors 1629 (N. 1). But even when the rights of creditors are involved, an executor is justified, if he manages the assets of his testator’s estate, as a judicious man, looking alone to his worldly interest would, under the circumstances, pursue in his own affairs.</p> <p>In the case of Kee’s Executor vs. Kee’s Creditors, 2 G-rat., 117, the executors were held justified in paying bonds of their ■testator to the amount of twenty thousand dollars, discounted by an unchartered banking institution, for his benefit, and the consideration of which bonds was the notes of said institution issued contrary to law. And, in the case of Spencer vs. Wilson, 1 Rand., 76, the issues of such unchartered banks were held to be utterly void. So, in the case under consideration, the court may hold Confederate money to be void, and yet., under the circumstances, give the administrator credit for' the Confederate money advanced by him. In this case the circumstances in favor of the conduct of the administrator, are equally as strong as they were in favor of the executors ■ in the case above cited. That was a controversy with the creditors of the estate; this is a contest with the widow and heirs of the estate — the parties who urged and advised the course pursued by the administrator.</p> <p>In Me Call vs. Peachy''s A dm’r, 3 Munf., 288, a case in many respects similar to this, the court held that an administrator’s conduct appearing to be fair, and proceeding, probably, from good intentions, ought to be sanctioned by a coult of equity. Ree, also, Thomas vs. White, 3 Little, 177; Macy’s Executor vs. Fenwick’s Administrator, 4 B. Monroe, 309. For the principles upon which a court of equity acts in regard to executors and trustees, see Elliott vs. Garter et al., 9 Gratt., 557, 558, 559, 560. The principles announced in this case (p. 559, 560,) are sustained by the highest authority, by sound reasoning and good sense. See, also, Nelson’s Executor vs. Page, cfee., 7 Gratt., 160.</p> <p>There is no pretense of unfairness in the conduct of the administrator in this case. He faithfully applied all the assets of the estate to pay the debts, and then, at the request of the family, and to prevent a forced sale of the realty in the unsettled state of the countrj'-, he converted his own property into money, and paid off legal and valid obligations against the estate — the greater part of them liens upon the realty, and for which he was also surety. The estate did not furnish these funds; the appellee paid the debts with his own money, dollar for dollar. It was his right and duty to pay these debts, both as administrator and as surety. If the creditors were willing to take the only currency in circulation at the time, in full discharge of their debts, the estate sustained no loss by having the obligations transferred from the hands of urgent and dissatisfied creditors to the appellee, who was willing to wait until the realty could be sold without sacrifice. The estate, when it pays, in full, every cent thus advanced by the appellee, loses nothing. It simply discharges that amount of valid debts which bound the entire estate, both real and personal. On the other hand, if the appellee is paid the full amount of these advancements, he makes nothing. He is only paid for the property and bonds which he parted with to make these advancements. Not one dollar of Confederate money of his own did he use — hp is not even allowed commission on these advancements. In the language of Pen-dleton, P., in the case of Branch vs. Burnley et ais.: “ He did not carry commodities to market to sell at five times the value for paper to pay this debt, but he collects debts of equal value with that he owed, to pay it, in the ordinary practice of his neighborhood, and under an idea that there was no difference in value between specie and paper.” 1 Call, 135 (156).</p> <p>If the estate is permitted to refuse the payment of the advancements made by the appellee, it makes and he loses just that amount. Justice, equity, good conscience and sound morality, all require that the principles of the decree of the circuit court should be sustained and affirmed.</p>

Bill filed at January rules, 1867, in the circuit court of Mason county. Decree for plaintiff, September term, 1.869. The opinion of Maxwell, J., contains an ample statement of the points at issue. The defendants appealed.

Bill filed at January rules, 1864, to subject land to payment •of purchase money. The defendants were proceeded against as non-residents; they resided within the Confederate military lines. Decree for sale at June term, 1864, of circuit •court of Kanawha county. Decree of confirmation of sale, ■October 7th following, and final decree December 14th, 1864, affirming the deed of commissioner to purchaser.

Action of assumpsit, to November rules, 1866. Judgment by tbe court, at May term, 1870, for the plaintiff; in the circuit court of Cabell county. The defendant moved the court for a new trial, on the -ground that the judgment was contrary to law and evidence.

The proceedings in this case were commenced in the circuit court of Kanawha county in March, 1871. The railroad company, upon petition, procured the appointment of commissioners to report a just compensation to owners through whose lands they proposed to construct their railroad. Five commissioners were selected and appointed according to law, who reported that they had fixed the compensation for the lands claimed by Augustus Pack and James W. Oaks at five hundred dollars.

Bill filed in tlie circuit court of Monroe county, in November, 1869. Dismissed and injunction dissolved at May term, 1870. The points at issue are stated in the opinion of Maxwell, J. ' The bill in this ease presents the following grounds of equity and justice: 1. Jurisdiction to enforce the award; or, if not this, 2. To set aside the award; and 3. Jurisdiction on the ground of fraud, and for’ the settle-meat of the partnership business of the late firm of Parke & Co. First.

<p>S. and others, devisees of S.. deceased, and a creditor of the deceased, bring a bill’ to set aside the sales and conveyances of lands belonging to the estate of the-decedent, by the executor (power for that purpose being invested in him by the will), on the following statement of facts: The decedent died in July, 1863 ; his-will was admitted to probate and the executor qualified, in the county court-of Bedford county, Virginia, in the same month. In the following Soptomber the land, lying in Greenbrier county, was sold to defendants by the executor and paid for in Confederate money and they entered into possession. Therefore the sales should be sot aside, the probate of the will and the qualification of its executor, being in a rebel court, were illegal^ and void, and the payment to the executor being in Confederate treasury notes was also illegal and void.. On demurrer it is held :</p> <p>I. That if the legal title was in the devisees and heirs, as charged in the bill, and the defendants were i a possession without any title, as also charged, the remedy was m a court of law, and the bill should have been dismissed as to the devisees of S., deceased, there being no frauds charged :</p> <p>II. But the creditor of S., deceased, might in the discretion of the court be allowed to proceed with the bill to enforce his debt.</p>

Action of trespass brought to August rules, 1865, in the ' circuit court of Kanawha county, by Joseph Griffie against Thomas McClung and others. Judgment for the defendant on the demurrers of the plaintiff to the pleas, at April term, 1869. The question considered by this court is clearly stated in the opinion of Maxwell, J. The plaintiff appealed.

Bill in equity filed in the circuit court of Wood county, April 11th, 1868. It alleged that the complainants, McFarland and McNeer, bought of defendant Everett, a certain barrel factory in Parkersburg, after some time being spent in negotiations, on the 3d day of September, 1867. That a contract was drawn up and signed on that day between the parties.

The case came from Monroe county. Judge Maxwell’s opinion contains a statement of the question on which the-cause was determined.

Action of debt in the circuit court of Greenbrier county. Declaration filed March rules, 1867, in the name of David' Hedrick for use of Tuckwiller, against Thomas Creigh, Thomas L. Feamster and W. H. Montgomery. The cause came on the docket at April term, 1867, and on motion of the defendants the judgment entered at rules was set aside, whereupon they filed three special pleas, to which the plaintiff, at that time, replied generally.

This was an action of ejectment in the circuit court of Kanawha county, brought to February rules, 1861. Verdict •and judgment for the defendants, Lewis and Dickinson, at November term, 1869.

Action of debt brought in the circuit court of Greenbrier county, to August rules, 1866, by the firm of Ford & Burdett against Samuel McClung,. -Judgment for the defendant, .June term, 1870.

Philip Deem died in January, 1865, in tlie eiglity-first year of bis age, leaving James J. Deem and six other children; also nine grandchildren, the descendants of bis deceased daughters, Elizabeth and Rowena, bis heirs-at-law.

Bill in chancery, filed in the circuit court of Greenbrier county, in July, 1866. Decree, October, 1869. Held: “No ground for defeating the action on the trial.” In the case at bar, the answers were all filed, the case was ready for the hearing; there was no demurrer; case submitted upon the merits, and the judge, “Ex Mero motu,” dismissed the bill. In this the court erred. See, also, Ro. Pr. (New) 3 vol., p. 512.

Action of assumpsit in the circuit court of Kanawha county; declaration filed at May rules, 1869. Judgment for plaintiff at June term, 1870. The only point determined in this court arose on the instructions asked by the defendant, which the court refused to give (except the refusal of the court to grant a new trial because the verdict was contrary to the evidence), and is amply stated in the opinion of Moore, J.

<p>The material facts in this case are stated in the ojiinion of Moore, J.</p>

Suit in equity brought in the circuit court of Greenbrier county, bill filed August rules, 1868. George Piercy, executor of John Piercy, Sr., plaintiff.

<p>Action of ejectment in tbe circuit court of Greenbrier county, brought to January rules, 1870. Judgment for plaintiff, John Echols, April term, 1871.</p> <p>At the trial of the case, the defendants took a bill of exceptions to tbe ruling of the court in refusing a new trial, in which the evidence was set out.</p> <p>It appeared in the proof that the jilaintiff sold to McAvoy, one of the defendants, the land in controversy, lying in Green-brier county, in 1863, and took bonds in payment; that tbe bonds were assigned to one B. F. Steele, who brought suit on them, in chancery, to which McAvoy was a party, and also McClung, wbo bought tbe lands of McAvoy in 1864. This suit was determined in 1870, and the bonds were annulled and rendered void by reason of their having been executed to secure the payment of certain sums of the Confederate treasury notes, an illegal and void currency. No’ other evidence was offered in the case but the record of this chancery suit.</p> <p>The defendants pleaded not guilty to the action of ejectment, and notice, under the statute,.and a contract between the plaintiff and defendant, McAvoy, which was the contract above mentioned as having been annulled.</p> <p>The defendants brought the case to this court.</p> <p>Snyder for the appellants.</p> <p>The points of error here presented, in addition to the matters stated in the assignment of errors, prefixed to the record, are the five following :</p> <p>1st. Want of demand and refusal of possession, before commencement of suit.</p> <p>2d. Admitting plaintiff’s declarations in his own behalf.</p> <p>8d. Refusing to admit the written contract, notice of which was filed with defendants’ plea, as a bar to the plaintiff’s action.</p> <p>4th. Judgment not warranted by the finding.</p> <p>5th. No sufficient proof of defendants’ possession.</p> <p>First. The record of this case shows that it was proven by the plaintiff, in the court below, that the defendant, McAvoy, was let into possession of the premises, which plaintiff now seeks to recover by ejectment, under a contract of purchase from the plaintiff, and that the defendant, McClung, was in under a contract of purchase from the defendant, McAvoy. No notice to quit was given to either of the defendants before suit. The following considerations show that this fact alone is sufficient to dismiss the plaintiff’s action.</p> <p>A person entering under a contract for the purchase of an estate, with the consent of the vendor, must be deemed a tenant at will, and cannot be ousted by ejectment, before his lawful possession is determined by demand of possession, or otherwise. Right vs. Beard, 13 East, 210.</p> <p>The possession of such a tenant must be referred either to 3, legal or adverse title; but, as the entry is with the consent of tbe person entitled to tbe possession, it cannot be considered adverse; and, as tbe agreement confers no legal title, it follows tbat tbe person in possession must, by construction of law, be considered as a tenant at will. Doe vs. Jackson, 1 Barn. & Cress., 448; 8 E. C. L. R., 126.</p> <p>This view of tbe law is fully recognized and affirmed by tbe court of appeals of Virginia, in tbe late case of Williamson, Trustee, vs. Paxton, Trustee, 18 Grat., 505.</p> <p>Tbe suit of Steele vs. McAvoy et ale., tbe record of which is incorporated in tbe record of this case, could not have operated as a demand of possession; on tbe contrary, it conceded and reaffirmed the lawfulness of tbe defendant’s possession ; and, besides, that suit was not by tbe present plaintiff, but by one claiming no title to tbe land.</p> <p>Tbe lawfulness of defendants’ possession was never determined before this action of ejectment was brought, either by notice to quit or otherwise, and tbe case must, consequently, be dismissed at plaintiff’s cost.</p> <p>See Goodtitle d. Herbert vs. Galloway, 4 T. R., 680; Clayton vs. Blahey, 8 T. R., 8; Thunder d. Weaver vs. Belcher, 8 East., 449-451; Doe d, Warner vs. Browne, 8 East., 165; Plegan vs. Johnson, 2 Taunt., 148; cases which decide tbat when a party is admitted into possession under an invalid lease or agreement, &e., the landlord, or vendor, &c., must demand possession, or, in some other manner, determine the will, before he can maintain an ejectment, although be has not acknowledged tbe party as his tenant.</p> <p>Second. It is insisted, in tbe assignment of errors prefixed to tbe record of this case, that the record in the suit of B. F. Steele vs. McAvoy et als., was improperly admitted as evidence. Besides tbe reasons there stated, it should be noticed tbat the answer of John Echols, the present plaintiff, was a part of that record, and hence the plaintiff’s own declarations were admitted in this action to prove the'identity of the land, and that’ he held the legal title thereto. If, indeed, any part of that record could have been admitted as evidence, it must have been upon principles quite obvious to every one. The parties were different from those in the present case — the subject of controversy there had no relation to this — the gist of that suit, and sole subject for decision, being the legality or illegality of consideration of certain bonds, the right of possession to the lands being conceded to the defendants.</p> <p>But, if any part of that record was evidence in this case, it must have been upon the principle that the present defendants had made solemn admissions therein, by which they were bound; and the evidence contained in that record must have then been limited to those admissions. These, if such, must have been contained in their own answers, and if the answers wore evidence, it might have been proper to admit the bill and decree to show that they were made in a suit regularly begun and ended; but this reason cannot apply to the answer of Echols, the present plaintiif, and it was contrary to the rules of evidence to allow it as evidence in his own behalf.</p> <p>In the case of Pleasants vs. Clements, 2 Leigh, 474, the record of a former suit, comprising depositions regularly taken therein, had been offered in evidence, and excluded by the court below, which ruling was sustained in the appellate court, on the ground that the depositions were improper evidence, and that the whole of a record must be rejected when any part is improper, and it is offered as a whole.</p> <p>In the present case the record was offered as a whole, and the answer of Echols being inadmissible, the whole record should have been excluded.</p> <p>Third. The written contract filed with the defendants’ plea was a bar to the plaintiff’s recovery, and the court should have so held. See the notice of this defense at page 19 of the record, and exhibit “X,” at page 15.</p> <p>The plaintiff, to obviate the effect of this defense on the trial below, relied entirely upon his evidence to show that the contract was upon an illegal consideration, and, therefore, void. But this will not do. The Code (p. 520) makes this defense peremptory. It is not' necessary, under our Code, that the vendee be entitled, in equity, to a specific execution of the contract, as is provided by the Virginia Code in relation to this defense; but it was manifestly intended by our Code to give to a defendant in ejectment every advantage under this defense of which he could have availed himself if he had' previous^ acquired the title, and thus driving the plaintiff into exactly the position he would have occupied if he had convejred the land by deed, reserving a vendor’s lien. A comparison of the provisions of our Code with those of the Virginia Code, upon the same subject, confirms this view.</p> <p>If the consideration of the written contract was illegal, the plaintiff, to avail himself of this, must have gone into equitjr for cancellation of the instrument.</p> <p>And if the illegality of consideration could have been made the subject of investigation and decision at law, certainly that investigation was not presented by the pleadings in this case; for if the matter had been a direct subject of controversy 'at law, it must have been by presenting it under a special plea, and could not have been considered under the general issue. The written contract is an instrument under seal, and a specialty cannot be avoided for illegality of consideration at the common law, appearing merely in evidence, but the fact must be specially pleaded. 2 Chit. Rep., 384; 2 Stark., 35, S. C.</p> <p>If the plaintiff objects to this, that the statutory rules of the action of ejectment should be construed as preventing any special pleading by him against this statutory defense, this only shows that he should have sought cancellation in equity before proceeding with his ejectment, and it is not for the plaintiff to use the argument ab inconvenienti against the hardships of a form of legal proceedings, which he has himself deliberately and voluntarily chosen.</p> <p>Fourth. At page 8 of the record, the finding is given upon which the court rendered judgment. The reading of that finding and judgment can leave no possible doubt, in any mind, that the court stated in the finding the whole of the facts upon which the judgment was given. It is, therefore, to be treated precisely as if it had been the verdict of a jury.</p> <p>The finding asserts, in point of fact, what is not claimed by the plaintiff’s declaration, to-wit: title in fee to the land in controversy, and what is not proven by the evidence in the cause unless the answer of the present plaintiff in the prior suit of Steele vs. McAvoy et als., was taken to be proof of the fact; and the judgment affirms, in point of law, that title in fee and right of possession are inseparable concomitants, a contradiction to which is furnished in every tenancy under a landlord. First, then, the finding was not warranted by the declaration, which, was itself radically defective in not stating, as the statute requires, the quantity of interest claimed by the plaintiff in the land, or, if this objection be considered untenable, yet, for reasons above stated, there was no competent evidence to authorize such a finding; and, lastly, admitting the facts stated in the finding to be an unimpeachable verdict, still the legal proposition involved in the judgment, as a consequence thereof, is utterly indefensible.</p> <p>The defect in the declaration and evidence of the plaintiff, the insufficiency of the finding of the court, and the error in its judgment, are well illustrated by showing the verdict required under our statute on ejectment, to entitle the plaintiff to recover: “ that the said Jacob MeAvoy and Madison MeClung are guilty of unlawfully withholding the two tracts of land in the declaration mentioned from the said John Echols; and that the said John Echols is well entitled to hold the same in fee, as the said John Echols has, in his said declaration, complained against them.”</p> <p>Fifth. In the ancient action of ejectment, it was holden necessary to prove the defendant in possession of the premises in dispute; but, by orders of the different courts, the consent rule is now altered in England, so as to include the confession of possession, as well as of lease, entry, and ouster. Adams on Ejectment, Waterman’s Ed. (star paging), 277.</p> <p>The consent rule having been abolished in our practice, the ancient doctrine is, therefore, revived, that a plaintiff in ejectment cannot succeed unless he prove the defendant to be in possession. See Note [1] to the above recited statement from Adams, where the following authorities are quoted: Cooper vs. Smith, 9 Berg. & E. Eep., 26; Pope vs. Pendergrast, 1 Marsh, Eep. (Ky.)j 122; Easiin vs. Rucker, 1 Marsh. Eep. (new series). 236; Cooley vs. Penfield,! Verm. Eep., 244; Stevens vs. Griffith, 8 Verm. Eep., 448.</p> <p>The New York statute upon ejectment is almost literally identical with that of our code, and under the New York statute are the decisions of Jackson, ex dem., Roberts vs. Ives, 9 Cow. Eep. 661 and Van Horne vs. Everson, 13 Barb. 526, in which it is held that the plaintiff in ejectment must, at.the trial, prove the defendant in possession of the premises in question, or he cannot recover.</p> <p>Concede, now, that the evidence of the plaintiff in the present case is proper; and has he proved such possession as the law requires ? The possession must be possession by the defendant, at the time of declaration served. 2 G-reenl. Ey. § 304.</p> <p>In this case the declaration was served January 1st, 1870, or subsequent thereto. See declaration and acceptanc e of service, at pages 7 and 8 of the record.</p> <p>The plaintiff’s evidence may be taken to have proven that the defendant, McAvoy, was in possession of the disputed premises from June 27th, 1863, to February 27th, 1864, and that defendant, McClung, was in possession of said premises on the day last mentioned. This evidence, together with the endorsement of service on the declaration, is all the evidence offered by the plaintiff to prove the possession of the defendants at the time of declaration served.</p> <p>A return of “ served” by the sheriff, on a writ of ejectment, is certainly not conclusive evidence of possession by the defendant, and it cannot be prima, facie evidence under our statute on ejectment, for the reason, among others, that our statute would not allow it to be rebutted if once taken as evidence; and, in showing this to be the proper construction of the statute, we will discuss its bearing upon the remaining branch of the plaintiff’s proof of possession, viz: the proof arising from the presumption that the possession of February 27th, 1864, continued down to January 1st, 1870. Greenleaf mentions, as one illustration of the doctrine of disputable presumptions, that a seizin once proven, is presumed, until the contrary is shown, to be continued. 1 Gr. Ev. § 42. Now if our statute prevents a defendant in ejectment from disputing this presumption, then it has no effect as evidence, and the plaintiff must prove possession by other means ; for, the presumption not being conclusive, if it is not disputable, is no presumption at all.</p> <p>In ejectment, the gist of the action is the right of • possession. Hence the fact of defendants’ possession belongs to the merits of the controversy, and cannot be tried by plea in abatement; and, moreover, our statute on ejectment allows no plea in abatement to an action of ejectment. Under the plea in bar, our statute only allows such matters of defense as would formerly have been a bar to a writ of right, and does not, like the provisions of the Virginia and New York statutes, allow the defenses heretofore admitted in the action of ejectment. A plea of non-tenure to a writ of right, is a plea in abatement, and not in bar. 1 Rob. (old) Prac., 468 and 472> citing Boling vs. Mayor, &c., of Petersburg, 8 Rand., 563.</p> <p>It follows, therefore, that under our statute, possession in 1864 is no proof of possession in 1870, however the law may have previously stood; and that service of the declaration is no proof of the fact.</p> <p>Suppose the defendants had re-delivered possession to the plaintiff on the 28th day of February, 1864, and never after exercised a single act of ownership over the land, (and, for aught that appears in the record, they may have done so,) could plaintiff, on the 1st of January, 1870, vex defendants with a law suit and charge them with its costs, by proving the land in their possession on the 27th day of February, 1864, and then applying a presumption. which they could not have an opportunity to rebut by showing the fact that plaintiff' was, himself, in possession? If the court hold that defendants’ possession is established in the case before it, then, in the case supposed, plaintiff would, under our statute on ejectment, have inevitably recovered.</p> <p>By our present statute on ejectment, when a defendant has plea ded “ not guilty,” he is exactly where the tenant stood after he had joined the mise on a writ of right, without having allowed him the privileges under the writ of right of pleading in abatement, since our statute compels him to plead the general issue, and then cuts him off from his former defenses under the general issue in ejectment; so that a defendant in ejectment, in "West Virginia, so far as proof of his possession, at the date of declaration served, is concerned, is like a criminal on trial, compelled to lie passive under the evidence of the plaintiff, and, therefore, every doubt must be in his favor; and courts should demand indubitable proof of the defendant’s possession, and not be satisfied with a single pre sumption, weak and uncertain in its effect — disputable in its nature and by all the principles of law, and yet placed, by the statute, beyond th e reach of rebuttal.</p> <p>For this reason the court erred in refusing the defendant’s motion to set aside its judgment as being contrary to law and the evidence, no sufficient proof having been adduced of the possession of defendants.</p> <p>This is an action of ejectment brought to recover a tract of 208 acres of land in Greenbrier county. The land was sold by the plaintiff to the defendant, McAvoy, to whom he gave a title bond, and took from him his five several bonds for the purchase money, which he assigned to Benjamin F. Steele, who instituted suit on the bonds, in chancery, to enforce the vendor’s lien upon the land. The defendant, McAvoy, answered, admitting the purchase, but maintaining that payment was to have been made in Confederate money; that he ivas placed into possession of the land and had sold it to the defendant, McClung ; that no deed had been made, &c. He exhibited with his answer the contract with McClung. The defendant, McClung, was made defendant by petition. The decree was that the purchase money was to be discharged in confederate notes, and that the bonds were illegal and void; that they had not been stamped, '&c.; the bill was therefore dismissed.</p> <p>After the bonds and contract were thus held void and the bill dismissed, the plaintiff instituted his action of ejectment against McAvoy and McClung for the land and recovered judgment. From this judgment an appeal has been taken, which is the case now upon hearing.</p> <p>Upon the trial the defendants took one bill of exceptions to the judgment of the court, and that was for “failing to set aside the judgment because it was contrary to the laiv and the evidence.”</p> <p>In this bill of exceptions all the facts were set out, which consist of the bill aforesaid, exhibits, petition, answers, and decree.</p> <p>The defendants object to the judgment, for a multitude of reasons:</p> <p>First., Because of the inadmissibility of the parts of the record aforesaid as evidence; but this objection cannot now be made, as the opinion of the court was not excepted to admitting the evidence. “ It was read under the protest and objection of the defendants, but when the protest and objection were overruled they acquiesced.” White vs. Tonlcey, .9 Leigh, 347, 351-2. But the objection was not valid if it had been well presented upon the record. The contract on pages 15 and 16 of the record were admissible, to show under what title the defendants entered — the one entered as purchaser, the other as sub-purchaser, from the plaintiff, and could not, therefore, question the plaintiff’s title. 2 Tuck. Com. 176. C. JohnR., 34; 1 Rob. Prac. (old), 446. The decree was introduced to show that the sale to McAvoy had been void, and which necessarily terminated the defendant’s right of possession.</p> <p>Second. Was not the plaintiff entitled to the possession? As between him and these vendors, his title could not be questioned; and, having the title to the land, it would draw to it the right of possession. Emerick vs. Tavner, 9 G-rat., 220; 7 John R., 157; 14 East., 488; 1 Rob. Prac., 466.</p> <p>Third. The defendants were not entitled to notice to quit. Tillinghast’s Adams on Equity, 116-7 and authorities referred to. The doctrine is not such as the defendant’s counsel Contends for. It is not the doctrine as between vendor and vendee. 'The vendor has a right at any time to elect to treat his vendee as a dississor, if he will. Adams on Equity, 116, 117; Whiteside vs. Jackson, 1 Wendle, 418; Jackson vs. Miller, 7 Cowan, 747, and other authorities there referred to. In this •case the contract had been declared hull and void, and the tenant thenceforth was necessarily a trespasser.</p> <p>Fourth. The defense accorded to a vendee by the act of as.sembly in favor of vendors (Code, § 20, page 520,) does not .apply to this case. That law is intended to apply to valid contracts. Here the contract is declared null and void. It is, therefore, as though it was not.</p> <p>If this is not a correct view of the law and the defendants .are correct, the anomaly is presented by the law of a vendee holding possession of the land and not only failing to pay for it, but his failure to pay and his right to hold both sanctioned by the courts and the law. The finding of the court cured tbe supposed error in the declaration. Code, § 3, page 637, and § 8, page 626.</p>

<p>' Action of assumpsit in the circuit court of Kanawha county, brought to May rules, 1867. Trial, and judgment for plaintiff at June term, 1869.</p> <p>The facts and evidence in the case appear in Judge Moore’s opinion.</p> <p>It is submitted that the court erred in its judgment upon the facts of. the case, and that the same should have been for the defendant, Tompkins, and the following points are relied on:</p> <p>1. Maden’s assignment of the note of Creigb, in the name of Tompkins & Maden, under the circumstances attending it, was clearly insufficient to bind the firm, and no recovery could be had against Tompkins upon it. It was plainly in violation of Maden’s duty as a partner, and a fraud upon the rights of the firm. That it was his individual transaction, and for his individual purposes, distinctly appears. It was the case so frequently occurring of the use by a partner of the name and credit of the firm, without authority, for his per--sonal advantage; and where this is known to the party dealing with him, the law is perfectly well settled that the firm will not be bound. Difficulty may arise as to the proof of such knowledge on the part of the creditor, but where such knowledge is established by the proofs, or is fairly to be inferred from the circumstances of the transaction, the rule is inexorable and its application infallible. Connected with this rule is another abundantly supported by authority, and in itself reasonable, just and convenient, which will settle most of the cases, and is, we submit, decisive of this. It is that whenever a party receives from any partner in payment of a debt due from that partner only, whether the debt be created at the time or executed before, the indebtedness or obligation of the firm in any form, the presumption of the law is that the partner gives this and the creditor receives it in fraud of the partnership, and consequently can maintain no demand against the firm upon it. Parsons on Partnership, p. 116 (111). It is true that in certain cases in England it has been intimated that if the name of the firm be used by a partner for his private debt, the partners will be held unless they shew covin or fraud on the part of the holder; and the mere fact that it was the private debt of one partner will not amount to prima facie proof of this. Ridley vs. Taylor, IB East., 175; Ex-parte Agace, 2 Cox, 812; Ex-parte Bonbonus, 8 Yes., 540. But this is not the doctrine of the American courts. In them, the presumption is held much more strongly, and the fact that the debt grew out of the individual transaction of the partner will be deemed sufficient prima facie to put the creditor to proof of actual authority of the partner or the assent of the firm to be bound. Rogers vs. Batchelor, 12 Peters, 221; Ohazournes vs. Edwards, 3 Pick., 5; Gansevoort vs. Williams, 14 Wend., 133; Lansing vs. Gaine, 2 John., 306; Davenport vs. Runlett, 3 New Plamp., 386; Laverty vs. Burr, 1 Wend., 529; Dob vs. Halsey, 16 John., 34.</p> <p>In Dob vs. Halsey, Spencer, J., speaking of the difference between the courts of England and this country, on this point, says: “We require the separate creditor who has obtained the partnership paper for the private debt of one of ■the partners, to show the assent of the whole firm to be bound.” And in Rogers vs. Batchelor, Story, J., said: “ The true princijile to be extracted from tbe authorities is, that one partner cannot apply the partnership funds or securities to his own private debt without the consent of the other partners. * * * * That the right (of the separate creditor) depends on the fact whether the other partners had assented to such disposition or not.” Parsons on Part., 117 (112), n. u.</p> <p>This doctrine of the American courts, that a third party taking from a partner the signature of his firm upon his own private, individual transaction, cannot hold the firm without proof of authority, adoption or ratification, is recognized as the settled law of the subject by Professor Parsons in his excellent work on partnership, and the numerous authorities for it collected and collated. See Parsons on Part., 212 (202), and n. (d.) And he adds: “We should say that the weight of authority in the English courts is in favor of rules substantially similar. That is, they also hold that if a creditor of one partner take partnership paper in payment of his debt from that partner, and there are no other facts in the case, the partnership would not be held, and the act of the holder of that paper would be deemed fraudulent in law.” Parsons, 213 (204), nn. (e.) (f.) And Nelson, J., in Gansevoort vs. Williams, 13 Wend,, 133, comes to the conclusion that the practical operation and effect of the rule of the English courts, and that of the rule of the courts of this country, are the same.</p> <p>It may therefore be considered as the settled rule of the courts, both in England and this country, that if the third party deal with the partner with knowledge that it is his private and individual transaction, he knows enough to put him on his guard, and that he is now bound to inquire whether the firm authorized the particular use of their name, and he can only hold them on the ground that they did so authorize it in fact; and he must shew this as the foundation of his claim. Parsons, 212 (202), and cases cited in n. (d.) So mere ignorance on the part of such third party of the breach of trust of the fraudulent partner will not enable him to hold the firm if such ignorance imply gross negligence on his part. Warren vs. French, 6 Allen, 317; Lloyd vs. Freshfield, 2 Carr. & P., 325; 12 Eng. C. L. Rep., 154;, New York Fire Insurance Company vs. Bennett, 5 Conn., 574. If the creditor be guilty of gross negligence, or if the nature of the transaction be such as to carry evidence with it of the misapplication of the name of the firm, or be otherwise such as should have put the creditor upon further inquiry, he cannot hold the firm. Story on Partn., §§ .129, 130, 133. Parsons on Part., pp. 107 (103), 218 (209), 222'(212), and n. (1), 225 (215).</p> <p>In Lloyd vs. Freshfield (above cited), Bailey, J., says : “ If a man lend money where no prudent man ought, he himself is answerable if there be anything wrong. This was a negligent act at least in the plaintiff to lend the money, and therefore he cannot call on an innocent man to pay it.” And in New York Fire Insurance Qo. vs. Bennett, Hosmer, C. J., speaking of the position taken that the payee in that case who dealt with the partner, not having knowledge that special authority had not been given him, and the argument urged, which was in effect that he might fold his arms and reap a benefit from his supineness, says, that “ common sense and common integrity require that he should make inquiry in such cases, and actually know that authority was given. He is bound, on legal and fair principles, to sustain the affirmative. He knows that the partnership is for mercantile operations. He knows that the partner signing or endorsing a note in the name of the firm, from the partnership contract, had no authority. He knows that the act can alone be authorized by the delegation of express authority. And he knows that on the most common and best established principles in promotion of justice and prevention of fraud, the person claiming the obligation of contract against a partnership is bound to prove it.”</p> <p>Again, it is well settled that the endorsement by a partner in the name of a firm, of paper not belonging to a firm, which is in effect lending or giving the credit of the firm, carries with it the presumption that the partner making it was not authorized. The business of a mercantile firm is usually buying and selling, and to lend the credit of the firm by endorsing paper not belonging to it is no part of the general and regular business. The presumption of the law, therefore, is against the authority of the partner who signs the firm name for such purpose. New York F. Ins. Qo. vs. Bennett, 5 Conn., 574; Stall vs. Qatskill Bank, 18 Wend., 466, 477; Bank of Tenn. vs. Saffarans, 3 Humph., 597; Gansevoort vs. Williams, 14 Wend., 138; Bank of Vergennes vs. Cameron, 7 Barb., 143, 150. See Parsons on Partn., p. 225, (215).</p> <p>Such is the general doctrine on this subject. It is founded in the principles of reason and justice, and is well supported by authority. It would be strange if it were different, for the inevitable result would be to place honesty at the mercy of knavery; to destroy all just confidence between man and man, and to enable a dishonest and fraudulent partner, if so minded, to utterly ruin his confiding associates without possibility of remedy or escape.</p> <p>In this case Claypool, the cashier, was in a legal sense particeps in the fraud practised by Maden on the firm of Tompkins & Maden. The note of Creigh was payable to Maden individually; was his individual property, and not that of the firm. Tompkins knew nothing of the making or endorsement of the note. It arose from no matter pertaining to the firm, or in which the firm was in any way concerned. The negotiation was a private transaction of Maden, in which Tompkins had no interest, and from which he derived no benefit; no part of the proceeds went to his use or that of the firm, but the same was appropriated by Maden to his private purposes. All this was known to Claypool, and when Tompkins first heard of the transaction he gave notice to the bank that he would not be bound by it.'</p> <p>It was, at least, gross negligence on the part of Claypool, the cashier acting for the bank, in discounting the note, not to inquire if Maden was authorized to endorse it with the name of the firm. Had he done so, he would have learned that he was not. He saw that the note was payable to Maden individually, and that Maden was seeking to have it discounted on his individual endorsement. He was thus fully placed on his guard and warned that the negotiation of the note by Maden was not a partnership transaction. He was not at liberty to shut his eyes and disregard the warning afforded by the character of the transaction. He declines to discount the note on Maden’s individual endorsement, and Maden then endorses it with the name of the firm, and Clay-pool then discounts it, and the proceeds are paid over to Maden. Surely it would be grossly unjust to hold Tompkins liable on this endorsement, and we challenge the production •of any authority upon which he can be so held without proof ■of previous authority to Maden to make the assignment in ithe partnership name or subsequent ratification by Tompkins. None such is offered or pretended, but that neither ■existed is plainly inferrible from the evidence.</p> <p>2. The plaintiff failed to use that due diligence to recover the amount of the note from Creigh, the maker, that was required to entitle him to maintain a suit against the assignor.</p> <p>The bank at which the note was made payable, not being :an incorporated institution under the laws of this State, the note was a common law instrument only, and not negotiable. The plaintiff, therefore, could not maintain an action against the endorsers without shewing that he had used what is known in the law as due diligence to recover the amount of the note from the maker. Now “due diligence” always involves the idea that the assignee has adopted a judicious course of proceeding; and in general, it is the duty of the .assignee to prosecute suit as promptly as may be against the maker, obtain judgment and sue out a fieri /acias against his property without delay. And where such suit is immediately commenced on the maturity of the note and vigorously prosecuted, judgment obtained and execution sued out and returned “nulla bona,” without any delay attributable to the plaintiff, he may well maintain his action against his assignor, not upon any technical legal effect of the assignment, but upon the principle of natural justice and of the action of money had and received, the soul of which is that the defendant has received money to which ex aequo et bono the plaintiff is entitled and has not forfeited his right to demand the same of the defendant by any negligence or default on his part, to recover the amount of the party whose proper debt it was, and who ought to have borne the burden to the relief of all the others. Machie’s Ex’rs vs. Davis, 2 Wash., 219; Norton vs. Rose, 2 Wash., 233; Minnis vs. Pollard, 1 Call., 226; Goodall vs. Stewart, 2 Hen. & Murf., 113, and note; Lee vs. Love & Co., 1 ■Call., 497; Saunders vs. Marshall, 4 Hen. & Murf., 455; Brown vs. Ross, 6 Murf., 391; Whitworth vs. Adams, 5 Rand., 377; Drane vs. Scholfield, 6 Leigh., 386; Thompson vs. Govan, 9 Gratt., 695; 2 Tuck. Comm., 339, 340, 341.</p> <p>The note in this case fell due on the 7th of February, 1866. The suit against the maker was brought on the 5 th of July, 1866, only two days less than five months after the maturity of the note. Judgment was not recovered until the October term, 1866, and on the 9th of October, 1866, an execution was issued, which went into the hands of the sheriff of Kanawha county, and was by him returned “No property;” and in February, 1867, another execution issued, which was directed to the sheriff of Greenbrier county, where it was proved Creigh resided, and was returned “No property.” At the time the note fell due, four terms of the circuit court were held in each county during the year. Two of these terms for the county of Kanawha, to-wit, that commencing on the 2d of April and that on the 2d of June, 1866 — were suffered to pass without a suit having been brought. If the plaintiff' had sued promptly on the note after it became due, he might have recovered a judgment at the April term, 1866. But he suffers this term and the next both to pass by without taking any step, and only brings his suit in time to get a judgment at the third term after the note became due. It is clear, therefore, that, after this delay, it was his duty to exculpate himself by showing that due diligence would not have altered the case. Qoodall vs. Stewart, 2 Hen. & Murf., 105, 114; 2 Tuck. Comm., 342. The onus prdbandi was on the plaintiff, but he offered no proof whatever to show that an earlier judgment would not have availed, or that by reason of the insolvency of Creigh, or for any other cause it was unnecessary to sue. In fact it may be deduced from the evidence that Creigh was not insolvent, because it seems that he actually paid the amount of the note to Maden. And after the plaintiff obtained his judgment at the third term, in October, 1866, he delayed sending an execution to the county in which Creigh lived till February, 1867. Surely after such delays wholly attributable to the plaintiff, unaccounted for and unexplained, and without any proof to show that due diligence was unnecessary, or would have been unavailing, it would be against the current of all the authorities to hold the assignors responsible.</p> <p>3. After Tompkins had given notice to the bank that Maden’s use of the firm name on assigning the note was unauthorized, and that he would not be held bound by it, the bank was guilty of such gross laches, amounting to fraud upon the rights of Tompkins, as will deprive it of all remedy ■against him. The bank was indebted to Maden in a large amount, and had the means of indemnifying itself against loss from the negotiation of this note in its own hands. It had the right to set off its claim against Maden on his individual assignment against so much of its indebtedness to him. It had full notice that Tompkins controverted its claim against him on the assignment in the name of Tompkins & Maden, and yet with this right and this knowledge, the bank paid Maden some fifteen hundred dollars in cash, and also discounted Mrs. Caldwell’s note for him, and paid him the nett proceeds, amounting to about one thousand dollars more. Now it was the plain duty of the bank to have provided for the'Creigh note in these transactions. It had the right to insist that it should be permitted to retain a sufficient amount in its hands to meet the Creigh note in case the effort to recover it from Creigh should prove ineffectual. It is in vain to say that those moneys were paid, and the note of Mrs. Caldwell discounted on a compromise between the bank and Maden, to secure which the bank was coerced to pay the money and discount the note. The bank owed Maden, and could claim to set off its indebtedness against Maden’s demand. Tompkins was an innocent party who had received no benefit from the assignment of the note made in the name of the firm by Maden, and this the bank well knew. It was clearly, therefore, its duty to protect itself and him by withholding an amount of its indebtedness to Maden equal to the amount of the Creigh note. If it chose voluntarily and with its eyes open, for reasons looking to its own advantage, to compromise the matter with Maden and pay over to him the funds in its hands, it did so at its peril, and cannot be permitted to turn around and hold an innocent party responsible for this claim, which it had perfectly in its power to secure out of funds in its hands, but which it chose to surrender without doing so, and that without the knowledge or consent of that party. Its claim against Tompkins is upon the equitable action of assumpsit for “money had and received,” the principle of which is that the defendant has received money which ex aequo et bono, he ought to pay over to the plaintiff. Certainly there can be no equity in the claim) ofi the bank against Tompkins under the facts of the case. The; course pursued by it plainly operated as a fraud upon the; rights of Tompkins and a forfeiture of its claim, if any it. had, to charge him upon the assignment made by Maden in» the name of the firm.</p> <p>First. The plaintiff did use due diligence in the prosecution of the claim against the debtor. The question of diligence depends upon the circumstances of each case, and the-courts have never attempted to settle, arbitrarily, a fixed time1 within which suit must be brought. It is not claimed by the defendants that the debtor was in any more solvent condition when the paper matured than he was when suit was brought, or at any time subsequent thereto. In this case suit was brought within five months after maturing of the note, the debtor living in a distant county. In the case of Barksdale vs. Fenwick, 4 Call., p. 492, the assignment was made and the right of action accrued to the assignee on the 13th of March, 1794. Suit was brought the 23d of December, 1794, and dismissed, by order of the assignee, at rules. ’ Another suit was brought in February, 1795, and judgment in April, 1798, and a return of nulla bona, all the parties living in the same city. In a subsequent action by the assignee against the assignor,, he recovered judgment, which was affirmed on appeal. The-court in this case was divided, but it will be noticed that there was proof in the case that the debtor was doing business and paid large debts several months after the right of action accrued to the assignee; and the dissenting judges base their opinion as to the question of diligence upon this proof. Note also, in the opinion of Judge Lyons, the difference between the principles applicable to common law paper and commercial paper and upon the burden of proof. See, also, Minnis- and Pollard, 1 Call, p. 226, whose right of action accrued to the assignee against the debtor, June 20th, 1791, and suit was not brought till April, 1792. It is submitted by the plaintiff that no decision can be found affirming that prosecution of the suit within five months after the maturity of the paper assigned, is not due diligence.</p> <p>Second. The question of diligence has no application to this case. The proof is, that the debtor paid the debt to the assignors. It makes no difference, so far as the assignors are concerned, whether paid before or after assignment, or before or after suit and judgment on the note against the maker, they are estopped by the collection of the note from raising the question of diligence.</p> <p>Third. The debtor lived in Greenbrier county (see page 13 of the record). The court will take judicial cognizance of the fact that, at the time of the maturity of the note, and for some months thereafter, there were no courts in Greenbrier county which could have entertained jurisdiction of a suit, or whose judgment would have been valid, and there were no officers to execute process. It is also a fact of historical notoriety, of which the court will take notice, that up to the close of the rebellion, which occurred long after the maturity of the note, Greenbrier county ivas within the Confederate lines, and no process could have been sent from the county of Kanawha; or, if sent, could not have been served in Green-brier county until the close of the rebellion. 42> Hagans, Mann vs. Lewis, 223.</p> <p>Fourth. The firm of Tompkins & Maden were bound by the assignment of the note. They were a commercial partnership, and it was perfectly in the scope of their partnership business to make and endorse bills, notes and drafts, &c. See Story on Partnership, §§ 102, 102a, 103, 104, 105, and particularly 108. As is shown by the authorities above cited, partners engaged in trade and commerce are held to a strict liability upon the contracts made by each member of the firm in the partnership name. There would be no safety in dealing with such a partnership if every partner had to be consulted before a transaction could be concluded binding uj)on the firm, and such a limitation upon the obligations of partners would almost put a stop to commerce and trade. There was nothing in the transaction in this case unusual, nor any evidence of negligence on the part of the plaintiff. Maden, one of the firm, presented a note made payable to himself, for discount. The bank declined to discount it without further security. He then endorsed it in the firm name, which he had the right and power to do; and for all the plaintiff knew, it was to raise means for the use of the firm. Tompkins and Maden, by forming and continuing their partnership, proclaimed each other to the business world as persons worthy of trust and credit, and as authorized to act for each other, and it would not only have been impertinent for the plaintiff to have gone to Tompkins and enquired whether he sanctioned the transaction, but it would have been an unpardonable 'reflection upon the honesty of his partner, whom he had advertised as honest and trustworthy, by the connection he had formed and maintained with him.</p> <p>Fifth. After being notified by Tompkins that the firm never received the proceeds of the note in suit, the bank never had the means or opportunity to recover of Maden. It is argued by counsel for appellants that because the bank paid Maden a considerable sum in compromise of a suit, that they must have been liable to, or indebted to Maden. This does not necessarily follow. It might have been, as it was in fact in this case, that it was a compromise of another large claim which the bank held against Maden and others, and which Maden was defending while the other- parties were making no defense thereto. The record conclusively shows that no funds of Maden passed through the hands of the officers of the bank over which they had any control, or out of which they could have satisfied the note. And even if they had possessed funds belonging to Maden individually, they could not have used them without Maden’s consent, in payment of a firm liability, upon the mere assertion of Tompkins that the assignment was made without his knowledge or consent.</p> <p>Finally, they could not use either the partnership or the individual funds of the assignor in payment of the note, until they prosecuted the maker to insolvency.</p>

These causes were submitted together by tlie appellant, Andrew H. Beach. The oldest suit was Woodyard against the appellant, and it was instituted in March, 1868. The causes arose in Kanawha county. The opinion of Moore, J., contains an ample statement of the facts concerning the only points involved.

The following bill of injunction was obtained on the 11th of October, 1870: ‘‘ To the Honorable Judge of the Circuit Court of Fayette County : “ Showeth unto your Honor your orator, Robert Patton- “ That he is the owner and is possessed in fee of a tract of land in the county of Fayette, State of West Virginia, lying on the Kanawha river, containing forty and one-half acres of land, adjoining the lands of Oliver A. Patton, trustee for his wife, and others, and purchased by…

Action of debt in circuit court of Greenbrier county; declaration filed May rules, 1867. Judgment for defendant, December term, 1869. The case is stated in the opinion of Moore, J.

Shortly after the formation of the county of Jefferson, from the territory of Berkeley, on the 31st of August, 1801, Samuel Washington made a conveyance to John Kearsley and sixteen. others, a part of which is as follows: “That for and in consideration of the sum of one dollar current money of Virginia to the said Samuel Washington, in hand paid by the said John Kearsley, &c., &c., before the sealing and delivery of these presents, the receipt whereof he doth hereby…

Action of debt in Greenbrier county circuit court; declaration filed, July rules, 1869. Trial and judgment for plaintiff, January term, 1870. The following is the note sued on: Lewisbukg, Va., August 8, 1861. IS500.J One hundred and sixteen days after date, for value received, I promise to pay to the order of Moses McClintie, five hundred dollars, negotiable and payable, without offset, at the Farmers’ Bank of Virginia, at Lewisburg. , W. I-I. Snmsi.DS. Credit tiie maker.

Action of debt on a forthcoming bond in the circuit court of Kanawha county; declaration filed at January rules, 1869. Summary judgment on a motion to quash the execution and bond, July 7th, 1870. The plaintiff appealed to this court.

Action of debt in the circuit court of Greenbrier county; summons issued May 5th, 1869; judgment for plaintiff, January term, 1870. Held: in Caperton vs. Martin, 4 W. Va., pp. 148-149, that talcing judicial cognizance, as it is bound to do, of the proclamation of President Lincoln, which declared Greenbrier county to be in insurrection, dated July 1st, 1862, (not the proclamation of 1861, with which it has sometimes been confounded,) it must also take cognizance of the…

Bill in chancery filed in the circuit court of Greenbrier county, at rules held in January, 1870.

This was a bill in equity filed in the circuit court of Green-brier county at February rules, 1869, by Wallace Robinson, sheriff of that county, to whom was committed the estate of William Perkins, deceased, against John A. Hunter and Samuel C. Ludington.

<p>The opinion of Moore, J., contains a full statement of this case.</p>

Action of assumpsit in the circuit court of Kanawha county; declaration filed August rules, 1868. James T. Clarke and others were plaintiffs, and the .executors of John J. Dickinson defendants. The declaration alleged the sale by the plaintiffs, and purchase by the defendant’s testator and four others, of the steamboat “Mollie Norton,” on the 27th of October, 1867, for the price of twenty-one thousand dollars.

Bill of injunction bled in the circuit court of Greenbrier county, October, 1870; dismissed on demurrer at April term, 1870.

Action of trespass on the case in the circuit court of Wood county; declaration filed March rules, 1868. Verdict for plaintiff, subject to the opinion of court on a demurrer to evidence filed by the defendant, and judgment on the verdict May term, 1870. There were some questions made in this court, upon the pleadings and a demurrer to the declaration, which will be found sufficiently stated in the opinion of judge Moore.

<p>Tlie following article of agreement or contract, on tire 12th of March, 1856, is entered into:</p> <p>“ We hereby agree to sell and convey to Milton Parker our interest in a tract of land patented to John Steele, of 27,000 acres, and a tract of land lying on the waters JPocotalico, and running into Elk river, for seventy-live cents per acre one-third of the purchase money to be paid in good acceptances not to run more than three months, and residue of said purchase money to be paid in’ equal installments of one, two, and three years, with interest from date of deed, but it is understood and agreed that the said Parker is to have till the first day of July, 1856, to elect whether he will take either or both tracts of said land upon the terms and conditions aforesaid, and it is understood and agreed that the said Parker may elect either of said tracts of land, but is not compelled to take both, but should he elect to take neither, then this contract is null and void; but should said Parker elect to take said tract or either of them, he binds himself to pay for said laud at the rate of seventy-five cents per acre for land so elected to be taken by him in the manner aforesaid.</p> <p>“ Witness our hands and seals, day and date as above.</p> <p>“M. Paekeb, (Seal.)</p> <p>“ Wm. Dontítai/ly. (Seal.)</p> <p>“ A. F. DornsrAi.LY. (Seal.)”</p> <p>It is acknowledged and entered of record in the proper office on the 17th of the same month. P. gave notice of his election to take the Steele tract before the expiration of the time allowed for the purpose, and notified the D.’s.of that fact. Herd :</p> <p>I. It was an executory contract which became completed between the parties on the notice of P., and might have been specifically executed in a (jourt of equity.</p> <p>II'.When P. made his election under the contract, and gave notice thereof, his equitable interest in the Steele tract related back to the date of the contract.</p> <p>III. The provision in the contract giving to P. the right of election, was sufficient to put the creditors of the D.’s on inquiry (the contract being recorded), and they were bound to inquire whether such election was made or not.</p>

Action of trespass on the case in the circuit court of Wood county. Declaration filed June rules, 1865, alleging the loss of a trunk of plaintiff’s wife, who was a passenger on defendant’s railroad, of the value of four hundred and sixty-five dollars. Trial and verdict for defendant at December term, 1867- Verdict set aside and new trial granted. Subsequently an amended declaration was filed, and at February rules, 1868, writ of enquiry to next term.

<p>The points at issue in this case appear in the opinion of Berkshire, P.</p> <p>The cause was brought to February rules, 1868, in the circuit court of Greenbrier county. Decree dismissing bill January term, 1869.</p> <p>The complainant appealed to this court.</p>

Bill brought December, 1869, in the circuit court of Brooke county. Decree dismissing bill December term, 1870. The opinion of Judge Moore contains an ample statement of the merits of the controversy. The plaintiff below, James W. Cox, appealed to this court.

The bill in this cause was filed at February rules, 1868, in the circuit court of Greenbrier county. The decree complained of was rendered December 31, 1869. The defendants, Williams, brought the cause here for review. See opinion of the court for statement of facts.

The amended declaration in this case was filed in the circuit court of Ohio county, on the 7th of January, 1867.

<p>1. "When' an action is brought by the husband and wife for a wrong to the wife, there can be no recovery for what is special damages to the husband.</p> <p>2. The wife may join with the husband where she is the meritorious cause of action, and where the right of action would survive to her if the husband died before the amount of damage was received. Otherwise, where the husband alone is entitled to damages, and in case of his death they would go to his personal representative.</p> <p>8. In this case one count alleged special damages to the husband; another count alleged a case in which the wife was the meritorious cause of action. A demurrer should have been sustained, because the different causes of action were united, and the damages could not be severed.</p> <p>4. The wife could not be a witness for the husband as to the special damages hut was properly a witness as to the general damages; she being the meritorious cause of action, and in the event of the husband’s death the right of action surviving to her.</p>

'Bill filed in the circuit court of Ohio county, at February rules, 1870. Held: that “ E” took an absolute title to the slaves, and that the limitation deed was void for remoteness. Here, it will be observed, there was a trustee, but this made no difference. A gift of income to be applied to keeping the tombs of the testator and his family in order, is void as creating a perpetuity. 2. Redfield on wills, p. 851.

Bill of injunction in the circuit court of Hardy county, filed in May, 1860. The object of the bill was to enjoin the collection of a judgment obtained in 1859, by William Seymour and others against Robert J. Tilden, sheriff of that county, and his sureties.

This was a trial of the right of property, under a suspending bond, between Ebenezer Kitzmiller and William C. Van-meter, in the circuit court of Mineral county, in 1870. A verdict was found on behalf of Kitzmiller, and a motion was made for a new trial by Vanmeter. It appears that the jury disagreed among themselves as to a statement made by a witness, ten of them insisting on a certain statement and the other two on a different one.

This was a notice of a motion, filed and docketed in the circuit court of Wood county, on the 15th of December, 1868.

Bill filed at May rules, 186S, in the circuit court of Mineral county, by Joseph Workman against John W. C. Miers and Jobn Michael. Bill alleged that the defendants were partners, merchandizing near New Creek, in August, 1863, and borrowed of plaintiff two hundred and seventy-five dollars, for which a note was executed by Miers, signed “ J. W. C. Miers & Michael.” That the money was borrowed for the use and benefit of the partnership.

This was an action debt on an indemnifying bond, brought in the circuit court of Ohio county by tbe relation and for tbe use of George F. Sawtell, trustee, &c., against Henry Hartman, surety in bond. Amended declaration filed December rules, 1868. Verdict and judgment for tbe plaintiff, June term, 1870.

<p>Suit in chancery by Thomas Robinson, ancestor of appel-lees, against Caleb Boggess, ancestor of appellants, commenced on the 8th day of April, 1851, in the circuit court of Harrison county.</p> <p>At May rules, 1851, plaintiff filed his bill against defendant.</p> <p>The bill alleged that about the year 1837, plaintiff was the owner of certain interests in the estate of one Benjamin Robinson, deceased, and the defendant was the owner of certain other interests in the same ; that defendant and wife brought a suit and obtained a decree for the sale of the lands of said deceased; that pending this suit arrañgement had been made between plaintiff and defendant, by which they agreed to become equal and joint owners of interests of the heirs of said ■decedent, and that they did accordingly become such equal and joint owners of six of the heirs’ shares of said estate; that they afterwards agreed that the defendant, Boggess, should, at the sale of the land, purchase for their joint benefit a certain tract, known as the “ sixty-six acre tract,” adjoining lands owned by both parties, to be divided betwen them by a certain line to be drawn from a known white oak, corner of defendant, to the nearest point on the outline of the sixty-six acre tract; that Boggess did accordingly purchase said tract at the sale, and that he and plaintiff afterwards procured one Denham, a surveyor, to lay off the line according to the agreement, and to make a plat of the same and ascertain the true quantity thereof; that the surveyor ascertained that the tract contained seventy-two acres instead of sixty-six ; that the portion allotted to the said Boggess, being the northern portion, contained nineteen acres, and that allotted to the plaintiff, being the southern portion, contained fifty-three acres; that the parties afterward agreed that the plaintiff should take the fifty-three acres for his interest in the estate of the said Benjamin Robinson, and the said Boggess agreed to convey the same to him by deed; that the plaintiff accordingly assumed possession of the fifty-three acres, cleared a portion thereof, cut and sold timber off the same, and with the fall knowledge and consent of Boggess, had been in quiet and peaceable possession of the same from the year 1838 to the present time, and still is in possession thereof; that during said period the said Boggess had repeatedly acknowledged his right to the land, and that he was to, and would at any time, make a deed for the same to him, or to any person he might direct, but that from some cause unknown to the plaintiff the said Boggess had refused to make the deed, alleging that the contract was merely verbal, and was therefore not binding upon him. The bill then alleged that there had-been such a part performance of said contract as would take the case out of the operation of the statute of frauds, and accordingly prayed that Boggess might answer the bill and the various allegations thereof; that specific execution of the said contract might be enforced and Boggess decreed tb convey the fifty-three acres to the plaintiff, and for general relief.</p> <p>At June rules, 1851, the bill was taken for confessed.</p> <p>On the 1st of July, 1851, in term, on his motion leave was given the defendant to file his answer within thirty days.</p> <p>Of this leave the defendant does not appear to have availed himself, for he never answered the bill, and the cause stood upon the bill taken for confessed until the 24th of June, 1853, when the defendant having died, the cause was revived against his widow and heirs at law, whose names are specified in the order.</p> <p>On the 21st of April, 1854, by consent, the cause was also revived against the administrators of said Caleb Boggess by name.</p> <p>The cause thus stood till the 21st of April, 1862, when the plaintiff having died, the same was revived in the names of his heirs at law, given in the order.</p> <p>On the 26th of March, 1864, the defendant, JohnR. Boggess, one of the heirs of Caleb Boggess, filed his answer to the bill. He denies the allegations on which the equity of the bill was rested in general and in detail. He denies that there was any agreement between his intestate and the intestate of defendants for the purchase of shares in the estate of Benjamin Robinson on joint account, or any agreement for the purchase of his intestate of the sixty-six acre tract on joint account of himself and the intestate of defendants, so that it was intended that the land should be divided in the manner alleged in the bill. He denies that any such interests in the estate were purchased on such joint account as alleged, or that said parties wore entitled to equal interest in the same. He alleges that his intestate was tenant hy the courtesy of one share of said estate, and was the owner by purchase of most of the other shares. He denies that the plaintiff Robinson had any interest in the estate except as tenant of the courtesy of one-twentieth part, his wife and her brother being the heirs of one of the daughters of the said Benjamin Robinson. He denies that the surveyor Denham was employed by the said Caleb and Thomas, the original parties, to lay off said lands, but states that he was employed by said Caleb Boggess to lay off, plat and calculate the same, (for what purpose he does not state,) but that he made no allotment of the same as alleged' in the bill; and he denies that it was agreed that the said Thomas Robinson was to take the fifty-three acres, or that the said Caleb Boggess was to convey the same to him by deed. He denies that Thomas Robinson took possession of the said land under such agreement, or took timber from the same or that he had been in quiet posession of the same since 1838, though he admits that he was in possession at the time of the sale of a portion of the same, part of which was called the “ tobacco field,” and that he continued in possession thereof; but he says this was claimed as part of a tract of land descended to Robinson’s wife and her brother, Samuel Boggess, from their father, John Boggess, who had resided upon and improved and cultivated the same in his lifetime. He denies that Caleb Boggess ever had acknowledged that Thomas Robinson had paid the purchase money for the fifty-three acres, or that he was the true owner of the land. He says that Caleb Boggess did believe that a portion of the sixty-six acres would be more valuable as an addition to the land on which Thomas resided than to his own place, and that he was willing to have conveyed the same to him if he paid him therefor, but that there was no agreement beyond the expression of such willingness, and that Thomas Robinson never did pay for the same. He admits that Thomas did take timber from the said land, and coal from other lands of the said Caleb Boggess, with his knowledge and consent, but that this was permitted by the latter because of the indigent circumstances of the said Thomas, and because his wife was a niece of the said Caleb and raised in his family. He denies that there had been any such part performance of such an agreement, as alleged, to take the case out of the statute. He says that he knows nothing of the receipt by the said Caleb Bog-gess of the proceeds of the said lands further than the amount of his own interest, and those of other heirs that he had purchased. He says that he gave his bonds for the purchase money of the land he bought at the sale by the commissioner of the court, and that he, as administrator, found these bonds among his papers after his death and supposed they had been paid by him. He says that he does not know that, the said Caleb Boggess ever acknowledged Thomas Robinson to be the true owner of the fifty-three acres, nor does he believe that he ever promised to make a deed for the same to him or any person be might direct, nnléss accompanied by the qualification that Robinson was to pay for the same and what he owed him beside, or give a lien to secure the payment thereof. He says that Caleb Boggess always told him that no money had been paid him by the said Thomas Robinson for the said land, and that the latter had been always largely in his debt.</p> <p>On the 7th of December, 1864, the defendants, B. R, Bog-gess M. C. Boggess and M. R. Boggess, filed their anwwer to the bill. This answer is to the same purport and effect as the answer of John R. Boggess, and is quite as broad as the former answer.</p> <p>Numerous depositions were taken by both parties and filed in the cause. Ezekiel Gray proves that he knew the land in controversy; that Boggess told him that he and Thomas Robinson had bought the land in partnership, that Robinson had paid him for his part, and if he would pay him what he owed on other accounts, he would make him a deed for the the land; that he spoke of Robinson having borrowed ten bushels of wheat of him, and of his having gone Robinson’s securityfor a small debt, which he had had to pay; that he (witness) was at work for Boggess, and proposed to make some rails on this land, but that Boggess said the land belonged to Robinson. This conversation occurred in 1849 or 1852.</p> <p>James Denham, a surveyor, states that he was called on by Boggess or Robinson, or both, to make a plat and division of the land, laying down the dividing line from the white oak corner to the nearest point on the outline of the tract. He makes the original plat a part of his deposition, and thinks he gave one of the parties, (perhaps Boggess,) a copy of it. He thinks the quantity allotted to Boggess was about twenty acres, and that to Robinson about fifty-two acres.</p> <p>John Furner states that about eleven years previously he was on the hunt of a piece of land to make purchase, and met Caleb Boggess, of whom he inquired if Robinson had not a piece of land to sell; that Boggess said that he had; that he then asked him if Robinson could make a good title; that Boggess replied that the right would have to come through him (Boggess), and that he would make a good title to any one who should buy of Robinson. He understood from what Boggess said that tbe land belonged to Robinson, and be would have made the purchase if they could have agreed on the price.</p> <p>William M. Robinson understood from Esquire Boggess on the day of the sale that if he (Boggess) purchased the land, Robinson was to have the portion of it now claimed by paying him (Boggess) for the same in proportion to what he paid for the whole. He also, at a subsequent time, understood from Boggess that Robinson had been in possession of the land, improving it and taking timber from it, since shortly after the sale.</p> <p>John B. Denham had a conversation with Boggess in 1850, in which he said that Robinson, on a fair settlement, would be owing him considerable, though as to part of the debt Robinson might, if he chose, plead the statute of limitations, and spoke of his purpose to have a settlement with Robinson in a short time to guard against the casualty of the death of one or the other. Boggess, in this conversation, stated that he held a part of Robinson’s land in his (Boggess’) name, and if he did not pay him what he owed him for horses and other things he had let him have, he (Boggess) would keep the land, and that as he (Robinson) had taken most of the timber off, he ought not to complain.</p> <p>David Holder had a conversation with Boggess about the land in controversy. Boggess spoke of it as a piece of land that he and Robinson had bought together, and said he understood Robinson was going to sue him for a deed for the same, and that if Robinson had done as he ought to have done, be would have made him the deed. He said that Robinson owed him some two or three hundred dollars and that he would make the deed after he paid him. He spoke of dealings between Robinson and himself, and of wheat and sheep he had let Robinson have.</p> <p>Samuel Boggess swears that he had an interest in the land, and that he let Robinson have it and gave him his title bond for it; that after he had sold it, Boggess offered him fourteen dollars for it, which he declined. (</p> <p>Fqlix R. Coffman had a conversation with Mr. Boggess in relation to this land, some five or six years after he purchased it at the sale : he asked him if he would sell any of it. Mr., Boggess replied in the negative, stating that Robinson was to have part of it, George Boggess a part, and the remainder he intended to keep for himself. He says that Robinson had had possession of part of the land, and made some improvements upon it a little west or northwest of the “tobacco house lot.” Before Robinson got possession of it, Caleb Bog-gess held the possession as guardian for the infant children of John Boggess, deceased, and it was during this time the tobacco lot was enclosed and improved.</p> <p>Edward Parrish, in 1848, expected to get a contract for building a bridge near the land, and went with Mr. Boggess to see if the stone on this land would answer for this work; he found the rock would answer, and asked Mr. Boggess to whom they belonged; he said they belonged to Thomas Robinson, and that he supposed he would sell them; they then went to the field where Robinson was, and in presence of Mr. Boggess, he asked Robinson his price per perch for the rock, and Robinson told him, if they would answer, and he was contractor, to come on and get them.</p> <p>Samuel Boggess proves that the land on which the building stone was, was the land now in controversy. He was after-wards examined as a witness for the defendant, and proves that Caleb Boggess had possession of all the cleared land upon the tract before Robinson moved upon it, and that the latter took possession of the whole at the same time and had made some improvement upon it to the extent of one and a half or two acres, that he also used the stone and timber upon the land at his discretion.</p> <p>J. Y. Hornor, a witness for defendant, states that he was a creditor of Robinson, and he gave up two tracts of land, one of fifty acres and the other of thirty-three acres, to be sold by the sheriff for the payment of his debts, saying he had nothing but his land to pay what lie owed; that these lands were sold, and bought by witness at four hundred dollars, which was within from forty to sixty dollars of paying the executions, including his own. Robinson did not claim or speak of any other land at the time. He says he knew of the purchase by Boggess, of the land in controversy, and that Boggess some time previously had offered to sell him a portion of it, that he spoke with Robinson on the subject, and found that be claimed it by a contract with Boggess; that he then had a conversation with Boggess, who admitted there had been a contract that Robinson was to have a portion of the land by paying the purchase money, which he had not done.</p> <p>John Furner being asked how he learned what he stated when he gave his deposition for the plaintiff— stated from whom he learned that Robinson had had land to sell, and that it was from Mr. Boggess he learned that the title was in him.</p> <p>David W. Robinson thinks Gray’s character for truth and veracity is bad, and would not believe him on oath. He never heard the defendant impeach his testimony, but had heard it impeached by persons against whom he had taken peace warrants.</p> <p>J. H. Robey thinks Gray’s character bad, and would not believe him on oath.</p> <p>Isaiah Harbert never heard Gray’s evidence questioned one way or another, but says his general character is bad, and he would not take him. Examined as to the circumstances of Robinson — says, he knows but little about it himself, but heard that he was broken. He had a debt of about fifty dollars against him of which he received payment, in conjunction with one Albertus Boggess, who also had a debt against Robinson, in certain stills purchased by Boggess on their joint account. He got half the stills, but would rather have got his money.</p> <p>Albertus Boggess had a debt of forty dollars against Robinson, contracted in 1835 or 1836; he paid twenty dollars on it, and the balance was paid on the stills he purchased from him on joint account of himself and Harbert. The price of the stills was one hundred dollars, which he considered a fair price; between 1837 and 1844, times were hard, money was scarce and people were complaining — at some time during that period, property could not be sold at a fair price.</p> <p>T. C. Martin, a constable, held a claim against Robinson, which he made by the sale of certain property given up for that purpose. He had a claim for some costs against him, for which he gave him a note on one Starks to collect, which, however, he failed to collect; some other property on the place besides that given up to be sold, blit thinking he had enough to pay the debt, he did not take much notice of it. Between 1839 and 1852, there was pressure in the money market — the people became distressed, and much property sold — heard the report that Robinson was broken, from Caleb Boggess, and from others, about the time he sold the stills.</p> <p>Truman Elliott was not acquainted with Gray’s general character for truth and veracity, but his general character was bad, as upon general report he could not believe him on oath; knew Robinson; heard that his property was held in the name of his wife, but had no recollection of hearing that he was insolvent; he had gone his security to L. Lowndes, for a debt of one hundred and twenty-four dollars and seventy-four cents, and Robinson had secured him by assigning a lease that he held; the debt to Lowndes was paid, and he was never called on for it. Sopie eight or ten years before, he had sold Robinson property on credit to the amount of one hundred and ten or one hundred and fifteen dollars, and took his note, which was paid shortly after it was due; there had been other dealings between them to a small amount, perhaps not exceeding fifty or sixty dollars at a time; when he sold Robinson the property referred to, he thought him good for the amount.</p> <p>■ On the 27th of September, 1865, the cause was heard on the bill, the answer filed, replications thereto, the exhibits and depositions when the court pronounced its decree declaring the plaintiffs entitled to a specific execution of the contract in the bill mentioned and requiring the defendants to convey the said fifty-three acres of land to the plaintiff by sufficient deed, and also to pay them their costs. From this decree the defendants, on the 17th day of September, 1870, appealed to this court.</p> <p>relied upon the following points:</p> <p>1. The bill charges a plain and distinct contract between the said Robinson and Boggess, by which the latter was to purchase in at the sale then shortly to be made, the sixty-six acres of land on joint account, to be divided between them on an agreed and understood line — that the said Boggess did make the purchase accordingly, and that it was afterwards agreed that Robinson should take for his entire interest in the property of Benjamin Robinson, the fifty-three acres allotted to him, and that the said Boggess should make him a deed for the same accordingly.</p> <p>2. That these allegations of the bill were duly taken for confessed by the said Boggess at the June rules in 1851, and although he subsequently obtained leave to file his answer within a limited time, he never availed himself of the leave, but died without answering the bill, and the cause was revived against his heirs in June, 1858, nearly two years after.</p> <p>3. That the denials in the answer of the defendants filed, though broad and sweeping in their character, yet lose much of their force from the fact that they embrace in their scope matters as to which the respondents could have no personal knowledge whatever.</p> <p>4. The contract and agreement alleged in the bill is sufficiently proven by the evidence. Boggess, the defendant, never filed an answer denying it during his life, and the existence of such a contract is proven by his own witness, Hor-nor, though with the qualification as stated by Boggess that Robinson had not paid what he was to pay; and it is abundantly corroborated by the employment of Denham, the surveyor, to make the division and allotment of the land between the parties, the continued possession of the same by Robinson, and its enjoyment by him with the knowledge of Boggess after the purchase, and without interruption by him, and the repeated recognitions by Boggess that it was Robinson’s land, to different persons, and that he was to make a deed for the same to any one he might direct. See the testimony of Gray, Furner, J. B. Denham, Holder, Coffman and Parish. The conduct of the parties is only to be ■ reconciled on the theory of a contract by which Boggess was to convey the fifty-three acres to Robinson or his appointee.</p> <p>5. The agreement between Boggess and Robinson, that the former should buy in the sixty-six acres at the sale oh their joint account, constituted a trust which would not be within the statute of frauds, but which it would be the duty of the court of equity to enforce without reference to the character of the evidence by which it was shown.</p> <p>6. But if this were otherwise, and if the contract were one coming within the statute of frauds, yet upon the proofs, such part performance of the same has been shown, as according to the well settled rules and maxims of the court of chancery, will entitle the plaintiffs to a decree for specific performances throughout. It is true that Boggess had taken possession of the sixty-six acre tract as guardian for the infant children, (of whom Robinson’s wife was one,) of John Boggess, who it seemed had some claim to this land; and Robinson after his marriage with the daughter of John Boggess, took possession of part of what was called “ the tobacco house field; ” but the land was sold as the property of Benjamin Robinson, and after the contract between Robinson and Boggess, Robinson’s possession was extended to and defined by the partition made by Denham, the surveyor, embracing the whole of the fifty-three acres thrown off on Robinson’s side, by the line running from the white oak corner to the nearest point on the outer line of the tract; and this possession was held for years by Robinson, under the contract with Boggess, and with his knowledge and perfect acquiescence. It was therefore a clear case of part performance, sufficient under the well settled doctrine of the court of equity, to take the case out of the operation of the statute of frauds and perjuries.</p> <p>7. The pretension now set up that Robinson was to pay for the fifty three acres in money is not sustained by the evidence. In truth, there is no evidence to that effect in the case, except the mere declarations of Caleb Boggess; and the whole conduct of both parties show that Robinson’s version of the matter is correct, that Boggess was to convey the fifty-three acres to him in consideration of his entire interest in the estate of Benjamin Robinson, deceased. That he had an interest in that estate, (that of his wife and Samuel Boggess,) is clear, and the acts and declarations of Boggess, as proven in the cause, show that he regarded Robinson as entitled to a conveyance of fifty-three acres in full satisfaction of his interest, whatever it was. But it seems Boggess claimed that Robinson was indebted to him on account of other dealings between them, and he determined to withhold the conveyance of the fifty-three acres until Robinson should pay lam what he then claimed on other accounts. This he -clearly had no right to do. Whether Robinson did owe him or not on those other accounts is not proven in the cause; at least all we have on that subject is the mere unsworn declarations of Boggess; but if he were so indebted, that gave Bog-gess no right to withhold the conveyance on that account. Such indebtedness on other accounts constituted no lien upon this land, and there is no pretence of any agreement on the part of Robinson that it was to be secured as by a lien upon the land. Nor is there any principle in equity upon which Boggess could successfully assert a claim to have such merely private and personal debt secured as by a lien upon the land, with which it was in no manner connected, or upon faith of which it was not contracted. The refusal of Boggess to make the conveyance upon this account was a mere assumption of a power on the part of Boggess, a mere creditor at large, which can find no warrant in the rules and principles of the court of equity.</p>

Action of debt brought to April rules, 1868, in circuit court of Mineral county, by Saul Hyre against Archibald Vandiver. The defendant pleaded non est factum and payment. Before the trial the plaintiff died, and the suit was revived in the name of Jacob Hyre, his administrator.

Suit in chancery in circuit court of Randolph county, commenced by summons issued 19th of June, 1866, in the names of Eleanor Currence and Mary Land, as plaintiffs, against Madison Daniels, defendant.

The bill was filed in tbis cause at February rules, 1870; in the circuit court of Hancock county, by John E. Stevenson against John S. Walker. It is unnecessary to state the particular allegations of the bill, as the question determined by this court relates rather to the proceedings upon an award' in the case, which purported to settle the matters in dispute.

The appeal in this case was from an order of the circuit court of Fayette county, rendered at the August term, 1871, on a rule issued on the 7th of June preceding, against M. M. Trimble, William Crawford and J. C. Lewis, at the instance-of O. A. Patton, trustee, who was plaintiff in a certain suit n that court, wherein Thomas Baxter and others were defendants.

<p>where the hill and answer ■were filed before the law of the Code of 1868, the rule of evidence must prevail that the sworn denial in an answer, of a material allegation in the hill, must he overcome hy two witnesses, or by one witness and strong corroborating circumstances.</p>

Bill of injunction in the Circuit Court of Mineral county, filed October rules, 1867, by Wright Welton, against Angus W. McDonald, trustee, John T. Peerce and Charles Williams. The facts disclosed by the record are about as follows : That in 1858, Peerce and Williams endorsed a note in the Bank at Moorefield, in Hardy county, for Welton, for the sum of five thousand dollars. That it was renewed from time to time until December, 1859, when it was protested.

Action of assumpsit brought to October rules 1865, in the •Circuit Court of Hampshire County.

The bill in this cause was filed at -July rules 1867, in the Circuit Court of Jackson county. It alleged, substantially, that Adamson, the plaintiff, had, in the year 1856, bought of the defendant Leachman, seven hundred trees in that county, and paid for them the sum of six hundred and thirty dollars. That when be went forward to out and remove them (the plaintiff lived in Ohio) he found that Leachman had sold the land on which they stood, and he was forbidden to do so.

Injunction granted .June 25th, 1871, in Mineral county circuit court. The bill alleges that a judgment had been obtained by the defendant Kelly, against the complainant, for the conversion of the property of the defendant Kelly, during the late rebellion, and that the complainant was at the time of the conversion, a regular soldier of the Confederate states’ government.

The facts in this case are, substantially, tbattbe Wheeling 'Gas Company was a corporation created by act of the General Assembly of… Held: so far as our examination of the cases go, that if arbitrators hear evidence when the party against whom it is introduced has had no notice of the taking of the same, or no opportunity for cross-examination, and does not consent to its being received, this is misconduct on the part of the arbitrators, and the court will set aside…

The bill in this case was filed at May rules 1867, in the circuit court of Harrison county. It alleged in substance, that by the act of the Assembly, passed in March 1849, the corporate authorities of Clarksburg, should have power to levy and assess taxes for the purposes of the town, on all property that ivas then subject to taxation by the Commonwealth.

<p>The case came from the circuit court of Jefferson county.</p> <p>The only question determined here was the demurrer to th e declaration, which had been overruled in the court below.</p> <p>The defendant brought the case- here for review.</p>

Bill filed in the circuit court of Monongalia'county, September rules, 1869, to Catharine Ralphsnyder, against Alpha Ralphsnyder, William Ralphsnyder, and John Yost, executor of the last will and testament of Aaron Ralphsnyder.

This cause arose upon the filing and recording in tbe circuit court of Wood county, on tbe 30fch of April, 1872, of tbe decree of this court, pronounced at the January term, 1872 in the cause of Cady vs. Gale. By that decree the defendant, Gale, was required to make a deed to plaintiff, Cady, for bis interest in a certain two hundred and fifty acres of oil land'. The interest of Gale was determined to be for life.

<p>II is not error to charge the offense oí selling spirituous liquors, rvlnes, &e. without a license, in the disjunctive, iustead of the conjunctive, by using 1he word “ or ” in lieu oí “ and,” in dlscribiug the various kinds of liquors and drinks charged in the indictment, to have been sold without a license.</p>

This case arose in Mason county. The indictment- was found in February, I860. A trial wits had in May, 1869, and the jury failing to agree, were discharged. A further trial was bad in September, 1870, and the defendant was found guilty and sentenced to two years confinement in the penitentiary.

The indictment in this case was found at the the March term 1871, of the circuit court of Ohio County. The opinion of Judge Maxwell contains a sufficient statement of the points at issue. The defendant brought the case to the court, after/judgment against him was had at the April term 1871.

<p>On tlio trial of tlie defendant for a misdemeanor, after tlie witnesses for tlie State liad been examined, and two witnesses for tlie defendant, tlie latter stated tliat lie liad another witness lie wished to examine to contradict a statement made by a witness for the State; and the court had the person so named by the defendant called at the court house door, and after waiting some time, tlie !.jury wore directed to retire and consult of their verdict. Shortly thereafter the person named appeared in tbe court room. A motion for a new trial was overruled and it is Held :</p> <p>That, sueli ruling was correct, it not appearing that the person was summoned, nor was there any affidavit as to what his testimony would have been if he. had been introduced and examined.</p>

Indictment found in August, 1871. Trial and verdict for State, April term, 1872, in circuit court of Bitchie county. The only question reserved ■ was tlie motion to quash the indictment, concerning which the opinion of President Berkshire contains a statement. The defendant brought the case here for review.

Indictment found for selling spirituous liquors without a license. Verdict and judgment for State, at March Term, 1872. An ample statement of the matters in controversy, is contained in the opinion of President Berkshire. Tlie defendent brought the case here.

Indictment found October term, 1871, in circuit court of Monroe. Trial and verdict against tbe defendant March term, 1872. Tbe following was certified as the facts proved on tbe trial: It was proved that about nine o’clock on the night of tbe 19th day of September, 1871, Mr. G-. Y. Perry, who resides in tbe county of Monroe, was aroused by calls of some one at bis yard gate who called for J. W. Saunders.

Action of debt in the circuit court of Pocahontas county, declaration filed October rules, 1868. Verdict and judgment for the defendant October term, 1870.

Action of debt brought to December rules 1870, in tbe circuit court of Mason county. Defendants, Hooff and others, tendered three pleas, two of which were on motion of plaintiff, rejected. The plea on which issue was taken, alleged a usurious consideration for the bond sued on, under the statute. The pleas rejected set up substantially the same defence, but amplified the transaction, and set forth the circumstances of the contract.

This was a rule awarded by this court at the January term 1871, against Hon. George Loomis, Judge of the circuit court of Wood county, on the application of William Douglass and S. Woodward. The petition for the rule alleged in substance that, on the trial of a case in the county of Wood, in December, 1870, wherein the petitioners were defendants, they had during the progress thereof, 'asked certain instructions by the court to the jury, which were refused.

Bill filed in the circuit court of Wood County, at November rules, 1865. Decree dismissing bill, October term, 1867. The material points arsiing in the ease will be found amply stated in the opinion of the President. submitted in substance the following: The learned judge of the court below in his opinion says : “ The contract sought here to be enforced was made in 1859, and the consideration therein expressed is $1,500.

This was an application for a writ of prohibition, filed in this court on the 30th of January, 1872.

Bill and attachment in equity in the circuit court of Green-brier county, filed at April rules 1837, by Moorman B. White, against H. 0. Middleton. The bill claimed that the plaintiff was assignee of C. A. Stewart, of certain claims, one bond and sundry fee bills, and that the defendant was a non-resident of the state,but had real estate within the jurisdiction of the court.

Action of covenant brought in tbe circuit court of Jefferson county, in January, 1868. It is conceived to be unnecessary to give any further statement of the case than is found in the opinion of Judge Maxwell, except the substance of the pleas which were allowed to be filed by the defendant below, and which filing was claimed to be error.

Injunction granted by tbe judge of tbe circuit court of Fay-ette county, on tbe 15tb of September, 1870, in vacation. The sole question here was tbe sufficiency or insufficiency of the affidavit to the bill. It was not made by a party to the bill. The defendant appealed.

Ejectment brought to September rules, 1860, in the circuit, court of Kanawha county. Trial and verdict for^ plaintiffs,. Hale and McMullin, December term, 1868. The only question determined in this court arose on the refusal of the court below to grant a new trial. The grounds for the motion are fully stated in the President’s opinion, except the matters stated in the affidavit of one of the jurors, alluded to therein.

Action of Trover in the circuit court of Kanawha county, brought in July, 1867. The plaintiff proved on the trial, in April 1869, that he left a flat boat in the care of the defend-ent, for hire, in 1861, to be kept until the former should call for it; that defendant in 1861, converted it to his own use by loading it with coal and sending it to market; that prior to the suit he had demanded the boat, and the defendant refused to deliver the same.