Volume 6 — West Virginia Reports

<p>SYLLABUS.</p> <p>H. Residing in Virginia, draws orders on the 2nd Auditor of the State, for interest due him, in favor of the Cashier of a Bank in Richmond, who collects the amount, and deposits the same to the credit of H, as so much cash "or dollars. In an action of assumpsit, the common counts arc filed; and the defendant files in addition to the plea of non-assumpsit, a special plea, alleging that said deposits were made in Confederate treasury notes, and that H agreed that the same might he paid and returned to him. Held :</p> <p>1. That the plea is immaterial, and if issue is joined upon it, ancl found for the defendants, it may be disregarded.</p> <p>2. When a jury is waived, and the whole case submitted to the court, and a judgment rendered, to which exception is taken, and the facts certified to this court, the Supremo Court will review the case, and if the judgment is found to be clearly against the law and facts, will reverse it.</p> <p>3.The Bank having filed pleas, introduced evidence, and made its de-fence, upon subjects other than the absence of demand, and the issue found upon the facts proved, for the Bank, and judgment rendered accordingly, cannot make the objection in an appellate court for the first time, that no demand was proved in the court below, no defence having been made there upon that ground, and demand before commencement of suit being averred in the declaration.</p>

<p>SYLLABUS.</p> <p>1. Upon a motion to dissolve an injunction before answer of tlie Defendant, all the allegations of the hill must he taken as true.</p> <p>2. "When failure of consideration is a defence relied upon against a hond, for the payment of money, such defence is an equitable one, and the party entitled to make it is not hound to make it, in a Court of law. — it is at his option, whether he will make such de-fence in a Court of law or equity, and if judgment has heen obtained on the hond in a Court of law, it is not necessary to entitle him to make his defence in equity against the judgment, that ho should aver in his hill any excuse, for not making such defence in the action at law.</p> <p>3. L., in his bill, upon which an injunction has boon allowed, avers that ho and H., jointly purchased a tract of land of T., for $70,-000,00, and paid T., the purchase money, and T., conveyed the land by deed to L., and H., jointly, and that T., afterwards conveyed by deed one-lialf of said tract to H., and that afterwards, L., executed his hond to T., in consideration that T., then, and there promised L., that he would make, and deliver to L., such other deed, and do such other acts as would or might he necessary to give L., a perfect title, free from incumbrances, to one-lialf of said tract of land, and T., obtained a judgment on said hond, for the use of H. L., after judgment required T., to make to him a deed for one-half of said land according to his said promise. T., refused to make the deed, and in the meantime T., had conveyed, or attempted to convey, by deed of record, his interest in the land to his brother-in-law, Held by the Court that under the said averments of the bill upon a motion to disolve the injunction before answer filed by any of the Defendants, it was error in the Court below to dissolve said injunction.</p>

<p>Syllabus.</p> <p>1. A bill alleging tliat L and A liad obtained the possession of certain bonds or promissory notes executed by themselves to the Plaintiff, and which were left in the hands of the Plaintiff’s agent, through false or fraudulent representations, with the design to cheat and defraud the Plaintiff, and had destroyed them, shows sufficient ground on its face for the jurisdiction of a Court of Chancery.</p> <p>2. "When the allegations of a bill are distinct and positive, and the bill is taken for confessed, such allegations are taken as true, without proof, but in respect to all matters not alleged with due certainty or subjects which from their nature require an examination, the obligation to furnish proof rests on the Plaintiff.</p>

<p>A Court of equity lias not jurisdiction in this case: Harrison vs. Nettleship, 2 My. & K. 423; fjrnithvs. Meluer, 9 "Wheat, 532; Crane & Bunnell, 10 Paige, 333; Gould vs. Huyen, 19 Ala. 438; Nicholson vs. Hancock, 4 H. & M., 502; Insurance Co. vs. Bailey, 13 Wallace, 616; Green, vs. Massic, 21 Grattan 356. The Plaintiff' was not entitled to relief cither equitable or legal: Towner vs. Taicics. 13- Grattan 705; Clark vs. Partridge, 2 Barr, 13; Lord Indmm vs. Child, 1 Brown Ch. Cas. 92; Groome vs. Led-yard, 2 My. & K. 251; and various eases given by the American editor in his annotations upon Woolam.</p>

An appeal from a decree of the Oireuit Court of Monroe County rendered on the 22nd day of June, 1871. The case is fully stated in the opinion.

<p>Syllabus.</p> <p>The Defendants, the Appellants in these cases, being no longer in existence, either as a Court or Corporation, their being having been extinguished by the Constitution of this State, and this fact being judicially known to this Court, the appeals taken in these cases arc directed to abate, in the absence of Legislation on the subject.</p>

The questions of this case arise upon the following undertaking, notice, return, and amended return: [Undertaking for the delivery of property.] William H. White, plt’ff, vs. John T. Sydenstricker, deft.

An action of debt instituted in the Circuit Court of Monroe county, on the 24th day of July, 1860, upon the following instrument: “ We promise and oblige ourselves, our heirs, &c., to pay 'William E. Black the just snm of two thousand five hundred dollars, for value received of him. Given under our hands and seals this 5th day of November, 1853.” ISAAC CAMPBELL & Co., seal. ANDREW CAMPBELL, seal.

<p> An appeal from a decree of the Circuit Court of Harrison County. </p> <p> The opinion of Judge Pauli, contains a sufficient statement of the case. </p>

The opinion of Judge Haymond contains a sufficient statement of the case. Held: that “ the omission to plead in time arose from accident, not negligence.” The following cases are in point, and show that relief should be granted in the case at bar: Lee vs. Baird, 4. H. & M. 453; Barrett et als. vs. Floyd et als.; 3 Call, 464 (side p. 536); Richardson vs. Johnston, 2 Call, 527-29; Isaac vs. Johnson, 5 Munf. 95.

<p>The opinion of Judge Haymond contains a statement of the case.</p>

This is an action of debt from the Circuit Court of Greenbrier county. The defendant, Beard, retained the Plaintiff as his attorney to defend an action against him and others, of whom the defendant, Brown, was one, his sureties on a bond executed to James Jarrett.

This was an action of debt upon a joint and several bond, instituted in the Circuit Court of Greenbrier county in July, 1887. Held: 1858-59, on the 14th days of May and October in each year. The notice to sue was given to Myles by the Defendant on the 10th day of September, 1858, which was subsequent to the September Eules, and, consequently, too late to institute suit and obtain judgment at the October term.

On tbe 14tli of September, 1870, tbe commissioners Avbo were appointed under Chapter. 42 of tbe Code of West Virginia, upon the petition of tbe Appellees, to ascertain what would be a just compensation for certain real estate of the Appellant proposed to be taken by tbe Appellees for their use, filed their report in the Circuit Court of Kanawha county.

This is a suit in equity instituted in the Circuit Court of Greenbrier county on the 12th day of September, .1868. A final decree was pronounced therein on the 24th day of April, 1872, against the Defendant Baker, from which he appealed to this Court. The opinion of the Court furnishes a statement of all the facts and questions arising in the cause.

On the 6th day of December, 1869, the Plaintiff exhibited his bill in the Circuit Court of Nicholas county against the Defendants, in which he alleged, that he loaned the late firm of John McAneany & Co., $100.00 •on the 1st day of February, 1859, $250.00 on the 25th •day of the same month, and $300.00 on the 24th day of May, 1860, for which he took the three several notes of said firm; that on the 13th day of March, 1868, he brought suit on said notes against John McAneany,…

The cause is stated in the opinion of the Court. 1st. It was error to dismiss the bill, because its object was two-fold; one to appoint a trustee in the place of Mr. Van Winkle, who refused to act. The other to enforce the trust against the fixtures, etc. That equity will not permit a trust to fail for want of a trustee; but has a peculiar jurisdiction in the appointment and enforcement of the duties of trustees, see the following authorities. 2 Rob.

<p>Syllabus.</p> <p>,lí a party takes an appeal from a decree by default before applying to the court in which the decree was rendered, or to the judge thereof to correct the errors of which he complains; his appeal must be dismissed, as being improperly taken.</p>

<p>■ Syllabus.</p> <p>A non-resident Defendant against whom a decree lias been made by publication, and who has not appeared in the ease in the Court below, cannot appeal from the decree. His remedy is that provided by the Statute.</p>

<p>Syllabus.</p> <p>M. G-., in her lili alleges that in 1854, she purchased, and had conveyed to her a tract of 2,000 acres of land; that on the 27th day of December, 1864, she, and her husband made a deed of lease to J. S. 0., and others for 100 acres, part of said tract, for the term of 20 years from the date of the deed of lease, for the price of $20,000 cash in hand, and for a rent reserved in the lease, one-fourth part of all the oil that should be produced upon the 100 acres demised. That afterwards the lessees and others organized a corporation by the name of the Oil Run Petroleum Company of West Virginia, for the purpose of mining, boring for, and pumping oil upon the land demised; that the corporation was created in the year 1865-That the corporation, by its agent and superintendent entered upon the land demised under the terms and provisions of the deed of. lease as her tenant. That the corporation as lessee held and occupied the land demised as her tenant, for the purposes mentioned in the deed of lease, and paid her husband and others, as her agents, the rent oil reserved until 1872; that sometime after said date the corporation, on demand being made, refused and failed to pay the rent due and reserved in oil to her, or to her husband, or to any other person for her; and did then, and there allege as grounds for such refusal and failure to pay the rent oil, that a certain "William Cady had notified, and ordered the corporation not to pay rent to her or to her husband, though by the terms of the deed of lease hound so to do. That the refusal to pay rent to her or to her agent on the grounds alleged amounted to a disclaimer of her title to the land demised, and that the corporation thereby forfeited its rights and interest in the term of years under the deed of lease, and are not entitled to the use and occupation of the land demised, but are strangers and trespassers thereon. Held,</p> <p>1. That, taking the allegations of the bill as stated to he true, the refusal to pay rent to the Plaintiff, or to her agent on the grounds stated, does not -work a forfeiture of the unexpired term.</p> <p>2. An estate for a fixed number of years in land, created by deed, -will not be forfeited by a simple refusal to pay rent, or any mere -words, where there is no open act of unmistakable hostility to the landlord’s title, his grantees or assignees, -with full notice from the tenant of his adverse title, or assertion of adverse title, and of his holding possession of the premises adversely to the landlord, his grantees or assignees, -when no condition or covenant of forfeiture is contained in the deed of lease; especially, when the term exceeds five years.</p> <p>3. The husband by virtue of bis marital rights became vested with an estate in the land amounting at least to an estate for the joint lives of the husband and wife; and the husband, his grantees and assignees, by reason thereof, became entitled to the possession and use of the land until the determination of such estate.</p>

This is an action of ejectment from the Circuit Court of Gilmer County, and in which there was a verdict and judgment for the Defendants.

The case is stated in the opinion of the Court. The appeal in this case is taken from the order of July 8th, 1872, allowing the Defendants to file the commissioner’s report, and refusing to discontinue the case on Plaintiff’s motion, at its cost; and, from the order of July 15th, 1872, overruling the exceptions to the commissioner’s report, and rendering judgment against the Plaintiff in favor of the infant Defendants, Cora P., Lillian C., and William A. Bradford, by name.

An appeal from tbe Circuit Court of Greenbrier County. Tlie opinion of the Court sufficiently states the facts. The Circuit Court should have dismissed the Plaintiff's bill. 1st. The Plaintiff having voluntarily executed his ¡bond to the Defendant, Moss, who was not a party to the sale of the house and lot, a Court of Equity can afford him no relief. • 2nd. The hill fails to aver any foot tending to show that the deed from Kincaid to Fisher was not duly recorded in 1863. 3rd.

S. W. Buffington died in 1861 or 1862, seized of a of land in Wood County, containing nine hundred and forty-five aeres and twenty poles; leaving a widow, etMatilda Buffington, and three children, William, America, and Edward. This land was never partitioned amongst the heirs, nor was dower assigned to the widow. The daughter America sold her interest in the land before the institution of this suit to the Defendant, William Buffington.

<p>' The case is sufficiently stated in the opinion of the Court.</p>

<p>Syllabus.</p> <p>A special plea to an action on a bond, averring that the makers and payee were all officers in the service of the Confederate States at the time of its execution, and that the consideration of said bond was Confederate Treasury Notes, and that, the same, at the date of said bond, were of no value” and utterly worthless outside of the military lines of the said Confederacy.</p> <p>Held to bo insufficient.</p> <p>A special plea to an action on a bond, averring that the same was made and payable in the city of Richmond, the Capital of the Confederate States, in the currency of said States, and that the makers of said bond were in said city at the time of its maturity, prepared, ready and willing to make payment, and further averring in substance, that the bond was not presented then for payment.</p> <p>Held to be insufficient.</p>

<p>Syllabus.</p> <p>"W., by bis -will, devises a tract of about three hundred and seventy acres of land “tobe equally divided in value between his ten heirs, so that each one’s part should be adjoining his lot described; or as near so as circumstances will allowwill proved in 1837.</p> <p>In 1859, P. flies his bill for a partition of said land. To this bill several parties interested in said land, either as devisees or purchasers, file their joint answer, alleging that partition had been made of said land in 1841, by mutual agreement of the then owners of the same, the lines of division marked out, and that all the owners had acquiesced therein, although no deeds of partition had been executed therefor, and claiming that said partition should not now be disturbed. Proofs were taken, but the same not being sufficient in the opinion of the Court below to sustain the answer, the Court directed the surveyor of the county to partition said land according to the directions of the wTill; this was done and report made to the Court; no objections being made thereto on account of any inequality or injustice in the allotments therein reported, the report ivas confirmed, and deeds ordered to ho made, by the parties respectively. Prom this order and decree an appeal is taken to this court.</p> <p>Held, That there is no error in the decree of the Court below.</p>

<p>Syllabus.</p> <p>A. signs the following contract in writing: “Received, Parkersburg, March 7th, 1870, of S. B. Bentley, two hundred dollars, for which I am to make him a deed for a certain tract of land in Lubeclc Township, containing one hundred and thirty-seven acres, which I purchased for taxes in the name of Thomas Shriens.” B., subsequently requests A, by a note in writing to make the deed for said land, to 0.; A. not complying with the request; B. sues for a specific performance of the contract, and that a deed for said land may be made to himself, on tendering to A., the amount of the purchase money due thereon. A decree is made for a specific performance of the contract, and that a deed be made to B., for the land:</p> <p>Held : There is no error in said decree.</p>

At the July Term 1865, of the Circuit Court of Roane county, judgments were rendered against Hugh Kyger in two actions of trespass alleged to have been done during the late civil war and which were therewith connected. While these actions were pending, on the 22nd day of June 1865, Kyger conveyed to D. R. Neal by a deed, absolute on its face, certain lands lying in said county.

The ease is stated in the opinion of the Court. The first question is as to the force of the statute of limitations. In any aspect of the case, the suit was brought after the 1st oí April 1869, so that the Code governs. By the plain reading of the Code this action is barred; but the statute was suspended by the war, as the Plaintiff claims. The war may have suspended a statute that had an existence during war.

<p>The case is stated in the opinion of the Court.</p>

<p>Syllabus.</p> <p>When a debtor, by way of compromise, confessed a judgment for a less sum, which was accepted in satisfaction of a larger one; and the debtor seeks relief in a Court of equity because be was entitled to. • a credit of which he was not aware, he should allege and prove that, though he used proper diligence, or such diligence would have been unavailing, he was by fraud, accident, mistake, or surprise prevented from ascertaining the fact or from making defence.</p> <p>When a Plaintiff in equity does not, in his bill, show a case for relief, whether any exception has been taken or not, an injunction gran' ted is properly dissolved on the hearing.</p>

<p>Syllabus.</p> <p>Whether a court, in any case, will undertake to coerce parties actually to commence or continue a partnership business for a series of years is a question very difficult of solution, upon which the authorities at hand are not satisfactory.</p> <p>Though the late Board of Supervisors could not lawfully establish a ferry over any other water course within half a mile of another legally established ferry over it, the Board might establish a ferry over the Ohio River at any place.</p> <p>h. is admitted to be the owner of a ferry, from a landing in the State of Ohio, across the Ohio River. It is alleged that the ferry was established according to. the °law of Ohio; but this is denied. B. owned a ferry, from Ms land in tMs State, across the river, to L.’s landing. In consequence of the obstruction of a private road down the bank of the river to the water at B.’s ferry, he, for many years, used a landing above. B. seems to have regarded L.’s ferry as valid, and L. to have regarded the upper landing used by B. as that owned by him. They make a contract under seal, to enter into partnership to run the two ferries, to continue five years; and to build a boat for the purpose. L. with B.’s approbation builds the boat nearly to completion. Neither party does anything else toward putting the partnership in operation. After the contract between L. and B. was made, on D.’s application the Board of Supervisors granted him leave to establish a ferry at the upper landing mentioned, about two hundred yards above B.’s lawful landing. D. repaired a-public road to near the water at this place, built a commodious boat and put and continues his ferry in operation. This renders L.’s and B.’s femes of little value. About a year after the contract, while D. was running his ferry, B. sold his land, and ferry to D. Tinder these circumstances a court of equity, will not at the instance of L. coerce B. to commence or continue the partnership business.</p> <p>L.’s franchise, if he could and did have a legal ferry, can not be presumed to be of higher character or more extensive influence than a ferry established under the laws of this State. "Whatever privilege L. may have, he can not exclude B. from running his ferry and competing for the transportation across the river, and the emoluments it may return.</p>

<p>Syllabus.</p> <p>1. It is tlie usual course when the opinion of the court is in favor of the defendant on a demurrer to the whole declaration, to allow the plaintiff to withdraw his joinder in the demurrer, and amend his declaration, if the ground upon which the demurrer is sustained is of such a nature, as can ho removed hy an amendment. And there is no difference in this respect at common law or hy statute between penal, and other actions.</p> <p>2. So'mueh of see. 56 of Chap. 125 of the Codo of this /-¡tato as provides, that, if the court overrule the objection, and allow the plea to be filed, tlie plaintiff may take issue thereon, without losing the benefit of the objection, and may on appeal from a judgment rendered in the ease in favor of the defendant, avail liimself of the error committed in-allowing such plea to he filed, without excepting to the decision of the court therein, does not apply where the plea is rejected by the court. In such ease the judgment of the court rejecting the pica should he excepted toby tlie party offering it. •</p> <p>.3. If a plea is filed by a defendant, -without objection, and thereby becomes a part of the record, and afterwards the court on motion of the plaintiff, rejects the plea, and the défendant fails to except to the opinion of the court in rejecting the plea the Appellate Court must presume that the defendant acquiesced in the decision of the court in rejecting the plea.</p> <p>4. Although it may, strictly speaking, be irregular for the court after an improper plea has been filed, and thereby become a part of the record, to entertain and grant a motion to reject the same, still if the court does so, it must, in substance and effect, ,be regarded as setting aside the plea, and though it is done irregularly the proceedings will not be reversed for such irregularity. In such case the court having done right substantially, its proceedings will not be reversed because of mere informality in the mode of doing it.</p> <p>5. If an insufficient plea be tendered, and permitted to be filed, it is competent and proper for the court at a subsequent time to correct that error by setting aside the plea.</p> <p>6. In an action upon a penal statute, more than a year after the cause of action accrued, the plaintiff, on a demurrer to his declaration being sustained, asked and obtained leave of the court to amend his declaration, against the objections of the defendant, and the declaration is amended in court, and thereupon the defendant tenders to the court a plea, in substance, that the plaintiff, his action ought not to have and maintain, because, the cause of action did not accrue within one year before hefiledhis amended declaration:</p> <p>Held,</p> <p>That under the law in force in this State on the 9th day of March 1869, the statute of limitations did not run in such case in favor of the defendant up to the time of the filing of the amended declaration, but only until the commencement of the suit, that is the issuing of the original writ.</p> <p>7. "When there is a demurrer to a declaration and no formal joinder therein appears to have been entered of record, but the record shows that the “parties appeared by their attorneys, and the matters of law arising upon the defendant’s demurrer to the plaintiff’s declaration, being argued by counsel, and considered by the Court the same is overruled.</p> <p>Held,</p> <p>That although it may have been irregular for the court to act upon the demurrer without joinder therein being entered of record, still the judgment of the court below will not be reversed for this cause, if the declaration is good.</p> <p>8. A corporation should sue and be sued by its true name, and if it is sued by its true name it is not necessary to show in the declaration how it was incorporated, or to aver- in the declaration that it is a corporation duly constituted, or that it is authorized by law to sue or be sued in its corporate name; but these questions may be put in issue by the defendant, or raised upon the trial of- the general issue.</p> <p>9. It is a general principle in pleading that it is not necessary to allege in the declaration more than it is necessary to prove at the trial, except so far as maybe necessary for a right understanding of allegations that are required to be proved.</p> <p>10. A private law is one which relates to private matters which do not concern the public at large, and a public law is one which effects the public, either generally or in some classes.</p> <p>11. The courts take judicial notice of all public laws or acts of the Legislature, and they need not be proven. Private laws or acts of the Legislature, it seems, must be proven when in issue.</p> <p>12. Under the Code of 1860, and the Code of 1868, acts and resolutions of the Legislature, though local or private, may be given in evidence without being specially pleaded; and an appellate court must take judicial notice of such as appear to have been relied on in the court below.</p> <p>13. In considering the demurrer to the declaratian in this cause if the acts of the Legislature incorporating the Defendant can be considered private acts, it was competent for the Court to read and consider said acts on their being brought to its attention by the Plaintiffs attorney.</p> <p>14. The 61st Chap, of the Code of 1860 is a public law.</p> <p>15. The acts of the Legislature conferring corporate powers and privileges upon the'Baltimore and Ohio Railroad Company are such public acts as the Court should notice ex officio.</p> <p>16. The Court ex officio knows that the Baltimore and Ohio Railroad Company is an incorporated railroad company within the boundaries of this State, and was when Chap. 61 of the Code of 1860 of Virginia took effect, and was before and at the time said chapte-took effect, governed by the act passed by the Legislature of Virginia on the 11th day of March 1837, prescribing general regulations for the incorporation of railroad companies so far as the same can apply.</p> <p>17. It was not necessary to allege in the declaration in this case that the rates prescribed by sec. 19 of Chap. 61 of Code of 1860, applied to the road of Defendant, nor that different rates had not been prescribed by law.</p> <p>19. Under the provisions of the Code of Virginia of 1860, Chap. 171, see. 31, and of the Code of 'West Virginia, Chap. 125, see. 29: On a demurrer, (unless it he to a -plea in abatement), the court can not regard any defect or imperfection in the declaration or pléad_ ings unless, there is omitted something so essential to the action or defence that judgment according to law and the very right of the cause cannot he given.</p> <p>20. The action in this ease is based upon the provisions of the 61st Chap, of the Code of 1860, 1st and 18th sections thereof.</p> <p>21. The amended declaration in this cause„ is sufficient in law.</p> <p>22. The appeal in this case was properly taken by the Appellant, he-cause the controversy is “concerning the right of a corporation to take toll.”</p> <p>23. It is unnecessary to prove before the Court matters of law or fact of which it may take judicial notice.</p> <p>24.' The joinder in demurrer not being added is not an available error in an appellate court, when the demurrer has been argued and decided on its merits below without the objection being made.</p>

<p>The case is stated in the opinion of the Court.'</p>

<p>The case is stated in the opinion of the Court.</p>

<p>The case is stated in the opinion of the Court.</p>

The appeal in this cause was taken by G. D. Camden, L. H. Somers and Sarah E. Adams, who were purchasers of slaves at a judicial sale decreed in the cause. The facts are stated in the opinion of the Court.

<p>Syllabus.</p> <p>1. In a suit at law, in which an attachment had been sued out against the property of the defendants, and levied, and judgment had therein against the defendant on publication, the defendants .appeared in the court, in which the judgment was rendered, within live years from the rendition of the judgment, and offered to file their petition in the case,' ashing for a re-hearing of the same without accompanying the petition with the affidavit prescribed in such case by the Act of the Legislature passed on the 11th day of March 1865, which affidavit, so prescribed, is commonly known, and called “the suitors test oath.” The court below refused to receive the petition, on the ground that the same was not accompanied with said affidavit and the supreme court of appeals of this state affirmed the judgment of the court below in refusing to receive the petition. Held by the Supreme Court of the, United States, upon a writ of error, that so much of said act of the Legislature as prescribes and requires said affidavit, is contrary to the Constitution of the United States, and is therefore null and void; and that the judgment of the Supreme Court of Appeals of the State of West Virginia in affirming- the judgment of the court below, was erroneous and must be reversed.</p> <p>2. The mandate of the Supreme Court of the United States reversing the judgment of the Supreme Court of Appeals of this State for the cause aforesaid, being presented to the Supreme Court of Appeals of this State, and asked to be entered of record, and the Supreme Court of Appeals of this State asked to reverse its judgment in the case and to conform its judgment to the judgment of the Supremo Court of the United States. Held.</p> <p>That it is the duty of the Supreme Court of Appeals of this State to cause the mandate from the Supreme Court of the United States in said case, to be entered of record, and to reverse its judgment, and conform the same to the judgment of the Supreme Court of the United States.</p> <p>That in such case, it is proper for this Court to render judgment in favor of the appellants, here against the appellees for the amount of costs recovered by them against the appellee in the Supremo Court of the United States, (the said costs to be paid but once by the appellee, and also for their costs expended in this court, and also to reverse the judgment of the court below, and remand the cause to the court last named, with directions to receive the said petition for a re-hearing of the case without the said affidavit, and to grant the re-hearing prayed for in the petition withoutjaffidavit, unless legal, and sufficient reason other than the want of such affidavit be shown, why the prayer of the petition should not be granted, and further to proceed in the same as justice requires, and the law directs.</p>

<p>The case is stated in the opinion of the Court.</p>

<p>The case is stated in the opinion of the Court.</p>

<p>Tlie case is stated in tbe opinion of the Court.</p>

<p>Tbe case is stated in tbe opinion of the Court.</p>

<p>The case is stated in the opinion of the Court.</p>

<p>Syllabus.</p> <p>1. Under the provisions of the Code of this State, a judge of a circuit court has no power or authority to render a decree in vacation, which purports to he final, as to any subject embraced by it.</p> <p>2. Upon an appeal taken from such a decree as matter of right, under the provision of chapter 135 and sections 1, 2, 3 and 4 of the Code, the appellate court will not dismiss the appeal because the decree was rendered without sufficient authority by the judge, but will take jurisdiction of the cause and decree, so far, and so far only, as to reverse the decree, and remand the cause to the circuit court, there to he proceeded with, and heard and determined according to the rules and usages governing courts of equity in this State.</p> <p>3. The judge having acted upon the cause prematurely, as well as without proper authority, it is not proper for the appellate court to determine and decree upon the merits of the case, especially as there are infant parties in interest, before the cause is first heard and acted upon by the court below.</p>

<p>The case is stated in the opinion of the Court.</p>

<p>The case is stated in the opinion of ihe Court.</p>

<p>The case is stated in the opinion of the Court.</p>

<p>Syllabus.</p> <p>1. A. filed Ills bill against, B., the administrator of 0., claiming a debt against the estate of 0., claiming that he was entitled to have his debt paid out of the assets in the hands of the administrator. B. answered the bill, and claims that there was not sufficient assets to pay the debts against the estate. The court referred the cause, by consent of the parties to the bill, to a commissioner to ascertain among other things “What debts are due from said estate and respective priorities, if any, and any other matters deemed pertinent by any of the creditors of the said estate, or any of the parties in interest;” and directed the commissioner in the decree, before proceeding- to state the account, to give notice to the creditors and all persons interested in the estate, by publication of the time and place of talcing the same in sqme newspaper published in the city of‘Wheeling-, at least four weeks before commencing to take the said account; and the court, in the decree, adjudged that such publication shall be equivalent to personal service. The commissioner proceeds to discharge his duties under the decree, and among other debts against the estate of A., he reports a debt as being duo to B. of $4,000, in the aggregate, exclusive of interest. The court hears the case upon the bill, answer of L., administrator, and report of the commissioner, to which no exceptions were filedj and directs what disposition shall be made of the assets, and orders that after paying the costs of suit and the funeral expenses, amounting to $109.08, out of the residue to pay th'e balance pro rata on the debts mentioned in Schedule A to the extent of the funds in his hands — Schedule A is a list of the creditors of the estate, showing the amount due to each, filed with the commissioners report and as part thereof, and B. is one of the creditors. B. feeling aggrieved by this decree, moves the Circuit Court after due notice, to reverse and set aside said decree, and the Circuit Court, oil motion, dismissed the motion to reverse. Held,</p> <p>That it was not error in the Circuit Court to dismiss the motion, because the decree sought to be reversed was not a decree on a bill taken for confessed.</p>

<p>The case is stated in the opinion of the Court.</p>

This is an action of trespass on the case from the Cir-tcuit Court of Tucker county.

This is an action of assumpsit, brought by the Plaintiff against the Defendant, in the Circuit Court of Ohio county, to recover $1,000, the amount alleged to be “due for loss by fire, insured against by said Company,” and in which there was a verdict and judgment for the Plaintiff for the amount claimed, with interest.

<p>Tbe case is stated in tbe opinion of tbe Court.</p>

This is an action of covenant, from the Circuit Court of Ohio county. On the 18th clay of September 1867, the Defendant issued to the Plaintiíi a policy of insurance on the Steamer Potomac for $5,000, and on -which the premium was $400.

<p>The ease is stated in the opinion of the Court.</p>

<p>Syllabus.</p> <p>In a HU in. equity preferred by an executor, as sucb, lie ought to describe himself as the executor of his testator.</p> <p>It is not proper for an executor who sues, to describe himself merely as “personal representative” of a person deceased.</p> <p>The promise or agreement by one person to convey or transfer land or-an interest therein to another, and either the actual payment by the latter of the consideration, or the promise or agreement by him¡ to pay it, together, c onstitute an executory contract for the sale of. land. ...</p> <p>The whole contract — including the consideration — need not he in writing. But so much as is required to be embodied, memorized or noted in writing, must be signed by the party to bo charged by the contract.</p> <p>When under a contract not signed by the purchaser, he has taken possession, a court of equity, at the instance oí the vendor, will decree specific execution.</p> <p>Without such taking or retaining of possession, though the contract was signed by the vendor, and accepted by the purchaser, the former cannot, merely by reason thereof, enforce the contract against the latter.</p> <p>When a party who has made and signed a contract in writing for the sale of land, sues a purchaser for specific execution, in order to enforce a sale of the land and application of the proceeds to the satisfaction of the consideration, he should allege that the defendant promised or agreed to pay the consideration.</p> <p>The plaintiff, however, need not allege that the contract or agreement to pay the consideration, was in writing and signed by the defendant,</p> <p>But if the defendant, by answer, denies the promise or agreement, on his part, or if, by plea or answer, he admits the contract, but relics on its not having been in writing and signed by him, the plaintiff must prove that the contract was made in writing and signed by the defendant.</p> <p>Or if neither the contract, nor any memorandum or note of it, was in writing signed by the defendant, but under the contract he took possession of the land, and committed waste thereon, or did such act of part performance as to entitle the plaintiff to a specific execution, the plaintiff should allege the fact, either in the original bill, or, after the plea or answer, in an amendment.</p> <p>To the bill of an executor to obtain specific execution of a contract for the sale of land, the heir, upon whom the legal title descended, or the devisee to whom by the will it was given, should be a party. It should not, by the bill, bo loft in doubt, -whether the title of the decedent passed to a party to the suit, or not.</p> <p>When a defendant demurs to a bill and the demurrer is overruled and the defendant is ordered to answer, and he appeals, and the appellate court reverses the order, it remands the cause, with leave to the plaintiff, to amend the bill.</p>

On the 4th day of June 1873, ’William L. Bridges filed in the Supreme Court of Appeals a petition in which it was represented that on the 15th day of April 1873, at a meeting of the Board of Public Works, the said Board, pursuant to the provisions of an act of the legislature passed April 1st 1873 entitled “An act to amend and re-enact seeds six, seven, fourteen and nineteen of Chapter one hundred and sixty-three of the Co e of West Virginia,” did on the said 15th day of…

<p>Syllabus.</p> <p>After January 1873, when the Boards of Supervisors and Recorders had ceased to exist under the Constitution, though jurors could not ' he obtained under sections 3, 4,5, 6, 7, 8, 9, 10, 12, 16 of Chapter 116 of the Code, to try cases pf felony; in such cases they could he summoned and selected under section 3 of Chapter 159.</p> <p>Section 21 of Chapter 116 of the Code relative to special juries, amended in 1870, does not apply in cases of felony.</p> <p>When on the 1st of March 1873, a prisoner charged with murder was sit to the bar and announced that he was ready for trial, whereupon the court expressed the opinion that the prisoner might he legally tried by a special jury, and informed him that unless he askod to be tried by suoli a jury the case would be continued; and thereupon the prisoner, stating that he did not wish to waive his right, but in order to get a trial, asked for a special jury. It is considered that what the court said and did was erroneous, and influenced the prisoner to ask for a special jury — and so to waive his right to strike eight jurors from the panel and acquiesce in the wrong of the prosecuting attorney’s striking off two without cause; and that the accused is not precluded to question the legality of the proceeding, as if he had not asked the special jury but at the proper time had objected, or had moved to strike eight from the panel, or had objected to the prosecutor’s striking off any.</p>

This is a case of a contested election arising under the provisions of the Code of West Virginia, as found in chapter 6, sections 2 to 14 inclusive, which are as follows: 2. Held: and with-' out ever having been altered or changed to said house by authority of law; the house of said Ormsby not having been prescribed by law as the place for holding said election.

This is a case of a contested election arising under the provisions of the Code of West Virginia, as found in chapter 6, sections 2 to 14 inclusive. These provisions are set out in full in the preceding case of Loomis vs. Jackson at page 617, and reference is here made to them. In pursuance of section 13, aforesaid, the following orders were issued by His Excellency John J. Jacob,, Governor of the State of West Virginia: Executive Department, January 2nd, 1873.