Volume 7 — West Virginia Reports

This was an appeal from a judgment of the circuit court of Preston county, rendered on the 18th day of June, 1868. The Hon. John A. Dille, then judge of said circuit' court, presided on the trial of the cause.

This was an appeal, by the plaintiff below, from the judgment of the circuit court of Ohio county, rendered on the thirty-first day of October, 1872. The Hon. Thayer Melvin, Judge of the First Judicial Circuit, presided at the trial of the cause.

This was an appeal, by the defendants below, from a judgment of the circuit court of Jefferson county, rendered at the April term, 1869, thereof, in a suit therein pending, wherein the Farmers’ Bank of Virginia, sue-Ing for the use of J. M. Goddin and Samuel Robinson, assignees and trustees, was plaintiff, and Thomas H. Willis and B,. B. Washington, were defendants. The Hon. Joseph A. Chapline, then judge of said circuit court, presided at the trial of the cause below.

This was an appeal, by the plaintiff below, from the judgment of the circuit court of Jefferson county, rendered at the August term, 1868, of said court, wherein Hezekiah Roderick, was plaintiff, and the Baltimore and Ohio Railroad Company, defendant. The Hon. Ephraim B. Hall, judge of said circuit court, as organized under tbe Constitution oí 1863, presided at the trial below. The facts are sufficiently slated in the opinion of the Court, delivered by Pauli, Judge.

This was an appeal, by John Burns, from a decree of the circuit court of Berkeley county, rendered on the fourth day of November, 1870, in a suit therein pending, between John W. Pitzer, administrator of John H. Likens, deceased, Dennis Murphy and Charles James Faulkner, complainants, and John Burns, John P. Kear-fott, administrator of Samuel D. Campbell, deceased, John S. Light, Bartley Pitts and Ruth his wife late Ruth Burns, John W. Pitzer, administrator of Meverell…

An appeal by James S. Brown and Ann B. Morgan from a decree of the circuit court of Berkeley county, rendered on the 4th day of September, 1871, in a suit pending in said court, wherein the American Bible Society and the Board of Domestic Missions of the General Assembly of the Presbyterian Church of the United States of America were complainants, and Bobert Berry, James S. Brown, William A. Morgan and Ann B. Morgan, his wife, the Board of Foreign Missions of the…

This was an application to the Supreme Court of Appeals, by Urias Buskirlc, for a writ of prohibition against the Hon. Evermont Ward, Judge of the circuit court of Cabell county, to prohibit and restrain him from further proceeding to try said Buskirlc, upon an indictment which had been found against him, for the murder of one Morgan.

This was an appeal by Matthew P. Wyatt and Jacob M. Kelly, from a decree rendered by the circuit court of Kanawha county, on the 16th day of April, 1869, in. a suit in chancery therein pending, wherein William A. Forqueran was complainant and the said Matthew P„ Wyatt and Jacob M. Kelly and Charles P. Brown and Sarah A., his wife, Sally W. Craig, John Tyler and Martha Jane, his wife, John W. Morrison and Mary E., his wife, John D. Forqueran, Mary Rust, Susan Forqueran,…

An appeal from a decree of the circuit court of Monroe county, by the respondents in a suit in chancery pending In said court, wherein John Hinchman, in his own right and as administrator of William Hinchman, Jr., deceased, Andrew Hinchman, Mary Hinchman, Thomas Johnson and Minerva, his wife, Andrew A. Miller, James Miller, Elizabeth B. Miller, George Miller, Samuel W. Beard, and Sarah, his wife, George W. Poage and Cornelia A., his wife, William B. Johnson and Agnes, his…

This was an appeal from the judgment of the circuit. court of Mason county, rendered on the 28th day of May, 1872, in a certain suit therein pending, wherein the Valley City Salt Company was plaintiff and Major Brown, Isaac Green and Mahala his wife, Joseph Hereford and Susannah his wife, Lydia Pumphrey, Virginia Pumphrey, Ella Pumphrey, Alice C. Pumphrey, -Boss and Cassandiahis wife, Bazelel J. Pumphrey and Ann his wife, George W. Pumphrey in his own right and as executor…

An appeal from the judgment of the circuit court of Mason county rendered, upon the verdict of a jury, on the 30th day of May, 1871, in a suit at law, pending in said court, wherein Daniel Polsley and Daniel W. Pols-ley, partners in the practice of law, under the firm name of Polsley & Son were plaintiffs and, Lewis Anderson, defendant. ■ On the 23d day of December, 1870, the plaintiffs instituted an action of trespass on the case in assumpsit against the defendant and the…

-^n appeal by Cyrus A. Rupert, Thomas A. Henning an-d J- Gr.

<p>1. Notwithstanding the act of the Legislature approved the 21st day of December, 1872, entitled “:m act regulating appeals, writs of-error and supersedeas," does not allow an appeal from an order of a judge of a circuit court granting an injunction, an appeal from, such an order, pending in the Supreme Court of Appeals of this State, on the 31st day of December, 1872, and the first day of January, 1873, and not heretofore decided, is still pending in this Court andit still has power and jurisdiction to hear and determine the same upon its merits or otherwise, as may be proper, under the provisions of the twelfth, seventeenth and twenty-first sections of the Schedule to the Constitution of this State, and the act of the Legislature, approyed January, 11, 1863, entitled “An act organ-ising the Supreme Court of Appeals, defining its jurisdiction and powers, and prescribing its manner of proceeding,” and'especially under the provisions of the fourth section of the latter act.</p> <p>2. An injunction is not granted to restrain a mere trespass to real property, when the bill'does not, on its face, clearly aver good title in the plaintiff; nor, even then, as a general rule, (though perhaps not universal) where the injury complained of is not destructive of the substance of the inheritance of that which gives it its chief value, oris not irreparable, but is susceptible of complete pecuniary compensation and for which the party may obtain adequate satisfaction, in the ordinary course of law.</p>

Tbis was an appeal, by Joseph M. Ocheltree, from a judgment of the circuit court of Greenbrier county rendered on the 7th day of October, 1871, in an action of ejectment therein pending, wherein the said Ocheltree was plaintiff, and Cyrus McClung, Samuel K. McClung, Alpheus P. McClung, Frank McClung and James Rader, infant, and Calvin Rader, infant, heirs at law of Charles McClung, deceased, and Nancy McClung, widow of said Charles McClung, were defendants.

An appeal, by Robert Patterson, from a decree of the circuit court of Pleasants county, rendered on the 12th day of August, 1872. The complainants below were Joseph S. Reed, Robert R. R. Reno, David Swope, Arthur W. Reeves and M. Bachman; and the respondents Robert Patterson and Harriet S., his wife, Philander S. Bra-ford, Aaron R. Doutt and ~W. W. Hall, trustee.

An appeal, by Ludington, from a decree of the circuit court of Greenbrier county, rendered on the 13th day of •October, 1871, dissolving an injunction and dismissing a bill, in a suit therein pending, wherein Samuel C. Lud-ington and H. D. McClintic were complainants and Austin Handley and J. H. Otey Cary as late partners, com7 posng the firm of Handley & Cary and Alexander Knight then sheriff of Greenbrier county, were respondents.

This was an appeal taken from a decree of the circuit court of Greenbrier county, rendered on the 19th day of April, 1871, in three several suits in chancery, then pending in said court, which were consolidated and brought on to be heard together. In the first, Samuel C. Ludington was complainant, and Benjamin F. Eenick and Benjamin F. Harlow, respondents.

An appeal by Thomas J. Jenkins, William A. Jenkins, George W. Holclerby, Warren P. Rece, Peter C. Buff-ington and William H. Buffington, from an order of the circuit court of Cabell county, refusing to permit the parties above named to file their petition and application for a re-hearing of a certain judgment rendered in certain proceedings at law against them and others, wherein Robert Boss was plaintiff.

This was an appeal by Martin Van Burén Hurst, from a judgment on the verdict of the circuit court of Harrison county, rendered on the 30th day of May, 1870, in an action of ejectment then pending in said court, between Shadrach Hurst, plaintiff, and said Martin Van Burén Hurst, defendant. The case was brought here for the construction, by this Court, of two clauses in the deed from the appellee to the appellant.

An appeal from an order o,f the circuit court of Fay-•ette county, setting aside a report of commissioners ap-under tbe provisions of chapter forty-two of the 1° ascertain a just compensation to the appellee, Halstead, the defendant below, for certain land owned by him, situate in said comity, which was proposed to be taken by the Chesapeake and Ohio Railroad Company, the appellant here and the plaintiff below, for its uses and purposes.

' -An appeal, by Thomas MeHuffinan, from a judgment of the circuit court of Greenbrier county,' rendered against him and' Spencer R. Hill in favor of John V. Perry, for the use of Jacob L. Bloom, for the sum of $273.50, with interest thereon from the date of the judgment, December 8, 1871, until paid and costs. The facts appear in the opinion of the Court. - The Hon. Joseph M. McWhorter, judge of said circuit court, presided at the trial below.

Appeal, by Alexander Kearns, from a decree of the circuit' court of Greenbrier county, made and entered on the 29th day of June, 1870, in a certain suit in chancery therein pending, wherein David Jameson was complainant and K. H. Gillilan, executor of Joseph Myles, deceased, Emily Myles, Erasmus Myles, Turpin Myles, Joseph Myles, and the following infant heirs at law of said Joseph Myles, deceased, were respondents, to-wit: Harlow Myles, Augustus Myles and Edward Myles.

This is a sequel to the case of Middleton Ezor. v. White, reported in 5 W. Va. 572. After the suit was reinstated in the circuit court of Greenbrier county, the'plaintiff retook the deposition of Charles A. Stuart, his assignor, he having, by his writing under seal, released the said Stuart from all liability, on,account of such assignment.

This was an appeal, by the complainants, from a decree of the Greenbrier circuit court, in a suit in chancery therein pending, wherein Samuel McClung, Samuel B. McClintie, S. C. Beard, Andrew Beard, William B..

<p>1. "When, on motion of the defendants, the judgment "entered at rules in the clerk’s office, is set aside, and leave given the to file a special plea in thirty days, an appellate court will presume, where no hill of exceptions has been filed, that such order was made by the consent or acquiescence of the'plaintiffs.</p> <p>2. The record not disclosing with certainty whether special pleas were filed, or if filed, showing that no replications were filed thereto, and no issue joined thereon, it was error to try the cause, and the judgment entered upon the verdict must be reversed.</p>

An appeal, by tbe defendant below, from a judgment of tbe circuit court of Harrison county, rendered on tbe 12th day of October, 1870, in an action of ejectment therein pending wherein Shadrach Hurst was plaintiff and Gilbert L. Hurst was defendant. The only question passed upon here was as to the construction of a deed from the plaintiff to the defendant, and tbe estate conveyed thereby, aud what estate remained in the the grantor.

Appeal, by the complainant, from a decree of the circuit court of Greenbrier county, rendered on the 26th day of April, 1869, in a suit in chancery therein pending, wherein Henry B. Brightwell, as trustee for Sophia A. B. Hurley, wife of Reuben Hurley, ivas complainant and Samuel S. Hoover and said Reuben and Sophia AB. Hurley, were respondents. The opinion of the Court contains a sufficient statement of the facts in the case.

A supersedeas to a judgment of the circuit court of Greenbrier county, by Wallace Robinson, who, as Sheriff of said Greenbrier county, and as such, administrator of J. Marcus Alderson, deceased, was the defendant below, in an action of debt wherein Thomas G. Clay was plaintiff. The judgment was rendered on the 24th of June, 1873. The material facts sufficiently appear in the opinion of the Court.

Appeal, by the Chesapeake and Ohio Railroad Company, from a judgment of the circuit court of Kanawha county, rendered on the 16th day of June, 1873, in a proceeding in garnishment, therein pending, in favor of Samuel Strauss against tbe said Railroad Company, as debtors of M. Iiealey & Co., who were judgment debtors' of said Strauss. The material facts appear in the opinion of the Court. The Hon. Joseph Smith, judge of said circuit court, presided at the time, below.

An appeal by Othias Harman and Asa W. Thompson, from a decree of the circuit court of Wirt county, rendered on the 14th day of March, 1872, in a suit in chan-eery, therein pending, wherein William Rittenhouse and others were complainants and Othias Harman and others were respondents, all of whose names appear in the decision of the Court. The facts sufficiently appear in the opinion of Hoffman, Judge.

An appeal from a decree of the circuit court of Green-brier county. The facts are stated, at length, in the opinion of the Court. The Hon. Joseph M. McWhorter, judge of said circuit court, presided at the rendition of the decree below.

Writ of error and supersedeas to a judgment of tlie circuit court ef Kanawha county, rendered on the 26th day of May, 1873, in a suit therein pending, wherein Davis & Moore were plaintiffs, and Henry S. Walker, was defendant. The case was brought here by the defendant Walker. The only question involved in the case was as to the correctness of the decision of the court below, overruling the motion of the defendant for a continuance.

An appeal by tbe Rathbone Oil Tract Company froip a decree rendered on the 27th day of November, 1871, by the circuit court of Wirt county, in a suit in chancery therein pending, wherein J. W. Baker was complainant and said Oil Tract Company and S. P. Wells, were respondents, The facts in the suit sufficiently appear in the opinion of the Court. The Hon. George Loomis, judge of said circuit court, presided at the hearing below.

So many of the facts as is necessary to an understanding of the case appear in the opinion of the Court. The Hon. James W. Hoge judge of the Mason circuit. presided at the hearing below.

Appeal by Uriah N. Warren and, Mary Ann, his wife, from a decree of the circuit court of Greenbrier county, dismissing complainant’s bill, rendered on the 28th day of April, 1871-, in a suit in chancery therein pending, wherein said Warren and wife were complainants and Samuel A. M. Syme, Renick R. Dickson, St. Clair Johnson, Mark L. Spotts and Mrs. Leonard were respondents. The other material facts appear in the opinion of the Court.

Appeal by George Baird, Andrew Wilson, John But-terfield, Porter Smith and others, defendants, from a decree of the circuit court of Ohio county, rendered May • 7, 1873, perpetuating an injunction, theretofore granted, by. the judge of said circuit court.

Appeal, by Alstorpheus 'Werninger, from a decree of the circuit court of Harrison county, rendered on the 14th day of October, 1871, in a suit in chancery therein pending, wherein Gideon D. Camden was complainant and Alstorpheus Werninger, Lee Haymond and Luther Raymond, were respondents. The facts appear in the opinion of the Court. The Hon. Thomas W. Harrison, judge of said circuit court, presided at the hearing below.

Appeal, by B. H. Warthen, B. G. Warthen, the defendants below as partners composing the late firm of B. H. Warthen & Bro., and Stephen Iinnter, assignee of said B. H. Warthen & Bro., a firm composed, as aforesaid, from a judgment of the circuit court of Greenbrier county, in four several suits at law, against certain attached effects which belonged to said B. H. Warthen & Bro., entered ■on [the sixteenth day of October, 1872.

Writ of error and supersedeas granted on the petition of the First National Bank of Wheeling to reverse a judgment of the circuit court of Ohio county, and award a new trial, in a suit therein pending, wherein the Merchants’ National Bank of Wheeling was plaintiff, and said First Natipnal Bank of Wheeling defendant. So many of the fact's as are deemed material appear in the opinion of the Court.

Appeal, by Peter B. Righter, from a judgment of the circuit court of Harrison county, rendered on March 25, 1864, and from an order of the same court made on June 4, 1868. The plaintiffs below were James Lynch, Josiah W. Lynch, John P. Lynch, Peter J. Lynch and Washington G. Reynolds, partners trading under the firm name of J. & J. W. Lynch & Reynolds, and the defendants, Peter B. Righter, John S. Hoffman, Joseph Snider and John T. Peerce.

An appeal, by John Slack, administrator of R. M. Mai com, Charles Hedrick, administrator of L. Wilcox' and Benjamin S. Smithers, administrator of William Shrewsbury, from a decree of the circuit court of Kana-wha county, rendered on the 9th day ofNovember, 1872.

supersedeas to, a decree of the circuit court of Wood cbunty, rendered on the 26th day of March, 1873, in a suit therein pending, wherein Lois A. Leftwich was complainant and James A. Leftwich, husband of said Lois, George B. Neal, trustee in a deed of trust purporting to have been executed by said James A. and Lois Leftwich, to secure Daniel R. Neal, in a certain sum therein named, and said Daniel R. Neal,, were respondents.

Appeal, by Peter B. Lighter, from certain decrees ox-orders of the circuit court of Harrison county, entered on tbe 10th day of December, 1864, the 17th day of March, 1865, and the 4th day of June, 1868, in a suit in chancery therein pending, wherein James Lynch, Josiah W. Lynch, John P. Lynch, Peter J. Lynch and Washington G. Reynolds, partners in trade under the firm name of J. & J. W. Lynch & Reynolds, were complainants and John S. Hoffman, said Peter B. Lighter, Joseph…

An appeal, by Samuel.A. Miller and several persons who were members of tbe firm, of Ruffner, Donnally & Co., on behalf of said firm, from a decree rendered by the circuit court of Kanawba county, on the 6th day of July, 1869, in a suit in chancery therein pending, wherein said Ruffner, Donnally & Co. were complainants and Hewitt, Kercheval & Co., Hewitt, Roe & Co., J. J. Roe & Co., Humphrey, Tutt & Terry, and a large number of other persons, were respondents.

Appeal, by the plaintiff below, from a judgment of the circuit court of Pocahontas county, rendered on the 12th day of March, 1872, in a certain proceeding therein pending, wherein William P. Pucker was plaintiff, and the Board of Supervisors, of said county, were defendants. The material facts appear in the opinion of Pauli, Judge. The Hon. Joseph M. McWhorter, judge of said circuit court, presided at the trial below.

Appeal, by the defendants, from the judgment of the municipal court of the city of Wheeling, rendered on the 8th day of July, 1873, in a suit therein pending, wherein James Campbell was plaintiff and David Lynn, S. S. Lynn and John G. Lynn, partners in trade under the firm name of D. Lynn & Co., were defendants.

■ This is an appeal, operating as a supersedeas, granted by one of the judges of this Court, upon the petition of John D. Lewis, from two several decrees of the circuit court of Kanawha couDty, rendered on the 16th day oí December, 1868 and 7th day of July,-1870.

Appeal by the complainant below, Tinsley Brown, from two several decrees rendered by the circuit court of Greenbrier county, one on the 15th day of December, 1871, and the other on the 12th day of April, 1872, in a suit in chancery against Gamaliel Knapp, N. W. Noell and Phares B. Harrah respondents. The facts and statutes alluded to sufficiently appear in the opinion of the Court. The Hon. Joseph M. McWhorter, judge of said, circuit court presided- at the hearing below.

Appeal, operating as a supersedeas, granted by tbe Hon. Balpb L. Berkshire one of the judges of the late Supreme Court of Appeals of this State, upon the petition of Claudius B. Pease, from an- order and decree of the circuit court of Kanawha county, made and entered on the 2d day of April. 1872, in a suit therein pending, wherein Eli T. Tappan, was complainant and Giles Pease, respondent.

Appeal, by the complainant below, from two decrees of ihe circuit court of Roane county, rendered on the 13th and 14th of November, 1872, dissolving an injunction and dismissing a bill, in a suit then pending in said circuit court, between Edward Lewis, complainant, and John W. Spencer and N. P. Lee, respondents.

Writ of error, granted by one of the Judges of this Court, upon the petition of the Chesapeake and Ohio Railroad Company, to a judgment of tbe circuit court Fayette county, to certain proceedings bad therein under the forty-second chapter of the Code, to acquire so much land, owned by William Tyree, situate in said county, as should be necessary for the right of way, and for other purposes, under their charter, by the said Company.

Appeal, by Adam Board, from a decree of tbe circuit 'court of Jackson county, rendered on the 3d day of August, 1872, in a suit in chancery, in the nature of a foreign attachment, wherein George S. M. King was complainant and said Adam Board, Absalom Board, Sarah Board, Rachel Pringle, John H. Board, Thomas Board and John H. Riley were,respondents. The material facts sufficiently appear in the opinion of the Court. The Plon.

Appeal, with stay of proceedings, granted by the Hon. Evermont Ward, judge of tlie ninth judicial circuit, on the petition óf William A. Jones, from a decree of the circuit court of Kanawha county, rendered an the 31st day of May, 1873, in two suits therein pending, which came on to be heard together, wherein said Jones was •complainant and John S. Cunningham and Edward B. Knight, trustee in a deed of trust executed by said Jones and his wife to secure said Cunningham in the…

Appeal, by Henry G. Davis, from a decree of the circuit court of Doddridge county rendered on the 3rd day of May, 1872, in a suit therein pending, wherein Eugene Henry was complainant and said Davis, Benjamin 'Wilson, T. K. Knight and Benjamin F. Martin, respondents. The material facts appear in the opinion of Pauli, Judge. The Hon. Chapman J. Stuart, judge of said circuit court, presided at the trial and hearing below.

The material facts in tlie case sufficiently appear in the opinion of the Court. The Hon. Joseph Smith, judge of said circuit court, presided at the trial below.