INDEX. ABATEMENT OF PURCHASE MONEY AND to the 26th day of October, 1863. intestate. The PRICE. 1. See Sale of Land in Gross No. 1, and Reed v. Patterson, 263 454 2. See Practice in Chancery No. 18, and State of West Virginia was formed out of the State See Proceedings to Enforce the Lien of a Judg- ACCOUNT CURRENT-WHEN DEEMED STATED ACCOUNT. See Stated Account and Ruffner, Donnally & Co. v. Hewitt, Ker- ACCOUNT OF SALES. An account of sales rendered by a consignee to a county court, with power to appoint administra- ness. Ruffner, Donnally & Co. v. Hewitt, Ker- cheval & Co., ACKNOWLEDGMENT OF PAYMENT 1. See Deeds 5, and Ocheltree v. McClung, EF- ciaries, in certain cases. County courts were unau- ACKNOWLEDGMENT AND RECORDATION OF DEEDS. 1. See Deeds Nos. 1 and 2, and Henderson & Co. v. Alderson, 217 2. See Defective Certificates of Acknowledgment 2, and Leftwich v. Neal, 569 4. J. Marcus Alderson, who resided in the wards C. brought an action of debt in the circuit from his intestate. Ruffner, Donnally & Co. v. Hewitt, Kercheval & Co., 585 Robinson filed a plea in said extent of an agency may be implied and inferred action of non-administrator, to which a general re- from circumstances. A common mode of application was filed and issue joined.-HELD: pointment of an agent is by a written request, or That Robinson was, after his appointment, the by implication from the recognition of the principroper administrator of said decedent Alderson, pal, or from his acquiescence. and that he was properly sued as such, and that although the acts of said Malinda S. Alderson, as administratrix of said Alderson, prior to the 2. Generally, it is the right of an agent to be relaws of West Virginia being extended over and imbursed all his advances, expenses, and disburseenforced in the said county, and the appointment ments, made in the course of his agency, on acof said Robinson as administrator, will be recog- count of or for the benefit of his principal, when nized as valid generally-still whatever authority the advances, expenses and disbursements have she may have had as administratrix, as aforesaid, been properly incurred and reasonably and in ceased on the appointment of said Robinson, as good faith paid, without any default on the part administrator, if not before, although she had no of the agent. Idem, 535 notice of such appointment. 348 Clay v. Robinson, Admr, 3. If an agent has, without his own default, incurred losses or damages in the course of transactADMISSION OF DEED (VALID AS AGAINST ing the business of his agency, or in following the GRANTOR) TO RECORD-VALID AND EF- instructions of his principal, he will be entitled to FECTUAL TO PASS, WHAT ESTATE AF full compensation. TER SUCH ADMISSION, AS AGAINST WHOM. See Deeds No. 27 and Warren and Wife v. Syme, Idem, 583 4. It is, ordinarily, the duty of an agent where the business in which he is employed admits of it, 474 or requires it, to keep an account of all his transactions on behalf of his principal, not only of his payments and disbursements, but also of his receipts; and render such accounts to his principal at all reasonable times, without any suppression, 2. See Attachments-Affidavit for under Statute concealment or overcharge. and Sufficiency of Same, No. 1 and 1. See Constitutional Law Nos. 2, 3 and 4, and Ross v. Jenkins, Rittenhouse v. Harman, 281 380 Idem. 585 5. If the agent unnecessarily exceeds his com3. An affidavit made to a petition for a rehear-mission, or risks the property of his principal, he ing, by a party not served with process, is suffic-thereby renders himself responsible to his princiently certified under the Code of Virginia, ed pal, for all losses and damage, which are the natu1860, by the following words: "Subscribed and ral consequences of his act. sworn to before me this 22nd day of September, 1865," the name and official character of the certifying officer being recognized and admitted by the parties. Parker v. Clark, 467 4. See Constitutional Law Nos. 14, 15, 17 and 18, an i Lynch v. Hoffman, 553, 578 5. See Foreign Attachments in Equity, Nos. 1 and 2, and King v. Board, 701 AFFIRMATIVE FACTS ALLEGED IN A BILL IN CHANCERY, WHERE THERE IS A GENBRAL DENIAL OF SAME, TO BE PROVEDWHEN. See Practice in Chancery No. 20, and Idem, 585 Hurst v. G. L. Hurst, When filed and replication thereto and issue Warren and Wife v. Syme, 474 thereon-how original declaration shall be consid- AGENTS AND AGENCY. 1. An agency may be created by express words or acts of the principal, or it may be implied from his conduct and acquiescence. The nature and ANSWER IN CHANCERY. 54 1. As to effect of answer, and how same will be taken on hearing, in certain cases.-See Practice should stand dismissed, with costs to the defendin Chancery No. 1. and Forqueran v. Donnally, 2. See Practice in Chancery Nos. 14 and 18, Baker v. Oil Tract Company, 3. See Bill of Discovery, and Jones v. Cunningham, ANCIENT WRITINGS. Sec Evidenee No. 11 and Clay v. Robinson, Admr., ants, without prejudice to any other suit, &c.; 114 and the plaintiffs failed to make such party a deand fendant by amended bill, or otherwise, within the 454 thirty days or afterwards. And the defendants afterwards, and after the thirty days had expired 707 and before any other action was taken in the cause by the court, or any of the parties appeared in court and asked and obtained leave of the court, without objection, to file a cross bill in the cause 348 against the plaintiffs in the original bill, and, in pursuance of such leave, did file such cross bill, to which the defendants filed their answers and 1. A judgment having been entered for a larger plaintiffs and defendants afterwards took and amount than the facts agreed warranted, and, filed the depositions of various witnesses in supsubsequently, on motion of the plaintiff, in whose port of their pretensions in the original cause, and favor the error was committed, and without no- various orders and decrees were afterwards made tice, the error was corrected; the defendants, for by the court in the proceedings, on both the origiwhose benefit the correction was made, cannot, nal and cross bills, including the decree adjudicatfor that reason, appeal or obtain a reversal of the ing the principles of both causes from which the judgment. Farmers' Bank v. Willis, 2. See Prohibition No. 2, and McMillan v. Ferrell, 4. See Practice in Chancery No. 23, and APPELLATE COURT. appeal is taken as though said order of conditional 31 dismissal hai never been made, without objection being made or taken, by the court or any of the 91 parties to the cause, proceeding further in the cause, at any time, after the expiration of the said 223 thirty days: It is too late for the appellants, who were defendants below, to be heard in the appel474 late court, to object that the original cause at and and after the expiration of the thirty days from the 673 date of said order of conditional dismissal become, and and was, dismissed by virtue of such order, and 707 that all subsequent proceedings of the court in the causes, were, in cousequence thereof, irregular and inoperative or void. In such case the appel1. When "The Farmers' Bank of Virginia," by late court will ordinarily consider that the causes that name, brought suit, and the defendants made were proceeded with by the court by consent of no objection, on that account, but pleaded in bar, parties. and agreed the facts, using that name, and the Hinchman, Admr. v. Ballard, Admr, "President, Directors and Company of the Farm- 4. If, in the case above stated, the person so diers' Bank of Virginia," indiscriminately, as the rected to be made a party to the original cause, name of the same corporation, and submitted the was a necessary and proper party thereto, under case to the court, which gave judgment in favor of the circumstances above stated, the appellate court the Bank; the defendants, who appealed, cannot, will not reverse and set aside the decree of the court in this Court object, successfully, to the name in below adjudicating the principles of the cause, bewhich the suit was brought. cause of such conditional order of dismissal and Farmers' Bank v. Willis, 31 give full effect thereto; but in such case the ap2. The 7th section of chapter 16, of the acts of pellate court will ordinarily reverse the decree apthe Legislature of West Virginia, 1872-3, entitled pealed from, and direct such person to be made a "An act organizing the Supreme Court of Appeals, party, and the cause to be proceeded with, as defining its jurisdiction and powers, and prescrib- though such conditional order of dismissal had ing its manner of proceeding." does not apply, in never been made. whole, or any part thereof, to a case of prohibition, commenced in the Supreme Court of Appeals. Idem, 152 152 5. When a demurrer is filed to a bill and the court proceeds to adjudicate, and does adjudicate, Buskirk v. Judge of Circuit Court, 91 the principles of the cause, in favor of the plain3. When the court erroueously makes an order tiff, without first acting pro forma upon the dethat unless a person who is not a party to the bill, murrer, it will be considered that the court in renis so made, within thirty days from the date of the dering the decree adjudicating the principles of order, by amended bill, that the plaintiff's bill the cause considered the sufficiency of the bill, and substantially overruled the demurrer thereto, jured, the appellate court will not reverse the and this Court will not reverse the decree adjudi- judgment of the court below on account of such cating the principles of the cause, for this cause instruction. alone. Clay v. Robinson, Admr., 348 Idem, 152 12. When, apparently, two defendants, by coun6 Where the record does not show when an sel, petition for an appeal, which is allowed, and amended bill or an answer is filed, yet if the de-so appear and prosecute the appeal, though, on the cree shows the court proceeded to hear the cause hearing evidence is found in the case, tending to upon the amended bill and answer, the appellate show that one was dead before the decree appealed court will consider them properly filed. from was rendered, yet, in this Court, it appear 13. See Continuances, and Davis & Moore v. Walker, 380 447 Henderson & Co. v. Alderson, 217 ing that the decree is erroneous, and the other ap7. Notwithstanding the act of the Legislature pellant having the right to prosecute the appeal approved the 21st day of December, 1872, entitled and have the decree reversed as to both, the Court "an act regulating appeals, writs of error and su- will not, of its own motion, institute an inquiry persedeas," does not allow an appeal from an order to ascertain whether the party be living; but will of a judge of a circuit court granting an injunc- treat him as before the Court, by counsel, and retion, an appeal from such an order, pending in verse the decree, with costs to both appellants. the Supreme Court of Appeals of this State, on Rittenhouse v. Harman, the 31st day of December, 1872, and the first day of January, 1873, and not heretofore decided, is still pending in this Court, and it 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, approved January 11, 1873, entitled "An act organizing the Supreme Court of Appeals, de- and fining its jurisdiction and powers, and prescribing| its manner of proceeding," and especially under the provisions of the fourth section of the latter act. McMillan v. Ferrell, 223 14. See Practice in Chancery No. 22, and 474 15 See Practice in Appellate Court No. 8, and Dickinson, Exor., v. Lewis, 673 707 16. See Practice in Appellate Court No. 9, and 232 8. When several instructions are asked and refused, and a general exception is taken to the refusal, if all the instructions are proper and should have been given, the exception is sufficient and APPOINTMENTS CONFERRED BY CONFEDthe judgment will be reversed. Ocheltree v. McClung, 715 18. See Criminal Practice, and State v. Stewart, 731 See Deeds No. 11, and Ocheltree v. McClung, 9. When on motion of the defendants, the judgnent entered at rules, in the clerk's office, is set aside, and leave given the defendants to file a special plea in thirty days, an appellate court will presume, where no bill of exceptions has been 232 filed, that such order was made by consent or ac-APPOINTMENT OF COMMITTEES OF LUquiescence of the plaintiffs Williams, Admr. v Knights, 10. 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. Idem, See Evidence Nos. 4 and 5, and Hinchman, Admr., v. Ballard, Admr., 152 ARBITRATION AND AWARD. 1. Three persons are chosen by the vendor and 335 vendee of land to ascertain and fix the value of 11. Where an instruction is given to the jury the land, and to certify such valuation; in such by the court, at the instance of the plaintiff, case the certificate of valuation cannot be considwhich does not correctly propound the law, but it ered as more solemn, conclusive or binding upon is manifest from the record, that the defendant the parties than an award-it is but an award, could not, thereby, have been prejudiced or in- and the referees, or persons chosen, cannot, upon principle, be considered otherwise than ar-] 2. See Foreign Attachments in Equity Nos. 1 bitrators. Dickinson v. Railroad Co., and 2, and 390 King v. Board, 701 AFFECTED BY SUBSEQUENT PROCEED- See Bankruptcy Nos. 2, 3, 4, 5 and 6, and 532 2. It is, ordinarily, in equity, though perhaps ATTACHMENTS-HOW SAME, AND LIEN OF, not universally, misconduct in arbitrators chosen out of court to determine and award, as to the matter or matters referred to them, in the absence of either party in interest to the submission, his agent or attorney, without notice being previously given to such absent party, his agent or attorney, of the time and place of their proceeding to hear and determine the matter submitted, unless such absent party, not having notice, has dispensed with or waived such notice, or the like; and ATTACHMENTS OF REAL PROPERTY IN The death of a debtor whose real property in for such misconduct a court of equity may, ordi- this State has been attached in a suit in equity, and narily, set aside the award, at the instance of either proceedings therein by attachment against him and party materially interested, not having such no- his estate as a non-resident, does not dissolve the tice, who was absent. attachment or lien thereon, where the death ocIdem, 390 curs after the attachment is levied. 3. An award procured by fraud and imposition of one of the parties to the submission, will be set aside for that cause, by a court of equity, in a White v. Heavner, Sheriff, &c., 324 152 See Measure of Recovery, and Polsey & Son v. Anderson, 202: 4. Though the simple fact that one of the parties to the submission wrote the award, in the absence of the other, who was not notified of the time and place of the arbitrators proceeding to make their award, may not, of itself, be sufficient to invalidate the award, still it may be considered, unexplained, as affording just ground for suspicion and criticism. But where such party, in such case, wrote the award, and so wrote it that it is materially erroneous and deceptive, in his favor, and the by virtue of Statute and effect of, arbitrators did sign it, as written, a court of equity See Payments No. 1, and may set aside the award. As to Assignments and Trust Deeds by Banks: Farmers' Bank of Virginia Nos. 2 and 3. 2. The twenty-first section of the Bankrupt Act, of 1867, so far as the stay is concerned, applies 390 to personal final judgments against the debtor, and not to judgments against the property attached, or the proceeds of the sale thereof, when the attachment lien accrued prior to the filing of the petition in bankruptcy. Idem, ASSIGNOR-WHEN COMPETENT TO TESTIFY FOR ASSIGNEE. See Evidence Nos. 8 and 9, and White v. Heavner, Sheriff, &c., ATTACHMENTS-AFFIDAVIT FOR UNDER 3. An attachment lien, acquired regularly, withSTATUTE, AND SUFFICIENCY OF SAME. out the procurement or sufferance of an insolvent debtor, to give preference to the attaching credi 1. Under the act of the Legislature on the sub-tor over other creditors, will not be displaced by ject of attachments, passed in 1867, an affidavit virtue of the thirty-fifth or thirty-ninth sections, that the affiant "thinks" the plaintiff ought to re-by subsequent proceedings in bankruptcy, though cover the sum claimed, is not equivalent to an affi- commenced within four months after the levy of davit that he "believes" he ought to recover such the attachment. sum and is not sufficient to authorize an attachment. Idem, 532 4. Under said sections something more than pasRittenhouse v. Harman, 380 sive non-resistance in an insolvent debtor is neces |