supposed intention by adding or supplying | sessment book itself would be admissible. words." We are asked here to insert words There is no assignment of error for refusal to give Sarah Ryan an absolute estate, of the court to admit certificates of the clerk whereas the will gives her only a life-estate, as to assessment of property of John Ryan on a conjecture or hypothesis that such in 1872, and non-assessment in 1873, unless was his intention. This court adopted, in there is an unintentional error in drawing Graham v. Graham, several points bearing the assignment in using the name Sarah inon this case. Point 14 is here quoted: stead of John, which is probable. Passing, "When implications are allowed, they must then, upon this action of the court, the same be such as are necessary, or at least highly objection applies to them, they being in the probable, and not merely possible. In con- same form of certificates stated in reference struing a will conjecture must not be taken to the certificate as to Sarah Ryan. Befor implication. Necessary implication sides, it is questionable whether the book means so strong a probability of intention itself would have been admissible as to John that an intention contrary to that imputed Ryan's assessment. Moreover, these certo the testator cannot be supposed. The tificates show that in 1872 John Ryan was whole will, taken together, must produce assessed with $775, in 1873 nothing; and the conviction that the testator's intention that Sarah Ryan was assessed in 1873 with was to create the estate raised by implica- $845. Had they been introduced, they would tion." A clearly expressed intention in one have tended to show that John Ryan about part of a will is not to yield to a doubtful the time of his death (which was in 1873) construction in another part. Bell v. Hum- had personal property greater in amount phrey, 8 W. Va. 21. Clear and unambiguous than the verdict, and that in the next year provisions in a will expressly made can- Sarah Ryan was charged with a greater not be controlled by mere inference and amount than the verdict. So I cannot see argument from general and ambiguous how the rejection of the evidence hurt the provisions in other parts of a will. Ray- defendant. All her property at his death field v. Gaines, 17 Grat. 1. Sarah Ryan was, in law, his, for there is no proof suffitook only a life-estate in said personalty.cient to show that he ever consented to any Therefore, upon her death, a right of ac- of her property, so called, being held as seption existed against her estate for the arate estate to bind even himself. Lanham same, or the value of it, as she and v. Lanham, 30 W. Va. 222, 4 S. E. Rep. 273. her representative converted it. Madden Another assignment of error is as to the rev. Madden, supra; Dunbar v. Woodcock, fusal of the court to set aside the verdict be10 Leigh, 628, Cross v. Cross, 4 Grat. 263; cause of misbehavior of a juror, John Flint. Moorman v. Smoot, 28 Grat. 80; Tabb v. Affidavits of two jurors state that Flint, Cabell, 17 Grat. 172; Pettyjohn v. Wood-after the jury retired to consider the case, roof, 77 Va. 507. So far, then, as concerns stated in their presence that he knew John the contention that the court erred in refus- Ryan, and that he had more personal proping a new trial because Sarah Ryan had an erty than he, (Flint,) and he (Flint) was absolute estate in this personalty, it is un-assessed with $800. "It is settled in this tenable. The defendant's complaint that the court refused to allow him to give in evidence the will of Sarah Ryan is not well founded. This will gave her grandchildren (children of said Olive and Hannah) one dollar each, and to other persons various legacies. I cannot see that it is relevant to the matters involved in this cause. If the As to the error assigned for the admission personalty did not belong to her estate, if of Hickman's evidence. After testifying she only had a life-estate, her will could not that Stephen Ratliff was dead, he was asked pass it; and if she had an absolute estate, to state whether shortly after John Ryan's the plaintiff could not recover from her rep-death he heard Ratliff say anything about resentative anything on account of it, and this regardless of her will. state as a general rule, with but few, if any, exceptions, that the testimony of jurors will not be received to impeach their verdict." Probst v. Braeunlich, 24 W Va. 356. I simply refer to this case, and add the remark that there is no reason for making this instance an exception to that rule. owing John Ryan any money at the time of his (Ryan's) death, and he stated that As to the assignment of error in rejecting shortly after Ryan's death he heard Ratliff the personal property books for 1872 and say he owed John Ryan $100, and Mrs. Ryan 1873, showing with what property Sarah had called on him for it, and said if he did Ryan was assessed, no assessment for 1872, not pay it soon, she would sue him and make but only as to 1873, was offered as to her. him pay; that Ratliff died, and he (HickThe book was not offered, but only a cer- man) was his administrator, and Mrs. Ryan tificate from the clerk of the county court never called on him for payment. Plaintiff "that the following is an abstract showing had right to show a debt due to John Ryan. the kind and amount of personal property A debt may be shown in favor of one man with which Sarah Ryan is charged on the against another by the latter's admission property books of said county for the year of its existence. John Ryan's administra1873," then giving the assessments under the tor, in a suit against Ratliff, could show several heads. No statute is cited to au- Ratliff's written admission or promissory thorize the introduction of such certificate note, or prove his oral admission of a debt. or abstract. If the act found in chapter As an item or a step in the establishment 130, Code 1887, § 5a, subsec. 1, is relied on, of his demand, the plaintiff had right to esit applies only to certificates of non-entry tablish the same point, namely, the existof land, and requires them to be filed, and ence of such debt from Ratliff to Ryan. notice of the intention to use them to be Does the difference of parties preclude him given 20 days before the term. The personal from using the same evidence which could property book was itself the primary evi- be used in the suit supposed? A declaradence. I do not see, however, that the as-tion, though made by a stranger to the SNYDER, P., and ENGLISH, J., concurred. GREEN, J., absent. suit, may sometimes be used when the fact | ment of the circuit court is affirmed, with which it tends to establish is relevant to the damages and costs to the appellee. case, and the declaration is against the interest of the party making it, and he dead. Men do not falsely admit debts against themselves; and it is this presumption which induces the law to admit such declaration. 1 Greenl. Ev. § 147. The statement of this witness that as administrator MULLINAX v. WAYBRIGHT. Sept. 14, 1889.) JUSTICE OF THE PEACE-CONTINUANCE. In an action before a justice, if the defendant, on the return-day of the summons, makes oath that he has a just defense to the action, he is of right entitled to a continuance of the case for seven days; but, when he fails to make such oath, and simply moves for a continuance because he is without counsel and the absence of a witness, he is not entitled to a continuance unless he shows that he has used due diligence to secure the attendance of such witness. (Syllabus by the Court.) Error to circuit court, Pendleton county. G. A. Blakemore, for plaintiff in error. E. A. Cunningham, for defendant in error. SNYDER, P. This action was commenced of Ratliff he had never been called on for (Supreme Court of Appeals of West Virginia. payment of the debt is not objectionable; but the statement that Ratliff told him that Sarah Ryan had demanded payment of the debt, and threatened to sue him, is improper. It may have prejudiced the defendant as proving a circumstance tending to show that Mrs. Ryan had collected the debt. Taking the whole case, should the verdict be set aside for that cause? The evidence is clear that when John Ryan died he owned a considerable personal property, though no inventory of it was made. Shortly after his death his widow sold $500 of it. Shortly before his death he had some money. He and Sarah Ryan kept their money in two separate "pokes." A witness counted that in her poke at $200, but did not count that in his. His house consists of a front build-on March 17, 1887, before a justice of Pendleing of four rooms, and a back building, all ton county by Henry Mullinax against pretty well furnished, there being seven James B. Waybright upon an account for beds, a set of chairs, cooking-stove, metal $147. On the return-day of the summons, for kitchen, a cupboard filled with dishes, which was March 26, 1887, the plaintiff and and a vast amount of bed-clothing, each one defendant were both present, and the declaiming a portion. Another witness says fendant moved for a continuance of the there were 72 quilts and blankets. Ryan case, "on the grounds of being without sold some cattle the year he died. He had counsel, and the absence of a witness." three or four horses, three cows and left The justice having examined the defendant some cattle on the place. None of the fur- on oath, and thus ascertained that he had niture was included in the sale of the $500 made no effort to obtain counsel, and had worth made by the widow. A witness, not had his witness summoned, he overruled Golden, proves that Ryan had this note on the said motion, and ordered the trial of Ratliff and a debt on William Bumgardner. the case. The defendant then stated orally, He speaks in his will of having money and by way of plea, his denial of the plaintiff's bonds. Mrs. Ryan's appraisement bill is whole claim. Then, upon the demand of quite long, containing a great deal of fur- the plaintiff, the case was tried by a jury, niture and other property, and notes, and which found a verdict in favor of the plaintiff foots up over $1,900. She carried on busi- for $125, on which the justice entered judgness some after his death, probably made ment. Upon the petition of the defendant something. On the whole, outside this $100 the judge of the circuit court awarded a writ debt on Ratliff, and outside of anything of certiorari to said judgment. The case that could be allowed for chattels which having been thus removed to said circuit would be consumed in the use, if any, there court, and duly docketed therein, the court, was clearly ample and abundant to more after examining the transcript of the record, than equal the amount of the verdict. and considering the errors assigned in the Clearly so. This improper evidence could petition, was of opinion that there was only tend to induce the jury to include this no error in the judgment of the justice, and $100 debt on Ratliff in the property charge- dismissed said petition and writ, and gave able to Mrs. Ryan, and thus we say it judgment against the petitioner for costs. might have entered into the verdict; but it The defendant then obtained this writ of touched only the amount of the verdict, and error. Two grounds of error are assigned when we know by another witness that and relied on by the plaintiff in error to rethis debt existed, that she took charge of verse the judgments of the justice and of the the whole estate, and that Ratliff, adminis- circuit court. The first is that the justice trator, did not pay it, and further, espe- erred in overruling the motion for a concially, that she was chargeable with an tinuance of the case, and the second is that amount of other property clearly sufficient the jury tried the case when no case had been to equal this verdict, it would seem improp- made for it to try. There is nothing in the er to set it aside for that cause. Hall v. record to justify or sustain either of these Lyons, 29 W. Va. 410, 1 S. E. Rep. 582; Kerr assignments. It is claimed that under secv. Lunsford, 32 W. Va. -, 8 S. E. Rep. 493; tion 58 of chapter 50, Code 1887, the defendant More v. City of Huntington, 32 W. Va. was entitled to a continuance as of right. 8 S. E. Rep. 512; Taylor v. Railroad Co., 32 This is true only when he makes oath that W. Va., post, -, (decided this term ;) 4 he has a just defense to the action. The deMinor, Inst. 874. From what has been said fendant made no such oath in this case, but it follows that there is no error in refusing he simply asked for a continuance under secto set aside the verdict because contrary to tion 60 of chapter 50 of the Code, which reor without sufficient evidence. The judg-quires him to show cause to entitle him to a to appear on the first day of the next term of said circuit court to show cause, if any they can, why said award should not be entered of record as the judgment of said court. The defendants, Toy & Clawges, filed their answer to said summons, in which they set up the facts herein before stated, and insisted that, by reason of the notice to revoke the authority of the arbito writing and signed, the said award was a nullity, and no judgment could be entered thereon. The court held that the facts alleged in said answer were insufficient, and on September 9, 1887, it entered judgment in favor of the plaintiffs against the defendants upon said award for the said sum of $309.25, and costs. To this judgment the defendants, Toy & Clawges, obtained this writ of error. continuance. The defendant wholly failed to show any ground for a continuance, and therefore the justice did not err in ruling him to trial. Upon the second assignment the record shows that the plaintiff filed his account with the justice, and that the defendant, by way of plea, denied the whole of said claim. This claim and denial raised an issue, which the jury tried. This was a sufficiently formal proceeding in a jus-trators before the award had been reduced tice's court. Todd v. Gates, 20 W. Va. 464; Poole v. Dilworth, 26 W. Va. 583. For these reasons I am of opinion that there was no error in the judgment of the justice. The circuit court, instead of dismissing the petition and writ of certiorari, should have affirmed the judgment of the justice; but, as this irregularity of the court did not in any degree prejudice the plaintiff in error, the judgment of the circuit court is also affirmed. The only error assigned is that the court GREEN, ENGLISH, and BRANNON, JJ., con- award, and the only ground alleged to suserred in entering judgment upon said curred. STIRINGER et al. v. Toy et al. (Supreme Court of Appeals of West Virginia. fore they had reduced the same to writing. Sept. 14, 1889.) ARBITRATION AND AWard. 1. An agreement to submit a controversy to ar bitrators, which provides that the award shall be entered as the judgment of the court, cannot, under our statute, (chapter 108, Code,) be revoked by any party without the leave of such court. 2. An award, made under a submission to two arbitrators and an umpire to be selected by them, is valid, although it is signed by only one arbitrator and the umpire. (Syllabus by the Court.) Error to circuit court, Tucker county. W. B. Maxwell, for plaintiffs in error. B. Parsons, for defendants in error. A. SNYDER, P. On April 1, 1886, the two firms of Stiringer & Wotring and Toy & Clawges entered into a written agreement, in which, among other matters, they agreed to set aside a certain judgment for $300, and costs, recovered by Stiringer & Wotring against Toy & Clawges before a justice, and to submit the matters out of which said judgment had arisen "to the arbitrament and award of two arbitrators and an umpire, each party to choose one arbitrator, and the arbitrators so chosen to choose the umpire, and the award of said arbitrators to be entered up as the judgment of the circuit court of Tucker county, and be final." In pursuance of this agreement the two arbitrators were chosen by the parties, and they selected an umpire. The parties and the arbitrators and umpire met and heard the evidence, and on December 30, 1886, the arbitrators determined upon the sum of $309.25 as the amount due to Stiringer & Wotring, and agreed to announce the same on the next morning, but on the next morning, before the award was reduced to writing and signed, Toy & Clawges caused a notice in writing to be served upon the arbitrators to revoke their authority to act as arbitrators, and thereafter, on the same day, the said award was reduced to writing, and signed by one arbitrator and the umpire and delivered to the parties. Afterwards a summons was served on Toy & Clawges, requiring them * * * tain said assignment is that the power of It is suggested that the award is void because it is not signed by all the arbitrators. The submission was to two arbitrators and an umpire. This mode of submission necessarily implies an authority to two to make an award. To require the award to be signed by all would involve a manifest absurdity. The office of an umpire is to decide between the arbitrators in case they disagree. If the object of the submission was to have the concurrence of the two arbitrators chosen by the parties, then the provision for an umpire was a useless formality. Battey v. Button, 13 Johns. 187. I am clearly of opinion that there is no error in the action and judgment of the court, and that the same should be affirmed. GREEN, ENGLISH, and BRANNON, JJ., concurred. STEWART V. BALTIMORE & O. R. Co. (Supreme Court of Appeals of West Virginia. Sept. 14, 1889.) JUSTICES OF THE PEACE-DAMAGES. in an action for a wrong before a justice, the amount 1. In determining the question of jurisdiction claimed in the summons, and not the damage shown by the testimony, must control. J. A. Hutchinson, for plaintiff in error. U. N. Arnett and J. A. Haggerty, for de fendant in error. 2. Where the plaintiff, in his complaint, | ror testified that the injury for which suit claims from the defendant damages for the de- was brought caused damages to him to struction of 500 rails and about one mile of board the amount of $500, therefore the justice did fence, some wood upon his land, and a lot of grow- not have jurisdiction. Now, our Code, c. ing timber, which, he alleges, was caused by the negligence of the defendant in permitting fire to 50, § 10, provides that "a justice shall have emit from its locomotive and spread over his land, jurisdiction of actions for trespass on real he will not be permitted to prove general damages estate, or damages to the same, or to rights done to his farm, but he will be confined to the pertaining thereto, if the damages claimed specific items of damage alleged in his complaint. do not exceed three hundred dollars, and (Syllabus by the Court.) the cause of action arose in his county.' What is meant by the damages claimed?" and where do we look to see what is claimed? In answering these questions it is not necessary to wait until the trial has commenced, and the evidence, or any portion of it, has been introduced; the allegata in some form must precede the probata, and in ascertaining what has been alleged in a suit of this character before a justice, we must look to the summons by which the action is commenced, and if it is found that in the summons a greater amount of damages than $300 is claimed, then the motion to dismiss would prevail. In the case of State v. Lambert, 24 W. Va. 399, which was an action before a justice to recover damages for the breach of an official bond, this court held that "the amount of damages alleged and claimed in the summons, and not the penalty of such bond, must be considered as determining the jurisdiction of the justice." In the case under consideration only $300 was claimed in the summons, and the plaintiff could not go beyond that amount in his recovery, no matter what might be the proof. I do not therefore think that the court below erred in overruling the motion of the plaintiff in error to dismiss the case on the ground that the cause was not within the jurisdiction of a justice. ENGLISH, J. This was a writ of error from a judgment of the circuit court of Marion county upon an appeal from the judgment of a justice of said county. The defendant in error, in his complaint, before said justice, alleged that on the - day of ——, 1885, in the said county of Marion, the plaintiff in error suffered and permitted fire to emit and drop from its locomotive, and wrongfully and negligently suffered and permitted it to spread to and over the land of the said defendant in error, situate in said county, and to burn and destroy about 500 rails and about one mile of rail and board fence and some wood upon said land, of the value of $125, and burned and destroyed a lot of growing timber and other forest and rail timber, of the value of $175, upon said land, the property and timber of said defendant in error, and he claimed that he was damaged to the amount of $300 in the manner therein stated, and in the summons which was issued by said justice in said action, dated on the 23d day of August, 1886, the said justice required the plaintiff in error to answer the complaint of Jesse Stewart in a civil action for the recovery of money due as damages for a wrong, in The third ground of error assigned by the which the plaintiff would demand judg-plaintiff in error is as to the mode of estiment for $300, exclusive of interest and mating damages permitted by the circuit costs, and on the 8th day of October, 1886, court, as shown by bill of exceptions No. 2, a judgment was rendered by said justice from which it appears that the plaintiff, by against the plaintiff in error for the sum of his own testimony before the jury, tended $250, with interest from that date, and to prove that the damages done to his costs. From this judgment an appeal was whole farm of 135 acres by the burning in taken to the circuit court of said county, the complaint mentioned was $500, because where said action was tried before a jury said evidence was misleading and erroneof six, who found a verdict in favor of the ous, and was not admissible under the defendant in error for $270, which verdict complaint, the damage being thereby limthe plaintiff in error moved the court to set ited to "rails, rail and board fence," and aside, and grant it a new trial, which mo- a lot of growing timber, and other forest tion was overruled, and a judgment ren- and rail timber, and the burning mentioned dered upon said verdict, from which judg-in bill of exceptions No. 6 being confined to ment the plaintiff in error applied for and obtained a writ of error to this court. To the rulings of the circuit court upon the trial of said appeal six separate bills of exception were taken by the plaintiff in error. By the first of said bills of exceptions it appears that the defendant in error testified that he had sustained damages to the amount of $500 by reason of the matters complained of in said suit, and thereupon the plaintiff in error moved the court to dismiss the case, on the ground that the action was brought before a justice of the peace for a cause not within a justice's jurisdiction, which motion was overruled, and the action of the court in overruling said motion is assigned as the second error, and is earnestly insisted on by the attorney for the plaintiff in error in his belief, he claiming that, because the defendant in er about eight acres, upon which was standing the timber trees, young trees, rails, and fire-wood which were claimed to have been injured and destroyed by the fire. The question raised by this exception is whether, in this action, the damage done to the residue of said farm, which was about 127 acres, 125 acres of which were cleared, could be considered as an element in ascertaining the damage claimed by burning over the 8 acres. The rule of damages generally adopted in cases of negligent injury to real property is to allow the difference between the value of the plaintiff's premises before the injury happened and the value immediately after the injury, taking into the account only the damages which had resulted from the defendant's acts." See Chase v. Railroad Co., 24 Barb. 273; McGuire v. Grant, 25 N. J. Law, 356. "The 66 66 66 rule as stated is not, however, universally | aggregate amount of damage sustained by applied, and it is held that if the thing de- plaintiff when he frankly admitted his enstroyed, although it is a part of the realty, tire ignorance as to the items of damage has a value which can be accurately meas- which composed said aggregate, which he ured and ascertained without reference to must have known before being allowed to the soil in which it stands, or out of which express his opinion as to the amount of it grows, the recovery must be for the value damage before the jury. As to the instrucof the thing thus destroyed, and not for tions Nos. 1 and 3, which were asked for by the difference in the value of the land be- the plaintiff in error and refused by the fore and after such destruction." See Whit- court below, which read as follows: No. beck v. Railroad Co., 36 Barb. 644; Richard- 1. "The court instructs the jury that in orson v. Northrup, 66 Barb. 85; Stanton v. der to determine the amount of damages Pritchard, 4 Hun, 266; Winchester v. Craig, to which the plaintiff is entitled they should 33 Mich. 205; Railroad Co. v. Ward, 16 IIl. compare the value of the land as it was 522. In the case of Whitbeck v. Railroad immediately before the injury with its Co., supra, it is held: "The rule of dam- value after the injury, and this comparison ages in an action for the destruction of should be made in the light of all the evisuch trees is not the extent to which the dence given upon the question of the value value of the land is diminished by such de- of the land before, and its value after, the struction;" and in Pierce on Railroads, p. | injury." No. 3. So much of the injury 446, we find: "The measure of damages for as consisted in the destruction or injury property wholly destroyed by fire is the done to standing trees is an injury done market value thereof," (Burke v. Railroad to the real estate, and as to that part of Co., 7 Heisk. 451, 465;) or, if only injured the injury the damages must be assessed as or partly destroyed, the difference between for an injury to real estate, and the jury the market value before and after the in- should not consider what the standing timjury," (Bevier v. Canal Co., 13 Hun, 254; At- ber might have been worth in case it had kinson v. Railroad Co., 63 Mo. 367.) "The been converted into personal property." market value is the test even, it has been I do not think the court below erred in held, in the case of fruit trees or other prop- refusing to give said instructions to the erty attached to the realty, the value of jury, as they would have a tendency to which can be measured independently." bring into the controversy an element of See Pierce, R. R. 446. From these authori-damage which was never asserted or ties it is apparent that the true rule in as- claimed by the plaintiff below, and they do certaining the measure of damages as to not correctly propound the law pertaining the timber injured and destroyed by fire to the case. The court, as we think, havwould be to find the difference between the ing ruled erroneously in allowing the plainmarket value of the timber where it stood tiff, as set forth in bill of exceptions No. 2, before the burning and afterwards, al- to state what damage had been done to though it may, as it often does, constitute his entire farm of 135 acres by burning over a very considerable element in the value of the 8 acres mentioned in bill of excepthe land. When the destruction of the tim- tions No. 6, (part of said 135-acre tract,) ber is total, the market value thereof would and by allowing the witness John W. Rowmeasure the damage, and, when the de- land, who testified before the jury, to fix struction is partial, it would be the market the damage done the farm by said fire at value as it stood when the fire occurred, $450 or $500, and that, too, when he clearly reduced by the value of the timber in its shows that he did not know what timber then condition, and the same rule should trees were destroyed by the fire, and had apply with reference to the fire-wood, rails, never made any estimate of their number, and fencing. and did not know the number of rails or amount of fire-wood injured or destroyed by fire, and as the cause must be reversed for these errors, and remanded to the circuit court of Marion county, where a new trial must be awarded, it is neither necessary nor proper to consider the questions raised by the motion to set aside the verdict on the ground that it is contrary to the evidence. For the reasons herein set forth, the judgment complained of is reversed, the verdict of the jury set aside, and the case remanded for a new trial. Having arrived at this conclusion as to the proper mode of determining the damage sustained by the defendant in error, I am of opinion that the court below erred in allowing the plaintiff to testify, as indicated in bill of exceptions No. 2, as to the damage done to his whole farm of 135 acres by the burning of said timber, fire-wood, and fences. SNYDER, P., and BRANNON, J., concurred. GREEN, J., absent. RATLIFF V. COUNTY COURT OF WAYNE As to the question propounded to the witness John W. Rowland, as indicated by his answer set forth in bill of exceptions No. 3, that he considered the damage done to the farm by said fire, it appears to me that the court below erred in allowing said testimony to go to the jury for two reasons-First, because he estimates the damage done to the entire farm, something that is neither claimed in the summons or the complaint; second, because he stated (Supreme Court of Appeals of West Virginia. that he had never made any estimate of the number of timber trees destroyed or injured by the fire in May, 1885, mentioned in the complaint, and did not know the quantity of rails or growing timber or fire-wood destroyed or injured by said fire, and consequently was giving an opinion as to the Sept. 14, 1889.) ASSUMPSIT-COUNTY ORDERS. An action of assumpsit will not lie against a county court, upon an order issued by a county court upon the sheriff of a county, in favor of the owner of such order. (Syllabus by the Court.) |