been fully tried and adjudicated, and could not be again inquired into by original action; and on this plea issue was joined, and on the 9th day of April, 1888, the trial proceeded before E. A. THOMAS, another justice of said county, and on the 10th day of April, 1888, the said E. A.THOMAS, after hearing the evidence and arguments of counsel, rendered a judgment against the defendant for $99.87, from which judgment the defendant appealed to the circuit court of said county, and on the 4th day of August, 1888, said appeal was heard by the court in lieu of a jury, and the court, having heard all the evidence adduced on the plea of former adjudication, filed by defendant before said justice, and maturely considered the same, found for the defendant, and reversed the judgment of said justice, with costs, to which judgment of the court the plaintiffs excepted, and tendered a bill of exceptions, which was signed, sealed, and saved to them, from which bill of exceptions it appears that it was shown on the trial of said appeal that the parties were the same in both of said actions before said justices, and that the evidence offered on the trial of the first-mentioned action was, in substance, the same as that offered on the trial of the last-mentioned civil action, and that the evidence given in both of said actions tended to prove the same facts, and the same cause of action. From the judgment of said circuit court the plaintiffs applied for and obtained a writ of error to this court.

The sole question presented for consideration in this case is whether the judgment rendered by BEUNOS AYERS, justice, on the 6th day of February, 1888, was final and conclusive upon the parties thereto until reversed or set aside in some of the modes known to the law, or should the language used in the order rendering said judgment, "It is therefore considered by me that this action be and is dismissed, without prejudice to a new suit," be construed as being sufficient to prevent said judgment and dismissal from being pleaded as an estoppel to a new suit for the same cause of action; or, in other words, that by reason of this clause the plaintiffs would be at liberty to bring another suit for the same cause of action. The bill of exceptions shows that the parties were the same, and the cause of action the same, in both suits. In the case of Manufacturing Co. v. Coal Co., 10 W. Va. 284, referred to by the plaintiffs in their brief, this court held that "a fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or any other court. It is res judicata. But to make it res judicata it must have been directly and not collaterally in issue in the former suit, and there decided. It is not necessary that precisely the same parties were plaintiffs and defendants in the two suits, provided the same subject in controversy between two or more of the parties plaintiffs and defendants to the two suits, respectively, has been in the former suit directly in issue and decided." The bill of exceptions in this case clearly shows that the same parties were before the justice as plaintiffs, and the same party was defendant in both

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cases, and that the evidence given by the plaintiffs in both of said actions tended to prove the same facts and the same cause of action. These facts were directly, not collaterally, in issue in both of these cases; but counsel for the plaintiff in error contends that there was no decision of the first action before the justice upon its merits. Referring, however, to the language of the order, we find the justice, in rendering his judgment, says: "This day, having fully considered the proofs and allegations of both parties, I am of opinion that the execution of said written contract mentioned in said summons as of March 1, 1883, is not proved as to the said defendant, John H. Riley. It is therefore considered by me that this action be and is dismissed, without prejudice to a new suit, giving the defendant a judgment for costs." This order surely shows that the justice, after hearing the evidence and arguments of counsel, held that the plaintiffs failed to prove the contract sued on, and therefore he dismissed the suit. It further shows that he fully considered the proof and allegations of both parties. What more was required to constitute a hearing of the case on its merits? In the case of Wandling v. Straw, 25 W. Va. 692, this court held that "a judgment upon the merits of the case is a bar or estoppel against a prosecution of a second action upon the same demand, and is a finality to the claim or demand in controversy, and concludes parties, and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim, but also any other admissible matter which might have been used for that purpose. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground what

ever.

The case under consideration was not dismissed for defect of pleadings, or want of proper parties, or a misconception of the form of proceeding, or for want of jurisdiction, or upon any other ground which did not go to the merits of the action, but after a full hearing of the case upon the proofs and allegations of both parties. The action of the justice in this case in dismissing it without prejudice to a new suit can be regarded in no other light than allowing the plaintiffs to suffer a nonsuit, after the parties had presented their proofs, and they had been fully considered by the court in lieu of a jury. Under the rules of practice a party will not be allowed to suffer a nonsuit after the retirement of the jury; and, by analogy, it should not be allowed after the matters of difference have been decided by the court in lieu of a jury. Herman on Estoppel and Res Judicata (volume 1, p. 296) says: "Thus, a nonsuit ordered by a justice must be regarded, after a trial on the merits as a judgment for the defendant, and consequently a bar in any other litigation between the same parties, [in regard to the same subject-matter,] even though the order was made with the consent of the plaintiff;" and it is in accordance with reason and propriety that it should be so considered. If it were otherwise, a justice,

gal, or objectionable. The order of the court, when the jury is to assemble forthwith, would seem to be the only venire facias required.

The second error assigned is that the venue was not proved. That the alleged crime was committed within the jurisdiction of the court was a material fact, in order to convict, and should have been proved as charged. See Hoover v. State, 1 W. Va. 336. For want of such proof, the judgment of the circuit court must be re

STATE V. MILLS.

(Supreme Court of Appeals of West Virginia. Jan. 30, 1890.)

CRIMINAL LAW-VENUE-SUMMONING JURY.

1. Section 14 of chapter 116 of the Code authorizes the circuit court, in the proper exercise of a legal discretion, to summon a panel of the requisite number of jurors from by-standers.

2. It is error for the circuit court to refuse to set aside a verdict and grant a new trial, in a felony case, when the state fails to prove at the trial that the alleged offense was committed within the jurisdiction of the court.

(Syllabus by the Court.)

Error to circuit court, Raleigh county. French & French, for plaintiff in error. Atty. Gen. Caldwell, for the State.

LUCAS, J. This case comes before this court on a writ of error from Raleigh county circuit court to a judgment rendered therein at its April term, 1889. The prisoner had been indicted for the murder of one George R. McKinney, who was shot and killed at the house of one James A. Mitcham; and the jury found the prisoner not guilty of murder, but guilty of voluntary manslaughter. A motion in arrest of judgment, and for a new trial, was made, and overruled by the court, which thereupon proceeded to sentence the prisoner to the penitentiary for the period of two years. A bill of exceptions was filed which sets out the evidence in full, and also included two affidavits of after-discovered testimony.

The first assignment of error is because the jury by which the prisoner was tried was summoned from the by-standers, and without any other venire facias than the order of the court, entered of record. Chapter 116 of the Code prescribes the manner of electing, summoning, and challenging jurors, and makes no distinction in the method to be pursued between civil and criminal cases, except in the number of challenges. Section 14 of that chapter provides as follows: "Nothing contained in the preceding sections shall prevent any court, in term-time, from requiring other jurors to be drawn in like manner, or requiring other jurors, whether so drawn or not, to be summoned, whenever it shall be found necessary, for the convenient dispatch of business, in which case the jurors so summoned shall be required to attend on such days as the court shall direct." The power thus conferred on the circuit court should be exercised with due precaution, in the discretion of the court; but, when so exercised, such action is not ille

trial. This evidence was no doubt accidentally omitted, although perhaps easily accessible. Reversals for causes not readily appreciated by the popular intelligence have a tendency to lower the public estimate of the administration of the criminal law. An enactment requiring a rigid scrutiny of the order-book and notes of testimony by the court, in criminal cases, before submission to the jury, might have a salutary effect in preventing oversights. It is not necessary to notice the remaining assignments of errors, and to comment upon the force and effect of the evidence would be manifestly improper. The judgment rendered by the said circuit court on the 26th day of April, 1889, must be reversed and annulled, and the verdict of the jury set aside, and a new trial awarded.

SNYDER, P., and ENGLISH and BRANNON, JJ., concurred.

LIVESAY V. DUNN. (Supreme Court of Appeals of West Virginia. Jan. 30, 1890.)

JUDGMENTS OF JUSTICES-ACTIONS ON-LIMITA

TIONS.

Action on a judgment rendered by a justice. Sections 10, 11, c. 139, Code, are applicable to judg ments rendered by a justice, so far as to provide that upon such a judgment, on which no execution within two years from the date of its rendition has issued, an action may be brought at any time within ten years after the date of the judgment; but, if such action be against a personal representative of a decedent, it shall be brought within five years from the qualification of such representative. Handy v. Smith, 30 W. Va. 195, 3 S. E. Rep. 604. (Syllabus by the Court.)

J. W. Davis, for plaintiff in error. J. W. Arbuckle and J. A. Preston, for defendant in error.

LUCAS, J. On writ of error from the circuit court of Greenbrier county. On the 7th of April, 1884, the plaintiff, J. J. Livesay, recovered a judgment against the defendant, J. R. Dunn, in a justice's court, for $281.38, and, no execution having issued thereon, the plaintiff brought an action on the judgment before the same justice, on the 26th day of May, 1888. The justice decided the case against the plaintiff, and dismissed his action. On appeal to the circuit court, that court affirmed the judg ment of the justice in favor of the defendant, upon the ground (no other defense being tendered) that the judgment of April 7, 1884, was barred by the statute of limitations, for the reason that "no execution had issued thereon within three years from the date of its rendition." The question before us is whether this court should sus

tain or reverse the action of the circuit court.

Chapter 50 of the Code treats "of the powers, duties, and liabilities of justices, and the proceedings in civil suits, and in the trial of offenses of which justices have jurisdiction." The general prescriptions of the jurisdiction of the justice includes (see section 8) "all civil actions for the recovery of money or the possession of property,' provided the amount does not exceed $300, exclusive of interest and costs. This section obviously authorizes actions upon judgments as well as upon simple contracts. Were there any doubt on this subject, it would be dispelled by section 51, which says: "If the plaintiff's demand in the action be upon judgment or contract," etc. Now, we find that chapter 50 nowhere provides any limitation of the time in which actions for the recovery of money may be brought before a justice. The inevitable conclusion, therefore, is that the subsequent chapters of the Code on the limitations of actions are general in their character, and are intended to apply to actions before justices as well as before circuit courts. Thus the most casual examination of chapter 104 on the "limitation of personal actions" (see Code 1887, p. 711) will demonstrate that all actions before justices, unless otherwise provided, are governed by the limitations prescribed by sections 6 and 7 of that chapter on notes, bonds, awards, and simple contracts. And so, when we take up chapter 139, which provides "the limitation of proceedings on judgments," we find that, except where expressly otherwise limited, it necessarily applies to all judgments, whether before a justice or the circuit court or county court in a proper case. Section 10 of this chapter (139) provides: "And an action, suit, or scire facias may be brought upon a judgment on which no execution issued within the said two years, * at any time within ten years next after the date of the judgment." Code 1887, p. 866, § 10. As all the other provisions in reference to limiting actions for money apply to the jurisdiction of a justice, it is quite clear that this section 10, and also 11, of this chapter, (139,) were intended to fix the standard of limitation by lapse of time, when the action is before a justice on a judgment. It is admitted that chapter 50 fixes no such limitation of time as to actions on judgments before a justice. If, therefore, chapter 139 does not apply, there is a casus omissus, and section 12, c. 104, would apply. This section fixes the "limitation of actions not specifically provided for at five years." This period not having elapsed in this case, the judgment of the circuit court would still have to be reversed.

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obtained thereon, the new lien attaches (when docketed) to realty, and may be enforced in chancery for and during a period of 10 years; but, when, beyond said period, the creditor has permitted his judgment to remain dormant, the remedy being gone at law, equity, which follows the law, will not interfere to enforce the judgment. This is all that the leading case of Werdenbaugh v. Reid, 20 W. Va. 600, decides, and it is difficult to see what light its adjudication casts upon the case now before us. The judgment of the circuit court rendered June 28, 1889, must be reversed, and judgment entered for the plaintiff.

SNYDER, P., and ENGLISH and BRANNON, JJ., concurred.

CLARK'S COVE GUANO Co. v. APPLING. (Supreme Court of Appeals of West Virginia. Jan. 30, 1890.)

SET-OFF-UNLIQUIDATED DAMAGES-RECOUPMENT. 1. Unliquidated damages cannot be the subject of a set-off.

2. Recoupment of damages by a defendant cannot be allowed unless the right thereto grow out of the same transaction as that on which the plaintiff's case is based.

(Syllabus by the Court.)

Error to circuit court, Greenbrier county. J. W. Harris, for plaintiff in error. Watts & Ashby, for defendant in error.

BRANNON, J. The Clark's Cove Guano Company brought an action, before a justice of Greenbrier countv, against R. C. Appling, upon a promissory note dated August 26, 1887, given by Appling to said plaintiff for $172.25, payable October 1, 1887. The defendant pleaded payment, and filed an account of set-off for $345. The justice rendered a judgment against the plaintiff for defendant's costs; and upon appeal to the circuit court there was a verdict by a jury finding for plaintiff $172.25 as of October 1, 1887, subject to a set-off of $172.25 in favor of defendant as of same date, and the circuit court overruling a motion of the plaintiff for a new trial, rendered judgment that the defendant recover of the plaintiff, and its surety in appeal-bond, his costs in both courts. The plaintiff sued out this writ of error.

The debt of the plaintiff is established by the note. The only question in the case is whether the defendant is entitled to the set-off which he claims. His demand under this head is to be determined on the following facts: He had been agent of the plaintiff for the sale of fertilizers, and, on settlement of his account for the season of 1886-87, was indebted to the plaintiff $172.25, and for it gave the note aforesaid. The plaintiff appointed Appling its agent for the

not be enforced against realty after the right of the creditor to issue execution has expired, therefore a magistrate's judgment cannot be revived or sued upon after the lapse of the three years within which execution thereon might issue. This conclusion, it will be observed, is a very apparent, or transparent, non sequitur. If a judgment has been revived by scire facias, or another judgment, in a proper action,

a writing accepted by him, which provided that the fertilizers should be shipped to him, in such quantities as the company might approve, for sale on commission, for the company account, and the same should be subject to its order at any time until sold. The defendant agreed to keep a correct account of all sales, remit the proceeds of all cash sales as soon as collected, and close all time sales by notes of pur

chasers, and forward such notes by November 1, 1887. In case the agent could not send notes, he was to give his own notes to complete settlement, if the company required it. The payment of the commissions fixed by the contract should be made when its terms should be fully complied with by the agent; and the agent guarantied payment of sales made by him, and he agreed to keep all goods protected from weather and from loss, waste, or injury, until sold and delivered to purchasers. The defendant's account for $345 is for fertilizers which he contracted to deliver to his subagents, except $12 for a small quantity he sold to Bruffy; and those subagents were to sell and receive half the commissions which Appling was to receive. Some of these subagents reported to him that they had made sales. The company failed to furnish such fertilizers to him or his subagents, and Appling stated in his evidence that, at a good deal of trouble, he had to supply said subagents from other sources; that his commissions would have netted him three dollars per ton. He stated that the arrangements with said subagents had been made, for the most part, before the execution of said note, and that when he delivered the note to one Sams, who was plaintiff's agent, he informed him of what he had done, and Sams told him it was all right, and to go on and make all the sales he could. The authority of said Sams, or its extent, is not shown. We are of the opinion that the claim of the defendant cannot be allowed as a set-off, because it is unliquidated. His claim is that he was damnified by the failure of the company to furnish him the fertilizers to be by him sold, and thus defeated him of his commissions, and put him to trouble and expense in procuring such fertilizers elsewhere to meet his engagements. It is only a demand for damages for breach of the contract. cannot claim a specific amount as for commissions on sales; for no fertilizers were delivered to him, and no sales of the plaintiff's fertilizers were made. As for any trouble or expense incident to procuring elsewhere the fertilizers which Appling agreed to deliver to subagents, the evidence fixes no amount, and the claim is in its nature uncertain, and undefined as to its amount. The mere fact that Appling might be entitled to recover something, in an action for damages for breach of the contract, does not entitle him to a set-off; for a set-off must be a debt, not unliquidated damages. 5 Rob. Pr. 964; Wat. SetOff, 333; 7 Wait, Act. & Def. 481. As, for reasons just stated, we think such alleged damages cannot be allowed as a set-off, this claim is not cognizable in this suit; and we are not to be understood as indicating any opinion as to whether he could or could not recover such damages in another action.

He

The defendant's claim cannot be sustained under the law of recoupment because his demand for damages for the company's failure to perform the contract grows out of the contract of agency for the season of 1887-88, whereas the plaintiff's demand rests on the note, and that was given under a prior agency for a for

mer season, the terms of which we know nothing of, and closed that matter entirely. The two transactions are separate and distinct, and therefore the principle of recoupment does not apply. The right to recoupment must grow out of the same transaction on which the plaintiff's claim is founded. Wat. Set-Off, §§ 475, 476; Logie v. Black, 24 W. Va. 1. The judgment of the circuit court is reversed, with costs to appellant; the verdict of the jury is set aside, and a new trial awarded, and the cause is remanded to the said circuit court for such trial.

SNYDER, P., and ENGLISH and LUCAS, JJ., concurred.

DUNN'S EX'RS V. RENICK et al. (Supreme Court of Appeals of West Virginia. Jan. 31, 1890.)

INTEREST ON LEGACIES-POWERS OF EXECUTORS— RENTS-TAXES.

1. Where a legacy is given to a trustee for the support of the family of one of the testator's children, and made payable out of the proceeds of the sale of real estate, such legacy is to bear interest from the death of the testator.

2. Where a will gives to the executors a naked power to sell real estate, neither the title nor the right to the possession passes to the executors, and they are not chargeable for the failure to rent the same until the sale can be made; and if the heirs permit such real estate to be returned delinquent for the non-payment of taxes, and the executors pay said taxes to prevent the loss of the land, they will be entitled, as against the residuary legatees, to a portion of the proceeds of said real es tate to credit for the taxes so paid.

3. Where a testator directs his executors to sell a certain farm, and out of the proceeds to pay. first, the debts of one of his sons on which another of his sons is surety, the executors cannot pay any such debt which before payment becomes barred by the statute of limitations, when the statute is relied on by the debtors.

(Syllabus by the Court.)

Appeal from circuit court, Greenbrier county.

J. W. Arbuckle and E. B. Knight, for appellants. J. W. Davis, for appellant J. J. Livesay. R. F. Dennis and H. A. Holt, for appellees.

SNYDER, P. Suit in equity brought in February, 1888, in the circuit court of Greenbrier county, by Mark L. Sports and John A. Preston, executors of John W. Dunn, deceased, against Lizzie T. Renick and others, to construe the will of said Dunn, and for other purposes. The said Dunn died in October, 1883, and his will was duly probated in said county in November, 1883, at which time the executors duly qualified. There is no controversy in respect to any of the provisions of the will except the eighth item, which is as follows: "Item 8th. I direct that my executors shall, at such time and in such manner as they may judge will promote such sale for the best price, under and with the advice and counsel of my sons H. E. Dunn and John R. Dunn, make sale of my Kanawha lands, West Virginia, and the same may be sold under such direction and advice in the whole or in parcels as may seen at the time best and most advisable; and I direct my executors, out of the first proceeds

arising from such sale, to pay off any indebtedness of my son Henry C. Dunn upon which my son John R. Dunn is his security, not exceeding in the aggregate the sum of $3,00 or thereabouts.-my object in this devise being to provide for the payment of the debts of Henry C. Dunn upon which his brother John R. Dunn may be bound as his surety, and thereby relieve said John R. Dunn from such burden of liability; and, secondly, out of such Kanawha land fund my executors shall pay $7,000 to Sallie P. Dunn, the wife of my son Henry C. Dunn, who shall hold the same in trust for the support, maintenance, and comfort of the family of said Henry C. Dunn and Sallie P. Dunn, and the education of their children; and upon the death of the said Henry C. Dunn and Sallie P. Dunn any sum or sums remaining from such fund shall go to and be equally divided between children begotten of their marriage, or the survivors of such children,-my purpose being in this devise to provide that there shall be paid on account of my son Henry C. Dunn, and for the purposes set out and expressed in this item of my will, the sum of ten thousand dolars ($10,000) in the aggregate: first, such sum, say about $3,000, as will be sufficient to pay off any indebtedness of said Henry C. Dunn upon which John R. Dunn is security, and then, after such indebtedness shall be discharged and paid off, then the residue of said $10,000 shall be paid by my executors, say $7,000, to the said Sallie P. Dunn, wife of Henry C. Dunn, for the uses, etc., set out in this (8th) item of my will; and it shall and may be lawful for the said Sallie P. Dunn, with the advice and consent of her friends, to invest any portion or the whole of such fund so paid to her in real estate, to be held by her in trust for the same purpose, and to rest at the death of herself and her husband in their children, in like manner and form as is herein provided for the personal fund." By the tenth item it is provided that, after the payment of the $10,000 according to the eighth item, the executors are to pay $735 to Kate V. McNeel, and then divide the residue of the estate into four equal parts, and pay one of said parts to Lizzie T. Renick, one to Kate V. McNeel, one to John R. Dunn, and one to Sallie P. Dunn, the wife of Henry C. Dunn; the said Lizzie T. Renick, Kate V. McNeel, John R. Dunn, and Henry C. Dunn being the only children and heirs at law of the testator. The executors are expressly authorized to convey all the real estate they may sell under the provisions of the will, and the testator requests that no security | shall be required of them as his executors.

The cause was referred to a commissioner to report a settlement of the account of the executors, the amount of the debts of Henry C. Dunn for which John R. Dunn is security, and any other matter required by any party. The commissioner made his report, showing that the estate was indebted to the executors a balance of $711.83 as of January 10, 1888, and that the debts of Henry C. Dunn for which John R. Dunn is surety amount, as of November 5, 1888, to $2,076.05, including a judgment in favor of Jesse J. Livesay amounting to $360.10. Under the general provisions of

this reference, the commissioner made the following special statements: At the request of Jesse J. Livesay he stated that in October, 1876, the said Livesay recovered a judgment for $621 against Henry C. and John R. Dunn on a joint note in which the former was principal and the latter his surety. This judgment the commissioner reported as barred by the statute of limitations, and disallowed it. And at the request of other parties he reported that the rental value of the Kanawha farm since the death of the testator was $1,200 per year, and that said farm has been for the past 10 years or more, and still is, occupied by Henry C. Dunn and family without the payment of rent, or any contract for such payment; also that said farm was returned delinquent for the non-payment of the taxes thereon for the years 1884, 1885, and 1886, and that to save the farm from sale for said taxes the executors paid the same, amounting to $773.13 and this sum the commissioner credited to the executors against the estate. Jesse J. Livesay excepted to the report, because the commissioner refused to allow his said judgment of $621. Henry C. and John R. Dunn and others excepted to the allowance of either of the said judgments for $360.10 and $621 in favor of said Livesay, on the ground that each of them is barred by the statute of limitations. And John R. Dunn and Kate V. McNeel except to the report because it allows the executors credit for taxes paid on the Kanawha farm, and does not set off the rents of said farm against the interest on the legacy of Sallie P. Dunn. On May 2, 1888, the court entered a decree in which it decided and adjudged that, according to the true construction of the will of John R. Dunn, the legacy of $10,000 in favor of Sallie P. Dunn bears interest from the death of the testator; and, all the children and legatees of the testator having by their pleadings in the cause insisted upon a speedy sale of the Kanawha farm, the court in said decree directed the executors to sell the same at public auction. Under this decree the executors offered the farm for sale at two different times and places, but failed to make a sale on the first occasion for want of bidders, and on the second it was bid off by John R. Dunn for himself, Lizzie T. Renick, and Kate V. McNeel at the price of $16,000, but they failed to pay any money or comply with the terms of the sale. On November 17, 1888, the court entered a decree by which it overruled all the exceptions to the commissioner's report, except that one relating to the judgment in favor of Livesay for $360.10, as to which it reserved its decision to await a decision in another action then pending to determine the validity of said judgment, and, subject to this reservation, it in all respects confirmed the said report; and by the consent of the purchasers of the Kanawha farm the sale was set aside, and the executors ordered to resell it at either private or public sale, with the proviso that, if they failed to effect a sale by March 15, 1889, then they should rent it for one year from that time. From these decrees the defendants John R. Dunn, Lizzie T. Renick, and Kate V. McNeel have appealed.

The appellants contend that the court