Ogle v. Adams

Citations

• 12 W. Va. 213
• 1877 W. Va. LEXIS 11

Syllabus

<p>1. If a court of equity in ordering an issue of fact to be tried by jury, irregularly give the defendant the affirmative of the issue, and the issue is found by the jury in favor of the plaintiff, the Appellate Court will not, on appeal by the defendant, reverse the decree directing the issue and subsequent decrees rendered in the cause, based upon the verdict.of the jury, for such irregularity in the decree directing the issue, when it plainly sees that the appellant could not have been prejudiced thereby.</p> <p>2. When in a cause in equity, the plaintiff by evidence in the cause has made out a prima facie case of the death of her husband from his absence and from not being heard from for twelve or fifteen years prior to the bringing of her suit, and the defendant, by the deposition of a witness or witnesses, filed in the cause, undertakes to prove that such witness or witnesses heard from the plaintiff’s absent husband by letter or letters, written by him from another and adjoining State, and from the depositions of the witness or witnesses themselves, and other circumstances, the Appellate Court sees that there is such doubt of the truth of the testimony of such witness or witnesses, or as to the genuineness or falsity of such letters as that the conscience apd judgment of the chancellor might well be in doubt as to the truth or falsity of the testimony of such witness or witnesses, or as to the genuineness or falsity of such letters, the Appellate Court will not in such a case reverse an order of the court directing an issue to be tried at the bar of the court, to ascertain and determine whether the plaintiff’s husband (J. 0.) was alive at any time within seven years next before the bringing of the suit.</p> <p>3 When there is a bill filed for partition of lands, and for rents and profits thereof by one tenant in common against another, and the statute of limitations of five years is not pleaded as to rents and profits before the court, before or at the time