Jan'y Term,

Bradford vs. The State.

1870.

To the ruling of the court below overruling the plea in abatement, the defendant excepted, and the case is brought to this court on a writ of error.

Hon. Chapman J. Stuart, judge of the circuit court of Wetzel county, presided on the trial of the case.

Davenport for the plaintiff in error.

Attorney-General Caldwell for the State.

MAXWELL, J. Bradford was indicted in the circuit court of Wetzel county, for selling at retail spirituous liquors without a license, and was afterwards convicted of the of fence charged.

After the indictment was found, and before the defendant pleaded not guilty, he filed a plea in abatement, alleging that Taylor, one of the grand jurors who found the indictment, was not, at the time the indictment was found, a registered voter of the county of Wetzel, and for that reason was not a qualified grand juror. There was a demurrer to the plea, and demurrer sustained and the plea held bad by the court, and this is the cause of error assigned in this court by Bradford.

By the fifth section of the act of November, 1863, p. 109, acts of 1863, a qualification theretofore unknown to the laws of the State, was prescribed for grand jurors. It was, that they should be persons of known loyalty to the State and the United States, and who had not done certain acts specified in said section. The concluding sentence of said section provides: "No plea in abatement to any indictment shall be allowed for any objection to any grand juror arising under this section." It is insisted, however, that this section is superseded or repealed by the act of February 19th, 1867, p. 44, acts of 1867, entitled, "An act in relation to juries."

There are two answers to this position. The first is, that the act of February 19th, 1867, cannot be construed to prescribe a qualification for grand jurors. The next is, that if it could be construed to apply to the qualifications of grand

Jan'y Term,

Bradford vs. The State.

1870.

jurors, the qualifications are of the same character as the qualifications prescribed by the act of 1863, and the acts being in pari materia, would have to be construed together as one act. B. and O. Railroad Company v. Wilson, 2 W. Va. Rep., 528.

There is nothing in the act of 1867, if it be held to apply to grand jurors, inconsistent with the concluding sentence of the 5th section of the act of 1863, as before quoted.

The demurrer to the plea in abatement was, therefore, properly sustained, and the judgment complained of will have to be affirmed, with damages and costs to the defendant in error.

The other Judges concurred.

JUDGMENT AFFIRMED.

INDEX.

273 See Principal and Agent and

a party defendant is described in the See Non Est Factum and

on his own motion and affidavit should See Equity Pleading, No. 3, and

have the declaration amended by in-

serting the proper name.

Handley & Cary v. Ludington
and McClintic,

Bee Specific Execution, No. 3, and 514 See Mandamus and

ARBITRAMENT.

quidated damages which could not be
set off against the demand of the plain-
tiff in this action.

McSmithee, adm'r, v. Feumster, 673
ASSIGNEE.

An assignee of an interest in a por-
tion of the purchase money, is a proper

See a case of submission to, in action
of assumpsit, under that title, and 368
Where a case has been submitted to
arbitration under a rule of court, and
the order is subsequently set aside on
motion of one of the parties, and it ap-
pears on the face of the record that all
the parties were present and no objec-party to a bill for a specific perform
tion was made, although not made by ance. Davis et al. v. Henry, 571
consent, the appellate court must pre-
sume the order, so setting aside the
submission, was properly made.
Pendleton, use, v. Barton,

ARRAY OF JURORS.

See Jurors and

ARREST OF JUDGMENT.

See Indictment, No. 3, and
ASSESSMENT OF TAXES.

See Injunctions, No. 4, and

ASSIGNMENT.

496

ASSUMPSIT.

See Limitations (Statute of), as to
time excluded in actions of as-
sumpsit, and

180
S. brings an action of assumpsit
173 against D. The declaration contains
the common counts only; the bill of
particulars aggregates a certain sum.
D. pleads non assumpsit, and issue is
755 joined; no account of set-off is filed by
D. The case is submitted, under a rule
of court, to arbitrament, and an award
is made in favor of D. for a sum of mo-
499 ney. S. objects to a judgment, on a rule,
for the amount of the award in favor of
D., because it is not within the submis-
sion. HELD:

1. Assignment of certificate of de-
posit issued within the confederate
lines, if made within federal lines, is
a new contract, and is valid, if for val-
uable consideration.

Morrison et al. v. Lovell, 346
See Due Diligence and
346
See Payments and

648

2. Assumpsit is brought against
McS. to collect amount of a note as-
signed to F. by McS., on the ground

No specifications of set-off having
been filed with the plea, the plaintiff's
demand in his declaration and bill of
particulars are the only matters in dis-
pute arising in the case, and was the
only matter submitted to arbitration,
and an award in favor of D. is errone-
ous Swann, adın'r, v. Deem, 368

ATTACHMENTS.

into court and dispute the validity of
a prior attachment on mere motion.
They must file their petition in accor-
dance with sec. 25, chap. 151, Code of
Virginia. The same provision is found
in section 24, chap. 104, Code of West
Virginia, 1869.

that the obligor was insolvent when 1. Parties who claim to be subse
the note fell due. McS. alleges thatquent attaching creditors cannot come
the assignment was without recourse,
and proved on the trial that there was
a written contract, which was lost; that
F. was to attend a certain sale of real
estate belonging to the obligor, which
sale was to take place under a decree
of the circuit court, and make his mo-
ney, but the witness could not remem-
ber the exact terms of the contract.
MCS.then offered to prove the value of
the land, and that F. did not attend
the sale. HELD:

Ludington et al. v. Hall, 130
See Equity Pleading, No. 4, and 296
See Affidavit and
305

2. The personal representatives of a
deceased debtor are not, as such, the
That if the contract had showed that debtors of the creditors of their testa-
the assignment was without recourse, tor or intestate, within the sense of the
then the contents thereof, it being lost, statute. They are not liable in the debit,
would have been admissible under the but in the detinet only. The personal
general issue. But the right of action estate is in their hands to be adminis
on the contract could only be for unli-tered according to law, and is not there