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to be the sole heir of her deceased ch. 65, § 9, Code of West Virginia, inhusband has not a right to file a bill stead of ch. 110, § 9, Code of Virginia, in chancery against parties claiming to 1860. (p. 379.) Jones v. Fox, 20 W. be heirs of her husband, who are in Va. 370. possession of the property of her deceased husband as his heirs, and obtain from the court a decision, as to who are the true heirs of the husband, and be put into possession of her husband's land, if she establish herself to be sole heir. In such case her remedy is in a common-law court by a writ of unlawful entry or detainer or by ejectment. Jones v. Fox, 20 W. Va. 370.

Effect on Jurisdiction of Assignment of Dower.-A court of chancery would not have any jurisdiction to entertain a suit by a widow claiming to be the sole heir of her deceased husband, though on motion of the defendants as heirs of her husband under § 9, ch. 110, Code of Virginia, 1860, dower had been assigned her in the lands of her deceased husband. Jones v. Fox, 20 W. Va. 370.

Nor would the fact that such widow had, or had not, notice of such motion, alter the case. Jones v. Fox, 20 W. Va. 370.

Nor would an allegation in the bill, that the circuit court on such motion had assigned her dower by reason of a fraudulent representation of the defendants, whereby the court was induced to assign her dower, as though the defendants in the chancery suit were heirs of the deceased husband, and she was not his sole heir. Jones 2. Fox, 20 W. Va. 370.

Such assignment of dower in such case, whether with or without notice to the widow, is not an adjudication of the question, who are the heirs of the deceased. This question in any controversy between the parties subsequently will in no manner be affected by the action or judgment of the court in such proceeding. (p. 379.) Jones v. Fox, 20 W. Va. 370.

Nor would the case in any of these respects be altered if such motion or assignment of dower was made under

The court in this case declines to consider, whether if in such a case the widow accepts the dower assigned her and surrenders the possession of her late husband's real estate, except the dower land assigned her, to such persons claiming to be heirs of her husband, she is. by such acts estopped from thereafter claiming that she is the sole heir of her husband and as such entitled to all his real estate, or the effect on such estoppel, if it be one, of these acts of hers being done under a misapprehension of facts or of the law. Or whether their possession under such circumstances is adversary to her. These questions can not properly be considered in such a chancery suit, which ought to be dismissed, but only properly arises in the suit at common law, if one should be instituted. Jones v. Fox, 20 W. Va. 370. See generally, the title ESTOPPEL.

Effect of Defendant's Seeking Similar Relief by Cross Bill.-If in a chancery suit by a widow claiming to be the sole heir of her deceased husband against parties claiming to be the heirs of her husband, who are in possession of his property as his heirs to obtain a decision as to who are the true heirs, one of the defendants claims, that he is the sole heir of the plaintiff's husband and in his answer asks as affirmative relief, that he be so adjudged by the court and his title and possession of the land quieted, the court should not determine the question, whether he is such sole heir or grant the relief he seeks, but should dismiss his answer. so far as it is intended as a cross bill, a court of equity having no jurisdiction to consider and decide the case presented by such answer. Jones v. Fox, 20 W. Va. 370.

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deed to them recited this as a fact and was signed not only by the party named as such heir but by the brothers and sisters of the person named and stated to be dead. Postlewaite v. Wise, 17

stances be proved by the recital of a
deed. The plaintiffs by deed from the
heir, P., deceased, bearing date June
10, 1856, duly recorded in recorder's
office of the county in which the iana
lies. Upon a demurrer to the evidence W. Va. 1.

by he defendant the circuit court A recital in a deed of partition that properly held, that a party, under a person died, and that the parties to whom the plaintiff claimed the land, the deed are his heirs, is not evidence was the heir of a certain other part of these facts against strangers. Warand that such party was dead when the ren v. Syme, 7 W. Va. 474.

DESCRIBE.-Described with Convenient Certainty.-In Gorman v. Steed, 1 W. Va. 14, it is said: "Chapter 134, § 1, of Code of 1860, requires the premises to be described in the summons of unlawful entry or detainer. And ch. 135, § 8, on ejectment, requires that the premises claimed shall be described with convenient certainty. Here, then, one chapter requires the premises to be described, and the other requires them to be described with convenient certainty. The different phraseology employed does not indicate greater certainty of description in the one case, than in the other, for, to describe a thing or place, and to describe it with convenient certainty, would seem to mean the same." See also, Board of Education v. Crawford, 14 W. Va. 803.

Description in Deeds.

See the title BOUNDARIES, vol. 2, p. 597.

DESCRIPTIO PERSONÆ.—See the titles AGENCY, vol. 1, p. 256; EXECUTORS AND ADMINISTRATORS; GUARDIAN AND WARD; TRUSTS AND TRUSTEES.

In Carr v. Branch, 85 Va. 605, 8 S. E. 476, it is said: "An agent or executor who covenants in his own name, and yet describes himself as agent or executor, is personally liable, for the obvious reason that the one has no principal to bind, and the other substitutes himself for his principal.' Duvall v. Craig, 2 Wheat. 45. And the same rule applies to the contracts of guardians, trustees, and all other persons acting en autre droit; the addition to the signature of the word 'agent,' 'executor,' 'trustee,' etc., being regarded as a mere descriptio personæ, unless, indeed, it appear that the party so signing his name was recognized as contracting in his representative character when the contract was made, in which case he will not be personally bound. Taylor v. Davis, 110 U. S. 330; Metcalf v. Williams, 104 U. S. 93; Staples v. Staples, ante, p. 76; 1 Pars. Cont. 128." See also, Crim v. England, 46 W. Va. 480, 33 S. E. 311; Vance v. Kirk, 29 W. Va. 344, 1 S. E. 717; Belvin v. French, 84 Va. 81, 3 S. E. 891.

DESCRIPTIVE CALL.-In Stockton v. Morris, 39 W. Va. 432, 19 S. E. 533, it is said: "Entries generally call for some prominent, notorious object, directing attention to the neighborhood of the land (and this is called the 'general' or descriptive call), and contain a reference to objects which more specially describe or locate the land entered (and these are denominated the 'particular' or 'locative' call)." See also, the title PUBLIC LANDS.

Desertion.

As ground of divorce, see the title DIVORCE.

DESIGNEDLY.-Upon the use of terms in an indictment for false pretenses, the court, in State v. Halida, 28 W. Va. 503, 504, said: "The pretense could not be knowingly false without at the same time being designedly false.

The word 'knowingly,' I think, is at least the equivalent of the words 'designedly and unlawfully,' and therefore, the latter being sufficient without the former, the former must be sufficient without the latter." See also, the title FALSE PRETENSES AND CHEATS.

DESIRE. See the title WILLS. And see Crump v. Redd, 6 Gratt. 375; Roneys v. Roneys, 7 Leigh 17.

A decree overruling a demurrer by the defendant to the plaintiff's bill uses these words, "and the defendant not asking further time to answer said bill." Held, these words, as construed by the context, are equivalent to the words, "and the defendant not desiring further time," etc., and therefore operated as a waiver of a rule upon the defendant to answer the bill. Mitchell v. Evans, 29 W. Va. 569, 2 S. E. 84.

DESTROY.-See State v. Porter, 25 W. Va. 689.

Detainer.

See the title FORCIBLE ENTRY AND DETAINER.

Detectives.

Detective permitting prisoner to escape, as accessory after the fact, see the title ACCOMPLICES AND ACCESSORIES, vol. 1, p. 74. Confessions made to private detectives, see the title CONFESSIONS, vol. 3, p. 83. See also, the title DIVORCE.

DETERMINED.-In Field v. Marye, 83 Va. 882, 3 S. E. 710, it is said: "Mr. Webster defines 'prescribed' thus: 'To set down authoritatively; to order; tc direct; to dictate; to appoint;' while he defines determines, thus: "To fix permanently; to settle; to adjust.' 'To set down authoritatively,' and 'to fix permanently, or to settle,' do not admit of a wide distinction."

Detinet.

See the title DETINUE AND REPLEVIN.

DETINUE AND REPLEVIN.

I. Detinue, 636.

A. Nature and Scope of Remedy, 636.

B. For What Detinue Lies, 636.

C. Right to Maintain the Action, 637.

1. Certainty of Things Demanded, 637.

2. Title to and Possession of Property, 637.

a. In General, 637.

b. Title under Void Execution Sale, 638.

c. Special Property, 638.

d. Committee of Lunatic, 638.

e. Husband and Wife, 638.

f. Parent and Child, 638.

g. Curator and Receiver, 638.

h. Bailees, 639.

i. Mortgagees, 639.

j. Trustee and Cestui Que Trust, 639.
k. Buyer and Seller, 640.

1. Executors and Administrators, 640.

m. Lienors, 640.

n. Five Years' Adverse Possession, 640.

o. Possession of Defendant under Bill of Sale, 641. p. Effect of Parting with Possession, 641.

D. Defenses, 641.

1. Death or Destruction of Property, 641.

2. Want of Title or Possession, 641.

3. Divestiture of Property, 641.

4. In Action against Executors, 641.

E. The Pleadings, 642.

1. The Declaration, 642.

a. In General, 642.

b. Title and Possession, 642.

c. Description of Property, 642.
d. Value, 642.

e. Demand, 643.

f. Nature of the Property, 643.

2. The Plea, 643.

a. Non Detinet, 643.

(1) In General, 643.

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b. Against Executors and Administrators, 647.

2. Conclusiveness and Effect, 647.

3. Scire Facias, 647.

K. Writ of Distringas, 647.

L. The Bond, 648.

M. Equity Jurisdiction, 649.

N. Evidence, 649.

1. Weight and Sufficiency, 649.

2. Burden of Proof, 650.

O. Survival of Action, 650.

II. Replevin, 650.

A. Detinue and Replevin Contrasted, 650.

B. Status of the Remedy, 651.

C. Right to Maintain the Action, 651.

1. In General, 651.

2. Unlawful Detainer, 651.

3. Distress for Rent, 651.

D. Retorno Habendo, 652.

E. The Pleadings, 652.

1. The Declaration, 652.

2. Avowry, 652.

3. The Plea, 652.

F. Set-Off, 652.

G. The Bond, 653

H. Appeal-Amount in Controversy, 653.

CROSS REFERENCES.

See the titles ACTIONS, vol. 1, p. 122; TROVER AND CONVERSION.

I. Detinue.

A. NATURE AND SCOPE OF REMEDY.

Nature. Detinue is, in one particular, an anomolous action; it is difficult to decide whether it ought to be classed amongst actions ex contractu or ex delicto. The right to join detinue with

debt, and the ability to use detinue to recover goods in pursuance of the terms of a bailment to the defendant, seem to afford grounds for reckoning it an action ex contractu; whilst the fact that it lies wherever the chatte in question is illegally withheld, notwithstanding there be no contract, but the possession of the defendant was acquired exclusively by tort, marks it as an action ex delicto. 4 Min. Inst. (2d Ed.) 484; Catlett v. Russell, 6 Leigh 344; Robinson v. Woodford, 37 W. Va. 377, 16 S. E. 602.

Scope and Status. So far from the action of detinue having gone out of use in these states, it has been in long and constant use, and by liberal construction has been advanced and promoted as a remedy for the recovery of the possession of all tangible personal property capable of being described

and identified with such reasonable degree of certainty that it may be known, and the possession delivered. And the usefulness and remedial scope of the action of detinue has been still further immediate possession by means of a extended by giving the plaintiff the fendant may within three days have the statutory replevy bond, and the de

property returned to him, on giving a 1904, ch. 138; W. Va. Code, 1899, ch. Va. Code, proper forthcoming bond. 102. Robinson v. Woodford, 37 W. Va. 377, 16 S. E. 602.

B. FOR WHAT DETINUE LIES.

In General.-The action of detinue is employed to recover in specie personal chattels from one in possession, who unlawfully detains them from the real owner, or from one having a special property therein, with damages for the detention. Sinclair . Young, 100 Va. 284, 40 S. E. 907.

The action of detinue lies where a party claims the specific recovery of goods and chattels or deeds and writings detained from him. Steph. Pl. p. 15, approved in McFadden . Crawford, 36 W. Va. 671, 15 S. E. 408. Sez also, Arthur v. Ingels, 34 W. Va. 639,

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