life estate in said farm the object and purpose of the execution of the deed of trust was satisfied as far as that particular farm was concerned, and the title of the trustee became extinct, there being no further active trust as to said farm, unless it would be to take charge of the proceeds of the sale of the life estate therein, and there would be no responsibility on that account unless it was passed to the hands of the trustee by the said Brillhart.

The authorities cited by the appallant are based, for the most part, on spendthrift trusts and trusts created for the benefit of third parties. It is clear that Brillhart was intending to empower Angle to manage his farms and attend to his business generally because of his own physical ability and solely for his own benefit. It is not alleged there was any mental incapacity nor tnat he was overreached in any manner by LeFevre in making the purchase from him of his life estate in the farm. There is no error in the decree of the circuit court and it is therefore affirmed.

Affirmed.

1.

2.

: 3.

CHARLESTON.

BUCK v. NEWBERRY.

Submitted January 18, 1901-Decided April 22, 1904.

TRESPASS-Excepted Land.

In an action of trespass for cutting trees, and the deed of the plaintiff excepts certain tracts within the outside boundary of the land, the plaintiff must show that the trees cut were not on the excepted land. (p. 683).

TRESPASS-Limitation.

In an action of trespass for cutting trees, under a plea of the statute of limitations, the defendant must show the date of such trespass, and where part of the cutting of trees was more, and part less, than five years before suit, he must show what part is barred by the statute. (p. 683).

NEW TRIAL.

Rarely can the Supreme Court set aside a verdict dependent on weight of evidence, and approved by the circuit judge. The

Code of 1899, chapter 131, section 9, does not, even if it could do so under the Constitution, direct the courts as to what effect they shall give evidence upon a motion for a new trial. (p. 683).

Error to Circuit Court, Wyoming County.

Action by Frank Buck against Herman Newberry. Judgment for defendant, and plaintiff brings error.

Affirmed.

CAMPBELL, HOLT & CAMPBELL, H. K. SHUMATE, and J. W. MCCREERY, for plaintiff in error.

DOUGLASS & MCGRATH, for defendant in error.

BRANNON, JUDGE:

Frank Buck brought an action of trespass quare clausum fregit against Harman Newberry, in the circuit court of Wyoming county, for breaking and entering and cutting trees upon a close of Buck containing sixty-three thousand acres, part of a tract of four hundred and eighty thousand acres of land granted by Virginia to Robert Morris, 23 d March, 1795. A deed from Phillip A. Trimble to Buck, under which Buck claimed, reserves from the sixty-three thousand acre boundary four different tracts, which had been previously conveyed to other persons, aggregating fourteen thousand acres. Newberry pleaded the general issue of not guilty and the statute of limitations. A jury having found for the defendant, the court overruled a motion of Buck for a new trial based on the claim that the finding was contrary to the evidence, and gave judgment for the defendant, and Buck brought the case here.

The case involves only questions of fact under a large amount of oral evidence. Is the place where the trees were cut within the Morris grant? Is that place within or without the four tracts excepted in the deed from Trimble to Buck? Did the defendant cut the timber? Was the cutting within five years before the suit? These are the questions. No actual possession being shown, it is admitted that to recover Buck had to show title to the ground on which the timber was cut, and to do this he had to show that the Morris grant covered it. This was a jury question. It depended on oral evidence of surveys, corner

trees and other corners, water courses, ridges and other circumstances. The evidence to locate the survey, and especially as to a certain line on which the controversy hinged, was not clear, but easily admitted of two opinions. We cannot overrule the jury and the circuit court under this head.

There was no adequate evidence to show that the timber cut was not upon the land excepted in the deed from Trimble to Buck. The burden was on Buck to show that the cutting was on his land, and as thousands of acres within the bounds of his deed were never conveyed to him, he must show that the timber was not on those excepted lands. Stockton v. Morris, 39 W. Va. 432. The cases given on the two hearings of that case will sustain this position.

As to limitation: The evidence shows that some of the cutting was barred, some not. The burden was on the defendant to prove the time of the trespass under this plea, and it was on him to show what part was barred. But this, except as a legal proposition arising on the record, is immaterial, as the verdict is beyond our reach for reasons above stated. We cannot act as a jury. Again and again has this Court said, that where the case turns on questions of fact on oral evidence, the jury being the judges, almost uncontrollably, of its weight and effect, we should scarcely ever reverse a verdict. In State v. Sullivan, decided at this term, this subject is discussed, and it is held that where there is some evidence, evidence worthy to be considered, fairly bearing with some weight upon the matter involved, appreciably operative to sustain a verdict, so as to make the case turn on its weight and effect, the verdict rightly ought to stand. Why does the Constitution give the jury trial, if this be not so? It gives it to both sides. When the Supreme Court interferes, simply because its judges, if of the jury, would have found the fact otherwise, it is only an act of arbitrary power against the plain meaning of the Constitution. I insist that when there has been a fair trial of fact by a jury, and the verdict is approved by the judge presiding, the opinion of that judge, who witnesses the trial, ought to be highly regarded, is almost conclusive and final, and rarely can be reversed. Smith v. Parkersburg Association, 48 W. Va. 232; Sigler v. Beebe, 44 Id. 587. As stated in Johnson v. Burns, 39 W. Va. p. 669, the code, ch. 131, sec. 9, only causes the evidence, not the ultimate facts merely, to be certi

fied, so that the appellate court may see the evidence, and that its effect to prove facts shall not be left finally to the trial judge; but the Legislature did not design a subversion and revolution as to the time-honored rules upon the treatment of verdicts and evidence in appellate courts; did not design to give the evidence a new force or effect; did not design to overthrow the weight of verdicts. As is said in the Johnson Case, the Legislature could not add new force to evidence, or affect verdicts under it; for that would be the exercise of judicial function, militating against the Constitution, which vests that function in the judiciary. The Legislature cannot trench upon the effect of a verdict. We must not give the statute such a construction. Before it came the rule was that the trial court certified only the facts which it thought were proven by the evidence, and not the evidence in detail; but the statute was intended to dispense with the absoluteness of the judge's opinion and bring before the appellate court the whole evidence, not merely the facts proven by the evidence according to the circuit judge's opinion, and thus present the whole evidence for the consideration of the appellate court. For these reasons we affirm the judgment.

Affirmed.

1.

2.

CHARLESTON.

HALL V. STAUNTON.

Submitted April 21, 1901-Decided April 22, 1904.,

MANDAMUS.

The extraordinary writ of mandamus will never be issued in any case where it is unnecessary, or where, if used, it would prove unavailing, fruitless and nugatory. The court will not compel the doing of a vain thing. A mere abtsract right, unattended by any substantial benefit to the party asking mandamus, will not be enforced by the writ. (p. 686).

INSPECTION OF PAPERS IN CLERK'S OFFICE.

Petition of Addison Hall for writ of mandamus to E. W. Staunton, Clerk of the County Court.

Refused.

LINN, BYRNE & CATO, and P. G. WALKER, for petitioner. MOLLOHAN, MCCLINTIC & MATHEWS, for respondent.

BRANNON, JUDGE:

Addison Hall presented to this Court a petition praying for a mandamus against E. W. Staunton, clerk of the county court of Kanawha county, to compel Staunton to allow Hall to inspect the poll books, tally sheets and certificates of precinct returns of a special election held in that county on May 9, 1903, upon the question of issuing bonds to fund the county's indebtedness. Staunton resists the award of a mandamus. The petition says Hall demanded such inspection of Staunton, but was refused it.

The petition states that the clerks made a statement from the returns that the bond proposition had carried, but that two members of the county court secretly met and caused to be entered on the election record an order' declaring that the proposition to issue bonds had not carried, but that said order was false, and that the returns as originally made showed that the proposition had carried, and that the returns had been fraudulently altered. The petition further states that Hall obtained from the circuit court a mandamus nisi against the members of the county court requiring them to convene as a board of canvassers and canvass the returns of said election, on the claim that no canvass had been legally made, and that the circuit court quashed the mandamus nisi and dismissed Hall's petition, with costs, and that Hall had the record copied with a view to applying to the Supreme Court for a writ of error to reverse the judgment of the circuit court; and that he again asked Staunton for an inspection of the said election documents stating that he desired it in connection with said proceeding, but was refused such inspection. The petitioner says that he desires to see the documents particularly for the reason that he had been informed that the result of the election, as it appeared on the election papers, had been changed; and that he believed that the true returns would show that the bond proposition had been carried. The petition states that "the question of whether or not said writ of error shall be applied for and prosecuted has been under advisement, and petitioner has not decided whether to apply for said writ or to abandon it," and