his children if he left any; and on the other were Sarah and her children. Between these two classes he divided his estate equally. The appellee admits that such would be the fact if he dies leaving children. Such would be equally the fact if the testator had limited the bequest to Sarah as he did the devise to Peter; that is, if he had provided cross-remainders in favor of the other in the event that either one of his two children died without leaving children. But, from the stand-point of the testator, such a limitation upon the bequest to Sarah in favor of Peter would have been of no actual benefit to Peter, because Sarah had then a number of children, and there would be no probability of her dying without leaving children. In that case Peter could not have disposed of the farm devised to him, but could only have had the use of it as he now has. Peter would then have had to pay the legacy of $4,000 at the death of the testator in order to make the estate of Sarah equal to his; for the estate given to him is worth at least $8,000 more than that given to his sister. So it is now; if Peter is permitted to retain the $4,000 until he dies, he will have in his possession $4,000 of the portion of his sister, and an estate worth $4,000 more than she has received besides. This would clearly not be an equal division, but Peter would, during his life, have the use of a property worth $18,000, while his sister would have but $9,000, or one-half as much. But it was known to the testator that Peter had no children, and would probably have none; and therefore, while he was willing to provide for Peter and any children he might leave, and make them equal to Sarah and her children, he was unwilling to provide for strangers such as Peter might make his devisees. He wanted to keep his property in his own blood; hence, after providing for Peter, and any possible children he might leave, just as he had done for Sarah and her children, he declared that, after Peter had enjoyed his bounty as long as he lived, then, in the event he left no children, the farm should pass to Sarah or her children, subject to a charge of $2,000 in favor of Mary C. Couch, the wife of Peter, should she survive him. This is the whole scheme of the will, as is apparent upon its face, and in no contingency was it intended to postpone the payment of the legacy to Sarah until the death of Peter; because to do so would not only be to disregard the plain mandate of the will, but make the division of the estate grossly unequal. It does not seem to me, therefore, that the will is either unnatural or unjust to Peter, even in view of all the facts in these causes. It is very common in wills for testators to provide limitations and crossremainders in the event that any of the devisees should die without children; and it has never been supposed that the fact that some of the devisees had children, while others had not, at the time the will was made, would make the portions of the devisees unequal. The following are such cases: Norris v. Johnston, 17 Grat. 8; Tebbs v. Duval, Id. 349. See 3 Jarm. Wills, 347; Abbott v. Essex, 18 How. 202. We are referred by counsel for appellee to 3 Jarm. Wills, 22, where the author says: "It has long been settled that where a devisee, whose estate is undefined, is directed to pay the testator's debts or legacies, or a specific sum in gross, he takes an estate in fee, on the ground that, if he took an estate for life only, he might be damnified by the determination of his interest before reimbursement of his expenditure." This rule has no application to the devise in this instance. Here, as we have seen, the devise to Peter S. Couch is defined and fixed by the will. It is only in cases where the estate of the devisee is doubtful or undefined by the terms of the will that this rule can be invoked. Abbott v. Essex, 18 How. 202; Mooberry v. Marye, 2 Munf. 453. At the time the testator died, the farm devised to Peter was held by him under a lease from his father, which did not expire until January 1, 1886, and it is therefore claimed that the legacy of $4,000 charged upon the farm, and which Peter is directed to pay to his sister, should not be made to bear interest until the time at which the lease terminates. This claim cannot be sus tained. The devise of the farm to Peter merged and extinguished the lease, and from the time the devise took effect he held the farm in all respects as if it had not been leased to him. 2 Pom. Eq. Jur. 244, § 787; Little v. Bowen, 76 Va. 724. There is also a question as to the time at which this legacy of $4,000 shall commence to bear interest. A legacy, for the payment of which no other period is assigned by the will, is not due till the end of a year after the testator's death; and as interest, in the absence of an express contract, can only be claimed for the non-payment of a demand actually due, it is an undisputed general rule that although a legacy vests, where no special intention to the contrary appears, at the death of the testator, it does not begin to carry interest until a year afterwards, unless it be charged solely on lands. 2 Chit. Bl. 514, note; Bradford v. McConihay, 15 W. Va. 732. This legacy is made a charge upon land, but not solely so charged. It is also made a personal demand against the devisee. 3 Pom. Eq. Jur. 224, § 1246; Brown v. Knapp, 79 N. Y. 136. The legacy here under the special facts and circumstances, I think, should bear interest from the death of the testator, notwithstanding the fact that it is not charged solely on land. It is a bequest to a child of the testator, and is in effect a gift to her out of land. The devisee of the land is required to pay this sum to his sister, in order that her portion of the estate may be equal to his; and, inasmuch as the son took the land at the death of the testator, it seems to be right and reasonable that he should be required to account to his sister for this legacy as of the time he commenced to enjoy the land. For the foregoing reasons, I am of opinion that the decree of the circuit court should be reversed, the bill in the first of these causes dismissed, and the second cause remanded to said court for further proceedings there to be had in accordance with the principles announced in this opinion. JOHNSON, GREEN, and WOODS, JJ., concurred. (30 W. Va. 55) 1. APPEAL HALL v. WADSWORTH. (Supreme Court of Appeals of West Virginia. June 29, 1887.) FROM JUSTICE'S COURT-TRIAL DE Novo. No fact tried in a civil action by a jury of six persons before a justice can be retried de novo by the circuit court, or otherwise than according to the rules of the common law. 2. WRIT OF ERROR-OBJECTION NOT TAKEN. This court will entertain a writ of error to and reverse a judgment of the circuit court in such case, although no objection was made to the jurisdiction of the circuit court in that court. (Syllabus by the Court.) Error to circuit court, Harrison county; Hon. A. B. FLEMING, Judge. error. SNYDER, J. Writ of error to a judgment of the circuit court of Harrison county, pronounced October 6, 1885, in the case of Jane Hall against C. G. Wadsworth. The action was commenced before a justice of said county for the recovery of $300 damages for breach of a written contract. The defendant, Wadsworth, appeared and filed a counter-claim for $376, and demanded a trial by jury. The action was tried by a jury, and a verdict returned for the plaintiff for $53, on which the justice entered judgment. The defendant then appealed the case to the circuit, when the action was again tried de novo by a jury of six, who found a verdict in favor of the defendant for $41.64. plaintiff moved the court in arrest of judgment against her, but the court The overruled her motion, and entered judgment for the defendant, against the plaintiff, on the said verdict. To this judgment the plaintiff obtained this writ of error. Although the amount in controversy in this court is less than $100 in value, still, as the case involves "the constitutionality of a law," this court has, by the express mandate of our constitution and statute, jurisdiction to consider and determine it. Const. art. 8, § 3; Acts 1882, § 1, c. 157, p. 505. The merits of this case present the same questions and none other than those decided by this court in Barlow v. Daniels, 25 W. Va. 512, and therefore the principles decided in that case must control and determine this case. In Barlow v. Daniels, it was held that our statute authorizing appeals from the judgments of justices, and the retrial of the cases de novo by the circuit courts, so far as it applies to cases in which the parties had appeared before the justice, and there had a trial by a jury of six jurors, is unconstitutional and void. It was also held in that case that no fact tried by a jury of six, before a justice, could be retried in the circuit court otherwise than according to the rules of the common law. It is therefore apparent that, according to the principles thus decided, the judgment of the circuit court in the case at bar was plainly erroneous, if not wholly void. In order to escape the effect of the decision in Barlow v. Daniels, the defendant in error argues that, inasmuch as the plaintiff in error did not move to dismiss the appeal in the circuit court, she should be held to have waived her right to do so, and thereby, in effect, consented to a retrial of the case de novo by that court. Our bill of rights (Const. art. 3, § 13) in positive terms prohibits the retrial de novo of a case like the one now in question by the circuit court. It seems to me therefore that the circuit court was without jurisdiction to hear the case on the appeal. It is a well-settled rule of law that where jurisdiction is unqualifiedly prohibited or withheld, even consent of the parties or the confession of judgment will not render the judgment or proceeding valid. Spear v. Carter, 1 Mich. 19, 48 Amer. Dec. 688; Low v. Rice, 8 Johns. 319; Henry v. Cuyler, 17 Johns. 471. The rule that, where there is no objection to the jurisdiction in the court below, it is too late to raise the objection in the appellate court, applies only to cases of concurrent jurisdiction, and has no place where there is an entire want of jurisdiction of the subject-matter. Green v. Creighton, 10 Smedes & M. 159, 48 Amer. Dec. 742. A judgment rendered without jurisdiction is not the less invalid because rendered under an unconstitutional statute giving jurisdiction. Horan v. Wahrenberger, 9 Tex. 313, 58 Amer. Dec. 145; Elliott v. Peirsol, 1 Pet. 328, 340. It follows, therefore, that the circuit court improvidently and erroneously entertained the appeal from the judgment of the justice; that the judgment of said court be reversed, and set aside; and, this court pronouncing such judgment as that court should have entered, it is ordered that appeal to the circuit court be dismissed. (Supreme Court of Appeals of West Virginia. June 29, 1887.) 1. OFFICER DE JURE-EXCLUSION FROM OFFICE-RECOVERY OF DAMAGES. A de jure officer, who has been excluded from his office by a person not legally entitled to it, may, in an action on the case, recover from such person for the injury sustained by such exclusion. 2. SAME-FEES OF OFFICE. Where a person exercised the duties of the office of sheriff under an apparent claim of right, and it was subsequently judicially determined that the office did not belong to him, the rightful officer may recover from such person the fees and perquisites received by him while in office, after deducting the necessary expenses of earning them. 3. SAME LIMITATION. In such case, if the action is brought more than five years after the intrusion commenced, but within less than that time before it ended, the plaintiff cannot recover for the profits of the office, received more than five years before, but may for those received within that period. (Syllabus by the Court.) Error to circuit court, Pleasants county. Trespass on the case. The opinion states the facts. John A. Hutchinson and D. D. Johnson, for plaintiff in error. J. B. Jack son and Geo. Loomis, for defendant in error. SNYDER, J. Action of trespass on the case, commenced April 30, 1884, in the circuit court of Pleasants county, by W. E. Bier against Oliver Gorrell. In September, 1877, the defendant was duly appointed and qualified as sheriff of Pleasants county, to fill the vacancy in said office until the election and qualification of a sheriff to fill said office for the unexpired term, which ended December 31, 1880. At the general election held October 8, 1878, the plaintiff was elected to fill said unexpired term, and on October 21, 1878, he qualified by taking the oath and filing the bond required by law. The defendant continued to hold and exercise the duties of said office, and by legal proceedings contested the right of the plaintiff to hold the office. In December, 1878, the county court reappointed the defendant to fill the office for the unexpired term. In the contest the county court decided that the plaintiff, Bier, was ineligible, and his election void. The circuit court reversed the said judgment of the county court, and decided that Bier was entitled to the office. Upon a writ of error, taken by Gorrell, this court, on July 9, 1879, affirmed the said judgment of the circuit court. Gorrell v. Bier, 15 W. Va. 311. On August 2, 1879, Gorrell surrendered the office to the plaintiff, Bier. The present action is brought to recover from the defendant the damages sustained by the plaintiff by reason of the defendant's withholding from the plaintiff the said office during the period from October 8, 1878, to August 2, 1879. There was a verdict and judgment in the circuit court in favor of the plaintiff for $466.91, and the defendant obtained this writ of error. 1. There was a general demurrer to the declaration, which the court overruled, and this is the first error assigned. The declaration is irregular and quite informal; so much so that it is difficult to determine whether the pleader intended it for one count only in case, or for two counts,-one in case, and the other in assumpsit. In its first paragraph it avers that the defendant illegally and fraudulently exercised the duties of the office, and received the fees, com. missions, and perquisites thereof, to the amount of $2,000, which of right belonged to the plaintiff, and which on demand he refused to pay to the plaintiff; and in the second paragraph it avers that the plaintiff demanded of the defendant to desist from the exercise of the duties of the office, and to turn over to him the books and papers belonging thereto; that the defendant failed to do so, but, well knowing the premises, he continued to exclude the plaintiff from said office, and to exercise the duties, and to appropriate to himself the fees, commissions, and perquisites thereof to the amount of $2,000; whereby the plaintiff has sustained damages, etc. Taking the whole declaration together, I think it must be regarded as consisting of but a single count in case. Neither of its paragraphs avers any promise on the part of the defendant. Such an averment is essential in assumpsit. If the declaration did, in fact, contain two counts, one in case and the other in assumpsit, it would be clearly bad, because actions founded on tort can never be joined with actions on contracts. 4 Rob. Pr. 875. It seems to me, however, that there is no such misjoinder in this case. The question then arises, does this declaration state a legal cause of action? It seems to be well settled that a de jure officer, who has been kept out of his office by the intrusion of another person, may by action recover from such person for the injury sustained by him, and that in such action the lawful perquisites which the plaintiff would have received if he had exercised the office are the proper measure of his recovery. The common-law form of action in such cases was on the case of the assizes. Boyter v. Dodsworth, 6 Term R. 681; Auditors, etc., v. Benoit, 20 Mich. 176, 4 Amer. Rep. 382. It seems to be a principle of natural justice, as well as law, that where one person has injured another, or received the compensation which in equity and good conscience belongs to another, he may be required by action to account to such other for the injury done him. In like manner will an intruder in office be required to account to the legal officer for injury done by the intrusion. The legal right to an office confers the right to receive and appropriate the fees and perquisites legally incident thereto. When such officer performs the duties of his office, he may demand and receive the compensation therefor allowed by law, and he is as fully entitled to such compensation as he would be in any other case entitled to pay for skill and labor done for another at his request. The legal fees and emoluments of an office are a part thereof, and belong to the rightful incumbent; and, where a person receives such fees and emoluments on the pretense of title to the office, the de jure officer may recover the profits of the office from him by an action of assumpsit for money had and received to his use. Arris v. Stukely, 2 Mod. 260; Mayfield v. Moore, 53 Ill. 428, 5 Amer. Rep. 52. Where the office is one with a fixed salary attached to it, the officer will be entitled to recover the entire official salary, without any deduction for the services of the incumbent, or for what he may have earned himself while ousted. People v. Miller, 24 Mich. 458; Comstock v. Grand Rapids, 40 Mich. 397; Dolan v. Mayor, 68 N. Y. 274. Such, however, is not the case when the compensation affixed to the office is made to depend upon fees for services rendered to the public and to individuals. In such case the officer is entitled to recover from an incumbent, acting under an apparent claim of title, only the profits of the office; that is, the fees and perquisites, less the necessary expenses of earning them. Mayfield v. Moore, 53 Ill. 428, 5 Amer. Rep. 52; Sedg. Dam. 659, note. The form of action in most of the cases I have been able to find has been assumpsit for money had and received to the use of the plaintiff; but inasmuch as the original action in cases of this kind was on the case of assize, which was an action in tort, I cannot see why an action on the case as well as assumpsit does not now lie. In Boyter v. Dodsworth, 6 Term R. 683, Lord KENYON, C. J., says: "If there had been certain fees annexed to the discharge of certain duties belonging to this office, and the defendant had received them, an assize would have lain; and the action for money had and received to recover fees has always been considered as being substituted in the place of an assize." In many cases assumpsit and case are convertible actions. Where there has been tortious taking and conversion of goods, the owner may bring either trespass for the taking, or he may waive the tort, and bring assumpsit for their value. Maloney v. Barr, 27 W. Va. 381. And under our statute case may be maintained by any action where trespass would lie. Code, § 8. c. 103. It seems to me, therefore, that the plaintiff's declaration is, in substance, sufficient, and that the demurrer thereto was rightly overruled. 2. The next assignment of error that we deem it necessary to consider is in relation to the statute of limitations. The defendant, having pleaded the statute, asked that the court instruct the jury that it was incumbent upon the plaintiff to satisfy the jury that the defendant received and collected the fees and emoluments of office sought to be recovered, within five years before the time this action was commenced. The court gave the instruction, with |