.■Br - «** KF m MaraliaU lEquttg QloUctttnn (gift of IE. ~A. iltaraljaU, ILffi. 1. 1894 CORNELL UNIVERSITY LIBRARY 3 1924 084 260 623 Cornell University Library The original of tinis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084260623 Equity Procedure Embodying the Principles of Pleading and Practice Applicable to Courts of Equity, and Containing Many Precedents of General, Practical Utility Designed Especially to Meet the Demands of Prac- tice in Virginia and West Virginia, and for General Use in Other States, Being a Thorough Revision of Hogg's Equity Procedure By LEO CARLIN, A. B., LL. B. Professor of Law at the West Virginia University TWO VOLUMES VOLUME I CINCINNATI THE W. H. ANDERSON COMPANY LAW BOOK PUBLISHERS ■ 1921 [1] filo^H^o Copyright, 1921, By THE W. H. ANDERSON COMPANY 'Dedication to Hogg's Equity "Procedure First Edition CAPTAIN WILLIAM R. GUNN Soldier, Lanxyer, Gentleman Who, for nearly half a century, has been an able, honored member of the Mason county bar; as a token of personal friendship and esteem, and an expression of appreciation of his courtesy and manliness, THIS JVORK IS RESPECTFULLY DEDICATED By the Author iU PUBLISHER'S PREFACE This treatise was prepared and submitted for publication as a revision of Hogg's Equity Procedure. In some respects, it may properly be regarded as an ordinary revision, but the work as a whole embodies results not usually iound in a revi- sion. In many instances, changes in the language and punctua- tion of the original text not only add a strong tinge of orig- inality, but at the same time impose a responsibility not usually assumed by a revisor. To give the work the s.tatus of a revi- sion would be misleading. Consequently, upon mature delibera- tion, and at our own initiative, we have decided to entitle the new edition "Carlin's Equity Procedure." At the same time, full credit must be given to Mr. Hogg in emphasizing the fact that his work has furnished the basis of arrangement and the great body of the substance for the new work. IV PREFACE TO HOGG'S EQUITY PROCEDURE The need of a work in West Virginia designed to meet the demands of practice in a court of equity has long been felt. While the bench and bar have had access to books of this sort of general application in such court, their plan and scope do not meet the requirements of the inexperienced or the busy and active lawyer. This, however, is not attributable to defect of merit in general treatises of this character, but to the difficulties encountered by the authors in adapting their books to the spe- cial requirements of local practice in several of its peculiar and important features, and at the same time essaying to make the results of their labors distinctively available in courts of equity generally, as practical aids to court and lawyer in the perform- ance of the work at hand. The growth of .iudicial opinion and the changes and innovations arising from statutory enactment, have given rise to marked differences in the principles and rules of practice, as obtaining in courts of equity in the various states where equity relief is administered, in a procedure distinct and separate from that of a court of law. To meet the divergencies thus created in the practice of a court of equity in a single treatise of convenient size, so as to make it practically reliable, and at the same time accommodate it to the demands of numer- ous diversities, must necessarily involve great labor, and require a greatly extended knowledge of equitable rules and principles and rare legal attainments. It is needless to say that the author of this work has attempted nothing of that character. He has only endeavored to present a connected view of the rules and principles of equity pleading and practice as recognized and enforced in the courts of the Virginias, illustrating them with such forms as his experience and observation have suggested as vi Preface to First Edition being practical and useful. There is not great difference in the detail of equity procedure in the two states; and the homo- geneity of their laws and the similarity of practice in their courts of justice, have enabled the author to exhibit the differ- entiation touching their systems of equity pleading and practice without serious embarrassment or difficulty. To say, however, that differences, in a modified degree, do exist in the equity practice of these two states, will neither awaken surprise nor provoke comment; and it has been the effort of the author, in the main, to exemplify these differences in the text, or in full explanatory notes — to the extent, at least, of giving the work a practical east for indiscriminate use in both states. The plan of the work is marked with some deviation from the arrangement of works of like character, based upon the author's conceptions of the needs of the lawyer in his practice in the use of a publication of this nature. The distinctively logical arrangement of equity procedure would require the subject of parties to be first considered ; but instead of this, the matter of venue and then of process com- mencing a suit and its execution is discussed, before the com- plex and intricate doctrine of parties is reached. Thence the questions which crowd themselves into a suit in equity are distinctly considered, and in the order of their usual occur- rence in the conduct of litigation in the equity tribunal. After these matters come the forms with their annotations, to which are devoted seventeen chapters. These include bills, answers, replications, petitions, notices, affidavits, reports, exceptions, orders and decrees, intended largely for local use in the Vir- ginias, but for the most part available as precedents elsewhere in a court of equity. This feature of the work is the result of considerations of convenience to the practicing lawyer in the draft of his pleadings and decrees in the busier moments of professional work, and as a practical aid to the younger and less experienced members of the profession. It is believed that this part of the work will augment its usefulness to all those who feel the need of a treatise of this character in the course of professional employment. Preface to First Edition vii While it is the belief of the author that the scope of his con- sideration of the subject of pleading and practice in equity will in a great measure reach the ends of its design, yet, whether it fills the requirements of bench and bar, must ultimately be determined by the test of its use. Chas. E. Hogg. Point Pleasant, West Virginia. March 'l7, 1903. PREFACE TO CARLINS EDITION OF HOGG'S EQUITY PROCEDURE In undertaking this revision, the revisor has assumed a task which, however humble in its accomplishment, may easily be underestimated. By way of correction, an effort has been made to verify all the original citations, with a view to elimination of typograph- ical and other errors. The citations have been expanded so as to include additional sources of publication of the cases cited. The cases have been examined and compared with reference to the text which they were intended to support. Some have been eliminated. Others, which have been superseded, although not reversed, by later cases, might have been eliminated. Particu- larly is this true in the numerous instances wherein the author, through necessity, cited decisions of foreign jurisdictions to support principles which, at the time of the first edition, had not been adjudicated in the local courts. But it was thought better to risk sinning in prolixity of citation, rather than to attempt a wholesale excision of pertinent authorities, many of which are recognized as leading cases in all jurisdictions, and moreover, perhaps because of the fact that they have been cited in the original edition, have frequently been cited and approved by the local courts. Recognizing the fact that the predominant purpose of the original work was to supply the needs of Virginia and West Virginia practitioners, the revisor has interpreted his task as being chiefly concerned with an endeavor to bring the Virginia and West Virginia law down to date in the revision. Hence, the supplemental research necessarily has involved a close exam- ination of statutory enactments and a great number of the more recent decisions in the two states, the, majority of the decisions being a mere reiteration or variation of fundamental principles X Preface to Carlin's Equity Procedure adopted and approved in the earlier eases. It is believed that most of the pertinent decisions in the two states published since the publication of the original edition (approximately from vol- umes 50 and 100 of the West Virginia and Virginia reports, respectively) have been examined. Doubtless, some have been omitted which should have received attention. However, a warning that the text and citations are not intended as a sub- stitute for encyclopedias and digests is superfluous. The preparation of this edition has been undertaken primarily as a task of revising a treatise recognized as already widely known and extensively used by the profession. Hence, any temptation to interfere with the general scope and plan of the work has been suppressed. No few additions have been made to details of the text, and alterations have been made where neces- sary; but in most instances, where practicable, amplification of the original discussion embodying the fruits of the later deci- sions has been confined to an expansion of the foot-notes. Many formal modifications in the language and phraseology have been made, where such changes have been suggested by the require- ments of clarity or precision; but such changes have been avoided where suggested only as a matter of individual taste or style. The latter statement has particular application to the revision of the forms, many of which are adapted to the local practice from old and established precedents, in which the substance has been tried and tested, although the language and phraseology are to a certain extent archaic. Our own Judge English has said that ' ' the forms of the law are the best evidence of the law." Still it must always be recognized that the prac- tical utility of forms reposes in the aid furnished by way of hint and suggestion, rather than in furnishing any absolute guide and criterion in any specific case. The revisor's trust is that the imperfections of his effort may seek compensation and condonation in some beneficent results from a task which he has undertaken as a practical aid to the profession, rather than as a scholastic accomplishment. Morgantown, West Virginia. ^- ^arlin. TABLE OF CONTENTS VOLUME I CHAPTER I THE COU\^TY WHERE THE SUIT MAY BE BROUGHT Section Page 1. General statutory regulations 1 2. The residence of the defendant as determining the county in which suit may be brought 3 3. The county in wliich t)ie suit may be brought when a corporation is the defendant 5 4. County wherein suit should be brought, to recover or subject land to the payment of a debt 6 5. The county in which a. non-resident may be sued 8 6. The county in which an insurance company maybe sued 9 7- The county in which suit should be brought when the state is the plaintiff 10 8. The county in which suit should be brought when a judge of the circuit is interested 11 9. As to the bringing of a suit in the county in which the cause of action gr some part thereof arose 11 10. Special statutory provisions 12 11. General observations as to the place or county in which suit may be brought 13 CHAPTER II THE COMMENCEMENT OF A SUIT AND THE PROCESS RELATING THERETO 12. Suit in equity is brought by the issuance of a summons 16 13. The officer or person to whom process commencing suit may be directed 18 14. The service and return of the summons 20 15. Service of summons upon a natural person 22 16. Service of process upon persons under disability 24 17. Service of summons upon a corporation 25 18. How process may be served upon a corporation that haa not complied with the requirements of statute 2§ xi xii Table of Contents Section Page 19. The acceptance of the service of a summons 2S 20. Service of process by order of publication on a natural person. ... 29 21. Service of process by order of publication upon a corporation 32 22. There can be no persona! decree against a defendant uj^on wliom process is served only bj' order of publication 32 23. Personal service of process on nonresident defendants 33 24. How process may be served upon an unincorporated common carrier 34 25. How an order of publication is posted and published, and what the order must state 34 26. As to effect and date of the return of the service of process.... 35 27. The alteration or amendment of the process 36 28. Void and voidable process 37 29. Amendment of process after a plea in abatement thereto 39 30. How defects in the process and its return are reached 40 31. Who may take ad ventage of defect in process or its execution. ... 41 32. Amendment of the return to the process 42 33. Alias process and when it may be issued 42 34. The waiver of process and the service thereof 43 35. The recitals in a decree with reference to the process commencing the suit 44 36. Time given defendant in which to enter his appearance after exe- cution of process 45 CHAPTER III PARTIES 37. General observations and principles with reference to the neces- sary or proper parties to a suit 48 38. The character and extent of interest .determining the question of parties 53 39. Parties plaintiff, their interest and right to relief 55 40. Suit in the name of one plaintiff on behalf of himself and others. . 57 41. Necesisary and proper parties, plaintiff and defendant, in differ- ent matters of equity jurisdiction 58 42. In matters of abatement, wliethcr as to purchase money or other- wise 60 43. In matters of account 61 44 In the matter of agency 62 45. In the matter of alimony 63 46. In the matter of the annulment of marriages 63 47. In matters of arbitration and award 64 43 In matters of assignment : 64 49. In matters of attachment 69 50. In the matter of the cancellation and rescission of written in- struments. Cloud upon title to real estate 70 Table op Contents xiii Section Page 51. Cancellation in cases of fraud » 71 52. Cancellation in cases of mistake 73 53. Cancellation in cases of inadequacy of consideration and mis- representation 73 54. Cancellation in cases of undue influence 74 55. Cancellation in cases of infancy 74 56. Cancellation in cases of drunkenness 75 57. Cancellation in cases of fiduciary relationship 76 58. In the matter of confusion of boundaries 77 59. In matters of contribution 77 60. In matters of corporations 79 61. In the matter of creditors' bUls ^ 83 62. In matters pertaining to deeds of trust 86 63. In the matter of dower (assignment of) 88 64. In matters pertaining to the estates of decedents 89 65. In matters relating to fiduciaries 93 66. In matter.s of fraud 96 67. In the matter of fraudulent conveyances 96 68. In matters relating to guardian and ward 99 69. As to matters relating to husband and wife 100 70. In matters relating to injunctions 101 71. In matters relating to judgments and decrees 105 72. In matters relating to legatees and distributees 106 73. In the matter of the enforcement of liens 109 74. In the matter of mortgages — redemption of 114 75. In the matter of mortgages — continued— foreclosure of 115 76. In matters relating to municipal corporations 116 77. In matters of partition 117 78. In matters of partnership 121 79. In ma.tters of specific performance 123 80. In matters of subrogation 127 81. In matters relating to taxpayers and the expenditure of public funds 128 82. In matters relating to trusts and trustees 130 83. In matters of usury ■ 133 84. In matters of waste 133 85. In matters of wills (contest of) 136 86 In matters of wills (construction of) 138 87. Joinder of parties 140 88. Joinder of husband and wife in West Virginia 145 89. Joinder of husband and wife in Virginia 146 90. Joinder of parties plaintid 147 91. Joinder of defendants 151 92. Misjoinder of parties 153 93. Misjoinder of parties plaintiff 153 94. Misjoinder of parties defendant 154 xiv Table of Contents Section Page 95. How miajoinder of parties plaintiff availed of 155 96. How and when advantage taken of non-joinder of parties 156 97. When bill should be dismissed for want of proper parties 158 08. How persons made parties to a suit 159 99. Ho\v persons again made parties as to whom suit has been dis- continued 16 1 100. Unborn persons as parties to a suit 161 CHAPTEE IV THE BILL 101. Origin and definition of a bill in equity 166 102. The different kinds of bills in equity 168 103. The form and structure of the bill. The address or direction thereof 170 104. The introduction or caption of the bill 171 105. The premises or stating part of the bill 171 106. The confederating part of the bill 172 107 The charging part of the bill 173 lOS. The jurisdiction clause of the bill 174 109. The interrogatory part of the bill 175 110. The prayer of the bill for relief 177 1 11. The prayer of tlie bill for process 180 112. The signing of the bill 181 113. When the bill should be under oath 183 114. The stating part of the bill further considered. — Matters which should be alleged therein 184 115. The stating part of the bill, further considered. — Matters which ought not to be alleged therein 188 116. What matter is scandalous or impertinent 189 117. How objections for scandal and impertinence are raised 192 118. Essential allegations of the bill in certain causes. — In matters ■ of account 193 119. In matters of arbitration and award 194 120. In the matters of attachment 195 121. In the matter of the cancellation, reformation and rescission of Avritten instruments 196 122. In the matter of the removal of cloud upon title to real estate.. 193 123. In the matter of creditors' bills 200 124. In the matter of divorce 202 125. In the matter of dower (assignment of) 207 126. In matters requiring the doing of equity on the party if the plaintiff as a condition to relief 208 127. In the matter of fraud generally 209 128. In the matter of fraudulent and voluntary conveyances 210 129. In matters of injunctions 212 Table of Contents xv Section Pagd 130. In the matter of setting aside or impeaching judgments and decrees 215 131 In matters involving laches 216 132. In the matter of the enforcement of liens 213 133. In the matter of lost instruments 220 134. In the matter of mistake 221 135. In matters of new trials 222 136. In matters of partition 222 137. In matters of partnersliip 223 138. In the matter of specific performance of contracts 225 139. In the matter of suit by stockholJera on belialf of the corpora- tion 226 140. In the matter of surcharging and falsifying the accounts of fiduciaries 227 141. In the matter of trusts and trustees. — Appointment of a new trustee 229 142. In the matter of trusts and trustees. — The sale, mortgage, or lease of trust property 230 143. In the matter of trusts and trustees. — The investment of trust funds 230 144. In the matter of trusts and trustees. — An accounting by the trustee 231 145. In the matter of trusts and trustees. — Removal of trust funds to another state or country 232 146. In the matter of trusts and trustees. — The establishment and enforcement of trusts 233 147. In the matter of trusts and trustees. — Controversies between trustees and their beneficiaries, and with third parties.... 235 148. In the matter of trusts and trustees. — The pursuit of trust funds or property 236 140. In matters of usury 237 150. In the matter of wills (contest of) 238 151. The bill may be framed with a double aspect 239 152. The bill must not be multifarious 240 153. Illustrations of bills not multifarious 243 154. Illustrations of bills treated as multifarious 249 155. How defect of multifariousness is reached 251 156. The exhibits filed with the bill 251 CHAPTER V BILLS OF INTPJEPLEADER 157. In what cases a bill of interpleader will lie 253 158. By whom a bill of interpleader may be filed 258 159. Instances illustrative of the right to maintain interpleader 257 xvi Table of Contents Section Page 160. A bill of interpleader can not be filed when an adequate legal remedy exists 258 161. The parties to a bill of interpleader 25S 162. The necessary allegations of a bill of interpleader 259 163. A bill in the nature of a bill of interpleader 260 164. Interpleader as provided by statute 261 165. Costs on bill of interpleader 262 CHAPTER VI BILLS TO PERPETUATE TESTIMONY 166. The object of bills to perpetuate testimony 263 167. The essentials of a bill to perpetuate testimony 263 168. The provisions of a statute as to the perpetuation of testimony. . 264 CHAPTER VII BILLS T)E BENE ESSE 169. Definitions and nature of bills de iene esse 266 170. By whom a bill de bene esse may be maintained 266 171. When a bill de bene esse is maintainable 266 172. The essential allegations of a bill de bene esse 267 173. Statutory provision has superseded the necessity for a bill de bene esse 267 CHAPTER VIII BILLS OF DISCOVERY 174. Classification and definition of bills of discovery 269 175. When a pure bill of discovery may be filed 270 176. Against whom and as to what disclosures a bill of discovery will lie 271 177. What matters the defendant must disclose 272 178. How objection to answering a bill of discovery may be raised. . . . 274 179. Bills of discovery as to documentary evidence 274 180. That a party may be examined as a witness does not preclude right to bill of discovery 275 181. The necessarjr allegations of a pure bill of discovery 270 182. As to the allegations of a mixed bill of discovery 276 183. The answer to a pure bill of discovery 277 184. The effect of an answer to a pure bill of discovery 27S 185. The answer to a mixed bill of discovery 279 186. Discovery by means of interrogatories 27S 187. The rights of the parties with reference to interrogatories as a means of discovery 280 Table of Contents * xvii CHAPTER IX AMENDED AND SUPPLICMENTAL BILLS Section Page 188. The difference between an amended and supplemental bill 281 189. Supplemental bill must be consistent with original 282 100. When an amended or supplemental bill may be filed 283 ini. Leave of court should be obtained to file supplemental bill 284 192. How leave to file a supplemental bill is obtained 285 193. The requisites of a supplemental bill 28.5 194. The parties to a supplemental bill 286 195. Amendment in lieu of a supplemental bill : 286 196. Supplemental bill in the nature of a bill of review 287 197. Defenses to supplemental bills 288 198. Original bills in the nature of supplemental bills 288 CHAPTEE X BILLS OF REVIVOR 199. Abatement of a suit and its effect in a court of equity 389 200. When a suit abates, so as to make revivor necessary 280 gOl. By whom and in whose name a suit should be revived 292 202. How a suit may be revived. — Bill of revivor 293 203. The essential averments of a bill of revivor 294 204. Defenses to a bill of revivor 294 205. Bills in the nature of bills of revivor 295 B06. Bills of revivor and supplement 296 207. Revivor by scire facias 296 208. Revivor by motion 297 CHAPTER XI CROSS-BILLS 209. Definition and purpose of a cross-bill 298 210. When defense available on bill and answer cross-bill should not be filed 290 211. Cross-bill must be germane to original bill 299 212. As to new matter in a cross-bill 302 213. Cross-bill must be consistent with the answer 302 214. Nature of relief obtainable by cross-bill 303 215. Who may file cross-biil 303 216. The necessary defendants to a cross-bill 304 217. The essential averments of a cross-bill 305 218. When a cross-bill may be filed 306 219. As to obtaining leave of court to file a cross-bill 307 xviii Table of Contents Section Page 220. Demurrer to cross-bill 307 221. Plea to cross-bill 308 222. Answer to cross-bill 308 223. Effect on cross-bill of dismissal of original bill 308 224. Stay of proceedings on the original bill 310 225. The hearing on the cross-bill 311 CHAPTEE XII BILLS OF REVIEW 226. Nature-of a bill of review 312 227. When a bill of review will lie. — Decree must be final 313 228 Where bill of review filed and class of cases reached by it 314 229. What is error apparent on face of decree 315 230. What sufficient newly-discovered matter to sustain bill of review 317 231. Within what time bill of review must be filed 318 232. Leave of court as to filing bill of review 319 233. How leave to file a bill of review obtained 320 234. Who may file a bill of review 321 235. Parties defendant to a bill of review 323 236. The essential allegations of a bill of review 323 237. Some instances illustrative of the use of a bill of review 326 238. Some instances illustrative of the disallowance of a bill of re- view 327 239. Performance of the decree before filing bill of review 329 240. Defense to bill of review for errors of law 330 241. Defenses to a bill for newly-discovered matter 331 242. Bill in the nature of a bill of review 332 243. Supplemental bill in the nature of a bill of review 332 CHAPTEE XIII PETITIONS 244. Definition of petition and the different kinds thereof 335 245. Petition as to new partiei 335 246. Petition for rehearing 338 247. The requisites of a petitii n for a rehearing 340 248. What is an interlocutory decree 342 249. Parties to a petition for a rehearing 343 250. Defenses to petitions for rehearings 343 251. The procedure on the hfaring of the petition 343 252. Petition to obtain furthi r relief under a final decree 344 2.53. Petitions by virtue of statute. — Sale of property of persons under disability 344 254. Claims against the statif disallowed by the auditor 345 Table of Contents xix Section Page 255. Petition disputing the validity of an attachment 345 256. Who may tile petition to dispute validity of attachment 346 257. Time when petition to dispute validity of attachment must be filed 346 25S Issues and procedure upon filing petition to dispute the validity of an attachment 346 259. Petition for a rehearing under the statute after entry of decree. . 347 260. Time within which petition for a rehearing under the statute may be filed 349 261. Form and requisites of a petition for a rehearing under the statute 350 262. Procedure on a petition for a rehearing under the statute 350 263. Decree on a petition for a rehearing under the statute 351 264. Petition to transfer estate of minor or insane person into another state or country 351 265 Petition to remove proceeds of sale of real estate of infant, insane person or cestui que trust 353 266. Procedure to remove property of minor or insane person or pro- ceeds of sale of real estate 354 267. Petition to remove pergonal trust funds or assets of the estate of a decedent 355 268. Procedure to remove personal trust funds or assets of the estate of a decedent 356 269. Petition for the sale of the property of any church, benevolent or educiitional association or institution 356 270. Proceedings upon a, petition for the sale of the property of any church, benevolent or educational association 357 271. ANTien the court may order a sale of the property of any church, benevolent or educational association or institution 358 CHAPTER XIV PROCEDURE AT RULES 272. Rule days for the filing of pleadings 350 273. The rule docket 36n 274. The record of the proceedings at rules 360 275. Wh.it may be done at rules 361 276. Time allowed parties in which to plead 362 277. A^Tien bill must be filed at rules 362 278. Time w ithin which defendant may appear at rules 362 279. The effect of the defendant's failure to appear and plead at rules. 363 280. Cause must be set for hearing 363 281. When case may be set for hearing as to a part of defendants 364 282. The abatement of a suit at rules 365 28u. Observance of the rules essential to the maturing of a cause. . . 366 XX Table of Contents CHAPTER XV DEFENSES ' Section Page 2S4. The different defenses available in equity 369 285. Classification of defenses based on fact 369 286. Definition and origin of a demurrer 371 287. Definition and purpose of a plea in abatement 372 ■ 288. Definition and purpose of a plea in bar 372 289. Definition and nature of a. disclaimer 373 290. Filing an answer not to be evaded by means of a disclaimer 374 291. The requisites of a disclaimer 371 292. As to the time of entering a disclaimer 375 293. Exceptions to a disclaimer 375 294. Disclaimer by one of several defendants 376 295. The proceedings upon the filing of a disclaimer 376 296. The effect of a disclaimer 376 CHAPTER XVI PLEAS IN ABATEMENT 297. Pleas in abatement in a court of equity 378 298. Certainty and strictness required in pleas in abatement 379 299. Plea in abatement must give the defendant a better writ 379 300. Time within which a plea in abatement must be filed 380 301. Pleas in abatement and in bar may be filed at the same time. . . 381 302 Plea puis darrein continuance 381 303. Classification in equity of pleas in abatement 381 304. Pleas to the jurisdiction and their requisites 382 305. When plea in abatement as to jurisdictional matters need not be filed 383 306. Plea in abatement to the person 384 307. Plea in abatement to the person — furtlier considered 385 308. Plea in abatement to the person — further considered 385 309. Pleas in abatement to the bill 386 310. Plea in abatement of the pendency of another suit 3S7 311. Plea in abatement of the pendency of another suit — further considered 389 312. Plea in abatement of the want of proper parties 389 313. Plea in abatement that the proceeding would cause a multi- plicity of suits 30] 314. Plea in abatement that the bill is multifarious 301 315. Striking out or withdrawing plea in abatement from the record. . 391 Table of CoNTiiNTS inri CHAPTER XVII THE DEMURRER Section Page 316. The object and scope of a demurrer 392 317. What matters are admitted by a demurrer 393 318. The form of the demurrer 394 319. Demurrer to a part of the bill 396 320. A demurrer ore tenus 397 321. The general matters which a demurrer will reach 398 322. Demurrer for want of jurisdiction 399 323. Demurrer for want of jurisdiction — further considered 400 324. Demurrer for defect of parties 401 325. Demurrer for want of interest in the parties or any of them 402 326. Demurrer because of incapacity to sue 402 327. Demurrer because of delay in bringing suit 403 328. Demurrer because of multifariousness 404 329. Demurrer because of the statute of frauds 404 330. The demurrer because of want of equity in the bill 405 331. Demurrer in cases of discovery 406 332. In cases of amended and supplemental bills 406 333. Demurrer in miscellaneous cases 407 334. Illustrative instances of the disallowance of a demurrer 408 335. The issue upon a demurrer 408 336. Scope of the hearing on demurrer 409 337. When a demurrer will be treated as having been overruled 410 338. What the court should do upon overruling a. demurrer 410 339. When a demurrer may be filed 412 340. ^^'hat to be done upon siistaininji a demurrer 413 341. To what pleadings a demurrer may not be filed 413 342. Effect of dismis.iing bill on demurrer 414 . CHAPTER XVm AMENDMENT 343. Definition of amendment 417 344. When an amendment may be made 417 345. Discretion of court as to amending the bill 418 346. At what stage of the cause a bill may be amended 419 347. The extent to which the bill may be amended 421 348. Amendments of the bill as to parties 423 349. Amendment of the bill as to its prayer for relief 427 350. Amendm.ent of the bill as to its statement of facts 427 351. When the court will not permit the bill to be amended 430 352. Illustrations showing an infraction of the rule forbidding the introduction of a new cause of suit under the guise of an amendment 431 xxii Table op Contents Section Page 353. Illustrations showing no departure from the rule forbidding the introduction of a new cause of suit under the guise of an amendment 433 354. As to amending a sivorn bill 436 355. As to amending an injunction bill 437 356. Effect upon the injunction of an amendment to the bill 438 357. As to filing an amended bill in the clerk's office in the vacation of the court 439 358. How leave to amend may be obtained 439 359 The manner in which a bill should be amended 441 360. How objection to an amendment may be made 442 361. As to when an amendment to a bill takes effect 442 362. When process shoiild be issued on an amended bill 443 363. Effect of an amendment to the bill upon the right of continu- ance 444 364. Laches in asking leave to amend 446 365. As to the riglits of the defendant to plead anew after the bill has been amended 447 366. Eight of defendant to amend his plea 488 367. Eight of defenilant to amend his answer 440 368. Illustrations of defendant's right to amend his answer 453 360. Illustrations of the court's refusal to permit the answer to be amended 454 370. How the apjilieation to amend an answer may be made 456 371. How amendments to an answer made 457 372. The amendment of replications : 458 373. The right to amend a decree 458 374. Amendment of the decree becaiMe of clerical errors therein 462 375. As to the amendment of a consent-decree 465 CHAPTER XIX PLEAS IN BAE 376. Classification of pleas in bar 467 377. Plea of the statute of limitations 468 378. Who may plead the statute of limitations 470 379. Plea of the statute of limitations by one of two or more joint defendants 472 380. The statute of limitations in cases of fraud and trust. — When it begins to run 473 381. The statute of limitations as to setting aside conveyances or other transactions to the prejudice of the rights of creditors 475 382. Period of time in which the right of action or suit is barred by the statute of limitations 477 383. Cases not specifically provided for that come within the general five-year period of the statute of limitations 484 Table op Contents xxiii Section Page 381. Cases not specifically provided for, in which the period of limi- tation is one year 485 385. When the statute of limitationcs begins to run against the right to sue 486 386. A\'hen the fitatute of limitations does not apply 403 387. As to presumption of payment from lapse of time 40.5 S88. Laches as a defense in equity 408 389. What will relieve from the bar of tlie statute of limitations. . . . 501 390. What will relieve from the bar of the statute of limitations — further considered — ^New promise 506 391. AVhat will relieve from the bar of the statute of limitations — further considered. — Obstructions to plaintiff's right of suit 509 392. 'Wliat vfiW relieve from the bar of the statute of limitations — further considered — Deduction of certain periods of time. . 512 393. AThat will relieve from the bar of the statute of limitations — further considered. — One year after abatement of suit.... 513 394. As to the running of the statute of limitations against the state and municipalities 514 395. Burden of proof as to the statute of limitations 516 396. Plea of the statute of frauds 516 397. Plea of any other statute 517 398. Pleas of matter of record. — Of former judgment 518 399. Pleas of matter of record continued. — Of former judgment of a court of a foreign state or country 522 400. Of pleas of matter of record continued. — Of former decree 523 401. Of pleas of matter of record continued. — Of adjudications of a court other than a court of law or equity 528 402. As to the identity of the parties to the former action or suit, and the effect of the judgment or decree therein upon their rights in a second suit 528 403. Essential allegations of a plea of former adjudication 531 404. Pleas in bar created by matter in pais. — A release 532 405. Plea in bar created by matter in pais further considered. — A stated account 532 406. Pleas in bar created by matters in pais further considered. — A settled account 534 407. Pleas in bar created by matters in pais further considered. — An award 534 408. Pleas in bar created by matters in pais further considered. — That the defendant is a purchaser for valuable considera- tion 535 409. Pleas in bar created by matters in pais furtlier considered. — Title in the defendant 537 410. Pleas in bar created by matters in pais further considered. — Release of surety 538 411. Essential requisites of a plea in bar 539 xxiv Table op Contents Section Page 412. Distinction between a plea and an answer 541 413. When an answer must accompany the plea 542 414. The frame of a plea 544 415. When a plea in bar may be filed 545 416. How the sufficiency of a plea in bar or in abatement may be determined 545 417. How the issue is formed on a plea in equity, and the scope of the issue 546 418. Burden of proof on the issue joined on a plea in equity 647 419. How the issue joined upon a plea is tried 548 CHAPTER XX THE ANSWER 420. Definition and purpose of an answer 550 421. The general nature of an answer 551 422. The component parts of an answer 554 423. The caption of an answer 554 424. The caption of an answer — further considered 557 425. The appointment of a guardian ad litem 558 426. The reservation of exceptions to the bill made in the answer. .. . 559 427. An answer should be distinct and categorical 560 428. That the answer should be distinct and categorical — further considered 562 429. That the ansM'er should be distinct and categorical — further considered 564 430. The effect of an answer by one defendant wihere others do not answer 567 431. A general traverse or denial of the averments of the bill 569 432. The conclusion of the answer 569 433. The answer must be properly signed 570 434. When the answer miist be under oath 571 435 . When the answer must be under oath — further considered 572 436. How the answer should be verified 575 437. The sufficiency of the affidavit to be made to an answer 575 438. How the sufficiency of an answer may be raised and determined. . 577 439. Exceptions to an answer defined, and how they are taken 579 440. How exceptions to an answer are disposed of 581 441. When exceptions will lie to an answer 583 442. When exceptions to an answer will be sustained 584 443. The course pursuable by a defendant when exceptions are filed to his answer 585 444. The waiver of the right to except, and of exceptions, to an answer 586 445. When an answer may be filed 586 446. Where an answer may be filed 589 Table of Contents xxv Section Page 447. Vv'hat is a suflSclent filing of an answer 690 448. An answer praying affirmative relief 590 449. The requisites of an answer claiming aflSrmative relief 592 450. 'UTien an answer will be treated as a cross-bill 594 451. The answer in specific cases. — In the matter of account 595 452. The answer setting up a discharge in bankruptcy 596 453. The answer in the matter of fraud 596 454. The answer in the matter of injunctions 597 455. The answer in the matter of fraudulent conveyances 598 456. The answer in matters of divorce 599 457. The answer in matter of res ad judicata 601 458. The answer in the matter of a hona fide purchaser 601 459. The answer in the matter of the statute of frauds 602 460 The answer in the matter of the statute of limitations 603 461. The answer in the matter of usury 603 462. As to the exhibits filed with an answer — their purpose and eiTect. 605 463. The effect of an answer as evidence 606 464. The effect of an answer as evidence — further considered. — The answer must be responsive to the bill 607 465. The effect of an answer as evidence — further considered. — As to disclosures made by it 609 466. The effect of an answer as evidence — further considered. — An answer showing want of personal knowledge by the de- fendant 611 467. The effect of an answer as evidence — further considered. — When it constitutes no evidence for defendant, though positively denying the allegations of the bill 611 468. The effect of an answer in West Virginia 612 469. The effect of an answer in Virginia to a. bill to which the plain- tiff has waived an answer under oath 613 470. The evidence necessary to establish the allegations of the bill . . 614 471. Effect of an answer by an improper party to the suit 615 472. The answer of one defendant, as a rule, not evidence for or against a co-defendant 615 473. The effect of an answer of an infant 618 474. The effect of an admission by the answer of facts alleged in the bill 618 CHAPTER XXI THE REPLICATION 475. The definition and purpose of a replication in equity 620 476. The different kinds of replications 622 477. In what cases a general replication should be filed 623 478. When a special replication should be filed 624 xxvi Table of Contents Section Page 479. How new matter contained in a plea or answer, designed as a. defense to tlie bill, may be met and avoided 627 480. Effect of filing a replication to an answer 628 481. Effect of an omission to file a replication to an answer 629 482. When a replication may be filed 630 483. When it is not necessary to file a replication to an answer 631 484. Withdrawal of replication 831 CHAPTER XXII CONTINUANCE 485. As to continuances in equity 633 486. A^ to right of a defendant to a, continuance upon filing his answer 634 487. Continuance by new party against whom. suit has been revived. . 637 488. Continuance of a case when before a commissioner 638 489. Continuance because of tiie amendment of the pleadings 638 490. The matter of a. continuance rests in the sound discretion of the court 639 491. Continuance to procure evidence 640 492. Admissions of fact to avoid continuance 642. 493. Continuance because of mistake of parties or their counsel 642: 494. Inability of a party to prepare his ease for a hearing 643 495. Failure to give security for costs 644 496. Absence of counsel as a ground for continuance 644 497. Continuance to enable a party to take deposition 645. 498. Diligence to be shown in order to obtain a, continuance 645- 499. Newly-disoovered evidence as a ground for continuance 646 500. The application for a continuance. — Necessity for and how made. 646. 501. The effect of an order of continuance 647 CHAPTER XXIII DEPOSITIONS 502. The former method of taking evidence in chancery 649 503. The present mode of taking testimony in chancery 650 504. Depositions can be taken only in a, pending cause 653 505. The notice to take depositions 654 .506. What constitutes reasonable notice as to the time of taking depositions 655 507. Tlie sufficiency of the notice to take depositions 657 508. What party entitled to take depositions 660 509. The service of the notice to take depositions 660 510. The taking of the deposition 661 511. The adjournment of the taking of depositions 662 Table of Contents xxvii Section Page 512. By whom depositions may be taken 663 613. The attendance of the witness before the officer taking the deposition 663 SI 4. The taking of the deposition by or before the officer 664 615. The caption and certificate to tihe deposition 668 616. Filing depositions 671 617. Kecital in the decree that the cause was heard upon depositions. 671 618. At what stage of the cause a deposition may be taken 672 619. At what stage of the cause a deposition may be taken — further considered 674 620. Depositions can not be read in evidence except as to issues made up in the cause when taken 675 521. Wlien depositions may be taken in tt cause witliout the con- sent of the court 676 522j Exceptions to the depositions. — How taken 677 623. How exceptions to deposition passed on 677 524. Exceptions to a deposition because of tlie incompetency of the witness 678 525. How incompetency of evidence may be waived 678 626. All objections to evidence are waived but tliat excepted to 680 527. Objections to leading and other improper questions and tlie answers thereto 680 528. The suppression of a deposition 682 529. Who may take advantage of defects and irregularities relating to depositions 683 630. Lost depositions 683 631. Who may read a deposition 684 532. When deposition taken In one suit may be used in another.... 684 CHAPTER XXIV EVIDENCE 633. The nature and character of evidence used in a court of equity. . 687 534. Admissions in equity 688 535. Constructive admissions • made by the pleadings. — Unanswered allegations of the bill 689 636. Constructive admissions made by pleadings, further considered. — Averments in the answer, when and when not admitted. . 690 537. Constructive admissions made by the pleadings, further consid- ered. — Certain averments to be denied by affidavit 692 538. Actual admissions on the record. — Admissions made by the bill . . 694 5u9. Actual admissions on the record, further considered. — Admis- sions made by the answer 695 640. Actual admissions on the record, further considered. — Admis- sions made by the answer, further considered 696 xxviii Table op Contents Section Page 841. Actual admissions on the record, further considered. — Relieving from improvident admissions made in an answer 697 542. Reading the pleadings at the hearing of the cause to show the admissions made therein 698 543. Reading the answer of a codefendant 699 644. Matters judicially noticed need not be proved 609 545. Matters judicially noticed 700 546. Matters judicially noticed, further considered 701 547. Matters not judicially noticed 702 548. The principle underlying the doctrine of judicial notice 703 649. The competency of witnesses 704 550. When an interested party, or party to the suit, can not testify as a witness in West Virginia 704 551. When an interested party, or party to the suit, can not testify as a witness in West Virginia, further considered 70.5 652. When an interested party, or a party to the suit, can not testify as a witness in West Virginia, further considered 707 553. What is a personal transaction or communication with a de- ceased or insane person within the meaning of the law... 709 654. When a party incompetent to testify as a witness in Virginia. . . 711 555. When a party incompetent to testify as a witness in Virginia, further considered 713 656. When a party incompetent as a witness in Virginia where the contract is made with an agent 714 557. At what stage of the cause the competency of evidence is de- termined 715 558. Husband and wife as witnesses for and against each other in Virginia 716 559. Husband and wife as witnesses for and against each other in W^est Virginia 718 560. Competency of witnesses — further considered 718 561. As to the burden of proof generally 719 662. The burden of proof generally — further considered 720 563. Presumptions of law and fact 721 564. Presumptions of law and fact — further considered 723 665. The character of the evidence and burden of proof in certain cases. — In matters of account 72.> 506. In matters of divorce , 727 567. The character of the evidence and burden of proof in matters of fraud 728 668. In the matter of fraudulent conveyances 729 669. In the matter of fraudulent conveyances — further considered. — Badges of fraud 732 570. In the matters of judgments and decrees 732 571. In matters of mistake 733 572. In the matter of the contest of wills 733 Table of Contents xxix Section Page 673. In the matter of the contest of wills — further considered 735 574. In the matter of the contest of wills — further considered 736 575. Admissibility of parol evidence with reference to written instru- ments in certain cases 737 676. Admissibility of parol evidence with reference to written instru- ments in certain cases — further considered 740 577. The evidencte must be confined to the matters in issue 741 578. The proof must correspond to the case made in the bill 742 579. Effect of a decree based upon a conflict in evidence 744 CHAPTER XXV CONSOLIDATION AND HEARING OF CAUSES 580. Preliminary observations 746 581. When consolidation should be ordered 747 582. The mode of obtaining an order for consolidation 748 683. Preliminary and final hearings 748 684. When a cause may be heard 749 585. Matters of preliminary hearing 751 586. Preliminary hearing with reference to the pleadings in a cause.. 751 687. The final hearing of the cause 752 688. The hearing of a cause upon demurrer 752 589. When case may be lieard as to a part of the defendants 753 590. When a cause may be finally heard 754 691. What matters may be considered on the hearing of a cause 755 592. Certain matters that may be noticed or raised at the hearing of a cause 755 593. The manner of hearing a case 756 CHAPTER XXVT THE DECREE 594. Classification and definition of decrees 760 595. The difference in effect between an interlocutory and final decree 762 596. What decrees may be reviewed by appeal 765 597. Classification of final decrees 769 598. What orders and decrees entered in the cause are reviewable upon an appeal from a final decree 774 599. A decree may be final as to one party and not as to another. . . 775 600. Decrees entered in vacation 775 601. Jurisdiction of the court essential to the rendition of a decree.. 777 602. Jurisdiction of the court essential to the rendition of a decree further considered 779 603. No decree can be entered except that authorized by the pleadings . 780 XXX Table of Contents Section Page fi04. The effect of a decree 782 G05. Aa to the effect of recitals in a decree 784 606. Only the papers mentioned in a decree a part of the record in chancery 788 607. No decree can be rendered in the absence of necessary or proper parties 786 608 When a decree between codefendants may be rendered 787 609. Oonaemt decree, its effect, and how avoided 790 610. Decrees pro confrsso 792 611. Decreee pro conjcsno further considered 793 612. As to the effect of a decree pro confesso 794 613. When a personal decree may he rendered against a defendant.. 797 614 When a personal decree may be rendered — ^further considered... 798 615. Decree shguld be definite and certain 800 616. Conditions and reservations in a decree 801 617. The decree should adjust the rights of all the parties 803 618. Tlie decree in matters of account 803 619. The decree in cases of alimony 804 620 The decree in matters of attachment 806 6^1. The decree in the matter of the cancelation or reformation of contracts 808 622. The decree in the matter of the cancelation or reformation of contracts, further considered. — The removal of a cloud from title to real estate..... 810 623. The decree in the matter of contribution 812 624. The decree in the matter of corporations 813 625. The decree in the matter of creditors' suits 814 626. Tihe decree in the matter of creditors' suits — further considered. — The enforcement of judgment liens further considered. . . 815 627. The decree in the matter of creditors' suits — further considered. — The enforcement of judgment liens further considered. . . 817 628. The decree in the matter of creditors' suits furtlier considered. — The enforcement of judgment liens concluded 820 029. The decree in the matter of creditors' suits furtlier considered — Tlie administration of the assets of the estate of a de- cedent 823 630. The decree in the matter of creditors' suits further considered. — Setting aside fraudulent conveyances 824 631. The decree in the matter of creditors' suits further considered. — As to attempting to create a pref erenc'e among creditors . 825 632. The decree in the matter of divorce 826 G33. The decree in the matter of infants 828 634. Tlie decree in the matter of injunctions 830 635. The decree in the matter of interest 830 636. The decree in the matter of interest further considered. — Com- pound interest 831 Table of Contents xxxi Section Page 637. The decree in the matter of joint defendants 832 638. The decree in the matter of liens 835 639. The decree in the matter of liens further considered 837 640. The decree in the matter of lost instruments 838 641. The decree in the matter of new trials 839 642. The decree in the matter of partition 839 643 The decree in the matter of partnership 842 644. The decree in the matter of principal and surety 843 645. The decree in the matter of the specific performance of contracts . 845 646. The decree in the matter of trusts and trustees. — The- appoint- ment of a, trustee 847 647. The decree in the matter of trusts and trustees further consid- ered. — The removal of a trustee 847 648. The decree in the matter of trusts and trustees further consid- ered. — Instructions to the trustee 847 649. The decree in the matter of trusts further considered. — Mis- application or diversion of trust funds 848 650. The decree in the matter of usury 849 651. The decree in the matter of wills. — Contest of 850 652. The decree in the matter of wills further considered. — Construc- tion of 850 653. A judge interested in the cause can enter no decree therein 851 654. As to the court's reason assigned for the rendition of its decree. . 852 655. The decree can not exceed the demand made in the bill 852 656. As to a decree rendered upon a conflict of evidence 853 CHAPTER XXVII COMMISSIONERS IN CHANCERY 657. How commissioners in chancery are appointed, and their duties and powers 855 658. When a cause should not be referred to a commissioner 856 659. When a cause should be referred to a commissioner 859 660. \Vlien the reference of a cause to a commissioner is discretionary with the court , 862 661. Who may act a& commissioner 863 662. The order referring a cause to a commissioner 864 663. The order referring the cause to the commissioner further con- sidered 866 664. The notice of the time and place of taking the account 866 665. The parties entitled to appear before the commissioner 868 666. Adjournments by the commissioner 869 667. The introduction of evidence before the commissioner 870 668. The introduction of evidence before the commissioner further considered 872 xxxii Table op Contents Section Page 669. The rights of the parties as to the establishment and defense of claims before the commissioner 873 670. The report of the commissioner and its return 875 671. The report of the commissioner and its return further con- sidered 876 672. The report of the commissioner and its return further con- sidered 877 673. When a cause may be heard upon a commissioner's report 878 674. The confirmation of a commissioner's report 880 675. Objections to a commissioner's report for errors on the face thereof 880 676. Exceptions to a commissioner's report and when necessary 882 677. Efi'ect of not excepting to a commissioner's report 885 678. When exceptions may be filed to a commissioner's report 886 679. Who may file exceptions to a commissioner's report 888 680. The effect of a finding of a, commissioner as to a matter of fact upon a conflict of evidence 889 681. The effect of the finding of a commissioner as to a matter of fact upon a conflict of evidence further considered 890 682. The report when it contains alternative statements 892 683. When the report of a commissioner will be recommitted 892 684. When the report of a commissioner will be recommitted fur- ther considered 895 685. The efi'ect of an order of reference in a, creditor's suit 895 CHAPTER XXVIII ISSUES OUT OF CHANCERY 686. As to the right of a trial by jury in equity 897 687. When trial by jury matter of right in a court of equity 898 688. The directing of an issue out of chancery upon a conflict in the evidence 899 689. The directing of an issue out of chancery discretionary with the court 89!) 690. When the court shall direct an issue out oi' chancery 900 691. When an issue out of chancery should not be directed 902 692. When the court may either refer the cause to a commissioner or direct an issue to be tried by u, jury 904 693. When the court may disregard the verdict of the jury, and enter a decree contrary thereto 904 694. The issue of devisavit vel non 906 695. In whsit court the issue may be tried 906 696. As to the trial of the issue before the jury 907 697. Setting aside the verdict rendered upon an issue out of chancery. 908 Table op Contents xxxiii CHAPTER XXIX SPECIAL COMMISSIONERS Section Page (pi)8. The functions of a special commissioner and who may act as such 911 fl!)0. The commissioner must give bond 912 700. The effect upon Khe sale of the commissioner's failure to give bond 913 701. The court should prescribe the terms upon which the special commissioner shall sell 914 702. The notice of sale to be given by the commissioner 916 703. The manner in which the sale should be conducted 917 704. As to tlie adjournment of the sale 917 705. The commissioner can not bid or become a purchaser at the sale 918 706. The receipt of bids at the commissioner's sale 919 707. As to the withdrawal or rejection of bids 919 708. The enforcement of a bid made at a commissioner's sale 920 709. The interest of the purchaser in the property at a special com- missioner's sale 922 710. The commissioner's report of sale 024 711. Exceptions to the commissioner's report of sale 924 712. As to the confirmation of the commissioner's sale 928 713. Inadequacy of price as a ground for setting aside a judicial sale. . 929 714. Inadequacy of price as a ground for setting aside a judicial sale further considered 930 715. Inadequacy of price as a ground for setting aside a sale fur- ther considered 931 716. The eflect of the reversal of » decree of sale upon the title of a purchaser thereunder 932 717. The effect of the reversal of a decree of sale upon the title of a purchaser thereunder further considered 934 718. The rule of caveat emptor applies to judicial sales 935 719. As to rescinding a, judicial sale 938 720. The purchaser's right to the possession of property bought at a judicial sale 938 721. Hovr a purchaser may be compelled to pay the purchase money. . 938 722. How a special commissioner may be proceeded against for breach of duty 939 723. The disposal of the cash payment of tlie purchase money by the special commissioner 939 724. The removal of a special commissioner 940 725. The compensation of a special commissioner 940 726. Special commissioners for the assignment of dower 941 [2] xxxiv Table op Contents CHAPTER XXX INJUNCTIONS Section Page 727. By what judge or court an injunction may be awarded 943 728. The court having jurisdiction of a bill for an injunction U44 729. The clerk to w^liom the order awarding an injunction must be directed 947 730. The manner of applj'ing for an injunction 947 731. As to giving notice of the application for an injunction 948 732. The order awarding the injunction 950 733. The injunction bond 951 734. The injunction bond further considered 952 735. The injunction bond f urtlier considered 953 736. As to modifying or clianging the scope of an injunction 954 737. Under wliat circumstances an injunction ought to be dissolved.. 955 738. As to the continuance of a motion to dissolve an injunction... 957 739. As to the continuance of a, motion to dissolve an injunction further considered 959 740. Dissolution of an injunction because of Inches and defect of parties 962 741. When an injunction may be dissolved 963 742. In what jurisdiction an injunction may be dissolved 964 743. When notice of motion to dissolve necessary 965 744. As to the dismissal of the bill upon the dissolution of the injunction 965 745. The order dissolving the injunction 967 746. The ellect upon tlie injunction of the death of parties 968 747. Keinstatement of an injunction 969 748. As to awarding injunctions against actions at law 970 749. The final hearing of the injunction suit 972 750. Tlie final decree in an injunction suit 973 751. Tlie injunction order must be obeyed while in force 973 752. What constitutes tlie violation of an injunction 974 753. The violation of an injunction is punishable as a contempt of court 976 754. How the violation of an injunction is punislied 976 755. The procedure in matters of contempt for violating an injunc- tion 077 756. Effect of an appeal from an order dissolving an injunction... 979 757. What court has power to punish for contempt 079 758. The assessment of damages upon the dissolution of an injunc- tion 980 759. The assessment of damages upon the dissolution of an injunc- tion farther considered 9S1 Table of Contents xxxv CHAPTER XXXI RECEIVERS Section Page 760. The different kinds of receivers 984 761. Definition of a receiver, and tlie object of his appointment 984 762. In what cases a receiver will be appointed 985 763. In what cases a receiver will be appointed further considered.. 986 764. Appointment of a receiver while case is pending in an appellate court 990 766. Some general principles applying to the appointment of re- ceivers 990 766. Same subject, further considered 992 767. Same subject, concluded 993 768. As to the appointment of a receiver in vacation 993 769. Who may apply for the appointment of a receiver 994 770. Against whom the application for a receiver is made 995 771. Notice of the application for the appointment of a. receiver generally required 996 772. Upon whom the notice of the application for the appointment of a receiver must be served 998 773. How the application for the appointment of a receiver is made. . 998 774. Who should be appointed a receiver 1000 775. The vacating of tlie order appointing a receiver 1001 776. The requisite allegations of the bill for the appointment of a receiver 1002 777. The requisite allegations of the bill for the appointment of a, receiver, furtlier considered 1003 778. The hearing of the application for the appointment of a re- ceiver 1004 779. The order appointing a receiver 1005 780. As to suits by and against receivers 1008 781. As to the court granting leave to sue its receiver. — When leave to sue not necessary 1008 782. The bond and securty of the receiver 1009 783. The property over which ii receiver may be appointed 1010 784. The rights and powers of a receiver 1011 785. Powers not possessed by a receiver 1012. 786. As to the implied powers ot a receiver 1013 787. As to the discretion of a receiver touching his receivership 1015 788. As to the duties of a, receiver 1015 789. The receiver may ask the advice of the court as to his duties. . 1017 790. The compensation of a receiver 1017 791. The efl'ect of the appointment of a receiver 1018 792. The discharge of a receiver 1019 xxsvi Table of Contents CHAPTER XXXII ATTACHMENTS Section Page 793. As to attachments in equity 1022 794. Concurrent remedy at law and in equity as to attachments 1024 705. The affidavit for an attachment 1024 796. What a sufficient affidavit for an attachment 1026 797. Supplemental affidavit 1032 798. Amendments as to clerical errors and omissions in the affidavit. . 1033 799. Before whom the affidavit for an attachment may be made. 1034 SOO. By whom the affidavit may be made 1034 801. Certain omissions deemed fatal to the affidavit 1035 802. When the affidavit for an attachment may be made 1036 803. The endorsement to be made upon the summons 1036 804. The process in or order of attachment 1037 805. The attachment bond 1038 806. The levy of the attachment and the return thereof 1040 807. On what estate an attachment may be levied 1044 808. Equity practice as to attachments 1047 809. Who may defend an attachment. . . .' 1047 810. The defenses to the attachment. — Motion to quash 1048 811. What matters apparent on the record will operate to quash or abate the attachment 1049 812. Defenses to the attachment for matters dehors the record 1050 813. How issue on plea in abatement of the attachment is tried 1051 814. Burden of proof on trial of issue controverting the grounds of attachment 1051 815. As to the evidence on the trial of the issue controverting the grounds of attachment 1052 816. The efiect upon the suit of the failure of the attachment 1053 817. When objections to the validity of the attachment should be raised 1054 818. The efiect of giving bond whereby the property attached is re- turned to the defendant 1055 819. To whom the bond for the release of the property attached is payable and the penalty thereof 10.58 820. Where bond for release of attached property returned and filed. . 1058 821. Application of interest and profits of attached property, and dis- charge of attachment on defendant's giving bond 10.58 822. The care and custody of property attached 1059 823. How attaclied property that is expensive to keep or perishable may be sold 1060 824. Who may intervene in an attachment proceeding to contest its validity 1060 825. The intervener's petition in an attachment suit 1062 Table of Contents xxxvii Section Page 826. How' the matter arising upon the petition of an intervener in an attachment proceeding is tried 1002 827. The issue to be tried by tlie jury in cases of intervention in an attachment 1063 828. The trial of the intervener's case before the jury 1065 829. How a party may be summoned to answer as garnishee 106.') 830. Who may be garnisheed 1067 831. Same subject further considered 1068 832. The garnishee a necessary party to the suit in equity 1070 833. As to the defenses which may be made by the garnishee 1071 834. Proceedings upon the appearance of the garnishee 1072 835. As to the answer of the garnishee 1073 836. The answer of the garnishee further considered 1074 837. Nature of debt against garnishee to authorize a, decree against him 107.5 838. When garnishee may object to irregularities in the attachment proceeding 1076 839. Can be no decree against garnishee until plaintiff has established his claim against the debtor 1077 840. As to the priority of liens in attachment proceedings 1077 841. The decree against the garnishee 1078 842. Sale of attached realty 1070 Equity Procedure CHAPTER I THE COUNTY WHERE THE SUIT MAY BE BROUGHT I 1. General statutory regulations. § 2. The residence of the defendant as determining the county in which suit may be brought. § 3. The county in which the suit may be brought when «, corporation is the defendant. § 4. County wherein suit should be brouglit, to recover or subject land to the payment of a debt. § 5. The county in wliich a non-residont may be sued. § 6. The county in which an insurance company may be sued. § 7. The county in which suit should be brought wlien the state is the plaintiff. I 8. The county in whic* suit should be brought when the judge of the circuit is interested. I 9. As to the bringing of a suit in the county in which the cause of action or some part tliereof arose. { 10. Special statutory provisions. § 11. General observations as to the place or county in which suit may be brought. § 1. General statutory regulations. While the question as to the county or place where suit may or must be brought does not often arise so as to occasion embar- rassment or difficulty in determining this matter, as one of the essential features in the necessary course of procedure in the maintenance of a suit in equity, still its proper solution is not always free from difficulty. § 1 Equity Procedure 2 When the place where the suit may be instituted is prescribed by statute, the law, as thus laid down, must be observed,^ and the question of venue is purely a problem of statutory construc- tion. In Virginia, under a statute •= substantially similar to the West Virginia statute, it has been held that the venue of all actions, whether local or transitory, is fixed by the statute.' Since the Acts of 1882, it would seem that the same broad asser- tion maj' be made as to the West Virginia statute.* In West Virginia it is provided by statute " that any action at law or suit in equity, except where it is otherwise specially provided, may be brought in the circuit court of any county: First. Wherein any of the defendants may reside, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered or some part thereof is ; or Second. If a corporation be a defendant wherein its principal office is, or wherein its mayor, president, or other chief officer resides; or if its principal office be not in this state, and its mayor, president, or other chief officer does not reside therein, wherein it does business ; or Third. If it be to recover land or subject it to a debt wherein such land or any part thereof may be ; or Fourth. If it be against a non-resident of the state wherein he may be found, or may have estate or debts due him ; or Fifth. If suit be brought to recover a loss under any policy of insurance upon any property insured, in the county wherein the property insured was situated, and if it be to recover a loss 1 Vinal V. Core & Compton, 18 W. lief against non-residentg, the com- Va. 1, 19, "22; Little Eoek & 75. mon-law rule as to venue was still Stnith Ry. Co. v. Clifton, 38 Ark. in force as to them. The next year, 205. by Acts of 1882, c. 73, the fourth 2Va. Code, 1904, §§3214, 3215. clause of section 1, chapter 123, of 3 Va. & S. R. Co. V. Hollings- the Code, was added to the statute, worth, 107 Va. 359. 58 S. E. 572. providing that a non-resident may * In Vinal v. Core, 18 W. Va. 1, be sued in any county wherein he 19-23, decided in 1881, it was held may he found, that, since the statute was not suffi- o W. Va. Code, 1913, c. 123, § 1. ciently broad to give adequate re- 3 County Where Suit May Be Brought § 2 under any policy of insurance upon the life of a person, in the county wherein such person had a legal residence at the time when the right of action accrued; or Sixth. If it be on behalf of the state in the name of the attor- ney general or otherwise, wherein the seat of government is; or Seventh. If a judge of a circuit be interested in a case which, but for such interest, would be proper for the jurisdiction of his court, the action or suit may be brought in any county in an adjoining circuit, the county seat of which county is nearest the county seat of the county wherein such judge resides. Eighth." An action may be brought in any county wherein the cause of action, or any part thereof arose, although none of the defendants may reside therein. An examination of the statute discloses no less than eight distinct grounds or rules determining the county in which the plaintiff may or must bring his suit, each of which will be con- sidered under separate sections. § 2. The residence of the defendant as determining the county in which suit may be brought. Under this clause ^ of the statute it is clear that in all cases suit may be brought in the county where the defendant, or if two or more defendants, any of them, resides ; unless some other statutory provision expressly or impliedly requires that the suit shall be brought elsewhere. Restrictions imposed by other statu- tory provisions will be considered in subsequent sections of this chapter.^ If there be more than one defendant, the plaintiff can elect as to the county of any or either of the defendants in which to bring his suit,® although the subject-matter in controversy be 9 W. Va. Code, 1913, c. 123, § 2. the proceeding is in personam or T CI. 1, § 1, c. 123, Code, 1913. in rem, see post, §§ 4, 11, and cases 8 In particular, as to suits af- cited. fecting the title to land or status » Mathonican v. Scott, 87 Tex. of real property in general, usually 396, 28 S. W. 1063; Bush v. Camp- turning upon the question whether bell, 26 Gratt. (Va.) 403. §2 Equity Procedure joint and therefore necessarily against inseparable defendants." But it is held that the substantial defendant in a suit can not be deprived of his right to have the case determined in his own county, by joining other parties as defendants, who, though proper, are not necessary parties." The defendant in the county where the suit is brought, so as to authorize its institution there and serve other parties in differ- ent counties, must be a hona fide party to the suit and one whose interest is adverse to that of the plaintiff.'- When there are several defendants, and the court obtains jurisdiction over one of them in the county of his residence, it has jurisdiction over all the others residing within the state, by the issuance and service of process on them in any other county in the state.'''' And so, too, if it has jurisdiction of part of the defendants because of their residence in the county in which suit 10 Mathonican v. Scott, supra. 11 State, ex rel. Campbell v. King County Super. Ct., 7 Wash. 306, 34 Pac. 1103; Lewis v. Elrod, 38 Ala. 17. In Bush V. Campbell, supra, the defendant Bush, who was jointly sued with three other defendants, lived in Franklin county, while the other three defendants lived in Eoa- nolie county, so that Bush could only be brought within the juris- diction of Eoanoke county, where the suit was brought, by reason of the residence therein of the other three defendants, process having been sent from the county of Roa- noke to the county Franklin, and there served on the defendant Bush. At the trial the defendants residing in Roanoke county were discharged from all liability on the plaintiff's demand upon pleas of non est fac- tum, and still the court held that Bush was properly served with proc- ess and was properly sued in Roanoke county, and he alone was held liable to the payment of the demand of the plaintiflF. 12 Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080; Basye v. Brown, 78 Ky. 553; Achy v. Holland, 8 Lea (Tenn.) 510; Lewis v. Elrod, 38 Ala. 17; Cobbey v. Wright. 29 Neb. 274, 45 X. W. 460; Bush v. Camp- bell, 26 Gratt. (Va.) 403. "A summons can not rightfully be issued from one county to another, unless the party served in the coun- ty in which the action is brought has a real and substantial interest in the subject of the action, adverse to the plaintiff, and some substan- tial relief may be obtained against him, and the action has been right- fully brought in the county and as against the party served. Wells v. Patton, 50 Kan. 732, 33 Pac. 15. isLindley v. Cregelo, 121 Ind. 176, 22 N. E. 990; Urmston v. Evans, 138 Ind. 285, 37 N. E. 792. 5 County Where Suit Mat Be Brought § 3 has been brought, land of a non-resident who is the principal defendant in the same suit may be subjected to the debt by attachment, though such land lies in another county.^* The word "reside"" as used in the statute does not necessarily mean a permanent residence or domicile, but is evidently used in the same sense in wliich the word residence is used in the law of attachment ; ''' so that a party may be residing and doing business in one county, while holding his citizenship or permanent resi- dence in another county, or even in another state or country^'' If a person so act as to make it doubtful in which of two places he does reside, he may be sued in either." A town is a resident of the county in which it is located.'* In all instances, the time of the residence, for purposes of venue, corresponds with the date of issuance of the summons, and not with the date of service upon the defendant. '" § 3. The county in which the suit may be brought when a cor- poration is the defendant. A suit against a corporation may be instituted in the county wherein its principal office is, or wherein its mayor, president, or other chief officer resides ; or if its principal office be not in this state, and its mayor, president, or other chief officer do not reside in the state, then it may be sued in any county in which it does business.-" When a corporation has its principal office "Porter v. Young, 85 Va. 49, 6 Pearson v. West, 97 Tex. 238, 77 S. E. 803. S. W. 944. 15 See Hogg, Eq. Princp., § 38, pp. is Fitzgerald v. .\rd, 63 Iowa 104, 54, 55; Oarr v. Remele, 74 Wash. 50 Am. Rep. 733, 380, 133 Pac. 593. The residence i' Ansbacher v. DeXevue, 45 La. must be actual, though it need not Ann. 988, 13 South. 396; Farres v. be continuous. Harrison v. Nat. Young, 69 Tex. 482, 6 S. W. 800. Banli of Monmouth, 108 111. App. is Buck v. City of Eurelca, 97 Cal. 493, 69 N. E. 871. It is not changed 135, 31 Pac. 845. by temporary absence. _ Louisville is Mitchell v. Allen, Stew. 4 P. 6 N. E. Co. V. Mitchell, 162 Ky. (Ala.) 247. For special statutory 253, 172 S. W. 527. Where a de- provisions, see post, § 10. fendant resides in one county a -'>W. Va. Code, 1913, c. 123, § 1, part of the year and in another cl. 2. See also, Ferguson v. Grot- county the remainder of the year, toes Co., 92 Va. 316, 28 S. E. 761. he may be sued in either county. § 4 Equity Procedure G in one county, and its president or other chief officer resides in another, it may be sued in either county.-^ But, if a cause of action arise against a railroad, canal, turnpike, telegraph or insurance company, or any other corporation in one county, and its principal office be in another or its president or other chief officer resides in another, suit may, nevertheless, be brought in the county wherein the cause ot action arose, and process may be served in any other county in the state. ^^ § 4. County wherein suit should be brought, to recover or sub- ject land to the payment of a debt. This clause of the statute prescribing the venue of suits, em- bracing as it does, all actions or suits for the recovery of land, or to subject it to a debt,^^ is a broad and comprehensive one. It does not include, however, the actions of ejectment and un- lawful entry and detainer, by force of its own terms, because these actions are provided for by the express language of another clause of the same section of the statute.^* Under such a pro- vision of law as the one now under consideration, a suit to enforce a vendor's lien, or that of a judgment or mortgage or mechanic,^"* should be brought in the county wherein the land lies.^" A suit to remove cloud and quiet title is local in its nature, and the jurisdiction of the court is determined by the " Ballard v. C. & O. Ry. Co., 42 =5 Prior to Acts of 1917, it was W. Va. 1, 24 S. E. 602. specially provided that a suit to 22 This is by virtue of § 2 of ec. enforce a mechanic's lien should be 123 and 124 of W. Va. Code, 1913. brought in the county wherein the The words "or any other corpora- account is filed. See W. Va. Code, tion" were added to § 2, c. 124, by 1913, c. 7.5, § 10. Acts of 1917, Acts of 1903, 1-. 111. See Ballard whether inadvertently or not can V, C. & O. Ry. Co., 42 W. Va. 1, not be determined, amended and re- 24 S. E. 602; Harvey v. Parkers- enacted this entire chapter, omit- burg Ins. Co., 37 W. Va. 272, 16 S. ting §10; thus, seemingly, leaving E. 580; B. & 0. R. R. Co. v. Galla- the question of venue to general hue's Admrs., 12 Gratt. (Va.) 655. statutory provisions. See Acts of 23 W. Va. Code, 1913, c. 123, §1, 1917, c. 6; Barne's W, Va. Code, cl. 3. 1918, c. 75. 24 W. Va. Code, 1913, c. 123, § 1, 26 Urton v. Woolsey, 87 Cal. 38, cl. 1. 25 Pac. 154; Falls of Neuae Mfg. County Where Suit May Be Brought §4 situs of the land.-' A suit against non-residents for establish- ment or vindication of an equitable title to land must be brought in the county in which the land as to which relief is sought, or some part thereof, is situated. ^^ But unless the decree sought to be obtained is to affect the land directly, the suit need not necessarily be brought in the county where the land is located.^' Thus if the decree affects only the person of the defendants, as where suit is brought by the grantor in a deed absolute on its face to have it declared a mortgage, it may be brought in the county in which the grantee resides.^" So a suit to set aside a fraudulent conveyance is not local and may be brought in the county of the defendant's residenee.^^ Likewise a suit for the rescission of a contract for the sale of real estate may be brought in the county where the defendant resides.'^ And a suit to follow trust funds invested in lands need not be brought in the county where the land lies."^ And in any case involving fraud, trust or contract, the jurisdic- Co. V. Brower, 105 N. C. 440, 11 S. E. 313; Carr v. Lewis Coal Co., 96 Mo. 149, 8 S. W. 907, 9 Am. St. Rep. 328 and note; Marcum v. Pow- ers, 10 Ky. Law Rep. 380, 9 S. W. 255; Orcutt v. Hanson, 71 Iowa 514, 32 N. W. 482. 27Tennant's Heirs v. Fretts, et al., 67 W. Va. 569, 68 S. E. 387, 29 L. R. A. (N.S.) 625, 140 Am. St. Rep. 979. Such a suit may be maintained against a non-resident on an order of publication. Patton V. Eiclier, 85 W. Va. 465, 102 S. E. 124. 28 Wirgman, et al. v. Provident Life & Trust Co., 79 W. Va. 562, 92 S. E. 415. 29, Lawrence v. DuBois, 16 W. Va. 443, 456: Enos v. Hunter, 4 Gil- man (111.) 211. 30 Lawrence v. DuBois, 16 W. Va. 443. 31 Johnson v. Gibson, 116 111. 294, 6 N. E. 205; Massie v. Watts, 6 Cranch. (U. S.) 148, 3 L. Ed. 181; Eawles v. Carr, 17 Abb. (N. Y.) Pr. 96; Guerrant v. Fowler, 1 Hen. & M. (Va.) 5, 6. See also, 40 Cyc. 59 (B| and cases cited. It would be otherwise of course, if, as usual- ly is the case, the suit sought at the same time to cancel a fraudulent conveyance and subject the land to a debt. 3-' Kendrick v. Wheatley, 3 Dana (Ky.) 34; Woodcock v. Barrick, et nl., 79 W. Va. 449, 91 S. E. 396. In the latter case, the defendants resided in Wetzel county. West Vir- ginia, and the land was situated in the state of Ohio. It was held that a court of one state may com- pel persons subject to its jurisdic- tion to make personal conveyances of land in another state, but it has Ipi'cn held in Virginia that the suit may also be brought in the county where the land lies. Hull v. Fields, 7f) Va. 594. ■:■■ Whittaker v. Whittaker, 10 Lea (Tenn.l 93. § 5 i:iQuiTY Procedure 8 tion of a court of equity is sustainable wherever the person can be found, although lands not within the jurisdiction of the court may be affected by the decree. ^^ Inasmuch as suits upon contracts have always been treated ns transitory, and are equally so, whether they relate to real or per- sonal property,^^ a suit for the specific performance of a con- tract for the purchase or sale of real estate may be brought in the county of the defendant's residence,'* or even in a county or state, other than that in which the land may lie, if the defendant can be properly served with process in such other county or fitate.^' § 5. The county in which a non-resident may be sued. Under this clause of the statute '' may be embraced suits against natural persons and corporations. The law is plain that suit against a non-resident may be brought in any county in which he may be found and process served upon him.^' This is so, though only one of the defendants be a non-resident and 3* Davis V. ]\I(]niss, 76 Va. 21. nants are required to be performed 3'' Siitplien V. Fowler, 9 Pai« Idem, cl. 6. sswhen a sale is made, with no 57 W. Va. Code, 1913, c. 123, § 1, place of payment agreed upon, fail- cl. 7. ure to pay gives rise to a cause of 58 Graham v. Citizens' National action at the seller's place of busi- Bank, 45 W. Va. 701, .32 S. E. 245. ness. Danser v. Dorr, 72 W. Va. as Idem. 430, 78 S. E. 367. But the cause «o McConnaughy & Co. v. Bennett's of action arises at the place of de- Exrs., 50 W. Va. 172, 40 S. E. 540. livery, where there is a breach of See post, § 11. duty to deliver goods in a good con- ei Harvey v. Parkersburg Ins. dition. Norfolk & W. R. E. Co., Co., 37 W. Va. 272, 16 S. E. 580. et al., v. Crull, 112 Va. 151, 70 S. 82 Idem,. E. 521. 8* W. Va. Code, 1913, c. 123, § 2. § 10 Equity Procedure 12 from the Code of Virginia and, with the exception of the words "or corporation," is identical with that contained in the present Code of that state."" In a Virginia decision "" it is held that the word "action," as used in a different section of the Code of Virginia, applies to actions at law, and not to suits in equity. So that it may be that section 2 of chapter 123 of the Code, 1913, from which the words "suit in equity" are omitted, ex- cludes equity causes from its operation.'^ The question has never been directly passed upon either by the courts of this state or those of Virginia, so far as our examination of the decisions extends. § 10. Special statutory provisions. In divorce suits, the plaintiff may sue either in the county where the parties last cohabited, or in the county where the defendant resides, or, if the defendant is a non-resident of the state, in the county in which the plaintiff resides.*' However, the venue of a suit for maintenance, without divorce, is not goverened by the divorce statutes, but by the laws of venue relating to vindication of ordinary legal or equitable rights."' An injunction suit, unless the injunctive relief sought be merely ancillary to other matter of equitable juridiction,'" must be brought in the circuit court of the county in which the judgment to be enjoined is rendered, or the act or proceeding to be inhibited is to be done, is doing or is apprehended.'' A partition suit,'^ <" Va. Code, 1904, § 3215. habited in such county. Jennings «s Dawson v. New York, etc., E. v. McDougle, 83 W. Va. 186, 98 S. Co., 96 Va. 733, 32 S. B. 778. But E. 162. see contra, Hevener v. Hannah, 59 «» Lang v. Lang, 70 W. Va. 205, W. Va. 476, 53 S. E. 635. 73 S. E. 716, In this case, suit 81 See 5 Va. Law Reg. 46 ; Burks, was brought in the county where PI. &, Pr., 284, note. debts were due the non-resident de- es W. Va. Code, 1916, c. 64, § 7. fendant. The ground of venue must be plain- 'o State v. Fredlock, 52 W. Va. ly alleged in the bill. An allega- 232, 43 S. E. 153. tion that the desertion occurred in 'i W. Va. Code, 1913, t. 133, | 4. a certain county is not a sufficient 72 w. Va. Code, 1913, c. 79, $ I. allegation that the parties last co- 13 County Where Suit May Be Brought § 11 a suit to sell land for the benefit of the school fund," or a suit to lease, sell or encumber the estate of an infant or insane person,"* should be brought in the county in which the land or some part thereof, is situated. For other special statutory pro- visions as to venue, less frequently the subject of general in- quiry, the statutes may be consulted. '^ § 11. General observations as to the place or county in which suit may be brought. At common law all actions were either local or transitory." Real and mixed actions were local ; personal actions were transi- tory.'^ This classification still obtains in West Virginia, but as modified by statute ; '* and this modification places suits in equity, as well as actions at law, within the entire purview of the statute, '^ as we are now inclined to think, with the barely possible exception of the operation of section 2 of chapter 123 of the Code as to suits in equity, but, as we believe, this includes suits in equity also. By the common law transitory actions were properly brought against a party wherever he could be found and served with process ; *" but under the statute of West Virginia such actions, whether at law or inequity, can only be brought in the county wherein the cause of action, or some part thereof, arose, or in the county wherein the defendant resides ; unless the defendant 73 W. Va. Code, 1913, c. 105, §21. idem, c. 37, §4; suits to enforce 74 W. Va. Code, 1913, e. 83, §2. tax liens, idem, c. 31, §1; suits 75 Suits against a corporation to against promoters, etc., idem, c. 55B, collect a license tax, W. Va. Code, §§1, 15; suits against trust, guar- 1913, c. 32, § 136; suits to effect anty and surety companies, idem, drainage of lands, idem, c. 80, § 10; c. 54C, § 16. suits to invest funds of an infant, 'o Opinion of court in Vinal v. idem, c. 82, §12; suits to es- Core, et al., 18 W. Va. at p. 20. tablish lost records or papers, '^ Idem. idem, c. 130, §17; suits to enforce ^» Idem. the payment of money due the state, '^ See the language of § 1, c. 123 idem, c. 35, §2; suits to enforce of the Code, 1913, and what is said claims against the state, idem, c. 37, as to § 2 thereof, ante, % 9. I 1 ; suits in which state officers or 8o Opinion of the court in Vinal public corporations are parties, v. Core, et al., 18 W. Va. 1. § 11 Equity Pkocedure 14 be a non-resident," or the suit be for a divorce, or the suit or action may be brought elsewhere under the provisions of some special statutory enactment. We have added to the class of local actions all those suits v^hich have for their objects the subjection of land to the pay- ment of debt,^^ which include those to enforce the liens of ven- dors, or judgments, mortgages, mechanics and laborers; and for the partition of real estate. The various clauses of the statute declaring where suit may he brought are not all to be construed as necessarily exclusive.'^ Thus, where the cause of action arises in one county and the defendant resides in another, the suit may be brought in either county.** So where an insurance company is defendant, the suit may be hrought in the county where the property in- sured was situated, or in the county in which its principal office is located, or the county in which its chief officer resides,*' or where the cause of action or any part thereof arose.** And, also, when the judge of a circuit is interested in the suit, as where he himself is the plaintiff therein, the suit may be brought in his own circuit in the county of the defendant's residence, or in the county of an adjoining circuit as provided by statute.'^ It has been held, both in Virginia *^ and in West Virginia,*' that a suit to recover land or subject it to a debt may be brought 81 Mahany v. Kephart, et al., 15 heimer Co. v. Elfant, 63 W. Va. 99, W. Va. 620. 59 S. E. 892. »2Ante, §§4, 10. 85 Morotock Ins. Co. v. Pankey, 83 6 Va, Law Eeg. 475, 576, note. 91 Va. 259, 266, 21 S. E. 487. 84 Hull V. Fields, 76 Va. 594, 596. ss Ante, §§3, 6. But if jurisdiction is based solely on 8^ Harrison, et al. v. Wisler, 98 the fact that the cause of action arose Va. 597, 6 Va. Law Eeg. 471, 36 in the county, and the defendant be S. E. 982. The latter case holds not a railroad, canal, turnpike, tele- that the word "may" (at the begin- graph, insurance company, or other ning of section 1, chapter 123, W. corporation, process can not be di- Va. Code) does not mean "must." rected to any other county. Hence, 88 Clayton v. Henley, 32 Gratt. the defendant must be found and (Va.) 65; Burks, PI. & Pr., 283-4; served within the county wherein 6 Va. Law Eeg. 475. the suit is brought. Netter-Oppen- sd Eader v. Adamson, 37 W. Va. 582, 595, 16 S. E. 808! 15 County "Where Suit May Be Brought § 11 either in the county where the land is or in the county where one of the defendants resides. Whatever may still be the weight of authority in Virginia, this doctrine seems to have been repudiated in West Virginia; partly in the light of statutory construction, and partly on the distinction between local and transitory actions.'" 90 Lawrence y. DuBois, 16 W. Va. Provident Life & Trust Co., 79 W. 443, 455-6; Tennant's Heirs v. Va. 562, 92 S'. E. 415; Wayland Oil Fretts, 67 W. Va. 569, 573, 68 S. E. & Gas Oo. v. Eummel, 78 W. Va. 387, 29 L. E. A. (N.S.) 625, 140 196, 8 S, E. 741. Am. St. Kep. 979; Wirgmeux y, CHAPTER II THE COMMENCEMENT OF A SUIT AND THE PROCESS RELATING THERETO § 12. Suit in equity is brought by the issuance of a summons. § 13. The diiicer or person to whom process commencing suit may be directed. § 14. The service and return of the summons. § 15. Service of summons upon a natural person. § 16. Service of process upon persons under disability. § 17. Service of summons upon a corporation. § 18. How process may be served upon a corporation that has not com- plied with the requirements of statute. § 19. The acceptance of the service of a summons. § 20. Service of process by order of publication on a natural person. I 21. Service of process by order of publication upon a corporation. § 22. There can be no personal decree against a defendant upon whom process is served only by order of publication. § 23. Personal service of process on non-resident defendants. I 24. How process may be served upon an unincorporated common carrier. § 25. How an order of publication is posted and published, and what the order must state. § 26. As to effect and essentials of the return of the service of process. § 27. The alteration or amendment of the process. § 28. Void and voidable process. • § 29. Amendment of process after a plea in abatement thereto. § 30. How defects in the process and its return are reached. § 31. Who may take advantage of defect in process or its execution. § 32. Amendment of the return to the process. § 33. Alias process and when it may be issued. § 34. The waiver of process and the service thereof. § 35. The recitals in a decree with reference to the process commencing the suit. § 36. Time given defendant in which to enter his appearance after execu- tion of process. § 12. Suit in equity is brought by the issuance of a siunmons. It is said that there is no lis pendens in equity until the sum- mons has been issued and served and the bill filed, but that 16 17 Process Commencing Suit § 12 when the bill is filed, the lis pendens relates back to the date of the service of the summons and takes effect from that time.'^ If this doctrine still obtains with us it must be with reference alone to the matter of a lien created by the pendency of a suit, the validity of the lien depending upon these three things, and not as to what constitutes the institution of the suit, inasmuch as the statute in the Virginias is explicit in declaring that "the process to commence a suit, shall be a writ commanding the officer to whom it is directed, to summon the defendant to answer the bill or action. ' ' ^ In United States Blowpipe Co. v. Spencer,' Brannon, J., in the course of his opinion, in which he concludes that the pen- dency of a suit in equity does not date from the service of the summons, says: "This rule is based on the English chancery practice, that from the fact that never till bill filed did writ issue, and the mere filing of bill before writ was no suit"; and the court, speaking through its learned judge, then holds that the pendency of an action at law or suit in equity dates from the issuance of the summons and not from the time of its service, so that the suit is commenced by the issuance of the summons.* The plaintiff, his attorney, or agent directs the summons to be issued, ° by means of a precipe which he lodges or files with the clerk of the circuit court in which the suit is to be brought, the form of which appears further along in this work.' It may be well to observe here that it is a firmly settled rule of law that no process can extend beyond the territorial juris- 1 Harmon v. Bryan, 11 W. Va. M6 W. Va. 590, 33 S. E. 342. 511; Newman v. Chapman, 2 Rand. 4, See also, Lambert v. Ensign Mfg. (Va.) 93, 14 Am Dec 766;_French ^ ^^ ^ ^^ ^ 2g S j, 43 V. buccessors of i^oyal (_o., o Lieigli ' (Va.) 627; Stone v. Tyree, 30 W. Lawrence v. Winifrede Coal Co., 48 Va. 687, 5 S. E. 878. But see Geiser W. Va. 139, 35 S. E. 925; Oil & Mfg. Co. V. Chewning, 52 W. Va. Qas Well Sup. Co. v. Gartlan, et ah, f '^'r** Ik w v^" i^r ^9%"" V 58 W. Va., 267, 52 S. E. 524. Eardin, 85 W. Va. 145, 102 &. E. ' ' 295 ' Abney v. Ohio Lumber & Min- 2'w. Va. Code, 1913, c. 124, §5. ing Co., 45 W. Va. 446, 32 S. E. The same law obtains in Virginia. 256; Wilson v. Madox, 46 W. Va. Va. Code, 1904, § 3223. See 1 Bart. 641 33 S E 779 Cb. Pr. 229. /p„^^_ J 915 § 13 Equity Procedure 18 diction of the court from which it emanates,' and that there can be no service of a summons upon a defendant outside of the state in which it is isvsued so as to give the court jurisdiction of the person of such defendant.* Service of process must be within the jurisdiction of the cOurt as prescribed by statute to render it a valid service and confer jurisdiction upon the court so as to render a personal decree against the defendant," unless the defendant voluntarily appears to the cause or stipu- lates in writing to accept such service as regular.^" The process does not issue on the order of the court ; ^' so that, whether the court is in session or vacation, the clerk's office is alway^ open for the purpose of issuing process, to commence an action or suit." § 13. The officer or person to whom process commencing stiit may be directed. If suit be brought in the eotinty in which the cause of action or some part thereof arose,^^ and jurisdiction be based solely on that fact, the process can be directed only to the officer of that county;'* unless a railroad, canal, turnpike, telegraph, insur- ance company or other corporation be defendant,''* when it may be directed as to this latter class of defendants to the sheriff 7 Harkness v. Hyde, 98 U. S. 476 ; lo Dunn v. Dunn, i Paige Ch. ( N. United States v. American Lumber Y.) 425, 3 Law Ed. 499 and note; Co., 85 Fed. 827; White, et al. v. White, et at, v. White, et al., 66 White, et al, 66 W. Va. 79, 66 S. W. Va. 79, 66 S. E. 2. E. 2. For effect of personal service n Abney v. Ohio Lumber & Min- outside of the state on a non-resi- ing Co., 45 W. Va. 446, 32 S. E. dent, see post, §23. 256. 8 1 Barbour, Ch. PI. 51; Dunn v. i-^ Idem. Dunn, 4 Paige Ch. (N. Y.) 425, 3 is w. Va. Code, 1913, c. 123, §2. Law Ed. 499 and note; Harding v. "W. Va. Code, 1913, c. 124, §2; Alden, 9 Me. 140, 23 Am. Dee. 549; Warren v. Saunders, 27 Gratt. (Va.) Ableman v. Borth, 62 U. S. 506; 259; Harvey v. Parkersburg Ins. White, et al. v. White, ct al, 66 W. Co., 37 W. Va. 272, 16 S. E. 580; Va. 79, 66 S. E. 2. Netter-Oppenheimer Co. %, Elf ant, 9 See same citations. 63 W. Va. 99, 59 S. E. 892, 15 W. Va. Code, 1913, c. 124, § 2. 19 Process Commencing Suit § 13 of any county.^' If, however, there are two or more defendants and service of process is made in the county in which one of them resides and in which the suit is pending, then the process for the other defendant or defendants may be sent to and served in any other county or counties in the state.'' If the suit be brought under section 1 of chapter 123 of the Code, 1913,^* the process may be directed to the sheriff or other proper officer of any county wherein the defendant may be properly served/'' Thus if the suit be one to recover land it may be brought in the county where the land lies and the process directed to the sheriff of another — the defendant's residence — and served in such latter county.^" If the defendant be a natural person, the service may be, and usually is, made in the county of his residence ; -^ if a corporation, in the county wherein the particular circumstances, under provisions of the statute, require service to be made. If there is any doubt as to the proper place of service, process may be directed to the sheriffs of different counties for service upon the same person, as a precaution against failure of service.^- When a suit for divorce is brought in the county where the parties last cohabited, process may be directed to the sheriff of any other county.^^* If process appear to be duly served and good in other re- spects, it shall be deemed valid, although not directed to any • 16 Harvey v. Parkeisburg Ins. Co., 20 Hull v. Fields, 76 Va. 594 ; 37 W. Va. 272, 16 S. E. 580. Since Quesenberry v. People's Bldg., L. & the Acts of 1903, the exception noted S. Assn., 44 W. Va. 512, 30 S. E. applies to all corporations. State 73. V. Citizens' Trust & Guaranty Co., 21 But there is no provision re- 72 W. Va. 181, 77 S. E. 902. The quiring that a defendant be served Virginia statute is not so broad. in the county of his residence. See Va. Code, 1904, § 3220. Venue and place of service should 1' See ante, § 2. not be confused. Quesenberry v. 18 In Virginia under § 3214, Code, People's Bldg., L. & S. Assn., 44 W. 1904. , Va. 512, 30 S. E. 73. 19 Quesenberry v. People's Bldg., 22 See post, §17. Also see State L. & S. Assn., 44 W. Va. 512, 30 v. Citizens' Trust & Guaranty Co., ,S. E. 73. See opinion of court in 72 W. Va. 181, 77 S. E. 902. Rorer v. People's B., L. & S. Assn., 22a Jennings v. McDougle, 83 W. 47 W. Va. 1, 3, 34 S. E. 758. Va. 186, 98 S. E. 162. § 14 Equity Proceduke 20 officer, or if directed to an officer, though executed by any other to whom it might lawfully have been directed.^*^ § 14. The service and return of the summons. When the summons has been properly issued, which is done by the clerk, the next step in the progress of the suit is its due service, the object of which is to bring the party into eourt,^* and which, unless waived, is absolutely indispensable to tho jurisdiction of the court. ^^ Of course, it must be properly re- turnable; that is, within ninety days after its date, to the court on the first day of the term, or in the clerk's office to the first Monday in the month, or to some rule day.^" Accordingly when a demurrer to a bill has been sustained, and leave granted the plaintiff to file an amended bill at rules, the summons may be issued and made returnable to rules before the amended bill is filed. ^' Care should be observed to see that the process is returnable as the law prescribes, because if returnable to a day which is not a lawful return day it is void.-^ It must not be returnable to any other day or time, notwithstanding the statutory provision which declares that "process awarded in court may be returnable as the court shall direct."^' This clause in the statute does not contemplate the original process 23 W. Va. Code, 1913, c. 124, § 2. 27 Wilson v. Maddox, 46 W. Va. But it may be quashed if directed 641, 33 S. E. 779. to a sheriflF who is disqualified. 2S Coda v. Thompson, 39 W. Va. Hansford v. Tate, 61 W. Va. 207, 67, 19 S. E. 548; Kyles v. Ford, 56 S. E. 372. 2 Rand. (Va.) 1; Crowell v. Gal- 24 The Bank of the Valley v. The loway, 3 Neb. 215; Briggs v. Sney- Bank of Berkeley, 3 W. Va. 386; ham, 45 Ind. 14, Sabell v. McCurdy, Mahany V. Kephart, 15 W. Va. 609; 77 Va. 763; Fisher v. Crowley, ^ Ferrell v. Ferrell, 53 W. Va. 515, 57 W. Va. 312. 50 S. E. 422. But 44 S. E. 187. ambiguity as to the return day will 25 Chapman v. Maitland, 22 W. be aided by the intent of the stat- Va. 329; Dorr V. Rohr, 82 Va. 359; . ute. Town of Point Pleasant v. Dunn, et nl v. Bank of Union, et Greenlee, et al., 63 W. Va. 207, 60 at, 74 W. Va. 594, 82 S. E. 758. S. E. 601; Johnston v. Pearson, 121 20 W. Va. Code, 1913, c. 124, §2; Va. 453, 93 S. E. 640. Lambert v. Ensign Mfg. Co., 42 W. 29 W. Va. Code, 1913, e. 124, § 2. Va. 813, 26 S. E. 431. 21 Process Commencing Suit § 14 or summons to commence an action or suit,'" but process found necessary by the court to the proper disposition of a case, which has been so far matured as to place it upon the docket of the court, and includes scire facias, to revive, rules to show cause, etc., as well as process for new parties found to be necessary to a proper hearing of the cause. ^' Process may, in West Virginia, be served by an officer, such as a sheriff or his deputy or by a constable,'- or by any credible person ; '' and in Virginia, the statute is substantially the same, except that in divorce proceedings process and notices must be served by an officer.^* But if service be made by a private person the return thereon is not conclusive, ^^ as it is when made by an officer;'" and a summons commencing a suit may issue on, be returnable to, and served on the same first Monday in a month, if such Monday be a rule day.''^ But the law as to this in Virginia is otherwise. In that state the process must issue prior to the return day, but may be served either on or before the return day thereof.'' While the summons must be served before the expiration of the return day,'^ the service is valid so Abney v. Ohio Lumber & Min- though there has not been any prior ing Co., 45 W. Va. 446, 32 S. E. return of not e.xecuted by an au- 256. thorized officer. Power to serve is 31 Idem. not limited to alias or pluries proc- 32 The statute specially provides ess. Hollandsworth v. Stone, 47 W. for appointment or designation of Va. 773, 35 S. E. 864. a constable or other person to act 34 Va. Code, 1904, §3224. in cases where the sheriff is dis- 35 Peck v. Chambers, 44 W. Va. qualified. W. Va. Code, 1913, c. 270, 28 S. E. 706. 41, §§ 1, 2. It would seem that in ^o Post, §26. West Virginia if a constable serves 3? Foley v. Euley, 43 W. Va. 513, process of the circuit court, except 27 S. E. 268; Spragins v. West. Va., in these special instances where he (1 & P. Ey. Co., 35 W. Va. 139, 13 acts as an official substitute, be acts S. E. 45. merely as a private citizen. An- 33 Koel v. Noel, 93 Va. 433, 25 S. drews v. Fitzpatrick, 80 Va. 438, 16 E. 242; Lewis v. Com., 106 Va. 20, S. E. 278. 54 S. E. 999. 33 Peck V. Chambers, 44 W. Va. as Fletcher, Eq. PI. and Pr., § 124, 270, 28 S. E. 706. Aiid any cred- citing. Draper v. Draper, 59 111. 119; ible person may serve a. summons Lofland v. .Jefferson, 4 Har. (Del.) or other process, or a legal notice, 303; Crews v. Garland, 2 Munf. § 15 Equity Procedure ■ 22 if made before 12 o'clock at night of tliat day.*" As a sheriff has no authority to execute process outside of his bailiwick, the presumption is that it was executed within his bailiwick, when the contrary does not appear from the return."^ But no such presumption is indulged in favor of a private person who serves process, and his return must show affirmatively the place of service/^ And it must not be overlooked that a summons can neither be issued nor served on Sunday,^^ and that a summons commencing a suit so issued is void,"** as well as the service thereof on such day.*° § 15. Service of summons upon a natural person. The statute of West Virginia *' provides that a summons may- be served as a notice is served, which, when no other particular mode is prescribed, may be by delivering a copy thereof in writing to the party in person ; " or if he be not found, by de- livering such copy at his usual place of abode, to his wife, or to any other person found there who is a member of his family, and above the age of sixteen years, and giving information of the purport of such copy to the person to whom it is delivered ; '^ if neither his wife, nor any such other person be found there, (Va. ) 491; Blodgett v. Town of ceptions to the general rule, as Brattleboro, 28 Vt. 695; Ferguson where a person is escaping from V. Ross, 5 Ark. 517. custody. W. Va. Code, 1913, c. 41, 40 1 Hoffman. Ch. Pr. 104; 1 Bar- § 15; idetn, e. 106, § 8. Process re- bour, Ch. Pr. 51. Time is com- turnable on a legal holiday may be puted by excluding the first day and served either on that day or on the including the last. W. Va. Code, next ensiling secular day. Priehard 1913, c. 13, § 12. & Co. V. McGraw Oil & Gas Co., «i Guarantee Co. v. First Nat. et al., 66 W. Va. 300, 66 S. E. 360. Bank, 95 Va. 480, 28 S. E. 909. ibidem. •15 Lynch v. West, 63 W. Va. 571, ^s i Hoffman, Ch. PI. 51; Alder- 60 S. E. 606. son, Judicial Writs and Proc. 172. *3 Alderson, Judicial Writs and « w. Va. Code, 1913, c. 124, § 6. Proc, 29, 30. Sunday is the only 47 Idem, c. 121, § 1. The state non-judicial day. Logan v. Ballard, of Virginia has the same statute. 61 W. Va. 526, 57 S. E. 143. How- Va. Code, 1904, § 3207. ever, there are special statutory ex- 4S Idem, 23 Process Commencing Suit § 15 and he be not found, by leaving such copy posted at the front door of such abode/^ * In Virginia, the phrase "usual place of abode," as used in this statute is synonymous with the word "home"'" and also with the word "residence"; '^^ but in the State of West Virginia the supreme court of appeals has held otherwise,^^ and has also held that the phrase "dwelling house" is not the equivalent of the words "usual place of abode." =^ The statute means the usual place of abode of the defendant at the moment when the summons is delivered or posted, and it does not mean a casual place of abode.''* The party to whom the summons is delivered must be a member of the defendant's " family, ' "^'^ and the officer's return must show such faet.^^ The service is not sufficient if the process be left with a boarder in the family." "Obviously it was not the intention of the statute that service upon such a person should be regarded as a legal service of a notice. Its purpose was to require service upon some person who would feel inter- ested by the ties of consanguinity, and the relation of depend- ence, to communicate the fact of the service to the party for whom it was designed. Such motives can not be predicated of a mere boarder who may or may not be inimical to the party for whom the notice is intended, and who may be there today and away tomorrow. In a limited sense it (family) signifies the father, mother and children. In a more extensive sense, it com- prehends all the individuals who live under the authority of another, and includes the servants of another. It was in this *9 Idem. ■•*■ Capehart, Admr. v. Cunning- 50 Fowler v. Mosher, 85 Va. 423, ham, Admr., 12 W. Va. 750, 757. 7 S. E. 542. 55 Smithson v. Briggs, 33 Gratt. siSmithson v. Briggs, 33 Gratt. (Va.) 180; Fowler v. Mosher, 85 (Va.) 180. Va. 423, 7 S. E. 542. 52 Lewis V. Botkin, 4 W. Va. 538. so/dem; Midkiff v. Lusher, 27 W. 53 Lewis V. Botkin, 4 W. Va. 533; Va. 439. Jones, et al. v. Crim, 66 W. Va. 301, 57 Fowler v. Mosher, 85 Va. 423, 304, 66 S. E. 367. 7 S. E. 542. § 16 Equity Procedure 24 legal and restricted sense that the word was in our opinion used in the statute. " "" In order that substituted service shall have all the effects of actual service upon the party in person, the return must show that all essential provisions of the statute authorizing such sub- stituted service have been complied with strictly.^* If service is made upon a daughter of the defendant, the return must show that she was at the time a member of his family. ^^ The return must show the fact that the party with whom the process was left was ' ' given information of its purport, ' ' *^ and that such person was found at the defendant's "usual place of abode. "*^ When service is made by posting the summons at the front door of the defendant's "usual place of abode," the process must be left posted and the return of the officer executing the same must show such fact,"' and it must further state that neither the wife of the defendant nor any member of his family over sixteen years of age was found there."* § 16. Service of process upon persons under disability. In the absence of statute otherwise so. providing, the service of process on infants who are parties to an action is essential in order to confer jurisdiction on the court and to authorize the appointment of a guardian ad liiem."^ And to give the court jurisdiction of an infant there must be personal service upon 58 In the opinion of the court in wife "not at his usual place of Fowler v. Mosher, 85 Va. 423, 7 S. ahode" is no service at all. Crockett E. 542. ■ V. Etter, 105 Va. 67t), 54 S. E. 59 Jones, et al. v. Crim, (•( al., 864. 66 W. Va. 301, 66 S. E. 367; 63 l,ewis v. Botkin, 4 W. Va. 533. Crockett v. Etter, 105 Va. 679, 54 «< Johnson, et al. v. Ludwick, et S. E. 864. al, 58 W. Va. 464, 52 S. E. 489. ooMidkiff V. Lusher, 27 W. Va. «!"> Alderson, Judicial Writs and 439. " Proc. 187, citing, Sprague v. Haines 01 Idem; Vandiver v. , Roberts, 4 (Tex.), 4 S. W. 371; Gay v. Grant, W. Va. 493; Park L. & I. Co. v. 101 N. C. 206, 8 S. E. 99. See Lane, 106 Va. 304, 55 S. E. 690. also, Galpin v. Page, 18 Wall. 350; 82 Vandiver v. Eoberts, 4 W. Va. Alexander^ et al. v. Davis, et al., 493. Delivery to the defendant's 42 W. Va. 465, 26 S.' E. 291. 25 Process Commencing Suit §17 him,*' nor can he accept service so as to confer jurisdiction upon the court. "^ But in the Virginias it is provided by statute that the proceedings in a suit, wherein an infant or insane person is a party, shall not be stayed because of such infancy or insanity, but the court in which the suit is pending, or the clerk thereof at rules, may appoint a guardian ad litem to any infant or in- sane defendant, whether such defendant shall have been served with process or not, and in West Virginia the statute also pro- vides further that after such appointment no pcocess need be served on such infant or insane person."* In the absence of statute there must be personal service of process upon an insane person to give the court jurisdiction, just as in the case of an infant.*' § 17. Service of summons upon a corporation. The statute of "West Virginia'" provides that it shall be suffi- cient to serve any process against a corporation: (1) upon its mayor, president, or other chief officer, or any person appointed pursuant to law to accept service of process for it; (2) in his absence from the county of the officer to whom the process is directed, the process may be served, if the defendant be a city, town or village, on two members of the council; (3) and if it be not a city, town or village, on the secretary, cashier or treas- urer ; (4) and if there be none such or he be absent, on a member of the board of trustees, directors or visitors; (5) if there be «8 Alderson, Judicial Writs and a guardian ad litem take its place." Proc. 188. Ferrell v. Ferrell, 53 W. Va. 515, eridem. 519, 44 S. E. 187. 6S W. Va. Code, 1913, c. 125, § 13; 69 i Hoflfman Ch. Pr. 108; 1 Barb. Va. Code, 1904, §3255. "The only Ch. Pr. 52; see Taylor v. Lovering, way known to our law of bringing 171 Mass. 303, 50 N, E. 612. Serv- an infant before a court is by a ice upon a person so insane or other- guardian ad litem appointed to con- wise incapacitated that he has no duct his defense for him." Turner understanding is invalid. State v. V. Barraud, 102 Va. 324, 46 S. E. Shank, 36 W. Va. 223, 14 S. E. 318. "Code, chapter 125, section 13, 1001. dispenses with service upon an in- ''° W. Va. Code, 1913, c. 124, § 7. fant, and makes the appointment of §17 Equity Procedure 26 not within the state any other person on whom there can be service as above prescribed, service on a director, agent (in- eluding in the case of a railroad company, a depot or station agent in the actual employ of the company) or other officer of the corporation against which the case is, shall be sufficient." Under this statute, neither a vice-president nor the general manager of a corporation can be treated as a chief officer wichin the meaning and contemplation of such statute ; '^ .-^o that in the absence of the president or other chief officer of the corpora- tion, the service must be made upon the second class of persons prescribed by the statute, that is, upon the secretary, cashier or treasurer. In Virginia, however, in the absence of the president or other chief officer, or other persons named in the statute, the service may be made by a delivery of the process, except as to a town or city, or bank of circulation, to any agent of the cor- poration, and hence to the vice-president or general manager, as such persons are deemed agents within the meaning of the statute of that state.^' When service of process upon a corporation is made by deliv- ering a copy thereof to the president, or other chief officer, or to the person appointed pursuant to law to accept service of process for it, or to any other person to whom it may properly be deliv- ered, it must be delivered to such officer or person in the county in which he resides, and the return must show this fact and state on whom and when the service was made, otherwise the service will not be valid.'* A summons can not be served upon '1 Ag to the service of process a, bookkeeper. See this same case against a corporation in Virginia, as to the essentials of tlie return see, Va. Code, 1904, §S 3225-3227. when an agent is served. 72 Norfolk & W. R. Co. v. Cot- '* Frazier v. K. & M. Ry. Co., 40 trell, 83 Va. 512, 3 S. E. 123. But W. Va. 224, 21 S. E. 723; Taylor contra, Ball v. Warrington, 87 Fed. v. Railroad Co., 35 W. Va. 328, 13 695. S. E. 1009; Wagon Co. v. Peterson, " Norfolk & W. R. Co. v. Cot- 27 W. Va. 314. This is required by trell, 83 Va. 512, 3 S. E. 123. the law of Virginia. Norfolk & W. "The test of agency within the R. Co. v. Cottrell, supra; Staunton meaning of the statute is whether Perpetual Bldg. & L. Co. v. Haden, the nature of the agent's employ- 92 Va. 201, 23 S. E. 285. But ment is such that it may reasonably seemingly, since Acts of 1903 (see be supposed that notice will through W. Va. Code, 1913, c. 50, §34), if him reach the corporation," Brooke service is upon an officer or agent County Court v. United States of the corporation in the county in Fidelity & Guaranty Co., 105 S. E. which the property, land or other 787 (W. Va. 1921). In this case, thing in controversy may be, or in 27 Process Commencing Suit § 17 a corporation, though domiciled in the state, by delivering a copy thereof to an officer or agent resident outside of the state. The service must be made upon the proper person residing in the state.'' Nor can process against a corporation be executed by service upon the wife of an agent.'" And if service is made upon the president of a corporation who is at the time the plain- tiff's attorney in a suit against this corporation, such service is voidable." In Virginia, process against a corporation must be served ten days before the return day, when the service is upon a person residing in some other county than that in which the suit is instituted.^* In the same state it has been held that, when a corporation has ceased to exist, the process may be served on its former president, or it may be published once a week for four successive weeks in some newspaper published in the county or corporation in which the suit or proceeding is pending." In West Virginia, it is further provided by statute that every resident domestic corporation, unless otherwise specifically and expressly provided, shall appoint some person residing in the county in this stat«, wherein its business is conducted, to accept service on behalf of such corporation, and upon whom process may be served ; *° and the state auditor is appointed by statute the attorney in fact, with power to accept service of process, the county where the cause of action Spencer, 46 W. Va. 570, 33 S. E. arises, it is not necessary that the 342. return show that the oflScer or agent 78 Staunton Perpetual Bldg. & resides in the county wherein served. Loan Co. v. Haden, 92 Va. 201, 23 Stout V. B. & 0. R. E. Co., 64 W. g. e. 285; Raub v. Otterback, 89 Va. 502, 63 S. E. 317. But see Va. 645, 16 S. E. 933. Leiter v American-La France Fire 79 Richmond Union Pass. Ry. Co. Engine Co., 104 S. E. 56 (W. Va. ^_ ^^^ y^^i^ Seabeaeh Co., 95 Va. 1920), reviewed m 27 W. Va. Law ggg 28 S E 573 Quarterly, 186, making a distinc- ' _ ' Vi j im-! k^ s oa tion between foreign and domestic ^ *» W- Va. Code, 1913, .. 54, §24. corporations Designation of such person m the JC T^.,1 •■ /I i TT. . . T return as the "lawful attorney" of 75p,llard V Cent. Virginia Iron y^^ defendant has been held suffi- Co., 82 Va. 734. (,;gnt Webster Wagon Co. v. Home 76 Water Front Coal Co. v. Smith- ins. Co., 27 W. Va. 314. But desig- field, etc., Co., 114 Va. 482, 76 S. nation as "attorney in fact and of E. 937. record" is not sufficient. Adkins, 77 United States Blowpipe Co. v. et al., v. Globe Fire Ins. Co., 45 W. Va. 384, 32 S. E. 194. [3] § 19 Equity Procedure 28 on behalf of foreign corporations doing business within the state and non-resident domestic corporations.*^ But it is im- portant to note that no process can be served upon the auditor nor accepted by him, unless delivered to him at least ten days before the return day thereof/- Foreign corporations and non- resident domestic corporations may also appoint an attorney in fact within the state to accept service of process, and the power of such an attorney in this respect is concurrent with that of the auditor.*' § 18, How process may be served upon a corporation that has not complied with the requirements of statute. The statute of West Virginia *^ provides that it shall be sufficient service of any process on, or notice to a corporation which shall have been formed, or which may hereafter be formed under, or which has accepted, the provisions of chapter 54 of the Code, and which within the time prescribed by section 24 of said chapter, shall fail to comply with the said chapter, if a copy of such process or notice be delivered by a proper officer or person to any person at or in charge of its principal office or place of business; or it may be proceeded against by order of publication. § 19. The acceptance of the service of a summons. The acceptance of the service of process by an authorized and competent person is equivalent to the formal service and return thereof by an authorized officer,*^ and is sufficient ordinarily 81 W. Va. Code, 1916 (see Acta foroign corporation may be had of 1915, 2d Ex. Sess., c. 3), c. 54, uijon the auditor of the state only § 24a (1). The acceptance of serv- in case such foreign corporation has ice need not show that the defendant been authorized to do business in is a foreign corporation. Smith this state in accordance with the Ins.' Agency v. Hamilton Fire Ins. provisions of chapter 54 of the Code, Co., 69 W. Va. 129, 71 S. E. 194. and in such case the return, to be But service upon such statutory valid, muht show this fact." Leiter agent is valid only so long as the v. American-La France Fire Engine corporation continues to do busi- Co., 104 S. E. 56 (W. Va. 1920). ness within the state. Dcatrick v. s2 w. Va. Code, 1916 (see Acts State Life Ins. Co., 107 Va. 602, 615, of 1915, 2d Ex. Sess., c. 3), c. 54, 59 S. E. 489. As to what is a §24a (3). corporation doing business within ^^Idem, c. 54, §24a(4). the state, see Ilayman v. Mononga- s^W. Va. Code, 1913, o. 124, §8. hela Consol. Coal Co., 81 W. Va. ss Marling v. Eobrecht, 13 W. Va. 144, 94 S. E. 36. 440; White v. White, 66 ^Y. Va. 79, "Service of process against a 66 S. E. 2. 29 Process Commencing Suit § 20 for the cause to be proceeded with.'^ But there can be no valid acceptance of process so as to affect or bind the defendant unless the party accepting had authority to do so.*' Thus, where a summons was issued against a defendant, and "legal service" thereof was accepted by his son, who was not a member of his family, and who had no authority to accept service of process for him, it was held that there was no legal service of the sum- mons and that the judgment rendered thereon was void.^' It always should be remembered, however, that acceptance of proc- ess beyond the jurisdiction of the court, e. g., outside of the state, will not support a personal decree against the defendant accepting.*" § 20. Service of process by order of publication on a natural person. Four different instances are provided by the West Virginia statute,"" in which a plaintiff may obtain service of process upon a natural person as the defendant in a suit by an order ■of publication entered against hira : (1) "on affidavit that a defendant is not a resident of this state; (2) or that diligence has been used by or on behalf of the plaintiff to ascertain in what county he is, without effect; (3) or that process directed to the officer of the county in which he resides or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed ; ^^ and (4) in any suit in equity, where the bill states that the names of any persons interested in the subject to be divided or dis- posed of are unknown, and makes such persons defendants by the general description of parties unknown, on affidavit of the fact that said names are unknown, an order of publication may be entered against such unknown parties.'"'^ And in Virginia seldem. »» W. Va. Code, 1913, c. 124, § 11. 87 Finney v. Clark, 86 Va. 354, si For the Virginia statute, see 10 S. E. 569. Va. Code, 1904, § 3230. en Mem. ■ "= W. Va. Code, 1913, c. 124, § U; 89 White V. White, 66 W. Va. 79, Va. Code, 1904, § 3230. 83, 66 S. E. 2. § 20 Equity Peoceduee 30 it is provided by statute that "where in a suit in equity the number of the defendants upon whom process has been served, exceeds thirty, and it appears by the bill, or other pleading, or exhibits filed, that such defendants represent like interests with parties who have not been served with process, the court or judge thereof in vacation may direct that such parties be pro- ceeded against by order of publication. ' ' °' An order of publication can be entered only on some rule day or in court,'* and if not so entered it is a nullity.'^ When an order of publication is entered, it takes the place of the formal summons, and it is not necessary to issue process against a defendant after an order of publication has been entered against him.»« An order of publication in West Virginia is sufBciently exe- cuted if it is published in four successive weekly issues of the newspaper in which it has been inserted, though the four weeks have not actually elapsed between the days of the first and last publications ; " but in Virginia the full four weeks must elapse, including the date of the first and excluding that of the last publication, or vice versa.^* An affidavit that the order of pub- lication has been posted ait the front door of the court house as required by law must be made,"' and this may be done by the party posting it, even after the cause has been remanded to the 98 Va. Code, 1904, § 3230. We previously been helsl in Virginia do not have this statute in West that issuance of the summons was Virginia. Our statute analogous to a prerequisite to the order of pub- this will be found in the W. Va. lication. Yates v. Payne, 4 Hen. & Code, 1913, c. 127, §9. M. (Va.) 413; Duguid v. Patterson, s-i Coal Riv. Nav. Co. v. Webb, idem, 445. 3 W. Va. 438. See W. Va. Code, ^i W. Va. Code, 1913, c. 124, § 12; 1913, c. 124, §11. In Virginia an Marling v. Eobrecht, 13 W. Va. 440; order of publication may be entered Miller v. Neff, 33 W. Va. 197, 10 either in court or by the clerk of S. E. 378. See also, Knowlton v. the court at any time in vac£«tion. Knowlton, 155 III. 158, 39 N. E. Va. Code, 1904, § 3225. 595. 86 Coal Riv. Nav. Co. v. Webb, 3 ss Dillard v. Krise, 86 Va. 410, 10 W. Va. 438. S. E. 430. ssAugir V. Warder, et al., 74 W. »» McCoy v. MoCoy, 33 W. Va. Va. 103, 107, 81 S. B. 708. It had 60, 10 S. E. 19. 31 Process Commencing Suit § 20 circuit court hy the supreme court of appeals for further pro- cedure to be had therein.^"" Proof of puhlieation in a newspaper is shown by the certificate of the editor or the publisher, or by the affida/vit of any other person. ^"^ An order of publication, even though supported by an attach- ment, could not be entered, so as to maintain an action or suit, during the late Civil War, by a plaintiff residing within the Union lines, in a court within said lines against parties residing within the Confederate lines, and in the Confederate military service, without an appearance by or notice to such parties, other than by an order of publication published within the Union lines.^"^ It had formerly been held that such action or suit might be maintained on an order of publica- tion without any attachment levied on the defendant's property."* But this doctrine is repudiated by subsequent de- cisions of the Court of Appeals of West Virginia.^"* An order of publication is not necessary in an attachment suit when the defendant has been served with an order of the attachment, or, of course, with process, in the suit in which the attachment issues."^ If suit is brought against a firm composed of two members or more, there must be an order of publication as to any non-resident member, unless all the members appear in the cause,^"" as service on the resident membersi alone is not sufficient to give jurisdiction as to those outside of the state. "^ 100 Idem. of Virginia. Va. Code, 1904, § 2979. 101 w. Va. Code, 1913, c. 130, § 32. A personal aiimmona may be issued 102 Sturm V. Fleming, 22 W. Va. and served on the defendant after 404. the cause has been matured against 103 Higginbotham v. Haselden, 3 him on an order of publication. U. W. Va. 266. S. Oil & Gas Well Sup. Co. v. Gart- 104 See Raymond v. Camden, 22 Ian, et at, 65 W. Va. 689, 64 S. E W. Va. 180; Grinnan v. Edwards, 933. 21 W. Va. 347; Sturm v. Fleming, i»6 Andrews v. Mundy, 36 W. Va 22 W. Va. 404. 22, 14 S. E. 414. . 105 W. Va. Code, 1913, c. 106, § 17. lo' Idem. The same statute exists in the state § 22 Equity Procedure 32 §21. Service oi process by order of publication upon a cor- poration. The statute of West Virginia provides that, if the defendant be a corporation, and no person can be found in the county upon whom the process can be legally served, an order of publication may be entered against such defendant/"* And a corporation heretofore or hereafter formed, or which has heretofore ac- cepted or shall hereafter accept the provisions of chapter 54 of the Code,"^ and which within the time prescribed by the 24th section of said chapter, shall fail to comply with the said chapter 54, may be proceeded against by order of publication."" Of course, as the word "person" includes corporations, a foreign corporation may be proceeded against by order of pub- lication in the manner prescribed by statute as to natural per- sons.^" In Virginia, if there is no agent or other proper person in the county or corporation wherein the case is commenced, upon whom process may be lawfully served, on affidavit of that fact, publication of a copy of the process, once a week for four suc- cessive weeks, in a newspaper printed in that state, shall be a sufficient service of such process.^^^ The publication of the process must be made upon an order directing the same in the case in which the process issues.''^' § 22. There can be no personal decree against a defendant upon whom process is served only by order of publi- cation. As we have seen,^^* the object of the service of process is to give the court jurisdiction; but this will not authorize the court 108 W. Va. Code, 1913, c. 124, § 11. "non-resident" under cl. 3, c. 123, losSee § 17, a«* Post, § 30. § 30 Equity Procedure 40 § 30. How defects in the process and its return are reached. When a cause is on the docket and has been called for trial or submission, and the defendant has not previously appeared to the suit, either at rules or in term, he has a right to object that the suit has not been properly or legally matured for trial, "'^ and in considering such objection all the process, returns and proceedings are necessarily parts of the record, and are to be looked into.^"" If the process commencing the suit is so defective as to render it void or voidable, the defendant may quash the same on his mere motion,^"^ or if judgment or decree by default has been entered, the defect may be reached by mo- tion to set the same aside and, thereafter, by appeal or writ of error.^^' Defects in the return of the service of the process may l)e taken advantage of by motion to quash,'"" or in the defendant's answer to the plaintiff's bill.^'"' Whatever the trend of former decisions, it is now clearly the law in West Virginia that if the point is raised in the case, on an appearance made solely for that purpose, that the suit is not properly matured for trial, by reason of any defect in the writ or its return, the defendant, if the point is decided against him and saved upon the record, may still make full defense to the merits of the cause thereafter, without any waiver of the defect in the process or its return and have the full benefit of the point thus made, upon a review of the cause by an appellate court/'^ The position thus taken !«= Hickman v. Larkey, 6 Gratt. last footnote, and W. Va. Code, 1913, (Va.) 210; Steele v. I-Iarkness, 9 W. c. 134. Va. 13; Lynch v. West, 63 W. Va. io9 Frazier v. K. & M. E. Co., 40 571, 576-7, 60 S. E. 606. W. Va. 224, 21 S. E. 723. It would 106 Hickman v. Larkey, 6 Gratt. seem that a motion to qviash would (Va.) 210; Lynch v. West, 63 W. be proper in respect to all substan- Va. 571, 576-7, 60 S. E. 606. tial defects in the return, as, in such 187 Laidley v. Bright, 17 W. Va. case, the defendant would necessarily 790, 791 ; Hickman v. Larkey, 6 seem not to have been served. Gratt. (Va.) 210; Ambler v. Leach, "o Price v. Pinnell, 4 W. Va, 296. 15 W. Va. 677; Lynch v. West, 63 "i Steele v. Harkness, 9 W. Va. W. Va. 571, 576-7, 60 S. E. 606. 13; Chapman v. Maitland, 22 W. Va. i«8 See authorities cited under the 329; Pra^sier v. K. & M. R. Co., 40 41 Process Commencing Suit §31 by the Supreme Court of Appeals of West Virginia is sup- ported by decisions in several other states."^ On the other hand, there are very many well considered cases holding that if a defendant appear specially to take advantage of any error or irregularity in the process or its service, and submits the question to the court which is decided against him, though he saves the benefit of the court's ruling by exception of record, he loses or waives such exception by entering into a trial of the merits of the cause.^^^ If the process appears to have been served on the defendant, any mere defect in the form of the returni, as where it is against a natural person and it is indorsed by the officer to whom it is directed, "executed in person," can be reached only by plea in. abatement. ^^* § 31. Who may take advantage of defect in process or its execution. A defect in the process or its execution may not only be urged by the party as to whom such defect particularly relates, but by any other defendant who may be affected by the decree, to be rendered in the cause.^^^ W. Va. 224, 21 S. E. 723; Fisher v. Colo. 294, 20 Pac. 752, 13 Am. St. Crowley, 57 W. Va. 312, 50 S. E. Rep. 221; Lord v. Hendrick, etc., 422. The latter case seems definitely Mfg. Co., 13 Colo. 393, 22 Pac. 782; to have settled what was before a Walker v. Turner, 27 Neb. 103, 42 doubtful question in this state. N. W. 918; Stephens v. Bradley, 24 172 Mullen V. Norfolk & N. C. Fla. 201, 3 So. 415; Railroad Co. Canal Co., 114 N. C. 8, 19 S. E. 106; v. Guesler, 14 Fla. 123; Kronski v. Benedict v. Johnson, 4 S. Dak. 387, Missouri-Pacific R. Co., 77 Mo. 362; 57 N. W. 66; Miner v. Francis, 3 C. & O. Ry. Co. v. Wright, 50 W. N. Dak. 549, 58 N. W. 343; State Va. 653, 41 S. .E. 147. The ease of V. Dupre, 46 La. Ann. 47, 14 So. C. & O. Ey. Co. v. Wright, supra, 907; Ames v. Winsor, 19 Pick. is distinguished and criticized, if not (Mass.) 247. overruled, in Fisher v. Crowley, 57 "3 Stevens v. Haris, 99 Mich. 234, W. Va. 312, 50 S. E. 422. 58 N. W. 230; Sears v. Starbird, 78 I'l Barksdale v. Neal, 16 Gratt. Cal. 225, 20 Pac. 547; Desmond v. (Va.) 314. San Francisco Ct., 59 Cal. 274; 1^5 McCoy's Exor. v. McCoy, 9 W. Thayer v. Dove, 8 Blackf. (Ind.) Va. 443; Craig v. Sebrell, 9 Gratt. 567; Ruby Chief Min. & Milling Co. (Va.) at p. 133; Style v. Laurel V. Gruly, 17 Colo. 199, 29 Pac. 668; Fork Oil & Coal Co., 45 W. Va. 374, Union Pac. R. Co. v. De Busk, 12 32 S. E. 227. § 33 Equity Procedure 42 § 32. Amendment of the return to the process. There is a great difference between the amendment of the return of a summons and of the writ by the clerk.''" The officer's amendment of his return simply shows the actual facts, as they had always existed ; and the courts have been very liberal in permitting the officer to amend his return, as it obvi- ously promotes the ends of justice and wrongs no one."' The court will always permit the return on the summons, so as to accord with the facts, to be amended at any time, even though the case be in the supreme court of appeals."' When the return is amended, the amendment relates back to the date of the service ; "' and the effect of the amendment may be to defeat a judgment already obtained.'*" § 33. Alias process and when it may be issued. "When an original or first writ has issued, failed of its purpose and been returned, another one may be issued, which is termed and known as an alias. If the alias prove ineffectual other writs of like nature may issue which are denominated pluries writs."'*' There is no difference in the form of an original and alias process, except that after the words, "we command you," there are inserted in the latter the words, "as we have formerly done," or "as we have formerly com- manded you. ' ' '*^ Whether or not the omission of this dis- tinguishing characteristic of an alias writ renders it invalid, the authorities are not in accord ; "^ but the better opinion is iTOLaidley v. Bright, 17 W. Va. Gaulev Coal Land Aasn. v. Spies, 61 ''70, 792. W. Va. 19, 55 S. E. 903. The same 177 Idem; McCormick v. Southern rule applies as to an order of pub- Kxpre^ss Co., 81 W.- Va. 87, 93 S. ^^^^..^^ g^^ ^^^^ „„,^^ „^^^ l^^O 'l78/d;„; White V. Sydenstrieker, ''" Gauley Coal Land Assn. v. 6 W. Va. 46; State v. Martin, 38 Spies, 61 W. Va. 19, 55 S. E. 903. W. Va. 568, 18 S. E. 748; Stone v. iso Spencer v. Rickard, 69 W. Va. Wil.son, 10 Gratt, (Va.) 529; 322 71 S. E. 711. Wordswortli v. Miller, 4 Gratt. ,' ,,, t j- ■ 1 rrr -x j (Va.) 99; Smith v. Tripplett. 4 '«' Alderson, Judicial Writs and Leigh (Va.) .590; Capeliart v. Cun- Proc, §90, p. 154. ningham, 12 W. Va. 750; Varnoy, i^^ Idem, §91. et al. V. Hutchinson Lumber & Mfg. iss Idem S5 91 Q2 Co., 64 W. Va. 417, 63 S. E. 203; ' " ' 43 Process Commencing Suit § 34 that it does not."* It is suggested, however, that these charac- teristic words be inserted, inasmuch as the question has not been determined by the courts in either of the Virginias, so far as the the author's examination of the matter extends. In West Virginia, it is provided by statute that, "if at the return day of any process it be not returned executed, an alias or other proper process may be issued." ^^^ And no alias sum- mons can issue where the original has been returned executed.'^'' Inasmuch as an alias summons is but the continuation of the original, and dependent upon it, it must stand or fall with it;'^^ so that if the original summons is quashed, no alias can lawfully issue, and if in such case an alias is issued, it should also be quashed.^'* If the service and return of the process be void, an alias may be issued.^*' § 34. The waiver of process and the service thereof. A defendant may appear in a case for the express purpose of taking advantage of any defect in the process commencing the suit, or of a defective execution or the non-execution thereof, without subjecting himself to the jurisdiction of the court; but if he appears to the action in any case for any other pur- 184 Idem. returnable to tlie third Monday in 185 W. Va. Code, c. 124, § 3. It September, 1891, which was served, should be noted that the statute and on this last sununons rules were says "not returned executed," which taken, on 2nd September and is not equivalent to "returned not 1st October rules, and the cause executed." See Va. Code, 1904, placed on docket at October term. § 3221. Eeld, that a motion to quash the 186 Gorman v. Steel, 1 W. Va. 1. process, and remand the cause to 187 Idem. But see Coffin v. Bell, rules, was correctly overruled, as, 22 Nev. 169, 37 Pac. 240. where previous writs have failed for 188 /(iem. irregularities, plaintiff is entitled to 189 United States Blowpipe Co. v. alias writ." Danville & W. E. Co. Spencer, 46 W. Va. 590, 33 S. E. 342. v. Brown, 90 Va. 340, 18 S. E. 278. "Plaintiff, on May 9, 1891, sued Although an alias writ should out a summons returnable to third issue upon the return of the original, Monday in May when declaration so as to leave no hiatus between was filed, and case continued for the original and the alias, it is suf- process, July 6, 1891, an alias sum- flcient if it be issued before the mons was issued, on which no rules original is quashed. Carter Coal were taken. August 27, 1S91, Co. v. Bates, 105 S. E. 76 (Va. plaintiff sued out an alias summons 1920) . § 35 Equity Procedure 44 pose, he places himself precisely in the situation in which he would be, had the process and its execution been in all respects valid, and all defects in the process and its execution are thereby waived.^^" Thus an appearance by the defendant and taking or consenting to a continuance of the cause, is a waiver of all defects in the process or its serviee.^'^ And filing a plea or answer operates in like manner as a waiver of such defects.^''' And if parties to a suit make up by consent the pleadings therein and have it docketed in any court having jurisdiction of the subject-matter, this will constitute a waiver of process therein and of its service.^^^ In order to constitute a waiver the ap- pearance must be voluntary, ^^* but the , record need not ex- pressly show that the appearance was special. "Whether an appearance is general or special is to be determined by the record as it stands at the time the motion is made. "^°' § 35. The recitals in a decree with reference to the process commencing the suit. When a decree has been entered in a cause against a non- resident defendant who has not appeared therein, a general 150 Mahany v. Kpphart, 15 W. Va. the plaintiff, other than one eon- 600; Burlaw v. Quarrier, 16 W. Va. testing the jurisdiction only." Ful- lOS; Hunter's Exrs. v. Stewart, 23 ton v. Ramsey, et al., 67 W. Va, 321, W. Va. 649; Ambler v. Leach, 15 68 S. E. 381. See Patton v. Eicher, W. Va. at p. 684; McAlexander v. 85 W. Va. 465, 102 S. E. 124. Huston's Exr., 10 Leigh. (Va.) 486; isi Harvey v. Skipwith, 16 Gratt. Payne v. Grim, 2 Munf. (Va.) 297; (Va.) 410. But a mere inquiry aa Tuberville v. Long, 3 H. & M. (Va.) to whether a continuance can be 309; Harvey v. Skipwith, 16 Gratt. taken is not sufficient. Fulton v. (Va.) 410; A. & D. E. Co. v. Peake, Ramsey, et al., 67 W. Va. 321, 68 S. 87 Va. 130, 140, 12 S. E. 348; Totten E. 381. Nor is mere acceptance of v. Nighbert, 41 W. Va. 800, 24 S. a notice to take depositions a gen- E. 627; Giboney v. Cooper, et al., eral appearance. White, et al., v. 57 W. Va. 74, 49 S. E. 939; Rosen- White, et al, 66 W. Va. 79, 66 S. burg v. U. S. Fidelity, etc., Co., 115 E. 2. Va. 221, 78 S. E. 557. "A general -^^^ Idem, and the authorities cited appearance must be express or arise under note 190. by implication from the defendant's los Hunter's Exrs. v. Stewart, 23 seeking, taking or agreeing to some W. Va. 549. step or proceeding in the cause, bene- i"* Fisher v. Crowley, 57 W. Va. iicial to himself or detrimental to 312, 50 S. E. 422. 195 Idem. 45 Process Commencing Suit § 36 recital in the decree that the order of publication was duly executed as to such defendant, in the absence of anything in the record to the contrary, is conclusive that the order was duly made, published in a newspaper and posted at the front door of the court house as required by law.-"^'* But a mere recital in the decree that the order of publication was duly executed by publication in a cer- tain newspaper for four successive weeks, commencing and ending at a specified time, is insufficient, if nothing more appears in the record to show that it also has been duly posted.^®' So will a recital in a decree that a summons has been duly served be conclusive.^"* But in all instances the presumption raised by the recital in the decree will be rebutted when the summons, order of publication, or return as to execution of either, shows that it was not duly executed.'"" And when a decree contains a general recital of appearance by defendants constituting a waiver of process, the presumption will be that the recital refers only to those served with process.^"" § 3B. Time given defendant in which to enter his appearance after execution of process. An examination of the statute of West Virginia ^"^ and the construction placed upon it by the court show that a defendant i!>6 Craig V. Sphroll, Oratt. the process or order of publication, (Va.) 133. See also, Steenrod v. and shows clearly that process was Railroad Co., 27 W. Va. 1. not served or, order of publication 187 Coal River Nav. Co. v. Webb, executed as to any particular de- 3 W. Va. 438. fendant, such declaration in the de- 108 Central D. & P. T. Co. v. Par- cree will not raise such presumption kersburg, etc., Ry. Co., 76 W. Va. as to such defendant. Styles v. 120, 85 S. E. 65. Laurel Fork Oil and Coal Co., 45 109 Where it does not appear from W. Va. 374, 32 S. E. 227 : Jones, the record whether process was duly et al. v. Crim, et al., 66 W, Va. 301, served, or order of publication duly 66 S. E. 367. published and posted, or not, except 200 White, et al. v. White, et al., from the decree, which declares that 66 W. Va. 79, 66 S. E. 2. "process was duly served" or "or- 201 W. Va. Code, 1913, c. 125, §§5, der of publication was duly executed 6, 44. The same law applies in as to the defendants," it will be pre- Virginia. Va. Code, 1904, §§ 3239, sumed that it was so served or exe- 3240, 3284. cuted. But when the record shows § 36 Equity Procedure 46 has one month ^°'^ within which to appear at rules after the bill has been filed. But the appearance must be at rules when the appearance is in the clerk's office,^"' except in cases of in- junctions.^"* When the cause is in court the defendant may appear and make defense at any time before final decree.^"' When the proceeding against the defendant is by order of publication, he has until the next term of the court after the pub- lication" of the order is completed, within which to enter his appearance. ^°° Formerly the time was one month after the due execution of the order of publication.^"' In Virginia the cause may be heard as to natural persons, after fifteen days from the due execution of the order of publi- cation.^"^ Corporations have, in the state of Virginia, the usual time to make appearance after due publication of the process within which a person properly served with process, personally, within the jurisdiction of the court may enter an appearance.^"* 202 M. & F. Bank v. Matthews, 3 254 ; Bronaon v. Vaughn, 44 W. Va, W. Va. 26. 406, 29 S. E. 1022; Wilson v. Ken- 203 Hayzlett v. McMillan, 11 W. nedy, 63 W. Va. 1, 59 S. E. 736. Va. 464; First Nat. Bk. v. Hunt- zoew. Va. Code, 1913, c. 124, § 13. ington Distillery Co., 41 W. Va. 530, 2ot Higginbotham v. Haselden, 3 23 S. E. 792 ; Zell Guano Co. v. W. Va. 266 ; McDonald v. McDonald, Heatherly, 38 W. Va. 409, 18 S. E. 3 W. Va. 676. 611. 208 Va. Code, 1904, § 3232. 204 Jdem. 209 2 Virginia Law Kegister, pp. 205 Cain v. Daviason, 6 W. Va. 545-548. 465; Tracewell v. Hoggs, 14 W. Va. CHAPTER III PARTIES § 37. General observations and principles with reference to the necessary or proper parties to a suit. § 38. The character and extent of interest determining the question of parties. § 39. Parties plaintiff, their interest and right to relief. § 40. Suit in the name of one plaintiff on behalf of himself and others. § 41. Necessary and proper parties, plaintiff' and defendant, in different matters of equity jurisdiction. § 42. In matters of abatement, whether as to purchase money or otherwise. I 43. In matters of account. § 44. In the matter of agency. § 45. In the matter of alimony. § 46. In the matter of the annulment of marriages. I 47. In matters of arbitration and award. § 48. In matters of assignment. § 49. In matters of attachment. § 50. In the matter of the cancellation and rescission of written instru- ments. — Cloud upon title to real estate. § 51. Cancellation in cases of fraud. § 52. Cancellation in cases of mistake. § 53. Cancellation in cases of inadequacy of consideration and misrepre- sentation. § 54. Cancellation in cases of undue influence. § 55. Cancellation in cases of infancy. § 56. Cancellation in cases of drunkenness. § 57. Cancellation in cases of fiduciary relationship. §58. In the matter of confusion of boundaries. § 59. In matters of contribution. § 60. In matters of corporations. § 61. In the matter of creditors' bills. § 62. In matters pertaining to deeds of trust. §63. In the matter of dower (assignmei;t of). § 64. In matters pertaining to the estates of c'ecedents. ' § 65. In matters relating to fiduciaries. § 66. In matters of fraud. § 67. In the matter of fraudulent conveyances. § 68. In matters relating to guardian and ward. § 37 Equity Procedure 48 §69. As to matters relating to liusbaiid and wife. § 70. In matters relating to injunctions. § 71. In matters relating to judgments and decrees. § 72. In matters relating to legatees and distributees, § 73. In the matter of the enforcement of aliens. §74. In the matter of mortgages (redemption of). § 75. In the matter of mortgages — continued — foreclosure of. § 76. In matters relating to municipal corporations. § 77. In matters of partition. § 78. In matters of partnership. § 79. In matters of specific performance. § 80. In matters of subrogation. § 81. In matters relating to tax-payers and the expenditure of public funas. § 82. In matters relating to trusts and trustees. § 83. In matters of usury. § 84. In matters of waste. §85. In matters of wills (contest of). § 86. In matters of \vills (construction of). § 87. Joinder of parties. § 88. Joinder of husband and wife in We.st Virginia. § 89. Joinder of husband and wife in Virginia. § 90. Joinder of parties plaintiff. § 91. Joinder of defendants. § 92. Misjoinder of parties. § 93. Misjoinder of parties plaintiff. § 94. Misjoinder of parties defendant. § 95. How misjoinder of parties plaintiff availed of. § 96. How and when advantage taken of non-joinder of parties. § 97. When bill should be dismissed for want of proper parties. § 98. How persons made parties to a suit. § 99. How persons again made parties as to whom suit has been discon- tinued. § 100. Unborn persons as parties to a suit. § 37. General observations and principles with reference to the necessary or proper parties to a suit. In the logical order of procedure in the institution of a suit in equity, the first question to he determined is the one of par- ties, though the first step in the achtal commencement of the suit in Virginia and West Virginia is the issuance of the svim- mons, and the next its service and return. In beginning this treatise we set out with the actual, rather than witla the logical, order. This was done more from a practical than from a scientific consideration, as the settled and long-established principles of 49 Parties § 37 equity pleading would place the subject of parties at 'the thresh- old of a work devoted entirely to the law of pleading; but as our labors here are designed to embody a wider field than this single and restricted branch of chancery law, it is not presented in the exact order that a work devoted exclusively to pleading would properly require. The question of the necessary parties to a suit in equity is one of prime importance.^ There are certain general princi- ples applying here which it would be well to consider before noticing the specific cases of essential or necessary parties. Tlie classification of parties may be divided into those denominated essential or necessary,- and those known as proper parties.'' And there is a further division which recognizes persons hav- ing such an interest in the subject-matter of the suit as to come under the designation of formal parties,* though it would seem that the second class in many instances necessarily embraces the latter. An examination of the decided cases and some of the treatises on equity pleading, will disclose that very frequently the words "necessary" and "proper," as applied to the parties to a suit, are used interchangeably or as synonymous with each other.-'' Necessary parties include all persons, natural or arti- ficial,^ however numerous, materially interested either legally or beneficially in the subject-matter or event of the suit and who must be made parties to it,' and without whose presence in 1 Story, Eq. PI. (Ninth Ed.), §72. Buchanan Co. v. Smith, et al., 11.5 2 Shipman, Equity Pleading, 19. Va. 704, 80 S. E. 794. sidem, 36. ^ Re.xroad v. McQuain, 24 W. Va. i Idem, 36. 32 ; Lynchburg Iron Co. v. Tayloe, a Hill V. Proctor, 10 W. Va. 59; 79 Va. 671; Clark v. Long, 4 Rand. Mitchell, Sheriff v. Chancellor, 14 (Va.) 451; Yost v. Porter, 80 Va. W. Va. 22; Sheppard v. Stark, 3 855; Hallett v. Hallett, 2 Paige Ch. Munf. (Va.) 29; Burlew v. Quarrier, (N. Y.) 15, 2 L. Ed. 793; Roljinson 16 W. Va. 108; Chapman v. P. & S; v. Howe, 35 Fla. 73, 17 So. 368; R. R. Co., 18 W. Va. 184. In such Christian v. A. & C. R. Co., 133 U. S. instances, the word "proper" is used 233, 33 L. Ed. 589; Buchanan Co. loosely, in a non-technical sense. v. Smith, et al., 115 Va. 704, 80 S. 6 Knopf V. Chicago Real Estate E. 794; Jarrett v. Osborne, 84 W. Board, 173 111. 196, 50 N. E. 658; Va. 559, 101 S. E. 162. '§ 37 "Equity Procedure 50 court no proper decree can be rendered in the cause.* This rule is inflexible, yielding only when the allegations of the bill disclose a state of case so extraordinary and exceptional in character as that it is practically impo^ible to make all parties in interest parties to the bill, and, further that others are made parties who have the same interest as have those not brought in, and are equally certain to bring forward the entire merits of the controversy as would the absent persons.' This cardinal principle governing as to parties to suits in equity is founded upon the broad and liberal doctrine that courts of equity de- light to do complete justice by determining the rights of all per- sons interested in the subject-matter of li'ftgation, so that the performance of the decree rendered in the cause may be per- fectly safe to all who are required to obey it, and that further litigation touching the matter in dispute may be prevented.*" On the other hand, persons wholly without any interest in the subject-matter of the suit are neither necessary nor proper parties thereto. ^^ The rule is fundamental that no person can sRexroad v. McQuain, 24 W. Va. the court as would enable them to 32; Simon v. Ellison, 90 Va. 157, make the objection if he were not -^ TT o T7. o^o T> TT TTTT partv." Bailev V. Inglee, 2 I'aige 17 S. E. 836; Brown v. Knapp, 7 W. 1,,^ .jj^ ^ j g^-g^ g -Law Ed. 905 and Va. 678; Donahoe v. Fackler, 8 W. ^g^g Va. 249; Morris v. Peyton, 10 W. 9 Knopf v. Chicago Real Estate Va. 1; Lyman v. Thompson, 11 W. Board, 173 111. 196, 50 N. E. 658. Va. 427; Hatch v. Calvert, 15 W. See Story, Eq. PI. (Ninth Ed.), Va. 90; McCoy V. Allen, 16 W. Va. §§142-147. ■7CA J Tjw 1,1 QQw -t7„ 10 Yost V. Porter, 80 Va. 855; 724; Morgan v. Blatchley, 33. W. Va. jj^,,^^^. ^_ j^^^jj^^^^ ^ p^j^^ (jj y ) 155, 10 S. E. 282; L. & N. E. Co. 15^ 2 Law. Ed. 793; Buchanan Co. V. I. C. R. R. Co., 174 111. 448, 51 v. Smith, et al., 115 Va. 704, 80 S. N. E. 824; Oneal v. Stimson, 61 W. E. 794; Bragg, ct al. v. United, etc., IT rri L c w oon Tj I ti, Co., 70 W. Va. 655, 74 S. E. 946; Va. 551, 56 S. E. 889; Beckwith v. q,^.; ^.^^^^^ ^^ \. ^annington Laing, 66 W. Va. 246, 66 S. E. 354; Window Glass Co., 103 S. E. 333 Buchanan Co. v. Smith, et al., 115 (W. Va. 1920); American Bonding Va 704 SO S E 794 Co. v. American Surety Co., 103 S. ,;. ' .■ ■ ■ , , E. 599 (W. Va. 1920). "A person is a necessary party to „ „ „, , „„ t^t »t «k„ ./ , J . , t- , 11 Barr V. Clayton, 29 W. Va. 256 1 a suit when no decree m relation to Chapman v. P. & S. R. R. Co., 18 W. the subject-matter of litigation can Va. 184; Hill v. Maury, 21 W. Va. be made until he is properly before 162; Lynchburg Iron Co. v. Tayloe, the court as a party; or where the 79 Va. 671; Norfolk & W. Ry. Co. ,,,,.,, ;. , „ „„ . V Obenchain, 107 Va. 596, 59 S. B. defendants m the suit have such an ■. ' . , ■ , ^ , ''04. interest in having such person before 51 Parties § 37 maintain a suit respecting a subject-matter with reference to which he has no interest, right or duty, either personal or fidu- ciary." While necessary parties are manifestly proper parties," the converse of this does not obtain. There are many cases in which certain persons may be properly made parties to the suit who are not necessary or essential parties thereto.'^ A proper party is defined to be a party whose interests are so related to the subject-matter of a suit, that they may be conveniently settled therein, but whose presence as such party is not indispensable to the determination of the particular mat- ter before the court and essential to its jurisdiction to that end.'* And "persons are not improper defendants who are so con- nected with the ease made as to be directly interested in obtain- ing or resisting the specific relief asked in the bill or given in the decree, such as claimants, by written executory contract, of part of the personal property mentioned in a deed of trust in con- troversy. ' ' '" Formal, or nominal, parties are those who have no interest in the particular question involved in the suit, but do have an interest in the subject-matter thereof which may be conveniently settled in the suit,'^ and may be made parties or not at the option of the plaintiff, if a decree can be rendered in the suit without prejudice to the rights of the essential parties to the cause.'" 12 Baxter v. Baxter, 43 N. J. Eq. i= 3 Desty's Fed. Proc. (Ninth 82, 10 Atl. 814; Ashly v. Ashly, 39 Ed.) 1761, and authorities there La. Ann. 105, 1 So. 282. cited. 13 Hill V. Proctor, 10 W. Va. 59; le Zell Guano Co. v. Heatherly, 38 Norris v. Lemen, 28 W. Va. 336; W. Va. 409, 18 S. E. 611. Meek v. Spracher, 87 Va. 162, 12 S. i' Shipman, Equity Pleading, 36. E. 397. 1^ Baker v. Rowan, 2 Stew, and 1* Lynchburg Iron Co. v. Tayloe, P. (Ala.) 361; Starn v. Farr, 17 79 Va. 671; Barney v. Latham, 103 ill. App. 491; Morgan v. Rose, 22 N". U. S. 214; Elsberry v. Seay, 83 Ala. J. Eq. 583; Barney v. Latham, 103 314, 3 So. 804; Stewart v. Ludwick, b. ti. 214. 29 Ind. 230. §37 Equity Procedure 52- It follows from this classification, that necessary parties rmist he made parties to the suit; '" proper parties must be made parties, if it be practicable to do so, in order that there may be an end of litigation,-" and that formal or nominal parties may be made at the option of the plaintiff unless their omission would be detrimental to the rights of others.-^ 19 See authorities hereinbefore cited under this section. Sweeney v. Foster, et al., 112 Va. 409, 71 S. E. 548. 20 Chadbourne v. Coe, 10 U. S. App. 78, 51 Fed. 479, 2 C. C. A. 327; Bonsai v. Camp, 111 Va. 595, 69 S. E. 978. =1 Story, Eq. PI., § 229. In California v. Southern Pacifc E. Co., 157 U. S. 229, 15 Sup. Ct. Rep. 591, 30 L. Ed. 683, which is quoted with approval in Moore v. Jennings, 47 W. Va. 181, 34 S. E. 797, the judge, in the course of his opinion, says: "When an original cause is pending in this court, to be disposed of here in the first in- stance, and in the exercise of an exceptional jurisdiction, it does not comport with the gravity and the finaRty which should characterize such an adjudication to proceed in the absence of parties whose rights would be in effect determined, even though they might not be technically bound in subsequent litigation in some other tribunal." Wilson v. Kiesel, 164 U. S. 248, 17 Sup. Ct. 124, 41 L. Ed. 422; New Orleans Water Works Co. v. City of New Orleans, 164 U. S. 471, 17 Sup. Ct. 161, 41 L. Ed. 518; Story v. Liv- ingston, .13 Pet. 359, 10 L. Ed. 200; Conn. v. Penn, 5 Wheat. 424, 5 L. Ed. 125. "The want of proper parties to a bill is a good defense in equity, at least until the new par- ties are made, or a good reason shown why they are not made. At law a plea of the like nature is some- times a good defense in bar, and is sometimes only a matter in abate- ment. But the plea of equity is of a far more extensive nature than at law, and it often applies when the objection at law would not have the slightest foundation. * ♦ ♦ But courts of equity frequently require all persons who have remote and future interests or equitable inter- ests, or equitable interests only, or are directly afifected by the decree, to be made parties; and they will not if they are within the jurisdic- tion, and capable of being made par- tics, proceed to decide the cause without them. * * * It is the great object of courts of equity to put an end to litigation, and to set- tle, if possible, in a single suit, the rights of all parties interested or affected by the subject-matter in con- troversy." 2 Story, Eq. Jur.. § 1526. See also. Story, Eq. PI., § 72. "A person may be affected by the de- mands of the plaintiff in a suit, either immediately or consequent tially. Where a person is in the actual enjoyment of the subject-mat- ter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or di- minished by the plaintiff's claims, he has an immediate interest in re- sisting the demand, and all persons. 53 Parties §38 § 38. The character and extent of interest determining the question of parties. There is no precise or universal test by which to determine when the interest of a person is such as to make him a neces- sary or proper party to a suit ; -' further than that it must not be a future and very uncertain and contingent interest.'' As to the nature of the interest it is not material whether it be legal or equitable, or present, direct and immediate, so it be some fixed interest, that may be affected or bound by the decree to be rendered in the cause.-* It is not always necessary, however, who have such immediate interests are necessary parties to the suit; but there may be other persons, who, though not immediately interested in resisting the plaintiflf's demands, are yet liable to be affected by them consequentially, because the success of the plaintiff, against the defend- ants who are immediately interested may give those defendants a right to proceed against them for the pur- pose of compelling them to make compensation, either in the whole or in part, for the loss sustained. The persons who are consequentially liable to be affected by the suit must frequently also be made parties to it." 1 Daniel, Ch. PI. and Prac, 246. "There is a class of persons hav- ing such relations to the matter in controversy, merely formal or other- wise, that «hile they may be called proper parties, the court will take no account of the omission to make them parties. There is another class of persons whose relations to the suit are such, that if their interest and their absence are formally brought to the attention of the court, it win require them to be made parties, if within its jurisdic- tion, before deciding the case; but if this can not be done, it will pro- ceed to administer such relief as may be in its power between the parties before it. And there is a third class, whose interesst in the subject-matter of the suit, and in the relief sought, are so bound up with that of the other parties, that their legal pres- ence as parties to the proceeding is an absolute necessity, without which the court can not proceed. In such cases the court refuses to entertain the suit, when the parties can not be subjected to its jurisdiction." Miller, J., in Barney v. Baltimore City, 6 Wall. (U. S.) 2S4, IS L. Ed. S2.5, quoted in Bonsai v. Camp, 111 Va. 595, 597, 69 S. E. 97S, and Sweeney v. Foster, 112 Va. 499, 71 S. E. 548. 22 Story, Eq. PI., § 76; Fitzgibbon v. Barry, 78 Va. 755; Buchanan Co. v. Smith, et al., 115 Va. 704, SO S. E. 794. 23 Fitzgibbon v. Barry, 78 Va. 755; New v. Bass, 02 Va. 383, 23 S. E. 747; Mcrritt v, Jlerritt, 43 N. J. Eq. 11, 10 Atl. 835. Interest merely in the legal principle involved is not sufficient. Howard v. Stephen- son, 33 W. Va. 116, 10 S. E. 66. 2-1 Story, Eq. PI. (Ninth Ed.), § 137; Buchanan Co. v. Smith, et al, 115 Va. 704, 80 S. E. 794. § 38 Equity Procedure 54 that the interest of absent parties may be affected prejudicially by the decree sought by the suit, in order that they may be brought before the court as parties thereto. It will be a suffi- cient cause for making them parties if persons already before the court be subjected to undue inconvenience or to danger of loss,^" or to future litigation, ^° or to a liability under the decree, more extensive and direct, than if the outstanding parties were before the court. ^' It is a firmly settled general principle that courts of equity will not afford relief, when the owner or holder of the legal interest or title of the subject of suit is not a party to the cause, ^* although he may have no beneficial interest there- in,^' so that the legal right may be bound by the decree of the court.^" Thus, where one voluntarily guarantees the payment of a bond, unknown to the obligors, to a person who receives it in payment of a debt and afterwards pays the amount, the pei'son so guaranteed and so receiving the bond in payment is a necessary party in a suit by the guarantor to recover the sum paid from the obligors, as the guarantor is regarded as having^ the equitable interest in the bond, and the person guaranteed must be made a party in order that his legal title may be bound by the decree.^' If, however, the holder of the legal title of the subject-matter of litigation has a mere nominal title, and no interest whatever in the suit, it is not necessary to make him a party. ^- Thus a suit in equity for the breach of a com- ae Turk V. Skiles, 38 W. Va. 404, et al. v. United, etc., Co., 70 W. Va. 18 S. E. 561, in the opinion of the 65.5, 74 S. E. 946; Garrett v. court. Osborne, 84 W. Va. 559, 101 S. E. 20 Idem. 162. 2' Story, Eq. PI., §138; Moore, et =9 Lyncliburg Iron Co. v. Tayloe, al. V. Jenninga, et al., 47 W. Va. 79 Va. 671. 181, 34 S. E. 793. 30 /Jem. 28 Chapman v. P. & S. R. R. Co., 31 Carter v. Jones, 5 Ired Eq. (N. 18 W. Va, 184; Maxwell v. Bur- C.) 106, 49 Am. Dee. 425. So a- bridge, 44 W. Va. 248, 28 S. E. 702 ; trustee who holds the legal title to Williamson v. Jonea, 43 W. Va. 562, land is a necessary party in a suit 27 S. E. 411, 38 L. R. A. 695, 64 to obtain the legal title. Bragg, et Am. St. Rep. 891; Turk v. Skiles, al. v. United, etc., Co, 70 W. Va. 38 W. Va. 404, 18 S. E. 561 ; Gard- 655, 74 S. E. 946. ner v. Kelso, 80 Ala. 497 ; Bragg, 32 Brooks v. Miller, 29 W. Va. 490 2 S. E. 219. 55 Parties ' § 39 missioner'sbond payable to the state, may be maintained in the name of the party injured by such breach, without making the state a party to the suit,^' though at law it is otherwise.^* It is not all persons who have an interest in the subject- matter of the suit, but, in general, those only who have an in- terest in the object of the suit, who are ordinarily required to be made parties to it.'^ § 39. Parties plaintiff, their interest and right tt relief. In order to enable a party to maintain a siiit in equity as a plaintiff therein, he must not only have aL interest in the sub- ject-matter, or event of the suit,'* but, as a general rule, he must be the real party in interest or beneficiary,'^ and must be entitled to the relief sought by the bill.'^ A suit in equity ■can not be brought in the name of a party who has parted with his interest in the subject-matter, though he may still hold the legal title, for the use of another, as may sometimes be done at law, without making the beneficiary a party.'^ An assignee can not carry on a suit in equity in the name of the assignor 33/tfem. Such a suit can not be N. E. 49; Smith v. Brittenham, 109 brought in the name of the state for 111. 540 ; Field v. Maghee, 5 Paige the use of another. State v. Flana- Ch. (N. Y.) 539, 3 Law. Ed. 821; gan, 77 W. Va. 505, 87 S. E. 878; Rogers v. Traders' Ins. Co., 6 Paige Ealeigh Co. Ct. v. Cottle, 79 W. Va. Ch. (N. Y.) 585, 3 Law Ed. 1111; 661, 92 S. E. 110, Ann. Gas. 1918D, Bank v. Cook, 55 W. Va. 220, 46 S. 510. E. 1027; State v. Flannagan, 77 W. nidem Va. 505, 87 S. E. 878; Raleigh Co. 35 Story, Eq. PI., §72; Starn v. f' ^i.^tll'^lf^'l ^^-fl''' '%^i Huffman,^ 62 W. Va. 422 59 S. E. ^- ^f^\ ^™"' % f^„^- H^aron 94 iTn T) T> 1 on ^7- oero Va. 116, zl b. H,. 599: Hurt, et at. }l^ F^s« --R^ 'r 7.; f^' ^- Miller, et al., 95 Va 32, 27 S. E. 15 S. E. 586 ; Buchanan Co. V. Smith, „,, T3„i„„t, n„ r^i r-i ij.i et al., 115 Va. 704, 80 S. E. 794 t^^L • ^ P^ si W v" IfiO^ol*^' McNeil V. Kennedy 107 S. E. 203 '^^Zl ^a^V , T , , ', /■w V 10911 • • ^ ''° ^ pendente Itte pur- y\\. va. LJ^L). chaser from the plaintiff, see Robert- 36 Barr v. Clayton, 29 W. Va. 256; gon v. Staggers & Hines, 104 S. E. Gaston v. Plum, 14 Conn. 344; Grist 768 (W. Va. 1920). V. Forehand, 36 Miss. 69. 38 Barr v. Clayton, 29 W. Va. 256 ; 37 Grove v. Judy, 24 W. Va. 294 Gaston v. Plum, 14 Conn. 344; Grist and 298; McClaskey v. O'Brien, 16 v. Forehand, 36 Miss. 69. W. Va. 794; Kellam v. Sayre, 30 39 See authorities in note 37, W. Va. 198, 3 S. E. 589; Wolver- supra; Ploman v. Riddle, 14 Ala. ton V. Taylor & Co., 157 111. 485, 42 169, 48 Am. Dec. 92. § 39 Equity Procedure 56 without making himself a party to the suit." Indeed, the usual and better practice requires the suit to be brought in the name of the beneficiary, who holds the equitable and substantial title and right to the subject of litigation." So when a party is a mere nominal trustee for another, he has no such interest as will enable him to maintain a suit without joining the cestui que trust as a plaintiff, who is the real party in interest, or making him a defendant to the suit ; ^^ unless he be a trustee in a deed of trust given to secure the payment of a debt, when he may file a bill in his own name, to ascertain the true state of the indebtedness before advertising to sell the property to pay off the indebtedness to secure which the deed of trust was given. ^^ As equity regards substance rather than form,^* and the real parties rather than those possessing mere nominal rights and interests, it follows as a matter of course that the party holding the substantial interest in the subject of litigation may maintain a suit in equity though the legal title thereto may be in another.''^ But in such a case the holder of the naked legal right or title should be before the court as a defendant, if he has not united with the beneficiary as plaintiff." When it appears from the face of the bill that the plaintiff has no interest in the subject-matter of the suit, the objection 4oPlomaii V. Riddle, 14 Ala. 169, 146, 3S S. E. 487. And the general 48 Am. Dec. 92, citing. Field v. rule is that he must make the cestui Maghee, 5 Paige Ch. (N. Y.) 540; que trustent parties defendant. Kogers v. Traders' Insurance Co., 6 Beckwith v. Laing, 66 W. Va. 246, Id. 584; Sedgwick v. Cleveland, 7 66 S. E. 354. In West Virginia, Jd. 287; Coal v. Mildred, 3 Har. & there does not seem to be any ex- J. (Md.) 278. The suit should be ception to the general rule. Morgan, brought in the name of the as- Trustee, v. Ice, et al., SO W. Va. 273, signee. First Nat. Bank of Fair- 92 S. E. 340. mont V. Smith, 103 S. E. 318 (W. 44 Martin v. Smith, 25 W. Va. at Va. 1920). p. 583 in the opinion of Snyder, J.; 41 See authorities in note 37, Sturm v. Fleming, 22 W. Va. 404, supra, and note to Field T. Maghee, in the opinion of the court; post, 3 Law. Ed. K Y. Ch. Rep. at p. 821; § 924. idem, at p. 1112. 45 National Park Bank v. God- 42Malin v. Malin, 2 John. Ch. (N. dard, 131 N. Y. 494, 30 N. E. 566; Y.) 238, 1 Law. Ed. 361; Nichols Castleman v. Berry, 86 Va. 604, 10 V. Williams, 22 X. J. Eq. 64; Flem- S. E. 884; Fleming v. Holt, 12 W. ing V. Holt, 12 W. Va. 143. Va. 143. 43 Pendleton v. Bower, 49 W. Va. -lu Idem. 57 Parties § 40 may be made by demurrer;*' but if it. does not so appear, the objection may be raised by plea or at the hearing." But if objection is not taken until the hearing, if it appears from the record that the plaintiff has any interest in the subject-matter of the suit, and a decree is rendered for the plaintiff, the appel- late court will not reverse the decree because such interest is not stated in the bill." If it be doubtful whether or not a person has such an interest in the subject-matter of the suit as to make him a necessary party, the safe and advisable rule is to make him a party, as the court may withhold its decree in his absence.^" § 40. Suit in the name of one plaintiff on behalf of himself and others. The rule requiring all parties interested in the subject-matter or object of the suit to be made parties, however numerous, is relaxed when its observance becomes extremely difficult or in- convenient,^-' and a person holding a common interest with numerous others may sue in his own name in behalf of himself and such other persons without joining them in the suit.^^ Thus one residuary legatee may file a bill in behalf of himself and *7 Coffman v. Sangston, 21 Gratt. equity in behalf of themselves and (Va.) 263; Barr, et al. v. Clayton, others having a like interest; but et al, 29 W. Va. 256, 11 S. E. 899. in all cases where one or a few indi- es See same authorities. viduals of a larger number insti- ls Coffman v. Sangston, 21 Gratt. tute a suit on behalf of themselves (Va.) 263. and others, they must expressly 50 Donahue v. Fackler, 21 W. Va. state in their bill that it is filed as 124. A misjoinder is less serious, well on behalf of other members of and always is more easily cured, the body as of those who are really than a non-joinder. See post, sec- made complainants. Marsh v. East- tions on misjoinder and non-joinder. ern E. R. Co., 40 N'. H. 548, 77 Am. siHallett V. Hallett, 2 Paige Ch. Dec. 732; Vann v. Hargett, 2 Dev. (N. Y.) 15, 2 Law. Ed. 793. and Bat. Eq. (N, C.) 31, 32 Am. Dec. ^2 Idem; Egberts v. Wood, 3 Paige 689. A decree in equity upon a bill Ch. (N". Y.) 517, 24 Am. Dec. 236. brought by several plaintiffs on be- When the parties interested are half of a greater number having a numerous, and the suit is for an ob- joint and equal interest in the sub- ject common to all of them, some ject of the action, will bind the per- of the body may maintain a bill in sons who are not parties to the bill. § 41 Equity Pbocedttre 58 all others standing m the same situation,"' and it is not neces- sary to make them all actual parties to the suit."'' So where property is held by a trustee for a voluntary, unincorporated association, the members of a committee, appointed to look after the trust, may sue on behalf of themselves and all other mem- bers of the association ; ^^ and so too, a taxpayer may sue on behalf of himself and all others similarly situated, to restrain the collection of a tax illegally levied. ^^ So one member of a voluntary, unincorporated association may sue another member, on behalf of himself and for the benefit of all the other members of such association, for an accounting and the payment of all moneys collected by the defendant belonging to the association, and for any other proper relief against such defendant.^' And likewise, a member of a church, an unincorporated society, the members of which are too numerous for their all suing, may sue on behalf of himself and the other members for a debt due the church.'* § 41. Necessary and proper parties, plaintiff and defendant, in different matters of equity jurisdiction. It is important to note that in a court of equity, the same person, acting in different capacities, may be both a plaintiff and a defendant in the same suit, which is not permissible at law.'' so far as to determine the validity so McClung v. Livesay, 7 W. Va. of their claims as a just demand, 329; Williams v. County Court, 26 but such parties will not be bound W. Va. 488, 53 Am. Rep. 94; Car- by an account taken in the action, ruthers v. Board of Education. 16 until they have been allowed an op- W. Va. 527 ; Lynchburg, etc., Ey. portunity to be heard. Vann v. Har- Co. v. Dameron, et al., 95 Va. 54.5, gett, supra. So may one defendant 28 S. E. 951. be represented by another in a simi- =" Coffman v. Sangston, 21 Gratt. lar situation. But in no instance (Va. ) 263; Perkins v. Siegfried, 97 can one party be represented by an- Va. 449, 34 S. E. 64; Berkshire v. other to whom his interests are ad- Evans, 4 Leigh. (Va.) 223; .Sang- verse. Beeeher v, Foster, et al., 51 ston v. Gordon, 22 Gratt. (Va. ) 764. W. Va. 605, 619, 42 S. E. 647. ss Perkins v. Siegfried, 97 Va. 449, 63 Hallett V. Hallett, supra. 34 S. E. 64. 64 Idem. 59 Swearinger v. Steers, 49 W. Va. 66Guilfoilv. Arthur, 158 111. 600, 312, 38 S. E. 510; Cann v. Cann, 41 N. B. 1009. 40 W. Va. 138, 20 S. E. 910; Sweet- 59 Parties § 41 "At law, a disputed issue alone is contested; the immediate disputants alone are bound by the dficision, and they alone are proper parties to the action. In equity, a decree is asked, and not a decision only; and it is therefore requisite that all persons should be before the court whose interest may be affected by the proposed decree, or whose concurrence is necessary to a complete arrangement. The same reason which requires that the immediate disputants be the only parties at law also re- quires their arrangement as parties plaintiff and defendant, so that all the plaintiffs shall support one side, and all the defend- ants the other side, of the question in issue. In equity, it is only requisite that the interests of the plaintiffs be consistent, and it is immaterial that the defendants are in conflict with each other, or that some of their claims are identical with those of the plaintiffs." «« As to who should or may be a necessary or proper party to a suit in any particular matter of equity jurisdiction, which is of great practical importance to the student and practitioner, will be considered under distinct sections, embodying in the same section both the plaintiff and the defendant; though in the light of the principles already announced the question as to who may be a plaintiff will be of easy solution, so that the chief question usually arising will be that of the sufficiency of the bill as to the necessary or proper parties defendant. Keeping this in mind, we shall consider, under distinct section titles, who may be necessary and proper parties, plaintiff and defendant, to a suit in many different and various matters that may be the subject of equity jurisdiction, both concurrent and exclusive. ^^ land V. Porter, 43 W. Va. 189, 27 S. ler v. Taylor, 49 W. Va. 104, 115, E. 352; Spooner v. Hilbish, 92 Va. 38 S. E. 583. A co-plaintiff who 333, 23 S. E. 751. refuses to act as such may be trans- 60 Meek v. Spracher, 87 Va. 162, posed to the defendant's side of the 12 S. E. 397. "The position of the case and the case may proceed parties on the record as plaintiffs against him as a defendant. Mc- or defendants is immaterial; all are Conaughey & Co. v. Bennett, 50 W. actors." Gray, J., in McArthur v. Va. 172, 40 S. E. 540. Scott, 113 U. S. 386, quoted in Sad- ei §§ 42, et seq. [4] §42 Equity Peocedube 60 § 42. In matters of abatement, whether as to purchase money or otherwise. One who has purchased land by the acre, where there is a ma- terial deficiency in the quantity of land so purchased, ^^ may bring suit to have the purchase money abated,^' and this, too, though he has paid all the purchase money which constituted the contract price of the sale of the land to him.** But to authorize one to complain of such deficiency, and obtain relief in a court of equity, the sale must have been by the acre and not in gross,*' and especially in the absence of fraud or misrepre- sentation.** But where these latter facts are made to appear, the party, in most cases, has a right to relief as a plaintiff in a court of equity.*' Where land has been conveyed by the acre by a vendor, and by mutual mistake of fact, the conveyance transfers more land than the vendee bargained for or paid for, such vendor may maintain a bill as plaintiff in a court of equity, to recover com- pensation for such excess of land so conveyed by him.** 82 Hogg, Eq. Pr., §12, p. 21. 63 Keyton v. Brawford, 5 Leigh (Va.) 39. "The right of a vendee of land to have an injunction to protect him from the payment of the purchase money, upon proof of an actual outstanding superior title in a third person, is now the estab- lished doctrine of our courts; yet his right to such relief must depend upon the equity of his case.'' Idem. See Koger v. Kane, 5 Leigh (Va.) 606; Smith v. White, 71 W. Va. 639, 645, 78 S. E. 378. 6< Kelly V. Eiley, 22 W. Va. 247 ; Newberger v. Wells, et al., 51 W. Va. 624, 630-1, 42 S. E. 625. But equity has no jurisdiction to decree compensation for loss, by superior title, of a portion of the land con- veyed. Lewis V. Cregar, et al., 73 W. Va. 564, 80 S. E. 957. Other- wise, where there has been no evic- tion. Wilson V. McConnell, et al., 72 W. Va. 81, 77 S. E. 540. 65 Reed v. Patterson, 7 W. Va. 263; Newman v. Kay, 57 W. Va. 98, 49 S. E. 926; Light v. Grant & Co., 73 W. Va. 56, 59, 79 S. E. 1011. 66 Reed v. Patterson, 7 W. Va. 263; Crislip v. Cain, 19 W. Va. 442, syl. 20. When land is sold in gross, a mutual innocent mistake as to the quantity is not ground for re- scission. Xewman v. Kay, 57 W. Va. 98, 49 S. E. 926. 67 Crislip V. Cain, 19 W. Va, 442 ; Butcher v. Peterson, 26 W. Va. 447, 53 Am. Rep. 89; Kelly v. Eiley, 22 W. Va. 247 ; Anderson v. Snyder, 21 W. Va. 632; Light v. Grant & Co., 73 W. Va. 56, 59, 79 S. E. 1011. osMasaie'a Adtmr. v. Heiskell's Trustee, et al., 80 Va. 789; Hogg, Equity Princp., § 13, p. 21 ; Craig, et al. V. Gauley, etc., Co., 73 W. Va. 624, 80 S. E. 945. 61 Parties § 43 As to parties, either plaintiff or defendant, to suits to abate purchase money or to recover for an excess in the quantity of land sold, an examination of the authorities discloses that they must usually, if not always, be the persons who are the immedi- ate parties to the contract, or have such an interest in the object or result of the suit that they must be before the court as de- fendants to the suit.^^ Hence, if a part of the land, concerning which an abatement of purchase money is sought, is claimed by a third party under an alleged title paramount, such third party is not a proper party in a suit concerning purchase money, nor can his adverse claim be adjudicated therein ; "* although the rule formerly was stated otherwise.''' When suit is brought by a legatee, either to abate from or add to the legacy, the bill may be in the name of one legatee as plaintiff on behalf of himself and the other legatees, who may choose to come in and unite in the suit, against the executor as defendant for an account and payment " § 43. In matters of account. Inasmuch as an account may become necessary in various matters of equity jurisdiction, as in suits relating to partner- ships or personal representatives," we may more appropriately defer this subject to the subsequent sections of this chapter, than to consider it here, further than to state that all persons having an interest in the account are necessary parties, and should be made such, either as plaintiffs or defendants." 69Koger V. Kane, 5 Leigh (Va.) (N. Y.) 553, 1 Law. Ed. 714 and 606; Abernathy v. Phillips, 82 Va. notes. 769, 1 S. E. 113. See tlie authorities 73 story, Eq. PL, § 218. cited under §§7-14, Hogg, Eq. Pr., lildem; Ruflfner, Donnally & Co. pp. 10-23. V. Hewitt Kerchival & Co., 14 W. 70 Miller v. Morrison, 47 W. Va. Va. 737; Petire v. Petire, 7 Lans. 664, 35 S.E. 905; Dunbar v. Dun- (N. Y.) 90. bar, 67 W. Va. 518, 68 S. E. 120. The wife is not a necessary party 71 Heavener v. Morgan, 30 W. Va. to a suit by a husband for an ac- 335, 4 S. E. 406, 8 Am. St. Rep. counting under an oil reservation. 55. Campbell v. Lynch, 106 S. E. 869 72 Brown v. Ricketts, 3 Johns. Ch. (W. Va. 1921). § 44 Equity Procedure 62 § 44. In the matter of agency. As we have already seen,'^ no person should be made a party to a suit who has no interest therein. Upon this principle, a person who is a mere agent in the transaction, to which the suit relates, ought not to be made a party to a bill ; as for instance, a mere agent employed to pr(x;ure the title to real estate, and convey it to his principal, and who has done so, is not a proper party to a bill against his principal to set aside a deed for fraud. and to recover the property and its proceeds. ''* So an agent authorized to sue can not file a bill in his own name.'^ But if there is any charge of fraud connected with the transaction, in which the agent, attorney or other person, as the case may be, participated, and the same is so alleged in the bill, then the agent is a proper party to the suit.'' Thus a party who is charged in the bill with participation in the forgery of a deed to land, and of taking and certifying a false and fraudulent certificate, as a notary public, in the acknowledgment of such deed, for the purpose of cheating and defrauding the true owner, to the interest and advantage of such notary public, the object of the bill being to have such deed delivered up to be can- celled, is a proper party defendant to such bill.'' But it is not proper to make a defendant's attorney, against whom no relief and from whom no discovery is asked, a party defendant to a 75 Ante, % 37. in interest to sue except in certain ■78 Donovan v. Campion, 8.5 Fed. cases where the complainant repre- 71, 29 C. C. A. 30. A mere agent sents the right of those for whom of a, vendor or vendee, as such, is the suit is brought, as in the case not a proper party in a suit for of executors and trustees. Oakey Bpecifie performance. But where, as v. Bend, supra, and authorities cited agent of the vendor, he takes pur- in the note therein, in 6 Law. Ed. chase money bonds in his own name, 733. he becomes a trustee holding the "8 Story, Equity Pleading (Nintli legal title to the bonds, and as such, Ed.), § 232. is a necessary party. Tavenner v. '9 Alexander v. Davis, 42 W. Va. Barrett, 21 W. Va. 656. 465, 26 S. E. 291. As to when it T7 Oakey v. Bend, 3 Edw. Ch. (N. is proper to join an agent with a y.) 482, 6 Law. Ed. 733. Courts corporation defendant, vide post. of chancery require the real party §§ 176, 435. 63 Parties § 46 bill for an injunction.*" Nor is he a proper party to an action to restrain his clients from ('lie prosecution of a suit, where noth- ing is alleged against him, except that he was discharging his duty as an attorney in prosecuting the action, and no relief but an injunction is demanded against him.^^ It may here be stated that the courts are not inclined to extend the rule relative to making a mere agent a defendant to a suit, and the practice seems to be limited to cases of fraud, as that word is generally understood in a court of equity, and does not apply where, though the agent acts erroneously, he acts openly and avow- edly.«2 § 45. In the matter of alimony. While the weight of authority in the courts of the United States is against the maintenance of a bill for alimony alone, by any one as plaintiff,*' yet in West Virginia and in Virginia, and in some other states, the wife may do so as plaintiff, but not the husband.** Of course in this class of cases the husband is always a defendant, and the only one, unless matters incident to such suit arise making it necessary to bring other parties into the suit ; as, for illustration, those to whom the husband has conveyed his property in fraud of the rights of his wife.*^ § 46. In the matter of the anniilment of marriages. In the ecclesiastical courts of England, when they had juris- diction in such cases, any person having an interest in the mar- riage could maintain a suit to annul it, as a brother, sister or father ; *" but with us the suit should be brought in the name of one of the parties to the marriage as plaintiff against the other 80 Fletcher, Eq. PI. and Pr., §45, ^* Idem, §§444, 445; Re Popejoy, citing, Hopson v. HarrcU, 56 Mias. 26 Col. 32, 55 Pac. 1083; Garland 202. V. Garland, 50 Miss. 694; Huff v. 81 Idem, citing, Ely v. Lowenstein, Huff, 73 W. Va. 330, 80 S. E. 846. 9 Abb. Pr. (U. S.l 37. 85 Hinds v. Hinds, 80 Ala. 225; »- Idem, citing, Lyon v. Tovis, 8 Damon v. Damon, 28 Wis. 510. Iowa 79 ; Marshall v. Sladden, 7 86 Ray v. Sherwood, 1 Curt. Eccl. Hare 428; Ottwood v. Small, 6 193; Chicle v. Ramadale, 1 Curt. Clark and F. 352. Eccl. 34; Woods v. Woods, 2 Curt. 83 Hogg, Eq. Pr., §444. Eccl. 516; Faremouth v. Watson, 1 § 48 Equity Procedure 64 as defendant, and the right to bring the suit extends to either party." If the plaintiff be under the disability of infancy, the suit should be brought by the next friend,*^ and if the defendant be under such disability his appearance should be by guardian ad Utem.^^ § 47. In matters of arbitration and award. In a suit to set aside an award, any one interested in it may bring suit to set it aside; and where several parties having a common interest in a matter in dispute, join in its submission to arbitration, and a single award is made, they may join as plaintiffs in a bill to set it aside.'" An arbitrator ought not to be made a party plaintiff or de- fendant to a bill filed to enforce or set aside an award. '^ How- ever, if the bill charges fraud on the part of the arbitrator, he may be joined as a defendant to the suit.'^ Of course, the de- fendants to a suit to enforce or set aside an award should be the parties who are interested in, or affected by, its execution, who have not been made plaintiffs in the cause. '^^ §48. In matters of assignment. Where equity has jurisdiction to enforce the right, the as- signee may be the plaintiff in the bill suing as such in his own name,'' but he can not bring a suit in equity on a mere legal Phillim. 355; Wella v. Cottam, 3 ^8 Wood v. Wood, 2 Paige Ch. (N Sw. and Tr. 364; Bowzer v. Rick- Y.) 109, 2 Law. Ed. vS33. etta, 1 Hagg. Con. 213; Wadsworth ibidem. V. Wadsworth, 81 Cal. 182, 15 Am. 90 Hartford F. Ins. Co. v. Ban- St. Rep. 38, 22 Pac. 648; Devan- ner Mercantile Co., 44 Fed. 151. baugh V. Devanbaugh, 5 Paige Cli. 91 Story, Eq. PI., § 231 (N. Y.) 554, 28 Am. Dec. 443, 3 ^^ Idem, §232; Alexander v. Law. Ed. 827. Davis, 42 W. Va. 465, 26 S. E. 291. 87 Cropsey v. McKinney, 30 Barb. 92a Simmons v. Simmons 85 W (N. Y.) 47; Pence v. Aughe, 101 Va. 25, 100 S. E. 743. Ind. 317; Ridgely v. Ridgely, 70 Md. 93 Moore v. "Veazie, 32 Me 343 52 298, 29 Atl. 597; Rawson v. Raw- Am. Dec. 655; Atherton v Hull' 12 son, 156 Mass. 578, 31 N. E. 653. W. Va. 170; The Exchange Bank of See Crouch v. Wartenberg, 104 S. Va. v. Morrill, 16 W. Va 546- Tav- E. 117 (W. Va. 1920). lor v. Ficklin, 5 Munf. " (Va.') 25; 65 Parties § 48 demand as the assi^ee thereof, in the absence of some impedi- ment or obstruction to the assertion of his right in a court of law.^* "It is a question constantly recurring in all courts of equity how far one who is a party to the contract, but who has assigned his interest, is a necessary party to a suit affecting the subject-matter of the contract." '^ The question usually arising in suits involving matters of assignment, is that relating to the necessity of making the assignor of the right a party to the cause. This has given rise to considerable discussion by courts and lawyers, and the application of the rules and principles evolved from this discussion is not infrequently difficult to make. But "the rule is perfectly undeviating, that no person need be joined in a suit in equity, either as plaintiff or defendant, upon the ground merely of having been a party to the. contract, if he is no longer interested in the controversy. ' ' '* In all eases the assignor may be made a formal or nominal party to the suit, at the option of the plaintiff,, though he be not a necessary party to it.'' According to the ancient practice of the English court of chancery, the assignor of a chose in action Mosely v. Boush, 4 Rand. (Va. ) gation. Hence assignees of all the 392; Aylett v Walker, 92 Va. 540, interest to rights and contracts may 24 S. E. 226; Bristol Iron & Steel maintain suits respecting them in Co. V. Thomas, !I3 Va. 396, 25 S. courts of equity. Whitney v. Mc- E. 110; Penn, et al. v. Hearon, 94 Kinney, 7 Johns. Ch. 144; Treco- Va. 773, 27 S. E. 599. thick v. Austin, 4 Mason, 41." In Moore v. Veazie, 32 Me. 343, "The assignor of a chose in ao- 52 Am. Dec. 655, in maintaining tion can not sue alone in equity for the right of an assignee to sue alone the benefit of his assignee, not being in his own name, the court in its the real party in interest, yet the opinion says: "The right of the defect of parties is cured if the as- plaintiff to maintain the suit in his signee is made a party to the cross- own name, and not in the name of bill, and files his answer thereto." the corporation, is for the first time Hurt v. Miller, 95 Va. 32, 27 S. E. denied. The law is different as ad- 831. ministered in courts of equity and 94 i Beach, Mod. Eq, Jur., § 325. courts of law respecting parties See W. Va. Code, 1913, c. 99, § 16. plaintiff. Courts of equity do not »5 Lynchburg Iron Co. v. Tayloe, so much regard technical difficulties 79 Va. at p 674. as they do the fact that the suit so Lynchburg Iron Co. v. Tayloe, is prosecuted by those who repre- 79 Va. 671, opinion of the court at sent the entire legal and bene- p. 675. ficial interest to the matter in liti- »7 Story, Eq. PI., § 153. §48 Equity Procedure 66 was always a necessary party to a bill to enforce its payment." But this rule no longer obtains, so that now the assignor is not a necessary or indispensable party to the suit when the assign- ment is absolute and unconditional, leaving no equitable interest in the assignor, and the extent and validity of the assignment is neither doubted nor denied, and there is no remaining liability in the assignor to be affected by the decree ; ^^ or if the assign- ment purports to transfer the whole interest of the assignor, and there is nothing in the pleading and proofs indicating other- wise,"" as where a mortgagee who has assigned all his interest in the note and mortgage by endorsement on the note, such mortgagee is not a necessary party to a suit to reform and fore- close the mortgage;"' nor is the assignor a neesesary party »8 2 Bob. Old Practice, 272 ; Cath- cart V. Lewis, 1 Ves .Tr 463; Mitf PI. 179. 99 Vance v. Evan.s, 11 W. Va. 342; Chapman v. P. S. & R. R. Co., 18 W. Va. 184; Lynchburg Iron Co. V. Tayloe, 79 Va. 671, especially at p. 674, citing many cases; James v. Burbridge, 33 W. Va 272, 10 S. E. 396; Castle Brook Carbon Black Co. V. Ferroll, rt nl., 76 W. Va. 300, 85 S. E. 544. 10" Scott y. Luddington, 14 W. Va. 387; Keister v. Myers, 115 Ind. 312, 17 N". E. 161; James River & Kanawha Co. v. Littlejohn, IS Gratt. (Va.) 53; Castle Brook Carbon Black Co. V. Ferrell, et at, 76 W. Va. 300, 85 S. E. 544. "Assignor of land affected by a trust is not a necessary party to a bill against his assignee in an ac- tion by a surety of the former to charge lands in the hands of the lat- ter for the payment of the purchase price for which the surety was bound, when the bill sets out that the defendant is the assignee of the entire interest in the land." Polk V. Gallant, 2 Dev. and Bat. Eq. (N. C ) 395, 34 Am. Dee. 410. To this case as reported in 34 Am. Dec. at p 414, the following note is ap- pended: "Assignor need not be made a party to an action against the assignee when the bill and answer show the latter to have been the transferee of the entire interest. Mullins V. McCandless, 4 .Jones' Eq. 425. citing the principal case. But where a petition was filed against the administrators of a decedent, praying for a decree to compel them to pay over to the petitioner a dis- tributive share of the estate, to which he claimed title by an assign- ment to him by one of the heirs and distributees, and the mstrument on which his claim is based does not, on its face, purport to be an assign- ment, it was held, on the authority of the principal case, that the in- testate's other heirs should be made parties. Clark v. Edney, 6 Tred. L. 50." 101 Keister v. Myers, 115 Ind. 312, 17 N. E. 161. 67 Parties § 48 where the assignment is an absolute and unconditional one,^"^ as in the case of the unconditional assignment of a decree, based on the foreclosure of a mortgage, in a suit by his assignee against the grantee of the mortgagor, who has assumed the pay- ment of the mortgage debt."' But the assignor is an indispen- sable party where it is necessary to adjudicate the rights of an assignee.!"* Thus if the payee or owner of a note assigns the same and by the assignment reserve an interest in the note to himself, such assignor, or, if he be dead, his personal representa- tive, is a necessary party in any suit in which the assignee seeks payment of the note, or in any suit in which the note becomes the subject of controversy.'"^ And where one files a petition in a pending cause to assert his claim of ownership to a debt reported in such suit, the as- signor must be made a party to such petition and summoned to answer the same; ■'"''' so where an assignment has been made for a particular purpose, as for collection only, the assignor is a necessary party.'"'' The assignor is also a necessary party "where the assignment is not absolute and unconditional, or the extent or validity of the assignment is disputed or denied, or there are remaining rights or liabilities of the assignor, which may be affected by the decree." '"^ So "where the assignor is a mere trustee for the benefit of a third person, upon a special trust, which he violates by the assignment of the property, if such third person should bring in a bill to enforce the trust against the assignee, the trustee, or his proper representatives, should be made parties; for in such a ease the proper decree would be to compel the assignee to perform the trust, and the trustee to stand as a security for having broken the trust. ' ' "' 102 latum V. Ballard, 94 Va. 370, io4 Vance v. Evans, 11 W. Va. 26 S. E. 871, citing, Omohundro v. 342. Henson, 26 Oratt. (Va.) 511; James ^"s Idem. Eiver & Kanawha Co. v. Littlejohn, loe Daily v. Warren, 80 Va. 512. 18 Gratt. (Va.) 53; 1 Bart., Ch. Pr., "i? Lynchburg Iron Co. v. Tayloe, 163; Castle Brook Carbon Black Co. 79 Va. 671. V. Ferrell, et at, 76 W. Va. 300, 85 los story, Eq. PI., § 153. S. E. 544. -^09 Idem, § 155. 103 Tatura V. Ballard, 94 Va. 370, 26 S. E. 871. §48 Equity Procedure 68 And so where a bill is filed by the assignee of a .iudgment to enforce its payment, the assignor is a necessary party.-'" The assignor of a bond must be made a party in a suit against the assignee calling him to account for it by one claiming to be entitled to the land.^'^ In such a case it is not sufficient answer that the assignor is dead and that there is no personal repre- sentative, as it is the duty of the party seeking relief to procure a representative, and it is therefore no answer for the plaintiff that he is the representative."^ With reference to making the assignee a party to the suit, it is laid down by high authority that he must be a party to a bill filed to enforce or set aside his rights, as the person having the beneficial interest in the subject-matter of litigation.^^^ But, generally speaking, an assignee, pendente lite, need not be made a party to a bill, or in any manner brought before the court,*** no I Daniel, Ch. Pr. 199. 1" May V. Smith, Busbee's Eq. (N. C.) 196, 59 Am. Dec. 594. "2 May V. Smitli, Busbee's Eq. (N. C.) 196, 59 Am. Deo. 594. In its opinion announcing the principle laid down in the text, the court, in the case last above cited, says: "The reason of the general rule above stated is that a court of equity seeks to arrange by one suit all the claims arising out of the same transaction between the par- ties interested. The defendants, then, are entitled to have the repre- sentative of Reading Anderson be- fore the court, in order that their respective rights and interests grow- ing out of the transaction may be settled. Another reason is that the estate of Anderson is primarily an- swerable, and the defendants sec- ondarily. If the representative of Anderson was properly before the court, and the plaintiff entitled to a decree, the decree would be that it should be discharged in the first place out of his estate, and if there were no assets, or not sufiBcient, then by the defendant Paul. PoweU v. Matthias, 4 -Ired. L. 84 (40 Am. Dec. 427 ) ; Murphy v. Moore, 4 Ired. Eq. 118; Hoyle v. Moore, Id. 175. It is objected on the part of the plaintiff May that he is the repre- sentative of Anderson, and that he could not make himself a defendant. But who has placed him in that position? It was his own voluntary act, and he must abide the conse- quences. It is no sufficient answer to the objection for the want of parties that one is dead and there is no personal representative. It is the duty of those sec^king relief by bill in equity in a matter in which the deceased person is interested to procure a representative, and it can therefore be no answer for the plaintiff that he is the representa- tive. Martin v. McBryde, 3 Ired. Eq. 531." 113 Story, Eq. PI., § 154. 114 Idem, § 156. 69 Parties § 49 although the plaintifif is aware of the assignment/^' as he is treated as a purchaser with notice, and subject to all the equities of the persons under whom he claims in privity; ^^^ and it makes no difference whether such assignee or purchaser be the claimant of a legal or equitable interest, and whether he be the assignee of the plaintiff or defendant."' But a pendente lite purchaser may become a party to the suit, and he will then be subrogated to all the rights of his vendor and may be permitted to answer the bill, in the manner and within the time allowed any other defendant.^^^ "In general, a plaintiff who assigns pendente lite should not continue to prosecute the suit." ^" § 49. In matters of attarchment. Where proper ground for attachment exists, and is properly shown, a party may, in "West Virginia, be plaintiff to a bill in equity, to enforce any demand whether legal or equitable, whether arising ex contractu or ex delicto, and whether due or not due.^^" The same rule obtains in Virginia with reference to bringing suits in equity, except that a claim to mere damages for a wrong can not be so enforced,*^* and in any case the claim must exceed twenty dollars exclusive of interest.'^^ And in Vir- ginia a party can not bring suit as the plaintiff therein, to main- iisNorris v. He, 152 111. 190, 43 PI (Tenth Ed.), §1.56; Mason v. Am. St. Rep. 233, 38 N. E. 762. R. Co., 52 Me. 82 (1861)." I White- ns Harman V. Byram, 11 W. Va. house, Eq. Prac. 139, note. 511; Wilfong v. Johnson, 41 W. Va. "s/i^Bm, citing, Smith v. Britten- 283, 23 S. E. 730; Arnold v. Casner, ham, 109 111. 540; Bailey v. Smith, 22 W. Va. 444; Zane v. Fink, 18 10 R., cl. 29; Campbell v. Shipman, W. Va. 693; Sharitz v. Moyera, 99 87 Va. 655. Va. 519, 39 S. E. 166. 120 Hogg, Eq, Pr., § 36, p. 52, cit- 117 /dem; Lynch v. Andrews, 25 ing, W. Va. Code, 1913, c. 106, % 1; W. Va. 751. McKinsey v. Squires, 32 W. Va. 41, lis Sharitz v. Moyers, 99 Va. 519, 9 S. E. 55 ; Livey v. Winton, 30 39 S. E. 166. "It may be important, W. Va. 554, 4 S. E. 451; Peyton v. however, to bring such assignees be- Cabell, 25 W. Va. 540. But see the fore the court by supplemental bill last paragraph of § 1, c. 106, W. in order to take away a cloud on Va. Code, 1913. the title or to compel the assignees 121 Va. Code, 1904, § 2964. to join in some act or to join in las/rfem. some conveyance. See Story's Eq. § 50 Equity Procedure 70 tain an attachment for a debt not due, when the only ground for the attachment is the non-residence of the defendant.-'^' An accommodation maker of a negotiable note may be the plaintiff to a bill brought to collect a debt not due ; ^^* so a non- resident of the state may proceed as the plaintiff in an attach- ment suit.^^^ Necessary parties defendant to the bill are, of course, the at- tachment debtor and owner of the property attached ; *^* the mortgage lienholders in a suit against the mortgagor,*^'' and it is usual and proper to make the person sought to be held as a garnishee a party defendant to the cause. ^^* "The rule requiring all persons in interest to be made parties to a suit, applies as well to an attachment in chancery as to any other suit ; and so it has been held that where there are two obligors, one of whom is in and the other out of the state, and the suit is brought against the absent defendant, the other should also be made a party." ^^^ But where the suit is for the purpose of attaching and selling the undivided interest of a tenant in common, the co-tenants of such debtor are not proper parties to such suit.^'° § 50. In the matter of the cancellation and rescission of writ- ten instruments. Cloud upon title to real estate. The grounds upon which a court of equity will cancel a writ- ten instrument or rescind a contract are varied and numer- ous ; ^^^ .but the principle determining who are necessary or proper parties to a suit for this purpose is the general one which i23Wingo V. Purdy, 87 Va. 472, la? Schleutkor v. Glade, 45 S. W. 12 S. E. 970. 521, 20 Ky. Law Rep. 205 (not to 12* Aultmyer v. Caulfield, 37 W. be reported). Va. 847, 17 S. E. 409. 1=8 Hogg, Eq. Pr., § 42, p. 71. 125 Sheldon v. Blanvelt, 29 S. C. 1291 Bart., Ch. Pr. (Second Ed.) 453, 7 S. E. 593, 1 L. R. A. 685, 616, citing, Loop v. Summers, 3 13 Am. St. Eep. 749; Gibson v. Rand. (Va.) 511. Everett, 41 S. C. 22, 19 S. E. 286. iso Curry v. Hale, 15 W. Va. 867. i26WiIliard v. Cunningham "i Hogg, Eq. Pr., §45, pp. 79, (Tenn), 48 S. W. 399. 80. 71 Parties § 51 applies to all suits in equity, and what is here stated is little more than an illustration of this principle. The plaintiff in the bill to cancel an instrument casting a cloud upon title to real estate must be the legal owner in actual possession of the land,^'^ unless it be a suit to cancel a tax deed, or remove a cloud upon an estate in remainder, or the owner's title is a mere equitable one, in all of wliich instances possession of the land by the plaintiff is not essential to the maintenance of the suit.''^' Thus, a mortgagee may sue to set aside an illegal tax sale of part of the mortgaged land, even though the mort- gage debt could be collected by a sale of the rest of the mort- gaged land, and a suit against the mortgagor.^'* The defend- ants in a suit to cancel a cloud upon realty must be all those who have or claim any interest, right or title under the instru- ment or writing sought to be cancelled by the suit.'"^ Thus in a suit to cancel a tax title as creating a cloud upon the former owner's title, the purchaser at the tax sale is a necessary party.*'* § 51. Cancellation in cases of fraud. When fraud is made the ground for the cancellation of a con- tract or other writing, the plaintiff in the bill must be the party 1^2 Idem, §46, pp. 82, 83; Har- 353, 32 N. E. 267; Maynard v. man v. Lambert, 76 W. Va. 370, 85 Shein, 83 W. Va. 508, 98 S. E. 618; S. E. 660; Grass, et al. v. Beard, Bonafede v. Grafton Feed & Storage 73 W. Va. 309, 80 S. E. 835; Co., 81 W. Va. 313, 94 S. E. 471. Chambers v. Perrine, 81 W. Va. 321, In a suit to cancel, or reform, an 94 S. E. 381. oil and gas lease on the ground of m Idem, pp. 83, 84; Blake v. fraudulent alteration by the lessee, O'Neal, 63 W. Va. 483, 61 S. E. the lease having been executed by 410; Custer v. Hall, 71 W. Va. 119, and the rentals reserved to the les- 129, 76 S. E. 183; Buchanan Co. v. sor and his wife, jointly, the wife Smith, et al., 115 Va. 704, 80 S. is a necessary party, and the fact E. 794. that she is a witness for her hus- 134 Miller v. Cook, 135 111. 190, band in the cause does not dispense 25 N. E. 56. with the necessity of making her a 135 Brown v. Brown, 97 Ga. 531, party. Coffman v. Hope Natural 33 L. R. A. 816, 25 S. E. 353; Hitch- Gas Co., 74 W. Va. 57, 81 S. E. 575. cox V. Hitchcox, 39 W. Va. 607, 20 136 Ostrander v. Darling, 127 N. S. E. 595; Kuseh v. Kusch, 143 111. Y. 70, 27 N. E. 353. §51 Equity Peoceduee 72 injured by the transaction, and not a stranger thereto, and who did not himself participate in the f rand ; '" thus where a deed for real estate has been obtained by fraud the grantor is the proper party plaintiff,"' or if he be dead the suit should be brought in the name of his heirsnat-law.'" The defendant to the suit should be the party who perpetrated the fraud;"" and, where either cancellation or rescission is sought, it is necessary to have before the court all parties with whom the plaintiff made the contract and whose rights will be afffeeted by the decree ; ^*^ so the grantee in a deed which the grantor seeks to cancel or rescind should be a defendant, or, if he be dead, his heirs-at-law; "^ or if the cancellation is urged on the ground that the grantee has failed to perform his cove- nants, and that the consideration has failed, the assignee of the grantee is a necessary party to the suit.^*^ isTBupuy T. Williiims, 26 Cal. 309; Warburton v. Aken, 1 McLean (U. S.) 460; Creath v. Sima, 5 How. (U. S.) 192; Wilson v. Bird, 28 N. J. Eq. 352. lasyeamana v. James, 27 Kan. 195. I3» Idem. 140 Benzein v. Lenoir, 1 Dev. Eq. (N. C.) 225. Ki Board of Supervisors of Doug- lass County V. Walbridge, 38 Wis. 179; Constant v. Lehman, 52 Kan. 227, 34 Pac. 745. A notary who takes a false acknowledgment is a proper party. Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291. A trustee induced by fraud to make a conveyance is a necessary party in a suit to cancel the conveyance. Humphrya v. Humphrys, 31 W. Va. 561, 8 S. E. 283. So are heirs of a vendor necessary parties. Robert- son V. Hogsheads, 3 Leigh (Va.) 667. "On a bill to rescind a con- tract for the sale of land, all those substantially interested in the con- tract should be parties, unless the interests are separable; and if the case can be completely decided as be- tween the parties, the fact that an interest exists in another whom the court can not reach by process will not prevent a decree; but if an in- terest does exist in another, by rea- son of whose absence the case can not be completely decided as be- tween the parties, and whom the court can not reach by process, that fact will prevent a decree." Bonsai V. Camp, 111 Va, 595, 69 S. E. 978. 112 Oliver v. Clifton, 59 Ark. 187, 26 S. W. 817. 143 Savannah, etc., R. Co. v. At- kinson, 94 Ga. 780, 21 S. E. 1010; Kelley v. Boettcher, 29 0. C. A. 14, 26, 30, 56 U. S. App. 363, 85 Fed. 55. 73 Parties § 53 § 52. Cancellation in cases of mistake. In order that a party may be the plaintiff in a bill brought to cancel or reform an instrument on the ground of mistake, he must be an original party to the instrument, or one claiming under him in privity, but on behalf of persons not thus con- nected, a court of equity will not lend its aid.**'' "All parties who would be affected by the correction of the mistake must be made parties to the suit." ^*^ But an innocent purchaser for a valuable consideration, without notice, can not be affected by the reformation of a contract by reason of any mistake in its execution, and hence can not properly be made a defendant to a bill filed to correct such mistake.-'''* But in a suit to reform a contract because of mistake, not only the origi- nal parties thereto, but those claiming under them as heirs, devisees, judgment creditors, or purchasers with notice of the facts, are proper, and it would seem, necessary parties defend- ant."' § 53. Cancellation in cases of inadequacy of consideration and misrepresentation. What has been said with reference to parties as to matters of fraud and mistake, properly applies here, as misrepresentation is but one phase of fraud,**' and mere inadequacy of considera- tion does not constitute ground for cancellation or rescission of an instrument, unless so great as to shock the conscience and confound the judgment of a man of common sense, and thus raise the presumption of fraud or collusion."' 14* White V. 'Venison, 6 Blackf. "nS Enc. PI. and Pr. 801; 9 C. (Ind.) 448; Sample v. Rowe, 24 J. 1225-6, 1227-8. Ind. 208; Morris v. Stern, 80 Ind. i^sHogg, Eq. Pr., p. 92. 227; East v. Pedin, 108 Ind. 92, 8 i*b Idem, §51, pp. 90, 91. But it N. E. 722. is familiar practice for equity to 145 14 Enc. PI. and Pr. 46; 9 C. grant relief on failure of considera- J. 1225. tion. Goldsmith v. Goldsmith, 46 146 18 Enc. PI. and Pr. 801; 9 C. W. Va. 426, 33 S. E. 266; Fluharty J. 1222; Dunfee v Childs, 59 W. v. Fluharty, 54 W. Va. 407, 46 S. Va. 225, 53 S. E. 209 ; Hill v. Horse E. 199. "The executor of the will Creek Coal Land Co., 70 W. Va. 221, 73 S. E. 718. § 55 Equity Procedure 74 § 54. Cancellation in cases of undue influence. The question of undue influence usually arises in matters of contest touching deeds and wills; '^^ but while this is so, any act done or instrument procured by this inrHns may be avoided in a court of equity.^^^ And here it may be observed that undue influence is a species of fraud,^^^ so that what has been said under a previous section ^^' applies here. The suit should be in the name of the party against whose rights and interests the result of the undue influence has operated.'^* Of course, the defendants in the suit should be the parties who will be afifected by the decree sought by the plaintiff in the bill, even though the undue influence may have been exerted by one who has no interest under the instrument to be cancelled.*^* § 55. Cancellation in cases of infancy. A party who has conveyed property or entered into any other improvident contract during infancy, may maintain a suit in his own name to cancel the deed or other instrument of transfer or of contract upon his attaining his majority."* But if the infant sues during his minority, he must do so in his own name,"' by his next friend.^'* And suit may also be brought by the adult himself, upon the infant's disaffirmance of the con- tract, when the infant subsequently claims to affirm it.''^' of a deceased person ma; prosecute Lefew v. Hooper, 82 Va. 946, I S. a suit to set aside, for failure of E. 208. con&ideratioTi, a deed conveying '■''^ Graham v. Burch, 44 Minn. 33, away land he is authorized by the 46 N. W. 148. will to sell." White, et al. v. 'MHogg, Eq. Pr., §58, p. 99; 18 Bailoy, et al., 65 W. Va. 573, 64 S. Enc. PI. and Pr. 765. E. lom. '•'■''Lemon v. TTansbarger, 6 Gratt. 150 Hogg, Eq. Pr., §53, pp. 92, 93. (Va.) 301; Burdett v. Gain, 8 W. ini Idem. Va. 282. i52 7rfem. '■>» Idem. i'''§51. '•■•■' Hogg, Eq. Pr., §58; p. 99, cit- 154 Farnsworth v. Notfsinger, 46 ing, McCarty v. Woodstock Iron Co., W. Va. 410, 33 S. E. Rep. 246; 92 Ala. 463, 8 So. 417, 12 L. R. A. 136. 75 Parties § 56 As to the defendants in cases of this character, it is sufficient to state that all the original parties to the contract should be before the court, as well also as all others in privity with them and whose rights will be affected by the decree sought by the bill/*" and if the infant is a defendant no decree can be ren- dered without the appointment of a guardian ad litem}^^ § 56. Cancellation in cases of drunkenness. In order that a party may maintain a bill to cancel a contract or agreement made when in a state of intoxication, (1) the drunkenness must have been brought about by the opposite party; (2) a fraudulent advantage must have been taken of it; or (3) it must have deprived the party of his reason and of an agreeing mind.^^^ In the latter instance, the intoxication must have been such as to have rendered the party no7i compos mentis for the time being.^"^ In every such case the party so affected, if then of sound mind, may maintain a suit as the plaintiff therein to cancel the contract or other instrument ; "'' or if the party become permanently non compos mentis as a result of constant intoxication, then his committee may sue for him.^^^ If he be not living, then the suit may be brought in the name of his personal representative or his heirs-at-law, upon whom- soever, as the case may be, the law casts the right of suit upon the death of a party, depending upon whether the matter relates to the title of personal or real estate."^ The parties to the con- tract or other instrument, made while a party seeking to avoid 160 18 End. PI. a.nd Pr. 799; 9 C. been brmight about by the other J. 1227, et seq. party." Miller v. Sterringpr, supra. loiHull V. Hull's Heira, 26 W. loa Hogg, Eq. Pr., § 59, p. 99; Lof- Va. 1. tus V. Maloney, 89 Va. 576, 604, 16 162 Miller v. Sterringer, 66 W. Va. S. E. 749. 169, 66 S. E. 228; Hunter v. Tol- i«* Hunter v. Tolbard, 47 W. Va. bard, 47 W. Va. 258, 34 S. E. 737. 258, 34 S. E. 737. "Equity will relieve one from a con- 16.1 Miller v. Sterringer, 66 W. tract made by him in drunkenness, Va.. 169, 66 S. E. 228. though his reason may not have 166 Jones v. McGruder, 87 Va. 360. been wholly overthrown, where 12 S. E. 792; Wigglesworth v. fraudulent advantage has been Steers, 1 H. & M. (Va.) 70, 3 Am. taken, or where the drunkenness has Dec. 602. § 57 Equity Procedure 76 it was intoxicated to a degree permitting its cancellation, should be made defendants to the suit, though they were not instru- mental in procuring the plaintiff's intoxication,"' as well as all others whose rights or interests may be affected by the decree. § 57. Cancellation in cases of fiduciary relationship. Any person to whom another sustains a fiduciary relation may bring suit to cancel any deed or contract made by such latter person for his own benefit; and such suit may be main- tained though the plaintiff has sustained no pecuniary loss or other disadvantage.^^' Thus a purchase made or deed procured by one while actually holding such relation may be set aside or cancelled at the option of the party to whom he stands in this relation. ^^' So, where a commissioner appointed by a decree in a suit in equity to sell land, becomes himself the purchaser, the purchase is voidable at the election of any party interested in the land sold.*'" And the law is the same where the purchase is made nominally by a third person, who is reported by the commissioner to the court as the purchaser, but who really pur- chased for the commissioner and conveyed the land to him after the purchase as reported had been confirmed by -the court.''* The usual rules as to necessary and proper parties defendant apply here, as already noticed under certain previous sections.*''^ 167 Wigglesworth v. Steers, 1 H. W Va. 88, 66 S. E. 04 ; as to part- & M. (Va.) 70, 3 Am. Dec. 602; ners, McKinley v. Lynch, 58 W. Va. Hogg, Eq. Pr., §59, p. 99. 44, 51 S. E. 4; Thome v. Brown, 168 Newcomb, et al. v. Brooks, et supra; as to tenants in common, al., 16 W. Va. 32, cited and ap- Bowers v. Dickinson, 30 W. Va. 709, proved in the following cases; as 6 S. E. 335; as to trustee and cestui to attorney and client or principal que trust, Feamster v. Feamste'r, 35 and agent. Lane v. Black, 21 W. Va. W. Va. 1, 13 S. E 53. 617; Thornc v. Brown, 63 W. Va. les Kewcomb, et al. v. Brooks, et 603, 60 S. E. 614; Keenan v Scott, al., 16 W. Va. 32. et al, 64 W. Va. 137, 61 S. E. 806; I'oWinans .. Winans, 22 W. Va as to corporation and director there- 678, of, Hope, et al. v. Valley City Salt i" Idem. Co., 25 W. Va. 789; as to guardian it2 §i 54-58. ad litem, Plant v. Humphries, 66 77 Parties § 59 § 58. In the matter of confusion of boundaries. A party can not maintain a suit for the mere purpose of set- tling the q\iestion of boundaries; ''^ but in order to bring a suit of this character, the plaintiff must be a party who can show some peculiar equity on his side, arising from the conduct, situ- ation or relation of the parties,"'' or that the settlement of the boundaries is an incident to the main relief which he properly seeks by his bill."^ The defendant must be the party in possession of the land, or some portion of it, as to which the disputed boundaries re- late,"^ and, of course, any other persons whose rights would be affected. § 59. In matters of contribution. Generally, the parties who may maintain suit to enforce con- tribiition are eo surety, partner, tenant in common, creditor, owner of a vessel, wrongdoer, joint obligor, devisee and lega- tee; "' but as the doctrine of contribution is founded on equity and natural justice, "' exacting equality in the discharge of a common burden or obligation, the eases here enumerated are not the only ones in which this doctrine may be asserted."' To the end that a co-surety may be the plaintifT in a bill to enforce contribution from another surety, he must have used due diligence to obtain reimbursement from his principal or the latter must be insolvent.^*" A partner who has paid more than ".3 Hogs. Eq Pr., S 62, p. 104; Npli. 46, 76 X. W. 412; McAdani v Freer v. Davis. ,52 W. Va. 1, 43 S. Honpy. 20 R. T. 351, 39 Atl. 180; E. 164; Beatty v. Edgell, 75 W. Va. McBride v. Pntter-Lovell Co., 160 252, 83 S. K. 903. Mass. 7, 47 N. E. 242, 61 Am. St. "■•See same citations. Rep. 265. But contribution will not 175 Idem. be enforced for the voluntary pay- I'eldem, § 62a, p. 105; Beatty v. ment of the debt of another. Briggs, Edgell, 75 W Va. 252, 83 S. E. et al. v. Barnett, et al., 108 Va. 404, 903. See § 50, note 132, supra. 61 S. E. 797. '"Hogg, Eq. Pr, §63, p. 107. i«" McCormack's Admr. v. O'Ban- I's Strother's Admr. v. Mitchell, non, 3 Miinf. (Va.) 484, 5 Am. Dec. et al., 80 Va. 149. 509; .Hawker v. Moore, 40 W. Va. "sBennison v. McConnell, 56 49, 20 S. E. 848. § 59 Equity Procedure 78 his share of the firm debts is entitled to contribution from his co-partners ; ^^^ but if he has taken exclusive possession of the assets of the firm upon its dissolution and undertakes to close up its business, he can not maintain a suit for contribution until he has made a settlement of the partnership accounts;"^ and a tenant in common may assert his right to contribution against his co-tenants when he has paid any debt or charge against the common property, which was necessarily done to preserve the property from loss or destruction ; "' so a creditor may do so when, in a joint endeavor with other creditors to assert rights common to all, liability has been incurred which he has dis- charged ; "* likewise, a joint wrongdoer, against whom with others judgment has been rendered which he has discharged, may be the plaintifif in a bill for contribution;'*^ and where several parties are jointly bound to discharge an obligation and one or more perform the obligation they may enforce contribu- tion against the others; "" so where a devisee or legatee has lifted a charge or lien upon the property devised or bequeathed to such legatee and others under the will, or in any case where he has discharged a burden common to all, he may as plaintiff, in a bill for that purpose, against such other devisees or legatees, compel contribution by them.^*' isi Fetter on Equity, 253; Kirch- when the tortious act is malum in ner v Smith, 61 W. Va. 434, 58 S. se, Biiskirk v. Sanders, 70 W. Va. E. 614; Sands v. Durham, 98 Va. 363, 73 S. E. 937. 394, 36 S. E. 472. I'MIogg, Eq. Pr., §70, p. 110; 182 Hogg, Eq. Pr., §65, p. 108; Bartlett v. Armstrong, 56 W. Va. Smith V. Zumbro, 41 W. Va. 623, 293, 49 S. E. 140; Gooch v. Gooch, 24 S. E. 653. 70 W. Va. 38, 73 S. E. 56. But 183 Hogg, Eq. Pr., §66, p. 108; "where parties are severally bound Flat Top Grocery Co. v. Bailey, 62 as principal.^ for specific portions of W. Va. 84, 57 S. E. 302. a debt, and not jointly, nor jointly 184 Hogg, Eq. Pr., §67, p. 108; and severally, and one of them pays Vandievcr v. Pollack, 107 Ala. 547, more than he is bound for, the pay- 19 So. 180, 54 Am. St. Rep. 118; mcnt is voluntary and furnishes no Penn v. Bahnaon, 89 Va. 253, 15 cause of action at law or in equity.'' S. E. 586. Briggs, et al. v Barnett, et al., 108 185 Hogg, Eq. Pr., §67, p. 109. Va. 404, 61 S. E. 795. f?o««ra, Walton, et al. v. Miller, 109 isr Hogg, Eq. Pr., §70, pp. 110, Va. 210, 63 S. E. 458. Also contra. 111. 79 Parties § 60 In a suit by a sure'ty to enforce contribution, the principal and all co-sureties should be parties defendant, unless insolvent or beyond the jurisdiction of the court,-'*' as well also as the personal representative of every deceased solvent co-surety ; ^*' and it is advisable to make all co-sureties, or, if dead, their personal representatives, parties defendant, whether solvent or not, because if insolvency is denied no decree can be rendered in the cause, until proof of insolvency is made.^"" Indeed, every one whose interests may be affected by the decree must be before the court. Thus "where a suit in equity is brought by one or more sureties against their co-sureties to compel con- tribution, and a tract of land is sought to be sold as the property of one of said co-sureties, which is claimed by the wife of said co-surety as having been purchased and paid for by her, al- though the title remains in her vendor, it is error to decree a sale of said tract of land so claimed by said wife without making said vendor a party to the suit. ""^ But in such eases, when the bill alleges the insolvency of a co-surety, who is dead, and such allegation is not denied, but admitted, the heirs-at-law of such dead co-surety are not necessary parties to the suit.^^^ § 60. In matters of corporations. The corporation is the proper party plaintiif in a suit to redress or prevent wrongs against it, committed or threatened, either by strangers or by its own officers or agents ; ^'^ so that a corporation, whether public or private, may commence and prosecute all suits to enforce its rights which accrue to it within 188 Holsberry v. Poling, 38 W. Va. ^S2 Mem. 186, 18 S. E. 485; Jones v. Blanton, i!)3 Clark on Corp. .380. See Ratli- 6 Ired. Eq. (N. C.) 115, 51 Am. bone v. Parkersburg Gas Company, Dec. 415. 31 W. Va. 708, 8 S. E. 570; De«'ny 189 Bruce v. Bickerton, 18 W. Va. v. Hart Coal Co., 63 W. Va. 650, 60 342. S. E. 789; Ward v. Hotel Randolph 190 Bruce v. Bickerton, 18 W. Va. Co., 65 W. Va. 721, 63 S. E. 613; 342. Smiley, et al. v. New River Co., 72 191 Holsberry v. Poling, 38 W. Va. W. Va. 221, 77 S. E. 976. 186, 18 S. E. 485. § 60 Equity Procedure 80 the scope of its design and the power or authority conferred upon it.^'* As a general rule, for an infringement or injury to corporate franchises and rights, the individual members can not sue;"^ but the suit must be brought in the true name of the corpora- tion. ^^^ But "if a case arises of injury to a corporation by some of its members, or by its officers, or by strangers, for which no adequate remedy remains except that of a suit by individual members in their private characters, asking in such character the protection of those rights to which, in their corporate char- acter they are entitled, a court will regard the claims of justice as superior to any difficulties arising out of technical rules re- specting the mode in which corporations are required to sue, and will entertain a suit by stockholders individually. " ^^^ Thus equity permits a stockholder in his own name on behalf of him- self and all other stockholders similarly situated, to annul or cancel an ultra vires act, or contract of the corporation, when the directors refuse to do so in the corporate name, and where the stockholders themselves refuse to act by deposing the direc- tors and electing new ones who will take the proper action in the name of the corporation.^'^ The rule seems to be well settled that when a stockholder may bring suit to protect corporate rights, he should sue on behalf of himself and all other stock- holders similarly situated."' 194 Angell & Ames, Corp. (Tenth tion to corporate rights, see Hogg, Ed.), §370. Eq- Pr., §76; Liggett v. Roanoke 195 Idem, § 312; Clark, Corp. 391; Water Co., 126 Va. 22, 101 S. E. 55. Park V. Oil Co., 26 W. Va. 486; 198 Clark on Corp., 393, 304 ; Rath- Mount V. Radford Trust Co., 93 Va. bone v. Gas Co., and other cases 427, 25 S. E. 244, 245 ; Moore v. cited in note 193, supra; Dunphy Lewisburg & R. E. Ry. Co., 80 W. v. Travelers' Newspaper Assn., 146 Va. 653, 93 S. E. 762, L. R. A. Mass. 495, 16 N. E. 426, 430, 431; 1918A, 1028. Also see cases cited Brewer v. Boston Theater, 104 Mass. in note 193, supra. 378; Allen v. Wilson, 28 Fed. 67,7; 196 Porter v. Nekervis, 4 Rand. Detroit v. Dean, 106 U S. 537 ; (Va.) 359; Culpepper Manf. So- Dimpfel v. Railway Co., 110 U. S. ciety V. Digges ,6 Rand. (Va.) 166, 209. 18 Am. Dec. 708. Also see cases 199 Angell & Ames on Corp., § 312, cited in note 193, supra. p. 330; Hersey v. Veazie, 24 Me. 9, 197 Clark on Corp. 392. As to 41 ^m. Dec. 364, note; Bethune v. when stockholders may sue in rela- 81 Parties § 60 A private person can not sue to set aside an act as ultra vires done by a public corporation vested with state property for public use; this must be done by the state or corporation it- self.2«» In a suit by a stockholder to annul or cancel an ultra vires act or contract done or made by his corporation, such corpora- tion is an indispensable party ; '"^ so, too, in a suit by creditors of an insolvent mercantile corporation against the incorporators to compel the payment of their debts out of funds of the cor- poration alleged to have been misappropriated by such incor- porators ; ^"^ likewise in a suit by a creditor to compel the pay- ment of unpaid stock subscriptions, which are treated as assets of an insolvent corporation ; ^"^ also in a suit by a stockholder to set aside a conveyance of the corporate property ; ^"^ and in a suit brought by not less than one-third in interest of its stock- holders, to wind up the affairs of the corporation and obtain a decree of dissolution and sell its real and personal property, and distribute the proceeds of such sale among those entitled there- to,^°^ as well, also, as the stockholders who are not made plain- tiffs.^"^ But "in an action against a corporation as trustee of a Wells, 94 Ga. 486, 21 S. E. 230; 56 W. Va. 141, 49 S. E. 21. Wayne Pike Co. v. Hammons, 129 201 Smith v. Cornelius, 41 W. Va. Ind. 368, 27 N. E 487, 490; Cook, 59, 23 S. E. 599, 30 L. R. A. 747; Stock and Stockholders, § 666 ; Mack Bethune v. Wells, 94 Ga. 486, 21 S. V. De Bardeleben Coal and Iron Co., E. 230. 90 Ala. 396, 8 So. 150, 9 L. R. A. 202 Pullman v. Ellis, 95 Ga. 445, 650 and notes; Byrne v. Schuyler 22 S. E. 568. Electric Mfg. Co., 65 Conn. 336, 31 203 King v. Sullivan, 93 Ga. 621, Atl. 833, 28 L. K. A. 304 and opin- 20 S. E. 76. ion of court. 204 Bruschke v. Der Nord Chicago 200 Smith V. Cornelius, 41 W. Va. Schuetzen Verein, 145 111. 433, 34 N. 59, 30 L. R. A. 747, 23 S. E. 599. E. 417. "Citizens and tax-payers, simply as 206 Hurst v. Coe, 30 W. Va. 158, such, stating no special harm to 3 S. E. 564; Cason v. Seldner, 77 them different from others, can not Va. 293; Martin v. South Salem enjoin the use of a lease of a part Sand Co., 94 Va. 28, 26 S. E. 591, of a city park, made by the city for 593. a term of years for the purpose of 206 Styles v. Laurel Fork O. & C. racing horses." Bryant v. Logan, Co., 45 W. Va. 374, 32 S. E. 227. § 60 Equity Procedure 82 deed of trust, to have such deed set aside as fraudulent, the cestui que trust need not be made a party defendant, where it appears that it is a foreign corporation without the jurisdiction of the court; that all its property and business had been assigned to defendant corporation, without, however, a formal surrender of the charter; and that the stockholders of the two corporations were mainly, if not altogether, the same persons. " ^"^ So, where a corporation transfers all its property, rights and franchises to a new company incorporated with the same stockholders and directors as the old, and the new corporation adopts the con- tracts and assumes the liabilities of the old, the merger of the old into the new corporation creates a novation of the debts of the old corporation, and in a suit to enforce payment of these debts, the old corporation is not a necessary party. ^"^ So, "while it would be more convenient to make all the stockholders who have not paid their stock subscriptions in full, parties, except such as are unknown, insolvent or beyond the jurisdiction of the court, where the object of the bill is to subject corporate assets, including unpaid stock subscriptions, to the payment of cor- porate debts, they are not indispensably necessary parties. It is not the duty of creditors to marshal the assets or to adjust the equities between the stockholders. In that the creditors have no interest. If the stockholders who are made parties desire the other stockholders brought before the court, they can, by proper pleadings, have it done. "^'" In suing a corporation, as already stated, the suit should be brought in its corporate name. Thus where a board of educa- 217 Silver Val. Min. Co. v. Bal- ="9 Opininn of Buchanan, J., in timore G. & S. M & S. Co., 99 N. C. Martin v. South Salem Land Co.. 445, 6 S. E. 735. 94 Va. 28, 20 S. E. 591, citing, 208 Friedcnwald Co. v. Asheville Ojrilvip v. Insurance Co., 22 How. Tobacco Works & Cigarette Co., 117 380; Hatch v. Dana, 101 U. S. 205; N. C. 544, 23 S. E. 490; Billmyer 1 Mor. Priv. Corp. §315; 2 Mor. Lumber Co. v. Merchants Coal Co., Priv. Corp. § 861 ; Cook, Stocks and 66 W. Va. 696, 707, 66 S. E. 1073, S. § 207, and note 1 ; Thomp. Corp , 26 L. R. A. (N.S.) 1101; Lowther §3493; Mather v. Mather, 64 W V. LowtlierKaufmann O. & C. Co., Va. 646, 63 S. E. 332. 75 W. Va. 171, 83 S. E. 49. 83 Parties § 61 tion sues or is sued, it should proceed or be proaeeded against in its corporate name, omitting the individual names of its mem- bers j^" but it is not necessary to show how it was incorporated, or to aver that it is a corporation duly constituted, or that it is authorized by law to sue or be sued in its cor,porate name.^" In a suit brought by a creditor to assert a debt against a defunct domestic corporation, and wind up its affairs, and ad- minister its property for the benefit of its creditors, the stock- holders are necessary parties.^'^ § 61. In the matter of creditors' bills. A single creditor of either a living or deceased debtor may file a creditors' bill in his own name; or several persons having distinct judgments against a common debtor may join as plain- tiffs in the same suit ; and one judgment creditor may file such bill to enforce his own judgment lien without formally making other judgment creditors parties, and a reference may be had and all creditors thus convened.^'^ But the more usual and better practice is for the plaintiff to sue on behalf of himself and all other creditors of the same class as himself.^^* "It is scarcely necessary to state that the bill may be filed or the suit brought by any person who has a right to resort to a court of equity to reach the property of another, to subject it to the payment of any debt or claim, where the ordinary legal remedy is insufficient Or unavailing. Thus an administrator may file such a bill to enforce a judgment obtained by him 210 Williams v. Board of Educa- -'SA bill setting up complain- tion, 45 W. Va. 199, 31 S. K. 9S5; ant's claim only, and not purporting Stewart v. Thornton, 75 Va. 215; to be a creditors' bill, may, never- Hart V. B. & O. R. Co., 6 W. Va. theless, be treated as such and cred- 336. itors may come "in by petition as 211 Hart V. B. & 0. R. Co., 6 W. plaintiff, and a decree of accounts Va. 336; Lively v. Southern B. & of debts may lie had which operites L. Assn., 46 W. Va. ISO, 1S2, 33 S. a suspension of all other suits of E. 93 creditors, who must prove their -1= Stiles V. Laurel Forlc Oil & debts under said decree. Ewing v. Coal Co., 47 W. Va. 838, 35 S. E. Ferguson. 33 Gratt. (Va, ) 548. .986. "* Hogg, Eq. Pr., § 451. § 61 Equity Procedure 84 against persons who are distributees of the estate; also a special receiver to enforce the lien of a judgment obtained by him ; and a purchaser of land under a void decree, whose money has been applied upon liens on the land valid against the owner of the land so sold;" ^'^ so a surety may sue in equity on part payment of the debt, when due, to compel the debtor to pay the debt out of his own property, in exoneration of that of the surety, and may have enforced for his relief any liens which the creditor has on the estate of his principal ; ^^^ and a suit may be brought by judgment creditors, upon the return of an execution unsatis- fied, to reach unpaid stock subscriptions, and to apply them to the discharge of their judgments.^''' It is provided by statute in West Virginia that when the personal estate of a decedent is insufficient for the payment of his debts, his executor or ad- ministrator may Commence and prosecute a suit in equity to subject his real estate to the payment thereof. And it is further provided by this statute that if such suit be not brought within six months after the qualification of the executor or adminis- trator, any creditor of the decedent, whether he has obtained a judgment at law or not for his claim, may institute such suit on behalf of himself and the other creditors of the decedent, in which the personal representative, widow, heirs-at-law, and devisees, if any, of the decedent shall be made defendants."^ Any creditor may bring such suit, where the personal represen- tative has failed to do so within the six months provided by statute, although he may be the only creditor of such decedent. ^^' "^ Idem, p. 600. But a suit by jurisdiction to entertain a. bill on a widow for assignment of dower behalf of a general creditor of a can not be converted into a, credi- deceased person to enforce a purely tor's suit. Conrad v. Crouch, 68 legal demand, unless it is shown W. Va. 378, 69 S.'E. 888. that the creditor has exhausted his sisNeal v. Buffington, 42 W. Va. legal remedy, or that such remedy, 327, 26 S. E. 172. for some sufficient cause, would be 217 Martin v. South Salem Land inadequate or unavailing." Craw- Co., 94 Va. 28, 26 S. E. 591. ford's Admr. v. Turner's Admr., 58 218 W. Va. Code, 1913, c. 86, §7. W. Va. 600, 52 S. E. 716. See also, Underwood v. Underwood, 2i9 Broderick v. Broderick, 28 W. 22 W. Va. 303. "Equity has no Va. 378. 85 • Parties § 61 It must not be thought that the rig:ht of a personal repre- sentative to bring suit to subject tlie real estate of his decedent to the payment of his debts, during the six months next suc- ceeding his qualification, is exclusive in all instances. Such a bill may be filed by a cri'ditor or creditors to discover assets and enforce a claim against the estate, real and personal, in the hands of the heirs or devisees within six months of the date of the appointment of the personal representative of the de- eedent.^^" Who are necessary or proper parties defendant to a creditors' bill depends largely upon the class of this character of bills, to which the particular suit may be referred. In the usual practice in courts of equity, creditors' bills may "be thus classified : "First. Those filed to enforce judgment and certain trust or mortgage liens against the lands of the debtor. "Second. Those filed against the estates of decedents for a distribution of the assets of the estate among the lien and gen- eral creditors thereof. "Third. Those filed to set aside fraudulent conveyances, and conveyances by insolvent debtors attempting to create prefer- ences among creditors." ^^^ If the suit is brought to enforce a judgment lien, it is the ■duty of the plaintiff to make parties thereto all of the lien creditors of the debtor known to him, and those disclosed by the judgment lien docket or the records of the courts of any of the counties in which any of the lands sought to be sold are situated,^^^ as well as the owner of the property ; ^^' and where 220 Poling V. Huffman, 39 W. Va. 222 Bilmeyer v. Sherman, 23 W. 320, 19 S. E. 421; Hanly v. Potts, Va. 6.-56; Pappenheiraer v. Roberta, CO w ^T. 0R1 97^ A? cj T? 91S 24 W. Va. 702; Crim v. Price, 46 52 W. Va. 263, 274, 43 S. E. 218. ^ y^ 3^4^ 33 g j, gSl; First But as to whether such a rule ap- jjat. Bank of Webster Springs v. plies in a pure creditors' suit to McGraw, 85 W. Va. 298, 101 S. E. subject realty, see dictum of Bran- ^^f- „,.„. , ^o w •" ^ . • , „ 1, -rn w 223 Williamson V. Jones, 43 W. non, J., m Gooch v. Gooch, 70 W. ^^ g^g^ 27 S. E. 411. Owners of Va. 38, 73 S. E. 56, 37 L. E. A. vested rights in reversion or in re- ^[N'.S.) 930. mainder are necessary parties in a 221 Hogg, Eq. Pr., § 450, p. 599. suit to sell the fee. Idem. But a remainderman is not a necessary § 62 Equity PROcfeouEE 86 there are liens created by trust deed, or by retention of a ven- dor's lien, the trustees and beneficiaries therein are indispen- sable parties to the suit ; ^^* or where there is any one else so interested in the subject-matter of the bill that there can not be a complete adjustment of the cause or a proper decree of sale in his absence, he must be a formal party to the suit.^^^ "In a creditors' bill against the administrator and heirs of a decedent to enforce the collection of a debt, secured to the plaintiff by the joint and several obligation of the decedent, and another obligor, such obligor is a necessary party to such bill, although he may be a non-resident." ^^^ When the suit is brought by an executor or administrator, the statute specifically provides that the vi^idow, heirs, devisees, if any, and all known creditors of the decedent shall be defendants to the suit.^^*^ The question as to who are necessary or proper parties in suits to enforce mortgage liens, and in creditors' bills of the second and third classes, is considered under subsequent sec- tions.^" § 62. In matters pertaining to deeds of trust. No one can maintain a bill in equity to enforce the lien created by a deed of trust, when there is nothing in the way party in a suit to sell a life estate. debtor should be made parties. Moore v. Bruce, et ah, 8.5 Va. 139, First Nat. Bank of Webster Springs 7 S. E. 105. A joint tenant or v. McGraw, 85 W. Va. 298, 101 S. tenant in common is not a neees- E. 474. sary party. Burke v. Morris, 121 Five judgment creditors had each Ala. 126, 25 So. 759; 12 Cyc. 36. brought a suit for the enforcement Assignees of the debtor and trustees of his lien, and decrees for renting holding the legal title are neees- had been made in each suit. Plain- sary parties. First Nat. Bank of tiff, who was a judgment creditor in Webster Springs v. JIcGraw, 85 W. one of these suits, and held another Va. 298, 101 S. E. 474. judgment, which was prior to all 224 Hogg, Eq. Pr., § 452, p. 601, the rest, brought another suit, set- and the cases there cited. Baker ting out these facts, and the neces- V. Oil Tract Co., 7 W. Va. 454; sity for a sale of the real estate, and Marshall v. Hall, 42 W. Va. 641, asking that an account be taken, 20 S. E. 600; Benson v. Snyder, and that all the suits be heard to- 42 W. Va. 22,3, 24 S. E. 880; Turk gether. Held, that the suit was V. Skiles, 38 W. Va. 404, 18 S. E. properly brought, and that it was 561 ; Bensimer v. Fell, 35 W. Va. no objection to the bill that the 15, 12 S. E. 1078, 29 Am. St. Rep. debtor was living. Preston v. Aston, 774. But see First Nat. Bank of 85 Va. 104, 7 S. E. 344. Webster Springs v. McGraw, 85 W. 226 White v. Kennedy, 23 W. Va. Va. 298, 101 S. E. 474. 221. 225 Hogg, Eq. Pr., pp. 602, 603. 226a W. Va. Code, 1913, c. 86, §7. Co-debtors of a joint judgment 227 §§ 64, 67, 73. 87 Pakties § 6? to prevent a free and fair sale by the trustee in the manner prescribed by law.^^^ But where the lien can not be enforced in the usual way by the trustee, as where the trustee is dead, or the trust does not name the beneficiaries intended to be secured, or where the trustee refuses to act, a beneficiary may bring his bill for relief.^^' But in such a case the suit should be in the name of the real, and not the nominal, beneficiary.^'" And if the trustee offers to sell the property when it would be inequit- able to do so, the grantor, or, if he be dead, his heirs-at-law, or his personal representative may enjoin the sale,^'^ or set aside the same if the sale is permitted to take place.^'^ And a cestui que trust may, as the plaintiff in the bill, enjoin the trustee in another deed of trust from cutting and taking possession of a growing crop, and of disposing of the same, and may ask in such bill for the appointment of a receiver and other appropriate relief;^'' and the trustee himself may be the plaintiff in a bill brought to remove any and all impediments to a fair and im- partial sale under the trust deed.^'* If a trustee should misapply the proceeds of a trust sale, the cestui que trust may bring suit to compel an accounting there- for.235 228 Hogg, Eq. Pr., §486, p. 646; =32 Gibson's Heirs v. Jones, 5 George v. Zinn, 57 W. Va. 15, 49 Leigh (Va ) 370; Hoffman v. S. E. 904, 110 Am. St. Eep. 721; Shields, 8 W. Va. 32; Spencer & Eexroad v. Raines, 63 W. Va. 511, Miller v. Lee, 19 W. Va. 179; Burke 60 S. E. 495. & Keatley v. Adair, 23 W. Va. 139; 229Hudgins v. Lanier Bro. & Co., Lallance v. Fisher, 29 W. Va. 512, 23 Gratt. (Va.) 494; Reynolds v 2 S. E. 775; Corrothers v. Harris, Bank, 6 Gratt. (Va.) 174; Wash- 23 W. Va. 177. See Hogg, Eq. Pr., ington Nat. B. & L. Assn. v. Buser, § 482, pp. 643, 644; Mankin v. 61 W. Va. 590, 57 S. E. 40. Dickinson, 76 W. Va. 128, 85 S. E. 230Castleman v. Berry, 86 Va. 74, Ann. Cas. 1917D, 120. 604, 10 S. E. 884. 233 Kerr v. Hill, 27 W. Va. 576. 231 Stewart v. Jackson, S W. Va. 234 Hogg, Eq. Pr., §478, p. 637; 29; Curry v. Hill & Curry, Trus- Hogan v. Duke, 20 Gratt. (Va.) tees, 18 W. Va. 370; Richardson v. 244. For a full discussion of in- Donehoo, 16 W. Va. 685; Dey v. stances wherein a trustee may main- Martin, 78 Va. 1 ; Pitzer v. Logan, tain such a suit, see George v. Zinn, 85 Va. 374, 7 S. E. 385; Hart v. 57 W. Va. 15, 49 S. E. 904. Larkin, 66 W. Va. 227, 66 S. E. 235 Vance v. Kirk, 29 W. Va. 344, 331, 135 Am. St. Rep. 1027. 1 S. E. 717; Thomas v. Linn, 4Q § 63 Equity Procedure 88 To a suit brought by a grantor to enjoin the sale of property under a trust deed, the cestui que trust and trustee are neces- sary parties defendant,^'' and if brought by the administrator of a deceased grantor, the heirs-at-law of such grantor are neces- sary parties.^'^ And to a suit brought to set aside a sale made under a trust deed, by a party claiming an interest in the prop- erty sold, after the death of the grantor, his heirs-a±-law and personal representative are necessary parties,^^' and if the cestui que trust is dead his personal representative is a neces- sary party.^^' In a suit by a trustee to remove impediments to a sale of the trust property, all persons having a subsisting in- terest in the subject-matter of the suit should be made parties, provided their rights may be affected by the deeree.^^" And where a trustee sues to remove a cloud upon the title to trust property and fix the amount of the trust debt, the administrator of the deceased trust creditor is a necessary party.^^^ § 63. In the matter of dower (a,ssigimient of). Usually the widow is the plaintiff in a suit for the assign- ment of dower,^''^ but if she has sold or assigned her right of dower before it has been set apart to her, her assignee may maintain the suit,^^' or an heir-at-law or other owner of real estate may maintain a suit to quiet his title or ascertain and assign dower.^^* So a judgment lien creditor of the widow may W. Va. 122, 20 S. E. 878; Newman 2*0 Rexroad v. Raines, 63 W. Va. V. Newman, 60 \V. Va. 371, 55 S. 511, 60 S. E. 495. E. 377, 7 L. R. A. (N.S.) 370. 241 Bryan v. McCann, 55 W. Va. 236 reducible from the general 372, 47 S. E. 143. principles governing in the matter 2*2 Hart v. Birch, 130 111. 426, 6 of parties to suits in equity. L. R. A. 371, 22 N", E. 821. 237 Stewart v. Jackson, 8 W. Va. 243 Morgan v. Blatchley, 33 W. 29. Va. 155, 10 S. E. 282. 238 Spencer & Miller V. Lee, 19 W. 2447 Eno. PI. and Pr. 177, 178; Va. 179. 14 Cyc. 984; 7 Stand. Pro. 868-870. 2 39 Idem. 89 Parties § 64 bring suit to have dower assigned and the land subjected to the payment of his debt.^^^ To a suit for the assignment of dower the owners of the land out of which the dower is to be assigned are necessary par- ties;^''* but where there have been several conveyances of the land in the lifetime of the husband, the only necessary party to the suit is the party who owns the land at the time suit is brought to assign the dower ;^*' nor is the heir-at-law a neces- sary party where the land was conveyed in the lifetime of the husband,^*^ if it appears from the bill that such lands are the only lands in which the widow is entitled to dower,^" otherwise the heirs-at-law are necessary parties,^^" nor is the administrator of the deceased husband a necessary party.^"^ But the holder of the legal title is a necessary party,^^^ as well also as the tenant who entered into possession under a lease from some party other than the widow.^'' § 64. In matters pertaining to the estates of decedents. No attempt is here made to give all the instances of the neces- sary or proper parties, either plaintiff or defendant, in suits which relate to the estates of decedents, but only the general principles applying in such matters. It is a well-established rule that as to equitable rights which accrued during the lifetime of a decedent or afterwards, form- ing part of the assets of the estate, the executor or administrator 2*BMcMahon v. Gray, 150 Mass. =•(" Blair v. Thompson, 11 Gratt. 289, 22 N. E. 923, 15 Am. St Eep. (Va.) 441. 202, 5 L. R. A. 748; Tompkins v. 2*8 Boyden v Lancaster, 2 Patt. Fonda, 4 Paige Cli. (N. Y.) 448, 3 and H. (Va.) 198. L. Ed. 510 and note. But a widow, =49 Parton \. Allison, 111 N. C. for purposes of having dower as- 429, 16 S. E. 415. signed, can not bring a suit on be- ^''Oldem; Bragg v. Tinkling Land, half of creditors to sell the land etc., Co., 115 Va. 1, 78 S. E. 541. and subject the proceeds to her 2=1 7 Enc. PI. and Pr. 178, note; dower claim and the payment of 14 Cyc. 985. debts. Conrad v. Crouch, 68 W. Va. 252 idem. 378, 69 S. E. 888. 2537 Enc. PI. and Pr. 179; 14 246 Morgan v. Blatchley, 33 W. Cyc. 985. Va. 155, 10 S. E. 282. § 64 Equity Procedure 90 succeeds to them, and may enforce them by the same equitable remedies as the deceased might have invoked.^^* Thus, in a suit to enforce a vendor 's^^^ or mortgage lien,^^' the personal representative and not the heirs-at-law should be the plaintiff.^'' A personal representative has all the rights of suit in wind- ing up a partnership, that the deceased co-partner would have had, "to call for an account and settlement, or to restrain the use of a trade-mark or firm name,"^^* or in a suit to enforce the redemption of a mortgage.^^' The personal representative is the proper party plaiutiff to sell the real estate of his decedent for the payment of his debts, when the personal property is insufScient for that purpose, if the suit is brought within six months after the qualification of such personal representative,^^" and he may bring suit after the expiration of six months, provided no creditor has in the mean- time brought such suit,^^' and it is settled that a creditor has such right. ^'^ But the right of the personal representative to bring suit to subject the real estate of his decedent to the pay- ment of his debts, within the six months next after the personal representative qualifies as such, is not exclusive, as such suit may be brought by a creditor or creditors, to discover assets and enforce payment of a debt or claim against the real estate of a decedent in the hands of the heirs or devisees within six months after the date of the appointment of the personal representa- tive.^^' In the absence of a statute authorizing it, the personal representative can not bring suit to sell his decedent's estate to 26*Croswen'3 Exrs. and Admrs., 200 w. Va. Code, 1913, c. 86, §7; 459, 460. Underwood v. Underwood, 22 W. Va. 255 7deTO. 303; Broderick v. Broderiek, 28 W, 258Roath V. Smith, 5 Conn. 133; Va 385. See §61, supra. Citizens' Nat. Bank v. Dayton, 116 201 Reinhardt v. Eeinhardt, 21 W. 111. 257, 4 N. E. 492. Va. 76. 257 Idem. -"- Broderick v. Broderick, 28 W 268 Croawell on Exrs and Admrs , Va. 385. 460. 203 Poling V. IloflFman, 39 W. Va 259Taft V. Stoddard, 142 Mass. 320, 19 S. E. 421. But see §61 545, 8 N. E. 586. note 220, supra, and citations. 91 Parties § 64 pay his debts.^""* And a personal representative may sue his co-representative in equity for a debt due the decedent's es- tate.2« In "West Virginia and Virginia a foreign personal representa- tive as such can not maintain a suit as the plaintiff therein upon letters of administration issued in the foreign state or eoun- tiy_266 jf Y\e desires to sue in a sister state or foreign country he must be appointed and qualify there in the manner provided by the laws of such state or country.^^' It may be well to state that when suit is to be brought on a cause of action arising in the lifetime of the decedent, it must always be in the name of the personal representative as such ; ^^' but if the cause of action arose after the death of the decedent, the personal representative may sue in his own name or in his representative capacity.^^' Thus a personal representative, hav- ing recovered a judgment in his representative capacity in the ^ate of his appointment, may, in another state, maintain a suit in his own name on the judgment.*'" "In general, it may be stated that whenever the personal assets of the deceased in the hands of his executors or adminis- trators, or belonging to them, may be affected by the decree, they should be made parties defendant. ' ' ^'^ Thus, the personal representative must be a party to the suit before the payment of any debts can be decreed against a decedent's estate,^'* or money ordered or decreed to be paid to such estate ; ^'^ and where an executor has died after partially administering the 264 Arnold v. Casner, 22 W. Va. 269 Lawson v. Lawson, 16 Gratt. 444. (Va.) 230, 80 Am. Dec. 702; Elliot 265Huflf V. Thrash, 75 Va. 546. '''■ Blue, 74 W. Va. 209, 81 S. E. 266Crumlish v. Shenandoah Val. "^^l^ „ „ .„, , ^ _ R. Co., 40 W. Va. 627, 22 S. E. 90; ""8 Enc. PI. and Pr. 710; 8 Fugate V. Moore, 86 Va. 1045, 11 Stand, Pro. 748. 5. E. 1063, 19 Am. St. Rep. 926; 2" Story, Eq. PI., §170. Wirgman, ct al. v. Provident Life 272 Smith v. Turley 32 W Va 6. Trust Co., et al., 79 W. Va. 562, 14, 9 s. E. 46; Catron v. Bostic,' 566, 92 S. E. 415. 123 Va. 355, 96 S. E. 845. But see 267 8 Enc PI. and Pr. 700-703; Johnston v. Pearson, 121 Va. 453, 8 Stand. Pro. 748. 93 S. E. 640. 268 Elliot V. Blue, 74 W. Va. 209, "3 Flint v. Bland, 81 Va. 588. 81 S. E. 982. [5] § 64 Equity Procedure 9S estate of his deeedejit, and a suit is brought to recover a claim against the estate simply, no defendant is necessary, except the personal representative, which would be the administrator de tonis non with the will annexed.^''' So there must be an ad- ministrator of an estate of which distribution is sought, and he must be made a party to the suit ; and it is not sufficient to file the bill against the personal representative of the deceased ad- ministrator, but an administrator de bonis nan must be ap- pointed and made a party to the cause. ^^^ In a suit to subject lands of a decedent to the payment of his debts, the personal representative is a necessary party ;^^' and also the widow and heirs-at-law and devisees, if any, and all the known creditors of the decedent; ^'^ but the debtors of an estate should not be made defendants in a creditors' suit brought to settle the estate of the decedent and for the payment of his debts ; "* nor can a foreign personal representative be made a defendant in a suit brought in West Virginia. ^'' It may be laid down as a general principle, to which perhaps there is no exception, that to every suit by which it is sought to affect the estate, rights or interests of any decedent, his personal 274 McGlauglilin v. McGlaughlin's 278 Wilson v. Wilson, 03 Va. .346, Legatees, 43 VV. Va. 226, 27 S. E. 25 S. E. 596. 378; McConaugliey & Co. v. Ben- "It is not proper in a creditors' nett's Exrs., 50 W. Va. 172, 40 S. suit to settle an estate, to unite as ■^- 540. defendants the debtors of that es- 275 Blackwell v. Blackwell, 33 Ala. tate. As a general rule, the debtors 57, 70 Am. Dec. 556. of an estate must be sued alone by 276 Somerville v. Somerville 26 ^^^ personal representative of an es, W. Va. 484; Catron v. Bostic,' 123 tate. The creditors can only sue Va. 355, 96 S. E. 845. But not the personal representative for set- when a lien creditor sues. Johnston tlement, and, if land is to be sold, V. Pearson, 121 Va. 453, 93 S. E. "'"t^ with him those interested in 640. the land, unless some independent 277 W. Va. Code, 1913, o. 86, §7; ^"'^"^ °^ ^J'^^*? ^''f" ^^ ^^^^ }° Hull V. Hamilton's Heirs, 8 W. Va. f PPf^r as to the other parties m- 43; Woodyard, Receiver, V. Polsley, troduced; as for example, where 14 W. Va. 211; Underwood v. Un- f^""^ '^ f'? allegation of the trans- derwood, 22 W. Va. 303; Kilbreth fer or alienation to them of some V. Roots, 33 W. Va 600, 11 S. E. ?"* °* *\\ <^«^*°^ \. P''°P^^*L '" 21. But see Catron v. Bostic, 123 ^^^""^ °^ *'!? plaintiffs rights. Va. 355, 96 S. E. 845, contra as to ^^^^°° ^- Wilson, supra. creditors. 279 Oney v. Ferguson, 41 W. Va. 568, 23 S. E. 710. 93 Parties § 65 representative must be a party.^'" But in a suit to recover a claim against an estate, simply, no defendant is necessary or proper except the personal representative.^*^ § 65. In matters relating to Muciarles. Under this section are embraced committees and receivers, the other fiduciary relationships being considered under distinct headings.^^^ The committee of an insane person may bring suit in relation to the estate of such insane person and may be sued in relation thereto.^^' If relief is sought in chancery against a committee and the sureties on his official bond, the latter must be made parties to the suit.^*^ A suit concerning the person or estate of an insane person should be in the name of the committee, ^^^ not only by virtue of statute, but independently of it ; ^^° and when the lunatic is him- self a party defendant and the committee is also a party, the appointment of a guardian ad litem is unnecessary, unless there be a conflict of interest between the committee and the lunatic.^" But where the insane person alone is sued, and not his com- mittee, it is error not to appoint a guardian ad litem for him.^** 280 Donahue v. Fackler, 8 W. Va. 82 S. K 698; Johnson v. Chapman, 249. 43 W. Va. 639, 28 S. E. 744. "An 281 Jones V. Reid, 12 W. Va. 350; insane person may sue by next McGlaughlin v. McGlaughlin's Lega- friend when the suit is brought un- tees, 43 W. Va. 226, 27 S. E. 378. der the general jurisdiction of the But see Turk v. Hevcner, et al., 49 court, for example, a suit to set W. Va. 204, 206, 38 S. E. 476. aside a deed for fraud," but not 282 Vide, §§ 64, 68, 82. where the statute prescribes a dif- 283 Hogg, Eq. Pr., §123, p. 205; fereiit mode of procedure. Wheeler W. Va. Code, 1916, c. 58, §22. The v. Thomas, 116 Va. 259, 81 S. E. residence of the committee, not the 51. But the bill must aver that the residence of the lunatic, determines next friend appears as such by ap- the jurisdiction of the court. Shelt- pointment or leave of court. Lake man v. Taylor, 116 Va. 762, 82 S. v. Hope, 116 Va. 687, 82 S. E. 738. E. 698. 286Hinton v. Blana, 81 Va. 588. 284Hedrick v. Hepkins, 8 W. Va. ''S'' Idem. 167. 288Eakin v. Hawkins, 52 W. Vst 285Hinton v. Bland, 81 Va. 588; 124, 43 S. E. 211. Sheltman v. Taylor, 116 Va. 762, § 65 Equity' Procedure 94 In a suit against the committee of a lunatic to compel the payment of a debt due from the lunatic, it is not necessary to make the lunatic a party to such suit.^*' But in a suit involving the sale of his real estate he is a necessary party.^'" On a bill filed by his committee to set aside or rescind an act done under mental imbecility, the lunatic is not a necessary party, and though it is usual in practice to join them, it is but matter of form.^'^ It is well settled that, in the absence of statute so providing, a receiver can neither sue nor be sued without the consent of the court so appointing him,^^^ except that by statute in Virginia he may be sued in certain cases therein specified without leave of court ;^'' and where his right to sue is conditional, it must ap- pear that the condition has been performed.^^* Thus a receiver appointed by a court to collect money, after giving certain se- curity, can not sue until he has given such security.^^^ And a receiver, by the strict terms of the law, has no right to bring suit in a court outside the territorial limits of the jurisdiction conferring his appointment.^'^ "Biit the courts of a foreign jurisdiction may permit him, under certain circumstances, to bring suit in regard to the property of the receivership ; and this now seems to be the tendency of the modern decisions, so that the Supreme Court of Appeals of West Virginia holds that a receiver, trustee or assignee of a dissolved foreign corporation, appointed in the state of its domicile, may institute in the courts 289 Brasher v. Vancourtlandt, 2 v. Shul], 36 W. Va. 563, 565, 15 S. Johns. Ch. (N. Y.) 242, 1 Law. Ed. E. 140. 362, note. 292 Hogg, Eq. Pr., §§142, 143; 290 Idem; W. Va. Code, 1913, c. Melendy v. Barbour, 78 Va. 544; 83, § 2. However, he is not a neces- Davis v Snead, 33 Gratt. (Va.) sary party in a suit to subject his 705; Blair v. Core, 20 W. Va. at p. land to his debts, when he has a 268. committee with absolute power over 203 Va. Code, 1904, § 3415a. him and his estate. Howard v. 294 Reynolds v. Pettyjohn, 79 Va. Landsburg, 108 Va. 161, 60 S. E. 327; Davis v. Snead, 33 Gratt. (Va.) 769. 705. 291 Ortley v. Messere, 7 Johns. Ch. 295 Idem. (N. Y.) 139, 2 Law. Ed. 247; Hiett 296 Hogg, Eq. Pr., §144, p. 229. 95 Parties § 65 of this state suits in his name or the corporate name for debts or claims due such corporation."^'' It is said that a receiver has no such interest, either legal or equitable, in the property in his custody, as entitles him to bring an action in his own name concerning it, whether at law or in equity, but that the suit must be brought in the name of the party in whom the right of action is vested.^'* But "as to how the suit should be brought, whether in the name of the party of whose property the receiver has taken charge, or whether in the name of the receiver, there is considerable diversity of opinion. It seems clear, however, that where the action relates to the receiver's possession of the property and is based thereon he may sue in his own name, as in actions of trover and conversion, detinue and unlawful entry and detainer. So, too, where a re- ceiver has obtained judgment in his own name, he may bring suit to enforce its collection in like manner. And an examina- tion of the authorities will show that where a statute authorizes it, or where the court transfers or directs the transfer of prop- erty to the receiver and empowers him to sue in his own name with reference thereto, the suit may be brought in the name of the receiver. But in the absence of statute or authority specially derived from the court appointing him, the receiver can not maintain a suit in his own name. The reason given for this is that the legal title, to choses in action, or other property which he is authorized to reduce to possession, is ordinarily not trans- ferred to the receiver, but remains in the owner, in whose name 297 Idem, citing, Swing v. Bentley tors of the members of the firm, un- & Gerwig Furniture Co., 45 W. Va. less he first show that such firm is 283, 31 S. E. 925. insolvent, and that such funds are A foreign receiver of a dissolved necessary to satisfy the demands foreign partnership will not be per- against the same, independent of mitted to remove the funds of such any claim thereto Of the debtor part- partnership out of this state, to the ner. Grogan v. Egbert, 44 W. Va. detriment of the resident creditors 75, 28 S. E. 714. thereof, nor, as against the bona ^as 17 Enc. PI. and Pr. 807, citing fide claims of the separate credi- numerous cases. § 67 Equity Procedure 96 the suit may be brought. This seems to be the settled rule as recognized by the text writers."^'' In this connection it may be well to state that a special com- missioner, appointed to sell real estate, being a mere creature of the court, can not sue to collect the notes or bonds taken for purchase money, owing on the sale of the land, without authority from the court appointing him so to do.'"" § 66. In matters of fraud. Courts of law and equity have concurrent jurisdiction in cases of fraud, ^"^ and the court which first acquires jurisdiction of the case will determine and finally settle it.'"^ As to the parties plaintiff in suits involving the matter of fraud, they must be those who have been injured thereby and not strangers to the transaction in which the fraud arose,"" nor parties who participated in the fraud.'"* "The proper party defendant in an action of fraud, is, of course, the party practicing it. ' ' '"^ § 67. In the matter of fraudulent conveyances. Suits to set aside deeds and other instruments or contracts, as shown by the decisions, are usually instituted by creditors of a grantor or other person who has made the deed, instrument or contract with the intent to delay, hinder or defraud such creditors with respect to the collection of their debts or claims ; '"^ and the creditor need not reduce his debt or claim to 299 Hogg, Eq. Pr., § 142, pp. 229, 304 Enc. PI. and Pr. 681; Stout 230; High, Receivers (Fourth Ed.), v. Philippi M. & M. Co., 41 W. Va. sRonooio 330, 23 S. E. .571, 56 Am. St. Rep. ^^^m-^l^. ^^3. y^^ ^ ^ Smith, 50 W. Va. 300 Blair v. Core, 20 W. Va. 265. 349 40 g. E. 402. 301 Hogg, Eq. Pr., § 167. 305 9 Enc. PI. and Pr. 682. As- 302 Haden v. Garden, 7 Leigh signees of the defendant are neces- (Va.) 157; Prewett v. Citizens' Nat. sary parties. Bristow v. Tyler, 82 Bank of Parkersburg, 66 W. Va. W. Va. 629, 96 S. E. 1052. no. ,.P c T^ no-, i^r » o^ T, 306 Herzog V. Weiler, 24 W. Va. 184, 66 S. E. 231, 135 Am, St, Rep. igg. Pappenhcimer v. Roberts, Id. 1019. 702; Core v. Cunningham, 27 W. 303 9 Enc. PI. and Pr. 681; 10 Va. 206; Singer Mfg. Co. v. Ben- Stand. Pro. 46, et seq.; Henking v. "<^"' ^8 ^ ya. 16; Simon v. EUl- A A OA w 17 Tnn ir, ^ -n, son, 90 Va. 157, 17 S. E. 836; Blane Anderson, 34 W. Va. 709, 12 S. E. ' 869. 97 Parties 67 judgment in order to maintain a suit to set aside a fraudulent conveyance,'"' but a judgment or a decree is an indispensable prerequisite in the absence of a statute otherwise providing.'"* The law embraces all creditors, who, but for the fraudulent act or conveyance, would have had the right to subject the property included therein to the payment of their debts,'"^ and the debt upon which the suit is based must be due and pay- able.'" A personal representative of a creditor may bring suit to set aside a fraudulent conveyance,'*' but no such representative nor the heirs of a fraudulent grantor.'*^ Nor can the grantor or his assignee of the purchase money secured therein maintain a suit as the plaintiff to set aside a deed as made with the intent to hinder, delay, and defraud the creditors of the grantee or others.'" Any prior or existing creditor may bring a suit to set aside a mere voluntary conveyance or transfer of the debtor's prop- erty,'** as such conveyance is fraudulent and void as to such creditor of the debtor, without regard to the question of an V. Paymaster Mining Co., 95 Cal. 524, 30 Pac. 765, 29 Am. St. Rep. 149; Batchelder v. White, 80 Va. 103. Independent creditors may join as plaintiffs. Anderson v. Mossy Creel<, etc., Co., 100 Va. 420, 41 S. E. 854. The assignee ot a debt may attack a conveyance fraudulent as to the debt. Billings- ley V. Clelland, 41 W. Va. 234, 23 S. E. 812; National Valley Bank v. Hancock, 100 Va. 101, 40 S. E. Gil,' 57 L. B. A. 728, 93 Am. St. Rep. 933. The trustee in bankruptcy, not the creditors, of an insolvent grantor should sue to cancel a fraudulent conveyance. The Ruhl- Koblegard Co. v. Gillespie, 61 W. Va. 584, 56 S. E. 898, 10 L. R. A. (N.S.) 305. 307 Hogg, Eq. Pr., §183, p. 2S3; W. Va. Code, 1913, c. 133, S2: Kinnison v. Scott, 82 W. Va. 287, 95 S. E. 952. 308 Hogg, Eq. Pr., § 183, p. 283. 3M Idem, p. 284; W. Va. Code, 1913, c. 74, §9. iioidem; Frye v. Miley, 54 W. Va. 324, 46 S. E. 135; Wildaain v. Long, 74 W. Va. 583, 82 S. E. 205. But in Virginia it is not necessary that the debt be due. Va. Code, 1904, 5 2460. 311 Ellesworth v. McCoy, 95 Ga. 44, 22 S. E. 39. 312 Hogg, Eq. Pr., § 183, p. 284. 313 Billingsley v. Menear, 44 W. Va.'OSl, 30 S. E. 61. 314 Sides V. Schaiflf Bros., 93 Ala. 106, 9 So. 228. The priority is determined by the date of the debt. Peale v. Grossman, et al., 70 W. Va. 1, 73 S. E. 46. § 67 Equity Pkocedure 98 intent to defraud on the part of the debtor; but not a subsequent creditor in the absence of an actual fraudulent intent on the part of the debtor.''^ While the right to set aside conveyances in cases of the sort under consideration is usually invoked by the creditor in the usual sense of the term, yet the right may be exercised by others who may be injuriously a<¥ected by the transfer or con- veyance.^*' Thus a deserted wife may maintain a suit to set aside a deed of her husband made for the purpose of defraud- ing her of her right to alimony. ^^^ The necessary parties defendant in a suit to set aside a fraud- ulent conveyance are the grantor and his alienee,'** and this, too, though such alienee may have conveyed to other persons who are parties to the suit, if the latter conveyance was for a valuable consideration with covenants of general warranty ; '*' and inasmuch as a grantee of property conveyed by a debtor to defraud creditors is liable for the value of the property con- veyed to him if he has actively participated in the fraud, so if he subsequently disposes of the property so as to place it beyond the reach of the creditor, he ought to be made a party defendant and be required to account for its value, without reference to the manner or character of his disposal of it ; ^^^ and if the suit be to set aside a deed given to secure creditors, the beneficiaries named therein are necessary parties,^-* and likewise the trus- tee, '^^ and if the grantor in a fraudulent conveyance be dead his personal representative is a necessary party. '^' 3i^0reer v O'Brien, 36 W. Va. 3is Pappenheimer v. Roberta, 24 277, 1.5 S. E. 74:' McCaski'v v. Totta, W. Va. 702: Jeffries v. Jeffries, 123 65 W. Va. 641, 64 S. E. OOS. But Va. 147, 06 S. E. 197: Wilson Sp^ar, 68 Vt. 14.5, 34 Atl. 420: a voluntary conveyance made with Dgberty v. Holiday, 137 Tnd. 282, intent to defraud exiating creditora 32 N. E. 315. is fraudulent as to subsequent cred- 319 Pappenheimer v. Boberta, 24 itors. Clraham Oroccrv Co. v. W. Va. 702. Chase, 75 W. Vn. 775, 84 S. K. 785. 320 Doberty v. Holiday, 137 Ind. 310 Murrnv v. Jiurrav, 115 Cal. 282, 32 N. E. 315. „„ o, T r, , a^n rn A oi. ^" Simon V. Ellison, 00 Va. 1.57, 266, 37 L. R. .^. 626, 56 Am. St. 17 g e 836 Rep. 07, 47 Pac. 37. 322 Le Due v. Brandt, 110 X. C. 317 Murray v. Murray, supra; 289, 14 S. E. 778. fidff v Goff, CO W. Va. 9, 53 S. E. 323 Bogga v. McCoy, 15 W. Va. 769. 344: First Nat. Bank v. Shuler, 153 99 Pakties §68 A person through whom fraudulent conveyances pass, and who acts only as a medium to transfer title to another, is not a necessary party defendant;'^* nor are the other joint judg- ment debtors in a suit against one of them to set aside a con- veyance made by him ; '^^ nor are the creditors of the fraudulent grantor or debtor necessary parties.'^* § 68. In matters relating to guardian and ward. A guardian cannot maintain a bill in equity to obtain posses- sion of his ward's property, but such a bill must be filed in the name of the ward by his next friend, who may be the guardian himself.'^' Nor can a second guardian file a bill in his own name against a former guardian, for an account of his transactions in relation to the ward's estate, but any bill for an accounting by the guardian must be by the ward; and, if an infant, in his own name by his next friend. ^^* But there are certain cases in which a guardian may sue in his own N. Y. 163, 47 N. E. 262, 60 Am. St Rep. 601; Walbrecht v. Hol- brook, 66 W. Va. 296, 66 S. E. 335. 324 Bomar v. Means, 37 S. C. 520, 16 S. E. 537, 34 Am. St. Rep. 772; Wilson V. Spear, 68 Vt. 145, 34 Atl. 429; Herzog v. Weiler, 24 W. Va. J99; Sides v. Schaiff Bros., 93 Ala. 106, 9 So. 228; Kirby v. Steele, 65 W. Va. 719, 64 S. E. 919. 325 Hodge V. Gray, 110 Mich. 654, 68 N. W. 979; Quinn v. People, 146 111. 275, 34 N. E. 148; Graham Grocery Co. v. Chase, 75 W. Va. 775, 84 S. E. 785. 326 Core V. Cunningham, 27 W. Va. 206; Powers-Taylor Drug Co. v. Faulconer, 52 W. Va. 581, 600, 44 S. E. 204; Colston v. Miller, 55 W. Va. 490, 47 S. E. 268. But other judgment creditors may be im- pleaded. Davis V. Halstead, 70 W. Va. 572, 74 S. E. 725. And it would seem expedient, if not essential, to convene prior lien creditors in order that there may be no impediment to the sale. Dent v. Pickens, 50 W. Va. 382, 40 S. E. 572. 327 Sillings v. Bumgardner, 9 Gratt. (Va.) 273; Lemon v. Hana- barger, 6 Id. 301; Bradley v. Ami- don, 10 Paige (N. Y.) 235; Burdette V. Cain, 8 W. Va. 282; Lawson v. Kirchner, 50 W. Va. 344, 40 S. E. 344; Straight v. Ice, 56 W. Va. 60, 62, 48 S. E. 837; McMullen v. Blecker, 64 W. Va. 88, 60 S. E. 1093, 134 Am. St. Rep. 894. But see dictum in Clark v. Clark, 70 W. Va. 428, 430, 74 S. E. 234. As to the power of a guardian to bring a partition suit to partition his ward's estate, see § 77, infra. 328 Lemon v. Hansbarger, 6 Gratt. (Va.) 301. But see Clark v. Clark, 70 W. Va. 428, 430, 78 S. E. 234. § 69 Equity Procedure 100 name, as where he is entitled to the possession of the ward's property, or he seeks to recover for an injury to the posses- sion,'^^ or when t!ie suit is on a contract made with the guardian in the course of his guardianship,''" or on a judgment obtained in the name of the guardian."' And a guardian may file a bill or petition in his own name for the sale of his ward's real estate "^ but no such bill can be maintained by the ward, though the bill be in the ward's name by his next friend.'" An infant ward by his next friend may maintain a bill against his guar- dian for an accounting and for his removal."'' On a debt contracted during guardianship, the guardian and not the ward is the proper party to be sued."^ In a proper ease, a suit may be brought in equity by an infant ward against the guardian and his sureties for a set- tlement of the guardianship accounts, and a decree rendered therein for any balance due the ward upon such settlement."* But in a suit of this character, all the sureties who are living, and the representatives of those who are dead, must be made parties.'" § 69. As to matters relating to husband and wife. The statute of West Virginia expressly provides that a mar- ried woman may sue or be sued in a court of law or chancery, which may have jurisdiction of the subject matter, the same in 32« Korton V. Ohms, 67 Mich. 612, (Va.) 651; Snavely v. Harkrader, 35 N. W. 175; Eicord v. Cent. Pac. 29 Gratt. (Va.) 112, 128, 129. R. R. Co., 15 Nev 167; Boruff v. 335 Young v. Warne, 2 Rob. (Va.) Stipp, 126 Ind. 32, 25 X. E. 865; 420. Truss V. Old, 6 Rand. (Va.) 556, 18 sse Hogg, Eq. Pr., §224, p. 335. Am. Dec. 748. 33t Hutchcraft v. Shrout, 1 T. B. 330 Bingham v. Calvert, 13 Ark. Monroe (Ky.) 206, 15 Am. Dec. 100 399. In this case the court in its opin- »3i Welker v. Welker, 3 P. & W. ion, giving the reason for the rule (Pa.) 21. stated in the text, says: "It is, 832 Hogg, Eq. Pr., § 124, pp. 207, however, contended that the repre- 208; W Va. Code, 1913, c. 83, §2. sentatives of James Mitchell, one of 333 Snavely v. Harkrader, 29 the sureties in the first bond, ought Gratt. (Va.l 112. to have been brought before the S34 Sage V. Hammonds, 27 Gratt. court, and that the complainants, 101 Parties ^ § 70 all cases as if she were a feme sole.^^' In Virginia, the statute provides that she may sue and be sued in the same manner and with the same consequences as if she were unmarried.^'' Prior to the enactment of section 15 of chapter 3 of Acts of 1893, amending chapter 66 of the Code of West Virginia, a claim against the estate of a married woman could De enforced only in a court of equity.^" But under the present statute she may be sued at law upon a legal demand and equity has no jurisdiction in such a case.''*'^ And in Virginia she may now be sued in a court of law upon legal demands in the particulars pointed out by the statute as if she were unmarried. ^*^ But upon matters of contract she can not now sue her husband in West Virginia, except in a court of equity; ^""^ and vice versa.^^* But in Virginia the court seems to have reached a ditferent con- clusion.^^^ § 70. In matters relating to injunctions. Inasmuch as an injunction is a writ usually issuing as an incident to a suit in which the plaintiff asserts some equitable right of redress, we shall give only a few general principles as applying here, referring further consideration of parties while purreuing sureties, were not at 33s W. Va. Code, 1913, c. 66, § 15. liberty to select such as suited them, 339 Va. Code, 1904, § 2286a. and omit the rest. This exception 340 Wick v. Dawson, 42 W. Va. to the proceedings is well taken. If 43, 24 S. E. 587; Carey v. Burruss, Wilson's representatives are liable 20 W. Va. 571, 43 Am. Eep. 790; in case of a failure of their prin- Hogg v. Dower, 36 W. Va. 200, 14 cipal, they would be entitled to con- S. E. 995. tribution against the representatives 341 Oney v. Ferguson, 41 W. Va. of .Tames Mitchell; and if so, the 568, 23 S. E. 710. latter ought to be parties, for other- 342 Duval v. Chelf, 92 Va. 489, wise they would not be bound by the 23 S. E. 893. decree in this cause, and the repre- 343 Roseberry v. Roseberry, 27 W. sentatives of Wilson would, in a Va. 759. See cases collected in Bol- proceeding to enforce such contri- yard v. Bolyard, 79 W. Va. 554, 91 bution, be bound to prove their de- S. E. 529. mand anew, as a matter not 344 Idem. adjudicated and thus the benefit of 345 Alexander v. Alexander, 8S the decree in this cause would be Va. 353, 7 S. E. 335. lost to tlK^m." § 70 Equity Procedure 102 to the various classes of eases wherein relief by injunction may be afforded.'" Injunctions are either mandatory or preventive.'" The former requires the doing of a particular thing v^hieh will change the status of the parties,'"*^ while the latter restricts the doing of the thing and preserves the status of the parties.'^' For example, the former will issue at the suit of a municipal corporation to compel a railroad company to restore a street to its former condition, where it has laid its track upon it, and thus interfered with the use of the street;''" at the instance of the owner of an easement to remove an obstruction to its use, and the like.'^^ While the latter will issue at the instance of any one who shows the existence of a clear legal right, and a well-grounded apprehension that he will suffer an irreparable injury to such right. '^^ The plaintiff in a suit for an injunction holds only the position of a plaintiff in a bill of equity, and not that of a relator, as on information for mandamus or quo warranto.^^^ Equity will not, therefore, interfere at the suit of a private citizen to correct or prevent abuses merely public, unless the party asking it can show that some private injury is actually sustained or justly apprehended by him,'^^ as, for instance, to enjoin a public nuisance ; '" but where a private person does sustain an injury different in kind from that suffered by the 348 See Hogg, Eq. Pr., § 234, p. Burkhart \ . Scott, et al., 69 W. Va. 348, et seq. 694, 72 S. E. 784. 34T Idem, § 231. 253 Collins v. Ripley, S Iowa 129. S48 Idem. 354 Beveridge v. Lacey, 3 Eand. 349 Idem. (Va. ) 63; Keystone Bridge Co. v. 350 Mem, § 232, p. 345. Summers, 13 W. Va. 476; Bryant 351 Idem, §232, pp. 345, 346. v. Logan, 56 W. Va. 141, 49 S. E. 35= Idem, § 233, p. 347. In gen- 21 ; Davis v. Spragg, 72 W. Va. 672, eral, two things are necessary: (1) 79 S. E. 652; Meredith v. Triple irreparable injury threatened, and Island Club, 113 Va. 80, 73 S. E. (2) lack of an adequate remedy at 721, 38 L. R. A. (N.S.) 286, Ann. law. C. & C. Ey. Co. v. Conley, et Cas., 1913E, 531. al, 67 W. Va. 129, 67 S. B. 613; ss^ Idem. 103 Parttes § 70 public at. large he may be the plaintiff in an injunction bill to obtain relief.^^* When it is sought to restrain apprehended wrongs against the public the bill should be in the name of the attorney general Or other proper officer,'^'' which ' ' may be done by him ex officio, or upon the relation of persons who have an interest in the subject matter, and whose private right may be protected by a decree which is sought mainly on the ground that the right of the public will be jeoparded. " ^^* The state has a right to maintain a suit in its courts, both in its sovereign capacity and by virtue of its corporate rights.'^' Where the wrong complained of is one in which the state has no direct interest any more than it has in an ordinary controversy among individuals, the state is not a proper party plaintiff, and the suit should be institiited by the particular individual who will be injured.'^" Thus common school teach- ers, who will be entitled to part of the common school fund when their contract is fulfilled, are entitled to an injunction against the payment thereof under an unconstitutional statute to persons not entitled to such fund, although they have not taught all the session for which the money is to be used.'*^ Further, as to defendants, it is the common rule with regard to injunctions, that they will not be granted to restrain a per- 356Blagen v. Smith, 34 Or. 304, Gas Light Co., 141 YT Y. 232, 36 56 Pac. 292, 44 L. E. A. 522; Cran- N. E. 194; State, ex rel, Taylor v. ford V. Tyrrell, 128 N. Y. 341, 28 Lord, 28 Or. 489, 43 Pac. 470, 31 N. E. 514; State v. Ehrlick, 65 W. L. R. A. 473; State v. Ohio Oil Co., Va. 700, 64 S. E. 935, 23 L. K. A. 150 Ind. 21, 49 N. E. 809, 47 L. R. (N.S.) 691; McKinney v. Trustees A. 627. A municipal corporation of Emory and Henry College, 117 may, in its name, sue in behalf of Va. 763, 86 S. E. 115. its residents to enjoin illegal gas 357 10 Enc. PI. and Pr. 897, 902. rates. St. Mary's v. Hope Gas Co., See State v. Ehrlick, 65 W. Va. 700, 71 W. Va. 76, 76 S. E. 841. 64 S. E. 935. 359 State v. Ohio Oil Co., 150 Ind. S58 1 Dan., Ch. Pr. 11; 2 Story, 21, 49 N. E. 809, 47 L. R. A. 627; Eq. Jur., §921; Kenney v. Consum- State v. EhrlLcIc, 65 W. Va. 700, 64 ers' Gas Co., 142 Mass. 417, 8 N. E. S. E. 935. 138; Atty.-Gen'l v. Utica Ins. Co., ^"^ 10 Enc. PI. and Pr. 904. 2 Johns. Ch. (N. Y.) 371, 1 Law. Ed. 3" Underwood v. Wood, 93 Ky. aaid note 412-414; People v. Equity 177, 19 S. W. 405, 15 L. R. A. 825. § 70 Equity Procedure 104 son who is not a party to the suit; but. whether granted in a pending cause or not, the person whose action is sought to be restrained must be a party to the bill, upon which the applica- tion for the injunction is based. ^'^ When the lessees of an oil and gas lease bring their suit against the lessees of an adjoin- ing tract to enjoin them from trespassing upon the plaintiff's premises, and from proceeding to drill a well for oil and gas which defendants claim is on their own lease, but which plain- tiffs claim is on their premises, the lessors of both leases, and all persons having an interest in the oil or gas which might be produced from the well, the drilling of which is sought to be enjoined, are necessary parties to the suit, to enable the court to settle the rights of all parties interested or affected by the subject-matter in controversy.^*' As in other suits, the state cannot be made a defendant to an injunction bill, with- out her consent;'" but, though the state cannot be sued, the right to sue a state officer, either to require or inhibit the per- formance of a mere ministerial duty, repeatedly has been rec- ognized.^''' Therefore, an injunction will lie against the audi- 362 Robertson v. Tapscott, 81 Va. Campbell v. Bryant, 104 Va. 509, 533, 549; Chapman v. Harrison, 4 52 S. E. 638. Rand. (Va.) 336; Lyne v. Jackson, ■'«* C. & 0. Ey. Co. v. Miller, Audi- 1 Rand. (Va.) 114; Fellows v. Fel- tor, 19 W. Va. 408; John Slack v. lows, 4 Johns. Ch. (N. Y.) 25, 1 L. Jacob, et al., 8 W. Va. 612, in the Ed. 751; Johnson v. Hampton Insti- opinion of the court; 10 Enc. PI. tute, 105 Va. 319, 54 S. E. 31. and Pr. 911. The state may be, in 363 Steclsmith v. Fisher Oil Co., effect, a party by reason of the fact 47 W. Va. 391, 35 S. E. 15. But that a state officer is sued. In such "consumers of natural gas are not a case, the nature of the relief necessary parties to a bill by a mu- sought determines whether the state nicipal corporation against the gas is actually a party. C. & O. Ry. Co. company to enjoin alleged violation v. Conley, et al., 67 W. Va. 129, 67 of its franchise contract, and for an S. E. 613. accounting of gas sold." City of 5«5 C. & 0. Ry. Co. v. Miller, 19 Wheeling v. The Natural Cas Co. W. Va. 408, in the court's opinion, of W. Va., 74 W. Va. 372, 82 S. E. citing Osborn v. Bank of U. S., 9 345. Nor in a bill against the mayor Wheat. 738; Davis v. Gray, 16 Wall. and council of a town to enjoin col- 203; Board of Liquidation v. Mc- lection of a tax is it necessary to Comb, 2 Otto 531; Williamson v. make the town a party by name. Massie, 33 Gratt. 237 ; State v. Gov- 105 Parties §71 tor of the state to restrain him from the performance of a mere ministerial duty.'** When the duty to be performed is purely executive and polit- ical, the state officer cannot be restrained by injunction.^" And it is decided that equity will enjoin an executive officer from doing unlawful acts under color of an executive office, such as any illegal acts of the commissioner of agriculture under the laws of Virginia.'*^ § 71. In matters relating to judgments and decrees. It is settled as a general rule that no one can invoke the aid of a court of equity to enjoin a judgment or for relief against it, who is not a party to it,'*' or in privity with such party,"" excepting those who, though not actual parties, have a direct and substantial interest in the result of the suit.'^^ And "all persons interested in the judgment adversely to any relief against its operation,"'" or whose rights will be affected by emor, 5 Ohio St. 528; Galloway v. Jenkins, 63 N. C. 147 ; MeDougal v. Roman, 2 Cal. 80; Bryan v. Oattel, 15 Iowa 538; Swann v. Buck, 40 Miss. 268; Magruder v. Swann, 25 Md. 173; Commonwealth v. Rail- road Co., 53 Pa. St. 9. Also, see C. & O. Ry. Co. V. Conley, et al, 67 W. Va. 129, 67 S. E. 613. Here the authority of an oflBcer to act under an unconstitutional law af- iccting property rights was in- volved. "State officers who, under the color of the authority of unconsti- tutional state legislation, are guilty of personal trespasses and wrongs, may be sued, although the constitu- tion of this state provides that the state shall never be made defendant in any suit at law or in equity; and suits may be maintained against such officers in their official capac- ity, to arrest or direct their official action, by injunction or mandamus, when said suits are authorized by law, and the act to be done or omit- ted is purely ministerial, in the per- formance or omission of which the plaintifiF has a legal interest; but in other cases sueli suit can not be maintained when such officer is only a nominal party, for such suit is only tantamount to a suit against the state." Blue Jacket Copper Co. V. Scherr, 50 W. Va. 533, 40 S. E. 514. S68 Idem. SOT Idem. 308 Blanton, Com'r, v. Southern Fertilizer Co., et al., 77 Va. 335. 369 Jordan v. Williams, 3 Rand. (Va.) 501. 3T0 Ellis V. Harrison, 24 Tex. Giv. App. 13, 57 S. W. 984. 3713 Enc. PI. and Pr. 621, 622; 15 Stand. Pro. 363 and cases cited. ■'>■'- 11 Enc. PI. and Pr. 1173; 15 Stand. Pro. 363, and cases cited. Equity Procedure 106 the suit,^" as well also as the parties to the judgment or their privies,'''' should be made parties defendant. Thus to a suit brought to restrain the sheriff from selling certain property to satisfy fee bills and executions issued thereon, the plaintiffs in the judgments are necessary parties defendants.''" And it is said that all parties charged with participating in the fraud by means of which the judgment was obtained are necessary par- ties defendant.''^ The same rules as to parties apply as to bills tiled to impeach or enjoin the decrees of a court of equity.'" § 72. In matters relating to legatees and distributees. Legatees and distributees,^'^ either alone or jointly, may maintain a suit for the payment of legacies or the distributa- ble shares due them from the estate of a decedent."^ And the 373 Harrison v. WalUon, 95 Va. 721, 30 S. E. 372, 64 Am. St. Rep. 830. 374 York V. Cartwright, 42 Tex. 136; 1.5 Stand. Pro. 363, and cases cited. 375 Howell V. Foster, 122 111. 276, 13 N. E. 527. 3T6 n Enc. PI. and Pr. 1174. 377 3 Ene. PI. and Pr. 620-622. 378 We have used the word "dis- tributees" here as synonymous with the heirs at law and widow of an intestate who may share in the dis- trihution of his estate, and "lega- tees" as those who take under the will of a decedent. 379 Eexroad v. McQuain, 24 W. Va. 32; Woodyard v. Buffington, 23 W. Va. 195; Sillinga v. Bumgard- ner, 9 Gratt. (Va.) 273; Currence V. Daniels, 5 W. Va. 418. As a general rule, a legatee may sue the executor for his own par- ticular legacy, without making the residuary legatees parties to the suit. AUter, where one of the re- siduary legatees sues for his share ■ of the residue; an account of the estate being necessary in that case. Cromer v. Pinckney, 3 Barb. Ch. (N. Y.) 466; Pritchard v. Hicks, 1 Paige Ch. (N. Y.) 270. And see Brown v. Ricketts, 3 Johns. Ch. (N. Y.) 553. But it has been held that one residuary legatee may file a bill on behalf of himself, and all others standing in the same situation, and it is not necessary to make them all parties to the suit. Where a bill is for the payment of a particular legacy, if the defendant admits a sufficiency of assets, a decree for the payment may be made without any general account of the estate. But if it appears by the answer that there is a deficiency of assets, the decree must be for a general account and distribution among all who may come in and establish their claims under the decree. Hallett v. Hallett, 2 Paige Ch. (IST. Y.) 15. And see Marsh v. Hague, 1 Ed. Ch. (N. Y.) 174. 107 Parties §'72 distributees of a deceased person may maintain a bill in equity, to impeach and set aside a deed of gift of personal estate made by the decedent in his lifetime,^^" and it may, at their suit, be declared fraudulent, and annulled; but the subject itself can only be decreed to the personal representative of the decedent, or to the distributees when the representative is a party to the suit.'*^ The personal representative of a- deceased distributee, not the next of kin of the latter, is the proper person to sue for the distributive share,'^^ unless the distributee died in the lifetime of the original decedent; that is, unless the distributee died before the original decedent, in which case the rule is other- wise.'^' An assignee of a distributee has the same right to maintain a suit with reference to the estate of the decedent that his as- signor possessed.'** As a general rule, a distributee or legatee cannot sue, either at law or in equity, to recover personal assets of the estate of the decedent, this right belonging to the personal representa- tive.'*^ But the rule is not universal, as there are instances in which a distributee or legatee may sue for the recovery of personal assets belonging to the estate of a decedent, as where the personal representative refuses or declines to sue, or col- Legatees and annuitants are bound 382 Hay's Ex'r v. Says, 5 Munf. by the proceedings in a suit for ad- (Va.) 418. ministration between the executors 383 Tison v. Tison, 12 Ga. 208. and residuary legatees and devisees, 384 Selleck v. Mathews, 7 Rich. L. although there may be a question as (S. Car.) 26. to the debts being primarily charged 385 Manifold v. Jones, 117 Ind. upon real estate, which may inci- 212, 20 N. E. 124; Jenkins v. Frey- dentally affect them; they can not, er, 4 Paige Ch. (N. Y.) 47, 3 L. Ed. therefore, after decree in such suit, 336, note; Beeeher v. Grouse & sustain an administration suit Bruce, 19 Wend. (N. Y.) 306, 13 L. against the executors. Jennings v. Ed. 617; Gravely v. Gravely, 84 Va. Patterson, 15 Beav. 28. 145, 4 S. E. 218. See note to Buch- 380 Samuel v. Marshall, 3 Leigh anan v. Buchanan, 22 L. E. A. (N. (Va.) 567. S.) 454, citing numerous authorities 381 Samuel v. Marshall, 3 Leigh from many states. (Va.) 567; Hansford v. Elliott, 9 Leigh (Va.) 79. § 72 Equity Procedure 108 ludes with the debtor to the injury of the estate, or where other special fact^ or circumstances exist warranting it.'*" In a suit by one or more distributees for a settlement of the estate and recovery of their shares, the administrator, widow and all the other distributees are necessary parties.^*^ If the suit is brought by one legatee against the personal representa- tive of the testator to have his legacy paid, when the fund out of which it is to be paid is not definitely ascertained, all the legatees having an interest in such fund must be made par- ties to such suit.'** But a party entitled to a legacy of an amount certain may maintain a suit therefor without mabing the other legatees parties, and especially may he so maintain the suit where the assets are sufficient to pay all.'*^ If the suit be, however, by a residuary legatee, all the distributees or legatees, together with the personal representatives of any who have died since the death of the intestate or testator, as the case may be, should be made parties thereto,^^" unless it appears that all prior legacies have been satisfied.*'^ If suit be brought against an executor for the surplus or residuum after the pay- ment of debts and legacies or other prior incumbrances, all the creditors, legatees and prior incumbrancers, are necessary parties.''^ In all cases for the recovery of a legacy or distribu- tive shares of the estate, the personal representative must be 3se Nance v. Powell, 4 Ired. Eq. 387 Woodyard v. Buffington, 23 W. (N. C.) 303; Trotter v. Mut. R. F. Va. 195; Slaughter v. Froman, 5 T. Assn., 9 S. D. 596, 70 N. W. 843, B. Monroe (Ky.) 19, 17 Am. Dee. 1. 62 Am. St. Rep. 887; Mason v. -'iss Eexroad v. McQuain. 24 W. Spurlock, 4 Baxt. (T™n.) 554; Vu. 32. Morgan v. Woods, 69 Ga. 599; -iss Sharpe v. Rockwood, 78 Va. Hansford v. Elliott. 9 Leigh (Va.) 24. 99; Dugger v. Tayloe, 60 Ala. 504; sno Sheppard v. Starke, 3 Munf. Evans v. Evans, 23 >f, j. Eq. 71; (Va.) 29; Richardson v. Hunt, 2 Beaty v. Downing, 96 Va. 451, 31 Munf. (Va.) 148; Sharpe v. Rock- S. E. 612; Dulaney v. Smith, 97 Va. wood, 78 Va. 24. 130, 33 S. E. 533; Tahh v. Caboll, !"i Sharpe v. Rockwood. 78 Va. 17 Gratt. (Va.) 161; Matheny ,-. 24. Ferguson, 55 W. Va. 656, 47 S. E. -"i-' Sharpe v. Rockwood, 78 Va. 886; Thompson v. Hern, 62 W. Va. 24; Xelson v. P 'ge, 7 Gratt. (Va. ) 497, 59 S. E. 504, 22 L. R. A. (N.S.) 160. 454, 456, note. 109 Parties §• 73 a party defendant ; ''^ and so, too, where suit is brought by distributees to recover assets of the estate when the personal representative refuses to sue or colludes with the debtor."* Legatees and distributees may be made defendants in a suit by creditors, where the personal representative is insolvent, to require payment of their debts out of the assets in the hands of such legatees and distributees ; '^' but to such a suit all the legatees and distributees and the personal representative should be made parties,^^" unless it appears that such representative has settled his accounts and delivered the estate over to the legatees and distributees.^^' It is well settled that a legatee or creditor of a decedent's estate cannot maintain a suit against the personal representa- tive of the decedent and another who is a debtor to the estate, except under special circumstances. What constitutes such spe- cial circumstances as will justify such a joinder has never been limited by any precise and rigid rule.^^* The circumstances usually relied on, and which have been held sufficient to author- ize such joinder, are the insolvency of the personal representa- tive; collusion between him and the debtor; the fact that the debtor was a partner of the decedent, or a trustee holding property for him, or an agent of the decedent.'^' § 73. In the matter of the enforcement of liens. Under this section will be considered the matter of parties necessary and proper in suits to enforce all liens, except judg- 393 Robertson v. Gillenwatera, 85 397 Hooper v. Eoyster, 1 Mnnf. Va. 116, 7 S. E. 371; Nease v. Cape- (Va.) 133. hart, 8 W. Va. 95. 39s Beaty v. Downing, 96 Va. 451, S04 Thomas v. White, 3 Littell 31 S. E. 612, citing Hagan 4 Hogg, Eq. Pr., § 384, p. 516. maca Granite Co. v. Pac. Pay. Co., See Childers v. Neely, 47 W. Va. 70, 95 Cal. 252, 30 Pac. 525; Strong v. 34 S. E. S2S, 49 L. R. A. 468, 81 Clawsen, 10 111, 346; Gyger's Ap- Am. St. Rep. 777. peal, 62 Pa. St. 73, 1 Am. Rep. 382. ■is". Courson v. Parlter, 39 W. Va. 480 15 Ene. PI. and Pr. 1070; 30 521, 20 S. E. 583; Dunbar v. Bucli:, 6 Munf. (Va.) 34. 123 Pauties § 79 when the suit may be against those only who are within the court's jurisdiction.'''* In a suit for the dissolution of the partnership and an accounting, all the partners and the personal representatives of those who are dead, are necessary parties thereto,"'' even though the whereabouts of some of them are unknown and they are beyond the court's jurisdiction,'"^ unless it appear from the averments of the bill and the proof in the cause that the interests of such persons will not be prejudiced by the decree, and also that they are not necessary to the just ascertainment of the merits of the case or the protection of other persons who are made parties."'' The purchaser of a partner's interest, the mortgagee of a surviving partner and the assignee of a bank- rupt partner are necessary parties to such a suit;^"" but cred- itors of a firm as a general rulo,^"' or heirs at law and distribu- tees are not necessary parties.^'^ When a sole general partner is doing business under a firm name in which another person is interested as a special partner, and such sole partner brings suit, in the firm name, on a claim in which the special partner has no interest, it is not necessary to make such special partner a party.^'^ § 79. In matters of specific performance. Either party to a written contract for the sale of land may maintain a suit for its specific performance; "'" and any one *96 Courson v. Parker, 39 W. Va. spe 30 Cyc. "24. Creditors, though 521, 20 S. E. 583; Weimer v. Rector, not necessary parties, may be per- 43 W. Va. 735, 28 S. E. 716; Brown mitted to intervene for the proteo- V. Belcher, 1 Wash. (Va.) 9. tion of tlieir interests. 2 Rowley, *<>■! 15 Enc. PI. and Pr. 1074; 30 Modern Law of Partnership, §719. Cyc. 722-4; 2 Rowley, Modern Law "0215 Enc. PI. and Pr. 1077. of Partnership, § 719. Heirs may he made parties where ■108 15 Enc. PI. and Pr. 1075; 30 their interests would be affected. Cyc. 722-4. , 2 Rowley, :\fodern Law of Partner- 's 15 Enc. PI. and Pr. 107G. ship, § 719. nonMem, 1078; 30 Cyc. 723; 2 503 Wt.therill v. McCloskey, 28 W. Rowley, Modern Law of Partner- Va. 195. ship, § 719. 604 Creigh v. Boggs, 19 W. Va. 501 15 Enc. PI. and Pr. 1078. But 240. [6] § 79 Equity Procedure 124 who has a legal or equitable interest to promote or protect tinder the contract, whether originating at the execution of the contract or subsequently thereto, may maintain such a suit.°°^ Thus, under this rule, a beneficiary in a deed of trust, or such beneficiary and the trustee, by virtue of a contract made by a third party with the trustee in such deed of tnast ; ^"^ a son, under a contract made with the father by a third person for the purchase of real estate to be conveyed to the son upon the payment of the purchase money when the purchase money is paid ; '"' an assignee of a vendee ; ^"^ after the death of the vendee, his heirs at law ; ^"^ after the death of the vendor, his personal representative ; ^" a third person for whose benefit the contract was made, though not a party or privy to it ; '^^ an assignee of the vendor ; ^^^ a receiver of a corporation, when directed by the court, under a contract made with the cor- poration ; ^^' and an infant under a contract made in his behalf upon full consideration actually paid, — may maintain suit for specific performance.^^'' It is laid down upon principle and authority, that all par- ties whose rights may be in any wise affected by the decree to be rendered in the cause should be before the court in a suit for specific performance.^^^ Thus, to a suit by a vendee, a party to whom part of the purchase money notes were made payable,'" or assigned "' by the vendor to enforce payment of the purchase money ; by the heirs at law of one of the origi- 506 Hogg, Eq. Vt., § 400, pp. 534, 613 Davis v. Talbot, 137 Ind. 235, 535. 36 N. E. 1098. 606 Idem. 514 20 Ene. PI. and Pr. 429, citing 507Fleniin- :„ tees of Emorv and Henry College v. 45 S. W. 1095; Brown v. Riggin, s,,^,^,,^,,,, college, 92 Va. 320, 23 94 111. 560. S. E. 765; Withers v. Sims, 80 Va. 592 Campbell v. Campbell, 130 111. 651. 466, 22 N. E. 620, 6 L. E. A. 167. B97 1 Eedf., Wills, 438, § 31. 593 /(iem. 598Rexroad v. Wells, 13 W. Va. 694 Bowers v. Smith, 10 Paige Ch. 812; Martin v- Martin 52 W. Va. ,^T -., > ,«o , T T^j n^A J i. 381, 44 S. E. 198; Buskirk v. Rag- (N. Y.) 193, 4 L. Ed. 940 and note; j^^^^^ ^g ^ ^^ ^^g^ gg g ^ i^f. Buskirk v. Ragland, 65 W. Va. 749, Messer v. Reitz, 81 W. Va. 483, 94 65 S B. 101. S. E. 952; Prieliard v. Prichard, 83 695 M™, W. Va. 052, 98 S. E. 877; Callison ,7 T, J -.TT „ ,o TTT V. Bright, 85 W. Va. 700, 102 S. E 596 Idem; Rexroad v. Wells, 13 W. ,.75. j?„.j,^y Lumber Co. v. Wellons. Va. 812; Bullard v. Chandler, 149 106 S. E. 382 (W. Va. 1921). Mass. 532, 21 N. E. 951, 5 L. R. A. 139 Parties § 86 will, which from the actual condition of the estate, presents no present embarrassment to the performance of his duties, and probably never will, he cannot sustain such a suit.^'^ Nor can a trustee request instructions of a court of equity as to what may be his duty upon the happening of future contingencies.*"" For example, a testator had devised property in trust to pay the income to A for life, with remainder to his children for life, and on their death to pay the principal to A's grandchil- dren on their respectively coming of age. At the death of the testator A had one child living who was then unmarried. At the death of A this child had children living. It was held that the trustee could not ask the instruction of the court on the question whether the devise to the grandchildren was void for remoteness until the death of the child of A.*"^ Nor can an heir at law of a testator or devisee, who claims a mere legal estate in the real estate, when there is no trust involved, come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will.^"^ s99See same authorities. may never arise, or, if at all, at 600 Bullard v. Chandler, 149 Mass. ^o"" i-"™"*? '^^*f [ ^""'^ P°' ^1^!!"^ T T. . -.^j postponed for future consideration 532, 21 N. E. 951, 5 L. R. A. 104. ^p„„ ^^e application of the fiduciary "Generally jurisdiction in equity or other persons interested when the to construe wills arises only in cases occasion therefor is presented." , ,, . ., . , Prichard v. Prichard, 83 W. Va. where there is necessity for such g^^^ ,,g g ^ g^^ g^J g^^^^y Lum- construction in relation to actual ^,g^ q^ y Wellons, 106 S. E. 382 litigation as to matters which are (W. Va. 1921). proper suhjects of equity jurisdic- 60l Minot v. Taylor, 129 Mass. tion. Usually there must be some- 160. thing more in a suit than a mere It, has often been held that one ... , . i , of the principal requisites for the construction of an instrument. maintenance of a bill for instruc- "Though a trustee or other iidu- tions is the fiduciary possession of ciary is sometimes permitted to a fund of whicli some disposition is come into . court of equity for a '■^l"'''^'! to be made presently Put- , , , nam v. CoUamore, 10!) Mass. 5U9- construction of an instrument under jj^uj^oq^ y. Muldoon, 133 Mass. Ill which he is acting, he is permitted Wilbur v. Maxam, 133 Mass. 541 to do so only for the purpose of Bullard v. Chandler, 149 Mass. 532, guidance in the administration 21 N. E. 951, 5 L. R. A. 104. thereof as immediate necessities 602 Bowers v. Smith, 10 Paige Ch. , ,, , , (N Y.l 193, and note: Magers v. may require, and the court properly u>. i-; ^ "^j ^^ < & may decline to extend its construc- tion to cover contingencies which § 87 Equity Procedure 140 The necessary defendants to a bill for the eonstruction of a will or other instrument, are all those interested in the matter to which its construction relates."" Thus in a suit brought for the purpose of construing a will, all the legatees and heirs at law of the testator must be made parties. It is not sufficient to make the legatees parties, as such, though they are themselves all the heirs at law of the testator. They must be made parties as heirs at law also.*"* And all persons having an interest or color of interest in the residuum of an estate must be parties to a suit in which the court is asked to decide upon the construc- tion of a will affecting that residuum.'"^ § 87. Joinder of parties. It has been well said that there is no inflexible rule as to the joinder of parties in equity.^"' The rule in equity is very dif- ferent from that which obtains in actions at law. In actions at law a disputed issue alone is contested, and the parties, plain- tiff and defendant, must be so arranged that all the plaintiffs shall support one side, and all the defendants the other side, of the issue ; *•" while in equity it is requisite only that the inter- ests of the plaintiffs be consistent and it is immaterial that the defendants are in conflict with each other, or that some of the claims are identical with those of the plaintiff.*"' But it is a fundamental principle of equity pleadings that all persons materially interested in the subject-matter of the suit, and who will be directly affected by the decision to be rendered, must be joined as parties plaintiffs or defendants.^"' Sldwards, 13 W. Va. 822; Buskirk eoo gnyder v. Cabell, 29 W. Va. V. Ragland, 65 W. Va. 749, 65 S. 48, 1 S. E. 241; Murray v. Hay, 1 E. 101. Barb. Ch. (N. Y.) 59, 5 N. Y. Ch. eosMcMeekin v. Rioliards, 81 Ga. L. Ed. 299, 43 Am. Bee. 773. 192, 6 S. E. 185; Lomerson v. o" Meek v. Spracher, 87 Va. 152, Vroom, 42 N. J. Eq. 290, 11 Atl. 12 S. E. 397. 13; Gaddess v. Norris, 102 Va. 625, «"» Idem. 46 S. E. 905. «08 Howell v. Foster, 122 111. 276, 604 Lomerson v. Vroom, 42 N. J. 13 N. E. 527, citing, 1 Daniel, Ch. Eq. 290, 11 Atl. 13. Pr. (Perkins Ed.) 240; Smith v. cotiOsborn v. Taylor, 12 Gratt. Rotan, 44 111, 506; Lynch v. Rotan, (Va.) 117. 141 Pakties §87 Parties having no real interest in the suit inay sometimes be permitted to join with those who are the real parties in inter- 39 111. 14; High, Tnj., §752. See ante, §§ 37-41 and citations. We here subjoin the discussion of Sutherland, J., in Follows v. Fel- lows, 4 Cowen 682, 8 Law. Ed. 529, 15 Am. Dec. 412, on the general question of the joinder of parties: "It is a favorite abject with a court of equity to prevent multiplicity of suits. For this purpose, it is a general rule, in chancery, that all persons materially interested must be made parties. Creditors are per- mitted to unite in calling on tho representatives of a deceased debtor, for an account of the assets of the estate; or one or more of them may prosecute the suit in behalf and for the benefit of the whole. The forms of proceeding in chan- cery, and the power of the court to mould its decrees so as to suit the various equities of the case, as es- tablished by the proof, enable it ad- vantageously to settle and adjust, in a single suit, rights and interests which, according to the rules of pleading in the courts of common law, would necessarily result in various issues, incapable of being tried in a single cause, and disposed of by* a single judgment. "But, notwithstanding this dis- position of a court of equity to pre- vent the multiplication of suits, it will not permit several plaintiffs to demand by one bill several matters perfectly distinct and unconnected against one defendant; nor one plaintiff to demand several matters of different natures against several defendants. And the reason of this rule is said to be that such a pro- ceeding would tend to load each de- fendant with an unnecessary burden of cost, by swelling the pleadings with the statement of the several claims against the other defendants with which he has no connection. Coop., Eq. PI., 182; Mitf. 146; 2 Madd. Ch. 294; 2 Harr. Ch. Pr. 289; 1 East 227. And also to prevent confusion, and to preserve some analogy to the comparative simplic- ity of declaration at common law. But where several persons, although unconnected with each other, are made defendants, a demurrer will not lie, if they have a common in- terest centering in the point in issue in the cause. Anst. 477; 2 Madd. Ch. 294. Nor will it lie where one general right is claimed by the bill, though the defendants have separate and distinct rights. Thus, in the Mayor of York v. Pilkington, 1 Atk. 282, it was held that a bill to quiet the plaintiff in a right of fishery might be brought against several defendants, although there was no privity between them and the plaintiff, and they claimed dis- tinct rights. The plaintiff claimed a general right to the fishery extend- ing to all the defendants; and it was held that they might avail them- selves of their several exemptions and distinct rights, upon an issue to try the general right. The bill was sustained for the sake of peace, and to prevent multiplicity of suits. A bill against several unconnected de- fendants to establish a custom of a mill, and a right to tithes, has been sustained upon the same general principle; and that it was for the §87 l^QOTTT Procedure 142 est, in order to show tlieu- acquiescence in the rights of the real parties interested, or to show a sort of disclaimer on their establishment of a right liable to invasion by all the world. Whaley V. Dawson, 2 Sch. & Lef. 370. But the proprietor of a copyright can not proceed in one bill against sev- eral booksellers, between whom there is no privity or connection, for a violation of his right. "This was so held in Dilly v. Doig, 2 Ves, jun. 486, and the Lord Chancellor remarks that he does not remember any case upon patent rights where a number of persons, acting all separately, upon distinct grounds, have been permitted to be brought before the court in one bill; and he takes the distinction between a bill to establish a right of fishery or the custom of a mill, and the case then before him. So, also, if an es- tate is sold in parcels to different purchasers, the vendor can not unite them all in one hill lor a specific performance, nor can they unite in one suit against the vendor for the same purpose; for each contract is separate and independent, and each case must depend on its own pecu- liar circumstances. Eaynor v. Jul- ian, 2 Dick. 677; Coop., Eq. PI., 182. In the case of Ward v. The Duke of Northumberland and the Earl of Beverly, 2 Anst. 469, the bill was held bad, not only because a considerable part of it related merely to the private concerns of the duke, with which Lord Beverly had no concern, but it was as bad as against the duke alone, because, although he was interested in every part of it, it was in different char- acters; individually and solely as to some, and in the character of ex- ecutor, and jointly with Lord Bever- ly as to others. But Chief Baron McDonald there recognizes the prin- ciple 'that unconnected parties may be joined in a suit where there is one common interest among them all centering in the point in issue in the cause.' "It is not sufficient, as was held in Saxton v. Davis, 18 Ves. 71, that the parties have a common interest in some one or more items in an account charged. The contrary posi- tion was taken in that case by the counsel for the complainants; but it was conclusively answered by Sir Samuel Eomilly that if that were sufficient, the objection to a bill, as multifarious, could never be sus- tained. They must have a common interest, not in a particular item, or insulated charge in the bill, but in the point in issue in the cause, and it seems to be the general test laid down in all the elementary writers and acknowledged by all the cases in England. The only difficulty is in its application. This question was fully considered and discussed by the late chancellor in Brinkerhoff V. Brown, 6 Johns. Ch. 139, which was a case very analogous, in many respects, to the one now before the court. The complainants in that case were several distinct and un- connected judgment-creditors of the Genesee Manufacturing Company; and the object of the bill was to ob- tain satisfaction of their debt out of the property of the company, which they alleged had been withdrawn 143 Parties §87 part to any interest in the subject of litigation."" Thus "it was not necessary that the husbands of the married daughters, or the donors of the fund to whom it would ultimately revert, should join in a petition to the court that the income of the fund should be paid to the unmarried daughter, as she was the only party in interest. " ^^^ But they may unite simply as evidence that they claim no interest in the trust subject. ^^^ In arranging the joinder of parties, all persons having the same interests should stand on the the same side of the suit; but if any such refuse to appear as plaintiffs, they may be made defendants, their refusal to become plaintiffs being stated in from the reach of their executions by the fraudulent acts of the de- fendants, some of whom were the trustees of the company; and one object of the bill was to charge the trustees individually for neglect of duty and fraud. With that charge, it was said, the defendants, who were not trustees, had no concern. Another object was to charge others of the defendants as stockholders; and another to redeem certain per- sonal property purchased by two of the defendants, with which the other defendants were not sho^vn to have any concern. The bill charged that five of tlie defendants fraudu- lently confessed to a certain judg- ment, in which the other two were not alleged to have had any inter- est; and the bill was demurred to as multifarious, on these among other grounds. The chancellor, after stating the facts of the case, re- marks: 'It thus appears from the bill that all the defendants were not jointly concerned in every injuri- ous act charged. There was a series of acts on the part of the persons concerned in this company, all pro- duced by the same fraudulent intent and terminating in the deception and injury of the plaintiff. The de- fendants performed different parts in the same drama, but it was still one piece, one entire performance, marked by different scenes; and the question now occurs whether the several matters charged ar« so dis- tinct and unconnected as to render the joining of them in one bill a ground of demurrer.' "After considering all the English cases he observes that 'the principle to be deduced from them is that a bill against several persons must re- late to matters of the same nature and having connection with each other, and in which all the defend- ants are more or less concerned, though their rights in respect to the general subject of the case may be distinct.' " 010 Ward v. Funsten, 86 Va. 359, 10 S. E. 415. oil Idem. oi^Zrfem. §87 Equity Procedure 144 the bill."^ Parties should not be joined as plaintiffs in a suit 813 1 Daniell, Ch. PI. Pr. (Sixth Am. Ed.), 185, citing, Contee v. Dawson, 2 Bland (Md.) 264; Pog- Bon V. Owen, 3 Desaus, (S. C.) 31; Cook V. Hadley, Cooke (Tenn.) 465; Morse v. Hovey, 9 Paige (N. Y. ) 197; Bartlott v. Parks, 1 Cusli. (Mass.) 86; Wliitney v. Mayo, 15 111. 251; Smith v. Sackett, 5 Oilman (111.) 534; Lovell v. Farrington, 50 Maine 239. See also, Adams Equity ( Eighth Ed.) 312; Fleming v. Molt, 12 W. Va. 143; Tavenner v. Barrett, 21 W. Va. 656; Morse v. Hovey, 9 Paige Ch. (N. Y.) 197, 4 Law. Ed. 635. In Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 583, Poffenborger, J., in the course of his opinion as to the matter of the joinder of parties and their arrangement on the record as parties to the suit, says: "It is urged in support of the demurrer that it was error to make Flavelle a defendant instead of joining him as a plaintiff, and that the allegations of the bin are not sufficient grounds for the relief prayed for. At law persons jointly interested in the ob- ject of the suit must stand on the same side of the case iipcm the rec- ord; but in equity, while it is prop- er so to arrange tlic parties, it is generally held to be .sufficient if all persons interested on the subject- matter of the cause be made parties thereto, cither as plaintiffs ur de- fendants. In equity all parties to a suit are, or may be, actors therein, without regard to the formal posi- tions on the record, and ordinarily it is a matter of little consequence whether a party appears as a com- plainant or as a defendant, for the court can make such decree as the exigencies of the case may require, decreeing for or against one or more of the several plaintiffs and for or against one or more of the several defendants. 15 Enc. PI. and Prac. 672. " 'In equity it is sufficient that all the parties in interest are before the court as plaintiffs or defend- ants; and they need not, as at law, in such case, be on opposite sides of the record.' 1 Story, Eq. Jur., 630. " 'The court can only decree as be- tween parties to the suit, but in equity it is not essential, as at law, that the parties litigant should be on opposite sides of the case.' Piatt V. Oliver, 3 McLean, 27 Fed. Cas. No. 11, 116. " 'The position of the parties on the record as plaintiffs or defend- ants is immaterial; all are actors.' Mr. .Justice Gray, in ilcArthur v. Scott, 113 U. S. 386 (5 Sup. Ct. 652; 28 Law. Ed. 1015). 'While at law all persons having a joint in- terest must join in the action as plaintiffs, in equity the general rule is, it is sufficient if all the parties interested in the subject of the suit are before the court either as plain- tiffs or defendants.' Parkman's .\dmr. v. Aicardi & Tool, 34 Ala. 393. "In Fleming, Admr. v. Holt, et al., 12 W. Va. 143, n cestui que trust made his trustees in a deed of trust and the grantor therein defendants in his bill, ;ind the court held that, while the trustee might have been 145 Parties 88 without their knowledge or consent ; "'' and if parties are made plaintiffs without their consent, or if they refuse to be consid- ered as plaintiffs, or if they as co-plaintiffs, being necessary parties, decline to prosecute the suit further, upon motion of the plaintiffs they may be made defendants.*^^ If the interest of a person who is a necessary party to a suit be on the side of the plaintiff, and he be a non-resident, this is a sufficient excuse for his non-joinder."'' § 88. Joinder of husband and wife in West Virginia. The statute of "West Virginia permits a wife to sue alone without joining her husband in the following cases : more appropriately joined as a plaintiff, it was sufficient that he was made n defendant. In Taven- ner v. Barrett, 21 W. Va. 656, a, vendor sued for the specific execu- tion of his contract of sale of real estate and collection of the purchase money, for which his agent had taken bonds payable to himself, by virtue of which said agent was held to be a trustee holding the legal title to the bonds for the use of the vendor, and the court held that the trustee or agent must be made a party, either as plaintiff or defend- ant, and that he might be made either a coplaintiff with the vendor or a defendant with the vendee. "Flavelle having been made a de- fendant, and sustaining on the face of the bill the double relation towards Sadler of trustee and a per- son jointly interested with him as purchaser and encumbrancer or mortgagee, as the case may be, and it also appearing from the bill that he is a non-resident — a fact generally held to constitute a sufficient reason for malting a person a defendant -who otherwise would more properly. be a coplaintiff — the demurrer can not be sustained upon the ground that Flavelle is made a defendant instead of a coplaintiff." fii* 1 Daniel], Ch. PI. Pr. (Sixth Am. Ed.) 185, citing, Gravestine's App., 49 Penn. St. 510: "If a party has been improperly made a co- plaintiff without his privity or con- sent, the proper course is to move that his name be stricken out, not that the bill be dismissed. Southern Life Insurance & Trust Co. v. Lanier, 5 Fla. 110, 58 Am. Deo. 449. It is held in Sears v. Powell, 2 Johns. Ch. 259, 1 Law. Ed. 1076, that 'a motion by the plaintiff to have his name struck out of the bill because it was inserted without his knowl- edge or consent is too late, after publication passed, and when the plaintiff knew that his name was used immediately after the bill was filed, and suffered more than a year to elapse before he made his appli- cation.' " «i5 McConaughey v. Bennett, 50 W. Va. 172, 40 S. E. 540. 610 Parkman v. Aioardi, 34 Ala. 393, 73 Am. Dec. 457. § 89 Equity Procedure 146 (1) Where the action concerns her separate property. (2) Where the action is between herself and her husband. (3) Where she is living separate and apart from her hus- band."" The purpose of this statute was to remove the wife 's disability to sue alone, and was not intended to take away any of her common law rights or remedies."'^ She may therefore join her husband with herself as plaintiff in a suit concerning her sepa- rate property, although she may in such case sue alone.'^^ In the absence of statute, a husband and wife must unite as plain- tiffs in a suit to protect and secure a wife's rights and interests in her real estate, when the same is not her sole and separate property.*^" § 89. Joinder of husband and wife in Virginia. The former rule in Virginia required the joinder of the hus- band with a married woman in a bill against her as executrix, but it is believed that this rule no longer obtains in that state."^^ And it is said that inasmuch as the statute creating a separate estate in the wife in the instance therein specified, does not de- prive a husband of his right to curtesy, if the suit involve the lands of the wife, the husband should be a party to it.^^^ "The general rule," says Mr. Barton, "is, that a married woman cannot sue except jointly with her husband, although where the husband and wife sue in right of the wife, it is regarded as the bill of the husband, and the wife is only joined 817 W. Va. Code, 1913, c. 66, § 13. Woodford, 37 W. Va. 377, 16 S. B. 618 Fox V. Manufacturers' Fire In- 602; Clay v. City of St. Albans, 43 surance Co., 31 W. Va. 374, 6 S. E. W. Va. 539, 27 S. E. 368, 64 Am. 929. See review of decisions in St. Eep. S83; Normile v. Wheeling Normile v. Wheeling Traction Co., Traction Co., 57 W. Va. 132, 135-6, 57 W. Va. 132, 135-6, 49 S. E. 1030, 49 S. E. 1030, 68 L. R. A. 901. 68 L. R. A. 901. 020 VTyatt v. Simpson, 8 W. Va. 819 Fox V. Manufacturers' Insur- 394. ance Co., 31 W. Va. 374, 6 S. E. 8211 Bart., Ch. Pr. (Second Ed.), 929; Hunter v. Strider, 41 W. Va. 205. 321, 23 S. E. 567; Robinson v. 022 /dem, 207. 147 Parties § 90 for conformity. There are some exceptions to the general rule that apply to actions at law, as in ease the husband is convicted of a felony, etc. ; but there are others that exist solely in courts of equity. Thus, if a married woman claims some right in opposition to those of her husband, she may, by her next friend, maintain a suit against him; but this can only be with her consent. So the husband may sue the wife for the purpose of enforcing his marital rights against her property. And it has been held that a wife might sue her attorney who had collected her claim for alimony from her husband who had deserted her, and left the Commonwealth, without making her husband a party to the suit." ^" The same author says that a wife was, and now is, a feme sole as to her separate estate, and that to suits in regard to it the husband always was a proper and sometimes a necessary party.*^* But the learned author continuing says that "this subject is now provided for by statute in Virginia, and while the equitable separate estate is preserved with all the rules which relate to it, yet all personal and real estate owned by any woman marrying after the date of May 1, 1888, or all estate which any married woman has acquired since that date, con- stitutes her separate estate, and as to all such estate, and as to all matters relating to it, and as to all contracts made or incurred before her marriage, she may sue and be sued as if she were unmarried.*^^ § 90. Joinder of parties plaintiff. The general rule is, that several complainants having distinct and independent claims to relief against a defendant cannot join in a suit for the separate relief of each.^^'' Nor should par- 023 Idem, 204. Smoot, SI Va. 495 ; Murray v. Hay, «24 7(Zem. 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. «2S Idem, 204, 205. 773. See further as to joinder of hua- Striking employes whose names hand and wife in Virginia, post, are put by their employers on a 1 92. * blacklist which is sent to other 020 Snyder v. Cabell, 29 W. Va. 48, employers in the same city, with 1 S. E. 241; N. & W. R. R. Co. v. whom a combination has been made §90 Equity Procedure 148 ties having conflicting interests in the subject of litigation be joined as complainants in the suit.'^' But where the parties have a common interest to be promoted by suit, they may all unite therein as complainants.^^* Parties have a common inter- est so as to unite as plaintiffs in a suit to set aside fraudulent purchases of their goods, though different parcels of the goods were separately purchased from the plaintiffs respectively, the purchasers being insolvent and having bought the goods never intending to pay for them, and having fraudulently mortgaged the whole to other persons, who had conspired and colluded with by an agreement not to employ blackligted employes of other em- ployers, can not unite in an action against the employers; but, if any right of action exists, it is in favor of each one separately. Worthing- ton V. Waring, 157 Mass. 421, 20 L. R. A. 342, 32 N. E. 744. 62T Puterbaugh's Ch. PI. and Pr. (Third Ed.) 66. 628 Cohen v. Wolflf, 92 Ga. 199, 17 S. E. 1029; N. w. E. Co. v. Smoot, 81 Va. 495; De Louis v. Meek, 2 G. Greene (la.) 55, 50 Am. Dec. 491. In I>e Louis v. Meek, supra, the court, in considering the question of misjoinder raised in that case, says: "In the case of Grimes v. Wilson, 4 Blackf. 335, this matter is discussed, and the true principle presented. There the parties stood in no privity with each other; one was an infant and had a good case in equity ; the other had a distinct cause of action clearly cognizable at common law, showing no impedi- ment to his remedy there. There was no privity existing between them; their interests were separate; their demands independent. In such a case the bill would be dismissed in answer to the proper pleading. In the case at bar, although in the proceedings in partition, as set forth in the bill the condition of the com- plainants is shown to be, in some respects, different, their interests in the end sought by impeaching the judgment or decree of partition, is one and the same. The rights claimed by all the complainants are con- joined by the issue to be tried on the merits of the bill. The doctrine here asserted and adopted by this court is found in the case of Ballen- tine V. Beall, 3 Scam. 206, and Story's Eq. PI. 530, and notes 531, 532, 535; Varick v. Smith, 5 Paige 137 (28 Am. Dec. 417) ; Brinkerhoil V. Brown, 6 Johns. Ch. 150. We deem it imnecessnry to refer to fur- tlier authorities on this point, as Ave think the principle and practice on it well established. Where there is unity in interest, as to the object to be attained by the bill, as in this case, the parties seeking redress in chancery may join in the same com- plaint and maintain their action to- gether. In such case, it is within tlie province of a court of chancery to mete out to each and all of the complainants their »ights, on the principle of sound equity." 149 Parties § 90 them in the fraudulent . scheme by which the goods were ob- tained.*^' Several parties may .ioin as plaintiffs in a bill to set aside fraudulent conveyances made by their common debtor.*^" A large number of persons induced by identical fraudulent representations to become subscribers to a company may unite in one bill against such company and its officers and agents praying for the cancellation of their subscriptions.*'^ Judgment debtors who have a joint and common interest must unite in a bill for relief against the judgment, or if they can- not be joined, they must be made parties defendant."'^ The widow and heirs at law of a deceased mortgagor may join in a bill to redeem a mortgage.*'^ Two junior mortgagees inter- ested in the same mortgage may join in a bill to redeem from prior mortgagees.*'* Joint tenants, tenants in common touch- ing their common rights, and persons having a common interest in a trust fund in moieties, where redress is sought on account of the fund having been improperly dealt with, should join in the suit.*'^ Persons who have been induced by the same fraud- ulent misrepresentations to subscribe to the stock of a corpo- ration have a common interest and may join in a suit, for the benefit of themselves and others similarly deceived, to can- cel their subscriptions.*'* Two or more persons owning sepa- "TSvo persons are properly Joined ties." Lefever v. Thomas, 69 W. as plaintiffs in a bill in equity Va. 88, 70 S. E. 1095. when both are interested in the S29 Cohen v. Wolff, 92 Ga. 199, 17 property to be recovered, although S. E. 1029. their interests are not coextensive. 63o Bomar v. Means, 37 S. C. 520, * * * Administrator, who quali- 16 S. E. 537, 34 Am. St. Eep. 772; ties after filing of bill to recover de- White's Bank v. Earthing, 101 N. -cedent's property, may be brought Y. 344, 4 N. E. 734. in as eocomplainant therein by ssi Rader v. Bristol Land Co., 94 means of a supplemental bill for the Va. 766, 27 S. E. 590. grant of letters relates to the time 832 n Enc. PI. and Pr. 1173. of the death." Blackwell v. Black- 63' Butts v. Broughton, 72 Ala. well, 33 Ala. 57, 70 Am. Dec. 556. 294. "Where plaintiffs have a joint in- 634 Saunders v. Frost, 5 Pick. terest, or seek a common object by (Mass.) 259, 16 Am. Dec. 394. means of the suit, though they be 635 Story, Eq. PI., § 159. not united in interest with each «36 Boscher v. R. & H. Land Co., other, there is no misjoinder of par- 89 Va. 455, 16 S. E. 360. § 90 Equity Procedi he 150 rate and distinct tenements, whether they occupy the premises by themselves or by tenants, may, together with the tenants, where the tenements are lessened in value or made materially uncomfortable as homes by a nuisance, which is a common in- jury to all the tenements and their residents, join in a suit to restrain such nuisance.^^^ An administrator, in his individual capacity, as creditor of the estate, and as administrator, may sue to set aside a voluntary assignment of a chose in action by his decedent, as in fraud of creditors, especially where the bill also alleges that the assignment was not com- pleted.*'^ In a suit for the rescission or cancellation of a contract, the plaintiff must join with himself as plaintiffs all those who sus- tain the same relation to the contract that he does, and who are entitled to the same relief to which he is entitled, unless his amission to do so is founded upon proper ground duly alleged in the bill; and then such omitted party must be made a de- fendant.*'' It is settled by numerous decisions that creditors of a common debtor, although their claims are separate and distinct, may unite in a creditor's bill,**" or two or more may unite in such a bill.**^ And two or more wards may join as plaintiffs in a suit against their guardian and his sureties on the guardian's bond for an accounting and settlement of the guardian's accounts.**^ The executors of a decedent should unite as plaintiffs when all have qualified, but those renouncing the trust need not be ns7 Snyder v. Cabell, 29 W. Va. "inlTickling v. Wilson, 104 111. 4S, 1 S. E. 241; First Nat. Bank .54; Lontilhnn v. Moffat, 1 Edw. Ch. V. Sarles, 129 Ind. 201, 2S N. E. (X. Y.) 451, 6 N. Y. Ch. L. Ed. 200, 434, 2S Am. St. Rep. 185, 13 L. R. note; Dix v. Briggs, 9 Paige Ch. A. 4S1. (X. Y.) 595, 4 Law. Ed. 830, note; "38 Spoont-r V. Hilbish, 92 Va. 333, Bliiekett \ . Laimbeer, 1 Sandf. Ch. 23 S. S. 751. (X. Y.) 36(5, 7 N. Y. Ch. L. Ed. 362; 039 Godding v. Decker, 3 Colo. White's Bank v. Farthing, 101 N". Y. App. 198, 32 Pac. 832; Crittenden 344, 4 X. E. 734. V. Craig, 2 Bibb. (Ky.) 474; Salter "+i Dix v. Briggs, supia. V. Knieger, 65 Wis. 217, 26 X. W. >i" Jlutehcraft v. Shrout, 1 T. B. 544; Diokerson v. Wiiisbiw. 97 .Ala. Monroe (K.v.) 206, 15 \m. Dec. 100 491, 11 So. 918. 151 Pabties § 91 joined.^*^ If it be necessary to have those who renounce the trust before the court, they may be made defendants ; "" or if one who is a necessary party refuses to join as a plaintiff, he may be made a defendant, stating in the bill the fact of his refusal to be made a plaintiff.**^ But in "West Virginia, under the statute, if an unmarried woman be a personal representative, her marriage operates as an extinguishment of her authority, and the other personal representative may proceed as if she were dead, and, of course, may sue alone."* The law is other- wise now in Virginia, and the marriage of an unmarried per- sonal representative does not affect her representative rights.*'*'' § 91. Joinder of defendants. The rule applying here is, that all persons concerned in the subject matter of the suit may properly be joined as defend- ants, nor is it essential that all the parties shall have an inter- est in all the matters contained in the suit.**^ It is sufficient if each party is concerned in some of the matters involved in it, and they are connected with the others.*^^ Thus, where the principal in a note is properly sued in equity, his endorser,*^" 643 Rinehart v. Einehart, 15 K". defendant, and by inserting an alle- J. Eq. 44; Thompson v. Graham, 1 gation that he was unwilling and Paige Ch. (N. Y.) 384, 2 Law. Ed. would not consent to Join the suit 686. as a complainant. 64-t Idem. "If an executor or an administra- eirj Tooker v. Oakley, 10 Paige Ch. tor who is a necessary party to a (N. Y.) 288, 4 Law. Ed. 980. In suit in chancery refuses to join with this case it is decided : "Where two his coexecutors or administrators administrators filed a bill in the as a complainant in the suit, the name of themselves and of their co- proper course of the latter is to ■administrator, without the consent make him a defendant, stating the of the latter, and the defendant ap- fact in the bill that he refuses to plied to take the bill off the files jodn in the suit as a complainant.'' and to dissolve an injunction which sis w. Va. Code, 1913, c. 8.5, § 9. had been granted thereon, upon that 647 l Bart., Ch. Pr. (Second Kd.), ground, the court permitted the ad- 164, note 3; Va. Code, 1904, § 2644. ministrators' who filed the bill to 648 Walters v. Farmers' Bank of amend the same, without prejudice Virginia, 76 Va. 12, 16. to the injunction, by striking out '49 Idem. the name of their coadministrator «50 /(fern. s complainant and making him a § 91 Equity Procedure 152 or his surety/" may be joined as defendants in such suit. A bill against several purchasers of separate and distinct tracts of land conveyed by a husband during coverture, without the wife's relinquishment, may be maintained to recover dower, or the plaintiff may proceed against each separately.^^^ In the ease of a fraudulent assignment of a trust fund, a cestui que trust may, at his option, either proceed against the trustees alone, or join the fraudulent assignee in the same suit/^' In eases of fraud, the parties who have actively participated in its commission should be joined in the suit as defendants,'^* as well as those who own the property where suit has been brought for its recovery.*^^ Where rescission or cancellation of a deed on the ground of fraud on the part of the grantee is sought, his vendee with knowledge of the fraud may be joined in the suit.'^* In a suit to set aside fraudulent conveyances made by the debtor and grantor to different fraudulent grantees, the latter may be united as defendants in the same suit to set aside the deeds so far as the rights of the plaintiff are affected there- |jy_667 j^jj(j where the same persons are interested in the money or property which is the subject of the instruments of litiga- tion, they may be joined as parties to the suit.^^* It can be laid down as a general rule that wherever parties have a com- mon interest and a common defense, they may be joined as defendants in the same suit.^^' 651 Stovall V. Border Grange Bank, 79 ; Bank v. Pollock, 4 Edw. Ch. 78 Va. 188. (N. Y.) 215, 6 N. Y. Ch. L. Ed. 856; 052 Boyden v. Lancaster, 2 P. and Commonwealth v. Drake, 81 Va. 305; H. (Va.) 198. Almond v. Wilson, 75 Va. 613; 653 Bailey v. Inglee, 2 Paige Ch. Batchelder v. White, SO Va. 103. (N. Y".) 278, 2 X. Y. Ch. L. Ed. ess Reed v. Hedges, 16 W. Va. 167. 905. 659 Withers v. Sims, 80 Va. at p. 654 Alexander v. Davis, 42 W. Va. 657, citing Almond v. Wilson, 75 465, 26 S. E. 291. Va. 623; 2 Maddox Ch. 294. Also, 655 Idem, 684. see Coleman v. Claytor, 93 Va. 20, 056 Swihart v. Earless, 93 Wis. 24 S. E. 463. "It i^ immaterial 211, 67 N. W. 413; Silberherg v. that the interests of the defendants Pearson, 75 Tex. 287, 12 S. W. 850. are in conflict ^yith each other, or 65T Brinkerhoflf v. Brown, 6 Johns. that some of their claims are identi- Ch. (N. Y.) 139, 2 X. Y. Ch. L. Ed. cal with those of the plaintiff." 153 Parties § 93 § 92. Misjoinder of parties. A court of equity exercises a sound discretion upon the par- ticular circumstances of each case, in determining whether or not there is a misjoinder of parties;*"" but if there be a mis- joinder of a defendant, no one can take advantage of this except the party wrongly joined ; it cannot be objected to by a co-de- fendant who is properaly before the court."*' By virtue of statute in Virginia ""^ it is provided that "when- ever it shall appear in any action at law or suit in equity here- tofore or hereafter instituted by the pleadings or otherwise that there has been a misjoinder of parties, plaintiff or defend- ant, the court may order the action or suit to abate as to any party improperly joined and to proceed by or against the others as if such misjoinder had not been made."**' Under the statute of Virginia a husband can no longer join his wife in a suit affecting her separate property on the ground of the existence of the marital relation.*** § 93. Misjoinder of parties plaintiff. Where a party has the right to bring a suit in equity and accordingly brings such suit, the joinder of an improper party therein having no interest in the same, will not affect the right of the real party in interest to maintain the suit.**^ Where the plaintiffs have a joint interest,*** or where they seek a common object by means of a suit, though they are not united in interest with each other,**' there is no misjoinder of parties. Thus sev- Oampbell v. Shipman, 87 Va. 655, ses Beckwith \. Seeborn, 31 W. 659, 13 S. E. 114. Va. 1, 5 S. E. 453; McMillan v. 860 Snyder v. Cabell, 29 W. Va. Baxley, 112 X. C. 578, 16 S. E. 845; 48, 1 S. E. 241. 1 Whitehouse, Eq. Prac, § 77, pp. 661 Teal V. Chancellor, 117 Ala. 156-7, citing McConaughuy v. Ben- 612, 23 So. 651; Hawes, Parties to nett's Exors., 50 W. Va. 172, 40 S. Actions, § 101, and the numerous E. 540. cases there cited. 66c Sullivan v. Phillips, 110 Ind. 662 Va. Code, 1904, § 3258a. 320, 11 N. e. 300. 663 N. & W. E. Co. V. Dougherty, 6«' First Nat. Bank v. Sarles, 129 92 Va. 372, 23 S. E. 777. Ind. 201, 28 X. E. 434, 28 Am. St. e^ildem. Rep. 185, 13 L. R. A. 481; Shepard V. Manhattan Ey. Co., 117 N. Y. § 94 Equity Peoceduke 154 eral proprietors of distinct lands and of separate parts of a watercourse may unite as plaintiffs in a bill to enjoin its diversion."''^ Neither is there a misjoinder of parties where a person is administrator for a husband and wife, and it is doubt- ful whether the right to a fund is in the estate of the husband or wife, and he brings suit in both characters.^^^ Where parties having no right to relief are improperly joined with other parties plaintiff who have such right, the remedy of those entitled to maintain the suit is to amend the bill by strik- ing out the names of those who have no cause of action.*'" § 94. Misjoinder of parties defendant. Parties against whom distinct and independent claims for relief exist in favor of a person cannot be joined as defendants in one suit, and to do so would constitute a misjoinder of par- ties.*'^ Thus a claim against a firm and a separate claim against a member of the firm cannot be included in the same suit. To unite such defendants in the same suit constitutes a misjoinder of parties.*''^ So a person who, under an order of court, has made a deed of certain lands purchased at a judicial sale, and parted thereby with whatever interest he may have held in the land, is not a proper party to a suit by the purchaser to recover from the beneficiary of the sale the purchase price paid, and it 442, 23 X. E. 30; Eeid v. Gifford, James, 55 Ala. 533; Hardeman v. Hopkins Ch. (N. Y.) 416, 2 N. Y. Sims, 3 Ala. 747. "Too few parties Ch. L. Ed. 470; Lefever v. Thomas, may be fatal to a bill but never too 69 W. Va. 88, 70 S. E. 1095. many, and if from overeaution too oiis Reid v. Gifford, Hopkins Ch, many are joined, the mistake is (X. Y. ) 416, 2 X. Y. Ch. L. Ed. easily remedied at any stage of the 470; Belknap v. Trimble, 3 Paige proceedings." 1 Whitehousc, Eq. Ch. (N. Y.) 577, 3 X. Y. Ch. L. Ed. Prsc, § 77, p. 157. 281. 071 Murray v. Hay, 1 Barb. Ch. 009 Brent v. Washington, 18 Gratt. (N. Y.) 59, 5 N. Y. Cli. L. Ed. 299, (Va.) 526. 43 Am. Dee. 773; Snyder v. Cabell, oTo Lovelace v. Hutchinson, 106 29 W. Va. 48, 1 S. E. 241. Ala. 417, 17 So. 623, citing McLeod «" Winn v. Heidenheimer, 56 S. V. ilcLeod, 73 Ala. 45; Taylor v. W. (Tex.) 950; Harrell v. Davis, Robinson, 69 Ala. 269; liutton v. 108 Ga. 789, 33 S. E. 852. Williams, 60 Ala. 107; James v. 135 Parties §95 is a misjoinder to make him a party plaintiff with the pur- chaser."" § 95. How misjoinder of parties plaintiff availed of. As we have seen,^^* advantage can only be taken of the mis- joinder of a defendant by the party improperly joined; but as to the misjoinder of plaintiffs it is otherwise. Such a mis- joinder must be objected to by demurrer, if the defect is appar- ent on the face of the bill/'^ or by plea or answer, if- the defect does not so appear ; "'"' and unless so made, the objection will not avail at the hearing, if a decree can be rendered without preju- dice to the rights of the parties.^'' The defendant should promptly interpose his objection to a misjoinder of parties plaintiff, and not wait until depositions have been taken and costs have accrued."^* If, upon objection made to a misjoinder of parties, the objec- tion is sustained, the plaintiff may dismiss his suit and com- mence a new one in the name of proper parties,"'^ or he may 873Abernathy v. Phillips, 82 Va. 769, 1 S. E. 113. 674 Ante, § 92. 675 Snyder v. Cabell, 29 W. Va. 48 ; Vaiden v. Stubblefield, 28 Gratt. (Va.) 153. In Virginia, by virtue of statute, misjoinder of parties is not a proper ground of demurrer. Lee Y. Mutual, etc., Life Assn., 97 Va. 160, 33 S. E. 556. The remedy is to move the court to abate the suit as to those improperly joined. Riverside Cotton Mills v. Lanier, 102 Va. 148, 45 S. E. 875. 676 See same authorities. 677 Idem. As to misjoinder of plaintiffs. Green, J., in Hull v. Hull, 26 W. Va. 1, in the course of his opinion says: "The misjoinder of a plain- tiff might be fatal in a common-law suit; but it would not be fatal in a chancery cause, when he was, as in this case, a party, who on the face of the bill had no interest whatever in the cause. In such a case, though his name had not been stricken out as a plaintiff by an order of the circuit court, as it might have been, still on appeal it would not be ground for reversing any decree, which would have been proper, if such party having no interest in the cause had not been made a coplain- tiff. The making of such a person a party coplaintiff would not ren- der the bill multifarious. All that was said by him in the bill not bearing on the matter, in which re- lief was sought by the bill, would be treated by the appellate court as mere surplusage.'' 6T8 Mem. 679 Vaiden v, Stubblefield, 28 Gratt. (Va.) 153. [7] §96 Equity Peoceduee 156 amend his bill by striking out the names of those improperly joined, and make them defendants, if interested in the suit."" §96. How and when advantage taken of nonjoinder of parties. If all persons materially interested are not made parties to the suit, the defect may be raised by demurrer, if such defect appears on the face of the bill ; ^^^ but if it does not thus appear, the proper mode of taking advantage of it is by plea or an- swer. ^^^ So essential is it that all persons materially interested in the purposes of the suit should be made parties to it, that if objection is not made -by demurrer, plea or answer, advantage may generally be taken of the defect at the hearing **' or for the first time in the appellate court, if the defect appears from the face of the bill and its exhibits.**^ As to raising objections in an appellate court to the bill for lack of necessary parties, the rule is thus stated by Staples, J., «8o Idem. 081 Hill V. Proctor, lO W. Va. 59; Robinson v. Dix, 18 W. Va. 528; Mitchell V. Lenox, 2 Paige Ch. (N. Y.) 280, 2 N. Y. Ch. L. Ed. 907; Eobinson v. Smith, 3 Paige Ch. (N. Y.) 222, 24 Am. Dec. 212; Augir V. Warder, 68 W. Va. 752, 70 S. E. 719, 33 L. R. A. (X.S.) 69. But want of necessary parties must ap- pear on the face of the bill other- wise than by mere failure to nega- tive the existence of additional parties. Cartright v. Cartright, 70 W. Va. 507, 74 S. E. 655. «82 Mitchell V. Lenox, 2 Paige Ch. (N. Y.) 280, 2 N. Y. Ch. L. Ed. 907; Robinson v. Smith, 3 Paige Ch. (N. Y.', 22, ^4 Am. Dec. 212; May- nard v. Shein, 83 W. Va. 508, 98 S. E. 618. 683 Lynchburg Iron Co. v. Tayloe, 79 Va. 671; Cook v. Dorsey, 38 W. Va. 196, 18 S. E. 468; Bryan v. McCann, 55 W. Va. 372, 47 S. E. 143; Beckwith v. Laing, 66 W. Va. 246, 66 S. E. 354. «84 Lynchburg Iron Co. v. Tayloe, 79 Va. 671; Morgan v. Blatchley, 33 W. Va. 155, 10 S. E. 282; Hitch- cox V. Hitchcox, 39 W. Va. 607, 20 S. E. 595; Crickard v. Crouch, 41 W. Va. 503, 23 S. E. 727; Clayton v. Henley, 32 Gratt. (Va.) 65;Hinton V. Bland, 81 Va. 588; Jiloore v. .Jen- nings, 47 W. Va. 181, 34 S. E. 793; Ralphsnyder v. Titus, 63 W. Va. 469, 00 S. E. 494; Talbott v. Cur- tis, 65 W. Va. 132, 63 S. E. 877; Jeffries v. Jeffries, 123 Va. 147, 96 S. E. 197. The nonjoinder may ap- pear for the first time in the evi- dence. Beckwith v. Laing, 66 W. Va. 246, 66 S. E. 354. That parties are not necessary may also appear by the evidence. White v. White, 64 W. Va. 30, 60 S. E. 885. 157 Parties § 96 in Clayton v. Henley:"^ "When, however, the objection is delayed till the hearing in the appellate court — whether it will avail or not will depend much upon the circumstances. If the absent party has an interest in the subject matter of contro- versy, of such a nature that a final decree cannot be made with- out affecting that interest, the appellate court of its own motion, will direct that he be brought before the court, whether the objection was or was not made in the court below. If, on the other hand, the interests of the absent parties are separable from those of the parties before the court, so that the court can proceed to a final decree, and do eoinplete justice without affecting the absent parties, the latter are not regarded as indispensable. A defendant who claims that certain persons should be made parties to share a common burden ought to make the objection, as a general rule, in the pleadings; and if the objection be delayed until the case reaches the appellate court, that court will not require it unless it is clear that the absent party is likely to be prejudiced by the decree. "^^^ As an illustration of this rule reference is here made to Dower v. Church,^^* where there was a defect of parties. The court holds as a part of the law of the case, that where no objection is made to this in the court below till after the issue of devisavit vel non has been made up and tried and the jury has returned a verdict against the will, which has been probated, those claiming under the will cannot then be heard to object to the entering of a decree in accordance with the verdict, because the heirs had not been made parties. However it is suggested that where there is doubt as to whether certain persons are necessary parties to a suit, the safest course to pursue is to make such persons parties to the suit.*^' 685 32 Gratt. (Va.) 65, and noto 548. Objection can not be raised at p. 66, Annotated Ed. The rule for the first time in the Supreme as laid down by Judge Staples in Court when the omitted party was this cause is the correct one, and is substantially present. Armour Fer- supported bv the authorities. tilizer Works v. Taylor, 105 S. E. See also, Gerard v. Bates, 124 111. 574 (Va. 1920). 150, 16 N. E. 258; Bonsai v. Camp, ess 21 W. Va. 23. Ill Va. 595, 69 S. E. 978; Sweeney 687 Donahue v. Tackier, 21 W. Va. V. Foster, 112 Va. 499, 71 S. E. 124. § 97 Equity Procedure 158 While it is not necessary to specify the causes or grounds of demurrer,^^* still "a demurrer to a bill for want of parties should properly name the necessary parties defendant, who have been omitted so as to enable the plaintiff to amend his bill and call the attention of the court to this defect; and if it does not, the demurrant cannot complain that the demurrer is not sustained; but the court ought in the final hearing of the cause, though the demujrrer has been overruled, to decline to determine the cause on its merits, until the necessary parties defendant have been brought before the court by an amend- ment of the bill and have been given the opportunity to be heard. "««5 § 97. When bill should be dismissed for want of proper parties. On the hearing of a suit in equity, if it be made to appear that there is a defect of necessary parties, the bill ought not for that cause to be dismissed, but it should be sent back to rules with leave to the plaintiff to amend by making the proper parties thereto ; ^"' and if the decree is reversed in the appel- late court for lack of necessary parties, the bill will not be dismissed but the court will send the ease back to the court below with leave to make the necessary omitted parties.'^^ If after leave given to amend, the plaintiff declines to exercise this right, and chooses to stand. upon the sufficiency of his bill as to the question of the necessary parties thereto, then the court, of course, may dismiss the bill without prejudice. ^'^ 688 Cook V. Borsey, 38 W. Va. 19G, 231 ; MitclicU v. Cliancellor, 14 W. 18 S. E. 468; Dopiie v. Miller, 65 Va. 22. W. Va. 120, 64 S. E. 740, 23 L. R. , '"/^^ T!? ,'^- ?"'^''jf/'J^' \^^^^}: ' (Va.) 4; Mitcliell v. Cliancellor, 14 A. (N.S.) 775. ^ Ys.. 22; ITiimplirevs v. Hum- esoKobinson v. Dix, 18 W. Va. plireys, 31 W. Va. 561, 8 S. E. 2S3; 628. But the defect of non-joinder Mayiiard v. Slioin, 83 W. Va. 508, • J , , ., . • 98 S. E. 618; Moore v. Bolen, 104 IS never waived by failure to assign g ^ ^^^ ^^^ ^^ lfl20K it as a ground of demurrer, if the ' 692 Puterbaugh, Ch. PI. and Pr. omitted party is a necessary party. (Third Ed.), 67. Thompson v. Hern, 62 W. Va. 497, I" Hightower v. Thornton, 8 Ga. 59 S E 504 *^''' ^^ ■*™' ■^*'''- *^^' *^'"'P'^"'' "^■■ ■ • ■ in the course of his opinion Bays; 690 Key V. Hord, 4 Munf. (Va.) 485; Allen v. Smith, 1 Leigh (Va.) 159 Parties 98 § 98. How persons made parties to a suit. The plaintiff must be named in the bill, either in the cap- tion thereof, or in some clear and suiScient way, and show by proper averment his interest as a party in the suit.*'^^ In Cook V. Dorsey, cited in the footnotes, as to making defendants to a suit, Brannon, J., says: "No matter that the process names certain parties as defendants. The bill must have parties, for it is the basis on which the structure of the suit rests, and on which the matters of the suit become res judicata. A person may be named in and served with process, yet is not a party unless named in the bill; and not only named in it, but there must be allegations relating to him showing why he is a party, what matters touch and concern him, involved and to be decreed upon in the suit." '''* And the learned judge, speaking for the whole court, continuing, says: "This till, as the transcript shows, was dismissed for want of equity, and upon no other ground. It is obvious, therefore, that the question as to who are and who are not the proper parties to this proceeding, is one dehors the record. But suppose the motion had been to dismiss the bill for want of proper parties, Would the chancellor have granted it? Most assuredly not, provided the necessary parties could have been made, and leave would have been given to make new parties, either by an amendment or by a, supplemental bill. Story, Eq. PI., § 541. It is reported to have been said by Lord Hardwicke, in an anonymous case, 2 Atk. 15, and in Jones V. Jones, 3 Idem-, 111, that a bill in chancery is never dismissed for want of parties, but that it stands over on the payment of costs. Mem, note. And this, no doubt, is true, with this disqualification, pro- vided the necessary parties can be made; for, if it be apparent that this can not be done, and there can be no decree without them, as is sometimes the case, the bill, of course, must be dismissed." The plaintiff must bring in the omitted parties within a reasonable time after having been ordered so to do by the court. Bragg v. United Thacker Coal Co., 70 W. Va. 655, 74 S. E. 946. 693 Cook V. Dorsey, 38 W. Va. 196, 18 S. E. 468. •'9'' In support of the doctrine here announced the learned judge cites the following cases: Chapman v. Railroad Co., IS W. Va. 184; Mose- Icy V. Cocke, 7 Leigh (Va.) 224; McCoy V. Allen, 16 VV. Va. 724; Mc- Nutt V. Trogden, '2!) \V. Va. 471, 2 S. E. 328; Sliaffer v. Fetty, 30 W. Va. 24H, 4 S. E. 278; Bland v. Stewart, 35 W. Va. 513, 14 S. E. 215. See al.so Kanawha Valley Bank v. Wilson, 35 W. Va. 36, 13 S. E. 58; Johnson Milling Co. v. Read, 76 W. Va. 557, 85 S. E. 726; Roberts v. Huntington Development & Gas Co., 85 W. Va. 484, 102 S. E. 93. § 98 Equity Procedure 160 "And though a man be named in the bill simply in narration of its facts, and it contain matter touching him, and he is made a party in the process, yet, if he be not made a party to the bill, it would be bad, and the decree null. In other words, he must be a party to the process, a party to the bill, and the bill must allege matter touching him so far as it seeks to affect him. The observance of these fundamental rules is all-important in practice, as departure from them renders the decree not only erroneous, but generally void, as inspection of eases above cited will show." If the plaintiff has omitted a necessary or interested party from the suit, such person may apply to the court in which the suit is pending by motion or petition to be made a party to it,^^^ though it is said that a motion to be admitted as a defendant is not regular.^^^ But in case of an injunction, if it appear that the person making the motion is interested in the subject of controversy, the court will order the injunction to be dissolved, unless the plaintiff will amend his bill and make him a defendant."^' Be this as it may, it is usual to apply to the court by petition, and not by motion, to be made a party to the suit.^'* And though a party files his petition in a suit, to become a party thereto, and he is admitted to become such as a party defendant, he does not thereby become a party to the suit until he has been made such by proper allegations in the bill by way of amendment connecting him with the sub- 605 Xeale v. Ultz, 75 Va. 480; before the court, before there can be Piedmont and A. L. Ins. Co. v. an adjudication of the plaintiff's Maury, 75 Va. 508. rights. Tlie mere petition does not "Where a petition is filed in a, make the petitioner a party for the suit in equity Ijy one not a party to purposes of decree.'' Gall y. Gall, it, and whose rights are not men- 50 \V. Va. 523, 40 S. E. 380. tioned in the bill, and such peti- soe Harrison v. ^Morton, 4 H. and tion asks relief touching the sub- 51. (Va.) 483. ject matter of the bill, and such pe- oo^ Idem. tition discloses an interest in the oss Cleavenger v. Felton, 46 W. petitioner in such matter hostile to Va. 249, 33 S. E. 117-, Shinn v. the claim of the plaintiff, the plain- Board of Education, 39 W. Va. 497, tiff must file an amended bill to 20 S. E. 604. bring the petitioner and his claim 161 Parties § 98 ject matter of the suit.^'' But this rule "does not apply in a case where a party files his petition, making the parties to the suit parties to his petition, and setting up claim to the subject matter in controversy, when his petition can properly be treated as an original bill. "^'"' In West Virginia the principle has been strictly applied. "To a bill in chancery against one defendant she filed an answer, which showed that a third party ought to have been made a defendant. Such third party thereupon tendered his answer to the bill, waiving service of any process, which answer was filed by leave of the court on motion of such third party, but the original bill was not amended, and there were no alle- gations against this person, and no relief prayed against him, and no allusion whatever made to him in the bill ; subsequently evidence was taken which proved the interest of such third person in the suit. Held: The court had no jurisdiction over him, and he was no party to the suit, and a decree either for or against him is a mere nullity, and should, if brought before an appellate court, be reversed and set aside. "'"^ "Upon a bill in chancery against one defendant, on her filing an answer and stating facts which show that a third party ought to have 699 Cleavenger v. Felton, 46 W. merit in the contention that J. H. Va. 249, 33 S. E. 117. See also C. Epperson was not properly before Chapman v. Railroad Co., 18 W. Va. the court, and ought not to be bound 184; Shaffer v. Fetty, 30 W. Va. by the decree. It is true that his 248, 4 S. E. 278; McCoy v. Allen, name does not appear as a party to 16 W. Va. 724; Shinn v. Board of either bill, but he was a party to Education, 39 W. Va. 497, 20 S. E. the original transaction and is a, 604; Piedmont & Arlington L: Ins. necessary party to the litigation; Co. V. Maury, 75 Va. 508; Morgan and, on his own initiative, was ad- V. Blatchley, 33 W. Va. 155, 10 S. mitted as a party defendant, by be- E. 282; Gall v. Gall, 50 W. Va. ing permitted to file an answer and 523, 40 S. E. 380; Freeman v. Eg- litigate his rights. It is common nor, 72 W. Va. 830, 79 S. E. 824. practice for omitted parties to be ■""i Cleavenger v. Felton, 46 W. thus convened without formal Va. 249, 33 S. E. 117. amendment, and it is not perceived '"i Shaffer v. Fetty, 30 W. Va. that any injustice has been oeca- 248, 4 S. E. 278. But observe the sioned by that mode of procedure in language of the Virginia Supreme the present instance." Epperson v. Court of Appeals: "Xor is there Epperson, 108 Va. 471, 62 S. E. 344. § ]00 Equity Procedure 162 been made a defendant, the court simply orders this third per- son to be made a defendant, process issues against him and is served upon him ; but the original bill was not amended, and in it there were no allegations against this person, and no relief was prayed against him; evidence is taken to prove the facts alleged in the answer, which show the interest in the suit of this third person, and a commissioner of the court reports the facts to the court, after he had served a notice on this third person that the matter was before him and he wovild report thereon; this third person never appeared in the suit. Held: The court had no jurisdiction over him, and could in such case render no decree against him, and if it did so, such decree was a mere nullity. '""^ "Lack of necessary parties to one suit is not ordinarily cured by consolidation with it of another suit tp which the omitted persons are parties." '"^^ §99. How persons again made parties as to whom soiit has been discontinued. Parties as to whom the plaintiff has abated or dismissed his bill, can be again brought into the suit only by the issuance and service of process — not by an order rescinding the action of the court discontinuing the cause as to them.'"^ § 100. Unborn persons as parties to a suit. It sometimes occurs that property becomes the subject of litigation in which persons then unborn may become interested, such interest depending upon the contingency of their birth ; and inasmuch as all interests must be before the court, the court could not deal with the property in which such a con- tingent estate exists, unless this uncertain and contingent inter- est can in some way be treated as actually before the court. Hence, to relieve from this embarrassment, it is laid down that where an estate is vested in persons living subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate for all pur- 702 McCoy V. Allen, 16 W. Va. 724. 702a First Nat. Bank of Webster An abortive attempt to make neces- Springs v. McGraw, 85 W. Va. 298, sary parties to a suit can not be 101 S. B. 474. cured by dismissing the suit as to 703 Johnson v. Shepard, 35 Mich. such parties. O'Neal v. Stimson, 61 115. W. Va. 551, 56 S. E. 889. 163 Parties § 100 poses of any litigation in reference thereto, and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand, not only for themselves, but also for the persons unborn.'"'* This is a rule of convenience and almost of necessity-''^ So, under this principle, a person included in a class to whom property had been devised in remainder, but not in esse at the time a decree was rendered charging the entire fee with a lien, is bound by such decree.""' But to constitute one a party to a suit by representation, so as to affect his rights or bind his interests by the decree made in the cause, the party must be not in esse at the time of the suit.^"' In other words, members of a class cannot represent other living members of a class.'"* In order that a decree may be taken as to such unborn per- sons who are in contemplation of law before the court, under the doctrine of representation, where the proceeding is by vir- tue of statute, the requirements of the statute must be strictly complied with, in order fully to bind such unborn persons.'"' Thus, in a decree and sale in partition, in order to close contin- ue* Kent V. Church of St. Michael, gent remaindermen in fee in the 136 N. Y. 10, 32 N. E. 704, 32 Am. land, and an infant son of one of St. Rep. 693, 18 L. R. A. 331, citing the life tenants, who is of the same Calvert, Parties to Suits in Eq., 48; general class as the unborn children, Mitf. PI. 173; 2 Spence Eq. Jur., such parties sufficiently represent 707; 1 Smith Ch. Pr., 92; Story, Eq. and protect the interests of the con- Pi., §§ 144, 148; Wills v. Slade, 6 tingent remaindermen yet unborn." Ves. Jr., 498; Gaskell v. Gaskell, Geary v. Butts, 84 W. Va. .•?48, 9!) 6 Sim. 643; Nodine v. Greenfield, S. E. 492. 7 Paige (N. Y.) 544, 4 L. Ed. 267. 705 See same citations. See Gavin v. Curtin, 171 Jll. 640, 706 Harrison v. Walton, 95 Va. 49 N. E. 523, 40 L. R. A. 776; Harri- 721, 30 S. E. 372, 41 L. R. A. 703; eon v. Walton, 95 Va. 721, 41 L. R. McCampbell v. Mason, 1.51 111. 500, A. 703, 30 S. E. 372 ; Ammons v. 38 N. E. 672. See post, § 402, and Ammons, 50 W. Va. 390, 406, 40 S. authorities cited under note 25.'5. E. 490. 707 Williamson v. Jones, 39 W. Va, "Where the parties named in a, 239, 19 S. E. 436. suit to sell lands in which are con- 708 Idem. See the opinion of the tingent remainders in persons yet court in this case at p. 200. unborn include the trustee, represent- 709 Ammons v. Ammons, 50 \V. ing all interests, the life tenants Va. 390, 40 S. E. 490. whose unborn children are contin- §100 Equity Procedure 164 gent rights of persons not in being, the court must pro- vide for and protect such interests, by substituting the fund derived from the sale of the land in place of it, and preserving the fund to the extent necessary to satisfy such interest."" So, where contingent interests in lands of infants are sold, who are simply before the court by representation, the proceeds of the sale must be properly secured by the decree, in order that they may be bound thereby.'^^ ■'i* Ammons v. Ammons, 50 W. Va. 390, 40 S. E. 490, citing Mon- arque v. Monarque, 80 N. Y. 320. • '11 Ammons v. Ammons, 50 W. Va. 390, 40 S. E. 490. The court in Bofil v. Fisher, 3 Eichardso^'s Eq. (S. C.) 1, 55 Am. Dec. at page 631, which was a case for the sale of contingent interests in property arising under the terms and provisions of a will, says : "The rules of practice in this court as to parties are rules adopted for con- venience, and are oftentimes mat- ters of discretion. If all persons interested, who can be made parties, are brought before the court, it is sufficient. The court will go on and try the cause, though it should ap- pear that persons having more re- mote interests are not represented. But will the decree of the court conclude the rights of parties who are not before it? In some cases it will. In cases like the present it will. The court, by its decree, acts on the property and disposes of that; while the fund arising from the sale is to be managed under the direction of the court, in its ad- ministrative department. The rights of all the parties in interest will be transferred from the property to the fund, and will be protected by the court, so far as that is prac- ticable. Nevertheless, if by mal- administration, the faithlessness of the officers of the court, or by any of the untoward accidents of life the fund should be lost, the original rights of the parties to the prop- erty are not thereby revived, but they are concluded. The compensa- tion to thern is their interest in the fund arising from the sale, which the court always means to preserve, and to administer according to the scheme of settlement." CHAPTER IV THE BILL § 101. Origin and definition of a bill in equity. § 102. The diflerent.kinds of bills in equity. § 103. The ioTia and structure of the bill. — The address or direction thereof. § 104. The introduction or caption of the bill. § 105. The premises or stating part of the bill. § 106. The confederating part of the bill. § 107. The eliarging part of the bill. § 108. The jurisdiction clause of the bill. § 109. The interrogatory part of the bill. ' § 110. The prayer of the bill for relief. § 111. The prayer of the bill for process. § 112. The signing of the bill. § 113. When the bill should be under oath. § 114. The stating part of the bill further considered Matters which should be alleged therein. § 115. The stating part of the bill, further considered. — Matters which ought not to be alleged therein. § 116. What ihatter is scandalous or impertinent. § 117. How objections for scandal and impertinence are raised. § 118. Essential allegations of the bill in certain causes In matters of account. § 119. In matters of arbitration and award. § 120. In the matters of attachment. § 121. In the matter of the cancellation, reformation and rescission of written instruments. § 122. In the matter of the removal of cloud upon title to real estate. § 123. In the matter of creditors' bills. § 124. In the matter of divorce. § 125. In the matter of dower (assignment of). § 126. In matters requiring the doing of equity on the party ot the plaintiff as a condition to relief. § 127. In the matter of fraud generally. § 128. In the matter of fraudulent and voluntary conveyances. § 129. In matters of injunctions. § 130. In the matter of setting aside or impeaching judgments and decrees. § 131. In matters involving laches. 165 § 101 Equity Procedure 166 § 132. In the matter of the enforcement of liens. § 133. In the matter of lost iixstruments. § 134. In the matter of mistake. § 135. In matters of new trials. § 136. In matters of partition. § 137. In matters of partnership. § 138. In the matter of the specific performance of contracts. § 139. In the matter of suit by stockholders on behalf of the corporation. § 140. In the matter of surcharging and falsifying the accounts of fidu- ciaries. ' § 141. In the matter of trusts and trustees Appointment of a new trustee. § 142. In the matter of trusts and trustees. — ^The sale, mortgage, or lease of trust property. § 143. In the matter of trusts and trustees. — The investment of trust funds. § 144. In the matter of trusts and trustees An accounting by the trustee. § 145. In the matter of trusts and trustees. — Removal of trust funds to another state or country. § 146. In the matter of trusts and trustees The establishment and en- forcement of trusts. § 147. In the matter of trusts and trustees Controversies between trus- tees and their beneficiaries, and with third parties. § 148. In the matter of trusts and trustees. — The pursuit of trust funds or property. § 149. In matters of usury. § 150. In the matter of wills (contest of). § 151. The bill may be framed with a double aspect. § 152. The bill must not be multifarious. § 153. Illustrations of bills not multifarious. § 154. Illustrations of bills treated as multifarious. § 155. How defect of multifariousness is reached. § 156. The exhibits filed with the bill. § 101. Origin and definition of a bill in equity. While the procedure in a court of equity is now governed by a distinct and independent system peculiarly its own,^ it is borrowed to a great extent from the civil law and the canon law, as administered through the ecclesiastical courts of Eng- land; for, as stated by an able author of high scholarship, "the early chancellors were for the most part, if not altogether, ecclesiastics, and many of them were bred up in the jurispru- 1 Story, Eq. PI., § 14 ; Langdell, Eq. PI., 1 et seq. 167 The Bill § 101 denee of the civil and canon law ; and it was natural for them, in the administration of their judicial functions in the court of chancery, to transfer into that court the modes of proceed- ing with which they were most familiar. Hence, almost at every step, we may now trace coincidences between the plead- ings and practice in chancery, and the pleadings and practice in a Roman suit and an ecclesiastical suit. ' ' ^ But our pro- cedure by bill in equity is taken directly from the practice in the English court of chancery, which was conducted by means of what is known as a bill,^ or an English bill,^ which may be defined to be an application by a private party to a court of equity for the redress of a grievance not cognizable in a court of law, preferring such application by means of a written statement of his case, in the nature of a petition, in which are set forth the material facts upon which his claim for relief is founded, concluding such statement with a prayer for the relief sought and usually for process as to the parties against whom relief is asked to bring them before the court to make due answer in the premises.^ If the application is made by or on behalf of the government or public generally, it is usually termed an information.*' In our practice such an application would be by bill in equity in the nature of an information by the state or a municipality, through its proper law officer, as for instance, the attorney general or other appropriate officer ; ' but if such officer should decline to act, there are not wanting well considered cases holding that a private citizen may do so.^ 2 Story, Eq. PI., § 14. Cunningham, 83 Wis. 90, 53 N. W. 3 1 Daniell, Ch. Pr. ( Fourth Am. 35, 17 L. R. A. 145, 35 Am. St. Rep. Ed.), 305. 27. But in proper case the state * Story, Eq. PI., § 7. may proceed by bill in its own name. 5 Idem. State v. Bowen, 38 W. Va. 91, 18 6 Idem; 1 Daniell, Ch. Pr., 305. S. E. 375. 7 State, ex rel. McCain, v. Met- » State, ecD rel. Lamb, v. Cunning- sehen, 32 Or. 372, 46 Pae. 791, 41 ham, 83 Wis. 90, 53 N. W. 35, 17 L. R. A. 692; State v. Lord, 20 Or. L. R. A. 145, 35 Am. St. Rep. 27; 498, 43 Pac. 471, 31 L. R. A. 473; People v. Rice, 135 N. Y. 473, 16 Welch V. Fisk, 139 Ind. 637, 38 N. L. R. A. 836. B. 403; State, ex rel. Lamb, v. § 102 Equity Procedure 168 § 102. The different kinds of bills in equity. Bills in equity are divided into those that are original and those that are not original.' "Original bills are those which relate to some matter, not before litigated in the court by the same persons, standing in the same interests. Bills not original are those which relate to some matter already litigated in the court by the same persons, and which are either an addition to, or a continuance of an original bill, or both."^" Original bills are subdivided into those which pray for relief and those which do not pray for relief.^^ In a general sense, all bills may be said to be bills for relief, as they seek the action of the court in the form of an order or decree, to remedy some exist- ing or apprehended wrong or injury.^^ But as understood and used by a court of equity, bills for relief only include those which seek, in the particular suit, a decision upon the whole merits of the case set forth by the plaintiff, and a decree which shall ascertain and protect present rights or redress present wrongs." "All other bills which merely ask the aid of the court against possible future injury, or to support or defend a suit in another court of ordinary jurisdiction, are deemed bills not for relief."" Original bills praying for relief are themselves subdivided into three classes : ^^ 1. Bills praying the decree of the court touching some right claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited, or touching some wrong done in violation of the plaintiff's rights.^^ This is the most common kind and the one generally involved in the business of the court." 2. "Bills of interpleader, where the person exhibiting the bill claims no sPuterbaugh, Ch. PI. and Pr. t-s Idem. (Third Ed.), 41; Story, Eq. PI., a Mem. §16; 1 Daniell Ch. Pr. (Fourth ^r. idem, §1S; 1 Daniell, Ch. Pr., Am. Ed.), 305. 306. 10 Story, Eq. PI., §16. is/rfem. 11 Story, Eq. PI., § 17. " Idem; Puterbaugh, Ch. PI. and 12 Idem. Pr., 42. 169 The Bill § 102 right in opposition to the rights claimed by the person against whom the bill is exhibited, but prays the decree of the court, touching the rights of those persons, for the safety of the per- son exhibiting the bill."" 3. "Bills of certiorari, which pray a writ of certiorari, in order to remove a cause from an inferior court of equity, for the purpose of having it further proceeded in, and decided in the superior court of equity, to which the process is returnable. ' ' " This last bill is rarely, if ever, used in the United States,^'' and we may conclude that it has become obsolete both here and in England. Original bills not praying relief are of two kinds: 1. Bills to perpetuate the testimony of witnesses, or to examine them de iene esse, but which have almost gone into disuse by reason of the simpler statutory methods of reaching the same ends. 2. Bills of discovery.^^ Bills not original are either (1) an addition to or continuance of an original bill; or (2) they are for the purpose of cross- litigation, or of controverting, suspending, or reversing some decree or order of the court, or carrying it into execution. ^^ Under class (1) may be placed supplemental and amended bills; bills of revivor, and bills both of revivor and supple- ment. Under class (2) may be placed cross-bills, bills of re- view, bills to impeach decrees on the ground of fraud, bills to suspend the operation of decrees, or to avoid them for matter arising since the rendition, bills to carry decrees made in former suits into execution ; and, lastly, bills partaking of the qualities of some one or more of these bills, such as bills in the nature of bills of revivor, bills in the nature of supplemental bills, bills in the nature of bills of review, and others of a like character.^^ The division of bills as here given, is the one found in the great majority of works treating on the subject of equity plead- 18 story, Eq. PI., §18. "Story, Eq. PI., §19; 1 DanieU, 19 Idem. Ch. Pr., 306. 20 Idem, § 298; 1 Beach, Mod. Eq. 22 Story, Eq. Pi., § 20. Pr., 151. 23 Story, Eq. PI., § 21. § 103 Equity Procedure 170 ing and practice, but the simplicity of modern equity procedure renders this classification of bills comparatively unimportant,^* as the real nature of a bill is to be determined by its allegations and purposes, rather than from the title which the pleader has given it ; ^^ and though a wrong name has been given to it, still, if its allegations show a ground of relief and its prayer will support the proper decree, the court will sustain the bill upon its merits.^* § 103. The form and structure of the bill — The address or direction thereof. In treating of the form and structure of a bill, we will con- sider the original bill for relief in equity, the one ordinarily used in practice. The bill usually begins with what is known as the address or direction to the court from which relief is sought.^' In West Virginia the frame of the bill may follow that pre- scribed by statute,^* or the one prescribed by the general chan- cery practice. In the fbrmer case, no address or direction of the bill is required, as the court of the county in which relief is sought is stated in the caption of the bill together with the names of the parties thereto, plaintiffs and defendants.^' ■ Un- der the general modern equity procedure, it is usual to formu- late the direction of the bill by addressing it to the judge of the court of the county and state wherein suit is brought and 24 1 Daniell, Ch. Pr., 306. Va. 404, 412; Pethtel v. McCul- 25^0! parte Smith, 34 Ala. 457; lough, 49 W. Va. 520, 39 S. E. 199; Eidgely v. Bond, 18 Md. 433 ; Moore Mankin v. Dickinson, 76 W. Va. V. Harper, 27 W. Va. at p. 368; 128, 85 S. E. 74, Ann. Cas. 1917D, Sturm V. Fleming, 22 W. Va. 404; 120, and eases cited. Post, §924. Skaggs V. Mann, 46 W. Va. 209, 33 27 Story, Eq. PI., § 26; 1 Daniell, S. E. 110; Columbia Finance & Ch. PI. and Pr. 357; Puterbaugh, Trust Co. V. Fierbaugh, 59 W. Va. Ch. PI. and Pr., 43; Barton, Ch. 334, 53 S. E. 468; Jones v. Crim, Pr., 257. 66 W. Va. 301, 66 S. E. 367. =8 Cook v. Dorsey, 38 W. Va. 196, 28 Martin v. Smith, 25 W. Va. at 18 S. E. 468. p. 583; Hill V. Bow7er, 18 Gratt. 2" W. Va. Code, 1913, c. 125, §37 (Va.) 364; Sturm v. Fleming, 22 W. 171 The Bill § 105 in which the bill is to be filed, and this is treated as sufficient in all cases.'" § 104. The introduction or caption of the bill. After the address follows the introduction,'^ in the Virgin- ias, and according to modern practice generally, usually called the caption of the bill.'^ The caption generally contains the names of the plaintiffs and defendants, not the mere initials thereof, the character in which they sue or are sued,'' and in the federal courts, in addition thereto, the place of abode and citizenship of all the parties by and against whom the bill is exhibited must be therein set forth.'* The various forms of an introduction or caption, according to the peculiar requirements of the case, are given elsewhere in this work.'^ As to how persons may be made parties to a suit see a former part of this work.'^ § 105. The premises or stating part of the bill. The third part of the bill is the premises, more commonly called the stating part," which contains a statement of the facts and circumstances of the plaintiff's ease, or the wrongs and grievances of which he complains, the names of the persons against whom he seeks relief, and the manner in which they are interested in or connected with the cause.'* The premises soDulaney v. Jennings, 1 Har. Dorsey, 38 W. Va. 196, 18 S. E. and McH. (Md.) 92; Gibson's Suits 468. in Ch., §186; 1 Daniell, Ch. PI. 33 Pennington v. Hanby, 4 Munf. and Pr., 357, note 1; 1 Bart., Ch. (Va.) 144; Capehart v. Hale, 6 W. Pr., 257. For some forms of ad- Va. 547 ; Cook v. Dorsey, 38 W. Va. dresses of the bill see Amiss v. Mc- 196, 18 S. E. 468; Slingluff v. Ginnis, 12 W. Va. 376; Davis v. Gainer, 49 W. Va. 7, 37 S. E. 771. Landeraft, 10 W. Va. 722; Jones V. 34 Puterbaugh, Ch. PL and Pr. Patton, 10 W. Va. 654. (Third Ed.), 44; 3 Deaty, Fed. 31 Story, Eq. PI., §26; Puter- Proc, 1727. baugh, Ch. PI. and Pr. (Third Ed.), 35 Post, §§ 906, 907. 43. 36 Ante, § 98. 32 3 Enc. Forms, 418, note, et seq.; 37 Story, Eq. PI., § 27. Idem, 441, note, 443, note; Cook v. 38 i Daniell, Ch. PI. and Pr., 465; Story, Eq. PL, § 27. § 106 Equity Procedure 172 constitute the real substance and most important part of the bill/' and should contain every material fact of the case, and every such fact should be stated with distinctness, positiveness and certainty.'"' Uncertainty in a bill, according to an author of high repute, may arise in various ways:^^ (1) "The ease intended to be made by the bill may be vague and uncertain. (2) The case intended to be made may be certain ; but the allegations of the bill may be so vague and general, as to draw with them the consequences and mischiefs of uncertainty in pleadings. (3) Some of the material facts may be stated with sufficient cer- tainty, and others again with so much indistinctness or incom- pleteness, as to their nature, extent, date, or other essential requisites (as, for example, in stating the title of the plaintiff) as to render inert or inefficient those with which they are con- nected, or upon which they depend. In each of these cases, the defect may be fatal to the ob.jects of the bill; or, if not fatal, it may greatly embarrass the party in the mode of redress, or in the extent of the discovery, or in the application of the evi- dence. ' ' § 106. The confederating part of the bill. The fourth part of the bill is the confederating part, and though formerly often inserted therein, ^^ j^ jjj^y ^,g^ jj^jj usually is, treated as mere surplusage.^^ It contains a general allega- tion or general charge of a confederacy between the defendant and other persons to injure or defraud the plaintiff." It is s^Idem. "Story, Eq. PI. (Ninth Ed.), *o Story, Eq. PI., §27; Shipman, §242. Eq. PI., 186; Seals v. Eotinson & •'-Adams v. Porter, 1 Cush. Co., 75 Ala. 363; West v. Reynolds, (Mass.) 170. 35 Fla. 317; Short v. Kieffer, 142 43 Story, Eq. PI., §29; Shipman, 111. 258, 31 N". E. 427; Campbell Eq. PI., 205. V. Powers, 139 111. 128, 28 N. E. i*Iclem. "The usual form of the 1062; Campbell v. Lynch, 6 W. Va. charge is, that the defendants, com- 17; Gardner v. Landcraft, 6 W. Va. bining and confederating together, 36; Hyre v. Lambert, 37 W. Va. and with divers other persons as 26, 16 S. E. 446. 173 The Bill §107 well settled that its use in a bill is not necessary,*' unless, it is said, combination or confederacy is meant to be relied upon as a ground of equitable jurisdiction in some special cases, and there it must be specially charged, to authorize an assumption of jurisdiction.''^ This part of the bill may be omitted in the federal courts at the option of the plaintiff.*' § 107. The charging part of the bill. The fifth formal part of a bill is called the charging part thereof,*^ which "usually consists of some allegation or allega- tions, which set forth the matters of defense, or excuse, which it is supposed the defendant intends, or pretends to set up, to justify his non-compliance with the plaintiff's right or claim; and then charges other matters, which disprove or avoid the supposed defense or excuse."*' This part of the bill is not one of its essential requisites,'" and hence may be omitted.'^ yet to the plaintiff unknown, but whose names when discovered, he prays may be inserted in the bill, and they be made parties defend- ants thereto, with proper and apt words to charge them with the premises, in order to injure and oppress the plaintiff in the prem- ises, do absolutely refuse, etc., or pretend, etc. The practice of in- serting this charge is said to have arisen from an idea, that, without it, parties could not be added to the bill by amendment; and in some cases, perhaps, it was inserted with a view to sustain the jurisdiction of the court. But in either view it is wholly unnecessary. In the first place, it was never true at any time, that new parties might not have been added by amendment after the filing of the bill. In the next place, the mere allegation of combination or confederacy of the defendants, simply as such, could never alone have been a just foundation for the jurisdiction of a court of equity in the absence of all other proper mat- ter to sustain it." Story, Eq. PI., §29. « Story, Eq. PI., §29; Shipman, Eq. PL, 205 ; 1 Dan. Ch. 483 ; Lang., Eq. PI., §55; Marshall v. Rench, 3 Del. Ch. 239; Puterbaugh, Ch. PI. and Pr. (Third Ed.), 55. « Story, Eq. PI., § 30; Shipman, Eq. PL, 205; Min. Inst., vol. 4, pt 2, p. 1239. *'3 Desty, Fed. Proc. (Ninth Ed.), 1728. 48 Story, Eq. PL, §31; Shipman, Eq. PL, 205. 48 Story, Eq. PL, §31; Puter- baugh, Ch. PI. and Pr. (Third Ed.), 55. 50 Idem. 513 Desty, Fed. Proc. (Ninth Ed.), 1728. § 108 Equity Procedure 174 However, it may sometimes be used to the practical advantage or benefit of the plaintiff, as where he reasonably foresees the defense that may be interposed to the bill and which he could meet by an amendment thereof,^^ but in thus stating the defense and alleging facts in the charging part of the bill which will avoid its effect, the delay incident to an amendment may be obviated, a situation which he could formerly meet by a special replica- tion,^' which has now become obsolete and is no longer permis- sible.^^ So if the plaintiff desires to probe the conscience of the defendant by calling for an answer as to anticipated grounds of defense, he may set out the evidentiary matters in the form of detailed averments, and call upon the defendant to answer them, thus avoiding" the necessity of proof as to so much of such matters of interrogation as may be admitted by the defend- ant.^^ While there are some authorities against the principle, it can be laid down as the present practice in courts of equity to permit the charging part of the bill to be included in its stating part, and thus framed the bill will not be bad on demurrer.^^ As a further illustration of the practical use of the charging part of the bill, a statement of facts avoiding the operation of the statute of limitations may be instanced. As lapse of time may now generally be availed of on demurrer by way of defense,^' it is advisable to include in the charge of the bill the allegations relied on to take the case out of the opera- tion of the statute of limitations.^* § 108. The jurisdiction clause of the bill. The mere formal analysis of a bill gives it a sixth part called the jurisdiction clause.^' This clause is intended to give the 5= Post, § 479. " Post, § 327 ; Adams, Eq. ( Eighth 03 1 Daniell, Ch. Pr., 373. Ed.), 303, note. Hi Post, §476. 58 Adams, Eq. (Eighth Ed.), 303, "5 Shipman, Eq. PI., 206. note 1, •■•■o Shipman, Eq. PI., 209 and the ■•« Story, Eq. PI., § 34 ; Shipman, authorities there cited; Story, Eq. Eq. PI., 211; Puterbaugh, Ch. PI. PI. (Ninth Ed.), §32. and Pr. (Third Ed.), 56. 175 The Bill § 109 court jurisdiction of the cause by a general averment that the acts complained of are contrary to equity, and tend to the injury of the plaintiff, and that he has no remedy, or not a complete remedy, without the assistance of a court of equity."" But this clause is wholly unnecessary," and its use is at the option of the plaintiff."^ As the case made by the averments of the bill must show ground of equitable jurisdiction independ- ently of the use of this clause, its use is a mere superfluity."' To entitle a defendant to relief in equity, it devolves upon him to show by the averments of his bill, not only that he has a valid claim or defense, but also that it is such that he can not avail himself of it fully at law; or if it be a legal defense, that he was prevented from making it at law by fraud, acci- dent or some adventitious cause unmixed with laches or neglect on his part."^ § 109. The interrogatory part of the bill. The seventh or interrogating part of the bill prays that the parties complained of may answer all the matters contained in the former parts of the bill, not only according to their knowl- edge, but also according to their information, remembrance and belief."^ The general interrogatory in a bill is sufficient to entitle a party to a full answer to all the matters stated in it."" Thus a demand made in the bill that "the plaintiff calls upon the defendant to answer the same as specifically as if each allegation were the subject of special interrogatory" is suffi- cient to require a full answer to the bill."'' But where the prac- tice authorizes a decree pro confesso upon the allegations of 60 Jrfem. (Va.) 506; 1 Whitehouse, Eq. Prac, 61 Idem. 172 et seq. «2Weni. 65 story, Eq. PI., §35; Shipman, esJdem; 1 Whitehouae, Eq. Prac, Eq. PI., 212; Piiterbaugh, Ch. PI. 160, note 6. and Pr. (Third Ed.), 57. 6* Evans v. Taylor, 28 W. Va. ee Idem. in the opinion of the court at page «t Morrison v. Grubb, 23 Gratt, 187, citing Shields v. McClung, 6 W. (Va.) 342, 347. Va. 79; Meem v. Eucker, 10 Gratt. § 109 Equity Procedure 176 the bill that are not denied by answer/' no good purpose is served by the use of the general interrogatory in the bill, as in such ease the plaintiff obtains the relief sought without the defendant's answer, and the failure of the defendant to answer operates to his own detriment, so that there is every incentive and reason for the defendant to answer, without demand upon him to that end by means of a general interrogatory. A .decree on the bill taken for confessed, or a decree pro con- fesso, may be rendered where the defendant, being properly served with process, does not appear and file his plea or an answer, which puts in issue the allegations of the bill, upon which the grounds of the plaintiff's right to a decree are essen- tially founded/' But if the plaintiff desires to obtain a discovery as to the matters, or any of them, set out in the bill, he may propound special interrogatories to the defendant or defendants from whom he seeks a discovery, and in this manner make them serve a useful purpose in the cause, by sifting the conscience of the defendant, as to certain facts, dates, names, amounts and other particular matters.'" In the federal courts special interrogatories may be pro- pounded by the plaintiff, if he so desires, to obtain a discovery,'^ but the interrogatories which the defendants, or any of them, are required to answer must be consecutively numbered 1, 2, 3, etc., and specified in a note at the foot of the bill.'^ All interrogatories must be based upon proper and sufficient prior allegations contained in the bill, and no interrogatory can be properly propounded unless predicated upon such prior 68 Snyder v. Martin, 17 W. Va. 792. See post, §§610-17, as to all 276, 41 Am. Kep. 670; Camden v. tte essential requisites of a decree Ferrell, 50 W. Va. 119, 40 S. E. pro confesso. 368. "Story, Eq. PI., §38; Puter- 119 Bock V. Bock, 24 W. Va. 586; baugh, Ch. PI. and Pr. (Third Ed.) Hunter v. Kennedy, 20 W. Va. 343; 57. Steenrod v. Wheeling, etc., R. Co., 'i Shipman, Eq. PI., 218. 25 W. Va. 133; Katzenstein v. t^ Idem. Prager, 67 W. Va. 343, 67 S. E. 177 The Bill § 110 allegations," and if propounded without being so supported, the defendant is not compelled to answer it." For forms of special interrogatories see another part of this work.'^ § 110. The prayer of the bill for relief. The eighth part of the bill is the prayer for relief,''^ and so ■essential is this part of the bill that no relief can be granted when it contains no prayer for relief.''' In Virginia it has been decided that if the bill makes out a ease for relief and contains no prayer for specific or general relief, it is suffi- cient, if no objection be taken by the defendant, and he answers on the merits of the complaint and submits himself to the decree of the court.'^ In other jurisdictions a contrary doe- trine is laid down : that no decree can be rendered for the plain- tiff, unless the bill contains a prayer for relief.'' It will not, however, from this be concluded that such a practice is encour- aged, or even obtains to any appreciable extent, iu that state. On the contrary, the importance of the insertion of a prayer for the specific relief demanded by the bill, and the general prayer for such other and further relief as the premises may authorize, is recognized by eminent law writers of that state,*" and repeated decisions of its courts. ^^ 73 Mem; Story, Kq. PI., §36; 79 Driver v. Fortner, 5 Porter Puterbaugh, Ch. PL and Pr. (Third (;^la.) 9: Lewis v. James, 8 Humph, -c,, , -7 -^ • n 11- T, n (Tenn. 541; Martm V. Kester, 46 Ed.), 57; Davis v. Collier, 13 Ga. „.^ ya. 438, 33 S. E. 238; Dudley 485; Mechanics' Bank v. Lynn, 1 v. Biicklev, 68 W. Va. 630, 70 S. Pet. (U. S.) 376, 13 L. Ed. 185; E. 376. Miller v. Saunders, 17 Ga. 92. "O 1 Bart., Ch. Pr. (Second Ed.), ,4 jrJpm 281 : 4 Minor, Insts. P. II, pp. 1124, n-2r,- 2 Rob., Pr. (First Ed.), 291 et seq. 75 Post, § 950. 76 Story, Eq. PI., §40; Shipman, si Sheppard v. Starke 3 Munf. Eq. PI., 220; Puterbaugh, Ch. PI. (Va.) 29; Beall v. Silver, 2 Kand. and Pr. (Third Ed.), 58. (Va.) 401; Rootes v. Holliday, 6 ■nidem: Driver v. Fortner, 5 Por- ^'^™^- (Va.) 251; Johnson v. j'ohn- , ,,, > n T^ n • 1. on *'<'"' ^ Munf. Va. 5.54 and note; ter (Ala.) 9; Dews. v. Cornish, 20 .jamea v. Bird, 8 Leigh (Va.) 513, Ark. 336; Perry v. Perry, 65 Me. 31 Am. Dec. 668; Steinman v! 401; Eaton v. Breathitt, 8 Humph. Clinchfield Coal Corp., 121 Va. 546, (Tenn.) 536. ^^ S. E. 642. 78 Smith V. Smith, 4 Rand. (Va.) »5. §110 Equity Procedure 178 The prayer for relief is either for special or general relief.'- The prayer for special relief points out and asks the court to grant the plaintiff the particular relief to which he thinks him- self entitled in the cause as set forth in his bill and has been held essential.^^ The prayer for general relief asks in general terms for such relief in the premises as to equity shall seem meet.** It is usual for the plaintiff to insert a prayer in his bill for the special relief which he seeks to obtain by his suit,*' and then to conclude with a prayer for general relief.*" The latter can never be safely omitted ; *' because if the plaintiff should mistake the relief to which he believes himself entitled in his special prayer, the court may still grant him the relief to which the pleadings and proof show he has a right, under the prayer for general relief,^* provided the relief so granted be not inconsistent with the claim made by the plaintiff or that put in issue by his bill.*' There are some eases where the relief sought can only be granted under the prayer for special 82 Story, Eq. PI., §40; Shipraan, Eq. PL, 225; Puterbaugh, Ch. PI. and Pr. (Third Ed.), 59. ssShipman, Eq. PI., 220. "Gen- eral relief can be given against those only as to whom special re- lief is sought." Milling Co. v. Read, 76 W. Va. 557, 560, 85 S. E. 726. See 1 Whitehouse, Eq. Prac, § 119. 84 Idem. 85 Story, Eq. PI., § 40 ; Vance Shoe Co. V. Haught, 41 W. Va. 275, 23 S. E. 553. 80 Vance Shoe Co. v. Ilaught, 41 W. Va. 275, 23 S. E. 553. 87 Idem; Woolfollc v. Graves, 113 Va. 182, 69 S. E. 1039; Story, Eq. PI., §40; Steinman v. Clinchfield Coal Corp., 121 Va. 546, 93 S. E. 642. 88 Hall v. Pierce, 4 W. Va. 107; Brown v. Wylie, 2 W. Va. 502, 98 Am. Dec. 781 ; Rust v. Rust, 17 W. Va. 901; Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553; Woods V. Fisher, 3 W. Va. 536; James v. Bird, 8 Leigh (Va.) 513, 31 Am. Dec. 668; Sheppard v. Starke, 3 Munf. (Va.) 29; Wallcer v. Con- verse, 148 111. 622, 36 N. E. 202; Davidson v. Burke, 143 111. 139, 32 N. E. 5il4, 36 Am. St. Rep. 367; Custer V. Hall, 71 W. Va. 119, 76 S. E. 183; Hogan v. Ward, 106 S. E. 232 (W. Va. 1921). SSPiercy v. Beckett, 15 W. Va. 444; Pickens v. Knisely, 29 W. Va. 1, 11 S. E. 932, 6 Am. St. Rep. 622; Billingslcy v. Jlenear, 44 W. Va. 651, 30 S. E. 61; Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553; Milling Co. v. Read, 7o W. Va. 557, 85 S. E. 726. A prayer for general relief does not dispense with the necessity for proper allega- tions in the bill. Waldron v. Har- vey, 54 W. Va. 608, 46 S. E. 603, 102 Am. St. Rep. 959. 179 The Bill §110 relief,'" as where the bill seeks the appointment of a special receiver,'^ or the issuance of an injunction.'^ But where the bill asks certain specific relief and contains no prayer for gen- eral relief, no other than such specific relief can be granted." If it contains a prayer both for specific and general relief, not only may the specific relief asked be given, but any fur- ther relief warranted by the allegations of the bill, so it be not inconsistent with the specific relief asked.'* By reason of this well-settled principle of equity pleading it is advisable to frame the prayer for special relief in the alternative, to have either one relief or the other as the court may determine.'^ But the matters thus prayed must' not be mutually repugnant on the basis of facts.'^ In some jurisdictions, however, when the bill contains a special and general prayer for relief, any relief may be granted which the facts alleged and proved will justify, although inconsistent with the specific relief asked in the bill.'' Bills for relief may also contain prayers for the discovery of facts which are essential to the relief prayed in the bill.'* And if the bill be taken for confessed, the defendant may be attached, or an order may be issued to have him brought into court, to compel an answer to the prayers for discovery." so Wilson V. Maddox, 46 W. Va. sis Brown v. Wylie, 2 W. Va. 502; fi41, 33 SE. 775; Willett v. Wood- ZHl Guano Co. v. Heatherly, 38 W. liams, 1 111. Ann. 413. ,. ,.„ ,„ o t^ on ^ j- n, TT'-, ir , \''- -409, 18 S. E. 611; Gooding v. 641 33 s""e'-7?5"'""' '' ^- """ H'ley, 50 N. H. 400; Baker v. Berry »2 Willett V. Woodhams, 1 111 Hill Co., 109 Va. 776, 65 S. E. 656. App. 413. "" Bynum v. Ewart, 90 Tenn. 655, 93Goff V. Price, 42 W. Va. 384. 18 S. W. 394; Zell Guano Co. v. 26 S. E. 287; Vance Shoe Co. v. Heatherly, 38 W. Va. 409, 18 S. E. Haught, 41 W. Va. 275, 23 S. E. fill .553 „■ ,. ^, ^ „ o^Dease v. Moody, 31 Mi«s. 617; advance Shoe Co. v. Haught, 41 t^ , -^ L t,,. ^th W. Va. 275, 23 S. E. 553; Brown °°'^Se v. Evans, 43 Miss. 570; V. Wylie, 2 W. Va. 502, 08 Am. Dec. Barkwell v. Swann, 69 Miss. 907, 781; Busby v. Littlefield, 31 N. K. 13 So. 809; Dayton v. Dayton, 68 193 ; Stone V. Anderson, 26 Id. 522; Mich. 437, 36 N W. 209; Shelbey v.T^l'te;-, 3^/1^: l^;'tsfv.= Fu:^ - T-^y. «^ ^1- '''' ' S°- '''■' man, 21 Fla. 412; Custer v. Hall, Munford v. Pearce, 70 Ala. 452. 71 W. Va. 119, 76 S. E. 183; Cresap ssWick v. Dawson, 42 W. Va. 43, V Brown, 82 W Va. 467, 96 S. B. 24 S. E. 587, citing 1 Bart., Ch. Pr., :06; Hogan v. Ward, 106 S. E. 232 ,„„ ' s (\V. Va. 1921). 306. 99 Idem. § 111 Equity Procedube 180 § 111. The prayer of the bill for process. The ninth and last part of the bill is the prayer for process, to compel the defendant to appear, answer the bill, and abide the determination of the court on the subject.^"" Strictly speaking, the defendant must be named in this prayer, as it was formerly a rule commonly received as a test that no one could be considered a defendant against whom process was not prayed."^ In many jurisdictions the prayer for process must contain the names of the defendants,^"^ and an omission of this character in a few states is held to render the bill demur- rable.'"^ But the prayer for process is a mere technical rule, in the absence of a law or rule of court positively requiring it, so that a failure to name the" defendants in this part of the bill, if in other parts of it they are named with sufScient cer- tainty, is immaterial.'"'' And where a party has properly been made a defendant, it is rarely required that the bill actually pray for process against him, as process issues as a matter of course upon the filing of the bill, or before bill filed by direc- tion to the clerk in the form of a precipe lodged with him.'"^ The elements of the bill prescribed by the federal equity rules make no provision for a prayer for process, nor is such a prayer necessary in the federal courts.'"^ In the federal courts, lo" Story, Eq. PI., §44. 468; Kanawha Valley Bank v. Wil- 101 Conk V. Dorsey, 38 W. Va. 196, son, 35 W. Va. 36, 13 S. E. 58; 18 S. E. 468, in the opinion of the Brasher v. Van Courtland, 2 Johns, court, delivered by Brannon, J. Ch. (X. Y.) 242, 1 Law. Ed. 362; 102 1 Whitehouse, Eq. Prae., § 122, Verplanck v. Mercantile Ina. Co., 2 note. Paige Ch. (X. Y.) 438, 2 Law. Ed. 103 Idem; Keen v. Jordan, 13 Fla. 979. 327; Wright v. Wright, 8 N. J. Eq. io= JIcKenzie v. Baldridge, 49 Ala. 143 ; WTiite v. Davis, 48 N. J. Eq. 564 ; Cook v. Dorsey, 3S W. Va. 196, 22, 21 Atl. 16r. IS S. E. 468; Sheridan v. Cameron, lo* Sheridan v. Cameron, 65 Mich. 65 Mich. 680, 32 N. W. 894; White 680, 32 N" W. 894; De Wolf v. v. Thomas, 52 Miss. 52; 1 Bart., MaJlett, 3 Dana (Ky.) 214; Elmen- Ch. Pr., 269, citing Minor's Inati- dorf V. De Lancey, Tlopk. Ch. (N. tutes, vol. 4, p. 1125. Y.) 555, 2 Law. Ed. .521; Anderson io« U. S. Eq. Rule, 25; I White- V. Wilson, 100 Ind. 406; Cook v. house, Eq. Prac, §122, note; 2 Dorsey, 38 W. Va. 196, 18 S. E. Idem, § 3903. 181 The Bill § 112 as under the West Virginia statute, the defendants are desig- nated and described in the introductory part of the bill."^ The prayer for process in Virginia is of the most simple and direct form, and is usually as follows: "And may a sum- mons issue against the several defendants herein before named, "i"* § 112. The signing of the bill. According to the long-settled practice of a court of equity every bill, whether original or not, must be signed by coun- sel.'"" "Except in cases where an injunction is asked for, or a discovery, or an answer on oath is required from the defendant, bills are usually signed bj'' the solicitor alone, and not by the party. If the complainant sues in person, however, it must be signed by him. And in that ease, it seems that it need not be signed by counsel. The general rule, however, is that the bill must be signed by counsel. And if it is not so signed, it will be, on motion, stricken from the tiles; or it may be de- murred to for that cause. Signing by counsel, on the back, is held sufficient.""" 107 Idem. ordered to be taken from the flies, 108 4 Minor, Inst. P. 2, 1125. even though the cause had reached 109 Story, Eq. PI. (Ninth Ed.), a hearing; and also to the case of §47; 1 Daniell, Ch. PI. and Pr. Kirkley v. Burton, 5 Madd. 378, (Fourth Am. Ed.), 312; Partridge where a demurrer was sustained in V. Jackson, 2 Edw. Ch. (N". Y. ) 520, consequence of the bill not having 6 Law. Ed. 480; Carey v. Hatch, 2 been signed by counsel, and the Eng- Id. 190, 6 Law. Ed. 363, note; Puter- lish books of practice carry the baugh, Ch. PI. and Pr. (Third Ed.), same regulation on their face, hav- 61; 1 Bart., Ch. Pr., 269. mg gathered it from Lord Bacon's "I consider it indispensably neces- Rules, sary that a bill should liave the "The regulation is a right one; signature of counsel before it is put for there ought to be some one re- upon the records of the court. This sponsible in case there should be is laid down in books of practice, anything scandalous or impertinent and is borne out by eases. Mr. in the bill." Partridge v. Jackson, Hoffman states it distinctly in his supra. book of practice, vol. 1, p. 97, and n" Puterbaugh, Ch. PI. and Pr. refers to the case of French v. Dear, (Third Ed.), 61, 62; Carey v. Hatch, 5 Ves. 547, where the bill was 2 Edw. Ch. (N. Y.) 190, 6 N. Y. §112 Equity Procedure 182 In West Virginia where the bill is neither signed by the plaintiff nor counsel, it is demurrable; but if signed by the plaintiff in person, it is sufficient, although not signed by coun- sel; and signing an affidavit appended to the bill for purposes of verification is a sufficient signing of the bill.^^^ An objec- Ch. Law. Ed. 363, note; Fletcher, Eq. PI. and Pr., §82. Ill Dever v. Willis, 42 W. Va. 365, 26 S. E. 176; Augir v. Warder, 74 W. Va. 103, 81 S. E. 708. "Objection is also urged to the amended bill because it is not signed by counsel. Whether this objection was made in the court below does not appear. It has been a general rule of chancery practice since the time of Sir Thomas More, that the bill should be signed by counsel. This rule is recognized by all the text writers on chancery practice both in this country and in Eng- land. Daniell's Chancery Practice (Sixth Amer. Ed.) 311-312; Story, Eq. PI. (Tenth Ed.), §47; 1 Beach on Modern Eq, PL, §84; 1 Barton, Chan. Pr., 284. Justice Story says: 'The great object of this rule is, to secure regularity, relevancy and decency in the allegations of the bill, and the responsibility and guaranty of counsel, that upon the instructions given to them, and the case laid before them, there is good ground for the suit in the manner in which it is framed.' The supreme court of the United States adopted it as a rule of equity practice in the federal courts. Dewhurst's Rules of Practice in the United States Courts, page 348, rule 24. But the rule is not strictly adhered to in many of the states, and this is especially true of Virginia and West Virginia. Mr. Elinor, vol. 4 (Third Ed.), 1355, says: 'It is supposed that the same rule holds in Virginia, but the practice is very loose, and bills are often not signed at all.' "The usual practice in the state is for counsel to sign the plaintiflf's name to the bill and then append his own signature as counsel. But it has been frequently held that a signing by the plaintiff in person dispenses with the necessity of sign- ing by counsel. Burns v. Lynde, 88 Mass. 305; Carleton v. Eugg, 149 Mass. 550; Chapman v. Banker & Tradesman Co., 128 Mass. 478, and Johnson v. Johnson, 1 Walker Ch. Pep. (Mich.) 309. This departure seems to ignore altogether the rea- sons given by Mr. Story for the rule, but nevertheless the modern tendency is toward liberality rather than restriction in practice. By a. federal statute, § 747, Rev. Stat. U. S., persons are permitted to man- age their causes in the federal courts in person and without coun- sel. What bearing this statute has on the equity rule of practice- in the federal courts, above referred to, we are not able to say, and it is not necessary to inquire into it. It suffices to say that the rule has never been strictly adhered to either in Virginia or in this state; and we know of no positive rule of law which prohil)its a person from sign- ing his bill in his own proper per- son and conducting his suit without- 183 The Bill § 113 tion to a bill on the ground that it is not signed by counsel, taken for the first time in the court of appeals, comes too late.^^^ It has been decided that if a bill purports to be brought by ten persons named therein as complainants, but is in fact signed by only two, without any signature either of themselves or of counsel in behalf of the others, it is the bill of those two only.^^^ If, however, the signature of counsel to the bill has been omitted, the court may grant leave to have the bill signed by counsel.^^^ § 113. When the bill should be under oath. As a general rule the bill need not be verified by affidavit. -^^^ To this rule there are certain exeeptions.^^® Thus where the bill seeks a discovery of deeds and other documents, and prays relief founded on the deeds or writings of which a discovery is sought, if the relief so prayed be such as might be obtained at law, if the deeds or writings were in the custody of the com- plainant, the complainant must annex to the bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defend- counsel, if he chooses to do so, and 112 Jones v. Shuffin, 45 W. Va. our conclusion is that a bill, proper 729, 31 S. E. 975, 72 Am. St. Rep. in other respects, signed by the 848. plaintiflF, is good although not "s Chapman v. B. & T. Pub. Co., signed by counsel. This court held, 128 Mass. 478. in Dever v. Willis, 42 W. Va. 265, i" Carey v. Hatch, 2 Edw. Ch. (Jv". that a writing, purporting to be Y.) 190, 6 Law. Ed. 363 and note; a bill in chancery, not signed by Partridge v. Jackson, 2 Edw. Ch. anyone, was bad on demurrer. The (N". Y.) 520, 6 Law. Ed. 489. amended bill in this case is not only 11^5 4 Minor, Inst. Part 2, p. 1144, signed by the plaintiff but is sworn citing Mitf. Eq. PI., 49, 51, 131; to by him. His signing the affi- Story, Eq. PI., §§288, 313, 477; davit appended to the bill was a Coop., Eq. PI., 49, 50; Sands, Suit sufBcient signing of the bill. John- in Eq., 25 (§62), 316. See also son V. Johnson, supra." Williams, Fletcher, Eq. PI. and Pr., § 83. In J., in Augir v. Warder, supra,. West Virginia, the bill may always A bill filed by a corporation signed be verified, the effect of verification by counsel is sufficient without the being to compel the defendant to corporate seal. Washington Nat. B. answer under oath. W. Va. Code, & L. Assn. V. Buser, 61 W. Va. 1913, c. 125, § 38. 590, 57 S. E. 40. 136 Fletcher, Eq. PI. and Pr., § 83. § 114 Equity Proceduke 184 ant.^^^ But a bill for a discovery merely, or which prays only the delivery of deeds or writings or equitable relief grounded on them, does not require an affidavit.^-'* And if the suit be to recover in equity upon a lost instrument, the bill should be under oath.^^' So bills framed on the ground that the testi- mony of a witness may be lost by his death, or departure from the realm, before the ease can be investigated in a court of law;-'^" a bill of review for newly-discovered matter ;^^^ sup- plemental bills in the nature of bills of review ; ^^^ and bills of interpleader,^^' should be verified by affidavit. So a bill for an interlocutory or preliminary injunction should be sworn to ^^* and in the Virginias it is expressly provided by statute that "no injunction shall be awarded in vacation nor in court in a case not ready for hearing unless the court or judge be satisfied by affidavit or otherwise of the plaintiff's equity. "^^^ And the West Virginia statute further provides that all plead- ings in a divorce suit "shall be verified by the party in whose name they are filed. "^^* § 114. The stating part of the bill further ronsidered — ^Mat- ters which should be alleged therein. As this is the most important part of the bill, we shall here consider its essential -requisites somewhat at length, but as 117 Fletcher, Eq. PI. and Pr., § 83, Angell v. Angell, 1 Sim. and S. 83 ; citing Cooper, Eq. PI., 61; Mitford Laiglit v. Morgan, 1 John.n. Cas. (N. and T., PI. and Pr. in Eq., 153; Y.) 429; Mitford and T., PI. and Story, Eq. PI., 54, 124, 125; Loker Pr. in Eq., 150, 242; Suffolk v. V. EoUe, 3 Ves. 4; Eyves v. Eyves, Green, 1 Atk. 450; Shirley v. Fer- 3 Ves. 343; Hook v. Dorman, 1 Sim. rers, 3 P. Wms. 77. and S. 227. i^i Posf, §§233, 236. 118 Jdem, § 811, citing Cooper, Eq. 12= Mit. and Tyler, Eq. PI. and PI., 61; 2 Barbour, Ch. Pr., 106; Pr., 188. Buekner v. Ferguson, 44 Miss. 677; 1=3 Post, § 162. Mc-Elwee v. Sutton, 1 Hill, Eq. (S. 1=44 Minor, Inst. Part 2, p. 1144. C), 32, citing Cooper, Eq. PI., 61; i=--> W. Va. Code, 1913, c. 133, §3; Parson's Admr. v. Wilson, 2 Overt. Va. Code, 1904, § 3440. (Tenn.) 260. "e W. Va. Code, 1913, c. 64, §8, 110 Post, § 133. amended by Acts 1915, 0. 73. And 120 Fletcher, Eq. PI. and Pr., cit- any amendment made to such a bill ing Story, Eq. PI., §§304, 309; must also be sworn to. Jennings v. 185 The Bill §114 applicable generally to bills in equity, reserving the requisite o.ilegations necessary in certain particular cases for subsequent sections of this chapter.^^' In treating this vital part of the bill, those matters which it must contain as affirmative aver- ments will be first considered and then those matters which should be omitted from its draft will be mentioned and dis- cussed. In the first place, the bill must show on its face by the aver- ment of facts proper matter for the jurisdiction of a court of equity, else it will be demurrable, ^^' and such facts should be distinctly alleged, *^^ though an allegation on information and belief is sufficient,^'" provided the fact in dispute is averred to exist,^'^ except, it is said, as a rule, where an injunction is sought the allegations of the bill should not be made upon information and belief,^'^ unless the sources of the information are given duly supported by the affidavit of the persons fur- nishing the information.^^' In the next place the right de- ■NfcDougle, S3 W. Va. 186, 98 S. E. 162. 127 Post, §§ 118-150. 128 Surber's Admr. v. MeClintic, 10 W. Va. 236; Annon v. Brown, 65 W. Va. 34, 63 S. E. 691. A bill without equity will be dismissed at the hearing regardless of whether objection otherwise has been inter- posed. Ward V. Hotel Eandolph Co.,. 65 W. Va. 721, 63 S. E. 613. Jurisdiction can not be conferred by consent or agreement of the par- ties. Litz V. Eowe, 117 Va. 752, 86 S. E. 155; Freer v. Davis, 52 W. Va. 1, 43 S. E. 164, 59 L. R. A. 556, 94 Am. St. Eep. 895. 129 Ante, § 105. isoHyre v. Lambert, 37 W. Va. B6, 16 S. E. 446. 131 3 Enc. PI. and Pr. 363 and notes. "An allegation in a bill that the petitioner (plaintiff) has been informed and believes, and therefore avers," is a sufficiently positive averment. 1 Beach, Mod. Kq. Pr., §96. "But except where a bill is to be verified there is no practical pur- pose served by the employment of either of these phrases, since if the plaintiff really believes his informa- tion to be true there is no reason whatever why he should not aver it simply and directly as a fact." 1 Whitehouse, Eq. Prac, § 105. 13= C. & 0. R. R. Co. V. Huse, 5 W. Va. 579; Farland v. Wood, 35 W Va. 458, 14 S. E. 140. 133 Campbell v. Morrison, 7 Paige Ch. (N. Y.) 157, 4 Law. Ed. 105. In Wells V. Bridgeport Hydrau- lic Co., 30 Conn. 316, 79 Am. Dec. 250, there was u. charge of misrepre- sentation that the petitioner "is in- formed and verily believes and there- §114 Equity Procedure 186 manded or injury complained of should not only here be stated,^'* but the statement should be made with such detail of the essential circumstances of time, place, manner, etc., that the defendant will be thus informed of what he is called upon to meet ; ^'^ but this does not require that the circumstances which may conduce to prove the fact averred need be alleged, as this is matter of evidence.^^^ Foreign laws and private acts, when relied upon, must be averred.*'^ In short, every fact necessary to make out the case must be certainly and posi- tively alleged, for the court pronounces its decree as based upon the allegations of the bill as well as the evidence taken in support of it.'^'^ But facts which are shown to exist by necessary implication from others directly averred in the bill will be treated as sufSciently alleged, and will, therefore, war- upon avera,'' etc., and the court held this to be a direct and positive aver- ment. i3*Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; ante, § 105; Wellsburg, etc., Railroad Co. V. Pan Handle Traction Co., 56 W. Va. 18, 27, 48 S. E. 746, and cases cited. 135 See same citations. "A general charge or statement of the matter of fact is sufficient, and it is not necessary to charge minutely all the circumstances which may conduce to prove the general charge; for these circum- stances are properly matters of evi- dence, which need not be charged in order to let them in as proof." Johnson v. Helmstaeder, 30 X. J. Eq. 124. "The extent to which facts must be detailed depends upon the nature of the main fact .set up. Wlien the general term used for it may be equivocal and stand for a simple fact or a conclusion of law, as, for instance, the word 'fraud,' the rule of 'certainty to common intent' demands the statement of sufficient facts to show that the acts com- plained of and intended to be estab- lished by the evidence, constitute fraud, but even here, the evidence need not be detailed." Wellsburg, etc.. Railroad Co. v. Pan Handle Traction Co., 56 W. Va. IS, 27, 48 S. E. 746. See Batson v. Findley, 52 W. Va. 343, 43 S. E. 142. 1" 3 Enc. PI. and Pr., 356. But see W. Va. Code, 1913, c. 13, § 4. 138 Hood V. Morgan, 47 \V. Va. 817, 35 S. E. 911; Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; Cleaver v. Jlatthews, 83 Va. 801, 3 S. E. 439; Universal In- surance Co. V. Devore, 83 Va. 267, 2 S. E. 433; Nash v. Nasi,^ 28 Gratt. (Va.) 686. A decree witii- out allegations to support it is void. Waldron v. Harvey, 54 W. Va. S98. 46 S. E. 603 ; Lockhart v. Hoke, §5 W. Va. 382, 101 S. E. 703. 187 The Bill § 114 rant the production of evidence in proof of thei*- existence.^'' Thus an allegation that certain lands, describing them, are and have been necessary to the operation of the plaintiff's railroad, is equivalent to an assertion that they are made use of for that purpose.^*" If, however, the averments and state- ments in the bill are so indefinite and meagre with reference to any essential fact or facts, that their existence and aver- ment, depending upon implication, rest upon mere matters of conjecture and surmise, the bill will be regarded as insufficient and bad upon demurrer.^*^ The bill should clearly set forth the right, title or claim upon which the plaintiff relies for relief. That is, the bill should set forth with clearness and accuracy those facts which show that the plaintiff has a right in equity to maintwm his hill}^^ Thus a bill in equity stating that a certain stream within a state is in fact navigable for the purposes of public commerce, without any direct averment that the state is the owner of the bed of such stream or of the deposits therein, does not allege the title or right of the state with such sufficient certainty as would warrant the granting of an injunction, therein prayed, to restrain the removal of phosphatie or other deposits therefrom or to require an answer to .such bill.^^' A demurrer to such bill is properly sustained on the ground of insufficiency, uncertainty, and vagueness.^''* So where a bill is brought by the next friend of a party, and it is not shown 139 Marquette, etc., R. Co. v. Mar- W. 30; Marye v. Root, 27 Fla. 4.53, quette, 35 Mich. 504; Pope v. 8 So. 636; Blizzard v. Salyer, 125 Va. Leonard, 115 Mass. 286; Riley v. 604, 100 S. E. 454. Carter, 76 Md. 581, 25 Atl. 667, 19 "2 West v. Reynolds, 35 Fla. 317, L. R. A. 489, 35 Am. St. Rep. 443; 17 So. 740; State v. Black River Champlin v. Parrish, 3 Edw. Ch. Phosphate Co., 27 Fla. 276, 9 So. (N Y.) 583; Whelan v. Whelan, 3 205; Mutual L. Insurance Co. v. Cow. (N. Y.) 537, 8 Law. Ed. 215; Sturges, 32 N. J. Eq. 678; Dickin- Webber v. Gage, 39 N. H. 182; son v. Foster, 81 W. Va. 739, 05 Stewart v. Flint, 57 Vt. 216. S. E. 196. Likewise, the interest of 140 Marquette, etc., R. Co. v. Mar- the defendant in the subject matter quette, 35 Mich. 504. should be stated. Roberts v. Hunt- 141 Richards v. Richards, 98 Ala. ington Development & Gas Co., 85 599, 12 So. 817; Moorer v. Moorer, W. Va. 484, 102 S. E. 93. 87 Ala. 545, 6 So. 289; Wright v. 143 State v. Black River Phoa- Hicks, 15 Ga. 160, 60 Am. Dec. 687 ; phate Co., 27 Fla. 276, 9 So. 205. Foster v. Hill, 55 Mich. 540, 22 N. m Idem. § 115 Equity Procedure 188 that such party is a minor or married woman, or otherwise entitled to sue by next friend, and there is great uncertainty in the allegations of the bill, as to whether such party has any interest whatever in the subject of the suit, a demurrer to the bill should be sustained.^" As we have seen ^^* the premises contain the names of the parties to be affected by the suit. In this connection it may be well to state that the bill should describe the parties by their proper names, or the names by which they are known and called. ^^' While it is held in some jurisdictions that if suffi- cient facts are set forth in the bill to show that the complainant is entitled to the relief asked for as an executor, or that defend- ant's liability is that of an executor, it is not essential that either party should be so styled in the bill,^** yet in West Vir- gmia it is held that in a bill in equity preferred by an executor, as such, he ought to describe himself as the executor of the testator, and that it is not proper for an executor who sues to describe himself merely as "personal representative" of the decedent.^^' § 115. The stating part of the bill further considered — Mat- ters which ought not to be alleged therein. There ought not to be alleged in the bill matters of which the court will take judicial notice ; ^^^ nor conclusions or pre- sumptions of law ^^^ except, perhaps, where law and fact are 145 West V, Reynolds, 35 Fla. 317, Mock v. City of Santa Rosa, 126 17 So. 740. Cal. 330, 58 Pae. 826; Evans v. 146 Ante, § 105. Evans, 23 N. J. Eq. 72. 14T Fletcher, Eq. PI. and Pr., § 89, i*9 Capehart v. Hale, 6 W. Va. citing Kirkham v. Justice, 17 111. 547. 107; Kanawha Val. Bank v. Wilson, I'o 3 Enc. PI. and Pr. 356; 35 W. Va. 36, 13 S. E. 58. The Fletcher, Eq. PI. and Pr., § 103. parties should be described by their isi Zell Guano Co. v. Heatherly, full names, not by their initials. 38 W. Va. 409, 18 S. E. 611; SlingluflF V. Gainer, 49 W. Va. 7, 37 Fletcher, Eq. PI. and Pr., § 103; S. E. 771. A misnomer, however, Longdale Iron Co. v. Quesenberry, will not invalidate the decree. Stout 50 W. Va. 451, 40 S. E. 487; State V. B. & 0. R. R. Co., 64 W. Va. 502, v. McEldowney, 54 W. Va. 695, 702, 63 S. E. 317, 131 Am. St. Rep. 940. 47 S. E. 650; Glade Mining Co. v. 148 Ransom v. Greer, 30 N. J. Eq. Harris, 65 W. Va. 152, 63 S. E. 249; Buck v. Fisher, 2 Colo. 709; 873. 189 The Bill § 116 so blended as to render it unavoidable ; *^^ nor matters which are scandalous or impertinent;^^' nor inferences and argu- ments.^^* So, too, a bill should not allege contradictory and distinct grounds of suit which destroy each other,^^^ and if the bill contains allegations disclosing a ground of relief and these are contradicted by other allegations, and it is impossible to determine the true nature of the case sought to be made by the bill, the bill is demurrable.^^^ But this principle is not inconsistent with the one that permits the draft of a bill with a double aspect.^^' § 116. What matter is scandalous or impertinent. Scandal in a bill in equity is defined to be "the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause; to which may be added that any unnecessary allegation, bear- ing cruelly upon the moral character of an individual, is also scandalous."'^' Impertinence as applied to a bill in equity 15-' Jackson v. Eowell, 87 Ala. E. I. R. Co., 24 U. S. App. 428, 64 685, 6 So. 95, 4 L. R. A. 637; Bliaa Fed. 535; Micou v. Ashurat, 55 Ala. V. Anderson, 31 Ala. 612, 70 Am. 612; McComb v. Lobdell, 32 Gratt. Dec. 511; Thompson v. Moxey, 47 (Va.) 185. N". J. Eq. 538, 20 Alt. 854; Schucli- ise Bridger v. Thrasher, 22 Fla. ert V. Wabash, etc., R. Co., 10 111. 383; Friedman v. Fennell, 94 Ala. App. 397; Iowa County v. Min. R. 570, 10 So. 649; Brooks v. Lowen- R. Co., 24 Wis. 93; Orendorff v. stein, 124 Ala. 158, 27 So. 520. Tallman, 90 Ala. 441, 7 So. 821. i" Post, § 151, 153 1 Beach, Mod. Eq. Pr., § 109. iss 1 Beach, Mod. Eq. Pr., § 109. 154 Hood V. Inman, 4 Johns. Ch. "There are many cases, however, (IST. Y.) 437, 1 Law. Ed. 894 and in which, though the words in the note; Longdale Iron Co. v. Quesen- record are very scandalous, yet, if berry, 50 W. Va. 451, 40 S. E. 487. they are material to the matter in 156 Hart V. McKeen, Walk. Ch. dispute, and tend to a discovery of (Mich.) 417; Collins v. Knight, 3 the point in question, they will not Tenn. Ch. 183; Heyer v. Bromberg, be considered as scandalous; for a 74 Ala. 524; Williams v. .Jackson, man may be stated on the record 107 U. S. 478, 2 S. Ct. 814, 27 L. to be guilty of a very notorious Ed. 529; Walthall's Exrs. v. Rives, fraud, or a very scandalous action, 34 Ala. 91; Merriman v. Chicago &, as in the case of a brokerage bond, §116 Equity Procedure 190 includes all matters not material to the suit, or, if material, which are not in issue, or which, if both material and in issue, are set forth with great and unnecessary prolixity.'^' Scan- dalous matter is also impertinent, but a bill may contain mat- given before marriage, to draw in a poor woman to marry; or where a man falsely represents himself to have a great estate, when, in fact, he is a bankrupt; or where one man is personated for another; or in the case of a common cheat, game- ster, or sharper about the town. In these, and in many other instances, the allegations may appear to be very scandalous, and not fit to re- main on the records of the court; and yet, perhaps, without having an answer to them, the party may lose his right; the court, therefore, al- ways judges whether, though mat- ter be prima facie scandalous, it is or is not of absolute necessity to state it; and if it materially tends to the point in question, and is be- come a necessary part of the cause, and material to the defense of either party, the court never looks upon this to be scandalous. Were it otherwise, it would be laying down a rule that all charges of fraud are scandalous, which would be dangerous. Upon this principle, therefore, it has been determined that if a bill be filed by a cestui que trust for the purpose of re- moving a trustee, it is not scan- dalous or impertinent to challenge every act of the trustee as miscon- duct, or to impute to him corrupt or improper motives, in the execu- tion of the trust, or to allege that his conduct is the vindictive con- sequence of some act on the part of the cestui que trust, or of some change in his situation. It is to be observed, however, that in such case it would be impertinent, and might be scandalous to state any circumstances as evidence of gen- eral malice or personal hostility, without connecting such circum- stances with the acts of the trustee which are complained of; because the fact of the trustee entertaining general malice or hostility against the plaintiff, affords no necessary or legal inference that his conduct in any particular instance results from such motive. "It has been decided that under a general charge of immorality, evidence of particular instances may be introduced. Where, there- fore, such evidence can be made use of under the general charge the specific instances should not, if it can be avoided, be introduced into the bill; thus, it is improper, in a suit which is founded upon the want of chastity in a particular in- dividual, as in cases of bills to set aside securities given turpe consid- eratione, to charge particular in- stances of levity which might af- fect the character of strangers, and to fill the record with private scan- dal, because evidence of those par- ticular instances may be given un- der the general charge." I Daniell, Ch. PI. and Pr. (Fourth Am. Ed.). 347, 348. 159 1 Beach, Mod. Eq. Pr., § 109. "Impertinence in pleadings con- sists in setting forth what is not necessary to be set forth; as stuff- ing them with recitals and long di- 191 The Bill § 116 ter which is impertinent without being scandalous."" "The court, in' eases of impertinence, ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as ought to be struck out of the record, for the reason that the error, on the one side, is irremediable ; on the other, not.""i Recitals of deeds at length, in haec v^rba, unless for some special purpose appearing on the face of the bill, constitutes impertinence;"^ likewise a repetition of the same allegations in different parts of the bill ; ^^^ and where pertinent matter is so mixed up with that which is impertinent and irrelevant that they cannot be separated, the whole may be rejected as imper- tinent.i" It matters not how disparaging or abusive language or words used in a bill may be, the matter will not be treated as scandal- ous, unless it is also irrelevant, and put in for the mere purpose of scandal.^^^ Thus where a bill for the specific performance of a contract sets out the contract, and by way of inducement, to support the allegation of the due execution of the contract, goes into particulars, and sets out circumstances which, if true, show ingratitude and baseness in defendant for refusing to execute the contract, the latter may answer and set out circum- stances tending to corroborate his averment that the contract is a forgery, or obtained by fraud ; for, though abusive and dis- paraging, such averment is relevant and therefore not scandal- ous."^ gressions as to matters of fact (N. C.) 334, 98 Am. Dec. 87; Price wholly immaterial." Hood v. In- v. Tyson, 3 Bland Ch. (Md.) 392, man, 4 Johns. Ch. (N. Y.) 437, 1 22 Am. Dec. 279; Jolly v. Carter, Law. Ed. 894. 2 Edw. Ch. (X. Y.) 209, 2 Law. leo Idtm. Ed. 372; Riddle v. Stevens, 2 S. T-niIdem. and R. (Pa.) 537. 162 Camden, etc., R. Co. v. Stew- iso Henry v. Henry, Phillips Eq. art, 19 N. J. Eq. 343. (N. C.) 334, 98 Am. Dec. 87. 163 Norton v. Woods, 5 Paige Ch. "Whatever is necessary to bring (N. Y.) 260, 3 Law. Ed. 711. the merits of the cause to trial 164 Idem. must be placed on the record, how- 166 Henry v. Henry, Philips Eq. ever painful it may be to the feel- §117 Equity Procedure 192^ § 117. How objections for scandal and impertinence are raised. Neither scandal nor impertinence can be reached by demur- rer,"' but by exception only, specifying the objection and its grounds, ^''^ and if the exception be partly bad and partly good it must be overruled in toto}^^ The application to expunge scandal or impertinence is gen- erally an interlocutory proceeding preliminary to the settle- ment of the issues and final hearing,^'"' and this is the invariable rule as to impertinence, as no objection can be made on this ground after a demurrer or answer or after a rule or time given in which to answer ; '•^i but as scandal is a more blame- worthy defect, it may be stricken out at any stage in the pro- ceeding.^" "A bill may be referred for scandal at any time by any party to the cause, as, for instance, a defendant, who has not been served, and even upon the leave of the court, jngs of the parties; but there the matter is to stop, and the court may strike out allegations which wound the character of one party without being of any real service to the other." Riddle v. Stevens, 2 S'. and R. (Pa.) 537. See also, .Johnson v. Brown, 13 W. Va. 154, 155. 107 1 Beach, Mod. Eq. Pr., § 111; Shipman, Eq. PI., 351; 1 Baniell, Ch. Pr. (Fourth Am. Ed.), 349; 1 Whitehouse, Eq. Prac, § 108. 168 Whitemarsh v. Campbell, 1 Paige Ch. (X. Y.) 645, 2 L. Ed. 785; Franklin v. Keeler, 4 Paige Ch. (N. Y.) 382, 3 L. Ed. 479; Shipman, Eq. PI., 351; 1 White- house, Eq. Prac, § 108. 168 1 Beach, Mod. Eq. Pr., § 112; 1 Daniell, Ch. Pr. (Fourth .\m. Ed.), 352. 110 19 Enc. PI. and Pr., 200. 171 Wilson V. Perrine, 19 N. J. Law J. 15; Bo\vman v. Sheldon, 5 Sandf. (N. Y.) 657; Best v. Clyde, 86 N". C. 4; Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 390, 3 Law. Ed. 103.3. 17- Johnson v. Tucker, 2 Tenn. Ch. 244; The Whistler, 13 Fed. 295; Johnson v. Brown, 13 W. Va. at p. 153, citing Coffin v. Cooper, 6 Ves. 513. "The court may at any time have stricken irom the record scandalous matter, though it refer to a stranger to the suit, either at the instance of such stranger, or without any motion by anyone. The court of its .own motion, in aid of public morals, is bound not to permit its records to be made the means of perpetrating libelous and malignant slanders, but should interfere to suppress such indecencies, which may stain the reputation and wound the feelings of the parties, their relatives and friends.'' John- son v. Brown, 13 W. Va. 153. 193 The Bill § 118 upon the application of a stranger to the suit, or the court may" expunge such matter upon its own motion. ' ' ^''^ The scandalous or impertinent matter is usually expunged from the pleading by crossing out or erasing the objectionable portions.^^* § 118. Essential allegations of the bill in certain causes — In matters of account. It is not intended here to give the requisite allegations in all cases which arise in equity, but only in some of the more important and usual ones, and in such cases, only those alle- gations that should appear in the premises of the bill, to make it sufficient for the purposes of the suit. Beginning with the matter of account generally, it is well to state that, as one of the most difficult questions arising under this head is to ascertain the true boundaries of equity jurisdic- tion in such matters of accounts as are cognizable at law,^'^ the courts require a plain case to be made in the bill in order to uphold the equitable remedy.^'^ The statements of the bill must be definite and certain as to the item or items of the account,"^" and a vague charge that "there are voluminous and intricate accounts between the parties" is insufficient ; ^'^ the bill must contain facts showing the intricate and complex nature of the accounts.^''^ And the bill must aver. an indebtedness at the time of the institution of the suit.^^" 173 1 Beach, Mod. Eq. Pr., § 112. But see McGraw v. Traders' Nat. 174 19 Enc. PI. and Pr., 217. Bank, 64 W. Va. 509, 63 S. E. 398, 175 Lefever v. Billmyer, 5 W. Va. where it is said: "In a bill for 33, 3S; 39 L. R. A. (N.S.) 49, 57, a general accounting such specific note. pleading is not required; it is sufii- 176 Ely V. Crane, 37 N". J. Eq. 564 ; cient to show the relation of the Peterson v. Smith, 75 W. Va. 553, parties which entitles complainant 84 S. E. 250. to tlie relief, and a general state- 17T Lefever v. Billmyer, 5 W. Va. ment of the matters pertaining to 33. which the accounting is sought will nsldem; Davis v. Marshall, 114 be sufficient." To show a fiduciary Va. 193, 76 S. E. 316. relationship is generally sufficient. 179 3 Daniell, Ch. Pr. (Fourth Wilson v. Kennedy, 63 W. Va. 1, 59 Am. Ed.), 1929, note 1; Davis v. S. E. 736. Marshall, 114 Va. 193, 76 S. B. 316. isoVolmer v. McCauley, 7 Phila. § 119 Equity Peocedure 194 It is laid down by recognized authority ^^'^ that it is sufficient for the plaintiff to allege in his bill the facts showing his right to an account, and to aver generally that there is a balance due him. And if the plaintiff suspects that the defendant has doc- uments which would aid him in proving his case, he may allege generally that the defendant has books, papers and documents in his possession or under his control hy which the truth of the allegations in the bill, or some of them, will appear,^^^ and the defendant must then deny the allegation, or he must spe- cify what documents he has, and produce them for the plain- tiff's inspection and use.^^^ "Plaintiff alleged in his complaint that he was the owner of certain hank stock, which he had assigned as collateral for debt, and that the pledgee turned it over to another on pay- ment by such other of plaintiff's note to the pledgee; that such other turned it over to his creditor as collateral to his own debt to him; and that such creditor had the stock transferred on the books of the bank to himself. Held: To state a cause of action against the assignee of the pledgee and his creditor for an accounting." ^^* § 119. In matters of arbitration and award. Bills under this head are usually those filed to set aside an award as the result of an improper arbitration, and they should state the facts on which the right to set aside the award is predieated.^^^ Thus a bill to set aside an award for par- tiality, incompetency, fraud or mistake of the arbitrators should specially aver the facts in which the objection to the award (Pa.) 382; Clason v. Lawrence, 3 is^' Tittenson v. Peat, 3 Atk. 529; Edw. Ch. (N. Y.) 48, 6 Law. Ed. Roirth v. Peach, 2 Anstr. 519; Hart 566. V. Kennedy, 47 N. J. Eq. 51, 20 isiLangdell, Eq. PI. (Second Atl. 29; Bowden v. Crow, 2 Tex. Ed.), §58. Civ. App. 594, 21 S. W. 612. See ^«-' Idem. also. Wheeling Gas Co. v. City of 183 Idem. Wheeling, 5 W. Va. 448. 184 Maxwell v. Foster, 64 S. Car. 1, 41 S. E. 776. 195 The Bill § 120 consists."" But a charge in the bill that on* of the arbitra- tors acted as the "adviser and partisan" of the party appoint- ing or selecting him, is a siifficient averment to maintain the bill to set aside the award."' So a charge that an arbitrator acted as the agent of one of the parties is sufficient to sustain the bill."^ If Ihe ground of sotting aside the award is that it is con- trary to the evidence adduced before the arbitrators, all the evidence should be set forth in the bill, and it should be alleged that it is all the evidence.^*' § 120. In the matters of atta.chment. In the draft of a bill in equity upon a purely legal demand, for the purpose of an attachment and to sustain a bill to that end, it need not appear on the face of the bill that the plaintiff has invoked or intends to invoke the writ of attachment in order to sustain the jurisdiction of the court.^'" The bill may be drawn without any allegation touching the attaehment.^'^ Though not necessary in drafting a bill in a suit in chancery on a purely legal demand in an attachment proceeding, it is, however, suggested that such allegations be made in the bill as to bring the case within the purview of the attachment law, and also to allege the issuance of an attachment, if such be the fact at the time the bill is filed, acd if not, then to allege the fact of the plaintiff's intention to obtain an attachment, so as thus clearly to support the court's jurisdiction.^^^ 186 Overby v. Thrasher, 47 Ga. i89 Overby v. Thrasher, 47 Ga. 10; Hartford F. Ins. Co. v. Bon- 10; Anderson v. Taylor, 41 Ga. 10, ner Mercantile Co., 44 Fed. 156, 11 16. L. E. A. 623; Hart v. Kennedy, 47 iso Hogg, Eq. Pr., §37, p. 53. N. J. Eq. 51; Phillips v. Phillips, r^T-Idem; Miller v. White, 46 W. 81 Ky. 147; Bowden v. Crow, 2 Tex. Va. 67, 33 S. E. 332, 76 Am. St. Civ. App. 591, 21 S. W. 612. Eep. 791. 187 Wheeling Gas Co. v. City of !»= Hogg, Eq. Pr., § 37, note 4. Wheeling, 5 W. Va. 448. See post, § 7r.5, as to what is said IBS Iclem. as to adopting the bill as the aflS- davit for the attachment. § 121 Equity Procedure 196 § 121. In the matter of the cancellation, reformation and rescission of written instruments. As a contract or other written instrument may be cancelled or rescinded on the grounds of fraud and for numerous other causes/'^ we shall mention here only some of the essential alle- gations that ought generally to appear in bills of this char- acter. In the first place, the allegations of the bill must be definite, positive and certain in the statement of facts relied upon for relief,^'* but technical accuracy and precision are not required, — only that a claim to relief be substantially shown, taking the bill and its exhibits as a whole.^'^ In the next place, the ground upon which the cancellation or rescission is sought is a fundamental averment of the bill.^'* Thus, if the ground of rescission be fraud, the facts constitut- ing it must be specifically alleged ; -^^^ and where false represen- tations are relied on, such representations must also be averred and that they were in fact false, ^^^ and relied upon by the plaintiff;^'' and it must be alleged that the plaintiff did not know of the falsity of the false representations,^"" and that he 193 Hogg, Eq. Pr., c. 8, pp. 79-99. Court, 8 Colo. App. 146, 45 Pac. See Gall v. Bank, 50 W. Va. 597, 239. 40 S. E. 390. 1" State v. Williams, 39 Kan. 194 Citizens' Nat. Bank v. Judy, 517, 18 Pac. 727; Reynolds v. Ex- 146 Ind. 322, 43 X. E. 259; Har- celsior Coal Co., 100 Ala. 296, 14 rington v. Rutherford, 38 Fla. 321, So. 573 ; Zell Guano Co. v. Heather- 21 So. 283; Noi-i-ig V. C. T. ly, 38 W. Va. 409, 18 S. E. 611; H. Co., 22 Colo. 162, 43 Pac. 1024; Wellsburg, etc.. Railroad Co. v. Pan Wilson V. Maxon, 56 W. Va. 194, Handle Traction Co., 56 W. Va. IS, 49 S. E. 123; Sweeney v. Foster, 27, 48 S. E. 746; Pusey v. Gardner, 112 Va. 499, 71 S. E. 548. 21 W. Va. 469. 195 Grossbach v. Brown, 72 Wis. iss Bailey v. Fox, 78 Cal. 389, 20 458, 40 N. W. 494; Tucker v. Mad- Pac. 868; Wilson v. Morris, 4 Colo, den, 44 Me. 206; Wilson v. Mo- App. 242, 36 Pac. 248. riarty, 77 Cal. 596, 20 Pac. 134. "s Hogg, Eq. Pr., §52, p. 92; 190 Johnson v. Rogers, 112 Ala. Stalnaker v. Janes, 68 W. Va. 176, 576, 20 So. 929 ; Goree v. Clements, 69 S. E. 651 ; Cork v. Cook, 56 W. 94 Ala. 337, 10 So. 906; Travelers' Va. 51, 48 S. E. 757. Ins. Co. V. Redfield, 6 Colo. App. 200 Pratt v. Philbrook, 33 Me. 17. 190, 40 Pac. 195; Smith v. Mc- 197 The Bill S 121 was injured thereby.^"^ It must be averred that the fraudulent represpntations were made by him against whom rescission is sought,^"- or that he procured them to be made by his agent or scrvant.^"^ If the bill seek the reformation of a written instrument on the ground of mistake, the terms of the original agreement must be set out in the bill, as well as the agreement as reduced to writing; and the bill must point out with clearness wherein there is a mistake ; ^"^ and aver that it is material, that it is the moving cause of the complaining party's action ; ^"^ that it was mutual, or shared in by both parties to the transaction ; ^°' that it was unintentional, and that the plaintiff was free from negli- gence.^*" In a suit to avoid or set aside an instrument, the plaintiff is not always confined to the express allegations of his bill as the ground for invalidating the same.^"* Thus, in a suit to annul or set aside a tax deed, while it is proper and desirable that the plaintiff should set out in his bill the grounds on which he claims the deed is invalid, still if such deed is exhibited with and made part of his bill, and it appears upon its face to be invalid, the court will not decline to declare it void and set it aside, simply because the plaintiff did not in his bill specify the particular ground upon which the court regards it void.^"' 201 Belmont Min., etc., Co. v. Cos- v. Gardner, 21 W. Va. 469; Batson tigan, 21 Colo. 471, 42 Pac. 647. v. Findley, 52 W. Va. 343, 43 S. 202Schultz V. McLean (Cal.), 25 E. 142. Pac. 427. 205 Hogg, Eq. Pr., §49, p. 89; 203 Gundy v. Louisville, etc., E. Simmons v. Palmer, 93 Va. 389, 25 Co., 98 Ky. 117, 32 S. W. 392. S. E. 6. =04 Citizens' Nat. Bank v. Judy, 206 Hogg, Eq. Pr., §49, p. 89; 146 Ind. 322, 43 N. E. 259, citing Crim v. O'Brien, 69 W. Va. 754, 73 Mfg. Co. V. Osgood, 26 Conn. 19; S. E. 271; Briggs v. Watkins, 112 Hyland v. Hyland, 19 Or. 61, 23 Va. 14, 70 S. E. 551. Pac. 811, 20 Am. St. Eep. 793; 20' Hogg, Eq. Pr., §49, p. 89. Meier v. Kelly, 20 Or. 86, 25 Pac. 20s Simpson v. Edmiston, 23 W. 73; Lewis v. Lewis, 5 Or. 170; 20 Va. 675. Am. and Eng. Enc. Law, 720; 1 209 Idem. The rule here is based Ping., Chat. Mortg., § 269 ; 2 War., on the general principle that thfe Vend., p. 801; Beach v. Bellwood, exhibit is a part of the bill. 104 Va. 170, 51 S. E. 184; Pusey §122 Equity Procedure 198 § 122. In the matter of the removal of cloud upon title to real estate. Equity has original, inherent jurisdiction to quiet title to real estate and remove a cloud therefrom,^" independent of fraud, accident, mistake, trust, account or other basis.^^^ The bill must allege what title or interest the plaintiff claims in the property,^'^ and an averment that the plaintiff is the or "owner in fee simple, or "the owner by complete equitable title" is sufficient without setting out the facts constituting ownership. ^^^ The averment of title must be as of the time of suit brought, and not that he had title at 21" Armgtrong v. Conner, 86 Ala. 350, 5 So. 451; Lyon v. Hunt, 11 Ala. 295, 46 Am. Dec. 216; Munaon V. Munson, 28 Conn. 582, 73 Am. Dec. 693; Graham v. Florida Land & Mortgage Co., 33 Fla. 356, 14 So. 796; Downing v. Wherrein, 19 N. H. 9, 49 Am. Dec. 139; Lowmiller V. Fouser, 52 Ohio St. 137, 39 N. E. 419; Marsh v. Reed, 10 Ohio 347; Tennant's Heirs v. Fretts, 67 W. Va. 569, 68 S. E. 387, 29 L. R. A. (N.S.) 625, 140 Am St. Rep. 979. 211 Mem; Dull's App., 113 Pa. 510, 6 Atl. 540. 212 Cargar v. Fee, 140 Ind. 572, 39 N. E. 93; Ludlow v. Ludlow, 109 Ind. 199, 13 N. E. 769; Bisel V. Tucker, 121 Ind. 249, 23 N. E. 81 ; Spencer v. McGonagle, 107 Ind. 410, 8 N. E. 266; Harr v. Shafifer, 45 W. Va. 709, 31 S. E. 905; Ritchie v. Pease, 114 111. 353, 3 N. E. 897; Whipple v. Gibson, 158 111. 339, 41 N. E. 1017. As to the necessity of alleging title in tlie plaintiff, see HitcUeox V. Morrison, 47 W. Va. 206, 34 S. E. 993; Stockton v. Craig, 56 W. Va. 464, 49 S. E. 386; Mills v. Henry Oil Co., 57 W. Va. 255, 50 S. E. 157; Holderby v. Hagan, 57 W. Va. 341, 50 S. E. 437; Logan V. Ward, 58 W. Va. 366, 52 S. E. .398, 5 L. R. A. (N.S.) 1.56; Wallace V. Elm Grove Coal Co., 58 W. Va. 449, 52 R. E. 485; Iguano Land & Mining Co. v. Jones, 65 W. Va. 59, 64 S. E. 640; Roberts v. Gruber, 74 W. Va." 550, 82 S. E. 367; Feather V. Baird, 85 W. Va. 267, 102 S. E. 294. An interest less than a fee simple, c. jr., a life estate, is sufficient. Crincr v. Geary, 78 W. Va. 476, 89 S. E. 149. An interest in remainder is sufficient. Austin v. Brown, 37 W. Va. 634, 17 S. E. 207. In Virginia, by virtue of statute, an equitable title is sufficient. Buchanan Co. v. Smith, 115 Va. 704, 80 S. E. 794. In West Virginia, by virtue of deci- sions, apparently an equitable title is sufficient. Swick v. Rease, 62 W. Va. 557, 59 S. E. 510; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (X.S.) 775; Dudley v. Browning, 79 W. Va. 331, 90 S. E. 878; Howard, Bills to Remove Cloud from Title, 25 W. Va. L. Quart. 17 et seq. 213 Cook V. Friley, 61 Miss. I. 214 Pittsburg, etc., R. Co. v. O'Brien, 142 Ind. 218, 41 N. E. 528. 215 Stanley v. Holiday, 130 Ind. 464, 30 N. E. 634; Harrill v. Robin- son, 61 Miss. 153. "A complaint in quieting title, which alleges that 199 The Bill §122 some previous time.^*^ And the plaintiff must aver his actual possession of the property,^^^ unless the suit be brought to remove a cloud created by a tax deed which the suit is brought to cancel, when possession need not be alleged or proved.^" The property in question should be described in the bill, with' sufficient certainty for identification, ^^^ and the adverse claim plaintiff is the owner by a complete equitable title, and ia entitled to the possession thereof, is good on de- murrer, without specifying the na- ture and extent of such title.'' Stan- ley V. Holliday, supra. 218 Park V. Brown, 12 111. App. 291; Scarborough v. Myrlck, 47 Neb. 794, 66 N. W. 867. 217 Johnson v. Huling, 127 111. 14, 18 N. E. 786; Peacock v. Stott, 104 N. C. 154, 10 S. E. 456; Eus- aell V. Barstow, 144 Mass. 130, 10 N. E. 746; Louisville & N. R. Co. V. Taylor, 93 Va. 226, 24 S. E. 1013; Christian v. Vance, 41 W. Va. 754, 24 S. E. 596; Earle v. Keenan, 68 W. Va. 732, 70 S. E. 753; Beatty V. Edgell, 75 W. Va. 252, 83 S. E. 903; Horse Creek Coal Land Co. v. Trees, 75 W. Va. 559, 84 S. E. 376; Chambers v. Perrine, 81 W. Va. 321, 94 S. E. 381; Stewart v. Work- man, 85 W. Va. 695, 102 S. E. 474. See numerous cases cited in Eucyc. Dig. Va. & W. Va. Kep., under title "Quieting Title." In West Virginia, the possession must be actual. Mackey v. Maxin, 63 W. Va. 14, 59 S. E. 742. But in' Virginia, con- structive possession is sufficient. McNamara Syndicate y. Boyd, 112 Va. 145, 70 S. E. 694. An allegation of possession is not necessary where there is an independent ground of jurisdiction, and removal of cloud from title is only incidental to, or a portion of, the general relief sought, as illustrated in the following cases: Vindication of an equitable title. Blake v. O'Neal, 63 W. Va. 483, 61 S. E. 410, 16 L. E. A. (N.S.) 1147; Mustard v. Big Creek Devel- opment Co., 69 W. Va. 713, 72 S. E. 1021; Custer v. Hall, 71 W. Va. 119, 76 S. E. 183; Jackson v. Cook, 71 W. Va. 210, 76 S. E. 443. Fraud. McConnell v. Eowland, 48 W. Va. 276, 37 S. E. 586. Mistake. Jef- ferson V. Gregory, 113 Va. 61, 73 S. E, 452. Nor is it necessary to allege possession where possession is impossible, as in the case of min- erals beneath the surface. Morison V. American Assn., 110 Va. 91, 65 S. E. 469. If the facts averred show possession, a general and speciflo allegation of possession is not neces- sary. Castle Brook Carbon Black Co. V. Ferrell, 76 W. Va. 300, 85 S. E 544. A general allegation of possession prima facie means actual possession. Round Bottom Coal & Coke Co. V. Ben Franldin Coal Co., 106 S. E. 716 (W. Va. 1921). 218 Simpson v. Edmiston, 23 W. Va. 675; Forqueran v. Donnally, 7 W. Va. 114; Jones v. Dils, 18 W. Va. 759; Orr v. Wiley, 19 W. Va. 150; Barr v. Clayton, 29 W. Va. 258, U S. E. 899; Miller v. Cook, 135 111. 190, 25 N. E. 756, 10 L. E. A. 292; Burlew, Trustee, v. Quar- rier, 16 W. Va. 108; Boggess v. Scott, 48 W. Va. 316, 319, 37 S. E. 661. 219 Ward V. Janney, 104 Ala. 122, 16 So. 73; Johnson v. Taylor, 106 Ind. 89, 5 N. E. 732; Conger v Miller, 104 Ind. 592, 4 N. E. 300; Miller v. Luco, 80 Cal. 257, 22 Pac. 195. § 123 Equity Procedure 200 asserted by the defendant should be set forth in the bill, in such manner as to show to the court that the elaim amounts to a cloud upon the title of the plaintiff's property.^^" The instru- ment alleged as creating the cloud should be described as fully as known to the plaintiff."^ There should be an allegation in the bill offering to do equity on the part of the plaintiff.-^^ For instance, where suit is brought to cancel a tax deed, the bill must contain an allegation tendering by the plaintiff an amount sufficient to reimburse the defendant for all taxes paid by him with interest thereon. ^^^ § 123. In the matter of creditors' bills. A creditor's bill is usually filed to enforce judgment liens, and occasionally to collect a debt from the estate of a decedent, so that the sufficiency of bills in these two classes (5f cases will be here considered. In the first class of suits the bill must show the existence of a judgment lien,^^'' alleging the court in which it was rendered, the date, its amount and the facts showing it to be a valid and subsisting judgment; '^^ that execution has issued thereon, alleging the date of the execution and its return of "no prop- erty found," or that no execution issued within two years from the date of the judgment. ^^^ It is usual and proper to describe =20 Conger v. Miller, 104 Ind. 592, 223 Morris v. Roseberry, 46 W. 4 N. E. .300; 17 Etic. PI. and Pr. Va. 24, 32 S. E. 1019. 336-338, 340. ^^* ^ Beaeli, Mod. Eq. Pp., § 140; „„' ' ' „ ., ir,. Til cnn ^^a. Passenger & Power Co. v. 2=1 Gage r. Reid, 104 111. 509; p;^,^^^^ j^^ ^^ j.^j^ „j g_ j, jgg JenkR c. Hathaway, 48 Mich. 53fi, 225 Hoo-g, Eq. Pr., § 454. 12 .V. W. 691; Cook v. Friley, 61 226 /,7em. See Dunfee v. Childs, Miss. 1. 45 W. Va. 155, 30 S. E. 102; Fletcher =2= American Freehold Land & l' '^^'■'K^^' ^'t^"^: ^%,^^^- *^*'*'^ ,r i n f 11 no M i«Q S. E. 422, 97 Am. St. Rep. 991; Mortgage Co. v. Sewell, 92 .Ala. 163, ^j^j^g ^ ^^^^^ -^^^ g_ ^ ^g (W. 9 So. 143, 13 L. R. A. 299; Orider Va. 1921). V. American Freehold Land & Mort- In Virginia it is not necessary to gage Co., 99 Ma. 281, 12 So. 775, show a return of nulla bona on an 42 Am. St. Ren. 58; Cage v. Du execution or that the plaintiff has •r, .,. T,, -.o-, cA XT T^ 000 exhausted his legal remedy, in order Puy, 134 111. 132. 24 N. E. 866; to maintain a creditors' bill. Hutcb- Weston V. Meyers, 45 Neb. 95, 63 N. inson v. Maxwell, 100 Va. 169, 40 W. 117. 201 The Bill § 123 in the bill in a general way the property sought to be sub- jected to the lien,^^^ and to allege that the land so described is all the land of the judgment debtor,^^* and that the rents, issues and profits will not, in a reasonable time (in West Vir- ginia five years), pay the debts against it.^^' If the suit be against the estate of a decedent by a general creditor on a purely legal demand, the bill must show by proper averment that the plaintiff has exhausted his legal remedy, or that such remedy, for some good cause, would be inadequate or unavailing,^'" as that the personal estate will not pay the indebtedness of the deeedent.^'^ It must also show on its face who is the widow of the deceased, who are his heirs and devi- sees, and all the known creditors, and an omission in this re- spect renders the bill fatally defective.^'^ It is usual and proper, though perhaps not absolutely essential,^'' for some one or more of the creditors to file the bill on behalf of himself or themselves and all other creditors of the judgment debtor or estate of the decedent, alleging in the bill that the suit is so brought.^'^ And it has been decided that this is the proper S. E. 655, 57 L. E. A. 384, 93 Am. 23o Hale v. White, 47 W. Va. 700, St. Eep. 944. In West Virginia it 35 S. E. 884; Crawford's Admr. v. is not necessary to show that the Turner's Admr., 58 W. Va. 600, 52 execution remained in the oflBcer's S. E. 716, 112 Am. St. Eep. 1014; hands up to the time of the return Price v. Laing, 67 W. Va. 373, 68 day, as the officer may malie his re- S. E. 24. turn of nulla iona before the return 231 Martin v. Eellehan, 3 W. Va. day of the execution; but the debtor 480; Laidley v. Kline, 8 W. Va. is not prevented from showing a 218; Hogg, Eq. Pr., § 109, p. 166 false or collusive return, and thus and autliorities cited; Crawford's showing that suit has been prema- Admr. v. Turner's Admr., 58 W. Va. turely brought. Newlon v. Wade, 43 600, 52 S. E. 716, 112 Am. St. Eep. W. Va. 283, 27 S. E. 244; Eiehard- 1014; Davidson v. Davidson, 70 W. son V. Ebert, 61 W. Va. 523, 525, Va. 203, 73 S. E. 715. 56 S. E. 887. 232 Underwood v. Underwood, 22 227 Hogg, Eq. Princ, § 454. W. Va. 303. 228 Idem; Newlon v. Wade, 43 W. 233 Laidley v. Kline, 23 W. Va. Va. 283, 27 S. E. 944. 565; Hogg, Eq. Pr., §451; post, 229 Idem; Westinghouse Co. v. § 945 and note. Ingram, 79 W. Va. 220, 90 S. E. 234 Martin v. South Salem Land 837. Co., 9'4 Va. 28, 26 S. E. 591; Fin- §124 Equity Procedure 202 method of framing the bill so as to make it strictly a creditor's suit, so as to reach all the debtor's assets available for the pay- ment of his debts.2'^ This, however, is not an indispensable course, as a reference of the cause to a commissioner in chancery to ascertain and report the debts and assets of the debtor, though the bill may not purport to be a creditors' bill, will have the legal effect to convert it into one, inasmuch as a ref- erence of this character will afford all the creditors an opportu- nity to present and prove their claims against the debtor or his estate, and thus give them the right to share in the pro- ceeds of all the property of the common debtor.^'^ § 124. In the matter of divorce. In Virgina and West Virginia no suit for a divorce is main- tainable unless the parties or one of them shall have resided in the state one year next preceding the institution of the suit. The West Virginia statute further provides that, if the mar- ney v. Bennett, 27 Gratt. (Va.) 365; Reynolds v. Bank, 6 Gratt. (Va.) 174; Norris v. Bean, 17 W. Va. 662, 663; Baugher v. Eichelber- ger, 11 W. Va. 227. 236 Baugher v. Eichelberger, 11 W. Va. 227. 236Hudgins v. Lanier, 23 Gratt. (Va.) 494; Arnold v. Caaner, 22 W. Va. 444; Beverly v. Rhode, 86 Va. 418, 10 S. E. 572; Rice v. Hartman, 84 Va. 252, 4 S. E. 621; Laidley v. Kline, 23 W. Va. 565. The following is decided in Laid- ley V. Kline, supra. "A bill filed by a single creditor against the ad- ministrator and heirs of a decedent to subject the real estate descended to the heirs to the payment of his claim, although not in form a cred- itors' bill, will become a creditors' ' suit from the time the court makes an order referring the causp to a commissioner to convene the credi- tors by publication and report the debts of the decedent, and from that time the statute of limitations will cease to run against any and all creditors of the estate of the de- cedent, whether formal parties to the suit or not. In such suit an order of reference operates as a sus- pension of all other suits against the estate of the decedent; and such order may be made in the first cause ready for 'hearing, although not the first suit brought. If a creditor with a knowledge that such order has been made in another suit, brings a separate suit for his own claim, he will be compelled to pay the costs of his suit." See also, Arnold v. Casner, supra. See 1 Bart. Ch. 292 et seq. But see Crawford's Admr. v. Turner's Admr., 58 W. Va. 600, 52 S. E. 716, 112 Am. St. Rep. 1014, where it is held that if a bill is filed to subject the estate of a 203 The Bill §124 riage was not performed in the United States, "no such suit shall be maintainable unless the plaintiff is a citizen of the United States, or the cause of action arose within the United States," and the plaintiff must be "an actual bona fide citizen of this state, and shall have resided in the state at least one year immediately preceding the bringing of the suit." ^'' These provisions are jurisdictional and the bill should contain allega- tions bringing the case within some one of the jurisdictional alternatives provided. A certain period of domicile is required by the laws of most of the states, and this jurisdictional fact should be alleged in the bill in strict accordance with the pro- visions of the statute.^^* The allegation of the statute as to the matter of residence should be such as to cover the intent and meaning of the statute. ^^' The law contemplates an actual res- idence and not a mere legal one.^*" The county prescribed by statute in which the suit must be brought is likewise a jurisdictional fact,^*^ and the residence decedent, "it must be upon behalf of the plaintiff and all other cred- itors." 237 w. Va. Code, 1916 (see Acts 1915, c. 73), c. 64, §7; Va. Code, 1904, § 2259. 238 7 Enc. Forms, 4, note 3, citing Gray v. Gray, 15 Ala. 779; Bennett V. Bennett, 28 Cal. 602; Burns v. Burns, 13 Fla. 369; Phelan v. Phelan, 12 Fla. 449; Powell v. Powell, 53 Ind. 513 ; Cole v. Cole, 3 Mo. App. 571; Batchelder v. Batch- elder, 14 N. H. 380; Smith v. Smith, 12 N. H. 80; Greenlaw v. Greenlaw, 12 N. H. 200; Mix v. Mix, 1 Johns. Ch. (N. Y.) 204, 1 Law. Ed. 113; Lattier v. Lattier, 5 Ohio 538; Irwin v. Irwin, 2 Okla. 180, 37 Pae. 548; Raymond v. Ray- mond, 74 Tex. 414, 12 S. W. 90; Luce V. Luce, 15 Wash. 608, 47 Pac. 21 ; Blankenship v. Blankenship, 125 Va. 595, 100 S. E. 538. ^39 Collins V. Collins, 53 Mo. App. 470. "An allegation 'that the plaintiflf is now, and has been for more than two years last past, a bona fide resident of the state of Indiana, and for more than six months last past a bona fide resi- dent of the county of Allen,' is a suflBcient compliance with a statute requiring that the plaintiflf 'at the time of filing such petition, is and shall have been a bona fide resident of the state for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months immediately pre- ceding the filing of such petition.' " Poison V. Poison, 140 Ind. 310, 39 X. E. 498. 240 Hogg, Eq. Pr., §488, p. 649; W. Va. Code, 1915 (Acts 1915, c. 73), c. 64, §7. 241 As to the county of West Vir- ginia in which suit must be brought. § 124 Equity Peoceduke 204 of the parties relating to this subject should also be averred in the bill.2" There should be an allegation of the marriage of the parties, and the date and place thereof ; ^*' " but it is not necessary to allege all the facts showing the validity of a celebrated mar- riage, such as obtaining a license, a ceremony in the presence of witnesses, the official character of the person who performed the ceremony, or the fact that such officer made a return of his acts, as such facts are probative and not the ultimate facts required in a pleading." ^^^ Nor is it necessary to negative any of the defenses, as that plaintiff has not condoned or provoked the alleged offense or that the alleged adultery was not committed with the plaintiff's connivance or collusion; nor need the performance of plaintiff's marital duties be alleged.^^^ The bill, in alleging the grounds for divorce, must state sufficient facts to constitute a cause for divorce, as fixed by the terms of the statute.^" Thus, if adultery be the ground, it should be alleged with reasonable certainty as to time and plaee,^^^ and the name of the particeps criminis if known, ^*' see W. Va. Code, 1916 (Acts 1915, Farley v. Farley, 94 Ala. 501, 10 c. 73), u. 64, §7; Va. Code, 1904, So. 646, 33 Am. St. Eep. 141. § 2259. See ante, § 10, note 68. -*'' Hogg, Eq. Pr., § 498. 242 Lattier v. Lattier, 5 Ohio 538 ; 2*^ Wem. Irwin- V. Irwin, 2 Okla. 180, 37 Pac. 2*^ Conant v. Conant. 10 Cal. 249, 548; Haymond v. Haymond, 74 Tex. 70 Am. Dec. 717; Miller v. Miller, 414, 12 S. W. 90; People v. Mc- 92 Va. 196, 23 S. E. 232; Codd v. Cafifrey, 75 Micli. 115, 42 N. W. Codd, 2 Johns. Ch. (N. Y.) 224, 1 N. 681; Blankenship v. Blankenship, Y. Ch. L. Ed. 356 and note. 125 Va. 595, 100 S. E. 538. In Miller v. Miller, supra, Card- 243 Hogg, Eq. Pr., §498; White well, J., in the course of his opinion, V. White, 5 N. H. 476; Lattier v. considering the question of the suffi- Lattier, 5 Ohio 538. ciency of the allegation of adultery 244 Idem. "An allegation that on made in the pleadings of that ease, a. named day 'she was lawfully and says: "Error is also assigned to legally married to said defendant' the ruling of the court below in sus- is a suflScient averment of plaintiff's taining the demurrer to the charo-e marriage, even though followed by ^f adultery contained in the bill, the statement of facts showing that m, 1 • her consent was procured by fraud ■'■"^ charge is as follows: 'Your and deception, for which she might oratrix is now informed, believes, have repudiated the marriage." and charges, that since her said 205 The Bill §124 but if not it is sufficient to allege that the defendant committed the act with a person unknown to the plaintiff.^^' In alleging the time it is sufficient to aver the month and year without specifying the day.^^" marriage her said husband has been guilty of adultery on many occa- sions, and that she has not lived or cohabited with him since she so learned that fact.' A charge could not be more general in its nature than this. It is vague, indefinite, and fails to give the defendant such notice of the charge that he is to meet as is necessary to enable him to prepare to meet it. In the case of Wood V. Wood, 2 Paige, 113, where by the answer the recriminat- ing charge of adultery was made, Chancellor Walworth says: 'The only safe and prudent course is to require the charge, whether recrimi- nation or crimination, to be stated in the pleadings and in the issues in such manner that the adverse party may be prepared to meet it on the trial. If the persons with whom the adultery was committed are known, they must be named, ■* * * arid the adultery must be charged with reasonable certainty as to the time and place. If they are unknown, the fact should be stated, * * * and the time, place, and circum- stances under which the adultery was committed should be set forth. Neither party has the right to make such a charge against the other on mere suspicion, relying on being able to fish up testimony before the trial to support the allegation. When information sufficient to jus- tify the charge is given, the party will be possessed of the requisite facts to put the charge in a dis- tinct and tangible form in the rec- ord.' See also, Bish., Mar. and Div. (Eighth Ed.), §606; Clutch v. Clutch, 1 N. J. Eq. 474; Burr v. Burr, 2 Edw. Ch. 448; Marsh v. Marsh, 84 Am. Dec. 168. We do not, however, agree that the name of the person with whom the adul- tery was committed need be given, but in all other respects we concur fully in the rule as stated by Chan- cellor Walworth, and therefore we are of opinion that the demurrer to the bill, as to the charge of adul- tery, was properly sustained by the court below.'' But see Anderson v. Anderson, 78 W. Va. 118, 88 S. E. 653, where the rule adhered to in Miller v. Miller, supra, is criticized as too technical. 2*8 Miller v. Miller, 92 Va. 196, 23 S. E. 232; Scheffling v. Schef- fling, 44 N". J. Eq. 438, 15 Atl. 577; Anderson v. Anderson, 78 W. Va. 118, 88 S. E. .653. But in Virginia the name of the particeps criminis need not be alleged. Miller v. Mil- ler, supra. 249 Farley v. Farley, 94 Ala. 501, 10 So. 646, 33 Am. St. Rep. 141; Choate v. Choate, 3 Mass. 391 ; Farr V. Farr, 34 Miss. 597, 69 Am. Dec. 406 ; Germond v. Germond, 6 Johns. Ch. (N. Y.) 347, 2 N. Y. Ch. L. Ed. 146; Miller v. Miller, 92 Va. 196, 23 S. E. 2.32. 25" Scheffling v, Scheffling, 44 N. .1. Eq. 438, 15 Atl. 577; Mitchell v. Mitchell, 61 N". Y. 398. § 124 Equity Procedure 206 If the ground of divorce be cruelty, the facts constituting it, and not the pleader's conclusion from unrevealed facts, must be averred with reasonable certainty.^'^ It is sufficient to allege abandonment or desertion in the language of the statute, stat- ing when it occurred, and if the suit be for a divorce from the bonds of matrimony, the continuous period required in such cases,^^^ and the same rule applies when drunkenness is relied on as the ground.^^^ And it is held that in cases of desertion the bill should allege the good conduct of the plaintiff.^^* "If the ground be that the defendant has been sentenced to eortfinement in the penitentiary, the time, place, the cause for which, and by what authority, and the term of the sentence, should appear in the bill ; or if the ground be that the defend- ant without the knowledge of the plaintiff, had, prior to the marriage, been convicted of an infamous offense, the bill should set out the court which rendered the sentence, and it must also appear that the crime is infamous, by direct averment that it is 'infamous,' or by the use of such language that it appears so on the face of the bill." ^^^ If the ground of divorce be "impotency," "it should appear by proper averment, of what the impotency consists ^^^ and that it is incurable ; ^" or if pregnancy antedating the marriage be 251 Hogg, Eq. Pr., §498, p. 608; 2S4 EpHng v. Epling, 1 Bush. Haynor v. Haynor, 112 Va. 123, 70 (Ky.) 74; Yallaly v. Yallaly, 39 S. E. 531. As to what facts con- Mo. 490; White v. White, 45 N. H. stitute a cruelty, see Goff v. Goff, 121. 60 W. Va. 9, 53 S. E. 769 ; Maxwell 2S5 Hogg, Eq. Pr., § 498, p. 668. V. Maxwell, 69 W. Va. 414, 71 S. ^saMem; 7 Stand. Pro. 768. E. 571. ==^ Idem. In Barringer v. Bar- 252 Hogg, Eq. Pr., §498, p. 868; ringer, 69 N". C. 179, it was held Burk V. Burk, 21 W. Va. 445; Ward that the following allegation was V. Ward, 20 Wis. 252. As to what sufficient to entitle the plaintiff to constitutes a desertion, see Bacon V. the relief sought: "That almost Bacon, 68 W. Va. 747, 70 S. E. 762; immediately after their said mar- Hall V. Hall, 69 W. Va. 175, 71 S. riage the plaintiff discovered that E. 103, 34 L. R. A. (N.S.) 758. his said wife was entirely impotent 253 Idem; Burns v. Burns, 13 Fla. and incapable of sexual intercourse, 369; Brown v. Brown, 38 Ark. 324; from some malformation or organic Reading v. Reading, 96 Cal. 4, 30 interruption or derangement, the Pac. 803; 7 Stand. Pro. 767. name or nature of which was and 207 The Bill §125 the ground, the averment should follow the language of the statute and aver the name of the person by whom the wife became enciente and the time and place if known. But if the ground be the wife's prostitution prior to the marriage or the husband's licentiousness prior thereto, we incline to the opin- ion that the allegation of these causes in the words of our divorce law would be sufficient, but we do not rest our view upon any decided case. Therefore it is suggested that it would be safer, in the absence of authority, to set out the facts and circumstances showing the prostitution or licentiousness. ' ' ^^* It is usual to set out in the bill the names and ages of the children, if any,^^' and if their custody is to be determined, it is advisable to allege the facts pertinent to such issue.^''° If it is desired to enjoin the husband from disposing of his property, so as to preserve the same pending the suit, the proper allegations authorizing an in.junction should be made in the bill.^^^ And in West Virginia, every bill in a divorce suit must be verified by the oath of the plaintiff in person.^'^^ § 125. In the matter of dower (assignment of). The bill for the assignment of dower should allege the plain- tiff's marriage to the deceased, the seizin in fee ^^' of the hus- still is unknown to plaintiff, except 2''8 Hogg, Eq. Pr., §498, p. 669. that it utterly prevented all penc- -■•<> Idem; Lattier v. Lattier, 5 tration and sexual pnjoT,Tnent." Ohio .TSS. "Where a bill filed by the husband 2011 Vermilye v. Vermilye, 32 for divorce on the ground of the al- Minn. 499. leged irapotency of the wife, alleged -"i Hogg, Eq. Pr., §498, p. 669; that the wife was a, hermaphrodite. Remington v. Superior Ct., 69 Cal. and when sexually excited no male 633, 11 Pac. 252; Wharton v. Whar- could have sexual intercourse with ton, .57 Iowa. 696, 11 !^. W. 638. her, and charged that so the de- 2i'2 W, Va. Code, 1910 (Acts 191,5, fendant was naturally impotent at u. 73), c. 64, §8. the time of the marriage and so -83 As to the sufficiency of an al- continued, it was^ held upon demur- legation of freehold in order to sup- rer that the bill failed to show that port a claim for decree. Tucker, J., the malformation complained of was in .'\mbler v. Norton, 4 H. and M. such as to necessarily constitute im- (Va.) at page 42, says: potency." Peipho v. Peipho, 88 111. "But an exception was taken to 438. the count by Mr. Williams, which at §126 EQUITY Peocedure 208 band during coverture of the real estate described in the bill, his alienation of it during his lifetime, or his ownership of it at the time of his death, the possession of the land by the de- fendant or his claim of title and his failure or refusal to assign dower on the demand made by the plaintiff and her widowhood of decedent at the time of his death.^** If the land was aliened during the lifetime of the husband, the alienee's name should be given in the bill as well as the name of the heirs at law who are seized of the land by inheritance.^^^ § 126. In matters requiring the doing of equity on the part of the plaintiff as a condition to relief. If equity imposes a duty to be performed or the discharge of some obligation by the plaintiff in order to entitle him to any first appeared to ine to contain great weight, to-wit, that the de- mand is of the third part of a free- hold, and not of a freehold of in- heritance or of an inheritance in fee simple. But the cases cited hy Mr. Call, from Booth on Real Actions, IGG; Co. Entries, 170 179; Eastall's Entries, 229, as well as in later books of practice (Crompton's Pr. 316; 10 Went- worth's Plead. 157, 163) and the decision in Davenport v. Tyrrel, 1 Black. Eep. 679, that where a seizin is alleged in pleading, it shall be intended a seizin in fee; for that in pleading, the larger estate is al- ways presumed (which last case I recollect to have heard Judge Lyons rely on in this court) have fully satisfied me that there is nothing in that exception." In Waters v. Gooch, 6 J. J. Marsh (Ky.), 586, 22 Am. Dec. at p. 112, the court in its opinion Bays: "To entitle a demandant to dower, her account must aver, in sub- stance, that she was the wife, and that the husband was, during cover- ture, seized of a freehold interest at least. See Booth on Eeal Actions; Saunders, supra; and Ambler and Wife V. Norton, 4 Hen. and M. 42. It is true that a freehold, may be only a life estate; but it is a maxim in pleading that a freehold shall, •prima facie, be understood to mean the largest estate in fee. The count in this case avers only, that the husband had 'purchased' the land. That is not equivalent to an aver- ment that he had acquired a free- hold interest; because he might have purchased only an estate for years, of which his wife would not have been dowable." 264 Wall v. Hill, 7 Dana (Ky.) 173; Wright v. Wright, 8 N". J. Eq. 143; Forrester v. Forrester, 38 Ala. 119; Davenport v. Farrar, 2 111. (1 Scam.) 314; Fritz v. Tudor, 2 Duv. (Ky.) 173; McGee v. Mc- Gee, 4 Ired. (N. C.) 105. 266 Forrester v. Forrester, 38 Ala. 119. 209 The Bill § 127 right to relief, the discharge of such duty or obligation or a readiness or offer to do so, should be alleged in the bill, or a sufficient excuse for a failure to do so should be averred there- jjj 2G6 Thus in a suit to set aside a tax deed, as already shown, the bill must allege a tender by the plaintiff of an amount suffi- cient to reimburse the defendant for all taxes paid by him and the interest thereon. ^^' So in a suit to relieve from a forfeiture for the payment of rent, the bill should allege a tender of the rent admitted to be due.^"' Independently of statute,^^' a party seeking relief in equity against a judgment at law or other evidence of debt because of the taint of usury cannot be relieved except upon the terms of paying what is actually due the defendant, exclusive of the usury, and an offer so to do ought to be averred in the bill.^'" This general principle of equity, that "he who seeks equity must do equity," is further illustrated in the cases.^''^ § 127. In the matter of fraud generally. Fraud is never presumed, and in order to entitle a party to relief either at law or in equity on such ground it is essential that the fraud be distinctly alleged so that it may be put in issue and evidence received concerning it.-"'^ A mere general 266 Fletcher, Eq. PI. and Pr., § 91. 3 Wend. (N. Y.) 637, 10 Law. Ed. 2e7 Ante, § 122. 4fl.'5 ; Knibb v. Dixon, 1 Rand. (Va.) 2«8 Sheets v. Selden, 7 Wall. (U. 249; Keran v. Trice, 75 Va. 690; S.) 416, 19 L. Ed. 166; Beecher v. Meek v. Spracher, 87 Va. 162, 12 S. Beeeher, 43 Conn. 557. K. 397; Pardee & Curtin Lumber 269 Post, § 149. Co. V. Rose, 105 S. E. 792 (W. Va. 2TO Fanning v. Dunham, 5 Johns. 1921). Chancellor Kent, in James Ch. (N. Y.) 122, 1 Law. Ed. and v. McKernon, 6 Johns. (N. Y.) 543, the many cases cited in the note; 564, 4 Law. Ed. 215, speaking as Zeigler v. Scott, 10 Ga. 389, 54 Am. to a bill charging fraud, says: Dec ^9"; and extended nnte '"^^^'^ ^ood sense of pleading and the Dec. d95, and extended note. language of the books both require 27iHaydon v. Goode, 4 H. & M. that every material allegation of (Va.) 460; Massie's Admr. v. this kind should be put in issue by Heiskell's Trustee, 80 Va. 789 ; Kerr the pleadings, so that the parties V. Kerr, 84 Va. 154, 5 S. E. 89. "Y-'^'' "^."^^ appraised of the essen- iicn, u , a. io^, u kj. .-.. u./. ^j^j inquiry, and may be enabled to 27ia Gouverneur v. Elmendorf, 5 collect testimony, aiid frame inter- Johns. Ch. (N. Y. ) 79, 1 Law. Ed. rogatories, in order to meet the 1016; Forsyth v. Clark and Stewart, question. Without the observance of § 128 Equity Procedure 210 allegation of fraud is not sufficient."^ The facts relied on to constitute it must be stated in the bill,"' though not what is merely the evidence of it,"* and the facts stated must not be inconsistent with others in the bill; so that a statement of facts, which in themselves constitute fraud, must not be fol- lowed by statements which are contradictory or inconsistent with such facts. ^'^ § 128. In the matter of fraudulent and voluntary conveyances. A bill to set aside a conveyance in fraud of the rights of creditors should allege a valid debt of some character, whether founded on contract or tort,^'' of which the plaintiff has a right to enforce the payment as against the fraudulent debtor; set forth the fraudulent conveyance or transfer;^'" describe the property conveyed or exhibit the instrument of transfer or conveyance, or a copy of it, as part of the bill ; ^'* and contain an allegation of the fraudulent intent with which the convey- ance or transfer was made,^^^ and, if for a valuable eonsidera- this rule, the use of pleading be- 276 Hogg, Eq. Pr., § 186, p. 287. comes lost, and parties may be As to who is a creditor, see Carr v. taken, at the hearing, by surprise." Davis, 64 W. Va. 522, 63 S. E. 326, 272 Vance Shoe Co. v. Haught, 41 22 iL. R. A. (N.S.) 58. The bill W. Va. 275, 23 S. E. 553; MePeck should show that the debt was due V. Graham, 56 W. Va. 200, 49 S. when the suit was instituted, and E. 125; Pardee & Curtin Lumber is demurrable if it showa that the Co. V. Rose, 105 S. E. 792 (W. Va. debt has been paid off before the 1921 ) bill was filed. Wildasin v. Long, 74 273 Dickenson v. Bankers' Loan & \. J^' ^f , 82 S. E. 205. A bill Investment Co., 93 Va. 498, 25 S. E. '■''^"'^ ^^\^''^^ ^ conveyance a^ 548; Pyles v. Furniture Co., 30 W. '^^''f^ y,"'°^Vi^^Fiy, "°t f''^'"'!"!™*' Va 123, 2 S. E. 909; BiUingsley v. f"«* ,^^°^, that the debt was eon- Jfenear, 44 W. Va. 651, 30 S E. 61; ^■''^f^^ ^^^^""^ ^^e conveyance was TT7 11 u i -D 1 in ■,, T>„« made. JVlauch Chunk Nat. Bank v. Sandt"^fr'a:t?on^ct:T6'w°-Va.^r8" f^If^^^' ^^ W. Va. 310, 81 S. E. 48 S. E. 746; Pardee & Curtin ^^''^• ILumber Co. v. Rose, 105 S. E. 792 "^ Hogg, Eq. Pr., § 186, p. 287. (W Va 1921). 278 /dem. See also, Holsberry v. 274 Vance Shoe Co. v. Haught, 41 P^'j^f' ^^ W. Va. 186, 18 S. E. at W. Va. 275, 23 S. E. 553. ^'^.tt t, t> . ,„ 275 Men, ; Dickenson v. Bankers' "'Hogg, Eq. Pr. § 186. Loan & Investment Co., 93 Va. 498, 25 S. E. 548. 211 The Bill §128 tion, such fraudulent intent must be alleged on the part both of the grantor ^^'' and the grantee. ^^^ But if the conveyance is a voluntary one the grantee's knowledge of the grantor's fraud- ulent intent need not be alleged.^*^ "An allegation that the conveyance was made with the 'in- tent to hinder, delay and defraud the creditors' of the grantor, and especially the plaintiff, and that the grantee 'knew of the grantor's indebtedness and of his purpose to defraud his credi- tors, and that he received the deed with such knowledge and with the purpose to aid him in the perpetration of the fraud,' is a sufficient averment of the grantor's intent to defraud his creditors and the grantee's participation therein. ^^^ "The bill may be properly drawn so as to allege a voluntary transfer of the property to the grantee, as well as upon a val- uable consideration, though with a fraudulent intent on the part of the grantor of which the grantee had knowledge, set- 280 Sides V. Schaiff, 93 Ala. 106, -9 So. 228; Threlkel v. Scott, 89 Cal. 351, 26 Pac. 879; Nat. State Bk. V. Vigo, 141 Ind. 352. 40 N. E. 799, 50 Am. St. Eep. 330. It is sufficient if the bill sub- stantially charges a fraudulent com- bination to hinder and delay cred- itors in the collection of their debts. And where the facts stated show the fraudulent act and intent, it is suf- ficient averment of fraud, although the bill doe> not state that the act was fraudulent. Almond v. Wilson, 7.T Va. 613. 281 Seelman v. Ilongrland, 19 Colo. 231, 34 Pac. 995; Willis v. Thomp- son, 93 Ind. 62; Johnson v. John- son, 3 Mete. (Mass.) 65; Sutton & Co. V. Christie, 60 W, Va, 1, 53 S. E. 602; Laidley v. Reynolds, 5S W. Va. 418, 52 S. E. 405; Mauch Chunk Nat. Bank v; Shrader, 74 W, Va. 310, 81 S. E. 1121; Wheby v. Moir, 102 Va. 875, 47 S. E. 1005. "A general charge nf fraud in a bill is not sufficient. There must be given in addition to the general ch:irgo, the facts constituting the fraud, though not what is merely evi- dence.'' Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553. But see American Net & Twine Co. v. Mayo, 07 Va. 182, 33 S. E. 523, where it is held sufficient to allege that "a deed was made with intent to hinder, delay and defraud credi- tors." 282 York V. Kockwood, 132 Ind. 358, 31 N. E. 1110; Graham Grocery Co. V. Chase, 75 W. Va. 775, 84 S. E. 785, and cases cited; Kinnison V. Scott, 82 W. Va. 287, 95 S. E. 952. 283 Hogg, Eq. Pr., § 186, p. 287. Although it is better practice spe- cifically to allege fraudulent intent on the part of the grantee, a gen- eral allegationof fraud in the trans- action has been held sufficient. American Net & Twine Co. v. Mayo, i)7 Va 182, 33 S. E. 523; Flook v. Armentrout, 100 Va. 638, 42 S. E. 686. § 129 Equity Procedure 212 ting forth in the same bill these two grounds of equitable juris- diction in separate paragraphs. It is a sufficient allegation of the former of these grounds to allege that the grantor made the conveyance without any consideration, and that the same was made voluntarily, with the intent on the part of the grantor to hinder, delay and defraud his creditors. "If the plaintiff in a bill to set aside a fraudulent convey- ance has reduced his claim against the fraudulent grantor to judgment, he need not allege the issue of execution and the return of 'no property found out of which the judgment could be satisfied,' as the creditor may assail a fraudulent conveyance in the Virginias ^** without waiting to reduce his claim to judg- ment. "It is also suggested that in the draft of the bill that any prominent facts usually accompanying a fraudulent transfer of property, such as the grantor's insolvency, his retention of the possession of the property, or the relationship of the par- ties or any other matter treated as pointing to the probability of a fraudulent intent on the part of the grantor, be set forth in the bill."286 § 129. In matters of injunctions. Only some general principles and a few of their illustrations can be given here of the essentials of bills for injunctions. A bill for an injunction must set forth very clearly and specifi- cally the matter relied upon for the issuance of the injunction, as inferences which do not necessarily flow from the allegations will not be indulged to aid the pleader.^^^ The averments should be positive and not upon information and belief.^*' 284 Va. Code, 1904, § 2460; W. Va. ences of fraud. The Citizens' Bank Code, 1913, c. 133, §2; Halfpenny of Weston v. Wilfong, 66 W. Va. V. Tate, 65 W. Va. 296, 64 S. E. 470, 66 S. E. 636. 28; Murphy v. Fairweather, 72 W. 286 2 Spelling, Inj., § 982. Va. 14, 17, 77 S. E. 321. . 2" Longdale Iron Co. v. Quesen- 286 Hogg, Eq. Pr., § 186, pp. 287-8. berry, 50 W. Va. 454, 40 S. E. 487, Such badges of fraud, however, are in the opinion of Brannon, J. mere circumstances raising infer- 213 The Bill 129 But Mr. Spelling says, "Where the facts lie only in the knowl- edge of the defendant, the plaintiff in a petition for an injunc- tion may state, as in cases where discovery is sought., that he is informed and believes that a fact is true, and therefore charges it to be true ; such case being an exception to the gen- eral rule requiring specific allegations of the facts on which the injunction is prayed. "^^* As a general rule, a court of equity will not grant an injunction unless the facts averred in the bill show that if the injunction be denied the plaintiff will suffer an irreparable injury for which he has no adequate rem- edy at law.^*^ The mere averment of an irreparable injury, as a conclusion of law, is not sufficient. ''" Thus, if the bill seeks an injunction to prevent a trespass to real estate, it must aver undisputed title in the plaintiff and that irreparable injury will be sustained by him if the injunction is not awarded ;^''^ 288 2 Spelling, In]., §082. 289 State Bk. of Neb. v. Eohren, 55 Neb. 223, 75 N. W. 543 ; Chicago City R. Co. V. General Electric Co., 74 111. App. 465; Mead v. Stirling, 62 Conn. 586, 27 Atl. 591, 23 L. R. A. 227; Farland v. Wood, 35 W. Va. ■458, 14 S. E. 140; Dickenson v. Bankers' Loau & Investment Co., 93 Va. 498, 25 S. E. 548; Hogg, Eq. Pr., § 241 ; Becker v. McGraw, 48 W. Va. 539, 37 S. E. 532 ; Pence v. ■Carney, 58 W. Va. 200, 52 S.'e. 702, •6 L. R. A. (X.S.) 260, 112 Am. St. Rep. 963 ; South & W. R. Co. v. Va. & So. R. Co., 104 Va. 323, 51 S. E. 843. 290 State Bk. of Neb. v. Rohren, ,55 Neb. 223, 75 N. W. 543; King V. Pardridge, 60 111. App. 475; Becker v. McGraw, 48 W. Va. 539, 37 S. E. 532; South & W. R, Co. v. Va. & So. R Co., 104 Va. 323, 51 S. E. 843. 291 McMillin v. Ferrell, 7 W. Va. 223; Cox V. Douglass, 20 W. Va. 175; Lazzell v. Garlow, 44 W. Va. 466, 30 S. E. 171; Curtin v. Stout. 57 W. Va. 271, 50 S. E. 810; Pardee & Curtin Lumber Co. v. Odell, 71 W. Va. 206, 76 S. E. 343; Gamble v. Kennedy, 80 W. Va. 694, 93 S. E. 807; Columbia Gas & Electric Co. V. Moore, 81 W. Va. 164, 93 S. E. 1051. See Cumbee v. Ritter, collect- ing the Virginia cases, 123 Va. 448, 96 S. E. 747. In Virginia, a prima facie show- ing of title is sufficient. "A plain- tiff in a suit to restrain a trespass need not allege that his title is un- disputed or lias been adjudicated. If he relies upon a paper title, he sliould generally exhibit his title papers, or such of them at least as will make out a prima facie case of title. If he relies upon possession, he should state the facts upon which he bases his claim of possession, so that in either case tlie court can see from the title papers filed or the facts stated that he has a prima facie title." Ely v. Johnson, 114 Va. 31, 75 S. E. 748. If the trespass consist of in,jury to timber upon the realty, the West Virginia Supreme Court, overruling numerous earlier decisions, holds that it is not necessary to allege in- solvency of the defendant or any §129 Equity Proceduee 214 and the facts constituting the mischief complained of must be set forth in the bill.^'^ The fact of irreparable injury may be the insolvency of the defendant committing the trespass or other injury, rendering' a judgment against him unavailing, and should be averred in the bill.^'' And an injury will b& treated as irreparable when it cannot adequately be redressed by action at law.^^'' But it is not in all cases that equity re- quires an allegation of irreparable injury on the part of the- plaintiff before an injunction will be awarded.^'' Thus, the other fact showing lack of an ade- quate remedy at law. The act speaks for itself. Pardee v. Camden Lumber Co., 70 W. Va. 68, 73 S. E. 82. The rule in Virginia is contra. Bledsoe v. Eobinett, 105 Va. 723, 54 S. E. 861. Although the title be in dispute, equity will enjoin a trespass to real estate pending litigation of the title in a legal forum. In such a case, the bill should aver that an action is pending, or is about to be insti- tuted, to adjudicate the disputed title, stating the nature of the action and the court wherein pend- ing or to be prosecuted. Freer v. Davis, 52 W. Va. 1, 43 S. E. 164, 59 L. E. A. 556, 94 Am. St. Ttep. 895; Eakin v. Taylor, 55 W. Va. 652, 47 S. E. 992. See Gamble v. Kennedy and Columbia Gas & Elec- tric Co. V. Moore, supra. And even these allegations are unnecessary where the dispute depends upon a question of law, c. g., construction of title papers, and in any event is to be determined by tlie court with- out the aid of a jury. Myers v. Bland, 77 VV. Va. 546, 549, 87 S. E. 868, and cases cited. 2»2 Selioonover v. Bright, 24 W. Va. 698; Watson v. Ferrell, 34 W. Va. 406, 12 S. E. 724; Farland v. Wood, 35 W. Va. 458, 14 S. E. 140. 293 Sisson, C. & Co. v. Johnson, 99 Cal. XIX, 34 Pac. 617; Tomlinson V. Eubio, 16 Cal. 202; Miller v. Burket, 132 Ind. 469, 32 X. E. 309; Cicero Lumber Co. v. Cicero, 176 111. 9, 37 N. E. 758, 68 Am. St. Eep. 155, 42 L. E. A. 696; Xew York, X. H. & H. E. Co. V. Scovill, 71 Conn. 136, 41 Atl. 246, 71 Am. St. Eep. 159, 42 L. E. A. 157. Or the act itself may show its irreparable na- ture without further allegation, as the destruction of timber. Pardee- V. Lumber Co., 70 W. Va. 68, 73 S. E. 82. 294 Lowe V. Prospect Hill Ceme- tery Association, 58 Xeb. 94, 78 X. W. 488, 46 L. E. A. 237; Parde& V. Lumber Co., 70 W. Va. 68, 73 S. E. 82. sssSearle v Lead, 10 S. D. 312, 73 X. W. 101, 39 L. E. A. 345; State, ex rel. McCain v. Metschan, 32 Or. 372, 46 Pac. 791, 41 L. E. A. 692; Lyon V. Lyon, 102 Ga. 453, 31 S. E. 34, 42 L. E. A. 194, 66 Am. St. Eep. 189; Carpenter v. Capital Elec- tric Co., 178 111. 29, 52 X. E. 973, 69 Am. St. Eep. 286, 43 L. E. A. 645; Stovall v. McCutcheon & Co., 21 Ky. L. E. 1317, 54 S. W. 969, 92 Am. St. Eep. 373, 47 L. E. A. 287; Chicago v. Collins, 175 111. 445, 51 X. E. 907, 67 Am. St. Eep. 224, 49 L. R. A. 408. 215 The Bill § 130 injury threatened need not be irreparable by damages in an action at law, in order to secure relief in equity to prevent interference with easements."" "It is sufficient ground for such relief that the injury cannot be adequately compensated in damages in a suit at law; or that the injury is a continuing one, and compensation for it at law could only be had by suc- cessive suits, .when relief in equity will be granted to prevent a multiplicity of suits and vexatious litigation. In the latter case the ground for interference is really that the law affords no adequate remedy, for the remedy which it affords is only an action for past damages, to be repeated so often as the cause of action is repeated."^'' So, too, if a lessee by the terms of his lease is restricted to a particular use of the demised prem- ises, he will generally be restBained from any other use of them, even though no irreparable injury will be shown to result from the breach of the lease-contract. ^^^ If the injunction be to restrain an action at law, the bill should set forth the precise state of the pleadings therein and the court in which the action is pending.^'' § 130. In the matter of setting aside or impeaching judgments and decrees. In a suit to impeach or enjoin a judgment or decree, the bill must set forth the judgment or decree complained of,^°° the proceedings which led to the rendition of such judgment or decree,'"' and the ground upon which the relief is sought. ^"^ Thus, if fraud be the ground, the facts constituting it must be averred;'"' it must be shown that there is no other foundation 298 Jones on Easements, §879; Eq., 420; Prince's Admr. v. Mc- Porter v. Mack Mfg. Co., 65 W. Va. Lemore, 108 \'a. 269, 277, 61 S. ]■:. 636, 64 S. E. 853; Mary Helen Coal 802. Co. V. Hatfield, 75 W. Va. 148, 152, snldem. S3 S. E. 292, and cases cited. 302 Idem; also Knapp v. Snyder, 297 Jones on Eastments, § 879. 15 W. Va. 434; Davis v. Landcraft, 298 Hogg, Eq. Pr., § 236. 10 W. Va. 718. 289 2 Spelling, Inj., § 984. sos Davis v. Landcraft, 10 W. Va. aooKeran v. Trice, 75 Va. 690; 718. Boyden v. Reed, 55 111. 458; Adams, §131 Equity Procedure 216 for the judgment or decree than the fraud charged in the bill ; '"* and the fraud must consist in something extrinsic and collateral to the matter actually tried in the former suit, or so in issue that it might have been tried.'"^ The fraud must con- sist in the act of obtaining the judgment — not fraud in th& claim upon which the judgment is predicated.'"* And the fraud recognized by law as sufficient to set aside a judgment or decree must be actual fraud as distinguished from that known as legal fraud.'"'' A bill to impeach a decree for fraud is an original bill in the nature of a bill of review, but unlike the latter, may be filed without leave of court previously ob- tained.'"^ § 131. In matters involving la^hjes. Inasmuch as the defenses of the statute of limitations and laches may be made by demurrer in most jurisdictions,'"^ it is always advisable, if there are grounds which take a case out so^Colsen v. Leitch, 110 111. 504; HoUinger v. Eeeme, 138 Ind. 363, 36 N. E. 1114, 24 L. R. A. 46, 46 Am. St. Eep. 402. 305 Black V. Smith, 13 W. Va. 780; U. S. V. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Mayor, etc., of New York v. Brady, 115 N. Y. 599, 22 N. E. 237; Ward v. Quinlivin, 57 Mo. 425 ; Eaton v. Hasty, 6 Neb. 419, 29 Am. Rep. 365; Davis v. Headley, 22 N. J. Eq. 115. 306 Zellerbach v. AUenberg, 67 Cal. 296, 7 Pac. 90S; State v. Holmes, 69 Ind. 577; Shotterkirk v. Wheeler, 3 Johns. Ch. (N. Y.) 275, 1 Law. Ed. 616; Knapp v. Snyder, 15 W. Va. 434; Braden v. Reitzen- berger, 18 W. Va. 286. 307 "Where it is sought to set aside or annul a regular j.udgment or decree upon the ground that it was obtained by fraud practiced upon a party or upon the court dur- ing the trial, or in prosecuting the suit, or in obtaining the judgment or decree, it is necessary, it is said, that the bill should state a case which shows actual fraud (Kerr, Fraud and Mistake, 353; Patch v. Ward, 3 Ch. App. Cases L. N". 203. See also, Milford and Taylor's PI. Pr., 190, 191; U. S. v. Throckmor- ton, 98 U. S. 61) ; and that the suit should be brought for the express purpose of impeaching the decree, otherwise it will be regarded as a collateral attack. 2 Freeman on Judg- ments (Fourth Ed.), 336; 12 Am. and Eng. Enc. 6f Law, 147j ; Mil- ford & Taylor's PI. and Pr., 190-1." Harrison v. Wallon, 95 Va. 721, 30 S. E. at p. 372. 308Keran v. Trice, 75 Va. 690; Prince's Admr. v, ^McLemore, 108 Va. 269, 61 S. E. 802. 300 Post, § 327. '21 ( The Bill §131 of the statute of limitations, that they be alleged in the bill, and thus avoid the defense available on demurrer.'^" So where there has been apparent laches in the prosecution of a suit in equity, the facts and" circumstances which will explain or excuse the laches or will bring the case within any exception to the rule against unreasonable delay, or the assertion in equity of stale demands, such excuse or explanation should be stated in the bill. And where it is sought to avoid the imputation of laches, the plaintiff should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent fraudulently to keep him in ignorance ; and how and when he first came to a knowledge of the matters alleged in his bill. There should be a distinct and positive allegation as to how and when the matter came to the plaintiff's knowledge. If fraud is relied on as the excuse, the particular acts thereof should be set forth by distinct and specific aver- ment, as well as the manner and time of its discovery.'^^ Thus, if the beneficiary seeks to establish a trust after a long lapse of time, he should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, the means used by the respondent fraudulently to conceal the facts from him, and when he first had knowledge of his, rights; and especially must there be distinct averments as to the time when the fraud, mis- take, concealment, or misrepresentation was discovered, and sioJarvis v. Martin, 45 W. Va. Admr., 87 Va. 78, 12 S. E. 147; 347, 31 S. E. 957; Thompson v. Beverly v. Rhodes, 86 Va. 415, 10 S. Whitaker Iron Co., 41 \\f. Va. 574, E. 572; Harper v. Combs, 61 W. 23 S. E. 795; Cary v. Simmons, 87 Va. 561, 56 S. E. 902; Hogg v. Ala. 524, 6 So. 416; Johnson Mill- Shield, 114 Va. 403, 76 S. E. 034. ing Co. V. Read, 76 W. Va. 557, 564, Greater particularity is required 85 S. E. 726. where the statute of limitations is 311 Hogg, Eq. Pr., § 300a, citing applied in equity by analogy than Eubank v. Barnes, 93 Va. 153, 24 S. where the pure equitable doctrine of E. 908; Trader v. Jarvis, 23 W. Va. laches is involved. Patrick v. Stark, 100; Jarvis v. Martin, 45 W. Va. 62 W. Va. 602, 59 S. E. 606. 347, 31 S. E. 957; Hurt v. West's § 132 Equity Procedure 218 what the discovery is, so that the court may clearly see whether, by the exercise of ordinary diligence, the discovery might not have been before made.'^^ § 132. In the matter of the enforcement of liens. As a general rule liens are enforceable in equity unless another mode is prescribed by law;^*' but only vendors', me- chanics' and mortgage liens will be noticed here. It is sufficient to allege, in a bill filed to enforce a vendor's lien, the sale and conveyance of a tract of land to a purchaser, that the purchase money, or a balance of it, for said land remains unpaid, to secure the payment of which a vendor's lien was reserved by the grantor on the face of the conveyance, describing the debt sued for, as well also as the land against which the lien is asserted, by setting out the description in the bill or by filing the note or bond and the deed of conveyance, or a copy of it, with the bill as exhibits.'^'' But it is not neces- sary to allege in the bill how the plaintiff or grantor became invested with the title to the land upon which the lien was reserved. ^'^ "When the purchaser has made conveyances of certain parcels of the land, upon which the lien exists, these should be shown in the bill by proper description or other- wise.'''^ The bill to enforce a mechanic's lien must show on its face that the claimant has taken the steps necessary to the creation of such a lion ; '" that the work was done or material fur- nished in pursuance of a contract with the owner of the prop- erty or his authorized agent, to be used in constructing, alter- ing, repairing or removing the house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other struc- ture against which the lien is claimed; the filing of the account 312 Fletcher, Eq. PI. and Pr., § 92. 31B idem. 313 13 Enc. PI. and Pr. 126. 316 McGlauffhlin v. McGraw, 44 314 Bartlett v. Bartlett, 34 W. Va. W. Va. Tl.'S, 30 S. E. 64. 33, 11 S. E. 732. It is not neces- 317 Hogg, Eq. Pr., §.520; Luns- sary that all instalments of the ford, etc., Co. v. Wren, 64 W. Va. purchase money be Aue. Miller v. 458, 63 S. E. 308; Houston Lumber Hawker, 85 W. Va. 691, 102 S. E. Co. v. Wetzel & Tyler Ry Co., 69 470. W. Va. 682, 72 S. E. 786. 219 The Bill §132 with the proper officer within the time required by law after the claimant has ceased to work or furnish material, together with a description of the property against which the lien is claimed ; the name of the owner of the property, against which the lien is claimed, at the time the work was performed or the material furnished; the existence of the debt at the time suit is brought, for the payment of which the lien is sought to be enforced ; and it should appear that the suit was brought within the time required by law.^'^ In addition, if the suit be by a sub-contractor, laborer or materialman, the bill should allege that the labor was performed or the material furnished to the contractor to be used in the construction of the house or other structure in pursuance of the contract with such contractor.'^' Likewise, the bill should allege proper notice to the owner, as required by statute, of the intention of the lienor to assert such a lien.'^" It is sufficient substantially to allege in the bill the existence of the mortgage debt, that it is due and owing to the plaintiff,'^^ the execution of the mortgage deed,'^^ a proper description of the premises embraced in the mortgage, ^^* and the nonpayment of the debt secured by the mortgage.'^* 318 Hogg, Eq. Pr., § 520. "The general rule in a suit to en- force a mechanics' lien is that the bill should allege all the facts neces- sary to show the existence of a valid mechanics' lien, viz: the existence of the contract and terms thereof; that the work was done or material furnished in pursuance of the con- ' tract; the filing of the account with the proper officer within the time required by law, together with 2 Rathbone v. Gas Co., 31 W. ficient reason for not applying to Va. 798, 8 S'. E. 570; Deveny v. them for redress, but is not a suffi- Hart Coal Co., 63 W. Va. 650, 60 cient reason for failure to apply to S. E. 789; Ward v. Hotel Randolph the directors elected by them." Vir- Co., 65 W. Va. 721, 63 S. E. 613; ginia Passenger & Power Co. v. Smiley v. The New River Co., 72 Fisher, 104 Va. 121, 51 S. E. 198. W. Va. 221, 77 S. E. 976. If the 3.-,3 Va. Code, 1904, §2699. corporation be under the control of 3^4 w. Va. Code, 1913, c. 87, § 22. a receiver, the receiver must have sss Leach v. Buckner, 19 W. Va. been requested to act on behalf of 36; Corbin v. Mills, 19 Gratt. (Va.) the corporation. Saunders v. Bank, 438. 113 Va. 656, 75 S. E. 94. However, sse Radford v. Fowlkes, 85 Va. in lieu of a demand for corporate 820, 8 S. E. 817. action, the plaintiff may "allege 3=7 Leach v. Buckner, 19 W. Va. such facts in his pleadings as will 3fi: Corbin v. Mills, 19 Gratt. show that it is reasonably certain (Va. ) 438; Radford v. Fowlkes, 85 that a demand for corporate action Va. 820, 8 S. E. 817; Owens v. would have been useless. The fact Owens' Exor., 109 Va. 432, 63 S. E. that the wrongdoers ovm a control- 990. ling interest in the stock is a suf- 140 Equity Peoceduee 228 surcharge or falsify such account, unless there be errors or mistakes on the face of the account or the ex parte report or settlement filed with the bill ; '^' but such apparent errors need not be specified in the bill.^'^ If the bill be defective in these respects it should be dismissed unless amended.'*" A general allegation that the settled account is erroneous is not sufiS- cient.^*' The bill must specify errors.'*^ But the plaintiff is not confined to the errors specified in the bill ; so that when an account is ordered of a fiduciary's transactions, if additional objections to settled ex parte accounts are discovered, the plain- tiff may present the matter before the commissioner, with proper specifications in writing, and the defendant may meet it by afifidavit, which will have the same weight as an answer in. chancery.'*' 358 Seatright v. Seabright. 2S W. Va. 412; Taylor v. Taylor, 66 W. Va. 238, 244, 66 S. E. 690. 359 Seabright v. Seabright, 28 W. Va. 412. 360 idem. If the "bill be not de- murred to, and the court should improperly make a general order of reference directing a settlement of the accounts of the personal rep- resentative, instructing the com- missioner to regard the ex 'parte settlement as iirima, facie correct subject to be surcharged and falsi- fied by either party, and this be legally done by the plaintiff, while the cause is before the commis- sioner, and a report be made ac- cordingly, such cause ought not to be afterwards dismissed for such defects in the bill." Idem. "Where a bill is filed surcharg- ing and falsifying an administra- tor's account, and the cause is re- ferred to a, commissioner for the purpose of having the account cor- rected, and before the commissioner it is discovered that the adminis- trator has failed to charge himself with an item properly chargeable against him, and the bill does not notice such item, but there is a thorough investigation before the commissioner of the fact, whether such item is properly chargeable against the administrator, and the administrator takes evidence tend- ing to show that he is not charge- able with the item, and does not complain of surprise, nor insist upoa any specification in writing, nor claim the benefit of an explanation, by affidavit or answer, an exception to the report charging him with such time is properly overruled." McGuire v. Wright, 18 W. Va. 507. 361 Corbin v. Mills, 19 Gratt. (Va.) 438. 362 Radford v, Fowlkes, 85 Va. 820, 8 S. E. 817. 363 Davis V. l\Iorriss, 76 Va. 21; Coi-blu V. Hills, 19 Gratt. (Va.) 465. 229 The Bill §141 § 141. In the matter of trusts and trustees — Appointment of a new trustee. Bills relating to trusts and trustees usually involv(> the mat- ter of the appointment or removal of trustees,^''' the sale, mortgage or lease of trust property,'*^ the investment of trust funds, ^^^ the accounting for trust funds,'^' the removal of trust lunds to another state or country,^^* the establishment and enforcement of trusts,'"^ controversies between trustees and their beneficiaries,^^*' or with third parties,''^ and the pursuit of trust funds or property. ^'^ Though a court of equity has inherent power to accept the resignation of a trustee, or to remove him for cause, or to appoint a new trustee,'" the use 3S4Maehir v. St-hon, 14 \Y. Va. 777, 781 et seq. ; Woods v. Fisher, 3 W. Va. 536; Diinscomb v, Uuns- comb, 2 H. & M. (Va.) 11; Pate v. MeClure, 4 Rand. (Va.) 164, 174; Reynolds v. The Bank of Va., 6 Gratt. (Va.) 174; Lackland v. Davenport, 84 Va. 638, 4 S. E. 540; Diehl V. Marchant, 87 Va. 447, 12 S. E. 803; Moorman v. Crocket, 90 Va. 185, 17 S. E. 875; Pettus v. Atlantic Sav. & L. Assn., 94 Va. 477, 26 S. E. 834. 365 lies V. Martin, 69 Ind. 114; Quesenberry v. Barber, 31 Grratt. (Va.) 491; Christian v. Worsham, 78 Va. 100; Blake v. Black, 84 Ga. 392, 11 S. E. 494; Flenaing v. Hughes, 99 Ga. 444, 27 S. E. 791; Hale V. Hale, 146 HI. 227, 33 N. E. 858, 20 L. R. A. 247. 360 Crawford v. Creswell, 55 Ala. 497; Blake v. Black, 84 Ga. 392, 11 S. E. 494; Wood v. Wood, 5 Paige Ch. (N. Y.) 596, 3 Law. Ed. 844, 28 Am. Dec. 451. 387 7n re Thompson's Est., 101 Cal. 349, 35 Pae. 991; Weaver v. Fisher, 110 HI. 146; Tateum v. Ross, 150 Mass. 440, 23 N. E. 230. 3SS Linton v. Shaw, 95 Oa. 684, 22 S. E. 693; Carr v. Bredenberg, 50 S. C. 471, 27 S. E. 925; Yandcll V. Elam, 1 Tenn. Ch. 102. 369McCreary v. Gewinncr, 10,3 Oa. 528, 29 S. E. 960; Reese v. Wnllaie, 113 III. 589; Bush v. Stanley. 122 111. 106, 13 N. E. 249. 370 Halle V. Nat. Park Bank. !-!'> 111. 413, 29 N. E. 727; Chase v Perley, 148 Mass. 2S9, 19 X. E. 3!)S; Palmer v. Northern Mutual Relict Assn., 175 ilass. 396, 56 N. E. S2S. 78 Am. St. 503; Kerr v. Hill, 27 W. Va. 576. 371 Kupferman v. McGehee, 63 Ga. 257; Adams v. Franklin, 82 Ga. 168, 8 S. E. 44; Pettibone v. .James, 25 Miss. 495; Holmes v. Gilman, 138 N. Y. 369, 34 N. E. 205, 20 L. R. A. 566, 34 Am. St. 463. 372 Riehl V. Evansville Foundry Assn., 104 Ind. 70, 3 N. E. 633; Hax- ton V. McClaren, 132 Ind. 235, 31 N. E. 48; Hogg, Eq. Princ, §574, and authorities there cited. 373Machir v. Sehon, 14 W. Va. 777; Baltimore Bargain House v. St. Clair, 58 W. Va. 565, 52 S. E. 660; Lamp v. Homestead Bldg. Assn., 62 W. Va. 56, 57 S. B. 249. § 143 Equity Pboceduee 230 of a bill in equity for the appointment of a trustee has been largely superseded by motion after proper notice by statute.''* It is said that the application to appoint a new trustee, when resort is had to a court of equity, is usually made by petition.''^ But whether the procedure be by bill or petition, the plaintiff's pleading should set out the facts showing the existence of the trust, the character and extent of the plaintiff's or petitioner's interest therein, and the reasons or grounds for the appoint- ment of a new trustee.''^ § 142. In the matter of trusts and trustees — The sale, mort- gage; or lease of trust property. The bill filed to obtain leave of court to sell, mortgage or lease trust property should describe the property, and should set forth the facts making a sale, mortgage or lease necessary or beneficial to the parties interested in the trust estate, describ- ing the instrument creating the trust, or filing it or a copy of it as an exhibit with the bill.''' § 143. In the matter of trusts and trustees — The investment of trust funds. A court of equity, in right of its general equity jurisdiction, may authorize or direct the investment of trust funds or their 374 W. Va. Code, 1913, e. 132, § 5; cient must contain full and precise Va. Code, 1904, § 3420. allegations showing the necessity STS Anson, Petitioner, 85 Me. 79, for the removal, and that there is 26 Atl. 996; Dexter v. Getting, 149 danger of loss or misappropriation Mass. 92, 21 N". E. 230; King v. of the trust property." Baltimore Donnelly, 5 Paige Ch. (N. Y.) 46, Bargain House v. St. Clair, 58 W. 3 Law. Ed. 621; Machir v. Sehon, Va. 565, 52 S. E. 660. 14 W. Va. 777. 3^7 Boardman v. Taylor, 66 Ga. 376 O'Brien v. Battle, 98 Ga. 766, 638; Wagnon v. Pease, 104 Ga. 417, 25 S. E. 780, in which is given the 30 S. E. 895. petition which was held sufficient on For the form of a bill for the a demurrer. Woodgate v. Fleet, 9 sale of the lands of infants and Abb. Pr. (N. Y.) 222. other persons under disabilities in "A bill brought to remove a Virginia and West Virginia, see trustee to whom personal property post, §§ 971, 973. As to sale, lease has been assigned for the benefit of or incumbrance of lands of persons creditors, and to appoint a receiver under disability by petition in West for the trust property, to be suffi- Virginia, see post, § 253. 231 The Bill § 144 re-investment in such manner as in its judgment and discretion will best promote the interests of the beneficiaries, subject only to the express or implied limitations upon its powers created by the trust itself.^'* And for the protection and safety of a trustee, it is advisable for him to apply to che court for its advice and direction, when any doubt exists as to the matter of investment, inasmuch as the order of the court will protect the trustee from liability and losses in reference thereto.^" The bill should set forth all the facts necessary to present to the court the nature and situation of the trust fund or prop- erty, the advisability of the proposed investment or change of investment, and, if remaindermen are interested, it must appear that their interests- will not be prejudiced by the proposed investment.^^" § 144. In. the matter of trusts and trustees — An accounting by the trustee. What has already been said ^?^ as to surcharging and falsify- ing the accounts of fiduciaries will apply to trustees generally; and in addition to what is there stated it may be observed that when a trustee has failed to settle his accounts, as he is required in certain cases to do by statute, ^*^ and settle with the bene- ficiary, the latter may file his bill in equity for an accounting by the trustee.^^^ When an agency is of a fiduciary charac- ter, the principal may sue his agent in equity for an account of his agency.^** The bill for an accounting by the trustee 378 Crawford v. Creswell, 55 Ala. ssi Ante, § 140. 497; Blake v. Black, 84 Ga. 392, 11 382 w. Va. Code, 1913, c. 87, § 6; S. E. 494; Wood v. Wood, 5 Paige Va. Code, 1904, §2678. Ch. (N. Y.) 596, 3 Law. Ed. 844, sss Zetelle v. Myers, 19 Gratt. 28 Am. Dec. 451; Eolf, etc., Asylum (Va.) 62; Coffman v. Sangston, 21 V. Lefebre, 69 Xi. H. 238, 45 Atl. Gratt. (Va.) 263; Bank v. Jeflfries, 1087. 21 W. Va. 504; Wilson v. Kennedy, 3T9 Wayman v. Jones, 4 Md. Cli. 63 W. Va. 1, 59 S. E. 736. 500; Lowe V. Convention of Protes- 3S4 Zetelle v. ilyers, 19 Gratt. tant Episcopal Church, 83 Md. 409, (Va.) 62; Thornton v. Thornton, 31 35 Atl. 87. Gratt. (Va.) 212; Simmons v. Sim- 380 Crawford v. Creswell, 55 Ala. mons, 33 Gratt. (Va.) 451. 497. § 145 Equity Pkocedukk 232 should set out the nature and extent of the trust, how created, how the trustee has conducted himself with reference to the trust. If he be guilty of a breach of the trust, the fact consti- tuting such breach should be stated. For example, where the trust requires the keeping of books of accoujit and vouchers, a failure to do so should be averred. The failure or refusal of the trustee to settle his account within a reasonable time prior to the institution of the suit, or an entire failure to account, as the case may be, should be alleged. If the trustee has made a settlement of his accounts, and it is desired to contradict such settlement on the ground of error or mistake, the error or mis- take should be specifically set forth in the bill.'^^ If a discov- ery is desired, the matter as to which discovery is sought should be shown, and a prayer for discovery inserted in the bill.^*^ § 145. In the matter of trusts and trustees — Removal of trust funds to another state or country. Though the procedure to remove trust funds to another state or country is sometimes regulated by statute, as in Virginia and West Virginia for instance,'*' still equity has inherent jurisdic- tion in such matters.^** If the application be made by bill, though it may be made by petition,^*" the bill should show that a trustee has regularly been appointed in the state to which the funds are to be removed, his fitness for the trust, and that he has given sufficient security for the faithful performance of the trust.'^" 3S5 Thornton v. Thornton, 31 ^^t Post, §§ 264-26S. Gratt. (Va.) 212; Simmons v. Sim- sss Linton v. Shaw, 95 Ga. 684, mons, 33 Gratt. (Va.) 451; Berk- 22 S. E. 693; Clanton v. Wright, shire V. Evans, 4 Leigh (Va.) 233; 2 Tenn. Ch. 342; Earl v. Dresser, Banlc V. Jeffries, 21 W. Va. 504; 30 Ind. 11, 95 Am. Dec. 650; Carr Preston v. Stewart, 29 Gratt. (Va.) v. Bredenberg, 50 S. C. 4S4, 27 S. 289; McCuUa v. Beadleston, 17 R. E. 925. I. 20; Taft V. Stow, 174 Mass. 170, ■»'!> Ex parte Copeland, Rice Eq. 54 X. E. 506; Smith v. Smith, 4 (S. C.) 69, and post, §§264-268. John Cli. (X. Y.) 281, 1 Law. Ed. soo Oarr v. Bredenberg, 50 S. C. 840. 484, 27 S. E. 925; Cochran v. Fill- Mu Vilwig V. B. & 0. Railroad Co., ans, 20 S. C. 237. 79 Va. 449. 233 The Bill §146 § 146. In the matter of trusts and trustees — The establish- ment and enforcement of trusts. The jurisdiction of a court of equity to establish and enforce a trust is ample and inherent.''"^ It is important in a suit to establish a trust that the bill be drawn so as to present clearly and distinctly the character of trust sought to be shown. ^^^ Thus, if a trust be an express one, the facts constituting such a trust must be averred in the bill, for if the evidence should show an implied or constructive trust, there could be no recov- gj,y_393 ^jj^ jj^ every ease all the facts and circumstances relied on to show the creation of the trust, of whatsoever kind, should be alleged in the bill.'^^ It is not necessary to allege that a trust was created in writing, so as to take the case out of the statute of frauds, as that is matter of defense, as by the authorities is clearly shown ; ''^ and, further, because no writing is necessary to create a trust in real estate in the Virginias.^^^ 391 Emory, etc., College v. Shoe- maker College, 92 Va. 320, 27 S. E. 765; McCreary v. Gewinner, 103 Ga. 528, 29 S. E. 960; Nease v. Cape- hart, 8 W. Va. 95; Troll v. Carter, 15 W. Va. 567. 392Hooe V. Kreling, 93 Cal. 136, 28 Pac. 1042; Goodwin v. Goodwin, 69 Mo. 617. 393 Coleman v. Parran, 43 W. Va. 737, 28 S. E. 769. 39* Long V. King, 1-17 Ala. 423, 23 So. 534; Tyler v. Daniel, 65 111. 316; Bright v. Bright, 132 Ind. 56, 31 N. E. 470; Katzer v. Milwaukee, 104 Wis. 16, SO N". W. 41; Leath V. Watson, 89 Va. 722, 17 S. E. 4. 39u Whiting V. Gould, 2 Wis. 552; Broder v. Conklin, 77 Cal. 330, 19 Pae. 513: Bigelow v. Sanford, 90 Mich. 657, 57 N. W. 1037; Smith v. Pritehett, 98 Ala. 649, 13 So. 569; Switzer v. Skiles, 3 Gilman (111.) 529, 44 Am. Dec. 723; Os- borne V. Endieott, 6 Cal. 149, 65 Am. Dec. 498. S98 At common law parol trusts in real estate were created and en- forced, and of course no written evidence thereof was necessary Hogg, Eq. Pr., § 558, citing the fol lowing authorities: Currence v Ward, 43 W. Va. 367, 27 S. E 330; 1 Beach, Mod. Eq. Jur., § 149 Mr Beach cites numerous authori ties to sustain the proposition laid down by him in his Mod. Eq. Jur., § 149. In the reign of Charles 11, the statute of frauds was passed by the English parliament, the seventh section of which reads as follows: "All declarations of trust and con- fidences of any lands or tenements shall be manifested and proved by some writing signed by the party to be charged therewith, or the same shall not be enforceable in any court of law or equity in the territory over which the jurisdiction of his majesty's courts shall extend." This provision of the statute of frauds has never been in force either in the §146 Equity Procedure 234 The property as to which it is sought to create the trust should be so described in the bill as to identify it,^'^ and if a tender or offer be necessary to enable the plaintiff to assert his right, such fact must be alleged.'^-* But to establish a constructive trust, an allegation of actual fraud is unnecessary, where a general courts of Virginia or West Virginia. Currence v. Ward, supra; Bank of United States v. Carrington, 7 Leigh (Va.) 566, 576. In Virginia the doctrine of the creation of parol trusts in real es- tate is established by numerous de- cisions of the courts of that state. Walraven v. Loclc, 2 P. & H. (Va.) 547; Sprinkle v. Hayworth, 26 Gratt. (Va.) 384, 393: Hancock v. Talley, 7 Va. Law Eeg. 24; Sims v. Sims, 94 Va. 580, 27 S. E. 436, 64 Am. St. Rep. 772; Young v. Hol- land, 117 Va. 433, 84 S. E. 637; Berry V. Berry's Exor., 119 Va. 9, 89 S. E. 242. In West Virginia, a distinction is made as to the creation of parol trusts in real estate, based upon a, different and independent provision of the statute of frauds (W. Va. Code, c. 98, § 1, cl. 6), although the decision of Currence v. Ward would seem to do away with all distinc- tions, and lay down the broad doc- trine that in all cases a parol trust may be established in real estate without reference to the character thereof and the relation of the par- ties to each other in the conveyance. The distinction drawn will be found in Hogg, Eq. Pr., §558. The dis- tinction here referred to by the au- thor of Equity Principles, is thus stated : "In accordance with this princi- ple if a party obtains a deed with- out any consideration, upon a parol agreement that he will hold the land in trust for the grantor, such trust will not be enforced, as it would violate the statute of frauds and this general rule, to permit parol evidence to establish such a trust. "But it is otherwise if the deed is obtained without any consideration, upon a parol agreement that the grantee will hold the land in trust for third parties. In such a case equity will enforce the parol trust in favor of the cestui que trust, as not to do so would permit the gran- tee to commit a fraud." In sup- port of this distinction numerous cases from our own state are cited, ■among which are those of Troll v. Carter, 15 W. Va. 567, and Zane v. Fink, 18 W. Va. 755. The same distinction is recognized in Craw- ford V. Workman, 64 W. Va. 19, 61 S. E. 322. In practically all cases, the dis- tinction turns upon the question whether the oral agreement was en- tered into and the purchase money paid by the claimant before the legal title passed to the alleged trustee; or whether there be some indepen- dent equity, e. g., fraud, in favor of the claimant. Floyd v. Duffy, 68 W. Va. 339, 69 S. E. 993, 33 L. R. A. (N.S.) 883; Griffith v. Cook, 74 W. Va. 452, 82 S. E. 258. 397 Portland, etc.. Steamboat Co. V. Locke, 73 Me. 370; Howard v. Fay, 138 Mass. 104; Price v. Bell, 91 Ala. 180, 8 So. 565; Leath v. Watson, 89 Va. 722, 17 S. E. 4. 398 Enc. PI. Pr., vol. 22, p. 128. 235 The Bill § 147 fiduciary relation exists between the parties and is alleged in the bill.*" If the trust be a stale one, the facts necessary to excuse the apparent laches should be averred/"" § 147. In the matter of trusts and trustees — Controversies between trustees and their beneficiaries, and with third parties. In suits against trustees by beneficiaries, all the grounds upon which the claim to relief is predicated should be averred in the bill."^ That is, all the facts must be distinctly and specifically alleged."^ Thus, if it be sought to hold a trustee liable for a neglect of duty, a breach of trust, the facts constituting such neglect or breach must be set out in the bill.^"^ If the doing of equity on the part of a beneficiary be essential to the mainte- nance of a suit against a trustee for a violation of his trust,'"* the fact that plaintiff has performed such act must be set forth in the bill.*"^ Thus, if a trustee has become the purchaser of the trust property^ and a suit is brought to set the sale aside, the bill should aver an offer to repay the money paid by him at such sale.*"^ If the trustee desire to sue he may do so either at law or in equity, according to the nature of the demand of suit ; but in most cases the remedy for the recovery of the trust estate is by an action at law to enforce payment of a debt or the recovery of damages.*"' And a suit to enforce a purely legal demand should be brought at law."* But an equitable claim against a trust estate may be asserted in equity.*"^ 399 Idem. *-'■' Gunn ^'. Brantley, 21 Ala. 633. 400 Idem; Hogg, Eq. Pr., § 300a. ^an Idem. 401 Nichols V. McCarthy, 53 Conn. -i't Shcppards v. Turpin, 3 Gratt. 299, 23 Atl. Rep. 93, 55 Am. Ecp. (Va.) 373; Marriott v. Givens, 8 105; McDonald V. McDonald, 92 Ala. Ala. 694; Harper v. Crawford, 13 537, 9 So. 195; Page v. Oloott, 28 Ohio 129. Vt. 465; Dennis v. Dennis, 15 Md. «8 Clark v. Oliver, 91 Va. 421, 73; Cooper v. Cooper, 5 N. J. Eq. 9. 22 S. E. 175. 402 idem,; McQueen v. Sandel, 15 *^^ Linn v. Carson, 32 Gratt. La. Ann. 140. (Va.) 170; Hoskinson v. Pusey, Id. 403 Page V. Olcott, 28 Vt. 465. 442. 404 Hogg, Eq. Pp., § 60. §148 Equity Procedure 236 § 148. In the matter of trusts and trustees — The pursuit of trust funds or property. It is well settled that a bill in equity may be maintained by a cestui que trust or trustee, to follow and recover trust funds or property so long as they may be identified. But sueh a bill can not be maintained against a bona fide purchaser for value without notice."" To sueh a bill all persons through whose hands the property has wrongfully passed are proper par- ties."^ The bill must allege notice on the part of the pur- chaser at the time of the purchase, or before the payment of the consideration therefor,"^ and where the property or funds have passed through the hands of several persons, notice to each must be averred.^^' The bill should aver the necessary facts from which it will appear that the funds are trust funds,^-"* and if the form of the property has been- changed by invest- ment in other property, it must be alleged that it was bought 410 Hogg, Eq. Pr., § 574, and the cases there cited. Marshall's Exr. V. Hall, 42 W. Va. 641, 26 S. E. 300. In Orb v. Coapstiek, 136 Ind. 313, 36 N. E. 278, the court in the course of its opinion says: "Where the property of a cestui que trust has been wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the rights of the original owner. The rule is elementary that if any prop- erty, in its original form and state, is covered with a, trust in favor of the principal, no change of that state and form can divest it of such trust, or give the agent or trustee converting it, or those who repre- sent him in right, any more valid claim in respect to it than they re- spectively had before such change. The rule applies to all trust prop- erty in the hands of voliintoers and persons talking it with notice of the character of the fund. 10 Am. and Eng. Enc. Law, 62; 2 Lewis, Trusts, p. 859; Bisp., Eq., §§ S3, 319; Adams, Eq., 149; Story, Eq. Jur., § 1259 ; Bundy v. Town of llonti- cello, 84 Ind. 119; Boyer v. Libey, 88 Ind. 235; Riehl v. Assn., 104 Ind. 70, 3 K. E. 633." 411 22 Enc. PI. Pr., 199, 200, cit- ing King V. King, 45 Ga. 644; Chi- cago, etc.. Bridge Co. v. Fowler, 55 Kan. 17. "2 Coryell v. Klehm, 157 111. 462, 41 N. E. 804; Orb. v. Coapstiek, 136 Ind. 313, 36 K. E. 278. 413 Coryell v. Klehm, 157 111. 462, 41 N. E. 864. 414 22 Enc. PI. Pr., 200, citing Hopkins v. Burr, 24 Colo. 502. 237 The Bill § 149 and paid for with trust funds/ ^^ and that the property or funds were disposed of in violation of the trust.^^^ § 149. In matters of usury. Independent of the statutory provisions of the states of Vir- ginia "' and West Virginia "' as to loans generally and as to enjoining trust sales because of the taint of usury in the trust debt, there is an inherent power in a court of equity to relieve against usury."^ If suit be brought under the provisions of the statute/^" as for relief on account of money not yet paid on a usurious contract, it has been held that the bill need not con- tain a special prayer for the relief provided by statute, nor need the bill contain an offer to return the principal money borrowcd/^^ On the other hand, it has been held: "A bill under section 7, chapter 96, Code, for relief against a judg- ment on the ground of usury, is one for discovery and relief. It must state that the plaintiff is unable, for want of evidence, to prove the usury, and must call for discovery under oath by the defendant. " ^^^ And the bill should be so drawn as to p'.'_ the question of usury directly in issue.^^' 415 Idem,, citing Danforth v. Her- *" Va. Code, 1904, § 2822. bert, 33 Ala. 497. iis W. Va. Code, 1913, u. 96, §7. "In order to recover a trust fund *^^ Davia v. Deming, 12 W. Va. which has been misapplied by the 246; Harper v. Building Assn., 55 person holding it in a fiduciary W. Va. 149, 46 S. E. 817; Rorer v. capacity, it must be clearly identi- Holston Nat. B. & L. Assn., 55 W. lied or distinctly traced into the Va. 255, 46 S. E. 1018, 104 Am. St. property, chose in action, or fund, Rep. 993. which is to be made the subject out 42" Va. Code, 1904, §2822; W. of which the trust fund is to be Va. Code, 1913, c. 96, § 7. replaced. It is not sufficient simply ^21 Davis v. Deming, 12 W. Va. to trace a fund to the estate of the 246. defaulting fiduciary." Watts v. ^-- Such is held necessary in or- Ntwberry, 107 Va. 233, 57 S. E. der to show lack of an adequate 657. remedy at law. Logan v. Ballard, iieldem, citing McQueen v. San- 61 W. Va. 526, 57 S. E. 143. del, 13 La. Ann. 146. See Orb v. 423 Bloss v. Hull, 27 W. Va. 503; Coapstick, 136 Ind. 313, 36 N. E. Brown v. Toell, 5 Rand. (Va.) 543. 278. §150 Equity Procedubb 238 § 150. In the matter of wills (contest of). A bill for the contest of a will must be framed as any other bill in equity would be framed, except that it must be confined in its aim and object to the specific relief contemplated by the statute — namely, the determination by a jury, on an issue to be directed and tried, of the validity or invalidity of the testa- mentary paper which is drawn in question ; *^* and where a will has been admitted to probate, and a person interested ap- pears within the proper time and files a bill to contest it as a whole, it is sufficient in such bill to aver in general terms that such writing is not the will of the deeedent.*^^ If it is desired to set out specifically the grounds of contest, as for instance iJ* Connolly v. Connolly, 32 Gratt (Va.), 657. The sole issue involved is the validity of the will attacked. Childers v. Milam, 68 W. Va. 503, 70 S. E. 118. 4=5 Malone's Admr. v. Hobhs, 1 Koh. (Va.) 346, 39 Am. Dec. 263. In the course of his opinion, Bald- vfin, J., says: "Upon the whole I cannot perceive the propriety of re- quiring the plaintiff to do more in his bill (besides showing his inter- est in the subject and making the necessary parties) than to 'contest the validity of the will,' by aver- ring in general terms that it is not the last will and testament of the alleged testator, or, at his election, by a brief statement of his grounds of objection thereto, the briefer the better, upon a mixed question of law and fact, which it is not the province of the court to separate, and which must be submitted in general terms to the decision of the jury." This doubtless would be a sufficient bill in West Virginia. See Dower v. Church, 21 W. Va. at p. 45. But such a general alle- gation is not sufficient where it is intended to attack only a part of the will. The bill, in such case, should be so framed as to guide di- rection of an issue as to the par- ticular part attacked. Rowland v. Rowland, 104 Va., 673, 52 S. E. 366. "Lack of interest on the part of the plaintiff in a suit to impeach it will, in the question of its valid- ity, apparent on the face of the bill, occasioned by omission to al- lege such interest or an affirmative disclosure of lack thereof, consti- tutes good ground of demurrer. "Though the issue as to the exist- ence of such interest as is contem- plated by section 32 of chapter 71 of the Code 1913 (§3897) is preliminary, subsidiary, collateral and incidental in character and is not finally and conclusively deter- ininable in such suit, it must be alleged with the degree of certainty and legal sufficiency required by the rules of pleading, and so far proved as to establish it prima facie, if proof thereof is required." Jackson v. Jackson, 84 W. Va. 100, 99 S. E. 259. 239 The Bill , § 151 undue influencp, the naming of the party by whom committed and the fact that it was exercised upon the testator is insuffi- cient, without stating the means by which such influence was exerted or acquired.*^* § 151. The bill may be framed with a double aspect. A bill may be framed with a double aspect and ask relief in the alternative, but the states of facts upon which such relief is prayed must not be inconsistent.*^' The bill may state facts of a different nature so they be consistent with each other ; *^^ and the bill may present different views of the same collocation of facts."' Where the plaintiff is in doubt as to whether he is entitled to one kind of relief or another on the facts that arise in his case, the bill should be framed with a double aspect ; ^^^ or where a plaintiff is entitled to relief of some kind, if the nature of the relief to which he is entitled depends upon the existence or non-existence of a particular fact or circumstance which is not within his knowledge, but which is known to the defendant, he may allege his ignorance as to such fact, and call for a dis- covery thereof, and in such case he may frame his bill in the alternative as well as its prayer, so as to obtain the proper relief, according as the fact may appear at the hearing of the 426 Coghill V. Kennedy, 119 Ala. tixely distinct and independent of 641, 24 So. 459. ^^]^ ^tj^^r that tlie defendant will 427 Zell Guano Co. V. Heatherly, ^ compelled to unite in his answer 38 W. Va. 409, 18 S. E. 611, syl. ^ 2; U. S. Blowpipe Co. v. Spencer, and defense different matters wholly 40 W. Va. 699, 21 S. B. 769; Turlc unconnected with each other, the V. Havener, 49 'w. Va. 204, 38 S. E. biU will be treated as multifarious." 476; Dorr v. C. & 0. Ry. Co., 78 q^ jj Karnes, 61 W. Va. 543, 55 W. Va. 150, 88 S. E. 666; McMillan q ,, cok V Connor, 82 W. Va. 173, 95 S. E. S>- J^- ««S. 642; Loekhart v. Hoke, 85 W. Va. 4~» Snyder v. GrandstaflT, 96 Va. 382, 101 S. E. 703. 473, 31 S. E. 647, 70 Am. St. Rep. 428 Zell Guano Co. v. Heatherly, 863. 38 W: Va. 409, 18 S. E. 611. But, 430 1 Beach, Mod. Eq. Pr., S 114. although consistent, the different «i Llovd v. Brewster, 4 Paige statements of fact must not relate - , ^„_ „ ^ ' „^ ,,° to distinct causes of action. "Where Ch. (N. Y.) .537, 3 Law. Ed. 551, several matters joined in a bill 27 Am. Dec. 88. against one defendant are so en- §152 Equity Procedure 240 § 152. The bill must not be multifarious. Courts of equity have declined to announce a general rule applicable to all eases of multifariousness,'"^ being guided by considerations of convenience in each particular case rather than by any absolute rule.'*'^ But there are certain cardinal prin- ciples which have been established by repeated and numberless decisions in the courts of equity, and, if borne in mind, it will seldom, if ever, be found difficult to determine whether multi- fariousness exists in the particular case/^* As to what these principles are, all the adjudged eases agree.^^^ Prom the numer- ous decisions relating to this matter, a few of which are cited in the footnotes, the following rules or principles may be safely declared to govern in questions of this character: *32Segar v. Parish, 20 Gratt (Va.) G79; Hill V. Hill, 79 Va. 592; Alexander v. Alexander, 85 Va. 363, 7 S. E. 335, 1 L. K. A. 125. "•■iHill V. Hill, 79 Va. 592; Al- mond V. Wilson, 75 Va. 613; Alex- ander V. Alexander, 85 Va. 363, 7 S. E. 335, 1 L. R. A. 125; Wheeling Ice & Storage Co. v. Conner, 61 W. Va. Ill, 55 S. E. 982; Suit v. Hochstetter Oil Co., 63 W. Va. 317, 61 S. E. 307; Tierney v. United Pocahontas Coal Co., 85 W. Va. 545, 102 S. E. 249. 434 Alexander v. Alexander, 85 Va. 363, 7 S. E. 335, 1 L. R. A. 125. 4 35 The courts in the following cases, not departing from these principles, hold the bills therein not to be multifarious: Arnold v. Arnold, 11 W. Va. 455; Deem v. Phillips, 5 W. Va. 168; Shafer v. O'Brien, 31 W. Va. 601, 8 S. E. 298; Smith v. McLain, 11 W. Va. 654: Jones v. Reid, 12 W. Va. 350, 29 Am. Rep. 455; Smith v. Patton, 12 W. Va. 541 ; Anderson v. Piercy, 20 W. Va. 282; Carskadon v. Minke, 26 W. Va. 729; Stewart v. Stewart, 27 W. Va. 167; Crum- lish V. Railroad Cn., 28 W. Va. 623; Korne v. Korne, 30 W. Va. 1, 3 S. E. 17; Pyles v. Furniture Co., 30 W. Va. 123, 2 S. E. 909; Nulton V. Isaacs, 30 Gratt. (Va.) 726; Batclielder v. White, 80 Va. 103: Conimonwcaltli v. Drake, 81 Va. 305 : Thomas v. Sellman, 87 Va. 687. 13 S. E. 140: Nunnally v. Strauss, 94 Va. 255, 26 S. E. 580; Haskin Wood-Vulcanizing Co. v. Cleveland Shipbuilding Co., 94 Va. 439, 26 S. E. 878; Withers v. Sims, SO Va. 651 ; Turk v. Hevener, 49 W. Va. 204, 38 S. E. 476; Snave- ly V, Harkrader, 29 Oratt. (Va.) 112; Jordan v. Liggan, 95 Va. 619, 2i) S. E 330; Fellows v. Fellows, 4 Cowen (X. Y.) 682, 15 Am. Dec. 412, and notes 427-430. For numer- ous additional cases, see 10 Eneyc. Dig., Va. & W. Va. Rep. 133 et seq.; 14 idt-m 743-4; 1.") idem 707-8; 16 iilrm '939 ct seq. The courts in the following cases, not departing from these principles, hold the bills therein to be multifarious: Shaffer V. Fetty, 30 W. Va. 24S, 4 S. E. 278; Crickard v. Crouch, 41 W. Va. 50.1, 23 S. E. 727; Moore v. Mc- 241 The Bill §152 1. A bill will always be deemed multifarious where several matters joined in the bill against one defendant are so entirely distinct and independent of each other that the defendant will be compelled to unite in his answer and defense different mat- ters wholly unconnected with each other, and as a consequence the proofs applicable to each would be apt to be confounded with each other, and great delay might be occasioned respecting matters ripe for hearing by waiting for proofs as to some other matter not ready for hearing.*^^ 2. It will be treated as multifarious where there is a demand of several matters of a wholly "' distinct and independent Nutt, 41 W. Va. 695, 24 S. R. 6S2; Swift V. Eokford, 6 Paige Ch. (X. Y.) 22, 3 L. Ed., SS2 ; Dunn v. Dunn et al, 26 Gratt. (Va.) 291; Wells V. Sewell Point Guano Co., 89 Va. 708, 17 S. E. 2; Buffalo v. Town of Pocahontas, 85 Va. 225, 7 S. E. 238; Washington City Sav. Bank v. Thornton, 83 Va. 157, 2 S. E. 193; Sadler v. Whitehurst, 83 Va. 46, 1 S. E. 410. For nu- merous additional cases, see 10 Encyc. Dig. Va. & W. Va. Rep., 139 et seq.; 14 idem 744; 16 idem 941. In the case of Nunnally v. Strauss, supra, Harrison, J., in his opinion holding the bill in that case not to be multifarrioua, said: "Whether or not a bill is multi- farious depends, it is said, upon its allegations, and not upon its prayer. No reason is porceivcil why, under this bill, the court can not conveniently ascertain the rights of all parties, plaintiffs, and defendants, and administer justice between tliem according to the very right of the case. The plaintiffs have a common interest in the subject matter of the suit, and the defendants have a coextensive com- mon interest and liability. The litigation grows out of one and the same transaction, all the defend- ants are interested in the claim of right and the relief asked for in relation to each is of the same general character. It is true, the right of the plaiin- tiffs to recover is placed by the bill upon several grounds, all, how- ever, relating to the same subject matter; and the prayer is for re- lief in the alternative aspects pre- sented by the bill, according as the court may think just and right. There can be but one satisfaction of the plaintiffs' claim, under the bill, and the defendants are given plainly to understand the case they have to meet. The defendants can suffer no possible disadvantages from the frame of the bill, and a number of suits may be avoided by the proceeding being in its present form." 136 Cecil v. Karnes, 61 W. Va. 543, 56 S. E. 885; Harrison Co. Court V. Hope Natural Gas Co., 80 W. Va. 486, 92 S. E. 726; Bean v. McDowell Co. Ct., 85 W. Va. 186, 101 S. E. 254. 437 "It is a general rule of chan- cery pleading that a party will not be permitted to embrace in the §152 Equity Peocedure 242 nature, in the same bill, rendering the proceedings oppressive because it would tend to load each defendant with an unneces- sary burden of costs by swelling the pleadings with the state- ment of the several claims of the other defendant or defend- ants, with which he has no connection.*'* 3. A bill against two or more defendants will be regarded as multifarious which also embodies a separate and distinct claim against one of the defendants only.*'' 4. A bill will not usually be regarded as multifarious where the matters .joined in the bill, though distinct, are not absolutely independent of each other, and it will be more convenient to dispose of them in one suit.**" 5. A bill against several defendants who have a common interest centering in one point will not be held multifarious.*** 6. A blending of two causes of action in the same bill, one of which is of equitable cognizance and the other legal, will not render the bill multifarious, as the latter will be treated as same bill distinct and separate caus- es of action, but, to come within the rule, the causes must be wholly distinct, and each cause, as stated, must be sufficient to sustain a bill. The courts, however, have found it. impracticable to lay down any fixed rule applicable to all cases, but, where the matters in contro- versy are not absolutely independ- ent of each other, they consider what is just and convenient in the particular case; and if it will be more convenient to litigate and dis- pose of the matter in controversy in one suit, and this can be done without injustice to any party, the objection of multifariousness will not prevail. Story, Eq. PI., §530; Segar v. I'arrish, 20 Gratt. 672; Hill's Admr. v. Hill, 79 Va. 592; School Board of Albemarle Co. v. Parish's Admr., 92 Va. 156, 23 S. E. 221; Spooner's Admr. ^. Hilbish's Exr., 92 Va. 333, 23 S. E. 751 ; and Staude v. Keek, 92 Va. 544, 24 S. E. 227." In the opinion of the court in Dillard v. Dillard, 97 Va. 434, 34 S. E. 60. See Arnold V. Knapp, 75 W. Va. 804, 84 S. E. 895. *38 Dennis v. Justus, 115 Va. 512, 79 S. E. 1077. •*39 Frum V. Fox, 58 W. Va. 334, 52 S. E. 178. J" Arnold v. Knapp, 75 W. Va. 804, 84 S. E. 895; Saunders v. Bank of Mecklenburg, 113 Va. 656. 75 S. E. 94. **iSult v. Hochstetter Oil Co., 63 W. Va. 317, 61 S. E. 307; Depue v. Miller, 65 W. Va. i20, 64 S. E. 740, 23 L. K. A. (N.S.) 775; Baker V. Berry Hill Co., 109 Va. 776, 65 S. E. 656. :243 The Bill § 153 mere surplusage and stricken from the bill and the cause re- tained as to the equitable ground of suit.''*^ To render a bill multifarious because it unites two grounds of suit against the same defendant or defendants in one bill, two things must concur : first, the different grounds of suit must be wholly distinct from each other; secondly, each ground, as stated in the bill, must be sufficient within itself as a subject of equity jurisdiction.^^' So that if, upon the allegations of the bill, each can not stand alone as a ground of equitable cog- nizance, the charge of multifariousness can not be sustained.^"** So if the relief sought upon one ground, distinct and indepen- dent of the other, is such that a court of equity can not grant, either for want of jurisdiction, or because of the form in which it is sought, this latter will be treated as a nullity; and the court may proceed to act upon that ground of suit contained in the bill which is well stated."^ The objection of multifariousness in a bill may be disre- garded except in plain cases, whereby the administration of justice will be furthered and multiplicity of suits avoided.^** § 153. Illustrations of bills not multifarious. In illustration of the principles already announced,**' it may be stated that it is well-settled practice for a judgment creditor to unite in one bill any number of purchasers claiming different parcels of land by separate and distinct alienations.**^ Thus, "2Wellsburg, etc., Ey Co. v. Co., 80 W. Va. 486, 92 S. E. 726; Pan Handle Traction Co., 56 W. Wellsburg, etc., Hy. Co. v. Fan Va, 18, 48 S. F. 746; Harrison Co. Handle Traction Co., 56 W. Va. Court V. Hope iNat. Gas Co., 80 W. 18, 48 S. E. 746. Va. 486, 02 S. E. 726; Strother's ^i* See same authorities. Admr. v. Strother, 106 Va. 420, 56 **» gee same authorities and S. E. 170. Smith v. Patton, 12 W. Va. 541. 4*3 Snavely v. Harlcrader, 29 ^^o Johnson v. Sanger, 49 W. Gratt. (Va.) M2, 126; Arnold v. Va. 405, 38 S. E. 645; Pulton v. Knapp, 75 W. Va. 804, 809, 84 S. E. Cox, 117 Va. 669, 86 S. E. 133. 895 ; Strother's Admr. v. Strother, **? Ante, § 152. 106 Va. 420, 56 S. E. 170; Har- 448 Almond v. Wilson, 75 Va. rison Co. Court v. Hope Nat. Gas 623. §153 Equity Procedure 244 when the bill is against fraudulent alienees, the matter in liti- gation is the fraud charged in the management and disposition of the debtor's property, and in this charge all the defendants are interested, though in different degrees and proportions.''*' So a bill by a creditor of a decedent to settle the estate and the accounts of the administrator, to charge him with a devas- tavit and to have a personal decree against him, to subject lands owned by the decedent at his death, to follow such lands into the hands of a grantee of the heirs or devisees, and set aside their conveyances to such third party for fraud or other legal ground, is not multifarious.*^" "Infants by their next friend file their bill against their guardians: first, to surcharge and falsify the settled account of their guardian, and to have him removed ; and second, to have ■4*9 Idem. In the course of his opinion in Almond v. Wilson, Staples, J., says: "It has been well said if all the parties to a, fraudulent trans- action can not be called to account in one suit, it is in the power of a dishonest debtor by a distribu- tion of his property in minute por- tions among his relations and friends, to defraud his own credi- tors and set them at defiance with impunity. The expense and delay of separate suits will render their prosecution more than useless for all purposes of indemnity and re- lief. If the creditor is required to file a separate bill against each alienee, it will l/e productive of all the mischief and oppression at- tending a multiplicity of suits. He may obtain satisfaction from some of the alienees, thus rendering a prosecution of the suits against the others unnecessary and im- proper. If he should happen to err on the other side and sue only part, he may bring in persons against whom no charge can be supported as to whom the bill will be dis- missed with costs, and after years of fruitless litigation the creditor must commence anew his pursuit of property which has been in the meantime wasted and destroyed with all the attending embarrass- ment resulting from the death of witnesses and the loss of testi- mony. On the other hand, the in- convenience of uniting all the alienees in one suit will be com- paratively trivial, for the court may adapt its decrees to the proofs against each and apportion the costs as may be just and expedient. This view is fully sustained by the authorities. Bump on Fraudulent Conveyances, p. 637, and cases there cited; Fellows v. Fellows, 4 Cowen 6S2; BrinkerhofI v. Brown, 6 John Ch. E. 139; -Tones' Exr. v. Clark, 25 Gratt. 64'.^; Boyden v. Lancaster, 2 Patton and Heath 19S." i-'O Turk V. Hevener, 49 W. Va. 204, 38 S. E. 476. 245 The Bill § 153 a sale of their lands. The guardian demurs to the bill, on the ground that it is multifarious. Held: That, as the court can not sell the infants' land on a bill filed by them, and no relief on that part of the bill can be given, the court will consider the case as if that part of the bill was not in it ; and the demurrer was properly overruled. " *^^ And "a bill brought to obtain a construction of a will and the recovery of property held by several persons by titles derived under the same will, is not multifarious."**^^ So "where the ultimate and prime object of a bill is the foreclosure of a mortgage, the fact that the bill seeks the additional relief of the correction of the description of the land conveyed by the mortgage, so as to conform to the intention of the parties, does not render such bill multifar- ious." ^^^ So a bill stating the existence of a partnership, a conveyance by one partner to the other of his interest in part- nership land, with the understanding that it should be recon- veyed on the adjustment of partnership affairs, a joint use and occupation thereof after the conveyance, the acknowledgment by the grantee of the joint ownership, his death, and that his devisee claims to own the land absolutely, and asking for a par- tition or a sale and division of the proceeds, does not improp- erly join several causes of action, as all are "connected with the same subject of action." ^^* "A bill by creditors of a corporation against the corporation, its officers and stockholders, alleged that plaintiffs, relying on the company's representations that its necessary capital stock had been subscribed, sold land to it, and, at its request, con- veyed the same to S, an incorporator, who transferred it to the company in consideration of the discharge of his subscription, and the payment to him of a sum secured by mortgage on the property, that S, who was then insolvent, and still is, subscribed for 3,350 shares, in secret trust for himself and the other incor- *5i Snavely v, Harkrader, 29 453 District Grand Lodgp v. Marx, firatt. (Va.) 112. 131 Aia." 308, 30 So. 870. <=2 Withers v. Sims, 80 Va. 651. i"* Jones v. Smith, 31 S. C. 527, 10 S. E. 340. § 153 Equity Procedure 246 porators, who were and are insolvent ; that the whole scheme was fraudulently designed to shield the solvent incorporators - that the officers were guilty of fraud in not collecting the sub- scriptions, and that the corporation had been abandoned, and was insolvent unless said subscriptions were collected. Com- plainants prayed that S be declared a trustee for himself and the other incorporators in his subscription, and that the court would require said incorporators to pay the same; or, if the court should consider that the directors, by their fraud, were personally liable, it would decree against them, as well as the corporation, in favor of complainants and other creditors; or,^ if the whole scheme was a fraud, that said incorporation should be disregarded, and the incorporators held directly liable, etc. Eeld: That the bill was not multifarious. " ^^5 ^^g^ "^ bill attacking a deed of trust to secure creditors, filed against the grantors, the trustee, and the secured creditors, alleged as the principal ground of attack that the deed conferred on the trus- tee a power inconsistent with his duty to the creditors secured, and adequate to the complete defeat of the trust. It also al- leged that immediately prior, to the assignment the grantors were engaged in business with C, in which they were trading as C & Co. ; that they sold their interest to C for a large- sum, which they did not apply on their debts, but put out of reach of complainants; that there was secured to C & Co. a certain sum, which said debt complainants charge had no exist- ence in fact; and that there might be other debts preferred in said deed which did not exist. Held: That the latter allega- tions amounted merely to an allegation that C & Co.'s debt was fraudulent and the bill was not multifarious because of them." *^^ And in a suit in which a creditor's bill was for the purpose of reaching the interest of the beneficiary under a trust deed, though the deed recited that the interest of the bene- ficiary should not be subject to his debts, an amended bill was filed, which alleged the original conveyance of the property from ■155 Nunnally v. Strauss, 94 Va. 456 Jordan v. Liggan, !15 Va. 619, 2.55, 26 S. E. 580. 29 S. E. 330. 247 The Bill §153 the beneficiary to his wife and from the wife to the trustee, and alleged that such conveyances were for the purpose of defraud- ing the beneficiary's creditors, and that the interest of the ben- eficiary was subject to his debts. Held: That the bill was not multifarious, as being an attempt to set the deeds aside, as well as to subject the interest of the beneficiary to the payment of his debts, but was only for the purpose of obtaining the latter relief.^" *B7 Hutchinson v. Maxwell, 100 Va. 109, 40 S. E. 655, 57 L. R A. 384, 93 Am. St. Rep. 944. "S. A., of Wetzel county, by six several deeds executed and acknowl- edged by him at the same time and before the same justice, conveyed six parcels of land in Marshall county to six of his children under such circumstances as constitute one act and transaction. About ten days afterwards S. A. died. Short- ly afterwards four other children and legal heirs of said S. A. filed their bill against said six grantees jointly, to set aside said deeds, sub- stantially upon the ground that S. A. was, at the time said deeds were made, not of sound mind and men- tally incompetent at the time said deeds were executed and acknowl- edged, to make the said deeds, and • that they were obtained from said S. A. fraudulently and by undue in- fluence, and were not his deeds. Upon demurrer to the bill the cir- cuit court ovc^rruled the demurrer. Held: That said bill is not multi- farious; and that the court did not err in overruling the said demur- rer." Arnold v. Arnold, 11 W. Va. 449. "Where a party files a bill for the purpose of recovering a claim against the estate of a testator for her separate earnings, while the wife of such testator, and also prays an issue devisavit vd non, to con- test the validity of the will, as both subjects are not within the jurisdiction of a court of equity, as such, the bill is not multifari- ous and the party may abandon her right to contest the validity of the will, and proceed to establish her claim against the estate; but in such case the bill should be dismissed as to all the defendants, except the personal representative of the es- tate of the testator." Jones v. Reid, 12 W. Va. 350, 29 Am. Rep. 455. "A bill brought by residuary legatees is not multifarious, which seeks the settlement by an executor of a father of his estate and also of _ the mother's estate, where by the agreement of the parties interested the executor of the father had agreed likewise to act as executor de son tort of the mother and dis- tribute the estate of the mother after the payment of her debts in the same manner and to the saime parties to whom the father's estate was to be distributed, the two es- tates being so mingled as to make their separation difficult." Ander- son V. Piercy, 20 W. Va. 282. "A complaint by creditors of a corporation alleging that its officers and directors had wasted and mis- applied its assets, and had trans- §153 Equity Procedure 248 A bill by an administrator, in his fiduciary capacity and as creditor of the estate, to collect a policy on his decedent's life, to set aside an alleged assignment thereof by decedent during ferred and removed such assets be- yond the reach of the creditors, with- out consideration, leaving the cor- poration insolvent, and asking that such transfers be set aside, and that an accounting by such ofEcers be had, and for judgments against the corporation in favor of the credi- tors is not multifarious, but states a single cause of action to compel the officers to account for their con- duet, and disposition of the cor- porate funds, though different kinds of relief are soughjt." South Bend Chilled-Plow Co. v. George C. Cribb Co., 105 Wis. 443, 81 N. W. 675. A bill which asks both for the perpetuation of testimony in regard to a title and for a removal of a cloud thereon is not multifarious. Clcland v. Casgrain, 92 Mich. 139, 52 N. W. 460. A bill to foreclose four distinct m.oritgages of different dates, all of which were given by the same per- son, and are owned by complainant, though they contain different excep- tions in favor of a number of differ- ent persons, lessees and grantees, all of whom are made defendants, together with others claiming inter- ests in the land, personal judgment being asked only against the mort- gagor, is not multifarious. Torrent V. Hamilton, 95 Mich. 159, 5-4 N". W. 634. Allegations against one defendant when several are joined, which, if proved, would not show a, cause of action against the defendant, do not make a complaint demurrable as joining several distinct causes of action. Patton Paper Co. v. Kau- kauna Water Power Co., 70 Wis. 659, 35 N. W. 737. A complaint in an action by all the legatees under a will, praying that plaintiffjs rights to the full legacies given them by the will, he established, notwithstanding a part payment of such legacies, for which plaintiffs had given a receipt In full, is not multifarious, since each lega- tee is entitled to the same identical relief. Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935. A bill by independent mill own- ers, who derive water from the same dam, to restrain the operation of a dam above, which obstructs their right of flowage, is not multifarious. Cornwcll Manufacturing Co. v. Swift, 89 Mich. 503, 50 N. W. 1001. A bill to set aside a conveyance made by an insane person, and to vacate various mortgages given by the grantee, is not multifarious in impleading mortgagees who have diverse interests, if the question of sanity is decisive in all cases. Rog- ers V. Blackwell, 49 Mich. 192, 13 N. W. 512. Where persons are induced to sub- ' scribe to the stock of a corporation by representations that it had a j)aid up capital of a certain amount, was out of debt, and doing a profit- able business, and that they would be given employment therein at speoified wages, all of which repre- sentations are false, such persons may maintain a joint bill for the cancellation of their subscriptions and for the return of the money paid for the stock, where they acted jointly in the whole transaction, the 249 The Bill § 154 his life, and to subject the proceeds to the payment of dece- dent's debts, is not multifarious.*^* § 154. Illustrations of bills treated as multifarious. In the next preceding section we have given several eases in which it was determined that the bills were not multifarious. As a further illustration of the principles already announced governing in cases of this character, we here give some cases in which the bills were treated as multifarious: "A chancery suit, brought by one heir of a decedent against the person, to whom the decedent had by a voluntary deed con- veyed all his real estate, and the other heirs of the decedent, to set aside the deed as fraudulent and void because procured by undue influence, and because the grantor was non compos men- tis, and, if this should not be proven, then to set up a resulting trust to a portion of this real estate because the plaintiff had paid a certain portion of the purchase money when the land was conveyed to the decedent, is multifarious."*^^ So "a bill which seeks to enforce payment of a small judgment for costs against an administrator de bonis non out of funds in his hands ; to sell the real estate of the decedent to pay such judgment; to establish a devastavit against the administrator, and surcharge and .falsify his accounts; to convene the heirs and creditors of said administrator, now deceased; to settle the accounts of the administrator, and sell his real estate; to convene the heirs, set- tle the accounts of the administrator and distribute the estate of the third decedent; to convene the devisees, settle the ac- counts of the executor, and distribute the estate of a fourth decedent — is multifarious and inequitable. ' ' **** representations were made to them W. Va. Rep. 133 et seq.; 14 idem jointly or to one of them acting for 743-4; 15 idem 707-8; 16 idem 939 both, and the money paid for the et seq. stock was drawn out of a former ^ss Spooner v. Hilbish, 92 Va. copartnership between them. Sher- 333, 23 S. E. 751. man v. American Stove Co., 85 459 Shafifer v. Fetty, 30 W. Va. Mich. 169, 48 N". W. 537. 248, 4 S. E. 278. For numerous additional illustra- *^o Scott v. Chenoweth, 41 W. tions of bills held not to be multi- Va. 503, 23 S. E. 727. farious, see 10 Encyc. Dig. Va. & "A biU in equity which includes § 154 Equity Procedure 250 J was a partner in a mercantile business with W and A. That partnership was dissolved; and J and A formed a part- nership to carry on the same business at the same place; and this partnership was dissolved. Afterwards J filed his bill against W and A charging that both partnerships were indebted to him, and asking for a settlement of their accounts. "W de- murs and answers, the demurrer being contained in the answer and not stating the grounds of demurrer. Held: The bill is multifarious."' So a bill to restrain a town and its sergeant from collecting from complainant's employer the amount of a road tax which it was alleged the sergeant had threatened to do, though not authorized by any town ordinance or general law, and to restrain the employer from paying the tax and deducting the amount from complainant's wages, is multifari- ous."2 "The bill demanded four-fold relief, to wit: First, to obtain a personal decree against defendant Thornton as indorser; sec- ond, to obtain a like decree against the same defendant for damages for breach of warranty; third, to quiet the title to a certain portion of the land as to other defendants, and to have the land in dispute sold; fourth, to restrain the defendants Joseph and Thomas Thornton from cutting timber on the land. Held: That the bill was demurrable on the ground of multi- fariousness. ' ' ^^^ A bill in behalf of various parties to establish a trust in cer- tain lands, to recover rents and profits, to assess dower, and to recover purchase money is properly dismissed for multifarious- many defendants who have distinct v. Thornton, 83 Va. 157, 2 S. E. interests is multifarious, and there- 193. fore erroneous." Scott v. Cheno- *«* Bailey v. Calfee, 49 W. Va. weth, sufra, following Stuart's 630, 39 S. E. 642. Heirs v. Coalter, 4 Rand. (Va.) 74. A bill seeking to compel an ac- J61 Dunn V. Dunn, 26 Gratt. counting as to the management of (Va.) 291. an estate, and to enforce complain- 482 BulTalo V. Town of Pocahon- ant's rights as devisee, and which tas, 85 Va. 222, 7 S. E. 238. charges the executrix with fraud 463 Washington City Sav. Bank in obtaining a deed of property from 251 The Bill §156 § 155. How defect of multifariousness is reached. If a bill be multifarious it must, of course, usually appear so on its face and the defect is usually reached by a demurrer ; *'^ but the court, at the hearing of the case, may, sua sponte, dis- miss the bill for multifariousness even after a demurrer to it has been overruled.*^* And if a bill in part a bill of injunc- tion be multifarious, that objection can not be made on a motion to dissolve the injunction. It must be made at the final hear- ing.^" § 156. The exhibits filed with the biU. It is one of the governing principles in pleading that every- thing that is essential or material to the cause should be set forth in the bill by proper averments ; *'* but in practice, when a writing or other document is relied on, it is permissible, indeed usual and proper, to annex it to the bill or other pleading as an exhibit, setting forth only so much of the instrument as may the complainant, and a codefendant with another distinct fraud, is mul- tifarious. WoodruflE V. Young, 43 Mich. 548, 6 N. W. 85. The bill is multifarious where it seeks to compel an accounting by an executrix as to the management of an estate, and to enforce com- plainant's right as devisee, which charges the executrix with fraud in obtaining from complainant a deed of property, and also charges a co- defendant with other and separate frauds. Woodruff v. Young, 43 Mich. 548, 6 N. W. 85. A bill by a number of owners of lots to restrain the prosecution of individual ejectment suits against them by one claiming a dower in- terest in the lots is multifarious. Douglass V. Boardman, 113 Mich. 618, 71 N. W. 1100. For numerous additional illustrations of multifari- sus bills, see 10 Encyc. Dig. Va. & W. Va. Rep. 139 et aeq.; 14 idem 744; 16 idem 941. "0 Wells V. Sewell Point Guano Co., 89 Va. 708, 17 S. E. 2; Dunn V. Dunn, 26 Gratt. (Va.) 291; Beall T. Shaull, 18 W. Va. 258. The demurrer goes to the whole bill, and if sustained, the bill will be dismissed. Cecil v. Karnes, 61 W. Va. 543, 56 S. E. 885; Harrison County Court v. Hope Nat. Gas Co., 80 W. Va. 486, 92 S. E. 726. 466 Wells V. Sewell Point Guano Co., 89 Va. 708, 17 S. E. 2; Dennis V. .Tustus, 115 Va. 512, 79 S. E. 1077. i«^ Shirley v. Long, 6 Rand. (Va.) 764; Beall v. Shaull, 18 W. Va. 258. ■468 American Bell Tel. Co. v. Southern Bell Tel. Co., 34 Fed. 803 ; Harvey v. Kelly, 41 Miss. 490, 93 Am. Dec. 267; Terry v. Jones, 44 Miss. 542; Martin v. McBryde, %■ Ired. Eq. (N. C.) 531. [10] §156 Equity Procedure 252 be necessary to a proper understanding of the matters contained in the bill; *°' and when this is done, such writing or document, thus made an exhibit, becomes a part of the bill as if incorpo- rated into it in haoc verba.'''"' When a case arises, as it sometimes does, in which any ques- tion is likely to turn upon the precise words of a written instru- ment, as where it is sought to establish a particular construction of a will which is informally or inartificially worded, the words which are the subject of dispute ought to be precisely and accu- rately set out in the bill in order more specifically to point the attention of the court to them. Indeed, whenever informal instruments are insisted on, upon the construction of which any difficulty is likely to arise, the written instruments relied on, or at least the material parts of them, should be set out in haec verba. In many cases, the expressions of the instrument or writing are such that any attempt to state their substance, with- out introducing the very words in which they are expressed, 469 2 Story, Eq. PI. (9tK Ed.), § 241 ; Hood v. Inman, 4 John. Ch. (N. Y.) 437, 1 Law. Ed. 894. Generally the bill and answer ought not to set lorth deeds in haec verba, but so much of them only as is material to the point in ques- tion; nor ought they to be argu- mentative or rhetorical. Hood v. Inman, 4 Johns. Ch. (N. Y.) 437, 1 Law. Ed. 894. But it is not compulsory to ex- hibit documentary evidence with the bill. Columbia Gas & Electric Co. V. Moore, 81 W. Va. 164, 93 S. E. 1051. 470 Kester v. Lyon, 40 W. Va. 161, 20 S. E. 933; Bias v. Vickers, 27 VV. Va. 456; Thompson v. Clark, 81 Va. 422; Johnson v. Anderson, 76 Va. 766; Richardson v. Ebert, 61 W. Va. 523, 56 S. E. 887; Board of Education v. Berry, 62 W. Va. 433, 59 S. E. 169, 125 Am. St. Rep. 975. In Sadler v. Taylor, 49 W. Va. : 104, 38 S. E. at p. 588, Poffen- barger, J., delivering the opinion of the court in holding the bill suf- ficient on demurrer, says: "While the bill is very imperfect in form, and without the exhibits filed with it would undoubtedly be bad upon demurrer, the plaintiff asks that the exhibits be read and treated as parts of his bill, which makes them as much parts of it as if incorpo- rated in it. Barb. Ch. Prac. 278; Johnson v. Anderson, 76 Va. 766; Thompson v. Clark, 81 Va. 422. "From the facts alleged in the bill and appearing in the exhibits it appears that Taylor is largely in- debted to the plaintiff; that the latter has a lien upon Taylor's property to secure the payment of that indebtedness, and that the so- called 'deed of trust' securing it can not be executed in pais because the creditors are themselves made the trustees therein, and because the plaintiff does not know the ac- tual amount due and owing him from Taylor. The demurrer was properly overruled." 253 The Bill §156 would be ineffectual, and it is best that they should be set forth."! But in order to make a document or writing of any sort an exhibit in a cause, it is not necessary or essential that the writ- ing be filed as such with the pleading. If it be referred to in the decree or filed as a paper in the cause, by an order or decree entered therein, it becomes an exhibit as effectually for all proper purposes as if it were formally filed as an exhibit with any pleading in the cause.^'^ The exhibit filed with the bill and made part of it will control the determination of the court in construing and giving effect to the pleading and in ascertain- ing the true intent of the pleading, where there is a conflict in the allegation of the bill, to which the exhibit relates, and the exhibit itself.^'^ In certain instances provided by statute, the paper filed as an exhibit is treated as genuine unless its gen- *7il Daniell, Ch. PI. and Pr. (6th Am. Ed.) 364; 1 Whitehouae, Eq. Prac, § 98. "2 Craig V. Sebreir, 9 Gratt. (Va.) 131; Richardson v. Done- hoo, 16 W. Va. 685, 711-712; Traeey v. Shumate, 22 W. Va. 511. Also, it may he introduced as evidence. Suit v. Hochstetter Oil Co., 63 W. Va. 317, 322, 61 S. E. 307. But, obviously, in order to support a decree pro confesso and 80 avoid the necessity of tatting testimony, it is the better prac- tice to file such documents with the bill. In order to guard against loss of a valuable original, in proper cases, a copy may be filed, with an offer in the bill to produce the original on demand. For the three methods of filing ('xliil)its, see 1 Whitehouse, Eq. Prac. S OS. ^T-i Lockhead v. Berkeley Springs Waterworks & Imp. Cxj.. 40 W. Va. 553, 21 S. E. 1031; Dunlap v. Eden, 15 Ind. App. 575, 44 N. E. 560; Bias V. Vickers, 27 W. Va. 456. Also see, Richardson v. Ebert, 61 W. Va. 523, 56 S. E. 887; Board of Education v. Berry, 62 W. Va. 433, 59 S. E. 169, 125 Am. St. Rep. 975; Atlantic Terra Cotta Co. v. Moore Construction Co., 73 W. Va. 449, 80 S. E. 924; Freeman v. Car- egie Nat. Gas Co., 74 W. Va. 83, 81 S. E. 572, and numerous cases cited therein; Caswell v. Caswell, 84 W. Va. 575, 100 S. E. 482. It will be observed, from the cases cited above, that an exhibit may either supplement or contra- diet a bill — either support or nul- lify it. But where a bill alleges a fact and states that a written exhibit will prove the fact, on demurrer the fact will be taken as true, though the exhibit do not prove it, provided the exhibit do not contra- dict it. Elswiek v. Deskins, 68 W. Va. .396, m S. E. 849. "An exhibit filed with a pleading becomes a part of it with like ef- fect as if bodily incorporated into it. If there be inconsistency or. §156 Equttt Prooeddke 254 nineness is denied by affidavit."* But an answer under oath to a bill denying the genuineness of an exhibit filed therewith suf- ficiently puts in issue the genuineness of the writing thus filed as an exhibit, and puts the plaintiff on proof of the same.'"^ However, wher-e the bill makes reference to important exhibits end bases allegations thereon, and the defendant answers and does not deny the existence of the exhibits, nor contest their validity, and they are not produced, the defendant can make no objection in the appellate court to their non-production.*^' discrepancy as to dates or as to the cause relied on for relief between the allegations of the bill, in sup- port of whidi the exhibit is filed, and the exhibit, the latter will be accorded great, sometimes control- ling, influence upon demurrer or upon the merits, as in some of our decisions. Eichardson v. Ebert, 61 W. Va. 523, 56 S. E. 887; Board of Education v. Berry, 62 W. Va. 433, 59 S. E. 169. "But none of our cases or those of other jurisdictions have gone so far as to say that an ex- hibit offered for one purpose shall effectually set at naught other pos- itive and unequivocal allegations of a pleading. The exhibit in part quoted was filed, not to sustain the averment of title, but to show the terms of sale. Besides, if it had been embodied in the bill and there- fore literally a part of it, the de- murrer would for the purposes thereof have admitted the allega- tions as to title and terms of pay- ment. Which then shall be ac- cepted as true upon the questions raised by the challenge if there is such discrepancy? Shall the lan- guage quoted from the notice of Bale be allowed to outweigh the as- sertion of title to the lots sold when the exhibit relates to an entirely different matter, or shall each alle- gation be limited and restricted to that to which each of them is ad- dressed ? There seems to l>e but one justifiable answer to this interrog- atory. In Green v. Page, 80 Ky. 368, 370, the court takes the view that, in determining the sufficiency of the material averments of a pleading, an exhibit may properly be considered only as evidence upon the trial of an issue therein and not in aid of or in derogation of such averments. While this state- ment of the law may not agree with the general doctrine upon the subject, it does to some extent war- rant the conclusion reached, to the effect that an exhibit can not nul- lify an allegation it was not of- fered to support and with which it had no sort of connection, what- ever may be its effect upon the final hearing of the cause upon the merits. This ground of demurrer will not avail." Donahue v. Raf- ferty, 82 W. Va. 535, 96 S. E. 935. -. Edgar, 2 Barb. Roup, 46 W. Va. 488, 33 S. E. 261; (N. Y.) Ch. 106. Turner v. Stewart, 51 W. Va. 4f)3, 34 1 Barb., Ch. Pr., 304; 1 Beaeb, 41 S. E. 924; Chapman v. Branch, Mod. Eq. Pr., § 432. 72 W. Va. 54, 67, 78 S. E. 235, and 35 W. Va. 0. & 0. L. Co. V. Vinal, cases cited. 14 W. Va. 637; Hergel v. Laiten- 3^ Kanawha Lodge v. Swann, 37 berger, 2 Tenn. Ch. 254. "The plain- W. Va. 176, 16 S. E. 462. tiff in the original suit should be 38 Idem; Derbyshire v. Jones, 94 made a defendant to the cross-bill Va. 140, 26 S. E. 416; Hurd v. in all cases." 1 Beach, Mod. Eq. Pr., Case, 32 111. 45, 83 Am. Dec. 249; §436. Jones v. Smith, 14 111. 229; Kenne- 30 Cleveland v. Chambliss, 64 Ga. dy v. Kennedy, 66 111. ^00; Allen v. 361; Carry. Bob, 7 Dana (Ky) 417; Tritch, 5 Colo. 222, 228, Gibson's Miller v. McGalligan, 1 Greene Suits in Chancery, §882; Brandon (Iowa) 527; Goff v. Price, 42 W. Mfg. Co. v. Prime, 14 Blatchf. (U. 305 Cross-Bills § 217 If relief is sought by the cross-bill as to matters not set out in the original bill, process must issue against those made de- fendants to it in order to give the court jurisdiction over the defendants.*' § 217. The essential averments of a cross-bill. It is laid down by the text writers that a cross-bill should state the original bill, the parties to it, its prayer and objects, the proceedings thereon, and the rights of the plaintiff therein which are sought to be made the subject of cross-litigation.*" A cross-bill must contain in itself all the facts requisite to entitle the pleader to relief, and not rely upon the original bill for a statement of the cause of action." The only real differ- ence between a bill and a cross-bill is that the first is filed by the plaintiff and the latter is filed by the defendant. Both eon- tain a statement of the facts, and each demands affirmative relief upon the facts stated.*^ A cross-bill can not be helped out by the averments of any of the other pleadings in the action, ^^ except in matters of mere description, when it may refer to and adopt some of the allegations of the bill.** Thus a description in a cross-bill in a suit to quiet title, designating S.) 371; Blodgett v. Hobart, 18 Vt. *i 1 Beach, Mod. Pr., §443; Con- 414; Coster v. Bank, 24 Ala. 37; 1 ger v. Miller, 104 Ind. 594, 4 N. E. Beach, Mod. Eq. Pr., §436; Brown 301; Winter v. McMillan, 87 Cal. V. Story, 2 Paige Ch. (ST. Y.) 594, 263, 25 Pac. 407, 22 Am. St. Eep. 2 Law. Ed. 1044; Chapman v. 243; Marriott v. Clise, 12 Colo. 561, Branch, 72 W. Va. 54, 67, 78 S. E. 21 Pac. 909; Wood v. Hughes, 138 235 and cases cited. Ind. 179, 37 N. E. 588. 39Shaul V. Einker, 139 Ind. 163, « 1 Beach, Mod. Eq. Pr., §443; 38 N. E. 593; Goflf v. Price, 42 W. Ewing v. Patterson, 35 Ind. 326; Va. 384, 26 S. E. 287; Chapman v. Conger v. Miller, 104 Ind. 594, 4 Branch, 72 W. Va. 54, 67, 78 S. E. N. E. 301. 235, and cases cited. ^3 Coulthurst v. Coulthurat, 58 40 2 Dan., Ch. Pr. (Fourth Am. Cal. 239; Conger v. Miller, 104 Ind. Ed.), 1549 and note; 1 Bart, Ch. 594, 4 N. E. 301 ; Turner v. Stewart, Pr., 301; Story, Eq. PL, §401; 1 51 W. Va. 493, 498, 41 S. E. 924. Beach, Mod. Eq. Pr., § 444 ; Puter- 4^ Anderson v. Wilson, 100 Ind. baugh, Ch. Pr. (Third Ed.), 370. 402; Gardner v. Fisher, 87 Ind. 375; Ooe V. Lindley, 32 Iowa 437. § 218 Equity Proceduee 306 the land as the real estate in the bill mentioned is sufficient, for the purpose of identification merely.^^ A cross-bill should be so framed that the two causes may be heard together/^ and should contain a prayer to that effect, a& well as a prayer for relief and for process.^' To make an effec- tual and binding decree as to matters set up in a cross-bill, the parties sought to be bound must be defendants to it and served with process.** The matter of form as to cross-bills, like all other pleadings in equity, is wholly disregarded in the Virginias. Thus an answer will be treated as a cross-bill "*' if it contains the proper allegations, and likewise a petition.^" § 218. When a cross-bill may be filed. Under the earlier English decisions, and in those jurisdictions where testimony was taken secretly and kept from the inspec- tion of the parties until publication, the rule was that the cross- bill must be filed before publication, unless the plaintiff in it was willing to go to a hearing on the evidence already pub- lished.^^ But the true rule, it would seem, as to the proper *5 Cookerly v. Duncan, 87 Ind. such an answer as to a cross-bill. 332. See also Gardner v. Fisher, 87 Goff v. Price, 42 W. Va. 384, 26 S. Ind. 375; Coe v. Lindley, 32 Iowa E. 287; Chapman v. Branch, 72 W. 437. Va. 54, 67, 78 S. E. 235, and cases i" McConnico v. Mosely, 4 Call cited. (Va.) 360. 50 Savers V. Wall, 26 Gratt. (Va.) 47.5 Enc. PI. and Pr., 652. See 354, 21 Am. Rep. 303; Pracht v. Martin v. Kester, 46 W. Va. 438, 33 Lange, 81 Va. 711. S. E. 238. 51 Cartwright v. Clark, 4 Mete. *8 Pracht V. Lange, 81 Va. 711. (Mass.) 104: Milford v. Beasey, 3 Also s*.e authorities cited supra, note £<^k. 501 ; Taylor v. Obee 3 Price 26: Cook V. Broonihead, 16 Ves. Jr. 39, 133; Dalton v. Carr, idem 93: «Cralle v. Cralle, 79 Va. 182; Sterry v. Arden, 1 Johns. Ch. (N. Wayland v. Crank, idem 602; Met- Y.) 62, 1 Law. Ed. 60 and note: tert V. Hagan, 18 Gratt. (Va.) 231; ^r^T T/-.,«^'T"t'^'""*' ^ /°flfiT' . jt . T^j J oo IT onrt oo Ch. N. Y.) 360, 1 Law. Ed. 86( : Adkms V. Edwards, 83 Va. 300, 2 S. pj^jj ^ Schieifelin, 7 Johns. Ch. (N. E. 435. In West Virginia, by virtue of Y.) 252, 2 Law. Ed. 284; Roberts statute, an answer may in any ease v. Peavey, 29 N. H. 392. See First serve the purpose of a oross-bill. W. ^>t; Bank of Webster Springs v. TT n J inio loK » ■><; rrx. McGraw, 85 W. Va. 298, 101 S. E. Va. Code, 1913, c. 125, § 35. The ^y^ same rules and essentials pertaiu to 307 Cross-Bills § 220 time to file a cross-bill is that it should be filed at the time the answer is filed and before issue thereon by means of replica- tion thereto,^^ and that it ought not to be allowed to be filed before the answer has been filed. ^^ But after all, the time when such a bill may be filed rests largely in the discretion of the court. ^* § 219. As to obtaining leave of court to file a cross-bill. In some jurisdictions it is held that a defendant may file a cross-bill as a matter of right, ^^ while in others it is decided that leave of court must be obtained.^' It is suggested that if the cross-bill seeks affirmative relief, application should be made to the court for leave to file the same, and especially should this be done if there has been any delay in the matter of filing it.°' Indeed it is said by an able "writer that the bill must be filed by leave of eourt.^* § 220. Demurrer to cross-bill. A cross-bill will be open to a demurrer when the matter which it sets up is not germane to the original bill ; °' or, when the relief which it seeks is not of an equitable nature ; *" or, 52 Irring V. DeKay, 10 Paige Ch. b4 i Ban-t., Ch. Pr., 303; 5 Enc. PI. (N. Y.) 319, 4 Law. Ed. 993; 1 and Pr., 654, 655; 6 Stand. Prpc. Beach, Mod. Eq. Pr., § 438; 1 Bart., 283. Ch. Pr., 303; Puterbaugh, Ch. Pr. 5=5 Enc. PI. and Pr., 656; 1 (Third Ed.), 375. It may be filed. Beach, Mod. Eq. Pr., § 437; 6 as a bill in the nature of a bill of Stand. Proc. 282 et seq. review, even after final decree, and ^6 Idem. by one not a party to the original 57 See 5 Enc. PI. and Pr., 657 ; 1 bill. But in such a case, it really Beach, Mod. Eq. Pr., § 437 ; W. Va. is an original bill in nature. Kan- 0. & O. L. Co. v. Vinal, 14 W. Va. awha' Hardwood Co. v. Evans, 65 637. W. Va. 622, 64 S. E. 917. It must ss i Bart, Ch. Pr., 305. be filed with reasonable promptness, 59 Story, Eq. PI. (Ninth Ed.), unless excuse is shown for the de- §631; Puterbaugh, Ch. Pr. (Third lay. McSwegin v. Howard, 70 W. Ed.), 377. Va. 783, 74 S. E. 948. See 6 Stand. "o W. Va. 0. & 0. L. Co. v. Vinal, Proc. 280. 14 W. Va. 637. Except where it is 53 See same citations. As to the purely defensive. Idem. ■time when an answer may be filed, see post, c. 20, § 454. § 223 Equity Procedure 308 when it contradicts matters already admitted in the answer ; '- or, where it seeks relief and does not contain all the allegations necessary to confer upon the party a title to equitable relief; ^^ or, where it is filed contrary to the practice of the court, or in cases where a pure cross-bill is not permitted ; *^ or, where it sets up matter which might properly be presented by answer ; " and, in general, when any substantial defect appears upon the face of the cross-bill, as nonjoinder or misjoinder of parties.*' § 221. Plea to cross-biU. As cross-bills only differ from original bills in that the former is occasioned by the latter, any plea in bar that may be filed to an original bill may also be filed to a cross-bill.^* And on the other hand a cross-bill is not liable to any plea to which an original bill is not liable.*^ §222. Answer to cross-bill. The plaintiff in a cross-bill cannot compel an answer to be made to it until he has answered the original bill.** And in Virginia, this long-established rule has been confirmed by stat- ute.*' The rules applicable to answers to original bills apply fully to answers to cross-bills.'"' § 223. Effect on cross-bill of dismissal of original bill. As a general rule, the dismissal of the original bill carries with it the cross-bill, without an order or decree to that effect,'^ 61 Story, Eq. PI., §632; Puter- 66 5 Enc. PI. and Pr., 661, citing baugh, Ch. Pr., 377. Cooper, Eq. PL, 303; Mitford's Eq. 62 W. Va. 0. & d. L. Co. V. Vinal, PI. by Jeremy, 290, 291; Beames, 14 W. Va. 637. PI. in Eq., 802 ; Story, Eq. PL, § 832> 63 Story, Eq. PL, § 632; Puter- erWem. baugh, Ch. Pr. (Third Ed.), 377. os 2 Dan., Ch. Pr. (Fourth Am. 04 Newberry v. Blatchford, 106 IlL .Ed.), 1.5.51 and note 3; Puterbaugh, 586; Beck v. Beck, 43 N. J. Eq. 39, Ch. Pr. (Third Ed.), 378; 1 Bart., 10 AtL 155; Buckingham v. V7ea- Ch. Pr., 303; Story, Eq. PL, §845. son, 54 Miss. 526. 69 Va. Code, 1904, § 3254. 65 Jackson v. Relf, 26 Fla. 465, 'o Puterbaugh, Ch. Pr., 378. S So. 184; Vail v. Arkell, 43 IlL "1 Beach, Mod. Eq. Pr., §447; App. 466. Wilkinson v. Roper, 74 Ala. 145; 309 Ceoss-Bills 223 as the latter is usually regarded as auxiliary to and dependent upon the former/^ and especially is this the case when the cross-bill is simply defensive of the original bill.'" But if the cross-bill prays for affirmative relief, it may be termed a cross- bill for relief in the nature of an original bill, and it is then competent to retain and proceed with the cross-bill, oven after the original bill has been dismissed."^ Thus, when the cross- bill not only sets up matters of defense as to the original bill, but prays the specific performance of a parol contract set up as a defense to the original bill in relation to real estate, so far as it asks for affirmative relief, it may be heard and decreed upon after the dismissal of the original bill.'^ It is stated in a work of high repute that, "whether or not, in the absence of statute, a cross-bill by a defendant against a Abels V. Mobile Real Estate Co., 92 Ala. 382, 9 So. 423; McGuire v. Judge, 69 Mich. 593, 37 N. W. 568; Lowenstein v. Hooker, 71 Miss. 102, 14 So. 531 ; Jackson v. Roane, 96 Ga. 40, 23 S. E. 118; Piedmont, etc., L. Ins. Co. V. Maury, 75 Va. 508; Puterbaugh, Ch. Pr., 379; Etowah Min. Co. V. Wills Valley Min & M. Co., 121 Ala. 672, 25 So. 720; Spies V. Arvondale, etc.. Railroad Co., 60 W. Va, 389, 394, 55 S. E. 464. 12 Idem; Pierce v. Chace, 108 Mass. 260. 73 Kean v. Lathrop, 58 Ga. 355 ; Harris v. Hines, 59 Ga. 427; Wil- kinson V. Roper, 74 Ala. 145; Mc- Guire V. Judge, 69 Mich. 593, 37 N. W. 568; Ballard v. Kennedy, 34 Fla. 483, 16 So. 327; Spies v. Arvondale, etc.. Railroad Co., 60 W. Va. 389, 394, 55 S. E. 464. Where the cross- bill responds to mere surplusage in the O'riginal bill, dismissal of the bill dismisses the cross-bill. Lewis V. Cregor, 73 W. Va. 564, 80 S. E. S57. 14 W. Va. 0. & 0. L. Co. v.. Vinal, 14 W. Va. 637; Wilkinson v. Roper, 74 Ala. 145; Ballard v. Kennedy, 34 Fla. 483, 16 So. 327; Ragland v. Broadnax, 29 Gratt. (Va.) 401; Griffin V. Griffin, 118 Mich. 446, 76 N. W. 974; Equitable, etc.. Society v. Wilson, 110 Va. 571, 66 S. E. 836; Big Huff Coal Co. v. Thomas, 76 W. Va. 161, 167, 85 S. E. 171. In Pethel v. McCullough, 49 W. Va. 520, 39 S. E. at p. 201, in the course of his opinion, delivered in that case, Brannon, P., says: "The general rule is that when filed pure- ly in defense of the original bill the dismissal of the original dismisses the cross-bill ; but when, in addition, the cross-bill contains new matter on which it seeks affirmative relief, such dismissal does not dismiss the cross-bill, because as to this new matter it has the elements of an original bill, and the cross-bill still stands for action." 75 W. Va. 0. & O. L. Co. V. Vinal, 14 W. Va. 637; Big Huff Coal Co. V. Thomas, 76 W. Va., 161, 167, 85 S. E. 171. ' § 224 EQraTY Proobdure 310 codefendant for relief will be retained after dismissal of the original bill, is doubtful ; probably it will not. " '° Be this as it may in some other jurisdictions, upon principle and author- ity, the dismissal of the original bill in Virginia and West Vir- ginia must carry with it a cross-bill filed by one defendant against a codefendant for affirmative relief, because a decree between codefendants can only be based upon the pleadings and proofs between the plaintiff and the defendants." That is, there can be no decree between codefendants in any case in which no decree can be rendered for the plaintiff, either because of defect of proof or lack of equity in his bill.'* § 224. Stay of proceedings on the original bill. Upon the filing of a cross-bill, proceedings are not stayed on the original bill as a matter of course.''^ The plaintiff is not compelled in any case to stay proceedings in his case upon the filing of a cross-bill, except by a special order of the court,*" based upon proper application,*^ and after due notice to the adverse party.*^ But if there has been no unnecessary delay in 76 5 Enc. PI. and Pr., 664, citing v. Miller, 29 W. Va. 326, 6 Am. St. Elderkin v. Fitch, 2 Ind. 90; Abela Eep. 644, 1 S. E. 740; Roots v. Salt V. Planters, etc., Ins. Co., 92 .\la. Co., 27 W. Va. 4S.3; Ould & Carring- 383, 9 So. 423; Oilman v. Kew Or- ton v. Myers, 23 Gratt. (Va.) 383; leans, etc., R. Co., 72 Ala. 566; Law v. Sutherland, 5 Gratt. (Va.) Jones V. Robinson, 77 Ala. 499; 357; Hubbard v. Goodwin, 3 Leigh contra, Sbarpe v. Pike, 5 B. Mon. (Va.) 492. (Ky.) 156. 79 Williams V. Carle, 10 N. J. Eq. "Vance V. Evans, 11 W. Va. 342; •"'•i''^; Puterbaugh, Cb. Pr., 379; T, rt TT -ii T,i \KT ^7 "7 First Banl< of Webster Springs v. Ruffner, v. Hewitt, 14 W. Va. 738; jj,g,^„, gg ^ y^ 298, 101 S. E. Wortbington v. Staunton, 16 W. Va. 474^ 208; Burlew V. Quarrier, 16 W. Va. so White v. Buloid, 2 Paige Oh. 108; Hoffman v. Rvan, 21 W. Va. (N. Y.) 164, 2 Law. Ed. 857; Gris- .11 e ci. J T3 1 iQn„„++ (TTo i wold V. Simmons, 50 Miss. 141; 415; Steed V. Baker, 13 Gratt. (Va.) „ t^i j t x i„k„„ ' ' , „, ^ ,; Gouverneur v. Elmendorf, 4 Johns. 380; Glenn v. Clarke, 21 Gratt, qj,. (,N. Y.) 357, 1 Law. Ed. 867; (Va.) ?5: Blair v. Tliompson, 11 Talmadge v. Pell, 9 Paige Ch. (N. Gratt. (Va.) 441; Yerbv v. Grigsby, Y.) 410, 4 Law. Ed. 754. 9 Leigh (Va.) 387; Morris v. Ter- ,," ^^7'=''*'"? ^'PV*"*™' .3* "I- " .„ * , ' ^ ' 378 ; Talmadge v. Pell, 9 Paige Ch. rell, 2 Rand. (Va.) 6. (N. Y.) 410, 4 Law. Ed. 754. 78 Watson V. Wigginton, 28 W. 82 1 Beach, Mod. Eq. Pr., § 441, Va. 584; Western Lunatic .-Vsylum citing Cartwright v. Clark, 4 Mete. 311 Cross-Bills §225 filing the cross-bill,*' the court may stay proceedings on the original bill, to aid the defendant in obtaining a discovery or the production of documents, until the plaintiff has fully an- swered the cross-bill, made complete discovery, or produced the needed documents.'* § 225. The hearing on the cross-bill. "For most purposes the original bill and cross-bill are con- sidered to constitute one suit, and are heard together, in order that there may be a decree settling the rights of all the parties interested in the litigation. ' ' '^ But it is not absolutely essen- tial that they be heard together.*' Whether a hearing upon the original bill will be postponed in order to coincide with a hearing upon the cross-bill lies within the discretion of the court.*' Mass. 104; Aylet v. Easy, 2 Ves. Sr. 330; Williams v. Carle, 10 N. J. Eq. 543. "In the leading ease of White V. Buloid, 2 Paige 164, it was said that if the complainant in the cross-bill wishes to stay proceedings in the original suit, the cross-bill should be filed on oatli, and a certifi- cate of counsel should be obtained stating that he believes a stay of proceedings in the original suit to be necessary for the attainment of justice in the cause and that the cross-bill is not intended for delay.'' 1 Beach, Mod. Eq. Pr., §441, note 3, at p. 461. The proceedings will not be suspended when the cross- bill has been filed at an unreason- able stage in the proceeding. Baker V. Oil Tract Co., 7 W. Va. 4,54; Arm- strong V. Wilson, m W. Va. 108. 83 1 Beach, Mod. Eq. Pr., § 442. 84 White V. Buloid, 2 Paige Ch. (N. Y.) 104, 2 Law. Ed. 857; and 1 Pomeroy, Eq. Jur., § 192; Princess of Wales V. Liverpool, 1 Swan 114; Taylor v. Heming, 4 Bead. 235; Bate V. Bate, 7 Bead. 52S ; Milligan v. Mitchell, 6 Sim. 186: Penfold v. Nunn, 5 Sim. 405; United States v. Wagner, L. R. 2 Ch. App. Cas. 582 ; Talmadge v. Pell, 9 Paige (N. Y.) 410, cited in a note to Buloid v. White, 2 Paige Ch. (N. Y.) 164, 2 Law. Ed., at p. 858. "Upon the filing of such cross-bill, it is usually proper to stay proceedings until the same is answered and complete dis- covery made." Kanawha Lodge v. Swann, 37 W. Va. 176, 16 S. E. 462. 85 5 Enc. PI. and Pr., 664, 665. 80 Idem. s^McConnico v. Moseley, 4 Call (Va.) 360. CHAPTER XII BILLS OF REVIEW § 226. Nature of a bill of review. § 227. When a bill of review will lie. — Decree must be final. § 228. Where bill of review filed and class of cases reached by it. § 229. What is error apparent on face of decree. § 230. What sufficient newly-discovered matter to sustain bill of review. § 231. Within what time bill of review must be filed. § 232. Leave of court as to filing bill of review. §233. How leave to file a bill of review obtained. § 234. Whi; may file a bill of review. § 235. Parties defendant to a bill of review. § 236. The essential allegations of a. bill of review. § 237. Some instances illustrative of the use of a bill of review. § 238. Some instances illustrative of the disallowance of a bill of review. § 239. Performance of the decree before filing bill of review. § 240. Defense to bill of review for errors of law. § 241. Defenses to a bill for newly-discovered matter. § 242. Bill in the nature of a bill of review. § 243. Supplemental bill in the nature of a bill of review. § 226. Nature of a bill of review. A bill of review is a bill filed in the same court in which the original bill was filed to reverse or modify a decree that has been signed and enrolled, that is a final decree, for errors in law apparent upon the face of such decree, or because of the discovery of new matter of defense or new evidence since pub- lication was passed in the original cause, and which could not by the use of due diligence have been discovered or used before the decree was rendered.^ The enrollment or finality of the 1 Beach, Mod. Eq. Pr., §852; 10 W. Va. 2t,8, 312; Laidley v. Story, Eq. PI., §403; Puterbaugh, Merrifield, 7 Leigh (Va.) 346; ■Ch. Pr. (Third Ed.), 30G; 2 Dan., Phipps v. Wise Hotel Co., 116 Va. Ch. Pr. (Fourtli Am. Ed.), 1575 and 739, 82 S. E. 681. "A bill of review note 4; Shipman, Eq. PI., 153, 309, or petition for rehearing will lie 310; Hyman, Moses & Co. v. Smith, only for error apparent on the face 312 313 Bills op Review 227 decree is essential to what is known, by way of pre-eminence, as a bill of review ; ^ for if the decree is not final, and hence only interlocutory, a bill in the nature of a bill of review, or a peti- tion for a rehearing, or a supplemental bill in the nature of a bill of review, is the proper remedy for the correction of such a decree.' The filing of a bill of review is essentially, and in effect, starting a new and independent cause.* Not only must the decree to be reviewed be final, but also it must be an adjudi- cated decree, and not a consent decree.^ § 227. When bill of review virill lie— Decree must be final As appears from the definition, a bill of review will lie only to a final decree.^ A final decree is defined to be one which disposes of the whole subject and gives all the relief that was contemplated by the suit, so that nothing remains to be done in the cause,'' or which adjudicates all the matters in controversy of a decree, for newly-discovered matter of defense, or for newly-dis- covered evidence of a defense known and pleaded; and such newly-dis- covered matter or evidence will not, if known beforehand, be available after publication of the 'decree.'' Eichmond v. Richmond, 62 W. Va. 206, 57 S. E. 736. 2 Story, Eq. PI., § 403. 3 Hyman, Moses & Co. v. Smith, 10 W. Va. 298; Ambrouse v. Kellar, 22 Gratt. (Va.) 769; Kendrick v. Whitney, 28 Gratt. (Va.) 646; Laid- ley V. Merrifield, 7 Leigh (Va.) at p. 353; Claytor v. Anthony, 15 Gratt. (Va.) at p. 526; Ellzey v. Lane, 2 H. and M. (Va.) 589; Story, Eq. PI., §403; Henry v. Davis, 13 W. Va. 230. i Perkins v. Pfalzgraff, 60 W. Va. 121, 53 S. E. 913; Dunfee v. Childs, 59 W. Va. 226, 53 S. E. 209. 5 Manion v. Pahy, 11 W. Va. 482; Prince's Admr. v. McLemore, 108 Va. 269, 61 S. E. 802; Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862 ; McGraw v. Traders' Nat. Bank, 64 W. Va. 509, 518, 63 S. E. 398, and cases cited. There may, per- haps, be an exception in the case of clerical error. See same author- ities. 8 Hyman v. Smith, 10 W. Va. 298; Core V. Strickler, 24 W. Va. 689; Dingess v. Marcum, 41 W. Va. 757, 24 S. E. 624; Battaile v. Hospital, 76 Va. 63; Sheppard v. Starke, 3 Munf. (Va.) 29; Parker v. Logan, 82 Va. 376; Thomson v. Brooke, 76 Va. 160. 7 Battaile v. Hospital, 76 Va. 63; Parker v. Logan, 82 Va. 376 ; Thom- son V. Brooke, 76 Va. 160; Nelson T. Jennings, 2 Pat. and H. (Va.) 369; Rawlings v. Rawlings, 75 Va. 76; Pace v. Flcklin, 76 Va. 292; Johnson v. Anderson, ^6 Va. 771; Jones V. Turner, 81 Va. 709; Yates V. Wilson, 86 Va. 625, 10 S. E. 976; §228 Equity Proceduee 314 between the parties, although much may remain to be done ministerially before the decree can be carried completely into execution.' A final decree is not necessarily the last decree in a cause.' And a decree may be final as to one party and not as to another, depending upon the circumstances of the case.^" § 228. Where bill of review filed and class of cases reached by it. A bill of review must be filed in the court wherein the decree complained of was rendered.'' It lies to correct all errors that appear in the record, except those disclosed by the aid of the evidence taken in the eause,'^ and also excepting those that appear in a consent decree,'' or in a decree, whether interlocu- tory or final, which is pending in the supreme court '■* or which has been affirmed by the supreme court and sent back for fur- ther proceedings.'^ Such a decree will not be disturbed though Core V. Strickler, 24 W. Va. 689; Fowler v. Lewis, 36 W. Va. 130, 131, 14 S. E. 447; Gallatin Land, Coal & Oil Co. V. Davis, 44 W. Va. 109, 28 S. E. 748; StuU v. Harvey, 112 Va. 816, 72 S. E. 701; Collier V. Seward, 113 Va. 228, 74 S. E 155; White Oak Railway Co. v. Gordon, 61 W. Va. 519, 522, 56 S. E. 837. 8 Idem. For a further considera- tion of final decrees, see post, c. 26, Decrees, §§ 594-599. For a sum- mary of the cases, see Richmond v. Richmond, 62 W. Va. 206, 57 S. E. 736. sHill V. Cronin, 56 W. Va. 174, 49 S. E. 132; Barbour et al. v. Tompkins, 58 W. Va. 572, 52 S. E. 707, 3 L. R. A. (N.S.) 715. 10 Jones V. Buckingham Slate Co., 116 Va. 120, 81 S. E. 28. 11 Banks v. Anderson, 2 H. and M. (Va.) 20; Hancock v. Hutcher- son, 76 Va. 609; Vanmeter v. Van- meter, 3 Gratt. (Va.) 142; Laid- ley V. Merrifield, 7 Leigh (Va.)" 353; Rawlings v. Rawlings, 75 Va. 76, 88. 12 Dunn V. Renick, 40 W. Va. 349, 22 S. E. 66; Thompson v. Edwards, 3 W. Va. 659; Middleton v. Selby, 19 W. Va. 172; Rawlings v. Raw- lings, 75 Va. 76 ; Thomson v. Brooke, 76 Va. 160. See post, § 229. 13 Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862. "A decree or order made by consent can not be set aside either by rehearincr or appeal or by bill of review, unless by clerical error anything has been in- serted in the order as by consent, to which the party bad not con- sented, in which case a bill of re- view might lie." Idem. See cases cited in note 5, supra. iiDunfee v. Childs, 59 W. Va. 225, 53 S. E. 209; McLanahan v. Mills, 73 W. Va. 246, 80 S. E. 351. 15 Dunn V. Renick, 40 W. Va. 349, 22 S. E. 66; Mason v. Bridge Co., 20 W. Va. 223; Kent v. Dickinson, 315 Bills of Review § 229 apparently erroneous.^' It may be filed for new evidence aris- ing since the trial, but not for any new matter which reason- able diligence might have procured in time to have been used before the decree was rendered.*' And a bill of review in such a class of eases may be filed even after an affirmance of the decree by the court of appeals,*' whether it be interlocutory or final, if such after-discovered evidence is brought within the rule hereinafter stated *^ and which applies in all cases coming under this class of bills of review.^" A bill of review will lie to a decree taken pro confesso, to correct errors appearing therein, though such errors may be corrected by motion under the statute, the remedy proviided by statute being regarded as only cumulative.^* But a bill of review based on newly-discovered evidence, does not lie to such a decree.^^ § 229. What is error apparent on face of decree. The errors apparent on the face of a decree, constituting errors of law for which a bill of review will lie, must be such as appear in the decree itself, the opinion of the court, or from the pleadings in the cause, and exhibits filed therewith, or such as arise from facts either admitted by the pleadings or stated as facts settled, declared, or allowed by the decree ; " but if the 25 Gratt. (Va.) 817, 821; Sewing 88 Va. 152, 13 S. E. 598; Sewing Machine Co. v. Dunbar, 32 W. Va. Machine Co. v. Dunbar, 32 W. Va. 335, 9 S. E. 237; McLanahan v. 335, 9 S. E. 237; McCall v. Graham, Mills, 73 W. Va. 246, 80 S. E. 351. 1 H. and M. (Va.) 13; West Vir- 16 Shepherd V. Chapman (Va.),21 ginia Pulp & Paper Co. v. Cooper, S. E. 468. 106 S. E. 55 (W. Va. 1921). 17 Middleton v. Selby, 19 W. Va. 21 Bank v. Shirley, 26 W. Va. 167. See Marshall v. Xicolette 563; Gallatin Land, Coal & Oil Co. T u n Tc w T7„ K-ji a^ « V- Davis, 44 W. Va. 109, 28 S. E. Lumber Co., 76 W. Va. 531, 85 S. ^^^ . Kanawha Oil Co. v. Wenner, E. 723, and other cases cited, post^ 71 yV. Va. 477, 479, 76 S. E. 893. § 230. 22 Camden v. Ferrell, 50 W. Va. 18 McLanahan v. Mills, 73 W. Va. 119, 40 S. E. 368; Mcllvaine, Knight 246, 80 b. ii. Sol. gg g g g^g 19 Post, § 230. 23 Rawlings v. Rawlings, 75 Va. 20 Connolly v. Connolly, 32 Gratt. 76, 88 ; Thomson v. Broolce, 76 Va. (Va.) 657; E<=ynold.» v. Reynolds, 160; Hancocl<; v. Hutcherson, 76 Va. [12] §229 Equity Procedure 316 errors complained of be errors of judgment in the determina- tion of facts, such errors cannot be corrected by bill of review; but by appeal only.^^ On a bill of review the evidence can not be examined in order to show that the decree is erroneous in its recitals, findings, or statements of facts.^^ The meaning of the phrase, "error apparent upon the face of the decree," is not so restricted as the words would seem to imply. It embraces all that appears upon the face of the pro- ceedings, including whatever was embodied in the issue.^^ It really means error of law, disclosed by the record, as contra- distinguished from a mistaken conception of fact as shown by the evidence in the cause.^' To determine on bill of review, 609; Core v. Strickler, 24 W. Va. 607; Dunn v. Eenick, 40 W. Va. 349, 22 S. E. 66; Mason v. Bridge Co., 20 W. Va. 223; Sheplierd v. Chapman (Va.), 21 S. E. 468; State Bank v. Blanehard, 90 Va. 27, 17 S. E. 742; Webb v. Pell, 3 Paige Cli. (X. Y.) 368, 3 Law. Ed. 191; Valz v. Coiner, 110 Va. 467, 66 S. E. 730; Pliipps v. Wise Hotel Co., 116 Va. 739, 82 S. E. 681. "All of the authorities agree that, for the purpose of examining all errors of law, the pleadings and other proceedings in the cause are to be looked to upon a bill of re- view, as tliey are as much a part of the record as the decree com- plained of itself." Sharp v. Shenan- doah Furnace Co., 100 Va. 27, 40 S. E. 103. Likewise, the e.Khibits with the bill, being a part of the bill, will be looked to. Snyder v. Middle States, etc.. Construction Co., 52 W. Va. 655, 658, 44 S. E. 250. =< Rawlings v. Rawlings, 75 Va. 76; Thomson v. Brooke, 76 Va. 160; Core V. Strickler, 24 W. Va. 697; Wethered v. Elliott, 45 W. Va. 436, 32 S. E. 209; Dunfee v. Childs, 59 W. Va. 225, 229, 53 S. E. 209: Kanawha Oil Co. v. Wenner, 71 W. Va. 477, 76 S. E. 893; Garten V. Layton, 76 W. Va. 63, 84 S. E. 1058; Marshall v. Nicolette Lum- ber Co., 76 W. Va. 531, 85 S. E. 723. 25 Hancock v. Hutcherson, 76 Va. 609; Lorentz v. Lorentz, 32 W. Va. 556, 9 S. E. 886; Ashford v. Pat- ton, 70 Ala. 479; Ward v. Kent, 6 Lea (Tenn.) 128; Wood v. Wood, 59 Ark. 441, 27 S. W. 641. 43 Am. St. Rep. 42, 28 L. R. A. 157; Thomp- son V. Edwards, 3 W. Va. 6.59: Dunfee v. Childs, 59 W. Va. 22.i, 229, 53 S. E. 209; Kanawha Oil Co. V. Wenner, 71 W. Va. 477, 76 S. E. 803; Garten v. Layton, 76 W. Va. 63, 84 S. E. 105S; Marshall %. Xicolettc Lumber Co., 76 W. Va. 531, 85 S. E. 723. -'■' Henry v. Davis. 13 W. Va. 230; Mason v. Harper's Ferry Bridge Co., 20 W. Va. 223; Snyder v. Middle States, etc., Construction Co., 52 W. Va. 655, 658, 44 S. E. 250. 2'Middleton v. Selby, 19 W. Va. 167; Beatty v. Barley, 97 Va. 11, 32 S. E. 794; Rawlings ». Raw- lings, 75 Va. 76. 317 Bills of Review § 230 whether or not error of law exists, the court will examine the original bill,^^ the answer filed in the cause,^' all orders and decrees made and entered therein,'" the commissioner's report so far as errors on the face thereof are ooneerned,^^ and all other other proceedings,'^ to ascertain whether upon the whole ease error of law has been committed.'' § 230. What suflScient newly-discovered matter to sustain bill of review. The law is well settled, that to maintain a bill of review on the ground of newly-discovered evidence great caution should be observed.'* The evidence must be relevant and material, such as would probably have produced a different result had it been used at the hearing,'^ and such as to call for a different decree from the one rendered. It must not have been known to the plaintiff in the bill of review, and he must not have been able to have known of it by the use of due diligence, in time to have used it in the suit before the decree rendered therein." And 28 Parker v. Billiard, 75 Va. 418: 83 Va. 93, 1 S. E. 599; Putnam v. Axtell V. Pulsifer, 155 111. 141, 39 Day, 22 Wall (U. S.) 60, 22 L. N. E. 615, 618; Ebert v. Gerding, Ed. 764; Wroten v. Armat, 31 Gratt. 116 111. 216, 5 N. E. 591, 504; Sny- (Va.) 260. der V. Middle States, etc., Con- ^4 Sewing Machine Co. v. Dunbar, struction Co., 52 W. Va. 655, 658, 32 W. Va. 335, 9 S. E. 237 ; Camp- 44 S. E. 250. bell v. Campbell, 22 Gratt. (Va.) 29/dem. 649. 30 3 Enc. PI. and Pr., 578, and the ^s Hatcher v. Hatcher, 77 Va. 600 ; cases cited. Snyder v. Middle Carter v. Allen, 21 Gratt. (Va.) 241, States, etc., Construction Co., 52 W. 245 ; Lorentz v. Lorentz, 32 W. Va. Va. 655, 658, 44 S. E. 250. 556, 9 S. E. S86. SI Bank v. Shirley, 26 W. Va. 36 Sewing Machine Co. v. Dunbar, 563; Ambler v. Macon, 4 Call (Va.) 32 W. Va. 335, 9 R. E. 237; Nichols 605. -if. Kichols, 8 W. Va. 174: Wethered 32Middleton v. Selby, 19 W. Va. v. Elliott, 45 W. Va. 436. 32 S. E. 167; Pracht & Co. v. Lange, 81 Va. 209; Livingston v. Hubbs. 3 Johns. 711. Ch. (K. Y.) 124, 1 Law. Ed. 564, 33Middleton v. Selby, 19 W. Va. note, citing Boyden v. Reed, 55 111. 167; Pracht & Co. v. Lange, 81 Va. 464; Allgood v. Bank of Piedmont, 711; Beatty v. Barley, 97 Va. 11, 130 Ala. 237, 29 So. 855. 32 S. E. 794 ; Daingerfield v. Smith, 37 Parker v. Logan, 82 Va. 377 ; § 231 Equity Proceduke 318 it must not be merely confirmatory or cumulative,^* nor go to impeach the character of witnesses already examined in the case.'^ A party cannot maintain a bill of review to set aside a decree by reason of the discovery of new evidence or a mistake in a long-settled account, existent at the time of the decree, and of which he was ignorant by reason of his own negligence and inattention to business.^" § 231. Within what time bill of review must be filed. By the express provisions of the statute, no bill of review shall be allowed to a formal decree in Virginia " or "West Vir- ginia *^ unless it be exhibited within one year in Virginia and within eight months in "West Virginia next after such decree, except that an infant, or insane person may file the same within one year in Virginia and within eight months in "West Virginia after the removal of his or her disability. Carter v. Allen, 21 Gratt. (Va.) ing, a different result on the merits, 241 ; Dingess v. Marcum, 41 W. Va. and must not be merely accumula- 757, 24 S. E. 624; Wethered v. tive." Durbin v. Roanoke Building Elliott, 45 W. Va. 436, 32 S. E. 209; Co., 108 Va. 468, 62 S. E. 33!). Marshall v. Nieolette Lumber Co., ■*» Bodkin v. Rollyson, 48 W. Va. 76 W. Va. 531, 85 S. E. 723. 453, 37 S. E. 617. 38 Nichols V. Nichols, 8 W. Va. " Va. Code, 1004, § 3435. This 174; Wethered v. Elliott, 45 W. Va. time limitation is subject to no ex- 436, 32 S. E. 209; Randolph v. Ran- ceptiona except those contained in dolph, 1 H. and M. (Va.) 180; the statute. "No inherent equity Sewing Maeh. Co. v. Dunbar, 32 W. can create an exception where the Va. 335, 9 S. E. 237; Marshall v. statute makes none, and the mere Nieolette Lumber Co., 76 W. Va. want of knowledge of a creditor is 531, 85 S. E. 723. insufficient to suspend the operation 39 Kern v. Wyatt, 89 Va. 885, 17 of the statute." Matthews & Co. v. S. E. 549. Progress Co., 108 Va. 777, 62 S. E. "To entitle a party to a bill of 924. review on the ground of after-dis- ^2 w. Va. Acts, 1921, c. 58. Prior covered evidence, the evidence must to 1909, the time was three years, have been discovered since the ren- Dunbar v. Dunbar, 67 W. Va. 518, dition of the final decree, and it 68 S. E. 120. Prior to Acts of 1921, must appear that it could not have the time was one year. W. Va. been discovered earlier by the exer- Code, 1913, c. 133, § 5. Decrees pre- cise of reasonable diligence. It must nounced prior to Acts of 1921 are be material and such as, if true, expressly excepted from operation ought to produce, on another hear- of the amendment. 319 Bills of Review §232 § 232. Leave of court as to filing bill of review. If the bill of review is based on error of law, it is now the practice in "West Virginia to file it without leave of court,^* though formerly it was usual both in Virginia and West Vir- ginia to apply in the first instance for leave to file a bill of review, whether for error of law or upon the ground of newly- discovered evidence.^^ The modern West Virginia rule is sup- ported by the wei"ght of authority in other jurisdictions.*^ And, whatever the trend of former Virginia decisions, it would seem that, by virtue of statute, the same rule now prevails in Vir- ginia.*' 43Dunfee v. Childs, 45 W. Va. 155, 30 S. E. 102; West v. Shaw, 32 W. Va. at p. 199, 9 S. E. 81. 44 Amiss V. McGimiis, 12 W. Va. 371: Dunfee v. Childs, 45 W. Va. 155, 30 S. E. 102; Riggs v. Huffman, 33 W. Va. 430, 10 S. E. 795; Heer- mans v. Montague, 2 Va. Dec. 6, 20 S. E. 899; Hill V. Bowyer, 18 Gratt. (Va.) 364; Williamson v. Led- better, 2 Munf. (Va.) 521; Lee v. Braxton, 5 Call (Va.) 450; Connolly V. Connolly, 32 Gratt. (Va.) 657. In the monographic note to Bills of Review, appearing in 20 Va. Rep. Ann. 248 (22 Gratt. 696), is found the following with reference to the practice as to this matter in courts of equity in Virginia: "A bill of review whether for error apparent on the record or on the ground of after-discovered new matter can only be filed by leave of court. This rule is to prevent clamorous litigants who have no just cause of complaint from reopening a final decree on frivolous grounds. Especially is such leave of court necessary since an appeal lies to the refusal of the court to allow a bill of review in a proper case. Diamond, etc., Co. v. Rarig, 93 Va. 595, 25 S. E. 894; Legrand v. Francisco, 3 Munf. 83; Heermans v. Montague (Va. ), 20 S. E. 899; Davis Sewing Machine Co. V. Dunbar, 32 W. Va. 335, 9 S. E. 237; Hatcher v. Hatcher, 77 Va. 600; Hill V. Bowyer, 18 Gratt. 364; Amiss V. McGinnis, 12 W. Va. 399; Bowyer v. Lewis, 1 H. and M. 554; Williamson v. Ledbetter, 2 Munf. 521; Lee v. Braxton, 5 Call 459; Roberts v. Stanton, 2 Munf. 133; Connolly v. Connolly, 32 Gratt. 660; Ambrose v. Keller, 22 Gratt. 769; Whitten v. Saunders, 75 Va. 563." 45 2 Dan., Ch. Pr. (Fourth Am. Ed.), 1577, note 2, citing Elliott v. Balcom, 11 Gray (Mass.) 286; Anon., 2 P. Wms. 283; Perry v. Philips, 17 Ves. 178; Denson v. Denson, 33 Miss. (4 George) 500. See Webb v. Pell, 1 Paige Oh. (ISr. Y. ) 564; Edmonson v. Mosely, 4 J. J. Marsh (Ky.) 500; Bleight v. Mcllvoy, 4 T. B. Monroe (Ky.) 145; Creed v. Lancaster Bank, 1 Ohio St. 1; 2 Beach, Mod. Eq. Pr., § 866, and cases cited ; Puterbaugh, Ch. Pr. (Third Ed.), 313; 3 Ene. PI. and Pr., 586, and cases cited; 1 Whitehouse, Eq. Prac, 281. 48 "And in no ease shall such a bill be filed, without the leave of § 233 Equity Procedure 320 All authorities agree, however, that when the bill of review is founded upon newly-discovered evidence, it can be filed only by express leave of the court." And the permission to file such a bill rests in the sound discretion of the court." It may, therefore, be refused, although the facts, if admitted, would change the decree, when the court looking at all the circum- stances shall deem it productive of mischief to innocent par- ties, or for any other cause inadvisable." If such a bill of review be filed without leave of the court it will be ordered to be taken from the court files,^" or will be dismissed on demurrer or motion. '"^ § 233. How leave to file a bill of review obtained. The application for leave to file a bill of review may be made by petition or motion/^ accompanied by an affidavit of the party showing that the evidence alleged to have been discovered since the final decree was made, is new, that it was not known to him prior to the entry of the decree, and that he could not have the court first obtained, unless it be § 866 ; Eichmond v. Richmond, 62 for error of law apparent upon the W. Va. 206, 221, 57 R. E. 7.36. fa<;e of the record." Va. Code, 1904, lo Hyman, Mosea & Co. v. Smith, § 3435. 10 W. Va. at p. 314. in the opinion " Nichols V. Nichols, 8 W. Va. of the court, citing Story, Eq. PI., 174; Dunfee v. Childs, 45 W. Va. §417; 2 Beach, Mod. Eq. Pr., § 867; 155, 30 S. E. 102; Hatcher v. citing Putnam v. Claris, 36 N. J. Hatcher, 77 Va. 600; Connolly v. Eq. 33, 36; Ricker v. Powell, 100 Connolly, 32 Gratt. (Va.) 660; U. S. 104, 25 L. Ed. 527; Puter- Whitten V. Saunders, 75 Va. 563 ; 2 haugh, Cli. Pr. (Tliird Ed.), 313; Beach, Mod. Eq. Pr., §866; Puter- 2 Dan., Ch. Pr. (Fourth Am. Ed.), baugh, Ch. Pr. (Third Ed.), 312; 2 1577 and note 2. Dan., Ch. Pr. (Fourth Am. Ed.), so 2 Beach, Mod. Eq. Pr., §866, 1677, note; 1 Whitehouse, Eq. Prac, citing Buckingham v. Corning, 29 285. It is so provided by statute N. J. Eq. 238; Carroll v. Parran, 1 (n Virginia. Va. Cbde, 1904, § 343.5, Bland (Md.) 125, note, note 46, supra. " 3 Enc. PI. and Pr., 5S9. 590. 48 Sewing Machine Co. V. Dunbar, 52 1 Bart., Ch. Pr. (2nd Ed.), 32 W. Va. 335, 9 S. E. 237; Hyman, 354; 2 Dan., Ch. Pr., 1578; 2 Dan., Moses & Co. V. Smith, 10 W. Va. at Ch. Pr. (4th Am. Ed.), 1578, and p. 314; 2 Beach, Mod. Eq. Pr., note 1; 2 Beach, Mod. Eq. Pr., 321 Bills of Review § 234 discovered it, by the exercise of due diligence, in time to have obtained it before the decree complained of was rendered.^' An examination of the decisions, at least in Virginia and "West Virginia, justifies the statement that the usual and more practical method is to present the bill to the court or judge, containing all the necessary and requisite averments of such bill, with the required affidavit appended to it, and to ask the court for leave to file the same." On an application to file a bill of review, every material averment of the bill must be taken as true.^^ It is said that if there be any doubt, incident to the charac- ter of the decree, whether the proceedings should be by petition for rehearing or by bill of review, Ihere should be a petition in writing; as a mere motion, though supported by the proper affidavit, will not be treated as a bill of review in case the court should determine the decree to be final. ^^ § 234. Who may file a bill of review. A bill of review may be filed only by a person who was a party or privy to the suit in which the decree to be reviewed was rendered,^' and who has been aggrieved by the errors assigned,'^ or has some interest in the question intended to be 53 Kern v. Wyatt, 89 Va. 885, ( Va. ) 657 ; Brown v. Nutter, 54 17 S. E. 552; Diamond, etc., Co. W. Va. 82, 46 S. E. .375. V. Rarig, 93 Va. 595, 25 S. E. 894 ; 56 1 Bart., Ch. Pr. ( 2nd Ed. ) , WhJtten V. Saunders, 75 Va. 563; 360, 361. Norfolk Trust Co. v. Foster, 78 67 Heernians v. Montague, 2 Va. Va. 413; Nichols v. Nichols, 8 W. Dec. 6, 20 S. E. 899; Amiss v. Mc- Va. 174. Gi.nnis, 12 W. Va. 371; Thompson MKern v. Wyatt, 89 Va. 885, v. Maxwell, 05 U. S. 391, 24 L. Ed. 17 S. E. 552; Whitten v. Saun- 481; Fitzgerald v. Curamings, 1 ders, 75 Va. 563; Norfolk Trust Lea (Tenn.) 2.32; Goodrich v. Co. V. Foster, 78 Va. 413; Nichols Tliompsjn, 88 111. 206; Mackey v. V. Nichols, 8 W. Va. 174; Armstead Maxin, 63 W. Va. 14, 17, 59 S. E. V. Bailey, 83 Va. 242, 2 S. E. 38; 742. But see Kanawha Hardwood Dunn V. Renick, 40 W. Va. 349, 22 Co. »'. Evans, 65 W. Va. 622, 64 S. E. 66; Ambrose v. Keller, 22 S. E. 917. Gratt. (Va.) 769, 773. 58 Heermans v. Montague, 2 Va. 65 Davis V. Morris, 76 Va. 21, Dec. 6, 20 S. E. 899; Chancellor v. 26; Connolly v. Connolly, 32 Gratt. Spencer, 40 W. Va. 337, 21 S. E. § 234 Equity Pkoceduee 322 presented by such bill and will be benefited by a reversal of the decree.'' But persons with the necessary interest to make them parties to a bill of review may be plaintiffs or defendants to such bill, without respect to their position as such in the origi- nal bill.'" Hence, a person can not file a bill of review who was not a party to the original suit, and whose rights are in no manner affected by the decree sought to be reviewed, ^^ and who will not be benefited by a reversal or modification of the de- cree."^ Consequently, the assignee of a party to a suit can not maintain a bill of review ;^^ nor can such a bill be maintained by persons, although they have an interest in the cause, not aggrieved by the particular errors assigned in the decree sought to be reviewed, however injuriously the decree may affect the rights of third persons/'' There seems to be an apparent exception to the rule that no one but a party to the original bill can file a bill of review. Thus, where a final decree has been entered in a suit brought to contest the validity of a will, any person interested who was not a party to the original suit may file a bill of review upon the ground of after-discovered evidence, not cumulative, and material and important, and have the decree sustaining or set- ting aside the will, as the case may be, reviewed, as in other cases of bills of review for newly-discovered evidence.'^ And 1011; Laidley v. Kline, 25 W. Va. 62 Hall v. Lowtlier, 22 W. Va. 208; Webb v. Pell, 3 Paiso Cli. (N. .570. Y.) 368, 3 Law. Ed. I!ll; Lansing M Gibson v. Green, 80 Va. 524, V. Albany Ins. Co., Hopk. Ch. IN. 16 S. K. 661; Armstead v. Bailey, Y.) 102, 2 L. Ed. 357. 83 Va. 242, 2 S. E. 38; Thompson 59 Heernians v. Montague, 2 Va. v. Maxwell, 95 U. S. 391, 24 L. Ed. Dec. 6, 20 S. E. 809; Laidley v. 481. Kline, 25 W. Va. 208; Webb V. Pell, 64 Story, Eq. PI. (0th Ed.), 3 Paige Cli. (N. Y.) 368, 3 L. Ed. §4f0; Thomas v. Harvie, 10 191; Hall v. Lowtlier, 22 W. Va. Wheat. (U. S.) 146; Whiting v. 570; Cooch V. Cooch, 18 Ohio 146. Bank, 13 Pet. (U. S.) 6. 60 Sloan V. Whiteman, 6 Ind. 65 Connolly v. Connolly, .32 Gratt. 434: Hargraves v. Lewis, 7 Ga. Va. 657; Dower v. Church, 21 W. lis. Va. 23, 49; Singleton v. Singleton, 61 Clianccllor v. Spencer, 40 W. 8 B. Mon. (Ky.) 340. Va. 337, 21 S. E. 1011. 323 Bills of Review § 236 it is said that it is competent for a person not a party to the former suit, but whose interest may in some way have been affected by the proceedings had therein, to come in by petition to be made a party, and then to aslt a rehearing of a former decree.*^ § 235. Parties defendant to a bill of review. All the parties to the original suit, if living, should be made parties defendant to a bill of review,^' and the necessary defend- ants to such a bill are as essential as they are to an original bill.^^ If the original parties to the suit be dead, their legal representatives must be made parties to such bill."'' It is a settled rule that all persons whose interests are to be affected by the decree that may be entered on the bill of review must be made parties to such bill.'" Thus, where a bill of review is brought to review a decree confirming a judicial sale, the purchasers at such sale are necessary parties." But a pur- chaser of property pendente lite is not a necessary party to a bill of review, as he is bound by any decree that may be ren- dered in the cause, though entered upon a bill of review.'^ § 236. The essential allegations of a bill of review. The form of a bill of review is a matter of little consequence, as the court will treat it as such a bill, though its form be that 66 Heermans v. Montague, 2 Va. and have it treated as a cross-bill Dee. 6, 20 S. E. at p. 003, citing in the original cause." Kanawha Thompson v. Railroad Co., 95 U. S. Hardwood Co. ■/. Evans, 65 VV. Va. 391; 2 Daniell, Ch. Prac, 1579; 622, 64 S. E. 917. Webb V. Pell, 3 Paige (N. Y.) 368; 67 Amiss v. McGinnis, 12 W. Va. Story, Eq. PI., §401; Thomas v.. 371; Heermans v. Montague, 2 Va. Harvie's Heirs, 10 Wheat. (U. S.) Dec. 6, 20 S. E. 899. 146; Whiting v. Bank, 13 Pet. (U. 68 Banli v. Wilson, 35 W. Va. 36, S.) 6. "A person interested in the 13 S. E. 58. subject matter of a bill in equity 69 2 Beach, Mod. Eq. Pr., §873; and a decree thereon, but not made Nichols v. Nichols, 8 W. Va. 175. a party thereto, may, after final 70 Turner v. Berry, 8 III. 541 ; decree therein, file an original bill Ludlow v. Kidd, 2 Ohio 372. in the nature of a. bill of review, 71 Heermans v. Montague, 2 Va. for correction of any adjudication Dec. 6, 20 S. E. 899. therein to his prejudice and vindiea- 72 Clark v. Farrow, 10 B. Mon. tion of his rights in the premises (Ky.) 446, 52 Am. Dec. 552. § 236 Equity Procedure 324 of a mere petition, provided it embodies the substantial require- ments of a bill of review." In substance, a bill of review should state the former bill, answer, and the proceedings thereon '* (excepting the evidence," unless the bill be for new matter, when the evidence may, perhaps, be adverted to for the mere purpose of showing the relevancy and bearing of the new mat- ter sought to be introduced) ; " and the decree complained of." Copies of the original bill, answer and decree, as well as the other papers and orders in the cause, unless these matters are fully embraced in the bill of review, should be filed as exhibits with the bill of review.'^ A mere synopsis, or skeleton, of the record is not sufficient.'^ The errors by which the party exhibit- ing the bill conceives himself aggrieved should be alleged.'" The bill should show that the party filing it is interested in the matter disposed of or adjudicated by the decree sought to be reviewed, what that interest is, and that he will be benefited by a reversal or modification of the decree.^^ There should be named, either in the caption or body of the bill, the proper person or persons as defendants thereto.*^ But it must not 73 Martin v. Smith, 2.5 W. Va. 349, 22 S. E. 66; Axtell v. Pulsifer, at p. 583; Sturm v. Fleming, 22 15.5 111. 141, 39 K. E. 615. W. Va. 413; Sands v. Lynham, 27 78 Axtell v. Pulsifer, 155 111. 141, Gratt. (Va.) 291; Jones v. Grim 39 N. E. 615; Judson v. Stephens, and Peck, 66 W, Va. 301, 303, 66 75 111. 255; Goodricli v. Thomp- S. E. 367; McLanahan v. Mills, 73 son, 8S 111. 206; Kuttner v. Haines, W. Va. 246, 253, 80 S. E. 351, and 1.35 111. 382, 25 N. E. 752, 25 Am. cases cited. St. Rep. 370; Aholtz v. Durfee, 122 74 Amiss V. McGinnis, 12 W. Va. 111. 286, 13 X. E. 645. 371 ; Dunn v. Renick, 40 W. Va. 79 Kuttner v. Haines, 135 111. 349, 22 S. E. 66 ; Ilatelier v. Hatch- 382, 25 X. E. 752 ; Aholtz v. Dur- «i-, 77 Va. 600; Axtell v. Pul- fee, 122 111. 286, 13 X". E. 645. sifer, 155 111. 141, 39 X. E. 615, so Amiss v. McGinnis, 12 W. Va. 618; Judson v. Stephens, 75 111. 371; Dunn v. Renick, 40 W. Va. 256; Goodrich v. Thompson, 88 III. 349, 22 S. E. 66. 206. "Riggs V. Huffman, 33 W. Va. 75Bviffinston v. Harvey, 95 U. S. 426, 10 S. E. 795; Laidley v. Kline, 99, 24 L. Ed. 381. 25 W. Va. 208. 76 Idem. S2 Bank v. Wilson, 35 W. Va. 37, 77 Amiss V. McGinnis, 12 W. Va. 13 S. E. 58. 371; Dunm v. Renick, 40 W. Va. 325 Bills of Review § 2361 contain matters by way of amendment or supplement, which would have a tendency to create new issues, as such a course is foreign to the purposes of a bill of review.*' A bill of review for newly-discovered evidence must so state such evidence as lo enable the court to see, on inspecting it, that if it had been brought forward it would probably have changed the character of the decree.** It must be averred that the evidence is new and the evidence must be so stated that the defendant can answer it understandingly, and thus present a di- rect issue to the court.*' And it must be averred that the evi- dence could not have been discovered by reasonable diligence before the decree was enrolled.*^ The bill must not allege that the party desiring to file it expects to prove certain alleged facts, but it must state distinctly the evidence on which the party relies, must file aflSdavits of witnesses in support of it,*^ and also must be supported by the affidavit verifying its allegations already described.** And it should appear from the bill itself that it is filed within the time allowed by law for filing such bill.*' The prayer of the bill may be that the decree be reviewed and reversed in the point complained of, if it has not been car- 83 Snyder v. Botkin, 37 W. Va. (Va.) 529; Amiss v. McGinnis, 12 355, 16 S. E. 591. See dissenting W. Va. 371. opinion of Poffenbarger, P., in Mc- "If a bill of review for after-dis- Lanahan v. Mills, 73 W. Va. 246, covered evidence is swam to by the 254, SO S. E. 351. plaintiff, and tenders the afBdavit Si Whitten v. Saunders, 75 Va. of the witness who is to testify to 563. the new matter, and it appears that 85 Idem; Trevelyan v. Lofft, 83 the evidence is new and could not Va. 141, 1 S. E. 901. have been discovered by the use of 86 McLanahan v. Mills, 73 W. Va. ordinary diligence in time for the 246, 252, 80 S. E. 351. . former trial, and is relevant to the 87 Whitten v. Saunders, 75 Va. issues made by the pleading and 563; Armstead v. Bailey, 83 Va. such as, if true, ought to produce 242, 2 S. E. 38; Carter v. Allan, 21 a different result on a rehearing Gratt. (Va.) 241; Hale v. Pack, 10 of the case, it complies with the W. Va. 145. rules of practice of courts of chan- 88 Ante, § 233. eery with respect to such bills." 89 2 Dan., Ch. Pr. (4th Am. Ed.), Becker v. Johnson, 111 Va. 245, 68 1583; Shepherd v. Larue, 6 Munf. S. E. 986. § 237 Equity Peocedure 326 ried into execution; but if it has been carried into execution, the bill may pray the further decree of the court to put the party complaining of the former decree into the situation in which he v/ould have been if that decree had not been exe- cuted."" If the bill is brought to review the reversal of a former decree, it may pray that the original decree may stand." § 237. Some instances illustrative of the use of a bill of review. When the bill is filed on the ground of error, the decree com- plained of must be contrary to some statutory enactment, or some principle or rule of law or equity, recognized and acknowl- edged, or settled by decision, or be at variance with the forms and practice of the court; but the bill can not be maintained, where the error is mere matter of form, as because a ease was not regularly set for hearing.^^ Instances of the maintenance of bills of review are, where an absolute decree against infants has been rendered, without any plea or answer in their behalf, they, having had no day in court to show cause against it ; "' where the court, having juris- diction of the parties and subject matter, renders a decree which is erroneous because the plaintiif had no cause of action 90 2 Beach, Mod. Eq. Pr., § 875, The infant is given six months uu- citing Story, Eq. PI. (10th Ed.), der the statute to show cause in § 420. It also may pray an in- like manner as if the decree or junction agaiinst enforcement of the order contained such provision. W. decree. Va. Code, 1904, § 3435 ; W. Va. Code, 1913, c. 132, § 7. The Va. Code, 1913, c. 133, §5. game statute obtains in Virginia. 91 Idem; Puterbaugh, Ch. PI. and Va. Code, 1904, § 3424. Hence the Pr. (3d Ed), 318. case of Lee v. Braxton, supra, can 92 2 Dan., C'u. Pr. (4th Am. Ed.), no longer be followed, and the doc- 1576; 1 Bart., Ch. Pr. (2d Ed.), trine announced in the case is obao- 357; Story, Eq. PI., §411. lete, so far as providing in the de- 93 Lee V. Braxton, 5 Call. (Va.) cree a day in court for infants is 459. A decree may now be made concerned. Also, a bill of review against ar infant without inserting will lie to a decree against an in- a provision in it allowing him time fant, without proof an'^ upon a bill to show cause against such decree taken for confessed. Harrison v. within a certain time after he at- Harman, 80 W. Va. 68, 92 S. E. tains the age of twenty-one years. 460. 327 Bills op Review § 238 or right to bring the suit ; '* where there is an error in the decree in the calculation of interest ; ^^ where a decree is void, because foreign to the purpose and nature of the suit ; ^* where a decree ascertains the amounts and priorities of all the debts sought to be established in the cause, as liens, on real estate, orders said debts to be paid and the sale of the real estate on which said debts are adjudged to be liens.^' And, subject to the rule that error of fact can not be reached by bill of review, on such a bill a court will revise, correct, or reverse its own decree for error apparent upon the face thereof whenever a court of appeals would do so for the same cause.'^ § 238; Some instances illustrative of the disallowance of a bill of review. Instances of the courts' refusal to sustain a bill of review are: where there was want of notice at the time and place of a commissioner's taking an account, or the court acted upon the report too soon, no exceptions having been taken before entry of the decree ; '' where the party was prevented from proving certain important facts, through wrong advice by one of his counsel, and other counsel was unable to attend to the ease when called for trial, which circumstance was unknown to the party until after the decree was rendered ; ^°'' where certain documents, on which the plaintiff's right to a decree depended, and which he intended to exhibit with his original bill, were lost or mislaid by his counsel and not found until after the decree was entered ; ^"^ where a decree directs the sale of real 94 Peirce V. Graham, 85 Va. 227, 97 Core v. Strickler, 24 W. Va. 7 S. E. 189. 689. 95 Bank v. Shirley, 26 W. Va. 98 Puterbaugh, Ch. Pr. (3d Ed.), 563. An error of this kind may 310. also be corrected by motion on 99 Winston v. Johnson, 2 Munf. notice under § 5, c. 134, W. Va. (Va I 305. Code. 100 Franklin v. Wilkinson, 3 96Waldron v. Harvey, 54 W. Va. Munf. (Va.) 112. 608, 46 S. E. 603, 102 Am. St. Eep. loi Jones v. Pilchfr, 6 Munf. 959. (Va.) 425; Wetliered v. Elliott, 45 W. Va. 436, 32 S. E. 209. § 238 Equity Procedure 328 estate under an insufficient description which might injure the sale, it not appearing that any such injury actually occurred, and no exceptions having been taken- to the report of sale ; ^"^ where a justice of the peace failed to forward a deposition taken by him to the clerk of the court in which the cause was pending and the cause was heard and decided without it.^"^ And a bill, of review cannot be used to set aside a decree made by consent of parties, nor a decree procured by fraud, except, possibly, to relieve from such clerical errors as have been inserted in the decree without the consent of any of the parties to the suit injured, or some matter not contemplated by the parties to the decree and which is apparent upon the face of such decree.'"* "Where a sale of real estate is made under a decree of court and confirmed without exception, such sale is not void because made by a commissioner not previously authorized to make it; and, therefore, a bill of review does not lie to correct the irregular- ity of such sale."^ In Virginia, a bill of review will not lie to modify a decree of sale in an action to enforce a vendor's lien, since a bill of review is a proper remedy only where a final decree is to be corrected, the decree of sale being interlocutory only.*"* The rule in West Virginia is otherwise, as a decree of sale in that state is treated as final for the purposes of a bill of review.'"'' An error in reaching a wrong conclusion as to facts on the evidence is not eorrectible by bill of review, but by appeal.'"* The instances cited above and in the previous sec- 102 Vanmeter v. Vanmeter, 3 correction, a bill of review being Gratt. (Va.) 148. one remedy, see post, §374. i03Aiday v. Harvey, 9 Gratt. 1 05 Core v. Strickler, 24 W. Va. /Va; 454. 689. 104 Stewart v. Stewart, 40 W. "e Bellinger v. Foltz, 93 Va. 729, Va. 65, 20 S. E. 862; Morris v. Pey- 25 S. E. 998; Spoor v. Tilson, 97 ton, 29 W. Va. at pp. 213, 214. See Va. 279, 33 S. E. 609. §226, ante, note 5, and cases cited. 107 Core v. Strickler, 24 W. Va- Also, see Law v. Law, 55 W. Va. 4, 689; Barbour, et al. v. Tompkins, 46 S. E. 697, and cases cited. 58 W. ''''a. 572, 52 S. E. 707, 3 L. As to what 's a clerical error as R. A. (N.S.) 715. contemplated by the law, and which 108 Wetlierod v. Elliott, 45 W. Va. may be readied by the various meth- 436, 32 S. E. 209. See § 229, ante, ods of review for the purposes of and cases cited. 329 Bills of. Review §239 tion are merely illustrative. Numerous additional illustratioris may be found in both early and recent Virginia and West Vir- ginia cases.*"' § 239. Performance of the decree before filing bill of review. The text writers and the courts seem to be agreed that, as a general rule, leave to file a bill of review will not be granted unless the decree has been performed ; **" but where a decree directs the payment of money or costs, and the defendant is unable to pay the same, a bill of review will not be denied on the mere ground of the nonperformance of the decree ; *** nor will performance be required where it would extinguish the right of the party, as the making of an assurance or release, acknowledging satisfaction, cancelling bonds or evidence and the like.**^ So performance may be dispensed with where the money to secure the performance of the decree has been deposited in court, or where the decree directs payment to an irresponsible nonresident, or where it would destroy the subject of litiga- tion."' To successfully raise the objection that a bill of review has been filed before the performance of the decree, the defendant should move the court, upon his first appearance, to have the bill dismissed or struck from the files.'*^ It is held that, to avoid performance on any ground hereinbefore stated, so as to maintain a bill of review, an order of court must be obtained dispensing with performance.*^^ 109 See the title "Bill of Review," Ch. (N. Y.) 124, 1 Law. Ed. 563; Encyo. Dig. Va. and W. Va. Rep. Puterbaugh, Ch. Pr. (3d Ed.), 313; and Supplements. 2 Beach., Mod. Eq. Pr., § 869 ; Story, 110 Puterbaugh, Ch. Pr. (3d Ed.), Eq. PI., §406; 2 Dan., Ch. Pr. (4th 813; 2 Beach, Mod. Eq. Pr., §870; Am. Ed.), 1582; 3 Ene. PI. and Pr., Story, Eq. PI., §406; 2 Dan., Ch. 586. Pr. (4th Am. Ed.), 1582; 3 Enc. "2 Mem. PI. and Pr., 585 ; Wiser v. Blachly, "3 3 Enc. PI. and Pr., 586. 2 Johns. Ch. (N. Y.) 488, 1 Law. i" Puterbaugh, Ch. Pr. (3d Ed.), Ed. 460; Livingston v. Hubbs, 3 314. Johns. Ch. (N. Y.) 124, 1 Law. Ed. ii» Kuttner v. Haines, 135 111. 563. 382, 25 N". E. 752, 25 Am. St. Rep. 111 Livingston t. Hubbs, 3 Johns. 370. §240 Equity Procedure 330 But in Virginia and West Virginia, inasmuch as it is pro- vided ay statute "* that a court or judge allowing a bill of review may award an injunction to the decree to be reviewed, it may justly be concluded that performance of a decree, or an excuse from such performance of a decree, is not necessary in order to maintain a bill of review in either of these states. ■''' § 240. Defense to bill of review for errors of law. The usual mode of making defense to a bill of review for error of law apparent upon the face of the decree, is by demur- rer;^" and if the decree is fairly stated in the bill, it is the proper and sure defense.^^' As stated by a recent author, the grounds of demurrer usually are: (1) that the bill is erroneous or defective in its recitals of the proceedings and decree sought to be reviewed; (2) that it is not brought within the time now. Va. Code, 1913, e. 133, § 5; Va. Code, 1904, § 3435. ii''An examination of many of the cases reported in these states has been made, and in no instance does it appear that performance was made a, condition precedent to the filing or maintenance of the bill. The following are some of the cases leading to the concliisioni announced in the text: Gallatin Land, Coal and CHI Co. v. Davis, 44 W. Va. 109, 28 S. E. 747; Lafferty v. Lafiferty, 42 W. Va. 783, 26 S. E. 262 ; Chan- cellor V. Spencer, 40 W. Va. 337, 21 S. E. 1011; Hill V. Maury, 21 W. Va. 162; McCoy v. Allen, 16 W. Va. 724; Claytor v. Anthony, 15 Gratt. (Va.) 518; Norfolk Trust Co. v. Poster, 78 Va. 413; Whitten v. Saunders, 75 Va. 563. lis Webb V. Pell, 3 Paige Ch. (N. y.) 368, 3 Law. Ed. 191 and note; 2 Beach, Mod. Eq. Pr., §876; 2 Dan., Ch. Pr. (4th Am. Ed.), 1583; Puterbaugh, Ch. Pr. (3d Ed.), 320; Shipman, Eq. PI., 406. 119 3 Enc. PI. and Pr., 594; Webb V. Pell, 3 Paige Ch. (N". Y.) 368, 3 Law. Ed. 191. "A demurrer is a proper and sure defense to a bill of review for error apparent, for that amounts to an assertion that there is no error in the decree; but if there be any matter beyond the decree available as a defense to the bill of review, that matter should be pleaded. Enochs v. Harrelson, 57 Miss. 468. See Turner v. Berry, 8 III. 541; Hartwell v. Townsend, 2 Bro. P. C. 107. On a bill of re- view alleging that the decree was not enrolled, it will not do for the defendant to demur and insist in his pleading that the decree was enrolled. He would thus make it a speaking demurrer. The party should plead the decree as enrolled, and demur against opening it. Nor should he therein allege a want of affidavit, which is mat%r for a mo- tion." Note to Webb v. PeU, 3 Law. Ed. at pp. 191, 192. 331 Bills op Review § 241 allowed by law; (3) or that the bill does not conform to the established practice of the eourt.*^" If the demurrer is sustained, the original decree is thereby aifirmed and the bill of review will be dismissed ; '" but if the demurrer is overruled, the decree may be reversed or modified without any further answer or hearing.^^^ § 241. Defenses to a bill for newly-discovered matter. A bill of review filed on the ground of newly-discovered evi- dence is seldom open to a demurrer, for inasmuch as it can only be exhibited by leave of the court, the ground of the bill is generally well considered before it is filed.^^' But if such a bill should be allowed to be filed and it should appear that the alleged new facts were immaterial or irrelevant, a demurrer would lie to the bill.^^* If the demurrer is overruled, the defendant may then answer the bill ; ^^^ but if the demurrer is sustained, the bill will be dismissed, and another bill can not be brought on the same ground.^^^ The answer of the defendant to a bill of review for new mat- ter may controvert all the facts relating in any manner to the alleged new matter, and the cause will then proceed as if upon 120 Shipman, Eq. PI., 406, 407. versal as to one joint cotenp.nt oper- 121 Webb V. Pell, 3 Paige Ch. (N". ates as a reversal as to all. John- Y.) 368, 3 Law. Ed. 191; Puter- son v. Ludwiek, 58 W. Va. 464, 52 barugh, Ch. Pr. (3d Ed.), 323. S. E. 489. i22Goolsby V. St. John, 25 Gratt. 123 Puterbaugh, Ch. Pr. (3d Ed.), (Va.) 163; 2 Dan., Ch. Pr. (4th 321; 2 Beach, Mod. Eq. Pr., §877; Am. Ed.) 1583; Harrison v. Har- 2 Dan., Ch. Pr. (4th Am. Ed.), 1583. man, 80 W. Va. 68, 92 S. E. 460. la^Lorentz v. Lorentz, 32 W. Va. The erroneous degree may be wholly 556, 9 S. E. 886; Puterbaugh, Oh. reversed and a correct one entered. Pr. 321; 2 Beach, Mod. Eq. Pr., Kanawha Oil Co. v. Wenner, 71 W. § 877; Nichols v. Nichols, 8 W. Va. Va. 477, 76 S. E. 893. The new de- 174; 3 Enc. PI. and Pr., 596. eree need not ^e styled after the 125 Cook v. Bamfield, 3 Swahst. original suit. Idem. The proceed- 607. ing is similar to that on aji appeal. '26 2 Dan., Ch. Pr. (6th Am. Mclwaine, Knight & Co. v. Fielder, Ed.), 1583; 2 Beach, Mod. Eq. Pr., 76 W. Va. Ill, 85 S. E. 548. Ee- § 877. § 243 Equity Peoceduee 332 an original bill ; ^"^ and such a bill is liable to any plea which would have avoided the eiifect of such matter if stated in an original bill.^^* When the new matter has been denied by answer, it must, of course, be proved or the bill will be dis- missed at the hearing.^^' § 242. Bill in the nature of a bill of review. In Hyman v. Smith,^'" it is said that the only difference there appears to be "between a bill of review and a bill in the nature of a bill of review consists in the interlocutory or final character of the decree. "Where the decree is final, a bill of review is proper, and where the decree is interlocutory, a bill in the nature of a bill of review and petition for a rehear- ing is proper." An original bill in the nature of a bill of review lies to review a final decree for fraud or mistake in its rendition or entry.^^^ § 243. Supplemental bill in the nature of a bill of review. As we have already seen/'^ a bill of review proper will lie only to a final decree; while a supplemental bill in the nature of a bill of review will lie to an interlocutory decree,^'^ and, in addition to seeking a review of such decree introduces new matter of fact discovered after the rendition of the decree.^'* 127 Puterbaugh, Ch. Pr. (3d Ed.), Gratt. (Va.) 526; Wiser v. Blachly, 323. 2 Johns. Ch. (N. Y.) 488, 1 Law. 128 2 Beach, Mod. Eq. Pr., § 877. Ed. 460 and note p. 461. 129 Barnett v. Smith, 5 Call 13*3 Enc. PI. and Pr., 507; note (Va.) 98. cited above in 1 Law. Ed., N. Y. Ch., 130 10 W. Va., at p. 313. at p. 461. 131 Law V. Law, 5.5 W. Va. 4, 46 The distinction between a supple- S. E. 697, and cases cited. See Kel- mental bill in the nature of a bill of ley V. Thompson, 106 S. E. 230 (W. review and a bill in the nature of Va. 1921), recognizing such a bill bill of review is that the former al- as an original bill. "A bill to set ways seeks to introduce new matter aside a decree for fraud must state into the cause by way of supple- the decree, and the proceedings ment, while the latter does not. But which led to it, with the circum- since both classes of bills lie for stances of fraud on which it is im- newly-discovered facts, though these peached." Idem. facts are only evidentiary in the cane 132 Ante, §5 226, 227. of a bill in "the nature of a bill of 133 Hyman v. Smith, 10 W. Va. review, much confusion and miscon- 313; Laidley v. Merrifield, 7 Leigh ception have attached to discussions (Va.) 353; Claytor v. Anthony, 15 of the two different classes in the 333 Bills of Review § 243 "Where there is no defect to be supplied the new investigation of the decree must be, or at least usually is, brought on by a petition for a rehearing,i^^ and the true office of the bill is to bring new matter before the court. "^^^ A bill of the kind under consideration may be filed to review a final decree rendered on the verdict of a jury found on an issue devisavit vel non, where the party seeking to file it was not a party to the original suit in which the issue was di- rected.^''' Causes of this sort would seem to constitute an exception to the general rule governing in bills of this char- acter. In Virginia and West Virginia it is unusual to file a bill in the nature of a bill of review or a supplemental bill in the nature of a bill of review to correct an interlocutory decree, as generally used for such purpose under the practice in the English court of chancery; but instead of such a bill it is the practice to file a petition for a rehearing."' decisions. See oases cited supra, is' Connolly v. Connolly, 32 note 133. See Fletcher, Eq. PI. & Gratt. (Va.) 657, 667, 668; Single- Prac, §§961, 974. ton v. Singleton, 8 B. Mon. (Ky.) 135 Post, §§246, 247. 340, 345; Dower v. Churoh, 21 W. 188 3 Enc. PI. and Pr., 598, citing Va., at p. 49. Story, Eq. PI., § 421. iss Manion v. Fahy, 11 W. Va 482, 493, 494. CHAPTER XIII PETITIONS § 244. Definition of petition and the different kinds thereof. § 245. Petition as to new parties. § 246. Petition for rehearing. § 247. The requisites of a petition for a rehearing. § 248. What is an interlocutory decree. § 249. Parties to a petition for a rehearing. § 250. Defenses to petitions for rehearings. §251. The procedure on the hearing of the petition. § 252. Petition to obtain further relief under a final decree. § 253. Petitions by virtue of statute Sale of property of persons nnder disability. § 254. Claims against the state disallowed by the auditor. §255. Petition disputing the validity of an attachment. §256. Who may file petition to dispute validity of attachment. § 257. Time when petition to dispute validity of attacliment must be filed. § 258. Issues and procedure upon filing petition to dispute the validity of an attachment. § 259. Petition for a rehearing under tlie statute after entry of decree. § 260. Time within which petition for a rehearing under tlie statute may be filed. § 261. Form and requisites of a petition for a. rehearing under the statute. § 262. Procedure on a, petition for a rehearing under the statute. § 263. Decree on a petition for a rehearing under the statute. § 204. Petition to transfer estate of minor or insane person into another state or country. § 265. Petition to remove proceeds of sale of real estate of infant, insane person or cestui que trust. § 266. Procedure to remove property of minor or insane person or proceeds of sale of real estate. § 267. Petition to remove personal trust funds or assets of the estate of a decedent. § 268. Procedure to remove personal trust funds or assets of the estate of a decedent. § 269. Petition for the sale of the property of any church, benevolent or educational association or institution. § 270. Proceedings upon a petition for tlie sale of the property of any church, benevolent or educational a.ssociation. §271. When the court may order a .•^ale of the property of any cliurch, benevolent or educational association or institution. 334 335 Petitions § 245 § 244. Definition of petition and the diflFerent kinds thereof. A petition is a written application addressed to the court, setting up some matter of fact or ground of complaint as to which the petitioner prays the court to make some order or give some direction or relief.^ In many jurisdictions, and especially in Virginia and West Virginia, petitions may be thus classified: (a) petitions for the introduction of new parties into the cause ; ^ (b) to obtain a rehearing of an interlocutory decree,' or a final decree entered at the same term of court at which the petition is filed ; ^ (c) to obtain some further relief under a final decree where the right to make application in that manner is secured to the party by the terms of the decree ; ^ (d) to obtain some statutory relief." In addition to the pro- ceeding by petition, it is said that error in an interlocutory decree may, at least in some instances, be corrected on motion.' § 245. Petition as to new parties. A petition making new parties to a pending cause can be filed only by leave of court,* and the mere filing of the petition, 11 Beach, Mod. Eq. Pr., §.564; Sands v. Lynham, 27 Gratt. (Va.) 2 Dan., Ch. Pr. (4tli Am. Ed.), 291, 30.3; Purdie v. Jones, 32 Gratt. 1603; Black, Law Die, 896. (Va.) 827; Fultz v. Brightwell, 77 2 Jackson v. Hull, 21 W. Va. 601; Va. 742; Sims v. Sims, 94 Va. 580, Bank v. Wilson, 29 W. Va. 645, 2 27 S. E. 436. S. E. 768; Fowler v. Lewis, 36 W. ■! Carper v. Hawkins, 8 W. Va. Va. 112, 14 S. E. 447; Cleavenger 291; Hodges v. Davis, 4 II. and M. V. Felton, 46 W. Va. 249, 33 S. E. (Va.) 400. 117; Ewing V. Ferguson, 33 Gratt. s Phillips v. Phillips, 24 W. Va. (Va.) 548; Piedmont L. I. Co. v. 591. Maury, 75 Va. 508; Ilurn v. « W. Va. Code, 191,3, e. 37, §§ I, Keller, 79 Va. 41 S; James Kivcr and 2; idem, i-. S3, §§12-18; idem, c. Kanawha Co. V. Littlejohn, 18 Gratt. 106, §§23, 25, 20; idem, c. 84, (Va.) 53. §§3-9; Va. Code, 1904, §§2629, sGrinnan v. Edwards, 5 W. Va. 2630, 2632; idem., §§2986, 2987; 111; Lynch v. Hoffman, 7 W. Va. idem, §3233; idem, §2015. 578; Smith v. McLa.in, 11 W. Va. 7 Banks v. Anderson, 2 H. and M. 654; Eawlings v. Rawlings, 75 Va. (Va.) 20; Fowler v. Lewis, 36 W. 76; Banks v. Anderson, 2 H. and Va. 112. 129-130, 14 S. E. 447. M. (Va.) 20; Laidley V. Merrifield, s Walter v. Chichester, 84 Va. 7 Leigh. (Va.) 346; Ambrouse v. 723, 6 S. E. 1 ; Piedmont L. I. Co. Keller, 22 Gratt. (Va.) 769, 773; v. Maury, 75 Va. 508; Fowler v. §245 Equity Procedure 336 though by leave of court, does not make the petitioner a party to the suit.' Upon the filing of such petition the bill must be so amended as to contain some allegations against the party filing it, or in regard to him, so that the court may render a decree against him, if necessary or proper to do so;^° unless the petitioner sets up a claim to the subject matter in contro- versy and makes all the parties to the suit parties to the peti- tion, under which circumstances it will be treated as an origi- Lewia, 36 W. Va. 112, 14 S. E. 447; Freeman v. Egnor, 72 W. Va. 830, 79 S. E. 824. A petition filed by a stranger to a cause, asking relief against a de- fendant therein on new matter con- tained in such petition, must be filed by leave of court, must make such defendant a party to it, and process to answer it must be served on such defendant, unless' waived by appear- ance or otherwise. Fowler v. Lewis, 36 W. Va. 112, 14 R. E. 447. 9Shinn v. Board of Education, 39 W. Va. 497, 20 S. E. 604. "Petitions filed in it [a suit] are mere dependencies and fall with the suit. I may remark that petitions were filed setting up other debts, and from the partial record we can not say whether process was issued on them to give defendants a chance to answer them as was necessary. Fow- ler V. Lewis' Admr., 36 W. Va. 114 (14 S. E. 447) ; Morgan v. Morgan, 42 W. Va. 542 (26 S. E. 294). And it seems the mere petition and order to make them parties would not do without amendment of bill. Shinn V. Board, 39 W. Va. 497 (20 S. E. 604). They were ordered to be made parties, but no amended bill was filed, and the original bill did not mention their interests. I see, however, that a, rent lien to Jackson was decreed agaiinst the property. without petition, or its being pre- sented to or reported by commis- sioner under the reference to him to report all liens on the personalty, and Jaek'son not a party; not a shoAV for an opportunity for defend- ants to contest it either in court or before the commissioner; not a word in any pleading or report, or any- where in the record, as to this debt, save in the decree. This was not proper. Smith v. Lowther, 35 W. Va. 300, 13 S. E. 999; Roberts v. Coleman, 37 W. Va. 143 (16 S. E. 482 ) . Liens can be presented to a commissioner ascertaining liens on lands; but as to personalty, under ordinary chancery practice, I do not say." In the opinion of Brannon, J., in Sommers v. Allen, 44 W. Va. 120, 28 S. E. 7S7. Also see Gall v. Gall, 50 W. Va. 523, 40 S. E. 380; Ealph- snyder v. Titus, 63 W. Va. 469, 60 S. E. 494 ; Freeman v. Egnor, 72 W. Va. 830, 79 S. E. 824, and cases cited. loShinn v. Board of Education, 39 W. Va. 497, 20 S. E. 604; Cleav- enger v. Felton, 46 W. Va. 249, 33 S. E. 117; Gall v. Gall, 50 W. Va. 523, 40 S. E. 380; Ealphsnyder v. Titus, 63 W. Va. 469, 60 S. E. 494; Freeman v. Egnor, 72 W. Va. 830, 79 S. E. 824; Bland v. Davisson, 77 W. Va. 557, 88 S. E. 1021. 337 Petitions §245 nal bill and no amendment of the bill already filed will be necessary.^^ And, since the petition must make all persons de- fendants against whom any relief . is sought or who may be affected by it/^ process to answer it must be served on such defendants," unless waived by appearance or otherwise,** or unless the petition is filed in a creditors' suit seeking to enforce a lien or liens, and an order to convene the lien-holders has been entered, and the object of the petition is simply to present the liens to the commissioner.*^ A party may file his petition to be made a coplaintiff as well as a codefendant,** as his interests may appear,*' and the bill, exhibits, answers, depositions, orders and decrees, and all the 1t Cleavenger v. Felton. 46 W. Va. 249, 33 S. E. 117; Skaggs v. Mann, 46 W. Va. 209, 33 S. E. 110. 12 Fowler v. Lewis, 36 W. Va. 112, 14 S. E. 447; Daily v. Warren, SO Va. 512; Morgan v. Morgan, 42 W. Va. 542, 26 S. E. 294; Freeman v. Egnor, 72 W. Va. 830, 79 S. E. 824. 13 See same citations. Where a party is not made a de- fendant in a suit in equity, and files a paper in the case, which he terms an "answer and petition," in which he prays for affirmative relief, and sets up affirmative matter, hut upon ■which no process issues, he can thereby obtain no affirmative relief against a defeitdant in such suit. Woods V. Douglass, 46 W. Va. 657, 33 S. E. 771. But service of process is not necessary upon a mere peti- tion of course. Fletcher, Eq. PI. & Prac, § 425 ; 1 Bart., Ch. Pr. ( 2nd . Ed.), 365; Fowler v. Lewis, 36 W. Va. 112, 137, 14 S. E. 447. Also see, Heermans v. Montague, 2 Va. Dec. 6, 20 S. E. 899. 34 Fowler v. Lewis, 36 W. Va. 112, 14 S. B. 447; Morgan v. Morgan, 42 W. Va. 542, 26 S. B. 294; Freeman V. Egnor, 72 W. Va. 830, 79 S. E. 824. "Where a party files his petition in the nature of an original bill in a chancery suit, praying to be made a party plaintiff, and that the de- fendants to the suit, being named in the petition, be made defendants thereto, and such defendants appear to said petition and demur, and demurrer is overruled, and on the record waive their right to answer or further plead thereto, it is not error to proceed upon said petition in the cause without process issued thereon; the waiver of right to an- swer or further plead being, in el- fect, a waiver of process." Root- Tea-Na-Herb Co. v. Eightmire, 48 W. Va. 229, 36 S. E. 359-360. loDunfee v. Childa, 45 W. Va. 155, 30 S. E. 102. If Ewing V. Ferguson, 33 Gratt. (Va.) 548; Crumlish v. Railroad Co., 40 W. Va. 627, 22 S. E. 90; Jackson v. Hull, 21 W. Va. 601; Richardson v. Ralphsnyder, 40 W. Va. 15, 20 S. E. 854. 17 Ewing V. Ferguson, 33 Gratt. (Va.) 548; Richardson v. Ralph- snyder, 40 W. Va. 15, 20 S. E. 854 § 246 Equity Proceduke 338 proceedings in the cause, may, upon proper prayer, be read as part of his petition." Where a petition, sought to be filed in a pending suit, sets forth such an interest in the subject matter thereof as to make the petitioner a proper party to the suit, and he seeks by such petition to be made a party to it, it is the court's duty to entertain the petition and have him made a party to the suit ; *' but if the petition discloses no equitable ground for relief on the part of the petitioner, it should not be filed and, if filed under such circumstances, it ought to be dismissed.^" When a pierson comes into a pending cause by petition, and has a right to file such petition, he may have prior erroneous orders entered in the cause reheard and corrected, upon prayer for that purpose in his petition, whether the case be proper for a petition for rehearing or bill of review as to a person already a party to the eause.^^ Every petition, for whatever purpose presented, should be signed by the party presenting it ; ^^ but it need not be signed by counsel unless it be a petition for a reheariag.^^ § 246. Petition for rehearing. A court will not permit a petition for a rehearing to be filed unless it contains all the averments necessary in a proceeding of that character,^* and unless it appears from such petition that the relief which it seeks is peculiar to a court of equity; ^^ "nor will it lie to relieve from an error or irregularity which 18 Richardson v. Ralphsnyder, 40 2S S. E. 780; Beard v. Arbuckle, W. Va. 15, 20 S. E. 854. 19 W. Va. 135. 18 Bank v. Wilson, 29 W. Va. 645, 21 Crumlish v. Railroad Co., 40 2 S. E. 7GS; Parker v. State, 132 W. Va. 627, 22 S. E. 90. Ind. 419, 31 N. E. 1114; Earner v. 22 Hathaway v. Scott, 11 Paige Eayless, 134 Ind. 600, 33 N'. E. Ch. (N. Y.) 173, 5 Law. Ed. 96. 907; Dudley v. Niswander, 65 W. ^^ Idem. Va. 461, 466, 64 S. E. 745; Cassady 2< Hunter v. Kennedy, 20 W. Va. V. Cassady, 74 W. Va. 53, 54, 81 S. 343; Craufurd v. Smith, 93 Va. 623, E. 829. 23 S. E. 225. 20 Cox V. Horner, 43 W. Va. 786, 2r> Hunter v. Kennedy, 20 W. Va. 343. 339 Petitions § 246 could have teen reached by exception or motion during the progress of the cause ;^' nor will a petition for a rehearing because of new matter be allowed to be filed unless it sets forth all the facts necessary to maintain a bill of review on such ground ; ^^ nor will a petition for a rehearing lie where there has been long and unreasonable delay as to the decree sought to be reviewed and acquiescence in it, so that it would not be just and equitable to open the decree ; ^* nor will it lie where an interlocutory decree of a circuit court has been affirmed by the supreme court of appeals,^' and the same rule obtains in Virginia where, on an appeal from an interlocutory decree, the appeal is dismissed for failure to print the record.'* It will lie for errors of law apparent upon the face of an interlocutory decree,'^ and for newly-discovered evidence which is relevant and material, such as would probably have produced a different result had it been used before the decree was rendered and which was not known to the petitioner and could not have been known by the use of due diligence in time to use it before the decree was pronounced.'^ To illustrate an error of law that may be corrected upon petition, a purchaser of real estate devised to infants in remainder and sold under decrees in a summary proceeding, under the statute allowing 28 Bank v. Shirley, 26 W. Va. 29 Woodson v. Leyburn, 83 Va. 563. 843, 3 S. E. 873; Lore v. Hash, 89 27 White V. Drew, 9 W. Va. 695; Va. 277, 15 S. E. 549. Such a decree Hill V. Maury, 21 W. Va. 162; Tre- is res judicata, and can not be das- velyan v. Lofft, 83 Va. 141; Woods turbed. Johnson v. Gould, 62 W. 7. Early, 95 Va. 307, 28 S. E. 374; Va. 599, 59 S. E. 611. Baker v. Watts, 101 Va. 702, 44 S. "•<> Eawlings v. Rawlings, 75 V.i. E. 929; Eason v. Lyons, 114 Va. 76. 390, 76 S. E. 957; Colonna Dry si Hill v. Maury, 21 W. Va. 162; Dock Co. V. Colonna, 108 Va. 230, Hyman, Moses & Co., v. Smith, 10 61 S. E. 770. See § 236, ante. W. Va. 298. 28 Eawlings v. Eawlings, 75 Va. "2 Armstead v. Bailey, 83 Va. 242, 76. But there is no statutory bar, 2 S. E. 38; Carter v. Allan, 21 Gratt. and cases have been reheard 10, 18 (Va.) 241; Whitten v. Saunders, and even 25 years from the date of 75 Va. 563. See eases cited in note tlie decree. Kendrick v. Whitney, 27, supra. 28 Gratt. (Va.) 646; Todd v. Mc- Fall, 96 Va. 754, 32 S. E. 472. § 247 Equity Procedure 340 the sale of infants' lands,'' who, before paying all the purchase money, discovers that the decree of sale and proceedings are, in material respects, not in conformity with the statute, and there- fore so erroneous as to becloud and endanger his title, may file his petition in said proceeding for the purpose of having such error corrected, and his title cleared, and have relief thereon as far as it is in the power of the court to give it.^* § 247. The requisites of a petition for a rehearing. As in other pleadings in equity, the form of a petition for a rehearing is immaterial,'^ as a bill of review will be treated as a petition for a rehearing if the decree be only interlocu- tory.'« But while this is true, such a petition must contain the substantial averments required by the practice of a court of equity in such case.'^ A petition for a rehearing must state by whom it is pre- sented ; '^ the interest of the petitioner,^'' exhibiting with the petition, or describing therein, the bill, exhibits, answer, and decrees made in the cause ; *" the material facts on which the decree to be reviewed is founded;*^ if for newly-discovered evidence, the substance of the evidence alleged to be new ; *^ 33 W. Va. Code, 1913, c. 83. § 12. and containing all the requisites of 3< Amnions v. Ammons, 50 W. Va. a petition for a rehearing, ivas treat- 390, 40 S. E. 490. ed in that case a'^ a petition for re- 36 Eawlings v. Rawlings, 7.5 Va. hearing, and effect given to it as 76. ?nch." 3s7(/em; Heernians v. Montague, '^Hill v. Maiiry. 21 W. Va. 162; 2 Va. Dec. 6. 20 S. E. 899. Heernians v. Montague, 2 Va. Dec. In Adliins v. Edwards. 83 Va. 6, 20 S. E. S99; White v. Saunders, 300,- 2 S. E. at p. 438, the court in 7.5 Va. 563.' its opinion says: "In Kendricic v. s'' Ileermans v. ilontague, 2 Va. Whitney [28 Oratt. (Va.) 6461, the Dec. fi, 20 S. E. 899. court said that the disposition of ^^lihm. courts of equity is to regard sub- *" Hunter v. Kennedy. 20 W. Va. stance rather than mere form, and 343. so to mould the ph'adings as to at- " ?Teermans v. M(vntague, 2 Va. tain the real justice of the ease. Dec. 6, 20 S. E. 899. Acc(U'dingly, a motion founded upon -is Corey v. Moore, S6 Va. 730, 11 a written notice signed liy counsel, S. E. 114. 341 Petitions §247 the relief sought ; ■" and must be supported by the usual affi- davit as to the new matter.''* And when it appears that the affidavit of the witness as to the new matter can readily be had, but, instead of its being taken, the party asking a rehearing merely files his own affidavit that he believes the evidence of such witness is material, a rehearing will not be allowed.''^ And such petition can be filed only by leave of court." In short, a petition for a rehearing must contain all the averments essentially required in a bill of review," whether it be for error apparent or new matter,''^ the only difference between them being that one lies to an interlocutory and the other to a final decree." ■•3 Heermans v. Montague, 2 Va. Dec. 6, 20 S. E. 899. " Corey v. Moore, 86 Va. 730, 11 S. E. 114. For the affi- davit, see ante, § 236, being the same as required to a bill of review. See also, Trevclyan v. Lofft, 83 Va. 141, 1 S. E. 991; Armstead v. Bailey, 83 Va. 242, 2 S. E. 38; New- berry V. Stuart. 86 Va. 965, 11 S. E. 880; Parker v. Clark, 7 W. Va. 467; Diffendal v. Va. M. Ry. Co., 86 Va. 465, 10 S. E. 536. "Although a trial-court may have erred in allowing a petition to re- hear to be filed, because not accom- panied by the necessary affidavits, yet, if the case lias proceeded to a hearing on such petition, and it then appears that the petitioner is en- titled to a rehearing and to the re- lief prayed for, it is error to reftise the rehearing and relief simply be- cause the petition was not properly supported in the first instance." Craufurd v. Smith, 93 Va. 623, 23 S. E. 235. ^5 Hale v. Pack. 10 W. Va. 145. ■'"Heerraans v. Montague, 2 Va. Dec. 6, 20 S. E. 899. ■iT Ante, §236. 4R White V. Saunders, 75 Va. 563; Corey v. Moore, 86 Va. 730, 11 S. E. 114; Akers v. Akers, 83 Va. 633, 3 R. E. 200; Trcvelyan v. LofTt, 83 Va. 141, 1 S. E. 991. See additional cases cited in note 27, supra. *si As to what constitutes an inter- locutory decree, see § 248, post. In Moore v. Hilton, 12 Leigh. (Va.) at p. 25, Tucker, P., concern- ing a petition for rehearing, says: "According to the English practice, a petition for rehearing is an ap- plication to the Chancellor, before a decree lias been signed and enrolled, to rehear a cause, not upon new matter or new evidence, but upon the matter in issue and the evidence in the cause at the former hearing. If there be new matter or new evi- dence in the power of the party, which would have been the founda- tion of a bill of review if the decree had been enrolled, it must be made the subject of a supplemental bill in the nature of a bill of review, and its object can not be attained by a petition to rehear. Mitf. Plead. 82; Wiser v. Blakly, etc., 2 Johns. Ch. Rep. 488. To this supplemental bill, the defendant answers as in §248 Equity Pkoceduee 342 § 248. What is an interlocutory decree. It is laid down as a well-settled rule that when the further action of the court is necessary to give completely the relief contemplated by the court, the decree is to be regarded not as final but as interlocutory ; ^^ and the character of the decree is to be determined by an inspection of the terms of the decree,, and learning from its face what has been done.^^ other cases, traversing, if he so pleases, the alleged discovery of- new matter or new evidence since the former hearing. It were well, I think, that this regiilar proceeding had been adhered to by our courts, yet I have no doubt they have fallen into the practice of entertaining petitions as substitutes for the sup- plemental bill; an instance of which is found in Robert's Admr. v. Cocke, Exr., cited at the bar. It is plain, however, that every such peti- tion must partake of the character of the supplemental bill, and be treated according to its analogy. Therefore as n supplemental bill filed for the purpose of bringing forward new matter or new evi- dence, must sliow that it has been newly discovered, and could not, by due diligence, have been brought for- ward before, Dale v. Roosevelt. 6 Johns. Ch. Rep. 255, so also must a petition for rehearing, which is its Biibstitute. As tbp supplemental bill calls upon the defendant to an- swer, and as h" may accordingly traverse the alleged recent discovery, so in the ease of a petition set- ting forth the discovery of new mat- ter or new evidence, the adversary party may traverse the allegation; and to that end the necessary steps should be taken for calling upon him to answer. Unless this course be adopted, we must discard the proceeding by petition, and adhere to the supplemental bill ; but so long as the substance i& retained, I should incline to think a proceeding by petition, or even by motion or rule, might be without objection, and even preferable for its sim- plicity and expedition." 00 Cocke v. Gilpin, 1 Rob. (Va.) 20, 46; Harvey v. Branson, 1 Leigh (Va.) lOS; Fleming v. Boiling, 8 Gratt. (Va.i 292; Ambrouse v. Kel- ler, 22 Gratt. (Va.) 769; Burch r. Hardwicke. 23 Gratt. (Va.) 51, 56; Smith V. Blackwell, 31 Gratt. (Va.) 300; Ryan v. McLeod, 32 Gratt. (Va.) 377; Summers v. Darne, 31 Gratt. (Va.) SOS; Jameson v. Jame- son, 86 Va. 54, 9 S. E. 480; Camden V. Raymond, 9 W. Va. 680, 687 Hyman v. Smith, 10 W. Va. 298 Manion v. Fahy, 11 W. Va. 493 Butler V. Butler, 8 W. Va. 674 Wood V. Harmison. 41 W. Va. 376, 23 S. E. 560; Smith v. Evans, 42 W. Va. 352. 26 S. E. 347; Laidley V. Kline, 21 W. Va. 21. For a further consideration of interlocu- tory decrees, see post, Decrees, Ch. 26, § 594. See ante, § 227, as to final decrees. '■' Burch V. Hardwicke, 23 Gratt. (Va.) 51. 343 Petitions § 251 § 249. Parties to a petition for a rehearing. A petition for a rehearing can only he filed by a person who is a party or privy to the suit,^^ except that a person not a party to the suit whose interests may be affected may come in by petition to be made a party and then ask a rehearing of a former decree.^' The general rule is that all the parties to the suit, as in cases of bills of review, should be defendants to the petition.^* § 250. Defenses to petitions for rehearings. If a petition for a rehearing is defective in the essential allegations necessary to authorize the relief which it seeks, it is open to a demurrer ; ^^ and its allegations may be controverted by answer ^' or, of course, opposed by plea, as in cases of bills of review.^'' §251. The procedure on the hearing of the petition. The petitioner has the right to open and close the argument upon the hearing of the petition.^^ If the rehearing is granted, the cause is open to the party who petitions for the rehearing only a's to those parts of the decree complained of in the peti- tion ; but as to the other party, the cause is open as to the whole matter.^' If the order is for a rehearing generally and is granted on the entire merits, the whole case is then open to all parties.^" 52 Heermans v. Montague, 2 Va. soHeermans v. Montague, 2 Va. Dec. 6, 20 S. E. 899; Armstead v. Dec. 6, 20 S. E. 899. Bailey, 83 Va. 242, 2 S. E. 38; Gib- " See ante, § 241. son V. Green, 89 Va. 524, 16 S. E. =8 Sills v. Brown, 1 Johns. Ch. (N. 661, 37 Am. St. Rep. 888. Y.) 444, 1 Law. Ed. 203. 63Heennans v. Montague, 2 Va. "s Conspqua v. Fanning, 3 Johns. Dec. 6, 20 S. E. 899. Ch. (N. Y.) .587, 1 Law. Ed. 726 Hi Idem. See authorities cited and note; White v. Carpenter, 2 ante, in note 12. Paige Ch. (N. Y.) 217, 262, 263, 2 55 Armstead v. Bailey, S3 Va. 242, Law. Ed. 882, 899; Ferguson v. Fer- 2 S. E. 38. Objection may be made guson, 2 N. Y. 301; Robinson v. to its being filed for the same rea- Wheeler, 51 N. II. 385. son. See cases cited ante, note 24. «<> 18 Enc. PI. and Pr., 25. § 253 Equity Procedure 344 § 252. Petition to obtain further relief under a final decree. Petitions of the character here Botieed are permitted to be filed for further relief either by statute or under reservations made in the decree itself;*^ so where a decree reserves further directions, a subsequent application to the court for such direc- tions may be made by petition. ^^ But where a petition is filed for the further action of the court under a decree already entered and granting relief in the cause, unless the defendant to the petition appears thereto in court, it should be sent to rules for process to be issued thereon and to be matured for a hearing."' If such petition should be filed and no appearance be made thereto, and no process issued thereon, it would be error upon such petition to enter any new decrees against the petitioner or in his favor."* § 253. Petitions by virtue of statute— Sale of property of per- sons under disability. As a general rule, suits or proceedings in equity must be by bill, and the cases wherein relief may be obtained by petition are confined to the instances in which such a procedure is au- thorized by statute."^ A very important procedure by petition is that whereby the sale, lease or incumbrance of the estate of a miner or other person under disability is effected. The statute provides that the application may be by petition to the circuit court of the county wherein the estate sought to be affected by the proce- dure is situate, describing in the petition all of the estate of the _party under disability, and setting forth plainly all the facts calculated to show the propriety of the sale or other act relating to the estate sought to be aftVcted. The petition shall be verified by the oath of the plaintiff and all persons inter- 61 Phillips V. Phillips, 24 W. Va. «3 Phillips v. Phillips, 24 W. Va. 591. Such a petition must contain 50,1. facts warranting the relief sought. •'■> Idem. Boger V. Boger, 104 S. E. 49 (W. 66 Sayre v. Elyton Land Co., 73 Va 1920). Ala. 85; Bank v. Bank, 34 N. J. 62 16 Enc. PI. and Pr., 506. Eq. 450. 345 Petitions § 255 ested shall be made defendants, and ten days' notice shall be given to such defendants before the petition can be heard.^* § 254. Claims against the state disallowed by the auditor. Application for the auditing and adjustment of a claim against the state, which has been disallowed by the auditor, may be made by petition to the circuit court of the county wherein the' seat of government is.*'' § 255. Petition disputing the validity of an attachment. It is provided by statute that "any person interested may file his petition at any time before the property attached, as the estate of a defendant, is sold under the decree or judgment; or if the proceeds of the sale have not been paid over to the plaintiff, or his assigns, within one year after such sale, disput- ing the validity of the plaintiff's attachident thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon giving security for costs, the court without any other pleading, shall impanel a jury to inquire into such claim, and if it be found that the petitioner has title to, or lien on, or any inter- est in such property or its proceeds, the court shall make such order as is necessary to protect his rights; the costs of which inquiry shall be paid by either party, at the discretion of the court." «« 66 W. Va. C?ode, 1913, c. 83, § 12. " W. Va. Code, 1913, c. 37, §§ 1-3. No such a statute exists in the state No such st;itute exists in Virginia, of Virginia, except as to the re- For the form to be used under this newaJ of leases by persons under statute, see post, § 1046. disability. Code, 1887, e. 117; Va. "s w. Va. Code, 1913, c. 106, §23. Code, 1904, § 2615. For a full con- The same statute exists ia Virginia, sideration of ^is statute, see Hogg, except there is no limit as to the Eq. Pr., §§ 124-126. For the forms time, after the sale of the property, used under this statute, vide post, within which the petition may be i§ 971, 972, 973, 1253, 1254, 1255, filed. Va. Code, 1904, § 2984. 1256, 1258, 1277, 1300. §258 Equity Procedure 346 But under this statute the plaintiff in an ordinary suit in equity, brought to enforce a lien, is not required to file his petition in another suit in which an attachment issued and was levied upon the subject matter of the lien, in order to settle his rights. He need only make the necessary parties defend- ants to his own suit and proceed with the cause.^^ § 256. Who may file petition to dispute validity of attachment. A mere general creditor of the attachment debtor is not a person interested within the meaning of the statute so as to file a petition to dispute the validity of an attachment.'" A party must show a legal or equitable claim to the property in order to file such a petition.'^ Thus a subsequent attaching creditor may file such a petition ; '^ or any person holding a lien of any kind on the attached property;" or a purchaser of the prop- erty.'" § 257. Time when petition to dispute validity of attachment must be filed. There is no limit fixed in Virginia for the filing of a petition to dispute the validity of an attachment ; nor in West Virginia, until after the sale of the property attached, when the petition must be filed within one year thereafter.'^ §258. Issues and procedure upon filing petition to dispute the validity of an attachment. A party who has filed his petition in an attachment suit to dispute the validity of an attachment may move the court to 8« Hatch V. Calvert, 15 W. Va. Co-operative Assn., 48 W. Va. 232, 90. 37 S. E. 645. ToCrim v. Harmon, 38 W. Va. ''2 Lud ington v. Hull, 4 W. Va. 596, 18 S. E. 753; Miller v. White, 130; JlcCluny v. Jackson, 6 Gratt. 46 W. Va. 67, 33 S. E. 332; Yellow (Va.) 96. Pine Lumber Co. v. Mays, 81 W. Va. " First Nat. Bank v. Harkness, 46, 50, 94 S. E. 42. 42 W. Va. 156, 24 S. E. 548. 71 Chapman v. Railroad Co., 26 74 Anderson v. Johnson, 32 Gratt. VV. Va. 324. And the petition itself (Va.) 558. See post, §824. must disclose a sufficient interest in 76 w. Va. Code, 1913, c. 106, § 23; petitioner. Smith v. Parkersburg, Va. Code, 1904, § 2984. 347 Petitions § 259 quash the affidavit and attachment ; '' or if such interested party desire to controvert the facts, or any of them, stated in the affidavit, material to the issue, he may do so and have an issue formulated for the purpose and tried by a jury.'' But "when there has been, in a foreign attachment suit in equity, an ascertainment of the amount of the indebtedness due from the defendant to the plaintiff, and the debtor appeals from the decree so ascertaining the amount, which is affirmed, and the court below is proceeding t6 execute the decree by selling the attached property, it is too late for a claimant of the property to dispute the debt. ' ' '* As a condition precedent to the right thus to make defense to the attachment, the intervener must give security for costs, as hereinafter seen.'' "When, under the provisions of section 23 of chapter 106 of the Code, a petition is filed in a suit in equity founded upon an attachment, setting up title by purchase, and the plaintiff in the cause relied upon fraud in the alleged purchase to defeat the claim of title so set up, the trial of the issue must be upon the petition without any other pleading, and by jury, unless trial by jury is waived."'" In Virginia, as hereafter shown,*' defenses to the attach- ment dehors the record are not raised by plea, but by motion, so that the intervener in that state would make such defense in the same manner. § 259. Petition for a rehearing under the statute after entry of decree. In any suit in which an attachment has been sued out and levied and decree has been rendered in such suit upon an order ^e Capehart v. Dowery, 10 W. Viu ■» Post, § 824; Ludington v. Hull, 130. 4 W. Va. 130, "Capehart v. Dowery, 10 W. Va. s" Lipscomb v. Condon, 56 W. Va. 130; Miller v. White, 46 W. Va. 67, 416, 40 S. E. 302, 67 L. R. A. 670. 33 S. E. 332, 76 Am. St. Eep. 791. si post, § 812. 78 Chapman v. Railroad Co., 26 W. Va. 324. [13] § 259 Equity Peoceduee 348 of publication, the defendant therein or his personal representa- tive may file his petition to have such decree reheard; but no such petition can be filed in any case in which the petitioner or his decedent was served with a copy of the attachment, or with process in the suit wherein it was issued, more than sixty days before the date of the decree, or in a case wherein there was an appearance and defense.*^ The service of the attach- ment or process must be made in the suit and in the state, else the party has the right to file the petition.^' Under this statute a party has a right to file a petition to rehear a decree rendered on amended bill to which he made no appearance, though he did appear and answer the original bill.** The only remedy which a nonresident defendant has to review a decree rendered against him on publication, when he has not appeared in the case, is by petition for a rehearing.*' And it is provided by statute in the Virginias that a rehear- ing may be had in any case by any unknown party or other defendant, who was not served with process in the state, and did not appear in the case before the date of the decree or order; and that such rehearing may be had within the time provided in the next succeeding section.*' Under this statute the party is permitted to make defense and with the same effect as if made before the rendition of the decree complained of.*' 82 W. Va. Code, 1913, c 106, § 25; Va. Code, 1904, § 3233. The right Va. Code, 1904, § 2986. The right to tlie reliearing is absolute. Hence to the rehearing is absolute. Grant- the petition need not allege nor ten- ing the rehearing is a ministerial der for filing any proposed defense. act. People's Bank v. Burdett, 69 People's Bank v. Burdett, 69 W. Va, W. Va. 369, 71 S. E. 399; Hayman 369, 71 S. E. 399. Under this sec- V. Monongahela Consol. Coal & Coke tjo^ t^e petitioner need not return Co., 81 W. Va. 144, 94 S. E. 36. , ' ^ „t + ^ i i 83 Anderson v. Johnson, 32 Gratt. ^° ^^^ «'^t« ^""^ ^PP'^^'" °P'^°ly' «'" (Va.) 558; Smith v. Chilton, 77 Va. though it is otherwise in rehearing 535. an attachment suit. Johnson v. 84 Conrad v. Buck, 21 W. Va. 396. Ludwick, 58 W. Va. 464 52 S. E. 85 Meadows v. Justice, 6 W. Va. ... 198 ; Vance v. Snyder, 6 W. Va. at ^°^- p. 32; Handy v. Scott, 26 W. Va. 87 Cralle v. Cralle, 79 Va. at p. 710. 185; People's Bank v. Burdett, 69 86 W. Va. Code, 1913, c. 124, § 14; yy ya. 369, 371, 71 S. E. 399 349 Petitions § 260 To have a decree reheard which has been rendered by default upon an order of publication, security must be given as pre-- scribed by statute,*^ unless waived by the act of the parties. And an appearance by the defendant and filing his petition or an answer equivalent in its substantial allegation to such peti- tion, and the matter being heard thereon without such security, no objections being offered because no security has been given, will constitute a waiver of this requirement of the statute.*' The form of the petition is not material if it contain the requi- site allegations entitling the party to have the decree reheard.'" § 260. Time within which petition for a rehearing under the statute may be filed. If, in an attachment suit, a party or his personal representa- tive return to or appear openly in the state, and, at the instance of the plaintiff in the suit, be served with a copy of the decree rendered therein, he may, at any time, within one year there- after, file his petition for a rehearing of such decree, and if he be not 80 served therewith, such petition may be filed at any time within two years after the rendition of such decree." It is further provided by statute, as to all suits other than attachment suits, that the defendant or his representative may, within two years from the date of the decree, if he be not served with a copy of the decree more than one year before the end of said two years, and if he be so served, then within one year from the time of such service, file his petition to have the proceedings reheard in the manner and form provided by section 25 of chapter 106 of the Code, and not otherwise; and all the provi- 88 W. Va. Code, 1913, c. 106, § 25; so Haymond v. Camden, 22 W. Va. Va. Code, 1904, §2986; Martin v, 180. Stnith, 25 W. Va. 579. The bond s" Haymond v. Camden, 22 W. Va. for costs need not be filed with the 180; Martin v. Smith, 25 W. Va. petition, but may be filed later be- 579. fore tlie petitioner is "admitted to si VV. Va. Code, 1913, c. 106, § 25. make defense." People's Banlc v. In Virginia the periods are one and Burdett, 69 W. Va, 369, 71 S. E. five years, respectively. Va. Code, 399. 1904, §2986. § 262 Equity Procedure 350 sions of the latter section are made applicable to the present section.'" § 261. Form and requisites of a petition for a rehearing under the statute. No particular form of the petition for a rehearing of a decree rendered on publication against a defendant in an attachment suit is prescribed, and hence the form thereof is largely a mat- ter of indifference, as a bill of review,'' or an answer '* will be treated as sufficient to authorize a rehearing without filing a formal petition.'^ It is sufficient to set out in the petition the decree, that it was rendered on publication; that the petitioner was not served with a copy of the attachment, or any process issued in said suit, sixty days prior to the rendering thereof against him; that defendant (petitioner) did not appear and make defense in the suit ; that the defendant has a just or valid defense to the suit (which may be stated, though this is not necessary), and contain a prayer that such decree may be re- opened and reheard, and that the petitioner be allowed to make such defense as he may be advised is lawful and proper.'^ § 262. Procedure on a petition for a rehearing under the statute. The statute provides that on filing the petition and giving security for the costs which have accrued and which shall there- after accrue the defendant (petitioner) shall be admitted to make -defense against the decree, as if he had appeared in the case before the same was rendered, except that the title of any 92 W. Va. Code, ini3. c. 124, § 14. os Martin v. Smith, 25 W. Va. In Virginia the time periods are one 579. and three years, respectively. Va. »■' Haymond v. Oamden, 22 W. Code, 1004, § 3233. Note tliat un- Va. 180. der the latter statute the defendant sisSee authorities under the last does not need to a,ppear personally two citations. within the state in order to assert 96 Staith v. Life Association, 76 his defense. Johnson v. Ludwick, Va. 380; iPeopIe'a Ba>nk v. Burdett,' 58 W. Va. 464, 52 S. E. 489. 69 W. Va. 369, 71 S. E. 399. 351 Petitions § 264 boTia fide purchaser of property sold under the decree shall not be questioned or impeached.'' When the proper petition has been filed and the necessary security given, the court will order the cause to be reinstated on the docket, if it has been left off, but will not then set the decree aside. The petitioner will be admitted to answer the bill, opportunity to take proof by the parties will be given, the cause will be matured for a rehearing, and on such rehearing, such decree will be made as may be just and right.'* Of course, if the party so desires, he may demur to the bill, and if the demurrer is sustained, it is conceived that the plaintiff would be allowed to amend without disturbing the decree, if the defect could be relieved by amendment, otherwise the decree would be set aside and the bill dismissed. § 263. Decree on a petition for a rehearing under the statute. On any rehearing under the statute, it is provided by such statute that if the decree be for the defendant, the court may order the plaintiff in the original suit, or his personal repre- sentative, to restore any money paid him under the decree therein, with interest from the date of such order, to the de- fendant, or his representative, entitled thereto, and may enter a decree against him therefor ; and if the defendant or his per- sonal representative fail to recover on such rehearing, the origi- nal decree shall be confirmed; and in either case the costs shall be adjudged to the prevailing party.'' § 264. Petition to transfer estate of minor or insane person into another state or country. It is provided by statute that "when any minor or insane per- son, entitled to property or money in this state, resides out of »tW. Va. Code, 1913, c. 106, §25; (Va.) 507; Ppoplc'a Bank v. Bur- Va. Code, 1904, § 2986. See Peo- dett, 69 W. Va. 369, 71 S. E. 399. pie's Bank v. Burdett, 69 W. Va. so w. Va. Code, 1913, c. 106, § 26. 369, 71 S. E» 399. Substantially the same statute ex- »e Piatt V. Howland, 10 Leig-h ists in Virginia. Va. Code, 1904, § 2987. § 264 Equity Procedure 352 it, on the petition of a guardian or committee, lawfully ap- pointed or qualified in the state or country of his residence, the circuit court of the county in which the estate may be, may order the guardian or committee in this state, if there be one, to pay and deliver to such foreign guardian or committee, or his agent or attorney, all personal property and money in his hands belonging to said ward or insane person, and authorize such foreign guardian or committee to sue for, recover and receive all money or personal property which may belong to his ward or insane person, including the accruing rents of his real estate, in like manner as if he were appointed a guardian or committee of such ward or insane person in this state, and remove the same to the state or country in which the said for- eign guardian or committee was appointed and qualified."^"'' It is said that a court of general chancery jurisdiction may direct funds in the hands of a domestic guardian to be paid over or transmitted to a foreign guardian ; ^"^ but in the Vir- ginias the mode provided by statute must be pursued — that is, the proceeding must be by petition to the circuit court on its chancery side.^"^ This statutory proceeding is an informal, non- technical proceeding; and the sufficiency of the petition is de- 100 w. Va. Oode, 1913, c. 84, §3. the assets of the ward's estate, A like statute exists in the state when in its judgment and in the of Virginia. Va. Code, 1904, § 2629. exercise of a sound discretion it 101 ^x pa/rte Smith, 1 Hill Ch. deems such action for the best in- (S. C. ) 140; Ex parte Heard, 2 terest of the ward. Marts v. Brovm, idem, ,54; Ex parte Baker Andrews, 56 Ind. 3S6, citing the principal 3 Humph. (Tenn.) 592; Earl v. case; Leonard v. Putnam, 51 N. H. Dresser, 30 Ind. 11, 95 Am. Dec. 247; S. C, 12 Am. Eep. 106. In 660. doing this, however, it is the duty In a note to Earl v. Dresser, su- of the court to exact a bond for the pra, 95 Am. Dec. at p. 668, we find safety of the fund, unless it is the following: "Even without any satisfied thai the general guardian express statutory provision on the in the foreign .state and his sureties fiubject, it has been held that a would bo responsible therefor in court of chancery has power to such other state. Andrews' Heirs, make an order or decree requiring 3 Humph. 592." the guardian of a non-resident ward ms Snavfly v. HSrkradcr, 30 to pay over to the foreign guardian Gratt. (Va.) 487. 853 Petitions § 2G5 termined by its substance, not its form ; ^"^ nor does it require verification by affidavit.^"* Tlie question of the transmission of the estate in cases of the kind under consideration is addressed to the sound discretion of the court ; and if it should appear that any principle of pub- lic policy would be violated, or that the legal rights of any citizen of the state where the property is situated or the inter- ests of the ward would be injured or impaired by the removal of the same, it would be right to refuse to permit it to be removed. ^"^ §265. Petition to remove proceeds of sale of real esta,te of infant, insane person or cestui que trust. It is also provided by statute that "when the proceeds of sale of real estate of an infant, insane person or cestui que trust, under the laws now in force, are invested, or required to be invested, under the direction of a court, and such infant, insane person or cestui que trust resides out of this state, on the petition of a guardian, committee or trustee, lawfully ap- pointed or qualified in the state or country of the residence of such infant, insane person or cestui que trust, the court under whose directions such proceeds are invested, or required to be invested, may, with the consent of the persons residing in this state who would be the heirs of such infant, insane person or cestui que trust, if he were dead, order the said proceeds to be paid and delivered to such foreign guardian, committee or trustee, or his agent or attorney, and removed by him to the state or country in which he was appointed and qualified.""^ But if in the judgment of the court the removal of the trust 103 Fidelity Trust Co. v. Davis the latter case, inter alia, is that Trust Co., 74 W. Va. 763, S3 S. E. the court must determine aflfirma- 59. tively that the removal will not 10* Central Trust Co. v. Hearne, prejudice the interests of the ward, 78 W. Va. 6, 88 S. E. 4.50. but need not so determine that such 1"'' Earl V. Dresser, 30 Tnd. 11, 9.5 removal will be beneficial. Am. Dec. 060; Fidelity Trust Co. v. io6 W. Va. Code, 1913, c. 84, §4. Davis Trust Co,, 74 W. Va. 763, 83 The same statute is in force in Vir- S. E. 59, The rule announced in ginia. Va. Code, 1904, § 2630. § 266 Equity Peoceduee 354 subject will defeat or conflict with the provisions of the deed, will or other instrument creating the trust, the court may refuse to grant the prayer of the petition."' § 266. Procedure to remove property of minor or insane per- son or proceeds of sale of real estate. The application must be made by petition, as prescribed by statute, and not by bill in equity."* Notice of the application must be published for four successive weeks in some news- paper."^ But no order authorizing the transfer of funds by a foreign guardian or committee will be made until it is shown by authentic documentary evidence that such guardian or com- mittee has given bond, when he qualified, with surety sufficient to insure his accountability for the whole amount of the ward's or insane person's estate in his hands, or which will probably be received by him as such guardian or committee.-'" And the court must be satisfied that the removal of the money or prop- erty from the state will not impair the rights or be prejudicial to the interests of the ward or insane person or any other per- son ; but is not bound to ascertain that the transfer will be bene- ficial to the interests of the ward or insane person."' ^0'' Idem. In Clendening v. Conrad, 91 Va. 108 Snavely v. Harkrader, 29 4)0, 21 S. E. 818, a decree was en- Gratt. (Va.) 112. 130. tered authorizing and directing the 109 w. Va. Code, 1913, u. 84. §5; removal of the fund by the foreign Va. Code, 1904, §2631; Snavely v. guardian on his petition filed for Harkrader, 29 Gratt. (Va.) 112. that purpose. At the same term But it is not necessary to publish of court, a third party appeared additional notice on filing an and filed his petition claiming an amended petition. Fidelity Trust interest in the fund as a creditor Co, V. Davis Trust Co., 74 W. Va. of the father of the infants from 763, 83 S. E. 59. whose estate the fund was derived. iin/dem; Coltrane v. Worrell, 30 Touching the foreign guai'dian's Gi-att. (Va.) 434; Cochran v. Fill- right to remove the fund and the aiis, 20 S. C. 237; Central Trust propriety of making an order for Co. V. Hearne, 78 W. Va. 6, 88 S. that purpose, the rrurt in the E. 4.50. course of its opinion, delivered by I'l See same citations, and in par- Buchanan, J., says: "Although the ticular Fidelity Trust Co. v. Davis procedure for the removal of the Trust Co. fund was a summary one, the court 355 Petitions § 267 In a proceeding of this kind for the removal of the property of a person under the disability of infancy, any third party interested may appear by petition and controvert the right of the foreigL guardian to remove the fund out of the state into the state of his domicile.''^ But to a petition of this charac- ter filed by a third party the infants whose property is sought to be removed from the state are necessary parties, and no decree can be rendered on the petition in their absence."' §267. Petition to remove personal trust funds or assets of the estate of a decedent. It is provided by statute in West Virginia that "when any personal estate in this state is vested in a trustee resident therein, or who acts by virtue of a deed, will or other instru- ment, recorded or probated therein, or when any administrator or executor in this state, has assets in his hands of a decedent who at the time of his death was domiciled in another state, and those having the beneficial interest in said estate or assets, are nonresidents of this state, the circuit court of the county in which such trustee, administrator or executor may reside, or in which such estate may be, may upon petition or bill in equity filed for that purpose, order such trustee or his personal representative, or such administrator or executor to pay, trans- fer and deliver such estate or assets, or any part thereof, to a had the right to take all the neces- nor wliy the receiver of the court eary steps to ascertain whether it could not file a petition in the cause was a proper case for its removal, in which he was appointed, in order or if, after it had authorized its to bring to the attention of the removal, facts came to its knowl- court the fact that the foreign edge which showed that the order guardian, who had improperly re- fer the removal had been improp- moved the fund in controversy, had erly made, it was its duty, and it returned to this state, and to ask had the power, to direct all proper the court to compel him to do what proceedings to prevent its removal, he ought to have done before he or to secure tLd rights of the cred- removed the fund." itors therein. There does not seem "2 Clendening v. Conrad, 91 Va. to be any good reason why a party 410, 21 S. E. 818. in interest could not come into the "s Clendening v. Conrad, 91 Va. case by petition to assert his rights, 410, 21 S. E. 818. § 269 Equity Procedure 356 nonresident trastee, administrator or executor, appointed by some court of record in the state in which such beneficiaries reside.""^ § 268. Procedure to remove personal trust funds or a,ssets of the estate of a decedent. The application to remove trust funds or assets of the estate of a decedent out of the state must be made by petition or bill in equity filed for that purpose ; "' but if the application be by petition, notice of such application shall be given to all per- sons interested in such trust estate, either by personal service or by publication of such notice once a week for four succes- sive weeks in a newspaper. And no order for the removal of such trust funds or assets of a decedent's estate can be made until the court shall be satisfied by authentic documentary evi- dence that the nonresident trustee or personal representative has given bond at his domicile, with sufficient security, for the faithful execution of the trust, nor until it is further satisfied that the payment and removal of such estate out of the state will not prejudice the rights of any person interested or to become interested therein.^" §269. Petition for the sale of the property of any church, benevolent or educational association or institution. It is provided by statute in West Virginia ^^'' that whenever any such board of trustees as is mentioned in section 8 of chap- ter 57 of the Code, shall deem it to be promotive of the interests 114 W. Va. Code, 1913, ys. 84, § 6. be hers adsolutely. She may have A similar statute obtains in Vir- tlie trust fund removed to Missouri, ginia. Va. Code, 1904, § 2632. and vested in a trustee appointed "The trust deed provides that D. in that state to receive and hold shall have the interest and so much it on the same trusts." Coltrane of the principal of the trust funds v. Xorvell, 30 Gratt. (Va.) 434. as shall be n''?essary for her sup- us W. Va. Code, 1913, c. 84, §6; port. If she dies in the lifetime of Va. Code, 1904, § 2632. her husband she may dispose of the "« W. Va. Code, 1913, c. 84, § 7; whole of the trust fund in her will, Va. Code, 1904, § 2633. and if she survives him, it shall "^ W. Va. Code, c. 57, §9. 357 Petitions § 270 of those for whose use it holds any real estate, it may make sale of it, by filing a petition in equity in the circuit court of the county in which such lands, or the greater part of such lands, may lie, and such proceedings shall be had upon such petition as in a suit in chancery regularly brought and prosecuted in such court. In Virginia the statute not only provides for the sale of the land by the trustees, held for the use of any religious congregation, but also for its incumbrance by deed of trust or mortgage by a stiit in the name of any member of the congre- gation and on behalf of its other members, in the circuit court of the county, or corporation court of the county, wherein such land or the greater part thereof is situated, against the trustees or their survivors.*" And it is further provided by statute that the trustees of the congregation may file their petition in the same court, or before the judge in vacation, for leave to sell, encumber or exchange such lands or a part thereof.**' § 270. Proceedings upon a petition for the sale of the prop- erty of any church, benevolent or educational asso- ciation. The property held by the trustees of any particular church or religious society or denomination, when definite in its objects and purposes, will be treated as a trust, and will be dealt with by courts of equity by virtue of their ordinary jurisdiction.*^* The petition in this class of cases must be filed in the circuit court and not in the clerk's ofiSce thereof,*^* which should be done by the entry of the proper order in the chancery order book, and the court should direct an order of publication, and prescribe in the order directing it the time and manner of publishing it.*^^ The order of publication must be posted on the front door of the court house, and published at some con- spicuous place on the premises,*^' which evidently means on the premises to be sold. Any person interested may appear 118 Va. Code, )904, §1405. 121 W. Va. Code, 1913, 0. 57, §9. ■ 119 Va. Code, 1904, § 1406. 122 Idem. i2oCarskadon v. Torreyaon, 17 W. 123 Idem. Va. at p. 84. § 271 Equity Procedure 358 and resist the application to make sale of the property.^'^ The statute does not say whether the mere filing of the petition may be resisted, but it is reasonable to presume that this is not con- templated by the law, as a refusal to file a proper petition would preclude a hearing as to the propriety of ajiy sale and thus defeat the real purpose of the statute. § 271. When the court may order a sale of the property of any church, benevolent or educational association or institution. When the petition has been filed and the order of publication thereon has been duly executed, as shown in the next two pre- ceding sections, if a proper case has been made and it be made to appear to the court so that the court be of opinion that the rights of others will not be violated by a sale of the property, the court may order a sale of the land and make such disposi- tion of the proceeds of such sale as may be right and proper, and not inconsistent with the purposes for which the trust was created. But if the application be for the sale of church property, no sale can be made, unless it appear to the court that the majority of the members of such church, relig- ious sect, society, congregation or denomination desires the same ; but in any ease, where the authority to administer the affairs of such church, religious sect, society, congregation or denomination is, by its rules and ecclesiastical policy, com- mitted to a delegated or select body, such sale may be when it appears that such delegated or select body desires the same.^^^ 121 Mem. 126 W. Va. Code, 1913, c. 57, i 9. CHAPTER XIV PROCEDURE AT RULES § 272. Rule days for the filing of pleadings. i 273. The rule docket. § 274. The record of the proceedings at rules. § 275. What may be done at rules. § 276. Time allowed parties in which to plead. § 277. When bill must be filed at rules. § 278. Time witliin which defendant may appear at rules. § 279r The effect of the defendant's failure to appear and plead at rules. § 280. Cause must be set for liearing. I 281. When case may be set for liearing as to a part of defendants. S282. The abatement of a suit at rules. I 283. Observance of the rules essential to the maturing of a cause. § 272. Rule days for the filing of pleadings. It is provided by statute in West Virginia that ' ' in the clerk 's office of every circuit court, except where a different provision is made by law, rules shall be held on the first Monday of every month, except when a term of the circuit court happens to commence on the first Monday in a month, or either of the two following days, or on the preceding Tuesday, Wednesday, Thursday, Friday or Saturday, the rules which otherwise would have been held for the said month on the first Monday, shall be held on the last Monday in the next preceding month. The jules may continue three days ; but when in any case such con- tinuance would interfere with the terms of the court for which the rules are held, they shall not continue in such case beyond the day preceding the commencement of the term of such court. "1 iW. Va. Code, 1913, c. 125, § 1. held Gillett V. The American Stove Cole, 46 W. Va. 186, 32 S. E. 1033. & Hollow Ware Co., 29 Gratt. (Va. ) The affidavit must deny the exist- 565; Bait. & Ohio R. Co. v. Sher- ence of the corporation at the date man, 30 Gratt. (Va. ) 602; Doug- of the obligation sued upon. Rich- lass V. R. R. Co., 44 W. Va. 267, mond, etc., R. Co. v. N. Y., etc., R. 28 S. E. 705; Hall v. Lyons, 29 W. Co., 05 Va. 386, 28 S. E. 573. The Va. 410, 1 S. E. 582; Rutter v. denial must be direct and not by Sullivan, 25 W. Va. 427; Ruffncr, way of mere recital in an answer, etc., V. Hewitt, 14 W. Va. 737; Iguano Land & Mining Co. v. Jones, Carlon v. Ruffner, 12 W. Va. 297. 65 VV. Va. 50, 64 S. E. 640. There is a diversity of opinion as "' Shipman. Eq. PI., 460, citing to wliether such a plea is one in Story, Eq. PL, §735; Beames, PI. abatement or one in- bar. 1 C. J. Eq., 133. 115! 116; 10 Cyc. 1357; 30 Cyc. o^ rdcm ; Anderson v. Piercy, 20 583-4. Of course, tlie mere fact tliat W. Va. 282. it is required to be verified does not 387 Pleas in Abatement § 310 Pleas in abatement of this class are usually divided as fol- lows: 1. That there is another suit pending in a court of equity for the same matter and substantially between the same par- ties. 2. That there is a lack of proper parties to the bill. 3. That to sustain the cause would produce a multiplicity of suits. 4. That the bill is multifarious, in joining or confounding distinct and separate matters in the same suit.*' Notwithstanding the division, as here given, of pleas in abate- ment of this class, in practice their use is of rare occurrence, and with the exception of those coming under divisions 1 and 3, the grounds of objection are usually apparent upon the face of the bill and may be reached by demurrer. § 310. Plea in abatement of the pendency of another suit. The general rule in equity is the same as at law, and a plea of a former suit pending will be good if it be in the same or another court of equity in the same jurisdiction.'* The pri- ority, and not the pendency, of a former suit is what abates a second suit; so that if both suits are in fact commenced at the same point of time on the same day, each may be pleaded in abatement of the other and both may be defeated.'^ That the pendency of a suit may abate another subsequently brought, there must be a substantial identity of parties,"* and subject 63 Shipman, Eq. PI., 460; Story, suit is pending is not sufficient. Eq. PI. (9tli Ed.), §735; 1 Beach, Katzenstein v. Prager, 67 \V. Va. Mod. Eq. Pr., § 301. 343, 07 S. E. 792. 84 Mutual L. Ins. Co. v. Harris, 65 Beach v. Norton, 8 Conn. 71; 96 U. S. 588, 24 L. Ed. 737 ; Moore Davis v. Dunklee, 9 N. H. 545 ; V. Holt, 3 Tenn. Ch. 141; Johnston 1 C. J. 59. See McGrew v. Max- V. Bower, 4 H. and M. (Va.) 487; well, 80 W. Va. 718, 94 S. E. 395. American Bible Soc. v. Hague, 4 66 Bryan v. Scholl, 109 Ind. 367, Edw. Ch. (N. Y.) 117, 6 Law. Ed. 10 N. E. 107; Foley v. Euley, 43 818. But the objection must be W. Va. 513, 27 S. E. 268; Mc- made by plea or answer. A mere Allister v. Harman, 97 Va. 543, 34 suggestion to the court that another S. E. 474. §310 Equity Procedure 388 matter of suit,'' as well as the relief sought by the different suits.*' The pendency of an action in a foreign jurisdiction can not he pleaded in abatement of another suit commenced in a domes- tic forum, though there be identity of parties, of subject matter and relief sought.*' and the different states of the union are foreign to each other within the meaning and contemplation of this rule,'" and also a state court and a federal court held in another state or district. "^ Nor does the defense of another suit pending apply where the second bill, brought by a differ- ent person, although for the same matter as far as concerns the foundation of the demand, is for a different equity; nor where, although the second suit is brought by the same person for the same purpose, it is brought in a different right. '^ If a suit in equity and an action at law are pending for the same mat- ter between the same parties, one is not pleadable in abate- ment of the other.'' In such a case the proper method of making objection to the pendency of both suits for the same 0' Hyatt \. Ingalls. 124 N. Y. 93, 26 X. E. 285; Bryan v. SclioU, 109 Ind. 367. 10 N. E. 107; Robinson V. Allen, 85 Va. 721, 8 S. E. 855; t'orastock V. Droney Lumber Co., 69 W. Va. 100, 107, 71 S. E. 255, and cases cited; McAllister v. Harman, 07 Va. 543, 34 S. E. 474. 6S Coles V. Yorks, 31 Minn. 213 Pullman v. Alley, 53 N. Y. 637 Bolton V. Landers, 27 Cal. 104 Ma.\ey v. Larkin, 2 E. D. Smith (N Y.) 540; Pollock v. Ehle, 2 E. D Smith (N. Y.) 541. "The whole effect of the second suit must be attainable in the first." McAllister V. Harman, 97 Va. 543, 34 S. E. 474. " the same ings in the other will be barred. court for the same cause of action Post V. Bailey & Co., 68 W. Va. 434, should be presented by a plea or 69 S. E. 910. a, motion to dismiss as a nrelim- 75 Riley V. Jarvis, 43 W. Va. 43, , , ' , 26 S E 366 inary (question. As an incident 76 W. Va. Lode, 1913, c. 139, §7; among otlier matters in an answer See V. Rogers, 31 W. Va. 473, 475, on the merits, it will not avail. 7 S. E. 436. Anderson v. Piercy, 20 W. Va. 282. § 312 Equity Procedure 390 merit. But when the lack of proper parties does not thus appear, it is said that this defect or omission in the bill must be brouglit to the attention of the court by means of a plea in abatement, which must show who the omitted parties are, by name, if practicable, and, if not so, by a description which will point out to the complainant who the proper parties are, thus enabling him to amend his bill.*" Specific facts must be alleged showing that the omitted parties have an interest in the subject matter of the suit.^"^ But so careful are courts of equity that all persons to be affected by the decree shall be before the court that there may be an end to the controversy, that a want of proper parties may be brought to the attention of the court by means of an answer as well as by plea,*^ in which shall be shown who are the necessary parties in a plain and explicit manner.^^ Indeed, it has been decided that it is immaterial in what manner it is brought to the attention of the court of appeals that the decree complained of was ren- dered in the absence of proper parties; the cause will be re- versed and remanded, in order that proper parties may be made.^^ S" Shipman, Eq. PI.. 462, 403 "WIipto it is not apparent from 81 "To obtain abatement or 9U9- the l)jll itself that nece--^arT parties pension of proceedings in equity in are omitted, it can be taken ad- tlie nature of an abatement, on the vantage ot only liv plea or answer, ground of want of necessary par- showing who are the necessary par- ties, it must appear that the absent ties, and making the objection of a party has an interest in the subject want of parties in a plain and ex- matter of the suit that will be af- plicit manner. 2 Paige 2S0; 1 T. fected by the acliievcment of its ob- B Monroe 107; 1 A. K. Marsh 112; ject. It is not enougli to show that 1 Hogan 70. The defendants can he merely claims an interest. Facts demur only when it is apparent must be disclosed from which the from the bill itself that there are court can see that he has such an otlier persons who ought to have interest, if the statements of fact been made parties. -And the demur- are true." Jackson v. Big Sandy, rer should sliow who are the proper etc., R. R. Co., 63 W. Va. IS, 24, parties." Robinson v. Smith, 3 59 S. E. 749. Paige Ch. (N. Y.l 222, 24 Am. Dec. S2 Robinson v. Smith, 3 Paige Ch. 212. (N. v.) 222, 24 Am Dec. 212. f'l Gallatin Land. Coal and Oil Co. 83 Robinson v. Smith, 3 Paige Cli. v Davis, 44 W. Va. 109, 28 S. E. (N. y.) 222, 24 Am. Dec. 212. 747; Beekwith v. Lau.g, 66 W. Va. 246, 351, 60 S. E. 354. 391 Pleas in Abatement § 315 § 313. Plea in abatement that the proceeding would cause a multiplicity of suits. As stated by a reputable author,^^ "Courts of equity dis- courage the promotion of unreasonable litigation ; they will not permit a bill to be brought for a part of a matter only, where the whole controversy should be determined in one suit, and the objection may be taken by plea. This is really the main ground of the objection for want of proper parties, the ten- dency of such omission being to multiply litigation." § 314. Plea in abatement that the bill is multifarious. As we have already seen,^' when a bill is multifarious, this defect usually appears on the face of the bill and is reached by a demurrer, or noticed by the court, sua sponte, at the hear- ing. But if it does not so appear it may be raised by plea in abatement." § 315. Striking out or withdrawing plea in abatement from the record. If a plea in abatement improperly has been filed, the court may strike the same from the record of the cause and hear the case as if no such plea had been filed. ^^ So a plea in abatement in a chancery suit brought by one judgment creditor for him- self and all other lienors may be withdrawn by the defendant filing it, and another defendant can not avail himself of it, nor rely on its withdrawal as error.^' SB Shipman, Eq. PI., 464. ss Simpson v. Edmiston, 23 W. so Ante, § 155. Va. 675. sTSliipman, Eq. PI., 464; Story, ss Foley v. Ruley, 43 W. Va. 513, Eq. PI. (9th Ed.), §747. 27 S. E. 268. CHAPTER XVII THE DEMURRBE § 316. The object and scope of a demurrer. § 317. What matters are admitted by a demurrer. § 318. The form of a demurrer. § 319. Demurrer to a part of the bill. § 320. A demurrer ore tenus. § 321. The general matters which a demurrer will reach. § 322. Demurrer for want of jurisdiction. S 323. Demurrer for want of jurisdiction — further considered. § 324. Demurrer for defect of parties. § 325. Demurrer for want of interest in the parties or any of them. § 326. Demurrer because of incapacity to sue. § 327. Demurrer because of delay in bringing suit. § 328. Demurrer because of multifariousness. § 329. Demurrer because of the Statute of Frauds. § 330. The demurrer because of want of equity in the bill. § 331. Demurrer in cases of discovery. § 332. In cases of amended and supplemental bills. § 333. Demurrer in miscellaneous cases. § 334. Illustrative instances of the disallowance of a demurrer. § 335. The issue upon a demurrer. § 336. Scope of the hearing on demurrer. § 337. When a demurrer will be treated as having been overruled. § 338. What the court should do upon overruling a demurrer. § 339. When a demurrer may be filed. § 340. What to be done upon sustaining a demurrer. § 341. To what pleadings a demurrer may not be filed. § 342. Effect of dismissing bill on demurrer. § 316. The object and scope of a demurrer. The usual and proper object of a demurrer is either to pre- vent a discovery, or to save the expense of a protracted litiga- tion by settling the rights of the parties upon a matter of law arising upon the case made by the bill, thus avoiding the delay 392 393 The Demurrer §317 and costs incident to an answer, plea or proofs.^ A demurrer reaches, as is disclosed by its definition,^ only such defects as are apparent on the face of the bill, either because of matters averred in the bill or omitted from it, or because of defects in the frame or form of the bill, or in the case made by it.' § 317. What matters are admitted by a demurrer. A demurrer admits the truth of all such matters contained in the bill as are well pleaded.* Thus, it admits the execution of a contract set out in the bill as an exhibit ; ^ and where par- ties sue as heirs that they are heirs.* Where the law requires a notice to be given before the doing of a particular thing, an allegation that the notice, as required by statute, was not given, is admitted as true upon a demurrer.' And it admits all other allegations that are distinct and positive.* But a demurrer does not admit conclusions of law drawn from facts alleged in 1 Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige CU. (N. Y.) 284, 2 Law. Ed. 649 ; Verplank v. Gaines, 1 Jolins. Ch. (N. Y.) 57, 1 Law. Ed. 58; Harris v. Tliomas, 1 H. and M. (Va.) 18; Young v. Scott, 4 Hand. (Va. ), 41G; Northwestern Banls: v. Nelson, 1 Gratt. (Va.) 126. 2 Ante, § 286. 3 1 Bart., Cli. Pr. (2nd Ed.), 369. See the numerous cases cited in 4 Encyc. Dig. Va. & W. Va. Rep. 475. One who is not a party to a bill can not demur to it. Gall v. Gall, 50 W. Va. 523, 40 S. E. 380. It is not proper to file an exhibit wilh a demurrer. Old Dominion Iron & N. Co. V. C. & O. R. Co., 116 Va. 166, 81 S. E. 108. i Clark V. Mutual Reserve Fund Life Assn., 14 App. D. C. 154, 43 (L. R. A. 390; Southern Railway Co. V. Covenia, 100 Ga. 46, 29 S. E. 219, 62 Am. St. Rep. 312, 40 L. R. A. 253; Kankakee & S. R. Co. v. Ho- ran, 131 111. 288, 23 N. E. 621; Greig v. Russell, 115 111. 483, 4 N. E. 780; Lawrence v. Trainer, 136 III. 474, 27 N. E. 197; Women's Catholic Order v. Haley, 86 111. App. 330; Shaw v. Allen, 184 IH. 77, 56 X. E. 403; Allen v. South Penn. Coal Co., 58 W. Va. 197, 52 S. E. 454; Trumbo v. FuUc, 103 Va. 73, 48 S. E. 525; Van Dyke v. Norfolk & S. R. Co., 112 Va. 835, 72 S. E. 659; Browning v. Browning, 85 W. Va. 46, 100 S. E. 860; Eggleston v. Eggleston, 127 Va. 334, 103 S. E. 603; Parker v. Stephenson, 127 Va. 431, 104 S. E. 39; Watson v. Brun- ner, 105 S. E. 97 (Va. 1920) ; Round Bottom Coal & Coke Co. v. Ben Franklin Coal Co., 106 S. E. 716 (W. Va. 1921). But the ad- mission is only for purposes of arguing and deciding the demurrer. Hays V. Heatherly, 36 W. Va. 613, 15 S. E. 223. 5 Ryan v. McLane, 91 Md. 175, 46 Atl. 340, 80 Am. St. Rep. 438, 50 L. R. A. 501. 6 Edmonson v. Marshall, 6 J. J. Marsh (Ky.) 448. 7 1 Beach, Mod. Eq. Pr., § 228. 8 Campbell v. Lynch, 6 W. Va. 17; Gardner v. Landcraft, idem, 36; Clark V. Mutual Reserve Fund Life Assn., 14 App. D. C. 154, 43 L. R. A. 390. §318 Equity Procedure 394 the bill;' nor the effect and operation of the charter and by- laws of a corporation ; i" nor the construction of a written instrument as averred in the bill as against the construction required by its terms ; ^^ nor the conclusions or inferences drawn by the pleader from facts alleged, or which should have been alleged, in the bill ; ^^ nor the truth of impossible mat- ters as allegations of fact;^^ nor, where written documents are filed with the bill as parts of it, the allegations of the bill as true and correct as to what such documents prove, or what is their legal effect in law, but the court may look to and go by the documents themselves.^* § 318. The form of the demurrer. The courts and writers on equity practice recognize two kinds of demurrer, general and special.^^ The former is used when 9 American Waterworks Co. v. State, 46 Neb. 104, 64 N. W. 711, 50 Am. St. Rep. 610, 30 L. R. A. 447; Trumbo v. Fulk, 103 Va. 73, 48 S. E. 525; Van Dyke v. Nor- folk & S. R. Co., 112 Va. 835, 72 S. E. 659. 10 Clark v. Mutual Reserve Fund Life Assn., 14 App. D. C. 154, 43 L. R. A. 390. 11 Idem; Ryan v. McLane, 91 Md. 75, 46 Atl. 340, 80 Am. St. Rep. 438, 50 L. R. A. 501. A demurrer to a pleading setting out the instrument sued on does not admit that the construction tliereof averred is the true one; nor that the purpose ascribed to the parties thereto, when the same is not jus- tified by its language, is correct; nor that an alleged parol under- standing, which varies or contra- dicts the instrument, is competent or admissible. Newberry Land Co. V. Newberry, 95 Va. 119, 27 S. E. 899. See Freeman v. Carnegie Nat. Gas Co., 74 W. Va. 83, 81 S. E. 572. 1- See same citations. 13 Southern Railway Co. v. Co- venia, 100 Ga. 46, 29 S. E. 219, 62 Am. St. Rep. 312, 40 L. R. A. 253. 11 Lockhead v. Berkeley Springs, W. & I. Co., 40 W. Va. 553, 21 S. E. 1031; Freeman v. Carnegie Nat. Gas Co., 74 W. Va. 83, 81 S. E. 572, and cases cited; Roller v. Mur- ray, 107 Va. 527, 59 S. E. 421. Where a bill alleges a fact and states that a written exhibit will prove the fact, on demurrer the fact will be taken as true, although the exhibit does not prove it, provided the exhibit does not contradict it. Elswick V. Deskins, 68 W. Va. 396, 69 S. E. 894; Wells v. Simmons, 61 W. Va. 105, 55 S. E. 990. All the exhibits will be read together in support of the bill. Loar v. Wil- fong, 63 W. Va. 306, 61 S. E. 333; Houston Lumber Co. v. Wetzel & Tyler Railway Co., 69 W. Va. 682, 72 S. E. 786. 16 Story, Eq. PI. (9th Ed.), 455; 1 Beach, Mod. Eq. Pr., §231; Hord V. Dishman, 2 H. and M. (Va.) 600; 395 The Demueeer §318 no particular cause is assigned, except the usual formulary,*" that there is no equity in the bill,^'' and has always been suffi- cient when the bill is defective in substance ; ^* and the latter was indispensable where the objection went to the form of the bill.^^ In the absence of statute, a demurrer will be treated as bad if it merely states that the defendant demurs to the bill. It must express some cause or ground of demurrer, either gen- eral or specific.^" In West Virginia special demurrers going simply to the form of the bill are no longer in use,^*^ so that the form of demurrer prescribed by statute, containing the allegation that the bill is not sufficient in law, is sufficient for all purposes under the rules of equity practice in this state.^^ Neal V. Hanson, 60 Me. 86; Peo- ple V. Holden, 91 111. 446; Ohio, etc., R. Co. V. People, 149 111. 663, 36 N. E. 989; Hays v. Heatherly, 36 W. Va. 613, 15 S. E. 223. 16 "The common form of a de- murrer for want of equity is as fol- lows: 'These defendants, by protes- tation, not confessing all or any of the matters and things in the complainant's bill contained, to be true in sucli manner and form as the same are therein set forth and alleged, do demur to the said bill, and for cause of demurrer show that the said complainant has not, by his said bill, made such a case as entitles him, in a court of equity, to any discovery from these defend- ants respectively, or any of them, or any relief against them, as to the matters contained in the said bill, or any of such matters, and that any discovery which can he made by these defendants, or any of them, touching the .matters com- plained of in the said bill, or any of them, can not be of any avail to the said complainant for any of the pur- poses for which a, discovery is sought against these defendants by the said bill, nor entitle the said complainant to any relief in this court, touching any of the matters therein complained of. Wherefore, and for divers other good causes of demurrer appearing in the said bill, these defendants do demur thereto, and they pray the judgment of this honorable court, whether they shall be compelled m make any further and other answer to the said bill; and they humbly pray to be dis- missed from hence with their rea- sonable costs in this behalf sus- tained.'" Story, Eq. PL (9th Ed.), § 483, note 3. 17 Story, Eq. PI. (9th Ed.), § 455; 1 Beach, Mod. Eq. Pr., §231. 18 Story, Eq. PI. (9th Ed.), § 455. i» Story, Eq. PL, § 455 ; Marsh v. Marsh, 16 N. J. Eq. 391, 84 Am. Dec. 164. =" Cook V. Dorsey, 38 W. Va. 196, IS S. E. 468. 21 Cook V. Dorsey, 38 W. Va. 196, 18 S. E. 468; Jones v. Clark, 25 Gratt. (Va.) 642; Dunn v. Dunn, 26 Gratt. (Va.) 291. 2= Jones V. Clark, 25 Gratt. (Va.) 642; Dunn v. Dunn, 26 Gratt. (Va.) 29) : Took V. Dorsey, 38 W. Va. § 319 Equity Procedure 396 And it is sufficient if the record recites that the defendant ap- pears and demurs to the plaintiff's bill, this being equivalent to saying that ' ' the bill is not sufficient in law. ' ' ^' And a demurrer without assigning cause or ground, inserted in an answer, which simply states that "the bill is not sufficient in equity to entitle the plaintiff to the relief which he seeks," or "to any relief in a court of equity," is deemed sufficient and will be held good as to form.^* It is not unusual in the Virginias to insert the demurrer in the answer and then fol- low it up with the niatters relied on by the answer.^^ § 319. Demurrer to a part of the bill. When a general demurrer is entered to the whole bill, if the plaintiff is entitled to any relief whatever upon the facts averred in the bill, the demurrer must be overruled. ^^ To en- able the defendant to reach the matter of the bill which is objectionable and to test its sufficiency as a mere matter of law, without answer or other defense, he may demur to differ- 196, 18 S. E. 468; Stewart v. Jack- 463. But see Matney v. Ratliff, 96 son, 8 W. Va. 29; 1 Bart., Ch. Pr. Va. 231, 31 S. E. 512. (2nd Ed.), 370. No ground need be ,, jj.^ Cook v. Dorsey, 38 W. assigned. Anderson v. Anderson, 78 ' ■' W. Va. 118, 88 S. E. 653, and cases ^^- 196, 18 S. E. 468; Matthews cited; James Sons Co. v.' Farley, 71 v. Jenkins, 80 Va. 463. But such W. Va. 173, 76 S. E. 160. Hence, a demurrer should be mentioned in assignment of an insufficient ground ,, i- ^ 4.1 „ j u u .,," , 1 J iu jT f „ the caption of the answer and should will not preclude the court from '^ acting on a proper ground not as- b« ^^^^ ^J »•" o''''^'' °^ court. Other- signed. Depue V. Miller, 65 W. Va. wise, in the absence of any order or 120, 64 S. E. 740, 23 L. R. A. (N. decree showing action upon it, it S.) 775. "A demurrer is none the v x i j r -i- less general because it assigns a "^^ ^' ^''"'^'^ "^ ^ f"g't'^« P^P"'- number of distinct grounds there- Cross v. Gall, 65 W. Va. 276, 278, for." Pyles v. Carney, 85 W. Va. 64 S. E. 533, and cases cited. 159, 101 S. E. 174. See Rees v. 2g stuyvesant v. New York, 11 Emmons Coal Mining Co., 106 S. E. t> . m i-kt v \ at a a t -cj 247 (W. Va. 1921). ^^^^^' ^^^- ^^- ^'^ *^*' ^ ^^"^^ ^^^ Under the present statute in Vir- 182 and note; Verplank v. Caines, ginia, grounds must be assigned if 1 Johns. Ch. (N. Y. ) 57, 1 Law. Ed. required by tlie court or a party, 53 and note; Higinbotham v. Bur- and no other grounds than those 5 assigned may be considered. Va. ' > / > Code 1904 §3271. Law. Ed. 1050 and note; Whitloek 23 Stewart v. Jackson, 8 W. Va. v. Duffield, 2 Edw. Ch. (N. Y.) 366, 2!>. 6 Law. Ed. 432; Gay v. Skeen, 36 24 Dunn V. Dunn, 26 Gratt. (Va.) „, ,r iroo ic o t^ oa tiih 291; Matthews v. Jenkins, 80 Va. ^^'- ^^^ ^^S, 15 S. E. 64; Miller v. 397 The Demurrer §320 ent and distinct parts of the same bill." Hence, where a bill sets forth various claims by distinct and separate paragraphs, and there is a demurrer specifically to each of the several claims therein set up, and some of such claims authorize no re- lief in the suit, the demurrer will be sustained as to all of those claims adjudged bad and overruled as to the residue.^* If several defendants join in a demurrer, it may be good as to one and as to him sustained, and bad as to another, and as to such other disallowed.^' Where a demurrer is filed to a part of a bill it should not omit to specify tie part demurred to.'" § 320. A demurrer ore tenus. When cause of demurrer has been assigned in the demurrer, the party demurring is not restricted to the ground assigned, Hare, 43 W. Va. 647, 28 S. E. 722, 39 L. R. A. 491; Turner v. Stewart, 51 W. Va. 493, 41 S. E. 924; Allen V. South Penn Coal Co., 58 W. Va. 197, 52 S. E. 454 ; Trough v. Trough, 59 W. Va. 464, 53 S. E. 630, 4 L. K. A. (N.S.) 1185, ,115 Am. St. Rep. 940; Dudley v. Niswander, 65 W. Va. 461, 64 S. E. 745; Smith v. Peterson, 71 W. Va. 364, 76 S. E. 804; City of Wheeling v. Chesa- peake & Potomac Tel. Co., 82 W. Va. 208, 95 S. E. 653; Pyles v. Carney, 85 W. Va. 159, 101 S. E. 174; Ohio Finance Co. v. Mannington Window Glass Co., 103 S. E. 333 (W. Va. 1920) ; Sperry v. Premier Poca- hontas Collieries Co., 104 S. E. 486 (W. Va. 1920) ; Rees v. Emmons Coal Mining Co., 106 S. E. 247 (W. Va. 1921); Round Bottom Coal & Coke Co. V. Ben Franklin Coal Co., 106 S. E. 716 (W. Va. 1921). Many of the cases above cited apeak of a general demurrer, mean- ing not a general demurrer in the technical sense understood in chan- cery practice as distinguished from a special demurrer, but merely a demurrer to the whole bill as dis- tinguished from a demurrer to a part of the bill. 27 Gay V. Skeen, 36 W. Va. 588, 15 S. E. 64; Caatleman v. Veitch, 3 Rand. (Va.) 598; Powder Co. v. Powder Works, 98 U. S. 126. See Turner v. Stewart, 51 W. Va. 493, 41 S. E. 924, and other cases cited in note 26 supra. 28 See same citations. It is not necessary to demur to separate items of a general account. Gist V. Virginian Railway Co., 79 W. Va. 167, 173, 90 S. E. 554. "Upon demurrer directed to par- ticular allegations, the general pur- pose of the whole bill will be con- sidered, so as to test their proper relation to some general equity to which the plaintiff shows himself entitled." Miller v. Sterringer, 66 W. Va. 169, 66 S. E. 228, 25 L. R. A. (N.S.) 596. 29 1 Bart., Ch. Pr. (2nd Ed.), 369; Barstow v. Smith, Walk. (Mich.) 394. "A joint demurrer to a bill in equity by two defendants operates jointly and severally, and may be sustained as to one of them and overruled as to the other." City of Wheeling v. Chesapeake & Potomac Tel. Co., 82 W. Va. 208, 95 S. E. 653. As to a joint demurrer for misjoinder, see Alleman v. Sayre, 79 W. Va. 763, 91 S. E. 805. Held, insufficient. 30 Clancy v. Craine, 2 Dev. (N. C.) Eq. 363; Gray v. Regan, 23 Miss. 304. §321 Equity Procedure 398 but may assign other causes at the hearing, which is called a demurrer ore tenus.^^ And inasmuch as all demurrers are deemed sufficient in West Virginia, though they assign no causes of demurrer, in this state, all demurrers are practically ore terms; though it is held that a demurrer to a bill for want of parties should properly name the necessary parties defend- ant, who have been omitted, so as to direct attention to this defect and enable the plaintiff to amend his bill.^^ But to authorize a demurrer ore tenus there must be a demurrer on the record.^' § 321. The general matters which a demurrer will reach. At all times bearing in mind the primordial principle that the defect sought to be reached by demurrer must appear on the face of the bill,^* it will lie in the following classes of cases: (1) where the court is without jurisdiction;'^ (2) where there is a defect as to necessary parties; '^ (3) where there is a want 31 1 Dan., Ch. Pr. (4th Am. Ed.), 588. A demurrer may be sustained on a ground not assigned. Depue V. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. E. A. (N.S.) 775; Brown V. Smith, 84 W. Va. 429, 100 S. E. 279. 32Eobinson v. Dix, 18 W. Va. 528; Dias v. Barchaud, 10 Paige Ch. (N. Y.) 445, 4 Law. Ed. 1044; Swiger V. Swiger, 58 W. Va. 119, 62 S. E. 23. But aee, Thompson v. Hern, 62 W. Va. 497, 59 S. E. 504. 33 Fletcher, Eq. PI. and Pr., § 202, citing Cooper, Eq. PL, 112; Story, Eq. PI., §464; 1 Barbour, Ch. Pr., 109; Durdant v. Redman, 1 Vern. 78; Hook V. Dorman, 1 Sim. and S. 227; Attorney-General v. Brown, 1 Swanst. 288. But the record need not show which of two similarly interested defendants interposed the demurrer. Brown v. Cornwell, 108 Va. 129, 60 S. E. 623. 34 Harris v. Thomas, 1 H. and M. (Va.) 18; Coffman v. Sangston, 21 Gratt. (Va.) 263; GrKTin v. Stewart, 101 Ga. 720, 20 S. E. 29; Stafford V. Howlett, 1 Paige Ch. (N. Y.) 200, 2 Law. Ed. 616; Davoue v. Fanning, 4 Johns. Ch. (N. Y.) 199, 1 Law. Ed. 813. 3'' Alderson v. Biggars, 4 H. and M. (Va.) 473; Hoke v. Davis, 33 W. Va. 48.5, 10 S. E. 820; Childress V. Morris, 23 Gratt. (Va.) 802; Van Dorn V. Lewis County, 38 W. Va. 267, 18 S. E. 570; Virginia Mining Co. V. Wilkinson, 92 Va. 98, 22 S. E. 839; Tliompson v. Whittaker Iron Co., 41 W. Va. 574, 23 S. E. 795; Carberry v. W. Va. & P. R. Co., 44 W. Va. 260, 23 S. E. 694; Mitchell V. Lenox, 2 Paige Ch. (N. Y.) 280, 2 Law. Ed. 907. See post, §§ 322, 323. 30 Hill V. Proctor, 10 W. Va. 60; McCoy V. Allen, 16 W. Va. 724; Woods V. Ellis, 85 Va. 471, 7 S. E. 852. See post, § 324. 399 The Demurrer §322 of interest in the parties or any of them;" (4) for incapacity to sue;^* (5) because of delay in bringing suit ; '^ (6) where the bill is multifarious;'"' (7) because of the statute of frauds;" (8) for want of equity;" (9) in eases of discov- ery;^^ (10) in cases of amended and supplemental bills.** S 322. Demurrer for want of jurisdiction. As we have already seen,*^ unless the want of jurisdiction appears on the face of the bill, the question of jurisdiction must be raised by plea in abatement; but where the lack of jurisdiction does so appear, it is reached by demurrer. But the objection thus apparent must be an absolute bar to the jurisdiction of a court of equity, one that impugns the right to sue in that court altogether,*^ and not one that merely tends to divert the proceeding to some other equitable jurisdiction, 3' Carter v. Carter, 82 Va. 624; Lefew V. Hooper, 82 Va. B46, 1 S. E. 208; Clarkson v. De Peyster, 3 Paige Ch. (N. Y.) 336, 3 Law. Ed. 178; Morse v. Hovey, 9 Paige Ch. (N. y.) 197, 4 Law. Ed. 665; Key- ser V. Renner, 87 Va. 249, 12 S. E. 406. See post. § 325. as 6 Enc. PI. and Pr., 312; 1 Bart., Ch. Pr. (2nd Ed.) 373; 1 Beach, Mod. Eq. Pr., §§ 40, 233, 250, 251. See post, §326. 39 Paxton V. Paxton, 38 W. Va. 616, 18 S. E. 765; Muir v. Lealce & W. Orphan House, 3 Barb. Ch. (N. Y.) 477, 5 Law. Ed. 978; Hum- bert V. Trinity Church, 7 Paige Ch. (N. Y.) 195, 4 Law. Ed. 121. See post, § 327. 40 Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec. 184; Wells v. Sewell's Point Guano Co., 89 Va. 708, 17 S. E. 2; Hawkins v. Ga. & A. R. Co., 108 Ga. 784, 33 S. E. 682. See post, § 328. 41 Box V. Standford, 13 Smeedes & M. 98 (Miss.), 51 Am. Dee. 142; Cozine v. Graham, 2 Paige Ch. (N. Y.) 177, 2 Law. Ed. 862. See post, §329. 42 Brill V. Stiles, 35 HI. 305, 85 Am. Dec. 364; Abernathy v. Phil-, lips, 82 Va. 760, 1 S. E. 115; Banks V. Walker, 3 Barb. Ch. (N. Y.) 438, 5 Law. Ed. 963; Bleeker v. Bingham, 3 Paige Ch. (N. Y.) 246, 3 Law. Ed. 138. See post, § 330. 43 March v. Davison, 9 Paige Ch. (N. Y.) 580, 4 Law. Ed. 823; Kuy- pers V. Reformed Dutch Church, 6 Paige Ch. (N. Y.) 570, 3 Law. Ed. 1106; Livingston v. Harris, 3 Paige Ch. (N. Y.) 528, 3 Law Ed. 261. See post, §331. 44 Fudge V. Payne, 86 Va. 303, 10 S. E. 7 ; Tennant v. Dunlop, 97 Va. 234, 33 S. E. 620; Crockett v. Woods, 97 Va. 301, 34 S. E. 96. See post, § 332. 45 Ante, § 305. 40 1 Bart., Ch. Pr. (2nd Ed.), 371; 1 Dan., Ch. Pr. (4th Am. Ed.), 549 ; 1 Beach, Mod. Eq. Pr., § 233. § 323 Equity Proceduee 400 or merely to suspend or abate the suit." A demurrer to the bill for want of jurisdiction will lie only when it is clear that, taking the charges in the bill to be true, it would be dismissed at the hearing.*^ That is, it must appear that the suit is one which, under no circumstance, can be brought within the ordi- nary scope of a court of equity/' The want of jurisdiction in a court of equity, for matter apparent on the face of the bill, may be raised at the hearing as well as by demurrer.'" It may even be raised for the first time in the court of appeals, though no demurrer was interposed to the bill.'^ The question of jurisdiction may be raised at any time, and the court may, sua spontc, dismiss the bill for want of jurisdiction, though the objection be not raised by the pleadings, nor suggested by the parties.^^ § 323. Demurrer for want of jurisdiction — Ftirther considered. As to what is proper matter for the jurisdiction of a court of equity is foreign to a work of this character,'^ but it is well settled that wherever the law affords a plain and adequate rem- edy, equity can not take jurisdiction; and if it is disclosed by the bill that such legal remedy is open to the plaintiff, a de- murrer will lie to his bill.'* <7 1 Bart., Ch. Pr. (2nd Ed.), 371. 164, 59 L. R. A. 556, 94 Am. St. 48 1 Dan., Ch. Pr. (4th Am. Ed.), Rep. 895, and cases cited. 543. 51 Collins v. Sutton, 94 Va. 127, is Idem. But "where all the cir- 26 S. E. 415; Boston Blower Co. eumstances which would be requisite v. Carman Lumber Co., 94 Va. 94, in a plea to show that the court has 26 S. E. 390. Even the plaintiff no jurisdiction are shown in the bill may raise the objection in the court a demurrer will lie.'' Idem (5th of appeals. Freer v. Davis, 52 W. Ed.), 555. Va. 1, 43 S. E. 164, 59 L. R. A. 60 Alderson v. Biggars, 4 H. & M. 556, 94 Am. St. Rep. 895. See Bus- (Va.) 473; Carberry v. W. Va. & P. kirk v. Ragland, 65 W. Va. 749, 65 R. Co., 44 W. Va. 260, 28 S. E. S. E. 101. 694; Jones v. Bradshaw, 16 Gratt. ^2 See same citations. (Va.) 355; Collins v. Sutton, 94 =3 For a consideration of this Bub- Va. 127, 26 S. E. 415; Hudson v. ject vide Story, Eq. Jur.; Pomeroy, Kline, 9 Gratt. (Va.) 379; Morgan Eq. Jur.; Hogg, Eq. Princp.; and V. Carson, 7 Leigh (Va.) 238; Poin- other works of like character, de-xter v. Burwell, 82 Va. 507; Freer o* Hudson v. Kline, 9 Gratt. (Va.) v; Davis, 52 W. Va. 1, 43 S. E. 379; Buford v. Chichester, 69 W. 401 The Demurrek §324 § 324. Demurrer for defect of parties. Where there is an omission of necessary parties to the bill, and such omission is apparent from the bill itself, advantage may be taken of such defect by demurrer. ^^ But a demurrer will not be sustained on this ground where all the parties whose rights are to be affected by the decree are joined in the bill.^* A defect of parties may be availed of by demurrer ore tenus}'^ A misjoinder of parties which, as usually, appears on the face of the bill may be raised by demurrer to the whole bill ; ^* but as a general rule, only the defendant improperly joined can demur on this ground,^' the objection then being treated as a personal privilege.*" Va. 213, 71 S. E. 120; Shepherd v. Craig, 70 W. Va. 218, 73 S. E. 712; Rowan t. Tracy, 74 W. Va. 649, 82 S. E. 478: 4 Ency. Dig. Va. & W. Va. Rep. 476. and cases cited; Fidel- ity & Deposit Co. V. Gill, 116 Va. 86, 81 S. E. 39.. 55 Harrison v. Wallton, 95 Va. 721. 30 S. E. 372, 64 Am. St. Rep. 830; National Bank v. Bates, 20 W. Va. 210; Robinson v. Dix, 18 W. Va. 529; Lynchburg Iron Co. v. Tay- loe, 79 Va. 671; Clark v. Long, 4 Rand. (Va.) 451: Walbrecht v. Hol- brook, 66 W. Va. 296, 66 S. E. 335 ; Jones V. Grim & Peck, 66 W. Va. 301, 66 S. E. 367; Augir v. Warder, 68 W. Va. 752, 70 S. E. 719, 33 L. R. A. (N.S.) 69: James Sons Co. V. Farley, 71 W. Va. 173, 76 S. E. 169; Buchanan Co. v. Smith, 115 Va. 704, 80 S. E. 794. But "a bill against a number of parties, as heirs of a decedent, is not demurrable because it does not aver that the parties named are all of the heirs." Cartright v. Cart- right, 70 W. Va. 507, 74 S. E. 655. The bill, t'' be demurrable, must show the actual, not merely pos- sible, absence of necessary parties. Idem. 56 Swedish Evangelical Lutheran Church V. Shivers, 16 N. J. Eq. 453. Error in overruling a demurrer for nonjoinder will be cured by subse- quent proof that the apparent non- joinder does not exist. White v. White, 64 W. Va. 30, 60 S. E. 885. 57Betton V. Williams, 4 Fla. 11; Johnes v. Cutwater, 55 N. J. Eq. 398 ; Gordon v. Holland, 3 Ired. Eq. (N. C.) 362. But see ante, §320. ssStookey v. Carter, 92 111. 129; Abernathy v. Phillips, 82 Va. 769; Tavenner v. Barrett, 21 W. Va. 656; Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Vaiden v. Stubble- field, 28 Gratt. (Va.) 153. But under the present Virginia statute a misjoinder is not ground for de- murrer. The remedy is motion for abatement as to the parties mis- joined. Va. Code, 1904, § 3258a; Lee V. Mutual R. F. Life Assn., 97 Va. 160, 33 S. E. 556; Riverside Cotton Mills V. Lanier, 102 Va. 148, 45 S. E. 875. 59 Davis V. Henry, 4 W. Va. 571; Hopson V. Harrell, 56 Miss. 203; Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618, 5 Law. Ed. 775; Butts v. Genung, 5 Paige Ch. (N. Y.) 256, 3 Law. Ed. 707 ; Alleman v. Sayre, 79 W. Va. 763, 91 S. E. 805. 60 Idem. § 326 Equity Procedure 402 § 325. Demurrer for want of interest in the parties or any of them. When the plaintiff has no interest in the subject matter or object of the suit, such as will authorize him to bring the suit (and his right to bring the suit must clearly appear from the bill), a demurrer will lie to the bill on this ground.'^ If the want of interest or right to sue does not appear on the face of the bill, the defendant may show such fact by plea or answer.'^ Thus, if a boom is erected and maintained on a navigable stream in violation of law, and is therefore a public nuisance, an indi- vidual has no cause of complaint aside from that of the common public, unless he suffer a special and peculiar damage there- from, distinct and apart from the common injury.^' And a demurrer will lie against one or more joint complainants who have no interest, although the other or others are entitled to maintain the suit.^* Likewise may a demurrer be sustained as to one or more of the defendants to a bill which fails to show that such defendants have an interest in the subject matter of the suit.^^ § 326. Demurrer because of incapacity to sue. If a person under disability, such as an infant, idiot, lunatic, or a married woman, unless it be a case in which she may prop- erly sue,^^ file a bill, and such disability appear on the face of it, and no next friend or committee, by whom the suit must be brought, is named in the bill, the bill will be demurrable; but if such incapacity does not so appear, advantage can be taken of it only by plea in abatement.^' »i Crane v. Deming, 7 Conn. 303; oa See same citations. Crawfol-d & Co. v. Gamble, 22 Fla. »3 Miller v. Hare, 43 W. Va. 647, 487; Carter v. Carter, 82 Va. 624; 28 S. E. 722, 39 L. R. A. 491. Switzer v. McCulloch, 76 Va. 777; o4 i Bart., Ch. Pr. (2nd Ed.), 372. Keyser v. Eenner, 87 Va. 249, 12 s' Idem ; Preston v. West, 55 W. S. E. 406; Sillings v. Bumgardner, Va. 391, 47 S. E. 152. 9 Gratt: (Va.) 273; Barr v. Clay- •>« As to what is said as to the in- ton, 29 W. Va. 256, 11 S. E. 899; stitution of suits by a married Coffman v. Sangston, 21 Gratt. woman, see ante, §§69, 88, 89. (Va.) 263; Roberts v. Gruber, 74 6M Beach, Mod. Eq. Pr., §250. W. Va. 550, 82 S. E. 367. 403 The Demurrer § 327 § 327. Demurrer because of delay in bringing suit. Whatever may have been the rule formerly,"^ it is now well settled in most jurisdictions that if there appears oh the face of the bill to have been ^ueh a lapse of time since the cause of action arose and the bringing of the suit as to preclude a recov- ery by reason of the bar of the statute of limitations, and there is nothing stated in the bill to avoid the effect of such lapse of time, the objection may be taken by demurrer as well as by plea.^' But the rule is otherwise in Virginia, and there it can be availed of only by plea or answer,^" although the practice generally obtaining elsewhere would seem the more commend- able, as based on both reason and expediency. The defense of laches may also be raised by demurrer, and in Virginia as well as in West Virginia.'^ If, however, it does not distinctly appear from the bill that the suit is barred by limitation, a demurrer on that ground will be overruled.'^ The defense of laches may be relied upon in the argument at the hearing of the cause, or raised by the court upon its own motion, though no demurrer, plea or answer has been filed.'' 8S 1 Dan., Ch. Pr. (4th Am. Ed.), element of the right, as in a suit 559. to enforce a mechanic's lien, the es Jackson v. Hull, 21 W. Va. bar of the statute may be inter- 601 ; Bercy v. Lavretta, 63 Ala. i)osod bv demurrer. Savings Bank 374: Trapnall v. Burton, 24 Ark. v. Powliatan Clay Mfg. Co., 102 Va. 371: Ilett v. Collins, 103 111. 74; 274, 46 8. E. 21)4. Lawrence v. Rokes, 61 Me. 38; Fogg ^i Foj!g v. Price, 145 Mass. 513, V. Price, 145 Mass. 513, 14 N. E. 14 X. E. 741: Newberger v. Wells, 741; Archer v. Jones, 26 Miss. 583; 51 W. Va. 624, 42 S. E. 625; Hols- Humbert V. Trinity Church, 7 Paige berry v. Harris, 56 VV. Va. 320, 49 Ch. (N. Y.) 105, 4 Law. Ed. 12L,- S. E. 404; Ruckman v. Cox, 63 W. and cases cited in the note; Jarvis Va. 74, 59 S. E. 760: Depue v. Mil- V. Martin, 45 W. Va. 347, 31 S. E. ler, 65 W. Va. 120, 64 S. E. 740, 23 957; Talbott i. Woodford, 48 W. L. R. A. (X.S.) 775: Harris v. Va. 449, 37 S. E. 580; Wait v. Michael, 70 W. Va. 3.36, 73 S. E. Homestead Building Ass'n, 76 W. 934; Hogg v. Shields, 114 Va. 403, Va. 431, 85 S. E. 637; Newberger 76 S. E. 934; Carter v. Price, 85 W. V. Wells, 51 W. Va. 624, 42 S. E. Va. 744, 102 S. E. 685. 625; Pyles v. Carney, 85 W. Va. '2 1 Beach, Mod. Eq. Pr., §257. 159, 101 S. E. 174. 73 Hogg, Eq. Princp., § 300, p. 70 Hubble v. Poff, 98 Va. 646, 37 419; Ruckman v. Cox, 63 W. Va. S. E. 277. But where the statute 74, 59 S. E. 760; Hogg v. Shields, creating a right to sue at the same 114 Va. 403, 76 S. E. 934. time imposes the limitation as an § 329 Equity Procedure 404 § 328. Demurrer because of multifariotisness. In addition to what has already been said as to this matter,'* we remark in the language of Brannon, P., in Johnson v. Sanger," that "it is difficult to say when it [multifariousness] applies." And in the language of the same judge in Oney v. Ferguson,''^ "it is difficult to apply the rule of multifarious- ness in practice. The instances are numerous and inharmoni- ous. A suit is not thrown out of court for this fault, except in a plain case." And it is further said that "it is discouraged by the courts where it would defeat, instead of promote, the ends of justice.'' It is well established that the courts exer- cise a wide discretion in enforcing and refusing to enforce a dismissal for this cause. Where convenience and the adminis- tration of justice will be furthered by disregarding the objec- tion of multifariousness, it may be done. ' "' § 329. Demurrer because of the Statute of Frauds. If an agreement which must be in writing to render it valid appears oq the face of the bill to be only a parol agreement, and nothing is shown in the bill to take the case out of the opera- tion of the statute, the defendant may demur.'' The effect in such a case is to admit the parol agreement and claim the ^*Ante. §§ 152-155. Y.) 177, 2 Law Ed. 863 and note; 76 49 \V. Va. 405. 3S S. E. 045. Cliamplin -v. Parisli, 11 Paige Ch. 7«41 W. Va. 570. 23 S. E. 710. (X. Y.) 405, 5 Law. Ed. 170 and See Suit >. Hoclistettcr Oil Co., C3 note: Smith v Peterson, 71 W. Va. W. Va. 317, 61 S. E. 307. 364, 76 S. E. 804; 10 Stand. Proe. '7 Brannon, P., in Jolmson v. San- 73. ger, 49 \V. Va. 405, 3S S. E. 645, "A bill having for its chief object citing 1 J^art., Ch. Pr., 272. the enforcement of an oral contract 78 Brannon, P., in Johnson v. San- not executed as required by clause ger, t9 W. Va. 405, 38 S. E. 645. 6, c. 98, Code (§4171) is" subject See Arnold v. Knapp, 75 W. Va. to the challenge of a demurrer, as 804, 809, 84 S. E. 895. stated in Hogg, Kq. Pro., § 306, and '9 Beadle v. Seat, 102 Ala. 532, as appellee contends. But the chal- 15 So. 243; ITarpcr v. Campbell, 102 lenge becomes inefTecti"e as a eaus& Ala 342, 14 So. 650; Clifford v. for dismissal of such a bill when, by Heald, 141 JIass. 322, 6 N. 3. 227; reason of part performance of the Cozine v. Graham, 2 Paige Ch. (N. contract, to sanction that course 405 The Demurrer 5 330 benefit of the statute.^" If the bill merely states that an agree- ment was made between the parties, on a demurrer to it, the contract will be presumed to have been reduced to writing and signed by the parties or their agents, where the law requires the contract to be in writing in order to render it valid.** It is necessary, as a rule, to rely upon this defense by plea or answer, as it is seldom that the bill discloses everything neces- sary for the defense.*^ § 330. The demurrer because of want of equity in the bill. It is said that where one seeks to obtain by his bill an unfair advantage or is guilty of fraud, or where he does not show that he has done something which should be done as a condition to the relief prayed, or where his claim is unlawful or against public policy, a demurrer will lie.*^ clearly would operate to the mani- fest prejudice of the complainant. If in relying in good faith upon the promises of the covenantor, part of the consideration of a contract, and with the knowledge and consent of the latter, he expends a vast amount of money, he thereby produces such a situation as warrants a court of equity in giving him the relief to which he may be entitled notwith- standing the statutory requirement. Its purpose was to prevent, not sanction, fraud. That principle of law o? legislative enactment would be an anomaly which while at- tempting to prevent fraud, would become an instrumentality for the perpetration of fraud. Richardson V. McConaughey, 55 W. Va. 546, 47 S. E. 287." Brown v. Western Maiy- land Ry. Co., 84 W. Va. 271, 99 S. E. 457. so 1 Beach, Mod. Eq. Pr., § 260. 81 Cozine v. Graham, 2 Paige Ch. (N. Y.) 177, 2 Law. Ed. 863; Champlin \. Parish, 11 Paige Ch. (N. Y.) 405, 5 Law. Ed. 179; Lath- rop v. Columbia Collieries Co., 70 W. Va. 58, 73 S. E. 299; 10 Stand. Proc, 74; Kennedy v. Burns, 84 W. Va. 701, 101 S. E. 156. 82 1 Dan., Ch. Pr. (4th Am. Ed.), 561; Fleming v. Holt, 12 W. Va. 143; Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220; Cunningham V. Cunningham, 46 W. Va. 1, 32 S. E. 998; Moore, Keppel & Co. v. Ward, 71 W. Va. 393, 76 S. E. 807, Ann. Cas. 1914C, 263, and cases cited. 83 1 Bart, Ch. Pr. (2nd Ed.), 374, citing Story, Eq. PI., §§505-507. See and examine Jones v. Roberts, 6 Call (Va.) 187, 203-4; Kelly v. Jones, 2 Call (Va.) 204; Lipscomb V. Winston, 1 H. and M. (Va.) 454; Haydon v. Good, 4 H. and M. (Va.) 460; Kerr v. Kerr, 84 Va. 154, 5 S. E. 89; Parker v. Carter, 4 Munf. (Va.) 273, 6 Am. Dec. 513; Smith V. Marks, 2 Rand. (Va.) 449. § 332 Equity Procedure 406 § 331. Demurrer in cases of discovery. If a party files a bill seeking a discovery, and an answer to the matter sought would subject the defendant to pains^ penalties, forfeitures or punishment, or if it would probably subject him to pains, penalties, forfeitures or punishment ; '* or if in conscience the defendant's right concerning the matter to which the discovery sought relates is equal to that of the- plaintiff ; '^ or an answer to the bill would violate professional confidence ; ^^ or the discovery in aid of an action at law is not material to the trial of the issue at law ; *^ or the matter called for relates to the defendant's title and not the plaiu- tiff's;** or it may be prejudicial to the rights of a third party who has an interest in the discovery ;*' or it might be injurious to public iuterest^" — a demurrer in each of these cases will lie to the bill. A demurrer will also lie to a bill of discovery when it is deficient in any of the essential alle- gations ^^ required in such a bill.'^ § 332. In cases of amended and supplemental bills. It is said that a demurrer will lie to an amended or supple- mental bill when the amendment or supplement introduces a new cause into the bill.^' But if an original bill has been de- murred to, and it is afterwards amended, and the demurrer is not again interposed to the bill as amended, the demurrer to such original bill will be treated as abandoned.'* 84 Northwestern Bank v. Nelson, »o 1 Dan., Ch. Pr. (4th Am. Ed.),. 1 Gratt. (Va.) 108; Poindexter v. 581. Davis, 6 Gratt. (Va.) 481. " Anie, §§ 178-182. 85 1 Bart., Ch. Pr. (2nd Ed.), 375. B2 6 Ene. Pi. and Pr., 777-779. 86 Parker v. Carter, 4 Munf.(Va.) ss 1 Bart., Ch. Pr. (2nd Ed.), 379. 273, 6 Am. Dec. 513; Crosb}' v. Ber- As to what amendments are per- ger, n Paige Ch. (N. Y.) 377, 3 missible uide post, §§ 347-355. Law. Ed. 375, 42 Am. Dec. 117. 84 Browne v. Mobile, 122 Ala. 159,. 87 Seymour v. Seymour, 4 .Johns. 25 So. 223: Davis v. Marshall, 114 Ch. (N. Y.) 409, 1 Law. Ed. 885; Va. 193, 76 S. E. 316, Ann. Cas. Pryor v. Adams, 1 Call (Va.) 382. 1914B, 1025. Error in overruling a 88 6 Enc. PI. and Pr., 778. demurrer may be cured by subse- 8» 1 Dan., Ch. Pr. (4th Am. Ed.), quent amendniont. Smith v. Lin- 681, den Oil Co., G!) W. .Va. 57, 71 S. E. 167. 407 The Dbmureeh § 333 § 333. Demurrer in miscellaneous cases. A demurrer will lie where it is apparent from the face of the bill that there is another suit pending for the same subject matter in which the plaintiff may obtain the same relief as by the bill demurred to ; '^ or where the bill seeks nothing fur- ther than the enforcement of a legal demand,^^ unless it be in a suit upon attachment ; ''' or where the bill does not show any substantial right of recovery ; '^ or where a bill is filed after the lapse of twenty years from the accrual of the cause of action, thus creating the presumption of the payment of such a stale demand, and no facts or circumstances sufScient to rebut such presumption are stated in the bill ; ^' or where the bill seeks to enjoin enforcement of a judgment rendered in the name of a plaintiff after his death, the proper remedy in such a ease being by writ of error coram nohis in the original ac- tion;^"" or where proof to sustain the allegations of the biU would be inadmissible ; ^"^ or where the bill shows on its face, in a suit by a creditor, that he had knowledge of the decree for an account in a creditors' suit in another or the same court, against the same parties ; ^"^ or where the plaintiff has not complied with a condition precedent to the right to sue.^"' 95 1 Dan., Ch. Pr. (4th Am. Ed.), son v. Davidson, 70 W. Va. 203, 73 561. When the pendency of another S. E. 715; Roberts v. Gruber, 74 W. suit does not appear on the face of Va. 550, 82 S. E. 367 ; Norfolk & W. the bill, it must be raised by plea E. Co. v. Obenchain, 107 Va. 596, 59 or motion to dismiss. Anderson v. S. E. 604. Piercy, 20 W. Va. 282, 321-2 ; 1 Ene. 9° Jarvis v. Martin, 45 W. Va. PI. and Pr., 773. 347, 31 S. E. 957. See Hogg v. 96 Hoke V. Davis, 33 W. Va. 485, Shields, 114 Va. 403, 76 S. E. 934. 10 S. E. 820; Van Dorn v. Lewis loo Williamson v. Applebury, 1 Co. Ct., 38 W. Va. 267, 18 S. E. Hen. and Munf. (Va.) 206. 579 ; Surber v. McClintic, 10 W. Va. "i Towner v. Lucas, 13 Gratt. 236; Ewing v. Litchfield, 91 Va. (Va.) 705. 575, 22 S. E. 362. See ante, § 323 102 Saunders v. Grigg, 81 Va. 506; and cases cited. Kent w Cloyd, 30 Gratt. (Va.) 555. 07 Ante, § 120. i»3 Fidelity & Deposit Co. v. Gill, 98 Shuttleworth v. Shuttlewortb, 110 Va. 86, 81 S. E. 39. 34 W. Va. 17, 11 S. E. 714; David- § 335 Equity Procedure 408 § 334. Illustrative instances of the disallowance of a demurrer. A demurrer to a bill will not be sustained, though it contain many vague and irrelevant allegations, if, taken as a whole, it states facts entitling the plaintiff to relief ; ^"^ nor will a gen- eral demurrer be sustained when the bill sets forth various claims, if any of the claims be proper for the jurisdiction of a court of equity;*"^ nor will a demurrer be sustained where the bill alleges that a defendant, who is in possession of personal property claimed by the plaintiff under a contract with the defendant, is insolvent and is fraudulently converting the prop- erty to his own use and asks to enjoin the defendant and for an accounting.!"* § 335. The issue upon a demurrer. Since the statute in Virginia ^"^ and West Virginia !"' pre- scribes that a joinder in demurrer shall be that the bill is suf- ficient in law,*"' there would seem to be a necessary implication that there should be a joinder in demurrer; but such joinder it seems is not necessary. It is provided by statute ^^^ that "when the plaintiff takes issue on the defendant's pleading, or traverses the same, or demurs, so that the defendant is not let in to allege any new matter, the plaintiff may proceed as if there were a similiter or joinder in demurrer." This statute, it seems clear, dispenses with the necessity of any joinder in a plaintiff's demurrer, whether at law or in chancery. On 10* Moore v. Harper, 27 W. Va. "^ Va. Code, 1004, §3271. 362; Miller v. Hare, 43 W. Va. 647, los W. Va. Code, 1913, c. 125, § 28. 28 S. E. 722; Allen v. South Penn 109 Tlje statute does not use the Coal Co., 58 W. Va. 197, 211, 52 S. word "bill," but as this law is con- E. 454. strued to apply to bills in equity, so iD^ Castleman v. Veitch, 3 Rand. far as the form of the demurrer is (Va.) 598; Gay v. Skeen, 36 W. Va. concerned, Jones v. Clarke, 25 588, 15 S. E. 64; Eakin v. Hawkins, Gratt. (Va.) 642: Matthews v. Jen- 48 W. Va. 364, 37 S. E. 622. See kins, 80 Va. 463, the joinder must additional cases cited in note 26, necessarily so apply. supra. now. Va. Code, 1913, c. 125, looBrakeley v. Tuttle, 3 W. Va. §25; Va. Code, 1904, §3268. 86. 409 The Demuerer § 336 general principles, it seems that the filing of the demurrer suf- ficiently raises an issue as to the sufficiency of the bill, and no joinder in the demurrer is necessary.'" Holt, J., in Hays v. Heatherly,"2 says that, after a demurrer to a bill has been overruled and a day given in which to answer the bill and, instead of answering it, the defendant demurs a second time to the bill, the error is waived by the plaintiff by his joinder in such second demurrer. But this does not argue the necessity of such joinder to enable the court to dispose of the demurrer. § 336. Scope of the hearing on demurrer. It has been said that at the hearing on demurrer the court will consider only the bill and the exhibits filed therewith.^*' This assertion, while true under ordinary circumstances, is too narrow for general application. A more accurate statement is that the court will consider the entire record as it is consti- tuted at the time when the demurrer is interposed. Hence, in proper cases, the summons, which is a part of the record, will be read with the bill and the exhibits."* But the demurrer itself cannot introduce matters of fact into the record, either in its own allegations "^ or by way of an exhibit filed with the demurrer."^ We have already seen that the allegations of the bill will be interpreted in the light of the exhibits. ^'^ Like- wise, one exhibit will be aided in the purpose for which it is filed by reference to another exhibit."^ In other words, the bill and all the exhibits will be read together."' 111 See what is said in § 337. v. C. & 0. R. Co., 116 Va. 166, 81 112 36 W. Va. 613, 15 S. E. 223. S. E. 108. Of course it is usual and proper to n'' Ante, § 317. join in the demurrer. us A description in a contract 113 Loar V. Wilfong, 63 W. Va. filed as an exhibit with the bill will 306, 61 S. E. 333. be aided by a survey filed as a sepa- 114 Wildasin v. Long, 74 W. Va. rate exliibit. Loar v. Wilfong, 63 583, 82 S. E. 205. ■ W. Va. 306, 61 S. E. 333. 115 Harris v. Thomas, 1 Hen. and ns/rfem; Grant v. Cumberland M. (Va.) 17. Valley Cement Co., 58 W. Va. 162, 118 Old Dominion Iron & N. Co. 52 S. E. 36. § 338 Equity Procedure 410 § 337. When a demurrer will be treated as having been over- ruled. If the record recites that a demurrer has been filed, as we have seen,'^" this is sutifieient to answer the purpose of the law; and if a demurrer has actually been filed, and the court dis- poses of the case or renders a decree, and no notice is taken of the disposition of the demurrer, it will be treated as having been thus overruled by the court ; ^^^ so that this implied ruling of the court will be treated as if predicated upon its formal action upon the demurrer."^ § 338. What the court should do upon overruling a demurrer. When the court overrules a demurrer to the bill, there must be, in West Virginia, a rule upon the defendant to answer the bill, before any decree can be taken affording the plaintiff relief against him,'^^ unless such rule be waived. ^^^ The rule should fix a day within or on which the answer should be filed,*^' and if no day upon which to answer the bill be speci- fied in the order awarding the rule, no decree on the merits can be entered on a subsequent day of the term, if no answer has been filed.*^* If the time fixed by the court on which the 120 Ante, § 318. Deckert v. Chesapeake, etc., Co., 101 121 Matthews v. Jenkins, 80 Va. Va. 804, 4;-) S. E. 799. 463; Hinchman v. Ballard, 7 W. Va. 122 See same citations. 171; Fluharty v. Mills, 49 W. Va. ,23 Nichols v Heirs of Nichols 8 446, 38 S. E. 521; Smith v. Profitt, JMcnois v. neirs ot Aichols, s 82 Va. 832; Fugate v. Moore, 86 W. Va. 174; Billingslea v. Manear, Va. 1045, 11 S. E. 1063; Miller v. 47 W. Va. 785, 35 S. E. 847. Miller, 92 Va. 196, 23 S. E. 232; 121 Mitchell v. Evans, 29 W. Va. Miller v. Black Rock Springs Imp. ^„„ o c: v sa Co., 99 Va. 747, 40 S. E. 27; East *"''' - ^- ^- ***' V. Hyde, 112 Va. 92, 70 S. E. 508, ^s'' Pecks v. Chambers, 8 W. Va. and cases cited; McGraw v. Traders' 210. Nat. Bank, 64 W. Va. 509, 63 S. E. 126 Moore v. Smith 26 W. Va. 398; Cooper v. Cooper, 65 W. Va. „_„ t,.,,. ," , ' "„ _(,' 712, 64 S. E. 927; Sizemore v. Lam- ^^^' B'H'ngslea v. Manear, 47 W. bert, 78 W. Va. 243, 88 S. E. 839: Va. 785, 35 S. E. 847, and cases Butts V. Sun Lumber Co., 82 W. Va. cited, holding that an order of refer- 113, 95 S. E. 585; Roberta v. Hunt- ence is improper. But see Foley v. ington Development & Gas Co., So -^ , .„ ' , ' , -,„„-„ -r, r.oc W Va. 484, 102 S. E. 93. But ^"'"^y- ^^ W. Va. 513, 27 S. E. 268, the court may reserve the demurrer where an order of reference was for future consideration and pro- held proper where defendant had ceed upon the merits of the case. (^een given a day to answer. 411 The Demurrer §338 answer is to be filed is insufficient to enable the demurrant to prepare and file his answer, the fact should be brought to the court's attention by motion or petition to extend the rule, supported by affidavit, giving the reasons therefor,"' else the action of the court fixing the time for filing the answer can not be reviewed on appeal. ^^* The rule to answer need not be served upon the defendant.^^' In Viriginia a rule to answer upon overruling a demurrer does not seem to obtain, so far as to make it essential to the 127 Weinberg v. Rempe, 15 W. Va. 829; Maxwell v. Burbridge, 44 W. Va. 248, 254, 28 S. E. 702. 128 Weinberg v. Rempe, 15 W. Va. 829. 129 Hays V. Heatherly, 36 W. Va. 613, 15 S. E. 223; Billingslea v. Manear, 47 W. Va. 785, 35 S. E. 847. "On the overruling of the demur- rer to the bill, the court immedi- ately entered a decree directing an order of reference in relation to the assets and liabilities of the estate of the decedent, adjudging that the widow was entitled to dower in the land, and appointing commissioners to go upon the land and lay off tlie dower. Thus merits of the suit were passed upon. Appellant says it was error to decree without ruling him as defendant to answer pursuant to Code, 1906, c. 125, § 30. Under our decisions, this point is well taken. 1 Enc. Dig. Va. & W. Va. 393-396; Hogg, Eq. Proc, § 314. It is estab- lished in this state that when the court overrules a demurrer to a bill, if the defendant does not answer or waive his right to do so, there must be a rule on him to answer the bill before any decree affording the plaintiff relief can be taken against the defendant, and that it is rever- sible error to decree without such rule. Yet the rule need not be served, and amounts only to an or- der that the defendant answer with- in a certain time, which may be regulated according to the circum- stances of the particular case. So the statute has long been Inter- preted. From our examination into the origin and history of this stat- ute we doubt whether it has always been rightly understood and inter- preted. It would seem that it should not apply in favor of a de- fendant who, as appellant here, is in default by a bill taken for confessed against him at rules. Brent v. Washington's Admr., 18 Gratt. 526; Reynolds v. Bank, 6 Gratt. 174. Such a defendant has already neg- lected a rule to plead. Why should another be given him? But no dis- tinction lias ever been made in our eases. Tiny apply tlie statute to any defendant, wliether one in de- fault or not. Tliis statute as long construed gives a defendant a rule to answer on the overruling of his demurrer whether, in view of Code, 1906, c. 125, § 53, it will avail him or not. McLaughlin v. Sayers, 78 S. E. 355. Is not tliis a matter for legislative notice? See Virginia Code, 1904, § 3273." Robinson, J., in Ross' Admr. v. Ross, 72 W. Va. 640, 78 S. E. 789. [15] § 339 Equity Proceddee 412 entry of a decree, but the court can not deprive the defendant of his absolute right to file his answer at any time before a final decree, and should generally give him time to prepare and file his answer.i^o But the trial of the cause is not to be de- layed simply to enable the defendant to file his answer, with- out showing good cause therefor.^'i And when a demurrer is overruled, the defendant may, at the discretion of the court, be required to answer the bill forthwith, and in default thereof, the bill may be taken for confessed, and the matter thereof de- creed; or the plaintiff may have an attachment against such defendant, or an order for him to be brought in to answer interrogatories."^ When a demurrer has been filed to a bill and overruled, there can not properly be any other demurrer filed to such bill.^^' § 339. When a demurrer may be filed. Inasmuch as a defendant may demur to a bill and answer it at the same time,^'* and may answer at any time before final decree, 1'^ it follows that a demurrer may be entered at any time before final decree.^^^ If, however, an answer has been filed it is generally too late to demur,^" unless the answer is withdrawn by leave of the court to enable the defendant to demur,^^^ and it is within the discretion of the court to allow the defendant to withdraw his answer and demur to the bill, if there has been no unreasonable delay in making the motion for leave to withdraw the answer.^'' 130 Reynolds v. The Bank of Vir- is* Bassett v. Cunningham, ginia, 6 Gratt. (Va.) 174; North- Leigh. (Va.) 402. western Bank v. Nelson, 1 Gratt. i35 Post, § 445. (Va.) 108; Brent v. Washington, 18 "o Rossett v. Greer, 3 W. Va. 1; Gratt. (Va.) 526; Sutton v. Gate- Stephenson v. Burdett, 56 W. Va. wood, 6 Munf. (Va.) 398; Elder v. 109, 122, 48 S. E. 846, 10 L. R. A. Harris, 76 Va. 187. (X.R.) 748. 1311 Bart., Ch. Pr. {2nd Ed.). i" 6 Enc. PI. and Pr., 424. See 405. Steplienson v. Burdett, 56 W. Va. 132 Idem, 404. 109, 122, 48 S. E. 846, 10 L. R. A. 133 W. Va. Code, 1913, c. 125, (N.S.) 748, where a demurrer was §30; Va. Code, 1904, §3273; Hays filed after an answer. V. Heatherly, 36 W. Va. 613, 15 S. iss 6 Enc. PI. and Pr., 424. E. 223 ; 4 Ency. Dig. Va. & W. Va. iss Weisiger v. Richmond Ice Rep. 506, and eases cited. Mach. Co., 90 Va. 795, 20 S. E. 361. 413 The Demurrer § 341 § 340. What to be done upon sustaining a demurrer. If a demurrer to a bill is sustained and it appears to the court that the defect reached by the demurrer can be remedied by amendment, the court ought not to dismiss the bill, but should give the plaintiff leave to amend his bill,^*° and this is the usual and proper course. ^*^ If a demurrer to the whole bill is sustained and the bill is not susceptible of amendment, the ease is thereby ended ; ^" and "when the demurrer is sustained as to one or more defend- ants, or against one or more plaintiffs, their names will be stricken from the record, and the case will be dismissed as to them.""' § 341. To what pleadings a demurrer may not be filed. That a bill has not been regularly filed or that it is illegible, can not be raised on demurrer, but only by motion to strike from the docket or files; ^** nor that a bill contains surplusage, irrelevant, scandalous or impertinent matter, as these objec- tions must be availed of by way of exceptions to the bill.**^ And a demurrer to an answer is not recognized in chancery 140 Kexroad v. Wells, 13 W. Va. bill. If lie fails to amend, the cir- at p. 820; Blue v. Campbell, 57 W. cuit court will dismiss the bill." Va. 34, 49 S. E. 909; Kelley v. Houston v. MeCluney, 8 W. Va. 136. Thompson, 106 S. E. 230 (W. Va. i" Jameson v. Deshields, 3 Gratt. 1921). (Va.) 5; Stewart v. Jackson, 8 W. "When the name of a plaintiff in Va. 31; Blue v. Campbell, 57 W. a suit in equity is not stated in the Va. 34, 49 S. E. 909. See post, c. bill, as required by tiie chancery IS. practice before the Code of this ^*i Idem : 1 Bart., Ch. Pr. (2nd. state took effect, or as authorized Ed.), 380. by the Code, and the defendant de- i^;; j 5^^., Ch. Pr. (2nd Ed.), murs and answers, and the court, without other action on the demur- ^' rer, decrees in favor of the plaintiff, i" Orvie v. Cole, 14 IH. App. 283; this court reverses the decree. But Downer v. Staines, 4 Wis. 372. when the plaintiff by the allega- ,,, p^^ r Co. of Mo. v. Mo. Pac. tions and proof, shows that he is „ ^ m tt c <:on , t^ /^t, entitled to relief, this court remands ^- ^°-' ^^^ ^- ^- ^^2; 1 Dan., Ch. the cause to the circuit court with Pr., 401; Lewis v. Cregor, 73 W. leave to the plaintiff to amend his Va. 564, 80 S. E. 967. § 342 Equity Procedure 414 praetiee.i^^ Neither can a demurrer be filed to a plea in chan- cery,"' as may be done at law. The proper mode of testing the sufficiency of a plea in equity practice is to set it down for argument/*' which may be done by motion or petition ; ^^' or, in pursuance of the statute, to move to reject it or to strike it from the record, which is prac- tically the same thing.^^" But if the plaintiff demurs to the plea instead of setting it down for argument, the demurrer will be regarded as the equiv- alent of the proper course and, while this is an irregularity, it will be regarded as one of form.*^* While a demurrer to an answer intended to be mainly respon- sive to the bill is not proper, if the answer be in the nature of a cross-bill setting up a claim to affirmative relief, the suffi- ciency of the part i;elating to affirmative relief may be tested by demurrer,^^^ as the rules governing, such an answer are practi- cally the same as those which apply to an ordinary cross- bill.'^^ § 342. Effect of dismissing bill on demurrer. When a bill is dismissed upon a demurrer filed to it, the decree of dismissal is conclusive of every matter pertaining to the subject matter of the suit, whether specially stated in the bill or not, if it be clear that such matter was necessarily in controversy in the suit and was decided in it, but otherwise not.''^* And this is so, though there be several defendants to 146 Copeland v. McCue, 5 W. Va. i-'2 Rust v. Rust, 17 W. Va. 901. 264; Lawrence v. Montgomery Gas Tliat a demurrer will lie to u eross- Co., 84 W. Va. 382, 99 S. E. 496. bill, and as to the grounds of such 1« Barrett v. McAllister, 35 W. demurrer, see ante, § 220. Va. at p. 115. 1S3W. Va. Code, 1913, c. 125, 148 16 Enc. PI. and Pr., 618. | 57, MeMullen v. Eagen, 21 W. Va. 149 Idem, 618, note 3, and authori- 233. ties cited. 154 Poole v. Dilworth, 26 W. Va. 150 W. Va. Code, 1913, c. 125, § 56. 553. Harrison v. Wallton, 95 Va. 151 16 Enc. PI. and Pr., 619; 721^ 30 s. E. 372, 41 L. R. A. 7031 Southerland v. People's Bank, 111 ^4 ^m. St. Rep. 830; State v. Mc- Va. 515, 69 S. E. 341. Eldowney, 54 W. Va. 695, 47 S. E. 415 The Demurrer §342 the bill, and the demurrer be filed by one of them,^'--' where the defense raised by the demurrer is not personal to the demur- rant.^" 650; Dent v. Pickens, 59 W. Va. 274, 53 S. E. 154; Hudson v. Iguano Land & Mining Co., 71 W. Va. 402, 76 S. E. 797. But the plaintiff's rights are not concluded when the bill is dismissed on mere jurisdic- tional grounds, Laing v. Price, 75 W. Va. 192, 83 S. E. 497; nor where it is dismissed because of defective allegations which are corrected or supplied in the second suit, Davis Colliery Co. v. Westfall, 78 W. Va. 735, 741, 90 S. E. 328. As to failure to reserve right to sue at law, see Carberry v. W. Va. & P. R. Co., 44 W. Va. 200, 28 S. E. 694: Peterson V. Smitli, 75 W. Va. 553, 84 S. E. 250. For numerous additional cases on the general subject of res judicata, see the title "Former Adjudication," etc., Ency. Dig, Va. & VV. Va. Rep. and supplements. 155 Harrison v. Wallton, 95 Va. 721, 30 S. E. 372, 41 L. R. A. 703, 64 Am. St. Rep. 830; Brown v. Cornwell, 108 Va. 129, 60 S. E. 623. 156 Idem. CHAPTER XVIII AMENDMENT § 343. Definition of amendment. § 344. When an amendment may be made. S 345. Discretion of the court as to amending the bill. § 346. At what stage of the cause a bill may be amended. S 347. The extent to which the bill may be amended. § 348. Amendments of the bill as to parties. § 349. Amendment of tlie bill as to its prayer for relief. § 350. Amendment of the bill as to its statement of facts. § 351. When the court will not permit the bill to be amended. § 352. Illustrations showing an infraction of the rule forbidding the intro- duction of a new cause of suit under the guise of an amendment. § 353. Illustrations showing no departure from the rule forbidding the in- troduction of a new cause of suit under the guise of an amendment. § 354. As to amending a sworn bill. §355. As to amending an injunction bill. § 356. Efl'ect upon the injunction of aii amendment to the bill. g 3.17. As to filing an amended bill in the clerk's office in the vacation of tlie court. I 358. How leave to amend may be obtained. § 359. The manner in which a bill should be amended. § 360. How objection to an amendment may be made. §361. As to when an amendment to a bill takes effect. § 362. When process should be issued on an amended bill. § 363. Effect of an amendment to the bill upon the right of continuance. § 364. Laches in asking leave to amend. § 365. As to the rights of the defendant to plead anew after the bill has been amended. § 366. Plight of defendant to amend his plea. § 367. Right of defendant to amend his answer. § 368. Illustrations of defendant's right to amend his answer. § 36!). Illustrations of the court's refusal to permit the answer to be amended. § 370. How the application to amend an answer may be made. § 371. How amendments to an answer made. § 372. The amendment of replications. § 373. The right to amend a decree. § 374. Amendment of the decree because of clerical errors therein. § 375. As to the amendment of a consent-decree. 416 417 Amendment §344 § 343. Definition of amendment. The primary meaning of the word "amend," according to the lexicographers/ is to make better, or to change from bad to the better, and in a legal sense the word amendment denotes the correction of an error in any process, pleading or proceed- ing, at law or in equity/ § 344. When an amendment may be made. It is provided by statute in Virginia and West Virginia,^ that the plaintiff may, of right, amend his bill before the de- fendant's appearance,* and such an amendment may be made by common order.^ After the defendant has appeared, the bill may be amended by leave of court," if substantial justice will be promoted by the proposed amendment.' If a demur- rer is sustained to a bill which is merely defective in its alle- gations, it is error to refuse leave to amend, where cause for relief can be shown by any proper amendment of the bill.^ ' Webster, Diet. ; Worcester, Diet. ; Johnson, Diet. 2 Black, Law. Diet., 66, citing 3 Bl. Com. 407, 448: 1 Tidd. Pr. 696. "Va. Code, 1904, §32.53; W. Va. Code, 1913, c. 123, § 12. ^-BiH A. Schilling, 39 W. Va. 108, 19 S. E. 514; Law v. Law, 5;5 W. Va. 4, 12, 46 S. E. 697. .1 Holland \. Trotter, 22 Gratt. (Va.) 139. 6 Holland v . Trotter, 22 Gratt. (Va.) 139. ' It is expressly provided by stat- ute in West Virginia that, after ap- pearance by tlie defendant, substan- tial justice must be promoted by the proposed amendment. W. Va. Code, 1913, c. 125, § 12. But this is only an iteration of a cardinal principle or doctrine o' equity practice. Wel- ton V. Hutton, 9 W. Va. 339; Shonk V. Kniglit, 12 W. Va. 667; Mitchell V. Chancellor, 14 W. Va. 22; 1 Dan., Ch. Pr., 409, et seq.; Hall v. Fisher, 3 Barb. Ch. (N. Y.) 637, 5 Law. Ed. 1039; Burlew v. Quarricr, 16 W. Va. lOS; Bill V. Scliilling, 39 W. Va. 108, 19 S. E. .514; Campbell v. Pow- ers, 139 111. 128, 28 N. E. 1062; 1 Dan., Ch. Pr. (4th Am. Ed.), 401, note 8; Blue v. Campbell, 57 W. Va. 34, 49 S. E. 909; Floyd v. Duffy, 68 W. Va. 339, 353, 69 S. E. 993, 33 L. R. A. (N.S.) 883; Johnson Milling Co. V. Read, 76 W. Va. 557, 85 S. E. 726. Whether substantial justice will be promoted must be deter- mined by the court in the exercise of its judicial discretion. Idem. See Dickinson v. Foster, 81 W. Va. 739, 95 S. E. 196, to the effect that leave to amend must be given whether asked or not. sNorris v. Lemen, 28 W. Va. 336; Lamb v. Cecil, 25 W. Va. 288; Mc- §345 Equity Procedure 418 And if an amendment is made without leave of court, and the cause has reached such a stage as to make it proper to obtain permission of the court to amend, it will be allowed to stand in a case where it would be error to refuse to permit an amend- ment to be filed.' § 345. Discretion of the court a.s to amending the bill. The right to amend after appearance is a matter resting in the sound discretion of the court,^" the judge of which must determine whether substantial justice will be promoted by the amendment.^-' If the right to amend has been denied, it must Kay V. McKay, 28 W. Va. 514; Morgan v. Morgan, 42 W. Va. 542, 26 S. E. 294; Blue v. Campbell, 57 W. Va. 34, 49 S. E. 909; Kelley v. Thompson, 106 S. E. 230 (W. Va. 1921). 9 Miller v. Perry, 38 Iowa 301. 10 Bill V. Schilling, 39 W. Va. 108, 19 S. E. 514; Belton v. Apperson, 26 Gratt. (Va.) 207; Western M. & M. Co. V. Va. Cannel Coal Co., 10 W. Va. 250; Ratliflf v. Sommers, 55 W. Va. 30, 46 S. E. 712; Blue v. Campbell, 57 W. Va. 34, 49 S. E. 909; Dudley v. Niswander, 65 W. Va. 461, 64 S. E. 745; Johnson, Mill- ing Co. V. Read, 76 W. Va. 557, 85 S. E. 726; Watson v. Brunner, 105 S. E. 97 (Va. 1920). 11 See same citations. We have nowhere seen a better statement of tlie practice in equity with respect to tlie amendment of pleadings tlian is to be found in the opinion of Mr. Justice Harlan in Hardin v. Bovd, 113 U. S. 7.56, 5 Sup. Ct. 771, 28 Law. Ed. 1141: "In reference to amendments of equity pleadings, the courts have found it impracticable to lay down a rule that would govern in all cases. Their allowance must, at every stage of the cause, rest in the dis- cretion of the court; and that dis- cretion must depend largely on the special circumstances of each case. It may be said, generally, that, in passing upon an application to amend, tlie ends of justice should never be sacrificed to mere form, or by too rigid adherence to technical rules of practice. Undoubtedly great caution should be exercised where the application comes after the liti- gation has continued for some time, or when the granting of it would cause serious iitconvcnience or ex- pense to the opposite side. And an amendment should rarely, if ever, be permitted where it would mate- rially change tlie very substance of the case made by the bill, and to which tlie parties have directed their proofs.'' See also Western M. & M. Co. v. Va. Cannel Coal Co., 10 W. Va. 250; Rati iff v. Sommers, 55 W. Va. 30, 46 S. E. 712: Glenn v. Brown, 99 Va. 322, 38 S. E. 189, in winch the language of Justice Harlan is quoted and approved. Amendments which tend to pro- mote substantial justice are favored. Cumniings v. Ilamrick, 74 W. Va. 40(i, 82 3. E. 44. But 'he '. Shannon. 114 111. 192, is as follows: 'Tlie decree will be re- versed, and the cause remanded for further proceedings consistent with this opinion.' The only proceeding wliicli was consistent with that opin- ion was to enjoin the doing of ir- reparable injury iintil the question of title could be tried and deter- mined in a court of law. Where a certain mode of proceeding is marked out in the opinion, and the direction to proceed consistently therewitli, any otlier mode of pro- ceeding is e.\eliided. Hook v. Riche- son, 115 111. 431, 5 N. E. 98; Gage V. Bailey, 11!) 111. 539, 9 N. E. 199." Parker v. Shannon, 121 III. 452, 13 N. E. 155. But where the supreme court of appeals sustains a demurrer which had been overruled in the lower court and tlie cause is remanded "to be heard and finally determined ac- cording to the rules and principles 421 Amendme^tt §347 any time before final decree, if, in the sound discretion of the court, the ends of justice demand it.^^ § 347. The extent to v,hich the bill may be amended. If the bill be defective as to the proper or necessary parties,''^ or in its prayer for relief,-'' or in the statement of some fact or circumstance connected with the substance of the bill,^* but not of equity," it is error for the lower court to refuse leave to file an amended bill. Blue v. Campbell, 57 W. Va. 34, 4!) S. E. 90n. 21 Puterbaugh, Cli. PI. and Pr. (3rd Ed.), 197. The time when the amendment may be made is con- trolled by the discretion of the court. Dudley v. Niswander, 65 W. Va. 461, 466., 64 S. E. 745. "A bill for specific performance of a contract for the conveyance of land may be amended, by correcting the description of the land, after the cause has been submitted for final hearing." Rhea v. Puryear, 26 Ark. 344. But a more strict rule is ap- plied when leave to amend is not asked until after submission of the cause. Floyd v. Duffy, 68 W. Va. 339, 354, 69 S. E. 993, 33 L. R. A. (N.S.) 883. See ante, note 11, and citations. As to the necessity for asking leave to amend, see Kelley v. Thompson, 106 S. E. 230 ( W. Va. 1921). 22 Holland v. Trotter, 22 Gratt. (Va.) 136; Mosby v. Withers, 80 Va. 82; Jameson v. Deshields, 3 Gratt. (Va.) 4, 13; Stephenson v. Tavenners, 9 Gratt. (Va.) 398; Welton v. Button, 9 W. Va. 339; Mitchell v. Chancellor, 14 W. Va. 22; Burlew v. Quarrier, 16 W. Va. 108; McKav v. McKay, 28 W. Va. 514; Ratliff v. Sommers, 55 W. Va. 30, 46 S. E, 712; Rexroad v. Raines, 63 W. Va. 511, 60 S. E 495^ Lovett v. Eastern Oil Co., 68 W. Va. 667, 70 S. E. 707, Am. Ann. Cas. 1912B 360; Bragg v. United Thaok- er Coal Co., 70 W. Va. 655, 74 S. B. 946; Tomblin v. Peck, 73 W. Va. 336, 80 S. E. 450. New parties can be introduced only by amendment of the bill. Gall v. Gall, 50 W. Va. 523, 40 S. E. 380; Freeman v. Eg- nor, 72 W. Va. 830, 79 S. E. 824; Johnson Milling Co. v. Read, 76 W. Va. 557, 85 S. E. 726. See 'post, §348. 23 Belton V. Apperson, 26 Gratt. (Va.) 207; Parrill v. McKinley, 9 Gratt. (Va.) 1, 58 Am. Dec. 212. See post, § 349. 2* Belton V. Apperson, 26 Gratt. (Va.) 207; Baker v. Baker, 3 Munf. (Va.) 222; Welton v. Button, 9 W. Va. 339; Shonk v. Knight, 12 W. Va. 667; Burlew v. Quarrier, 16 W. Va. 108; Hall v. McGregor, 65 W. Va. 74, 64 S. E. 736; Bland v. Rigby, 73 W. Va. 61, 79 S. E. 1013i; Kelly V. Gwatkin, 108 Va. 6, 60 S. E. 749. If a bill in chancery sets out sev- eral claims for equitable relief, some of which are inequitable, and others deficient for want of sufficient alle- gations, on demurrer thereto the bill should be dismissed as to the inequitable claims, and allowed to be amended as to such as are ap- parently equitable, but defectively stated. Morgan v. Morgan, 42 W. Va. 542, 26 S. E. 294. § 347 Equity Procedure 422 essential to the identity of the substance, or it becomes necessary to put in issue new matter to meet allegations in the answer,^' or to explain or avoid the effect of matters set up by way of defense in a plea or answer,'" an amendment, if not always, is usually permitted. ^^ So where suit has been prematurely brought on an inchoate right which matures into perfect cause of action pend- ing the suit, the bill may be amended so as to bring to the court's attention the plaintiff's completed right.^* But while great lib- erality has been manifested by the courts in modern times in permitting amendments to pleadings,^^ there is complete una- nimity of opinion that no amendment can be made to a bill so as to make an entirely new cause of action.'" Nor will the courts permit an amendment which would render the bill demurrable if the proposed amendment should be made.'^ Nor will the court permit an amendment where the record does not disclose that any amendment improving the bill may be made;^^ as, for in- stance, when the bill shows a case wherein there can be no relief to a guilty plaintiff because it is based on or grows out of a 25 Pettyjolm v. Burson, 2 Va. Dec. =8 Totten v. Niglibert, 41 W. Va. 167, 22 S. E. 508, citing Shields v. 800, 24 S. E. 627. Burrows, 17 How. (U.S.) 130. See 29 Hurt v. Jones, 75 Va. 341; also Jolmson v. Johnson, 5 Ala. 90; Campbell v. Powers, 139 111. 128, 28 Furnian v. Nortli, 4 Baxter (Tenn.) N. E. 1062: Cummings v. Hamrick, 296; Ward v. Ward's Heirs, 50 W. 74 W. Va. 406, 82 S. E. 44. Va. 517, 40 S. E. 472; Branner v. so Hurt v. Jones, 75 Va. 341; Branner's Admr., 108 Va. 660, 62 S. Pettyjohn v. Burson, 2 Va. Dec. 167, E. 932; 1 Eney. Dig. Va. & W. Va. 22 S. E. 508; Christian v. Vance, 41 Eep. 322 and cases cited. W. Va. 754, 24 S. E. 596; Edgell v. 20 Idem; Jolly v. Carter, 2 Edw. Smith, 50 W. Va. 349, 40 S. E. 402. Ch. (N. Y.) 209, 6 Law Ed. 372; See post, §351 and numerous addi- Whitney v. Belden, 1 Edw. Ch. (X. tional cases cited. Y.) 386, 6 Law. Ed. 182; Johnson si Linn v. Patton, 10 W. Va. 187; T. Johnson, 5 Ala. 90; Brooks v. Shaffer v. Fctty, 30 W. Va. 248, 4 Spann, 63 Miss. 198; Munch V. Sha- S. E. 278; Curtis v. Leavitt, 11 bel, 37 Mich. 166; Holland v. Trot- Paige Ch. (X. Y.) 386, 5 Law. Ed. ter, 22 Gratt. (Va.) 136; Horn v. 172. Clements, 8 Atl. (N. J.) 530. 32 pjckens v. Kniseley, 36 W. Va. 2T Holland v. Trotter, 22 Gratt. 794, 15 S. E. 997; P-irber v. Me- (Va.) 136. Clintic, 10 W. Va. 236; Rexroad v. Wells, 13 W. Va. at p. 820. 423 Amendment § 348 conveyance fraudulent as to creditors.^^ Nor will an amendment be granted as to facts and circumstances known to the plaintiff at the time of filing the original bill, unless some good excuse be offered therefor; but the courts manifest great liberality in the acceptance of excuses as sufficient in m^atters of this sort.^* Nor will an amendment be permitted where the court has no juris- diction of the parties or subject matter of the suit at the time of the bringing of the suit.^' In Virginia, where the defendant is required to answer under oath unless the oath be waived in the bill, if an original bill does not waive respondent's oath to the answer, and his answer under oath is filed, the plaintiff can not deprive the respondent of the benefit of his sworn answer by filing an amended bill waiving such oath.^" And inasmuch as new matter occurring since the filing of the original bill may be introduced into the suit in the Virginias '' by way of amendment or amended bill,'^ it can be laid down as a rule that when matters arise since the bring- ing of the suit, material to a full determination of the rights of the parties, they may be brought into the cause by way of amend- ment to the bill.^° § 348. Amendments of the bill as to parties. The practice in a court of equity as to allowing amend- ments as to the parties to a bill is very liberal, and permits the 33 Edgell V. Smith, 50 W. Va. 349, 37 Ante, § 188. 40 S. E. 402. 38 In many jurisdictions yet, facts Nor will an amendment be per- arising since the institution of the mitted when the original bill shows suit can not be introduced by way that the plaintiff has no right of of amendment, but only by supple- action. Keyser v. Renner, 87 Va. mental bill. Bannon v. Comegys, 69 249, 12 S. E. 406. Md. 411, 16 Atl. 129; Killinger v. 34 1 B!. Dunn, 122 N. C. the rule applies mce versa. Rose- 103, 29 S. E. 54; 1 Stand. Proc. 905. 429 Amendment § 350 lege that the contract provided for the conveyance of a water right used on the land, as well as the conveyance of the land itself/* The defect of a misspelled name of a party defendant is cured by the service of process upon the proper party and by amending the bill by inserting in it the correct name, which will be allowed by the court.'' In a suit to enforce a mechanics' lien, the bill may be amended so as to withdraw a claim for ma- terials, and permit the plaintiff to rely on a claim for labor only.'° An amendment to a bill explaining complainant's delay and thus answering a charge of laches, upon which a demurrer to the original bill has been sustained, should be allowed.''' In some jurisdictions it is held that a bill which is multifarious may be so amended as to abandon those parts of it which render it mul- tifarious, thus removing the objectionable features of the bill; '* but the rule is clearly otherwise in West Virginia.''^ A bill may be amended so as to show that the plaintiff has performed a condition precedent to his right to relief, c g., that a tender has been made and kept good.^° And a bill which proceeds against an executrix to enforce a judgment against land of her testator may be so amended as to proceed against her in her personal capacity and seek satisfaction against her own realty.*^ The illustrations here given make it clear that the plaintiff will be permitted to amend his bill by adding anything to it which could have been properly incorporated into the original bill.*^ Hence, a bill will be dismissed for want of equity only 74Gelwicks v. Todd, 24 Colo. 494, 11 Gray (Mass.) 359, 71 Am. Doc. 52 Pac. 788. 715; 16 Cyc. 255. 75 Martin v. Martin. 95 Va. 26, 79 Cecil v. Karnes, 61 W. Va. 543, 27 S. E. 810. Likewise where an 56 S. E. 885; Harrison Co. Court infant is misnamed and a guardian v. Hope Nat. Gas Co., 80 W. Va. ad litem files an answer for the 486, 92 S. E. 726. infant. Tomblin v. Peck, 73 W. so Collins and Daugherty v. Sher- Va. 336, 80 S. E. 450. wood, 50 W. Va. 133, 40 S. E. 603; 76 Dodge V. Hall, 168 Mass. 435, Kelly v. Gwatkin, 108 Va. 6, 60 S. 47 N. E. 110. E. 749. 77 Lant V. Manley, 21 C. C. A. si Hall v. McGregor, 65 W. Va. 457, 75 Fed. 627; Bill v. Schilling, 74, 64 S. E. 736. 39 W. Va. 108, 19 S. E. 514. S2 Henderson v. Harness, 184 Jll. 78Harland v. Person, 93 Ala. 273, 520, 56 N. E. 786; Tennant v. Dun- 9 So. 379; Whitney v. Union R. Co., lop, 97 Va. 234, 33 S. E. 620. §351 Equity Procedure 430 when, admitting all the facts apparent on its face, whether well pleaded or not, no relief can be afforded the plaintiff by any- proper amendment which the theory of the case or the real basis of the suit will authorize.^' § 351. When the court will not permit the bill to be amended. As we have already stated,^* an amended bill must not intro- duce another and different cause of suit from that of the original bill.*^ The amendment proposed must not be a departure from the ground relied on for relief in the original bill,** nor incon- sistent with it.*' But this rule now under consideration has been so much intrenched upon in the different states of the Union, including Virginia and "West Virginia,** that it is not now susceptible of any very accurate definition.*' It is no trans- 83 Brown v. Mize, 119 Ala. 10, 24 So. 453; Lamb v. Cecil, 28 W. Va. 653; Blue v. Campbell, 57 W. Va. 34, 49 S. E. 909. 84 Ante, § 347. 85 Bird V. Stout, 40 W. Va. 43, 20 S. E. 852; Hurt v. Jones, 75 Va. 341; Belton v. Apperson, 26 Gratt. (Va.) 207; Sillingg v. Bum- gardner, 9 Gratt. (Va.) 273; Coff- man v. Sangston, 21 Gratt. (Va.) 263; Evving v. Ferguson, 33 Gratt. (Va.) '548; Shenandoah Val. R. Co. V. Griffith, 76 Va. 913; Hanby v. Henritze, 85 Va. 177, 7 S. E. 204; Piercy v. Beckett, 15 W. Va. 444; Burlew v. Quarrier, 16 W. Va. 108; Lamb v. Cecil, 28 W. Va. 653; Pickens v. Knisely, 29 W. Va. 1; Seborn v. Beckwith, 30 W. Va. 774, 5 S. E. 450; Christian v. Vance, 41 W. Va. 754, 24 S. E. 597; Edgell V. Smith, 50 W. Va. 349, 40 S. E. 402; Cox V. National Coal & Oil Investment Co., 61 W. Va. 291, 56 S. E. 494, 18 L. R. A. (N.S.) 1109, note; Hall v. McGregor, 65 \V. Va. 74, 64 S. E. 736; Newton v. Kem- per, 66 W. Va. 130, 66 S. E. 102; Floyd V. Duffy, 68 W. Va. 339, 69 S. E. 993, 33 L. R. A. (N.S.) 883; Ellis V. Whiteacre, 106 Va. 1, 54 S. E. 993; Huddleston v. Miller, 81 W. Va. 357, 94 S. E. 538; Watson V. Brunner, 105 S. E. 97 (Va. 1920). See Rees v. Emmoiis Coal Mining Co., quoted in the following note: 86 Bird V. Stout, 40 W. Va. 43, 20 S. E. 852; Shenandoah Val. R. Co. V. Griffith, 76 Va. 913; Piercy V. Beckett, 15 W. Va. 444; Floyd V. Duffy, 68 W. Va. 339, 69 S, E. 993, 33 L. R. A. (N.S.) 883. "The rule of equity pleading, in- hibiting departure from the subject of an original bill in an amended bill, does not forbid the introduc- tion by amendment of what are technically known as cases or causes of action different from that set up in the original bill, but it does pre- clude introduction of causes of ac- tion foreign to the subject-matter of the original bill, or the act, agree- ment, or transaction out of which it arose. Causes of action clearly ger- mane to the subject-matter of the original bill may be introduced or added by way of amendment." Rees V. Emmons Coal Mining Co., 106 S. E. 247 (W. Va.) 1921). 87 Bird V. Stout, 40 W. Va. 43, 20 S. E. 852; Straughan v. Hall- wood, 30 W. Va. 274, 4 S. E. 394, 8 Am. St. Rep. 29; Seborn v. Beck- with, 30 W. Va. 774, 5 S E. 450; Piercy v. Beckett, 15 W. Va. 444: Verplanek v. Mercantile Ins. Co., 1 Edw. Ch. (N. Y.) 46, 6 Law. Ed. 54; Hill V. Hill, 53 Vt. 578; Co.c V. National Coal & Oil Investment Co., 61 W. Va. 291, 56 S. E. 494, 18 L. R. A. (N.S.) 1109, note. 88 Burlew v. Quarrier, 16 W. Va. 108; Belton v. Apperson, 26 Gratt. (Va.) 207. But see Newton v, Kem- per, 66 W. Va. 130, 133, 66 S. E. 102, eriticisins; the liberality of the rule laid down in Belton v. Ap- person. 89 Belton V. Apperson, 26 Gratt. (Va.) 207. 431 Amendment § 352 gression of this rule to so alter the frame and structure of the bill as to obtain an entirely different relief from that asked for originally.'" Nor is it any infringement of this rule to amend the bill, so that the amendment will tend to promote a fair hear- ing of the matter in controversy on which the suit was originally based,'^ by changing or modifying its allegations or adding oth- ' ers, so long as the identity of the cause of suit be not destroyed. "^ And, as we have seen,"^ a bill may be originally framed with a double aspect, or may be so amended as to be of that character; ®* but the alternative case must be the foundation for precisely the same relief.'^ When an original bill, as already stated, ^^ shows a case wherein there can be no relief because it is based on and grows out of a conveyance fraudulent as to creditors, no amended bill is allowable to the guilty plaintiff."^ Nor can a bill be amended when it is multifarious ; '^ nor when it affirmatively shows that the plaintiff has no cause of action.'" § 352. Illustrations showing an infraction of the rule forbid- ding the introduction of a new cause of suit under the g^ise of an amendment. In exemplification of the principle announced in the next pre- ceding section, we deem it practical to give here a few decisions of the courts in which the rule under discussion has been applied and the right of amendment denied. Thus, the plaintiff G. at- taches certain shares of the S. V. R. Co. stock, owned by the C. I. Co. Later the plaintiff files an amended bill for himself and other creditors of the C. I. Co., averring that as a corporation it had been dissolved by the sale of its franchises under execution, and that first mortgage bonds of the S. V. R. Co. had been as- signed to the C. I. Co., and by it transferred to the P. R. Co., and praying that the latter company be made a party and be re- 90 Idem. "^ Idem. "Bird V. Stout, 40 W. Va. 43, fo Ante, §351. 20 S. E. 852. "^ Edgell v. Smith, 50 W. Va. 349, 92 Idem. 40 S. E. 402. S3 Ante, %15\. !>s Ante, §350, note 79. 94Piercy v. Beckett, 15 W. Va. os Keyser v. Renner, 87 Va. 249, 444 ; Tennant v. Dunlop, 97 Va. 234, 12 S. E. 406. 33 S. E. 620. § 352 Equity Procedure 432 required to disclose what amount of said bonds it held, and how and from whom they were acquired, and to maintain or re- linquish its claim to such bonds. Afterwards those creditors also filed a petition alleging that the C. I. Co. had been dissolved by reason of its insolvency and the sale of its charter rights under executions, and asking that the assets of that company be subjected to the payment pro rata of the claims of all its credit- ors. On demurrer, it was held that the amended bill and peti- tion made a new case and an unallowable departure from the original bill.^"" So, a bill filed to enforce the lien of a trust deed given to secure the payment of the bond of one person, which is shown to have been paid, can not be so amended as to allege the liability of a third party by reason of such third party giving his bond in lieu of the other note so shown to have been paid."^ So, a bill filed in a suit brought to ascertain the interest of a married woman in certain land under a particular deed and subject it by the sale thereof to the payment of a debt secured by trust deed, by the enforcement of such trust after such interest is ascertained, can not be amended, upon the trust deed being declared a nullity, so as to ask that the rents of the land be applied to the payment of such debt, as such proposed amendment would be a departure from the original bill.'^''^ "Where the plaintiff sued to remove a cloud upon the title of real estate alleged to have been purchased by him from a commis- sioner of school lands, averred that a third party, the principal defendant, had obtained a deed from such commissioner for the same land by means of fraudulent representations, and prayed specific performance on the part of the commissioner, the bill can not be amended so as to abandon the charge of fraud and allege an agreement with the defendant whereby he was to have a deed for the land by paying to the plaintiff the purchase money and five dollars, but averring that at the time of such agreement a mutual mistake was made as to where the land was situated, it not being the land that defendant wanted and that 100 Shenandoah Val. R. Co. v. 102 Pickens v. Knisely, 29 W. Griffith, 76 Va. 913. Va. 1. 101 Piercy v. Beckett, 15 W. Va. 444. 433 Amendment § 353 plaintiff intended him to have, and further charging that the land is included in two other tracts purchased by the plaintiff from the commissioner, asking for these reasons that such mis- take he corrected and the deed canceled. ^"^ In a suit brought to establish a resulting trust in favor of the plaintiff, the bill can not be amended so as to allow the plaintiff to show a resulting trust in favor of his father, assert title as an heir at law and bring the other heirs in as eoplaintiffs.^"* In a suit brought by a citizen and taxpayer of a district of a county on behalf of him- self and all other citizens and taxpayers of the district similarly affected by such illegal tax against the county court of such county and against the constables of such district, to enjoin the collection and disbursement of an illegal tax, the bill can not be amended so as to make it by a citizen and taxpayer of such county on behalf of himself and all other citizens and taxpayers of the county similarly affected as plaintiffs against the county court and the constables of such county, as this would make a new and different suit.^'"' And a bill alleging a partnership and praying for a dissolution and the appointment of a receiver and an accounting and for general relief can not, where a partner- ship is found not to exist, be amended so as to give complainant relief on the ground that an incomplete state of negotiations for a partnership existed."" § 353. Illustrations showing no departure from the rule for- bidding the introduction of a new cause of suit under the guise of an amendment. When a trust creditor and a trustee, to whom the property had been turned over by a trust debtor to sell, file a bill of injunction to restrain a third party from wrongfully removing the property 103 Christian v. Vance, 41 W. Va. tague v. C. R. & C. R. Co., 94 Ga. 754, 24 S. E. 596. 668, 21 S. E. 846; Ogden v. Moore, 104 Marshall v. Olds, 86 Ala. 296, 95 Mich. 290, 54 N. W. 899; Miles 5 So. 506. V. Strong, 60 Conn. 393, 22 Atl. 105 Williams v. County Court, 26 959 ; Nat. Bank Commerce v. Smith, W. Va. 488, 53 Am. Rep. 94. 17 R. I. 244, 21 Atl. 959; Mobile 106 Storer v. Harrison (R. I.), 35 Sav. Bank v. Burke, 94 Ala. 125, 10 Atl. 676. This case is not offi- So. 328; Newton v. Kemper, 66 W. cially reported. For additional il- Va. 130, 66 S. E. 102; Ellis v. lustrations of this rule, vide Mon- Whiteaere, 106 Va. 1, 54 S. E. 993. § 353 Equity Procedure 434 out of the state, but do not pray for general relief, a general prayer, in order to obtain the proper relief, may be added by way of amendment; and the bill may be further amended, as may be proper, by alleging new facts, and making new parties defendant, showing the necessity for taking accounts and for the aid of the court to enable the trustee safely and properly to dis- charge his duties, adding a prayer for the taking of such ac- counts and for the aid of the court in administering the trust.^"^ Where a bill has been filed for the S'pecific performance of a contract for the exchange of lands, if it appear during the prog- ress of the cause that the defendant can not comply with his con- tract, the plaintiff may amend his bill and ask for a rescission of the contract, and for any other relief to which, under the cir- cumstances, he may be entitled."^ Wliere a bill has been dis- missed on demurrer, but leave given to file an amended bill, the amended bill is not a departure from the original bill be- cause some of the original plaintiffs do not unite in it."' A bill seeking the cancellation of an agreement to sell land and general relief may be amended after hearing by asking in the alternative that a vendor's lien be declared."" In a suit for the reformation and foreclosure of a m'ortgage, the bill may be amended so as to pray for the reformation and removal of a cloud on plaintiff's title as mortgagee.'" In a suit for specific performance of a contract of sale, the bill may be amended set- ting up false and fraudulent representations, not discovered to be false until after the filing of the original bill, and then ask for a rescission of the contract."^ A bill filed to enforce an ex- press trust may be so amended as to show, from the allegations made by the amendment, an implied trust.'" A bill filed for a divorce a mensa et thoro may be amended by adding a ground i07McCrum v. Lee, 38 W. Va. "» Hardin v. Boyd, 113 U. S. 756, 583, 18 S. E. 757. 5 S. Ct. 771, 28 Law. Ed. 1141. 108 Parrill v. McKinley, 9 Gratt. m Hawkins v. Pearson, 96 Ala. (Va.) 1, 58 Am. Dec. 212; Papin 369, 11 So. 304. V. Goodrich, 103 111. 86. But see "2 Jefferson v. Kennard, 77 111. Coddington v. Mott, 14 N. J. Eq. 246. See Tennant v. Dunlop, 97 4 30, 82 Am. Dec. 258. Va. 234, 33 S. E. 620. io9Ewing V. Ferguson, 33 Gratt. "3 Hall v. Congdon, 56 N. H. 279. (Va.) 548. 435 A.MENDMENT 5 353 for a divorce a vinculo matrimonii}^* And a bill filed to enforce -a legal claim which distinctly attacks a general assignment by the defendant, as fraudulent and made with intent to delay, hinder and defraud his creditors, praying that the lien of plain- tiff's attachment be established and enforced and for general re- lief, may be amended by inserting further allegations of fraud and conspiracy in making- the assignment and the sale by the trustee thereunder and by the insertion of an additional prayer that both the assignment and sale by the trustee be set aside and be declared fraudulent and void."^ For additional cases illustrating the matter under considera- tion see those cited below.^'° 11* Latliam i . Latham, 30 Gratt. (Va.) 307. no First National Bank v. Prager, 50 W. Va. 660, 41 S. E. 363. lis Blair v. Central City Street R. Co., 88 Ga. 535, 15 S. E. 12; Johnson v. Burner, 88 Ala. 580, 7 So. 245; Hardie v. Bulger, 66 Mfiss. 577, 6 So. 186; Jenkins v. Inter- national Bank, 127 U. S. 484, 8 S. Ct. 11!)6, 32 Law. Ed. 189; Lou vail V. Gridley, 70 Cal. 507, 11 Pac. 777. Facts, and details made more explicit. Cox v. National Coal & Oil Investment Co., 61 W. Va. 291, 56 S. E. 494, 18 L. R. A. (N.S.) 1109, note. Amendment as to capac- ity in which defendant is sued. Hall V. McGregor, 65 W. Va. 74, 64 S. E. 736. Bill to remove cloud from title. Amendment to show posses- sion in plaintiff and tender of taxes, etc. Baker v. Briggs, 99 Va. 360, 38 S. E. 277. Amendment to show actual fraud where only legal fraud originally alleged. Kinney v. Craig, crnns Hutclrinson v. Maxwell, 100 Va. 169, 40 S. E. 655, 57 L. R. A. 384, 93 Am. St. Rep. 944. "According to the English prac- tice, where a party has mistaken his case, and brings the cause to a hearing under such mistake, the rule is, to dismiss the bill without prejudice to a new bill. But even there the rule is in many cases dis- regarded. Thus in Mayor v. Dry, 2 Sim. and Stu. R. 113, the com- plainant by his bill sought to set aside a deed upon the ground of fraud. The defendant answered, in- sisting upon the deed; the com- plainant being satisfied the deed could not be successfully impeached, was permitted to, file an amended bill relying upon it. "In Smith v. Smith, Cooper's Ch. C'as. 141, a bill for an account against the defendant as bailiff was allowed to be changed into a bill for the foreclosure of a mortgage. See the cases cited in I Daniell, Ch. Pr., page 408. It is said by the author just mentioned, that great latitude is allowed to the plaintiff in mak- ing amendments, and the court has gone to the extent of permitting a bill to be converted into an informa- tion. It has been held where a plain- tiff' filed a bill stating an agree- ment, and the defendant by his answer, admitted there was an agreement, but diff'erent from that stated by the plaintiff, that the plaintiff might amend his bill aban- §354 Equity Peoceduee 43e § 354. As to amending a sworn bill. Subject to the principles already considered, and to those hereinafter considered,^" a bill that ha* been sworn to may be doning his first agreement and pray- ing for a decree according to that admitted by the defendant. "In the different states it is well known, that the practice of courts of equity in allowing amendments is much more liberal than in England. Those courts, while professing to adhere to the rule, that the plain- tiff shall not by his amended bill make a new case, have allowed so many departures from it that it is now scarcely susceptible of any very accurate definition. "For example: In Philhower v. Todd, 3 Stock. R. 54-312, it was held, even after a hearing upon a motion to dissolve an injunction and the delivery of the court's opin- ion, that the injunction should be dissolved and the bill dismissed, the injunction miglit be retained, and the party permitted to amend by al- tering tlie frame and the averments of his bill. "In Buckley v. Corse, Saxton's E. 504, the bill charged that the plain- tiff had title to the premises older than the defendant's mortgage, but that under t)ie belief that the mort- gage was prior to his estate, the plaintiff had agreed to pay it, and had advanced large sums on that ac- count. The bill prayed for an ac- count of the moneys thus paid. Upon the coming in of the answer denying the allegations of the bill, the injunction was dissolved. After- wards the complainant had leave to amend by making it a bill to re- deem the defendant's mortgage. Sec Henry v. Brown, 4 Halst. Ch. R. 245 ; Harris V. Knickerbaclcer, 5 Wend. R. 638; S. C. 1 Paige's R. 209; Bellows v. Stone, 14 New Hamp. R. 175; McDougal's Admx. V. Williford, 14 Geo. R. 668; Neale V. Neales, 9 Wall. U. S. R. 1. ' « * # * » ♦ "In Anthony v. Lefticiches Rep., 3 Rand. 238, the bill was filed for specific execution of a contract re- lating to land. The court was of opinion upon the pleadings and evi- dence, it was not a, case for specific performance. It, however, remanded tlie cause to the circuit court, with leave to the complainant to make new parties, and claim compensation for the improvements he had made on the land. "In Parrill v. McKinley, 9 Gratt. 1, the bill was for specific perform- ance, and the plaintiff ^Yas per- mitted to file an amended bill ask- ing for a rescission of the contract. If these cases do not show that the plaintiff is permitted to make a new case, they at least show that he may by his amendment so alter the frame and structure of his bill as to obtain an entirely different relief from that asked for originally. This is founded upon good reason. Why should the plaintiff be put to a new hill for different relief upon the same transaction when the object can be accomplished by an amend- ment. If there is danger that the defendant will he injuriously affect- ed by the amendment it will be re- fused, and the suit will be consid- ered as pending only from the time of the amendment." See Belton v. Apperson, 26 Gratt. (Va.) 207, 215 ct scq. But see Newton v. Kemper, 66 W. Va. 130, 133, 66 S. E. 102. 1^1 Ante, §§ 345, 353; post, §§ 358, 359. 437 Amendment § 355 amended as other bills, except that greater caution is exercised by the court in granting permission to make the amendment."* § 355. As to amending an injunction bill. While it is a general principle of equity to require a party to state his whole case in his original bill, still it is the genius of the law as administered in a court of equity not to multiply, but to put an end to, litigation/^" So if an injunction bill is de- fective as to parties, or in the mistake or omission of any fact or circumstance connected with the substance of the bill, it may be amended at any time, and in the manner regulating amend- ments generally to bills in equity, as already discussed under previous sections of this chapter.'^" Whether such a bill may be amended as a matter of right at any time before appearance but after the service of the writ of injunction, does not seem clear to the author ; ^^^ but on principle, and per- haps even on authority, such a bill may be amended ))efore appearance by the defendant as a matter of right without leave of court. ^-- However, as in the case of other bills verified by oath, the right to amend an injunction bill should be guard- iis Campbell v. Powers, 139 111. Atl. 208; Avery v. N. Y. Cent. & 128, 28 N. E. 1062; 1 Dan., Ch. IT. R. R. Co., 106 N, Y. 142, 12 N. Pr. (4th Am. Ed.), 401, note 8; E. 619. Swift V. Eckford. 6 Paige Ch. (N. i-'i Parker v. Grant, 1 Johns. Ch. Y.) 22, 3 Lan-. Ed. 882; Laskey v. (N. Y.) 434, 1 Law. Ed. 200; 13 Burrill, 10.5 Va. 480, 54 S. E. 23. Stand Proc. 10.5, contra; 22 Cyc. 110 Holland v. Trotter, 22 Gratt. 935, contra; Baker v. Tiladwin, 1 R. (Va.) 136. I. 489. 12" Idem: ]\TcCrum v. Lee, 38 W. 1=2 Hunt v. Holland, 3 Paige Ch. Va. 583, 18 S. E. 757; Wlietsell v. (N. Y.) 78, 3 Law. Ed. 65; Renwick City of Elkins, 68 W. Va. 709, 70 v. Wilson, 6 Jojins. Ch. (N. Y.) 81, S. E. 754; Harrison v. Yerby 2 Law. Ed. 61. (Ala.), 14 So. 321; Lanning v. The only obstacle urged, or which Heath, 25 N. J. Eq. 425; Rodgers would seem to exist, to such an V. Rod.tjers, 1 Paijie Ch. (N. Y.) amendment is tlie fact that the bill 424, 2 Law. Ed. 701 ; Philhower v, is sworn to, but this objection would Todd, 11 N. J. Eq. 312; Henry v. apply to other bills tlian injunction Brown, 8 N, J. Eq. 245; Morton v. bills, and very frequently in West Grafflin, 68 Md. 545, 13 Atl. 341, 15 Virginia. § 356 Equity Procedure 438 ed with great caution and permitted only when the ends of jus- tice require it.^-^ § 356. Effect upon the injunction of an amendment to the bilL An amendment to an injunction bill relating to matter al- ready charged in the bill, introducing additional facts and cir- cumstances to strengthen and support the allegations of the bill as originally made, will be Avithout prejudice to an injunction previously awarded ; '-* and though it is said to be usual for the order giving leave to amend to state that the amendment be made without prejudice to the injunction, this is not neces- sary.^-^ It has been held that if an amendment is made to an injunction bill after an answer has been filed to such bill, the in- junction must stand or fall upon the original bill and the answer thereto; and that the amendment can not be used in support of the injunction.'-" But in Holland v. Trotter '-^ and MeCrum V. Lee,'-* the injunction bills were amended and the injunctions maintained in force on the bills as amended, and in the latter case a new party was added to the bill by the amendment. 123 High on Injunctions, §997; 22 Walker, 3 Ga. 302; 13 Stand. Proc. Cyc. 935; 13 Stand. Proc. 103-105. 107, citing Craig v. Craig, 175 111. A prayer for relief may l)e added by A])p. 176, in addition to some of the way of amendment. McCrum v. Lee, cases above cited. 38 W. Va. 583, 18 S. E. 757. Like- i-''' 1 Dan., Ch. Pr. (4th Am. Ed.), wise, the allegations may so be 423, 424. made to conform to the proof. i^oT^enwick v. Wilson, 6 Johns. Whetaell v. City of Elkins, 68 W. Ch. (N. Y.I 81, 2 Law. Ed. 61, in Va. 709, 70 S. E. 754, which the chancellor cites Mayne- 124 Eenwiek v. Wilson, 6 Johns. v. Hochen, Dick. 255 ; Vere v. Glynn, Ch. (N. Y.) 81, 2 Law. Ed. 61; Dick. 441. Dipper v. Durant, 3 Meriv. 465; 127 22 Gratt. (Va.) 136. Adney v. Flood, 1 Madd. 449; Ma- 1283s W. Va. 583, 18 S. E. 757. son V. Murray, Dick. 536; Rogers An injunctipn will be kept in force V. De Forest, 3 Edw. Ch. (N. Y.) on evidence which a defective bill 171, 6 Law. Ed. 614; Philhower v. fails to support, in order to give Todd, 11 N. J. Eq. 312; Barber v. the plaintiff an opportunity to Reynolds, 33 Cal. 502; Seidell v. amend his bill. Whetsell v. City Vermilya, 4 Sandf. Ch. (N. Y.) 573, of Elkins, 68 W. Va. 709, 70 S. E. 7 Law. Ed. 1214; Vliet v. Sher- 754; Dickinson v. Foster, 81 W. Va. wood, 37 Wis. 168; Walker v. 739, 95 S. E. 196. 439 Amendment § 358 § 357. As to filing an amended bill in the clerk's oflSce in the vacation of the court. It is provided by statute in Virginia "^ and in West Vir- ginia ^^^ that the plaintiflf may at any time before or after the appearance of the defendant, in the vacation of the court in which the suit is pending, file in the clerk's office, with the other papers of the cause, an amended bill, supplemental bill, or bill of revivor; and that the clerk shall then issue a summons against the defendant, requiring him to plead to, or answer, such amend- ed bill. The statute further provides that if the court shall be of the opinion that such amended bill was improperly filed, it shall dismiss such bill at the cost of the plaintiff. The ostensible purpose of this statute is to enable the plain- tiff to remedy any supposed defect in his bill by making an amendment to it without waiting for the court to convene; and thus to mature his whole case without delay and have it submit- ted at the earliest point of time possible, consistently with the necessary procedure at rules in the clerk's office upon the bill as amended. The statute evidently contemplates that the amend- ments made under it shall be kept separate and distinct from the original bill and distinguishable from it; and therefore, shall be made on paper upon which no part of the original bill appears. But if the plaintiff so elects, he may amend his bill be- fore the appearance of the defendant, by changes made in the original bill and not separate and distinct from it.^'^ § 358. How leave to amend may be obtained. The usual mode of obtaining leave to amend a bill in equity is by mere motion, as shown by an examination of the cases in which amendments have been permitted or refused,^'^ and as de- duced from the observation and experience of the author in 120 Va. Code, 1904, §3253. Dec. 167, 22 S. E. 508; Doyle v. 130 w. Va. Code, 1913, c. 125, § 12. Wlialen, 87 Me. 414, 32 Atl. 1022, 131 Shinn v. Board of Education, 31 L. R. A. 11-8; Huffman v. Hum- 39 W. Va. 497, 505, 20 S. E. 604. mer, 17 N. J. Eq. 270; Setzer v. 132 Baker V. Baker, 3 Munf. (Va.) Beale, 19 W. Va. 274; McCoy v. 222; Pettyjohn v. Burson, 2 Va. Allen, 16 W. Va. 724. §358 Equity Procedure 440 actual practice, unless the bill has been sworn to. The motion to amend a bill which has been sworn to should be accompanied by a statement in writing submitted to the court,^^^ after notice to the defendant or his counsel,^ ^* of the extent and character of the proposed amendment and some explanation of the reason why the matter proposed to be added was not inserted in the original bill, which statement should be duly verified as to its truth by affidavit."^ Or, as is often done, the proposed amend- ment may be embodied in a distinct and separate amended bill, setting out the new matter proposed by way of amendment, with the reason stated in such amended bill for the delay, so that the court may see from the amended bill itself whether the amendment should be allowed.^^^ If the evidence already filed in the cause disclose the necessity for an amended bill, it is not nec- essary that the proposed amendment be submitted to the court in writing verified by affidavit.^" If it is desired to transpose a party to a suit from the position of a defendant to that of a 133 Campbell t. Powers, 139 III. 128, 28 N. E. 1062; Rodgera v. Rodg- ers, 1 Paige Ch. (N. Y.) 424, 2 Law. Ed. 701. It has been held re- cently tliat leave to amend must be given even in the absence of any request for such leave. Dickinson V. Foster, 81 W. Va. 739, 95 S. E. 196. 134 Shinn v. Board of Education, 39 W. Va. 503, 20 S. E. 604. See W. Va. Code, 1913, c. 125, § 12. i3r> Campbell v. Powers, 139 111. 128, 28 N. E. 1062; Rodgers v. Rodgers, 1 Paige Ch. (N. Y.) 424, 2 L. Ed. 701 ; High on Injunctions, § 999, citing Carey v. Smith, 11 Ga. 539. See also, Verplanck v. Mer- cantile Ins. Co., 1 Edw. Ch. (N. Y.) 46, 6 Law. Ed. 54 and note; Rogers v. Deforest, 3 Edw. Ch. (N. Y.) 171, 6 Law. Ed. 614; Puter- baugh, Ch. PI. and Pr., 199. 136 Shinn v. Board of Education, 39 W. Va. 505, 20 S. E. 604. The oath to the bill takes the place of the oath to the written statement above mentioned. 137 Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N. E. 238. "No re- lief by way of injunction was asked by reason of the amendment, nor did the original injunction need for its support the amended matter. It was therefore not essential the amended bill should have been veri- fied by affidavit. The evidence al- ready before tlie court was sufficient to support tlie motion for leave to make tlie proposed amendment, and it was tlierefore not necessary that the rule announced in Jones v. Ken- nieott, 83 111. 484, that the proposed amendment to a, sworn bill should be first submitted to the court in writi^ig, verified by affidavit, should have been enforced." Idem. 441 Amendment § 359 plaintiflf, or vice versa, leave to do so may be asked by petition, in which the reasons therefor may be stated ; "^ or a motion may be addressed to the court asking the desired change and stating the reasons therefor.^" § 359. The manner in which a bill should be amended. When the defendant has appeared to the cause, and the plain- tiff has obtained leave to amend his bill, the amendment must be made on a separate and distinct paper from the original bill by a formal amended bill, so as not to mutilate the original bill.^*° It is said that a short and comparatively unimportant amend- ment, such as the correction of a date, the change, striking out or insertion of a name, or the introduction of a single allegation, not materially changing the general frame of the bill, may be made on the margin of the bill or by interlineation ; ^''^ but it must be so made as to be distinguished from that which constitutes the original bill.^''^ Especially if the original bill has been sworn to, the amended parts must not be stricken out, but the amendment should be so made as to preserve the facts and alle- gations set forth in the original bill.^*^ Or the bill may be re- written, incorporating in it the amendments so as to show just what has been added by way of amendment.^^* It is said that the amendments should be distinctly shown and easily perceived; and that the amendments are to be made by interlineations, or by insertions in the margin, if short ; or by being separately en- grossed and annexed to the original bill. If the amendments be 138 Burlew v. Quarrier, 16 W. Va. practice of amending by interlinea- 108. tiona is not favored. 1 Stand. Proc. 139 McConaughey v. Bennett's 002, citing Western Trav. Ace. Assn. Exors., 50 W. Va. 172, 40 S. E. ' v. Tomgon, 72 Neb. 601, 101 N. W. 540. 341, 103 N. W. 6f).-). 105 N. W. 293. 140 Setzer v. Beale, 19 W. Va. 274; 1^2 Luce \. Graliani, 4 Johns. Ch. Shinn v. Board of Education, 39 W. (N. Y.) 170, 1 Law. Ed. 804. Va. 205, 20 S. E. 604. "s Verplanck v. Mercantile Ins. 141 Luce V. Graham, 4 Johns. Ch. Co., 1 Edw. Ch. (X. Y.) 46, 6 Law. (N. Y.) 170, 1 Law. Ed. 804; Ayres Ed. 54. V. Valentine, 2 Edw. Ch. (N. Y. ) k* Bennington Iron Co. v. Camp- 451, 6 Law. Ed. 463; 1 Beach, Mod. bell, 2 Paige Ch. (N. Y.) 160, 2 Eq. Pr., § 153 and notes. But the Law. Ed. 855. § 361 Equity Proceduke 442 of such a nature as to require the original bill to be re-engrossed, they should then be designated in some way suflficient to point them out to the defendant. ^''^ But if the amendment is made be- fore any appearance by the defendant, and the bill is not sworn to, the plaintiff may amend his bill in any manner he may deem advisable, as this can in no wise be to the prejudice of the de- fendant. § 360. How objection to an amendment may be made. If an order has been entered in the cause allowing the plain- tiff to amend his bill, this does not preclude the defendant from objecting to the amendment when made.^" When the amend- ed bill has been filed, if it offers an improper amendment to the original bill, its impropriety may be raised by demurrer,^" or the court may dismiss it at the hearing.^*^ Or the filing of it may be objected to, and, if the amendment which it proposes ought not to be made, the objection will be sustained, and the filing of it will not be permitted.^''^ § 361. As to when an amendment to a bill takes effect. Inasmuch as an amendment to a bill must be read with it and as constituting a part of it,^^° as a general rule the amendment relates back to the time of the commencement of the suit and 146 Fletcher, Eq. PI. and Pr., instances in Virginia and West Vir- § 406, citing Luce v. Graham, 4 ginia where demurrers have been in- Johns. Ch. (N. Y.) 170; Willis v. terposed to amended bills. The Evans, 2 Ball & B. 225; Peirce v. propriety of so testing the suffi- West, 3 Wash. C. C. 354, Fed. Cas. ciency of such a. pleading is obvious No. 10, 910; Walsh v. Smyth, 3 and has not been questioned. Bland (Md.) 0; Bennington Iron "s Shenandoah Val. R. R. Co. v. Co. V. Campbell, 2 Paige (N. Y.) Griffith, 76 Va. 913. 159. "» Parsons v. .Tohnson, 84 Ala. 146 Ward V. Patton, 75 Ala. 207; 254, 4 So. 3S5; Rogers v. Simpson, Wright V. Frank, 61 Miss. 32; Ans- 10 Heisk. (Tenn.) 655. ley V. Glendenning, 56 Ga. 286; loo Keyser v. Renner, 87 Va. 249, Scott V. Turley, !) Lea (Tenn.) 631. 12 S. E. 406; Straughan v. Hall- I" Piercy v. Beckett, 15 W. Va. wood, 30 W. Va. 274, 4 S. E. 394, 444. It is unnecessary to call at- 8 Am. St. Rep. 29. tention specifically to the numerous 44S Amendment § 362 takes effect from that date.^^^ Hence, when an amendment to a bill is properly made, so far as the statute of limitations is con- cerned, it will have the same effect as if it had been filed at the time when the suit was commenced, and a cause which was not then barred will not be treated as barred at the time of the amendment.^^^ So, where a bill, as amended, states good ground for an injunction, the sufficiency of the bill as originally filed to sustain an injunction will not be considered on appeal, because the amendment relates back to the commencement of the suit.^^^ But if new parties defendant are brought into the suit by an amendment, such an amendment takes effect only from the time it is made, so far as the statute of limitations concerns such new parties; and if the claim is then barred, it may be effectually interposed and relied on as a defense by the new party.^^* So, if an entirely new plaintiff is added by amendment, the defend- ants have the same rights to set up the statute of limitations against him.^^^ § 362. When process should be issued on an amended bill. As already stated,^ ^* when an amended bill is filed in the clerk's office in the vacation of the court, process must be issued upon it requiring the defendant to answer it. And, if new parties defendant are added to the suit by way of amendment, process must issue to bring in such new defendants, so as to proceed against them in the usual course, unless, of course, they waive process and appear gratis}^'' It is provided by statute 101 Lamb v. Cecil, 28 W. Va. 653; S.) 61, 8 Law. Ed. 320; Alexander Hurd V. Everett, 1 Paige Ch. (N. ». Pendleton, 8 Cranch (U. S.) 462, Y.) 124, 2 Law. Ed. 58.5; Miller v. 3 Law. Ed. 624; Dorr's Admr. v. Cook, 135 111. 100, 25 N. E. 756, 10 Rolir, 82 Va. 350, 3 Am. St. Rep. L. R. A. 202. 106. 152 Lamb V. Cecil, 2S \V. Va. 653. i"''' Kin;,' v. Avery, 37 Ala. 169; 153 Miller v. Cook, l:i5 111. 100, 25 Sicard \. Davis, 6 Pet. (U. S.) 124, N. E. 756, 10 L. R. A. 202: John- 8 Law. Ed. 342; Cunningham v. son V. Vail, 14 N. J. Eq. 423; Sel- Pell, 6 Paige Ch. (N. Y.) 655. den V. Vermilya, 4 Sandf. Ch. (N. 150 Arete, §357. Y.) 573, 7 Law. Ed. 1214 and note; iot l Beach, Mod. Eq. Pr., § 154; 1 Beach, Mod. Eq. Pr., § 154. Lawrence v. Bolton, 3 Paige Ch. 154 Miller v. Melntire, 6 Pet. (U. (N. Y.) 294, 3 Law. Ed. 159; Beek- § 363 Equity Procedure 444 in West Virginia that if a demurrer be sustained to a bill, the plaintiff, upon giving notice to the defendant or defendants who have appeared, or to their counsel, may file at any time within the term at which the demurrer was sustained, an amended bill ; and, thereupon, the cause shall proceed as if such amended pleading had been filed at the time when the original bill was filed; but the court shall allow the defendant a reasonable time to plead or to answer such amended bill.^^* The plain intention of this statutory provision is to do away with the necessity, to the extent that such necessity previously existed, of issuing process upon the amended bill or of remanding the cause to !rules for the purpose of maturing it upon the amended bill; but, regardless of the statute, it would still seem essential to remand the cause to rules to be matured upon the amended bill in all cases where the amendment makes new parties to the cause, unless such new parties should appear and waive their rights in this respect. But upon all other amendments to the bill no process is required.-^^' § 363. Effect of an amendment to the bill upon the rig^ht of continuance. "When the bill is amended at the hearing so as to conform it to unimportant facts brought out by the testimony of the defend- ant, or judicially known to the court, so as to require no new pleading by the defendant, a continuance will not be allowed.^*" man v. Waters, 3 Johns. Ch. (N. v. Willis, 50 W. Va. 341, 40 S. E. Y.) 410, 1 Law. Ed. 666; Cunning- 340. ham V. Pell, 6 Paige Ch. (N. Y.) 1=8 This provision of the statute 655, 3 Law. Ed. 1144; Burdett v. was added to the Code, e. 125, §12, Greer, 63 W. Va. 515, 60 S. E. 497, by acts of 1911, c. 41, "for the 15 L. E. A. (N.S.) 1019, 129 Am. purpose of speeding the progress of St. Rep. 1014; Bragg v. United actions and suits after the amend- Thacker Coal Co., 70 W. Va. 655, ment to pleadings therein." 74 S. E. 946. Process may issue i5o Lawrence v. Bolton, supra, and either before or after the bill is the other authorities cited in the filed. Wilson v. Maddox, 46 W. Va. last foot-note. 641, 33 S. E. 775; Long and Devers "o Phillips v. Edsall, 127 111. 535, 20 N. E. 801. 445 Amendment §363 It is provided by statute in West Virginia ^^^ that i£ an amend- ment be made at the same term of court at which a demurrer is sustained to the original bill, the court shall allow the de- fendant a reasonable time to plead or to answer the amended bill. What is a reasonable time in which to file a plea or answer to the amended bill is left to the discretion of the court; and the courts apply the modern rule governing continuances after the plaintiff has amended his pleading: that if the amend- ment operates as a surprise to the defendant so as to prejudice the substantial rights of the defendant by a submission of the cause, a continuance should be granted; otherwise, not.^^^ The change by amendment of the pleading must be of a material character, altering in some degree the claim of the plaintiff,^'' whereby the plaintiff may offer proof or have evidence consid- ered which could not have been offered nor considered under the original pleading,"* before the defendant can be said to be taken by surprise.^'^^ Many of the eases cited in support of the principles announced in this section were actions at law, but they are none the less applicable, inasmuch as the law governing continuances, as shown by the authorities, applies alike at law and in equity.^" 181 W. Va. Code, 1913, o. 125, § 12, as amended by Acts of 1911, u. 41. i«2 Anderson v. Kanawha Coal Co., 12 W. Va. 526 ; Harvey v. Par- kersburg Ins. Co., 37 W. Va. 272, 16 S. E. 580; Taylor v. Cox, 32 W. Va. 148, 9 S. E. 70; Puterbaugh, Ch. PI. and Pr. (3d Ed.), 198; Wilson V. Kennedy, 63 VV. Va. 1, 59 S. E. 736; Bartrug v. Edgell, 80 W. Va. 221, 92 S. E. 438; 1 Stand. Proc. 898. 163 Eames v. Morgan, 37 111. 260; Chambers v. Lane, 5 Mo. 289; Barnes v. Scott, 29 Fla. 285, 11 So. 48. 164 Texas, etc., R. Co. v. Corne- lius, 10 Tex. Civ. App. 125, 30 S. W. 720; Dobbins v. Higgins, 78 111. 440; Ohio, etc., R. Co. v. Selby, 47 Ind. 473, 17 Am. Rep. 719. 165 See cases cited in last two foot-notes. 166 Buster v. Holland, 27 W. Va. 510; Roaset v. Greer, 3 W. Va. I; Ingles v. Straus, 91 Va. 209, 2l" S. E. 490; Vaught v. Rider, 83 Va- 659, 3 S. E. 293 ; Allcorn v. Rafferty, 4 J. J. Marsh (Ky.) 222; Walker V. Douglass, 70 111. 446; Zabel v. Nyenhuis, 83 Iowa 756, 49 N. W. 990; Deans v. Scriba, 2 Call. (Va.) 416; Jenkins &, Cutchin v. Waller & Jordan, 80 Va. 668. §364 Equity Proceduee 446 § 364. Laches in asking leave to amend. Though amendments may be made at any stage of the cause, it is laid down by high authority and by numerous cases, that the application to amend ought to be made at the earliest opportunity, as any unreasonable or improper delay may de- prive the party of the favorable exercise of the discretion of the court. ^*' And it ought to be shown that the existence of the facts sought to be added by way of amendment was not known to the plaintiff when he filed his original bill ; ■'^^ or, if known, some excuse should be given for the omission to insert them in the original bill."' The reason assigned for filing the amended bill in Set25er v. Beale,^'" was that the plaintiff was not present when the original bill was drawn, and that it was prepared by counsel under a misapprehension of the facts, superinduced by the plaintiff's confused statement of the ease to his counsel. In Holland v. Trotter,!'! jjq objection was made in the court below to the filing of the amended bill.^'^ In Belton v. Apperson, the 107 Puterbaugh, Ch. PI. and Pr. (3d Ed.), 199; Rodgers v. Rodgers, 1 Paige Ch. (N. Y.) 424, 2 Law. Ed. 701 ; Gregg >-. lirower, G7 111. 530; Codington v. .Mott, 14 N. J. Eq. 430, 82 Am. Dec. 2.58; Verplanck V. Mercantile Ins. Co., 1 Edw. Ch. (N. Y.) 47; Vermillyea v. Odell, 4 Paige Ch. (N. Y.) 121, 3 Law. Ed. 370; Glenn v. Brown, 99 Va. 322, 38 S. E. 189; Belton v. Apperson, 26 Gratt. (Va.) 207; Holland v. Trotter, 22 Gratt. (Va.) 136; Alsop V. Catlett, 97 Va. 364, 34 S. E. 48; Floyd V. Duflfy, 68 W. Va. 339, 340, 69 S. E. 993, 33 L. R. A. (N.S.) 883; Johnson Milling Co. v. Read, 76 W. Va. 557, 85 S. E. 726 ; Roller V. Murray, 107 Va. 527, 50 S. E. 421; Bowe v. Scott, 113 Va. 499, 75 S. E. 123. The degree of dili- gence to be required lies within the discretion of the court. Floyd v. Duffy, svpra. The same degree of diligence is required in amending a bill so as to introduce new matter as in bringing an original suit. Johnson Milling Co. v. Read, supra. 168 Bell's Admr. v. Hall, 1 Hal. Ch. 49, 5 N. J. Eq. 49: Buckley v. Corse, Sax. 504, 1 N. J. Eq. 504; Vashon v. Barrett, 99 Va. 344, 38 S. E. 200; Bowe v. Scott, 113 Va. 499, 75 S. E. 123: Starke v. Storm's Admr., 115 Va. 651, 79 S. E. 1057. ins VVliitmarsh v. Campbell, 2 Paige Ch. (N. Y.) 67, 2 Law. Ed. 815; Gregg v. Brower, 67 111. 530; Calloway v. Dobson, 1 Brock. (U. S.) 119; Prescott v. Hubhell, 1 Hill Ch. (S. C.) 217; Roller v. Murray, 107 Va. 527, 59 S. E. 421; Johnson Milling Co. v. Read, 76 W. Va. 557, 564, 85 S. E. 726. 1-" 19 W. Va. 274. "■22 Gratt. (Va.) 136. 172 "In the case before us no ob- jection was taken by the defendants 447 Amendment §365 bill was prepared in great haste and without due consideration, with a view to prevent a sale of property, without much regard to the ultimate relief accruing to the plaintiff.*" In Alsop v. Catlett,"* it is decided that a "refusal of an amendment of the bill, asked after decision and direction of a decree, to set up facts known to complainants for months before the case was decided or submitted, no reason for the delay being shown, can not be reviewed." § 365. As to the right of the defendant to plead anew after the bill has been amended. After an amendment is made to a bill which has been an- swered, however slight or unimportant the amendment may be, in the court below to filing the amended bill, and it was filed, by leave of court, before the hearing. The new matter alleged in the amended bill was in no wise repug- nant to the original bill, but was in addition thereto, and connected with the allegations of the original bill, and naturally grew out of the substance of that bill, and is fairly witliin the rule of chancery courts governing this question. Such an olijection ought not to be sustained, except in a clear case, especially wliere the objection is made for tlie first time in the appellate court. If sustained, it would be no bar to anotlier injunction. It would not conclude tlie rights of the parties, or adjudicate tlie matters in contro- versy between them. It is the policy of courts of equity not to multiply but to put an end to litigation. Where the record shows the proper parties and a substantial ease, no court, and least of all an appellate court, will render such a decision as to leave the matter in contro- versy still a subject of litigation. We are, therefore, of opinion, that the second assignment of error is not -well taken." Holland v. Trot- ter, 22 Gratt. (Va.) 136. i7:i "Tlie principal difficulty in this case grows out of the delay in tendering the amended bill. This difficulty might be insuperable had the defendant Shriver been a party to the original bill from the be- ginning. But he is now for the first time brought before the court. He did not choose to make himself a party to tlie original bill, or to move for a. dissolution of the in- junction. The cause seems, by com- mon consent, to have remained upon the docket without any action or motion by either party. However this may be, as the complainants may at once file a. new bill against the defendant Shriver, the delay in tendering the amended bill can not prejudice his interests." Belton v. Apperson, 26 Gratt. (Va.) 207. 17* 07 Va. 364, 34 S. E. 4S. For additional illustrations, see the later Virginia and West Virginia cases cited in the foot-notes above. § 366 Equity Procedube 448 the defendant has a right to make his defense anew, even to the extent of contradicting his former answer."^ After the bill has been amended, he may file a plea to it as amended,"^ though a plea to the original bill was disallowed."' Inasmuch as a de- fendant in Virginia "^ and West Virginia "' may plead as many several matters of law or fact as he shall think necessary, he may therefore at the same time demur,'*" plead specially,'" and an- swer,"^ the bill as amended ; or he may rely on any one or more of these modes of defense to the amended bill as he may be advised.'*' § 366. Ri^ht of defendant to amend his plea. When a plea has been incorrectly framed, but which discloses a material ground of defense, a court of equity, following in this respect the courts of law, will, in its discretion, permit the plea to be amended,'*^ unless it b6 a plea in abatement, to which no amendment will be allowed.?'^ But the court should be informed as to the character and extent of the proposed amendment, and how the defect or omission sought to be cured by the amend- ment happened,'*^ and the privilege of amendment must be exer- cised promptly.'*' 176 1 Dan., Cli. Pr. (4th Am. Ed.), isi Puttrbaugli, Ch. PI. and Pr. 409; Trust cS: Fire Ins. Co. v. Jenk- (3d Ed.), 205. ins, 8 Paige Ch. (N. Y.) 589, 4 i82 Trust & Fire Ins. Co. v. Jenk- Law. Ed. 554; Richardson v. Rich- ins, 8 Paige Cli. (N. Y.) 5S9, 4 ardson, 5 Paige Cli. (N. Y.) 58, 3 Law. Ed. .554: Bowen v. Idley, 6 Law. Ed. 627 and note. Paige Ch. (X. Y.) 46, 3 Law. Ed. iToPuterbaugh, Ch. PI. and Pr. 893; Bauer Grocer Co. v. Zelle, 172 (3d Ed.), 205, and authorities cited. 111. 407, 50 N. E. 238; Adams v. i"Am. Bible Soc. v. Hague, 10 Gill, 158 111. 190, 41 N". E. 738. Paige Ch. (N. Y.) 549, 4 Law. Ed. iss See authorities cited in the 1086. foot-notes to tliis section. Teter v. i"Va. Code, 1004, § 3264. -Moore, 80 W. Va. 443, 03 S. E. 342. 170 W. Va. Code, 1913, c. 125, § 20. 's-t 1 Dan., Ch. Pr. (4th Am. Ed.), 180 1 Dan., Ch. Pr. (4th Am. Ed. I, 703, 704 and notes; 1 Beach, Mod. 409. But a demurrer will not lie to lOq. Pr., § 320. an amended bill upon any cause of is'' Bacon v. Schepflin, 185 111. demurrer to whicli the original bill 122, 56 N. E. 1123; Hogg, PI. and was open, unless the nature of the Forms (2d Ed.). 170. case has been changed by the amend- i^" 1 Beach, Jlod. Eq. Pr., § 320, ment. Idem. But see Bowes v. is' Idem, Hoeg, 15 Fla. 403. 449 Amendment §367 § 367. Right of defendant to amend his answer. The matter of allowing an answer to he amended rests entirely in the sound discretion of the court.^^* As to mere matter of form,^^^ mistake in date or fact, or clerical- or verbal inaccu- racies, which the court is satisfied have occurred through in- advertence, or where the mistake or omission is manifestly a mere oversight, there is considerable indulgence in allowing amendments.^'" Courts are much stricter in permitting amend- ments to answer than to bills, "^ unless it be on the hearing of the cause, when the same indulgence is extended to the one as to the other, that the court may be enabled to determine the merits of the cause.'"^ Hence, when it is sought to amend a sworn an- 188 Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375, 1 Law. Ed. 873; Hiiflf- man v. Hummer, 2 C. E. Green 269, 17 N. J. Eq. 269; Liggon v. Smith, 4 Hen. & Munf. (Va.) 405: Elder V. Harris, 76 Va. 187, 192: 1 Beach, Mod. Eq. Pr., i 391; Martin v. At- kinson, 5 Ga. 390; Cambell v. Lynch, 106 S. E. 869 (W. Va. 1921). "Amendments to sworn answers will be allowed in ease of mistake, fraud, surprise, sCnd the discovery of new matter, but with great caution and difficulty. There is, however, no general rule, and the application is made to the discretion of the court, and each case depends very much on its own merits. "Where it is made to appear to the court upon oath, on an applica- tion to amend an answer, that the defendant intended to swear, when he first put in his answer, as he desires by the amendment to be per- mitted to swear, the amendment will be allowed." Martin v. Atkin- son, 5 Ga. 390. "A special case must, in general, be shown, before a defendant will be allowed to amend his answer; and when the application to amend is made after the opinion of the court and the testimony has indi- cated how an answer can be amend- ed so as to accomplish the purpose of the defendant, the unwillingness of the court to allow an amendment is increased." Williams v. Savage Mfg. Co., 3 Md. Ch. 418. "The discretion to allow amend- ments is sparingly exercised, and generally refused when thi're is un- reasonable delay in the application or tlie amendment introduces a new defense." 1 Beach, Mod. Eq. Pr., § 392. See 1 Whitehouse, Eq. Prac, §278. 189 Idem. Vandervere v. Reading, 9 K. J. Eq. 446; 1 Beach, Mod. Eq. Pr., § 391; 1 Whitehouse, Eq. Prac, §278. "" 1 Bart., Ch. Pr. (2d Ed.), 444; 1 Dan., Ch. Pr. (4th Am. Ed.), 778 and note; Burgin v. Giberson, 23 N. J. Eq. 403: Elder v. Harris, 76 Va. 187, 102; 1 Beach, Mod. Eq. Pr., §391. 191 Lamon v. McKee (D. C), 18 Wash. L. Rep. 446; Story, Eq. PI. (9th Ed.), §894: Ratliff v. Som- mers, 55 W. Va. 30, 46 S. E. 712. "2 Story, Eq. PI. (9th Ed.), § 902; Depue v. Sergent, 21 W. Va. § 367 Equity Procedure 450 swer as to important and materials matters, or to make essential changes in the grounds of defense already taken in the answer, amendments are admitted with great reluctance and caution,'" and only when it is manifest that the purposes of substantial justice require them."^ An amendment in such a ease will be allowed only when the court is satisfied that the reasons assigned for it are cogent and satisfactory; that the mistakes to be cor- rected or facts to be added are made highly probable, if not certain ; that they are material to the merits of the ease in con- troversy ; that the party has not been guilty of gross negligence ; and that the mistakes have been ascertained and the new facts have come to the knowledge of the party since the original an- swer was filed."^ But Green, J., in Depue v. Sargent,"' says, in the course of his opinion delivered in that case, that by reason of the provisions of the Code of West Virginia,'^' which pro- vides that when a bill is not sworn to the answer need not be verified by oath, as to unsworn answers, one of the principal reasons for the courts being so reluctant to permit answers to be at p. 343. "It is not error to allow 254; Sturm v. Fleming, 26 W. Va. a, defendant to file an amendea and at p. 59 ; JIcKay v. McKay, 33 W. supplemental answer, where the Va. 724, 11 S. E. 213; Fovitty v, matter set up therein is of such Poar, 35 W. Va. 70, 12 S. E. 1096; character that it is necessary that Goldsmith v. Goldsmith 46 W. Va. the same should be before the court 426, 33 S. E. 266; Miller v. Mitchell, for a proper determination of the 58 W. Va. 431, 52 S. E. 478; Loar matters involved in the suit, and is v. Wilfong, 63 W. Va. 306, 61 S. E. not contradictory of the matter al- 333; McSwegin v. Howard, 70 W. leged in the original answer." State Va. 783, 74 S. E. 948; Elder v. V. Central Pocahontas Coal Co., 83 Harris, 76 Va. 187; Tillinghast v. W. Va. 230, 98 S. E. 214. Champlin, 4 R. I. 128; Graham v. 193 1 Bart., Ch. Pr. (2dEd.),444; Skinner, 4 Jones Eq. (X. C.) 94. Bowen v. Cross, 4 Johns. Ch. (jST. The matter of amendment is so Y.) 375, 1 Law. Ed. 873; 1 Dan., much in the discretion of the court Cli. Pr. (4th Am. Ed.), 780; Depue that it may permit an answer to be v. Sergent, 21 W. Va. 326. amended even after the announce- IS'l 1 Beach, Mod. Eq. Pr., § 391, ment of the decision of the cause, and cases cited; 1 Whitehouse, Eq. Welch v. Arnett, 46 N. J. Eq. 543, Prac, § 278. 20 Atl. 48. See 1 Whitehouse, Eq. 195 Matthews v. Dunbar, 3 W. Va. Prac, § 278. 138; Wyatt v. Thompson, 10 W. Va. "6 21 W. Va., at p. 344. 645; Tracewell v. Boggs, 14 W. Va. Tirr W. Va. Code, 1913, c. 125, § 38. 451 Amendment § 367 amended or changed has been removed. Continuing, he says : "And no doubt answers may be amended or changed with the leave of the court now, under circumstances wherein they could not be formerly so amended or changed. But the court now ought not to permit answers to be changed or amended at the option of the defendant, and should only permit it when sub- stantial justice requires that it should be done." These observations of the learned judge would not apply to the practice in Virginia, as the answer there still must be under oath, unless waived by the plaintiff in his bill,i^^ or unless the answer be a mere formal one, as that of a guardian ad litem; ^'' and if the suit be for the sale of the land of a person under dis- ability, the answer of the guardian ad litem must be then upon oath.^o" As to the introduction of new allegations of facts, the courts seem more inclined to permit the amendment in cases where the proof of such facts depends upon written or documentary evi- dence, than when it depends upon oral testimony; and if the former have been omitted by accident or mistake, the courts strongly incline to permit the amendment. ^"■^ A further dis- tinction is made as to amendments with reference to admissions of matters of law, and matters of fact, the courts permitting amendments as to the latter, but not as to the former.^"^ If, after a defendant has filed his answer, events occur which he deems it necessary to bring into the cause for the purposes of 198 Throckmorton v. Tlirockmor- the court requires very cogent cir- ton, 86 Va. 768, 11 S. E. 289; Va. cumstanees, and such as repel the Code, 1904, § 3281. notion that the defendant designs to i»9 1 Bart., Ch. Pr. (2d Ed.), 411. evade the justice of the case, or to 200 Idem. set up new and ingeniously con- 201 Smith V. Bahcock, 3 Suran. trived defenses and subterfuges.'' 1 (U. S.) 583; India Rubber Comb Bart., Ch. Pr. (2d Ed.), 444. Co. V. Phelps, 8 Blatchf. (U. S.) =02 Story, Eq. PI. (9th Ed.), 85; 1 Bart., Ch. Pr. (2d Ed.), 444, §§897, 898; Bowen v. Cross, 4 citing Story, Eq. PI., §902; Depue .Jolins. Ch. (N. Y.) 375, 1 Law. Ed. V. Sergent, 21 W. Va., at p. 343. 873. "But to admit amended answers, But see, Gould v. Stafford, 101 letting in new facts and defenses Cal. 32, 35 Pac. 429, wherein it is wholly dependent on parol evidence, said that the court is not deprived § 367 Equity Procedure 452 his defense, and it is shown that they are necessary or essential to his defense, the answer may be amended by incorporating such matters into it.^"' If the matter to be introduced as -a de- fense has transpired since the commencement of the suit and the filing of the first answer, the amendment is made by what prop- erly is known as a supplemental answer.^"* So, where the plaintifE has amended his bill, the answer may me amended so as to meet the new or additional matter em- bodied in the bill as amended, and thus raise the proper issues thereon.^"^ It is doubtless true, as already perceived, that the great reluctance on the part of the courts in permitting amend- ments to be made to answers arose from the uniform practice of requiring all answers, as a rule, to be under oath, and this seems to have been the governing ground or reason for such reluc- tance.^"^ So that when an answer has not been sworn to, there seems to be no just reason against greater liberality touching the right to demand it, so as to meet all the requirements of the case, as the dictates of justice, under all the circumstances, may demand. The general rule against allowance of amended an- swers does not apply to amended answers setting up facts for of its discretion to allow an amend- defendant to put in a new or further ment to be made to correct an error answer to the amended bill, except or defect in an answer caused by a where the amendment is a mere mat- mistake of law made by defendant's ter of form which can not vary the attorney. right of the defendant. But if the 20" 1 Beach, Mod. Eq. Pr., § 39!); substance of the bill is amended in Steiner v. Scholze, 10.5 Ala. 607, 18 any manner, however trifling, the So. 79; Hennings v. Connor, 4 Bibb. defendant may put in anotlier an- (Ky.) 290; 1 Whitehouse, Eq. Prac, swer and mal^e an entirely new de- § 278, citing Ward v. Ward's Heirs, fcnse. An amendment of a bill for 50 W. Va. 517, 40 S. E. 472. discovery by making it one for dis- 204 Ward iv. Ward, 50 W. Va. 517, covery and relief justifies an amend- 40 S. E. 472. ment of the answer." 1 Beach, 205 Dyer v. Cranston Print W^orks Jlod. Eq. Pr., § 398. Co., 20 E. I. 143, 37 Atl. 632; Mor- ^ooMattliews v. Dunbar, 3 W. Va. ton' V.Thompson, 69 Vt. 432, 38 Atl. 138; Adam, Equity (8th Ed.), 346; 88. A recent author, discussing 1 Dan., Ch. Pr. (4th Am. Ed.), 777 this principle says: "Where a com- and note; 1 Beach, Mod. Eq. Pr , plainant amends his bill after an- §§ 394 et seq. swer it is a matter of right for the 453 Amendment § 368 the purpose of seeking affirmative relief.^"' But even an amended answer containing cross-bill matter must be filed with reasonable promptness, in the absence of an excuse for the delay.^"* § 368. Illustrations of defendant's rig'ht to amend his answer. An amendment to an answer in a partition suit, stating in a definite form how the defendant claims title which he has pre- viously claimed in a general form, is allowable.^"' "When there is a plain mistake as to facts, though not discovered by the de- fendant until after the argument of the cause, an amendment of the answer will be allowed, whether the answer be sworn to or not.^^° An answer will be allowed to be amended to correspond with proofs on a certain point which has been treated as regu- larly in the cause on the argument and in the consideration of the case.^'^^ An infant defendant, after an interlocutory decree has been rendered against him, may be allowed to amend his answer upon attaining his majority.^^^ After issue joined and the cause set for hearing, the defendant in chancery may be per- mitted, for good cause shown, to amend his answer and to plead by means of such amendment the statute of frauds and limita- 207 Crouch V. Crouch, 78 W. Va. guardian ad litem, the infant upon "^^I'J^.^ ^' ^^^' tr J -rn w ^"'^ arriving at full age, and before 208 McSwegin v. Howard, 70 W. , . , .,, , " ' Va. 783, 74 S. E. 948. See Campbell decree, is entitled as i Morris v. Peyton, 29 W. Va. 201, 11 S. E. 954. "If it is the decree, which any one of the parties intended to be entered, though it be not the decree which all the others intended to be entered, it is clearly not a clerical error but an error or mistake of the parties themselves, they differing in opinion as to the decree, which they had consented should be entered; or it may be a fraudulent preparation of a decree by one of the parties, when there was a perfect understanding as to §374 Equity Procedure 464 take is made in copying it into the record, whereby its meaning is materially changed, a clerical error is committed.^^^ So, if all the parties have agreed upon the substantial terms of a decree, and a mistake is made in computing the amount of the debt,^^' or the clerk enters the wrong amount in the record, though the original draft of the decree contains the true amount,^^^ each of these is a clerical error. A clerical error may further be defined to be any mistake, oversight, omission or neglect on the part of the clerk in entering up a decree or judgment in the order book.^^^ But a clerical error can be corrected only from some- thing which appears in the pleadings, record or proceeding of the cause, or a writing of some kind therein, or upon the face of the decree itself.^^^ It can not be shown by depositions subse- quently taken in the cause.^^'' what consent-decree was to be en- tered. In neither of these cases, as we have seen, can the court correct such a decree by any order made in the cause." Idem. Such a decree can be set aside only by an original bill in a new suit. Law V. Law, 55 W. Va. 4, 46 S. E. 607: Prince's Admr. v. McLemore, 108 Va. 269, 61 S. E. 802. 252 Morris v. Peyton, 29 W. ,Va. 201, 11 S. E. 954. 253 Idem. 254 Shumate v. Crockett, 43 W. Va. 491, 27 S. E. 240; Bank v. Shirley, 26 W. Va. 563. 2o5 Digges V. Dunn, 1 Munf. (Va. ) 56, 62. 25(;Manion v. Fahy, 11 W. Va. 482; Morris v. Peyton, 29 W. Va. 201, 11 S. E. 954: Bank v. Shirley, 26 W. Va. 563: Triplett v. Lake, 43 W. Va. 428, 27 S. E. 363; Shu- mate V. Crockett, 43 W. Va. 491, 27 S. E. 240; Havenport v. Kirk- land, 156 III. 169, 40 N. E. 304 Dillard v. Dillard, 77 Va. 820 Shipman v. Bailey, 20 W. Va. 140 Henly v. Menefee, 10 W. Va. 771. In Frink v. Schroyer, 18 III. 416, the names of some of the defendants seem to have been misstated in the judgment, and the court, in holding that such errors were amendabk", said: "The parties to the action, and between whom the issue was tried, appear from the declaration and plea, and the misstatement of the surnames of some of these parties defendant in the subsequent record and judgment order is evi- dently the mere clericjjl mistake of the officer, the clerk, in entering of record the proceedings and judg- ment of the court. This is apparent from inspection of the record, and the mistake is amendable by the record itself, at any time, either in the court where the record remains, or in any other court to which the record may be taken by appeal or writ of error. Such is the letter and spirit of our Statute of Amend- ments and Jeofails." See also, Davenport v. Kirkland, 156 111. 169, 40 N. E. 304. 257 Morris v. Peyton, 29 W. Va. 201, 11 S. E. 954. 465 Amendment §375 § 375. Aa to the amendment of a consent-decree. A consent-decree can not be corrected by any amendment or alteration without the consent of all the parties to the cause, even at the term at which it is entered, except as to clerical errors, ^^* and it makes no difference whether such decree be final or interlocutory.^^' 258Manion v. Fahy, 11 W. Va. 482; Morris v. Peyton, 29 W. Va. 201, 11 S. E. 954: Seller v. Union Mfg. Co., 50 W. Va. 208, 40 S. E. 547 ; McGraw v. Trader's Nat. Bank. 64 W. Va. 509, 63 S. E. 398; Prince's Admr. v. McLemore, 108 Va. 269, 61 S. E. 802. "During the term of the court, at which a decree is entered, it is completely under the control of the court, and may on motion, or at the suggestion of the court with- out motion, be modified or annulled. Burch V. Scott, 1 Gill. & J. 398. A decree procured by fraud may be so set aside during the term of the court, at which it was made, but not afterwards. See Doss v. Tyack, 14 How. U. S. R. 297. And the same rule would apply to a consent- decree: but from the very nature of a consent-decree, it can not be al- tered or modified, except by consent, unless there has been a clerical mis- take, for though the court be satis- fied that the parties had formerly agreed to have a decree, in sub- stance such as the modified one en- tered, which, by a mistake other than clerical, was not entered, but a different decree entered, how can the court enter this modified decree as a consent-decree, when one of the parties is present and protests against its bei^g entered as by his consent? The entry of a consent- decree is a statement on the record, not that theretofore the parties had agreed to enter such a decree, but that they now (when the decree is entered) consent to its entry. And if they do not, when it is to be en- tered, consent to the court's enter- ing it, it can not be so entered. Neither could the court enter such modified decree generally, as a de- cree made by the court without the consent of parties for such a decree can only be entered on the merits of the case according to the judg- ment of the court; and this modi- fied decree is not generally such a decree, but is one only which the parties formerly agreed to, and generally is not sustained by the facts in the record, and upon the propriety of which the court has never exercised its judgment. A case might arise, when a party might be liable to a common-law action for refusing to carry out his agreement, and objecting to the en- tering of the consent-decree as modi- fied. But, except by consent of all parties, the court can not modify a consent-decree, except in the case where the clerk, in entering the de- cree from the draft furnished him, has made a mistake. Such a mis- take would formerly have been cor- rected by bill of review, or by bill in the nature of a bill of review, according to the English practice or here by a bill of review, if the de- cree was final, or a petition for a rehearing, if the decree was inter- locutory. 8 Anon.; 1 Ves. 93; and Atkinson v. Marks, I Cow. 693." Manion v. Fahy, 11 W. Va. 482. 259 Armstrong v. Wilson, 19 W. Va. 108. CHAPTER XIX PLEAS IN BAR § ?76. Classineation of pleas in bar. § 377. Plea of the statute of limitations, § 378. Who may plead the statute of limitations. § 379. Plea of the statute of limitations by one of two or more joint de- fendants. § 380. The statute of limitations in cases of fraud and trust. — When it begins to run. S 381. The statute of limitations as to setting aside conveyances or other transactions to the prejudice of the rights of creditors. 5 382. Period of time in which the right of action or suit is barred by the statute of limitations. § 383. Cases not specifically provided for that come within the general five-year period of the statute of limitations. § 384. Cases not specifically provided for, in which the period of limitation is one year. § 385. When the statiite of limitations begins to run against the right to sue. § 386. When the statute of limitations does not apply. I 387. As to presumption of payment from lapse of time. § 388. Laches as a defense in equity. § 389. What will relieve from the bar of the statute of limitations. § 390. What will relieve from the bar of the statute of limitations — ^further- considered New promise. § 391. What will relieve from the bar of the statute of limitations — further considered Obstructions to plaintiff's right of suit. § 392. What will relieve from the bar of the statute of limitations — further considered Deduction of certain periods of time. § 393. What will relieve from the bar of the statute of limitations ^further considered. — One year after abatement of suit. § 394. As to the running of the statute of limitations against the state and municipalities. § 395. Burden of proof as to the statute of limitations. § 396. Plea of the Statute of Frauds. § 397. Plea of any other statute. § 398. Pleas c' matter of record Of former judgment. § 399. Pleas of matter of record continued Of former judgment of a court of a foreign state or country. § 400. Of pleas of matter of record continued Of former decree. 466 467 Pleas in Bab § 376 I 401. Of pleas of matter of record continued Of adjudication of a court other than a court of law or equity. 5 402. As to the identity of the parties to the former action or suit, and the effect of the judgment or decree therein upon their rights in a second suit. § 403. Essential allegations of a plea of fo'-mer adjudication, § 404. Pleas in bar created by matter in pais. — A release. I 405. Pleas in bar created by matter in pyis further considered. — A stated account. § 406. Pleas in bar created by matters in pais further considered. — A settled account. § 407. Pleas in bar created by matters in pais further considered. — An award. § 408. Pleas in bar created by matters in pais further considered. — That the defendant is a purchaser for valuable consideration. § 400. Pleas in bar created by matter in pais further considered. — Title in the defendant. §410. Pleas in bar created by matter in pais further considered. — Release of surety. I 411. Essential requisites of a plea in bar. I 412. Distinction between a plea and an answer. § 413. When an answer must accompany the plea. § 414. The frame of a plea. § 415. When a plea in bar may be filed. § 416. How the sufficiency of a plea in bar or in abatement may be deter- mined. § 417. How the issue is formed on a plea in equity, and the scope of the issue. § 418. Burden of proof on the issue joined on a plea in equity. § 419. How the issue joined upon «■ plea is tried. § 376. Classification of pleas in bar. The usual classification of pleas in bar divides them as fol- lows: (1) pleas founded on some bar created by statute; (2) pleas founded on matter of record; (3) pleas founded on some matter of fact not of record.^ These different classes are thus subdivided; pleas of the first class, into those of (a) the statute of limitations; (h) the statute of frauds; (c) and any other statute creating a bar.^ Pleas of the second class are those which 1 Story, Eq. PI. (Oth Ed.), § 740; = Story, Eq. PI. (0th Ed.), § 750; 1 Dan.. Ch. Pr. (4th Am. Ed.), 638; Shipman, Eq. PI., 46.5; 1 Dan., Ch. 1 Beach, Mod. Eq. Pr., §301; Ship- Pr. (4th Am. Ed.), 639, 655, 658. jnan, Eq. PI., 464, 465. §377 Equity Procedure 468 rely upon one of the following matters of defense: (a) a judg- ment rendered in a court of law; (6) a judgment or decree of a foreign court; (c) a decree of a court of equity.' Pleas of the third class, which depend upon matter in pais, oppose the bill upon one of the following grounds: (a) a release; (6) a stated account; (c) a settled account; (d) an award; (e) that the de- fendant is a purchaser for a valuable consideration ; (/) title in the defendant.* § 377. Plea of the Statute of Limitations. In West Virginia, as we have seen,^ if it appear on th-e face of the bill that the claim is barred by the statute of limitations, the defense may be raised by demurrer, and this is the rule generally obtaining in a court of equity.^ But the rule in Vir- sShipman, Eq. PI., 468; Story, Eq. PI. (9th Ed.), §778; 1 Dan., Ch. Pr. (4th Am. Ed.), 658-665. iShipman, Eq. PL, 472; Story, Eq. PI. (9th Ed.), §795; 1 Beach, Mod. Eq. Pr., § 301 ; 1 Dan., Ch. Pr. (4th Am. Ed.), 665-680. s Ante, § 327. oldem. The Virginia courts are committed in some of their deci- sions to the statement found in the course of their opinions that the general rule is otherwise. Thus in Hickman v. Stout, 2 Leigh. (Va.) 10, Judge Carr says: "There is no rule better established than that one can not avail himself of the statute of limitations in a suit in equity without pleading it. This was admitted as the general rule; but the apnellant's counsel argue that this case was taken out of it, because neither the bill nor the ac- count exhibited with it showed any items of more than five years standing. If this were the fact, 1 do not tliink it would have entitled the defendant to avail himself of the statute without pleading it, however he might have taken ad- vantage of the defect in another way ; but it appears on examina- tion, that the counsel is mistaken as to the fact; the account exhibited with the bill, the account which Hickman said in his answer he had seen, commences as early as 1814." In Tazewell's Exr. v. Whittle's Admr., 13 Graft. (Va.) 344, Judge Moncure says: "It is certainly true, as a general rule, that this defense must be made by plea or answer; and the rule applies as well to a, court of equity as a court of law." The same doctrine is recognized in Colvert v. Millstead's Admx., 5 Leigh. (Va.) 88; Smith v. Pattie, 81 Va. 665; Gibson v. Greene's Admr., 89 Va. 526, 16 S. E. 661. Barton, in the first volume of his Chancery Practice (2(' Ed., p. 83), after reviewing the Virginia cases, deduces from them the following conclusions: "That, although the bill states on its, face a case which 469 Pleas in Bar §377 ginia is otherwise.' In that state the statute of limitations must be relied on by plea or answer.* If it does not appear on the face of the bill that the plaintiff's demand is barred by the statute of limitations, all the authorities agree that it may be shown by plea.^ The right to make the defense by demurrer, when the bill shows the claim to be barred, is not exclusive, as the defendant may rely upon his plea instead of demurrer, if he so desires ; ^'' or he may make such defense by answer, without resorting to a plea,^' which, indeed, is the usual mode of plead- ing the statute of limitations.^^ But the defendant must in some is barred of relief by the statute of limitations, or by the rules of equity analogous thereto, yet never- theless no such defense is available unless it be set up in some vi^ay, by plea or answer, so as to apprise complainant of the intention of the defendant to rely on it." In Hubble . . Toff, 98 Va. 646, 37 S. E. 277, Keith, P., in the course of his opinion, says: "The prac- tice that obtains in other jurisdic- tions may be better and more con- sonant to reason, but we are bound by the law as established by the cases which we have just cited." 7 See cases last above cited, and the cases cited in foot-notes to § 327, ante. 8 Idem. The defense of laches, however, may be asserted by demur- rer. Hogg V. Shields, 114 Va. 403, 76 S. E. 034. 9 Kane v, Bjoodgood, 7 Johns. Ch, (N. Y.) 00, 11 Am. Dee. 417, 2 L. Ed. 231, and the numerous cases cited in the note; Lansing v. Starr, ;2 Johns. Ch. (N. Y.) 150, 1 L. Ed. 327, and the c.-ses cited in the note; Shipman, Eq. PI., 465; 1 Beach, Eq. Pr.. § .307; Story, Eq. PI. (9th Ed.), 5 751; 1 Dan., Ch. Pr. (4th Am. Ed.), 639 et seq. 10 Jackson v. Hull, 21 W. Va. 601; Humbert v. Trinity Chiirch, 7 Paige Ch. (N. Y.) 195, 4 L. Ed. 121, and note; Talbott v. Woodford, 48 W. Va. 440, 37 S. E. 580. 11 Van Hook v. Whitlock. 7 Paige Ch. (N. Y.) 373, 4 L. Ed. 104, cit- ing in the note Ruckman v. Decker, 23 N. J. Eq. 289; Piatt v. Vattier, 9 Pet. (34 U. S.) 405, L. Ed. 173; Boone v. Chiles, 10 Pet. (35 U. S.) 177, L. Ed. 388; Humphrey v. Spencer, 36 W. Va. 11, 14 S. E. 410; Talbott v. Woodford, 48 W. Va. 440, 37 S. E. 580; Findley v. Cunningham, 53 W. Va. 1, 44 S. E. 472; Emmons v. Hawk, 62 W. Va. 526, 59 S. E. 519. 12 1 Bart.. Ch. Pr. (2d Ed.), 399. "The same strictness of pleading is not required in equity as at law. It is not common to plead the stat- ute specially or formally in equity; but only to rely upon it, in general terms, m the answer. The only rea- son for requiring the defense to be made by plea or answer is that the plaintiff may have an opportunity, if he can, to take th3 case out of the operation of the statute." Taze- well V. Whittle, 13 Gratt. (Va.) 344. §378 Equity Procedure 470 manner raise the defense ; ^' or, when the ease is before a com- missioner, in proper cases, it may be, without formally pleading it, relied on in any way that it can be brought to the commis- sioner's attention, as by an exception to his report.^'' § 378. Who may plead the Statute of Limitations. As a general rule, the defense of the statute of limitations is a personal privilege to be exercised by the debtor, and can be waived or asserted by him at his option. ^^ But to this rule there are some exceptions.^" Thus, where the principal debtor could have pleaded it, his privies in estate, as his personal representa- tives, heirs at law, devisees, vendees, assignees or mortgagees of the property sought to be charged or affected by the suit, may also plead it.^' But a mere stranger can not do so,-'^ even though 13 Gibson V. Green, 89 Va. 524, 16 S. E. 661: Tazewell v. Whittle. 13 Gratt. (Va.) 344; Smith v. Hutchinson, 78 Va. 683; Hickman V. Stout, 2 Leigh (Va.) 6; Col vert V. Millstead, 5 Leigh (Va.) 88; Riddle v. McGinnis, 22 W. Va. 2.53; Humphrey v. Spencer, 36 W. Va. 11, 14 S. E. 410; Smith v. Brown, 44 W. Va. 342, 30 S. E. 160. 14 Woodyard v. Polsley, 14 W. Va. 211; Conrad v. Buck, 21 W. Va. 396 ; Carter v. Howard, 39 Vt. 106 ; Partridge v. Mitchell, 3 Edw. Ch. (N. Y.) 180, 6 L. Ed. 61; Leith v. Carter, 83 Va. 889, 5 S. E. 584; Sel)orn v. Beckwith, 30 W. Va. 774, 5 S. E. 450. "In a suit by a creditor against an expired cornoration, where the corporation in its answer pleads a set-off against the plaintiiT's de- mand, the plaintiff may file a plea of the statute of limitations before the commissioner, or in any other manner make that defense before the commissioner taking an account in the case." Stiles v. Laurel Fork Oil & Coal Co., 47 W. Va. 838, 35' S. B. 986. An examination of the cases cited will show that the instances where- in the defense has been held proper before a commissioner in the first instance are nearly always cases where the rights and priorities of creditors are in question, matters which are usually put in issue be- fore the commissioner and not by the original pleadings. 15 Clayton v. Henley, 32 Gratt. (Va.) 65; McCartney v. Tyrer, 94 Va. 198, 26 S. E. 419; Smith v. Hutchinson, 78 Va. 683; Welton v. Boggs, 45 W. Va. 624, 32 S. E. 232, 72 Am. St. Rep. 833; McClaugherty V. Croft, 43 W. Va. 270, 27 S. E. 246. S^e also, B. & 0. R. Co. v. Vanderwerlcer, 44 W. Va. 229, 28 S. E. 829. I" See same citations. 17 McClaugherty v. Croft, 43 W. Va. 270, 27 S. E. 246; Werdenbaugh V. Reid, 20 W, Va. 588; Hill v. Hilliard. 103 N. C. 34, 9 S. E. 639; Walker v. Burgess. 4i W. Va. 399, 30 S. E. 99; Woods v. Douglass, 52 W. Va. 517, 44 S. E. 234. 18 Wood Lim. Ac. 80. 471 Pleas in Bab §378 he be a creditor of the defendant in a suit to enforce the liens by judgment against his estate, and ascertain and fix their pri- orities ; ^^ unless it be such a suit brought against the estate of a decedent, in which case one creditor may avail himself of the statute of limitations as against the demand of another cred- itor.^" This exception is put upon the principle that, inasmuch as the principal debtor is dead and can not plead the statute of limitations, the law imposes the duty upon his personal repre- sentative to do so ; and if he fails or refuses to make this defense, the creditors themselves may do so as against the claims of each !» See cases cited in note 15, supra. 20 Woodyard v. Polsley, 14 W. Va. 211. We liere append the note of Brannon, P., made to the opinion of English, J., in Welton v. Boggs, 45 W. Va. 624, 32 S. E. 232, 72 Am. St. Rep. 833: "In MeClaugh- erty v. Croft, 43 W. Va. 270 (27 S. E. 246), we held that parties privy in estate with the debtor, as heirs, alienees, or mortgagees, owning or entitled to charge the very land, might plead the statute of limitations against other cred- itors, to defend their estates. I refer to former cases, leaving open the question involved in this case, whether one having a mere general lien, not being a specific lien on the land, could do so. And I put it as a. quaere in the Croft case. Our cases settle that creditors of a dead man, or of an insolvent partnership, may plead against other creditors the statute, there being a fund be- longing to all. But unless we are ready to abolish the old rule, that limitation is a plea made only for the debtor, which he may waive, I do not see ho\.' we can hold other- wise than as Judge English holds in this case. The statute pleads the bar in favor of a dead man's estate, and therefore creditors may do so, but no statute compels a liv- ing debtor to plead it. I make this note to call attention to the Croft case and Conrad v. Buck, 21 W. Va. 306, in addition to Lee v. Feemster, cited by Judge English." The decision of the court in Wel- ton V. Boggs, 45 W. Va. 624, 32 S. E. 232, 72 Am. St. Rep. 833, seems to be opposed in its general con- clusions to the case of Conrad v. Buck, 21 W. Va. 306, 410 et seq. After reviewing several cases, among which are Feamster v. Withrow, 9 W. Va. 296; Woodyard v. Polsley, supra; Weidenbaugh v. Eeid, 20 W. Va. 588; Crawford v. Carper, 4 idem 56, 71; Snyder, J., in Conrad V. Buck, concludes his opinion on this branch of the case as follows : "Without intending to decide whether or not in all cases one cred- itor may avail himself of the bar of the statute of limitations against the claim of another creditor, T am of opinion, upon both reason and authority, that in suits brought for the liquidation and settlement of insolvent partnerships when the fund is insufficient to pay all the debts and the contest is wholly be- §379 Equity Procedure 472 other." In Virginia, however, the rule is that where a court of equity has taken possession of the estate of a debtor for the pur- poses of distribution, and is proceeding to ascertain the debts and incumbrances existing against and upon such estate, to en- able it to administer and distribute the assets, any creditor in- terested in the funds is permitted to interpose the defense of the statute of limitations against a cocreditor.^^ § 379. Plea of the Statute of Limitations by one of two or more joint defendants. In a suit asserting a joint demand against two or more de- fendants in equity, the plea of the statute of limitations filed by tween the creditors of such partner- ship, and the partners do not ap- pear in the cause in any manner, one creditor should be permitted to avail himself of the bar of the stat- vite of limitations against the claims of other creditors in such suit in a court of equity in any manner allowed by the practice in such courts, whetlier it be by plea, answer, demurrer or exceptions to a commissioner's report made in the cause. In such cases the fund is the matter in controversy, and is generally in the hands of the court or the surviving or settling part- ners who hold it as trustees for the benefit of creditors. The reasons which permit the creditors of the estate of a decedent to rely on the statute of limitations, or in any other legal mode to contest the claims of each o+her, it seems to me, apply with equal force to cases of this character. I, therefore, think and hold that the appellant here has the equitable right to rely on the statute against the claims of the appellees, Latrobe and Dobbin, to the same extent and with equal ef- fect as if it had been relied on by the members of the partnership." But the facts involved in the two cases are entirely different; and it is not believed that the specific rul- ing of Conrad v. Buck is overruled by the general conclusions in Wel- ton V. Boggs. Plence, the former case may be taken as recognizing an additional exception to the gen- eral rule. 21 Woodyard v. Polsley, 14 W. Va. 211; Welton v. Boggs, 45 W. Va. 624, 32 S. E. 232, 72 Am. St. Eep. 833. With a living man it is alto- gether different. The law does not compel him to plead the statute. He may plead it or not as he pleases. Woodyard v. Polsley, supra. See opinion in Welton v. Boggs, supra. 22 McCartney v. Tyrer, 94 Va. 198, 26 S. E. 419, citing the following authorities: 1 Bart., Ch. Pr., 85; Shewen v. Vanderhest, 1 Euss. and M. 347; Owens v. Dickenson. Craig and P. 56; Tazewell v. Whittle, 13 Gratt. (Va.) 345; Woodyard v. Polsley, 14 W. Va. 211; "werden- baugh V. Eeid, 20 W. Va. 588; Post V. Mackall, 3 Bland. (Md.) 486,499; Partridge v. Mitchell, 3 Edw. Ch. (N. Y.) 180, and Grattan v. Wig- gins, 23 Cal. 25. Thio doctrine has been reaffirmed in the more recent cases of Callaway v. Saunders, 99 Va. 350, 38 S. E. 182; Monk v. Exposition, etc., Corp., Ill Va. 121, 68 S. E. 280. 473 Pleas in Bar §380 one defendant inures to the benefit of all; unless there is somt- thing in the ease that makes it peculiarly available to the de- fendant pleading it.^' And this is so even where the bill is taken for confessed as to the defendants not pleading it.^^ § 380. The Statute of Limitations in cases of fraud and trust — When it begins to run. Where relief is sought on the ground of fraud, as a general rule the statute^ does not begin to run until the party injured has discovered it, if he is free from fault or negligenee.^^ But 23Ashby v; Bell, 80 Va. 811. 21 Idem. 25 1 Beach, Mod. Eq. Pr., § 257 ; Brown v. Brown, 44 S. C. 378, 22 S. E. 412; Eowe v. Bentley, 29 Gratt. (Va.) 756; Massie v. Heis- kell, 80 Va. 789; Rice v. White, 4 Leigh (Va.) 474; Hall v. Graham, 112 Va. 560, 72 S. E. 105; Grove v. Lemley, 114 Va. 202, 76 S. E. 305; Newberger v. Wells, et al., 51 W. Va. 624, 42 S. E. 625; Plant v. Humphries, 66 W. Va. 88, 98, 66 S. E. 94, 26 L. R. A. (N.S.) 558. In the cases of fraud the author- ities are conflicting as to whether at law the statute begins to run from the commission of the fraud or from its discovery. Angell on Lim., §§183- 189; Callis v. Waddy, 2 Munf. (Va.) 511; Rice v. White, 4 Leigh (Va.) 474; 1 Rob., Prac. (Old Ed.), pp. 82, 87, 110. In West Virginia, at law, affirma- tive acts of concealment by the de- fendant are necessary to postpone operation of the statute. Boyd v. Beebe, 64 W. Va. 216, 61 S. E. 304, 17 L. R. A. (N.S.) 660. In equity, however, it would seem to be well settled that the statute begins to run only from the dis- covery of the fraud. Shields, Admr., etc., of Waller and Others v. Ander- son, Admr. of Byrd, etc., 3 Leigh (Va.) 729; 2 Rob., Prac. (Old Ed.), 251, 252. "The question often arises," says Judge Story, "in eases of fraud and mistake and acknowledgment of debts, and of trusts and charge's on lands for payment of debts, u nder what circumstances and ait -.^hat time the bar of the statute of iimi- tations begins to run. In general, it may be said that the rule of courts of equity is, that the cause of action or suit arises when and as soon as the party has a right to apply to a court of equity for relief. In cases of fraud or jnis- take it will begin to run from the time of the discovery of such fraud or mistake and not before.'' 2 Story, Eq., § 1521d. In the leading case of Kane \. Bloodgood, 7 Johns. Ch. (N. Y.) 90, 122, Chancellor Kent says that fraud, as well as trust, is not with- in the statute, and that it is well settled that the statute does not run until the discovery of the fraud, for the title to avoid it does not arise until then, and pending the conceal- ment of it, the statute ought not, in conscience, to run. §380 Equity Proceduee 474 the later West Virginia eases seem to restrict the rule, basing the reason for postponement of operation of the statute pri- marily upon fraudulent concealment by the defendant, with the addition, of course, of ignorance on the part of the plaintiff. At least, this is true where the statute of limitations is applied by analogy in equity ; and, it would seem, in general.^' The statute of limitations does not begin to run against an express trust until the duties of the trustee are ended; or until the trust is repudiated by him, and notice of such repudiation has been brought to the cestui que trust in such a manner as to call upon him to assert his rights in reference to the trust.^'' Indeed, it has been said that cases of 'fraud, trust and mistake are not Such is, without controversy, the settled doctrine of courts of equity. Angell on Lim., § 183, and cases cited in notes, § 30: 2 Perry on Trusts, § 861. See Vaslion >•. Barrett, 00 Va. 344, 38 S. E. 200: Craufiird v. Smith, 93 Va. 623, 23 S. E. 235 In Craufiird v. Smith, supra, Buchanan, J., in the course of his opinion, says: "Neitlier has there been sucli laches in the prosecution of the appellant's claim as should deprive him of the right to recover. Ko lapse of time, no delay in bring- ing the suit, however long, will de- feat the remedy in cases of fraud or mutual mistake, provided the in- jured party, during all this inter- val, was ignorant of the fraud or mistake without fault on his part. The duty to commence proceedings to assert his rights can only arise upon the discovery of the fraud or mistake, and the possible effect of his laches will begin to operate only from that time." The following authorities are cited: 2 Pom., Eq. ,Tur. (2d Ed.) §917, and note 2: Rowe V. Bentley, 29 Gratt. (Va.) 762, 76S; Massie's Admr. v. Heis- kell's Trustee, 80 Va. 789, 790, 805; 1 Dan., Ch. Prac. {4th Ed.), 645; Kerr, Fraud and M, 435. 436. 26 Newberger v. Wells et al., supra; Plant v. Humphries, supra; Craig V. Gauley Coal Land Co., 73 W. Va. 624, 80 S. E. 945, emphasiz- ing exceptions to the general rule of Craufurd v. Smith, supra; Teter v. Moore, 80 W Va. 443, 401. 93 S. E. 342. 27Gapen v. Gapen, 41 W. Va. 422. 23 S. E. 579; Jones v. Lemon, 26 W. Va. 629: Rowe v. Bentley, 29 Gratt. (Va.) 756; Ruckman v. Cox, 63 W. Va. 74, 59 S. E. 760; Camp- hell V. O'Neill, 69 W. Va. 459, 72 S. E. 732; Russell's Exrs. v. Pass- more, 127 Va. 475, 103 S. E. 652. "In cases, however, of direct or express trusts, such as are known and cognizable only in courts of equity, while they are subsisting, as between trustee and cestui que trust, the statute of limitations has no application, and no length of time is a bar. 2 Perry on Trusts, § 863. It has been held, however, that if a trustee repudiates the trust by clear and unequivocal acts or words, and claims thenceforth to hold the estate as his own, not sub- 475 Pleas in Baas §38: within the statute of limitations.^' And hence, except under the exceptions already mentioned, a trustee can not plead the stat- ute of limitations against the claim of his cestui que trust, or of persons claiming under him.^' § 381. The Statute of Limitations as to setting aside convey- ances or other transactions to the prejudice of the rights of creditors. It is provided hy statute in the Virginias^" that a suit to set aside a eonveyanee, transfer or other act of the debtor, that is voluntary, and simply because it is voluntary, must be brought within five years after it is made ; that is, within five years from the date of the execution of the deed or other act contemplated ject to any trust, and such repudia- tion and claim are brought to the notice or knowledge of the cestui que trust in such manner that he is called upon to assert his equi- table rights, the statute will begin to run from the time that such knowledge is brought home to the cestui que trust, but the adverse holding must be clear and brought home to tlie cestui que trust beyond question or doubt; and it is said that the rule applies, when the rela- tion of trustee and cestui que trust is absolutely ended, whether by breach of trust or otherwise. 2 Perry on Trusts, §864; Hill on Trustees (side p.) 264 et seq., and notes." Rowe v. Bentley, supra. See Ruckman v. Cox, supra. But tlie trust must be an express one, and not an implied or construct- ive trust. Reccher v. Foster, 51 W. Va. 605, 42 S. K. 647: Bedford v. Clark, 100 Va. 115, 40 S. E. 630. However, "if a trust is established, whether it be an express or con- structive one, and there is a breach of it, or an equitable cause of action fnr an 7 reason accrues under it, ihe statute of limitations has no appli- cation and does not run against the cestui que trust, unless his demand is of such a nature that he could sue upon it in a court of law." Depue V. Miller, 65 W. Va. 120, 131, 64 S. E. 740, 23 L. R. A. (X.S.) 775. See Keller v. Washington, 83 W. Va. 659, 08 S. E. 880. 2sMassie v. Heiskell, 80 Va. 789. But this statement must be quali- fied, even under the Virginia deci- sions: and especially in West Vir- ginia. See cases cited in the foot- notes, supra. 2« Redwood ^. Reddick, 4 Munf. (Va.) 222. But to prevent length of time from barring a claim on the ground tliat tl:e possession of defendant was fiduciary, sucli possession must have been fiduciary as to the plain- tilT, or those under wliom he claims. Its tilng fiduciary as to any other person is not sufficient. Spotswood V. Danl)ridge et ah, 4 H. and M. (Va.) 130. 30 W. Va. Code, 1013, c. 104, § 14; Va. Code, 1904, § 2929. [17] §381 Equity Procedure 476 by the statute.'^ This statute has frequently been construed and the courts have uniformly enforced this limit in suits where it has appeared that the conveyance was upon a voluntary con- sideration untainted by actual fraud.^^ But this limitation against the maintenance of a suit to avoid it can not be invoked to protect the conveyance, even if it be voluntary, where it is shown to have been made with the intent to hinder, delay and defraud the creditors of the grantor ; ^' but, of course, the bur- den of establishing fraud, as in other cases, is upon the party assailing the conveyance,'* and the fraud in such a case must be actual '^ as contradistinguished from legal fraud, or merely fraud in contemplation of law.'* As to the right of a creditor to attack a conveyance as fraudu- lent in fact, there is no statute of limitations.'^ But it must not be concluded from this that the time within which a suit must 31 Biekle v. Chrisman, 76 Va. 678; Hunter v. Hunter, 10 W. Va. 321; Himan v. Thorn, 32 W. Va. 507, 9 S. E. 930; McCue v. McCue, 41 W. Va. 151, 23 S. E. 689; Scraggs v. Hill, 43 W. Va. 162, 27 S. E. 310; Sheppards v. Turpin, 3 Gratt. (Va.) 373; Thorn v. Sprouse, 46 W. Va. 225, 33 S. E. 99. 32 Welsh V. Solenhcrger, 85 Va. 441, 8 S. E. 91 ; Hunter v. Hunter, 10 W. Va. 321; Himan v. Tliorn, 32 W. Va. 507, 9 S. E. 930; Glas- cock V. Brandon, 35 W. Va. 84, 12 S. E. 1102: Scraggs v. Hill, 43 W\ Va. 162, 27 S. E. 310; McCue v. McCue, 41 W. Va. 151, 23 S. E. 689; Shejjpards v. Turpin, 3 Gratt. (Va.) 373; Biekle v. Chrisman, 76 Va. 678; Laidley v. lieynolds,' 58 W. Va. 418, 52 S. E. 405: Hawkins V. Blake, 69 W. Va. 100, 71 S. E. 191. 33 Hunter v. Hunter, 10 W. Va. 321; Himan v. Thorn, 32 W. Va. 607, 9 S. E. 930; Harner v. Huff- man, 52 W. Va. 40, 48, 43 S. E. 132. However, both the grantor and the grantee must have been participants in the fraud to prevent the statute from applying. Hawk- ins V. Blake, 69 W. Va. 190, 71 S. E. 191. See Graham Grocery Co. V. Chase, 75 W. Va. 775, 84 S. E. 785. 34 Himan v. Thorn, 32 W. Va. 507, 9 S. E. 930; Edwards Mfg. Co. v. Carr, 65 W. Va. 673, 64 S. E. 1030. 36 Hutchinson v. Boltz, 35 VV. Va. 754, 14 S. E. 267; McCue v. McCue, 41 W. Va. 151, 23 S. E. 689; Scraggs V. Hill, 43 W. Va. 162, 27 S. E. 310; Graham Grocery Co. v. Chase, 75 W. Va. 775, 84 S. E. 785. 3" Glascock V. Brandon, 35 W. Va. 84. 12 S. E. 1102; rMcCue v. McCue, 41 W. Va. 151, 23 S. E. 689. The policy and wisdom of the statute under discussion were ably considered by Holt, P., in McCue v. McCue, supra. 37 Bunisardner >-. Harris, 92 Va. 188, 23 S. E. 229. 477 Pleas in Bar §382 be brought to set aside a fraudulent conveyance, transfer or in- cumbrance is without limit, as the principles of laches will pre- clude relief in such ease "when the party asking it has for a very long time known his rights, and^ has slept upon them, as well when he has suffered from fraud as from any other cause."'* § 382. Period of time in which the right of action or suit is barred by the Statute of Limitations. At common law there was no limit to the time within which an action might be brought, except the single instance of a fine with proclamations.*' The want of a limitation was supplied by a doubtful doctrine of presumption,^" and also by wager of law,** which operated somewhat as a check upon the assertion of stale demands.*^ But nevertheless these defenses were so in- effectual against the institution of suits upon stale demands, and their assertion became so great and intolerable, that during the reign of Henry VIII laws were enacted limiting the right of action in all cases.*^ These laws were superseded by those passed in the time of James I,** which have been adopted in practically all of the states of the union.*^ The law limiting the time within which an action or suit may be brought is purely of statutory creation, and as in force in the Virginias in the more general instances will be found in the statutes to which reference is 38 1 Bart., Ch. Pr. (2d Ed), 100, « /dew. A learned author, com- and authorities cited. For a dis- menting upon tlie wisdom and pol- eussion of the doctrine of laches, icy of statutes of limitations, in a vide Hogg, Eq. Princ, §§ 298-300a. work of deserved repute, says: 39 Wood, Limitation of Actions, 2. "Statutes of limitations were for- 40 Idem, note 1. merly regarded with little favor, " By this method a defendant and tlie courts devised numerous was allowed to clear himself by his theories and expedients for their own oath and that of eleven com- evasion; but latterly tliey are con- purgators, and it applied only to sidered as beneficial, and resting on the actions of debt and detinue. principles of a sound public policy, ^- Wood, Lim. Ac, 4. and as not to be evaded except by 43 Co. Litt., 115a. the methods provided therein. In- i^Woodj Lim. Ac, 5. deed, they are now termed statutes of repose, and are regarded as es- §382 Equity Procedure 478 made ia the foot-notes.'"' While these statutes strictly apply to actions at law, courts of equity follow the law in this respect and, by analogy, or in obedience to the statutory enactment, apply the statute of limitations as do courts of law; so that after a bar has been prescribed by statute to the legal remedy, the remedy sential to the security of all men; and opinion, professional and gen- eral, lias been in favor of a contin- uous augmentation of tlieir strin- gency, as evinced by the numerous stringent changes made in their provisions by the legislatures of nearly all the states within the last few years, especially as to the character of proof required to re- move tlie statutory bar, and as to the periods of limitation, and the extension of their provisions to a large class of eases not embraced in former statutes. These statutes are declared by Livingston, J., "among the most beneficial to be found in our books.' 'They rest upon sound policy, and tend to the peace and welfare of society,' and are so. con- strued as to effectuate tlie inten- tion of the legislatures, although in individual cases they seem to be productive of great hardship. There certainly can be no hardship in re- quiring parties to settle their busi- ness matters within certain reason- able periods; and if, with tlie sure prospect of losing the rights to a remedy thereon, they stand by in- active and permit their claim to be barred, it is not tlie law, but tlie party, who is responsible for the hardship entailed. Tliere can be no question tliat laws of limitation are founded on correct and salutary principles, although, in isolated cases, they may be productive of great hardship; therefore, although they are to be encouraged, yet, as they are acts which take away ex- isting rights, they should always be construed with reasonable strict- ness, and for the benefit of the rights sought to be defeated there- by, so far as can be done consist- ently with their letter and spirit. In this country it was at one time seriously questioned whether these statutes were not unconstitutional, as interfering with the rights of property, guaranteed by the para- mount law of the Constitution; but it has come to be pretty well set- tled that to make or repeal them is not an interference with a vested right, except where they are made to act retrospectively.'' Idem, 5-7. See Templeman's Admr. v. Pugh, 102 Va. 441, 46 S. E. 474. "Statutes cf limitations will not be given a retroactive effect unless by express terms, or by necessary implication, it clearly appears that the legislature intended that they should so operate." Harrison v. TIarman, 76 W. Va. 412, 85 S. E. 646. ^'■W. Va. Code, 1913, o. 35, §20; c. 37, § 5; c. 17, § 9; c. 104, §§ 1-19, tlie general law on the subject; c. 139, § 12; c. 136, §4; e. 139, §10. See index to Code for other In- stances. Va. Code, 1904, §193; §751: §770; §3432; §2481; § 2«9S; §§ 2915-2938; § 342*; §§ SS^, MTf- .•1.179. 479 Pleas in Bar §382 in a court of equity, in analogous eases, will be confined to the same period.*^ Hence, every suit for the recovery of land must be brought within ten years after the right of suit accrues,''^ ex- cept that in Virginia, as to land lying east of the Allegheny Mountains, the period is fifteen years. '*' Ten years is the limit 4' Eowe V. Bentley, 29 Gratt. (Va.) 756; Cole's Adiiir. v. Ballard, 78 Va. 130; Wilsons v. Harper, 25 W. Va: 179; Bedford v. Clarke, 100 Va. 115, 40 S. E. 630; Newberger V. Wells, 51 W. Va. 024, 42 S. E. 625; Sibley v. Stacey, 53 W. Va. 292, 44 S. E. 420: Crawford's Admr. V. Turner's Admr., 67 W. Va. 564, 68 S. E. 179: Craig v. Gauley Coal Land Co., 73 W. Va. 624, SO S. E. 945. In Drumright v. Hite, 2 Va. Dec. 465, 26 S. E. 583, Reilly, J., in his opinion, says: "Equity, with respect to statutes of limitations, as a gen- eral rule, follows the law. If a legal right would be barred in a suit to enforce it in a court of law, it or an analogous equitable right will be likewise barred in a suit to enforce it in the equitable forum. Rowe v. Bentley, 29 Gratt. 759; Harshber- ger's Admr. v. Alger, 31 Gratt. 67; and Hutcheson v. Grubbs, 80 Va. 257." 1SW. Va. Code, 1913, c. 104, § 1; Va. Code, 1904, § 2915. «Va. Code, 1904, §2915. To make the statute of limita- tions available as a defense against an older and better title, the party thus relying on it must show an actual, open of notorious, continu- ous, exclusive and hostile or adverse possession of the land for the stat- utory period, under claim or color of title. Clark v. McClure, 10 Gratt. iVa.) 305; Anderson v. Harvey, 10 Gratt. (Va.) 3SG; Koinor v. Rankin, U Gratt. (Va.) 420; Cline v. Cat- ron, 22 Gratt. (Va.) 378; Creekmur V. Creekmur, 75 Va. 430; Hollings- worth V. Sherman, 81 Va. 668; Andrews v. Roseland Iron and Coal Co., 89 Va. 393, 16 S. E. 252; Moore V. Douglass, 14 W. Va. 708; Cooey V. Porter, 22 W. Va. 120; Core v. Faupel, 24 W. Va. 238; Jones v. Lemon, 26 W. Va. 630; Garrett f. Ramsey, 26 W. Va. 345; Hall v. Hall, 27 W. Va. 468; Oney v. Clen- dcnnin, 2S W. Va. 35; Summerfield V. White, 54 W. Va. 311, 46 S. E. 154. In such a case, a grant is pre- sumed. Riffle V. Skinner, 67 W. Va. 75, 67" S. E. 1075. As illustrative of this principle, we quote from the case of Jarvis V. Town of Grafton, 44 W. Va. 453, 30 S. E., at p. 182: "It is pretty clearly shown that Mrs. Jarvis had the alley in question inclosed, and was in the actual possession thereof for ten years; but was her possession adverse? 'Possession, in order to be adverse, must be (1) hostile or adverse; (2) actual; (2) visible, notorious and exclusive; (4) con- tinuous; (5) under claim of title.' Heavener v. Morgan, 41 W. Va. 428, 23 S. E. 874. Mrs. Jarvis claims to have never heard of an alley being located there until 1893, in July; but it is shown that in 1S87 she was notified, and at that time she admitted the right of the town to open the alley, and said that, if she should be permitted to gather the crop she had on it, she would al- ,§382 Equity Procedure 480 of the right of suit for the assignment of dower." So a suit to enforce a judgment lien must be brought within ten years from its date, or within a like period from the return day of the last execution issued on it;" except that in Virginia the period is twenty years when there is an officer's return on the execution. ^^ The same limitation applies to a judgment rendered by a justice low it opened without opposition. And so, frequently afterwards, never claiming it as lier own, or that she could in any way question the right of the town to open it, until she had 'passed the Duhicon' of tlie ten-year limit; and tlien, for the first time, her possession became hostile and adverse; and not until then was she ready to say to the town, and to all the world, tliat she was, in her own right, holding the possession under title conveying it to her. The great preponderance of testimony shows that while her possession was actual, visible, notorious and continuous, she was careful that it should not appear to be hostile or a-dverse, evi- dently intending to do the very thing she accomplished, — to lull the authorities into a, false security, leading them to believe they would meet with no opposition from her in opening the alley whenever they might desire, at a time when she would have no crop upon it." The possession of a purchaser of land with notice of a prior deed of trust is not adverse to the right of the creditor secured by such trust deed. Pickens v. Love, 44 W. Va. 725, 29 S. E. 1018. Code, § 2015, limiting an action to recover land to fifteen years next after the right to bring it accrues, will be applied in a suit in equity for recoverv of the land and an ac- counting as to the rents and profits. Drumright v. Hite, 2 Va. Dec. 465, 26 S. E. 583. 50 Smith V. Werhle, 41 W. Va. 270, 2.3 S. E. 712: Morris v. Rose- berry, 46 W. Va. 24, 32 S. E. 1010; Sperry v. Swigcr, 54 W. Va. 283, 46 S. E. 125. But the statute does not begin to run while the widow is in possession, li^em, 01 W. Va. Code, 1913, e. 130, §§ 5- 6; Va. Code, 1004, §§3573, 3577, 3.578; \Verdcn1)augh v. Reed, 20 W. Va. 588; Shipley v. Pew, 23 W. Va. 487; Laidley v. Kline, 23 W. Va. 565; Brown v. Butler, 87 Va. C21, 13 S. E. 71; Livesay v. Dunn, 33 W. Va. 453, 10 S. E. 808; JIc- Endrie v. Morgan, 31 W. Va. 521, 8 S. E. 285, reported in S. E. under style of Hurst v. Morgan. The period of limitation as to the riglits of one who is subrogated to the rights of a judgment creditor is the same as that which was appli- cable to the rights of the judgment creditor. Smith v. Davis, 71 W.Va. 316, 76 S. E. 670. The running of the statute can not be prevented by an agreement that no execution shall issue. Clark V. Nave's Creditors, 116 Va. S3S, 83 S. E. 547. o=Va. Code, 1013, §§ 3573, 3577, 3578; Brown v. Butler, 87 Va. 621, 13 S. E. 71. But see McClanalian's Admr. v. ^"orfolk & W. Ry. Co., 122 Va. 705, 06 S. E. 453. 481 Pleas in Bab § 382 of the peace.'' The effect of the bar of the statute as to a judg- ment lien is to extinguish the right to recover, and not merely to impair the remedy. Hence, if the lien is barred by the stat- ute, and such fact is apparent to the court, a plea of the statute is not necessary to defeat a recovery.^* A suit upon a judgment or decree rendered in any other state or country shall be barred, if by the laws of such state or country such suit would there be barred, and be otherwise incapable of being enforced there ;^^ and whether so barred or not, no action against a person who shall have resided in West Virginia during the ten years next preceding such action, shall be brought upon any such judgment or decree rendered more than ten years before the commence- ment of such action. ''' Any suit for the recovery of money upon an award or nny contract other than a judgment or recog- nizance, such contract being an indemnifying bond taken under any statute, the bond of a personal representative, other fidu- ciary, or public officer, or any other contract under seal, must be brought within ten years next after the accrual of the right to sue;^' except that in West Virginia the limitation as to such other contracts under seal, if executed prior to April 1, 1869, is twenty years.^^ If the suit be upon an award, or upon a eon- tract by writing, signed by the party to be charged thereby, or his agent, but not under seal, the limitation of the right of suit in West Virginia is ten years ^' and in Virginia five years. ^^ In West Virginia, if the suit be upon any other contract, it must be brought within five years ; iiuless it be by one partner against his copartner for a settlement of the partnership ac- counts, or upon accounts concerning the trade of merchandise between merchant and merchant, their factors or servants, where the action of account would lie, in either of which cases the ac- :i3 Brown v. Butler, 87 Va. 621, ^"Idcm. 13 S. E. 71; Livesay v. Dunn, 33 sMV. Va. Code, 1913, u. 104, §6; W. Va. 4.53, 10 S. E. 808. Va. Code, 1004, § 2020. 54 Lamon v. Gold, 72 W. Va. 618, os w. Va. Code, 1013, c. 104, §6. 79 S. E. 728. ^0 Idem. B5 W. Va. Code, 1913, c. 104, § 13; oo Va. Code, 1904, § 2920. Va. Code, 1904, § 2928. § 382 Equity Pi;oc;edure 482 tion may be brought until the expiration of five years from a cessation of the dealings in which they are interested, but not thereafter." In Yirginia, if the suit be "upon any oral con- tract, express or implied, for articles charged in a store account, although such articles be sold on a written order, within two years; and if it be upon any other account, within three years, unless it be an action by one partner against his copartner for a settlement of the partnership accounts, or upon accounts con- cerning the trade of merchandise between merchant and mer- chant, their factors or servants, where the action of account would lie, in either of which cases the action may be brought until the expiration of five years from a cessation of the dealings in which they are interested together, but not after." "' The lien of a mechanic, laborer or other person for work and labor performed or material furnished in the alteration, repair or construction of a building or other structure provided by statute, must be brought in "West Yirginia within six months after filing his notice in the clerk's office of the county court ;^' and in Virginia, within the game period reckoned from the time when the whole amount covered by such lien has become pay- able." In Virginia, the period for the enforcement of a lien created by deed of trust or mortgage, or reserved to secure the payment of unpaid purchase money, is twenty years from the time when the right to enforce the same first accrued.''^ WW. Va. Code, 1013, c. 104, §6; payment of money, and no lien re- Wiley V. Eeaser, 103 S. E. 362 (W. served prior to May 1, 1888, to se- Va. 1020). cure unpaid purchase money, shall 62 Va. Code, 1904, § 2020. be enforced after twenty years from 63 W. Va. Code, 1918, e. 75, §22. the time the right to enforce the 64 Va. Code, 1004, §2481. same shall have accrued; provided 65 Va. Code, 1904, §203.5. As to the limitation of the right to en- this character of liens in West Vir- force such deed of trust, mortgage ginia, see post, § 380. or lien reserved, shall not expire Mr. Barton, in the last edition prior to May 1, 1003: but the limi- of his admirable treatise on Chan- tation thus prescribed may be ex- cery Practice, says, in speaking of tended by an endorsement to that the statute here cited, that "the effect entered upon the margin of statute further provides that no the page of the deed-book on which deed of trust or mortgage, given prior to May 1, 1888, to secure the 483 Pleas in Bar § 382 It is also provided by statute in Virginia "that the right of action, against the estate of any person hereafter dying, on any such award or contract, which shall have accrued at the time of his death, or the right to prove any such claim against his estate in any suit or proceeding, shall not in any case continue longer than five years from the qualification of his personal representa- tive, or if the right of action shall not have accrued at the time of the decedent's death, it shall not continue longer than five years after the same shall have so accrued.""^ "Every personal action for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his. representative ; and if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after." *^ Under this law, if the action be of such a nature that it will not survive to the personal representative, it must be brought within one year from the time the right of suit accrues.^^ A right of action for a per- sonal tort does not survive to the personal representative, while rights of action for injuries to property do survive.^' ttie same is recorded, when such en- o" Va. Code, 1904, § 2920. dorsement is duly executed by the «' W. Va. Code,. 1913, c. 104, § 12. grantor or his duly authorized at- The same law exists in Virginia, torney in fact, and attested by the Va. Code, 1904, § 2927. clerk of the court in which such os Flint v. Gilpin, 29 W. Va. 740, lien is recorded, which endorse- 3 S. E. 33; Grubb v. Suit, 32 Gratt. ment, it is provided, shall be held (Va.) 203, 34 Am. St. Rep. 765, and to extend the limitation of the right in the opinion of the court, to enforce the lien for twenty years 6o Grubb v. Suit, 32 Gratt. (Va.) from the date of such endorsement. 203; Dillard v. Collins, 25 Gratt. But none of the provisions of this (Va. ) 343. statute may be construed to em- As was said by Lord Mansfield in brace any deed of trust or mort- Hambly v. Trott, Cowp. R. 376, all gage executed by a corporation; or public and private wrongs die with any investment or loan of funds the offender. And this was pre- arising from the sale or other dis- eminently a wise rule of the com- position of glebe lands in the sev- mon law founded on considerations eral counties of the state." Vol. of the soundest public policy. In II, pp. 1148, 1149. actions based upon torts to the per- 383 Equity Pboceduee 484 § 383. Cases not specifically provided for that come within the general five-year period of the Statute of Limita- tions. As we have seen,'"' all cases in which the limit is not specifi- cally prescribed must be brought either within five years or one year, according to the character of the claim, from the accrual of the right to sue. Thus, in illustration of this statute, the following demands must be asserted within five years from the time the cause of suit arises or the damages accrue : a claim for rents and profits by one tenant in common against another ; ''^ a claim for damages caused by an embankment negligently made by a railroad company in a street, upon which to lay its track, whereby a culvert already there for the passage of water is obstructed or closed, so that by reason thereof water at times son, such, for example, as slander and breach of promise of marriage, the motives and feelings of the par- ties are often involved; everything relating to their character and con- duct is the subject of investigation. The legislatures and the courts have wisely adhered to this rule through all the innovations of modern times. There may be excep- tional cases — cases of undoubted hardship; but the rule is found to be generally wise and salutary in its operation. See Grubb v. Suit, 2 Gratt. (Va.) 203. In the state of Kew York they have a statute substantially the same as the ones in Virginia and West Virginia, which was the sub- ject of consideration in Wade v. Kalbfleisch, 58 X. Y. R. 2S2, 17 Am, Rep. 250. It was there held that an action for a breach of promise of marriage is not an action upon a contract within tlie meaning of the statute, and can not be revived against the personal representatives of the promisor. Church, J., in de- livering the opinion of the court, said: "The wrongs for which this statute authorizes an action to be brought by or against executors are such as affect property or property rights and interests; or, in other words, such as affect the estate. Executors represent property only. They can take only such rights of action as affect property, and can not recover for injuries for personal wrongs. Although, in form, it re- sembles an action on contract, in substance it falls within the defini- tion of the exception as an action on the case for personal injuries." "Causes of action that survive, and may be prosecuted by or against the personal representative of a de- cedent, primarily and generally are such as affect property or property rights, the wrong to the person be- ing merely incidental." Kinney v. Town of West Union, 79 W. Va. 4fi3, ni S. E. 260. ■"> Ante, § 382. 71 Ogle v. Adams, 12 W. Va. 213. 485 Pleas in Bar § 384 from rain or snow collects and floods an adjoining lot ; '^ a suit by one partner against his copartner for a settlement of the partnership accounts ; ''^ a claim for personal services, as those performed as a nurse J* or for work and labor performed ; ''^ a claim for bounty made by a volunteer soldier to the county court and rejected by such court.'* The period under the statute of limitations for an action for the unlawful conversion of personal property, or for its proceeds, if sold, is five years." In Virginia, a retail store account, though barred by express statute in two years,'^ when presented to the debtor and agreed by him to be correct, becomes an account stated, and the period of limitation then becomes five years." And as against a demand for money had and received by one for the use of another, the period is five years from the receipt of the money.*" § 384. Cases not specifically provided for, in which the period of limitation is one year. All actions which do not survive to or against the personal representative of a decedent, who, if in life, could bring suit or be sued, must be brought within one year after the right of action accrues. Thus, by reason of this law, the following actions must be brought within one year from the time the right of suit arises: a claim for damages for the seduction of a daughter or servant;'^ a claim for personal injuries in all cases, except where death ensues from the wrongful act, neglect or default of another,*^ when the suit must be brought within two years after 72 Henry v. Ohio River Railroad f^ Thompson v. Whitaker Iron Co., 40 W. Va. 234, 21 S. E. 863. Co., 41 W. Va. 574, 23 S. E. 795. See additional cases cited in notes 'sVa. Code, 1904, §2920. 110-112 infra. to Radford v. Fowlkes, 85 Va. 820, 73 Coalter v. Coalter, 1 Rob. (Va.) 8 S. E. 817. 79 85. 80 Jackson v. Hough, 38 W. Va. 74 Harshberger v. Alger, 31 Gratt. 236, 18 S. E. 575. (Va.) 53. *^ Riddle v. McGinnis, 22 W. Va. 75 Dorr V. Eohr, 82 Va. 359. 253. 78 Shaw V. County Court, 30 W. 82 Curry v. Mannington, 23 W. Va. 488, 4 S. E. 439. Va. 14. § 385 Equity Proceduee 486 the death of the injured party in Wesi Virginia,^^ and in Vir- ginia within twelve months thereafter ;** a claim for the re- covery of damages for a breach of promise to marry ; '^ a claim for damages against a physician for malpractice arising from the negligent, unskillful or improper treatment of the patient.'* § 385. When the Statute of Limitations begins to run against the right to sue. The moment a party has the right to institute suit, the statute begins to operate upon that right,^' and when it begins to run against a party capable of suing in favor of one who may be sued, its running is not suspended, unless- the case be brought within some of the exceptions of the law relieving against its operation or effect.** Hence the real question to be determined in applying the statute of limitations is the time when the party may have brought his suit touching the subject to which the statute is sought to be applied.*^ As this depends upon such a variety of circumstances, as well as upon the character of the contract or nature of the claim, there is no rule for the solution of the question; so that the only aid that can be offered, aside from a few self-evident principles, is illustration. Thus, in 83 W. Va. Code, 1913, e. 103, §5. Wilsons v. Harper, 2.5 W. Va. 179; 84 Va. Code, 1904, § 2903. Mynes v. Mynes, 47 W. Va. 681, 35 85 Flint V. Gilpin, 29 W. Va. 740; S. E. 93.5. Grubb V. Suit, 32 Gratt. (Va.) 203, Death of a, party does not inter- 34 Am. St. Rep. 765. rnpt the running of the statute. soKuhn V. Brownfield, 34 W. Va. Rowan v. Chenoweth, 49 W. Va. 252, 12 S. E. 519. 287, 38 S. E. 544, 87 Am. St. Rep. STVashon v. Barrett, 99 Va. 344, 796. It continues to run against 38 S. E. 200. his heirs, although they be infants. 88 Handy v. Smith, 30 W. Va. 195, Pickens v. Stovit, 67 W. Va. 422, 3 S. E. 604: Bradstreet v. Clarke, 68 S. E. 354. 12 Wend. (N. Y.) 602, 12 L. Ed. "When the statute of limitations 245: Peck v. Randal!, 1 .Johns. (N. has begun to run against an ances- Y.) 165, 3 L. Ed. 99; Fitzhugh v. tor, it ""ill continue to run against Anderson, 2 F.'en. and Munf. (Va.) his infant heirs, unleds otherwise 289, 3 Am. Dec. 625; Hudson v. specially provided by statute." Wil- TTudaon, 6 Munf . (Va.) 352: Parsons sons v. Harper, supra. V. McCracken, 9 Leigh (Va.) 405; so Wood, Lim. Ac, 264 et seg. Jones V. Lemon, 26 W. Va. 629; 487 Pleas in Bak §385 applying the statute of limitations, the law of the place in which the suit is brought must, as a general rule, govern.^" Until there is some one to sue or be sued, the statute does not begin to run.'^ When demand is necessary before suit, the statute does not be- gin to run until demand is made.'^ So, where a claim or debt is payable, or a right dependent, upon a certain contingency, or upon the occurrence of a certain event, the statute does not be- 00 Wood, Lim. Ac, 17. "Upon a contract which was made and was to be performed in another state or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred by the laws of such state or country." W. Va. Code, 1913, c. 104, § 18. But the contract, to come under the provi- sions of this statute, must expressly show, or the facts and circumstances must show, that it is to be per- formed in such other state or coun- try. Davidson v. Browning, 73 W. Va. 276, 80 S. E. 363. This pro- vision restricts, and does not en- large, the statutory period of the lex fori. Brown v. Hathaway, 73 W. Va. 605, 80 S. E. 9.59. 91 Wood, Lim. Ac, 8, note 2, and authorities cited : Idem, 2.')4, and cases cited; Hansford v. Elliott, 9 Leigh (Va.) 79: Clark v. Hardi- man, 2 Leigh (Va.) 347. See W. Va. Code, 1913, c 104, §17; Va. Code, 1904, §29'?2; Asylum v. Mil- ler, 29 W. Va. 326, 1 S. E. 740. "Where a cause of action accrues to the estate of a decedent at the time of his death and not before, and no one qualifies as administra- tor until more than five years there- after, the law conclusively presumes that an administrator qualified on the last day of said five years and the statute of limitations begins to run in favor of the estate of the de- cedent from that time, whether or not there is, in fact, any adminis- trator of the estate." Asylum v. Miller, Supra. "As to a demand which accrues to a decedent's estate after his death, the statutory period of limi- tation of suit is counted from the time his personal representative qualifies, if that is within five years after his death; but if there is no qualification of a personal represent- ative within five years after his death, then the period is counted from the end of that five years." Crawford's Admr. v. Turner's Admr., 67 W. Va. 564, 68 S. E. 179. See Cox V. Caskie, 116 Va. 388, 82 R. E. 118, where an executor was superseded by an administrator with the will annexed. 92 Wood, Lim. Ac, 25.5-263; Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. 795. In this case just cited, Brannon, J., in the course of his opinion, dis- cussing the necessity of demand be- fore suit in that case, which had been urged as a reason why the statute of limitations did not bar the plaintiff's right, savs: "But the defense of time is ;ought to be met with the argument that a de- mand for the iron was necessary before suit and the statute could not run until that demand, which §385 Equity Procedure 488 gin to run until the contingency or event occurs.^' Thus, the statute does not run against a debt acknowledged in a codicil, and there directed by testatrix to be paid by her executor upon the death of her sister, till the sister's death. ^'' So, where an employer promises to make compensation for services at the time of his death, by will or otherwise, the statute does not begin to run until the death of such person. ^^ So, where a right depends upon the existence of a will which has been lost, the statute does wag not maiile until 1894. I think a demand was necessary before suit could be brought. But can it ho de- layed forever? It is a right vested in the party, like the right to re- cover. Is it wise policy to let it live forever, any more than the right of action? The creditor can not keep the debtor in debt indef- initely. 13 Am. and ''^ng. Enc. Law, 726. 1 think Ang. Lim., § 96, states the rule properly: 'Though the stat- ute begins to run against a note payable on demand from date, it does not do so against a note pay- able so manv days after demand. In the latter it commences to run only from the time of the demand. The demand must he made, however, within a reasonable time from the time of date. What is a reasonable time for this purpose does not ap- pear to be settled bv anv precise rule, and must depond on circum- stances. If no cause for delay be shown, it woulJ seem reasonable to require the demand to be made with- in the time limited hv the statute for bringing the action. There is the same reason for hastening the demand that t^ere is for hastening the commencement of the action.' See Landi.t v. Saxton (Mo. Supp.), 16 S. W. 912; Atchison, T. rf 8. F. R. Co. V. BurUngame Tp. (Kan. Supp.), 14 Pae. 271; Railroad Go. V. Byers, 72 Am. Dec. 770; Hint- rager v. Traul, 69 Iowa 746 (27 N. W. 807 ) ; Shaw v. Silloway, UH Mass. 503 (14 X. E. 783) ; Hamilton V. Hamilton, .5.5 Am. Dec. 585; High V. Board, 92 Ind. 580." "Demand, which is prerequisite to the right to bring an action against a. county court, must be made with- in a reasonable time to avoid the effect of the statute of limitations. A party can not delay demand in- definitely." Beury Coal & C. Co. v. County Court, 76 W. Va. 610, 87 S. E. 25S. See also, Blair v. Wilson, 28 Gratt. (Va.) 165. 03 Perkins v. Sieefried. 97 Va. 449, 34 S. E. 64; Cann v. Cann, 45 W. Va. 563. 31 S. E. 923; Duncan v. Wright, 11 Leiiih (Va.) 542: Swing V. Taylor & Crate, 68 W. Va. 621, 70 S. E. 373; Trustees of Broadus Institute v. Siers, 68 W. Va. 125. 69 S. E. 468, Am. Ann. Cas. 1912A, 920. 04 Perkins v. Siegfried, 97 Va. 449, .34 S. E. 64. 9'^ Cann v. Cann, 45 W. Va. 563, 11 S. E. 923: Hotsinpiller v. Hot- sinpiller, 72 W. Va. 823, 79 S. E. 936. See Duncan v. Duncan's Admx., 117 Va. 487, C6 S. E. 485. 489 Pleas in Bar § 385 not begin to run until the will is found,'* The statute does not begin to run against a suit for the settlement of partnership accounts until there has been a dissolution of the firm, and no valid claims of debit or credit are outstanding against or ir favor of the partnership.'' As to a claim or debt by the wife against the husband, the statute does not begin to run in West Virginia during coverture.'^ "Where a wife is seized in fee of land, and she and her husband attempt to make a deed purport- ing to convey the fee, but void as to the wife, such deed vests in the grantee a life estate, either for the joint lives of the husband and wife, or by the curtesy, according to the facts, and the stat- ute of limitations does not begin to run against the wife's rever- sion until the termination of the life estate.'* But in Virginia, where the husband has collected demands due the wife as her legal separate estate, the statute of limitations begins to run from the time she obtains knowledge of the fact of the collec- tion.^"" When land is sold under a trust deed after payment of the debt thereby secured, the statute begins to run as soon as the oeCraufura v. SmitTi, 93 Va. 623. elusive upon the parties to it as far 23 S. E. 235. ^^ '* goes, and leaves open only the 97 Smith V. Zumbro, 41 W. Va. unsettled portion of the account. 623 24 S. E. 653. ^^'^ the statute begins to run from In Foster v. Rison, 17 Gratt. the time of the settlement as to (Va.) 321, it is decided: "Though that portion of the account em- the time prescribed by the statute braced in it." See Jordan v. Miller, may not begin to run until the busi- 75 Va. 442. ness of the partnership is wound up, ^^ Eighter v. Riley, 42 W. Va. 633, yet the parties may have a partial 26 S. E. 357. settlement of the partnership ae- 99 Arnold v. Bunnell, 42 W. . Va. counts before, or may bring a suit 473, 26 S. E. 359 ; McNeely v. South for such settlement. Penn Oil Co., 52 W. Va. 616, 44 S. "Though all the business of a E. 508, 62 L. R. A. 562. See Duffy partnership may not be wound up, v. Currence, 66 W. Va. 252, 66 S. there may be laches in bringing a E. 755. suit for the settlement, which will 'o" Riggan v. Riggan, 93 Va. 78, affect the party guilty of the laches ; 24 S. E. 920 ; De Baun's Exr. v. so that doubtful questions made so De Baun, 119 Va. 85, «t Jameson v. Rixey, 04 Va. 342, 26 S. E. 861, 64 Am. St. Rep. 726. As to tliis matter, Reily, J., in the case just cited, in his opinion delivered tlierein, says: "It was contended tliat, altliough the court below may have been mistalien in its opinion as to tlie effect of the decree, yet that the lien, if still ex- isting, was itself barred by the statute of limitations. This posi- tion also is untenable. Prior to the Code of 1887 there was no stat- utory limit to the enforcement of the vendor's lien, or the lien for owelty of partition, but, as before stated, these liens continued to ex- ist until waived, released, or satis- fied, or until sufficient time elapsed to raise the presumption of pay- ment. Coles V. Withers, supra; Hanna v. Wilson, supra; Tunstall V. Withers, 86 Va. 802 (11 S. E. 565) ; Paxton v. Rich, supra; Smith's Exrx. v. Washington, etc., R. Co., 33 Gratt. 617; Bowie v. Poor School Society of Westmore- land, 75 Va. 300; Stimpson v. Bish- op, 82 Va. mO; Dobbin v. Rex, supra; Ruffin v. Cox, 71 N. C. 253; Sutton V. Edmonds, 5 Ired. Eq. 425. "The present statute prescribing a limit to the enforcement of a deed of trust, mortgage, or lien reserved to secure the payment of unpaid purchase money (Code, § 2035), was enacted long after the creation of the lien sought to be enforced in this case, and if the statute applies to a lien for owelty of partition as to which no opinion is expressed, it being unnecessary to do so, it is very clear that it does not bar the plaintiff from enforcing her lien (Code, §2038)." 12" Jones V. Jones, 02 Va. 500, 24 S. E. 255; Leake v. Leake, 75 Va. 702; Smith v. Moore, 102 Va. 260, 46 S. E. 326. i^iBattin v. Woods, 27 W. Va. 58; Bradley v. Ewart, 18 W. Va. 508. See State v. Sponaugle, 45 W. Va. 415, 32 S. E. 283. In Battin v. Woods, svpra, it was insisted by counsel that the right to bring the suit to cancel the tax deed was barred by the statute of limitations, and on that ground it M'tts urged that the decree setting 495 Pleas in Bar §387 application in West Virginia to a suit brought to enforce the lien of a vendor, or that secured by deed of trust or mortgage.''^* § 387. As to presumption of payment from lapse of time. Closely akin and allied to the defense of the statute of limita- tions, so far as its effect is concerned, is that of the presump- tion of payment created by lapse of time. The former is a rule of pleading, while the latter is a rule of evidence, if not a mere rule of equity.^^' Thus, while a debt or bond secured by mortgage or deed of trust, or by a vendors' lien duly reserved, does not come within the operation of the statute of limitations aside the tax deed was erroneous. Answering this part of the argu- ment, Johnson, P., in the course of his opinion in tliat case, says: "The only statute of limitations of five years to a suit to set aside a tax deed is § 27 of c. 31 of the Code. That section provides: 'Tf the owner of any real estate sold for the non- payment of taxes thereon, his heirs or assipn=i, claim that the taxes on account of which the sale was made, were not in arrears, he may within five years after the deed shall have been obtained and admitted to rec- ord, institute a suit in equity . . . to have said sale and deed declared void,' etc. This is not a suit of that character. It is not pretended that the taxes, for the non-payment of which the land was sold, were not in arrears. On the contrary, it is admitted in the bill that they were unpaid. Then is there any statute of limitations barring a suit like this? In Bradley v. Kwart, 18 W. Va. 598, it was held that § 27 of c. 31 of the Code did not apply to a case like that, where the land was improperly on the assessor's books and sold in an improper name, and that in such case at any time the sale and deed may be declared void." In State v. Sponaugle, supra, it is decided that laches will not bar a landowner from assailing a tax sale of his land, when there is no actual possession under the tax title. 1=-' Pickens v. Love, 44 W. Va. 725, 29 S. E. 1018; Criss v. Criss. 28 W. Va. 388; Pitzer v. Burns, 7 W. Va. 63; 2 Bart., Ch. Pr. (2nd Ed.), 1148; Porter v. Marshall, 67 W. Va. 673, 60 S. E. 307. The same rule operates in favor of a surety who pays a debt secured by a deed of trust and seeks relief by way of subrogation. Release of the debt by the creditor will not af- fect his rights, unless he is guilty of laches. Gooch v. Gooch, 70 W. Va. 38, 73 S. E. 56. As to presumption of payment and laches as a defense in such eases, vide next two succeeding sec- tions; also, Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623, 45 Am. St. Rep. 912. 323Norvell v. Little, 79 Va. 141; Pitzer V. Burns, 7 W. Va. 63; Cam- den V. Alkire, 24 W. Va. 674: Criss V. Criss, 28 W. Va. 388. § 387 Equit? Procedure 496 in West Virginia, and did not do so in Virginia prior to the adoption of the Code of 1887/" nevertheless the limitation of the right to enforce payment of the debt in such a ease is twenty years from the time the debt is payable, or the accrual of the right to sue/^^ based upon the presumption of payment, by analogy to the limitation from presumption of payment in ac- tions at law upon a single bill or note."" This limitation, how- ever, is not a fixed and positive bar like that of the statute of limitations,'^'' but is repellable by proof.'^* Thus, the presump- tion may be rebutted by satisfactory evidence of any sort what- soever.'^' For illustration, the presumption may be rebutted by the following circumstances: "by the debtor's express ad- missions, made within the period of twenty years, that the debt was unpaid;"" by his implied admissions to that effect, from paying interest, or part of the principal, which may be proved by extrinsic evidence, or by cotemporaneous endorse- ment by the obligee himself; or by showing the obligor's in- ability to pay during the period of twenty years; or by the suspension of the power of collection by stay -law, or by war; by the obligee's continued absence from the country, or even by the near relationship of the parties.'"'^ And these rules apply as well in courts of equity as at law.^^^ As to a judgment, there can be no presumption of payment from lapse of time ^^i Ante, § 380. the latter it is denominated natural i== Updike V. Lane, 7S Va. 1.32. presumption of payment, and may i^oPitzer v. Burns, 7 W. Va. 6.3; be rebutted." Liglitfoot v. Green, Crias v. Criss, 2S W. Va. 388, 309. 91 Va. 500, 22 S. E. 242. 127 Cole V. "Ballard, 78 V:i. 1.30; '29 Updike v. Lane, 78 Va. 132, Camden v. Alkire, 24 W. Va, 674; Allison's K.xr. v. Wood, 104 Va. Liglitfoot V. Green, 91 Va. 509, 22 705, 52 S. E. 559. S. E. 242. 1^° Updyke v. Lane, 78 Va. 132. i2sCole V. Ballard, 78 Va. 139; "i Wcm; Criss v. Criss, 28 W. Hale V. Pack, 10 W. Va. 145. Va. 388; Dabney v. Dabney, 2 Rob. "There is a recognized distinction (Va.) 622, 40 Am. Dec. 761; Ers- between the statute of limitations, kine v. North, 14 Graft. (Va.) 60; and the presumption of payment Hutsonpiller v. Stover, 12 Gratt. from the lapse of time, the condi- (Va.) 570; Hale v. Pack, 10 W. Va. tion of the parties, and their rela- 145; Cheatham v. Aistrop, 97 Va. tions to each other, etc. Tn the 457, 34 S. E. 57. former case the bar is absolute; in "2 Updike v. Lane, 78 Va. 132. 497 Pleas in Bae §387 less than the statutory period of limitation.^'' And inasmuch as the statute of limitations only bars the remedy, but does not extin^ish the debt, if the debt be secured by deed of trust, mortgage, or vendor's lien, the payment of such debt may be enforced in a court of equity by virtue of such lien, although an action on the debt itself, as a note, for instance, may be barred by the statute of limitations.^'*- In a suit brought to enforce the payment of a debt secured by a lien upon property, after the lapse of twenty years from the time the right of suit accrues, where payment is relied upon, in the absence of any evidence to rebut the presumption of 133 James v. Life, 92 Va. 702, 24 S. E. 275; Matley v. Carstaira, 114 Va. 420, 76 S. E. 048. Speaking of the principle an- nounced in the text, Moneure, P., in Foster v. Risen, 17 Gratt. (Va.), at p. 335, says: "The statute of limitations not being a bar to the suit, it seems to follow, as a neces- sary consequence, that laches and lapse of time constitute no such bar; but they may, notwithstand- ing, have a material effect in decid- ing upon particular claims which may be asserted in the course of the settlement of the partnership ac- count. Of course I do not mean to say that laches and lapse of time constitute no bar in any case in -which the statute does not consti- tute one. When the statute is a bar there is no need of any bar from laches or lapse of time. The latter bar peculiarly applies where the former does not. What I mean to say is, that if the cause of action be one to which the statute applies, but the lapse of time since it ac- crued be not such as to bring the case within the statute, laches and lapse of time can not in themselves constitute a bar to the suit." 134 Criss V. Criss, 28 W. Va. 388, citing the following cases: Hanna V. Wilson, 3 Gratt. (Va.), point 1 of syll., p. 232; Pitzer v. Burns, 7 W. Va., point 1 of syll., p. 63; Cam- den V. Alkire, 24 W. Va., point 5 of syll., p. 675; Ross v. Norvell, 1 Wash. (Va.) 14; Coles v. Withers, 33 Gratt. (Va.), point 4 of syll., p. 187; Smith's Exr. v. Washington City, Virginia Midland & Great Southern Railroad Company, 33 Gratt. (Va.), point 1 of syll., pp. 617-620. See additional cases cited in note 122, supra. See in support of this doctrine the following cases: Elkins v. Ed- wards, 8 Ga. 325, 236; Thayer v. Mann, 19 Pick. (Mass.) 535; Pratt V. Huggins, 29 Barb. (N. Y.) 277; Borst V. Corey, 15 N. Y. 505-510; Belknap v. Gleason, 11 Conn. 160, 27 Am. Dec. 721; Miller v. Trustees of Jefferson College, 5 Smedes & M. (Miss.) 651; Trotter v. Erwin, 27 Miss. 772; Nevitt v. Bacon et al., 32 Mi.qs. 212, 66 Am. Dec. 609; Joy V. Adams, 26 Me. 330; Wiswell v. Baxter, 20 Wis. 713; Cookea v. Cul- bertson, 9 Nev. 199. §388 Equity Procedure 498 payment in such case, the plaintiff can not succeed in the cause, and a decree will be entered for the defendant."'^ But no time bars the right, either under the statute of limita- tions or presumption of payment, of a vendor to recover pur- chase money for land, if he has not parted with the legal title.^'^ § 388. Laches as a defense in equity. As we have seen,'^^ there are many claims of which a court of equity has exclusive cognizance, to which the statute of limitations has no application. But it must not be thought that, by reason of this, there is no bar in equity to cases of this character. On the contrary, a court of equity always looks with suspicion upon a stale demand; and if the party seeking a recovery upon such a demand be chargeable with laches, his claim will be rejected.^'* Mere delay, however long, to bring suit does not of itself constitute laches,^'' though it is one of the 130 Hale V. Pack, 10 W. Va. 145; Camden v. Alkire, 24 W. Va. 674, at p. 679; Norvell v. Little, 79 Va. 141, 144. ISO Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623, 45 Am. St. Rep. 912, 23 L. R. A. 737; Blue v. Camp- bell, 57 W. Va. 34, 40, 49 S. E. 909. 137 Ante, § 386. 13S Cole's Admr. v. Ballard, 78 Va. 139; Cranmer v. McSwords, 24 W. Va. 594; Smith v. Thompson, 7 Gratt. (Va.) 112, 54 Am. Dec. 126; Tazewell v. Saunders, 13 Gratt. (Va.) 354; Stamper's Admr. v. Gar- nett, 31 Gratt. (Va.) 550; Hatcher V. Hall, 77 Va. 573; Nelson v. Kownslar, 79 Va. 468; Morrison v. Householder, 79 A^'a. 627 ; Morgan v. Fisher, 82 Va. 417; Turner v. Dil- lard, 82 Va. 536 ; West v. Thornton, 7 Gratt. (Va.) 177; Robertson v. Bead, 17 Gratt. (Va.) 544; Har- rison V. Gibson, 23 Gratt. (Va.) 212; Wissler v. Craig, 80 Va. 22; Bell V. Wood, 94 Va. 677, 27 S. E. 504, 506; Bill v. Schilling, 39 W. Va. 108, 19 S. E. 514; Trader v. Jarvis, 23 W. Va. 100, 108; Svvann V. Thayer, 36 W. Va. 46, 14 S. E. 423; Trowbridge v. Stone, 42 W. Va. 454, 26 S. E. 363; Pusey v. Gardner, 21 W. Va. 469; Bryant v. Groves, 42 W. Va. 10, 24 S. E. 605; Jarvis v. Martin, 45 W. Va. 347, 31 S. E. 957; Williams v. Maxwell, 45 W. Va. 297, 31 S. E. 909; Mann v. Peck, 45 W. Va. 18, 30 S. E. 20G: Kelly v. McQuinn, 42 W. Va. 774, 26 S. E. 517; 8 Enc. Dig. Va. & W. Va. Rep., 99, 100, and numerous oases cited; Idem, svipplements, un- der topic "Laches"; Hogg v. Shield, 114 Va. 403, 76 S. E. 934. For in- stances where ladies does not apply, see infra, note 149. 138 Cole's Admr. v. Ballard, 78 Va. 139; Tazewell v. Saunders, 13 Gratt. (Va.) 354; Wissler v. Craig. 499 Pleas in Bar §388 elements of laches.^'"' The delay or lapse of time in bringing suit must be such as to afford a reasonable presumption of the satisfaction or abandonment of the claim ; ^^^ or such as to prevent a just and proper defense by reason of the death of parties,^**^ by reason of the loss of evidence where the transac- tions are complicated so as to render it difficult, if not impossible, to do justice,^^^ or by reason of the character of the evidence, making it impossible for the court satisfactorily, and with safety to the rights of the parties, to found a decree upon it ; *^* or the delay must have been so long and unreasonable as to raise the presumption of acquiescence in the assertion of adverse rights, or assent to or waiver of them.^^^ Thus lapse of time. 80 Va 22; Fisher v. Borden, 111 Va. 535, 69 S. E. 636; Wingfield v. McGhee, 112 Va. 644, 72 S. E. 154; Adams v. Pugh's Admr., 116 "Va. 757, 83 S. E. 370; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. H. A. (N.S.) 775; Browning v. Browning, 85 W. Va. 46, 100 S. E. 860. Ko Cranmer v. McSwords, 24 W. Va. 594; Harrison V. Gibson, 23 <3ratt. (Va.) 212. 141 Tazewell v. Saunders, 13 Gratt. (Va.) 354; Robertson v. Read, 17 Gratt. (Va.) 544; Wissler v. Craig, SO Va. 22; Bell v. Wood, 94 Va. 677, 27 S. E. 504; Selden's Exr. v. Kennedy, 104 Va. 826, 52 S. E. 635, 4 L. R. A. (X.S.) 944, 113 Am. St. Rep. 1076; Branner v. Branner's A.dmr., 108 Va. 660, 62 S. E. 952; Snyder v. Bridge Co., 65 W. Va. 1, 63 S. E. 616, 131 Am. St. Rep. 947; Depue V. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (N.S.) 775. , H2 Stampers v. Garnett, 31 Gratt. (Va.) 550; Cranmer v. MeSwords, 24 W. Va. 594; Robertson v. Read, 17 Gratt. (Va.) 544; Nelson v. Kownslar, 79 Va. 468; Morrison v. Householder, 79 Va. 627 ; Turner v. Dillard, 82 Va. 536; Harrison v. Gibson, 23 Gratt. (Va.) 212; Sel- den's Exr. V. Kennedy, 104 Va. 826, 52 S. E. 635, 4 L. R. A. (N.S.) 944, 113 Am. St. Rep. 1076; Hill v. Saunders, 115 Va. 60, 78 S. E. 559; Depue V. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (N.S.) 775; Ash V. Wells, 76 W. Va. 711, 86 S.- E. 750. 143 Tazewell v. Saunders, 13 Gratt. (Va.) 354; Nelson v. Kownslar, 79 Va. 468; Turner v. Dillard, 82 Va. 536; Selden's Exr. v. Kennedy, 104 Va. 826, 52 S. E. 635, 4 L. R. A. (N.S.) 944, 113 Am. St. Rep. 1076; Hill V. Saunders 115 Va. 60, 78 S. E. 550; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (N.S.) 775; Ash V. Wells, 76 W. Va. 711, 86 S. E. 750; Baber v. Baber, 121 Va. 740, 94 S. E. 209; Mitchell v. Cornell, 106 S. E. 866 (W. Va. 1921). 144 Cranmer v. McSwords, 24 W. Va. 594; Morrison v. Householder, 79 Va. 627; Harrison v. Gibson, 23 Gratt. (Va.) 212; Wissler v. Craig, 80 Va. 22; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (N.S.) 775. 145 Hatcher v. Hall, 77 Va. 573; -lorgan v. Fisher, 82 Va. 417; Har- rison V. Gibson, 23 Gratt. (Va.) §388 Equity Pkocedure 500 or a long acquiescence of the husband without any disability on his part to sue, will be a bar to a prosecution for a divorce.^*' As, for instance, where a husband had been absent from his wife for eight years in a foreign country and she, supposing him to be dead, married another person; and the first husband after- wards returned and, finding his wife cohabiting with her second husband, without taking any steps to obtain a divorce, went abroad and continued absent for twenty years, and then returned again and filed a bill for divorce against his wife, who was living with her second husband by whom she had several chil- dren; the court, though the counsel of both parties consented to a decree, dismissed the bill, with costs. i" But laches can not be imputed to a party who had no knowledge of his rights or the means of obtaining a knowledge of them.^** And if thfr delay of the plaintiff, to whom laches is apparently imputable, is satisfactorily explained, the court will not withhold the relief sought.-'^' 212; Bill r. Schilling, 39 W. Va. •108, 19 S. E. 514: Trader v. Jarvis, 23 W. Va. 100; Swann v. Thayer, 36 W. Va. 46, 14 S. E. 423; Pusey v. Gardner, 21 W. Va. 469; Bryant v. Groves, 42 W. Va. 10, 24 S. E. 605; Williams v. Maxwell, 45 W. Va. 297, 31 S E. 909; Mann v. Peck, 45 W. Va. 18, 30 S. E. 206; Kelly v. McQuinn, 42 W. Va. 774, 26 S. E. .517; Kimmell v. Twigg, 107 S. E. 206 (W. Va. 1921). See cases cited in note 141, svpra. For a recent comprehensive definition of laches, see Carter v. Price, 85 W. Va. 744, 102 S. E. 685. 146 Williamson v. Williamson, 1 Johns. Ch. (N. Y.) 488, 1 L. Ed. 218, and note at p. 19, citing many cases. l"" Williamson v. Williamson, 1 Johns. (N. Y.) 488, 1 L. Ed. 218. 14S Trowbridge v. Stone, 42 W. Va. 454, 26 S. E. 363 ; Harper v. Combs, 61 W. Va. 561, 56 S. E. 902; Apple- gate V. Wellsburg Banking & Trust Co., 68 W. Va. 477, 69 S. E. 901; Citizens' Nat Bank v. Blizzard, 80 W. Va. 511, 93 S. E. 338; Depue v. Miller, 65 W. Va. 1-20. 64 S. E. 740, 23 L. R. A. (N.S.) 775; Briggs v. Watkins, 112 Va. 14, 70 S. E. 551; Hall V. Graliam, 112 Va. 560, 72 S. E. 105; Grove v. Lemley, 114 Va. 202, 76 S E. 305; Williams v. Croft Hat & Notion Co., 82 W. Va. 549, 96 S. E. 929. But the ignorance must not have been due to indolence or lack of diligence. Bedford v. Clarke, 100 Va. ll."i, 40 S. E. 630: Gillespie v. Davis, 116 Va. 630, 82 S. E. 705; Holsborrv v. Harris, 56 W. Va. 320, 49 S. E 404; Plant v. Humphries, 66 W. Va. 88. 66 8. E. 94, 26 L. E. A. (N.S.) 55S: O'Neal V. Moore, 78 W. Va. 296, SS S. E. 1044. 1" Hogg, Eq. Pr., § 3flfla. Whether laches exists depends upon the cir- cumstances of each case. Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (N.S.) 775; Selden's Admr. v. Kennedy, 104 Va. 826, 52 S. E. 635, 4 L. 'R. A, (N.S.) 944, 501 Pleas in Bae ^389 § 389. What will relieve from the bar of the Statute of Limita- tions. The statute of limitations begins to run as soon as the right of action accrues; ^'^ and, unless the case falls within some pro- vision of statute exempting it from the operation of the limita- tion prescribed by law, the running of the statute of limitations does not cease ''^ until suit is brought. ^^^ So, we must look to 113 Am. St. Rep. 1076. Laches does not apply where one is in possession of his property or rights and hence is under no necessity of seeking re- lief. Mull ins V. Shrewsberry, 60 W. Va. 694, 5.5 S. E. 736; Mills v. Mc- Lanahan, 70 W. Va. 288, 73 S. E. 927. The doctrine of laches does not apply in the case of a continu- ing nuisance. Face & Son v. Cherry, 117 Va. 41, 84 S. E. 10, Ann. Cas. 1917E, 418. Nor in the ease of an express trust, until the trust has been repudiated. Euckman v. Cox, 63 W. Va. 74, 59 S. E. 760. "Though there may be instances in which laches will run against express trusts, courts of equity apply the rule in such cases less readily than in cases of constructive or resulting t^ust:^, and rarely ever do so unless the lapse of time is of such dura- tion, and the circumstances of such character, as to indicate clearly a relinquishment or abandonment thereof, or unless a situation has arisen in the nature of an estoppel which will make it clearly inequit- able and unjust to enforce it." Kel- ler V. Washington, 83 VV. Va. 659, 98 S. E. 880. Generally, any legal disability will excuse delay. Pat- rick V. Stark, 62 W. Va. 602, 59 S. E. 606. Infancy, idem. Coverture, idem; Waldron v. Harvey, 54 W. Va. 608, 46 S. E. 603, 102 Am. St. Rep. no9. Insanity, Trowbridge v. Stone's Admr., 42 W. Va. 454, 26 S. E. 363. See Browning v. Brown- ing, 85 W. Va. 46, 100 S. E. 860. For a full discussion of the sub- ject of laches, vide Hogg, Eq. Prin., c. 35. 150 Ante, § 385 ; Wood, Lim. Ac, 495. 151 Wood, Lim. Ac, pp. 495, 496; Rowan v. Chenoweth, 49 W. Va. 287, 38 S. E. 544, 87 Am. St. Rep. 996. 152 Lawrence v. Winifrede Coal Co., 48 W. Va. 139, 35 S. E. 925; Bentley v. Standard Fire Ins. Co., 40 W. Va. 729, 23 S. E. 584. When an amendment is made to a declaration increasing the amount of damages claimed, the time as to the larger claim made by the amend- ment, whether under the statute of limitations or under a clause of an insurance policy fixing a limitation of action under it, will stop running at the commencement of the suit, '\nd not continue to the filing of the second amended declaration. Bent- ley V. Standard Fire Ins. Co., supra. But a suit brought against the personal representative of a dece- dent upon a claim originating in the lifetime of the decedent does not stop the running of the statute upon sucli claim as to the heirs at law of the decedent. Saddler v. Kennedy, 26 W. Va. 636. See ante, § 385, note 88, and cases cited. §389 Equity Procedure 502 the statute alone for the exceptions saving the right of a plain- tiff from the operation of the act of limitations.^^' Accordingly, it is provided by statute in the Virginias that, if any person be an infant, married woman (unless the suit concern her separate estate), or insane at the time when the right of a personal action accrues, such person may bring suit within the like number of years after becoming of full age, i53Bickle V. Chrisman, 76 Va. 678. In Demarest v. Wynkoop, 3 John. Ch. (N. Y.) 142, Chancellor Kent said: "The doctrine of any inherent equity creating an exception as to any disability where the statute of limitations creates none, has been long, and I believe uniformly, ex- ploded." After quoting from the latter case. Staples, J., in Bickle v. Chrisman, supra, continues : " 'There is no dispensing power,' says Mr. Justice Story, 'which the courts possess, arising from any cause whatever. Where the legislature gives an extension of time in cases of infancy, coverture, and the like, It is an assumption of legislative authority to introduce any other.' See also Mclver v. Ragan, 2 Wheat. 29; Angel on Limitations, §§61, 201, 485 ; 6 Otto, 704. "In Beckford v. Wade, 17 Vesey Reports, 87, Sir William Grant ad- "^rted to the case of a defendant absent or out ot the realm, before statute of Queen Anne. He said u, plaintiff out of the realm might prosecute a suit by attorney; but when the defendant is out of the realm, it is very hard to call upon the rilaintiff to institute a, suit, which, in most cases, must be wholly fruitless, and yet until this statute of Queen Anne was made, that case formed no exception, and the statute of limitations barred the action. "It has also been held that in- fants, like other persons, would be barred by an act limiting suits at law, if there was no saving clause in their favor. Angel on Limita- tions, p. 205. "Indeed, the principle seems to be well settled that unless there can be found in the statute itself some ground for restraining it, it can not be restrained by arbitrary additions or amendment. Unless, therefore, we are prepared to limit the opera- tion of the 16th section by some sort of judicial legislation, we must hold that the lapse of five years is an absolute bar to a suit to im- peach the conveyance, gift or as- signment, unless, indeed, the plain- tiff is laboring under some disabil- ity expressly provided for under the general statute of limitations." Equity recognizes the same excep- tions to operation of the statute that are recognized in courts of law. Newberger v. Wells, 51 W. Va. 624, 42 S. E. 625. "Limitations run against persons under disability unless there is an express saving in the statute in their favor." McGraw v. Rohr- brough, 74 W. Va. 285, 82 S. E. 217, involving the right of an infant to redeem land sold to the state for taxes. 503 Pleas in Bar §389 unmarried, or sane, that is allowed to a person having no such impediment to bring suit after the right accrues."* These disabilities are applicable to all kinds of suits of a personal nature and, therefore, to suits to enforce the payment of judg- ment and other liens.^" Under this statute the disability or impediment to sue must exist at the time the right of suit accrues,^" otherwise the statute continues to run against the right of action."' Hence, if the right of property is acquired during infancy, the statute ordinarily does not begin to run against a right of action concerning it until this disability is removed ; *^^ but if the right to sue accrued to the ancestor dur- ing his lifetime, the statute continues to run after his decease against his heirs, regardless of the fact that they are infants.^^^ As to real estate, the period of limitation in West Virginia is five years after the disability is removed, or the death of the party, whichever shall first happen, and in Virginia ten years.^^" 154 Va. Code, 1904, §2931; W. Va. Code, 1913, c. 104, § 16. 155 W. Va. Code, 1913, c. 139, § 11 ; Va. Code, 1904, § 3578. As to the qualifications of this statute in Virginia, vide Code, 1904,' § 3579. 156 Mynes v. Mynes, 47 W. Va. 681, 35 S. E. 935; Parsons v. Mc- Cracken, 9 Leigh (Va.) 495. "If party claims benefit of saving for infants and femes covert in stat- ute of limitations, no other disabil- ity is available than the one which existed when the right of action accrued. One can not be mounted on another, so as to present con- tinuous obstructions; therefore, the disability of marriage can not be tacked on to that of infancy. "Quoad two or more disabilities ■coexisting in the same person when his right of action accrues, the rule is different, and he is not obliged to act until the last is removed." Blackwell v. Bragg, 78 Va. 529. Ac- cord, in case of infancy and cover' ture coexisting, Blake v. Hollands worth, 71 W. Va. 387, 76 S. E. 814, 157 Wilson V. Harper, 25 W. Va, 179; Rowan v. Chenoweth, 49 W Va. 287, 38 S. E. 544, 87 Am. St Rep. 796; Pickens v. Stout, 67 W, Va. 422, 68 S. E. 354. i58Baird v. Bland, 3 Munf. (Va.) 570; Hudson v. Hudson, 6 Munf. (Va.) 352; Hansford v. Elliott, 9 Leigh (Va.) 79. 159 See citations in note 157, su- pra. The disability of infancy of one cotenant will not aid another cotenant. Pickens v. Stout, 67 W. Va. 422, 68 S. E. 354; Redford v. Clarke, 100 Va. 115, 40 S. E. 630. leo W. Va. Code, 1913, c. 104, § 3; Va. Code, 1904, §2917; Waldron v. Harvey, 54 W. Va. 608, 46 S. E. 603, 102 Am. St. Rep. 959; Pickens V. Stout, 67 W. Va. 422, 68 S. E. 354. §389 EQmTT Procedube 504 But in neither of these states can a suit be brought, concern- ing either real or personal property, after the expiration of twenty years from the time the right to sue accrues, though such disability may have continued during the whole of such period."^ Hence a claim of a wife against her husband is not barred until the expiration of twenty years from the time the cause of action accrues. ^^^ The institution of a creditors' suit, or an order of reference made to ascertain and report the liens and their priorities on land in a suit by a single plaintiff to enforce a judgment or other lien, will stop the running of the statute of limitations as to the other creditors of the debtor against whom suit has been brought.^^' But as to an offset 161 Va. Code, 1904, §§2918, 2931; W. Va. Code, 1913, c. 104, §§4, 16; McMurray v. Dixon, 105 Va. 605, 54 S. E. 48l". leaRighter v. Riley, 42 W. Va. 633, 26 S. E. 357. Dent, J., in this case, says: "A wife's claim against her husband ia not barred by the statute of limita- tions during coverture, if at all, un- less twenty years have elapsed from the making or the renewal thereof. Section 16, chapter 104, of the Code. It is true that it is inadvertently admitted in the case of iliUer v. Cox, 38 W. Va. 747, 18 S. E. 960, following the case of Bank v. Atkin- son, 32 W. Va. 203, 9 S. E. 175, that married women are subject to the statute of limitations to the same extent as if they were single. This, however, ia a mistake. Owing to their coverture and their recog- nized subjection to the control of their husbands, they are especially exempted from the operations of the statute." As to the rule in Virginia, see De Baun's Exrx. v. De Baun, 119 Va. 85, 89 S. E. 239. 163 Repass v. Moore, 96 Va. 147. 30 S. E. 458; Rowan v. Chenoweth, 49 VV. Va. 287, 38 S. E. 544, 87 Am. St. Rep. 996; Keck v. AUender, 42 W. Va. 420, 26 S. E. 437; Houck v. Dunham, 92 Va. 211, 23 S. E. 238; Gunnell's Admr. v. Dixon's Admr., 101 Va. 174, 43 S. E. 340; Robin- ett's Admr. v. Mitchell, 101 Va. 762, 45 S. E. 287, 99 Am. St. Rep. 928: Smith V. Moore, 102 Va. 260, 46 S. E. 326; Castleman's Admr. v. Cas- tleman, 67 W. Va. 407, 415, 68 S. E. 34, 28 L. R. A. (N.S.) 393. "The statute began to run against Leonard in Chenoweth 's lifetime, and his death did not stop it, even thoviiili he had no representative. JJandii V. S7iiith, 30 W. Va. 195 (3 S. K. 604 ) ; Wilson v. Harper, 25 idem 179; Mynes v. Mynes, 47 idem 681 (35S. E. 935). When did the stat- ute stop running against Leonard? By various decisions it ran on until the court made a reference for the benefit of all creditors to ascertain and decree their debts. Laidley v. Kline. 23 W. Va. 565: Bank v. Bays, 37 idem 475 (16 S. E. 561). Those cases were suits by individual cred- 505 Pleas in Bab §389 relied on by a defendant, the statute does not cease to run until the filing of the answer and account of offsets in the cause.^*'' Neither mere ignorance nor want of knowledge of his rights on the part of a creditor, in the absence of fraud or con- cealment by the debtor,*^^ nor poverty nor inability to hear liti- gation, will arrest the running of the statute of limitations.^^^ So, once the statute has begun to run, the insanity or other disability of the debtor does not suspend the running. of the statute.!" itors against estates. Until refer- ence it could not be known that the suit would go on for all; hence the other creditors might till then sue. But we think that when an ad- ministrator brings such a suit as this, as the estate's representative, to administer the personal estate, and apply it and the realty both for all creditors, it is a guaranty of prosecution to the end; the credit- ors may demand that it go on, and the statute stops running against creditors at its institution. The Code gives the personal representa- tive power to bring such a suit as the vehicle of relief for all creditors, gives him a right to do so to the exclusion of creditors for six months after the qualification of a repre- sentative; and this statute would contemplate the cessation of the statute of limitations at the date of such suit. Code 1899, chapter 86, section 7. When one creditor sues expressly for all creditors, the stat- ute stops at date of suit. Jackson V. Bull, 21 W. Va. 612; Dunfee v. Childs, 45 idem 155 (30 S. E. 102)." Rowan v. Chenoweth, supra. But the statute is suspended only as to those creditors who come into the suit or are otherwise made par- ties. Callaway's Admr. v. Saun- ders, 99 Va. 350, 38 S. E. 182. "But such former suit and decree and the provision of said section 19 of chap- ter 104 of the Code (§4432) will not protect against the bar of the statute of limitations, judgment or other creditors not made parties to such former suit, or who fail to ap- pear and prove and have their judg- ment or other liens allowed by the commissioner against such other judgment or other lien debtors." Bent v. Read, 82 W. Va. 680, 97 S. E. 286. See, Davis v. Halstead, 70 W. Va. 572, 74 S. E. 725. The stat- ute is suspended only as long as the suit is pending. Prince's Admr. v. McLemore, 108 Va. 269, 61 S. E. 802. See post, § 393. 164 Hurst v. Hite, 20 W. Va. 183; Rowan v. Chenoweth, 49 W. Va. 287, 38 S. E. 544, 87 Am. St. Rep. 996; Boyd v. Beebe, 64 W. Va. 216, 61 S. E. 304, 17 L. R. A. (N.S.) 660. i65Bickle v. Chrisman, 76 Va. 678; Foster v. Rison, 17 Gratt. (Va.) 345; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, 23 L. R. A. (N.S.) 775. .Ah to the nature of the fraud which will suspend the stat- ute, see ante, § 380. issVoight V. Raby, 90 Va. 799, 20 S. E. 824. 167 Grady v. Wilson, 115 N. C. 344, 20 S. R. 518, 44 Am, St. Rep, 4&1, §390 EQmTT Peoceduke 506 § 390. What will relieve from the bar of the Statute of Limita- tions — Further considered — New promise. It is provided by statute in the Virginias that when a right of action to recover money has accrued upon an award or con- tract, and the person against whom the right has accrued shall, by a writing signed by him or his agent, promise payment of money on such award or contract, suit may be maintained for the money so promised within such number of years after such promise, as it might originally have been maintained within, upon the award or contract.^*^ And an acknowledgment in' writing signed as above stated, from which a promise may be implied, shall be deemed a promise of payment."' But a new promise, to remove the bar of the statute of limitations, must be determinate and unequivocal; and to imply a promise of pay- ment from a subsequent acknowledgment, such acknowledg- ment must be an unqualified admission of a subsisting debt which the party is liable and willing to pay.^'" "When the promise does not specify any amount, but is sus- ceptible of being made certain as to the amount, extrinsic evi- dence is admissible for that purpose.^'^ And it is not essential to the sufficiency of the promise that it necessarily, under all circumstances, be made to the payee himself.^''^ A statement 168 W. Va. Code, c. 104, § 8 ; Va. Noffsinger, 82 Va. 523 ; Cole's Admr. Code, 1904, § 2922. Where the writ- v. Martin, 99 Va. 223, 37 S. E. 907; ing purports to have been signed by Dinguid v. Schoolfield, 32 Gratt. an agent, proof of the agency is (Va.) 803; Rowe v. Marchant, 86 necessary. Walter v. Whiteacre, 113 Va. 177, 9 S. E. 905; Quarrier v. Va. 150, 73 S. E. 984. , A bankrupt Quarrier, 36 W. Va. 310, 15 S. E. may bind himself to pay a barred 154; Bank of Union v. Nickel!, 57 debt by a new promise and his cred- W. Va. 57, 49 S. E. 1003, and eases itors can not object. Robinson v. cited; Griffith y. Adair, 74 W. Va. Bass' Admr., 100 Va. 190, 40 S. E. 646, 82 S. E. 479; Kesterton's 660. Admr. v. Hill, 101 Va. 739, 45 S. E. lO'j W. Va. Code, 1913, c. 104, § 8; 288. Va. Code, 1904, § 2922. "i Cole's Admr. v. Martin, 99 Va. 170 Bell V. Morrison, 1 Pet. (U. 223, 37 S. E. 907. But sec, Griffith S.) 360, 7 L. Ed. 174; Bell v. Craw- v. Adair, 74 W. Va. '146, 82 S. E. ford, 8 Gratt. (Va.) 110; Aylett v. 479. Robinson, 9 Leigh (Va.) 45; Sut- "2 Dinguid v. Schoolfield, 32 ton 1. Burruss, idem 381; Switzer v. Gratt. (Va.) 803. 507 Pleas in Bar §390 of account will not stop the running of the statute on the sepa- rate items of the account stated, which would otherwise be In this cabt; the acknowledgment was made in a deposition taken in a case to which the obligee was not a party. Burks, J., in holding this acknowledgment sufficient, in his opinion says: "The next and only remaining ground of error alleged is, that the plaintiff, not being a party to the suit in which the depo- sition was taken, the statements therein can not be construed as ad- missions or acknowledgments made to him, and that no promise of pay- ment can be implied from an ac- knowledgment of a debt so as to take it out of the operation of the act of limitations, unless such ac- knowledgment be made to the cred- itor to whom the debt is owing, or to some person representing him by authority. '"In Joynes on Limitations, 120, the learned author says of the ques- tion here presented that 'since it has been established that a. new promise, express or implied, is nec- essary to defeat a plea of the act of limitations, and that such new promise operates as a new cause of action, it lias been frequently held, as it was before, that the promise need not be made directly to the creditor himself, or to any person representing him, or entitled to de- mand payment of the debt, but may be made to a third person, or in- ferred from an acknowledgment inter alias'; and he cites many case" in which the principle is ap- plied. ''lie refers also to several elemen- tary works, among them 2 Story, Eq. Juris., 909 (ed. 1843), in which the contrary doctrine is laid down and the authorities for it cited, which, in his opinion, do not sustain the text. But he concludes what he has to say on the subject with the remark (p. 123), that 'the doctrine in question certainly furnishes a valuable security against the infer- ence which has too often been drawn from careless conversation with third persons, and tends strongly to advance the policy of the legisla- ture.' "Since the publication in 1844 of this excellent treatise on limitations there have been numerous decisions, both in England and the United States, adverse to the views ex- pressed by the distinguished author, and it is said, in a recent work of merit, that according to the very decided weight of the latest deci- sions in this country, a promisu to pay a debt, made to a person not legally or equitably interested in the same, and who does not pretend to have had any authority from the creditor to call upon the debtor in relation to tlie debt, will not avoid the bar of the statute. In support of tliis proposition the following cases are cited, which we have ex- amined, and they seem to be in point: Ringo v. Brooks, 26 Ark. R. 540; GilUngham v. GUlingham, 17 Penn. St. R. 302; Moorehead v. Wriston, 73 IC. Car. R. 398; Parker v. Slierford, 75 idem 219; Wachler V. Allee, SO III. R. 47; McOrew v. Forsyth, idem 506; Kisler v. San- ders, 40 Ind. R. 78; S%oert\. Wilder, 16 Kans. R. 176; S. C. 22 Am. Rep. 280; Fletcher V. Updike, 3 Hun, [18] §390 Equity Proceduee 508 barred, unless there be a writing signed by the party to be charged or his agent, expressly promising to pay the balance thus ascertained to be due.^''^ Nor in any ease can the personal 350; Cope, Girarden County v. Earhinson, 58 Mo. E. 90; Trousdale V. Anderson, 9 Bush. (Ky.) R. 276. See also the cases referred to in notes of the American editors to Whitcomb v. Whiting, 1 Smith's Lead Cas., part 2, marg. p. 726, where it is said to be well settled, both on authority and principle, that the debt will not be revived by an entry or memorandum, not form- ing part of a mutual account, on the books or papers of the debtor, or by a mere declaration or admission to a third person, meant only for his ear, and not intended to be com- municated to the creditor. "The diversity in the earlier and later decisions is attributable, for the most part, to the different and somewhat antagonistic theories en- tertained at different periods con- cerning the design and policy of the statute. Under the leadership of Lord Mansfield, it was for a long time considered and held that un- der the statute lapse of time raises a mere presumption of satisfaction, \yhich, like other presumptions, might be repelled, and hence that a new promise of the debtor, whether express or implied, was only evi- dence of the p.e-existing debt and gave no new cause of action. Sub- sequently, this theory was over- turned and succeeded by a course of decisions, initiated and fostered by Chief Justice "est, which regarded and construed the statute as one of repose, and the new promise as a new contract and actionable as such. This view ia now generally accepted. Sibert v. Wilder, 16 Kans. E. 176, and cases cited. It would seem to follow logically that the promise, to be sufficient to take the case out of the statute, should be made di- rectly or mediately to the creditor, or at least for his benefit, so that he may be able to maintain an ac- tion upon it. It is said that the declaration or admission to a third person is deemed insufficient, not so much because the acknowledgment is made to a stranger as because there is no sufficient evidence of an intention to contract. 1 Smith's Lead. Cas., part 2, marg. p. 976. "We do not consider the judgment under review as conflicting with the recent decisions which have been cited. The deposition of the plain- tiff in error was given, probably at his own instance, for the very pur- pose of establishing, among other claims, the validity and binding force upon him of the debt, the re- covery of which is now sought to be defeated by reliance on the act of limitations, and it was because of his sworn statements that he re- ceived credit for the debt on his bonds. He must therefore be un- derstood to have intended that his acknowledgment of the debt, under the attending circumstances, should be accepted as such and confided in and acted upon by the creditor to whom the debt was due. He can not be allowed to take the benefit of the acknowledgment and then repudiate its obligation." I'sJlagarity v. Shipman, 93 Va. 64, 24 S. E. 466 ; Gover v. Chamber- 509 Pleas in Bab §391 representative of a decedent create in any manner a new prom- ise so as to relieve a claim against the estate of his decedent from the operation of the statute of limitations.^'* Nor can a writing containing a promise or acknowledgment of the debt by the debtor be used to relieve from the effect of the running of the statute of limitations unless it has been properly delivered by such debtor.^'^ So, entries by a party in his own books of aeeounit will not relieve from the bar of the statute.^'* § 391. What will relieve from the bar of the Statute of Limita- tions — Further considered — Obstructions to plaintiff's right of suit. It is provided by statute in the Virginias, that where any such right as is mentioned in the general statute of limitations^'' shall accrue against a person who had before resided in the state, and such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right (and in West Virginia, if such right has been or shall hereafter be ob- structed by war, insurrection or rebellion), the time that such obstruction may have continued shall not be computed as any part of the time within which such right might or ought to have been prosecuted.^'* But this section is not applicable to a per- lain, 83 Va. 286, 5 S. E. 174; Stiles by such a new promise. W. Va. V. Laurel Fork 0. & C. Co., 47 W. Code, 1913, u. 104, § 9. Va. 838, 35 S. E. 986. A mere i75 Cann v. Cann, 40 W. Va. 138, promise to settle an account and to 20 S. E. 910. pay the amount to be found due i^o Stiles v. Laurel Fork O. & C. upon such settlement will not sus- Co., 47 W. Va. 838, 35 S. E. 986. pend operation of the statute pend- m Va. Code, 1904, c. 139 ; W. ing such settlement. Liskey v. Paul, Va. Code, 1913, e. 104; ante, §389. 100 Va. 764, 42 S. E. 875. i^s W. Va. Code, 1913, c. 104, "4 W. Va. Code, 1913, c. 104, § 9; § 18; Va. Code, 1904, § 2933; Fisher Stiles V. Laurel Fork 0. & C. Co., v. Hartley, 48 W. Va. 339, 37 S. 47 W. Va. 838, 35 S. E. 986; Van E. 578; Ficklin v. Carrington, 31 Winkle v. Blackford, 33 W. Va. 573, Gratt. (Va.) 219; Walsh v. Sehill- 11 S. E. 26. Nor can one joint con- ing, 33 W. Va. 108, 10 S. E. 54. tractor bind another joint contractor See additional cases cited in follow- ing foot-notes. §391 Equity Peoceduee 510 son jointly or severally liable with him so obstructing such right, if the right as to such other person is not so obstructed.''" "And upon a contract which was made and was to be performed in another state or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred by the laws of such other state or country. ' ' '^'' Under this statute, the bare removal from the state by a party who had before resided in the state, is an obstruction to the right of suit,'^' and it is not necessary to show how it constitutes an obstruction.!^^ It is held in Brown v. Butler,*^' that the departure from the state must be with the intention of chang- ing the defendant's residence.'** But in Holliday v. Lilt'e- 179 W. Va. Code, 1913, c. 104, §18; Va. Code, 1904, §2933; Mc- Clanahan's Admr. v. Norfolk & W. E. Co., 118 Va. 388, 87 S. E. 731. See Cohen v. Jenkins, 125 Va. 635, 100 S. E. 678. ISOW. Va. Code, 1913, e. 104 § 18; Va. Code, 1904, §2933. 181 Fisher v. Hartley, 48 W. Va. 339, 37 S. E. 578; Ficklin v. Car- rington, 31 Gratt. (Va.) 219; Abell V. Penn. Mutual Insurance Co., 18 W. Va. 400; Cheatham v. Aistrop, 97 Va. 457, 34 S. E. 57; Lamon v. Gold, 72 W. Va. 618, 79 S. E. 728; Batten v. Lowther, 74 W. Va. 167, 81 S. E. 821; Howard v. Blair, 83 W. Va. 561, 98 S. E. 435. 182 Fisher v. Hartley, 48 W. Va. 339, 37 S. E. 578; Abell v. Penn. Mutual Insurance Co., 18 W. Va. 400; Lamon v. Gold, 72 W. Va. 618, 79 S. E. 728; Howard v. Blair, 83 W. Va. 561, 98 S. E. 435. 183 87 Va. 621, 13 S. E. 71; Grif- fin V. Woolford, 100 Va. 473, 41 S. E. 949. "When there is no estrangement between husband and wife, and they are not living separately and apart. and he continues to reside and maintain a fixed and permanent residence and place of habitation in this state, where personal service of process, or its equivalent, may be lawfully had upon her, her tempo- rary absence to nurse and care for a, sick or disabled son located in an- other state or territory will not in- terrupt the running of the statute of limitations of a suit by a judg- ment creditor to sell for her debts her lands located in this state." Bent V. Read, 82 W. Va. 680, 97 S. E. 286. But a mere occasional return to the state will not relieve from sus- pension of the statute. Batten v. Lowther, 74 W. Va. 167, 81 S. E. 821. 181 It is said by the author of Barton's Law Pr., vol. 2, note, p. 793, that Brown v. Butler overrules Ficklin v. Carrington. But the learned author is in error as to this. See opinion of Cardwell, J., in Cheatham v. Aistrop, 07 Va. 457, 34 S. E. 57, cited above. Also see How- ard V. Blair, 83 W. Va. 561, 98 S. E. 435. 511 Pleas in Bar § 391 page,"5 it is held that, if the debtor leaves the state under an agreement with the creditor that no suit is to be brought until his return, the period of the debtor's temporary absence from the state will be eliminated from the statutory period of time in which the claim might otherwise be barred. However, to make the statute available to relieve from the operation of the limitation, the defendant must have been a resident of the state at the time the transaction occurred out of which the cause of action arose.^^^ It is immaterial, however, whether he departs from the state before or after the right of suit accrues, if he were a resident of it when the transaction was had upon which the cause of action depends. ^^'^ When a voluntary deed has been concealed by the parties and withheld from recordation, with intent to prevent the grantor's creditors from knowing of its existence, this constitutes an obstruction to the right of suit, so that the time during which the obstruction thus existed is deducted from the statutory period of limitation. ^^^ It is held, in Thompson v. Whitaker Iron Co.,^^^ that under this statute it requires some positive — that is, affirmative — act by the defendant to operate under this clause of the statute, "or any other indirect ways or means that will obstruct the prosecution of such right." Bare silence will not do so. There must be an act designed to conceal the existence of liability and operate in some way upon the plaintiff, and thus prevent or delay suit upon it.^'" 18.12 Munf. (Va.) 316. But see Jamieson v. Potts, 25 L. Tl. A. (N. Clark V. Nave's CredLtors, 116 Va. S.) 24, 10.5 Pac. 93 (Or., 1009). 838, 83 S. E. 547. , iss Reynolds v. Gawthrop, 37 W. 188 Walsli V. Schilling, 33 W. Va. Va. 3, 16 S. E. 364. 108, 10 S. E. 54; Batten v. Lowther, iso 41 W. Va. 574, 23 S. E. 795. 74 W. Va. 167, 170, 81 S. E. 821; loo See Vanbibber v. Beirne, 6 Griffin V. Woolford, 100 Va. 473, 79 W. Va. 179; Culpepper Nat. Bank S. E. 728; Kesterton's Admr. v. v. Tidewater Imp. Co., 119 Va. 73, Hill, 101 Va. 730, 45 S. E. 288; 89 S. E. 118. Templeman's Admr. v. Pugli, 102 "The word olstruct, as here used, Va. 441, 46 S. E. 474. does not mean to prevent altogether, IS? Walsh V. Schilling, 33 W. Va. but it rather means to interrupt, to 108, 10 S. E. 54; Heffelbower v. impede or embarrass the creditor in Detriek, 27 W. Va. 16; note to the pursuit of any of his remedies, § 392 Equity Procedure 512 § 392. What will relieve from the bar of the Statute of Limita- tions — Further considered — Deduction of certain periods of time. It is provided by statute in Virginia, that, in applying the statute of limitations to any action or other proceeding, the period between the seventeenth day of April, eighteen hundred and sixty-one, and the second day of March, eighteen hundred and sixty-six, as well also as the period between the second day of March, eighteen hundred and sixty-six, and the first day of January, eighteen hundred and sixty-nine, and the period of one year from the death of any party, shall be excluded from the computation of time within which, by the operation of any statute or rule of law, it may be necessary to commence any proceeding to preserve or prevent the loss of any right or remedy.-''^ And in West Virginia it is provided by statute that the period from the seventeenth day of April, one thousand eight hundred and sixty-one, to the first day of March, one thousand eight hundred and sixty-five, shall be excluded in computing the time of the statutory limit, as to all purely per- sonal actions at law pending at the time the act took effect as amended. ^^^ The Virginia statute applies to all suits to be brought or other acts to be done, so as to save any right from the bar of the act of limitations to the extent of the time pro- vided for in the statute.^'' In West Virginia, the statute ap- plies only to suits pending at the time when it took effect or went into operation."'' wliether by execution, action, scire 2S Graft. (Ya.) 423; .Justia v. Eng- facias or by suit in equity." Lamon lish, ,30 Gratt. (Va. ) .16.1; Tunstall V. Gold, 72 W. Va. 618, 624, 79 S. v. Withers, 86 Va. Sl»2, II S. E. E. 728. .505; Kerlin v. Kerlin, 85 Va. 475. See ante, § 380, and cases cited. 7 S. E. 849; Virginia ]\lin. & Imp. ini Va. Code, 1904, S 2919. Co. v. Hoover, 82 Va. 449, 4 R. E. 195 W. Va. Code, 1913, c. 136, §4. 689. 10:! Danville Bank v. Waddill, 27 '"i Hurst v. Hite, 20 W. Va. 183; Gratt. (Va.) 448; Johnston v. Gill, Maslin v. Hiett, 37 \V. Va. 15, 16 27 Gratt. (Va.) 687; Bor.st v. Nalle, S. E. 437. 513 Pleas in Bar § 393 t § 393. What will relieve from the bar of the Statute of Limita- tions — Further considered — One year after abatement of suit. It is provided by statute in West Virginia that ' ' if any action commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action commenced within due time, judgment (or other and further proceedings) for the plaintiffs should be arrested or reversed, on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the said cause having been dismissed for want of security for costs, or by reason of any other cause, which could not be plead in bar of an action, of the loss or destruction of any of the papers or records in a former suit which was in due time ; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or such arrest or reversal of judgment, or such loss or destruc- tion but not after. "-^^^ Under the Virginia statute it was held that the part of it authorizing a new "action" within a year after the abatement of a former action seasonably commenced, or the reversal of a judgment on a ground not precluding a new action for the same cause, does not apply to equitable pro- ceedings;^^* but under subsequent amendments of the Code of Virginia, 1887,-'^^'^ authorizing a new suit where the plaintiff has proceeded in the wrong forum or brought the wrong form of action, it would now be otherwise.^'* The statute does not apply 195 W. Va. Code, 1913, c. 104, i" Acts, 1893-94, p. 789'; Acts, § 19. See Va. Code, 1904, § 2934. 1897-98 p 252 This statute applies to botli suits in „^ ^^^^^^ ^^ ^^^^ York, P. & N. equity and actions at law. Hevener „ ' V. Hintiah, .-59 W. Va. 476, 53 S. E. Co., 96 Va. 733, 32 S. E. 778. Un- 635. See Rrowning v. Browning, der the law as it was prior to the 85 W. Va. 46, 100 S. E. 860. amendments above referred to, a 196 Dawes v. New York, P. & N. chancery suit improperly brought R. Co., 96 Va. 733, 32 S. E. 778. ^„j ^hcn dismissed for want of §394 Equity Procedure 514 to a nonsuit or any voluntary dismissal.^" But where the process commencing a suit is void, and for that reason quashed on motion of the defendant, the statute applies and a new suit may be brought within one year after the dismissal of a former suit on such ground.^"" The mere issuance of the summons, though not properly served, will save the bar of the statute of limitations.^"^ The statute applies alike to suits at law and in equity, where there has been a loss or destruction of any of the papers or records in a former suit, which had been brought in due time.^"^ § 394. As to the miming of the statute of limitations against the state and municipalities. The statute of limitations applies to the state by statute in West Virginia, unless otherwise expressly provided ; ^°' while in Virginia it does not so apply, unless the statute so provides in express terms.^''* And, when no sovereign right is involved, the statute runs against public corporations, whether municipal jurisdiction was not within the statute so as to save the bar to a subsequent action at law. Gray v. Berryman, 4 Munf. (Va.) 181. 198 Laurence v. Winifrede Coal Co., 48 VV. Va. 139, 35 S. E. 92.5; Tompkins v. Pacific, etc., Ins. Co., 53 W. Va. 479, 44 S. E. 439, 62 L. R. A. 489, 97 Am. St. Rep. 1006. It is otlierwise if the nonsuit is set aside; at least, in West Virginia. Duty V. C. & 0. Ry. Co., 70 W. Va. 14, 73 S. E. 331. 200 Ketterman v. Dry Fork R. Co., 48 W. Va. 606, 37 S. E. 683. But see opinion of the court in Noell v. Noell, 93 Va. 433, 25 S. E. 242. Likewise, where the action is erro- neously dismissed on a plea in abatement. Ryan v. Piney Coal Co., 69 W. Va. 692, 73 S. E. 330. 201 United States Blowpipe Co. v. Spencer, 46 W. Va. 590, 33 S. E. 342; Columbia Finance & Trust Co. V. Fierbaugh, 59 W. Va. 334, 53 S. E. 468. 202 Dawes v. New York, P. & N. R. Co., 96 Va. 733, 32 S. E. 778; Ilevencr v. Hannah, 59 W. Va. 476, 53 S. E. 635. 20.TW. Va. Code, 1913, c. 35, § 20; State v. Sponaugle, 45 W. Va. 415, 32 S. E. 283: City of Wheeling V. Campbell, 12 W. Va. 6S; State v. Ilarman, 57 W. Va. 447. 50 S. E. S2S; Riffle v. Skinner, 67 W. Va. 75, 90, 07 S. E. 1075. 204 Va. Code, 1004, §2937; Hurst V. Dulany, 84 Va. 701, 5 S. E. 802; Eastern State Hospital v. Graves' Committee, 105 Va. 151, 52 S. E. 837, 3 L. R. A. (X.S.) 746; Norfolk & W. R. Co. V. Supervisors, 110 Va. 95, 65 S E. 531. 515 Pleas in Bar § 394 or simple agencies of the state, when they are clothed with the capacity to sue and be sued, to have a common seal, take and hold property and transact business within the scope of their corporate powers.^"^ The courts generally hold that where the demand or claim involved, asserted against a public or municipal corporation, does not infringe upon the sovereign rights of the people, such as the right of taxation, the right of eminent domain, the right to use and preserve the public highways, and other rights which pertain only to the sovereignty of the people, the statute of limitations applies to the state, cities and towns, as it does to natural persons and private corporations. Thus, it is said in Ralston v. Town of Weston, by Dent, J., who delivered the opinion of the court, "statutes of limitations, which are made to apply to the state, do not apply to the people or their public rights. But they only apply to the state (and, of course, to other municipalities or public corporations) in the same cases that they apply to individuals. The entry upon, or recovery of, lands held for sale, suits on bonds, contracts, evi- dences of debt, or for torts, — all these, though the state is a party, are subject to bar." ^"^ Hence, a sister state of the Union suing upon a private claim in another state is not exempted from the bar of the statute of limitations.^'" But wherever a sovereign right of the people is concerned, no statute of limita- tions and no laches or negligence of public officers charged with 200 McClanahan v. Western Luna- Hospital v. Graves' Committee, 105 tic Asylum, 88 Va. 4C6, 13 S. E. Va. 151, 52 S. E. 837, 3 L. R. A. 977; Asylum v. Miller, 29 W. Va. (N.S.) 746. 326, 1 S. E. 740, 6 Am. St. Rep. "A suit for the purpose of can- 644; Collett V. Board of Com'rs, 119 celling such a patent must be Ind. 27, 21 Is^ E. 329, 4 L. R. A. brought within ten years from the 321. But see, Eastern State Hos- date thereof, and this statute of pital V. Graves' Committee, 105 Va. limitation applies to a suit brought 151, 52 S. E. 837, 3 L. R. A. (N.S.) for that purpose by the state, as 746, overruling McClanahan v. well as to one brought by an indi- Western Lunatic Asylum, supra. vidual whose interests are in- 200 Ralston v. Town of Weston, 46 volved." State v. Miller, 84 W. V:t. W. Va. 544, 33 S. E. 326; Town of ' 175, 99 S. E. 447. Weston V. Ralston, 48 W. Va. 170, 207 Asylum V. Miller, 29 W. Va. 36 S. E. 446. Contra, Eastern State 326, 1 S. E. 740. § ^^^ Equity Proceduee 516 its care or preservation, can operate to defeat it.^"' Thus, the easement of the public in a highway, road, street, alley or other public thoroughfare, dedicated to the use of the general public by individuals, or acquired by eminent domain, can not be lost to the people by the negligence of public officers or the unlawful acts of individuals.^"' § 395. Burden of proof as to the statute of limitations. It is well settled that the party pleading, or relying upon, the statute of limitations has the burden of proof to show that the plaintiff's demand is within the bar of such statute.^" But he may rely upon the plaintiff's proof, if it, in fact, shows that the cause of action did not accrue within the statutory period.^'' § 396. Plea of the statute of frauds. If it appear on the face of the bill that the contract relied on is within the statute of frauds, the defendant may demur to the bill ; ^''■^ but if it does not so appear, such defense may be availed of either by answer ^^' or plea.^^* Where the bill alleges an agreement or contract which must be in writing and signed by the party to be charged thereby, but is silent as to whether such agreement or contract has been duly made by a 208 See the well-considered cases -'n Noell v. Xoell, 03 Va. 433, 25 of Ralston v. Town of Weston, and S. E. 242. Town of Weston v. Ralston, note 206 212 Shipman, Eq. PI., SnO; Story, supra, and the many authorities Eq. PI. (lOtli Ed.), §762, note; cited in the opinions. Cottington v. Fletcher, 2 Atk. 156; 209 Ralston v. Town of Weston, 46 Tarleton v. Vietes, 1 Gilman (111.) W. Va. 544, 33 S. E. 326; Norfolk 470, 41 Am. Dee. in3; 1 Beach. & W. Ry. Co. V. Supervisors, 110 Mod. Eq. Pr., § 308. See onie. § 329. Va. 95, 65 S. E. 531. 213 Lowry v. Buffington, 6 W. Va. 210 Goodell V. Gibbons, 91 A^a. 608, 249; Capohart v. Hale, 6 W. Va. 22 S. E. 504; Vashon v. Barrett, 99 547. A general denial in the an- Va. 344, 38 S. E. 200; Noell v. swer that the contract was made is Noell, 93 Va. 433, 25 S. E. 242; sufficient. §mith v. Peterson, 71 W. Hansborough v. Neal, 94 Va. 722, 27 Va. 364, 366, 76 S. E. 804; Eaves S-. E. 593; Virginia Ry. & P. Co. v. v. Vial, 98 Va. 134. 34 S. E. 978. Eerebee, 115 Va. 289, 78 S. E. 656. 2i4 Capehart v. Hale, 6 W. Va. 547; 1 Beach, l\Iod. Eq. Pr., § 308. 517 Pleas in Bar § 397 writing and as to the due signing of it, the defense must be raised by plea or answer, or such defense will be treated as waived by the defendant;^" and likewise, if the agreement or contract be admitted by the answer without any reliance upon the statute of frauds set up or pleaded in the answer.^" But if the bill sliows on its face a parol contract of itself invalid under the statute of frauds, as a contract for the sale of real estate, but also shows such facts as disclose such part perform- ance of the contract as to take it out of the statute of frauds, the statute can not be relied on by way of plea as a defense to the plaintiff's bill ^" unless the plea in such a case negative the averments in the bill which show such acts and transactions as operate to relieve from the effect of the statute.^^' § 397. Plea of any. other statute. A plea in bar founded upon statute is not confined to the statute of limitations and the statute of frauds, but any other statute barring a right of recovery may be pleaded, setting forth in the plea the necessary averments to bring the case within the statute.^'^ Thus, for instance, the statute against usury may be pleaded.^^" But, as a general rule, the defense of usury is a personal privilege of the debtor, and can be pleaded only by him.^^^ 215 Fleming v. Holt, 12 W. Va. Eq. PI. (9th Ed.), §760; 1 Dan., U3; Shipman, Eq. PI., 467. Ch. Pr., 457. 216 Fleming v. Holt, 12 W. Va. 220 Mem. The defense will be 143; Campbell v. O'Neill, 69 W. Va. waived unless relied upon by plea 459, 72 S. E. 732^ Moore, Keppel & or answer. Building & Loan Assn. Co. V. Ward, 71 W. Va. 393, 76 S. v. Westfall, 55 W. Va. 305, 47 S. • E. 807, Ann. Cas. 1914C, 263, and E. 74. It may be raised before a cases cited. commissioner in a creditor's suit. s" Tracy v. Tracy, 14 W. Va. Barbour v. Tompkins, 31 W. Va. 243; Lorentz v. Lorentz, 14 W. Va. 410, 7 S. E. 1. 809; Middleton v. Selby, 19 W. Va. 221 Smith v. McMillin, 46 W. Va. 167. 577, 33 S. E. 283; Moore v. John- 218 Barrett v. McAllister, 35 W. son, 34 W. Va. 672, 12 S. E. 918; Va. 103, 12 S. E. 1106; Eaves v. Barboui: v. Tompkins, 31 W. Va. Vial, 98 Va. 134, 34 S. E. 978. 410, 7 S. E. 1; Lee v. Eeamster, 21 210 Shipman, Eq. PI., 468; Story, W. Va. 108, 45 Am. Rep. 549; §398 Equity Procedure 518 § 398. Pleas of matter of record— Of former judgment. If the subject of controversy has already been finally de- termined in a court of law, the judgment at law may be pleaded in bar to a bill in equity which seeks relief upon the same cause of action.^^^ To constitute a sufficient plea founded upon a former judgment, it must appear that the court had jurisdic- tion of the parties ^^^ and of the subject matter in con- troversy ; ^" and that the matter was directly, and not merely collaterally, in issue in the former suit.^^^ That is, the matter relied on as res judicata must necessarily have been in issue and Dickenson v. Bankers', etc., Co., 93 Va. 408, 25 S. E. 548: Christian v. VVorsliara, 78 Va. 100: Hope v. Smith, 10 Gratt. (Va.l 221. "The plea of usury is personal to the debtor, and even a party wlio buys from the debtor land bound by a usurious mortfrafro can not plead usury to save his land, but must pay the full debt, because the de- fense can be made only by the debt- or." Lee V. Feamster, 21 W. Va. 113; Spengler v. Snapp, 5 Leigh (Va.) 478; Stuekey v. Middle States Loan, etc., Co., Bl" W. Va. 74, 55 S. E. 996, 8 L. R. A. (N.S.) 814, 123 Am. St. Rep. 977. However, legal, as distinguished from contractual, privies of the debtor may plead the statute. Harper v. Building Assn., 55 W. Va. 149, 152, 46 S. E. 817; Snyder v. Middle States Loan, etc., Co., 52 W. Va. 655, 661, 44 S. E. 250. 222 Story, Eq. PI., §783; Ship- man, Eq. PI., 468; 1 Beach, Mod. Eq. Pr., §§309, 310; Parsons v. Riley, 33 W. Va. 464, 10 S. E. 806; Hudson V. Iguano Land & Mining Co., 71 W. Va. 402, 76 S. E. 797. The judgment must be final in order to plead it as res j^iiHcata. Snow V. Rich, 22 Utah 123, 61 Pac. 336; Brown v. Bcckvvith, 58 W. Va. 140, 51 S. R. 977, 1 L. R. A. (N.S.) 778, 112 Am St. Rep. 955. .223Renick \. Ludingtoii, 20 W. Va. 511; Railway Co. v. Ryan, 31 VV. Va. 364, 6 S. E. 924, 13 Am. St. Rep. 865; Sayre v. Harpold, 33 W. Va. 553, 11 S. E. 16: Turpin v. Thomas, 2 H. and M. (Va.) 139, 3 Am. Dec. 61.1: Rlanton v. Carroll, 86 Va. 539, 10 S. E. 329; Gray v. Stuart & Palmer, 33 Gratt. (Va.) 351; Wilcher v. Robertson, 78 Va. 602; Smith v. White, 63 W. Va. 472, 60 S. E. 404, 14 L. R. A. (N. S.) 530; Iguano Land & Mining Co. V. Jones, 65 W. Va. 59, 64 S. E. 640: Linkous v. Stevens, 116 Va. 898, 83 S. E. 417. 224 McCoy V. McCoy, 29 W. Va. 794, 2 S. E. 809; Renick v. Luding- ton, 20 W. Va. 511; Sayre v. Har- pold, 33 W. Va. 553, 11 S. E. 16; Gibson v. Beckham, 16 Gratt. (Va.) 321 ; St. Lawrence Co. v. Holt et al.. 51 W. Va. 352, 360, 41 S. E. 351; Linkous v. Stevens, 116 Va. 898, 83 S. E. 417. 225 Western M. & M. Co. v. Va. C. C. Co., 10 W. Va. 250; Brown v. Beckwith, 58 W. Va. 140, 51 S. E. 977, 1 L, R. A. (N.S.) 778, 112 Am. St. Rep. 955; Perdue v. Ward, 106 S. E. 874 (W. Va. 1921). 519 Pleas in Bar §398 decided in the former suit.^^^ And the judgment is not only final, and pleadable as res judicata as to matters actually offered and received to sustain or defeat the claim, but also as to any and all other matters which right have been prcperly heard and considered in the former action.^^' It must further appear 226 McCoy V. McCoy, 29 W. Va. 704, 2 S. E. 800; Miller v. Peck, 18 W. Va. 75; Houser v. Ruffner, 18 W. Va. 244; Pennington v. Gillespie, 66 W. Va. 643, 650, 66 S. E. 1009; Carver v. Ward, 81 W. Va. 644, 95 S. E. 828; Perdue v. Ward, 106 S. E. 874 (W. Va. 1921). "A former adjudication, to work an estoppel on parties and privies, must be in relation to the same cause of action." Hays v. Har- ris, 73 W. Va. 17, 80 S. E. 827. But this general statement is subject to qualifications. It is not necessary that the causes of action be similar in toto. Hudson v. Iguano Land & Mining Co., 71 W. Va. 402, 76 S. E. 797; Pomeroy Nat. Bank v. Hunt- ington Kat. Bank, 72 W. Va. 534, 79 S. E. 662. Adjudication of a general "right, question or fact" may control property or a specific riglit not specifically litigated in the first action. Roller v. Murray, 71 W. Va. 161, 76 S. E. 172, Ann. Cas. 1914B, 1139; W. Va. Nat. Bank v. Spencer, 71 W. Va. 678, 77 S. E. 269. And hence adjudication of one right may be conclusive of another right, provided it be of the same class and of identical status. Custer V. Hall, 71 W. Va. 119, 76 S. E. 183. 227 Wandling v. Straw, 25 W. Va. 692; Sayre v. Harpold, 33 W. Va. 553, 11 S. E. 16: Biern v. Ray, 49 W. Va. 129, 38 S. E. 530; Lawson V. Conaway, 37 W. Va. 159, 16 S. E. 564, 38 Am. St. Rep. 17; Hoster, etc., Co. V. Stag Hotel Corporation, 111 Va. 223, 68 S. E. 50. See post, § 400, citing numerous cases apply- ing the same rule in equity. But the rule is not to be taken without qualifications. Central Banking, etc., Co. V. U. S. Fidelity, etc., Co., 73 W. Va. 197, 206, 80 S. E. 121 ; Hudson v. Iguano Land & Mining Co., 71 W. Va. 402, 76 S. E. 797; Pomeroy Nat. Bank v. Huntington Kat. Bank, 72 W. Va. 534, 79 S. E. 662. But see Perdue V. Ward, 106 S. E. 874 (W. Va. 1921). In considering the question of tho application of the principle stated in the text in Kelly v. Hamblen, 98 Va. 383, 36 S. E. 491, Keith, P., says: "It is true, as he con- tends, that the doctrine of res judi- cata embraces not only what was in point of fact adjudicated, but the judgment or decree is conclusive as to all questions in issue, whether formally litigated or not. 'It is not necessary to tlie conclusiveness of the former judgment or decree that the issue sliould have been taken upon tlie precise point whic!i it is proposed to controvert in the collateral action. It is sufficient if that point was essential to thp former judgment.* Every point which has been specifically decided, and by necessary implicatio». eveiv issue which must have been decided in order to support the judgment or decree, is concluded.' D'lelil v. Mar- chant, 87 Va. 447 (12 S. E. 803) : Wells on Res Judicata, p. 187; Dia- mond State Iron Co. v. Rarig, 93 Va. 595 (25 S. E. 894). "It is not necessary, however, to enlarge upon the familiar doctrine of res judicata, or to multiply 398 Equity Procedure 520 that the judgment in the former action was rendered upon the authorities upon the subject. We are of opinion that William J. Kelly, being in poaijcssion of lands confessedly liable to the lion nf tbo judgments asserted in tliis cause, can not escape that liability by vouching the record of a suit in which no effort was made to sub- ject the land in question to those judgments, and in which they could not have been enforced, as he was not a party to the proceeding. As we have said, diligent effort was made in that litigation to ascertain a subject upon which the lien of the judgments therein reported could be enforced. None such was discov- ered, and the bill was dismissed; and we know of no authority and of no principle which forbids a judgment creditor, under such cir- cumstances, to seek satisfaction out of property which he afterwards as- certains to be liable to his lien. We will not say that the judgment debt- ors in that case successfully con- cealed from their creditors the property out of which their demand might have been satisfied, b-jt we do say that the failure qf an effort, made in good faith io • object prop- erty in that "juit, which was held not to be riable, can not be inter- posed as a bar to the enforcement of a lien upon other property oon- fcssedly liable, but for the unavail- ing effort." "A Judgment is conclusive by way of estoppel as to facts without the existence and proof of admis- sion of which the judgment could not have been rendered. "A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposi- tion which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided." Blake v. Ohio R. E. Co., 47 W. Va. 520, 35 S. E. 953. "It is a just maxim of the law that no person shall be twice vexed for one and the same cause of ac- tion, but the justice of the maxim requires that the judgment or de- cree in a former suit, which is re- lied on as a bar to the subsequent suit, must have been rendered upon the merits of the controversy. The adjudication, when so made, it may be added, constitutes a bar not only to the points actually decided, but to every point which properly be- longed to the pai'ticular matter In litigation, and which the parties might have brought forward at the time, for a, party is required to present the whole of his case and not omit a part, which, by the exer- cise of reasonable diligence, he might have brought forward at the time. All those matters which were offered and received, or which might have been offered to sustain the particular claim or demand liti- gated in the prior suit, and all those matters of defense, which were presented or might have been in- troduced under the issue to defeat tlie claim or demand, are concluded by the judgment or decree in the former suit. It must, however, have been rendered in a proceeding between the same parties or their privies, and the matter in contro- versy must have been the same in the former suit as in the latter, and been determined on the merits. 521 Pleas in Bar §398 merits of the controversy,"* avd between the same parties or their privies.^^' But it is not necessary that precisely the same parties should have been plaintiffs or defendants in the former suit, provided the same subject matter in controversy between two or more of the parties to the two suits respectively has been in a former suit directly in issue and decided.^^" Chrisman v. Harman, 29 Gratt. 494 ; Diamond State Iron Co. v. Rarig, ■93 Va. 595 (25 S. E. 894) ; and Mil- ler V. Wills, 95 Va. 254 (28 S. E. 337)." Dillard v. Dillard, 97 Va. 434, 34 S. E. 60, at p. 61. See Beal v. Gordon, 2 Va. Dec. 35, 21 S. E. 667. The principle announced in the "text does not apply to a set-off, but it does to a payment. Kennedy v. Davisson, 46 W. Va. 433, 33 S. E. 291. A recovery in ti3spass is not conclusive as to title. Hoffman v. Shoemaker, 69 W. Va. 233, 71 S. E. 198, 34 L. R. A. (N.S.) 632. It does not matter whether the judgment be rendered upon default, agree- ment, confession, or upon an issue tried. Howard v. Huron, 5 S. D. 539, 59 N. W. 833, 26 L. R. A. 493: Hyatt V. Challiss, 59 Kan. 422, 53 Pac. 467; Curtis v. Deepwater Ry. Co., 68 W. Va. 762, 70 S. E. 776; Ohio River Railroad v, Johnson, 50 W. Va. 499, 40 S. E. 407. But see, Goff V. Goff, 78 W. Va. 423, 89 S. E. 9. 228 Burner v. Hevener, 34 W. Va. 774, 12 S. E. 861, 26 Am. St. Rep. 948; Mallory v. Taylor, 90 Va. 348, 18 S. E. 438; Brown v. Beckwith, 58 W. Va. 140, 51 S. E. 977, 1 L. R. A. (N.S.) 7V8, 112 Am. St. Rep. fl55; Richmond v. Sitterding, 101 Va. 354, 43 S. E. 582, 65 L. E. A. 445, 99 A. S. P. 879; Portsmouth Cottoii Oi! defining Corp. v. Oliver Reiining Co., Ill Va. 745, 69 S. E. &o8; Steinman v. Clinchiield Coal Corp., 121 Va. 611, 93 S. E. 684, and cases cited. 229 McCoy v. McCoy, 29 W. Va. 794, 2 S. E. 809; Kitty v. Fitzhugh, 4 Rand. (Va.) 600; Rogers v. Den- ham, 2 Gratt. (Va.) 200; Grass V. McMullen, 103 S. E. 51 (W. Va. 1920). Privies in such a sense that they are bound by the judgment of a court, are those who acquire an interest In the subject matter of the suit, after the rendition of the judgment. Fulton V. Andrea, 70 Minn. 445, 73 N. W. 256. "A privy in estate is not bound by a judgment or decree recovered against him from whom he derived liis estate, after he derived it, merely because of sucli privity." Hudkins V. Crim, 72 W. Va. 418, 78 S. E, 1043. 230 McCoy V. McCoy, 29 W. Va. 794, 2 S. E. 809. But the parties must have been adverse in the origi- nal suit. Central Banking, etc., Co. V. U. S. Fidelity, etc., Co., 73 W. Va. 197, 80 S. E. 121; Garrett v. South Penn Oil Co., 66 W. Va. 587, 66 S. E. 741. On the subject of res adjudicata, see the followinf;: iJcLaurin v. Kelly, 40 S. C. 486, 19 S. E. 143; Marrow v. Brinkley, 85 Va. 55, 6 §399 Equity Procedure 522 § 399. Pleas of matter of record continued — Of former judg- ment of a court of a foreign state or country. The sentence or judgment of a foreign court upon the same matter of controversy may be pleaded in bar to a bill in equity in like manner as a domestic judgment.^'' A judgment is treated as a foreign judgment when rendered by a court in another state of the Union, as well as when rendered by a court of a foreign state or country.^^' A judgment of a foreign court, when it has jurisdiction of the person of the defendant and the subject matter of the suit, is conclusive upon the merits of the case. It can be impeached only for want of jurisdiction or fraud in its procurement.^'^ S. E. 605 ; Heggie v. B. & L. Assn., 107 N. C. 581, 12 S. E. 275; North- western Bank v. Hays, 37 W. Va. 475, 16 S. E. 561; Kinports v. Raw- son, 36 W. Va. 237, 15 S. E. 66; Stockton V. Copeland, 30 W. Va. 674, 5 S. E. 143; Spotts v. Common- wealth, 85 Va. 531, 8 S. E. 375; Karn v. Rorer Iron Co., 80 Va. 754, 11 S. E. 431; Lawson v. Conaway, 37 W. Va. 150, 16 S. E. 564; New- berry V. Sheffy, 89 Va. 286, 15 S. E. 548; Shumate v. Supervisors of Fauquier Co., 84 Va. 574, 5 S. E. 570; Hanby v. Henritze, 85 Va. 177, 7 S. E. 204; State v. Cunningham, 33 W. Va. 607, 11 S. E. 76; Hukill V. Guflfey, 37 W. Va. 425, 16 S. E. 544 ; Bradley v. Zehmer, 82 Va. 685 ; Hooper v. Hooper, 32 W. Va. 526, 9 S. E. d37; Biern v. Ray, 49 W. Va. 129, 38 S. E. 530; Cox v. Crockett, 92 Va. 50, 22 S. E. 840. See numerous additional cases cited in Enc. Dig. Va. &, W. Va. Rep., under the title "Former Adjudica- tion." "1 Storv, Eq. PI. (9th Ed.), § 783; Shipman, Eq. PI., 469; Smith V. Walker, 77 Ga. 289, 3 S. E. 256; Roller V. Murray, 71 W. Va. 161, 76 S. E. 172, Ann. Cas. 1914B, 1139; Johnson Milling Co. v. Read, 76 W. Va. 557, 85 S. E. 726; Kelly v. Kelly, 118 Va. 376, 87 S. E. 567. 232 Shipman, Eq. PI., 470. 233 Dunston v. Higgins, 138 N. Y. 70, 33 N. E. 729, 20 L. R. A. 668, and note, 34 Am. St. Rep. 431; Mc- Mullen V. Ritchie, 41 Fed. 502, 8 L. R. A. 268, and note; Thompson v. Thompson, 91 Ala. 591, 8 So. 419, 11 L. R. A. 443; Teel v. Yost, 128 N. Y. 387, 13 L. R. A. 796, 28 N. E 353; Crumliah v. Central Imp. Co., 38 W. Va. 390, 23 L. R. A. 120, 18 S. E. 456, 45 Am. St. Rep. 872; Wells-Stone Mercantile Co. v. Truax, 44 W. Va. 531, 29 S. E. 1006. See additional Virginia and West Virginia cases cited in note 231, suvra. 523 Pleas in Bab §400 §400. Of pleas of matter of record continued — Of fomer decree. A final decree '^* of the same or some other court of equity, having jurisdiction,^^^ may be pleaded in bar to a new bill filed for the same cause of action and for the same object,^'^ and 23* 1 Daniell, Ch. Pr. (4th Am. Ed.), 660: Story, Eq. PI. (9th Ed.), § 790; Burner v. Hevener, 34 W. Va. 774, 12 S. E. 861, 26 Am. St. Rep. 948; Gallagher v. City of Mounda- ville, 34 W. Va. 730, 12 S. E. 859, 26 Am. St. Rep. 942; Yates v. Wil- son, 86 Va. 625, 10 S. E. 976; Flu- harty v. Mills, 49 W. Va. 446, 38 S. E. 521; State v. Irwin, 51 W. Va. 192, 41 S. E. 124; Staley v. Big Sandy, etc., R. Co., 63 W. Va. 119, 59 S. E. 946; Roller v. Murray, 71 W. Va. 161, 76 S. E. 172, Ann. Cas. 1914B, 1130; Hobson's Admr. v. Hobson's Admr., 105 Va. 394, 53 S. E. 964. 235 xhe court must have jurisdic- tion of the subject matter. Other- wise, the decree is void and can have no effect. Laing v. Price, 75 W. Va. 192, 83 S. E. 497; Davis Col- liery Co. V. Westfall, 78 W. Va. 735, 90 S. E. 328; Linkous v. Stevens, 116 Va. 898, 83 S. E. 417; Bren- ham V. Smith, 120 Va. 30, 90 S. E. 657. Likewise, the court must have jurisdiction of the parties. Long & Devers v. Willis, 50 W. Va. 341, 40 S. E. 340; i)ent v. Pickens, 59 W. Va. 274, 53 S. E. 154; Linkous V. Stevens, supra; Brenham v. Smith, supra. But declarations of a court as to its jurisdiction can not be impeached by extrinsic evi- dence. Hence, recitals in a, decree to the effect that process has been served, in the absence of anything in the record to the contrary, is con- clusive. Plant V. Humphries, 66 W. Va. 88, 66 S. E. 94, 26 L. R. A. (N.S.) 558; Central District, etc., Co. V. Parkersburg, etc., Co., 76 W. Va. 120, 85 S. E. 65; Lemley v. Wetzel Coal & 0. Co., 82 W. Va. 153, 95 S. E. 646. Recital that par- ties have appeared, thereby waiving service of process, of course would have the same effect. However, where there are numerous defend- ants, some served with process and some proceeded against as nonresi- dents by order of publication, a gen- eral recital of appearance by the de- fendants will be taken as referring only to those served with process. White V. White, 66 W. Va. 79, 66 S. E. 2, 24 L. R. A. (N.S.) 1279, 135 Am. St. Rep. 1013. 230 State V. McEldowney, 54 W. Va. 695, 47 S. E. 650. But the gen- eral rule has qualifications. See ante, § 398, note 226, and cases cited. As a general rule, a, decree is conclusive not only of all mat- ters actually litigated, but likewise of all matters that could have been litigated, in the suit in which the decree was entered, whether by way of recovery or as matter of defense. St. Lawrence Co. v. Holt & Mathews, 51 W. Va. 352, 372, 41 S. E. 351, and cases cited ; Chapman v. Par- sons, 66 W Va. 307, Cd S. E. 461. 24 L. R. A. (N.S.) lOl."), 135 Am, St. Rep. 1033; Marshall v. McDer" mitt, 79 W. Va. 245, 90 S. E. 830; Miller v. Smith, 109 Va. 651, 64 S. §400 Equity Procedure 524 between substantially the same parties "' or their privies."^ Thus, a decree construing a will is conclusive upon one claim- ing under an heir who was a party to the suit in which the will was construed, ^^^ if the matter put in issue upon which the con- struction was determined in the former suit is the same in the second suit ; otherwise, not.^"- It is not material how the decree in the former suit was rendered, whether on a demurrer, upon a full hearing of the cause, or by default; provided the decree is based upon the merits of the controversy raised by the plead- ing.^*^ An order or decree dismissing a former suit may be pleaded in bar to a new bill for the same matter, if the merits E. 956; Alderson v. Horse Creek Coal Land Co., 81 W. Va. 411, 94 S. E. 716. The general rule is sub- ject to qualifications. Central Bank- ing, etc., Co. V. U. S. Fidelity, etc., Co., 73 W. Va. 197, 206, 80 S. E. 121; Hudson v. Iguano Land & Min- ing Co., 71 W. Va. 402, 76 S. E. 797 ; Pomeroy Nat. Bank v. Hunting- ton Xat. Bank, 72 W. Va. 534, 79 S. E. 662. 237 Siiipman, Eq. PI., 470; 1 Dan- iell, Ch. Pr., 659 et seq.; Fluharty V. Mills, 49 W. Va. 446, 38 S. E. 521; Donnelly v. Wilcox, 113 N. C. 408, 18 S. E.' 339; Hudson v. Yost, 88 Va. 347, 13 S. E. 436; Kinports V. Rawson, 36 W. Va. 237, 15 S. E. 66; McClure v. Mauperture, 20 W. Va. 633, 2 S. E. 761; State v. Irwin, 51 W. Va. 192, 41 S. E. 124; Grass V. MeMullen, 103 S. E. 51 (W. Va. 1920). On the conclusiveness of a former decree, constituting it res judicata, see the following cases : Gibson v. Green, 89 Va. 524, 16 S. E. 661, 37 Am. St. Rep. 888 ; Gardner v. Strat- ton, 89 Va. 900, 17 S. E. 553: Kent V. Kent, 82 Va. 205; McCoy v. Mc- Coy, 29 W. Va. 794, 2 S. 'E. 809; Corprew v. Corprew, 84 Va. 599, 5 S. E 798; Crim v. England, 46 W. 'Va. 480, 33 S. E. 310, 76 Am. St. Rep. 826; Lehman v Hinton, 44 W. Va. 1, 29 S, E. 984; Pickens v. Love, 44 W. Va. 725, 29 S. E. 1018; King V. Burdett, 44 W. Va. 561, 29 S. E. 1010; Tartar v. Wilson, 95 Va. 19, 27 S. E. 818; Brown v. Squires, 42 W. Va. 367, 26 S. E. 177. See later additional cases cited in the foot-notes and in Enc. Dig. Va. & W. Va. Rep., and sup- plements under title "Former Adju- dication." See post, § 402. -38 See same citations. 239 Weeks v. McPhail, 128 N. C. 130, 38 S. E. 472; S. C. 129, N. C. 73, 39 S. E. 732; Hawthorne v. Beekwith, 89 Va. 786, 17 S. E. 241; Stoff V. McGinn, 178 111. 46, 52 N. E. 1048. Even parties by represen- tation may be estopped. Hawthorne V. Beekwith, supra. siowitliers v. Sims, 80 Va. 651; Dillard v. Dillard, 97 Va. 434, 34 S. E. 60. 2*1 Washington, 0. & W. R. R. Co. V. Cazenove, 83 Va. 744, 3 S. E. 433; Findlay v. Trigg, 83 Va. 543, 3 S. E. 142; Stuart v. Heiskell, 86 Va. 191, 9 S. E. 984. But the decree must have been based on the pleadings. Dent v. Pickens, 50 W. Va. 382, 40 S. E. 572; State v. McEldowney, 54 W. Va. 695, 47 S. E. 650. Aiid t!ie 525 Pleas in Bae §400 have been heard and the dismissal is not without prejudice.^^^ And it is held that the general dismissal of a bill in equity, without any reservation to the plaintiff to sue thereafter, is con- clusive between the parties and their privies of all the issues made up in the cause, even though there was no jurisdiction in equity because of an adequate remedy at law.^*' But if a party who would be entitled to the benefit of a decree as res judicata to the prejudice of another afterwards make an admission of decree must have been based upon the merits of the controversy. Dis- missal on agreement may be a de- cree on the merits. Pethtel v. Mc- CuUough, 49 W. Va. 520, 39 S. E. 199. But the agreement must settle the controversy. Goff v. Goff, 78 W. Va. 423, 89 S. E. 9. A nonsuit does not constitute a decree on the mer- its. Brovra v. Becl•. Hewitt, Kerche- val & Co., supra, and Townes v. Birchett, 12 Leigh (Va.) 173. "The failure to dispute an ac- count rendered, after the lapse of a reasonable time, amounts to an admission of its correctness. Un- controverted proof of such an ad- mission is sufficient basis for re- covery on the account without re- sorting to the original entries or other proof." Fayette Liquor Co. V. .Jones, 75 W, Va, 119, 83 S. E. 726. But "failure to object within a reasonable time to an account rendered amounts only to a rebut- table admission, not to an estoppel." Laraway v. Croft Lumber Co., 75 VV. Va. 510, 84 S. F.. 333. 2-' 1 Beach, Mod. Eq. Pr., § 313. -'^Shipman, Eq, PI., 474; 1 Beach, Mod. Eq. Pr., 313. "sShipman, Eq. PI,, 473; Story, Eq. PI.. §793; Schwarz v Wendell, Har. (Mieh.t 395. "* See same citations. §407 Equity Procedure 534 § 406. Pleas in bar created by matters in pais further consid- ered — A settled account. It is laid down by high authority that a settled account is a stated account which has been paid.^'^ But in practice there is no very material difference between these two classes of ac- counts. Either is pleadable in bar of a bill filed for an account- ing ; and when it is shown that an account of the matter charged in the bill has been stated or settled, the account will not be opened, unless the bill be so amended as to surcharge and falsify the stated or settled account by pointing out or indicating spe- cifically any items of error, mistake or omission existing in such accounts. ^'^ § 407. Pleas in bar created by matters in pais further consid- ered — An award. To a bill filed to set aside an award "^ and open the account or disturb the matter submitted to arbitration, the award may not only be pleaded as a good defense to the merits of the cause, but also to the .discovery, if anj', sought by the bill.^'^ If the bill allege fraud, corruption, mistake or any other proper ground for impeaching the award, such allegations must be denied by the plea, and by the answer in support of it.^'' Although an award is pleadable in bar to a bill, an agreement or covenant to refer matters in dispute to arbitration can not 275 Story, Eq. PI. (Oth Ed.), order of account, sliould confine §798; Shipman, Eq. PI., 473; Mc- himself to a statement of ttiose er- Graw V. Trader's Nat. Bank, 64 W. rors, the sum of wliicli is tlie proper Va. 500, (j.3 S. E. SflS. measure of relief." Sliugart v. =70 McNeel v. Baker, 6 W. Va. Thompson, supra. See Chapman v. 153: RuiTner v. Hewitt, 7 W. Va. Liverjiool Salt Co., 57 W. Va. 305, 585; Freeland v. Cocke, 3 Munf. 50 S E. flOI ; Hoover-Dimcling (Va.) 352: Shugart \. Thompson, Lumber Co. v. Neill, 77 W. Va. 470, 10 Leigh (Va.) 434; Weed v. Smull, 87 S. E. 855. 7 Paige Ch. (X. Y.) 573, 4 L. Ed. =77 For the causes for which an 280, note. award may be set aside, xndc Hogg, "On a hill impeaching a settled Eq. Princp., §§ 32, 33. account, the title of the complainant =7S story, Eq. PI. (flth Ed.), to relief depe'-ds on his success in S 803 : 31iipman, Eq. PI.. 474; 1 showing errors against him in the Daniell, Ch. Pr. (4th Am. Ed.)i settlement, and when the court di- 070. rects an account to be taken, the ^79 See same citations, commissioner, in executing the 535 Pleas in Bar § 408 be pleaded in bar to a bill brought in consequence of such matters.^'" § 408. Pleas in bar created by matters in pais further consid- ered — That the defendant is a purchaser for valuable consideration. The doctrine of bona fide purchase is of equitable origin and applies to both real and personal property.^'! In respect to real estate, bona fide purchasers are now generally protected by the recording acts.^*^ Under the principle of equity of a io7ia fide purchase, a vendee is protected from the demand of his vendor's creditors.^*' A bona fide purchaser may pass good title to a vendee, although such vendee has notice of equities against the, original vendor.^*'' A defendant claiming the protection of a court of equity should aver in his plea the want of notice fully, positively and precisely, even though notice is not distinctly charged in the bill, and should deny all knowledge of the facts charged and from which notice may be inferred. ^*^ And if he rely upon want of notice in another, from whom he has pur- chased, this fact must be averred. ^^' The plea also should aver -sofdfrn. purchaser with notice will be pro- 281 ] Beach, Mod. Eq. Jur., § 3S2. tected. Bowman v. Holland, 116 For the classification of the sub- Va. 805, 8.3 S. E. 393, ject of bona fide .purchase and the 285 Woodruff v. Cook, 2 Edw. Ch. treatment of the subject, vide 1 (N. Y.) 259, 6 L. Ed. 393, and Beach, Eq. ,Tur,, §§382, 393; 1 note ; Galatian v. Erwin, Hopk. Ch. Story. Eq. Jur.. §§108, 165, 38h (N. Y.) 48, 2 L. Ed. 338; Lowry v. 409-411, 416, 434. 436, 630, 631. Tew, 3 Barb. Ch. (N. Y.) 407, 5 282 1 Beach, Mod. Eq. .Jur., §382; L. Ed. 952; Murray v. Ballou, 1 Hogg, Eq. Princp., §§ 3.56-.366. Johns. Ch. (N. Y.) 506, 1 L. Ed. 2S3Eppes V, Randolph, 2 Call 247, and note; Manhattan Co, y, /i7 ^ lU is-i Evertson, 6 Paige Ch. (N. Y.) 457, (Va.) i^i>. isrf, 3 L Ed, 1080; Tompkins v. 284Lacy V. Wilson, 4 Munf. (Va. I Mitchell, 2 Rand. (Va.) 428; 313: Spengler v. Snapp, 5 Leigh Downman v. Rust, 6 Rand. (Va.) (A'-a.) 478; Curtis v Lunn, 6 i^l^,,^"'•"• i™" ^°-,7V^'.°"*' cl^ ,r 1 ,ir . AC, -o ^ 1 Va. 397, 2 S. E. 713, 5 Am. St. Munf. (Va.) 42. But a purchaser ^^^ gSS, and cases cited. The de- witfi notice can not sell to a pur- fense may be made by answer as chaser without notice and, by reac- well as by plea. Donnell v. King's quiring the prnoertv, get any better Heirs 7 Leigh (Va.) 393; Rorer 7.,, ,, , . J ". .. i i. . Iron Co. V. Trout, supra. But it is title than he had in the first in- ^^^^^^^^^ ^^ pi^^d f,,,, defense in stance. Yost v. Critcher, 112 Va. gome manner. Simmons v. Sim- 870, 72 S. E. 594. However, it fol- mons, 85 W. Va. 25, 100 S. E. 743, lows from the general rule that a ^^^^^ g^'^^f n v Erwin, 1 Hopk. .,, .... Ch. N. Y.) 48, 2 L. Ed. 338. purchaser without notice from a §408 Equity Procedure 536 a cousideratioD, to whom the consideration was paid, its actual payment before notice received of the plaintiff's equities,'" and the amount paid,'*' as well as a conveyance of the property to the defendant.'*" An averment of a consideration secured to be paid is not sufficient."" -•87 1 Beacli, Mod. Kq. l>r., §314; 1 Dan., Cli. Pr. (4tli Am. Ed.), 677; Barrett v. Me.Mlistor, .'J.^ W. Va., at p. 115, 12 S. K. 1100. :i88 wiiile it ia advisable to aver the amount paid as the considera- tion, still it ia aaid by Mr. Barton not to be necessary. 1 Bart., Ch. Pr. (2d Ed.), 39S. "The particular consideration must, it would seem, be stated, al- thoufrh this point has been decided otherwise. There can, however, be no objection to state the considera- tion; as, if it be valuable, the plea will not be invalidated by mere in- adequacy. The question is, not whether the consideration is ade- quate, but whether it is valuable; for if it be such a consideration as will not be deemed fraudulent with- in the statute, 27th Elizabeth, or ia not merely nominal, or the pur- chase is such a one as would hinder a puisne purchaser from overturn- ing it, it ought not to be impeached in equity." 1 Dan., Ch. Pr. (4th Am. Ed.), 677. -89 Doswell V. Buchanan, 3 Leigh (Va.) ,36.5. Tn commenting on the principles stated in the text. Mr. Barton in his Chancery Prac. i2d Ed.), vol. 1, pp. 3(16, 307, says: "If, therefore, either his i)urchase money remains unpaid, or he has not completed his title by obtaining a conveyance be- fore he lias re''"ived notice, the no- tice will affect him; for if he re- ceived that notice before both of those acta are perfected, he ought to stop until the equity is inquired into, or he will be bound by it. Thus, although he has paid every cent of his purchase money, and the hopeless insolvency of his vendor would prevent his ever recovering it back, yet if he has not completed his title by getting a conveyance before his notice of the prior equity, he must stop, and will not be per- mitted to go on and secure himself by obtaining the legal title from the common vendor." "In a suit to cancel a lease on the ground of fraud, a defendant can not take advantage of the de- fense that he is, or claims through, a purchaser for value without no- tice, unless such defense is set out in his plea or answer, including the statement that his vendor was in possession of the premises at the time of transfer." Korer Iron Co. v. Trout. 83 Va. 307, 2 S. E. 713, .T Am. St. Rep 28.5. In the latter case, the essentials of the plea or answer are stated as follows: "(1) tliat they are pur- chasers for valuable consideration actually paid; (2 1 that they have received, or are best entitled to re- ceive, conveyance; (3) that their grantor was in posaession of the property at the time: and (4) that these facts happened before no- tice of the adverse claim. But this defense can not be made unless it is set up by answer or plea." Also see, Bo>.lby ». DeWitt, 47 W. Va. 323, 34 S. E. 919. =9"1 Bart., Ch. Pr, (2d Ed.), 396. 537 Pleas in Bar § 409 "The plea must state the deed of purchase, setting forth the dates, parties and contents briefly, and the time of their execu- tion. It must aver that the defendant was seized, or pretended to be seized, at the time he executed the conveyance. If the conveyance pleaded be of an estate in possession, the plea must aver that the vendor was in possession at the time of the execu- tion of the conveyance ; and if it be of a particular estate, and not in possession, it must set out how the vendor became en- titled to the reversion. ' ' ^'^ § 409. Pleas in bar created by matter, in pais further consid- ered — Title in the defendant. It is apparent from the requisites of a plea by a purchaser for valuable consideration without notice, that one who is a mere volunteer can not rely upon such a plea as a defense to a bill in equity. It is otherwise, however, of a plea of title para- mount to that of the plaintiff, as the defendant's title to be made a bar to an adverse suit in equity need not be supported by a valuable or other consideration. ^^^ A plea of this char- acter is generally founded (1) on a will, or (2) on a convey- ance, or (3) on a long, peaceable and adverse possession. ^^' Thus, where suit is brought against a devisee by an heir at law to turn the devisee out of possession, ^^* or by a widow for the assignment of dower where the will has provided for her by way of gift or devise in lieu of dower which she has ac- ■cepted,^'^ the will may be pleaded in bar of the suit. In like manner, upon a bill filed by an heir against the person claiming under a conveyance from an ancestor, the defendant may plead the conveyance in bar of the suit. So, where a bill was filed by persons claiming under a will, to set aside a conveyance made 2911 Bart., Ch. Pr. (2d Ed.), 292 Shipman, Eq. PI., 476; Story, .398. Eq. PI. (9th Ed.), §811. As to who is a purchaser for val- ^sajrfem.; 1 Daniell, Ch. Pr. (4th uable consideration without notice, Am. Ed.), 672. vide Hogg, Eq. Prin., § 357, and 29* Idem. authorities there cited. =9= Ambler v. Norton, 4 Hen. & Munf. (Va.) 23. § 4] Equity Proceduke 538 by the testator on the ground of fraud, and the defendant pleaded a conveyance by the testator, before the date of his will, of the estate which the plaintiffs claimed, the plea was al- lowed.^'* In pleading a will, it is not necessary to set forth the whole of it, but only the substance of so much of it as relates to the point in question.^'' Lapse of time, or laches, in the ab- sence of any statute of limitations, is a peculiar defense in a court of equity.^'* "In all pleas of title, whether derived under a will or a deed, if the defendant is not the person taking directly under the will or deed, but derives his title through others, the title of the defendant must be deduced from the person immediately taking by proper averments in the plea. And in all cases it is necessary, whether the title be derived from adverse possession, or from a will or conveyance, to show that it had a commence- ment anterior to that of the plaintiff's title, as shown by the bill; a title posterior to that of the plaintiff will not avail as a plea, unless it be some way connected with the plaintiff's title. ""9 § 410. Pleas in bar created by matter in pais further consid- ered — Release of surety. Another important bar created by matter in pais is any act done by a creditor to the prejudice of a surety which operates a discharge of the surety.'"" In such ease the facts which oper- ate to release the surety may be pleaded in bar of a suit brought by the creditor ; and, if the obligation of the surety be under seal, such defense is available only in a court of equity.'"^ =90 1 Daniell, Ch. Pr. (4th Am. 467; Poling v. Maddox, 41 W. Va. Ed.), 673. 779, 24 S. E. 999. 297 Ambler v. Norton, 4 Hen. & soi Mem; Parsons >•. Harrold, 46 Munf. (Va.) 23. W. Va. 122, 32 S. E. 1002; Hogg, -9s Story, Eq. PI., §813. Ante, Eq. Prinep., §§393-395; also, 1 §§386, 388, where this doctrine is Bart., Ch. Pr. (2d Ed.), 487-490, considered and authorities cited. and notes, as to wliat acts will or -'09 1 Daniell, Ch. Pr. (4th Am. will not release a surety. The de- Ed.), 673, 674. fetise nuist be made by plea or an- 3»o Glenn v. Morgan, 23 W. Va. swer. It can not be made by a merti 339 Pleas in Bae §411 § 411. Essential requisites of a plea in bar. The rule applicable to pleas in equity is that the same strict- ness and exactness is required in them that is required in pleas at law, if not in matters of form, at least in matters of sub- stance.'"^ The plea must, by proper averment, meet the case made by the bill ; '"' and if it does not go to the whole bill, it must specifically designate the part to which it does apply, and must present a complete defense to that part of it.'"* Accord- ingly, a plea which alleges the joint ownership of plaintiff with another in the subject matter of the suit, which is entirely pe- cuniary, is not a good plea in bar of a bill in chancery,'"^ inas- much as a joint interest in a mere chose in action is separable in equity, and the joint owner of any such interest can be made exception to a commissioner's re- port. Turner v. Stewart, 51 W. Va. 493, 41 S. E. 924. 302 Ciieney v. Patton, 154 111. 422, 25 N. E. 792; Story, Eq. PI. (9th Ed.), 658. 303 Barrett v. McAllister, 35 W. Va. 103, 12 S. E. 1106; Briggs v. Enslow, 44 W. Va. 499, 29 S. E. 1008; Preston v. Aston, 85 Va. 104, 7 S. E. 344. 304Jarvis v. Palmer, 11 Paige Ch. (N. Y.) 650, 5 L. Ed. 267. In this case Chancellor Wal- worth says: "This plea, how- ever, is defective in point of form, because it does not state with sufficient certainty the part of the discovery sought by the bill which it was intended to cover. The same rule applies to pleas as to de- murrers in this respect: that where the plea or demurrer does not go to the whole bill, but only to a part of the discovery or relief sought, it must clearly and distinctly point out the particular parts of each which such plea or demurrer is de- sigsied to cover. That is, the part of the discovery and relief intended to be covered by the plea or demur- rer must be set out in the words of the bill, or by such a description that the court will not be obliged to look into the whole bill to find the part which is covered by the demurrer or plea. Johnson v. John- son, 2 Moll. 415; Chetwynd v. Lin- den, 2 Ves. 451; Welf. Eq. PI. 267, 298." See also, Davison v. Schermer- horn, 1 Barb. (N. Y.) 480; Piatt V. Oliver, 1 McLean (U. S.) 295; Bogardus v. Trinity Church, 4 Paige Ch. (N. Y.) 178, 3 L. Ed. 394. "But in the nature of things the cases are comparatively few where a plea can apply to a part and not- to the whole of a bill. Such a case arises when the claim of the plain- tiff is divisible in its nature, and one part of it is open to some special defense which does not apply to the rest." JJerwin, Eq. & Eq. P!., 562. so.T Briggs V. Enslow, 44 W. Va. 499, 29 S. E. 1008. [19] §411 Equity Procedure 540 either a party plaintiff or defendant.'"* It must, in most juris- dictions, direct the defense to a single point,"" though it may embrace a variety of circumstances all tending to establish one and the same fact.'"* But in West Virginia, by operation of statute,'"' the objection to duplicity in any pleading is no longer available.'^" So, under the West Virginia statute '^* permitting a defendant to ' ' plead as many several matters of law or fact as he shall think necessary," it is said that no objection is per- ceived to allowing several different defenses to be embodied in one plea with the same effect as if contained in separate pleas.'*^ In Virginia two defenses, it is said, can not be made in the same plea, though there may be as many separate and distinct pleas filed as there are defenses to the suit.'-^' "The averments of the plea must be positive, complete and distinct and not by 308 Idem. 307Shipman, Eq. PI., 416; 1 Bart., Ch. Pr. (2d Ed.), 382; 1 Beach, Mod. Eq. Pr., §293; Story, Eq. PI., §§653, 654; 1 Daniell, Ch. Pr. (4th Am. Ed.), 603; Puter- baugh, Ch. PI. and Pr. (3d Ed.), 141; Merwin, Eq. and Eq. PL, § 974 ; Teter v. Moore, 80 W. Va. 443, 447, 448, 93 S. E. 342. 308 Idem; Va. Fire & Marine Ins. Co. V. Saunders, 86 Va. 969, 11 S. E. 794. 309 VV. Va. Code, 1913, i;. 125, § 29. Substantially the same statute is in force in Virginia. Va. Code, 1904, § 3272. 310 Brannon, J., in the opinion of Poling V. Maddox, 41 W. Va. 779, 24 S. E. 999; Hunt v. DiBaeco, 69 W. Va. 449, 71 S. E. 584. The reason for the principle stated in the text is that duplicity in a pleading could be reached only by special demurrer, and inasmuch as such demurrers have been abol- ished by statute, this ground of ob- jection to a pleading has been re- moved. Coyle V. B. & 0. R. Co., 11 W. Va. 94; Sweeney v. Baker, 13 W. Va. 158; Cunningham v. Smith, 10 Gratt. (Va.) 255, 30 Am. Dec. 330; Grayson v. Buchanan, 88 Va. 251, 13 S. E. 457. The case of Cunningham v. Smith, supra, was evidently decided under the law as it existed prior to the revisal of 1850 of the laws of Virginia. See note to this case by the compilers of Hurst & Brown's Annotated Dig. of the Virginia Peps., vol. 2, pp. 802, 803. 311 W. Va. Code, 1913, e. 125, § 20. A like statute is in force in Vir- ginia. Va. Code, 1904, § 3264. 312 Opinion of Brannon, J., in Poling V. Maddox, 41 W. Va. 779, 24 S. E. 999. But still each defense must be a complete bar to the bill or to the particular part of the bill to which it applies. Teter v. Moore, 80 W. Va. 443, 93 S. E. 342. 313 1 Bart, Ch. Pr. (2d Ed.?.^ SSis. 541 Pleas in Bae §412 way of argument. ' ' '" The plea should rest upon matter dehors the bill ; '^' for, if the matter is apparent on the face of +,he bill, it is the proper subject of a demurrer, and not of a. plea,^^^ unless the plea be of a purely negative charaeter,'^^ when it puts in issue the very facts alleged in the bill.'^^ And a plea, "whether it be affirmative or negative, must be either an. allegation or a denial of some leading fact, or of matters, which, taken collectively, make out some general fact, which is a com- plete defense. ' ' '" § 412. Distinction between a plea and an answer. A plea is in the nature of a special answer, generally resting a defense to the bill upon some particular matter, as the statute of frauds, former adjudication, stated account and the like,^^* tut making no further answer to the bill, such as making a discovery of the matters as to which the bill prays a discov- ^j,y.^32i ^j^^g saving the embarrassment of a discovery and the labor and expense of taking the evidence at large in the cause.'^^ 314 Idem. 315 story, Eq. PI. (9th Ed.), §660: Shipman, Eq. PI., 411; 1 Beach, Mod. Eq. Pr., §§293, 319; 1 Daniell, Ch. Pr. (4th Am. Ed.), 604. 316 Story, Eq. PI. (9th Ed.), §660; Shipman, Kq. PI., 411. s-iT Ante, § 2S'5. SIS Story, Eq. PI. (9th Ed.), §660. "A defendant may present a good plea by averring the facts contained in the bill and along with them other and additional facts not con- tained in the bill, provided that the facts taken from the bill and tlie new facts together establish a, de- fense." 1 Beach, Mod. Eq. Pr., §319. 319 Story, Eq. PI. (9th Ed.), ? 652 ; Teter v. Moore, 80 W. Va. 443, 23 S. E. 342. 320 Heartt v. Corning, 3 Paige Ch. (N. y.) 5G6, 3 L. Ed. 276; Ship- man, Eq. PI., 409, 410; Story, Eq. PI. (9th Ed.), §§649-651; Donnell V. King's Heirs, 7 Leigh (Va.) 393, 398. 321 Shipman, Eq. PL, 410; Story, Eq. PI. (9th Ed.), §846. The fundamental original object of a plea was to avoid discovery and the expense of taking testimony to sup- port an answer. McDermitt v. Kewman, 64 W. Va. 195, 201, 61 S. E. 300. But modern methods of pleading, doing away with pro- lixity in the bill, and to a great extent abolishing the need of dis- covery by use of the decree pro con- fcsso, have left few cases where a plea is more useful than an answer. 1 Whitehouse, Eq. Prac, § 242. 322 Story, Eq. PI., §652; Milli- gan V. Milledge, 3 Cranch (U. S.) § 413 Equity Procedure 542 On the other hand, an answer not only makes a defense to the bill upon all grounds of legitimate defense, but makes discov- ery as called for in the bill.'^' Furthermore, an answer, when responsive to the bill, and positively denying its allegations, becomes evidence for the defendant,'^* to the extent hereinafter shown,^^^ while a plea does not.'^^ An examination of the decisions will disclose that wherever a party may make his de- fense by a plea to the bill, he can interpose the same defense in the Virginias, as well as in many other jurisdictions, by an § 41S. When an answer must accompany the plea. The following are the classes of cases in which an answer must accompany a plea, and each case depends on the frame of the bill : Whenever the bill is so framed as to call for a proper dis- covery, and such discovery is material to the plaintiff's case upon the trial of the plea, the plea must be supported by an 220, 2 L. Ed. 417; Farley v. Kitt- 863: Miller v. Mclntire, 6 Pet. (U. son, 120 U. S. 314, 7 S. Ct. 534, 30 S.) CI; Highstone v. Franks, 93 L. Ed. 684; McDermitt v. Xewman, Mich. 52, 52 N. W. 1015; Jourol- 64 W. Va. 105, 201, 61 S. E. 300. mon v. Massengill, 86 Tenn. 81, 5 323Sliipman, Eq. PL, 410; Story, S. W. 719; Dyer v. Lincoln, 11 Vt. Eq. PI., §§ 848 et scq.; 1 Daniell, 300; Mitchell v. Lenox, 2 Paige Ch. Ch. Pr. (4th Am. Ed.), 711-713-. (N. Y.) 280, 2 L. Ed. 907; Bullock 324Shipman, Eq. PI., 410; Story v. Boyd, 2 Edw. Ch. (N. Y.) 293, Eq. PI. (9th Ed.), §84na; 1 Dan- 6 L. Ed. 405: McCabe i. Cooney, 2 iell, Ch. Pr. (4th Am. Ed.), 843. Sandf, Ch. (N". Y.) 314, 318, 7 L. 325 Post, §463. Ed. fi08; Toledo Tie & Lumber Co. 326Heartt v. Corning, 3 Paige Ch. v. Thomas, 33 W. Va. 566, 11 S. E. (N. Y.) 566, 3 L. Ed. 276; Puter- 37; Matthews v. Roberts, 2 N. J. baugh, Ch. Pr. (3d Ed.), 161; Ger- Eq. (1 Green) 338; Brower v. non V. Boccaline, 2 Wash. C. C. Levan, 7 Pa. Dist. Eep. 702; Black (U. S.) 199. V. Miller, 173 111. 489, 50 N. E. 327 Donnell v. King, 7 Leigh 1009; Goodrich v. Pendleton, 4 (Va.) 393, 398; Barrett v. McAllis- Johns. Ch. (N. Y.) 549, 1 L. Ed. ter, 35 W. Va., at p. 116, 12 S. E. 932, 933; 1 Whitehouse, Eq. Prac, 1106; Kelley v. Lewis, 4 W. Va. §242. See cases cited in foot-notes 456; Smith v. Nicholas, 8 Leigh of preceding sections dealing with (Va.) 330; Cozine v. Graham, 2 specific pleas. Also, see. Bell v. Paige Ch. (N. Y.) 177, 2 iL. Ed. Bell, 84 W. Va. 307, 99 S. E. 450. 543 Pleas in Bar §41S answer. Thus, in the ease of a pure plea which relies upon a release, where the plaintiff, anticipating this defense to his bill, charges that the release was obtained by fraud, sets out the facts constituting such fraud, and asks for discovery as to such facts, the plea must deny the fraud, and be supported by an answer in which the defendant must make full discovery as to the facts alleged in the bill in support of the averment of fraud — not, it will be observed, in support of the plaintiff's original case, but of the alleged fraud in obtaining the re- lease.'^* In the more modern practice, though the bill ' does anticipate by apt charge the defense which is set up by plea, and alleges the facts in support of the charge, no answer is required in support of a plea denying such charges and facts, unless the bill plainly seeks a discovery in reference to them.'^° Hence a plea which contains a full defense to the bill need not be supported by an answer in any case, in the absence of inter- rogatories calling for a discovery.'*" 328Shipman, Eq. PI., 438; Mer- win, Eq. and Eq. PI., 561, §n75; 1 Bart., Ch. Pr. (2d Ed.), 383; 1 Beach, Mod. Eq. Pr., § 298. Were it otherwise, a defendant, by merely pleading a fraudulent re- lease, could shut out a plaintiff from all discovery of the facts showing the defendant's fraud in obtaining the release. The same is true of any other ground set up in the bill by way of defeating an an- ticipated defense. Merwin, Eq. and Eq. PL, 561. 329Shipman, Eq. PI., 438, 440; 1 Daniel], Ch. Pr. (4th Am. Ed.), 615. Mr. Daniell thus summarizes the principles and rules stated in the text: "Under the present prac- tice, if no interrogatories are filed, the defendant need only aver the facts necessary to render the plea a complete equitable bar to the case made by the bill, and need not put in any answer in support of the plea. If interrogatories are filed, the principles of the old cases, with respect to an answer supporting the plea, still remain in force. "Tlie cases in which it is neces- sary that a plea should be supported by an answer, may be very conven- iently divided into: (1) those where tlie plaintiff admits the existence of a legal bar, and alleges some equi- tahle circumstances to avoid its effect, and interrogates as to these circum.stances; and (2) those whore the plaintiff does not admit the ex- istence of any legal bar, but states some circumstances which may be true, and to which there may be a valid ground of plea, together with other circumstances which are in- consistent with the substantial va- lidity of a plea, and interrogates as to such circumstances." 1 Dan., Ch. Pr. (4th Am. Ed.), pp. 615, 616. 330 Idem; Cowart v. Perrine, 18 N. J. Eq. 458; Hilton v. Guyott, 42 Fed. 240. § 414 Equity Procedure 544 Wherever an answer under oath is waived by the plaintiff, no answer is required in support of the plea which meets the entire case made by the bill.''^ § 414. The frame of a plea. After giving the title of the cause,''^ it is usual to introduce the plea with a protestation, '^^ but this is no longer neces- sary.^^^ In the Virginias, it is expressly provided by stat- ute ^^^ that no party shall be prejudiced by the omission of a protestation ; and it is further expressly so provided in these jurisdictions '^^ that no formal defense shall be required in a plea — that it may commence as follows: "The defendant says that" Then follows the matter of defense to be relied on in the plea.^^' If the plea be accompanied by an answer in sup- port of it, that purpose is stated in the answer, and it is further seated that the plea is not waived. ''■'' If the plea goes only to a part of the bill, and an answer is filed to the rest, it is stated to be an answer to so much of the bill as has not been pleaded to, and disclaims any waiver of the plea.'^^ 331 Tompkins v. Anthon, 4 Sandf. to enable tlie party to dispute the Ch. (N. Y.) 97, 7 L. Ed. 1039; Fish fact not traversed in another action V. Miller, 5 Paige Ch. (N. Y. ) 26, or proceeding. Stephen on Plead- 3 L. Ed. 612. ing, pp. 235-237. Of so little real 333 1 Beach, Mod. Eq. Pr., § 316. substance is it now regarded, that 333 1 Bart., Ch. Pr. (2d Ed.), 3S3. it has been dispensed with by § 25, sMidem. of c. 171, Code of 1860." Philips 335 W. Va. Code, 1913, c. 12.-), v. Tlie Commonwealth, 19 Gratt. §23; Va. Code, 1904, §3266. (Va.) 510. "The matters of the plea con- 330 W. Va. Code, 1913, c. 125, tained under the protestation can §26; Va. Code, 1904, §3269. not be considered as averments un- 337 Woodell v. W. Va. Imp. Co., der any just principles of pleading. 38 W. Va. 23, 17 S. E. 3S6. The protestation in no manner adds 338 i Bart., Ch. Pr. (2d Ed.), 383. to a plea; it merely excludes the An answer not so restricted may conclusion of tlie admission of a overrule the plea. McDermitt v. fact from the failure to deny it. Newman, 64 W. Va. 195, 61 S. E. It is a declaration purely collateral 300. to the main pleading, and intended 338 ggg same citations. 545 Pleas in Bab §416 It is not necessary to state in a second or other plea that it is pleaded by leave of the court, or according to the form of the statute.'" "If the plea is intended as a bar to only part of the bill its conclusion should not be more extensive than the subject matter to which it relates. It should not conclude to all the relief prayed for, when the matter pleaded can only bar a part of that relief ; but in such cases it will be ordered to stand for so much of the bill as it properly covers, and the defendant may be re- quired to answer to the residue."'*^ Pleas should be signed by counsel, but need not be sworn to unless a statute so provides, as in the case of pleas in abate- ment ^*- or pleas of non est factum^*" § 415. When a plea in bar may be filed. A plea in bar may be filed at rules, if the case has not been set for hearing,'^* or in term, as a general rule, at any time before final decree.^" No formal order filing a pleading is required, if it appears from the record that it was treated as filed. '*^ But delay in filing a pleading ought not to operate so as to delay the submission of the cause. ^*' § 416. How the suiSciency of a plea in bar or in abatement may be determined. If the plea be sufficient in form and substance, the plaintiff should reply to it ; but if not, he should set it down for argu- 340 W. Va. Code, 1013, c. 125, decree, pnst, § 44."), tliere ia no valid §27; Va. Code, 1904, §3270. reason wliy a plea may not be so 341 1 Bart., Ch. Pr. (2d Ed.), 3S3. filed. See 1 Dan., Cli. Pr. (4th 3i2ldem, 3S4; 4 Minor, Inst., Am. Ed.), 690. But a plea of the Part 2, p. 1172; ^^'. Va. Code, 1013, statute of limitations, offered after c. 125, § 39. the evidence is closed, without any 343 W. Va. Code, 1013, e. 12.5, excuse for the delay in filing it, §39; Va. Code, 1004, §3278. Also will be rejected as coming too late, see, W. Va. Code, 1013, c. 12.5, llerrell v. Board of Supervisors of §§40, 41; Va. Code, 1904, §§3270, Prince Williams Co., 113 Va. 594, 32S0. 75 S. E. 87. 3«1 Bart., Ch. Pr. (2d Ed.), 385, -'nc Smith v. Profitt, 82 Va. 832, 386. 855, 1 S. E. 67. s*'' Inasmuch as an answer may 34r Jjowles v. Woodson, 6 Gratt. be filed at any time before final (Va. ) 78. §417 Equity Procedure 546 ment.'^* This is the way in which its sufficiency is properly tested,'*' though its sufficiency may be considered and deter- mined upon objections made to its being filed.'^" Though the statute in the Virginias ^^'^ provides that a plaintiff in equity may have any plea set down to be argued, saying nothing as to the defendant, thisi right extends to the defendant also.'^^ It may be set for argument either by motion or by petition. ^^^ If the plea be overruled, no other plea can be received in the cause ;'^* but the same defense may be insisted on by way of answer.'^^ § 417. How the issue is formed on a plea in equity, and the scope of the issue. If the plaintiff desires to take issue on a plea in equity, he must do so by general replication,'^^ as a special replication is not permissible in equity."*' Upon a replication to a plea, noth- ■'•JSW. Va. Code, 1913, ^. 125, § 30; Va. Code, 1904, § 3273; Mont- gomery V. Olwell, 1 Tenn. Ch. 184; Rhode Island v. Maasacliusetts, 14 Pet. (U. S.) 257, 10 L. Ed. 423; Farley v. Kittson, 120 U. S. 314, 7 S. Ct. 534, 30 !L. Ed. 684. 349 Farley v. Kittson, 120 U. S. 314, 7 S. Ct. 534, 30 L. Ed. 684; Plughes V. Blake, 6 Wheat. (U. S.) 4.)3, o L. Ed. 303; Peay v. Duncan, 20 Ark. 85; Dixon v. Dixon, 61 111. 324; Rouskulp v. Kershner, 49 Md. 521. 350 w. Va. Code, 1913, c. 125, §56; Preston v. Aahton, 85 Va. 104, 7 S. E. 344; State v. Purcell, 31 W. Va. 44, 5 S. E. 301. 351 W. Va. Code, 1913, c. 125, § 30; Va. Code, 1904, § 3273. 352 Flagg V. Bonnel, 10 N. J. Eq. 82; 1 Daniell, Ch. Pr. (4th Am. Ed.), 692, note U; Story, Eq. PI. (9th Ed.), §697, citing Mitf., Eq. PI., by Jeremy 301, and Cooper, Eq. PI., 231, 232. 353 1 Daniell, Ch. PI. and Pr. (6tli Am. Ed.), 690-692. 354 w. Va. Code, 1913, c. 125, §30; Va. Code, 1004. §3273. 355 Goodrich v. Pendleton, 4 Johns. Ch. (N, Y.) 551, 1 L. Ed. 933. "The rejection of the plea will not deprive the defendant of any benefits to which she may be en- titled by that adjudication. She may avail herself thereof by an- swer. 1 Hogg, Eq. Pr., 463, § 392 ; idem, 460, § 388, and cases cited." Bell V. Bell, 84 W. Va. 307, 99 S. E. 450. 355 Post, § 475. 337 Dows V. McMichael, 6 Paige Ch. (X. Y.) 145, 3 L. Ed. 933; Barrett v. McAllister, 35 W. Va. 103, 115, 12 S. E. 1106; McClane V. Shepherd, 21 N. J. Ea. (6 C. E. Gr.) 76. 547 Pleas in Bar §418 ing is in issue except what is distinctly averred in the plea;'^' and if the truth of the plea is established at the hearing, the plea is an absolute bar, not merely to that part of the claim to which it is strictly pi^rtinent, but to so much of the bill as it professes to cover.'^^ And if the truth of the plea be made out, the bill must be dismissed, although the matters pleaded con- tain, in fact, no valid defense to the suit.'^" § 418. Burden of proof on the issue joined on a plea in equity. Wher.e a pure plea is relied on, founded always, of course, upon matters dehors the bill, the burden is always upon the defendant. ^^^ Hence, if a defendant fail to prove the truth of the facts pleaded, the plea will be overruled as false, and the complainant will be entitled to a decree according to his case as sitated in the bill, if there be no other defense to the suit than 358 Tompkins v. Anthon, 4 Sandf . Ch. (N. Y.) 120, 7 L. Ed. 1047; Fish V. Miller, 5 Paige Ch. (N. Y.) 26, 3 L. Ed. 612. 359 Tompkins v. Anthon, 4 Sandf. Ch. (N. Y.) 120, 7 L. Ed. 1047; Fish V. Miller, .5 Paige Ch. (N. Y.) 26, 3 L. Ed. 612. 360 Tompkins v. Anthon, 4 Sandf. Ch. (N. Y.) 120, 7 L. Ed. 1047. But such is not the modern rule in all jurisdictions. 1 Whitehouse, Eq. Prac, S 257. When a plaintiff has taken issue upon a plea he can not be heard to say that it constitutes no defense to the bill. Bean v. Clark, 30 Fed. 225. See Story, Eq. PI., 697; Rhode Island v. Massachusetts, 14 Pet. (U. S.) 210, 10 L. Ed. 423; Myers v. Dorr, 13 Blatchf. (U. S.) 22; Birdseye v. Heilner, 26 Fed. 147, 136 U." S. 630, 10 S. Ct. 1065, 34 L. Ed. 554. 301 Bogardus v. Trinity Church, 4 Paige Ch. (N. Y.) 178, 3 IL. Ed. 394; Tompkins v. Anthon, 4 Sandf. Ch. (N. Y.) 120, 7 L. Ed. 1047; Swayze v. Swayze, 37 N. J. Eq. 186. See Stout v. Seabrook, 30 N. J. Eq. 187; McEwen v. Broadhead, 11 N. J. Eq. 120; Dows v. Mc- Michael, 6 Paige (N. Y.) 139; Fish V. Miller, 5 Paige (N. Y.) 26; Rhode Island v. Massachusetts, 14 Pet. (U. S.) 210, 10 L. Ed. 423; Danels v. Taggart, 1 Gill & J. (Md.) 311; Hughes v. Blake, 6 Wheat (U. S.) 453, 5 L. Ed. 303; Suydam v. Johnson, 16 N. J. Eq. 112; McClane v. Shepherd, 21 N. J. Eq. 76. If to a bill brought to foreclose a mortgage the defendant pleads usury, and the bill itself on its face, and the documents filed with it, present a ease of usury, such as is pleaded, it is not necessary for the defendant to take deposition to sup- port his plea. His adversary's bill supports his plea. Lane v. Ellzey, 6 Rand. (Va.) 661. §419 Equity Procedure 548 that set forth in the plea.'*^ It is otherwise as to pleas known as negative pleas, which are founded upon allegations made in the bill.'^s § 419. How the issue joined upon a plea is tried. It is provided hy statute in the Virginias^^* that a plaintiff in equity may take issue upon a plea, and either party may have such issue tried by a jury.'^^ It was decided in Pryor v. Adams '^^ that a plea to the jurisdiction ought not to be tried by a jury, but only according to the usual course of chancery causes. Whether this rule has been changed by the statutes above mentioned, providing in general terms for the trial of issues upon pleas before a jury, does not seem to have been decided. When a plea which meets and satisfies all the claims of the bill is put in issue, and the facts are found as therein stated, the bill must be dismissed. ^^' 312 Hunt V. West Jersey Traction sis 1 Call (Va.) 382, 1 Am. Dec. Co., 02 N. J. Eq. 225, 49 Atl. 434. 533. 3C3 Idem. See ante, § 285, as to so- Horn v. Detroit Dry Dock Co., the character of such pleas. 150 U. S. 610, 14 S. Ct. 214, 37 304 W. Va. Code, 1!)13, c. 125, L. Ed. 1199; Kennedy v. Creswell, § 31; Va. Code, 1904, § 3274. 101 U. S. 641, 25 L. Ed. 1075; Hunt 3ca Idem. As to when a jury trial v. West Jersey Traction Co., 62 N. may be liad in other cases in equity, J. Eq. 225, 49 Atl. 434; Miller v. vide post, §§686-688. United States Casualty Co., 61 N. J. Eq. 110, 47 Atl. 509. CHAPTER XX THE ANSWER I 420. Definition and purpose of an answer. § 421. The general nature of an answer. § 422. The component parts of an answer. § 423. The caption of an answer. § 424. Tlie caption of an answer further considered. § 425. The appointment of a guardian ad litem. § 426. The reservation of exceptions to the bill made in the answer. § 427. An answer should he distinct and categorical. § 428. That the answer should be distinct and categorical — Further con- sidered. § 429. That the answer shouKl be distinct and categorical — -Further con- sidered. § 430. The effect of an answer by one defendant where others do not answer, §431. A general traverse or denial of the averments of the bill. I 432. The conclusion of tlie answer. § 433. The answer must he properly signed. § 434. Wlien the answer must be under oath. § 435. When the answer must be under oath further considered. § 436. How the answer should be verified. § 437. The sufficiency of "tlie affidavit to be made to an answer. § 438. How the sufficiency of an answer may be raised and determined. § 439. Exceptions to an answer defined, and how tlicy are tal be under oath, the rule requiring the cor- porate seal to an answer in West Virginia, at least where the bill Is not sworn to, would seem no longer to be based on reason. 122 Teter v. W. Va. Cent. & P. R. Co., 35 W. Va. 433, 14 S. E. 146; McKell V. Collins Colliery Co., 46 W. Va. 625, 33 S. E. 765. 123 Teter v. W. Va. Cent. & P. R. Co., 35 W. Va. 433, 14 S. E. 146; Roanoke St. Ry. Co. v. Hicks, 96 Va. 510, 32 S. E. 295; ante, § 176; Vermilyea v. Fulton Bank, 1 Paige Ch. (N. Y.) 37, 2 L. Ed. 553, and note ; Brumly v. Westchester County Mfg. Soc, 1 Johns. Ch. (X. Y.) 366, 1 L. Ed. 173, and note. The effect of an answer of an agent or officer of a corporation is considered and determined by Chan- cellor Walworth of Xevv York in Vermilyea v. Fulton Bank, supra, and his opinion is here subjoined: "It is now well settled that officers of a corporation may be made par- ties to a bill of discovery, for the purpose of enabling the complain- ant to obtain a knowledge of facts which coiild not lie ascertained by the answer of the corporation, put in under tlieir corporate seal, and without oatli. But what is to be the effect of that answer of the agent or servant of the corporation, is a question that does not seem to have received any formal adjudica- tion in this court. If it is to be §435 Equity Procedxjee 574 must be verified by the defendant in person.^^^ And if the de- fendant, by his answer, desires to put in issue an allegation in the bill "that any person made, endorsed, assigned or accepted any writing," the answer should be verified, or supplemented with an affidavit containing a separate denial of such fact.^^^* binding and conclusive upon tlie corporation, I can see no necessity for mal" v. Seward, 113 Va. 228, 74 S. E. V. Simmons, 9 Gratt. (Va.) 389; 155. Kimble v. Wotring, 48 W. Va. 412, "Although a decree has been pro- V.%1 Ts.t.'^.'^^itoi^r,^ — <^- ->^<1 --1 '■--^'-'^ to he Stuart V. Jarrett, 76 W. Va. 203, entered, an answer may be filed in 85 S. E. 251; Waggy v. Waggy, 77 the cause, if it has not been a>;tually W. Va. 144, 87 S. E. 178; Bartrug entered in the order book." Ash v. V Edgell 80 W Va. 220 92 S. E. ^^^^^^ g^^ ^^^^^^ ^ 438; Snider v. Robmson, 85 W. Va. • ' '' .,„ ,„ 673, 102 S. E. 482. As to what con- Roanoke L. & I. Co., 90 Va. 418, 18 stitutes a final decree, see post, S. E. 914, quoted in note 204, infra. §§ 594-599. See Kimble v. Wotring, 2n?. Trim v. Davisson, 6 W. Va. 48 W. Va. 412, 37 S. E. 606. But ^^g the court may compel it to be filed ' ' before. Johnson v. Mundy, 123 Va. -°'' T^tan v. Simmons, 9 Gratt. 730, 97 S. E. 564. (Va.) 389, 392. "A decree appealable as one ad- 204 Bean v. Simmons, 9 Gratt. judicating tlie principles of a cause (Va.) 389; Buford v. North Roa- is final within the meaning of sec- ^^^^ ^ ^ ^ ^^^ g^ ^^ ^jg_ ^^ ^ E. 914. § 445 Equity Pbocedube 588 directed and the decree therefor actually entered, it would not seem to be too late to file* an answer at the same term of court at which such decree has been entered.^"^ So a decree setting aside a conveyance as fraudulent, and appointing a commissioner to ascertain the location and value of the lands and the liens upon it, is not a final decree, so as to preclude the filing of an answer in the cause and an answer may thereafter, even though at a subsequent term of the court, be filed.^"^ But it is held in West Virginia that, after a cause has been referred to a com- missioner to report the liens upon certain real estate mentioned in the bill, the report of the commissioner ascertaining and fix- ing the liens, their amounts and priorities existing upon such real estate returned to the court, and a decree then entered in the cause confirming such report and directing the sale of such property, it is too late to file an ansv^er in the eause.^"^ In Kelty V. High,^"' the court set aside a final decree at the same term at which it was entered and permitted an answer to be filed. It is justly inferable from the adjudged cases that there are many instances in which the allowance of an answer to be filed rests largely in the sound discretion of the court. The statute permitting an answer to be filed at any time be- fore final de .ree does not apply to an amended or supplemental "lender Code 1887, § 327.5, allow- sos Welsh v. Solenberger, 85 Va. ing a defendant to filQ his aniswer 441, 8 S. E. 91. any time before final decree, it is -"'' Slinglufif v. Gainer, 49 W. Va. error to refuse leave to defendants 7, 37 S. E. 771; McDonald v. Mc- to file their answer ten days after Donald Planing Mill Co., 73 W. Va. the rendition of a decree against 78, 79 S. E. 1081. them, but before its entry in the 208 29 W. Va. 381, 1 S. E. 561. chancery order book, and during the But the defendant must show caunr same term of court, the answer for setting aside such a. decree, tendered by such defendants show- Wilson v. Kennedy, 63 W. Va. 1, ing a probable title in them to part 59 S. E. 736; McDonald v. Mc- of the land in suit." Buford v. Donald Planing Mill Co., 73 W. Va. North Roanoke L. & I. Co., supra. 78, 81, 79 S. E. 1081. 2or, Ogden v. Brown, 83 Va. 670. 3 S. E. 236. 589 The Answer §446 answer ; ^os and the time when such answer may be filed (of course not after final decree) seems to be a matter resting in the sound discretion of the eourt.^" An infant, within six months after attaining his majority, may file an answer showing cause against a decree, and, in a proper case, open up a final decree and make full defense to the suit.^'^ § 446. Where an answer may be filed. As a general rule, an answer must be filed at rules or during the session of the court. ^^^ But an exception exists as to an answer to a bill of injunction, which may be filed at any time.^^' The question here arises as to when a ease may properly be said to be at rules for the reception and filing of an answer or other proper pleading. It is certainly not at rules when it has prop- erly been placed on the "court docket"; ^^* but no case can be placed on the docket for hearing until it has been matured and is ready for a hearing.^*^ A chancery cause wherein there is a motion, or which has been set for hearing, or which is to bo 209 Elder v. Harris, 76 Va. 187; Poling, 61 W. Va. 78, 80, 55 S. E. Tracewell v. Boggs, 14 W. Va. 254. ggg But tlie statute does apply to an „' tt ■, i^ »t -u-n n -m answer to a rule to show cause. ^^^ Hayzlett v. McM.Uan, 11 W. Young & McWliorter v. Smith, 1117 Va. 464; Goddin v. Vaughn, 14 S. E. 110 (W. Va. 1U21). Gratt. (Va.) 102; First Nat. Bank "Where the new or amended an- v. Huntirgton Distilling Co., 41 W. swer presents new matter, tliat i.s y^^ ggg^ 23 S. E. 792, 56 Am. St. not material to the defense, tlie _ „,,/-, r. -o- iv, court may refuse to permit it to be ^ep. 878; Zell Guano Co. v. Heather- filed." Tracewell v. Boggs, supra. ly, 38 W. Va. 409, 18 S. E. 611. "Under Code Va. 187.3, CIf. 167, 2" See same citations. § 35, providing tliat a, defendant 214 See as to the statute directing may file an answer in a chancery ^he placing of cases on the court cause at any time before final de- , , . tit 17 n j ^n^^y ^o^ cree, a defendant for whom in his docket, W. Va. Code, 1913, c. 131, absence his counsel have filed an in- §§1, 2; Va. Code, 1904, §§3378, complete, irregular, and unsworn 3379. answer, which is in fact no answer, 215 Higginbotham v. Haselden, 3 can file a full and complete answer; „, „ ., „ , .... „ „„„. said section being mandatory." Rad- W. Va. 266; Va. Code, 1904, § 3379, ford V. Fowlkes, 85 Va. 820, 8 S. E. as to the Chancery Court of the 817. City of Richmond, in the very 210 Elder v. Harris, 76 Va. 187. language of thr Code, and by con- 211 Lafferty v. Lafferty, 42 W. struction, as to all other chancery Va. 783, 26 S. E. 262; Poling v. covltU. See ante, §280. ^ 448 Equity Procedure 590 heard upon a plea, demurrer or exceptions to an answer, may be placed on the court docket.^^^ And it is not necessary to docket any case which it is not necessary to mature at rules.^^' It is a reasonable deduction from the statutes of the Virginias that, after a chancery cause has been set for hearing and is ready to be placed on the court docket, an answer can not be filed at rules so as to make up an issue in the cause. § 447. What is a sufficient filing of an answer. An answer can not avail the defendant until it is filed or treated as filed ; but no formal order is really necessary to file an answer,^^* although it is regularly filed by the entry of a formal order, either at rules or in court. But a paper is considered as having been filed at rules when it has been delivered to the clerk for the purpose of filing it.^-'^ Where the answer appears among the papers of the cause, and the final decree mentions it as one of the papers upon which the cause is heard, this is treated as a sufficient filing of the answer.^^" § 448. An answer praying affirmative relief. In West Virginia, by virtue only of the statute, an answer, in addition to embodying a defense to the bill, may set up a claim to affirmative relief against the plaintiff or any defendant in the suit.^^^ But this statute is designed to allow the use of only such new matter in the answer constituting a claim to affirma- tive relief as could, and may be, used in a cross-bill, and operates to produce no other change in the pleadings in a court of equity.^^^ The effect of this statute is practically to combine the 216 W. Va. Code, 1013, u. 131, § 2; =-i W. Va. Code, 1913, c. 125, § 35. Ta. Code, 1904, § 3379. 22= Moore v. \YheeIer, 10 W. Va. 2" Gas Co. V. Wheeling, 7 W. Va. 35; Middleton v. Selby, 19 W. Va. 22. 167; McMullen v. Eagan, 21 W. 2i8Eosset V. Greer, 3 W. Va. 1. Va. 233; Norfolk & W. R. Co. v. 210 Darnell v. Flynn, 69 W. Va. McGary, 42 W. Va. 395, 26 S. E. 146, 71 S. E. 16. 297; Gist v. Virginian Ey. Co., 79 220Eosset V. Greer, 3 W. Va. 1. W. Va. 167, 90 S. E, 554. 591 The Answer §448 cross-bill and answer,^^^ in the absence of which they must be and are separate and distinct pleadings.^^* Inasmuch as an answer claiming affirmative relief is a substitute for the cross- bill, it can not introduce into the cause any new matter which is foreign to and distinct from that stated in the bill, and on which the bill is based, but such answer must be confined to the subject matter of the bill.^^B As a general rule, no relief can be obtained against a code- fendant by means of an ordinary answer.^^^ This must be accomplished by an answer setting up a claim to affirmative relief against such codefendant,^^' who must be made a party to such answer.^^^ However, a defendant may be granted relief =23 Middleton v. Selby, 19 W. Va. 167. --■t Idem. =25 McMullen v. Eagan, 21 W. Va. 233; Price v. Price, 68 W. Va. 389, 69 S. E. 892; Gist v. Virginian Ry. Co., 79 W. Va. 167, 90 S. E. 554; Eadcliff V. Corrothers, 33 W. Va. 682, 11 S. E. 228; Jolmson v. Stan- cliff, 113 Ga. 886, 39 S. E. 296. Thus, by way of illustration of the principle stated in the text, "if therefore an injunction to a sale of lands by a trustee be asked in a bill, on the ground that the deed of trust ■was wholly inoperative to convey the grantor's land because of fatal de- fects in the deed of trust, the an- swer can not pray affirmative relief so as to operate as a cross-bill, when the prayer for relief is based on the fact that the deed of trust was given to secure the purchase money of the land, and the deed to the grantor in the deed of trust reserved a vendor's lien, which the answer prays may be enforced. In such case there would be brought into the answer as the basis of the prayr for affirmative relief matters dis- tinct from those stated in the bill, which can not be done. "But if the bill of injunction goes further, and sets out a deed, in which the vendor's lien is reserved, and alleges, that it is fatally de- fective in not effectually conveying the contingent right of dower of a- wife, who signed it, and alleges that more is for this and other reasons claimed to be due under the deed of trust than is really due, and such bill asks general relief, such affirma- tive relief by the enforcement of the vendor's lien may he asked in the answer; for such relief is confined to matters involved in the original bill." Mc^Iullen v. Eagan, supra. Two defendants can not, by way of seeking cross-relief, litigate between each other a matter foreign to the subject matter of the relief sought by the plaintiff. Gist v. Virginian Ry. Co., siipra. 22cGofT v. Price, 42 W. Va. 384, 26 S. E. 287 ; Freeman v. Egnor, 72 W. Va. 830, 79 S. E. 824. 227 See same citations. 228 Grobe v. Roup, 46 W. Va. 488, 33 S. E. 261; Freeman v. Egnor, 72 §449 Equity Procedure 592 against a eodefendant without asking for it afSrmatively, wlien such relief is based upon the original subject matter of the bill, is put in issue by the pleadings between the plaintiff and some one or more of the defendants, and is germane to the prayer for relief in the bill.^^' § 449. The requisites of an answer claiming aflBrmative relief. An answer in the nature of a cross-bill setting up a claim to affirmative relief should first respond to the bill in a presenta- tion of the defense which it offers to it, following this with a statement of the facts constituting the claim to affirmative relief, with the same certainty and particvilarity of detail as the rules of equity pleading require in a formal cross-bill,^'" setting forth a case for equitable relief touching the subject W. Va. 830, 833, 79 S. E. 844, and cases cited. 229 Dudley v. Buckley, 68 W. Va. 030, 647, 70 S. E. 376; Freeman v. Egnor, 72 W. Va. 830, 833, 79 S. E. 824. "Was it error to decree relief in favor of Vrooman and the estate of A. A. McDougle, two of the four sureties who had paid an equal pro- portion of the aforesaid judgment? Vrooman and McDougle's admin- istratrix did not join in the suit with the plaintiffs, hut were made codefendants. Vrooman demurred to the hill, but did not answer. Mc- Dougle's administratrix made no ap- pearance. There are numerous au- thorities liolding that relief may he granted to a eodefendant upon a case made out liy tlie evidence and the pleadings hotween plaintiff and defendant. We have many decisions of our own on this point. Vance v. Evans. 11 W. Va. 342; Buffncr, Donnally k Co. v. Beicitt- Kerchiral Co., 14 W. Va. 738; Worthington v. Staunton, 16 W. Va. 208: Roots >'. Salt Co., 27 W. Va. 483; McKay v. McKay, 33 W. Va. 724; Dudley v. Barrett, 66 W. Va. 363; and 1 Hogg, Eq. Pro., §578. But proof only of such codefendant's right to the relief is not sufficient. There must be both pleadings and proof in order to entitle him to relief. An examination of the above cases will show either that tlie prayer of the plaintiff's bill was made on behalf of the eodefendant, as well as for himself, or that the eodefendant answered and prayed for relief." Dudley v. Buckley, supra. See Ep- person V. Epperson 108 Va. 471, 62 S. E. 344. 230Goff \. Price, 42 \V. Va. 384. 20 S. E. 287. As to the frame and necessary averments of a formal cross-hill, see ante, § 217. It is not necessary, of course, in an answer claiming affirmative relief, to state the original bill, as demanded by a formal cross-bill. 593 The Answer §449 matter of controversy contained in the bill, naming the persons interested in such new matter and making them parties to the answer by calling for process against them, concluding with the necessary prayer,^^i which ought to be a prayer for the specific relief desired and also general relief.^'^ In order to affect a codefendant by such an answer by a decree 'pro confesso, or otherwise, he m\ist be served with process,^^' but it is otherwise as to the plaintiff in the suit.^" Of course, the plaintiff, as well as the defendants, must be made a party to such an answer,^^^ and the reason that the plaintiff need not be served with process is that he must take notice of the entire answer of a defendant who is made a party for the purpose of answering and making any proper defense to the bill, while a defendant is not affected by the ordinary answer or other pleading of his codefendant.^'* The sufficiency of an answer in the nature of a cross-bill setting up a claim to affirmative relief may be tested by de- murrer.^'' 23iGoff V. Price, 42 W. Va. 384, 26 S. E. 287; Harrison v. Brewster, 38 W. Va. 294,- 18 S. E. 568. In Turner v. Stewart, 51 W. Va. 4(33, 41 S. E. 924, it is de- cided that "an answer not intended as a mere defense to the bill, but to affect the rights of a eorlefendant, must make him a party, and call for relief against him upon its facts, as in ease of a cross-bill, and process to answer it must be served upon that defendant." In McGillis v. Hogan, 190 111. 176, fiO N. E. 91, "where an answer claimed to constitute a cross-bill did not purport to make any one defendant thereto, nor ask that any one be required to answer it, and it was not answered, and the de- fendant filing such answer went to a full and final liearing of the cause without taking steps to have his answer treated as a cross-bill, such answer was abandoned as a cross- bill, and no accounting being de- manded by any of the pleadings, except such answer, a decree on the pleadinixs, would not be reversed be- cause tiie court did not cause an ac- count to be had and stated by the master." 232 4nfe, §432; Price v. Price, 68 W. Va. 38!), 393, 69 S. E. 892. 233GoflE V. Price, 42 W. Va. 384, 26 S. E. 287; Martin v. Kester, 46 W. Va 438, 33 S. E. 238: Grobe v. Roup, 46 W. Va. 488, 33 S. E. 261; Woods V. Douglass, 46 W. Va. 6-57, 33 S E. 771; Perrow v. Webster, 124 Va. 321, 97 S. E, 770. 234 Goff V. Price, 42 W. Va. 384, 26 S. E 287; Norfolk & W. R. R. Co. V. McGary, 42 W. Va. 395, 26 S. E. 297. 23B Martin v. Kester, 46 W. Va. 438, 33 S. E. 238. 2SI5 Goff V. Price, 42 W. Va. 384, 26 S. E. 287. 237 Rust V. Rust, 17 W. Va. 901. See Scott v. Rowland, 82 Va 484. 4 S. E. at p. 601. But exceptions to such an answer will be treated as a demurrer. Croft Land Co. v. Roval Block Coal Co., 105 S. E. 799 (W. Va. 1921). § 450 Equity Procedure 594 § 450. When an answer will be treated as a cross-bill. In Virginia, there is no statute authorizing affirmative relief by means of an answer in the nature of a cross-bill, as there is in West Virginia. But while this is the ease, affirmative relief is often afforded in that state by an answer, the court treating it as a cross-bill.^^^ The many instances wherein an answer has been treated as' a cross-bill authorize the statement of the rule that where all the proper parties are before the court, the answer contains the proper averments, and the relief sought by the answer would be proper for a cross-bill, the courts of Virginia, to avoid a multiplicity of suits, and the expense and delay inci- dent to the use of a formal cross-bill, will permit an answer to be treated as a cross-bill and the appropriate relief to be given to a defendant in that way against the plaintiff.^^' In West Vir- ginia, an answer likewise may also be treated as a cross-bill.^** When the answer and proofs in a cause in which an injunction has been issued and dissolved show an equitable claim against the plaintiff, though the plaintiff does not recover in the caase, still 238 Adkins v. Edwards, 83 Va. deed of trust was enjoined by M. on 316, 2 S. E. 439; Cralle v. Cralle, tlie ground, among others, that he 79 Va. 182; Scott v. Rowland, 82 did not owe K. anything on settle- Va. 484, 40 S. E. 601 ; Kyle v. Kyle, ment, and prayed for a settlement 1 Gratt. (Va.) 520; Gregg v. Sloan, to be had between them to ascertain 76 Va. 497, 501, 502; Spoor v. Til- his indebtedness, if anything, to K- 8on, 97 Va. , 279, 33 S. E. 609; Defendants filed an answer in the Wayland v. Crank, 79 Va. 602. nature of a cross-bill alleging prior 238 See same citations. liens on said land by judgments 2*oMartiji v. Kester, 49 W. Va. against M., and making .the judg- 647, 39 S. E. 599. ment creditors of M. parties to the "JI. conveyed two hundred and suit, and praying for a convention eleven and one-half acres of land in of the lien creditors and to ascer- trust to secure K. the payment of tain the amounts and priorities of a note for five thousand dollars, the the liens. Held, the court did not note containing a provision that it err in permitting the answer and was to be subject to any credit to cross-bill to be filed." Martin v. which the maker might show he had Kester, supra. But of course such paid on said claim or debt, upon a an answer is nothing more than the fair adjustment of all matters be- answer asking affirmative relief au- tween them. D., the trustee, pro- thorized by the statute.' ceeding to sell the land under said 595 The Answer § 451 the defendant should have a decree against the plaintiff, and thus adjust the respective rights and liabilities of the parties, instead of simply dissolving the injunction and dismissing the hill.2" :§ 451. The answer in specific cases — In the matter of account. Inasmuch as matters of account are usually referred to a commissioner of the court, who has full power to adjust the accounts of the parties,^"*^ all those questions which usually form the subject matter of an answer are left to such commissioner.^*' If the defendant controverts the plaintiff's right to an account- ing, or that there have been mutual accounts, a denial without going into detail is sufficient.^^* But where a defendant is bound to give an account, as where a bill is filed against him as trustee calling for a discovery, he must give the best account he can by his answer, by referring to books, etc., sufficiently to make them a part of his answer, and afford the plaintiff an opportunity of inspecting them.^*^ And a partner bound to account must give a clear, distinct, and intelligible statement of the results of the business, referring also to particular books and to the page, if necessary, so that a party entitled thereto may inquire into and investigate its correctness. A reference to the books of the concern generally, and to former accounts, is not sufficient.^*^ It is usual, where the defendant is required to set forth a general account, or to answer as to moneys received ■or documents in his possession, to set forth the account or list of the sums or documents in one or more schedules annexed to the answer, which the defendant prays may be taken as part of his answer. Such practice is very convenient, and in many 2-11 Smyth V. Sutton, 24 Gratt. Perry v. Foster, 62 How. Pr. (N. (Va.) 191. Y.) 228; Armstrong v. Crocker, 10 212 Posi, § 657. Gray. (Mass.) 269. 243 Goldthwaite v. Ray, 149 Mass. 245 1 Danie'l, Ch. PI. and Pr. (6th 185, 21 N. E. 359. Am. Ed.), 724, 725. 21-' Livingston v. Livingston, .T -''<'• Idem, note, citing Gordon v. Johns. Ch. (X. Y.) 51, 1 L. Ed. 539; iraramell, 19 N. J. Eq. 216. § 453 Equity Procedure 59& eases indispensable.^" If the plaintiff has no right to an ac- counting and it so appears on the face of the bill, the objection may be raised by demurrer ; ^''* otherwise, by plea.^" § 452. The answer setting up a discharge in bankruptcy. If a defendant would avail himself of a discharge in bank- ruptcy he must do so by plea ^^'' or answer. And though it is usual to make this defense by plea, it may be relied on by answer, as well.^^^ An answer alleging that defendant made his application to be adjudged a bankrupt, setting forth the terms of the application ; that he then resided in the district in which the application was made; that he was entitled to the benefit of the bankruptcy law as provided by the act of congress, and was owing debts not contracted as executor or in any other fiduciary character; that upon regular proceedings had in the- distriet court he was adjudged a bankrupt and that the decree is still in force; that upon further regular proceedings he was discharged from his debts by a decree of the court and received a certificate of such discharge, setting out the certificate at large in the answer, or filing it as an exhibit with the answer, is sufficient.^^^ It is not necessary in an answer to allege that the plaintiff's debt was not within the class of debts excluded from the operation of the bankrupt law.^^,' If the plaintiff intends to insist that his debt was one of that class, he must state the fact in his bill, as he would any other matter of avoid- ance.^^* § 453. The answer in the matter of fraud. If the bill charges fraud, all the allegations of the facts and circumstances attending it should be positively and distinctly ="7(icm, 727. Ch. (N. Y.) S\5, 7 L. Ed. 608; Scott =48 1 Beach, Mod. Eq. Pr., § 336. v. Grant, 10 Paige CIi. (N. Y.) 48.5, =49.4nte, §§405, 406. or, of 4 L. Kd. 1060: Hiibhell v. Cramp, course, by answer. Ante, § 412. 11 Paige CIi. (X. Y.) 310, 5 L. Ed. 2»o.4niP, §401; Alcott v. Avery, 146. 1 Barb. Ch. (N. Y.) 347, n L. 252 MeCabe v. Cooney, 2 Sandf Ed. 933; First Nat. Bank v. Cootes, Ch. (N. Y.) 315, 7 L. Ed. 608. 74 W. Va. 112, 81 S. E. 844. zes/dem. 2B1 McCabe v. Cooney, 2 Sandf. 204 Idem. 597 The Answer §454 denied in the answer.^^^ A general denial of fraud can not avail the defendant where the answer admits facts from which fraud is necessarily inferred. ^^^ And if fraud is set up in the answer as a defense to the bill, the facts and circumstances which constitute it should he clearly and concisely alleged and with sufSeient particularity to inform the opposite party of what he is called upon to meet.^^^ If the charge of fraud is made upon information and belief, it should be alleged as true, so that an issue can be made upon such eharge.^^' § 454. The answer in the matter of injunctions. If the defendant desires to defend the bill upon which the injunction is awarded by controverting the truth of its allega- tions, the answer should fully, fairly, plainly, distinctly and =5s Grobe v. Roup, 46 W. Va. 488, 33 S. E. 261; Bronson v. Vaughan, 44 W. Va. 406, 29 S. E. 1022; Dent V. Pickens, 59 W. Va. 274, 53 S. E. 154. -'•" Sayre v. Frederick, 16 X. J. Eq. (1 C. E. Green), 205. With reference to the doctrine stated in the text and illustrative thereof, we here present an observa- tion of the court made in the course of its opinion in Indian River Steamboat Co. v. East Coast Transp. Co., 28 Fla. 387, 10 So. at p. 491, 29 Am» St. Rep. 258, where- in the judge delivering the opinion says: "While the chancellor will ordinarily dissolve an injunction upon an answer denying all the equities of the bill, or where the bill and accompanying evidence are fully met by the answer and its accom- panying evidence, it does not follow, as a matter of course, to do so in all cases. Where fraud is charged an illustration is found in the case of Hayden v. Thrasher, supra (20 Fla. 715), that mere denials of fraud or of fraudulent intent, without a full explanation of the facts charged in the bill, will not be sufficient to justify a dissolution of the injunc- tion rightly granted in the first instance. And so, in case an in- junction is granted to prevent ir- reparable injury, the dissolution or continuance thereof rests in the sound discretion of the court, to be governed by the nature of the case. Fuller V. Cason, supra (26 Fla. 476, 7 So. 870)." 25T xhe same rule as to charging fraud in the bill obtains as to its averment in the answer. 1 Beach, Mod. Eq. Pr., § 343, referring to §§ 107, 108, as to the requirement.a of the bill in this particular. See ante, § 127, as to how fraud should be alleged. 2-'8 Hogg, Eq. Pr., § 177. Ths statement in the work just cited is made with reference to bills, but the doctrine is equally true as to an- swers. §'455 Equity Procedure 598 positively deny the allegations of the bill upon which its equity is predicated, so as to put the plaintiff on proof of them.^^' Thus, where facts and circumstances are alleged upon which notice depends, and the answer merely denies notice without denying such facts and circumstances, the answer is not sufficient to put the plaintiff on proof of his bill.^'" Nor is the denial of the allegations of the bill when such denial is made upon infor- mation and belief, except in the answer of a personal represent- ative, sufficient to put the plaintiff on proof thereof.^^^ And upon a motion to dissolve an injunction, even under the rules of equity practice in Virginia, those allegations of the bill not denied by the answer are taken as true.^^^ § 455. The answer in the matter of fraudulent conveyances. When the conveyance is charged to have been made with the- intent to defraud, the answer may not only deny such charge in the usual full and positive manner required in such cases, but may set up any fact or circumstance which will in any way tend to avoid the charge of fraud, and show the real intention under which the parties acted in making the eonveyance.^^^ But 259 Hayzlett v. McMillan, 11 W. A special injunction will not be- Va. 464; Shonk v. Knight, 12 W. dissolved, of course, upon the filing Va. 667; Cox v. Douglass, 20 W. of an answer denying plaintifil's Va. 17.5; Livesay v. Feamster, 21 whole case. The answer must posi- W. Va. 83 ; Schoonover v. Bright, tively deny the material facts eon- 24 W. Va. 698; Hughes v. Tins- stituting plaintiff's title to equi- ley, 80 Va. 259; Randolph v. Ran- table relief; its denials must be dolph, 6 Rand. (Va.) Ifl4; Motley v. grounded upon personal knowledge Frank, 87 Va. 432, 13 S. E. 26; of the facts; and its statements Hogan V. Duke, 20 W. Va. 244 ; De- must be matters of fact, and not of loney v. Hutcheson, 2 Rand. (Va.) law, which defendant had the means 183; Ingles V. Straus, 91 Va. 20n, 21 of knowing to be true, and they S. E. 490; Thomas v. Rowe, 2 Va. must be at least credible. Burnley Dec. 113, 22 S. E. 157. v. Cook, 13 Tex. 586, 65 Am. Dec. =co Grobe v. Roup, 46 W. Va. 4S8, 79. 33 S. E. 261. =°2 B. & 0. R. R. Co. v. City of ="1 Bart., Ch. Pr. (2nd Ed.), Wheeling, 13 Gratt. (Va.) 40; ante, 439 ; Attorney General v. Cohoes Co., § 428. 6 Paige Ch. (N. Y.) 133, 29 Am. 2«3 Filley y. PxPgistir, 4 Minn. Dec. 755. See W. Va. Code, 1913, 391, 77 Am. Dee. rr22; Casto v. Fry, c. 125, § 42. 33 W. Va. 449, in S. E. 779. 599 The Answer 456 a denial of an actual intent to defraud will not avoid the conse- quences of an act which is in effect fraudulent.^''* And where a certain consideration is expressed in the deed, as a nominal one for instance, a substantial and valuable consideration may be alleged and proved. ^^^ And where a deed or other con- veyance is attacked as voluntary, and it is sought to set it aside because made without consideration, the defendant may, and should, rely upon the statute of limitations in his plea or answer, if he would defeat the bill because of lapse of time.^^^ § 456. The answer in matters of divorce. A bill for a divorce can not be taken for confessed in either of the Virginias,^'^^ so that whether 'the defendant answer the bill or not the plaintiff must prove his or her bill.^^* But 264 1 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 726, note, citing Newlove V. Callaghan, 86 Mich. 301, 48 N. W. 1096, 24 Am. St. Pep. 123; Hobo- ken Savings Bank v. Beckman, 33 N. J. Eq. 53. See Dent v. Pickens, 59 W. Va. 274, 53 S. E. 154. zos Casto V. Fry, 33 W. Va. 449, 10 S. E. 779. In tliis case, in deducing the prin- , ciple stated in tlie text, Snyder, P., says: "It is true, even in equity, that a party claiming under a deed is bound by the general character of the consideration stated in the deed. He can not, for instance, as a part of his own case, if money be averred, prove natural love and affection; or, if natural love and affection be averred, prove money. But, when the deed is assailed by third parties on the ground of fraud, a larger field is opened, and, as relevant evi- dence to the issue of fraud, it is admissible to show, in' addition to the consideration of affection ex- pressed a valuable consideration paid, or the converse. And when a deed recites no consideration, or an inadequate one, the party claim- ing under it may prove a substantial consideration, though as against a third party contesting the deed, the onus of proving the consideration will rest upon the party claiming under it. 2 Whart. Ev. § 1046; Rogers v. Verlander, 30 W. Va. 619 (5 S. E. 847)." 266 Hunter v. Hunter, 10 W. Va. 321; McCue v. Harris, 86 Va. 687, 10 S. E. 981; Welsh v. Solenberger, 85 Va. 441, 8 S. E. 91; Scraggs v. Hill, 43 W. Va. 162, 27 S. E. 310. If the lapse of time appears on the face of the bill, it need not be relied on by answer in the state of West Virginia, but it may be availed of by demurrer. Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. 795. It is otherwise in Virginia. Ante, §§ 327, 377. ^"W. Va. Code, 1916, c. 64, § 8; Va. Code, § 2260. This is true in most, if not all, jurisdictions. 2(i8 Hughes V. Hughes, 44 Ala. 698; Bennett v. Bennett, 28 Cal. § 456 Equity Pboceduee 600 aside from the statutory inhibition from taking the bill for confessed, the pleadings and rules of evidence are the same as in other suits in equity, so that a defendant may file an answer which is responsive to the bill, and have the benefit of it as in any other suit.^^" The answer may deny the facts alleged in the bill which constitute the ground for divorce,^'" and may also set up any proper defense to the bill, as recrimination, ^'^ or con- donation,-'^ or adultery of the plaintiff,^^^ for instance. But any defense upon which the defendant would rely to defeat the plaintiff's bill, aside from the traverse of the averments of the bill, must be set up affirmatively in the answer. 2'''' Even if the matters set up in an answer do not constitute a complete defense to a suit, yet if they are material to a defendant as to the matter of costs or alimony,^''^ or the custody of the children,^'* they will not be treated as impertinent. Upon a positive denial by the answer of the allegation of the bill upon which the plaintiff's right to a divorce depends, the plaintiff can not have the desired relief upon less evidence than is required to annul an ordinary contract for the sale of property.^" In West Virginia, every 600; Schmidt v. Schmidt, 29 N. .T. mencement of liis suit for a divorce Eq. 496; Trough v. Trough, 59 W. is a bar to such suit. And where Va,. 464, 473, 53 S. E. 630. the adultery of the complainant is =09 Latham v. Latham, 30 Gratt. committed after the answer of the (Va. ) 307; Throckmorton V. Throck- defendant has been put in, she will morton, 86 Va. 768, 11 S. E. 289: be permitted, if she applies immedi- Haynor v. Haynor, 112 Va. 123, ately after the discovery of the fact, 70 S. E. 531. to set up that defense in a supple- =T0 Throckmorton v. Throckmor- mental answer, or by a cross-bill in ton, 86 A^a. 768, 11 S. E. 289. the nature of a plea puis darrein 271 Jones V. Jones, 18 X. J. Eq. continuance." Idem. 33, 90 Am. Dec. 607. 2^* Smith v. Smith, 4 Paige Ch. 272 Warner v. Warner, 31 N". J. (N. Y.) 432, 3 L. Ed. 502; Wood v. Eq. 225; Smith v. Smith, 4 Paige Wood, 2 Paige Ch. (X. Y.) 108, 2 L. Ch. (N. Y.) 432, 3 L. Ed. 502, Ed. 833, and note: Dntcher v. Duteh- 27 Am. Dec. 75; Dutcher v. Dutcher, er, 39 Wis. 664. 39 Wis. 664. 275 Hooper v. Hooper, 11 Paige 273 Smith v. Smith, 4 Paige Ch. Ch. (N. Y.) 46, 5 L. Ed. 52. (X. Y.) 432, 3 L. Ed. 502. 270 Van Voorhis v. Van Voorhis, "The adultery of the complainant 94 Mich. 60, 53 X. W. 964. although committed after the com- 277 1 Bart., Ch. Pr. (2nd Ed.), 429. 601 The Answee § 458 answer filed in a divorce suit must be verified by the oath of the defendant.^'^ § 457. The answer in the matter of res adjudicata. The defense of res adjudicata can be made by answer as well as by plea.^''^ The defense may be made in the- answer by embodying in it the essential averments required to constitute a sufficient plea of former adjudication.^^" § 458. The answer in the matter of a bona fide purchaser. A defendant may set up in an answer as well as by plea the defense that he is a bona fide purchaser without notice.^^' The answer must set forth all the essential requisites constituting one a ho7ia fide purchaser without notice, — the deed of convey- ance, debt, parties and contents briefly, that the vendor was in possession seized, or pretending to be seized, in fee; the con- sideration, its payment and the amount and time of payment; denial of notice previous to and down to the time of the payment of the purchase money, even though notice has not been alleged in the bill, as well as all facts alleged in the bill from which notice may be inferred. ^^^ 27SW. Va. Code, 1916, c. 64, §8. Johns. Ch. (N. Y.) 288, 1 L. Ed. 2T9 1 Beach, Mod. Eq. Pr., §345; 143. ante, §§ 3fl8-403. See note to Frost v. Beekman, 280 As to the essentials of a plea 1 Johns. Ch. (N. Y.) 288, found of res adJKdicata, see ante, § 398. in 1 L. Ed. at pp. 144, 145. -SI Donnell v. King, 7 Leigh (Va.) In Cochrane v. Hyre, 49 W. Va. 393. 315, 38 S. E. 554, it is decided that =82 Carter V. Allen, 21 Gratt.(Va.) "when, in a suit upon a chose in 241; Donnell v. King, 7 Leigh (Va.) action brought by the assignee there- 393; Downman v. Eust, 6 Rand. of, the debtor pleads, as a set-off (Va.) 587; Rorer Iron Co. v. Trout, thereto, a claim against the assign- 83 Va. 397, 2 S. E. 713, 5 Am. St. or, of which he avers himself to be Rep. 285; Tompkins v. Mitchell, 2 a purchaser without notice of the Rand. (Va.) 430; Harris v. Fly, 7 assignment, such set-off will not be Paige Ch. (N. Y.) 421, 4 L. Ed. 213; allowed if it appears that, before he Denning v. Smith, 3 Johns. Ch. (N. purchased the claim, the defendant Y. ) 345,- 1 L. Ed. 642; Murray v. had notice of the assignment, or had Finster, 2 Johns. Ch. (N. Y.) 155, knowledge of such facts as were suf- 1 L. Ed. 329; Frost v. Beekman, 1 ficient to have put him vipon inquiry § 459 Equity Procedure 602 § 459. The answer in the matter of the statute of frauds. "When the bill alleges an agreement or contract for the sale or purchase of real estate, and such agreement or contract is either admitted or not controverted by the answer, it will be treated as good under the statute of frauds, or otherwise bind- ing on the defendant.^" And even if the contract be alleged to be an oral one, and the answer admits it, there is no need of any proof of the contract or writing to establish it.^" But if the answer denies that there was such a contract as is alleged in the bill, this imposes upon the plaintiff the burden of proving the contract, either by a written contract or agree- ment,^*' or by such part performance as will take the ease out of the operation of the statute of frauds.^*^ But although the parol agreement is admitted, the statute of frauds may be relied on in the answer, and the defendant will have the full benefit of j|. 287 < nnn^r. ooo j -ij this section : 1 Bcach, Mod, Eq. Pr., Cas. 1914C, 263, and cases cited. » ,40 285 Barrett v. McAllister, 33 W. 2i% Idem Va. 738, 11 S. E. 220, citing Brown, 603 The Answer § 461 however, in a general and informal way,^^^ if it be averred that the contract is not in writing.^^" § 460. The answer in the matter of the statute of limitations. The statute of limitations can not be relied on as a defense unless pleaded, or in some form set up in the pleadings.^'-' But anything in an answer which will apprise the plaintiff that the defendant relies on the statute of limitations is sufficient, if such facts are stated as are necessary to show that the statute is applicable.^'^ The same strictness and particularity are not required in an answer as in a plea.^'^ If an answer allege that the cause of action did not accrue within a specified number of years, it appearing that the statute of limitations is relied on, any other less number of years may be shown that may be proper to bring the cause within the operation of the statute. ^^* § 461. The answer in the matter of usury. No one can rely upon the defense of usury, as a rule, except the debtor himself,^'^ so that the answer setting up usury must be filed by a debtor-defendant.^^* In many jurisdictions the facts constituting usury must be pleaded with great precision 289 Eowton V. Eowton, 1 H. and In West Virginia and many other M. (Va.) 92; Smith v. Peterson, 71 jurisdictions it may be availed of by W. Va. 364, 366, 76 S. E. 804. A demurrer, in a proper case, but in general denial that the contract was Virginia the rule is otherwise. Ante. made is sufficient. Idem. See Eaves § 327. V. Vial, 98 Va. 134, 34 S. E. 978. 292 Tazewell v. Whittle, 13 Gratt. 290Champlin v. Parish, 11 Paige (Va.) 329; Talbott v. Woodford, 48 Ch. (N. Y.) 40.5,5 L. Ed. 179. In the W. Va. 449, 451, 37 S. E. 580. Virginias, however, even the latter 293 1 Beach, Mod. Eq. Pr., § 347. allegation wovild not seem to be nee- 294 Van Hook v. Whitloek, 7 Paige essary. See citations in note 289, Ch. (N. Y.) 373, 4 L. Ed. 194. svpra. 295 Lee v. Feamster, 21 W. Va. 291 Hickman v. Stout, 2 Leigh 108. 45 Am. Rop. 549; ante, §§83, (Va.) 8; Gibson v. Green, 89 Va. 397. 534, 16 S. E. 661, 37 Am. St. Rep. =»« Lee v. Feamster, 21 W. Va. SS3. 108, 45 Am. Rep. 549; ante, § 397. [21] §461 Equity Peocedueb 604 and certainty;^" but in the Virginias, by virtue of statute,^'* tbe defendant may plead in general terms that the contract or assurance on which the action is brought was for the payment of interest at a greater rate than is allowed by law, and this is sufficient in an answer to raise the question of usury in a court of equity.^'" In Virginia, it has been held that, if usury under the laws of a foreign state is relied on as a defense, the law of usury in such state must be shown in the answer ; ^""' and if the contract is one payable in such foreign state, the interest laws of that state govern in the matter of usury. '"^ But a foreign corporation coming into West Virginia to transact busi- ness must conform to the law of this state, if there be any, regulating similar corporations organized under the laws of this state ; and its contract, although in terms solvable in the foreign state in which such corporation has its domicile, must be such a contract as a similar domestic corporation is authorized to make, or the courts of this state can not enforce, or permit the enforce- ment of, its performance.^"^ "A domestic building and loan 287 1 Beach, Mod. Eq. Pr., §349; 1 Enc. PI. and Pr., 878. This was formerly the ease in Vir- ginia. Smith V. Nicholas, 8 Leigh (Va.) 353; Crenshaw v. Clark, 5 Leigh (Va.) 69. 288 W. Va. Code, 1913, c. 96, §6; Va. Code, 1004, §2821. 288Brakeley v. Tuttle, 3 W. Va. 86, 131. The statute provides that to such a plea (answer) the plaintiff shall reply generally, but may give in evi- dence upon the issue made up there- on, any matter which could be given in evidence under a special replica- tion (or, of course, in equity, under an amended bill). And the defend- ant may give in evidence any fact showing or tending to show that the contract or assurance, or other writ- ing upon which the action was brought, was for an usurious con- sideration. Idem. 300 Fant v. Miller, 17 Gratt. ( Va.) 47. But in West Virginia, the stat- ute provides that the courts shall take judicial notice of the statutes of other states. W. Va. Code, 1913, c. 13, § 4. Hence in this state it would not seem necessary to plead or prove the laws of a sister state. Central Trust Co. of 111, v. Hearne, 78 W. Va. 6, 88 S. E. 450; Appa- lachian Marble Co. v. Masonic Tem- ple Assn., 79 W. Va. 471, 91 S. E. 403. 301 Bowman v. Miller, 25 Gratt. (Va.) 331; National Mutual Bldg. & Loan Assn. v. Ashworth, 91 Va. 706, 22 S. E. 521. 302 Floyd v. National Loan & In- vestment Co., 49 W. Va. 327, 38 S. E. 653. 605 The Answer § 462 association may fix a minimum premium to be deducted in advance or paid in periodical installments, but in either case such premium must be a certain, definite sum, fixed and determined at the time of the making of the loan, and the con- tract of a foreign building association, made with a citizen of this state, secured by a deed of trust upon real estate situated in this state, and by its terms to be performed in the domieilary state, must conform to this requirement ; and if it does not, such contract is not within the exemption from the operation of the usury laws given by our statute to domestic building and loan associations, and in such case only the principal of the loan, with legal interest thereon, together with such sums as have been necessarily expended in preserving the property, less the amounts paid into the association by the borrower as dues, interest, premiums and fines, to be treated in the settlements as partial payments, can be collected, and a sale under the deed of trust will be enjoined until the amount thus due is settled, unless the basis of settlement herein laid down be con- ceded by the association in proceeding to sell. ' ' ^»' § 462. As to the exhibits filed with an answer — Their purpose and effect. It is not usual to set out documents of any kind in haec verba in a pleading,^"'' but only to refer to them in a general way, and for the purpose of introducing them into a cause, to file them as exhibits, marking them for identification.^"^ And in many jurisdictions, as in Virginia and West Virginia, their genuineness can not be questioned, when their execution or making is alleged, unless denied by affidavit.^"^ This effect given to a paper or document is by virtue of statute, which substantially declares that when any pleading alleges that any 303 7rfem. Bix, 18 W. Va. 528; Bee v. Burdett, ■104 1 Beach, Mod. Eq. Pr., §§98, 23 W. Va, 744; Kelly v. Paul, 3 109. Gratt. (Va.) 191 ; Shepherd v. Frya, son Ante, % 156. 3 Gratt. (Va.) 442; Simmons v. •too Maxwell v. Burbridge, 44 W. Simmons, 33 Gratt. (Va.) 451,; Va. 248, 28 S. E. 702; Robinson v. Harnsberger v. Cochran, 82 Va. 727. §463 Equity Procedure 606 person made, indorsed, assigned, or accepted any writing, no proof of the handwriting of such person shall be required, unless the fact be denied by an affidavit, with the plea which puts it in issue.'"'' If the document or paper is alleged in the answer to have been made, its execution is properly put in issue by a general replication, accompanied by an affidavit denying the execution.'"* The issue thus raised may be decided by a commissioner upon a reference to him or by the court itself, as in its discretion it may determine.'"' But it is error to hear any evidence concerning the genuineness of such writing unless its genuineness is properly put in issue.'^" § 463. The effect of an answer as evidence. In the absence of statute, the general rule is that a sworn answer responsive to the bill, denying its material allegations, can be overcome only by the evidence of two witnesses, or one witness and strong corroborating circumstances ; '^^ or by cir- cumstances or documentary evidence alone, when either of the latter classes of evidence presents a preponderance equivalent to two witnesses or one witness with corroborating circum- 307 W. Va. Code, 1913, c. 125, § 40; Gros, 6 Am. and Eng. Dec. Eq. at p. Va. Code, 1904, §3279. See Wil- 65: "The reason for requiring such liams V. Smith Ins. Agency, 75 W. a preponderance of evidence ig, that Va. 494, 84 S. E. 235, Ann. Cas. as the complainant calls upon the 1917A, 813. defendant to answer his allegations, 308 Simmons v. Simmons, 33 Gratt. or to disclose certain facts, he there- (Va.) 451. ty admits the answer to be cvi- 309 Harnsberger V. Cochran, SHpro. dence; and being evidence, it must 310 Maxwell v. Burbridge, supra. be at least equal to the testimony of 311 Arnold v. Welton, 5 W. Va. any other witness, so that the testi- 436 ; Leachman v. Adamson, 5 W. mony of but a single witness for the Va. 443; Jones v. Abraham, 75 Va. plaintiff leaves the balance of proof 466, 470 ; Moore v. Ullman, 80 Va. even, and in order to obtain the pre- 307 ; 3 Tucl<., Comm., 502, and cases ponderance of evidence necessary to cited; Carter v. Carter, 82 Va. 624; turn the balance in his favor, the Becl .Appeal (Pa.), 8 Atl. 838, 160; Jones v. Abraham, 75 Va. 466; -6 Sad. 100. Deimel v. Brown, 136 111. 586, 27 ^ss See the numerous cases cited in X. E. 44. note to Roach v. Glos, 6 Am. and 330 See same citations. Eng. Dec. in Eq., at pp. 80, 81. 337 Union Bank v. Geary, 5 Pet. szajdem, pp. 81, 82. (U. S.) 99, 8 L. Ed. 60; Deimel v. ^io Ante, §463. Brown, 136 III. 586, 27 K E. 44; 34i See previous citations under Atkinson v. Foster, 134 111. 472, 25 this section. For the extent of proof N. E. 528; Knickerbacker v. Harris, required by the plaintiff, when the 1 Paige Ch. (X. Y.) 209, 2 L. Ed. answer, from its nature or by virtue 620; Town v. Xeedham, 3 Paige Ch. of statute, merely puts in issue the (X. Y. ) 545, 3 L. Ed. 268, 24 Am. allegations of the plaintiff's bill, see Dec. 246; Hutchinson v. Smith, 7 post, §470. Paige Ch. (X. Y.) 26, 4 L. Ed. 49; § 468 Equity Procedure 612 made upon, property, as done to hinder, delay or defraud the plaintiff, and the bill alleges that such conveyance or charge is without consideration deemed valuable in law, the burden of proving such conveyance or charge to be for a valuable consideration is upon the defendant, although he has denied in his answer the want of consideration alleged in the bill.^''^ And so, too, inasmuch as a corporation can not be sworn and puts in its answer under its common seal,^''^ such answer is not evi- dence for the corporation, though responsive to the bill ; '''* but it puts in issue the allegations of the bill to which it re- sponds as well upon a motion to dissolve an injunction as upon the hearing of the cause. ^^^ But an answer of a corporation, sworn to by an officer on his personal knowledge, is entitled to the benefit of the equity rule that a responsive answer is evidence only to be overcome by the testimony of two witnesses, or of one with corroborating circumstances.'^* That the answer of a corporation thus sworn to may have this effect as evidence, the officer making oath to it must be one having knowledge of the facts.^" § 468. The effect of an answer in West Virginia. By virtue of statute in West Yirgima, which provides that, when a defendant shall deny any material allegation of the bill, the effect of such denial shall be only to put the plaintiff on satisfactory proof of the truth of such allegation,^^* an answer is not entitled to any peculiar weight such as it had prior to the enactment of this law,^" and such as it still has in Virginia 342 Hogg, Eq. Princ, §191. 3*9 Seabright v. Seabright, 28 W. 04, ,1,,^!' 8 4':!'^ Va. at p. 440; Richardson v. Done- 343,i„je, §4.iS. „.^ , hoo, 16 W. Va. 685; Jarrett v. Jar- 344 B. & 0. E. R. Co. T. City of ^^^^^ j^ ^y Ya^ 584. McFarland v. Wheoling. 13 Gratt. (Va.) 40. Douglass, 11 W. Va. at p. 644; 345 B & R. R. Co. V. City of Rogers v. Verlamder, 30 W. Va. 619, „, ,.■ in f, „t+ iVa 1 4(1 639-640, 5 S. E. 847; Bee v. Burdett, Wheeling. 13 Gratt. (Va.) 40. ^3 w. Va. 744, 746; Knight v. 340 Kane v. Schuylkill Fire Ins. Nease, 53 W. Va. 50, 44 S. E. 414; Co 109 Pa. 198, 48 Atl. 989; Gantt Glade Goal Mining Co. v. Harris, 65 V. Cox, 199 Pa. 208, 48 Atl. 992; W. Va. 152, 63 S. E. 873; First ^ , n X, loT tr™ ooQ ino Nat. Bank of Webster Springs v. Carle v. Corhan, 127 Va. 223, 103 ^^^^.^^^^^ gg ^ y^ 298, 101 I. E. S. E. 699. 474. But see Woodyard v. Sayre, 3" Gantt V. Cox & Sons Co., 199 90 W. Va. 547, 111 S. E. 313, hold- Pa. 208 48 Atl. 992. '"S VnsA an answer is evidence for ' ' ' the defendant at least in some in- 348 w. Va. Code, 1913, c. 125, § 59. stances. 613 The Answer §469 when the oath to the answer is not waived by the plaintiff in his bill in that state and as defined by the rule hereinbefore given. '^^ The effect of an answer in West Virginia is only that of a plea in a common law action, and its denial of the allegations of the bill only throws the burden on the plaintiff of proving the truth of such allegations, whether the answer be sworn to or not.^^^ This statute lessens the force and effect of an answer as evidence in the cause, ^^^ as compared with its effect under the general rule of equity practice, as announced in a former section of this work.^^' § 469. The effect of an answer in Virginia to a bill to which the plaintiff has waived an answer under oath. As we have already shown, '^* in Virginia the plaintiff may in his bill waive an answer under oath, or may require an answer under oath only as to certain specified interrogatories,'^^ in which case, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in favor of the defendant, unless the cause be heard upon bill and answer only.^^^ Where there are two or more defendants, and they are not jointly in- terested in respect to the demand made against them, the plain- tiff may waive an answer under oath as to part of them, and not as to the other or others of the defendants.^" When an answer under oath may be waived by statute or rule of court, and especially where such unsworn answer is declared not to be evidence for the defendant, it operates as a mere pleading, simply serving to put the allegations of the plaintiff's bill in issue and the plaintiff on proof of his cause.'" If the plaintiff 350 Ante, §§ 463-465. sss Va. Code, 1904, § 3281. 351 See citations in note 349, 3^6 Mem. supra. ^^' Bulkley v. Van Wyck, 5 Paige 352 Nichols V. Heirs of Nichols, 8 Ch. (N. Y.) 536, 3 L. Ed. 819; W. Va. 174; see citations in note Morse v. Hovey, 1 Barb. Ch. (N. 349, supra. Y.) 407. 353 Ante, § 463. '^s Bickerdike v. Allen, 157 111. 95, 354 Ante, § 434. 41 N. E. 740; Dravo v. Fable, 132 §470 Equity Pkoceduee 614 desires to waive an answer under oath, as we have already- seen/^' he must do so in his original bill,^^" as he can not avoid the effect of a sworn answer by waiving such an answer in an amended bill.*" § 470. The evidence necessary to establish the allegations of the bill. In West Virginia and in Virginia when the oath to the an- swer is waived, as we have seen,*"^ the effect of the- denial of the allegations of the bill is to put the plaintiff on proof of his bill. In each state the answer, by virtue of statute,'^^ operates as a mere pleading at common law. In West Virginia any evi- dence is sufficient to sustain the bill which satisfies the court of the truth of its allegations.^^* The same rule obtains where the U. S. 487, 10 S. Ct. 170, 33 L. Ed. 426: Bartlett v. Gale, 4 Paige Ch. (N. Y.) 503, 3 L. Ed. 533; Miller v. Avery, 2 Barb. Ch. (N. Y.) 582, 5 L. Ed. 762: Clay v. Towle, 78 Me. 86, 2 Atl. 852: Peaks v. McAvey (^le.), 7 Atl. 270: Winsor v. Bailey, 53 X. H. 218; 1 Beach, Mod. Eq. Pr., §356; 1 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 737, note; Puter- baugh, Ch. PI. and Pr. (3d Ed.), 168: Merwin, Eq. and Eq. PI., 567; Millhiser & Co. v. McKinley, Range- loy & Co., 98 Va. 207, 35 S. E. 446; Ilutclicson V. Savings Bank of liioli- mond, 105 S. E. 677 (Va. 1920). Considering the effect in Virginia of an answer to a bill vphich has, by virtue of statute of that state, waived the oath thereto, in Jones v. Christian, 86 Va. 1017, 11 S. E. at ]). 989, Ricliardson, J., says: "The eiTeet of this statute is to modify the rule above stated as respects the effect of an answer, wlien such waiver is made in tlie bill. In the present case, tlie bill waived answer under oatli, the effect of wliieh is to deprive the answer of tlie defendants of tliat potentiality which, prior to the act above referred to, required the plaintiffs to furnish two wit- nesses or one witness and strong cor- roborating circumstances, in support of their bill, and by such means only to overturn the effect of the answer. Subject to such modification, in this and like cases, the rule, as above stated, remains unchanged, and now, as formerly, it is incumbent upon the plaintiff, though answer under oath be waived, to uphold the case made in his bill by competent and sufficient evidence, the answer in such ease being equivalent to a trav- erse." S50 4n, §472 Equity Pkoceduee 616 as to the other defendants it is res inter alios acta.^^^ But where the admissions of one defendant will bind another, as in case of joint interests, or fraudulent combinations, the answer s''" Phocnix V. Dey, 5 Johns. Ch. (X. Y.) 412, 3 L. Ed. 1064; Webb V. Pell, 3 Paige Ch. (N. Y.) 36S, 3 L. Ed. Ifl2; Beekman v. Gibbs, 8 Paige Ch. (N. Y.) 511, 4 L. Ed. 524; Homes v. Smoek, 1 Wash. (Va.) 389; Pettit v. Jennings, 2 Rob. (Va.) 676; Dade v. Madison, 5 Leigh (Va.) 401; Fisher v. White, 94 Va. 236, 26 S. E. 573; Wytheville Crystal lee and Dairy Co. v. Friek Co., 96 Va. 141, 30 S. E. 401. This case holds that it is a well- settled rule of equity practice that the answer of one defendant can not be read as evidence against the other, in the absence of joint inter- est, privity, fraud or collusion. The following is taken from 6 Am. and Eng. Dec. in Eq., 119, 120, con- tained in a note to the case of Roach V. Glos: "The answer of an administrator in a suit against him and others iB not evidence of the correctness of an item in his account, in a hearing be- fore a special register, as against his codefcndants who are adversely in- terested as to said item: Pearson v. Darrington, 32 Ala. 227. The answer of one defendant can not establish a partnership against another: Earle V. Art Library Pub. Co., 95 Fed. 544. In an action between partners to set- tle partnership accounts inter sese, the answer of one partner can not be used to establish the partnership or to charge another: Bevans v. Sulli- van, 4 Gill (Md.) 383; Chapin v. Coleman, 11 Pick. (Mass.) 331. When principal and agent are both defendants in a bill, admissions in the answer of the agent are not evi- dence against the principal, if the agency no longer exists: Clark v. Van Riemsdyk, 9 Cranch (U. S.) 153 ; Leeds v. Marine Insurance Co., 2 Wheat. (U. S.) 380; Rector v. Rector, 8 111. 105. The answer of a wife is not evidence against her hus- band: City Bank v. Bangs, 3 Paige Ch. (N. Y.) 36; nor that of the hus- band against the wife: Stewart v. Stone, 3 Gill & J. (Md.) 510. When husband and wife file a joint answer, it can not be read in evidence against the wife where the subject matter relates to her estate of in- heritance: Lewis v. Yale, 4 Fla. 418; contra, Dyett v. Korth American Coal Co., 20 Wend. (N. Y.) 570; and when the defendant controverts the material allegations of the bill, the failure of others to do so will not dispense with the need of proof as to him: Dickinson v. R. R. Co., 7 W. Va. 390. Still less can an an- swer be evidence against codefend- ants when the defendant answering is not a party to the issue to be, tried: Welborn v. Rogers, 24 Ga. 558; or when he is substantially a complainant, though nominally a de- fendant: Field V. Holland, 6 Cranch (U. S.) 8; Martin v. Dryden, 6 111. 187. The failure of one defendant to answer can not be used as evi- dence against a codefendant: Harri- son V. Johnson, 3 Litt. (Ky.) 286; Blight V. Banks, 6 T. B. Mon.. (Ky.) 192; Timberlake v. Cobbs, 2 J. J. Marsh. (Ky.) 136; Holloway v. Moore, 4 Sm. & M. (Miss.) 594; Dickinson v. R. E. Co., 7 W. Va. 617 The Answer §471E of one is also evidence against the other.''" The same prin- ciples govern as to the effect of an answer in favor of a co- defendant.^'^ If a bill is filed against two or more defendants and one of them, not conversant with the material matters averred in the bill, answers such bill denying its allegations, but the defendant charged with knowledge of such matters makes no answei, the answer so filed need not be overcome by the testimony of two witnesses or the testimony of one witness with strong corrobo- rating circumstances,''^ as where one of two trustees is charged 1o have had actual notice of a title adverse to that conveyed to them jointly, and the other trustee answers, denying the allega- tions of the bill, but the one charged with knowledge does not answer.''' The only effect of such an answer is to present an issue and throw the burden of proof upon the plaintiff to estab- lish the allegations of his bill."* 300. The answer of an adult co- defendant is of no effect as against an infant defendant: Watson v. God- win, 4 Md. Ch. 25 ; and the answer of a complainant to a cross-bill filed by adult defendants is not evidence against infant codefendants who ap- pear by guardian ad litem: Camp- bell V. Campbell, 1 Ind. 220. More- over, one defendant can not have a decree against a codefendant on his own answer, which tlie other had no opportunity to respond to by plead- ing and evidence: Walker v. Byer.^, 14 Ark. 246. It would seem, how- ever, that the erroneous admission of the answer of one defendant as evidence a^i^ainst another is no ground for reversing a decree, if the rights of the latter could not have been prejudiced : Halstead v. Shep- ard, 23 Ala. 558: Barraque v. Siter, Ark. 545 ; and when two adverse claimants of a fund are joined as defendants to a bill of interpleader. they occupy, as between themselves, the position of complainant and de- fendant, and the sworn denial by one of the allegations of a cross-bill filed by the other has the same effect as evidence as though contained in the answer to the original bill : Penn iliit. Life Ins. Co. v. Union Trust Co., 83 Fed. 891." 3™ Judd V. Seaver, 8 Paige Ch. (N. Y.) 548; note to Eoach v. Glos, 6 Am. and Eng. Dec. in Eq. 120, 121. 3"l Idem, 122. See Carle v. Cor- lian, 127 Va. 223, 103 S. E. 609. 372 Chapman v. Chapman, 01 Va. 397, 21 S. E. 813, 50 Am. St. Rep. 846. 373 Chapman v. Chapman, 91 Va. 397, 21 S. E. 813, 50 Am. St. Kep. 846. 374 Chapman v. Cliapnian, 91 Va. 397, 21 S. E. 813, 50 Am. St. Rep. 846; Dutilh v. Coursault, 5 Cranch C. C. 349, Fed. Cas. No. 4,206 ; Law- rence V. Lawrence, 21 N. J. Eq. 319; '§'474 Equity Procedure 618 § 473. The effect of an answer of an infant. The answer of an infant, which must always be by guardian ad litem,^''^ is only a formal, yet necessary, ^'^ pleading, and its admissions are not evidence against the infant, but the material allegations of the bill must be proved by independent testi- mony.^'" §474. The effect of an admission by the answer of facts alleged in the bill. The admission in the answer of a material fact alleged in the bill not only relieves the plaintiff of any proof of such fact,'^* but such admission is conclusive upon the defendant, so that he is precluded from denying or disputing it, either by evidence or a second answer, and he will be bound by such admission, though the actual state of facts shown by the proof be other- wise, unless he show that such admission was made through mistake.^'' But an admission which amounts to a conclusion of Pennington v. Gittings, 2 Gill & .T. will, in any manner, prejudice the (ltd.) 20S; Deimel v. Brown, 136 infant's interest, but lie may agree 111. 586, 27 X. E. 44 ; Lattomus v. to such matters as are intended only Garman, 3 Del. Ch. 232; Watson v. to facilitate a hearing of the cause. Palmer, 5 Ark. 501 ; Combs v. Bos- He may consent that a, certain desig- well, 1 Dana (Ky.) 473: 1 Daniell, nated person, possessing the requi- Ch. Pr., 846, and note thereto; 1 site qualifications, may hear the Enc. PI. and Pr., 947, and cases cause as special judge, the regular there cited. j'xlge "ot sitting." Thompson v. iT^Ante, §§ 423, 424. Buffalo Land & Coal Co., 77 W. Va. 376 Post, § 633. 782, 88 S. E. 1040. 377 Stephenson v. Stephenson, 6 37s Fleming v. Holt, 12 W. Va. Paiiie Ch. (N. Y.) 353, 3 L. Ed. 143. See an*e, § 428. lOlS; Bulkley V. Van Wyck, 5 Paige ■ 379 Shirley v. Long, 6 Rand, Ch. (X. Y.) 536, 3 L. Ed. 810: Bank '^a.) 764; Balehen v. Crawford, 1 , ' ' . ' ^ , , 1 T, K ^'*"'lf- C!''- 'N. Y.) 380, 7 L. Ed. of Alexandria v. Patton, 1 Rob. ggg. j g^^^^^ y^^^ g^ p_. ^^^^_ (Va.) 490; Holderby v. Hagan, 57 1 Daniell, Ch. PI. and Pr. (6th Am. W. Va. 341, 346, 50 S. E. 437; Glade Ed.), 837 et seq.; note to Roach v. Jlining Co. V. Harris, 65 W. Va. 152, ^'o^- ^ A™- ^nd Eng. Dec. in Eq., „ ,, „-„ ^Z-,:, ,.-, 101-104. See post, §5 534,539-541; 157, 63 S. E. 873; Childers v. Milam, Morrison v. Leach, 75 W. Va. 468, 68 W. Va. 503, 70 S. E. 118. S4 s. E. 177; Ramsey v. England. "A guardian ad litem has no au- 85 W. Va. 101, 101 S. E. 73. thority to consent to anything that 619 The Answer § 474 law is not binding and will be disregarded as mere surplus- jjgg_38o ]\Jqj, ^jjj g^jj admission made by a guardian ad litem contrary to the interests of an infant bind the infant.^*^ In order that an admission may be binding, at least the substance of the matter admitted must have been alleged in the bill.'*^ An admission in one part of an answer may be qualified by an explanation in another part of the answer.^*' 380 Glade Mining Co. v. Harris, 65 Layton, 76 W. Va. 63, 84 S. E. 1058. W. Va. 152, 63 S. E. 873. An admission by a defendant will 381 Ante, § 473. not bind a codefendant. First Nat. SS2 Halstead v. Aliff, 78 W. Va. Bank of Webster Springs v. Mc- 480, 89 S. E. 721. GraWj 85 W. Va. 298, 101 S. E. 383 Reager's Admr. v. Chappelear, 474. 104 Va. 14, 51 S. E. 170; Garten v. CHAPTER XXI THE KEPLICATION § 475. The definition and purpose of a replication in equity. § 476. The different kinds of replications. § 477. In what cases a general replication should be filed. § 478. When a special replication should be filed. § 479. How new matter contained in a plea or answer, designed as a de- fense to the bill, may be met and avoided. § 480. Efl'ect of filing a replication to an answer. § 481. Effect of an omission to file a replication to an answer. §482. When a replication may be filed. § 483. \\ hen it is not necessary to file a replication to an answer, f 484. Withdrawal of replication. § 475. The definition and purpose of a replication in equity. A replication is that part of the plaintiff's pleadings in equity "whereby the truth of the averments of an answer or plea is denied, and that of the allegations of the bill affirmed.^ While a replication is often treated as a formal written pleading,^ in the Virginias it is usual to put it in orally and to state in the decree that the answer is replied to generally, without filing a written replication, and this is regarded as sufficient, according to the practice obtaining in these states.^ The true office or purpose of a replication is to controvert the truth of the allega- iCity Bank v. Bangs, 2 Paige = Shipman, Eq. PI., 523; Story, Ch. (N". Y.) 570, 2 L. Ed. 1033; Eq. PI. (9th Ed.), § 877. Shipman, Eq. PI., 523; 1 Beach, s i Bart., Ch. Pr. (2nd Ed.), 442; Mod. Eq. Pr., §471; Merwin, Eq. Coles v. Hurt, 75 Va. 380; Poole and Eq. PI., 572; Puterbaugh, Ch, ^. Dihvorth, 26 W. Va., at pp. 586, PI. and Pr. (3rd Ed.), 200; Story, 587. It is customary for the clerk Eq. PI. (!1th Ed.), §877; Van- to note a general replication for "bibber v. Bcirne, 6 W. Va., at p. the plaintiff when the answer is ISO. See Stewart v. Conrad, 100 filed at rules. Vick v. Fcrrell, 76 Va. 128, 40 S. E. 624. . W. Va. 306, 309, 85 S. E. 549. 620 621 The Keplication § 475 tions of fact made in the plea or answer, and thus put in issue the matters of defense.* Thus, where a bill is filed to enforce a judgment lien, and the answer avers payment and a receipt of plaintiff's attorney for the amount of the judgment, a gen- eral replication to the answer puts in issue the execution of the receipt, the authority of the attorney to receive the money, and whether or not it was procured by a fraudulent combination between the judgment debtor and the attorney of the judgment creditor with the purpose to defraud such creditor.^ It is the last of the series of pleadings recognized by a court of equity, and puts the parties in a situation for the taking of proof.® But it is provided by statute in West Virgima that no decree shall be reversed for want of a replication, where the defendant has taken depositions as if there had been a replication ; ' and the same provision of law exists in Virginia, with the additional one that when it appears that there" was a full and fair hearing on the merits, and that substantial justice has been done, a decree shall not be reversed for want of a replication, although the defendant may not have taken depositions.* So, where both, parties to the cause have taken depositions, or the defendant only, or in Virginia, when it appears that there has been a full and fair hearing of the cause and substantial justice done, though no depositions have been taken, a decree will not be dis- turbed because no replication to the answer was filed.' But, 4Shipmai), Eq. PI., 98,523; Mer- Vaughn, 14 Gratt. (Va.) 131; Dalj- win, Eq. and Eq. PI., 572 ; Chalf ants ney v. Preston, 25 Gratt. (Va.) V. Martin, 25 W. Va. 394; Adams, 83S; Simmons v. Simmons, 33 Eq. (8th Ed.), 347, and note. Gratt. (Va.) 451; Jones v. Degge, eChalfants v. Martin, 25 W. Va. 84 Va. 68.5, 5 S. E. 799; Kern v. 394. Wyatt, 89 Va. 885, 17 S. E. 549; aMerwin, Eq. and Eq. PI., 572; Kirchner v. Smith, 61 W. Va. 434, Story, Eq. PI. (9th Ed.), §§880, 451, 58 S. E. 614; McCdy v. Mc- 881. Coy, 74 W. Va. 64, 81 S. E. 562, 7W. Va. Code, 1913, c. 134, §4. Ann. Cas. 1916C, 367. 8Va. Code. 1904, §3450. Of course the plaintiff takes a 9 Moore v. Wheeler, 10 W. Va., risk if he proceeds with the cause at p. 41; Richardson v. Donehoo, without relying upon a replication. 16 W. Va. 685; Chalfants v. Mar- No weight of evidence which he •tin, 25 W. Va. 394; Goddin v. may take in support of hi.", bill §476 Equity Procedure 622 according to the general equity practice, if a cause has come on for hearing after witnesses have been examined, and it is dis- covered that no replication has been put in, the court will per- mit the replication to be filed nunc pro tunc}'' § 476. The different kinds of replications. Formerly both general and special replications were in use in a court of equity to the same extent that they are now used in actions at law.^^ But the inconvenience, expense and delay incident to the use of special replications were such as to oper- ate a change in the practice of a court of equity in this respect, so that they are no longer allowed,^^ except that in West Vir- ginia they are used when the answer is in the nature of a cross- bill in which the defendant sets up a claim to affirmative re- lief.^* If the defendant sets up new matter in his answer, but ■will avail him, in the absence of a replication, provided the defend- ant does not take any depositions. McCoy V. McCoy, supra. 10 Story, Eq. PI. (9th Ed.), § 880; 1 Beach, Mod. Eq. Pr., § 479. See Vick V. Terrell, 76 W. Va. 306, 85 S. E. 549. 11 Vanbihber v. Beirne, 6 W. Va., at pp. 180, 181. When a special replication in equity was permitted, its use was occasioned when the defendant in- troduced new matter into his plea or answer, whereby it became neces- sary for the plaintiff to put in issue some additional fact on his part, in avoidance of such new matter introduced by the defendant. Such replication was in use in the time of Lord ISTottingham, who sat as Chancellor Nottingham. To a special replication a rejoinder was permit- ted, by which the defendant asserted the truth and sufficiency of his an- swer, and traversed every material part of the replication; and if the parties were not then at issue, by reason o'f some new matter dis- closed in the rejoinder, which re- quired answer, the plaintiff could file a surrejoinder, to which the defendant in his turn might file a rebutter; and in the ancient history of equity practice, the pleadings in this manner frequently extended to a Enirrejoinder and re^butter. Idem. See Mitford, PI., 321, 322; 2 Bob., (Old) Prac, 315; James v. McKer- non, 6 Johns. Ch. (N. Y.) 543, 559, 564, 4 L. Ed. 214, 215; Story, Eq. PI. (9th Ed.), §§878, 879; Lang- dell, Eq. PI. (2nd Ed.), §53. 12 Vanbibher v. Beirne, 6 W. Va. 180, 181; Sims v. Bank of Charles- ton, 8 W. Va. 274; Elliott v. Tra- hern, 35 W. Va. 634, 14 S. E. 223. isVanbibber v. Beirne, 6 W. Va. 180, 181. But such a, replication is in no sense the special replication known to chancery practice. In tei-ms of chancery practice, it is 623 The Replication § 477 simply as a mere defense to the suit, it may be put in issue by a general replication ; but if its nature is such that it must be opposed by additional new facts, as by confession and avoid- ance, this can be done only by an amendment to the bill.** § 477. In what cases a general replication should be filed. When the plaintiff desires to controvert the truth of the facts alleged in a plea or answer, designed as a mere defense to the bill, he should file a general replication thereto,*^ as a special replication in such a case is not permissible.'^ And that is mere matter of defense to the bill, to be put in issue by a gen- eral replication, which did not require the use of a cross-bill under the general rules of equity practice.'^ Thus an allega- tion of payment and set-off is a mere matter of defense, and does not require a special replication.'^ So a defense of re- coupment set up in an answer does not call for a special repli- cation, but a general replication only.'^ Likewise, affirmative allegations of an answer controverting the allegations of the bill are put in issue by a general replication.^" But by statute •essentially an answer to a cross- 12 S. E. 1106; Smith v. Turley, 32 oill. It would be more precise to W. Va. 14, 9 S. E. 46; Foutty v. designate it, in the words of the Poar, 35 W. Va. 70, 12 S. E. 1096. statute, a "special reply." W. Va. is Briggs v. Enslow, 44 W. Va. Code, 1913, c. 125, §35. But it 419, 29 S. E. 1008; Depue v. Ser- is generally called a special replica- gent, 21 W. Va. 326. tion in the decisions. it Depue v. Sergent, 21 W. Va. n See 7)os^ § 479, where this mat- 326, 345; Foutty v. Poar, 35 W. ter is considered. To the effect that Va. 70, 12 S. E. 1096; Fulmer Coal affirmative matter in an answer Co. v. Morgantown & K. R. Co., 57 which serves merely to controvert W. Va. 470, 478-479, 50 S. E. 606. the allegations of the bill is put is Hickman v. Painter, 11 W. Va. in issue by a general replication, 386. see vost, § 477. lo Foutty v. Poar, 35 W. Va. 70, isLangdell, Eq. PI. (2nd Ed.), 12 S. E. 1096. § 98; Elliott v. Trahern, 35 W. Va. 20 Seim v. O'Grady, 42 W. Va. 77, 634, 14 S. E. 223; Depue v. Sergent, 24 S. E. 994; Fulmer Coal Co. v. 21 W. Va. 326; Enoch v. Mining Morgantown & K. R. Co., 57 W. Va. Co., 23 W. Va. 314; Bee v. Burdett, 470, 50 S. E. 606; Hager v. Melton, 23 W. Va., at p. 746; Barrett v. 66 W. Va. 62, 71, 66 S. E. 13. McAllister, 35 W. Va., at p. 115, § 478 Equity Procedure 624 existing in Virginia and West Virginia^'^ providing that, where a declaration or other pleading alleges that any person made any writing, no proof of his handwriting shall be required un- less the fact is denied by affidavit with the pleading which puts it in issue, a general replication to an answer setting up an agreement of release will not put in issue the genuineness of complainant's signature thereto where there is no affidavit deny- ing the signature.^^ But a general replication to an answer settin^ T-, 1 savings, either by replication to the (N. Y.) 490, 2 L. Ed. 726; Dale p,ea, %r by an amendment to his V. McEwers, 2 Cow. (N. Y.) 118, bill. 7 L. Ed. 728. Evidence, though ^^ Briggs v. Enslow, 44 W. Va. taken, will be of no avail to the ^.f w^.^.^hT^sV "aT'-rVI'c: plaintiff unless he has made an j„ gug^ instances it is necessary, issue by filing a replication to the Miller v. Hawker, 85 W. Va. 691, answer. McCoy v. McCoy, 74 W. 102 S. E. 470. 825 The Replication § 478 "the party against whom sueh relief is prayed.^* It is now the general nile-in all jurisdictions that a special replication in equity can not be filed. ^' To determine when an answer does set up new matter constituting a claim to affirmative relief, re- quiring a special replication, which must be in writing,'" it is necessary only to ascertain whether the new matter is such as the defendant could not have the benefit of ordinarily by an answer filed in the cause before the enactment of the law au- thorizing a claim to affirmative relief in this manner,^^ and such as must, in the absence of such law, have been availed of by means of a cross-bill.'^ The answer, as already shown,'' must also pray for affirmative relief, or it will not require a special replication, the new matter in such case being treated as sur- plusage ; '^ and it must pray for such relief specifically against the plaintiff, or against the codefendants or some one or more of them, against whom affirmative relief is sought.'^ And it may require a special replication only from certain of the par- ties and not from others, and only as to part of its matter and not as to the residue.'^ As illustrative of the rule in pursuance of which it would be proper to file a special replication to an answer, we may instance a suit brought for the specific per- formance of a contract in which an answer sets up new matter as ground of defense, asking for the cancellation or rescission of the instrument sought to be specifically enforced.'' But even in such a case, if the relief could be afforded the defendant upon the usual answer under the general chancery practice, the 2sBrigga v. Enslow, 44 W. Va. 32 Moore v. Wheeler, 10 W. Va. 499, 29 S. E. 1008. 42; Smith v. Tiirley, 32 W. Va. 29Shipinan, Eq. PI., 523, 524; 1 14, 9 S. E. 46. Beach, Mod. Eq. Pr., § 472 ; Story, 33 Ante, § 449. Eq. PI. (9th Ed.), §878; Adams, 34 Middleton v. Sclby, 19 W. Va., Eq. (8th Ed.), 347, and notes. at p. 177. 30 W. Va. Code, 1913, c. 125, § 35. 35 Smith v. Turley, 32 W. Va. 14, 31 Moore v. Wheeler, 10 W. Va., 9 S. E. 46. at p. 42; Kilhreth v. Roots, 33 W. ssldem. Va. 600, II S. E. 21; Laidley v. 3^ See opinion of court in Cun- Kline, 23 W. Va. 579. nin.srliam v. Hedrick, 23 W. Va., pp. 591-593. §478 Equity Procedure 626 decree will not be reversed in the absence of a special replica- tion." So, too, where there is an answer calling for a special reply, and there is a general replication to it, and the party ssPaxton v. Paxton, 38 W. Va. 616, 18 S. E. 765. In this case Brannon, J., com- menting on the principle stated in the text, says: "These answers are purely the common answers of defense or traverse of the matter of the bill, not cross-bills. The bill alleges the execution of the bonds and deed of trust, and the sale under it, the purchase by one of the heirs for all, and thus states title of the parties entitling them to partition. The answers simply assert that the deed of trust was forged, so far as George W. Pax- ton is concerned, and procured by fraud, so far as Samples is con- cerned. This is merely matter of defense. It is not enough to call for a special reply that the answer contains- new matter, but it is only when the new matter, in its nature as applied to the case, calls for aflBrmative relief against some of the parties, and it is not simply a, matter of defense of the case made iby the plaintiff. Smith v. Turley, 32 W. Va. 14 (9 S. E. 46), and cases cited. "Now, what relief do these an- swers call for? Simply a denial ')f the partition, and dismissal of the bill. A dismissal would forever pre- clude the claim of plaintiflF to the land under that title without can- ceHation. Who would say that un- der ordinary chancery practice, be- fore the enactment of sections 35, 36, of chapter 125 of the Code, these defendants could not resist the plaintiff's suit by an ordinary answer containing the matter con- tained in these answers? No one, I assume. Then these answers are to be regarded only answers of or- dinary defense matter, and not as containing new matter calling for aflSrmative relief imder said statute. 1 think Cunningham v. Eedrick (23 W. Va. 579), and the lucid opinion by Judge Johnson, will sustain this position. It holds that before said statute, while it was proper and in accordance with strict rules of pleading when a bill to enforce a vendor's lien was filed, if the de- fendant wished to rescind the con- tract because the defendant was of unsound mind, or that it was pro- cured by fraud, to file a cross-bill, yet where the record showed that relief could as well be given upon bill, answer and proofs as if a cross- bill had been filed, its filing would be dispensed with, as it would be mere formality to file it; and that, under the operation of said statute, where the answer contains material allegations constituting a claim for affirmative relief, and no reply in writing is filed, but only a general replication, and the cause has been heard on the pleadings thus made and the proofs, it the record shows it is not such a case as would, be- fore tlie statute, demand a cross-bill to give the defendant the relief sought, the decree will not be re- versed because no reply in writing was filed. "In that ease Hodrick purchased land, gave her bond, and a deed was made to her. She answered that she 627 The Eeplication H79 filing it has gone on and taken depositions as if there were a special reply denying it, and there has been a full hearing of the merits as if there had been such special reply, a decree will not be reversed for want of such special reply.'' §479. How new matter contained in a plea or answer, de- signed as a defense to the bill, may be met and avoided. If new matter is set up in a plea or answer, the truth of which the plaintiff can not successfully controvert by a denial by means of a general replication, and the plaintiff has not antici- pated such defense in the charging part of his bill,'"' so as to destroy the force of such new matter so pleaded as a defense to the suit, the only way in which the plaintiff can bring into the cause any fact or ground relied on by him to meet and avoid the effect of such new matter, is by an amendment to his bill,''^ or by a supplemental bill.^- Thus, if the defendant pleads was incompetent from imbecility of mind to contract, and tliat tlie con- tract liad been procured by fraud, and resisted tlie enforcement of the contract for that cause, and prayed rescission as in tliis ease. If any- thing could give the cast to the an- swer of one calling for affirmative relief, it would be the prayer for rescission. But in the Cunningham- Hedrick case it was held that such relief could be given on an ordinary answer, and the answer did not call for a reply in writing, and the case could not be reversed for want of it. Mettert v. Jlagan, 18 Gratt. 231, was a bill to recover an interest in an estate, and an answer was filed re- sisting relief on the ground that the party was incapable from drink of making the deed ; that it was pro- cured by fraud; and asking that it be declared null and void. That is just so in this case. It was held that, tliough strictly a cross-bill would have been proper, yet the an- swer might for that purpose be treated as such and rescission grant- ed. So tlie cases settle that in such case relief may be refused, and can- cellation made on answer, and a cross-bill is not necessary. Now, we treat an answer as one under the statute calling for affirmative relief only where a cross-bill must be filed according to the chancery practice to get the relief sought in the an- swer, not to eases where it can be given on the answer. Hence no re- ply was necessary. See, also, Bart., Ch. Pr., 304: Kendrick v. Whitney, 28 Gratt. 655." 30 Long V. Ferine, 41 W. Va. 314, 23 S. E. 611. io Ante, § 107. 41 Enoch v. Mining and Petroleum Co., 23 W. Va. 314, 317; Dower v. Seeds, 28 \V. Va. 113, 128, 129, 57 Am. Rep. 646; Adams, Eq. (8th Ed.), 347, and note; Puterbaugh, Ch. PI. and Pr. (3d Ed.), 209; Ward V. Ward, 50 W. Va. 517, 40 S. E. 472. *- Enoch V. Mining and Petroleum Co.. 23 W. Va. 314. § 480 Equity Procedure 628 the statute of limitations to the demand made in the bill and the plaintiff would rely on an obstruction to the prosecution of his claim, so as to take the case out of the operation of the statute of limitations, he must do so by an amendment to the bill made with leave of the court, for he can not do so by means of a special replication." And in any case, if an answer or plea makes it necessary that the particulars of a transaction should be brought into the record, or should be shown by the plaintiff in aid of his case, or to sustain his claim to relief, he must do so by an amendment or supplement to his bill.''* But such amended bill must be seasonably filed." The plaintiff can not wait until the cause has been submitted and then propose to file such amended bill.** It must be actually tendered before the submission of the cause.*' § 480. Effect of filing a replication to an answer. When the plaintiff files a replication to the answer, -he admits that it is sufficient as to the discovery it makes, and if to a plea that it is sufficient in form and substance to constitute a defense to the bill.^^ The only question open as to the plea is its truth." But while a replication to an answer is a waiver of any mere defect as to its form,^" it does not cure defects as to its substance." A replication is a waiver of the plaintiff's right to except to the answer for insufficiency.^^ But it may 43 Enoch V. Mining and Petroleum ■'o Idem. Co., 23 W. Va. 314. ^i Idem. «Clialfant v. Martin, 25 W. Va. 4S Sliipman, Eq. PI,, .-)24, .525; 1 394; Enoch v. Mining Co., 23 W. Va. Beach, Mod. Eq. Pr., §§ 474, 475. 314; Bee \\ Burdett, 23 W, Va. at *» Shipman, Eq. PL, 525; 1 Beacli, p. 746; 1 Beach, Mod. Eq. Pr., § 472; Mod. Eq. Pr., § 47.5. See ante, § 417. Adams, Eq, (8th Ed.), 347, and 50 i Beach, Mod. Eq. Pr., § 447. note; Puterbaugh, Ch. PI. and Pr. =11 Beach, Mod. Eq. Pr., §474, (3d Ed.), 200; 18 Enc. PI. and Pr., citing Everts v. Agnes, 4 Wis. 343; 681. See cases cited under § 476. Shipman, Eq. PI., 525. 45 Ward V. Ward, 50 W. Va, 517, "Story, Eq. PI. (9th Ed.), §877; 40 S. E. 472. See ante, § 364. Snyder v. Martin, 17 W. Va. at pp. 2.82, 283: ante, § 444. 629 Thk Replication § 481 still be objected to for scandal, and, it would seem, for im- pertinence.^* § 481. Effect of an omission to file a replication to an answer. It is advisable, as a rule, always to make replication to an answer, as the truth of the averments of an answer, upon the hearing of the cause, is admitted in the absence of a replica- tion,^* although the averments are aifirmative in character,^^ oi* not responsive to the bill.^^ But where an answer is contra- dicted by other matters in the cause introduced or relied on by the defendant,^' or where the defendant has taken testimony in the cause,'^ the omission to file a replication does not admit the truth of the averments contained in the answer.^' If an an- swer contains new matter constituting a claim to affirmative relief and a proper prayer for relief, as hereinbefore shown,^* all the material allegations of such answer setting up such new matter, not controverted by a special reply in writing, are, for the purposes of the suit, taken as true, and no proof of them is required.'-"^ If a special replication in equity is filed to an answer when a general replication is proper, it will, for purposes of the suit, be treated as a general replication, and have the effect of a general replication.^^ A defendant is not bound to notice new S3 Snyder v. JIaitin, 17 W. Va. 5o Bierne v. Ray, 37 W. Va. 571, 283, citing 2 Eob. (Old) Prac. 313; 49 S. E. 129; Snyder v. Martin, 17 1 Beach, Mod. Eq. Pr., § 407. W. Va. 276, 41 Am. Rep. 670. 5* Coal River Navigation Co. v. st Coal River Nav. Co. v. Webb, 3 Webb, 3 W. Va. 438 ; Martin v. Rel- W. Va. 438. lehan, 3 W. Va. 480; Copeland v. ss^nte, §475. McCue, 5 W. Va. 264: Cleggett v. 69 See the authorities under tlie Kittle, 6 W. Va. 452; Forqueran "^xt two preceding citations. T^ ,, ^ Ti- TT n^ o J ^<> Ante, §478. V. Donnally, 7 \^ . Va. 114; Snyder ^l W Va. Code, 1913, c. 125, § 35; V. Martin, 17 W. Va. 276, 41 Am. N^^lon v. Wade, 43 W. Va. 283, 27 Rep 670; Brown v. Click, 65 W. Va. S. E. 244; Wilt v. Huffman, 46 W. 459 64 S E 613- McCoy v McCov, ^a. 473. 33 S. E. 279; Miller v. 40J, b4 t,. it. 01.5. .^iC.,Oy v. iVlCV,Oy, ^^^^. gg ^_ y^_ ggj 102 S. E. 74 W. Va. 64, SI S. E. 502, Ann. €as. 1916C, 367. 55 Wilt v. Huffman, 46 W. Va. 473, „„ J, g 279 'I'ed also, tlie special replication may 470. €as. 1916C, 367. 62 1 Beach, Mod. Eq. Pr., §473. 55 Wilt v. Huffman, 46 W. Va. 473, Or, if a general replication has been § 482 Equity Procedure 630 matter set up in the replication, nor is he affected by it,*' "A special replication which sets up in reply to a plea new matter and matter accruing since the filing of the bill will be stricken out on motion, or a decree thereon may be reversed." ^* § 482. When a replication may be filed. It is provided by statute in Virginia ^^ and "West Virginia,'^ that a cause may be set for hearing on the answer, or upon a general replication thereto, as the plaintiff may prefer. Regu- larly, it would see that if the answer is filed at rules, and the plaintiff desires to file a replication to it, he should do so before he sets the cause for hearing, or if it is filed in term time, that he should ute his replication at the time the answer is filed (un- less he wishes to except to the answer) , and this is usual in practice. Bnt there is no fixed rule in the Virginias as to the time when a replication may be filed.*' It is decided in West Virginia^^ that "when a cause is set for hearing by the plain- tiff, and heard on bill, answer and exhibits, and the court di- rects a dismissal of the bill, the plaintiff can not as a matter of right reply to the answer." In Virginia, a decree was made in the court below when there was no replication to the answer of D., and after an appeal from the decree by D. was perfected, the court, on motion of the plaintiffs, made an order permitting the plaintiffs to file the replication nunc pro tunc.^^ be disregarded as surplusage. Dower would seem that it may be filed at V. Seeds, 28 W. Va. 113, 57 Am. Rep. any time before a hearing on the 646; Wick v. Dawson, 48 \Y. Va. final merits of the cause. Vick v. 469, 37 S. E. 639. Ferrell, 76 W. Va. 306, 300, 85 S. E. 63 1 Beach, Jlod. Eq. Pr., § 473. 549; 1 Whitehouse, Eq. Pr., § 302. BiMem. 68 Snyder v. Martin, 17 W. Va. 65 Va. Code, 1904, § 3291. 276, 41 Am. Rep. 670. But see Vick »6\V. Va. Code, 1913, c. 125, §50. v. Ferrell, 76 W. Va. 306, 85 S. E. 6' Snyder v. Martin, 17 W. Va. 549. 276, 41 Am. Rep. 670; Dabney v. »» Dubncy v. Preston, 25 Gratt. Pre'ston, 25 Ghratt. (Va.) 838. It (Va.) 838. 631 The Replication § 484 § 483. When it is not necessary to file a replication to an answer. Where an answer is filed which is responsive to the bill, and the answer admits the allegations of the bill, the plaintiff can in safety set the cause for hearing on bill and answer without replication.'"' "Where an answer contains mere litigious and immaterial allegations, not presenting a substantial issue for the consideration of the court, no replication to it is necessary.''^ Thus, where the maker of a note given for purchase money, in defense of a bill filed by the assignee thereof, claims that the assignor, being the original holder, has not parted with his property therein, but that the assignment was made for collec- tion alone, and such assignor, being a party defendant, answers, denying any interest in such note, such answer will be regarded as a solemn admission of record conclusively barring any right the assignor may have in such note so far as such maker is con- cerned ; and it is error to allow such maker to put such admis- sion in issue by filing a special replication to such answer, as it is wholly immaterial."' But in the instance first above men- tioned, the plaintiff .should look attentively to the answer to see that the effect of the defendant's admissions is not avoided by any new matter set up in the answer.^' It is said not to be necessary to file a replication to a plea of the pendency of an- other suit,'* nor to a plea of disclaimer." § 484. Withdrawal of replication. If a plaintiff has filed a replication to an answer and he wishes to withdraw it for the purpose of submitting the cause 70 Snyder v. Martin, 17 W. Va. 73 Story, Eq. PI. (9th Ed.), § 877; 276, 41 Am. Rep. 070; Wright v. Snyder v, Martin, 17 W. Va. 276, Pittman, 73 W. Va. SI, 79 S. E. 2S3, 41 Am. Rep. 670. 1091. " 18 Ene. PI. and Pr., 682, citing 71 Brigg3 V. Enslow, 44 W. Va. Jones v. Segueira, 1 Pliil. 82; Allen 499, 29 S. E. 1008. v. Allen, 3 Tenn. Ch. 145. 72 Briggs V. Enslow, 44 W. Va. ^^ Idem, citing Williams v. Long- 499, 29 S. E. 1008. fellow, 3 Atk. 5R2; Ford v. Chester- feld, 16 Beav. 520. § 484 Equity Procedure 632 on bill and answer only, or for the purpose of amending his bill, or where it has been inadvertently filed, the court will usu- ally permit its withdrawal.'* But leave to withdraw the repli- cation for the purpose of excepting to the answer is not allowed €xcept for special cause clearly shown.''' 76 Brown V. Eicketta, 2 Johns. Ch. baugh, Ch. PI. and Pr. (Sd Ed.), (N. Y.) 425, 1 L. Ed. 435; Greene §211; 1 Whitehouse, Eq. Pr., §30.3. V. Harris, 9 R. I. 401; Hughes v. "i Beach, Mod. Eq. Pr., §477; Blake, 6 Wheat. ( U. S. ) 453 ; 1 1 Whitehouse, Eq. Pr., § 303. Beach, Mod. Eq. Pr., § 477 ; Puter- CHAPTER XXII CONTINUANCE S 485. As to continuances in equity. S 486. As to right of a defendant to a continuance upon filing his answer. § 487. Continuance by new party against whom suit has been revived. § 488. Continuance of a case when before a commissioner. 1 489. Continuance because of the amendment of the pleadings. § 490. The matter of a continuance rests in the sound discretion of the court. §491. Continuance to procure evidence. § 492. Admissions of fact to avoid continuance. § 493. Continuance because of mistake of parties or their counsel. § 494. Inability of a party to prepare his case for a hearing. § 495. Failure to give security for costs. § 496. Absence of counsel as a ground for continuance. § 497. Continuance to enable a party to take deposition. § 498. Diligence to be shown in order to obtain a continuance. § 499. Newly discovered evidence as a ground of continuance. § 500. The application for a continuance — Necessity for and how made. § 501. The effect of an order of continuance. § 485. As to continuances in equity. The principles governing continuances^ in a court of equity, as shown by the decisions, are, in many respects, quite the same as those which obtain in a court of law.^ It has heretofore been stated * that when the replication is filed the parties are at issue, and the ease is ready for the proof; but it often occurs 1 When a cause is postponed, either - DiUard v. Dillard, 2 Va. Dec. 28, until a later day in the same term, 21 S. E. 669; Rosset v. Greer, 3 W. or until the next term, it is said to Va. 1 : Buster v. Holland, 27 W. Va. be and is, in legal contemplation, 510; Trevelyan v. Lofft, 83 Va. 141, continued. Morris v. State, 104 Ind. 1 S. E. 902 ; Radford v. Fowlkes, 85 457, 4 N. E. 148, citing Bickn., Grim. Va. 820, 8 S. E. 817. Pr., 217; Moore, Grim. Law, §289; 3 Ante, §475. Hubbard v. State, 7 Ind. 160. 633. § 486 Equity Procedure 634 that there is nothing done by the defendant until the convening of the court, when the answer is then filed and the pleadings are fully made up. "When the plaintiff has regularly filed his bill at rules and matured the cause for a hearing, and the de- fendant afterwards files his answer in term time, and the plain- tiff desires time to reply to the answer and take proof and prepare his case for hearing, he is entitled to a continuance of the cause as a matter of right, upon a motion made for that purpose.* § 486. As to right of a defendant to a continuance upon filing his answer. While a defendant may file his answer at any time before final decree, as we have seen,^ he can not, upon the filing of his answer, have the case continued, except for good cause, to be shown by affidavit filed in the papers for that purpose.^ A de- fendant who has time and opportunity to take his evidence after the filing of the bill, before the case is called for hearing in court, or before the coming on of the term of the court at which the case is heard, can not file his answer at the hearing or at the term at which the cause may be heard, and then con- tinue or delay the case to procure evidence in support of his answer.^ But if the defendant upon filing his answer offer good ground for delaying the hearing of the cause, it ought 4 Dillard v. Dillard, 2 Va. Dec. 28, W. Va. 645; Reynolds v. The Bank, n S. E. 669; Bowles v. Woodson, 6 6 Gratt. (Va.) 174; Bronson v. Gratt. (Va.) 78; The M. & F. Bank Vauglian, 44 W. Va. 406, 29 S. E. V. Mathews, 3 W. Va. 26; MeLaugli- 1022; Gardner v. Landcraft, 6 W. lin V. Sayers, 72 W. Va. 304, 78 S. Va. 40; McLaughlin v. Sayers, 72 E. 335. W. Va. 364, 78 S. E. 3.'55; Waggy v. ^ Ante, § 445. \Vaggy,'77 W. Va. 144, 87 S. E. 178. W. Va. Code, 1913, c. 125, §53. "Such good cause does not consist The same provision by statute is simply in showing that a continu- made in Virginia, except that it does ance is necessary in order to enable not prescribe that the "good cause" the defendant to take his proof, and shall be shown by affidavit. Va. that it was not possible for him to Code, 1904, § 3275. have taken it before the hearing, ' Bowles v. Woodson, 6 Gratt. even if he had complied with the (Va. ) 78; Wyatt v. Thompson, 10 rule [to answer]. But the facts 635 Continuance §486 upon his motion to be continued. Thus, as stated by Mr. Bar- ton, "where the suit was to set aside a deed of conveyance by the husband to his wife, and to subject the land to the pay- ment of the husband's debts, and the suit was allowed to go on for a very considerable period, taking accounts, etc., without an answer, upon application being made by the married woman to file her answer, it was allowed ; but the court below refused to delay the cause on that account, and went on to decree that the conveyance be set aside and the property sold. Upon ap- peal the case was reversed, the court of appeals stating that the answer set up a case, which, if true, would constitute a good defense to the bill, and that the married woman alleged fur- ther, as a reason why her defense was not made at an earlier day, that her counsel had prepared for her an answer sup- ported by incontrovertible documentary evidence sustaining her defense ; that the answer miscarried, and did not reach her, so that the cause had been submitted at a previous term of the averred in the affidavit must also he such as will expurgate the defendant of his default, by showing that he was prevented from complying with the court's rule by fraud, mistake, accident, surprise, or some adven- titious circumstance beyond his con- trol." Bartrug v. Edgell, 80 W. Va. 220, 92 S. E. 438. The fact that a defendant has re- lied upon a dem'jrrer to the bill, anil flies his answer promptly upon the overruling of the demurrer, will not relieve him from the necessity of showing cause for a continuance. McLaughlin v. Savers, supra. Of course, the filing of the answer usu- ally casts the burden of proof upon the plaintiff, and the plaintiff, not the defendant, desires a continuance. "True also, defendant tendered his answer at tlie first term after the cause was matured and set for hear- ing; but when he tendered it he was in default. Tlie bill had been taken for confessed as to him. That fact convicted him of dilatoriness. He might have appeared at rules and aided the progress of the cause, or might have taken such stops at rules as would have prevented the default of a bill taken for confessed. It was to provide against delay by reason of any dilatoriness on the part of a defendant that the statute we have quoted was enacted; That statute virtually says that a defendant by affidavit filed in the papers must purge himself of all apparent neg- lect before he can continue the cause on the filing of an answer in term. And that statute applies as well to the first term of court as to any other. It does not except the first term. If, as in this case, the bill is one that does not require the taking of depositions to prove it, a defend- ant when summoned to answer it [22] §486 Equity Procedure 63t-, court before her answer could be filed ; that she was a married woman, unaccustomed to business, and knew nothing of the im- portance of appearing in the cause to protect herself and her children. Under all these circumstances the court of appeals thought that the trial of the cause should have been delayed, and time allowed for her to support her answer by proof. ' ' * If a defendant, upon filing his answer, desires time in which to take proof in support of such answer, he must move the must take notice that a decree may be insisted upon at the first term, and must use all reasonable dili- gence in the making of his defense. Otherwise he may not be able to ac- quit himself and show good cause for a continuance if he needs more time when the first term comes on. Of course, in the majority of in- stances, an answer filed in term puts the plaintiff to proof and brings on a continuance to which plaintiff id then himself entitled. Thus chan- cery causes usually go over the first term for the taking of proof. And it is this that has caused an impression with some that in all cases a defend- ant summoned to rules may wait until the term to put in his defense and rather as of right carry the case over. But if the plaintiff is in a position to ask a decree at the first term, let the defendant beware. If the defendant is in default, he can not get further time without the affidavit required by the statute.'' McLaughlin v. Savers, supra. Never- theless, the fact tliat tlie defendant has honestly relied upon his demur- rer, while not sufficient by itself, may aid him as an evidence of good faith on his part. Moore v. Moore, 72 W. Va. 260, 78 S. E. 99. But in divorce cases, owing to the fact that the state has an interest in seeing the real merits of the case tested, the rule as to granting a con- tinuance for the purpose of taking evidence is more liberal. Clayton v. Clayton, 71 W. Va. 656, 77 S. E. 137. 8 1 Bart., Ch. Pr. (2d Ed.), 405. In tlie following case, late at night on tlie last day of the term of court, the defendant's demurrer to the bill was overruled, his answer was filed, his motion for a continu- ance was overruled, and a final de- cree was entered against him. The court held that, under the following facts .stated in liis affidavit, he was entitled to a continuance. "It can not be said, under the cir- cumstances detailed, that defendant purposely attempted to delay the final determination of the litigation. He could with propriety, and per- haps did, rely upon the demurrer to the bill. He did not know, and could not anticipate, the court's ruling tliereon. Immediately thereafter his answer was filed. Of course, the statute, § r,S, ch. 125, Code 1906, provides tliat 'at any time before final decree a defendant may file his answer, but a cause sliall not be sent to the rules or contnared because an answer is filed in it, unless good cause be shown by affidavit filed with the papers therefor.' The evident purpose of the statute was and is to speed all litigated causes; and this 637 Continuance §487 court to continue the cause for that purpose, and accompany his motion with a sufficient affidavit,' as it is not error to pro- ceed with a hearing where no motion is made nor cause shown for a continuance.^" § 487. Continuance by new party against whom suit has been revived. If a party has been proceeded against by writ of scire facias, for the purpose of revivor, and he has thus been made a party to the suit, such new party may have a continuance of the cause as matter of right, upon his motion, at the term of the court at purpose can be impeded only for cause shown satisfying the con- science of the court. "In his affidavit, the defendant says he was advised by counsel, be- fore beginning of tlie term, that the local custom and practice with re- spect to controverted chancery causes was to answer at the first term and prepare for submission on the merits by the succeeding term, and that he relied on this informa- tion; also that, if the cause is con- tinued, lie can, as he verily believes, produce and obtain testimony the effect of which would in law entitle him to a favorable decision: that be had no knowledge tlie cause would lie pressed for hearing at the first term; that his chief counsel was and continued absent from the state dur- ing the talcing of plaintiff's deposi- tions, and that he only secured other counsel to appear and cross-examine plaintiff's witnesses. He relies on these facts in support of his motion. In the ease of Myers V. Trice, 86 Va. 83.'), 842, it is said : 'A continuance may be granted not only for the ab- sence of a party or his counsel from unavoidable circumstances, but for honest mistake, or anything amount- ing to a, serious surprise; and if there is no sufficient reason to in- duce the belief that the alleged ground of the motion is feigned a continuance skould be granted, rather than to seriously imperil the just determination of the cause by refusing it.' From the character of the case itself, the proceedings there- in heretofore detailed, and defend- ant's affidavit, not in anywise con- troverted, the conclusion seems fair and reasonable that defendant was entitled to a continuance of the cause, and that it was error in the circuit court to deny his motion, and at the same time, in a final de- cree as upon the merits, grant the relief prayed for in the bill." Moore V. Moore, 72 W. Va. 200, 78 S. E. 99. 9 Bronson v. Vaughan, 44 W. Va. 406, 20 S. E. 1022: Gardner v. Land- craft, 6 W. Va. 40: McLaughlin v Sayers, 72 W. Va. 364, 78 S. E. 385; Waggy V. Waggv. 77 W. Va. 144, 87 S. E. 178; Bartrug v. Edgell, 80 W. Va. 220, 02 S. E. 438; Campbell V. Lynch, 106 S. E. 860 (W. Va 1921). 10 Aiken v. Connelly, 2 Va. Dee. 383, 24 S. E. 900. See cases cited in preceding note. §489 Equity Procedure 638 which the order reviving the suit is entered." But if the suit he revived at rules, a continuance at a subsequent term after revivor at rules will not he granted as a matter of right.*^ § 488. Continuance of a case when before a commissioner. If a cause is pending before a commissioner and a party has had ample opportunity to present his case to the commissioner, it is not error for the commissioner to refuse a continuance to enable such party to come before the commissioner to produce his evidence in the suit.^' But a commissioner in -chancery has great latitude of discretion as to granting continuances of pro- ceedings before him, and the court whose order he is executing will not overrule his action in this respect unless it be plainly § 489. Continuance because of the amendment of the plead- ings. Where either party to a cause makes a material amendment to his pleading which requires time to enable the opposite party to meet the new status of the case as thus made, a continuance ought to be allowed. ^^ But such continuance will be granted only upon motion of the party against whom such amendment 11 Garrison v. Myers, 12 W. Va. Bozarth, 59 Xeb. 244, SO N. W. Sll; 335; Chew v. Hoe, 4 H. & M. (Va.) Amos v. Stockert, 47 W. Va. 109, 489; Stearns v. Riohmond Paper 34 S. E. 821; Chicago & N. W. R. Mfg. Co., 86 Va. 1034, 11 S. E. 1057. Co. v. Davis, 78 111. App. 58; Koen 12 Stearns v. Richmond Paper Mfg. v. Fairmont Brewing Co., 69 W. Va. Co., 86 Va. 1034, 11 S. E. 10.37. 94, 70 S. E. 1098; Adams v. Adams. laDillard i. Dillard, 77 Va. 824, 79 W. Va. 546, 92 S. E. 463; Phenix 825; Third Nat. Banl-: v. National Fire Ins. Co. v. Virginia- Western Bank, 58 U. S. App. 148, 30 C. C. A. Power Co., 81 W. Va. 208, 94 S. E. 346, 86 Fed. 852. 372; Dean v. Dean, 122 Va. 513, 95 14 Fant V. Miller, 17 Gratt. (Va.) S. E. 431. 187. See also, Atwood v. Shenan- The majority of the eases cited doah Val. R. Co., X5 Va. 9C6, 9 R. under this section are cases at com- j; 74g mon law, but the principles enunci- 1-^ Central R., etc., Co. v. .Jackson, ated in them undoubtedly apply in 94 Ga. 640, 21 S. E. 845; Dunn v. equity with equal force. 639 Continuance § 490 operates.** The test of the right to continue in such case is the surprise to the opposite party ; *^ so that if the amendment can not so operate, a continuance ought not to be granted. '^^ Nor will a continuance be granted when the amendment is a formal one, not affecting the cause of action, and which can not operate to the prejudice of the opposite party." It is held that when an amendment has been ma,de to pleadings, the opposite party is not entitled to a continuance when he fails to show that he is less prepared for a trial or hearing of the cause than he would have been had such amendment not been made.^" Where errors committed in the pleadings at rules have been corrected by the court in term time so as to permit the plaintiff to plead anew in court, such correction gives the opposite party a continuance as a matter of right, if demanded.^"^ § 490. The matter of a continuance rests in the sound discre- tion of the court. Under all circumstances and upon any ground, the matter of continuing a cause rests in the sound discretion of the court; and unless it is clearly apparent that such discretion has been abused, the action of the court in overruling a motion to con- tinue a cause will not be disturbed.^^ And if it is desired to have the action of the trial court on a motion for a continuance reviewed on appeal, the ground upon which the motion is based ic Taylor v. Cox, 32 W. Va. 148, 111. App. 378; Railroad Co. v. Jack- 158, 9 W. Va. 70; Dean v. Dean, 9.5 son, 86 Ga. 676, 13 S. E. 109; Bank S. E. 431 (W. Va. 1918); Cross v. of Ravenswood v. Hamilton, 43 W. Cross, 56 W. Va. 185 49 S. E. 129. Va. 75, 27 S. E. 296; Adams v. Ad- iT Dunn V. Bozarth, 59 Neb. 24-t, ams, 79 W. Va. 546, 92 S. E. 463. 80 N. W. 811; Amos v. Stockert, 47 2" Atlanta Land and Loan Co. v. W. Va. 109, 34 S. E. 821; Atlanta Haile, 106 Ga. 498, 32 S. E. 606. Land and Loan Co. v. Haile, 106 Ga. 21 Soutliall v. The Exchange Bank 498, 32 S. E. 606; Dean v. Dean, 95 of Va., 12 Graft. (Va.) 312. S. E. 431 (W. Va. 1918). 22 Amos v. Stockert, 47 W. Va. Ibidem; Alderson v. Kanawha 109, 34 S. E. 821; Harman v. Howe, Coal Co., 12 W. Va. 526; Phenix 27 Graft. (Va.) 676; Carter v. Fire Ins. Co. v. Virginia- Western Wharton, 82 Va. 264; Clinch River Power Co., 94 S. E. 372 (Va. 1917). Mineral Co. v. Harrison, 91 Va. 122, 19 Calumet Land Co. v. Perry, 86 21 S. E. 660; Davis v. Walker, 7 W. § 491 Equity Procedure 640 must appear in the record.^' But if the court, in the exercise of its discretion, require a party to go into the trial or hearing of a cause when it appears that he was entitled to a continu- ance, the judgment or decree rendered against him will be re- versed by an appellate court.^^ § 491. Continuance to procure evidence. Inasmuch as evidence in chancery in many jurisdictions, as in Virginia and West Virginia, for instance, is brought into the court by means of depositions,^^ and as depositions can be taken in the Virginias at any time and anywhere after the bill has been filed, ^^ the continuance of a cause to enable a party to take proof must necessarily depend upon the question whether it could have been procured by taking the deposition or deposi- tions, by the use of due diligence, before the case is called for hearing;^'' and in cases of this character the courts must be governed by the varying facts in each particular case.^* The afSdavit in such a case ought to show the name of the witness whose evidence is desired, ^^ that the evidence of such witness is material,^" that the party asking for the continuance can not prove the same facts by any other witness, and that he can not Va. 447; Riddle v. McGinnis, 22 W. 2= Shipman, Eq. PI., 131; 1 Daniell, Va. 253; Smith v. Knight, 14 W. Va. Ch. PI. and Pr. (6th Am. Ed.), 836, 749; Marmot v. Arcliibald, 37 W. and notes; Adams, Eq. (8th Ed.), Va. 778, 17 S. E. at p. 301 ; Fulmer 365, and note 4. Coal Co. V. IVIorgantown & K. R. Co., 2d Buster v. Holland, 27 W. Va. 57 W. Va. 470, 475, 50 S. E. 606; at p. 535; Fulmer Coal Co. v. Miller v. Mitchell, 58 W. Va. 431, Morgantown & K. R. Co., 57 W. Va. 52 S. E. 478; Cook v. Cook, 63 W. 470, 475, 50 S. E. 606. Va. 413, 417, 60 S. E. 349;'McDer- 2^ See same citations. mott V. Fentress Gas Co., 82 W. Va. -^ See same citations. 230, 95 S. E. 841. 29 Hurd v. Corn, 5 Leigh (Va.) 23 Clinch River Mineral Co. v. 511; Buster v. Holland, 27 W. Va. Harrison, 91 Va. 122, 21 S. E. 660. 535; Fulmer Coal Co. v. Morgan- 24 Marmet Co. v. Archibald, 37 W. town & K. R. Co., 57 W. Va. 470, Va. 778, 17 S. E. 301; Yokum v. 475. .50 S. E. 606. Stalnaker, 59 W. Va. 677, 53 S. E. so Wilson v. Kochnlein, 1 W. Va. 562; Cook v. Cook, 63 W. Va. 413, 145; Tompkins v. Burgess, 2 VV. 60 S. E. 349. Va. 1S7; Nash v. Upper Appomat- 641 Continuance §491 safely have the cause heard in the absence of such evidence,'* and that he has used due diligence to procure the deposition of such witness, setting forth the facts constituting such dili- gence.'^ And if by reason of the situation or condition of the case it would be inequitable to compel a party to submit his cause for hearing, a continuance ought to be granted.'' Thus, in an action by the personal representative of an insured against the insurance company and an assignee of the policy to adjudi- cate all rights, it was error to deny the company a continuance where a vacation decree had been entered appointing a receiver to take possession of the policy and sue thereon at law, and the company, expecting a separate suit, had not prepared its de- fense in the suit in equity.'* tox Co., 5 Gratt. (Va.) 332; Carter V. Wharton, 82 Va. at p. 267; Myers v. Trice, 86 Va. 835, 11 S. E. 428; Dimmey v. Railroad Co., 27 W. Va. 32; Fulmer Coal Co. v. Morgantown & K. R. Co., 57 W. Va. 470, 50 S. E. 606; Gulland v. Giilland, 62 W. Va. 671, 59 S. E. 012. 31 Wilson V. Koclmlein, 1 W. Va. 145; Tompkins v. Burgess, 2 W. Va. 187; Dimmey v. Railroad Co., 27 W. Va. 32 ; Fulmer Coal Co. v. Morgan- town & K. R. Co., 57 W. Va. 470, 475, 50 S. E. 606. 32 Tompkins v. Burgess, 2 W. Va. 187; Carter v. Wharton, 82 Va. 267; Dimmey v. Railroad Co., 27 W. Va. 32; Fulmer Coal Co. v. Morgantown & K. R. Co., 57 W. Va. 470, 475, 50 S. E. 606. 33 N. y. Life Ins. Co. v. Davis, 94 Va. 641, 26 S. E. 941. 34 Mem. See ante, § 490, note 24 and cases cited. "Though a, cause may have been submitted and considered, and a decree indicated, but before final entry of the decree the court is of opinion that through inadvertence under a misapprehension of the law, the issues involved have not been sufBciently or properly developed by the evidence to enable the court to do justice between the parties, it may without committing reversible error continue the cause with leave to the parties to take further testi- mony." Schwenck v. Hess, 84 W. Va. Ill, 99 S. E. 255. "Moreover, it is not only within the discretion, but frequently it is the duty of the court seeing that a ease has not been properly developed by the evidence to enable it to do justice between the parties, and it appears tliat one or both of them have through inadvertence under a misapprehension of the law failed properly to develop the facts upon which their rights depend, to give the opportunity to do so; indeed it has been regarded reversible error not to pursue this course. Cook v. Raleigh Lumber Co., 74 W. Va. 503, 82 S. E. 327; La Belle Iron Works V. Quarter Savings Bank, 74 W. Va. 569, 82 S. E. 614; Peabody Ins. § 493 Equity Procedure 642 § 492. Admissions of fact to avoid continuance. In some jnrisriietionR, by virtue of statute, motions for con- tinuances may be defeated by admitting the facts which it is shown by affidavit the party will be able to prove by the absent witness.'^ Where a party concedes the truth of the testimony of a wit- ness obtained in this manner, evidence is not admissible to show that it was untrue, or that the witness has made contradictory statements.'" And where affidavits have been read as evidence bj"^ consent, they are not admissible as evidence at a subsequent term or upon another trial of the eause.'^ §493. Continuance because of mistake of parties or their counsel. It is laid down by reputable authority that if it appears that a cause will suffer from the honest mistake of the party or his counsel, if the cause is required to be proceeded with, a con- tinuance ought to be granted.'^ But the mistaken or erroneous advice of counsel not to prepare for trial is no ground for a continuance. '^ It is decided by the Court of Appeals of Vir- ginia, that for the honest mistake of a party or his counsel, or anything amounting to a serious surprise, a continuance ought to be granted ; but that the application for a continuance in Co. V. Wilson, 29 W. Va. .'528, 2 made will control the scope of the S. E. 888. Wlierefore we are un- admission. Idem, 4S.5. able to find reversible error in the ^"4 Enc. PI. and Pr., 870; 5 decree on tlie ground of the eon- Stunil. Proc. 487. tinuance of the cause." Idem. :"*.'! Am. and Eng. Enc. L., 817, 3=4 Enc. PI. and Pr., 869; 5 citing Earnest v. Napier, 15 Ga. Stand. Proc, 483. 306; Bergen v. Riggs, 40 111. 61, 30 4 Enc. PI. and. Pr., 869. The 8!) Am. Dec. SS.'?; Kelspy v. Berry, authorities are conflicting as to 40 111. 69. See also, Myers v. Trice, whether the "admission may he 86 Va. 840, 11 S. E. 428; Fiott simply that the witness if present v. Com., 12 Gratt. (Va.) .564. See would testify as alleged, or must be Moore v. Moore, 72 W. Va. 260, 262, that the exjjected testimony is abso- 78 S. E. 99. lutely true." 5 Stand. Proc. 4S4. so 3 Am. and Eng. Enc. L., 817, Of course, the terms of the agree- Myers v. Trice, 86 Va. 840, 11 S. E. ment upon which the admission is 428. 643 Continuance § 494 such a rase ought to be watched with jealousy, and the discre- tionary power of the court exercised with caution ; but, if there is no sufficient reason to induce the belief that the alleged ground of the motion is feigned, a continuance should be granted, rather than seriously to imperil the just determination of the cause by refusing it." § 494. Inability of a party to prepare his case for a hearing. While it is the policy of the law to discourage negligence in the preparation of a cause for trial or hearing, it is neverthe- less its intendment to afford every One a sufficient opportunity for a full and fair hearing of his cause; ''^ so that if a party has used all the diligence that could be expected under the particu- lar circumstances of the case to get ready for a hearing, but has been unable to be in a situation to place his cause fully and fairly before the court, a continuance ought to be granted to him to enable him to do so."*^ Thus, where the matters involved in a chancery cause are complicated and important, and owing to the sickness of a party, and of her agent, who has had con- trol of her interests, she has been unable to prepare for trial, and since the preceding term, owing to the prevalence of small- pox in the vicinity, and the sickness of her counsel and wit- nesses, she could not procure the necessary depositions, a con- tinuance should be granted her, though the cause was continued on her motion at the last term." So, where a party is confined to his bed by sickness, and has been so for some time, so as to be unable to attend personally to his case and prepare for its trial, a continuance ought to be granted.''* 40 Myers v. Trice, 86 Va. 840, 11 S. E. 941; McAlexander v. Hairston, S. E. 428; Moore v. Moore, 72 W. 10 Leigh (Va.) 486; Hunt v. State, Va. 260, 262, 78 S. E. 99. 102 Ga. 569, 27 S. E. 670. 41 Walker v. State, 4 W. Va. 749 ; « See same citations. Chandler v. Barker, 2 Har. (Del.) 43 Radford v. Fowlkes, 85 Va. 820. 316; Dacey v. People, 116 HI. 555, 8 S. E. 817. 6 N. E. 165; Radford v. Fowlkes, ** McAlexander v. Hairston, 85 Va. 820, 8 S. E. 817; New York 10 Leigh (Va.) 486. L. Ins. Co. V. Davis, 94 Va. 427, 26 § 496 Equity Procedure 644 § 495. Failure to give security for costs. If the nonresidenee of a party is suggested and securitj' for costs is demanded, and the plaintiff does not give such security until a subsequent term of the court, the defendant is entitled to a continuance of the cause at the term at which such security is given.^^ § 496. Absence of counsel as a gfround for continuance. An examination of the authorities discloses that absence of counsel is not favored as a ground for continuance,^^ and espe- cially is this the case in the absence of a single attorney when other counsel connected with the case, who are competent to manage the cause and present it to the court notwithstanding the absence of cocounsel, are present."" And this is the gen- eral rule, though the absent attorney be the leading counsel in the cause ; ^' unless it be made to appear that the party had no time to consult his other counsel and give such counsel full in- formation as to the nature of his case.*' In some cases, the court may decline to continue a cause in the absence of the only counsel.^" But the matter of continuing a cause on the ground of the absence of counsel, as in all other cases, rests largely in the discretion of the court ; ^^ and when the exigencies of the situation and the peculiar circumstances of the case call for it, 43 Jacobs V. Sale, Gilm. (Va.) S. E. 5.52; Cornett v. Combs, 21 Ky. 123. L. S37, 53 S. W. 32; State v. Frost, 40 Robinson v. State, 82' Ga. 53.5, 103 Tcnn. f>85, 54 S. W. 986; John- 9 S. E. 528; Nixon v. State, 85 Ga. son v. State, 108 Ga. 771, 33 S. E. 455, 11 S. E. 874,; Reynolds v. 641. Campling, 23 Colo. 105, 46 Pac. 47 See same citations. 639; Evansville & I. R- Co. v. 48 Moulder v. Kempff, 115 Ind. Hawkins, 111 Ind. 549, 13 N. E. 459, 17 N. E. 906, citing Work. Pr., 63; Smith v. State, 132 Ind. 145, §§738-749; Belck v. Belck, 97 Ind. 31 N. E. 807: Mixon v. State, 36 73; Eslinger v. East, 100 Ind. 434. Tex. Crim. 66, 35 S. W. 394; 40 See same citations. Long V. People, 135 111. 435, 10 L. -".o Moulder v. Kempff, 115 Ind. R. A. 48, 25 N. E. 851; Stringam 459. 17 N. E. 906. V. Parker, 159 111. 304, 42 N. E. =i idem. 794; Gunn v. Gunn, 95 Ga. 439, 22 645 Continuance § 498 the court will continue a cause on the ground of the absence of counsel.'^ § 497. Continuance to enable a party to take deposition. If a party has taken a deposition in due time which has not been received, so as to be used as evidence in the cause, a con- tinuance will be granted ; "^ or where a deposition has been taken and filed as a part of the evidence in the cause, but is excepted to for irregularities in the taking thereof, and by reason of such exception it is inadmissible, a continuance will be granted so as to enable the party to retake such deposition.^* § 498. Diligence to be shown in order to obtain a continuance. As we have seen,^-' when a continuance is sought on the ground of the absence of evidence which a party wishes to pro- cure, the party's previous diligence to obtain such evidence must be made to appear. There is no fixed or prescribed stand- ard of diligence laid down by the courts, as it must largely depend upon course of procedure and business, the situation and location of the witness whose evidence is desired, the facili- ties which may be employed to obtain it, and all the facts and circumstances of the case.^" It should be shown by the affidavit filed in support of the motion for the continuance that the party has used all the legal methods within his reach to procure the evidence, before it can be said that he has exercised "due diligence" as contemplated by the law.^' And the motion for ssRossett V. Gardner, 3 W. Va. 35; Milton v. Rowland, 11 Ala. 531; Radford v. Fowlkes, 85 Va. 732; Fant v. Miller, 17 Gratt. (Va.) 820, 8 S. E. 817; Hook v. Nanny, 4 187; Carter v. Edmonds, 80 Va. 58; H. & M. (Va.) 157; Harrigan v. Hoopes v. Devaughn, 43 W. Va. 447, Turner, 53 111. App. 292; Myers v. 454, 27 S. E. 251. Trice, 86 Va. 835, 11 S. E. 428; 55^„je, §491. . Rhode Island v. Massachusetts, 11 "^^ 4 Enc. PI. and Pr., 856, citing Pet. (36 U. S.) 226, 9 L. Ed. 697. Davis, etc., Bldg., etc., Co. v. River- 53 Marsh v. Hulbert, 4 McLean side Butter, etc., Co., 84 Wis. 262, (U. S.) 364; White's succession, 45 54 N. W. 506. La. Ann. 632. ^^ Idem, 857-859. 64 Vance v. Snyder, 6 W. Va. 34, § 500 Equity Procedure 646 a continuance, whatever the grounds upon which it is based, must be made with due diligence.'^ § 499. Newly-discovered evidence as a ground of continuance. If a party has discovered new and material evidence so short a time before the hearing of the cause as to prevent the secur- ing of such evidence to be used upon the submission of the cause for a decree, a continuance will be granted to afford opportunity to obtain it, if it is shown that it could not have been sooner discovered by the use of due diligence.^' It must appear, however, that such evidence is material.^" § 500. The application for a continuance — ^Necessity for and how made. It is well-settled that if a party desires a continuance he must apply for it." The application is made by motion to the court,"^ usually accompanied by affidavit, "' and in equity it is suggested that the affidavit ought always to be made and filed with the papers of the cause, unless the continuance be a matter of right, or the propriety of a continuance appears of record, when a motion alone is sufficient.^* If neither party insists 58 Walker v. May, 67 W. Va. 316, os Morris ^. State, 104 Ind. 4.57. 67 S. E. 786; Cross v. Cross, 56 W. 4 N. E. 14S; Edwards v. Drew, 2 Va. 1815, 49 S. E. 129. E. D. Smith (N. Y.) 5.5; Hubler v. 59 Chester Church v. Blount, 70 Pullen, 9 Ind. 273, 68 .\m. Dec. 620; Ga. 779; Berry v. Metzler, 7 (^al. Thompson v. Miss. ^Marine and F. 418; Rosset v. Greer, 3 W. Va. 1; Ins. Co., 2 La. 228, 22 Am. Dee. 129. Farmer v. State, 95 Ga. 498, 20 S. 04 The reason for filing the affi- E. 494. davit in equity is that, as it can 60 Rosset V. Greer, 3 W. Va. 1. not be brought into the record by ei Cross v. Cross, 56 W. Va. 185, bill of exceptions, as none can be 49 S. E. 129; Dillard v. Diilard, 2 filed in a court of equity, Lente Va. Doc. 28, 21 S. E. 669. v. Clarke, 22 Fla. 515, 1 So. 149; 62 Dillard v. Dillard, 2 Va. Dec. Barnett v. Montgomery, etc., R. Co., 28. 21 S. E. 669; Taylor v. Cox, 32 51 Ala. 556, the filing of it makes W. Va. 148, 9 S. E. 70; Harrison it a part of the record. "Refusal to V. State 83 Ga. 129, 9 S. E. 542; continue a chancery suit, in a proper Smith V. Stewart, 111 Ind. 526, 13 case for a continuance, is good j,f_ j;_ 48. ground for a motion to rehear an 647 Continuance § 501 upon a hearing, no order eoiitinuing the cause is necessary, as it is continued by operation of the statute.^^ § 501. The effect of an order of continuance. When an order simply provides for the continuance of a cause, without designating to what time it is continued, it is construed as a continuance to the next regular terra of the court ;*^ or if the order provides a continuance to the next term, it is taken to mean the next regular term.^' After a cause has been continued, nothing further can be done in it during the interval between the day of continuance and that to which it stands continued/^ unless the order of continuance be set aside, which the court in a proper case may do, at the term at which it is entered, after proper notice to the party at whose instance the continuance was gran ted. ^^ interlocutory decree, but the decree 6^ W. Va. Code, 1013, c. 114, § 12; should, as a general rule, show that Taylor v. Taylor, 76 W. Va. 460. a motion for a continuance was 85 S. E. 652. made and overruled. If, however, «" 4 Knc. PI. and Pr., 800; 5 the decree fails to show that the mo- Stand. Proc. 404. tion was made, but it is averred in " Idem, citing Sawyer v. Bryson, the petition for rehearing and not 10 Kan. 199. denied, this is sufficient." Spilman, ""' 4 Enc. PI. and Pr., 800. Adams & Co. v. Gilpin, 93 Va. 60S, ^n Idem, 891; 5 Stand. Proc. 494 25 S. E. 1004. CHAPTEE XXIII DEPOSITIONS § 502. Tlie former method of taking evidence in chancery. § 503. Tlie present mode of taking testimony in chancery. § 504. Depositions can he taken only in a pending cause. § 505. The notice to take depositions. § 506. What constitutes reasonable notice as to the time of taking dep- ositions. § 507. The sufficiency of the notice to take depositions. § 508. What party entitled to take depositions. § 50i). The service of the notice to take depositions. § 510. The taking of tlie deposition. §511. The adjournment of the taking of depositions. § 512. By whom depositions may be taken. § 513. The attendance of the witness before the officer taking the deposition. §514. The taking of the deposition by or before the officer. §515. The caption and certificate to the deposition. § 516. Filing depositions. § 517. Keeital in tlie decree that the cause was heard upon depositions. § 518. At what stage of the cause a deposition may he taken. § 519. At what stage of the cause a deposition may be taken — further con- sidered. § 520. Depositions cannot be read in evidence, except as to issues made up in the cause when taken. § 521. When depositions may be retaken in a cause without the consent of the court. § 522. Kxceptions to depositions — Plow taken. § 523. How exceptions to depositions passed on. § 524. Kxceptions to a deposition because of the incompetency of the wit- ness. § 625. How incompetency of evidence may be waived. § 526. All objections to evidence are waived but tliat excepted to. § 527. Objections to leading and other improper questions and the answers thereto. § 528. The suppression of a deposition. § 529. Who may take advantage of defects and irregularities relating to depositions. § 530. Lost depositions. §531. Who may road a deposition. § 532. When deposition taken in one suit may be used in another. 648 649 Depositions § 502 § 502. The former method of taking evidence in chancery. Under the former practice obtaining in equity, following that of the English Court of Chancery, which seems to have been adopted from the procedure of the ecclesiastical courts,^ the evidence of witnesses was taken secretly, upon interrogatories, before a master or commissioner, and none of the testimony was published ^ until all the witnesses on both sides had been ex- amined and cross-examined.^ The only information obtainable by the defendant, to enable him to cross-examine the plaintiff's witnesses, or to meet the evidence taken by the plaintiff by an examination of his own witnesses, was that derived from the facts alleged in the bill,* except that he was entitled to have information respecting the names and addresses of the wit- nesses.^ This method of obtaining the evidence in chancery continued in the English Court of Chancery until 1828, when viva voce examinations were permitted before the master, at his discretion.^ Formerly in the Virginias a commission was neces- sary in order to take the deposition of a witness ; '' but this is 1 Langdell, Eq. PI. (2nd Ed.), As each party, however, is in the §47; Shipman, Eq. PI., 131. dark as to tlie direct examination 2 Publication is the unsealing and of his adversary's witnesses, cross- opening of the depositions, by the examination is ineffective and clerk of the court in which the dangerous, and hence it is seldom cause is pending, and until the depo- resorted to. There is hut one pro- sitions were opened, neithpr party batory term, during wliich both par- was at liljerty to see tl'.e te.'^tiniony ties take tlieir testimony. When it which had been taken. Merwin, Eq. expires, unless one of the parties and Eq. PL, §906; Shipman, Eq. procures an extension of time, the PL, 132. testimony is publislied, and tlien no 3 Langdell, Eq. PI. (2nd Ed), §56. more witnesses can be examined." This author, treating of the old * Idem. method of obtaining evidence, says: ^ Idem. "Each party is also entitled to « 2 Daniel), Cli. PI. and Pr. (6th cross-examine the witnesses of his Am. Ed.), 1195. adversary on cross-interrogatories, ^ Unis v. Charlton, 12 Gratt. which of course are kept secret from (Va.) 484; Blincoe v. Berkeley, 1 the adverse party, and also from Call (Va.) 40.'): Plainville v. Brown, the witnesses to be cross-examined 4 H. & M. (Va.) 482; Moore v. until they are administered to him. Hilton, 12 Leigh (Va.) 1, 27. § 503 Equity Procedure 650 no longer necessary in any case in West Virginia,^ and is re- quired in Virginia only when it is necessary to use the deposi- tion of the subscribing witness or witnesses to a will in the matter of its probate.' § 503. The present mode of taking testimony in chancery. In many jurisdictions, and under certain conditions in West Virginia, the use of depositions has been discontinued by stat- ute, and the witnesses are examined orally before the court.'''' But in West Virginia, unless counsel by leave of court agree otherwise, and in Virginia, the evidence in chancery causes is in the form of depositions.^' The West Virginia statute pro- vides that "in any pending case the deposition of a witness, whether a party to the suit or not, may, without commission, be taken in or out of this state by a justice or notary public, or by a commissioner in chancery, or before any officer author- ized to take depositions in the county or state where they may •be taken." ^^ "On affidavit that a witness resides out of this state, or is out of it in the service thereof, or of the United States, his deposition may be taken by or before any commis- sioner appointed by the governor of this state, or any justice, notary public or other officer authorized to take depositions in the state wherein the witness may be; or if the deposition is to be taken in a foreign country, by or before such commissioner or commissioners as may be agreed upon by the parties or ap- pointed by the court, or if there be none such, by or before any American minister, plenipotentiary, charge d'affaires, consul general, consul, vice consul, consular agent, vice deputy con- sular agent, commercial agent or vice commercial agent, ap- 8W. Va. Code, 1013, c. 130, §33. "2 Bart., Cli. Pr. (2nd Ed.), 783. 9Va. Code, 1!)04, §3361. 12 W. Va. Code, 1013, c. 130, §33. 10 Sliipman, Eq. PI., 131 ; Cox v. In Virginia, "in any pending case Pierce, 120 111. .'5.56, 12 N. E. 194: the deposition of a witness, wliether Merwin, Eq. ami Eq. PI., § 9fi6. a party to the suit or not, may be See West Virginia Acts, 1017, c. 6.5; tal-en in tliis state hy a justice, or W. Va. Code, 191S, c. 131, §26. notary, or hy a commissioner in chancery." Va. Code, 1004, § 3359. 651 Depositions § 503 pointed by the government of the United States, or by or be- fore the mayor or other chief magistrate of any city, town or corporation in such country or any notary public therein. ' ' ^* In West Virginia, "chancery causes may, by leave of the court, and by agreement of counsel for the parties, be heard and de- termined in open court ; but in cases so heard the witnesses shall personally appear before the judge to testify orally, un- less their depositions shall be taken out of court, under rules obtaining, by agreement of counsel, or by order of the judge for good cause. "^* And in West Virginia, all divorce causes "shall be tried before the court in chambers, and all witnesses shall appear and testify at the trial the same as witnesses in an action at law; and the law governing the taking and reading of depositions in an action at law shall apply to depositions in the trial of divorce cases; provided, the court may, instead of proceeding with the case under this section, refer the same to a eommiss-ioufir in chancery, or a special commissioner, as herein- after provided. " '^^ If the cause be referred to such commis- sioner, the testimony is taken before him. If the testimony is to be taken in a county other than that in which the suit is 13 W. Ya. Code, 1913, c. 130, § 34. sentative of the United States in «. In Virginia, "the deposition of a, foreign country, or the mayor, or witness, whetlier a party to tlie suit othei* magistrate of any city, town or not, who resides out of tlie state, or corporation in such country, or or is out of it in the service thereof, any notary therein." Va. Code, or of the United States, may be .1004, § 3360. taken before any commissioner ap- i* W. Va. Code, 1918, c. 131, §26: pointed by the governor of tliis Acts of 1917, c. 65. The evident state, or any justice, notary, or purpose of tliis statutory provision: other officer authorized to take depo- is to make tlie taking of evidence in sitions in tlie state whei-ein the wit- chancery causes, where counsel so ness may be, or if the deposition elect and the court permits, conform is to be taken in a foreign country, in all respects to the procedure in before any person that the parties the trial of a common-law action, may agree upon in writing, or any except that a bill of exceptions shall American minister plenipotentiary, not be necessary in order to make charge d'affaires, consul-general, the evidence a part of the record, vice-consul, commercial agent ap- Idem. pointed by the government of the i^ W. Va. Code, 1916, c. 64, § 15. United States, or any other repre- § 503 Equity Peoceduee 652 pending, the testimony must be taken before a commissioner of the court of the county in which the testimony is taken. "If testimony is taken of witnesses residing out of the state of West Virginia, the same shall be taken before some person duly au- thorized to take depositions in divorce eases in the state where taken."" The witnesses are examined and cross-examined orally be- fore the officer taking the depositions by counsel representing the respective parties to the suit. Formerly the testimony was reduced to writing in the presence of the parties or their coun- sel by the officer before whom it was taken, the deposition then being signed ■'^ by the witness whose testimony had thus been taken and returned to the clerk of the court in which the cause was pending, under the certificate of the officer who took the deposition. Upon receipt of the deposition by the clerk, it was filed by him among the papers in the cause in which it was taken, and in which it was to be used as evidence.-'^ But in "West Virginia, since the acts of 1909, "depositions may be taken in shorthand, or stenographic characters or notes, and shall be written out in- full and transcribed into the English language by the stenographer taking the same, and certified by the officer before whom the depositions are taken ; and if certi- fied by such officer under his hand and if further certified by him that such stenographic characters and notes were correctly taken and accurately transcribed by him, or under his direction and supervision, and that the -witnesses were duly sworn, such depositions may be received and read in evidence without proof of the signature to such certificate, and, without the signature of the witness to such depositions; and in ease the stenographer taking the said depositions is not the officer before whom the same is being taken, then such stenographer before proceeding to take any of said depositions, shall be sworn to take correctly lew. Va. Code, 1916, e. 64, §18. v. Hamit, 1 A. K. Marsh. (Ky.) See Va. Code, 1004, §2260, 500; 2 Bart., Ch. Pr. ■(2nd Ed.), i7Barnett v. Watson, 1 Wash. 786-788. See post, §514, note 103. (Va.) 372; Shepherd v. Snodgrass, is See Shipman, Eq. PI., 121; 2 47 W. Va. 79, 34 S. E. 879; Mobley Bart., Ch. Pr. (2nd Ed.), 786-788. 653 Depositions § 504 and accurately transcribe the same, and the certificate of the officer before whom the depositions are taken shall state that the stenographer was so sworn. "^^ In Virginia, it is said that the rule is now almost universal to take the deposition in short- hand or by a typewriter, the stenographer or typewriter in every case writing out both questions and answers.^" § 504. Depositions can he taken only in a pending cause. It is well settled by the eourts,^^ and is also provided by statute, ^^ that the suit in which the deposition is to be used ^' must be pending. A cause, strictly speaking, may be said to be pending as soon as the summons is issued.^* It is settled upon authority that a deposition may be taken after the bill has been filed.^^ In view of the fact that the suit is pending upon the issuance of a summons, there does not seem to be any express provision declaring that the deposition may not prop- erly be taken after the issuance of the summons, and before the filing of the bill;^^ but in the Virginias, it would seem that the filing of the bill is a prerequisite,^' and a sufficient reason for such a rule would seem to be that the defendant is entitled to have access to the bill as an aid in cross-examination. It has been decided that a deposition taken before an amended and supplemental bill has been filed may be read in support of such bill.28 19 W. Va. Code, 1013, u. 130, § 33. 24 Ante, § 12. 20 2 Bart, Cli. Tr. (2n(l Ed.), 788. 25 Ante. § 491; Cooper v. Bennett, =1 Glenn v. Brush, 3 Colo. 26; 70 W. Va 110, 112, 73 S. E. 260; .r, TT ,, nn TTi »,-. T> Dixon V. Dixon, 73 W. Va. 7, 79 b. Bowen v. Hall, 22 Vt. 612; Brown j, joi6. It is not necessary that V. Foss, ] 6 lie. 2.57 ; Ex Parte Mun- the answer be filed. Tierney v. ford 57 Mo. 603; Cooper v. Bennett,- United Pocahontas Coal Co., 85 W. 70 W. Va. 110, 73 S. E. 260; Dixon ^a. 545 102 S. E. 249 But see 2 T^- -TO IT7 TT ^ TO c T. 1 r. 1 ff Bart, Ch. Pr. (2iid Ed.), 785, to V. Dixon, 73 W. Va. 7, 79 b. iL. 1016. ^^^ ^g^^^ ^^^^^ ^jg ^^^gg m^at have 22 W. Va. Code, 1913, c. 130, § 33; been set for a hearing. Va. Code, 1904, § 3359. 26 See Mumford v. Church, 1 23 Unless it be a deposition in Johns. (N. Y.) 147, 1 L. Ed. 278. perpetuam rei memoriam, or one ^7 See citations in note 25, supra. taken de ienc esse. See ante, chap- ^8 Hatcher v. Crews, 78 Va. at ters 6; 7. p. 467. § 50.J Equity Procedure 654 § 505. The notice to take depositions. Depositions can be taken only after reasonable notice to the adverse party of the time and place of taking the same,^" un- less such notice be waived by the party entitled thereto.^" The essential requisites of the notice, as here indicated, are that it must specify the time and place, when and where the deposi- tions will be taken, and the notice thereof must be reasonable. But in addition to this, it must indicate with reasonable cer- tainty the suit in which the deposition is to be taken. '^ A depo- sition can not be read to affect the interests of any party to whom notice of the time and place of taking it has not been given.'^ And if a guardian ad litem has had no notice, deposi- tions taken in a cause can not be read against the infant par- ties.'^ But where a cause has been referred to a commissioner to take an account, or to execute some other order of reference, he may take the depositions of witnesses to enable him to act upon the subject, under his general notice, and a special notice to take such depositions is not necessary.^* 29 W. Va. Code, 1913, c. 130, § 35; Sparrow v. Blount, 90 N. C. 514; Va. Code, 1904, §3362; Bowyer v. Potts v. Coleman, 86 Ala. 94, 5 So. Knapp, 15 W. Va. 277; Collins v. 780; Benham v. Purdy, 48 Wis. 99; Lowry, 2 Wash. (Va.) 75; Hunter Wilkinson v. Ward, 42 111. App. V. Fulcher, 5 Eand. (Va.) 126. 541 ; Peshine v. Shepperson, 17 Depositions taken on a legal holi- Gratt. (Va.) 472, 94 Am. Dec. 468; day, under a notice specifying such Ryan v. O'Connor, 41 Ohio St. 368. day, can not be read on the hearing See Weeks, L. of Dep., §§ 273-278. except with the consent of parties; si Bowyer v. Knapp, 15 W. Va. "the notice, by virtue of Ch. 15 L, 277. Code, being taken to intend the fol- 3= Stubbs v. Burwell, 2 H. & M. lowing day." Dixon v. Dixon, 73 (Va.) 536; Unis v. Charlton, 12 W. Va. 7, 79 S. E. 1016. Gratt. (Va.) 484. 30 Holman v. Bachus, 73 Mo. 49 ; 33 Walker v. Grayson, 86 Va. Beming V. Foster, 42 N. H. 165. 337, 10 S. E. 51; Strayer v. The presence of the party en- Long, 83 Va. 715, 3 S. E. 372. titled to notice at the taking of 34]\icCandlish v. Edloe, 3 Gratt. the deposition, or the submission of (Va.) 330; Geiser Mfg. Co. v. cross-interrogatories or any otlier Cliewniiig, 52 W. Va. 523, 44 S. circumstance from which waiver E. 193. may be inferred, constitutes a suffi- In the former case the court de- ciont waiver of notice. Jackson v. cides that where a commissioner to Shepard, 7 Cowen 59, 9 L. Ed. 51 ; whom accounts have been referred 655 Depositions §506 § 506. What constitutes reasonable notice as to the time of taking depositions. Inasmuch as a party has the right to be present personally when depositions are taken by his adversary,'^ reasonable notice is a question dependent upon the peculiar circumstances of iby an interlocutory decree, for settlement, gives notice to the par- ties by publication in a newspaper, of the time and place of his acting upon the subject, an exception by a party for want of personal notice, where that was practicable, ought not to be entertained, unless he shows by his own affidavit or other- wise, that he had no such informa- tion of the contemplated proceedings of the commissioner as would have enabled him to attend. See also. Miller v. Oox, 38 W. Va. 747, IS S. E. 960. 35Fant V. Miller, 17 Gratt. (Va.) 187; Latham v. Latham, 30 Gratt. (Va.) 340. "If a party gives notice of the taking of several depositions at dif- ferent places on the same day, so that the opposing party can not be present to cross-examine all the wit- nesses, he may select which ex- amination he will attend, and the other depositions will be sup- pressed." Fant V. Miller, supra. "Notice is given to take deposi- tions at two distant places on the same day. The other party may attend one of the places, and object to the depositions taken at the oth- er place for want of notice; but if he attends by his counsel at both places, he can not except to the depo- sitions taken at either or both pla- ces." Latham v. Latham, supra. "Where a notice was left with the wife of * party at his dwelling house, when it was known by the adverse party that he was absent on a journey to another state, and where it appeared also, that the no- tice might previously have been giv- en, to the party himself, and that the taking of the deposition might have been postponed, as it respected the trial of the cause, until his re- turn, it was held that the notice was insufficient, and the deposition taken under it was suppressed." Coleman v. !\Ioody. 4 11. & M. 1. "A notice given at 8 p. m. to take a. deposition between 8 and 9 a. m. of the next day, in the city where both parties and their coun- sel reside, would generally be rea- sonable notice. And such notice giv- en directly the plaintiff learned the witness would leave for a distant state on the next afternoon by 3 o'clock, and would not return again, is sufficient, though a court was in session in the city at the time, and tliough the defendant, who is an attorney, and his counsel, had been occupied as counsel on the day of the notice, and were to be and were so occupied on the next day, so that they could not attend to the tak- ing of the depositions." McGinnis V. The Washington Hall Associa- tion, 12 Gratt. (Va.) 602. On June 7, 1801, notice was given that depositions would be taken in London, England, on July 4th, fol- lowing, and was served by posting a copy thereof at the front door of the §506 Equity Procedure 656 each ease,^° the principal of which are the distance to the point where the depositions are to be taken, traveling conveniences or facilities, condition of the roads, and such other matters as re- late to the ability of the party to attend, personally or by coun- sel,^^ and to return in time for the trial of the cause. ^^ A no- tice to take depositions may be served upon a non-resident party by order of publication, and such notice is sufficiently served in "West Virginia if published in four successive weekly issues of the newspaper in which such notice is published ; '' but in Virginia the notice must be published for the full four successive calendar weeks/" It is provided by statute in the Virginias that, when the party to be served is a non-resident of party's residencp, in Richmond (lie and all the members of his family lieing then absent from home), and also by serving a copy upon his counsel upon the same day, and by mailing a copy, the next day, to the party, who was in England, which, it appears, he received in due course of mail. Field, in view of the evi- dence in respect to communication and the convenience of travel be- tween this point and England, the notice in point of time is reasonable and sufficient. Trevelyan v. Lofift, 83 Va. 141, 146, 1 S. E. 991. Code, Virginia, § 3363, prescribes that, in serving the counsel of a par- ty who is a nonresident with notice to take depositions, sufficient time shall be given for conveying, by or- dinary course of mail, a letter to the residence of such party, and -a. reply back to the place of service, and then for the counsel to attend at the place of takng the deposi- tion. Held, service of a notice at Eiohmond at 3:45 p. m. on May 24th, to 'take a deposition at Hamp- ton on May 26th, was not within a reasonable time, where nonresident resided in Baltimore. Payne v. Zell, 98 Va. 294, 36 S. E. 379. A deposition taken in another state upon three days' notice to the adverse party at a place more than two hundred and forty miles from the place of trial is properly exclud- ed in the discretion of the court, un- der a statute requiring "reasonable notice" to the adverse party. Dros- dowski V. Supreme Council O. of C. F., 114 Mich. 178, 72 N. W. 169. One day's notice to take a deposi- tion in a place to one residing two miles from that place is reasonable. McGinley v. Mcljaughlin, 2 B. Mon. (Ky.) 302. 36 Trevelyan v. LofFt, 83 Va. 141, 1 S. E. 991. 37 Trevelyan v. Lofft, 83 Va. 141, 1 S. E. 991; Coleman v. Moody, 4 H. -and M. (Va.) 1. 38 Trevelyan v. Lofitt, 83 Va. 141, 1 S. E. 991; Wise v. Postlewait, 3 W. Va. 452, 459. 39 Ante, §20, and authorities there cited. See Jliller v. Neff, 33 W. Va. 197, 10 S. E. 378. *o See same citations. 657 Depositions § 507 the state, the service of the notice may be made upon the coun- sel of such party with the same effect as if served upon the party himself, provided the time between the service of notice and taking the deposition be sufficient for conveying by ordi- nary course of mail a letter from the place of service to the place of residence of the party, and a reply from that place back to the place of service, and then for the counsel to attend at the place of taking the deposition/^ In all cases where the notice is thus served, upon exception taken to the deposition, the court may determine, under all the circumstances, whether the notice has been served in reasonable time, and admit or reject the deposition accordingly.^^ But when a party is a resident of the state, service upon his attorney is not suificient ; and a deposi- tion taken upon a notice so served can not be used as evidence, unless lack of service be waived."" "Mere silence of the party, after knowledge of the service, and of his attorney, at the time of service, does not constitute such waiver."** § 507. The sufficiency of the notice to take depositions. The sufficiency of the notice mu.st generally be determined by the circumstances of each case.*^ The notice should be in writ- ing,** but in the absence of statute requiring a written notice, it has been lield that a verbal notice is sufficient, especially where notice is not denied.*^ The propriety of the invariable use of written notice to take depositions in equity is suggested, in order to avoid dispute or controversy as to the fact of notice, or its sufficiency."" If tlie notice is so drawn as to mislead the 41 Va. Code, 1004, §3363; W. Va. « Weeks, Law. Dep., §239. Code, 1913, c. 121, §3; Payne v. iT Idem; Melton v. Rowland, 11 Zell, 98 Va. 294, 36 S. E. 379 ; Webb Ala. 732. V. Ritter, 60 W. Va. 193, 54 S. E. 4s The practice relating to the 484. taking of depositions, both at law *2W. Va. Code, 1913, c. 121, §3; and in equity, as well as the lan- Va. Code, 1904, § 3363. guage of the courts employed in *3 Webb V. Eiftter, 60 W. Va. 193, cases in which the question of the 54 S. E. 484. suificieney of the notice has been a Idem. considered, clearly show the use of *5Kellum V. Smith, 39 Pa. 241. a written notice to take depositiona §507 Equity Procedure 658 party for whose benefit it is intended, it is not sufficient ; but if it is not calculated to mislead him, it will be sufficient,'" al- though it be not a literal copy of the notice returned with the deposition, which is admittedly good.^° In order that the no- tice may not mislead the party for whom it is intended, it should state the court in which the cause is pending,^^ the names of the parties to the suit,^^ the names of the witnesses, or some one of them, to be examined, '' and the time and place of taking the deposition.^'' It is usual and proper to address to be contemplated in all cases. In- deed, it has been held that verbal notice is insuffioient. Brintnall v. Saratoga, etc., R. Co., 32 Vt. 665. -IS Bowyer v. Knapp, 15 W. Va. 277; Atchison T. & S. F. E. Co. v. Pearson, 6 Kan. App. 825, 49 Pae. 681 ; Davis v. Settle, 43 W. Va. 17, 26 S. E. 557. 60 Bo«-yer v. Knapp, 15 W. Va. 277. 51 Sparks v. Sparks, 51 Kan. 195. 52 Kingsbury v. Smith, 13 N. H. 109; Bowyer v. Knapp, 15 W. Va. 277; Cales V. Miller, 8 Gratt. (Va.) ' 6; Steptoe v. Read, 19 Gratt. (Va.) 1. "A deposition is taken to be read in a case in which Franklin Bartley is defendant, and that is the name given in the summons and to which he appeared; but the name in which the action is carried on is William F. Bartley. The person is obviously the same, and Franklin is part of the defendant's name. The deposi- tion can not be objected to on this ground." Bartley v. McKinney, 28 Gratt. (Va.) 750. 53 Mr. Weeks, in his Law of Depo- sitions, § 246, says : "The wit- nesses need not all be named in the notice. Where a notice stated that tie deposition of several witnesses, naming them, and otiiers, were to be taken, and the witnesses named did not depose, but the evidence of oth- ers was taken at the time and place, this was held no good ground for excluding such depositions, ilany cases hold that the names of wit- nesses, as a general rule, need not be inserted in the notice." "Young V. Mackall, 4 Md. 362; Shepherd v. Thompson, 4 N. H. 213; Atchison, etc., R. Co. v. Meek, 49 Neb. 295, 68 N. W. 509; Hunter v. Fulcher, 5 Rand. (Va.) 126, 16 Am. Dec. 738. It is held in Davis v. Settle, 43 W. Va. 17, 26 S. E. 557, that a notice to take depositions is not bad because it specifies the county in which the depositions are to be taken, or in which the suit is pend- ing, but does not specify the state. It is usual to state in the notice that the deposition will be taken on a certain specified da^ between cer- tain specified hours, which is held to be sufficiently specific as to the time when the deposition will be taken. Case Threshing ilachine Co. v. Pederson, 6 S. D. 140, 60 X. W. 747; Weeks, Law Dep., 251. "A party in the notice is entitled to such a description of the place as to distinguish it from all others." 659 Depositions 507 the notice to the adverse party by name and to append to it Weeks, Law Dep., §261. In Kincheloe v. Kincheloe, 11 Leigh (Va,.) 393, it is held that a notice given for the talcing of depositions of several witnesses at a specified place in Missouri, on six successive days, between certain hours of each day, considering the distance of the place appointed for taking the depositions, and the uncertainty of the precise time at which the party would be enabled to have things in readiness for taking them, is sufficiently definite. The time stated must be specific, and a notice to take depositions "on the fifteenth, sixteenth, seventeenth, and eighteenth days of October, A. D. 1845, or on either of said days," does not comply with the statute. Eeardon v. Farrington, 7 Ark. 364; Samuel v. Cravens, 10 Ark. 380; Caldwell v. McVicar, 9 Ark. 418. The notice must specify the day upon which the taking will begin, and a notice that they will be taken "on the 24th day of June, between hours specified, on the 25th, on the 27th, and on the 28th of the same month at the same hours," etc., is bad. Benton v. Craig, 2 Mo. 198. But a notice was held sufficient which stated: "That I shall, on the 15th, 16th, and 17th days of May, 1862, commencing at 9 o'clock a. m. of each of said days, at the of- fice of Samuel McCreary, in the town of Rushville, in the county of Schuyler, and state of Illinois, take the depositions," etc. Patterson v. Hubbard, 30 111. 201. "At the town of Memphis" is suffi- cient notice to take the deposition at the city of Memphis. Eeardon v. Farrington, 7 Ark. 364. The notice should specify the place of taking the deposition, and where the notice stated that the deposition would be taken in the city of San Francisco, before a notary public, naming him, without designating the office or place of business of the notary, the notice was held insuffi- cient. Lucas V. Richardson, 68 Cal. 618. In Toledo, etc., R. Co. v. Badde- ley, 54 III. 19, 5 Am. St. Rep. 71, it was held that a notice having the venue Ford county, though suit was originally brought in Cham- paign county, notifying the defend- ant that the deposition would be taken at the residence of the plain- tiff, in Champaign City, Illinois, on a day named, sufficiently com- plied with the statute, as it gave the time and place. The court stat- ed that as the action was brought in Champaign county the inference would be fair that that was the county of plaintiff's residence, and was a county different from that in which the suit was pending. Notice is sufficiently certain which states that the "deposition will be taken at the general postofflce in the city of Washington, District of Co- lumbia." Bulla V. Morrison, 1 Blackf. (Ind.) 621. "Depositions will be taken at the postoffice in the town of America, in Kansas Territory," is sufficient, where it is not shown that there is another town of that name in the territory. Hobbs v. Godlove, 17 Ind. 359. Certainty to a common intent only is required; and where all the parties reside in the county, a no- tice to take a deposition at the court- §509. Equity Procedure 66{> the name of the party giving it.^' Objections to the insufficiency of the notice are waived by an appearance and cross-examina- tion of the witness.^^ § 508. What party entitled to take depositions. Any party to the suit may take depositions to be used as evi- dence in the cause, upon giving the proper notice.^' The notice is usually signed in the name of the party by his counsel, or it may be signed by the party himself.^' § 509. The service of the notice to take depositions. The notice must be served upon all the parties in the cause, who are to be affected, or who may be affected, by the testimony thus sought to be taken.^' Thus, if suit be brought on a joint demand against two defendants, a deposition can not be read against both, if notice has been given only to one of them ; *" and as to the one upon whom notice has not been served, the deposition will be suppressed.^^ The service of the notice may house is sufficiently certain. Bar- f>5 Weeks, L. Dep. § 248 ; 6 Enc. bour V. Whitlock, 4 T. B. Mon. Forms, and notes, 494; Bohn v. (Ky.) 180. Devlin, 28 Mo. 319. The notice A notice that a deposition be tak- must be signed. 7 Stand. Proc, 2S4, en at a particular tavern in a city citing Bohn v. Devlin, supra. named in the notice is sufficient, ^^ County of Green v. Bledsoe, 12 \vithout stating the Christian name 111. 267; Doe v. Brown, 8 Blackf. of the tavern-keeper, unless it is (Ind. ) 44.3; Xevan v. Eoup, 8 shown that there are two tavern- Iowa, 207. And, of course, the ne- keepers with the same surname in cessity for notic-i' may be waived by the city. Overstreet v. Philips, 1 the parties or their counsel, as by Litt. (Ky.) 122. agreement to take depositions with- A notice of taking depositions in out notice. 7 Stand. Proc, 294. the town of Elizabeth, without men- =7 6 Enc. PI. and Pr., 481. tioning at what house or place in ^s 7 Stand. Proc, 284, and cases the town, is insufficient. Crozier v. cited. Gano, 1 Bibb. (Ky.) 258. no Antr. § .lO.o ; Bowyer v. Knapp,, The house where a, certain indi- 15 W. Va. 277. vidual lives has been held to be a de- o" Bowyer >'. Knapp, 15 W. Va. scription sufficiently definite to iden- 277. tify tlie place. Owens v. Kinsey, 6 ei 7dem. •Jones L. (51 N. Car.) .38. 661 Depositions § 510 be made in the same manner as a summons commencing a suit,"^ except that such notice may be served, as we have seen,"' upon counsel of a non-resident party. But service upon either the party or his attorney by sending the notice through the mail is not sufficient, even though the notice be received."'' The return of the officer who served the notice is only prima fade evidence of the service thereof,"^ and such return may be con- tradicted by written and parol evidence.'"' The return may be amended, and when amended it relates back to the time of service.*' § 510. The taking of the deposition. A deposition is not admissible in evidence unless it is taken at the time and place specified in the notice.*^ Thus, where a notice specifies the day and the hours between which a deposi- tion will be taken, it must be taken between those hours."^ And if the deposition is taken within the hours appointed, in the absence of the adverse party, who appears at the place of taking such depositions at any time within the hours so ap- pointed for the purpose of cross-examining the witnesses whose depositions have been so taken, the deposition must be opened and an opportunity afforded the party to cross-examine the wit- nesses, else the depositions can not be used.'" It is hardly necessary to state that, by consent of the opposite party, a •deposition need not be taken at the time and place mentioned in the notice, but may by agreement be taken at any other time 02 J.nie, §§ 14-17. 187; Weeks, Law Dep., §§310 et ^'S Ante, § 506. seg.; Brandon v. Mullenix, 11 Heiak. C'lKing & Co. V. Hancock & Sons, (Tenn.) 446. 114 Va. 596, 77 S. E. 510. oo Farrar v. Hamilton, Taylor (N. «" Bowyer v. Knapp, 15 W. Va. C.) 10; Clianey v. Saunders, 3 277; MeClung v. McWliorter, 47 W. ^Munf. (Va.) 51. Va. 150, 34 S. E. 740, 81 Am. St. 'o Jeter v. Taliaferro, 4 Munf. Rep. 785. (Va.) 80. ee Idem. It is held in otlier cases, however, fi7 Hoopes V. Devauglin, 43 W. Va. that if the party has had a reason- 447, 27 S. E. 251. able time within which to appear ns Fancher v. Armstrong, 6 Ark. and cross-examine the witnesses be- § 511 Equity Procedure 662 and place." The deposition may be taken at any time within the hours designated in the notice. ''^ § 511. The adjournment of the taking of deposition;!. It is usual to provide in the notice that if the depositio^n *re not completed on the day specified, the further taking thereof wfiU be adjourned from day to day until the same be com- pleted.'^ And if the notice provide for an adjournment from day to day, or from time to time, the right of adjournment to a subsequent day is conceded; '* but the adjournment, the cause therefor and the date to which it is made should be regularly noted,'^ and should be from day to day, or from time to time, as the notice may provide. If the notice be from day to day, and the adjournment to a subsequent day, passing over one or more days, the deposition will be suppressed, unless the adverse party, his agent or attorney consented to the adjournment, or was present and made no objection, which is regarded as con- sent."' But it is laid down by high authority that the ofScer who is to take the depositions, of his own mere authority, may properly adjourn the taking from day to day, or from time to time, as occasion may require, even though the notice make no provision for adjournment ; '^ and if neither of the parties ap- pear at the time appointed to take the depositions, such officer may adjourn the time at his discretion, if he gives reasonable notice to the parties.'^ And the officer may adjourn to another place than the one designated in the notice, if the parties are present, and good reasons for the adjournment appear.^^ tween tlie hours spocificd, tlie I'S Weeks, Law Dep., §323; Een- depositions will not be opened, nctt v. Bennett, 37 W. Va. 306, 38 tliougli the adverse party appear Am. St. Rep. 47, 16 S. E. 638. within tlie hours specified, and de- 7« 4 Min., Inst. (Pt. I.), 7.53; 1 mand that lie be permitted to cross- Bart., Law Prac, 437-8; Chaney v. examine the witnesses. Bigoney v. Saunders, 3 Munf. (Va.) 51; Bay- Stewart, 68 Pa. St. 318; Scharfen- mond v. Williams, 21 Ind. 241; burg V. Bishop, 3.5 Iowa 60. Harding v. Merrick, 3 Ala. 60 ; 2 'iWeelcs, Law Dep., §§254, 322. P.art.. Ch. Pr. (2nd Ed.), 794. T2 Weeks, Law Dep., §380. "4 Minor, Inst. (Pt. I), 7-53. 73 Weeks, Law Dep., § 322. ^s Weeks, Law Dep., § 322. 74 1 Bart., L. Prac, 437. ^B Idem. 663 Depositions § 513 § 512. By whom depositions may be taken. "We have already shown before what officers depositions may be taken.*" But the mere fact that a person is authorized by law to take depositions is not always sufficient to qualify him to do so in a particular case. The officer taking the depositions must not be related to either of the parties to the suit," or intere.sted in the subject matter or result of the suit/^ or be in any wise connected with the case as an attorney at law,^' or agent of either of the parties.*^ The conclusion of the authori- ties is that the officer before whom the depositions are taken must stand indifferent in the case.*^ The presumption is that the officer is indifferent as to the case, until the contrary is shown.'* And the objection to the competency of the officer on the grounds mentioned in this section may be waived by the attendance of the party affected, knowing of such incompetency, and making no objection at the time of taking the deposition.*'' It is settled that a commissioner, to whom a cause is referred to take and report an account, may take depositions relating to the subject matter of the suit on reference.** § 513. The attendance of the witness before the officer taking the deposition. The officer before whom the deposition is to be taken, or the clerk of the circuit court of the county in which the attendance so Ante, §503. he held to have waived them. A 51 Weeks, Law Dep., § 285. party who knows of an objection of 52 Idem. this kind, which may be obviated by 53 Weeks, Law Dep., 328, citing the opposing party, can not be per- Whicher v. Whicher, 11 N. H. 348; mitted to lie by, and present it at a Cutler V. Maker, 41 Me. 594. time when it can not be remedied. Bi Smith V. Smith, 2 Greenl. The plaintiff might have caused the (Me.) 408. deposition to be taken before one 85 McLean v. Adams, 45 Hun. (N. who had always stood indifferent in Y.) 189; Dodd v. Northrop, 37 the case; no objection being made, Conn. 216. he had reason to believe that the de- 80 Gregg V. Mallett, 111 N. C. 74, fendant was satisfied of the impar- ls S. E. 936. tiality of the magistrate." Idem. sr Weeks, Law Dep., §285. «» Hogg, Eq. Pr., 612; Bank v. "Such objections must be taken Parsons, 42 W. Va. 137, 145, 24 S. at the time when the party becomes E. 554. aware of their existence, or he will ^ 514 IiIquity Procedure 664 is desired, may issue a summons for the attendance of a wit- ness at a time and place designated in the summons;*' but if the officer be a commissioner or other person appointed by au- thority of another state, attendance before them can not be compelled unless they be citizens of this state,'" and even then attendance can be required only at a place within the wit- nesses' county." It is further provided by statute in the Vir- ginias that, if any person being so summoned fail to attend or to produce a writing or document called for, after having been tendered his allowance for attendance, his mileage and tolls, the proper court or judge, after service of a notice or rule upon the witness, and no or insufficient cause against it shown, may fine the witness not exceeding twenty dollars, to the use of the party for whom he was summoned, and may also proceed by attach- ment to compel him to attend at such time and place as the court or judge may deem fit.'^ § 514. The taking of the deposition by or before the oflBcer. The witness ought not to prepare his answers in advance of his examination, but he ought to answer the questions orally and from memory as they are propounded to him.'^ But parties or their counsel may, prior to the examination of the witness, di- rect his attention to the facts in regard to which he is to be examined, and the witness may refresh his memory in regard to such facts by examining books and papers, and make memo- randa from them, especially as to dates and amounts, and use such memoranda for the purpose only of refresliing his memory, at the time of giving his evidence.'* If the witness is examined 80 2 Bart, Cli. Pr. (2nd Ed.) 9> 2 Bart., Cli. Pr. (2nd Ed.), 792; Va. Code, 1904, §3352; W. 792. Va. Code, 1913, c. 130, §25. 9= W. Va. Code. 1913, c. 130, § 27; 90 Thus, if the commissioner vn- Va. Code, 1904, §3354. dertake to compel attendance before sspant v. Miller, 17 Gratt. (Va.) him in West Virginia, under au- 187. thority of appointment by the state 94 Idem. of Virginia, he must be a citizen "The memoranda themselves arc of the state of West Virginia, and not evidence, and, a fortiori, what t'l'ce versa. he says of their contents is not, un- 665 Depositions §514 upon interrogatories, he can be examined only as to the inter- rogatories propounded,'^ and if the witness does not understand the English language, his deposition may be taken through the medium of an interpreter.'^ It is no ground of objection that the answers of the witness are given in a foreign language,'^ but they must afterwards be translated into English by a per- son appointed by an order of court, who must be sworn to the truth of his translation.'^ It is usual in practice for the officer before whom the witness is examined to write out the deposition," which may be done on a typewriter ; i"" but inas- much as all that can be demanded is the real testimony of the witness, it is sufficient if the testimony be written by a dis- interested person, ^"^ and it may be written by the witness him- less he remembers the facts after his memory is refreshed. The books and papers referred to may be evi- dence, and if so and it be desired to use them they must be produced, or secondary evidence given of their contents after laying the proper foundation for sueh evidence." Idem. 95 6 Enc. PI. and Pr., 528, citing Maryland Ins. Co. v. Bossiere, 9 Gill, and J. (Md.) 121; Stagg v. Pomroy, 3 La. Ann. 16; Marr v. Wetzel, 3 Colo. 2; Pigott v. Hollo- way, 1 Binn. (Pa.) 436. 9o/rfe»i, citing Campau v. Dewey, 9 Mich. 381; Amory v. Fellowes, 5 Mass. 219. The interpreter shoiild be sworn. W. Va. Code, 1913, c. 130, § 30; Va. Code, 1904, § 3357. 97 Idem, 5S2 ; Cavasos v. Gon- zales, 33 Tex. 133. 98 2 Bart., Ch. Pr. (2nd Ed.), 804. "The translation, after the truth thereof has been sworn to, is an- nexed to the depositions, and an office copy made of it, which will be permitted to be read at the hear- ing, saving all just e.xceptions. when, as is usually the case, the order so directs. The order for the appointment of a translator of the depositions, and for leave to use them at the hearing, is ohtained by motion of course, or by petition of course." 1 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 919. See W. Va. Code, 1913, c. 130, § 30. 93 1 Daniell, Ch, PI. and Pr. (6th Am. Ed.), 904-906. Under modern rules of practice, as in West Virginia by virtue of statute, when the depositions are taken through the medium of a stenographer, they are transcribed by him from his stenographic notes. W. Va. Code, 1913, c. 130, §33; ante, §503. 100 Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704; 2 Bart., Ch. Pr. (2nd Ed.l, 788; ante, §503. 101 6 Enc. PI. «nd Pr., 529, citing Putnam v. Larimore, Wright (Ohio) 747; Crossgrove v. Himmel- rich, 54 Pa. St, 203; East Tcnn., etc., E. Co. V. Arnold, 89 Tenn. 107, 14 S. W. 439; Read v. Eandel, 2 Harr. (Del.) 500. See amie, §512. §'514 Equity Procedure 6G3 self.i"^ It is laid down by reputable authority "' that it was usual in Virginia (until the introduction of the use of shorthand and typewriting in this matter) for the counsel propounding the question to write it out, and not uncommonly the answer also, and if this was done in the presence of the adverse party or his counsel, with his consent or without his objection, the deposition could not afterwards be objected to on that ground. This may still be done, and often is done, in the course of prac- tice in the Virginias. The deposition may be taken in narrative form,^"^ or by questions and answers,^"^ the latter being the usual method in modern practice. The deposition should be taken in the presence of the parties to the suit or their eoun- sel,^"^ so as to afford an opportunity for cross-examination of the witnesses if desired. ^""^ In the Virginia's, in all suits involv- ing the sale, lease or mortgage of the real estate of an infant or insane person, it is provided by statute '"* that no deposition shall be read in the suit against any infant or insane party, except by leave of the court, unless taken in the presence of the guardian ad litem, or upon interrogatories agreed upon by him.i"^ And in West Virginia, in a divorce case, it is provided by statute that the officer before whom depositions are taken 1112 See same citations. looFant v. Mlllt'i-, 17 Oratt. 11)32 Bart., C1i. Pr. (2nd Ed.), (Va.) 187. 787, 788. "'' I«- Miller V. Hawker, 85 W. Va. 691, 15 McAllister v. Ulopton, 51 Miss. 2Q2 S E 470 §536 Equity Procedure 690 and all proof is dispensed with as to such undenied allegations.^^ But unanswered allegations of a bill are not admitted to be true as to infants.^'' In Virginia, as to unanswered allegations of the bill, the rule, generally, is otherwise ; ^' and the facts alleged in the bill and not denied by an answer are not admitted to be true,^'' but the plaintiff must prove them.^^ And in the absence of a statute or rule of court, this is the practice which generally obtains in courts of equity; so that the reason for the principle heretofore announced,^^ that an answer should go to the entire bill, is made apparent ; " and if the answer does not notice some of the allegations of the bill, it is a just ground of exception to so much of the answer as does not admit nor deny any of the averments of the bill.^^ But there are certain cases, as we have seen,^' wherein unanswered allegations of the bill are construc- tively admitted to be true, even in the absence of statute or rule of court.^" §536. Constructive admissions made by pleadings, further considered — Averments in the answer, when and wher not admitted. The extent to which an answer is treated as evidence has, in many respects, already been noticed. ^^ But if a case is heard 21 See same citations. preponderance of evidence. Stack- 22Laidley v. Kline, 8 W. Va. pole v. Hancock, 40 Fla. 362, 45 L. 218. See ante, §§ 473, 474. R. A. 814. 2:! Ante, §428. z« Ante, §428. 24 Idem. -'' 1 Daniell, Ch. PI. and Pr. (6th 25 Clinch River Mineral Co. v. Am. Ed.), 720-722. Harrison, HI Va. 122, 21 S. R. OfiO; =8 Coleman v. Lyne, 4 Rand. Hardy v. Heard, 15 Ark. 195; (Va.) 456; Richardson v. Donehoo, Young V. Grundy, 6 Cranch (U. 16 W. Va. 703; Shipman, Eq. PI., S.) 51, 3 L. Ed. 149; Cushman v. 96;'Cuyler v. Bogert, 3 Paige Ch. BonfieW, 139 HI. 219, 28 N. E. 937; (N. Y.) 186, 3 L. Ed. 109; Luhe, Keighler v. Savage Mfg. Co., 12 Eq. PI., §340. Md. 383, 71 Am. Dec. 600; Brock- 2a Ante, §428. way v. Copp, 3 Paige Ch. (N. Y.) so In addition to the authorities 539 3 L. Ed. 266; Cropper v. cited under §428, vide the follow- Burton, 5 Leigh (Va.) 426; Wright ing: Page v. Winston, 2 Munf. V. Wright, 124 Va. 114, 97 S. E. (Va.) 298; Scott v. Gibbon, 5 358. An unanswered allegation in Munf. (Va.) 86; 3 Greenleaf, Ev. the bill need not be proved by the (8th Ed.), §276; 6 Am. and Eng. amount of testimony required to Dee. Eq., 107 note, overcome a sworn responsive answer, ^^ Ante, §§ 463-473. but it must be shown by at least a 691 Evidence § 536 only upoa bill and answer, all the allegations of the answer are admitted to be true, on the ground that the complainant has de- prived the defendant of an opportunity to prove the facts alleged in his answer by failing to put them in issue by replication ; '^ though the answer in such case sets up and relies upon affirma- tive matter of defense, and is not responsive to the bill,^' and although the answer be not under oath.'''' But if a replication has been filed to the answer, or depositions have been taken, as if a replication had been filed, allegations in an answer of ■affirmative matter, or of matter not responsive to the bill, are not admitted to be true,'^ and such affirmative allegations of an answer, or those not responsive to the bill, must be established iby independent testimony just as the plaintiff must establish the allegations of his bill.'* Where the bill calls upon a defendant to make statements or disclosures concerning the subject matter of the bill, allegations of the answer containing such statements or disclosures, though affirmative in character, are prima facie admitted to be true,''' and will be taken as true unless disproved, so far as such statements and disclosures relate strictly to the matter as to which the defendant is called on to answer.'^ s^Bierne v. Ray, 37 VV. Va. 571, a* Reed v. Cumberland Mut. F. 16 S. E. 804; Findlay v. Smith, 6 Tns. Co., 36 N. J. Eq. 396. Munf. (Va.) 142, 8 Am. Dee. 733; "o Bierne v. Ray, 37 W. Va. 571, Snyder v. Martin, 17 W. Va. 276; 10 S. K. 804; Forqueran v. Don- Forqueran v. Donnatly, 7 W. Va. nally, 7 W. Va. 114; Martin v. 114; Coal River Nav. Co. v. Webb, Rellelian, 3 W. Va. 480; Seim v. 3 W. Va. 438; Copeland v. McCue, O'Grady, 42 W. Va. 77, 24 S. E. 5 W. Va. 264: C'leggett v. Kittle, 6 !)94; Bee v. Burdett, 23 VV. Va. at W. Va. 452; Reynolds V. Crawfords- p. 747; ante, § 47i5, note !), etting ville Bank, 112 U. S. 405, 5 n. Ct. the later West Virginia cases., 213, 28 L. Ed. 733; Roach v. Glos, "« 1 Bart., Ch. Pr. (2nd Ed.), 419; 6 Am. and Eng. Dec. Eq. 108, note Beckwith v. Butler, 1 Wash. (Va.) 27, citing a long array of cases. 224. See ante, § 475. -3 Wilt V. Hnffman, 46 W. Va. -i? Corbin v. Mills, 10 Gratt. 473, 33 S. E. 270: Bierne v. Ray, (Va.) 406: Morrison v. Grubb, 23 37 W. Va. 571, 16 S. E. 804; Gratt. (Va.) 342. See ante. §465. Snyder v. Martin, 17 W. Va. 276; "« Corhln v. Mills, 19 Gratt. (Va.) Seim V. O'Grady, 42 W. Va. 77, 466; Bell v. Moon, 70 Va. 341; 24 S. E. 994; ante, §481. Radford v. Fowlkes, 85 Va. 820, 8 S. E. at p. 830. See ante, § 465. §537 Equity Procedure 692 Thus, where the bill calls upon a personal representative, in a suit to surcharge and falsify his accounts, to render an account of all his actings and doings as such personal representative, the answer, setting out a minute history of such transactions as were had by the personal representative, though affirmative in its allegations of defense, must be admitted to be prima facie true." But unless the matters disclosed are called for by the plaintiff in his bill, gratuitous averments of them in the answer are not even prima facie true.^" Thus, where a defendant in his an- swer to the bill denies that a deed to him was either voluntary or fraudulent, but claims that such deed is based upon a valu- able consideration, and specifies the particulars of the con- sideration, such averments of the answer as thus detail the matter of consideration are not responsive to the bill, are affirma- tive matters of defense, and must be proved." § 537. Constructive admissions made by the pleadings, fur- ther considered — Certain averments to be denied by affidavit. It is provided by statute in Virginia*^ that, "where a bill, declaration, or other pleading alleges that any person made, endorsed, assigned, or accepted any writing, no proof of the fact alleged shall be required, unless an affidavit be filed with the pleading putting it in issue, denying that such endorse- ment, assignment, acceptance, or other writing was made by the person charged therewith, or by any one thereto authorised by him." In West Virginia the statute provides that, "where a declaration or other pleading alleges that any person made, endorsed, assigned, or accepted any writing, no proof of the handwriting of such person shall be required, unless the fact be denied by an affidavit with the plea which puts it in issue." ■*' The latter statute, as well as the Virginia statute, applies to 30 Corbin v. Mills, 19 Gratt. *i See same cit.atioiis. (Va.) 465; Bell v. Moon, 79 Va. i^'Va. Code, 1904, §3279. 341. See ante, § 465. " W. Va. Code, 1913, c. 125, § 40. 40 Kin<' V. ilalone, 31 Gratt. (Va.) 168, 169. See ante, §46.5. 693 Evidence §■ 537 chancery pleadings.^* These statutes are broad and compre- hensive, and when any of the acts contemplated by them is alleged in any pleading to have been done, as the making of a writing for instance, such fact is admitted, unless the denial of such allegation is accompanied by affidavit.''^ Thus, where the bill alleges the drawing of an order by one of the defend- ants, which is filed with the bill,''^ or an answer avers the de- livery of certain receipts which are filed with the answer,"*' the genuineness of each of these writings is admitted in the absence of a denial of the fact by affidavit, and no proof can be heard for the purpose of impeaching their genuineness.^* And an answer under oath denying the genuineness of a writing set up in the bill puts the execution in issue and imposes upon the plaintiff the burden of establishing the same by proof.^' But there is no further admission under this statute than the gen- uineness of the writing, when the matter is denied by the plead- ing unaccompanied by affidavit.^" Thus, a pleading which avers that certain notes were transferred to the plaintiff after ma- turity is not within the statute. A general denial puts such fact in issue, and it must be shown by proof to be true.^"^ The writing must always be proved when denied by affidavit. Its genuineness is then, of course, never admitted.^^ It is further provided by statute in the Virginias that where plaintiffs or defendants sue or are sued as partners, and their names are set forth in the declaration or bill, or where they sue or are sued as a corporation, the fact of the partnership or incorporation is admitted, and proof of it is unnecessary, <4 Robinson v. Dix, 18 W. Va. *8 Maxwell v. Buibridge, 44 W. 542. Va. 248, 28 S. E. 702. ■IS Robinson v. Dix, 18 W. Va. ^» Harnsberger v. Cochran, 82 Va. 542; James River & K. Co. v. Lit- 727, 1 S. E. 120; Horner v. Amick, tlejobn, 18 Gratt. (Va.) 53; Loar 04 W. Va. 172, 61 S. E. 40. V. Wilfong, 63 W. Va. 306, 314, 61 "o Clason v. Parrish, 03 Va. 24, S. E. 333; Mankin v. Davis, 82 W. 24 S. E. 471. Va. 757, 97 S. E. 206. oi Jdem "James River & K. Co. v. Little- 5. Piedmont Bank v. Hatchei, 94 John, 18 Gratt. (Va.) 53. or q w t;n>: 47 Maxwell v. Burbridgf, 44 W, ^a. 220, 26 is. Ji. 505. Va. 248, 28 S. E. 702. §538 Equity Procedure 694 unless it be denied by affidavit aceompanying the plea putting the matter in issue. ^^ It is not necessary that the pleading state that the plaintiff or defendant, as the case may be, is a corporation.^' It is sufficient if the pleading indicate the fact of incorporation, as from the name itself for instance.^^ But where one sues in a representative capacity, as administrator or executor, for example, he must both allege and prove the existence of the capacity in which he sues.^^ In the absence of such a statute as that now under consideration, upon a plead- ing which operates as a denial of the corporation or partnership, the existence of the same must be established by proof.^^ Of course, if the affidavit be filed denying the partnership, or cor- poration, its existence must be proved.^' § 538. Actual admissions on the record — Admissions made by the bill. Actual admissions on the record are those which appear in the bill or answer ; ^^ but to these may properly be added those admissions which appear in a special reply in writing to an answer in the nature of a cross-bill setting up a claim to affirma- tive relief. •"Va. Code, 1904, §3280; W. Va. 76 W. Va. 608, 702, 86 S. E. 753, Code, 1913, c. 125, §41; Carlon v. and cases cited. The rule was RufiFner, 12 W. Va. 297 ; Hall v. otherwise under former decisions. Lyons, 29 W. Va. 410, 1 S. E. 582; McDonald v. Cole, 46 W. Va. 186, Board of Education v. Board of 32 S. E. 1033. Trustees, 78 VV. Va. 445, 88 S. E. s? Anderson v. Kanawha Coal Co., 1099. 12 W. Va. 526; Central iL. Co. v. siGillett V. The American Stove Calhoun, 16 W. Va. 361. and I-Iollow Ware Co., 29 Gratt. =8 The affidavit must unqualified- (Va.) 565; Belle-Mead Lumber Co. ly negative tlie existence of the V. Turnbull, 77 W. Va. 349, 87 S. corporation, and the denial must E. 382; Board of Education v. not be restricted to the time as of Board of Trustees, 78 W. Va. 445, the institution of the suit. Eich- 88 S. E. 1099. mond Union Pass. Ry. Co. v. New T.5 See same citations. York Seabeach Ry. Co., 95 Va. 386, 50 Austin V. Calloway, 73 W. Va. 28 S. E. 573. 231, 80 S. E. 361, Ann. Cas. 1916E, ^'3 1 Daniell, Ch. PI. and Pr. 112; Brogan v. Union Traction Co., (Gth Am. Ed.), 838. 695 Evidence §• 539 The facts positively alleged in the bill are admissions in favor of the defendant, and need not be proved by other evidence ; for whether true or not, the plaintiff by introducing them into his bill, and making them part of the record, precludes him- self from afterwards disputing their truth.^" But a bill in a suit for divorce constitutes an exception to this rule, as no admission in the bill can be taken as true, so that all its material averments must be established by inde- pendent proof." But where the answer is responsive to the bill, the defendant is entitled to the ben<>fit of it, as in other cases in equity.^^ § 539. Actual admissions on the record further considered — Admissions made by the answer. "WTiere a fact is alleged in the bill and admitted by the answer, such admission is conclusive as to the defendant making it,*^ and no proof will be heard against the truth of such fact," even if the answer be not sworn to ; for being an admission of record, it is such fact, and not the oath, that creates the estop- pel."^ Thus, an answer admitting the correctness of a copy of a deed made by another person, to which there was no sub- so i Daniell, Ch. PI. and Pr. (6th 02 Latliam v. Latham, 30 Gratt. Am. Ed.), 838; 1 Bart., Ch. Pr. (Va.) 307. (2nd Ed.), 421; Clark V. Clark, 70 «3 Piitorbaugh, Ch. PI. and Pr. W. Va. 428, 74 S. E. 234; Blanehard (3rd Ed.), 170, 171, citing Weider V. Dominion Nat. Bank, 125 Va. 586, v. Clark, 27 111. 251. See also, 100 S. E. 463. But such admissions Home Ins., etc., Co. v. Myer, 93 111. are conclusive only when made in 271; Sliirley v. Long, 6 Rand. (Va.) the same case in which they are 764; Morrison \. Leach, 75 W. Va. used as evidence. Bartlett v. Bank 468, 84 S. E. 177; Halstead v. Aliff, of Mannington, 77 W. Va. 329, 87 78 W. Va. 480, 89 S. E. 721. S. E. 444; Teter v. Moore, 80 W. 64 Puterbaugli, Ch. PI. and Pr. Va. 443, 93 S. E. 342. (3rd Ed.), 171; Toney v. Moore, 4 61 W. Va. Code, 1916, e. 64, §8; Stew. & P. (Ala.) 347; Shirley v. Va. Code, 1904, S2260; Hampton Long, Rand. (Va.) 764; Evans V. Hampton, 87 Va 148, 12 S. E. ,. i]„frn,an, 1 Hal. Ch. (5 N. J. 340; Latham v. Latham, 30 Gratt. t- , .,., ^ ii -r. , (Va.) 307; Trough v. Trough, 59 ^'I> •*•"'■■ T.ippmcott v. Eidgway, W. Va. 464, 53 S." E. 630, 4 L. R. 3 Stock. (11 X. J. Eq.) 526. A. (N.S.) 1185, 115 Am. St. Rep. use Am. and Eng. Doc. Eq. 102, "'*"■ note, citing Uhlman v. Arnholt S(, §540 Equity Procedure 696 scribing witness, is evidence, both of the contents and execution of the deed, against the party making such admission.*^ So, where suit has been brought to foreclose a mortgage which has been destroyed, and the defendants admit its execution and assignment, they will not be heard to complain that the contents and assignment of the mortgage have not been suflficiently proved." An admission by a defendant in answer to a bill for divorce is without effect for the purpose of establishing the grounds for divorce, and the plaintiff must prove his entire bill as if no such admission had been made."* However, an admis- sion in the answer may be read for the purpose of showing that the marriage sought to be dissolved exists.*' § 540. Actual admissions on the record, further considered — Admissions made by the answer further considered. Nothing will be held to be an admission made by an answer unless it is expressly admitted.'" Thus, in the absence of a statute, an admission of an allegation in a bill will not be im- plied from the insufficiency of the answer to it.'^ Nor will an admission in the answer avail the plaintiff in his suit unless the Schaeffer Brewing Co., 41 Fed. 360 Miller v. Payne, 4 111. App. 112 Durfee v. McClurg, ,6 Mich. 223 A mere offer in an answer to compromise the matter in dispute is not an admission. Hart v. Kana- Shook V. Proctor, 27 llicli. 349, wlia Oil Co., 79 W. Va. 161, 90 S. 377. E. 604. «6 Adams v. Slielby, 10 Ala. 478. A fact admitted in an answer 87 Chickering v. Fullerton, 90 111. sliould be considered in connection 520. with other facts alleged. Garten 68 W. Va. Code, 1916, c. 64, §8; v. Layton, 76 \Y. Va. 63, S4 S. E. Va. Code, 1904, §2260. 1058; Ecager's Admr. v. Cliap- 09Hitclicox V. Ilitchcox, 2 W. Va. pclcar, 104 ^'a. 14, 51 S. E. 170. 435. fi/rfem, 930, citing White v. 70 1 Enc. PI. and Pr., 929, citing Wiggins, 32 Ala. 424; Savage v. Morris v. Morris, 5 Mich. 171; Benham, 17 Ala. 119; Parkman v. Morris v. Hoyt, 11 Mich. 9; Young Welch, 19 Pick, (:Mass.) 231. V. McKee, 13 Mich. 5.52; Ilardwick But in West Virginia, an allega- V. Bassctt, 25 Mich. 149. See also, tion m the bill not denied by the Cushman v. Bonfield, 139 III. 219, answer is admitted. Ante, §§ 42S, 28 X. E. 937. 535. 697 Evidence § 541 matter has been put in issue by proper averment in the bill.'^ Nor can an admission in an answer of a conclusion of law alleged in the bill avail the plaintiff anythingj^ But where the alle- gations of the bill are sufficiently admitted by the answer, a decree may be rendered in the cause without other proof than such admissions.'* § 541. Actual admissions on the record, further considered — Relieving^ from improvident admissions made in an answer. Courts manifest great liberality in relieving from admissions made in unsworn answers, which are usually signed by counsel,'^ and often are drawn in the absence of the defendant, after a hurried consultation with him and upon a hasty and even super- ficial examination of the facts upon which the defense rests ; but when an answer is under oath, great caution is observed in the matter of relieving from such admissions.'" Under any circum- stances it ought to appear that the admission was the result of improvidence or mistake, which ought to be shown by affidavit." It it said that no court ought to relieve a party from the conse- quences of a reckless misstatement under oath.'* It should also be shown that the admission related to a fact not within the defendant's own knowledge, that he was erroneously informed in regard to it, and made oath to the answer honestly believing such erroneous information.'' If the court will relieve from the consequences of a mistaken admission, it does so by means of an order directing so much of the answer as contains the 72Hoff V. Burd, 17 N. J. Eq. 204; Tappan v. Evans, 11 N. H. .324; Halstead v. Aliff, 78 W. Va. 480, 89 Higgins v. Curtiss, 82 111. 28. S. E. 721. 75 Puterbaugli, Cli. PI. ami Pr. 73Tiddy V. Graves, 126 N. C. 620, (3rd Ed.), 171. 36 S. E. 127; Glade Coal Mining ■'oMem. Co. V. Harris, 65 W. Va. 1.52, 63 t! Idem. S. E. 873. ^sIdem. 74 Cavender v. Caveiider, 114 U. ''^Idem, citing ilalicr v. Bull, 39 S. 471, 5 S. Ct. 955, 29 L. Ed. 212; 111. 531; Suydani v. Truesdale, 6 Kerr v. Love, 1 Wash. (Va.) 172; McLean 459; Coquillard v. Suydam. 8 Blackf. (Ind.) 24. §542 Equity Procedure 698 admission to be treated as no part of the record.'" Or the defendant may file a supplemental answer, correcting the mis- take ; or may correct it by amendment. Consequently, he may prove that the fact was indeed contrary to the admission made in the original answer.*^ § 542. Reading the pleadings at the hearing of the cause to show the admissions made therein. Under the English practice, it is not usual to read the bill and answer in extenso at the hearing, but only such parts thereof as relate to admissions relied on by the respective parties.'^ But in America the entire pleadings are usually read in lieu of the preliminary statement of counsel in England, ad inform- andum conscientia curiae.^^ But while the entire pleading is thus read, the party reading it is not bound to take it as a whole for the purpose of using it as evidence in the cause.** Thus, where admissions are made in one part of an answer, the plaintiff may rely upon them without being bound by the state- ments and allegations of the other parts of the same answer.'* Thus, if a fact alleged in the bill is admitted by the answer, and after stich admission the answer contains averments in avoidance of the effect of such admission, the plaintiff does not admit the truth of the matters averred in avoidance of the admission, by reading the entire answer and relying upon that so Puterbaugli, Ch. PI. and Pr. s^ldem. (Srd Ed.), 171. a^ Bartlett v. Gale, 4 Paige Ch. SI Hughes V. Bloomer, 9 Paige (N. Y.) 503, 3 L. Ed. 533; Hart Ch. (N. Y.) 269, 4 L. Ed. 696, and v. Ten Eyclc, 2 .Johns. Ch. (N. Y.) note, citing Arnaud v. Grigg, 29 N. 62, 91, 1 L. Ed. 296, note, and J. Eq. 3; Curling v. Townshend, 19 307, note. Ves Jr. 628; Swallow v. Day, 2 ss Bartlett v. Gale, 4 Paige Ch. Coll. C. C. 133; Bowen v. Cross, 4 (N. Y.) 503, 3 L. Ed. 533; Hart .lohns. Ch. (N. Y.) 375, 1 L. Ed. v. Ten Eyck, 2 Johns. Ch. (X. Y.) S73, note; HoUister v. Barkley, 11 62, 1 L. Ed. 296. X H. 501. As to amending an an- Nevertheless, an admission in one .=iwer, see ante, §§ 367-371. part of the answer may be qualified 8^1 Daniell, Ch. PI. and Pr. (6th by an allegation in another part. Am. Ed.), 839, note 1. ^»'*«. § 540, note 70. 699 Evidence § 544 part of it which contains. the admission of fact alleged in the bill.«« § 543. Reading' the answer of a codefendant. Ordinarily, the admissions of one defendant made in his answer can not be read in evidence for or against his codefend- ant, but this rule does not apply where the defendant claims through him whose answer is proposed to be read, nor to cases where the defendants are jointly interested in the transaction in question, as partners or otherwise.*'' An answer may be read against a codefendant where the latter refers to that of a defendant for further information.*' And it has been held that where the answer in question is unfavorable to the plaintiff, and is responsive to the bill by furnishing a disclosure of facts required, it may be read as evidence in favor of a codefendant, especially where the latter defends under the title of the for- mer.*^ On the hearing of an issue between eodefendants, an admission in an answer of one of the defendants may be read, although the answer containing the admission was filed at a previous stage of the cause and upon the main issues of the § 544. Matters judicially noticed need not be proved. Those matters of which the courts take judicial notice need not be proved,"^ and averments in pleadings at variance with such facts will be disregarded on demurrer,"^ as we have already hereinbefore shown. ^' The general principle of judicial notice extends to find covers: (a) matters which are so notorious that the production of evidence would be unnecessary; (6) matters so See same citations. s" 3 Grcenleaf, Ev. (8th Ed.), S7 3 Glecnleaf, Ev. (Stii Ed.), §28.3. §28.3; ] Mem. (Ifitli Ed.), § 178, and "" irorrison v. Leach, 7.5 W. Va. cases cited. 468, 84 S. E. 177. 8S3 Greenleaf, Ev. (Stli Ed.), "i 1 Beach, Mod. Eq. Pr., §.517; §283. Examine 1 Greenleaf, Ev. 1 Greenleaf, Ev. (16th Ed.), §§3, (16th Ed.), §§ 178-182, and author- 3a. ities cited. "= 1 Beach, Mod. Eq. Pr., §517. ^sAnte, § 421. § 545 Equity Procedure /OO the judicial function supposes the judge to be acquainted with, either actually or in theory; (c) sundry other matters not strictly falling under the two former heads.'* § 545. Matters judicially noticed. It is not intended to enumerate here all those manifold mat- ters of fact of which judicial notice may he taken, but only those of a general nature, and such as usually occur in practice. Judicial notice will be taken of the political divisions of a state, such as its counties and towns, and its general geography.'' Judicial notice will be taken by a state court of who are the judges of the various courts of record of the state and their terms of office, of the organization and' jurisdiction of such courts,'^ and of the signature of any of the judges, or of the governor of the state, to any judicial or official documents." A court will take judicial notice of who is its clerk.'* Courts will judicially notice all matters of current public history," as the fact that in March, 1863, Confederate states treasury notes were the only currency in circulation in the state of Virginia,-""' as well as any other authentic historic fact; and all local and private,^"^ as well as public, acts of the legislature.^'^ In "West Virginia, whenever it becomes material to ascertain what the law, statutory or other, of another state or country or of the 94 1 Greenleaf, Ev., § 4. See "o Walker v. Page, 21 Gratt. Lewis Hubbard & Co. v. Montgom- (Va.) 636. ery Supply Co., 59 W. Va. 75, 86- ^oi Groves v. County Court, 42 87, 52 S. E. 1017, 4 L. R. A. (N.S.) W. Va. 587, 26 S. E. 460. 132. lo^ Wikel v. Board of Comrs., 120 »■'! Beach, Mod. Eq. Pr., §517; N. C. 451, 27 S. E. 117; Farmers' Lockwood V. Charleston Bridge Co., Bank v. Willis, 7 W. Va. 42, 43; 60 S. C. 492, 38 S. E. 112. Stribbling v. The Bank, 5 Rand. so Idem; State v. Ray, 97 N. C. (Va.) 132; Hayes v. Northwestern 510, 1 S. E. 876. Bank, 9 Gratt. (Va.) 132; Satter- o? W. Va. Code,' 1913, c. 130, § 3; field v. Com., 105 Va. 867, 52 S. E. Va. Code, 1904, §3332. 979; Board of Education v. Berry, 98 Central Land Co. v. Calhoun, 62 W. Va. 433, 59 S. E. 169, 125 16 W. Va. 361. Am. St. Rep. 975; Squilache v. 99 Walker v. Page, 21 Gratt. Tidewater Coal & Coke Co., 64 W. (Va.) 636; Frank v. Gump, 104 Va. Va. 337, 62 S. E. 446. 306, 51 S. E. 358. 701 Evidence § 546 United States is or was at any time, the court, judge, or magis- trate shall take judicial notice thereof, and may consult any printed book purporting to contain, state or explain the same and consider any testimony, information or argument that is offered on the subject.'"' In the absence of statute the laws of another state or country must be proved."^ In Virginia, the courts will not take judicial notice of the laws of a sister state, but they must be proved.'"^ § 546. Matters judicially noticed, further considered. Courts will talie judicial notice of common abbreviations of Christian names,'"* of the incorporation of a railroad com- pany,"" of the population of a county as established by the census of the United States,'"* and of the seal of a notary pub- lic. ■"" And it is not necessary to prove things which must have happened according to the ordinary course of nature ; nor to prove the course of time, or of the heavenly bodies; nor the ordinary public fasts and festivals ; nor the coincidence of days of the week with days of the month ; nor the succession of the 103 W. Va. Code, 1013, c. 13, §4; 64 Am. St. Rep. 715; 1 Rice, Civ. State V Goodrich, 14 \A'. Va 842; jj^ gg. App v. App, 106 Va. 253, Singer Mfg. Co. v. Bennett, 28 W. -^ „ t- a-ii, ^ n r. ,«o Va. 16; Wilson v. Phoenix Powder ^^ S. E. 672; Dowell v. Cox, 108 Co., 40 W. Va. 413, 21 S. E. 1035, Va. 460, 62 S. E. 272. But, in the 52 Am. St. Rep. 890, 12 L. R. A. absence of proof, there is » pre- l^'k ^^^^'S'^^"'-^^'^"'^!' ^^ ^,- ^^- sumption that the common law pre- 766, 24 S. E. 592; Somerville v. ., . . ^ ^ ^ i,, 5 . Wimbish, 7 Gratt. (Va.) 205; Cen- ^'^'^^ '" ^ ^'^t"' ^^^^^- Mountain tral Trust Co. of 111. v. Hcarne, 78 Lal., Prac, 249; 1 Gleen]., Ev., Ante, §537. § 5, note.^ i„e Welcli v. County Court, 29 W. 105 Union Cent. Life Ins, Co v. Vn fi'i i =; F 9'?7 Pollard, 94 Va. 146, 26 S. E. 422, Z,,, fv 7 1„„,^ ^, . . . ' i"» 1 Greenl., Ev. (16th Ed.), §5. § 547 Equity Procedure 702 seasons; nor the meaning of words, or abbreviations of words, in the vernacular language; nor the matters enumerated in the official census (at least so far as general figures of population are concerned) ; nor the legal weights and measures; nor any matters of public history affecting the whole people ; nor public matters affecting the government of the country.^^" A court will also take judicial notice of all prior proceedings in a cause pending before it,''-''' that the ease before the court had connection with one formerly decided by it,^^^ of its own records,^^' of the towns that exist within the state,-"" and of legislative journals and the modes by which domestic laws are authenticated. ^^^ § 547. Matters not judicially noticed. A court will not take judicial notice of the by-laws of a corporation,'" nor of municipal ordinances unless expressly directed by statute, ''' nor of judicial proceedings pending in a federal court,''* nor that a railroad company under its charter condemned or acquired title to any particular land or strip of land.i" 110 idem. 11* /(iem, 21. ml Rice, Civ. Ev., 18; Sands v., us Wem. 35. Stagg, 105 Va. 444, 52 S. E. 633, n" Simpson v. South Carolina 54 S. E. 21. Mut. Ins. Co., 59 S. C. 195, 37 S. 112 1 Riee, Civ. Ev., IS, citing E. 18. Banks v. Burnam, 61 Mo. 76. But n' Moore v. Town of Jonesboro, in West Virginia it is lield that a. 107 Ga. 704, 33 S. E. 435; Mounds- court will not take judicial notice ville v. Velton, 35 W. Va. 217, 13 of proceedings in a diflferent suit, S. E. 373; Western & A. R. Co. v. though in the same court. Pickens Young, 81 Ga. 307, 7 S. E. 012, 12 V. Coal River Boom Co., 66 W. Va. Am. St. Rep. 320; Korfolk & P. T. 10, 65 S. E. 865, 24 L. R. A. (X.S.) Co. v. Forrest's Admx., 109 Va. 658, 354. 64 S. E. 1034. 113 1 Rice, Civ. Ev., 19, citing us 1 Rice, Civ. Ev., 18; Robinson Taylor v. Adairas, 115 111. 570, 4 v. Baltimore & 0. R. R. Co., 64 W. N. E. 837; Lambeth v. Sentell, 38 Va. 406, 63 S. E. 323; Collins v. La. Ann. 691; National Bank v. Board of Trustees of D. and E. Col- Bryant, 13 Bush. (Ky.) 419; Rob- lege, 72 W. Va. 583, 79 S. E. 10. inson v. Brown, 82 111. 279; Platter "» Chapman v. P. & S. R. Co., 18 V. Elkhart County, 103 Ind. 360. W. Va. 184. 703 Evidence § 54S § 548. The principle underlying the doctrine of judicial notice. The principle upon which courts dispense with proof as to certain facts, and take notice of their existence without the introduction of any formal evidence to establish them, rests upon the doctrine that what is generally or commonly accepted or known to ordinarily intelligent people, or is within the range of common intelligence, may safely be accepted as true, and that to require proof of what is generally known would be both use- less and unnecessary.*^" As said by an able and careful writer, "facts which are so generally known that every well-informed person knows them, or ought to know them, need not be proved and will be judicially recognized without proof. "*^* Again, it is said that no proof is required of facts which everybody is presumed to know, and that when such facts become material, it is the duty of courts and jurors to take notice of and act upon them without proof.*^^ The common knowledge here spoken of need not necessarily be that with which the court is actually familiar, but includes such as may certainly be obtained; so that "the court will of its own motion advise itself so as to verify matters of which it is required to take judicial notice." *^' 1=0 Richmond Union Pass. Ey. Co. Eep. 41; Lewis Hubbard & Co. v. V. Richmond F. & P. R. Co., 96 Va. Montgomery Supply Co., 59 W. Va. 670, 32 S. E. 787: State v. Hirsch, 75, 86-87, 52 S. E. 1017, 4 L. R. A. 125 Ind. 207, 24 N. E. 1062, 9 L. (X.S.) 132; Southern Railway Co. R. A. 170: Daggett v. Colgan, 92 v. Blanford's Admx., 105 Va. 373, Cal. 53, 28 Pac. 51, 14 L. R. A. 378, 54 S. E. 1. 474, 27 Am. St. Rep. 95; State v. 121 1 Tayl., Ev. (Am. Ed.), p. 21, Cunningham, 81 Wis. 440, 51 N. W. note 36. 724, 15 L. R. A.,5C1; Downey v. i-'2 Chicago, B. & Q. R. Co. v. Hendrie, 4G Midi. 498, 9 N. W. Warner, 108 111. 538, 18 Am. and 828, 41 Am. Rep. 177; Miller v. Eng. R. Cas. 100; L. & N. R. Co. Texas & X. 0. R. Co., 83 Tex. 518, v. Bolond, 96 Ala. 626, 11 So. 667, 18 S. W. 954. See Olive v. State, 18 L. R. A. 260. 4 L. R. A., and note, pp. 33-44; i=3 1 Beach, Mod. Eq. Pr., §517. Joliett V. Shufelt, 144 111. 403, 32 For a further consideration of N. E. 969, 36 Am. St. Rep. 453, 18 the subject of "Judicial Notice," see L. R. A. 750; State ex rel. Weiss McKelvey on Evidence, pp. 16-37; 1 V. District Board, 76 Wis. 177, 7 L. Rice, Civ. Ev., 13-47. R. A. 330, 4 N. W. 967, 20 Am. St. §550 Equity Procedure 704) § 549. The competency of witnesses. At eommon law a person interested in the result of the suit eould not testify as a witness in the cause,'^* but this rule has been abrogated by statute in Virginia and West Virginia, so that no person offered as a witness in any civil action, suit or proceeding, shall be excluded by reason of his interest in the event thereof, or because he is a party thereto.^^^ To this statute there are some exceptions and qualifications which will be noticed in subsequent sections.-'^'* § 550. When aja interested party, or party to the suit, can not testify as a witness in West Virginia. In West Virginia "no party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal trans- action or communication between such witness and a person at the time of such examination, deceased, insane or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such person, or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or com- munication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or com- mittee shall be examined on his own behalf, nor as to which the testimony of such deceased person or lunatic shall be given iu evidence ; Provided, however, That where an action is brought for causing the death of any person by wrongful act, neglect or default under chapter one hundred and three of the Code, the physician sued shall have the right to give evidence in any case in which he is sued ; but in this event he can only give evi- 1=4 1 Greenl., Ev. (lOtli Ed.), Practically llio same statute obtaiirs §§ 32Sb, 328c; Adams, lOq. (Sth in Virginia and is found in Va. Ed..), 363, 364. Code, 1!) 27 W. Va. 16; Carskadon v. Va. 494, 10 S. E. 817. Minko, 26 W. Va. 729; Carter v. 141 For furtlier illustrations of CiH, 47 W. Va. 504, 35 S. E. 828. the principle stated in the text, see o ± i ■ , i i>. '^ '^ See cases cited infra, note 144. §552 Equity Procedure 708 and heirs at law are examined as to such communication or transaction in their own behalf, or the testimony of such de- ceased person touching the same is given in evidence.**^ So, a surviving member of a partnership in a suit on a firm note against the personal representative of a deceased partner, can not show that the deceased was a member of the firm from com- munications had with the deceased.-'" So a donee is incompe- tent as a witness to prove the delivery to himself of a gift by the donor, the latter being dead when the testimony is offered.-'*^ "2 Huntington & K. Land Devel- opment Co. V. Thornburg, 46 W. Va. 99, 33 S. E. 108. Tlie rule is gen- eral tliat a party protected by the exception in tlie statute waives its benefit l)y liinisclf offering evidence as to a transaetion with a deceased jjerson or insane person. Wool- dridge v. Wooldridgc, 60 ^Y. Va. .554, 72 S. E. 6r)4, Ann. Cas. l!)l:iB, 653; Painter v. Long, 69 W. Va. 765, 72 S. E. 1092. 143 Charlotte Oil and F. Co. v. Rippy, 123 N. C. 656, 31 S. E. S79. 14* Lee V. Patton, 50 W. Va. 20, 40 S. E. 353. Of course the witness, in order to disqualify him, must have some such substantial and subsisting in- terest in the litigation as would tend to color his testimony. "Com- petency as to interest is tested, not by the time when a deposition is actually taken, but by the time when it is offered in evidence. Mea- bright v. Seahri(jht, 28 W. Va. 412; Taiiscoy v. Slincheomh, 29 W. Va. 263; 1 Wigmore on Kv., § 583. But, suppose he had not paid tlic notes, Eathbone was nevertheless eoni|)e- tent. The test as to interest is not whether the witness may be interested in the question in issue, or may entertain wishes on the sub- ject, or may even have occasion to test the same question in a future suit, but whether the proceeding can be used as evidence for him in some pending or future suit. He must have an interest to be affected by the result of the suit, or by force of the adjudication. Tliis was the common law rule, which pre- vails in this state. An early law writer on evidence. Chief Baron Gilbert, as quoted by Chief Justice Tindal, in Doe v. Tyler, 15 Eng. Com. L. Rep. 112, says: 'The law looks upon a witness as interested, when there is a certain benefit or disadvantage to the witness attend- ing the consequence of the cause one way.' And in the same case it is also said: 'Now this benefit may arise to the witness in two cases: first, where he has a direct and immediate benefit from the event of the suit itself; and, second- ly, where he may avail himself of the benefit of the verdict in support of his claim in a future action.' The common law rule is stated in the same way in 1 Greenleaf on Ev. (inth Ed.), Appendi-x; II, §390, p. 883. See also. Rich v. Topping, 1 Peake's 'Sisi I'rius Cases, 293 ; Brard V. Ackerman, 5 Day's Espinasse's Rep., 119; and Burgess v. Merrill, 709 Evidence §553 § 553. What is a personal transaction or communication with a deceased or insane person within the meaning of the law. A broad and liberal construction is given to the words "per- sonal transaction,"" in order to carry into effect the true spirit and meaning of the law, and avoid the evils against which it was designed to guard.' ^•' The decisions of the Court of Appeals of West Virginia, in effect, hold that conversations had with the deceased or insane person at any time, though not on the subject 4 Taunt. Rep. 468." Sayre v. Woodyard, 66 W. Va. 288, 293-294, 66 S. E. 320, 28 L. R. A. (N.S.) 388. "The interest in the result of a suit which will exclude a witness under § 23, e. 130, Code, must be a present, certain, vested interest, not uncertain, remote or contingent, though, if such, it matters not how small the interest." Hudkins v. Grim, 64 W. Va. 22.5, 61 S. E. 166. Mere relationship to a party to the cause does not make a witness incompetent. Thus, a plaintiff's son is not incompetent to testify on be- half of the plaintiff. Hollen v. Crim and Peck, 62 W. Va. 4.51, 59 S. E. 172. And a father may testify on behalf of his infant child suing for services rendered, when it appears that he has relinquished his right to the child's earnings by emancipation of the child. Weese v. Yokum, 62 W. Va. 550, 59 S. E. 514. But husband^ and wife are incompetent to testify on behalf of each other, on the theory, or fiction, of unity of person. Freeman v. Freeman, 71 W. Va. 303, 76 S. E. 657; Cassady V. Cassady, 74 W. Va. 53, 81 S. E. 829. Contra, Painter v. Long, 69 W. Va. 765, 769, 72 S. E. 1092, 31 L. E. A. (X.S.) 588; Hudkins v. Crim, 64 W. Va. 225, 61 S. E. 106. The latter case holds that the hus- band's contingent right to curtesy is too remote to make him incom- petent. The fact that a procheiii ami is liable for costs makes him an incompetent witness on behalf of his infant plaintiff. Cooper v. Cooper, 65 VV. Va. 712, 64 S. E. 927. A creditor asserting his claim before a commissoner against the es- tate of a decedent is incompetent to testify as to a transaction be- tween himself and the decedent for the purpose of establishing his claim. Bank of Union v. Kickell, 57 W. Va. 57, 49 S. E. 1003. A de- fendant may testify to payment at the direction of the plaintiff, to a person since deceased, provided the plaintiff is not suing as a represent- ative of the deceased party, but seeks recovery on a promise between himself and the defendant. Shuman V. Shuman, 79 VV. Va. 445, 91 S. E. 264. And a. husband may testify adversely to the heirs of his de- ceased wife as to the delivery by her of a deed to her grantee. Cart- right V. Cartright, 70 W. Va. 507, 74 S. E. 655, Ann. Cas. 1914A, 578. 1*5 Robinson v. James, 29 W. Va. 224, 11 S. E. 920; Seabright v. Sea- bright, 28 W. Va. 461; Owens v. §553 Equity Procedure 710 in controversy, but which tend to prove facts which would go to show that the subject in controversy should be decided against the interests of those representing the decedent or lunatic, can not be proved by the witness who is interested in the suit, or is a party to it.^" The authorities also hold that the phrase "transaction or communication" does not necessarily mean a transaction or communication face to face, or by the parties in the actual and mutual conscious hearing and presence of each other.^*' But testimony as to the handwriting of a party is not regarded as a transaction or communication within the meaning of the statute.^^^ It has been held that the statute excludes all Owens, 14 W. Va. 88; Calwell v. Prindie, 11 W. Va. 321; Anderson V. Cianmer, 11 W. Va. 562-576; Freeman v. Freeman, 71 W. Va. 303, 76 S. E. 6.57; Davidson v. Brown- ing, 73 W. Va. 276, 80 S. E. 363, L. E. A. 1915C, 976. 140 See cases cited in tlie last foot- note. nTFouse V. Gilfillan, 45 W. Va. 213, 32 S. E. ITS, citing Daniels V. Foster, 26 Wis. 686. See Rogers V. Chambers, 112 Ga. 258, 37 S. E. 429. 148 Hefflebower v. Detrick, 27 W. Va., at pp. 22, 23; Johnson v. Bee, 84 W. Va. 532, 100 S. E. 486. And a party may testify as to his metli- ods of doing business, for instance, as to his method of signing checlis. Davidson v. Browning, 73 W. Va. 276, 80 S. E. 363, L. R. A. 1915C, 976. Observations as to testamentary capacity are held to come within the definition of "personal trans- actions or communications" within the meaning of the statute. "The purpose of § 23, o. 130, Code, is to prevent a person having an interest to be affected by the suit from giving testimony concerning the words, or actions of a decedent, which he, if living, could contradict, against tliose wjio claim under the decedent. Death Iiaving sealed the lips of one, tlie law closes the mouth of the other. Therefore, the words 'transactions or communications,' as used in the statute, should be given a liberal construction. To limit their meaning so as to include only individual conversations and direct personal dealings between the wit- ness and deceased, would be too nar- row a construction, and would re- sult in defeating the purpose of the statute in many cases. The words of the statute include personal con- tact with, and observations of, de- ceased's conduct, upon which an mental condition The opinion of a be formed in no opinion of his could be formed, nonexpert could other way. "'A "transaction" within the meaning of the statutes under dis- cussion is an action participated in by witness and decedent, or some- thing done in decedent's presence, to which, if alive, he could testify of his personal knowledge, and the term embraces every variety of af- fairs, the subject of negotiations, actions, or contracts. It has also been said that personal "transac- 711 Evidence § 554 evidence of work or laboT performed or acts done, given by the party interested, or a party to the suit, which would create or tend to create a liability against the estate or interests of such deceased or insane person, whether the work was performed in or about the presence of the deceased.^*^ § 554. When a party incompetent to testify as a witness in Virginia. As we have stated,^^" as a general rule no person is incom- petent to testify as a witness in Virginia because of interest ; ^^^ but "where one of the original parties to the contract or other transaction, which is the subject of the investigation, is incapa- ble of testifying by reason of death, insanity, infancy, or other legal cause, the other party to such a contract or transaction, shall not be admitted to testify in has own favor or in favor of any other person whose interest is adverse to that of the party so incapable of testifying, unless he be iirst called to testify in behalf of such last mentioned party; or unless some person, having an interest in or under such contract or transaction, derived from the party so incapable of testifying, has testified in behalf of the latter or of himself as to such contract or transaction ; or unless the said contract or transaction was personally made or had with an agent of the party so incapable of testifying, and such agent is alive and capable of testifying. " "^ To render a party tions" and "communications" with transaction or communication be- a, person since deceased include twcen the testator and any other every method by which one person person witliin the meaning of the can derive any impression or in- statute. Willsdtness in Virginia where the contract is made with an agent. It is further provided by statute in Virginia that, "where such contract or transaction was personally and solely made or had with an agent of one of the parties thereto, and such agent is dead or otherwise incapable of testifying, the other party shall not be permitted to testify in his own favor or in favor of a person having an interest adverse to the principal of such agent, unless he be first called to testify on behalf of said principal or some person claiming under him, or the testimony of such agent be first read or given in evidence by his principal or other person claiming under him, or unless the said principal iin Gri^'sby >. Pirnjjson, 28 Gratt. !<•"> Burkholdcr v. Ludiam, 30 (Va.) 348. Gratt. (Va.) 25.'), 32 Am. Rep. 668. 715 Evidence § 557 has first testified.""* Under this statute, in order to render a party to the contract incompetent to testify as a witness after the death of the agent of the party by whom the contract on one side was made, the contract must have been personally and solely made with such agent, ^*' and the party contracting by and through an agent must have been a natural person ; ^** because, if the contract be made with a corporation, the death of its agent does not operate to preclude the other party to the con- tract from testifying as a witness, for the reason that a corpora- tion is not within the purview of the statute.^^' And the agent who made the contract on behalf of one of the parties is a com- petent witness, though the other party be dead at the time his testimony is given.^'" And if the agent be living, the surviving party to the original contract may be a witness as to all matters occurring between him and the agent of the deceased party.^'^ § 557. At what stage of the cause the competency of evidence is determined. In West Virginia, the competency of a witness whose evidence is sought to be used in the cause must be determined as of the time when it is proposed to read the deposition as proof, and not as of the time when the deposition was taken."^ In Virginia, the rule is otherwise ; and if the witness be competent when his deposition is taken, his testimony can not become inadmissible by later events.''^ i6«Va. Code, 1!H)4, §3348. S. E.' 504; First Nat. Bank v. 16T Mutual Life Ins. Co. v. Oliver, Terry's Admr., 99 Va. 194, 37 S. E. 95 Va. 445, 2S S. E. 5!)4. 843. msldem; Fanners' llfg. Co. v. "i Tielierd v. Clem, 86 Va. 374, 10 Woodworth, 10!) Va. 506, 64 S. E. S. E. 504. 986. 1"^ Seabriglit v. Seahriglit, 28 W. leoldcm: Kelly v. Board of Pub- Va. 412; Zane v. Fink, 18 W. Va. lie Works, 75 Va. 263; Mutual Life 693; Vanscoy v. Stinchcomb, 29 W. Ins. Co. V. Oliver, 95 Va. 445, 28 Va. 263, 11 S. E. 927; Sayre v. S. E. 594. Woodyard, 66 W. Va. 288, 293, 66 170 Kelly V. Board of Public S. E. 320, 28 L. R. A. (N.S.) 388. Works, 75 Va. 263; Mutual Life But see Moore v. Moore, 104 S. K. T n nv OK ^T AAK oo 266 (W. Va. 1920). Ins. Co. V. Oliver, 95 Va. 445, 28 173 Smith v. Profitt, 82 Va. 832, 1 S. E. 67. § 558 Equity Procedure 716 §558. Husband and wife as witnesses for and against each other in Virginia. At common law, husband and wife could not testify for or against each other."^ But since the removal by statute in Virginia of the disqualification of a witness on account of inter- est, a wife has always been permitted to testify in her own behalf in a civil suit touching her separate estate,^'^ even though the husband was a formal party to such suit;^'^ but this statute removing the disqualification of interest did not allow them to testify for or against each other, or one to testify where the rights or interests of the other were concerned, whether such rights or interests were claimed personally or in right of repre- sentation of either of them ; i" and of course, the husband could testify in his own behalf,^'^ even though the wife were a party, where she had no separate interest in the result.^" But prior to the amendment of section three thousand three hundred and forty-six of the Code of Virginia (1887),"° where husband and wife were both parties, and interested in the result of the suit, neither was a competent witness.^'^ But where one of them had parted with all interest by assignment in the subject matter of litigation, the other was a competent witness in favor of the assignee,"^ except in cases of alleged fraudulent transfers or 174 N. & W. R. Co. V. Prindle, 82 say v. McCormick, 82 Va. 479, 5 S. Va. 122; Frank v. Lilienfeld, 33 E. 534; Radford v. Fowlkes, 85 Va. Gratt. (Va.) 377. 820, 8 S. E. 817. 175 Frank v. Lilienfeld, 33 Gratt. I's Hayea v. Mut. Pro. Ass'n, 76 (Va.) 377; Hayes v. Mut. Pro. Va. 225; Wright v. SmitB, 81 Va. Ass'n, 76 Va. 225; Farley v. Tillar, 777. 81 Va. 275; Nicholas v. Austin, 82 "sRatliff v. Vandikes, 89 Va. Va. 817, 1 S. E. 132; Thomas v. 307, 15 S. E. 864. SeUman, 87 Va. 683, 13 S. E. 146. iso Va. Code, 1904, § 3346a. 170 See same citations. i8i Burton v. Mill, 78 Va. 468; I'J Warwick v. Warwick, 31 Perry v. Ruby, 81 Va. 317; Jones. Gratt. (Va.) 70, 77; Murphy v. v. Degge, 84 Va. 685, 5 S. E. 799; Carter, 23 Gratt. (Va.) 477; Fink Crabtrec v. Dunn, 86 Va. 953, 11 V. Donny, 75 Va. 663; Smith v. S. E. 1053. Bradford, 76 Va. 758; Marks v. 1S2N. & W. R. R. Co. v. Read, 87 Spencer, 81 Va. 751; N. & W. R. Va. 185, 12 S. E. 395. K. Co. V. Prindle, 82 Va. 122; Lind- 717 Evidence §558 assignments attacked by creditors, when neither was a competent witness in the cause ;'^^ and under the present statute in Vir- ginia "neither husband nor wife shall be competent to testify for or against each other in any proceeding by a creditor to avoid or impeach any conveyance, gift, or sale from the one to the other on the ground of fraud or want of consideration, but as to said transaction the existing rules of evidence shall remain unchanged." ^^* The rules and principles hereinbefore stated obtained in Vir- ginia prior to the amendment found in Va. Code, 1904, § 3346a, 1*^ whereby husband and wife shall be competent to testify for or against each other in all civil cases, except as in the act is provided.**^ 183 De Farges v. Ryland, 87 Va. 404, 12 S. E. 805. 184 Va. Code, 1904, § 3346a. 185 Passed originally in 1803 4 and amended in 1897-8. 180 The following are the excep- tions contained in the statute: "Neither husband nor wife shall be competent to testify for or against each other in any proceed- ing by a creditor to avoid or im- peach any conveyance, gift, or sale from one to the other on the ground of fraud or want of consideration; but as to said transaction the ex- isting rules of evidence shall re- main unchanged. Second, where one of the original parties to a, contract, matter, or other trans- action which is the subject of investigation is incapable of testify- ing by reason of death, insanity, infancy, or other legal cause, and the other party to such contract, matter, or transaction is made in- competent to testify by subsection two of section thirty-three hundred and forty-six of the Code of Vir- ginia, then in such case the consort of either pairty shall be incompetent to testify in relation to such con- tract, matter, or transaction: and provided, further, that nothing herein contained shall be deemed or construed to alter the existing rules of evidence as to proceedings for divorce. "Neither husband nor wife shall, without the consent of the other, be examined in any case as to any communication made by the one to the other while married, nor shall either of them be permitted, with- out such consent, to reveal in testi- mony after the marriage relation ceases any such communication made while the marriage subsisted: provided, that this exclusion shall not apply to a criminal proceed- ing for a criminal offense com- mitted by one against the other, but as to such proceeding the existing rules of evidence shall remain un- changed." § 560 Equity Procedure 718 S 559. Husband and wife as witnesses for and against each other in West Virginia. It is provided by statute in "West Virginia that, "in any civil action, suit or proceeding, the husband or wife of any party thereto, or of any person in whose behalf any such action, suit or proceeding is brought, prosecuted, opposed or defended, shall be competent to give evidence the same as any other witness on behalf of any party to such action, suit or proceedings, except that no husband or wife shall disclose any confidential communi- cation made by the other during their marriage." ^^^ Prior to the adoption of this statute '^^ husband and wife could not be witnesses for or against each other ;^^' but now they are compe- tent to give evidence the same as any other witness,^^" and, of course, may give evidence for or against each other. But where either the husband or wife is disqualified to testify as a witness in the cause, as to transactions or communications with a decedent, for instance, the other is likewise disqualified.^'^ § 560. Competency of witnesses further considered. In Virginia, "except where it is otherwise expressly provided, a person convicted of felony shall not be a witness, unless he has been pardoned or punished therefor, and a person convicted of perjury shall not be a witness, although pardoned or pun- ished. "^"^ This statute, of course, does not apply to convictions of misdemeanors.^'" In West Vii-ginia it is provided by stat- ute that no person shall be incompetent as a witness on account of race or color.^^* 187 W. Va. Code, 1913, c. 130, Caasady, 74 W. Va. .53, 81 S. E. 829; Barrett v. Andrew, 81 W. Va. 8 22. 283, 94 S. E. 144; Curtis v. Curtis, 188 Acts, 1882, c. 160. §5 W. Va. 37, 100 S. E. S.'jO. See i89\Vatkins v. Wortman, 19 W. ante, §5.52, note 144; Kimmel v. Va. 78; Anderson v. Snyder, 21 W. Shroyer, 28 W. Va. r>n.5. ir ' ' 192 Va. Code, 1904, §3898. Tlie ^^- , „, ,_- „ same statute, substantially, obtains 190 Kilgore V. Hanley, 27 W. Va. j^^ -^y^g^ Virginia. W. Va. Co(ie, 451. 1913, c. 152, § 17. 191 Kilgore v. Hanley, 27 W. Va. lo,') Barbour v. Tbe Common- 451; Freeman v. Freeman, 71 W. ^^'f^^''^- ^^ V-m. .. 130, Va. 303, 76 S. E. 657; Cassady v. g 24. 719 Evidence § 561 § 561. As to the burden of proof generally. The hurden of proof, as we have seen,"'' is the same in equity as at law;"" and, as a general rule and in the great majority of cases, it rests upon the plaintiff."' The generally accepted rule is that the burden of proof is with him who holds or asserts the affirmative of the issue."* It is said that "this proposition has long passed from the sphere of legitimate debate or serious question and is among the indisputable assertions of evidentiary law; it is sustained by a series of well considered decisions in which -the doctrine is sustained with such vigor as to leave it a matter of serious doubt if the position can ever be successfully assailed. " ^'' But, as commonly understood in practice, the burden of proof may, and does, shift.^"" That is, when the party holding the affirmative has made out by .competent evidence a prima facie case to the right asserted, the onus probandi then rests with him who would overthrow the right thus shown to exist ; ^"^ and if the opposite party does not overcome by compe- tent and sufficient proof the prima fade case already made out, the party holding the affirmative must prevail. ^"^ 195 Ante, § 533. 759. While it is often said that issPusey v. Wright, 31 Pa. 394; the "burden of proof shifts" upon 1 Daniell, Ch. PI. and Pr. (Oth Am. the making of a prima facie case, Ed.), 850, S51. strictly speaking, it does not shift, lOT 1 Eice, Civ. Ev., 109. but remains with him upon whom 198 1 Daniell, Ch. PI. and Pr. it rests in the first instance through- (6th Am. Ed.), 850; Clifton v. out the entire cause. As stated by Town of Weston, 54 W. Va. 250, Air. MeKelvey, "When the plaintiff 46 S. E. 360; 15 Encyc. Dig. Va. has introduced enough evidence and W. Va. Rep. 821, and cases to make out a prima facie case, cited. the defendant, unless he would see i9!i Rice, Civ. Ev., 110, citing the verdict for the plaintilT, must many cases. take up the case, and introduce ='"> Greenleaf, Ev. (16th Ed.), evidence to controvert or weaken § 14a;. the effect of what the plaintiflF has 2"! 1 Daniell, Ch. PI. and Pr. introduced. This is the burden of (Oth Am. Ed.), 851; MeKelvey, going forward with the evidence, Evidence, 57, 58; 1 Rice, Civ. Ev., or the 'burden of proceeding,' as 115, 116. it may be called to distinguish it 202 MeKelvey, Ev., 52, 53 ; Ragan from the 'burden of proof.' The V. Smith, 103 Ga. 556, 29 S. E. defendant may, in his turn, intro- § 562 Equity Procedure 720 § 562. The burden of proof generally — Further considered. There is no satisfactory and certain rule by which it can be determined in every ease with whom the burden of proof rests.^"' It is said that "an unfailing test adopted by the courts for ascertaining upon which side the affirmative of an issue really lies, is to consider which party would be successful if no evi- dence were given at all. "^"^ But as there are several instances wherein presumptions, either of law or fact, take the place of or stand for proof,^"^ the application of this rule must be attended with embarrassment or uncertainty, and often produce more or less confusion. It is safe to say that the burden of proof must always depend upon the nature of the case and the character or state of the pleading.^"" Thus, for illustration, if the suit is brought to set aside a will, the burden of proof as to the mental capacity of the testator is upon those claiming under the will ; ^"^ while if suit is brought to set aside a deed, the burden of proof as to the mental capacity of the grantor is upon those seeking to overthrow the deed.^"^ It has been said that affirmative alle- duce such evidence as will make it, 206 Seim v. O'Grady, 42 W. Va. in the absence of further evidence 77, 24 S. E. 994; Bryant v. Groves, on the part of the plaintiff, clear 42 W. Va. 10, 24 S. E. 605; James that the facts are in his favor; R. & K. Co. v. Littlejohn, 18 Gratt. the verdict, if the evidence stopped (Va.) at p. 77; Smith v. Miller, at this point, would be for him, and 98 Va. 535, 37 S. E. 10; Brown v. the burden of proceeding is shifted Brown, 44 S. C. 378, 22 S. E. 412; again to the plaintiff. Thus, in Newlin v. Beard, 6 W. Va, 110; the course of a trial upon the McMechen v. McMechen, 17 W. Va. various facts in issue, the burden of 684; Fink v. Denny, 75 Va. 663; proceeding may shift from one par- Perry v. Euhy, 81 Va. 317; De ty to tlie otlier. Tlie burden of Farges v. Ryland, 87 Va. 404, 12 proof, however, remains upon the S. E. 805. shoulders of the party who had it 201 McMechen v. McMechen, 17 at the outset, and is unaffected by W. Va. 684; Nicholas v. Kershner, the evidence as the trial proceeds." 20 W. Va. 251; Prentis v. Bates, McKelvey, Evidence, 53, 54. 93 Mich. 234, 53 N. W. 153, 17 L. 203Greenl., Ev. (16th Ed.), R. A. 494. See note to this case § 14a! (2). 3s to the conflict of decisions on 204 1 Rice, Civ. Ev., 110, citing 1 the principle advanced in the text. Wait, Law and Pr. (5th Ed.), 465. 20s Snodgrass v. Knight, 43 W. 2or, 1 Rice, Civ. Ev., 115; Mc- Va. 294, 27 S. E. 233; Buokey v. Kelvey, Ev., 60-68; Greenl., Ev. Buekey, 38 W. Va. 168, 18 S. E. (16th Ed.), §§ 15-74. 383; Hiett v. Shull, 36 W. Va. 563, 721 Evidence § 563 gations of an answer, not constituting a claim to aifirmative relief, but controverting the allegations of a bill not sworn to, are put in issue by a general replication, and the burden of proof as to such allegations is on the defendant.^"^ An ex parte settlement, upon the face of which no error is apparent, is 'prima facie correct ; and the burden of proof is on the plaintiff, in attacking any item in such settlement, to show that it is improper.^" So, where a trustee who has purchased property at his own sale attempts to sustain such sale by showing the ratification of the beneficiaries, the burden is on him to establish such fact.^^^ § 563. Presumptions of law and fact. Inasmuch as there arise, not infrequently, certain presump- tions of law and fact, which have an important, and sometimes a controlling, etfect upon the introduction of evidence and the ultimate determination of the cause, these will be briefly noticed before considering the burden, quantum, and character of proof in certain specific causes in equity. These presumptions are classified as those of law and fact.^^^ The former is defined as 15 S. E. 146; Farnsworth v. Noff- den of proof as to such allegations singer, 46 W. Va. 410, 33 S. E. rests upon the defendant; but if 246; Black v. Post, 67 W. Va. 253, the affirmative allegations merely 67 S. E. 1072. operate as a denial of the allega- 209 Seim v. O'Giady, 42 W. Va. tions of the hill, then the harden 77, 24 S. E. 904. The soundness of still rests upon the plaintiff to this proposition may he admitted prove the allegations of his bill to when the affirmative allegations of the same extent as if the bill had the answer are by way of confes- been opposed by negative allega- sion and avoidance. But the sylla- tions in the answer. Clifton v. bus in this case is not sustained Town of Weston, 54 W. Va. 250, by the facts. The fact is that the 260-261, 46 S. E. 360. burden of proof on the part of the 210 Dearing v. Selvey, 50 W. Va. plaintiff was sustained by title 4, 40 S. E. 478. papers filed with the bill, thus 211 Smith v. Miller, 98 Va. 535, shifting the burden to the defend- 37 S. E. 10. ant. The true rule would seem to 212 1 Rice, Civ. Ev., 51 ; Mc- be that, if the affirmative allega- Kelvey, Ev., 60-88; 1 Greenl., Ev tions of the answer are by way of (16th Ed.), §15. confession and avoidance, the bur- §563 Equity Procedure 722 a rule which, in certain cases, either forbids or dispenses with any iilterior inquiry,^'^ while a presumption of fact is an infer- ence of the existence of a certain fact arising from its necessary and usual connection with other facts which are known.^** To illustrate : If a party to a controversy fail to examine a material and important witness in his behalf, the law raises the presump- tion that such witness's evidence, if given, would be adverse to such party. -^° So, if a party have it in his power to prove a fact which, if in existence and if proven, would benefit him, his failure to prove it must be taken as conclusive that such fact does not exist. ^*'' So, vouchers which can not be produced on the new settlement, upon a bill to surcharge and falsify a former settlement, may be presumed to have existed ; and in every such case, the onus prohaiidi is thrown on the adverse party.^^^ So, a letter received in due course of mail, in response to a letter sent by the receiver, is presumed, in the absence of any showing to the contrary, to be the letter of the person whose name is signed to it.^'^ 213 Idem. 214 1 Rice, Civ. Ev., 52 ; 1 Greenl., Ev. (16th Ed.), §33. A presump- tion of fact as defined in tlie text is demonstrated by Mr. Grcenleaf as a disputable presumption of law. For the author's discussion of "presumptions of fact," see Vol. 1 (16th Ed.), §§44-48. Also see, HutsonpiUer's Adm'r v. Stover's Adm'r, 12 Gratt. (Va.) 579, 588; State V. Heaton, 23 W. Va. 773, 782 et seq. 215 Dewing v. Hutton, 48 W. Va. 576, 37 S. E. 670; Union Trust Co. V. McClellan, 40 W. Va. 405, 21 S. E. 1025; Western & A. R. Co. v. Morrison, 102 Ga. 319, 29 S. E. 104; White v. Hoster Brewing Co., 51 W. Va. 259, 261, 41 S. E. 180; Oarber v. Blatohley, 51 W. Va. 147, 155, 41 S. E. 222. The rule is the same as to documentary evidence. Stout V. Sands, 56 W. Va. 663, 49 S. E. 428. But see, Rochester Ins. Co. V. M. S. Assn., 107 Va. 701, 60 S. E. 93. But the presumption does not arise until the party carrying the burden has made a prima facie case. Cooper v. Upton, 60 W. Va. 648, 64 S. E. 523; Florence W. McCarthy Co. v. Saunders, 83 W. Va. 612, 98 S. E. 800; Hutcheson V. Savings Bank of Riclimond, 105 S. E. 677 (Va. 1920). 216 Wells-Stone Mercantile Co. v. Truax, 44 W. Va. 531, 29 S. E. 1006; Despard v. Pearcy, 65 W. Va. 140, 63 S. E. 871; Arason Coffee Co. V. Rogers, 105 Va. 51, .52 S. E. 843; Coppertliite v. Loudoun Nat. Bank, 111 Va. 70, 68 S. E. 392. 217 Campbell V. Wliite, 14 W. Va. 122. 218 Ragan v Smith, 103 Ga. 556, 29 S. E. 759, citing Scofield v. Parlin, 10 C. C. A. S3, 61 Fed. 804; 2 Whart., Ev., 1328; 1 Tayl., 723 Evidence § 564 § 564. Presumptions of law and fact — Further considered. The law indulges so many presumptions, frequently de- pendent upon the nature and situation of the case, that no attempt is made here to enumerate these various presumptions, but only to give a few of the more common and pratcieal ones. In the construction of a statute in which a word susceptible of more than one meaning is repeated in different parts of the act, a presumption arises that it is used in the same sense throughout, unless such a construction would nullify the law, when, such presumption does not obtain.^^^ In the absence of proof or information to the contrary, the law of another state will be presumed to be the same as that of the state where the court is sitting,^^" except that the common law, in many jurisdictions, is presumed to exist in the original thirteen states, and in such other states as were carved out of the original English eol- onies.^^^ In the absence of evidence the mere denial of marriage will not defeat the presumption of the legitimacy of issue, nor throw Ev., 183; 19 Am. and Eng. Ene. v. Gregory, 57 Iowa 157; Bemis v. Law, 52. If the writer's signature MeK^nzie, 13 Fla. 553; Dubois v. to such a letter is in the hand- Slason, 127 Mass. 37, 34 Am. Rep. writing of another, there is an ad- 335; Bagwell v. McTighe, 85 Tenn. •ditional presumption that he 616. See 1 Rice, Civ. Ev., 64, cit- authorized his .signature so to he iiig a long array of cases; Moun- signed. Capital Supply Co. v. tain Lake Land Co. v. Blair, 109 Beury, 69 W. Va. 612, 72 S. E. 657. Va. 147, 63 S. E. 751. 219 State V. Knowles, 90 Md. 646, 2=1 1 Rice, Civ. Ev., 64, citing 49 L. R. A. 695. 45 Atl. 877; Stokes v. Jlaclien, 62 Barb. ( X. Y. ) Postal TelegrapJi-Cable Co. v. 145; Crouch v. Hall, 15 111. 263; Farmville, etc., R. Co., 96 Va. 661, Thompson v. Monrow, 2 Cal. 99, 32 S. E. 468. 56 Am. Dec. 318; Shepherd v. 220 Brown v. Wright, 58 Ark. 20, Xabors, 6 Ala. 631; Xorris v. Har- 22 S. W. 1022, 21 L. R. A. 467, lis, 15 Cal. 226; Walker v. Walker, and note, citing among many others 41 Ala. 353; Titus v. Scantling. 4 the following cases: Osborn v. Blackf. (Ind.) SO; White v. Knapp, Blackburn, 10 L. R. A. 367, 78 Wis. 47 Barb. (X. Y.) 549; Brown v. 209; Brimhall v. Van Campen, 8 Pratt. 3 Jones Eq. 202; White v. Minn. 13, 82 Am. Dec. 118; Legg Chaney, 20 Mo. App. 389; Moore V. Legg, S Mass. 99; Territt v. v. Hood, 9 Rich. (S. C.) Eq. 311, Woodruff, 19 Vt. 182; Smith v. 70 Am. Dec. 210; Prank & Sons Smith, 19 Gratt. (Va.) 545; Hadley v. Gump, 104 Va. 306, 51 S. E. 358. §564 Equity Procedure 724 upon such issue the burden of proof of the marriage of the parents."^ The fact of cohabitation as man and wife raises the presumption of marriage.^^' Identity of names creates a pre- sumption of identity of person. ^^* The absence from home of a party for seven j'ears or more without being heard from during that time raises a presumption of his death. ^^^ The holder of a commercial or negotiable paper is presumed to have taken it under due for a valuable consideration, and without notice of any equities to which it may have been liable.^^^ Where, at the time a testator makes his will creating legacies, he has no per- sonal property, and none at his death, with which to pay the same, the law presumes an intention on the part of the testator to charge his real estate with the payment of the legacies.^^' In the absence of a transcript of the record, a judgment is pre- sumed to be regular in all respects, including the service of process.--^ The presumption, from the fact of the partition of the surface of land by parol, is that it includes the coal beneath as well as the surface, and one who denies it has the burden of proof.^^" The law always presumes good faith in transactions 2=2 Zw re Pickens' Est., 163 Ta. St. 14, 25 L. E. A. 477, 29 Atl. S75. See Suter v. Suter, 68 W. Va. 690, 70 6. E. 705, Am. Ann. Cas., 1912B, 405. ==3 State V. Schweitzer, 57 Conn. 532, 6 L. n. A. 125, 18 Atl. 787; Suter V. Suter, 68 W. Va. 690, 70 S. E. 705, Ani. Ann. Cas., 1912B, 405; EUlred v. Eldred, 97 Va. 606, 34 S. E. 477. --* Tiupci-t V. Tenner, 3.") Xeb. 587, 53 X. W. 598, 17 L. R. A. 824, and note, 824, 825; Tavenner V. Barrett, 21 W. Va. 656, 689; SAveetland v. Porter, 43 W. Va. ISO, 27 S. E. 352. =23 Boggs V. Harper, 45 W. Va. 554, 31 6. E. 943; Cone v. Dun- ham, 59 Conn. 145, 20 Atl. 311, 8 L. R. A. 647; Lawson, Presump. Ev., Rule 43, pp. 200-205; Whart., Ev. {3rd Ed.), § 12S5. See W. Va, Code, 1918, c. 86, §12; Security Bank v. Equitable Life Assurance Soc, 112 Va. 462, 71 S. E. 647, 35 L. R. A. IX.S.) 159. --<> Commercial Bank v . Burgwyn, 110 N. C. 267, 14 S. E. 623, 17 L. E. A. 326, and note citing numer- ous cases; Hatch v. Calvert, 15 W. Va. 90, 97. =-" Clotilde V. Lutz, 157 Mo. 439, 57 S. W. 1018, 50 L. E. A. 847, and brief of authorities on page 848; Davidson v. Coon, .125 Ind. 497, 25 X". E. 601, 9 L. E. A. 5S4, and note. 2=8 Bernhardt v. Brown, 118 N. C. 700, 24 S. E. 527, 715, 36 L. R. A. 402. "'oByers v. Byers, 183 Pa. St. 509, 38 Atl. 1027, 63 Am. St. Rep. 765, 39 L. E. A. 537. 725 Evidence § 565 between parties, and the onus is on the party asserting bad faith to prove it.^'" The possession of land raises a presumption of ownership, in the absence of anything to show the eontrary.^'^ A presumption arises where an attorney appears on the record for a party that he has authority to appear.^^^ § 565. The character of the evidence and burden of proof in certain cases — In matters of account. In suits involving matters of account, the questions usually arising are those relating to the mode of proof, whether by oral evidence or by means of books of account. It is well settled that if a party has rendered services for another, or has sold him one or more articles of property on credit, and he can testify upon his own personal knowledge to the rendition of the services or the sale of the property, this evidence is not only competent, but is the best evidence, and, hence, is the character of evidence called for in that particular case.^^' But, nevertheless, an account book containing the various items composing the account sued on may be introduced in evidence, when the proper grounds for its introduction have been first laid,^'* either for the purpose of corroborating the witness, or, under the proper condi- tions, as independent evidence. The first requisite for its use as evidence is that it must be a book of original entry.^^^ Sec- 230 Henry v. Buddecks, 81 Mo. But see Griffith v. American Coal App. 360. Co. 75 W. Va. 086, 69.5, 84 S. E. 231 Bradshiaw v. Aslilcy, ISO U. 621, highly commending such type S. 59, 45 L. Ed. 423, 21 S. Ct. 297. of evidence for corroborative pur- 232 Sanders v. Price, 56 S. C. 1, poses. 33 S. E. 731; Missouri Pac. R. Co. 234 Talbotton R. Co. v. Gibson, V. Fox, 56 Neb. 746, 77 N. W. 130; 106 Ga. 229, 32 S. E. 151; W. Va. County Court v. Duty, 77 W. Va. Architects and Builders v. Stewart, 17, 87 S. E. 256. 68 W. Va. 506, 70 S. E. 113, 36 L. 233 Colbert v. Piercy, 25 N. C. (3 E. A. (N.S.) 899; Griffith v. Ameri- Ired. L.) 77; Bushncll v. Simpson, can Coal Co., 75 W. Va. 686, 84 119 Cal. 658, 51 Pac. 1080; Petit S. E. 621. V. TcaJ, 57 Ga. 145; Ryan v. sssyinal v. Gihnan, 21 W. Va. Dunphy, 4 Mont. 356, 47 Am. Rep. at p. 314; Talbotton E. Co. v. Gib- 355, 5 Pac. 324; Barnes v. Barnes' son, 106 Ga. 229, 32 S. E. 151; Adm'r, 106 Va. 319, 56 S. E. 172. Hay v. Peterson, 6 Wyo. 419, 45 § 565 Equity Procedure 726 ondly, il- is essential that the entry has been made contempo- raneously with the transaction.^'* Thirdly, the entry must have been made by one in the regular course of his business, duty or employment.^''' And lastly, as a general rule, there must be personal knowledge of the transaction on the part of the one making the entry.^^* But an examination of the authorities will show that a book of accounts can not be used as evidence with- out calling the party who kept such book, to show that the entries are correct and the other requisites necessary to the use of the book as evidence,^'^ unless such bookkeeper be dead or a, nonresident of the state, ^" or unless he can not be produced as a witness because of some other reason, as for instance, in- sanity.^^^ And whether or not a foundation has been laid for the introduction of an account book is immaterial, where it is proved that the account, as contained in the book, was examined by the defendant, or his authorized agent, and admitted to be correct. In every such case the book is admissible in evidence without reference to how or by whom the book was kept or when the entries in it were made.^^^ And where there is a controversy as to whether the account in question was charged Pac. 1073, 34 L. R. A. 581; Mc- 288; Stuckslager v. Xeel, 123 Pa. David V. Ellis, 78 111. App, 381; St. 53, 16 Atl. 94; W. Va. Archi- Bishop V. Goodhart, 135 Pa. 374, tects and Builders v. Stewart, 68 19 Atl. 1026. See also note to W. Va. 506, 70 S. E. 113, 36 L. Smith V. Smith, 52 L. R. A. 576- R. A. (N.S.) 899. 583; W. Va. Architects and Build- assyinal v. Oilman, 21 W. Va ers V. Stewart, 68 W. Va. 506, 70 314. See the numerous cases cited S. E. 113, 36 L. R. A. (X.S.) 899. in the note to Smith v. Smith, 52 =30 Vina! v. Oilman, 21 W. Va. L. R. A. at pp. 595-598. But there 314; Watrous v. Cunningham, 71 are exceptions to the general rule. Cal. 30, 11 Pac. 811; Talbotton R. W. Va. Architects and Builders v. Co. V. Gibson, 106 Ga. 22!l, 32 S. Stewart, 68 W. Va. 506, 70 S. E. E. 151; Walter V. BoUman, S Watts. 113, 36 L. R. A. (XS.) 899. (Pa. I 544; W. Va. Architects and 239^-inaI v. Oilman. 21 W. Va. Builders v. Stewart, 68 W. Va. 506, at p. 312. 70 S. E. 113, 36 L. R. A. (N".S.) 899. 24o Idem. 237 Vinal V. Oilman, 21 W. Va. -^'i Idem. 314; Diament v. CoUoty, 66 X. J. ^-i-'Cumhcy v. Lovett, 76 Minn. L. 295, 49 Atl. 808; Chicago, St. 227, 79 X". W, 99; Snodgrass v. L. & N. R. Co. V. Provme, 61 Miss. Caldwell, 90 Ala. 319, 7 So. 834; 727 Evidence § 566 to the defendant or to another, the account book is competent evidence to show that the charge was made to the defendant at the time of the transaction.^*' And this is the only proper mode of proof, unless such book can not be produced.^^* So, where a book is called for by the adverse party, whether a book of original entry or made in due course of business or not, and is offered in evidence by such adverse party, all the entries are competent evidence, those that make against as well as those that make for the adverse party.^'*^ § 566. In matters of divorce. In suits for divorce, the burden of proof, as a general rule, is on the plaintiff.^''* It is provided by statute in the Vir- ginias^" that a cause for divorce "shall be heard independently of the admissions of either party, in the pleadings or otherwise." The rules of evidence in suits for divorce are the same as in other suits,^** except that admissions can not be considered.^*' At least in West Virginia, admissions of the parties outside of the pleadings are not competent evidence under any circum- stances for the purpose of establishing grounds for a divorce ; ^'* although they are admissible for the purpose of defeating a divorce.^^^ Raub V. Nisbett, 118 Micb. 248, 76 2*8 Latham v. Latham, 30 Gratt. N. W. 393; House v. Beak, 141 lU. (Va.) 307; Bailey v. Bailey, 21 290, 30 X. E. 106.5, 33 Am. St. Eep. Gratt. (Va.) 43. 307 ; see note to Smith v. Smith, s*^ Latham v. Latham, 30 Gratt. 52 L. R. A. at pp. 598, 599. (Va.) 307. 243 Richmond Union Pass. Ry. =50 Trough v. Trough, 59 W. Va. Co. V. New York S. Ry. Co., 95 Va. 464, 53 S. E. C30, 4 L. R. A. (N.S.) 386, 28 S. E. 573; Hall v. Lyons, 1185, 115 .\m. St. Rep. 940. 29 W. Va. 410, 1 S. E. 582. Apparently, the- same rule should 2«Hall V. Lyons, 29 W. Va. 410, prevail in Virginia. But see, Bailey 1 S. E. 582. V. Bailey, 21 Gratt. (Va.) 43. See 245 Rowan v. Chenoweth, 49 W. discussion and analysis ot the Vir- Va. 287, 38 S. E. 544, 87 Am. St. ginia eases at p. 474 of Trough v. Rep. 796. Trousli, aiipra. Also see, Hampton 241 1 Rice, Civ. Ev., 125. v. Hampton, 87 Va. 148, 12 S. E. 247 Va. Code, 1887, §2260; W. 340. Va. Code, 1916, c. 64, § 8. ssi xillis v. Tillis, 55 W. Va. 198, 46 S. E. 92G. The rule is the same §567 Equity Procedure 728 § 567. The character of the evidence and burden of proof in matters of fraud. The burden of proof to establish fraud is upon him who alleges it,^^^ as fraud is never presumed,^^' and it must be proved strictly and clearly as alleged.^^^ The evidence of fraud must be sufficient to satisfy the conscience of the court,^^' but may, and generally must be, eircumstantial.^"^ The proposition that "fraud must be proved and not presumed" is to be understood only as affirming that a contract honest and lawful on its face must be treated as such, until it is shown to be otherwise by in Virginia. Cralle v. Cralle, 79 Va. 182. For a discussion of the evidence in divorce suits, see Hogg, Eq. Princ, §497. As to proof of adultery see same work, § 492 ; Throclsmorton v. Throckmorton, 86 Va. 768, 11 S. E. 289; Dunham v. Dunham, 162 111. 589, 44 N. E. 841, 35 L. E. A. 70. As to proof cf adultery, see Musick v. Muaick, 88 Va. 12, 13 S. E. 202. 252 Board of Trustees v. Blair, 45 W. Va. 812, 32 S. E. 203; Mayers V. Kaiser, 85 Wis. 382, 55 N. W. 688, 39 Am. St. Eep. 849, 21 L. R. A. 623; McMechen v. McMechen, 17 W. Va. 683; Mullen v. Searls, 69 W. Va. 790, 72 S. E. 1089; Curry V. Landes, 116 Va. 843, 83 S. E. 396. 263 Board of Trustees v. Blair, 45 W. Va. 812, 32 S. E. 203; Crebs v. Jones, 79 Va. 3S1; Matthews v. Crockett, 82 Va. 394; Houghton v. Graybill, 82 Va. 573, 41 Am. Kep. 682; Dickenson v. Ramsey, 115 Va. 521, 524, 79 S. E. 1025. The presumption is always in favor of innocence and honesty. N. Y. Life Ins. Co. v. Davis, 96 Va» 737, 44 L. R. A. 30.5, 32 S. E. 475; Dickenson v. Ramsey, supra. 254 Board of Trustees v. Blair, 45 W. Va. 812, 32 S. E. 203; Crebs v. Jones, 79 Va. 381; Matthews v. Crockett, 82 Va. 394; Gregory v. Peoples. 80 Va. 355. 255 Moore v. Ullman, 80 Va. 307 ; Jones V. McGruder, 87 Va. 360, 12 S. E. 792. The evidence must he clear and satisfactory. Herring v. RVickham, 29 Gratt. (Va.) 628. The chancellor "should be cautious not to lend too ready an ear to the charge." Redwood v. Rogers, 105 Va. 155, 53 S. E. 6. See Shoemaker v. Chapman Drug Co., 112 Va. 612, 72 S. E. 121. But "fraud need not be proved beyond a reasonable doubt." Knight v. Nease, 53 W. Va. 50, 44 S. B. 414. 256 Moore v. Ullman, 80 Va. 307; Jones V. McGruder, 87 Va. 3G0, 12 S. E. 792; Bronson v. Vaughan, 44 W. Va. 406, 29 S. E. 1022; Farley V. Bateman, 40 W. Va. 540, 22 S. E. 72; Fishburne v. Ferguson, 84 Va. 87, 4 S. E. 575; Hutcheson v. Savings Bank of Richmond, 105 S. E. 677 (Va. 1920). As aptly said by Keith, P., in Hughes v. Kelly, 2 Va. Dec. 5H8, 30 S. E. 307, though an action at law equally applicable to a suit in equity, "Frau. Carpenter, 91 Va. IBS, 21 S. E. 24.3; Murray v. Moore, 104 Va. 707. ni S. E. 381; Lowance v. Johnson, 7.5 W. Va. 784, 84 S. E. 937. See fur- ther, as to the matter of evidence where fraud is involved, Hogg, Eq. Princ, § 180. 261 Tillman v. Heller, 78 Tex. 597, 14 S. W. 700, 22 Am. St. Rep. 77, 11 L. R. A. 628; Goshorn v. Snod- grass, 17 W. Va. 717; Hardon v. Wagner, 22 W. Va. 356; Rogers v. Verlander, 30 W. Va. 619, 5 S. E. 847; Spcidcl (irocery Co. v. Stark & Co., 62 W. Va.. 512, 59 S. E. 498; Yost V. Graham, 50 W. Va. 199, §568 Equity Procedure 730 may be inferred from the facts and circumstances of the case.*^^ Thus, where a. grantee had knowledge of facts which were naturally calculated to excite suspicion in the mind of a person of ordinary care, and an inquiry would have led to the discovery of acts from which the law imputes fraud to the grantor, he is affected with knowledge of the fraudulent intent of his gran- tor.^"^ And when the plaintiff has shown that the conveyance was made by the grantor with intent to delay and defraud creditors, the burden is then thrown upon the grantee to show that he was a purchaser for a valuable consideration.^^* If a conveyance or transfer of property is based upon a valuable consideration, it must be shown that the grantor made the con- veyance or transfer with a fraudulent intent, and that the grantee or transferee had notice of such intent before or at the 206, 40 S. E. 361; Harrisonburg Harness Co. v. National Furniture Co., 106 Va. 302, 55 S. E. 679; Hammond v. Ridley's Exr., 116 Va. 393, 82 S. E. 102; Haynes v. Peter- son, 125 Va. 730, 100 S. E. 471; Hutclieson v. Savings Bank of Rich- mond, 105 S. E. 677 (Va. 1920). 262 Childs V. Hurd, 32 W. Va. 67, 9 S. E. 362; Bartlett v. Cleavenger, 35 W. Va. 719, 14 S. E. 273. "Wliile the burden of proving a deed fraudulent in fact as to cred- itors is upon the creditors, positive evidence of fraudulent intent is not required, but it may be de- duced from the circumstances of the transaction and the relation and situation of the parties to it and to each other. Circumstantial evi- dence, if adequate to satisfy the court of such fraudulent intent, is sufficient and often the only evi- dence attainable." Reynolds' Admrs. V. Gawthrop's Heirs, 37 W. Va. 3, 16 S. E. 364. Fraud sufficient to impeach a con- veyance may be shown entirely by circumstantial evidence. Bartlett v. Cleavenger, supra. To the same ef- fect, see Vandervort v. Fouse, 52 W. Va. 214, 43 S. E. 112; Knight V. Nease, 53 W. Va. 50, 44 S. E. 414; Miller v. Gillespie, 54 W. Va. 450, 46 S. E. 451; Ridenour v. Roach, 77 W. Va. 551, 555, 87 S. E. 881; Florence W. McCarthy Co. V. Saunders, 83 W. Va. 612, 98 S. E. 800 ; C. M. Elliott & Co. v. John- son, 85 W. Va. 706, 102 S. E. 681: Hutcheson v. Savings Bank of Rich- mond, 105 S. E. 677 (Va. 1920). 263 Anderson v. Mossy Creek Woolen Mills Co., 100 Va. 420, 41 S. E. 854; Copperthite v Loudoun Nat. Bank, 111 Va. 70, 68 S. E. 392; Hutcheson v. Richmond Sav- ings Bank, 105 S. E. 677 (Va. 1920). 264 Blackshire v. Petit, 35 W. Va. 547, 14 S. E. 133; Hickman v. Trout, 83 Va. 478, 3 S. E. 131; Knight v. Nease, 53 W. Va. 50, 44 S. E. 414; Colston V. Miller, 55 W. Va. 490, 47 S. E. 268; Dudley v. Buckley, 68 W. Va. 630, 70 S. E. 376; Ride- nour V. Roach, 77 W. Va. 551, 87 S. E. 881. The principle announced in the text is supported, except as to the proof of notice on the part of the grantee, by Tillman v. Heller, 78 Tex. 597, 14 S. W. 700, 22 Am. St. Rep. 77, 11 L. R. A. 62S. 731 Evidence §568 time of such conveyance or transfer.^^^ If the bill to set aside a conveyance filed by an existing creditor of the grantor allege that it was made without consideration, the burden is upon the parties to' the instrument to show that the consideration was actually paid.^** So, if a deed or other transfer of property is made to a wife, whether by a third person or directly by her husband, during coverture, the burden is upon the wife to show, in -a suit by the husband's creditors, that the property was a gift to her- from a third person or that she furnished the money out of her own separate estate to pay for the property sold and conveyed to her.^^' So, where the husband makes a post-nuptial settlement upon his wife, it is presumed to be voluntary ; and on a bill filed by a creditor of the husband alleging it to be vol- untary, the burden of proof is on those claiming under the settle- ment to show a valuable consideration in support of the settle- 265 Claflin V. Ballance, 91 Ga. 411, 18 S. Et 309; Gillespie v. Allen, 37 W. Va. 675, 17 S. E. 184; Luzadder V. Heath, 79 W. Va. 202, 90 S. E. 675; Sutton & Co. v. Christie, 60 W. Va. 1, 53 S. E. 602. "Where the circumstances con- nected with a conveyance fraudulent as to the grantor plainly establish tlie complicity of the grantee in the fraudulent intent, it is not neces- sary to show by direct and positive proof notice to the grantee of such intent." Reynolds v. Gawthrop, 37 W. Va. 3, 16 S. E. 364. It has been said that if fraud on the part of the grantor is shown, the burden is then upon the grantee to show tliat he did not have notice of the fraudulent intent of the grantor. Blackshire v. Petit, note 264, supra. But this statement is not sustained by subsequent deci- sions. See Luzadder v. Heath, supra; Sutton & Co. v. Christie, 60 W. Va. 1, 53 S. E. 602. Moreover, such a rule calls upon the grantee to prove a negative. 266 Childs V. Hurd, 32 W. Va. 66, 9 S. E. 362; Hogg, Eq. Princ, §§ 191, 192. See cases cited in note 264, supra; Florence W. McCarthy Co. V. Saunders, 83 W. Va. 612, 98 S. E. 800. But this rule has no application to a sale under a valid deed of trust. Donohoe v. Collett, 105 S. E. 265 (W. Va. 1920). 267 Martin v. Warner, 34 W. Va. 182, 12 S. E. 477; Grant v. Sutton, 90 Va. 771, 19 S. E. 784; Rixey v. Deitrick, 85 Va. 42, 6 S. E. 615; Hutchinson v. Boltz, 35 W. Va. 754, 14 S. E. 267; Burt v. Timmona, 29 W. Va. 441, 2 S. E. 780; Brooks v. Applegate, 37 W. Va. 373, 16 S. E. 585; Massey v. Yancey, 90 Va. 626, 19 S. E. 184; Hogg, Eq. Princ, § 193; Miller v..Gillespie, 54 W. Va. 450, 46 S. E. 451 ; Fisher v. Poling, 78 W. Va. 289, 88 S. E. 851; Rich- ardson V. Pierce, 105 Va. 628, 54 S. E. 480; Atkinson v. Solenberger, 112 Va. 667, 72 S. E. 727; Carlsbad Mfg. Co. v: Kellev, 84 W. Va. 190, 100 S. E. 65; McMillan v. Mcintosh, 104 S. E. 591 (W. Va. 1920). [25] § 570 Equity Procedure 732 ment.^'^' So, where a husband confesses judgment to a trustee for the benefit of his wife, or executes a deed of trust for the same purpose, the burden is thrown upon the wife to show, against the husband's creditors attacking either for fraud, that the transaction was fair and hona fide, to secure to her a sub- sisting and valid debt.^^' § 569. In the matter of fraudulent conveyances — Further considered — Badges of fraud. There is a difference in the effect of badges of fraud as proof in Virginia and West Virginia. In the former state,' a single one of these badges or indicia may be sufBcient to stamp the transaction as fraudulent, and where several are found in the same transaction, it will require strong and clear evidence on the part of the upholder of the transaction to repel the conclusion of fraudulent intent.^'" In the latter state, the decisions lead to the deduction that a single badge of fraud may not be sufficient to establish a fraudulent intent. ^^^ § 570. In the matters of judgments and decrees. Decrees have the force of judgments,^^^ and, hence, proof sufficient to show the existence of the latter will be sufficient in the case of the former. When the existence of a judgment is called in question, it is not necessary that a complete copy of 268 Robbing v. Armstrong, 84 Va. O'Xoal, 82 W Va. 186, 95 S. E. 822. 810, 6 S. E. 1.30: Hogg, Eq. Princ, 270 Hickman v. Trout, 83 Va. 478, S§ ms, 106; Vashon v. Barrett, 105 3 S. E., at p. 136. Va. 490, 54 S. E. 705, and eases 271 See Hogg, Eq. Prine., § 188. cited; Miller v. Ferguson, 110 Va. For an enumeration of many 222, 65 S. E. 564 ; Atkinson v. Solen- badges of fraud, see Hogg, Eq, berger, 112 Va. 667, 72 S. E. 727; Princ, § 188; Hickman v. Trout, 83 Morrisette v. Cook & Bernheimer Va. 478, 3 S. E. 136, in the opinion Co., 122 Va. 588, 95 S. E. 449. of Richardson, J.; Young v. Willis, 269 Livey v. Winton, 30 W. Va. 82 Va. 291, in the opinion of the 554, 4 S. E. 451. See generally as court; Delfoss v. McGee, 66 W. Va. to fraudulent conveyances, Hogg, 441, 66 S. E. 525; Bank v. Wilfong, Eq. Princ, S§ 181-203. 66 W. Va. 470, 66 S. E. 636. But Relationship of the parties to a see Colston v. Miller, 55 W. Va. transaction does not constitute a 490, 47 S. E. 268 ; Moore v. Tearney, badge of fraud, but is only a proba- 62 W. Va. 72, 57 S. E. 263 ; Speidel tive circumstance. Donohoe v. Col- Grocerv Co. v. Stark & Co., 62 W. lett, 105 S. E. 265 (W. Va. 1920) ;. Va. 512, 59 S. E. 498; C. M. Elliott Hutcheson v. Savings Bank of Rich- & Co. v. Johnson, 85 W. Va. 706, mond, 105 S. E. 677 (Va. 1920). 102 S. E. 681. But it is of strong probation value. 272 w. Va. Code, 1913, e 13, § 17, North American Coal &, Coke Co. v. cl. 12 ; Va. Code, 1904, § 3557. 733 Evidence §572 the whole record of the ease in the court in which the judgment or decree was had should be produced or filed, but only a prop- erly authenticated copy of such judgment or decree."' The copy here contemplated is only an extract from the record of the cause, a copy of the judgment as entered, and may be read as evidence in the cause.^^* § 571. In matters of mistake. It is a well-settled doctrine of equity that relief will be granted in cases of mistake of fact in written instruments;^'^ but it must be a plain mistake, clearly made out by satisfactory proofs.^'^ If the evidence is loose, equivocal or contradictory, or it is in its texture open to doubt or to opposing presumptions, relief will be denied.^" § 572. In the matter of the contest of wills. If the ground of contest be the want of mental capacity of the testator to make a will, it must be shown that he had that 273 Dickinson v. Railroad Co., 7 W. Va. 390; Anderson v. Nagle, 12 W. Va. 98. But production of the judgment or decree alone is not always suffi- cient. "Whether or not a judgment or decree, without any other portion of the record, is competent and suffix eient evidence, depends upon whether or not the judgment or decree so offered satisfactorily establishes the fact it is offered to prove." Krebs' Exrs. V. Welch's Adnir., Ill Va. 432, 69 S. E. 346. In order to prove an adjudication of title, or a con- veyance executed under judicial au- thority, so much of tlie record must be introduced as "will show that tlie court authorized the conveyance of the property; that it had jurisdic- tion of the person wliose property is directed to be conveyed, and tliat it had jurisdiction of the subject matter." Hagan v. Holderby, 62 W. Va. 106, 57 S. E. 289, 125 Am. St. Rep. !I60; Beatty v. Edgell, 75 W. Va. 252, 83 S. E. 903. 27^ Dicl^inson v. Railroad Co., 7 W. Va. 390. =75 Hogg, Eq. Princ, §§40, 337- 347: Nutter v. Brown, 51 W. Va. 598, 42 S. E. 661; Taylor v. God- frey, 62 W. Va. 677, 59 S. E. 631; Wilkinson v. Dorsey, 112 Va. 859, 72 S. E. 676. '276 Major v. Ficklin, 85 Va. 732, 8 S. E. 715: Hogg, Eq. Princ, §§.341, 345. -•"Major V. Ficklin, 85 Va. 732, 8 S, E. 715: l-Iogg, Eq. Prmc, § 345; Koen V. Kerns, 47 W. Va. 575, .!.■> S. E. 902: .'Stevens v. .Johnson, 72 W. Va. 434, 78 S. E. 377; Gillespie V. Davis, 116 Va. 630, 82 S. E. 705. § 572 Eqtott Procedure 734 degree of mental capacity, at the time the will was made, to understand the nature of the business in which he was engaged, to recollect the property he had, the objects of his bounty, and to know and understand the manner in which he wished to divide his property."' The time to be looked to in determining the question of the mental capacity of the testator is the time when the will was made ; "^ but liis mental condition both before and after the execution of the instrument may be shown in evidence in determining what such condition really was when the will in question was made.^*" If the ground of contest be undue influence, the evidence must show it to be, such as to have overcome the free agency of the testator amounting to moral or physical coercion, operating upon him at the time the will was made.^^' "It is not essential to the establishment of the charge of undue influence that its active and visible agency should be asserted upon its victim or object of coercion, so as to be susceptible of positive proof, at the very point of time when the act was done. It is sufficient if the effect of this agency remain with the party and operate upon him at the time the act was done or the instrument was made, and was the effective means of bringing it about. "^*'- The burden of proof of undue influence, as a general rule, is upon the party alleging it.^^' But if the party charged with undue influence 2'8Hogg, Eq. Princ, §57, citing Songer, 29 Gratt. (Va.) 9; Stewart numerous cases. Huff v. Welcli, 115 v. Lyons, 54 W. Va. 665, 47 S. E. Va. 74, 78 S. E. 573; Lester v. 442; Snodeker v. Rulong, 09 W. Va. Simplvins, 117 Va. 5.5, 83 S. E. 1062; 223, 71 S. E. ISO; Wood's Exrs. Freeman v. Freeman, 71 W. Va. 303, v. Wood, 100 Va. 470, 63 S. E. 994. 76 S. E. 657; Stewart v. Lyons, 54 =82 Hogg, Eq. Prine., §53, citing W. Va. 665, 47 S. E. 442. numerous autliorities. 278 Hogg, Eq. Princ, § 57 ; Stewart =«3 Baldwin v. Parker, 99 Mass. V. Lyons, 54 W. Va. 665, 47 S. E. 79, 90 Am. Dec. 697 ; Howe v. Howe, 442. idem, 88; SIcMcclien v. McMechen, 280 Hogg, Eq. Princ, §57, citing 17 W. Va. 684: Coffman v. Hedrick, Jarrett v. Jarrett, 11 W. Va. 584: 32 W. Va. 119, 9 S. E. 65; Stewart Terry \. Biiffington, 11 Ga. 337. \. Lyons, 54 W. Va. 665, 47 S. E. ^x'ldcm, 8 53, citing several au- 442; Bade v. Feay, 63 W. Va. 166, thorities; Parramore v. Taylor, 11 61 S. E. 348: Wallen v. Wallen, Gratt. (Va.) 220; Simmerman v. 107 Va. 131, 57 S. E. 596. 735 Evidence §■573 stands in a confidential relationship to the testator, or the relation of dependence for advice or assistance of any sort, and is a large beneficiary under the will, and had any part or agency in the preparation of the will, the law presumes undue influence, and Casts upon the beneficiary the burden of rebutting such presumption.^^'* §573. In the matter of the contest of wills — Further con- sidered. On the question of mental capacity to malce a will, the evidence must necessarily take an unusually wide range.^^'' Thus, it is competent to prove the declarations of the testator made before or after the execution of the will;^'*" the departure from or conformity to any former will or wills disposing of the property of the testator ; ^^' the provisions or terms of the will in question, in connection with all the other evidence in the cause ; ^** written agreements to which testator was a party made before 284 Coghill V. Kennedy, 119 Ala. 641, 24 So. 459; Whitelaw v. Sims, 90 Va. 588, 19 S. E. 113; White V. Ross, 160 111. 56, 43 N. E. 336; Chappell V. Trent, 90 Va. 849, 19 S. E. 113; Miller v. Miller, 187 Pa. 572, 41 Atl. 277; Claflfey v. Led- witli, 56 N. J. Eq. 333, 38 Atl. 433; Jn re Bromley's Estate, 113 ^Micli. 53, 71 N. W. 523; Marx v. McGlynn, 88 X. Y. 357; Madilox v. Maddox, 114 Mo. 35, -21 S. W. 490, 35 Am. St. Rep. 734; Richmond's Appeal, 59 Conn. 226, 22 Atl. 82, 21 Am. St. Rep. 85, and note pp.. 94-104; Atkins V. Withers, 94 N. O. 581-591; Montague v. Allen, 78 Va. 592, 49 Am. Rep. 384. 285 See cases cited under this and the next succeeding section. 2S0 Ileseman v. Vogt, 181 111. 400, 55 N. E. 151; Mcintosh v. Moore 22 Tex. Civ. App. 22, 53 S. W. 611 Dingos V. Branson, 14 W. Va. 100 McMechen v. McMechen, 17 W. Va. 685; La Rue v. Lee, 63 W. Va. 388, 394, 60 S. E. 388, 14 L. R. A. (N.S.) 968, 129 Am. St. Rep. 978; Wallen V. Wallen, 107 Va. 131, 57 S. E. 596; Samuel v. Hunter's Exrx., 122 Va. 636, 95 S. E. 399. 287 Powers V. Powers, 21 Ky. Law. Rep. 597, 52 S. W. 845; Smith v. Henline, 174 111. 184, 51 N. E. 227; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493; Ross v. McQuiston, 45 la. 145. 2S8Kaenders v. Montague, ISO Ul. 300, 54 N. E. 321; llollenbeck v. Cook, ISO HI. B.5, 54 X. E. 154; Rivard V. Rivard, 109 ilich. 98, 66 N. W. 681, 63 Am. St. Rep. 566; Sim V. Russell, 90 la. 656, 57 N. W. 601 ; Patterson v. Patterson, 6 Serg. and R. (Pa.) 55; Manatt V. Scott, 106 la. 203, 68 Am. St. Rep. 293, 76 X. W. 717; Wallen v. Wallen, 107 Va. l:?l, 57 S. E. 596. § 574 Equity Procedure 73fi and after the will in question ; 2*" conversations between persons present at the execution of the will of a dying person in regard to her mental and physical condition,^'" as well as entire conversations between the testator and the legatees;^'-" the fact that the testator disinherited some of his children;^"' the disposition of property by the will not belonging to the testa- tor as a circumstance unfavorable to a proper mental condition to make a will ; ^^' business transactions of the testator both before and after the will was made.^''' So, the opinions of wit- nesses, not experts, supported by the facts upon which such opin- ions are founded, are competent evidence as to mental capa- j,j^y 295 j^ii(j upon the question of mental capacity, all the facts connected with the personal history of the testator,^''' his habits of life,^" and the extent and condition of his property,^'* are competent evidence. § 574. In the matter of the contest of wills further considered. No rules can be laid down as to the admissibility or compe- tency of evidence on the issue of undue influence, and we state here only some classes of evidence that may properly be used in most cases involving this, ground of contest. Thus, the contestants may prove entire conversations between the deceased and the legatees, which tend to show undue influence ; ^^^ knowl- ssoJIessner v. Elliott, 184 Pa. St. 21 W. Va. 24; Fariisworth v. Xoff- 41, 3!1 Atl. 46. singer, 46 W. Va. 410, 33 S. E. 246; ^f" Kosteleeky v. Sclierliart, 99 Hopkins v. Wampler, 108 Va. 705, la. 120, 68 N. W. 591. 62 S. E. 926; IIiifT v. Welch, 115 201 /)) re Potter's Will, 101 N. Y. Va. 74, 78 S. E. 573; Freeman v. 84. 5o N. E. 387. Froomiin, 71 W. Va. 303, 7C S. 10. 202 In re Burns' Will, 121 N. C. G57. 336, 28 S. E. 519; Wallen v. Wallen, ^so Ross v. ^McQuiston, 45 Ta. 145. 107 Va. 131, 57 S. E. 596. so'' Ball v. Kane, 1 Pciincwill 2i>3 Marks v. Bryant, 4 H. & M. (Del.) 90, 39 Atl. 77S; Smitli \. (Va.) 91; In re Burkman's Will, Smitli, 67 Vt. 443. 64 Vt. 313, 33 Am. St. Rep. 930. 298 Young v. Eidenbaugh, 67 Mo. 294 Kerr v. Lunsford, 31 W. Va. 574. 659, 8 S. E. 493. -"^ ^» »'e Potter's Will, 161 N. Y, 299 Kerr v. Lunsford, 3-1 W. Va. 84, 55 N. E. 387. 659, 8 S. E. 493; Dower v. Church, 737 Evidence § 575 edge by the beneficiary of the testator's intention to make a will, though of little weight ; ""' motive and opportunity to exercise undue influence on the part of a party charged with it;'"' the unreasonableness of the dispositions made by the will, as a circumstance to be considered with the other evidence in the ease as tending to show undue influence.'"^ So, the departure of the will in question from, or its conformity to, any previous will or wills of the testator may be shown in evidence ; '"' the declara- tions of the testator, whether made before or after the will.^"* And if undue influence be shown to have been exercised over the testator, both before and after the execution of the will, the facts may be given in evidence to the jury from which they may infer, if they see proper, that undue influence wag exercised over the testator at the time the will was made.^"^ But the dec- larations or admissions, as a general rule, of a devisee or legatee intersted in maintaining the will, which tend to impeach it on any ground whatever, where there are other devisees or legatees interested in sustaining it, are inadmissible.'"^ § 575. Admissibility of parol evidence with reference to writ- ten instruments in certain cases. It is a firmly-fixed principle in the law of evidence, as a general rule, obtaining in a court of equity, as well as in a court of law, that parol evidence can not be admitted (unless in cases of fraud or mistake) to vary, contradict, add to, or explain 300 In re Cornell's Will, 60 N". Y. 100; Sheelian v. Kearney, 82 Miss. Sup. 53, 43 App. Div. 241. 6RS, 21 So. 41, 35 L. R. A. 102. 3fii Jn re Keefe's Will, 62 N. Y. See cases cited in note 286, supra. Sup. 124, 47 App. Div. 214; Snode- 305 Forney v. Ferrell, 4 W. Va. 729. ker V. Rulong, 69 W. Va. 223, 71 s"" Wliitelaw v. Wliltelaw, 96 Va. S. E. ISO. 712, 32 S. E. 458; Parsons v. Par- ana Keanders V. Montague, 180 111. sons, 6G la. 754, 21 N. W. 570, 24 300, 54 N. E. 321; Hollenbeek v. N. W. 564; Eastis v. Montgomery, Cook, ISO Til. 65, 54 N. E. 154; 95 Ala. 4S6, .36 Am. St. Rep. 227, Wallen v. Wallen, 107 Va. 131, 57 11 So. 204. S. E. 506. As to evidence in case of lost or 303 Smith V. Henline, 174 Til. 184, destroyed wills, see Clark v. Tur- 51 N. E. 227. ner, 50 Neb. 290, 38 L. E. A. 433, 304 Dinges v. Branson, 14 W. Va. and extended note. §575 Equity Procedure 738 the terms of a written agreement of the parties, and thus show- that the agreement is different from what it appears to be from the writing itself.^"^ But in certain eases there are apparent exceptions to this rule, which are as well established as the rule itself. Thus, where the writing on its face is incomplete, parol evidence is admissible to show additional independent facts contemporaneously agreed upon and not inconsistent with or contradictory of the contract so far as reduced to writing.'"^ The true consideration of a deed or other writing may be shown by parol evidence, though it be different from that expressed on the face of the instrument.'"" Thus, where a sister agrees to convey to her brother a certain tract of land, and in consideration thereof the brother agrees to support their aged father and mother during their natural lives, and that he will bind himself to do so by written contract after the conveyance shall have been made, whereupon the land is conveyed accord- ingly, the deed reciting a money consideration only, in such case the real and true consideration may be shown by parol evi- 307 Long V. Ferine, 41 W. Va. 314, 23 S. E. 611; Allen v. Crank, 2 Va. Dec. 27i», 23 S. E. 772; Home Gas Co. V. Mannington, etc., Gla.ss Co., 63 W. Va 266, 61 S. E. 32!); Craw- ford V. Workman, (i4 V\'. Va. 10. 61 S. E. 319; Long v. I'otts, 70 W. Va. 71!), 7.5 S. E. 62; Fentress v. Steele, 110 Va. ."578, 66 S. E. 870; Carlin & Co. V. Fraser, 105 Va. 216, 53 S. E. 145. See numerous additional cases under topic, "Parol Evidence," in Eneyc. Dig. Va. and W. Va. Rep. and Supplomcmts. Tlie rule applies to sealed and unsealed instruments. Wliitaker & Fowle v. Lane, 104 S. E. 2.52 (Va. 1!)20). 308Tuley -•. Barton, 70 Va. 387; Farmers' Mfg-. Co. v. Woodwortli, 109 Va. 5!)6, 64 S. E. 086; Mar- stinior V Warden, 115 Va. 353, 7!) S. E. 332 ; Lon9; Cooper v. Cooper, 65 23 S. E. 792, 56 Am. St. Rep. 87S. W. Va. 712, 64 S. E. 927. sss Adams v. Gill, 158 111. 190, 41 335 Wetherill v. McCloskey, 28 W. N. E. 738. Va. 195; Doonan v. Glynn, 26 W. "The allegation in a bill that the Va. 225; Simpson v. Edmiston, 23 grantor in a certain deed failed to W. Va. 675, 678; Floyd v. Duffy, retain a certain reservation set forth 68 W. Va. 339, 69 S. E. 993, 33 in a written contract authorizing L. R. A. (N.S.) 883. An agreement such deed, is not sustained by in substance is all that is required. proof that such reservation was Idem. omitted liy reason of agreement be- tween the parties that the grantee §579 Equity Phocedure 744 If the evidence shows that the plaintiff has a cause which entitles him to relief, that it is of a similar nature to that alleged in the bill, and such as may be made available by proper amendments to the bill, the court on the hearing should not dismiss the bill without giving tlu^ plaintiif an opportunity to amend within a reasonable time/''' § 579. Effect of a decree based upon a conflict in the evidence. If a decree is rendered upon depositions which are conflict- ing, and of such a doubtful and unsatisfactory character that different minds and different judges might reasonably disagree as to the facts established by them, or the proper conclusions to be drawn from them, the appellate court will not reverse the decree or finding of the chancellor, although the testimony be such that the appellate court might have pronounced a differ- ent decree had it decided the cause in the first instance.'-" The effect of the decisions cited in the foot-note is to declare that where the decree of a circuit court rests upon a substantial in sueli dwd sliould make a sepa- rate ilci'il for such reservation." Caton V. Raber, 56 W. Va. 244, 49 S. E. 147. 339Doonan v. Glynn, 26 W. Va. 225. See Baldenberg v. Warden, 14 W. Va. 397; Depue v. Sergent, 21 W. Va. 326; Caton v. Raber, 56 W. Va. 244, 49 S. E. 147; Ryan T. Knee, 67 W. Va. 485, 68 S. E. 110; Floyd V. Duffy, 68 W. Va. 339, on S. E. 993, 33 L. R. A. (N.S.) SSli; Whetsoll V. City of Elkina, 68 \V. Va. 7nf), 70 S. E. 7."i4: Ilcrtzo- V. Riley, 71 W. Va. 651, 77 S. i;. 138; Hardball v. Porter, 73 W. Va. 258, 80 S. E. 3.")l); Roller v. Murray, 107 Va. 527, 59 S. E. 421; Laskey V. Burrill, 105 Va. 480, 54 S. E. 23. SMDoonan v. Glyim, 28 W. Va. 715: Smith v. Yoke, 27 W. Va. 639; Bartlett v. Cleavenger, 35 W. Va. 720, 14 S. E. 277; Richardson V, Ralplisnyder, 40 W. Va. 15, 20 S. E. 854; Thorn v. Sprouse, 46 W. Va. 225, 33 S. E. 99 ; Shepherd v. Snod- grass, 47 W. Va. 79, 34 S. E. 879; Hickman v. Painter, 11 W. Va. 386; Wolfe V. Morgan, 61 W. Va. 287, 56 S. E. 504; Burrows v. Fitch, 62 W. Va. 116, 57 S. E. 283; Fisher v. Berwind, 64 W. Va. 304, 61 S. E. 910, 131 Am. St. Rep. 898; State V. King, 64 W. Va. 54G, 63 S. E. 468; Bradshaw v. Farnsworth, 65 W. Va. 28, 63 S. E. 755; Baker v. Jackson, 65 W. Va. 282, 64 S. E. 32; Cumberledge v. Cumberledge, 72 W. Va. 773, 79 S. E. 1010; Ireland V. Smith, 73 W. Va. 755, 81 S. B. 542; Smith v. White, 77 W. Va. 377, 87 S. E. 865; South Penn Oil 745 Evidence §579 conflict in the evidence, it will not be disturbed by the appel- late court because of a lack of evidence to support it. Co. V. Blue Creek Development Co., 77 W. Va. 682, 88 S. E. 1029; Kane & Keyser Hardware Co. v. Cobb, 79 W. Va. 587, 91 S. E. 454; Patter- son V. Clem, 79 W. Va. 666, 91 S. E. 654; Kelly v. Wellsburg & State Line K. R. Co., 80 W. Va. 306, 92 S. E. 433; Va. & Ky. Ey. Co. v. Heninger, 110 Va. 301, 67 S. E. 185; Alexander v. Critcher, 121 Va. 723, 94 S. E. 335; MeDannald v. Wilmoth, 82 W. Va. 719, 97 S. E. 132; Ramsey v. England, 85 W. Va. 101, 101 S. E. 73; Ross v. McCon- naughy, 85 W. Va. 199, 101 S. E. 443; Osborne v. Gillenwaters, 104 S. E. 578 (W. Va. 1920); Stickley V. Thorn, 106 S. E. 240 (W. Va. 1921). The same rule applies as to the finding of a commissioner in chan- cery. See same citations. But the decree will be reversed when there is a decided preponder- ance of the evidence against it. Mc- Graw V. Morgan, 81 W. Va. 331, 94 S. E. 370; Rice v. Rice, 106 S. E. 237 (W. Va. 1921). See Catron v. Norton Hardware Co., 123 Va. 380, 96 S. E. 853, mak- ing a distinction between cases heard upon testimony before the court and testimony submitted by depositions. As to the function of the supreme court where a circuit court has over- ruled an intermediate court, see Peck v. Roberts, 106 S. E. 540 (W. Va. 1921). CHAPTER XXV CONSOLIDATION AND HEARING OF CAUSES § 580. Preliminary observations. § 581. When consolidation should be ordered. § 582. The mode of obtaininfr an order for consolidation. § 583. Preliminary and final hearings. § 584. When a cause may be heard. § 585. Matters of preliminary hearing. § 586. Preliminary hearing witli reference to the pleadings in a, cause. § 587. The final hearing of tlie cause. § 588. Tlie liearing of a cause upon demurrer. § 580. When case may be heard as to a part of the defendants. § 590. When a cause may be finally heard. § 591. What matters may be considered on the hearing of a cause. § 592. Certain matters tliat may be noticed or raised at the hearing of • cause. § 593. The manner of hearing a case. § 580. Preliminary observations. The object to be attained by the consolidation of causes pend- ing in the same court against the same party or parties is to prevent the unnecessary accumulation of costs necessarily inci- dent to the prosecution of two or more suits concerning the same matter.^ This being the purpose to be subserved by such 1 Wyatt V. Tliompson, 10 W. Va. equity) merely operates to carry on 645 ; Beach v. Woodyard, 5 W. Va. togetlier two separate suits supposed 231. to involve identical issues, and is " 'The parties,' as correctly stated intended to expedite the hearing in 8 Cyc. 608, 'in one suit do not and diminish the expense.' See also, become parties to the other, and Daniel, Ch. Pr., note 3, p. 797 (5th their rights still depend on the Am. Ed.) ; Judge Lurtori's (now pleadings, proof and proceedings in Justice Lurton) opinion in Toledo, the respective causes. The issues etc., Ey. v. Continental T. Co. (C. remain precisely as they were, and C A.), 95 Fed. 497, 506." Atkin- are to be determined exactly as if son v. Solenberger, 112 Va. 667, 670, the cases had been heard separately. 72 S. E. 727. In short, the consolidation (in 746 747 Consolidation and Hearing of Causes § 581 a course, a court ought not to hesitate to order a consolidation when to do so will relieve a defendant or an estate from un- necessary expenses and costs, and will thus not only be a sub- stantial benefit to the defendant or defendants, but even to the plaintiffs themselves; and this the court may do in any case, inasmuch as a court of equity has the inherent power to order a consolidation of causes,^ and the exercise of such discretion will not be disturbed on appeal, unless the parties or some of them have been prejudiced by the court's action in that re- gard.^ In accordance with the doctrine thus obtaining, it is not improper to hear three causes to enforce equitable claims to- gether, where such a course is necessary to protect the interests of all the parties/ § 581. When consolidation should be ordered. It is a well-settled rule that when two or more causes are pending in the same court, and the parties therein are the same, and such causes have been brought upon matters which might have been united in one suit, and the defense is the same in all, the causes ought to be consolidated and heard together ; ^ but where the suits are by different plaintiffs proceeding against different funds in the hands of different defendants to satisfy separate and distinct liens or demands, a consolidation is improper.' It is sufficient if the main objects or grounds of ■: Patterson v. Eakin, 87 Va. 49, v. Woodyard, 5 W. Va. 231; Mosby 12 S. E. 144; Oldfather v. Zent, U v. Withers, 80 Va. 82. Ind. App. 430, 39 N. R. 221 ; Castle In Mosby v. Witliers, supra, the V. Castle, 69 W. Va. 400, 71 S. E. court decides that, where in equity 385; Bond v. National Fire Ins. Co., a plea is presented of the pendency 77 W. Va. 736, 88 S. E. 389. of another suit in the same court, 3 See same citations ; Moorman v. between the same parties, concern- Crockett, 90 Va. 185, 17 S. E. 875. ing the same subject, the plea may * National, etc.. Bank v. Preston be rejected and the causes consoli- et ah, 97 Va. 222, 33 S. E. 546. dated and proceeded in as one suit. 6 McKittriek v. McKittrick, 43 W. « Wyatt v. Thompson, 10 W. Va. Va. 117, 27 S. E. 303; Wyatt v. 645; Beacli v. Woodyard, 5 W. Va. Thompson, 10 W. Va. 645; Beach 231; Hill v. Postley, 90 Va. 200, 17 S. E. 946. § 583 Equity Procedure 748 suit in the different causes be substantially the same,' and it is likewise sufficient if the defendants in the various suits have a common defense or have a common interest, though they may have been sued in different rights or capacities.' Thus, a suit by the beneficiary against the trustee may be consolidated with another suit by a legatee against the same defendant as execu- tor, where the rights of each plaintiff involve the settlement and distribution of the same estate.' § 582. The mode of obtaining an order for consolidation. As we have seen,^" the consolidation of causes is in the sound discretion of the court, and not matter of strict right,^^ and the question of right to' consolidate can not be raised by plea, in abatement or in bar, but must be presented by motion for rule to show cause why the suits should not be consolidated and heard as one.'^ § 583. Preliminary and final hearings. The hearing of a cause in equity really means its trial and determination." The word "hearing," as applied to equity causes, has the same meaning as the word "trial," which is applied to actions at la'iv." There are two kinds of hearings in a court of equity (1) preliminary or interlocutory, and (2) final hearings. ^^ At a preliminary hearing, the court decides those questions and passes upon those matters which are ma- terial in determining the subsequent or further steps to be 7 McKittrick v. McKittrick, 43 W. 481 ; Wyatt v. Thompson, 10 W. Va. Va. 117, 27 S. E. 303; Moorman 64.5. V. Crockett, 90 Va. 185, 17 S. E. is Babcoek v. Wolf, 70 la. 679, 28 875; Patterson v. Eakln, 87 Va. N. W. 490; Black, Law Die, 564. 49, 12 S. E. 144. 1* Black, Law Die, 564; Akerly v. 8 Moorman v. Crockett, 90 Va. Vilas, 24 Wis. 171, 1 Am. Rep. 166. 185, 17 S. E. 875. ^^ Akerly v. Vilas, 24 Wis. 171, 9 Idem. 1 Am. Rep. 166; Miller v. Tobin, 10 Ante, § 580. 18 Fed. 616, 9 Sawy. 401 ; Galpin iiMcRae v. Boast, 3 Rand. (Va.) v. Critcblow, 112 Mass. 343, 17 Am. 481 ; Bond V. National Fire Ins. Co., Rep. 176; Adams, Eq. (8th Ed.), 77 W. Va. 736, 88 S. E. 389. 374; 2 Beach, Mod. Eq. Pr., §§634, i2MeRae v. Boast, 3 Rand. (Va.) 635; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), bottom p. 963. 749 Consolidation and Hearing op Causes § 584 taken in the cause, and often determines the status of the plead- ings therein, and the issue or issues between the parties.^" There may be several preliminary hearings in a cause, but, in the very nature of things, there can be but one final hearing," at which the cause is absolutely disposed of by the entry of a final decree upon the merits of the suit.^* § 584. When a cause may be heard. There can be neither a preliminary nor a final hearing of a cause until it has been properly matured for a hearing ; " that is, until process has been served upon the defendant, or order of publication duly has been executed, if the defendant be a nonresident and not duly served with process, or he has ap- peared to the cause, the rules properly have been taken and the cause set for hearing,^" unless it be submitted by consent or 16 Adams, Eq. (8tli Ed.), 374. "2 Daniell, Ch. PI. and Pr. (6th Am. Ed. ) , p. 963, note. Perhaps this statement requires qualifica- tion. At least, it would seem, where a bill presents separate items for recovery there may be a final hear- ing separately as to each of the separate items. 18 Miller v. Tobin, 18 Fed. 616, 9 Sawy. 401; Akerly v. Vilas, 24 Wis. 171, 1 Am. Rep. 166; Galpin V. Critchlow, 112 Mass. 343, 17 Am. Rep. 176; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 953, note. IS Ante, §280; Kuhn v. Mack, 4 W. Va. 186. 20 Ante, §280; Price v. Pinnell, 4 W. Va. 296; McCoy v. McCoy, 9 W. Va. 443; Harmison v. Lone- berger, 11 W. Va. 175; 10 Enc. PI. and Pr., 9. In Virginia a cause can not be heard in which the defendants are proceeded against as nonresidents or unknown parties until fifteen days after the completion of the execution of the order of publica- tion. Va. Code, 1904, § 3232. In West Virginia, generally, the cause may be heard at the ne.xt term of the court after the completion of the order of publication. W. Va. Code, 1!)13, e. 124, § 13. In the lat- ter state, no judgment (which also includes decree, W. Va. Code, 1913, c. 13, § 17, cl. 12) by default on a scire facias or summons shall be valid, if it becomes final within thirty days after the service of such process. W. Va. Code, 1913, c. 124, § 6. In West Virginia, a divorce case can not be heard unless proc- ess has been served upon the de- fendant sixty days, or an order of publication has been executed thirty days, before the first day of the term at which a hearing is sought. Likewise, notice of intention to ask for a hearing must have been served upon the divorce commissioner at least thirty days before the first §584 Equity Peoceduee 750 without objection ; '^ and when the record does not disclose that objections were made to the hearing of a cause, the presump- tion is that the cause was heard without objection. ^^ But it ia the better practice that the decree on its face should show that the cause has been regularly matured for hearing.^^ And if there are infant defendants, a hearing is erroneous unless a guardian ad litem has been appointed for such infants.^* But if a cause is prematurely heard and the bill dismissed, it will day of the term of court at which the cause is to be heard. W. Va. Code, 1916, c. 64, §§15, 17; Acts, 1915, c. 73. While proper proceedings at rules for the purpose of maturing a cause are essential to entitle a party to a hearing, the important question is, not whether proper record entries have been made at rules, but whether, regardless of the presence or absence of such entries, proper proceedings have actually taken place. See ante, § 283, and note. 2iKuhn 7. Mack, 4 W. Va. 186: Anderson v. Moore, 145 111. 61, 33 N. E. 848; Poling v. Johnson, 2 Kob. (Va. ) 255; Armstrong v. Pitts, 13 Gratt. (Va.) 235; Lange v. Jones, 5 Leigh (Va.) 102; McDer- mitt v. Newman, 64 W. Va. 195, 61 S. E. 300. 2- Gardner v. Landcraft, 6 W. Va. 36. As the court has the right to cor- rect the proceedings had at rules in order to hear the cause, and make final decree therein, it results from this that, in the absence of any- thing to the contrary appearing up- on the record, it must be presumed that the cause was regularly ma- tured for hearing when the decree was entered, if it appear that the process was executed and the bill filed for a sufficient time for the cause to be matured. Eiggs v. Lockwood, 12 W. Va. 133. See ante, § 283, and note. 23Eiggs V. Lockwood, 12 W. Va. 133. A recital in a decree will sup- ply an omission to enter proper orders at rules, and will be taken as a, verity, in the absence of any showing in the record to the con- trary. "Where a decree recites that tbe cause was heard upon the original and amended bills taken for con- fessed, after due service of process thereon on all the defendants, and the rule docket fails to show service of process upon some of them, the decree is a judicial ascertainment that all were served, and will be considered an informal correction of the rules." Central District & P. T. Co. V. Parkersburg & 0. V. E. P.y. Co., 76 W. Va. 120, 85 S. E. 65. 24Piercy v. Piercy, 5 W. Va. 190; Hays V. Camden's Heirs, 38 W. Va. 109, 18 S. E. 461. But if the in- fant has been served with process, failure to appoint a guardian ad litem is reversible, but not juris- dictional, error, and renders tho decree voidable, not void. Linn v. Collins, 77 W. Va. 592, 87 S. a. 934. 751 Consolidation and Hearing op Causes § 586 not be reversed on that ground only, if there could be no other result than delay and the incurrence of additional costs.-^ § 585. Matters of preliminary hearing. The usual matters constituting the grounds of preliminary hearing are the insufficiency or defectiveness of the pleading; the appointment of special commissioners in certain cases, as in proceedings to make partition of real estate; the appointment of a special receiver; the reference of the cause to a special or master commissioner, to investigate and report to the court with reference to certain facts, to enable the court conveniently to make a decree in the cause ; and the direction of an issue to be tried by a jury, either on the law side of the court, or at the bar of the court of equity.^^ To this may be added the hearing of exceptions to depositions,^' and to the reports of commissioners and special receivers ; ^* and also, a motion to dissolve an injunction ancillary to the relief sought by the bill,^^ as in such a case the bill should be retained and the cause proceeded with to a final hearing.^" § 586. Preliminary hearing with reference to the pleadings in a cause. The hearing of a cause upon a demurrer to the bill,' whether the demurrer is overruled or sustained, is a mere preliminary or interlocutory matter;'^ and it only becomes final when the 2T Mayse V. Biggs, 3 Head (Tenn.) Caylor, 32 Md. 151; Davis v. Cla- 36. " baugh, 30 Md. 508; Hill v. Cronin, 26 Adams, Eq. (8th Ed.), 375 et 56 W. Va. 174, 49 S. E. 132. seg.; Puterbaugh, Ch. PI. and Pr. ^t Ante, §§521-524. ;3rd Ed.), 244; Barton's Suit in ^s Post, §§676-679. Equity, 135; Bogardus v. Trinity -'^ Kelly v. Baltimore, 53 Md. 134; Church, 4 Paige Cli. (N. Y.) 178, 3 Logan v. Ballard, 61 W. Va. 526, 57 Law Ed. 394; Miller v. Cook, 77 S. E. 143; Staley v. Big Sandy, etc., Va. 806; Wood v. Harmison, 41 W. Railroad Co., 63 W. Va. 119, 59 S. Va. 376, 23 S. E. 560; Repass v. E. 946. ,j:oore, 96 Va. 147, 30 S. E. 458; so See same citations. Kanawha Lodge v. Swann, 37 W. si Campbell v. Powers, 139 111. 128, Va. 176, 16 S. E. 462; Wilhelm v. 28 N. E. 1062; Ft. Dearborn Lodo'e § 588 Equity Procedure 752 cause is adjudicated and the bill is dismissed upon the de- murrer.'^ So, the argument of exceptions to a bill because of scandal or impertinence, or exceptions to a plea or answer, is always upon a preliminary hearing of the cause as to such matters.^' The consideration of the other matters of pre- liminary hearing are deferred to subsequent chapters of this work.^* § 587. The final hearing of the cause. A final hearing is a hearing as to the merits of the cause, and one that absolutely disposes of the suit,'^ by a final decree disposing of the matters in controversy.^^ Such hearing may be upon a demurrer to the bill ; '' upon the bill and answer ; '* upon bill, answer and replication to the answer ; ^^ or upon all the pleadings, papers and proofs in the cause." § 588. The hearing of a cause upon demurrer. It is not usual that a final hearing is had solely upon a de- murrer to the bill ; but when the cause is so heard, the argu- ment is confined to the case appearing upon the record, and, of course, for the purposes of the argument, the matters of fact V. Kline, 115 111. 177, 3 N. E. 272, '8 2 Daniell, CIi. PI. and Pr. (6th 56 Am. Rep. 133; I\ye v. Slaughter, Am. Ed.), 974; ante, § 481. 27 Miss. 638; Rountree v. McKay, "Where e.xceptions to a part of an 6 Jones (N. C.) Eq. 87: Steenrod v. answer are sustained, and the de- Railroad Co., 25 W. Va. 133. fendant does not ask leave to amend 32 McCoy V. McCoy, 20 W. Va. 704, his answer, it is not error to pro- 2 S. E. 809 ; McLeod v. Dell, Ela. eeed to hear tlie case on the bill and 427 ; Steenrod v. Railroad Co., 25 W. so much of the answer, as is not e.x- Va. 133. cepted to." Chapman v. Railroad a^Flagg V. Bonncl, 10 X. J. Eq. Co., 26 W. Va. 300; Cresap v. Cre- (2 Stock.) 82; Salmon v. Clagett, 3 sap, 54 W. Va. 581, 46 S. E. 582. Bland (Md.) 125. 39 Gardner v. Landeraft, 6 W. Va. 34 Post, chapters 27, 28, 29. 36. 35 2 Daniell, Ch. PI. and Pr. (6th « Jones v. Brittan, 1 Woods (U. Am. Ed.), 963, note, citing Miller S.) 667; National Bank v. Conn. V. Tobin, 18 Fed. 601, 9 Sawy. 401. Mut. Life Ins. Co., 104 U. S. 54; 36Shipman, Eq. PI., 141. Hughes v. Harvey, 75 Va. 200; Kuhn 37 Huntington v. Saunders, 14 Fed. v. Mack, 4 W. Va. 186, 193. 907. 753 Consolidation and Hearing op Causes § 589 properly alleged in the bill are admitted to be true.'" The de- murrer can, not be defeated by proposing to amend the bill at the time of the hearing on demurrer," unless, of course, the plaintiff concede the insufficiency of his bill, allow the demurrer to be sustained and then submit a motion to the court for leave to amend. ^^ The usual course of proceeding, when the demurrer comes on for hearing, and all parties appear, is for the counsel in support of the demurrer lo be heard first, next the plaintiff's counsel, and then the leading counsel for the demurring party replies.^* A final hearing on the demurrer of one of two de- fendants may be had, although the other defendant has not appeared, provided sufficient has been disclosed to enable the court to determine the rights of all the parties concerned.*^ § 589. When case may be heard as to a part of the defendants. As a general rule, a suit in equity can not formally be heard and disposed of as to some of tlie parties, unless it is in a situ- ation to be disposed of as to all those who are necessary parties to the cause.'"' That is, equity will not hear and determine a cause piecemeal.*^ But it is provided by statute in the Vir- ginias that if a cause has been set for hearing as to any defend- ant, it shall be heard as to him, unless his interests be so con- 411 Barbour, Ch. Pr., Ill; East 43 The course here mentioned in India Co. v. Henchman, 1 Ves. Jr. tlie text ia the one usually pursued 280; Phelps V. McDonald, 2 McAr- in practice. thur (D. C.) 375; Black v. Shreeve, " 1 Daniell, Ch. PI. and Pr. (6th 7 N. J. Eq. 440; Tallmadge >-. Lov- Am. Ed.), 502. ett, 3 Edw. Ch. (N. Y.) 563; Chi- 45 Morgan v. Scott, Minor (Ala.) cago, St. L. & N. 0. R. Co. v. Ma- SI, 12 Am. Dee. 35. comb, 2 Fed. 18; Gray v. Regan, 23 ■i6:MeClain v. French, 2 T. B. Mon. Miss. 304; Allen V. South Penn Coal (Ky.) 147; Eslava v. Lepetre, 21 Co., 58 W. Va. 197, 52 S. E. 454; Ala. 504, 56 Am. Dee. 266; Wilson Wells V. Simmons, 61 W. Va. 105, v. Carrico, 46 W. Va. 466, 33 S. E. 55 S. E. 090. 237. i^jieteher, Eq. PI. and Pr., §228, 4^ Leonard v. Smith, 34 W. Va. citing Mutual Reserve Fund Life 449, 12 S. E. at p. 482. Assn. V. Bradbury, 53 N. J. Eq. 643, 33 Atl. 960. § 590 Equity Procedure 754 nected with those of other defendants in the suit that it would be improper to decide upon their interests separately.** But it would seem, even under this statute, that the interests of the defendant or defendants against whom the decree is rendered must be so separate and distinct from the other defendant or defendants that such decree will not interfere with the rights or liabilities of those as to whom no hearing was had at the time of the rendition of the decree.*^ § 590. When a cause may be finally heard. A cause may finally be heard when it is ready for a hear- ing.^" though not formally set for hearing, if no objection be made to its being heard because not set for hearing.'^ And when a cause is ready for a hearing, after being set for hear- ing, the hearing ought not to be delayed except for good cause.^^ Thus, when an administrator is proceeding to enforce a judgment recovered by him against persons who are dis- tributees of the estate, the hearing will not be delayed until there is a settlement of the administrator's a&eounts.^' So, if a court is satisfied that the plaintiff's death has been suggested by the defendant without any knowledge on the part of such defendant that the plaintiff is dead, and that such suggestion has been made only for the purpose of delay, the court may disregard such suggestion and render final decree in the cause, if ready for hearing.^* So, where a demurrer to a bill has been sustained and the bill has been amended at bar, the hearing of the cause can not be continued as matter of right. ^^ Nor can the hearing be delayed by the defendant upon the mere filing 48 W. Va. Code, 1013, u. 125, § 51 : I?eynolds v. The Bank, 6 Gratt. (Va.) Va. Code, 1004, §3202. 174 ; Baker v. Oil Tract Co., 7 W. •19 Dauglierty v. Walters, 1 Ohio Va. 454. Seeoii/r, cli. 22, "Continvi- St. 201 ; Evans v. Wait, 5 J. J. anees." Marsh. (Ky.) 110. =3 Wyatt v. TliompsoTi, 10 W. Va. soKuhn V. Mack, 4 W. Va. 186. 645. See a«te, §§ 280, 283. "Gillespie v. Bailey, 12 W. Va. lii See same citations. 70. 52 Gardner v. Landeraft, 6 W. Va. =5 Taylor v. Cox, 32 W. Va. 148, 36; Linn V. Patton, 10 W. Va. 187; n S. E. 270. See on-. Lowther, 35 W. Va. ante, §346. 300, 13 S. E. 990; Edgell v. Smith, «i 1 Boacli, Vo,\. Eq. Pr., § 161; 50 W. Va. 349, 40 S. E. 402. aiitr, §§ 346, 578. cs Burley v. Wells, 14 W. Va. 264-, "'^ 1 Bcacli, Jlod. Eq. Pr., § ■>:ii. Edgell V. Smith, 50 W. Va. 349, 4iJ >>■■> Idem, § 126; ante, § 155. S. E. 402. § 593 Equity Procedure 756 tion in the court may be raised at the hearing," even though not made the subject of demurrer or other pleading,^^ unless the bill shows on its face proper matter of jurisdiction, and that the parties are also within the jurisdiction of the court, when exceptions for want of jurisdiction must be raised by plea in abatement."^ And a bill not alleging any ground for relief will be dismissed at the hearing, though no demurrer was filed to it.^'' § 593. The manner of hearing a case. The usual manner of presenting a case to the court is for the plaintiff's counsel to lead the bill, or state its nature, to the court, and the defendant's counsel to do likewise as to the an- swer or pleadings constituting the defense ; after which, the plaintiff's counsel reads the evidence in support of the bill, and then the defendant's counsel reads the evidence for the de- fense; and if there is any rebutting evidence, it is then read.^^ The party holding the affirmative of the issue has the right to open and conclude the argument.^' If the case is heard on bill, and cross-bill, answers and depositions, the plaintiff in the original bill is entitled to the opening and closing of the case.'" oiGreen V. Masaie, 21 Gratt.(Va.) dolph Co., 05 W. Va. 721, 63 S. E. 356; Becldey v. Palmer, 11 Gratt. 613. (Va.) 625; 3ravely v. Gravel\-, S4 6d Poindexter >-. Burwell, 82 Va. Va. 151, 4 S. E. 218. 507; Western rnion Tel. Co. v. Pet- In the case of Gravely v. Gravely, tyjolm, 88 Va. 296, 13 S. E. 431; s«pra, Richardson, J., in his opinion, Cresap v. Kemble, 26 W. Va. 603; says: "However it may be elsewhere, Buskirk v. Eaglaml, 6.5 W, Va. 749, the well-settled doctrine in Virginia 65 S. E. 101. is that if a bill does not state a ease «" Wells v. Hughes, SO Va. 543, proper for relief in equity, the court 16 S. E. 689. will dismiss it at the hearing, though 67 Willis v. Willis, 42 W. Va. .'522, no objection has been taken to the 26 S. E. 515. jurisdiction by the defendant in his "S 2 Beach, Jlod. Eq. Pr., §§631, pleadings. Hudson v. Kline, Gratt., 632, citing Gibson's Suits in Chan- 379; Becldey v. Palmer, 11 Gratt., eery, § 524: Puterbaugh, Ch. PL 625; Green & Suttle v. Uassie, 21 and Pr. {3rd Ed.), 243. Gratt., 356; Salamoric v. Keiley, 80 '^'^ Idem. Va., 86." See Ward v. Hotel Ran- ■'o Idem. 757 Consolidation and Hearing of Causes § 593 In West Virginia, it is provided by statute that every divorce ease shall be tried, and the witnesses shall be examined, before the court in chambers, unless the court shall refer the cause to a commissioner i_i chancery for the purpose of taking the testi- mony.'^ And, in West Virginia, by leave of court' and agree- ment of counsel, the witnesses in any chancery cause may be brought in to testify personally before the court the same as if in an action at law.'^ The statute further provides generally for the hearing of all chancery causes in the vacation of the court, provided the parties, "in person or by counsel, next friend or guardian ad litem," shall consent to such hearing." '1 W. Va. Code, 1916, c. 64, § 15. motion, action at law, chancery T2 W. Va. Code, 1918, c. 131, § 26; cause, or matter of law or fact, to Acts, 1917, c. 65. be submitted for decision and de- '3 W. Va. Code, 1918, c. 131, § 27; cree, judgment or order in vaca- Acts, 1917, c. 65. tion) ; provided, that no such con- "(. . . and such court may, sent shall be necessary as to any either in term or vacation, without defendant [against] whom the cause, such consent, when it desires time action or motion has been matured to consider its judgment as to any by order of publication, and who has motion, action at law, chancery not appeared by motion, demurrer, cause, or matter of law, or fact plea or answer." Idem. A similar arising therein, which has been fully statute prevails in Virginia. Va. argued and submitted, direct such Code, 1904, § 3427. CHAPTER XXVT THE DECREE § 594. Classification and definition of decrees. § 595. The difference in effect between an interlocutory and final decree, S 596. What decrees may be reviewed by appeal. § 597. Classification of final decrees. § 598. What orders and decrees entered in the cause are reviewable upon ayi appeal from a final decree. S 599. A decree may be final as to one party and not as to another. § 000. Decrees entered in vacation. § 601. Jurisdiction of the court essential to tlie rendition of a decree. § 602. Jurisdiction of the court essential to the rendition of a decree — further considered. § 603. Ko decree can be entered c,\cept tliat authorized by the pleadintts. § 604. The effect of a decree. § 605. As to the effect of recitals in a decree. § 606. Only tlie papers mentioned in a decree a, part of tlie record in chancery. § 607. IS^o decree can be rendered in the absence of necessary or proper larties. § 60b rt'hen a decree between codefendants may be rendered. § 609. Consent decree, its effect, and how avoided. § 610. Decrees pro confesso. § 611. Decrees pro confesso further considered. § 612. As to the effect of a decree pro confesso. § 613. When a personal decree may be rendered against a defendant. § 614. When a personal decree may be rendered — further considered. § 615. Decree should lie definite and certain. § 616. Conditions and reservations in a decree. § 617. The decree should adjust tlie rights of all the parties. § 618. The decree in matters of account. § 619. The decree in eases of alimony. § 620. The decree in matters of attachment. § 621. The decree in the matter of the cancellation or reformation of con- tracts. § 622. The decree in the matter of the cancellation or reformation of con- tracts furtlier considered. — The removal of a cloud from title to real estate. 758 759 The Decree § 623. The decree in the matter of contrihution. § 624. The decree in the matter of corporations. § 625. The decree in the matter of creditors' suits. § 626. The decree in the matter of creditors' suits further considered.^ The enforcement of judgment liens. I 627. The decree in the matter of creditors' suits further considered. — - The enforcement of judgment liens further considered. § 628. Tlie decree in the matter of creditors' suits further considered. — The enforcement of judgment liens concluded. § 629. The decree in the matter of creditors' suits further considered. — The administration of the assets of the estate of a decedent. I 030. Tlie decree in the matter of creditors' suits further considered. — Setting aside fraudulent conveyances. § 631. The decree in the matter of creditors' suits further considered. — As to attempting to create a preference among creditors. § 632. The decree in the matter of divorce. S 633. The decree in the matter of infants. § 634. The decree in the matter of injunctions. § 635. The decree in the matter of interest. § 636. Tlie decree in the matter of interest furtlior considered. — Compound interest. § 637. The decree in the matter of joint defendants. § 638. The decri 9 in the matter of liens. § 630. The decree in the matter of liens further considered. § 640. The decree in the matter of lost instruments. § 641. The decree in the matter of new trials. § 642. The decree in the matter of partition. 1) 643. The decree in the matter of partnership. § 644. Tlie decree in the matter of principal and surety. § 645. The decree in the matter of tho specific performance of contracts. § 646. Tlie decree in the matter of trusts and trustees. — The appointment of a trustee. § 647. The decree in the matter of trusts and trustees further considered. — The removal of a trustee. § 648. The decree in tlie matter of trusts and trustees further considered.— Instructions to the trustee. § 649. The decree in the matter of trusts furtlicr considered. — Misapplica- tion or diversion of trust funds. S 650. The decree in the matter of usury. ■ § 651. The decree in the matter of wills — contest or. § 652. The decree in the matter of wills further considered — construc- tion of. § 653. A judge interested in the cause can render no decree therein. § 654. As to tlie court's reason assigned for the rendition of its decree. § 655. The decree can not exceed the demand made in the bill. § 656. As to a decree rendered upon a conflict of evidence. §594 Equity Procedure 760 § 594. Classification and definition of decrees. A decree is the sentence or adjudication made by the law, spoken through a court, upon the ease made upon the proof in accordance with the issue or issues made by the pleadings.^ There are two kinds of decrees, known as interlocutory and final. ^ We have already seen what a final decree is.^ A decree will usually be treated as interlocutory whenever any further action of the court is necessary to complete the relief contem- plated by the court.* So, a decree is interlocutory which does not adjudicate all the matters in controversy between the par- ties.^ Thus, an order referring a cause to a commissioner to take and report an account is interlocutory.* So, an order sus- 1 Fowler v. Lewis, 36 W. Va. 112, 14 S. E. 447; 2 Beach, Mod. Eq. Pr., § 788 ; Keneweg v. Schilansky, 47 W. Va. 287, 34 S. E. 773. 2 2 Daniell, Cli. PI. and Pr. (6th Am. Ed.), 5)86 ; Fowler v. Lewis, 36 W. Va. 112, 14 S. E. 447. 'Ante, §227. See Childers v. Loudin, 51 W. Va. 559, 42 S. E. 637; Hill V. CroTiin, 56 W. Va. 174, 49 S. E. 132; Barbour et al. v. Tomp- kins, 58 W. Va. 572, 52 S. E. 707, 3 L. R. A. (N.S.) 715; Ash v. Lynch, 72 W. Va. 238, 78 S. E. 365; Stull V. Harvey, 112 Va. 816, 72 S. E. 701; Collier v. Seward, 113 Va. 228, 74 S. E. 155; Jones v. Buckingham Slate Co., 116 Va. 120, 81 S. E. 28; Goode V. Bryant, 118 Va. 314, 87 S. E. 588. 4 Miller v. Cook, 77 Va. 806 ; Cocke V. Gilpin, 1 Rob. (Va.) 20; Sims v. Sims, 94 Va. 580, 27 S. E. 436, 64 Am. St. Rep. 772; Repass v. Moore, 96 Va. 147, 30 S. E. 458. See eases cited in preceding note. = Smith V. Evans, 42 W. Va. 352, 26 S. E. 347; Shirey v. Musgrave, 'i9 W. Va. 131, 11 S. E. 914; Hill V. Als, 27 W. Va. 216; Hogg, Eq. Princp., § 287. See cases cited in note 3, supra. "Whenever a particular relief is contemplated, if anytliing remains to be done by the court to make the relief effectual, the decree is inter- locutory." Ryan v. McLeod, 32 Gratt. (Va.) 367. But see, Hill v. Cronin, 56 W. Va. 174, 49 S. E. 132, holding that "a decree in [a] chan- cery cause, such as will support an appeal, is not necessarily the last decree rendered, by which all pro- ceedings in the cause are terminated, and nothing is left open for the future judgment or action of the court; but it is a decree which de- termines tlie substantial merits of the controversy — all the requisites of the case — though there may re- main a reference to be had, or the adjustment of some incidental or dependent matter.'' See post, § 598. « Kanawha Lodge v. Swann, 37 W. Va. 176, 16 S. E. 462; Warren v. Syme, 7 W. Va. 474; Templeman v. Steptoe, 1 Munf. (Va.) 339. 761 The Decree §594 taining a demurrer and giving the complainant leave to amend his bill is interlocutory.' 7 Campbell v. Powers, 139 111. 128, 28 N. E. 1002; Bosworth v. Wilson, 57 W. Va. 80, 49 S. E. 942. Like- wise as to an order overruling a de- murrer. Parsons v. Snider, 42 W. Va. 517, 26 S. E. 285. For a well-considered opinion re- lating to the distinction between final and interlocutory decrees, see that of Baldwin, J., in Cocke v. Gil- pin, 1 Rob. (Va.) at pp. 26, 27, fol- lowed and approved in Collier y. Seward. 113 Va. 228, 74 S. E. 155. In further illustration of what constitutes an interlocutory decree, we here subjoin the following: The beneficiaries of a will brought a bill to have the estate adminis- tered by the court, and sales of land by the executor checked and regu- lated. The transactions of the ex- ecutors were settled as far as they had gone, and the balance appearing on their accounts was decreed to the parties entitled; but, as the land was not all sold, the cause was not removed from the docket, and no final decree was entered, the objects of the suit not having been fully ac- complished. Held, that the decree was in no sense final, and was no bar to a suit by the same plaintiffs, to correct accidental errors in the ac- counts settled in the former suit. Yates V. Wilson, 86 Va. 625, 10 S. E. 976. "H. brought a chancery suit to en- force a vendor's lien against the lands of A., and to attach his prop- erty, and that of his surety, C, A. and C. being alleged to be nonresi- dents of the state. The court ascer- tained their indebtedness, when it rendered its decree, to be $3,504.52, and that they would be further in- debted at a future period, $10,307 more. In ascertaining this indebted- ness, the court charged them with compound interest on the purchase money of the land; did not allow a, credit of $750 for which the land had been rented out under a previ- ous order of the court, and before decreeing a sale of the land which was subject to the vendor's lien, did not collect and apply certain effects in the hands of a tliird party due to A., and which was attached. The court decreed that the plaintiff re- cover of A. and C. said sum of $3,507.52, with interest, and unless same was paid in tliirty days, spe- cial commissioners, appointed by the court, should sell A.'s land which was subject to this vendor's lien. In the same decree, it was further ad- judged, that the $10,307, to become due, was also a vendor's lien on this land, and that it was likewise a lien, on the property of A. and C. which had been levied on under the attach- ment; and leave was given the plaintiff, thereafter, to apply for a decree to sell the lands of C. at- tached, and also to apply for a de- cree to enforce the payment of the $10,307. Under this decree a sale was made which was confirmed, and more than five years afterwards, C. filed his answer and afterwards a, petition to rehear these decrees. The court refused to rehear these decrees, and ordered the sale of C.'s lands, attached to pay the balance due plaintifi', ascertained, by assum- ing the amount named in the former decree of sale, as showing the real . amount then due. C. appeals from §595 Equity Procedure 762 §595. The difference in effect between an interlocutory and final decree. The distinction between an interiocutory and final decree, ac- cording to the English practice, is that the former is not, while this decree and tliose preceding on which it was based, field: 1. The first decree of sale, and tlie decree confirming tlie sale were both inter- locutory decrees, and not final either as to A. or C." Camden v. Hay- mond, 9 W. Va. 680, approved in Kerfoot v. Dandridge, 69 W. Va. 337, 71 S. E. 306. In a suit involving the right of access to a. well, a decree was en- tered which directed tliat the plain- tiff should have uninterrupted ac- cess to tlie water of tlie well, unless and until otherwise ordered by the court; that the injunction before awarded, which was only until the rights of the complainants could be considered and adjudicated, should be continued ; that an account should be taken by a commissioner to as- certain the amount of expenses in- curred by the father of the defend- ant, from whom the defendant claimed, and by the latter in keep- ing the well in repair, and the amount paid by the plaintiffs; and that the account when taken should be reported. The rights of the par- ties were not finally adjudicated; the injunction was not perpetuated ; the decree directed an account to be taken and reported, but it did not determine the question of costs nor direct their payment. The decree was merely interlocutory. Warren V. Syme, 7 W. Va. 474. In a suit to set aside certain conveyances and to subject the lands conveyed therein to the satisfaction of a judgment, a decree that sets aside the conveyances and refers the cause to a commissioner for inquiry and report, with a view to further action in tlie cause, is an interlocu- tory and not a final decree, as it is a step preliminary to subjecting the land to the judgment. Welsh v. Solenberger, 85 Va. 441, 8 S. E. 91. A decree empowering an executor to sell the lands of his testator, for payment of debts, and to report his proceedings in execution thereof to the court, is not final, but inter- locutory. Goodwin v. Miller, 2 ilunf. (Va. ) 42. A decree which directs a sale of the defenS. Peyton v. Cabell, 25 W. Va. r40. § 601 Equity Procedure 778 on the same judgment had been levied by the sheriff on the property of another defendant in the execution sufficient to dis- charge it, the bill must be filed in the county in which the judgment was recovered, as the circuit court of another county has no jurisdiction of the case.^' And if a decree be rendered in favor of a plaintiff in a cause in which it appears from the whole case that equity has no jurisdiction to grant the relief sought by the bill, an appellate court will reverse the decree and dismiss the cause, though no objection to the jurisdiction was made in the lower court."^ But it is held that, if a bill does not state a case on its face proper for equitable jurisdic- tion, and it has not been demurred to, yet if such defect or omission is supplied by the pleadings and proofs in the cause, whereby it is made to appear that a court of equity has juris- diction of the cause, the court will not dismiss the bill at the hearing."'' If the court is without jurisdiction as to the subject matter of the suit, consent of parties can not confer such juris- diction upon the court.'" But a liberal presumption is indulged in support of the jurisdiction of courts of general powers ; '^ and if several grounds are apparent from the record, whereon the court might have acted, it is presumed to have acted on e^Bockley v. Palmer, 11 Gratt. Am. St. Rep. 89.5; Buskirk v. Rag- (Va.) 625. See ante, oh. 1, Sealing land, 65 W. Va. 740, 65 S. E. 101: with venue. Thomas, Andrews & Co. v. Town of «s Green v. Massie, 21 Gratt. (Va.) Norton, 110 Va. 147, 65 S. E. 466; 356 ; Buffalo v. Town of Pocahontas, Yates i-. Taylor County Court, 47 W. 85 Va. 225, 7 S. E. 238: Ward v. Va. 376, 35 S. E. 24. Hotel Randolph Co., 65 W. Va. 721, "Wade v. Hancock, 76 Va,. 620; 63 S. E. 613; Buskirk v. Ragland, Turner v. Barraud, 102 Va. 324, Ki 65 W. Va. 749, 65 S. E. 101; ante, S. E. 318; Carter's Admr. v. Skill- § 592. man, 108 Va. 204, 60 S. E. 775 ; St. «s> Salamone v. Keiley, 80 Va. 95. Lawrence Co. v. Holt & Mathews, 51 Sw James v. Burhridge, 33 W. Va. W. Va. 352, 361, 41 S. E. 351 ; Em- 272. 10 S. E. 396. pire Coal & C. Co. v. Hull Coal & C "'Bogle V. Fitzhugh, 2 Wash, Co., 51 W. Va. 474, 41 S. E. 917: (Va.) 213; Ohio River Ry. Co. v. Starr v. Sampselle, 55 W. Va. 442. Gibbens, 35 W. Va. 57, 12 S. E. 47 S. E. 255; Plant v. Humphries, 1093; Freer v. Davis, 52 W. Va. 1, 66 W. Va. 88, 66 S. E. 94, 26 L. R. 43 S. E. 164, 59 L. R. A. 556, 94 A. (N.S.) 558. 779 The Deceee § 602 that ground which gave it jurisdiction, and not upon the others ;^^ but no presumption is made in favor of the court's jurisdiction where the record shows an entire want thereof.'^ § 602. Jurisdiction of the court essential to the rendition of a decree further considered. It is a well-settled doctrine, underlying every system of en- lightened jurisprudence, that every person is entitled to a day in court to defend his rights; and that any judgment, sentence or decree rendered against him, when no opportunity has been afforded him to make his defense, is a nullity, and will be so declared by any court in which it may be drawn into contro- versy.''* Within the purview of this principle, a person must not only be served with process emanating from the court in which the cause is pending, or appear gratis without the issu- ance or service of process,'^ but he must be a party to the suit.'^ The mere fact that a person has knowledge that a suit is pending, as where he gives his deposition in it, is not notice to him of its pendency within the contemplation of law and 72 Woodhouse V. Fillbates, 77 Va. 614; Fultz v. Brightwell, 77 Va. 317. 742; Bland v. Wyatt, 1 H. and M. 73 Wade V. Hancock, 76 Va. 620; (Va.) 543; Sturm v. Fleming, 22 W. Dillard v. Central Virginia Iron Co., Va. 404; Grinnan v. Edwards, 21 W. 82 Va. 734, 1 S. E. 124. On the con- Va. 347 ; Raymond v. Camden, 22 W. trary, the plaintiff himself who has Va. 180; Mcllwaine, Knight & Co. v. invoked the aid of the court is not Fielder, 76 W. Va. Ill, 85 S. E. 548; so estopped to deny its jurisdiction. White v. White, 66 W. Va. 79, 66 S. Freer v. Davis, 52 W. Va. 1, 43 S. E. 2, 24 L. E. A. (N.S.) 1279, 135 E. 164, 59 L. R. A. 556, 94 Am. St. Am. St. Rep. 1013; Fulton v. Ram- Rep. 895. sey, 67 W. Va. 321, 68 S. E. 381, 140 7*0gden V. Davidson, 81 Va. 757; Am. St. Rep. 969. Robinson v. Dix, 18 W. Va. 528, As to how parties may be served 540; Fultz v. Brightwell, 77 Va. with process, see ante, §§ 14-21. 742; Myers v. Nelson, 26 Gratt. 76 Ogden v. Davidson, 81 Va. 757 (Va.) 729; Mcllwaine, Knight & Co. Robinson v. Dix, 18 W. Va. 528 V. Fielder, 76 W. Va. Ill, 85 S. E. Fultz v. Brightwell, 77 Va. 742 548. See Maynard v. Shein, 83 W. Hobson v. Yancey, 2 Gratt. (Va.) Va. 508, 98 s". E. 618. 72; Shaffer v. Fetty, 30 W. Va. 248, 75 Purdie v. Jones, 32 Gratt. ( Va.) 4 S. E. 278; Bank v. Wilson, 29 W. 827; Beery V. Trick, 22 Gratt. (Va.) Va. 64.5, 2 S. E. 768; Morgan v. §603 Equity Procedure 780 the principle hereinbefore stated.'^ If a court has jurisdiction of the subject matter in controversy and the parties to the suit, ■and thus has the authority to decide between the parties, the court does not lose its jurisdiction because it exercises its au- thority improperly or incorrectly.''^ But if the court, having rightful jurisdiction, in the progress of the cause exceeds it, the decree rendered in excess of its jurisdiction will be void.''' § 603. No decree can be entered except that authorized by the pleadings. It is of primary importance that the court keep within the scope of the pleadings in the rendition of its decrees,*" as any finding or decree not authorized by the pleadings is absolutely void.*^ This is founded upon the principle that "a decree is a Blatchley, 33 W. Va. 155, 10 S. E. 282; McCoy v. Allen, 16 W. Va. 724; Hatch V. Calvert, 15 W. Va. 90; Harper v. South Penn Oil Co., 77 W. Va. 294, 87 S. E. 483; Roberts v. Ward, 85 W. Va. 474, 102 S. E. 96. Nor, generally, can a decree be en- tered in favor of a stranger to the cause. Post, § 617. As to how a person may be made a party to a suit, see ante, § 98. '7 Edichal, etc., Co. v. Columbia, etc., Co., 87 Va. 641, 13 S. E. 100. Even though a party intervenes in a suit by petition, thus setting forth his interest in the subject matter, he does not so become a party and tlie court is without jur- isdiction to affect his rights unless he be made a party by proper alle- gations in the bill. Ralplisnyder v. Titus, 63 W. Va. 460, 60 S. E. 494; Gall V. Gall, 50 W. Va. 523, 40 S. E. 380. '8 Lawson v. Moorman, 85 Va. 880, 9 S. E. 150; Rhea v. Shields, 103 Va. 305, 49 S. E. 70; Starr v. Sampselle, 55 W. Va. 442, 47 S. E. 255. See the multitude of cases cited in 8 Encyc. Dig. Va. & W. Va. Rep. 851, and additional cases cited in note 83, infra. "The power of a court to decide erroneously, respecting matters within its jurisdiction, is as clear and undoubted as its power to de- cide correctly." Powhatan Coal & C. Co. V. Ritz, 60 W. Va. 395, 56 S. E. 257. 79 Seamster v. Blackstock, 83 Va. 232, 2 S. E. 36, 5 Am. St. Rep. 262; Powhatan Coal & C. Co. v. Ritz, 60 W. Va. 395, 56 S. E. 257; Linkous v. Stevens, 116 Va. 898, S3 S. E. 417. 8" Hunter v. Hunter, 10 W. Va. 321; Baugher v. Eichclberger, 11 W. Va. 217; Tracy v. Tracy, 14 W. Va. 243. 81 Seamster v. Blackstock, 83 Va. 232, 2 S. E. 36, 5 Am. St. Rep. 262; Atherton v. Hull, 12 W. Va. 170; Munday v. Vail, 34 N. J. L. 41S; Reynolds v. Stockton, 43 N. J. Eq. 211, 10 Atl. 385, 3 Am. St. Rep. 305; 1 Freeman on Judgments, § 120a; Waldron v. Harvey, 54 W. 781 The Decree 603 conclusion of law from the pleadings and proofs, so that where there is a failure of either there can be no decree ; there can be no decree without allegations in the pleadings to support it. "*^ Va. 608, 46 S. E. 603, 102 Am. St. Rep. 959; Lilly v. Claypool, 59 W. Va. 130, 53 S. E. 22; Perkins v. Pfalzgraff, 60 W. Va. 121, 53 S. E. 913; Linkous v. Stevens, 116 Va. 898, 83 S. E. 417; Conrad v. Crouch, 68 W. Va. 378, 69 S. E. 888; Blaek v. Crouch, 85 W. Va. 22, 100 S. E. 749; Simmons v. Sim- mons, 85 W. Va. 25, 100 S. E. 743 ; Loekhart v. Hoke, 85 W. Va. 382, 101 S. E. 703. • Although a plaintiff may present a good case in his proofs, he is not entitled to a decree not justified by the allegations of his bill. Evans v. Kelley, 49 W. Va. 181, 38 S. E. 497 ; Truslow v. Parkersburg, B. & T. R. R. Co., 61 W. Va. 628, 630, 57 S. E. 51. 82 Keneweg Co. v. Schilansky, 47 W. Va. 287, 34 S. E. 773; Vance Shoe Co. V. Haught, 41 W. Va. 275, 23 S. E. 553; Fadely v. Tomlinson, 41 W. Va. 606, 24 S. E. 645; Wass v. Wass, 41 W. Va. 126, 23 S. E. 537; Lang v. Smith, 37 W. Va. 725, 17 S. E. 213; Handlan v. Handlan, 37 W. Va. 486, 16 S. E. 597; Rob- erts V. Coleman, 37 W. Va. 143, 16 S. E. 482; Bierne v. Ray, 37 W. Va. 571, 16 S. E. 804; Bland v. Stewart, 35 W. Va. 518, 14 S. E. 215; Armstrong v. Town of Graf- ton, 23 W. Va. 50 ; Truslow v. Par- kersburg, B. & T. R. R. Co., 61 W. Va. 628, 57 S. E. 51; Armentrout V. Armentrout, 70 W. Va. 661, 74 S. E. 907; Armstrong, Crislip, Day & Co. V. Painter, 75 W. Va. 393, 83 S. E. 1027; Newberry v. Button, 114 Va. 95, 75 S. E. 785; Linkous V. Stevens, 116 Va. 898, 83 S. K. 417. Mr. Freeman, in his work on Judgments, Vol. 1, § 120c, says: "It is very easy to conceive of judg- ments which, though entered in cases over which the court had un- doubted jurisdiction, are void be- cause it decided some questions which it had no power to decide, or granted some relief which it had no powers to grant." And again, in the same section, the author says : "In some instances courts have undertaken to decide questions not involved in the suit or action before them, and to grant relief therein; and their judgments have been assaulted for that reason, and to the extent which they departed from the matters embraced within the record they have been denied eflfect." In the case of Munday v. Vail, 34 N. J. L. 418, the court said: "Juris- diction may be defined to be the right to adjudicate concerning the subject matter in the given case. To constitute this, there are three essentials: first, the court must have cognizance of the class of cases to which the one to be adjudged be- longs; second, ihe proper parties must he present; and, third,, the point decided must Tie, in suhstanee and effeet, within the issue. That a court can not go out of its ap- pointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by a multi- tude of authorities. A defect in a, judgment arising from the fact that the matter decided was not em- braced within the issue has not, it would seem, received much judicial § 604 Equity Proceduke 782 § 604. The effect of a decree. It is well settled that the decrees of a court of general juris- diction, acting within the scope of its authority, are presumed to be correct, until the contrary appears, and are not open to consideration. And yet I can not doubt that, upon general principles, Bucli a defect must avoid a judg- ment. It is impossible to concede that because A. and B. are parties to a suit, that a court can decide any matter in which they are inter- ested, whether such matter be in- volved in the pending litigation or not. Persons, by becoming suitors, do not place themselves, for all pur- poses, under the control of the court, and it is only over these par- ticular interests which they choose to draw in question that a power of judicial decision arises. If, in an ordinary foreclosure case, a man and his wife being parties, the court of chancery should decree a divorce between them, it would require no argument to convince every one that such decree, so far as it attempted to affect the matrimonial relation, was void; and yet the only infirm- ity in such a decree would be found, upon analysis, to arise from the cir- cumstance that the point decided was not within the substance of the pending litigation. In such a case the court would have acted within the field of its authority, and the proper parties would have been present; the single but fatal flaw having been the absence from the record of any issue on the point de- termined. The invalidity of such a decree does not proceed from any mere arbitrary rule, but it rests entirely on the ground of common justice. A judgment upon a matter outside of the issue must, of neces- sity, be altogether arbitrary and un- just, as it concludes a point upon which the parties have not been heard. And it is upon this very ground that the parties have been heard, or have had the opportunity of a hearing, that the law gives so conclusive an effect to matters ad- judicated." In a later case in New Jersey, Eeynolds v. Stockton, 43 N. J. Eq. 211, 10 Atl. 385, 3 Am. St. Eep. 305, the same doctrine was reaffirmed, and the general rule laid down that "a decree or judgment which is not appropriate to any part of the mat- ter in controversy before the court, can have no force." In the case of Seamster v. Black- stock, 83 Va. 232, 3 S. E. 36, 5 Am. St. Eep. 262, a widow brought suit for the sole purpose of having dower assigned to her, and the court, after assigning it, of its own accord, di- rected the sale of the residue of the land for division among minor heirs, but the supreme court of Virginia held that the lower court "in de- creeing a sale of the residue of the land, after allotting the widow's dower, went far heyond the case made iy the hill, or anything con- templated thereby, and plainly ex- ceeded its jurisdiction," and that that part of the decree was void. The supreme court in the same case at p. 234, says : "It is an ele- mentary principle in our jurispru- dence, that jurisdiction of the sub- ject matter and the parties is essen- tial to the conclusiveness of a judg- 783 The Decree §604 collateral attack.^^ Thus, a deed can not be excluded from evi- dence in ejectment on the ground that the decree in pursuance of which it was executed was entered when one of the pur- chasers was dead, as the decree which directed the deed to be made to the purchasers or their vendees imports that he was then alive, and can not be collaterally attacked when the record discloses nothing to the contrary.^'' ment or decree. And though a court may obtain jurisdiction rightfully, yet its decree may be void, be- cause, in tlie progress of the cause, it has exceeded its jurisdiction. The adjudged cases furnish numerous examples of this kind. Tlius, where a bill is filed to sell a certain lot, and a decree is entered for the sale of another and different lot, not named in the bill, and to which the bill has no relation, such decree as respects the last-mentioned lot, is a nullity.'' A decree in excess of the power or authority of the court can not be enforced and may be made the subject of a writ of prohibition. Coger V. Coger, 48 W. Va. 135, 35 S. E. 823. See the able opinion of Poffenbarger, J., in St. Lawrence Boom & Mfg. Co. V. Holt, 51 W. Va. 363, 41 S. E. 351-361, as to the pleadings in the cause as an element of jurisdiction. But "judgments and decrees are not collaterally assailable as void for want of jurisdiction in the court to enter them, merely because the pleadings on which they rest lack material averments. "The power to decide upon the sufficiency of a cause of action as presented by the complainant's pleading, like the power to decide any other legal proposition, is binding except as to direct proceed- ings of review or appeal." Jarrell V. Laurel Coal & L. Co., 75 W. Va. 752, 84 S. E. 933. 83 Pugh V. McCue, 86 Va. 475, 10 S. E. 715; Lawson v. Moorman, 85 Va. 880, 9 S. E. 150; Pennybacker V. Switzer, 75 Va. 671; Brengle v. Richardson, 78 Va. 406; Carberry V. Railroad Co., 44 W. Va. 260, 28 S. E. 694; Stewart v. Stewart, 27 W. Va. 167; St. Lawrence Co. v. Holt, 51 W. Va. 352, 41 S. E. 351; Starr v. Sampselle, 55 W. Va. 442, 47 S. E. 255; White v. White, 66 W. Va. 79, 66 S. E. 2, 24 L. R. A. (X.S.) 1279, 135 Am. St. Rep. 1013; Darnell v. Flynn, 69 W. Va. 146, 71 S. E. 16; Central District & P. Telegraph Co. v. Parkersburg & 0. V. E. Railway Co., 76 W. Va. 120, 85 S. E. 65; Irvine v. Randolph Lumber Corporation, 111 Va. 408, 69 S. E. 350; Alvis v. Saunders, 113 Va. 208, 74 S. E. 153; Saunders V. Terry, 116 Va. 495, 82 S. E. 68; Shanks v. Calvert Mortgage and De- posit Co., 119 Va. 239, 89 S. E. 99; Lemley v. Wetzel Coal & Coke Co., 82 W. Va. 153, 95 S. E. 646. See the great number of additional cases cited in 8 Enc. Dig. Va. & W. Va. Rep., 545 et seq. But it is other- wise where the court lacks jurisdic- tion. 84 W. Va. 575, 100 S! E. 482 84 Pugh V. MeCue, 86 Va. 475, 10 S. E. 715. For the consideration of the sub- ject of decrees as res judicata, see ante, § 400. §605 ]']quity Procedure 784 § 6C5. As to the effect of recitals in a decree. "While it is usual in practice to recite in the decree that all the preliminary steps toward maturing the cause for hearing have been taken, it is not necessary to the validity of the decree to do so,^^ it being intended, where the cause is set for hearing, that it was regularly done.*' Still, it is the better practice, that the decree should show on its face that the cause was regu- larly matured for hearing,*' and also upon what the cause was heard,^^ as it will be considered that the cause was heard upon the papers and evidence upon which the decree declares it was heard ; *' and the recital of a matter in a decree as a fact found by the court, where the contrary does not appear from the rec- ord, as that a party was served with process to answer the bill,'^" or that a person to whom a cause is referred to take an account.designated as "a master commissioner of the court," is such,"^ or that an order of publication as to absent defendants "was duly executed,"'^ is conclusively presumed to be true in 85 Quarrier v. Carter, 4 II. and M. (Va. ) 242; Linsey v. McGannon, 9 W. Va. 154; Riggs v. Lockwood, 12 W. Va. 133; Towner v. Towner, 65 W. Va. 476, 64 S. E. 732. SB Quarrier v. Carter, 4 H. & M. (Va.) 242. 87 Riggs V. Lockwood, 12 W. Va. 133. 88Turnbull v. Clifton Coal Co., 19 W. Va., at p. 307; Renick v. Ludington, 20 W. Va., at pp. 532, 533. 89 Sims V. Bank of Charleston, 8 W. Va. 274; Renick v. Ludington, 20 W. Va. 532, 533; Shields v. Far- mers' Bank, 5 W. Va. 259. But the hearing is not necessarily con- fined to papers mentioned in the decree. Towner v. Towner, 65 W. Va. 476, 64 S. E. 732. 90 Arnold v. Arnold, 11 W. Va. 449; Central District & P. Tele- graph Co. V. Parkersburg & 0. V. E. Railway Co., 76 W. Va. 120, 85 S E. 65; Hector Coal Land Co. v. Jones, 79 W. Va. 618, 92 S. E. 102; First Nat. Bank of Webster Springs V. McGraw, 85 W. Va. 298, 101 S. E. 474. Or that a party — e. g., an infant — was served with notice. Lemley v. Wetzel Coal & Coke Co., 82 W. Va. 153, 95 S. E. 646. Or that a guardian ad litem was appointed and filed an answer for an infant. Mathews v. Wyoming Land Co., 82 W. Va. 673, 97 S. E. 130. But whether the service is regular will be determined from the return, if it is in existence. Such a recital will always be controlled by the return itself, where the recital and the re- turn are contradictory. Jones v. Crim & Peck, 66 W. Va. 301, 66 S. E. 367. As to recital of appearance of parties, see White v. Wliite, 66 W. Va. 79, 66 S. E. 2, 24 L. R. A. (N.S.) 1279, 135 Am. St. Rep. 1013. 91 Hickman v. Painter, 11 W. Va. 386. 92 Scott V. Ludington, 14 W. Va. 387; Craig v. Sebrell, 9 Gratt. (Va.) 131; Moore v. Holt, 10 Gratt. (Va.) 293; Mustard v. Wohl- ford, 15 Gratt. (Va.) 344; Durrett V. Davis, 24 Gratt. (Va.) 312; Beattie v. Wilkinson, 3ti Fed. 649; 785 The Decree §605 the absence of fraud or surprise, and can not be collaterally attacked,'' but only by original bill in the nature of a bill of review.'* Consequently, in practice, it is usual, and always advisable, to recite in the decree with care and precision all Arnold v. Arnold, 11 W. Va. 456; Hector Coal Land Co. v. Jones, 79 W. Va. 618, 92 S. E. 102. If the decree does not recite the due execution of an order of pub- lication, objection as to this may be taken by any defendant affected by the decree, even in the appellate court. McCoy v. McCoy, 9 W. Va. 444, 445. "The decree referring to the rec- ord of another suit as an exhibit in the cause, makes it a part of the record, though it is not referred to in the bill or answer, nor made an exhibit by an entry on the order book." Craig v. Sebrell, 9 Gratt. (Va.) 131. In Tracey v. Shumate, 22 W. Va. 511, it is said: "It appears on the face of this decree of, May 30, 1877, that the court referred to and based its decree in part on the record in this old chancery suit, which record was a record of the same court; and according to the decisions in Craig v. Sclrell, 9 Gratt., p. 131, and Richardson v. Donehoo, 16 W. Va., p. 685, this reference in a de- cree to the record in another suit and in the same court makes the record of the suit referred to a part of the record in the cause, in which the decree making such reference is entered." Also, in Kester v. Lyon, 40 W. Va. 166, 20 S. E. 935, it is said: "In chancery all exhibits with a, bill or answer are parts of that bill or answer, and, generally, where one paper refers to another in a manner so as to identify it, that other paper is a part of the paper referring to it. Gunn v. Railroad Co., 37 W. Va. 421 (16 S. E. 628), and citations in opinion; Bart., Ch. Prac, 345; Bias v. Vick- ers, 27 W. Va. 461, and cases cited; Craig v. Sehrell, 9 Gratt. 131; Tracey v. Shumates, 22 W. Va. 476." See ante, § 156. In Steenrod v. Railroad Co., 27 W. Va. 12, it is said: "The decree of June 5, 1880, states that the cause came on to be heard, among other things, upon the order of publication against the nonresident defendants 'duly executed.' This, according to the settled law, is con- clusive as to the due publication of the order, so far as the appellate court is concerned." 9^ Springston v. Morris, 47 W. Va. 50, 34 S. E. 766; Swift v. Yana- way, 153 111. 197, 38 N. E. 589; Moore v. Green, 90 Va. 181, 17 S. E. 872; Wilchcr v. Robertson, 78 Va. 602; Central District & P. Telegraph Co. v. Parkersburg & 0. V. E. Railway Co., 76 W. Va. 120, 85 S. E. 65; Hector Coal Land Co. V. Jones, 79 W. Va. 618, 92 S. E. 102; Law v. Law, 55 W. Va. 4, 46 S. E, 697 ; Caswell v. Caswell, 84 W. Va. 575, 100 S. E. 482. As to the effect of recital in a decree with reference to rights of third parties, see Houston v. Mc- Cluney, 8 W. Va. 135. 9* Springston v. Morris, 47 W. Va. 50, 34 S. E. 766; Law v. Law, 55 W. Va. 4, 46 S. E. 697. § 607 EQT7ITY Procedure 786 those matters upon which the cause was heard and decided by the court. Thus, if it be stated in the decree that the "cause came on to be heard on the bill, answer and exhibits," it must be understood that the cause was heard in exclusion of the depositions appearing in the record. ^^ § 606. Only the papers mentioned in a decree a part of the record in chancery. As correct chancery practice does not permit a bill of excep- tions except upon the trial of issues out of chancery,"'' it fol- lows that any paper or deposition referred to in an order or decree made in a cause in equity thereby becomes a part of the record,-'' although the paper may have only been tendered and not permitted to be tiled. ^^ It is well settled by the decisions of the courts that only those papers and depositions can be treated as a part of the record in a chancery cause that are mentioned or referred to in some order or decree entered in the suit.'^ Therefore, as already stated,^"" every paper or deposi- tion upon which the cause is to be heard should be mentioned in the decree. § 607. No decree can be rendered in the absence of necessary or proper parties. Equity delights to make a final end of litigation, so as to leave nothing open to future controversy among the parties in- 95 Shumate v. Dunbar, 6 Munf. though not mentioned in any order (Va.) 430. Butseea«'. Brown, supra. "Where suit has been brought to i=* Fisher v. White, 04 Ya. 2.36, subject lands to the payment of a 26 S. E. 5'^ ; Osborne v. Cabell, 77 lien and to set aside fraudulent eon- Va. 462; Willard v. Worsham, 76 veyances, where the report of sale Va. 302; Whitlock v. Gordon, 1 has been made, and it is found Va. Dee. 238, Va. Law Jour. 1877, there will not be sufficient nionev p. 370. produced by tlie sale to pay the i^'STatum v. Ballard, 04 Va. 370, liens, expenses of sale and costs, 26 S. E. 871; Ellett v. McGhee, 94 for whatever costs remaining after Va. 377, 26 S. E. 874. providing for the payment of the i^'' Vance Shoe Co. v. Haught, 41 liens and expense of sale, there W. Va. 275, 23 S. E. 553. should he rendered a personal de- "In a suit to subject land to the cree against all the fraudulent payment of a judgment lien and to grantors and grantees." Idem. set aside deeds for fraud against the i^i^ Vance Shoe Co. v. Haught, 41 creditor it is the practice to decree W. Va. 275, 23 S. E. 553. that the costs of the suit shall be § 615 Equity Procedure 800 In a suit to enforce a vendor's lien, a personal decree may be rendered against the purchaser for the unpaid purchase money, and the court in its discretion may authorize the enforcement of this decree before subjecting the land to the payment of the lien."^ And when it appears that the estate of one of the de- ceased obligors in a bond has been fully administered in a suit for partition to which complainant was not a party, that^the assets were sufficient to pay all claims, and that the personal representative took no refunding bond, a personal decree against him is proper.'^' § 615. Decree should be definite and certain. In adjudicating a liability and directing a recovery of money, the decree must show against whom the recovery is to be enforced, not leaving such matter uncertain or doubtful.-'^'' And a decree for the payment of money should state the amount the defendant is required to pay, and not merely direct that the plaintiff recover the amount of the debt or liability as set out and described in the bill.^^^ But in no case can the decree provide for the payment of a sum in excess of that ijs Carskadon v. Minke, 28 W. satisfied. Fayette Land Co. t. L. Va. 729. & N. R. Co., supra. Likewise, as to In a suit brought to enforce a the principal and sureties in a vendor's lien reserved on land for bond, M'here suit is brought to en- the purchase price thereof, there force a trust created to secure pay- may be a personal decree for the ment of the bond. Turk v. Ritchie, purchase money before the sale, and 104 Va. 587, 52 S. E. 33!). not merely for the balance remain- 1=9 Beverly v. Rhodes, 86 Va. 415, ing due after crediting the proceeds 10 S. E. 572. from the sale of the land. ' Delling- i<"> Snider v. Brown, 3 W. Va. er v. Foltz, 93 Va. 729, 25 S. E. 143. 998; Fayette Land Co. v. L. & N. loi Spoor v. Tilson, 97 Va. 279, R. Co., 93 Va. 274, 24 S. E. 1016. 33 S. E. 609. A decree disbursing In a suit brought to enforce a funds in a creditors' suit should vendor's lien, it is plainly within specify the amount decreed to each the jurisdiction of the court of creditor and the date from which equity, to enter a personal decree interest is to be computed. Lyle v. against the defendant, and also a Sarvey, 104 Va. 229, 51 S. E. 228; further decree for the sale of the Peale v, Grossman, 70 W. Va. 1, 73 land, if the personal decree be not S. E. 46. 801 The Deceee § 616 claimed in the bill.^*^ Where the decree provides that certain things shall be done, the time and manner of performance should be specified in the decree. ^^' § 616. Conditions and reservations in a decree. It is one of the peculiar advantages of a court of equity that it can adapt its decree to the situation of the parties as the de- mands of justice may require ; "■* and it may refuse its decree, unless the party will take a decree upon the condition of doing or relinquishing certain things."^ Thus, "when a party files a bill setting up a parol contract for the sale of real estate or the lease thereof for more than one year, and prays the specific execution thereof on the ground of part performance, etc., and the defendant in his answer denies the making of the contract as alleged, but admits that he did make a parol contract touch- ing the realty in question, or part thereof, materially different from that set up in the bill ; and from the whole evidence in the cause the court sees and is satisfied in its conscience, that a ■contract is proved clear and certain in its terms, but in some material respects different and variant from that stated in the bill or answer, the court may, in the interest of justice with the consent of the plaintiff in the exercise of a sound discretion, decree the specific execution of the contract as proved by the evi- dence or the strong preponderance of the evidence, and especially so, if the court sees and is satisfied from the whole proceedings in the cause, that injustice will not thereby be done to the de- fendant by surprise, and provided the plaintiff consents in such i74. But a eonrt lias no power to Tlie chancellor may reserve the enter a decree for alimony con- right to make such changes in the ditioned ui)on acquiescence in the amount of the alimony "as the divorce decree and renunciation of changed circumstances of the par- appellate relief against such de- ties, and the principles of justice cree. Huff v. Huff, 73 \V. Va. 330, may require.'' Henrie v. Henrie, 71 335, 80 S. E. 846. W. Va. 131, 76 S. E. 837. It is 803 The Decree § 618 § 617. The decree should adjust the rights of all the parties. As we have seen,^"" equity strives to make a finality of the contention of the parties. So, when equity can do complete justice between the parties, it will never turn them out of court to pursue their remedy in a court of law; but, having complete jurisdiction of the parties and subject matter, it will enter such final decree as will settle the rights of the parties, do complete justice between them, and close the controversy.^'" The decree should provide for the rights of all persons whose interests are immediately connected with the decision of the cause and af- fected by it.i" § 618. The decree in matters of account. A decree for an accounting is usually an interlocutory one, referring the cause to a master in chancery, under and in con- formity to which the master states the account. An order or decree directing an account should specify the commissioner who is to take the account/" the matters to which the account shall extend, and, in, decreeing a general account, the decree should give special directions rendered proper or necessary by the peculiar circumstances -of the ease.^'' "The decree usually directs that all the matters of account shall be adjusted down to the time of stating the accounts, although no facts are stated in respect to them in the pleadings."^'"' 109 Ante, § 607. § 602. But "it is not error to pro- 170 VV. Va. 0. & 0. L. Co. v. iiounee a decree in favor of a Vinal, 14 W. Va. 637; 5 Enc. PI. pendente lite purchaser who has and Pr., 958, 959, and notes; Smith not been made a party to the suit." V. White, 71 W. Va. 639, 641-642, Dudley \. Barrett, 6R W. Va. .'JfiS, 78 S. E. 378. 66 S. E, 507. 171 McPherson v. Parker, 30 Cal. 1-2 I'ost, § 662. 455, 89 Am. Dec. 129. As a general 1^3 1 Enc. PI. and Pr., 103. rule, nothing can be decreed for or ^''■1 Idem. against one who is not a party to For a, further consideration of the cause. Simnis v. Ramsey, 79 decrees in matters of account, see W. Va. 267, 278, 90 S. E. 842; ante, post, ch. 27, §§ 662, 663. §619 Equity Procedure 804 § 619. The decree in cases of alimony. Inasmuch as the claim for alimony is a mere personal one, the wife can have no lien on the specific property of the husband, in the absence of an agreement or statute providing therefor.^''® It is now provided by statute in the Virginias "^ that upon de- creeing the dissolution of a marriage, or upon decreeing a di- vorce, the court may make such further decree as it shall deem expedient, concerning the estate and maintenance of the parties or either of them. The broad terms of this statute and the dis- position of the courts to secure the welfare and comfort of the wife, certainly authorize a personal decree for the payment of a sum in gross as permanent alimony to be paid in instalments at certain intervals or in a lump sum, or a certain sun^jto be paid at certain specified times during the joint lives of the husband and wife, and the decree may charge the real estate of the hus- band with its payment.-'^' A decree or order for temporary all 176 Hogg, Eq. Pr., § 443, citing Almond v. Almond, 4 Rand. (Va.) 662; Purcell v. Purcell, 4 H. and M. (Va.) 507, 518. See also, Briglitman v. Brightman, 1 R. I. 112; Feigley v. Feigley, 7 Md. 562, 61 Am. Dec. 375; Powell v. Camp- bell, 20 Neb. 232, 2 L. R. A. 615, 20 Pac. 156, 19 Am. St. Rep. 350; Reynolds v. Reynolds, 68 W. Va. 15, 69 S. E. 381, Am. Ann. Cas. 1912A. 889; Sperry v. Sperry, 80 W. Va. 142, 92 S. E. 574; Lovegrove V. Lovegrove, 104 S. E. 804 (Va. 1920). 176 W. Va. Code, 1916, c. 64, § 11; Va. Code, 1904, § 2263. 1" Martin v. Martin, 33 W. Va. 695, 11 S. E. 12; Francis v. Fran- cis, 31 Gratt. (Va.) 283; Trimble V. Trimble, 97 Va. 217, 33 S. E. 531; Bailey v. Bailey, 21 Gratt. (Va.) 57; Miller v. Miller, 92 Va. 196, 23 S. E. 232; Julier v. Julier, 62 Ohio St. 90, 56 N. E. 661, 78 Am St. Rep. 697 ; Irwin v. Irwin, 21 Ky. Law. Rep. 622, 52 S. W. 927; Hooper v. Hooper, 102 Wis. 598, 78 N. W. 753, 44 L. R. A. 725; Anderson v. Anderson, 124 Cal. 48, 71 Am. St. Rep. 17, 56 Pac. 630; Owens V. Owens, 96 Va. 191, 31 S. E. 72; Sebabel v. .Schabel, 115 Micb. 487, 73 N. W. 553; Elzas v. Elzas, 171 111. 632, 49 N. E. 717; Gibbs v. Gibbs, 18 Kan. 419. Of course, a personal decree in awarding alimony, can only be en- tered as in any other case, when there has been such service of proc- ess or appearance to the cause, as the law provides. Ante, §§ 613, 614. ''Quaere: Can a court, in a divorce case, declare alimony a lien un specific land brought before the court in case the defendant is a non- resident, so that no personal decree can be had, under § 11, c. 64, Code of 1899 •"' Goff V. Goff, 60 W. Va. 0, 53 S. E. 769. "Permanent alimony decreed in a fixed annual sum, the defendant ap- 805 The Decree §619 mony may be entered in •^erm, or by the judge in, vacation, at any time pending the suit, to compel the man to pay any sum necessary for the maintenance of the woman, and to enable her to carry on the suit ; or to prevent him from imposfn'g any re straint on her personal liberty, or to provide for the custody and maintenance of the minor children of the parties during tit pendency of the suit ; or to preserve the estate of the man, so that it may be forthcoming to meet any decree which may be made in the suit, or to compel him to give security to abide such de- cree.^"' In order to enable the court to enter a decree ex parte for temporary alimony in any case, the suit must have aO- pearing in tlie case or served with process, is a personal decree and a lien on his land, though such ali- mony be payable in instalments in the future." Idem. "The words 'concerning the es- tate' of the parties, are evidently meant to give the court authority to protect each party in the pos- session and enjoyment of his or her respective estate, subject to such alimony as may be decreed, and not to authorize the transfer of the legal title to the land by way of alimony. It was said by Judge Brannon, in Gojf v. Ooff, supra, that this statute is very broad, sufficient, as in that ease, to justify the making of a money de- cree for alimony, a hen on the hus- band's land, and to enforce the same by a sale of the property. Farther than this we are not disposed by judicial interpretation to extend the statute." Miller, J., in Rey- nolds v. Reynolds, 68 W. Va. 15, 24, 69 S. E. 381, Am.. Ann. Cas. 1912A, 889'. Alimony may be decreed in lieu of dower and in suoh case limited to such time as the wife shall not remarry. Sperry v. Sperry, 80 W. Va. 142, 92 S. E. 574. But see Kittle V. Kittle, lOE S. E. 799 (W. Va. 1920). A wife may have a decree for alimony, or "maintenance," al- though no decree of divorce be en- tered in the case. She may have such decree in a suit instituted by her for that sole purpose, or she may \)ave it by way of cross-relief in a suit instituted by her husband in which he fails to establish grounds for a divorce. Lang v. Lang. 70 W. Va. 205, 73 S. E. 716; Huff V. Huff, 73 W. Va. 330, SO S. E. 846. "8W. Va. Code, 1916, c. 64, §9; Va. Code, 1904, §2261. But ali- mony pendente lite can be decreed only in a divorce suit. The mar- riage relationship must he in legal existence at the time of the suit. Hence, after a decree of divorce from bed and board, m a suit to set aside such decree for fraud, there can be no decree for alimony pendente lite. Chanman v. Parsons, 66 V\ Va. 307, 66 S. E. 461, 24 L. R. A. (N.S.) 1015, 135 Am. St. Rep. 1033. § 620 Equity Procedure 806 tually been instituted,"' or notice have been duly served upon the adverse party of the intended application to the court or judge to enter such decree.'*" In West Virginia, an order or decree may be entered in any pending cause in term, or by a judge in vacation of the court, to compel the man to deliver to the woman any of her separate estate which may be in his possession or control, or to prevent him from interfering with her separate estate.^^^ § 620. The decree in matters of attachment. In an attachment suit there can be no personal decree against the defendant where he has not been personally served with proc- ess, nor appeared to the aetion,^*^ but only a decree directing a sale of the property levied on by virtue of the attachment. ^^' If the decree recites that "the cause was heard upon the at- tachment duly levied upon" the property of the debtor, in an appellate court such attachment must be taken to have been in full force and effect, duly sued out and levied as required by statute."* It is provided by statute"'' that when the claim of the plain- tiff is established, decree shall be rendered for him, and the 179 Coger V. Coger, 48 W. Va. 135, will not excuse the payment of ali- 35 S. E. 823; Goff v. Goff, 54 W. niuny. Kittle v. Kittle, 102 S. E. Va. 364, 368, 46 S. B. 177. 7!)!) (W. Va. 1920). ISO Coger V. Coger, 48 W. Va. 135, isi w. Va. Code, 1916, c. 64, § 9. 35 S. E. 823; Keller v. Keller, 58 But this statute would not author- W. Va. 325, 52 S. E. 318. ize the court to enter any decree The amount of alimony to be de- wliich would interfere with or de- creed is a matter resting in the feat the vested rights of third par- sound discretion of the court. Opin- ties attaching to the property prior ion of the court in Coger v. Coger, to the institution of the suit. .Jen- supra See also, Hogg, Eq. Princp., nings v. Montague, 2 Gratt. (Va.) §§438-442; Henrie V. Henrie, 71 VV. 350; Bailey v. Bailey, 21 Gratt. Va. 131, 76 S. E. 837; [Lovegrove v. (Va.) 57. Lovegrove, 104 S. E. 804 (Va. 1920). 1S2 Taylor v. Cox, 32 W. Va. 148, The amount must be determined by 159, 9 S. E. 70; ante, § 613. the circumstances of each particular is^ See same citations, case Reynolds v. Reynolds, 68 W. 184 Taylor v. Cox, supra. Va. 15, 69 S. E. 381, Am. Ann. Cas. "6 W. Va. Code, 1913, c. 106, 1912A, 889. The fact that the wife § 20; Va. Code, 1904, § 2982. has separate property of her own 807 The Decree § 620 court shall order the sale of any personal or real estate which shall not have been previously replevied or sold, and shall direct the proceeds and whatever else is subject to the attach- ment, including what is embraced in any replevy or forthcoming bond which may have been given, to be applied in satisfaction of the decree. No real estate, however, shall be sold until all other property and money subject to the attachment have been exhausted, and then only so much may be sold as is necessary to pay the amount of the decree. And the statute ^^^ further pro- vides that, if the defendant against whom the claim is has not appeared or been served with a copy of the attachment sixty days before the decree, and provided the right of the defendant to appear and make defense to the suit has not expired by limitation or otherwise, the plaintiff is not entitled to a decree of sale of real estate unless and until he shall have given bond with sufficient security in such penalty as the court shall approve with condition to perform such future order as may be made by the court in the suit, in case the defendant appear and make defense therein within the time prescribed by law. There is a further provision of the statute that the court shall prescribe the terms of sale and the officer or person by whom the sale shall be made.^^' If the debt claimed by the attaching creditor is payable in instalments, the court should not direct a sale of the lands to satisfy more than the instalments already due, but should hold the attachment a lien on the subject for the instalments after- wards to fall due.^*^ If there be a garnishee, he should be a 180 w. Va. Code, 1913, e. 106, thereof, as to it shall seem just. § 22. If personal property be Idem. In Virginia the statute does levied upon and ordered to be sold, not permit the sale of eitlier real where there has been no appear- or personal property until such ance nor service of the attachment, bond has been given. Va. Code, and no bond has been given prior 1904, § 2983. to the levy of the attachment, the ist W. Va. Code, 1913, c. 106, court shall require such bond to be §21; 1 Bart., Ch. Pr. (2nd Ed.), given by the plaintiff; and if the 647. plaintiff, or some one for him, fail I's l Bart., Ch. Pr. (2nd Ed.), to give such bond within a reason- 647, citing Watts v. Kinney, 3 able time, the court shall dispose Leigh (Va.) 272. of such property, or the proceeds § 621 Equity Procedure 808 party to the suit."' Upon his failure to appear and answer the bill, "he may be brought in by attachment, or decree may be rendered against him on proof of indebtedness or the posses- sion of effects of the defendant.""" No decree can be entered against the garnishee until the liability of the principal defend- ant to the plaintiff is deereed.^'^ When it appears that the garnishee is liable to the debtor, a decree may be entered for the amount of such indebtedness, but not in an amount to exceed the decree against the principal debtor, together with its interest and costs.'-^^ A party selling under an order of sale must conform to its conditions and requirements.^^' Thus, an order that a sheriff sell personal property, and in case that prove insufficient to satisfy a judgment, then to sell real estate, but with a condition that the plaintiff is not to have the benefit of the order until he shall give bond, without evidence that the personal property was sold or was insufficient to satisfy the judgment, or that the bond was given, does not prove authority to the sheriff to sell the real estate or at all sustain such a sale.^'* § 621. The decree in the matter of the cancellation or refor- mation of contracts. The cancellation of contracts is in effect the rescission of the same,^'^ so that the terms are here used synonymously.^'^ 189 Hogg, Eq. Princp., § 42, citing against the garnishee, his decree many cases. On the subject of against the defendant will give garnislinient in equity, see Hogg, Eq. him no greater right against the Princp., pp. 71-75. garnishee than the defendant him- 180 1 Bart., Cli. Pr. (2nd Ed.), self lias. Tliere is only a "com- 648; 4 Minor, Inst., 581, 582; pulsory assignment of the debt." Drake, Attachment, §461. Crane v. Standard Lumber & Mfg. • It is also said that the bill may Co., 77 W. Va. 617, 87 S. E. 1018. be taken for confessed as to the ">s Houston v. McCluney, 8 W. garnishee. 1 Bart., Ch. Pr. (2nd Va. 135. Ed.), 621. 194 /dem. 191 Hogg, Eq. Princp., 75, citing i95 Black, Law Die, 103. 1 Drake, Attachment (6th Ed.), i90 See Hogg, Eq. Princp., §§45- §§ 460, 658a. See 1 Bart., Ch. Pr. 61, where the grounds upon which (2nd Ed.), 649. cancellation may be decreed are 192 Hogg, Eq. Princp., 74. Unless fully and distinctly considered by the plaintiff have a personal decree the author. 809 The Decree §621 The characteristic feature of a decree canceling or rescinding an instrument is the extent of its operation upon the instrument or contract with reference to which it affords relief.^'' That is, where an instrument, contract or agreement is rescinded, the decree must rescind it in toto}^^ There can not, as a rule, be a decree for the partial rescission of a contract or other instru- ment. ■'^^' The decree must place the parties in statu quo, and unless this can be done, there generally can be no decree for rescission or cancellation. ^'"' In a suit for the reformation of a contract or other written instrument, the court has a wide di.icre- tion, which it will exercise to accomplish for the parties those ends that woiuld have been reached had no mistake ever existed 197 Glassell v. Thomas, 3 Leigh (Va.) 113; Worthington v. Collins, 39 W. Va. 406, 19 S. E. 527. 198 See same citations; Manss- Bruning Shoe Co. v. Prince, 51 W. Va. 510, 41 S. E. 907; Bruner & McCoach V. Miller, 59 W. Va. 36, 52 S. E. 995; Ellison, Son & Co. V. Flat Top Grocery Co., 69 W. Va. 380, 71 S. E. 391, 38 L. R. A. (N. S.) 539; Dorr v. Midelburg, 65 W. Va. 778, 65 S. E. 97, 23 L. R. A. (N. S. ) ■ 987. But see Heater v Lloyd, 85 W. Va. 570, 102 S. E. 228. 199 Bailey v. James, 11 Gratt. (Va.) 468. However, there may b& a partial rescission when the con- tract is severable in its subject, as where a contract is executed for the sale of distinct parcels of land. Dorr V. Midelburg, 65 W. Va. 778, 65 S. E. 97, 23 L. R. A. (N.S.) 987. As to partially executed contracts, see Hoiderby v. Harvey C. Taylor Co., 104 S. E. 550 (W. Va. 1920). 200 Stanton v. Hughes, 97 N. C. 318, 1 S. E. 852; Worthington v, Collins, 39 W. Va. 406, 19 S. E. 527; Bruner & McCoach v. Miller, 59 W. Va. 36, 52 S. E. 995; Elli- son, Son & Co. v. Flat Top Grocery Co., 69 W. Va 380, 71 S. E. 39i, 38 L. R. A. (N.S.) 539; Bonsai v. Camp, 111 Va. 595, 69 S. E. 978;, Sweeney v. Foster, 112 Va. 499, 71 S. E. 548; Ratferty v. Heath, 115 Va. 195, 78 S. E. 641. See as to when decree may be made without restoring the status quo of the parties, Hogg, Eq. Princp., §60; Cheuvront v. Cheuvront, 54 W. Va. 171, 46 S. E. 233; .Jackson v. Counts, 106 Va. 7, 54 S. E. 870; Hoiderby v. Harvey C. Taylor Co., 104 S. E.'550 (W. Va. 1920). "A court of equity upon decree- ing the rescission or cancellation of a contract, for the purpose of placing the parties in statu quo, will provide in its decree that the plaintiff shall refund to the defend- ant any moneys that ths defendant may have paid under the contract, or that he shall, if a purchaser of land, restore the possession to the defendant, that the plaintiff shall restore such chattels' as he has re- ceived under the contract, that the plaintiff, if he has received a prom- issory note, shall deliver it up for cancellation, and that the plaintiff shall account for tlie not income of land of which he lias had possession under the contract." 18 Enc. PI. and Pr., 859, 860. But see Heater V. Lloyd, 85 W. Va. 570, 102 S. E. 228. § 622 Equity Procedure 810 in the same.^"^ Hence, the decree should be entered in such a was as to carry out the true intent of the parties and make the instrument express what it was mutually intended to express, or to put it in the form in which it was originally intended to be, so as to effectuate the real intention and purpose of the parties.^"^ When the court takes jurisdiction for the purpose of reforming an instrument or agreement, and does reform the same by proper decree, it does not stop ; but in a proper case, proceeds to afford the party complaining full relief by the enforcement of the instrument as reformed. ^"^ A decree may be entered in a suit for rescission or reformation to preserve the rights of the parties pending the question involved.^"^ § 622. The decree in the matter of the cancellation or refor- mation of contracts further considered — The removal of a cloud from title to real estate. As in other eases in equity, the relief afforded in the matter of the removal of a cloud from the title to real estate will always be adapted to the state of the pleadings and the circumstances and requirements of the particular case.^"^ The court, as ap- "The court in a suit for the Wadsworth Poor School v. Bryson, rescission or cancellation of a eon- 34 S. C. 401, 13 S. E. 619; Sulli- tract affords relief to the plaintiff van v. Latimer, 38 S. C. 417, 17 S. in various ways, according to the E. 221; Allen v. Elder, 76 Ga. 674, circumstances of the particular 2 Am. St. Eep. 63; Pulaski Iron case; e. g., the court may require Co. v. Palmer, 89 Va. 384, 16 S. E. that the contract, if in writing, 275; Kessel v. Kessel, 79 Wis. 289, shall he delivered up and cancelled, 48 N. W. 382. that the respective parties shall 2o,s Hutchinson v. Ainsworth, 73 execute to each other such deeds Cal. 4.')2, 15 Pac. 82, 2 Am. St. Eep. as may be necessary to do equity, 823: Franklin Ins. Co. v. McCrea, or under some circumstances the 4 G. Greene (Iowa) 229; McClurg court may direct a sale of the land v. Pliillips, 49 Jlo. 315: Gilbranson embraced in the contract." Idem, v. Squier, 5 Wash. 99, 31 Pac. 423. 860, 861. ="■' IS Knc. PI. and Pr., 886. 201 18 Enc. PI. and Pr., 863, cit- -<>'• Sharon v. Tucker, 144 U. S. ing Lestrade v. Earth, 19 Cal. 660; 533, 12 S. Ct. 720, 36 L. Ed. 532; Ladd v. Chaires, 5 l?la. 395; Cole- Stearns v. Harman, 80 Va. 48; man v. WooUey, 3 Dana (Ky. ) 486. Stonebunger v. Roller, 2 Va. Dec. 202Fi3hack v. Ball, 34 W. Va. 437, 25 S. E. 1012. 644, 12 S. E, 856; Trustees of 811 The Decree 622 pears from the adjudged cases, may adopt such form of a decree to afford the relief sought as it deems best under all the cir- cumstances.^'"' Hence, it may declare by its decree the true and actual state of the title, holding it to be absolutely existent in the plaintiff, the decree itself thus operating as a removal of all cloud from the title ;^'''' or, with like effect, the defendant's claim may be declared unfounded and invalid ; ^"^ or a deed or other instrument may be set aside as void and insufficient to create title or claim of title ;^'" and it may be found to create a cloud upon the title of the plaintiff's land, and for that reason canceled, ^^^ or the defendant may be directed or required to execute a release or conveyance in order to clear up the title of the plaintiff.^" And if an act be threatened which would 206 Yancey v. Hopkins, 1 Munf. (Va.) 419; Basket v. Moss, 115 N. C. 448, 20 S. E. 733, 48 L. R. A. 84'2, 44 Am. St. Eep. 463; Jackson V. Kittle, 34 W. Va. 207, 12 S. E. 484; Glenn v. Augusta Perpetual B. & L. Co., 99 Va. 695, 40 S. E. 25; Baker v. Briggs, 99 Va. 360, 38 S. E. 277; Smith v. O'Keefe, 43 W. Va. 172, 27 S. E. 353. 207 Davis V. Lennen, 125 Ind. 185, 24 N. E. 885; Gilbert v. McCreary, 104 S. E. 273 (W. Va. 1920). But in order that dismissal of a bill to quiet title may operate as an ad- judication of the plaintiff's title as based upon a deed of conveyance, the plaintiff's title under the deed must actually have been in issue. Taylor v. Hedriek, 110 Va. 461, 66 S. E. 65. 208 People V. Center, 66 Cal. 551, 5 Pac. 253; Windom v. Wolverton, 40 Minn. 439, 42 N. W. 296. 209 Simpson v. Edmiston, 23 W. Va. 675; Miller v. Cook, 135 111. 190, 25 N. E. 756, 10 L. R. A. 292 ; Jones v. Rountree, 96 Ga. 230, 23 S. E. 311; Pettit v. Sliepherd, 5 Paige Ch. (N". Y.) 493, 3 L. Ed. 801, 28 Am. Dec. 437; Tennant's Heirs v. Fretts, 67 W. Va. 569, 68 S. E. 387, 29 L. R. A. (N.S.) 625, 140 Am. St. Rep. 979. 210 De Camp v. Carnahan, 26 W. Va. 839; Carroll v. Brown, 28 Gratt. (Va.) 791; Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371; Jones v. Rountree, 96 Ga. 230, 23 S. E. 311; Pettit v. Shepherd, 5 Paige Ch. (N. Y.) 493, 3 L. Ed. 802, note, citing many cases. 211 Hale V. Penn's Heirs, 25 Gratt. (Va.) 261; Virginia Coal & Iron Co. V. Kelly, 93 Va. 339, 24 S. E. 1020; Yancey v. Hopkins, 1 Munf. (Va.) 419. Where a con- veyance is attacked as fraudulent, the decree may require a reconvey- ance of land in another state. Woodcock V. Barrick, 79 W. Va. 449, 91 S. E. 396. But see Ten- nant's Heirs v. Fretts, 67 W. Va. 569, 68 S. E. 387, 29 L. R. A. (N.S.) 625, 140 Am. St. Rep. 979, to tlie effect that a suit to remove cloud and quiet title is local in its nature and must be brought in the jurisdiction within which the land is situated. § ^523 Equity Procedure 812 cast a cloud upon the title to real estate, such act will be en- joined at the suit of the injured party."^ § 623. The decree in the matter of contribution. Contribution may be enforced among various parties,^^' but the usual instances of its enforcement are those of cosureties and legatees. In a suit by a surety against a cosurety, it ought to appear in the decree that the. principal is insolvent, or that due diligence has been used to realize payment from the princi- pal without avail; that judgment or decree has been rendered against such surety on the contract of suretyship ; ^^* or, if judgment or decree has not been rendered, that the principal is insolvent, or that the use of due diligence has failed to make the money from the principal ; and that the surety has paid the debt, orif not all of it, how much of it he has paid.^^^ The decree should adjust all the matters of equity existing between or among the eosureties,^''^ then ascertain the aliquot part, based upon the entire sum for which the solvent sureties must upon equitable principles ultimately be liable, that each surety ought to pay under all the circumstances of the case, and enter 212 Moore v. McNutt, 41 W. Va. (Va.) 484; Strother v. Mitchell, 695, 24 S. E. 682; Tucker v. 80 Va. 149. Kenniaton, 47 N. H. 267, 93 Am. 215 Hawker v. Moore, 40 W. Va. Dec. 425, and note; Miller v. Cook, 49, 20 S. E. 848; Hood v. Morgan, 135 HI. 190, 25 N. e. 756, 10 L. 47 W. Va. 817, 35 S. E. 911; Me- R. A. 292, and note in 10 L. R. A. Cormack v. Obannon, 3 Munf. (Va.) 293; South & W. Ry. Co. v. Va. & 484; Linn v. McClelland, 4 Dev. S. Ry. Co., 104 Va. 323, 51 S. E. and B. (N. C.) 458. 843; Iguano Land & Mining Co. v. si" Boughner v. Hall, 24 W. Va. Jones, 65 W. Va. 59, 64 S. E. 640; 249; Neely v. Bee, 32 W. Va. 519, Bradley v. Swope, 77 W. Va. 113, 9 S. E.. 898; Proudfoot v. Clevenger, 114, 87 S. E. 86, and cases cited. 33 W. Va. 267, 10 S. E. 394; 213 Hogg, Eq. Princp., §§63-71. Hawker v. Moore, 40 W. Va. 49, 214 )W. Va. Code, 1913, 0. 101, 20 S. E. 848; First Nat. Bank v. §5; Mattingly V. Sutton, 19 W. Va. Parsons, 42 W. Va. 137, 24 S. E. 19; Maxwell v. Miller, 38 W. Va. 554; Jones v. Bradford, 25 Ind. 261 18 S. E. 449; Hood v. Morgan, 305; Tarr v. Ravenscroft, 12 Gratt. 47 W. Va. 817, 35 S. E. 911; (Va.) 142. McCormack v. Obannon, 3 Munf. 813 The Decree § 624 a decree in favor of the plaintiff for such aliquot part.^^^ But a decree of contribution can be entered in a cause, so as to settle and adjust the entire matter of contribution, only when the nature of the case and the state of the pleadings authorize it.^^* Thus, in a suit to subject the land of a judgment debtor to judgments against him, which are numerous and in favor of different persons, the fact that in one of the debts he is a surety with other solvent sureties of an insolvent principal does not require that the lands of the solvent cosureties be brought into the case and subjected to payment of a portion of that debt, though those cosureties are parties by reason of the right to contribution, nor require a decree of contribution therein.^^' Where legatees are called on to contribute to the payment of a debt because of a deficiency in the assets of the estate of the decedent, the decree should provide that each pay in accordance with the amount of the legacy received ; ^^^ and if some of the legatees are insolvent, the others will be required to make up the deficit to the extent of what they have received in the same manner.^^^ And in decreeing the share of a posthumous child, unprovided for by will or otherwise, each legatee and devisee and those claiming under them will be required to contribute in proportion to the amounts respectively received by them.^^^ § 624. The decree in the matter of corporations. In a suit to wind up the affairs of a corporation, brought by not less than one-fifth in interest of its stockholders, by virtue of statute in West Virginia, the court may decree a dissolution of the corporation, and make such orders and decrees, and 21' Hawker v. Moore, 40 W. Va. 218 Farmers' Bank v. Woodford, 49, 20 S. E. 848; Preston v. Prea- 34 W. Va. 480, 12 S. E. 544. ton, 4 Gratt. (Va.) 88; Eosenbaum 219 /iem. V. Goodman, 78 Va. 121; Samuel 22oXeake v. Leake, 75 Va. 792. V. Zachery, 4 Ired. (N. C.) L. 377; 221 Idem. Davis V. Emerson, 17 Me. 64; Tarr 222 Armistead v. Dangerfield, 3 V. Ravenscroft, 12 Gratt. (Va.) Munf. (Va.) 20. 142; Robertson v. Trigg, 32 Gratt. (Va.) 76. § 625 Equity Procedure 814 award such injunctions in the cause as justice and equity may require.^^' But no decree can be rendered in such a case, even where a majority in interest of the stockholders are plaintiffs desiring to wind up its affairs, unless sufficient cause be shown therefor.224 When a suit is brought under Ch. 53, sec. 59, of the Code of "West Virginia, by a creditor to assert a debt against an expired corporation, wind up its affairs and administer its property for the benefit of its creditors, and a debt is decreed against such corporation and its property subjected to the pay- ment thereof, the decree must ascertain all the debts against the corporation, and ascertain and declare the shares or interests of the stockholders in the corporation and in the surplus pro- ceeds of the property decreed to be sold.^^^ § 625. The decree in the matter of creditors' suits. Creditors' suits assume so many phases that the character and form of the decree can not be generally given, as these de- pend almost entirely upon the nature of the case. Thus, we have suits to administer the assets of the estate of a decedent,^^^ to enforce judgment and certain other liens,^^' to set aside fraudulent conveyances, and conveyances by insolvent debtors attempting to create preferences among creditors.^^^ The dif- 223 w. Va. Code, 1016, e. 53, 22s Idem. In Virginia a debtor § 57 ; Hurst v. Coe, 30 W. Va. 158, may convey his whole property for 3 S. E. 564; Weigand v. Alliance the payment of hia debts, creating Supply Co., 44 W. Va. 133, 28 S. preferences among certain of his E. 803. creditors, and require releases from 224 See same citations, Rainey v. such as accept the benefit of the Freeport Smokeless C. & C. Co., 58 trust. 1 Bart., Ch. Pr. (2nd Ed.) TC. Va. 424, 52 S. E. 528; Ward v. 568, 56!). Hotel Randolph Co., 65 W. Va. 721, There is a further classification 63 S. E. 613; Radford West End of such suits into those by creditors Land Co. v. Cowan, 101 Va. 632, of corporations, and those to subject 44 S. E. 753. property not reachable by execu- 22r, Stiles v. Laurel Fork Oil & tion. 5 Ene, PL and Pr., 388, 393, Coal Co., 47 W. Va. 838, 35 S. E. 395. 986. Tlie term "general creditors' suit" 220 Hogg, Eq. Princp., §450. is frequently applied in the deci- 227 Idem. sions to suits brought for the pur- 815 The Deckee §626 ferent classes here mentioned will be treated separately, in dis- tinct sections. §626. The decree in the matter of creditors' suits — Further considered — The enforcement of judgment liens. The class of creditors' suits most frequently occurring in prac- tice are those brought to enforce judgment liens, and may not inaptly be called "lien creditors' suits." In a creditors' suit to enforce .iu,dgment liens against the real estate of the debtor, it is generally necessary, and always safe, to refer the cause to a commissioner in chancery, to take an account of the liens against the property and report to the court their character, amounts, and respective priorities.^"' The order or decree referring the cause is interlocutory.^^" In Virginia, the rule is a stringent and unbending one, settled by a long array of decisions, requiring the liens and their priorities to be ascertained by a commissioner in chancery before decreeing the sale of real estate to satisfy a lien or liens existing thereon in any case, and whether such liens be judgment liens or not — ^^^ pose of enforcing judgment liens. However, "lien creditors' suit" is the more appropriate term, as only lien creditors may have relief in the suit. Tlie term "general credi- tor's suit" is more applicahle to a suit to subject the estate of a de- cedent to the payment of liis debts, as in the latter suit both lien credi- tors and common creditors are proper parties. 2-'9 Scott V. Ludington, 14 W. Va. 388; Ihitton ^■. Locl ; W. Va. Code, lOlG, c. 64, § 14. But in West Virginia, the parties may remarry with each other at any time. Idem. 284 Ante, § 425. 29BHull v. Hull, 26 W. Va. 1; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291. See ante, § 425, and 829 The Decree §633 Indeed, no decree should be rendered against an infant until a proper guardian ad litem has been appointed and has filed his answer.^'" But an infant is as much bound by a decree when properly entered as an adult, and he can avoid it only by show- ing such error, fraud or surprise, at the time of its rendition, aa would reverse or set it aside at the instance of an adult.^" cases cited, for a full discussion of the necessity of an answer by a guardian ad litem and the effect of failure so to answer. 206 See same citations. 297|Lafferty v. Lafferty, 42 W. Va. 783, 26 S. E. 262; Harrison V. Wallton, 95 Va. 721, 30 S. E. 372, 64 Am. St. Eep. 830; Zirkle V. McCue, 26 Gratt. (Va.) 517; Pennybacker v. Switzer, 75 Va. 671; Ammons v. Ammons, 50 W. Va. 390, 400, 40 S. E. 490; White v. White, 66 W. Va. 79, 85, 66 S. E. 2, 24 L. R. A. (X.S.) 1279, 135 Am. St. Eep. 1013; Poling v. Poling, 61 W. Va. 78. 55 S. E. 993; MoComb V. Gilkeson, 110 Va. 406, 66 S. E. 77, 135 Am. St. Rep. 944; Eakin v. Eakin, 83 W. Va. 512, 98 S. E. 608. Brannon, J., in the course of a well-considered opinion delivered in Laflferty v. Laflerty, supra, says: "Any decree which in any way prej- udices an infant, as it would an adult, may be attacked by an in- fant within six months after major- ity, under the right to show cause against it given by section 7, chap- ter 132, Code 1891. Btit an infant can not annul a decree without cause, simply because of infancy, as the statute demands that he show cause. An infant is as much bound by a decree as an adult. It is just as final and conclusive as to mat- ters properly adjudged, only that he is saved the right, without re- gard to limitation barring infants, until six months after majority, without going to an appellate court, to show cause to the same court which rendered the decree why it ought to set it aside. That cause must be just what would re- lieve an adult from it — error in the record, fraud, or surprise. JTull V. Bull's Heirs, 26 W. Va. 1 ; Bar- ton, Ch. Prac, 130; 10 Am. & Eng. Enc. Law, 694; Pierce's Admr. v. Trigg's Heirs, 10 Leigh 429; Par- ker V. McCoy, 10 Gratt. 604; Zir- kle V. McCue, 26 Gratt. 517. The infant, if his cause against a decree be error of law in the case, may pro- ceed by bill of review, or supple- mental bill in the nature of a bill of review, showing error of law; and in such bill of review I do not think the infant would be confined to merely such matters, to show error, as appear on the face of the decree, as in ordinary cases; and he need not have leave of court to file it, as in ordinary cases of bill of review. In re Hoghton, L. R. 18 Eq. 573. He may proceed by original bill, for not only fraud, but for error of law. He may pro- ceed by petition, which is but an- other name for a bill. He may in- troduce new matter against It, so it existed at the date of decree. He is given the broad right to show cause against it, and under any §635 Equity PaocEDrKE 830 § 634. The decree in the matter of injunctions. A decree with reference to an injunction is either to dis- solve,^''* modify,^^' or perpetuate it.'"" For a further considera- tion of injunctions and decrees in relation thereto see another part of this work.'" ^ § 635. The decree in the matter of interest. In West Virginia, it is provided by statute that, when a judg- ment or decree is rendered for the payment of money, it shall he for the aggregate of the principal and interest due at the date of the judgment or decree j^"^ but in Yirginia the interest is cal- culated on the principal sum from the time of the accrual of the interest thereon until the principal is paid, and the decree should so provide ; ^"^ that is, the decree is rendered for interest on the principal sum until the payment of the decree or judg- ment.^"^ In contracts for the payment of money, the interest of these pleadings he is given re- lief coextensive with the right. There seems to be great liberality in this matter of procedure. 1 Daniell, Ch. Prac, 164; 2 Beach, Mod. Eq. Pr., § 883 ; Loyd v. Ma- lone (111.), 74 Am. Dec. 179; Kings- hury V. Buckncr, 134 U. S. 650 (10 Sup. Ct. 638) ; Ewing v. Winters, 39 W. Va. 490 (20 S, E. 572)." 298 High, Inj., §§ 1001-1019. 209 Grobe v. Eoup, 44 W. Va. 197, 28 S. E. 699. soo High, Inj., § 3. Ml Post, §§729, 748, 750. 302 W. Va. Code, 1913, e. 131, §16; Fleming v. Holt, 12 W. Va. 143; Euflner v. Hewitt, 14 W. Va. 737 ; Bank v. Good, 21 W. Va. 455 ; Cranmer v. McSwords, 26 W. Va. 412. The interest and principal must be aggregated at the date of the decree, and not prior thereto. Lamb V. Cecil, 25 W. Va. 288; Triplett v. Lake, 43 W. Va. 428, 27 S. E. 363; Gooch v. Gooch, 70 W. Va. 38, 73 S. E. 56. It is error to aggregate in a decree instalments of a debt not due at the date of the decree, so a.i to make such aggregate bear interest as a whole from such date. Ware v. Hewitt, 63 W. Va. 47, 59 S. E. 756. 303 2 Bart., Ch. Pr. {2nd Ed.), 815; Enders v. Board of Public Works, 1 Graft. (Va.) 364; Kent V. Kent, 28 Graft. (Va.) 840; Roberts v. Cocke, 28 Graft. (Va.) 207; McVeigh v. Howard, 87 Va. 599, 13 S. E. 31; Graeme v. CuUen, 23 Graft. (Va.) 266: White v. Freeman, 79 Va. 597. s^Va. Code, 1904, §3301; Cecil V. Hicks, 29 Graft. (Va.) 1, 26 Am. Rep. 391. See authorities last above cited; also Spoor v. Tilson, 97 Va. 279, 33 S. E. 609. In Spoor V. Tilson, Keith, P., in the course of his opinion, says: "A decree for money should stale 831 Thk Decree §636 on the principal sum is a legal incident of the debt and a part of the contract,'"^ so that the decree must bear the same rate of interest as the contract itself, if such rate is legal, whether fixed by the contract itself or by the laws of the place where the contract is made.'"* Thus, when a bond by its terms bears interest at the rate of three per cent, per annum from date, the decree should carry the same rate of interest.'"^ So, where a contract stipulates for interest at the rate of eight per cejit. from its date until paid, such rate being authorized by the law of the place where it is made, the decree should provide that the interest be paid at the same rate.^"^ § 636. The decree in the matter of interest further considered — Compound interest. , It is a general principle or rule of law that interest on in- terest will not be allowed, unless the ease be controlled by a valid agreement or contract between the parties,''"'^ or by some particular provision of the law.'-"^" Thus, an agreement to pay interest on interest is valid, if made after the interest which is the amount wliicli tlie defendant is required to pay, and tlie date from which interest is to be computed, and it is not sufficient to direct that the plaintiffs recover 'the amounts of tlicir respective notes and judgments, witli interest there- on, as separately and specifically set out in the bill.' " 305 Shipman v. Bailey, 20 W. Va. 140. See Bennett v. Federal Coal & C. Co., 70 W. Va. 456, 74 S. E. 418. 30* Shipman v. Bailey, 20 W. Va. 140; Barbour v. Tompkins, 31 W. Va. 410, 7 S. E. 1; Strayer v. Long, 83 Va. 715, 3 S. E. 372; Morris v. Baird, 72 W. Va. 1, 78 S. E. 371, Ann. Cas. 1915A, 1273. 307 Pickens v. McCoy, 24 W. Va. 344. See Morris v. Baird, 72 W. Va. 1, 78 S. R. 371, Ann. Cas. ini5A, 1273. 30S Shipman v. Bailey, 20 W. Va. 140. For consideration of the laws of interest generally, see Hogg, Kq. Princp., §§ 115, 115a, 153, 41'^, 422, 423, 426, 428, 624. 309 Craig v. McCuIloch, 20 W. Va. 148; Stansbury v. Stansbury, 24 W. Va. 634; Barbour v. Tomp- kins, 31 W. Va. 410, 7 S. E. 1; Pindall v. Bank, 10 Leigh (Va.) 481 ; Childers v. Deane, 4 Rand. (Va.) 406; Waldron v. Pigeon Coal Co., 61 W. Va. 280, 56 S. E. 492. See note in 18 L. R. A. (X.S.) 633. 3"Va. Code, 1904, §§2606, 2607; W. Va. Code, 1913, c. 82, §§ 10, 11: idem, c. 131, § 16; idem, e. 133, §23; Evans v. Rice, 06 Va. 30, 3(1 S. E. 463. § 637 Equity Procedure 832 to bear interest has become due and payable.''^ So, in the Virginias, it is provided by statute that, as expressed by Mr. Barton, "a guardian, or other person acting as such, shall be charged with interest on any balance at the end of any year which ought to be invested or loaned out within a reasonable time, and that interest shall be charged on such balances, and so on toties quoiies during the continuance of the trust ; and guardians have authority to make loans bearing compound inter- est." ^^^ And in West Virginia, when suit is brought to enforce a judgment or decree rendered in another and distinct suit, there may be an aggregation of the principal, interest and costs re- covered in the first action or suit, because these constitute the debt sought to be enforced in the second suit thus brought.^^' But independently of express statute, compound interest can not be allowed on a sum of money decreed to be paid in an^ case.'^'' Thus, where a decree is entered in a cause ascertaining and fixing the aggregate amount of the plaintiff's debt and giving interest on such aggregate from the date of the decree,'''^ it is error in a subsequent decree entered in the same cause several years thereafter to reaggregate such debt by calculating interest on said first aggregate sum to the date of the latter decree, then adding this interest to the sum of the first decree and giving interest on the second aggregate from the date of the last decree.^" § 637. The decree in the matter of joint defendants. If the suit be found upon a joint demand based upon con- tract and any one of the defendants successfully defends the sii See citations in note 300, 24 W. Va. 722, 727 ; Fleming v. supra. Holt, 12 W. Va. 144; Bank v. 312 2 Bart., CIi. Pr. (2nd Ed.), Good, 21 W. Va. 455. • 735; Hogg, Eq. Princp., §§135, ■■•14 Tiernan \. Mingliini, 2S W. 220; Va. Code, 1004, §§260R, 2607; Va. .323; White v. Freeman, 70 Va. W. Va. Code, 1013, ,-. 82, §§ 10, 11; ,'"107. See additional ca.'^os cited in Kester v. Hill, -10 W. Va. 744, 34 note 300, mipra. S. E. 708. '■"■■ A^ iirescribed by tlie West ■■'13 Tiernan v. Mingliini, 28 W. Virginia statute. Code, e. 131, §10. Va. at p. 323, in the opinion of the ■■'"■Tiernan v. "Minghini, 2.S W. court, citing Douglass v. McCoy, \'ii. 314. 833 The Decree §637 suit on a ground common to all of the defendants which goes to the very cause of action itself, such defense inures to the benefit of all, notwithstanding the bill may have been taken for confessed as to those not defending, or they may even have confessed their liability.^" According to this principle, a party can not recover on a joint demand in equity, when it appears that all of the defendants are not liable, any more than he can do so on a like demand in an action at law.^^^ But this rule does not apply where the defense is personal to one or more of the defendants, such as infancy, bankruptcy, and the like ; ^^^ and in such a case, the defendant or defendants relying on such personal defense may be discharged from any liability upon the plaintiff's demand, and the plaintiff obtain a decree against the other defendants.'^" So, by virtue of statute, if suit 317 2 Bart., Ch. Pr. (2nd Ed.), 836, citing Minor's Institutes, Vol. 4, Pt. 2, p. 1206, which cites 5 Rob., Prac, 2.55; C'artigne v. Ray- mond, 4 Leigh (Va.) 579; Brown V. Johnson, 13 Gratt. (Va.) 644; Steptoe V. Read, 19 Gratt. (Va.) 10, 11; Findley v. Cunningham, 53 W. Va. 1, 44 "S. E. 472; Holderby V. Hagan, 57 W. Va. 341, 346, 50 5. E. 437; Johnson v. Ludwick, 58 W. Va. 404, 52 S. E. 489. sisAshby v. Bell, SO Va. 811; 2 Bart, Ch. Pr. (2nd Ed.), 836; Snyder v. Snyder, 9 W. Va. 415; FindU'y v. Smith, 42 W. Va. 299, 26 S. E. 370; Findley v. Cunning- ham, 53 W. Va. 1, 44 S. E. 472; Johnson v. Ludwick, 58 W. Va. 404, 52 S. E. 489. But tlie interests of the defendants must be joint or there must be privity between them. Ferrell v. Camden, 57 W. Va. 401, 50 S. E. 733; ITudkins v. Crim, 64 W. Va. 225, 01 S. E. 160. Hence, an answer by an administrator re- sistuig specific performance of a contract alleged to liavc been exe- cuted by his decedent will not in' ure to the benefit of the heirs, Ferrell v. Camden, supra. 3i» Gibson v. Beveridge, 90 Va, 607, 19 S. E. 785; Steptoe v. Read, 19 Gratt. (Va.) 1; Moffett v. Bickle, 21 Gratt. (Va.) 280. 3-0 See same citations; Muse v. Farmers' Bank, 27 Gratt. (Va.) 2.-)2; Busli v. Campbell, 26 Gratt, (Va.) 403; Snyder v. Snyder, 9 W. Va. 415; Ferrell v. Camden, 57 W. Va. 401, 50 S. E. 733. It is held in A'irginia that, by virtue of Va. Code, 1904, § 33!)3 (see W. Va. Code, 1013, c. 131, §19), a judgment may be taken against part of the defendants, al- though the rest are discharged on a plea of noii est factum. Bush v. Campbell, 26 Gratt (Va.) 403; Mclntyrc v. Smyth, 108 Va. 736, 62 S. E. 930. As to the true meaning of this statute. Lacy, J., in Bea/ley v. Sims. 81 Va., at ]). 647, says: "As to the nineteenth section of chapter one liundred and seventy-three, §637 Equity Procedure 834 be brought on a joint liability and one or more of the defendants be beyond the jurisdiction of the court, so that he can not be per- sonally served with process, and the return on the process show the defendant to be a nonresident, the suit shall abate as to him and the plaintiff may proceed to judgment or decree as to the rest of the defendants.'^^ So, further by virtue of statute, where, in an action or suit against two or more defendants, the process is served upon part of them, the plaintiff may proceed to judgment as to any so served, and either discontinue the cause as to the others or take judgment against them from time to time as the process is served upon them.^^^ In keeping with the principle here considered, where the contract is several, a which provides for judgment against one defendant against wliom the plaintiff is not barred, altliougli he may be barred as to another, we will say that in a joint action against several joint contractors, when all have been served with proc- ess and all are before the court, and the fiftieth section of chapter 167 is inapplicable, the plaintiff must recover against all or none as at the common law, unless the de- fense upon which some are dis- charged is merely personal to them that plead it, and does not touch the liability of the other defendants; as, for example, the plea of infancy, bankruptcy, Jion est factum, noii assumpsit, and the like, which will not prevent the action from being proceeded in to judgment against the others so as to recover against them only." The Court of Appeals of West Virginia does not put so broad a. construction on this statute. Hoff- man v. Eircher, 22 W. Ya. 537; Enos, Hill & Co. v. Stansbury, 18 W. Va. 477; Choen v. Guthrie, 15 W. Va. 100; State ex rel. Kloak Bros. & Co. V. Corvin, 51 W. Va. 19, 27-28, 41 S. E. 211; Scott v. Newell, 69 W. Va. 118, 122, 70 S. E. 1092. 3=1 Brown v. Belches, 1 Wash. (Va.) 9; Steele v. Harkness, 9 W. Va. 13; Chapman v. Maitland, 22 W. Va. 329; M. & M. Bank v. Evans, W. Va. 373; Carlon v. EutTner, 12 W. Va. 297; Courson v. Parker, 39 W. Va. 521, 524, 21 S. E. 583. 3=2 W. Va. Code, 1913, c. 125, §iJ2; Va. Code, 1904, §3396; Snyder v. Snyder, 9 W. Va. 415; Muse V. Farmers' Bank, 27 Gratt. (Va.) 2,-)2. As to the statute referred to in the text. Lacy, J., in Beazley v. Sims, 81 Va. at p. 647, says: "The said fiftieth section provides, as we have seen, for final judgment as to one, and a discontinuance as to the other, or further proceedings as to him, in that suit, at the election of the plaintiff; and this change in the law we have stated above." But this statute does not en- tirely do away with the common- law distinction between joint and 835 The Decree § 638 several decree against the various defendants must Tie rendered, and to enter a joint decree in such a case is error.'^' But a joint decre(i against two or more defendants is proper when they are properly charged with the plaintiff's claim.'^^ Thus in a suit against a guardian and his sureties by a ward, a joint decree may at once be n^ndered against them on their official bond without exhausting the guardian before going on his sureties.'^^ If a defendant is jointly interested with other defendants, and all are made parties to the sUit, all should be served with process, or a proper excuse given for not doing so, as no proper joint judgment or decree can be rendered unless all are properly served with process, or appear to the cause.'^" § 638. The decree in the matter of liens. In addition to what has already been said as to the enforce- ment of liens,'^^ it is settled in West Virginia that in a suit to enforce a vendor's lien it is not, as a rule, necessary to refer the cause to a commissioner to ascertain and report the liens and Iheir priorities existing upon the real estate. ^^^ Aside from this, the decree should conform to 'that entered in a suit to en- force a judgment lien.'^' The usual form of the decree in a several contracts. It does not W. Va. 272, 9 S. E. 21. But see authorize separate suits against Payne v. Webb, 23 W. Va. 558; ... . . A J. J. McClaugherty v. Croft, 43 W. Va. joint contractors. Armentrout v. g-^ 27% E 24fi ■ . » o.- Smith Bros, et ah, .52 W. Va. 00, 329 Ante, § 628. It is not neces- 43 S. E. 98; S. C, 56 W. Va. 356, sary to ascertain the rental value 40 S. E. 377. °^ *^^ land. Ante, § 627. If sepa- ^..•! t:'ii-„„ „ T>„,i, o wT \T^ /loT ""ate parcels of the land have since ^^^ Ellison V. Peck, 2 W. Va. 487. ^^^^ "alienated by the vendee, the 324 narnos ■/. Trafton, 80 Va. 524, gale of the parcels should be de- 535. creed in the inverse order of the 32r. Idem. alienation, if it be practicable to do ,.,n i:'- 11 c!~-4.i, Ao 117 ■t7„ so. Clark v. Harpers Ferry Timber .■i-'o F.ndley v. Smith, 42 Vi . Va. ^o., 70 W. Va. 312, 315, 73 S. E. 290, 26 S. E. 370. See ante, §602 919; Morris v. Baird, 72 W. Va. 1, and cases cited. 78 S. E. 371, Ann. Cas. 1915A, 1273. 3-'7,4«^ Tate, 1 H. & M. (Va.) 9; Slater S. E. 449. As to right of a party v. Arnett, 81 Va. 432; Tillar v. to have his portion assigned so as Cook, 77 Va. 477. to be contiguous to land owned by "In a suit in equity for an ac- him in severalty, see Carper v. count, brought by one partner Chenoweth, 69 W. Va. 729, 72 S. R. against the otlier after the termina- 1031. tion of the partnersliip, both part- 3''3 15 Enc. PI. and Pr., 812 and ners, defendant as well as plaintiff, note 2. are regarded as actors, and the ac- 354 Cox V. McMullin, 14 Gratt. counts must be stated by the com- (Va.) 82; Dennis v. Dennis, 116 missioner, and the rights of the Va. 619, 82 S. E. 696; Lucy v. Kel- several partners must be finally ]y, 117 Va. 318, 84 S. E. 661. But passed on by the court as if each see Jackson v. Jackson, 110 Va. 393, partner were a plaintiff filing a bill 66 S. E. 721. See Roberts v. Hagan, against his copartner.'' Hvre v. 121 Va. 573, 93 S. E. 619. Lambert, 37 W. Va. 26, le' S. E, 355 Hogg, Eq. Princp., §373; Cre- 440 447 sap v. Brown, 69 W. Va. 658, 72 S. ' „ . „ _ E 751 ' ^i>i, 8 0/1. 'sssFarwell v. Huling, 132 111. '"' ^'^ J'^™' P'- -^"d ^^■■> "05, cit- 112, 23 N. E. 438; Robertson v. "ig Gnggs v. Clark, 23 Cal. 427; Baker, 11 Fla. 192; Beale v. Beale, Fulmore v. McGeorge, 91 Cal. 6U, 843 The Decree § 644 The decree should provide for the application of the partnership assets in the following order: "first, in payment of the debts and liabilities of the firm to persons who are not partners; second, in payment to each partner ratably what is due from the firm to him for advances, as distinguished from capital; third, in payment to each partner ratably of what is due from the firm to him in respect of capital ; fourth, the ultimate residue^ if any, is divisible among the partners in the proportion in which profits are divisible under the partnership contract."'^' A final decree can not be rendered against one partner in a suit between partners for a definite sum of money where it appears that there are firm debts still outstanding and unpaid, since the partnership decreed against will still be liable to the unpaid partnership creditors.'^" § 644. The decree in the matter of principal and surety. In a suit in equity when the principal and his sureties are before the court, and a sale of their real estate is necessary to satisfy the judgment or demand against them, the court will respect the equities of the parties inter sese,^^^ and administer them upon principles peculiar to its forum, when that can be done without too great delay and without prejudice to the 28 Pac. 92; McCall v. Moss, 112 man, 50 W. Va. 270, 40 S. E. 578; 111. 493; Randolph v. Inman, 172 Gathright v. Fulton, 122 Va. 17, 111. 575, 50 N. E. 104; Curry v. 94 S. E. 191. The property will Allen, 55 Iowa 318, 7 N. W. 635; always be sold, not divided in kind. McGillvray v. Moser, 43 Kan. 219, Idem. 23 Pac. 96 ; Story v. Moon, 3 Dana soo gee same citations ; Burdett v. (Ky.) 334; Grove v. Fresh, 9 Gill Greer, 63 W. Va. 515, 60 S. E. 497, &, J. (Md.) 280; Filbrun v. Ivers, 15 L. R. A. (N.S.) 1019, 129 Am. 92 Mo. 388, 4 S. W. 674; Tesche- St. Rep. 1014; Steele v. Moore, 71 macher v. Lenz, 82 Hun. (N. Y.) W. Va. 436, 76 S. E. 850; Lantz \. 594, 31 N. Y. S. 543, 64 N. Y. St. Tumlin, 74 W. Va. 196, 81 S. E. Rep. 178; Hayes v. Reese, 34 Barb. 820; Jones v. Rose, 81 W. Va. 177, (K Y.) 151; Cliilders v. Neelv, 47 94 S. E. 41. See Dilcher v. Dilcher, W. Va. 70, 34 S. E. 828, 49 L. R. A. 83 W. Va. 135, 97 S. E. 579. dfia «i Am <:;+ tj„,, 777 361 Horton v. Bond, 28 Gratt. 468, 81 Am. St. Rep. 777. ^^^ , gj,. pj^^^. -^^^ 3^^^ ^ p^^ 359 Hyre v. Lambert. 37 W. Va. sons, 42 W. Va. 137, 24 S. E. 554. 26, 16 S. E. 446; Koel/. v. Brink- § 644 . Equity Procedure 844 rights of the creditor.'*^ In consonance therewith, ordinarily the lands of the principal debtor should be first subjected to the payment of the demand in exoneration of the lands of the sure- ties and the decree should so provide.'^' After the lands of the principal debtor are sold and applied pro ianto to the satis- faction of the judgment or other demand, the portion of the judgment which each surety should pay ought to be ascertained and a separate decree rendered against each surety for his por- tion thereof, and the decree should provide for the sale of his real estate upon his failure to pay the same.^^^ If either of the sureties should fail to pay the decree against him, and his land when sold does not satisfy the decree, the amount of the deficiency should be apportioned among the other sureties, and there should be a like decree against each of them and his land for his portion of such deficiency ; and so on, until the judgment is satisfied, or all the lands of all the sureties are sold.'^^ But in a suit against principal and surety, the decree need not be entered against the principal in the first instance and the remedy against him exhausted, if it appear from the record that the principal is insolvent.'^* 3«2 See same citations ; Bell v. ville Crystal Ice & Dairy Co. v. McConkey, 82 Va. 176; Edmunds v. Frick Co., 96 Va. 141, 30 S. E. 491. Scott, 78 Va. 720; Wilson v. Car- 364 Horton v. Bond, 28 Gratt. rico, 50 W. Va. 336, 40 S. E. 439; (Va.) 815; Eedd v. Eamey, 31 Alderaon v. Alderson, 53 W. Va. Gratt. (Va.) 265; National Bank v. 388, 44 S. E. 313; Carr v. Davis, Bates, 20 W. Va. 210, 222; Wythe- 64 W. Va. 522, 63 S. E. 326, 20 L. ville Crystal Ice & Dairy Co. v. E. A. (N.S.) 58. "This is to do Frick Co., 06 Va. 141, 30 S. E. 491. complete justice and prevent cir- sos Horton v. Bond, 28 Gratt. cuity of action and multiplicity of (Va.) 815; National Bank v. Bates, suits." Post V. W. H. Bailey & Co., 20 W. Va. 210; Wytheville Crystal 68 W. Va. 434, 437, 438, 69 S. E. Ice & Dairy Co. v. Frick Co., 96 910. Va. 141, 30 S. E. 491. 303 See same citations ; Muse v. 366 Jones v. Degge, 84 Va. 690, 5 Friedenwald, 77 Va. 57; Updike v. S. E. 599. In this case the court Lane, 78 Va. at p. 137; Stoveall v. in its opinion says: "It is contend- Border Grange Bank, 78 Va. 188; ed that as the wife signed the note Womack v. Paxton, 84 Va. 24, 5 S. as surety for her husband, it vras E. 550; Armstrong v. Poole, 30 W. error to subject her estate before Va. 666, 671, 5 S. E. 257; Wythe- exhausting the property of the prin- 845 The Decree §645 § 645. The decree in the matter of the specific performance of contracts. If relief be granted in a suit for specific performance, the decree should provide that the entire contract as made by the parties should be carried out.'^' The decree should be adapted to the circumstances of each ease,^^^ and adjudicate and settle all the matters properly arising between the parties to the cause, even to the extent of establishing their legal rights.'^' Thus, where equity has jurisdiction to enforce an agreement to insure, on a bill for that purpose, it will compel the execution of a policy of insurance and, if a loss has occurred, will decree its payment.'^" So, upon decreeing specific performance, the decree may award damages for a breach of the contract, to be assessed either by an issue of quantum damnificatiis, or by a master, at its discretion.'^^ The decree may require the execution and cipal debtor. As all the parties are before the court, this point might be well taken, if there were any estate of the husband to which the plaintiff could resort. Borton v. Bond, 28 Gratt., 815; Penn v. In- gles, 82 Va., 65. But the bill alleges that there is none; that the hus- band is insolvent, and has no estate whatever; and this allegation is not denied in the answer and is sus- tained by the record. This consid- eration also obviates any objection to the bill in this court, on the ground that it contains no prayer for relief as against the husband." "A surety is entitled to have the estate of the principal debtor, so far as applicable, applied to his debt, and where, on a creditor's bill, there is shown to be assets belonging to the estate of the principal debtor, deceased, an account of such assets should be ordered." Paxton v. Rich, 85 Va. 37b, 7 S. E. 531. 367 Rison V. Newberry, 90 Va. 513, 18 S. E. 916; Dickenson v. Scott, 119 Va. 497, 89 S. E. 869. 388 Bennett v. Abrams, 41 Barb. (X. Y.) 626; Noonan v. Orton, 21 Wis. 283; Worrall v. Munn, 38 N. Y. 137; Miller v. Miller, 25 N. .T. Eq. 355. 3«9 Carpenter v. Mut. Safety Ins. Co., 4 Sandf. Ch. (N. Y.) 408, 7 L. Ed. 1152 and note; Grubb v. Starkey, 90 Va. 831, 20 S. E. 784; Dunn V. Stowers, 104 Va. 290, 51 S. E. 366. 3"> Carpenter v. Mut. Safety Ins. Co., 4 Sandf. Ch. (N. Y.) 408, 7 L. Ed. 1152; Perkins v. Washington Ins. Co., 4 Cow. (N. Y.) 645, 8 L. Ed. 516; Union Cent. L. Ins. Co. v. Phillips, 102 U. S. 19, 41 C. C. A. 263. 371 Hogg, Eq. Princp., §410, cit- ing Grubb V. Starkey, 90 Va. 831, 20 S. E. 784. §645 Equity Procedure 846 delivery of deeds and other instruments,^'^ and, wliere the ven- dee and his assignee are parties to the suit, the decree may direct the conveyance to be made directly to the assignee.^'^ So, if a conveyance has been made to a third party to evade specific performance of a prior contract to convey, such conveyance may be set aside where the grantee had notice of such contract.^'* "Where the paramount object of a bill for specific perform- ance is to secure the repayment of money loaned for the pur- chase of land, which defendant has agreed to pay in annual instalments and specific performance, which is only sought as a means to the end, has been rendered practically useless by the expiration of the entire time for payment, the court may, under a prayer for general relief, execute the agreement by making the debt a charge on the land, and ordering the land sold if the debt be not paid by a given time. ' ' ''^ s"20 Enc. PI. and Pr., 480, cit- ing Smith V. Osborne, 86 111. 606; Berry v. Innes, 35 Mich. 189; Wharton v. Stoiitenburgh, 39 N. J. Eq. 299; Carpenter v. Mutual Safety Ins. Co., 4 Sandf. Ch. (N. Y.) 408; Gardner v. Ogden, 22 TST. Y. 327, 78 Am. Dec. 192. "It is not error in an interlocu- tory decree enforcing a specific exe- cution of a contract against a pur- chaser, that it does not direct a deed to be made and tendered to him." Goddin v. Vaughn, 14 Gratt. (Va.) 102. "A decree of specific performance of a contract, and directing a deed to plaintiffs as heirs of the vendee, is not void because of the absence as parties of one or more of the heirs of such vendee. In such case those to whom the deed is made would hold title as trustees for themselves and the other heirs en- titled to the benefita of the re- covery." MeLanahan v. Mills, 73 W. Va. 246, 80 S. E. 351. Specific performance will not be decreed against a married woman as to a contract executed by her husband for a sale of his land in which she joined for the purpose of releasing her inchoate right of dower. Crookshanks v. Eansbarger, 80 W. Va. 21, 92 S. E. 78, 1 W. Va. Law Quart. 135. The heir of a vendor will be com- pelled to convey only such title as be received. Moore v. Moore, 104 S. E. 266 (W. Va. 1920). 373 20 Enc. PI. and Pr., 480, citing Denton v. White, 26 Wis. 679; Paine v. White, 23 Wis. 91. 374 20 Enc. PI. and Pr., 480, cit- ing Bull V. Bell, 4 Wis. 54. 375 Hogg, Eq. Princp., §410. "Where a decree for specific exe- cution of a contract against a purchaser provides that if the pur- chase money, or a part of it, is not paid by a day certain, the prop- erty shall be sold, it is not error to appoint the counsel of the plain- tiffs, there being no objection to the person, the commissioner to make the sale; nor is it error to refuse to associate with him one of the counsel of the purchaser." Goddin V. Vaughn, 14 Gratt. (Va.) 102. 847 The Decree § 648 § 646. The decree in the matter of trusts and trustees — The appointment of a trustee. The order or decree appointing a trustee should extend to the entire trust,^''^ and unless it be a trustee to make sale of property under a trust deed given to secure the payment of a debt, the order should require the trustee appointed to give bond for the faithful discharge of the duties imposed by the trust, and should also fix the penalty of the bond."'' And the order may also provide that the appointment of a trustee be without prejudice to the right of the parties interested to contest the existence of the trust. ^^^ § 64T. The decree in the matter of trusts and trustees further considered — The removal of a trustee. A decree removing a trustee revokes and annuls his powers, removes him from the trust, and names the party who is ap- pointed in his place ; ^'' and a conveyance of the title to the property from the old trustee to the new may be directed, ^^^ as well as an laccounting and settlement on the part of the old trustee. ^^^ § 648. The decree in the matter of trusts and trustees further considered — Instructions to the trustee. A suit by a trustee for instructions, under a triist created by will or otherwise, is in effect a suit for the construction of the instrument. ^^^ That a trustee has the right to ask the 376 Curtis V. Smith, 60 Barb. (X. motion as provided by statute. Va. V ^ Code, 1904, §§ 3419, 3420. See W. ['■^ , ^ , „ Va. Code, 1913, c. 132, §5. See s.TDiinRcomh v. Dunseomb, 2 Abrahams v. Ball, 122 Va. 197, 94: Hen. & Jiunf. (Va.) 11; Crickard s. E. 799. V. Crickard, 25 Gratt. (Va.) 410, 379 Walters v. Hill, 27 Gratt. 419. (Va.) 388. 378 /„ re Carpenter, 131 N. Y. 86, 38" 22 Enc. PI. and Pr., 51, 52. 20 N. E. 1005. 381 Idem, 51. As to other relief, -r^ ,\ . . i. £ 1 V see Brown v. Brown, 104 S. E. 589 For the appointment of chnrch mw'^t' iQon\ trustees, see Va. Code, 1904, § 1399; (W. Va. 1920). 382 See ante, §86; Bullard v. W. Va. Code, 1913, c. 57, § 4. Chandler, 149 Mass. 532, 21 N. E. A trustee may be appointed on nSl, 5 L. R. A. 104, and note; §649 Equity Procedure 848 instructions of the court as to the discharge of his present duties, but not what may be his duty upon future contingencies, is well settled.'*' The decree ascertains the true intention and meaning of the instrument or trust, so that the trustee may fully carry the same into effect,'** and may also declare the validity or invalidity of the trust.'*^ § 649. The decree in the matter of trusts further considered — Misapplication or diversion of trust funds. A personal decree may be rendered against a trustee for trust property which he has converted to his own use.'*' Where there are several trustees, a joint decree may be rendered against them, and the court may determine the order of their liability.'*'' Messer v. Reitz, 81 W. Va. 483, 94 S. E. 952, and cases cited. Trustees have a, right to come into a court of equity for its as- sistance and protection in all cases of doubt and difficulty in the ad- ministration of the trust, or for its direction as to whether the trust ouglit to be executed. Bennett v. Rosenthal, 11 Daly (N. Y.) 101. See Treadwell v. Cordis, 5 Gray (Mass.) 341; Vanness v. Jacobus, 17 N. .J. Eq. 154; Atkinison v. Holthy, 10 H. L. Cas. 313; Neale V. Davies, 5 De G. M. & G. 263. 383 See same citations. "The second question raised on this ap- peal, namely, the determination of the method for distribution of the principal of the trust property on .January 1, 1950, presents a mat- ter of construction which we must decline to consider at this time. There must be something more in a, suit than a demand for a mere construction of an instrument. Many contingencies may occur be- fore January 1, 1950, which will render unnecessary, indeed futile, anything we might say at this time. There is no actual litigation in re- spect of the matter now sought to be determined upon this phase of the subject. " 'Jurisdiction in equity to con- strue wills arises only in cases where there is necessity for such construction in relation to actual litigation as to matters which are proper subjects of equity jurisdic- tion, such as relief on behalf of an executor, trustee, cestui que trust, or legatee.' Buskirk v. Ragland, 65 W. Va. 749, 65 S. E. 101; Martin V. Martin, 52 W. Va. 381, 44 S. E. 198." Prichard v. Prlehard, 83 W. Va. 652, 98 S. E. 877. See ante, § 86, and notes, quot- ing further from this case. Also, see Surrey Lumber Co. \ . Wellons, 106 S. E. 382 (W. Va. 1921). 3S4 p. Episcopal E. Society v. Churchman, 80 Va. 718, 725. 385 22 Enc. PI. and Pr., 70. 386 22 Enc. PI. and Pr., 149, cit- ing, Long V. Fox, 100 111. 43. 387 Idem, citing Furman v. Eap- elje, 67 111. App. 31; McCartin v Traphagen, 43 N. J. Eq. 323. 849 The Decree § 650 Where suit is brought against a trustee and one who has im- properly received trust funds, the decree should he first against the latter, and, if it can not be refunded by him. then 'there should be another decree against the trustee, who will be treated as the surety of the one who improperly received the trust money.'^^ It is decided in Kearfott v. Dandrige^*' that, "if a court of equity takes charge of a large fund brought into a chancery cause, and enters a general decree providing for the propor- tionate distribution of such fund among the distributees entitled thereto, and in subsequent and intermediate decrees relating to portions of such fund it apparently departs from such appor- tionment, in its final distribution of the residue of such fund it should so equalize the same as to make such final decree, including all intermediate decrees, conform to 'the general de- cree.""" § 650. The decree in the matter of usury. The decree expunges the usury, if paid, applying the amount of the illegal interest to the reduction of the ■principal and entering a decree for the payment of the actual debt with its lawful interest.''^ 388 Hogg, Eq. Prinep., § 575, cit- In Virginia, it is provided by ing Vance v. Kirk, 29 W. Va. 344, statute that voluntary payments of 1 S. E. 717. usurious interest will not, in equity, SS9 45 W. Va. 673, 31 S. E. 047. be applied in satisfaction of the 390 "If one of a number of distrib- principal, after the expiration of the utees purchases a portion of the year within which usurious inter- property subject to such fund in est paid can be recovered. Exchange such suit, she is entitled to have Deposit Bank v. Fugate, 93 Va. her distributive share applied as a 821, 23 S. E. 884, following Mun- credit on her purchase money notes ford v. McVeigh, 92 Va. 446, 23 S. in the final distribution of the fund, E. 857. and the court may make such appli- See Eyan v. Krise, 89 Va. 728, cation without her consent." Idem. 17 S. E. 128; Baker v. (Lynchburg ,a, r. „ Tioio OS xro Kt^ oa Nat. Bank, 120 Va. 208, 91 S. E. 391 Greer v. Hale, ao Va. aid, 2? ic^ t> i J u n c< •%. ^ 1^.0 tt ' ' 157; Ruckdeschall v. Seibel, 126 Va. S. E. 873. J59, 101 S. E. 425. :§ 652 Equity Procedure 850 § 651. The decree in the matter of wills — Contest of. In the contest of a will in the Virginias by virtue of statute/** there is a preliminary interlocutory decree or order directing an issue, if demanded by either party, to be tried by a jury, the form of the issue to be as prescribed by the statute.^"' Upon the rendition of the verdict the decree is entered in accordance therewith, unless the verdict be set aside, and the decree declares that the paper probated is either the true last will of the decedent, or that it is not, as ihe jury in its verdict may have found.^^* An order of nonsuit or dismissal can not be entered in a suit to contest a will by one side or party thereto, as may be done in other suits.''' § 652. The decree in the matter of wills further considered — Construction of. The court in the rendition of its decree will so frame it as to promote the intention of the testator,''^ and will specifically declare in its decree the meaning and purpose of the testator with reference to the particular rights and interests presented 39^VV. Va. Code, 1913, c. 77, § 32; Brown v. Hall, 85 Va. 146, 7 S. K Va. Code, 1904, § 2544. 182. 393 Dower v. Church, 21 W. Va. 395 /„ re Lasak's Will, 131 N. Y. 23, 47; Eopar v. Ropar, 78 W. Va. 624, 30 N. E. 112; Hutson v. 228, 88 S. E. 834; Meade v. Meade, Sawyer, 104 N. C. 1, 10 S. E. 85; 111 Va. 451, 69 S. E. 330. Benoist v. Murrin, 48 Mo. 48; The issue prescribed by the stat- McMahon v. McMahon, 100 Mo. 97, ute, "whether any, and if any, how 13 S. W. 208. much, of what was offered for pro- 396 Walton v. .Walton, 7 Johns, bate, be the will of the decedent," Ch. (N. Y.) 258, 2 L. Ed. 286, can not be expanded. The court note, 11 Am. Dec. 456. See the has no power to determine the numerous cases cited in the note to testamentary status of any other Covenhoven v. Shuler, 2 Paige Ch. paper nor to construe the one prop- (N. Y.) 122, 2 !L. Ed. 839, 840, erly in contest. Childers v. ^ilam, 21 Am. Dec. 73; Booton v. Booton, 68 W. Va. 503, 70 S. E. 118; Ward 2 Va. Dec. 576, 29 S. E. 823; Parlis, V. Brown, 53 W. Va. 227, 44 S. E. v. Parks, 9 Paige Ch. (N. Y.) 107,4 488; Harris v. Wyatt, 113 Va. 254, L. Ed. 627; Vaughan v. Vaughan, 74 S. E. 189. 97 Va. 328, 33 S. E. 603; Hurt v. '394 See same citations; Moyer v. Hurt, 121 A'a. 413, 93 S. E. 672; Swygart, 125 111. 262, 17 N. E. 450; Henry v. Haymond, 77 W. Va. 173, 851 Thk De;cbek §653 to the court by the bill ; ^'^ but it will not go outside of the pieadings to construe those parts of the will not involved in the matter before the court, and the construction of which is not necessary to determine the contention of the parties or settle the question presented to the court, nor to establish the rights cf the parties.''^ The court may determine the validity of any of the provisions of the will, so far as it determines the plain- tiff's interest, and may render a decree in his favor for such portions of the property as he is entitled to receive.^'' § 653. A judge interested in the cause can render no decree therein. It is a fundamental principle obtaining under all enlightened systems, having for their object the administration of justice, that a person can not be a judge in a cause in which he is inter- 87 S. E. 78. See numerous addi- tional cases cited under the title "Wills" in 13 Ency. Dig. Va. & W. Va. Rep. 780, and Supplements. "The leading principle in the con- struction of wills is that the inten- tion of the testator, if not incon- sistent with the rules of law, must govern. And this intention is to be ascertained from the whole will taken together. "And where the intention of the testator is incorrectly expressed, the court will carry it into effect by supplying the proper words. "The words of the will may be transposed in order to make a, lim- itation sensible, or to effectuate the .general intent of the testator." Co- venhoven v. Shuler, supra. See tlie title "Wills," Encye. Dig. Va. & W. Ya,. Eep. and Supplements, for numerous Virginia and West Vir- ginia decisions affirming the same 'general rules, and announcing qual- ifications. "The true inquiry is not what the testator meant to express, but what the words he used do express." Xeal V. Hamilton Co., 70 W. Va. 250, 256, 73 S. E. 971; Hurt v. Hurt, 121 Va. 413, 93 S. E. 672. 397 Withers v. Sims, 80 Va. 651; Lorillard v. Coster, 5 Paige Ch. (X. Y.) 172, 3 L. Ed. 674; Moon V. Stone, 19 Gratt. (Va.) 130; Stone V. Kicholson, 27 Gratt. (Va.) 1; Vaughan v. Vaughan, 97 Va. 328, 33 S. E. 603. 398 Withers V. Sims, 80 Va. 651; Dillard v. Dillard, 97 Va. 434, 34 S. E. 60. 390 3 Pomeroy, Eq. Jur., 114; Bowers v. Smith, 10 Paige Ch. (X Y.) 193, 4 L. Ed. note, at p. 942; University v. Tuclcer, 31 W. Va, 621, 8 S. E. 410: Wilson v. Perry, 29 W. Va. 169, 1 S. E. 302: Moiig V. Pvoush, 29 W. Va. 119, 11 S. E. 906 But see avtr. § R6. § 655 Equity Procedure 852 ested, whether he be a party to the suit or not ; '""' and a decree rendered by a person thus interested in the cause is not valid, but will be set aside on a direct proceeding for that purpose.'"'* However, mere formal orders, such as are necessary to bring the cause before the proper tribunal, and where nothing is decided — mere orders entered to advance the cause towards a final hearing — may be entered by an interested judge, but that is the extent of his power/"^ § 654. As to the court's reasons assigned for the rendition of its decree. If a decree contain a statement of a fact or opinion as the reason why the court rendered its decree, and the reason so shown by the decree be a wrong one, the decree will not upon that ground be erroneous, if the decree be right for any reason, apparent from the record.^"^ § 655. The decree can not exceed the demand made in the bill. In no event can a plaintiff have a decree for a sum in excess of that alleged in his bill, together with the interest which has accrued thereon.*"* "The averment of his demand is as essen- ce w. Va. Code, 1916, e. 112, § 9; party, he is disqualified. City of Findley v. Smitli, 42 W. Va. 299, Grafton v. Holt, supra. 26 S. E. 370; Forest Coal Co. v. 4oi See same citations. A decree Doolittle, 54 W. Va. 210, 46 S. entered by an interested judge is E. 238; City of Grafton v. Holt, 58 voidable, but not void. Thompson W. Va. 182, 52 S. E. 21. "The v. Buffalo Land & Coal Co., 77 W. maxim of the common law, 'nemo Va. 782, 88 S. E. 1040. (leiit case judex in propria causa' "W- Findley v. Smith, 42 W. Va. remains inviolate in this state. 299, 26 S. E. 370; Frantz v. Lester, Idem, 187. "In order to disqualify, 82 W. Va. 328, 95 S. E. 945. the interest of the judge must 403 Vance Shoe Co. v. Haught, 41 be in the subject matter of the W. Va. 275, 23 S. E. 553; Shrews- cause, and not merely in a legal bury v. Miller, 10 W. Va. 115; question involved in it." Forest Depue v. Miller, 65 W. Va. 120, 64 Coal Co. V. Doolittle. supra; Cheuv- S. E. 740, 23 L. R. A. (N.S.) 775. ront V. Horner, 62 W. Va. 476, 59 404 Enoch v. Mining & Petroleum S. E. 964. But if he is a quasi Co., 23 W. Va. 314. 853 The Dkckee § 656 tial as the proof of it, and both must concur to entitle him to relief. ""5 § 656. As to a decree rendered upon a conflict of evidence. A mere conflict in the evidence, as hereinafter shown, ^"^ does not authorize a chancellor to direct an issue to be tried by a jury. Hence, in many cases, in fact in most instances, the court must render its decree upon a conflict of evidence. The rule obtaining in such cases is that a decree will not be reversed by an appellate court when it is based upon depositions which are so conflicting and of such a doubtful and unsatisfactory char- acter that different minds and different judges might reason- ably disagree as to the facts proved by them, or as to the proper conclusion to be deduced therefrom, although the testimony may be such that the appellate court might have pronounced a dif- ferent decree, had it acted upon the cause in the first instance.*"^ 405 Jdem. Eeger v. O'Neal, 33 W. Va. 159, 10 406 J'ost, § 688. S. E. 375 ; Fitzgerald v. Phelps & *07 Smith V. Yoke, 27 W. Va. Bigelow Windmill Co., 42 W. Va. 639; Prichard v. Evans, 31 W. Va. 570, 26 S. E. 315. at p. 141, 5 S. E. 461, citing Smith See ante, §579, citing a great V. Yoke, supra; Apple & Co. v. number of the later cases support- Ganong, 47 Miss. 189; Doonan v. ing this proposition. Glynn, 28 W. Va. 715. See also, CHAPTER XXVII COMMISSIONEKS IN CHANCERY § 657. How commissioners in chancery are appointed, and tbeir duties and powers. § 658. When a cause should not be referred to a commissioner. § 659. When a cause should be referred to a commissioner. § 660. When the reference of a cause to a commissioner is discretionary with the court. § 661. Who may act as commissioner. § 662. Tlie order referring a cause to a commissioner. § 663. The order referring the cause to a commissioner further considered. § 664. The notice of the time and place of taking the account. § 665. Tile parties entitled to appear before tlie commissioner. § 660. Adjournments by tlie commissioner. § 607. The introduction of evidence before the commissioner. § 668. The introduction of evidence before the commissioner further con- sidered. § 669. The rights of tlie parties as to the establishment and defense of claims before the commissioner. § 670. The report of the commissioner and its return. § 671. The report of the commissioner and its return further considered. S 672. The report of the commissioner and its return further considered. § 673. When a cause may be heard upon a commissioner's report. § 674. The confirmation of a commissioner's report. § 675. Objections to a commissioner's report for errors upon the iaoe thereof. § 676. E.xceptioiis to a commissioner's report and when necessary. § 677. Effect of not excepting to a commissioner's report. § 678. When exceptions may be filed to a commissioner's report. § 679. Who may file exceptions to a, commissioner's report. S 6S0. The effect of the finding of a commissioner as to a matter of fact upon a conflict of evidence. § 681. The effect of the finding of a commissioner as to a matter of fact upon a conflict of evidence further considered. § 682. The report when it contains alternative statements. § 083. When the report of a commissioner will he recommitted. § 684. When the re])ort of a commissioner may .be recommitted further considered. § 685. The effect of an order of reference in a creditors' suit. 854 855 Commissioners in Chancery §657 §657. How commissioners in chancery are appointed, and their duties and powers. Commissioners in chancery, often called "masters in chan- cery," are appointed by a court of equity,^ and in the Virginias by the circuit courts, exercising equity jurisdiction,^ or by the judges thereof in vacation,' and the number thus appointed varies in the different courts.* Every commissioner, before he can act, must take an oath for the faithful and impartial dis- charge of his duties.^ He shall examine and report upon such accounts and matters as may be referred to him by any court ; ' and he shall have power to take depositions, to swear and ex- amine witnesses, "and to certify their testimony ; ' but his power is limited to that contained in the order of reference, and in his examination and report he can not transcend the scope and purpose of such order.* 12 Daniell, Ch. PI. and Pr. (6tli Am. Ed.), 1168 and notes; Adams, Eq. {8th Ed.), 378. Objections to the appointment of a commissioner ought to be made upon the first opportunity, else such objections will be treated as waived. Dewing V. Button, 48 W. Va. 576, 37 S. E. 670. 2 W. Va. Code, 1913, e. 129, § 1 ; Pollard's Supp., 1916, to Va. Code, § 3319. 3 Idem. 4 In West Virginia the maximum number that may be appointed for each court varies from four to eight, depending upon the popula- tion of the county. In Virginia, the maximum number is four, ex- cept in the numerous specific in- stances provided for by statute. See same statutory references. 6W. Va. Code, 1913, c. 129, §2. In Virginia, by general law, every person appointed or elected to an office must take an oath for the faithful performance of its duties. and this, of course, wculd embrace commissioners in chancery. Va. Code, 1904, §§ 168-182. 6W. Va. Code, c. 129, §3; Va. Code, 1904, § 3320; 2 Bart., Ch. Pr. (2nd Ed.), 684. "A master in chancery is an of- ficer of the court, to whom the court may refer any matter of inquiry during the progress of a cause, and thereupon it becomes the duty of the master to investigate the matter referred to him, to hear the parties thereon, and to make his report '•o the court." Merwin, Eq. and Eq. PI., § 999. Commissioners in chancery "have been aptly termed the 'arms of the court.'" Shipman v. Fletcher, 91 Va. 473, 477, 22 S. E. 458; Hart- man V. Evans, 38 W. Va. 669, 677, IS S. E. 810. nv. Va. Code, 1913, c. 129, §1; Atwood V. Shenandoah Val. R. Co., 85 Va. 966, 9 S. E. 748; Moore v. Butler, 90 Va. 683, 19 S. E. 850. sTorrey v. Shaw, 3 Edw. Ch. §658 / Equity Procedure 856 § 658. When a cause should not be referred to a commissioner. A cause ought not to be referred to a commissioner merely :o enable a party to take evidence to establish the allegations of his bill.' The cause ought to be so far developed by the (N. Y.) 356, 6 L. Ed. 687; Stoning- ton Sav. Bank v. Davis, 15 N. J. Eq. 32; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 1221, note 2, citing many cases; White v. Drew, 9 W. Va. 695; Ware v. Starkey, 80 Va. at p. 198; Atkinson v. Solenberger, 112 Va. 667, 72 S. E. 727. sLivey v. Winton, 30 W. Va. 554, 4 S. E. 451; Tilden v. Maslin, 5 W. 377; Porter v. Young, 85 Va. 49, 6 S. E. 803, 805; Watkins v. Young, 31 Gratt. (Va.) 94; Sadler V. Whitehurst, 83 Va. 49, 1 S. E. 410; Baltimore, etc., Co. v. Wil- liams, 94 Va. 425, 26 S. E. 841; Beale v. Hall, 97 Va. 388, 34 S. E. 53; Millhiser v. McKinley, 98 Va. 208, 35 S. E. 446; Boggess v. Goff, 47 W. Va. 139, 34 S. E. 741; Hamilton v. Stephenson, 106 Va. 77, 55 S. E. 577; Savings Bank of Richmond v. Todd, 114 Va. 708, 77 S. E. 446; Gist v. Virginian Rail- way Co., 79 W. Va. 167, 174, 90 S. E. 554. "A bill is filed to enforce the pay- ment of the balance due on a final settlement of all accounts between the plaintiff and defendant, which is evidenced by a contract reciting such settlement in full. The answer admits the settlement, but alleges that it was made by the defendant in ignorance of the existence of certain accounts against the plain- tiff, and which accounts were not included in the settlement. This is denied hy the replication; no proof is taken in the case. The court ought not to refer the cause to a commissioner to settle the accounts between the parties prior to the date of such settlement, but should render a decree for the amount due hy such settlement, without making such order." Smith V. Patton, 12 W. Va. 541, 542. See Ammons v. South Penn Oil Co., 47 W. Va. 610, 35 S. E. 1004. Touching the principle laid down in the text, the court in the course of its opinion in Bresee v. Brad- field, 99 Va. 331, 38 S. E. at p. 198, "From all the authorities we de- duce the conclusion, that where from the nature of the case, and of the relief sought, an account is necessary to enable the court to do justice between the parties, an order of reference will not be en- tered until its propriety has been made to appear by the evidence; and if in such a case it be sub- mitted upon the bill without proof, and an answer denying its allega- tions, it should he dismissed; but where there is nothing in the plead- ings and proofs to make an account proper and necessary, and the court has improvidently granted an order of reference, it is harmless error, for which the cause should not be reversed. Lancaster v. Barton, 92 Va. 620 [24 S. E. 251]." See Dudley \ . Barrett, 66 W. Va. 363, 06 S. E. 507; Teter v. Moore, 80 W. Va. 443, 93 S. E. 342. In Watkins v. Young, supra, quoting from 2 Rob., Prac. (old), 359, the court says: "In Virginia 857 Commissioners, in Chancery §658 pleadings and proofs as to show the propriety of an order of reference for an account, and the extent to which the account should go.^" So, if a demurrer to a bill be overruled, and a nothing in chancery has been pro- ductive of so much mischief as orders of account unwisely made. Cases have frequently arisen in which, if a particular point were deti-rmined one way, an account would be proper; if determined the other way, an account would not be required. In such cases the court has often directed an account before it decided the point upon the deci- sion of which the propriety of tak- ing the account depended. After much time consumed and much money expended in obtaining the account there would be a decree in the cause ascertaining that the ac- count which had been ordered was wholly unnecessary. The court of appeals has discountenanced such a, practice." The objection to the reference of a cause to a commissioner in chan- cery comes too late after the cause has been fully heard and determined by him on the merits against the objector. Dewing v. Hutton, 48 W. Va. 576, 37 S. E. 670; Jones v. Rose, 81 W. Va. 177, 94 S. E. 41. 10 First Nat. Bank v. Parsons, 42 W. Va. 137, 24 S. E. .5.54; Porter V. Young, supra. See 11 Ency. Dig. Va. & W. Va. Rep. and numerous cases cited. On suit for an accounting, where the answer sets up a credit not appearing in the bill, and refers to certain recorded contracts not produced by the orator as necessary to an intelligent understanding of the case, and states that a certain item is unintelligible to the defend- ant, an accounting is properly ordered without proof in support of the bill, as the answer is not sufficiently responsive to authorize dismissal of the suit. Porter v. Young, supra. Where a bill to enjoin a carrier from collecting wharfage, and to re- quire it to account for amounts paid by the several plaintiffs, does not aver how much was paid in the ag- gregate, or in what proportion or under what circumstances, and is wholly denied by the answer, and not supported by proof, the court, on granting the injunction, can not order a reference to ascertain the amount of wharfage collected from plaintiffs. Baltimore, etc., Co. v. Williams, supra. In Millhiser v. McKinley, supra, the court, in the course of its opin- ion, says: "The circuit court did not err in overruling the motion of the complainants to refer the cause to one of its commissioners for ac- counts to be taken. The main ob- ject of the reference seems to have been to ascertain which of the debts secured in the deed of assignment were separate debts of one of the partners, and not firm debts. The bill charges that certain of the debts, which it specifies, and per- haps others, are individual and not partnership debts. The answers deny the charge, and aver that the debts named, arid all the other debts secured, with the exception of two debts of very small amount, and about which no contention is made, are firm debts. The burden was §658 Equity Peocedure 858 certain time is given the defendant in which to answer the bili, the cause can not properly be referred to a commissioner to ascertain the plaintiff's demand till the time in which the de- fendant was given to answer has elapsed ; ^^ nor can it then be referred, as a rule, if the answer has been filed and denies all -the facts upon which the plaintiff's claim is based.^^ Where a demurrer to a bill has been overruled, and no day given the defendant in which to answer, no order of reference can prop- erly be made in that state of the eause.^' In a suit to set aside a fraudulent conveyance of land and to subject the same to the payment of a debt of the grantor, who claims credits and set- offs as to such debt, but which he fails to prove, a reference of the cause to a commissioner is unnecessary.^^ In a suit to sur- charge or falsify the account or ex parte settlement of a fiduci- ary, in the absence of an allegation in the bill of one or more upon thj complainants to make good the charge. An order of refer- ence is not to be awarded to enable a plaintiff to make out his case. It should not he made for the pur- pose of furnishing evidence in sup- port of the allegations of the bill, nor until he has the right to de- mand it." But a, cause will not he reversed for the sole reason that a refer- ence was premature. Dudley v. Barrett, 66 W. Va. 363, 66 S. E. 507; Teter v. Moore, SO W. Va. 443, 93 S. E. 342. And objection- ■ . on the ground of prematurity may be waived. Jones v. Rosa^ 81 W. Va. 177, 94 S. E. 41. 11 Neely v. Jones, 16 W. Va. 62.5, 37 Am. Rep. 794 ; Moreland v. Metz, 24 W. Va. 119, 49 Am. Rep. 246; Goff V. McBee, 47 W. Va. 153, 34 S. E. 745. It is held in Foley v. Euley, 43 VV. Va. 613, 27 S. E. 268, that, when a demurrer to a bill is over- ruled, a time reasonable under the circumstances of the case must be given for answer; but when a time is fixed, objection to its shortness must be made, else the point is waived. A mere order of reference, deciding nothing, may be made without such answer. See McClung V. Sieg, 54 W. Va. 467, 476, 46 S. E. 210, 66 L. R. A. 884. But see Billingslea v. Manear, 47 W. Va. 785, 35 S. E. 847. "Neely v. Jones, 16 W. Va. 625, 37 Am. Rep. 794: Gist v. Virginian Railway Co., 79 W. Va. 167, 174, 90 S. E. 5.')4. But in order to retard the refer- ence, the answer must be a suffi- cient answer to the bill. Grant v. Cumberland Valley Cement Co., 58 W. Va. 162. 52 S. E. 36; State v. Moore, 71 W. Va. 285, 76 S. E. 461. 13 Billingslea v. Manear, 47 W. Va. 785, 35 S. E. S47. But see McClung v. Sieg, 54 VV. Va. 467, 476, 46 S. E. 210, 66 L. R. A. 884. 14 Singer Mfg. Co. v. Bennett, 2» W. Va. 16. 859 Commissioners in Chancery § 659 items of error iri' such account or settlement, none appearing upon the face thereof, there should be no reference to a com- missioner, but the bill should be dismissed unless amended.^' Where a decree can be rendered without difficulty upon the evidence in a cause, the cause ought not to be referred to a commissioner.^^ "When it does not appear that a party has any interest in the suit or subject matter of litigation, an order of reference will not be entered upon his motion,^' nor by the court ex mero motu}^ Although it is within the province of a commissioner to pass upon questions of fact as well as those of law,''' it is said not to be proper to refer to him any matter of fact put in issue by the pleadings, and as to which proofs have been taken in chief in the usual way.^" Nor should a cause be referred to a commissioner in the absence of necessary parties who are interested in the subject to be inquired into and re- ported upon by the commissioner.^^ § 659. When a cause should be referred to a commissioner. There are so many eases in which a reference to a. commis- sioner is necessary, and the matter depends so much upon the facts and circumstances of each particular case, that no broad and inflexible rule can well be formulated to meet the various phases of equity practice, so often demanding the work of a 15 Seabright v. SeabrigTit, 28 W. plained by Spencer, C. J., who de- Yi. 412. livcred tlie court's opinion in Slee wLevert v. Eedwood, !) Port. v. Bloom, nvpra: "I do not under- (Ala.), 79; Savajre v. Rerry, .3 Til. stand that facts tliat relate to the (2 Scam.) .54.5. gist of a controversy, which the 17 Henderson v. Alderson, 7 W. plaintiff is hound to prove, to en- Va. 217. title himself to relief, or which a 18 Idem. defendant is bound to prove, in 19 2 Bart., Ch. Vr. (2nd Ed.), avoidance or discharge of the de- 694. mand, are ordinarily referred to a 20 Idem; citing Matthews on Com- master." mjssioners, p. 42: Liinsford v. Boa- ^'Wilson v. Carrico, 46 W. Va. tion, Der. Eq. (16 N. C.) 483: Slee 466, 33 S. E. 237; Farmers' Bank V. Bloom, 20 Johns. (N. Y.) 669. v. Watson, 39 W. Va. 342, 19 S. Tho tnie meaning of the principle, E. 413. a.H stated in the text, is thus ex- [29] § 659 Equity Procedure 860 commissioner that the ends of justice may be fully promoted. Perhaps as comprehensive a general rule as can be given iiere is that, whenever the cause involves the adjustment and settle- ment of accounts, the priority of right among lienholders, the more effectual vs^orking out of details which the judge satting in court is unable to investigate, or to make some specific in- quiry necessary to satisfy the conscience of the chancellor, there should be a reference of the cause to a commissioner.^^ In illustration of this rule it may be well to state that it is laid down by the courts that where a question as to the title of real estate arises, and the decree of the court must determine sncli question, tlie cause ought to be referred to a commissioner to examine into and report upon the title.^^ Thus, where suit is brought for the specific execution of a contract for the sale of land against the purchaser, he is entitled upon application to have the matter of title referred to a commissioner to be ex- amined and reported upon,^* or the court may itself order a reference where the proof raises a doubt as to the title.^^ But where the question of title is one of law, and the facts are all before the court, an order of reference will not be entered.^* 224 Minor, Inst., 1220; Barbour, titled to a reference for snch pur- Ch. Pr., 408; Adams, Eq. (8th Ed.), pose when the cause is already 378; ante, §020; Bland v. Wyatt, submitted to the court on facts 1 H. & M, (Va.) 543; Kraker v. sufficient to show title. Armstrong Shields, 20 Gratt. (Va.) at pp. 391, v. Maryland Coal Co., 67 W. Va. 392. 589, 69 S. E. 19.5, Xor, it seems, 23 Middloton v. Selby, 19 W. Va. is it ever neces.sary to order a 167; Beverly v. Lawson, 3 Munf. reference to determine title where (Va.) 317; Armstrong v. Mary- sufficient' facts are already before land Coal Co., 67 W. Va. 589, 69 the court for such a, determination. S. E. 195. Idem, 611, 612. Likewise, under proi)er circum- -■■"' See same citations, stances, there may be a reference soQoddin v. Vaughn, 14 Gratt in order to determine the location (Va.) 102; Tracewell v. Boggs, 14. of a disputed boundary line. State W. Va. at p. 262; Armstrong v. V. King, 64 W. Va. 546, 03 S. E. Maryland Coal Co., 67 W. Va. 589, 468. 611, 612, 69 S. E. 195. 24Middleton v. Selby, 19 W. Va. In Thomas v. Davidson, 76 Va. 167; Beverly v. Lawson, 3 Munf. at p 343, Staples, J., in his opin- (Va.) 317. But a party is not en- ion, says: "According to the Eng- 861 Commissioners jn Chanceuy §659 As just stated, there ought to be a reference in all matters of controverted mutual and complicated accounts.-' In the settle- ment of partnership accounts, a reference to a commissioner is almost, if not quite, the universal practice, and the cause goes to a commissioner to take and report an account as a matter of course.^^ It is a common practice to refer the question of the genuineness of writings to a commissioner.^' And where, in the case of a deficiency of personal assets, a creditor of the de- cedent files a bill for the purpose of subjecting land devised by him to the payment of his debt, it is error for the court to decree a sale for that purpose before ordering an account and settling the priorities of the liens thereon, though the parties agree that a certain statement filed in the cause should be lish practice, either party may have the report of a commissioner upon the title, and there is great advantage in this practice, because there the commissioners are men learned in the law and thoroughly conversant with such questions. "But in Virginia the rule is not universal, and a reference to a com- missioner is often refused where the facts are all before the court, and the only effect would be to burden the parties with unnecessary costs. There is no settled rule of practice in this state on the subject. A reference to a commissioner may be very proper, and is often had where the title is doubtful and obscure, or depending upon matters in pais. But when the court is in full pos- session of all the evidence, no pos- sible advantage can result from an inquiry by a commissioner." The language of the latter deci- sion is quoted and approved in Armstrong v. Maryland Coal Co., supra. 2'' Bland v. Wyatt, 1 H. & M. (Va.) 543; Adams, Eq. (8th Ed.), 379; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 1160, citing Beale v. Beale, 116 111. 202, 5 N. E. 540; French v. Gibbs, 105 111. 52.3; Davis V. St. [Louis & S. F. By. Co., 25 Fed. 786. See also Backus' Appeal, 58 Pa. St. 186; People's National Bank V. Virginia Textile Co., 104 Va. 34, 51 S. E. 155. 28 Cottle V. Leitch, 35 Cal. 434; Scott V. Pinkerton, 3 Edw. Ch. (N. Y.) 70, 6 L. Ed. 574; Robertson v. Baker, 11 Fla. 102; Slater, Myers & Co. V. Arnett, 81 Va. 432; ante, §643. "Where a partnership is admit- ted, an account can he had, not- withstanding the defendant denies there is anything due to the com- plainant, and even though the an- swer alleges that the latter is in- debted to the former. And where on the taking of the accounts an indebtedness appears (i. e., by the complainant to the defendant), the defendant can have a decree for the balance." Scott v. Pinkerton, sit- pra. 29 ITarnsberger v. Cochran, 82 Va. 727, 1 S. E. 120. §660 Equity Procedure 862 taken as a true exhibit of the indebtedness of the estate to the plaintiff.'" § 660. When the reference of a cause to a commissioner is discretionary with the court. It is said that in most jurisdictions the reference of a suit in equity to a commissioner is discretionary with the court. '^ Be this as it may elsewhere, in the Virginias, in some cases, as we have seen, a reference must be ordered.'^ However, even in these states, a reference is often a matter of sound discre- tion with the court. '^ Thus, the court may state an account without referring the suit to a commissioner for that purpose, when there is sufficient data and evidence in the cause to enable soDaingerfieW v. Smith, 83 Va. 81, 1 S. E. 599. 31 2 Daniell, Ch. PI. and Pr. ( 6th Am. Ed.), 1169, note, citing Martin v. Foley, 82 Ga. 552; Rehkopf v. Kuhland, 30 S. C. 234; Bryan v. Morgan, 35 Ark. 113. 32 Ante, §§ 626, 629, 659. 33 Darby v. Gilligan, 43 W. Va. 755, 28 S. E. 737; Dorr v. Dewing, 36 W. Va. 466, 15 S. E. 93; Cog- bill V. Boyd, 79 Va. 3; Kraker v. Shields, 20 Gratt. (Va.) at p. 392; Pairo V. Bctliell, 75 Va. 825; Mar- shall V. Porter, 71 W. Va. 330, 333, 76 S. E. 653. In Kraker v. Shields, siipra, Mon- oure. P., in the course of his opin- ion, speaking for the wliole conrt, says: "The question when it is proper, or may he useful, to resort to the aid of a commissioner, is one which addresses itself to the sound discretion of the court, and as to which a large latitude of discretion must be allowed to the court; though of course the court ought to exercise such discretion soundly, to prevent unnecessary expense or de- lav; which seems to ho the chief. if not the only evils, of an improper reference. The court is responsible for the correct decision of the cause, and can not shift such responsibility from its own shoulders to those of a commissioner. But it can avail itself of the assistance of a com- missioner to prepare the cause and place it in the best possible state to enable the court to decide it cor- rectly. The most invaluable assist- ance may be afforded to the court by the agency of an intelligent, skillful, and experienced commis- sioner. He has often an advantage, which the court has not, in seeing and hearing the witnesses give their testimony, and being thus better able to judge pf its weight. And where he acts only on the proofs already in the cause, as he often does, he may afford important aid to the court by deducing the ma- terial facts of the case from a large mass of testimony, and enabling counsel, by means of exceptions Lo his report, to make up and present to the court the only issues requir- ing its decision in the cause." 863 Commissioners in Chancery § 661 it properly to do so.'"* So, when the liability of a trustee is fixed, and the only question to be determined is the amount of interest to be paid, the court may ascertain this without re- ferring the cause to a commissioner.'^ The court, in its discre- tion, may refer a cause to a commissioner to ascertain whether a eomtract was made with Confederate money as a standard of value, or whether the notes were to be paid in currency of the time when they fell due.'^ In a suit for specific performance, an account may be directed to ascertain the amount of taxes paid on the land, the value of improvements made thereon, and the rents and profits thereof.^' In a suit for the recovery of a legacy, the answer of the executor admitting a sufficiency of assets in his possession to pay all debts and legacies, the court may decree the payment of the legacy without ordering an account.^' A court may refer a cause to have the rents and profits of real estate inquired into and reported by the com- missioner.'' And a court, in its discretion, may refer a suit brought to set aside a fraudulent conveyance to have the ques- tion of fraudulent intent determined by a commissioner.*" § 661. Who may act as commissioner. The commissioner, inasmuch as he acts judicially, must be a disinterested or indifferent person, so far as the matters in con- troversy to which his inquiry relates are concerned.*^ Thus, an attorney employed in a cause is not a competent commis- sioner to take an account ordered therein,''^ nor is a creditor in 34 Darby v. Gilligan, 4.3 W. Va. ■'•o Sturm v. Flomin;;, 20 W. Va. 7.^)5, 28 S. E. 737. SS. ssCogbill V. Boyd, 70 Va. 3. 40 :\[oorp v. Butler, 00 Va. 6S.5, 36Kraker v. Shields, 20 Gratt. 10 S. E. sr,0. (Va.) 302. *^ Rowers v. Bowers, 29 Gratt. 37 Allen V. Smith, 1 Lei^li (Va.) (Va.) 607; Dillard v. Krise, 86 Va. 231; Stuart v. White, 2.5 Gratt. 410, 10 S. E. 430; Mountain Lake (Va.) 300. Land Co. v. Blair, 109 Va. 147, 63 ssMcEae v. Brooks, 6 Munf. S. E. 751. ^Va.) 157; Sharpe v. Rockwood, See Findley v. Smith, 42 \V. ^'a. 78 Va. at p. 33. 200, 26 S. E. 370. 42 Bowers v. Bowers, 29 Gratt. (Va.) 697. §662 Equity Peoceduee 864 a general creditors' suit a proper person to act as a commis- sioner to state an account in such suit/' nor a guardian ad litem for an infant party.*^^ And no one but a regularly appointed commissioner of the court wherein the cause is pending can take an account, unless the parties agree to the appointment of some one else, or the court shall deem it proper that some other person be appointed.*^ § 662. The order referring a cause to a commissioner. The order of reference may be entered by the court, ""^ or by the judge thereof in vacation.^^ It is an interlocutory decree,*^ founded upon the pleadings and proofs in the cause, and must be commensurate with them in its scope and extent.''* It is usual to designate in the decree to which one of the commis- sioners 'the cause is referred, and the decree must embody the directions of the court as to what matters the commissioner is to make inquiry and report thereon to the court/^ It should *3 Dillard v. Kriae, S6 Va. 410, 10 S. E. 430. 43a American Bonding Oo. v. American Surety Co., 103 S. E. 599 (W. Va. 1020). 412 Bart., Cli. Pr. (2nd Ed.), 684; Crislip v. Cain, 19 W. Va. 438. "A special commissioner is by consent of parties appointed by a. chancery court to make report on certain matters in controversy in the cau.'^e. The report of such com- missioner may be set aside by the court for causes, which would jus- tify the court in setting aside the report of a, general commissioner on the subject, who lias without the consent of parties been directed to malie the report; such special com- missioner is not to l)c regarded as an arliitrator eliosen by the parties, nor his report as an award." Cris- lip v. Cain, supra. "Disqualifying interest on the part of a commissioner to wliom a cause is referred is waived by a party who, having full knowledge of siieh interest, makes no objec- tion to the appointment of the com- missioner and permits the procedure before him to go on, without ob- jection." Teter v. Moore, 80 W. Va. 443, 03 S. E. 342. See Peery's Admr. v. Elliott, 101 Va. 709, 44 S. E. 919. "SW. Va. Code, 1913, e. 129, §5; Va. Code, 1904, §3426; 2 Bart., Ch. Pr. (2nd Ed.), 683. ■"■• See same citations. But no order of reference shall be made in vacation until reason- able notice has been served on the opposite party or his attorney of the time and place of making the motion. See same statutes. "In'f, § .594. 4" Henderson v. Alderson, 7 W. Va. 217; Consequa v. Fanning, 3 •Tohns. Ch. (N. Y.) 587. fim. 1 L. Ed. 726, 729; Bland v. Stewart, 35 W. Va. .-ilS, 14 S. E. 215; Atkinson V. Solenberger, 112 Va. 667, 72 S. E. 727. Remsen v. Remsen, 2 Johna 865 CoMMissiONEBs IN Chanceey § 662 specify the principles upon which the account is to be taken, when any question arises as to how the inquiry to be made by the commissioner should proceed, and these principles should be determined by the court before the cause is referred to a com- missioner." The court in its decree may give instructions to the commissioner as to any matter submitted to him for investi- gation and report." Thus, it may direct the commissioner that in making up his account he shall not hear and consider certain evidence, if the evidence thus excluded be improper.^^ These instructions or special directions sometimes extend to the allow- ance or rejection of particular items in an account,^' and the court will settle the eonstrnction and efiPect of an agreement be- tween the parties, by which their mutual dealings are regu- lated, and by which, eonspquently. the account must be con- trolled.^* And It is provide'd by statute in the Virginias, that "a commissioner who doubts as to any point which arises be- fore him, in taking an account to be returned to any court, may in writing submit the point to such court, or the judge thereof, who may instruct him thereon. "^^ Tt seems to us that the in- structions given under this statute ought to be embodied in an order entered in the cause and thus made a part of the record therein. But aside from this statute, it is the settled equity practice to permit a commissioner to apply to the court from time to time for further directions, and in some cases a Ch. fN. Y.) 40.=;. 1 L. ■Rd. 4fi3. T>ie sa B„t it aeems that the more scope of the inquiry can not jro he- modern practice forhids the inser- yond the direction in the order of tion in tlie order of directions aa reference. Atkinson v. Solcnherfter, to what items of the account should 112 Va. 667, 72 R. K. 727. or should not he allowed. 2 Dan- soUemsen v. T?emsen. fniprn. and idl. Ch. PI. and Pr. (6th Am. Ed.), note in 1 L. Ed. 463: Moffitt v TTan- 12.'13, note 2. ner, 1.54 111. 640. 30 X. E. 474 ■. '^tTiJrm. citing: Hudson v. Tren- Co^hill V. Boyd. 70 Va. 1, 3. ton Locomotive Mach. Mfg. Co., 16 51 Camphell v. White. 14 W. Va. N. J. Eq. 475, 477: Sharp v. Mor- 122: Carskadon v. Minlce, 26 W. row, 6 T. B. Monroe 300. Va. at p. 73R. ^"'^- Va. Code, 1013, c. 129, §6; f^^ Carskadon v. Minke, 26 W. Va. Va. Code, 1004, § 3322. 738. § 664 Equity Procedure 866 clause to this effect is inserted in the order of reference."* As a rule, however, applications for advice as to the relevancy or admissibility of evidence is discountenanced by the court.^' § 663. The order referring the cause to a commissioner fur- jer considered. So essential is the order of reference to the right of the com- missioner to act, that it is held it can not be waived by the act of the parties.''^ But where it appears that a commissioner's report purports to have been made in obedience to an order of court, such report having been made the basis of the court's decree, and no question having been raised as to the commissioner's authority in the court below, tlie appellate court will presume that the report was made by proper authority, though no order of reference is jn the record.^' The order usually provides, in addition to the specific matters set out therein, that the commissioner shall report upon such other matters as he may deem pertinent or any party may require. This clause in the decree will not authorize the commissioner to act upon anything not pertinent to the case made by the bill or other pleading in the cause.'" § 664. The notice of the time and place of taking the account. A commissioner can not act under an order of reference until proper notice of the time and piace of taking the account has been given to the parties to the cause who are interested in the =6 17 Enc. PI. and Pr., 1031, 1032. matters, and hot even the consent 57 Idem, 1032. of tlie parties will warrant the 58 17 Enc. PI. and Pr., lOOS, eit- commissioner in hearing evidence on ing Stone v. Merrill, 43 Wis. 72. matters not in issue in the plead- 59 Wills v. Dunn, 5 Gratt. (Va.) ings, or examining into matters de- 384. liors his commission. Tlie statute 60 Bland v. Stewart, 35 W. Va. of Virginia is, however, very broad, 518, 14 S. E. 215; Atkinson v. Solen- and compels the commissioner to herger, 112 Va. 667, 72 S. E. 727. state specially any matters 'which Speaking of this part of an order may be required by any person in- of reference, an able Virginia au- terested to be so stated.' " 2 Bart., thor says: "This, of course, con- Ch. Pr. (2nd Ed.), 604. fines the commissioner to pertinent 867 Commissioners in Chancery 664 account. ^1 The manner and extent of the notice is usually in- serted in the order of reference, and in West Virginia such notice may be by order of publication and posting at the front door of the courthouse, or by a mere posting at the front door of the courthouse and four other public places in the county, or by personal service upon the parties themselves.^^ The pub- lication of the notice in a newspaper for the time required by the statute is equivalent to personal service,^' and has this effect though not so declared in the decree itself ; ^* and even though the parties do not see the published notice or even hear of it."^ In West Virginia, in a suit to enforce a judgment lien, the notice to lienholders ought to be given, as no decree for the distribution of the proceeds of the sale of real estate can be made until this is done ; ** and this notice is given by the com- missioner in the manner provided by statute."' It is further provided by statute in West Virginia that no decree for the distribution of the proceeds of the sale of the real estate of a 61 2 Bart., Ch. Pr. (2nd Ed.), 686, citing Daniell, Ch. PI. and Pr., Vol. 2, p. 1170, note; Minor, Inst., Vol. 4, Pt. 2, p. 1221; CamplK'll v. Win- ston, 2 H. & M. (Va.) 10; Winston V. Jolmson, 2 Miinf. (Va.) 305; Desty, Fed. Procedure, 304. See also, Livesay v. Fearaster, 21 W. Va. 83; Straycr v. Long, 83 Va. 715, 3 S. E. 372; Dorr v. Rolir, 82 Va. 359. But appearance of a party with- out objection before the commis- sioner dispenses with the necessity for notice as to him. Herrell v. Board of Supervisors of Prince Wil- liam Co., 113 Va. 594, 75 S. E. 87. Also see State v. Haymond, 84 W. Va. 292, 100 S. E. 81. 62 W. Va. Code, 1913, c. 129, § 4. See Va. Code, 1904, § 3321. Marling V Robrecht, 13 W. Va. 440; Hill V. Bowyer, 18 Gratt. (Va.) 364; Dillard v. Krise, 86 Va. 410, 10 S. E. 430; Livesay v. Feamster, 21 W. Va. 83. In Virginia the statute does not authorize the service of the notice by it mere posting thereof at tlie front door of the court house and four other public places. "3 See same citations. As to what constitutes tlie four weeks' publication as required by statute, see atite, § 20. o-i Marling v. Robrecht, 13 W. Va. 440. 05 Hill V. Bowyer, 18 Gratt. (Va.) 364. ""W. Va. Code, 1913, e. 139, §7. There is no such statute as this in force in Virginia. See Livesay v. Feamster, 21 W. Va. 99, 100; Neely v. Jones, 16 W. Va. 625. <■'■! W. Va. Code, 1913, c. 139, § 7, and the authorities last above cited. 665 Equity Procedure 868 decedent shall be made until a notice to the decedent's creditors has been published and posted in the manner and for the time set forth in the statute/'^ The form of the notice is not material, and it will be sufficient if it inform the parties of the time and place of taking the account and the suit in which it is to be taken.^^ If the order of reference does not prescribe the number of days' notice which shall be given the parties, leaving such matter to the discretion of the commissioner, such notice must be reasonable under all tlie circumstances of the case.'" § 665. The parties entitled to appear before the commissioner. In general, all parties interested in the matter to be investi- gated by the commissioner are entitled to attend before him at Stafford v. Jones, 73 W. Va. 299, 80 S. E. 825. The statute provides tlie form of sucli notice, wliicli is hereinafter given. Post, § 1155. 08 W. Va. Code, 1913, e. 80, § S. 69 2 Danioll, Cli. PL and Pr. (6th Am. Ed.), 1171-, Martin v. Soutli Salem Land Co., 94 Va. 28, 26 S. E. 591. In Martin v. South Salem Land Co., supra, the report was excepted to because of tlie insufficiency of the commissioner's notice, and in speak- ing of this matter, tlie court in the course of its ojiinion, says: "If such notice gives the style of the suit, and contains all that is neces- sary to inform the parties of the time and place of taking the ac- count, although the names of the parties are not inserted in it, it will be sufficient." Speaking of this notice, whicli he calls a "warrant," the autlior cf Daniell's l h. PI. and Pr. (in Gth Am. Ed.), at p. 1171, says: "This is done by means of a 'warrant,' which is a mere memorandum, upon a slip of paper, entitled in the cause and signed by the master, appoint- ing a day and hour for all parties concerned to attend him on the matter of tlie reference.'' 'oJMoore v. Bruce, 85 Va. 139, 7 S. E. 195; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 1171, note 3. In M-oore v. Bruce, supra, the court, in the course of its opinion, says: "The notice of three days only, given by commissioner Boil- ing, was too short; and had the de- fendant, JUoore, by his exceptions to the rejiort, shown, or claimed, that the shortness of the notice had pre- vented him from contesting any debt reported, qr from giving his own deposition, or from averting any wrong or injustice done him by the shortness of the notice, this ex- ception would, doubtless, have been sustained; but as he did not, and there is no evidence or appearance of injury caused to Moore by in- adequacy of notice, this is not ground for reversal by this court." 869 Commissioners in Chancery § 666 the time and place appointed to take the account.'^ But it is only as to those matters in which they are interested that they are entitled to attend.'^ The right of a party to appear does not depend upon his being a formal party to the eause.^^ Thus, after a decree for a general account in a creditors' suit, all creditors may appear before the commissioner and present and prove their debts, whether formal parties to the cause or not.''* If a creditor in such a case has prosecuted a claim which has been allowed by the commissioner, such creditor has a right to have the same passed upon by the court without formal pro- ceedings, and if the court rejects such claim the claimant may appeal.'^ If the commissioner improperly refuses to permit a party to attend before him, the matter should be brought to the court's attention by means of a petition, praying for permission to attend before him.'^ § 666. Adjournments by the commissioner. It was formerly a rule of practice that, unless an order of reference was executed or a report made thereon within twelve months from the date of the order, the benefit of it was lost to the party obtaining the order ; " but this rule, intended to speed causes, seems to have fallen into disuse.'* If, at the time set for taking the account, the commissioner deem it necessary or convenient, he may adjourn the taking thereof for a reasonable time on his own motion and without the consent of the par- See Herrell v. Board of Supervisors '* Simmons v. Lyles, 27 Gratt. of Prince William Co., 113 Va. 594, (Va.) 922; The P. & A. Life Ins. Co. 75 S. E. 87. V. Maury, 75 Va. 508. See Arm- See as to the notice to be given by strong, Crislip, Bay & Co. v. Pain- the commissioner, to whom the ter, 75 W. Va. 393, 83 S. E. 1027. cause has been referred, what is said ''o Wilson v. Carrico, 50 W. Va. by Green, J., in Livesay v. Team- 336, 40 S. E. 439. ster, 21 W. Va. at p. 100. 70 2 Daniel], Ch. PI. and Pr. (Gth 712 Daniell, C.i. PI. and Pr. (6th Am. Ed.), 1174. Am. Ed.), 1173; 1 Whitehouse, Eq. "Yates v. Stuart, 39 W. Va. Prac, § 359. 124, 141, 19 S. E., at p. 429. 72 Idem. 78 Idem. 73 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 1175. § 667 Equity Procedure 870 ties;-''' and it is provided by statute in tlie Virginias^" that a commissioner may adjourn liis proceedings from time to time after tlie day to wiiicli the notice was given (without any new notice), until his report is completed. As stated by Mr. Barton, "this leaves the matter largely to the commissioner, and the court of appeals has declared that he has much latitude of dis- cretion in granting continuances of proceedings before him, and the court whose order he is executing will not overrule his ac- tion in that respect unless it is plainly erroneous — still less will an appellate court reverse a decree for that cause; and in the absence of objections to such adjournments in the court below, and where it does not appear affirmatively that they were irreg- ular, the cause will not be reversed on that account."*'^ While the matter of adjournment rests iia the sound discretion of the commissioner, nevertheless if an adjournment be improperly refused when requested, the report will be set aside.^^ § 667. The introduction of evidence before the commissioner. Witnesses may be summoned and required to attend and give evidence before a commissioner, as provided by statute in the Virgiiiias.^^ The summons may be issued by the commissioner, or by the clerk of the circuit court of the county in which the attendance of the witnesses is desired. ^^ The evidence is usually taken in the form of depositions signed by the witnesses. ^^ and 79 17 Enc. PI. and Pr., 1027, citing §§25, 27; Va. Corle, 1(104. §§3352, Eickards v. Patterson, 5 Har. 3354. (Del.) 23.5: Perkins v. Berry, 103 84 W. Va. Code. 1013, c. 130, N. C. 131, n S. E. 621; Canipau v. §25: Va. Code, 1004, §33.52. Brown, 48 Micli. 145, 11 N. W. As to liow attendance of witness 845; Bx parte Putter, 3 Hill (N. may be compelled, see W. Va. Code, Y.) 467: 1 K. Y. Leg. Obs. 178. 1013. c. 130, §27; Va. Code, 1004, 80 W. Va. Code, 1013, c. 120, § 7; § 3.354. Va. Code, 1004, §3223. sr, q Bart, Cb. Pr. (2d FA.), 600. 81 2 Bart., Cb. Pr. (2d Ed.), 690. In We.st Virginia, if tbe depoai- 82 Forbes v. Frary, 2 Jobns. Cas. tions are properly certified, tbe !N. Y.) 224, 1 L. Ed. 405. signature of tbe witness is not 83 W. Va. Code, 1913, c. 130, necessary. W. Va. Code. 1913, c. 130, § 33. 871 Commissioners in Chancert §667 it is said they may be examined viva voce, the parties' to the suit being , present in person or by counsel, and not objecting to such a course.^^ In Virginia, when directed by the decree or requested by any party in interest, the commissioner must return with his report the evidence upon which his finding is based,"' and when so directed or requested to return the evi- dence, from the very nature of the case, a commissioner would be under the necessity of reducing all the oral testimony to writing. In West Virginia, a commissioner is now required to 88 Idem, citing Story v. Living- ston, 13 Peters (U. sf) 359, 10 L. Ed. 200; MattliewH on Commission- ers, p. 61, notes. snVilliama v. Clark, 93 Va. 600, 25 S. E. 1013. In the course of its opinion in this case the court says: "Gen- erally, a party who desires that the evidence, or any part thereof, upon which the commissioner founds his report, should be returned with it, should request him to do so before the report is filed, unless the decree or decrees under which he is act- ing directs it. But in a case like this, where it docs not apjicar that the commissioner had notified the parties when his report would he filed, we see no objection to his re- turning the evidence to the court at any time before the case is heard, when requested by any party to do so: at least, the parties are entitled to have the evidence re- ttirned so far as it is necessary to enable the court to pass upon ex- ceptions taken to the report, and the court should direct it to be done upon the motion of any party interested, unless the application has been unreasonably delayed. In this case all the evidence in the hands of the commissioner had been returned, and no good could have resulted from having an order made to do what had already been done. "Although the evidence, so far as it was in the possession of tlie com- missioner, had been returned to the court, the ease was not in a condi- tion for the court to pass upon the exceptions to the commissioner's re- port without running the risk of doing injustice to one or the other of the parties. If it disposed of the exceptions without considering the evidence, it must presume that the debts reported were properly proved, and render a decree against the ap- pellants therefor, except in so far as tlie report on its face showed that they were not valid claims. On the other hand, if it considered the evidence returned by the com- missioner as all the evidence that was before him, it might have to reject claims, the evidence in whole or in part to establish which had been lost, although they had been fully proved. Under these circum- stances, the proper course, and the one least likely to do injustice, would have been to recommit the re- port as to the items excepted to." See also. Holt v. Taylor, 43 W. Va. 153, 27 S. E. 320. §668 Equity Procedure 872 return with his report all the evidence taken upon his execution of the order of reference,^* as well as the exceptions, if any, taken to the report.*^ Hence, in every case, it follows that in West Virginia the oral evidence must be reduced to writing.^" § 668. The introduction of evidence before the commissioner further considered. Under the regular chancery practice, the examination of the witness is generally by written questions or interrogatories pro- pounded to him by the commissioner or in the commissioner's presence by the party or his counsel.^' While the statute pro- vides that a stenographer may be employed to take the evidence before a commissioner, j^^t neither a circuit court nor the judge thereof in vacation is authorized, under the statute providing for the employment of shorthand reporters in the circuit courts, to employ or authorize the employment of such reporter before 88 W. Va. Code, 1013, e. 120, §7. 8i) Idem. 90 The rule in West Virginia as to the return of tlie evidence hy a commiasioner waa formerly otlier- wise tlian as stated in tlie text. Thus, in Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. 250, decided in April, 1892, the practice then obtaining was declared to be as follows: "The evidence taken be- fore a commissioner in chancery, and upon which he bases his report, does not become a part of such re- port unless exceptions are taken during the period when the report lies in his office, and he has sent up the evidence upon which the excep- tions are based; or he may, of his own motion, where he has a doubt as to the weight of testimony upon a particular point, send up the evi- dence upon that point; but, in either event, the commissioner him- self must certify that he has sent up the evidence in such manner as to make it manifest by the report itself that the evidence has been sent up. But any party may ex- cept to such report at the first term of the court to which it is re- turned, or, by leave of court, after said term; and there can be no doubt that the court may, on its own advice, or on motion of a party, direct the evidence to be sent up; but this is a matter within its own discretion, and the appellate court will not interfere with its exercise of such discretion unless it plainly appear that manifest injustice and injury have resulted." See also as to this matter, Thomp- son v. Catlett, 24 W. Va. 524; Lynch v. Henry, 25 \V. Va. 416; Chapman v. McMillan, 27 W. Va. 220; Ward v. Ward, 40 W. Va. 611, 21 S. E. 746, 52 Am. St. Kep. 911. SI 17 Enc. PI. and Pr., 1028, 1029, and the authorities there cited; 2 Daniell, Ch. PI. and Pr. {6th Am. Ed.), 1180 et seq., and notes. The 873 Commissioners in Chancery §669 a commissioner in executing an order or decree of reference.*^ The commissioner is governed by tlie ordinary rules of evidence that obtain in the examination of viritnesses in court, and he should receive and exclude evidence as if the hearing were be- fore the court, '^ but not by the technical rules which strictly apply in the trial of jury eases.'* The papers in the cause, and also all such documentary proof as any party may lay be- fore the commissioner, constitute parts of the evidence upon which the commissioner must base his report ; '^ and by virtue of statute, power is given the court or judge to compel the production of documents.'" § 669. The rights of the parties as to the establishment and defense of claims before the commissioner. The parties should use reasonable diligence in presenting their evidence for the establishment of their demands or the modern method is to proceed by verbal examination of the witnesses, the whole proceeding being recorded by a stenographer in stenographic notes, which notes are transcribed by the stenographer and certified by the commissioner as the evidence upon the hearing before the com- missioner. See W. Va. Code, 1913, c. 130, § 33. 92 W. Va. Code,. 1913, c. 130, § 33; Weigand v. Alliance Supply Co., ii W. Va. 133, 28 S. E. 803. 93 Smith V. Althus, 11 Ves. Jr. 564; Pardidge v. Ryan, 134 III. 247, 25 N. E. 627 ; Gibson v. Trow- bridge, etc., Co., 96 Ala. 357, 11 So. 365. It is suggested that the safer and better practice would be to object to questions deemed im- proper, permit them to be answered, nnd then have the matter passed upon by proper exceptions to the report. 1 Whitehouse, Eq. Prac, g360. 9* Pardridge v. Ryan, 134 111. 247, 25 N. E. 627. The court may ex- clude all improper testimony taken and base its decree only on the testimony properly admitted. Cecil v. Clark, 69 W. Va. 641, 650-651, 72 S. E. 737. See generally as to the com- petency of witnesses and evidence in equity, atitc, §§ 533-579. £>5 2 Bart., Ch. Pr. (2d Ed.), 690. so Idem.; Va. Code, 1904, §3354; W. Va. Code, 1913, c. 130, §27. In a suit involving an accounting before a commissioner of the profits of a salt works by a suit brought by the assignees of the lessees there- of, "the court may require said as- signees to produce before the com- missioner, on oath, all contracts in their possession or power to pro- duce, by which leases of said salt property were made by them, or privileges granted to others to man- ufacture salt during said period, 5 669 Equity Procedure 874 defeat of those of others, as evidenee taken after the report of the commissioner affecting his findings will not ordinarily be considered by the court.'' The parties may examine and cross- and all books and accounts and papers in tlieir possession or power, showing the quantity of salt manu- factured during said period, and delivered to them by their sub- lessees, or those to whom such priv- ileges were granted under such contract." Stuart v. White, 25 Gratt. (Va.) 300. In taking an account between partners, the production of the part- nership books will be compelled. 15 Fnc. PI. and Pr., 1098; idem. Vol. 6, p. 728. "Vouchers which can not be pro- duced on the new settlement, upon a bill to surcharge and falsify a for- mer settlement, may he presumed to have existed ; and in every such case the onus probandi is thrown on the adverse party, and this rule should be strictly adhered to, when there has been great lapse of time. 2 Matth. Dig. 184, note; Burwell V. Anderson, 3 Leigh 353." Camp- bell V. White, 14 W. Va. 122, 123. When partnership accounts are referred to a, commissioner, the court will rule the parties to pro- duce before him any books and papers which may relate- to the partnership, but will direct the commissioner to disregard such parts as relate to the private af- fairs of either party. Calloway v. Tate, 1 IT. & M. (Va.) 9. In Seabright v. Seabright, 28 W. Va. 412, the court lays down the following as the practice in certain co\irts before the commissioner in a suit to surcharge and falsify the accounts of a fiduciary: "If the plaintiff does not wish to be con- fined to those items of surcharge and falsification named in the bill and the errors on the face of the rx partf settlement, he ought prop- erly to file with the commissioner a written specification of any addi- tional items of surcharge or falsi- fication, on which he proposes to rely, so as to give the personal rep- resentative information as to all the items of the esc parte settle- ment, which it is proposed to sur- chai-ge or falsify. The personal rep- resentative need file no written denial of these grounds of objec- tion alleged there by the plaintiff; but they should be regarded by the commissioner as denied by him, un- less he admits their justice. In like manner the personal representative should be permitted by a written statement to surcharge or falsify the ex parte settlement, and it should be regarded, just as the writ- ten specification of errors filed with the commissioner by the plaintiff is regarded." See also, Davis \ . Morriss, 76 Va. 34; Chapman v. Shepherd, 2-t Gratt. (Va.) 377. 97 Buster v. Holland, 27 W. Va. 510; Richardson v. Duble, 33 Gratt. (Va.) 730; Trevelyan v. Lofft, 83 Va. 141, 1 S. E. 901; Corey A. Moore, 86 Va. 721, 11 S. E. 114; State V. Stepp, 63 W. Va. 254, 59 S. E. 1068. "The vendee claims a credit for payment vipon and set-off against the purchase monej' ; and a commis- sioner is directed to state an ao- 875 Commissioners in Chancery § 670 examine witnesses in the usual manner,'^ their testimony being reduced to writing as hereinbefore shown, "^ being confined, of course, to the matters in issue before the commissioner, and one creditor may contest the validity of the debt of another.^"" § 670. The report of the commissioner and its return. It is provided by statute in the Virginias that with his report the commissioner shall return the decrees, orders and notices under which he aeted.^"^ The report should be addressed to the court or judge directing the account, followed by the style of the cause, referring to the order or decree of reference, and then stating the giving or service of the notice, together with the manner of its service.^"^ The decree may then be copied into the report, ^"^ or the copy delivered to the commissioner may be attached to and made part of the report. He shall not copy in his report any papers ; and if there has been a previous account or report, he shall not copy it into his report,^"^ *ex- cept so far as the same may be necessary to make a complete account and report in accordance with the decree of reference entered in the cause.f "^ If the commissioner improperly copy count of them, but he contuma- lied on as matter of defense in the ciously refuses to present his Virginias, see ante, § 378, and vouchers and evidence before the Hogg, Eq. Princ, § 462. commissioner, but when the report See also, Woodyard v. Polsley, 14 is returned, filed exceptions to it. W. Va. 211: Barbour v. Tompkins, Though it is probable he may be 31 W. Va. 410, 7 S. E. 1. entitled to some credits not allowed Joi w. Va. Code, 1013, c. 120, § 8: him, yet having refused to submit Va. Code, 11)04, § 3324 ; Holt v. them to the commissioner where Holt, 37 W. Va. 305, 16 S. E. 675. they might have been properly in- 102 See 2 Bart., Ch. Pr. (2nd vestigated they will not be allowed." Ed.), 603. Peers v. Barnett, 12 Gratt. (Va.) 103 Mem. 410. "•* Thus far the statutes in Vir- S8 Ante, § 668, and authorities ginia and West Virginia are identi- there cited. cal. See statute, as referred to un- ^e Ante, §§ 667, 668. der the first citation to this section. 100 Atkinson v. Solenberger, 112 "•'^ From the * to t the statute of Va. 667, 72 S. E. 727; Feamster v. Virginia differs from that in West Withrow 9 W. Va. 296. Virginia in that it permits the com- As to the extent to which the missioner to take the previous ac- statute of limitations may be re- count as the basis of his report, § 671 Equity Procedure 8<6 anything into his report, it will be expunged at his costs, op the application of either party; and if, on account of his negli- gence or misconduct, a report be recommitted, he shall bear the costs occasioned thereby."" In West Virginia, the commissioner shall return with his report the exceptions, if any, taken there- to, and shall submit such remarks upon the exceptions as he may deem pertinent. ^"^ § 671. The report of the commissioner and its return further considered. The report mnst contain the commissioner's findings and con- elusions, in conformity to the decree or order of reference, in such manner that the court may act intelligently upon it and determine the rights of the parties by its decree T)ased there- Q^ 108 rpjjg report, of course, must be in writing,^"^ must be signed by the commissioner,^^" and must have his certificate under oath attached thereto, of the fees and the time actually and necessarily employed by the commissioner in making up his xeport.^^^ In West Yirgima, upon the completion of his report, the commissioner shall give notice of the fact to all attorneys who appear of record in the cause, and thereafter, unless other- wise ordered by the court or agreed by the parties, he shall retain the report and the evidence ten days for the examina- eorreet the errors and supply the W. Va. Code, 101."?. c. 1.37, §5; defects thereof by an additional Va. Code, liH)4, § 3503. statement. "A commissioner may authorize 106 W. Va. Code, 1913, u. 129, §8; any person to write his report at Va. Code, 1904, § 3324. his dictation and under liis super- ior W. Va. Code, 1913, c. 129, § 7. vision. It is not essential that It 108 17 Enc. PI. and Pr., 1033, and be in his own handwriting." O'Neil notes; 2 Bart., Ch. Pr. (2nd Ed.), v. Taylor, 59 \\. Va. 370, 53 S. E. 694; 2 Daniell, Ch. PI. and Pr. (6th 471. But see Mountain Lake Land Am. Ed.), 1294 et seq., and notes; Co. v. Blair, 109 Va. 147, 63 S. Lang V. Brown, 21 Ala. 179, 56 Am. E. 751, to the e(Tect tliat an agent Dec. 244. of a party to the cause should not -1^ 17 Enc. PI. and Pr., 1034. be allowed to take part in the prep- i'io Idem. aration of the report. Ill Weigand v. Alliance Supply As to the return of the evidence Co.. 44 W. Va. 133, 28 S. B. 803; with the commissioner's report, see ante, § 667. 877 Commissioners in Chancery § 672 tion of the parties interested."^ The notice here required may be given verbally, or in writing, and if the attorney be a non- resident of the county wherein the cause is pending, the notice may be sent to him by due course of mail, and the commis- sioner shall certify in his report the time and manner of giving such notice.^^' In Virginia^ the report may be filed in the clerk's ofi&ce at any time after its completion.^^* § 672. The report of the commissioner and its return further considered. "On questions of fact before him, the commissioner must state the conclusion reached by him, and not the circumstances, leaving the court to draw its own conclusions.""^ If the evi- dence before the commissioner raise such a conflict that the commissioner can not determine the fact in question with any degree of certainty, but the evidence be sufficient to create a presumption one way or the other, his finding should be on the side of the presumption.^^* He may qualify his finding with such doubts as he may feel, but his inclination should be given one way or the other,^^'' although he is not bound to state infer- ences of law arising from the facts before him.^^^ And it is held, in Childs v. Hurd,^^^ that "if a commissioner fails en- tirely to report with reference to any of the matter referred to him, the court should refer the matter to him again to be re- ported upon, and this should be done, though no one except to such report. No one's right can be regarded as abandoned or prejudiced by his failure to except to such report." "In stat- us w. Va. Code, 1913, c. 129, §7. and Pr., Vol. 2, p. 1298; De Tre- See Clark v. Clark, 70 W. Va. 428, ville v. Ellis, 1 Bailey's Eq. (S. C), 74 S. E. 234. 35, 21 Am. Deo. 518. See also, 113 See same citations. But the Crim v. Post, 41 W. Va. 397, 23 fact that the commissioner faife to S. E. 613. state whether he gave notice per- 116 2 Daniell, Ch. PI. and Pr. (6th sonally or by mail will not make Am. Ed.), 1299. erroneous a final decree entered H' Crim v. Post, 41 W. Va. 397, upon the report. Bank of Marlin- 23 S. E. 613. ton V. Pocahontas Development Co., "s 2 Daniell, Ch. PI. and Pr. (6th 106 S. E. 881 (W. Va. 1921). Am. Ed.), 1299. 114 Va. Code, 1904, § 3323. "9 32 W. Va. 66, 93 S. E. 362. 116 2 Bart., Ch. Pr. (2nd Ed.), See King v. Burdett, 44 W. Va. 561, 694, 695, citing Daniell, Ch. PI. 29 S. B. 1010. § 673 Equity Proceduee 878 ing debts which are liens upon the property, the commissioner should divide them into classes according to priorities, giving also the nature of the lien; and in the absence of any proof to the contrary in stating the different debts secured by a deed of trust, he should report the amoants as they are stated in the deed; but the deed of trust is not conclusive either of the amount of the debt or of the person to whom it is due. ' ' ^^^ And a commissioner, to whom a cause is referred to settle large and intricate accounts, should itemize his findings as to the account, and not simply return an aggregation of items in accordance with his conclusions. ■'^■^ §673. When a cause may be heard upon a commissioner's report. In West Virginia, a cause may be heard upon a commission- er's report at any time after it has been returned, and the court, upon good cause shown by any party in interest, may hear a cause upon such report, though returned after the com- mencement of the term at which the hearing is desired, but in such latter case the court may require the party desiring the hearing to give reasonable notice to the opposite party or his attorney.i^^ ^ report must lie in the commissioner's office the ten days required by statute in West Virginia before it is re- turned to the clerk's office,'-^' unless this requirement of the 120 2 Bart., Ch. Pr. (2ntl Ed.), duly notified of the plaeo of deposit 696. and Imving convenient access to it. 121 Dewing v. Hutton, 40 W. Va. After thus remaining where the 521, 21 S. E. 780. commissioner placed it, it was, after 122 w. Va. Code, 191.3, c. 120, § 9. the lapse of nine days, excluding 123 Smith V. Brown, 44 W. Va. Sunday, marked as filed by the 342, 30 S. E. 160. clerk of the court with whom it In this case, a commissioner resi- was lodged. The court of appeals, dent outside of the county in which speaking througli JlcWhorter, J., as the cause was pending was selected to the filing of the report before bv the parties, and upon the com- the lapse of the necessary ten days, pletion of the report it was placed says: "The defendants, having in the clerk's office of the latter filed exceptions before the report county, where it remained nine days was filed in the clerk's office, and excluding Sunday, all parties being asked leave to file other exceptions 879 Commissioners in Chancery §673 law be in some manner waived.-'^^* In Virginia, a cause may be lieard upon a commissioner's report after it shall have been returned ten days;^^^ and if the report be under an order recommitting a former report, it may be heard without waiting the ten days.^^^ And the cause may be heard upon the report at any time after ten days, even though returned during the term at which it is heard.^^^ during- the September term before the submission of tiie cause, must be held to have waived their right to except because the report was not held full ten days before filing; and the defendants, having after- wards, before the hearing, which did not take place until the second term after the filing of tlie report, filed many and elaborate exceptions, and having all the time and oppor- tunity their interests could require, have no cause of complaint in that regard." See Clark v. Clark, 70 W. Va. 428, 74 S. E. 234. The report when returned must be filed in the clerk's oll'ice witli the clerk. Stewart v. Crane, R7 Ga. 328, 13 S. E. 552. 124 See same citations; Sandy v. Ranrlall, 20 \^'. Va. 244. "An objection to a report of a commissioner, upon the ground that the report was not completed and filed the number of days required by the statute before the commence- ment of the term at which the cause is lieard, and on account of which no exception is filed or objection made in the circuit court, will be held to have been waived at the hearing, and can not be taken in this court for the first time." Sansly Y. Bandall, supra. 1^= Va. Code, 1904, § 3325. In Armstrong v. Pitts, 13 Gratt. (Va.) 235, the cause was heard upon the report of a com.nissioner which had not been returned for the legal period, and the court held that, the decree being interlocutory, the error should have been corrected upon an application to the court below, and that it could not be made ground of appeal, unless the court below refused to make the correction. Where a cause is referred to a commissioner to report the evidence as to the propriety of the sale of infants' lands, his report is not one Avhicli, under Va. Code, 1887, § 3325, should lie ten days witliout being acted on. Lancaster v. Barton, 92 Va. 015, 24 S. E. 251. "Tlie report of a commissioner having been completed en the 10th of April, 1869, and tlie decree made on the 22d of October following, in the absence of anytliing showing the contrary, it will be presumed by the appellate court, that the report and account were returned and acted on according to the require- ments of the statute." Coffman v. Sangston, 21 Gratt. (Va.) 263. i="Va. Code, 1904, §3325; S'trantre v. Strange, 76 Va. 242. i^'' Strange v. Strange, 76 Va. 242. §675 Equity Procedure 880 § 674. The confirmation of a commissioner's report. A commissioner's report is not confirmed except by an ex- press decree of the court.^^^ But the court will confirm it as a matter of course, as to the parties sui juris, at lea&t/^' unless objected to at the hearing of the cause for errors apparent upon its face/'" or unless exceptions are filed to it/'^ or unless the report contain alternative statements leading to different results.^'^ The confirmation of the report settles both the prin- ciples on which the account is stated, and also the sufficiency of the evidence on which it is founded.*"' §675. Objections to a commissioner's report for errors upon the face thereof. If there be error apparent upon the face of a commissioner's report, its confirmation may be objected to on such ground at the hearing, either in the court below or in an appellate court, 128 Ware \. Starkey, SO Va., at p. 198. 129 2 Bart., Ch. Pr. (2d Ed.), 698; 17 Enc. PL and Pr., 1062, 1063. "When a commissioner in a, ease of a creditor's bill is directed by the decree of court to hear proof of debts against the estate of an in- testate, and there are infant de- fendants whose lands are sought to be sold, and the commissioner reports debts or judgment liens against the land, it is the duty of the court to examine the vouchers and evidence upon which the report is based and see if they are prop- erly proven and their existence es- tablished before confirming the report and directing a sale of the realty, whether there were excep- tions filed to the report or not; upon the ground that there was no sufficient evidence before the com- missioner establishing such debts or judgments. And if the court eon- firms such report in the absence of sufficient evidence to establish the existence of such debts or judg- ments, and decrees the sale of the realty, the appellate court will re- verse such decree for that reason.'' Laidley v. Kline, 8 W. Va. 218, 219. See Kester v. Lyon, 40 W. Va. 161, 20 S. E. 933;' Kester v. Hill, 46 W. Va. 744, 34 S. E. 798. 130 Ogle v. Adams, 12 W. Va. 213; Speidel v. Schlosser, 13 W. Va. 686; post, § 675. isiVVyatt V. Thompson, 10 W. Va. 64,') ; Kester v. Lyon, 40 W. Va. 161, 20 S. E. 933; post, §676. 132 Campbell v. White, 14 W. Va. 122. 13S Thompson v. Catlett, 24 \\'. Va. .524. See Kester v. Hill, 46 W. Va. 744, 34 S. E. 798; Bank of Union v. Nickell, 57 W. Va. 57, 01, 62, 49 S. E. 1003. 881 Commissioners in Chancery §675 without excepting to the report."* And to show such error, recourse may be had to the pleadings and their' exhibits, pro- vided it be impossible that the alleged error could have been affected by extrinsic evidence."^ Thus, "where a commission- er's report shows that the interest on 'a debt audited therein is calculated at six per cent., and the pleadings in the cause show that the debt bore nine per cent, interest, and the report is not excepted to, such error may be corrected in the court below oq notice under the statute or by bill of review or by petition for rehearing in a proper case or upon appeal in the Appellate Court." ^'^ But "where one commissioner's report shows error on its face in the calculation of interest, and it is set aside, and another report is made, which shows the balance of the debt to the time of making the report 'after allowing all credits,' and no exception is taken to the last report, the Appellate C6urt can not go back of the last report to consider errors apparent on the face of the first. ""^ is^Kester v. Lyon, 40 W. Va. 161, 20 S. E. 0,33; Bank v. Shirley, 26 W. Va. ^RS; Nutt v. Summers, 78 Va. 164; Cralle v. Cralle, 84 Va. 108, 6 S. E. 12; Evans v. Shroyer, 22 \Y. Va. 581; MeCarty V. ciialfant, 14 W. Va. 531; Bank of Union v. Nickell, 57 W. Va. 57, 40 S. E. 1003; Ilaymotid v. Mnrpliy, 65 W. Va. 616, 64 S. E. 855; Hous- ton Lumber Co. v. Wetzel &, T. Ry. Co., 60 W. Va, 682, 72 S. E. 780; Lewis, Hubbard & Co. v. Toney, 76 W. Va. 80, 85 S. E. 30. "This is the well-settled law of this state, having been decided time and again.'' Bank of Union v. Nickell, supra. "An administrator fails to settle his accounts in the time required by the statute, but is nevertheless allowed a commission during the time of such failure by a commis- sioner ; though no exception is taken thereto in the court below, it may be objected to in the appellate court." Estill V. McClintic, 11 W. Va. 390. No exception to a commissioner's report in either the circuit or su- preme court is necessarj' as to error apparent on its face. Windon v. Stewart, 48 "VV. Va. 488, 37 S. E. 603. 135 Kester v. Lyon, 40 W. Va. 161, 20 S. E. 033; Bank v. Shirley, 26 W. Va. 563; Haymond v. Murphy, 65 W. Va. 616, 64 S. E. 855; Welch Lumber Co. v. Pageton Lumber Co., 69 W. Va. 282, 71 S. E. 282; Houston Lumber Co. v. Wetzel & T. Ry. Co., 60 W. Va. 682, 72 S. E. 786. ""Bank v. Shirley, 26 W, Va. 563. 137 Idem. 676 Equity Procedure 882 § 676. Exceptions to a commissioner's report and when nec- essary. Errors in the report of a commissioner which do not appear upon the face thereof, and which arise from extrinsic evidence, or in any manner depend upon such evidence, can not be reached or availed of on mere objection, either at the hearing of the cause in the court below, or in an appellate court ; ■'^^ but to have such errors considered at all, either upon the origi- nal hearing or upon an appeal, they must be made the ground of specific exceptions made to the report in the court below. ■'''^ The practice as thus stated is well settled, and any other rule would operate as a surprise to litigants and frequently result in great mischief and injustice.^'"' Exceptions to a commis- sioner's report partake of the nature of special demurrers, and must designate and point out the errors complained of with reasonable certainty, so as to direct the attention of the court specifically to them,^''^ and should be in writing and signed by 138 Morrison v. Householder, 73 Ya. 627; Simmons v. Simmons, .33 Gratt. (Va.) 451; Asliby v. Bell, SO Va. 811; KicUels v. Kane, 82 Va. 300; Cralle v. Cralle, 84 Va. 198, 6 S. E. 12; Sandy v. Randall, 20 W. Va. 244; McCarty v. Clialfant, 14 W. Va. 531 ; Haddock v. Skinker, 93 Va. 470, 25 S. E. 535: Rust v. Rust, 17 W. Va. 901; Bank of Union v. Xickell, 57 W. Va. 57, 49 S. E. 1003; Welch Lumber Co. v. Pageton Lumber Co., 69 W. Va. 282, 71 S. E. 282. But the rule does not apply where objection is made to a default decree based upon a commissioner's report. Armstrong;, Crislip, Day & Co. v. Painter, 75 W. Va. 393^ 399, 83 S. E. 1027. See Southern Ry. Co. v. Glenn's Admr., 98 Va. 309, 36 S. E. 395. 139 Simmons v. Simmons, 33 Gratt. (Va.l 451; Wimbish v. Raw- lins, 7G Va. 48; Nickels v. Kane, 82 Va. 300; MeComb v. McDonald, 82 Va. 903, 5 S. E. 558; Evans v. Shroyer, 22 W. Va. 581; Saunders V. Prunty, 89 Va. 921, 17 S. E. 231; Long V. Willis, 50 W. Va. 34], 40 S. E. 340. See additional cases cited in preceding note and two fol- lowing notes. "0 2 Rob., Prae. (Old Ed.), 383, and cases there cited ; Peters v. Nev- ille, 26 Gratt. (Va.) 549; Cole v. Cole, 28 Gratt. (Va.) 365, 370; Sim- mons V. Simmons, 33 Gratt. (Va.) 451. "1 Chapman v. P. & S. R. Co., 18 W. Va. 185; McCarty v. Chalfant, 14 W. Va. 531; Crislip v. Cain. 10 W. Va. 438 ; Kester v. Lyon, 40 W. Va. 161, 20 S. E. 033; Bartlett & Stancliff v. Boyles, 66 W. Va. 327, 66 S. E. 474; First Nat. Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 56 S. E. 158; Eeid's 883 Commissioners in Chancery §676 counsel. 1"^ If the item or part of the report excepted to is not thus stated in the exceptions, they will be overruled.^^' When exceptions have been made to the report, the parts not excepted to are admitted to be correct, not only as regards the principles, Admr. V. Windsor, 111 Va. 825, 69 S. E. 110; Pittsburgh Steel Pro- ducts Co. V. Huntington Masonic Temple, 81 W. Va. 222, 94 S. E. 127; Watson v. Brunner, 105 S. E. 97 (Va. 1920). See W. Va. Code, 1913, c. 129, § 7. Tn Moffit V. Hanner, 1.54 111. 649, 39 N". E. 474, the court, in the course of its opinion, says: "The exceptions are tlie pleadings to the items of an account, and must be specific and not general, as they can then be reviewed by the appellate court or supreme court. Hosier v. Norton, 83 111. 519; Quayle v. Guild, 83 III. 553; Moss v. MeCall, 75 111. 190; Patten v. Patten, 75 111. 446; Steere v. Hoagland, 39 111. 264; Bressler v. MeCune, 56 III 475; Einer v. Touslee, 62 111. 266; Groch V Stenger, 65 Jll. 481; Du- bourg de St. Colombe v. U. S., 7 Pet. 625." "An exception to a report of com- missioner, in general terms, that the commissioner lias, under the proofs in the cause, found too small an amount in favor of the exceptor, and that the evidence taken in the cause shows him to be entitled to a much larger sum of money than that allowed by the commissioner, wlien a large amount of conflicting evidence lias been taken thereon, is too general and indefinite to war- rant the coiirt in decreeing a greater and different sum to except- ant, entirely disregarding the report of the commissioner." Poling v. Huffman, 48 W. Va. 639, 37 S. E. 526. See Bartlett & Stancliff v, Bovles, supra. See Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862. n=2 Bart., Ch. .Pr. (2nd Ed.), 705. "3 Chapman v. P. & S. R. Co., 18 W. Va. 185; McCarty v. Chal- fant, 14 W. Va. 531; Hartley v. Roffe, 12 W. Va. 401; Bartlett & Stancliff v. Boyles, 66 W. Va. 327, 66 S. E. 474. In Hartley v. Roffe, supra, the exceptions were to a report of sale, and the second exception thereto was in these words: "For other reasons apparent upon the face of the report." The court, in its opin- ion, as to this exception, says: "This exception is too general. An exception to the report of sale of a commissioner, for defects on the face of the report, ought to be so specific, as to direct the mind of the court to the particular defect or omission, upon which the exceptor relies, unless the report be so sub- stantially defective on its face, as to require the court on its own mo- tion, in the absence of exceptions, to set aside the report. If the ap- pellant had excepted to said report, because the commissioner had not advertised the time and place of sale as required by the decree, or had not posted the advertisement of sale as directed by the decree of sale, and thus put the fact or facts in issue, then the mind of the court would have been directed to the cause of complaint, as well also as the parties in interest, and the cause of complaint, if any, might readily be removed by supplying the apparent omission or deficiency." 676 Equity Procedure 884 but as to the evidence upon which they are founded.^^* If, however, it should occur that the court is not satisfied with the report as to matters not excepted to, which might be affected by evidence aliunde, instead of remodelling the account upoa its own view of the evidence, the report should be recommitted with instructions indicating the court's opinion, so that the re- spective parties may be afforded an opportunity of meeting the objection thus indicated."^ If there be any doubt whatever as to whether an error in the report be apparent on the face thereof, it is always advisable to except to the report. ^*^ See also, Crislip v. Cain, 10 W. Ya. 438: Gibert v. Washington, etc., E. Co., 33 Gratt. (Va.) at p. 613; Fisher v. MeKulty, 30 W. Va. 186, 3 S. E. 593. 144 See cases cited in note 141, svpra; Ward v. Ward, 40 W. Va. Oil, 21 S. E. 746, 2!) L. R. A. 449, 52 Am. St. Rep. 911; Bank of Union Y. Kicl, S. E. 927; was insuflieient to sustain the find- Holt v. Taylor, 43 W. Va. 153, 27 ings of the commissioner, and it S. E. 320 ; State v. Kinc, 64 W. appears that other testimony might Va. 546, 63 S. E. 468; Deepwater have been adduced before the com- Ry. Co. v. Honaker, 66 W. Va. 136, missioner upon the questions sub- 66 S. E. 104, 27 L. E. A. (N.S.) mitted, will reverse the decree eon- 388. See Highland v. Ice, 75 W. firming said report with directions Va. 513, 84 S. E. 252. 891 CoMMissioiTERs IN Chancert § 681 conflict of evidence, unless in a case of palpable error or mis- take."' It was long the rule in Virginia,^'"' as shown by numerous decisions, that the report of a commissioner based iipon a con- flict in the evidence would be confirmed by the court, unless it was made to appear that he had committed palpable error or mistake in reaching his conclusions.^'^ And upon a confirma- tion of the report in such a ease, the same rule obtained in the appellate court.^'^ Following the reason for the rule as given in Bowers v. Bowers, the Virginia court felt constrained from a sheer sense of necessity to adopt the commissioner's report upon matters of fact deduced from a conflict of oral testi- mony.-''^ This is the rule which generally obtains in courts of equity,^'* and because of its uniformity and great practicabil- ity, being the one in a large majority of cases M^hich is most likely to promote the ends of justice, it ought not to be changed, and is the rule which will probably continue to obtain generally in courts of equity in those jurisdictions where the aid of a commissioner is invoked in the ascertainment of mat- ters of fact. But if the commissioner reports a fact improperly, where there is no conflict in the evidence, or where there is no competent evidence to support it, the court will disregard his finding, and enter a decree in accordance with the pleadings and proper proofs in the cause.^'^ i«s Bowers t. Bowers, 29 Gratt. i^= Magarity v. Sliipman. 82 Va. (Va.) 697, citing Izard v. Bodine, 784, 1 S. E. ioO; Mayarity v. Sue 1 Stock. Ch. R. 310, 362; Smiley cop's Adnir., 90 Va. 563, 19 S. E. V. Smiley's Admx., 112 Va. 490, 71 260. S. E. 532. i^s Stuart v. Hendricks, 80 Va. I'o Since the decision of Bowers 601. T. Bowers, 29 Gratt. (Va.) 697. "* 2 Daniell, Ch. PI. and Pr. (6th I'l Porter v. Young, 85 Va. 49, 6 Am. Ed.), 1298-1300, and the great S. E. 803; Stimpson v. Bishop, 82 array of cases cited in the notes; Va. 190; Magarity v. Shipman, 82 Adams, Eq. (8th Ed.), 385, 386, Va. 784, 1 S. E. 100; Bowden v. note 4. Parish, 86 Va. 67, P S. E. 616, 19 i'^ Armentrout v. Shafer, 89 Va. Am. St. Eep. 873; Douglass v. 569, 16 S. E. 726; Porter v. Chris- Spoor, 89 Va. 729, 15 S. E. 550; tian, 88 Va. 730, 14 S. E. 183. Haymond v. Camden, 48 W. Va., t63, 37 S. E. 642. [30] § 683 Equity Procedure 892 The rule as to the effect of the findings of a commissioner upon a conflict of evidence, as just stated in this section as having for some time obtained in Virginia, has been explained and qualified in a well-considered case^'^ decided in that state, and the principle laid down that "the report of a commissioner is always) subject to review by the court, and only to be ac- cepted as conclusive, when the testimony, though conflicting, is evenly balanced, and the report is supported by the testimony of competent and unimpeached witnesses." § 682. The report when it contains alternative statements. If a commissioner in taking an account has a doubt as to the allowance of disputed items to be by him reported on, he may direct the court's attention to the matter by alternative state- ments leading to different results, and thus leave the court to draw its own conclusions as to which statement shall be con- firmed.^'^ § 683. When the report of a commissioner will be recommitted. It may be laid down as a general rule that where equity and justice between all parties interested in the subject matter of the suit, so that the rights of all may be ascertained and ad- judicated, require it, the court will recommit the report to the same or another commissioner, with proper instructions, that a complete and proper final decree may be entered in the cause.-"-'* Thus, where a reference directs the commissioner to report i76Shipman v. Flctclier, 91 Va. S. E. 140: Jolin Diebold & Sons 473, 22 S. E. 458. Later decisions Stone Co. v. Tatterson, 115 Va. 766, of the Virginia court have adhered 80 S. E. 585 ; Cottrell v. Mathews, more or less consistently to the 120 Va. 847, 92 S. E. 808; Alex- rule announced in the latter case, ander v. Critcher, 121 Va. 723, 94 although some seem to, disclose an S. E. 335. inclination to revert to the older i-?? Campbell %'. White, 14 W. Va. rule. See Dixon v. Paddock, 104 122; Barbour v. Tompkins, 31 W, Va. 387, 51 S. E. 841; iSIountain Va. 410, 7 S. E. 1. Lake Land Co. v. Blair, 109 Va. i" Tavenner v. Barrett, 21 W. 147, 63 S. E. 751; Va. & Ky. By. Va. 656, 684j Carper v. Hawkins, Co. v. Heninger, 110 Va. 301, 67 8 W. Va. 29*1; B. & 0. E. Co. v. S. E. 185; Smiley v. Smiley's Vanderwerker, 44 W. Va. 229, 28 S. Admx., 112 Va. 490, 71 S. E. 532; E. 829; King v. Burdett, 44 W. Howard v. Gose, 112 Va. 552, 72 Va. 561, 29 S. E. 1010; Holt v. 893 Commissioners in Chancery § 683 upon a matter, and lie does not do so, the court will recommit the report without exceptions.^'^ So, in a suit to enforce a judg- ment lien, the defendants alleging that they had acquired title to the property subject to the judgment and that they had paid a prior lien and caused it to be canceled, asking to be subro- gated to the rights of the former owner thereof, the report of the commissioner failing to mention such prior lien, the re- port should be recommitted, to make inquiry concerning the facts alleged by defendants.^^" On a motion to recommit the report of a commissioner in chancery, if the previous neglect, or contumacy, of the party render it proper to overrule his motion so far as it goes to opening the accounts anew, he may, nevertheless, be permitted to show himself entitled to credits not considered by the commissioner, if it appear probable from the evidence, in support of the motion, that he is entitled to such credits.^^i When a commissioner to whom a cause is referred to settle large and intricate accounts, containing many contested items, returns only an aggregation of items in accordance with his Holt, 46 W. Va. 397, 35 S. E. 19; bert, 37 VV. Va. 26, 16 S. E. 447. Yates V. Stuart, 39 W. Va. 124, i:) iso Jones v. Byrnes, 94 Va. 751, S. E. 423; Gapen v. Gapen, 41 W. 27 S. E. 591. Va. 422, 23 S. E. 579 ; Jones v. isi Snickers v. Dorsoy, 2 Munf. Byrne's Exx., 94 Va. 751, 27 S. E. (Va.) 505; Grantham v. Lucas, 24 591; Campbell v. Winston, 2 H. & W. Va. 233. M. (Va.) 10; Williams v. Donaglie, A commissioner must not go be- 1 Eand. (Va.) 300; Clark y. The yond tlie matter referred to him, Hendricks Co., 56 W. Va. 530, 49 and if he does so, his report so far S. E. 455 : Lewis v. Priehard, 'u as refers to that matter is a nullity. W. Va. 542, 50 S. E. 743; Vick v. It has been decided that in such a Ferrell, 76 W. Va. 306, 85 S. E. ease the proper course is not to ex- 549; Howard v. Gose, 112 Va. 552, cept to the master's report, but be- 72 S. E. 140; TurnbuU v. Buford, fore it is confirmed, to apply to the 119 Va. 304, 89 S. E. 233. court that it may be referred back 179 King V. Burdett, 44 W. Va. to the commissioner to review his 561, 29 S. E. 1010; Childa >'. Hiird, report; but that, if no such appli- 32 W. Va. 68, 9 S. E. 362; Ship- cation is made, and the report man v. Fletcher, 83 Va. 349, 2 S. . should be confirmed, the court will E. 198; Schultz v. Hansbrough, 33 pay no attention to it, except ?o Gratt. (Va.) 567; Hyre v. Lam- far as it is warranted by the decree. §683 Equity Procedure 894 conclusions, the report, when excepted to on that ground, will be recommitted to the commissioner, that a properly- itemized statement of such accounts may be made.i*^ And if the find- ings of a commissioner as reported by him are not satisfactory to the court, in the absence of exception to the report or error apparent on the face thereof, it is error for the court at the hearing of the cause to remodel and restate the whole account stated in the report of the commissioner, without reference to the account reported by the commissioner, and in such a ease the report should be recommitted with instructions to the com- missioner based on such principles as in the opinion of the court will relieve the report of error.^^' So it is improper and erroneous for the circuit court, after confirming a commission- er's report without exceptions thereto, to change the priorities of the liens as ascertained and determined by such report, no error of law appearing on the face thereof.^** Ware v. Starkey, 80 Va. 191; White V. Drew, 9 W. Va. 695. A report made while a cause stood dismissed, and before it was rein- stated, will be recommitted. Wil- liamson V. Childers, 4 H. & M. (Va.) 449. When, upon exception to a com- missioner's report, he certifies all the evidence upon which the report is based, and his report is confirmed by the lower court and the evidence upon which it is based made a part of the record, the appellate court, if satisfied that the evidence is in- sufficient to sustain the findings of the commissioner, will reverse the decree confirming said report with directions to recommit the account in order that further testimony may be taken. Holt v. Taylor, 43 W. Va. 153, 27 S. E. 320; Williams v. Clark, 93 Va. 600, 25 S. E. 1013. Likewise, where the commissioner makes erroneous findings in stating an account which is complicated and involves numerous items, the cavise will be referred a second time for the purpose of restating the account. Clark v. The Hendricks Co., 56 W. Va. 530, 49 S. E. 455; Lewis V. Prichard, 57 W. Va. 542, 50 S. E. 743. 182 Dewing v. Hutton, 40 W. Va. 521, 21 S. E. 780. See also, Gapen V. Gapen, 41 W. Va. 422, 23 S. E. 579. 183 Poling V. Huffman, 48 W. Va. 639, 37 S. E. 526. 184 First National Bank v. Simms, 49 W. Va. 442, 38 S. E. 525. The following cases are appended as illustrations of the practice of the reeommital of a commissioner's report : Where the commissioner to whom the taking of accounts has been re- ferred has lost part of the evidence on which his report is founded, the ease should be recommitted to him. 895 Commissioners in Chancery § 685 § 684. When the report of a commissioner may be recommitted further considered. ^ It is stated upon good anthority that "the recommitment must usually be in order to examine into some point put in issue by the pleadings, but when the evidence taken upon the first reference discloses an immoral transaction as the probable basis of the cause, the report may be recommitted in order to ascertain definitely whether there was really just ground for the charge. An order of recommitment must generally be made before the report is confirmed, but even after that is done it has sometimes been permitted when the justice of the case re- quired it ; but s\ich instances are confined to cases of fraud, surprise and mistake, unless, of course, the decree of recom- mitment is entered during the same terra at which the report was confirmed, for then the matter still being in the breast of the court the decree of confirmation may be set aside for any cause deemed just by the court." ■'"^ When a repoi't has been recommitted to a commissioner and again returned to the court, exceptions filed to the former report will ijot be open for con- sideration, unless again made to the report returned xipon the recommitment.^^^ § 685. The effect of an order of reference in a creditors' suit. When an order of reference is made in a creditors' suit com- mitting the cause to a commissioner to report upon the liens and their priorities, such order operates a suspension of all other suits pending for the administration of the debtor's as- Williams v. Clai-k, (13 Va. 690, 2,5 of any of such new and interested S. E. 1013. parties to tlie suit, but the same "Wlien the principal defendant in should he recommitted anew with- a chancery cause dies, and the same out regard to such nnconfirnied re- is revived against his administra- port." Holt v. Holt, 46 W. Va. 397, tor, heirs, sureties, creditors, gran- 35 S. E. 19. tees and donees, and converted into is" 2 Bart., Ch. Pr. {2d Ed.), 706, a general creditors' bill for the pur- 707. pose of settling the estate of such ise Hooper v. Hooper, 29 W. Va. decedent, an unconfirmed commis- 276, 1 S. E. 280; Findley v. Eind- sioner's report, to which numerous ley, 42 W. Va. 372, 26 S. E. 433; exceptions have been filed, can not Kee v. Kee, 2 Gratt. (Va.) 116; be confirmed against the objection Morrison v. Householder, 79 Va. § 685 Equity Procedure 896 sets,'"'" and such order may be entered in the cause first ready for a hearing, though it be not the first suit instituted.^^^ If several suits brought by different creditors to enforce their respective liens are pending, the court will order the proceed- ings in all but one of such suits to be stayed, and v^ill require the several parties to come in under the decree in the one suit, so that only one account of the estate may be necessary.^*^ And if, with knowledge that a creditors' suit is pending and a de- cree of reference made therein, another creditor brings a sepa- rate suit of his own, he will be required to pay the costs of such separate suit,^'" and the pendency of the first suit may be pleaded in bar and dismissal of the second suit.'"'' "But the pendency of an action by a creditor to have the estate of a deceased partner administered for the benefit of separate cred- itors, and in which a decree for an account has not been ren- dered, will not bar an action to administer the partnership property for the benefit of the partnership creditors; and while it is sought to enforce a vendor's lien, a separate suit may be brought for that purpose, where the holder thereof is not a party to the creditors' bill.""' An order of reference does not preclude the prosecution of an action at law already brought, so as to obtain a judgment therein which will entitle its holder to share in the benefits of a decree entered in the creditors' suit."^ 032; Bank v. Shirley, 26 W. Va. Admr. v. Xorfoll^ & W. Ry. Co., 118 .')63; Carskadon v. Minke, idem, 729. y^. 3S8, 87 S. E. 731. BKceptions to the previous report mncj. i rr, may be ignored First Nat. Bank "° Stephenson v. Taverners, 9 of Webster Springs v. McGraw, 85 Gratt. (Va.) 3!)S; Kent v. Cloyd, W. Va. 298, 101 S. E. 474. 30 Gratt. (Va.i .555; Saunders v. isTBilmeyer v. Sherman, 23 W. GrigTs, SI Va. 506. ^'a. 657; Paxton v. Rich, 85 Va. i^T-v -i -n ^ ^o tt t- ^,n 378, 7 S. E. 531, 1 L. R. A. 639: "' ^°'^-^ ''• ^"'^y- "^^ ^^ ■ ^ ^- 513, Stephenson v. Taverners, 9 Gratt. 27 S. E. 268. (Va.) 398; Laidley v. Kline, 23 W. i»= Hogg, Eq. Princ., 007. citing Va. 565; Beverly V. Rhodes, 86 Va Robinson >-. Allen, S5 Va. 721, 8 S. 415, 10 S. E. 572; McClanahan's t^ „.,. „ , , „,. , „' ^^ Admr. V. Norfolk & W. Ry. Co., 118 ^- ■'•'■'• Tnrst^l v. ^^ ishers, 86 Va. Va. 388, 87 S. E. 731. " 892, 11 S. E. 5(),V. Benson v. Snyder, l88Bilmeyer v. Sherman, 23 W. 42 W. Va. 223. 24 S E 880 Va 657; Stephenson V. Taverners, i9s iVxton v. Rieh, 85 Va. 378, 9 Gratt. (Va.) 398; Laidley t. 7 o 17 =qi i t t> a p.,o t> I Kline, 23 W. Va. 565. ^ '^- ^^- 531, 1 L. R. A. 639. But 189 Stephenson v. Taverners, 9 see, Rhodes v. Amsinck & Co., 88 Gratt. (Va.) 398; McClanahan's Md. 345. CHAPTER XXVIII ISSUES OUT OF CHANCEEY § 686. As to the right of a trial by jmy in equity. § 687. When trial by jury matter of right in a court of equity. § 688. The direction of an issue out of chancery upon a conflict in the evidence. § 689. The directing of an issue out of cliancory discretionary with the court. § 690. When the court should direct an issue out of chancery. § 691. When an issue out of chancery should not he directed. § 692. When court may either refer tlie cause to a commissioner or direct an issue to be tried by a jury. § 693. When the court may disregard the verdiit of the jury, and enter a decree contrary thereto. § 694. Tlie issue of devisavit vel rwn. § 69.5. In what court the issue may be tried. § 696. As to the trial of the issue before the jury. § 697. Setting aside the verdict rendered upon an issue out of chancery. § 686. As to the right of a trial by jury in equity. In the absence of an organic law or a statute so providing, a trial by a jury in a court of equity is not a matter of right, in cases of equitable jurisdiction.^ A court of equity may try and determine without a jury any matter of which it has equit- able cognizance, either as the real subject in controversy or as an incident to the main object of the suit.^ Thus, it may deter- mine a mere legal right, as the question of title in a partition suit.' 1 Broderick v. "Rroderick, 2S W. 2 Cecil v. Clark, 44- W. Va. 03fl, Va. 378; Cecil v. Clark, 44 W. Va. 30 S. E. 216 -. Cheuvront v. Horner, 659, 30 S. E. 216; 2 Daniell, Ch. 62 W. Va. 476, 59 S. E. 964. PI. and Pr. (6th Am. Ed.), 1071, s Cecil v. Clark, 44 W. Va. 659, 1072, note 2, citing a long array of 30 S. E. 216. Or the status of a cases. See also, Kobinson v. Allen, hare money demand. Cheuvront v. 85 Va. 721, 8 S. E. 835; Cheiiv- Horner, 62 W. Va. 476, 59 S. E. rent V. Horner, 62 W. Va. 476, 59 904. S. E. 964. Pee State v. Jackson, In West Virginia, in matters of 56 W. Va. 558, 49 S. E. 465. such nature as to give right to trial 897 § 687 Equity Procedure 898 § 687. When trial by jury matter of right in a court of equity. In the Virginias, in a suit brought to establish a will, or to contest its validity, a trial by jury, if demanded by any party interested, is a matter of right.* And in cases of eminent do- main, when a case arises in which it is sought to take private property for public use, where, for any proper cause equity obtains jurisdiction, a reference to a commissioner or a trial by jury to assess the damages will be awarded, if either of the parties to the suit require it.^ So, a plea in abatement of an attachment or a claim of attached property by a third person should be tried by a jury as a matter of right, when demanded by either of the parties to the suit.^ So, upon an injunction to a judgment at law, and for a retrial, an issue or issues should be directed as the nature of the ease may require, so as to render a proper decree with reference to the injunction issued against the judgment.' "Trial by jury is a matter of right under Code, chapter 105, section 18, in a proceeding by the state to sell forfeited land, when conflicting titles to land are to be tried, if there is a controversy of fact dependent on oral evidence, but not where there is no controversy of fact, or where that controversy depends entirely on documentary evi- dence."* by jury undpr the ConstitutioTi, the irJem, §23; Hogg, Eq. Princ, §43, legislature can not give equity juris- p. 76 ; Anderson v. Johnson, 32 diction over them, and deprive the Gratt. iVa.) 558. The record must party of trial by jury against his show affirmatively that a jury was protest. Davis v. Settle, 43 W. Va. waived. Yellow Pine Lumber Co. v. 17, 26 S. E. 557; Grafton & G. Jilays, 81 W. Va. 46, 94 S. E. 42. R. Co. V. Davisson, 45 W. Va. 12, But the court may try the issue so 2!) S E. 1028, 72 Am. St. Rep. 799; far as it depends \ipon documen- State v. udckson, 56 W. Va. 558, 49 tary evidence. Idem. See Lipscomb S. E "(^5. V. Condon, 56 W. Va. 416, 49 S. •iW. Va. Code, 1913, e. 77, §30; E. 392, 67 L. R. A. 670, 107 Am. Va. Code, 1904, § 2542. St. Rep. 938. "Mason v. Harper's Ferry ^ Grafton & G. R. Co. \-. Diivi*- Bridge Co., 17 W. Va. 396. See also, son, 45 W. Va. 12, 29 S. E. 1028, Forsyth v. City of Wheeling, 19 W. 72 Am. St. Rep. 799. Va. 318; Ohio River R. Co. v. Ward, s State v. Jackson, 56 W. A'a. 35 W. Va. 481, 14 S. E. 142. 558, 49 S. E. 465. oW. Va. Code, 1913, e. 106, § 19; 899 Issues Out of Chancery § 689 § 688. The directing of an issue out of chancery upon a con- flict in the evidence. The object of an issue out of chancery, when not directed as a matter of course, is to satisfy the conscience of the chan- cellor.^ Therefore, a court of equity is not bound to direct an issue on the mere ground that the evidence is contradictory, but it may judge of the weight of the evidence, and, if its con- science is satisfied, may decide the case withovit tlie aid of a jury." § 689. The directing of an issue out of chancery discretionary with the court. While a court of equity has the right to ord^r, in a proper case, one or more issues, or any material fact in issue, to be tried by a jury, the matter is discretionary with the court. ^^ It is not, however, a mere arbitrary discretion, but a sound dis- cretion to be exercised upon the principles of reason and jus- tice, one which may be reviewed upon appeal, and the appellate court will determine for itself whether in any case such discre- tion has been properly exercised. ^^ But an appeal will not lie to an order or decree directing an issue unless such order or 9 Pleasants V. Ross, 1 Wash. (Va. ) (Va.) 294; Fishburne v. Furgeson, 156; Nease y. Capehart, 15 W. Va. 84 Va. 87, 4 S. E. 575; Robinson v. 299; Creba v. Jones, 79 Va. 381; Mien, 85 Va. 721, 8 S. E. 835; Slaughter v. Banner, 102 Va. 270, Rohrer v. Travers, 11 W. Va. 146; 46 S. E. 289 ; &tevens v. Duckett, Jarrett v. Jarrett, idem, 584 ; Barth- 107 Va. 17, 57 S. E. 601; Matney olow v. Hoge, 71 W. Va. 427, 76 V. Barnes, 116 Va. 713, 82 S. E. S. E'. 813; Slaughter v. Danner, 102 801. Va. 270, 46 S. E. 289; Stevens v. 10 Hord V. Colbert, 28 Gratt. (Va.) Duckett, 107 Va. 17, 57 S. E. 601; 49; Arnold v. Arnold, 11 W. Va. Goode v. Bryant, 118 Va. 314, 87 449 ; Setzer v. Beale, 19 W. Va. at S. E. 588. The court may direct an p. 289; Robinson v. Allen, 85 Va. issue ea; mero motu. Catron v. 721, 8 S. E. 835; Crebs v. Jones, Norton Hardware Co., 123 Va. 380, 79 Va. 381 ; Stevens v. Duckett, 107 96 S. E. 853. Va. 17, 57 S. E. 601 ; Matney v. 12 Miller v. Wills, 95 Va. 350, 28 Barnes, 116 Va. 713, 82 S. E. 801. S. E. 337; Reed v. Cline, 9 Gratt. But see Hook v. Hook, 126 Va. 249, (Va.) 136; Wise v. Lamb, idem, 101 S. E. 223. 294; Fishburne v. Furgeson, 84 Va. "Miller v. Wills, 95 Va. 350, 87, 4 S. E. 575; Setzer v. Beale, 19 28 S. E. 337; Mahnke v. Neale, 23 W. Va. 289; Carter v. Carter, 82 W. Va. 57; Wise v. Lamb, 9 Gratt. Va. 624; Jarrett v. Jarrett, U W. Va. 584; Mahnke v. Neale, 23 W. 690 Equity Procedure 900 decree directly or impliedly involves a settlement of the prin- ciples of the cause.i^ It is usual, and in most eases necessary, as directing an issue is often an interlocutory decree, to await the final result of the cause wherein the issue has been directed or refused, before an appeal is taken upon which the action of the court in awarding an issue may be reviewed.-''* § 690. When the court should direct an issue out of chancery. Where there is such a conflict in the evidence that it is so nearly balanced as to make it doubtful upon which side the testimony preponderates,^^ or where there is such a conflict in the evidence as to the existence of any material fact upon the existence or nonexistence of which the validity or correctness of the decree depends,^^ an issue out of chancery ought to be Va. 57; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291; Bartliolow V. Hoge, 71 W. Va. 427, 76 S. E. 813; Stevens v. Duckett, 107 Va. 17, 57 S. E. 601; Ewan v. Louthan, 110 Va. 575, 66 S. E. 869; Shoe- maker V. Shoemaker's Admr., 112 Va. 798, 72 S. E. 684; Hook v. Hook, 126 Va. 249, 101 S. E. 223. 13 Carter v. Carter, 82 Va. 624; Beverly v. Walden, 20 Gratt. (Va.) 147; Reed v. Cline, 9 Gratt. (Va.) 136. 14 Miller V. Wills, 95 Va. 350, 28 S. 2. 337; Jarrett v. Jarrett, 11 W. Va. 584; Anderson v. Cranmer, 11 W. Va. 562; Setzer v. Beale, 19 W. Va. 274; Tompkins v. Stephens, 10 W. Va. 156; Mahnke v. Xeale, 23 W. Va. 57. 15 Anderson v. Cranmer, 11 W. Va. 562; Jarrett v. Jarrett, 11 W. Va;. 584; Setzer v. Beale, 19 W. Va. 274; Williams v. Blakey, 76 Va. 254. Where in an equity ease, in order to ascertain whether there was a deficiency in the amount of land conveyed, it became necessary to establish boumlary lines, and the evidence %yas conilicting in regard thereto, it was proper for the court to call a jury to its aid. Hull v. Watts, 95 'Va. 10, 27 S. E. 829. See Ewan \. Louthan, 110 Va. 575, 66 S. E. 869; Shoemaker v. Shoemaker's Admr., 112 Va. 798, 72 S. E. 684; Bartholow v. Hoge, 71 W. Va. 427, 76 S. E. 813; Hook v. Hook, 126 Va. 249, 101 S. E. 223. :6 Mahnke \: Neale, 23 W. Va. 57; Powell v. Batson, 4 W. Va. 610; McCully v. iloCully, 78 Va. 159; Williams v. Blakey, 76 Va. 254; Ewan v. Loutlian, 110 Va. 575, 66 S. E. 869; Shoemaker v. Shoemaker's Admr., 112 Va. 798, 72 S. E. 684; Bartholow v. Hoge, 71 W. Va. 427, 76 S. E. 813: Catron V. Norton Hardware Co., 123 Va. 380, 96 S. E. 853; Whitaker & Fowle V. Lane, 104 S. E. 232 (Va. 1920). In Williams v. Blakey, supra, Staples, J., in the course of his opinion, speaking for the whole court, says: "The principles which govern the courts in directing issues are well understood. The difficulty is in determining their application to particular cases. As was said by this court in Hord's Admr. v. Oal- 901 Issues Out of Chancery §690 directed.-" "There is such a conflict as will justify an issue whenever the appellate court on an appeal is so divided in opinion as to the weight of evidence that some of the judges think that an issue ought not to have been directed, because the evidence clearly establishes one state of facts, while others of the judges think that the evidence establishes an opposite state of facts.'* The question whether or not an issue ought to be directed must be determined by the proofs in the cause at the time the issue is awarded," except that it is now provided by vert et al, 27 Gratt. 49. 60, an issue will not be directed in every ease because tlie evidence happens to be conflicting, for if the court is fully satisfied as to the evidence; it will not send the case to a, trial at law ; but, as a general rule, where the credit and accuracy of the wit- nesses are impeached, or where the evidence is clashing and conflicting, rendering it necessary to weigh the character and credibility of the wit- nesses, or where the evidence is so equally balanced on both sides tha't it becomes doubtful which scale pre- ponderates,, an issue ought properly to be directed. Ware v. Lamb, 9 Gratt. (Va.) p. — . where the whole question is fully discussed. In 2 Story, Eq. Jur., § 1479, the author, quoting Mr. Blackstone, says: If any matter of fact is strongly con- troverted, the court is so sensible of the deficiency of trial by written deposition, that it will not bind the parties thereby, but will specially direct the matter to be tried by jury. And the same course will be pur- sued where the question turns upon conflicting presumptions of fact from which the court is unable to deduce any satisfactory conclusion. 1 Daniell, 416." 1' See authorities cited under this section. i« Van Gilder v. Hofl'nian, 22 W. Va. 1. "Where there is a conflict of evi- dence, and it is so nearly balanced as to make it doubtful on which side is tlte preponderance, an issue ought to be directed; but when, though there be a conflict, it is not of such character, no issue should be ordered. The conflict of evidence must be regarded as of this char- acter and as justifying the direction of an issue by the circuit court, whenever on appeal the appellate court is so divided in opinion as to the weight of the evidence, that one or more of the judges think the issue ought not to have been or- dered, because the evidence estab- lished clearly a certain state of facts, while the other judge or judges think the issue ought not to have been directed, because in his or their opinion the evidence estab- lishes an opposite state of facts. This marked diversity of opinion as to the weight of the evidence is it- self sufiicient to show that it is doubtful on which side is the pre- ponderance. In such case therefore the order of the circuit court di- recting the issue can not be reversed but must be affirmed." Pickens v. McCoy, 24 W. Va. 344. loMahnke v. Neale, 23 W. Va. §691 Equity Procedure 902 statute in Virginia that the court shall have the discretion to direct an issue before proof has been taken by either party, if it shall be shown by affidavit or affidavits after reasonable no- tice that the case will be rendered doubtful by the conflicting evidence of the opposing party.^" § 691. When an issue out of chancery should not be directed. There should be no issue directed upon merely various and conflicting evidence, unless the conflict creates such an even balance therein as to render it uncertain or reasonably doubtful on which side the preponderance thereof lies. No issue ought to be directed if the evidence ought to satisfy the conscience of the chancellor of the truth of the case.^-' Nor will an issue be directed to enable the party to obtain additional evidence to enable him to make out his ease,^^ nor until the plaintiff has thrown the burden of proof upon the defendant ^^ and the case 57 ; Ohio River R. Co. v. Sehon, 33 W. Va. 550, 11 S. E. 18; Van Gilder V. Hoffman, 22 W. Va. 1; Wise v. Lamb, Gratt. (Va.) 204; Kralver V. Shields, 20 Gratt. (Va.) 377; Smith V. Betty, 11 Gratt. (Va.) 752; Stevens v. Duckett, 107 Va. 17, 57 S. E. 601. =0 Va. Code, 1904, § 3381 ; Stevens V. Duckett, 107 Va. 17, 57 S. E. 601. =iReed v. Cline, 9 Gratt. (Va.) 136; Greer v. Greer, idem, 330; Samuel v. Marshall, 3 Leigh (Va.) 567; Anderson v. Cranmer, 11 W. Va. 562; Jarrett v. Jarrett, 11 W. Va. 584; Setzer v. Beale, 19 W. Va. 289; Smith v. Betty, 11 Gratt. (Va.) 752; Keagy v. Trout, 85 Va. 390, 7 S. E. 329 ; Stevens v. Duckett, 107 Va. 17, 57 S. E. 601; Matney V. Barnes, 116 Va. 713, 82 S. E. 801. Where the testimony of plaintiff and defendant in an equity case each directly contradicted the other as to what a note given by the former to the latter was intended to cover, and the only other wit- ness corroborated defendant, it was improper to direct the issue to be tried by jury. Jackson v. Pleason- ton, 95 Va. 654, 29 S. E. 680. 22 Van Gilder v. Hoffman, 22 W. Va. 1 ; Jones v. Christian, 86 Va. 1017, 11 S. E. 984; Beverley v. Walden, 20 Gratt. (Va.) 149-154. 23 Van Gilder v. Hoffman, 22 W. Va. 1 ; Sands v. Beardsley, 32 W. Va. 594, 9 S. E. 925; Smith v. Betty, 11 Gratt. (Va.) 752. Where there is a direct conflict between two witnesses, the one af- firming and the other denying the fact to be proved, no issue should be directed; and if one is directed, upon which the jury render an af- firmative verdict, and a decree is made accordingly, the appellate court will reverse the decree, be- 903 Issues Out op Chancery §691 has been rendered doubtful by the conflicting evidence of the opposing parties, except as now provided by statute in Vir- ginia}* So, on a question of fraud and deceit, in a suit in which the evidence preponderates in favor of the defendant, upon a denial of the fraud alleged in the bill, an issue should not be directed. ^^ The court, when it has such data before it as to enable it to do so, should decide matters of fact for itself, and save the cost and delay incident to a protracted jury trial ; ^* and where a court has exercised its discretion and proceeded to a deter- mination of the cause without the aid of a jury, its decree will not be reversed for an omission to direct an issue, unless an issue was asked and improperly refused.^' And if there be no conflict between different portions of the evidence, no ambig- cause the issue was improperly or- dered. See Jones v. Christian, 86 Va. 1017, 11 S. E. 984; Keagy v. Trout, 8.5 Va. 390, 7 S. E. 329. This is true because in Virginia an an- swer is evidence for the defendant, and the plaintiff can not shift the burden except by at least one wit- ness and corroborating circum- stances. The same reasoning would not apply in West Virginia. Ante, §468. i* Ante, § 690. "Issues are not directed to enable a party to get additional evidence, but where there is a serious conflict in the evidence leaving the fact in doubt and rendering it necessary to weigh the character and credibility of the witnesses; or where there is such conflict of evidence that it is so nearly balanced as to make it doubtful on which side is the pre- ponderance, an issue ought to be di- rected; but where, though there be a conflict which is not of such a character, no issue ought to be di- rected." Van Gilder v. Hoffman, 22 W. Va. 8. 2!". De Vaughn v. Hustead, 27 W. Va. 773; Smith v. Betty, 11 Gratt. (Va.) 7.12; Loftus v. Maloney, 89 Va. 576, 16 S. E. 749. 20 West Va. Building Co. v. Sau- cer, 45 W. Va. 483, 31 S. E. 965, 72 Am. St. Eep. 822; Hurley v. Oakley Land & Improvement Co., 2 Va. Dec. 319, 24 S. E. 237. In this case .lust cited it is held that on a, bill for the rescission of a contract of purchase of real prop- erty on the ground of fraud and mis- representation, the court will not direct the issue to a jury where the evidence clearly determines it. 27 W. Va. Bldg. Co. V. Saucer, 45 W. Va. 483, 31 S. E. 965, 72 Am. St. Rep. 822; McKinsey v. Squires, 32 W. Va. 41, 9 S. E, 55; Griffith V. Blackwater Boom & Lumber Co., 46 W. Va. 56, 33 S. E. 125. § 693 Equity Proceduee 904 uity or uncertainty in it, but a simple failure to prove material facts, it is improper to direct an issue.^^ §692. When court may either refer the cause to a commis- sioner or direct an issue to be tried by a jury. It not infrequently occurs that a case arises in which the whole subject matter of dispute, as well as all the parties con- cerned in it, are before the court, and that the assessment of damages has become necessary, in order to do complete justice between all parties and thus entirely end the controversy, as when a suit for specific performance has been brought and a de- cree granting the relief is proper, but further relief by way of damages is essential to the ends of justice.^" In such a case, equity will not send the parties to a law forum to litigate their •rights, but will, in its discretion, refer the matter of the assess- ment of damages to one of its commissioners, or direct an issue quanium damnificatus to be tried at its own bar.^" But in no case will equity take jurisdiction, and then assess damages, when the substantial matter in controversy is a claim sounding in damages, and is not involved as a mere incident to a contest of which equity has jurisdiction.'^ § 693. When the court may disregard the verdict of the jury, and enter a decree contrary thereto. If an issue has been improperly directed, upon which a ver- dict has been rendered, the court, upon the final hearing of the cause, may disregard the finding of the jury, and enter such de- cree as to it may seem right.'^ But where an issue properly 28 Reed V. Cline, 9 Gratt. (Va.) Travels, 11 W. Va. at pp. 153, 154. 136. 31 Witz, Beidler & Co. v. Mullen, 29Nagle V. Newton, 22 Gratt. 90 Va. 806, 20 S. E. 483; Ewing (Va.) 814; Campbell v. Rust, 85 v. Litchfield, 91 Va. 580, 22 S. E. Va. 653, 8 S. E. at p. 669; Ayres 362. V. Robins, 30 Gratt. (Va.) 105; -1= Van Gilder v. HoflFman, 22 W. Stearns V. Beckham, 31 Gratt. (Va.) Va. 1; Anderson v. Cranmer, 11 W. 379. Va. 563 ; Hull v. Watts, 95 Va. 10, 30Nagle V. Newton, 22 Gratt. 27 S. E. 829. (Va.) 814. See also, Rohrer v. 905 Issues Out op Chancery §693 lias been directed, and regularly tried by a jury, the verdict ought generally to be treated by the chancellor as conclusive on his conscience,'^ unless there be good cause for a different course,'* since it is the peculiar province of a jury to determine questions of fact and to weigh the evidence and reconcile the conflicts arising therein.'^ However, inasmuch as the purpose of an issue is to inform, the conscience of the chancellor, he is not necessarily bound by the verdict; but if not satisfied with it, may set it aside '^ and award a new trial,'' modify it in reach- ing a final conclusion," or may disregard it and decide the cause without the intervention of another jury.'^ 33 Miller V. Wills, 95 Va. 350, 28 S. E. 337; Pleasants v. Ross, 1 Wash. (Va.) 156; Paul v. Paul, 2 H. & M. (Va.) 525; Nease v. Capehart, 15 W. Va. 299; Marshall V. Marshall, 18 W. Va. 395. 34 Miller V. Wills, 95 Va. 350, 28 S. E. 337. 35 Idem. 36 Hull V. Watts, 95 Va. 10, 27 S. E. 829; Lamberts v. Cooper, 29 Gratt. (Va.) 61; Miller v. Wills, 95 Va. 350, 28 S. E. 337; Fishburne V. Ferguson, 84 Va. 87, 4 S. E. 575; Almond v. Wilson, 75 Va. 626; Carter V. Jeffries, 110 Va. 735, 67 S. E. 284. 37 In West Virginia, it is now provided by statute that if the ver- dict be set aside on an issue out of chancery, there shall be no new trial thereof, but the court may pro- ceed to a decree as if no issue had been directed. W. Va. Code, 1913, «. 131, §4. This statute evidently does not apply to an issue which may be awarded as matter of right, and by the terms of the statute itself it does not apply to issues devisavit vel non. 38 Hull V. Watts, 95 Va. 10, 27 S. E. 829. 39 Reed v. Axtell, 84 Va. 231, 4 S. E. 587; Lambert v. Cooper, 29 Gratt. (Va.) 61; Miller v. Wills, 95 Va. 350, 28 S. E. 337. "A verdict rendered upon an issue directed by an interlocutory order entered in a chancery cause, has no force or value except as it enables the court to arrive at a just con- clusion upon the merits of the con- troversy presented for adjudication. The chancellor may, if satisfied, ap- prove it, and thereon predicate a decree, or, if dissatisfied, disap- prove it, and render such decree as may seem right and just notwith- standing the verdict, or may award a new trial. "But if he approve an erroneous verdict and thereon predicate a. de- cree, it will be reversed on appeal as also erroneous, and such decree will be entered here as he should have entered vipon a consideration of the facts proved upon the trial of such issue." Di Baeco v. Bene- detto, 82 W. Va. 84, 95 S. E. 601. See Wilson v. Wiggin, 73 W; Va. 560, 81 S E. 842; Carter v. Jeff- ries, 110 Va. 735, 67 S. E. 284. § 695 Equity Proceduke 906 § 694. The issue of devisavit vel non. In directing an issue devisavit vel non, the chancellor does not exercise any of the ordinary powers of a court of equity, but acts only in obedience to the express mandate of the statute, the purpose of the issue being to ascertain, by means of a trial by jury, whether or not the will admitted to probate is, in whole or in part, the will of the decedent. When that question has been decided, the function of the suit is exhausted, the verdict is binding upon the court, and a decree must be entered accord- ingly, unless for good cause shown the verdict be set aside, either at the trial, or subsequently on a bill of review.*" § 695. In what court the issue may be tried. In Virginia, before the common law and chancery jurisdic- tions were united in the same judge, the issue was directed to and tried either before the common law judge," or at the bar of the court of equity directing the issue.*^ It is now provided by statute in the Virginias that any court in which a chancery cause is pending may direct an issue to be tried in such court, or in any other circuit court.*^ By virtue of this statute, and even independently of it, the issue may be tried either on the common-law side of the court, or at the bar of the equity court.** But in Virginia, it has repeatedly been decided that where the issue is directed for the purpose of assessing damages as an inci- dent to the main object of the suit, in order to do complete jus- tice in the cause, the issue is tried at the bar of the chancery court.*^ The issue of devisavit vel non may be tried as well on *o Hartman v. Strickler, 82 Va. *- See same citations. 233; Lambert v. Cooper, 20 Gratt. " Va. Code, 1904, §3381; W. Va. (Va.) 61; Fitzhugh V. Fitzhugh, 11 Code, 1913, c. 131, §4. In Vir- Gratt. (Va.) 210; Connolly v. Con- ginia, the issue may be tried in any nolly, 32 idem 657; Norvell v. Les- other circuit or corporation court, sueur, 33 Gratt. (Va.) 229; Dower " ILavell v. Gold, 25 Gratt. (Va.) V. Church, 21 W. Va. 47; Eenick 473; Jarrett v. Jarrett, 11 W. Va. V. Ludington, 20 W. Va. 536 ; Kirby 629 ; Alexander v. Davis, 42 W. Va. V. Kirby, 84 Va. 627, 5 S. E. 539; 465, 26 S. E. 291. Simmons v. Simmons, 85 W. Va. *6 Nagle v. Newton, 22 Gratt. 25, 100 S. E. 743. (Va.) 814; Campbell v. Rust, 85 " Lavell V. Gold, 25 Gratt. (Va.) Va. 666, 8 S. E. 664; Brooken- 473; Grigsby V. Weaver, 5 LeigL (Va.) 197. 907 Issues Out op Chancery § 696 the law side of the eourt/^ as at the bar of the court of chan- cery,*' though under the statute and according to the practice, it is usual to try the issue at the bar of the latter. § 696. As to the trial of the issue before the jury. An examination of the eases will show that the trial of an issue out of chancery is conducted as any other trial before a jury ; the party holding the affirmative introducing his evidence in chief, followed by that of the opposite party, and then intro- ducing the testimony in rebuttal, each party objecting to the introduction of evidence, excepting to the rulings of the court, asking for instructions and arguing the case before the jury — • all in the usual manner of jury trial.** Upon the trial of the issue depositions taken in the cause can not be read in evidence to the jury unless it be shown by proof that the witnesses are dead, are out of the jurisdiction of the court, reside out of the county, or are unable to attend the trial. *^ In the Virginias, the pleadings may always be read to explain the pretensions of the parties ; ^^ and in West Virginia, prior to the adoption of the Code altering the effect of an answer,^^ a defendant had a right to have his answer read to the jury as evidence, with the same effect as upon the hearing of the cause, ^^ and he still has .broiigh V. Spindle, 17 Gratt. (Va.) ■ ants v. Ross, 1 Wash. (Va.) 156; 21. Nease v. Capehart, 15 W. Va. 299; We do not see any substantial Lambert v. Cooper, 29 Gratt. (Va.) reason why the issue in all cases 61; Ogle v. Adams, 12 W. Va. 213; may not as well be tried on the law Henry v. Davis, 13 W. Va. 230; side of the court as the chancery Watkins v. Carlton, 10 Leigh (Va. ) side and vice versa, as the same 560; Brockenbrough v. Spindle, 17 judge presides in both tribunals. Gratt. (Va.) 21; Peery v. Peery, See Meade v. Meade, 111 Va. 451, 26 Gratt. (Va.) 324; Montague v. 69 S. E. 330; Norfolk & W. R. Co. Allan, 78 Va. 592, 49 Am. Rep. 384. V. Allen, 122 Va. 603, 95 S. E. 406. *s Powell v. Manson, 22 Gratt. ^oCoalter v. Bryan, 1 Gratt. (Va.) 177. (Va.) 18, 84. 50 Tompkins v. Stephens, 10 W. 47 Dower v. Church, 21 W. Va. Va. 168. 23; Coalter v. Bryan, 1 Gratt. (Va.) ^i Ante, § 463. 18, 84. 52 Tompkins v. Stephens, 10 W. 4s Mason v. Harper's Ferry Va. 168. Bridge Co., 20 W. Va. 223; Pleas- § 697 Equity Procedure 908 this right in Virginia, '^ unless the oath to the answer, which alters its effect, be waived.^* "With reference to the matter iere treated, a Virginia author, giving the practice in that state, says: "Where the issue is directed, on the trial thereof the rule of evidence is the same as on the hearing in the chancery- court; and the allegations of the answer responsive to the bill must be taken as true, unless contradicted by two witnesses, or one witness and corroborating circumstances. The bill is not proof of its allegations, except so far as those allegations are admitted to be true by the answer ; and the answer is not proof of the allegations therein contained except as to facts to which it is positive and responsive, and not contradictory or eva- sive." ^^ But as .iust indicated, this rule as to the weight of an answer upon the trial of an issue out of chancery before a jury does not obtain in West Virginia, ^^ nor in either state upon the trial of an issue d&visavit vel non.^'' § 697. Setting aside the verdict rendered upon an issue out of chancery. The principles governing a court of equity in directing a new trial upon an issue out of chancery are somewhat different from those which apply to a court of law in granting new trials.^^ It has been decided time and again that, if upon the trial of an issue out of chancery, evidence be rejected which ought to have been received, or evidence be received which ought to have been refused, though in such a case a court of law would grant a new trial, yet if the court is satisfied that if the im- proper refusal or reception of evidence had not taken place upon th6 trial the verdict ought not to have been different, a new 5''' Powell V. Manson, 22 Gratt. ''li Tompkins v. Stephens, 10 W. (Va.) 177; Snouffer v. Hansbrough, Va. lOS. 7!) Va. 166; Danville v. Waddill, "i Bart., Ch. Pr. (2d Ed.), 431, 27 Gratt. (Va.) 451. 432. 54 See ante, §463; Meek v. bs Nease v. Capehart, 15 W. Va. Spraclier, 87 Va. 162, 12 S. E. 397. 299; Meek v. Spracher, 87 Va. 162, "1 Bart., Ch. Pr. (2d Ed.), 431. 12 S. E. 397; Powell v. Manson, 22 Gratt. (Va.) 177. 909 Issues Out op Chancery §697 trial will not be granted merely on such grounds.^' But in most respects the granting or refusal of a new trial upon an issue out of chancery is regulated by the general rules and principles applying to ordinary jury trials.*" In West Virginia, when the verdict on the issue is set aside, there can be no new trial awarded, except where the verdict is rendered upon the trial of an issue devisavit vel non.^^ S9 See same citations. fioSteptoe V. Flood, 31 Gratt. (Va.) 323; MeCully v. McCully, 78 Va. 159; Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Snouffer v. Hans- brougb, 79 Va. 166; Lavell v. Gold, 25 Gratt. (Va.) 473, 476. 61 W. Va. Code, 1913, c. 131, § 4. Tills statute was first enacted in 1882. Althougtx only the issue devisavit vel non is expressly excepted from the operation of the statute, in spite of the doctrine expressio unius est exclusio alterius, it would seem that all other instances ( § 687 ) where a party may demand a jury trial as a matter of right should be excluded. Otherwise, we have a general pro- vision overruling a specific provi- CHAPTEE XXIX SPECIAL COMMISSIONERS § 698. The functions of a special commissioner and who may act as such. I 609. The commissioner must give bond. § 700. The effect upon the sale of the commissioner's failure to give bond. § 701. The court should prescribe the terms upon which the special com- missioner shall sell. § 702. The notice of sale to be given by the commissioner. § 703. The manner in which the sale should be conducted. § 704. As to the adjournment of tlie sale. § 705. The commissioner can not bid or become a purchaser at the sale. § 706. The receipt of bids at the commissioner's sale. § 707. As to tlie withdrawal or rejection of bids. § 708. The enforcement of a bid made at a commissioner's sale. § 709. The interest of the purchaser in the property at a special commis- sioner's sale. § 710. Tlie commissioner's report of sale. §711. Exceptions to tlie commissioner's report of sale. § 712. As to the confirmation of the commissioner's sale. § 713. Inadequacy of price as a ground for setting aside a judicial sale. § 714. Inadequacy of price as a ground for setting aside a judicial sale furtlier considered. § 715. Inadequacy of price as a ground for setting a side a sale further considered. § 716. The effect of the reversal of a decree of sale upon the title of a purcliaser thereunder. § 717. The effect of tlie reversal of a decree of sale upon the title of a, purchaser thereunder furtlier con.sidered. § 718. The rule of caveat emptor applies to judicial sales. § 710. As to rescinding a judicial sale. § 720. The purcliaser's right to the possession of property bought at a judicial sale. § 721. How a purchaser may be compelled to pay tlie purchase money. § 722. How a special commissioner may be proceeded against for breach of duty. § 723. The disposal of the cash payment of the purchase money by the special commissioner. § 724. The removal of a special commissioner. § 725. The compensation of a. special commissioner. § 726. Special commissioners for the assignment of dower. 910 911 Special Commissioners § 698 § 698. The functions of a special commissioner and who may act as such. A special commissioner is an ofBcer of the court/ appointed by the court,^ to carry into effect some specific order or decree entered in a particular suit or proceeding pending therein. Thus, he may be appointed to make sale or partition of property, or to assign dower, or to execute a conveyance or release, or do any other thing which the court can not conveniently do itself.* A special commissioner ought not to be personally interested in the matter to whicli the performance of his duties as such com- missioner relates,* but it is held that such an interest on the iRuhl V. Euhl, 24 W. Va. 279. 2 2 Bart., Ch. Pr. (2nd Ed.), 1162; McClaskey v. O'Brien, 16 W. Va. 791 ; Boiaseau v. Boisseau, 79 Va. 78, 79; Henrie v. Johnson, 28 W. Va. 190; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 11G6; Hale v. Penn, 2.3 Gratt. (Va.) 261; Va. Coal t Iron Co. v. Kelly, 93 Va. 339, 24 S. E. 1020; Yancey v. Hop- kins, 1 Munf. (Va.) 419; Guinn v. Bowers, 44 W. Va. 507, 29 S. E. 1027; W. Va. Code, 1913, c. 132, § 4; Va. Code, 1904, § 3418. As to commisioners in partition and the usual procedure in such cases, vide Hogg, Eq. Princp., §§ 367-378. 3 Authorities in note 2. ■' Etter V. Scott, 90 Va. 762, 19 S. E. 776; 2 Bart., Ch. Pr. (2nd Ed.), 1162. In Teel v. Yancey, 23 Gratt. (Va.) 691, one of the commissioners was a plaintiff in the suit, in his own right and as administrator, and also had an interest in the land sold, both in his own right and as trustee of an- other, and as next friend of the in- fants. The sale being objected to on this ground, the court in its opin- ion says: "There was nothing in these relations which disqualified him as a commissioner to do the be- hests of the court. In fact a com- missioner is but the agent of the court. A sale by a commissioner is a sale by the court; his acts are subject to the control and superin- tendence of the court, and are liable to exception by any person inter- ested; and, indeed, there is no sale without the approval of the court. The fact that Charles A. Yancey was one of the plaintiffs does not affect the validity of the sale. "Under the English practice in chancery proceedings, the conduct of the sales is usually given to the plaintiiT, or other party having the charge of the general proceedings. (See 2 Daniell, Ch. Pr., 1267.) Nor is there anything in the rules of chancery practice in our courts, which forbids such appointment. The commissioner is the officer of the court, and acts under its super- vision. His errors, when brought to the notice of the court, or when appearing on the face of the pro- ceedings, will be corrected." § 699 Equity Procedure 912 part of the commissioner does not amount to error.^ The con- duet of the sale is usually given to the plaintiff, or other party- having the carriage of the general proceedings.' Generally, the counsel for the parties most interested are appointed,' and if there be a dispute as to the appointment, the recommendation of those creditors who show the largest amount of debts will be given the greatest weight ; * and when it is probable there will be a surplus of the proceeds of the sale over the amount necessary to pay the debts, the court will generally appoint the debtor's counsel as one of the commissioners.'' In case of a dis- pute as to the appointment of the commissioner, the whole mat- ter rests in the sound discretion of the court, ^^ except that in West Virginia the commissioner must be a resident of the state. ■'^ § 699. The commissioner must give bond. It is expressly provided by statute in the Virginias, that no special commissioner appointed to make sale of property shall receive any money under a decree or order, until he gives bond before the court or the clerk thereof in the proper penalty.*^ In West Virginia, the present statute provides merely that the special commissioner shall receive no money under the decree until the proper bond has been given ; *' but in Virginia, the property can neither be advertised for sale nor sold until such bond has been given.^* In the latter state, the certificate of the clerk that such bond has been given must be appended to the sale notice.'^ The decree appointing the commissioner must provide 6 Teel V. Yancey, 23 Gratt. ( Va.) 12 w. Va. Code, 1913, c. 132, § 1 ; A^^."762 iVs'e^t"^ ^' ^"°**' "" ^''^- ^°^'' 1"04- §§3397, 3398. 6 2 Daniell,' Ch. Pl. and Pr. (6th " W- Va. Code, 1916, c. 132, § 1; Am. Ed.), 1267. In proper cases, Acts, 1915, c. 76. As to the change preference should be given to a made in the statute by Acts of trustee holding the legal title to the ioik „„„ *., s aoo j. nirrr property. Sulzberger & Sons Co. v. ^^^^' ^"^^ «"*«' § ^^S, note 255. Fairmont Packing Co., 103 S. E. " Va. Code, 1904, §3398. 121 (W. Va. 1920). " Va. Code, 1904, §3398. A sim- 7 2 Bart., Ch. Pr. (2nd Ed.), ilar provision was dropped from the 8 /^g„ West Virginia Code by Acts of 9 Idem. 1"!"^' '-■• 76. Compare W. Va. Code, ^oidem; Martin v. Raster, 49 W. 1916, c. 132, § 1, and W. Va. Code, Va. 647, 39 S. E. 599. 11 W. Va. Code, 1913, c. 132, § 1. 913 Special Commissioners § 700 for the bond to be executed by the commissioner and fix the penalty thereof/^ conditioned as required by law/' otherwise the bond could not be given before the clerk.^^ The law requires the bond to be given with good security,^' the sufficiency of which must be determined by the clerk.^*' The surety should be a person of sufficient means, ^^ and the commissioners can not act as sureties for each other, but the surety must be some one other than a cocommissioner.^^ § 700. The effect upon the sale of the commissioner's failure to give bond. Formerly in the state of Virginia, and such is still the law in West Virginia, if the decree of sale required the commissioner to give bond, and he failed to do so, and the purchaser at the sale paid the purchase money, he did so at his own risk, and the land was still liable for the payment of the same, although the land had been conveyed by the commissioner to the purchaser, in accordance with the directions of the decree so providing upon the payment of the purchase money."' If a defective bond 1906, c. 132, § 1. See ante, § 628, by him as such in some bank or note 255. banks in the county in which the In Virginia, the same law applies suit is properly instituted. Acts, to a special commissioner appointed 1915, c. 76. to rent property that applies to one is Neeley v. Ruleys, 26 W. Va. appointed to sell. Va. Code, 190-1, 691. §3398. J»W. Va. Code, 1913, e. 132, § 1. See Tompkins v. Deyerle, 102 Va. =» W. Va. Code, 1913, c. 132, § 1; 219, 46 S. E. 300, construing this 2 Bart., Ch. Pr. (2nd Ed.), 1167. statute. 212 Bart., Ch. Pr. .(2nd Ed.), loNeeley v. Euley's, 26 W. Va. 1168. 691; Parker v. Valentine, 27 W. == Tyler v. Toms, 75 Va. 116. Va. 677, 681 ; Baker v. Oil Tract Guaranty companies may be re- Co., 7 W. Va. 454; State v. Wot- ceived as sureties on a special corn- ring, 56 W. Va. 394, 49 S. E. 365. missioner's bond in the Virginias See ante, § 628, note 255. imder the regulations provided by iTBalcer v. Oil Tract Co., 7 W. statute. Va. Code, 1904, § 179a; Va. 462, 463; State v. Wotring, 56 W. Va. Code, 1913, c. 54C, §9. W. Va. 394, 49 S. E. 36.5. Acts =3 Shumate v. Williams (Va.),22 of 1915 include that the commis- S. E. 808, citing Hess v. Rader, 26 sioner deposit all money received Gratt. (Va. ) 746; Lloyd v. Erwin. § 701 Equity Procedure 914 be given and not approved by the clerk, the same principle gov- erns.^* In Virginia, by virtue of statute now in force there, if the certificate of the clerk be appended to the notice of sale that the commissioner has given bond as required by law or the order or decree of sale, though no bond has in fact been given, the purchaser is thereby protected in the payment of the pur- chase money.^^ Under the present law in West Virginia, inas- much as the purchaser at a judicial sale must see to it himself that all the requirements of the decree and the statute have been complied with before the sale can lawfully be made,-*' though the decree omit the requirement of a bond, certainly a sale made under such a decree without bond given by the commis- sioner would be invalid, and the payment of the purchase money under such circumstances would be at the risk of the pur- chaser.^' § 701. The court should prescribe the terms upon which the special commissioner shall sell. In the Virginias, it is specially provided by statute that the. court may make a decree or order for the sale of property in any part of the state, and may direct the sale to be for cash, or on such credit and terms as it may deem best.^* Under this statute, the terms of sale rest within the sound discretion of the court ; ^' and if this discretion be abused, the action of the court will be reviewed and reversed.'" The court may direct that the 29 Gratt. (Va.) 598. See Donahue 27 See as bearing on this, McAllia- V. Tackier, 21 W. Va. 124; Shields ter v. Bodl Hogg, Eq. Princp., § 295. 00 12 Enc. PI. and Pr., 62, citing Tyrce v. Williams, 3 Bibb. (Ky.) 36,5, 6 Am. Dee. 663; Diekerman v. Burgess, 20 111. 267; Thomson v. Eitchie, 80 Md. 247, 30 Atl. 70S. 01 Nebraska L. & T. Co. v. Hamer, 40 Neb. 281, 58 N. W. 695; Durn- ford v. Degruys, 8 Martin (La.) 220, 13 Am. Dec. 285; National Bank v. Sprague, 20 N. J. Eq. 159. 0- Nebraska L. & T. Co. v. Hamer, 40 Neb. 281, 58 N. W. 695; Dills V. Jasper, 33 111. 263 ; Gray v. Case, 51 Mo. 463. osHildreth v. Turner, 89 Va. 858, 17 S. E. 471 ; Merwin v. Smith, 2 N. J. Eq. 182; Den v. Zellers, 7 N. J. L. 153; Thomson v. Ritchie, 80 Md..247, 30 Atl. 708. OiChytraus v. Smith, 141 111. 231, 30 N. E 450; Mann v. Jen- nings, 25 Fla. 730, 6 So. 771; Por- ter v. Johnson, 81 Ga. 254, 7 S. E. 317. 05 Idem. This case in the official report appears under the style of Parler v. Johnson. §708 Equity Pkoceduee 920 § 708. The enforcement of a bid made at a commissioner's sale. When a bid has been accepted by the commissioner and a re- port of the sale made to and approved by the eourt,^* and the bidder declines to complete his purchase, he may be compelled to do so.*' The manner of enforcing compliance with a pur- se Hogg, Eq. Princ, § 293, p. 408. 67 Idem. In Stout V. Phillippi M. and M. Co., cited below, the court lays down the doctrine in strong terms imposing the duty upon a purchaser to complete his bid unless valid rea- sons are offered in excuse thereof. See also, upholding this principle, Va. Fire and Marine Ins. Co. v. Cottrell, 85 Va. 857, 9 S. E. 132, 17 Am. St. Rep. 1081; Williams v. Blakey, 76 Va. 254; Hurt v. Jones, 75 Va. 347; Thornton v. Fairfax, 29 Gratt. (Va.) 669; Robertson v. Smith, 94 Va. 254, 26 S. E. 579; Richardson v. Jones, 106 Va. 540, 56 S. E. 343. In Robertson v. Smith, the court says: "Upon a motion to confirm a. commissioner's report of sale, or upon a rule against a purchaser or bidder at such sale to show cause why he shall not be required to comply with the terms of his pur- chase or bid, courts of equity must be able to act in a summary manner. It is the usual practice to allow ex parte affidavits to be read by either party. This is ordinarily the proper practice, but the trial-court, in the exercise of a just discretion, may require depositions to be taken in whole or in part, instead of em parte affidavits, so that an oppor- tunity for cross-examination may he had, or it may refer the matter to one of its commissioners where there is a necessity for it. Savery V. Sypher, 6 Wall. 157; Boyce V. Strother, 76 Va. 862, 864; KaUe V. Mitchell, 9 West Va. at p. 517; 2 Barton's Ch. Pr., p. 1103." In Hurt v. Jones, speaking of the practice on this point, the court says: "A contract for sale under a decree in chancery is governed by the same principles. As soon as the sale is confirmed by the court, there is a completed contract, the bidder becomes a purchaser, and is thence- forth regarded and treated as the equitable owner of the land, with the right reserved to compel him to comply vrith his contract by pay- ment of the purchase money. One of the modes of compelling payment on default made, is to order a re- sale of the land. In such case, the former sale is not set aside, but the land is resold as the land of the purchaser and at his risk. If on such resale it does not bring enough to discharge the unpaid purchase money of the former sale and the costs and expenses of the resale, the purchaser is held for the deficiency. If, on the other hand, it brings more than enough for those purposes, he is entitled to the surplus; for, as long as the sale stands, it is his land (bound for the purchase money), and the proceeding to en- force payment, whether by bill, or in the more summary way, by rule, is substantially a proceeding for the 921 Special, Commissioners 708 chaser's bid is by the service of a rule upon him to show cause why he should not complete his purchase, and, in default thereof, why the property should not be resold at his expense, and at his risk of liability for any difference between the sum bid by him and what the property may bring on a second sale thereof.^* If, after the sale and before its confirmation, the property is destroyed or injured, the purchaser will not be required to com- ply with his purchase, if the purchaser himself be without fault in that respect. ^^ specific performance of a contract. 2 Daniell, Ch. Prac. (4 Amer. Ed., Perkins), 1275, 1282; Clarkson y. Read and others, 15 Gratt. 288; Yancey v. Mauck and others, idein, 300, 306, 307; Long and others v. Weller's Exr. and others, 29 Gratt. 347, 355, 356." "Where a judicial sale is con- firmed, and the court directs the commissioner to cenvey the land to the purchaser, retaining in the deed a lien for the purchase money, and such conveyance is made, and the purchaser sells the land and con- veys it to a third party, and such third party sells and conveys to others, and the purchaser from the commissioner fails to pay the bal- ance of the purchase money, the lien should be enforced by original bill, if the original cause is ended, or if still pending for any purpose, by supplemental bill filed in such case." Glenn v. Blackford, 23 W. Va. 182. 88 See same citations. See Stout V. Phillippi M. and M. Co., 41 W. Va. 339, 23 S. E. 571, 53 Am. St. Rep. 843; Napper v. Mut. L. Ins. Co., 107 Ky. 134, 21 Ky. Law Rep. 791, 53 S. W. 28, 92 Am. St. Rep. 340. "Where a purchaser at a judicial sale fails to comply with the terms of the sale, the commissioner may: (o) ignore the bid and resell the property, but in such case there would be no liability on the pur- chaser should the property sell for a less price at a second sale; or (6) the court may confirm the sale in a, proper case, and compel the pur- chaser to comply with the terms; or (c) the court may order a resale and provide that the purchaser shall be held responsible, in case upon a resale the property shall bring less than his bid — but before a resale, in order to hold the pur- chaser liable, there must be a rule upon him to comply with the terms of the sale, or show cause why it shall not be resold, holding him responsible for any difference be- tween his bid and what it may bring at a, resale; or (d) the court may refuse to confirm the sale." Low- man v. Funkhouser, 78 W. Va. 742, 747, 90 S. E. 340. 68 Stout V. Phillippi M. & M. Co., supra, in the opinion of Brannon, J. ; Va. Fire and Marine Ins. Co. V. Cottrell, 85 Va. 857, 9 S. E. 132, 17 Am. St. Rep. 108. In Hyman v. Smith, 13 W. Va. 744, the court decides: "A court of equity will not give a purchaser at a sale by its commissioners the §709 Equity Procedure 922 § 709. The interest of the purchaser in the property at a spe- cial commissioner's sale. A purchaser acquires no rights in the property purchased by him at a special commissioner's sale until the report of the sale has been confirmed by the court, until which time he is only an inchoate and not an absolute purchaser, having till then no fixed interest in the subject of sale.^" But when the sale is confirmed, it relates back to the day of sale, and the purchaser is consid- ered the owner from and after that date.'^ Still, a purchaser at such sale is a quasi party to the suit from the time of his pur- benefit of his purchase when he neglects to comply with the terms of sale within a reasonable time, if a resale is deemed more beneficial to the parties, or where the pur- chaser has complied with the terms of sale, if it clearly appears from the facts, circumstances and evi- dence before it, that the sale was made at a greatly inadequate price. And so the court will not compel him to take land by confirming the sale, where by the acts of parties to the suit, action on the report of sale by the court in confirming the same has been delayed for such an un- reasonable time that confirmation of the sale would most probably cause him loss, if the purchaser is not in default, or guilty of laches or fraud or the like, and has not ac- quiesced in such delay, as where it appears that during the unreason- able time of delay the property has depreciated in value. "What is such unreasonable time of delay in the confirmation of the sale must of necessity depend, to some extent, upon the facts and surrounding circumstances in each ease. And the court in determining the question must exercise a sound discretion in the interest of fair- ness, prudence and the rights of all concerned, in view of all such facts and surrounding circumstances." 'oKable v. Mitchell, 9 W. Va. 402; Hartley v. Roff'e, 12 W. Va. 401; Marling v. Robrecht, 13 W. Va. 440; Hyman v. Smith, idem, 744; Klapneck & White v. Keltz, 50 W. Va. S.-Jl, 40 S. E. 570; Castle- man V. Castleman, 67 W. Va. 407, 68 S. K. 34, 28 L. R. A. (N.S.) 303; McGinnis v. Caldwell, 71 W. Va. 375, 76 S. E. 834; Lowman v. Funkhouser, 78 W. Va. 742, 90 S. E. 340. "A bid, although accepted by the commissioner making the sale, does not become a complete contract un- til reported to and conlirmed by the court; until then, the bid is merely an ofl'er to buy. but the bidder agrees to be bound by it, if it is accepted and approved by the court." Lowman v. Funkhouser, supra. See Eabin v. Eakin, 83 W. Va. 512, 98 S. E. 608. 71 Cale V. Shaw, 33 W. Va. 299, 10 S. E. 637; Taylor v. Cooper, 10 Leigh (Va.) 317, 34 Am. Dee. 737; Hardman v. Brown, 77 W. Va. 478., 88 S. E. 1016; Eakin v. Eakin, 8.3 W. Va. 512, 98 S. E. 608. 923 Special Commissioners §709 chase.^^ While it is discretionary with the court whether it will accept the bid reported or not, still the discretion is not an arbitrary one, but one that should be correctly exercised and may be reviewed by an appellate court in a proper case.''' 72 Patterson v. Eakin, 87 Va. 49, 12 S. E. 144; Brook v. Eice, 27 Gratt. (Va.) 812; Stout v. Phil- lippi M. and M. Co., 41 W. Va. 339, 23 S. E. 571, 56 Am. St. Eep. 843; Lowman v. Funkhouser, 78 W. Va. 742, 90 S. E. 340; Eakin v. Eakin, 83 W. Va. 512, 98 S. E. 608. "In sales made by commissioners under decrees and orders of a court of equity, the purchaser who bids off the property and pays the de- posit in good faith, is considered as having acquired inchoate rights whicli entitle him to a hearing upon the question wliether the sale shall be set aside.'' Connell v. Wilhelm, 36 W. Va. 598, 15 S. E. 245, 240. In Childs V. Hurd, 25 W. Va. at pp. 532, 533, the court, in its opinion, says: "There is no doubt of the correctness of the legal prop- osition that the purchaser of prop- erty at a judicial sale who has com- plied with the terms thereof, be- comes a party to the suit from the time of his purchase, and thus sub- jects himself to the orders of the court, in all subsequent proceedings in regard thereto, acquires an in- chonte right which entitles him to a hearing upon the question whether the salr> shall be set aside, and that if the corrt err, by setting aside the sale improperly, the purchaser will in a proper case, have the right to appeal to a higher tribunal. Dela- plaine v. Lawrrnce'fi Adniinisfra- tor. 10 Paige 602: Blossom v. The Miiwau/icc Railroad Company, 1 Wall. 655; Curtis v. Thompson, 29 ■Gratt. 494 [26 Am. Rep. 387]; KaUe V. Mitchell, 9 W. Va. 492; Hughes & Go. v. Hamilton & Co., 19 W. Va. 366; Haymond v. Cam- den, 22 W. Va. 180; Tally & Co. V. Starke's Administrator, etc., 6 Gratt. 339; Mwrling v. Bohrecht, 13 W. Va. 440. * * * "After a careful examination of numerous authorities, we are un- able to deduce from them any rule, whereby we can determine in what particular class of cases a purchaser at a, judicial sale which has not been confirmed, can be said to be injured by a decree setting aside his purchase, and directing the property to be reoffered for sale, until after such resale lias been made and con- firmed, for until then non constat, but that at the resale he may pur- chase the property on terms more favorable than he did at the first sale. • * * The result of this examination is the conclusion that where a sale of property has been made under a decree of a court of equity, and before the same has been confirmed, the court has set the same aside and ordered the prop- erty to be reoffered for sale, the purchaser at such first sale can not appeal from the decree setting the same aside, before such resale has been made and confirmed." See Haymond v. Camden, 22 W. Va. 180; L. & M. Co. V. Brockmeyer, 23 W. Va. 638. 73 Marling v. Robrecht, 13 W. Va. [31] §711 Equity Peocbduee 924 § 710. The commissioner's report of sale. All commissioners' sales are conditional — ^mere offers which the court may or may not confirm.'^ They are not judicial sales until confirmed by the court.'^ A commissioner must, there- fore, make report of sale to the court, and of all he has done touching the same.'^ The report should contain all that may be necessary to show a full compliance with the decree of sale on the part of the commissioner making the sale.''' § 711. Exceptions to the commissioner's report of sale. Unless the report of sale be so substantially defective on its face as to require the court of its own motion to set the same aside, objections to the report are raised by exceptions filed to 440; Hyman v. Smith, 13 W. Va. 744; Brock v. Rice, 27 Gratt. (Va.) 812. "A bid, though accepted by the commissioner conducting the sale, does not become a contract until reported to and confirmed by the court. Up to that time it is merely an offer to buy; but as an offer it becomes binding upon the bidder when accepted and confirmed by the court, and may be enforced against him. Stout V. Phillippi M. & M. Co., 41 W. Va. 339, 23 S. E. 571, 56 Am. St. Rep. 843; Lowman v. Funkhouser, 78 W. Va. 742, 90 S. E. 340; Richardson v. Jones, 106 Va. 540, 56 S. E. 343. Until then the right of the purchaser is in- choate; the sale is an incomplete bargain, merely an offer which the court may or may not accept as circumstances and conditions may require. That is the stage »t which the court may open anew the bid- ding upon an advanced offer, sub- stantial and made in good faith. But even at this stage it is always discretionary with a court whether it will confirm a sale, though made and complied with in all respects as required by its decree, or set ;t aside and direct a resale. Whether a court will confirm must depend in great measure on the circum- stances in each case, abuse of the discretion when effecting inequities being subject to review by the ap- pellate court. Lowman v. Funk- houser, supra; 8 Enc. Dig. Va. & W. Va. Rep., 722, 728." Eakin v. Eakin, 83 W. Va. 512, 98 S. E. 608. 74 Bank v. Jarvis, 28 W. Va. 814; Kable v. Mitchell, 9 W. Va. 492; Hildreth v. Turner, 89 Va. 858, 17 S. E. 471; Lowman v. Funkhouser, 78 W. Va. 742, 90 S. E. 340, quoted ante, § 709, note 70 ; Eakin v. Eakin, 83 W. Va. 512, 98 S. E. 608, quoted ante, § 709, note 73. T5 Hess V. Rader, 26 Gratt. (Va.) 746; Klapneck v. Keltz, 50 W. Va. 331, 40 S. E. 570; McGinnis v. Cald- well, 71 W. Va. 375, 76 S. E. 834. See cases cited in preceding note. 76 Crockett v. Sexton, 29 Gratt. (Va.) 46. See W. Va. Code, 1913, c. 132, § 1. 77 See post, § 1164, where the form of a report of sale is given. See Laidley v. Jasper, 49 W. Va. 526, 39 S. E. 169. 925 Special Commissioners § 711 it, which ought to be so specific as to direct the mind of the court and the parties in interest to the particular defect or omis- sion upon which the exception is predicated." Thus, if the commissioner has not advertised the time and place of sale or posted the advertisement as required by the decree of sale, tha exceptions should so specify, and thus put the matter in issue.'' So, if the objection to the confirmation of sale be inadequacy of price, the exceptions should so designate.*" The power of the court over the sale is very different, and much greater, before than it is after the sale has been confirmed.^'' After the con- firmation of the sale, it is held in West Virginia that no error of any kind in the decree ordering the sale, not affecting the authority of the commissioner to make it, can disturb the sale or affect the purchaser's rights thereunder.*^ All objections to a commissioner's sale by parties to the suit should be made be- fore its confirmation, and if they permit the sale to be confirmed without objection, they can not afterwards be heard on objec- tion then for the first time made to the sale, unless they have been prevented from asserting their objections through fraud or other adventitious circumstances beyond their control."^ 7S Hartley v. Roffe, 12 W. Va. firmation. Trimble v. Herold, 20 401, 421; Trimble v. Herold, 20 W. W. Va. 602, 612; Coles v. Coles, 33 Va. at p. 612; Hughes v. Hamilton, Va. 525, 5 S. E. 673; Todd v. Gal- 19 W. Va. 398; Schmertz v. Ham- lego Mfg. Co., 84 Va. 586, 5 S. E. mond, 51 W. Va. 408, 412, 41 S. E. 676; Insurance Co. v. Cottrell, 85 184. Va. 857, 9 S. E. 132, 17 Am. St. "Hartley v. Eoffe, 12 W. Va. Kep. 108." Eakin v. Eakin, 83 W. 401; Karn v. Rorer Iron Co., 86 Va. Va. 512, 98 S. E. 608, 611. 754, 11 S. E. 431. The case of Terry v. Coles is a so Hughes V. Hamilton, 19 W. Va. well considered one, and should be 398. examined as to the power of the 81 Trimble v. Herold, 20 W. Va. court over a sale before and after 612; Klapneck v. Keltz, 50 W. Va. its confirmation. 331, 40 S. E. 570; Hughes v. Ham- 82 Trimble v. Herold, 20 W. Va. ilton, 19 W. Va. 398; Berlin v. Mel- 612. horn, 75 Va. 639 ; Terry v. Coles, 80 83 Klapneck v. Keltz, 50 W. Va. Va. 702, 703. 331, 40 S. E. 570; Hughes v. Ham- "There is a wide difference be- ilton, 19 W. Va. 398; Beard v. Ar- tween the court's power of control buckle, 19 W. Va. 135; Hildreth v. over a. sale before and after con- Turner, 89 Va. 858, 17 S. E. 471 ; §711 Equity Procedure 926 And this rule applies with pecnliar force, when the purchasers Berlin v. Melhorn, 75 Va. 639; Va. Fire and Marine Ins. Co. v. Cot- trell, 85 Va. 857, 9 S. E. 132, 17 Am. St. Rep. 108; Lawson v. Moor- man, 85 Va. 880, 9 S. E. 150; Rob- ertson V. Smith, 94 Va. 254, 26 S. E. 579. "But after it has been approved and confirmed by tlie court, thus completing the contract, it can be set aside only for good cause. It is then not a matter of discretion with the court, but some special ground must be laid, such as fraud, col- lusion, accident, mistake, miscon- duct upon the part of the purchaser or some other person connected with the sale or such other cause as ■would wai-rant relief in equity had the sale been by the parties inter- ested instead of by the court. Ber- lin V. Melhorn, 75 Va. 639; Langy- her V. Patterson, 77 Va. 470; Todd V. Gallego Mfg. Co., 84 Va. 586, 5 S. E. 676; Insurance Co. v. Cottrell, 85 Va. 857, 9 S. E. 132, 17 Am. St. Rep. 108; Allison v. Allison, 88 Va. 328, 13 S. E. 549; Syndicate v. Johnson, 100 Va. 774, 42 S. E. 995; Morrison v. Burnette, 154 Fed. 617, 83 C. C. A. 391, 16 R. C. L. 100. Public policy ana fair dealing alike demand protection to purchasers at judicial sales, when they have com- plied with the terms prescribed by the decree and the sale has been confirmed." Eakin v. Eakin, 83 \V. Va. 512, 98 S. E. 608. "The mere phrase 'good cause ap- pearing' contained in a decree an- nulling a prior confirmation decree, can not be accorded the weight con- "tnded for by appellee. The indefi- nite recital means nothing, and an appellate court can not lift the veil to see what it conceals. If good cause existed — that is, such cause as the decisions recognize and en- force as sufficient to vacate such a decree, as fraud, accident, mistake — the decree should have disclosed it in the interest of fairness and justice. Such matters ought not be left doubtful, uncertain or conjec- tural." Idem. In the case of Robertson v. Smith it was contended by the appellant that the terms of sale as reported differed from those of the decree of sale, which, in fact, was so. But as to this point the court says: "There was no objection made to the reading of the affidavits in the chancery court, and there is nothing in the record to show that the court erred in allowing them to be read even if that question could be raised for the first time in the appellate court. "The deed executed to the appel- lant by the commissioners was exe- cuted without authority of the court, does not conform to the terms of the sale as reported and confirmed, was delivered to the ap- pellant, it seems, by inadvertence of the commissioners, and, as declared by the court in its decree of Feb- ruary 10, 1893, was null and void. "The evidence in the case clearly shows that the appellant purchased the 42-acre tract of land from the commissioners of the court upon the terms and conditions stated in their report filed October 11, 1892. "It is true, as contended by ap- pellant, that tlie terms of the sale as reported, differed from the terms of the decrees under which the com- missioners were acting, in this, that in addition to making the cash pay- ment, and assuming payment of the $10,000 mortgage, as required by the decree, the purchaser also un- dertook to have the lien of the mortgage on the 'Quarry tract' of 927 Special Commissioners §711 are strangers to the suit, and in no wise interested therein.*'' land released. The confirmation of the report of the commissioners by the court cured this irregularity, and gave the sale of the commis- sioners the same validity and effect as if they had sold upon the precise terms of the decree." See Sipe v. Taylor, 108 Va. 231, 55 S. E. 542. See Karn v. Eorer Iron Co., 86 Va. 754, 11 S. E. 431 ; Redd v. Dyer, 83 Va. 331, 2 S. E. 283, 5 Am. St. Eep. 272; Thomas v. Davidson, 76 Va. -338; Hansuclcer v. Walker, 76 Va. 753; Beard v. Arbuckle, 19 W. Va. 135; Blakemore's Admr. v. Roller, 110 Va. 719, 67 S. E. 377, 135 Am. St. Rep. 956; Benet v. Ford, 113 Va. 442, 74 S. E. 394; Castleman v. Castleman, 67 W. Va. 407, 68 S. E. 34, 28 L. R. A. (N.S.) 393. But a different rule prevails where the very decree confirming the sale is itself erroneous. Chap- man V. Branch, 72 W. Va. 54, 78 S. E. 235. In Langyher v. Patterson, 77 Va. 470, there vi'ere no exceptions to the commissioner's report, which showed on its face that he had de- parted from the terms of sale, and the court in its opinion says: "The court, in confirming a sale, may ratify various irregularities in the proceedings of the pommissioner of sale, even the changing of the terms of sale, and supply or cure all de- fects in the execution of its decree, except those founded in defect of jurisdiction, or in fraud. Rorer on Judicial Sales, section 122: Branch's Principia, 28; Cockey v. Cole, 28 Md. 276; Williamson v. • Berry, 8 Howard 546 ; Freeman on Void Judicial Sales, section 42; Emory v. Vrooman, 19 Wis. 724; Thorn v. Ingram, 25 Ark. 58; Oon- over Y. Musgrave, 68 111. 58." In Core v. Strickler, 24 W. Va. 689, the court decides: "Where a sale of real estate is made under a decree of court and confirmed with- out exception, such sale is not void because made by a commissioner not previously authorized to make it; and, therefore, a bill of review does not lie to correct the irregu- larity of such sale.'' See Estill v. McClintic, 11 W. Va. 400; Daniels v. Leitch, 13 Gratt. (Va.) 195; Cralle v. Meem, 8 Gratt. (Va.) 496; Garland v. Loving, 1 Rand. (Va.) 396; Effinger V. Kenney, 79 Va. 551 ; Hiekson v. Rucker, 77 Va. 138; Springston v. Morris, 47 W. Va. SO, 34 S. E. 766. In Patterson v. Eakin, 87 Va. 49, 12 S. E. 144, in discussing the pro- priety of setting aside a decree of sale because of want of notice, the court says: "But it by no means follows that the decree, setting aside the sale because the notice ' was not given, is right. On the con- trary, it is plainly erroneous, for the question is, Has the appellee been prejudiced by the failure of the purchaser to give him notice? "In a number of recent decisions this court has held that a judicial sale which has been absolutely con- firmed by the court that ordered it, is not to be set aside for mere irreg- ularity, or for mere inadequacy of price, or for an increase of price alone, but that to rescind it, some special ground must be laid — some- thing which goes to the very sub- stance of the contract — such as fraud, accident, mistake, or miscon- duct on the part of the purchaser or other person connected with the sale which has worked injustice to the party complaining." siKlapneck v. Keltz, 50 W. Va. § 712 Equity Procedure 928 § 712. As to the confirmation of the commissioner's sale. Whether a court will confirm or set aside a sale rests in its sound discretion, and depends upon the facts and circumstances of each particular case.^^ In determining whether it will with- hold its approval of the sale or direct a resale of the property, the court is always actuated by considerations of fairness and prudence, and by a just regard for the rights of all parties con- cerned.^^ It is impracticable to lay down any rule applicable to all cases, nor is it possible to specify all the grounds which will justify a court in withholding its approval of a sale made under its decree.*'' If anything transpires at the sale, or if any- thing occurs in any substantial way relating to the execution of the order of sale, whereby the rights of bidders or intended bidders, or of parties in interest, are prejudiced without the fault of the party injured or affected, or if there is reason to believe that fraud or mistake has been committed to the detri- ment of the owner or purchaser, or that the officer conducting the sale has been guilty of a breach of duty, to the injury of par- ties interested, the court will refuse confirmation and direct a resale of the property.*^ Thus, upon this principle, a sale will be set aside for a mistake or misunderstanding between the per- 331, 40 S. E. 570; Hughes v. Ham- 86 Hilleary v. Thompson, 11 W. ilton, 19 W. Va. 398; Beard v. Ar- Va. 113; Hartley v. Eoffe, 12 W. buckle, 19 W. Va. 135. Va. 401; Marling v. Eobrecht, 13 85 Kable v. Mitchell, 9 W. Va. W. Va. 441 ; Thomas v. Bank, 86 402; Hartley v. Eoffe, 12 W. Va. Va. 292, 9 S. E. 1122; Eakin v. 401; Beaty V. Veon, 18 W. Va. 291; Eakin, 83 W. Va. 512, 98 S. E. Brock V. Eice, 27 Gralt. (Va.) 812. 608. "Before confirmation the rights 87 Marling v. Eobrecht, 13 W. Va. of the purchaser are inclioate, and 441; Beaty v. Veon, 18 W. Va. 291; upon a showing of inadequacy of Jiloran v. Clark, 30 W. Va. 358, 4 price or upon an offer of a higher S. E. 303, 8 Am. St. Eep. 66: Brock bid, properly secured, it is diacre- v, Eice, 27 Gratt. (Va.) 812; Eakin tionary with tlie court whether it v. Eakin, 83 W. Va. 512, 98 S. E. will confirm the sale or set it aside 60S. and direct a resale. The exercise ss Hilleary v. Thompson, 11 'W. of this discretion depends in large Va. 113; Hartley v. Eoffe, 12 W. measure upon tlie facts of each Va. 401; Brock v. Eice, 27 Gratt. case, abuse thereof when effecting (Va.) S12; Eorer, Jud. Sales, inequities being subject to review §§403-424; Barger v. Buckland, 28 by tlio appellate court." Eakin v. Gratt. (Va.) 850; Benet v. For,^ Eakin, 83 W. Va. 512, 98 S. E. 608. 113 Va. 442, 74 S. E. 394. 929 Special Commissioners §713 son conducting tte sale and intended bidders or parties in inter- est ; *' or if the report of sale be excepted to before confirma- tion, on the ground that the decree of sale failed to fix the amounts and priorities of the liens charged thereon ; ^^ or where the auctioneer bids at the sale, either for himself or another ; '* or for an insufficiency of the description of the property sold combined with inadequacy of price ; ^^ or because a sale was made by a different person than the one named in the decree.'^ § 713. Inadequacy of price as a ground for setting aside a judicial sale. The courts of West Virginia incline to the opinion that a sale made at a greatly inadequate price ought not to stand,'* and in ssHilleary v. Thompson, 11 W. Va. 113; Shuck v. Price, 22 Ky. Law Eep. 1261, 60 S. W. 487; Low- man V. Funkhouser, 78 W. Va. 742, 90 S. E. 340. 90 Trimble v. Herold, 20 W. Va. 602. 91 Brock V. Rice, 27 Gratt. (Va.) 812. 92 2 Bart., Ch. Pr. (2nd Ed.), 1181. 93 Idem. Of course it is error to enter a decree confirming a sale of property which the commissioner lias not sold. Chapman v. Branch, 72 W. Va. 54, 78 S. E. 235. The decree directed the commis- sioner to sell the land in the bill and proceedings mentioned, or ao much thereof as would be necessary to satisfy the purposes of the de- cree. The commissioner reported that he sold the tract of land in the bill mentioned, known as the "Home Tract." This tract was de- scribed in the bills as lying partly in Tazewell county and partly in Mercer county, West Virginia; but how much in each was differently stated in the different bills, and it was doubtful whether the commis- sioner sold the whole or only that in Tazewell county. Eeld, the re- port leaving it in doubt how much or what they sold, the sale should be set aside. Barger v. Buckland, 28 Gratt. (Va.) 850. A judicial sale was objected to, first, because the land was sacri- ficed; second, because one of the commissioners to sell was interested in the purchase of one-half of the land; third, because a material ad- vance was offered by a substantial bidder ; and, fourth, because there was no memorandum. It was held that these were valid objections and the sale was pro])erly set aside. Teel V. Yancey, 23 Gratt. (Va.) 691. "If a tract of land, being adver- tised to be sold on the premises, be sold, not immediately on the prem- ises, but within eighty yards of the dwelling house, within full view of it, and about fifteen or twenty yards from the boundary line; it being believed by some present that they were on the premises; such sale, being regular in other respects, and no fraud appearing, is not to be set aside." Ferguson v. Frank- lins, 6 Munf. (Va. ) 305. 9*Hillcary v. Thompson, 11 W. Va. llfl;. Hartley v. Eoffe, 12 W. Va. 401; Hyman v. Smith, 13 W. § '714 Equity Procedure 930 determining the question whether the price is inadequate, the court will consider afifidavits or depositions in connection with the fact that a much larger price is offered to the court for the land, and secured or offered to be secured, than that for which the land sold ; or the matter may be determined by any evidence or fact or facts before it, which clearly shows that the land sold at a greatly less price than it is actually worth.'^ In moving to set aside a sale because of inadequacy of price, the decisions show that the motion is usually, if not always, accompanied with an up-set bid. The amount of an up-set bid which will justify a court in directing a resale of the property must necessarily de- pend upon the facts and circumstances of each case.'^ No fixed rule in such cases can be laid down.°' A sale will not be set aside for inadequacy of price, in the absence of an offer of a sub- stantial, increased up-set bid, unless the inadequacy is so gross as to justfy the presumption of fraud, and one-half the estimated value of the property is not such inadequacy.^* § 714. Inadequacy of price as a ground for setting aside a judicial sale further considered. In Virginia,"^ while mere inadequacy of price will not au- thorize a resale of property, a substantial and material inade- Va. 744; Beaty v. Veon, 18 W. Va. ^" Hogg, Eq. Princp., §294; 291; Trimble v. Herold, 20 W. Va. 8elinnertz v. Hammond, .51 W. Va. 602; Bank v. .Tarvis, 28 W. Va. 409, 41 S. E. 184; Eakin v. Eakin, 805; Moran v. Clark, 30 W. Va. 83 W. Va. .512, 98 S. E. 608. 358, 4 S. E. 303, 8 Am. St. Rep. 66; 9? l i n„ ttt -rr Quesenberry v. Barbour, 31 Gratt. Chapman v. Branch, 72 W. Va. 5i, (Va.) 491). 78 S. E. 235. S85 Special Commissioners §718 restitution of the proceeds of sale to those entitled thereto.^^* Upon the disafSrmanee of a void judicial sale, the purchaser should be placed in statu quo.^^^ "To do this where no im- provements have been put upon the property, he must receive back his purchase money with interest, and be charged with the reasonable rents and profits of the property while in his posses- sion less the taxes paid by him. ' ' ^^* § 718. The rule of caveat emptor applies to judicial sales. The purchaser at a court sale buys at his own risk — under the rule of caveat emptor (let the purchaser take care).^^^ The 11* W. Va. Code, 1913, e. 132, § 8; Flemings v. Riddick, 5 Gratt. (Va.) at p. 281. 115 Charleston L. and M. Co. v. Brockmeyer, 23 W. Va. 635; Hay- mond V. Camden, 22 W. Va. 180; Hudgin V. Hudgin, 6 Gratt. (Va.) 320, 52 Am. Dee. 124; Hutson v. Sadler, 31 W. Va. 358, 6 S. E. 920; Conrad v. Crouch, 68 W. Va. 378, 385, 69 S. E. 888; State, ex rel. Shull, V. U. S., Fidelity & Guaranty Co., 81 W. Va. 184, 94 S. E. 123. 110 Charleston L. and M. Co. v. Brockmeyer, 23 W. Va. 635. "A purchaser having purchased land under a void decree is entitled upon the disaffirmance of the sale to be substituted to the rights of the creditor, and charge the land with the amount of the debt paid by him. "The rents and profits, less the taxes, received by the person whilst in possession of tlie land, should be deducted from the amount for which he is entitled to charge it, and he should have a, decree charg- ing the land for the balance." Hay- mond V. Camden, 22 W. Va. 180. See State, ex rel. Shull, v. U. S. Fidelity & Guaranty Co., 81 W. Va. 184, 94 S. E. 123. See 2 Bart., Ch. Pr. (2nd Ed.), 1187; Effinger v. Kenney, 92 Va. 245, 23 S. E. 742; Hull v. Hull, 35 W. Va. 155, 13 S. E. 49, 29 Am. St. Rep. 800. 11' Williamson v. Jones, 43 W. Va. 562, 27 S. E. 414, 64 Am. St. Rep. 891; Calvert V. Ash, 47 W. Va. 480, 35 S. E. 887 ; Capehart v. Dow- ery, 10 W. Va. 130; Young v. Mc- Clung, 9 Gratt. (Va.) 336; Headley v. Hoopengarner, 60 W. Va. 626, 642, 55 S. E. 744; Virginia Iron, C. and C. Co. v. Bond, 111 Va. 319, 68 S. E. 1005; Sproul v. Hunter, 122 Va. 102, 94 S. E. 179. In England, it seems that where lands are decreed to be sold by the Court of Chancery, the court in most instances undertakes to sell a good title, and therefore it is com- mon to make a reference, to see if a good title can be made to the pur- chaser; and he will not be com- pelled to take one that is defective. Warlow V. Smith, 2 P. Wms. 198; Shaw V. Wright, 3 Ves. E. 22 ; Coffin V, Cooper, 14 Ves. R. 205; Coop. Rep. 138; Sugden on Vend. 105, §718 Equity Procedure 936 court ordering the sale or commissioner making it warrants nothing.ii^ A person buying at such sale is conclusively held to have notice of all facts which an examination of the record would have disclosed to him.'^' The court undertakes to sell only such title and quantity of land as the ostensible owner, who must be a party to the suit, possesses and it is the duty of the purchaser to ascertain for himself the title to the land as well as the extent thereof, and if he have just ground of objec- tion for want or defect of title, he should present his objections to the court before the confirmation of the report of sale.-'^" A §21, 113, §47; Daniell, Chan. Pr., 1455. In Virginia, the course has been different. See Long v. Waller, 29 Gratt. (Va.) 347; Hiekson v. Eueker, 77 Va. 138; Redd v. Dyer, 83 Va. 331, 2 S. E. 283. 118 Williamson v. Jones, 43 W. Va. 562, 27 S. E. 414, 64 Am. St. Eep. 891. 11.0 Idem. "Apparent defects, known defects, or such as might reasonably have been seen and discovered, afford no ground for relief, but such as are concealed, and not of a nature to be discovered, do constitute good ground for relief. Hence, where one of two adjoining lots owned by the same parties was sold at auction under a decree of court, and at the time of sale nothing was said of an easement running from the un- sold lot through the one sold, for carrying water from the former to a culvert in the street, and the ease- ment was not to be seen, and was not known to the purchaser, or even to the auctioneer, it was held that the purchaser was entitled to have his lot free of the easement; and because of a mutual mistake in the ([uantity of land sold, the value of forty-two and one-half acres was abated to the purchaser from his purchase money." 2 Bart., Ch. Pr. (2nd Ed.), 1186, 1187. See First Nat. Bank v. Hyer, 46 W. Va. 13,32 S. E. 1000; Headley v. Hoopengarner, 60 W. Va. 626, 643, 55 S. E. 744; Board of Education V. Berry, 62 W. Va. 433, 59 S. E. 169, 125 Am. St. Rep. 975; Bellenot V. Laube's Exr., 104 Va. 842, 52 S. E. 698; Blakemore's Admr. v. Rol- ler, 110 Va. 719, 67 S. E. 377, 135 Am. St. Rep. 956. A purchaser will be charged with knowledge that a- decree of sale is void because not warranted by the pleadings. Con- rad V. Crouch, 68 W. Va. 378, 385, 69 S. E. 888. Likewise, a purchaser from a purchaser under a void de- cree is bound to know want of juris- diction. Waldron v. Harvey, 54 W. Va. 608, 620, 46 S. E. 603, 102 Am. St. Rep. 959. But a purchaser is not bound to inquire as to the au- thority of an attorney to bind his client by a consent decree. Teter v. Irwin, 60 W. Va. 200, 71 S. E. 115. 120 Young V. McClung, 9 Gratt. (Va.) 336; Threlkelds v. Campbell, 2 Gratt. (Va.) 198, 44 Am. Dec. 384; Long v. Weller, 29 Gratt. (Va.) 347; Smith v. Wortham, 82 Va. 937, 1 S. E. 331; Hickscn v. S37 Special Commissioners §718 person having purchased property at a judicial sale, and having permitted the sale to be confirmed without objection, is not entitled to be relieved from his purchase, nor from paying the purchase money, thouglf he has acquired no valid title to the land purchased by him.'^^ Of course, this doctrine is subject to the qualification that the purchaser is entitled to relief on the ground of after-discovered mistake of material facts, or fraud.^^^ But the mistake must be mutual, for the mistake of one of the parties, occasioned by his own culpable negligence, does not en- title him to relief as against the other, who is free from negli- gence. -"^^^ And if fraud or mistake be relied on by a purchaser after the sale has been confirmed, it must be clearly and dis- tinctly charged and proved.^^* It is scarcely necessary to state ihat a purchaser at a judicial sale obtains title only to such prop- erty as the decree authorizes to be sold.^^^ Eucker, 77 Va. 13."); Headley v. Hoopengarner, 60 VV. Va. 62fi, 643, 55 S. E. 744; Bellenot v. Laube's Exr., 104 Va. 842, 52 S. E. 6!)8; Kirk V. Oakey, 110 Va. 67, 65 S. E. 528, 135 Am. St. Rep. 915; Blake- more's Admr. v. Roller, 110 Va. 710, 67 S. E. 377, 135 A. S. R. 956; Bennett v. Booth, 70 W. Va. 264, 73 S. E. 909. See Pechin v. Porter- field, 104 S. E. 695 (Va. 1920). But see Young & McWhorter v. Smith, 107 S. E. 110 (W. Va. 1921). A purchaser takea only the rights or interests of those wiio are before the court. Goodloe v. Woods, 115 Va. 540, 80 S. E. 108. 121 Young V. McClung, 9 Gratt. (Va.) 336; Worsham v. Hardaway, 5 Gratt. (Va.) 60; Redd 'v. Dyer, 83 Va. 331, 2 S. E. 283, 5 Am. St. Rep. 272; Hickson v. Eueker, 77 Va. 135; Boyce v. Strother, 76 Va. 862; Crislip v. Cain, 19 W. Va. 438; Headley v. Hoopengarner, 60 W. Va 626, 643, 55 S. E. 744; Kirk V. Oakey, 110 Va. 67, 65 S. E. .528, 135 Am. St. Rep. 915. See Young 6 McWhorter v. Smith, 107 S. E. 110 (W. Va. 1921). "The rule caveat emptor do^s not apply to mistakes in the qUu,ntity of land sold by the acre at a judi- cial sale, as it does to defects of title." Castleman v. Castleman, 67 W. Va. 407, 68 S. E. 34, 28 L R. A. (N.S.) 393. But see Blakemore's Admr. v. Roller, 110 Va. 719, 67 S. E. 377, 135 Am. St. Rep. 956; Young & McWhorter v. Smith, supra. Nor does it apply where there is a total lack of title. Idem 122 Redd V. D.yer, SI! Va. 331, 2 S. E. 283, 5 Am. St. !lpp. 272; Hickson v. Rucker, 77 Va. 135; Castleman v Castleman, 67 W. Va. 407, 68 S. E. 34, 28 L. R. A. (N.S.) 393; Blakemore's Admr. v. Poller, 110 Va. 719, 67 S. E. 377, 135 Am. St. Rep. 956. 123 Redd V. Dyer, 83 Va. 331, 2 S. E. 283, 5 Am. St. Rep. 272; Long V. Weller, 29 Gratt. (Va.) 347. 124 Eedd V. Dyer, 83 Va. 331, 2 S E. 283, 5 Am. St. Rep. 272; Hord V. Colbert, 28 Gratt. (Va.) 49; Gregory v. Peoples, 80 Va. 355. 125 First Nat. Bank v. Hyer, 46 W. Va. 13, 32 S. E. 1000. § 721 Egmi-T Procedure 938 § 719. As to rescinding a judicial sale. it is the policy of the law that purchasers at judicial sales, who are amenable to the coercion of the courts for the perform- ance of their part of the contract of sale, should also be entitled to certainty and security of their once vested rights under the contract.^^" Hence, after a sale has been confirmed by the court, it can not be set aside except upon petition or motion, after proper notice to all parties interested and for good cause shown.i^^ §720. The purchaser's right to the possession of property bought at a judicial sale. After the confirmation of a sale of property made under a decree of court, the purchaser is entitled to the possession thereof, even though the decree confirming the sale does not direct possession to be delivered to him.^^* If an appeal in the cause has been taken and perfected before the purchaser obtains possession, he can not then properly have possession; but if possession be obtained before the appeal is perfected, the pur- chaser is entitled to retain it until the case is decided in the appellate eourt.*^^ § 721. How a purchaser may be compelled to pay the purchase money. If a purchaser at a judicial sale fail or refuse to pay the purchase money or any part of such money, he may be proceeded against by rule to show cause why he should not do so, and, in the event of his failure to do so, why the property should not be sold to satisfy the debt ; i'" or when authorized by the court 120 Langyher V. Patterson, 77 Va. Gratt. (Va.) 177; Whitlock v. 470; Virginia Fire and Marine Ina. Johnson, 87 Va. 323, 12 S. E. 614; Co. V. Cottrell, 85 Va. 857, 9 S. E. Eakin v. Eakin, 83 W. Va. 512, 132, 17 Am. St. Rep. 108. See ante, 98 S. E. 608. §§ 713, 714, ajid cases cited. 129 Hudgins v. Merchant, 28 i-T Langyher V. Patterson, 77 Va. Gratt. (Va.) 177. 470. 130 Williams v. Blakey, 76 Va. 128 Hudgins v. Merchant, 28 254; Clarkson v. Eead, 15 Gratt. 939 Special Commissioneks § 723 to do so, suit may be brought on the purchase money notes or other security taken at the sale, by and in the name of the special commissioner in whose name they are given. ^^^ § 722. How a special commissioner may be proceeded against for breach of duty. A special commissioner, as we have already seen,^'^ is the mere agent or officer of the court, and no decree can, therefore, be rendered against him unless he has first been charged with some default or breach of duty, and a rule or other process has been served on him to answer such charge.^"^ § 723. The disposal of the cash payment of the purchase money by the special commissioner. There should be no money paid out by the commissioner until after the s'ale has been confirmed.^'* In the case of Arnold v. Casner, cited in the foot-note, it is decided that "the proper rule for the court in directing a sale of real estate, is to direct, in the decree ordering the sale, that the cash payment shall be (Va.) 288; Glenn v. Blackford, 23 isi Clarke v. Shanklin, 24 W. Va. W. Va. 185; Gilmer v. Baker, 24 30; Blair v. Core, 20 W. Va. 265; W. Va. 84; Stout v. Phillippi Mfg., Clarksons v. Doddridge, 14 Gratt. etc., Co., 41 W. Va. 348, 23 S. E. (Va.) 42; Blue v. Campbell, 57 W. at p. 574 ; Richardson v. Jones, 106 Va. 34, 49 S. E. 909. Va. 540, 56 S. E. 343; Lowman v. But "without authority of the Funkhouser, 78 W. Va. 742, 747, 90 court appointing him, a special S. E. 340; ante, § 708 and cases commissioner to sell land has no cited. authority to institute and prose- "Commissioner having been in- cute suits. Such authority must be duced to execute deed conveying the specifically conferred, or necessarily property to the purchaser, by the implied from some other power spe- latter's fraud or willful misrepre- cifieally given by decree." Monroe sentation, or by his misrepresenta- v. Hurry, 72 W. Va. 821, 79 S. E. tion upon an honest mistake of fact 830. as to the payment of the purchase 122 Ante, § 698. money, purchaser can not rely on 133 Gilmer v. Baker, 24 W. Va. the deed as an estoppel, but may 84; Tyler v. Toms, 75 Va. 116. be proceeded against by rule to i^* Arnold v. Casner, 22 W» Va. have the deed annulled and the 444. See Jones v. Blankenship, 79 property subjected to sale." Wil- W. Va. 541, 91 S. E. 389. liams V. Blakey, supra. § 725 Equity Procedure 940 retained by the commissioner making the sale, or be paid into bank to the credit of the suit, subject to the future order of the court. The money being thus under the control of the court, will, upon the confirmation of the report or upon setting aside the sale, be disposed of in the way that shall then seem proper. ' ' § 724. The removal of a special commissioner. If for any cause a special commissioner ought to be removed, the court will ordinarily award a rule against such commis- sioner to show cause why he should not be removed, before re- moving him and appointing some one else in his place.^'^ But the court has the power to remove him without notice for good cause shown, and the commissioner can not appeal from an order of removal so made.^^^ Unless the discretion of the court in this respect is plainly abused, to the prejudice of the parties to the litigation, it will not be disturbed by an appellate court.^^^ § 725. The compensation of a special commissioner. It is provided by statute in West Virginia that "for the services of commissioners or officers under any decree or order for a sale, including the collection and pajdng over of the pro- ceeds, there shall not be allowed any greater commission than five per centum of the amount received by them, unless the court otherwise order. And if a sale be made by one commis- sioner or officer and the proceeds be collected by another, the court under whose decree or order they acted, shall apportion the commission between them as may be just."^^^ Under the present statute, the iso Arbogast v. McGraw, 47 W. commissioner is required, under Va. 263, 34 S. E. 730. penalty, to deposit the proceeds of is? Idem. sale in some bank or banks in the i38 Acts of W. Va., 1019, c. 70. county wherein the suit is insti- The statute in Virginia is simi- tuted and to keep it there until lar, except that it provides for only distributed in compliance -vvith a a two per cent, commission on decree of court. W. Va. Code, lOlfi, amounts in excess of three hundred c. 132, § 1; Acts im.-5, c. 76. dollars. Va. Code, 1904, § 3404. i3n Connell \. Wilhelm, ?6 W. Va. Under this statute it is error to 598, 15 S. E. 245. allow full commissions and an ad- Ml Special Commissioners § 726 § 726. Special commissioners for the assignment of dower. It frequently occurs that dower is assigned in suits for par- tition, when the same commissioners assign dower who make partition among the tenants in common or coparceners. But often suits in equity are brought for the sole purpose of having dower assigned. When the court in it.s decree adjudicates or' finds that the plaintiif is entitled to dower, it then usually ap- points three or more commissioners to estimate the value of the estate, and to set off the dower by proper metes and bounds. ^^' The commissioners ought to be sworn and their report should show that they were sworn.^*" (litional sum for extraordinary ef- 139 Moore v. Dick, 134 111. 43, 24 forts made in effecting the sale. N. E. 768; Tod v. Baylor, 4 Leigh. Womack v. Paxton's Exr., 84 Va. (Va.) 498; Heisen v. Heisen, 145 9, 5 S. E. 550; Young v. Young, III. 658, 34 N. E. 597, 21 L. E. A. 109 Va. 222, 63 S. E. 748. See 434, 440; Fitzhugh v. Foote, 3 Call Sulzberger & Sons Co. v. Fairmont (Va.) 13; 2 Daniell, Ch. PI. and Packing Co., 103 S. E. 121 (W. Va. Pr. (6th Am. Ed.), 1167, 1151. 1920). 140 7 Enc. PI. and Pr., 185. t^APTER XXX INJUNCTIONS § 727. By what judge or court an injunction may be awarded. § 728. The court having jurisdiction of a bill for an injunction. § 729. The clerk to whom the order awarding an injunction must be directed. § 730. The manner of applying for an injunction. § 731. As to giving notice of the application for an injunction. § 732. The order awarding the injunction. § 733. The injunction bond. § 734. The injunction bond further considered. § 735. The injunction bond further considered. § 736. As to modifying or changing the scope of an injunction. § 737. Under what circumstances an injunction ought to be dissolved. § 738. As to the continuance of a motion to dissolve an injunction. § 739. As to the continuance of a motion to dissolve an injunction — further considered. § 740. Dissolution of an injunction because of laches and defect of parties. § 741. When an injunction may be dissolved. § 742. In what jurisdiction an injunction may be dissolved. § 743. When notice of motion to dissolve necessary. § 744. As to the dismissal of the bill upon the dissolution of the injunc- tion. § 74.5. The order dissolving the injunction. § 746. The effect upon the injunction of the death of parties. § 747. Re-instatement of an injunction. § 748. As to awarding injunctions against actions at law. § 749. The final hearing of the injunction suit. § 750. The final decree in an injunction suit. § 751. The injunction order must be obeyed while in force. § 752. What constitutes the violation of an injunction. § 753. The violation of an injunction is punishable as a contempt of court. § 754. How the violation of an injunction is punished. § 755. The procedure in matters of contempt for violating an injunction. § 756. Effect of an appeal from an order dissolving an injunction. § 757. What court has power to punish for contempt. § 758. The assessment of damagei upon the dissolution of an injunction. § 759. The assessment of damages upon the dissolution of an injunction further considered. 942 943 Injunctions §727 § 727. By what judge or court an injunction may be awarded. It is provided by statute in the Virginias that every judge of a circuit court ' shall have a general jurisdiction in awarding injunctions, whether the judgment or proceeding enjoined be in or out of his circuit, or the party against whose proceeding the injunction be asked, reside in or out of the same.^ And it necessarily follows that a court when in session possesses powers, as to the mere matter of awarding an injunction, commensurate with or greater than those of the judge of such court when acting in vacation.' When a circuit court* or a judge thereof shall refuse to award an injunction, a copy of the proceedings in court, and the original papers presented to the judge in vaca- tion, with his order of refusal, may be presented to a judge of the supreme court of appeals, who may thereupon award the injunction.^ The judges of the court of appeals, or any one of 1 And in Virginia, every corpora- tion court also. 2W. Va. Code, 1913, c. 133, §6; Va. Code, 1!)04, § 3437. ' 1 Bart., Ch. Pr. (2nd Ed.), 447; Randolph v. Tucker, 10 Leigh (Va.) 655; Cocke v. Pollok, 1 H. and M. (Va.) 499. •» In Virginia, the statute includes not only circuit, but corporation courts also. 5W. Va. Code, 1913, c. 133, §7; Va. Code, 1904, §3438; Mayo v. Haines, 2 Munf. (Va.) 423; Web- ster V. Couch, 6 Rand. (Va.) 519. "An injunction refused by a judge of a circuit court is pre- sented to a judge of the Supreme Court of Appeals, who also refuses it. The injunction may be awarded by another judge of the Court of Appeals. Jaynes v. Brock, 10 Gratt. (Va.) 211. "When a. chancellor refuses to re- instate an injunction, on new proofs of the allegations on a bill, a judge of the Court of Appeals has a right, on an appeal to him, to re- instate it." Webster v. Couch, 6 Rand. (Va.) 519. See Amherst Coal Co. V. Prockter Coal Co., 81 W. Va. 292, 94 S. E. 145. Upon an appeal from an interlocutory order dis- solving an injunction an appellate court may reinstate the injunction and remand the cause for further proceedings. Idem. An appeal does not lie to the ac- tion of a circuit court or judge thereof in vacation, refusing to grant an injunction. McDaniel v. Ballard, 4 W. Va. 196. Nor to the action of the court or judge in granting an injunction. City of Wheeling v. Chesapeake & P. Tel. Co. of W. Va., 81 W. Va. 438, 94 S. E. 511. See also. Wilder v. Kelley, Judge, 88 Va. 274, 13 S. E. 483, in which it is decided that where a judge of a circuit court refuses to award an injunction, the remedy is by appli- cation, accompanied by the original application and the order of re- §728 Equity Procedure 944 them, out of court, may award injunctions upon the refusal of a circuit court or judge thereof to do so, but this power is not possessed by the court of appeals sitting as a court.* § 728. The court having jurisdiction of a bill for an injunction. Jurisdiction of a bill for an injunction to a judgment shall be in the circuit court '' of the county in which the judgment is rendered,* and as to any other matter in the county in which the act or proceeding is to be done, or is doing or is appre- hended.' Thus, the chancery court of the city of Richmond can fusal, to a judge of the supreme court, who may review and reverse the action of the circuit judge, and award the injunction; which in- junction, so awarded, it is the province of the circuit judge to en- force and restrain any disobedience thereto, by attachment or other process. Nor does it matter that the injunction in question is tlie second or supplemental bill for an injunction; and where the circuit judge refuses to enforce obedience to such injunction so awarded by a judge of the supreme court, the writ of mandamus will be issued. See also, Amherst Coal Co. v. Prockter Coal Co., 81 W. Va. 292, 94 S. E. 14.5. 6 Mayo V. Haines, 2 Munf. (Va.) 423; McDaniel v. Ballard, 4 W. Va. 196. 7 In Virginia, the circuit court or corporation court. 8W. Va. Code, 1913, c. 133, §4; Va. Code, 1904, §3436. 9 See same citations. In Beekley v. Palmer, 11 Gratt. (Va.) 625, Lee, J., in construing this statute, says : "For the purpose of determining the court which shall have jurisdiction of a bill of injunction, and of ascertaining what shall be the condition of the injunction bond, and before what clerk it shall be given, the act in effect classifies injunctions under two heads: first, injunctions to judgments; second, other injunc- tions to independent or collateral acts or proceedings, having no rela- tion to judgments, which are to be done or are doing or apprehended. See § 4 and § 10. Of the latter class are injunctions to stay waste, to prevent a nuisance, to arrest a sale improperly about to be made by a. trustee, to restrain the doing of an unlawful act prejudicial to the complainant, and for which, if done, he could have no adequate compensation in damage, and the numerous other matters having no reference to any previous judg- ments at law, which constitute the proper subjects of injunction; and these are plainly the matters con- templated by the act when it speaks of acts or proceedings about to be done or apprehended. In the latter cases, the jurisdiction is assigned to the courts of the county in which the act or proceeding is about to be done or is apprehended, the in- junction bond is to be given before the court in which the injunction suit is instituted, and the condition of the bond is to oe such as the 945 Injunctions §728 not enjoin an act to be done in the county of Prince Geoi'ge.^" This statute contemplates only a pure bill of injunction — not a bill seeking other relief, to which the injunction is merely ancillary.^^ Thus, where a suit is brought in one county to set court or judge awarding the injunc- tion shall prescribe. In the former the jurisdiction is to be in the court of the county in which the judg- ment was rendered, the bond is to be given before the clerk of the court in which the judgment is, and it is to be with condition to pay the judgment (in case the injunc- tion be dissolved) and all costs that may be awarded and all damages that shall be incurred, and with a further condition, if a forthcoming bond have been given, to indemnify the sureties in such forthcoming bond. » * » "No doubt there may be eases in which the court of a particular county, having jurisdiction upon other grounds, may rightfully en- join proceedings on a judgment of another county, where such a meas- ure is appropriate to the relief proper to be administered in the cause; but where the sole ground of relief is the right to enjoin pro- ceedings on the judgment whether for a matter of equity existing an- terior to its rendition or subse- quently arising, and it is sought by a party who or whose property is liable to execution upon it, I think it clear the case is one of an in- junction to the judgment, within the meaning of the act, and that the jurisdiction of the suit is in the courts of the county in which the judgment was rendered; and that a court of another county to which the execution might chance to be sent, and in which it was levied on property of a defendant, has for that cause no right to entertain jurisdiction of the case." See Way- land Oil & Gas Co. V. Eummel, 78 W. Va. 196. 88 S. E. 741. ION. & W. E. Co. V. Postal Tel. Cable Co., 88 Va. 936, 14 S. E. 690. Nor the Common Pleas Court of Kanawha county, acts and proceed- ings in Lincoln county. Wayland Oil & Gas Co. V. Pummel, 78 W. Va. 196, 88 S. E. 741. Under Va. Code, 1887, § 3436, as amended by Acts 1899-1900, p. 966, providing that jurisdiction of a bill for an injunction to restrain any- act or proceeding shall be in the circuit court of the county in which such act or proceeding is to be done or is being done or apprehended, the circuit court of a county has juris- diction of a suit to enjoin the clerk of such county from conveying cer- tain delinquent lands to an appli- cant for the purchase thereof. Baker v. Briggs, 99 Va. 360, 38 S. E. 277. iiMuller V. Bayly, 21 Gratt. (Va.) 521; Winston v. Midlothian Coal Mining Co., 20 Gratt. (Va.) 686; Beckley v. Palmer, 11 Gratt. (Va.) 625; Pulliam v. Winston, 5 Leigh (Va.) 324; Singleton v. Lew- is, 6 Munf. (Va.) 397; Hough v. Shreeve, 4 Munf. (Va.) 490; To- ledo Tie and L. Co. v. Thomas, 33 W. Va. 566, 11 S. E. 37, 25 Am. St. Pep. 925; State v. Fredlock, 52 W. Va. 232, 43 S. E. 153, 94 Am. St. Rep. 932; Wayland Oil & Gas Co. V. Pummel, 78 W. Va. 196, 88 §728 Equity Peoceduee 946 aside a deed on the ground of fraud, and the bill asks for an injunction to restrain the sale of real estate in another county, as ancillary to the relief sought, the court of the county where the defendants or some of them reside, and in which the suit is brought, has jurisdiction of the cause, and the order for the injunction properly proceeds from the court of that eounty.^^ And in ease the judge of the circuit court of the county in which the judgment is rendered be interested, a circuit court of the county of an adjoining circuit has jurisdiction to enjoin a judgment rendered in the court of the circuit where the judge is interested and hence disqualified to sit in the case.^^ In every case of a pure bill of injunction, the suit must be brought in the county in which the judgment is rendered, when the object of the bill is to enjoin the judgment;^* and if it be for S. E. 741. See Woodcock v. Bar- rick, 79 W. Va. 449, 91 S. E. 396; State, ex rcl. Woodcock, t. Barrick et al., 80 W. Va. 63, 92 S. E. 234. "Where a bill seeks relief and asks for an injunction to restrain the sale of real estate in another county, as ancillary to the relief sought, the court of the county or city where the defendants, or some of them reside, has jurisdiction of the cause; and the order for the injunction properly proceeds from the court of that county or city.'' Winston v. Midlothian, etc., Co., 20 Gratt. (Va.) 686. See Woodcock v. Barrick and State, ex rel. Wood- cock V. Barrick, supra. Under the statute, Va. Code, 1887, § 3436, providing that the jurisdiction of a bill for an injunc- tion to any judgment, act or pro- ceeding shall be in the circuit court of the county, or in the circuit or corporation court of the corpora- tion, in which the judgment is ren- dered or in which the act or pro- ceeding is to be done, or is doing or apprehended, an injunction to re- strain entry on land can not be maintained in a county other than that in which the land is situated. Norfolk, etc., R. Co. v. Postal Tel. Cable Co., 88 Va. 932, 14 S. E. 689; N. & W. R. Co. V. Postal Tel. Cable Co., 88 Va. 936, 14 S. E. 690. See also, Beckley v. Palmer, 11 Gratt. (Va.) 625. 12 Winston v. Midlothian Coal Mining Co., 20 Gratt. (Va.) 686. The scope of an injunction in such a case may extend to inhibi- tion of a sale or encumbering of property in another state, and to the prosecution in another state of litigation affecting the status of such propeity. Woodcock v. Bar- rick, 79 W. Va. 449, 91 S. E. 396. 13 Graham v. Citizens' Nat. Bank, 45 W. Va. 701, 32 S. E. 245. 1* Beckley v. Palmer, 11 Gratt. (Va.) 625; Wayland Oil & Gas Co. i. Rummel, 78 W. Va. 196, 88 S E. 741. '947 Injunctions § 730 any other purpose, then in the county where the act is doing apprehended.^^ or § 729. Tte clerk to whom the order awarding an injunction must be directed. "Whenever an order is made awarding an injunction by a judge in vacation, or by a court in term time, on a bill which has no other object than the procurement of an injunction, or when the order awarding an injunction is allowed by a judge of the court of appeals on such a bill, such order shall be directed to the clerk of the court in which the judgment shall have been rendered, if it be sought to enjoin a judgment, otherwise to the clerk of, the circuit court of the county wherein the act or proceeding is doing or apprehended,^* and the subsequent pro- ceedings must be had in that county.^' § 730. The manner of applying for an injunction. The usual mode of applying for an injunction is by petition or motion accompanied by bill of complaint, duly verified,^' and in vacation the application is always made in this way.^^ The bill sets forth the grounds for the injunction and the special prayer therefor;^" and, if the case in which the injunction is sought be not ready for hearing, it is usual to satisfy the, court or the judge of the plaintiff's equity by proper affidavit ap- pended to the bill.^^ IB Norfolk & W. R. Co. v. Postal ing >'. Tate, 65 Ala. 417, 39 Am. Tel. Cable Co., 88 Va. 032, 14 S. E. !l'^P-„^5 ^^y^"* ^; ^^""P}^' ^l, I"' „ , ^ . „„\t o^,^ 32 J Oil Run Petroleum Co. v. Gale, 689 ; Baker v. Briggs, 90 Va. 360, g ^_ y^^ g^g. 38 S. E. 277 ; Wayland Oil & Gas 19 See same citations. Co V. Rummel, 78 W. Va. 196, 88 20 2 Beach, Mod. Eq. Pr., §766; Q -r^ -., Boiling V. Tate, 65 Ala. 417, 39 Am. ■„ ,; ^ , ,«,o ,oo on Rep. 5; Bryant V. People, 71 111. 32. low. Va. Code, 1913, c. 133, §9; ]; g jjeach, Mod. Eq. Pr., §767; Va. Code, 1904, § 3439; Randolph v. i Bart., Ch. Pr. (2nd Ed.), 448; W. Tucker, 10 Leigh (Va.) 655. Va. Code, 1013, c. 133, §3; Va. iTj^em '^'°^^'^' ^""'*' S3440. The granting „■ ,^,^ _ ,„_ an injunction lies within the sound isl Beach, Mod. Eq. Pr., §85; ^jigeretion of the court. Clayborn 1 Bart., Ch. Pr. (2nd Ed.), 44S; 2 v. Camilla Red Ash Coal Co., 105 nanioll, Ch. PI. and Pr. (6th Am. S. E. 117 (Va. 1920). m.), 1666, 1667, and notes; Boll- . ."!*'? no objection to a bill of injunction that it is sworn to by a § 731 Equity Puocedure 948 § 731. As to giving notice of the application for an injunction. Whether the application for an injunction be made in term time, or in vacation, the court or judge may require that rea- sonable notice be given to the adverse party, or his attomey-at- law or in fact, of the time and place of moving for it before the injunction is awarded, if in the opinion of the court or judge it be proper that such notice should be given.^^ And if the application contemplates the appointment of a receiver as well as the awarding of an injunction, notice of the time and place of the application should be given, unless the case be so urgent as not to admit of delay.^^ As perceived from the language of the statute, the matter of requiring notice of an application for an injunction to be given is left to the discretion of the court; yet, judging from the author's personal experience and observation of the practice in West Virginia, it is not usual to require- notice of the appli- cation or motion before awarding an injunction, for the reason, presumably, that a bond with ample surety, conditioned to pay person not one of the plaintiffs, if records, when such is the appropri- the affidavit be good in otiier re- ate mode of proof. See also, Charles spects." C. & O. R. E. Co. v. Huse, v. Sheriff, etc., 12 Md. 274; Yoiiiig- 5 W. Va. 579. blood v. Scliamp, 2 McCart. 42." See Oil Run Petroleum Co. v. It is sufficient if the affidavit be Gale, 6 W. Va. 544. in the form prescribed by statute. The court in this case, quoting W. Va. Code, 1913, c. 125, § 42. from High on Injunctions, says in "A bill of injunction may be its opinion: "Wliile the usual sworn to by the agent or attorney course is to grant an injunction of the plaintiff; but, if so, it must only upon a bill duly verified, it appear from the verification that would seem that the oath of com- the person verifying the bill knows plainant or otlier person conver- the contents thereof; otherwise the sant with the facts may be dis- verification is fatally defective." pensed with if the confidence of the Baltimoie Bargain House v. St. court can be otherwise obtained. Clair, 58 W. Va. 565, 52 S. E. 660; Thus documentary evidence estab- Southern Ry. Co. v. Washington, A. lishing complainant's equities and & Mt. V. Ry. Co., 102 Va. 483, 46 his right to relief will suffice to S. E. 784. warrant the court in granting an 22 w. Va. Code, 1913, e. 133, §3; injunction, and such evidence may Va. Code, 1904, § 3440. be presented by properly verified 2* Bristow v. Home Bldg. Co., 9L copies of private instruments, or of Va. 18, 20 S. E. 947. 949 Injunctions 731 all costs and damages that may be incurred or sustained by any one in case the injunction should be dissolved, is essential to the operation of the injunction. ^^ But Holt, J., in Williamson V. Jones,^* in his opinion in that case says: "The very general practice is to require notice, especially where the plaintiff seeks to enjoin and restrain such operations as from their nature are liable to entail serious loss in being unexpectedly stopped, such as collieries, furnaces, oil wells, and works of a like kind. In this instance constant working seems to be necessary to keep control of the accompanying salt water. Such practice is so exceptional in that class of cases that I take it for granted that some good reason for its adoption must in this case have been made to appear, as that the mere act of giving notice might have been of itself productive of some of the mischief apprehended. In such eases the courts, on a proper showing, award injunctions Tvithout notice."^' 25Daniell, Cli. Pr. (6th Am. Ed.), 1666, note. As to when bond must be required as well as its penalty and conditions, see post, §§ 733-736. See Kalbitzer v. Goodhue, 52 W. Va. 43.5, 44 S. E. 264. 26 39 W. Va. 260, 19 S. E. 436, 25 L. R. A. 222. " Citing 1 Fost., Fed. Pr., § 231. The principle here laid down in Tester, Fed. Pr., §231, is founded ■upon Equity Rule 55, governing the practice of equity in the Federal ■courts and of course is not really applicable to our state court, in the absence of a like rule or a statute •of the same import. Mr. Spelling, discussing the doc- trine of notice, says: "Unless a pressing necessity be shown, a tem- porary injunction should not be granted without notice; nor, ex- ■cept upon a case clearly made show- ing an equitable right to the inter- ference of the court, a substantial ground to apprehend such less or damage as can not be compensated for. And yet, where the injunction is granted upon notice to the de- fendant, the fact that many of the material averments of the bill are stated upon information and belief, will not prevent the granting of the relief, where defendant in no man- ner denies such averments." In- junction and Ex. Rem. (2nd Ed.), §29. The same learned author, further considering the subject of notice of applications for injunctions, says: "Even in the absence of statutory provisions on tlie subject, courts of equity have undoubted power, where the urgency and necessities of the case, as shown by the bill, or bill and accompanying affidavits, re- quire it, to grant a preliminary in- junction witliout notice to the de- fendant; but in the absence of pressing necessity it is improper to §732 Equity Procedure 950 § 732. The order awarding the injunction. If the injunction be awarded in term, it is entered in the order book as any other decree; but when allowed in vacation, the order is addressed to the clerk, is written out and signed by the judge, and frequently is endorsed upon the bill or peti- tion asking for it.^* While it is usual to commence the order with the style of the suit, and follow then with a recital of the presentation of the bill, its exhibits, and the reading or inspection thereof by the court or judge, with an award of the injunction in specific terms, requiring bond and fixing the do so. Where large interests are to be affected, notice will almost invariably be required. And where an order granting temporary relief is in fact final, the question of whether irreparable injury will re- sult from the delay for giving no- tice becomes in a measure jurisdic- tional, and not entirely discretion- ary with the court. In New York and California, and perhaps in some other states, it is provided by stat- ute that injunctions shall not be granted without notice, where the general and ordinary business of a corporation would thereby be sus- pended. But this provision was held not to apply to an injunction to a corporation engaged in 'buying and selling mining claims and working them,' restraining it from allowing any tailings from its hy- draulic machines, or earth or sedi- ment, from flowing into a certain rivor; nor to prohibit the granting without notice of a temporary in- junction to prohibit a railroad cor- poration from intersecting the tracks of another corporation. In North Carolina it seems a, fully-es- taMished error to grant an injunc- tion in any case without notice. In Indiana it is likewise held than a temporary injunction should never be allowed, except upon a case clearly made, showing an equitable riglit to the interference of the coxirt, and good ground to appre- hend such loss or damage as can not be compensated for; and then, not until the adverse party has had notice. But wliere a motion for an injunction is made in term time, and defendant is in court, and ac- tually appears by counsel and re- sists the motiqn, he will be deemed to have taken actual notice thereof and to have waived formal notice. In the federal courts the same rule formerly prevailed as in North Carolina, the judiciary act of 179S expressly requiring notice. But un- der a later statute providing that, whenever notice is given for a mo- tion for an injunction out of a, cir- cuit court or district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be en- joined until the decision upon the motion, the judge of a circuit court may issue a temporary restraining order in such case without notice thereof." Idem, § 1016. 28 1 Bart., Oh. Pr.(2nd Ed.), 450. 951 Injunctions § 733 penalty,^' still, it is necessary and is sufficient only to endorse on the bill the allowance of the injunction .as therein prayed for, or upon the usual terms when it is sought to enjoin a judg- ment, fixing the penalty of the bond.^" Upon a motion before a judge in vacation to require of the plaintiff a new injunction bond with an enlarged penalty, the proper order, if the old bond is insufficient, is that, if the new bond be not given within such reasonable time as the court under the circumstances shall fix, after such time the injunction shall be dissolved until such bond be given. '^ § 733. The injunction bond. In the VirginicDS, it is expressly provided by statute that "an injunction (except in the case of any personal representative, or other person from whom, in the opinion of the court or judge awarding the same, it may be improper to require bond) shall ■ not take effect until bond be given in such penalty as the court or judge awarding it may direct, with condition to pay the judgment or decree (proceedings on which are enjoined) ^^ and all such costs as may be awarded against the party obtaining the injunction, and also such damages as shall be incurred or 29 Bellona Co 'a case, 3 Bland act upon it as an order of liis own (Md.) 442; Gifford v. Hulett, 62 court, and increase the bond fixed Vt. 342, 10 Atl. 230; Wheeler v. by the supreme court. But this Steele, 50 Ga. 34. can not be done at rules, when the 30 Dart V. Houston, 22 Ga. 506; court is not in term. The case must Harman v. Howe, 27 Gratt. (Va. ) be matured as any other case, and 676, 684; Clarke v. Hoomes, 2 H. regularly proceeded with. Ruffin. and 51. (Va. ) 23. v. Commercial Bank, 00 Va. 708, 31 Mas on v. Harper's Ferry 10 S. E. 790. Bridge Co., 17 W. Va. 407; Wil- 32 In Virginia, with condition, as liamson v. Jones, 39 W. Va. 230, to the court shall seem just and 19 S. E. 436, 25 L. R. A. 222. proper in the case, either to pay An order of a judge of the su- the judgment or decree or to pay preme court granting an injunction the value of the property levied on which has been refused by the lower by the officer when there has been court is, when returned to the cor- a levy, or to have the property poration court and recorded there, forthcoming to abide the future or- in effect, an order of that court; der or decree of court. Va. Code, and the judge of that court may 1904, § 3442. § 734 Equity Procedure 952 sustained by the person enjoined, in case the injunction be dissolved, and with a further condition, if a forthcoming bond has been given under said judgment or decree, to indemnify and save harmless the sureties in said forthcoming bond and their representatives, against all loss or damages in consequence of said suretyship; or if the injunction be not to proceedings on a judgment or decree, with such condition as the said court or judge may prescribe. "^^ An injunction ought not to be made to take effect until bond shall have been given ; but if by accident it is so made to take effect, this is not a fatal error to the order awarding it, but a reasonable time should be allowed in which to give a sufficient bond after the service of a rule or notice to do so.'* If a bond be given by a personal representative upon the award of an injunction, such bond will be void, both as a statutory bond and at common law.'^ § 734. The injunction bond further considered. It has been held in "Virginia that an omission in the bond which can clearly be ascertained from the context will be sup- plied by the court, and will not vitiate such bond.'^ The obligors are estopped from denying that the bond is in proper form or substance, for inasmuch as they took the injunction, 33W.Va. Code, 1913, c. 133, §10; seHarman v. Howe, 27 Gratt. Va. Code, 1904, §3442. It is error ^y^ ) g^g to decree a preliminary injunction t> j. ii, ttt j. tt- ■ . without requiring a bond. Conley ^"* ""= ^est Virginia court has V. Brewer, 85 W. Va. 725, 102 S. E. refused to depart from the e.xpress 607. language of the bond, except to the ^J\?- !?• \ ?• "^"-t"' ^^"""i,.^ extent of construing contradictory W. Va. 234. But see Lomax v. Pi- , . ^ ° ,. ,. ■ cot, 2 Rand. (Va.) 247. *"■ ambiguous terms or disregarding The power to grant injunctions in surplusage, vacation and to require a bond to "Absolute voids in sueh a bond be given carries with it, as a neces- can not be filled by insertion or ad- sary incident, the right to hear and ,.,. r ., • , • , determine in vacation a motion to <^'*'™ °^ *'""§» ^^'I'x^^' acccordmg require a new bond to be executed to law, should have been put into with an enlarged penalty. Hutch- it, or which it is merely supposed inson V. Landcraft 4 W. Va 316; the parties intended to include." Mason v. Harper s Ferry Bridge t> n j t «n ,„ ^-r »-_ Co , 17 W. Va. 407. Ballard v. Logan, 68 W. Va. 655, ">'5 State v. Johnson, 28 W. Va. 56. 70 S. E. 558. 953 Injunctions § 735 they can not disclaim their bond.^^ If conditions be inserted in the bond not required by statute, or others omitted that are required, it will not thereby be rendered void, but will be held valid to the extent of the conditions which it properly con- tains.^* And if the bond does not strictly pursue the directions of the statute, it will, nevertheless, be held g«od.^^ Upon the final hearing of the cause, an injunction may be granted or perpetuated upon the same terms as any other relief prayed for in the bill, and no bond in such ease is necessary, as the granting of the injunction upon the final hearing is a final adjudication of its propriety. ■*" § 735. The injunction bond further considered. The bond should be given before the clerk, and if the injunc- tion be to a judgment or decree, before the clerk of the court in which it is rendered; and in other cases, before the clerk of the court in which the suit is wherein the injunction is awarded.*^ But the fact that the bond has been given before the court will not render it invalid.^^ The penalty of the bond, when the injunction is to a judgment, should be sufficient to cover the judgment and interest thereon, and it is usual in 3' Wray v. Davenport, 79 Va. 26 ; prescribed by the decree, as the lia- Columbia Amusement Co. v. Pine bility rests primarily on the bond Beach Investment Corp., 109 Va. and not on the decree prescribing 325, 63 S. E. 1002. its terms. Columbia Amusement But in West Virginia, such estop- Co. v. Pine Beach Investment Corp., pel could operate only as to the 109 Va. 325, 63 S. E. 1002. terms actually inserted in the bond. In most cases, it is sufficient for Ballard v. Logan, 68 W. Va. 655, the decree to direct, in general 70 S. E. 558. terms, execution of the bond "ac- 38 Holliday v. Myers, 11 W. Va. cording to law." Idem. 276; Gillespie v. Thompson, 5 Gratt. ^o Com. v. Franklin Canal Co., 21 (Va.) 132; Gibson v. Beckham, 16 Pa. St. 117; Boston v. Nichols, 47 Gratt. (Va.) 321; Ballard v. Lo- 111. 353. gan, 68 W. Va. 655, 70 S. E. 558. " W. Va. Code, 1913, c. 133, § 10; 33 White v. Clay, 7 Leigh (Va.) Va. Code, 1904, §3442; Harman ,-. 68; Fox V. Mountjoy, 6 Munf.(Va.) Hewe, 27 Gratt. (Va.) 676. 36. Nor is it necessary that the *2 Harman v. Howe, 27 Gratt. bond pursue strictly the condition (Va.) 676. § 736 Equity Procedure 954 such ease to require a penalty double the amount of the debt and interest,''^ In other cases, the penalty should be sufficieat, to cover all costs that may be incurred, and damages that may be sustained, in case the injunction should be dissolved, which, of course, must be determined by the facts and circumstances of each particular case. In Virgima, by virtue of statute now in force in that state, if the bond be not given within sixty days from the date of awarding the injunction, the order allowing the injunction be- comes void/* A bond of indemnity may be substituted for an injunction, if the ends of justice demand it, and particularly so in matters of public concern in which the public interests would be injured by continuing the injunction in force pending the litigation out of which the injunction arises." A judge may make an order in vacation requiring a new injunction bond to be given.*^ § 736. As to modifying or changing the scope of an injunction. As we have already seen,*^ an injunction may be modified in some cases by the substitution of a bond of indemnity. Where an injunction is made broader than the case made by the bill authorizes, on a motion to disisolve, the injunction should be limited so as to meet the case made by the bill, and wholly to overrule the motion to dissolve and to allow the excessive in- junction to stand is erroneous.*' So, where a preliminary injunction requires that to be dorje which can be done only after a full hearing upon a final decree, as changing the possession of realty, or depriving one in possession of its benefits, the legitimate purpose of the injunction being merely to preser ■13 1 Bart., Ch. Pr., § 494, note, ^s Campbell v. Railroad, 23 W. citing Billingslea v. Gilbert, 1 Bland Va. 448. (Md.) 566. See also, Harman v. -is Hutchinson v. Landcraft, 4 W. Howe, 27 Gratt. (Va.) 676. Va. 312. "Va. Code, 1004, § .3442; 1 ^t Ante. §735. Bart., Ch. Pr. {2nd Ed.), 495. is Neale v. County Court, 43 W. There is no such statute in West Va. 90, 27 S. E. 370. Virginia. 955 Injunctions §737 the existing status of the property until a full hearing of the case upon its merits, such an injunction is excessive and ought to he modified on motion.^^ § 737. Under what circumstances an injunction ougfht to be dissolved. While the dissolution of an injunction is a matter resting in the sound discretion of the court, ^^ still there are certain well- settled principles of practice which ought to be and are ob- served by the courts on motions to dissolve injunctions. Thusi, where upon the face of the bill it clearly appears that the case is without equity, a motion to dissolve the injunction will be sustained.^* So, an injunction will be dissolved on bill and 19 Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271. 00 Ingles V. Straus, 91 Va. 209, 21 S. E. 490; Jenkins v. Waller, 80 Va. 668. "The dissolution of injunctions, and applications to hear or to post- pone the hearing of motions to dis- solve them, are largely matters of judicial discretion, and the appel- late court will not disturb the ac- tion of the court below where it appears that the discretion has been soundly exercised, or where the con- trary does not appear in the rec- ord." Ingles V. Straus, supra. 51 Hendriclcs v. Compton, 2 Rob. (Va.) 192; Hudson v. Kline, 9 Gratt. (Va.) 379; Morehead v. De- Ford, 6 W. Va. 316; Null v. Elliott, 52 W. Va. 229, 43 S. E. 173; Poca- hontas Coke Co. V. Powhatan Coal & C. Co., 60 W. Va. 508, 56 S. E. 264, 10 L. E. A. (N.S.) 268, 116 Am. St. Rep. 901; Cranberry Fuel Co. V. Hollandsworth. 64 W. Va. !27, 61 S. E. 37. "A bill for an injunction to the judgment of a justice on the verdict of a jury, Which shows on its face that the plaintiffs have a plain, adequate remedy at law, is fatally defective, and on demurrer thereto the temporary injunction should he. dissolved and the bill dismissed." Shay V. Nolan, 46 W. Va. 299, 33 S. E. 225. "In case of a pure injunction to restrain a trustee from selling land under a deed of trust to secure a debt, on the ground of usury, where it appears that there is no usury in the debt, the injunction should be dissolved and the bill dismissed, so that the creditor may enforce his right imder the trust, no other cred- itors being interested in the case." Watterson v. Miller, 42 W. Va. 108, 24 S. E. 578. But if the bill, or bill and an- swer, show that the plaintiff likely has a good cause of action, which he will be able to establish, al- though he has defectively alleged it, the motion to dissolve, under proper circumstances, may be con- tinued in order to give him an opportunity to amend his bill. Dickinson v. Foster, 81 W. Va. 739, 95 S. E. 196. §737 Equity Peocedure 956 answer sworn to, where the answer fully, fairly, plainly, dis- tinctly and positively denies all the material allegations of the bill on which the injunction was granted, and such allegations of the bill are not supported by proof.^^ In Shonk v. Knight, 52 Wise V. Lamb, 9 Gratt. (Va.) 294; Hogan v. Duke, 20 Gratt. (Va.) 244; Hughes v. Tinsley, SO Va. 259; Moore v. Steelman, 80 Va. 331 ; Spencer v. Jones, 85 Va. 172, 7 S. E. 180; Hayzlett v. Mc- Millan, 11 W. Va. 464; Shonk v. Knight, 12 W. Va. 667; Cox v. Douglass, 20 W. Va. 175; Livesay V. Feamster, 21 W. Va. 83; Schoon- over V. Bright, 24 W. Va. 698; Bryant v. Groves, 42 W. Va. 10, 24 S. E. 605; Kester v. Alexander, 47 W. Va. 329, 34 S. E. 819; Eakin V. Hawkins, 48 W. Va. 364, 37 S. E. 622; Robrccht v. Robrecht, 46 W. Va. 738, 34 S. E. 802; Cross- land V. Crossland, 53 W. Va. 108, 44 S. E. 424; Meyer v. Meyer, 60 W. Va. 473, 56 S. E. 209; Salinger V. North American Woolen Mills Co., 70 W. Va. 151, 156, 73 S. K. 312; Hudson v. Barham, 101 Va. 63, 43 S. E. 189, 99 Am. St. Rep. 849; Baker v. Berry Hill Mineral Springs Co., 112 Va. 280, 71 S. E. 626. "Where an answer to a bill for an injunction negatives all its eq- uities and is sworn to, it is entitled to the weight of an affidavit, under Code, 1887, § 3281, and on a motion to dissolve the injunction heard on bill and answer, the injunction should be dissolved." Thomas v. Eowe, 2 Va. Dec. 113, 22 S. E. 157. The debtor in a trust deed ob- tained an injunction on the allega- tion that in the lifetime of his cred- itor thev settled, and that the trust debt was settled. The answer of the administrator of the creditor denied the allegation on oath and called for proof. The plaintiff failed to produce satisfactory evidence of his settlement. Beld, that the bill should be dismissed. Flick v. Frid- ley, 83 Va. 777, 3 S. E. 380. A bill was filed to enjoin the sale of property conveyed to secure a debt alleged to be usurious. The plaintiff averred that he expected to make full proof of his allega- tion, and disclaimed all benefits of any discovery from the defendant. The injunction was awarded. But afterwards the defendant filed an answer denying the allegations of the bill, and the plaintiff relied on the testimony of a single witness unsustained by any corroborating circumstances. Held, that the in- junction should be dissolved and the bill dismissed. Thornton v. Gordon, 2 Rob. (Va.) 719. Upon a motion to dissolve an in- junction, a material allegation in tlie bill, which is not noticed in the answer, must be taken as true, and no other proof will be required. Randolph v. Randolph, 6 Rand. (Va.) 194. On a motion to dissolve an in- junction, a defendant is not re- quired to invalidate by full proof the allegations of the bill, but the burden of proving such allegations rests on the plaintiff. Tt is suffi- cient for the defendant to show that the evidence of the plaintiff is entitled to no credit. North v. Perrow, 4 Rand. (Va.) 1. 957 Injunctions § 738 cited below, it is decided that "there are some exceptions to this general rule, but it ought to be followed when great injury would result to the defendant if the injunction was continued till the hearing and no serious loss would be sustained by the plaintiff if it were dissolved, even if the cause should be decided in his favor on the hearing. "^^ If the allegations of the bill are not denied in the manner here stated, the injunction will not be dissolved. Thus, where the equity of the bill is not denied, but a new equity is set up by the answer to repel or avoid the equities of the bill, such answer read as an affidavit on a motion to dissolve is not of itself sufficient to sustain such motion.^* So, where the bill sets up a contract and the plaintiff's construction thereof, and the answer admits the con- tract and claims under it, 'but denies the correctness of the plaintiff's construction of it, such a denial does not entitle the defendant to a dissolution of the injunction. ^^ § 738. As to the continuance of a motion to dissolve an in- junction. The general rule is not to continue a motion to dissolve an injunction, unless from some very great necessity, for the reason that a court is always open to grant an injunction, and, of course, to reinstate it whenever it shall appear proper to do so, and for the further reason that the plaintiff should always be ready to prove his bill.^'^ But notwithstanding this well-recog- 53 12 W. Va. 667. For the ex- 56 Steelsniith v. Fisher Oil Co., ceptions mentioned in the text, see 47 W. Va. .391, 35 S. E. 15; Kester post, § 738. V. Alexander, 47 W. Va. 329, .'^4 5*Noyes v. Vickers, 39 W. Va. 30, S. E. 819; Pithole Creek Petroleum 19 S. E. 429; note to Roach v. Co. v. Rittenhouse, 12 W. Va. 313; Glos, 6 Am. and Eng. Dec. in Eq. Emmons v. Pirlcock, 93 Va. 146, 24 126 ; Grebe V. Roup, 46 W, Va. 488, S. E. 905; Ingles v. Straus, 91 33 S. E. 261. Va. 209, 21 S. E. 490. 55 Hughes V. Tinsley, 80 Va. 259. An application to continue a See Indian River Steamboat Co. v. motion for the dissolution of an in- East Coast Transp. Co., 28 Fla. 387. junction, because after the motion 10 So. at 491, 29 Am. St. Rep. was served, plaintiiT was unable to 258. obtain certain affidavits alleged to §738 Equity Procedure 958 nized principle, a motion to dissolve will be postponed until the hearing of the case upon the merits, if the plaintiff would otherwise lose all the henefit which would accrue to him should he succeed on the final hearing of the cause ;^^ or where the facts disclosed by the bill and answer afford a strong presump- tion that the plaintiff will establish his claim for relief on the final hearing, and it appears that he would suffer great and immediate injury by a dissolution of the injunction ;^* or when the defendant admits the equity in the bill, but sets up new matter of defense on which he relies, the injunction will be continued till the hearing.^^ Or when a dissolution of the injunction would in effect amount to a complete denial of the be material, will be denied where it appears that the injunction was granted long enough before the mo- tion to dissolve was made for plain- tiff to have procured the affidavits referred to, if he had chosen to do so. Emmons v. Pideoclc, 93 Va. 146, 24 S. E. 905. "Where the plaintiff has had from the filing of its original bill in July, 1870, up to the first of September, 1873, to prove the alle- gations of its bill, the motion to dissolve the injunction will not be continued, because of the insanity of a person by whom it expected to show its interest in the t-ubject of the suit, when it had ample time before the insanity of said person to have obtained his testimony."'" Pithole Creek Petroleum Co. v. Kit- tenhouse, supra. But the granting of a continu- ance lies within the sound discre- tion of the court. Woodcock v. Bar- rick, 79 W. Va 449, 91 S. E. 396; Emmons v. Pidcock, supra. 07 Shonk V. Knight, 12 W. Va. 667; Robrecht v. Robrecht, 46 W. Va. 738, 34 S. E. 802; Meyer v. Mever, 60 W. Va. 473, 56 R. E. 209; Dickinson v. Foster, 81 W. Va. 739, 95 S. E. 196. 58 See same citations. Where an injunction was granted on a bill alleging that the respond- ents were asserting ownership to land claimed to have bsen paid for by the complainant, and the doc- umentary evidence tended to estab- lish the fact of payment, though denied by the respondents, it was error to dissolve the injunction be- fore the cause was matured and came on for final hearing. Gray v. Ovcrstreet, 7 Graft. (Va.) 346. 09 Grobe v. Roup, 46 W. Va. 488, 33 S. E. 261, citing 2 Tuck., Bl. Comm., 478; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 1670, note, declaring that when the an- swer admits the equity of an in- junction bill, but sets up an avoid- ance of it, the injunction will be continued until the hearing. See Jl'Namara v. Irwin, 2 Dev. and Bat. (N. C.) 19; Minturn v. Seymour, 4 John. Ch. (X. Y.) 497; Lindsay V. Etheridge, 1 Dev. and Bat. (N. C.) 38; Rich v. Thomas, 4 Jones Eq. (N. C.) 71; Cornelius v. Post, 9 N. .J. Eq. 196. See, to the same effect. 959 Injunctions §739 relief sought by the bill,^" or where from the very nature of the case the injunction can not possibly do the defendant any harm/^ or where a dissolution would result in greater injury than a continuance of it to the hearing, ^^ the motion will be continued. § T39. As to the continuance of a motion to dissolve an in- junction further considered. An injunction properly granted, as a general rule, will not be dissolved until the defendant has answered the bill,^' as on Allen V. Crobcroft, Barnardiston Ch. 373; Armstrong v. Potts, 23 N. J. Eq. 92; Coleman v. Hudspeth, 49 Miss. 562: Speak v. Ransom, 2 Tenn. Ch. 210. And on a motion to dissolve, the facts disclosed in the answer are alone to be regarded, not the opinions of tiie defendants. Chase v. Manhardt, 1 Bland. (Md.) 335. soShonk v. Knight, 12 W. Va. 667; Robrocht v. Robreeht, 46 W. Va. 738, 34 S. E. 802; Meyer v. Meyer, 60 W. Va. 473, 56 S. E. 209. 01 Robreeht v. Robreeht, 46 W. Va. 738, 34 S. E. 802. Or when no great hardship can come to the defendant. Jleyer v. Jleyer, 60 W. Va. 473, .56 S.'e. 200. "When on bill and answer deny- ing all equity in the bill, there is a motion to dissolve an injunction, it is customary to dissolve; but for good cause the motion may be over- ruled, and the injunction continued till the hearing without any ad judication of the principles of the cause." Kahn v. Kerngood, 80 Va. 342. "Upon an applica'^ion to a Court of Equity to enjoin a judgment at law, and grant a new trial in the ease, it is error in the Court to per- petuate the injunction, set aside the judgment, and grant a new trial of the cause which had been termi- nated ; and to finally dispose of the suit in equity. "In such case the judgment at law is a security for anything the plaintiff at law may be entitled to; and a Court of Equity should con- tinue the injunction and direct proper issues; and upon the coming in of the verdict, perpetuate the in- junction, or dissolve it, in whole or in part, according to the finding of the jury." Knifong v. Hendricks, 2 Gratt. (Va.) 212, 44 Am. Dec. 385. "An injunction to a judgment for purchase money ought not to be dissolved until a good and sufficient deed for the land be tendered by the vendor." Grantland v. Wright, 2 Munf. (Va.) 179. Where an injunction is obtained to a sale under a deed of trust on grounds that are insufficient or un- sustained, the injunction, neverthe- less, should not be dissolved until the indebtedness is ascertained by a commissioner of the court. Wliite V. Meeh. Bldg. Assn., 22 Gratt. (Va.) 233. 62 Jenkins v. Waller, 80 Va. 668. 63 N. & W. Ry. Co. V. Old Do- minion B. Co., 97 Va. 89, 33 S. E. 385 ; Peterson v. Parriott, 4 W. Va. 42. §739 Equity Procedure 960 a motion to dissolve before an answer has been filed, the allega- tions of the bill must be taken as true/^ It is not necessary, however, that all the defendants answer the bill, if the real and substantial defendants have done so, denying all the ma- terial allegations thereof;*' or where one or more of the de- fendants within whose knowledge the facts charged especially or exclusively lie have answered, although other defendants have not;*" or where the defendant upon whom the gravamen of the charge rests has fully answered, and this, too, "where all the defendants are implicated in the same charge, and the an- swer of all can and ought to come in, if the plaintiff has not taken the requisite steps, with reasonable diligence, to expedite his cause. "*^ When by the pleadings the burden of proof is on the defendant moving to dissolve the injunction, a motion to dissolve ought not to be sustained on mere affidavits, as the plaintiff has the right to cross-examine the defendant 's witnesses 8* Peatross v. McLaughlin, 6 Gratt. (Va.) 64; Ludington v. Tif- fany, 6 W. Va. 11 ; Pocaliontas Coke Co. V. Powhatan Coal & C. Co., 60 W. Va. 508, 56 S. E. 264, 10 L. Tl. A. (N.S.) 268, 116 A)n. St. Eep. 901. ci' Livesay v. Feamster, 21 W. Va. 83. In Shonk v. Knight, 12 W. Va. 667, it is decided that "as a general rule an injunction ought not to be dissolved till all the defendants im- plicated in the cliarges made by the bill have answered, but there are well-established exceptions to this rule. First, the plaintiff must have been diligent in taking the neces- sary steps to procure the answers of all the defendants. Second, an- swers are required only of those defendants upon whom rests the .gravamen of the charges in the bill. And, lastly, no answer need be filed if the injunction on the face of the bill ought not to have been awarded." •■•o B. & 0. R. R. Co. V. Wheeling, 13 Gratt. (Va. ) 40, in opinion of court, citing 2 Rob., Prac, 242; Adams, Eq., 196, and note 1. «7 Idem. "A defendant who answers such a hill [of discovery staying an ac- tion at law] may, in lieu of a mo- tion to dissolve the injunction, move for an order to require the plaintiff to speed the cause as to a defendant not answering, under penalty of a dismissal thereof or dissolution of the injunction, en- forceable thereafter ■ by notice and motion. 16 Cyc. 463." Eskridge V. Thomas, 79 W. Va. 322, 91 S. E. 7. 961 Injunctions §739 and rebut their testimony."^ A motion to dissolve ought not to prevail where the plaintiff has not had time to take and com- plete his proofs in the exercise of due diligence, and asks that the motion to dissolve be continued for such purpose." And a 88 Grobe v. Roup, 46 W. Va. 488, 33 S. E. 261. As to the use of affidavits on a motion to dissolve an injunction, in Shinn v. Board of Education, 39 W. Va. 508, 509, 20 S. E. 604, the court in its opinion says: "It is also assigned as ground of error that the court, on the hearing of the motion to dissolve, permitted the plaintiffs to read, in support of their bill, two ex parte affidavits taken without notice. As generally used and understood, that consti- tutes the main distinction between a deposition and an affidavit. The one is evidence given under inter- rogatories, oral or written, taken down and certified by some officer duly qualified at a time and place of which the opposite party has no- tice, so that he may attend and cross-examine. And the giving of the evidence is compulsory on the witness. The affidavit is not com- pulsory on the witness, and there- fore it might be useless to give no- tice. Its distinctive characteristic is that it is voluntary and ex parte. Notice, however, is often required and given. The affidavit may be filed by order of the court, as was done in this case; and then the court may, and often does, for cause shown, permit the other party to cross-examine, and the testimony of the witness then becomes com- pulsory. See 1 Daniel, Ch. Pr. (6th Am. Ed.), p. 888, note. That kind of a notice operates to some pur- pose, and was given here. So that it can not be said, in that sense, that these two ex parte affidavits were read without notice; and no doubt defendant could, for good cause shown, have obtained leave to cross-examine. Still, I should think notice of the time and place of taking the affidavit the better practice, and, if before an officer who can take them, it resolves it into a deposition; but, so far as I have observed, such has not been our practice. How far and with what effect ex parte affidavits may be read in support of the bill and of the answer pro and con on a mo- tion to dissolve it, is not easy to say. See 2 Daniel, Ch. Pr. (6th Am. Ed.), 1668, and note; Id. 1671: 2 High, Inj. (3rd Ed.), §§1481, 1603 et seq.; Williamson v. Jones, supra, p. 231 (19 S. E. Rep. 436, 447 ) ; "Soyes V. Tickers, supra, p. 30 (19 S. E. Rep. 429)." o^Yaught V. Rider, 83 Va. 659, 3 S. E. 293, 5 Am. St. Rep. 305; Jenkins v. Waller, 80 Va. 675. In Jenkins v. Waller, svpra, the court, in commenting on the action of the court below in overruling a motion to dissolve the injunction and continuing it to the hearing, says: "The bills of complaint charged fraud, collusion, usury, technical irregularity, and that the judgments confessed were obtained with intent to hinder, delay and defraud creditors ; that the debts for which they were confessed are tainted with usury; that the circuit and corporation courts of Norfolk §740 Equity Procedure 962 motion to dissolve made by a party in contempt for violating the injunction order will not be entertained till the contempt is purged.^" § 740. Dissolution of an injunction because of laches and defect of parties. If it appear that necessary parties, who are interested in the subject matter of controversy and may be or are affected by the injunction, are not before the court, the court will order the injunction to be dissolved unless the plaintiff make such parties defendants to his bill by an amendment thereto.'^ If the city had no Jurisdiction to render the judgments ; that the executions were improperly and unlawfully issued, and were, therefore, null and void; and that there was a com- bination to sacrifice the assets. These allegations are sustained by the affidavits and surrounding cir- cumstances, so far, at least, as to justify the court in continuing the injunctions for the opportunity of testimony and final hearing of the cause. No time has been allowed for the taking of depositions, and none had been taken, and the causes were not ready for hearing. The appellees are entitled to time and opportunity to prove the allega- tions of their bills, and until this opportunity has been given, the questions at issue can not be ad- judicated in the circuit court. Xo question has been decided in t"he circuit court: and there is no point or material in the records of these causes upon which this court can base a decision. There are grave issues of fraud, of usury, of part- nership, of illegality in the judg- Tients, and of illegality in the exe- cutions: upon none of which have the parties been heard," "A motion to dissolve an injunc- tion made pursuant to previous no- tice, should not be continued for the parties to take testimony, un- less the plaintiff shows that he has testimony to sustain the injunction which he was unable to get before the motion was made; and even then it should not be continued, un- less there appears to be great neces- sity for so doing. Harden v. Wag- ner, 22 W. Va. 356. Topadely \. Tomlinson, 41 W. Va. 606, U S. E. 645; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 1675, note, citing Jacoby v. Goetter, 74 Ala. 427. '1 Harrison v. Morton, 4 H. and M. 48.3: McCoy v. McCoy, 29 W. Va. 794, 2 S. E. 809. In McCoy v. McCoy, supra, the court decides that "if an injunc- tion bo obtained to star proceedings on a judgment or decree, and the plaintiff neglects for an unreason- able length of time to summon other defendants, or to have !i Atkinson v. Beckett, 36 W. Va. 438, 15 s. E. irn. It") Cocks V. Simmons, 57 Miss. 183. Alford V. Jloore, 15 W. Va. 597. id Warren v. Syme, 7 W. Va ?8 Atkinson v. Beckett, 36 W. Va. 474. § 746 Equity Procedure 968 order dissolving the injunction is immaterial. The order need not state the reason or grounds for the dissolution, and it mat- ters not if the grounds be incorrectly stated, provided the disso- lution be in fact proper."^ The court may, in its discretion, dissolve the injunction upon certain terms imposed by the order upon the defendant. For example, where an injunction is issued against the construction of public improvements, the defendant may be required to give a sufficient bond, conditioned to pay all damages that may be recovered or assessed in favor of the plaintiff."' If the order is made in vacation, the court should not go further than to dissolve the injunction ;"* except that by statute there may be a consent of parties entered of record to hear the cause in vacation, when the injunction may be dissolved and a final decree entered in vacation.^"^ § 746. The effect upon the injunction of the death of parties. Upon the death of the plaintiff, it is the duty of his personal representative to revive the suit in his own name. The de- fendant may appear and upon his motion have an order entered in the cause to the effect that such representative shall appear within a certain time to be fixed by the court and cause the suit to be revived in his name ; and that, upon his failure to do so, the injunction stand dissolved.-'"^ Upon the death of the de- fendant, his personal representative may appear and obtain a like order as to the revival of the suit in the name of the personal representative of the defendant.^"' 102 Cave V. Webb, 22 Ala. 583; Ballard, 61 W. Va. 526, 57 S. E. Mack V. De Bardeleben Coal, etc., 143. Co., 00 Ala. 396, 8 So. 150, L. E. io5 Mount v. Radford Trust Co., A. 650. 93 Va. 427, 25 S. E. 244; ante, 103 Touch V. Rome St. R. Co., 84 § 600 ; Va. Code, 1904, § 3427 ; W. Ga. 233, 10 S. E. 726; Campbell v. Va. Code, 1918, o. 131, §27; W. Va. Pt. Pleasant, etc., R. Co., 23 W. Acts, 1917, c. 65. Va. 338. 108 Carter v. Washington, 1 H. See also, Nichols v. Wilson, 4 and M. (Va.) 203. Johns. Ch. (N. Y.) 115, 1 L. Ed. lo? Kenner v. Hord, 1 H. and M. 783; McMahon v. Spangler, 4 Rand. (Va.) 204; White v. Fitzhugh, 1 H. (Va.) 51. and M. (Va.) 1; Jackson v. Arnold, 104 Rollins V. Fisher, 17 W. Va. 4 Rand. (Va.) 195. 578; Mount v. Radford Trust Co., In this case last cited, the sylla- 93 Va. 427, 25 S. E. 244; Logan v. bus is as follows: "The principal 969 Injunctions §747 § 747. Reinstatement of an injunction. The courts, as we have seen/"^ are always open to reinstate an injunction in a pending cause. But while this is true, sucii reinstatement is not as a matter of course, but only upon further evidence or some new fact.^"^ The application may be made by sup'plemental bill, or by petition, according to the necessities of the case.^^" and surety to a bond obtain an in- junction to a judgment against them. The surety dies pending the suit in Chancery. After referring the cause to a Commissioner, excep- tions to tlie report on account of set-ofifs disallowed (some of which were claimed by the surety him- self), and the Court rejecting them, because not filed in time, the in- junction is in part dissolved, and in part perpetuated, without mak- ing the representative of the de- ceased plaintiff a party. This pro- ceeding is erroneous. A rule should have been given him, at the instance of the defendant, that unless he revived the suit by an appointed time, the injunction should stand dissolved." 108 Ante, § 738. 109 Tone v. Brace, Clarke Ch. (X. Y.) 503, 7 li. Ed. 184; Gallaher v. City of Moundsville, 34 W. Va. 730, 12 S. E. 859, 861, 26 Am. St. Eep. 942, citing Toll Bridge v. Free Bridge, 1 Rand. (Va.) 206; North V. Perrow, 4 Rand. (Va.) 4; 1 Bart., Ch. Pr., 470. "The granting of a motion to dis- solve an injunction, before final hearing of the cause, is not con- clusive of the party's right in the premises and can not be pleaded as res judicata upon his right to an injunction at the final hearing. "If an injunction is dissolved on coming in of an answer denying the equity of the bill, and testimony is afterwards taken and filed showing the right to such relief, the in- junction may be reinstated. "An order dissolving an injunc- tion, before final hearing, on filing of an answer denying the equity of the bill, is not conclusively final until the cause is ended, since the injunction may be reinstated pend- ing the cause or at the hearing; and if the decree ending the cause is simply a dismissal without preju- dice, such dissolution order is not a bar to an injunction in a new suit for the same purpose." Staley v. Big Sandy, E. L. & G. R. Co., l;3 \V. Va. 119, 59 S. E. 946. See Everett Waddy Co. v. Richmond Typographical Cnion, 105 Va. 188, 53 S. E. 273, 5 L. R. .A.. (N.s.) 792. iiflTone V. Brace, Clarke Ch. (N. Y.) 503, 7 L. Ed. 184. In Livingston v. Gibbons, 5 Johns. Ch. (N. Y.) 250, the appli- cation was by petition, and the prayer of it was denied because it did not state some ne ? and special reasons arising after the dissolu- tion. In Fanning v. Dunham, 4 Johns. Ch. (X. Y.) 35, the appli- cation was by supplemental bill, stating new facts; and an injunc- tion was allowed, although a former injunction had been dissolved upon the merits. In Bloomfield v. Snow- §748 Equity Procedure 970 § 748. As to awarding injunctions against actions at law. It is well settled that in a proper ease equity will enjoin the prosecution of an action at law."^ It is said that formerly the practice required a confession of judgment as a condition precedent to the issuance of an injunction in such a case.^*^ But however the practice may have been heretofore in this respect, no such unjust rule now obtains, and, stated in its strongest terms, such confession of judgment rests in the sound den, 2 Paige (Jf. Y.) 355, there was an application by petition, which was denied, because new parties were brought in, and it was sug- gested that a supplemental bill was necessary : and also it was decided that upon filing such supplemental bill, notice of the application should be given to the opposite parties. See also, Lowry v. McGee, 5 Yerg. (Tenn.) 238. The point considered essential in all these cases was the proper- presentation of some new facts to authorize the revival of the injunc- tion. Indeed, the court would hard- ly hear again a motion which they had once decided, upon the same facts, or upon facts which the party should have known at the time of the first motion. In a proper ease, an injunction, dissolved by the lower court may be reinstated by the appellate court and remanded for further proceed- ings. Amherst Coal Co. v. Prockter Coal Co., 81 W. Va. 202, 94 S. E. 145. In the case of Spencer v. Jones, 85 Va. 172, 7 S. E. 180, the appli- cation was made by amended bill and refused, hut not because of the manner of application. In the Virginias, it would be im- material how the application is made, owing to the utter disregard of their courts for mere matters of form. Where an injunction is awarded until the coming in of the answer, it is of course at an end upon the filing of the answer; but the plain- tiff may move to reinstate it. Beal v. Gibson, 4 H. and M. (Va.) 481. See Turner v. Scott, 5 Eand. (Va.) 332. A motion to reinstate an injunc- tion, on additional evidence ten- dered by the complainant, is in the nature of an original application, and, if refused, the complainant may apply to one of the judges of the court of appeals. Gilliam v. Allen, 1 Eand. (Va.) 414; Webster V. Couch, 6 Eand. (Va.) 510. See Amherst Coal Co. v. Prockter Coal Co., supra. Ill Penn v. Ingles, 82 Va. 60 ; Tillar v. Cook, 77 Va. 477; Staples T. Turner, 29 Gratt. (Va.) 330; Commercial Bank v. Cabell, 96 Va. 552, 32 S. E. 53; Hawkinberry v, Snodgrass, 39 W. Va. 332, 19 S. E. 417; Zanhizer v. Hefner, 47 W. Va. 418, 35 S. E. 4; Buskirk v. Sanders, 70 W. Va. 363, 73 S. E. 937. See Citizens' Trust & Guaranty Co. v. Goff, 81 W. Va. 366, 94 S. E. 756. 112 1 Bart., Ch. Pr. (2nd Ed.), 56. 971 Injunctions § 748 discretion of the court. ^^^ The decisions ot the courts have es- tablished the principle that a confession of judgment in the action at law will not be made a condition to the allowance of an injunction, when the defendant therein has a legal defense to such action, as well also as a distinct ground for equitable relief, should his defense at law prove unavailing; or where he denies any indebtedness or liability whatever upon the claim or demand sued on at law and the right to recover in any forum, either at law or in equity, but invokes the aid of a court of equity as the more appropriate tribunal, under all the cir- cumstances of the ease, in which to conduct the litigation. In such cases it is not considered safe to require a confession of judgment, and it is error to impose such a condition upon a party applying for an injunction.^^* But where the defendant in the action at law does not rely upon any legal defense thereto — ^and whether he does or not should appear in his bilP-'' — but opposes the claim sued on upon equitable grounds alone, the court, before granting the injunction, should require a confes- sion of judgment at law.^^^ But in any case in which a con- fession of judgment is required, the order should provide that the judgment be taken, "to be dealt with as the court shall direct. "^^^ And "though the order requiring the confessing 113 Dudley v. Miner, 93 Va. 408, operative Window Glass Co., 63 W. 25 S. E. 100; Great Falls Man. Co. Va. 266, 61 S. E. 329; Eastern Oil V. Henry, 25 Gratt. (Va.) 575; Co. v. Coulehan, 65 W. Va. 531, 64 Parsons v. Snider, 42 W. Va. 517, S. E. 836. 26 S. E. 2S5; Knott v. Seamands, Likewise, where the defendant at 25 W. Va. 99; Miller v. Miller, 25 law is entitled to affirmative relief. W. Va. 495 ; Home Gas Co. v. Man- Buskirlc v. Sanders, 70 W. Va. 363, nington Co-operative Window Glass 73 S. E. 937. Co., 63 W. Va. 266, 61 S. E. 329. H' Knott v. Seamands, 25 W. 11* Great Falls Man. Co. v. Henry, Va. 99. 25 Gratt. (Va. ) 575: Warwick v. no See authorities cited above un- Norvell, 1 Rob. (Va.) 308; Thorn- der this section, ton V. Thornton, 31 Gratt. (Va.) ht Miller v. Miller, 25 W. Va. 212; Staples v. Turner, 29 Gratt. 495; Parsons v. Snider, 42 W. Va. (Va.) 330; Dudley V. Miner, 93 Va. 517, 26 S. E. 285; Robinson v. 408, 25 S. E. 100; Parsons v. Sni- Braiden, 44 W. Va. 183, 28 S. E. dor, 42 W. Va. 517, 26 S. E. 285; 798; Dudley v. Miner, 93 Va. 408, Knott V. Seamands, 25 W. Va. 99 ; 25 S. E. 100. Home Gas Co. v. Mannington Co- § 749 Equity Procedure 972 of the judgment is absolute as a condition, on which the injunc- tion order shall take effect, and the court afterwards on the hearing or on a motion to dissolve the injunction is of opinion, that the plaintiff's defense to the action is legal, and that a court of equity has no jurisdiction to interpose by injunction, still the court ought not dissolve the injunction or dismiss the bill, until the plaintiff at law has caused the judgment at law, which he has obtained, to be set aside, and the common law case reinstated, as it was, when the injunction, was granted, and the setting aside of this judgment and this reinstatement of the common law case on the docket should be ordered by the chancery court. "^^* § 749. The final hearing of the injunction suit. When the cause has been matured for a final hearing, and is regularly set down to be heard^^^ upon bill, answer and repli- cation, and the answer denies the material allegations of the bill, in the absence of sufficient proof to support the bill, a decree against the plaintiff must be rendered j^^" and, of course, the injunction is necessarily thereby dissolved. The court will require the plaintiff to show on a final hearing that he has a clear right to an injunction, else the court will decline to make the injunction perpetual. ^^■'- If the court has a doubt as to the party's right to a perpetual injunction, it will not be granted.^^^ lis Miller v. Miller, 25 W. Va. Y.) 421, 3 L. Ed. 214, 24 Am. 495. Dec. 230. iio,4)7tc, §584. For a perpetual injunction the 120 Grimstone v. Carter, 3 Paige courts require that there should be Ch. (N. Y.) 421, 3 L. Ed. 214, no doubt in the case, and that the 24 Am. Dec. 230; Bressler v. Mc- plaintiff must make out a clear and Cune, 56 111. 475 ; Birnbaum v. Sale- unexceptionable right. Daniell, Ch. mon, 22 Fla. 610. Pr., 1681. "Courts will not exercise The hearing upon the merits this necessary authority when the must be upon "depositions regu- right is doubtful, or the facts not larly taken," and not upon affi- definitely ascertained." Burnham davits. Virginian Ry. Co. v. Echols, v. Kempton, 44 N, H. 02. "The 117 Va. 182, 83 S. E. 1082. right must be clear." Bonaparte v. 121 Spangler v. City of Cleveland, Camden R. Co.. Bald. (U. S.l 218. 43 Ohio St. 526, 3 N. E. .365: Grim- i== 2 Daniell, Ch. PI. and Pr. (hri. stone V. Carter, 3 Paige Ch. (N. Am. Ed.), 1681. 973 Injunctions § 751 § 750. The final decree in an injunction suit. An injunction can be made perpetual only by a final decree, upon a hearing of the merits of the cause, ^^' except by the ccn.- sent of the parties. ^^* A perpetual injunction forms a "art of the final decree, ^'^ and is one whereby the defendant is perpet- ually inhibited from the assertion of a right, or perpetually restrained from the commission of an act which would be con- trary to equity and good conscience. ^^^ By the final decree, the preliminary injunction may be in part dissolved and perpetu- ated in part.^^' It is ground upon which to refuse to per- petuate an injunction, that the act sought to be enjoined has already been consummated,^^* or that it has ceased, or that the plaintiff is no longer interested in the subject matter of the suit."' § 751. The injunction order must be obeyed while in force. It is the duty of all parties as to whom the injunction re- lates to obey it so long as it remains in force j^^" and it matters not with what irregularities the proceedings may be affected, or howsoever erroneously the court may have acted in granting the injunction in the first instance, if the court have jurisdic- tion, ^^^ it must, nevertheless, be implicitly observed, and the 123 2 Beach, Mod. Eq. Pr., § 787; 127 Perry v. Kearney, 14 La. Ann. ?no '7 J- ^■^t'''''"' ^^ "^'^' ^^' ^^^' 401; Myers v. Bland, 77 W. Va. 102 S. E. 607. 546, 87 S. E. 868. 124 1 Bart., Ch. Pr. (2nrl Ed.,. ,„„ _ , _, , _„ ^^ ,^ ^,„ 501, citing 2 Daniell, Ch. Pr., 1682. ''^ P<^°Pl^ ^- ^ark, 70 N. Y. 518; 125 Buffington v Harvey, 95 U. S. Thomas, Andrews & Co. v. Town of 99, 24 L. Ed. .381. West Norton, 110 Va. 147, 65 S. E. "An injunction, awarded upon an 466. interlocutory application, to remain 1,0 Reynolds v. Everett, 67 Hun effective until further order, is „-^. „, V -s^ cj nno ^n -kt t- merged in and superseded by subsc 294, 22 S. \. Supp. 306, 50 N. \. quent decree on merits awarding a St. Rep. 889; Piedmont, etc., R. Co. perpetual injunction. Having .served v. Speelman, 67 Md. 260, 10 Atl. as temporary restraint, its func- 77 293. tions then ceased." State v. Fried- L„ tt tutu j a^ sti. ^nn man, 74 W. Va. 11, 81 S. E. 830. '" ^0^^'= ^- ^iHard, 40 Vt. 662: 126 2 Beach, Mod. Eq. Pr., §787; Williams v. Lampkin, 51 Ga. 214, 2 Daniell, Ch. PI. and Pr. (6th Am. 53 Ga. 200. Ed. ) , 1680 et seq. isi Post, § 753. §752 Equity Peocedure 974 fact that it has been obtained erroneously affords no justifica- tion or excuse for its violation before it has been properly dis- solved.^^^ § 752. What constitutes the violation of an injunction. It sometimes becomes difficult to determine what constitutes a breach of an injunction, so as to justify proceedings for eon- tempt.^^' A general rule has been laid down, subject, however, to some exceptions, that the act complained of as a violation must be injurious to the rights of the plaintiff in the suit.-''* 132 High on Injunctions, § 847 ; idem (4th Ed.), i 1416. "And the party against whom an injunction issues will not be allowed to violate it on the ground of want of equity in the bill, since he is not at liberty to speculate upon the intention or decision of the court, or upon the equity of the bill, or to question the authority of the court to grant relief upon the facts stated, except upon applica- tion to dissolve the injunction." Idem. See Howe v. Willard, 40 Vt. 662; Erie E. Co. v. Eamsey, 45 N. Y. 654. See State v. Harper's Ferry Bridge Co., 16 W. Va. 864. 133 High on Injunctions, § 856 ; idem (4th Ed.), § 1432. 134 Hudson V. Plets, 11 Paige Ch. (N. y.) 180, 5 L. Ed. nO; Parker V. Wakeman, 10 Paige Ch. (N. Y.) 485, 4 L. Ed. 1060; Wilkinson v. First Nat. Fire Ins. Co., 72 N. Y. 506, 28 Am. Eep. 170; High on In- junctions (4th Ed.l, § 1432. "Where an injunction issued up- on a creditors' bill prohibits the de- fendant from transferring, assign- ing, delivering, or in any way in- terfering with or disposing of his property or effects, any active in- terference with tlie property, by the defendant or his agent, for the pur- pose of having the legal title to the same transferred to another, and thereby to deprive the complainant of the equitable lien lie has ac- quired thereon by the filing of his bill, is a violation of the letter as well as of the spirit of the injunc- tion. "Thus, where two defendants in- formed a creditor that they had property liable to be reached by execution, and consulted with each other and agreed to procure an execution to be issued, for the pur- pose of having such property sold thereon, and employed an agent tc procure the issuing of the execu- tion, and took and delivered the property to the sheriff who had the execution — held, that such defend- ants were guilty of a contempt of court in violating the injunction; and they were fined a sum equal to the value of the property delivered to the sheriff and to the costs of the proceedings upon the attaetj ■ nient issued against them. "The fact that the defendants in violating the injunction acted un- der erroneous advice of counsel will 975 Injunctions §752 In determining the question of its violation, the terms of the injunction will be considered/^" and it must appear that the act is within the terms of the injunction. ^^^ "But where the mandate of the court has been violated in spirit as well as in letter, the court will not permit the general terms of the writ to be controlled or restricted by reference to the particular nature of the grievance."^'' not protect tliem from a fine suf- ficient to compensate the adverse party for tlie injury sustained; al- thougli such advice may protect them from further punishment." Lansing v. Easton, 7 Paige Ch. (N. Y.) 364, 4 L. Ed. 100. 135 1-Iigli, Inj., §857; idem (4th Ed.), § 1433. 130 Idem. 137 Idem. "Where an injunction has been granted to stay proceedings in an action at law, the mere delivery of a declaration has been deemed a violation of the writ. And the service of a trial notice in the ac- tion enjoined, or obtaining a change of venue, is a breach of the man- date of tlie court. So where an in- junction has been obtained against execution under a judgment, the taking of any steps toward execu- tion beyond the comjjletion of the judgment is a violation of the in- junction. So, too, it has been hold to be a violation of an injunction against proceedings at law to place in the hands of the sheriff an at- tachment for nonpayment of costs, even though the costs in question were actually taxed before the writ was allowed. And where, before the issuing of an injunction against proceedings at law, legal process had been placed in the hands of the sheriff, and the plaintiff in the ac- tion at law did not stop the process on being applied to by the sheriff for further instructions, his neglect to countermand the writ is held a contempt." _ idem, §858; idem (4th Ed.), § 1434. The fact that a party does not succeed in the litigation enjoined is not an excuse for his violation of the order enjoining prosecution of the litigation. Statl^ ex rel. Wood- cock, V. Barrick, 80 W. Va. 63, 92 S. E. 234. "To render one liabh^ for a, viola- tion of an injunction, it is not necessary tliat he sliould have ac- tually committed the breach in per- son, and one who is present, aiding and abetting in the commit>sion of the act, or who permits it to be done in his presence, and without remonstrance, is himself guilty of an actual breach of tlie injunction, and will be punished accordingly. Thus, an attaching creditor who has been restrained from selling the property attached, violates the writ if he allows the attacliing officer to sell in his presence without remon- strance, the officer being regarded as his agent for the purposes of the sale. And one who quietly stands by and permits an injunction to be violated is guilty of contempt, no matter how unreasonable the pro- visions of the writ may have been." Idem, §861; idem (4th Ed.), § 1437. §754 Equity Procedure 976 § 753. The violation of an injunction is punishable as a con- tempt of court. It is a well-reeognized principle applying here that one who is not a party to the injunction suit and & stranger to the writ,"* or a defendant who has no knowledge or information that an injunction has been issued against him, is not guilty of con- tempt in its violation."' But if a defendant has knowledge that an injunction is to issue, though the order has not been entered, and if it has been issued and he is aware of it, though the process has not been served, he must obey the injunction or incur the consequences of disobedience.^""* But if the court granting the injunction be without jurisdiction, the process oi- writ of injunction is void, and in such case there can be no punishment for contempt in disobeying the injunction.'" § 754. How the violation of an injunction is punished. The violation of an injunction may be punished by fine or imprisonment, or by both, in the discretion of the court.*^^ The 138 Bulilman v. Humphrey, 86 la. 597, 53 N. W. 318; State v. Miller, 54 Kan. 244, 38 Pac. 269; Lansing V. Easton, 7 Paige Ch. (N. Y.) 364, 4 L. Ed. 190; 2 Higli, Inj. {4th Ed.), § 1435. 139 State V. Gilpin, 1 Del. Ch. 25; Jones V. Hurlburt, 13 Neb. 125, 13 N. W. 5. 1*0 Kaiser v. Lovott, 106 Ind. 325, 6 N. E. 816; Winslow v. Nayson, 113 Mass. 411; Endicott v. Mathis, K J. Eq. 110; Osborn v. Glass- cock, 39 W. Va. 749, 20 S. E. 702; Wenger v. Fisher, 55 W. Va. 13, 46 S. E. 695. See note to State v. Kaiser, 8 L. R. A. at 580, from which we take the following: "In equity a, party may be punished as for a contempt when he has knowingly and design- edly done acts which he knew, at the time, the court had, by an or- der, prohibited him from doing, al- though at the time no order had been served, or, in fact, entered, but had only been directed to be en- tered. People V. Brower, 4 Paige 405, 3 N. Y. Ch. L. Ed. 491; Hull V. Thomas, 3 Edw. Ch. 236, 6 N. Y. Ch. L. Ed. 640; State v. Dwyer, 41 N. J. L. 05; Livingston v. Swift, 23 How. Pr. 2; Stafford v. Brown, 4 Paige 360, 3 N. Y. Ch. L. Ed. 470; Vansandau v. Rose, 2 Jac. & W. 264; Endicott v. Mathis, 9 N. J. Eq. 110; Cape May & S. L. R. Co. v. Johnson, 35 N. J. Eq. 424; People V. Compton, 1 Duer. a.^S." 141 Ruhl V. Ruhl, 24 W. Va. pp. 282, 283. See Smith v. Smitli, 81 W. Va. 761, 95 S. E. 199; Powhatan Coal & C. Co. v. Ritz, 60 W. Va. 395, 56 S. E. 257, 9 L. R. A. (N.S.) 1225. I''- Stimpson v. Putnam, 41 Vt. 238; Elliott v. Whitmore, 10 Utah 246, 37 Pac. 461. See Smith \, Smith, 81 W, Va. 761, 95 S. E. 199. 977 Injunctions §755 csual course of procedure is by motion or petition for a rule, and its issuance by the court, to show cause why the party should not be attached for his alleged contempt.^*^ Of course, the motion should be based upon affidavit filed in the cause setting forth the acts of disobedience as to the injunction.^" The imprison- ment for disobedience of the court's process or order may be during the pleasure of the court or until the party ceases to be recalcitrant.^*^ § 755, The procedure in matters of contempt for violating an injunction. In most cases, a contempt of court is in the nature of a criminal offense, and the proceeding for its punishment is in the nature of a criminal proceeding."" Before the attachment for the contempt issues the proceedings are to be entitled in the names of the parties to the suit, but afterwards in the name of 143 In re Vanderbilt, 4 Johns. Cli. (N. y.), 57, 1 L. Ed. 762; Parsons V. People, 51 111. App. 467; State V. Davis, 50 W. Va. 100, 40 S. E. 331; MeCredie v. Senior, 4 Paige Ch. (N. Y.) 378, 3 L. Ed. 477; McMillan v. Hickman, 35 W. Va. 714, 14 S. E. 228; State v. Fred- lock, 52 W. Va. 232, 43 S. E. 153, 94 Am. St. Pvep. 932. 144 People V. Spalding, 2 Paige Ch. (N. Y.) 326; MeCredie v. Senior, 4 Paige Ch. (N. Y.) 378, 3 L. Ed. 477 ; State v. Trwin, 30 W. Va. 415, 4 S. E. 413; State v. Gib- son, 33 W. Va. 97, 10 S. E. 58; Hook V. Eoss, 1 H. & M. (Va.) 319. Where a rule has issued on the unsworn statement of counsel, though it be defective in form or substance, yet if defendant appears and submits to rule and admits facts sufficient to support the charge of contempt, the court will disregard all objections to proceed- ings for want of affidavit or defects in the rule although the objection be made in the answer of defend- ant. State v. Frew, 24 W. Va. 416. 14.' State V. Irwin, 30 W. Va. 415, 4 S. E. 413, 420; Petrie v. Buffing- ton, 79 W. Va. 113, 90 S. E. 557; Ex parte Beavers, 80 W. Va. 34, 91 S. E. 1076; Smith v. Smith, 81 W. Va. 761, 95 S. E. 199. 140 B. & 0. E. E. Co. V. City of Wheeling, 13 Gratt. (Va.) 57; Euhl V. Euhl, 24 W. Va. 283; State V. Fredlock, 52 W. Va. 232, 43 S. E. 153, 94 Am. St. Eep. 932. But see Smith v. Smitli, 81 W. Va. 761, 95 S. E. 199, modifying views in this respect presented in earlier decisions and holding that whether the proceeding is civil or criminal in its nature depends upon whether the contempt itself is es- sentially civil or criminal in char- acter, distinguishing between in- hibited acts and mandates to per- form a, duty. §755 Equity Procedure 978 the State."' Upon the return of the rule duly served, the defendant may appear and show cause why he should not be punished for his alleged contempt by answer made to the rule.^^* If the party is adjudged to be guilty of contempt and is fined or imprisoned, or is both fined and imprisoned, or is discharged 1*' Ruhl V. Ruhl, 24 W. Va. 283 ; State V. Harper's Ferry Bridge Co., 16 W. Va. 864; State v. Irwin, 30 W. Va. 415, 4 S. E. 413. But see Smith V. Smith, 81 W. Va. 761, 95 S. E. 199. In tlie ease cited of State V. Irwin, the court decides: "Where a defendant in a suit in equity dis- obeys the process, order, or decre» of the court, the regular and proper proceeding for such contempt is for the plaintiff to file an affidavit set- ting up such fact, and move the court to issue a rule in the cause between the original parties; and when such rule is issued, served on the defendant and returni-d to tlie court, tlien the contempt proceeding should be entirely separate from the chancery suit, and placed on the docket, entitled The State of West Virginia, at the relation of the party at whose instance it was issued, against the offender, and be prosecuted on the law side of the court to judgment; and, if the rule is made absolute, the defendant should pay the costs; and, if it is discharged, it should be at the cost of the relator. To a judgment against the offender he may obtain a writ of error.'' But where the contempt is pri- marily civil in character, as failure to obey a decree commanding the payment of alimony, the contempt proceeding may be conducted in the chancery court itself, as an incident to the cause out of which the con- tempt grew. Smith v. Smith, 81 W. Va. 761, 95 S. E. 199. The latter case further holds that an appeal does not lie from a de- cree finding contempt for the "non- performance of, or disobedience to, a, judgment, decree or order,'' thus overruling State v. Irwin and other cases, supra, in this respect. See W. Va. Code, 1913, c. 160, § 4. The holding in this case would preclude an appeal in any injunction cause from an adjudication of contempt, since in such case the contempt must always come from disobedience of an order or decree. See also. State, ex rel. Fortney Lumber, etc., Co. V. B. & O. R. R. Co., 73 W. Va. 1, 79 S. E. 834. "S Ruhl V. Ruhl, 24 W. Va. 283 ; McMillan v. Hickman, 35 W. Va. 714, 14 S. E. 228. "Defendant should not be pun- ished for a contempt for disobeying a temporary injunction granted in a suit to restrain a trespass on plaintiff's roadway, where all evil intention is disclaimed, and the only thing done was the crossing of the railroad by some of defend- ant's employes in a veagon by » private roadway, the usual route being interrupted by the destruc- tion of a bridge." Postal Tel. Cable Co. v. K & W. R. Co., 88 Va. 929, 14 R. E. 803. See note to People V. Spalding, 2 Paige Ch. (N. Y.) 326,. 2 L. Ed. 929. ■979 Injunctions § 757 without punishment, the action of the court can not be reviewed ilpon an appeal of the chancery cause in which the injunction was awarded, but only by writ of errow" S 756. Effect of an appeal from an order dissolving an in- junction. If an appeal be taken from an order dissolving an injunction, its effect is not restored, unless some order or process be issued from the appellate court staying or superseding the act of dis- solution. But an appeal and supersedeas restore the effect of ■an injunction that has been dissolved by the inferior tribunal. ^^^ Of course, when the order or decree refuses to dissolve, or per- petuates the injunction, an appeal, or an appeal and super- sedeas, does not impair the injunction, and acts forbidden by it are contempts.^ ^^ § 757. What court has power to punish for contempt. Of course, as long as the injunction is pending and in force in the court which granted it, the power to punish for contempt is with that court. *^" And if an appeal is taken from an order overruling a motion to dissolve an injunction, or from an order perpetuating the same, the power to punish for contempt is rstill with the court awarding the injunction."'^ But if an ap- peal he taken from an order dissolving an injunction, accom- panied by a writ of supersedeas,^^'' the power to punish for contempt rests with the appellate court. "^ 149 McMillan v. Hickman, .'^•t W. State, ex rel. Woodcock v. Barrick, Ta. 714 14 S. E. 228. 80 "'• '^'a. G3, 92 S. E. 234. .', , , , ., 151 See same citations; Powhatan Nor, it would seem, even by writ (.^^j ^ ^ ^^ ^^ gj^.^,^ gO ^^ y^_ of error, if tlie contempt arises from 305, 410, 56 S. E. 257, 9 L. R. A. violation of an injunction order. (N.S.) 1225. ;State, ex rel. Fortnev v. B. & 0. ^, isf High Inj., §849 As to when T> -R rr. T-i w Vn" 1 7q "? T? *''^ injunction is granted by a court K. K. Co., Id \N. \a. 1, /a .-^. r.. ^^ another jurisdiction, see Mullens «34; Smith v. Smith, 81 W. Va. Realty & Ins. Co. v. Klein, 85 W. 761, 95 S. E. 199; ante, note 147. Va. 712, 102 S. E. 677. 150 State V. Harness, 42 W. Va. "3 State v. Harness, 42 W. Va. 414. 9fi ,S P, 970 414, 26 S. E. 270, citing State v. iMAvte, hts. Bridge Co., 16 W. Va. 864: 1 Beach, 155 State V. Harness, 42 W. Va. Inj., §283; 2 High, Tnj., §1709; 414, 26 S. E. 270; State v. Bridge Knox Co. V, Harshman, 132 U. S. £0., 16 W. Va. 864; State, eoo rel. ■i. ir. e ni Q QQ T 1?.^ oAo Woodcock, V. Barrick, 80 W. Va. 63, 14, 10 Sup. Ct. 8, 33 L. Ed. 249; ^^ g E. 234 § 758 Equity Procedure 980 § 758. The assessment of damages upon the dissolution of an injunction. In the absence of statute so providing, it is said that a court is not authorized to assess damages upon the dissolution of an injunction. 15^ By statute in West Virginia it is provided that, "when an injunction to stay proceedings on a judgment or decree for money is dissolved, wholly or in part, there shall be decreed to the party having such judgment or decree, damages, in lieu of interest, at the rate of ten per centum per annum from the time the injunction took effect, until such dissolution thereof, on the amount of principal, interest, and costs due on the judgment or decree, proceedings on which are enjoined ; and if a forthcoming bond has been taken in the case, the amount on vt'hich such damages shall be paid, shall be the sum due on such bond. And in all cases the court or judge dissolving the injunction shall ascertain and enter in the decree of dissolution the amount of principal, interest, damages and costs, including officers' fees and commissions due on the judgment or decree, at the date of the dissolution of the injunction, and shall award execution therefor against the defendant in the judgment or decree, proceedings on which were enjoined, or their personal representatives, with interest thereon from that day till paid, and the costs incurred by the defendant in the injunction, in defending the same. And if a forthcoming bond has been given in the case, and the same has been or shall be forfeited, the sureties therein shall be liable for the costs incurred by the defendant in the injunction, as aforesaid, and, to the extent of their liability on said forthcoming bond, for whatever sum remains unpaid, on the execution so awarded. Any such in- junction may be dissolved in vacation, by the judge of the circuit court of the county in which the same is pending; but the opposite party must have reasonable notice in writing of the time and place at which such motion will be made. "^^^ isoBogacki v. Welch, 04 Ala. 420, Co. v. ilagee, 2 Paige Ch. (X. Y.) 10 So. 330; Phelps v. Foster, IS 116, 2 L. Ed. 837, and note. 111. 300; Grove v. Bush, 8fi Iowa i" W. Va. Code, 1013, c. 133, § 12, 04, 53 N. W. 88; Cayuga Bridge 981 Injunctions § 759 Under this statute, the damages must be assessed by the court of equity and entered in the decree of dissolution, and unless this be done there can be no recovery thereof upon the injunction bond.-^^* And under this statute the court shall ascertain and enter in the decree dissolving the injunction, the amount of principal, interest, damages and costs, including officers' fees and commissions due on the judgment or decree, at the date of the dissolution of the injunction, and shall award execution therefor against the defendant in the judgment or decree * * * with interest thereon from that day till paid, and the costs of the defendant in the injunction suit.^^' "When there are two defendants to the judgment, and one of them obtains an injunction which is dissolved, that one only is liable for the damages; while, of course, the other defendant remains, as be- fore, liable for the principal and interest of the debt and the costs at law. "•'^° In a suit by a property owner against a rail- road or other internal improvement company to enjoin it from taking land without compensation, in which the plaintiff has been awarded damages by a jury, it is error to decree the amount of such damages so that execution may issue on the decree.^^^ The order should be that, when the company pays the owner, or deposits "the money in court, the injunction shall be wholly dissolved; but that until then, the injunction shall remain in full force and effect. ^^^ § 759. The assessment of damages upon the dissolution of an injunction further considered. In Virginia, the statute prescribes that "where an injunction to stay proceedings on a judgment or decree for money is dis- solved wholly or in part, there shall be paid to the party having 158 State V. Hall, 40 W. Va. 455, See also, Graham v. Citizens' Xat. 21 S. E. 701. Bank, 4.5 W. Va. 701, 32 S. E. 2*5. 159 \V. Va. Code, 1013, c. 133, i<» Oliio River R. Co. v. Ward, 3.i §12; Graliara v. Citizens' Xat. W. Va. 481, 14 S. E. 142; Ma.son Bank, 45 W. Va. 701, 32 S. E. 245. v. Bridge Co., 20 W. Va. 243. Kio 1 Bart., Cli. Pr. (2nd Ed.), ^i-^ Idem. 510, citing 2 Rob., Prac. (old), 245. § 759 Equity Procedure 982 such judgment or decree, damages at the rate of ten per centum per annum from the time the injunction took effect until the dissolution, on such sum as appears to be due, including the costs; but the court, wherein the injunction is, may direct that no such damages be paid, or such portion thereof as it may deem just. "^•'^ This statute does not contemplate, it would seem, the assessment of damages by the court of equity upon dissolving the injunction, but assessment, or computation, by the clerk who issues the execution.^^* Indeed, in Michaux v. Brown, ^"^ it is observed by Allen, J., in the course of his opinion, speaking for the whole court, that "in practice, damages are always awarded in the decree or judgment of affirmance ; in case of injunctions dissolved no entry is made awarding them — they are the legal consequence of the dissolution of the injunction unless the order dissolving directs otherwise. " ^^^ 163 Va. Code, 1904, §3445. "s lo Gratt. (Va.) at p. 621. 164 Washington v. Parks, 6 Leigh i^^ For the cases in which injunc- (Va.) 581; Jeter v. Langhorne, 5 tions will or will not be granted, Gratt. (Va.) 193; Claytor v. An- vide Hogg, Eq. Pr., §§231-280. thony, 15 Gratt. (Va.) 518; Med- ley V. Pannill, 1 Rob. (Va.) 63. CHAPTER XXXI RECEIVERS § 760. The different kinds of receivers. § 761. Definition of a receiver, and the object of his appointment. § 762. In what cases a, receiver will be appointed. ^ . 63. In wliat cases a receiver will be appointed — further considered. § 764. Appointment of a receiver while case is pending in an appellate court. § 765. Some general principles applying to the appointment of receivers. § 766. Same subject, further considered. § 767. Same subject, concluded. § 768. As to the appointment of a, receiver in vacation. § 769. Who may apply for the appointment of a receiver. § 770. Against whom the application for a receiver is made. § 771. Notice of the application for the appointment of a receiver generally required. § 772. Upon whom the notice of the application for the appointment of a receiver must be served. § 773. How the application for the appointment of a receiver is made. § 774. Who should be appointed a, receiver. § 775. The vacating of the order appointing a receiver. § 776. The requisite allegations of the bill for the appointment of a re- ceiver. § 777. The requisite allegations of the bill for the appointment of a, re- ceiver further considered. § 778. The hearing of the application for the appointment of a receiver. § 779. The order appointing a receiver. § 780. As to suits by and against receivers. § 781. As to the court granting leave to sue its receiver. — When leave to sue not necessary. § 782. The bond and security of the receiver. § 783. The property over which a receiver may be appointed. § 784. The rights and powers of a receiver. § 785. Powers not possessed by a receiver. § 786. As to the implied powers of a, receiver. § 787. As to the discretion of a receiver touching his receivership. § 788. As to the duties of a receiver. § 789. The receiver may ask the advice of the court as to his duties. § 790. The compensation of a receiver. § 791. The effect of the appointment of a receiver. § 792. The discharge of a receiver. 983 § 761 Equity Proceduee 984 § 760. The different kinds of receivers. The laws of the Virginias provide for the appointment of two kinds of receivers — general and special.^ The power to ap- point all receivers is lodged with the circuit courts.^ As a gen- eral receiver is a standing ofScer of the court, whose appoints ment does not rest upon the pendency of a suit, we shall con- sider here only the subject of special receivers.^ § 761. Definition of a receiver, and the object of his appc?."^ ment. A receiver is a ministerial officer and representative of the court, who stands indiiferent between the parties to the cause, is subject to the orders of the court, accountable in such manner and to such persons as the court may direct, and having in his character as receiver no personal interest in the suit, but that arising out of his responsibility for the correct and faith- ful discharge of his duties,* which consist in his taking posses- sion of and preserving, pendente lite, the fund or property in litigation when it does not seem equitable to the court that either party should have possession or control of it.^ "The iVa. Code, 1904, §§3401, 3402, 105, 63 S. E. 772; City Bank of 3405; W. Va. Code, 1913, c. 133, Wheeling v. Bryan, 76 W. Va. 481, §§ 15, 28. 86 S. K. 8. 2 Idem. And in Virginia circuit "The property of which a receiver and corporation courts. has charge is in custodia legis. His 3 For a presentation of the pow- appointment and qualification is a ers and duties of general receivers, sequestration of the property by see Hogg, Eq. Princ, §§ 130-136, the court, for the purpose of ad- 148. ministering it for the best interests For the distinction between a re- and protection of the rights of all reiver of a court and one appointed persons interested in the estate, by an administrative officer, see His possession is the court's pos- Alleman v. Sayre, 79 W. Va. 763, session, and he is subject only to 91 S. E. 805. its orders." City Banlc of Wheeling -' Beverly v. Broolce, 4 Gratt. v. Bryan, supra. (Va.) 208; 2 Beach, Mod. Eq. Pr., =2 Beach, Mod. Eq. Pr., §717; §717; Davis v. Snead, 33 Gratt. 1 Bart., Ch. Pr. (2nd Ed.), 513; (Va.) at p. 710; Deckert v. Chesa- Peckert v. Chesapeake Western Co., peake Western Co., 101 Va. 804, 101 Va. 804, 45 S. E. 799; City 45 S. E. 799; Lazear v. Ohio Val- Bank of Wheeling v. Bryan, 76 W. ley Steel Foundry Co., 65 W. Va. Va. 481, 86 S. E. 8. 985 Receivers § 762 prime object of the appointment of a receiver in a pending cause, is the protection and preservation of the subject in litiga- tion from spoliation, waste or deterioration, and for the ad- vancement of justice."^ § 762. In what cases a receiver will be appointed. The court never appoints a receiver except in a pending caused The cause is pending when the process commencing the suit has been issued, ** or where the defendant has waived the issuance thereof and appeared gratis to the suit.^ And the cause in which a receiver may be appointed must be one in which there are adversary parties, as a receiver can not be appointed iu an ex parte proceeding.'" It is provided by statute in West Virginia that "a court of equity may in any proper case pend- ing therein, in which the property of a corporation, firm or person is involved, and there is danger of the loss or misappro- priation of the same or a material part thereof, appoint a special receiver of such property or of the rents, issues and profits thereof, or both. "^^ This statute is simply declaratory of the ancient power of a court of equity as to what it could do in this regard, as well without, as under such a statute.^ ^ A re- 6 Hogg, Eq. Princ, §137. s Ante, §12. 7 Hogg, Eq. Erinc, § 137, citing » Pressly v. Harrison, 102 Ind W. Va. Code, c. 133, §28; Harwell 41, 1 N. E. 188. v. Potts, 80 Ala. 70; Pressly v. lo Hardy v. JfcClellan, 53 Misa Harrison, 102 Ind. 41, 1 N. E. 188, 507. 190, 191; Smith on Receivers, 35, n W. Va. Code, 1013, c. 133, §28. 36, and notes. See Eainey v. Free- 12 jjigpham, Eq. Princ, §§576. port Smokeless Coal & C. Co., 58 685; Folsom v. Evans, 5 Minn. 413 W. Va. 424, .52 S. E. 528; Baltimore (Gil. 338) ; Murray v. Murray, ILI Bargain House v. St. Clair, 58 W. Cal. 256, 47 Pac. 37, 56 Am. St, Va. 565, 52 S. E. 660; Meyers Rep. 97, 37 L. R. A. 626, 629; 2 Bros. V. Harman Bros., 78 W. Va. Ceacli, Mod. Eq. Jur., § 931. 460, 89 S. E. 146. Under this statute, the receiver In Virginia, by statute, the estate must be appointed in a pending of a married woman, when a minor, cause, and a suit can not be main^ may be committed to a receiver tained for the sole purpose of ap- upon mere petition by the next pointing a receiver. Ward v. Hotel friend of such married woman. Va. Randolph Co., 65 W. Va. 721, 63 Code, 1904, §2291. S. E. 613. 763 Equity Peocedukj 986 ceiver will only be .ppointed in aid of a pending cause, and no suit can be maintained for the sole purpose of appointing; a receiver.^' § 763. In what cases a receiver will be appointed — further con- sidered. Subject to the principles already stated,^* and those here- inafter stated,^^ a receiver will be appointed in the following eases: (a) To protect the estate of an infant, where there is no guardian, or where the parent of the infant, in possession of the property, is squandering it.'^ (b) Where each of the parties litigant is equally entitled to the possession of the property, but the circumstances are such that it is not proper for either of them to retain control; as in the case of litigation between partners, eotenants, etc.^' (c) Where the party entitled to the Instate V. Union Nat. Bank, 145 Ind. 53", 44 K. E. 585, 57 Am. St. Eep. 209; Thompson v. Adams, 60 W. Va. 463, 55 S. E. 668: Ward V. Hotel Randolph Co., 65 W. Va. 721, 63 S. E. 613; Baltimore Bar- gain House V. St. Clair, 58 W. Va. 565, 52 S. E. 660; Meyers Bros. v. Harman Bros., 78 W.'Va. 460, 89 S. E. 146; other cases cited ante, note 7. liAnte, § 762. 15 Post, §§765-767. 16 Eaton on Equity, 648, citing HicUs V. Hicks, 3 Atk. 273; Butler V. Freeman, 1 Anib. 303; In re Cor- micks, 2 Ir. R. Eq. 264. It was formerly the practice to appoint a receiver of a decedent's estate pending a contest as to the probate of his will, Eaton, Eq., 648 ; but now a curator of the estate is appointed under the statute. W. Va. Code, 1913, .;. 77, §23; Va. Code, 1904, § 2534. Mr. Barton, relating to the matter stated in the text, says: "In the cases of infants and lunatics, it has been held that a receiver may be oppointed other- wise tlian in a pending suit, but sucli is not the general practice, and it can not be said to prevail in Vir- ginia. Indeed, in treating of the property of infants, it is laid down by high authority, that if a receiver of the estate is wanted, or a com- pulsory order on trustees, or if there be complicated accounts, a bill is necessary." 1 Bart., Ch. Pr. {2nd Ed.), 518. 17 Hogg, Eq. Princ, § 137; Eaton, Eq., 648. In the appointment of a receiver in matters of partnership, the juris- diction is exercised witli great cau- tion; but when it appears that a dissolution must be declared, the appointment of a receiver follows almost as a matter of course. Ea- ton, Eq., 648, citing Goodman v. Whitcomb, 1 Jac. & W. 589; Mc- Elvey V. Lewis, 76 N. Y. 373, 375; Wood V. Wood. 50 W. Va. 570, 40 S. E. 416; News-Register Co. v. Rockingham Publishing Co., 118 Va. 140, 86 S. E. 874. And this 987 Eeceivees §763 possession of the property is misapplying or spoliating it, to the detriment of the other party claiming an equitable interest therein.^* (d) Where a suit is pending to subject lands to the is especially so, if after dissolution the parties can not agree among themselves as to the disposition and control of the partnership property. Jordan v. Miller, 75 Va. 442; New V. Wright, 44 Miss. 202; Allen v. Hawley, 6 Fla. 164, 63 Am. Dec. 198; Barnes v. Jones, 91 Ind. 161. Mr. Merwin, in his Equity and Equity PI., p. 580, says: "To justi- fy the appointment of a receiver in the case of a partnership, it may be said in a general way, that it must appear, either ( 1 ) that one partner is acting in fraudulent or wilful violation of the partnership agreement; or (2) is excluding his copartner from his proper share in the management of the partnership assets and business; or (3) is act- ing dishonestly; or (4) that the hostilities between the partners and their loss of confidence in each other are so great, or their views and in- terests are so conflicting, that all cooperation and reasonable settle- ment of their affairs by themselves have become impracticable." In a suit brought to establish the fact of a partnership between the plaintiff and defendant, and to have the firm's accounts settled and the partnership dissolved, in which an amended and supplemental bill ask- ing for a receiver has been filed and the defendant, who is in possession, conducting a successful and pros- perous business, denies the partner- ship, is solvent, and able to respond in damages, the court will not ap- point a receiver. Wood v. Wood, 50 W. Va. 570, 40 S. E. 416. "In a suit to dissolve a partner- ship and settle its accounts, where the defendant in possession denies the partnership, a receiver should not be appointed unless the fact of partnership is clearly proven in the cause, and there is danger of the loss or misappropriation of the property of the firm, or a material part thereof." Idem. Where a suit for partition ia pending, there is imminent danger of loss to the cotenants through drainage of oil from the land, and the cotenants are unable to agree upon a plan for development of the land for oil and gas, the court may appoint a receiver to produce the oil and gas as a measure of preservation., Ohio Fuel Co. v. Bur- dett, 72 W. Va. 803, 79 S. E. 667, Ann. Cas. 1915D, 1033. 18 Hogg, Eq. Princ, § 137. A receiver may be appointed in lieu of a trustee who fails to act. Lamp V. Homestead Bldg. Assn., 62 W. Va. 56, 57 S. E. 249. Mr. Eaton, in his treatise on eq- uity at p. 649, says: "A court of equity may, if a proper case be shown, dispossess an executor, ad- ministrator, or trustee, and appoint a receiver of tlie decedent's estate or the trust property. If waste or im- proper use of funds or misconduct can be shown against an executor or administrator, the court may take the property out of his hands; but the court will not act on slight grounds." The author cites in support of this principle, the following cases: Beverly v. Brooke, 4 Gratt. (Va. ) 208; Smith v. Smith, 2 Younge & §763 Equity Pkoceduee 988 payment of liens thereon, and it is shown that the debtor is insolvent, or that the lands are likely to prove insufficient to satisfy the undisputed or ascertained liens existing thereon, and it is sought to sequester the rents and profits of the lands until sale can be made of them.^' (e) Where there is a conflict of claims or liens with reference to property, either real or per- sonal, and it is sought to preserve the same from waste or de- struction, pending suit to settle the rights of the respective claimants.^" (/) And by virtue of statute in West Virginia, C. 361 ; Haines v. Carpenter, 1 Woods (U. S.) 265, 266, Fed. Cas. Ko. 5, 905; Hill V. Arnold, 79 Ga. 367, 4 S. E. 751. A receiver may be appointed, at the instance of creditors, to take charge of and preserve the estate of a decedent, and even to sell the same, in a proper case, provided the personal representative neglects to perform his duties in these respects. Buskirlv Bros. v. Peck, 57 W. Va. 360, 50 S. E. 432. 19 Hogg, Eq. Princ, §137, citing Ogdeji V. Chalfant, 32 W. Va. 559, 9 S. E. 870; Dunlap v. Hedges, 35 W. Va. 287, 13 S. E. 656; Grantham V. Lucas, 15 W. Va. 425. See Smith V. Butcher, 2S Gratt. (Va.) 144; Adkins v. Edwards, 83 Va. 300, 2 S. E. 435. See McClanahan's Admr. V. N. & W. Ey. Co., 122 Va. 705, 96 S. E. 453. "Before a court of equity will ap- point such receivers, the creditor must have a lien upon or some right to charge the property other than that of being a mere common cred- itor.'' Thompson v. Adams, 60 W. Va. 463, 55 S. E. 668. The appointment of a receiver in a case of the kind stated in the text may be dispensed with if the debtor gives security to account for the rents and profits in case there should be a deficiency upon a sale of the premises under the decree. Grantham v. Lucas, 15 W. Va. 425. 20 Hogg, Eq. Princ, § l37, citing Kerr v. Hill, 27 W. Va. 576; Dun- lap V. Hedges, 35 W. Va. 287, 13 S. E. 656; Nutter v. Brown, 58 W. Va. 237, 52 S. E. 88, 1 L. E. A. (K.S.) 1083. But the mere fact that there is a conflict of claims is not alone sufli- eient for the appointment of a re- ceiver. Special circumstances justi- fying the receivership must he sho\^^l. Freer v. Davis, 52 W. Va. 35, 43 S. E. 172, 94 Am. St. Rep. 910. As to the appointment of receiv- ers in attachments in equity suits, see Va. Code, 1904, §2964; and in proceedings against garnishees, see Va. Code, 1904, §2976. "Where a corporation is insol- vent, and is the lessee of a coal mine, and the said insolvent lessee is largely indebted to its lessor for royalty reserved in the lease, which is secured by a lien on the lease and personal property and appli- ances in use about the mine by the lessee, and several of the creditor* of such lessee have proceeded by way of attachment, and are proceed- ing to seize and scatter the personal property belonging to said lessee. 989 Receivers §763 a receiver may be appointed to wind up the affairs of a foreign fOfporation that has done business, acquired property, and con- tracted de'bts in that state.^^ and to remove the rails from the tracks and wire ropes from the drums, a court of equity, on proper application made by such lessor, will appoint a receiver to take charge of said property." Kana- wha Coal Co. V. Ballard & Welch Coal Co., 43 W. Va. 721, 29 S. E. 514. 21 W. Va. Code, 1913, c. 53, §§ 58, 59; Swing v. Bentley & Gerwig Furniture Co., 45 W. Va. 283, 31 S. E. 925; Waggy v. Jane Lew Lumber Co., 69 W. Va. 6fi6, 72 S. E. 778; Parr v. Blue Ridge Coal Co., 72 W. Va. 174, 77 S. E. 894. But good cause must be shown. Eainey v. Ereeport Coal & C. Co., 58 W. Va. 424, 52 S. E. 528; Ward V. Hotel Randolph Co., 65 W. Va. 721, 63 S. E. 613. Mere insolvency alone is not sufficient. Waggy v. Jane Lew Lumber Co., supra; Parr V. Blue Ridge Coal Co., supra. And in West Virginia, where a corporatian or pretended corpora- tion has been dissolved by the judg- ment of a circuit court under c. 109 of the Code of that state, the court may appoint a receiver of the property of such corporation, as provided in §28 of c. 133 of the Code. W. Va. Code, 1913, c. 100, §13. Though a court of chancery will be reluctant to appoint a receiver to take charge of and manage a railroad, it is competent to do so when such a course is indispensable to secure the rights of the legiti- mate stockholders, and to prevent a failure of justice. Stevens et al v. Davison [1886], 18 Gratt. (Va.) 819. "When administrator has been removed and estate committed to sheriff, as administrator d. 6. «., and unadministered assets are suffi- cient to pay debts, and to pay same that fund must be drawn to some unknown extent. Beld : It is proper not to pay that fund at once to dis- tributees, but to appoint receiver to hold same for protection of sureties, creditors, and distributees, especial- ly as administrator d. 6. «. can not sue his predecessor for assets wasted or converted." Harmon et al. V. McMullin et al. [1888], 85 Va. 187, 7 S. E. 349. See also, Davis v. Chapman, 83 Va. 67, 1 S. E. 472; Farmer v. Yates, 23 Gratt. (Va.) 145. "The life tenant in a, homestead estate neglected and refused to pay taxes or make repairs thereon for many years, and to save the estate from entire loss to the reversioners the taxes were paid by the adminis- trator with the will annexed, having the power so to do by the express terms of the will. Eeld, that such administrator miglit proceed in eq- uity to have a receiver appointed to take charge of the premises, col- lect the income or rentals of the property, and apply the proceeds to pay the taxes and necessary ex- pense of repairs and reimburse the administrator for such taxes and expenses so paid, and also pay from such income any unpaid taxes or necessary expense for repairs neces- sarily made to save the property; §765 Equity Procedure 990 § 764. Appointment of a receiver while case is pending in an appellate court. After a ease has been taken to the court of appeals, the court of original jurisdiction may still appoint a receiver.^^ If the decree appealed from is not a final one, in the sense of ending the cause, the receiver may he appointed without the aid of a petition ; but if the decree is a final one, the ease may be re- stored to the docket by petition and a receiver tben appointed.^* § 765. Some general principles applying to the appointment of receivers. "While the appointment of a receiver rests in the sound discre- tion of the court,^^ still, acting as it often must of necessity. and that if such rental is insuffi- cient, the receiver may, under au- thority and direction of the trial- court, proceed to sell the life estate of the defendant in the premises, or so much thereof as may be suffi- cient for such purposes." St. Paul Trust Co. V. Mintzer, 65 Minn. 124, 32 L. R. A. 756, 67 X. W. 657, 60 Am. St. Rep. 444. A receiver may be appointed at the beginning of an action by a deserted wife to set aside a transfer by her husband of his property to defeat her rights to maintenance under the general equity power of the court under the same circum- stances that the appointment would be made in a suit by a creditor to set aside a transfer fraudulent as to him. Murray v. Murray, 115 C'al. 266, 47 Pac. .37, 56 Am. St. Hep. 97, 37 L. R. A. 626. As to when it is proper to appoint a receiver, vide elaborate note to Cameron v. Groveland Improvement Co., 72 Am. St. Rep. 29-97. See also, Hogg, Eq. Princ, § 138. 22 Adkins v. Edwards, 83 Va. 316, 2 S. E. 439; Hutton v. Lockbridge, 27 W. Va. 428; Moran v. Johnson, 26 Graft. (Va.) 158. 23 Adkins v. Edwards, 83 Va. 316, 2 S. E. 439; Beard v. Arbuckle, 19 W. Va. 145. 24 Hogg, Eq. Princ. §137; Eaton on Eq., 646: 1 Bart., Ch. Pr. (2nd Ed.), 514; Korris v. Lake, 89 Va. 513, 16 S. E. 663; Baltimore Bar- gain House V. St. Clair, 5S W. Va. 565, 52 S. E. 660: Spies v. Butts. 59 W. Va. 385, 53 S. E. 897: Lamp V. Homestead Bldg. Ass'n, 62 W. Va. 56, 57 S. E. 249; Suit v. Hoch- stetter Oil Co., 63 W. Va. 317, 61 S. E. 307: Deckert v. Chesapeake Western Co., 101 Va. 804, 45 S. E. 799: McClanahan's Adm'r v. N. & W. Ry. Co., 122 Va. 705, 96 S. E. 453. "The application for the appoint- ment of a receiver is addressed to the sound discretion of the court. The appointment is not a matter of right. The power is a discre- tionary one to be excereised with great circumspection. The discre- tion is not arbitrary or absolute. 991 Receivers §765 before the merits of the cause have been fully heard, and not infrequently when all the proper parties are not before the court, it proceeds with much caution and circumspection, in order to avoid disturbing unnecessarily or injuriously legal rights and equitable priorities,^^ and because, too, the appoint- ment may work great and even irreparable injury, though the property taken into the custody of the court may finally be restored.^^ Hence, the court will not exercise this extreme pre- rogative, unless it is made to appear: first, that the plaintiff either "has a clear right to the property itself, or that he has some lien upon it, or that the property constitutes a special fund, to which he has a right to resort for the satisfaction of his claim; and, secondly, that the possession of the property by the defendant was obtained by fraud, or that the property itself, or that the income arising from it, is in danger of loss from the neglect, waste, misconduct or insolvency of the de- fendant."^^ Nor will a receiver be appointed in a suit to im- but sound and judicial; not to be too strictly limited, or lightly used." Spies v. Butts, supra. "Though the power of circuit courts to appoint receivers is dis- cretionary, and the exercise thereof will not be disturbed or interfered with by the appellate court, unless it appears to have been abused, such discretion is circumscribed and gov- erned, as to the exercise thereof, by legal and equitable principles, viola- tion of, or departure from, which amounts to an abuse thereof." Suit V. Hochstetter Oil Co., supra. The exercise of the court's discre- tion in appointing a receiver will not be disturbed, except in cases where such discretion has been man- ifestly abused. Smith v. Brown, 44 W. Va. 342, 30 S. E. 160. See other cases supra in accord. 25 Beverly v. Brooke, 4 Gratt. 'Va.) 187: Eaton on Equity, 646; Freer v. Davis, 52 W. Va. 35, 43 S. E. 172, 94 Am. St. Rep. 910; Baltimore Bargain House v. St. Clair, 58 W. Va. 565, 52 S. E. 660; Spies V. Butts, 59 W. Va. 385, 53 S. E. 897; Suit v. Hochstetter Oil Co., 63 W. Va. 317, 61 S. E. 307; McClanahan's Adm'r v. N. & W. Ry. Co., 122 Va. 705, 96 S. E. 453 28 Eaton on Equity, 646. .27 Kanawha Coal Co. v. Ballard, & Welch Coal Co., 43 W. Va. 721, 29 S. E. 514; Eaton on Equity, 646; Thompson v. Adams, 60 W. Va. 463, 465, 55 S. E. 668: Suit v. Hoch- stetter Oil Co., 63 W. Va. 317, 334, 61 S. E. 307; Wilson v. Hawker Lumber Co., 74 W. Va. 65, 81 S. E. 568. The case of Blondheim v. Moore, 11 Md. 365, is a leading case on the subject of the appointment of re- ceivers, in which the following rules were laid down : ( 1 ) that the power of appointment is a delicate one, and is to be exercised with great §766 Equity Procedure 992 peaeli or establish a will, to take charge of the estate pending the contest, as the appointment of a receiver in such a case is tiltra vires and void.^^ § 766. Same subject, further considered. "When the court is unable to see that any benefit will result from appointing a receiver in the cause, or that any injury will follow from refusing the relief, it will not interfere, espe- cially if it is apparent that great confusion and difficulty in the management of the property may result to both parties from a receivership. So, if upon a consideration of all the circum- stances of the case it is apparent that greater injury will ensue from appointing a receiver than from leaving the property in its present possession, or if other circumstances of propriety or convenience render the appointment improper or inexpedient, the court will refuse to interfere. Nor will a receiver be ap- circumapection ; (2) that it must appear that the claimant has a title to the property, and tlie court must be satisfied by affidavit that a re- ceiver is necessary to preserve the property; (3) that there is no case in which the court appoints a re- ceiver merely because the measure can do no harm: (4) that fraud or imminent danger, if the im- mediate possession should not he taken by the court, must be clearly proved: (5) that, unless the neces- sity be of the most stringent char- acter, the court will net appoint a receiver until the defendant is first heard in response to the application. "A receiver should not be ap- pointed to take charge of property conveyed to a trustee to secure debts in a siiit in which the hill is filed to set aside the conveyance as fraudulent, when the motion is heard upon the pleadings and proofs, and it does not appear therefrom that the conveyance is fraudulent." Harden v. Wagner, 22 W. Va. 356. "To justify the appointment of a special receiver of the property in a suit for specific performance of a contract of sale and purchase thereof, plaintiff must show a clear right to the property itself: but where the contract is that of a corporation, and it and a deed pur- suant thereto have been executed and delivered by its president and secretary in due form, and tlie plain- tiff has thereby presented a clear prima facie right and cast the bur- den of showing want of authority on the officers of the corporation, relied on as a defense, authority on the part of said officers will be pre- sumed, and the burden will be cast upon the corporation to show want of svich authority.'' Lawrence v. Montgomery Gas Co., 84 W. Va. 382, 99 S. E. 496. 2s Kirby V. Kirby, 84 Va. 627, 5 S. E. 534; Hartman v. Strickler, 82 Va. 22.5, 233. 993 Receivers § 768 pointed in an improper ease, even by consent of parties, espe- cially when the rights of third persons are concerned and may be jeopardized by the appointment."^' § 767. Same subject, concluded. A receiver is appointed on behalf of all parties, and not of the plaintiff or defendant only.^" The court will not appoint a receiver where there is an adequate and sufficient remedy at law.^-"^ So, wherever there is a dispute respecting an estate, which depends upon a mere legal title, the court will not, in general, appoint a receiver, as the plaintiff has his remedy at law.'^ And laches, neglect, or acquiescence of the aggrieved party will wholly defeat his right, which would have been recog- nized had the application for a receiver been made in due time.'' § 768. As to the appointment of a receiver in vacation. In the absence of a statute so providing, as a general rule, jurisdiction to appoint a receiver can be exercised only in term 20 1 Bart., Ch. Pr. {2nd Ed.) , 514, "A receiver should never be ap- 515, citing High on Receivers, § 8, pointed until the legal remedy is and note. exhausted." Rainey v. Freeport 30 2 Daniell, Ch. PI. and Pr. (6th Smokeless Coal & C. Co., 58 W. Ya. Am. Ed.) 1716, note (a) ; 1 Bart., 424, 429, 52 S. E. 528. Ch. Pr. (2nd Ed.), 515; McMahon ^2 2 Daniell, Ch. PI. and Pr., 1725 ; V. McClcrnan, 10 W. Va. 410. He Freer v. Davis, 52 W. Va. 35, 4.3 S. "is not in any sense an agent or E. 172, 04 Am. St. Rep. 010. representative of either party to the But "equity jurisdiction for an cause." Lazear v. Ohio Valley injunction and receivership can not Steel Foundry Co., 65 W, Va. 105, be defeated on the ground of dispute 63 S. E. 772. He "has no right, as to the title to the land affected, even in the cause in which he is when, the record being free from appointed, withont leave of the controversy as to facts, the question court, to intermeddle in questions of title is one of law only." Suit affecting the rights of the parties." v. Hochstetter Oil Co., 63 W. Va. Whvel V. Jane Lew Coal & C. Co., 317. 61 S. E. 307. 6'' W. Va. 651, 60 S. E. 192. 33 i Bart., Ch. Pr. (2nd Ed.), 516, " 1 Bart., Ch. Pr. (2nd Ed.), 515, citing High on Receivers, § 14 ar>d 516. note. 769 Equity Procedure 994 time.^* In West Virginia, the statute'^ authorizes the appoint- ment in vacation of a receiver of any property, except real estate and the rents, issues and profits thereof.'" But in Vir- ginia, a receiver may be appointed in vacation, asi well of realty and its rents and profits as' of personalty.'^ § 769. Who may apply for the appointment of a receiver. The application for the appointment of a receiver may be, and usually is, made by the plaintiff in the suit,'^ but may be made by the defendant therein.'^ And it may be made by a creditor who has a judgment or other lien upon the property, without reference to his status in the suit. That is, regardless s* Newman v. Hammond, 46 Ind. 119; Hammock v. Farmers' L. & F. Co., 105 U. S. 77; Alexander v. Manning, 58 Miss. 634. It la other- wise now in Indiana by statute. Pressley v. Lamb, 105 Ind. 171, 4 N. E. 682. 3= W. Va. Code, 1913, c. 133, § 28. 30 Kerr v. Hill, 27 W. Va. 576. "Under § 28 of c. 78 of the Acts of 1882 (Warth's Code, p. 743), a judge of a circuit court ought not to appoint a receiver of real prop- erty or of the rents, issues or profits thereof in vacation. But if he should do so, the blunder should be corrected by making an order when the court is in session requiring such improperly appointed receiver to pay or pass over to the general receiver or to a special receiver ap- pointed during the session of the court all money or property in his hands.'' Kerr v. Hill, supra. ■" Smith V. Butcher, 28 Gratt. (Va.) 144. In the course of his opinion, An- derson, J., in Smith v. Butcher, supra, speaking for the whole court as to the action of the court in appointing a receiver in vaca- tion, says: "The court is of opin- ion that the power to appoint a re- ceiver is incidental to the power to award an injunction. And as the latter may be awarded by a judge in vacation, so may the power to ap- point a receiver as incidental there- to, in a, proper case, be exercised by a judge in vacation. * * 'It op- erates as an injunction. An order for an injunction is always more or less included in an order for a re- ceiver. It is not necessary, if a re- ceiver be appointed, to go on and grant an injunction in terms." See also, Penn v. Whiteheads, 12 Gratt. (Va.) 74: 1 Bart., Ch. Pr. (2nd Ed.), 5,-50. 3S 17 Enc. PI. and Pr., 703. so Idem, 707. But a receiver can be appointed at the instance of a defendant, as against a plaintiff or codefendant, only where the application is founded uijon an answer or cross- hill setting up a claim to affirmative relief. Sellers v. Stoffel, 139 Ind. 468. 39 N. E. 52: Lovett v. Slocomb, 109 X. C. 110. 13 S. E. 893; Har- man v. Wagner, 33 S. C. 487, 12 S. E. 98. 995 Receivers § 770 of whether he be a plaintiff, a formal defendant to the suit, or only quasi-party by virtue of a convention of lienholders/" So, the trustee in a deed of trust, in a proper ease, may apply for the appointment of a receiver of the trust subject." Likewise a lessor, on a proper application, may have appointed a re- ceiver of his own property which is liable to be injured or destroyed by the acts of the creditors of the lessee.*- Also a stockholder of a corporation may apply for a receiver, when the directors have allowed the property to remain out of repair, and thus to become unproductive.*^ But no one can have a receiver appointed, unless he has a lien upon the property sought to be placed in the hands of a receiver,** or an acknowl- edged, or strongly presumptive, title in himself, or in common with others, in such property.*^ § 770. Against whom the application for a receiver is made. Every one against whose ownership or claim of ownership of the property to be placed in the hands of a receiver, or the possession or right of possession thereof, the appointment of a receiver will operate, must be a party to the suit in which the application is Taade.*^ Thus, where a defendant in a foreclosure suit is in possession of the mortgaged premises by his tenant, the possession of the tenant can not be disturbed by the appoint- ment of a receiver, unless such tenant is a party to the suit.*'' i" Ogden V. Chalfant, 32 W. Va. Rep. 209 ; Thompson v. Adams, 60 559, 561, 9 S. E. 879. W. Va. 463, 55 S. E. 668. *i Dunlap V. Hedges, 35 W. Va. ^5 2 Beach, Mod. Eq. Pr., § 728. 287, 13 S. E. 656. See ante, §§763, 764. 42 Kanawha Coal Co. v. Ballard 4o See Insurance Co. v. Stebbina, & Welch Coal Co., 43 W. Va. 721, 8 Paige Ch. (N. Y.) 565, 4 L. Ed. 29 S. E. 514. 543; Bennett v. McGuire, 5 Lans. *3 Wayne Pike Co. v. Hammons, (N. Y.) 183; Rodman v. Henry, 17 129 Ind. 368, 27 N. E. 487; Stevens N. Y. 484; Walker v. Gibson, 35 V. Davison, 18 Gratt. (Va.) 819. III. App. 49. See Waggy v. Jane Lew Lumber *'' See Insurance Co. v. Stebbins, Co., 69 W. Va. 666, 72 S. E. 77S; 5 Paige Ch. (N. Y.) 565, 4 L. Ed. Parr v. Blue Eidge Coal Co., 72 W. 543. But he may be ordered to at- Va. 174, 77 S. E. 894. torn to the receiver and pay the ** State V. Union Nat. Bank, 145 rent to him. Idem. Ind. 537, 44 N. E. 585, 57 Am. St. <§771 Equity Procedure 996 And a corporation is a necessary party to a bill upon which an application is to be based for the appointment of a receiver to take possession of its property.^^ §771. Notice of the application for the appointment of a receiver generally required. Unless in cases of the most urgent necessity for the appoint- ment of a receiver, in which the delay essential to the giving of notice of the application for such appointment would prac- tically amount to a denial of justice or result in great or irrep- arable loss or injury to the applicant, courts will not appoint a receiver in the absence of a suiScient notice to the opposite party of the time and place of the application for such appoint- ment.^^ If, however, a motion is made in a cause pending in ■18 Gravenstine's Appeal, 49 Pa. St. 310. 49 Fredenheim v. Eohr, 87 Va. 764, 13 S. E. 193; Osborne v. Big- stone Gap Colliery Co., 96 Va. .58, 30 S. E. 446; Eufifner v. Mairs, 33 W. Va. 655, 11 S. E. 5; Hutton v. Lockridge, 27 W. Va. 428; Oil Run Petroleum Co. v. Gale, 6 W. Va. 525; Batson v. Findley, 52 W. Va. 343, 43 S. E. 142; Baltimore Bar- gain House V. St. Clair, 58 W. Va. 565, 52 S. E. 660; Ward v. Hotel Randolph Co., 69 W. Va. 197, 71 S. E. 105; Triebert v. Burgess, 11 Md. 452; Va., Tenn. & Car. Steel Co. v. Wilder, 88 Va. 942, 14 S. E. 806; C. C, etc., Ry. Co. v. Jewett, 37 Ohio St. 649; 2 Daniell, Ch. PI. and Pr. (6th Am. Ed.), 173, note (a) ; Wabash R. Co. v. Dykeman, 133 Ind. 56, 32 N. E. 823; Dozier V. Logan, 101 Ga. 173, 28 S. E. 612. In this last case Atkinson, J., observes: "As was well said by Mr. Justice McCay, in the case of Crawford v. Ross, 39 Ga. 49: 'The high prerogative act of taking prop- erty out of the hands of one and putting it in pound under order of a judge, ought not to be taken, ex- cept to prevent manifest wrong, immediately impending.' If it were possible for the court, as at present constituted, to add anything to the emphasis of this language, it would do so without the slightest hesita- tion." In Ruflfners' v. Mairs, it is de- cided: "A court of equity should exercise extreme caution in the ap- pointment of receivers on eao parte applications, and be careful that a proper ease is presented before adopting this extraordinary pro- cedure, and it should not be done without notice to the party whose property is to be affected, except in cases of the greatest emergency, de- manding the immediate Interference of the court." In Fredenheim v. Rohr, supra, in the course of its opinion the court says: "It is of the very essence of a motion for the appointment of a receiver, even by the court below, 997 Receivers §771 court, fully matured for hearing, in which the bill prays for a receiver, no notice of such application for a receiver is neces- that notice shall be given to the defendants of the time and place of the application; and it is only in an extreme case, such that the exigency of the danger would be fatal, that a receiver can be justly appointed, even in and by the court in which the cause is pending, with- out reasonable notice to the defend- ants." There are cited in support of this doctrine the following authorities: High, Eec, p. 75, § 111, and pp. 24, 25; Kerr, Eec, pp. 147-149, and the cases of Bisson v. Curry, 35 Iowa 72; French v. Gifford, 30 Iowa 148; Rogers v. Dougherty, 20 Ga. 271; People v. Norton, 1 Paige (N. Y.) 17; Triebert v. Burgess, 11 Md. 452 ; Voshell v. Heaton, 26 Md. 83; Gibson v. Martin, 8 Paige (N. Y.) 481; Sandford v. Sinclair, idem, 373; Thompsen v. Diffenderfer, 1 Md. Ch. 489, 490; Verplanck v. In- surance Co., 2 Paige (N. Y.) 450. In Hogg, Eq. Princ, § 141, the following are the instances given in which a receiver may be appoint- ed without notice: " ( 1 ) Where the appointment of a receiver is prayed for as a meas- ure of final relief. In such case the bill of complaint, with the service of the writ, are treated as notice. "(2) Where all parties are be- fore the court consenting to the appointment, either in person or by attorney. "(3) Where the defendants, or parties in interest, have absconded, or r.re beyond the jurisdiction of the court, or can not be found. Of course, under such circumstances, it would be unreasonable to require notice, and the rule is not obliga- tory. "(4) Where there is imminent danger of loss, or great damage, or irreparable injury or the greatest emei-gency. Sometimes it seems im- perative that this exception be en- forced, as when, by notice, the very purpose of a receiver may be ren- dered wholly nugatory." "A receiver of personal property may be appointed in vacation, with- out notice of the application, before service of process in the suit, in cases in which to require notice would be unreasonable, or would likely defeat the purpose for which a receiver is necessary, and in cases of great emergency, these cases con- stituting exceptions to the general rule requiring notice. "Where notice is not given, the bill should, in addition to showing the necessity for the appointment of a, receiver, set out the grounds which excuse failure to give notice, or they must at least appear by the affidavits filed in support of the application." Baltimore Bargain House v. St. Clair, 58 W. Va. 565, 52 S. E. 660. See Ward v. Hotel Randolph Co., 69 W. Va. 197, 71 S. E. 105. In Verplanck v. Mercantile Ins. Co., 2 Paige Ch. (N. Y.) 450, 2 L. Ed., 984, 985, the court says: "By the settled practice of the court in ordinary suits, a receiver can not be appointed ex parte, be- fore the defendant has had an op- portunity to be heard in relation to his rights, except in those cases where he is out of the jurisdiction of the court or can not be found, §773 Equity Peocedube 998 sary.^" If a court improperly appoint a receiver, or do so without notice in a case in which notice should be given, the action of the court below in such a case will be reversed on appeal." § 772. Upon whom the notice of the application for the ap- pointment of a receiver must be served. The notice is served in the manner in which a summons or ordinary notice is served, ^^ and upon the debtor and any other parties to the suit who are interested in the property adversely to the applicant.'^ Thus, when the application is for the ap- pointment of a receiver of real estate or its rents and profits, the notice should be served upon the owner or tenant of the land." § 773. How the application for the appointment of a receiver is made. It is not provided by statute in the Virgmias how the appli- cation for the appointment of a receiver shall be made, but, ac- cording to the practice generally obtaining in a court of equity, or wlierc, for some otlier roason, it 107, 71 S. E. 105; McDermott v. becomes absolutely necessary for Pentress Gas Co., 82 W. Va. — . 95 the court to interfere, before tliere S. E. 841. is time to give notice to tbe oppo- •'''i Vosbell v. ITynson, 26 Md. 83; site party to prevent tlie destruc- liuffner v. Mairs, 33 W. Va. 655, tion or loss of property. Formerly 11 S. E. .'5: Va., Tenn. and Car. it was never done until after an- Steel and Iron Co. v. Wilder, 88 swer. Vaiui v. Barnett, 2 Bro. Cb. Va. 042, 14 S. E. 806. See West l.')7; Maguire v. Allen, I Ball & I>. Virginia cases cited in two preced- 75; Tatifield V. Irvine, 2 Kuss. 140; ing notes. Coward v. Cftadwick, idem, 150, ■■■'- Wabasb R. R. Co. v. Dykeman, note: People v. 'Norton, 1 Paige 133 Ind. 56, 32 N". E. 823. See 17." ante, §15; 2 Daniell, Ch. PI. and MOgden V. Cbalfant, 32 W. Va. Pr. (6tli Am. Ed.), 1736. .')5!), S. E. 874; Batson V. Findley, r..-! Sec same citations. 52 W. Va. .?43, 43 S. E. 142; Ward b4 Hutton v. Lockridge, 27 W. Va. V. ilotel Pandolpb Co., 60 W. Va. 428. 999 Receivers § 773 it is usual to set forth the grounds upon which the appointment is sought in the bill of complaint, duly verified by the affidavit of the plaintiff,^' and to move the court or judge to make the appointment, or present a petition asking therefor, the motion or petition being based upon the case made by the bill.^'' In "Wilson V. Maddox,^'' the court, in its opinion as to the appoint- ment of a receiver upon the averments of the bill, says: "When the application for a receiver is made before decree, it will not be granted, unless the bill contains a specific prayer that a re- ceiver may be appointed ; and the facts relied on for this char- acter of relief should be distinctly and specifically set forth, and not merely alleged in general terms. "^^ Thus, for instance, in West Virginia, when a dissolution of a corporation has been made by resolution of its stockholders under a statute of that state,^^ if a creditor ask a court of chancery to administer its assets through a receiver or otherwise, the bill must state, as a basis of jurisdiction, the failure of the corporation to provide ample funds sufiiciently to secure the debts of the corporation, esKrohn v. Weinberger, 47 W. -"46 W. Va. 641, 33 S. E. at p. Va. 127, 34 S. E. 746; Hogg, Eq. 778. Princ, §140, citing Kerr v. Hill, ss The court cites in support of 27 W. Va. 576, and especially at tins principle, Tliompsen v. Diffen- pp. ."584-586; Reynolds v. Qniclc, 128 derfer, 1 Md. Ch. 480; Eairbairn \. Ind. 316, 27 N. E. 621; Sellers v. Fisher, 57 N. C. 390. The court ob- Stoffel, 139 Ind. 468, 39 N. E. 52-; serves as to tlie answer in this case: Bloodgood V. Clark, 4 Paige Ch. "It may be said in reply to this 574, 3 N. Y. Ch. (L. Ed.) 567, and that the answers in the case at bar note; Harris v. U. S. Sav. F. and were not sworn to, and these au- Ins. Co., 146 Ind. 265, 45 N. E. thorities can not apply. Section 328. 38, chapter 125, Code, provides tha+ "An appointment of a receiver, 'if the bill be not verified the de- though the bill ask it, made with- fendant need not verify his answer, out process served, and before de- and if he does so it shall not be cree on the merits, without affidavit entitled to any more weight in the to support the application, is er- cause that if it had not been veri- roneous." Ward v. Hotel Randolph fied.' So that under our statute it Co., 69 W. Va. 197, 71 S. E. 105. has the same effect as if sworn to, -oHogg, Eq. Princ, §140; 2 plaintiff's bill not being verified." Bates on Fed. Eq. Prac., §5Sfi: ^^^ W. Va. Code, 1913, c. 53, §56. Hungerford v. Pushing. 8 Wis. 320. §774 Equity Procedure 1000 as required 'by sueh statute."" If the appointment of a receiver is refused, a further application may be made upon new facts. ^^ § 774. Who should be appointed a receiver. As a rule, a receiver should be an impartial and indifferent person, not identified with, or biased in favor of, any of the conflicting interests involved in the litigation.^^ His past rela- tions, the influences that secure his appointment, his sympathies from whatever cause, must not be such as to predispose him either way.*"^ The selection of a suitable person rests very much in the discretion of the court, and will rarely be inter- fered with by an appellate court. "'' The court will not ordi- narily appoint one who is a party to the cause,"' except, perhaps. 60 Law V. Rich, 47 W. Va. 634, 35 S. E. 858. For a discussion in general of the sufficiency of tlie allegations of the bill, see post, §§ 776, 777. 81 2 Beach, Mod. Eq. Pr., § 729. See also, Nash v. Meggett, 89 Wis. 486, 61 N. W. 283; Jones v. Thorne, 80 N. C. 72. Refusal to appoint a receiver ot mortgaged property before judg- ment is not a bar to such appoint- ment more than a year after .judg- ment, where damages have talcen place in the value and circum- stances of the property and the re- sponsibility of the debtor. Nash v. Meggett, 89 Wis. 486, 61 N. W. 283. 62 2 Daniell, Ch. Pr. (6th Am. Ed.), 1732; 1 Bart., Ch. Pr. (2nd Ed.), 529; 2 Bates, Fed. Eq. Proc, §595; ante, §761; 2 Beach, Mod. Eq. Prac, § 725. To this end, he should be appointed by a disinter- ested judge. Bank of Marlinton v. Pocahontas Development Co., 106 S. E. 881 (W. Va. 1921). 63 2 Beach, Mod. Eq. Pr., § 725. 64 Shannon v. Hanl?,?>." 101 Morgan v. K. Y. & A. R. Co., 10 Paige Ch. (N. Y.) 290, 4 L. Ed. 981, 40 Am. Dee. 244: Hilton Bridge Const. Co. V. N. Y. Cent. & H. R. R. Co., 145 N. Y. 390, 40 K. E. 86; Collins V. Collev (X. J.), 11 Atl. ]\i 10= 2 Beach, Mod. Eq. Pr., § 742. 103 Idem. § 781 Equity Procedure 1008 § 780. As to suits by and against receivers. In addition to what has already been said'"* as to suits by and against receivers, it may be well to state that in suits brought by receivers they occupy substantially the same position as the original parties over whose estate they were appointed, and any defense which might have been made against the orig- inal party is also available against the receiver.'"^ To sue a receiver without leave of the court is a contempt of the court appointing him,'"^ and such suit may be restrained by injunc- tion.'"" It is usual for the court to decide all claims and de- mands against its receiver by petition in the suit in which he was appointed, instead of authorizing an independent suit.'"^ But, if leave to sue be given, as a general rule, leave will not be granted to sue in any other court than the one by which he was appointed.'"' § 781. As to the court granting leave to sue its receiver — When leave to sue not necessary. Upon an application to sue its receiver, the court will first determine whether there is apparent cause of action ; '"• and though it should determine that such cause exists, it ma.y, never- theless, in the exercise of its discretion, refuse its leave to sue, and retain the issues for a hearing in equity, as well where they are legal as where they are equitable."' 104 Ante, § 65. 581 ; First Xat. Bank v. Wire 105 2 Beach, Mod. Eq. Pr., § 742, Works, 58 Mich. 315, 24 N. W. 543, citing Litchfield Bank v. Peck, 29 25 idem 202. See Bowman v. Lig- Conn. 387; Jacobson v. Allen, 20 key, 108 Va. 078, 62 S. E. 942. Blatchf. 525, 12 Fed. 4.54. loo 2 Beach, Mod. Eq. Pr., §745; 100 Beach on Receivers, §653; Central Trust Co. v. Wabash, St. L. Wiswall V. Sampson, 14 How. (U. & P. R. Co., 23 Fed. 858; Hogg, S.) 65, 66, 67, 14 L. Ed. 322; Davis Eq. Princ, § 143. V. Gray, 16 Wall. (U. S.) 203, 218, no Merritt & Dyckman v. Merritt 21 L. Ed. 477. & Lyon, 16 Wend. (N. Y.) 405, 12 107 Evelyn v. Lewis, 3 Hare 472; L. Ed. 1143; Palys v. Jewett, 32 N. Parr v. Pell, 9 Ir. Eq. 54; Tink v. J. Eq. 302. Riindle, 10 Beav. 318; Kennedy v. m Melendy v, Barbour, 78 Va. Indianapolis, etc., R. Co., 2 Flip. 544; Reed v. Axtell, 84 Va. 231, 4 704, 3 Fed. 97. S. E. 587: Barton v. Barbour, 104 108 Melendy >-. Barbour, 78 Va. U. S. 126, 26 L. Ed. 672, 4 Am. 544; Olds v. Tucker, 35 Ohio St. and Eng. R. Gas. 1. 1009 Receivers § 782 As we have seen/^^ in Virginia in certain cases a receiver may be sued without leave of court. So by act of Congress, now in force,^^' a receiver appointed by a federal court may be sued without leave of such court. If the court declines to grant leave to sue the receiver, the matter is disposed of in the suit in which the receiver was appointed, by the rules of equity practice as the nature of the cause may demand, aS by the court itself, by a jury upon an issue out of chancery, or by a commis- § 782. The bond and security of the receiver. As we have shown, ^^^ the order appointing a receiver directs bond and security to be given by him. This will be required of him by the court for the faithful discharge of his trust,^^* unless dispensed with,^'" which may be done in some cases, as where the receivership is connected with other proceedings in which the parties are already protected by adequate security ; ^^^ ■or where the sheriff of the county is appointed ; ^''■^ or where the receiver is appointed by consent, in which event his own recognizance may be accepted as sufficient.'^" If the order appointing a receiver omit the requirement of bond, and none is given, this can not avail as a defense to an action brought by ii=.l«ic, §65. iioTomlinson v. Ward, 2 Conn. Leave of court is not necessary 396 ; Mead v. Query, 3 Atk. 235 ; in order to sue a receiver appointed Carper v. Hawkins, 8 W. Va. at p. by an executive oflScer; nor is leave 304. of such executive officer necessary. i" Beacli on Receivers, § 173; Dil- Alleman v. Sayre, 79 W. Va. 763, ling v. Foster, 21 S. C. 335, 339. 91 S. E. 805. 118 2 Beach, Mod. Eq. Pr., § 726. 113 25 U. S. St. at L., pp. 433, 436, no Ante, § 779. Act of Congress, March 3, 1887. 120 rdem. 11^ Belleville v. Citizens' Horse A trust company properly doing Ry. Co., 152 111. 171, 38 N. E. 584, business under the laws of West 26 L. R. A. 681; Kennedy v. Indian- Virginia may act as receiver with- apolis C. & L. R. Co., 2 Flip. 704, 3 out giving bond, its capital and Fed. 97; Reed v. Axtell, 84 Va. 231, deposits being regarded as the 4 S. E. 587; Melendy v. Barbour, 78 equivalent of a bond. Goff v. GoflF, Va. 544. 54 W. Va. 364, 46 S. E. 177. lis Ante, §779. § 783 Equity Peocedure 1010 such receiver ; 12* but where bond is required and not given, sach omission, £is we have seen,^^^ is fatal to the maintenance of a suit by the receiver ; ^^^ and the fact of his appointment and that bond has been given should be averred in the bill, as well also as that the court's consent to bring suit has been obtained.^^* The amount of the bond is determined by the value or magni- tude of the interests committed to the charge of the receiver.^^^ The court, in its discretion, may accept sureties resident outside of the jurisidiction of the eourt.^^^ § 783. The property over which a receiver may be appointed. ' ' The property a receiver is most commonly appointed to take charge of is: (1) property levied on by attachment or execu- tion and liable to perish or deteriorate pending the suit; (2) goods, wares, and merchandise involved in the litigation; (3) judgments, notes, accounts and other claims attached or im- pounded by garnishment; (4) partnership property of all kinds; (5) corporation property of all kinds; (6) real estate belonging to tenantsi in common, or incumbered by liens belonging to other parties and by them sought to be enforced; (7) assets of a de- ceased person; (8) trust property of all kinds; (9) proceeds of waste committed on real estate; (10) rents and profits of all real estate, as of coal, iron or other mines, or of quarries, or of turnpikes or railroads. Indeed it may be stated, generally, that a receiver may be appointed of any kind of property, or of the proceeds of any kind of property, real, personal or mixed, legal or equitable, that may be disposed of by the decree of the court in the cause. "^^^ 121 Wilson V. Weleli, 157 Mass. 155 Ind. 671, 57 N. E. 524, 59 idem 77, 31 N. E. 712. 20; Person v. Loary, 126 N. C. 504, 122 Ante, § 65. 36 S. E. 35. i23Hegewiseh v. Silver, 21 N. Y. las 2 Beach, Jlod. Eq. Pr., §726. Sup. 294; Reynolds v. Pettyjohn, 79 120 Idem. Va. 327; Davis v. Snead, 33 Gratt. 1272 Beach, Mod. Eq. Pr., §719, (Va.) 705. citing Gibson's Suits in Chancery, IS* Dayton v. Connah, 18 How. §844. Pr. (N. Y.) 326; Taylor v. Canady, 1011 Receivers § 784 § 784. The rights and powers of a receiver. Subject to the qualification already stated/^'' the right of the receiver to sue for the recovery of the property over which he has been appointed receiver/^' even to the extent of a suit to set aside all fraudulent transfers and conveyances made by the debtor,!'" is ample, and commensurate with the full purposes of his appointment. !'' But as to the rights or powers of a re- ceiver, it must always be bornfe in mind that he has none except those conferred by the order or decree of the court appointing him,!'^ or such as may properly be inferred therefrom. ^'^ When thus empowered or authorized, he may pay a debt as gar- nishee ; !'* so he has a right to the undisturbed possession of the property committed to his charge free from any suit, unless the same be directed by the court appointing him;!'^ so, with the court's sanction, he may lend money in his possession as such receiver ; ^^^ and with such sanction, he may incur any necessary expenses, or contract any debts, to be charged against the prop- erty of the receivership ; ^^'' and the receiver of a corporation 128 Ante, § 6.5. But as a rule, a receiver, being 129 Ante, 1 65 ; Alston v. Mas- an officer of the court, can not be senburg, 125 N. C. 582, 34 S. E. 633. made a garnishee. Hogg, Bq. 1.10 Reynolds v. Aetna Life Ins. Princ, §42, p. 72; Boylan v. Co., 160 N.. Y. 635, 55 N. E. 305; Fines, 62 W. Va. 486, 59 s" E. 503, Mandeville v. Avery, 124 N. Y. 376, 13 L. R. A. (N. S.) 757, 125 Am. 26 N. E. 051, 21 Am. St. Rep. 678; St. Rep. 983. Ward V. Petrie, 157 N. Y. 301, 307, The principles announced in the 51 N. E. 1002, 68 Am. St. Rep. 790. latter case as applying to special 131 See same citations. commissioners undoubtedley would 132 Davis s'. Snead, 33 Gratt. be applied to receivers. But when (Va.) at p. 710; Reynolds v. Petty- an officer of the court has been John, 79 Va. at p. 331 ; Verplanek ordered to disburse, the rule ceases V. Mercantile Ins. Co., 2 Paige Cli. to operate, as the funds are no (N. y.) 452, 2 L. Ed. 980, and longer in custodia legis. Mem. note; City Bank of Wheeling v. isr. 1 Bart., Ch. Pr. (2nd Ed.), Bryan, 76* W. Va. 481, 86 S. E. 8. 524: City Bank of Wheeling v. 133 1 Bart, Ch. Pr. {2nd Ed.), Bryan, 76 W. Va. 481, 86 S. E. 8. .523. "" Hogg, Eq. Princ, § 144; Darby 134 1 Bart, Ch. Pr. (2nd Ed.), & Co. v. Gilligan, 37 W. Va. 59, 16 523, citing People ex rel. Tremper S. E. 507. V. Brooks, 40 Mich. 333, 29 Am. 1 37 J-Togg, Eq. Princ, § 144; Camp- Pep. 5.S4. bell V. Charleston Street Ry. Co., 73 § 785 Equity Procedure 1012 may demand from a registered stockholder an unpaid balance upon the stock, though another may be the equitable owner of said stock.i^* A receiver of real estate is entitled to its rents, and a service of an order of court upon tenants, requiring them to pay their rents to the receiver, holds all rents then in their hands, and all thereafter to become due.^^' And a receiver may distrain for rent without leave of court, as the delay incident to obtaining such leave would in many cases enable the tenant to remove the goods from the premises.^*" § 785. Powers not possessed by a receiver. A receiver can make no binding contract without its author- ization or ratification by the court, and the court has the un- doubted power to vacate or modify any agreement or contract made with the receiver, and to direct the making of another agreement, but such power will not be exercised without a notice to and a hearing of the contracting parties.^*^ So, a receiver can not purchase, for his own benefit, property connected with or forming a part of the subject matter of the receivership, or in his possession in that'capaeity.-'^^^ A receiver has no author- ity, in the absence of direction by the court, to incur any ex- pense as to the property in his possession, not essential to its preservation and use, as contemplated by his appointment.^*^ W. Va. 493, 80 S. E. 809; Jackson of Va. v. Domestic Sewing Machine Coal & C. Co. V. Phillips Line, 114 Co., 99 Va. 411, 39 S. E. 141, 86 Am. Va. 40, 75 S. E. 681. St. Rep. 891. 138 Russell V. Easterbrook, 71 "2 High, Rec. (3rd Ed.), §193; Conn. 50, 40 Atl. 905. See Reed Roller v. Paul, 106 Va. 214, 55 S. & MeCormick v. Gold, 102 Va. 37, E. 558. 45 S. E. 868. 1*3 Beach, Rec. (Aid. Ed.), 252. 130 High, Rec. (3i-d Ed.), § 621. "Due regard must always be had, 1*0 Idem, § 622. not only to the character and nature 141 High, Rec. (3rd Ed.), §186; of the property in the custody of Lazear v. Ohio Valley Steel Foundry the receiver, but to the exigencies Co., 65 W. Va. 105, 63 S. E. 772. which may require action to pre- But "the contracts of a. receiver, serve and save it." Idem. made with express or implied au- See Crumlish's Adrar. v. Shen- thority, can not be annulled at the andoah Va!. R. Co., 40 W. Va. 627, pleasure of the court." State Bank 22 S. E. 90; Felton v. Felton, 47 1013 Receivers § 786 "A foreign receiver of a dissolved foreign partnership will not be permitted to remove the funds of such partnership out of this state [West Virginia], to the detriment of the resident creditors thereof, nor, as against the hona fide claims of the separate creditors of the members of the firm, unless he first show that such firm is insolvent, and that such funds are neces- sary to satisfy the demands against the same, independent of any claim thereto of the debtor partner."^''* § 786. As to the implied powers of a receiver. In addition to the powers contained and specified in the order of the court, the receiver possesses also such additional powers as are conferred by the usage and practice of the court appoint- ing him,*''^ as well also as those which may be fairly implied from such order.^^" Thus, a receiver has not only the power to insure property, but would, under some circumstances, be dere- lict in the discharge of his duty if he failed to do so to protect and preserve the property without waiting for directions from the court. ^" And it is also said that a receiver may enforce a contract, although its consideration be the commission of an act done in violation of the court's order and constituting a breach of his official duty.^'^ So, a receiver may also employ counsel to advise him in the matter of his receivership, but can not fix W. Va. 27, 34 S. E. "53; Campbell correlative duty — powers which, V. Charleston St. Ry. Co., 73 W. Va. when exercised without express au- 493, 80 S. E. 800; .Tackson Coal & thority of the court, it will not C. Co. V. Phillips Lino, 114 Va. 40, deny, and the result of which it will 75 S. E. 681. accept and approve." Idem, p. 251. 144 Grogan v. Egbert, 44 W. Va. "The powers of active receivers 75, 28 S. E. 714, 67 Am. St. Rep. of going concerns are very much 763. broader than those of passive re- i-" 5 Beach, Rec. (Aid. Ed. I, p. 8. ceivers who are charged with the no Idem, p. 253. mere preservation of property." Mr. Beach says that the orders of State Bank of Va. v. Domestic Sew- -the court "do not contain every ing Machine Co., 00 Va. 411, 30 S. right and all authority of the re- E. 141, 86 Am. St. Rep. 801. ceiver: there are implied and inci- !■" Beach, Rec. (Aid. Ed.), 252. dental powers which he may ^i^ Idem, 523. exercise, and which often create a §786 Equity Procedure 101* his compensation.^*' So, where an order appointing a receiver of the estate of infants authorizes him to "collect all moneys due them, to secure, loan, invest, and apply them for the benefit and advantages of said infants under the direction and subject to such rules and orders in every respect as this court may from time to time make in regard thereto," the receiver may collect money due the infant, and invest it, without an additional order of the court.^''" So, "where a receiver is directed to make sale, the authority to sell necessarily carries with it authority to give the purchaser the usual evidence of a transfer of title, the power of the receiver to give the deed being implied from the order of sale. "^^^ A receiver, authorized to make purchases of stock, has no implied authority to execute notes therefor, and will be individually liable on notes so executed, though the payee takes them knowing them to have been executed in the- receiver's representative capacity, under a mistaken belief that the receiver had authority to execute them as such.^^^ "9 Mem, 274, 277; Hulings v. Jones, 63 W. Va. 6!)6, 60 S. E. 874; City Bank of Wheeling v. Bryan, 76 W. Va. 481, 86 S. E. 8. Counsel fees are allowed strictly as receiver- ship expenses, and hence can be al- lowed only by the court appointing the receiver and not by some other court in which he sues. Idem-. "A receiver will be allowed fair and reasonable counsel fees paid to counsel necessary in the execution of his receivership. But the pay- ment of large contingent fees can not be provided for by the court, no matter how great and peculiar their merit may be. This is a mat- ter of express contract to be left to the attorneys and their clients. And the practice of allowing to counsel employed by receivers large and extravagant fees is discounte- nanced and disapproved by the courts." • Hogg, Eq. Princ, § 148, citing Crumlish's Admr. v. Shenan- doah Valley R. Co., 40 W. Va. 627, 22 S. E. 90. '•■'"Alston V. Massenburg, 125 N. C. 582, 34 S. E. 633. i.'.iHogg, Eq. Princ, § 144, p. 233, citing 1 Bart., Ch. Pr., 404, 495 (2nd Ed., p. 527). i''2 Peoria Steam Marble Works V. Hickey, 110 Iowa 276, 81 N. W. 473, 80 Am. St. Rep. 296, citing Lee V. Percival, S.> Iowa 639, 52 N. W_ 543; Smith v. Watson, 88 Iowa 79,. 55 N. W. 68; Capital Savings Bank & Trust Co. v. Swan, 100 Iowa 722, 60 N. W. 1065; Williams v. Hamil- ton, 104 Iowa 428, 73 N. W. 1029, 65 Am. St. Rep. 475; Dunne v. Deery, 40 Iowa 251 ; Livermore v. Rand, 26 N. H. 85; Winter v. Hite, 3 Iowa 142; Thilmany v. Paper Bag Co., 108 Iowa 357, 79 y. W. 261, 75 Am. St. liep. 259; Sperry v. Fan- ning, 80 III. 371: Rollins v. Marsh, 1015 Receivers § 788 § 787. As to the discretion of a receiver touching his receiver- ship. There are many instances in which a receiver may exercise his discretion, in the exercise of his duties as such, as to the care and management of the property committed to his charge, subject, however, to the control and approval of the court ;^" and such approval will not be withheld, if it appear that the re-- eedver acted in good faith and for the benefit of the parties interested.^^* Thus, where a receiver of a hotel, who was carry- ing on the business, cashed a check for a guest, it was held to be a prudent exercise of discretion and that the receiver was not liable for the loss occasioned by the check being dishonored.^^^ A reliable author, treating on matters of discretion, says that "a receiver is not allowed to exercise his discretion in applying the funds in his hands. These he holds strictly subject to the direction of the court, and only to be disposed of upon its order. ""6 § 788. As to the duties of a receiver. A receiver holds the relation of trustee to the property in his control, and must bring to the discharge of his duties with refer- ence to the care and management of such property the same measure of skill and personal supervision that he would give to the estate if it were his own,^^' His paramount duty is to obey and follow the orders, of the court appointing him, so far as the property in his care is concerned, ^^^ and in the absence of spe- cific directions he must take charge of the property and safely keep it, subject to the future order of the eourt.^^^ "When the receiver has been appointed to take possession of property and 128 Mass. 116; Duvall v. Craig, 2 i so Beach, Rec. (Aid. Ed.), 271, Wheat. (U. S.) 45, 4 L. Ed. 180; citing, among other cases, Penn v. Gill V. Carmine, 55 Md. 339. Whitehead, 12 Gratt. (Va.) 74. 103 Beach, Reo. (Aid. Ed.), 270. i" Beach, Rec. (Aid. Ed.), 303. 154 Mem. '^* Idem, 304; Lyle v. Sarvey, 104 'ssHeffron v. Rice, 149 111. 216, Va. 229, 51 S. E. 228; Roller v. 36 N. E. 562, 41 Am. St. Rep. 271. Paul, 106 Va. 214, 55 S. E. 558. 109 Beach, Rec. (Aid. Ed.), 304. §788 Equity Procedure 1016 qualified, he should at once demand possession of the same and take the necessary steps to obtain the possession thereof. If property is lost as the result of a failure to exercise reasonable diligence in reducing the same into his possession, he will be charged with the value thereof." ^*'' Another of his duties is to prepare a true and complete inven- tory of the property and effects which come into his hands, and to keep fair and accurate accounts of all money and funds re- ceived and paid out by him.^^^ "The assets which he holds as receiver should be kept sepa- rate from his own, and in no wise intermingled therewith, the penalty for this breach of duty being usually the charge of in- terest to the receiver upon the fund which came into his hands. ''His accounts should be presented in such a form as to enable the parties interested to judge of their correctness, and for all charges against the trust fund he should take proper receipts from the persons to whom he has paid the money, and exhibit them with his report. The receiver is held to great strictness with reference to his accounts; and when he fails to produce vouchers for disbursements, a satisfactory reason should be given. When items appear in the account for which there are no vouchers, a verified statement should be filed showing to whom, for what and when such items were paid, and the verifica- tion should be positive.""^ "When a receiver is appointed to get in outstanding personal property, it is his duty to collect all that he can get at ; to enable him to do which, the order, under which his appointment is made, usually directs the parties to deliver up tu him all securities in their possession for such property, together with all books and papers relating thereto. If the parties in whose 160 Hogg, Eq. Princ, § 144, p. 233. Va. 641, 72 S. E. 737; Boiler v. See U. S. Blowpipe Co. v. Spencer, Paul, 106 Ya. 214, ")."> S. E. .5.5S. 61 W. Va. 191, 56 S. E. 34.1. loi Hogs. Eq. Princ., § 147, citing A failure to obey the court's or- P>eacli, Eec. (Aid. Ed.), §746, p. der to lend funds makes liira lialilo 706. for interest. Cecil v. Clark, 69 W. in^7(?rr)7, citing Beach, Eec. (Aid. Ed.), §§796, 798. 1017 Receivers § 790 hands such securities or papers are refuse to deliver them up, tue receiver should give notice of such refusal to the party con- ducting the proceedings, to the intent that he may take the necessary steps for enforcing the order. "*^' § 789. The receiver may ask the advice of the court as to his duties. "A receiver has a right on his ovra motion, to apply to the court for instructions in relation to the funds, when a question arises as to what may be his duty under its orders. This right grows naturally out of the fact that he is an officer of the court and subject to its direction, and is charged with responsible and often embarrassing duties. He is entitled to advice from the court upon all questions of difficulty or intricacy, and may make application for it on all suitable occasions without hesita- tion. It has been more forcibly said that he is bound in all eases of doubt, and especially of conflicting interests or claims, to take the direction of the court. "■'^^ The application may be made without notice to the parties interested, but if there is no necessity for immediate action, it is the better practice to give notice.^ ^' § 790. The compensation of a receiver. The statiite law is silent as to the compensation of a special receiver, so that this matter is referred to, and determined by, the discretion of the court. ^"^ "But while the character, time and amount of the compensation are left to the sound discretion of the court, it is only in the sense that there are no fixed rules to determine the proper allowance, and it is not discretionary in the sense that the courts are at liberty to give anything more than a fair and reasonable compensation, and while the court that appoints him is better situated to judge of the amount of 163 2 DanieU, Cli. PI. and Pr. (gtli les Hogg, Eq. Princ, § 146; Nut- Am. Ed.), 1750. tor v. Brown, 58 W. Va. 237, 52 S. J'-JBeacli, Pec. (Aid. Ed.), 272, E. 88. 1 L. P. A. (N.S.) 1083; 273. Campbell v. Cliarleston St. Ry. Co., 105 Idem, 272. 73 W. Va. 493, 80 S. E. 809. § 79] Equity Procedure 1018 the compensation of the receiver than an appellate court, yet the latter has a supervisory jurisdiction of the lower court in the matter, and will exercise it when the justice of the case de- mands it; but the action of the lower court is treated as pre- sumptively correct. The compensation is usually determined by the circumstances of the particular ease, and in accordance with the degree of the responsibility and business ability required in the management of the aflPairs intrusted to the receiver, and the perplexity and difficulty involved in that management. ' ' ^^^ The character of the compensation may take the form of a salary, to be increased with the varying circumstances of the case, or commissions regulated by the rule applicable to trus- tees, guardians and other fiduciaries, or a gross sum for the entire services. And' the payment of the compensation may be made at stated intervals, and from time to time as the court in its discretion may prescribe.^^^ "With us there is no fixed rule as to the mode of allowing compensation to a receiver; but when the fund is large, it is usual to allow him a specific sum. "^^^ However, the amount and mode of allowance are within the sound discretion of the court, under the circum- stances of the particular case, subject, however, to review on appeal.^'"* § 791. The effect of the appointment of a receiver. The appointment of a receiver does not divest the property of prior existing liens, only affecting the time and manner of their enforcement ; ^'' nor does the appointment of a receiver adjudicate the right of possession, or terminate any right be- 167 See same citations. W. Va. 696, 60 S. E. 874. But re- 168 Hogg, Eq. Princ, § 146, citing ceiverslilp expenses may take pri- Beach, Kec, 822-845. ority even to pre-existing liens. 169 Idem, citing Crumlish's Admr. City Bank of Wheeling v. Bryan, 76 V. Shenandoah Val. E. Co., 40 W. W. Va. 481, 86 S. E. 8; People's Va. 627, 22 S. E. 90. Nat. Bank v. Va. Textile Co., 104 iio Idem. Va. 34, .51 S. E. 15,5; Jackson Coal 171 Beach, Rec. (Aid. Ed.), 194; & C. Co. v. Phillips Line, 114 Va. Harman v. McMullin, 85 Va. 187, 40, 75 S. E. 681. 7 S. E. 349; Hulings v. Jones, 63 1019 Receivers § 792 tween the pa-^+ies, or in any manner affect the title to the prop- erty."^ The lien of an execution is not affected in the Virginias by the appointment of a receiver of the property upon which such lien exists, though such property is incapable of being levied on because in the custody of the receiver."^ Where a receiver is appointed to administer the assets of an insolvent corporation, a creditor not a party to the petition, but who has a right to make himself a party if he desires, can not bring an independent action for the appointment of another receiver, but must seek his remedy in the same court and in the original suit."^ § 792. The discharge of a receiver. The power of the court to discharge a receiver is a necessary adjunct to the power of appointment and may be exercised at any stage of the litigation.^^^ A final decree, terminating the litigation in which the receiver was appointed, usually termi- nates his functions.^'* But the mere discontinuance or abate- ment of the suit does not ipso facta operate a discharge of the reeeiver.^''^ The party who has procured the appointment of a receiver can not have him discharged until the latter has passed his accounts.^^* The receiver will not be discharged upon his own application, in the absence of some reasonable ground therefor.^'^ Where the defendant debtor satisfies the plaintiff 'a claim, he is entitled as a matter of right to a discharge of the receiver, and it is error to refuse to do so.^^° The court will, of its own motion, discharge a receiver if his appointment was i72Beacli, Eec. (Aid. Ed.) , 197. 413; Ireland v. Nichols, 40 How. 173 Davis V. Botiney, 80 Va. TS.^, Pr. 8.5. 17 S. E. 229; Frayser T. E. & A. R. i't McCosker v. Brady, 1 Barb. Co., 81 Va. 388. See additional Cli. (N. Y.) 34fi; Whiteside v. cases cited in note 171, supra. Prenflerfiast, 2 Barb. Ch. (N. Y.) iJ* National Bank v. Tiicbmond 471: Ireland v. Nichols, 40 How. Factory. 91 Ga. 284, 18 S. E. IGO. Pr. (N. Y.) 85; State v. Gibson, iTr, 2' Beach, Mod. Eq. Pr., § 7.')0. 21 Ark. 140. iTO Beverly v. Brooke, 4 Gratt. '"2 Beach, Mod. Eq. Pr., §750. (Va.) 220; Field v. Jones, 11 Ga. n« Idem. ISO Idem. § 792 Equity Procedure 1020 fraudulent and collusive.^'*' "When the plaintiff neglects to proceed with the cause, after obtaining the appointment of the receiver, he will be discharged. So a receiver may be dis- charged on account of irregularity in the appointment; or where it is for the interests of the parties concerned; or where the abject of the receivership is attained. A receiver of the estate of an infant will not be discharged until a year after the infant's majority, unless the ward, after majority, consents to his discharge. The entry of a final decree which does not pro- vide for the continuance of a receivership supersedes the ap- pointment of a receiver. The plaintiff, the defendant, the re- ceiver himself, or any one injured by the appointment of a receiver, although not a party to the suit, may apply for the discharge of the receiver. Notice of the proceedings must be given to all the parties interested." ^^^ 181 Idem. to the extent of having its receiver 182 Idem. make proper restitution of funds in Although a suit terminate for liis liands. Beardsley Co. v. Ash- want of jurisdiction, still the court down & Co., 73 W. Va. 132, 80 S. has jurisdiction to retain the cause E. 128. CHAPTER XXXII ATTACHMENTS § 793. As to attachments in equity. § 794. Concurrent remedy at law and in equity as to attachments. § 795. The affidavit for an attachment. § 796. What a sufficient affidavit for an attachment. § 797. Supplemental affidavit. § 798. Amendments as to clerical errors and omissions in the affidavit. § 799. Before whom the affidavit for an attachment may be malde. § 800. By whom the affidavit may be made. § 801. Certain omissions deemed fatal to tlie affidavit. fs 802. When the affidavit for an attachment may be made. § 803. The endorsement to be made upon the summons. i 804. The process in or order of attachment. § 805. The attachment bond. § 806. The levy of the attachment and the return thereof. I 807. On what estate an attachment may be levied. § 808. Equity practice as to attachments. § 809. Who may defend an attachment. § 810. The defenses to the attachment. — Motion to quash. § 811. What matters apparent on the record will operate to quash or abate the attachment. § 812. Defenses to the attachment for matter dehors the record. § 813. How issue on plea in abatement of the attachment is tried. § 814. Burden of proof on trial of issue controverting the grounds of at- tachment. § 815. As to the evidence on the trial of the issue controverting the grounds of attachment. § 816. The effect upon the suit of the failure of the attachment. § 817. When objections to the validity of the attachment should be raised. § 818. The effect of giving bond whereby tlie property attached is returned to the defendant. § 819. To whom the bond for the release of the property attached is pay- able and the penalty thereof. S-S20. Where bond for release of attached property returned and filed. § 821. Application of interest and profits of attached property; and dis- charge of attachment on defendant's giving bond. § 822. The care and custody of property attached. 1021 §793 Equity Peoceduee 1022 § 823. How attaclied property that is expensive to keep or perisliable may be sold. § 824. Who may intervene in an attachment proceeding to contest its validity. § 82.5. The intervener's petition in an attachment suit. § 826. How the matter arising upon the petition of an intervener in an attachment proceeding is tried. § 827. The issue to be tried by the jury in cases of intervention in an attacliment. § 828. The trial of the intervener's case before the jury. § 820. How a party may be summoned to answer as garnishee. ^ 830. Who may be garnisheed. § 831. Same subject further considered. § 832. The garnishee a necessary party to the suit in equity. § 833. As to the defenses which may be made by the garnishee. § 834. Proceedings upon the appearance of the garnishee. § 835. As to the answer of the garnishee. § 836. The answer of the garnishee further considered. § 837. Nature of debt against garnishee to authorize a decree against him. § 838. When garnishee may object to irregularities in the attachment pro- ceeding. § 839. Can be no decree against garnishee until plaintiff has established his claim against the debtor. § 840. As to the priority of liens in attachment proceedings. § 841. The decree against the garnishee. § 842. Sale of attaclied realty. § 793. As to attachments in equity. In West Virginia, an attachment may be sued' out in a court of equity upon any of the grounds mentioned in the statute for a debt or claim, legal or equitable, whether the same be due or not, but the affidavit, in case the debt or claim be not due, must show when the debt will become due ; ^ " but an attachment can not be sued out against a foreign corporation, nor against a nonresident defendant for a debt not due, unless it is shown by the affidavit that such defendant was a resident of the State when the debt was contracted, and that the plaintiff believed he would remain a resident of the state at the time he gave the defendant credit."- By virtue of this statute, in two "' Hogg, Eq. Princ, § 36, citing This statute does not extend the W. Va. Code, IfllS, c. 106, § 1. ordinary field of equitable jurisdic- -Jclem. tion except to the extent of pennit- 1023 Attachments § 793 classes of cases, the jurisdiction of a court of equity is exclu- sive: first, where the claim sought to be enforced is purely an equitable one ; second, where the demand sued on is not due.' In Virginia, an attachment suit may be brought in a court of equity when a person has a claim, legal or equitable, to any specific personal property, or a like claim to any debt, whether such debt be payable or not, or to damages for the breach of any contract, express or implied, if such claim exceed twenty dollars, exclusive of interest.^ "But a court of equity has no jurisdiction to enforce by attachment a claim to a debt not pay- able, when the only ground for the attachment is that the de- fendant, or one of the defendants, against whom the claim is, is a foreign corporation, or is not a resident of this state, and has estate or debts owing to the said defendant within the county or corporation in which the suit is, or is sued with a defendant residing therein."^ The law of Virginia, as it appears in the Code,^ gives many grounds for attachments, making such rem- edy applicable to almost every claim against residents (coming within the conditions), and against nonresidents, except to a claim for damages for a wrong, legal demands arising on con- tracts, whether due or not, being expressly embraced.'' The remedy in equity in both of these states is very comprehensive. ting an attachment in equity on a pendent ground of equitable juris- purely legal demand when the de- diction, e. g., fraud, exists, the jur- mand is not due. The statute does isdiction is concurrent between law not extend chancery jurisdiction so and equity. But where a purely as to permit an attachment in legal demand is asserted, aided by equity for damages arising ex de- no independent equity, the mere licto. Swarthmore Lumber Co. v. fact tliat grounds for an attach- Parks, 72 W. Va. 625, 79 S. E. 723; ment exist does not give equity Mabie v. Moore, 75 VV. Va. 761, 84 jurisdiction. See eases cited in the S. E. 788. Of course, such jurisdic- preceding note, tion could not be aided by that part * Va. Code, 1904, § 2964. of the statute referring to a debt or s i Bart., Ch. Pr. (2nd Ed.), 612. claim not due, as there is no such See Va. Code, 1904, § 2964; Mingo thing as damages not due. v. Purdy, 87 Va. 472, 12 S. E. 970. See Piedmont Grocery Co. v. » Reference is made to the Code Hawkins, 98 S. E. 152' (W. Va. of 1904, §2964. ]ni9). 7See Va. Code, 1904, §2964; 1 3 Hogg, Eq. Princ, §36. Where Bart., Ch. Pr. (2nd Ed.), 614. the demand is legal, but some inde- § 795 Equity Proceduee 1024 § 794. Concurrent remedy at law and in equity as to attach- ments. In West Virginia, the circuit courts have concurrent juris- diction at law and in equity in all cases where a legal demand is linked with some ground of equitable jurisdiction additional to the bare demand, except where the debt or claim is not due, or is of an equitable nature, when equity has exclusive juris- diction.* In Virginia., courts of law and equity have concur- rent jurisdiction in all cases, except in actions e:c delicto, in which courts of law have exclusive jurisdiction, and in suits of an equitable nature, in which courts of equity alone have jurisdiction.^ § 795. The aflBdavit for an {.ttachment. The necessary affidavit, which is generally written out and filed with the clerk, though it is not necessary that it be signed by the affiant,^" is essential to the court's jurisdiction in the issuance of an attachment. ^^ The law regulating the procedure should have a strict construction,^^ and the affidavit should 8 See Hogg, Eq. Princ, § 36 ; W. action or suit is or is about to be Va. Code, 1913, c. 106, § 1; Swarth- brought. This affidavit lies at the more Lumber Co. v. Paries, 72 W. foundation of the proceeding, and Va. 625, 70 S. E. 723: Mabie v. without it the attachment can not Moore, 75 W. Va. 761, 84 S. E. 788. lawfully issue." Iludkins v. Has- Equity has no jurisdiction when kins, supra. the demand is purely legal and no See Taylor v. Sutherlin-Meade independent ground of equitable Tobacco Co., 107 Va. 787, 60 S. E. jurisdiction exists. See same eita- 132, 14 L. R. A. (N.S.) 1135. tions. 12 JlcAllister v. Guggenlieimer, 91 »Va. Code, 1904, §§2959, 2964; Va. 317, 21 S. E. 475; Barnett v. Whitehead v. Coleman, 31 Gratt. Darnielle, 3 Call (Va.) 413, 415; (Va.) 789. Jones v. Anderson, 7 Leigh (Va.) 10 1 Bart., Ch. Pr. (2d Ed.), 625. 308; Dorrier v. Masters, 83 Va. 11 Drake on Attachment (6th 459, 2 S. E, 927; Hogg, Eq. Princ, Ed.), §87; Hudkins v. Haskins, 22 §39. W, Va. 645, 650. In Jones v. Anderson, snpra. "The order of attachment can Carr, J., speaking as to the eon- only issue when the prescribed affi- struction of the attachment law, davit has been made and filed with says: "This is a case of attach- the clerk of the court in which the nient, which being a summar-? 1025 Attachments §795 materially conform to the requirements of the law." The stat- ute prescribes the matters necessary to be alleged in the affi- davit,''' and it must contain substantially every statement thus prescribed,'^ though it need not follow literally the language of the law.'" The affidavit must be sufficient in itself and on its face to authorize the order of attachment. It can not be supplemented by subsequent affidavits or proofs. In other words, the affidavit can not be amended.'^ But the rule for- bidding amendments to the affidavit is not infringed by the correction of certain clerical mistakes and mere matters of form in the affidavit.'^ It must also show on its face that the party purporting to make the affidavit was sworn, and if it contains process, and liable to abuse, ouglit to be carefully watclieil by tlie courts, and kept within tbe bounds prescribed by tbe statute. I do not mean tbat tbe party must be lield to tbe very letter, and tbat tbe sligbtest departure from it is to be caugbt at, to set aside tbe pro- ceeding; but tbat tbere sbould be, at least, strictness and certainty to what my lord Coke calls a, •common intent in general.' " In Dorner v. Masters, supra, Kieliardsoii, .!., says: ' ''It is true tbe attaelinient proceeding is a sum- mary and liarsb remedy, and is doubtless often mucb abused, and wbile it sbould be strictly, it sbould at tbe same time be rationally, con- strued. It must be borne in niind, however, tbat it was the will of tbe Legislat\ire tbat made it sum- mary and necessarily harsh, and tbat tbe rule of strict construction was designed for the protection of the debtor defendant." Among the later cases, see Taylor V. Sutherlin-M<'iule Tobacco Co., 107 Ya. 7S7, 00 S. E. 132, 14 L. R. A. (K.S.) IIS.'J; Damron and Kelly v. Citizens' Xat. Bank, 112 Va. 544, 72 S. E. 153; Home Distilling Co. V. Ilimmel, 74 W. Va. 756, 82 S. E. 1094. 13 Hogg, Eq. Princ., § 30, citing numerous West Virginia cases. See Taylor v. Sutberlin-Meade Tobacco Co!, 107 Va. 787, fiO S. E. 132, 14 L. R. A. (N.S.) 1135. For applica- tions of the rule, see cases cited in this and following sections. "W. Va. Code, 1013, c. 106, § 1; Va. Code, 1004, §20.50. isAltmeycr v. Caulfield, 37 W. Va. 847, 17 S. E. 400; U. S. Baking Co. V. Baebman, 38 W. Va. 84, 18 S. E. 382. See post, § 796, and cases cited. loAltnieyer v. Caulfield, 37 W. Va. 847, 17 S. E. 409. 17 United States Baking Co. v. Bachman, 38 W. Va. 84, 18 S. E. 382; Cosner V. Smith, 36 W. Va. 788, 15 S. E 077; Sommers v. Al- len, 44 W. Va. 120, 28 S. E. 787; Millar v. Whittington, 17 W. Va. 142, 87 S. E. 164; Northern Neck State Bank v. Gilrebt Packing Co., 114 Va. 658, 77 S. E. 451 ; Hatfield V. Blount, 103 S. E. 203 (W. Va. 1920). 18 Hogg, Eq. Princ, § 39, p. 66, citing Crim v. Harman, 38 W. Va. 506, 18 S. E. 753. See post, § 798. § 796 Equity Procedure 1026 no jurat, it is not sufficient." It is not necessary, however, that the venue of the affidavit should appear upon its face, if it appear that it was made before an officer of a certain county.^" In Virginia, it is held that no formal affidavit is required, where the bill is sworn to and filed before the attachment is issued and contains the necessary allegations for the issuance of an attachment, and the affidavit adopts the bill as a part there- of.^i It is further held in Virginia that if, by necessary impli- cation, the affidavit contains the statements required by the statute, this is sufficient.^- Thus, where the affidavit "was that the defendant was indebted to the plaintiff 'in a sum exceeding two thousand dollars,' it was held to specify with certainty that at least that sum was due. Where the statute uses the words 'is a non-resident' an affidavit that 'he is not now an inhabitant' was held to be a compliance, but 'that he is not at this time within the state,' was held insufficient."^' § 796. What a sufficient affidavit for an attachment. In West Virginia, the affidavit must state the nature of the plaintiff's claim, ^^ the amount, at the least, which the affiant 1" Coaner v. Smith, .S6 W. Va. averment "that his claim is found- 788, 15 S. E. 077. ed upon a written contract for the 20 Kesler v. Lapham, 46 W. Va. delivery of certain timber by the 293, 33 S. E. 289. plaintiff to the defendant," without 21 Sims V. Tyrer, 96 Va. 5, 26 S. stating in what respect the defend- E. 508. ant failed to comply with such con- 22 Clinch River Mining Co. v. tract, is insufficient. Cosner v. Harrison, 91 Va. 128, 21 S. E. 660. Smith, 36 W. Va. 7SS, 1.5 S. E. 977. 23 1 Bart., Ch. Pr. (2d Ed.), 627. An affidavit in an attachment s* "An affidavit for an attachment ease stating that the claim "is for not stating the nature of the plain- transcript of foreign judgment," tiff's demand, so as to show a title sufficiently sets forth tlie nature of or right in the plaintiff to such the claim. Todd v. Gates, 20 W. demand, is bad, and should be Va. 464. However, in tlie light of quashed on motion." Sommers v. more recent decisions, it is doubt- Allen, 44 W. A'a. 120, 28 S. E. 787, ful whether such a statement at- 788. tains a sufficient degree of particu- Under W. Va. Code, c. 106, § 1, larity. providing that the affidavit must In Kesler v. Lapham, 46 W. Va. state the nature of the claim, an 293, 33 S. E. 289, in discussing the 1027 Attachments §796 believes the plaintiff is justly entitled to recover in the action sufficiency of the affidavit, tlie court says: "Another objection made to the affidavit Is that it does not state sufficiently tlie nature of the claim. Tt only says that it 'is for professional services rendered by the plaintiff.' What professional services? As a, lawyer, doctor of medicine, or dentist, it does not say. It does not say to whom ren- dered, except by mere implication. The nature of the claim should be stated with some legal definiteness. Sommcrs v. Allen, 44 W. Va. 120 (28 S. E. 787); Crim v^ Uarmon, 38 W. Va. 596 (18 S. E. 753) ; Gos- ner's Admr. v. Smith, 36 W. Va. 788 (15 S. E. 977); 1 Shinn, At- tach., section 132— the latter au- thority saying that 'an affidavit is sufficient if it allege all the mate- rial issuable facts necessary to en- title the plaintiff to recover.' This affidavit does not do so; and there are two defendants, and the affi- davit does not say to which one the professional services were rendered; but it says that the demand there- for is 'against the defendant,' and does not say 'defendants'; and the question arises which one is indebt- ed for the services; but the affidavit does not answer, and surely, in stating the nature of the claim, the particular one of two parties owing the demand ought to be stated. The affidavit, therefore, and the attachment should have been quashed." In a recent case, Deming Nat. Bank v. Baker, 83 W. Va. 429, 98 S. E. 438, Miller, P., says: "An attachment proceeding being a harsh remedy, strict construction has always been applied, and our decisions hold that the same strict- ness required in the declaration or bill should be demanded of the plaintiff in stating the nature of his claim in his affidavit for attach- ment. Bank of Huntington v. Hy- sell, 22 W. Va. 142, among the first of our cases, holds that in an action on a negotiable note against an en- dorser the declaration must allege that the note was duly presented at the place where it was payable, and that it was not paid, and that thereupon the said note was duly protested for nonpayment, of all of which the endorser had prompt notice. Approved forms of plead- ing require this strictness. Hogg's Pleading and Forms, No. 45. In Sommers v. Allen, 44 W. Va. , 120, at page 123, 28 S. E. 787, a suit in equity with attachment, Judge Brannon strongly implies that the affidavit ought to allege all the ma- terial issuable facts necessary to entitle plaintiff to recover. In Home Distilling Co. v. Himrael, 74 W. Va. 756, 82 S. E. 1094, we said that it is essential that the nature of plaintiff's claim be so described in the attachment that the court can see therefrom that plaintiff has a valid cause of action against the defendant. See also, Cosner's Admr. V. Smith, 36 W. Va. 788, 15 S. E. 977; Reed v. McCloud, 38 W. Va. 701, 18 S. E. 924; Crim v. Harmon, 38 W. Va. 596, 18 S. E. 753; Thompson v. Curry et al., 79 W. Va. 771, 91 S. E. 801; Peabody Ins. Co. V. Wilson, 29 W. Va. 528, 2 S. E. 888; Delaplain v. Armstrong, 21 W. Va. 211. If we adhere to these rules and principles of strict con- struction, which are not out of har- §796 Equity Procedure 1028 or suit,26 and also his belief that some of the grounds^* speci- fied in the statute exists for the attachment; and, unless the mony with the decisions of other states, we think we are obliged to hold the affidavit in the case at bar fatally defective." Also, see Hale V. Grow, 106 S. E. 631 (W. Va. 1921). Substantial inconsistency between the claim stated in the affidavit and that alleged in the bill or decla- ration constitutes a fatal variance. Simmons v. Simmons, 56 W. Va. 65, 48 S. E. 833, 107 Am. St. Eep. 890; Duty V. Sprinkle, 64 W. Va. 39, 60 S. E. 882. A statement that the claim is "for the recovery of money upon contract" is not sufficient within itself, but is sufficient when coupled with a particular specification of the items of account sued on. Flan- nigan v. Monongahela Tie & Lum- ber Co., 77 W. Va. 158, 87 S. E. 165. A mere conclusion, founded on facts known to the affiant, but not set forth in the affidavit, is not suf- ficient. Millar v. Wliittington, 77 W. Va. 142, 87 S. E. 164. For additional illustrations see. Bank of Union v. Loeb, 71 W. Va. 494, 76 S. E. 883; Eplin v. Bless- ing, 73 W. Va. 283, 80 S. E. 458; Home Distilling Co. v. Ilimmel, 74 W. Va. 756, 82 S. E. 1094. 25 "It is not a sufficient ground to quash an attachment that it does not technically use the words 'in the suit,' as that sufficiently ap- pears from the filing of the affidavit in the suit, and stating therein that the affiant is justly entitled to re- cover the sum of four hundred dol- lars by virtue of a negotiable note describing it, and that the same is due and owing and wholly unpaid to affiant, and that affiant has in- stituted a suit in chancery for the purpose, and is about to issue an attachment in such suit; it further appearing that the attachment was issued in said chancery suit, and the debt was one that could be properly recovered therein." Alt- meyer v. Caul field, 37 W. Va. 847, 17 S. E. 409. See Deniing Nat. Bank v. Baker, 83 W. Va. 429, 98 S. E. 438. "An affidavit for an attachment under section 1 of cliapter 106 of the Code, which omits the phrase 'at the least,' is not in substantial compliance with the terms of the statute, the phrase being neither superfiuous nor insignificant. See Altemrycr v. Caulfirld, 37 W. Va. 487 (17 S. E. Rep. 409)." Dulin v. llcCaw, 39 W. Va. 721, 20 S. E. 681. The contrary is held in Vir- ginia. Water Front Coal Co. v. Smithfield Marl, Clay and Trans- pcji'tation Co., 114 Va. 482, 76 S. E. 937. "An affidavit for an attachment omitting the word 'justly' from the clause 'justly entitled to recover' is bad, and should be quashed on mo- tion. * * * "If an attachment affidavit says that affiant believes that the plain- tiff' 'should recover' instead of 'en- titled' to recover, it is bad, and ouglit to be quashed on motion." Sonimers v. Allen, 44 W. Va. 120, 28 S. E. 787. 20 "I'sually the plaintiff may al- lege as many distinct and separate grounds of attachment, within the terms of the statute, as he ma.y deem expedient. But in doing so care must be taken that there be 1029 Attachments §796 attachment is sued out on the ground of the nonresidence of the defendant, ^^ -the affiant must state in his affidavit the ma- no inconaiatency between any two of the grounds stated, for that would introduce an element of un- certainty and indefinitoness in the aflRdavit wliicli might vitiate the attacliment. An affidavit alleging one or other of two or more distinct grounds would be bad, because of the impossibility of determining which la relied on to suatain the attachment. Tlie acveral distinct statutory grounds, or facts of dif- ferent natures, if two or more of such grounds or facts are stated, must be stated in the affidavit con- junctively and not disjunctively. But if the affidavit states two or more phases of the same fact, or even different facts of the same nature, which constitute togetlier a single statutory ground for an at- tachment, and do not unite two or more of such grounds, they may be stated disjunctively and the affida- vit will not be bad for that reason. Thus when the language of the stat- ute is, 'so absconds or conceals him- self that the ordinary process of law can not be served on him,' ami the affidavit used the precise lan- guage of the statute, the court held it was sufficient. Or, when the affi- davit, using the words of the stat- ute, alleged that the defendant 'has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal his prop<'rty, with intent to defraud his creditors,' the court held it was sufficient. So where the affidavit states that the defendant 'has property or rights in action which he conceals,' the affidavit is not bad." Hogg, Eq. Princ, § 39, pp. 67, 68, citing Sandheger v. Hosey, 26 W. Va. 223. In further support of the propo- sition that the grounds can not be stated in the disjunctive, or alter- native, see Roberts v. Burns, 48 W. Va. n2, 3.5 S. E. 922, 86 Am. St. Rep. 17; Eplin v. Blessing, 73 W. Va. 283, 80 S. E. 458. "Where an attachment is sued out and reliance is had upon two or more distinct grounds for support thereof, they should be joined in the conjunctive; but, where only one ground of attachment is relied upon and two or more phases of the same fact which constitutes such ground are stated, the joining of such diffeyent phases in the dis- junctive will not invalidate the at- tachment affidavit." Piedmont Gro- cery Co. V. Hawkins, 83 W. Va. 180, 98 S. E. 152; Hatfield v. Blount, 103 S. E. 203 (W. Va. 1920). 27 "While it is not necessary in foreign attachment that the affida- vit should show how the defendant is a nonresident, yet where it is sought to hold a corporation liable to attachment as if a nonresident defendant, because of its failure to comply with the requirements of section 37 of chapter 54 of the Code, in not appointing some per- son by power of attorney duly exe- cuted by it to accept service of process in suits against such cor- poration, the affidavit must show that the requirements of said sec- tion have not been complied with or the order of attachment can not be issued." Hogg, Eq. Princ, § 39, p. 66, citing Pendleton v. Smith, 1 W. Va. 16; United States Baking Co. V. Bachman, 38 W. Va. 84, 18 S. E. 382. §796 Equity Procedure 1030 terial facts relied on by him to show the existence of the grounds on which the application for the attachment is based. -^ These material facts must be positively alleged, and not upon mere information.^" They must be certain and definite, in a legal point of view, so as to inform those entitled to defend the attachment what particular facts they must repel, ^° and they must be such as to produce in the mind of the court the con- as Hudkins v. Haskins, 22 W. Va. 645; Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977; Crim v. Harmon, .38 W. Va 596; Roberts v. Burns, 48 W. Va. 92, 35 S. E. 922, 86 Am. St. Rep. 17; Elkins Nat. Bank v. Simmons, 57 W. Va. 1, 49 S. E. 893; Fayette Liquor Co. v. Jones. 75 W. Va. 119, 83 S. E. 726; Hat- field V. Blount, 103 S. E. 203 (W. Va. 1920). "Where a party who is engaged in the mercantile business owns several lots of land, and executes his negotiable note, payable in thirty days, for tliree hundred and sixty dollars, to a party to whom he is indebted before said note falls due; sells all of his stock in trade to third party, and executes two deeds of trust for a considerable amount upon his real estate, when he was in fact insolvent; makes conflicting statements as to the terms of said sale, saying to one that he owed his vendee four hun- dred dollars, to be credited on the purchase monej', and the residue paid to him in fifty-dollar monthly instalments; to another that his vendee had paid him part cash, and the residue was to be paid in in- stalments; while to another he said the purchase money was to be paid in fifty-dollar monthly instal- ments, not claiming that his ven- dees owed him anything; and, when asked to give his order on the ven- dees in payment of said note, de- clined, saying he would pay it in his own way and time — these facts strongly indicate that said mer- chant had disposed of his property with intent to defraud his credit- ors, and, if set forth in an affidavit filed by the party to whom said note was made payable, are suf- ficient to authorize an order of at- tachment." Lewis V. Bragg, 47 W. Va. 707, 35 S. E. 043. "In an affidavit for an attach- ment, the material facts relied on to support the grounds of attach- ment must he of positive import hearing out those grounds, and be of sufficient certainty and particu- larity to enable the party pro- ceeded against properly to defend." Fayette Liquor Co. v. Jones, 75 W. Va. 119, 83 S. E. 720. 28 Hudkins v. Haskins, 22 W. Va. 045 ; Fayette Liquor Co. ^ . .Tones, 75 W. Va. 110, 83 S. E. 72fi. "While the grounds of the at- tachment may be stated upon the alliant's belief, yet the law is other- wise as to the essential facts which gave rise to the grounds relied on by the plaintilf for his attachment." Hogg. Eq. Princ, S 30, p. 08. See Fayette Liquor Co. v. Jones, supra. °" Goodman \ . Henry, 42 \V. ^'a. .520, 20 S. E. .528, 35 L. R. A. 847 -. Fayette Liquor Co. v. Jones, 75 W. Va. 119, 83 S. E. 726, quoted in note 28, supra. 1031 Attachments §796 elusion that the ground for the attachment exists.'^ The opin- ion in Goodman v. Henry '^ very clearly shows that in order to make an affidavit sufficient as to the facts set out therein, upon which to base the ground for an attachment, it should aver the time, place, and all the circumstances and surround- ing facts relied upon to uphold the ground of the attachment.^' In Virginia,^"' the affidavit must state that the plaintiff's claim is believed to be just, and, if the action be to recover spe- cific personal property, the nature, and, according to affiant's belief, the value of such property and the probable amount of damages the plaintiff will recover for the detention thereof. If the action be to recover a debt or damages for the breach of a contract, express or implied, or damages for a wrong, it must also state a certain sum^^ which (at least) the affiant believes the plaintiff is entitled to or ought to recover, and also the existence, to the best of affiant's belief, of one or more of the statutory grounds for attachment.'" In a suit in equity, if the 31 Hogg, Eq. Princ, § 39, p. GO, citing Sandlieger v. Ilosey, 26 W. Va. 221; Delaplain v. Armstrong, 21 W. Va. 211. 32 42 W. Va. 520, 20 S. E. 528, 35 L. E. A. 847. 33 "This requirement is intended to protect tlie alleged debtor against an abuse of the attachment law. The facts stated must be capable of denial and disproof, and they must of themselves show an improper, illegal or fraudulent act; and they must exclude every reasonable con- clusion that the act was proper or innocent. If they leave it doubtful whether the act alleged was fraudu- lent or innocent, the affidavit will be insufficient. The mode and man- ner of the act and the attendant facts must be stated, in order that the court may determine the pur- pose and character of the act and be able to decide for itself upon the propriety or impropriety of the act and to say whetlier it was fraudu- lent or innocent." Hogg, Eq. Princ., § 30, p. 67, using almost the literal language of Snyder, J., in Sand- lieger V. Hosey, 26 W. Va. 221, and citing additional cases. 3< Va. Code, 1904, §2959. •in McC'luny v. Jackson, 6 Gratt. (Va.) 96. 30 Omission of the words "at least" is not fatal to the affidavit. "The phrase quoted does not qualify the amount claimed, but serves merely to emphasize the mode of stating the amount." Water Front Coal Co. V. Smithfleld Marl, Clay and Transportation Co., 114 Va. 482, 76 S. E. 937. "When separate and distinct grounds of attachment are stated and are relied on, they must, be stated conjunctively. They can not he stated in the alternative. An § 797 Equity Procedure 1032 claim be to a debt not payable, the affidavit must also state the time when it will be payable." § 797. Supplemental affidavit. I In West Virginia, the statute allows a supplemental affidavit to be filed in the cause, upon an objection made to the original, within such time, not exceeding ten days, as may be prescribed by the court, in which may be stated any other facts that may have come to the affiant's knowledge since the filing of the original affidavit, which are relied upon to show the existence of the grounds of the attachment, and such supplemental affi- davit shall be treated as a portion of the original.'* This stat- ute is remedial, and should be liberally construed, and applied with the same liberality as the law of amendment of plead- ings.^' In accordance with this principle, a supplemental affidavit filed in support of the grounds of an attachment need not expressly state that the additional facts came to affiant's knowledge since the filing of the original affidavit.'"' The sup- plemental affidavit may be filed within ten days after the ruling of the court is made adjudging the original insufficient.'*^ The affidavit wliicli states that either River Mineral Co. v. Harrison, 91 one or the other of tjiree separate Va. 122, 21 S. E. 660. and distinct grounds of attachment s^Va. Code, 1904, §2964. exists does not state the existence of ss w. Va. Code, 1913, c. 106, § 1. any one of them, and hence is not a S9 Goodman v. Henry, 42 W. Va. sufficient basis for an attachment." 526, 26 S. E. 528, 35 L. R. A. 847; Northern Neck State Bank v. Gil- Crim .v. Harmon, 38 W. Va. 604, rebt Packing Co., 114 Va. 658, 77 18 S. E. 753. S. E. 451. 40 Miller v. Zeigler, 44 W. Va. A statement in an affidavit for 484, 29 S. E. 981, 67 Am. St. Rep. attachment that the claim is just, 777. But see Sommers v. Allen, 44 and tliat defendant is converting W. Va. 120, 28 S. E. 787, holding property into money with intent to that the supplemental affidavit defraud, is a sufficient compliance must show that the supplemental with the Code, 1887, § 2959, requir- facts existed at the time of making ing such an affidavit to state tliat the first affidavit, the claim is believed to be just, and ^i Goodman v. Henry, 42 W. Va. that, to the best of alfiant's belief, 526, 26 S. E. 528. defendant is converting the prop- But an appellate court, in the erty with intent to defraud. Clinch absence of a statute so providing. 1033 Attachments § 798 supplemental affidavit relates back to, and takes effect from, the time of the filing of the original.''^ § 798. Amendments as to clerical errors and omissions in the affidavit. As we have already seen, an affidavit can not be amended ; *' which must be understood as meaning in any substantial matter relating to the ground of the attachment, or statement which the law requires it shall contain.^'' But as to mere clerical errors or defects, as already stated,"*^ the rule is otherwise, and amendments are liberally allowed. Thus, a false date inserted in the affidavit by the clerk may be corrected by an amend- ment." So the accidental omission of the officer who adminis- tered the oath to sign the affidavit will not vitiate it, and such omission may be supplied by amendment.''^ So, the affidavit may be amended, if made before a notary of another state, by appending thereto a certificate from a clerk or other officer of a court of record of such state, under official seal, verifying the genuineness of the notary's signature and his authority to ad- minister an oath.*^ And a mistake in the name of the plaintiff can not remand a case for the pur- *= Ante, § 795. pose of amending the affidavit in 4o Anderson v. Kanawha Coal Co., the lower court. Taylor v. Suther- 12 W. Va. .526; State v. Moran, 4.3 lin-Meade Tobacco Co., 107 Va. 787, N. J. L. 49. 60 S. E. 132, 14 L. E. A. (N.S. ) Likewise, a mere clerical error 1133. But see Elkins Xat. Bank v. made by the clerk in designatinji Simmons, 57 W. Va. 1, 49 S. E. 893. the court may be corrected. Ber- *= Goodman v. Henry, 42 W. Va. nard v. MeClanahan, 115 Va. 453, 526, 26 S. E. 528, in which the 79 S. E. 1059. court is divided as to the extent to ^t Farmers' Bank v. Gettinger, 4 which the supplemental affidavit af- W. Va. 305 ; Boisseau v. Kahn, 62 feets the intervening rights of third Miss. 757. parties. "» Bohn v. Zeigler, 44 W. Va. 402, 43 Ante, § 795. 29 S. E. 983. See Lawton v. Kiel, "Goodman v. Henry, 42 W. Va. 51 Barb. (N. Y.) 30. 526, 26 S. E. 528, in the opinion of The statute has since been Brannon, J.; Tanner & D. Engine changed with reference to authen- Co. V. Hall, 22 Fla. 391; Zeregal v. tication of foreign affidavits. W. Benoist, 33 How. Pr. 129, 30 N. Y. Va. Code, 1918, c. 130, §31; Acts Super. Ct. 199. 1917, e. 48. § 800 Equity Procedure 1034 occurring in the affidavit, not 'being a jurisdictional matter, may be corrected by amendment." § 799. Before whom the affidavit for an attachment may be made. The affidavit for an attachment in the Virgii^ias may be made before any officer in or out of the state authorized to administer an oath.^" In Virginia, unless the affidavit be made before ft notary public, when made in another state or country, there must be annexed to it a certificate of the clerk or other officer of a court of record of such state or country, under an official seal, verifying the genuineness of the signature of the officer before whom the same has been made, and his authority to administer an oath; but if made before a notary public, his signature and official seal are a sufficient authentication. Un- der the West Virginia statute, as amended by Acts of 1917, in all instances the signature and seal of the officer before whom the affidavit is made constitute a sufficient authentication. But if such officer have no seal, then the genuineness of his signa- ture and his authority to administer oaths must be authenti- cated by some other officer of the same state or country under his official seal.^^ The affidavit may be made before an officer of a county other than that in which it is to be used.^^ § 800. By whom the affidavit may be made. The statute of West Virginia provides that the affidavit for an attachment may be made by the plaintiff or some credible person ; ^' and that of Virginia, by the plaintiff, his agent or 4s>Rutlie V. Green Bay & M. E. ^2 Kesler v. Lapham, 46 W. Va. Co., 37 Wis. 344; Shaw v. Brown, 29,3, 33 S. E. 289. 42 Miss. 309. "The certificate of the officer be- so Kesler v. Lapham, 46 W. Va. fore whom the affiant appears is 293, 33 S. E. 289; Va. Code, 1904, conclusive evidence that the state- s' 173, 174. ments made were sworn to." 1 SI Va. Code, 1904, § 174; W. Va. Bart., Ch. Pr. (2nd Ed.), 626, citing Code, 1918, 0, 130, §31; Acts 1917, Daniell on Attachments, §§ 13, 17, c. 48. 18. 53 W. Va. Code, 1913, c. 106, § 1. 10-35 Attachments § 801 attorney.^'' Though the law says that the affidavit may be made by some credible person, it need not appear in the affidavit that the affiant is a credible person. ^^ The practical operation and reasonable construction of this statute in effect authorize any one to make the affidavit who is cognizant of the matters that the affidavit must set forth. ^^ And while a supplemental affi- davit should be made by him who made the original, it may be made by any other credible person.^' But in Virginia, the affidavit must show that it is made either by the party himself, or by his agent or attorney.^^ §801. Certain omissions deemed fatal to the affidavit. Any omission or defect of substance relating to jurisdictional matters or statements prescribed by statute, can not be cured by amendment.^' Thus, the omission of the word "justly" in the affidavit, and the phrase "at the least," the use of which is prescribed by the statute in the statement of the amount which the affiant believes the plaintiff entitled to recover, can not be supplied by amendment.'" So, if the affidavit says that the affiant believes that the plaintiff "should recover," instead of s*Va. Code, 1904, §2959. ■■''9 Sloan v. Hudson, 119 -^'a. 27, 55RuhI V. Rodgers, 29 W. Va. 24 So. 458; Blair v. Winston, 84 779, 2 S. E. 798. Md. 356, 35 Atl. 1101; Addison v. 50 Lewis V. Bragg, 47 W. Va. 707, Sujette, 50 S. Car. 192, 27 S. E. 35 S. E. 943; Ruhl v. Rodgers, 29 631; Bohn v. Zigler, 44 W. Va. 402, W. Va. 779, 2 S. E. 798. 29 S. E. 983. 57 Lewis V. Bragg, 47 W. Va. 707, eo Crim v. Harmon, 38 W. Va. 35 S. E. 943. 596, 18 S. E. 753; Sommers v. Al- 58 An affidavit purporting to have len, 44 W. Va. 120, 28 S. E. 787; been made by the "secretary and Reed v. MeCloud, 38 W. Va. 701, treasurer" of a corporation does not 18 S. E. 924; Neill v. Rogers, 41 sufficiently appear to have been W. Va. 37, 23 S. E. 702; Dulin v. made by an agent of the corpora- McCaw, 39 W. Va. 721, 20 S. E. tion. Taylor v. SutherliurMeade 681 ; ante, § 796. Tobacco Co., 107 Va. 787, 60 S. E. But in Virginia, omission of the 132, 14 L. R. A. (N.S.) 1135. Like- words "at least" is not fatal. Wa- wise, as to an affidavit made by a ter Front Coal Co. v. Smithfield "vice-president" or "director." Dam- Marl, Clay and Transportation Co., ron and Kelly v. Citizens' Nat. 114 Va. 482, 76 S. E. 937. See Bank, 112 Va. 544, 72 S. E. 153. ante, § 796. § 803 Equity Procedure i086 "is entitled" to recover, it is bad and ought to be quashed on motion." If no oath was administered to the party signing the affidavit, it can not be amended by administering the same to him after the attachment has issued."^ If the affidavit is deemed incurably defective, it is advisable to prepare a new and suf- ficient one, which may be done and the lien of the attachment thus preserved against all persons from the filing of the second affidavit ; ^' and this may be done without the issuance or levy of another order of attachment.** § 802. When the aflBdavit for an attachment may be made. In the Virginias, the affidavit for the procurement of an or- der of attachment may be made either before or after the suit has been brought.*^ As the ground for an attachment should exist when it is sued out, the time between the making of the affidavit and the issuance of the attachment should not be un- reasonable. The two acts need not be simultaneous, but the attachment should issue within a reasonable time after the making of the affidavit; and what is a reasonable time is to be determined by the situation of the parties.'^* § 803. The endorsement to be made upon the summons. In Virginia, upon making the affidavit, "the plaintiff may require the clerk to endorse on a summons an order to the officer to whom it is directed to attach the specific property [if eiSommers v. Allen, 44 W. Va. Stephens, 11 Gratt. (Va.) 610; Ci- 120, 28 S. E. 787: ante, §700. rode v. Buelianan, 22 Gratt. (Va.) 02 Carlisle v. Gunn, 68 Miss. 243, 20.5, 216. An attaeliinent may be 8 So. 743; McReynolds v. Neal, 8 issued at any time after suit has Humph. (Tenn.) 12. heen commenced, if it be done while 03 Chapman v. Railroad Co., 26 the cause is still pending. PuUiam W. Va. 2fln; Northern Nock State v. Aler, 15 Gratt. (Va.) 54; Steele Bank v. Gilrebt Packing Co., 114 v. Harkness, 9' W. Va. 20; Chap- Va. 6.'>8, 77 S. E. 451. man v. ]\faitland, 22 W. Va. 343; 04 Chapman v. Railroad Co., 26 Kaylor v. Davy Pocahontas Coal W, Va. 200. Co.. 118 Va. 360, 87 S, E. .5.51. or. W. Va. Code, 1013, c. 106, §1; oe Kesler v. Lapham, 46 W. Va. Va. Code, 1904, §2059; Hall v. 203, 33 S. E. 289. Hall, 12 \V. Va. 1; O'Brien v. 1037 ■ Attachments § 804 any be mentioned in the affidavit], and the debts owing by other defendants [if any] to the defendant against whom the claim is, and also any other estate, of that defendant, whether in his own hands or in the hands of other defendants." " The evident purpose of this endorsement, as the attachment law in Virginia now is, must be to have the officer attach the specific property mentioned in the affidavit, and probably to reach debts owing by some one or more of the eodefendants to the defend- ants against whom the claim is asserted, or specific property belonging to the latter, whether in his own hands or in the hands of his eodefendants.^* § 804. The process in or order of attachment. The attachment in West Virginia is in the form of an order directed to a sheriff or constable of any county in the state, requiring the sheriff of the county or any constable therein in the name of the state to attach sufficient of the estate of the defendant to pay the debt of the plaintiff specified in the affi- davit, and the costs of the suit ; *^ and if bond has been given as prescribed by law, the officer is also required to take the attached property into his possession.'" In Virginia, "the proc- ess in an attachment in chancery consists of an endorsement by the clerk on the ordinary summons, of an order to the officer to whom it is directed, to attach the specific property [if any is mentioned in the affidavit], and the debts due, or to become due, by other defendants [if any] to the defendant against whom the claim is, and also any other estate of that defendant, whether in his own hands or in the hands of other defend- er Va. Code, 1904, § 2064. because it does not designate any «8 The practical effect of tlie en- person in wliose possession property dorsement is to give notice to the or effects of an absent debtor may codefendant not to part with the be found. PuUiam v. Aler, 1.5 Gratt. property in his hands or pay the (Va. ) 54. debt to the real defendant, as plain- There is no such statute in West tiff's claim, aided by attachment, Virginia as the one given above, constitutes a lien upon it. See oo W. Va. Code, 1913, c. 106, Moore v. Holt, 10 Gratt. (Va.) 284. §§ 1, 2. An attachment is not defective J" Idem, § 2. § 805 Equity Procedure 1038 ants."" In West Virginia, it may be returnable to the next term of the court, or to some specified rule day ; " and in Vir- ginia, when issued in a pending suit, to a term of the court in which the same is pending, or to some rule day thereof.''^ Sev- eral attachments may issue in the same suit upon the same affidavit, and be delivered to different officers at the same time, or there may be in the same suit more than one affidavit and attachment, based on different grounds, the lien of the subse- quent attachment not relating back, however, to the first.''* The order of attachment must conform to the amount of the plain- tiff's claim mentioned in the affidavit, else the attachment will be quashed, as this is a matter that can not be relieved against by amendment.'^ But an order of attachment not signed by the clerk may be amended in that respect.''^ § 805. The attachment bond. Bond is required only when the officer is to take possession of the property attached,'' and until a proper bond has been '1 1 Bart., Ch. Pr. (2d Ed.), 630, on tlie property levied upon under citing Va. Code, § 2964. it, although the first attachment T2W. Va. Code, 1013, c. 106, §1. may be quashed for irregularity. See Coda v. Thompson, 39 W. Va. Ballard v. Great Western M. and 67, 19 S. E. 548. M. Co., supra. " Va. Code, 1904, § 296.5. See Miller v. White, 46 W. Va. Under the law before it was 67, 33 S. E. 332. amended as it appears in Va. Code, ^s Ballard v. Great Western M. 1887, § 2965, the attachment had to and JI. Co., 39 W. Va. 394, 19 S. be made returnable to a term of E. 510. court, and if not it was void. Grin- 'o Miller v. Zeigler, 44 W. Va. berg V. Singerman, 90 Va. 645, 19 484, 29 S. E. 981. S. E. 161. "An order of attachment not 7*W. Va. Code, 1913, c. 106, §2; signed when issued, but later, and Vii. Code, 1904, § 2966; Ballard t. before a, motion to quash it, signed Great Western Min. and M. Co., 39 by the clerk, is good, against such W. Va. 394, 19 S. E. 510. motion to quash, as tlie court ought More than one attachment may to allow such amendment.'' Idem. be issued upon the same affidavit '■' W. Va. Code, 1913, c. 106, §6; and bond, and, if tlie second order Va. Code. 1904, §2968; Kenefick v. of attachment is regular in all ro- Caulfield, 88 Va. 122. 13 S. E. 348; specta and properly levied, it will Cosner v. Smith, 36 W. Va. 788, create a valid and binding lien up- 15 S. E. 977. 1039 Attachments §805 given, at the time of suing out the attachment or afterwards, the order of attachment should not require him to take into his possession the property upon which the attachment is levied.'* It is very important to observe and strictly adhere to the pro- visions of the law with reference to the bond to be given by the plaintiff,'' as the bond provided for must be executed with good security, approved by the clerk, in a penalty at least double the amount of the claim sworn to, with condition to pay all costs and damages which may be awarded against him *" or sustained by any ofBeer or other person by reason of suing out the attach- ment or levying the same ; ^^ * to pay to any claimant of any property seized or sold under or by virtue of said attachment all damages which he may recover in consequence of such seizure or sale ; *^ and also to warrant and defend to any pur- chaser of the property such estate or interest therein as is 78 Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977. '» Idem. 8" In Virginia, on an attachment bond conditioned that the obligors pay all the costs and damages "awarded" against the plaintiff in the attachment, the attachment de- fendant can not sue the sureties un- til costs and damages have been awarded against the plaintiff in the attachment. There can be no breach of the condition of the bond until the sureties know what they are to pay. Offterdinger v. Ford, 92 Va. 649, 24 S. E. 246. 81 That part of the condition which comes after the star ( * ) does not appear in the statute of Vir- ginia. The provision of the statute as the law formerly was, to pay all damages "'sustained by any person by reason of the suing out said or- der of attachment," did not inure to the benefit of the sherjff, who levied the attachment and took into his possession, and took care of, the attached property. Mitchell V. Chancellor, 14 W. Va. 22. The law is now otherwise in West Vir- ginia. See W. Va. Code, 1913, e. 106, §6. "When the attachment is issued against the effects of the defendant generally, and is levied upon the property of a third person, such third person has no remedy upon the attachment bond. Davis v. The Commonwealth, 13 Gratt. (Va.) 139. 82 "A claimant of property seized and sold under an attachment may recover damages in an action upon the attaehmpnt bond without hav- ing in the first instance recovered damages in an independent suit against the plaintiff in the attach- ment." Totten v. Henry, 46 W. Va. 232, 33 S. E. 119; Dickinson v. Mc- Craw, 4 Rand. (Va.) 158. §806 Equity Procedure 1040 sold.*^ The law provides that the bond may be given by the party himself or any other person.** It is provided by statute in West Virginia that "the defendant may except to the said bond, or to the sufficiency of the security therein, and if the exceptions be sustained by the court, the attached property shall be returned to the defendant, unless the plaintiff give a proper bond, with sufficient security, to be approved by the court within such time as the said court shall direct." *^ § 806. The levy of the attachment and the return thereof. The levy of the attachment is of prime importance, as it is this which creates the lien,*^ and is essential to the jurisdiction 83 VV. Va. Code, ini3, c. 106, §6; Va. Code, in04, §2968; Cosnei- v. Smith, 36 W. Va. 788, 1.5 S. E. 977. ^* Jones V. Anderson, 7 Leigh (Va.) at p. 314; W. Va. Code, 1913, c. 106, §29; Va. Code, 1904, § 2990. "Where an attachment bond pur- ports to be signed by the plaintiff in tlie suit, by an attorney in fact, the court will not sustain a motion to quash tlie bond for this supposed defect. If the attorney in fact had no authority to sign the plaintiff's name, this can only be taken ad- vantage of by plea in abatement, if it can be taken advantage of at all." Tingle v. Brison, 14 W. Va. 295. S5W. Va. Code, 1913, c. 106, §6. In Virginia, when the bond is given, "the fact shall be endorsed on the attachment, or certified by the clerk or justice to the officer, who shall return the said certificate with the attachment: and the bond, when taken by a justice, shall be returned by him to, and filed in, the clerk's office of the court to which the attachment is return- able." Va. Code, 1904, §2968. In West Virginia, it is provided by statute that if the plaintiff has sued out the attachment without giving bond, and afterwards gives the same, "it shall be the duty of such clerk, whether the attachment has been levied or not, to certify the fact that such bond has been given to the officer who levied the same, or in whose hands it was to be levied, or if he be absent or out of office, to issue a new order of attachment and to place the same in the hands of some other proper oflicer; and it shall be the duty of any such officer to take the at- tached property into his possession and make return of such order in like manner as if said bond had been given before the issuing of the original attachment." W. Va. Code, 1913, c. lOG, §6. ""Williamson v. Bowie, 6 Munf. (Va.) 176; Poling v. Flanagan, 41 W. Va. 191, 23 S. E. 685; Bowlbv V. De Witt, 47 W. Va. 323, 34 S. E. 919. "An attachment is a lien on per- sonal estate from levy, though no bond be given to authorize the offi- cer to take possession, and one pur- 1041 Attachments %80& of a court of equity when this depends upon an attachment.'^ The lien arising by virtue of the levy can attach only upon a strict compliance with the requirements of the statute/^ and this should appear affirmatively from the officer's return.'^ To make a valid levy of an attachment upon chattels, the ofiScer need not physically seize or even touch them, but must have them in his view and power, and do some act indicative of an attempt to levy and of the act of levying, and, if the chattels are of a nature to admit of it, and the required bond has been given, he must take them into his custody and con- trol.'" In Virginia, the attachment is sufficiently levied, if sued chasing of the debtor with notice of the levy takes subject to it." Bowl- by V. De Witt, supra. 87 Robertson v. Hoge, 83 Va. 124, 1 S. E. 667; Culbertson v. Stevens, 82 Va. 406, 4 S. E. 607. 88 Robertson v. Hoge, 83 Va. 124, 1 S. E. 667. 89 Robertson v. Hoge, supra. sow. Va. Code, 1913, e. 106, §6; Poling V. Flanagan, 41 W. Va. 191, 23 S. E. 685, citing Hutchinson's W. Va. Treatise, 795; 4 Minor, Inst., 920; 2 Tuck., Bl. Com., 367; Bullitt V. VVinstons, 1 Munf. (Va.) 270; Dorrier v. Masters, 83 Va. 459, 2 S. E. 927. In the course of the opinion in Poling V. Flanagan, supra, Bran- non, J., says : "The officer, in at- taching personalty, must actually reduce it to possession, so far as, under the circumstances, can be done, though in doing so it is not necessary that any notoriety should be given to the act to make it effec- tual. What is an actual possession, sufficient to constitute an attach- ment levy, must depend on the na- ture and position of the property. In general it may be said that it should be such a custody as will enable the officer to retain and as.' sert his power and control over the property, so that it can not be properly withdrawn, or taken by another, without his knowing it. . Drake, Attach., § 256. Freeman on Execution (section 260) says: 'In all eases there must be something more than a pen and ink levy. It is not sufficient that the officer merely makes an inventory of the property, and indorses the levy upon the writ. He must go where the property is. He must have it within view. It must be where he can exercise con- trol over it. He must exercise, or assume to exercise, dominion, by virtue of his writ. He must do some act by reason of which he could be successfully prosecuted as a trespasser, if it were not for the protection of the writ. But, in or- der to make him responsible as a trespasser, it is not essential he should remove or touch the prop- erty. It is enough that having the property within view, and wliere he can control it, he does profess to levy and assume control of the property by virtue of the execution, and with the avowed purpose of holding the property to answer the §806 Equity Procedure 1042 out against specified property, by serving the attachment on the defendant, or other person having possession of such prop- exigencies of the writ; for one who, to that extent, assumes dominion over property, is a trespasser, un- less justified by a valid writ. The levy ought to be notorious, not made in a manner to indicate an in- tention to beep it secret. In gen- eral, a secret levy must be held in- valid against third persons. Gen- erally, there must be a taking of the property into possession of the officer, and a divesting of the pos- session of the owner.' The same tests govern a levy of an attach- ment and a fieri facias. Tried by these tests, it is apparent there was no levy. Not nearly so much was done by the constable to effect a levy as in ^Yadsu:orth v. Miller, 4 Gratt. 00, and it was held no levy. This levy is pui'ely one of pen and ink, made four miles away from the property, when it was neither in the view nor power of the constable. He knew not where it was, or who had it, save from hearsay, nor whether dead or alive; and it could have been taken by any one without his knowledge, and he did nothing like a reduction of it to his pos- session. He did not see or touch it for days afterwards, but it remained in Junkins' possession ; and the property was of a nature and kind readily reducible to actual posses- sion." In Dorrier v. Masters, supra, a number of hoop-poles were piled up in several parcels, with no one to guard them. ,The sherilT, seeking to levy under an attachment, ap- proached to a point distant three or four hundred yards, from which he could see and could have taken the property into his possession. He gave no notice to any one of the levy, made no public proclamation thereof, as he saw no one to whom to make same, and did not take the hoop-poles into actual custody, be- cause no bond had been given. He made return on the writ. Held, un- der the attachment statutes of Vir- ginia (§7, c. 148, Code 1873), tak- ing into consideration the bulk and character of the property, a valid levy, as against a subsequent at- tachment levy in which the same property was again taken into ac- tual custody. In this same ease, Richardson, J., says: "And hence, in providing, as it did, in the first part of said sev- enth section, that the attachment may be levied on avy estate of the defendant, the legislature neces- sarily intended that an attachment, as to the visible, tangible effects of the defendant, in his actual or con- structive possession, may be levied as an execution of fieri facias is levied. This is not in terms ex- pressed in said section, but when we look to the obvious legislative policy in giving the remedy by at- tachment, it is found to exist by necessary implication as clear and strong as if it were so expressed in terms." "The oiBcer's return upon an at- tachment is competent and legal evidence to show proper service thereof and that the property at- tached is such as may be legally seized under the writ, and conclu- sive evidence that everything has been done necessary to constitute a valid levy." Pocahontas Wholesale Grocery Co. v. Gillespie, 63 W. Va. ,'>78, 60 S. E. 407. 1043 Attachments 806 erty; and in every other case, by serving the attachment upon the defendant or other person in possession of the property.-" In West Virginia, it is expressly provided by statute that, if the attachment be levied upon real estate, it shall be sufficiently served "by an endorsement thereon, or upon a paper annexed thereto, stating as near as may be, the quantity, or the sup- posed quantity, and the location thereof. "^^ And in Virginia, the levy as to real estate is made by such estate being men- tioned and described in an endorsement on the attachment, made by the officer to whom it is delivered for service, to the following effect: "Levied on the following real estate of the defendant, A. B. [or A. B. and C. D.], to-wit: [here describe the estate],^' this the day of , . B. F., sheriff [or other officer]," and bj^ service of the attachment on the 01 Va. Code, 1904, § 2967. ' 92 W. Va. Code, 1913, c. 106, § 5. "The return of a sheriff on an order of attachment, levied on real estate, showing the time of the levy and the quantity and location of the land and referring to the deed to the defendant tlierefor, as re- corded at a certain page of a cer- tain deed book in the office of tlie clerk of the county court, for a more particular description thereof, is sufficient." Duty v. Sprinkle, 64 W. Va. 39, 60 S. E. 882. 93 In Robertson v. Hoge, supra, Lacy, J., in speaking of tlie manner in which an attacliment should be levied in Virginia ujjon real estate, under Va. Code, § 2967, says : "The requisites of an attachment of real estate are determined by statute. It is not necessary, under our stat- ute, for the officer to go upon the land, nor in its vicinity, or to see it, or to do any other act than malce return upon the writ that he has attached it. In such an attachment no such precision is required as in an attachment of personalty when the property is divested. Any words which clearly indicate that the property has been attached would be held sufiBcient, the question being one of lien only, which is depend- ent upon the future decree of the court, and the return of the officer that he had attached the defend- ant's interest in certain land might be sufficient, such interest being subsequently defined; and it has been held that it is not necessary that the return should state that the property is the property of the defendant. But by our statute the sheriff is required to attach the real estate of the defendant, and it would seem to be necessary that he should make return accordingly that he attached the same as the property of the defendant." "The levy must contain such gen- eral description of the land, and with such substantial accuracy, as will connect it with the sale when made, so that purchasers may know the land, or interest therein, to be 807 •Equity Procedure 1044 person, if any, in possession of such estate.^^ When the officer has received the process of attachment, he should levy it with all reasonable diligence and dispatch.^^ The statute provides that "the officer serving the attachment shall make return of the time and manner of service on each person designated as being indebted to, or having in his possession, the property of any such defendant ; and shall also return a list and description of the property taken [if any], under such attachment, and likewise the date of the service, or execution thereof, on each person and parcel of property." ^^ § 807. On what estate an attachment may be levied. The attachment may be levied upon any estate, real or per- sonal, of the defendant named in the attachment, or so much thereof as may be sufficient to pay the amount for which it sold, and be able to form some esti- mate of its value; and, further, tbe levy should describe the land vifith such precision that it may be easily identified, when conveyed, by look- ing alone to the levy, without the aid of extrinsic evidence. Robert- son V. Boge, 83 Va. 124 (1 S. E. 667) ; Brmcii v. Dickson, 2 Humph. 395; Waters v. Duvall, 11 Gill & Johnson 37." Eaub v. Otterback, 92 Va. 517, 23 S. E. 883, in opinion of court at p. 884. 84 Va. Code, 1904, §2967. "A return on an attachment that it was levied on a tract of land of the defendant company containing about three hundred and sixty acres, located in the county of 51., in the magisterial district of P., of said county, 'being the same land conveyed to said company by L. C. Garnett, Esq., special commissioner of Mathews Coiinty Circuit Court, by deed vocoi-dod in deed-book No. 15, pp. 58, 59,' identifies the land with sufficient certainty, both for the purposes of sale and conveyance, without the aid of extrinsic evi- dence, and is a substantial, if not literal, compliance with section 2967 of the Code." Richardson v. J. S. Hoskins Lumber Co., Ill Va. 75.1, 69 S. E. 9,35. 9= Wheaton v. Neville, 19 Cal. 41 ; Kennedy v. Brent, 6 Craneh (U. S.) 187; Tucker v. Bradley, 15 Conn. 50. sa\y. Va. Code, 1913, c. 106, §7; Va. Code, 1004, § 2969. It need not be shown by a, sher- iff's return of a writ of attachment that service was obtained in his bailiwick, where he has no author- ity to execute it outside of his bailiwick, as the presumption is that he executed it legally. Guar- antee Co. V. First Nat. Bank, 95 Va. 480, 28 S. E. 909, 910. 1045 Attachments 807 issues ; ^^ except that in Virginia, when sued out specially against the specified property, it can be levied only on such specific property,'' and in West Virginia, on personal estate only when the attachment issues against a tenant removing his effects from leased premises.*' Under the laws of the Virginias the attachment may be levied upon the lands of a deceased debtor descended to his heirs who are nonresidents ; ^°'' the un- divided interest in land of a tenant in common ; ^"^ debts due to a nonresident debtor upon an open account in the hands of a resident garnishee ; ^"^ steamboats navigating the waters of the state ;^''^ the shares of a stockholder in a corporation,^"* and in Virginia, a debt due from a municipal corporation to one of its creditors. ^"^ But a mere possibility, such as the right "W. Va. Code, 1913, e. 106, §5; Va. Code, 1904, § 2907. The statute of Virginia declares that the attachment may be levied upon any estate of the defendant, whether the same be in the county or corporation in which the attach- ment issued, or in any other, either by the officer of the county or cor- poration wherein the attachment is- sued, or by the officer of the county or corporation where the estate is. Va. Code, 1904, § 2967. The attachment in West Virginia may be levied upon property any- where in the State, Pendleton v. Smith, 1 W. Va. 16; but if outside of the county in wliich it is issued, it should be directed to and levied by the proper officer in the county in which the levy is sought to be made. 08 Va. Code, 1904, §2967. sow. Va. Code, 1913, c. 106, §5. loo Carrington v. Didier, 8 Gratt. (Va.) 260. lOJ Curry v. Hale, 15 W. Va. 867. 102 Porter v. Young, 85 Va. 49, 6 S. E. 803; Pennsylvania Railroad Co. V. Rogers, 52 W. Va. 450, 44 S. E. 300, 62 L. R. A. 178; Baltimore & Ohio R. Co. V. Allen, 58 VV. Va. 388, 52 S. E. 465, 3 L. R. A. (N.S.) 608, 112 Am. St. Rep. 975. See post, § 830. 103 Commonwealth v. Fry, 4 W. Va. 721. "Where a bill of sale is executed from one party to another, for a steamboat navigating the Ohio river, and delivery of possession ac- companies tlie act, thereby render- ing the sale complete, there is no such riglit of ownersliip or title in the vendor as would authorize a creditor of the vendor to attach the boat under the 5th section of chap- ter 151 of the Code of Virginia, for money due on account of materials furnished in building and equipping said boat.'' Hobbs v. Intereliange, 1 W. Va. 57. in* Shenandoali Val. R. Co. v, Griffith, 76 Va. 913; C. & 0. R. Co. v: Paine, 29 Gratt. (Va.) 502; Lips- comb's Admr. v. Condon, 56 W. \'p. 416, 49 S. E. 392, 67 L. E. A. 670, 107 Am. St. Rep. 938. 105 Portsmouth Gas Co. v. San- ford, 97 Va. 124, S3 S. E. 516, 5 Va. §'807 Equity Procedure 1046 to a fee in real property in case of surviving another person, in the absence of a speeilic statute so providing, is not attach- able under a general statute authorizing the attachment of estate, or debts, as in Virginia and West Virginia.^"^ So, a chattel pawned or mortgaged is not attachable in an action against the pawnor or mortgagor.^"^ And property in custodia legis can not be attached, as money, credits and property held by executors, administrators, guardians, and like quasi officers Law Reg. 172. Contra, Welch Lum- ber Co. V. Carter Bros., 7S W. Va. 11, 88 S. E. 1034. Mr. M. P. Biirk, in a note to tliia case in 5 Va. Law Rog., at p. 176, says: "The liability of municipal corporations to be garnished or at- tached for a debt due a third per- son is fully discussed in mono- graphic notes to Divine v. Harvie, 18 Am. Dec. 204, and Leake v. !Lacey, 51 Am. St. Rep. 114, and it is there shown that the overwhelm- ing weight of authority is against such liability. The reason assigned is, that it is against public policy to permit the money of the people and the time of officials to be ex- pended in defending suits in which the municipality has no interest. This view has been taken in states whose attachment laws are almost identical with ours. See cases cited in 51 Am. St. Rep. on p. 117. "Notwithstanding these facts, however, the decision in the princi- pal case commends itself to our judgment as plainly right. Not be- cause the current of decisions is wrong, but because the public policy of this state is different from that of the states holding a different view. The statute cited in the opin- ion in the principal case allowing the wages and salaries of officials, clerks, and employes of municipal corporations to be garnished, plain- ly indicates that the Legislature regarded the payment of the debts of such clerks, officials, and em- ployes more worthy of consideration than the slight pecuniary loss and inconvenience to municipal corpo- rations in consequence of being gar- nished or attached. It plainly in- dicates the public policy of the state, and it can hardly be doubted that the Legislature lias the right, as well as the power, to establish the policy of the state in such mat- ters. The court, in the principal case, has simply followed the public policy of the state, just as in a majority of the other states, their courts followed their public policy. The policies being different, the de- cisions were of necessity different, and yet a like motive controlled the decision in each case." 100 Young V. Young, 80 Va. 675, 17 S. E. 470, 23 L. R. A. 642, and note, in which many authori- ties are cited. But in Virginia, by Acts of 1904, p. 62, the statute was amended so as to permit attachment of a con- tingent remainder when the attach- ment is against a nonresident or an absconding debtor. Va. Code, 1904, § 2967. loT Keill V. Rogers, 41 W. Va. 37. 23 S. E. 702. 1047 Attachments § 809 in their representative and administrative capacity.-"'* Nor can funds in the hands of a state officer, as a state treasurer for instance, be made the subject of levy by attachment.^"' § 808. Equity practice as to attachments. The procedure in equity in eases of attachment, whether tlie claim sued on be legal or equitable, is the same as in other suits in equity,-'-'" and the relief afforded in such cases is ac- cording to the principles of equity ;^'^ except that in West Virginia, the issue upon vyhich the grounds of the attachment are controverted is determined differently. ■"- § 809. Who may defend an attachment. Any one interested in the property attached may make de- fense to it."' Of course, under this principle, the defendant himself, or any one of several defendants whose property has been levied on, may defend the attachment,"* as well also as the assignee of the defendant, -'■'' and his personal representa- tive.*" So, a subsequent attaching creditor may appear and 108 Brewer v. Hutton, 45 W. Va. usCapehart v. Do-wery, 10 W. 106, 30 S. E. 81, 72 Am. St. Rep. Xa.. 130. 804. Of course, an attachment n* Windt v. Banniza, 2 Wash, against a trustee does not reach 147, 26 Pac. 189; Walts v. Nichols, trust funds. Jones v. Grumpier, 32 Hun (N. Y.) 276; Edwards v. 119 Va. 143, 89 S. E. 232. Hughes, 20 Mich. 289. Funds in the hands of a special H" Sims v. Jacobson, 51 Ala. 186; commissioner after an order to dis- Eingen Stove Co. v. Bowers, 109 burse may be attached, as they are Iowa 175, 80 X. W. 318; Palmer then no longer in custodia legis. v. Hughes, 84 lid. 652, 36 Atl. 431; Boylan v. Ilines, 62 "W. Va. 486, Witters v. Chicago Globe Sav. Bank, 59 S. E. 503, 13 L. R. A. iX.S.) 171 Mass. 425, 50 X. E. 932. 757, 125 Am. St. Rep. 983. "o Wilson v. Wilson, 1 H. & M. 100 Guarantee Co. v. First Nat. (Va.) 16. Bank, 95 Va. 480, 28 S. E. 909. "Where debts due to a person de- no Va. Code, 1904, §2964; ceased are attached by his creditor O'Brien v. Stephens, 11 Gratt. (Va.) in chancery, his executors or admin- 010; Coleman v. Waters, 13 W. Va. istrators may appear, file their an- 311; Hall V. Hall, 12 W. Va. 12. swers, and have the attachment dis- 111 See same citation.s. charged, on their motion, without 112 Post, § 813. giving security." Wilson v. Wilson, supra. § 810 Equity Procedure 1048 dei'i'ud the first atlaebment.^^' Indeed, it is expressly declared by statute that the defendant to an attachment, or any gar- nishee, or any party to any forthcoming or replevy bond given under the statute, or the officer who may be liable to the plain- tiff by reason of such bond being adjudged bad, or any person interested, may make defense to such attachment, but the at- tachment shall not thereby be discharged or the property levied on released.^^* The right to defend the attachment on any proper ground is not lost by an appearance to the suit and filing an answer as to the merits of the case.^^^ So, a party may defend the attachment without making any defense to the merits of the case.^-" § 810. The defenses to the attachment — Motion to quash. If the facts stated in the affidavit are not sufficient to author- ize the issuing of an attachment, or if the affidavit be otherwise insufficient,''^^^ or if there be any other material irregularity on the face of the proceedings necessary to authorize the issuance of an attachment, the court will quash it on the motion of a iiTMcCluny v. Jackson, 6 Gratt. 121 W. Va. Code, 1013, c. 106, (Va.) 96; Bank of Union v. Loeb, §19; Hall v. Brazelton, 46 Ala. 71 W. Va. 494, 76 S. E. 883; W. 359; Clowser v. Hall, 80 Va. 865; Va. Code, 1913, e. 106, §23. Sublett v. Wood, 76 Va. 318: Bear 118 W. Va. Code, 1013, c. 106, v. Cohen, 65 N. C. 511; Anderson §§18, 23; Va. Code, 1904, §§2080, v. Johnson, 32 Gratt. (Va.) 558; 2984. Elkins Nat. Bank v. Simmons, 57 ii» Dulin V. McCaw, 39 W. Va. W. Va. 1, 49 S. E. 893. 721, 20 S. E. 681. A variance between the affidavit 120 Miller v. Fewsmith Lumber and the declaration or bill may be Co., 42 W. Va. 323, 26 S. E. 175. reached by a motion to quash. Sim- "A defendant who appears spe- mons v. Simmons, 56 W. Va. 65, cially and moves to quash an at- 48 S. E. 833, 107 Am. St. Rep. 890. tachment of his property in the But a matter which properly action for insufficiency of the pro- should be determined on a hearing ceedings, does not thereby, if the on the merits, e. g., partnership motion should fail, make a, general liability for torts of the partners, appearance in the case." U. S. Oil can not be made the subject of a and Gas Well Supply Co. v. Gart- motion to quash. Henry Myers & Ian, 65 W. Va. 6S9, 64 S. E. 933; Co. v. Lewis, 121 Va. 50, 92 S. E. Lebow V. Macomber & Whyte Rope 988. Co., 81 W. Va. 21, 93 S. E. 939. 1049 Attachments § 811 party to the suit, or even upon its own motion,^^^ and without any application for such action by the defendant or any other person, ^^* and also whether there has been any appearance by the defendant/^'' but the duty is not imposed on the court ex officio to inquire into the regularity of service or defects not apparent on the face of the record or proceedings.^^^ And any material or substantial defect in the writ itself will afford a sufficient ground for quashing it.^^^ But upon a motion to quash for defects apparent in the proceedings, the court is limited to a consideration of the papers of record in the cause.^^' § 811. What matters apparent on the record will operate to quash or abate the attachment. In addition to what has already been said as to irregularities apparent on the face, or in the record, of the attachment pro- ceedings which may or may not be sufficient to invalidate the attachment, ^^^ we add here, by way of illustration, that the attachment will be abated, where the defendants are nonresi- dents, and have not appeared to the cause, nor been served with process, either by summons or order of publication ; ^^^ where the writ of attachment does not specify the sum demanded, nor 122 Bonner v. Brown, 10 La. Ann. & M. (Va.) 308; U. S. Baking Co. 334; Smith v. Hackley, 44 Mo. App v. Bachman, 38 W. Va. 84, 88, 18 S. 614; Coughlin v. Angell, 68 N. H. E. 382. 352, 44 Atl. 525; Haight v. Bergh, 124 1 Bart, Ch. Pr. (2n(l Ed.), 15 N. J. iL. 183; Ballard v. Great 656. Western M. & M. Co., 39 W. Va. 125 Mem, citing Pulliam v. Aler, 394, 19 S. E. 510. 15 Gratt. (Va.) 54. A motion to quash an attachment i2e Ballard v. Great Western M. for irregularity apparant on the rec- and M. Co., 39 W. Va. 394, 19 S. ord of the proceedings is always ad- E. 510; ante, § 804. dressed to the sound discretion of 127 Tingle v. Brison, 14 W. Va. the court. Holland v. White, 120 295; Fernau v. Butcher, 113 Pa. St. Pa. St. 228, 13 Atl. 782; Camp- 292, 6 Atl. 67; Cooper V. Reeves, 13 bell V. Morris, 3 Har. & M. (Md.) Ind. 53. 535. 12s Ante, §§ 795, 798, 801, 806. 123 Neill V. Rogers Bros. Produce 120 Kern v. Wyatt, 89 Va. 885, 17 Co., 41 W. Va. 37, 23 S. E. at p. S. E. 549. 707, citing Mantz v. Hendley, 2 H. § 812 Equity Procbduke 1030 the name of the plaintiff or defendant, nor to whom the prop- erty levied on belongs ; ^^^ where the attachment has been issued without any affidavit having been made ; ^'^ where the property levied on is not shown to be the property of the defendant.^*^ But the attachment will not be quashed because the affidavit upon which it is based contains two grounds, one good and the other bad.^^^ Nor does the service of a summons on a non- resident in the county in which such summons is issued abate the attachment. ^^^ § 812. Defenses to the attachment for matter dehors the record. In West Virginia, if the defendant desires to controvert the existence of the grounds upon which the attachment has been issued as stated in the affidavit, he must do so by filing a plea in abatement denying the existence of such grounds.-"^^" In Virginia, the defense to the attachment, resting upon grounds dehors the record, as, for instance, the nonexistence of the ground or grounds for the attachment, depending upon the evidence in the cause, is made upon a motion to quash or to abate the attachment, and not by plea, as in West Virginia.^^* The plea may be filed and the attachment defended, although the defendant may be unable to make defense to the merits of the cause.^^' The plea should be filed by the defendant or his ISO Clay V. Neilson, 5 Rand. (Va.) attachment, as well as the proceed- 596. ings themselves, are statutory; and isi Sims V. Tyrer, 96 Va. 5, 26 consequently, the mode of defense. S. E. 508 ; Cosner's Admr. v. Smith, prescribed by the statute, must be 36 W. Va. 788, 15 S. E. 977. strictly pursued, and no other plea i32 0fftendinger v. Ford, 86 Va. in abatement to an attachment, than 917, 12 S. E. 1. the one so prescribed, can be al- ias Ruhl v. Rogers, 29 W. Va. 779, lowed." Stevens v. Brown, supra. 2 S. E. 798. 130 Wright v. Rambo, 21 Gratt. 134 Hall V. Packard, 51 W. Va. (Va.) 158; Sublett v. Wood, 76 Va. 264, 41 S. E. 142. at p. 320; Burruss v. Trant, 88 Va. 135 W. Va. Code, 1913, c. 106, 981, 14 S. E. 845. §19; Miller v. Fewsmith Lumber i37 Miller v. Fewsmith Lumber Co., 42 W. Va. 323, 26 S. E. 175; Co., 42 W. Va. 323, 26 S. E. 175. Stevens v. Brown, 20 W. Va. 450. See ante, § 809, note 120, and casea "The defenses to proceedings by cited. 1051 Attachments s 814 attorney, and if the defendant be a corporation, it may do so by its attorney.^'* § 813. How issue on plea in abatement of the attachment is tried. In West Virginia, by express provision of the statute, the issue on a plea in abatement controverting the existence of the grounds of the attachment shall be tried by a jury, unless waived by the parties ; ^'' and this is so in equity as well as at law.^*" But in Virginia, the issue is determined by the court as in other chancery causes, and a trial by jury is not per- missible, except under circumstances justifying an issue out of chancery under the general rules of equity practice.^" §814. Burden of proof on trial of issue controverting the grounds of attachment. \then the truth of the grounds upon which the attachment is sued out has been put in issue either by plea in abatement, or by a motion to abate, as stated in the next preceding section, the burden of proof is on the plaintiff in the suit, and he must prove to the satisfaction of the jury (in West Virginia, unless a jury be waived), or to the court (in Virginia), the existence and truth of such grounds ^*^ by a preponderance of the evi- dence ; •'^ and if he fail to do so, the attachment will be abated.^^* Thus, if the ground of the attachment is that the defendant is a iionresident, it is incumbent upon the plaintiff, io8 Miller v. Fewamith Lumber k" See same citations ; Hogg, Eq. Co., 42 W. Va. 323, 26 S. E. 175. Princ, § 43, p. 76. 139 W. Va. Code, 1913, c. 106, i" 1 Bart, Ch. Pr. (2nd Ed.), § 19. 659. In order to dispense with a, jury, 1*2 Wright v. Eambo, 21 Gratt. the record must show affirmatively (Va.) 158; Burruss v. Trant, 88 that a jury was waived. Reference Va. 981, 14 S. E. 845; Robertson to a commissioner and taking proof v. Hoge, 83 Va. 124, 1 S. E. at p. before him does not constitute such 670; W. Va. Code, 1913, c. 106, a A^aiver. Yellow Pine Lumber Co. § 19. V. Hays, 81 W. Va. 46, 94 S. E. na Waring v. Fletcher, 152 Ind. /2. 620, 52 N. E. 203. i-n /dem §815 Equity Procedure 1052 in an issue raised as to this matter, to show that the defendant was a nonresident at the time the attachment issued.^" Upon this principle, the plaintiff has a right to open and conclude the case upon the trial of such issue,"^ both as to the evidence ^" and argument of counsel.^** § 815. As to the evidence on the trial of the issue controvert- ing the grounds of attachment. The plaintiff is entitled to the issuance of the attachment upon his belief of the existence of the grounds upon which its issuance is authorized; but the law does not intend to make the rights of the defendant ultimately depend upon belief.^" The maintenance of the attachment must depend upon the existence of the probable fact sworn to by the affiant, and which, accord- ing to the policy of the law, justifies the remedy of attach- ment.^^" Upon the trial of the issue raised by the plea, or mo- tion, involving the question of the truth or falsity o# the grounds of the attachment, the testimony on the part of the plaintiff is limited to what is proper in sustaining the ground alleged in the affidavit, and on the part of the defendant, to 1*5 Robertson v. Hoge, 83 Va. 124, In Burruss v. Trant, supra, in 1 S. E. 670. considering the question of the suf- 1*8 Ante, § 593 ; Sublett v. Wood, fieiency of the evidence in that ease, 76 Va. 318. the court, spealiant to section 2074 of the Virginia Code nv. Va. Code. 1013. c. 106, § 12. See ante, note 160). Kaylor v. Daw Pocahontas Coal Co.. niipra. "The effect of a bond given by the defendant under section 2072 of the Code, with condition to perform the iudgment of the court, is to 'release from any attachment the whole of the state attached.' but it does not debar the plaintiff from suing out other attachments for the same debt and having the same levied on other property of the de- fendant." hlem. 1 "4 Home Distilling Co. v. Him- niel. 74 W. Va. 756, 82 S. E. 1094. § 821 Equity Procedure 1058 § 819. To whom the bond for the release of the property attached is payable and the penalty thereof. The bond, given either for the forthcoming or release of the property attached, shall be taken by the officer serving the at- tachment, with security, payable to the plaintiff, and in a pen- alty, in the latter case, at least double the amount or value for which the attachment issued, and in the former either double the same, or double the value of the property retained or re- turned, at the option of the person giving it."^ The bond here contemplated, as well as any other bond under the attachment law, may be given by the party himself or by any other person.^'' § 820. Where bond for release of attached property returned and filed. The bond mentioned in the next preceding section "shall be returned by the officer to, and filed by, the clerk of the court in which the suit is pending, or to which the attachment is returnable; and the plaintiff may, within thirty days after the return thereof, file exceptions to the same, or to the sufficiency of the security therein. If such exceptions be sustained, the court shall rule the said officer to file a good bond, with suf- ficient security, to be approved by it, on or before a certain day to be fixed by the court. If he fail to do so, he and his sureties in his official bond shall be liable to the plaintiff as for a breach of such bond. But the officer shall have the same rights and remedies against the parties as to any bond so adjudged bad, as if he were a surety for them." i" § S21. Application of interest and profits of attached prop- erty, and discharge of attachment on defendant's giv- ing bond. When any attachment is sued out, either at law or in equity (except against nonresidents in West Virginia), on affidavits ifisW. Va. Code. 1913, c. 106, i^t w. Va. Code, 1013, c. 106, §10: Va. Code, 1004, §2072. §11; Va. Code, 1004, 5 2073. 168 W. Va. Code. 1013, c. 106, S29; Va. Coda 1004, 5 2900. 1059 Attachments § 822 under section 1, chapter 106, West Virginia Code, and sections 2959, 2961, 2964, Virginia Code, although the property or estate attached be not replevied, as the law provides it may be,^^* the interest and profits thereof, pending the suit and be- fore judgment or decree, may be paid to the defendant, if the court deem it proper ; and at any time during such period the court, or in vacation the judge thereof, may discharge the at- tachment, as to the whole of the estate of the defendant against whom the claim is, on his giving bond, with security, payable to the plaintiff in a penalty double the value of such estate, with conditions, if judgment or decree be rendered for the plaintiff in said suit, to pay the said value, or so much thereof as may be necessary to satisfy the same.-"'^ § 822. The care and custody of property attached. In the yirginias, the statutes prescribe that all property seized under any attachment, and not replevied or sold before judgment, shall be kept in the same manner as similar property taken under execution.^'"' When properly attached, the prop- erty is strictly in the custody of the law,^'^ and the attaching creditor has no property in or right to the possession thereof, by reason of his attachment lien, and can not maintain an in- dependent action for its enforcement, his sole remedy being against the officer.^'^ "In order to preserve an attachment when made, the officer must, either by himself or by his agent, retain his control over, and the power of taking immediate possession of, the attached property, in all those cases in which the property is capable of being taken into actual possession, unless it is released in some 168 Ante, § 818. Gerdes v. Sears, 13 Or. 358, 10 Pac. 169 W. Va. Code, 1913, c. 106, 631. §12; Va. Code, 1904, §2974. "2 Mitchell v. Sims, 124 N. C. ITOW. Va. Code, 1913. c. 106, 411, 32 S. E. 735; Atkins v. Swopp, §13; Va. Code, 1904, §2975. 38 Ark. 528; Dufour v. Anderson, "iDollins V. Lindsey, 89 Ala. 95 Ind. 302; Heathman v. Million, 217, 7 So. 234; Hunt v. Field, 9 17 Ky. L. Eep. 421, 31 S. W. 473.- K J. Eq. 36, 57 Am. Dec. 365; Blanchard v. Brown, 42 Mich. 46, McLean v. Douglass, 28 N. C. 233; 3 N. W. 246. § 824 Equity Procedure 1060 mode prescribed by statute. If he does not do this the attach- ment will be regarded as abandoned and dissolved, and if the .sheriff or his appointed keeper thus abandons the possession of the property and it comes into the possession of an adverse claimant the lien created by the attachment is lost." ^" § 823. How attached property that is expensive to keep or perishable may be sold. All property levied on by attachment that "is expensive to keep, or perishable, may be sold by order of the court, or in vacation thereof, by .order of the judge; such sale to be made in the same manner as if it were a sale under execution, except that where the claim for which the attachment was sued out is not yet payable, or the court or judge sees other reasons for directing a credit, the sale under this, or any other section of this chaptei', shall be on credit until the time it is payable, or such other time as the court or judge may direct, and for the proceeds of sale, bond with good security shall be taken, pay- able to the officer, for the benefit of the party entitled, and shall be returned by the officer to the court." ^''* § 824. Who may intervene in an attachment proceeding to contest its validity. Any person interested, as we have seen,^^^ may intervene by petition in an attachment suit within the time provided by law."" In addition to what has already been said on this subject, it may be observed that generally any person other than the defendant, having either a general or special property in the goods attached, may intervene in the attachment suit to have his rights adjudicated.^" Thus, a subsequent attaching ered- 173 4 Cyc. 654, 655, and cases i'' Sliinn, Attaclini., § 427 ; Weber cited. " V. Jlick, 131 111. .520, 2:1 X. E. 646; iT-iW. Va. Code, 1013, c. 106, Fousliee v. Owen, 122 N. C. 360, 2fi § 13; Va. Code, 1904, §2975. S. E. 770. 175 Ante, § ?55. "He must claim the attached iTO Ante, § 257. property or an interest in it or a 1061 Attachments §824 itor,'"^ a stranger whose property has been seized/'^ one who elaiins to be the owner or purchaser in good faith and for a valuable consideration,^''"' a Ismdlord claiming a special prop- erty by virtue of his lien,'**' laborers claiming liens for wages upon the property attached/^^ a person claiming under a deed of trust as a beneficiary or cestui que tritst,'^^^ a mortgagee when the subject of his mortgage is attached for the debt of the mortgagor,^^'' or a judgment creditor or one who has been subrogated to his rights,^^" may intervene in the attachment suit. But intervention is not usually proper when the claim is based on a sale, transfer or mortgage made after the levy of the attachment, ■'^° except for the purpose of disputing the valid- ity of the attachment. '^^^ lien thereon. Code, c. 106, §23; Smith V. Parlcersburg Co-Op. Assn., 48 W. Va. 232; Miller v. White, 46 W. Va. 67. A mere creditor at large of the debtor is not such a person. Grim v. Harmon, 38 W. Va. 506." Yellow Pine Lumber Co. V. Mays, 81 W. Va. 46, 94 S. E. 42. iTsM'Cluny v. Jackson, 6 Gratt. (Va.) 96; Miller v. White, 46 W. Va. 67, 33 S. E. 332, 76 Am. St. Eep. 791 ; Bank of Union v. Loeb, 71 W. Va. 404, 76 S. E. 883. Where an attachment was dis- solved on motion because issued on false suggestions, as provided by Code, § 2981, the attaching creditor, or his trustees under a trust deed conveying the attached property as security for tlie debt sued on, can not intervene, and claim the prop- erty thereunder, on the motion to quash, under Code, § 2984, author- izing a third person to intervene in attachment, and dispute the plaintiflf's right to the property. Littell V. Julius (Lansburg Co., 96 Va. 540, 32 S. E. 63. "1 1 Bart., Ch. Pr. (2nd Ed.), 052, 653. And in such a ease he may sue the sheriff wlio levied the attachment. Idem. ISO 1 Shinn, Attaehm., § 427, cit- ing Wallace v. Maroney, 6 Maekey (D. C.) 221; Heaverin v. Robin- son, 15 Ky. Law Rep. 15, 21 S. W. 876; Ft. Worth Pub. Co. v. Hit- son, 80 Tex. 216, 14 S. W. 843, 16 S. W. 551. See Lipscomb's Admr. v. Condon, 56 W. Va. 416, 49 S. E. 392, 67 L. R. A. 670, 107 Am. St. Rep. 93S. 181 See same citations. 182 Idem. 183 Idem. Hi Idem. 185 Yellow Pine Lumber Co. v. Mays, 81 W. Va. 46, 94 S. E. 42. isii Runner v. Scott, 150 Tnd. 441, 50 N. E. 479; McAbee v. Parker, 78 Ala. 573; Harrison v. Shaffer, 60 Kan. 176, 55 Pac. 881; Chapman v. Railroad Co., 26 W. Va. 299. 187 4 Cyc. 727. § 826 Equity Procedure 1062 §825. The intervener's petition in an attachment suit. The only way in which' a third party may intervene in an attachment suit is by filing his petition in the court in which the suit or proceeding is pending; he can not do so by mere motion. 1^^ The petition, in order to be filed, should be in writing 1^5 and must show that the party desiring to intervene has an interest in the controversy,"" and its nature, or in what that interest consists;"^ that is, whether the petitioner is the owner in whole or in part of the property attached, or is the claimant or holder of a lien thereon, specifying the character of the lien, and how such lien was obtained."^ If the party claims the property in a fiduciary capacity, he should allege in his petition facts showing this character of interest therein.^'' So, if he claims a lien by attachment, the petition must show an attachment levied on the same property upon which that of the plaintiif is levied.^'^ § 826. How the matter arising upon the petition of an inter- vener in an attachment proceeding is tried. It is expressly provided by statute in the Virginias, as al- ready stated, that upon filing the petition and giving the secur- ity for costs 1'^ the court without any other pleading shall im- 188 Ludington v. Hull, 4 W. Va. a jury to inquire into the claim." 130; Tappan v. Pease, 7 W. Va. Cliapman v. Railroad Co., supra. 682. i"! 1 Shinn, Attachm., §433: i89Neal V. Newland, 4 Ark. 450. Maus v. Borne, 123 Ind. 522, 24 X. 13" Smith V. Parkersburg Co-Op. E. 345. Assn., 48 W. Va. 232, 37 S. E. 64.5 -, ms 1 Shinn, Attachm., § 433 ; Smith V. Hunt, 2 Rob. (Va.) 206: Maus v. Bome, 123 Ind. 522, 24 N. Chapman v. Railroad Co., 26 W. Va. E. 345. 324; Yellow Pine Lumber Co. v. 'os Sammis v. Hitt, 112 Iowa 664. Mays, 81 W. Va. 46, 04 S. E. 42. 84 N. W. 945. "Where under section 24 of chap- i"-* Ludington v. Hull, 4 W. Va. ter 106 of the Code a claimant of 130. the property files a petition, unless ''^'> Ante, §255. the petition and the accompanying "A claimant is not Generally per- exliibits show a legal or equitable mitted to intervene by mere motion claim to the property, the court for the purpose of assailing a prior does not err in refusing to empanel attachment. He is generally re- 1063 Attachments § 827 panel a jury to inquire into such claim.^'" The right of the parties to have the matters arising upon the petition tried by a jury is absolute, and it is error for the court to pass upon the question presented by it without the intervention of a jury, if either party demands it.^" Of course, a trial by jury may be waived, and the matters in dispute submitted to the court, by whom they may be heard and determined in the same manner and with the same effect as if tried by a jury.^°^ § 827. The issue to be tried by the jury in cases of interven- tion in an attachment. Before the case can be tried, there must be, as in other cases, an issue between the parties, which the jury must be sworn to try.^" When the party intervening claims title or ownership of the property attached, he is generally concerned only with that right, so that the issue to be tried is whether the property belongs to the attachment defendant or to the intervening claimant,^"" unless his title of ownership arose after the levy of the plaintiff's attachment.^"^ But when plaintiff does not con- quired, in addition to his petition Rep. 938; Yellow Pine Lumber Co. or affidavit, to give security for v. Mays, 81 W. Va. 40, 04 S. E. 42. costs, which is usually by bond los Ramshurg v. Erb, 16 W. Va. conditioned to pay all such costs 777; Yellow Pine Lumber Co. v. and damages as may be recovered Mays, 81 W. Va. 46, 94 S. E. 42. because of delay or otherwise, oe- But the record must aflfirmatively casioned by such intervention." 1 show such waiver. Waiver will not Shinn, Attachm., § 434. be implied from a reference to a 196 W. Va. Code, 1913, u. 106, commissioner and taking evidence §23; Va. Code, 1904, §2984. before him. Idem. Xor by the fact The petition is the only pleading that the court tried the issue with- permissible. No answer, plea, nor out objection. Lipscomb's Admr. v. replication may be filed to the peti- Condon, 56 W. Va. 416, 49 S. E. tion. Lipcomb's Admr. v. Condon, 392, 67 L. R. A. 670, 107 Am. St. 56 W. Va. 416, 49 S. E. 392, 67 L. Rep. 938. R. A. 670, 107 Am. St. Rep. 938; ins Starke v. Scott, 78 Va. 180; Yellow Pine Lumber CD. v. Mays, First Kat. Bank v. Asheville Fur- 81 W. Va. 40, 94 S. E. 42. niture & Lumber Co., 120 N. C. 107 Anderson v. Johnston, 32 475, 26 S. E. 927. Gratt. (Va.) 558; Lipscomb's Admr. 21104 Cye. 740, citing numerou V. Condon, 56 W. Va. 416, 49 S. E. cases. 392, 67 L. R. A. 670, 107 Am. St. ="i Ante, § 824. § 827 Equity Procedure 1064 cede the validity of the claimant's lien or interest in the at- tached property, but contests or controverts the same, the proper issue is whether the petitioner (naming him) has any lien on the property, or any of it, levied upon by the officer (naming him), under the attachment sued out by the plaintiff in the cause against the estate of the defendant.^"^ Under this issue, the burden is on the claimant to establish his lien or property t^laim-^^^ Hence he is the plaintiff in the issue, and the plaintiff alone in the attachment suit is made the defend- ant.^"^ Whoever has the burden of proof has the right to open and closer's On the trial of this issue, the validity of the claimant's lien or alleged interest is involved, and if it too be based upon an attachment levied upon the property, the plain- tiff has the correlative right of showing its invalidity, either for a patent defect or want of ground of attachment.^"' If, however, the plaintiff does not question the lien or claim of the intervener, who files his petition as provided by statute, the claimant may at once assail the plaintiff's attachment, either by a motion to quash for patent defects,^"' or by plea in abate- ment in West Virginia, or motion to abate in Vij'ginia; ^"* and the validity of plaintiff's attachment dependent upon matter of fact will be tried by a jury in West Virginia, but by the court in Virginia as in other chancery causes.^"" 20= Starke v. Seott, 78 Va. 180. -^usAittc, §§810, 812, 826. Tlie issue given in the text was ^n^ Ante, §813. the one directed in Starke v. Scott, "Intervention is sometimes con- in wliich the claimant's lien was sidered in the nature of an inde- bascd upon a subsequent attacli- pendent proceeding in which the ment, and tlie issue tliere was ap- claimant is plaintiff, and is else- proved as proper. wliere considered in the nature of 203 Alpine Cotton Mills v. Weil, a pica denying the rights of the 120 N. C. 452, 40 S. E. 218; Yellow attachment plaintiff. When inter- Pine Lumber Co. v. Mays, 81 W. vention is deemed to be in the Va. 46, 94 S. E. 42. nature of an independent proceed- 204 1 Shinn, Attacbm., § 43.5. ing, the burden of proof is upon the 205 Idem, § 437. claimant in the first instance to 2or, Miller v. White, 46 W. Va. 67, establish his right and title in the 33 S. E. 332. property claimed, and this he must 207 Ante, § 826. do by a, preponderance of evidence. 1065 Attachments § 829 § 828. The trial of the intervener's case before the jury. The issue raised upon a petition filed by an intervener is analogous to the ordinary issue out of ehaneery,^" so that its trial is conducted as any other trial before a jury.^" All mat- ters occurring in the trial before the jury are no part of the record unless made so by bills of exceptions,"^ so that if the claimant or the plaintiff in the attachment would have the decree of the court as based upon the verdict of the jury re- viewed, it is necessary that all the evidence before the jury, and rulings of the court upon the trial, be made part of the record in the chancery cause by proper bills of exceptions.^^' "The proof on the trial of the issue raised by intervention is governed by the same rules that govern the introduction of proof in other cases." ^^■' § 829. How a party may be summoned to answer as garnishee. The attachment law provides that the plaintiff may, by an endorsement on the order of attachment, designate any person as being indebted to, or having in his possession the effects of the defendant, or one of the defendants ; and in such case the clerk shall make as many copies of the order as there are per- sons designated, with an endorsement thereon that the person so designated is required to appear at the next term of the court in which the action or suit is pending, and disclose on oath in what sum he is indebted to the defendant, and what effects of the defendant he has in his hands; and it shall be When the intervention is deemed to ment the burden is upon the attach- be a denial of the attachment plain- ment plaintiff to support his at- tiff's right to hold the property, tachment." 1 Shinn, Attachm., then the burden of proof rests upon § 437. the attachment plaintiff to show a 210 Joslyn v. State Bank, 86 Va. levy of a valid process and prima 287, -10 S. E. 166. facie ownership in the attachment 211 Ante, §§696, 607. defendant before it is necessary for 212 Joslyn v. State Bank, 86 Va. the claimant to introduce any evi- 287, 10 S. E. 166. dence. When the intervener asserts ' 2i.n Joslyn v. State Bank, 86 Va. ownership the burden of proof is on 287, 10 S. E. 166. him to establish it, but when he 214 1 Shinn, Attachm., § 437. denies the validitv of the attach- §829 Equity Procj;dure 1066 sufficiently levied on such person by delivering him a copy of the order and endorsement, or by a service thereof upon him in the same manner as a notice may by law be served.^^^ It will be observed that the "West Virginia statute provides for the return of the garnishment at the next term of the court.^^^ This means at the next term after it is issued, and if it is not so returnable it is void and can not be amended, but will be quashed. ^^' And a party can not be required to appear as a garnishee at any other time, any more than a party to an 2ii-. W. Va. Code, 1913, c. lOfi, § 5. The statute of Virginia is sub- stantially tlie same as tliat of West Virginia: "Tlio plaintiflF, liia agent or attorney may, by an enilorscnient on tlic attaeliment at tlie time it is issued, or in writing at any time before tlie return day thereof, desig- nate any person as being indebted to, or having in his possession effects of, the defendant or one of the de- fendants; and in sucli case the ofli- cer issuing tlie attachment shall make as many copies thereof as there are persons designated, with an endorsement on each copy that the person so designated is required to appear at the term of the court to which the attachment is return- able, and disclose on oath in what sum he is indebted to the defendant, and what effects of the defendant he has in his hands." Va. Code, 1004, § 29fi7. "Garnishment is a dual proceed- ing, moving against the garnishee in personam to compel him to an- swer and disclose what property and estate of the defendant he has in his hands and to hold the same subject to the order of the court, and against the property and estate itself, to extinguish the right of the defendant in it by condemnation and appropriation of it to the satisfaction of the plaintiff's claim. ******* "A garnishee can not give juris- diction of a debt due from him by his voluntary appearance, when not previously served with the order of attachment, nor when an attempted service is invalid." Pennsylvania Railroad Co. v. Rogers, 52 W. Va. 450, 44 S. E. 300, 62 L. R. A. 178. "In garnishment, it is primarily essential to the court's jurisdiction in relation to the debtor property sought to be affected, that the gar- nishee be actually served with the writ of attachment whereon he is designated as such. Acceptance of service or voluntary appearance by the garnishee will not suffice." Atkins V. Evans, 76 W. Va. 17, 84 S. E. 901 ; First Nat. Bank of New- Cumberland V. Smith, SO W. Va. 678, 93 S. E. 755. 2i«W. Va. Code, 1913, o. 106, §5. -1' Coda V. Thompson, 39 W. Va. 7.3, 19 S. E. 548. In the course of his opinion in this case, Brannon, J., says: "It occurred to me at first that we might treat this order to the garni- shee not as process in the legal sense hut as if merely ancillary to the attachment, designed only to warn the garnishee and tie up the effects in his hands, and not to be 1067 Attachments §830 action can be required to appear in obedience to an original summons at any other time than that prescribed by law.^^* § 830. Who may be gfamisheed. The statute says that the plaintiff may designate "any person as being indebted to, or having in his possession, the effects of tested by the strict rules governing process constituting the basis of judicial proceedings. But this the- ory will not bear reflection. As to the garnishee, it is the only proc- ess. Against him, it is the sole basis of judgment. The garnish- ment is a suit against him, process, in the legal sense, not pleading, and subject to a motion to quash for inherent defects in the order. Upon it may rest important litigation and trial of issues between the garnishee and the plaintiff. It is a suit against the garnishee. Drake, Attachm., §451c; Wade, Attachm., §§ 333, 340; 8 Am. & Eng. Enc. Law, 1100; Middleton Paper Co. v. Rock River Paper Co., 19 Fed. 252. The order to the garnishee to appear is endorsed on the attachment un- der section 5, chapter 106, and the service of both the order of attach- ment and the order citing the gar- nishee iff appear is the only mode of service on him under that sec- tion ; and the order to the garnish- ee to appear must be regarded as part of the order of attachment, which is certainly process. Hence, we must regard the garnishment order as process and tested by the law relating to it as such. "The language of Judge Allen in Pulliam V. Aler, 15 Gratt. 61, that the fact that the return of the sheriff was defective in not show- ing that he summoned the gar- nishee to appear at a particular time, was unimportant, is unim- portant in the decision of our case. The then existing attachment law simply required the plaintiff to designate a garnishee, and required the sheriff to summon him to ap- pear at the first day of the next term, and did not require any sum- mons by the clerk, as does our law. It was not process under the Vir- ginia law, but it is under ours. And, as Judge Allen himself said, that was a defect merely in the offi- cer's return of service, and was not a question of the illegality or validity of the garnishment process itself, whereas in this case it is purely a question of the validity of process. "For these reasons I reach the con- clusion that the order to summon the garnishee is void, not simply irregular. Being void, the motion of the defendant to amend it so as to make it returnable to the May term was properly refused, because,' while a process merely irregular may be, under some circumstances, amended, one wholly void is incap- able of amendment. Kyles v. Ford, 2 Rand. (Va.) 1; Wade, Attachm., §358; Drake, Attachm., § 184a; Burh V. Barnard, 4 Johns. 309; Kenworthy v. Peppiat, 6 E. C. L. 488; Middleton Paper Co. v. Rock River Paper Co., 19 Fed. 252; Dur- ham v. Beaton, 81 Am. Dec. 275." 218 Idem. §831 Equity Procedure 1068 the defendant, or one of the defendants."^" This word "per- son" as here used is of broad and comprehensive meaning, ana includes natural persons and corporations of all kinds,^^" ex- cept those that are excluded from its operation by the law of public policy.^^^ §831. Same subject, further considered. As every one may be garnisheed except those whom the policy of the law exempts, specific mention will here be made of those persons who can not be made to answer as garnishees. Upon this principle, it is well settled, upon the doctrine of sound policy, that a state or its officers as such can not be gar- 219 W. Va. Code, 1913, u. 106, § .5; Va. Code, 1904, § 2R67. 220 Portsmouth Gas Co. v. San- ford, 97 Va. 124, 33 S. E. 516; Bait. & 0. E. R. Co. V. Gallahue, 12 Gratt. (Va.) 655; C. & O. R. R. Co. V. Paine, 29 Gratt. (Va.) 502 Brown v. Gates, 15 W. Va. 155 Mahany v. Kephart, idem, 623 Western Union Tel. Co. v. City of Richmond, 26 Gratt. (Va.) 20; Quesenberry v. People's Bldg. & L. Assn., 44 W. Va. 515, 30 S. E. 73, 74; Shenandoah Val. R. R. Co. v. Griffith, 76 Va. 913. "A nonresident, temporarily in the state, may be summoned and compelled to answer as garnishee, but if, upon his answer, it be es- tablished that he is a nonresident, he can not be subjected to further proceedings in the cause, for want of jurisdiction, unless, when gar- nished, he have in the state prop- erty of the defendant in his posses- sion, or be bound to pay the de- fendant money or deliver to him property within the state. "Foreign corporations and non- resident individuals stand upon the same footing In respect to the gar- nishment, except that the former are subject to garnishment when doing business in the state in which the garnishment issues in such sense and to such extent as to have become domiciled therein." Penn- sylvania Railroad Co. v. Rogers, 52 W. Va. 450, 44 S. E. 300, 62 L. R. A. 178. "Such corporations may be pro- ceeded against as garnishees, with- out reference to the jurisdiction m which debts due from them were contracted or payable. "For the purpose of garnishment, a debt is annexed to the person oi the debtor and subjee,'- to, garnish- ment wherever he is found, unless expressly made payable elsewhere. "A debt may be attached by gar- nishment at tlie place of residence of the debtor, although it be e.K- pressly made payable elsewhere." Baltimore & Ohio Railroad Co. v. Allen, 58 W. Va. 388, 52 S. E. 4(i5, 3 L. R. A. (N.S.) 608, 112 Am. St. Rep. 975. 221 Brown v. Gates, l."i W. Va. 155, in the opinion of tlie court at pp. 156-164; p- w", § 831. 1069 Attachments §831 nisheed ; ^^^ nor, generally, can the agencies of a state, such as counties and incorporated cities and towns.^^^ But in Virginia, it is held that it is not contrary to the public policy of that state to garnishee a municipal corporation and that such a cor- poration may be garnisheed.^^* "Nor do statutes providing for garnishment process usually include the following persons: the clerk of a court holding funds as such ; a guardian holding moneys as such; a receiver of the court; a public ofBeer as to funds which he holds in his public capacity; a sheriff, commit- tee of a lunatic, assignee, referee, commissioner of a court, or a trustee holding funds as the agent of the court ; a purser, pay- master or other financial agent of the government. Neither is one who may only be liable to the debtor for unliquidated dam- ages, as for the breach of a warranty, amenable to the process of garnishment." ^^^ As a general rule, an executor or ad- ministrator can not be summoned to answer as a garnishee,^^^* 222Ro]lo V. Andes Tna. Co., 23 Gratt. (Va.) 509; Hogg, Eq. Prin., § 42, p. 73. 223 Hogg, Eq. Princp., § 42, p. 73, citing very many cases. "Municipal corporations or other public corporations on principles of public policy, are not liable to gar- nishee process." Welch Lumber Co. V. Carter Bros., 78 W. Va. 11, 88 S. E. 1034; Leiter v. American- La France Fire Engine Co., 104 S. E. 56 (W. Va. 1920). " 'The National Home for Dis- abled Volunteer Soldiers,' situated within the limits of Elizabeth City county, in this state, upon land pur- chased by the United States with the consent of the state legislature, is a corporation created under the laws of congress, and is under the exclusive jurisdiction of the fed- eral government. Its officers are disbursing officers of the United States, and the funds in their hands, oB such, can not be attached or gar- nisheed under process from a state court." Foley v. Shriver, 81 Va. 568. 22* Portsmouth Gas Co. v. San- ford, 97 Va. 124, 33 S. E. 516. 225 Hogg, Eq. Prin., § 42, p. 73, citing many authorities from differ- ent states. But wlien an officer holding funds in cvstorHa le.gis has been ordered by the court to disburse such funds, the funds then become subject to garnishment, as they are no longer in custodia legis. Boylan v. Hines, 62 W. Va. 486, 59 S.E. 503, 13 L. B. A. (N.S.) 757, 125 Am. St. Rep. 983. 22sa Brewer v. Hutton, 45 W. Va. 106, 30 S. E. 81, 72 Am. St. Rep. 804; Parker v. Donnally, 4 W. Va. 648; Whitehead v. Coleman, 31 Gratt. (Va.) 784; Biekle v. Chris- man, 76 Va. 678. In Sandidge v. Graves, 1 Pat. & H. (Va. ) 101, which was a suit in equity, the court decides: "A §832 Equity Procedure 1070 nor can a debtor of the estate of his decedent be summoned to answer as such ; ^^^ nor can the plaintiff in. an action either summon or charge himself as garnishee therein. ^^^ § 832. The garnishee a necessary party to the suit in equity. In equity, the garnishee ought to be made a party defendant to the bill,^^' along with the principal defendant, whose pres- creditor, at whose suit process of foreign attachment against an ab- sent debtor is served on one of two executors, is entitled to priority of satisfaction, out of a legacy to the absent debtor, over an assignee of the legacy, who claims under an assignment dated the day after the service of the attachment on the executor.'' See also, Vance v. McLaughlin, 8 Gratt. (Va.) 289. In Portsmouth Gas Co. v. San- ford, supra, in discussing the rule of public policy which exempts from process of garnishment, Buchanon, J., spealving for the whole court, says: "In that class of cases an- other rule of public policy is to be considered, and that is that the state owes to its own citizens to provide appropriate remedies by which home creditors may subject the assets or effects of nonresident debtors to the payment of their debts. The general rule is that a foreign personal representative or guardian can not be sued out of the jurisdiction in which he qualified, because his duties are considered as strictly local, yet under special circumstances, in order to protect home creditors, the general rule gives way, and our courts take jurisdiction of suits against them, as was done in Tunstall v. Pollard's Admr., 11 Leigh 1, and in Glenden- ning v. Conrad, 91 Va. 410 [21 S. E. 818]. The ground upon which our courts take jurisdiction in such cases is that it is the duty of every sovereignty to provide for the secur- ity of its own people Our attach- ment laws against nonresident debt- ors having assets or effects in this state are based upon the same prin- ciple, and give creditors the right to subject such assets or effects to the payment of their debts in suits upon constructive notice in viola- tion of the general rule that all parties sued are entitled to personal notice." 220 Brewer v. Hutton, 45 W. Va. 106, 30 S. E. 81, 72 Am. St. Rep. 804. 227 First Nat. Bank v. Elliott, 62 Kan. 764, 64 Pac. 623, 55 L. R. A. 353. 228 Hogg, Eq. Prinep., §42, cit- ing McKinsey v. Squires, 32 W. Va. 41, 9 S. E. 55; Glassell v. Thomas, 3 Leigh (Va. ) 113; Jameson v. De- shields, 3 Gratt. (Va.) 4; Smith v. Jenny, 4 Hen. & Munf. (Va.) 440; Ross V. Austin, 4 Hen. and Munf. (Va.) 502; Kennedy v. Brent, 6 Craneh 187, 3 L. Ed. 194; 1 Bart., Ch. Pr., 580, 581; Carson v. Allen, 2 Chand. (Wis.) 123, 54 Am. Dee. 148; McKey v. Cobb, 33 Miss. 533; Dennison v. Benner, 36 Me. 227; Brockman v. Hanks, 5 J. J. Marsh. (Ky.) 252; Keel v. Ogden, 5 T. B. Monroe (Ky.) 362. 1071 Attachments ' § 833 ence is essential to the maintenance of the suit;^^^ and after being so made a party, his liability, if any, is disclosed by his answer to the bill.^^" Being thus a defendant, he can make such a defense as in law or equity will show that he is not indebted to the principal debtor in the suit.^'^ §833. As to the defenses which may be made by the gar- nishee. The defenses which the garnishee may interpose in the cause in which he is summoned to answer as such, are those only which concern his own safety and protection. ^'^ He can not interfere as to the merits of the controversy between the plain- tiff and the principal defendant in the suit, as it is a matter of no concern to him which party succeeds or to whom he pays the money due from him to such defendant.^'' Therefore, the sole defenses which he can make are those which involve the validity and regularity of the attachment proceedings by virtue of which he has been summoned to answer as a garnishee,^'* and that of his own liability to the debtor, or the effects of 228 1 Bart., Ch. Pr. (2nd Ed.),, to the attacliing creditor, until the 616. attachment is disposed of and then 230 Hogg, Eq. Princp., §42, p. 72, he must pay only according to the citing W. Va. Code, e. 106, § 14. result of that proceeding." 2 See also, Va. Code, 1004, § 2976. Shinn, Attachm., § 471. 231 Hogg, Eq. Princp., § 42, p. 72, "The garnishee, in the eye of the citing numerous cases. law, is a mere stakeholder, a custo- 232 1 Shinn, Attachm., § 471. dian of property or estate attached 233 7rfem; Exchange Bank v. Free- in his hands, and has no right to man, 89 Ga. 771, 13 S. E. 693. do any voluntary act to the prej- "It is his business to stand aloof udice of either the plaintiff or de- from the contesting parties and to fondant in the action. He must let bind himself to the separate inter- the law take its course, except that est of neither. He is entirJy in- he may protect himself from .ieop- different as between them and can ardy or injury by unautliorized properly do nohing to aid either acts and proceedings." Pennsylva- party in the litigation. He must nia Railroad Co. v. Rogers, 52 W. act solely for his own protection. Va. 430, 44 S. E. 300, 62 L. R. And he is restrained from paying A. 178. over the money either to his in- -^* Hogg, Eq. Princp., § 42; 2 dividual creditor — the defendant — or Shinn, Attachm., § 472. §834 Equity Procedure 1072 the latter which he has in his possession or control.^'^ It is the duty of the garnishee, for his own protection, to defend the suit on the ground that the court issuing the garnishment process has no jurisdiction over the main defendant in the cause, or subject matter of controversy ; ^'^ and it is likewise his duty to defend against the garnishment on the ground that he can not be made amenable to the process of garnishrdent, as that he is a fiduciary and holds the fund or owes the debt in that capacity.^^' He may, of course, make the specific defenses of a failure of consideration, usury, the statute of limitations and payment.^'* § 834. Proceedings upon the appearance of the garnishee. It is provided by statute in the Virginias that, "when any garnishee shall appear, he shall be examined on oath. If it appear on such examination, or by his answer to a bill in 230 2 Sliinn, Attaehm., §§471-475. The garnisliee may assert a set- off against tlie debtor in opposition to the claims of creditors. "The rule of our decisions and the law everywhere is that the rights of a plaintiff against a garnishee are the same as and can rise no higher than the rights of the principal debtor, and that whatever rights of set-off or counterclaim the garnishee has against him. he may offset against his creditors. Crane v. Standard Lumber Jlfg. Co., 77 W. Va. 617, 87 S. E. 1018; Harrison B. Schuler v. I. N. Israel et al., 120 U. S. 506, 7 Sup. Ct. 648, 30 L. Ed. 707; Viterbo v. Friedlander, 120 V. S. 707, 7 Sup. Ct. 962, 30 L. Ed. 776; Rolling Jlill Co. v. St. Louis Ore & Steel Co., l.-)2 U. S. 506, 14 Sup. Ct. 710, 38 L. Ed. 565; Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545, 59 S. E. 473, 12 R. C. L. 830, et seq." Bowling V. Bluefield-Graham Fair Assn., 84 W. Va. 41, 99 S. E. 184. See Lutz v. Williams, 79 W. Va. 609, 91 S. E. 460, L. R. A. 1918A, 76. 236 Dennison v. Taylor, 142 111. 45, 31 N. E. 148; Roberts v. Hick- ory Camp Coal & C. Co., 58 W. Va. 276, 52 S. E. 182. 237 Brewer v. Button, 45 W. Va. 106, 30 S. E. 81, 72 Am. St. Rep. 804. 238 1 Bart., Ch. Pr. (2d Ed.), 659, citing Daniel on Attachments, § 242. "If after the garnishee has been summoned in the attachment he should be sued by the defendant be- fore judgment has been rendered, it has been held that the garnishee may plead the attachment in abate- ment; and while this view has been largely approved by decided cases and the te,\t-writers, it has also been held that the pendency of the attachment is only good ground for it continuance while the suit is pending." 1 Bart., Ch. Pr. {2nd Ed.), 659. 1073 Attachments § 835 equity, that at or after the service of the attachment he was indebted to the defendant against whom the claim is, or had in his possession or control, any goods, chattels, money, securities or other effects belonging to the said defendant, the court may order him to pay the amount so due by him, and to deliver such effects to such person as it may appoint as receiver; or such garnishee, with leave of the court, may give bond, with sufficient security, payable to such person and in such penalty as the court may prescribe, with condition to pay the amount due by him and have such effects forthcoming at such time and place as the court may thereafter require." ^'^ And the laws of Virginia also declare that the judgment debtor, "if a householder or head of a family, may claim that the amount so found owing from the garnishee shall be exempt from the payment of the debt to the judgment creditor; and if it shall appear that the said judgment debtor has not set apart and held as exempt in other estate the amount of exemption to which he is entitled, then the court shall render a judgment against the garnishee only for the excess, if any, beyond the exemption to which the judgment debtor is entitled. ' ' ^^^ § 835. As to the answer of the garnishee. In equity, the garnishee in his answer to the bill, to which he is always made a party, discloses the debts due by him to, or effects in his hands of, the defendant in the attachment suit.^" "If the garnishee fails to appear the bill may be taken for confessed as to him, and the cause set for hearing, or an answer may be compelled by attachment, or by an order for him to be brought in to answer interrogatories." ^''^ It is said 2-JoW. Va. Code, 1913, e. 106, citing 1 Bart., Ch. Pr., 581 [621]. § 14; Va. Code, 1004, §25)76. Also see, 1 Bart, Ch. Pr. (2d Ed.), 2-toVa. Code, 1904, §2076. 648; ante, §620, note 100. 241 W. Va. Code, 1013, c. 106, If tlie oarnisUee, after being prop- §14; Va. Code, 1004, §2076; Hogg, crly summoned, fail to appear in Eq. Princp., §42; 1 Bart., Ch. Pr. an attachment at law, "the court "2d Ed.) 621. ™3,y either compel him to appear -42 Hogg, Eq. Princp., § 42, p. 72, or hear proof of any debt due by § 836 Equity Procedure 1074 that the answer of the garnishee should be made in person and be duly sworn to, and if by a corporation, that it must be signed by a proper officer, under the corporate seal, and sworn to by him;^^^ but in West Virginia, the answer need not be under oath unless the bill is sworn to.^^'' In Virginia, the an- swer must be under oath unless waived by the plaintiif.-'^ § 836. The answer of the garnishee further considered. The answer should state the nature and extent of the gar- nishee's liability, if any, to the principal defendant, by clear and unequivocal allegations.^^^ "A proceeding in garnishment be- ing in the nature of a suit by the defendant against his debtor [the garnishee], the latter must, in self-protection, set up all the defenses which he may have against the demand of the principal defendant ; and he should state every fact within his knowledge which has destroyed the relationship of debtor and creditor that previously existed between them. He should make every de- fense against the plaintiff which he could make against the him to, or effects in his hands of, ^Yhen a corporation is proceeded the defendant in such attachment, against as a corporation, its answer and make such orders in relation is to be received in the only mode thereto as if what is SO proved had in which a corporation can answer, appeared in his examination." W. under its corporate seal. B. & 0. Va. Code, 1013, c. 106, §15; Va. R. E. Co. v. Gallahue, 12 Gratt. Code, 1904, §2977. (Va.) 655. 2^3 2 Sliinn, Attachm., §618, cit- "\Yhen a copartnership firm is ing Planters', etc.. Bank v. Leavens, made a garnishee the answer of 4 Ala. 753; Burrus v. Moore, 63 Ga. such firm need not be signed and 405; Chicago, Eock Island, etc., Ey. sworn to by each member thereof. Co. V. Mason, 11 111. App. 525; If the firm only is summoned, the Oliver v. Chicago, etc., R. R. Co., 17 firm only is bound to answer. The 111. 587; St. Louis Per. Ins. Co. v. sworn answer of one member will Cohen, 9 Mo. 421; Callahan v. Hal- bind all, on the principle of the lowell, 2 Bay (S. Car.) 8; Smith general agency of each individual V. Posey, 2 Hill L. (S. Car.) 471; partner to act for all. If the sepa- Pickler v. Eainey, 4 Heisk. (Tenn.) rate answer of each is desired, then 335; Baltimore & Ohio R. R. Co. v. the writ must be directed to each Gallahue, 12 Gratt. (Va.) 655. and properly served upon each and 244 Ante, § 434. all." 2 Shinn, Attachm., § 618. iio Ante, § 434. As to the answer 240 2 Shinn, Attachm., § 622. of a corporation, vide ante, § 435. 1075 Attachments § 837 creditor [the defendant] if lie were the plaintiff; for if the garnishee, in his answer, fails to disclose any fact which, if dis- closed, would have prevented a judgment against him, he can not thereafter set up the judgment in garnishment in bar of an- other recovery on the same demand by the defendant. "^^^ The answer should make a full disclosure as to all the debts owing, or effects belonging, to the principal defendant at the time of the service of the garnishment, and in West Virginia, down to the very time of filing the answer.^** § 837. Nature of debt against garnishee to authorize a decree against him. The demand of the plaintiff's debtor against the garnishee, in order to sustain the garnishment and authorize a decree against the latter, must be (1) a legal indebtedness in a certain sum of money, or (2) the garnishee must have actual possession of the personal property of the debtor susceptible of being seized on execution.^'" The debt must be one arising upon contract, 2*T Idem, citing Terre Haute, etc., "Tlie indebtedness must exist or E. R. Co. V. Baker, 122 Ind. 433, tlie personal property be within the 24 N. E. 83; Varian v. New Eng- state. It is a fundamental prin- land Mut. Ace. Assn., 156 Mass. 1, ciple of the law of attachment that 30 N. E. 368; Gates v. Tusten, 89 the property must be within the Mo. 13, 14 S. W. 827; Eussell v. jurisdiction of the court; therefore Hinton, 1 Murph. (5 N. Car.) 468; unless the effects are within the Bank of Northern Liberties v. Mun- state, or the debt is due to the prin- ford, 3 Grant (Pa.) 232; Conner v. cipal defendant from the contem- Allen, 3 Head. (Tenn.) 418; Streiss- plated garnishee in the state, the guth V. Eeigelman, 75 Wis. 212, 43 debt or chattels can not be made N. W. 1116. susceptible to a proceeding in gar- 248 Eingold V. Suiter, 35 W. Va. nishment." Idem. 186, 13 S. E. 46. However, the West Virginia court "If, when made, a. garnishee's an- lias reached a different conclusion, swer correctly states the liability "Railroad corporations, chartered sought to be imposed, it is suffi- by other states, but owning and eient, although subsequent changes operating railroads in this state, m the liability may afford good have the status of residents of this grounds to require him to answer state, although they are not citi- over." Lacy v. Greenlee, 75 W. Va. zens of it, within the meaning of -517, 84 S. E. 921. clause 1 of section 2, Art. Ill, and 249 2 Shinn, Attachm., § 476. clause 1 of section 2, Art. IV, of § 838 Equity Procedure 1076 express or implied,--'" and upon which the action of debt or indeititatiis assumpsit may be maintained ; ^^^ and not a claim founded on tort or unliquidated damages, which has not been reduced to judgment, although such damages may arise out of a breach of contract ;2^2 and it must not be merely an equitable elaim.^" But if the indebtedness of the garnishee to a defend- ant be such that the defendant could not be sued without first making a demand upon him, yet, though no such demand has been made upon him, he may nevertheless be summoned as a garnishee, and a judgment may be obtained against him as such.^^* §838. When garnishee may object to irregularities in the attachment proceeding. If there be irregularities, either in the attachment or garnish- ment proceedings, they must be objected to in the court below; so that if the garnishee appear and answer, or make defense to the cause, without objecting to such irregularities, it will be too late to do so in the appellate court.^" the Constitution of the United 3 L. R. A. (X.S.) 608, 112 Am. St. States, nor domiciled in this state Rep. 075. in the technical sense of that term. 2^02 Shinn, Attachm., §482, eit- "Such corporations may be pro- ing many cases, ceeded against as garnishees, with- 251 Idem, § 483. out reference to the jurisdiction in ==2 Idem. which debts due from tliera were -".js Swann v. Summers, 19 W. Va. contracted or are payable. 115. "For the purpose of garnishment, 2^4 Webster Wagon Co. v. Home a debt is annexed to the person of Insurance Co., 27 W. Va. 314, 334, the debtor and subject to garnish- 33.5. ment wherever he is found, unless 25s Pulliam v. Aler, 15 Gratt. expressly made payable elsewhere. (Va.) 54; Joseph v. Pyle, 2 W. Va. "A debt may be attached by gar- 4.51. nishment at the place of residence Of course, the rule stated in the of the debtor, although it be ex- text is intended to cover mere ir- pressly made payable elsewhere.'' regularities, and would not extend Baltimore & Ohio Railroad Co. v. to jurisdictional matters in a gar- Allen, 58 W. Va. 388, 52 S. B. 465, nishment proceeding any more than in any other proceeding. 1077 Attachments § 840 §839. Can be no decree against garnishee until plaintiff has established his claim against the debtor. As the sole object of garnishment is to reach the effects or credits in the possession of, ot- owing by, the garnishee to the principal defendant so as thus to subject them to the payment of such judgment or decree as the plaintiff may recover against such defendant, it necessarily follows that there can be no judg- ment or decree against the garnishee until the plaintiff has obtained a judgment or decree against the principal defend- arlt.^^^ And the decree must be a final one. If appealed from by the defendant there can be no judgment or decree against the garnishee while the appeal is pending ; ^^^ and if the judg- ment against the principal defendant be reversed, that against the garnishee must fall with it, and be likewise reversed. ^^* § 840. As to the priority of liens in attachment proceedings. The attachment first served on the same personal property, or on the person having such property in his possession, has priority of lien as between attaching creditors ; ^^' and when the property attached is real estate, also as against a purchaser without notice, if properly recorded, but otherwise if not so re- 256 Withers v. Fuller, 30 Gratt. by attachment certain property or (Va.) 547, 5.50, 551; 2 Shinn, At- credits of the debtor to the payment tachm., § 681. of such debt. The first inquiry in 257 Withers v. Fuller, 30 Gratt. such case always is, whether there (Va.) 547; Drake, Attachm. (6th be in fact any such debt, and what Ed.), §460. is its amount; and that inquiry ia 258 Drake, Attachm., § 460, cit- governed by the same principles as ing Eowlett v. Lane, 43 Texas 274; if the sviit was an ordinary one by Eailroad v. Todd, 11 Heiskell a creditor against a debtor." (Tenn.) 549. 2so w. Va. Code, 1913, c. 106, In the case of Withers v. Fuller, §24; Va. Code, 1904, §2971; 1 30 Gratt. (Va.) 547, Christian, J., Bart., Gh. Pr. (2d Ed.), 653; Er- in speaking of attachments, in the skine v. Staley, 12 iLeigh (Va.) course of his opinion, says: "Their 406; Caperton v. McCorkle, 5 Gratt. general and almost universal na- (Va.) 177; Bank v. Day, 6 Gratt. ture is twofold — first, to obtain a (Va.)360; Moore v. Holt, 10 Gratt. judgment by a. creditor against a (Va.) 284; Trimble v. Covington debtor for the amount of the debt Grocery Co., 112 Va. 826, 72 S. E. claimed; and, secondly, to subject 724. § 841 Equity Procedure 1078 corded.^*" As between the attaching creditor and other cred- itors of the debtor with reference to the property attached, the matter of priority is determined by the date of the creation of the several liens."''^ An attachment lien on personalty, except negotiable instruments,^"^ overrides the claim of a subsequent bona fide purchaser and assignee for value and without notice of the lien of the attachment.^'' As a creditor can not, by attach- ment, acquire any higher or better right in the property attached than the debtor himself had at the time of the levy of the at- tachment, unless he can show fraud or collusion ,to his detri- ment, it necessarily follows that the lien of the attachment is subject to all previous liens of iona fide creditors.^^* § 841. The decree against the garnishee. If it properly appears to the court that at or after ^^^ the service of the attachment the garnishee was indebted to the prin- cipal defendant in the cause, and a decree has been rendered against the latter in a case in which it is proper to render a per- 260 w. Va. Code, 1913, c. 139, Crane v. Standard Lumber & JIfg. § 13; Va. Code, 1904, § 3566; Cam- Co., 77 W. Va. 617, 87 S. E. 1018. mack V. Soran, 30 Gratt. (Va.) "Where the property so claimed 292; Eicheson v. Eicheson, 2 Gratt. and levied on consists of negotiable (Va.) 497; Breeden v. Pleale, 106 notes endorsed by the payees in Va. 39, 55 S. E. 2. blank and delivered to such debtor, 261 Charron v. Boswell, 18 Gratt. their agent, solely for collection or (Va.) 216; Puryear v. Taylor, 12 discount on their behalf, the attach- Gratt. (Va.) 401. ment creditor, by levy on the in- 262 Howe V. Ould, 28 Gratt. (Va.) struments as the property of the 1. ' agent, although without notice or 263 C. & 0. E. E. Co. V. Paine, knowledge of his want of title, does 29 Gratt. (Va.) 502; Eailroad Co. not acquire the rights or position V. Griffiths, 76 Va. 913; Sandidge of a hona fide purchaser for value V. Graves, 1 Pat. & H. (Va. ) 101; nor any lien on the choses in ac- 1 Shinn, Attachm., § 319. tion." Howell v. ilcCarty, 77 W. 264 First Nat. Bank v. Harkness, Va. 695, 88 S. E. 181. 42 W. Va. 156, 24 S. E. 549, 32 L. 205 in Virginia, as we have seen, R. A. 408; 1 Shinn, Attachm., the judgment or decree in garnish- § 318 ; Seward & Co. v. Miller & ment is based upon the garnishee's Higdon, 106 Va. 309, 55 8. E. 681; liability at the time he is served with process to answer. Ante, § 836. 1079 Attachments §842 eonal deeree,^^^ a personal decree may be rendered against the garnishee for the amount found due from him to the principal defendant,^" to the extent of the decree against the latter, if the indebtedness of the garnishee amounts to that much.^** § 842. Sale of attached realty. "In decreeing a sale of real estate to satisfy the lien of an attachment thereon, the debtor should be given a reasonable time within which to redeem by paying the amount decreed against him. Where, however, a decree is entered without giv- ing such time to redeem, and the debtor in the court below did not ask that he be allowed such time, and it fairly appears that if it had been asked it would have been allowed him, the de- cree will be corrected in this court without costs to the appel- ant. "2''» 266 2 Shinn, Attaclim., §693; Jo- seph V. Pyle, 2 W. Va. 449. 267 Joseph V. Pyle, 2 W. Va. 449. 268 2 Shinn, Attachm., §692. "Whatever judgment is rendered against the garnishee, it must be sufficient to afford him available evidence in any suit thereafter brought against him on the same demand. In some states it has been deemed necessary that the entry of judgment recite that such demand shall operate, when paid, as a satis- faction of so much of the debt due from the garnishee to the defend- ant. But in general it will be suf- ficient if it be separate from the judgment in the principal action, and show that the court had juris- diction, by a recital of the neces- sary prior proceedings, and that judgment has been rendered in fa- vor of the plaintiff against the prin- cipal defendant. The legal effect of such judgment being to satisfy to the extent thereof the indebtedness between the garnishee and the prin- cipal defendant, the judgment against the garnishee need not in general specifically express sucli satisfaction." 2 Shinn, Attachm., §691. A personal decree against the garnishee is essential, if it is de- sired to expand his liability beyond the property or money of the de- fendant in his hands. Crane v. Standard Lumber & Mfg. Co., 77 W. Va. 617, 87 S. E. 1018. 269 Benedetto v. Di Bacco, 83 W. Va. 6.20, 99 S. E. 170. "The appellants complain of the action of the court in decreeing a sale of their real estate in satisfac- tion of the decree without giving them a day to redeem. It has been held in this jurisdiction that in a suit to enforce judgment liens, trust deed liens, or liens by way of mort- gage, it is error to decree a sale of the property without giving the debtor a day within which to re- deem. King v. Burdett, 44 W. Va. 561, 29 S. E. 1010; Rose v. Brown, §842 Equity Procedure 1080 11 W. Va. 122; Eohrer v. Travers, 11 W. Va. 146; Pecks v. Chambers, 8 W. Va. 210. We confess we can see no very substantial reason for this holding. It is, perhaps, be- cause the pendency of suits affect- ing the debtor's property, and the uncertainty of the amount of the liens for which the same may be sold, renders it difficult for the debtor to secure the funds neces- sary to relieve it from the liens, and the law in its tenderness to embarrassed debtors has seen fit to reasonably extend this time beyond that at which the aanount is defi- nitely determined. This is the only ground upon which the doctrine can be based, and there is, of course, as much reason for applying it to a sale of real estate in a decree to enforce an attachment lien as to enforce any other sort of lien. We are therefore of opinion that the court should have given to the Di Baceos a reasonable time within which to pay off the decree against them before their property would be advertised for sale. It does not appear, however, that this was asked. In fact, it is fairly deducible from the record that if it had been requested it would have been al- lowed by the court below. This be- ing so, we will correct the decree in this regard, but will not award costs to the appellants in accord- ance with the doctrine announced in the case of Freeman v. Swiger, 98 S. E. 440, decided at this term of this court, and authorities there cited." Idem. "w. •_ ■ i ■;i;.v..'' t ;'v i: i!^ ^ .'*„.«»;*' -Vv*-*. -DISS'S A > rf- " t: .V '^^ ?-/i vi««> J fWW^,* SL -t "* »t -V LN^N .^'< *:'-Sf^^sr^ I ^ ^v£^-