interlocutory decree confirming such report shall | ously not well taken is not an error for which the be modified or wholly set aside or not, is generally appellate court will reverse the decree. Bristol a matter resting in the sound discretion of the Iron, etc., Co. v. Thomas, 93 Va. 396, 25 S. E. Rep. 110; chancellor, to be exercised according to the partic- Harman v. Stearns, 95 Va. 58, 27 S. E. Rep. 601; Va.. ular circumstances of each case. Newberry v. etc., Co. v. Fields, 94 Va. 102, 26 S. E. Rep. 426; Moore Stuart, 86 Va. 965, 11 S. E. Rep. 880; Armstrong v. v. Bruce, 85 Va. 139, 7 S. E. Rep. 195. Pitts, 13 Gratt. 235; Wooding v. Bradley, 76 Va. 614; Nelson v. Kownslar, 79 Va. 468.

2. Form of Exception.-An exception to a commissioner's report should point out clearly the errors for which the exception is taken. Otherwise the appellate court will presume the report to have been correctly made. Coffman v. Sangston, 21 Gratt. 263; Moore v. Bruce, 85 Va. 139, 7 S. E. Rep. 195; Douglas v. Spoor, 89 Va. 279, 15 S. E. Rep. 550; Fairfax v. Muse, 4 Munf. 124: Nickels v. Kane, 82 Va. 309; Crislip v. Cain, 19 W. Va. 438: Chapman v. McMillan, 27 W. Va. 220; Anderson v. Caraway, 27 W. Va. 385; Kester v. Lyon, 40 W. Va. 161, 20 S. E. Rep. 933; Hartley v. Roffe. 12 W. Va. 401: Green v. Thompson, 84 Va. 376, 5 S. E. Rep. 507.

The commissioner for settling the accounts of the parties, says in his report,-"The complainants will hereafter render an account of a remnant of the There are excepbusiness still left in their hands." tions by both parties to the accounts as stated; but the court overrules them all, confirms the report. and makes a final decree in favor of the defendant. It being not probable that the further account referred to by the commissioner, will lessen the amount due the defendant, if there be no other error, the appellate court may amend the decree by providing for the further account, and affirm it. Graham v. Pierce, 19 Gratt. 28.

VI. WEIGHT OF REPORT.

A. Ex Parte Accounts.-The idea that the ex parte accounts can, in any case, have anything to do with the operation of the statute of limitations is founded upon a total misapprehension. These

3. Nature of Exception.-Generally, exceptions to the report of master commissioners partake of the nature of special demurrers, and, if the report is erroneous, the party complaining of the report or excepting thereto must point out the errors in his settlements have no sort of analogy to stated acexceptions with reasonable certainty, so as to direct the mind of the court to them. When he does so, the parts not excepted to are admitted to be correct, not only as regards the principles, but also as relates to the evidence, on which they are founded. Stewart v. Stewart, 40 W. Va. 65, 20 S. E. Rep. 862; Kester v. Lyon, 40 W. Va. 161, 20 S. E. Rep. 933; Crislip v. Cain. 19 W. Va. 438; McCarty v. Chalfant, 14 W. Va. 531; Chapman v. P. & S. R. Co., 18 W. Va. 184: Chapman v. McMillan, 27 W. Va. 220; Robinett v. Robinett (Va.), 19 S. E. Rep. 845.

A report of a commissioner, unless excepted to in time, will be presumed to be correct, not only as to the principles of the account, but as to the evidence also. Keck v. Allender, 37 W. Va. 201, 16 S. E. Rep. 520; Stewart v. Stewart, 40 W. Va. 65, 20 S. E. Rep. 862; Kester v. Lyon, 40 W. Va. 161, 20 S. E. Rep. 933; Ward v. Ward, 40 W. Va. 611, 21 S. E. Rep. 747; B. & O. R. Co. v. Vanderwerker, 44 W. Va. 229, 28 S. E. Rep. 829.

4. Waiver of Exception.-Where a party files exceptions to a commissioner's report within the 10 days which the same is required by statute to be held by the commissioners before filing, and asks leave to file other exceptions during the term before the submission of the cause, and does so file such other exceptions, he must be held to have waived his right to except because the report was not held full 10 days before filing. Smith v. Brown, 44 W. Va. 342, 30 S. E. Rep. 160; Mann v. Peck, 45 W. Va. 18, 30 S. E. Rep. 206.

One defendant, F., files an exception to the commissioner's report: which is relied on by R., another defendant; but at the hearing in the court below, this exception is waived. The exception having been waived, R. cannot rely upon it in the appellate court. Robertson v. Trigg, 32 Gratt. 76.

An administrator having waived his exceptions to the commissioner's report, under the erroneous impression that the report would be sustained, and the case then finally disposed of, may withdraw his waiver, and renew his exceptions. Hannah v. Boyd. 25 Gratt. 692.

5. Exception-Immaterial Error. The failure of the lower court to pass upon exceptions to the report of a commissioner when such exceptions are obvi

counts between individuals. Whatever efficacy they may have as evidence rests solely upon the long established practice and usage of the country and upon the supposed integrity of the tribunal appointed by law for the adjustment of such matters; whereas a stated account is founded upon a supposed adjustment between the parties themselves. Leake v. Leake, 75 Va. 803.

The rule, that administration accounts, audited ex parte by commissioners appointed by the proper court, returned to the court, and recorded, are to be

taken as prima facie correct, liable to be surcharged and falsified, upon proof adduced, by any party interested, rests not on the ground that such audited accounts stand on the same footing as stated accounts between parties, but, mainly, on the long established practice of the country, and on the supposed integrity of the tribunal provided by law for the adjustment thereof. Newton v. Poole, 12 Leigh 112; Carter v. Edmonds, 80 Va. 58; Leake v. Leake. 75 Va. 792: Green v. Thompson, 84 Va. 392, 5 S. E. Rep.

507; Radford v. Fowlkes, 85 Va. 841, 8 S. E. Rep. 817: Peale v. Hickle, 9 Gratt. 445; Chapman v. Shepherd. 24 Gratt. 389; Wyllie v. Venable, 4 Munf. 370: Shipman v. Fletcher, 91 Va. 478, 22 S. E. Rep. 458; Leach v. Buckner, 19 W. Va. 45; Shugart v. Thompson, 10 Leigh 434; Anderson v. Fox, 2 H. & M. 260; Preston v. Gressom, 4 Munf. 110; Wimbish v. Rawlins, 76 Va. 48; Holt v. Taylor, 43 W. Va. 153, 27 S. E. Rep. 321; Hurt v, West, 87 Va. 78, 12 S. E. Rep. 141; Blackwell v. Bragg, 78 Va. 529; Atwell v. Milton, 4 H. & M. 253; Corbin v. Mills, 16 Gratt. 438, and foot-note.

The settlement of an administration account under an ex parte order of the court which granted administration, is prima facie evidence in favor of the administrator against creditors of decedent. Shearman v. Christian, 9 Leigh 571.

Where, in an ex parte settlement by commissioners. of an executor's accounts, the commissioners improperly omit to state an interest account, and charge the executor with interest, that is cause for surcharging and falsifying the account. Burwell v. Anderson, 3 Leigh 376 [348]; Anderson v. Burwell, 6 Gratt. 405.

B. Question of Fact-Weight of Report.

1. Old Rule. When a question of fact is referred

such findings are erroneous, though such report is not entitled to as much weight as the verdict of a jury. Holt v. Taylor, 43 W. Va. 153, 27 S. E. Rep. 320. A special commissioner appointed by the court with consent of the parties is not an arbitrator, but his report is subject to review by the court as in the case of a general commission. Crislip v. Cain, 19 W. Va. 438.

to a commissioner, depending upon the testimony from the evidence before the commissioner that of witnesses, conflicting in their statements and differing in their recollection, the court must of necessity adopt his report, unless in a case of palpable error or mistake. Bowers v. Bowers, 29 Gratt. 697; Porter v. Young, 85 Va. 49, 6 S. E. Rep. 618; Stimpson v. Bishop, 82 Va. 190; Magarity v. Shipman, 82 Va. 784; Robinson v. Allen, 85 Va. 721, 8 S. E. Rep. 835; Magarity v. Succop, 90 Va. 563, 19 S. E. Rep. 260; Jones v. Degge, 84 Va. 690, 5 S. E. Rep. 799; Moore v. Butler, 90 Va. 685, 19 S. E. Rep. 850; Armentrout v. Shafer, 89 Va. 569, 16 S. E. Rep. 726; Clinch River Min. Co. v. Harrison, 91 Va. 132, 21 S. E. Rep. 660; Porter v. Christian, 88 Va. 730, 14 S. E. Rep. 183; Bowden v. Parrish, 86 Va. 67, 9 S. E. Rep. 616; Gay v. Lockridge, 43 W. Va. 267, 27 S. E. Rep. 306; Stuart v. Hendricks, 80 Va. 601; Douglas v. Spoor, 89 Va. 279, 15 S. E. Rep. 550; Boyd v. Gunnison, 14 W. Va. 1; Graham v. Graham, 21 W. Va. 702; Handy v. Scott, 26 W. Va. 710; Reger v. O'Neal, 33 W. Va. 159, 10 S. E. Rep. 375.

Where questions purely of fact are referred to a commissioner to be reported on, his findings will be given great weight, and should be sustained unless it plainly appears that they are not warranted by any reasonable view of the evidence; and this rule operates with peculiar force in the appellate court, when the findings of the commissioner have been approved and sustained by the decree of the inferior court. Fry v. Feamster, 36 W. Va. 454, 15 S. E. Rep. 253; Reger v. O'Neal, 33 W. Va. 159, 10 S. E. Rep. 375; Broderick v. Broderick, 28 W. Va. 378; Moore v. Ligon, 30 W. Va. 146, 3 S. E. Rep. 572; Handy v. Scott, 26 W. Va. 710.

Where questions purely of fact are referred to a commissioner, his finding will be given great weight, though not as conclusive as the verdict of a jury, and should be sustained, unless it is contrary to law, or not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, when the findings of a commissioner have been approved by the court below. Hall v. Hall, 30 W. Va. 779, 5 S. E. Rep. 260; Hulings v. Hulings, 38 W. Va. 351, 18 S. E. Rep. 627.

2. Modification of Rule in West Virginia.-It is a settled rule of law that when questions of fact are submitted to a commissioner, his findings upon such facts should be sustained unless the court is satisfied from the evidence that such findings are erroneous. Graham v. Graham, 21 W. Va. 702; Boyd & Co. v. Gunnison & Co., 14 W. Va. 1; McGuire v. Wright, 18

W. Va. 507.

Every presumption is in favor of the correctness of the decision of a master, and it is not usual, to reject his findings, unless, upon examination, such findings are found to be unsupported or defective in some essential particular. Hartman v. Evans, 38 W. Va. 669, 18 S. E. Rep. 813.

When questions purely of fact are referred to a commissioner to be reported upon, the findings of the commissioner, while not as conclusive as the verdict of a jury, will be given great weight, and should be sustained unless it plainly appears that they are not warranted by the evidence. This rule operates with peculiar force in an appellate court, where the findings of the commissioner have been approved and sustained by the decree of the inferior court. Stewart v. Stewart, 40 W. Va. 65, 20 S. E. Rep. 869.

Where questions of fact are submitted to a commissioner in chancery, his findings of such facts should be sustained, unless the court is satisfied

3. Modification of Rule in Virginia. -The court of equity cannot abdicate its authority or powers, nor confide or surrender absolutely to any one the performance of any of its judicial functions. It may rightfully avail itself of the assistance of commissioners in the proper preparation for judicial determination of the many complicated matters upon which its judgment is invoked, but in it resides the authority, and to it solely belongs the responsibility, to adjudicate them. The work of its commissioners is subject to its review and the court is in no wise precluded from making such review by the findings or conclusions of the commissioner. There is no propriety, therefore, in holding that, where the evidence is conflicting, the report of a commissioner in chancery is entitled to the same weight and should be given the same effect as the verdict of a jury; for on motion for a new trial, the verdict of a jury would not be set aside merely because the court on consideration of the evidence would have come to a different conclusion. Shipman V. Fletcher, 91 Va. 473, 22 S. E. Rep. 458. When the commissioner has seen and examined the witnesses, and the testimony is conflicting, and his conclusions are clearly supported by competent and unimpeached witnesses, the court will not set aside or disturb his report, unless the weight of the testimony which is contrary to his conclusions is such, on account of the number of the witnesses and nature of the evidence, as to make it clear that the commissioner has erred; and this rule applies a fortiori in the appellate court when the report of the commissioner has been confirmed in the lower court. Shipman v. Fletcher, 91 Va. 473, 22 S. E. Rep. 458; Douglas v. Spoor, 89 Va. 279, 15 S. E. Rep. 550; Smith v. Smith, 92 Va. 700, 24 S. E. Rep. 280. The rule as laid down in these cases considerably modifies the rule stated in the case of Bowers v. Bowers, 29 Gratt. 697, and followed by a long line of decisions.

C. Weight of Report in Appellate Court.-In considering a commissioner's report the appellate court will presume it to have been correctly made and upon the proper authority unless the contrary shall appear. Coffman v. Sangston, 21 Gratt. 263; Wills v. Dunn, 5 Gratt. 384; Simmons v. Simmons, 33 Gratt. 451; McCandlish v. Edloe, 3 Gratt. 330; Strange v. Strange, 76 Va. 240: Alderson v. Henderson, 5 W. Va. 182; Reitz v. Bennett, 6 W. Va. 417; Conrad v. Buck, 21 W. Va. 396; Steptoe v. Read. 19 Gratt. 1; Sims v. Tyrer, 96 Va. 5, 26 S. E. Rep. 508; Triplett v. Woodward, 98 Va. 187, 35 S. E. Rep. 455.

When the testimony is voluminous, and the accounts in great confusion, and the report confirmed by the lower court, the appellate court will not interfere unless in case of palpable error. Stuart v. Hendricks, 80 Va. 601; Stimpson v. Bishop, 82 Va. 204.

VII. RECOMMITMENT.

A report made while a cause stood dismissed, and before it was reinstated, will be recommitted. Williamson v. Childress, 4 H. & M. 449.

A. Unauthorized Report.-A commissioner must

not go beyond the matter referred to him, and if he does so his report so far as refers to that matter is a nullity. It has been decided that in such a case the proper course is not to except to the master's report, but, before it is confirmed, to apply to the court that it may be referred back to the commissioner to review his report, but that, if no such application is made, and the report should be affirmed, the court | evidence it should recommit the report, with will pay no attention to it, except so far as it is warranted by the decree. Ware v. Starkey, 80 Va. White v. Drew, 9 W. Va. 695.

probable, from the evidence in support of the motion, that he is entitled to such credits. Snickers v. Dorsey, 2 Munf. 505; Grantham v. Lucas, 24 W. Va. 233.

E. Motion to Recommit-Appeal.

Creditor's Bill-Statute of Limitations-West Virginia.-A bill filed by a single creditor to enforce the payment of his debt against the administrator and heirs of a decedent, although not in form a creditor's bill, will become such from the time the court makes an order referring the cause to a commissioner to take an account of the debts of the decedent and the statute of limitations will cease to run against any creditors of the decedent, whether he is a formal party to the suit or not, from the date of such order of reference. Laidley v. Kline, 23 W. Va.

Recommission-Appeal-Procedure.-An appeal by one party from a decree overruling some exceptions to commissioner's report, and sustaining others, and recommitting the report, brings up the whole cause; and the decree of the court of appeals affirming the decree of the court below, concludes all questions previously decided, whether in favor of the appel-570; Woodyard v. Polsley, 14 W. Va. 211. lants or appellees. Burton v. Brown, 22 Gratt. 15. Order of Recommission-Appeal.-A decree which sustains certain exceptions to a commissioner's report, and recommits the cause to the same or another commissioner, is not an appealable decree because it does not settle all the principles of the cause. Hill v. Als, 27 W. Va. 215; Laidley v. Kline, 21 W. Va. 21; Hooper v. Hooper, 29 W. Va. 276, 1 S. E. Rep. 280.

VIII. IN GENERAL.

Creditor-Sale of Land-Petition.-Heirs residing out of the state, having instituted a suit for a sale of land descended to them, and the same having been sold, and the proceeds being in the hands of a commissioner directed by the court to collect them; a creditor of the ancestor seeking to subject these proceeds to the payment of his debt, should apply by petition to the court to be made a party in the cause, and to have the fund applied by proceedings in that cause to the payment of his debt. Carrington v. Didier, 8 Gratt. 260.

Commissioner Notes-Taxation.-Notes in the possession of a commissioner, which were executed for the purchase price of property sold under a decree of court are not subject to taxation and should not be listed under Act of March 4, 1896 (Acts 1895-6, ch. 705, p. 773). Fulkerson v. Treasurer of Bristol, 95 Va. 1, 27 S. E. Rep. 815.

Creditor's Bill-Statute of Limitations-Virginia.-It is sometimes broadly stated that the order for an account of liens suspends the running of the statute against all lien creditors. But no authority is cited, and in our investigation we have found no case which holds that the order for an account will prevent the running of the statute against the demand of a creditor who did not assert his demand in the suit. On the contrary, the authorities show that the rule only applies to such creditors as come in under the decree, or otherwise become parties to the suit, and that as to all others the statute continues to run. Callaway v. Webster, 7 Va. Law Reg 40 (May, 1901). Statute of Limitations - Equity. - Though the statute of limitations does not usually bar a suit in equity for an account, yet a great lapse of time showing laches on the part of the plaintiff may prevent a recovery at the bar of that tribunal. Carr v. Chapman, 5 Leigh 176 [164]; Harrison v. Gibson, 23 Gratt. 212, and note; Foster v. Rison, 17 Gratt. 321; Caruthers v. Trustees of Lexington, 12 Leigh 635 [618]; Green v. Thompson, 84 Va. 396, 5 S.E. Rep. 507; Castleman v. Dorsey, 78 Va. 349; Hatcher v. Hall, 77 Va. 573; Morrison v. Householder, 79 Va. 627; Coles v. Ballard, 78 Va. 149; Perkins v. Lane, 82 Va. 62; Gibboney v. Kent, 82 Va. 388; Turner v. Dillard, 82 Va. 539; Chapman v. Persinger, 87 Va. 586, 13 S. E. Rep. 549; Shugart v. Thompson, 10 Leigh 434. See Va. Code 1887, §§ 3603-3606; W. Va. Code 1899, ch. 141, pp. 941-942; Lewis v. Rosler, 19 W. Va. 61. See monographic note on "Depositions" appended to Field v. Brown, 24 Gratt. 74. See monographic note on "Issue Out of Chancery" appended to Lavell v. Gold, 25 Gratt. 473, and on "Bills of Exception" appended to Stoneman v. Com., 25 Gratt. 887.

Commissioner's Liability - Confederate Money. - A commissioner who, under the direction of the court, collects and disburses confederate money, and, by order of the court, retains the balance, which is in controversy between disputing lien holders, until the rights of the parties are litigated, cannot be held personally liable for any loss that may be incurred in consequence of the fund perishing on his hands, by the result of the late civil war. Davis v. Harman, 21 Gratt. 194; Myers v. Zetelle, 21 Gratt. 760: Reynolds v. Pettyjohn, 79 Va. 331; Williams v. 383 Skinker, 25 Gratt. 521; Vaiden v. Stubblefield, 28 Gratt. 153, 162; McVeigh v. Bank, 26 Gratt. 201; Mead v. Jones, 24 Gratt. 358; Barton v. Ridgeway, 92 Va. 171, 23 S. E. Rep. 226; Fugate v. Honaker, 22 Gratt. 413; Hale v. Wall, 22 Gratt. 435; Cooper v. Cooper, 77. Va. 204: Parsley v. Martin, 77 Va. 383; Cogbill v. Boyd, 77 Va. 459.

Settlement of Accounts-Presence of Legatees.-Executor's accounts are audited before commissioners of the county court, the legatees being present at such settlement thereof; these accounts are returned to the court, approved and recorded. Held, the presence of the legatees at the settlement, is no objection to a bill in chancery to surcharge and falsify the accounts so settled. Garrett v. Carr, 3 Leigh 407; Garrett v. Carr, 1 Rob. 196. See monographic note on "Interest" appended to Fred v. Dixon. 27 Gratt. 541: Anderson v. Thompson, 11 Leigh 458: Strother v. Hull, 23 Gratt. 663. See monographic note on "Estoppel" appended to Bower v. McCormick, 23 Gratt. 310.

*Ould & Carrington v. Myers & als. Myers v. Ould & Carrington & als.

March Term, 1873, Richmond.

Contract for Work-Payable in Notes-Conditions.M. employs S. to build a house, and he is to pay for it in ten notes of $5,000 each, payable at different periods, to be delivered by M to S when R shall say he is entitled to them. One note to be first delivered, then two at the same time, when the work has advanced to a certain stage, &c. If S should fail to carry on the work to completion, any notes not delivered should be forfeited to M. The first note is properly issued. Before S is entitled to receive the next two, M, at the request of S, delivered him one of them; S having done more work than the amount of that note; and S soon after receiving the last note, abandons the work. HELD:

1. Same Same -- Accommodation Notes. Though the note was given by M to S for his accommo-"

dation, before he was bound to deliver it, yet it | said house to be fully completed and finished is not an accommodation note in the legal sense, but is upon a valuable consideration; and M has no equity on this ground, either against S or the holder of the note for value, to have the note delivered up to him.

and the key to be given by said Strong to Myers, on or before the 1st of August 1866. The contract provided for an alteration of the plan at the instance of Myers, and the mode by which the consequence of such al

2. Bill in Equity-No Damage Alleged-No Relief.-Mterations should be adjusted. And it was not having alleged in his bill damage by the failure of S to complete the work by the time prescribed, he cannot have relief on that ground. 3. Contract-Provision of Forfeiture-Quære. The parties in this case having provided in the con

tract the forfeiture of S for the failure to complete the work, quære if M is entitled to any other

compensation.

2. Equity No Decree in Favor of Plaintiff-Decree be-fied as follows: the note due at the earliest tween Co-Defendants.*-M files his bill against S and his assignee of the second note delivered to S, and attaching creditors of S, who had served their attachments on M, to have the note delivered up to him, upon the ground that it was without consideration, and was procured by misrepresentation and fraudulent assurances; and the court *holding that he has failed to sustain the grounds of relief he states, and that his

384

bill should be dismissed, cannot go on to make a decree in the cause between the assignee and the attaching creditors.

3. Same Same Same.-There cannot be a decree between co-defendants, in a cause where there is no decree in favour of the plaintiff.

agreed that in the payment of the said sum of $50,000, Myers should execute ten negotiable notes of $5,000 each, payable to Strong or his order, respectively on the 1st day of August 1867, 68, 69, 70, 71, 72, 73, 74, 75 and 1876, and each note to bear six per cent. per and Myers was to deliver the said notes to annum interest from the 1st of August 1866; Strong in the manner and at the time speciperiod was first to be delivered to Strong; the note due at the longest period was the second to be delivered; and so on alternately till they were all delivered, in accordance with the conditions after expressed, viz: Myers shall deliver to Strong, the first note whenever in the opinion of Richard Reins of Richmond, he has done sufficient work upon the said building to have earned it; and Reins was thereby appointed by both parties to the agreement, to give the said opinion or decision; when the walls of the first or main story are up, the iron front and joists, &c., complete thereon, ready for the walls of the said notes shall be delivered to the said second story to go up, two others of the Strong; and as each succeeding story is up, and ready for the walls of the story above to be commenced, another of said notes shall be delivered; and in like manner others of them shall be delivered until the fourth or last story is up and the roof on and completed, so that by or at that time the said Strong shall have received six of

385

On the 6th of February 1866 Solomon A. Myers, of the city of Richmond, entered into a contract under seal with Samuel Strong, of Washington city, whereby Strong undertook to build for Myers, on a designated lot in Richmond, a house containing two tenements complete in all its parts, of the best materials, according to a specified plan, for the sum of fifty thousand dollars, *Equity - No Decree in Favor of Plaintiff -Decree Rand. 442. When such a case is made out, "a court between Co-Defendants.-The proposition laid down in the second and third headnotes, that there cannot be a decree between -defendants, in a cause where there is no decree in favor of the plaintiff, seems to be a well established rule of law.

11 Gratt. 446.

of equity is entitled to make a decree between the defendants, and is bound to do so. The defendant chargeable has a right to insist that he shall not be liable to be made a defendant in another suit for the same matter which may be then decided between The principal case was expressly sustained as to him and his co-defendant. And the co-defendant this point in Hansford v. Coal Co., 22 W. Va. 76; Wat- may insist that he shall not be obliged to institute son v. Wigginton, 28 W. Va. 568; Western Lunatic another suit. for a matter which may be then adAsylum v. Miller, 29 W. Va. 332, 1 S. E. Rep. 740; Rad-justed between the defendants." Blair v. Thompson, cliff v. Corrothers, 33 W. Va. 694, 11 S. E. Rep. 232; Kinports v. Rawson, 36 W. Va. 243, 15 S. E. Rep. 68. Indeed, even when there is a decree for the plaintiff, the courts will be very chary of decreeing between co-defendants, and, as time advances, the tendency seems to increase the indisposition to make such decrees because it is not equity to delay the plaintiff his relief while the defendants litigate rights foreign to his claim and immaterial to the point in issue, and for the even stronger reason, that there is often no opportunity for one defendant to state his own case in his answer as against his codefendant. See Glenn v. Clark. 21 Gratt. 39; Hubbard v. Goodwin, 3 Leigh 492; Blair v. Thompson, 11 Gratt. 445.

The general rule is that to decree between defend

ants "the case must be made out by evidence arising from the pleadings and proofs between plaintiffs and defendants." Templeman v. Fauntleroy, 3

But decrees between co-defendants must be distinguished from decrees in favor of the plaintiff against one defendant upon a proper case made against him. For example, "Roberts v. Jordans, 3 Munf. 488, was an injunction to a judgment obtained by the assignee of a bond against the obligor, upon the allegation of payments to the obligee and assignor. This court directed the injunction to be made perpetual as to such sum only as had been paid to the assignor before notice of the assignment; but gave the plaintiff a decree over against the obligee and assignor for any sums received by the latter after notice of the assignment, as soon as the plaintiff should have paid the judgment. This was not a decree between co-defendants, but in

favor of the plaintiff against one of the defendants

had assigned to a third person." Blair v. Thompson, for money improperly received by him on a note he

11 Gratt. 447.