1877.

August Term.

Hale

V.

Oil and (il Laud
Company.

which he relies, he must aver fully and explicitly, the facts constituting the alleged fraud; mere conclusions The West Va. Will not avail: Butler v. Viele, 44 Barb. (N. Y.) 166; Gould's Pl., ch. 3 §2; Hilliard on Remedies for Torts, 2d ed., 257, and authorities there cited; 2d Saunders' Pl. & Ev., page 25, side page 527. It may be remarked that the plea fails to aver that the first bill was not discounted for the benefit of said Carrington, and it is averred, that the second bill was in renewal of the first, but it is not averred, that the said Carrington did not receive the benefit of the proceeds thereof. But on this subject generally, see 2 Rob. Pr. (new) 253, and cases there cited. If the matters set up in said plea were good as pleaded, and were good as defenses to plaintiff's action, the defendant would have no cause of complaint that his plea or pleas were rejected by the court, because he could not be prejudiced thereby, as appears by the record. As we have seen, the defendant pleaded non-assumpsit, on which issue was joined, and this plea was filed when said special plea was tendered and rejected. Said special plea, so far as it contains a defense to the action, in effect only amounts to the general issue. And the matters sought to be set up in said plea as defense, so far as they are good, if sufficiently pleaded could be given in evidence on the plea of non-assumpsit. It is not error to reject a special plea setting up matter in defense to the action, when the plea of non-assumpsit is filed, and the matter of defense of such plea may be given in evidence under the plea of non-assumpsit: Baltimore and Ohio R. R. Co. v. Laffertys, 14 Gratt. 478; Baltimore and Ohio R. R. Co. v. Polly, Woods & Co., 14 Gratt. 454; Fant et al. v. Miller & Mayhew, 17 Gratt. 47; 5 Rob. Pr. (new) 255, and the numerous authorities there cited; 1 Chitty Pl. side page, 477 478; Major's ex'r v. Gibson, 1 Pat., Jr., & H. 76. In 2 Saund. on Pl. and Ev., top page 25 and side page 527, it is said: "where fraud is intended to be set up as a defense, it may be given in evidence under the

1877. August Term.

Hale

V.

The West Va.

Company.

general issue in assumpsit." For the foregoing reasons the circuit court did not err in rejecting said special pleas. The point, stated and made by the defendant's second bill of exceptions, is expressly waived by the defendant Oil and Oil Land in his petition for a supersedeas. I therefore deem it unnecessary to further notice the second bill of exceptions. For the foregoing reasons there is no error in the judgment of the circuit court, of which the plaintiff in error can complain in this Court.

The judgment of the circuit court is therefore affirmed, with costs and damages, according to law, in favor of the defendant in error, against the plaintiff in error.

JUDGMENT AFFIRMED.

Charlestown.

BAKER et al. v. RINEHARD, MAYER & Co. et al.

Decided September 10, 1877.

1. A court of equity ought not to grant an injunction, to stay the sale of personal property, levied on by a sheriff by virtue of an execution, which property is owned by a third party, when the property is not from its nature of peculiar value to the owner, and when its sale will not obviously greatly injure the owner by the consequential damages it would produce. (See Walker v. Hunt, 2 W. Va. 491.

2. Quære-Would the fact that the sale would obviously greatly injure the owner by the consequential damages it would produce, alone justify the granting of an injunction to such sale? 3. If the property is owned by several different parties, not jointly but severally, each owning a separate part of the property by titles derived from different parties, the owners in such case can not unite in a bill to enjoin the sale. Such a bill should be dismissed on demurrer as multifarious.

Appeal from and supersedeas to a decree of the circuit court of Ritchie county, rendered on the 27th day of April 1877, in a cause in chancery, in said court then pending, wherein Tillman H. Baker and others, were plaintiffs, and Rinehard, Mayer & Co., were defendants, granted upon the petition of said plaintiffs.

Hon. James M. Jackson, Judge of the fifth judicial circuit rendered the decree complained of.

The following statement of the case was prepared by GREEN, PRESIDENT, who delivered the opinion of the Court:

Tillman H. Baker, W. S. Baker and A. S. Baker, in

January 1877, filed their bill in the circuit court of Ritchie county, alleging that the defendants Rinehard, Mayer & Co. had issued an execution on a judgment judgment against T. D. Baker and W. B. Baker for $313.16 with interest from October 16, 1876 and $9.70 costs, which was levied on nine head of yearlings, four head of calves, one horse and two hogs, the property of one of the plaintiffs, Tillman H. Baker; and on five head of yearlings, one mare and colt, eleven head of sheep and one calf, the property of another of the plaintiffs, W. S. Baker; and one mare and one cow, the property of the female plaintiff A. S. Baker; that the sheriff, being notified that it was their property, required of the plaintiffs in the execution an indemnifying bond, which was given; and thereupon the sheriff advertised said property for sale.

The bill further alleges, that the return day of the exetion had passed, yet it had not been returned to the office, whence the execution issued, and no venditioni exponas had issued. The plaintiffs assert in general language, that they had no complete and adequate remedy at law; and then in direct contradiction with a charge previously made in the bill, charge that no indemnifying bond had been given by the plaintiff's to the sheriff; and they say in general terms, that if such property is permitted to be sold, they will sustain irreparable injury; and the bill prays, that the plaintiffs in said exetion and the sheriff, who levied it, may be made defendants, and may be enjoined from selling said property; and for general relief. Depositions were taken by the complainants to prove the ownership of the property by them severally, as alleged in the bill; and the defendants demurred to the bill, and filed answers, which were replied to generally. On the 27th day of April 1877 the Court by its decree sustained the demurrer, dissolved the injunction and dismissed the bill, and decreed that the defendants Rinehard, Mayer & Co. recover of the complainants their costs.

1877.

August Term.

Baker et al.

V.

Rinehard,

et al.

R. S. Blair, for appellants:

The following authorities are relied on, to show the Mayer & Co. right to enjoin the sale of personal property under an execution, where the party or parties claim as bona fide owners, and not as incumbrancers merely: Walker v. Hunt, 2 W. Va. 491; McFarland et al v. Dilley et al. 5 W. Va. 136; Lewis v. Spencer, 7 W. Va. 691; Wilson & Trent v. Butler et al., 3 Munf. 564, 565; 2d vol. Tucker's Commentaries 469 (top page); Watson v. Sutherland, 5 Wall. 74; Boyer et al. v. Creigh et al., 3 Rand. 31; Scott et ux. v. Holliday, 5 Munf. 103; Sampson v. Brice, ib. Munf. 175; Crawford v. Thurmond et al., 3 Leigh 85.

Scott & Cole, for appellees:

1. A court of equity will not interfere by injunction, on application of the professed owner, to inhibit the sale of personal property taken on execution unless it be shown that the property is of peculiar value, or that for some reason the party cannot get adequate compensation for the wrong, complained of, in damages in an action at law: 2 Rob. (old) Pr. 224, 225; Randolph v. Randolph, 3 Munf. 99; Allen v. Freeland, 3 Rand. 170; Wilson & French v. Butler, 3 Muuf. 559; Bowyer, &c. v. Creigh, 3 Rand. 25; Randolph v. Randolph, 6 Rand. 194; Walker v. Hunt, 2 W. Va. 491; Watson v. Sutherland, 5 Wall. 74; DuPre v. Williams, 5 Jones Eq. 96; Lewis v. Levy, 16 Md. 85; Freeland v. Reynolds, 16 Md. 415; Hilliard on Injunctions, 232, 233, 234, 235.

2. While the granting of special injunctions in many cases is indispensable for the purposes of social justice, it is attended with no small danger, both from its summary nature and its liability to abuse, and ought to be guarded with extreme caution: 2 Story's Eq. Jur., §959 (6.) and note; Fenly v. Wanzer, 5 How. (U. S.) 141.

3. Several complainants cannot assert separate titles to different pieces, or articles of property, owned by them severally, by the same bill. Such a bill is multifarious: