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The Merchants' & Planters' National Bank et al. vs. The Trustees of the Masonic Hall.

The second error, that the court sustained a demurrer to the plea, we think is entirely untenable.

The plea was, that inasmuch as the secretary and treasurer of the Masons, in disposing of the bonds to the bank, committed a felony, the Masons could not maintain this action, without prosecuting on the criminal side of the court, or showing some good reason why. The court below ruled, and we think correctly, that the judgment in the trover suit was a conclusion both upon the bank and Branch. Moreover, the plea would be bad in this controversy between the Masons and Branch.

If Branch had been guilty of a felony in the conversion of the bonds and the suit was against him, then there might be some ground to require a prosecution before suit; but this is a controversy with the secretary of the Masons. We hardly think if A steals the horse of B and trades him to C, that B would be required to prosecute A before he could recover in trover his horse from C.

3. The plaintiff in error also insists that when the amendment was filed it was a new case, and that the then pending term was the appearance term, so far as the amendment was concerned, and they could not be held to trial then, and the court erred in not so holding. We are not aware of any rule in law or equity trials, where a proper amendment to the pleadings operates to postpone the trial term of the pending cause; but the court, in the exercise of a wise discretion, will give time, or continue the cause when material amendments are made, and the party is put, by surprise or otherwise, to disadvantage, and when substantial justice requires such postpone

ment.

4. The court refused to refer the case to an auditor, on motion of the bank, to ascertain the assets of the bank. The receiver appointed by the law had failed to find any assets or property of the bank, and it was probable an auditor would have been equally as unsuccessful. There was no complicated account between the parties. The Masons had a fixed amount adjudged in the lower court

The Merchants' & Planters' National Bank et al. vs. The Trustees of the Masonic Hall.

and confirmed here. The assets of the bank, if any, were at the control of the defendants, and aside from that the Masons were asking, on the equity set out in their bill, a decree for a specific sum.

So we think the court was right in refusing to refer the case to an auditor. We think also the certificate from the comptroller of the currency was admissible as evidence under the proof, and if error it was quite immaterial to the issue on trial.

5. The defendant offered his answer as evidence be cause the plaintiff had, by amendment, waived discovery, and had not so done in the original bill. It appears that at the time the amendment was made in which discovery was waived, there had been no answer, plea or demurrer, and counsel had no intimation of what any answer would contain, or whether and what answer defendants would make. We think, therefore, it was competent for the complainants to waive discovery in the amendment, and the defendants could not use their answer as evidence, under the rules in equity.

6. The charge of the court is a full and able exposition of the law governing the case, and the complaint against it is not well founded. We, therefore, approve the ruling of the court in his charge to the jury.

7. Likewise the verdict of the jury. It is fully sus tained by the evidence; in fact, we do not see very well how it could be otherwise.

8. The defendants in error here applied for damages, and whilst in a proper case we would not hesitate to award the same, when it appears that the cause was brought here for delay only; but inasmuch as the defendants in error joined in the request for extension of time here on the argument of the case, and with great ability and learning consumed three hours to sustain the rulings of the court below, we must conclude that the plaintiffs in error had reason to hope and to expect a reversal of the judgment below, and their purpose was not delay only.

Judgment affirmed.

Jowers vs. Baker.

65 611

JOWERS vs. BAKER

L filed a bill for account and settlement against B, who answered in
the nature of a cross-bill, making Ja party. J answered in the
nature of a cross-bill against both B and L. B filed a plea of bank-
ruptcy, and the case was dismissed as to him; it proceeded to trial
between J and L. J excepted to the dismissal as to B:
Held, that both L and B were necessary parties to the bill of excep-
tions, and for failure to serve L the writ of error will be dismissed.

Practice in the Supreme Court.

1880.

Reported in the decision.

September Term,

E. G. SIMMONS, by JACKSON & LUMPKIN; T. H. PICKETT, for plaintiff in error.

BLANDFORD & GARRARD, for defendant.

JACKSON, Chief Justice.

A motion was made to dismiss this writ of error on the ground that John G. Lidy, the complainant, was not made a party to the bill of exceptions, and there was no service of the bill upon him. The bill of exceptions simply alleges that the bill in equity was filed by Lidy against Baker and Jowers, and that there was a cross-bill of said Baker, and that the court, by agreement, passed on the issue made by the plea of Baker, setting forth a discharge in bankruptcy, and held Baker discharged from the debt set forth in the pleadings "which ruling is assigned as error."

On looking to the pleadings it appears that Lidy is the complainant, and that Baker and Jowers are defendants, who filed answers in the nature of cross-bills. Jowers excepted, and only served Baker, the other defendant, because the main contest seemed to have been betwen those two defendants; but it would be a novel proceeding to

111 555

Amos vs. Dougherty et al.

bring a cause between a complainant and two defendants to this court without serving the complainant and making him a party. Though the two defendants may have litigated with each other by issues made in the cross-bills, yet the complainant brought the case into the court below and prayed relief, and in the cross-bills, or answers in the nature of cross-bills, the prayer was for relief against him as well as against the co-defendant. In any view of the case, the complainant is a necessary party, and should have been made so by service, and the writ of error is dismissed. See Brown vs. Kennedy, sheriff, et al., and Jordan vs. Kelly and Brother, September term, 1879. Writ of error dismissed.

AMOS VS. DOUGHERTY et al.

The remedy by possessory warrant is applicable, for the purpose of recovering the possession of property, where such possession has been lost by fraud, violence, etc. Where the title is obtained by fraud, and possession accompanies it by consent of the owner, the writ does not lie, nor will the tender back of what was received in exchange, authorize a possessory warrant.

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This case originated in a possessory warrant sued out by the plaintiff in error to recover the possession of a horse which he had swapped to the defendants in error. The right to recover under the warrant, rested upon the

Amos vs. Dougherty et al.

ground as set forth therein, that the horse was taken and carried away from his, Amos', possession without his consent, by fraud, violence, seduction or other means, and was received and taken possession of by the defendants.

Upon the trial of the case the justice awarded the possession to the plaintiff, whereupon the defendants resorted to their writ of certiorari to the superior court, and upon. the hearing the judge sustained the certiorari and ordered. the possession to be restored to the defendants, which judgment is here complained of as error.

This is the second time during the present term that this identical question, arising out of a swap in horses, has been before this court. See Welborn vs. Shirley, not yet reported. The ruling in that case must control this, although it was insisted in the argument that it should not, because in that case there was no tender back of the property by the person complaining.

The possessory writ was never intended to do more than restore the possession of the property to the party from whom the said possession was fraudulently and without consent obtained. Where the title is obtained by fraud, and the possession accompanies it by the consent of the owner, the writ does not lie. Where one gets the possession alone by fraud, violence, etc., or where the property disappears without the owner's consent, and is taken possession of by the party complained against, then in those cases the statute gives the possessory writ as a speedy remedy to restore the possession.

The tender back of whatsoever may have been given in exchange by the complaining party, will not make that possession which simply followed title, such possession as is declared by the statute to be necessary to authorize the exercise of this remedy.

Judgment affirmed.

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