
    *Coffman v. Sangston & als.
    August Term, 1871,
    Staunton,
    i. Appellate Practice — Decree by Default — Reversal— Notice of. — There Is a decree by default against the defendant, and lie gives notice to the counsel of the plaintiff that he will move the judge in vacation to reverse the same, and to make such order in the cause as might be deemed just and proper. This notice is not served on the plaintiffs, but on their counsel in the cause. The judge may properly refuse to entertain the motion, on the ground that the notice was too vague and indefinite to warrant the court to amend or reverse the deci*ee, and also "because it had not been served on the plaintiff. And for the same reasons the appellate court may dismiss the appeal as improvidently allowed.
    2.Chancery Practice — Plaintiff No Interest in Subject Matter. — if it appears from the bill that the plaintiff has no interest in the subject matter of the suit, the objection may be made by demurrer. If this does not appear on the bill, the objection may be taken by plea, or at the hearing of the cause. But if the objection is not taken until the hearing, if it appears from any part of the record that the plaintiff has an interest in the subject matter of the suit, the appellate court will not reverse the decree because such interest is not stated in the bill.
    3. Same — Addition of Parties — Amended Bill. — When the plaintiff has an interest in the subject matter’ of a suit, the bill may be amended, and other persons having the same interest, may be joined as co-plaintiffs.
    4. Same — Same—Same.—S sues C in equity. In the . bill he describes himself as secretary of the B. society, and says that he placed in the hands of O' certain debts for collection, some of which C had collected; and that C refused to pay over the-money or account with S. It may be presumed, from these averments that S had an interest in the subject matter of the suit; and the bill maybe amended making other members of the society co-plaintiffs, and averring the interest of S and the other plaintiffs in the subject.
    5. Chancery Jurisdiction — Unincorporated Associa« tion. — B society is a voluntary society, composed of between four and five hundred members. Some of them may sue O in equity for the benefit of all, for an account and for payment of the money collected, and the return of the evidences of debts unpaid. And the *court has jurisdiction on the ground, either of discovery or from the difficulty of proceedings at law.
    6. Same — Accounts—Agents.—Courts of equity have jurisdiction in matters of account involving the transactions and dealings of trustees and agents, wherever it appears that a discovery is necessary, or there are mutual accounts between the parties, or the remedy at law is not plain, simple and free from difficulty.
    •7. Appellate Practice — Taking Depositions -Presumption of Notice of.- - Though tile notice for taking depositions, and taking the account 'by the commissioner, is not filed, yet, as the record says the depositions were taken pursuant to notice, and it appears that the defendant claimed commissions before the commissioner, it will be presumed in the appellate court, in the absence of proof to the contrary, that notice was given.
    <8. Same — Report of Commissioner —Presumption of Regularity. — The report of a commissioner having been completed on the 10th of April 1869, and the decree made on the 22d of October following, in the absence of anything showing the contrary, it will be presumed by the appellate court, that the report and account were returned and acted on according to the requirements of the statute.
    This was a suit in equity in the Circuit court of Rocking-ham county, brought by Lawrence Sangston against Samuel A. Coffman. The bill stated that Lawrence Sangston, secretary of the Baltimore Agricultural Aid Society, about the 18th of July 1866, placed, for collection, in the hands of S. A. Coffman of the county of Rocking-ham, certain debts owing by parties in said ■county, a list of which he files as an exhibit. That Coffman had collected a portion •of these debts, but to what amount, or of which of the debtors, the plaintiff was not informed. That plaintiff had repeatedly applied to Coffman and requested him to come to an account for the money he had collected upon the said debts, and pay over to the plaintiff the amount he had received, and to deliver to him all the bonds and notes not collected; but that Coffman had not complied with his request, and refuses to do so. And making Coffman a party defendant, he calls upon him to answer; he asks for an account, and for payment of the amount collected, and the delivery of the other bonds and notes not collected to the plaintiff.
    *This bill was taken for confessed in June 1868. In July 1868, Lawrence Sangston, George S. Brown and seven others filed an amended bill in the cause. After setting out the statements of the original bill, and that it had been taken for confessed, they state the plaintiff, Lawrence Sangston, was secretary of the Baltimore Agricultural Aid Society, and a member thereof, and was invested with full authority to collect the debts due the said society, for the benefit of said society; though in fact the debts placed in the hands of Coffman were due to the members of the society, who are very numerous, numbering some four or five hundred. That the society was organized for the purpose of furnishing to the people of the Southern States farming implements, seeds and other necessaries for agricultural purposes; that the funds were raised by voluntary subscriptions; that the society was never incorporated; that local agents were appointed in different counties to endorse and forward applications for such articles as were ordered, and to receive, collect and remit to the plaintiff, Lawrence Sangston, secretary of the society, the notes of the individuals who purchased such implements, for the payment of the price thereof; the proceeds of which sales were for the benefit of the members of said society. That Coffman had failed to pay over the moneys collected by him, or to account or deliver the notes; and as the 'members of the society are too numerous to sue in their own names, the plaintiffs sue for themselves and all other members of the society. The prayer was the same as in the original bill.
    In September 1868, the cause was referred to a commissioner to settle the account of Coffman as agent for the collection of the debts in the bill mentioned, and to ascertain what money, if any, he has collected, and what remains uncollected; and the commissioner was authorized to examine any of the parties under oath.
    On the 10th of April 1869, the corn-missioner returned *his report. From this report it appeared that there had been placed in the hands of Coffman for collection, bonds amounting to, of principal money, $6,041.38. That he had collected, after allowing him all his credits, $4,563.79; and the bonds and notes remaining uncollected amounted to $2,045.67, of principal. One of the bonds placed in the hands of Coffman was that of John P. Brock and Joseph Layman, for $3,816.38. Brock, in his deposition, taken before the commissioner, says that he had paid to Coffman about $3,700, as near as he can state; but he will furnish the commissioner with an aggregate statement of the amount, to be taken as a part of his answer to this question. That statement does not appear on the record, nor is there any reference to it. Coffman is charged with the $3,700. The other collections by Coffman, and with which he is charged, are proved by the parties to the bonds who made the payments.
    No notice of taking the depositions is filed, but the commissioner returns them, with his report, and says in the caption, depositions taken pursuant to notice; and he refers the question of commissions upon his collections, made by Coffman, to the court; and it appears from the decree as well as from the bonds themselves, that Coffman had filed the bonds he had not collected with the commissioner. The deposition of Sangston was filed in the cause, and it sustains the allegations of the bill. This deposition was taken under a commission, and the notice is returned with it.
    The cause came on to be heard on the 22d of October 1869, when the amended bill was taken for confessed, and the court made a decree that the complainants recover against Coffman the sum of $4,378, with interest from the date of the receipt, upon the sums received by him respectively, with costs.
    On the 30th of November Coffman addressed a notice to the counsel for the plaintiffs, which was served upon *them on the same day, in which he says, that on .a day specified, he will submit a motion in chambers, at Winchester, Va., before the judge of the Circuit court of Rockingham county, for the reversal of the decree' above mentioned, and to have such order made therein as may be deemed meet and proper by the judge. The notice does not specify any errors in the decree. On this notice the motion was made, and overruled by the judge, on the ground that there was no error apparent on the record, for which the decree ought to be reversed. Coffman then applied to a judge of the District court of appeals at Winchester for an appeal; which was allowed: and the case was afterwards transferred to this court.
    Deggitt and Harris, for the appellants.
    Woodson and Harnsberger, for the appel-lees.
    
      
       Appellate Practice — Decree by Default — Reversal-Notice of. — The proposition in the first head-note of the principal case, that a motion in vacation to reverse a decree by default will not be entertained on the ground that the notice was too vague, was quoted with approval in Board; &c., v. Parsons, 22 W. Va. 311, citing the principal case.
      In Laidley v. Bright, 17 W. Va. 801, the principal case it seems was doubted. The court said: “The fourth ground of error assigned in the notice of this motion was, that this writing or note was not payable at a particular bank. On the face of the writing it was payable at the Bank of Huntington; and there is apparently no basis for this assignment of error. But in argument before this Court it is insisted, that the Bank of Huntington is an unincorporated bank, and though there is no evidence of this in the record, and the evidence on which the court acted, when it entered the original judgments, does not appear, yet it is said, that this court knows judicially what banks have been incorporated in this State, and thus judicially knows, that the Bank of Huntington is not an incorporated bank.
      “In answer to these positions it is urged, that the notice of said motion did not inform the parties fairly, that this fact, that the Bank of Huntington was not a chartered bank, would be urged as a reason for reversing said judgment, nor does the record show, that itwas relied on, when the motion was acted on by the circuit court, and that unless a party, who asks a court to reverse a judgment by default on notice and motion under the statute, specifies in his notice a particular ground of objection, he cannot rely upon such ground before the circuit judge or in the Appellate Court.
      “The case of Coffman v. Sangston, 21 Gratt. 263, strongly supports these views. I am however not satisfied in my own mind, that the views taken by the court in that case are sound. And if it was necessary in this case to consider this alleged error and several others, which were not mentioned in the notice except as included under the phrase ‘errors apparent on the face of the record,’ I would consider the point, whether this court has a right to look into such errors apparent on the face of the record, but which were not specifically mentioned in the notice. But this is itself an important question, and as it is really unnecessary for us to consider any of these alleged errors not specifically named in the notice, we will not do so, as our right to do so may be regarded as questionable.”
      For the proposition, that a decree rendered on a bill taken for confessed may upon appeal be dismissed as improvidently allowed, for the reason that no proper motion was made and overruled by the court below; but inasmuch as the parties have submitted the case upon its merits and a decision here will terminate a protracted controversy, it is deemed most advisable to decide various questions presented by the record, the principal case is cited and followed in Com. v. Levy, 23 Gratt. 31.
    
    
      
       Chancery Practice — Addition of Parties — Amended Bill. — The principal case is cited, for the following proposition, when the plaintiff has an interestin the subject matter of a suit, the bill may be amended and other persons having same interest may be joined as co-plaintiffs, in the following cases: Burlew v. Quarrier, 16 W. Va. 142; Belton v. Apperson, 26 Gratt. 222. See, in accord, Sillings v. Bumgardner, 9 Gratt. 273.
    
    
      
       Chancery Practice — Unincorporated Association.— As authority for the proposition laid down in the fifth head-note of the principal case, that one member of a voluntary association may sue in equity for the benefit of himself and all the other members, the principal case was cited and fully approved in Perkins v. Seigfried, 97 Va. 449, 34 S. E. Rep. 64; Sangston v. Gordon, 22 Gratt. 764. See also, Berkshire v. Evans, 4 Leigh 223.
    
    
      
       Chancery Practice — Accounts—Agents.—For the proposition that courts of equity have jurisdiction in matters of account involving the transaction and dealings of trustees and agents, wherever it appears that a discovery is necessary, or there are mutual accounts between the parties, or the remedy at law isnotplain, simple and free from difficulty the principal case is cited in the following cases: Merchant’s Bank v. Jeffries, 21 W. Va. 508; Yates v. Stuart, 39 W. Va. 130, 19 S. E. Rep. 425; Penn v. Ingles, 82 Va. 71; Vilwig v. B. & O. R. Co., 79 Va. 455; Simmons v. Simmons, 33 Gratt. 456; Huff v. Thrash, 75 Va. 546. See, in accord, Berkshire v. Evans, 4 Leigh 223; Zetelle v. Myers, 19 Gratt. 62, and note; Salamone v. Keiley, 80 Va. 86; Hickman v. Stout, 2 Leigh 6; Sturtevant v. Goode, 5 Leigh 83; Tyler v. Nelson, 14 Gratt. 214; Thornton v. Thornton, 31 Gratt. 212; Lafever v. Billmyer, 5 W. Va. 33; Petty v. Fogle, 16 W. Va. 497; Richmond, etc., R. Co. v. Kasey, 30 Gratt.218; Tillar v. Cook, 77 Va. 477; Segar v. Parrish, 20 Gratt. 680. See the principal case cited and distinguished in Goddin v. Bland, 87 Va. 709, 13 S. E. Rep. 145.
    
    
      
       Chancery Practice — Report of Commissioner — Exception in Court below. — It has been uniformly held by this court that objections to a decree for errors in the report of a commissioner, not appearing on the face of it, cannot ayail here unless founded on exceptions taken to the report in the court below. Simmons v. Simmons, 33 Gratt. 451; Liberty Savings Bank v. Campbell, 75 Va. 534; Peters v. Neville, 86 Gratt. 549; Coffman v. Sangston, 21 Gratt. 263; Cole v. Cole, 28 Gratt. 365; Wimbish v. Rawlins, 76 Va. 48; Ashby v. Bell, 80 Va. 811; Nickels v. Kane, 82 Va. 309; McComb v. Donald, 82 Va. 903; Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12; Morrison v. Householder, 79 Va. 627; 2 Robinson’s Old Pr. 383; Shipman v. Fletcher, 91 Va. 490, 22 S. 12. Rep. 458.
    
   STAPLES, J.

This is an appeal from a decree of the Circuit court of Rockingham county, in a cause Wherein the appellees were complainants, and the appellant was defendant. This decree having been rendered on a bill taken for confessed, the defendant, in vacation, moved the judge of said court to reverse the same, and to make such order in the case as might be deemed just and proper. The notice of this motion was not served upon either of the parties plaintiff, but upon the counsel in the cause. It did not specify the errors complained of, nor in any manner disclose the character of the decree the defendant desired. Although the motion was overruled upon the ground there was no error apparent on the record, the judge of the Circuit court might properly have refused to entertain the application, upon the ground the notice was not served upon the proper parties, or was too vague and indefinite to warrant the interposition of the court either in reversing or amending the decree.

And this court might now dismiss the appeal as improvidently ^allowed, for the reason that no proper motion was made and overruled by the court below but inasmuch as the parties have submitted the case upon its merits, and a decision here will terminate a protracted controversy, it is deemed most advisable to decide the various questions presented by the record.

The first ground of error assigned is, that the plaintiff in the original bill showing no interest in the subject matter of the suit, could not sue at all; and this defect could not be cured by filing an amended bill in the name of other parties. It is stated in the original bill that the plaintiff placed in the hands -of the defendant for collection the various debts which constituted the matter in controversy; that the defendant had collected a large portion of them, to what extent was not known; that the defendant had failed to render any account of his transactions, although repeatedly required so to do by complainant. The court might justly presume from these averments taken as confessed, that the plaintiff was individually interested in these debts; and such presumption would not be repelled because complainant describes himself as “Secretary of the Baltimore Agricultural Aid Society.”

It is averred in the amended bill, that the plaintiff Sangston is a member of this society, and that the said debts were due to the members of said society: which averment must also be taken as true. According to the well settled rules of equity pleading, if the fact of the plaintiff having no interest appears on the face of the bill, advantage should be taken of it by demurrer. If it does not appear on the bill, the proper mode of making the objection is by plea: and it may be made even at the hearing. If, however, the cause proceeds to a hearing without such objection, and it appears in any part of the record that the plaintiff is interested in the subject matter of the ■ suit, certainly an appellate court would not ^reverse the decree because such interest is not stated in the bill.

It is insisted, however, that an amended bill cannot be filed in the name of parties plaintiff not mentioned in the original bill. It is the constant practice of the courts of chancery to allow amendments of bills by the introduction of new plaintiffs, where the purposes of justice require it. In Maughan v. Blacke, 3 Ch. Appeal Cases, 32, leave was given at the hearing to amend, not only by adding the true parties as co-plaintiffs, but by inserting allegations to show that the first plaintiff had a beneficial interest in the debt which was the foundation of the suit. And in Sillings & als. v. Bumgardner, 9, Gratt. 273, this court held, that, although a suit could not be maintained by a plaintiff having no interest, and in such case the objection could not be removed by the introduction of other parties having interests, yet, if it appears that the plaintiff has an interest, though in a different character from that in which he sues, the descriptive words may be stricken out, and the suit may proceed in his name, and that of his co-plaintiffs brought before the court by an amended bill. It would seem that these authorities are decisive of this question.

Another ground of error is, that the plaintiffs have a plain and adequate remedy at law, by action of assumpsit; and there is not the slightest pretext for resorting to an equitable forum. The jurisdiction of courts of equity in matters of account involving the transactions and dealings of trustees and agents, is now well established. Not that the bare relation of principal and agent justifies the interference of the court in every case; but wherever it appears that a discovery is necessary, or there are mutual accounts between the parties, or the remedy at law is not plain, simple and free from difficulty, the equitable jurisdiction attaches. In Hemings v. Pugh, 9 Jur. N. S. 1124, it was held, that if the defendant, as agent, has received sums of money for the plaintiff, the ^particulars and amount of which are unknown, a hill praying discovery and account will be maintained. In Berkshire v. Evans, 4 Leigh, 223, a bill was filed on the part of the members of a private unchartered company, carrying on the business of a bank, against their agent and cashier, charging that he had appropriated part of the funds, and praying an account of the agencj': and the jurisdiction of the court was distinctly recognized and affirmed. In the present case, it is alleged that the members of the society are too numerous to sue in their own names, numbering from four to five hundred. In an action at law all these members must have joined as plaintiffs. The difficulties in the way of properly ascertaining their names, and of carrying on the suit, when so ascertained, are too palpable to require argument or illustration. The practice, however, in courts of equity, of permitting one or more persons to represent, in one suit, all who have a community of interest, removes these difficulties, and enables the court, in the present case, speedily to adjudicate the rights of the parties, without the slightest danger of injustice.

Another ground of error assigned is, that the court rendered its decree upon depositions taken and a commissioner’s report made without notice to the defendant; and which does not appear to have been returned to the court thirtjr days before the term at which the decree was rendered. It is stated in the record, that the depositions were taken pursuant to notice; and there is nothing to show to the contrary. It also appears that the defendant was apprised of the taking of the account; at least it is to be so inferred, as he seems to have claimed his commissions before the commissioner charged with the settlement of the account; and he also surrendered certain bonds which he claimed not to have collected. The report was completed on the 10th of April 1869, and the decree was rendered on the 22d of October thereafter. It is therefore to be presumed, in the *absence of evidence showing otherwise, that the report and account were returned and acted on according to the requirements of the statute. But whatever force there might have been in these objections if urged in the court below, no rule is better established than that they cannot be successfully made for the first time in this court. See Steptoe v. Read, 19 Gratt. 1; Hill & als. v. Bowyer & als. 18 Gratt. 364.

Another ground of error assigned is, that the defendant is improperly charged with thirty-seven hundred dollars, part of the Brock and Bayman bond, because there was no satisfactory proof of the payment of that sum. The objection is founded on a misapprehension of the testimony. The obligor, Brock, expressly states that about $3,700 of the bond were paid to the defendant, and he was ready at any time to pay the balance due. The defendant surrendered other bonds and evidences of debt as uncollected; if the charge was improper, it was easy to have surrendered this one also, and thus show the amount uncollected.

The last and only remaining assignment of error is, that the bill shows upon its face that the defendant had no power to fill the blanks in the bonds or notes with the name of the payee; and that said power alone vested in Sangston, and it had not been exercised by him. I cannot see the force of this objection. The defendant is only charged with the sum of $4,378, the amount actually collected, exclusive of the credits to which he was entitled. Having received the money of the plaintiff's, he is bound to account for it; and it cannot be a matter of the slightest importance whether he did or did not have the power to fill the blanks in the bonds; nor can he be heard to say that the transaction for that reason did not constitute an agency.

I have thus noticed the various objections suggested to the proceedings and decree of the Circuit court. Many of them would have been wholly unavailing if *urged in that court. Others might have been readily obviated, if there made; and, consequently, cannot be considered by this court. It can make no difference that the decree is by default. The defendant can derive no advantage from his own contumacy and neglect in failing to appear and take care of his interests. Being admonished of the institution of the suit by the service of process, it was his duty to appear and defend it. I do not mean to assert that the defendant cannot take advantage of palpable errors apparent on the face of the proceedings: It is clear that he may, notwithstanding his failure to appear. It is equally clear, that if the averments contained in the bill are not distinct and positive, the plaintiff: is required to establish his demand by satisfactory evidence. Should he fail to furnish such evidence, the defendant may avail himself of the objection in an appellate court, notwithstanding the bill has been taken for confessed.

In this case it is true the bill contained no specific allegations as to the amount collected by the defendant; but an account was taken; the certainty requisite to a proper decree was afforded by the proofs; and the defendant rendered liable for the amount ascertained to be due. In any aspect of the case, it does not appear that any injustice has been done him. Ror these reasons, I am of opinion the decree should be affirmed.

The other judges concurred in the opinion of Staples, J.

Decree affirmed.  