
    *Bassett's Adm'r &c. v. Cunningham's Adm'r.
    March, 1836,
    Richmond.
    Bill for Account — When It Does Not Lie — Case at Bar.— Bill in chancery by A.’s administrator against B.’s executor alleges, that plaintiff found among A.’s papers five bonds of B., three executed to A. and two to other persons who had transferred (not assigned) them to A. and also many accounts and charges for wheat and other things sold and money advanced by A. toB.; that B. in his lifetime made many payments to A. on various accounts, but there was a large balance due to A.’s estate, of which proof would in due time be given to the court or its commissioner; and that plain-tifi was advised his remedy was in equity, because the transactions between A. and B. were so complicated and multifarious that a jury could not settle them, — because many of the transactions, and the payments made by B. could not be understood by any tribunal, without the aid of defendant’s personal knowledge of them, and the exhibition of his testator’s books in his possession, —and because many things necessary to a just settlement would be excluded from the consideration of a jury, by the strictness of proceedings at law; On demurrer to the bill, Held, equity has no jurisdiction of such a case.
    Equity Practice — Right to Answer and Demur at Same Time. — A defendant in chancery in Virginia may, at the same time, answer and demur to the same matter in the bill; dissentiente Tucker, P.
    Appeal from an interlocutory decree of the circuit superiour court of Hanover.
    The bill was exhibited by Cunningham’s administrator against the administrator with the will annexed of Bassett; and it alleged, that upon the death of Cunningham in 1831, the plaintiff found among his papers five several bonds of Bassett, three executed to Cunningham and two to other and different obligees who had transferred (not assigned) them to him, and also many accounts and charges against Bassett for wheat and other thing's sold and moneys advanced to him by Cunningham: that Bassett had, in his lifetime, made many payments to Cunningham on various accounts, the transactions between them being multifarious; but there was a large *balance due to Cunningham’s estate, whereof evidence should be exhibited in due time to the court, or to its commissioner to whom the accounts should be referred: that Bassett’s administrator had admitted that there was a balance due to Cunningham’s estate, and promised to adjust and settle the accounts; but this he afterwards declined to do; and then a reference to arbitrators was proposed, but this was also ultimately declined: and that the plaintiff was advised that his proper remedy was a bill in equity, because the transactions between Bassett and Cunningham were so complicated and multifarious, that it was impossible for a jury to settle and determine them with justice to either party; because many of the transactions, and the payments made by Bassett to Cunningham, could not be properly understood by or explained to any tribunal, without the aid of the personal knowledge which Bassett’s administrator had of the transactions, and the exhibition of his testator’s books in his possession, neither of which could be had in a court of law; and because many things necessary to a just settlement of the accounts, would, by the strictness of proceedings at law, be excluded from the consideration of a jury. Therefore the bill prayed, that Bassett’s administrator should answer the allegations of the bill on oath, that he should be compelled to produce his testator’s books and all accounts in his possession touching the transactions between Bassett and Cunningham, that proper accounts should be directed, and general relief.
    Bassett’s administrator first demurred to part, pleaded to part, and answered to the residue of the bill. He demurred to so much thereof as sought relief uopn the five bonds, because, so far, the plaintiff had a complete remedy at law, and therefore was not entitled to relief in equity: to so much of the bill as related to the claims of Cunningham’s estate against Bassett’s estate on open accounts, he pleaded the statute of limitations: '*and to the other allegations of the bill, respecting the defendant’s admission that there was a balance due to the plaintiff, his promise to settle the accounts, and the proposition for a reference to the arbitrators, he answered, denying, or explaining away, those allegations. And the plaintiff joined in the demurrer, and replied generally to the plea and the answer.
    But, afterwards, the defendant asked and obtained leave to demur generally to the whole bill; and he accordingly filed such a demurrer.
    Then, the cause being heard upon the bill, the demurrer and the answer, the court overruled the demurrer, and referred the accounts between the parties to a commissioner, and ordered that the defendant should produce before the commissioner, the books and accounts of his testator touching the accounts between the parties, and should moreover submit to be examined in solemn form by the commissioner, if thereto required by that officer or by the plaintiff. The defendant applied by petition to this court for an appeal from the decree ; which was allowed.
    The cause was twice argued here, by Daniel for the appellant and Lyons for the appellee. Upon the first argument, the court reversed the decree, but after-wards, at Lyons’s instance, set aside the decree of reversal, and allowed a re-argument.
    Daniel maintained, that the circuit supe-riour court ought to have sustained the defendant’s demurrer to the bill: that the case shewn in the bill was not a proper case for relief in equity, because, by the plaintiff’s own shewing, he had plain, complete, unembarrassed remedy at law, and indeed, a better and to him more advantageous remedy at law ; namely, actions of debt on the five bonds, and assumpsit on his claims upon the open accounts. The difficulty of proving Bassett’s payments lay upon his administrator. Ñor did the plaintiff *want any discovery; for he said, he would, in due time, exhibit evidence of the large balance due to him, to the court, or to the commission to whom the accounts should be referred. But even if the court was right in taking jurisdiction, yet, upon overruling the demurrer, it should have directed the defendant to answer, instead of taking the bill pro confesso, and proceeding forthwith to order an account, thus depriving the defendant of the benefit of his answer, and of a hearing upon the merits. Sutton v. Gatewood, 6 Munf. 398; 1 Rev. Code, ch. 66, l 98, p. 21S.
    Lyons said, that the cause, as it was presented to the court below, stood on a demurrer to the whole bill, and an answer to part; and the answer overruled the demurrer. 2 Madd. Ch. Prac. 282; Mitf. Plead. 171. Therefore, the court was right in making its decree upon the bill and answer, unless the case shewn in the bill was in itself so improper for relief in equity, that the court could not entertain jurisdiction of it. Here, the transactions between the parties were stated to be complicated and multifarious; and that they could not be understood by or explained to a jury, without the aid of the defendant’s personal knowledge, and an inspection of his testator’s books and accounts in his possession. It was plain too, that if the plaintiff had resorted to his remedies at law, he would have had to bring four actions; one at the least, on Bassett’s three bonds to Cunningham himself, two on the two bonds of Bas-sett to others transferred to Cunningham, and a fourth on the simple contract claims. Upon the bonds transferred, not assigned, to Cunningham, the plaintiff was entitled to relief in equity, according to the decisions of tjhis court in "Winn v. Bowles, 6 Munf. 23; 'Garland v. Richeson, 4 Rand. 266. [Carr, J., asked whether the law, as to that point, was not altered by the statute of March 1821, Supp. to Rev. Code, ch. 101, l 1, p. 128?] Lyons thought it was not; that the statute applied to bonds ^"assigned, not to bonds simply transferred without assignment. He said, this was, in truth, a bill for an account between the representatives of two dead men, of complicated and multifarious transactions between the decedents in their lifetime: the bonds were only items in the account: and for the fair and just settlement of this account, the bill alleged that a discovery from the defendant, and an exhibition of his testator’s books and accounts in his possession, were necessary. The plaintiff would have been entitled to an answer from Bassett on oath, if he had been living: he was entitled to a like discovery from his representative, and to call for the production of his testator’s books, which would be the best substitute for that discovery from Bassett, of which his death had deprived the plaintiff. Therefore, the demurrer to the whole bill was rightly overruled. And the bill stating matter proper for relief in equity, and the defendant having answered the bill (which alone put his demurrer out of the case), he was afterwards precluded from taking exception to the jurisdiction. Hickman v. Stout, 2 Heigh 6.
    
      
      Failure of Bill to State Grounds for Equitable Relief —Effect.—On this point, the principal case is cited in Yates V. Stuart. 39 W. Va. 130, 19 S. E. Rep. 425.
    
    
      
      Equity Practice — Right to Answer and Demur at Same Time. — A defendant may plead law and fact at the same time under statute. Cook v. Dorsey, 38 W. Va. 200, 18 S. E. Rep. 470, citing Dunn v. Dunn, 26 Graft. 291; Bassett v. Cunningham, 7 Leigh 402. The •incipal case is also cited in Reynolds v. Bank of Virginia, 6 Gratt. 184.
    
   BROCKENBROUGH, J.

It was said by the appellee’s counsel, that the demurrer to the whole bill and the answer could not stand together, that the answer overruled the demurrer, and that this court should therefore disregard the demurrer, and not dismiss the bill. The rule is laid down by Mitford, Plead, in Ch. 171, that “a defendant may demur to one part of a bill, plead to another, answer to another, and disclaim as to another. But all these defences must clearly refer to separate and distinct parts of the bill. For the defendant cannot plead to that part to which he has already demurred, neither can he answer to any part to which he has either demurred or pleaded; the demurrer demanding the judgment of the court whether he shall make any answer &c. — An answer will therefore overrule a ^demurrer &c.” So too, in 2 Madd. Ch. Prac. 282, it is said, a defendant cannot demur and plead, or demur and answer, to the same matter, for the answer will overrule th,e demurrer. Although such is the rule in England, yet I think we should not hold it applicable here. By our statutes,- in all actions at law the defendant may plead as many- several matters, whether of law or fact, as he shall think necessary for his defence; and it has been repeatedly decided that a defendant may plead and demur to the declaration. Why should we not extend this rule, by analogy, to the proceedings in courts of equity? An answer and a demurrer are not more inconsistent with each other, than a plea to a declaration and a demurrer. The statute of limitations by its terms applies only to actions at law, yet courts of chancery have always extended its benefits to parties in equity. It is true that another statute says, that upon demurrer overruled, the defendant shall answer within two months after. 1 Rev. Code, ch. 66, l 100, p. 216. But this section applies only where a defendant relies solely on his demurrer, and does not preclude him from answering at the same time that he demurs. I am therefore of | opinion, that we should not consider the general demurrer as overruled by the answer, and that we are bound to determine the question upon the demurrer, whether the plaintiff had or had not an effectual and complete remedy at law, and whether equity should take jurisdiction of the case? On that point I shall only say that I concur with my brethren. I am for reversing the decree, and dismissing the bill.

CARR, J.

I think the demurrer to the whole bill ought to have been sustained, and the bill dismissed. It is clearly an attempt to bring into equity, matters far more proper for the legal forum. Hook at the stating part of the bill, where alone we are to find the case: what is it? Simply, that the plaintiff found among the papers of *his intestate, five bonds-executed by Bassett, and which were the property of his intestate, and also many accounts and charges against Bas-sett, for wheat and other things sold and money advanced him by his intestate. This I consider the whole case stated in the bill. To be sure there is much more, going to shew, by way of argument and conclusion from these premises, the propriety of going into chancery: but this, so far from adding to the case, is itself a fault in the bill, for we know that pleadings are not to be argumentative. Look then at the case stated, and where is the ground of equity? The five bonds, surely, do not give it; for on them there was complete redress at law: it is stated,, to be sure, that the plaintiff could not ascertain the payments made to the bonds, without the aid of the defendant’s oath, and the books of the intestate : but this is a new ground Of equity to me. The plaintiff had the bonds: it was for the defendant to make out the payments; that was his affair. Take away the bonds, and what remains? This alone, that there were many accounts and charges against Bassett for wheat and other things sold and money advanced him, and that he has made many payments. Will such a charge as this give jurisdiction to equity? Does it state mutual demands? No: it is expressly made up, solely of demands on one side, and payments on the other. But, moreover, the manner of the statement is wholly inadmissible. It is this: “I have many accounts against defendant for wheat and other things sold and money advanced to him, and I pray a decree for such balance as may be due me.” Is not such .a bill demurrable for the vagueness and looseness of the case stated? How should a defendant answer such a case? There is nothing specific; no account stated. It was impossible that he could have the benefit of his answer to such a bill; and therefore he might well put it to the court to say (as the demurrer does) whether he shall be held to answer. I* think, on these ^grounds, that the demurrer ought to have been sustained, and that we must reverse the decree and dismiss the bill.

CABELL, J.

We may allow to the statements in the bill the utmost latitude which can be claimed for them, and yet they do not make a case to entitle the plaintiff to the interposition of a court of equity.

The case stated by the bill is not one of mutual accounts or demands. The demands are all on the side of the plaintiff; consisting', as stated by himself, of five bonds executed by the testator of the defendant, and of many accounts and charges against him, for wheat and other things sold and money advanced him by the plaintiff’s intestate, with an admission that many payments had been made by the testator of the defendant. There is no allegation of a want of proof to establish these demands: certainly not as to the bonds, for they prove themselves, unless denied by a plea of non est factum. And even if the plaintiff stood in need of a discovery from the defendant as to the open accounts, or if there were mutual accounts, and the plaintiff had therefore a right to go into a court of equity as to them, that would not justify his joining the bonds with them. But no want of proof is alleged, even as to the open accounts. The truth is, that the only difficulty as to proof relates to the payments. But that is a novel argument in the mouth of a creditor; and not less novel than inadmissible. For, unless he is prepared to admit the payments, why shall he complain of the difficulty of proving them? It will be time enough to attend to it, when it shall be urged by the debtor as a ground for equitable relief. The plaintiff had a plain and adequate remedy at law, and his bill in equity ought to have been dismissed on the general demurrer filed by the defendant. And I concur in the opinion expressed by my brother Brockenbrough (and for the reasons assigned by him), that it is competent to a defendant *in chancery, in Virginia, to file at the same time an answer and also a demurrer to the same bill. I think the decree should De reversed, and the bill dismissed.

BROOKE, J.

It is unnecessary to add any thing to what has been said by my brother Cabell, "with whom I entirely concur.

TUCKER, P.

This record, though a short one, presents a tangled skein. The defendant first demurred, pleaded and answered to various parts of the bill, and the plaintiff took issue. Afterwards, he filed a general demurrer which was joined. This general demurrer and the answer could not stand together, as a party cannot at the same time demur and answer to the same matter. We must, therefore, consider the answer as waived, and the demurrer substituted for it, or we must throw the demurrer out of the case. Either way, there was error. Take it upon the demurrer: then upon overruling it, the defendant should have been ordered to answer over in two months; 1 Rev. Code, ch. 66, $ 100, 101, p. 216. On the contrary, if the cause should have been considered as standing upon the answer, then there was no proof, nor indeed any allegation in the bill, which justified a reference of the accounts. For I take it, that regularly a reference cannot be directed until the hearing, without consent; Wyatt’s Prac. Reg. 363, 364; 1 Grant’s Chan. 246; Clarke v. Tinsley’s adm’r, 4 Rand. 250; Cutting v. Carter, 4 Hen. & Munf. 478, nor then, unless the plaintiff shews himself, by the proofs, entitled to an account. Upon the hearing in this case, therefore, the bill should have been dismissed, as there was no title _ of proof, and indeed no demand in the bill, which called for a reference. The case is, in truth, an action of debt upon sundry bonds, brought in equity instead of the proper tribunal, a court of law. True, it is alleged that accounts of wheat &c. delivered by Cunningham to Basset that have been found among Cunningham’s ^papers. But these accounts are not produced, and they might and ought to have been produced to enable the defendant to answer to them. If they were charges which the plaintiff intended to maintain by proofs, the defendant had a right to know them, that he might put them in issue by denial, and have the benefit of his answer. If they were charges the proof of which depended on discovery, they ought to have been specified, since, otherwise, it was impossible that the defendant by his answer could give the necessary information. Such a vague and uncertain statement in a bill should pass for nothing. I look upon the whole which relates to the accounts and to the knowledge of Bassett, to be out of the case, as the allegations are too indefinite to be answered to, and the matter of the bill too vague to be decreed, even if it had been taken for confessed. I should, therefore, have thought it properly dismissed for want of jurisdiction, even upon the supposition that the case stood upon the general demurrer. For the demand, so far as it is tangible, is one. which might have been and ought to have been asserted at law ; and as it respects the accounts and the matter within the knowledge of the defendant, the charge is too indefinite and vague to be entitled to consideration. The demurrer confesses, indeed, all the statements of the bill, but when those statements aré utterly vague and indefinite or shew no title in the plaintiff to relief, such confession is of no avail. It does not appear what are the plaintiff’s demands; it is not distinctly alleged, that there is any part of his demand that he cannot sustain without a reference to the books and the conscience of the defendant; nor does it distinctly' appear, that the open account demands of the plaintiff are such as to give a court of equity jurisdiction. The bill is indeed ingeniously drawn with a view to give colour of jurisdiction, but I think it is not more than colourable, and I am therefore of opinion that it ought to have been dismissed. •

Decree reversed, and bill dismissed.  