
    *Webster v. Couch.
    October, 1828.
    Injunction — Reinstating—Appeal.—when a Chancellor retases to re-instate an injunction, on new proofs of the allegations on a Bill, a Judge of the Court of Appeals has a right, on an appeal to him, to reinstate it.
    Same — BUI of Discovery — Allegations of Bill Denied— Effect. — In a Bill of Discovery, if the Defendant makes no discovery, but on the contrary, negatives the allegations of the Bill, the Injunction awarded on the Bill should be dissolved.
    Set-Off — Unliquidated Damages. — Unliquidated damages for a substantive injury, cannot be set-off, either at Law, or in Equity, against a legal demand.
    Edmund Webster exhibited his Bill to Chancellor C. Taylor, setting forth, that in the year 1816, he, the Plaintiff, and],a certain Daniel Couch, entered into an agreement, whereby the Plaintiff became bound to convey to Couch sundry houses and lots in the City of Richmond, for which he was to receive in exchange from Couch, a good title in fee-simple to a tract of land lying on the waters of Geld Mine Creek in Hanover, containing about eight hundred acres of land: that in consideration of the said exchange, the Plaintiff further agreed to pay to Couch, and to Ellis & Allen, at the rate of $1,000 per annum, as rent for the said houses, from the 24th January, 1816, till the 1st May then next following. After executing Deeds in pursuance of the said agreement, Couch exhibited to the Plaintiff a lease, whicn he had previously made of part of the said land in Hanover, to a certain John T. Swann, by which the Plaintiff discovered to his great surprise, that the lessee, amongst other things, was authorized to cut and carry off from the said land, a large quantity of timber, for the purpose of erecting a barn. The Plaintiff expressed his surprise, that Couch had never, previous to the final execution of the agreement, intimated to him the authority thus given to Swann. In reply, Couch admitted that he had not, but said that timber thus cut might be valued, and settled between himself and the Plaintiff, at the same time with the rent which should become due from the Plaintiff as aforesaid.
    *The Plaintiff further stated, that Couch mentioned at the same time, that Swann was bound by the lease to cultivate that portion of the land which had been rented to him in a farmer like manner, and expressly promised to make good to the Plaintiff, on a settlement of the rent, all damages, should any ensue to the land, from improper or negligent cultivation ; and the Plaintiff avers, that the fertility of the soil vas greatly diminished by Swann, and the land much injured, both by the improper cultivation, and the destruction of its timber.
    He states, that Couch instituted a suit at Law against him for the rent, and recovered judgment for the whole amount, without allowing him any discount, or deduction for the injury done to the land, and the value of the timber cut therefrom: that he could not at Law establish the facts herein stated, there being no witnesses then, or now known to him, who could be produced to prove them: that an Execution has issued against his effects, which will be unjustly sacrified, unless prevented by a Court of Equity.
    He therefore prays, that Couch, and Ellis & Allen, (for whose benefit the Judgment ■was rendered,) may be made Defendants; that Couch may more particularly be required to say, whether he did not promise and engage to allow the Plaintiff on a final settlement of the rent, the value of the timber cut, and all damage done to the land by Swann : that an account may be directed to be taken, before a Commissioner, or in some other proper way, of the value of the said timber, and damage to the land; and for an Injunction to the Judgment.
    The Injunction was awarded by the Chancellor, on the 18th August, 1820.
    Couch answered, saying expressly, that at the time he entered into the contract with the Plaintiff, he made known the fact that the land had been leased to Swann, the particular terms of which he believes were known to the Plaintiff. He says, it is untrue that he ever admitted that he had not informed the Plaintiff of the terms of Swann’s *lease; and, as to the surprise of which the Plaintiff speaks, when the lease to Swann was exhibited, the Defendant remarks, that there was no written lease between Swann and himself; it was a verbal agreement only, of which the Plaintiff was apprised before he entered into the contract.
    He says, that by the terms of the lease to Swann, it was agreed that if he would cultivate a crop of tobacco, he might have liberty to cut from the land as many poles as would build a house sufficient to cure the tobacco made, and erect it on his own land ; there was no permission to erect a barn, nor was none erected. He denies that he ever did agree with Webster to be liable, or responsible in any way, for the cultivation of the land by Swann, or any one else, or to make good any damage which might be done to the land, though he denies that any damage was done, or that the cultivation was improper as far as he knows or believes. He admits, that after the money was due to him for the rent, and after repeated applications for it, he did offer the Plaintiff that if he would pay him what was due, he might have the poles which had been cut from the land valued, and the valuation allowed, but this he refused to do; he avers that the offer was one he was not bound to make, but it was made to prevent delay, and to avoid a suit. The Judgment at Daw was entirely for his own benefit.
    Ellis & Allan answered, denying that they had anv interest in the suit.
    The Court dissolved the Injunction, on the 15th January, 1821.
    Afterwards, the Plaintiff filed the affidavits of John Webster and Samuel Gibbs, taken on the 8th and 9th June, 1821. The first witness, in answer to interrogatories put by the Plaintiff, stated that he was overseer for Swann, in 1816; that the land leased by Swann from Couch, was between two and three hundred acres; that it was not cultivated in a farmer-like manner; that it would have been worth 250 dolls, to put it in such order, for he never saw land *worse cultivated than it was ; and that the timber cut off the land was worth 150 dolls., at least.
    The second witness said, that he lived with Edmund Webster, at Gold Mine, in 1816: that in the course of the year Couch called on Webster, to know if he could pay him the money due him for the rent of the houses: that Webster told Couch that if he would pay him for the waste of the timber that Swann had taken from the land, and the injury done the land by bad cultivation, he would pay him: Couch said, that he would have no objection to leave the difference in dispute to any of the neigh-bours; he could not do so at that time, but would have it done shortly: Webster told Couch, he was anxious to have it settled as soon as possible, as he had no wish to be involved in a law suit.
    On the 15th June, 1821, after exhibiting these affidavits, the Plaintiff moved the Court to re-instate the Injunction, but the application was rejected.
    The Plaintiff then petitioned Judge Coalter to re-instate the Injunction, for the following reasons:
    The affidavit of Webber, he alleges, establishes the fact that timber to the amount of $150, was cut off the land leased to Swann, and that by improper cultivation it has sustained an injury to the amount of $250 more: that it is admitted by the Defendant Couch, in his Answer, that by the terms of the contract with Swann, he was at liberty to cut timber on the land, and that the Plaintiff charges that the terms of that contract were concealed from him by Couch: this is charged by the Bill, and the Answer in that respect is quite evasive,, the respondent stating his belief that the terms of the contract were known to the Plaintiff, but not owning the fact. In addition to which, he alleges, that there is no privity between the Plaintiff and Swann, which would entitle him to redress for the injury sustained by the land, his claim for which is on Couch alone.
    *On the 21st June, 1821, Judge Coal-ter re-instated the Injunction.
    The Affidavits of Webber and Gibbs, were again taken by the Plaintiff, on due notice to the Defendants. There was no variance in the evidence of the first, except that in the last affidavit he estimated the injury from bad cultivation at $200. and the value of timber taken off, at $200 or $250. The second witness, Gibbs, deposed, that Couch called on him to take notice that he was willing to pay Webster for the timber cut off the land, and the damages sustained by bad cultivation, and it was to be left to disinterested neighbours to estimate the damage in both cases. He also expressed his opinion, that the land was much injured by the taking off the timber, it being a scarce article.
    The Court of Chancery, on the 25th February, 1822, gave the following opinion: “On motion of the Defendants by Counsel, to discharge the order awarding an Injunction in this cause, made by a Judge of the Supreme Court of Appeals, on the 21st day of June last, the Court being of opinion, that according to the plain letter of the Act, by which a Judge, or Judges of the Supreme Court of Appeals, may exercise original jurisdiction in granting an Injunction upon the original Bill, if refused by a Chancellor, yet such Judge or Judges, are not authorised in the opinion of this Court, by that Act, to grant another Injunction in the same case, after a dissolution in a Superior Court of'Chancery, although such Judge, or Judges may grant an appeal: such is the written Law: wherefore, the Court doth discharge the said order, as improvidently awarded.”
    The Plaintiff obtained a Supersedeas to the said Decree, from a Judge of this Court.
    Hay, for the Plaintiff in Error.
    Johnson, for the Defendants.
    
      
      Injunction — Adequate Remedy at Law. — In Shepherd v. Groff, 84 W. Va. 126, 11 S. E. Rep. 998. it is said: “There is another, and perhaps a stronger reason for denying equity jurisdiction, and that is that a complete and adequate remedy is afforded in a court of common law. where there is such a remedy at law, it is well settled that equity will not interpose by injunction, and, where the bill shows no ground of equitable jurisdiction, it should be dismissed. Surber v. McClintic, 10 W. Va. 236; Morehead v. De Ford, 6 W. Va. 316; opinion in Goolsby v. St John, 25 Gratt. 151; Poage v. Bell, 3 Rand. 586; Webster v. Couch, 6 Rand. (7a.) 519; High. Inj., § 30.”
      See further, monographic note on ''Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
    
      
       Set-Off — Unliquidated Damages. — To the point that unliquidated damages cannot be set-off in equity the principal case is cited in Cabell v. Roberts, 6 Rand. 584; Gilliat v. Lynch, 2 Leigh 505 ; Robertson v Hogshead, 3 Leigh 673; Harrison v. Wortham, 8 Leigh 304; Rosenberger v Keller, 33 Gratt. 495; Kinzie v. Rieley, 100 W. Va. 716, 42 S. E. Rep. 672.
      See further, monographic «off on “Set-Off, Recoupment and Counterclaim” appended to Anderson v. Bullock, 4 Muuf. 442.
      The principal case is also cited in. Fisher v. Burdett, 21 W. Va. 629.
    
   *October 15.

The PRESIDENT

delivered the opinion of the Court.

It cannot now be doubted, after repeated decisions of this Court, that from the refusal of a Chancellor to re-instate an Injunction upon new proofs of the allegations of a Bill, an appeal lies to any one of the Judges of this Court, and that the Chancellor erred in this case in dissolving the Injunction, on the ground that the order made by one of the Judges of this Court, re-instating the Injunction, was coram non judice. But unless the rules of pleading in Chancery are to be totally disregarded, he was correct in dissolving the Injunction, though ordered by a Judge of this Court.

The Bill, although it prays relief, is purely a Bill of Discovery, upon the express ground, that the Plaintiff was entirely ignorant of any testimony to prove its allegations, without the Answer ox the Defendant Couch, with whom the contract, to be set-off against the Judgment at Law, is alleged to have been made. His Answer makes no discoyery, but on the contrary negatives all the material allegations in •the Bill: but, if it had not, upon the proofs in the Record, a Court of Equity would have afforded no relief. The ground for relief is unliquidated damages for a substantive injury, the remedy for which was by a suit at Law, there being no impediment to it. It was nota matter of account, to be adjusted and set-off, either in the Court of Law in which, the Judgment was rendered, or in a Court .of Equity. The order dissolving the Injunction is therefore affirmed. 
      
      Absent, Junen Coalter.
     