
    *Beatty v. Smith and Thompson.
    Friday, April 29, 1808.
    Answers in Equity — Denial of Allegations in Bill — Effect. — Where the answer of the defendant in Chancery contains a direct and positive denial of the allegations in the complainant’s hill, it cannot he outweighed hy the deposition of one witness only, unsupported by corroborating circumstances.
    Damages on Affirmance of Decrees — Construction of Statute. — The act of the 20th of January, 1804, which gives damages and interest on the affirmance of appeals from decree in Chancery, does not apply to appeals depending at its 'commencement. The same principle applies to injunctions.
    On an appeal from a decree of the Superior Court of Chancery for the Staun-ton District, pronounced the 1st of April, 1803.
    Henry Beatty exhibited his bill of injunction in the late High Court of Chancery against John Smith and Cornelius Thompson, to be relieved from a Judgment obtained against him by Smith, in the District Court of Winchester, upon a bond executed by Elias Langham and the said Beatty as his surety, conditioned to indemnify the said Smith against a mortgage with which a tract of land was incumbered, that had been sold by Eangham to Smith.
    The principle ground of equity relied on by Beatty was, that he had been induced to become bound for Eangham under assurances that he would be released in a few days; that Smith had agreed to substitute another bond with security for his; and that, in fact, Eangham did execute another bond to Smith, with Thompson, his security, which was accordingly excepted. Ten years having elapsed before Beatty heard any thing of the bond, although he saw Smith very frequently, he concluded that the bond had been cancelled.
    The answer of Smith positively denied all the allegations of the bill, and stated that he accepted another bond executed by Eangham and Thompson as additional security only; which he had a right to expect, as he declared himself, in the first instance dissatisfied with the sufficiency of Beatty.
    
      Thompson, in his answer, stated, that when he entered as the security of Eung-ham, he understood that it was only as additional security with Beatty, whom he considered equally bound.
    Several depositions were taken, with a view to invalidate the answers of Smith and Thompson, and tending to prove Thompson’s own conviction, that he was bound to pay the * whole debt. He did pay to the mortgagee one moiety' of it, without suit; and judgment was afterwards obtained by Smith against .Beatty for the full amount of the damages sustained in consequence of a decree subjecting the land to be sold to satisfy the mortgage. To be relieved against which judgment was the object of the present suit.
    Eangham, the principal obligor in both the bonds, having removed to the North Western Territory, no judgment was obtained against him; and his deposition was taken by Beatty, to be introduced as evidence in the cause. It was the only deposition which fully supported the allegations of the bill; and the sole question was, whether he was a competent witness, In this case. The answers having denied all the equity of the bill, which was unsupported by evidence other than the deposition of Eangham, who, in the opinion of the Chancellor, was an incompetent witness, the injunction was dissolved, except as to one moiety of the debt for which he considered Thompson liable.
    An appeal to this Court was allowed to Beatty, by the Chancellor in vacation, and the appeal-bond was executed on the 4th of May, 1803.
    The cause was argued on the competency of Eangham as a witness. But the Court, without deciding that point, affirmed the decree of the Superior Court of Chancery, on the ground that, even if he were a competent witness, his deposition, unsupported by pregnant circumstances, would not outweigh the positive answer of Smith, denying the equity of the bill.
    
      
      See monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571. The principal case is cited in Wise v. Lamb, 9 Gratt. 300.
    
    
      
      The principal case is cited in Burns v. Hays, 44 W. Va. 505, 30 S. E. Rep. 102.
    
   The following is the opinion of

JUDGE TUCKER,

delivered on Tuesday, the 5th of May.

Without deciding upon the competency of Mr. Eangham, the only' witness by whom the answer of the defendant, John Smith, is at all impeached, I am of opinion, that that answer contains too direct and positive a denial of the '^allegations of the plaintiff’s bill, and of the equity set up by it, to be overruled by the deposition of a single witness, unsupported, as it seems to me, by any pregnant circumstances to invalidate the answer; and that the decree be affirmed.

JUDGES ROANE and FEEMING concurring — By the whole Court, (absent Judge Eyons,) the decree of the Superior ■Court of Chancery affirmed.

The entry in this case, (as in several preceding ones,) was, that the decree of the Superior Court of Chancery be affirmed, and that the appellees recover their costs; without saying any thing as to damages or interest, it having been settled, that the act of the 20th of January, 1804, which gives damages at the rate of ten per cent, on the amount of decrees in Chancery, including costs, from the time of the appeal until affirmance, and legal interest after-wards, does not extend to appeals which were depending when the act took effect, which was on the 1st of May, 1804. The same principle has been adopted in the Superior Court of Chancery for the Richmond District, as to appeals from decrees of the County and Corporation Courts, and injunctions awarded by the Judge of that Court; the above-mentioned act being confined in its operation to cases which have accrued since its commencement. 
      
       See Rev. Code, vol. 3, c. 39, p. 39.
     