
    *Simmons v. Simmons’ Adm’r.
    July Term, 1880,
    Wytheville.
    Absent Moncure, P.
    1. Agrents — Accounting-—Bill by Principal's Administrator — A bill in equity will lie, by an administrator of a principal, against the general agent of his intestate for a discovery and an account of the transaction of the latter with his principal.
    2. Appeal — Exceptions to Commissioner’s Report — Review.—The answer of a defendant in which no reference is made to a commissioner’s report, will not be regarded as an exception to said report; and where there are no errors on the face of the report, and no exceptions taken thereto in the court below, they cannot be taken for the first time in the appellate court.
    3. Pleading1 and Practice — Plea Piled to Answer — Harmless Error.: — With the answer of a defendant a bond of the plaintiff’s decedent is filed. The plaintiff filed no replication, but pleaded non est factum to the bond filed with the answer. On the evidence being heard, the court below decided that the bond was not the deed of the plaintiff. Held:
    While it was irregular and improper to have allowed a plea to have been filed to an answer, and the proper course was, for the plaintiff to have filed a general replication to the answer, accompanied by an affidavit, putting in issue the execution of the bond, which would have been sufficient to require the defendant to prove such execution, yet, as the plea, which was sworn to, can be now treated as an affidavit, as the parties took issue on it, and testimony, and the appellant has not been prejudiced by the irregular proceedings and trial on said plea as such, the decree will not now be reversed for such irregularities, substantial justice having been done between the parties.
    4. Witnesses— Competency — Intex*ested Party. — A witness who was not a party to the contract or transaction, which is the subject of investigation, is not disqualified on *account of interest only, although one of the original parties to such contract or transaction be dead, insane, or incompetent to testify by reason of infamy, or any other legal cause, and for that reason the other party is rendered incompetent to testify.
    5. Same — Same—Appeal.—Objection to the competency of a witness cannot be taken for the first time in the appellate court.
    This was a suit in equity in the circuit court of Floyd county, brought in October, 1874, by Montague H. Simmons, administrator of Delila Simmons, deceased, against Otey T. Simmons, to have an account of his agency in the management of her property. The bill charged that Delila Simmons, who was then quite old and somewhat infirm, and uneducated, by a regular power of attorney appointed Otey T. Simmons her agent to transact her business; that said agency continued until the death of said Delila Simmons in June, 1870; that as such agent Otey T. Simmons possessed himself of a large 'amount of personal property of said Delila Simmons which he sold and disposed of. &c., and the bill proceeds to set out different articles of property as corn, cattle, hogs, wheat, one horse, and other articles; and then charges that he took charge of and sold other property of Delila Simmons to a large .amount, which plaintiff was unable to specify particularly, and that he had collected a considerable amount of rents for and due her in money, in grain and other property. And he charges that Otey T. Simmons made no settlement with Delila Simmons on account of said agency in her lifetime, and has refused to settle with the plaintiff since her death, or to exhibit an account of his transactions as such agent. And he prays for a discovery from said Otey T. Simmons of his transactions as said agent; and that he be compelled to settle his account, and pay to the plaintiff whatever he is due on account thereof; and for general relief.
    *The bill was taken for confessed as to the defendant, and by a decree in December, 1874, Commissioner Morgan was directed to take and report the account of Otey T. Simmons, as attorney in fact and agent for Delila Simmons.
    The commissioner returned his report in April, 1875; by which he charged Otey T. Simmons as of 1868 for property of Delila Simmons taken and sold by Otey T. Simmons, as shown by an account filed by Delila Simmons’ administrator $870. The commissioner states that the plaintiff took the depositions of several witnesses before him, which prove the account to such an extent that he considered it proper to charge the defendant with the whole amount. And he says the defendant produced no vouchers for disbursements made by him, and no statement of his transactions, nor anything whatever relating to transactions before the commissioner. The depositions referred to were returned with the report.
    After the report of the commissioner was returned Otey T. Simmons filed his answer among the papers in the cause. He says the power of attorney was given in 1862, and returned to Delila Simmons previous to 1867. As to some of the articles mentioned in the bill he says he has no recollection. As to others he paid for them; and as to others he admits having received them. He says that at the beginning of the late war Delila Simmons, his mother, was an old widow, and had no one with her but two small negroes, neither of whom was able to labor; that she had but little, save a poor farm and a little stock; that he had to live with his mother during the first year of the war, as she was afraid to live alone; that during the whole of the war he had many things to do for his old mother; that he paid her taxes, and on a number of occasions paid other sums of money for her. In fact he *to a very great extent supported his mother and the two negroes during the war. He also says that on the 23d of April, 1870, he made a full, fair, complete and honest settlement with his mother, and she fell in debt to him in the sum of $247.50, and executed her bond for the same, which he exhibits as a part of his answer. And he says that in May, 1857, his mother executed to himself and R. M. Simmons a bond for $15 as executors of T. W. Simmons, deceased, and that he accounted with the estate for the same. And he exhibits it as a part of his answer.
    At the August term, 1875, the plaintiff, instead of filing a replication to the answer, filed a plea denying that the bond for $247.-50 filed with the answer, was the bond of Delila Simmons, or was executed by her. And this plea was sworn to by the plaintiff.
    The cause came on to be heard on the 5th of August, 1875, upon the papers formerly read, the report of Commissioner Morgan, the answer of the defendant, filed in the papers, exhibits filed therewith, the plea of non est factum of complainant, tendered to one of the bonds filed with defendant’s answer, the objection of the defendant to the reception of said plea, and depositions of witnesses. On consideration of all of which, and there being no exceptions to Commissioner Morgan’s report, the same is confirmed; and the court overrules the objection of the defendant to the filing of plaintiff’s plea aforesaid, and allows the same to be filed. The decree then proceeds to state that after the court had allowed the plaintiff’s plea to be filed, and his answer filed among the papers had been treated as the defendant’s answer, he had tendered as his answer in the cause, the paper B sworn to before J. P. Jett, on the 5th of August, 1875, and asked leave to file the same; which was refused by the court. This paper B is substantially the same as the answer before filed. *Defendant then asked leave to withdraw the bond to which the plea of non est factum was allowed, so far as the same is filed with the first answer as a set-off; which was refused by the court; and he was allowed until the next term to take issue on the plea of non est factum.
    The cause came on again to be heard upon the papers formerly read, general replication to the plea of non est factum, and depositions of witnesses, when the court held that the bond for $247.50 was not the deed of Delila Simmons, and decreed that the plaintiff recover of the defendant Otey T. Simmons, the sum of $870 with interest from the 1st of April, 1870, and his costs, subject to a credit of $15, with interest thereon from the 15th of November, 1857. the bond of Delila Simmons to Otey T. Simmons and R. M. Simmons filed with defendant’s answer. And thereupon Otey T. Simmons applied to a judge of this court for an appeal, which was allowed. There was an objection taken in this court to the testimony of three witnesses introduced by the plaintiff, who were the sons and a son-in-law of Delila Simmons.
    Taylor & Phlegar, for the appellant.
    William Terry and J. L. Tompkins, for the appellee.
    
      
      Principal and Agent — Accounting-— Equity- Jurisdiction. — Huff v. Thrash, 75 Va. 546, citing principal case; Vilwig v. B. & O. R. Co., 79 Va. 449, citing principal case.
    
    
      
      Appeal — Commissioner’s Report — Exceptions — Practice.—Reports not excepted to in the lower court, cannot be impeached before the appellate court in relation to matters which may be affected by extraneous testimony. Liberty Sav. Bank v. Campbell et al 75 Va. 534, citing principal case; 4 Min. Inst. (2nd Ld.) 1386, 1387, and cases cited; Brewis v. Lawson, 76 Va. 36; Wimbish et ux. v. Rawlins' Ex’or et al., 76 Va. 48; Universal L. Ins. Co. v. Binford et al., 76 Va. 103; Morrison’s Ex’or et al., v. Householder’s Adm’r et al., 79 Va. 627; Ashby v. Bell’s Adm’r, 80 Va. 811; Nickels’ v. Kane’s Adm'r, 82 Va. 309; McComb v. Donald’s Adm’r, 82 Va. 903; Cralle v. Cralle, 84 Va. 198; Robinson v. Allen, 85 Va. 721; White v. Johnson, 2 Munf. 285; Evans v. Shroyer, 22 W. Va. 584; Estill v. McClintic, 11 W. Va. 399; Sandy v. Randall, 20 W. Va. 251. The principal case was distinguished in Kyle v. Conrad, 25 W. Va. 772.
    
    
      
      Pleading:. — As to what derial is requinte under Code of 1873, ch. 167, §§ 38, 39, wheie t..e bill or other pleading alleges the making, endorsement, assignment or acceptance of any writing, see Coles et ux. v. Hurt, 75 Va. 380, citing leading case.
      Equity Pleading' — Want of Replication.— Where defendant has taken depositions as if there had been a replication, the decree shall not be reversed for want of a replication. Code 1873, ch. 177, § 4; Jones v. Degge, 84 Va. 685; Kern, Barr & Co. v. Wyatt & Co., 89 Va. 885; 4 Min. Inst. (2nd Ed.) 1330 et seq.
      
    
    
      
      Witnesses — Interest — Competency. —A party in interest and on the record is not incompetent to testify in relation to a contract to which he is not a party, though one of 'the parties to the contract is dead, and the other party to the contract is incompetent to testify. Knick et al. v. Knick, 75 Va. 12, éiting leading case; 4 Min. Inst. (2nd Ed.) 766; Hall v. Rixey, 84 Va. 790.
    
   BURKS, J.,

delivered the opinion of the court.

The objection under the first assignment of error by appellant, vjho was defendant in the court below, that the complainant’s only remedy for the grievances set out in the bill was in a common law forum, is not well founded.

The bill was filed to have a discovery, account and settlement of the transactions of the defendant as general agent for several ysars. It is not the case of *a single money demand, which might conveniently and should be enforced in a court of law, nor of mutual demands merely. of which equity would take cognizance (2 Rob. Prac., Old Edn. 4), but it is a case involving a trust, where the fiduciary character of the employment imposed upon the person employed the duty of keeping accounts and preserving vouchers. It is well settled that equity has jurisdiction in such a case. Zetelle v. Myers, 19 Gratt. 62; Coffman v. Sangston, 21 Gratt. 263; Thornton v. Thornton, 31 Gratt. 212.

The account sought by the bill was taken and stated by a commissioner under the order of the court. His report was confirmed, and the decree complained of was based on that report. Objections to the decree for alleged errors in the report, not appearing on the face of it, to avail in this court, must be founded on exceptions to the report taken in the court below.

There are no errors on the face of the report, and no exceptions to it were taken below. Reports not excepted to cannot be impeached before an appellate tribunal in relation to matters which may be affected by extraneous testimony. A different rule would lead in practice to surprise of parties litigant, and often result in great mischief and injustice. 2 Rob. Prac. (Old Edn.), 383 and cases there cited; Peters v. Neville’s Trustee, 26 Gratt. 549; Cole’s Committee v. Cole’s Adm’r, 28 Gratt. 365, 370.

It is contended, however, for the appellant, that his answer to the bill operated an exception to the report which had been previously filed. Certainly it is not the proper function of an answer to draw in question and test the correctness of a commissioner’s report made in the progress of the cause. If it be admissible in any case to incorporate exceptions to such report in the answer, they must at least have all the requisites of such exceptions taken and filed in the usual way.

^Exceptions to a master’s report are said to be in the nature of special de-

murrers, and the party objecting must point out the error, otherwise the part not excepted to will be taken to be admitted. 2 Dan. Chanc. Prac. (4th American Edn.), 1316, note 4 and cases there cited. In all cases where exceptions are necessary at all, they should specify with reasonable certainty the particular grounds of objection relied on, so as to enable the opposing party to see clearly what he has to meet, and the court what it has to decide. Crockett v. Sexton, 29 Gratt. 46.

Appellant’s answer is directed only to the bill. Some of the allegations it admits in whole or in part; some it denies; while others are left unnoticed and unanswered. It presents no objections to the commissioner’s report — makes no complaint of it — specifies no errors. It does not even allude to it, directly or indirectly. So far as appears, neither the court, the parties opposite, nor their counsel, were given to understand that it was intended or considered as an exception to the report. Hencetherecitalinthe'decree, that there were “no exceptions.” For an appellate court to treat such an answer as an exception would be giving license to parties to set traps for their unwary adversaries.

It is needless, therefore, to inquire in this case whether the answer to the bill was responsive or not, or how far and in what respects it was responsive, or whether the evidence was sufficient to sustain the commissioner’s report, as it is manifest from a mere glance at the record that the conclusions reached by the commissioner might have been varied by extrinsic proof, which might have been adduced if exceptions had been filed.

It is also contended for the appellant that it was error in the court to confirm the commissioner’s report *before deciding the issue made on what is called the plea of non est factum. It was certainly error to allow any such plea to be. filed. When the defendant filed his answer, if the complainant deemed it sufficient, he should have taken issue upon it by general replication; or, if he chose to incur the hazard of so doing, he might have had the cause set for hearing on the bill and answer without replication; or, if there was new matter in the answer making it proper, he might have filed .a supplemental bill. Onacranother.ofthesemethods he was bound to pursue. He had no right to file a plea to the answer. A plea (in a technical sense) of the complainant to defendant’s answer is an anomaly in the equity practice. If he had filed a general replication, it would have been a general denial of the truth of the defendant’s answer, and of the sufficiency of the matter alleged in it to bar the complainant’s suit, and an assertion of the truth and sufficiency of the bill. Story’s Eq. Plead., § 878. Under such replication alone, it would have devolved upon the defendant to prove the execution of the bonds filed with his answer and relied on as set-offs, but for the statute, Code of 1873,. chap. 167, § 39, which provides that “where a bill, declaration, or other pleading alleges that any person made, endorsed, assigned, or accepted any writing, no proof of the handwriting of such person shall be required, unless the fact be denied by an affidavit with the answer, plea, or other pleading which puts it in issue.”

The effect of this statute was to relieve the defendant in this case from proving the execution of the bonds referred to, unless the replication was attended with the affidavit provided by the statute.

Unless therefore the complainant intended to admit the execution of the bonds, it behooved him to put in the replication (if not dispensed with by subsequentproceed-ings) -with .the affidavit required. No formal replication was filed, but the failure to file it will be regarded in this court as immaterial, the defendant having proceeded to take depositions as if there had been a replication. Code of 1873, ch. 177, § 4. See Cocke v. Minor, 35 Gratt. 346. When therefore the paper, called a “plea,” was tendered, it might and should have been received and treated as an affidavit merely (for it was sworn to) and not as a olea. It seems, however, the defendant took issue upon it as a plea; both parties took evidence touching the matters involved, and the. court determined the question in issue. This was an irregular proceeding; but if the appellant was not prejudiced by it, he cannot successfully complain of the irregularity. The statute last cited (Code of 1873, ch. 177, § 4), expressly provides that a decree shall not be “reversed at the instance of a party who has taken depositions, for an informality in the proceedings, when it appears that there was a full and fair hearing upon the merits, and that substantial justice has been done.” We are of opinion, that the appellant was not prejudiced, either by the confirmation of the report, reserving the issue as to the bond (no exceptions having at any time been filed to the report), or by the mode in which the execution of the bond was put in issue. Treating the “plea” as an affidavit, the mode of determining the matter in dispute would have been the same in substance as that pursued, namely, the decision of the matter by the court on depositions taken on both sides.

The onus was on the appellant to prove the execution of the bond. If he established it satisfactorily, he was entitled to the benefit of the fact so established notwithstanding the confirmation of the report, as the question as to the bond was left open by the decree confirming the If he failed in his proof, there *was no error to his prejudice in confirming the report to which he never accepted. The circuit court was of opinion, that he did so fail; and we are disposed to concur in that opinion. At all events, we cannot say from the record, that he erred in his judgment, and as the question decided was one of fact, we cannot overrule the decision unless we were convinced, as we are not, that substantial error was committed.

Objection was made in argument, to the competency as witnesses of William T. Lester, R. M. Simmons, and Montague Simmons, whose depositions were taken on behalf of the complainant. Two of these witnesses testified, after the confirmation of the report, touching the question reserved as to the execution of the bond.

It would seem to be a sufficient answer to this objection, that it does not appear that it was first made in the court below. Notwithstanding some expressions in decided cases, which seem to concede that objections to the testimony of a witness on the ground of his incompetency may be properly made in this court although not made, or considered, or passed upon in the court below, we are of opinion, that such objections, unless, first made in the court below, cannot be relied on here, for the reason that, if allowed, parties might be taken by surprise. If made in the court of original jurisdiction: First. The incompetency might in some cases be removed by release or otherwise; Second. If not removed and the witness be excluded, the loss of his testimony might perhaps be supplied by other evidence. See what was said by Judge *Moncure in Fant v. Miller & Mayhew, 17 Gratt. 187. Also Beverly v. Brook & als., 3 Leigh 435; Hord’s adm’r v. Colbert & als., 28 Gratt. 49, 54, 55, 56; Statham & als. v. Ferguson’s adm’r & als., 25 Gratt. 28, 38.

But even if the objection had been made in the circuit court, it would have been without effect. The witnesses, although they may have had an interest in the result of the suit, were not parties to the contract or transaction which was the subject of investigation. Disqualification on account of interest is removed by the statute, and if the interested witness was not a party to the contract or other transaction which is the subject of investigation, his interest merely does not disqualify .him, though one of the original parties to the contract or transaction, the subject of investigation, be dead, insane, or incompetent to testify by reason of infamy, or any other legal cause, and for that reason the other party is rendered incompetent to testify. Code of 1873, ch. 173, §§ 31, 33. The contract or transaction, the subject of investigation in this case, was wholly between the appellant and the complainant’s intestate. It is not pretended, that either of the witnesses was a party to such a contract or transaction.

The correctness of the above construction of the statute, if not directly and expressly determined in any previous case, is a necessary deduction from the construction given to the same statute in the numerous decisions of this court heretofore made, many of which are reported. Martz’s ex’ors v. Martz’s heirs, 35 Qratt. 361, is very nearly, if not quite, a case in point.

The refusal of the court to permit the appellant to file a second answer to the bill was not assigned as error either in the petition for appeal or in the oral argument al bar. It is plain, that there was no error in such refusal, and it is therefore deemed unnecessary to notice it further.

*For the reasons stated, we are of opinion, that there is no error, to the prejudice of the appellant, in the decree appealed from, and that it should be affirmed.

Decree affirmed. 
      
      Note by the JubGE. — A decision of this court to the same effect was rendered several years ago, as I am informed by Judge Staples, who delivered the opinion, which was not reported (though a report was ordered), the manuscript -having been lost or mislaid by some means or other.
      Since the above was written, I have seen the case of Baxter v. Moore, 5 Leigh 219, in which the decision was the same way on the very point now raised in argument here.
     