#### *Clarke v. Tinsley’s Administrator.

May, 1826.

Chancery Practice — No Issue — Order for an Account.*— In a Chancery cause, when a replication has been entered, and afterwards withdrawn, it is error for the Court to order an account, or to render a decree, until a new issue is made up. A deposition' which had heen taken„while the replication was standing;, cannot be read, after it is withdrawn.

Same — Answer—Exceptions. — When exceptions are filed to an answer, they must be disposed of, before any further proceeding's can take place in the cause. ,. i i xU&S! c— toste*

This was an appeal from the Chancery Court of Eynchburg. The whole subject is so fully unfolded in the following opinion, that nothing more need be said. Wickham, for the appellant.

No Counsel, for the appellee.

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The principal case is cited with approval in Bassett v. Cunningham, 7 Leigh 410; Hartman v. Evans, 38 W. Va. 672, 18 S. E. Rep. 811, and distinguished in Richardson v. *Donehoo, 16 W.*Va. 708.

*

The President and Judge Cabell absent.

May 24.

JUDGE CARR

delivered his opinion.

Tinsley’s administrator filed his bill against Clarke, a former Sheriff of Pittsylvania, stating, that his intestate had sent by mail to the defendant, Clerks’ tickets for collection, keeping a list, and sending on one for the Sheriff to enter a receipt on, and return: that no receipt has been returned, so that he is without remedy at law. The bill, therefore, prays a discovery, an account, and decree for what may be found due. The defendant filed a very vague and unsatisfactory sort of answer, stating the length of time that his deputies did the business: that he has no doubt, if they ever received any fee bills, they have accounted for and paid them: that some of them are removed, some dead, and he does not think he ought to be sued after such a length of time. (He was Sheriff in 1808 and 1809, and deputy in 1810. The bill was filed in 1814.) At the *May*Rules, 1815, the answer was filed, the plaintiff replied to it, and a commission issued. Under this commission, the deposition of Richard Jeffries was taken. At the October Term, 1815, by consent, the replication was set aside, and leave *given the plaintiff to amend his bill, and to the defendant, to • amend his answer. The amended bill calls for a more particular answer ; that the defendant may say, whether he did not, while Sheriff, in 1808-9, or while deputy, receive tickets from Tinsley, as per list filed with the bill; whether he or his deputies did not keep books, and if so, is there not some entry of these there ; and calls for extracts, &c. &c. The amended answer gives rather a lame account of the matter, speaks of the books, of tickets being entered in them, of payments made, &c. but produces no extracts. This answer was filed at the May Rules,. 1817, and a replication and commission taken; and at the April Rules, 1818, the cause was set for hearing by the plaintiff. At the May Term, 1818, for reasons appearing to the Court, the replication is set aside, and the cause remanded to the Rules. At the October Rules, 1818, the plaintiff filed exceptions to the answers, and gave a Rule for a better answer; and the defendant insisting on the sufficiency of his answers, the plaintiff set down his exceptions for argument. Then comes this entry, at the May Term, 1819. “This cause came on this day to be heard on the bills, answers, exhibits and the examination of a witness, and upon the exceptions to the answers; on consideration whereof, the Court doth refer the accounts to a commissioner, who is to examine, &c.” in the usual style. The commissioner reported a balance against the defendant, stating that the account was founded on the bill and answer, and deposition of Jeffries. After the report returned, but before it was acted on, the defendant took two depositions ; one of his clerk, stating the information given by the books; the other oí a witness, proving that the former was his clerk, while he was Sheriff. The Chancellor, in October, 1820, renders a decree on the report, as one to which there was no-exception.

The course pursued at the hearing, as the record terms it, -when the case came on upon the exceptions, was a singular one.

The replication having been withdrawn, and *the cause sent to the Rules; all which had been done under the replication, was undone; and among other things, the deposition, which had been taken, was suppressed. When tne cause came again before the Court, it was not for a hearing; there was no issue between the parties on the main subject. It was simply an appeal to the Court, to decide whether the answer was sufficient, or not. If it was thought sufficient, the exceptions would be over-ruled, and the cause sent back for further proceedings, to give the plaintiff a chance to reply, and take evidence. If the answers were deemed insufficient, the exceptions would be sustained, and the defendant ordered to put in a better answer; and the cause would be sent back to be matured for hearing. Instead of doing either of these things, the Chancellor simply directs an account, as on a hearing; and thus sends the matter to the commissioner in that crude state, without a decision whether the exceptions were good or bad, without any issue between the parties, without giving the de~ *109fendant a chance to support his answer by evidence, and with the deposition to be read against him, which, by the subsequent proceedings, had been annulled. This was no doubt an oversight, occurring in the hurry of business. If the course pursued by the Court, could be considered as over-ruling the exceptions, then the answer, standing unreplied to, must be taken as true in every particular; but the record states, that the deposition of Jeffries was read, and the commissioner reports, that it was one of the grounds of his account. The evidence afterwards taken for the defendant, is not regarded in the slightest degree by the Chancellor; but the report is confirmed, simply because unexcepted to. Whéther a formal exception was necessary, when the commissioner stated that it was founded wholly on the bill, answer and deposition, and when the defendant had taken evidence to impeach it, I shall not decide, as it is unnecessary. The proceeding upon the exceptions to the answer, was wholly irregular; and I think the decree should be reversed, and the cause sent back, the *proceedings set aside subsequent to the exceptions to the answer, and those exceptions to be set down for hearing by the Chancery Court.

JUDGE COAUTER and GREEN concurred, and the decree was reversed, &c.*