CHARLESTON.

#### Grobe *v.*Roup *et al.*

Submitted January 20, 1899

Decided April 22, 1899.

1. Injun *ctxon*— Affidavits—Dissolution.

It is error to dissolve an injunction on affidavits merely when by the pleadings the burden of proof is on the defendant moving-such dissolution, as the plaintiff has the right to cross-examine defendant’s witnesses and rebut their testimony, (p. 490).

2. Equity *Pleading*— Answer—Cross-Bill—Parties—Process.

An answer in the nature of a cross-bill praying the affirmative relief, which affects co-defendants, must make such co-defendants parties thereto, and, in default of the waiver thereof by such co-defendants, must have proper process issued thereon before a hearing can be had as to the matters contained in such answer, (p. 491.)

Appeal from Circuit Court, Cabell County.

Suit by John T. Grobe against C. W. Roup and others. From a judgment dismissing the bill as to Roup and the Pomeroy National Bank, plaintiff appeals.

*Reversed.*

Campbell, Holt & Campbell, for appellant. ■

Simms & ENSlow and C. E. Hogg, for appellees.

DeNt, President:

This is a controversy over one thousand eight hundred dollars of funds belonging to the firm of Grobe & Roup, now on deposit in the Huntington National Bank. *489It was here once before. See *Grobe*v. *Roup,*44 W. Va. 197, (28 S. E. 699), where the facts are fully set out. It was then held by this Court that, as the papers then stood, the plaintiff, John T. Grobe, had made out a *prima facie*case, and that, the injunction should be continued until the final hearing thereof. On the case being remanded the Huntington National Bank filed its answer, admitting substantially all the charges of the bill, except that it denied having any knowledge of the fraudulent intent of the partner, Roup, in transferring the fund to his individual credit and taking a certificate of deposit therefor in his own name, claimed it was an innocent holder of the fund, • and prayed that the court would decree as to who was the proper party entitled to the fund, —the partnership and its creditors, or the Pomeroy National Bank, the holder of the certificate. The respondent, then, without waiting for a final hearing of the cause, filed the affidavits of its officials as to want of notice of the firm’s equities, or the fraudulent intent of the partner in procuring its certificate, and moved a dissolution of the injunction. The plaintiff replied generally to such answer, and filed his own affidavit in contradiction of that of J. K. Oney, cashier of the respondent, and resisted such motion. The Circuit Court sustained the motion and dissolved the injunction,. and dismissed the bill as to respondent and the Pomeroy National Bank. From this decree the plaintiff, again appeals.

In the case of *Schoonover*v. Bright, 24 W. Va. 698, it is held that “an injunction will be dissolved on the hearing if the answer fully, plainly and positively denies all the material allegations of the bill on which the injunction was founded, a.nd there is no proof to establish allegations.” Hazl*ett*v. *McMillan,*11 W. Va. 466. *Petroleum Co.*v. *Rittenhouse,*12 W. Va. 313. This is a good law, but i.t is inapplicable to this case. Plaintiff’s bill set up a good case of fraud, and the circumstances surrounding it raised a *prima facie*notice thereof against-the Huntington National Bank. Without repelling any of these circumstances, the bank denies notice. This casts, the burden of proof upon it. “The fact of notice may be inferred from circumstances as well as provided by direct evidence, and, where the facts and circumstances are such as to raise a presumption of notice,the burden of proof *490“is shifted, and it devolves upon the defendant purchaser to prove want of notice. *Newman*v. *Chapman,*2 Rand. (Va.) 93; *French v. Loyal Co.,*5 Leigh, 685; 16 Am. Eng. Enc. Law, 790.” *Farley*v. *Bateman,*40 W. Va. 540, (22 S. E. 72). This rule applies especially in cases of fraud •depending for proof upon the facts and circumstances. The burden being shifted to the bank to prove want of notice,, it cannot do this by mere affidavits of witnesses, for the reason, if no other, that plaintiff lias the right to cross-examine them. In addition, the respondent’s •only material witness to establish want of notice (the cashier) is contradicted by the plaintiff’s affidavit, which leaves the facts and circumstances to control, which, as heretofore held by this Court, are sufficient to establish a *prima facie*case in favor of plaintiff. It was therefore error to dissolve the injunction until a full, fair hearing of the case on proofs could be had. *Noyes*v. *Vickers,*39 W. Va. 30, (19 S. E. 429); *Vreeland*v. *Stone Co.,*25 N. J. Eq. 140; *Wooton*v. *Smith,*27 Ga. 216; *Armstrong*v. *Town of Grafton,*23 W. Va. 50, 55; *Kerr*v. *Hill,*27 W. Va. 576, 605. If the defendant admits the equity in the bill, but sets up new matter of defense, on which he relies, the injunction will be continued till the hearing. 2 Tuck. Bl. Comm. 478. The proof of want of notice, in the light of the circumstances, is matter of defense, shifting the burden, as held in the former decision of this Court, to the respondent.

There is another matter in the way of the dissolution ■of this injunction. The Huntington National Bank still has the partnership fund under its control, and it now has full and complete notice not to pay it out to the delinquent partner or his order. In its answer it has presented no good reason why it should be permitted to do so in fraud of the partnership- It does not claim that it is liable now, or ever will be, to pay such fund to any one else. It says its certificate of deposit is held in the Pome-roy National Bank, and submits to the court the question of its negotiability, and apparently prays affirmative relief in relation thereto, in asking the court to determine to whom the funds should be paid, and for further and general relief. This answer is undoubtedly a bill of inter-pleader, in the nature of a cross bill. But it makes no parties, and is therefore fatally defective in this respect. *491On such an answer the court could decree no relief against the Pomeroy National Bank, for the reason it is not properly impealed. *Goff*v. Price, 42 W. Va. 384, (26 S. E. .287.) In this case it is held that “an answer under sec-ton 3d, chapter 125, Code, containing new matter constituting a claim for affirmative relief, may be taken for confessed as against.the plaintiff, but not against another •defendant, without service of process.” It would be improper to decide upon the negotiability of the certificate of deposit, especially as against the Pomeroy National Bank, unless it was so impleaded that it would be bound thereby, either as to such negotiability, or other equities that may arise between the two banks, and in which the plaintiff is not otherwise than incidentally interested. On the question of the negotiability of such certificates, as it must inevitably arise, counsel are referred to 5 Am. & Eng. Enc. Law (2d Ed.) 809. The decisions are collected on page 805. See especially the Alabama and Pennsylvania doctrine. *Patterson*v. Poindexter, 6 Watts *&*S. 227; *Davis*v. Miller, 14 Grat. 1, 18; *Bank*v. Hysell, 22 W. Va. 142, 146; *O'Neill*v. Bradford, 1 Pin. 390, 42 Am. Dec. 574, note. For the foregoing reasons, the decree complained of is reversed, and the cause remanded for further proceedings in accordance with the principles of equity.

*Reversed.*

*508Note by Brannon, Judge:

I decline to impose upon the defendant the large sum of eight hundred dollars for an injury to the plaintiff of which he was the author. He was a trespasser, riding upon the train after having been given notice not to get up on it, and he remained upon it after the conductor had demanded that he get off, which demand he persisted in disregarding. The company owed him no duty, except not to wantonly injure him. The agent of the conductor kicked his hand from the ladder; but what else could he do? He had a right to remove him; and, as the train was yet in the yard, moving only five or six miles an hour, the speed was not dangerous, nor was the force excessive under the circumstances. He was wedged in between the cars. Must the conductor stop the train? He says he could have jumped of with safety. He should and could have done so. I admit the company would be liable for a wrongful removal by the conductor, though I do not regard this removal wrongful. But it was done by an agent selected by the conductor, and he had no authority to select that agent. It is true the evidence tends to show that theconductor directed the act, and it is claimed to be the same as his act; but that is not sufficient to charge the company. The master is liable only when his agent had authority to employ a sub-agent. *Haluptzok*v. *Railroad Co.*(Minn.) 57 N. W. 144 (26 Lawy. Rep. Ann. 739).

Judge English, voted with me to reverse the judgment. An equally divided court affirms it.