Tilden v. Maslin , 5 W. Va. 377 ( 1872 )

BericsiiiRe, P.

The first and main objection urged against ■the decree appealed from, was that the court improperly sustained the-demurrers to the original and amended bill of the appellants.

It was maintained on their behalf, that each of the bills showed sufficient matter on its face for the jurisdiction of the court in the premises, and numerous authorities were cited in support of the position.

It appears, however, from the record, that the case was hoard without objection on its merits; and as all the material allegations of the bills which constitute the grounds for the injunction awarded are explicitly denied in the answer of the appellee, Maslin; andas the testimony in the cause clearly fails to establish them without deciding whether said demurrer should have been sustained or not, I think there was no -error, of which the appellants can complain, in dismissing the bill with costs and damages. Rossett vs. Grier, 3 West Va., p. 1.

It was insisted in the argument here that an account should have been ordered by the circuit court, to enable the appellant’, Tilden, to establish his alleged set-off and account against Seymour. But tlje uniform doctrine of courts of-equity is, tbat it is improper to order an account merely to afford a party an opportunity to establish, by testimony, the allegations of his bill. Lee County Justices vs. Faulkerton, 21 Gratt., 182.

The decree, therefore, must be affirmed, with costs and damages.

The other judges concurred.

Decree affirmed.