Vanbibber v. Beirne

Citations

• 6 W. Va. 168
• 1873 W. Va. LEXIS 23

Syllabus

<p>1. Every estoppel, because it concludeth a man to allege the truth, must be certain to every intent, and not to be taken by argument or inference.</p> <p>2. Whore actual fraud is relied on, to authorize a recovery, the fraud should be clearly proven.</p> <p>8. Every averment necessary to entitle a plaintiff to be,entertained in a Court of equity must be contained in the bill.</p> <p>4. The 35th section of chapter 125 of the Code of this State provides for the filing of a special -replication, in a suit in equity, -where the defendant in his answer alleges new matter, constituting a claim for affirmative relief: But this provision in this respect applies , only when the answer sets up new matter, for which a cross bill might be filed, and does not change the general practice as to pleading in equity in other cases.</p> <p>5. If it appear by the proper pleadings supported by proof that the facts on which the cause of action is founded were exclusively in the knowledge' of tlieylefendant; that he fraudulently concealed those facts; and that by such ways and moans ho defeated and obstructed the plaintiff from bringing his action within the time limited, the statute of limitations is answered.</p> <p>'6. To an answer setting up the statute of limitations, the plaintiff files his replication alleging that he did bring and prosecute his suit in this behalf, within five years from the time of the .defendant’s liability to be sued, and notice to the plaintiff of the matter complained of in the bill. This replication will not avoid the statute of limitations.</p>