46 W. Va. 488 | W. Va. | 1899
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.
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.” Hazlett 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
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.
Reversed.