Woods, Judge:
To the foregoing judgment, four grounds of error are assigned, — (1.) In overruling the demurrer to the declaration. (2.) In rendering against the defendants the judgment of $1,000. (3.) In overruling their motion to continue the cause as to said $1,000. (4.) In rendering judgment without evidence upon inspection of the declaration and statement of set-offs, and affidavit of the defendant Hays.
The first question presented for consideration is whether this Court has jurisdiction to review by writ of error the judgment complained of. If this judgment is not a final judgment, within the meaning of the first clause of the first section of chapter 135 of the Code, tins writ of error must be dismissed as having been improvidently awarded, although the defendant in error has neither suggested nor argued such objection. So much of said chapter as affects the question of jurisdiction in this case, is as follows: “A party to a con[111]*111troversy in any Circuit Court may obtain from the Supreme Court of Appeals, or a judge thereof in vacation, a writ of error or supersedeas to a judgment or decree of said court, in civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars, wherein there is a -final jttdgment or decree.” It is admitted that, at common law, the court, in any given case, could pronounce but one judgment possessing this character of finality, for its judgment was the end of controversy as to the whole cause of action. There was an apparent exception to this well-established rule, allowed in actions where all the defendants were jointly liable. In such action, all the defendants had the right at any time to appear in court, in term, and confess judgment for the whole of the plaintiff’s demand, but less than all of the defendants could not do so, for his right to a joint judgment, against all who were jointly liable, was perfect, and he could not without his consent be deprived of this right by part of the defendants appearing in court and confessing judgment, even for the whole, much less for a part of his demand. Sometimes, however, one of the defendants, not desiring to resist the plaintiff’s demand, was willing to acknowledge the plaintiff’s action as to him, leaving the other defendants to carry on the controversy. In such case, even a formal judgment, upon buch confession against the party making the same, was in fact no judgment, for it was liable to be diminished or wholly set aside, by the judgmeut which might be entered upon the verdict rendered on the trial of the issues made by the other defendants ; because, in such case, the common law required that the same judgment should be entered against all of the defendants. Snyder v. Snyder, 9 W. Va. 415; Hoffman v. Bircher, 22 W. Va. 537; Jenkins v. Hurt, 2 Rand. (Va.) 446; Taylor v. Beck, 3 Rand. (Va.) 316; Peasley v. Boatwright, 2 Leigh 198; Early v. Clarkson, 7 Leigh 83. There Avas no authority to enter a judgment in favor of the plaintiff, even upon confession of all the defendants, for less than the whole of his demand, unless the plaintiff accepted such confession of part, and discontinued his action as to the residue; for, as but one judgment could be entered in the cause, he could not ijrosecute a demand for AAdiich no judgment could be en[112]*112tered. Such continued to be the law of Virginia, until the adoption of the Code of 1849, when this common-law rule was changed by section 8 of chapter 172, which is identical with section 8 of chapter 126 of the Code of West Virginia. This section is in these words : “If the defendant file a plea or account of set-off, which covers or applies to a part of the plaintiffs demand, judgment may be forthwith rendered for the part not controverted and the costs accrued until the filing of the plea or account, and the case shall be proceeded with for the residue, as if the part for which judgment was rendered had never been included therein. And if, in addition to such plea or account, the defendant pleads some other plea going to the whole, or residue of the demand, the case shall not be continued as to the part not controverted by plea or account of sets-off, unless the additional plea be also verified by affidavit, or good cause be shown for such continuance.”
To me it seems perfectly clear that the sole purpose of this enactment was to change the common law, so that in all actions where, but for such plea or account of sets-off, the plaintiff would be entitled to a judgment for specific personal property, or for a certain sum of money, it should thenceforth be lawful for the plaintiff to demand, and for the court to render in his favor, a judgment for such part of his claim or demand as the defendant by his plea or account had failed to controvert, and thus place the same beyond all controversy, in the same manner, and to the same extent, as if it had never been included therein; and I am unable to conceive how this purpose could have been more clearly expressed, than by the terms used in this section of the statute.
This judgment, so rendered for the uncontroverted part of the plaintiffs demand, bears no analogy to the judgment entered upon the acknowledgment of one of the defendants, jointly bound with other defendants, who still continue to resist the plaintiffs demand; for, as I have already shown, such a judgment is in fact no judgment, for it possessed neither conclusive'ness nor finality, for it was liable to be diminished or wholly set aside, by the result of the trial of the issues with the other defendants. But, under the provisions of section 8 of chapter 126; the judgment so rendered [113]*113•for the uneontroverted part of the plaintiff’s demand can never be diminished by the result of the trial as to the residue thereof. The amount for which such judgment has been rendered has passed out of the controversy, as effectually and completely as “if it had never been included therein,” and is therefore of necessity final and conclusive between the parties. Qxwad hoe, it is the end of controversy, and nothing remains to be done, except to carry the same into execution. For these reasons I am clearly of opinion that the judgment complained of is to all intents and purposes a final judgment., and may be reviewed by writ oí' error or sxc-jpersedeas.
To the plaintiff’s action appear to have been pleaded three pleas,viz.: “dYon damnificatusj'' “conditions performed,” and “payment,” accompanied with a specification of the several items of payment and sets-off which they desired, to prove on the trial, but it does not appear that any of them was verified by affidavit, as required in certain cases specified in section 8 of chapter 126 of the Code. The pleas themselves, are not set out in the record, but as they were neither demurred to, nor otherwise objected to, and as issues were joined on all of them, we must presume they were in proper form.
The plea of “ non damnifieatus,” if it had been objected to, would have been rejected, as it presented no ground of defense to the action, as the condition of the official bond of the sheriff on which the action was founded was in no proper sense a bond of indemnity.
The plea of “ payment,” which inform was an answer to the whole declaration, was, in effect, by the specification of par’ tial payments and sets-off accompanying it, narrowed down to an amount less than one third of the sums in the declaration demanded.
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Woods, Judge:
To the foregoing judgment, four grounds of error are assigned, — (1.) In overruling the demurrer to the declaration. (2.) In rendering against the defendants the judgment of $1,000. (3.) In overruling their motion to continue the cause as to said $1,000. (4.) In rendering judgment without evidence upon inspection of the declaration and statement of set-offs, and affidavit of the defendant Hays.
The first question presented for consideration is whether this Court has jurisdiction to review by writ of error the judgment complained of. If this judgment is not a final judgment, within the meaning of the first clause of the first section of chapter 135 of the Code, tins writ of error must be dismissed as having been improvidently awarded, although the defendant in error has neither suggested nor argued such objection. So much of said chapter as affects the question of jurisdiction in this case, is as follows: “A party to a con[111]*111troversy in any Circuit Court may obtain from the Supreme Court of Appeals, or a judge thereof in vacation, a writ of error or supersedeas to a judgment or decree of said court, in civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars, wherein there is a -final jttdgment or decree.” It is admitted that, at common law, the court, in any given case, could pronounce but one judgment possessing this character of finality, for its judgment was the end of controversy as to the whole cause of action. There was an apparent exception to this well-established rule, allowed in actions where all the defendants were jointly liable. In such action, all the defendants had the right at any time to appear in court, in term, and confess judgment for the whole of the plaintiff’s demand, but less than all of the defendants could not do so, for his right to a joint judgment, against all who were jointly liable, was perfect, and he could not without his consent be deprived of this right by part of the defendants appearing in court and confessing judgment, even for the whole, much less for a part of his demand. Sometimes, however, one of the defendants, not desiring to resist the plaintiff’s demand, was willing to acknowledge the plaintiff’s action as to him, leaving the other defendants to carry on the controversy. In such case, even a formal judgment, upon buch confession against the party making the same, was in fact no judgment, for it was liable to be diminished or wholly set aside, by the judgmeut which might be entered upon the verdict rendered on the trial of the issues made by the other defendants ; because, in such case, the common law required that the same judgment should be entered against all of the defendants. Snyder v. Snyder, 9 W. Va. 415; Hoffman v. Bircher, 22 W. Va. 537; Jenkins v. Hurt, 2 Rand. (Va.) 446; Taylor v. Beck, 3 Rand. (Va.) 316; Peasley v. Boatwright, 2 Leigh 198; Early v. Clarkson, 7 Leigh 83. There Avas no authority to enter a judgment in favor of the plaintiff, even upon confession of all the defendants, for less than the whole of his demand, unless the plaintiff accepted such confession of part, and discontinued his action as to the residue; for, as but one judgment could be entered in the cause, he could not ijrosecute a demand for AAdiich no judgment could be en[112]*112tered. Such continued to be the law of Virginia, until the adoption of the Code of 1849, when this common-law rule was changed by section 8 of chapter 172, which is identical with section 8 of chapter 126 of the Code of West Virginia. This section is in these words : “If the defendant file a plea or account of set-off, which covers or applies to a part of the plaintiffs demand, judgment may be forthwith rendered for the part not controverted and the costs accrued until the filing of the plea or account, and the case shall be proceeded with for the residue, as if the part for which judgment was rendered had never been included therein. And if, in addition to such plea or account, the defendant pleads some other plea going to the whole, or residue of the demand, the case shall not be continued as to the part not controverted by plea or account of sets-off, unless the additional plea be also verified by affidavit, or good cause be shown for such continuance.”
To me it seems perfectly clear that the sole purpose of this enactment was to change the common law, so that in all actions where, but for such plea or account of sets-off, the plaintiff would be entitled to a judgment for specific personal property, or for a certain sum of money, it should thenceforth be lawful for the plaintiff to demand, and for the court to render in his favor, a judgment for such part of his claim or demand as the defendant by his plea or account had failed to controvert, and thus place the same beyond all controversy, in the same manner, and to the same extent, as if it had never been included therein; and I am unable to conceive how this purpose could have been more clearly expressed, than by the terms used in this section of the statute.
This judgment, so rendered for the uncontroverted part of the plaintiffs demand, bears no analogy to the judgment entered upon the acknowledgment of one of the defendants, jointly bound with other defendants, who still continue to resist the plaintiffs demand; for, as I have already shown, such a judgment is in fact no judgment, for it possessed neither conclusive'ness nor finality, for it was liable to be diminished or wholly set aside, by the result of the trial of the issues with the other defendants. But, under the provisions of section 8 of chapter 126; the judgment so rendered [113]*113•for the uneontroverted part of the plaintiff’s demand can never be diminished by the result of the trial as to the residue thereof. The amount for which such judgment has been rendered has passed out of the controversy, as effectually and completely as “if it had never been included therein,” and is therefore of necessity final and conclusive between the parties. Qxwad hoe, it is the end of controversy, and nothing remains to be done, except to carry the same into execution. For these reasons I am clearly of opinion that the judgment complained of is to all intents and purposes a final judgment., and may be reviewed by writ oí' error or sxc-jpersedeas.
To the plaintiff’s action appear to have been pleaded three pleas,viz.: “dYon damnificatusj'' “conditions performed,” and “payment,” accompanied with a specification of the several items of payment and sets-off which they desired, to prove on the trial, but it does not appear that any of them was verified by affidavit, as required in certain cases specified in section 8 of chapter 126 of the Code. The pleas themselves, are not set out in the record, but as they were neither demurred to, nor otherwise objected to, and as issues were joined on all of them, we must presume they were in proper form.
The plea of “ non damnifieatus,” if it had been objected to, would have been rejected, as it presented no ground of defense to the action, as the condition of the official bond of the sheriff on which the action was founded was in no proper sense a bond of indemnity.
The plea of “ payment,” which inform was an answer to the whole declaration, was, in effect, by the specification of par’ tial payments and sets-off accompanying it, narrowed down to an amount less than one third of the sums in the declaration demanded.
The plea of “ conditions performed ” was also an answer to the whole declaration, and controverted the plaintiff’s right to any recovery whatever. It was in effect an averment, that Samuel L. Hays had accounted for, and paid over to, the said County Court of Gilmer county, all moneys collected by him for its use, or for which as such sheriff he was in any manner liable, While jt is true that the plea qf conditions [114]*114performed admitted the execution of the official bond in the declaration mentioned, it did not admit, but in legal effect denied, that the said sheriff had in any manner failed to perform the condition thereof, for the breach of which this suit is brought.
It is insisted in argument by the counsel for the plaintiff in error, that the court had erred in overruling his motion for a continuance of the cause as to the $1,000, — which was uncontroverted by his plea of payment and the specifications of payments and sets-oif filed with it. The continuance was asked for upon the sole ground, that defendant’s counsel was absent, but, so far as this record shows, no reason was disclosed why he was not present, or that, if he had been present the defendants desired to further controvert the said $1,000. The mere absence of counsel, except under special circumstances, such as that he has suddenly been taken ill, or that he has met with some accident, or that he is necessarily absent in the public service, and has thereby been prevented from attending the court, affords no ground for a continuance. But if their counsel had been present, the defendants would not have been entitled to a continuance of the cause as to the $1,000, except for good cause shown, because the plea of conditions performed, which controverted the plaintiff’s whole cause of action, had not been verified by affidavit as required by section 8 of chapter 128 of the Code. The Circuit Court therefore did not err in refusing to continue the cause as to the sum of $1,000, for which it gave judgment.
Did the court err in overruling the demurrer to the declaration % By chapter 39 of the Code, § 32, the sheriff is declared to be “ ex-oMoio treasurer of the county, and all money collected or received for the use of the county or districts shall be paid to the sheriff to be kept and disbursed by him for county and district purposes, under the regulations pre-cribed by law.” By section 34 the sheriff is required, at the end of every fiscal year, to render to the County Court of his county, whether especially requested or not, a full statement of his account for that fiscal year, showing the balance due by or to him at the commencement of the account, the amount collected during the year, and from what sources, and the [115]*115date and amount of every county order paid, and to whom paid. These accounts, when correct, or when corrected by the court, are required to be approved by it and recorded. Before making any such settlement, he is required to return and file a written statement of every draft, order, or claim paid by him, for which he claims credit, and of the true amount actually and in good faith paid by him thereon, and to verify the same by his affidavit, the false making of which is declared to be perjury. By section 38 of the same chapter the sheriff is expressly forbidden to pay any money out of the county treasury, except upon an order signed by the president and clerk of the County Court, and properly indorsed, or upon judgment or decree as provided for in the forty second section of that chapter; and by the thirty sixth section it is ’declared that no order shall be drawn on the county treasurer, unless authorized by a special order or appropriation of the County Court, except to pay any bond, note, or written evidence of the debt of the county, or any instalment of interest payable thereon, or payment of salaries at fixed intervals.
Similar provisions are found in section 46 of chapter 45 of the Code, in regard to the collection and disbursement of school moneys by the sheriff on behalf of boards of education. The board of education of St. George district, in the •county of Tucker, having settled with Parsons, the outgoing sheriff, and ascertained that large amounts of school moneys belonging to it remained in his hands, by an order entered upon the record of its proceedings, signed by its president and secretary, directed him to pay the same to his successor in office, A. 0. Minear, then sheriff of that county, and caused a certified copy of said order to be delivered to Parsons, but did not draw any order upon him directing him to pay the same to Minear. Failing to pay the money as directed, the board of education proceeded against Parsons, and his sureties, as sheriff, by motions to enforce payment of the money remaining in his hands. After setting forth every other necessary fact, the motions particularly recited and set out the adoption by the board, and the entry on its records, of the said order directing Parsons to pay over said moneys to Minear, and the delivery to Parsons of a certified copy of said order, [116]*116but the Circuit Court quashed the notices and dismissed the-motions. Upon a writ of error this Court reversed the judgment, and held, that “it was the duty of an ex-sheriff, who-has in his hands money belonging to the board of education of a district in the county, upon the demand of said board,, by an order made and signed by its president and secretary, and delivered to him, requiring him to pay such moneys to the present sheriff and treasurer of the board, — to pay the same upon such order, unless he has legal grounds for refusing to pay the same.” Board, etc., v. Parsons, 22 W. Va. 308, 314. In these cases this Court said: “ While it is the sheriff’s-duty to settle up his business and honor all drafts made upon him while he is treasurer, yet it is clearly his duty, at the end of his term, upon the order of the board to whose credit the money stands, to pay it to the sheriff', who is their treasurer, so that the board may make proper orders thereon. In this case such an order was made, and served upon the late sheriff, and unless he could show, that he did not owe the money, or had legally disbursed the same, or, that there was some other legal reason why he should not do so, it was his duty to pay it.”
It will be perceived that the right of the plaintiff to maintain its motions rested upon the fact that the board of education, by its order entered of record, signed by its president and secretary, a certified copy of which had been delivered ¡to him, had directed Parsons to pay said moneys to Minear, the then sheriff' of the county. That this Court in the absence of such averment in the notice would hold the same as insufficient. to warrant a judgment thereon against the sheriff, clearly appears by its decision in the case of Board, etc., v. Parsons, 22 W. Va. 580. This was a motion by the board of education of Licking district, in Tucker county, against Parsons and his sureties for school moneys due that district-. The notice in this case was in all respects like the notices in the former cases, except that it wholly failed to show that any order had been made upon its books, or drawn by the board, directing Parsons to pay over the money, or that any demand had ever been made upon him for the payment thereof. The absence of such averment rendered the notice fatally defective, and this Court accordingly held, that “ a notice toan [117]*117■ex-sheriff and his sureties to recover money, which he as sheriff had collected on the school levies, which does not show on its face that the board of education which was entitled to the money had ordered him to pay such money to his successor, the present sheriff, and ex-oiñeio treasurer, •and of which he had notice, is fatally defective.'” In this, •case the Court said: “ It is right and proper, that such demand should be made upon such ex-sheriff, in this or some ■other appropriate manner, and the ex-sheriff notified thereof, •so that the board will keep a record thereof, and that the sheriff will have a proper demand made upon him to pay the •same. No such order, and no such demand, nor any order or demand, as far as the notice shows, was made in this case; •and for this reason the notice was fatally defective.”
From what we have already seen, the duties of the sheriff, as the treasurer of the county, in respeet to all moneys collected by him for the use of the county, are precisely similar, in every material respect, to those imposed upon him in regard to the collection and disbursement of school moneys. He is expressly forbidden to pay out any money belonging to the county, except upon the order of the County Court of -such county, signed by its preisdent and clerk, except upon a judgment or decree as provided in the forty second section of chapter 39 of the Code. Until such order, or some •other order, has been made by the County Court,signed by its president and clerk, directing'such outgoing, or ex-sheriff to pay the money in his hands to his successoY in office, or to some other person, and notiee thereof given him, such outgoing or ex-sheriff has not made default in not paying over ■said money, for he is entitled to such order to authorize him •to pay over the money to his successor in office, and to protect him in doing so; and until such order has been made and notice thereof given to him, no action can be' maintained •against him for failing to pay over such money.
The same reasons which controlled the judgment of this "Court in the ease last cited, 22 W. Va. 580, supra, are conclusive in the case in judgment. The declaration contains no •averment whatever that the County Court of Gilmer county by any order entered of record, or by any draft drawn by its order, signed by its president and clerk, or by any [118]*118other order or demand whatever, ordered or directed the defendant, Samuel L. Hays, to pay the moneys in the declaration mentioned to his successor in office, the sheriff of said county, or to any other person whatever. Until some such order was so made by said County Court, and notice thereof given to Hays, he was not authorized to pay over said money, and therefore not liable to be sued for it. For that reason the declaration is fatally defective, and the demurrer thereto should have been sustained.
The judgment of the Circuit Court is reversed, with cost to the plaintiff in error. And this Court now proceeding to render such judgment as the Circuit Court should have rendered, it is considered that the defendants’ demurrer to the declaration be, and the same is hereby, sustained, and leave is given the plaintiff to amend its declaration, if it is able and desires to do so; and this cause is remanded for further proceedings.