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CORNE L UNIVERSITY LIBRARY 
 
 3 1924 085 501 389 
 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
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HISTOEY 
 
 A SUIT IN EQUITY, 
 
 AS FBOSECUTED AND DEFENDED 
 
 Virginia Itate Courk 
 
 AND IN THE 
 
 UNITED STATES CIRCUIT COURTS; 
 
 WITH AN 
 
 APPENDIX, 
 
 EMBRACING, AMONG OTHER MATTERS, FORMS 
 
 OP BILLS, ANSWERS, DEMURRERS, 
 
 PLEAS, DECREES, ETC. 
 
 BY 
 
 ALEXANDEK H. SANDS. 
 
 RICHMOND, VA. 
 
 PUBLISHED BY A. MORRIS. 
 1854. 
 
PREFACE. 
 
 I undertook this work because I believed -the young 
 men of the legal profession desired a handbook to 
 guide them in the prosecution and defence of Suits 
 in Equity. 
 
 The matter of the volume has been prepared and 
 arranged with especial reference to this object. 
 
 In the first book, I have traced the History of a 
 Suit in Equity, from its beginning, through its various 
 stages, to a final decree ; in this general review, merely 
 referring incidentally to such proceedings as do not 
 necessarily enter into every suit. In the second book, 
 I have treated at length of these Proceedings, and also 
 of the Proceedings subsequent to a Decree, of Inter- 
 locutory Applications, and other matters not embraced 
 in the first. 
 
 The Appendix contains a variety of Forms of Plead- 
 ings in Equity, some of which have been selected from 
 published volumes of precedents, others were written 
 for this work, and others again are copies of Equity 
 Pleadings actually used in the progress of causes in 
 the Circuit Court of Richmond, and in the United 
 States Circuit Court held in this city. The Appendix 
 
VI PREFACE. 
 
 also contains a Summary of the more important de- 
 cisions affecting questions of Equity Practice and 
 Pleading, made by ,the Court of Appeals of Virginia 
 and by the Supreme Court of the United States. 
 
 I take pleasure in acknowledging my indebtedness 
 to Mr. Eiehard Milton Gary, Deputy Clerk of the 
 Richmond Circuit Court, as well as to Mr. Philip Mayo, 
 Clerk of the United States Circuit Court held in this 
 city, for the kind aid they have rendered me, in fur- 
 nishing copies of Pleadings and Decrees in their 
 respective Courts, which have been used as the basis 
 of many of the Forms contained in this volume. 
 
 A. H. SANDS. 
 
 liichmond, April 15tli, 1854. 
 
INTEODUCTIOK 
 
 The general rule laid down in the books in relation to the 
 Jurisdiction of Equity Courts, is to the effect that these 
 Courts will always entertain jurisdiction in cases of rights 
 recognized and protected hy the municipal jurisprudence, 
 where a plain, adequate, and complete remedy cannot be had 
 in Courts of Common Law. The line of jurisdiction em- 
 braced by this rule cannot be drawn with entire precision, 
 and the attempt to define its exact limits will not be made 
 here ; but it may be proper to state that there are many cases 
 in which a party, now having a full and complete' remedy at 
 Law, may yet obtain relief of a Court of Equity. These are 
 cases, in which originally such relief was not afforded by 
 Courts of Common Law; and the jurisdiction having once 
 attached in Equity for want of a remedy at Law, it remains 
 there until taken away by positive statutes. Thus, in the 
 Virginia State Courts, though a party in an action at law 
 may compel a discovery from the defendant in answer to inter- 
 rogatories as to such matters as he may properly inquire into,* 
 yet Courts of Equity will entertain jurisdiction of a bill of 
 discovery filed for the purpose of compelling discovery in 
 such a case. 
 
 The subjects of Equity Jurisdiction have been classified in 
 a variety of methods. Mr. Maddox adopts in his treatise 
 the following classification : 1st, Accident and mistake; 
 2d, Account; 3d, Fraud; 4th, Infants; 5th, Specific per- 
 formance of agreements; and, 6th, Trusts. Lord Coke had 
 previously enumerated the subjects of Equity Jurisdiction as 
 "matters of fraud, accident, and trust." Neither of these 
 
 1 See Code of Virginia, chap. 176, sections 38, 39, 40. 
 
VIU INTRODUCTION. 
 
 divisions embraces classes of subjects which form no small 
 part of the business of Equity Courts ; as for example, the 
 remedies by the writ of injunction, no exeat, and the like, 
 and by bill of discovery, mentioned before. The classification 
 of Mr. Fonblanque is more generally approved of, and seems 
 to be much more accurate and comprehensive. That wnter 
 divides the jurisdiction of Equity Courts into three classes : 
 1st, The, jurisdiction which they exercise concurrent with 
 Courts of Common Law; 2d, Their jurisdiction auxiliary to 
 Courts of Law ; and, 3d, Their exclusive jurisdiction. This 
 division is adopted by Justice Story. His Treatise on Equity 
 Jurisprudence is in the hands of every student, and to that 
 the reader is referred for the filling up of the outline here 
 marked out. 
 
 Equity does not entertain jurisdiction over Criminal Pro- 
 ceedings, save that under special circumstances it will restrain 
 a public nuisance. In all other matters, criminal cognizance 
 is restricted to Courts of Common Law. 
 
 There is a peculiarity attending Pleadings in Equity which 
 deserves to be particularly noted at the threshhold of this 
 work. It is this : in Courts of Common Law, the immediate 
 parties to the action are not always the only parties interested 
 in the issue ; indeed, in many cases, they are less interested 
 than others who are not parties, and cannot properly be made 
 such. In Equity, however, this is not the case. There, as a 
 general rule, all persons materially interested in the subject 
 should be parties to the suit, either as plaintiffs or defen- 
 dants.' And so, also, in the arrangement of parties plaintiff 
 
 2 This general rule admits of exception in the following, among other, 
 cases : 1st. When the necessary parties are unknown, and the bill itself 
 seeks a discovery of them. 2d. When a person who would ordina- 
 rily be a party is beyond the jurisdiction of the Court, provided 
 that no decree is sought which would prejudice his rights; and that 
 the merits of the controversy can be fully ascertained without his 
 presence. 3d. When the parties are so numerous that it would be 
 extremely inconvenient to unite them in one suit; — this latter class ad- 
 
INTRODUCTION. IX 
 
 and defendant ttere is a farther difference between actions at 
 Law and suits in Equity. In the former, the same reason 
 which requires that the immediate disputants be the only 
 parties at law, also requires their arrangement to be such that 
 all the plaintiffs shall support one side, and all the defendants 
 
 mlttlng of sereral subdiTisions : (1.) Where the question is one of common 
 interest, and one or more sue or defend for the benefit of the whole, as in 
 the case of the creditors of a deceased debtor, when one or more may sue 
 on their own behalf and that of the remaining creditors. (2.) Where the 
 parties form a voluntary association for private or public purposes, and 
 those who sue or defend may be fairly presumed to represent the rights 
 and interests of the whole. (3.) Where the parties are so numerous that 
 it would be impracticable to bring them all before the Court, although 
 they have separate and distinct interests. Barton's Suit in Equity by 
 Holcombe, 47. See on the subject of Parties, 1 Dan. Ch. Pr. ; Story's 
 Equity Pleadings ; Calvert on Parties ; also Eules of TJnited States Su- 
 preme Court, published in Appendix to this yoliime; 
 
 Note. — It is a general rule, subject to very few exceptions, that ttere Is 
 no sort or condition of persons but may sue in Courts of Equity. The 
 exceptions are as follows : For mere personal demands an alien may 
 institute a suit in these Courts, provided he be not an alien enemy ; (see 
 IPet. C. C. K. 106;) but it is clear that an alien, having no right to acquire 
 real property, would not be entitled to sue in Equity to establish such 
 right. It may be a matter of question whether an outlaw could institute 
 a suit in Equity in the Virginia State Courts or in the United States Courts. 
 In the Virginia State Courts the weight of the positive statutes of the 
 State in regard to outlawry would seem to favor the institution of a 
 suit, either by himself or another; but it is possible that public policy 
 would inhibit him, or another for him from asserting any claim in a court 
 of justice, and the Courts might so determine. The question has not 
 been settled, and this intimation of its'probable issue is expressed with many 
 misgivings as to the result. There are other exceptions to the general 
 rule above noted. These are persons who, though not prevented from 
 suing, are incapacitated from suing alone, as infants, idiots, persons of 
 weak minds, or imbeciles, and married women. Infants, and in most 
 cases, married women, assert their rights in Courts of Equity by a next 
 friend, who usually is a relative, but not necessarily such. Married 
 women may sometimes assert their rights in their own names and alone ; 
 but these cases are rare. For the assertion of rights on behalf of lunatics, 
 persons of weak minds, or imbeciles, their committees should institute suit. 
 The committees of convicts in the State of Virginia also sue, instead of the 
 convict-s themselves. 
 
S. INTEODUCTION. 
 
 the other side of the question in issue. In Equity, it is only 
 requisite that the interests of the plaintilBFs be consistent, and 
 it is immaterial that the defendants are in conflict with each 
 other, or that some of their claims are identical with those of 
 the plaintiffs.^ 
 
 Equitable jurisdiction is, in England, chiefly exercised by 
 the Court of Chancery. 
 
 The United States Circuit Courts exercise all the original 
 jurisdiction in Equity causes, with which the Federal Courts 
 of the Union are invested by the Federal Constitution. (See 
 11th section of Act of Congress, September 24th, 1789.) 
 These Courts entertain original jurisdiction concurrent with 
 the Courts of the several States, of all suits in Equity, where 
 the matter in dispute, exclusive of costs, amounts to the sum 
 or value of five hundred dollars, and the United States are 
 plaintiffs, or an alien is a party, or the suit is between a 
 citizen of the State in which the suit is brought and the 
 citizen of another State. (See 11th section of Act of Con- 
 gress of September 24th, 1789.*) These Courts, also, enter- 
 tain jurisdiction in all cases, brought under the laws of the 
 United States, granting to authors or inventors the benefit of 
 their writings or inventions. 
 
 In the State of Virginia, original Equity jurisdiction is 
 exercised by the County and Corporation Courts, and by the 
 Circuit Courts of the State. The Circuit Courts have original 
 jurisdiction concurrent with the County or Corporation Courts 
 in all Equity causes,* and, besides, there are cases especially 
 committed to the charge of the Circuit Courts, such as bills 
 for divorce,f and the sale of lands of persons under disability 
 under the 128th chapter of the Code of Virginia. The 
 
 3 Adams's Equity, 312. 
 
 ■» TMa act provides that suoh suits, if first instituted in tlie State 
 Qourta, may be removed therefrom to the United States Circuit Courts, 
 upon petition. See 12th section of Act, Story's Laws U. S., vol. 1, p. 27. 
 
 6 Code of Virginia, chap. 128, sec. 3. |Ibid. chap. 109, sec. 8. 
 
INTRODUCTION. xi 
 
 ■County and Corporation Courts have original jurisdiction in 
 aH causes in Equity, except in causes to recover property or 
 money, not of greater value or amount than twenty dollars, 
 and except such cases as are by law specially assigned to some 
 other tribunal." 
 
 The Appellate Jurisdiction of these several tribunals will 
 be treated of in the chapter on Appeals in the subsequent 
 Volume. 
 
 8 Code of Virginia, chap. 127, sec. 3. 
 
SUIT II EQUITY. 
 
 BOOK I. 
 
 CHAPTER I. 
 
 Of Oommencement of Suit in Virginia State Courts; 
 and of the Rules and Proceedings in the Clerk's 
 Office in these Courts anterior to filing of Bill m- 
 Information. 
 
 HOW SUITS INSTITUTED. 
 
 §1. In England, it is the practice to institute suits in 
 equity by first filing the bill or information : a bill, when 
 the claim preferred is on behalf of a subject ; an infor- 
 mation, when exhibited on behalf of the crown. Her«, 
 the practice is somewhat diiferent. Ordinarily,* suits 
 in equity are begun in the Virginia State Courts in like 
 manner with actions at law, by placing with the clerk 
 of the court in which the • suit is instituted a memoran- 
 dum setting forth the names of the parties complainant 
 and defendant, and directing a summons^ to issue, 
 
 * Aa to injunction bills, writs of ne exeat, and suits instituted in United 
 States Circuit Courts, see subsequent chapters of this work. 
 
 ' Formerly the writ used was a subpoena. The Code of Virginia has sub- 
 stituted in place of the subpoena the writ of summons. — Chap. 170, sec. 5. ' 
 
2 HOW SUITS INSTITUTED. 
 
 returnable within ninety days after its date, to some 
 rule day or to the first day of next term of the court. 
 This memorandum is as follows : 
 
 To the Clerk of the Court for the Oity (or County) 
 
 of-^: 
 A. B. and C. D., - - - Plaintiflfs, 
 
 against 
 R. H. and J. W., - - Defendants. 
 
 Issue summons in Chancery to — — rules, [or, to the 
 first day of the next term of the court.) 
 
 G. M., p. q. 
 
 § 2. Upon the filing of this memorandum, the clerk 
 will issue a summons in conformity to its directions. 
 This summons is as follows •? 
 
 The Commonwealth of Virginia, 
 
 To the Sheriff of County, greeting : 
 
 You are hereby commanded to summon R. H. and 
 J. W. to appear at the clerk's office of our circuit 
 
 court of the city {or county) of , at the rules to be 
 
 holden for the said court, on the first Monday in 
 
 next, to answer a bill in chancery, exhibited against 
 them in the said court by A. B. & C. D. And have 
 then there this writ. 
 
 Witness, J. E., Clerk of our said court, at the 
 
 day of , 18 — ', and in the year of the 
 
 Commonwealth. 
 
 J. E„ Clerh. 
 
 2 In England, if a defendant be a peer of the realm or entitled to the 
 privilege of peerage, he has a right, before a subpoena is issued against 
 him, to be informed by letter from the lord chanoellor of the bill having 
 been filed ; rthis letter is called a letter missive, and must be aooompanied 
 by a copy of the bill. Here there id no difference in the character of the 
 process, whatever the office and position the defendant holds. 
 
SERVICE OF SUMMONS. 8 
 
 § 3. The summons may be executed on or before tbe 
 return day by delivering copies to eacb of the defend- 
 antsi^ It may be served by an officer or by another 
 person. When served by an officer, his return thereon 
 that " the within summons has been executed by deliv- 
 ering a copy of the same to each of the parties defend- 
 ant" will suffice;* when served by another person, an 
 affidavit of the service is required." 
 
 § 4. If a party defendant be not found at his usual 
 place of abode, the summons may be executed by deliv- 
 ering a copy and giving information of its purport, to 
 his wife, or any white person found there, who is a 
 member of his family and above the age of sixteen 
 years ; or, if neither he nor his wife, nor any such 
 white person, be found therej by leaving a copy of the 
 summons posted at the front door of his abode.® 
 
 § 5. The Code of Virginia, chap. 170, sec. 7, pre- 
 scribes the mode of service of summons upon a corpo- 
 ration as follows : " It shall be sufficient to serve any 
 process against, or notice to a corporation, on its mayor, 
 rector, president, or other chief officer, or in his absence 
 from the county or corporation in which he resides, or 
 in which is the principal office of the corporation, 
 against or to which the process or notice is, if it be a 
 city or to-vsliyjaQ the president of the council or board 
 of trustees, or in his absence, on the recorder or any 
 
 SJEhe service of fhs summons against husband and wife on husband 
 alone is ordinarily a'good service ; 2 John. Ch. Rep. 139, but where the 
 plaintiff is seeking satisfaction out of the separate estate of Trife, there 
 should be separate service upon her. 
 
 * See Code of Virginia, chap. 170, sec. 2. 
 
 5 Ibid., chap. 170, sec. 6, and chap 167, sec. 1. 
 
 6 Ibid.) chap. 167, sec. 1. 
 
4 THE RULES. 
 
 alderman or trustee ; and if, it be not a city or town, 
 on the cashier or treasurer ; and if there be none such, 
 or he be absent, on a member of the board of directors, 
 trustees or visitors. If the case be against a bank of 
 circulation, and be in a county or corporation wherein 
 the bank has a branch, service on the president or 
 cashier of such branch bank sh&,ll be sufficient ; and if 
 the case be against some other corporation than a bank 
 and there be not in the cpunty or corporation wherein 
 it is commenced, any other person on whom there can 
 be service as aforesaid, service on an agent of the cor- 
 poration against which the case is, and publication of a 
 copy of the process or notice as an order is published 
 under the eleventh section of this chapter, shall together 
 be sufficient. Service on any person under this section, 
 shall be in the county or corporation in which he re- 
 sides ; and the return shall shew this, and state on whom 
 and when the service was, otherwise the service shall 
 not be valid." 
 
 § 6. The rules are opened in the clerk's office on the 
 first Monday in every month, except when a term of a 
 circuit court or a quarterly term of a county or corpo-'' 
 ration court commences on that day, or either of the 
 two following days, or on the preceding Thursday, Fri- 
 ■ day and Saturday ; in either of which ggg[^ the rules 
 will be held on the last Monday in the next preceding 
 month. The rules may continue open three days. At 
 the rules all steps are taken necessary' to mature the 
 suit for the hearing of the court, and it not unfrequently 
 happens that an end is here put to a suit in the clerk's 
 office before it has come under the eye of the court. 
 
 § 7. Thus, the plaintiff may dismiss his suit at the 
 rules : or by his neglect he may incur a dismission, or 
 
' DISMISSION AT EULBS. 5 
 
 the suit may abate at rules by operation of law : or the 
 defendant may confess a decree in the clerk's office for 
 so much principal and interest as the plaintiif may be 
 willing to accept a decree iovJ 
 
 WHEN SUIT DISMISSED AT RULES. 
 
 § 8. A defendant may appear at the rules, at which 
 the process against him is returnable, or if it be return- 
 able in term, at the first rule day after the return day, 
 and if the bill be not then filed, ma.y give a rule for the 
 plaintiff to file the same. If the plaintiff fail to file 
 his bill at the succeeding rule day, after a rule has been 
 given him by a party defendant to file it, he will be 
 non-suited and required to pay the defendant five dol- 
 lars beside his costs. ^ 
 
 § 9. If the plaintiff suffer three months to elapse 
 after the summons is returned executed as to any one 
 or more of the defendants, without filing his bill, the 
 clerk will enter his suit dismissed, although none of the 
 defendants may have appeared.' 
 
 WHEN SUIT ABATES AT KULBS. 
 
 § 10. When a summons to answer a bill is against a 
 defendant, whom the officer (receiving it) knows not to 
 reside in his county or corporation, the officer, unless 
 he find him therein before the return day, should 
 return him a non-resident; and if the court has juris- 
 diction simply on the ground of such defendant's resi- 
 dence in the county or corporation, the suit will abate 
 as to that defendant.^" 
 
 'Code of Va., oliap. 171, see. 41, slbid., chap. 171, sec. 6. 
 
 3 Ibid., chap. 171, sec. 6. lolbid., chap. 171, sec. 7. 
 
CHAPTER II. 
 
 Of the several kinds of Bills; of the matter and form 
 of Bills, and of Informations. 
 
 SEVERAL KINDS OB BILLS. 
 
 § 11. The several kinds of bills have been usually 
 considered as capable of being arranged under three gene- 
 ral heads. First. Original bills, which relate to some 
 matter not before litigated in the court by the same 
 persons standing in the same interests. Second. Bills not 
 original, which are either an addition to, or a contin- 
 uance of, an original bill, or both. Third. Bills, which 
 though occasioned by or seeking the benefit of a former 
 bill or of a decision, made upon it, or attempting to 
 obtain a reversal of a decision, are not considered as a 
 continuance of the former bill, but in the nature of 
 original bills. And though this arrangement is not 
 perhaps the most perfect, yet, as it is nearly just, and 
 has been very generally adopted in argument and in the 
 books of reports and of practice, it will be convenient 
 to treat of the different kinds of bills with reference 
 to it. 
 
 §12. First. A bill may pray relief against an injury 
 suffered, or only seek the assistance of the court to en- 
 able the plaintiff to defend himself against a possible 
 future injury, or to support or defend a suit in a court 
 of ordinary jurisdiction. Original bills have, therefore. 
 
SEVERAL KINDS OP BILLS. 7 
 
 been again divided into bills praying relief, and bills not 
 praying relief. An original bill praying relief may be, 
 1. A bill praying the decree or order of the court 
 touching some right claimed by the person exhibiting 
 the bill, in opposition to some right claimed by the per- 
 son against whom the bill is exhibited. 2. A bill of 
 interpleader, where the person exhibiting the bill claims 
 no right in opposition to the rights claimed by the per- 
 sons against whom the bill is exhibited, but prays the 
 decree of the court touching the rights of those persons, 
 for the safety of the person exhibiting the bill. 3. A 
 bill praying the writ of certiorari^ to remove a cause 
 from an inferior court of equity. An original bill not 
 praying relief may be, 1. A bill to perpetuate the testi- 
 mony of witnesses. 2. A bill for discovery of facts 
 resting within the knowledge of the person against whom 
 the bill is exhibited, or of deeds, writings or other things 
 in his custody or power. •* 
 
 § 13. Second. A suit imperfect in its frame, or become 
 so by accident before its end has been obtained, may 
 in many cases be rendered perfect by a new bill, which 
 is not considered as an original bill, but merely as an 
 addition to, or a continuance of, the former bill, or both. 
 A bill of this kind may be, 1. A supplemental bill, 
 which is merely an addition to the original bill. 2. A 
 bill of revivor, which is a continuance of the original 
 bill, when by death some party to it has become incapa- 
 ble of prosecuting or defending a suit, or a female 
 plaintiff has by marriage incapacitated herself from 
 suing alone. ^ 3. A bill both of revivor and supple- 
 
 1 This bill is rarely, if ever, used in America, and is not of very fre- 
 quent ootfurrenoe in England. 
 
 2 Bills of revivor simply are very rare in Virginia. Suits are re- 
 vived here, by the writ of scire facias, when the party who dies, or, if ,a 
 
8 SEVERAL KINDS OF BILLS. 
 
 m6nt, wliich continues a suit upon an abatement, and 
 supplies defects arisen from some event subsequent to 
 tbe institution of the suit. 
 
 § 14. Third. Bills for the purposes of cross litigation 
 of matters already depending before the court, of con- 
 troverting, suspending, avoiding, or carrying into execu- 
 tion a judgment of the court, or of obtaining the benefit 
 of a suit which the plaintiiF is not entitled to add to or 
 continue for the purpose of supplying any defects in it, 
 have been generally considered under the head of bills 
 in the nature of original bills, though occasioned by or 
 seeking the benefit of former bills ; and may be, 1. A 
 cross bill exhibited by the defendant in a ^ former bill 
 against the plaintiff in the same bill, touching some 
 matter in litigation in the first bill. 2. A bill of review 
 to examine and reverse a decree made upon a former 
 bill. 3. A bill in the nature of a bill of review, 
 brought by the person not 'bound by the former decree. 
 4. A bill to impeach a decree upon the ground of fraud. 
 6. A bill to suspend the operation of a decree on spe- 
 cial circumstances, or to avoid it on the ground of 
 matter arisen subsequent to it. 6. A bill to carry a 
 decree made in a former suit into execution. 7. A bill 
 in the nature of a bill of revivor, to obtain the benefit 
 of a suit after abatement in certain cases which do not 
 admit of a continuance of the original bill. 8. A bill 
 in the nature of a supplemental bill, to obtain the benefit 
 of a suit, either after abatement in other cases which 
 do not admit of a continuance of the original bill, or 
 
 female that marries, is a defendant — when the party who dies or female 
 marrying is a plaintiff, the person or persons for whom a scire facias might 
 be sued out may, without notice or scire facias, move that the suit proceed 
 in his or their name. — See Code of Virginia, chap. 173, sec. 3. 
 
MATTER OF BILL. 9 
 
 after the suit is become defective without abatement in 
 cases which do not admit of a supplemental bill to sup-- 
 ply that defect.* 
 
 MATTER OF BILL. 
 
 § 15. Every bill should state the right, title or claim 
 of the plaintiff with accuracy and clearness ; and should, 
 in like manner, state the injury or grievance of which 
 he complains and the relief which he asks of the court.* 
 
 § 16. Every fact essential to the plaintiff's title to 
 maintain the bill and obtain the relief must be stated 
 in the bill, otherwise the defect will be fatal ; no facts 
 are properly in issue unless charged in the bill.* 
 
 § 17. The bill must show sufficient matters of fact per 
 se to maintain the case, and if it be defective in this the 
 bill will be dismissed.* This rule has been carried to 
 the extent that if several persons join in filing a bill 
 and it appears that one of them has no interest, the bill 
 will be open to demurrer though it appear that all the 
 other plaintiffs have an interest in the matter and a 
 right to institute a suit concerning it.^. 
 
 § 18. In all cases the bill must show that the parties 
 defendant are in some way liable to the plaintiff's de- 
 mand,^ or that they have some interest in the subject 
 of the suit,* and it must further show that there is such 
 a privity between the parties defendant and the plain- 
 tiff as entitles him to sue them.' 
 
 § 19. Care should be taken not to attempt to embrace 
 in the same bill too many objects. It is a rule of Equity 
 
 ■» The foregoing part of this chapter has, with some modifications, been 
 taken from the text of Lord Eedesdale. 
 3 Story's Bq. Plea., 284. ■> Ibid., 295. = Mitf. Plea., 125. 
 
 6 1 Pr. Wms., 695, 1 Dan. Ch. Pr. 414. 'Mitf. Plea., 132. 
 
 s Ibid., 130. 9 Ibid., 129 ; 1 Dan. Ch. Pr., 427. 
 
10 MATTER OF BILL. 
 
 tbat two or more distinct subjects cannot be combined 
 in one suit. An offence against this rule is termed 
 multifariousness and -will render a bill liable to demur- 
 rer i^" but it should be observed that this rule will only 
 apply where a plaintiff claims several matters of dif- 
 ferent natures by the same bill; — where one general 
 right only is claimed by the bill, though the defendants 
 have separate and distinct interests, a demurrer will 
 not hold." 
 
 § 20. A bill should not contain statements or charges 
 which are scandalous or impertinent.^^ Scandal consists 
 in the allegation of anything which is unbecoming the 
 dignity of the court to hear, or is contrary to good 
 manners, or which charges some person with a crime 
 not necessary to be shown in the cause. Any unne- 
 cessary allegation bearing cruelly upon the moral char- 
 acter of an individual is scandalous." Impertinences 
 are described by Lord Chief Baron Gilbert to be 
 " where the records of the court are stuffed with long 
 recitals, or with long digressions of matter of fact, 
 which are altogether unnecessary and totally immate- 
 rial to the matter in question." " 
 
 § 21. It is not a ground of demurrer that scandalous 
 or impertinent matter is introduced in a bill — the par- 
 ties defendant are only entitled to have the record pu- 
 rified by expunging such matter and a reference to a 
 Commissioner for that purpose will be ordered. 
 
 10 1 Dan. Ch. Pr., AST. " Mitf. Plea., 147. 
 
 12 1 Dan. Ch. Pr., 452. i3 Ibid., 452. 
 
 14 Gilb. For. Kom., 209. The writer has seen but one case of scandal 
 or impertinence in pleadings in Virginia. This oconrred in an answer to 
 a bill filed in the Court of Chancery at Eichmond in a suit entitled 
 " Mason ts. Mason and als." The answer will be printed in the Appendix 
 to this volume. 
 
FORM OF BILLS. 11 
 
 § 22. Beside these requisites, it is further necessary 
 in every bill to pray the court to grant the proper relief 
 suited to the case as made by the bill ; and if for any 
 reason founded on the substance of the case as stated 
 in the bill, the plaintiff is not entitled to the, relief he 
 prays, either in whole or in patrt, the parties defendant 
 may demur." It is usual to insert in every bill a 
 prayer for general relief, and it seems that a special 
 prayer is not absolutely necessary when this general 
 prayer is inserted." 
 
 § 23. There are other requisites appertaining to bills 
 adapted to particular purposes. These will be seen on 
 reference to the chapters treating of such bills. 
 
 FORM OF BILLS. 
 
 § 24. Every bill should have a convenient form. 
 Original bills praying relief being of more frequent 
 use, and the several other kinds of bills so nearly 
 resembling them in form, it is deemed proper here to 
 set forth simply the form of original bills alone. 
 
 § 25. The form of an original bill praying relief 
 usually consists of nine parts :^' 1st. The address to the 
 court. 2d. The names of the parties plaintiff. 3d. The 
 statement of plaintiff's case, usually denominated the 
 stating part of- the bill. 4th. The charge of confede- 
 racy on the part of defendants with others to deprive 
 the plaintiff of his right. 5th. The allegation that the 
 
 15 Mitf. Plea., 133 ; L Dan. Ch. Pr. 429. 
 >s But see post, note 41 to sec. 56, p. 23. 
 
 17 This division into nine parta is not unirersally adopted by lega 1 
 writers. Lube deems it illogical and incorrect; he makes only four. 
 Adams, in his Treatise on Equity, makes the liUe number. Justice Story 
 adopts the division in the text. 
 
12 FOKM OF BILLSl 
 
 defendants intend to set np a particular sort of defence, 
 the reply to whicla the plaintiff anticipates^ by alleging 
 certain facts which will defeat such defence ; this is 
 termed the charging part. 6th. The statement that 
 the plaintiff has nO remedy without the assistance (Jf a 
 court of equity, which is called the averment of juris- 
 diction. 7th. The interrogating part, in which the 
 'stating and charging parts are converted into inter- 
 rogatories for the purpose of eliciting from the defen- 
 dant a circumstantial discovery upon oath of the truth 
 or falsehood of the matters stated and charged.. 8th. 
 The prayer for relief ; and, 9thy The prayer that pro- 
 cess may issue. 
 
 In Virginia State Courts. — Some of these parts are 
 rarely, if ever, used in Virginia. In bills prepared by 
 eminent counsel the charging part is omitted altogether, 
 while the purpose of the interrogating part is served by 
 the general prayer that each of the defendants shall be 
 required to answer the several statements of the bill as 
 fully and particularly as if they were repeated, and the 
 defendants specially interrogated in relation thereto.'* 
 The averment of jurisdiction is usually inserted. The 
 charge of confederacy is not. 
 
 In United States Courts. — The Rules of the Supreme 
 Court of the United States, prescribed for the Circuit 
 Courts of the United States, leave it optional with the 
 party plaintiff to insert in his bill the confederacy 
 clause; but expressly require that the prayer of the 
 ibill should ask the special relief to which the plain- 
 tiff svipposes himself entitled, besides a prayer for gene- 
 ral relief ;^^ and further provide that the interrogating 
 
 IS See IJohn. Ch. Rep. 65. 
 
 19 XXI. Rule of United States S. C. 
 
POEM OF BILLS. 13 
 
 clause shall be inserted, the form of which is given in 
 the 43d rule, and will be cited hereafter. 
 
 § 26. "With these remarks upon the practice in this 
 country, we proceed to lay before the reader the several 
 purposes which these parts of the bill were intended to 
 serve in England, and their forms as used in that coun- 
 try and in this. 
 
 1. Address of the Bill. 
 
 § 27. In England, every bill must be alddressed to the 
 person or persons who have the actual custody of the 
 Great Seal at the time of its being filed, unless the 
 person holding the seals is a party or the seals are in 
 the King's own hand, in which cases the bill must be 
 addressed: "To the King's most excellent Majesty in 
 his High Court of Chancery. "="• 
 
 § 28. In the United States Circuit Courts, the address 
 is as follows : " To the Judges of the Circuit Court of 
 the United States for the District of ." ^^ 
 
 § 29. In the Virginia State Courts, when suit is 
 brought in a Circuit Court, the address is as follows : "To 
 the honorable J. B. C, Judge of the Circuit Court for the 
 
 county of " ; when brought in a County Court, the 
 
 address is thus: "To the worshipful justices of the 
 County Court of county." 
 
 2-. Names of Plaintiffs. 
 
 § 30. In England, it is not only necessary that the 
 names of the several complainants in a biU should be cor- 
 rectly stated, but the description and place of abode of 
 each plaintiff must be set out. ^^ 
 
 20 1 Dan. Ch. Pr;, 462. 21 XX. Kule of United Statea S. C. 
 
 Mitf. PI. r. ^1 Dan. Ch. Pr., 463. 
 
 2 
 
14 FORM OF BILLS. 
 
 § 31. In the United States Circuit Courts, it is requi- 
 site to state in the bill the names and residence of the 
 several parties plaintiff and defendant.^^ The reason of 
 this rule is apparent : those courts in most cases between 
 citizen and citizen, having jurisdiction only -svhere the 
 matters of controversy exist between citizens of differ- 
 ent States, the citizenship should appear on the face 
 of the bill.2* 
 
 § 32. In the Virginia State Courts, the names of the 
 plaintiffs are usually inserted, without a description of 
 employment or place of abode.^' It is usual, however, 
 whenever the bill is preferred by a next friend, or com- 
 mittee, or the like, to insert a description of the char- 
 acter in which party plaintiff sues, as will be seen in 
 examples hereafter given. 
 
 § 33. In the English Courts, the manner of introdu- 
 cing the statement with the names of the plaintiffs is as 
 follows : " Humbly complaining, sheweth unto your 
 
 Lordship, your orator A. B., of the parish of , in the 
 
 county of , gentleman [or yeoman,) that, &c." In 
 
 the United States Circuit Courts, as follows : " A. B. of 
 
 , and a citizen of the State of , brings this 
 
 his bill against C. D. of -^ — —, and a citizen of the 
 
 State of , and E. E. of — — , and a citizen of the 
 
 State of ; and thereupon your orator complains 
 
 ^•>XX. Rule of United States S. C. 
 24 Dodge va. Perkins, 4 Mason, 435. 
 
 ^5 The propriety of this course has never heen raised by a demurrer in 
 Virginia. If attempted now, it would undoubtedly prove a fruitless effort, 
 though in England a demurrer to a bill on the ground that the place of 
 abode was not stated has been sustained. See Rowly cs. Eccles, 1 S. 
 and S. 611. 
 
FORM OP BILLS. 15 
 
 and says that, kc."^'^ In the Virginia State Courts, 
 when presented to a Circuit Court, as follows : "Humbly 
 complaining, sheweth unto your honor, your orator 
 A. B., that," &c., and when presented to a County 
 Court : " Humbly complaining, sheweth unto your wor- 
 ships, your orator," kc.^'' 
 
 3. Stating Part. 
 
 § 34. This part of the bill contains the statement of 
 the plaintiff's case. The statement should be clear, 
 direct and positive, as to all matters necessary to sup- 
 port the plaintiff's equity; but where a matter essential 
 to the determinatiqp of the plaintiff's claim is charged 
 to rest within the knowledge of a defendant, or must of 
 necessity be within his knowledge, and is consequently 
 the subject of a part of the discovery sought by the 
 bill, a precise allegation is not required.^^ 
 
 § 35. The statpnjent should not be argumentative, nor 
 should it contain long recitals from deeds or other in- 
 struments in hseo verba,^ and as has been stated here- 
 tofore, the statement should not contain irrelevant or 
 impertinent or scandalous matter. 
 
 26 XX. Kule United States S. C. 
 
 27 It should be noted here, that when a plaintiff sues on behalf of him- 
 self, and others of a class with himself, the fact is usually stated in this 
 part of the bill ; 1 Dan. Ch. Pr., 464. As in the case of a " Creditor's bUl," 
 which runs thus : " Humbly complaining, sheweth unto your honor your 
 orator A. B., who sues on behalf of himself, and of such other, the cred- 
 itors of C. D. deceased, who shall come in and seek relief by and contri- 
 bute to the expense of this suit, that," &c. 
 
 28 1 Dan. Ch. Pr„ 466. 
 
 29 There are oases in which the plaintiff's case turns upon the construc- 
 tion of words in written instruments ; in such cases, it surely would not 
 be deemed improper to spread on the face of the bill the precise words of 
 the instrument. — See Dan. Ch. Pr., 469. 
 
16 FOEM 01' BILLS. 
 
 § 36. Although in bills in equity the same precision 
 of statement that is required in pleadings at common 
 law is not attainable, yet it is absolutely necessary that 
 such a conyenient degree of certainty should be adopted 
 as may serve to give the defendant full information of 
 the case which he is called upon to answer.?" 
 
 § 37. Every fact necessary to the plaintiff's case 
 should be set forth in the stating part of the bill; other- 
 wise, he will not be permitted to offer or require any 
 evidence of such fact.'' A general charge or state^ 
 ment, however, of the matter of fact is sufficient; 
 though, it seems that a defect here cannot be cured by 
 a subsequent interrogatory.'^ 
 
 § 38. In the English Courts, the stating part of the 
 biU is kept distinct and separate from the confederating 
 clause and the charging part. This will be seen on re- 
 ference to the forms in Appendix. In the United States 
 Circuit Courts, a party plaintiff is at liberty to omit al- 
 together the confederacy clause and the charging part 
 of the bill, and in his narrative, or stating part, to state 
 and avoid by counter averments at his option any mat- 
 ter or thing which he supposes will be insisted upon by 
 the defendant, by way of defence or excuse, to the case 
 made by the plaintiff for relief.'' In the Virginia 
 State Courts, it is the practice to set forth the state- 
 ment of the plaintiff's case in the stating part, and to 
 merge in it the charge of confederacy if deemed neces^ 
 sary, and any matter of offence or defence thought eX' 
 pedient by the plaintiff or his counsel. 
 
 § 39. The main point to be looked to is the fact. 
 
 so 1 Dan. Cli. Pr., 476. =' Story's Eq, PI. p. 26, see. 28. 
 
 32 Ibid. See i Munf. 218. 33 XXI. Rule Supreme Court U, S. 
 
BORMOP BILLS. IT 
 
 whether in the statement of his case in the bill the 
 plaiiitiff has set forth every material averment necessary 
 to support, his right, to the relief he asks. 
 
 § 40. Here follows a form of a statement in an Eng- 
 lish bill, to foreclose a mortgage: "That Ci D., being 
 seized to him and his heirs in fee simple or other- 
 wise well entitled unto, the messuages, lands, tene- 
 ments, and hereditaments, hereinafter mentioned, ap- 
 plied to and requested your orator to advance and lend 
 
 him the sum of £ ,. vipon the security or mortgage 
 
 of the said messuages, lands, hereditaments, and prem- 
 ises; and your orator, having agreed thereto, did 
 accordingly advance and lend the same to the said 
 C. D. ; and, thereupon for securing the re-payment of 
 the said £ , and interest for the same, an inden- 
 ture, {recite mortgage securities.) "And your orator 
 
 farther sheweth, &c., that the said £ , or any part 
 
 thereof^ was not paid to your orator, or any other 
 person on his account, at the time limited and ap- 
 pointed in that behalf by the said last-mentioned 
 indenture, or at any other time, but default was made 
 in the payment thereof, whereby the legal estate of 
 the said messuages, lands, hereditaments, and pre- 
 mises, became vested in your orator; and your orator 
 farther showeth, &c., that the whole of the principal 
 
 sum of £ -, is now due and owing to your orator, 
 
 together with a large arrear of interest thereon, and 
 your orator being desirous of being repaid the same, 
 has frequently, and in a friendly manner, applied to 
 and requested the said C. D. to come to a fair and just 
 account with him, for what is due and owing to him 
 for principal and interest on his said mortgage security, 
 of the day of , and to pay to your orator 
 
18 FORM OF BILLS. 
 
 what shall be found due to him on taking such account; 
 and your orator well hoped, &c." 
 
 § 41. This form of statement may be used in bills filed 
 in the United States Circuit Courts and in the Virginia 
 State Courts ; though the statement is not usually so 
 precise in bills filed in those courts. 
 
 4. Charge of Confederacy. 
 
 §42. This part of an English bill is as follows : "But 
 now so it is, may it please your Lordship that the said C. 
 D., combining and confederating with divers other per- 
 sons at present unknown to your orator, (whose names 
 when discovered your orator prays may be herein in- 
 serted with apt and proper matter and words to charge 
 them as parties hereto,) and in order to give some color 
 to such refusal) sometimes pretends that he never had 
 or received any such sum or sums of money of your 
 orator as aforesaid, and that he never made and execu- 
 ted any such indenture as aforesaid, and that he goes 
 out and pretends that there are many other mortgages, 
 charges and encumbrances affecting the said premises 
 made and executed by him, or some person under whom 
 he claims, prior in point of time to that made by him 
 to your orator. (Whereas, &c., then follows the charg- 
 ing part hereafter cited.) 
 
 §43. In England, this confederacy clause, though 
 generally introduced, is not necessary. ^ In this coun- 
 try, as we have seen, both in the United States Circuit 
 Courts and in the Virginia State Courts, it is usually 
 omitted. 
 
 M 1 Dan. Ch. Pr., 483. 
 
FOP.M OF BILLS. l9 
 
 5. Charging Part. 
 
 §44. This part of an English bill is as follows : "Where- 
 as your orator chargeth the truth to be that the said C. 
 D. did receive of your orator the said sum of money, and 
 that he did execute the indenture aforesaid. And your 
 orator further charges that if there are any mortgages, 
 charges, or encumbrances affecting the said mortgaged 
 premises, or any part thereof, they are subsequent to 
 your orator's said mortgage ; and your orator farther 
 charges, that the said mortgaged premises are a scanty 
 security for the repayment of what is due for principal 
 and interest upon the said mortgage ; all which actings, 
 doings, and pretences of the said defendant, are con- 
 trary to equity and good conscience, and tend to the 
 manifest wrong and injury of your orator in the pre- 
 mises." 
 
 § 45. The practice which now prevails in England of 
 inserting this clause, is said to have originated in order to 
 obviate the necessity of setting forth by a special repli- 
 cation additional facts in avoidance of new matter 
 introduced by the defendant's plea or answer. 
 
 § 46. Though it would appear to be more necessary that 
 this feature of the English bill should be retained, the 
 special replication having gone out of use, it is not 
 usual to insert this clause in bills drawn in this 
 country. ^ 
 
 35 Whenever the plaintiff deems hia bill not properly adapted to his 
 case, he obtains leave to file and does file an amended or supplemental 
 bill adapted to the defence. — Kent C. J. in James v. MoKennon, 6 John. 
 Rep. S64. 
 
20 FORM OF BILLS. 
 
 6. Averment of Jurisdiction. 
 
 § 47. This part of an English Bill runs thus : " In ten- 
 der eonsideratiott whereof, and for as much as your orator 
 is; remedilesa in the- premises hy the strict rules of com- 
 mon law, and cannot have ade<5[iiate relief except in a 
 court of equi^iy where matters of this, kind are properly 
 eogQizahl& and relievaHe." The form is the same when 
 uaed here, in the United States Circuit Courts and in 
 the Virginia State Courts. 
 
 §. 48. This- clause, it is said, was originally intended for 
 the purpose of giving the court jurisdiction. The 
 makiag of this averment does not give the court juris- 
 diction where it had it not otherwise, and, it has been 
 settled, that the omission of this averment will not 
 deprive the plaintiff of relief. 
 
 §r 49'. The Eules of the Supreme Court of the United 
 States provide that it may be omitted in bills filed in 
 the Circuit Courts of the United States. 
 
 § 50. In bills filed in the Virginia State Courts, it is 
 usually inserted, thougji of no utility. 
 
 7. Interrogating Part. 
 
 § 51. The bni having shown the title of the persons 
 complaining to relief,, and that the court has jurisdic- 
 tion for the purpose, prays that the parties defendant 
 may answer all the matters contained in the former 
 part of the bill,, not only according to their positive 
 knowledge of the facts stated, but also according to 
 their remembrance, the information they have received 
 and the belief they are enabled to form on the sub- 
 ject. ^^ 
 
 36 Mitf. Plea. 51. 
 
FORM OP BILLS. 21 
 
 § 52. Experience having proved that the substance 
 of the matters stated and charged in a bill may fre- 
 quently be evaded by answering according to the let- 
 ter only, it has become a practice to add, to the gen- 
 eral requisition that the defendants should answer the 
 contents of the bill, a repetition by way of inter- 
 rogatory, of the matters most essential to be an- 
 swered ; adding to the inquiry after each fact, an 
 inquiry of the several circumstances which may be 
 attendant upon it, and the variations to which it may 
 be subject, with a view to prevent evasion, and compel 
 a full answer.^' This is commonly called the inter- 
 rogating part of the bill; and as it is used only to 
 compel a full answer to the matters contained in the 
 former part of the bill, it must be founded on those 
 matters.^' 
 
 § 53. The 40th Rule of the Supreme Court prescribed 
 that in the United States Circuit Courts a defendant 
 should not be bound to answer any statement or charge 
 in the bill, unless specially and particularly interro- 
 gated thereto, or any interrogatory in the bill, except 
 such as he was specially required to answer; but this 
 rule has been repealed.^^ By another rule of the same 
 court, the interrogatories contained in the interro- 
 gating part of the bill were required to be divided 
 as conveniently as may be from each other, and num- 
 bered consecutively 1, 2, 3, &c., and the interrogate-' 
 ries which each defendant was required to answer, to 
 be specified in a note at the foot of the bill, in the fol-^ 
 lowing form : " The defendant, A. B., is required to 
 
 3r 1 Dan. Ch. Pr., 487, Mitf. Plea. 51. 3S 1 Dan. Ch. Pr., p. 487. 
 
 =9 See XCIII. Rule printed in Appendix. 
 
22 FORM OF BILLS, 
 
 answer the interrogatories numbered respectively 1, 2, 
 S, kc," and by another rule of the same court, it was 
 provided that instead of the words of the bill as used 
 in the High Qourt of Chancery of England, preceding 
 the interrogatory part, these shall be used : "To the 
 end, therefore, that the said defendants may, if they 
 can, show why your orator should not have the relief 
 hereby prayed, and may, upon their several and re- 
 spective corporal oaths, and according to the best and 
 utmost of their several and respective knowledge, re- 
 membrance, information, and belief, full, truei, direct, 
 and perfect answer make to such of the several inter- 
 rogatories hereinafter numbered and set forth, as by 
 the note here under written, they are respectively re- 
 quired to answer; that is to say — 1. Whether, &c. 
 2. Whether, &c." How far these several rules are 
 affected by the 92nd rule, may be readily determined 
 on reference to that rule. 
 
 § 54. It has been already stated, that in the Virginia 
 State courts the interrogatory clause is inserted, though 
 usually with not such particularity as in English bills. ■ 
 
 § 55. The interrogatory clause in an English bili is 
 now like that contained in section 53. Formerly it was 
 as follows: "To the end, therefore, that the said C. 
 p. and his confederates, when discovered, may, upon 
 their several and respective oaths, according to the 
 best and utmost of th6ir several and respective know- 
 ledge, remembrance, information and belief, a full, true, 
 direct and perfect answer make to all and singular 
 the matters aforesaid, and that as fully as if the same 
 were here repeated and they particularly interrogated 
 thereto ; and more especially that the said defendant 
 may, in manner aforesaid, answer and set forth, whe- 
 
irOEM OF BILLS. 23 
 
 ther, (here insert interrogatories to probe the conscience 
 of defendants.)" 
 
 8. Prayer for Relief. 
 
 § 56. Although there is no doubt but that a mere prayer 
 for general relief would in most cases, if not in all, be 
 sufficient to enable the plaintiff to obtain such a decree 
 as his case entitles him to, yet it is the usual and more 
 convenient practice to precede the request for general 
 relief by a prayer for the specific relief which the 
 plaintiff desires.*^ 
 
 § 57. This part of an English bill is as follows : 
 
 Special Relief. — "And that it may be referred to 
 one of the masters of this honorable court to take 
 an account of what is due to your orator for prin- 
 cipal and interest on his said mortgage security from 
 the said defendant, and that the said defendant may 
 be decreed to pay to your orator what shall be 
 found due on such account, by a short day to be 
 appointed by this honorable court in that behalf, to- 
 gether with your orator's ^aMtae -; and, in default, that 
 the said C. D., and all persons claiming under him, 
 may be forever barred and foreclosed of and from all 
 right of redemption of, in, and to the said mortgaged 
 premises, or any part thereof; and may deliver up to 
 your orator all deeds, papers, or writings, in his custody 
 or power, relating to or concerning the said mortgaged 
 premises." ♦ 
 
 Gfeneral Belief. — And that your orator may have all 
 such farther and other and general relief in the prem- 
 
 41 The Rules of Supreme Court United States require plaintiff to pray 
 for special relief. An injunction ought always to be prayed for spe- 
 cially. — Eden on Injs., 49. 
 
24 1?0RM OF BILLS. 
 
 isesAs the nature of his case may require, or to equity 
 shall seem meet." 
 
 v, § 58. The prayer for general relief can never be safely 
 'omitted, because if the plaintiff should in his special 
 prayer mistake the due relief, it may be given under 
 the general prayer if consistent with that which is 
 actually prayed. ^ 
 
 9. Prayer for Process. 
 
 § 59. The following is the prayer for process in an Eng- 
 lish bill : "May it please your Lordship to grant unto your 
 orator his Majesty's most gracious writ of subpoena to 
 be directed to the said W. B., thereby commanding 
 him, at a certain day and under a certain pain therein 
 inserted, personally to be and appear before your 
 Lordship in this honorable court, then and there to 
 answer the premises." 
 
 §60. It will be observed that, in this form, the process 
 is prayed tp be directed to the party defendant. This 
 is not the practice either in the United States Circuit 
 Courts or in the Virginia "State courts. All process, 
 here, is directed to oiEcers of the court. The prayer 
 for process of subpoena in the United States Circuit 
 Courts should contain the names of alt the defendants 
 named in the introductory part of the bill ; and if any 
 of them are known to be infants under age, or other- 
 wise under guardianship, should state the fact. This 
 is required by the 23d rule of Supreme Court. The 
 prayer for process in United States Circuit Courts is 
 as follows: "May it please the honorable court to grant 
 
 43 Adams Equity, 565. If a bill contains no prayor either for specific 
 or general relief, it is considered as a bill of discovery only. See post. 
 
FORM OP BILLS. 25 
 
 a vrrit of subpoena, directed to the Marshal of the Dis- 
 trict of , and commanding the said to appear 
 
 and make answer unto this bill of complaint and to 
 perform and abide by such orders and decrees herein 
 as to the court may seem required by the principles of 
 equity and good conscience." 
 
 Ill the Virginia State courts, the prayer for process 
 is not unfrequently omitted altogether, and when in- 
 serted is usually drawn in terms such as these : " That 
 proper process may be directed against the several de- 
 fendants hereinbefore named;" and is oft-times used in 
 the bill before the prayer for general relief, thus : " that 
 " proper process may be directed against the several 
 " defendants herein-before named, and that your orator 
 " may have all such farther and other and general relief 
 " as the nature of his case may require, or to equity 
 "may seem meet.' 
 
 § 61. Beside these several parts of bills, there are 
 other requisites necessary to be attended to in their 
 preparation; some equally applicable to every bill, 
 others alone proper in bills designed for special purposes. 
 
 § 62. Thus, to every bill the signature of counsel 
 should be» affixed*^ ; to a bill of injunction, beside the 
 special prayer for the restraining order of the court or 
 judge, an aiEdavit of the truth of the statements made 
 
 43 This is specially required in bills filed in United States Circuit Courts, 
 by the 24th rule of United States Supreme Court. In the Virginia State 
 Courts the rules of practice which each Equity Court adopts for its own 
 gorernment, generally requires the signature of counsel to hills j but the 
 practice is very loose in those courts, and in many instances the counsel 
 does not affix his signature. In England, the rule is imperative that the 
 signature of counsel must be subscribed to every bUl before it is filed, 
 (Mitf. PI. 48 ;) and if it be not, the bill will bo dismissed on the defendant's 
 demurrer. 1 Dan. Ch. Pr. 409. 
 
 3 
 
26 INFOKMATIONS. 
 
 in the bill should be annexed; and an affidavit is also 
 required in bills of discovery, and in other species of 
 bills. 
 
 § 63. The reader will find in the Appendix to this 
 volume, complete forms of bills as exhibited in the 
 English courts, in the United States courts, and in the 
 Virginia State courts, showing the several parts of the 
 bill in juxta-position. 
 
 INFORMATIONS. 
 
 • § 64. Of their matter. Informations in every respect 
 follow the nature of bills, except in their style. When 
 they concern only the rights of the State or of those 
 whose rights the State takes under its particular protec- 
 tion, they are generally exhibited in the name of the 
 Attorney General as the informant.* In the latter 
 case always, and sometimes in the former, a relator is 
 named, who in reality sustains and directs the suit. It 
 may happen that this person has an interest in the 
 matter in dispute, and sustains the character of plaintiff 
 as well as relator ; in such event, the pleading is styled 
 an "information and bill." The proceedings upon an 
 information can only abate by the death or determina- 
 tion of interest 'of the defendant. 
 
 § 65. Of their form. The difference in form between 
 an information and a bill consists merely in offering the 
 subject matter as the information of the officer in whose 
 name it is exhibited, at the relation of the person who 
 suggests the suit, in those cases where a relator is 
 named, and in stating the acts of the defendant to be 
 
 *In some cases other officers of the State, and of the United States, are 
 necessary plaintiffs. 
 
PROCEEDINGS AT BULBS. 27 
 
 injurious to the State or to those whose rights the State 
 thus endeavors to present. When the pleading is at the 
 same time an information and bill, it is a compound of 
 the forms used for each, when separately exhibited. 
 
 § 66. Forms of information separately and of an in- 
 formation and bill combined, may be seen in the Ap- 
 pendix to this volume. 
 
 CHAPTER III, 
 
 Of the filing of the hill or information and subsequent 
 proceedings at rules, in Virginia State (hurts, and 
 of proceedings at rules in United States Circuit 
 Courts. 
 
 FILING OF BILL. 
 
 § 67. In the Virginia State Courts, if the plaintiff 
 has not previously filed his bill or information, he may 
 do so at the next rules after the summons has been 
 issued, or at any subsequent rule day.^ Care should be 
 taken, however, to file it at an early date after the 
 service of process upon one or more of the defendants ; 
 otherwise, the suit may be dismissed, on account of the 
 
 1 In injunction bills, ne exeat bills and tbe like, requiring tbe action of 
 the judge or court directing restraining process, the bill is uniformly filed 
 before process issues. 
 
28 VIRGINIA STATE" COURTS. 
 
 failure to file it,^ and, in case the defendant has appeared 
 and given a rule, the plaintiflf will be required to pay the 
 defendant five dollars beside his costs.^ 
 
 DECREE NISI, RULE TO PLEAD. 
 
 § 68. If the summons has been executed on any party 
 defendant, such party will be required to appear at the 
 rule day at which the process against him is returned 
 executed, or, when it is returnable to a term, at the first 
 rule day after it is so returned ; and on his failure to 
 appear, the plaintiff, if he has filed his bill, may have 
 entered a decree nisi as to such defendant ;^ when 
 defendant has appeared, yet fails to plead, answer or 
 demur to the bill when filed, the plaintiff should give 
 him a rule to plead.^ 
 
 BILL TAKEN FOR CONFESSED. 
 
 § 69. A^ the next rules after the decree nisi has been 
 entered, or a rule to plead given, if the defendant 
 continue in default, the bill will be entered as taken for 
 confessed as to him,^ and the plaintiff may at. the same 
 rules, or at a succeeding rules, have the cause set for 
 hearing as to such defendant.^ 
 
 PLEA AND DEMURRER. 
 
 § 70. Usually, the defendant either pleads, demurs or 
 answers to the bill at rules.* 
 
 2 See see. 8 and 9, ante p. 5. ' See sec. 8, ante p. 5. 
 
 4 Code of Virginia, chap. 171, sec. 42. The form of a decree nisi may be 
 seen in the Appendix to this volume. 
 
 5 Code of Virginia, chap. 171, sec. ii. 6 Ibid. 
 7 Ibid, chap. 171, sec. 48. b See post. 
 
PEOCBBDINGS AT RULES. 29 
 
 § 71. If the defendant plead or demur, the plaintiff 
 may have the plea or demurrer set down for argument ; 
 and should it be over-ruled, no other plea or demurrer 
 ■will afterwards be received, but there will be a rule on 
 the defendant to answer the bill.' Or, in case of a plea, 
 the plaintiff may take issue upon it, and the issue will 
 be tried by a jury ; if the plea be found false, the 
 plaintiff will have the same advantage as if it had been 
 so found by verdict at law.'" 
 
 FILING OF ANSWER, REPLICATION, &C. 
 
 § 72. The Virginia statute provides that a defendant 
 at any time before a final decree, may be allowed to file 
 his answer ; but a cause shall not be sent to the rules or 
 continued, because an answer is filed on it, unless good 
 cause be shown therefor ;" yet, after the suit has been 
 set for hearing at the rules as to any defendant, it is 
 the practice of clerks not to enter an answer as filed, 
 unless directed to file it by an order of court ; and the 
 propriety of this practice has never been questioned. 
 
 § 73. When the answer is filed, if it be filed at rules, 
 the plaintiff may reply or except, or may have the 
 cause set for hearing on the answer alone, at the rules 
 at which it is filed.^^ 
 
 § 74. If the plaintiff file a general replication, the 
 cause will be set for hearing. 
 
 9 Code of Virginia, chap. 171, sec. 32. lo Ibid, sec, 33, 
 
 11 Code of Virginia, chap. 171, sec. 34. 
 
 12 Ibid, sec, 48. Formerly, special replications were in use. Their 
 place is now supplied by an amendment of the bill whenever the plaintiff 
 deems his bill not properly adapted to his case ; and general replications 
 are alone used in this country and in England. See ante, note 35, p. 19. 
 
30 VIKGINIA STATE COURTS. 
 
 § 75. When the plaintiff files exceptions to the answer, 
 they are set down for argument, and, if the exceptions 
 be sustained, the defendant will be required to answer 
 anew, to which plaintiff may either, reply or except as 
 before. Should the defendant put in a second answer 
 which is adjudged insufficient, he may be examined upon 
 interrogatories, and committed until he answers them.'* 
 
 WHEN SUIT SET FOR HEARING BY DEFENDANT, AND 
 
 defendant's right to have cause heard AS TO 
 
 HIMSELF. 
 
 § 76. If four months ekpse after the answer of a 
 defendant is filed, without the cause being set for 
 hearing by the plaintiff, and without exceptions being 
 filed to the answer, the defendant may have the cause 
 set for hearing as to himself," and is, moreover, entitled 
 to have the suit heard as to him, unless his interests be 
 so connected with those of other defendants in the suit 
 that it would be improper to decide upon their interests 
 separately^' ; and, even though there be such connection 
 of interests, such defendant may have an order upon 
 the plaintiff to use due diligence to mature the cause 
 for hearing as to the other defendants, and imless it be 
 so matured within such time as the court may deem 
 reasonable, such defendant will be entitled to a hearing 
 or dismission of the suit as to him.'^ 
 
 INFANTS OR INSANE DEFENDANTS. 
 
 § 77. Should there be an infant or insane defendant, 
 a guardian ad litem may be appointed to defend his 
 
 13 Code of Virginia, chap. 171, sec. 36. 
 
 14 Code of Virginia, chap. 171, sec, 48. '^ Ibid, sec. 50. 
 16 Code of Virginia, chap. 171, sec. 50. 
 
PROCEEDINGS AT RULES. 31 
 
 interest, by the clerk at rules, whether the infant or 
 insane defendant has been served with process or not ; 
 and the court may compel the person so appointed to 
 act, but he shall not be liable for costs, and shall be 
 allowed his reasonable charges, which the party on 
 whose motion he was appointed shall pay." 
 
 ABSENT OR UNKNOWN DEPENDANTS. 
 
 § 78. It not unfrequently happens that one or more 
 of the parties defendant reside beyond the borders of 
 the State, or are unknown to the party plaintiff. In 
 such cases, if the ordinary process of summons was 
 alone resorted to, the plaintiff would never be able to 
 secure a hearing of his cause. To meet these contin- 
 gencies, the Virginia Statute has provided that on 
 affidavit that a defendant is not a resident of this State, 
 or that diligence has been used by or on behalf of the 
 plaintiff to ascertain in what county or corporation he 
 is, without effect, or that process, directed to the officer 
 of the county or corporation in which he resides, or is, 
 has been twice delivered to such officer more than ten 
 days before the return day, and been returned without 
 being executed, an order of publication may be entered 
 against such defendant ; and further provides, that in 
 any suit in equity where the bill states that the names 
 of any persons, interested in the subject to be divided or 
 disposed of, are unknown, and makes such persons 
 defendants, by the general description of parties un- 
 
 17 Code of Virginia, chap. 1?1, see. 16. The guardian ad litem, in 
 Virginia, usually files a formal answer, submitting the interests of the 
 infant or insane defendant to the protection of the Court. .He may, 
 however, if he deems it necessary, take the same mode of defence with 
 other defendants, by plea or demurrer, or by an answer either contra- 
 dicting or afBrming the statements of bill. 
 
32 VIRGINIA STATE OOUKTS. 
 
 known, an order of publication may be entered against 
 sucb unknown parties.^^ 
 
 § 79. This order of publication must state briefly the 
 object of the suit, and require the defendants against 
 whom it is entered, or the unknown parties, to appear 
 within one month after the due publication thereof, and 
 do what is necessary to protect their interests.^^ 
 
 § 80. The order should be published once a week, in 
 such newspaper as the court may prescribe, or, if none 
 be so prescribed, as the clerk may direct, and should 
 be posted at the front door of the court-house of the 
 county or corporation wherein the court is held, on the 
 first day of the next county or corporation court after 
 it is entered.^ 
 
 § 81. When these requirements of the Virginia statute 
 are complied with, if the defendants against whom the 
 order of publication has been entered, or the unknown 
 parties, do not appear within one month after the pub- 
 lication is completed, the case may be tried or heard as 
 to them, and the court may enter such decree or order 
 upon such trial or hearing, as may appear just.^^ 
 
 18 Code of Virginia, chap. Ill, sec. 10. is Ibid, sec. 11. . 
 
 20 Code of Virginia, chap. 171, sec. 11. 
 
 21 Ibid, sec. 12. When a trial is had under such circumstances, the 
 Statute provides that the unknown party or other defendant, who was not 
 served with process and did not appear in the case before the date of the 
 decree or order, or the representative of any such, may, within five years 
 from that date, if he be not served with a copy of such decree or order, 
 more than a year before the end of the said five years, and if he be so 
 served, then, within one year from the time of such service, petition to 
 have the cause re heard, and may plead or answer, and have any injustice 
 in the proceedings corrected. Code of Virginia, chap. 170, sec. 13. 
 
PROCESS OF CONTEMPT. 83 
 
 PEOCBSS OF CONTEMPT. 
 
 § 82. It sometimes happens that a defendant neither 
 demurs, pleads nor answers. When this is the case, as 
 we have already seen, the plaintiff may have his hill 
 taken for confessed, and the cause set for hearing. 
 There are instances, however, in which the plaintiff 
 deems it proper to compel an answer from the defen- 
 dant ; and, in such cases, he may, in the Virginia State 
 Courts, either obtain an order to bring in the defendant 
 to answer interrogatories, or he may resort to what is 
 termed in the law books the "process of contempt." 
 
 § 83. The process of contempt in England was ori- 
 ginally intended to compel an answer, and in default 
 of an answer, the Court might take the bill pro con- 
 fesso, and would proceed to decree against the defen- 
 dant, on the assumption of its truth. As has been 
 seen, in the Virginia State Courts the bill may be 
 taken for confessed without resorting to this process ; 
 and it is resorted to l^e, as stated in the last section, 
 for the purpose of compelling an answer, whether the 
 bill has or has not been taken for confessed. 
 
 § 84. In England, the processes of contempt were 
 originally five ; and, though by subsequent legislation 
 in that country, these steps have been considerably 
 shortened, yet here they remain the same. Adams, in 
 his late treatise on Equity, sums up- these processes as 
 follows : 
 
 " 1st. A writ of attachment directed to the sheriff of 
 the defendant's county, commanding that the defend- 
 
34 VIRGINIA STATE COURTS. 
 
 ant's person should be attachecl.^^ To this writ the 
 sheriiF might return, 1. That he had the defendant in 
 custody ; 2. That he had taken him but had accepted 
 bail ; 3. That he could not find him within his bail- 
 iwick. On the first of these returns being made, the 
 defendant was brought up by habeas corpus, on the 
 second by the messenger of the Court, or the serjeant- 
 at-arms, and in either case was committed to the Fleet, 
 now altered to the Queen's Prison. On the third re- 
 turn, that of non at inventus, the next process of 
 contempt issued. 
 
 " 2d. A writ of attachment with proclamations ; on 
 which the same returns might be made, and the same 
 results would follow.^ 
 
 '^ The form of this writ is as follows : 
 " George the Third, by the grace of God, of Great Britain, France and 
 
 Ireland King, Defender of the Faith, and so forth, to the sheriff of 
 
 Wiltshire, greeting : 
 
 " We command you to attach Edward Willis, so as to hare him before 
 us, in our court of chancery, whereaoTer the said court shall then be, 
 there to answer to us, as well touching a contempt which he, as is 
 alledged, hath committed against us, a^ al^ such other matters as shall 
 then be laid to his charge \ and further to^ibide such order as our said 
 court shall make in this behalf; and hereof fail not, and bring this writ 
 with you, 
 
 " Witness ourselves at Westminster, the > day of , in the 
 
 33d year of our reign. Arden. 
 
 Winter." 
 
 Indorsed, "By the court, at the suit of James Willis, for want of 
 appearance," (or answer.) 
 
 Label. To the sheriff of Wiltshire. 
 
 " An attachment against Edward Willis for not appearing at the suit of 
 James Willis, returnable in ," Ac. 
 
 ^ The foria of this writ is as follows : 
 " George the Third, by the grace of God, of Great Britain, France and 
 
 Ireland, King, Defender of the Faith, and so forth, to the sheriff of 
 
 Middlesex, greeting: 
 
 " We command you, on our behalf, to cause public proclamation to be 
 made in all places within your bailiwick, as well within liberties as 
 
PROCESS OF CONTEMPT. 35 
 
 " 3d. A writ of rebellion directed to commissioners 
 appointed by the Court, and extending into all the coun- 
 ties of England. On this process no bail could be 
 taken ; but the commissioners either brought the de- 
 fendant up in custody, on -which he was committed to 
 the Fleet ; or made a return of non est inventus, upon 
 which followed,^* 
 
 " 4th. An order that the serjeant-at-arms, as the ini- 
 mediate officer of the Court, should effect the arrest. 
 If an arrest were made under this process, it was fol- 
 
 without, wheresoever you shall think it most convenient, that Edward 
 
 Willis do, upon his allegiance, on the day of ■ — — personally appear 
 
 before us, in our court of chancery, wheresoever it shall then be; and, 
 nevertheless, in the mean time, if you can find the said Edward Willis, 
 attach him, so as to have him before us, in our said court, at the time 
 before mentioned, there' to answer to us, as well touching a contempt, &c, 
 (Ab in the single attachment.)" 
 
 ^ The form of this writ is as follows : 
 " George the Third, by the grace of God, of Great Britain, France and 
 
 Ireland, King, Defender of the Faith, &b., To Bamber Tyler, William 
 
 Fowler, John Miller, and Thomas Porter, greeting : 
 
 " Whereas, by public proclamations made on our behalf, by the sheriff 
 of Middlesex, in divers place^of that county, by virtue of our writ to him 
 directed, Edward Willis hat^been commanded upon his allegiance, per- 
 sonally to appear before us in our court of chancery, at a certain day, now 
 past ,' yet he hath manifestly contemned our said command ; therefore, we 
 command you jointly and severally, to attach, or cause the said Ed?rard 
 Willis to be attached, wheresoever he shall be found, within our kingdom 
 of Great Britain, as a rebel and contemner of our laws, so as to have him 
 or cause him to be before as in our said court, on, 4&c., wheresoever it shall 
 then be, to answer to us, as well touching the said contempt as also such 
 matters as shall be then and there objected against him, and further to 
 perform and abide such order as our said court shall make in this behalf. 
 And hereof fail not. We also hereby strictly command all and singu- 
 lar, mayors, sheriffs, bailiffs, constables, and other our officers and loyal 
 servants and subjects, whomsoever, as well within liberties as without, that 
 they, by all proper means, diligently aid and assist you, and every one of 
 you, in all things in the execution of the premises. In testimony whereof 
 we have caused these our letters to be made patent. Witness oursclf at 
 
 Westminster, the day of , in the thirty-fourth year of 
 
 our reign." 
 
36 VIRGINIA STATE COURTS. 
 
 lowed, like other arrests, by committal to the Fleet. 
 But if the return were non est inventus, there was no 
 further process against the person.^ 
 
 *' 5th. A writ of sequestration, issuable only on the 
 return non est inventus of the serjeant-at-arms, or on 
 a defendant in custody being committed to the Fleet. 
 .This writ was issued, not against the person, but against 
 the property of the defendant, and authorized the se- 
 questrators to take his goods and personal estate, and 
 to enter on his real estate, and to sequester the rents 
 and profits.^^ If the sequestration proved ineffectual, 
 there was no further process." 
 
 ^ This order is as follows : 
 "James Wilms, - - - - - Complainant. 
 
 V8. 
 
 Edward Willis and Wm. Willis, - Defendants. 
 
 " Whereas the said defendant hath sit out all process of contempt to a 
 commission of rebellion^ for want of his answer to the plaintiff's bill, as by 
 the same under the seal of this Court, and the commissioners' certificate 
 thereupon indorsed, whereby the said commissioners do certify that the 
 said defendant doth abscond himself so that he cannct be taken there- 
 upon, now produced, appears ; it is therefore ordered, upon the motion 
 of Mr, , being of the plaintiff'Ajounsel, that the serjeant-at- 
 
 arms, attending this Court, do apprehend the said defendant, and bring 
 him to the bar of this Court to answer the said contempt." 
 
 * The form of this writ is as follows : 
 
 " George the Third, &c. *fcc. To Samuel Leghorne, Peter Wilkins, Isaac 
 Jones, &c. Whereas James Willis, complainant, exhibited his bill of 
 complaint in our court of chancery, against Edward Willis and William 
 Willis, defendants, and whereas the said Edward Willis, being duly served 
 with a writ issuing out of our said court, commanding him under the 
 penalty therein mentioned, to appear to and answer the said bill, has 
 refused so to do, and thereupon, all process of contempt has issued 
 against^ him, unto a sergeaut-at-arms : And, whereas, the said Edward 
 Willis has of late absconded, and so concealed himself, that the sergeant- 
 at-arms has not been able to find him, as by the certificate of the said 
 sergeant appears : Know ye, therefore, that we, in confidence of your 
 prudence and fidelity, have given, and by these presents do give to you, 
 any throe or two of you, full power and authority to enter upon all the 
 messuages, lands, tenements, and real estate whatsoever, of the said 
 
PROCESS OF CONTEMPT. 37 
 
 § 85. The question -will naturally suggest itself to 
 the reader, how the third and fourth steps of this pro- 
 cess may be taken in the Virginia State Courts. This 
 question will be left for discussion in the Appendix to 
 this volume. The reader will there find, also, the 
 forms of these various processes as now used in the 
 Virginia State Courts, and the United States Courts. 
 
 § 86. In the case of a corporation which cannot be 
 attached, the first step in the process of contempt is 
 by distringas,^ and the second by sequestration. There 
 is this further difference between the process of con- 
 
 Edward Willis, and to take, eolleot, receive and sequester into your 
 hands, not only all the rents and profits of the said messuages, lands, 
 tenements and real estate, but also all his goods, chattels and personal 
 estate whatsoever ; and, therefore, we command you, any three or two of 
 you, that you do at certain proper and convenient days, and hours, go to 
 and enter upon all the messuages, lands, tenements and real estate of the 
 said Edward Willis; and that you do collect, take and get into your 
 hands, not only all the rents and profits of all his real estate, but also, 
 all his goods, chattels and personal estate, and keep the same under se- 
 questration, in your hands, until the said Edward Willis shall fully 
 answer the complainant's bill, and clear his contempts, and our said court 
 make other order to the contrary. 
 
 " Witness, ourself, at Westminster, the day of , in the 
 
 33d year of our reijp. Auden. 
 
 WiNTEB." 
 
 ^ The form of this writ [in England] is as follows : 
 " George the Third, <4o., to the sheriff of the city of London, greeting — 
 
 " We command you to make a distress on the lands and tenements, 
 goods and chattels, of the mayor, commonalty and citizens of our said 
 city of London, within your bailiwick; so as neither the said mayor, 
 commonalty and citizens, nor any other person or persons for them, may 
 lay his or their hands thereon, until our court of chancery shall make 
 other order to the contrary ; and, in the mean time, you are to answer to 
 us for the said goods and chattels, and the rents and profits of the said 
 lands, so that the said mayor, commonalty and citizens, may be compelled 
 to appear before us, in our said court of chancery, wheresoever it shall 
 then be, there to answer to us, as well touching a contempt, &g. (as in the 
 attachment,) Witness, &c. Aeden. 
 
 Winter." 
 
 4 
 
38 VIRGINIA STATE COURTS. 
 
 tempt, as against a corporation and private persons : a 
 sequestration may be stayed, in the case of the latter, 
 on their entering their appearance ; in the case of the 
 former, it cannot.^' 
 
 ORDER TO BRING IN DEFENDANT TO ANSWER 
 INTERROGATORIES. 
 
 § 87. As was stated' in the eighty-second section, 
 there is another method provided for compelling an- 
 swers from a defendant, in the Virginia State Courts. 
 The party plaintiff may obtain an order for the defend- 
 ant to be brought in to answer interrogatories ; and 
 this may be done, though the bill has already been 
 taken for confessed as to such defendant.^' This course 
 is attended with less embarrassing questions than the 
 regular process of contempt, and, on that account, is 
 preferable in all cases where there is no paramount 
 reason for resorting to that process. 
 
 DEATH, MARRIAGE, OR LUNACY OF PARTIES, &C. 
 
 § 88. In the English Courts, when a party dies, or a 
 female party marries, a bill of revivor is necessary to 
 bring the personal representative, heirs and devisees of 
 the deceased party in the one case, and the husband in 
 the other, before the Cour:. This, also, is the practice 
 in the United States Courts, as will be seen on refer- 
 ence to the 56th and 57th rules of the United States 
 Supreme Court, printed in the Appendix to this volume. 
 This course is not necessary in the Virginia State 
 Courts. In either of the cases mentioned, if the party 
 dying, or female party marrying, be a plaintiff, the 
 
 23 Barton's Suit in Equity, by Holcombe, 92. 
 29 Code of Virginia, chap. 171, sec. 46. 
 
DEATH, MARRIAGE, LUNACY OF PARTIES, AC. 39 
 
 personal representative, heirs and devisees of deceased 
 party, or husband and wife, may move the Court that the 
 suit proceed in his or their name ; and if no sufficient 
 cause be shewn against it an order will be entered that 
 the suit proceed according to such motion^"; if, how- 
 ever, the party dying, or female party marrying, be a 
 defendant, then a writ of scire faeiaa, the form of which 
 will be given in the Appendix, is necessary, and after 
 service of this writ upon the personal representative 
 [heirs or devisees, if necessary parties to suit,] of de- 
 ceased party, in the one case, and the husband and wife 
 in the other case, if no sufficient cause be shewn against 
 it, an order will be entered that the suit proceed accord- 
 ing to such scire facias against the personal representa- 
 tive [heirs or devisees] of the deceased party, or the 
 husband and wife.^^ 
 
 § 89. And so, too, when a party becomes convict of 
 felony, or insane, or the powers of a party who is a per- 
 sonal representative or committee cease, if such party 
 be a plaintiff, the cause may be proceeded in on simple 
 motion, as mentioned in the eighty-eighth section; if 
 he be a defendant, then a scire facias may be issued 
 and the like proceedings had as on a scire facias issued 
 in the cases mentioned in that section.'^ 
 
 § 90. The writ of scire facias may be issued at any 
 time and made returnable to a day in Court or to a rule 
 day, and, when returnable to a rule day, the clerk will 
 make the necessary order of revival in his rule book, if 
 no sufficient cause be shewn against it^ ; and it is de- 
 
 30 Code of Virginia, chap. 173, sec. 3. 3i Ibid. 32 Ibid. 
 
 33 The extent of the powers of the clerk in this regard seem not to he 
 very well defined. It is presumed, in the absence of precedent or express 
 
40 UNITED STATES CIRCUIT COUETS. 
 
 clared |?y statute that an order may be entered at rules 
 for a case to proceed in the name of the proper party, 
 although the case be on the Court docket.^^ 
 
 § 91. When, however, in any case, the party whose 
 powers cease is a defendant, the party plaintiff will not 
 be allowed to proceed, upon his previous bill, against 
 such defendant and his successor, unless an order that 
 the suit proceed against the former party be entered 
 at the first term after service of a scire facias for or 
 against such successor.^ 
 
 UNITED STATES CIRCUIT COURTS. 
 
 § 92. The practice in causes at riiles in these courts 
 differs materially from the practice of the Virginia State 
 Courts. Uniformly, in those courts, the bill is filed be- 
 fore any step is taken in the cause. The process issued 
 upon the filing of the bill is a subpoena, differing some- 
 what in form from the summons issued in the Virginia 
 State Courts. The mode of holding the rules and the 
 time of holding them are also different, while, in nearly 
 every step, there are greater or less discrepancies be- 
 tween the two modes of practice. The reader is re- 
 ferred to the chapter of this work treating particularly 
 of United States Circuit Courts, and to the Appendix, 
 in which he will find the rules of the United States 
 Supreme Court regulating the practice in the United 
 States Circuit Courts. 
 
 legialation npon the subject, that in case the clerk were not fully satisfied 
 he would refer the decision of the question of sufficient cause to the Court ; 
 and if the clerk undertook to decide, and did decide improperly, this im- 
 propriety might be corrected by the Court at its next term. See Code of 
 Virginia, chap. 171, see. 61. 
 M Code of Virginia, chap. 173, sec. 4. ss ibid. sec. 5. 
 
OF THE DEFENCE, 41 
 
 CHAPTEK IV. 
 
 Of the defence to suits in equity : of demurrers, pleas, 
 answers and disclaimers, 
 
 COITESB OF DEPENDANT. 
 
 § 93. Thus far, in this treatise, tie attention of the 
 reader has been principally directed to the case on the 
 part of the plaintiff, the method of stibmitting it to the 
 Court, and the means provided Iby the practice of 
 Equity Courts for compelling the defendant to appear 
 and answer the bill, or in case of his failure to appear 
 and answer, for giving the plaintiff the relief to which 
 the justice of his case appears to entitle him on the 
 facts as set forth in his bill. It is now proposed to 
 consider in what manner siiits in equity may be 
 defended. 
 
 § 94. As we have seen in the preceding chapter, ap- 
 pearances are either voluntary or compxilsory : volun- 
 tary, when the defendant comes in of his own accord, 
 before the writ has been served upon him, or after such 
 service, and before process of contempt has been sued 
 out against him ; compulsory, when he is compelled to 
 appear by the process of contempt. 
 
 § 94 a. By the rules 6i the Supreme Court of the 
 United States prescribing the mode of practice in the 
 United States Circuit Courts, and by the statutes of Vir- 
 ginia governing the practice in the Virginia State Courts, 
 a party appearing Voluntarily has privileges which he 
 would not enjoy if his appearance were compelled by 
 4* 
 
42 DEFENCE to SUITS IN EQUITY. 
 
 the process of attaeliment. The 18th rule of the Su- 
 preme Court of the United States provides, that " a 
 plaintiff, if he requires any discovery or answer to en- 
 able him to obtain a proper decree, shall be entitled to 
 process of attachment against the defendant to compel 
 an answer ; and the defendant shall not, when arrested 
 upon such jjroces's, he discharged therefrom, uriless ly 
 filing Ms ansioer, or otherwise complying with such 
 order as the Court or a judge thereof may direct, as to 
 pleading to or fully answering the bill within a period 
 to be fixed by the Court or judge, or undertaking to 
 speed the cause." The Virginia statute enacts that no 
 plea or demurrer shall be received of a defendant who 
 has been brought in by an attachment against him, un- 
 less by order of Court upon motion.'- 
 
 § 95. When, therefore, the appearance is not volun- 
 tary, defendant is compelled to file an answer, unless 
 he obtain special leave from the Court to take another 
 mode of defence. 
 
 § 96. AVhen, however, the appearance is voluntary, 
 the defendant may adopt either of these several de- 
 fences : 
 
 1. By demurrer, which, admitting the matters of fact 
 alleged by the bill to be true, shews that as they are 
 therein set forth they are insufficient for the plaintiff to 
 proceed upon or to oblige the defendant to answer.^ 
 2. By plea, when the cause, or some part of it, may by 
 denial or avoidance be stayed, or discharged by matter 
 foreign to the record, by which it will be reduced to a 
 single point.' 3. By answer, which, controverting the 
 case made by the plaintiff, confesses and avoids or tra- 
 
 I Code of Virginia, chap. 172, sec. 46. 2 Mitf. PI. 106, 108. 
 
 3 Mitf. PI. 219; II. Dan. Ch. Pr. 97. 
 
DEMURRER. 43 
 
 verses and denies the several parts of the bill, or, ad- 
 mitting the case made by the bill, submits to the judg- 
 ment of the Court upon it, or upon a new case made 
 by the answer, or both^ ; or, 4, by disclaimer, which at 
 once terminates the suit, the defendant disclaiming all 
 right in the matter sought by the bill. All these seve- 
 ral modes of defence, or any of them, may be used to- 
 gether, if applied to separate and distinct parts of the 
 bill.' 
 
 I. DEMURRER. 
 
 Gfeneral nature of demurrers. 
 
 § 97. Whenever any ground of defence is apparent 
 upon the bill itself, either from the matter contai:tled in 
 it, or from defect in its frame or in the case made by it, 
 the proper mode of defence is by demurrer.* 
 
 § 98. A demurrer is in substance an allegation by a 
 defendant, which, admitting the matters of fact stated 
 in the bill to be true, shews that as they are therein set 
 forth, they are insufficient for the plaintiff to proceed 
 upon or to oblige the defendant to answer'^; or that, for 
 some reason apparent on the face of the bill, or because 
 of the omission of some matter which ought to be con- 
 tained in it, or for want of some circumstance which 
 ought to be attendant thereon, the defendant ought not 
 to be compelled to answer. It therefore demands judg- 
 ment of the Court whether the defendant shall be com- 
 pelled to answer the complainant's bill, or that particular 
 part of it to which the demurrer applies.* 
 
 4 Mitf. PI. 106. 5 Ibid. 14. 
 
 6 n. Dan. Ch. Pr. 19; Mitf. PI. iOt. 
 
 7 Prac. Reg. 162. 
 
 8 II. Dan. Ch. Pr. 19 ; Mit. PI. 108. 
 
44 DEFENCE TO SUITS IN EQUITY. 
 
 § 99. A demurrer admits as true tte matters of fact 
 stated in the bill, or in ttat part thereof to -ffliicli de- 
 fendant demurs ; and so strictly is this rule observed in 
 the English Courts, that where a bill misstated a deed 
 by alleging it to contain a proviso which it did not, 
 Lord Cottenham, upon the argument of a demurrer to 
 the bill, refused to allow the defendant's counsel to 
 refer to the deed itself for the purpose of shewing the 
 incorrectness of the manner in which it was set out, 
 although the bill contained a reference, for "greater 
 certainty as to its contents, &c.," to the deed, as being 
 in the custody of the defendants.^ But while a de- 
 murrer confesses the matters stated in the bill to be 
 true, such confession is confined to those matters which 
 are well pleaded, i. e., matters of fact.'" It does not, 
 therefore, admit any matters of law which are sug- 
 gested in the bill or inferred from the facts stated ; for, 
 strictly speaking, arguments or inferences or matters of 
 law ought not to be stated in pleading." Nor will the 
 Court have any regard to facts averred in a bill which 
 has been demurred to, when they are contrary to any 
 fact of which the Court takes judicial notice}'^ 
 
 DISFBEBNT GROUNDS OF DBMUEREE. 
 
 § 100. A demurrer may be either to the relief prayed, 
 or it may be to the discovery only, or to both. If the 
 demurrer be good to [the whole] relief it will be so to 
 
 9 Campbell vs. Maokay, M. & Craig. 603, 613, cited by Daniellin his 
 Practice, II. vol. 20. 
 10 1 Ves. jr. 72, 78, 
 11 II. Dan. Ch. Pr. 21. 
 12 Ibid. 23. 
 
DEMURRER. 45 
 
 the discovery." When the demurrer is to part only of 
 the relief prayed, it will not protect the defendant from 
 a discovery, unless the discovery from which the protec- 
 tion is sought is specially pointed out.'" 
 
 Demurrers to original bills for relief. 
 
 § 101. The principal grounds of objection to the relief 
 sought by an original bill, which can appear on the bill 
 itself, and may therefore be taken advantage of by de- 
 murrer, are these : 1, that the subject of the suit is not 
 within the jurisdiction of a Court of Equity," [or not 
 within the jurisdiction of Court of Equity in which suit 
 is instituted;] 2, that the plaintiff is not entitled to 'sue 
 by reason of some personal disability'*; 3, that the 
 plaintiff has no interest in the subject or no title to in- 
 stitute a suit concerning it ; 4, that the plaintiff has no 
 right to call on the defendant [though he may have a 
 right to call on others,] concerning the subject of the 
 suit"' ; 5, that the defendant has not that interest in the 
 subject which can make him liable to the claims of the 
 plaintiff; 6, that for some reason founded on the sub- 
 stance of the case, the plaintiff is not entitled to the 
 relief he prays.'^ To these may be added, 7, the defi- 
 ciency of the bill to answer the purpose of complete 
 
 13 II. Dan. Ch. Pr. 24. See Mitf. PI. 110, 183. 
 
 14 II. Dan. Ch. Pr. 24. See note (1), p. 218, of Sixth American edition 
 of Mitford's Pleadings, hy Moulton. 
 
 >5 See Introduction to this work. 
 
 16 Ibid. 
 
 17 Ibid. 
 
 18 As, for instance, that the plaintiff's remedy is barred by lapse of time, 
 or that it appears by the bill that there is another suit depending for the 
 same matter. II. Dan. Gb. Pr. 85. 
 
46 DEFENCE TO SUITS IN EQUITY. 
 
 justice, as, for instance, the want of proper parties", 
 and, 8, the impropriety of confounding distinct subjects 
 in the same bill, -or of unnecessarily multiplying suits.^ 
 
 Demurrer to original hills for discovery. 
 
 § 102. The principal objections to a bill -which are 
 causes of demurrer to discovery are these : 1, that the 
 case made by the bill is not such in which a Court of 
 Equity assumes a jurisdiction to compel discovery; 
 2, that the plaintiff has no interest in the subject, or 
 not such an interest as will entitle him to call on defen- 
 dant for the purpose of discovery ; 3, that the defendant 
 has no interest in the subject to entitle the plaintiff to 
 institute a suit against him even for the purpose of dis- 
 covery ; 4, although both plaintiff and defendant may 
 have an interest in the subject, yet that there is not 
 that privity of title between them which gives the 
 plaintiff a right to the discovery required by his bill ; 
 6, that the discovery, if obtained, will not be material ; 
 and, 6, that the situation of the defendant renders it 
 improper for a Court of Equity to compel a discovery.^' 
 
 FORM OF DEMUERERS. 
 
 § 103. Greneral or special. Demurrers, in their 
 forms, are either general or special. They are gene- 
 ral, when no particular cause is assigned, except the 
 usual formulary (to comply with the rules of the 
 
 19 A demurrer for the want of proper parties should designate them, that 
 the plaintiff may be snabled to amend his bill. Barton's Suit in Equity, 
 by Holcombe, 98. 
 
 20 See Mitf. PI. 110, from which work this 101st section is taken, with 
 slight modifications adapted to the practice in this country. 
 
 21 Mitf. PI. 185. 
 
DBMTJREER. 47 
 
 Court) that there is no equity. They are special, 
 when the particular defects or objections are pointed 
 out. The former will be sufficient (although special 
 causes are usually stated,) when the bill is defective in 
 substance. The latter is indispensable where the objec- 
 tion is to the defects of the bill in point of form.^^ 
 By the rules of Courts of Equity in England, which 
 would in this particular rule the practice in United 
 States Circuit Courts, every demurrer is required to 
 contain the causes thereof,^ and they must be set down 
 with reasonable certainty and directness.^* Some of 
 the Virginia State Courts have adopted the like rule. 
 
 § 104. The following is the form of a general de- ' 
 murrer for want of equity : 
 
 In Chancery. — The demurrer of D. D., J. D.,'and 
 S. K., three of the defendants to the bill of com- 
 plaint of S. S. complainant. 
 These defendants by protestation, not confessing or 
 acknowledging all or any of the matters and things in 
 the said complainant's bill contained to be tl-ue in such 
 manner and form as the same are therein and thereby 
 set forth and alleged, do demur to the said bill, and for 
 cause of demurrer shew that the said complainant has 
 not by his said bill made such a case as entitles him in 
 a Court of Equity to any discovery from these defen- 
 dants respectively or any of them, or to any relief 
 against them, as to the matters contained in the said 
 bill or any of such matters, and that any discovery 
 
 22 Story Eq. PI., sec. 455. 
 
 23 Beamos' Ord. in Chan. 77, 78. 
 
 zi Barton's Suit in Equity, by Holcombe, 96. 
 
48 DEFENCE TO SUITS IN EQUITY. 
 
 which can be made by these defendants or any of them 
 touching the matters complained of in the said bill or 
 any of them, cannot be of any avail to the said com- 
 plainant for any of the purposes for which a discovery 
 is sought against these defendants by the said bill, nor 
 entitle the said complainant to any relief in this Court 
 touching any of the matters therein complained of: 
 Wherefore and for divers other good causes of demurrer 
 appearing in the said bill, these defendants do demur 
 thereto, and they pray the judgment of thid honorable 
 Court whether they or either of them shall be com- 
 pelled to make any further or other answer to the said 
 bill, and they humbly pray to be hence dismissed with 
 their reasonable costs in this behalf sustained. 
 
 § 105. The following is the form of a special de- 
 murrer to so much of a bill as sought a discovery of 
 title deeds for want of proper aiEdavit : 
 
 The demurrer of, &c. (as in form in sec. 104.) 
 
 This defendant by protestation, not confessing or ac- 
 knowledging, &c. (as inform in §.104, to word " alleged," 
 inclusive,) as to so much of the said bill as seeks a 
 
 discovery of the marriage settlement of the late 
 
 father and mother of the said complainant, and of the 
 tiile-deeds and writings relating to the messuages, lands 
 and tenements in the said bill mentioned, and that the 
 same may be delivered up to the said complainant, this 
 defendant doth demur in law, and for cause of demurrer 
 sheweth, that no person or persons by the ancient and 
 approved rule of this honorable Court, shall exhibit a 
 bill of complaint in this honorable Court against any 
 other person or persons for a discovery of deeds and 
 writings belonging to such complainant, and upon 
 
DEMURRER. 49 
 
 ■which, if in his possession, he might have remedy at 
 law and pray relief relating thereto, unless such com- 
 plainant or complainants shall at the time of exhibiting 
 such bill make affidavit that he, she or they have not 
 such deeds and writings so sought after in his, her or 
 their custody or power: Wherefore and for that he 
 said complainant hath not made affidavit of not having 
 the deeds or writings in |his custody or power so sought 
 after by the said bill, this defendant doth demur to such 
 part of the bill as aforesaid, and humbly prays the 
 judgment of this Court whether he shall be compelled 
 to make any further or other answer to such part of 
 the said bill as is so demurred unto. 
 
 § 106. Speaking demurrers. — Care must always be 
 taken, in framing a demurrer, that it is made to rely 
 upon the facts stated in the bill ; otherwise it will be 
 what is termed a speaking demurrer, and will be over- 
 ruled.^" In order to constitute a speaking demurrer, 
 however, the fact or averment introduced must be one 
 which is necessary to support the demurrer and is not 
 found in the bill. The introduction of immaterial facts 
 or averments, or of arguments, is improper, but it is 
 mere surplusage, and will not vitiate the demurrer.^^ 
 
 Special rules of Equity Courts. 
 
 § 107. The rules of the United States Supreme Court 
 prescribe other requisites in the form of demurrers pre- 
 sented to the United States Circuit Courts; among 
 others, the signature of counsel.* The Equity Courts 
 
 25 11 Dan. Ch. Pr. 72. 
 
 26 Ibid. 72. 
 
 * See Rii'p' nf Siirvpin" r'ni'vMn Apiicnrlix to this volumn. 
 
50 DEFENCE TO SUITS' IN EQUITY. 
 
 in Virginia Lave generally adopted rules for their own 
 regimen, which govern the practice in these particulars 
 in the several Courts. 
 
 WJien demurrers sustained, when overruled. 
 
 § 108. It would be a departure from the design of 
 this treatise to enter upon this subject in the body of 
 the work. The reader will find, however, in the Ap- 
 pendix, a summary of cases of general application, in 
 which demurrers for relief or for discovery, or for both, 
 have and have not been sustained. 
 
 Demurrers to bills not original. 
 
 § 109. Demurrers have hitherto been noticed with 
 reference only to original bills. As every other kind 
 of bill is a consequence of an original bill, many of the 
 causes of demurrer which will apply to an original bill 
 will also apply to every other kind ; but the peculiar 
 form and object of each kind aiford distinct causes of 
 demurrer to each.^' These will be detailed in the chap- 
 ters treating of such bills and in the Appendix to this 
 volume. 
 
 Procedure on demurrers. 
 
 § 110. The course of procedure on a demurrer depends 
 upon the plaintiff's opinion of its validity. If he thinks 
 that as the bill stands the objection is good, but that he 
 can remove it by restating his case, he may submit to 
 the demurrer atod amend his bill. If he thinks the de- 
 murrer bad, he may set it down for argument.'* If 
 the demurrer is allowed on argument, the suit is at an 
 
 27Mitf. PI. 201. 
 
 28 See ante, sec. 71, p. 29; 
 
DEMURRER. 51 
 
 end unless the demurrer is confined to a part. of the 
 bill, or the Court give permission to the plaintiff to 
 amend.^' If it is overruled, in the English Courts, 
 the defendant must make a fresh defence by answer, 
 unless he obtain permission to avail himself of a plea f 
 in such event, in the United States Circuit Courts and 
 in the Virginia State Courts, it appears there is no al- 
 ternative : he must answer.^' This subject \rill be 
 further treated of in a subsequent chapter. 
 
 II. PLEAS. 
 
 Creneral nature of pleas. 
 
 § 111. A demurrer has been mentioned to be the 
 proper mode of defence to a bill when any objection is 
 apparent upon the bill itself, either from matter con- 
 tained in it or from defect in its frame or in the case 
 made by it. When an objection to the bill is not ap- 
 parent on the bill itself, if the defendant means to take 
 advantage of it, he must shew to the Court the matter 
 which creates the objection, either by answer or by 
 plea, which latter has been described as "a special 
 answer, shewing or relying upon one or more things as 
 a cause why the suit should be either dismissed, delayed 
 or barred." '^ 
 
 § 112. The proper defence for a plea is such as re- 
 duces the cause or some part of it to a single point, 
 and from thence creates a bar to the suit, or to the 
 
 iS See poet, chap. V., and Appendix. 
 
 30 Adams's Equity, 335, 336. 
 
 31 Code of Virginia, chap. 171, see. 32 ; XXXIV Rule Supreme Court 
 U.S. 
 
 32 II Dan. Ch. Pr. 97; Mitf. PI. 218, 219. 
 
52 DEFENCE TO STJITS IN EQUITY. 
 
 part of it to which the bill applies,^ It is not, how- 
 ever, necessary that it should consist of a single fact ; 
 for though a defence offered by way of plea consists 
 of a great variety of circumstances, yet, if they all 
 tend to one point, they will be good.** 
 
 § 113. Affirmative and negative pleas. — In general, 
 a plea relies upon matters not apparent upon the bill ; 
 and in most cases, [though not in all, as will be seen 
 hereafter,] it is a rule, that where a defendant insists 
 upon matter by plea which is apparent upon the face 
 of the bill and might be taken advantage of by 
 demurrer, the plea will not hold.'' Pleas which state 
 matter not apparent upon the bill are termed affir- 
 mative pleas; they usually proceed upon the ground 
 that, admitting the case stated by the bill to be 
 true, the matter suggested by the plea affords a suffi- 
 cient reason why the plaintiff should not have the 
 relief he prays or the discovery he seeks ; and, when 
 put in, the Court, in order to save expense to the par- 
 ties or to protect the defendant from ai discovery which 
 he ought not to make, instantly decides upon the va- 
 lidity of the defence, taking the plea and the bill, so 
 far as it is not contradicted by the plea, to be true.^ 
 There are pleas, however, which, instead of introducing 
 new facts, merely rely upon a denial of the truth of 
 some matter stated in the bill upon which the plaintiff's 
 right depends. Pleas of this sort are termed negative 
 pleas.^ It was at one time a matter of question* how 
 
 33 Mitf. PI. 219. 
 
 34 II. Dan. Ch. Pr. 97. 
 
 35 Ibid. 97. 
 
 36 II. Dan. Ch. Pr. 98, 
 
 37 II. Dan. Ch. Pr. 98. 
 
PLEAS. 63 
 
 far a negative pl«a could be good ; in oiie case Lord 
 Thurlow overruled tte plea on the ground that it -was 
 a negative plea;** but this decision was afterwards 
 doubted by the Judge himself,^' and since that time 
 frequent instances have occurred in which negative 
 pleas have been allowed.^" 
 
 § 114. There is another species of plea which often 
 occurs in the books, and is not, strictly speaking, either 
 a plea affirming new matter or negativing the plaintiiF's 
 title as alleged in the bill, but one which reasserts some 
 fact stated in the bill, and which the bill seeks to im- 
 peach, and denies all the circumstances which the plain- 
 tiff relies upon as the ground upon which he seeks to 
 impeach the fact so set up. Thus, where a bill is 
 brought to impeach a decree, on the ground of fraud 
 used in obtaining it, the decree may be pleaded in bar 
 of the' suit, with averments negativing the charges of 
 fraud." 
 
 § 115. "Whatever the nature of the plea, whether 
 affirmative or negative or of the anomalous character 
 above alluded to, the matter pleaded must reduce the 
 issue between the plaintiff and defendant to a single 
 point. If a plea is double, i. e., tenders more than one 
 defence as the result of the facts stated, it will be 
 bad ;^ but although this is the general rule, there are 
 cases in which it will be relaxed, where great inconve- 
 nience would result to the defendant from denying him 
 
 38 Newman v. Wallis, 2 Bro. C. C. 142. 
 
 39 Hall r. Noyes, 3 Bro. C. C. 488. 
 
 40 II. Dan. Ch. Pr. 98, 99 ; Mitf. PI. 230, 231. 
 
 <i II. Dan. Ch. Pr. 99. 
 
 « II. Dan. Ch. Pr. 102. 2 Ves. Jr 84. 
 
54 ' DEFENCE TO SUITS IN EQUITY. 
 
 this privilege,^ but whenever a defencjant desires to put 
 in a double plea, he must obtain an order for leave to 
 do so." The rule, however, that a defendant cannot 
 plead several matters, must not be understood as pre- 
 cluding a defendant from putting in several pleas to 
 different parts of the same bill ; it merely prohibits his 
 pleading a double defence to the whole bill or to the 
 same portion of it.'" 
 
 § 116. When pUato be supported by answer. — Some- 
 times it is necessary that a plea should be supported 
 by an answer. The occasion of this rule will go very 
 far to explain when such support is necessary and to 
 what extent it is required. It originated thus : — 
 
 It is a well established rule that wherever a bill or 
 part of a bill, the substantive case made by which may 
 be met by a plea, brings forward facts which, if true, 
 would destroy the effect of the plea, these facts must 
 be negatived by proper averments in the plea, otherwise 
 they will be considered as admitted, and the defendant 
 will be thus deprived of his defence.^* A plea, how- 
 ever, cannot be excepted to ; and as it is not necessary 
 that an averment in a plea should do more than gene- 
 rally deny the fact in the bill, the plaintiff might, if no 
 answer were to be required from the defendant in addi- 
 tion to his plea, be deprived of the indefeasible right 
 which he has to examine the defendant upon oath as to 
 all the matters of fact stated in the bill which are ne- 
 cessary to support his case. To obviate this result, the 
 
 43 II. Dan. Ch. Pr. 104. See also YercHld v. Paul, 1 Keen's Ch. Rep. 
 87, 90. 
 « II. Dan. Ch. Pr. 105. 
 45 Ibid. 
 46 II. Dan. Ch. Pr. 112. 
 
PLEAS. 55 
 
 rule lias been adopted that if there is any statement or 
 charge in the bill which affords an equitable circum- 
 stance in favor of the plaintiff's case against the matter 
 pleaded (such as fraud or notice of title,) that statement 
 or charge must be denied by way of answer as well as 
 by averment in the plea.*'' 
 
 §116 a. The thirty-second rule of United States Su- 
 preme Court specifically requires that in every case in 
 the United States Circuit Courts in which the bill spe- 
 cially charges fraud or combination, a plea to such part 
 must be accompanied with an answer fortifying the 
 plea, and explicitly denying the fraud and combination 
 and the facts on which the charge is founded. 
 
 DIFFERENT GROUNDS OF PLEAS. 
 
 § 117. A plea may be either to the relief or to the 
 discovery, or both. If it is a good plea to the relief it 
 will be also good to the discovery ; in the same manner 
 that a demurrer, which is valid as to the relief prayed, 
 is, as has been already mentioned, good to the dis- 
 covery sought by the bill.** 
 
 § 118. Pleas in equity have been differently divided 
 by writers upon the practice in Courts of Chancery. 
 Lord Redesdale, adopting the usual arrangement, says 
 that they have been generally considered as of three 
 sorts : 1, to the jurisdiction of the Court ; 2, to the per- 
 son of the plaintiff or defendant, and 3, in bar of the 
 suit.*^ Mr. Beames, in his " Treatise on the Elements 
 of Pleas in Equity," adds a fourth, viz : pleas to the 
 bill. Mr. Beames' arrangement is adopted by Daniell, 
 
 « II. Dan. Oh. Pr. 112. 
 
 48 Ibid. 135. 49 Mitf. PI. 219. 
 
, 56 DBFBNOB TO SUITS IN EQUITY. 
 
 one of the most accurate and systematic writers upon 
 tte subject.* 
 
 Plem to original hills for relief. 
 
 § 119. The objections to the relief sought by an ori- 
 ginal bill which can be taken advantage of by way of 
 plea are nearly the same as those which may be the sub- 
 ject of demurrer ; but they are rather more numerous, 
 because a demurrer can extend to such only as may ap- 
 pear on the bill itself, whereas a plea proceeds on other 
 matter. The principal are, 1, that the subject matter 
 of the suit is not within the jurisdiction of a Court of 
 Equity ; 2, that some other Court of Equity has the 
 proper jurisdiction ; 3, that the plaintiff is not entitled 
 to sue by reason of some personal disability ; 4, that 
 
 * The following is the arrangement of Beames as cited by Daniell: 
 I, Those pleas which are commonly called " pleas to the jurisdiction/' 
 do not commonly proceed the length of disputing the right of the plaintiff 
 in the subject of the suit, or allege any disability on the pa-rii of the plain- 
 tiff to prosecute the suit, but simply assert that the Court of Chancery is 
 not the proper Court to take cognizance of those rights. II. Fleas to the 
 person do not dispute the validity of the rights which are made the subject 
 of the suit, or deny that the Court has jurisdiction over them ; but they 
 assert that the plaintiff is incapacitated to sue, or that the defendant is not 
 the person who ought to be sued. Ill, Those pleas in equity, also, which 
 Mr. Beames distinguishes as pleas to the bill, do »ot dispute the validity oif 
 the right made the subject of the suit, or contend that the Court has not 
 generally jurisdiction over it, nor do they allege that the plaintiff is under 
 any disability to sue, or that the defendant ought not to be sued; but they 
 assert that the suit, as it appears on the record, is defective to answer the 
 purpose of complete justice, or ought not, for some other reason, to pro- 
 ceed. IV. Pleas in bar may be distinguished from all other pleas, as they 
 admit the jurisdicti(in of the Court, and do not dispute the ability of the 
 plaintiff to sue and the liability of the plaintiff to be sued, and tacitly con- 
 cede that there #,re none of those objections to the suit which constitute the 
 grounds of pleas to the bill; but yet they allege matter, which, if true, de- 
 stroys the claim made by the suit, and, by shewing that the right made 
 the subject of the suit has no existence, or^thatit is vested in the' defen- 
 dant, they put an eternal end to all litigation respecting it. — See Beames 
 on Pleas, 57-65. II Dan. Cli. Pr. 137. 
 
PLEAS. 1 
 
 the plaintiff is not the person he pretends to be or does 
 not sustain the character he assumes ; 6, that the plain- 
 tiff has no interest in the subject or no right to insti- 
 tute a suit concerning it ; 6, that he has no right to 
 call on the defendant concerning it ; 7, that the defen- 
 dant is not the person he is alleged to be, or does not 
 sustain the character he is alleged to bear ; 8, that the 
 defendant has not that interest in the subject -vyhich can 
 make him liable to the demands of the plaintiff ; 9, that 
 for some ];pason founded on the substance of the case, 
 the plaintiff is not entitled to the relief he prays ; 10, 
 that the defendant has an equal claim to the protection 
 of a Court of Equity to defend his possession, as the 
 plaintiff has to the assistance of the Court to assert his 
 right ;^ 11, the deficiency of the bill to answer the pur- 
 poses of complete justice : this may be shewn by plea ; 
 12, the impropriety of unnecessarily multiplying suits : 
 this may be also the subject of a plea, but the incon- 
 venience arising from confounding distinct matters in 
 the same bill, as it must be apparent in the bill itself, 
 unless very artfully framed, can in general only be al- 
 leged by demurrer.^' 
 
 Pleas to original bills for discovery. 
 
 § 119 a. The objections noted in section 119 as proper 
 grounds of pleas to original bills for relief, likewise ex- 
 tend to discovery wherever it is merely sought for the 
 purpose of obtaining relief and can have no other 
 end.°^ 1 There are objections, however, which are proper 
 grounds of pleas to discovery only. These are nearly 
 the same as those which have been already mentioned 
 
 50 Mitf. PI. 220. 5] Ibid. 221. ' ^ Ibid. 281. 
 
58 DEFENCE TO SUITS IN EQUITY. 
 
 as causes of demurrer to discovery ; they may be, 1, 
 that the plaintiff's case is not such as entitles a Court 
 of Equity to assume a jurisdiction to compel a discovery 
 in his favor ; 2, that the plaintiff has no interest in the 
 subject, or not such an interest as entitles him to call 
 upon the defendant for a discovery ; 3, that the defen- 
 dant has no interest in the subject to entitle the plaintiff 
 to institute a suit against him even for the purpose of 
 discovery only ; ; 4, that the situation of the defendant 
 renders it improper for a Court of Equity to. compel a 
 discovery.'^ 
 
 EOKM OP PLEAS. 
 
 § 120. A plea is preceded by a title in the following 
 form : " The flea of A. B. a defendant to the bill of 
 complaint exhibited against him by X. Y." &c. ; or 
 " The joint and severaP* plea of A. B. and C. _Z>. de- 
 fendants to the bill of complaint (as before)." When 
 a plea is accompanied by an answer it is entitled thus : 
 " The plea and answer," or, " The joint plea and an- 
 swer," or, " The joint and several plea and answer," 
 according to the circumstances.^^ 
 
 § 121. A plea, like a demurrer, is introduced by a 
 protestation against the confession of the truth of any 
 matter contained in the bill.^" 
 
 § 122. The extent of the plea, that is, whether it is 
 intended to [cover the whole bill or a part of it only, 
 and what part in particular, is usually stated in the 
 
 53 Mitf. PI. 282. 
 
 61 When it is the plea of man and wife, the words "and several" should 
 be omitted. 
 
 03 II. Dan. Oh. Pr. 205. 
 66 Ibid. 206. 
 
PLEAS. 59 
 
 next place, and this, as before observed, must be 
 clearly and distinctly shewn."'' 
 
 § 123. In the English Courts, where the plea is to 
 the whole of the relief sought by the bill, but it is ne- 
 cessary that the defendant should support his plea by 
 an answer as to the facts stated, which may avoid the 
 bar, the plea must not extend to the whole bill, but 
 should be in the form of a plea to all the relief and all 
 the discovery sought hy the hill, except certain parts of 
 the discovery, (which are to be answered. )°^ This par- 
 ticularity is not required in pleas filed in the Circuit 
 Courts of the United States"' or in the Virginia State 
 Courts. 
 
 § 124. The matter relied upon as an objection to the 
 suit or bill generally follows, accompanied by such aver- 
 ments as are necessary to support it ; and it is to be 
 noticed that where a plea is of matter which shews an 
 imperfection in the frame of the suit, it should point 
 out in what that imperfection consists.™ 
 
 § 125. When a plea is accompanied by an answer, the 
 answer should follow the conclusion of the plea.^' 
 
 § 126. Pleas should be signed by counsel. It is not 
 necessary that they be signed by the parties, either in 
 the United States Circuit Courts or in Virginia State 
 Courts. 
 
 67 II. Dan. Ch. Pr. 206. 
 
 S8 Ibid. 
 
 69 See XXXVI. and XXXVII. Rules of Supreme Court U. S. 
 
 60 II. Dan. Ch. Pr. 207. It is hardly necessary to remind the reader 
 that the plea must be founded on matter not apparent on the face of the 
 bill, that the plea must reduce the case to a single point; except where 
 leave has been obtained to plead double, and that it must cover the "whole 
 case, or that part of it which it afFocts to cover. 
 
 61 11. Dan. Ch. Pr. 210. 
 
60 DEFENCE TO SUITS IN EQUITY. 
 
 Special rules of Equity Courts. 
 
 § 127. The rules of the Supreme Court of the United 
 States require that in the United States Circuit Courts 
 other requisites shall be complied with.^ The Equity 
 Courts of Virginia have generally adopted rules for 
 their own regimen, which govern the practice in these 
 particulars in the several Courts. 
 
 § 128. The following is the form of a plea of a former 
 suit depending for the same matters, in bar to a bill for 
 account : 
 
 The joint and several plea of R. H. and G. H. defen- 
 dants to the bill of complaint of R. S. and P. D., 
 executors of the last will and testament of J. P. 
 deceased, on behalf of themselves and all other the 
 creditors of G. S. deceased, complainants. 
 These defendants by protestation, not confessing or 
 acknowledging all or any of the matters and things in 
 the said complainants' said bill mentioned to be true in 
 such manner and form as the same are therein and 
 thereby set forth and alleged, do plead in bar to the 
 said bill, and for cause of plea severally say that the 
 said complainants, together with R. C. since deceased, 
 did in the year 1842 exhibit in this honorable Court 
 their bill of complaint, which was afterwards amended 
 against J. S. and these defendants and G. S. now de- 
 ceased, and N. N. now deceased, thereby praying, 
 amongst other things, that, &c. {stating the prayer,'\ 
 And these defendants for plea severally further say, 
 that they put in their joint and separate answer to the 
 said amended bill, and which suit is now depending in 
 
 n Pee XXXI. Kulo Supreme Court U. S. 
 
, PLEAS. 61 
 
 this honorable Court; and these defendants do aver 
 that the said bill now exhibited against these defendants 
 by the said complainants is for the same matters as the 
 amended bill before exhibited by the said complainants 
 and the said R. C. deceased, against these defendants 
 and the said J. S. and the said Gr. S., J. C. and N. N., 
 now respectively deceased, to which these defendants 
 have appeared and answered, and which suit is still de- 
 pending and undetermined ; and therefore' these defen- 
 dants do plead the said former bill and answer in bar to 
 the said com'plainant's now bill, and humbly pray the 
 judgment of this honorable Court whether they^ shall be 
 compelled to make any further or other answe/ thereto. 
 And these defendants pray to be hence dismissed with 
 their reasonable costs and charges in this behalf most 
 wrongfully sustained. 
 
 § 129. When pleas sustained and when overruled. — 
 As in the case of demurrers, so here, it would be a de- 
 parture from the design of this volume to enter upon 
 this subject in the body of the work. The reader will 
 find, however, in the Appendix, a summary of decisions 
 of general application, in which pleas to bills for relief 
 or for discovery, or for both, have and have not been 
 sustained. See also a subsequent chapter, treating of 
 the filing of demurrers, pleas, &c. 
 
 Pleas to bills not original. 
 
 § 130. Pleas have hitherto been considered with re- 
 ference only to original bills ; but the same grounds of 
 plea will hold in many cases to the several other kinds 
 of bills, according to their respective natures,*^ and 
 
 63 Mitf. PI. 289. 
 
 6 
 
62 DEFENCE TO SUITS IN EQUITY. 
 
 some of them admit of a peculiar defence which may be 
 urged by way of plea.** These will be treated of in the 
 chapters specially devoted to such bills. See also Ap- 
 pendix to this volume. 
 
 Procedure on pleas. 
 
 §131. The Court may allow a plea, or order it to 
 stand for answer, or save the party defendant the bene- 
 fit of it till a hearing, or overrule it. In some cases, 
 the Court permits the party filing a plea to amend it or 
 to plead de novo. See Appendix to this volume ; also, 
 a subsequent chapter treating of the filing of demurrers, 
 pleas, &o. 
 
 III. ANSWERS. 
 G-eneral nature of answers. 
 
 § 132. If a defendant cannot protect himself, either 
 by demurrer or plea, from answering the plaintifi"'s bill, 
 and does not disclaim all right and interest in the sub- 
 ject of the suit, he must put in an answer, either to the 
 whole bill, or to such parts of it as are not covered by 
 his demurrer or plea.*' 
 
 §133. The answer, besides furnishing the result of 
 an examination of the defendant upon the allegations 
 of the bill, has generally another duty to perform : that 
 of stating to the Court the nature of the defence upon 
 which the defendant means to rely,** in this respect ful- 
 
 M Mitf. PI. 289. 
 
 65 II. Dan. Ch. Pr. 238. 
 
 66 It is not true, however, that every defence may be made hy way of 
 answer. As we shall see hereafter^ sometimes it is necessary for the 
 protectioD of a defendant that he file a cross bill. 
 
ANSWERS. 
 
 63 
 
 filling the duties of a plea or a series of pleas, either 
 denying facts upon which the plaintiff's equity as stated 
 in the bill arises, or confessing such facts, and avoiding 
 them by the introduction of some new matter from 
 ■which contrary inferences may be drawn.^' 
 
 §134. It is of great importance to the pleader, in 
 preparing an answer, to bear in mind that besides an- 
 swering the plaintiff's case as made by the bill, he has 
 to state to the Court upon the answer all the circum- 
 stances of which the defendant intends to avail himself 
 by way of defence ; it being a well established rule 
 that a defendant is bound to apprise a plaintiff by his 
 answer of the nature of the case he intends to set up, 
 and that he cannot avail himself of any matter of de- 
 fence which is not stated in his answer, even though it 
 should appear in his evidence.^ 
 
 §135. It wUl be well, also, to remember that the 
 plaintiff has a right, even when the facts are uncontro- 
 verted, to have notice upon the record, in a precise and 
 unambiguous manner, of the nature of the conclusions 
 to be drawn from them. This, however, does not ex- 
 tend to conclusions in law. It would, as we have seen, 
 be contrary to the principles of correct pleading to set 
 out these. Conclusions of fact are alone intended ; 
 and it was decided in a case cited by DanieU, that if a 
 defendant state upon his answer certain facts as evi- 
 dence of a particular case which he represents to be the 
 consequence of those facts, and upon which he rests his 
 defence, he will not be permitted afterwards to make 
 use of the same facts for the purpose of establishing a 
 different defence from that to which by his answer he 
 
 « II. Dan. Ch. Pr. 239. «s Ibid. 
 
64 DEFENCE TO SUITS IN EQUITY. 
 
 has drawn the plaintiff's attention;*' but a defendant 
 may, by his answer, set up any number of defences as 
 the consequence of the same state of facts.'" He can- 
 not, however, insist upon two defences which are incon- 
 sistent with each other, or are the consequences of 
 inconsistent facts." 
 
 § 136. While it is necessary in an answer to use such 
 a degree of certainty as will inform the plaintiff of the 
 nature of the case to be made against him, it is not 
 requisite that the same degree of accuracy should be 
 observed in an answer as is required in a biU.'"' 
 
 § 137. If the defence which can be made to a bill 
 consists of a variety of circumstances, so that it is not 
 proper to be offered by way of plea, or if it is doubtful 
 whether a plea will hold, the defendant may set forth 
 the whole by way of answer, and pray the same benefit 
 of so much as goes in bar as if it had been pleaded to 
 the bill. So, also, if the defendant can offer a matter 
 of plea which would be a complete bar, but has no 
 reason to protect himself from any discovery sought by 
 the bill, and can offer circumstances which he conceives 
 to be favorable to his case, and which he could not offer 
 together with a plea, he may set forth the whole matter 
 in the same manner, and, at the hearing, any such 
 benefit may be relied upon.''' 
 
 69 See II. Dan. Cli. Pr. 240. 7o Ibid. 241. 
 
 71 11. Dan. Ch. Pr. 241. /«««« College ts. Gihls, 1 Tonnge & Coll. 145 ; 
 Leech vs. Bailey, 6 Price 504. From these cases, says Daniell, it may be 
 collected that where a defendant sets up by his answer two inconsistent 
 defences, the result will be to deprive him of the benefit of either, and to 
 entitle the plaintiff to a decree. But see Nagle v. Edwards, 3 Anst. 702. 
 
 72 II. Dan. Ch. Pr. 244. 
 
 73 Ibid. 244, 245 ; but not until the hearing of the cause. Ibid. 
 
ANSWERS. 65 
 
 Matter of answer. 
 
 § 138. The defendant is required, upon his corporal 
 oath, to make a full, true, direct, perfect and suflScient 
 answer, according' to the best of his knowledge, recol- 
 lection, information and belief, to all and singular the 
 several matters and things contained in the bill.'* 
 
 § 139. The answer of the defendant should, therefore, 
 as a general rule, be fully responsive as to all matters 
 and statements in the bill against which he does not 
 protect himself by plea or demurrer ;''° but there are 
 some exceptions to this rule. 
 
 § 140. Thus, a defendant is not bound to answer to 
 matters which are purely scandalous, or impertinent, 
 or immaterial, or irrelevant ;'* he is not bound to answer 
 to anything which may subject him to any penalty, for- 
 feiture or punishment ;'' he is not bound to answer 
 what would involve a breach of professional confi- 
 dence ;''* he is not bound to discover the facts respecting 
 his own title, but merely those which respect the title 
 of the plaintiff.^' 
 
 § 141. From what has been said, it is apparent that a 
 defendant who submits to answer must answer fully : he 
 must answer the whole of the statements and charges 
 in the bill,^ and all the interrogatories founded upon 
 
 w This general rule ia limited in the United States Circuit Courts to 
 such interrogatories as the defendant is specially called upon to answer. 
 XL. Rule Supreme Court U. S. 
 
 75 IL Dan. Ch. Pr. 238, et aeq. Story's Eq. PI. s. 846. 
 
 76 Story's Eq. PI. s. 846. 77 Ibid. 78 Ibid. 79 Ibid. 
 80 But see XL, Rule Supreme Court U. S. for practice in this respect in 
 
 the United States Circuit Courts. 
 
p6 DEFENCE TO SUITS IN EQUITY. 
 
 them, at least so far as they are necessary to enable 
 the plaintiff to have a complete decree against him.*^ 
 
 § 142. When it is said that a defendant -who answers 
 should answer fully to all the matters in the bill, it 
 must be understood only as to matters which are well 
 pleaded, that is, to the facts stated and charged. To 
 matters of law, or inferences of law drawn from the 
 facts, he need not answer.^^ 
 
 § 143. In general, if a fact is charged which is in the 
 defendant's own knowledge, as if done by himself, he 
 must answer positively, and not to his remembrance 
 or belief only.^ 
 
 § 144. A defendant cannot, by merely saying " that 
 a matter may be true for any thing he knows to the 
 contrary," avoid stating what is his recollection, infor- 
 mation, or belief with reference to it, or stating that he 
 has no recollection or information, or that he cannot 
 form any belief at all concerning it, either in these 
 words or in equivalent expressions; and where defen- 
 dants have in their power the means of acquiring the 
 information necessary to give the discovery called for, 
 they are bound to make use of such means, whatever 
 pains or trouble it may cost them." 
 
 § 145. To so much of the bill as it is necessary and 
 material ^for the defendant to answer, he must speak 
 directly and without evasion; and must not merely 
 answer the several charges literally, but he must con- 
 fess or traverse the substance of each charge.^ 
 
 ei II. Dan. Ch. Pr. 247. 84 II. Dan. Ch. Pr. 257. 
 
 82 Ibid. 256. 85 Ibid. 268. 
 
 83 Ibid, 266. 
 
ANSWERS. 67 
 
 § 146. As in other pleadings in equity, so in the case 
 of answers ; they should not contain impertinent, irrele- 
 vant or scandalous matter.^' 
 
 Form of answers. 
 
 § 147. Two or more persons may join in the same 
 answer, and where their interests are the same, and 
 they appear by the same counsel, they ought to do so, 
 unless some good reason exists for their answering 
 separately.^ Where two 'defendants answer jointly, 
 and one speaks positively for himself, the other may, 
 in cases where he is not charged with any thing upon 
 his own knowledge, say that he perused the answer and 
 believes it to be true; but it is otherwise where the 
 defendants answer separately.^ 
 
 § 148. An answer is headed by a title : " The answer 
 of A. B. the defendant, to the bill of complaint of 0. D. 
 complainant." If two or more defendants join in the 
 same answer, it is entitled, "the joint and several 
 answer," &c., unless it be the answer of a man and 
 wife, in which case it is called the joint answer. The 
 answer of an infant, or other person answering by 
 guardian, or of idiot or lunatic, or convict answering 
 
 S6 II. Dan. Ch. Fr. 295. Daniell mentions a case in which the hill 
 having called upon the defendant to set forth an account of all and every 
 the quantities of ore, metals, Ac, dug in particular mines, and the full 
 value thereof, and the costs of working the mines and the clear profits 
 therehy, the defendant put in a schedule with his answer, comprising 3431 
 folios, wherein were set forth all the particular items of every tradesman's 
 bill connected with the mines ! The Court held the schedule to be imper- 
 tinent. II. Dan. Ch. Pr. 263. See a case of scandal and impertinence in 
 answers in the Appendix to this volume. 
 
 87 See LXII. Rule Supreme Court U. S. 
 
 88 ll. Dan. Ch. Pr. 266. 
 
'68 DEFENCE TO SUITS IN EQUITY. 
 
 by his committee, is so entitled," and vrlien a defendant 
 is sued in two characters it ought to appear that he 
 answers in both.** 
 
 § 149. "Where an answer has been prepared for five 
 defendants, it cannot be received as the answer of two 
 only, nor can it be received as the answer of six.'^ 
 
 § 150. An answer usually begins by a reservation to 
 the defendant of all advantage which may be taken by 
 exception to the bill; a form which is conjectured to 
 have been intended to prevent a conclusion that the de- 
 fendant, having submitted to answer the bill, admitted 
 every thing which by his answer he did not expressly 
 controvert, especially such matter as he might have 
 objected to by demurrer or plea.'^ 
 
 § 150 a. Next after this reservation follow the answers 
 to the several matters contained in the bill, togetlier 
 with such additional matter as may be necessary for 
 the defendant to show to the Court, either to qualify or 
 add to the case made by the bill, or to state a new case 
 on his own behalf.** 
 
 §151. The answer usually contains a denial of the 
 combination charged in the bUl, and it is in the English 
 Courts the universal practice to add, by way of conclu- 
 sion, a general traverse or denial of all the matters in 
 the bill.** 
 
 § 152. In strict practice, an answer should be signed 
 by the counsel and the defendant or defendants putting 
 it in; but this rule is rarely observed, either in the 
 
 89 II. Dan. Ch. Pr. 266. 
 
 90 But see Kinney's ex'ora, &c. T. Harvey, <&e., 2 Leigh, 70. 
 
 91 II. Dan. Ch. Pr. 267. 92 Ibid. 267. ss Ibid. 268. 94 Ibid. 268. 
 
ANSWEKS. 69 
 
 Virginia State Courts, or in the United States Circuit 
 Courts. 
 
 § 153. All answers, excepting those of corporations 
 aggregate, which are put in under their common seal, 
 must be upon the oath of the parties putting them in, 
 unless they he such as by the law are allowed to make 
 a solemn affirmation in lieu of an oath.^' Upon consent 
 of the plaintiff, however, an answer may be put in with- 
 out oath or affirmation.'^ 
 
 Amending answers. 
 §154. After an answer has been put in upon oath, 
 the Court will not, for obvious reasons, readily suffer 
 any alterations to be made in it.'^ The application to 
 amend will be narrowly and closely inspected, and a 
 just and necessary case must be clearly made out,'' but 
 no precise and absolute rule exists on the subject; the 
 question is always addressed to the discretion of the 
 Court in the particular instance.*' 
 
 Special rules of Equity Courts. 
 
 § 155. The Rides of the Supreme Court of the United 
 States, found in the Appendix, should be observed in 
 the preparation of answers in the Circuit Courts of the 
 United States, and the several Equity Courts of Vir- 
 
 95 II. Dan. Ch. Pr. 290. See form of oath or affirmation in Appendix. 
 
 96 The Court will not permit the answer of a defendant represented to 
 be in a state of ineapaeity to be receired without oath and signature, 
 though a mere trustee and without interest ; the usual course in such case 
 being for the Court to appoint a guardian, by whom the defendant may 
 answer. Wilson v. Grace, 14 Ves. 172; II. Dan. Ch. Pr. 271. 
 
 97 II. Dan Ch. Pr. 337. 
 
 98 II. Sob. Pr. 316; and oases there cited. 
 
 99 Wells T. Wood, 10 Ves. 401. See poet, chapter on "Amendments of 
 pleadings, Ac." 
 
70 DEFENCE TO SUITS IN EQUITY. 
 
 ginia have generally adopted rules in regard to answers, 
 ■which govern the practice in this particular in these 
 Courts, 
 
 § 156. There will be found in the Appendix the 
 forms of answers in extenso, as filed in the English 
 Courts, in the Circuit Courts of the United States, and 
 in the Virginia State Courts. 
 
 Procedure on answers. 
 
 § 157. If, when the answer is filed, the plaintiff finds 
 that it contains scandalous or impertinent matter, or 
 that it does not sufficiently answer the allegations and 
 charges in the bill, he should file exceptions to it.™ 
 
 §158. The plaintiff, if he is not inclined to file 
 exceptions, may reply.' The special replication has 
 become obsolete in England, and is not in use here. 
 The general replication is in force yet, and, as it 
 brings the parties fully to issue, we do not see that the 
 rejoinder is of any utility. The rejoinder is not in 
 practice in the United States Circuit Courts or in the 
 Virginia State Courts. If the plaintiff file no repli- 
 cation (not having excepted) to the answer, he admits 
 thereby the truth of its statements. 
 
 IV. DISCLAIMEKS. 
 
 § 159. A disclaimer is where a defendant, upon oath 
 or solemn affirmation, denies that he has or claims any 
 right to the thing in demand by the plaintiff's bill, and 
 disclaims, i, e., renounces, all claim thereto."* 
 
 loo II. Dan. Ch. Pr. 295. In the Appendix the reader will find a sum- 
 mary of cases in which tha sufficiency of answers has heen tested by the 
 Courts : in some instances sustaining them, in others requiring new 
 answers: 
 
 101 II. Dan. Ch. Pr. 233. 
 
DISCLAIMERS. 71 
 
 160. A disclaimer is distinct in substance from an 
 answer, although sometimes confounded with it ; but it 
 can seldom be putin without an answer; for if the de- 
 fendant-has been made a party by mistake, having had 
 an interest which he may have parted with, the plaintiff 
 may require an answer sufficient to ascertain whether 
 that is the fact or not ;™ and it may be laid down as a 
 general rule, that in no case can a party get rid of his 
 liability to answer a bill by his mere disclaimer, if his 
 answer may properly, under all the circumstances, be 
 required.^"^ 
 
 § 161. Though a disclaimer is, in substance, distinct 
 from an answer, yet it is in point of form an answer,*" 
 and is preceded and concluded by the same formal 
 words and is put in and filed in the same. way,"' and 
 the subsequent proceedings in reference thereto by the 
 plaintiff may be of the same kind as if it were an an- 
 swer ;*"* with this exception, that if it be a disclaimer to 
 the whole bill, the plaintiff ought not to reply to it.*'" 
 
 § 162. After a disclaimer to the whole bill has been 
 filed, the plaintiff may either dismiss the bill as against 
 the party, or amend it.*"* 
 
 § 163. This form of equity defence is rarely used in 
 the practice in this country, either in the United States 
 Courts or in the State Courts. 
 
 § 164. In the ninety-sixth section it was stated that 
 the several modes of defence herein-before treated of, 
 
 102 II. Dan. Ch. Pr. 233. Story's Eq. PI. s. 838. "<» lb. s. "838a. 
 
 104 Forms of disclaimers may be found in the Appendix to this yolume. 
 
 105 II. Dan. Ch. Pr. 234. «6 Ibid. 235. w Ibid. m Ibid. 
 
72 DEFENCE TO SUITS IN EQUITY. 
 
 or any of them, may be used togethei*, if applied to se- 
 parate and distinct parts of the bill. 
 
 § 165. The rule that two or more of these defences 
 may not be united, if applicable to the same part of the 
 bill, prevails in the United States Circuit Courts and 
 in most of the State Courts of the Union. In a case 
 in the Supreme Court of Appeals in Virginia, however, 
 it was decided that a defendant might demur and 
 answer to the same matter in the bill. See Bassett's 
 adm'or, ^c. v. Cunningham's adm'or, 7 Leigh, 402. 
 And if the principle of that case be adopted, and 
 carried out to its legitimate extent, a defendant in the 
 Virginia State Courts may plead and demur, or plead 
 and answer, to the same matter of a bill at the same 
 time. It is proper to state, that this decision was 
 founded upon a special statute of Virginia, declaring 
 that in all Actions at law the defendant may plead as 
 many several matters, whether of law or fact, as he 
 shall think necessary for his defence. The Court 
 thought that this rule ought, by analogy, to be ex- 
 tended to the proceedings in Courts of Equity. Judge 
 Tucker dissented from this opinion. 
 
 § 166. Beside these several modes of defence treated 
 of in this chapter, it sometimes becomes necessary that 
 a party defendant, fully to present his case before the 
 Court, should file a cross bill. In a subsequent, chapter 
 cross bills will, be treated of. 
 
SlLINa OF DBMUREERSj PLEAS, STIC. 73 
 
 CHAPTER V. 
 
 Of the filing of demurrers, pleas, answers, and dis- 
 claimers, and of the course of the plaintiff when 
 such defences are made. 
 
 § 167. The subjects of this chapter have been already 
 treated of in previous parts of this work. It is deemed 
 proper, however, to devote further sections to their 
 more particular consideration. 
 
 § 168. Either of the several defences set forth in the 
 fourth chapter may^ under the limitations there pointed 
 out, be made in the Yirginia State Courts at slny stage 
 of the suit before final decree,' and, in the United States 
 Circuit Courts, at any time before the bill is taken for 
 confessed, or, afterwards, with the leave of Court, and, 
 as we have stated before, all or any of the several 
 modes of defence may be joined, provided each relates 
 to a separate and distinct part of the bill f but there 
 are cases in which the taking of one of these modes of 
 defence precludes the party from subsequently taking 
 another. 
 
 § 169. Thus, after a demurrer to the whole bill has 
 been overruled, the defendant is not at liberty to put 
 
 1 Code of Ta., chap. 171, see. 34. The rule is different in the English 
 eOurts. II. Dan. Ch. Pr. 78, et aec[. 
 
 2 See ante, see. 165, where it is stated that in the Virginia State Courts, 
 _ according to a decision of Court of Appeals, a party defendant may hoth 
 
 answer and demur to the same matter in the bill. 
 
 7 
 
74 SUIT I* EQUITY. 
 
 in a plea to the -v^hole bill, or to any p^rt of it, of to 
 put in a demurrer of a less extended nature, without 
 first obtaining the leave of the Court,^ though he may 
 then put in his ariswer -without such leave. 
 
 § 170. So, too, after answering the bill, though gen- 
 erally speaking the party may insist at the hearing 
 upon any matter of peremptory or permanent defence 
 which he might have relied upon by plea or demurrer, 
 yet he will not be allowed to file a plea or demurrer. 
 
 § 171. In the .United States Circuit Courts the prac- 
 tice in regard to the filing of demurrers or pleas is 
 much stricter than in the Virginia State Courts. The 
 rules governing the practice in those Courts provide 
 that no demurrer or plea shall be allowed to be filed, 
 unless upon a certificate of counsel that in his opinion 
 it is well founded in point of law, and supported 
 by the affidavit of the defendant that it is not inter- 
 posed for delay, and, if a plea, that it is true in point 
 of fact.* 
 
 § 172. The rule has been generally adopted in the 
 Virginia State Courts, that all pleadings should be 
 signed by the party filing them and by his counsel. 
 
 How demurrers, pleas, ^c. filed. 
 
 § 173. Demurrers, general or special, in equity, are 
 committed to writing, as well as pleas, answers, or dis- 
 claimers, both in the Virginia State Courts and in the 
 United States Circuit Courts.' 
 
 3 II. Dan. Ch. Pr. 94, 5. See Code of Va. chap. 171, sec. 82. 
 
 4 XXXI. Kule Supreme Court U. S. 
 
 e See ante, see. 104, 105, and chap. lY. paaaim. 
 
FILING OF DEMURRERS, PLEAS, ETC. 75 
 
 § 174. These several modes of defence may be made 
 at the rules or in Court, in term time, both in the 
 United States Circuit Courts and in the Virginia State 
 Courts. 
 
 § 175. When a demurrer is filed, if the plaintiff does 
 not think proper to amend his bill, he should set the 
 demurrer down for argument." When a plea is filed, 
 the plaintiff may take issue upon the plea, (i. e., he may 
 deny the facts stated in it,) or he may set ' it down for 
 argument.' When an answer is filed, the plaintiff must 
 either file a general replication, or except to the answer 
 as insufiieient, [or, in the Virginia State Courts, may 
 set the cause for hearing on the answer alone, without 
 replication.^ 
 
 § 176. What done if plaintiff fail to set demurrer or 
 plea down for argument. — In the United States Circuit 
 Courts, if the plaintiff do not reply to any plea or set 
 down any plea or demurrer for argument on the rule 
 day when the same is filed, or on the next succeeding 
 rule day, he will be deemed to admit the truth and 
 sufiiciency thereof, and his bill will be dismissed as of 
 course, unless a Judge of the Court shall allow him 
 further time for the purpose.® In the Code of 1819, 
 there was a similar rule adopted for the Virginia State 
 Courts. It ran thus: "If the complainant shall not 
 proceed to reply to or set for hearing any demurrer 
 or plea before the second Court after filing the sam9, 
 
 6 Code of Va., chap. 171, see. 32. XXXIIL Rule Supreme Court U. S. 
 
 ' Code of Virginia, chap. 171, sec 32, 33. XXXIII. Rule Supreme 
 Court U. S. 
 
 8 Code of Virginia, chap. 171, sec. 48. 
 
 9 XXXVIII. Rule Supremo Court U. S. 
 
76 SUIT IN EQUITY. 
 
 the bill may be dismissed of course with costs."" In 
 the Code of Virginia, of 1849, this provision has been 
 omitted. 
 
 § 177. When demurrer or plea set down for argument 
 and overruled. — In the United States Circuit Courts, if 
 any demurrer or plea, on the hearing, is overruled, be- 
 sides paying the plaintiff his costs in the cause up to 
 that period, (unless the Court is satisfied that the defen- 
 dant had good ground in point of law or fact to inter- 
 pose the same, and it was not interposed vexatiously or 
 for delay,) the defdbdant will be assigned to answer the 
 bill, or so much thereof as is covered by the plea or 
 demurrer, the next succeeding rule day, or at such 
 other period, as, consistently with justice and -the rights 
 of the defendants, it can, in the judgment of the Court, 
 be reasonably done ; in default whereof, the bill will be 
 taken for confessed, and the matter proceeded in and 
 decreed accordingly;" and, in the Virginia State 
 Courts, if a demurrer or plea be overruled, uo other 
 plea or demurrer will afterwards be receivedj but there 
 will be a rule upon the defendant to answer the bill.'^ 
 
 § 178. 'When demurrer or flea sustained. — If, upon 
 tte hearing, in the United States Circuit Courts, any 
 demurrer or plea shall be allowed, the defendant will be 
 entitled to costs ; but the Court may, in its discretion, 
 upon motion of the plaintiff, allow him to amend his bill 
 upon such terms as it shall deem reasonable.'^ The 
 Virginia statutes have made no express provision for 
 such a case in the Virginia State Courts. It is pre- 
 
 • 10 IK. C. 1819, p. 215, ? 99. ' 
 
 11 XXXIV. Rule Supreme Court U. S. 
 
 12 Code of Va. chap. 171, sec. 32. 
 
 13 XXXV. Rule Supreme Court U. S. 
 
FILING OF DEMUURISRS, PLEAS, ETC. 1^ 
 
 sumed, however, that the defendant would have his 
 costs, and the plaintiff, upon a proper case shewn, 
 would be allowed to amend the bill. 
 
 After a plea has, upon argument, been adjudged 
 good, a party plaintiff will be allowed to take issue 
 on it." 
 
 '§179. When issue taken upon a pZea.— The Virginia 
 statute provides that a plaintiff in equity in the Virginia 
 State Courts may take issue upon a plea, and have such 
 issue tried by a jury; and,. if t^e plea be found false, 
 he shall have the same advantages as if it had been so 
 founrd by verdict at law ;" and by the 32d rule of the 
 United States Supreme Court, it is ordered that the 
 plaintiff may take issue on the plea, and if, upon an 
 issue, the facts stated in the plea be determined for the 
 defendant, they shall avail him as far as in law and 
 equity they ought tO avail him. 
 
 §180. As stated in 177th section, after a plea has 
 upon argument been adjudged good, a party plaintiff 
 will be allowed to take issue on it; and it seems that if, 
 after an issue, the facts relied on by the plea are 
 proved, and the plea is to the whole [matter of the] 
 bill, a dismission of the bill at the hearing is a 
 matter of course." 
 
 § 181. Replicatioris to answers.— ^^edisX replications 
 to answers are now out of use both in England and this 
 country •^'^ their place is supplied by an amendment of 
 
 14 Mitf. PI. 301. 
 
 15 Code of Va. chap. 171, sec. 33. 
 
 16 Hiighes T. Blahe; 1 Mason 515, 6 Wheat. 472; Dmm, &c. v. M'llicliael, 
 2 Paige 345 ; Holmea, &c. v. liemsen, &c., 7 John. Ch. Rop 290. 
 
 17 The office of the special replication was to reply specially on the part 
 of the plaintiff to any new matter introduced in the defendant's plea or 
 answer. II. Dan. Ch. Pr. 387. 
 
fS SUIT IN EQUITY. 
 
 the bili, when necessary.'* General replications are 
 alone filed. The form of a general replication, when 
 reduced to writing, is as follows:* 
 
 The replication of A. B. complainant to the answer 
 of CD. defendant. 
 This repliant, saving and reserving unto himself all 
 and all manner of advantage of exception to the ;mani- 
 fold insufficiencies of the said answer, for replication 
 thereunto saith, that he will aver and prove his said bill 
 to be true, certain and sufficient in the law to be an- 
 swered unto, and that the said answer of the said de- 
 fendant is uncertain, untrue and insufficient to be 
 replied unto by this repliant ; Without this, that any 
 other matter or thing whatsoever in the said answer 
 .contained material or effectual in the law to be replied 
 unto, confessed and avoided, traversed or denied, is 
 true ; All which matters and things this repliant is and 
 will be ready to aver and prove as this honorable Court 
 shall direct, and humbly prays as in and by his said bill 
 he hath already prayed. 
 
 § 182. When plaintiff not compelled to file replica- 
 tion, and effect of not filing it. — A plaintiff, in the Vir- 
 ginia State Courts, may have the cause set for hearing 
 on the defendant's answer alone ;'" and it seems that if 
 this be done, the answer will be taken as true in every 
 
 18 XLV. Rule Supreme Court U. S. 
 
 « Usually, in the Virginia State Courts, general rcplioationa are put in 
 informally with the clerk ore tenus; they are rarely, if ever, reduced to 
 writing; this, too, is the practice in the United States Circuit Court held 
 in Richmond city, Virginia. Whether this is a sufficient conformity to the 
 rules of the Supreme Court of the United States has not yet been decided 
 by that Court. 
 
 ■!> See Code of Va. chap. 171, sec. 4S. 
 
FILING OF DEMURRERS, PLEAS, ETC. 79 
 
 part of it.^" In the United States Circuit Courts, the 
 plaintiff must either file exceptions or a general replica- 
 tion. He is allowed until the rule day next succeeding 
 the filing of the answer to file the general replication 
 or exceptions, and if (not having filed exceptions) he 
 omit or refuse to file a general replication within that 
 time, the defendant will be entitled to an order, as of 
 course, for a dismissal of the suit.^' 
 
 § 183. When replication ought to he filed. — If the 
 party intends to except to the answer, he ought to do 
 so before filing a replication.^^ The Court will not, 
 after a replication, allow the plaintiff to withdraw it, 
 for the purpose of excepting to the answer, without 
 good cause shown.^^ 
 
 § 184. As we have befote seen, in the United States 
 Circuit Courts, the plaintiff is allowed one rule day 
 after filing of answer to file replication.^ In the Vir- 
 ginia State Courts there is no obligation on a plaintiff 
 to file a replication, but if four months elapse after the 
 answer of a defendant is filed, without the cause being 
 set for hearing by the plaintiff and without exceptions 
 being filed to the answer, the defendant may have the 
 cause set for hearing as to himself, ^° and, we. presume, 
 
 20 II. Rob. Pr. 312, and cases there citad. 
 
 21 LXI. anclLSVI. Rules Supreme Court U. S. Upon good cause shewn, 
 however, the Court or Judge may allow a replication to be filed nunc pro 
 tune, the plaintiff submitting to speed the cause, and to such other terms 
 as may be directed. See LXVI. Rule Supreme Court U. S. 
 
 22 A party by replying admits the sufficiency of the answer. Brown v, 
 Richetta, &c., 2 John. Ch. Rep. 425. 
 
 23 See note 21. See II. Rob. Pr. 316. 
 21 See ante, sec. 182. 
 
 25 Code of Virginia, chap. 171, soo. 48. 
 
80 SUIT IN EQUITY. 
 
 if in such case a replication be not filed, the allegations 
 of the defendant in his answer will have the same force 
 as if the cause had been set for hearing by the plaintiff 
 without replication.^" 
 
 §185. Rejoinders. — Rejoinders to replications are 
 Qut of use in this country.^ 
 
 Exceptions to answers. 
 
 §186. These ought regularly to be filed before a 
 replication, but, even after replication, upon good cause 
 shewn; the Court will allow the replication to be with- 
 drawn, and permit the plaintifi" to file exceptions to the 
 answer;^^ 
 
 § 187. When exceptions to answers ought to be filed. 
 As to the rules governing the filing of exceptions to 
 answers and the proceedings thereon in the United 
 States Circuit Courts, see the 61st, 62d, 63d, 64th and 
 65th rules of the United States Supreme Court, printed 
 in the Appendix; to this volume. In the Virginia State 
 Courts, each Equity Court prescribes rules for its own 
 regimen, and these should be consulted as regards this 
 point.* 
 
 26 This question will hardly arise in the Virginia State Courts, it being 
 the practice of clerks in these Courts to enter a general replication to an 
 answer as a matter of course. 
 
 27 It would seem that the utility of rejoinders had coased with the aban- 
 donment of special replications, and accordingly the practice of filing 
 rejoinders in the English Courts is quit's rare, though the subpoena to 
 rejoin yet continues. II. Dan, Ch. Pr. 392. 
 
 28 Ante, see. 183, 2 John. Ch. Hep. 425. 
 
 * In the Virginia State Courts the plaintiff has four months after the 
 filing of an answer in which to file exceptions, if the cause be at rules. 
 We see no reason why the same length of time should not be allowed him, 
 if the defendant files his answer by special Icavo of the Cburt, after the 
 cause has been set for hearing. 
 
EXCEPTIONS TO ANSWERS. 81 
 
 § 188. Exceptions to answers are proper in all cases 
 ■where the answers are defective or evasive, or scan- 
 dalous and impertinent. As to the extent to which 
 answers should respond to the allegations of the bill, 
 see Appendix. Scandal and impertinence in answers 
 are of the same character with scandal and imper- 
 tinence in other pleadings. See ante, sec. 20, and Ap- 
 pendix to this volume. 
 
 § 189. Exceptions to answers must be in writing and 
 signed by counsel, and should state with precision and 
 accuracy the points in which the defendant's answer 
 is deemed defective or evasive, scandalous or imper- 
 tinent.^" 
 
 § 190. The following is the form of exceptions filed 
 to an answer in Chancery : 
 
 In Chancery. 
 
 Between W. W., J. W., and C. L., on behalf 
 of themselves and all other the creditors of 
 J. B. who shall come in and contribute to 
 the expense of this suit, - Complainants, 
 
 and 
 J. G. and T. B., - - Defendants. 
 
 An exception taken by the said complainants to 
 the insufficient answer of the said defendants. 
 For that the said defendants have not, to the best of 
 their knowledge, remembrance, information and belief, 
 answered and set forth a full, just and true inventory 
 and account of all "and singular the goods and chattels, 
 personal estate and effects whatsoever, which J. B. the 
 
 ffl Barton's Suit in Equity, by Ilolcoinbo, 115. 
 
82 SUIT IN EQUITY. 
 
 younger, in the said bill named, was possessed of, en- 
 titled to, or interested in at the time of the date of the 
 indenture in the said bill mentioned, and all the parti- 
 culars whereof the same consisted, and the quantities, 
 qualities, full, real and true values thereof and of every 
 such particulars ; and whether all or some and which of 
 such particulars have not, and when, been possessed or 
 received by or come to the hands of them the said de- 
 fendants, or the one and which of them, or some and 
 what person or persons, by their or either of their order 
 or for their or either of their use, and how and in what 
 manner and when and where and by and to whom and 
 for how much the same and every or any and what part 
 thereof, hath been sold and disposed of ; And whether 
 any and what parts thereof, and to what value or 
 amount, now remain undisposed of, and what is become 
 thereof. 
 
 In all which particulars the .said complainants ex- 
 cept to the answer of the said defendants as 
 evasive, imperfect and insufficient, and humbly 
 pray that the said defendants may be compelled 
 to put in full and sufficient answer thereto. 
 
 § 191. Exeeptions set down to he argued. — See 63d 
 rule of United States Supreme Court as to practice in 
 in United States Circuit Courts. In Virginia State 
 Courts, as soon as exceptions are filed, the statute re- 
 quires them to be set down for argument.^" 
 
 § 192. Exceptions sustained. — If exceptions be put 
 in to an answer for scandal or impertinence, and the 
 exceptions be sustained, the usual course is to refer the 
 
 30 Codo of Va. ch. 171, see. 35. 
 
EXCEPTIONS 10 ANSWBES. 83 
 
 answer to a master or commissioner to expurgate the 
 scandalous or impertinent matter, at the expense of the 
 party filing the answer.^^ 
 
 § 193. If exceptions for insuftciency or evasiveness 
 he sustained, the party will be required to answer 
 ariew ;'^ and, in the United States Circuit Courts, 
 should he fail to do this on the next succeeding rule 
 day, the plaintiflF as of course will he entitled to take 
 the bill so far as the matter of such exceptioiis is con- 
 cerned, as confessed, or, at his election, he may have a 
 writ of attachment to compel the defendant to make a 
 better answer to the matter of the exceptions ; and the 
 defendant, when he is in custody upon such writ, will 
 not be discharged therefrom but by an order of the 
 Court or of a Judge thereof, upon his putting in such 
 answer and complying with such other terms as the 
 Court or Judge may direct.^ 
 
 In the Virginia State Courts, if exceptions to an 
 answer have been sustained, the defendant will be re- 
 quired to put in a second answer, and if the second 
 answer be adjudged insufficient, he may be examined 
 upon interrogatories and committed until he answers 
 them.^* 
 
 § 194. Disclaimers, — The defence by disclaimer is so 
 rarely used in this country, that nothing further need 
 be said of it than what is contained in the fourth 
 chapter of this work. 
 
 31 1 New Ch. Pr. pp. 152, 275. This -was done in Mason t. Mason et als. 
 Taj Chancellor Tajlor, though in that case no exceptions were filed, i 
 Hen. & Mun. 414. 
 
 32 See Code of Virginia, chap. 171 ; also Rules of Supreme Court U. 
 S., published in Appendix to this volume. 
 
 33 LXIV. Kule Supreme Court U. S. 
 
 34 Code of Virginia, chap. 171, sec. 36. 
 
84 SUIT IN BQUITYj 
 
 CHAPTER VI. 
 
 Of Evidence. 
 
 § 195. For the present, we shall not treat of the in-* 
 terlocutory proceedings which are necessary in almost 
 all suits in Equity, such as the compelling the produc- 
 tion of documents, the payment of money into Court, 
 the appointment of a receiver, &c., or inquire into the 
 incidental circumstances which may occur to alter the 
 state of the original parties, or the relation in which 
 they stood to each other at the commencement of the 
 proceeding, necessitating new pleadings to adapt them 
 to the change of circumstances, but we shall proceed at 
 once to consider of such suits,' as if there were no need 
 for such intei-locutory proceedings and no incidental 
 circumstances of the kind alluded to, and, of conse- 
 quence, no change in the pleadings necessary to bring 
 all parties fully at issue before the Court. 
 
 § 196. As at common law, so in Equity, the parties 
 litigant may be at issue upon pure questions of law or 
 pure questions of fact, or upon questions mingling both 
 law and fact. They are at issue upon pure questions 
 of law when the whole case is presented by a demurrer 
 and no other defence is taken, but in other defences 
 there may be an issue either upon the law or the facts 
 of the case, pure or mixed. 
 
 § 197. Whenever there are questions of fact at issue 
 between the parties, each litigant may prove by legiti- 
 mate evidence as many of the facts alleged in his plead- 
 
EVIDENCE. 85 
 
 ings as are material to the decree asked or resisted, in 
 the manner set forth in the following sections. 
 
 § 198. The rules of evidence are the same in equity 
 as at common law. The facts proved ought to be ma- 
 terial to the decree sought for or resisted,' and should 
 be established by legitimate evidence.^ The evidence 
 should be confined to matters in issue ;^ th(8 case as 
 proved must be substantially the same with that stated 
 upon the record ;* and generally, as at law, the burden 
 of proof rests upon the party asserting the afiirmative-.^ 
 
 § 199. It would be a departure from the design of 
 this work to enter at large upon the discussion of the 
 question. What is legitimate evidence ? It should be 
 noted, however, as a peculiarity of Equity Coui'ts, that 
 while by the ordinary rules of evidence in courts of 
 common law a party on the record is an incompetent 
 witness in all cases,* in Courts of Equity, on the con- 
 trary, any party who is made a defendant for form's 
 sake in a cause in which no decree can be obtained 
 which he has any beneficial interest in resisting, or 
 where he has by his answer submitted to a decree, and 
 has therefore ceased to have such interest, or where. 
 
 1 Adams's Equity, 362. 
 
 2 Ibid 363. 
 
 3 II. Dan. Ch. Pr. 410. 
 •1 Ibid. 419. 
 
 5 Ibid. 408. There are exceptions to this rule. When, for instance, a 
 prima faeie right is proTed or admitted by the pleadings, the burden of 
 proof is always upon the person calling such right in question, (II. Dan. 
 Ch. Pr. 409,) even though it devolves upon him the necessity of proving a 
 negative. (Ibid.) 
 
 ■■' There are express statutes making parties on the record competent 
 witnesses in certain cases. Of course, where such statutes are in force, 
 they override the general rule mentioned in the text. 
 
86 SUIT IN EQUITY. 
 
 thougli having an interest, he has it in respect of a part 
 only of the matters in issue, he may be examined as a 
 ■witness, either generally or in respect to those matters 
 in -ffhich he has no mterest.® 
 
 §200. The rule in Equity just mentioned must be 
 restricted to parties defendant ; a party plaintiff is in 
 all cases ^competent as a ■witness, and if a co-plaintiff 
 desires his evidence, and the defendant ■will not consent 
 to the examination, the party must move for leave to 
 strike out his name as plaintiff on payment of the 
 costs 8|,lready incurred, and make him a defendant by 
 amendment ; if the examination of a plaintiff is required 
 on behalf of a defendant, it can only be had by the 
 plaintiff's consent.' 
 
 § 201. It should be further noted, as a peculiarity 
 pertaining to pleadings in Courts of Equity, that as a 
 general rule the statements of the ans'wer of the defen- 
 dant, so far as responsive to the allegations of the bill, 
 are to be taken as true, unless contradicted by t^wo 
 witnesses, or one ■witness ■with strong corroborating cir- 
 cumstances.* This rule imposes an additional burden 
 on the party plaintiff, and to the same extent relieves 
 the party defendant from the necessity of pro'ving the 
 statements in his ans^wer directly responsive to the 
 bill. 
 
 6 Adams's Equity, 364. In the cases mentioned in the text, by the prac- 
 tice generally prevailing in Equity Courts, special liberty should be ob- 
 tained to examine the party as a witness, saving just exceptions; and the 
 application is usually accompanied by a suggestion that the party to be 
 examined has no interest. Ibid. 
 
 ■> Adams's Equity, 365. 
 
 8 II. Dan. Ch. Pr. 404, 405. The principle announced in the text has 
 been affirmed again and again in Courts of Equity in this country. 
 
EVIDENCE. 87 
 
 § 202. The mode of taking evidence at equity differs 
 from that adopted in common law causes. It is taken 
 at law viva voce and publicly ; in equity, it is written,* 
 and, in the English practice, it is secret. The origin 
 of this distinction in the manner of taking testimoily at 
 common law and in equity, is thus unfolded by Adams 
 in his late treatise : 
 
 " The object at law is to enable the jury to give 
 their verdict on the issues joined between the parties. 
 They are not required to decide oti the merits of the 
 case generally, or to elicit a legal conclusion from a 
 series of facts, but are to give their verdict on the 
 balance of testimony, affirmative ai;id negative, direct 
 and indirect, submitted to them on the issues joined. 
 In order, therefore, that this object may be best at- 
 tained, it is necessary, not that the evidence should 
 be correctly recorded, but that at the time of its being 
 given it should be thoroughly compared and sifted ; and 
 this is done by an examination viva voce and in public. 
 The jury are thus aided by the tone and manner of the 
 witness, as well as by his actual assertions. They have, 
 in a comparatively short time, the witnesses on both 
 sides brought under their notice, their inaccuracies or 
 obscurities corrected or explained, and the entire mass 
 
 * The general rule is that found in the text. By special act of Con. 
 gress, in the United States Courts, the mode of proof by oral testimony, 
 and examination of witnesses in open court, shall be the same, as well in 
 the trial of causes in Equitv as of actions at common law. Act Sept. 24, 
 1789, sec. 30. And by statutes of Virginia, in certain cases, written testi- 
 mony, i, e. depositions, may be read at common law. Sometimes, in the 
 English'Courts, an examination viva voce at the hearing is admitted in 
 Equity causes, where written documents essential to the justice of the 
 cause have been neglected to be proved before publication has passed in 
 the suit, or where the plaintiff proceeds to a hearing of the cause upon bill 
 and answer only. II. Dan. Oh Pr. 441. 
 
»8 SUIT IN EQUITY. 
 
 of evidence commented on by counsel, and summed up 
 by the Judge, and the danger of mistake or misappre- 
 hension in the witnesses, as Tvell as that of a deliberate 
 perjury, is partly remedied by the solemnity of a public 
 trial, and in a still greater degree by the searching 
 ordeal of cross-examination. The verdict, when given, 
 is added to the record, but there is no judicial record of 
 the evidence. If the verdict is complained of as being 
 against the evidence, the private notes of the Judge, or 
 the admissions of counsel, are the only materials fur- 
 nished to the Court ; and if the Court in its discretion 
 grants a new trial, such new trial must take place as on 
 a new issue, before a new and independent jury, who 
 will decide according to the evidence laid before them- 
 selves. If the verdict is undisturbed, but its legal 
 effect on the question in dispute is doubted, that, as a 
 question of law, must be decided by the Court; but, 
 for the purpose of such decision, as well as of any sub- 
 sequent appeal, the verdict only, and not the evidence, 
 appears upon the record. 
 
 " In a Court of law, therefore, a viva voce examina- 
 tion in public is the regular mode of proof. In Equity 
 the object of the evidence is different, and so also is 
 the mode of taking it. 
 
 " The trial and determination of disputed issues are 
 not the principal objects of evidence in equity ; for the 
 nature of the questions there litigated does not gene- 
 rally give rise to such issues ; and those which do occur, 
 if they present any serious difficulty of trial, are gene- 
 rally referred to the verdict of a jury. The power, 
 therefore, of sifting and comparing testimony, which is 
 the primary requisite at law, becomes comparatively 
 unimportant in equity : and the principal objects there 
 
EVIDENCE. 89 
 
 contemplated, are, first, to elicit a sworn detail of facts, 
 on which the Court may adjudge the equities; and 
 secondly, to preserve it in an accurate record, for the 
 use, if needed, of the Appellate Court. 
 
 " For this reason it is required in equity that all 
 witnesses shall be examined before the hearing, and 
 their answers taken down in writing, so that, when the 
 cause comes on for decision, the Judge may not be dis- 
 tracted by the trial of separate issues on evidence then 
 brought forward for the first time, but may give his un- 
 divided attention to the decree which the facts admitted 
 or proved will warrant ; and that, if his decree be ap- 
 pealed from, the Court of Appeal may have, in an 
 authorized record, all the materials on which it is 
 founded. 
 
 " The protracted nature of a written examination 
 necessarily involves the risk that defects of evidence 
 might be discovered in the course of taking it, and false 
 testimony procured to remedy them. In order to avoid 
 this risk, the witnesses are examined privately by an 
 officer of the Court; and it is an imperative rule, that 
 until the examination has been completed and the entire 
 depositions given out, which is technically termed pass- 
 ing publication, neither party shall be made acquainted 
 with his adversary's interrogatories, nor with any part 
 of the answers on either side ; and that, after publica- 
 tion, no further witnesses can be examined without 
 special leave." 
 
 § 203. The practice of English Courts in this regard, 
 as thus set forth by Adams, has been very much re- 
 laxed in this country. While, as we shall see in future 
 sections, by the rules governing the practice in Circuit 
 Courts of the United States, certain formalities are re- 
 
90 SUIT IN EQUITY. 
 
 quired previous to "passing publication," of the testi- 
 mony, after it has been taken and returned to the 
 clerk's oflSce, in the Virginia State Courts these are not 
 necessary, the depositions as soon as returned being 
 open tp the inspection of all parties. 
 
 § 204. As ■ already stated, it is only necessary that 
 proof should be adduced on those points as to which 
 the parties are at issue. If a party, either actually or 
 constructively, has admitted all or any of the statements 
 of his opponent, no proof is required as to such state- 
 ments. 
 
 § 205. Thus, the facts alleged in a bill, where they 
 are alleged positively and not by way of pretence, are 
 constructive admissions in favor of the defendant of the 
 facts so alleged, and need not be proved by other evi- 
 dence ;' and so, on the other hand, when a plea has 
 been put in by a defendant either to the whole bill or a 
 part of it, in that case, the bill, or that part of it which 
 is pleaded to, so far as not controverted by the plea, is 
 admitted to be true, and the plaintiff may rest satisfied 
 with the admission.^" Actual admissions, of course, 
 need not be proved, for what better evidence of the 
 truth of a statement can a court desire, than the assent 
 of the party chiefly interested in denying it ? 
 
 §206. There is a class of documentary evidence which 
 proves itself, needing nothing more than the production 
 of the documents, while another class requires the sup- 
 port of parol testimony before it can be received. Of 
 the former class, public acts of Congress and of the 
 State legislatures, certified under the hand of the proper 
 officer, and the records and judicial proceedings of the 
 
 9 U Dan. Ch. Pr. 386. lo Ibid. 
 
EVIDENCE. 91 
 
 several State and Federal Courts in the Union or cer- 
 tified copies of the same are examples, and in tlie latter 
 class are embraced all private documents, such as let- 
 ters, agreements not of record, and the like.^^ 
 
 HOW TESTIMONY TAKEN. 
 
 § 207. In the English Courts, save in the special case 
 of viva voce examination to prove written documents at 
 the hearing mentioned in a note to a previous section,'^ 
 the uniform mode of examining witnesses is by inter- 
 rogatories in writing, exhibited by the party plaintiff or 
 defendant, or directed by the Court to be proposed to 
 or asked of the witnesses in the cause ;'' the examina- 
 tion to be conducted either by an examiner or by com- 
 missioners specially appointed for that purpose by com- 
 mission under the great seal." These interrogatories 
 are termed original, when exhibited on the part of the 
 person who produces the witness ; they are called cross 
 interrogatories when filed on behalf of the adverse 
 party.*' * 
 
 11 The reader should consult works specially devoted to the subject of 
 evidence; also the following acts of Congress: act of May 26th, 1790, 
 prescribing " mode in which public acta, records and judicial proceedings, 
 in each state, shall be authenticated, so as to take effect in every other 
 state." Story's Laws U. S. 1 vol. p. 93 ; act of March 27th, 1804, supple- 
 mentary to act of 1790. Ibid. II. vol. p. 947. And the following statute 
 of Virginia : Code of Virginia, chap. 176, sections 1, 2, 3, 4, 5, 8, 10, 11, 
 14, 15, and 16. 
 
 12 Ante, sec. 202. i3 II. Dan. Ch. Pr. 466. "4 Ibid. 474. is Ibid. 
 
 * It may be of some utility to the reader to be familiar with the several 
 steps in taking testimony in the English Courts. Barton, in his History 
 of a suit in Equity, gives the following account of the manner of taking 
 the examination of witnesses to be used in those courts : 
 
 " In the several proceedings which wo have hitherto had occasion to 
 enumerate, as applicable to our courts of equity, the reader has perceived 
 a great resemblance in substance, though generally a difference inform, to 
 those used in our courts of common law. But in the examination of wit- 
 nesses a material difference prevails, both in form and effect. The exami- 
 
92 SUIT IN EQUITY. 
 
 § 208. In the United States Circuit Courts, the usual 
 mode pursued is that prescribed by the sixty-seventh 
 rule of the United States Supreme Court. That rule 
 is as follows : " After the cause is at issue, commissions 
 to take testimony may be taken out in vacation as v^ell 
 as in term, jointly by both parties, or severally by 
 
 nation in courts of law being ore tenua, in the presence of the judge and 
 the court, and impromptu at the time of trial ; whilst that in the courts of 
 equity, agreeably to the civil law, is conducted in private^ and upon inter- 
 rogatories or questions in writing previously framed for the purpose. 
 
 " If the witnesses reside within twenty miles of London, this examina- 
 tion is taken before a public officer appointed by the court for that particu- 
 lar purpose ; but if they reside beyond that distance, a commission, or 
 dedimua poteetatem, is grantefd to four commissioners, (two nominated by 
 each party,) authorizing them to take the depositions of the several wit- 
 nesses at the respective places of their residence. 
 
 " A Commission to examine Witnesses in Chancery, 
 
 " George the Third, by the grace of God, of Great Britain, France, and 
 Ireland, king, defender of the faith, and so forth, to Samuel Johnson, 
 Mayat Edwards, William Mason, and Peter Warne, greeting: 
 " Know ye, that we, in confidence of your prudence and iidelity, have 
 appointed you, and by these presents do give unto you, any three or two 
 of you, full power and authority diligently to examine all witnesses what- 
 soever, upon certain interrogatories to be exhibited to you, as well on the 
 part of James Willis, complainant, as on the part of Edward Willis and 
 William Willis, defendants, or either of them; and therefore, wc com- 
 mand you, any three or two of you, that, at certain days and places, to be 
 appointed by you for that purpose, you do cause the said witnesses to 
 come before you, and then and there examine each of them apart, upon 
 the said interrogatories, on their respective corporal oaths, first taken 
 before you, any three or two of you, upon the holy evangelists; and that 
 you do take such their examinations, and reduce them into writing on 
 parchment i and when you shall have so taken them, you are to send the 
 same to us in our chancery, without delay, wheresoever it shall then be, 
 closed up and under your seals, or the seals of three or two of you, dis- 
 tinctly and plainly set forth, together with the said interrogatories, and 
 this writ : And we further command you, and every of you, that before 
 you act in, or be present at the swearing or examining any witness or wit- 
 nesses, you do severally take the oath first specified in the schedule here- 
 unto annexed ; and we do give you, any three, two, or one of you, full 
 power and authority, jointly or severally, to administer such oath to the 
 rest or any other of you, upon the holy evangelists ; and we further com- 
 
EVIDENCE, 93 
 
 either party, upon interrogatories filed by the party 
 taking out the same, in the clerk's office, ten days 
 notice thereof being given to the adverse party to file 
 
 mand that all and eyery the olork or clerks employed in taking, writing, 
 transcribing, or ingrossing the deposition or depositions of witnesses to be 
 examined by virtue of these presents, shall, before he or they be permitted 
 to act as clerk or clerks as aforesaid, or be present at such examination, 
 severally take the oath last specified in the said schedule annexed : and 
 we also give you, or any one of you, full power and authority, jointly and 
 severally, to administer such oath to such clerk or clerks, upon the holy 
 evangelists. 
 
 " Witness ourself at Westminster, the day of , in the 36th 
 
 year of our reign. Akdbn, 
 
 Winter. 
 " Indorsed, ' By order of Court.' 
 
 " Label. — To Samuel Johnson, Mayat Edwards, William Mason, and 
 Peter Warne, Gentlemen, any three or two of them, to examine wit- 
 nesses, as well on the part of James Willis, plaintiff, as on the part of 
 Edward Willis and William Willis, defendants, returnable without, delay, 
 on fourteen days notice to the defendants. 
 
 Akden, 
 
 WlSTEE. 
 
 " Proper notice having been given to the defendants of the time and 
 place of executing the commission, interrogatories or questions previously 
 framed and settled are produced on each side, and separately read to the 
 respective witnesses, and their responses or depositions taken down in 
 writing by the commissioners. Interrogatories should be concise and to 
 the point, not leading or directing. The following is the usual form : 
 
 " Interrogatories exhibited in Equity. 
 
 " Interrogatories to be administered to witnesses to be produced, sworn and 
 examined in a certain cause depending in the High Court of Chancery, 
 wherein James Willis, by John Willis, his father and next friend, is 
 complainant, and Edward Willis and William Willis, executors of the 
 last will and testament of Thomas Atkins, deceased, are defendants. 
 On the part and behalf of the said complainant; that is to say, 
 " First Interrogatory. — Do you know the parties, complainants and de- 
 fendants, in the title of those interrogatories named, or any and which of 
 them, and how long, Ac, Ac. Declare the truth and your knowledge 
 therein. 
 
 " Second Interrogatory. — Did or did not the said Thomas Atkins, in the 
 foregoing interrogatories named, ever, and when and where; in your sight 
 or presence, or in the presence of any and what other person or persons, 
 
94 SUIT IN EQUITY. 
 
 cross interrogatories" before the issuing of the commis- 
 sion ; and if no cross interrogatories are filed at the 
 
 to your knowledge, sign, seal, publieh or declare, his last will and testa- 
 ment, in writing, or any other and what writing, as, for, or purporting to 
 he hia last will, &a. &o. ? Declare, Ac. 
 
 " Third Interrogatory. — Do you know of any application or applications 
 which have been made by or on the behalf of the above named complain- 
 ant, to the defendants above named, or either and which of them, for the 
 payment of the legacy of £800, in the pleadings in this cause mentioned 
 to have been bequeathed to or for the benefit of the said complainant, &c. 
 If yea, set forth when, or about what time or times respectively, and by 
 whom, by name, and to whom, and where such application or applications 
 was or were so made, and whether the same was or were, in any and what 
 manner, complied with or assented to, or refused and rejected, and by 
 whom, and for any and what reasons? Declare, Ac. 
 
 " Lastly. — Do you know of any other matter or thing, or have you heard 
 or can you say, any thing touching the matters in question in this cause, 
 that may tend to the benefit and advantage of the complainant in this 
 cause, besides what you have been interrogated unto? If yea, declare the 
 same fully and at large, as if you had been particularly interrogated 
 thereto. 
 
 A. Mahning. 
 
 " After the oaths have been duly administered'to the commissioners, 
 their clerks, and the respective witnesses, the depositions are taken and 
 transcribed in the following form : 
 
 '* Depositions in Equity hy Commission, 
 
 " Depositions of witnesses, produced, sworn, and examined, on the 
 
 day of in the thirty-sixth year of his present majesty King George 
 
 the Third, and in the year of our Lord, 1795, at the house of W. Brown, 
 known by the sign of the Bush, situated in the parish of Kelsal, in the 
 county of Nottingham, by virtue of a commission issuing out of his 
 majesty's High Court of Chancery, to us, Samuel Johnson, William 
 Mason, and others, directed, for the examination of witnesses in a cause 
 therein depending, between James Willis, by John Willis, his father and 
 next friend, plaintiff, and Edward Willis and William Willis, defendants, 
 on the part and behalf of the said complainant, we, the acting cemmis- 
 sioners, under the said commission, and also the respective clerks, hy us 
 employed, in takings, writing, transcribing, and engrossing, the said 
 depositions, having first duly taken the oaths annexed to the said 
 commission, according to the tenor and efi'ect thereof, and as thereby 
 required. 
 "James Henry Nevil, of Pelligate, in the county of Northampton, Esq., 
 
 aged thirty years, or thereabouts, a witness produced, sworn and examined 
 
EVIDENCE. 95 
 
 expiration of the time, the commission may issue ex 
 parte. In all cases the commissioner or commissioners 
 shall be named by the Court or by a Judge thereof." 
 
 on tlie part and behalf of the said complainant; James Willis^ deposeth 
 and saith, as follows : 
 
 " To the first interrogatory— This deponent saith, that he knows the said 
 complainant, James Willis, and hath so known him for the space of three 
 years, last past, or thereabouts, and doth also know and is 'well acquainted 
 with the said defendants, Edward Willis and William Willis, &a. 
 
 " To the second interrogatory — This deponent«aith, that he was present, 
 and did see Thomas Atkins, in the pleadings in this cause mentioned, 
 sign, seal, publish, and declare, as and for his last will and testament, a 
 certain writing, &b., <tc. 
 
 " To the third interrogatory — This deponent saith, that in or about the 
 month of January last, he, this deponent, was, together with John Willis, 
 the father of the said complainant, James Willis, at the house of, and in 
 company with, the said William Willis, and doth well remember that the 
 said John Willis did then and there address the said defendant, on the 
 part and in behalf of the said complainant, and requested that the said 
 William Willis, or his co-executor, the said Edward Willis, would pay or 
 otherwise secure, for the benefit of the said oomplainant, the said legacy 
 of £800, &e. io. 
 
 " And to the last interrogatory — This deponent saith, he doth not know 
 of any other matter or thing, &o. &o. 
 
 James Henry Netil, 
 Samuel Johnson, 
 William Mason. 
 
 " If the witness be examined, in town, before the examiner, the form 
 will necessarily vary. 
 
 ** Depositions in Equity he/ore an Examiner, 
 "Witnesses examined in a cause depending and at issue in this honorable 
 court, wherein James Willis, an infant, by John Willis, his father and 
 next friend, is complainant; and Edward Willis and William Willis are 
 defendants, on the part and behalf of the eaid complainant^ by Alex- 
 ander Morgan, Esq., examiner in chancery. 
 
 " James Henry Nevil, of, Ac, aged thirty years and upwards, being pro- 
 duced as a witness, on the part and 4)ehalf of the complainant in this 
 
 cause, was, on the day of , in the year of our Lord 1795, 
 
 shewn in person, at the seat of Mr. Hill, (who is the clerk in court of the 
 defendants, in the title hereof named,) by Mr.Vaugn, one of the sworn 
 clerks in my ofiice, who then also left a note of the name, title, and placo 
 of abode of the deponent, at the seat aforesaid ; and afterwards, on the 
 
96 SUIT IN EQUITY. 
 
 § 209. The rule just cited further prescribes, that if 
 the " parties shall so agree, the testimony may be taken 
 upon oral interrogatories by the parties or their agents, 
 without filing any written interrogatories;" and this is 
 sometimes done. 
 
 § 210. Testimony may also be taken in the United 
 States Circuit Courts, after the cause is at issue, ac- 
 cording to the provisions of the acts of Congress. 
 There were two modes ,of taking depositions under the 
 act of Congress of 1789, usually termed the "Judiciary 
 Act." By the first, which relates exclusively to depo- 
 sitions de bene esse, notice in certain cases is not neces- 
 sary and a commission is not required ; by the second, 
 a commission, or dedimus potestatem, is required, and 
 depositions Ifaken thereunder are not, under any circum- 
 stances, to be considered as taken de bene esse.f 
 
 same day and year, the said deponent being sw;orn and examined, de- 
 poseth and saith as follows : 
 
 " 1st. To the first interrogatories the said deponent saith, 
 
 that, &o. (as before.) 
 
 A. Morgan, 
 
 K. HiNSE. 
 
 '' The depositions being completed, are clo'sely bound up, and (being 
 scoured from inspection by the signature and seals of the several commis- 
 sioners,) sent to the court out of which the commission issued, by a mes- 
 senger, who makes oath "that the said depositions hare not been opened 
 or altered since they were delivered to his charge." They are then com- 
 mitted to the custody of the clerk, in court, who prepared the commission, 
 if taken in the county, or detained by the examiner, if taken in town, till 
 publication has passed by rule or order of court. After which they may 
 b« inspected, or copies of them delivered, at the request of any of the 
 parties. 
 
 " After publication has passed, the parties regularly are to proceed to a 
 hearing." 
 
 t See Buddicum v. Kirl:, 3 Cranch 293; Sergeant's lessee v. Biddle el 
 als, 4 Wheat. 508. 
 
EVIDENCE — UNIT-ED STATES COURTS. 97 
 
 § 211.' The first of these modes is thus prescribed by 
 the thirtieth section of the judiciary act : " When the 
 testimony of any person shall be necessary in any civil 
 cause depending in any district, in any Court of the 
 United States, who shall live at a greater distance from 
 the place of trial than one hundred miles, or is bound 
 on a voyage to sea, or is about to go out of the United 
 States, or out of such district, and to a greater distance 
 from the place of trial than as aforesaid, before the 
 time of trial, or is ancient, or very infirm, the deposi- 
 tion of such person may be taken, de bene esse, before 
 any justice or judge of any of the courts of the United 
 States, or before any chancellor, justice or judge of a 
 supreme or superior court, mayor, or chief magistrate 
 of a city, or judge of a county court or court of com- 
 mon pleas of any of the United States, not being of 
 counsel or attorney to either of the parties, or inter- 
 ested in the event of the cause, provided that a notifi- 
 cation from the magistrate before whom the deposition 
 is to be taken to the adverse party, to be present at 
 the taking of the same, and to put interrogatories, if 
 he think fit, be first made out and served on the adverse 
 party, or his attorney, as either may be nearest, if 
 either is within one hundred miles of the place of such 
 caption, allowing time for their attendance after noti- 
 fied, not less than at the rate of one day, Sundays » 
 exclusive, for every twenty miles travel."'^ And every 
 
 16 If no notice is given to the adverse party of the time and place of 
 taking the deposition, agreeably to the provisions of this statute, the rules 
 of United States Supreme Court prescribe that upon motion and affidavit 
 of the fact the adverse party shall be entitled to a cross-examination of 
 the witness, either under a commission or by a new deposition taken under 
 the acts of Congress, if a court or a judge thereof shall, under all the cir- 
 cumstances, deem it reasonable. See LXVIII. Rule Supreme Court U. S. 
 
 9 
 
98 SUIT IN EQUITY. 
 
 person deposing as aforesaid, shall be carefully ex- 
 amined and cautioned, and sworn or a£Srmed to 
 testify the whole truth, and shall subscribe the testi- 
 mony by him or her given, after the same shall be 
 reduced to writing, which shall be done only by the 
 magistra,te taking the deposition, or by the deponent in 
 his presence. And the depositions so taken shall be 
 retained by such magistrate, until he deliver the same 
 with his own hand into the court for which they are 
 taken, or shall, together with a certificate of the 
 reasons as aforesaid, of their being taken, and of the 
 notice, if any given, to the adverse party, be by him, 
 the said magistrate, sealed up and directed to such 
 court, and remain under his seal until opened in court. 
 And any person may be compelled to appear and de- 
 pose as aforesaid, in the same manner as to appear and 
 testify in court.^' 
 
 § 212. As a proviso to the section of the judiciary 
 act just cited, the following language is appended : 
 " Provided, that nothing herein shall be construed 
 to prevent any court of the United States from grant- 
 ing a dedimus potestatem, to take depositions ac- 
 cording to common usage, when it may be necessary to 
 prevent a failure or delay of justice ; which power they 
 shall severally possess ; nor to extend to depositions 
 taken in perpetuam rei memoriam, which, if they relate 
 to matters that may be cognizable in any court of the 
 
 <7 To admit or use depositions, on the trial of any cause, taken in the 
 manner thus prescribed, it must appear that at the time of such trial the 
 witnesses are dead, or gone out of the United States, or at a greater dis- 
 tance from the place of trial than one hundred miles; or, that by reason 
 of age, sickness, bodily infirmity, or imprisonment, they are unable to 
 travel and appear at court. Story's Laws, U. S., vol. 1, p. 61. 
 
EVIDENCE — UNITED STATES COURTS. 99 
 
 United States, a circuit court, on application thereto 
 made as a court of equity, may, according to the 
 usages in chancery, direct to be taken." '* 
 
 The plain intent of this proviso was, to recognize as 
 still existent and in force in the United States Courts 
 the powers here spoken of. 
 
 § 213. By the act of Congress of April 29th, 1802, 
 sec. 25, it was further enacted, " that, in all suits in 
 equity, it shall be in the discretion of the court, upon 
 the request of either party, to order the testimony of 
 the witnesses therein to be taken by depositions ; which 
 depositions shall be taken in conformity to the regula- 
 tions prescribed by law for the courts of the highest 
 original jurisdiction in equity, in cases of a similar 
 nature, in that State in which the court of the United 
 States may be holden : Provided, however, that nothing 
 herein contained shall extend to the circuit courts which 
 may be holden in those States in which testimony in 
 chancery is not taken by deposition." " 
 
 § 214. And by the act of February 20th, 1812, sec. 
 3, it was enacted, " that in any cause before a court of 
 the United States, it shall be lawful for such court, in 
 its discretion, to admit in evidence any deposition taken 
 in perpetuam rei memoriam, which would be so admis- 
 sible in a court of the State wherein such cause is 
 pending according to the laws thereof."™ 
 
 § 215. The 67th rule of the Supreme Court U. S. pre- 
 scribes that " after the cause is at issue, commissions 
 to take testimony may be taken out in vacation as well 
 
 IS story's Laws, U. S. vol. 1, p. 65. 
 
 19 Story's Laws, V. S. 861. 
 
 20 Ibid. 1215. 
 
100 SUIT IN EQUITY. 
 
 as in term, jointly by both parties or severally by either 
 party, upon interrogatories filed by the party, taking 
 out the same, in the clerk's oflSce, ten days' notice 
 thereof being given to the adverse party to file cross- 
 interrogatories before the issuing of the commission ; 
 and if po cross-interrogatories are filed at the expira- 
 tion of the time, the commission may issue ex parte. 
 In all cases the commissioner or commissioners shall be 
 named by the court or by a judge thereof. If the 
 parties shall so agree, the testimony may be taken upon 
 oral interrogatories by the parties or their agents, with- 
 out filing any written interrogatories." 
 
 § 216. Three months and no more are allowed for 
 the taking of testimony after the cause is at issue, 
 unless the court or a judge thereof shall, upon special 
 cause shown by either party, enlarge the time ; and no 
 testimony taken after such period will be allowed to be 
 read in evidence at the hearing. Immediately upon the 
 return of the commissions and depositions, containing 
 the testimony, into the clerk's office, publication thereof 
 may be ordered in the clerk's office by any judge of the 
 court, upon due notice to the parties, or it may be en- 
 larged, as he may deem reasonable under all circum- 
 stances. But by consent of the parties, publication of 
 the testimony may at any time pass in the clerk's office, 
 such consent being in writing, and a copy thereof 
 entered in the order book, or endorsed upon the depo- 
 sition or testimony,^' 
 
 § 21T. It will be noticed that in previous sections, 
 provision is alone made for the taking of testimony 
 after the cause is at issue, unless we are to construe the 
 
 21 LXIX. Rule Supreme Court U. S. 
 
EVIDENCE — VIEGINIA SIATt dOUETS. 161 
 
 act of Congress cited in section 211 as applying, to 
 equity causes, and intended to provide for tte taking of 
 depositions before as well as after issue. Sometimes, 
 to compel a party to defer taking his testimony until 
 the parties are fully at issue, would be to deprive 
 him of it altogether; before issue, the witnesses 
 might die or depart the country ; and accordingly to 
 remedy this defect the seventieth rule of the United 
 States Supreme Court prescribes that " after any bill 
 filed, and before the defendant hath answered the same, 
 upon affidavit made that any of the plaintiff's witnesses 
 are aged or infirm, or going out of the country, or that 
 any of them is a single witness to a material fact, the 
 clerk of the court shall, as of course, upon the appli- 
 cation of the plaintiff, issue a commission to such com- 
 missioner or commissioners as a judge of the court may 
 direct, to take the examination of such witness or wit- 
 nesses de bene esse, upon giving due notice to the 
 adverse party of the time and place of taking his 
 testimony." * 
 
 § 218. The manner of taking testimony in equity 
 causes in the Virginia State Courts is much simpler 
 than that usually adopted in United States Circuit 
 Courts. In the Virginia State Courts, in equity causes, 
 evidence is uniformly taken by way of depositions ; the 
 witnesses are examined orally, and their testimony^ is 
 reduced to writing. 
 
 §219. A commission or dedimus potestatem is not 
 necessary in equity causes in the Virginia State Courts, • 
 save when the witness resides or is out of the State at 
 
 * The same rule prevails in the English practice. II San. Ch. Fr. 541. 
 
l02 SUl« IS EQUITY, 
 
 the' time the deposition is taken ;^ when witness resides 
 or is in the State when examined, whether a party to 
 the suit or not,* the deposition may be taken without a 
 commission.''' 
 
 § 220. The depositions may be taken before the par- 
 ties are at issue ;t but reasonable notice should be 
 given to the adverse party of the time and place of 
 taking every deposition.^* 
 
 §221. 8(0, too, a deposition in the Virginia State 
 Courts may be read, if returned at any time before the 
 hearing of the cause, or though after an interlocutory 
 decree, if it be as to a matter not thereby adjudged, 
 and be returned before, a final decree.^ Even after a 
 final decree or order in a cause, from or to which an 
 appeal or supersedeas has been or might be allowed, a 
 deposition may be taken for any party to such cause, 
 or for or against his or her husband, personal represen- 
 tative, heirs or devisees, and the deposition may be read 
 in any future trial that may be directed, if the same 
 could properly be read had there been no such decree 
 dr order.''^ 
 
 22 Code of Va. chap. 176, sec. 29. An affidavit that a witness resides or 
 is out of the state is prima facie evidence of the fact, though the affidavit 
 be made by a party and without notice. Ibid. sec. 27. 
 
 * When a deposition appears to be of a party, all exceptions may be 
 made to the reading of it which could have been made if it were taken 
 under a special commission ; and the taking of such deposition shall not 
 deprive the party taking it of any relief h<> would otherwise be entiUed to 
 against the deponent. See Code of Va. chap. 176, sec. 28. 
 
 Z) Ibid. sec. 28. 
 
 t This is the practice, and the words of the present statute, providing 
 that " in any pending case" depositions may be taken, clearly sanction this 
 course. See Code of Virginia, chap. 176, sec. 28. 
 
 24 Code of Va. chap. 176, sec. 30. 25 Ibid 26 ibid. sec. 33. 
 
EVIDENCE — VIRGINIA STATE COtjiliS. l03 
 
 § 222. Justices, notaries public and commissioners in 
 chancery are authorized to take depositions of ydtnesses 
 who reside or are in the State.^ Such oflScers may ad- 
 minister all necessary oaths, and are simply req^uired to 
 certify under their hand the taking of the depositions.''^ 
 
 § 223. Should witnesses reside or be out of the State 
 when examined, a commission may be issued by the 
 clerk of the Court wherein the case is pending, directed, 
 if the depositions are to be taken out of the State but 
 in the United States, to' a commissioner appointed by 
 the governor of Virginia, or to any justice or notary 
 public of the State wherein the witnesses may be ; and, 
 if the depositions are to be taken in a foreign country, 
 the commission should be directed to such commissioner 
 or commissioners as may be agreed upon by the parties 
 or appointed by the Court, or, if there be none such, 
 to any American minister plenipotentiary, charge 
 d'affaires, consul general, vice consul, or commercial 
 agent appointed by the government of the United 
 States, or to the mayor or other chief magistrate of 
 any city, town or corporation in such country, or any 
 notary public therein. Any person or persons to whom 
 a commission is so directed may administer an oath to 
 the witness, and take and certify the deposition with his 
 official seal annexed ; and if he have none, then the 
 genuineness of his signature shall be authenticated by 
 some officer of the same state or country, under his 
 official seal, unless the deposition is taken by a justice 
 out of this State but in the United States ; in which 
 case his certificate will be received without any seal 
 annexed, or other authentication of his signature. ^ 
 
 27 Code of Virginia, chap. 176, sec. 28. ^ Ibid. 29 Ibid. sec. 29. 
 
i04 SUI* IN EQUITY. 
 
 How witnesses sumnidiied and corhpelled to attend, 
 production of documents, ^c. 
 
 § 224. United States Courts. — By act of Congress of 
 24tli January, 1827, regulating practice in United 
 States Circuit Courts in this regard, it is provided, 
 that 
 
 (1). ' Whenever a cdnlmission shall be issued by any 
 court of the United States, for taking the testimony of 
 a witness at any place within the United States, or the 
 territories thereof, it shall be lawful for the clerk of 
 any Court of the United States, for the district or terri- 
 tory within which such place may be, and he is hereby 
 enjoined and required, upon the application of either of 
 the parties in the proceeding, in which such commission 
 shall have been issued, as his agent, to issue subpoena 
 for such wiiness, residing or being withiii the said dis- 
 trict or territory, as shall be named in the said com- 
 mission, commanding such witness to appear and testify 
 before the commissioner or commissioners, in such com- 
 mission named, at a time and place in the subpoena to 
 be stated ; and if any witness, after being duly served 
 with such subpoena, shall refuse or neglect to appear, 
 or, after appearing, shall refuse to testify, ^not being 
 privileged from .giving testimony,) sudh refusal or neg- 
 lect being proved to the satisfaction of any judge of the 
 court, whose clerk ■ehall have issued such subpoena, he 
 may thereupon proeeed to enforce obedience to the pro- 
 cess, or to punish the disobedience, in like manner as 
 any court of the United States may do in case of dis- 
 obedience to process of subpoena ad tesUfioandmn, 
 issued by such court ; and the witness, in such cases, 
 shall be allowed the same compensation as is allowed to 
 witnesses attending the courts of the United States : 
 
EVIDENCE — ^UNITED STATES COURTS. 105 
 
 Provided, that no, witness shall be required to attend at 
 any place out of the county in which he may reside, 
 nor more than forty miles from his place of residence, 
 to give his or her deposition, under this law; 
 
 (2.) ' Whenever either of the parties shall apply to 
 any judge of a court of the United States, in the district 
 or territory of the United States in which the place for 
 taking such testimony may be, for a subpoena dv/ces 
 tecum, commanding the witness therein to be named to 
 appear and testify before the said commissioner or com- 
 missioners, at the time and place in the said subpoena 
 to be stated,, and also to bring or carry with him, and 
 produce to such commissioner or commissioners, any 
 paper, writing, or written instrument, or book, or other 
 documents, supposed to be in the possession or power of 
 such witness, such judge being satisfied, by the affidavit 
 of the person applying, or otherwise, that there is 
 reason to believe that such paper, writing, written in- 
 strument, book, or other document, is in the possession 
 or power of the witness, and that the same, if produced, 
 would be competent and material evidence for the party 
 applying therefor, may order the clerk of the court, of 
 which he is a judge, to issue such subpoena duces tecum 
 accordingly, and, if such witness, after being duly 
 served with such subpoena duces tecum, shall fail to pro- 
 duce any such paper, writing, written instrument, book, 
 or other document, being in the possession or power of 
 such witness, and described in such subpoena duces 
 tecum, before,, and to such commissioner or commis- 
 sioners, at the time and place in such subpoena stated, 
 such failure being proved to the satisfaction of the said 
 judge, he may proceed to enforce obedience to the said 
 process of subpoena duaes tecum, or to punish the dis- 
 
106 SUIT IN EQUITY. 
 
 obedience in like manner as any court of the United 
 States may do in case of disobedience to a like process, 
 issued by such court; and ■when any such paper, 
 writing, written instrument, book, or other document, 
 shall be produced to such commissioner or commis- 
 sioners, he or they shall, at the cost of the party re- 
 quiring the same, cause to be made a fair and correct 
 copy thereof, or of so much thereof as shall be required 
 by either of the parties: Provided, that no witness 
 shall be deemed guilty of contempt for disobeying any 
 subpoena directed to him by virtue of this act, unless 
 his fees for going to, returning from, and one day's 
 attendance at the place of examination, shall be paid 
 or tendered to him at the time of the service of the 
 subpoena.' ^ 
 
 §225. Virginia State Courts.— The Code of Vir- 
 ginia, chapter 176, sec. 20, prescribes, that " a summons 
 may be issued, directed 'as other process, commanding 
 the officer to summon any person to attend on the day 
 and at the place that such attendance is desired, to 
 give evidence before a court, arbitrators, umpire, jus- 
 tice, notary public, or any commissioner appointed by 
 a court. The summons may be issued, if the atten- 
 dance be desired at a court, by the clerk thereof, and 
 in the other cases by any person before whom, or a 
 clerk of a court of a county or corporation in which, 
 the attendance is desired, or if it be desired before a jus- 
 tice, by such or any other justice ; it shall express on 
 whose behalf, and in what case, or about what matter, 
 the witness is to attend. This section shall be deemed to 
 authorize a summons to compel attendance before com- 
 
 30 Act 24th Jan. 1827. Story's Laws, U. S. vol. III. p. 2040. 
 
EVIDENCE — VIRGINIA STATE COUKTS. 107 
 
 missioners or other persons appointed by authority of 
 another state ; but only in case they be citizens of this 
 state, and the summons requires the attendance of the 
 iritness at a place not out of his county." 
 
 § 226. The 21st section of the same chapter of the 
 Code of Virginia provides, that "When it appears by 
 affidavit that a writing or document in the possession of 
 a person not a party to the matter in controversy is 
 material and proper to be produced before a court, or 
 any person appointed by it or acting under its process 
 or authority, such court or a judge thereof in vacation, 
 may order the clerk of said court to issue a subpoena 
 duces tecum to compel such production at a time and 
 place to be specified in the order." 
 
 § 227. The 22d section of the same chapter provides, 
 that "If any person, after being served with such 
 summons fail to attend to give evidence, or to produce 
 such writing or document, according to the summons, 
 the court whose clerk issued the summons, or if it was 
 not issued by a clerk, a court of the county or corpo- 
 ration in which the attendance is desired, on a special 
 report thereof by the person or pei^sons before whom 
 there was the failure to attend, on proof that there 
 was paid to him, (if it was required,) a reasonable 
 time before he was required to attend, the allowance 
 for one day's attendance, and his mileage and tolls, 
 shall, after service of a notice to or rule upon him 
 to shew cause against it, (if no sufficient cause be 
 shewn against it,) fine him not exceeding twenty dol- 
 lars, to the use of the party for whom he was sum- 
 moned, and may proceed by attachment to compel him 
 to attend and give his evidence, at such time and place 
 as it may deem fit. The witness shall, moreover, be 
 liable to any party grieved, for damages." 
 
108 SUIT IN EQUITY. 
 
 § 228. And by the 23d section of the same chapter 
 it is provided, that " If a person, after being served 
 ■with such summons, shall attend, and yet refuse to be 
 sworn, or to give evidence, or to produce any writing or 
 document required, he may, by order of the court 
 whose clerk issued said summons, or of the person 
 before whom he was summoned to attend, be committed 
 to jail, there to remain until he shall, in custody of the 
 jailor, give such evidence or produce such writing or 
 document." 
 
 DEMTJERBK TO INTERROGATORIES. 
 
 § 229. English works on practice in Equity speak of 
 a demurrer to interrogatories, which is simply a tender 
 of reasons by the witness why he should not answer the 
 questions propounded to him.'' 
 
 SUPPRESSING DEPOSITIONS. 
 
 § 230. In the English Courts, after the depositions 
 are published, the solicitors examine them, and if there 
 are any objections to their being read, 1^ Court is 
 asked to suppress them. The usual grounds are, that 
 the interrogatories are leading, or the interrogatories 
 and depositions scandalous. Other irregularities may 
 be noted in this manner. 
 
 § 231. In the United States Circuit Courts, and the 
 Virginia State Courts, objections are taken to the read- 
 ing of depositions, for the reasons mentioned in the last 
 section, or for other informalities. These are termed 
 "exceptions," and may be made before or after the 
 
 31 See II. Dan. Cli. Pr. 654. 
 
VIRGINIA STATE COURTS. 109 
 
 depositions are returned. It is always better to except 
 to irrelevant or improper questions, as soon as put, as 
 well as to any answers whicli may be given. 
 
 [Qucere. Is a tender of reasons by a witness, or^ as it is called in 
 Englisli works, a demurrer to interrogatories, necessary in this country, 
 when the witness objects to the questions propounded to him ? Will not 
 his simple objection to answer the question, without stating his reasons 
 for so doing, serve every purpose accomplished by a demurrer to inter- 
 rogatories ?J 
 
 RB-BXAMINATION OF WITNESSES. 
 
 § 232, A party, after having once taken the depo- 
 sition of a witness in a cause, is not at liberty to 
 examine him a second time without special leave ob- 
 tained of the Court. This practice prevails in the 
 English Courts, in the United States Circuit Courts, 
 and in the Virginia State Courts. The object of this 
 rule is to prevent the tampering with witnesses or in- 
 ducing them to retract or contradict or expl^ away 
 in a second examination, what they have stated in the 
 first ; and while the Court will, in the exercise of a 
 sound discretion, permit £^ second examination where 
 justice seems to require it, this permission should be 
 guarded with strict scrutiny. 
 
 § 233. The forms necessary in taking depositions in 
 the United States Circuit Courts, and in the Virginia 
 State Courts, will be found in the Appendix to this 
 volume. 
 
 10 
 
110 SUIT IN EQUITY. 
 
 CHAPTER yil. 
 
 Of the hearing and decree. 
 
 § 234. It is the practice in England, when the cause 
 is set down for hearing, for the plaintiff to give notice 
 to the adverse party of- the day appointed for the 
 hearing. This is done by means of a writ called a 
 subpoena to hear judgment} This is not the practice, 
 either in the Yirginia State Courts or in the United 
 States Circuit Court held in Virginia. In these 
 Courts, all the purposes of the subpoena to hear judg- 
 ment a||e fully accomplished by the entry of the cause 
 upon the court docket. 
 
 § 235. The mode of hearing causes in equity is in 
 nearly every respect similar to the course pursued 
 before courts of common law. The party plaintiff, on 
 the main hearing, or in case of a motion, the party 
 moving, usually opens the argument, which is replied to 
 by the opposite party, and the argument is then closed 
 by the former. For the convenience of the Court, 
 arguments in equity causes are usually written out, 
 instead of being spoken ; but there is no positive rule 
 on the subject. Each Court prescribes for its own 
 regimen the course to be pursued by counsel or parties, 
 in this regard. 
 
 1 II. Dan. Ch. Pr. 60?. 
 
PECKBJ). 
 
 Ill 
 
 § 236. After the cause is heard, the Court prooeeda 
 to adjudicate the rights of the parties ; and this adjudi- 
 cation is termed its decree or order. 
 
 §237. A distinction has been drawn in the books 
 between decrees proper and interh)cutory orders, the 
 latter having reference to- orders not made at the 
 hearing of the cause, i. e., when the parties are not 
 fully at issue before the Court,' and the former referring 
 to such adjudications or orders as the Court may make 
 at the hearing. 
 
 § 238. This distinction is one more in name than in 
 fact. While it is true, that in the case of interlocutory 
 orders, so called, a final disposition of the cause cannot 
 be made, it is true that when the cause comes on to be 
 heard, and the parties are fully at issue before the 
 Court, either one of the subjects detailed as proper for 
 an interlocutory order may then be decreed. Without 
 attempting, however, to disturb the long-settled practice 
 of legal writers in this regard, the distinction between 
 these interlocutory orders, so called, and decrees at the 
 hearing, will be preserved in this volume, and the former 
 will be treated of in a subsequent part of this work. 
 To the discussion of decrees we now proceed. 
 
 § 239. Decrees are defined by Daniell to be the sen- 
 tence or order of the Court pronounced on hearing and 
 understanding all the points in issue, and determining 
 the right of aU the parties to the suit according to 
 equity and good conscience.* 
 
 § 240. Decrees are either interlocutory or final. An 
 interlocutory decree is when the consideration of the 
 particular question to be determined, or of further di- 
 
 2 Adams's Equity, 348. 3 II. Dan. Ch. Pr. 631. 
 
112 SUIT IN EQUITY. 
 
 rections generally, is reserved until a future hearing ;° a 
 decree is final, -when it fully decides and disposes of the 
 ■whole merits of the case, and reserves no- further ques- 
 tions or directions for the future judgment of the Court, 
 so that it will not be necessary to bring the cause again 
 before the Court for another decision.* It is not abso- 
 lutely necessary to the finality of a decree that it 
 should make such a disposition of every njatter in the 
 cause, as that it may be at once removied from the 
 docket. A decree, disposing of the who|« subject, de- 
 ciding all questions in controversy, ascertaining the 
 rights of all parties and awarding the costs, though it 
 appoint a commissioner to sell part of the subject, and 
 account for and pay the proceeds to the parties, with 
 liberty to them to apply to the court to add other or 
 substitute new commissioners, or for a partition of the 
 subject to be sold in kind, is a final decree.' 
 
 " 11 Dan. Ch. Pr. 631. See sec. 250, post. 
 
 * Hoi. Int. to Equity, p. 310. In Thomas v. FitdiugTi, i Leigh 209; 
 Judge Carr says, "Where any thing is reserved by the court for future 
 adjudication in order to settle the matters in controversy, the decree is 
 interlocutory; but where, upon the hearing, all these matters are settled 
 by the decree, such decree is final, though much may remain to be done 
 before it can be completely carried into execution, and though to effec- 
 tuate such execution the cause is retained and leave given to the parties 
 to apply for the future aid of the court." In Coche v. Gilpeuj 1 Bob. R. 
 20> Judge Baldwin investigated the subject very fully, and after adverting 
 to the necessity of resorting to some criterion by which the distinction 
 between the two kinds of decree may be preserved, remarks, " For my 
 own part, I am aware of no proper criterion but this : Where the further 
 action of the court in the cause" (which he contradistinguishes from the 
 action of the court heyond the cause, to which he afterwards adverts,) 
 "is necessary to give completely the relief contemplated by the Court, 
 there the decree upon which the question arises is to be regarded, not as 
 final, but interlocutory." 
 
 6 JjTfflrTCi/ V. i^ronson, 1 Leigh 108. See other cases cited in Appendix 
 to this volume, in which decree has been pronounced firtal, though it was 
 necessary that tho cause should bo kept in court for other proceedings. 
 
DECREE. 
 
 113 
 
 § 241. It rarely happens that a first decree can be 
 final or conclude the cause. Thus, if any matter of 
 fact is strongly controverted, the Court is so sensible 
 of the defidency of trial by ■written evidence, that it 
 will not bind the parties thereby, but -will direct the 
 matter to be tried by a jury, which is termed, in the, 
 books, directing an issue out of chancery.^ And so, 
 too, in the Court of .Chancery in England, if a question 
 of law arises, that Court will direct a case to be stated, 
 and send to a court of common law for its opinion.'' 
 This last mentioned practice, however, does not prevail 
 in this country. 
 
 §242. In many cases, certain preliminary inquiries 
 are necessary before a final decree should be pro- 
 nounced ; and these will be ; ordered to be made by one 
 of the masters of the court.^ As, to instance, in all 
 cases relating 'to the distribution of an estate, or where 
 
 6 This was formerly effected in England by what was termed a feigned 
 iaaue. As juries could not be summoned to attend the Court of Chancery, 
 the fact was usually ordered to be tried at the bar of one of the courts of 
 common Uw or at the assizes ; and to do this effectually, so' that the point 
 in dispute, and that only, should be put in issue, an action was feigned to 
 be brought, wherein the pretended plaintiff declares that he laid a wager 
 of five pounds with the defendant that a particular thing was true ; as, for 
 instance, that A. was heir-at-law to B., and then avers that it is so, and 
 brings his action for the five pounds. The defendant admits the wager, 
 but avers that A. Is not the heir-at-law to B., and thereupon that issue is 
 joined, which is directed out of Chancery to be tried. And until this 
 feigned issue was tried, no final decree could be pronounced in the cause. 
 II. Dan. Ch. Pr. 631. This fiction is now dispensed with in England, and 
 the question may bo referred to the jury in a direct form. 8 A 9 Vict, 
 ch. 109, 3.19. In the Virginia State Courts, the issue is ordered in the 
 direct form, and may be tried either at the bar of the Court of Equity, or 
 before a court of common law. 
 
 7 II. Dan. Ch. Pr. 766. 
 
 8 In Virginia State Courts, masters are termed "commissioners," or 
 " master commissioners." 
 
Il4 SUIT IN EQUITY. 
 
 there is a fund distributable among persons constituting 
 a particular class consisting of numerous individuals, or 
 where accounts between the parties should be first 
 settled. 
 
 § 243. In all of these cases, and many others which 
 might be mentioned, the Court will, befote pronouncing 
 its final decree, direct enqiiiries before the master or 
 commissioner ; and the order directing these enquiries 
 is termed an interlocutory decree, or, as some writers 
 express it, a decretal order. 
 
 § 244. Beside the decrees mentioned in the foregoing 
 sections, there are decrees in the English courts which 
 are termed decrees nisi, or conditional decrees. These 
 are prepared by the party seeking them, and being 
 entered up in the absence of the defendant, (though he 
 has been served with a sttbpoena to hear judgment,) 
 and without the action of the court, the plaintiff is not 
 entitled to have such decrees made absolute, until the 
 defendant is served with a subpoena for that purpose, 
 and fails to appear at the time specified therein, and 
 shew cause against them,' We have in the Virginia 
 State Courts and in the United States Circuit Courts 
 no proceeding like this, which the defendant may claim 
 as a matter of right* after the cause is at issue. Before 
 
 s II. Dan. Ch. Pr. 645, 650. 
 
 * Tberft aro iti tbe Virginia State Courts instances of decrees some- 
 what like tlie decrees nisi mentioned in the text, as in the oa^e of infant 
 defendants, who are allowed a certain period after arriving at mature 
 years to appear^and contest the propriety of any decree which may have 
 been entered. See Code of Virginia, chap.l7S, sec. 7. And so, too, in 
 the Virginia State Courts, when one proceeds against absent or un- 
 known defendants, they are permitted, subsequent to decree, to have 
 the decree set aside for good cause shown, and to have any injustice in 
 the proceeding corrected. See Code of Virginia, chapter 170, sec. 13 ; 
 
DECREE. 115 
 
 the cause is at issue, however, in the Virginia State 
 Courts, at the rules held by the clerk there is entered 
 on default of the defendant's appearance a decree nisi, 
 which is simply an order that if the defendant fails to 
 appear at the next rules the bill will be taken for con- 
 fessed, and the matter decreed accordingly. 
 
 § 245. Decrees may be made in chancery causes in 
 favor of one defendant against another defendant ; but 
 this practice appears to be limited to cases in which the 
 plaintiflF is entitled to a decree against some one of the 
 defendants." 
 
 FORM OF DECREES. 
 
 § 246, English writers make the following divisions in 
 the form of decrees: 1, the date and title; 2, the 
 recitals ; 3, the ordering part ; to which may be added, 
 4, the declaratory part, which, when made use of, 
 generally precedes the ordering part. 
 
 1. Date and title. 
 
 §247. The decree commences in England with a 
 recital of the day of the month and year when it was 
 
 and, in other cases, defendants are sometimes required to do particular 
 acts, as for instance, to pay motiey into court or to deliver uj) the posses- 
 sion of certain prelnises, noless they show cause against it by a day 
 appointed. These last are termed "rules," and are distinguished from the 
 " decrees nisi,'* mentioned iu the text, by the toct that they are the act of 
 the court and pass under ita supervision before entry. 
 
 •0 See Huhhard v. GooAwin, Z tieigh 522, in which Judge Tucker said, 
 " I am clearly of opinion that the court ought not to undertake to adjust 
 the transactions between Hubbard and Kennedy. None of the cases in 
 which the Court has decreed between defendants have gone so far. I 
 think it has been done in no case where the plaintiff was not entitled to 
 a decree against both or either. The practice should not be extended 
 further." 
 
116 SUIT IN EQUITY. 
 
 pronounced, and of the names of ijae several parties to 
 the cause.", In tlie United States Circuit Courts, and 
 in the Virginia State Courts, decrees or orders are 
 entered at large on the record book by the clerk, all 
 the entries of one day arranged under one /general 
 heading, and the names of the parties, plaintiff and 
 defendant, preceding each decree or order. 
 
 2. Recitals. 
 
 §248. Formerly, says Daniell, treating of practice 
 in English Courts, decrees contained recitals of the 
 pleadings in the cause, which were introduced by the 
 
 words, "This cause coming on the instant, and 
 
 also on this present day, to be heard and debated 
 before the Eight Honorable, &c., in the presence of 
 counsel learned on both sides, the substance of the 
 plaintiff's bill appeared to be, &c. [then followed a 
 recital of material parts of plaintiff's bill] ; therefore, 
 that the defendants, &c. [reciting the prayer,] and to 
 be relieved in the scope of the plaintiff's bill ; whereto 
 the counsel for the defendants alleged that they, by 
 their answer, &c. [then followed a recital of the de- 
 fence set up by the answer].; Whereupon, &c." Many 
 attempts have been recently made by the Judges of 
 the Court of Chancery in England to shorten the 
 length of decrees occasioned by the introduction of 
 these recitals, and by the latest of the general orders 
 which have been promulgated with that view, it is di- 
 rected that in original decrees and orders made on the 
 hearing of causes, the recitals, previous to the exhibits 
 read, shall be the substance and scope only of the 
 
 11 II. Dan. Ch. Pr. 654. 
 
DECREE. , 117 
 
 pleadings, tending to the point in controversy, upon 
 which the decree is founded, and be naade in a most 
 concise manner, and not to contain any recitals imma- 
 terial to the issue. '^ 
 
 § 249. In the United States Circuit Courts, by the 
 86th rule of the United States Supreme Court, in draw- 
 ing up decrees and orders, neither the bill nor answer, 
 nor other pleadings, nor any part thereof, nor the 
 report of any master, nor any other prior proceeding, 
 should be recited or stated in the decree or order, but 
 the decree or order should begin in substance as 
 follows : " This cause came on to be heard [or, to be 
 further heard, as the case may be,] at this term, and 
 was argued by counsel ; and thereupon, upon conside- 
 ration thereof, it was ordered, adjudged and decreed as 
 follows, viz : [here insert the decree or order.]" 
 
 § 250. In the Virginia State Courts, whein a decree 
 or decretal order at the hearing is first entered in a 
 cause, it is usual in this part of the decree or order, to 
 recite the manner in which the cause has been matured, 
 with the statement that the cause has been argued by 
 counsel, &c.* Thus, in case there be in the cause an 
 answer of one defendant, with a replication, and as to 
 another defendant the bill has been taken for confessed, 
 exhibits and depositions being filed, the recital would be 
 as follows : " This cause came on this day to be heard 
 
 '2 II. Dan. Oh. Pr, 664. 
 
 *' The omission to state on the face of decree how cause was matured 
 will not be error. Qtiarrier v. Carter's representatives, 4 H. & M. 242. 
 But where the decree stated that '* a cause came on to be heard upon the 
 bill, answer and exhibits," and the answer denied the statements of the 
 bill, the appellate court disregarded the depositions which had been filed, 
 (no mention having been made of them in the decree,) reversed the decree, 
 and dismissed the bill. Shumate v. Dunbar, 6 Munf. 430. 
 
118 SUIT IN EQUITY. 
 
 on the bill taken for confessed as to the defendant 
 C. D., and on the answer of the defendant E. F., with 
 general replication thereto by the plaintiff, exhibits and 
 examinations of witnesses, and was argued by counsel. 
 On consideration whereof, the Court doth adjudge, 
 order and decree, &c."*:^-when the cause has been 
 heard before, as follows: "This. cause came on this day 
 to be again heard on -the papers formerly read, and on, 
 &c. [if new bills or answers, replications, &c., specify 
 them,} and was argued by counsel. On consideration 
 whereof, &c." 
 
 3. Ordering part. 
 
 § 251. The ordering or mandatory part of the decree 
 contains the specific directions of the Court upon the 
 matter before it. These directions must, it is obvious, 
 depend upon the nature of the particular case, which is 
 the subject of the decree.^^ It is usual, in the English 
 Courts, when the decree is merely interlocutory, and 
 directs an issue or a case at law or an inquiry to be 
 made or account to be taken by a master, that it should 
 contain a reservation of the further matters to be de- 
 cided, and, generally, also a reservation of the question 
 of costs of the suit, till after the event of the issue or 
 case, or of the enquiry or account, shall be known." 
 These reservations seem not to be necessary, and are 
 not usually inserted either in decrees of the United 
 States Circuit Courts or of the Virginia State Courts. 
 
 * See In Appendix to this volume other forma of recitals of decrees in 
 particular cases. 
 
 •3 II. Dan. Ch. Pr. 667. 
 
 '■i II. Dan. Ch. Pr. 668. See sec. ?40 ante. 
 
DECREE. 
 
 119 
 
 4. Declaratory part. 
 
 § 252. Where the suit seeks a declaration of the 
 rights of the parties, the ordering part of the decree 
 should be prefaced by such a declaration. This, how- 
 ever, is not absolutely necessary, and the omission of it 
 will not invalidate the decree.^" 
 
 § 253, Forms of decrees and decretal orders as used 
 in the United States Circuit Courts and in the Virginia 
 State Courts, may be found in the Appendix to this 
 volume. 
 
 ENTERING DECREES. 
 
 § 254. In the English -Courts, when a final decree is 
 pronounced by the Court, the minutes of it are taken 
 down by the registrar, and are frequently read over by 
 him in the presence of the parties concerned or of their 
 counsel and solicitors.'^ Subsequently, the decree is 
 drawn up by the registrar, and is passed and entered 
 up. Till this last step is taken, the decree is only 
 inchoate.'^ But even after this proceeding, until the 
 decree is enrolled, it does not strictly become a record 
 of the Court, and is not considered of a sufficiently 
 permanent nature to entitle it in other Courts to the 
 same attention that is paid by one Court of record to 
 the records of other Courts of the same nature.'^ 
 
 §255. The process of "enrolling" is as follows: 
 the clerk in court draws up the form of the decree for 
 enrolment, reciting therein all the pleadings, orders and 
 material proceedings in the cause. These being put 
 
 •5 II. Dan. Ch. Pr. 668. lo Ibid. " Ibid. is Ibid. 674. 
 
120 SUIT IN EQUJTT. 
 
 into the proper form, language and order, are copied at 
 large upon paper, and the paper upon which the enrol- 
 ment is so made is called the docket." This docket is 
 then signed ; if the decree is pronounced by the Lord 
 Chancellor, the Lord Chancellor alone signs it, if by the 
 Master of the Rolls or the Vice-Chancellor that Judge 
 first signs it, and after that the Lord Chancellor." The 
 docket properly signed, the day and year of the signa- 
 ture are ivritten at the foot, near the signature of the 
 Lord Chancellor, after-which the clerk in court enroll- 
 ing the decree engrosses an exact copy thereof upon 
 parchment rolls, and carefully examines them with the 
 docket, which, together with the parchment rolls, is 
 carried by the clerk in court into the record room of 
 the Six Clerks' Office, and deposited with the record 
 keeper for safe custody. The enrolment is then com- 
 plete, and a decree thus enrolled is pleadable, and 
 cannot be reversed but by appeal or by bill of 
 review.^ 
 
 § 256. In the Virginia State Courts, as well as in 
 the United States Circuit Courts, the manner of enter- 
 ing of record decrees is much simpler than that just 
 detailed as the practice in England. The clerks of 
 these courts, being the keepers of the records, enter in 
 order books prepared for the purpose, all decrees which 
 the Court pronounces. These are read in the hearing 
 of the Court, and are signed by the Judge pronouncing 
 
 19 II. Dan. Oh. Pr. 680. 
 
 20 Ibid. 681. A caveat ia sometimes entered against the enrolling of a 
 decree. See the practice in this regard fully set forth in II. Dan. Ch. Pr. 
 682, et seq. 
 
DECREE. 121 
 
 t 
 
 them, or, if the Court be Composed of iliofe than one 
 judge or, justice^ by the presiding judge or justice.* 
 
 WHBJSr , AND HOTV DBCREES MAT BE OOREBCTBD. 
 
 § 2§7. , Virginia State . Courts. — In these ; Courts,, 
 though . jieorees be 5nal in, their character, they are 
 within the control of the Cp,urt during the term at 
 which they may have been pronounced or entered, and 
 during that term they may be set aside, or altered, or 
 amended, in such form and manner as the Court shall 
 deeni fit ; but after the term has closed, the Court has 
 no further, power over dec;rees fiinal in their character, 
 and such then can only be altered on a bill of review, 
 or by an appeal to ahigher Court, unless such decrees 
 come within the operation of the statute cited in the 
 following section. 
 
 § 258. The Code of Virginia has made provision for 
 the correction of errors, in certain cases, in judgments 
 and decrees by the Court which pronounced them, or 
 by a Judge, thereof in vacation. The terms of this 
 statute are as follows : 
 
 (1.) "For any clerical error, or error in fact, for 
 which a judgment or decree may be reversed or cor- 
 rected on writ of error coram .kohisy the same may be 
 reversed or corrected, on motion after reasonable 
 
 * By chap.l6l, sec. 5. Code of Virginia, " the proceedings of every court 
 shall be entered in a book and ;read in open coi^rt by the clerk thereof. 
 In a county or corporation court, the minutes of such proceedings 8haIl,I>e 
 i^ad evei-y day the court sits, immediately before its adjourniSienit. In 
 every other coui:t, the proceedings of each day shall be drawn up at large 
 and read the next day; except those of the last day of a term, which shall 
 be drawn up and read the same day. After being corrected where neces- 
 sary, the record shall bo signed by the presiding judge or justice." The 
 latter practice prevails in the United States Circuit Courts. 
 11 
 
122 SUIT IN EQUITY. 
 
 notice, by the Court, or if the judgment, or decree be in 
 a Circuit Court, by the Judge , thereof ■ in vacation." %- 
 
 (2.) "No judgment, or decree shall be stayed or re- 
 versed for the appearance of either party,, being^ under 
 the age of twenty-one years, by attorney, if the verdict 
 (where there is one,) or the judgment ox <i6tti"ee,'1je for 
 him and not to his prejudice ; or' for Want Of warrant of 
 attorney ; or for the wJtnt of a sitniliter, or an^ mis- 
 joining of issue; or for any informality in the entry of 
 the judgment or decree by the clerk, or for the'omia'sion 
 of the name of d.ny juror, or because it may not appear 
 that the verdict; was rendered by' the number of jurors 
 required by law,' Or for any'deifect, imperfection or 
 omission in the pleadings, Whic'b could not be regarded 
 on demurrer, or for any other . defect, imperfection or 
 orbission, which ttight have been taken advantage of 
 on a demurrer or answer, biit was not so taken advan- 
 tage of." ^^ ' •■ 
 
 (3.) " Ko decree shall.be reversed for want of a repli- 
 cation to the answer, where the defendant haS' taken 
 depositions as if there had been a replication; noi: 
 shall a decree be reversed at the instance of a party 
 who has taken depositions, for an informality in the 
 proceedings, when it .appears that there was a full and 
 fair hearing upon the merits, and that substantial jus- 
 tice has been done." ^? . - • 
 
 . (4.) " The Court in which there is a judgment by 
 default, or a decree on a. bill taken for confessed, or the 
 Judge of said Court in th.e vacation thereof, may, on 
 motion, reverse such jiudgment or decree for any error 
 
 2i' Code of Virginia, chap. 181, sec. 1. 
 2^ Ibid. sec. 3. 
 23 Ibid. 660. 4. 
 
DECREE. 123 
 
 for which an appellate Court might reverse it, if the 
 following section was not enacted, and give such judg^ 
 ment or decree as ought to be given. And the Court 
 in which is rendered a judgment or decree in a cause 
 wherein there is in a declaration or pleading, or in the 
 record of the judgment or decree, any mistake, mis- 
 calculation, or misrecital of any name, sum, quantity, 
 or time, when the same is right in any part of the 
 record or proceedings, or when there is any verdict, 
 report of a commissioner, bond, or other writing, 
 whereby such judgment or decree may be safely 
 amended; or in which a judgment is rendered on a 
 forthcoming bond for a sum larger than by the execu- 
 tion or warrant of distress appears to be proper, or on 
 a verdict in an action for more, damages than are men- 
 tioned in the declaration; or in the vacation of the 
 Court in which any such judgment or decree is ren- 
 dered, the Judge thereof may, on the motion of any 
 party, amend such judgment or decree according to 
 the truth and justice of the case ; or in any such case 
 the party obtaining such judgment or decree may, in 
 the same Court, at any future term, by an entry of 
 record, or, in the vacation, by a writing signed by him, 
 attested by the clerk and filed among the papers of the 
 cause, release a part of the amount of his judgment or 
 decree ; and such release shall have the effect of an 
 amendment, and make the judgment or decree operate 
 only for what is not released. Every motion under 
 this chapter, shall be after reilsonable notice to the 
 opposite party, his agent or attorney, in fact ot at law, 
 and shall be within five years from the date, of the 
 judgment Jor^decree." ^* 
 
 2i Code of Virginia, chap. 181, sec. 5. 
 
124 SUIT IN EQUITY. 
 
 (5.) "No appeal, writ of error, or supersedeas, shall 
 be allowed by an appellate Court or Judge for any 
 matter for -wbicli a judgment or decree is liable to be 
 reversed . or amended, on motion as aforesaid, by tbe 
 Court wbicli rendered it, or tbe Judge thereof, until 
 such. motion be made and overruled in whole or in part. 
 And when an appellate Court hears a case wherein an 
 appeal, writ of error or supersedeas has been allowed, 
 if it appear that, either before or since the same was 
 allowed, the judgment or decree has been so amended, 
 the appellate Court shall affirm the judgment or decree, 
 unless there be other error; and if it appear that the 
 amendment ought to be and has not been made, the 
 appellate Court may make such amendment, and affirm 
 in like manner the judgment or decree, unless there be 
 other error." ^^ 
 
 § 259. United States Circuit Courts. — Clerical mis- 
 takes in decrees or decretal orders, or errors arising 
 from any accidental slip or omission, may, in the United 
 States Circuit Courts, at any time before an actual 
 enrolment thereof, be corrected by order of the Court 
 or a Judge thereof, upon petition, without the form or 
 expense of a re-hearing.^° 
 
 § 260. All decrees in the Courts of the United States 
 are deemed to be enrolled at the term in which they 
 were passed.^' After the expiration of the term at 
 which they are enrolled, these decrees, if final, are to 
 stand without alteration or amendment, and if an ap- 
 peal thereon lies to the Supreme Court, may only be 
 sc't aside or amended upon proceeding by a bill of 
 
 25 Code of Virginia, chap. 181, sec. 6. 
 
 26 LXXXV. Rule Supremo Court U. S. 
 
 27 See Dexter v, Arnold, 5 Mason's C. C. K, 
 
DECREE. 125 
 
 review or by an appeal. In causes in which no appeal 
 lies from such decrees, a petition for a re-hearing may, 
 in the discretion of the Court, be admitted at any time 
 before the end of the next term of the Court succeed- 
 ing such enrolment. This petition should, contain the 
 special matter or cause on which such re-hearing is 
 applied for, should be signed by counsel, and the facts 
 therein stated, if not apjjarent on the record, should 
 be verified by the oath of the party or by some other 
 person.^^ 
 
 WHEN RE-HEARING MAT BE HAD. 
 
 §. 261. Infant defendants in the Virginia State Courts 
 are permitted to show cause against any decree, within 
 six months after attaining the age of twenty-one 
 years ;^' and in these Courts, when a decree or order is 
 made in a cause, in which ^here is an unknown party or 
 other defendant who has not been served with process 
 and did npt appear in the case before such decree or 
 order, the unknown party or other defendant, or the 
 representative of any such,, may, within fiv^ years from 
 the date of the dfecree or order, if he be not served 
 with a copy of such decree or order more than a year 
 before the end of said five years, and if so served, then 
 within one year from the time of such service, petition 
 to have the cause re-heard, and may plead or answer, 
 atid have any injustice in the proceedings arrested.*' 
 As we have seen, in section 260, there are certain cases 
 in which decrees in the Circuit Courts of the United 
 States may be corrected on petitioii for a re-hearing. 
 
 28 See LXXXVIII. Rule Supreme Court U. S. 
 
 29 Code of Yir^Jiia, chap: 178, sec. 7. ^ Ibid. ehap. 170, sec. 13. 
 
l26 SUIT IN BftUITY. 
 
 CHAPTER Till. 
 
 , TrNIT-BD. STATES; CIRCUIT COT/KTS.. 
 
 § 262. In previous , chapters, flie practice of th&se 
 Courts. has been treated of, but further sections" should 
 be devoted to the -mor^ partieular • consideration of this 
 subject. 
 
 §'26S.' The rales are held in these Gburts on the JBrst 
 Monday in evefy month, when the clert is required to 
 be in attendance at his office for the purpose of re- 
 ceiving, enteringj entertaining, and disposing of all 
 motions; orders, and other proceedings, -which are 
 gran table of bourse, and applied for or had by the 
 parties or their . Solicitors in all causes pending in 
 Equity.^ ''.',''',' 
 
 §'264. Bills, answers and other pleadings may be 
 filed at ai^y tinie, whether at' rules or otherwise; the 
 Circuit Courts, as Courts of Equity, bejng deemed 
 always open for this purpose, and for the purpose of 
 issuing and retiirriing mesne and final process and com- 
 missions, and for making and directing all interlocutory 
 motions, orders, rules, and. Other procfeedings, prepara- 
 tory to the hearing of all causes upon their merits.^ 
 
 § 265. As was stated in the 92d section, the filing of 
 the bill is uniformly the first step taken in Equity 
 
 1 II. Rule Supcems Qourt U. S. ^ !■ R^le .Supreme Coqrt .U. 6. 
 
UNITED STATES CIRCUIT COURTS. 127 
 
 causes in th.es.e Caurts.^ Upon the filing of the bill, 
 the clerk issues a subpoena, commanding the defendants 
 therein named, by. a day specified, to appear and 
 answer the bill. This process should be made return- 
 able to the next rule day, or the next rule day but one, 
 at the election of the plaintifi", occurring after twenty 
 days from .the time of the issue thereof.* 
 
 § 2^6. This subpoena, as well as other process issuing 
 from these Courts, is Served by the United States 
 Marshal or his deputy, or by some other person spe- 
 cially appointed by the Court for that purpose, and not 
 otherwise ; when served by a person specially appointed 
 for the purpose, an affidavit of the service is necessary.* 
 
 §267. Subpoenas may be sued out separately for 
 each defendant, save in the case of husband and wife, 
 defendants; or a joint subpoena may]; be sued out 
 against all the defendants.^ 
 
 §268. At the 'bottom of the subpoena should be 
 placed a . niemorandum that the defendant is to enter 
 his appearance ' in the suit in the clerk's . office, on or 
 before the day at which, the writ is returnable ; other- 
 wise, the bill may be taken pro confesso.^ ' 
 
 ,§269. Subpoenas are served by. a delivery of a copy 
 thereof by the officer serving the same to the defendant 
 personally, or in case of husband and wife, to the. hus- 
 band personally^ or by leaving a copy thereof at the 
 dwelling house or usual place of abode of each defen- 
 
 3 XI. Rule Snprl9me Court' U. S. 
 i X'll. Rale Supreme Conrt U. S. 
 6 XV. Rule Supreme Court U. S. 
 6 XII. Rule Supreme Court U. S. 
 
128 SUIT IN EQUITY, 
 
 dant, with some ftee white person who is a member or 
 resident in the family/ 
 
 § 270. Upon the return of the subpoena as served 
 and executed upon aiiy defendant, the clerk will enter 
 the suit upon his docket as pending in the Court, and 
 will state the time of the entry.* 
 
 § 271. If the defendant has been served with the sub- 
 pCenA twenty days before the rule day to which it was 
 made returnable^r te should enter his appearance on the 
 return day; if the subpoena has not been served on 
 him twenty days before that time, his appearance 
 should be entered at the next rule day succeeding the 
 fiile day when the process is retumablew" He may 
 appear either perspnally or by his solicitors, and his 
 appearance will be noted by the clerk in his order 
 book.!" '■ , , 
 
 §272. Unless the time be enlarged for good cause 
 shown, by a Judge of the Court, upon motion for the 
 purpose, the defendant will be required to file his plea, 
 demurrer, or answer to the bill, in the clerk's office, on 
 the rule day next succeeding that of entering his ap- 
 pearance ; in default whereof the plaintiff may, at his 
 election, enter an order (as of course) in the order 
 book, that the bill be taken prd ddnfessa; or the plain- 
 tiff, if he requires any discovery or answer tO enable 
 him to obtain a Jiroper decree, will le entitled to pro- 
 cess of d,ttactment against the defendant to compel an 
 answer.^* 
 
 I XIII. Rule Supreme Court U. S. See ante, note 3 to sec. 3. 
 
 8 XVI. Rule Supreme Court U. S. 
 
 9 XVII. Rule Supreme Court U. S. 
 
 10 Ibid. 
 
 II XVIII. Rule Supreme Court U. S. See ante see. 82, et >eq., on 
 " Process of Contempt." 
 
UNITED STATES CIRCUIT COURTS. 129 
 
 § 273. When the hill is taken for confessed, the 
 cause will he proceeded in ex parte, and the matter of 
 the hill may be decreed hy the Court at its next term, 
 if the same can he done without an answer and is 
 proper to he decreed;'^ and after decree upon bill 
 taken for confessed, such decree will he deemed abso- 
 lute unless the Court shall at the same term set it aside 
 or enlarge the time for filing the answer upon cause 
 shown upon motion and affidavit of the defendant.^* 
 
 § 274. If the process of attachment he resorted to 
 to compel an answer of the defendant, and he he arrest- 
 ed thereunder, he will not be discharged unless upon 
 filing his answer or otherwise complying with such order 
 as the Court or a Judge thereof may direct, as to plead- 
 ing to or fully answering the hill, within a period to he 
 fixed hy the Court or Judge, and undertaking to speed 
 the cause ;^* in other cases when his appearance has not 
 been compelled hy process of attachment, he may either 
 plead, demur to, or answer the bill at rules. 
 
 § 275. Guardians ad litem to defend a suit may be 
 appointed by the Court or a Judge thereof, for infants 
 or other persons who are under guardianship, or other- 
 wise incapable to sue for themselves ; all infants and 
 other persons so incapable may sue by their guardians, 
 if any, or by their prochein ami, subject, however, to 
 such orders as the court may dkect for the protection 
 of infants and other persons.^' 
 
 12 XVIII. Rule Supreme Court U. S. '3 XIX. Rule. TMs mo- 
 
 tion wUl not be granted, unless upon the payment of the costs of the plain- 
 tiff in the suit up to that time, or such part thereof as the Court shall deem 
 reasonable, and unless the defendent shall undertake to file his answer 
 within such time as the Court may direct, and submit to such other terms 
 as the Court may direct, for the purpose of speeding the cause. 
 
 " XVIII. Rule Supreme Court U. S. '^ LXSXVIL Rule. 
 
180 SUIT IN EQUITY. 
 
 § 276. A demurrer or plea is not allowed to be filed, 
 unless upon a certificate of counsel that in his opinion, 
 it is -well founded in point of law, and supported by the 
 affidavit of the defendant^^ that it is not interposed for 
 delay ; and, if a plea, that it is true in point of fact." 
 See preceding fourth chapter as to other matters con- 
 cerning pleas and demurrers in these Courts, and 
 Appendix. 
 
 § 277. Answers are put in under oath or affirma- 
 tion.^* A defendant was formerly not bound to answer 
 any statement or charge in the bill unless specially and 
 particularly interrogated thereto, nor to answer any in- 
 terrogatory in the bill except such as he was specially 
 required to answer ; and where a defendant answered 
 any statement or charge in the bill, to which he was 
 not interrogated, only by stating his ignorance of the 
 matter so stated or charged, his answer was deemed im- 
 pertinent ;" but by a subsequent rule of the Supreme 
 Court of the United States these provisions were re- 
 pealed and it is not now necessary to interrogate a de- 
 fendant specially and particularly upon any statement 
 in the bill unless the complainant desires to do so to 
 obtain a discovery.^" 
 
 § 278. A defendant is at liberty, by answer, to de- 
 cline answering any interrogatory or part of an inter- 
 rogatory, from answering which he might have protected 
 himself by demurrer ; and he will be at liberty so to 
 decline, notwithstanding he answers other parts of the 
 bill from which he might have protected himself by 
 demurrer.^^ See preceding fourth chapter as to other 
 matters concerning answers, and Appendix. 
 
 16 XXXI. Kule Supreme Court U. S. n Hid. 
 
 '8 See sec. 153 ante, also XXXIX. and XCI. Rules Supreme Court U. S. 
 13 XL. Rule. 20 XCII. Rule. 21 XLIV. Rule. 
 
UNITED STATES CIRCUIT COURTS. 131 
 
 §279. As to replication to answers, see 183, 184, 
 sections, ante, also 56th rule of United States Supreme 
 Court, found in Appendix. 
 
 § 280. As to exceptions to answers, see 186, 187, 
 188, 189, 190, 191, sections, ante, also, 61st, 62d, 63d, 
 64tli and 65th rules of the United States Supreme 
 Court, printed in the Appendix to this volume. 
 
 § 281. As to testimony in these Courts, see preceding 
 sixth chapter, also Rules -of United States Supreme 
 Court, printed in Appendix. If depositions be taken 
 in the mode prescribed by the 67th rule of the United 
 States Supreme Court, the concluding interrogatory 
 should be as follows : " Do you know, or can you set 
 forth, any other matter or thing, which may be a 
 benefit or advantage to the parties at issue in this 
 cause, or either of them, or that is material to the sub- 
 ject of this your examination, or the matters in ques- 
 tion in this cause ? If yea, set forth the same fully 
 and at large in your answer." See LXXI. Rule of 
 United States- Supreme Court. 
 
 § 282. See preceding seventh chapter on hearing 
 and decree ; also Rules of United States Supreme 
 Court, printed in Appendix. And see next Book for 
 proceedings in these Courts subsequent to decree. 
 
SUIT m EQUITY. 
 
 BOOK II. 
 
 CHAPTER I. 
 
 APPEALS. 
 
 §283. If a rehearing of a final decree may not be 
 had, as we have seen, after the expiration of the term 
 at which it was entered, the decree must stand without 
 alteration or amendment, unless Set aside or amended 
 upon proceeding by a bill of review or by an appeal. 
 Of bills of review we shall treat in a subsequent 
 chapter ; this chapter will be devoted to the considera- 
 tion of appeals. 
 
 Appellate Jurisdiction. 
 
 §284. United States Courts.^ — ^Appellate jurisdic- 
 tion in the Federal Courts, when final decrees have 
 been rendered by the United States Circuit Courts, is 
 vested in the United States Supreme Court. That 
 court may entertain jurisdiction in the appellate form 
 in all cases arising under the consti-tution, laws and 
 treaties of the Union. In suits in equity, where the 
 matter in dispute, exclusive of costs, exceeds the sum 
 12 
 
134 SUIT IN EQUITY. 
 
 of two thousand dollars, appeals may be taken to that 
 court from all final decrees rendered by the United 
 States Circuit Courts.^ So, in all causes affecting 
 patents or copyrights appeals are given to the Su- 
 preme Court of the United States from decisions in the 
 Circuit Court.^ An appeal also lies to the Supreme 
 Court of the United States from a final decree of the 
 highest Court of Equity of a State in which a decision 
 in the suit could be had, when in such suit is drawn in 
 question the validity of a treaty or statute of, or an 
 authority exercised under, the United States, and the 
 decision is against their validity ; or when, in such suit, 
 is drawn in question the validity of a statute of, or an 
 authority exercised under, any State, on the ground of 
 their being repugnant ' to the Constitution, treaties or 
 laws of the United States, and the decision is in favor 
 of such their validity ; or when, in such suit, is drawn 
 in question the construction of any clause of the Con- 
 stitution, or of a treaty or statute of, or fcommission 
 held under, the United States, and the 'decision is 
 against the title, right, privilege ,or exemption, spe- 
 cially set up or claimed by either party, under such 
 clause of the said constitution, treaty, statute, or 
 commission.^ 
 
 § 285. Virginia State Courts.— Appellate jurisdic- 
 tion is exercised in Virginia by the Supreme Court of 
 Appeals, by' Special Courts of Appeals, by the District 
 Courts, by the Circuit Courts, and by the County or 
 
 ' Acts of Congress, 1803, chap. 93, sec. 2; Story's Laws U. S., vol. II. 
 p. 905. 
 
 2 Acts of 1819, chap. 143 ; Story's Laws U. S , vol. III. p. 1719. 
 
 3 Acts of 1789, chap. 20, sec. 25; Story's Laws U. S., vol, I. p. 61. 
 
APPEALS. 135 
 
 Corporation Courts. Of the last named, it is unneces- 
 sary to say more than this: — they entertain appeals 
 from all decisions of single magistrates ; and from de- 
 cisions which they pronounce on such appeals there 
 is no appeal to a higher tribunal.* 
 
 § 286. Supreme Qo'wrt of Appeals. — By the 11th 
 section of the sixth article of the Constitution of Vir- 
 ginia it is declared that this Court "shall have 
 appellate jurisdiction only, except in cases of habeas 
 corpus, mandamus, and prohibition. It shall not have 
 jurisdiction in civil causes -where the matter in contro- 
 versy, exclusive of costs,, is less in value or amount 
 than five hundred dollars, except] in controversies con- 
 cerning the title or boundaries of land, the probat 
 of a will, the appointment or qualification of a per- 
 sonal represent^/tive, guardian, committee or curator; 
 or concerning a mill, road, way, ferry or landing, 
 or the right of a corporation or of a county to levy 
 tolls or taxes ; and except in cases of habeas corpus, 
 mandamus, and prohibition, and cases involving free- 
 dom or the constitutionality of a law." 
 
 By the 8th section of chapter 61, Session Acts of 
 1852, "Every appeal, writ of error or supersedeas 
 allowed to or from a judgment, decree or order of a 
 Circuit Court in a controversy concerning the right of 
 a corporation or of a county to levy tolls or taxes, or in 
 a case involving freedom or the constitutionality of 
 a law, shall be docketed in the Supreme Court of 
 Appeals." 
 
 4 Code of Virginia, chap. 182, see. 3. Session Acta, 1862, chap. 61, 
 section 5. 
 
136 SUIT IN EQUITY. 
 
 By the 9th section of same chapter, " When there is 
 a petition for an appeal, writ of error or supersedeas to 
 or from a judgment, decree or order of a Circuit Court 
 in a case of mandamus, prohibition or habeas corpus, 
 or in a controversy concerning the title or boundaries 
 of land, or concerning the probat of a will, or concern- 
 ing a mill, road, way, ferry or landing, or concerning 
 the appointment or qualification of a personal represen- 
 tative, guardian, committee or curator, or in any civil 
 cause where the matter in controversy, exclusive of 
 costs, is not less in value or amount than five hundred 
 dollars, and not embraced by the sixth and eighth sec- 
 tions of this act, the counsel or attorney to certify as 
 to the propriety of reviewing the decision, may be 
 counsel or attorney either of the Supreme Court of 
 Appeals or a District Court, and the petition may be 
 presented to a Judge of a District Court, or to the 
 Supreme Court of Appeals, or a Judge thereof." 
 
 By the 10th section of same chapter, " If on a peti- 
 tion in any case mentioned in the preceding section, 
 the appeal, writ of error or supersedeas be allowed by 
 the Supreme Court of Appeals in term, the same shall 
 be docketed in said Court. And if on a petition in any 
 such case, the appeal, writ of error or supersedeas be 
 allowed by a Judge of said Court or of a District 
 Court, the same shall be docketed also in the Supreme 
 Court of Appeals, unless the appellant or plaintiff in 
 error ask it to be docketed in a District Court, in 
 which case it may, by order of said Judge, be docketed 
 in the District Court for the district constituted in part 
 of the, circuit wherein the judgment, decree or order 
 was made or rendered. But any case docketed under 
 this section in a District Court shall, on the application 
 
APPEALS. 137 
 
 of an appellee or defendant in error to such Court or a 
 Judge thereof, be transferred by order of such Court 
 or Judge to the Supreme Court of Appeals, provided 
 such application be made within ninety days after the 
 summons on the appeal, writ of error or supersedeas is 
 returned executed on such appellee or defendant in 
 error, and provided the application be also made before 
 the appeal, writ of error or supersedeas is heard in' the 
 District Court." 
 
 By the 11th section of the same chapter, " By con- 
 sent of the parties or their counsel, a pending cause 
 may be transferred from a District Court to another 
 District Court, or from the Supreme Court of Appeals 
 to a District Court, or from a District Court to the said 
 Supreme Court, except that there shaU not be trans- 
 ferred to the said Supreme Court any cause of which it 
 cannot have jurisdiction consistently with the eleventh 
 section of the sixth article of the Constitution." 
 
 By the 13th section of same chapter, " Every appeal, 
 writ of error or supersedeas allowed to or from a judg- 
 ment, decree or order of a District Court, shall be 
 docketed in the Supreme Court of Appeals." But it is 
 provided by the next preceding section, that "No 
 appeal, writ of error or supersedeas shall be allowed to 
 or from- a judgment, decree or order of a District Court 
 unless such judgment, decree or order be in a case of 
 habeas corpus, mandamus or prohibition, wherein said 
 Court has exercised original jurisdiction." 
 
 §287. Special Court of Appeals. — This Court is 
 formed for the purpose of trying cases remaining on 
 the docket of the Court of Appeals when the judges 
 ceased to hold their offices under the late Constitution, 
 and to try cases in respect to which a majority of the 
 
188 SUIT IN EQriTT. 
 
 Judges of the Supreme Court may be so situated as 
 to make it improper for them to sit on the hearing 
 thereof. See 17th chapter of Session Acts of 1853-4, 
 for provisions of statute concerning this Court. 
 
 § 288. District Courts.— These courts exercise appel- 
 late jurisdiction aloney save in the cases of habeas, 
 corpus, mandamus and prohibition, when they have 
 original jurisdiction also. 
 
 By the 6th section of chapter 61, Session Acts, 
 1852, " When an appeal, writ of error or supersedeas is 
 hereafter allowed to or from a judgment, decree or 
 order of a Circuit Court in a civil cause, of which the 
 Supreme Court of Appeals is prohibited from having 
 jurisdiction by the eleventh section of the sixth article 
 of the Constitution, such appeal, writ of error or super- 
 sedeas shall be docketed in the District Court for the 
 district constituted in part of the circuit wherein the 
 judgment, decree or order was made or rendered." 
 See 286th section' ante. 
 
 §289. .Circuit OouHs.— These courts exercise appel- 
 late jurisdiction, when there is an appeal from a judg- 
 ment, decree or order of a County or Corporation Court, 
 in a cause in which the Circuit Court might hi&ve exer- 
 cised original jurisdiction, and when jt is not fc a judg- 
 ment of a County or Corporation Court which is ren- 
 dered on an appeal from a judgment of a justice.' 
 
 § 290. These several Virginia State Courts exercise 
 appellate jurisdiction as follows : from decrees or orders 
 pronounced by the County or Corporation Courts, ap- 
 peals should be taken to the Circuit' Courts, and from 
 decrees or orders pronounced by the Circuit Courts 
 
 5 See Sess. Acts, 1862, chap. 61, sec. 5, and Code of Va., chap. 182, sec. 3. 
 
UNITED STATES COURTS — APPEALS. 139 
 
 appeals may be taken either to the Supreme Court of 
 Appeals or to the District Courts ; save in cases in 
 ■which these courts respectively have not jurisdiction, 
 when such appeals must be taken to that court having 
 jurisdiction in the case, (see section 286, ante;) from 
 decrees or orders by the District Courts, when pro- 
 nounced in a case of habeas corpus, mandamus or 
 prohibition, an ■ appeal lies to the Supreme Court of 
 Appeals, in other cases an appeal cannot be taken.^ 
 
 S^ow appeal obtained, and proceedings on appeals. 
 
 § 291. United States Courts. — From final decrees 
 pronounced by the United States Circuit Courts, aa 
 appeal may be taken as of right to the Supreme Court 
 of the United States in the cases in which that Court 
 may entertain appellate jurisdiction ; ' the Circuit 
 Courts, however, prescribe the penalty of the bond 
 which the party appealing is to execute.* Five years 
 is the limit prescribed by Act of Congress in which 
 appeals may be taken from decrees pronounced by 
 these courts, with a reservation of the like period to 
 infants, femes covert, persons non compos mentis or 
 imprisoned, after their disability has been removed.^ 
 It is deemed unnecessary here to speak further of the 
 practice on appeals from decrees of the United States 
 Circuit Courts. 
 
 §292. Virginia State Courts. — In these Courts, 
 save in special cases provided by statute, (see Code of 
 Virginia, chap. 182, seel,) appeals may not be taken 
 as a matter of right from decrees or orders; and, on 
 
 6 Seas. Acts, 18S2, chap. 61, sec. 12. ' See 284 aoction, ante. 
 
 8 Acts of Congrem, 1789, chap. 20, sec. 22. 
 
 * This hond is conditioned for the payment of all loss and damage 
 which any party may sustain by reason of the appeal. 
 
140 , SUIT IN EQUITY. 
 
 the other hand, the right of appeal is not restricted to 
 final decrees, as in the United States Courts. 
 
 §293. To procure an appeal in ordinary cases, a 
 party must present his petition to the appellate court 
 or a judge thereof, withthe transcript of the record, or 
 so much thereof as may be necessary to enable the court 
 or judge to determine the matter properly, and in order 
 that he may not meamvhile be injured or put to in- 
 convenience by the attempt of the opposite party to 
 enforce the decree or order, before the transcript has 
 been prepared and the petition is presented, the Vir- 
 ginia statute has provided, that " if a party desire to 
 present a petition for an appeal, at his instance, the 
 court in which the decree or order is, during the term 
 at which it is rendered or made, or if it be in a Circuit 
 Court, any circuit judge may, within sixty days after 
 such term is ended, make an order suspending the exe- 
 cution of such decree or order, (for a reasonable time 
 to be specified in such order) ;" the party, however, 
 making this motion, will be required to give bond 
 before the clerk of said court in such penalty as the 
 court or judge may require, with a condition reciting 
 such decree or order, and his intention to present such 
 petition, and providing for the payment of all such 
 damages as any person may' sustain by reason of the 
 said suspension, in case a supersedeas to such decree or 
 order should not be allowed, and be effectual within the 
 time specified.' 
 
 s See Code of Virginia, chap. 182, sec. i. By Sess. Acts, 1852, chap. 
 62, sec. 1. " In a case in which it is lawful to present a petition for an 
 appeal from a writ of error or supersedeas to a judgment, decree or order 
 of a Dietriet Court, the said Court, or a Judge of a District Court, may 
 make such suspending order as a Circuit Court or Judge might make if 
 the judgment, decree or order were in a Circuit Court." 
 
VIRGINIA STATE COtJRTS^APPEALS. 141 
 
 § 294. When petition may he presented. — A party 
 to any suit in equity, wherein there is a decree or order 
 dissolving an injunction or requiring money to be paid, 
 or the possession or title of property to be changed, or 
 adjudicating the principles of the cause, or a party to 
 any case wherein there is a final decree or order, may 
 present a petition for an appeal from the decree or 
 order,'" save in these cases : 1, where it is an appeal 
 from a judgment of a County or Corporation Court, 
 rendered on an appeal from a judgment of a justice ; 
 2, when the appeal is from a decree or order of a court 
 other than a County or Corporation Court, and the 
 matter in controversy is less in value and amount than 
 one* hundred dollars, exclusive of costs, and there be 
 not drawn in question a freehold or franchise, or the 
 title or bounds of land, or some matter not merely 
 pecuniary ; and, 3, when the appeal is from a final de- 
 cree or order (whether the commonwealth be a party or 
 not) which has been rendered more than five years 
 before the petition is presented.^' 
 
 § 295. Matter and form of petition. — The petition 
 should set forth the errors or grievances complained of 
 in the decree or order from which the appeal is taken. 
 The statute requires that it shall be accompanied by a 
 transcript of the record of so much of the case wherein 
 the decree or order is, as will enable the court or judge 
 to whom the petition is to be presented properly to 
 decide on the petition, and enable the court, if the 
 
 10 Code of Virginia, chap. 182, sec. 2. 
 
 * See Code of Virginia, cliap. 182, sec. 5, and Sess. Acts, 1852, chap. 61, 
 sec. 5. , 
 
 n See ibid. 
 
142 £TjiT In equity. 
 
 petition be graiited, properly to decide the questions 
 that may arise before it ;'^ and it is further provided by 
 statute that the petition shall not be presented " until 
 some counsel or attorney of the appellate court shall 
 certify that in his opinion it is proper that the decision 
 should be reviewed by such court,^^ 
 
 § 296. The petition usually contains a brief synopsis 
 of the facts of the case, and points out the supposed 
 errors or grievances in the decree or order of the court. 
 The foUomng is the form of a petition presented 
 to the Court of Appeals : 
 
 To the Honoraf)le the Jy,dges, of the Court of A'pfeaih. 
 
 The petition of W. N. humbly showeth, that in a 
 suit in Chancery, pending in the Circuit Court for the 
 county of W., in -which the executors of T. R. deceased, 
 are plaintiffs, and your petitioner, with others, are de- 
 fendants, two interlocutory decrees have been pro- 
 nounced, the first on the 15th of April, 18 — , affirming 
 the plaintiff's title to recover of your petitioner a large 
 sum of money and directing an account of the amount ; 
 the second on the 14th of October, 18 — , affirming the 
 plaintiff's title to recover of your petitioner the sum of 
 % 8096 63, with interest on part thereof, and appoint- 
 ing commissioners to sell for the payment thereof a 
 certain tract of land in the proceedings mentioned ; as 
 will more fully appear by reference to the transcript of 
 the record herewith submitted. 
 
 The following is the outline of the case in which 
 these decrees have been rendered : 
 
 In the year 18 — , a few months after your petitioner 
 had attained his full age, (he being twenty-one years 
 old on the 4th December, 18 — ,) and immediately after 
 he had returned from college, when he was entirely in- 
 
 '2 See Code of Virginia, chap. 1S2, sec. 5. 
 '3 Ibid. sec. 8. 
 
VIRGINIA STATE COURTS. — APPEALS. 143 
 
 experienced in the business aifaii-s of tte world, he was 
 induced by the said T. R. to enter ihto a contract with 
 him for th^ purchase of a tract of between 800 and 900 
 acres of land in the county of W., called Cabin Point, 
 at the price of $15 per acre, amounting in the whole to 
 the sum of $13,046 53, to be paid for in the 'following 
 manner, viz : $2,500 part thereof to be paid in cash in 
 the course of a short time, to meet debts due from the 
 said R., and the balance of the purchase money, viz : 
 $10,546 53 to be paid shortly after the said T. R. 
 should be married, if that event should ever happen, 
 and in the meantime during the life of the said T. R., 
 or until he should be married, your petitioner was to 
 pay him an annuity equal to the interest upon the 
 balance of the purchase money, viz: an annuity of 
 $632 79. R. accordingly executed a deed to your pe- 
 titioner for the land, bearing date the 29th,' October, 
 18 — , which is the defendant's exhibit "A," p. 67 of 
 the record; and on the 11th November, 18 — , your 
 petitioner executed a deed of trust conveying the land 
 to W. F. T. and R. M., to secure the payment of the 
 aforesaid annuity of $ 632 79, and of the balance of 
 the purchase money aforesaid, which seems to be set 
 down by mistake in that deed as $10,556 53, instead 
 of $10,546 53 ; a copy of which deed is exhibited with 
 the plaintiff's bill, and is found at p. 3 of the record. 
 Before the date of this deed your petitioner had made 
 the cash payment of $2,500 to meet the debts of the 
 said R. 
 
 The nominal price of $13,046 53 was at least double 
 the fair value of the land in the market, which would 
 have been dearly fiurchased at the price of $7,000, or 
 at the price of $ 2,500, which your petitioner paid in 
 cash, and the annuity of $632 79, which he bound 
 ■himself, if he had not bound himself to pay any thing 
 further upon the marriage of the said R. ; for the land 
 was not worth more than $ 7,000 at the utmost, and 
 was not worth more than an annual rent of $250. 
 For the value of the land, see the depositions of Dr. 
 R. M., p.46, and J. J.^ p. 50. 
 
144 SUIT IN EQUITY. 
 
 Your petitioner, in his inexperience, was induced to 
 enter into the contract, such as it is, by the artifice and 
 fraud of the said T. R. At the time of this contract 
 the said R. was an old bachelor of the age of about 50 
 years. He was in good health, having the prospect of 
 a long life before him ; was of a proud and aristocratic 
 disposition, much addicted to literature ; was a distant 
 relative of your petitioner, had lived in the family of 
 your petitioner's father, professed much attachment to 
 his children and a disposition to make them heirs of 
 whatever property he might leave ; said he had been 
 disappointed in love, that the only woman in the world 
 that he would consent to marry had discarded him, and 
 that he never intended to marry, though he did not 
 wish to hold out to the world the idea that he did not 
 so intend to marry. In the course of the negotiation 
 for this iproperty, which your petitioner was reluctant 
 to purchase, and for which he certainly would not have 
 agreed to give the price of upwards of $13,000, the 
 said R. over and over again pressed upon him the ad- 
 vantageous character of the purchase, for which he said 
 your petitioner would have to pay no more than' the 
 $2,500 advanced and the annuity, assured your peti- 
 tioner that he never meant to marry, and that the pro- 
 vision, for further payment in case of marriage was 
 merely intended to save appearances, was worth no- 
 thing, was a mere nullity ; and by these declarations, 
 in which your petitioner was so credulous as to confide, 
 he wias ultimately induced to agree to the contract as 
 aforesaid. For these facts, your petitioner refers to 
 the first deposition of Dr. M., p. 46, his second depo- 
 sition, p. 73, and the deposition of J. T., p. 71. 
 
 But that theSe declarations of R. that he never in- 
 tended to marry were fraudulently made, is rendered 
 probable by the reputed courtships of the said R. 
 shortly after the contract aforesaid; as proved by the 
 first deposition of Dr. M. and the deposition of J. T. 
 
 He, however, lived unmarried for many years after 
 the contract, and continued to receive his annuities, 
 and more than the whole amount of his annuities, up to 
 
VIRGINIA STATE COURTS— APPEALS. 145 
 
 the year 18 — . Before that time he had become ex- 
 tremely infirm in health and a pauper, supported at the 
 expense of the overseers of the poor ; having exhausted 
 all the annuities which had fallen due to him from your 
 petitioner and become considerably indebted to him 
 beyond. He had lost all hope of ever being able to 
 induce any decent woman to marry him, and had re- 
 solved to marry any one, even the most abandoned, in 
 order to compel your petitioner to pay him the money 
 which by the contract had been made payable in the 
 event of his lawful marriage. To prove that he in- 
 tended to marry, not for the sake of the marriage, but 
 for the sake of getting money from your petitioner, see 
 the deposition of B. J., p. 54-5, and the deposition of 
 the plaintiff's witness, ,W. Y. S., p. 39, to whom T. R. 
 declared that for this purpose marry he would, at all 
 events ; even a negro. 
 
 He had become very wretched, and while he lived at 
 W. Courthouse, had attempted suicide. He was then 
 removed to be boarded in a private family, where he 
 had a severe attack of apoplexy, which terminated in 
 great debility, perhaps paralysis. He was then re- 
 moved to board at the house of the aforesaid B. J., 
 where, in the month of June, in the year 18 — , he had 
 a second fit, which terminated in a complete paralysis 
 of one side of the body, affecting his speech very much 
 and leaving him utterly impotent of body and very 
 seriously affected in his mind. It was in this state of 
 things that he declared to the said J. his determination 
 to marry any discreet girl, however poor she was, in 
 order that he might get his money. 
 
 This determination seems to have become known in 
 the neighborhood, and shortly afterwards a poor girl, 
 named B. C, came to the hotise where he was, desired 
 to be presented to him, and offered herself to him in 
 marriage. When she asked him if he still wished to 
 marry any one, he answered, " Oh no — ^he was too far 
 gone — there were none that would have him at that 
 time." She assured him that she would marry him; 
 and so the interview terminated, without any other 
 acceptance or rejection of the proposition. See Mrs. 
 13 
 
146 SUIT IN EQUITY. 
 
 M. J.'s deposition, p. 59. On the next day her friends 
 came to him, obtained from him some authority to issue 
 the marriage license,^ which was obtained accordingly on 
 a bond Executed by one W. H. H., acting as attorney 
 in fact for R., and by the same H. as the surety in the 
 bond, bearing date the 2l8t August, 1838, p. 46. The 
 day afterwards the young woman came, and in the pre- 
 sence of several persons, K. being held up by the assist- 
 ance of two men, the marriage ceremony was performed. 
 
 There is some little variance in the testimony of the 
 witnesses concerning the circumstances of this cere- 
 mony and the condition of R. R. W. Y., a witness for 
 the plaintiffs, p. 44, gives a favorable account of the 
 state of R.'s mind, thinking that he was in his senses 
 and distinctly made the proper responses to the minis- 
 ter during the ceremony. The other witnesses present 
 give an account of the deplorable condition of R. at the 
 time of the ceremony, of his mistaking another young 
 woman present for the one he was about to marry, of 
 his listlessness and apparent stupor on the occasion, his 
 making no responses to the minister, and the great 
 debility of his body. 
 
 In addition to the testimony of B. J. and his wife 
 Margaret before referred to, pp. 53 and 59, see the depo- 
 sitions of B. P. A., p. 57, C. C. M., p. 58, S. J., p. 62. 
 
 At the time of this marriage, if R. was in a state of 
 mind which enabled him to give a valid assent to any 
 contract, which cannot be admitted, he was unques- 
 tionably in a state of corporal impotency which per- 
 manently disabled him from consummating the mar- 
 riage. As to his impotency, his incapacity for coition, 
 see the plaintiffs' witnesses, W. Y. S., p. 37, and Dr. P., 
 p. 41, and defendant's witnesses, B. J., p. 53, C. C. M., 
 p. 58, W. H., p. 62, Dr. W., p. 66. 
 
 As to the character of the woman E. C, whom R. 
 married, there seems to be some little difference of 
 opinion, some of the witnesses having heard nothing 
 unfavorable of her ; but that she was infamous seems 
 sufficiently proved by the testimony of N. Gr., p. 52, 
 and R. R. H., same page. 
 
 The day after the marriage, R. executed a power of 
 
VIBSINIA STATE COURTS — APPEALS. 147 
 
 attorney to H., who had acted as his agent in procuring 
 the marriage license, giving him authority to collect 
 whatever money was due to him from your petitioner 
 and others. See the power, p. 65. 
 
 He then immediately removed from J.'s, and died on 
 the 3d March, 1839, having in the meantime made his 
 will, appointing the plaintiffs his executors, giving them 
 his whole estate, except one small legacy, and taking 
 no notice of his wife. See the wiU, p. 34. 
 
 W. F. T., one of the trustees in the deed aforesaid, 
 having died, and R. M., the surviving trustee, believing 
 that the contract was fraudulent and nothing was due 
 under it, having refused to act in carrying the deed 
 into effect, R.'s executors brought this suit in August, 
 1840, claiming a balance of the annuities which they 
 alleged were unpaid, alleging that a lawful marriage 
 had taken place between R. and E. C, asking that the 
 contract should be enforced and the lands sold accord- 
 ingly. To this bill they made defendants, your peti- 
 tioner, Dr. M., the surviving trustee, and the heirs of 
 the deceased trustee, p. 1. 
 
 Your petitioner answered the bill, denying that any 
 thing remained due on account of the annuities, alleging 
 that they had been considerably overpaid, insisting upon 
 the fraud in the original contract and the fraud in the 
 attempted marriage, and its utter nullity, both on 
 account of the fraud and on account of the imbecility 
 of R. in body and mind. (p. 6.) 
 
 The surviving trustee, Dr. M., answered, assigning as 
 his reason for refusing to -carry into effect the deed of 
 trust, that he was satisfied that nothing was due under 
 it, and that your petitioner had been defrauded by R. 
 (p. 35.) 
 
 The answer of the infant heirs of W. F. T. is at p. 37. 
 
 In April, 18 — , this cause was brought to hearing, 
 and the first interlocutory decree above mentioned was 
 pronounced, affirming the plaintiff's right to recover, 
 and directing an account, (p. 68.) 
 
 Under this order the commissioner made a report, 
 which, not being excepted to, has not been copied into 
 this record. It appears, however, that the annuities 
 
148 SUIT IN EQUITY. 
 
 had been overpaid, as the sum reported due was less 
 than that by which the contract would have fallen due 
 upon the marriage of R. 
 
 In October, 18 — , your petitioner was allowed to file 
 his petition for a re-hearing, which was accordingly 
 filed, (p. 69.) 
 
 The deposition of J. T., and the second deposition of 
 Dr. M., were taken upon that petition. 
 
 In October, 18 — , the cause was brought on for fur- 
 ther hearing, when the petition for re-hearing was over- 
 ruled, the second statement in the commissioner's re- 
 port, with a slight correction, was confirmed, and a 
 decree rendered against your petitioner for $8,096 63, 
 , with interest on $7,626 12 from the 22d August, 18 — , 
 to be paid forthwith, in failure whereof the land in the 
 deed of trust mentioned was directed to be sold for 
 cash by commissioners appointed by the court, (p. 74.) 
 
 Your petitioner is advised that this decree is erro- 
 neous, — 
 
 First, because the original contract was fraudulent. 
 
 Secondly, because the alleged marriage, even if made 
 Tinder circumstances which would have rendered it valid 
 between the parties, was a fraud upon the contract 
 aforesaid, and could give no valid claim against your 
 petitioner. 
 
 Thirdly, because that marriage itself was void in law 
 by reason of the mental imbecility and the corporal im- 
 potency of R. ; or at the least, it was not such a lawful 
 marriage as was contemplated by the contract. He 
 therefore prays an appeal from the decrees aforesaid, 
 that a supersedeas may be awarded thereto, that they 
 may be reversed and annulled, and such other decree 
 rendered as may be proper. 
 
 W. N;, ly his Counsel. 
 
 We are humbly of opinion, that it is proper that the 
 decrees above referred to should be reviewed by the 
 Court of Appeals. 
 
 C. & G. N. J., 
 Counsel practising in the Court of Appeals. 
 
VIRGINIA STA^^E COURTS — APPEALS. 14^ 
 
 §297.- When tlie petition is for an appeal from a 
 decree or order of a County or Corporation Court, it 
 may be presented to any Circuit Judge or to the Cir- 
 cuit Court where the case is to be docketed if the 
 appeal be allowed.^* In appeals from decrees or orders 
 of Circuit Courts, the petition should be presented to 
 the Supreme Court of Appeals, if such decrees or orders 
 be pronounced in a controversy concerning the right of 
 a corporation or of a county to levy tolls or taxes, or 
 in a case involving freedom or the constitutionality of a 
 law ;^' in appeals from decrees or orders pronounced in 
 causes over which the Supreme Court of Appeals has 
 not appellate jurisdiction, as mentioned in 286th section, 
 ante, the petition should be presented first to a Judge 
 of a District Court, and if rejected by him may be pre- 
 sented to the District Court wherein the case would be 
 docketed if the petition be allowed, or to a Judge of 
 the Supreme Court of Appeals ;^'' but from decrees or 
 orders of Circuit Courts, if rendered in a ease of man- 
 damus, prohibition or habeas corpus, or in a contro- 
 versy concerning the title or boundaries of land, or 
 concerning the probat of a will, or concerning a mill, 
 road, way, ferry or landing, or concerning the appoint- 
 ment or qualification of a personal representative, 
 guardian, committee or curator, or in any civil case 
 where the matter in controversy, exclusive of costs, is 
 not less in value or amount than five hundred dollars, 
 and not embraced among those specially assigned to 
 the District Courts or Court of Appeals as afore-men- 
 tioned, the petition may be presented either to a Judge 
 
 !■• Code of Virginia, cliap. 182, sec. 12; alao, sec. 9. 
 15 Soss. Acts, 1852, chap. 61, sec. 8. w Ibid. sec. 7. 
 
Ij^O SUIT IN EQUITY. 
 
 of a District Court, or to the Supreme Court of Ap- 
 peals, or a Judge thereof." 
 
 §298. When petition rejected, whm tillowed.^-Tke 
 petition ■will be rejected when it is for an appeal from 
 an interlocutory decree or order^ in a case which the 
 Court or Judge to whom it is presented deems it most 
 proper should be proceeded in farther in the court 
 below ;** in a case wherein the court or judge to whom 
 a petition is duly presented shall deem the decree 
 or order plainly right and reject it on this ground, if 
 the order of rejection so state, and the rejection be by 
 the court in term, no other petition shall afterwards be 
 presented to the sanle purpose, except that when the 
 rejection is by a Circuit Court, or a Judge of the Dis- 
 trict Court," the petition (or a copy thereof,) and the 
 order of rejection, with the transcript of the record, 
 may be presented to the District Court wherein the 
 case would be docketed if the petition be allowed, or to 
 a Judge of the Supreme Court of Appeals.^ 
 
 § 299. When appeal allowed. — The Court or Judge 
 to whom a petition is duly presented, if of opinion that 
 the decision complained of ought to be reviewed, may 
 allow an appeal, arid may award a supersedeas to stay 
 proceedings, either in whole or in part.^^ 
 
 § 300. Where appeal docketed. — Appeals from deci- 
 sions of the County or Corporation Courts should be 
 docketed in the Circuit Courts of such county or corpo- 
 
 17 Ibid. seo. 9. 
 
 IS Code of Yirginia, ohap. 182, seo. 10. 
 
 )9 Sess. Acts, 1852, chap. 61, see. 7. 
 
 20 Ibid. Code of Virginia, ohap. 182, sec. 10. 
 
 21 Code of Yirginia, chap. 182, seo. II. 
 
VIRGINIA STATE OOUETS — API*EALS. 151 
 
 ration f appeals frotii decisions of the Circuit Courts, 
 in cases in which Courts of Appeals have not jurisdic- 
 tion, should be docketed in the District Courts, and 
 appeals from Circuit Courts, in cases in which District 
 Courts have not jurisdiction, should be docketed in the 
 Court of Appeals ; and on appeal from the decisions of 
 the Circuit Courts, in cases in which both the District 
 Courts and the Court of Appeals entertain jurisdiction, 
 will be docketed in the Court of Appeals, unless the 
 appellant ask that it be docketed in a District Court, 
 when, by order of the Judge awarding the appeal, it 
 will be docketed in the District Court for the District, 
 constituted in part of the circuit wherein the decree or 
 order was made or rendered.^' Appeals from decisions 
 of District Courts are, in the cases in which such ap- 
 peals are allowed, docketed in the Coujt of Appeals. 
 
 § 301. An appeal docketed in a District Court, if in 
 a case in which a Court of Appeals would entertain 
 jurisdiction, may, on application to the District Court 
 or a Judge thereof by the appellee, be transferred by 
 order of such Court or Judge to the Supreme Court 
 of Appeals : provided the application be made within 
 ninety days after the summons on the appeal or the 
 supersedeas is returned executed on such appellee, and 
 provided the application be also made before the appeal 
 is heard in the District Court." 
 
 § 302. By consent of the parties or their counsel, a 
 pending cause may be transferred from one District 
 Court to another District Court, or from the Supreme 
 
 ^ Code of Virginia, ohap. 182, seo. 12. 
 
 23 See seotions 9, 10, cbap. 61, Sess. Acts, 1S62. 
 
 24 gess Aots, 1852, chap. 61, sec. 10. 
 
152 SUIT IN EQUITY. 
 
 CoUrt of Appeals, to a District Court, or from a District 
 Court to the said Supreme Court, except it be a cause 
 over which the Supreme Court of Appeals cannot exer- 
 cise jurisdiction consistently with the eleventh section 
 of the sixth article of the Constitution.^ 
 
 § 303. Bond of appellants. — Save where an appeal, 
 writ of error or supersedeas is proper to protect the es- 
 tate of a decedent, convict or insane person, the same 
 will not take effect until bond is given by the appellants 
 or petitioners, or one of them, or some other person, 
 in a penalty to be fixed by the court or judge by or 
 in which the appeal, writ of error or supersedeas is 
 allowed or entered, with condition, if a supersedeas be 
 awarded, to perform and satisfy the judgment, decree 
 or order, or the part thereof proceedings on which are 
 stayed, in case the said judgment, decree or order, or 
 such part, be affirmed, or the appeal, writ of error, or 
 supersedeas be dismissed ; and also to pay all damages, 
 costs and fees, which may be awarded against or iq- 
 curred by the appellants or petitioners, and if it be an 
 appeal from an order or decree dissolving an injunction 
 or dismissing a bill of injunction, with a further con- 
 dition to indemnify and save harmless the surety in the 
 injunction bond against all loss or damage in conse- 
 quence of his suretyship ; and with condition, when no 
 supersedeas is awarded, to pay such specific damages 
 and such costs and fees, as may be so awarded or 
 incurred." ^^ When the appeal is allowed on petition, 
 this bond is taken by the clerk of the appellate court 
 before process is issued thereupon, except where the 
 
 25 Sess. Acts, 1852, chap. 61, see. 11. 
 
 26 Code of Virginia, chap. 182, sec. 13. 
 
VIRGINIA STATE COURTS — APPEALS. 153 
 
 Court of Appeals, or the District Court,^' is the appel- 
 late court, in which event the clerk of that court will 
 endorse on the summons or supersedeas that it is not to 
 be effectual until such bond be given before the clerk of 
 the court below, who shall take the bond and endorse 
 on the same process that it has been given, and the 
 names of the sureties therein.-^ 
 
 § 304. Dismission of appeal. — Process will not issue 
 on an appeal or supersedeafj allowed to or from a final 
 decree or order, if, when the record is delivered to the 
 clerk of the appellate Court, there have elapsed five 
 years since the date of the final decree or order ; but 
 the appeal or supersedeas will be dismissed whenever it 
 appears that five years have elapsed since the said date 
 before the record is delivered to such clerk, or before 
 such bond is given as is required to be given before-the 
 appeal or supersedeas takes effect f^ and after the dis- 
 mission of an appeal or supersedeas, no other appeal 
 or supersedeas will be allowed to or from the same 
 decree or order.^" 
 
 § 305. Printing of records. — The records on appeals 
 to the District Courts and the Supreme Court of 
 Appeals are required to be printed. See Sess. Acts, 
 1852, chap. 62, sec. 3 and 4. 
 
 §306. Proceedings in appellate court. — Parol testi- 
 mony will not be heard on an appeal or supersedeas in 
 the District Courts or in the Court of Appeals f^ but 
 
 27 Sess. Acts, 1862, chap. 62, sec. 2. 
 
 28 Code of Virginia, chap 182, sec. 14. 
 
 29 Ibid. sec. 17. Yarbrough and wife T. Deshaso, 7 Grat. 374. 
 
 30 Code of Virginia, chap. 182, sec. 18. 
 
 31 Code of Virginia, chap. 182, sec. 22. Sess. Acts, 1852, chap. 62, sec. 5. 
 
154 SUIT IN EQUITY. 
 
 on appeals from the order of a County or Corporation 
 Court, in special cases, witnesses may be examined in 
 the Circuit Courts.^ 
 
 § 307. In case of death, marriage of a female, or 
 lunacy, or conviction of felony of party to an appeal, 
 if such party be an appellee, the appeal may be revived 
 by scire facias, as in other cases ;^ if he be an appel- 
 lant, on rivotion, without notice, the appeal may be pro- 
 ceeded in in the name of the proper parties, as in other 
 cases.^ And, without such scire facias or motion, if in 
 any case of appeal, writ of error, or supersedeas, which 
 is now or may hereafter be pending, there be at any 
 time in an appellate court, suggested or relied on in 
 abatement, the death of a party, or any other fact, 
 which, if it had occurred after verdict in an action, 
 would not have prevented judgment being entered, (as if 
 it had not occurred,) the appellate court may, in its dis- 
 cretion, enter judgment or decree in such case as if the 
 said fact had not have occurred.^ 
 
 § 308. The appellate court will affirm the decree or 
 order, if there be no error therein, and reverse the 
 same, in whole or in part, if erroneous, and enter such 
 decree or order as the court whose error is sought to be 
 corrected ought to have entered ; affirming in those 
 cases where the voices on both sides are equal.^ 
 
 § 309. When a decree is reversed or affirmed by the 
 Supreme Court of Appeals, the reasons therefor should 
 
 32 See Code of Virginia, chap. 182, see. 22. 
 
 33 See 88, 89 sections, ante; also Code of Virginia, ohap. 173, sec. 3. 
 
 34 See 88, 89 sections, ante; also Code of Virginia, ohap. 173, sec. 3. 
 
 35 Sess. Acts, 1853-4, ohap. 18, seo. 1. 
 
 36 Code of Virginia, chap. 182, seo. 23. 
 
VIRGINIA STATE COURTS. — APPEALS. 155 
 
 be stated in writing, and preserved with the record of 
 the case.^ 
 
 § 310. When any decree or order is affirmed, damages 
 will be awarded to the appellee. Such damages, when 
 the decree or order is for the payment of money, will 
 be at the rate of six per centum per annum on the 
 whole amount of the recovery (including interest and 
 costs) from the time the appeal or supersedeas took 
 effect until the affirmance, or if the affirmance be by 
 the Court of Appeals, or by a District Court,^ until 
 a copy of its decision is entered in the order book of 
 the court below ; which damages, the statute declares, 
 shall be in satisfaction of all interest during that time.^ 
 When the decree or order is not for the payment of 
 any money except costs, the damages will be such spe- 
 cific sum as the appellate court may deem reasonable, 
 not being more than one hundred dollars, nor, in the 
 Court of Appeals, less than thirty dollars.'' 
 
 §311. When any decree or order of a County or 
 Corporation Court is reversed or affirmed, the cause 
 will not be remanded to said court for further proceed- 
 ings, but will be retained in the Circuit Court, and 
 there proceeded in, unless by consent of the parties, or 
 for good cause shown, the appellate court direct other- 
 wise ;*• in the case of other decrees or orders, the cause 
 will be remanded to the court whose decision is ap- 
 pealed from. 
 
 ST Constitntion of Virginia, Article VI. sec. 13> 
 3S Sess. Acts, 1852, chap. 62, sec. 7. 
 
 39 Code of Virginia, chap. 182, sec. 24. 
 
 40 Code of Virginia, chap. 182, sec, 26. 
 
156 SUIT IN EQUITY. 
 
 § 312. Decisions of Court of Appeals and of District 
 Courts, how transmitted. — When any term of the Court 
 of Appeals or of a District Court is ended, or sooner, 
 if the Court so direct, the clerk thereof shall certify, 
 and by mail or otherwise transmit its decisions to the 
 clerk of the court below, except that it shall not be his 
 duty to certify or transmit a copy of a decree of affirm- 
 ance, unless the appellee shall have paid all fees due 
 from him in the case, or shall endorse on such copy so 
 much of the decree for the benefit of the clerk as the 
 unpaid fees amount to.*' 
 
 § 313. Decision of appellate court entered in court 
 below. — The court from which any case may have come 
 to a District Court or to the Court of Appeals, shall 
 enter the decision oi the appellate court as its own, and 
 execution may issue thereon accordingly. If such de- 
 cision be received by the clerk of the court below in 
 vacation he will enter it of record in his order book, 
 and thereupon such execution may issue and such pro- 
 ceedings be had in the case, as would have been proper 
 if the decision had been entered in court.^ 
 
 41 See Code of Virginia, chap. 182, sec. 26; also Sess. Acts, 1852, chap. 
 i, sec. 8. See also Code of Virginia, chap. 182, sec. 27. 
 ^^ Sess. Acts, 1862, chap. 62, sec. 9. Code of Virginia, chap. 182, sec. 28. 
 
EXECUTION OF DECKEE. 
 
 157 
 
 chapte:^ ri. 
 
 EXECUTION OF DECREE. 
 
 § 314. If the party against whom a decree is ren- 
 dered does not appeal, or procure a re-hearing, or file 
 a hill of review for the purpose of altering or amending 
 or I'eversing the decree, the opposite party proceeds to 
 enforce the same by the process of the court. 
 
 § 315. Till a late period, a party, to compel obedience 
 to decrees and orders of the Court of Chancery in 
 England, was forced to resort to the process of con- 
 tempt.' On the 10th May, 1839, however, orders were 
 promulgated by that court, providing that forms of 
 writs of fieri facias, elegit and venditioni exponas, simi- 
 lar to those adopted by courts of law, might be used for 
 the purpose of enforcing any pecuniary demand to 
 which a party might be declared entitled by a decree ;' 
 in other cases, the process of contempt is the only 
 remedy.^ 
 
 § 316. In the United States Circuit Courts, as in the 
 Virginia State Courts, decrees or orders in equity for 
 the payment of money, are enforced in the same way 
 
 ' II. Dan. Ch. Pr. 698. See 83 and &i sections, ante. 
 
 2 II. Dan. Ch. Pr. 699. 
 
 3 Ibid, 700. 
 
 14, 
 
158 SUIT IN EQUITY. 
 
 as judgments at common law ;^ other decrees or orders 
 may be enforced by the process of contempt or its equi- 
 valent, and in special cases, mentioned in section 319, 
 post, the party may proceed by writ of assistance. 
 
 § 317. In the United States Circuit Courts, if the 
 decree be for the performance of any specific act, as, 
 for example, for the execution of a conveyance of land, 
 or the delivering up of deeds, or other documents, it is 
 required by the eighth rule of the Ujiited States Su- 
 preine Court, that the decree shall, in all such cases, 
 prescribe the time within which the act shall be done, 
 of which the defendant will be bound, without further 
 service, to take notice ; and upon afiidavit of the plain- 
 tiff, filed in the clerk's office, that the decree has not" 
 been complied with within the prescribed time, the clerk 
 will issue a writ of attachment against the delinquent 
 party, from which, if attached thereon, he shall not be 
 discharged, unless upon a full compliance with the 
 decree-and the payment of all costs, or upon a special 
 order of the court or of a judge thereof, upon motion 
 and affidavit, enlarging the time for the performance 
 thereof ; and if the delinquent party cannot be found, 
 a writ of sequestration will issue against his estate, 
 upon the return of non est inventus, to compel obe- 
 dience to the decree. 
 
 § 318. In the Virginia State Courts, in the cases 
 mentioned in last section, the ordinary course pursued 
 is this : the party is in the first instance served with a 
 copy of the decree or order requiring him to do the 
 specific act by a day which is usually mentioned in the 
 
 4 See VIII. Eule Supreme Court U.S.; also Code of Virginia, chap, 177, 
 sec. 16, 17, 18, 20, 21 ; also chap. 186; 187, 188, passim. 
 
EXECUTION OF DECREE. 159 
 
 decree or order ; if he fail to comply, a rule is then 
 made upon him to show cause why an attachment 
 should not issue against him for his contempt in not 
 obeying the decree or order of the court ; and a copy 
 of this is likewise served upon him ; if he fail to appear 
 to this rule an attachment will be issued against him ; 
 if he appear and show no sufficient cause, he wiUbe in 
 some cases imprisoned or fined, beside being required, 
 before his release, to comply with the former order or 
 decree of the court. In case an attachment issues, and 
 it is not served upon him, the process of contempt may 
 be regularly pursued to the sequestration.' 
 
 Writ of assistance. 
 
 § 319. The writ of assistance is a process to put a 
 party in possession of an estate which has been ordered 
 by a decree or order to be delivered." Under the old 
 practice of the Court of Chancery in England, this writ 
 could not be obtained without previously suing out and 
 serving what was termed a " writ of injunction" to deli- 
 ver possession, which could only be procured upon the 
 issuing of an attachment or other process of contempt 
 against the parties for not obeying the writ of execu- 
 tion, which attachment or process was not, however, 
 required to be executed;^ subsequently, the writ of 
 injunction was omitted, and by special statute* it was 
 provided that where any party obstinately retains pos- 
 session of land or other real property, after a writ of 
 
 5 See Code ofVirginia, chap. 186, sec. 1. 
 
 6 ir. Dan. Ch. Pr. r23. 
 
 7 Ibid. 724. 
 
 8 1 Wm.i, chap. 36, sec. 15. 
 
160 SUIT IN EQUITY. 
 
 execution of a decree, or an order for delivery of pos- 
 session has been duly served, and demand of possession 
 made, and upon an aiEdavit of such, service of the •vwit 
 of execution, and of such demand made thereunder, 
 and a refusal to comply therewith on the part of the 
 person against whom the writ issued, the party issuing 
 it shall be at liberty to obtain the usual order of course 
 for the writ of assistance tw issue, and that the inter- 
 mediate writs of attachment and injunction, further 
 commanding the party to deliver possession, on any 
 other writ, shall be unnecessary.^ 
 
 § 320. This writ i^ rarely, if ever, used in the Vir- 
 ginia State Courts. The usual course adopted in these 
 courts in cases in which, according to the practice just 
 mentioned, this writ might issue, is the one recited in 
 section 318, ante. 
 
 §321. In the United States Circuit Courts, when 
 any decree or order is for the delivery of possession, 
 upon proof made by affidavit of a demand and refusal 
 to obey the decree or order, the party prosecuting the 
 same will be entitled to a writ of assistance from the 
 clerk of the court.^" 
 
 § 322. The forms of several writs of execution of de- 
 crees to enforce decrees or orders for the payment of 
 money, are similar to those at common law. Forms of 
 these writs, and of the writ of assistance will be found 
 in the Appendix to this volume. 
 
 §323. In the United States Circuit Courts every 
 person, not being a party in any cause, who has ob- 
 
 9 II. Dan. Ch. Pr. 724. 
 
 10 IX. Rule Supreme Court U. S. 
 
EXECUTION OP DECREE. 161 
 
 tained an order, or in whose favor an order has been 
 made, will be enabled to enforce obedience to such 
 order by the same process as if he were a party to the 
 cause; and every person, not being a party in any 
 cause, against whom obedience to any order of the 
 court may be enforced, will be liable to the same pro- 
 cess for enforcing obedience to such order, as if he were 
 a party to the cause.^^ 
 
 II X. Rule Supreme Court U. S. 
 
162 SUIT m BQUITY. 
 
 CHAPTER III. 
 
 Proceedings under Interlocutory Decrees or Orders. 
 
 §324. In this chapter we propose to treat of pro- 
 jeedings under interlocutory decrees or orders of more 
 frequent occurrence in equity causes. 
 
 1. Issues out of Chancery, ^c. 
 
 § 325. It was stated in a previous section, that in 
 certain cases a Court of Equity will direct matters of 
 fact which arise in a cause to he tried by a jury.^ This 
 is termed in the books, " directing an issue out of 
 Chancery."^ 
 
 § 326. The mode of procedure in issues out of Chan- 
 cery in the English Courts has already been spoken of,^ 
 and we have seen that such issues are, in England, 
 invariably directed to be tried before courts of common 
 law. This is the practice in the Circuit Courts of the 
 United States, these courts sitting as courts of common 
 law when such issues are tried. The Virginia State 
 Courts, however, sitting as Courts of Equity, may 
 direct such issues to be tried at their own bar, or at 
 the bar of a common law court.^ 
 
 i See seotioB 241, ante. 
 
 2 See note 6 to sec. 241, ante, 
 
 3 Code of Virginia, chap. Ill, sec. 4. A Circuit Court will not be com- 
 pelled to try an issue ordered by a County or Corporation Court. Ibid: 
 
PROCEEDINGS UNDER DECREES. 163 
 
 § 327. Feigned issues are not directed in any case ; 
 these have been abolished in England, and do not pre- 
 vail in this country. 
 
 § 328. The course of proceeding upon the trial of 
 an issue is generally the same as that adopted in ordi- 
 nary trials at law, except where the court directing 
 the issue has given any special directions upon the 
 subject.* 
 
 § 329. After the trial has been had, the court before 
 whom it is tried certifies to the court directing the 
 issue how the verdict was found; and if any special 
 circumstances occur at the trial which the court may 
 think it right to report, they may be certified to the 
 court directing the issue.® 
 
 § 330. On the trial of an issue, a bill of exceptions 
 for an alleged misdirection of the judge will not lie ; 
 the regular course is, to apply to the court directing 
 the issue for a new trial f but, in Stanard v. Crraves, 
 ^c, 2 Call, 369, where the court in which issue was 
 tried, refused to certify its opinion of the verdict, it 
 was held by the Virginia Court of Appeals that if a 
 party apply for such certificate, and the court refuse it. 
 
 * II. Dan. Ch. Pr. 742. The Court of Chancery usually provides, that 
 on the trial of the issue, copies of the bill, answers, exhibits and deposi- 
 tions of such of the witnesses as are dead or cannot attend shall be read 
 in evidence. Roahe, J., in Burwell, &c. v. Corbin, &e., 1 Rand. 154. 
 See II. Dan. Ch. Pr. 744. And it will impose such restrictions upon the 
 parties as will prevent all fraud or surprise on the trial. 2 Paige, 484. 
 See 1 H. A M. 72. 
 
 5 See Dan. Ch. Pr. 746. Wathins &wife v. Carlton, 10 Leigh, 560. 
 
 6 II. Dan. Ch. Pr. 746. But see Wathins & wife v. Garlton, 10 Leigh 
 560, in which bills of exception were taken on the trial of issue before 
 common law court, and appellate court, in an appeal from decree in chan- 
 cery cause, looked to the bills of exceptions filed at common law trial. 
 
164 sifriT IN EQUITY. 
 
 such application and refusal may be spread, upon the 
 record by bill of exceptions. 
 
 § 331. The plaintiff in an issue may suffer a nonsuit^ 
 and if he does so advisedly in consequence of any un- 
 foreseen occurrence at the trial, which would have ren- 
 dered further proceeding with it unsafe, the court which 
 directed the issue will grant him a new trial, notwith- 
 standing the nonsuit.' 
 
 § 382. If verdict be not satisfactory to either party, 
 application for a new trial may be made to the court 
 directing the issue,* and the court directing the issue 
 may direct a second, or even a third, trial of the issue, 
 the object of the trial being to satisfy the conscience of 
 this court ;* but after three verdicts to the same effect 
 courts of equity will do right in decreeing according to 
 the opinions of juries,' and after two concurring ver- 
 dicts for the same party, the Court of Chancery is not 
 bound to direct a new trial, though both verdicts are in 
 opposition to the opinions of the judges before whom 
 the issues were tried, and a verdict had originally been 
 rendered in favor of the other party.^" 
 
 § 338. Sometimes, the court, instead of directing an 
 issue, directs the institution of an action at law, and, in 
 that case, the motion for a new trial (if verdict be not 
 satisfactory) should be made before the court in which 
 action is brought. An action at law, instead of an 
 issue out of Chancery, is usually directed whenever the 
 
 7 II. Dan. Ch. Pr. 747. 2 Atk. 319. 
 
 8 Ibid. 747. 
 
 » See II. Dan. Ch. Pr, 748. 
 
 9 Stanard T. Graves et als., 2 Call 369, 
 
 lu M'Rae'a ex'or v. Wood's cx'or, 1 Hen. &, Manf. 548. 
 
PROCEEDINGS UNDER DECREES. 165 
 
 foundation of a claim is a legal demand, and tlie ques- 
 tion whether a new trial should or should not be had, 
 can be discussed with more satisfaction in the court of 
 law than in a court of equity." 
 
 2. Proceedings in master's or commissioner's office, 
 under orders or decrees for account,, ^c. 
 
 § 334. The duties of masters, or, as they are termed 
 in the Virginia State Courts, commissioners, are so 
 various, that we shall not attempt here to detail all of 
 them. We will treat simply of the manner in which 
 accounts and enquiries are taken and proceeded in 
 before these officers. 
 
 § 335. When an order or decree refers the settlement 
 of accolmts to a master or commissioner, a copy of such 
 order or decree is furnished him by the party who has 
 obtained such order or decree, and the master or com- 
 missioner thereupon appoints a day on which he will 
 proceed to execute the order or decree, and notifies 
 the parties interested of the day and place. '^ 
 
 § 336. In the United States Circuit Courts, the party 
 at whose instance or for whose benefit the reference is 
 made must cause the same to be presented to the 
 
 11 II. Dan. Ch. Pr. 763, 764. 
 
 12 See Matthews' Guide to Commiseionere, pp. 4, 154. The notice, in 
 the Virginia State Courts, may be given by advertisement in the news- 
 papers, if the court so direct. Code of Virginia, chap. 176, sec. 4. If no 
 such direction be given, and the parties are resident in Virginia, notice 
 must be served on each party, as other notices are served. See Code of 
 Virginia, chap. 167, sec. 1. If party do not reside in Virginia, notice may 
 be given by publication in a newspaper printed in the State, onee a week 
 for four successive weeks. Code of Va. chap. 167, sec. 2. In the United 
 States Circuit Courts a personal service on the parties or their solicitors is 
 required in all cases. LXXV. Rule Supreme Court United States. 
 
166 SUIT IN EQUITY. 
 
 master for a hefJring, on or before the next rule day 
 succeeding the time when the reference was made ; and 
 if he omit to do so, the adverse party will be at liberty 
 forthwith to cause proceedings to be had before the 
 master, at the costs of the party procuring the refer- 
 ence.^' In the Virginia State Courts, there is no posi- 
 tive statute or decision for the purpose of expediting 
 proceedings before commissioners. A rule formerly 
 prevailed in the Richmond Chancery Court to the effect 
 that an order for an account, if not executed within 
 twelve months from its date, would be inoperative, but 
 now this rule is not in force. 
 
 § 337. The commissioner is authorized to proceed, 
 after such notice, as is mentioned in section 335, though 
 the party fails to attend," and a party failing to attend 
 a commissioner after such notice, subjects himself to 
 process of contempt. '° 
 
 § 338. In the Virginia State Courts, the master or 
 commissioner may adjourn his proceedings from time to 
 time after the notice is given (without a new notice) 
 until his report is completed ; and when completed, 
 unless otherwise ordered by the court or agreed by the 
 parties, he retains it for the period of ten days in his 
 office, and if any exceptions be taken meanwhile,^^ or in 
 the progress of the report, they are returned by him 
 with the report, as well as the decrees, orders and 
 notices under which he acted. 
 
 13 IXXIV. Eule Supreme Court U. S. 
 
 14 2 Munf. 605. 
 
 15 2 Rob. Pr. 363 ; 4 H. & M. 437. See also Code of Virginia, chap. 194, 
 ss. 24, 25, 26. 
 
 16 Exceptions may be made either in the commissioner's ofBce before, or 
 in the court, after, the return of the report. 
 
PROCEEDINGS UNDER DECREES. 167 
 
 § 339. In the United Circuit Courts, if either party 
 fail to appear at the time and place appointed, the 
 master will be at liberty to proceed ex parte, or, in his 
 discretion, to adjourn the examination and proceedings 
 to a future day, giving notice to the absent party or his 
 solicitor of such adjournment." 
 
 § 340. Parties may be examined on oath before the 
 master in Chancery or commissioner, either in the 
 United States Circuit Courts^* or in the Virginia State 
 Courts.^' This examination is usually conducljed by in- 
 terrogatories ; and if the party fails to answer, the fact 
 will be reported to the court, which will take action 
 thereon as in the case of other contempts. 
 
 § 341. Parties may also be required by the master or 
 commissioner in chancery to produce books, papers, 
 writings, vouchers and other documents, and upon their 
 failure to do so, a similar report may be made as in 
 last section, with similar results. 
 
 § 342. The master or commissioner may examine 
 witnesses, reducing their examination to writing; and 
 it seems, that in the Virginia State Courts no notice is 
 necessary of the taking of the depositions of witnesses 
 before commissioners, other than the general notice 
 given by the master or commissioner in chancery when 
 the order or decree was first placed in his hand. 
 
 § 343. To obtain the attendance of witnesses, the 
 master is empowered, in the Virginia State Courts, to 
 issue a summons -^ in the United States Courts, he is 
 
 n LXXV. Rule Supreme Court TJ. S. 
 16 LXXVII. Rule Supreme Court U. S. 
 '9 See Code of Va. chap. 176, sec. 38. 
 20 Ibid. 
 
168 SUIT IN EQUITY. 
 
 1 
 
 authorized to procure a blank subpoena from the clerk, 
 and signed by the clerk, which may be filled up either 
 by the master or by the party praying the same.^' 
 
 §344. In the United States Circuit Courts, if the 
 witness, after being duly served with such summons 
 or subpoena, fail to attend, or, if he attend and refuse 
 to testify, the fact may be reported to the court, and 
 in the one case his attendance before the commissioner 
 will be enforced by the court, and in the other he will 
 be compelled to testify by process of contempt, in like 
 manner as if the contempt were for not attending or 
 for refusing to give testimony in the court.^^ 
 
 § 345. In the Virginia State Courts, the rule men- 
 tioned in last section prevails, with this limitation : that 
 if the witness, when summoned, demand the pay for 
 one day's attendance, and his mileage and tolls, and it 
 is not paid him, he cannot be compelled to attend.^^ 
 
 § 346. In the United States Circuit Courts, it is spe- 
 cially required that " All parties accounting before a 
 master shall bring in their respective accounts in the 
 form of debtor and creditor; and any of the other 
 parties, who shall not be satisfied with the accounts so 
 brought in, shall be at liberty to examine the account- 
 ing party viva voce, or upon interrogatories in the 
 master's oflice, or by deposition, as the master shall 
 direct;"^ and "All affidavits, depositions and docu- 
 ments, which have been previously made, read or used 
 in the court, upon any proceeding in any cause or 
 
 21 LXXVIII. Rule Supreme Court TJ. S. 
 
 22 Ibid. 
 
 23 Code of Virginia, chap. 176, sec. 22. 
 
 24 liXXIX. Bule Supreme Court U. S. 
 
PROCEEDINGS UNDER DECREES. 169 
 
 matter, may be used before the master."^ The master 
 ■will "be at liberty to examine any creditor or other 
 person coming in to claim before him, either upon 
 written interrogatories, or viva voce, or in both modes, 
 as the nature of the case may appear to him to re- 
 quire. The evidence upon such examination shall be 
 taken down by the master, or by some other person by 
 his order and in his presence, if either party requires 
 it, in order that the same may be used by the court, if 
 necessary." ^^ 
 
 Reports', how made up and returned. 
 
 § 347. In the Virginia State Courts, the commissioner 
 is required to retiirn with his report all the decrees, 
 orders and notices under which he acted. He should 
 not copy in his account or report any paper ; and if 
 there has been a previous account, he should not copy 
 it into his, but, taking it as the basiis of his, correct the 
 errors and supply the defects thereof by an additional 
 statement.' Every thing improperly copied into a com- 
 missioner's account will be expunged at his costs, on 
 the application of either party ; and if on account of 
 his negligence or misconduct a report be recommitted, 
 he will bear the costs occasioned thereby.^' A com- 
 missioner who doubts as to any point which arises 
 before him, in taking an account to be returned to a 
 Circuit Court, may, in writing, submit the point to such 
 court, or the judge thereof, who may instruct him 
 thereon. ^^ 
 
 S5 LXXX. Rule Supreme Court U. S. 
 
 26 LXXXI. Rule Supreme Court U. S. 
 
 27 See Code of Va., chap. 175, sec. 8. 
 2E Ibid. sec. 6. 
 
 15 
 
170 SUIT IN BQtiTY. 
 
 § 348. In the United States Circuit Courts, " In the 
 reports made by the master to the court, no part of 
 any state of facts, charge, affidavit, deposition, exami- 
 nation, or answer, brought in or used before them, shall 
 be stated or recited. But such state of facts, charge, 
 affidavit, deposition, examination, or answer, shall be 
 identified, specified and referred to, so as to inform the 
 court what state of facts, charge, affidavit, deposition, 
 examination or answer, were so brought in or used."^' 
 
 Exceptions to report. 
 
 § 349. In the Virginia State Courts, exceptions may 
 IjC taken either in the commissioner's office or in the 
 court after the report is returned. The report does not 
 stand confirmed as a matter of course ; it is confirmed 
 only by special order of the court. In the United 
 States Circuit Courts, " The master, as soon as his re- 
 port is, ready, shall return the same into the clerk's 
 office, and the day of the return shall b^ feiitered by 
 the clerk in the order book. The parties " Shall have 
 one month from the time of filing the rbpott to file 
 exceptions thereto ; and if no exceptiolis are within 
 that period filed by either party, the report shall stand 
 confirmed on the next rule day after the month is 
 expired. If exceptions are filed, they shall stand for 
 hearing before the court, if the court is then in session, 
 or if not, then at the next sitting of the court which 
 shall be held thereafter, by adjournment or other- 
 wise."^ 
 
 § 350. In order to prevent exceptions to reports from 
 being filed for frivolous causes, or for mere delay, in 
 
 29 LXXVI. Rule Supreme Court U. S. 
 
 30 LXXXIII. Rule Supreme Court U. S. 
 
PROCEEDINGS UNDER DECREES. 171 
 
 the United Sta.tes Circuit Courts, "the party whose 
 exceptions are overruled, shall, for every exception 
 overruled, pay costs to the other party, and for every 
 exception allowed, shall he entitled to costs ; the costs 
 to be fixed in each case by the court, by a standing 
 rule of the Circuit Court." ^', 
 
 § 351. Exceptions are of the nature of a special de- 
 murrer, and should set forth with sufficient particularity 
 the thing or matter objected to.'^ All parties to the 
 record who are interested in the matter in question may 
 take exceptions to the report; and where there are 
 several sets of parties appearing by different solicitors, 
 they may, if not disposed to join, each take exceptions, 
 although their grounds of exception are the same.^ 
 
 § 352. It would be a departure from the design of 
 this work to enter into a discussion of the legal prin- 
 ciples on which accounts should be settled. The reader 
 will find, however, in the Appendix, a summary of legal 
 decisions affecting the settlements of accounts, together 
 with various forms. 
 
 »i LXXXIV. Rule Supreme Court U. S. 
 
 32 See 1 Barb. Ch. Pr. 191; also Wilkes t. Rogers, 6 Tohn. Rep. 591. 
 
 33 II. Dan. Ch. Pr. 953. 
 
172 SUIT IN EQUITY. 
 
 CHAPTER IV. 
 
 Of amehdmentg of pleadings, ^c. 
 
 § 353. In previous chapters of this work, the atten- 
 tion of the reader has been principally directed to the 
 rules and course of proceeding in a suit originally per- 
 fect in its frame, and in which no incidental circum- 
 stances have occurred to alter the state of the original 
 parties or the relation in which they stood to each 
 other, at the commencement of the proceeding. In a 
 suit in equity, however, it often happens, that the suit 
 is not perfect in its institution, and it more frequently 
 happens that, though perfect in its institution, it has, 
 by some event subsequent to the filing of the original 
 bill, become defective or has abated, so that no pro- 
 ceeding can be had, either as to the whole or some 
 part of it. 
 
 § 354. Defects in the original institution of the suit, 
 which are discovered in time, may usually be remedied 
 by amendment ; other defects are cured, according to 
 the course of English practice, by the exhibition of 
 supplemental bills, when the defects are in the original 
 proceeding or have been occasioned by some event sub- 
 sequent to the institution of the suit, so that the pro- 
 ceedings as they stand cannot have their full effect, and 
 by the exhibition of bills of revivor, when by some 
 subsequent event there is no person by whom or against 
 
AMENDMENTS OF PLEADINGS. 173 
 
 ■whom the suit, in the whole or in part, can be prose- 
 cuted.* In some instan«es, the abatement of the suit 
 gives rise to new matters, which it becomes necessary 
 to introduce into the proceedings, in which cases the 
 proper remedy is by bill of revivor and supplement.' 
 
 Amended hills. 
 
 § 355. When a plaintiff has preferred his bill, and is 
 advised that the same does not contaia such material 
 facts, or make all such persons parties, as are necessary 
 to enable the court to do complete justice, he may alter 
 it by inserting new matter subsisting at the time of ex- 
 hibiting his bill, of which he was not then apprized, or 
 which he did not think necessary to be stated, and may 
 add such persons as shall be deemed necessary parties.* 
 In the United States Circuit Courts, as in the Virginia 
 State Courts, the face of the original bill, after answer, 
 is never altered or added to ; the new matter is usually 
 introduced on a separate paper, which is termed an 
 amended bilL Before answer, the face of the original 
 bill itself is sometimes altered or added to, and this 
 seems to be contemplated as the practice in United 
 States Circuit Courts by the rules adopted for their use 
 by the United States Supreme Court ;* but in the Vir- 
 
 ' III. Dan. Ch. Pr. 150. As we have seen, in a note to a previous sec- 
 tion, bills of revivor simply are rarely, if ever, used in the Virginia State 
 Courts. The usual mode of reviving a suit in these Courts is that pointed 
 out in sections 88, 89, 90, 91, ante. 
 
 z III. Dan. Ch. Pr. 150. 
 
 3 I Dan. Ch. Pr. 608. Daniell adds to the statement contained in the 
 text, " that in case the original bill shall be found to contain matter not 
 relevant or no long6r becessary to plaintiff's case, or parties may be dis- 
 pensed with, the same may be struck out, and the original bill thus altered 
 is termed an ' amended bill.' " 
 
 < See XXVIII. Rule Supreme Court U. S. 
 
174 SUIT IN BaUITY. 
 
 ginia State Courts it is the usual practice, even before 
 answer, not to alter the face of the original bill in a 
 material point, but to introduce the amendment by a 
 separate paper, calling it " an amended bill." 
 
 § 356. When there is a bill or cross bill, and the 
 plaintiiF in the original suit amends his bill before 
 answer, he will lose his priority of suit, and his right to 
 have an answer before he is called upon to answer the 
 cross bill.* 
 
 § 357. Usually, matters which have occurred subse- 
 quently to the filing of the original bill, will not be per- 
 mitted to be introduced by amendment. In such cases, 
 as we have seen, the regular course is to file a supple- 
 mental bill ; but there are cases in which such amend- 
 ments will be allowed. Thus, where the plaintiff has 
 an inchoate right a.t the time of exhibiting his original 
 bill, merely requiring some formal act to render his 
 title perfect, and that act is not completed till after 
 filing of the original bill, the introduction of that fact 
 by amendment will be permitted.^ 
 
 § 358. It was formerly the practice in the Virginia 
 State Courts, before amending bills, to obtain the 
 special leave of the court to amend ; but it is now de- 
 clared by statute that in the Virginia State Courts the 
 plaintiff may of right amend his bill bofore the defen- 
 dant's appearance, and notwithstanding such appear- 
 ance the plaintiff may at any time in the vacation of 
 the Court wherein the suit is pending, file in the clerk's 
 office an amended bill,' In the United States Circuit 
 
 6 I. Dan. Ch. Pr. 509. 
 6 I. Dan. Ch. Pr. 511. 
 ' See Code of Va. chap, 171, sec. 14. 
 
AMENDMENTS OF PLBAfitNGS. 175 
 
 ■Courts, the plaintiff is at liberty, as a matter of course 
 and without payment of costs, to amend his bill in any 
 matters whatsoever, before any copy has been taken 
 ■out of the clerk's office, and in any small matters after- 
 wards, such as fiUiag blanks, correcting errors of dates, 
 misnomer of parties, misdescription of premises, cleri- 
 cal errors, and generally in matters of form f if a copy 
 has been taken out, before an answer or plea or de- 
 murrer, the plaintiff may amend his bill in a material 
 point, but he is required to pay the defendants the costs 
 occasioned thereby, and to furnish without delay, free 
 of expense, to each of the defendants affected thereby, 
 a fair copy of the amendments, with suitable references 
 to the places where such are to be inserted; and if the 
 amendments are numerous, a fair copy of the whole 
 bill ;' after an answer, or plea or demurrer is put in, 
 and before replication, the plaintiff may, upon motion 
 or petition without notice, obtain an order from any 
 judge of the court to amend his bill on or before the 
 next succeeding rule day, upon payment of costs or 
 without payment of costs, as the court or a judge 
 thereof may in his discretion direct ; but after replica- 
 tion filed, the plaintiff will not be permitted in these 
 courts to withdraw it and amend his bill, except upon a 
 special order of a judge of the court upon motion or 
 petition, after due notice to the other party, and upon 
 proof by affidavit that the same is not made for the 
 purpose of vexation or delay, or that the matter of the 
 proposed amendment is material, and could not, with 
 reasonable diligence, have been sooner introduced into 
 the bill, and upon the plaintiff's submitting to such 
 
 8 XXVIII. Kul» Supremo Court U. S. s Ibid. 
 
176 SUIT IK EQUITY; 
 
 other tgfms as may be imposed by the judge for speed- 
 ing the cause.'" 
 
 § 359. A plaintiiF obtaining special leave of the 
 United States Circuit Courts to amend his bill as men- 
 tioned in last section, who fails to file his anlebdments 
 or amended bill, as the case may require, in the clerk's 
 office, on or before the next succeeding rulfe day after 
 obtaining such leave, will be considered as having aban- 
 doned the same, and the cause will proceed as if no 
 application for any amendment tiad beeh inade." 
 
 § 360. See 46th rule of SiljJreme Court of United 
 States, printed in Appendix td this volume, as to duty 
 of defendant when an amended bill has be^n filed, after 
 answer, in the United States Circuit Courts. 
 
 Supplemental hills. 
 
 § 361. As we have seen, supplemental bills may be 
 filed to remedy defects in a suit, either when they exist 
 at the time of filing the original bill, and it is too late 
 to correct them by amendment, or when they have oc- 
 curred since the filing of the original bill, in conse- 
 quence of the birth of new parties, or a change in the 
 interests of those originally on the record.'^ 
 
 § 362. When a plaintiff has an inchoate right at the 
 time of filing his original bill, and it merely requires a 
 formal act to complete it, he may introduce such fact 
 into the record by an amendment of the bill, or he 
 may file a supplemental bill.'^ A plaintiff, however, 
 
 10 XXIX. Rule Supreme Court U. S. 
 
 11 XXX. Rule Supreme Court U. S. 
 
 12 III. Dan. Oh. Pr. 150. 
 
 13 III. Dan. Ch. Pr. 163. 
 
AMENDMENTS OP PLEADINGS. 177 
 
 cannot support a bad title, by acquiring another after 
 the filing of an original bill, and then bringing it for- 
 ward by supplemental bill ;" yet it is to be remarked 
 that it is only where the first title is absolutely bad, 
 that a supplemental bill of this description will be im- 
 proper.'^ 
 
 § 363. Supplemental bills will not be allowed for the 
 purpose of introducing a completely new case; they 
 must be in aid of that which the court has already 
 done ; still less can they be maintained for the purpose 
 of adding to the decree, what, upon the hearing, the 
 court has excluded from it.'* 
 
 § 364. It is not every fact which has occurred sub- 
 sequent to the filing of the original bill, which renders 
 a supplemental bill necessary ; such facts must be ma- 
 terial, and therefore, in a suit for an account, where 
 there is no alteration in the interests of the parties, 
 nor any particular circumstances requiring further dis- 
 covery, but only a fact has occurred which may be 
 proved on taking the account prayed by the original 
 bill, and the relief is not varied by the supplemental 
 matter, but the plaintifi" might have the relief which the 
 supplemental bill prays for, under the original bill, the 
 supplemental bill is improper, and may be demurred to.'' 
 
 § 365. When a sole plaintiff' has assigned his whole 
 interest, or has been deprived of it by an event subse- 
 quent to the institution of a suit, the alienee, or party 
 claiming his title, must proceed by an original hill in 
 
 14 Ibid. See Tonkin t. Lethlridije, Cooper's Kep. 43. 
 
 15 III Dan. Ch. Pr. 154. 
 
 16 111. Dan. Ch. Pr. 159. 
 1' III Dan. Ch. Pr. HO. 
 
178 SUIT IN EQUITY. 
 
 the nature of a supplemental bill, and not by a supple- 
 mental bill.'* 
 
 § 366. A supplemental bill should state tbe original 
 bill, and the proceedings thereon.'' If the supplemen- 
 tal bill is occasioned by an event subsequent to the 
 original bill, it must state that event, and the conse- 
 quent alteration of parties thereon, and it must pray 
 that the defendants may appear and answer to the 
 charges it contains.^" If the supplemental bill has 
 been rendered necessai-y by the alteration or acquisi- 
 tion of interest happening to a defendant, or a person 
 comes into esse who is necessary to be made a defendant, 
 the supplemental bill may be exhibited by the plaintiff 
 in the original suit against such person alone, and may 
 
 >8 III. Dan. Ch. Pr. 164. This distinction may, at first sight, appear 
 artificial, but it iR attended by a considerable difference in the practical 
 results. In cases in which a. supplemental bill only is filed, if there has 
 been no decree, the suit may proceed after the' supplemental bill has 
 been filed, in the same manner as if the original plaintiff had continued 
 such, except that the defendants must answer the supplemental bill 
 and either admit or put in issue the title of the new plaintiff; but, in 
 the case of an original bill, in the nature of a supplemental bill, the 
 whole case is open j a new defence may be made, the pleadings and 
 depositions cannot be made use of in the same manner as if filed or 
 taken in the same cause, and the decree, if any has been obtained, 
 is no otherwise of advantage than as it may be an inducement to the 
 court to make a similar decree ; whilst, in the case of a mere supplemental 
 suit, the benefit of the original decree, if obtained, is expressly giTen to 
 the new plaintiff by the supplementary decree, and he is declared entitled 
 to stand in the place of the plaintiff in the original bill, and to have the 
 benefit of the proceedings upon it, and to prosecute the decree, and take 
 the steps necessary to render it effectual. III. Dan. Ch. Pr. 164. 
 
 19 III. Dan. Ch. Pr. 175. This is the general rule; but in the United 
 States Circuit Courts, it is expressly provided that it shall not be neces- 
 sary in any bill of revivor or supplomentiil bill to set forth any of the 
 statements in the original suit, unless the special circumstances of the 
 case may require it. LVIII. Rule Supreme Court U. S. 
 
 20 III. Dan, Ch. Pr. 178. 
 
AMENDMENTS OP PLEADINGS. 179 
 
 pray a decree upon the particular supplemental matter 
 alleged against that person only ; unless, which is fre- 
 quently the case, the interests of the other defendants 
 may he affected by that decree, in which case such 
 other defendants must be made parties.^' A supple- 
 mental bill generally calls upon the defendant to answer 
 the supplemental matter only ; if, however, it is occa- 
 sioned by the transmission of the interest of a defen- 
 dant who has not answered the original bill, and it is 
 necessary to have a discovery from the new defendant 
 of the matters in the original bill, it may pray that the 
 defendant may answer the original bill.^^ 
 
 § 367. In the United States Circuit Courts, whenever 
 any suit in equity shall become defective, from any 
 event happening after the filing of the bill (as for ex- 
 ample, by a change of interest in the parties,) or for 
 any other reason, a supplemental bill, or a bill in the 
 nature of a supplemental bill, may be necessary to be 
 filed in the cause, leave to file the same may be granted 
 by any judge of the Cviurt on any rule day, upon proper 
 cause shown, and due notice to the other party. And 
 if leave is granted to file ^uch supplemental bill, the 
 defendant shall demur, plead or answer thereto, on the 
 next succeeding rule day after the supplemental bill is 
 filed in the clerk's ofiice, unless some other time shall 
 be assigned by a judge of the court. ^^ In the Virginia 
 State Courts a plaintiff may file a supplemental bill, 
 without such leave and without notice.^* 
 
 21 III. Dan. Ch. Pr. 179. ^ Ibid, 181. 
 
 23 See LVII. Eule Supreme Court U. S. 
 2* Code of Virginia, chap. 171, sec. 14. 
 
180 SUIT IN BQUITY- 
 
 Bilh of revivor. 
 
 § 368. When a suit, perfect in its original formation, 
 afterwards becomes discontinued or imperfect by abate- 
 ment, the general method of continuing it or of reme- 
 dying the defects in the English Courts and in the 
 United States Circuit Courts, is by bill ot revivor;'^ as 
 we have seen, in the Virginia State Courts, defects of 
 this character may be remedied by the issue of a writ 
 of scire facias,^^ and in these courts it is not the usual 
 practice to file a bill of revivor simply. 
 
 § 369. While, in the English Courts, or in the United 
 States Circuit Courts, when an abatement takes place 
 before decree signed and enrolled, a bill of revivor is 
 the only proceeding by which the suit may be con- 
 tinued, after a decree has been signed and enrolled, the 
 party wishing to continue it may proceed either by bill 
 of revivor, or by a subpoena in the nature of a scire 
 facias.^' 
 
 § 370. It is not every death of a party to a suit 
 which occasions such an abatement as will suspend the 
 proceedings ; if the interest of the party dying so de- 
 termines that it can no longer affect the suit, and no 
 person becomes entitled thereupon to the same interest, 
 or if the whole interest of the party dying survives to 
 another party, the suit may go on without revivor.^ 
 
 § 371. If a bill of revivor seeks merely to revive the 
 suit, it prays simply for a subpoena to revive ; if it re- 
 
 ^ See LVI. Rule Supreme Court U. S. 
 26 See section 88, ante. 
 2' III. Dan. Ch. Pr. 197. 
 as See III. Dan. Ch. Pr. 202. 
 
AMENDtaEJiTTS 6t PLEADINGS. 181 
 
 quires any answer, as in the case of a bill- against an 
 €xecutor, requiring him to admit assets, it should pray 
 a subpoena to revive and ans-vver.^" 
 
 Bills qf reviver and supplement. 
 
 § 372-> These are bills combining the characteristics 
 T)f the bill of revivor #ith those of supplemental bills.*' 
 
 Defences to amended bills, ^. 
 
 § 373. To theee several bills the defendant may, as 
 in the case of original bills, plead, answer or demur; 
 and while many of the causes of demurrer or plea 
 which apply to an original bill will apply to these bills, 
 there are some grounds on which these several modes 
 tof defence may be made, which are solely applicable to 
 these bills. Thus, if the plaintiff amends his bill and 
 states a matter arisen subsequent to the filing of the 
 bill and properly the subject of a supplemental bill or 
 bill of revivor, the defendant may demur ;*^ or if a sup- 
 plemental bill is brought upon matter arising before the 
 Sling of an original bill, when the stiit is in that stage 
 of the proceeding that the bill may be amended, the de- 
 fendant may demur ;^ and so, if the same plaintiff file a 
 supplemental bill claiming the same matter as in an ori- 
 ginal bill, but upon a title totally distinct, the defendant 
 may demur :^' and, the defendant may plead in defence 
 to a supplemental bill, that it is brought on matter which 
 
 29 III. Dan. Ch. Pr. 215. See LVI. Rule Supreme Court V. S. 
 
 30 See III. Dan. Ch. Pr. 232. 
 
 31 I. Dan. Ch. Pr. 550. He may also protect himself from the effects 
 of the amendments by plea. Ibid. * 
 
 32 III. Dan. Ch. Pr. 183, so Ibid. 
 
 16 
 
l82 SflT iSf EQtJITt. 
 
 sirose before tJie original bill was filed, and mlgKt Lave 
 been introduced into the original bill, if this fact does 
 hot appear upon the supplemental bill. 
 
 § 374. A bill of revivor, also,- is liable to demurrei' 
 for reasons pectlliar to its character — ^thus, if it does 
 hot shew sufficiefrtt ground for reviving the suit, or any 
 part of it, either by or against the person by or against 
 whom it is brought, the defendant msy demur.^* And, 
 it is liable to a plea of a similar character, when there 
 is not sufficient" cause to revive and the fact is not appa- 
 rent on the bill :— the defendant in such case may plead 
 the matter necessary to shew that the plainitifF is not 
 entitled to revive the suit agaifist him, or that the 
 plaintiff is not entitled to revive his suit at all.^ 
 
 § 375. An answer may be filed to a bill of revivor, 
 ■frhjether required or not.^ Though in strict practice, 
 an answer to such bill should be confined to such mat- 
 ters as are called for by the bill or would be material to 
 the defence with reference to the order made upon it, 
 yet the answer will not be impertinent, if it states 
 matters of defence which have occurred since the an- 
 swer to the original bill was filed, although such matters 
 do not affect the title of the plaintiff to revive. ^^ 
 
 § 376. Bills of revivor and supplement ate liable to 
 ihe same descriptions of defence as these bills, if sepa- 
 rate, would be liable to.^ 
 
 § 377. These several bills, pleas, answers and de- 
 murrers, have the same general frame with that al- 
 
 M III. Dan. Ch. Pr. 218. 35 Ibid. 
 
 36 See III. Dan. Ch. Pi". 220. 37 ibid. 
 
 38 III. Dan, Ch. Pr. 232. 
 
AMENDMENTS OF PLEADINGS. 183 
 
 ready pointed out in preceding chapter in regard to 
 original bills and the defences thereto, and should be 
 attended with the same formalities in regajrd to signing, 
 filing, &c. 
 
 NOTE. 
 
 The following summary of Mr, Danlell in relation to the ordinary 
 effects of abatement and revivor, in the English Courts, upon the proceed/- 
 ingB of a oau&o, will be found useful to the practitioner: 
 
 "Where the abatement is total, i. «., where it is caused by the death 
 bankruptcy, insolvency, or marriage of the plaintiff, (being a female,) the 
 caus&is completely suspended and cannot be proceeded in, till it has been 
 revived, or the defect, caused by the abatement, cured by supplemental 
 bill, and, in general, all orders made pending such abatement, will be 
 considered nugatory, and may be discharged. The same rule will also 
 apply where the abatement has been caused by the death of one or more 
 plaintiffs. Thus if, pending a total abatement, process of contempt is 
 issued, it will be irregular, and may be discharged on motion with costs, 
 &nd if a defe^dfint is arrested on any process pending such abatement, he 
 will be discharged, from such arrest, with cost;. So also, an ofder to 
 dismiss a bill for want of prosecution, obtained pending an abatement 
 will be irregular. 
 
 It is to be observed, however, that, although the general rule is as above 
 stated, there are many oases in which the Court will entertain applications 
 although the suit is abated. Thus it will entertain a motion to discharge 
 process of contempt issued or executed pending an abatement ; so also, 
 ftlthough no regular order to dismiss a bill for want of prosecution can be 
 obtained before revivor, the Court will, as we have seen, if the plaintiff, or 
 bis representatives, or the surviving plaintiffs, omit to revive the suit 
 within a reasonable period, make an order that they shall file a bill of 
 revivor within a limited time or else that the bill shall be dismissed. 
 
 It has, also, where the right to money in Court has been clear under 
 former orders and reports, made an order upon petition for payment of 
 the money out of Court, to the party entitled without regarding the 
 abatement, or for the delivery of deeds and writings brought into Court, 
 or it will send it to the Master for inquiry to whom they belong. 
 
 We have seen also, that a commission to examine witnesses abroad will 
 Bot be affected by an abatement of the suit, and that depositions taken 
 (Wder it, (provided neither the commissioners nor the witnesses have 
 received notice of the abatement,) will be good. 
 
 An inrolment of a decree may also be made, and an order to do so, 
 nunc pro tunc, may be made, notwithstanding an abatement. 
 
 Where, however, the suit abates after a decree has been pronounced, but 
 before it is passed, there must be a revivor before it can be passed. 
 
 It is to be recollected that the Statute of Limitations will run, pending 
 Slu abatenjejit, in all cases except a decree to iiooofint. 
 
184 SUIT IK EQUITY. 
 
 Amendments, of answers, 
 
 § 378. As we hp,ve seen in a previous section,^ after 
 ail answer has been put in upon oath, the court will 
 not, for obvious reasons, readily suffer any alterations 
 
 It is to be observed, that an abatement, altbough it suspends proceed- 
 ings in a cause, does not put an end to them ; therefore, where process oS 
 contempt has been executed, and a defendant is in custody upon it, andi 
 afterwards the suit abates, the defendant is not thereby entitled to his 
 discharge out of custody, but ho must move that the plaintiff may revive 
 within a. limited time, or. that the bill may be dismissed and he may be 
 discharged. So also, an injunction is not dissolved by an abatemeiit,.but 
 the defendant must, if he wishes to get rid of. the injunction, move that 
 the plaintiff may revive within a limited time, or that the injunction may 
 be dissolved. The same observations may apply to reoeivers appointed 
 under an order of the Cojirt, who are not discharged on abatement 
 without an order of the like description. 
 
 There an abatement is partial, e, g. where it is oansed by the death of 
 a defendant, it prevents those proceedings only by which the interest of 
 the deceased defendant may be affected; for the death of a defendant 
 makes an abatement quoad himself alone : therefore, if there be a decree 
 against trustees and their cestui que trust to convey, and the cestui que 
 trust dies, the trustees may be compelled to convey, notwithstanding his 
 death. So also, pending an abatement, by the death of a defendant, pro- 
 cess of contempt may be issued and executed against the other defend- 
 ants ; and, we have before seen, that, during such an abatement, the 
 Court will, at the instance of a creditor, take the prosecution of a decree 
 from the plaintiff. 
 
 It has, also, been held, that the death of a defendant, after bearing but 
 befoie judgment, does not necessarily prevent judgment; but where, 
 upon a motion to dismiss for want of prosecution, the plaintiff appears 
 and undertakes to set the cause down for .hearing within a limited time, 
 in default of which the bill is to stand dismissed, and afterwards the 
 defendant dies, and the time for setting the cause down expires before the 
 suit can be revived, the order dismissing the bill is su'spended during the 
 abatement. 
 
 We have already seen that where a bill against several defendants is 
 retained, with liberty for the plaintiff to bring an aotion-. against one of 
 them, the trial. may take place during an abatement occasioned by the 
 death of another defendant, provided such other is not directed by the 
 decree to attend the trial, in which case a trial befor« the suit is revived 
 against such defendant will be irr^gular^ 
 
 3S Sec. 1 54, p. 69. 
 
AMENDMENTS 01' PLEADINGS. 185 
 
 to be made in it. We allude merely to alterations in 
 material points. In any matter of form, or other un- 
 important matter, such as correcting a date, filling up a 
 blank, and the like, these amendments may be made as 
 of course. This is allowed by special rule in the 
 United States Circuit Courts,*" and it is the practice in 
 the Virginia State Courts; yet, after alterations of 
 this kind, the answer should be re-sworn to. But after 
 replication, or after the cause is set down for a hearing, 
 an answer will not be amended, in the United States 
 Circuit Courts, in any material matters, as by adding 
 new facts or defences, or qualifying or altering the 
 original statements, except by special leave of the 
 court or of a judge thereof, upon motion and cause 
 shown, after due notice to the adverse party, supported, 
 if required, by aiEdavit ; and in every case where leave 
 is so granted, the court or judge granting the same 
 may, in his discretion, require that the same be sepa- 
 
 "Where the abatement of a suit is total, an order to revive places the 
 suit and all the proceedings in it, in precisely the " same plight, state, and 
 condition that the same were in at the time when the abatement took 
 place," and the new plaintiff may take the same proceedings in the cause 
 that the original plaintiff might have done; thus the plaintiff in a revived 
 suit may amend the original bill in the same manner that the original 
 plaintiff might have done, and may issue an attachinent against the 
 defendant for not answering the amended bill. So also, the new plaintiff 
 may prosecute process of contempt against the defendant, taking it up 
 where it left off at the abatement; and if a process has been issued before 
 the abatement, it will be revived by the order to revive. \ 
 
 The ease is different where the abatement is occasioned by the death of 
 a defendant; in such case, the prbcefss being personal, cannot be revived. 
 In general, however, where an abatement is occasioned by the death of a 
 defendant, the order to revive against the representatives of such de- 
 fendant will place the suit as fully in the same position with regard to 
 such representatives as can be done, with reference to the change of the 
 individuals before the Court." III. Dan. Ch. Pr. 223, et seq, 
 
 *o LX. Rule Supreme Court U. S. 
 
186 SUIT IN EQUITY. 
 
 ratfely engrossed, and added as a distinct amendment to 
 the original answer, so as to be distinguishable there- 
 from." In the Virginia State Courts, the leave to 
 amend an answer, if deemed proper by the Court, is 
 granted after due notice to the adverse party. 
 
 CHAPTER V. 
 
 Interlocutory appUeations. 
 
 § 379. An interlocutory application is a request made 
 to the court for its aid in a matter arising in the course 
 of the cause. It may either relate to the process of 
 the court, or to the protection of the property in litiga- 
 tion pendente lite, or to any other matter upon which 
 the interference of the court is required at any time. 
 Applications of this kind are made either orally or in 
 Writing — in the former case, they are called motions ; 
 in the latter petitions} 
 
 MOTIONS. 
 
 § 380. There are motions of course and special mo- 
 tions. The former may be made without notice to the 
 opposite party ; the latter can only be made after rea- 
 sonable notice. 
 
 41 LX. Rule Supreme Court U. S. 
 1 1. Barb, Ch. Pr. 666. 
 
INTERLOCUTORY APPLICATIONS. 187 
 
 § 381. Motions may be made by or on behalf of any 
 of the parties, or by a quasi party (as in the case of a 
 creditor coming in under a decree,) but strangers to the 
 record may not apply to the court by motion; such 
 should file a petition. 
 
 § 382. The distinctive differences between motions of 
 course and special motions, seem not to be very well 
 settled ; the former, however, are defined to be such as 
 it is a matter of course to grant, while the latter need 
 some ground to be laid for them, either by the previous 
 order, or by the pleadings in the cause, or by afiidavits. 
 
 PETITIONS. 
 
 § 383. These are applications in writing for an order 
 of court, stating the circumstances upon which they 
 are founded, and are duly entitled of the cause and 
 court in which they are to be filed. They are usually 
 resorted to whenever the nature of the application to 
 the court requires a fuller statement than can be conve- 
 niently made in a notice of motion.^ Strangers to the 
 record are, as we have seen, required to file a petition, 
 when those who are parties may obtain the relief sought 
 by mere motion. 
 
 § 384. Brevity and form are the two things chiefly 
 to be observed in drawing petitions ; to which may be 
 added, care to avoid scandal or impertinence, for which 
 a petition, as well as any other proceeding, may be 
 referred.^ 
 
 § 385. In some of the State Courts of the Union, 
 petitions are required to be signed and sworn to by the 
 
 2 I. Barb. Ch. Pr. 578. 
 
 3 I; Barb. Ch. Pr. 580. 
 
188 SUIT tN EQUITY. 
 
 petitioner and signed by his solicitor and counsel. In 
 the United States Circuit Courts, and in the Virginia 
 State Courts, the petition is signed by the petitioner, 
 and it is sometimes accompanied by an affidavit of the 
 truth of the facts stated in it. 
 
 § 386, It is not the practice to institute either in the 
 United States Cii'cuit Courts, or in the Virginia State 
 Courts, an equity proceeding by petition. They are 
 usually filed in suits already pending, or which have 
 been pending in these courts. 
 
 ORDERS. 
 
 § 387. In a previous section,* it was stated that a 
 distinction had been made in the books between decrees 
 proper and interlocutory orders, the former referring to 
 such adjudications or orders as the court may make at 
 the hearing, and the latter having reference to orders 
 not made at the hearing of the cauSe, i. e. when the 
 parties are not fully at issue before the court. The 
 latter are technically termed " orders," to distinguish 
 them from decrees. 
 
 § 388. These orders generally pertain to matters, 
 merely collateral, nor going to the adjudication of the 
 questions in issue. Sometimes they are intended to 
 hasten the maturing of the cause; at others, to take 
 care of the property in controversy ; at others, to com- 
 pel the appearance of a party. It is evident therefore, 
 that these orders may be made either before or after 
 the cause is matured. 
 
 § 389. There are orders of course or common orders, 
 and special orders ; the former made as of course with- 
 
 •i Section 237. 
 
INTERLOCUTORY APPLICATIONS. 189 
 
 out notice to the opposite party, and the latter requiring 
 such notice. 
 
 § 390. In the United States Circuit Courts, orders 
 may be made at Chambers, by the Judge, or on the 
 rule days,^ and these orders are entered in an orderr 
 book kept for the purpose by the clerk. Save where 
 personal or other notice is specially required or dir 
 rected, the clerk's entry in the order-book in these 
 courts is deemed sufficient notice to the parties or their 
 solicitors, without further service thereof, of all orders 
 touching any and all the matters in the suits, to and in 
 which they are parties and solicitors,^ 
 
 §391. In the Virginia State i Courts, save in special 
 cases, such as the granting of an injunction, and the 
 like, and saving those orders granted by the clerk at 
 rules, orders are usually entered by the court during 
 term time. « 
 
 § 392. Orders, like decrees, may be enforced by the 
 process of contempt.' Orders are always under the 
 control of the court ; they may be opened, varied and 
 discharged, upori application, if the court deem it rea- 
 sonable,* but an order or decree by consent cannot bp 
 varied or ipodified in an essential point 'without the 
 assent of both parties.' 
 
 AFFIDAVITS. 
 
 § 393. An affidavit is an oath in writing, sworn to 
 before some person who has authority to administer an 
 
 5 III. Rule Supreme Court U. S. 
 
 6 IV. Rule Supreme Court U. S. 
 
 7 II. Dan. Ch. Pr. 693. 
 8 1. Barb. Ch. Pr. 595. 
 
 8 I. Barb. Ch. Pr. 596. Leiteh v- Cumpston, 4 Paige, 4?6. 
 
190 SUIT IN EQUITY. 
 
 oath ;" when to be used in a cause, an affidavit should 
 be properly entitled of the cause and the court in -which 
 suit is pending. '^ 
 
 § 394. Affidavits may be made by the parties in the 
 suit during the progress thereof; but they can only be 
 read on motions, &c, ; they are inadmissible as evi- 
 dence at the hearing.*' 
 
 § 395. Affidavits, like other pleadings in equity, 
 should not contain scandalous or impertinent matter.*^ 
 
 INJUNCTIONS ANP WRITS OF NB EXEAT. 
 
 § 396. Injunctions and writs of ne exeat, though they 
 may be obtained in an equity proceeding, after the 
 institution of a suit, are usually granted prior to the 
 institution of a suit, g-nd will therefore be treated of in 
 another chapter. 
 
 EECEIVERS. 
 
 § 397. These are usually appointed by the court to 
 receive the rents and profits of land of other property 
 or things in question pending the suit, where it does 
 not appear reasonable that either party should do so," 
 The appointment of receivers rests in the discretion of 
 the court, 
 
 ABATEMENT AND BEVIVOE. 
 
 § 398. The abatement of a suit in equity is merely 
 an interruption to the suit, suspending its progress until 
 
 10 1. Barb. Ch. Pr. 597. 
 
 11 1. Barb. Ch, Pr. 600. 
 
 12 Ibid. 599. m Ibid. 602, 
 
 14 I. Barb Ch, Pr. 658. 
 
IJITEULdCtTOB* APPLICAIIONS. 191 
 
 Hew Jjartids are brought before the court; and -when- 
 ever a suit abates, there inust be a revival, before the 
 questions in issue can be adjudicated by the court. 
 
 § 399. In the United States Circuit Courts, wheflevei* 
 a suit in equity becomes abated by the death of either 
 party, or by any other event, the same may be revived 
 by a bill of revivor, or a bill in the nature of a bill of 
 revivor, as the circumstances of the case may require, 
 filed by the proper parties entitled to revive the same ; 
 which bill may be filed at any time ; and upon sugges- 
 tion of the facts, the proper process of subpoena will be 
 issued by the clerk, requiring the proper representa- 
 tives of the other party to appear and shew cause, if 
 any they have, why the cause should not be revived ; 
 and if no cause is sheWn at the next rule da;y which 
 shall occur after fourteen days from the time of the 
 service of the subpoena, the suit will stand revived as 
 of course.^" In the Virginia State Courts, as we have 
 seen, a suit in equity may be revived without resorting 
 to a bill of revivor.'* See Book IL Chap. IV. ante, 
 
 15 LVI. Rule Supreme Court U. S. 
 
 16 See Sec. 8S, ante. 
 
192 StriT tN EfttflTt. 
 
 CHAPTER VI. 
 
 INJUNCTIONS AND WRITS OF NE EXEAT. 
 
 § 400. A writ of ihjunction may be described as a 
 judicial process whereby a party is required to do a 
 particular thing, or to refrain from doing a particular 
 thing, according to the exigency of the writ.^ The 
 object of this process, which is extensively used in 
 equity proceedings, is generally preventive and pro- 
 tective rather than restorative; though it is by no 
 means confined to the former.^ It seeks to prevent a 
 meditated wrong more often than to redress an injury 
 already done. It is not confined to cases falling within 
 the exercise of the concurrent jurisdiction of the court; 
 but it equally applies to cases belonging to its exclusive 
 and auxiliary jurisdiction. 
 
 § 401. Injunctions are usually granted on bills spe- 
 cially prepared with the view to obtain the Injoining 
 order of the court, anterior to the institution of the 
 suit; but they may be obtained subsequent to insti- 
 tution of suit and to the filing of original bill. 
 
 § 402. Injunctions are either provisional, general or 
 perpetual. Provisional injunctions are such as are to 
 continue until the coming in of defendant's answer,^ or 
 
 ' Gilb. For. Rom. 192, 194. 
 
 2 Story Bq. Juris., sections 165, 166. 
 
 3 See Turner v. Scott, Ac, 5 Rand. 332. 
 
INJUNCTIONS AND WRITS OF NE EXEAT. 193 
 
 until the hearing of the cause, or until the Master has 
 made his report.* A general injunction is the process 
 ordinarily employed in a cause, and continues in force 
 until the further order of the Court." Perpetual in- 
 junctions are such as form part of the decree made at 
 the hearing upon the merits, -^Thereby the defendant is 
 perpetually inhibited from the assertion of a right, or 
 perpetually restrained from the commission of an act 
 which would be contrary to equity and good conscience.'' 
 
 § 403. An injunction will not be ordered, or the 
 writ issued, in any case, until the bill has been filed; 
 and usually the bill must pray specially for an injunc- 
 tion, and be verified by affidavit, as an injunction will 
 not be granted under a prayer for general relief, unless 
 , the necessity for it grows out of the proceedings, and 
 not from the original situation of the parties.' 
 
 § 404. Injunctions are, in the United States Circuit 
 Courts, granted by those courts when in session, or by 
 a judge thereof in vacation. The Virginia Circuit, 
 County or Corporation Courts may grant injunctions 
 in term time, except that a County or Corporation 
 Court shall not award an injunction to a judgment or 
 proceeding of any other court ; and Judges of Circuit 
 Courts in Virginia are empowered to grant injunctions 
 in vacation.* 
 
 And when a Circuit Court or a Judge thereof refuses 
 to award an injunction, a copy of the proceedings in 
 
 4 I. Barb. Ch. Pr. 608. 
 
 5 I. Barb. Cb. Pr. 612. 6 Ibid. 613. 
 
 7 1. Barb. Ch. Pr. 615, and cases there cited. See Code of Virginia, 
 obap. 179, sec. 3 ; a special statute as to granting of injunctions in Vir- 
 ginia, 
 
 8 See Code of Virginia, chap. 179, sec. 4 and C. 
 
 17 
 
104 SUIT IN EQUITY, 
 
 Court, and the original papers presented to the Judge 
 in vacation, with his order of refusal, may be presented 
 to a Judge of the Court of Appeals, who may there- 
 upon award the injunction." 
 
 § 405. Injunctions may be applied for ex parte, or 
 upon notice, or upon an order to shew cause. The 
 application is usually ex parte, if made before the de- 
 fendant has appeared, but the court or judge may 
 require notice to be served on the defendant, or may 
 enter an order to shew cause why the injunction should 
 not be granted ; in either of which cases, he will have 
 an opportunity to appear and contest the right of the 
 plaintiff to have an injunction issue.'" 
 
 § 406. Usually, when an injunction is granted, the 
 party obtaining the injunction is required to give bond , 
 in a sufficient penalty, affixed by the court, with such 
 condition as the court may prescribe ; and, in the Vir- 
 ginia State Courts, when an injunction to a judgment 
 or decree is obtained, the statute specially prescribes 
 that the bond shall be conditioned that the party ob- 
 tOiining the injunction shall pay the judgment or decree, 
 (proceedings on which are enjoined,) and all such costs 
 as may be awarded against him, and all such damages 
 as may be incurred in case the injunction be dissolved; 
 and, in case a forthcoming bond has been given under 
 said judgment or decree, the bond should be further 
 conditioned to indemnify and save harmless the sure- 
 ties in said forthcoming bond, and their representatives 
 against all loss or damage in consequence of said sure- 
 tyship. '^ 
 
 Seo Codo of Virginia,, cTiap. 179, sec. 7. 
 
 10 Seo Code of Virginia, cliap. 179, sec. 3. 
 
 11 See Code of Virginia, chap. ISO, sec. VO. 
 
INJUNCTIONS AND WRITS OF NE EXEAT. IHO 
 
 § 407. In the case of a personal representative or 
 other person, from -whom, m the opinion of the court 
 or judge awarding the injunction, it may be improper 
 to require a bond, bond will not be required. ^^ 
 
 § 408. If the injunction be to a judgment or decree, 
 the bond will be given before the clerk of the court 
 in which such judgment or decree was rendered ; in 
 other cases, the bond will be given before the cleric 
 of the court in which the suit is, wherein the injunction 
 is awarded.'^ 
 
 § 409. When an injunction is granted to a judgment, 
 it is the practice to require the plaintiff in injunction 
 bill to execute a release of errors at law. This prac- 
 tice is founded upon the general principle of equity 
 that a party shall not be permitted to sue both at law 
 and in equity, for the same thing." 
 
 § 410. Injunctions may be dissolved in vacatioii, in 
 the Virginia State Circuit Courts, after reasonable no- 
 tice to the adverse party ;^^ but in these courts, as in 
 the County and Corporation Courts, the usual practice 
 pursued is, to move for a dissolution of the injunction 
 at the first term after it has been granted. In term 
 time, injunctions granted in the Circuit Courts, or the 
 County or Corporation Courts, may be dissolved. 
 
 12 See Code of Virginia, eliap. ISO, sec. 10. 
 
 " See Code of Virginia, chap. 180, see. 10. 
 
 'I 11 Kob. Pr. 240, and cases there cited. Sometimes a party who. is 
 defendant in an action at law, comes into equity for relief, while the 
 action is still pending. In such case, the general rule is, that he must 
 confess judgment at law, and rely solely on the Court of Equity for relief. 
 .ind should an injunction to the proceedings at law be awarded without 
 directing such confession, upon motion to the Court of Equity it will order 
 the injunction to stand dissolved, unless judgment be confoesed. War- 
 ioiehj &c. V. Norvellf 1 Leigh, 96. 
 
 '5 Code of Virginia, chap. 180, sec. 12. 
 
196 SUIT IN EQUITY. 
 
 § 411. In the Virginia Circuit Courts, when an in- 
 junction is wholly dissolved, the bill will stand dis- 
 missed, of course, with costs, unless sufficient cause be 
 shewn against such dismission at the next term ; when 
 such injunction has been wholly dissolved, and the bill 
 is pending in a County or Corporation Court, the bill 
 will be dismissed, of course, with costs, unless suffi- 
 cient cause be shewn against such dismission, at or 
 before the second term after the dissolution, whether a 
 monthly or quarterly term.^^ 
 
 § 412. As in other cases, so here, either party may 
 appeal from a decree of court dissolving or perpetuating 
 an injunction. 
 
 WRIT OP NB EXEAT. 
 
 § 413. This writ, originally applicable to purposes 
 of State only, yras afterwards extended to private trans- 
 actions." Its design was to prevent a party from flee- 
 ing the country to avoid the payment of a just demand 
 or to avoid the justice and equity of the court, and 
 was, in its original conception, confined to cases where 
 the claim upon the party going abroad was equitable, 
 in opposition to a legal demand on which the defendant 
 might be arrested and obliged to give bail.^' This origi- 
 nal purpose of the writ has been strictly adhered to, 
 and the writ is not granted save on equitable claims.'^ 
 
 16 Code of Virginia, chap. 179, sec. 14. 
 
 n III. Dan. Ch. Pr. 375. '8 Ibid. 
 
 19 The only exception to the rule in England, says Daniell, which 
 requires the demand to ho equitable, is in tho instance of alimony decreed 
 by the Spiritual Court, in which Court, as the Spiritual Court cannot take 
 bail, this Court will loud its assistance to the woman. See III. Dan. Ch. 
 Pr. 37C. 
 
INJUNCTIONS AND AVRITS OF NE EXEAT. 197 
 
 § 414. In the Virginia State Courts, the Code of 
 Virginia aboKshed the right to hold the party defend- 
 ant to bail in any action at common law ; and the spirit 
 of that enactment was extended to equitable demands, 
 by a failure on the part of the Legislature to re-enact 
 former statutes giving the courts of the State authority 
 to issue writs of ne exeatP So that, in these courts, 
 writs of ne exeat are now not used. 
 
 § 415. The right to grant writs of ne exeat regno is 
 recognized as existing in the United States Circuit 
 Courts, by the rules prescribed for the use of these 
 courts f^ and in these courts, the rule just laid down in 
 regard to the issuing of this writ-, prevails, to- wit: that 
 the claim upon which the writ is sought to be obtained 
 must be an equitable claim. 
 
 § 416. It is presumed, in the absence of express au- 
 thority on the point, that these courts will not issue 
 writs of ne exeat in any case arising in a State where, 
 by express legislation, the right to hold to bail in an 
 action at common law has been abolished, and the 
 right to issue writs of ne exeat has been taken away 
 from the State Courts ; as in Virginia.^^ 
 
 § 417. The form of a writ of ne exeat, as formerly 
 used in the Virginia State Courts, and specially pre- 
 scribed by statute, was as follows : 
 
 20 See Code of Virginia, ctap. 170, sec. 5, and note to that section, 
 p. 6i3. 
 
 21 XXI. Rule Supreme Court U. S. 
 
 22 The spirit of the Virginia Statutes has been expressly carried out by 
 the United States Circuit Court for the fourth Circuit and Eastern Dis- 
 trict of Virginia. 
 
108 SUIT IN EQUITY; 
 
 " The Commonwealth of Virginia to th6 sheriff or coroner 
 of county, (or Serjeant of the city, cprporation or 
 
 borough of ',) greeting : Whereas' it is represented to 
 
 the court of the county of , or to the court of the 
 
 city or borough of , (as the case may be,) or to. two 
 
 of the member? of one of the aforesaid courts, viz : A. B. 
 and C. D., two justices or aldermen, (as the case may be,) on 
 the part of E. P., in a suit instituted by him agaitist Gr. H- 
 defendant, that the said G. H; designs quickly to leave this 
 Commonwealth, as by oath made in that behalf appears, 
 which tends to the great prejudice and damage of the said 
 E. F. ; therefore, in order to prevent this injustice, you are 
 hereby commanded that you do, without delay, cause the 
 said Gr. H. to . come before you, and give sufBcient bail or 
 security in the sum of , that he will not go, or 
 
 attempt to go, out of the limits of this Commonwealth, with- 
 out the leave of our said court, or, performing such decree as 
 may.' be made in the suit aforesaid; and, in case the said G. 
 H. .shall refuse to give s.uch bail or security, then you are to 
 commit him to the jail, of your county, city or borough, (as 
 the case may be,) there to be kept in safe eiistody, until ho 
 shall do so of his own accord; and, when you have taken 
 such security, you are forthwith to make and return a certifi- 
 cate thereof to the justices of pur said court, distinctly and 
 plainly, under your seal, together with this writ; 
 
 "Witness, W. G-., S., clerk of our said. court, on this 
 day of , and in the year of the Commonwealth 
 
 of Virginia. 
 
 W; a. S., ClerJi::" 
 
 § 418. The application for a writ of ne exeat regno 
 is usually madia upon a bill prajing specially the issue 
 of the "writ, with proper affidavit of the truth of the 
 statements contained in the bill.^^ 
 
 §419. The bill must, be accompanied by an affida- 
 vit, -which should be positive to a. deht or to the belief 
 
 23 The XXI. Kule of Supremo Court U; S. expressly requires a special 
 prayer. 
 
INJUNCTIONS AND WKITS OF NE EXEAT. 199 
 
 of the plaintiff that a certain balance of account is 
 due.^* 
 
 § 420. .The general rule prevailed in the English 
 courts, that the writ of ne exeat is only applicable to 
 equitable demands, and that there must be not only an 
 equitable demand, but one in the nature of a debt ac- 
 tually due ; and this rule has been followed in Ameri- 
 can cases.^^ Chancellor Kent, however, in the case of 
 Porter v. Spencer, 2 John. Ch. Rep. 169, reviewed the 
 English adjudications, and came to the conclusion that 
 the rule against the allowance of the writ, where the 
 matter was of legal cognizance, was not inflexible, but 
 would yield to cases of necessity, when justice would 
 be defeated without the aid of the writ.^^ 
 
 zi Gernon v. Boeealine, 2 Wash. C. 0. R. 130. In Tlioriie T. Hahcy, 7 
 -Tohn. Ch. Rep., 189, the plaintiff did not swear positively to amj indebt- 
 edness. This was considered a fatal defect, and the writ was discharged. 
 The rule seems to be this — while the plaintiff must swear positiyely that 
 a balance is due, he need not swear to any sum. See 11 Rob. Pr. 198. 
 
 2= See Set/mowr v. Namrd, 1 John Ch. Rep. 1, and Smedberg v. Mark, 6 
 Id, 138, cited by Robinson. 
 
 28 But see Nixon T. Ricliardaon, 4 Desau. 103. 
 
200 SUIT IN EQUITY. 
 
 CHAPTER VII. 
 
 Bills of interpleader, bills to perpetuate testimony, hills 
 to examine witnesses de bene esse, hills of discovery, 
 cross hills, and hills of review. 
 
 § 421. In a former chapter we have treated some- 
 wliat cursorily of the several kinds of bills exhibited in 
 Courts of Equity, and to that chapter the reader is 
 referred/ as well as to the fourth chapter of this book, 
 treating of bills necessary to render perfect a suit ori- 
 ginally imperfect in its frame or become so since the 
 institution of the original bill. We propose now to 
 devote further sections especially to the consideration 
 of bills of interpleader, bills to perpetuate testimony, 
 bills to examine witnesses de hene esse, bills of dis- 
 covery, cross bills, and bills of review, as being of fre- 
 quent occurrence in the proceedings in Equity Courts. 
 
 Bills of interpleader. 
 
 § 422. Course op Plaintiff. — A bill of interpleader 
 is where the complainant claims no relief against either 
 of the defendants, but the defendants claiming of him 
 the same debt or duty by different or separate inte- 
 rests, he is uncertain with which of the claims he ought 
 to comply, and applies to the court by this bill for 
 leave to pay the money or deliver the property to the 
 
 ' Book I. chap. II. 
 
BILLS OF INTERPLEADER. 201 
 
 one to wliom it of right belongs, and that he may 
 thereafter be protected from the claims of both.^ The 
 object of this bill is to protect a complainant stand- 
 ing in the nature of an innocent stake-holder, and it 
 ■will not lie if the plaintiff himself claims any interest 
 in the property in dispute f nor will it lie if the com- 
 plainant is obliged to admit that, as to either of the 
 defendants, he is a wrong-doer.^ 
 
 § 423. To maintain a bill of interpleader, the com- 
 plainant must be uncertain to whom the right belongs : 
 and if the complainant shews no right to compel the 
 defendants to interplead, whatever rights they may 
 claim, each defendant may demur.^ 
 
 § 424. The matter of the bill should conform to the 
 above requisitions : it should shew that the complainant 
 is a mere stake-holder, having no personal interest in 
 the controversy between the parties claiming the funds 
 in his hands, and that their respective claims against 
 him are of the same nature and character ; that there 
 is some doubt, in point of fact, to which claimant the 
 debt or duty belongs, so that he cannot safely pay or 
 render it to one without risk of being made liable for 
 the same debt or duty to the other.^ 
 
 § 425. To a bill of interpleader, it is necessary to 
 annex an affidavit by the complainant, to the effect 
 that there is no collusion between him and any of the 
 other parties.' The want of this affidavit is a cause of 
 demurrer.' 
 
 z Welf. Eq. P!. 148. 
 
 3 II. Barb. Ch. Pr. 117, 118. t Ibid. 
 
 5 Welf. Bq. PI. 152, '3. 
 
 <5 IL Barb. Ch. Pr. 120. 7 Ibid. 
 
 s Mitf. PI. See Story's Eq. PI. 297. 
 
202 SUIT IN EQUITY. 
 
 § 426. The prayer of the bill conforms to the objects 
 for which it is instituted ; it prays that the defendants 
 may set forth their several titles, and may interplead 
 and settle and adjust their demands between them- 
 selves ;' that the court will adjudge to whom the money 
 or property belongs, and that the complainant may be 
 indemnified : and if any suits at law are brought against 
 the complainant, the bill may pray for an injunction to 
 restrain the claimants from proceeding until the right 
 is determined;" but, in general, the money must be 
 brought into court before the court will act on this 
 part of the prayer." 
 
 § 427. Defence. — If the bill does not show a right 
 to compel the defendants to interplead, a demurrer 
 lies ; and so, too, the bill may be demurred to, as we 
 have seen, if there be not annexed to it an afiidavit of 
 non-collusion.^^ 
 
 § 428. The defendants may also put in an answer 
 admitting or denying the facts stated in the bill.^^ 
 
 Bills to perpetuate testijTwny. 
 
 § 429. A bill to perpetuate testimony may be brought 
 when a party interested in any property is in danger of 
 losing the evidence of his right before it can be judi- 
 cially investigated.^^ 
 
 § 480. To such bills, the persons who will be bene- 
 fited by the loss of the evidence will be made parties 
 defendant, and the prayer of the bill will be to examine 
 the witnesses and perpetuate the testimony.'^ 
 
 9 Story's Eq. PI. 297. lo II. Barb. Ch. Pr. 122. 
 
 " Story's Eq. PI. 297. 12 II. Barb. Ch. Pr. 122. 
 
 13 II, Barb. Ch. Pr. 123. n II. Barb. Ch. Pr. 130. 
 
 15 II. Barb. Ch. Pr. 130. See sections 433, 4, post. 
 
BILLS TO PEKPETUATB TESTIMONY. 208 
 
 § 431. The rule of most utility in regard to such 
 bills is this — that the party complainant must be inte- 
 rested; and a mere expectancy, however strong, will 
 not be sufficient to support the bill ;'" but any actual 
 interest, be it small or great in value, whether absolute 
 or contingent, and although remote ili enjoyment, is 
 sufficient.'^ 
 
 § 432. The bill should state particularly the matter 
 touching which the complainant is desirous of acquiring 
 evidence ; that the complainant has an interest in the 
 subject ; the nature of the interest ; and the interest 
 of the parties defendant to contest the complainant's 
 title ;'^ and when the bill is framed on the ground that 
 the testimony of a witness may be lost by his death or 
 departure from the State before the case can be inves- 
 tigated in the Court of Law, it seems proper also, in 
 order to avoid objection, to annex to it an affidavit of 
 the circumstances by which the evidence intended to be 
 perpetuated is in danger of being lost.*' When the 
 bill is sworn to, however, it will be sufficient to state 
 the circumstances in the bill : no other affidavit will be 
 necessary.™ 
 
 § 433. The bill should, as we have stated, pray leave 
 to examine witnesses touching the matters stated, to 
 the end that their testimony may be preserved and per- 
 petuated.^' It should also pray proper process ; but it 
 should not pray that the defendant may abide such 
 
 le IL Barb. Ch. Pr. 137. n Ibid. 
 
 18 II. Barb Ch. Pr. 140. 
 " Ibid. 141. 20 Ibid. 
 
 "' See section 430, ante. 
 
204 SUIT IN EQUITY. 
 
 order and decree as the court shall think proper to 
 make, for that will turn it into a bill for relief, -which is 
 inconsistent with the nature of a bill to perpetuate 
 testimony.^^ 
 
 § 434. Defence. The defence to a bill to perpetuate 
 testimony is the same as in other cases, by demurrer, 
 plea or answer, according to the nature of the case.^^ 
 A demurrer will seldom lie to a bill of this nature ; if 
 the bill pray relief, it will of course be demurrable ; but 
 it has been held that where the relief and discovery 
 prayed by the bill were both demurrable, the defendant 
 could not demur to so much of the bill as sought to 
 perpetuate testimony.^* 
 
 § 435. " A bill to perpetuate testimony," says an au- 
 thority before cited, "is never brought to a hearing."" 
 
 § 436. In the Virginia State Courts, bills to per- 
 petuate testimony are of very rare occurrence, and, 
 indeed, they have been rendered of no utility by the 
 late legislation of the State. The statutes of this State 
 have for a long period provided in the amplest manner 
 for taking testimony in all pending cases, and by the 
 
 22 II. Barb. Ch. Pr. 142. Coop. Eq. PI. 52. Miller T. Sharp, .3 Eand. 
 41. But when a bill is to perpetuate testimony, and also for relief, the 
 court will frequently allow the complainant to amend his bill by striking- 
 out the relief, even after the testimony has been taken under it. Vaughan 
 T. Fitzgerald, 1 Sch. 4 Lef. 316, cited by Barbour. See II. Barb. Ch. 
 Pr. 142. 
 
 23 Welf. Eq. PI. 146. 
 
 21 II. Barb. Ch. Pr. 142. 
 
 25 See Vaughan v. Fitzgerald, 1 Sch. &, Lof. 316. Also, II. Barb. Ch. 
 Pr. 143. 
 
billTo examine witnesses de bene esse. 205 
 
 recent Code, special provision is made for the perpet- 
 uation of testimony as to matters in respect to which 
 there is no suitJ^ 
 
 Bill to examiwe witnesses de bene esse. 
 
 § 437. This bill bears a close analogy to bills to per- 
 petuate testimony. It is onljf sustainable in aid of a 
 suit already depending, in this respect differing from 
 the bill to perpetuate testimony, which may be main- 
 tained, as we have seen, when there is no present suit, 
 and when no such suit can be brought by the person 
 seeking the aid of the Court.^^ 
 
 § 438. The object of the bill is to take the testimony 
 of witnesses for a trial kt law, in cases where the testi- 
 mony may otherwise be lost ; as where the witnesses 
 are aged or infirm, or are about to depart from the 
 State.^ 
 
 § 439. Depositions taken de bene esse are valid only 
 in the cause in which they are taken, and against those 
 who are parties to it and claiming through some or one 
 of those whose interest has accrued since the bill was 
 filed.^" 
 
 § 440. The rules already stated in regard to bills to 
 perpetuate testimony, are for the most part applicable 
 to bills to take testimony de bene esse. 
 
 § 441. Both in the Virginia State Courts and in the 
 United States Circuit Courts, these bills have gone out 
 of use. The statutory legislation of Virginia and of 
 
 2S See Code of Virginia, chap. 176, see. 34 ; also, sectiona 26, 27, 28, 29, 
 30, 31, 32 and 33 of same chapter. 
 27 II. Barb. Ch. Pr. 144. K Ibid. 146. M Ibid. 
 
 18 
 
206 SUIT IN EQUITY. 
 
 the Congress of the United States, and the rules of the 
 United States Supreme Court, have entirely obviated 
 the necessity of filing such bills. ^'' 
 
 Bjlls of discovery. 
 
 § 442. Every bill is in reality a bill of discov€ry ; 
 but the kind of bill usually distinguished by that title 
 is a bill for the discovery of facts resting in the knowl- 
 edge of the defendant, or of deeds, or writings, or 
 other things in his custody and power, and seeking no 
 relief in consequence of the discovery, though it may 
 pray for a stay of the proceedings at law until the 
 discovery shall be made. It is commonly used in aid 
 of the jurisdiction of some other court.**- 
 
 § 443. The complainant must be entitled to the dis- 
 covery he seeks, and can only have a discovery of what 
 is necessary for his own title, and will not be allowed 
 to pry into that of the defendant.'^ 
 
 § 444. A discovery will not be compelled where it 
 would subject the defendant to a penalty, forfeiture, 
 or criminal proceedings, or would be in violation of 
 professional confidence.^' 
 
 § 445. A bill of discovery must be for matters which 
 lie only in the knowledge of the defendant, and must 
 call for something which it is not in the power of the 
 complainant to set out in his bill.'* 
 
 30 See Code of Virginia, chap. 176, see. 31. Story's Laws IT. S. Vol. I. 
 p. 64. LXS. Kule Supreme Court U. S. ; and chapter on " Evidence," 
 ante. 
 
 31 Mitf. Eq. PI. 63. 11. Barb. Ch. Pr. 101. 
 
 32 Cooper's Eq. PI. 68. II. Barb. Ch. Pr. 101. 
 
 33 AVelf. Eq. PI. 119. Story's Eq, PI. s. 647. 
 
 34 11. Barb. Ch. Pr. 103. 
 
BILLS OF DISCOVEEY. 20T 
 
 § 446. The bill should state the matter concerning 
 ■which a discovery is sought, the interest of the several 
 parties in the subject, and the complainant's right to 
 the discovery asked for. It miist shew a privity be- 
 tween the complainant and defendant, and state with 
 reasonable certainly its true nature and character.*' It 
 must also state that the discovery is asked for the pur- 
 pose of some suit brought or intended to be brought ;^ 
 and when the bill is brought, before any action is com- 
 menced, it is usual to aver that the discovery of the 
 facts is necessary to enable the party to commence his 
 suit aright.^'^ 
 
 § 447. The prayer of the bill is usually to the effect 
 that the complainant may have of the defendant " a 
 full disclosui-e and discovery of all and every the mat- 
 ters and things" stated before, and that "the defendant 
 may abide the order and direction^ of the court." It 
 seems that if any exercise of the jurisdiction of the 
 court is prayed which involves the necessity of a hear- 
 ing and decree or decretal order, on these rights, the 
 suit is thereby rendered a suit for relief, and is liable 
 to all the incidents of that proceeding.^' 
 
 § 448. Defence. To a bill of discovery, a defendant 
 may either plead, answer or demur. If the matter re- 
 lied on by the defendant constitutes a defence to the 
 relief or purpose sought by the bill, whether that relief 
 be at law or in equity ; or if the defence be that the 
 
 35 IL Barb. Ch. Pr. 104. S6 Ibid. 105. 3' Ibid. 
 
 38 Observe, tbat the •'decree" of the court ia not prayed for: but if it 
 were, if there be no prayer for relief, the bill will be considered as a, bill 
 for discovery merely. Bee II. Barb. Ch. Pr. 107, and cases there eitejl. 
 
 39 II. Barb. Ch. Pr. 107. 
 
208 SUIT IN EQUITY. 
 
 complainant has no title to equitable relief; or that the 
 complainant has no interest in the subject matter ; or 
 that the defendant is a hona fide purchaser for a valu- 
 able consideration, without notice ; or that the bill does 
 not declare a purpose for which courts of equity will 
 compel a discovery; or that the complainant is under 
 some disability : in these and the like cases, though the 
 defence extends to the entire subject of the suit, it 
 seems that the objection must be taken by way of plea 
 or demurrer : and it is a general rule that unless the 
 defendant can protect himself by demurrer or plea, 
 according to the nature of the case, he must answer.'" 
 § 449. As soon as the answer is filed, containing the 
 discovery, the purposes of the suit are accomplished, 
 and the suit is not brought to a hearing. The defend- 
 ant in such case is entitled to his costs.*^ 
 
 § 450. In the Virginia State Courts, bills of dis- 
 covery are rarely, if ever, filed. The statutes of the 
 State have made ample provision for obtaining discove- 
 ries from parties to actions at law, without resorting to 
 g, Court of Equity.^^ 
 
 Cross hills. 
 
 § 451. In a previous chapter, we have stated that it 
 was necessary for the full protection of defendants in 
 certain cases, that a cross bill should be filed.*^ As a 
 defendant cannot pray any thing in his answer except 
 
 •10 II. Barb Ch. Pr. 109. •" Ibid. 115. Coop. PI. 61. 
 
 <- See Code of Virginia, chap. 176, sec. 38, 39 and 40. 
 <' See section 166, ante. 
 
CROSS BILtS. 209 
 
 to be dismissed the court, if he has aiiy relief io pray 
 or discovery to seek, he must do so by a bill of his own, 
 which is called a cross-bill.''* 
 
 § 452. A cross bill may be brought either to obtain 
 a discovery of facts in aid of the defence to the origi- 
 nal bill, or to obtain some relief founded on the col- 
 lateral claims of the party filing it.*'' 
 
 § 453. The necessity of a cross bill for discovery, 
 arises from the general rule in equity that the com- 
 plainant in a suit cannot be examined as a witness in 
 that suit. There are not unfrequently cases in which 
 the particular transaction is known only to the acting 
 parties. In these, the cross bill affords a perfect reci- 
 procity of proof to each party, derived from the an- 
 swers of each.** 
 
 § 454. Sometimes a cross bill is resorted to by the 
 defendant, when by the rules of pleading in equity he 
 would not otherwise be able to avail himself of the 
 matter of his defence. Thus, if the defence has arisen 
 after the cause is at issue, or if the complaihant has 
 released the defendant, or there has been an award 
 made on a reference after issue joined, a defendant 
 may bring them before the court on a cross bill.*' A 
 cross bill is also necessary to enable a defendant to 
 have a decree against a co-defendant.*^ 
 
 § 455. The connection of the matter of a cross bill 
 (in itself either legal or equitable) with the subject 
 
 " Lube's Eq. PL 39. 11. Barb. Ch. Pr. 126. 
 45 II. Barb. Ch. Pr. 1271 Story's Eq. PI. s. 389. 
 « Story's Eq. PI. s. 390. II. Barb. Ch. Pr. 121. 
 " Cooper's Eq. PI. 86, 87. Mitf. PI. 82. 
 48 Mitf. PI. 81. 
 
.210 SUIT Ilf EQOITVr. 
 
 matter of the original bill, gives the court jurisdiction 
 of the cross bill, of which it cannot be ousted by a 
 dismission of the original bill.^ 
 
 § 456. A cross bill should state the original bill and 
 proceedings thereon, and the rights of the party exhib- 
 iting the bill which are necessary to be made the sub- 
 ject of cross legislation, or the ground on which he 
 resists the claims of the plaintiff in the original bill, 
 if that is the object of the new bill.™ In a cross bill, 
 a party cannot question what he has admitted in his 
 answer.^^ 
 
 § 457. A cross bill filed for collateral relief differs in 
 "no respect from the common form of an original bill.^^ 
 
 § 458. Defence. A complainant in the original bill, 
 as well as other parties to the cross bill, may plead, 
 answer or demur to the cross bill ; but a plea to the 
 person of the complainant in a cross bill, (unless exhib- 
 ited by a person incapable alone to institute a. suit,) 
 and a demurrer for want of equity in such bill, will not 
 lie.'' Nor does a plea to the jurisdiction lie to such 
 bill." 
 
 § 459. A complainant in the original bill has the 
 priority, and will not be compelled to answer the cross 
 
 43 Barb. Ch. Pr. 128. WicUiffe v. Claij, 1 Dana, 689. 
 » Mitf. PI. 81. 
 
 61 ffudsonSj '&c, V. Hudson* B exV., 3 Hand. 1?*^ 
 
 62 II. Barb. Ch. Pr. 132. 
 
 53 Mitf. Eq. PI. 291. II. Barb. Ch. Pr. 132, 133. 
 
 S'l Mitf. Eq. PI. 291. Though the authorities do not so state, it is pre- 
 sumed that the complainant alone in original bill is precluded Irom 
 making these defences. We see no reason why others ihould be debarred 
 from making .them, in cases in which such defences were made to original 
 bill. See Mitf. Eq. PI. 203, as to reason of rule announced in the text. 
 
CKOSS BILLS. , 211 
 
 bill until the defendant has put in his answer to the 
 original bill f^ but if the plaintiff in the original cause 
 amends his bill in material points, subsequent to the 
 filing of the cross bill, the amended bill -will be consid- 
 ered as a new bill, and he thereby loses his priority.'" 
 
 § 460. If a cross bill be taken as confessed, it may 
 be used as evidence against the complainant in the 
 original suit, on the hearing, and will have the same 
 effect as if he had admitted the same facts in an 
 answer.*^ 
 
 § 461. After both causes are at issue, the complain- 
 ant in the cross suit may have an order that they be 
 heard together, but it is not indispensable that they 
 be heard together.''^ The court will not suspend the 
 hearing of the original cause on account of a cross 
 bill, when the cross bill has been filed at an unreason- 
 ably late period, or when the plaintiff in the cross bill 
 has practiced delay in preparing it for a hearing.^' 
 
 § 462. Sometimes, at the hearing of an original 
 cause, a cross bill is directed to be filed; and even 
 after interlocutory decree, such direction has been 
 
 55 Lube'3 Eq. PI. 143. See Code of Virginia, chap. ITl, see. 15 ; also, 
 LXXII, Rule Supreme Court U. S., printed in Appendix to this volume. 
 
 56 Lube's Eq. PI. 143. If an original bill is abated by the marriage 
 of a complainant, and a cross bill is then filed,' the priority of the original 
 bill is lost. Smart v. Floyer, Dick. 260, cited by Barbour : II. Barb. Ch. 
 Pr. 135. 
 
 6T White V. Buloid, 2 Paige, 164. 11. Barb. Ch. Pr. 135. 
 
 58 Coleman v. Moore, 3 Little, 355. 
 
 53 See II. Rob. Pr. 319, and the following cases cited by Robinson : 
 Sterry, &c. T. Arden, &c., 1 Johns. Ch. Kep. 62; Ooverneur, &c. v. Elmen- 
 dorf, &c., i John?. Ch. Rep. 357; and White v. Buloid, 2 Paige, 164. 
 
 60 See Mitf. PI. 83 ; Broion Ti Sfory, 2 Paige, 694. 
 
212 SUIT 11^ EijUITY; 
 
 Bills of review. 
 
 § 463. A bill of review is in. the nature of a writ 
 of error ; and its object is to procure an examination 
 and alteration, or reversal of a final decree made 
 upon a former bill.^^ Such a bill may be filed by 
 either plaintiff or defendant.*^ 
 
 § 464. The causes for which a bill of review may be 
 maintained are limited to these : 1st. There must be 
 error in law apparent upon the face of the decree ; or, 
 2d. The plaintiff must allege and prove the discovery 
 of new matter which could not have been used at the 
 time of making the decree, in consequence of the 
 party's ignorance that such matter existed. 
 
 § 465. When the bill of review is not founded on 
 error apparent on the decree, according to the English 
 practice, leave should be first obtained to file it ; and 
 leave is obtained on a petition. This practice prevails 
 in the United States Circuit Courts.^ In the Vir- 
 ginia State Courts, whatever may be the occasion of 
 the bill, leave may be obtained to file it upon a sim- 
 ple motion.^* 
 
 § 466. When the bill of review professes to be 
 founded on newly discovered evidence, it should be 
 accompanied by an afiidavit to the effect that such 
 evidence has been discovered since the decree, and 
 
 61 See II. Barb. Ch. Pr. 90. 
 
 62 See Otborne T. UsTier, 6 Bro. P. C. Tom. ed. 20, cited by Barbour, II. 
 Barb. Ch. Pr. 96. Thornton v. Stewart, 1 Leigh, 12S. 
 
 63 See Dexter v. Arnold, 5 Mason's C. C. K. 303. 
 
 61 See Lee't infante T. Braxton, 5 Call, 459 ; Williamion t. Ledbetter, 
 dc, 2 Munf. 521 ; Quarrier v. Carter' t representatives, 4 n. <t M. 243. 
 
BILLS OP REVIEW. 213 
 
 could not have been used at the time of the decree in 
 consequence of the party's ignorance that such matter 
 existed.*° 
 
 § 467. After the affirmance of a decree by the Court 
 of Appeals, (the highest appellate court in the State,) 
 a bill of review founded merely on error in the decree, 
 which is apparent on the face of the record, -will not 
 be received in the Virginia State Courts ;°'' and thi| 
 rule is so obviously right, that in the absence of deci- 
 sion on the point by the United States Supreme Court, 
 it may be affirmed with safety that the like practice 
 will prevail in the United States Circuit Courts. 
 
 § 468. In the Virginia State Courts, a bill of review 
 must be exhibited within three years after the final 
 decree sought to be reviewed ;^' and the fact that it is 
 so exhibited should appear on the face ,of the bill."' 
 An exception, however, to this rule, is made in favor 
 of infants, married women and lunatics, who are allowed 
 three years after the removal of their disability to file 
 a bill of review. In the United States Circuit Courts, 
 by analogy to the time allowed for appealing from a 
 decree, parties are usually allowed five years after the 
 rendition of a final decree in which to file a bill of 
 review f^ but it is within the discretion of these courts 
 to permit the filing of a bill of review after this period.'" 
 
 «5 Barnett & Go. v. Smiih & Co., 5 Call, 102. Qnme. Is this affidavit 
 necessary when a petition has been previously filed, aooompanxed by 
 such an affidavit ? 
 
 66 Gamphell v. Price, &c., 3 Munf. 227. See also Chancellor Taylor's 
 opinion in McCall v. Graham, dec, 1 H. <& M. 13. 
 
 6' Code of Virginia, chap. 179, sec. 5. 68 Ibid. 
 
 69 See Thomas v. Barvie't heirs, 10 Wheat. 150 ; also, Story's Laws U. 
 S., IL vol. p. 905. 
 
 70 So9 Thomas v. ITarvie's heirs, 10 Wheat. 150. 
 
214 SUIT IN EQUITY. 
 
 § 469. The Code of Virginia, ruling the practice in 
 Virginia State Courts, enacts that a court or judge 
 allowing a bill of review may award an injunction to 
 the decree to be reviewed.'^ 
 
 § 470. All the parties to the original bill ought to 
 be made parties to the bill of review, for it is a prin- 
 ciple of natural justice that no one ought to be affected 
 fcy any decree without his first being heard.^^ 
 
 § 471. In a bill of review, it is necessary to state 
 the former bill and the proceedings thereon ; the decree 
 and the point in which the complainant conceives him- 
 self aggrieved by it ; and the ground of law or new mat- 
 ter discovered upon which he seeks to impeach it;" 
 and, as we have already stated, when such bill is exhib- 
 ited in the Virginia State Courts, it must shew on its 
 face that it has been exhibited in proper time.''^ 
 
 § 472. The bill may pray simply that the decree 
 may be reviewed, and altered or reversed, in the point 
 complained of, if it has not been carried into execu- 
 tion ; but if the decree has been carried into execution, 
 the bill should also pray the further decree of the 
 court, to put the party complaining of the former de- 
 cree into the situation in which he would have been 
 if the decree had not been executed." 
 
 § 473. Defence. To a bill of review founded upon 
 alleged errors apparent on the decree, the usual mode 
 
 '1 Code of Virgmia, chap. 179, sec. 5. 
 
 -2 11. Barb. Ch. Pr. 94. Story's Eq. PI. 420. Cooper's Eq. PI. 95. 
 
 73 Mitf. PI. 38, II. Barb, Ch. Pr. 97, See also, Cooper's Eci. PL 95. 
 
 i< See section 468, ante, 
 
 75 Mitr, PI. 89. 
 
BILLS ot eeView. 215 
 
 of defence is to plead the former decree in bar of the 
 suit, and to object by demurrer ,to its being opened, 
 alleging, as a ground of demurrer, that there is no 
 error.^* 
 
 § 474. The defendant may also demur alone, or an- 
 swer ;" but it is laid down in the English books that a 
 bill of review upon the discovery of new matter is 
 seldom liable to demui'rer, for being exhibited only by 
 leave of the court, the ground of the bill is generally 
 ivell considered before it is brought.'^ This rule is 
 applicable wherever such prior leave to file the bill is 
 required ; and the court, before allowing it to be filed, 
 narrowly inspects its contents and "Weighs its merits : 
 yet it seems a demurrer will lie to a bill of review for 
 new matter not relevant, even though its relevancy 
 should have been considered "When leave was given to 
 file the bill.'' 
 
 § 475. An answer is rarely filed, save when the bill 
 alleges the discovery of new matter. Then, an answer 
 may be put in, controverting the fact that the matter 
 is newly discovered and alleging other matter which 
 may rebut the force of such newly discovered matter. 
 In the case of a bill of review, there is no farther 
 restriction upon the defendant as regards his answer, 
 than there would be if he were called on to answer an 
 ordinary original bill. 
 
 ■^ Coop, Eq. PI. 96. II. Barb. Ch. Pr. 98. 
 
 T Seo Mitf. 205. 
 
 ™ Mitf. PI. 206. 
 
 73 2 Atk, 40. II. Barb. Cb, Pr. 99. 
 
APPENDIX 
 
APPENDIX. 
 
 I. 
 
 Rules of Practice in Suits in Equity, adopted iy the Su-> 
 preme Court of the United States on the 2nd March, 
 1842, for the use of the United States Circuit Courts. 
 
 PRELIMINART REGULATIONS, 
 
 I. The circuit courts, as courts of equity, shall be deemed 
 always opefl for the purpose of filing bills, ans-ffsrs and other 
 pleadings, for issuing and returning mesne and final process 
 and commissions, a.nd for making and directing all interlocu- 
 tory motions, orders, rules, and other proceedings, preparatory 
 to the hearing of all causes upon their merits. 
 
 II. The clerk's office shall be open, and the clerk shall be 
 in attendance therein on the first Monday of every mouth, for 
 the purpose of receiving, entering, entertaining and disposing 
 of all motions, rules, orders, and other proceedings, which 
 are grantable of course and applied for, or had by the parties, 
 or their solicitors in all causes pending in equity, in pursu- 
 ance of the rules hereby prescribed, 
 
 III. Any judge of the circuit court, as well in vacation as 
 in term, may, at chambers, or on the rule days, at the clerk's 
 office, make and direct all such interlocutory orders, rules and 
 other proceedings, preparatory to the hearing Qf all causes 
 
220 KtJLBS OF PRACTICE, 
 
 upon their merits, in the same manner and with the same 
 effect as the circuit court could make and direct the same in 
 term, reasonable notice of the application therefor being first 
 given to the adverse party, or his solicitor, to appear and 
 show cause to the contrary at the next rule day thereafter, 
 unless some otlier time is assigned by the judge for the 
 hearing. 
 
 IV. All motions, rules, orders and other proceedings made 
 and directed at chambers, or on rule day at the clerk's office, 
 whether special or of course, shall be entered by the clerk in 
 an order book, to be kept at the clerk's office on the day 
 when they are made and directed — which book shall be open 
 at all office hours, to the free inspection of the parties in any 
 suit in equity, and their solicitors. And except in cases 
 where personal or other notice is specially required or directed, 
 such entry in the ordei; book shall be deemed sufficient notice 
 to the parties and their solicitors, without further service 
 thereof, of all orders, rules, acts, notices and other proceed- 
 ings entered in such order book, touching any and all the 
 matters in the suits, to and in which they are parties and 
 solicitors. And notice to the solicitors shall be deemed notice 
 to the parties for whom they appear and whom they repre- 
 sent, in all cases where personal notice on the parties is not 
 otherwise specially required. Where the solicitors for all the 
 parties in a suit reside in or near the same tftwn or city, the 
 judges of the circuit court may, by rule, abridge the time for 
 notice of rules, orders or other proceedings, not requiring 
 personal service on the parties, in their discretion. 
 
 V. All motions and applications in the olerk's office for the 
 issuing of mesne process and final process to enforce and exe- 
 cute decrees, for filing bills, answers, pleas, demurrers and 
 other pleadings; for making amendments to bills and an- 
 swers; for taking bills pro confesso; for filing exceptions, 
 and for other proceedings in the olerk's office, which do not 
 by the rules hereinafter prescribed, require any allowance or 
 order of the c6urt, or of any judge thereof, shall be deemed 
 mo'tions and applications, grantable of course by the clerk of 
 the court. But the, same may be suspended, or altered, or 
 j-escinded by any judge -of the court, upon special cause 
 fihown. 
 
 VI. All motious for rules or orders and other proceedings, 
 which are not grantable of course, or without notice, shall, 
 unless a different time be assigned by a judge of the court, be 
 
RULES OF PRACTICE. 221 
 
 made on a rule day, and entered in the order book, and shall 
 be heard at the rule day next after that on which the motion 
 is made, And if the adverse party, or his solicitor, shall not 
 then appear, or shall not show good cause against the same, 
 the motion may be heard by any judge of the court ex parte, 
 and granted, as if not objected to, or refused, in his dis- 
 cretion. 
 
 PBOCESS, 
 
 VII. The process of subpoena shall constitute the proper 
 mesne process in all suits in equity, in the first instance, to 
 require the defendant to appear and answer the exigency of 
 the bill ; and unless otherwise provided in these rules, or spe- 
 cially ordered by the circuit court, a writ of attachment, and 
 if the defendant cannot be found, a writ of sequestration, or 
 a writ, of assistance to enforce a delivery of possession, as the 
 case may require, shall be the proper process to issue for the 
 purpose of compelling obedience to any interlocutory or final 
 order or decree of the court. 
 
 VIII. Final process to execute any decree may, if the de- 
 cree be solely for the payment of money, be by a writ of 
 execution, in the form used in the circuit court in suits at 
 common law in actions of assumpsit. If the decree be for 
 the performance of any specific act, as, for example, for the 
 execution of a conveyance of land, or the delivering up of 
 deeds, or other documents, the decree shall, in all cases, pre- 
 scribe the time within which the act shall be done, of which 
 the defendant shall be bound without further service to take 
 notice J and upon affidavit of the plaintiff, filed in the clerk's 
 office, that the same has not been complied with within the 
 prescribed time, the clerk shall issue a writ of attachment 
 against the delinquent party, from which, if attached thereon, 
 he shall not be discharged, unless upon a full compliance with 
 the decree and the payment of all costs, or upon a special 
 order of the court or of a judge thereof, upon motion and 
 affidavit, enlarging the time for the performance thereof. If 
 the delinquent party cannot be found, a writ of sequestration 
 shall issue against his estate upon the return of non est in- 
 ventus, to compel obedience to the decree. 
 
 IX. When any decree or order is for the delivery of pos- 
 session, upon proof made by affidavit of a demand and refusal 
 to obey the decree or order, the party prosecuting the same 
 shall be entitled to a writ of assistance from the clerk of the 
 court. 
 
222 RULES OF PRACTICE. 
 
 Xi Every person, not being a party in any cause, who has 
 obtained an order, or in whose favor an order shall have been 
 made, shall be enabled to enforce obedience to such order by 
 the same process, as if he were a party to the cause ; and 
 every person, not being a party in any cause, against whom 
 obedience to any order of the court msi^ be enforced, shall be 
 liable to the same process for enforcing obedieiiee to such 
 order, as if he were a party in the cause. 
 
 SERVICE OF PROCESS. 
 
 XI. No process of subpoena shall issue fi'om the clerk's 
 ioffice in any suit in equity, until the bill is filed in the office^ 
 
 XII. Whenever a bill is filed, the clerk shall issue the pro- 
 cess of subpoena thereon, as of course, upon the application 
 of the plaintiff, which shall be returnable into the clerk's 
 ofl&ce the next rule day, or the next rule day but one, at the 
 election of the plaintiff) occurring after twenty days from the 
 time of the issuing thereof. At the bottom of the subpoena 
 shall be placed a memorandum, that the defendant is to enter 
 his appearafice in the suit in the clerk's office, on ol- before 
 the day, at which the writ is returnable ; otherwise, the bill 
 may be taken pro cortfesso. Wherie there are more than ohe 
 defendahts, a writ of subposna may, at the election of the 
 plaintiff, be sued out separately for each defendant, except in 
 the case of husband and wife, defendants, or a joint "subpoena 
 against all the defendants. 
 
 XIII. The service of all subpoenas shkll be by delivery of 
 a copy thereof by the officer serving the same, to the defend- 
 ant personally, or, in case of husband 'and wife, to the hus- 
 band personally, or by leaving a copy thereof at the dwelling 
 house or usual place of abode of each defendant,, with some 
 free white person, who is. a member or resident in the family. 
 
 XIV. Whenever any subpoena shall be returned not exe- 
 cuted as to any defendant, the plaintiff shall be entitled to 
 another subpoena, toties quoties, against such defendant, if he 
 shall require it, until due service is made. 
 
 XV. The service of all process, mesne and final, shall be 
 by the marshal of the district, or his deputy, or by some other 
 person specially appointed by the Court for that purpose, and 
 not otherwise ; in the latter case, the person serving the pro- 
 cess shall make affidavit thereof. 
 
ri,ULBS OF PllAOTICEt 'J-Za 
 
 XVI. Upon the return of the subpoena, as served and exe' 
 cuted upon any defendant, the clerk shall enter the suit upon 
 his docket as pending in the court and shall state the time of 
 the entry. 
 
 APPEARANCE. 
 
 XVII. The appearance day of the defendant shall be the 
 rule day, to v^hich the subpoena is made returnable ; provided 
 he has been served with the process twenty days before that 
 day; otherwise, his appearance day shall be the next rule day 
 succeeding the rule day when the process is returnable; 
 
 The apptfiarance of the defendant, either personally or by 
 his solicitor, shall be entered in the order book on the day 
 thereof by the clerk. 
 
 BILLS TAKEIm pro CONJESSO. 
 
 XVIII. It shall be the duty of the defendant, uiiless the 
 tinre shall be otherwise enlarged, for cause shown, by a judge 
 of the court upon motion for that purpose, to file his plea, 
 demurrer, or answer to the bill in the clerk's ofiEice, on the 
 rule day nest succeeding that of entering his appearance : in 
 default thereof, the plaintiff may, ■ at his election, enter an 
 order (as of course) in the Order book, that the bill be taken 
 pro confesso ; and thereupon the cause shall be proceeded in 
 ex parte, and the matter of the bill may be decreed by the 
 court at the next ensuing term thereof accordingly, if the 
 same can be clone without an answer, and is proper to be de- 
 creed ; or the plaintiff, if he requires any discovery or answer 
 to enable him to obtain a proper decree, shall be entitled to 
 process of attachment agaiilst the defendant, to compel an 
 answer; and the defendant shall not, when arrested upon 
 such process, be 'discharged therefrom, unless, upon filing his 
 answer, or otherwise complying with such order, as the court 
 or a judge thereof may direct, as to pleading to, or fully an- 
 swering the bill, within a period to be fixed by the court or 
 judge, and undertaking to speed the cause. 
 
 XIX. When the bill is taken pro confesso, the court may 
 proceed to a decree at the next ensuing term thereof, and Such 
 decree rendered shall be deemed absolute, unless the court 
 shall, at the ^ame term, set aside the same, or enlarge the 
 time for filing the answer, upon cause shown upon motion 
 and afSdavit of the defendant. And no such motion shall 
 be granted, rtnless upoh the payment of the costs of the 
 
224 BUtES OF rKAC'TlCE. 
 
 I 
 
 plaintiff in the suit up to that time, or such part thereof as 
 the court shall- deem reasonable, and unless the defendant 
 shall undertake to file his answer within such time as the 
 court shall direct, and submit to such other terms as the court 
 shall direct, for the purpose of speeding the cause. 
 
 FRAME OE BILLS- 
 
 XX. Erery bill, in the introductory part thereof, shall 
 contain the names, places of abode, and citizenship, of all the 
 parties, plaintiffs, and defendants, by and against whom the 
 bill is' brought. The form, in substance, shall be as follows : 
 " To the Judges of the Circuit Court of the United States 
 
 for the District of ■ -. A. B., of - — -, and a citizen of 
 
 the State of , brings this his bill against C. D., of ' , 
 
 and a citizen of the State of , and E. F., of , and a 
 
 citizen of the State of . And thereupon your orator 
 
 complains and says, that, &c." 
 
 XXI. The plaintiff, in his bill, shall , be at liberty to omit, 
 at "his option, the part, which is usually called the common 
 confederacy clause of the bill, averring a confederacy between 
 the defendants to injure or defraud the plaintiff; also what is 
 commonly called the charging part of the bill, setting forth 
 the matters or excuses, which the defendant is supposed to 
 intend to set up by way of defence to the bill ; also, what is 
 commonly called the jurisdiction clause of the bill, that the 
 acts complained of are contrary to equity, and that the de- 
 fendant is without any remedy at law ; and the bill shall not 
 be demurrable therefor. And the plaintiff may, in the narra- 
 tive or stating part of his bill, state and avoid, by counter 
 averments, at his option, any matter or thing, which he sup- 
 poses will be insisted upon by the defendant, by way of de- 
 fence or excuse, to the case made by the plaintiff for relief. 
 The prayer of the bill shall ask the special relief, to which the 
 plaintiff supposes himself entitled, and also shall contain a 
 prayer for general relief; and if an injunction, or a writ of 
 Be exeat regno, or any other special order pending the suit, is 
 required, it shall also be specially asked for. 
 
 XXII. If any persons, other than those named as defend- 
 ants in the bill, shall appear to be necessary or proper parties 
 thereto, the bill shall aver the reason, why they are not made 
 parties, by showing them to be without the jurisdiction of the 
 court, or that they cannot be joined without ousting the juris- 
 diction of the court as to the other parties. And as to per- 
 
UULES OF PRACTICE. ^■^<i 
 
 sons wlio are without the jurisdiction, and may properly he 
 made parties, the bill may pray, that prooess may issue to 
 inalje them parties to the bill, if they should come within the 
 jurisdiction. 
 
 XXIII. The prayer for process of subpoena in the bill shall 
 contain the names of all the ^lefendants named in the intro- 
 ductory part of the bill, and if any of thom are known to be 
 infants under age, or otherwise under guardianship, shall sta,te 
 the fact, so that the court miay take order thereon as justice 
 may require, upon the return of the process. If an injunc- 
 tion, or a writ of ne exeat regno, or any other special order 
 pending the suit, is asked for in the prayer for relief, that 
 shall be sufficient, without repeating the same in the prayer 
 for process. 
 
 XXIV. Every bill shall contain the signature of counsel 
 annexed to it, which shall be considered as an affirmation on 
 his part, that y-pon the instructions given to him and the case 
 laid before him, there is good ground for the guit, in the mari- 
 ner in which it is framed. 
 
 X2^V. In order to prevent unnecessary costs and expenses, 
 and to promote brevity, succinctness, and directness in the 
 allegations of bills and answers, the regular taxable costs for 
 every bill and answer shall in no case exceed the sum which 
 is allowed in the state court of chancery in the district, if 
 any there be ; but if there be none, then it shall not expeed 
 the sum of three dollars for every bill or answer. 
 
 SCANDAL AND IMPERTINENCE IN BILLS. 
 
 XXVI, Every bill shall be expressed in as brief and suc- 
 cinct terms as it reasonably can be, and shall contain no un- 
 necessary recitals of deeds, documents, contracts, or other 
 instruments, in hsec verba, or any other impertinent matter, 
 or any scandalous matter not relevant to the suit. If it does, 
 it may on exceptions be referred to a master, by any judge of 
 the court, for impertinence, or scandal, and if' so found by 
 him, the matter shalj be expunged at the expense of the 
 plaintiff, and he shall pay to the defendant all his costs in the 
 suit up to that time, unless the court, or a judge thereof shall 
 otherwise order. If the master shall report, that the bill is 
 not scandalous or impertinent, tlje defendant sljall be entitled 
 to all costs occasioned by the reference. 
 
226 RULES OF PRACTICE. 
 
 XXVII. No order shall be made by any judge for refer- 
 ring' any bill, answer, or pleading, or other matter, or pro- 
 ceeding depending before the court for scandal or imperti- 
 nence, unless exceptions are taken in writing and signed by 
 counsel, describing the particular passages which are consid- 
 ered to be scandalous or impertinent ; nor unless the excep- 
 tions shall be filed on or before the next rule day, after the 
 process on the bill be returnable, or after the answer or 
 pleading is filed, And such order, when obtained, shall be 
 considered as abandoned, unless the party obtaining the order 
 shall, without any unnecessary delay, procure the master to 
 examine apd report' for tlie same on or before the next suc- 
 ceeding rule day, or the master shall certify that further tjme 
 is necessary for him to complete the examination. 
 
 ^ AMENDMENT'S OF BILLS. 
 
 XXVIII. The plaintiff shall be at liberty, as a matter of 
 course, and without payment of costs, to amend his bill in 
 any matters whatsoever, before any copy has been taken out 
 of the clerk's ofiice, and in any small matters afterwards, such 
 as filling blanks, correcting errors of dates, misnomer of par- 
 ties, mis-description of premises, clerical errors, and generally 
 in matters of form. But if he amend in a material point, (as 
 he may do of course,) after a copy has been so taken, before 
 any answer or plea, or demurrer to the bill, he shall pay to 
 the defendant the costs occasioned thereby, and shall without 
 delay furnish him a fair copy thereof, free of expense, with 
 suitable references to the places where the same are to be 
 inserted. And if the amendments are numerous, he shall 
 furnish in like manner to the defendant, a copy of the whole 
 bill as amended, and if there be ijiore thap. one defenda'E(t, a 
 sopy shall be furnished to each defendant afiected thereby. 
 
 XXIX. After an answer, or plea, or demurrer is put in, 
 and before replication, the plaintiff may, upon motion or peti- 
 tion without notice, obtain an order froip any judge of the 
 court, to amend his bill on or before the next supceeding rule 
 day, upon payment of costs or without payment of costs, as 
 the court or a judge thereof inay in his discretion direct. 
 But after replica,tion filed, the plaintiff shall not be permitted 
 to withdraw it and to amend nis bill, exqept upon a special 
 order of a judge of the court, upon motion or petition, after 
 due notice to the other party, and upon proof by affidavit 
 that the same is not made for the purpose of vexation or 
 
RULES OF PRAOTICBi 227 
 
 delay, or that tlie matter of the proposed amendment is mate- 
 rial, and could not with reasonable diligence have been sooner 
 introduced into the bill, and upon the plaintiff's submitting 
 to such other terms as may be imposed by the judge for 
 speeding the cause. 
 
 XXX. If the plaintiff, so obtaining any order to amend hip 
 bill after answer^ or plea, or demurrer, or after replication, 
 shall not file his amendments or amended bill, as the case may 
 require, in the clerk's office, on or before the next succeeding 
 rule day, he shall be considered to have abandoned the same, 
 and the cause shall proceed as if no application for any 
 amendment had been made. 
 
 DEMUEEERS AND PLEAS. 
 
 XXXI. No demurrer or plea shall be allowed to be filed to 
 any bill, unless upon a certificate of counsel, that in his opin- 
 ion it is well founded in point of law, and supported by the 
 affidavit of the defendant, that it is not interposed for delay ; 
 and if a plea, that it is true in point of fact. 
 
 XXXII. The defendant may, at any time before the bill is 
 taken for confessed, or afterwards with the leave of the court, 
 demur or plead to the whole bill, or to part of it, and he may 
 demur to part, plead to part, and answer as to the residue ; 
 but in every case, in which the bill specially charges fraud 
 or combination, a plea to such part must be accompanied with 
 an answer fortifying the plea, and explicitly denying the 
 fraud and combination, and the facts on which the charge is 
 founded. 
 
 XXXni. The plaintiff may set down the demtirrer or plea 
 to be argued, or he may take issue on the plda, If, upon an 
 issue, the facts stated in the plea be determined for the de- 
 fendant, they shall avail him, as far as in law and equity they 
 ought to avaU him. 
 
 XXXIV. If upon thfe hearing, any demurrer or plea is 
 overruled, the plaintiff shall be entitled to his costs in the 
 cause up to that period, unless the court shall be satisfied that 
 the defendant had good ground in point of law or fact to in- 
 terpose the same, and it was not interposed vexatiously or for 
 delay. And upon the overruling of any plea or demurrer, 
 the defendant shall be assigned to answer the bill, or so much 
 thereof as is covered by the plea or demurrer, the next suc- 
 ceeding rule day, or at such other period as, consistently with 
 
228 EULBS OF PRACTICE. 
 
 justice and the rights of the defendant) the same can, in the 
 judgment of the courtj he reasonably done ; in default whereof, 
 the bill shall be taken against him, pro confesso, and the mat- 
 ter thereof proceeded in and decreed accordingly. 
 
 XXXV. If, upon the hearing, any demurrer or plea shall 
 be allowed, the defendant shall be entitled to his costs. But 
 the court may, in its discretion, upon motion of the plaintiflF, 
 allow him to amend his bill upon such terms as it shall deem 
 reasonable. 
 
 XXXVI. No demurrer or plea shall be held bad and over- 
 ruled upon argument, only because such demurrer or plea 
 shall not cover so much of the bill as it might by law have 
 extended to. 
 
 XXXVII. No demurrer or plea shall be held bad and over- 
 ruled upon argument, only because the answer of the defend- 
 ant may extend to some part of the same matter, as may be 
 covered by such demurrer or plea. 
 
 XXXVIII. If the plaintiff shall not reply to any plea, or 
 set down any plea or demurrer for argument, on the rule day, 
 when the same is filed, or on the next succeeding rule day, 
 he shall be deemed to admit the truth and sufficiency thereof, 
 and his bill shall be dismissed, as of course, unless a judge of 
 the court shall allow him further time for the purpose. 
 
 ANSWERS. 
 
 XXXIX. The rule, that if a defendant submits to answer 
 he shall answer fully to all the matters of the bill, shall no 
 longer apply, in cases where he might by plea protect himself 
 from such answer and discovery. And the defendant shall be 
 entitled in all cases by answer to insist upon all matters of 
 defence (not being niatters of abatement, or to the character 
 of the parties, or matters of form) in bar of or to the merits 
 of the bill, of which he may be entitled to avail himself by a 
 plea in bar; and in such answer he shall not be compellable 
 to answer any other matters than he would be compellable to 
 answer and discover upon filing a plea in bar. and an answer 
 in support of such plea, touching the matters, set forth in the 
 bill to avoid or repel the bar or defence. Thus, for example, 
 a bona fide purchaser for a valuable consideration, without 
 notice, may set up that defence by way of answer instead of 
 plea, and shall be entitled to the same protection, and shall 
 
RULES QF PRAOTICE. 229 
 
 not be compellable to make any further answer or discovery 
 of his title than he would be in any answer in support of 
 such plea. 
 
 XL. A defendant shall not be bound to answer any state- 
 ment or charge in the bill, unless specially and particularly 
 interrogated thereto ; and a defendant shall not be bound to 
 answer any interrogatory in the bill, except those interrogato- 
 ries, which such defendant is required to answer ; and where 
 a defendant shall answer any statement or charge in the bill, 
 to which he is not interrogated, only by stating his ignoranee 
 of the matter so stated or charged, such answer shall be 
 deemed impertinent. [Repealed by XCIII. Eule, post.^ 
 
 XLI. The interrogatories contained in the interrogating 
 part of the bill shall be divided as conveniently as may be 
 from each other, and numbered consecutively 1, 2, 3, &c.; and 
 the interrogatories which each defendant is required to answer 
 shall be specified in a note at the foot cf the bill, in the form 
 or to the effect following ; that is to say, — " The defendant, 
 (A. B.,) is required to answer the interrogatories numbered 
 respectively 1, 2, 3," &c.; and the office copy of the bill taken 
 by each defendant shall not contain any interrogatories except 
 those which such defendant is so required to answer, unless 
 such defendant shall require to be furnished with a copy of 
 the whole bill. ' 
 
 XLII. The note at the foot of the bill, specifying the in- 
 terrogatories which each defendant is required to answer, shall 
 be considered and treated as part of the bill, and the addition 
 of any such note to the bill, or any alteration in or addition 
 to such note after the bill is filed, shall be considered and 
 treated as an amendment of the bill. 
 
 XLIII. Instead of the words of the bill now in use, pre- 
 ceding the interrogating part thereof, and beginning with the 
 words " To the end, therefore," there shall hereafter be used 
 words in the form or to the effect following :, " To the end, 
 therefore, that the said defendants may, if they can, show 
 why your orator should not have the relief hereby prayed, and 
 may, upon their several and respective corporal oaths, and ac- 
 cordiilg to the best and utmost of their several and respective 
 knowledge, remembrance, information, and belief, full, true, 
 direct and perfect answer make to such of the several inter- 
 rogatories herein after numberiid and ^et forthj as by the not« 
 20 
 
^30 feuiiEs Of practice- 
 
 hfereunder written, they are respectively required to answer; 
 that is to Say,-^ 
 
 "1. Whether, &c. 
 
 "2. Whether," &c. 
 
 XLIV. A dfefendant shall be at liberty, by atisfrer, to de- 
 blin'e answering any interrogatory or part of an interrogatory, 
 from answeriiig Which he might have protected himself by 
 demurrer ; and he shall be at liberty so to decline, notwith- 
 standing he shall answer other parts of the bill, from which 
 he might have protected himself by demurrer. 
 
 XLV No special replication, to any answer shall be filed. 
 But if any matter allieged in the answer shall make it neces- 
 sary for the plaintiff tb amend his bill, he may have leave to 
 amend the same with or ivithout the payment of costs, as the 
 boiirt, or a judge thereof, may in his discretion direct. 
 
 XLVI; In every case where an amendment shall be made 
 after answer filed, the defendant shall put in a new or supple- 
 mental answer, on or before the next succeeding rule day after 
 that on which the amendment or amended bill is filed, unless 
 thS time therefor is enlarged or otherwise ordered by a judge 
 of the court ; and upon his default, the like proceedings may 
 be had as in cases of an omission to put in an answer. 
 
 PARTIES TO BILLS. 
 
 XL VII. In all cases where it shall appear to the court that 
 persons who might otherwise be deemed necessary or proper 
 parties to the Suit, cannot be made parties by reason of their 
 being out of the jurisdiction of the court, or incapable other- 
 wise of being made parties, nr because their joinder would 
 oust the j urisdiction of the court as to the parties before thb 
 court, thg court may in their discretion proceed in the cause 
 without making Such persons parties ; and in such cases the 
 decree shall be \^ithout prejudice to the rights of the absent 
 parties. 
 
 XL VIII. Where the parties on either side are very nu- 
 meroiis, and cannot, without manifest inconvenience and op- 
 pressive delays in the silit, be all brought before it, the court 
 in its discretion may dispehse with making all of them parties, 
 and may proceed in the silitj having sufficient parties before 
 it to represent all the adverse interests of the plaintiffs and 
 defendaiits ia the suit properly before it. But in such t'ases 
 
RULES 03? PRACTICE. 231 
 
 the decree, shall be without prejudice to the rights and claims 
 of all the absent, parties. 
 
 XLIX.In all suits concerning real estate, which is vested 
 in trustees by devise, and such trustees are competent to sell 
 and give discharges for the proceeds of the sale, and for the 
 vents and profits of the estate, such trustees shall represent 
 the persons beneficially interested • in the estate or the pro- 
 ceeds, or the rents and profits, in the same manner, and to the 
 same extent, as the executors or administrators in suits con- 
 c'erning personal estate represent the persons beneficially in- 
 terested in such personal estate; andiin such cases it shall not 
 be necessary to make the persons beneficially interested in 
 such real estate, or rents and profits, parties to the suit ; but 
 the court may, upon consideration of the matter on the hear- 
 ing,- if it shall so think ■ fit, order such persons to be made 
 parties. 
 
 L. In suits to execute the trusts of a will, it shall not be 
 necessary. to make the heir at law a party 3 but the plaintiff 
 shall be at liberty to make the heir at law a party, where he 
 desires to have the will established against him. 
 
 LI. In all cases in which the plaintiff has a joint and sev- 
 eral demand against several persons, either as principals or 
 sureties, it shall not be necessary to bring before the court, as 
 parties to a suit concerning such demand, all tlie persons liable 
 thereto ; but the plaintiff may proceed against one or more of 
 the pei-sons severally liable. 
 
 LII. Where the defendant shall, by his answer, suggest 
 that the bill is defective for want of parties, the plaintiff shall 
 be at liberty, within fourteen days after answer filed, to set 
 down the cause for argument upon that objection only ; and 
 the purpose for which the same is so set down shall be notified 
 by an entry, to be made in the clerk's order book, in the form 
 or to the effedt following ; (that is to say,) " Set down upon 
 the defendant's objection for want of parties." And where 
 the plaintiff shall not so set down his cause, but shall proceed 
 therewith to a hearing, notwithstanding an objection for want 
 of. parties taken by the an.=wer, he shall nof, at the hearing of 
 the cause, if the defendant's oljection shall then be allowed, 
 be entitled as of course, to .an ord, r fur liberty to amend his 
 bill by adding parties. But the court, if it thinks fit, shall 
 be at liberty to dismiss the bilL 
 
282 EULES OF PRACTICE. 
 
 LIII. If a defendant shall, at the hearing of a cause, ob- 
 ject, that a suit is defective for want of parties, not- having 
 by plea or answer taken the objection, and therein specified 
 by name or description the parties to whom the objection ap- 
 plies, the court (if it shall think fit) shall be at liberty to 
 make a decree saving the rights of the absent parties. 
 
 NOMINAL PARTIES TO BILLS. 
 
 Liy. Where no account, payment, conveyance, or other 
 direct relief is sought against a party to a suit, not being an 
 infant, the party, upon service of the subpoena upon him, need 
 not appear aijd answer the bill, unless the plaintifi' specially 
 requires him to do so by the prayer of his bill ; but lie may 
 appear and answer at his option ; and if he does not appear 
 a?jd ansp'er, he shall be bound by all the proceedings in the 
 cause. If the plaintifi' shall require him to appear and an- 
 swer, he shall be entitled to the costs of all the proceedings 
 against him, unless the court shall otherwise direct. 
 
 LY. Whenever an injunction is asked for by the bill to 
 stay proceedings at law, if the defendant do not enter his ap- 
 pearance and plead, demur, or answer the same within the 
 time prescribed therefor by these rules, the plaintifi" shall be 
 entitled as of course, upon motion without notice, to such in- 
 junction. But special injunctions shall be grantable only 
 upon due notice to the other party by the court i,n term, or 
 by a judge thereof in vacation, ^fter a hearing, which may be 
 ex parte, if the adverse party docs i\ot appear at the time and 
 place ordered. In every case where an injunction, either the 
 common injunction or a special injunction, is awarded in va- 
 cation, it shall, unless previously dissolved by the judge grant- 
 ing the same, continue until the next term of the court, or 
 until it is dissolved by some other order of the court. 
 
 BILLS OP EEVIVOR AND SIJPPLEMENTAL BILLS, 
 
 LVI. AVhenever a suit in equity shall become abated by 
 the death of either party, or by any other event, the same 
 inay be revived by a bill of revivor, or a bill in the nature of 
 a bill of revivor, as the circumstances of the case may require, 
 filed by the proper parties entitled to revive the same j 
 which bill may be filed in the clerk's oflBoe at any time ; and 
 upon suggestion af the facts the p'oper process of subpcena 
 shall, as of course, be issued by the clerk, requiring the pro^ 
 per represeutatives of the other party to appear ^nd show 
 
EULES OF PEACTieE. 288 
 
 cause, if any they have, why the cause should not be revived. 
 And if no cause shall be shown at the next rule day, which 
 shall occur after fourteen days from the time of the service of 
 the sane process, the suit shall stand revived, as of course. 
 
 LVII. Whenever any suit in equity shall become defective, 
 from any event happening after the filing of the bill (as, for 
 example, by a change of interest in the parties,) or for any 
 other reason, a supplemental bill, or a bill in the nature of a 
 supplemental bill, may be necessary to be filed in the cause, 
 leave to file the same may bo granted by any judge of the 
 court on any rule day, upon proper cause shown and due no- 
 tice to the other party. And if leave is granted to file such 
 supplemental bill, the defendant shall demur, plead or answer 
 thereto, on the next succeeding rule day after the supple- 
 mental bill is filed in the clerk's office, unless some other time 
 Shall be assigned by a j udge of the court. 
 
 LVIII. It shall not be necessary ip any bill of revivor or 
 supplemental bill, to set forth any of the statements in the 
 original suit, unless the special circumstances of the case may 
 require it. 
 
 ANSWERS. 
 
 LIX. Every defendant may swear to his answer before any 
 justice or judge of any court of the United States, or before 
 any commissioner appointed by any circuit court' to take tes- 
 timony or depositions, or before any master in chancery ap- 
 pointed by any circuit court; or before any judge of any court 
 of a State or Territory; 
 
 AMENDMENT OP ANSWERS. 
 
 LX. After an answer is put in, it may be amended as of 
 course, in any matter of form, or by filling up a blank, or cor- 
 recting a date, or reference to a document or other small mat- 
 ter, and be re-sworn, at any time, before a replication is put 
 in, or the cause is set down for a hearing upon bill and 
 answer. But after replication, or such setting down for a 
 hearing, it shall not be amended in any material matters, as 
 by adding new facts or defences, or qualifying or altering the 
 original statements, except by special leave of the court, or of 
 a judge thereof, upon motion and cause shown after due no- 
 tice to the adverse party, supported, if required, by affidavit. 
 And in every case where leave is so granted, the court, or the 
 judge, granting the same, may, in his discretion, require that 
 
234 EtTLES OF PRACTIci, 
 
 the same be properly engrossed and added as a distinct 
 amendment to the original answer, so as to be distinguishable 
 therefrom. 
 
 EXCEPTIONS TO , ANSWERS. 
 
 LXI. After an answer is filed 00 any rule day, the plaintiff 
 shall be allowed until the next succeeding rule day to file in 
 the clerk's ofiiee exceptions thfereto for insufiicieney, and no 
 longer, unless a longer time shall be allowed for the purpose, 
 upon cause shown to the court or a judge thereof; and if no 
 exception shall be filed theretd within that period, the answer 
 shall be deemed and taken to be suflicient. 
 
 LXII. When the same solicitor is employed for two or 
 more defendants, and separate answers shall be filed, or other 
 proceedings had by two or more of the defendants separately, 
 costs shall not be allowed for such Feparate answers or other 
 proceedings, unless a master, upon. reference to him, shall cer- 
 tify that such separate answers and other proceedings were 
 necessary or proper, and ought not' to have been joined to- 
 gether. 
 
 LXIII. Where exceptions shall be filed to the answer 
 for insiifBeiency, within the period prescribed by these rules, 
 if the defendant shall not submit to the same, and file an 
 amended answer, on the next succeeding rule day, the plain- 
 tifi' shall forthwith set them down for a hearing on the next 
 succeeding rule day thereafter, before a judge of the cuurt; 
 and shall enter, as of course, in the order book,, an order for 
 that purpose. And if he shall not so set down the same for 
 a hearing, the exceptions shall be deemed abandoned, and the 
 ailswef shall be deemed sufficient; provided, however, that 
 the court, or any judge thereof, may,. for good cause shown, 
 enlarge the time for filing exceptions, of for apswering the 
 same, in his discretion, upon such terms as he may deem rea- 
 isonable. 
 
 LXIV. If, .at the hearing, the exception shall be allowed, 
 the defendant shall be bound to put in a full and complete an- 
 swer thereto, on the next succeeding rule day ; otherwise the 
 plaintiff' shall, as of cotlrse, be entitled to talre the bill, so far 
 as the matter of such exceptions is concerned, as confessed, 
 or, at his election., he may have a writ of attachment to com- 
 pel the defendant to make a better answer to the matter of 
 exceptions; and the defendant, when he is in custody upon 
 
BtLSS «r PRACTrcfi. 236 
 
 suci writ, stall hot bo diSchargfcd thei-efrotn but hj an order 
 of the court, or of a judge thereof, upon his putting in such 
 answer and complying with such other terms as the court or 
 judge may direct, 
 
 LXV. If, upon argument^ the plaintiff's exceptions to the 
 answer shall be overruled, or the answer shall be adjudged in- 
 sufficient, the prevailing party shall be entitled to all the costs 
 occasioned thereby, unless otherwise directed by the court, or 
 the judge thereof, at the hearing upon the exceptions. 
 
 ,REPLICATIO^f AND ISSUE. 
 
 LXVI. Whenever the answer of the defendant shall not be 
 excepted to, or shall be adjudged or deemed sufficient, the 
 plaintiff shall file the. general replication thereto on or before 
 the next succeeding rule day thereafter; and in all cases 
 where the general replication is filed, the cause shall be deemed 
 to all intents and purposes at issue, without any rejoinder or 
 other pleading on either side. If the plaintiif shall omit or 
 refuse to file such replication within the prescribed period, the 
 defendant shall be entitled to an order, as of course, for a dis- 
 missal of the suit; and the suit shall thereupon stand dis- 
 missed, unless the court or a judge thereof, upon motion for 
 cause shown, allow a replication to be filed nwic pro tunc, the 
 plaiotiff submitting to speed the cause, and to such other 
 terms as may be directed. 
 
 TESTIMONY, HOW TAKEN. 
 
 LXVII. After the cause is at issue, commissions to take 
 testimony may be taken out in vacation as well as in term, 
 jointly by both parties, or severally by either party, upon in- 
 terrogatories filed by the party taking out the same, in the 
 clerk's office, ten days' notice thereof being given to the ad- 
 verse party to file cross-interrogatories before th ■ issuing of 
 the commission ; and if no cross-interrogatories are filed at the 
 expiration of the time, the commission may issue ex parte. 
 In all cases the commissioner or commissioners shall be named 
 by the court, or by a judge thereof. If the parties shall so 
 agree, the testimony may be taken upon oral interrogatories 
 by' the parties or their agents, without filing any written inter- 
 rogatories. 
 
 LXVIII. Testimony may also bo taken in . the cause after 
 it is at issue, by deposition, according to the acts of Congress. 
 
2S&' KULES OF PEACIIOE. 
 
 But in such case, if no notice is given to the adverse party of 
 tlie timo and place of taking the deposition, he shall, upon 
 jnotion and affidavit of ihe fact, be entitled to a cross-exam- 
 ination of the witnesses, either under a commission or by a 
 new deposition taken under the act of Congress, if a court or 
 a judge thereof shall, under all circumstances, deem it rea- 
 sonable. 
 
 LXIX. Three months, and no more, shall be allowed for 
 the taking of testimony after the cause is at issue, unless the 
 court or a judge thereof shall, upon special cause shown by 
 either party, enlarge the time ; and no testimony taken after 
 such period shall be allowed to be read in evidence at the 
 hearing. Immediately upon the return of the commissions 
 and depositions, containing the testimony, into the clerk's 
 office, publication thereof may be ordered in the clerk's office 
 by any judge of the court, upon due notice to the parties, or 
 it may be enlarged, as be may deem reasonable under all cir- 
 cumstances. But by consent of the parties, publication of the 
 testimony may at any time pass in the clerk's office, such con- 
 sent being in writing, and a copy thereof entered in the order 
 book, or endorsed upon the deposition or testimony. 
 
 TESTIMONY DE BENE ESSE. 
 
 LXX. After any bill filed, and before the defendant hath 
 answered the same, upon affidavit made that any of the plain- 
 tiff's witnesses are aged or infirm, or going out of the country, 
 or that any of them is a single witness to a material fact, the 
 clerk of the court shall, as of course, upon the application of 
 the plaintiff, issue a commission to such commissioner or com- 
 missioners as a judge of the court may direct, to take the ex- 
 amination of such witness or vitnesses de bene esse, upon 
 giving due notice to the adverse party of the time and place 
 of taking his testimony. 
 
 FORM OF THE LAST INTERROGATORY. 
 
 LXXI. The last interrogatory in the written interrogatories 
 to take testimony now comaionly in use, shall in the future be 
 altered, and stated in substance thus: "Do you know, or can 
 you set forth any other matter or thing, which may be a 
 benefit or advantage to the parties at issue in this cause, or 
 either of them, or that may be material to the subject of this 
 your examination, or the matters in question in this cause ? if 
 yea, set forth the same fully and at large in your answer." 
 
RULES OF PEACTICB. 237 
 
 CROSS BILL. 
 
 XXXII. Where a defendant in equity files a cross bill for 
 discovery only against the plaintiiF ir^ the original bill, the 
 defendant to the original bill shall first answer thereto, beforo 
 the original plaintifi' shall be compellable to answer the cross 
 bill. The answer of the original plaintiff to such cross bill 
 may be read and used by the party filing the cross bill, at the 
 hearing, in the same manner and under the same restrictions 
 as the answer, praying relief, may now be read and used, 
 
 REFERENCE TO AND PROCEEDINGS BEFORE MASTERS, 
 
 LXXIII. Every decree for an account of the personal es- 
 tate of a testator or intestate, shall contain a direction to the 
 master, to whom it is referred to take the same, to inquire and 
 state to the court, what parts, if any, of such personal estate 
 are outstanding or undisposed of, unless the court shall other- 
 wise direct. 
 
 LXXIV. Whenever any reference of any matter is made 
 to a master to examine and report thereon, the party at whose 
 instance or for whose benefit the reference is made, shall cause 
 the same to be presented to the master for a hearing on or be- 
 fore the next rule day succeeding the time when the reference 
 was made; if he shall omit to do so, the adverse puty shall 
 be at liberty forthwith to cause proceedings to be had before 
 the master, at the costs of the party procuring the reference. 
 
 LXXV. Upon every such reference, it shall be the duty of 
 the master, as soon as he reasonably can after the same is 
 brought before him, to assign a time and place for proceedings 
 in the same, and to give due notice thereof to each of the 
 parties or their solicitors; and if either party shall fail to ap- 
 pear at the time and place appointed, the master shall be at 
 liberty to proceed ex parte, or in his discretion to adjourn the 
 examination and proceedings to a future day, giving notice to 
 the absent party or his solicitor of such adjournment ; and it 
 shall be the duty of the master to proceed with all reasonable 
 diligence in every such reference, and with the least practica- 
 ble delay ; and either party shall be at liberty to apply to the 
 court or a judge thereof, for an order to the master to speed 
 the proceedings, and to make his report, and to certify to the 
 court or judge the reasons for any delay. 
 
 LXXVI. In the reports made by the master to the court, 
 po part of any state of facts, charge, affidavit, deposition, ex- 
 
238 RULES OF PEAOTICE, 
 
 amination, or answer, brought in or used before them, shall be 
 stated or recited. But sucb state of facts, charge, affidavit, 
 deposition, examination, or answer, shall be identified, speci- 
 fied, and referred to, so as to inform the court -^hat state of 
 facts, charge, affidavit,, deposition, examination, or answer, 
 were so brought in or used. 
 
 LXXVII. The master shall regulate all the proceedings in 
 every hearing before him, upon every such reference ; and he 
 shall have full authority to examine the parties in the cause 
 upon oath, touching all matters contained in the reference; 
 and also to require the production of all books, papers, wri- 
 tings, vouchers, and other documents applicable thereto ; and 
 also to examine on oath, viva voce, all witne^sses produced by 
 the parties before him, and to order the examination of other 
 witnesses to be taken, under a commission to be issued upon 
 his certificate from the clerk's office, or by deposition accord- 
 ing to the acts of Congress, or otherwise as herein after pro- 
 vided ;.cand also to direct the mode in which the matters re- 
 quiring evidence shall be proved before him j and generally 
 to do all other acts, and direct all other inquiries and proceed- 
 ings in the matter before him, which he may deem necessary 
 and proper to the justice and merits thereof, and the rights of 
 the parties. 
 
 LXXVIII. Witnesses, who live within the district, may, 
 upon due notice to the opposite party, be summoned to appear 
 before the commissioner appointed to take tesfimonj, or be- 
 fore a master or examiner appointed in any cause, by subpoena 
 in the usual form, which may be issued by the clerk in blank, 
 and filled up by the party praying the. same, or by the com- 
 missioner, master, or examiner, requiring the attendance of 
 the witnesses at the time and place specified, who shall be 
 allowed for attendance the same compensation as for attend- 
 ance in court; and if any witnesses shall refuse to appear, or 
 to give evidence, it shall be deemed a contempt of the court, 
 which being certified to the clerk's office by the commissioner, 
 master, or examiner, an attachment may issue thereupon by 
 order of the court or of any judge thereof, in the same man- 
 ner as if the contempt were for not attending, or for refusing 
 to give testimony in the court. But nothing herein containel 
 shall prevent the examination of witnesses vim voce when 
 produced in open court, if the court shall in its discretion 
 deem it advisable. 
 
ETTLES 'tfP PEACirCE- 239 
 
 LXXIX. AH parties accounting before a master shall bring 
 in their res pective accounts in the form of debtor and cred- 
 itor ; and any of the other parties, who shall not be satisfied 
 with the accounts so brought in, shall be at liberty to exam- 
 ine the accounting party viva voce, or upon interrogatories 
 in the master's office, or by deposition, as the master shall 
 direct. 
 
 LXXX. All affidavits, depositions, and documents, which 
 have been previously ma;de, read, or used in- the court, upon 
 any proceeding in any cause or matter, may be used before 
 the master. 
 
 LXXXI. The master shall be at liberty to examine any 
 creditor or other person coming in to claim before him, 
 either "upon written interr9gatories, or viva voce, or in both 
 modes, as the nature of the case may appear to hini to require. 
 The evidence upon such examination shall be taken down by 
 the master, or by some other person by his order and in his 
 presence, if either party requires it, in order that the same 
 may be used by the court, If necessary. 
 
 LXXXII. The circuit courts may appoint standing masters 
 in chancery in their respective districts, both the judges con- 
 curring in the appointment; and they may also appoint a 
 master pro hac vice in any particular case. The compensa- 
 tion to be allowed to every master in chancery for his services 
 in any particular case shall be fixed by the circuit court in its 
 discretion, having regard to all the circumstances thereof; 
 and the compensation shall be charged upon and borne by 
 such . of the parties in the cause, as the court shall direct. 
 The master shall not retain his report as security for his com- 
 pensation : but when the compensation is allowed by the court, 
 he shall be entitled to an attachment for the amount against 
 the party, who is ordered to pay the same, if, upon notice 
 thereof, he does not pay it within the time prescribed by the 
 court. 
 
 EXCEPTIONS TO REPORT OF MASTER. 
 
 LXXXIII. The master, as soon as his report is ready, shall 
 return the same into the clerk's office, and the day of the re- 
 turn shall be entered by the clerk in the order book. The 
 parties shall have one month from the time of filing the re- 
 
240' KULES OF PRACTICE. 
 
 port, to file exceptions thereto; and if no exceptions are 
 within that period filed by either party^ the report shall stand 
 confirmed on the next rule day after the month is expired. 
 If exceptions are filed, they shall stand, for hearing before the 
 court, if the court is then in session, or if not, then at the 
 next sitting of the court, which shall be held thereafter by 
 adjournment or otherwise. 
 
 LXXXIV. And in order to prevent exceptions to reports 
 from being filed for frivolous causes, or for mere delay, the 
 party, whose, exceptions are overruled) shall, for every excep- 
 tion overruled, pay costs to the other party, and for every 
 exception allowed, shall be entitled to costs — the costs to be 
 fixed in each case by the court, by a standing rule of the cir- 
 cuit courti 
 
 DECREES. 
 
 LXXXV. Clerical mistakes in decrees, or decretal brdeJ-s, 
 or errors arising from any accidental slip or omission, may, at 
 any time before an actual enrolmeut thereof, be corrected by 
 order of the court or a judge thereof, upon petition, without 
 the form or expense of a re-hearing. 
 
 LXXXVIi In drawing up decrees and orders, neither the 
 bill, nor answer, nor other pleadings, nor any part thereof, nor 
 the report of any master, nor any other prior proceeding, 
 shall be recited or stated in the decree or order ; but the de- 
 cree and order shall begin in substance as follows: "This 
 cause came on to be heard (or to be further heard, as the case 
 may be,) at this term, and was argued by counsel; and there- 
 upon, upon consideration thereof, it was ordered, adjudged 
 and decreed, as follows, viz :" [Here insert the decree or order.] 
 
 GUARDIANS AND PROCHEIN AMIS. 
 
 LXXXVIT. Guardians ad litem to defend a suit may be 
 appointed by the court, or by any judge thereof, for infants or 
 other persons, who are under guardianship, or otherwise inca- 
 pable to sue for themselves ; all infants and other persons so 
 incapable, may sue by their guardians, if any, or by theirpro- 
 chein ami, subject, however, to such orders as the court nsay 
 direct for the protection of infants and other persons. 
 
 LXXXVIII. Every petition for a re-hearing shall contain 
 the sp^ial matter br (jiiusie in which ^oh re-hearin'g is applied 
 
RULES OF PRACTICE. 241 
 
 for, shall be signed by counsel, and the facts therein stated, if 
 not apparent on the record, shall be verified by the oath of 
 the party, or by some other person. No re-hearing shall be 
 granted after the term at which the final decree of the court 
 shall have been entered and recorded, if an appeal lies to the 
 Supreme Court. But if no appeal lies, the petition may be 
 admitted at any time before the end of the next term of the 
 court, in the discretion of the court. 
 
 LXXXIX. The circuit courts (both judges concurring . 
 therein) may make any other and further , rules and regula- 
 tions for the practice, proceedings and process, mesne and 
 final, in their respective districts, not inconsistent with the 
 rules hereby prescribed, in their discretion j and from time to 
 time alter and amend the same. 
 
 XCi In all cases, where the rules prescribed by this court, 
 or by the circuit court, do not apply, the practice of the cir- 
 cuit court shall be regulated by the present practice of the 
 High Court of Chance^ in England, so far as the same may 
 reasonably be applied. Consistently with the local circumstances 
 and local convenience of the district, where the court is held, 
 not as positive rules, but as furnishing juSt analogies to regu- 
 late the practice. 
 
 XCI. Whenever under these rules an oath is or may be re- 
 quired to be taken, the party may, if conscientiously scrupu- 
 lous of taking an oath, in lieu thereof, make solemn afcma- 
 tion to the truth of the facts stated by him. 
 
 XCII. These rules shall take eflFeot, and be of force, in all 
 the circuit courts of the United States, from and alter the 
 first day of August next ; but they may be previously adopted 
 by any circuit court in its discretion ; and when and as soon 
 as these rules shall so take effect, and be of force, the Kules 
 of Practice for the circuit courts in equity suits, promulgated 
 and prescribed by this court in March, 1822, shall henceforth 
 cease, and be of no farther force or effect. And the clerk of 
 this court is directed to have these rules printed, and to trans- 
 mit a printed copy thereof, duly certified, to the clerks of the 
 several courts of the United States, and to each of the judges 
 thereof. 
 
 [ The foregoing rules of practice were adopted by the Su- 
 preme Court of the United States at its January term, 1842. 
 21 
 
242 fetLES 0* PRACTICE. 
 
 Subsequently, at the December term, 1850^ the 40th ruley 
 preeediilg, was repealed by the foUowing'f] 
 
 XCIII. Ordered, that tire fortieth rule heretofore adopted 
 and promulgated by this Court as one of the rules of prac- 
 tice in suits in equity in the Circuit Courts, be and the same 
 is hereby repealed- and annulled. And it shall not hereafter 
 be necessary to interrogate a defendant specially and particu- 
 larly upon any statement in the bill, unless the complainant 
 desire to ^o so to obtain a discovery. 
 
II, 
 
 Bummavy qf decisions affeetmg questions of Equity practice 
 and pleading, made by the Supreme Court of Appeals qf 
 Virginia. 
 
 ANSWERS. 
 
 1. Jf a cause conje on upon bill and answer, tlje latter must 
 be considered as true in all its parts, Kennedy v. Baylor, X 
 Wasi. 162. 
 
 2. If a defendant, by his answer, admit that certain goods 
 were to be charge4 to hinj, upon certain conditions, and this 
 be the only evidence in support of such charge, it ought to be 
 made upon the terms of that admission only. Kerr <& Co. v. 
 Love, 1 Wash. 172. 
 
 3. An executor, when called upou to account, is not perT 
 mitted to swear himself iuto a title to part of his testator's 
 estate. Bechwith v. Butler et al., 1 Wash. 224. 
 
 4. The answer of a defendant in Chancery, is not evidence 
 where it asserts a right affirmatively in opposition to the plain- 
 tiff's demand. In such case, he is as much bound to establish 
 it by indifferent testimony, as the plaintiff is to sustain his 
 bijl. Ibid- Paynes v. Coles, 1 Munf. 373. 
 
 5. The testinjony of one witness, without corroborating cir- 
 cumstances, is not sufficient to outweigh the answer when re- 
 sponsive to the bill. Holmes, Ex'or v. Smock, 1 Wash. 389. 
 See Chapman v. Turner, 1 Call, 280. 
 
 6. The answer of one defendant in Chancery is not evi- 
 dence against another. 1 Wash. 889. 
 
 7. If an answer in Chancery be contradicted by evidence 
 in several iniportant points, it is deprived of that weight which 
 is allowed to answers by tlje rules of the court of equity, 
 Gountz V. Geiger, 1 Call, 190. 
 
 8. The answer of a defendq,nt in Chancery, when responsive 
 to the bill, is conclusive, unless disproved. Maupin v. Whit- 
 ing, 1 Call. 224; 2 Call, 229; 2 H. & M, 393; 2 Mupf. 43, 
 
 9. Where a discovery is sought by the bill, a responsive an- 
 swer is clearly entitled to credit. Chapman v. Turner, 1 
 Call, 280. 
 
244 ANSWERS. 
 
 10. When the allegations of the bill are denied by the an- 
 swer, and not proved by the evidence adduced on the part of 
 the plaintiff, the court of Chancery on hearing the cause ought 
 not to direct an issue to try the points in controversy, but 
 should dismiss the bill. Pryor v. Adams, X Call, 382. 
 
 11. The testimony of one positive witness, supported by 
 strong circumstances, is sufficient to overthrow an answer. 
 BuUbcJe V. Goodall, 3 Call, 44. 
 
 12. If the answer deny imposition, and be supported by a 
 commissioner's report, and acknowledgments by the plaintiff, 
 it will not be set aside by evidence of loose conversations of 
 parties, and conjectures of witnesses. Harris v. Magee, 3 
 Call, 502. 
 
 13. The answer of a defendant positively denying a fact 
 charged in the bill, ought not to be outweighed by testimony 
 not equally positive, on the other side. The Auditor v. John- 
 son's Ex'x., 1 Hen. & Munf. 537. 
 
 14. Where a bill of review has been dismissed, on the 
 ground that it ought not to have been allowed, the decree not 
 being final, the complainant in that bill (being defendant to 
 the original suit) is not authorized, in his subsequent defence, 
 to make use of the answer to the bill of review. Ellzey v. 
 iajie's Ex'x, 4 Munf. 66. 
 
 15. An evasive answer (though not excepted to as such) 
 outweighed by the testimony of one witness and circum- 
 stances. YHlkim V. Woodjin, Adm'r, 5 Munf. 183. 
 
 16. A clerk stating in the transcript of the record, that 
 certain answers, which are filed and cppied in such transcript, 
 were not noticed by the court, is not t^o be relied upon by the 
 appellate court, if the contrary may be inferred from the de- 
 cree itself. PicJcett et wx. v. Chilton, 5 Munf. 467. 
 
 17. If the caption of the decree name as defendants to the 
 case certain persons whose aijswers are filed, and the decree 
 state that the cause was heajd upon, the bill, answers and ex, 
 hibits, it may be inferred that the answers of those persons 
 were noticed by the court, Ihid. 
 
 18. The effect of the omission of a replication to an answer 
 is that all the allegations in such answer are admitted to be 
 true. Ihid. See Kennedy v- Baylor, 1 Wash. 163. 
 
 19. The question as to the admissibility and effect of the 
 defendant's answer to a bill to set aside a will as evidence on 
 
ANSWEKS. 245 
 
 tlie trial of the issue devisavit vel non, considered by Oabell 
 and Stanard, J. Kinclieloe v. Kincheloe, 11 Leigh, 393. 
 
 20. It is a rule in equity that the answer of d defendant 
 denying the allegations of the bill must be taken as true un- 
 less disproved by two witnesses, or by one witne.ss and circum- 
 stances in his support; it is not in the power of the plaintiff 
 
 •to make his case an exception to this rule by stating in his 
 bill that he expects to prove its allegations, and disclaiming a 
 discovery from the defendant. Thornton v. Gordon, &c., 2 
 Eob. 719. 
 
 21. A defendant by his answer admits, that certain goods 
 were to be charged to him upon' certain conditions, and this is 
 the only evidence of such charge ; it ought to be made upon 
 the terms of that admission only. Kerr & Co.y. Love, 1 
 Wash. 172. 
 
 22. If a defendant called upon to account, for sales of cer- 
 tain public securities, denies the receipt of them, averring, 
 that the proceeds were accounted for to the plaintiff "as 
 would appear by the accounts and receipts' annexed to the an- 
 swer," such accounts and receipts ought to be produced, or if 
 required, interrogatories respecting them should be, answered 
 Ola^ V. Williams et al., 2 Munf 105; 
 
 23. A bill of injunction to stay proceedings oh a judgment) 
 charges the plaintiff at law, With having failed to do an act, oft 
 which the equity of his claim depends, his Smswer takes no 
 notice of that allegatioh ; this will be considered by the court, 
 on the hearing, as an admission that he has not done the act 
 in question, and will decr^fe against him without any exception 
 to the answer, or any interlocutory order, taking the bill for 
 confessed in part. Page's Ex'or. v. Winstoris Adm'r, 2 
 Munf 298. See opinion of Judge Carr in 4 Rand. 457. 
 
 24. If the plaintiff in equity call upon the defendant, as 
 assignee of a bond, to say whether he had notice of the con, 
 sideration thereof, when he received the money due thereon* 
 and in his answer he say that he had no such notice, when he 
 took the assignment, the answer is not to be considered as ad- 
 mitting notice, at the time he received the money. Edgar v. 
 Bonnally et al, 2 Munf. 387. 
 
 25. If the plaintiffs in equity charge in their bill, that a 
 deed of marriage settlement, under which they claim, was ex- 
 ecuted before the marriage, though recorded afterwards ; it be- 
 ing also expressed in the recital of the deed, that the same iB 
 
246 ANSWERS. 
 
 made in contenijjiation of the marriage shortly intended to be 
 solemnized, &o, and that allegation be not denied or noticed 
 in the answer, it must be considered as admitted to be true 
 without further proof. Scott et ux. v. Gibbon & Co., 5 
 Munf. 86. See Judge Carr's opinion in 4 Eand. 457. 
 
 26. Where the answer of a defendant omits to notice some 
 of the allegations of the bill, and replies to others, the allega- 
 tions not noticed are not to be considered as admitted. Cole- 
 man V. Lyne's Ex' or, 4 Kand. 454. 
 
 27. If a defendant, in his answer, admit that a slaye claimed 
 by him as a gift, was always in possession of the donor, he 
 cannot be allowed to give evidence that the dOnee, had the 
 possession, for such evidence varies from the defendant's ad- 
 missions. Shirley v. Long, 6 Rand. 764. Std gusere. 
 
 28. A bond executed by B. to C. is assigned by C. to W. 
 who brings suit on it against B., recovers judgment, and sues 
 out execution without effect, then C. the obligee files a bill in 
 Chancery in county court against B. the obligor and others, to 
 set aside a conveyance of B. of land, on the ground of fraud, 
 alleging that he has paid his assignee W. the amount due on 
 
 _ his judgment against B. and so claims to stand in W.'s place, 
 and to have the benefit of his judgment. The defendants an- 
 swering deny fraud, but neglect the remainder of the allega- 
 tions, and these allegations are not proven. The county court 
 sets aside the deed as fraudulent, and decrees a sale of the 
 whole land to satisfy B.'s claim; on appeal to Circuit court, 
 the decree is reversed and the bill dismissed, there bein^ no 
 proof of the alleged payments, and so plaintiff does not ap- 
 pear to be a creditor by judgjnent. The decree of the county 
 court is erroneous, for the allegations of payment made by 
 plaintiff, though not denied by the answer, were not thereby 
 admitted, but ought to have been proved. The Chancellor's 
 decree is also erroneous in dismissing the bill for want of such 
 proof J he should have retained the cause, or remanded it to 
 the county court, to give plaintiff opportunity to adduce the 
 proof. Cropper v. Burtons et ah., 5 Leigh, 426. 
 
 29. The answer of one joint partner in the name of both, 
 deemed sufficient, the plaintiff having filed a general replica- 
 tion and taken no steps to compel an answer from the other 
 partner. Freelands v. Royall et ah, 2 Hen. & Munf. 575. 
 
 30. Where the answer of the defendant omits to notice 
 Bome of the allegations of the bill, and replies to others, plain- 
 
ANSWERS. 247 
 
 tiff may except to the answer as insufficient. Coleman v. 
 Lyni^s Ex'of, 4 Eand. 454. 
 
 31. An answer cannot be excepted io as insufficient, after 
 replication. Ihid. But see sec. 183, p, 79, ante. 
 
 32. If matter appear in the answer of the defendant in 
 equity which is nowise alleged in the bill, it cannot justify a 
 decree for plaintiff against defendant, though it might have 
 been ground for such decree if it had been alleged in the bill. 
 Per Brochenhrough, J. Eib Y. Martin, 5 Leigh, 132. 
 
 33. An answer in Chancery admits the allegations in plain- 
 tiff's bill, but the certificate thereto, does not appear to have 
 been made by a justice of the peace, or by any person em- 
 powered to administer the oath; defendant dies; this paper be- 
 ing filed in the clerk's office, will not be considered the answer 
 of the party, nor evidence in the cause. Stitlingtons v. 
 Brown et ah., 7 Leigh, 271. 
 
 34. Case in which the defence of usury, relied on to defeat 
 the plaiintiff's whole claim, was held to be Well made in the 
 answer. Smith v. Nicholas, kc, 8 Leigh, 330. 
 
 85. No rule is better settled, than that an answer of an in- 
 fant by guardian ad litem cannot be read against him at all, 
 for any purpose, Per Baldwin, J. Bank of Alexandria v. 
 Patton, &c., 1 Kob. 500. 
 
 36. An answer to a bill of discovery is sufficient, when it 
 shows the defendant is protected from making the discovery 
 sought by the bill. Northwestern Bank v. Nelson, 1 Grat. 
 108. 
 
 37. If an answer contain impertinent or scandalous matter, 
 it will be referred to a commissioner, to expunge such matter 
 at the costs of the party filing the answers. ( Ch. Taylor.^ 
 Mason v. Mason, 4 Hen. & Munf 414.* 
 
 • This, thosgh not a decision of the Court of Appeals of Virginia, is 
 here inserted because it states accurately the practice in this respect, in 
 courts of equity. Here follows the answer in Slason v. Mason which was 
 referred to the commissioner by Chancellor Taylor : 
 
 ANSWER. 
 
 " If Abraham Barnes Thompson Mason can address the hon. court under 
 the title of orator, the clumsy clown James W. Wallace can do so too. Well 
 then your orator asks the hon. court if Mrs. Elizabeth Mason (whose hon- 
 esty and integrity will sound high in heaven) (and on earth where she is 
 known,) is prorerbial for too delicate a sense of justice and honor by 
 
248 
 
 ANSWERS. 
 
 38. The defence of a puroliaser for valuable consideration 
 without notice may be made by answer as well as by plea. 
 Donnel et al. v. King's heirs et devisees, 7 Leigh, 393. 
 
 39. A defendant in Chancery in Virginia, may at the same 
 time, answer and demur to the same matter in the bill. Dis- 
 seniiente, Tucker P. Basset's Adm'r &c. v. Cunningham's 
 Adm'r, 7 Leigh, 402. 
 
 which she has injured her finances, nay brought herself from a sufficiency 
 to want, I ask if she kept in her own possession the books keeping the 
 accounts of the estate of James Wallace and Thompson Mason dec'd, how 
 can the orator A, B. T. Mason know that there is a balance due from the 
 one estate to the other? with what propriety can he accuse a character 
 like Mrs. Mason's of embezzlement ? How indelicate to such refined feelings 
 as I presume the court to possess, will come such a charge against a father's 
 widow. — Test their souls by analysis, will not A. B. T. Mason be tound all 
 caput mortuum ? Mrs. Mason's like the diamond exposed to heat, no 
 residuum? Your orator is nd lawyer but follows another trade; is a dull 
 plain man, a mere Tom Bowlin ; and often gives offence where be means 
 respect. Being clumsy and heavy in words, he knows no laws but those of 
 honest integrity and has no guide but justice. It appears to him that if 
 M!rs. Mason used the tobacco (but does not believS she used one pipe full) 
 that she Mrs. Mason the adm'x. is propria persona the responsible person. 
 The prayer of the orator A. B. T. Masbn, evein admitting the embezzle- 
 ment, is a prayer to visit the sins of the parent upon the child, i. e. if the 
 descendants of James Wallace are made defendants agreeable to the wish 
 of the orator A. B. T. Mason. 
 
 The character of Thompson Mason dcdeasecJ I revere. He appears to me 
 from the best of my memory to have possessed too much soul; too much 
 native honesty for the world he lived in — a just remark to his honorable 
 manes. ^ 
 
 To the best of my knowledge my brother Kobt. Wallace clothed me 
 generally and gave me what pocket money t got. From the most mature 
 reflection I am fully satisfied that I am not indebted to the estate of 
 Thompson Mason one cent. The orator A. B. T. Mason in his prayer to 
 the bon. court says Thompson Masori retained tobacco as an indemnity 
 against his disbursements, (I am not disposed t6 believe the assertions 
 of A. B. T. Mason) but let us take his word for it, for I suppose that he 
 knew not that such an acknowledgment is equal to a receipt in full. Let 
 him then prove what T. Mason's et'or did with the tobacco. Se says Mrs- 
 Mason used it, let him then prove it; even then the orphan proves his 
 reimbursements, Thompson Mason dying with full indemnity in his hands. 
 The oratoi- A. B. T. Mason says Mrs. Mason detains the books of the 
 estate. Without knowledge then on the subject he roundly asserts a great 
 balance. Pray unde derivatur such information ? Does it come from Terra 
 
ANSWERS. 249 
 
 40. Defendant's demurrer to a bill being overruled, he may 
 file any sufficient answer. Northwestern Bank v. Nelson, 1 
 Grat. 108. 
 
 41. When a defendant will be allowed to, amend his an- 
 swer in order to plead the statute of limitations. White v, 
 Turner's Adm'r, 2 Grat. 502. 
 
 del Fuego, Labrador, Botany bay; or comes it fresh from the lapacioas 
 mouth of the white bear of Missouri? Mrs. MasoD was compelled to sell 
 her dowpr in a thousand or twelve hundred acres of land I believe to S. T, 
 Mason for the pitiful sum of £100 to buy even a bed to Jie on at the sale of 
 Thompson Mason: does this smell of embezzlement of toljaeoo? does it 
 shew phe was fijll handed or poor indeed? It is the opiniop of J. W. Wal- 
 lace that if any fr^ui^ has been practised, it was not by the but too honejt 
 B. Mason, but by the orator A. B. T. Mason. A long life of virtue, honesty 
 and religion will fully exculpate Mrs. Mason. Let the orator A. B. T. 
 Mason put his hand on his heart if any there be in his breast and say " I 
 never did but fairly." There was a paper from your court served on me 
 accufiing me of contempt to tbe oourt. I am innocent of such charge. 1 
 never said, acted or thought with any such design; to be plain, I know no 
 more of your court than I do of the hydrogaphy of the moon and have 4? 
 little design to insult the one as navigate the waters of the other. 
 
 Articlea in the Sill of J,. jB. T. Mason, 
 
 1. The orator says that J. Wallace died in 1776 having made a will, 
 Ans. Grant it, but I don't know the date of his death. . 
 
 2. That T. Mason married the widow of J. Wallace in 1778. 
 Ans. Grant it, but I know not the date of the marriage. 
 
 3. £. Mason was ex'x. or adm'x. of J. Wallace. 
 
 Ans. I always heard an4 belieye she acted for the estate of J, Wallace 
 before her marriage with T. Mason. 
 
 4. T. Mason made disbursements for the est. of J. Wallace. 
 An^. Ignorant on my part. 
 
 5. Thompson Mason died possessed of tobacco bonds to indemnify him- 
 self for disbursements made for J. Wallace's estate; 
 
 Ans. Ignorant on my part, but the orator A. B. T. Mason says he did. 
 Now court, Jxear me ; whatljecame of this tobacco ? Cannot you give to the 
 orator A. B. T. Mason an anti-tobaccq dose to work him tho orator up- 
 wards, to work him the orator downwards, and make him the orator dis- 
 gorge hogsheads of tobacco from both ends. 
 
 6. The estate of J. Wallace divided among his children. 
 
 Ans. I got I believe as much as the other children in negro property. 
 
 CoMJTEST. T. Mason lived and died largely in debt. Court, is it reasona- 
 ble that he would sell his own produce and tobacco for the support of the 
 children of J. Wallace and do it with a full conviotioijof an injury to his 
 own children when he had the tobe.pcp of J. Wallace's estate in his own 
 
?50 niJM, 
 
 42. 4- defendant in default for want of an answer fijes a 
 demurrer to the bill which is overruled ; he is not ei^titled to 
 ^wo months in whieh to file his answer. Reynolds v. The 
 Bank of Virginia, 6 Grrat. 174. 
 
 43. Where plaintiff comes into equity on the ground of dis- 
 covery, the whole answer is to be read, if it is used at all, as 
 ^he testimony of a witness; and no part of it, pertinent to the 
 discovery, is to be rejected because it is affirmative matter in 
 avoidamoe of that which is admitted to be true. But though 
 the answer is tq be read, it is subject to be discredited, in the 
 ^anje' manner as the testimony of any other witness. Lyons 
 V. MilUr, 6 Grat. 427. 
 
 44. It is the righ); of a defendant in equity to file his an- 
 swer at any time before a final decree in a cause. Bean, &c. 
 V. Simmons, 9 Grat, 389. • 
 
 45. Queere. "Whether if a decree settling the principles of 
 the cause, though interlocutory, had been entered in the order 
 book and the orders had been signed by the judge; the- de- 
 fendant would have been eatjtled, at the same term, or at 
 any time previous to the fiijal hearing of the cause, to file his 
 answer. Ibid. 
 
 BILLS. 
 
 1. A bill exhibited in the High Court of Ghanjery, against 
 the Attorney General, as representing the Commonwealth, but 
 not requiring him to apswer on oath, was, in this case, re- 
 ceived as equivalent to a petition to tlf3,j; court. Attorney 
 General v. Turpin, 3 Hen. & Munf 548, 
 
 bands kept up forsooth for indemnity — would he not sell for their use, 
 their own tobacco ? 
 
 Oh ! Jonah, why didst thou swallow the whale? 
 
 FAuqniBR, TO wit : 1807, May 1st. 
 
 ^ilLis day Jas. W. Wallace appeared before me, a jijusstice of the peace, 
 and made aaih that this apswer is true to the best of his meoiory and judg- 
 ment. 
 
 SIMON MOKGAN." 
 
 I, Eiehard Milton Cary, Deputy Clerk of the Circuit Court of the City 
 of Kiohmond, in the State of Virginia, do hereby certify the aforegoing to 
 be a true copy of the answer of James W. Wallace filed ii^ cause of Mason 
 vs. Mason et als., decided in the former Superior Court of Chancesy held 
 at Eichmond, in the year 1809. 
 
 EIOH'D. M. CAET. 
 
BILLS. 251 
 
 2. tinder the! prayer foi' general relief, the plaintiff in 
 ebiuity cannot redoTer a claim distinct from that dematfaed, oi' 
 put ill issue by his bill. Sheppard's Ex' or v. Starhe et ux., 
 3 Munf. 29. 
 
 3. It seems, that a final decree in a suit by legatees for di- 
 vision of testator's estate, is a bar to a bill exhibited \i^ the 
 same persons or their legal representatives, snggesting that the 
 executor had kept back part of the property, but not averring 
 that this was new matter since discovered, or that the decree 
 was obtained by fraud. LegrandY. Francisco, 3 Munf. 83. 
 
 4. Quaere. Aft^ a suit in Chancery has been set for hear- 
 ing, has the plaintiff a right to amend his bill before the hear- 
 ing as a matter of eorurse, upon paying the defendant all costs 
 occasioned thereby; or is such amendment to be permitted 
 only upon good caiisS shown? BoyJcin's devisees v. Stnith et 
 al, 3 Munf. 102. 
 
 5. Where an executor has a claim against the estate of his 
 testator, depending on a quantum meruit only, he may exhibit 
 a bill in equity against his co-executors and the legatees, to 
 have such claim established and fixed at a certain sum. In 
 such case, he ought to state the claim with reasonable cer- 
 tainty, by setting forth his own estimate of his services ; but, 
 should he fail to do so> his bill ought not to be dismissed, but 
 leave to amend it should be granted on motion. Baker v. 
 Baker et al, 3 Munf. 222. 
 
 6i A fkct not charged in the bill, nor put in issue by the 
 pleadings, cannot be relied on by the plaintiff. Parker v. 
 Carter et al., 4 Munf. 273, 
 
 7. A defect in the charging part of a bill, cannot be sup- 
 plied by a subsequent interrogatory. Ibid. 
 
 8. Where the bill in chancery is defective, not only for 
 want of proper parties, but in other respects, so that no de- 
 cree for plaintiff can be entered, a decree dismissing the bill 
 ought to be affirmed ; but, if it appear probable that some- 
 thing might be recovered on a new bill, properly drawn, such 
 affirmance should be without prejudice to any other suit the 
 plaintiff may be advised to bring. Stott et al. v. BaskerviUe 
 et al, 6 Munf. 20. 
 
 9. It is error for a Mil in chancery to pray tiiat testiinony 
 may be perpetuated, and at the same time to ask relief. 
 Miller v. Sharp, 3 Rand. 41. 
 
252 BILLS. 
 
 10. The plaintiff in a cross bill, cannot contradict the as- 
 sertions in his answer in the original suit.- Hudson et al. v. 
 Hudson's Ex'or, 3 Band. 117. 
 
 11. A bill of peace will not lie where the rights and re- 
 sponsibilities of the several defendants, neither arise from, nor 
 depend upon, nor are in any way connected with each other. 
 Randolph's Adm'x. v. Kinney, 3 Band. 394. 
 
 12. A creditor by judgment, obtained against an executor, 
 may either sue out execution, and levy it on the visible pro- 
 perty of the testator, if any there be; or if none be found, 
 he may proceed against the executor, as for a devastavit, on 
 account of misapplication of assets, or for that which amounts 
 to an admission of assets ; or he not knowing the state of the 
 assets, may file a bill of discovery, and thereupon proceed at 
 law ; or the Court of Chancery may retain the cause, and de- 
 termine disputes between the parties. White et al. v. Ban- 
 nister's Hx'orSj 1 Wash. 166. 
 
 18. Where a discovery is sought by the bill, a responsive an- 
 swer is clearly entitled to credit. Chapman v. Turner, 1 
 Call, 280. 
 
 14. The courts of Chance'ty bave jurisdiction in all cases, 
 where a discovery appears to be necessary, and the' plaintiff 
 has a ligbt to demand it. Pryor v. Adams, 1 Call, 382. 
 
 15. If thfe bill, in order to give the court jurisdiction make 
 a mere colorable suggestion, that a discovery is wanting, the 
 defendant may by plea^ deny the fact, and ground his objec- 
 tion to the jurisdiction on that denial; which fact, thus put 
 in issue, is to be tried by the court, according to the usual 
 course of Chancery causes. If the decision be for the defend- 
 ant, his objection operates; if for the plaintiff, the question 
 still remains to be decided, whether the fact alleged be a suffi- 
 cient ground of equity to sustain the jurisdiction. Ihid. 
 
 16. On a bill for a discovery, if it appear on its face, that 
 a discovery is not necessary, the defendant may demur to the 
 bill, in which case the demurrer is to be considered as a plea 
 to the jurisdiction, so as to taie the case out of the act pre- 
 cluding appellate Courts, (if there be a plea to the jurisdiction 
 in the inferior court,) from proceeding to a reversal for want 
 of jurisdiction. Ibid. 
 
 17. The jurisdiction of the court will be sustained, until 
 the hearing at least, the demurrer being overruled. But if, 
 after the demurrer has been overruled, the answer and Other 
 
BitiLs. 253 
 
 testimony should contradict the allegations of the bill, upon 
 the point conferring jurisdiction; qusere, whether the court 
 may still consider its jurisdiction sustained, by the implied 
 admission in the demurrer of the truth of those allegations. 
 Ibid. 
 
 18. In a bill brought for discovery and for the conveyancd 
 6f land or other estate, all persons interested in the land or 
 other estate, ought to be made parties. Kei/'s Ex'ors v. iam* 
 hert, 1 Hen. & Munf. 330. 
 
 19. After a judgment against an executor, and a return of 
 "no effects," on an execution against the goods arid chattels 
 of his testator, a suit in equity may be brought for a discovery 
 of the assets ; to which suit the securities of the executor and 
 all other persons, (however remotely concerned iri interest,) 
 against whom a decree can be rendered, ought to be made de- 
 fendants. Clarke v. Webh et al, 2 Hen. & Munf. 8. 
 
 20. Where a plaintiff sues in Chancery, for a conveyance 
 of a specific tract of land, and also for a conveyailce of other 
 lands, to make up a deficiency of quantity, (relating to which 
 deficiency he prays a discovery,) but according to the contract 
 appears entitled to compensation in money and not in lands j 
 the court, after decreeing the first mentioned conveyance, (the 
 deficiency, and the sum to be allowed for it, being ascertained,) 
 will go on to decree the compensation, without turning the 
 party over to a court of law. Chinn v. Seale, 1 Munf. 63. 
 
 21. In cases where it is proper and necessary, to go into 
 equity for a discovery, the court hating possession of the sub- 
 ject, will proceed to decide the oanse, without turning the 
 parties round to a court of law, notwithstanding, (if such dis- 
 covery, had not been necessary,) relief might originally have 
 been had at law. Chichester's Ex'x. v; Vass's Adm'r., 1 
 Munf. 98. 
 
 22. To give a court of equity jiirisdictiori cm the ground of 
 discovery, it is not sufficient to charge, that certain facts are 
 known to the defendants, and ought to be disclosed by them, 
 but it should be averred, that the plaintiff is ifnable to prove 
 such facts by other testimony. Duvcds v. Eoss, 2 Munf. 290. 
 
 23. A bill of discovery, to obtain evidence, which might 
 have been useful in a trial at law, must be filed pending the 
 suit at law, unless some sufficient excuse is shoWn, why it was 
 not filed at that time. FavZhier's Adm'r. v. Harwood, 6 
 Kind. 125. 
 
 22 
 
264 BfLLS. 
 
 24. Quaere. Whether a creditor at Idrge can inaittain a 
 bill in Chancery against the executor of the debtor for a dis- 
 covery and account of assets, and satisfaction ? jPoindexter' s 
 Ex'ors. V. Green's Ex'ors., 6 Leigh, 504. 
 
 25. In a suit in equity to enforce payment of a bond debt, 
 28 years after the right to demand it accrued, there being no 
 remedy, under the circumstances of the case, but in equity, the 
 bill, to rebut the presumption of satisfaction arising from lapse 
 of time, properly calls on the defendant to answer whether the 
 debt has been paid or not. Baker v. Morris's Adm'r., 10 
 Leigh, 284. 
 
 26. Where assumpsit is brought at law, and the statute of 
 limitation pleaded, a bill of discovery may be filed in equity^ 
 calling on the defendant to answer whether he has not made a 
 new promise within the term of limitation, in order to use 
 this matter on the trial of the action of law, in avoidance of 
 the bar of the statute, and the defendant shall , answer the 
 allegation of the new promise on oath. Ibid. 
 
 27; A defendant is not bound to disclose or answer matters 
 which will expose him to pains, penalties or punishment, or to 
 a criminal prosecution. And if he will be? probably subjected 
 to danger by his answer, he will b«J protected. Northwestern 
 Bank v. Nelson, 1 Grat. 108. 
 
 28. If the objection to the discovery appeats on the face of 
 the bill, defendant may demur. Ihid. 
 
 29. But if not appearing on the face of the bill, the de- 
 fendant must claim his protection by plea or answer; the 
 averments of which, if traversed by replication, must be estab- 
 lished by sufficient evidence. Ihid. 
 
 30. If plaintiff, seeking a discovery, relies on the fact that 
 a prosecution would be barred by the statute of limitation, 
 this fact should appear from the statements of the bill. Ihid. 
 
 31. A testator having devised slaves to his wife for life, re- 
 mainder to his children; if the wife marry again, and her 
 second husband sell one of the slaves to a honafide purchaser, 
 •who had no notice of the right of those in remainder; and 
 before receiving such notice, sold the same slave to another 
 person ; and they bring a bill quia timent, the Court of Chan- 
 cery ought to decree that the husband shall give security for 
 the forthcoming' of all the slaves and their increase at the 
 death of his wife, but should dismiss the bill as to the pur* 
 chaser. ChisJuUmi, v: StarlM, 3 Call, 25> 
 
BILL OF REVIEW, 256 
 
 32. Before the act of 1794, Ed. 1803 and 1804, p. 223, o. 
 174, a surety in a bond was not absolved from the obligation 
 by requesting the obligee to sue, and his failing to do so, 
 without anything active between him and the principal, tend- 
 ing to show a new contract for forbearance. Croughton v. 
 Duval, 3 Call, 69. 
 
 33. In such case, the surety might have paid the money, 
 taken nn assignment of the bond, and sued the principal him- 
 self; or he might have brought his bill quia timet to compel 
 the principal to pay, and the creditor to receive the money. 
 Ibid. 
 
 34. The power of a court of equity to rule a tenant for life 
 of slaves, or other property, to give security that the property 
 shall be forthcoming at his or her death, is to be exercised, 
 not as a matter of course, but of sound discretion, according 
 to circumstances. Holladay et ux. v. Coleman et ux., 2 
 Munf 162. 
 
 35. A bill should not be dismissed for defect of parties if 
 plaintiff has shown himself entitled to relief on the merits; 
 but he should be allowed to amend his bill and make the ne- 
 cessary parties. Jameson's Adm'x. v. Deshields, 3 Grat. 4. 
 
 36. Plaintiif, after setting out his case in his bill states 
 what he understands is the pretension of the defendant. This 
 is not such an allegation as will constitute the answer respon- 
 sive thereto, evidence, and thus throw the burden of disprov- 
 ing it upon the plaintifif. Leas' Ex'or. v. Eidson, 9 Grat. 
 277. 
 
 37. Bill being filed for the specific execution of a contract 
 far the exchange of lands, if it appears in the progress of the 
 ciii^e that the defendant cannot comply with his contract, the 
 plaintiff may amend his bill and ask for a rescission of the 
 ct;)atraot and for such other relief as under the circumstances 
 ho ii entitled to. Parrill y. McKinley, 9 Grat. 1. 
 
 BILL OF REVIEW. 
 
 1. Where the accounts of an executor have been discussed 
 for a long time in the Court of Chancery, before and after the 
 appeal, and having become intricate from the manner of stat- 
 ing them, if the bill of review be applied for to the last decree 
 of the Court of Chancery, purporting to be made in conform- 
 ity to the decree of Court of Appeals, and leave to file the 
 bill be refused, the Court of App3al3 will correct what is or- 
 
256 BILL 01" REVIEW, 
 
 roneous in the report of the commissioner acting under iti 
 own decree, and affirm the residue in order to prevent further 
 delay, although the affirmance may possibly be injurious in 
 some instances. Gary, &c. Ex' on v. Macon et ah, 4 Call, 605. 
 
 2. When a bill of review alleges new matters which are de- 
 nied by the apswer, it will be dismissed at the hearing, unless 
 the plaintiff proves the new matters, and that they were dis- 
 covered after the decree was made. Barnet & Co. v. Smith 
 & Co., 5 Call, 98. 
 
 3. If a bill of review, showing just cause, be offered and 
 refused by the Chancellor, an appeal lies to the Court of Ap- 
 peals. Lee's Infants v. Braxton, 5 Call, 459. 
 
 4. A bill of review must suggest error in law, or newly dis- 
 covered matter, or it cannot be sustained. Triplet v. Wilson 
 et al, 6 Call, 47. 
 
 5. Where a decree has been affirmed by the Court of Ap- 
 peals, a bill of review ought not to be granted to reverse it for 
 any errors on the face of the proceedings ; but if new matter 
 be produced which was unknown to the party applying, at the 
 time of the decree, the Court of Chancery may, and if the 
 evidence warrant it, should receive a bill of review. M' Call 
 V. Graham et al., 1 Hen. & Munf. 13. 
 
 6. Additional circumstances merely confirming facts proved 
 in the original cause, do not furnish sufficient grounds for a 
 bill of review. Randolph's Ex'ors v. Randolph's Ex'ors, 1 
 Hen. & Munf. 181. 
 
 7. An attachment having been served to compel perform- 
 ance of an erroneous decree in Chancery, and the defendant 
 having been induced, under influence of the decree, and du- 
 ress of the attachment, (without knowing his rights,) to pay a 
 sum of money, and execute an obligation for a farther pay.> 
 ment ; on a bill of review, the money was decreed to be re- 
 funded, and the obligation to be surrendered. Nelson v. Sud- 
 darth et al, 1 Hen. & Munf, 350. 
 
 8. An appeal ought not [previous to statute allowing ap- 
 peals from interlocutory decrees] to have been allowed by the 
 Court of Appeals, from an order of a Superior Court of Chan- 
 cery, rejecting a motion to allow a bill of review, where the right 
 of property had been decided, and a writ of habere facias 
 possessionem awarded, but an account remained to be taken, 
 and the commissioner's report had not come in ; such decree 
 being-interjocutory only. Bowyer v, Lewis, I Hen. & Mun. 554, 
 
BILL OF KEVIBW. 257 
 
 9. The distinction between a bill of review, and a supple- 
 mental bill, in the- nature -of a bill of review, is this ; a bill of 
 review forms no part of the proceedings in the original cause, 
 but is offereid after the suit is ended : A supplemental bill in 
 the nature of a bill of review, supposes an existing cause ; is 
 received arid incorporated with the papers in that cause, and 
 may be regarded as an amended bill ; and if such bill be re- 
 jected, the order rejecting it is interlocutory only. By Wick* 
 Jiam arguendd. Ibid. 
 
 10. A bill of review cannot be brought, until the decree 
 sought to be reviewed, and reversed, is final and the parties 
 out of court. Ellzey v; Lane's Ex'x, 2 Hen. & Munf. 589. 
 
 11. A bill off review lies only for new matter discovered 
 since the decree, or fOr errors apparent on its face. Quarrier 
 V. Garter's rep., 4 Hen. & MUiif. 242. 
 
 12. A cause may be re-heard oil a petition presented before 
 the term has passed, in which the final decree was pro- 
 nounced; but, not afterwards, excelpt by bill of review. — 
 (Oh. Taylor, ) Hodges v. Davis, 4 Hen. & Munf: 400. 
 
 13. It should appear that the d^fendarits, agaiilst whom a 
 decree is entered; had answered the bill, or stood out process 
 of contempt ; and if this be omitted, a bill of review may be 
 filed on the ground of error on the face of the dddree. Brax- 
 ton V. Lee's heirs, 4 Hen. & Munf. 376. 
 
 14. Want of notice of the time and place of a eonlmilsion- 
 er's taking an account, or the court's acting upon the report 
 too soon, are not sufiicient reasons for a bill of review ; such 
 objections not having been taken (as they ought to have been) 
 before the rendition of the decree. Winston v. Johnson's 
 Ex'ors, 2 Munf. 305. 
 
 15. New matter is no ground for a bill of review, unless it 
 was discovered since the decree was pronounced. Ibid. 
 
 16. A decree which is final in all respects, except that 
 "liberty is reserved to the parties, or either of them, to resort 
 to the court for its further interposition, if it be found neces- 
 sary," may be amended, on motion, in a summary way, or by 
 bill of review. Sheppard's Ex' or v. Starke et ux., 3 Munf. 
 29. 
 
 17. It seems, that a final decree in a suit by legatees for 
 division of a testator's estate, is a bar to a bill exhibited by 
 the same persons, or their legal representatives, suggesting 
 that the executor had kept back part of the property ; but not 
 
258 BILL OF HEVIKW: 
 
 averring that this -was new matter since discovered, or that 
 the decree was obtained by fraud. Legrand v. Francisco, 3 
 Munf. 83. 
 
 18. It is no ground for a bill of review, that the party was 
 prevented from proving certain important facts by wrong ad- 
 vice of one of his counsel ; or that the other was unable to 
 attend to the cause when called for trial, which circumstance 
 was unknown to the party, until after the decree. Franklin 
 V. Wilhimon, 3 Munf. 112. 
 
 19. Where a bill of review has been dismissed, on the 
 ground that it ought not to have been allowed, the decree not 
 being final, the complainant in that bill, (being defendant to 
 the original suit,) is not authorized in his subsequent defence 
 to make use of the answer to the bill of review, as evidence 
 in his favor. Ellzey v. Lane's Ex'x., 4 Munf. 66. 
 
 20. A bill of review to a decree pronounced before the 
 11th February, 1814, could not be received after five years 
 had elapsed from the date of such decree. Shejpherd v. La- 
 me, 6 Munf. 529. 
 
 21. The act of limitation need not be pleaded agaiiist a bill 
 of review, for the bill itself should show that it is Exhibited 
 within the time prescribed by lav? ; or that the complaiiant is 
 prot^ted by some of the provisions of the act, otherwise it 
 ought not to be received. Ihid. 
 
 22. In such case, if the fact alleged to prevent the opera- 
 tion of the act. be false, it may be denied by the answer of 
 the other partyj and if the proof be in his favor the bill 
 should be rejected. Ihid. 
 
 23. It is not sufficient ground for a bill of review, that cer- 
 tain papers on which the complainant's right to a decree de- 
 pended, and which he intended to exhibit with his original 
 bill, were lost or mislaid by his counsel, and not found till af- 
 ter the decree against him. Jones v. Pilcher's devisees, 6 
 Munf. 425. 
 
 24. To a final decree for S. against T., the latter files a bill 
 of review for errors in law in the proceedings and decree ; S. 
 in his answer cannot allega any new matter of fact. Thorn- 
 ton V. Stewart, 7 Leigh, 128. ' 
 
 25. Bill of review of a decree for errors at law, dismissed 
 by the Court of Chancery ; this decree is reversed by thig 
 
COMMISSIONERS IN CHANOEHT., 259 
 
 court, and the original decree reversed, yet it appearing that 
 the plaintiflF might have a just claim, the original cause was 
 remanded for further proceedings. Ihid. 
 
 26. An interlocutory decree in Chancery, deciding a ques- 
 tion of fact in litigation, pronounced in the progress of an ac- 
 count, on An exception to a report, or instruction to the com- 
 missioner, as to the propriety of items of dehit or credit, is 
 not such a final decree, as precludes a party from taking new 
 evidence touching the same question of fact, without ohtain- 
 ing a review or re-hearing of the decree, and without showing 
 that the new evidence had been discovered since the decree. 
 Dunbar's Ex'ms v. Woodcock's Ex' or, 10 Leigh, 629. 
 
 27. A justice of the peace having failed to forward a depo- 
 sition taken by him, to the clerk of the court in which the 
 cause is pending, and the cause having been heard and deci- 
 ded without it, is no ground for a bill of review. Niday v. 
 Harvey & Co et ah., 9 Grat. 454. 
 
 28. A bill of review for error on face of decree will not lie 
 for error in a commissioner's report, to which there was no ex- 
 ception, and the correctness of which might be affected by 
 extraneous proof. Moshy's adm'r et ah. v. Mosby's adm'r, 9 
 Grat. 584. 
 
 COMMISSIONERS. 
 
 1. In a suit to foreclose equity of redemption, commission- 
 ers are appointed by court to ascertain the damage the land 
 has sustained, while in possession of mortgagee, and deduct 
 the amount reported from the payments made by the mort- 
 gagor. Decree affirmed. Kennedy v. Baylor', 1 Wash. 163. 
 
 2. In the above case the commissioners omitted to state 
 the time or place of meeting, or whether defendant had no- 
 tice. No exception being taken in court below, no ground 
 for reversal. Ibid. 
 
 3. The value and profits of land, being in the nature of 
 damages, should be ascertained by a jury, not by commission- 
 ers. Eustace v. Gaskins, 1 Wash. 188. Contra, Roberts's 
 widow et al. v. Stanton, 2 Munf. 129. 
 
 4. Although it appear on the face of commissioner's re- 
 port, that he fixed the value of certain slaves by guess-work, 
 yet, if it do not appear to be unreasonable either way, and 
 no exception being taken in court below ; not to be noticed 
 in court above. Beckwith y. Butler, 1 Wash. 224. 
 
260 CdMMISSIONEES IN CHANCERY. 
 
 5. An error apparent on the face of an account in a com- 
 missioner's report, is ground for reversing a decree confirming 
 it, though no exception has been taken below. Walker's 
 Ex'ors V. Walke, 2 Wash. 195. Sed quaere. 
 
 6. On a general order of reference to a commissioner, of 
 all accounts between the parties, if he state an account as to 
 one subject only, omitting others, and his report be confirmed 
 by the court, it is a sufficient ground for reversing the decree. 
 Harris v. Magee, 3 Call, 502. 
 
 7. A Court of Chancery ought not to decide on accounts 
 mutually existing and controverted between the parties with- 
 out referring the accounts to commissioner to report thereon. 
 Bland's Adm'r. v. Wyatts, 1 Hen. & Munf. 543i 
 
 8. An order of the Court of Chancery, to make up an ac- 
 count, without saying before whom it is to be done, must be 
 executed before one of the master commissioners of the court. 
 Anderson v. Gest, Ch. Taylor, 2 Hen. & Munf. 26. 
 
 9. The court cannot appoint commissioners to make up an 
 account out of the State, except by consent of parties. Ihid. 
 
 10. Queere, whether commissioners appointed to take de- 
 positions, can, by their own authority, adjourn the taking 
 thereof to any other convenient time and place, in the event, 
 that the business cannot readily be finished on the day, and at 
 the place to which the notice applies, no intended adjourn- 
 ment, from day to day, until the business be finished, being 
 expressed in such notice. Marshall v. Frishie, 1 Munf 247. 
 
 11. It is not error in a court of equity, to direct commis- 
 sioners instead of a jury, to state and report an account of the 
 profits of land. Roberts's widow et heirs V. Stanton, 2 Munf. 
 129. 
 
 12. A commissioner's report, if erroneous on its face, may 
 be objected to, at the hearing of the caUse, though no excep- 
 tion be previously filed ; and also in the appellate court, though 
 no exception appear to have been taken in the court below, but 
 without such exception, it cannot be impeached on grounds, 
 and in relation to subjects, which may be affected by extra- 
 neous testimony. White's Ex'ors v. Johnson et al., 2 Munf. 
 285. 
 
 13. A failure to mention, in a commissioner's report, that 
 notice was given to the parties, is not error sufficient to re- 
 verse a decree, if no exception to the report appear in the re- 
 cord. Ibid. 
 
COMMISSIONEES IN CHANCERY. 261 
 
 14. Want of notice of the time and place of a commission- 
 er's taking an account, or the court's acting on the report too 
 soon, are not sufficient reasons for ■ a bill of review ; such ob- 
 jections not having been taken as they ought to have been be- 
 fore the rendition of the decree. Winston v. Johnson's Ex'ors, 
 2 Munf 805. 
 
 15. A sale of land at auction, by commissioners, in obedi- 
 ence to a decree in Chancery, ought not to be set aside on the 
 ground, that, after the land had been cried a considerable 
 time, they caused a limitation of time for further bidding to be 
 proclaimed, which was afterwards repeatedly done away, and 
 the sale again opened ; nor because the day of sale was cloudy, 
 and occasionally rainy ; it not appearing with certainty 
 that any person who would have bid for the land was hinder, 
 ed thereby from attending ; nor because the witnesses gene- 
 rally thqught the land was cried rather precipitately, and with- 
 out due notice ; one stating, that it was proclaimed more than 
 once, by the crier, that the property was about to be struck 
 oflF; that the commissioners made proclamation also to the 
 same effect, by directing the crier not to dwell ; and that about 
 three minutes elapsed, after the last bid, before the land was 
 struck off. Fairfax v. Muse's Ex'ors, 4 Munf. 124. 
 
 16. Exceptions are taken to a commissioner's report, and 
 court re-commits the report, without passing on the exceptions, 
 The re-committed report is not excepted to, The exceptions 
 to the first report are thereby waived. Kee's Ex' or v. Kee's 
 creditors, 2 Grrat. 116, 
 
 17. A commissioner to whom accounts are referred, gives 
 notice to the parties by publication in a newspaper, of the 
 time and place of taking the accounts. An exception by 
 a party for want of personal service where that was practica- 
 ble, should not be sustained, unless he shows by his affidavit 
 or otherwise, that he had not such information of the taking of 
 the accounts, as would have enabled him to attend. Mc Cland- 
 lish, Adm'r, &c. v. Edloe et als,, 3 Grat. 330. 
 
 18. 'V\^hen a commissioner, va, his regular proceedings to 
 adjust and settle accounts referred to him, takes the deposi- 
 tions of witnesses to enable him to act upon the subject, his 
 general notice to the parties of such proceedings is sufficient, 
 ■ffithout a special notice from him or the adverse party, that 
 guch depositions will be taken, Ihid. 
 
262 DECREES. 
 
 19. A claim of a creditor not reported on by the commis- 
 sioner, may be directed to be considered as a claim stated in 
 the report; and will be open to all just exceptions. Ihid. 
 
 DECREES. 
 
 1. Surety files a bill praying an injunction to a judgment 
 against him, and asks that land taken by creditors from the 
 principal as security, by an assignment of a deed thereof, 
 might be decreed to be sold. Court decrees — ^that upon pay- 
 ment being made by him of a balance due, with interest 
 thereon, and all costs at law, the injunction to be made per- 
 petual, and on such payment being made the creditor should 
 deliver and assign to the surety, the deed for and papers rela- 
 tive to the land, to remain as security for his indemnification, 
 and the surplus for the benefit of the debtor. If the debt be 
 not paid in a certain time, the land to be sold by commis- 
 sioners in Chancery at public sale for cash, the time and place 
 to be advertised in one of the papers. This decree to be satis- 
 fied out of the proceeds, and the surplus, after satisfying the 
 surety all his costs at law and equity, to be paid to the debtor. 
 Groves V. Graves, 1 Wash. 1. 
 
 2. If a decree for sale of mortgaged land be for the whole 
 sum mentioned in the mortgage, when only part is due; yet a 
 purchaser at such sale has a better title to the land than a 
 person claiming under the mortgagor by a contract subsequent 
 to the mortgage: but such person is entitled to the surplus, 
 of the price for which the land is sold under the decree, after 
 the mortgagee has received the sum actually due on the mort- 
 gage, with his costs. In such case, therefore, upon a bill 
 tiled by both the purchasers against the mortgagee, the court 
 should decree . conveyance to be made by the mortgagee and 
 the purchaser claiming under the mortgagor, and possession of 
 the land to be delivered to the purchaser at the sale, upon his 
 paying to each the sums, to which they stand respectively en- 
 titled m aforesaid. Thompson v. Davenports, 1 Wash. 126. 
 
 3. The conveyances so to be made, should be with special 
 warranty "aga nst themselves, and their respective heirs, and 
 all claiming under them respectively." Ibid. 
 
 4. A party, applying to a court of equity for an account, 
 subjects himself, though plaintiff, to a decree for a balance 
 found due from him to the defendant, mil et al. v. Souther- 
 land's JEx'ors, 1 Wash. 128. 
 
MCBEEg. 263 
 
 5. The Court of Chancery cannot make any alteration in 
 the provisions of a decree of the Court of Appeals, certified 
 thither for farther proceedings in order for a final decree* 
 White V. Atkinson, 2 Call, 376. ^ 
 
 G. A decree entered at one term of the Court of Appeals, 
 by which the cause is not put off the docket, may be set aside 
 at a subsequent term. Bedumarchais' s Case, 3 Call, 122. 
 
 7. It is not necessaiy to state in a decree in Chancery, that 
 all the preliminary steps towards maturing the cause for hear-' 
 ing were taken; it being intended where the cause is set' for 
 hearing, that it was done regularly, unless the contrary be 
 shown. Quarrier v. Carter's rep,, 4 Hen. & Munf. 242. 
 
 8. A decree against devisees, holding by several and distinct 
 devises, ought not to be joint but pro rata. Mason's dev's Yj 
 Peter's Adm'r., 1 Munf. 437. 
 
 9. Upon an appeal from a decree in Chancery, an error to 
 the injury of the appellee should be corrected though he did 
 not appeal. Day's Ex'or v. Murdoch, 1 Munf. 460. 
 
 lO; A decree in Chancery declaring the court's opinion, 
 that an agreement for the sale of a tract of land, should be 
 specifically performed by both parties, and directing the vendee 
 to execute a mortgage of the same land to secure the purchase 
 money, is to be understood, as requiring the vendor, in the 
 first place, to make a title to him. Mayo v. Purcell, 3 Munf. 
 243. 
 
 11. If a defendant, (with full knowledge of a decree in 
 Chancery, directing him. to deliver certain tlaves to commis- 
 sioners appointed to divide them,) purchase up executions 
 against the plaintiff, and cause the same to.be levied upon his 
 undivided interest in those slaves, which interest is thereupon 
 sold at an under rate, the sale ought to be set aside, and the 
 slaves with their increase and profits still held liable to the 
 provisions of the decree. Ross v. Hook's Adm'r., 4 Munf. 
 97. 
 
 12. If without fraud or collusion, a decree be rendered by 
 a court of competent jurisdiction against an executor, he may 
 bring his suit in equity against the legatees, for contribution 
 to satisfy such decree, without paying the money himself; 
 and without having appealed to a superior court ; though re- 
 quested, and advised to do so. Bowers' s Ex'or \, Gknderir 
 niteg, 4 Munf. 219. 
 
264 DECREES. 
 
 13. It is no oLjection to a decree, tkat it is hominally iil 
 favor of one defendant against anotiier, if it be substantially 
 in favor of the complainant. West Vi Belches, 5 Munf. 187; 
 
 14> A decree ought not to be reversed for uncertainty, in 
 matters, as to which it is ottly interlocutory, and may be per- 
 fected by application to the court. Birchett et al. v. BolUnoi 
 5 Munf. 442. 
 
 15. A clerk stating in the transcript of the record, that 
 certain answers, which are filed and copied in such transcript, 
 were not noticed by the court, is not to be relied on by the 
 appellate court, if the contrary may be inferred from the de- 
 cree itself Pickett et ux. v. Chilton, 5 Munf. 467. 
 
 16. If the caption of the decree name as defendants to the 
 case certain persons whose answers are filed, and the decree 
 state that the cause was heard on the bill, answers and exhi- 
 bits, it may be inferred that the answers of those persons were 
 noticed by the court. Ihid. 
 
 17. It seems that where a decree against executors for a 
 legacy is made upon their confessing assets sufficient to satisfy 
 the same (without specifying Whether such assets consist of 
 money or other property) such decree may with propriety 
 direct that they pay the legacy and interest, with the costs of 
 the suit, out of the said assets, if so much thereof thfey have; 
 If not, out of their own estates. M'Rae's Ex' or v. Brooks 
 et ux., 6 Munf. 167. 
 
 18. A decree against executor for a legacy, though made 
 iipon a confession of assets, and without their expressly de- 
 manding bond and security from the plaintiff, is yet errohe- 
 ous, if it do not require such bond and security to be given 
 before the defendants be compelled to pay their legacy. Ihidi 
 Stovall's Ex'or v. Woodson et ux., 2 Munf; 303; Bootes ti 
 Webb, 4 Munf. 77; 
 
 19. A final decree by default may be set aside at a subse- 
 quent term, for good cause shown, in a case where relief can- 
 not be given by bill of review, or bill to impeach the decree 
 for fraud in obtaining it. Hrwin v. Vint, 6 Munf. 267. 
 
 20. The circumstances shown in this case were, that the 
 defendant against whom the decree was rendered, was pre- 
 vented by mistake and accident from filing his answer, and 
 that in fact his title was good to the land in controversy. 
 Ibid. 
 
DECREES. 
 
 265 
 
 {Note. In this case, a bill to set aside the decree was 
 filed, but the proper mode ' of proceeding appears to be by 
 petition.) 
 
 21. A court of equity may "decree in favor of one defendant 
 against another ; in a case where the same decree operates in 
 favor of a complainant by subjecting in the first instance, that 
 defendant, who ought ultimately to pay the debt. M' Neil et 
 al. V. Baird, 6 Munf. 316. 
 
 22. If it be stated in the transcript of a decree in Chan- 
 cery, that "the cause came on to be heard, on the bill, aiiswer 
 and exhibits," such hearing must be understood to have been 
 in exclusion of the depositions, contained in the record, no 
 proof appearing of notice of the time and place of taking 
 those depositions. Shumate v. Dimhar, 6 Murif. 430. 
 
 23. In such case, if the answer deny the equity in the bill, 
 and be not impugned by the exhibits, a decree in favor of the 
 plaintifis should be reversed, and the bill dismissed. Ihid. 
 
 24. Qusere. Whether it be regular in a decree for sale of 
 mortgaged premises, to direct the proceeds of Such sale to ' be 
 paid over to the plaintiff, before the sale shall have been con- 
 firmed by the court. AndersorCs Adm'r v. Davies's et al., 6 
 Munf. 484. 
 
 25. A decree against purchasers of a tract of land, encum- 
 bered by a mortgage to secure the payment of an annuity^ 
 ought to provide, that so much of their lands, respectively, be 
 sold, as will be sufficient to pay their proportions of the sum 
 remaining due, and unsatisfied by a sale of so much of the 
 tract, as Was retained by the vendor, and liable to be sold; 
 except so far as they shall pay their respective proportions of 
 such debt, and agree to hold their lands subject to the future 
 decree of the court for their proportions of any sums growing 
 due to the plaintiff thereafter. Mayo v. Tomhies, 6 Munf. 
 520. 
 
 26. A mortgagee of lands and slaves, cannot be compelled 
 to resort to a sale of the slaves before he shall disturb the pos- 
 session of bona fide purchasers of the lands from the mort- 
 gagor; but the decree against such purchasers ought to permit 
 them, after satisfying the claim of the mortgagee, to seek in- 
 demnity out of the mortgaged slaves, or from the estate of 
 the mortgagor, or of any other person liable to such demand, 
 either so far as the mortgagee might be able to charge such 
 party or otherwise. Ihid. 
 
 23 
 
266 DBCKEES. 
 
 27. It is error to decree against an executor absolutely, tliat 
 lie shall pay money at fixed future periods, in respect of funds 
 not in hand, but which shall then come into his hands. Site's 
 Ex' or V. Hite's legatees, 2 Kand. 409. 
 
 28. Where the representative of a sheriff is sued on ac- 
 count of an estate committed to his hands, and it appears that 
 his deputy (who is also sued) had the entire management of 
 the estate, the court may decree against the deputy in the first 
 instance, if assented to by the plaintiff, reserving liberty to 
 him to resort to the court, for ulterior decrees against the 
 other parties; but if such assent be not given, it is the duty 
 of the court to decree between the defendants, in order to 
 throw the burden on the person ultimately liable. Gocke v. 
 Harrison, 3 Kand. 4S4. 
 
 29. If there be two decrees on the same day against a de- 
 fendant's land, the whole, and not a moiety only, of the land 
 ought to be directed to be sold, on the ground that at law, two 
 judgments would each have taken a moiety if it had been ex- 
 tendible. Coleman \. Uoche, 6 Kand. 618. Under one de- 
 cree this may now be done. See Code of Virginia, chap. 1S7, 
 sec. 8. 
 
 - 30. A decree in Chancery, disposing of the whole subject, 
 deciding all questions in controversy, ascertaining the rights 
 of all parties, and awarding costs, though it appoint a com- 
 missioner to sell part of the subject, and account for and pay 
 the proceeds to the parties, with liberty to them to apply to 
 the court to add other or substitute new commissioners, or for 
 a partition of the subject directed to be sold, in kind, is a 
 final decree. Harvey et ux. v. Branson, 1 Leigh, 108. 
 
 31. Suit in Chancery against A. and B., decree against A. 
 for debt, and against B., declaring a conveyance by A. to him, 
 fraudulent as against plaintiffs : ca. sa. issued on decree 
 against A. for the debt, and executed; then B. appealed from 
 the decree, so far as it affected him, and the court reverses 
 the decree so far as it affected B., but held, it could not re- 
 verse the decree against A. who had not appealed, though the 
 Court of Chancery had no jurisdiction to make the decre i 
 against him. Tate v. Liggat, &c., and Liggat, &c. v. l»,^rgu,n, 
 &c., 2 Leigh, 84. Distinguished from Lewis v. TJwrnton, 6 
 Munf. 87. 
 
 82. A. and B. are co-defendants in a suit in Chancery, for 
 recovery of a parcel of slaves and an account of their profits. 
 B. claims the slaves under a mortgage to him by his co-de- 
 
DECREES, 267 
 
 fendant A.; there is a decree for the slaves and profits, against 
 both defendants : B. alone appeals from, the decree; the court 
 holding that the plaintiffs had no right, considered the whole 
 cause before it, on B.'s appeal, and dismissed the bill as to A. 
 and B. both. Dickenson v. Davis et ah., 2 Leigh, 401. 
 
 33. On a foreigil attachment in Chancery against absent 
 debtor and home defendant, as garnishee, decree against 
 absent defendant for debt, and against home defendant for 
 debt due by him to absentee, to be paid plaintiff, in part of 
 a debt due him by absentee; the absentee being in default, 
 the home defendant appeals : Held, the home defendant can- 
 not, in the appellate court, contest the justice of the decree, 
 as against the absentee, but only so much of it as affects him- 
 self. Heffernan's Adm'r v. Grymes's Adm'r, 2 Leigh, 512. 
 
 34. It seems there cannot properly be a decree between co- 
 defendants in equity, in any case in which the plaintiff is not 
 entitled to a decree against both or either, and it would be 
 inconvenient to extend that practice further. Huhhard it. 
 Goodwin, and Kennedy v. Same, 3 Leigh, 492. ' 
 
 35. The Testator by his will desires, that, when his affairs 
 are settled and all his debts paid, his slaves be emancipated 
 according to law, and those under age and over forty, to be 
 equally in the care of his wife, son and daughter, and that the 
 above may be done by his executors ; upon bill in Chancery 
 by slaves, as paupers, against executor, charging that ample 
 fund had been raised out of their profits to pay debts, and 
 praying an account of administration, and of their profits; 
 and decree for their manumission and for excess of profits 
 above the debts, the Chancellor, in 1809, finding that ample 
 fund to pay the d'ebts has been raised out of the profits, 
 though debts not yet finally liquidated and paid — .decrees, 
 that the executor shall manumit them, reserving liberty to 
 them to resort to the court for a distribution of any surplus 
 of profits which might remain after liquidation and payment 
 of debts, or for other arrangement in respect to such surplus. 
 This decree is final as respects their manumission, but making 
 no disposition of the surplus of profits. Paup Adm'r, et als. 
 V. Mingo, &c., 4 Leigh, 163. 
 
 36. Testator bequeaths, that his executor shall pay to his 
 daughter £25 per annum, so long as she shall remain single; 
 and devises and bequeaths to his son, all his estate, real and per- 
 sonal, which shall remain after payment of debts and legacies; 
 the son is the executor, he takes under the will, ample "estate, 
 both real and personal, to satisfy all the legacies; he sells the 
 
268 DECREES. 
 
 real, wastes tlie personal, and dies insolvent. Upon a bill by 
 the daughter against the purchaser of the real estate, and 
 two sons of a deceased surety in the executorial bond, holding 
 estate of the surety, the Chaneellor decrees :• — that the sons 
 should each pay one half of the annuity in arrear, and the 
 costs of suit, reserving liberty to the plaintiff, in case the de- 
 cree should prove unavailing as to either, to resort to the 
 court for further decree against the other, and ordering the 
 cause to be retained in court for the purpose of taking further 
 accounts as to the annuities to accrue in future. This decree 
 is final, notwithstanding the reservation, from which no appeal 
 can be takeii after three [now, five] years from its date, 
 Tliorntons v. Fitzlmyh, 4 Leigh, 209. 
 
 37. No decree can be made on matter appearing in answer 
 only. Elb V. Martin, 5 Leigh, 132. 
 
 38. In a decree against infant heirs, subjecting lands 
 descended to a debt of their ancestor, it is error not to give 
 them a day to show cause against the decree, after their at- 
 tainment to full age. Jackson's Adm'x et ah. v. Turner, 5 
 Leigh, 119. Sed vide Code of Virginia, chap. 178, sec. 7. 
 
 39. Bill filed by assignees; answers call for proof of the 
 assignment; it is error to decree for plaintiff without such 
 proof. Tennent's Iwirs v. Pattons, 6 Leigh, 196. 
 
 40. Every decree which disposes of the whole cause, and 
 leaves nothing further to be done, is a final decree. Ibid. 
 
 41. Decree cannot be made against a defendant, where the 
 pleadings show no cause against him. Bank of Virginia v. 
 Craig, 6 Leigh, 399. 
 
 42. The court cannot examine the propriety of a decree 
 made at a former term inter partes, nor set aside such decree 
 of a former term, on the ground that it decided matters coram, 
 non judice at the time. Ibid. 
 
 43. Upon a bill in Chancery against several defendants, 
 process issues against one not- made a party defendant in the 
 bill, and against whom there is no allegation therein, and no 
 relief prayed, and a decree is made against him by default, 
 and against the defendants, by some of whom an appeal is 
 taken to the Court of Appeals, where the decree is reversed 
 as to the appellants, and in all things else affirmed. The de^ 
 cree is a mere nullity as to the party who was not named in 
 the bill, and against whom the bill contained no allegation and 
 prayed no relief. Moseley v. Cocke, 7 Leigh, 224. 
 
DECREES. 2'69 
 
 44. Decree for plaintiff reversed by the Court of Appeals, 
 the allegations of the bill not being proven by ^competent evi- 
 dence; but it appearing probable that the defect can be sup- 
 plied, cause remanded to inferior court, to afford plaintiff op- 
 portunity of adducing other proof. Sitlingtons v. Broion et 
 ah., 7 Leigh, 271. 
 
 45. Decree of reversal, where causes have been improperly 
 consolidated, and in one there is defect of appellate jurisdic- 
 tion, and in the other the decree below is erroneous. Clai- 
 horne v. Gross et als., 7 Leigh, 331. 
 
 46. The bill of a distributee, besides making the adminis- 
 trator and his sureties defendants, states, that the complainant 
 has understood that the administrator who has gone out of the 
 commonwealth, appointed B. his agent to transact his business 
 in this state, and that he put property or money into B.'s 
 hands to satisfy his debts, but she is not sure that the fact is 
 so, and therefore does not think it just to aver it positively. 
 She makes him a defendant, and calls upon him to state 
 whether he has, or expects to have any such funds, and if any, 
 what. B. dying, and the cause being revived against his ex- 
 ecutrix, she answers, that her testator, so far from being in- 
 debted to the administrator, or having in his hands any of the 
 estate wherewith to satisfy any part of the debt due to the 
 complainant, was himself a creditor of the administrator to a 
 very considerable amount, and that the administrator is still 
 considerably indebted to her as executrix ; that she has a lien 
 upon certain slaves, in which the wife of the administrator 
 has an interest at the termination of a life estate, but even 
 this property if it could be sold now, would be insufficient to 
 pay the debt due to her as executrix. An account having 
 been taken, ascertaining the amount due to the plaintiff from 
 the administrator, there ought to be a decree for the same 
 against the administrator and his sureties without delaying 
 the plaintiff for an account to be stated between B. and the 
 administrator. Moore's Adm'r v. George's Adm'r, 10 Leigh, 
 228. 
 
 47. A decree for a sum of money provides that if no pro- 
 perty of the debtor can be found, other than that conveyed by 
 him by a deed of trust and a mortgage, then he shall deliver 
 up the trust and mortgage property to the marshal, to be sold 
 to satisfy the money secured by the trust and mortgage; 
 and then to satisfy the decree. The debtor dying, a bill of 
 revivor and supplement is filed against the administrator to 
 
^70 DKCREES. 
 
 obtain payment of tlie decree out of the assets in his hands. 
 And the administrator, by his answer, relies upon the 17th, 
 and also the 5th section of the statute of limitations, 1 Rev. 
 Code, ch. 128. Hel^, — the decree in this case is not a final 
 decree, and if it were, is not such a one as the statute can ap- 
 ply to. Hill's Ex' or V. Fox's Adm'r, 10 Leigh, 587. 
 
 48. An interlocutory decree in Chancery, deciding a ques- 
 tion of fact in litigation pronounced in the progress of an ac- 
 count, upon exceptions to a report or instructions to a commis- 
 sioner as to the propriety of items of debit or credit, -is not 
 such a final decree, as precludes a party from taking new evi- 
 dence touching the same question of fact without having ob- 
 tained a review or rehearing of the decree, and without show- 
 ing that the new evidence had been discovered since the de- 
 cree. Dunbar's Ex'ors v. Woodcock's Ex'or, 10 Leigh, 029. 
 
 49. In general, a cestui que trust is not bound by a decree 
 rendered against his trustees in Chancery suit to which the 
 cestui que trust was no party. Collins v. Lofftus & Co., 10 
 Leigh, 5 j Commonwealth v. Hicks, 1 Grat. 416. 
 
 50. It is error to decree in favor of a person not a party in 
 the cause. Bailey's Adm'x v. Robinsons, 1 Grat. 4. 
 
 51. A party coming into court, four or five years after a 
 conditional decree, to ask for an award of execution thereon, 
 it is proper for the court to direct an account of subsequent 
 transactions between the parties, and decree accordingly. 
 Davis v. Crews, 1 Grat. 407. 
 
 52. Decree against an executor will be enforced in a dis- 
 tinct suit against his sureties. Sobsonv. Yancey et als., 2 
 Grat. 73. 
 
 53. But the account taken in the suit against executor, to 
 which securities were not parties, may be surcharged by them, 
 or they may demand a new account. Ibid. 
 
 54. A court of equity can only decree upon the case made 
 by the pleadings, though the evidence may shew that the 
 plaintiff is entitled to further -relief. Munday v. Vawter et 
 als., 3 Grat. 518. 
 
 55. A decree which disposes of the whole subject in con- 
 troversy and gives all the relief contemplated and leaves no- 
 thing to be done, is a final decree. Vanmeter's Ex'ors v. 
 Vanineters, 3 Grat. 148. 
 
l^BCRBES. 271 
 
 56. A decree whicli settles all matters in dispute in a cause, 
 but omits to decree upon a claim set up in the bill, but which, 
 after circumstances had rendered unimportant and the plain- 
 tiff did not insist upon, is a final decree. Riiff-^. Starlce's 
 Aclm'x., 3 Grat. 13i. 
 
 57. When a court of equity will decree between co-defend- 
 ants. Munday v. Taioter et ah., 3 Grat. 518. 
 
 58. The practice of decreeing between co-defendants will 
 not be extended further than it has already been carried. 
 Law's Ex'ors v. Sutherland, 5 Grat. 357. 
 
 59. Upon an appeal from an interlocutory decree, the prin- 
 ciples of the decree, and not mere informalities in the form 
 thereof, are the proper subjects of consideration in the appel- 
 late court. The decree will not therefore be reversed for such 
 errors of form, but will be afl&rmed without prejudice to the 
 appellant's right to move the court below for a modification of 
 the decree in these respects. Woodson, trustee, v. Perkins, 5 
 Grat. 345. 
 
 60. A decree directing land to be sold, unless a sum cer- 
 tain is paid by a day specified, the clerk has no authority to 
 issue execution on the decree, without an order of the court 
 or the judge in vacation; and if an execution is issued on 
 such a decree by the clerk, without authority, the court may 
 quash the execution in term, or the judge in vacation may re- 
 strain proceedings thereon by an injunction order. Shackel- 
 ford V. Apperson, 6 Grat. 451. But see Code of Virginia, 
 chap. 186. 
 
 61. Though circumstances may exist, which will warrant 
 the court or the judge in vacation to allow process of execu- 
 tion on such an interlocutory decree, these circumstances must 
 be shewn, and if not shewn, it is improper to allow it. Ibid. 
 
 62. A decree is a lien on the debtor's land; and the cred- 
 itor may come into equity to subject the land, though the de- 
 cree has never been revived against the administrator of the 
 debtor, and no execution has issued upon it. Burhridge v. 
 Higgins' Adm'r, 6 Grat. 119. 
 
 63. In a bill by a creditor against an administrator and his 
 sureties, charging a devastavit by the administrator, and the 
 liability of the sureties for it, though some of the sureties 
 insist in their answer that, under the circumstances, one of the 
 sureties is liable to the others, if they are liable to the plain- 
 tiff, though there is a decree for the plaintiff, and though it 
 appear from the proofs that the devastavit was occasioned by 
 
272 DEMURRER. 
 
 t 
 
 the payment of a debt of inferior dignity to the surety sought 
 to be charged, yet it is not a proper case for a decree between 
 co-defendants. Allen & Ei-vine v. Morgan's Adm'r et ah., 8 
 Grat. 60. 
 
 64. A decree which passes upon the whole subject in issue, 
 so as to be final in its nature, is not converted into an inter- 
 locutory decree by the addition thereto of an order suspending 
 the decree as to the amount of one item of the account in- 
 volved in the cause, until the decision of another suit brought 
 by another party, against both plaintiiSfs and defendants in the 
 first suit, in which the amount of this item is claimed by the 
 plaintifi^. Fleming et als. v. Boiling et ah., 8 Grat. 292. 
 
 65. In a suit to marshal assets, the court may in its discre- 
 tion, decree a sale of lands in the hands of heirs, though some 
 of them are infants ; but it is premature to decree a sale be- 
 fore adjudicating the claims of the creditors and so ascertain- 
 ing the amount of indebtedness chargeable upon the lands of 
 decedent. Cralle et ah. v. Meem et als., 8 Grat. 496. 
 
 DEMTJEREE. 
 
 1. A demurrer may be considered a plea to the jurisdic- 
 tion ; but, after the demurrer has been overruled, if the an- 
 swer and other testimony should contradict the allegations of 
 the bill, upon the point conferring jurisdiction; quaere, whe- 
 ther the court may still consider its jurisdiction sustained, by 
 the implied admission in the demurrer of the truth of those 
 allegations, Pryor v. Adams, 1 Call, 382. 
 
 2. Admitting with the demurrer that the question concern- 
 ing the depreciation of paper money was a purely legal one, 
 yet as the appellee was compelled to have had evidence of the 
 amount and date of the bond sued on from the appellant, the 
 bill should be sustained. Ibid. 
 
 3. When a demurrer to a bill in Chancery is overruled, a 
 decree ought not to be pronounced against the defendant, but 
 leave should be given him to file an answer. Sutton v. Gate- 
 wood et ux., 6 Munf. 398. 
 
 4. A demurrer to a bill in Chancery against a guardian, for 
 advances of money, &c., by the plaintiff, for the use of the 
 ward, ought not to be sustained on the ground that the ward 
 ought to have been a party ; but if, on the answer of the 
 guardian, it should appear proper, the court should then di- 
 rect the ward to be made a party. Ihid. 
 
DEPOSITION. 273 
 
 « 
 
 5. Where a bill in Chancery sets forth various claims, and 
 the defendant files a general demurrer, the demurrer will be 
 OYerruled, if any of the ckims be proper for a court of equi- 
 ty. Gastleman et al. v. Veitch, &c., 3 Eand. 598. 
 
 6. A defeijdant in Chancery in Virginia may, at the same 
 time, answer and demur to the same matter in the bill. Dis- 
 sentiente Tucker, P. Bassett's Adm'r, &c, v. Cunningham's 
 Ex'ors, 7 Leigh, 402, 
 
 7. If good ground of objection to the discovery sought ap-. 
 pears upon the face of the bill, defendant may demur. N. 
 
 W. Bank v. Nelson, 1 Grat. 108. 
 
 8. Demurrer to bill to recover land sold for taxes, and pur- 
 chased by the deputy sheriflF, overruled. Taylor's devisees v. 
 Stringer, 1 Grat. 158. 
 
 DEPOSITION. 
 See title, " Commissioner's report." 
 
 1. A deposition taken after an appeal from an interlocutory 
 decree in chancery may be read on the hearicg of the appeal, 
 Alexander v. Morris, 3 Call, ^9. 
 
 2. A deposition taken before the decree was pronounced in 
 the Court of Chanpery, but not filed until after an appeal 
 was taken from the decree, was received by the Court of Ap-- 
 peals. Auditor, &c. v. Pauly, 5 Call, 331. 
 
 3. A deposition taken at a time and place not mentioned in 
 the notice, may be read as evidence ; an agent of the party to 
 whom the notice was given, being duly authorized to attend 
 to the taking of such depositions, being present at the time 
 and place appointed, and consenting to the postponement to 
 such other place and time ; the commission being in all other 
 respects regularly executed and returned, the court will prcr 
 sume that the person consenting was the authorized agent of 
 the party. Marshall v. Frisbie, [an action at law,] 1 Munf, 
 247. 
 
 4. Bill in Chancery by W. M. against S. C. and two others, 
 claiming slaves, and demanding discovery of names, &c., and 
 an account of profits ; depositions of aged witnesses are ex-r 
 hibited by. the plaintiff, taken in 1794, in an action of detinue 
 brought by him against R. B., to which S. C. was not a par- 
 
274 DEPOSITION. 
 
 • 
 
 ty, to prove the pedigree of the slaves claimed in this suit ; 
 and these depositions are read in the Court of Chancery, at 
 three hearings, at very distant intervals, without exceptions. 
 These depositions are competent evidence of general reputa- 
 tion touching the 'descent of the slaves, if the deponents be 
 novr dead, and considering that they vrere read at the hearing 
 so often, without exception, and the great probability that 
 the deponents are now all dead, the objection to the compe- 
 tency of them cannot avail now in this court. Tucker, P. 
 dksentiente as to the last point. Colvert v. Mlhtead's Adm'x, 
 5 Leigh, 88. 
 
 5. Depositions of witnesses read at the hearing of a suit in 
 equity, without objection, cannot be objected to on the ground 
 of incompetency of the witnesses in the Court of Appeals, on 
 the hearing of an appeal from the decree. Baxter v. Moore, 
 5 Leigh, 219. 
 
 6. Qusere: If the deposition of a witness taken in the 
 Court of Probate, upon the probate of a will, maybe read as 
 a part of the sentence of the court, upon the trial of the issue 
 devisavit vel non directed by the Chancery court, upon a bill 
 filed to set aside the will. Ooalter's Ex' or v. Bryan et ux. et 
 ah., 1 G-rat., 18. 
 
 7. A person taking a deposition under a regular commission 
 and notice, certifies that the deposition was taken before him, 
 with the addition to his name of J. P. It sufficiently appears 
 that he was a justice of the peace. Pollard's heirs v. Lively, 
 2 Grat., 216. 
 
 8. If after answer filed and depositions taken, the plaintiff 
 make new parties and file a new bill, the depositions previous- 
 ly taken, cannot be read in evidence against the new defen- 
 dants ; but they might perhaps, if the new defendants were 
 purchasers, peraSeraie lite. Jones v. Williams et al., 1 Wash. 
 230. 
 
 9. Depositions taken in a cause relating to the same sub- 
 ject, but not between the same parties, or persons under whom 
 they claim, cannot be read in evidence in a subsequent suit, 
 though the witnesses are dead. (An action at law,) Rowe v. 
 Smith, 1 Call, 487. 
 
 10. The reasonable notice required by law, on the taking of 
 depositions, must depend on circumstances; thus, if notice 
 was left with the wife of the party, at his dwelling house, 
 when it was known that he was in another State, and when 
 
DEPOSITION. 275 
 
 the notice miglit tave been given him previous to his depar- 
 ture, or as respected the trial of the cause might he postponed 
 till his return ; the notice was held to be insufficient, and the 
 deposition suppressed. Coleman, Ex' or, &c. v. Moody, 4 
 Hen. & Munf. 1. 
 
 11. Depositions taken in a suit to perpetuate testimony, are 
 not to be read as evidence in a subsequent suit, unless it ap- 
 pear that the witnesses are dead, or otherwise out of the pow- 
 er of the court. La-wrence v. Swann et al., 5 Munf. 332. 
 
 12. If it be stated in the transcript of a decree in Chance- 
 ry, that " the cause came on to be heard, on the bill, answers 
 and exhibits : " it must be understood to have been in exclu- 
 sion of the depositions contained in the record, no proof ap- 
 pearing of notice of the time and place of their taking. Shu^ 
 mate v. JDunhar, 6 Munf. 430. 
 
 13. When the deposition of a party in a suit in Chancery 
 is taken under a special commission, subject to all just ex- 
 ceptions, whether the deposition be excepted against on the 
 ground of incompetency or not, it behooves the court to exam- 
 ine and decide the question of competency : and though the 
 deposition be read at the hearing in the Court of' Chancery 
 without exception, yet if on appeal from the decree, the ap- 
 pellate court finds the deposition incompetent evidence, by 
 reason of the deponent's interest in the" event, it will pay no 
 regard to the deposition. Beverly v. Brooke et ah., 2 Leigh, 
 426. 
 
 14. A deposition should, within the hours appointed by the 
 notice, be opened, at the instance of any party not present 
 when it was taken, for the purpose of cross examining the wit- 
 ness. Jeter v. Taliaferro et al., (action at law,) 4 Munf. 80. 
 
 15. Notice of taking depositions is not sufficient, if given 
 to the attorney at law, in the absence of the principal from 
 the state, but ought to be given to the agent or attorney in 
 fact, or if there be none, by publication in the legal manner. 
 Galullj Ex' or v. Pintonij, 4 Munf. 371. But by statute a no- 
 tice may now be given the course of party non-resident. See 
 Sess. Acts 1852, p. 76. 
 
 16. A notice tio take depositions is insufficient, if it omits the 
 place where the depositions are to be taken ; nor, if the ma- 
 gistrates meet on the appointed day, can they resume the tak- 
 ing of the depositions at any future day, without an adjourn- 
 ment to such day. Hunter v. Fulcher, 5 Rand. 126. 
 
276 DISCOVERY, &c. 
 
 17. The deposition of a defendant was taken hj his co-de-- 
 fendant, under a special commission awarded by the Chancel- 
 lor to take the deposition, subject to all just exceptions, and 
 the plaintiff obtains a like special commission to take the de- 
 position of the same party, but does not act under it : Held, 
 the plaintiff is not precluded from excepting to the deposition 
 taken by the defendant. Beverly v. Brooke et ah., 2 Leigh, 
 426. 
 
 18. A notice is given by plaintiff to defendant, for taking 
 depositions of several witnesses at a specified place in Missouri, 
 on six successive days, between certain hours of each day. — 
 Considering the distance of the place appointed for taking the 
 depositions, and the uncertainty of the precise time at which 
 the party wolild be enabled to have things in readiness for 
 taking them, the notice is sufficienitly definite. Kincheloe Vi 
 Kincheloe, 11 Leigh, 393. 
 
 19. Exceptions to leading qiiestions to a witness should be 
 made at the time, if party be present, or by his agent or at- 
 torney when depositions are taken. McGandlish's Adm'r, 
 &c., V. Edloe et als., 3 Grat. 334. 
 
 20. The caption of a deposition describing it as taken in a 
 proceeding of forcible entry and detainer, is sufficiently accu- 
 rate to authorize the reading of the deposition, though the 
 proceeding is for an unlawful detainer. Gales v. Miller et als., 
 8 Grat. 6. 
 
 DISCOVERY. 
 
 See "Answer." "Interrogatories." 
 
 EXCEPTIONS TO ANSWERS. 
 
 1. When exceptions are filed to an answer, they must be 
 disposed of before any further proceedings can take place in 
 the cause. Clai-k v. Tinsley's Adm'r, 4 Eand. 250. 
 
 2. When the answer of the defendant omits to notice some 
 of the allegations of the bill and replies to others, the allega- 
 tions not noticed are not considered as admitted, but the plain- 
 tiff must except to the answer as insufficient. Coleman v. 
 Lyne's Ex' or, 4 Kand. 454. 
 
 3. The mode in which an exception to an answer shall point 
 out the omission excepted to, is a matter of practice discre- 
 tionary with the court and not a subject of appeal. Craig v. 
 Sebrell, 9 Grat. 131. 
 
, INTBPLEADEE, &C. 27T 
 
 4. If the exception be sustained and the defendant files an- 
 other answer, there the subject of the exception properly ends. 
 Ibid. 
 
 INTERPLEADER. 
 
 1. S. files a bill of interpleader against A. and B., in ordef 
 that it may be litigated and determined between them which 
 IS entitled to a sum of money in S.'s hands; and the bill is 
 filed in consequence of a demand made on S. by B. for the 
 liioney ; the court holding that A. Was entitled to the mohey 
 in question, decreed that B. should pay A. his costs of suit; 
 and decree affirmed. Beers, &c. v. Spooner et al., 9 Leigh, 
 153. 
 
 INTERROGATORIES. 
 
 1. A defect in the charging part of a bill, cannot be sup- 
 plied by a subsequent interrogatory. Parker v. Carter et al, 
 4 Munf. 273. 
 
 2. An order directing defendant to be brought in to answer 
 interrogatories should be discharged, upon permission being 
 granted him to file his answer. ./. Ca?T. Jackson's assignees 
 V. Cutri(jht, &c., 5 Munf. 310. 
 
 3. A defendant in action at law, wishing a discovery, files 
 Written interrogatories under the statute, to which answers are 
 given. These answers caniiot at the trial he given in evidence 
 by the plaintiff. And when offered as evidence by the defen- 
 dant the whole must go to the jury, before whom they will 
 not be conclusive, but may be disproved by any other evi- 
 dence which may be introduced by the defendant. McFar- 
 land V. Hunter, 8 Leigh, 489 ; Vaughn & Co. v. Garland, 
 11 Leigh, 251. 
 
 4. Case in which a defendant was brought in by a messen- 
 ger to answer interrogatories. Johns v. Davis's Ex' or, &c., 
 2 Rob. 729. 
 
 &. A party is not bougd to answer interrogatories which may 
 subject him to a penalty or forfeiture : and this rule is not 
 confined to cases where the purpose of the action is to enforce 
 the penalty or forfeiture, but extends to those where the dis- 
 covery itself would expose the party to some action or suit, or 
 any criminal or penal pft)seeution tending to the like result. 
 Poindexter, &c. v. Davis et als., 6 Grat. 4^1. 
 24 
 
278 ISSUE OUT 01' CUAXCtlM', 
 
 ISSUE OUT OF CHANCERY, 
 
 1. The Court of Chancery having directed an issue, tie 
 jsarties waived the trial by jury, and submitted the question to 
 five persons mutually chosen by them, and agreed that their re- 
 port should be certified in lieu of a verdict. The court mtist 
 consider such report as an award, and to be governed by the 
 same rules and principles which prevail in cases of awards.-' — ' 
 Pleasants et al. v. Ross, 1 Wash. 156, 
 
 2. When an issue out of Chancery is tried, it is under the 
 superintendence of the court, who will prevent the introduc- 
 tion of improper testimony, and if the verdict be against evi- 
 dence, will certify this together with the verdict, whereupon 
 the Chancellor will not be satisfied. Ihid. 
 
 3. The Chancellor will in some cases direct a new trial of 
 an issue upon affidavits proving misbehaviour of the jury af- 
 terwards discovered ; but not upon afiidavits tending to prove 
 that the verdict is contrary to evidence. Ihid. 
 
 4. If the judge before an issue out of Chancery is tried, 
 certify the verdict to be against evidence, the Chancellor ought 
 not in general to be satisfied with it, but should set it aside 
 Souihall V. M'Keand et al., 1 Wash. 336. 
 
 5. When the allegations of the bill are denied by the an- 
 swer, and not proven by the evidence adduced on the part of 
 the plaintiff, the Court of Chancery on hearing the cause 
 ought to dismiss the bill, and not direct an issue to try the 
 points in controversy, Pryor v. Adams, 1 Call, 382. 
 
 6. The discretion of a Chancellor, in awarding an issue, is 
 to be exercised on sound principles, of which the Court of 
 AJ)peals will judge. Stanard v. Graves et al, 2 Call, 369, 
 
 7. After three verdicts to the same effect, the Court of 
 Chancery did right in decreeing according to the opinions of 
 the juries. Ibid. 
 
 8. A court of equity is not bound to grant a new trial, on 
 the judge's certificate that the weight of evidence was against 
 the verdict ; especially after two verdjcts in favor of the same 
 party. Moss v. Pines, 3 Call, 568. 
 
 9. Where an issue is directed by the Court of Chancery, to 
 be tried at law, any papers may be read at the trial of such 
 issue, which were read upon the hearing of the cause, or at a 
 former trial. ( Ch. Taylor.) M' Call v. Graham et al., 1 
 Hen. & Munf. 13; 
 
ISSUE OtfT OF CHANCERY. 279 
 
 10. After two ocmcurrin^ verdicts for the same party, on an 
 issue directed by the Chancellor to he tried at common law, he 
 is not bound to direct a neiv trial, though both verdicts were 
 in opposition to the opinions of the judges before whom the 
 issues were tried, and a verdict had originally been rendered 
 in favor of the other party. 31' Rae, Ex' or v. Wood'i Ex' or, 
 1 Hen. & Munf. 548. 
 
 11. The court before whom an issue out of Chancery is 
 tried, having been satisfied with the verdict of the jury, and 
 having overruled a motion for a new trial, to which opinion no 
 exception had been taken, the verdict ought forever to re- 
 main undisturbed. Paid et al. v. Paul, 2 Hen. & Munf. 
 535. 
 
 12. An issue out of Chancery ought not to be directed to 
 try a claim altogether unsupported by testimony, or a title not 
 alleged in the bill, but suggested in the answer without proof; 
 neither is this rule to be varied by the circumstance that in- 
 fants are interested. Paynes v. Coles, 1 Munf. 373. 
 
 13. Where the testimony to an important fact is such as to 
 leave it doubtful, the Court of Chancery ought to direct an 
 issue to ascertain it. Marshall v. Tlwmpson, 2 Miinf. 4J2 j 
 Bullock V. Gordon, Adm'r, 4 Munf. 450. 
 
 14. Upon a bill of injunction to prevent the sale, under an 
 execution, of slaves devised in trust, if the defendant allege 
 that the cestui que trust was entitled to the slaves by five 
 years' possession, before the death of the devisor, and the 
 truth of such allegation be doubtful on the evidence, the 
 Chancellor ought to direct an issue to ascertain that fact. 
 Gait et al. v. Carter, 6 Munf. 245. 
 
 15. Where a court of equity directs an issue, and the testi- 
 mony is conflicting the verdict should be conclusive. Carter 
 V. Campbell, Gilm. 159. Unless the issue were materially 
 variant from and inapplicable to the question controverted be^ 
 tween the parties. Ibid. 
 
 16. An issue will be directed on satisfactory proof adduced, 
 to try whether a will alleged to be lost, was in fact executed, 
 and what were its provisions. Brent v. Bold, Gilm, 211. 
 
 17. On a question whether an absolute bill of sale was in- 
 tended only as a security, the evidence being contradictory, a 
 court of Chancery ought to direct an issue, to try th^t point. 
 Knibh's Ex' or v. Dixon's Ex'or,\ Rand. 249. 
 
280 ISSUE OUT OF CHANCERY. 
 
 18. Where a court of Chasiocry has doubts, whether the 
 gale of a horse, or other property, is really intended as a shift 
 to evade the statute against usury, it ought to direct an issue 
 upon viva voce testimony, if to be had. Douglas v. M' Ghes- 
 ney, 2 Rand. 109. 
 
 19. If the evidence on a question of fact in a Chancery 
 suit, though various and conflicting, be such as ought to sat- 
 isfy the Chancellor's conscience as to the truth of the ease, he 
 peed not direct an issue to try the fact. Samuel v. Marshall 
 et ux. et al., 3 Leigh, 567. 
 
 20. Upon a bill in Chancery for relief against a contract 
 alleged to be usurious, the Chancellor directs an issue to be 
 tried at law, to ascertain whether the contract was usurious or 
 not; jury finds the contract usurious ; the judge of the court 
 of law certifies that the verdict, in his opinion, is contrary to 
 evidence ; the substance of the evidence is also certified, some 
 of which does not relate to the points put in issue by the 
 pleadings in equity ; the Chancellor, being satisfied that the" 
 verdict is right, refuses to set it aside, and to order a new 
 trial, and dismisses the bill. It was matter of sound discretion 
 whether the Chancellor should direct the issue, or decide the 
 questions of fact himself, and whether he should set aside the 
 verdict on the issue or not ; the verdict was properly refused 
 to be set aside and a new trial ordered ; he not being bound 
 in deference to the certificate of the judge of the court of law 
 against it. Grigsby v. Weaver, 5 Leigh, 197. 
 
 21. A court of Chancery directs issues of fact to be tried 
 at law without evidence regularly taken [before the court 
 touching the facts to which the issues relate, but there was evi- 
 dence which, if regular, would have rendered the order for 
 the issue proper : Held, that if the appellate court should set 
 aside the issues for being, in the actual state of the case, im- 
 properly ordered, it should, under such circumstances, remand 
 the cause to the Court of Chancery, where the evidence may 
 be regularly taken, and thereupon the issues ordered anew. 
 Watldns et ux. v. Carlton, 10 Leigh, 560. 
 
 22. Upon a trial at law of issues out of Chancery, excep- 
 tions are filed to the opinion of the court, and made part of 
 the record ; the court of law certifies the verdict, but it does 
 not expressly certify, nor is it asked to certify, the exceptions : 
 Held, all the proceedings upon the trial of the issue, spread 
 upon the record thereof, constitute part of the certificate of 
 the verdict, and with it becomes part of the Chancery record. 
 Jhid. 
 
pAeSieS. 28l 
 
 23. On a bill filed to enjoin a judgment on the ground that 
 the dAt on which it was founded was for money won by cards, 
 it being doubtful on the evidence, whether such was the con- 
 sideration ; or if it was, whether the plaintiff in the judgment, 
 who was a transferee of the debt, had not been indue sd to 
 take the transfer of the debt under the belief, induced by the 
 concealment or misrepresentation of the debtor, that the con- 
 sideration of said debt was good and lawful ; the court should 
 continue the injunction and direct an issue to ascertain the 
 facts. Nelson's Adm'r v. Armstrong ei als., 5 Grat. 354. 
 
 24. When the matter in controversy is of the nature of un- 
 liquidated damages, and the accuracy and credit of the wit- 
 nesses is impeached, an issue should be directed. Isler & 
 wife V. Grove & wife, 8 Grat. 257. 
 
 MARSHALLING ASSETS. 
 
 See " Parties." 
 
 OS.DER or PUBLICATION. 
 
 1. In a suit in which there is an absent defendant, the de^ 
 cree recites that the cause came on as to him upon the bill, 
 &c., and order of publication duly executed. This is conclu- 
 sive that the order was duly made, published in the newspaper 
 and posted at the front door of the court-house. Craig v. 
 SeU-ell, 9 Grat. 131. 
 
 PARTIES. 
 
 1. Where an attempt is made to subject land in the posses- 
 sion of a purchaser with notice, to an equitable lien, the per- 
 son under whom such purchaser claims, or his legal repre- 
 sentatives, ought to be parties to the suit. Wilcox v. Ual- 
 hway, 1 Wash. 38. 
 
 2. If A. gives a mortgage to C. to indemnify him against 
 his endorsement for A., a bill of quia timet may be brought 
 by C. against A.'s representatives, for a decree that they shall 
 pay B., and indemnify C. against his endorsement; but B.'s 
 representatives must be made parties to the suit. Gall v. 
 Scott et at., 4 Call, 402. 
 
 3. The heir, legatee or distributee, must either bring the ex- 
 ecutor or the administrator of the decedent before the court, or 
 administer himself, without which he cannot sustain a bill for 
 an account of the effects of the decedent, for it is not sufficient 
 
282 PARTIES. 
 
 to allege that the rights of his predecessors are all united in 
 him, as there may be outstanding claims to adjust. Morinrj 
 Y. Lucas et al., 4 Call, 577. 
 
 4. In a suit in equity against a mercantile firm, the execu- 
 tors of the deceased partners ought to be made parties. 
 Carter's Ex'or v. Currie, 5 Call, 158. 
 
 5. In bills in Chancery, brought for discovery, and for a 
 conveyance of land or other estate, all persons interested in 
 such land or other estate, ought to be made parties. Kei/'s 
 Ex'ors V. Lambert, 1 Hen. & Munf. 330. 
 
 6. A person losing a public certificate bearing interest, 
 which never was transferred to him by actual assignmect from 
 the original holder, ought not, by a suit in Chancery, to ob- 
 tain its renewal from the commonwealth, without making the 
 original holder a party to the bill. Auditor v. Johnson's 
 Ex'x., 1 Hen. &. Munf. 537. 
 
 7. A bill was filed in behalf of certain infants, against the 
 heirs of their guardian who died intestate, the sherifi" to 
 whom his estate was committed, (no administrator having qual- 
 ified,) his surviving surety in the bond given for the perform- 
 ance of his duty as guardian, and the administrator of the 
 other surety, as co-defendants. No process having been served 
 on a part of the heirs, nor on the surviving surety, a decree 
 against the administrator of the deceased surety was held to 
 be erroneous, because there were not proper parties convened 
 before the court, and the cause was remanded for farther pro- 
 ceedings. Bland's Adm'r v. Wi/atts, 1 Hen. &. Munf. 543. 
 
 8. After a judgment against an executor, and a retui-n of 
 "no effects," on an execution against the goods and chattels 
 of his testator, a suit in equity may be brought for a discovery 
 of the assets; to which suit, the securities of the executor, 
 and all other persons, (however remotely concerned in inte- 
 rest,) against whom a decree can be rendered, ought to be 
 made defendants. (Ch. Taylor,) Clarice v. Wehh et als., 1 
 Hen. & Munf. 8. 
 
 9. If a derivative purchaser, by assignment of a title bond, 
 file his bill against the vendor for specific performance, the 
 first purchaser or his representatives ought to be made parties. 
 Hoover v. Bonally et als., 3 Hen. & Munf. 816. 
 
 10. The vendee or his legal representatives ought to be par- 
 ties to a suit in Chancery, brought by the vendor against a 
 subsequent purchaser, to recover a balance alleged to be due 
 from the vendee. Duval v. Bibb, 4 Hen. & Blunf. 113. 
 
PARTIES. 283 
 
 11. in a suit for contribution against legatees oi: distri- 
 butees, tlie executor or administrator, or, if he be dead, the 
 person who succeeded him in the executorship or administra- 
 tion, ought to be made a party; unless it appear that the ac- 
 count of such executorship or administration has been regu- 
 larly made up, and the estate thereupon delivered over to the 
 legatees or distributees. Hooper et ux. v. Royster et ux., 1 
 Munf 119. 
 
 12. In a suit in Chancery to recover a tract -of land, against 
 a vendee, on the ground that the vendor had previously agreed 
 to convey the same land, in a certain event, to the plaintiff, it 
 seems, that the vendor, or his legal representatives ought to 
 be parties. Lewis v. Madisons, 1 Munf. 303. 
 
 13. If it appear, on the face of the record, that proper 
 parties to the suit are wanting, the decree will be reversed, 
 unless the objection was expressly relinquished in the court 
 below. Sheppard's Ex'or v. Starke et ux., 3 Munf. 29. 
 
 14. In a suit in Chancery, in behalf of a person who claimed 
 a share of a residuum, as purchaser from one of the legatees, 
 the administrator de bonis non, and children of the testator 
 were defendants to the bill; but proceedings were had against 
 two of them only, viz : tie legatee of whom the plaintiff 
 purchased, and another, who also claimed the same share by a 
 pretended purchase : — it appearing that, by a decree in a suit 
 in behalf of the administrator de bonis non, a division among 
 certain persons as residuary legatees, had been directed, and 
 one of the defendants now before the court, had been ordered 
 to pay to the other the share in question : yet it was deter- 
 mined that proceedings should have been had against all the 
 defendants ; and the cause was remanded to the court below 
 for that purpose. Purcell v. Maddox, 3 Munf. 79. 
 
 15. A judgment at law being obtained against one of two 
 obligors in a joint and several bond, and no proceedings to eit- 
 force it appearing, a court of equity ought not to charge the 
 lands of the other obligor in possession of his devisees, with- 
 out having made the obligor against whom the judgment was 
 rendered, or his representatives, parties to the suit. Foster et 
 ux. V. Crenshaw's Ex'ors', 3 Munf. 514. 
 
 16. A decree cannot be made against a widow, (restraining 
 her from conveying her right of dower,) in a suit to which 
 she is not a party as widow, but only as administratrix of the 
 decedent, and guardian of her children. Pennington v. Han- 
 hy, 4 Munf 144. 
 
284 PAfeTIES. 
 
 17. It is error to render a joint decree against two co-ex- 
 ecutors, when only one is before the court. Myrick v. Adams, 
 4 Munf. 866. 
 
 18. On a bill to surcharge and falsify an executor's account, 
 the legatees as well as the executor being defendants, if the 
 plaintiff direct the cause to be set for hearing after the execu- 
 tor has answered, but before the process against the legatees 
 has been served, and the cause be heard on the merits ; he 
 cannot object to the want of proper parties, or that the deci- 
 sion was premature. Wyllie et ux. v. Venable's Ex'or, 4 
 Munf. 369. 
 
 19. The court's dismissing a bill in Chancery, as to parties 
 who have not answered, and on whom a decree nisi has not 
 been served or published according to law, was error. Hen- 
 derson V. Anderson's Ex'x et ah., 4 Munf. 435. 
 
 20. On the hearing of a suit in Chancery, if it be dis- 
 covered that the cause is not matured for hearing as to some 
 of the defendaifts, against whom the plaintiiF appears to have 
 a claim in equity, the bill ought not to be dismissed upon the 
 merits j but only as to those defendants against whom there 
 is no equity : as to the other defendants, it should be sent 
 back to the rules for farther proceedings; notwithstanding the 
 plaintiff may have been negligent, and the cause was pre- 
 maturely set for hearing on his motion. Key v. Mord et als., 
 4 Munf. 485. 
 
 21. The officer who returned the writ and bail bond ought, 
 as well as the plaintiff at law, to be made a party defendant to 
 a bill of injunction filed by the person returned as bail, who 
 denies that he ever executed the bond; for the officer is inte- 
 rested in the question in controversy, .and should be a party, 
 that final and complete justice may be done. Spottswood v. 
 Sigginhotham, 6 Munf. 813. 
 
 22. A testator devises certain real property to be sold, and 
 the proceeds to be divided in different proportions among 
 several legatees, and appoints two executors, both of whom 
 unite in the sale of the said property : one of the legatees as- 
 signs his interest in the legacy to a third person ; the assignee 
 brings his suit in Chancery against one of the executors only, 
 and without making the other legatees interested in the sale 
 of the said property, parties : on both grounds it is error in 
 court to render a decree in favor of the plaintiff. The court 
 should also haVe an account of the sales of the said lands be- 
 
PARTIES. • 285 
 
 fore rendering a final decree for any particular sum, notwith^ 
 standing the defendants have not answered the bill, and it is 
 taken jm-o con/esso. Findlay Ex' or v. Sheffey, 1 Rand. 73. 
 
 23. Where land is scld under a deed of trust, and the 
 debtor impeaches the sale, he must make the purchaser a 
 party as well as the creditor. Chowning v. Cox et al., 1 
 Rand. 306. ' 
 
 24. All persons materially interested in the subject of con- 
 troversy ought to be made parties in equity, and if they are 
 not, the defect may be taken advantage of either by demurrer, 
 or by the court at the hearing. Ciark v. Long, 4 Rand, 
 451. 
 
 25. Therefore the purchaser of an equity redemption, can- 
 not file a bill to redeem against the mortgagee, without making 
 the mortgagor a party. Ibid. 
 
 26. The distributees of a deceased person, may maintain a 
 bill in equity to impeach and set aside a deed of gift of per- 
 sonal estate made by the decedent in his life-time, as fraudu- 
 lent, and the court may at their suit declare the deed fraudu- 
 lent and annul it; but the subject itself can only be decreed 
 to the personal representative of the deceased, or to the dis- 
 trilDutees, in a case in which the personal representative is a 
 party. Samuel v. Marshall et ux. et al., 3 Leigh, 567. 
 
 27. On a bill in State Court of Chancery, by a creditor, by 
 specially binding the heirs of the debtor, against the heirs, to 
 subject the lands descended to the debt ; it appears that these 
 lands have been sold, under a decree of the Federal court, to 
 satisfy debt of their ancestor, to the United States, as collector 
 of customs, before the hearing of this cause. The purchasers 
 under the decree of the Federal court ought as such, to be 
 made parties to this suit. King, Adm'r, &c. et ah. v. Ashley; 
 5 Leigh, 408. 
 
 28. In what case Chancery suit should be revived in the 
 name of the executor. Ruffners v. Lewis's Ux'ors et ah., 7 
 Leigh, 720. 
 
 29. The creditor of a firm obtains judgment against the sur- 
 viving partner, who dies, and his personal assets are exhausted 
 by the administrators in paying other claims. The creditor 
 files a bill in equity against the administrators and heir* of 
 the surviving partner and the 'representatives of the deceased 
 partner. The bill seeks a decree for the sale of lands owned 
 by the surviving partner and the firm, and when this fund is 
 
286 PARTIES. 
 
 exhausted, seeks to charge the representatives of the deceased 
 partner. Tlie representatives of the deceased partner were 
 rightly made parties. Jackson v. King's representatives, 8 
 Leigh, 689. 
 
 30. Distrihutees of a decedent may maintain a bill in equity 
 to assert their rights in the decedent's estate, though they 
 cannot have distribution thereof without having the executor 
 or administrator of the decedent before the court as a party in 
 the cause. Hansford, &c, v. Elliott, &c., 9 Leigh, 79- 
 
 31. After judgment recovered by vendor against two joint 
 vendees of land for a balance of the purchase money, one of 
 the vendees dies, and the other brings suit in equity against 
 the vendor, for deficiency in land. The representatives of the 
 (Jeceased vendee should be before the court. J)issentiente 
 Stanard, J. Crawford et al. v. M' Daniel, 1 Rob. 448. 
 
 32. In a suit by judgment creditor, to subject lands in the 
 hands of a hona fide purchaser from the debtor, pending 
 the suit the purchaser dies ; his heirs are necessary parties. 
 Taylor's Adm'r et ah. v. Spindle, 2 Grat. 44. 
 
 33. To a bill filed to subject the real assets in the hands of 
 the heirs to satisfy a debt of the ancestor, the administrator is 
 a necessary party. Beale's Adm'r v. Taylor's Adm'r et als., 
 2 Grat. 532. 
 
 34. In suit by an insolvent debtor, to compel payment of 
 the whole amount of an incumbrance stated to be due at the 
 time of sale of his equitable interest in property surrendered 
 by him, the creditors in the execution are necessary parties. 
 Tiffany v. Kent et als., 2 Grat. 231. 
 
 35. In a suit in equity by the claimant of an incumbrance 
 against a vendee having notice, a person who joined the vendor 
 in the deed for the purpose of relinquishing a collateral claim, 
 need not be a party. Blair v. Owles, 1 Munf. 38. 
 
 36. On a bill of injunction exhibited by the administrator 
 of a purchaser of a tract of land, against the administrator 
 and heirs of the vendor (in whom the legal title still remains,) 
 claiming compensation for a deficiency, and credits for pay- 
 ments, and a conveyance ; the court, on allowing the compensa- 
 tion and the credits, may decree that the defendants shall con- 
 vey their title to certain trustees, to be by them conveyed to 
 the heirs of the purchaser, (though not parties to the suit,) if 
 the balance of the purchase money be paid on or before a cer- 
 tain day ; and if not, with power to sell as much of the land 
 
MRTMS, 287 
 
 aa may be sufficient to pay suet balance, and to convey tbe 
 residue, if any, to the said heirs. Humphrey's Adm'r v- 
 M' Olenachan's Adm'r and heirs, 1 Munf. 493. 
 
 St. Where the division of a testator's estate, in pursnance 
 of his Will, is not to be made at one and the same time, but at 
 the several periods when any one or more of his children shall 
 separate from the family, it is not necessary that all the lega- 
 tees be made parties to each suit in Chancery for a division, 
 but only those entitled to participate in the division then in 
 question. Branch's Adm'x v. Booker's Adm!r, 3 Munf. 43. 
 
 38. A debtor, holding an equitable title to land, having 
 conveyed it by deed of trust to secure a creditor, and having 
 afterwards caused a conveyance of the legal title to be made 
 to another creditor, who had notice of the prior deed, need 
 not be a party to a bill in equity exhibited by the cestui que 
 trust to compel a conveyance of the legal title, and perform- 
 ance of the trust. Lambert V. Nanny, 2 Munf. 196. 
 
 39. Prior to the act of 1786, concerning partitions and 
 joint rights and obligations, two men, who were partners in a 
 drove of cattle, applied part thereof to a joint purchase of a 
 settlement right to land ; and one of them died : the survivor 
 had the land surveyed by virtue of a land office treasury War- 
 rant, and sold it to a third person, who, having notice of the 
 partnership right, obtained a gi-ant of the whole from the com- 
 monwealth : a purchaser from the heir of the deceased part- 
 ner was, nevertheless, entitled, in equity, to his share of the 
 land. Edgar v. Donally & Jones, 2 Munf. 387. 
 
 40. In such case, the surviving partner, and the purchaser 
 from him, being defendants to the bill, the heir of the de- 
 ceased partner is not a necessary party; a deed from him, con- 
 veying all his right to the plaintiff, being produced. Ihid. 
 
 41. Where a plaintiff in equity having the equitable title 
 to land, sues for the legal title, the person holding such legal 
 title, is a sufficient defendant, without making the person of 
 whom he purchased a party to the suit. Mayo v. ilurchie, 
 3 Munf. 358. 
 
 42. If the sheriff, after taking a forthcoming bond, accept 
 the same goods from the defendant, in discharge of his body 
 from another execution, and prevent the surety in such bond 
 from delivering them on the day of sale therein appointed ; a 
 court of equity, on a bill for discovery and injunction, exhib- 
 ited by the surety, will require the sheriff and all parties con- 
 
288 PARTIES; 
 
 cerned, to answer a charge of fraud and coitlbination, and 
 (whether fraud be established or not) will perpetually enjoin a 
 judgment rendered against the surety upon the forthcoming 
 bond, as unconscionable against him ; leaving the plaintiff, in. 
 that judgment, to his remedy against the sheriff, and the she- 
 riff to his remedy against the person who indemnified him, 
 or to whom, by mistake,^ or in his own wrong, he paid the 
 money in satisfaction of the second execution. Lush v. Ram- 
 my, 3 Munf. 417. 
 
 43. The plaintiff in the second execution, to satisfy which 
 the sheriff improperly sells the goods, need not be a party to 
 such suit in Chancery ; because the Surety in the bond wants 
 no decree against him. Ihid. 
 
 44. If a testator devise to his widow "her living," upon a 
 tract of land, during her life, and the same land to one of his 
 sons in fee-simple ; a bill in equity lies for partition of the 
 land among the heirs of that son, in the widow's lifetime, and 
 without making her a party, for the decree will be made 
 "subject to her rights." M' Clintio et al. v. Manns, 4 Munf. 
 328. 
 
 45. An injunction of a Court of Chancery inhibiting the 
 defendant and all other persons, from selling certain slaves until 
 the further order of the court, is conclusive, while in force, to 
 prevent their being lawfully sold to satisfy an execution against 
 him, even in favor of the person not a party to the suit ill 
 Chancery. West v. Belches, 5 Munf. 187. 
 
 46. In a court of equity a plaintiff may be decreed to exe- 
 cute a release and to procure a third person, (under whom he 
 claims,) to join him therein, without making such person a 
 party to the suit. Moon v. Camphell, 1 Munf. 600. 
 
 47. The assignee of a mortgage may maintain a suit to fore- 
 close, without making his assignor a party, if the legal title 
 has been conveyed to him. Newman v. Chapman, 2 Rand. 
 93. 
 
 48. Suit in which an heir of personal representative not a 
 necessary party in suit by legatee. Dahney's Adm'r, et ah. 
 V. Smith's legatees, 5 Leigh, 13. 
 
 49. Eight years after the death of an intestate who had no 
 child, his widow files a bill in equity to recover her moiety of 
 his personal estate, without making any other distributee a 
 party. The bill states that to the other moiety the dece- 
 dent's brother Cr. became entitled, he being his. only re- 
 
fAKTISS. 289 
 
 lation by consanguinity in the United States, the dece- 
 dent being a native of Ireland, and the administrator fully 
 satisfied and paid off the said G-. his share of the estate ; af- 
 terwards Gr. left this country, and either died, or, if livings it 
 IS not knov(-n where he is. This statement is not objected to, 
 or oontfoverted, until after a decree in favor of the wido'W' , 
 against the administrator and his sureties, when the decree is 
 appealed from, and the objection is made for the first time in 
 the Court of Appeals. The statement in the bill respecting 
 the neit of kin must be taken as true, and the objection is 
 therefore untenable; Moote's Adm'r v. George's Adtn'r, 10 
 Leigh, 228. 
 
 50. Slaves emancipated by will, need not be made parties to 
 a bill contesting iti Coalter's J^x'or V: Bryan et lix., et als., 1 
 Grat. 1^. 
 
 51. Justices who appoint a guardian, and take insufficient 
 security from him, are not proper parties to a Suit for the set- 
 tlement of his guardianship account; nor is the- clerk taking 
 such bond, a proper party. Ausim v. Richardson, 1 Grat. 
 310. 
 
 52. Bill charges that a person through whom defendant re- 
 ceived money, sought to be recovered, disclaimed any interest 
 in it, and directed defendant to deliver it to plaintiff. Bill de- 
 murred to — such party not a necessary party. Norihwestern, 
 
 , Bank V. Kelson, 1 Grat. 108. 
 
 53. Where a person has a mere interest in the question in- 
 volved in a suit in equity, arising out of a collateral liability, 
 though the decree may upon that question, be evidence for, or 
 against him in some future controversy, such interest does not 
 render him a necessary, or a proper party. Austin v. Rich- 
 urdson, 1 Grat. 310. 
 
 54. A will was dated in 1802, the testator died in 1815.^ 
 In 1827, the creditors of one of the administrators filed a bill 
 to subject his property conveyed in trust to indemnify his su- 
 reties in his administration bond, to the payment of his debt. 
 The legatees in the Will not being heard from up to that time, 
 are not necessary parties. Jones v. Lacldand et als., 2 Grat. 
 81. 
 
 55. In a contest about a will, a person, who was not a party 
 in the county court, may, by becoming interested after |n ap- 
 peal to the district court, be admitted a party there, and carry 
 up the cause to the Court of Appeals ; but, on reversing the 
 
 25 
 
290 PARTIES, 
 
 judgment of the district court, and affirming ttat of the 
 county court, such party can only recover the costs in the dis- 
 trict court. Coc/MIIy. Coghill, 2 Hen. & Munf, 467. 
 
 56. On an appeal from, an interlocutory decree, if proper 
 parties to the suit appear to be wanting,' the Court of Appeals 
 will not leave it to the Chancellor, hut will itself direct such 
 parties to he made. Hooper et ux. v. RoyUer et ux., 1 Munf. 
 HO- 
 ST. It is the course of a court of equity to decree in the 
 first instance against the party who is ultimately responsible, 
 but this is done only where the parties are before the court at 
 the time of the decree, and their several liabilities are clearly 
 ascertained. Garnett &c., \. Jfacoro ei a?., 6 Call, 308. 
 
 58. A court of equity ought not to dismiss a bill absolutely 
 for want of proper parties, the plaintiff showing enough to 
 give color to his claim for relief against the parties not before 
 the court; in such' case the Chancellor is right in giving 
 the plaintiff leave to amend and make the proper parties ' — ■ 
 Alkn et al. v. Smith, 1 Leigh, 231. 
 
 59. If one person to whom alone the right asserted in a bill 
 in Chancery appertains, and other persons who hare no right, 
 join in the bill, and the cause be proceeded in to a decree in 
 the Court of Chancery, without any objection there to ther 
 joining of improper parties plaintiffs in the bill ; upon appeal 
 from the decree to the Court of Appeals, the objection will 
 have only this effect in the appellate court, that the court will 
 consider the right as vested in the plaintiff entitled thereto, 
 and affected by his acts or omissions. Dickensons v". Davis et 
 al, 2 Leigh, 401. .. 
 
 60. A defendant in equity is charged as executrix and a& 
 devisee of a decedent ; in the caption of her answer, she pro- 
 fesses to answer only as executrix ; but in the body of her 
 answer she in fact answers as devisee: Held, such answer 
 places her before the court in her character of devisee. Kin- 
 ney's Ex'or V. Harvey, &c., 2 Leigh, 70. 
 
 61. Decree by default against defendants, who were not in 
 contempt upon any proper process, reversed for this irregular- 
 ity. Frazier, &c. v. Frazier's Ex'ors, dec, 2 Leigh, G42. 
 
 62. On an appeal from an interlocutory decree, correct on 
 the merits, but erroneous for want of proper parties, the court 
 will reverse the decree, but allow the appellees to recover costs, 
 as the jgirties substantially prevailing ; because an appeal from 
 
PAETIBS. 
 
 an interlocutory decree is only given to prevent tlie payment 
 of money, or change of property, or to settle principles. Cum- 
 ningham v. Patterson, 3 Kand. 66. 
 
 63. Want of proper parties to bill for setting aside will, is 
 no ground to reverse decree of dismission right on the merits. 
 Dissentiente, Tucker, P. Kincheloe v. Kincheloe, 11 Leigh, 
 893. 
 
 64. In a suit by a judgment creditor to subject lands in the 
 hands of a hona fide purchaser from the debtor, pending 
 the suit, the purchaser dies, his heirs are necessary parties, 
 Taylor's Adm'r et ah. v. Swindle, 2 G-rat. 44. 
 
 65. A slave claiming a right to freedom is not a necessary 
 party in a controversy between third persons, though his right 
 to freedom may be involyed in the controversy. M' Gandluh, 
 Adm'r v. Edloe et als., 3 Grat. 330. 
 
 66. A bill should not be dismissed for defect of parties, if 
 plaintiif has shewn himself entitled to relief on the merits ; 
 liut he should be allowed to amend his bill and make the ne« 
 cessary parties. Jameson's Adm'r v. Deshields, 3 Grat. 4, 
 
 67. All the persons secured by a deed of trust, either di- 
 rectly or indirectly, who are named in it, are necessary parties 
 to a bill assailing the trust deed as fraudulent as to some of 
 the cestuis que trust, and seeking a distribution of the trust 
 fund. Billwps v. Sears et ah., 5 Grat. 31. 
 
 68. In a suit brought by a trustee of a married woman, to 
 assert and defend her rights, in which a full opportunity is 
 afforded the cestui que trust to protect her rights, it is not ne- 
 cessary that she should be made a party. Woodson, trustee 
 V. Perkins, 5 Grat. 345. 
 
 69. One of two administrators having taken no active part 
 in the administration and having died, his administrator is not 
 a necessary party to a bill filed by the distributee of the intes- 
 tate for an account of the administration of the estate. 
 Will's Adm'r v. Dunn's Adm'r, 5 Grat. 384. 
 
 70. The widow of the intestate having received her third 
 of the estate and died, her administrator is not a necessary 
 party to a suit by the only child of the intestate to recover his 
 proportion of the estate from the administrator. Ibid. 
 
 71. Legatees having been in possession of slaves for nearly 
 five years, may file a bill to enjoin the sale of them under ex- 
 
Z PARTIES. 
 
 ecution against a third person, without making the executor a 
 party, though it does not appear he ever assented to the legacy. 
 Kelly V. Scott, 5 Grat. 479. 
 
 72. Though a deed of trust secures creditors in several , 
 classes, one or more may sue for the benefit of all, to have the 
 trusts executed, where the trustees refuse to act. Reynolds 
 V. The Bank of Virginia, et als., 6 Grat. 174. 
 
 73. To a bill to set aside fraudulent conveyances made by 
 an insolvent debtor, the trustees and cestuis que trust in the 
 deeds, the sheriffs of the counties in which the lands lie and 
 the execution creditors interested in the property, should be 
 parties. ClougJt, &c. v. Thompson, 7 Grat. 26. 
 
 74. In a suit by residuary legatees against the executor for 
 a distribution of the estate, the specific legatees should be 
 parties, unless it appears that their legacies have been paid. 
 Nelson's JSx'or v, JPage et ah., 7 Grat. 160. 
 
 75. In a creditor's suit either by foreign attacbment or to 
 marshal assets, against heirs residing abroad, the lands de- 
 scended having been sold under a decree at the suit of the 
 heirs, and the proceeds being in the hands of a commissioner, 
 be should be a party as such ; and his being a party as ad- 
 ininistrator of the deceased debtor is not enough. Carring- 
 ton et als. v. Didier, Ncmell, & Co., 8 Grat, 260. 
 
 76. In a bill by persons claiming to be legatees or assignees 
 of legatees, against defendants as legatees or assignees of 
 legatees, under the same will, for distribution of the slaves 
 bequeathed to the legatees jointly, the presumption is, in the 
 absence of all pleadings and proofs to the contrary, that the 
 persons made parties to the suit as legatees are not fictitious 
 persons or mere pretenders to the characters assumed in the 
 proceedings. JBall et als. v. Johnson's Ex' or, et als., 8 Grat. 
 281. 
 
 77. In a case last above cited, the case being a proper one 
 upon its merits for distribution of the subject among those en- 
 titled thereto, the bill should not be dismissed for want of 
 parties or of proof that the parties were what they professed 
 to be ; but the court should direct the plaintiffs to amend 
 their bill and make the proper parties. Hid. 
 
 78. A personal representative of a deceased insolvent co- 
 obligor is not a necessary party to a suit in equity by the ex- 
 ecutrix of the obligee agai»st tbe administratrix of one of the 
 
RBVIVOK. 293 
 
 obligors, to enforce payment of the bond, so as to irequire the 
 plaintiff to have one appointed and make hitn a party. Mon- 
 tagues' Ex'x. v. Turpin's Adm'x, 8 Grat. 453. 
 
 79. All the sureties of an executrix should be parties to a 
 suit by legatees for distribution, or a. sufficient excuse should 
 be shewn for failing to make them parties, before a decree is 
 made against one of them. Mutcherson, &c. v. Fiqg, 8 Grat. 
 220. ^ 
 
 80. L. buys lands of D. and T. and gives to each his bonds 
 for his share of the purchase money. The contract is after- 
 wards rescinded, but before this is done, D. assigns one of the 
 bonds. On a bill to enjoin a judgment recovered on this 
 bond by the assignee, T. is not a necessary party. Drake Vi 
 Lyons, 9 Grat. 54. 
 
 81. A bill is filed to subject lands to the satisfaction of a 
 judgment, after the death of the debtor and charges fraud in 
 certain conveyances from the debtor to his son. The son hav- 
 ing conveyed some of the lands to third persons, all such per- 
 sons must be made parties. Senderson v. Senderson's Ex'x., 
 9 Grat. 394. 
 
 82. In a bill by a surety whose principal is dead, to compel 
 his executor to pay the debt. The creditor is a necessary 
 party. Stephenson v. Taverners, 9 Grat. 398. 
 
 83. A bill to marshal assets and for administration should 
 be in behalf of all the creditors and the heirs and devisees 
 should be parties. Ibid. 
 
 84. In general one distributee cannot maintain a suit to re- 
 cover his distributable share of the estate, without making the 
 other distributees parties. Sellings et als. v. Biimgardnerj 
 guardian, 9 Grat. 273. 
 
 UEVIVOR. 
 
 1. A suit in Chancery for a conveyance of land, if the de- 
 fendant die before a final decree, ought to be revived against 
 his heirs and devisees, and all other persons holding, claim- 
 ing, or in any manner interested, under him, in the land in 
 question. Key's Ux'ors v. Lambert, 1 Hen. & Munf. 330. 
 
 2. An appeal having abated at one term, by the death of 
 the appellant, at the next term a scire facias was awarded on 
 the motion of his administrator, (who qualified since the 
 abatement,) for the appellee to show cause why the appeal 
 
EEVIVOPvJ 
 
 should not be revived. CHhhs v. PerJtvhson, 2 Hen. & Munf. 
 211. 
 
 3. An appeal having abated at March term by the death of 
 the appellant, a scire facias to revive it may be awarded at 
 the ensuing October term. Buster v. Wallace, 3 Hen. & 
 Munf. 217. 
 
 4. Where the appellee dies, the court will not take up the 
 appeal in the name of the executors, without giving the appel- 
 lant notice by a scire facias, especially where a great length of 
 time has elapsed since the appeal. Scott v. Adams, 3 Hen. 
 &Munf. 501. 
 
 5. An appeal from, or supersedeas to, an order quashing an 
 execution against tw6 defendants, need not, if one of them 
 die, be revived against his representative, but should be pro- 
 ceeded on as to the other only. Bullit's Ex'ors v. Winstons, 
 1 Munf 269. 
 
 6. Pending a suit against the committee of an insane per- 
 son, if the latter die, and a sci. fa. to revive the suit be issued 
 against his administrators, who thereupon appear by counsel, 
 and go to trial on the issue joined between the plaintiiFs and 
 the committee, they cannot take an objection in the appellate 
 court, that the suit ought not to be revived against them. 
 Paradise's Ad'ors v. Cde et al., 6 Munf. 218. 
 
 7. Qusere : Whether a suit against the committee of an in- 
 sane person may not properly be revived against the adminis- 
 trators of such person, in the event of his dying during its 
 pendency. Ibid. 
 
 8. Four plain tififs in equity unite in the same bill, praying 
 an injunction to stay proceedings on four several judgments at 
 law against them, respectively, on grounds of equity common 
 to iall ; the bill is exhibited against five parties, defendants ; 
 the injunction awarded ; pending suit, two of plaintiffs and 
 three of defendants die, and Chancellor makes an order, that 
 unless living plaintiffs, and representatives of deceased plain- 
 tiffs, revive the injunction, in name of representatives of de- 
 ceased plaintiffs, against representatives of deceased defendants, 
 on or before a given day, the injunction shall stand and be 
 dissolved : this order is irregular and erroneous. M'Kays v. 
 Eite et al., 2 Leigh 145. 
 
 9. When bill for partition should be revived in name of ex- 
 ecutor, instead of the heir of the plaintiff. Ruffners v. Lewis's 
 Ex'ors, et ah., 7 Leigh, 720. 
 
SEQUESTRATION &C. 
 
 29^ 
 
 10. . After a decree ascertaining the rights of the plaintiflFs 
 in respect to the land, and after partition made and a convey- 
 ance directed to L. of the moiety sued for, he died ; Held : 
 that as the suit was then proceeded in for the rents and profits 
 only, to which the executors of L. were entitled, it was pro- 
 per to revive it in their names and not in the names of the 
 heirs of L." Ihid. 
 
 SEQUESTRATION. 
 
 1. A sequestration is proper, if the defendant obstinately 
 lies in jail to save his estate or exhausts it in paying other 
 creditors, to the injury of the plaintiff. Ross v. Colville & Co., 
 3 Call, 382. 
 
 SUPPLEMENTAL BILL. 
 
 1. After publication of depositions, and the cause set down 
 for hearing the original bill cannot be amended by making 
 new parties, or charging a new fact, but a supplementary bill 
 may be offered. (CA. Taylor, ") Pleasants v. Logan, 4 
 Hen. & Munf. 489. 
 
III. 
 
 Sunvma/ry of decisions affecting questions of Equity pleading 
 and practice in the Circuit Courts of the United States, 
 made by the Vhited States Supreme Court. 
 
 ANSWERS. 
 
 See title "Bills." 
 
 1. The weight of an answer by a corporation, under their 
 corporate seal' is very much lessened, if not wholly destroyed, 
 by not being under oath. Union Bank r. Geary, 5 Pet. 99. 
 
 2. Where a bill charges the defendant with notice of a par- 
 ticular fact, an answer must be given without a special inter- 
 rogatory; but a defendant is not bound to answer an interroga- 
 tory, not warranted by some matter contained in a former part 
 of the bill. Mechanics Bank v. Lynn, 1 Pet, 376. 
 
 BILLS. 
 
 See title " Discovery." 
 
 1. The material facts on which a complainant relies for re' 
 lief must be so alleged in his bill as to put them in issue, or 
 the relief cannot be granted, though the facts be proved. 
 Harding v. Hardy, 11 Wheat. 103. 
 
 2. No admissions in an answer to a bill in chancery can, 
 under any circumstances, lay the foundation for relief under 
 any specific head of equity, unless it be substantially set forth 
 in the bill. Jackson v. Ashton, 11 Pet. 229. 
 
 3. No relief can be given unless a proper case be made in 
 the bill, and supported by proof. Knox v. Smith, 4 How. 
 298. 
 
 4. Where a bill is filed to recover an interest in lands in 
 Ohio by one claiming under a will made and proved in an- 
 other State, it must appear on the face of the bill, that the 
 will has been proved and recorded in Ohio, according to the 
 requisitions of the statutes of that State in such cases, in or- 
 der to give the same validity and efiect to the will, as if made 
 in Ohio. Kerr v. Moon, 9 Wheat, 565. 
 
BILLS. 297 
 
 5. A OQurt of eqjulty cannot act upon a ease wUch is not 
 fairly made by tlie bill and answer ; but it is not necessary 
 that these should point out in detail the means which the 
 court should adopt in giving relief under the general prayer 
 for relief, beyond the specific prayer, and not esjactly in ac- 
 cordance with it. Walden v. Bodley, 14 Pet. 156. 
 
 6. Where a case for relief is made by the bill, it may be 
 given by imposing conditions on the complainant, consistently 
 with rules of equity in the discretion of the court, Ihid, 
 
 7. The party may frame his bill with a double aspect so 
 that if the court decide against him upon one view of the 
 case it may aflford him relief in another. Hobson v. Jfc-. 
 Arthur, 16 Pet. 195. 
 
 8. In general terms, a bill is said to be multifarious which 
 seeks to enforce against different individuals demands which 
 are wholly disconnected. Gaines v. Chew, 2 How, 619. 
 
 9. As to what constitutes multifariousness, it is impossible 
 to lay down a general rule ; every case must be governed by 
 its own circumstances, and the court must exercise a sound 
 discretion on the subject. Gaines v. Chew, 2 How. 619 j 
 Oliver V. Piatt, 3 How. 333. 
 
 10. Where a bill was filed against executors, denying the 
 authority of the executors to act as such in the premises, and 
 to recover property sold by them as such, it was held, that the 
 bill was not multifarious, because the purchasers of such pro- 
 perty were made co-defendants with them. Gaines v. Chew, 
 2 How. 619. 
 
 11. So it is improper to pray for an account by the execu- 
 tors alone in such bill. Ihid. 
 
 12. The objection of multifariousness cannot, as a matter 
 of right be taken by the parties, except by demurrer, or plea 
 or answer ; and if not so taken, will be deemed to be waived 
 and cannot be insisted on at the hearing. Oliver v. Piatt, 
 8 How. 333. 
 
 13. But the court itself may make the objection where it ia 
 necessary and proper to the due administration of justice; 
 though it will not, where it can get on to a final decree with- 
 out embarrassment; the objection cannot be taken in an ap- 
 pellate court. Ibid. 
 
 14. Relief will not be given on the ground of fraud unless 
 it be made a distinct allegation in the bill, so that it may be 
 put in issue in the pleadings. Patton v. Taylor, 7 How. 132, 
 
298 BILLS — DECREES, *C, 
 
 15. A court of equity lias jurisdiction of a bill against the 
 administrator of a deceased debtor, and a person to whom real 
 and personal property was conveyed by the deceased debtor 
 for the purpose of defrauding creditors. Hagan v. Walker, 
 14 How. 29. 
 
 16. Where, on a bill for discovery and relief, a discovery is 
 obtained, but the court has not jurisdiction to grant relief, 
 there being a complete remedy at law, it is proper to dismiss 
 the bill in respect to the relief prayed, but it should be with- 
 out prejudice to the rights of the parties at law. Sorsehurgh 
 V. Baker, 1 Pet. 232. 
 
 17. Under the prayer for general relief in a bill, such relief 
 only can be granted as the case stated in the bill, and sus- 
 tained by the proof, will justify. Hobson v. Mc Arthur, 16 
 Pet. 182. 
 
 18. The dismission of a bill to enforce a specific perform- 
 ance of a contract for the sale of land, where the vendor can 
 make a good title, is a bar to a new bill, for the same object. 
 Jlejpburn v. Dunlop, 1 Whe3.t, 179. 
 
 OOMMISSIONEES, 
 
 See title "Masters in Chancery." 
 
 DECKBES, 
 
 1. Where a joint liability is asserted in a court of equity, 
 the decree must be made against all the parties before it, who 
 do not show some personal discharge. Mandeville v. Riqqs, 
 2 Pet. 482. 
 
 2. A decree directing certain acts to be done to enable a 
 party to execute certain duties assigned to him, and dismissing 
 the bill, is erroneous, as it places the cause out of the power 
 of the court; and it is no answer to such objection, that the 
 acts ordered have been performed. The error is in the decree. 
 GreenleafY. Queen, 1 Pet. 138. 
 
 3. In rendering a decree in chancery, the rights of the par- 
 ties at the time are to be considered, and not as they were at 
 the time of the institution of the suit. Randel v. Brown, 2 
 How. 406. 
 
 4. Where it appears by the final decree that all the excep- 
 tions taken to the report of a master were disposed of, being 
 albwed or disallowed, this is sufficient, though it does not ap- 
 
&ECEEES. 299 
 
 pear that they Were formally allowed or overruled. Oliver v, 
 Piatt, 3 How. 333. 
 
 5. It is a settled rule that a decree must conform to the al-* 
 legations in the pleadings, as well as to the proofs in the 
 cause. Crochet v. Lee, 7 Wheat. 522. 
 
 6. But where on appeal it appears' that the decree is errone- 
 ous in this respect, and it also appears that it may be correct 
 on the merits, the cause will be remanded with directions that 
 the parties be permitted to amend their pleadings. Crochet 
 V. Lee, 7 Wheat. 522. 
 
 7. A complainant in equity cannot obtain a decree for more' 
 than he has asked in his bill. Simms v. Guthrie, 9 Cranch. 
 19. 
 
 8. A verdict and judgment in a cotirt of common law, or a 
 decree of a court of equity, is conclusive between the same' 
 parties upon the same subject matter. Hophins v. Lee, 6! 
 Wheat. 109; Banh of United States V. Beverly, 1 How. 134, 
 
 9. And it makes no difference that the judgment or decree* 
 IS an affirmance by a divided court, Washington Bridge Co. 
 T. Steioart, 3 How. 413. 
 
 10. Ho* far a decree in a former case, the record of which 
 is made proof in the case before the court, is binding, so far' 
 £ls relates to proof of exhibits, upon those defendants who are 
 neither parties, privies, nor pendente lite purchasers. See 
 Kerr v. Watts, 6 Wheat, 550. 
 
 11. A decree dismissing a bill generally, may be set up ia 
 bar of a second bill having the same object in view ; but a 
 dismissal on the ground that the court had not jurisdiction, 
 showing that no decision Was had on the merits, will not bar 
 a subsequent suit. Walden v. Bodley, 14 Pet. 156i. 
 
 12. Where the answer to a hill sets up the dismission of a 
 former bill by the same complainant against the same defend- 
 ant, praying the same relief, but the record in the former case 
 is not set out nor exhibited, it cannot avail- United States 
 Banh v. Beverly, 1 How. 134. 
 
 13. A decree of foreclosure and sale of the premises, in a 
 bill to foreclose a mortgage, is a final decree ; and a sale under 
 the decree after the death of a defendant, without a revival of 
 the suit, is not an error for which the decree will be reversed 
 on a bill of review. Whiting v. Banh of United States, 13 
 Pet. 6. 
 
BOO DECftEES. 
 
 14. In equity, a final decree, or an interlocutoi^ deei'ee) 
 Vrliioli decides, to a great extent, the merits of a cause, ought 
 not to be made until all the parties to the hill, and all parties 
 in interest, are before the court. Conn v. Penn, 5 Wheat. 
 424; Marshall v. Beverley, 5 Wheat. 313; 
 
 15. But this equitable rule is made by the court itself, and 
 is subject to its discretion; and if a case may be completely 
 decided as between the litigant parties, the circumstance that 
 an interest exists in some other person whom the process of 
 the court cannot reach, as if he be a resident of another State, 
 ought not to prevent a decree upon the meritsi Elmendorf v. 
 Taylor, 10 Wheat. 152; Marr r. Sonthwick, 2 Porter, 351; 
 Wiser V. Blackly, 1 John. C. R. 437. 
 
 16. It is the settled practice in the courts of the United 
 States, if the suit can be decided on its merits, between those 
 •who are regularly before them, although other persons, not 
 within their jurisdiction, may be collatera,lly or incidentally 
 concerned, who must have been made parties, if they had 
 been amenable to its process, that these circumstances shall 
 not expel other suitors, who have a constitutional and legal 
 right to submit their case to a court of the United States, 
 provided the decree may be made without affecting their inte- 
 rests. Vattier v. Hinde, t Pet. 252. 
 
 17. If defendants have distinct interests, so that substantial 
 justice can be done by decreeing for or against one or more of 
 them, over whom the court has jurisdiction, without affecting 
 the interests of others, over whom it has not jurisdiction, its 
 jurisdiction may be exercised as to the former. Ibidi 
 
 18. On a bill for the conveyance of real estate, a decree for 
 the complainants was reversed on appeal because A., through 
 whom some of the defendants claimed, was not made a party. 
 A. was afterwards made a defendant by an amended bill When 
 he answered, disclaiming all interest in the suit, and the bill 
 was by consent dismissed as to him. The court had not juris-' 
 diction of A., he not being a citizen of the same State, With 
 the other defendants. Held, — that the right of the court to 
 exercise jurisdiction over the other defendants Was not affected 
 by the dismissal as to him, over whom it had no jurisdiction, 
 as his rights could not be affected by a decree for or against 
 the others. Ihid. 
 
 19. Pending a bill against a tinastee in a deed of trust of 
 real estate to secure debts he died, and administration being 
 granted to A., he was, on petition of the creditors interested 
 
DECREES — JDEMtlRRERS. 301 
 
 in the trust, made the substituted trustee, and a decree was 
 rendered against Mm, as such, on the bill directing him to 
 make certain conveyances. Held, — that the decree was in- 
 Valid, and that the decree should have been against A. as ad- 
 ministrator, or that a supplemental bill, in the nature of a bill 
 of revivor, should have been filed against A. as substituted 
 trustee, in which all the proceedings should be stated, and 
 he be required to answer the allegations in the original and 
 supplemental bill. Greenleaf v. Queen, 1 Pet. 138. 
 
 20. Where a party asking the aid of a court of equity re- 
 fuses to comply with the conditions upon which that aid must 
 depend, the court may refuse its aid, and dismiss the bill ; but 
 it would be ,harsh to make the decree of dismission a bar to a 
 future action. Conn v. Penn, 5 Wheat. 414. 
 
 21. Where an appellee had died after the commencement 
 of the term, and the court, not knowing of his decease, heard 
 the case, and decided thereon, they directed the decree to be 
 entered as of the first day of the term. Bank of United 
 States V. Weisiffer, 2 Pet. 481. 
 
 22. A decree for a sale, made with the approbation of 
 counsel filed in court, removes all preceding technical objec- 
 tions. Kennedy et ah. v. Georgia State Bank, 7 How. 586. 
 
 DEMURRERS. 
 
 1: If any part of a bill is good, and entitles the complain- 
 ant to either relief or discovery, a demurrer to the whole bill 
 cannot be sustained. Livingston v. Story, 9 Pet. 632. 
 
 2. Where fraud is alleged in a bill and relief is prayed 
 against a judgment and a judicial sale of property, a demur- 
 rer to the bill that relief can be had at law is not sustaina- 
 ble. Shelton V. Tifin, 6 How. 163. 
 
 3. Where a bill in Chancery stated that at an execution sale 
 which was alleged to have been open to competition, regular 
 and fair, the complainant purchased for $600 certain promis- 
 sory notes, secured by mortgage, amounting in the whole to 
 $260,000. The bill was demurred to in the Circuit Court, 
 and the Circuit Court sustained the demurrer. The United 
 States Supreme Court reversed the judgment of Circuit Court 
 on the demurrer, (mere inadequacy of price not of itself fur- 
 nishing a sufiicient reason for dismissing the bill or deciding 
 that the complainant was entitled to no relief whatever. Erwin 
 v. Parhaw, 12 How. 197. 
 
 26 
 
802 Depositions. 
 
 DEPOSITIONS. 
 
 1. Where by the written consent of counsel, depositions ta- 
 ken in another cause were read in evidence at the hearing 
 without objection, and the decree thereon was afterwards re- 
 versed on appeal, and the caflae remanded for further pro- 
 ceedings, and on the second hearing the defendant objected to 
 such depositions as evidence, on the ground that the reversal 
 of the decree annulled the consent to their admission, it was 
 held that such consent was co-extensive with the cause, and 
 not limited to the first hearing, and that the depositions were 
 admissible. Vattier v. Hinde, 7 Pet. 252. 
 
 2. The deposition of one defendant in chancery is not ad- 
 missible against his co-defendant, unless he is made a disinter- 
 ested witness by being discharged from all joint liabilities, and 
 semble, that a certificate of discharge from all debts and con- 
 tracts prior to the date of the discharge under the act of As- 
 sembly of Khode Island, of 1757, although the debt in suit 
 was contracted prior to such discharge, will not make one a 
 disinterested witness where' the debt was contracted in a for- 
 eign country. Clark v. RieTnsdyclc, 9 Cranch, 153. 
 
 • 3. Although no relief can be had against a certificated 
 bankrupt or insolvent, who is a party defendant to a bill and 
 he is not, therefore, a necessary party to the bill, yet he can- 
 not be examined as a witness in the cause without an order on 
 motion for that purpose. DeWolf v. Jolmson, 10 Wheat, 
 367. 
 
 4. The cross-examination of a witness by the opposite party 
 is considered a waiver of irregularity in taking the deposition. 
 Mechanics Bank v. Seton, 1 Pet. 299. 
 
 5. A certificate of the person before whom the deposition 
 was taken under the 30th section of judiciary act of 1789, 
 that neither the adverse party nor his attorney lived within 
 one hundred miles of such place, and that, therefore, no notice 
 was made out, is sufiicient. It is not necessary for him to 
 state that they were not actually within one hundred miles. — 
 If they had been temporarily within that distance and the cer- 
 tifying officer did not know it, the certificate would still have 
 been good. Dick et ah. v. Runnels, 5 How. 8. See Harris 
 v. Wall, 7 How. 693. 
 
 6. If either of the two facts, auz : that the party resided 
 within 100 miles, or that ho was temporarily within that dis- 
 
DISCOVERY — EVIDENCE. 303 
 
 tanoe, and that the magistrate knew it, was established by 
 parol proof, the certificate would then be irregular and void. 
 Ibid. 
 
 BISCOVERY. 
 
 1. After answer and discovery, the rule is, that a suit 
 brought n^erely for discovery, canpot be revived. Horshury 
 V. Baker, 1 Pet. 232. 
 
 2. Where the only ground of equitable jurisdiction is the 
 discovery of facts solely within the knowledge of the defen- 
 dant, and the defendant, by his answer, discloses no such facts, 
 and the plaintiff supports his claim by evidence in his own 
 possession, unaided by the confessions of the defendant, the 
 plaintiff should be dismissed from the Court of Chancery, and 
 assert his rights in a court of law. Russell v. Clark, 7 Cranch, 
 69. 
 
 3. A party is not bound to make any discovery which would 
 expose him to penalties. United States v. Saline Bank, 1 
 Pet. 100. Northrop v. Hatch, 6 Conn. 361. Skinners. Jud- 
 son, 8 Conn. 528. 
 
 4. Parties claiming under a deed not executed and recorded, 
 so as to be valid against subsequent purchasers without notice, 
 may go into equity for a discovery, and if notice is brought 
 home to the subsequent purchasers, the complainants will be 
 entitled to a decree quieting their title. Findlay v. Hinde, 
 1 Pet. 241. 
 
 5. An assignee of an assignee of a co-partner in a joint 
 purchase and sale of lands, can maintain a bill of discovery 
 against the other co-partners, and the agent of the partner- 
 ship, to ascertain the quantity purchased and sold, and for an 
 account and distribution. Pendleton v. Wamhasie, 4 Cranch, 
 73. 
 
 EVIDENCE. 
 
 See title "Depositions." 
 
 1. A copy of a deed from a olerk of the court, without the 
 certificate of the presiding Judge, that the attestation of the 
 clerk is in due form, cannot be received as evidence in a suit 
 in equity. Drummond v. Magruder, 9 Cranch, 122. 
 
 2. A plat referred to in the deed as being annexed to it, but 
 which was never in fact annexed, and was not recorded with 
 
304 EVIDENCE. 
 
 the deed, affords no evidence in aid of the deseiiption of the 
 property mentioned in the deed. Shinas v, Craig, 7 Cranch, 
 34. 
 
 3. Entries in registers of burials, and in a family Bible, of 
 the time of the death of a member of the family, are evidence 
 to show the time of a person's decease, Lewis v. Marshall, 
 5 Pet. 469. 
 
 4. If the answer neither admits nor denies the allegations 
 of the bill, they must be proved upon the final hearing. — 
 Young v. Grundy, 6 Cranch, 51. 
 
 5. A complainant in equity may have reljef even against the 
 admissions in his bill. Finley v. Lynn, 7 Cranch, 238. Sed 
 quasre. 
 
 6. The answer of a defendant, where it is responsive to the 
 bill, is evidence against the plaintiff. Field v. Holland, 6- 
 Cranch, 8. Russell v. ClarJe, 7 Cranch, 69. 
 
 7. Where a cause is set down for hearing upon the bill, an- 
 swer and exhibits, the whole of the answer must be consider- 
 ed as true. Leeds v. Marine Ins. Co., of Alexandria, 2 Wheat, 
 380. 
 
 8. If the answer of the defendant admits a fact alleged in 
 the bill, but insists on matter of avoidance, the complainant 
 need not prove the fact admited, but the defendant must prove 
 the matter in avoidance. Clarke v. White, 12 Pet. 178. 
 
 9. A policy of insurance contained a stipulation, that if the 
 assured then had, or thereafter should have, any other insu- 
 rance upon the same property, notice thereof should , be given 
 to the insurance company, and the same be indorsed upon the 
 policy, or otherwise acknowledged by the company, in default 
 of which the policy should cease. A loss of the property 
 accruing, the assured filed a bill against the company, alleging 
 notice of a subsequent insurance upon the same property to 
 the defendant, and praying that the company might be com- 
 pelled to endorse the notice upon the policy, or otherwise ac- 
 knowledge it in writing. The answer of the company, sworn 
 to by the then president, denied the notice to the best of his 
 knowledge and belief. Held : that the answer being respon- 
 sive to the bill, and denying the allegation under oath, the 
 general rule applied and the allegation of the bill must be 
 proved by two witnesses, or one witness, and other evidence. 
 Carpenter v. Providence Washington Jns. Co., 4 How., U. S. 
 185, 
 
eVidbnce. 305 
 
 10. When facts alleged in the complainant's bill are denied 
 in the answer, they must be proved by two credible witnesses, 
 or one witness and strong corroborating circumstances. Lee v. 
 Montgomery, Walker, 109. Hughes t. Blahe, 6 Wheat. 453. 
 Union Bank v. Geary, 6 Pet. 98. 
 
 11. An answer in chancery, although positive and directly 
 responsive to the allegations in the bill, may be outweighed by 
 circumstances, especially if the answer be respecting facts 
 which in the nature of things, cannot be within the personal 
 knowledge of the defendant. Glark v. Van Riemsdyck, 9 
 Cranch, 153. 
 
 12. As a general rule, the answer of one defendatit cannot 
 be used as evidence against his co-defendant. Leeds v. Ma- 
 rine Ins. Go. oj Alexandria, 2 Wheat, 380. Osborn v. Bank 
 of U. States, 9 Wheat, 738. 
 
 13. The answer of oiie defendant is evidence against a co- 
 defendant, who is his privy in estate, or who claims through 
 him. Morris v. Foote, 2 Geo. Decis. 119. Field v. Holland^ 
 6 Cranch, 8. 
 
 14. The answer of an agent is not evidence against his 
 principal, nor are his admissions in pais, unless where they are 
 a part of the res gestae. Leeds v. Marine Ins. Co. of Alexan- 
 dria, 2 Wheat, 380. 
 
 15. The plaintiffs cannot avail themselves of the answer of 
 a defendant, who is substantially, though not in form, a plain- 
 tiff. It is not evidence against a co-defendant. Field v. Hol- 
 land, 6 Cranch, 8. 
 
 16. The answer of one defendant in chancery, admitting 
 the authority of the agent of both defendants to draw a 
 bill of exchange, is not evidence against his co-defendant, un- 
 less such a partnership is established as would authorize the 
 draft of the agent as one of the parties. Clark, v. Van Riems- 
 dyck, 9 Cranch, 158. 
 
 17. Where one defendant succeeds to another, so that the 
 right of the one devolves on the other, and they become pri- 
 vies in estate, the rule does not apply. Osborn v. Bank of U. 
 States, 9 Wheat. 738. 
 
 18. The loss of a writing must be proved before parol evi- 
 dence of its contents can be given. Bouldin v. Massie, 7 
 Wheat. 122. 
 
 19. But where a bill was filed by the heir of the warrantee 
 
306 EVIDBNCEi 
 
 in a land warrant, to obtain a convejrance of tlie legal title 
 from those wlio liad obtained a patent as upon an assignment 
 of the warrant, the assignment being no longer a necessary 
 part of the title, the same degree of proof of its loss will not 
 be required as if it were relied upon as a part of the title. 
 lUd. 
 
 20. In such case, where there is a strong degree of proba- 
 bility that the assignment has been lost or destroyed, its non- 
 production ought not to operate against him claiming under it 
 so as to defeat his title. Ihid. 
 
 21. Where it was testified that a subscribing witness to an 
 instrument enlisted on board a privateer, and had not been 
 heard of for four years, this was held sufficient to let in se- 
 condary evidence of his hand-writing. Spring v. South Car- 
 olina Ins. Co., 6 Wheat. 268. 
 
 22. Where a receipt for the purchase money of land is more 
 than 30 years old, and not only free from suspicion, but sup- 
 ported by other testimony, the subscribing witness thereto may 
 be dispensed with in proving it. Vattier v. Hinde, 7 Pet. 
 252. ' 
 
 23. The subscribing witness to a bond being dead, proof of 
 his hand-writing, if unaided and unopposed, is sufficient to 
 establish the bond. Murdoch v. Hunter, 1 Brock C. C. R. 
 135. 
 
 24. Though parol testimony is, in general, inadmissible, both 
 at law and equity, to vary a written instrument, yet, in equity, 
 parol evidence is admissible, to prove fraud, or mistaie, or sur- 
 prise in a written agreement. But the evidence must be strong 
 and clear. Hunt v. Sousmanier, 8 Wheat. 174. 
 
 25. Where there is a doubt as to the existence of a trust, 
 the burden of proof lies on the party who alleges it. Prevost 
 v. Gratz, 6 Wheat. 481. Gratz v. Prevost, 6 Wheat. 481. 
 
 26. Where an account current is sent by a foreign merchant 
 to a merchant in this country, between whom there are mu- 
 tual dealings, and he keeps it two years without making any 
 objections, it will be deemed an account stated, and his si- 
 lence and acquiescence will so far bind him as to throw upon 
 him the burden of proof. Freeland v. Heron, 7 Cranch, 147. 
 
 27. It is a rule, both at law and in equity, that the allegata 
 and probata must correspond, and however just the demand 
 proved by the complainant in equity, if his proof does not 
 harmonize with the allegations in his bill, he cannot recover. 
 
AC. SOT 
 
 Clements v. Kellogg, 1 Ala. U. S., 330. Piatt v. Vattier, 9 
 Pet. 405. Lindsay v. Etheridge, 1 Dev. & Bat. Ch., 36. 
 
 28. It is a general rule, that a long acquiescence in letters 
 containing accounts, is prima facie evidence of the correctness 
 of their contents. Hopkirle v. Page, 2 Brock. C. C. E., p. 
 20. 
 
 INJUNCTION. 
 
 1. The proper condition of an injunction bond is, " to an- 
 swer all damages which the defendant may sustain in conse- 
 quence of the injunction being granted." Bern v. Heath, 12 
 How. 168. 
 
 ISSUE OUT OP CHANCERY. 
 
 1. When an issue is directed by a court of Chancery, to be 
 tried by a court of law, and in the course of the trial at law 
 questions are raised and bills of exception taken, these ques- 
 tions must be brought to the notice and decision of the court 
 of chancery, which sends the issue ; and if this is not done the 
 objection cannot be taken in an appellate court of chancery. — 
 Brockett et als. v. Brockett et als., 3 How. 691. See also 
 McLaughlin v. Bank of Potomac, 7 How. 220. 
 
 MASTERS IN CHANCERY. 
 
 1. A complex and intricate account is an unfit subject for 
 examination in court, and ought always to be referred to a 
 commissioner, to be examined by him and reported, in order 
 to a final decree ; to such report the parties may take exceptions, 
 and thus bring any question they may think proper before the 
 court. Dubourg de St. Golomhe r. United States, 7 Pet. 
 625. 
 
 2. On the reference of an account to a master for statement, 
 he should admit the oath of a party to prove only such items 
 as from their nature are not susceptible of full proof. Harding 
 V. Handy, 11 Wheat. 103. 
 
 3. Where a matter is referred to a master for an_ account, 
 he may examine the witnesses viva voce, tbe parties being 
 present by their counsel and neither objecting. Story y. Liv- 
 ingston, 13 Pet. 359. 
 
 4. The report of a master is received as true, where no ex- 
 ception is taken ; and the exceptions are to be regarded so far 
 
^08 MULTIFAEIOUSNESS-^tARTIBS. 
 
 only as they are supported by the special statements of the 
 master, or by evidence which ought to be brought before the 
 court by a reference to the particular testimony on which the 
 exceptor relies. Harding y. Handy, 11 Wheat. 103. 
 
 5. Exceptions to a master's report must state article by ar- 
 ticle, those parts of the report which are intended to be ex- 
 cepted to ; the exceptions to a report are in the nature of a 
 special demurrer, and the party objecting must point out the 
 error, otherwise the part not excepted to will be taken as ad- 
 mitted. Story V. Livingston, 13 Pet. 359. 
 
 6. If the chancery court below refers matters of account to 
 a master, his report cannot be objected to in the appellate 
 court, unless exceptions to it have been filed in the court, be- 
 low in the manner pointed out by the 73rd rule of Supreme 
 Court. Brockett et ah. v. Broclcett et ah., 3 How. 691. 
 
 MTJLTIFAaiOUSNESS. 
 
 See title "Bills." 
 
 1. The objection of multifariousness can be taken by a 
 party to the bill only by demurrer or plea or answer, and can- 
 not be taken for the first time at the hearing of the cause ; 
 but the court itself may take the objection at any time. 
 Oliver V. Piatt, 3 How. 333; and the objection can only be 
 taken advantage of by demurrer or exception to the pleading 
 and must be made hefore answer, and can be tested only by 
 the structure of the bill itself. Nehon v. Hill, 5 How. 127, 
 132. 
 
 PARTIES. 
 
 1. All persons materially interested in the subject of the 
 suit ought to be made parties, either as plaintiffs or defend- 
 ants, in order to prevent a multiplicity of suits, and that there 
 may be a complete and final decree between all parties inter- 
 ested ; but this rule is subject to many exceptions, and is more 
 or less within the discretion of the court, and ought to be re- 
 stricted to parties whose interests are involved in the issue, 
 and to be affected by the decree ; and the relief granted will 
 always be so modified as not to affect the interests of others. 
 Mechanics' Bank v. Seton, 1 Pet. 299. Story v. Living- 
 ston, 13 Pet. 359. 
 
 2. Where a decree in relation to the subject matter of liti- 
 gation can be made without a person having his interest in 
 
PAETIES. 809 
 
 any way concluded by the decree, he is not an essential party. 
 Story V. Livingston, 13 Pet. 359. 
 
 3. One of the great principles upon which courts of equity 
 generally require all parties,' who are known and within reach 
 of its jurisdiction, to be made parties^ is to prevent future 
 litigation, and take away multiplicity of suits. Mandeville v. 
 Riggs, 2 Pet. 482. , 
 
 4. No one need be made a party complainant in whom there 
 exists no interest, and no one party defendant from whom no- 
 thing is demanded. Kerr v. Watts, 6 Wheat. 550. , 
 
 5. On account of the limited and peculiar jurisdiction of 
 the United States courts, if an equity cause may be proceeded 
 in to a final decree between the parties to it, without making 
 others parties, who would generally be considered necessary 
 parties, they need not be made parties where the process 
 of the court cannot reach them, or they be citizens of an- 
 other State. Mallow v. Einde, 12 Wheat. 193. 
 
 6. But if a final decree between the litigating parties will 
 necessarily affect the rights of those who are absent, the pecu- 
 liarity of the jurisdiction of the court will not authorize the 
 dispensing with them. Ihid. 
 
 7. Though it seems that the court might, in case of an in- 
 junction bill, retain jurisdiction of the parties regularly before 
 it, until the plaintifi"s could have opportunity to contest the 
 claims of the other parties in a competent tribunal ; and, if 
 it is then made to appear, by the judgment of such tribunal, 
 that the complainants are entitled to the interest claimed by 
 such other parties, the court may proceed to a final decree. — 
 lUd. 
 
 8. On a bill, by an executor against a devisee of land, 
 charged with the payment of debts, for an account of the trust 
 fund, the creditors are not indispensable parties to the suit. 
 Potter V. Gardner, 12 Wheat. 498. 
 
 9. The Supreme Court of the United States will not make 
 a final decree upon the merits of a case, unless all parties who 
 are essentially interested are made parties to the suit, although 
 some of those persons are not within the jurisdiction of the 
 court. Russell v. Clarh, 7 Cranch, 69. 
 
 10. The want of proper parties is not sufficient ground for 
 dismissing a bill. Milligan v. Milledge, 8 Cranch, 220. 
 
 11. The want of proper parties is not a good plea, if the bill 
 suggests that such parties are out of the jurisdiction of the 
 court. Ihid. 
 
810 PLEAS. 
 
 12. A bill may be dismissed, where the pjaintiif, when 
 called upon to make proper parties, refuses or is guilty of un- 
 reasonable delay in doing so ; but not without demurrer, plea, 
 or answer, pointing out the person or persons which the de- 
 fendant insists ought to be made parties. Greenleaf v. Queen, 
 1 Pet. 138. 
 
 13. Objection to the want of a party complainant, where it 
 does ijot appear on the face of the bill, must be taken advan- 
 tage of by plea and answer. The objection of misjoinder of 
 compla,inants must be made by demurrer or on answer. It is 
 too late to make such formal objection for the first time at the 
 hearing. Btory v. Livingston, 18 Pet. 359. 
 
 14. Where the objection, for want of proper parties, is not 
 taken till the hearing on appeal; it ought not to prevail ex- 
 cept in very strong cases, and where the court perceives that 
 a necessary and indispensable party is wanting. Mechanics' 
 Banh V. Seton, 1 Pet. 299. 
 
 15. In a bill against an unincorporated banking company, 
 the members of which are numerous, and in part unknown, 
 it is not necessary to bring all the stockholders before the 
 court, before a decree can be made, MandeviUe v. Riggs, 2 
 Pet. 482. 
 
 16. The United States, proceeding as an unpreferred cred- 
 itor against the debtor of their debtor in a bill in equity for 
 an account, &c. should make their original debtor a party to 
 the bill, and have the account taken between him and his 
 debtor. United States v. Howland, 4 Wheat. 108. 
 
 17. One endorser of a promissory note, against whom a bill 
 in equity is brought, has a right to insist that the other en- 
 dorsers be made parties. Riddle v. MandeviUe, 5 Cranch, 
 322. 
 
 PLEAS. 
 
 1. A mere denial of facts is proper for an answer, but not 
 for a plea. Milligan v. Milledge, 3 Cranch, 220. 
 
 2. A plea in bar to a bill in chancery denying only part of 
 the material facts stated in the bill, is not good ; a mere denial 
 of facts is proper for an answer but not for a plea. Milligan 
 V. Milledge, 3 Cranch, 220. 
 
 3. An account stated is a good plea in bar to a bill in 
 equity, except where palpable errors in the account, and such 
 as cannot be misunderstood, are shown by the complainant, 
 Ohappedelaine v, Dechenaux, 4 Cranch, 306, 
 
KSPLICATION — StPPLEMBUTAL BILL. 811 
 
 4. On a bill by Rhode Island against Massachusetts, foi* 
 the settlement of the boundary line between those States, the 
 defendant State filed a plea setting forth agreements of com-» 
 promise in respect to the line, entered into between the States 
 in 1710 and 1718, and averring possession and sovereignty ex- 
 ercised by her over the territory in dispute ever afterwards, 
 according to the terms of the agreements. Held, — that the 
 plea was bad for multifariousness, in that it relied upon the 
 agreement as a compromise of the dispute, and, as a distinct 
 matter of defence, the exercise of possession and sovereignty 
 cfver the disputed territory as giving them a right by prescrip-' 
 tion. Rhode Island v. Massachusetts, 14 Pet. 210. 
 
 REPLICATION. 
 
 1. The replication puts the matter of .the plea in issue, and 
 it is incumbent on the defendants to suppprt it. Stead V; 
 Course, 4 Cranch, 403. 
 
 2. A bill set out a title to land in A.-, the wife of B., by 
 direct descent from her brother, and claimed under this title ; 
 the ansfl'er alleged a conveyance of this title, before the insti- 
 tution of the suit to C; the replication admitted the convey- 
 ance to C, but alleged that it was in trust to convey the same 
 to B., to hold the same for the benefit of A. and her children, 
 which trust C. had executed. The deed of C. was recorded, 
 but did not disclose the alleged trusts. Held, — that this was 
 a departure from the statements which the rules of chan- 
 cery would not admit, and that the plaintiffs should have ap- 
 plied for leave to amend their bill. Vattier v. Hinde, 7 Pet, 
 252. 
 
 3. A replication to a plea is always an admission of the 
 sufficiency of the plea itself, as much so as if it had been set 
 down for argument and allowed; and if the facts relied on' by 
 the plea are proved, a dismission of the bill on the hearing is 
 a matter of course. Hughes Vi Blake, 6 Wheat. 453. See 
 also Poultney v. Gity of Lafayette,'?) How. 81. 
 
 SUPPLEMENTAL BILL. 
 
 1. Where relief is sought on the ground of an agreement 
 between the parties pendente lite, it must be presented by sup- 
 plemental bill. Hohson v. McArthur, 16 Pet. 195. 
 
 2. A supplemental bill is filed on leave and for matter hap- 
 pening after the filing of the bill and is designed to supply 
 some defect in the structure of the original bill. Kennedy v. 
 Georgia Slate Bank, 8 How. 586. 
 
IV. 
 
 JFbrms of original bills, informations, cross bills, bills of 
 interpleader, &c. 
 
 [In the following forms, the small figures, thus: ('), (2), &(S,, are in- 
 tended to mark the several parts of the bill, agreeably to the division 
 mentioned in proeeding volume, section 25. (i) denotes the address ; (*) 
 the names of plaintiffs ; (s) the stating part ; (*) the charge of confede- 
 racy, Ac. In several forms, many of these parts do not occur; in these 
 cases, the omission may be readily seen by the failure to insert the 
 jQgures.] 
 
 OSlBriilRAI. FORMTJIA OF BIt.IiS. 
 
 COMMENCEMENT OF BILLS (a), EMBEACING (^) " ADDEESS" 
 AND (^) "NAMES OF PLAINTIFFS." 
 
 In the United States Circuit Courti. 
 
 (*) " To the Judges of the Circuit Court of the United 
 
 States for the District of " :^ f ) A.^ B. (b) of -, and 
 
 a citizen of the State of , brings this his bill against C. 
 
 D. of , and a citizen of the State of ■ , and E. P. of 
 
 , and a citizen of the State of ; and thereupon 
 
 your orator complains and says that," &c. 
 
 (o) See Book I. chap. II, sections 27-32. 
 
 (5) If by a married woman, or infant, suing by a next friend, then add: 
 " a feme covert, who 'sues by J. L. her next friend," or "an infant under 
 the age of twenty-one years, who sues by J; L. his next friend." If com- 
 mittee of a lunatic or convict sue, add — "a committee duly appointed of 
 the person and estate of E- P. a lunatic," or " committee of the estate of E. 
 F, a convict." 
 
 In case of Creditor's bill, see note 2? to p. 16, ante. 
 
fORMtLA OF BlLLSi 313 
 
 In Virginia State Courts. 
 
 To a Circuit Court — as folltfws : 
 (') To the honorable J. B. C. Judge of the Circuit Court 
 
 of the County of : (^) Humbly complaining, sheweth 
 
 unto your honor your orator, A. B. (c) , of , a mer- 
 chant (d), that, &c. 
 
 To a County or Corporation Court — as follows : 
 (') " To the worshipful Justices of the Hustings Court of 
 
 the City of ," (or, " To the worshipful Justices of the 
 
 County Court of County") : (f) Humbly complaining, 
 
 sheweth unto your worships your orator, &c. (as before.) 
 
 Q) STATEMENT IN BILLS. 
 
 See sections 34-41, in precedirig volume. 
 
 [No formula of statement in bills can be made. The form of statement 
 in eaoh ease must depend upon the facts, and every material averment 
 necessary to support plaintiff's right to relief asked, should be made. See 
 subsequent forms of bills, in which statements in particular cases are 
 given ; also, forms of statements in Special cases, poat.'l 
 
 4 
 (*) CHARGE OP CONFEDEEACY. 
 
 See sections 42-3, in preceding volume. 
 
 (5) CHARGING PART. 
 
 See sections 44-46, in preceding volume.* 
 
 (c) See note (i) above. 
 
 (rf) Better state occupation and residence — though this practice is quite 
 rare in Virginia. It may be questioned whether, if these be omitted, a 
 demurrer or a plea in abatement would not hold. 
 
 \_* A late English author, Mr. Whitworth, who has written a work on 
 Equity Precedents, gives the following among other forms under this 
 head, which, if deemed proper, may be used : 
 
 ''Your orator charges that the said [ ] had been and was for some 
 time previous to and up to and at the date of the execution of the said 
 Indenture addicted to the habit of drinking, and in consequence thereof 
 was liable to be imposed upon, and that the said defendant took advan~ 
 tage of such weakness and infirmity of the said [ ] to obtain from 
 him the execution of the said indenture. 
 
 " The said defendant pretends that the said lease is valid at law, and 
 that he ought to have the benefit thereof; whereas your orator charges 
 the contrary, and that at the time of the execution of the said lease by 
 
 27 
 
314 roFtMULA or bills. 
 
 («) AVERMENT OF JURISDICTION- 
 
 See sections 47-50, in preceding volume. ' 
 
 the said [ ], he w'as of such weak intellect, ns to be unable to under- 
 stand the effect of the said lease, or to manage his own affairs ; and that^ 
 by reason thereof the said lease ought to be declared void, and be deliv- 
 ered up to jour orator. * 
 
 "Your orator charges that the said defendants have defrauded your 
 orator in respect of the matters aforesaid, and that the said defendants' 
 said security ought to be declared void as against your ofator ; lor your 
 orator charges that the said defendants represented to your orator that 
 tiie said herfdiBaments, at the time when the said [ } applied to your 
 orator for the aforesaid loan, were free and unincumbered, and on the 
 faith of such representation your orator granted to the said [ ] the 
 fiaid loai^ on the security of thd said hereditaments, but the same heiedit^ 
 amynts were in fact at the time such representations were made subject to 
 the said defendants' security, although the same was not known to your 
 orator. 
 
 "Your orator charges that the said defendant admitted your orator's 
 claim to be valid as against him, and ihftt there was then due to your 
 orator from him in respect thereof in a letter bearing date, Ac, and sent 
 by him to and received by your orator* 
 
 "Your orator charges that your orator is entitled to the said lands and 
 premises as aforesaid; which the said defendant will sometimes admit; 
 but then ho pretends that your orator is barred by a decree made in rela- 
 tion to the same matters by this honorable Court; whereas your orator 
 charges tbe contrary, and that if any such decree was ever made, the 
 same was obtained by fraud, and in particular that the same was madef 
 without due notice to your orator, and that the same questions were noC 
 thereby raised as are raised in this suit. 
 
 "The said deiendant pretends that there is riot anything due tn your 
 orator in respect of the matters aforesaid; whereas your orator chwrgea 
 the contrary to be true; and at other times the said defendant pretends 
 that if anything is due to your orator that the said defendant has been 
 released by your orator therefrom, and froQi every claim io respect thcreol; 
 whereas your orator charges the contrary to be true, and that if any sucH 
 release was executed by your orator, such release ought not to be binding 
 frn your orator in equity, inasmuch as th-e said defendant was and is a 
 trustee for your orator in respect of the matters afuresaid, and no jusC 
 account thereof has ever been rendered by him to your orator, including 
 
 the account of the dividends ol the said sum of £- so received by the 
 
 said defendant as aforesaid, nor has the said defendant ever paid to you? 
 orator any part of such last-meutioncd dividends, 
 
 "Tour orator charg'es that, although the faid [ ], claims to bo inte- 
 
 rested in the matters aforesaid, as one of the legatees under the said will, 
 yet he declines to join your orator as co-plaintilV in this suit. 
 
 ''Your orator charges that the said [ ] is now resident at [ ], 
 
 out of the jurisdiction of this honorable Court. 
 
 " But then the said defendant pretends that he is not accountable in 
 Equity, in respect of the matters aforesaid ; whereas your orators charge 
 the contrary, and tbe more especially as your orators charge that they 
 have no means of having, eacept by a discovery frotn the said defendant, 
 
ii'OaMULA OF BILLS. 315 
 
 (') INTERROGATING PART. 
 
 See sections 51—55, in preceding volume. 
 Ill United States Circuit Courts — as follows : 
 
 (7) To the end, therefore, &o. (as in prp.oeding volume, 
 section 53.) (c) 
 
 In Virginia State Courts — ras follows : 
 
 C) To the end, therefore, that justice may be done, your 
 orator prays that the said C. D. and E. P. be made parties 
 defendant to this bill, and required on their several and re- 
 speotive corporate oaths, according to the best and utmost of 
 their several and respective knowledge, remembrance, inform- 
 ation and belief, a full, true, direct and perfect answer to make 
 to all and singular thennatters aforesaid, and that as fully as 
 if the same were here repeated and they particularly interro- 
 gated thereto; (if desirable to probe the consciences of de- 
 fendants yet farther, add : " and more especially th"at the said 
 defendants may in manner aforesaid, answer and set forth, 
 whether," &c., putting such questions as may be deemed ad- 
 visable.) 
 
 [Forms of interrogatories may be seea in forms of bills hereafter given. 
 See a.lso forms of interrogatories in special cases, poet.l 
 
 (fj PRAYER FOR RELIEF. 
 
 See sections 56-58, of preceding volume. 
 
 In United States Circuit Courts — pray for special relief 
 desired — then add prayer for general relief, as found in sec- 
 tion 57 of preceding volume. 
 
 In Virginia, State Courts — prayer for special relief may 
 be omitted, but it is generally better to insert it. Add prayer 
 for general relief, as above. 
 
 [Forms of prayer for relief may bo seen in the forms of bills hereafter 
 given. See also forms of prayer for special relief, pnet.^ 
 
 the particulars of the sales effected by the said defendant Ithe auctioneer,'] 
 or which of thera remain unsold, or what sums of money have been 
 received by him from the sales thereof: all which particulars your orator.", 
 charge the said defendant ought to set forth." 
 
 (e) Since the adoption of XCIII. Rule of the Supreme Court U. S., this 
 form of interrogatory in the United States Circuit Courts seems unneces- 
 sary ; but ft is better to use this foru). whenever practicable. 
 
816 I'ORMULA OF BILLS. 
 
 (') PRAYEE FOR PROCESS. 
 
 See sections 59-60, of preceding volume. 
 In United States Circuit Courts — as follows : 
 
 " May it please the honorable cou^-t to grant a writ of sub- 
 poena, directed to the Marshal of the District of , and 
 
 commanding the said to appear and make answer unto 
 
 this bill of complaint, and to perform and abide by such 
 orders and decrees herein as to the Court may seem required 
 by the principles of equity and good conscience." 
 In Virginia State Courts — as follows : 
 
 " That proper process may be directed against the several 
 defendants herein before named" ; or " that proper process 
 may be directed against the several defendants herein before 
 named, [and that your orator may have all such farther and 
 other and general relief as the nature of his ease may re- 
 quire, or to equity may seem meet."] 
 
 The foregoing are forms of the nine parts of the bill a.s 
 laid down in the books. The following may be added : 
 
 (*") CONCLUSION. 
 
 See sections 61, 62, in preceding volume. 
 
 In United States Circuit Courts — "And your orator will 
 ever pray," &c. A. A. M., p. q. 
 
 " The defendant C. D. is required to answer the interroga- 
 tories numbered respectively 1, 3 and 5 ; the defendant E. F. 
 to answer those numbered respectively 1, 2, 4 and 6." (/) 
 
 In Virginia State Courts-^-" And your orator will ever 
 pray, &o. A. A. M., p. q." 
 
 (") AFFIDAVITS. 
 
 See section 62, in preceding volume. 
 
 Affidavits are necessary in bills requiring the restraining 
 order of the Court, as in the case of injunction ; also to bills 
 of discovery in certain cases, bills of interpleader, &c,((7.) 
 
 (/) Since the adoption of XCIII. Rule by Supreme Court U. S., this 
 form seems unnecessary. It is better, howeTer, to use it whenever prac- 
 ticable. 
 
 (3) In the State of New York, all bills are required to be sworn to, ex- 
 cept in cases in which plaintiff expressly waive? his right to an answer on 
 oath from the defendant. 
 
i^ftilMULA 6s BILLS. 317 
 
 The following are forms of affidavits aniieifed to bills in 
 Such cases : 
 
 To a bill for injunction-, writ of ne exeat, and the like : 
 
 Corporation (or, County) of . This day personally 
 
 appeared before me, a notary public, (or justice of the peace, 
 or commissioner of the court,) or [any other person author- 
 ized to administer such oath,] in the County aforesaid, A. B., 
 plaintiff in annexed bill, and made oath that the statements 
 made in the said bill, so far as made of his own knowledge, 
 are true, and so far as made upon knowledge or information 
 derived from others, he believes them to be true. Given 
 uiider my hand, this day of . 
 
 To a bill of interpleader : (See section 425, of preceding 
 Volume.) Corporation (or, County) of, (&c., as before) — made 
 bath that the statements in the foregoing bill, so far as made 
 of his own knowledge, are true, and so far as made upon 
 knowledge or information derived from others, he believes 
 them to be true ; and further made oath that there is no col- 
 lusion between him and any one or more of the defendants in 
 said bill or any other party thereto. Given uiider my hand, 
 this day of . 
 
 To a bill to perpetuate testimony/: (See section 432 of 
 preceding volume.) Corporation (or, County) of, (&c., as be- 
 fore) — "made oath that the statements made in the foregoing 
 bill, so far as made of his own knowledge, are true, and so 
 far as made upon knowledge or information derived from 
 others, he believes them to be true. Given under my hand, 
 this day of ." 
 
 [If the circumstances by which the evidence intended to be 
 perpetuated is in danger of being lost are not stated in the 
 bill, it will be necessary in the affidavit to set forth particu- 
 larly such circumstances.] 
 
 To a bill of diicovery : [When a bill seekS discovery of 
 deeds or writings, by the English practice the plaintiflF is 
 required to annex an affidavit to the bill that they are not in 
 his custody or power, and that he knows not where they are, 
 uilless they are in the hands of the defendant ; and it is sup- 
 posed this is the proper practice in the United States Circuit 
 Coiirts and in the Virginia State Courts. If stating part of 
 bill contain allegations to th'e effect "that such deeds or 
 writings are not in plaintiff's custody or po*er, and that he 
 knows not where they are, unless thdy are in the hands of the 
 defendant," an ordinary affidavit like that to a bill for iiijunc- 
 
318 roKJiuLA OF Sills. 
 
 tion supra, is thought to he sufficient. If such statemeht he not 
 made in the hill, then the affidavit should he as follows : "Cor- 
 poration (or County) of," [&o., as hefore] — " made oath that 
 the statements in the foregoing hill, so far as made upon his 
 own knowledge, are true, and that the said statements, so far 
 as made upon knowledge or information derived from others, 
 he believes them to be true ; and further made oath that 
 (here describe deeds or writings) are material to the protec- 
 tion of his rights, and that the same are not in his custody or 
 power, and that the said plaintiff knows not where the said 
 deeds (or, writings) are, unless they are in the hands of the 
 defendant. Given under my hand, this day of ."] 
 
 To a cross bill: [A cross hill should be sworn to, when the 
 plaintiff desires an order to stay proceedings in original suit. 
 See form of affidavit to a bill for injunction, and follow that 
 form.] 
 
 To a hill of revieio : [See section 463-472 of preceding 
 volume.] The following is the form of affidavit : " Corpora- 
 tion (or, County) of," [&c., as before] — "made oath that the 
 statements made in the foregoing bill, so far as made upon 
 liis own knowledge, are true, and so far as made upon knowl- 
 edge or information derived from others, he believes them to 
 be true; and furthter made oath, that the evidence mentioned 
 in the said bill, to-wit : (here describe it,) was discovered by 
 him since the rendition, of the decree complained of in the 
 said hill, and that the said evidence was not and could not 
 have been used at the time said decree was rendered, because 
 
 he, the said ^, was at that time ignorant of the fact 
 
 that such evidence was in existence and could be procured. 
 Given under my hand, this -~ day of ." 
 
 GENERAL FORMULA OP INFORMATION. 
 
 Commencement — including address and names of parties. 
 
 C) To, &c. (as in address to bill,) (^) Informing, sheweth 
 to the Court J. K., Attorney General of the State of Vir- 
 ginia, that, &o. (a) (The remainder of the information is 
 framed like a bill.) 
 
 (o) It will be observed thnt this formula is applicable to the Virginia 
 State Courts. Upon a minute examination of the records of United 
 States Circuit Court held in this city, no case has been found in which 
 the United States begin their proceedings by information. They uni- 
 
FORMULA OF BILLS. 
 
 319 
 
 GEIvERAL FORMULA OF INFORMATION AND BILL COMBINED. 
 
 Commencement — indudlvg address and names of parties. 
 
 Q) To, &c., (as in address to bill.) (f) Informing, shewetli 
 to tiie Court J. R., Attorney General of the State of Vir- 
 ginia, and your orator A. B. humbly complains and says that, 
 <&c. (following form of bill to conclusion) (U). 
 
 FORMS OW BIL.L.S IM SPKCIAI. CASKS. 
 
 Bill in United States Cireuit Courts fur the foreclosure of a 
 inort(jage. (c) 
 
 (') To the Judges of Circuit Court of the United States, 
 for the District of : 
 
 (f) A. B. of , and a citizen of the State of , 
 
 brings this his bill against C. D. of ^-, and a citizen of 
 
 the State of — , and thereupon your orator complains 
 
 and says — (*) that the said C. D. being seised to him and his 
 heirs in fee simple, or otherwise well entitled to certain land 
 
 lying in -— county, in this State, applied to yotir orator 
 
 to advance and lend him the sum of $ , upon the security 
 
 of the said land ; and your orator thereupon agreed to do so, 
 and did accordingly lend the said C. D. the said sum of mo- 
 ney, -and the said C. D. in accordance with his agreement, 
 executed a deed of mortgage conveying the said land as 
 therein recited — which deed is herewith filed as an exhibit 
 with this bill, marked X, and prayed to be taken as part 
 thereof; that at the time limited and appointed by the said 
 deed of mortgage for the re-payment of the 'said sum of 
 
 money, with interest thereon, to-wit : on the day of 
 
 , the said C. D. failed to pay the same or any part 
 
 thereof to your orator, and that the said sum, as well as all 
 interest accruing thereon, is yet due and unpaid; and your 
 orator is advised that by the failure on the part of the said C. 
 D. to make such payment, the said land, with all its privi- 
 leges and appurtenances of every kind, became vested in your 
 
 formly institute a suit in equity by bill. This also seems to be the prac- 
 tice in the United States Courts in other circuits. No sufBoient reason 
 for this course has occurred to the "writer. 
 
 (J) See note (a) to preceding form; also section 04 in preceding tol- 
 ume, and note to that section, (c) See section 40 of this work. 
 
32Ci 
 
 rOKMS OF BILLS IN SPECIAL CASES. 
 
 orator. (^) (a) In tender consideration -whereof, and foras- 
 much as your orator is remediless in the premises by the 
 strict rules of common law, and cannot have adequate relief 
 except in a court of equity, where matters of this kind are 
 properly, cognizable and relievable.(i) (') To the end, there- 
 fore, that the said defendant (c) may, if he can, shew why 
 your orator should not have the relief hereby prayed, and 
 may, upon his corporate oath, and according to the best and 
 utmost of his knowledge, remembrance, information and be- 
 lief, full, true, direct and perfect answer make to such of the 
 several interrogatories herein after numbered and set forth, as 
 by the note here under written, he is required to answer — 
 that is to say : 
 
 1. Whether, &c. (here insert interrogatory.) 
 
 2. Whether, &c. 
 
 3. Whether, &c.(d) 
 
 Q) And that it may be referred to one of the masters of 
 this honorahle court, to take an account of what is due your 
 orator for principal and interest on his said moHgage secU' 
 rity from the said defendant,{e) and that the said defendant 
 may be decreed to pay to your orator what shall be found due 
 on such account, by a short day, to be appointed by this hon- 
 orable court in that behalf, together with your orator's costs; 
 and in default, that the said C. D. and all persons claiming 
 under him, may be forever barred and foreclosed of and from 
 all right of redemption of, in, and to the said mortgaged 
 premises, or any part thereof; and may deliver up to yonr 
 orator all deeds, papers or writings, in his custody or power, 
 relating to or concerning the said mortgaged prem.ises.(^f) 
 And that your orator may have all such farther and other and 
 general relief in the premises as the nature of his case may 
 require, or to equity shall seem meet. 
 
 (a) (<) The charge of confederacy, and (5) the charging part, are omit- 
 ted. See sec. 43 and 46, ante, (i) See sec. 47, 48 and 49, ante, (c) Where 
 there are more than one defendant, see sec. 53, ante, for form of this 
 clause. 
 
 (d) See, however, XCIII. Rule of Supreme Court U. S. This clause, 
 in this form, does not seem necessary, but it is better to insert it whenever 
 practicable. 
 
 (e) The words in italics are, of course, unnecessary when the amount 
 may be ascertained by a simple calculation by the Court, or at the bar — 
 though they will not prejudice the plaintiff in any case. 
 
 (/) The words in italics will do no harm, and there arc cases in which 
 they are eminently proper. 
 
FORMS OP BILLS IN SPECIAL CASES. 321 
 
 C) May it please the honorable court to grant a writ of 
 
 subpoena, directed to the Marshal of the District of , 
 
 and commanding the said C. D. to appear and make answer 
 unto this bill of complaint, and to perform and abide by such 
 orders and decrees herein as to the Court may seem required 
 by the principles of equity and good conscience. 
 
 And your orator will ever pray, &c. 
 
 J. M. P., p. q. 
 
 Memo. The defendant C. D. is required to answer all the 
 interrogatories numbered consecutively, 1, 2, 3, &o. 
 
 Bill of foreclosure in Virginia State Courts. 
 
 (') To the Honorable J. B. C, Judge of the Circuit Court 
 for the County of :* 
 
 (f) Humbly complaining, sheweth unto your honor, your 
 orator, A. B.,"}" (f) that C. D. being seised to him and his 
 heirs in fee simple, or otherwise well entitled to, &c. (^following 
 next preceding form down to C) — then proceed :) (') To the 
 end, therefore, that justice may be done in the premises, your 
 orator prays that the said C. D. may be made a defendant to 
 this bill, and required on his corporate oath and according to 
 the best and utmost of his knowledge, information and belief, 
 to make full, true, direct and perfect answer to the statements 
 of this bill, as fully and completely as if the same were here 
 repeated and he thereto specially interrogated ; (f) that the 
 said defendant may be decreed to pay your orator the said 
 sum of money, with interest thereon,J by a short day to be 
 appointed by this honorable court, and that in default of such 
 payment, the said C. D. and all persons claiming under him, 
 may be forever barred and foreclosed of and from all right of 
 redemption of, in, and to the said mortgaged premises, or any 
 part thereof; that proper process may be directed against the 
 said defendant, § and that your orator may have all such far- 
 
 * This is the form of address in Circuit Courts. See sec. 29, ante, for 
 form when suit is instituted in County Court; and notice that the County 
 Courts are all addressed by the title of "worshipful justices" or "wor- 
 ships." These terms should, therefore, be used wherever the words "your 
 honor" are found in this form. 
 
 f It is better, always, to insert the residence and occupation of the 
 plaintiff. 
 
 J If account be complicated, it would be proper to pray specially for an 
 account, as in next preceding form, using the word " commissioners," in- 
 stead of "masters." 
 
 ? The reader will observe that the prayer for process is much abbre- 
 via'ted in this form, and interpolated in the prayer for relief. See sep. 
 60, antt. 
 
822 FORMS OF BILLS IN SPECIAL CASES. 
 
 ther and other and general relief in the premises as the na- 
 ture of his case may require, or to equity shall seem meet. 
 And your orator will ever pray, &c. 
 
 W. G., p. q. 
 
 Bill for specific performance of agreement by vendor against 
 vendee. 
 
 (*) To, &c. (See several forms of address in general formula.) 
 
 (°) Humbly complaining, sliewetli unto the Court your 
 
 orator, E.. 0. (") That your orator now is, and for some time 
 
 before the year was seised of, or entitled to, a good fee 
 
 simple estate in and to certain land lying in the county of 
 
 • •; and your orator being so seised or entitled, and 
 
 being desirous to sell the same, did contract with one J. ¥., 
 
 some time in the year , for the sale of the said land to 
 
 him ; at which time the said J. F. did agree to purchase the 
 said land of your orator, at the price of , and an agree- 
 ment in writing was entered up between your orator and the 
 said J. ¥., and was duly signed by your orator and the said 
 J. F. — which agreement is herewith filed, marked A. and 
 prayed to be taken as part of this bill. That by this agree- 
 ment, as will appear on reference thereto, the said J. F. con- 
 tracted to pay your orator the cash instalment of the said pur- 
 chase money, (the same having been split up in three pay- 
 ments : one cash, the second in sis months, and the third in 
 twelve months from the time of sale,) so soon as a proper 
 deed was executed by your orator, conveying the said land to 
 the said J. F., if your orator could then assure him of a good 
 title in the said land : And your orator further sheweth, that 
 
 in performance of the said agreement, he did, on the 
 
 day of ■, execute a good and sufficient deed of convey- 
 ance, conveying the said land to the said J. F., and tendered 
 the same to him the said J. F., and that at that time, as now, 
 your orator was possessed of a good fee simple title to the 
 land thereby intended to be conveyed : That the said J. F. 
 refused then to comply with the said contract on his part, by 
 refusing to pay your orator the cash instalment as aforesajc}, 
 and executing negotiable notes for the remainder, payable at 
 the times specified in said agreement; and that the said J. F. 
 still refuses to comply with the said contract, though he has 
 been several times applied to by your orator and his agent to 
 comply with the same. All which actings and doings are con- 
 trary to equity and good conscience, (°) In tender considcra. 
 
FORMS OF BILLS IN SPECIAL CASES. 323 
 
 tioU whereof, and forasmuch as your orator is remediless in 
 the premises, save hy the aid of a court of equity, where mat' 
 ters of this kind are alone and properly cognizable, your m-a- 
 tor prays (') that the said J. F. may be made a party defend- 
 ant to this bill, and required to answer the same on oath, as 
 fully and particularly as if the allegations herein were here 
 again repeated, and he thereto specially interrogated, (*) that 
 the said agreement, entered into between your orator and the 
 said J. F. may be specifically performed and carried into execu- 
 tion by the said J. P.— your orator hereby offering to perform 
 the same on his part; and that the said J. P. may be compelled 
 to pay your orator the amount of purchase money of said land, 
 with interest on the several instalments thereon from the 
 several periods when the said purchase mon»;y would have 
 been payable, had the said J. P. not failed to comply with his 
 contract, your orator offering herein to convey by a good and 
 sufficient deed of conveyance the said land to the said J. P. ; 
 [that proper process may issue,] and that your orator may have 
 such other further and general relief as the nature of his case 
 may require, or to equity shall seem meet. And your orator 
 will ever pray, &c. 
 
 J. A. M., p. q. 
 
 [N'ote. — Foregoing form, drawn for Virginia State Circuit Courts, may 
 be readily adapted to a bill in flie Itnited States Circuit Courts, or in 
 other Courts of Virginia.] 
 
 JiiU Jjy simple contract crrditors, ar/alnst administrators, 
 and ill case personal estate iiisiijficicnt, to have assets 
 marslialled. 
 
 (*) To, &c. (as in general formula.) 
 
 (f) Humbly complaining, shew unto the court, your orators, 
 A. B. of, &c., and G. D. of, &o., on behalf of themselves, and 
 all others the simple contract creditors of p]. P., late of, &c., 
 deceased, who shall come in and contribute to the expense of 
 this suit, Q) that the said E. P. departed this life on or about, 
 &c., and was in his life-time, and, at the time of his death, 
 justly and truly indebted unto plaintiff A. B. in the principal 
 
 sum of $ , with an arrear of interest thereon, upon and 
 
 by virtue of his the said E. P\'s promissory note of hand in 
 writing, bearing date, &c., for the securing the payment of 
 the said sum of %^ — , to said plaintiff, with interest for the 
 same, at and after the rate, of 6 per cent, per annum, as by 
 said promissory note, &e. will appear. 
 
824 I'OllMS OF BILLS IN SPECIAL CASES. 
 
 That tte said E. F. in his life-time, and at the time of his 
 death, was also justly and truly indebted unto plaintiff C. D. 
 in the sum of $ and upwards, for goods sold and de- 
 livered, and moneys paid, laid out and expended, to and for 
 his the said E. F.'s use. 
 
 That the said E. F. was in his life-time, and at the time of 
 his death, possessed of a very considerable personal estate 
 more than to have satisfied, and paid all his just debts and 
 funeral expenses; and also was entitled and seised of consid- 
 erable real estate and particularly of divers lands in the 
 county of . 
 
 That the said P]. F. being so seised and possessed, departed 
 this life at or about, &c., intestate, and without issue, leaving 
 a widow S. F., and a brother R. F., who are entitled to such 
 of his estate as may remain after the payment of all debts, 
 expenses of administration, &c.; that due administration of 
 
 the estate of the said E. F. was duly granted by the 
 
 court of to the said S. F. 
 
 That under and by virtue of her administration, she the 
 said S. F. hath become possessed of the whole or the greater 
 part of the said intestate's personal estate and effects, and that 
 his real estate has ever since been in possession of the said 
 S. F. and R. F., and the rents and profits thereof have been 
 received by them for their own use. 
 
 That dollars have been paid unto your orator, A. B., 
 
 in pallet discharge of his said debt, but that the remainder 
 thereof together with arrears of interest on the whole is yet 
 justly due and owing unto him; and that the whole of your 
 orator's, C. D.'s debt is yet due. 
 
 That the said S. F. having possessed the said E. F.'s per- 
 sonal estate and effects as aforesaid, has been applied to by 
 your orators to pay and satisfy them, their said demand by and 
 out of such personal estate and effects as had come to her 
 hands, and that she the said S. F. and the said R. F. were 
 also applied unto by your orators, and your orators requested 
 them if the said intestate's personal estate and effects were 
 not sufficient by reason of application thereof, or any part 
 thereof to the payment of any specialty creditors of the said 
 intestate to satisfy other creditors not of that class, that they 
 the said S. F. and R. F. would consent that the deficiency 
 thereof might be raised by sale of a competent part of the 
 said intestate's real estate, or that the said intestate's real and 
 personal assets might be marshalled, and his personal estate 
 and effects applied in payment of his simple contract debts 
 
FORMS OF BILLS IN SPECIAL CASES. 325 
 
 and his speciality debts paid out of his real estate. ' [* And 
 plaintiff well hoped, &c. (*) But now, &c.] All which act^ 
 ings and doings on the pirt of the said S. P. and R. F. iLt6 
 contrary to equity and good conscience, and tend to the raani- 
 fest wrong and injury of your orators in the premises. (°) In 
 tender consideration whereof, and forasmuch as your orators 
 are remediless in the premises, save by the aid of a court of 
 equity, where matters of this nature are properly cognizable 
 and relievable. (i) To the end therefore that justice ilay bfe 
 done in the premises, your orator prays that the said SI Fj 
 in her own right, and as administratrix of the estate of the 
 said E. F. deo'd, and that the said E. F. may be made parties 
 defendants to this bill, and required on their several and re- 
 spective corporate oaths to answer the same (as in general 
 formula.) 
 
 (f) That an account may be taken, by and under the decree 
 of this honorable court, of the said debt so due to your orators 
 as aforesaid, and of all other debts which were owing by the 
 said testator at the time of his death, and which still remain 
 unpaid. And that an account may also be taken of the said 
 testator's personal estate and effects received by or for the use 
 of the said S. F. as such administratrix as aforesaid; and that 
 the personal estate and effects of the said E. F. may be ap- 
 plied in payment of his said debts in a due course of adminis- 
 tration : And that so much thereof as shall remain, after pay- 
 ment of the said E. F.'s debts by specialty, may be applied in 
 or towards the payment of the said debt so due to your orators 
 as aforesaid, and the debts of all other unsatisfied creditors 
 of the said E. F., by simple contract, who shall come in and 
 contribute to the expense of this suit, in proportion to their 
 respective demands ; and in case it shall appear, that- the 
 whole, or any part of the said E. F.'s personal estate has 
 been exhausted, or applied in or towards the payment of his 
 specialty debts, and that the residue thereof is not sufficient 
 to answer the debts of your orators, and the said E. F.'s 
 other debts on simple contract ; then that it may be declared 
 that your orators and the other creditors by simple contract of 
 the said testator, ought to stand in the place of the said 
 testator's creditors by specialty, who have had, or shall have 
 
 * See General formula preceding. It will be observed that in above 
 form a part of the charging part is preserved. Pretences and cliarges 
 may here be inserted, forms of which may be found in note to general 
 formula, page 313. 
 
 28 
 
326 FORMS OF BILLS IN SPECIAL CASES. 
 
 a satisfaction for their debts out of the said personal estate , 
 and may have satisfaction oilt of the said real estate for so 
 much of their respective debts as his personal estate shall be 
 deficient to answer, by reason of the same having been ex- 
 hausted or applied in or towards the payment of his debts by 
 specialty; and that the same may bo decreed accordingly; 
 and that the said real estates may be sold or mortgaged for 
 that purpose ; and that all proper parties may be dacreed to 
 join in such sale or mortgage, and that the money to arise 
 from such sale or mortgage may be paid to your orators, and 
 the said other creditors by simple contract accordingly. 
 And that your orators arid the said other unsatisfied creditors 
 by simple contract of the said E. F. may have such further 
 a,iid other relief in the premises as to the court may seem 
 meet, and the circumstances of this case require, (s) May it 
 please the court (as in general formula to the end.) 
 
 G. M., p. q.* 
 
 Bill hy a landlord against lessee for years, loJio had ploughed 
 up lands contrary to the terms of his lease, and had 
 suffered the farm to continue'out of repair, with prayers for 
 special relief and for injunction. 
 
 (f) To, &e. (as in general formula.) 
 
 (f) Humbly complaining, sheweth unto the court, your 
 
 orator, A. B., — , of —^ — - ; (f) that your orator being 
 
 seised in fee simple of or otherwise well entitled unto certain 
 land and premises lying and being, &c., (here describe the 
 land and premises,) by an agreement in writing, bearing date 
 
 on the day of ; and made between your orator of 
 
 the one part, and C. D. of the other part, did demise, lease 
 and to farm let the said land and premises unto the said 
 
 C. D., from the day of , for the term of 
 
 years, thence next ensuing, at the yearly rent of $ — — paya- 
 ble quarterly, as in said agreement of writing mentioned, and 
 under and subject to the covenants, stipulations and agree- 
 ments therein contained, on the part of the said CD., his ex- 
 ecutors, administrators and assigns, to be observed and per- 
 
 * This form is now of little utility in Virginia. In those States of 
 the Union which have not by express statutes placed specialty and simple 
 contract creditors on the same footing, this bill will be of serrice. 
 
 If suit be instituted in United States Courts, refer to general formula 
 and adapt this form to these courts. 
 
FOEMS OF BILLS IN SPECIAL CASES. 327 
 
 formed ; in wtich said agreement, there is a covenant on tlie 
 part of the said C. D., that he the said C. D., his executors, 
 administrators and assigns, should and would, &c., [stating 
 briefly the covenant to keep premises in repair, and to cul- 
 tivate land properly, &o.,] as by the said agreement will ap- 
 pear, which agreement in writing is herewith filed, marked A., 
 and prayed to be taken as a part of this bill. And your 
 orator further sheweth, that the said C. D. took possession of 
 all the said demised premises, and that the same were then in 
 good repair and condition, but have since become very ruinous 
 and bad, and the said lands become very much deteriorated 
 from the wilful mismanagement and improper cultivation 
 thereof by or on the part of the said C. D., and that he has 
 
 ploughed up certain fields called containing acres, 
 
 contrary to the terms of his said lease or agreement in writing, 
 and has otherwise committed great spoil, waste and destruc- 
 tion. And your orator further sheweth, that he hath fre- 
 quently by himself and his agents applied to the said C. D., 
 and requested him to put the said land and premises, and all 
 the buildings, fences, gates and stiles thereon into good repair, 
 and to keep the same in good and sufficient repair during the 
 remainder of the said term, and to make satisfaction to your 
 orator for all the damage done to the said estate by his mis- 
 management or neglect in the management thereof, accord- 
 ing to the terms of the said ftgreement in writing, and course 
 of husbandry practised in the neighbouring country; and your 
 orator hath also, in like manner, requested him not to plough 
 up any other of the said lands demised to him as aforesaid, 
 which he is not at liberty to plough according to the terms of 
 the said lease. [*And your orator well hoped, &c. (*) But 
 
 * See general formula preceding. Pretences and charges may here be' 
 inserted as follows: "The said C. D. absolutely refuses so to do ; and he 
 at times pretends that the said messuage or tenement and all the out- 
 houses and out-buildings thereunto belonging and all the bii;iilii ■ a 
 fences, gates and stiles on the said lands have been constantly duiin^ his 
 possession thereof and now are in good repair and condition, and that he 
 hath never ploughed up any part of the said demised lands which he was 
 not at liberty to plough by the terms of the said lease, and the course of 
 husbandry used and approved ia the neighborhood thereof, and that he 
 hath never in any manner neglected the manuring or taking care of any 
 part thereof, but that he hath constantly used and employed cultivated 
 and manured all such lands in a proper regular and careful manner ac- 
 cording to the terms of the said lease and a good course cf husbandry 
 used and practised in the neighbouring country, and that all the said de- 
 mised premises are in as good plight and condition in all respects as the 
 sa-me were when he entered thereon. Whereas your orator charges the 
 
328 FOEMS OF BILLS IN SPECIAL CASES. 
 
 now, &c,] All wiich actings and doings on the part of the 
 said C. D. are contrary to equity and good conscience and 
 tend to the manifest wrong and injury of yonr orator in the 
 premises. (^) In tender consideration whereof and forasmuch 
 as your orator is remediless in the premises, save by the aid of a 
 court of equity, where matters of this nature are properly cog- 
 nizable and relievable. (J) To the end therefore that justice be 
 done, your orator prays that the said C. D. be made a defend- 
 ant hereto, that the said C. D. [and his confederates when 
 discovered] may upon his [thtir several and respective] cor- 
 poral oath to the best and utmost of his [their several and re- 
 spective] knowledge, remembrance, information and belief, 
 full, true, direct and perfect answer make to all and singular 
 the matters aforesaid, and that as fully and particularly, as if 
 the same were here repeated, and he [or they and every of 
 them,] distinctly interrogated thereto.f (^) And your orator 
 further prays that the said defendant may be compelled by 
 the decree of this court to put the said land and premises into 
 good and sufficient repair, and to make satisfaction to your 
 orator for all waste done, committed, permitted or suffered by 
 him on the said land and premises, and all damage done by 
 him^ or occasioned thereto by his mismanagement or neglect ; 
 and that the said defendant may be decreed to keep the said 
 farm, lands and premises in good and sufficient repair and con- 
 dition during the continuance of his interest therein, and to 
 manage and cultivate the said land in a proper and husband- 
 like manner according to the terms of the said lease and the 
 
 centrary of all such pretences to be the- truth. And your orator farther 
 charges, that ttte said farm and premises are now, from the neglect and 
 gross mismanagement of the said defendant, "worth to be sold the snm 
 
 of $ • less than the' same -were worth to be sold when the said C. D. 
 
 first took possession thereof, and that it would cost the sum of $ and 
 
 upwards to put the same into as good plight and condition as the same 
 were in at the time of the date of the said indenture of lease. And your 
 orator farther charges that the said C. D. ought to put the said demised 
 messuage, &c., and premises into good repair and condition, and to make 
 a reasonable compensation to your orator for the "waste and damage done 
 or arisen thereto. And your orator charges that the said defendant 
 threatens and intends to plough up the other or remaining pasture fields 
 called part of the said demised premises, and that he ought to be re- 
 strained therefrom, and from committing any further or other waste, spoil 
 or destruction in, upon or to the said farm lands and premises or any part 
 thereof." 
 
 [f If particular interrogatories, add " And more especially; in manner 
 aforesaid, to answer and set forth, whether, &e , io.," propounding inter- 
 rogatories.] 
 
FORMS bV BILLS IN SPECIAL CASES. 329 
 
 custom of the country; and that the said defendant, Ms 
 agents and all others may be injoined and restrained by the 
 
 injunction of this court from ploughing up the said 
 
 acres forming part of the said demised premises, and from 
 committing or permitting any further or other waste or spoil 
 on or to the said demised premises or any part thereof, and 
 that all proper directions may be given for effectuating the 
 purposes aforesaid; that a writ of injunction may be issued, 
 and that such other, further and general relief may be afforded 
 your orator as the nature of his case may require, or to equity 
 shall seem meet. (») May it please the court to grant, &c., (as 
 in general formula.) And your orator will ever pray, &c. 
 
 G. M. 
 [Add affidavit to this bill. See form on p. 317, ante.'] 
 
 Form of hill hy next of kui for account. 
 
 (*) To, &c. (as in general formula.) 
 
 (") Humbly complaining shew unto the court, your orator 
 
 and oratrices, S. M. of , CM. of , 
 
 and A. L. , of — , (0 that A. M., late of 
 
 was in his life-time and at the time of his death possessed of 
 and well entitled to a considerable personal estate consisting 
 of, &c., (here describe it.) And your orator and oratrices 
 
 further shew that the said A. M. sometime about the of 
 
 the year . departed this life intestate and without issue, 
 
 leaving F. M. his wife, one of the defendants herein after 
 named, and your orator his brother, and your oratrices his 
 sisters, and only next of kin him surviving. And your orator 
 and oratrices further shew, that since the death of the said in- 
 testate, the said F. M. his wife obtained from the 
 
 court of letters of administration of the goods, chat- 
 tels and estate of the said intestate, and hath by virtue thereof 
 possessed herself of the personal estate and effects of the said 
 intestate to a large amount and value,' and much more than 
 sufficient to pay and satisfy his just debts and funeral ex- 
 penses. And your orator and oratrices further shew, that* 
 
 *Tho folio-wing may be inserted here : "Though years have expired 
 
 since the death of the said A. M., and though by the laws of this State, it 
 was the duty of the said F. M. as administratrix of the estate of the said 
 A. M. deo'd, to settle her administration aoconnt before proper commis- 
 sioners, yet she has failed to do so, and that yoiir orator and oratrices be- 
 ing, &e., (following text.) 
 
330 FORMS OP BILtS IN SPECIAL CASilg. 
 
 being entitled as the brother and sisters of the said intestate 
 to a distributive share of his personal estate, your orators and 
 oratrices have frequently applied in person or by their agents 
 to the said F. M., and requested her to come to a full and 
 true account with your orator and oratrices for the personal 
 estate and effects of the said intestate, and to pay them re- 
 spectively, their share of the residue of such personal estate 
 remaining after paying all the just debts and funeral expenses 
 of the said A. M., deceased, with which reasonable and just 
 requests your orator and oratrices hoped the said F. M. would 
 have complied. (*) But now so it is that the said P. M. re- 
 fuses to comply with such requests [*and pretends, &e.] All 
 which actings and doings are contrary to equity and good con- 
 science and tend to the manifest wrong and injury of your or- 
 ators and oratrices. (") In tender consideration whereof and 
 forasmuch as your orator and oratrices can only have adequate 
 relief in the premises in a court of equity, where matters of 
 this nature are properly cognizable and relievable. (') To the 
 end therefore that justice may be done in the premises, your 
 orator and oratrices pray that the said F. M. in her own right 
 and as administratrix of the estate of the said A. M. de- 
 ceased, may be made a party defendant to this bill, and 
 may upon her corporal oath to the best and utmost of her 
 knowledge, remembrance, information and belief, full, true, 
 direct and perfect answer make to all and singular the 
 matters aforesaid, and that as fully and particularly as if the 
 same were here repeated, and she distinctly interrogated 
 thereto ;f (^) that an account may be taken by and under the 
 direction of this court of the personal estate and effects of the 
 said intestate A. M. possessed by or come to the hands of the 
 said defendant F. M. his widow and administratrix, or to the 
 
 *Tliia may be omitted, but if it bo thought better to insert pretences 
 and charges, then the following may be inserted : " Pretends that the per- 
 sonal estate and eiFects of the said A. M. were small and inconsiderable 
 and not more than sufficient^to pay and satisfy his debts and funeral ex- 
 penses and that she hath applied all such personal estate and effects in a 
 due course of administration. Whereas your orator and oratrices charge 
 the contrary thereof to be the truth, and so it would appear if the said 
 defendant would set forth as she ought to do, a full and true account of 
 all and every the personal estate and effects of the said intestate "which 
 have been possessed or received by the said defendant or by her order or 
 to her use, and of her application thereof." 
 
 ■j" If special interrogatories, add: "And more especially in manner 
 aforesaid, to answer and set forth, whether, Ac, Ac," (propounding inter- 
 rogiitories.) 
 
FORMS OF BILLS IN SPECIAL CASES. 331 
 
 hands of any other person or persons by her order or for her 
 use ; and also an account of the said intestate's debts and 
 funeral expenses, and that the said intestate's personal estate 
 may be applied in due course of administration ; and that the 
 clear residue thereof may be ascertained ; and that your or- 
 ators and oratrices respectively may be paid their respective 
 shares of such clear residue, and that such other, further and 
 general relief be aflForded your orator and oratrices as the na- 
 ture of their case may require or to equity shall seem meet. 
 (") May it please, &c., (as in general formula ) And your 
 orator and oratrices will ever pray, &c. 
 
 G. M., p. q. 
 
 Bill of injunction to injoin the creation of a nuisance.* 
 
 To the Honorable Creed Taylor, Chancellor of the Rich- 
 mond and Lynchburg Districts : 
 
 Your prator, Thomas Miller, of Powhatan county, humbly 
 complaineth to your Honor that some time in the year 1813, 
 as your orator believes, G-. L. Mosby, deceased, and B. True- 
 heart erected a water grist mill on a small branch of Deep 
 Creek, in the neighborhood of your orator's dwelling — the 
 mill-pond (which covered from 10 to 12 acres of land, as was 
 supposed,) being distant from your orator's residence only 
 1925 yards, and in a direction south of west 37 J degrees, as 
 appears by a map herewith presented, marked A. Your ora- 
 tor and his family had always enjoyed usual health, being by 
 no means particularly liable to bilious fever, or ague and 
 fever, during the many years they resided where they now do, 
 previously to the erection of the mill aforesaid ; but in the 
 year 1815, your orator and his family became eztremely 
 afflicted by the above diseases, and continued to be more or 
 less so every summer and fall, as long as the aforesaid pond 
 remained. Such were the afflictions of himself and family, 
 arising mainly, if not wholly, as your orator believes, from 
 the deleterious effects of the before named mill-pond, that 
 having taken the best legal advice on the subject, he deter- 
 
 * This bill is a copy of the bill exhibited in the former Court of Chan- 
 cery, at Richmond, Virginia, in the suit of Miller v. Trueheart, a report 
 of which, on an appeal from the decree of the Chancellor, may be found 
 in 4 Leigh, 569. Though not drawn in accordance with the formula laid 
 down in the books, this bill is here inserted as a specimen of legal draft- 
 ing in the Virginia State Courts, and as containing all the essentials .in a 
 bill in these Courts, for the purpose of injoining the creation of a nuisance. 
 
332 FORMS OF BILLS IN SPECIAL CASES. 
 
 mined to commence a suit for damages against the owners of 
 the mill on account of the nuisance, thinking thereby to get 
 rid of it altogether. Accordingly, in April, 1823, a suit was 
 instituted against B. Trueheart, half owner of the mill, and 
 Benjamin Mosby and Merit Booker, testamentary guardians 
 of Benjamin Mosby, Jr., De Witt Mosby, and John Wade 
 Mosby, infant children of G. L. Blosby, deceased, and to whom 
 he had bequeathed his half of the aforesaid mill. On the 
 11th of April, 1824, pending the suit aforesaid, the mill-dam 
 was carried off by a violent rain, and the pond drained. 
 Much of the weed, &c. from the pond was swept down the 
 stream into your orator's low-grounds, south of his house, 
 and yet, nevertheless, during the summer of 1824, or fall, 
 there was not a single case of bilious fever, or ague and fever, 
 as your orator verily believes, on his plantation, although the 
 number of people thereon was upwards of fifty. All these 
 facts were fully proved upon the trial of the cause, (the result 
 of which will appear by reference to the paper marked B. 
 herewith,) by indisputable testimony, a part of which may be 
 seen by examining the affidavits accompanying this bill, and 
 which your orator prays may be taken as part thereof, marked 
 from D. to N. inclusive. Dr. A. Crump, who was examined 
 in chief, stated that he was your orator's family physician, 
 and had been from July, 1819 ; that he had never known so 
 much disease, of the bilious, intermittent and remittent char- 
 acter, in any family of the number, as had prevailed in your 
 orator's during that period; that he had particularly exam- 
 ined the mill-pond, along with Dr. Ko. Henderson, (whose 
 affidavit is filed herewith,) and your orator's meadow and low- 
 grounds, (which it was attempted to make the scape-goat on 
 the trial,) and that he believes the extraordinary sickness of 
 the above-described kind in your orator's family, was pro- 
 duced by the mill-pond of Trueheart & Co.,; that in 1824, 
 from the spring till that time, (12th of October, or there- 
 abouts,) there had been no disease of the sort on your orator's 
 plantation, within his knowledge : and that not many days 
 before the giving of his evidence, he had examined all your 
 orator's family, (black and white,) and saw no symptoms of 
 any such disease. It appears from the paper marked B., be- 
 fore alluded to, that the jury, (after a full investigation of 6 
 or 7 days, and after two repeated declarations on the part of 
 your orator, through his counsel, that money was not his 
 object — that he only wished to be indemnified for his actual 
 expenditures, and to get rid of the destructive and afflicting 
 
FORMS OF BILLS IN SPECIAL CASES. 
 
 838 
 
 nuisance,) gave a verdict in four hundred dollars damages, 
 and costs. After this decisive expression of opinion, your 
 orator did hope that, inasmuch as the mill-dam was down, the 
 race, fore bay, &o. much out of repair, no damages exacted 
 from the orphans, (not even legal costs,) and the mill when in 
 repair of no great importance, he would never again be sub- 
 jected to the like afilictions, or any approaching thereto. In 
 this fond hope your orator is about to be disappointed, except 
 he can prevent the mischief by the just and benevolent inter- 
 position of a Court of Chancery. Your orator has been in- 
 formed, and does verily believe, that the aforesaid B. True- 
 heart, (whether with or without the consent of Benjamin 
 Mosby and Merit Booker, guardians as aforesaid, he does not 
 know,) (but he prays that all may be made defendants to this 
 bill,) intends in a few days to put up the aforesaid mill-dam, 
 again create the nuisance so destructive to your orator and the 
 neighborhood, though it may be less deleterious than for- 
 merly, as most of the dead timber has been cleared off the 
 land. The said B. Trueheart is a very wealthy man, and is 
 able to collect force enough to erect the dam in a very short 
 time; and therefore your orator has been advised to make 
 this application in time do prevent llim, and as it is much 
 easier to prevent erection than to pull down afterwards. 
 
 Your orator further states, that agreeably to our laws," 
 (vide E. Code, 2 vol., page 227, sec. 6,) when a mill-dam or 
 nlill is destroyed or rendered unfit for public use at any time, 
 unless the owner or occupier thereof begin to rebuild or repair 
 thQ same within one year, &c., he shall forfeit his right to 
 rebuild, without a new writ of ad quod dammim, &o. Now, 
 your orator does not believe that the defendant did bona fide 
 begin to rebuild or repair his mill or dam within one year 
 after it was unfit for use. It has been before remarked, 
 that the mill-dam was carried away on the 11th of April, 
 1824, and from that period the mill has been unfit for use. 
 A few days before the expiration of the year, viz. on the 8th 
 of April, as your orator has been informed, of this present 
 year, 1825, defendant B. Trueheart, without, (also,) as your 
 orator believes, the consent, privity or concurrence of one of 
 .the guardians of the joint owners, caused a small portion of 
 dirt to be removed from a part of the old dam into the breach, 
 the amount of which will appear by the affidavits of Wm. 
 McLaurine and Wm. P. Tatum, who saw it a few days after, 
 and which are herewith transmitted and marked X. and Y. 
 and prayed to be made a part of this bill. This the defendant 
 
334 FOEMS OF BILLS IN SPECIAL CASES. 
 
 Trueheart construes into a beginning, being all that has been 
 made, as your orator verily believes ; and, indeed, if any other 
 and a real hona fide beginning had been made by getting 
 timber, rock, &c., where would have been the necessity of 
 such a shift or evasion as this ? If the law means any thing, 
 it cannot be eluded by such a pretext. In consideration of 
 the premises, your orator being remediless, except in a Court 
 of Chancery, prays an injunction to restrain the defendants 
 from rebuilding their dam : First, upon the ground that a 
 Court of Equity ought to interpose in the case of a nuisance, 
 where the law would not afford an immediate nor an adequate 
 remedy until irreparable injury might be done; see Hall's 
 Digest, Index, page 352, sec. 9 ; which your orator believes to 
 be the case in the present instance ; for what can compensate 
 him and his family for injuries like those he has sustained, 
 and who knows but they may be immediate and irreparable, 
 before he can get through another suit at law ? 2dly. Upon 
 the ground that the defendant did not, in a hona fide manner, 
 with the consent and knowledge of the joint tenants, begin 
 to rebuild or repair their dam within one year from the time 
 that the mill became unfit for use. Your orator, saving and 
 reserving,- &e., prayis thai jo-ur Honor - would grant an injunc- 
 tion restraining the said Trueheart, Benjamin Mosby and 
 Merit Booker, guardians as aforesaid, them or either of them, 
 or their agents, or the agents of either, from rebuilding or re- 
 pairing the mill-dam aforesaid, until they answer the premises, 
 and shew cause why they should not be restrained. And 
 your orator, as in duty bound, will ever pray, &c. 
 
 TH. MILLER, Powhatan. 
 May IQth, 1825. 
 
 Affidavit 
 
 Powhatan County, to-wit : This 20th day of May, 1825, 
 Thomas Miller personally appeared before me, a Justice of 
 the Peace for the County aforesaid, and made oath that all 
 tl^e allegations in the foregoing bill, stated as coming within 
 his own knowledge, he knows to be true, and all others resting 
 upon the knowledge or information of others, he believes to 
 be true. Given under my hand, this 20th day of May, 1825. 
 
 JNO. H. STEGER. 
 
 Aioard of ivjunction. 
 At Mrs. Hunter's, 23d May, 1825. 
 
 The injunction, as prayed for, is awarded until the further 
 order of the Court. CREED TAYLOR. 
 
 Mr, Henino, Clerk of the Court at Richmond. 
 
e). 
 
 Lula. 
 
 FORMS OF BILLS IN SPECIAL CASES. 335 
 
 A hill for partition. (See Code of Virginia, cli. 124, sec- 
 tions 1 — 5.)* 
 
 (f) To, &c. (as in general formula.) 
 
 *) Humbly complaining, shewetli, &c. (as in general for- 
 '•) 
 
 (f) That your orator's father, T. B., was in his life-time 
 seised and possessed of certain real estate lying in the county 
 
 of —— , (here describe it,) and being sa thereof seised and 
 
 possessed, some time in the year departed this life intes- 
 tate, leaving your orator and C, H. and J. his only children 
 and heirs at law. That the said H. and J. are infants, under 
 the age of twenty-one years. 
 
 And your orator further states, that the said real estate is, 
 as he believes, susceptible of partition amongst the parties 
 entitled thereto ; but if it be not, then your orator desires the 
 same to be sold and the proceeds distributed amongst the par- 
 ties, in proportion to their respective interests therein. 
 
 (f) In tender consideration whereof, and forasmuch as your 
 orator is remediless in the premises, save by the aid of a Court 
 of Equity, where matters of the kind are alone and properly 
 cognizable, your orator prays that the said C, H. and J. be 
 made parties defendant to this bill, (') and required on their 
 corporal oaths to answer the s^ie, according to the best of 
 their knowledge, remembrances, information and belief, as 
 fully and particularly as if the statements of this bill were 
 here again repeated and the said defendants thereto specially 
 interrogated ; that a proper guardian ad litem be assigned the 
 infant defendants, to defend their interests in this suitj 
 (f) that the said real estate be divided between the parties 
 aforementioned, entitled thereto, and your orator's portion 
 thereof allotted to him ; and in case the said real estate be 
 indivisible in kind, that the same be exposed to sale, and the 
 proceeds, thereof be distributed among the parties entitled 
 thereto ; *that proper process may issue ; and that such other, 
 further and general relief may be afforded your orator as the 
 nature of his case may require or to equity shall seem meet. 
 And your orator wiU ever pray, &c. 
 
 G. M., p. q. 
 
 "* This form may be readily adapted to other cases in whioh partition is 
 sought. It will be observed, that in this form the prayer of process is 
 interjected in the prayer for relief. 
 
836 FORMS OF BILLS IN SPECIAL CASES. 
 
 Bill for an injunction to preveMt the infringement of copy- 
 rights. 
 
 (*) To, &c. (as in general formula of bills.) 
 (^) Complaining, &o. (as in general formula.) 
 (=>) That heretofore, in the year of our Lord eighteen hun- 
 dred and , certain persons, doing business under the 
 
 name, style and firm of C., H. and Company, namely, W. 
 H., T. H. _G. and C. C. L., all citizens of the said United 
 States, and resident in the said District, published a book, 
 "Adam's Latin Grammar, with some improvements, and 
 the following additions : rules for the right pronunciation of 
 the Latin language^ a metrical key to the odes of Horace ; a 
 list of Latin authors, arranged according to the ages of Koman 
 literature; tables showing the value of the various coins, 
 weights and measures used among the Romans; by Benjamin 
 A. Gould, master of the Public Latin School of Boston ;" 
 being a new edition of a foreign publication, which edition 
 was prepared by the said Benjamin A. Gould, who then was, 
 and still is, a citizen of, and resident in the said United 
 States, and who, at the time of preparing the same, agi'eed in 
 writing, upon sufficient consideration, that said C., H. and 
 Company should be the exclusive proprietors of, and take out 
 a copyright in their names for the same. A printed copy of 
 the title of which book, being such new edition, the said firm 
 of C, H. and Company, on the seventh of July, A. D. 18 — -, 
 being then such exclusive proprietors of the same, and solely 
 entitled to a copyright of the same, deposited in the office of 
 the clerk of the District Court of the United States, for the 
 said District of Massachusetts, before the said book had been 
 published, which title was on that day recorded in the said 
 office of the clerk of the said District Court; and the said C, 
 H. and Company caused to be published and inserted in the 
 page immediately following the title-page of the said book, the 
 following words, to-wit : Entered according to act of Congress 
 
 in the year , by C. H. & Co., in the Clerk's office of the 
 
 District Court of Massachusetts; [and within two months 
 from the date of the certificate of such deposit of title, by 
 the clerk of said court, said C, H. and Company caused 
 a copy thereof to be published in a newspaper, printed in 
 Boston, in the said District, for the space of four weeks;*] 
 and, within six months from the publication of the said book, 
 
 * To be used ia case copyright has been renewed. See Story's Laws 
 U. S. continued by Sharswood, Vol. IV., p. 2221. g 3. 
 
FORMS OF BILLS tN SPECIAL CASES. 337 
 
 caused a copy of the same to be delivered to tlie Secretary of 
 State of tte United States, to be preserved in the office of that 
 officer, and took all the measures and steps requisite by law 
 for securing the said copyright ; and the said iirm of C, H. 
 and Company, and their assigns, have had the legal and exclu- 
 sive right of publishing said book, being such new edition, from 
 the time of the date of the said certificate, to the present 
 time, and by and in virtue of the laws of the United States, 
 in force at the time of obtaining said certificate, and publish- 
 ing said book, and passed since its publication, the assigns of 
 the said C, H. and Company, and the assigns of such assigns, 
 have the exclusive right of publishing the said book, for the 
 period of fourteen years from the date of said certificate, 
 which period has not yet expired, and also of renewing and 
 prolonging such copyright for the period of fourteen years, 
 from and after the expiration of the said first period of four' 
 teen years. 
 
 And the plaintiffs further show, that, by assignments in 
 writing for su.fficient consideration, made by the original pro- 
 prietors, and intermediate assignments in writing, by their 
 assigns, and the assigns of their assigns, from time to -time, 
 the assignors, assignees, and proprietors, each and all of them, 
 being residents in, and citizens of the said United States, the 
 plaintiffs, for a valuable consideration, became the sole legal 
 proprietors in their own right, of said copyright, on the sev- 
 enth day of March, in the year of our Lord eighteen hundred 
 and thirty-three, and ever since that time have been, and 
 now are such sole proprietors, and ever since the said seventh 
 of March, have had, and now have the sole exclusive right 
 of printing, publishing, and exposing to sale, and selling 
 copies of the improvements and additions made and originally 
 published in the said edition of the said work, entitled as 
 aforesaid, in which edition the said Benjamin A. Gould, the 
 editor of the same, made the following, among other addi- 
 tions and improvements, namely : he prefix;ed rules for accent 
 and rules for the sound of the vowels, detached from the 
 original text, and omitted all that relates to English gram- 
 mar, as distinguished from the Latin ; marked the quantity 
 of the penultimate vowel, in every Latin word, throughout 
 the book, where it was not determined, by being placed before 
 another vowel, a double consonant, or two single consonants ; 
 made divisions of the text, by introducing new heads in 
 numerous places; divided the paragraphs in numerous in- 
 stances, and distinguished parts, as more important, by print- 
 
 29 
 
338 
 
 FORMS OF BII/LS IK SPECIAL OASESj 
 
 ing them in largef types; in many instances transposed a 
 part of the text of the original work into notes, gave the Eng-> 
 lish of the nouns declined as paradigms, prefixed remarks on 
 gender to the declerision of nouns, arranged the termination of 
 each declension in columns, instead of putting them in trans- 
 verse lines, as in the original work; added an additional 
 termination in the vocative and ablative cases, in the word 
 Anchises ; declined ,the words opus,^ parens, dogma, and 
 arundo, Dido, calcar, setas, and vox, in the third declension, 
 at full length, and'gave the Ehglish in full to the first two j 
 made a distinct head of heterogeneous nouns, and heteroclite 
 nouns, and made remarks under the latter; declined at length 
 the words respublica, jusjuranduin, paterfamilias, Jupiter, 
 bos, Orpheus, (Edipus, Achilleus or Achilles, under the head 
 of heteroclites ; added the noun veprem to the list of defec- 
 tive nouns, under the head of diptola ; gave the English of 
 the adjectives declined as paradigms, &c., &c., &c. ; and 
 made other alterations and improvements in the said original 
 work. 
 
 And the plaintiffs further show, that they being the lawful 
 proprietors of the said copyright, and in possession of the same, 
 having many copies of the said edition of said grammar, with 
 the said additions and improvements, on hand and offered for 
 sale, and alwayf having had on hand, and offered for sale at 
 a reasonable price, a sufficient number of copies of the said 
 grammar, so improved and enlarged, and being in the enjoy- 
 ment of the profits of the same, J. D. R., L. S., both of said 
 Boston, and J. D. M. W., of Roxbury, in the county of Nor- 
 folk, in said District of Massachusetts, booksellers, doing 
 biisiness under the name and style of R., S. and Company, on 
 the fourteenth day of August instant, without the consent 
 and allowance of the plaintiffs, exposed to sale and sold, and 
 at divers times before that time, have exposed to sale and 
 sold divers copies of a work, and still have on hand and offer 
 for sale copies of the same, entitled, Adam's Latin Gram- 
 mar, with numerous additions and improvements, designed 
 to aid the more advanced student, by fuller elucidations of 
 the Latin Classics, by G. D. Cleavcland, A. M., late professor 
 of the Latin Language and Literature, in the University of 
 the City of New York;" which is a copy from the said im- 
 provements and additions in the first mentioned work ; and 
 the printing and selling thereof, and the exposing of the same 
 to sale, are infringements of the said copyright of the plain- 
 tiffs; and the said R., S. and W., at the time of making 
 
FORMS OF BILLS IN SPECIAL CASES. ^ 839 
 
 such sale, and of exposing the said copies of said C.'s edition 
 to sale, knew that the plaintiffs had the popyright aforesaid, 
 and knew the said copies, by them so sold, and exposed to 
 sale, to have been copied from the said work, of which the 
 plaintiffs have a copyright, and knew the printing, exposing 
 to sale and selling the same, without the consent of the plain- 
 tiffs, to be an infringement of such copyright, and knew the 
 said copies by them so sold, and so exposed to sale, to have 
 been printed and published without the consent of the plaintiffs. 
 And the plaintiffs further show, that the said Cleaveland's 
 edition of the said grammar is copied and pirated from the 
 said Gould's, and is an infringement on the plaintiffs' copy- 
 right, in the following among other circumstances and partic- 
 ulars, namely : it adopts the same title ; it adopts the plan of 
 Gould's work, in omitting the whole of the original work, 
 relating to English grammar,- omitting, as the plaintiffs be- 
 lieve, precisely the same passages throughout, particularly, 
 at pages sixteen, eighteen, &c., &c., &c., of said Cleaveland's 
 edition ; it has rules of accent, prefixed to the original gram- 
 mar, after the plan of Gould's edition, some of the rules being 
 substantially taken from Gould's ; it follows Gould's plan by 
 prefixing rules for the sound of the vowels, and copies some 
 of the rules literally, and takes others substantially, as in the 
 eleventh page, &c., &c., &c. ; and in the appendix to the same, 
 to the amount of thirty pages or more, being a very large 
 proportion of the additions, alterations, and improvements, 
 made by the said Gould in his edition of the said work, 
 belonging to the plaintiffs, as aforesaid. And the plaintiffs 
 further show, that in consequence of the defendants having so 
 exposed to sale and sold the said Cleaveland's edition, the 
 sales of the plaintiffs have been hindered and rendered less in 
 number than they would have been, had the said K., S. and 
 Company not so exposed to sale and sold the said pirated 
 edition. All which acts and doings of the said K., S. and 
 Company, are contrary to equity and good conscience, and 
 tend to the manifest wrong and injury of the plaintiffs in 
 the premises ; (^) in consideration whereof, and forasmuch as 
 the plaintiffs are remediless in the premises, at and by the 
 rules of the common law, and cannot have adequate relief, 
 save in a court of equity, where matters of this and the 
 like nature are properly cognizable and yelievable, &c, (') To 
 the end, therefore, &o. (as in general formula.)* (') That the 
 
 * See XLI. 3,nd XCIII. Rnles Supreme Court U. S. If the draftsman 
 does not deem it proper to follow the form presoribedin 41st Rule, he may 
 adopt the following : " That the said R., S. and W. may be made defend- 
 
840 FOKMS OF BILLS IN fiPBCIAL GASES. 
 
 said K., S. and W. may be restraiued by injunction, from 
 selling or esposipg to sale, or causing or being any way con- 
 cerned in tie selling or exposing to ,8ale, or otherwise dis- 
 posing of, any copies of said Cleaveland's edition of the said 
 work, and that they be ordered and decreed to render an ac- 
 count of the copies of the same that they have sold, and to 
 pay over the profits of such sales to the plaintiffs, and that 
 they be ordered to surrender and deliver up to the plaintiffs 
 all the copies of the said Cleaveland's edition they have on 
 hand, and that they be ordered and decreed to pay the plain- 
 tiffs their costs in this suit, and that the plaintiffs may have 
 such further and other relief in the premises, as to this honor- 
 able court may seem meet, and the nature and circumstances 
 of the case may seem to require. 
 
 (f) May it please, &c. (as in general formula.) And your 
 orator will ever pray, &c. Gr. M., p. q. 
 
 (Add affidavit.) 
 
 Bill for divorce a vinculo matrimonii, and injunction.^ 
 
 To the honorable J. B. C, Judge of the Circuit Court for 
 
 the County of Henrico. 
 
 (f) Complaining, sheweth unto the Court, your oratrix A. 
 B. C. wife of A. W., who sues by B. W. D., her next friend; 
 (f) that she is now twenty-eight years old; at the age of 
 fifteen, she left her father's house, (ran off in common lan- 
 guage) with the said A. W., and was married to him, and 
 since that time has been to him a constant, faithful and duti- 
 ful wife, and has borne him five children, to wit : Elizabeth 
 now 12 years old, Andrew 10, Amelia 7, Martha 3 and 
 G-eorge not quite six months old. 
 
 Her husband, on the other hand has been negligent, exces- 
 sively intemperate in drinking ardent spirits, and insufferably 
 abusive and violent to her, frequently beating and choking 
 her, until to protect her person from violence, and preserve 
 her life, she has been compelled to fly from her residence, and 
 seek refuge in the house of her father, P. F. in the City of 
 
 ants to this bill, and required on their corporal oaths, full, true and per- 
 fect answer to make to all the statements of this bill, and may set forth, 
 particularly, how many copies of said Cleaveland's edition of said gram- 
 mar they have sold, and what number they have on baud ; and that they 
 may abide such order and decree as the court shall make in the premises. 
 f This bill ia taken from the records of Circuit Court of Henrico county- 
 Jt cQuti),in3 all material statements, though not strictly foTmal. 
 
FORIVIS OF BILLS IN SPECIAL CASES. 
 
 34l 
 
 , where she now is with only, her two youngest chil- 
 dren with her, being unable to return to her home where the 
 other children are, practically without any protector, as their 
 
 father passes most of his time in the City of ■ -"^ in 
 
 notorious dissipation, leaving his children at his house in 
 
 ^. The only property owned by your oratrix, and her 
 
 husband is, a tract of land in the County of , contain- 
 ing sixty-three acres and a half, which was procured by the 
 joint labor of your oratrix, and her husband after their mar- 
 riage, and settled upon your oratrix, as will appear by the 
 deed, of which a copy is herewith exhibited, marked Aj 
 Your oratrix further shews, that although the said W. treated 
 her with so much brutality and violence, while she was uiider 
 the Same roof with him, and has compelled her to fly from 
 him to avoid, as she has alleged, personal violence, and save 
 her life, upon various occasions, he still pursues her at the 
 residence of her father, infesting the house and using the 
 most violent and threatening language to her. (^) In tender 
 consideration, &c. (') To the end therefore, &c., your ora- 
 trix prays that the said A. W. may be made a defendant to 
 this bill, and required to render a full, true and perfect an- 
 swer to the same upon his corporal oath ; that he may be 
 injoined and restrained from interfering with or in any man- 
 ner molesting her and her children who are with her; that 
 your oratrix may be entirely divorced from him, and the mar- 
 riage be dissolved ; that he may be compelled to deliver up her 
 children to her, and to surrender to her and them for the 
 maintenance of. herself and her children, the tract of land 
 before mentioned; and for such other and further relief as her 
 case requires, and to equity may seem meet, (b) May it 
 please, &c. And your orator will ever pray, &c; 
 
 A. B. C. 
 [Add affidavit.'] 
 
 Award of injunction. 
 An injunction is awarded to injoin and restrain the defend- 
 ant A. W. from removing the infant children, Martha and 
 Borge W., from the control and possession of their mother, 
 B. C, until the further order of the Courti 
 
 J. A. M; 
 
 To the Clerk of, &C: 
 
S42 :PoRMS OF BILLS IN spbciAl CASlds. 
 
 Bill to perpetuate testimony, 
 (f) To, &c. (as in general formula.) 
 
 (f) Humbly complaining, sheweth unto the Court your 
 orator, T. H. of, &c., brother of the half blood and devisee 
 named in the last will and testament of T. R., of &c., de- 
 ceased, (f) That the said T. R. was in his life-time, and at 
 the time of his death, seised or entitled to him and his heirs, 
 of or to divers freehold estates, situate in the several places 
 hereinafter mentioned, and divers other places, of considerable 
 yearly value in the whole, and being so seised or entitled, and 
 being of sound and disposing mind, memory and understand- 
 ing, he made his last will and testament in writing, bearing 
 date, &c., which was duly executed by him, in the presence 
 
 of, and attested by credible persons, whose names are, 
 
 \here insert the names of the subscribing tviinesses'] and which 
 will, with the attestation thereof, is in the words following 
 (that is to say;) [stating the will verbatim.'] And your or- 
 ator further sheweth, that the said T. R. afterwards, and on 
 or 'about departed this life without revoking or alter- 
 ing his said will, or any part thereof, whereupon your orator 
 by virtue of the said will, became entitled in fee-simple to all 
 his said freehold estates, subject as to such part thereof as 
 aforesaid, to the payment of so much of the funeral expenses, 
 debts and legacies of the said T. R. as his personal estate may 
 fall short to pay; and your orator accordingly, soon after the 
 death of the said T. R. entered upon and took possession of 
 all the said estates, and is now in possession and receipt of 
 the rents and profits thereof and in the possession and enjoy- 
 ment thereof. And your orator well hoped that he and his 
 heirs and assigns would have been permitted to enjoy the 
 same quietly without any interruption from any person whom- 
 soever. (*) But now so it is, may it please your honors, that 
 T. H., of, &c., who claims to be cousin and heir at law of the 
 said T. R., alleging that he is the only or eldest son of T. H. 
 and M., his wife, both deceased (which said M. H. as is. also 
 alleged, was the only child of S. R., who as is likewise 
 alleged, was the only brother of the father of the said T. I?* 
 that left any issue) combining and confederating with divers 
 persons unknown to your orator, pretends that the said T. R. 
 did not make such last will and testatment in writing as afore- 
 said, or that he was not of sound and disposing mind and 
 niemory at the making thereof, or that the same was not ex- 
 ecuted in such manner as by law is required for devising real 
 
FORMS OF BILES IN SPECIAL CASES. 343 
 
 estates; and therefore lie insists that your orator hath not any 
 right or title to the real estates late of the said T. R. or any 
 part thereof, hut that on his death the same descended unto 
 him the said T. H., as his heir at law. (^) Whereas your 
 orator charges the contrary of such pretences to he true. But 
 nevertheless the said T. H. refuses to contest the validity of 
 the said will during the life-time of the subscribing witnesses 
 thereto, and he threatens that he will hereafter dispute the 
 .validity of the said will when all the subscribing witnesses 
 thereto are dead, whereby your orator and his heirs and as- 
 signs will be deprived of the benefit of their testimony. All 
 which pretences of the said confederate are contrary to equity 
 and good conscience, and tend to injure and oppress your ora- 
 tor in the premises. (°) In consideration whereof and foras- 
 much as your orator cannot perpetuate the testimony of the 
 subscribing witnesses to the said will, without the assistance 
 of a court of equity. (') To the end, therefore, that the said 
 T. H. may show, if he can, why your orator should not have 
 the testimony of the said witnesses perpetuated. 
 
 (^) And that your orator may he at liberty to examine his 
 witnesses with respect to the execution and attestation of the 
 said will, and sanity of mind of the said T. E. at the making 
 the same, so that their testimony may be perpetuated and pre- 
 served, (s) May it please, &c. And your orator will ever 
 pray, &c. Gr. M., p. q. 
 
 Bill of review. 
 
 (*) To, &c. (as in general formula.) 
 
 (f) Humbly complaining, sheweth unto the Court your 
 orator A. B., of C. in the county of D., Esq., (f) that in 
 term, in the year , W. S. of, &c., (the defend- 
 ant hereinafter named,) exhibited his bill of complaint in this 
 honorable Court against your orator, and thereby set forth, 
 that, &c. [^Here insert the original hill.'] And your orator 
 being served with a SMSpasmo for that purpose, appeared and 
 put in his answer to the said bill, to the effect following : 
 [Sere recite the sxibstance Of the answer^ And the said W. 
 8. replied to the said answer, and issue having been joined, 
 and witnesses examined, and publication duly passed, the said 
 cause was set down to be heard, and was heard before this 
 
 Court, the day of last, when a decree was 
 
 pronounced, which was afterwards passed and entered, in 
 which it was decreed and ordered, [here recite the decree f] 
 
344 FORMS OF BILLS IN SPECIAL CASES. 
 
 whieh said decree your orator humbly insists is erroneous, and 
 ought to he reviewed, reversed, and set aside for many appa- 
 rent errors and imperfections, inasmuch as it appears by your 
 orator's answer, set forth in the body of the said decree, that 
 [-Here insert the apparent errors.'] And no proof being made 
 thereof, no decree ought to have been made or grounded 
 thereon, but said bill ought to have been dismissed for the 
 reasons aforesaid, (s) In consideration whereof, and inasmuch 
 as such errors and imperfections appear in the body of the 
 said decree, and there is no proof on which to ground any 
 decree to set aside the said rent charge, your orator hopes 
 that the said decree will be reversed and set aside, and no 
 further proceedings had thereon. (J) To the end, therefore, 
 that the said W. 8., &c. (*) And that for the reasons, and 
 under the circumstances aforesaid, the said decree may be 
 reviewed, reversed and set aside, and no further proceedings 
 taken thereon, and your orator permitted to remain in the 
 undisturbed possessicjn and enjoyment of the said rent charge. 
 (^) May it please, &c. And your orator will ever pray, &c. 
 
 G. M., p. q. 
 
 Bill hy husband of legatees against an executor for pay- 
 ment of legacy. 
 
 (f) To, &c. (as in general formula.) 
 
 (f) Humbly complaining, sheweth unto the Court, your 
 orator, &c., (f) that W. S. late of , duly made and pub- 
 lished his last will and testament in writing, bearing date on or 
 about the — — and thereby, amongst other bequests, gave to 
 his nephews and nieces, the children of his late sister M. A., 
 the sum of f each, to be paid to them as they should re- 
 spectively attain the age of twenty-one years, and appointed 
 
 E. T. F. of , the defendant hereinafter named, the sole 
 
 executor of his said will, as in and by, &o. And your orator 
 further sheweth unto your honor, that soon after the death 
 of the said testator, the said will was duly admitted to 
 probat in the Court of and the said E. T. 
 
 F. qualified as executor of the saftne in the said Court, and 
 the said E. T. E. hath since possessed himself of the per- 
 sonal estate and eifects of the said testator, to an amount 
 much more than sufficient for the payment of his just debts, 
 funeral expenses and legacies. And your orator, &c., that 
 after the death of the said testator, your orator intermarried 
 with A A., who was the niece of the said testator, and one 
 
FORMS OF BILLS IN SPECIAL CASES. 345 
 
 of the children of the said M. A., the sister of the said 
 testator, in the said will named, and by virtue of such inter- 
 marriage, your orator, in right of his said wife, became en- 
 titled to demand and receive the aforesaid bequest of $ 
 
 And your orator, &o., that your orator's said wife lived to at- 
 tain her age of twenty-one years, and that she hath lately de- 
 parted this life, and that neither your orator nor his said wife 
 received any part of the said legacy ; and your orator sheweth,, 
 that having obtained letters of administration to his said wife, 
 he hath repeatedly applied to the said E. T. F., for payment 
 of the said legacy, and interest thereon, from the time of his 
 said late wife attaining her age of twenty-one years, and your- 
 orator well hoped that such your orator's reasonable requests 
 would have been complied with, as in justice and equity they 
 ought to have been. (*) But now so it is, &c., the said de- 
 fendant refuses so to do, &c. (f) Whereas, &c. (^) In tender 
 consideration, &c. (J) To the end, therefore, &c., (as in gen- 
 eral formula.) 
 
 (f) And that an account may be taken of what is due and 
 owing to your orator for the principal and interest of the said 
 legacy, and that the said defendant may be decreed to pay the 
 same to your orator; and if the said defendant shall Bot 
 admit assets of the said testator sufficient to answer the same, 
 then that an account may be taken of the estate and effects of 
 the said testator which have been possessed or received by the 
 said defendant, or by any other person by his order or to his 
 use, and that the same njay be applied in a due course of ad- 
 ministration. And that your orator may have all such other 
 and further and general relief in the premises, as the nature 
 of his case may require, or to equity shall seem meet. (") 
 May it please, &o., (as in, general formula.) And your orator 
 will ever pray, &c. 
 
 J. L. 
 
 Bill of interpleadei'. 
 
 (^) To the, &o., (as in general formula of bills.) 
 
 (f) Humbly complaining, sheweth unto the court, your or- 
 ator J. R. of the city of Eichmond, merchant, (a,) (f) that, 
 on or about the 26th day of June, 1821, your orator pur- 
 chased of D. S., a defendant hereafter named, a certain 
 
 {a\ If in United States Courts, see Gener(il Formula of EiHa. 
 
246 FORMS OP BILLS IN SPECIAL CASES. 
 
 quantity of coal, then being on board a vessel called the 
 James, amounting to cbajdrons, for which your ora- 
 tor agreed to pay the said D. 8., the sum of $1125, and to 
 give his .promissory note for such amount, payable in thirty 
 days from the said 26th day of June. That such coal was 
 delivered to your orator, and he paid on account of such con- 
 sideration money $100. 
 
 And your orator further shows, that sometime afterwards, 
 
 and about the ' day of — 1821, F. and S. Scher- 
 
 merhorn, of the city of -, merchants, caused an attach- 
 ment to be sued out against one William Williams, as an 
 absent debtor, and that afterwards, L P. and D. B., caused 
 another attachment to be sued out against the said W. W., as 
 an absooii 'ing debtor; that warrants were issued in the usual 
 form to W. B., the sheriff of the county of New York, who 
 gave notice t > your orator, not to pay over to any person ex- 
 cept him the s.dd sheriff, any property or money, of or belong- 
 ing to the said W. W.; and further, that the said W. B., the 
 sheriff aforesaid, and G. D., the attorney of the said F. and S. 
 Schermerhorn, and the said F. and B., apprised your orator, 
 that the coal so purchased by your orator as aforesaid, of the 
 said D. S., was the property of the said W. W., for whom the 
 said D. S. was only an agent or factor, and insisting and giv- 
 ing notice to your orator, that he would be held liable if he 
 paid the residue of such moneys, or any part thereof, to the 
 said D. S. 
 
 And your orator further shows unto your honor, that he 
 made application to the said F. and S. S., and F. and B., for 
 leave to pay over such money to the said D. S., without sub- 
 jecting himself to any responsibility therefor to them, the said 
 F. and S. S., and F. and B., which they positively refused to 
 do. And your orator also applied to the said D. S., to relieve 
 or secure your orator against the effect or operation of such 
 attachments, and from any further responsibility in the pre- 
 mises, but he, the said D. S., has wholly refused so to do, and 
 
 has commenced an action at law, in the Court of 
 
 ' , to recover the balance of the said money agreed upon 
 
 as the price of such coal. 
 
 And your orator further shows, that he has always been 
 willing to pay the balance cf such money to such person or 
 persons as should be lawfully entitled to receive the same, and 
 to whom he could pay the same with safety ; and he hereby 
 offers to pay the sanie into this court, 
 
rOHMS OF BILLS IN SPECIAL CASUS, 347 
 
 And your orator further shows, that lie doth not in any re- 
 spect collude with either the said D. S., or F. and S. S., or F. 
 and B., touching; the matters in question in this cause; that 
 he hath not exhibited this bill at the request of such defend- 
 ants, or any or either of them, and that he has not been in- 
 demnified by such defendants, or any or either of them, but 
 merely of his own free will, and to avoid being molested and 
 injured, touching the matters contained in such bill. (") 
 Wherefore, and as your orator can only have adequate relief 
 in this court, (s) to the end that the said defendants may in- 
 terplead, and settle their rights to the said sum of money, and 
 that your orator may be at liberty to pay the same into this 
 court ; and that the said D. S. may be enjoined and restrained 
 from further proceeding in the suit at law, so as aforesaid 
 commenced by him against your orator, and that the said F. 
 and S. S., and F. and B., and D. S., may be enjoined and re- 
 strained from commencing any suit against your orator, touch- 
 ing the premises ; and that your orator, upon payment into 
 court of such amount, and procuring the said defendants to 
 interplead according to the course of this court, may be de- 
 creed to be discharged from all liability to such defendants in 
 the premises, and may have all his costs therein. C) May it 
 please, &c., (as in general formula.) 
 
 G. M., p. q. 
 
 Add affidavit, as in General Formula of Bills. 
 
 Bill of Discovery. 
 
 (') To the, &c., (as in general formula of bills.) 
 
 (*) Humbly complaining, shew unto the Court, your or- 
 ators A. M. and C. Mi of, &c., (6) (^) that, by a certain in- 
 strument of assignment, dated the day of made 
 
 betweeil J. D., of the city of Richmond, of the first part, and 
 your orators, of the second part, the said J. D. bargained and 
 sold, assigned, transferred, and set over unto your orators tho 
 certain property, goods, choses in action and securities for 
 money therein, and in the schedules thereto particularly men- 
 tioned in trust, (iet forth assigfifnent, &c. particularly.) And 
 your orators further Show, that at the time aforesaid, there 
 
 (6) If in United States Courts, see General Formula of Bills. 
 
348 FORMS 0¥ BILLS IN SPECIAL CASES. 
 
 ■was duo and owing to the said J. D., from one R. B., of the 
 said city of Eichmond, a defendant hereafter named, the full 
 and just sum of $750, being the balance of an account be- 
 tween him the said R. B., and the said J. D., the particulars 
 of which account are set forth in a schedule marked A., 
 hereto annexed, and to which your orators refer. And your 
 orators further show, that they have repeatedly applied to the 
 said R. B., to pay them the aforesaid sum of 1750, so justly 
 due from him, with which reasonable request he has refused 
 to comply; and having so refused, your orators were com- 
 pelled to, and did commence an action at law, in the superior 
 court of the city of Richmond, for obtaining payment thereof. 
 And your orators charge, that the said R. B. hath pleaded in 
 such suit, and given notice of a set-oif in the same, and hath 
 delivered a particular of such set-off, which, down to the date 
 of such assignment, corresponds with the credit side of the 
 account set forth in the schedule hereto annexed, but that 
 such defendant hath included in the said particular, three 
 several items, one of 150.00, one of $48.00, and one of 
 $36.00, being charges for goods delivered in the course of the 
 
 month of in the year — — for which he claims credit in 
 
 such action. 
 
 Whereas your orators charge, that the said R. B., at the 
 time of the delivery of each and every of such parcels of 
 goods so charged for as aforesaid, knew, and was well apprised 
 of the assignment to your orators, or that he the said J. D., 
 had made some assignment of all his property and effects for 
 the benefit of creditors. 
 
 And your orators have no means of proving such knowledge 
 or information, on the part of the said R. B., in the action at 
 law aforesaid, ^and can only establish the same by means of a 
 discovery from such defendant. And, they are advised, that 
 they cannot safely proceed to the trial of such action without 
 a discovery of the matter,! herein before stated from such de- 
 fendant. C) To the end therefore, (special interrogatory as 
 
 to knowledge.) 
 
 / 
 And that such defendant may make a full and true dis- 
 covery of all the matters aforesaid. (") May it please, &c., 
 (as in general formula.) And your orators will ever pray, &c. 
 
 G.M.^. q. 
 
 Add affidavit, as in affidavit to general formula. 
 
FORMS OF BILLS IN SPECIAL CASES. 349 
 
 Cross bill, 
 
 (*) To the, &c,, (as in general formula of bills.) 
 
 (") Humbly complaining, shewetb unto the Court, your 
 orator A. B. of, &o.,* (^) that 0. D. of, &e., the defendant 
 
 hereinafter named, on or about the — — day of ', filed 
 
 his bill of complaint in this honorable courtj against your 
 orator, thereby praying; (state the prayer of the bill) and 
 your orator being duly served with process [of subpoena,] ap- 
 peared and put in his answer thereto, to which answer the 
 said C. D. replied; and issue being thus joined, witnesses 
 were examined on both sides [and the proofs closed ;] where- 
 upon the said cause was noticed for hearing by the said 0. D., 
 before your honor as by the said bill, and other pleadings and 
 proceedings in the said cause, now remaining filed as of record 
 in this honorable court, reference being thereunto had, Will 
 more fully appear. 
 
 And your orator further showeth unto your honor, that the 
 
 said cause has not yet been heard ; and, oti or about - — ^ 
 
 the said C. D., by a certain writing of release, bearing date 
 
 the ' day of , did remise, release, and forever 
 
 quit claim, unto your orator, his heirs, executors and adminis- 
 trators, the several matters and things complained of, in, and 
 by the said bill of the said 0. D., and in (question in the said 
 suit, and each and every of them, and of all sums of money 
 then due and owing, or thereafter to become due or owing, to- 
 gether with all, and all manner of actions, causes of action, 
 suits and demands whatsoever, both at law and in equity or 
 otherwise howsoever, which he, the said C; D. then had, or 
 which he should or might at any time or times thereafter 
 have, claim, allege or demand, against your orator, for, or by 
 reason or means of any matter, cause, or thing, whatsoever, 
 from the beginning of the world, to the day of the date of the 
 said deed or writing of release ; as by the said release, refer- 
 ence being thereunto had, will appear. And your orator 
 hoped that in consequence of the said release, the said C. D. 
 would not have proceeded in the said suit against your orator ; 
 (*) but the said C. D., combining and confederating, notwith- 
 standing the said release, threatens and intends to proceed in 
 the said suit, and to bring the said cause on for hearing in 
 
 (c) If in United States Courts, seo General Formula of Bills. 
 
 30 
 
350 F0EMS OF BILLS IN SPECIAL CASES. 
 
 duo course ; and he pretends that no such release was ever 
 executed by him, or if so, that the same was obtained by fraud 
 and surprise, and therefore void. (*) Whereas, your orator 
 charges that the same was, in every respect, fairly and pro- 
 perly obtained by your orator, and duly executed by the said 
 C. D. 
 
 And your orator further charges, that under the circum- 
 stances aforesaid, he is unable to put the said release in issue, 
 or to use' the same as a plea in bar in the said suit. All 
 which actings and pretences, are contrary to equity and good 
 conscience, and tend to the injury and oppression of your 
 orator. 
 
 (^) In tender consideration whereof, and forasmuch as your 
 orator has no remedy without the assistance of a court of 
 equity, &c. 
 
 C) To the end therefore, (interrogatories) and that the said 
 release may be established, and declared by this honorable 
 court a sufficient bar to any further proceedings by the said 
 0. D., in the said suit; and that the bill of the said C. D. 
 therein, may, under the circumstances, be. forthwith dismissed 
 with costs, (and for general relief.) Ma^ it please, &c., (as in 
 general formula.) And your orator will ever pray, &c. 
 
 G. M., p. q. 
 
 Add affidavit. (See affidavit annexed to general formula.) 
 
 Supplemental hill.* 
 
 (*) To the, &e., (as in, general formula of bills.) 
 
 (f) Humbly complaining, aheweth unto the Court, your ora- 
 tor J. E. of the city of Kichmond, merchant,'}" (f) that, 
 heretofore your orator exhibited in this court, his original bill 
 
 * The distinctions between supplemental bills and amended bills arc 
 pointed out in preceding volume. See sections 355-367. In the Virginia 
 State Courts, the forms of these bills are almost identical, only requiring 
 the substitution of the word "amendment" or " amended," wherever the 
 •words "supplement" or "supplemental" occur. 
 
 f If in United States Courts, see p. 312. Also section 367 preceding 
 volume. Instead of address as contained in the above form, bills in Vir- 
 ginia State Courts, usually commence with those words: "The supple- 
 mental bill «f your orator A. B. respectfully sheweth to the court, Ac." or 
 " The amended and supplemental bill," or " The amended and supple- 
 mental bill and bill of revivor of your orator A. B. sheweth to the court, 
 &a." These forma are convenient in practice as at once shewing the char- 
 actor of tho. bill. 
 
FOEMS OF BILLS IN SPECIAL CASES. 351 
 
 of complaint against, &c., [setting forth the original bill and 
 proceedings therein after which proceed to state matter which 
 occasions the filing of supplemental bill. If deemed proper 
 (*) charge of confederacy, (') charging part, and (^) averment 
 of jurisdiction may be inserted. ■ See general formula for 
 these.] (') To the end therefore, that the said J. B. and M. 
 L. may severally answer all and every the matters and things 
 charged by way of supplement, and that they may discover 
 and set forth, &c., (here add interrogatories.) (*) And that 
 your orator may have full and general relief in the premises^ 
 such as the nature of his case may require. (") May it 
 please, &c., (as in general formula.) And your orator will 
 ever pray, &c. 
 
 G-. M., p. q. 
 
 Amended hill. 
 See next preceding form and notes thereto. 
 
 Bill of revivor '\ 
 
 (*) To, &c. (as in general formula of bills.) 
 
 (f) Humbly complaining, sheweth unto the Court, your 
 orator A. B. of the city of Kichmond, merchant,! (") that 
 
 on or about the day of , last past, your orator filed 
 
 his bill in this honorable court, against L. M. since deceased, 
 and others, stating therein the due execution and acknowledg- 
 ment by the said L. M., of a certain indenture of mortgage, 
 
 dated the day of in the year 1829, for securing 
 
 the payment to your ^orator of the sum of 13000, lawful 
 money of the United States, according to the condition of a 
 certain bond or obligation therein mentioned, and which in- 
 denture of mortgage comprised a house and lot of ground, ly- 
 ing in the ward of the city of New York ; and further 
 
 stating, that the said L. M.. had niade default in the payment 
 of the said sum, of money, according to the condition of such 
 bond, and thereupon praying (set out the prayer of the bill) 
 as by such bill on file in this court, will on reference appear. 
 
 f See, sections 368 et seq. of preceding tolams. 
 
 J If in United States Courts, see p. 312. See note (f) to form of Bupple- 
 plemental bill, as to form, when bill of revivor and supplement united in 
 Virginia State Courts. 
 
352 FORMS OV BILLS IN SPECIAL CASES. 
 
 And your orator further shows, that the said L. M., being 
 duly served with process, appeared to the said original bill, 
 and put in his answer thereto ; aijd the said cause being at 
 
 issue, the same came on to be heard on the , when the 
 
 court was pleased to order and decree, &c. 
 
 And your orator further shows unto your honor, that some 
 proceedings have been had before the commissioner to whom 
 this cause stands referred; but no report hath yet been made 
 
 thereon. And further, that on or about the , the said 
 
 late defendant, L. M., departed this life, leaving B. D., of 
 — ^ — , (the defendant herein after named) his heir at law, and 
 without having devised, or in any manner disposed of the 
 equity of redemption of and in the said mortgaged premises. 
 
 And your orator further shows unto your honor, that the 
 said suit having become abated by the death of the said late 
 defendant, your orator is, as he has been advised, entitled to 
 have the said suit revived against the said B. D., as the heir 
 at law of the said L. M., and to have the said decree and 
 other proceedings had thereon prosecuted and carried into full 
 effect against the said B. D., in like manner as they could or 
 might have had if the said late defendant had been still living. 
 (') To the end, therefore, that the said B. D. may show cause, 
 if he can, why the said suit and proceedings therein should 
 not stand and be revived against him as such heir at law of 
 the said late defendant as aforesaid, and be in the same plight 
 and condition as the same wei'e in at the time of the abate- 
 ment thereof; and that the said suit and proceedings had 
 therein, may stand and be revived accordingly : (s) may it 
 please your honor to grant unto your orator, the writ of suh- 
 jpcena (a) to revive the same, issuing out of and under the seal 
 of this honorable court, to be directed, &c., thereby command- 
 ing the said B. D., by a certain day, [and under a certain pen- 
 alty, to be therein expressed,] (S) personally to be and appear 
 before your honor, in this honorable court, and then and there 
 to show cause, if he can, why the said suit, and the proceed- 
 ings therein had, should not stand and be revived against him, 
 and be in the same plight and condition as the same were at 
 the abatement thereof; and further, to stand to and abide 
 such order and decree in the premises as to your honor may 
 seem meet. And your orator will ever pray, &c. 
 
 G. M., p. q. 
 
 (a) In Virginia State Courts, the writ of summons. (4) Omit in hills in 
 Virginia State Courts, 
 
FORMS OF STATEMENT IN BILLS. 358 
 
 FORMS OF STATEMENT IN BILLS. 
 
 The following forms of statement in special cases are also 
 added. They should be used in connection with the General 
 Formula of Bills given on page 312, ante. 
 
 Statement in hill for specific performance hy vendor : That 
 your orator was in the month of November, 1814, and is now 
 seised in fee simple of, or well able to make a good title to the 
 messuages and other hereditaments hereinafter mentioned; 
 and that in the month of November, 1814, your orator agreed 
 with \the purchaser^ of, &c., the defendant hereto, for the 
 sale of the said messuages and premises, and he agreed with 
 your orator to purchase the same, at or for the price or sum of 
 $5,640 ; and that articles of agreement in writing were duly 
 signed and sealed by your orator and the said [the purchaser'] ; 
 and the same were in the words and figures following, (that is 
 to say.) And your orator further sheweth, that your orator 
 was ready and willing to give possession of the said farm and 
 
 premises to the said [the purchaser'], on the said day of, 
 
 &c., and to execute all necessary conveyances according to the 
 said agreement; but the said [the purchaser] neglected and 
 refused to take possession thereof, and for that reason your 
 orator got in the crops then on the ground, and otherwise 
 managed the said farm according to a proper course of hus- 
 bandry, and your orator thereby incurred great expense ; and 
 your orator caused a notice to be served on the said [the pur- 
 chaser], on the day of, &c., and the said notice was 
 
 in the words and figures following, (that is to say) — (state 
 notice from vendor that he was obliged to harvest the crops, 
 and should hold the purchaser responsible for all expenses ;) as 
 by the said notice to which, &c. ; and your orator further 
 sheweth, that no part of the said purchase money hath been 
 paid to your orator by the said [the purchaser ;] and your 
 orator hath frequently, by himself and his agents, applied to 
 the said [tJie purchaser], requesting him specifically to per- 
 form the said agreement, and to pay the said purchase money, 
 with interest for the same, after the rate of 6 per cent, per 
 
 annum, from the day of, &c., and also the value of the 
 
 said stock and other things so agreed to be valued as afore- 
 said, and to reimburse your orator for his expenses in culti- 
 vating and keeping in repair the said messuages, farm, tene- 
 ments and premises ; and your orator well hoped, &c. 
 
354 FORMS OF STATEMENT IN BILLS, &C. 
 
 Statement in hill for lease or sale of lands of persons 
 under disability, agreeably to provisions of Code of Vir- 
 ginia, chap. 128, sec. 2 ; That the said E. T. is seised (or, 
 jointly seised with R., B. & L.) of certain real estate lying 
 
 in the of — ■ , and having thereon, (here describe 
 
 condition of premises and its boundaries ;) that it is clearly 
 to the interest of the said E. T. that the said real estate 
 should be sold; that the said E. T. is possessed of the fol- 
 lowing other property, real and personal, to-wit : (here state 
 all the property, real and personal, belonging to E. T., who 
 is the person under disability ;) that this description contains 
 all the property to which the said E. T. is entitled, as your 
 orator verily believes, [and that the income of the said E. 
 T. will not justify such expenditures upon the premises before 
 described, as would make them available for her support; 
 that the said premises are now in a decaying condition, the 
 houses thereon being greatly dilapidated and every day dete- 
 riorating in value, &c., &c. Make these statements, if con- 
 sistent with the facts of the case, and add any others which 
 may shew the propriety of the sale.] 
 
 FORMS OP INTERROGATORIES. 
 
 The following are forms of interrogatories which may be 
 used in bills : 
 
 To the end, therefore, &c. 
 
 Whether the said defendants [ ], or some, or one 
 
 and which of them, have or hath, or lately or ever and when, 
 had in their, or some, or one and which of their possession or 
 power, or in the possession, or power of their, or of some, or 
 one, and which of their attorneys, solicitors, or agents, attor- 
 ney, solicitor, or agent, divers, or some and what deeds, doc- 
 uments, letters, copies of letters, papers, and writings, relating 
 to the matters aforesaid, or some and which of them, or some 
 and what part thereof; and that the said defendants may in 
 manner aforesaid set forth a full and true list or schedule of 
 all such deeds, documents, letters, papers, and writings, 
 relating to the matters aforesaid, or any of them, as are or 
 ever were, in their or any of their possession or power, or in 
 the possession or power of their, or any of their attorneys, 
 solicitors, or agents ; and may discover what hath become of 
 such of them as have been, but are not now, in their or any 
 of their possession or power, or in the possession or power of 
 their^ or any of their attorneys, solicitors, or agents. 
 
FORMS OF INTERROeATORIES IN BILLS. 35 ' 
 
 And [that [^tbe said defendants may in manner aforesaid 
 answer, and set forth a full, true and particular account of all 
 and every the freehold, leasehold and personal estate and 
 effects, which the said [ ], at the time of his death, 
 
 was seised, possessed of, interested in or entitled to, together 
 with the natures, kinds, qualities, true and utmost yalue 
 thereof, and every part thereof, and what parts of the same, 
 and what moneys arisen and produced from the same, or other- 
 wise in respect of the sale thereof, or from the rents and 
 profits thereof, or otherwise in respect of the same, have, 
 and at what times, been received, or come to the hands, pos- 
 session, or power of the said defendants, or any of them, or of 
 any other person or persons, by their or any of their order, or 
 for their or any of their use, or which might have been 
 received by them or any of them but for their or any of their 
 willful default or neglect ; an'd how, or for what purposes the 
 same and every part thereof hath been applied, disposed of 
 and administered : and what respective balances have been 
 from time to time in the hands of the said defendants, or 
 any of them, or otherwise due from them or any of them, in 
 respect of the matters aforesaid : distinguishing in whose 
 hands the same or any part thereof hath been, and the amount 
 of the balance in each year, and in what manner, and for 
 what purposes such respective balances have been applied, 
 .and what interest and profits have been made by them, the 
 said defendants, or any of them, from the use and employ- 
 ment thereof, and what is the total amount or balance in the 
 hands of, or due from them, the said defendants, in respect 
 of the matters aforesaid, and what parts, if any, of the estate 
 and'effects of the said [ ] now remain unsold, or to be 
 
 got in, and administered, and where, and in whose hands, 
 possession, or power, and why the same has not been got in 
 and received, and what is the amount thereof; — and that the 
 said defendant [ ], unless he shall admit assets of the 
 
 said [ ], deceased, sufficient to answer any balance which 
 
 may be'found due from his estate, in respect of the matters 
 aforesaid, may in like manner set forth an account of his 
 personal estate and effects, and of the produce thereof pos- 
 sessed and received by him the said defendant [ ], and 
 of the amount or balance due from him in respect thereof. 
 
 That the said [the personal representat{veii]ma-j set forth a 
 short particular of the personal estate of the said [ ], 
 
 at^his decease, and of their receipts in respect thereof, and of 
 tlieir payments thereout, and the amount of the debts due by 
 
356 roBMS OF intbrkogatOribs in bills, &c. 
 
 the said [ ] at Ms decease, and the amount of such 
 
 debts still unpaid, and by what documents the items of such 
 estate, and of the receipts and payments thereout appear. 
 
 That the said [the trustees] may set forth a short particular 
 of all the [freehold and leasehold'] estates, which the said 
 [ ] was seised of, or entitled unto, at the time of his 
 
 death, and of all the rents, income and produce of the said 
 real estates, which have been, and in what years and from 
 what estates, received by the said last named defendants, or 
 either of them, or by any other persons, and whom, for their 
 or either of their use, and of the purposes to which the same 
 have been applied, and of the amount due from the said last 
 mentioned defendants on account thereof; and by what books 
 and documents the items of such receipts appear. 
 
 FORMS OF PRATER. 
 
 The following ai'e forms of prayer in special cases : 
 
 That the said defendants [ ] may either admit assets 
 
 of the said [ ], deceased, adequate for that purpose, or 
 
 that all proper accounts of the estate of the said [ ] 
 
 may be taken, and directions given for the payment of what 
 shall be found due as aforesaid. 
 
 That the will of the said [the testator] may be established, 
 and the trusts thereof carried into execution under the direc-' 
 tion of this honorable Court. 
 
 That the trusts of the said indenture may be carried into 
 execution under, &c. 
 
 That the said defendant may be declared to be a trustee for 
 your orator of the said trust funds and premises comprised in 
 the said indenture of settlement. 
 
 That it may be declared that the said sum of 8— — , be- 
 queathed to the [ ] by the said will, hath become appli- 
 cable to the trusts of the said indenture. 
 
 That an account may be taken under the direction of this 
 honorable Court, of, &c. 
 
 Of all such parts of the leasehold and personal estate of the 
 said [ ], and of the moneys arisen and produced there- 
 
 from, and of the rents, profits, and produce thereof, as have 
 been possessed or received by the said defendants [ ], 
 
 or any of them, or by their, or any of their order, or for their, 
 or any of their use. 
 
FORMS OF PRAYER IN BILLS. 837 
 
 Or -which, without their, or some or one of their willful 
 default, might have been so received. 
 
 That the balance due from the said defendant on such 
 account may be ascertained. 
 
 That the said defendants may severally answer and pay 
 into Court the balances which may be found due from them 
 on such accounts. 
 
 In case it shall appear that the said rents and profits are 
 insufficient for that purpose, then that it may be declared that 
 the said legacies ought to be raised by sale or mortgage of the 
 said devised estates. 
 
 That the said freehold and leasehold hereditaments, or a 
 competent part thereof, may be sold, and all necessary parties 
 may be ordered to join with your orator in exectiting such 
 conveyances and assurances of the said premises, as may be 
 necessary. 
 
 That the outstanding debts, securities, and other the per- 
 sonal estate of the said [ ] may be got in and con- 
 verted into money. 
 
 That proper directions may be given for the management 
 of the said hereditaments, and for the application thereof and 
 of the rents of the same, to the payment of the said debts, 
 and all other debts of the said [ ] in a due course of 
 
 administration. 
 
 That all proper directions may >be given for effectuating 
 the purposes aforesaid. 
 
 That proper directions may be given for the application of 
 the balance which shall be found due from the said defendants 
 on the said account. 
 
 That all proper directions may be given for the administra- 
 tion of the estate and effects of the said [ ], under the 
 directions of this honorable Court. 
 
 That the clear residue of the said testator's real and per- 
 sonal estate may be secAed for the benefit of the several 
 persons entitled thereto, according to their respective interests 
 therein, pursuant to the trusts of the said will. 
 
 That due provision may be made for the investment of the 
 
 said sum of $ , under the direction of the Court, and 
 
 upon the trusts by the said will declared concerning the same, 
 
358 FORMS OF PRAYER IN BILLS. 
 
 That it may be ascertained who, in the events that have 
 happened, have become entitled to the said trust estates. 
 
 That the said defendant may be declared to bave forfeited 
 all his interest in the said trust funds, and that the same, in 
 the events which have happened, have become vested in your 
 orators under the limitations of the said indenture. 
 
 That the said sum of I , bequeathed to the said defend- 
 ant [ ], by the said will, may be declared to be in full 
 satisfaction of the same sum so covenanted to be settled by 
 the said [fJie testator^ upon the said defendant by the said 
 marriage articles bearing date, &c. 
 
 That the said defendant may be restrained by the injunc- 
 tion of this honorable court from transferring or paying over 
 the said Bank Annuities, or any part thereof, to any person 
 or persons, and from receiving, paying, assignipg, disposing, 
 transferring, or in any wise intermeddling with the real and 
 personal estate and effects of the said [ ], deceased, or 
 
 any part thereof, and the rents, profits, dividends, or produce 
 of the same respectively, or any part of the same. 
 
 That some proper person may be appointed receiver of tbe 
 personal estate and effects of the said [ ], deceased, 
 
 and of the profits, dividends, and produce thereof, [including 
 the share of the said testator in the said co-partnership assets,] 
 and of the rents and profits of the said real estates. 
 
 That a receiver may be appointed by this honorable Court 
 to collect, get in, and receive the outstanding personal estate 
 and effects of the said [ ]. 
 
 That the said \the purchaser'] may be decreed to perform 
 
 specifically on his part the' said agreement of the day of, 
 
 &c., and to pay to your orator the said sum of 8 , with 
 
 interest thereon, at the rate of 6 per centum per annum, 
 
 from the day of, &o. ; and that the value of the said 
 
 stock, and other things so agreed to be - valued as aforesaid, 
 and the amount of your orator's expenses in getting in the 
 crops of the said farm of the ygar 1815, and in otherwise 
 managing the said farm, may be ascertained under the direc- 
 tion of this honorable Court, and that the amount thereof 
 may be paid to your orator by the said defendant, your orator 
 being ready and willing to convey the said premises to the 
 said defendant, or as he shall appoint. 
 
,&c. 359 
 
 For an, injunction. — And that the said C. D. and E. P., 
 their attorneys, agents, and all others, may be restrained by 
 an injunction issuing out of this Court, from proceeding fur- 
 ther against your orator, in the said action commenced against 
 him in the said Court of this State, and now pending and at 
 issue therein, for the recovery of the possession of said prem- 
 ises, with their appurtenances; and also from instituting a 
 proceeding in any new or other action at law, for the recovery 
 of the possession of said premises, or any part thereof. And 
 that your orator may have (^prayer for general relief.') May 
 it please the Court to grant unto your orator the writ of in- 
 junction, commanding the' said C. D. and E. F., their attor- 
 neys, agents, and all others, absolutely to desist and refrain 
 from proceeding further against your orator in the said action 
 as above. 
 
 For a ne. exeat — in U. S. Circuit Courts. — And that the 
 said defendants inay be stayed by the writ of ne exeat regno,* 
 from departing out of the jurisdiction of this Court. And 
 that your orator (.prayer for g&neral relief.) May it please 
 your honor to grant unto your orator the v;rit of nc exeat 
 regno staying the said C. D. and E. F., or either of them, 
 from departing into parts beyond this State, and out of the 
 jurisdiction of this Court, without leave first had. 
 
 PRACTICAL NOTES ON BILLS IN EQUITY, &c. 
 
 See pp. 250-259; also 281-293 ; also, pp. 295, 290, 297, 29S, 308, 309, 
 310, 311, ante. 
 
 Foreclosure of mortgages, A person entitled to u, part only of a 
 sum of money secured on mortgage, cannot file a bill for a foreclosure 
 without making the other persons entitled to the residue, parties. Lowe 
 V. Morgan, 1 Bro. Ch: Ca. 363. See Palmer v. The Earl of Carlisle, 1 
 Sim. & Stu. 423, and Spence's Eq. Ju. vol. II., p. 674. 
 
 For cases of bills of foreclosure filed against infants, see Booth v. Kich, 
 1 Vern. 295 ; Goodier v. Ashton, 18 Ves. 83, 2d edit. ; Mondey v. Mondey, 
 1 Ves. & Bea. 228, and 1 Madd. Ch. Pr. 532 ; also, 11 Lorn. Dig. R. P. 
 399; against married women, 3 P. Wms. 352 ; 11 Lom. Dig. R. P. 399. 
 
 With regard to making all incumbrancers parties, see Bishop of ■Win- 
 chester V. Bearer, 3 Ves. 314, '15, 2d edition, and cases there referred to. 
 
 ■» So called in Rules of United States Supreme Court. 
 
860 VIRGINIA STATE COURTS. 
 
 To a bill of foreclosure against fhe principal mortgagor, the mortgagor 
 of anoHaer estate as a collateriil security is a. necessary iparty. Stokes v. 
 CJendoB, 3 Swanst. 160 n;'S. C. 2 Bro. Ch. Ca. 275 n. All persopa having ■ 
 an interest in the equity of redem{>ti'on must be made parties to a 1>ill of 
 foreclosure. Calverly «. Phelps, 6 Madd. 229 ! in this case, the equity of 
 redemption had been conveyed to' trustees upon trust to sell and pay off 
 incumbrances, and divide the surplus amongst certain persons specified, 
 with a power to the trustees to giye receifits'to purchasers ; the ceetuis ^ue 
 trust were held to be necessary parties to the bill filed by a mortgagee for 
 a foreclosure. 
 
 The executors or administrators, and not the heirs of the mortgagee 
 of slaves, should bring the bill to foreclose. Harrison ». Harrison et als,, 
 1 Call, 419. And if there be no executors or adpainistrators, it should be 
 suggested, and the children of the mortgagee should be made parties. 
 aid. 
 
 In a bill to foreclose a mortgage, the devisees of the land mortgaged 
 ought to be parties defendant, and not the executors of the mortgagor. 
 Graham's executors v. Carter, 2 H. (!i^ M. fi. ' 
 
 Where lands devised to be sold have been.sold by one of seyeyal execu- 
 tors, all the executors ought to be parties to a suit to foreclose a mortgage 
 previously existing upon those lands. So, also, all the purchasers, in 
 order to be subjected to a ratable contribution to satisfy the mortgage, 
 Southgate, v. Taylor, 5 Mnnf. 420, 
 
 Upon a bill by mortgagee against mortgagor to foreclose, satisfaction or 
 release presumed from the lapse of twenty years, such presumption being 
 corroborated by other circumstances. Jones' adm'x. v. Comer's ex'rs., 5 
 Leigh, 350. See II. Lom. D|ig. E. P. 398; 4 Kent Com. 182; 12 Ves. 
 266 ; 2 Bro. Ch. Ca. 289 ; Hugheg v. Edwards, 9 Wheat. 489. 
 
 A deed of mortgage containing a clause -which provides that after de- 
 fault the mortgagee may enter on the property and receive the rents, 
 issues and profits thereof for their own indemnity,' it is contended that no 
 sale should be decreed, unless the, profits are inadequate for such indem- 
 nity, though there is on the deed an absolute conveyance of the fee, with 
 a defeasance in case of paiyment. ~ The right of the mortgagees to have a 
 foreclosure and sale, is not impaired hythe above-mentioned clause. 
 Harkins ti. Forsyth et als., 11 Leigh. 294. 
 
 The mortgagee may proceed at law on his , bond or covenant, at the 
 same time that he is proceeding on his mortgage in equity; or he may, 
 after a foreclosure and sale, sue at law on his bond for the deficiency. 
 But he cannot, by means of a bill to foiieolose, obtain, at once, the whole 
 effect of a suit in equity upon tb_e mortgage, and of a suit at law upon 
 the bond. On the bill to fbfeclose, he will Be confined to the mortgaged 
 subject. Such a suit is not intended to act <» personam, Dunkley «. 
 
PRACTICAL NOTES TO BILLS, AC, 361 
 
 Van Biiren and als., 8 John. Oh. Eep. 830 ; Jones, &o. o. Gonde and wife, 6 
 John, Ch. Rep. 17; Hughes, Ac. v.' Edwards and wife, 9 Wheat. 489; 
 Davis T. Battyne, 2 Euss. & Mye. 76. 
 
 A mortgagee of stock is not hound to bring a hill of, foneoloaurej but 
 may sell it. Tucker v. Wilson, 1 P.,W. 261. . 
 
 The rents and profits received by the mortgagoryior equitable owner in 
 possession of land, and which have accrued before an order of sequestra- 
 tion is made, cannot be recovered from him ^ by . the mortgagee or vendor. 
 Claike V. Curtis, 1 Grat. 289. 
 - Equity of redemption. — It may be stated gen«raly, that . every- person 
 claiming any interest, legal or equitable, in the property mortgaged, under 
 or through the mortgagor,, by oonveyanoe, by operation of law or other- 
 wise, that is, in privity of title, ias a right to redeem the property in 
 order to make his own claims available, whether those who may have a 
 prior claim to redeem are willing or not. 2Fonb.'168j 2 Spenoe's Bq. 
 Jur. 660. 
 
 The owner of the equity of redemption of part of the estate in mort- 
 gage, cannot separately redeem his part ; the mortgagee has a right to 
 insist that the whole of the mortgaged estate shall he redeemed together; 
 else, as Sir Thomas Plumer- observed, if the estate were sold in twenty 
 lots, there might be twenty bills. Cholmondpley v, Clinton, 2 Jac. & 
 W. 134, cited by Spenoe, 2 Bq. Jur. 666. 
 
 It is now settled, that the mortgagor cannot file a bill to redeem until 
 after the time fixed for paymeot of the mortgage money has expired. 
 Brown v. Cole, 14 Sim. p. 428, cited by Spenoe, 2 vol. p. 668. 
 
 In the English Courts, on a bill to redeem, if party plainliiff does not 
 redeem the mortgage by paying principal, interest and costs, ascertained 
 by the master, the bill will be dismissed, which is equivalent to decreeing 
 foreclosure. 1 Mad. Ch. 530. In the Virginia State Courts, the decree 
 will be that, upon the plaintiff's paying what is due on mortgage, &o., 
 then mortgagee shall convey to him mortgaged premises ; and if not, then 
 that plaintiff be foreclosed of all equity of redemption, and that the mort- 
 gaged premises be sold, &a. See Turner v. Turner, 3 Munf, 66. 
 
 As a general rule, there can be no redemption of a mortgage after 
 twenty years possession. Whiting v. White, Coop. 4; Beckford «. Wade, 
 17 Ves. 99 ; Anon. 3 Atk. 313 ; unless circumstances are proved by the 
 mortgagor, showing an acknowledgiiLent of his title by the mortgagee ; 
 Barron v. Martin, 19 Ves. 327 ; or unless the mortgagor has labored nndei 
 an impediment ; and, even in that case, according to Lord Eeayon's 
 opinion, there can be no redemption after ten years from the/ttme the 
 impediment has been removed. Beckford v. Wade, 17 Ves/«9. 
 
 On a bill for redemption, against the mortgagor of slayiW, parol testi- 
 mony is admissible to prove that a bill of sale appearing absolute on its 
 face, was, in fact, intended as a mortgage; espeoiall/, if it appear from 
 31 
 
362 VIRGINIA STATE COURTS. 
 
 written documents that the mortgagoi; -was suffered to remain in posrea- 
 sioa of the slaves after eueh hill of sale was given. Ross V. Norvell, 1 
 Wash. 14. 
 
 Speoific performance. — Courts of Equity decree the speoifio exeention 
 of contraets in cases where the legal remedy of the party is inadequate. 
 Thus, a contract of land may be specifically executed in Chancery, he- 
 cause each piece of land has a value arising from its local situation and 
 circumstances, peculiar to itself; especially in relation to particular per- 
 sons. Damages in such case being founded on the mere market value of 
 the property, would not in general be an adequate compensation to the 
 disappointed party; (II. Rob, Pr. 167, and cases cited.) But equity will 
 not, in general, decree in favor of a vendee a specific execution of con- 
 tract relating to personal chattels, because usually damages given at law 
 would be a perfect compensation in such cases. (See II. Rob. Pr, 1&7, 
 and cases cited,) Yet there are cases, in the books, in which specific 
 performance of contracts relating to personalty has been enforced in 
 equity, because in the particular cases, damages at law did not afford a 
 complete remedy. (II, Eob, Pr, 168, and eases cited,) 
 
 A party who has obtained an ineqtdtable bargain, will not he received 
 in a Court of equity to demand its performance. If the inadequacy of 
 consideration be so great as to render the bargain hard and unconscion- 
 able, equity will refuse its aid to enforce the contract and will leave the 
 parties to contest their lights in a court of law, 6 John, C, E, 222, 
 
 Illegality in a contract will prevent specific performance, II Lom, Dig. 
 B, P, 69. 
 
 The remedy in equity must be mutual, and where a bill will lie for the 
 purchaser, it will also lie for the vendor. See Adderly v. Dixon, 1 Sim, & 
 Stu, 607. II, Rob, Pr, 168, II, Lomax's Dig, Real Pro, 55. Upon this 
 ground. Lord Redesdale questioned whether, in cases arising under the 
 statute of frauds, the plaintiff could have specific performance of an 
 agreement signed b"y the defendant and not by the plaintiff; Lawrenson 
 V. Butler, 1 Sch, & Lef. 20 ; but it has been ruled that he could, by Chan- 
 cellor Kent, and the Court of Errors in N, Y. See Glason v, Bailey, 14 
 John, Rep. 489. In case of an infant plaintiff, however, suing by a next 
 friend, because the act of filing bill did not bind infant, speoifio perform- 
 ance of a contract was not decreed. See Flight v. Holland, 4 Euss, 298. 
 II. Lomax's Digest Real Property, 52, 56. 
 
 The plaintiff in equity, if he has not performed his part of the agree- 
 ment, must, not only show that he was in no default in not having per- 
 formed it, but must also allege that he is still ready to perform it. See 1 
 Ponb. Eijjiity, 391, note d; Sugden on Vendors, 360. 
 
 When cm person enters into an agreement with another for the benefit 
 of a third person, such third person may come into a court of equity and 
 compel a speoifit performance. Hook v. Kinear, in note, 3 Swanst. 417. 
 
PRACTICAL NOTES TO BILLS, &0. 363 
 
 ■When a bill seeks to charge vendor with loss sustained by reason of pur- 
 chase-money remaining unproductive in plaintiff's (vendee's) hands, no- 
 tice to the vendor is essential. See Powell v. Martyr, 8 Ves. 145. Winter 
 V. Blades, 2 Sim. & Stu. 393. 
 
 If a bill is filed against several purchasers of different lots, at a sale by 
 auction, they may demur for multifariousness. Brookes v. Lord Whit- 
 worth, 1 Madd. Rep. 88. Reyner v. Julian, 2 Dick, 677, and note (b) to 
 5Madd. 144. 
 
 In Heaphy v. Hill, 2 Sim. & Stu. 29, the bill by the lessee for a specific 
 performance was dismissed, not having been filed for more than two years 
 after the treaty had been broken off, and the defendant had refused to 
 perform the contract. 
 
 A party, unless he has shewn himself prompt and desirous, cannot call 
 for specific performance. II. Lorn. Dig. R. P. 70, 72, 73. See MoCue v. 
 Ralston, 9 Grat. 430. 
 
 As to cases when specific performance will be decreed against infants, 
 lunatics, and husband and wife, "•>» H. IJomax's Digest Real Property, 
 52, £3. wiien not, at suit of husband and wife. Watts et als. v. Kinney 
 ot ux,, 3 Leist, 272. 
 
 When a purchaser takes possession, with notice of a defect, which it is 
 understood is to be remedied, he cannot he compelled to complete his 
 purchase ; Duncan v. Cafe, 2 Mees. & Wils. 244 ; and acts of ownership 
 after an authorized possession, are of no importance. Osborne v. Harvey, 
 
 1 Yo. & CoL C. C, 116, cited by Whitwoith, J!q. PI. note (i) to p. 226. 
 Defects which are patent are not ground for resisting specific perform- 
 ance. II. Lorn. Dig. R. P. 65. 
 
 Deficiency if considerable in the quantity of land sold is a ground for 
 refusing specific performance ; Jackson v. Ligon, 3 Leigh, 161 ; II. Lorn. 
 Dig. R. P. 60 ; although the quantity was described as more or less. Ibid. 
 
 [A deficiency of five acres and a fraction in a parcel described as 41 
 acres by estimation, more or less, was held not sufScient to refuse specific 
 performance. II. Lom. Dig. R. P. 61.] See 1 Munf. 330; 4 Munf. 332; 
 
 2 H. & M. 164; 5 Call, 1 ; 5 Munf. 342 ; 5 Leigh, 48, 59. 
 
 The contract to he specifically performed must be certain. II. Lom. 
 Dig. Real Prop. 62. 
 
 A misdescription of the estate, though without fraud, is an objection to 
 specific performance. IL Lom. Dig. R. P. 58. 
 
 Clear mistake and surprise, in a contract for sale and purchase of an 
 estate, is an objection to specific performance, if .the substance of the con- 
 tract be materially affected. II. Lom. Dig. R. P. 66-67. Graham v. 
 Hendren, 5 Munf. 185. 
 
 Compromise of a doubtful right is a sufficient consideration for a con- 
 tract that will be specifically performed, though the right turn out on the 
 other side. II. Lom. Dig. R. P. 68. 
 
364 VIRGINIA STATE COURTS. 
 
 Saving the honor of a father and his family, a sufficient indnoement to 
 a contract that will be epeoifically enforced. II. Lorn. Dig. R. P. 68. 
 
 [An agreement to settle boandariea Will be specifically enforced. 1 Vea. 
 460.J , 
 
 The assignee for value of a note given for the purchase money of land, 
 may maintain a suit against his assignor, the vendor and the vendee, for 
 a specific execution of contract, in a case proper for such relief. Hanna 
 T. Wilson, Ac., 3 Grat. 243. 
 
 The application for a specific executioit of a eontract, is addressed to 
 the sound discretion of the court. He who asks it must have shown him- 
 self prompt and willing to comply with the contract oil his part ; and the 
 prayer will not be granted if it would be inequitable towards the other 
 party; Bowles v. Woodson, 6 Grat. 78: in this ease, vendee paid a part 
 of purchase money, and failing to eomply further, though required so to 
 do by the vendee, on such failure the vendor disclaimed the contract, but 
 refused to pay back the purchase money paid. Sis years after, the vendee 
 seeks to enforce the contract : this was refused ; but jieldf the vendee waa 
 entitled to have the money he had paid returned to Dim. 
 
 A parol contract for exchange of lands partly executed by delivery of 
 possession and acts of ownership over the land received in possession, 
 specifically enforced in equity. Parrill v. McKinley, 9 Grat. 1. In this 
 case, there was a deed executed by one of the parties, oonveying his land 
 to the other, and though not delivered, it was held a sufficient memoran- 
 dum in -writing to bind the grantor, under the statute of frauds. 
 
 Other cases in which specific performance decreed-^-Foley v. McKeown, 
 4 Leigh, 627; Smith v. Jones, 7 Leigh, 165; Clarke, &a. v. Curtis, 11 
 Leigh, 669; Williams v. Lewis, 6 Leigh, 686. 
 
 Other oases in which specific performance refused — Moore's adm'rs. v. 
 Fitz Randolph and als., 6 Leigh, 176 ; Payne v. Graves, 6 Leigh, 661 ? 
 Pigg V. Corder, 12 Leigh, 69; McCann v. James, 1 Rob. 266; Bryan v. 
 LofTtus's adm'rs, 1 Rob. 12. 
 
 Diteovery, — Bee Code of Virginia, chap. 176, see. 38-^40. See pp. 262, 
 263, 264; also p. 303, ante. See also Gregory's adm'r v. Marx's adm'r, 1 
 Rand. 366 ; Rankin v. Bradford and als;, 1 Leigh, 163 ; Harden's ex'ors 
 V. Harden, 2 Leigh, 672 ; Meze t. Mayse, 6 Rand. 668 ; Bass v. Bass, 
 4 H. & M. 478; atd Webster v. Couch, 6 Rand. 619. 
 
 For injunction to judgments at law. — (See Codo of Virginia, chap. 179, 
 passim.) Courts of equity relieve against judgments at law, not because 
 they were wrongj but because of some nfew matter which the court of law 
 did not or could not pronounce a judgment on, or which, for some just 
 cause, the party could not bring to the consideration of the court. Green, 
 J., in Garland V. Rives, 4 Rand. 316. When a cause has been fully heard 
 and decided in a court of law 'having competent jurisdiction over th j sub- 
 ject, equity will not interfere merely because injustice may have teen 
 
&G. 366 
 
 done at law. On the oontrary, it -will refuse its interference upon any 
 ground of which the court of law had cognizance, unless the complainant 
 shew a sufficient excuse for having failed to obtain redress at law. Kin- 
 caid T. Ouningham, 2 Mnnf. 1 ; Auditor v. Nicholas, 2 Munf. 31 ; Dust v. 
 Conrod and als., 5 Munf. 411 ; Carr, J., in Chapman v. Harrison, 4 Eand. 
 338; Brown v. Tool's adm'r, i Band. 643; Cabell's ex'rs v. Roberts's 
 adm'rs, 6 Band. 580; Taylor, (Ch.) in Tanoey T. Peuwiok, 4 H. & M., 
 423. 
 
 In order to obtain a new trial from equity, fraud or surprise must be 
 suggested and proved, or it must appear that some material adventitious 
 'circumstance has arisen, which could not have been foreseen or guarded 
 against. Terrell v. Dick, 1 Call, 546 ; 2 H. & M. 189 ; 2 H. & M. 408 ; 
 2 Munf. 253 ; 2 Munf. 290. When it is shewn that the complainant might 
 have defended himself at law, but for the fraud and surprise sractised on 
 him by the opposite party or his agent, this will give equity jurisdiction 
 to relieve against the judgment, if, upon the other circumstances of the 
 case, the party be entitled to relief. II Rob. Pr. 214 ; also. King v. Smith 
 and als., 2 Leigh, 157 ; Poindexter v. Waddy, 6 Munf. 418 ; 6 Eand. 1 ; 
 Lee V. Baird, <jbc., 4 H. <fc M. 453 ; West's ex'or v. Logwood, 6 Munf. 491 ; 
 Herd v. Bishman, 5 Call, 279 ; Mayo r. Bentley, 4 Call, 528 ; Mason v. 
 Nelson, 11 Leigh, 22?. 
 
 [A bill of injunction will lie to restrain proceedings on decree obtained 
 by surprise. Callaway v. Alexander, &c., 8 Leigh, 114.] 
 
 Cases in which court of equity has refused relief against judgment be- 
 cause of neglect to defend at law. Donally v. Ginatt's adm'r., 5 Leigh, 
 359; Haden v. Garden, 7 Leigh, 157; Bieme v. Mann and als., 5 Leigh, 
 364; Turner v. Davis and als., 7 Leigh, 227; Collins and als. v. Jones, 6 
 Leigh, 530 ; Morgan v. Carson, 7 Leigh, 238. 
 
 Cases in which court of equity has refused relief, when party plaintiff 
 alleged surprise, when party might have had full redress by suffering a 
 non-suit — Tarply's adm'r v. Dobyn's, 1 Wash. 185 ; Oswald, <tc. v. Tyler, 
 &c., 4 Rand. 44. 
 
 Refusal of relief against judgment for causes other than neglect to 
 defend at law — Taylor, (Ch.) in Williamson's adm'r v. Applebury, 1 Hen. 
 & Munf. 208 ; Jordan's adm'r v. Williams, 3 Rand. 501. See also Norrig 
 V. Hume, 2 Leigh, 334. In this last case, the plaintiff averred in his bill 
 that " though he was unable to prove the matter of his plea, (a special 
 plea in bar,) on the trial at law, he was then able to prove it," without 
 suggesting fraud, accident, mistake or other circumstance which prevent- 
 ed him from establishing his defence at law — the court held that chaacery 
 has no jurisdiction to grant relief in the case. 
 
 When material evidence has been discovered after judgment, if the 
 party failed to procure for causes beyond his control, equity will relieve 
 against judgment by granting a new trial; 3 Desau. 310 : but if he oould 
 
366 VIRaiNIA STATE COURTS. 
 
 with ordinary diligence have known, and obtained the evidence in time, it 
 is not a sufficient ground for new trial. De Lima v. Glassel's adm'r., i H. 
 & M. 369. See Arthur ti. Chavis, 6 Rand. 142. 
 
 When a purchaser copies into a court of e?(aity for relief against a 
 judgment at law, on the ground of defect in vendor's title to part of the 
 tract of lasd purchased, it is not enough for him to allege such defect or 
 want of title; but he must prove an actual eviction, or superior title in 
 some other person. Yancey v. Lewis, 4 Hen. & Munf. 390. See also Grant- 
 land V. Wight, 5 Mnnf. 295. 
 
 Sometimes matter arising subsequent to judgment makes its enforcement 
 improper, and there eqnity will relieve. See Royall's adm'rs v. Johnson 
 and als., 1 Rand. 421 ; Miller's ex'rs v. Rice and als., 1 Baud. 438 ; also, 
 Crawford v. Thurmond and als., 3 Leigh, 85. 
 
 And any fact which clearly proves it to be against conscience to execute 
 a judgment, and of which the injured party would not have availed him- 
 self in a court of law, will justify an application to a court of chancery. 
 Marine Ins. Co. v. Hodgson, 4 Cranoh, 336, cited II Rob. Pr. 218. See 
 Royall's adm'r v. Royall's adm'r, 5 Munf, 82 ; Pendleton's adm'rs v. Stuart, 
 Ac, 6 Munf. 377; Pickett, &c. v. Stewart, Ac, 1 Rand. 478. 
 
 A<jOTirt of chancery in Virginia may injoin a person on whom its pro- 
 cess can be served, from proceeding on a judgment of another State. II 
 Rob. Pr. 224. 
 
 A State court has no jurisdiction to injoin a judgment of the circuit 
 court of the United States. McEim d. Voorhies, 7 Cranch, 279. 
 
 The courts of the United States have no authority to grant injunctions 
 to stay^ proceedings in any court of a State. 1 Story's Laws U. S. p. 311, 
 s. 5. 4 Cranch, 179. 
 
 The county [or corporation] courts of Virginia cannot grant injunctions 
 to a judgment of the superior [circuit] courts. Hite v. !Fitz Randolph, 1 
 Virg. Ca. 269. See Code of Virginia, chap. 179, sec. 4. 
 
 Though a courtof equity will not award an injunction to a judgment 
 at the instance of a person who was not a party thereto, yet a person 
 standing in that situation may obtain an injunction to injoin the proceed- 
 ings under a particular execution, if he should be aggrieved thereby. 
 Jordan's adm'x v. Williams, 3 Rand. 501. 
 
 As to injunctions to executions, see Randolph v. Randolph, Ac, 3 
 Munf. 99; Wilson & Trent v. Butler, Ac, 3 Mufif. 569; Allen y. Free- 
 land, 3 Rand. 175 ; Harrison v. Sims, 6 Rand. 606 ; Bunn v. Amey and 
 als., 1 Leigh, 465 ; Hughes v. Pledge and als., 1 Leigh, 443 ; Chapman v. 
 Worthington, 4 Call, 327; Sampson v. Mitchell's ex'or, 6 Munf. 175. 
 
 For an injunction to restrain tenant for life from carrying away slaves. 
 Bee Westcott v. Oady, 5 John. Ch. Rep. 349; Smith and'others v. Daniel, 
 2 Mc'Cord's Ch. Rep. 149 ; Holliday v. Coleman, 2 Munf. 162; Taylor, 
 
PKACTIOA^i NOTES TO BILLS, AC. 367 
 
 (Oh.) in Mortimer v. Moffatt and wife, 4 H. & M. 803 ; Bishop's ex'or v. 
 Bishop, &a., 2 Leigh, 484. 
 
 For an injunction to restrain waste. — The modern, practice in this 
 country, as well as in England, is to resort to the prompt and efficacious 
 remedy by an injunction bill to stop the commission of waste. 4 Kent. 
 Com. 11. 
 
 The question as to what is waste, will in some measure be determined 
 by the circumstances and situation of the country in which property lies. 
 That may not be waste, for example, in an entire Woodland country, 
 which would be so in a cleared one. See II Bob. Pr. 228 ; Findlay v. 
 Smith, Ac, 6 Munf. 142, 148. See also Crouch v. Puryear, 1 Band. 258 ; 
 Wlnship T. Pitts, 3 Paige, 259 ; Watson v. Hunter, &a., 5 John. Ch. Eep. 
 169; Hawley T. Clowes, 2 Johns. Ch. Rep. 122; Loomis t. Wilbur, 5 
 Mason, 13. 
 
 Chancery goes greater lengths than the courts of law, in staying waste. 
 II Rob. Pr. 231. 
 
 Chancery will not interpose to restrain waste by a defendant who claims 
 under a title adverse to that of the plaintiff. Pillsworth t. Hopter, 6 Ves. 
 51 ; Storm v. Mann, 4 John. Ch. Rep. 21 ; Higgins, 4o. T. Woodward and 
 wife, 1 Hopkin's Ch. Rep. 342. 
 
 For an injunction to atop or prevent a nuisance. — There is no doubt of 
 the jurisdiction of equity in cases of private nuisance ; Van Bergen T. 
 Van Bergen, 2 John. Ch. Rep. 272 ; but public nuisances are public of- 
 fences, over which the courts of law have had a uniform and undisputed 
 cognizance. Attorney General v. Utica Ins. Co., 2 John. Ch. Rep. 371. 
 See Beveridge v. Lacey, 3 Rand. 63 ; Wingfield v. Crenshaw, 4 H. & M. 
 474. 
 
 The cases in which chancery has interfered by injunction to prevent or 
 remove a private nuisance, are those in which the nuisance has been 
 erected to the prejudice or annoyance of a right which the other party 
 had long previously enjoyed. It must be a strong and mischievous case 
 of pressing necessity, or the right must have been previously established 
 at law, to entitle the party to call to his aid the jurisdiction of this Court. 
 Ch. Kent, in Van Bergen v. Van Bergen, 3 John. Ch. Rep. 282, cited in II 
 Rob. Pr. 231. 
 
 Courts of equity will interfere in the case of a nuisance, where there is 
 a flagrant violation of private right, attended with public injury, when the 
 law would neither afford an immediate nor an adequate remedy until irre- 
 paraile injury might 1)e done. Wingfield v. Crenshaw, 4 H. <t M. 474. 
 In this case, the plaintiff complained that defendant had raised his mill- 
 dam two feet higher than its_ accustomed height, by means of which de- 
 fendant had caused a mill-seat of the plaintiff to be overflowed by the 
 backing of the stream, whereby plaintiff was prevented from building his 
 
368 VIRGINIA STATE COURTS. 
 
 mill and the health, of the plaintiff's family was affected. The ease was 
 certainly a strong one, yet the court held that a suit at law was the 
 proper action, and that " although a court of chancery might interfere in 
 the case of a nuisance where there was a flagrant violation of private 
 right, attended with public injury, when the law would neither afford an 
 immediate nor an adequate remedy until irr^arahle injury might he done, 
 yet this was not one of these cases," and the injunction was refused. 
 See Miller v. Trueheart and als., 4 Leigh, 669 — the bill in which case is 
 copied on page 331, ante, of this volume. 
 
 [As to injunction to prevent a nuisance in depriving plaintiff of the use 
 of a water-course, see II. Rob. Pr. 232 ; Coalter v. Hunter, Ac, i Rand. 
 68 J Stokes & Smith v. Upper Appomatox Co., 3 Leigh, 318; Coalter v. 
 Hunter, &a., i Rand. 68. 
 
 As to injunction to prevent a nuisance in erecting a dam so as to injure 
 plaintiff's mill — see II. Rob. Pr. 232. Arthur, Ac. v. Case, &o., 1 Paige's 
 Ch. Rep. 447.] 
 
 For an injunction to prevent irreparable mischief. — An injunction will 
 also be awarded in other oases, where great and irreparable mischief 
 would be the Consequence of a refusal'to injoin. Crenshaw v. Slate River 
 Co., 6 Rand. 245 ; II. Rob. Pr. 233, 236. 
 
 Account. — A bill for an account will not lie where there is only a single 
 demand on one side, and payments by way of set-off on the other j to 
 authorize equity to take jurisdiction, there must be mutual demands. II. 
 Rob. Pr. 4; Smith v. Marx, 2 Rand, 449; The Presbyterian Church v. 
 Manson, &o., 4 Rand. 19Y ; Poage v. Wilson, 2 Leigh, 400 ; Hickman v. 
 Stout, 2 Leigh, 6 : in which last case there were mutual accounts running 
 through a series of years, and consisting of numerous items of black- 
 smith's work on the one hand, and on the other hand of various items 
 for articles of country produce, Ac. The court of appeals of Virginia 
 sustained the jurisdiction. 
 
 Sower. — ^In Virginia, equity jurisdiction over the subject of dower well 
 established. II. Rob. Pr. 5. See Heth v. Cooke, 1 Rand. 354. See II. 
 Rob. Pr. 6 — 10 ; Code of Virginia, chap. 110, as to measure of dower 
 and how widow endowed; when widow is entitled to issues and profits; 
 see also Tod v. Baylor, 4 Leigh, 498 ; Braxton v. Coleman, 5 Call, 433 ; 
 Johnson v. Thomas, 2 Paige, 377 ; Swaine v. Ferine, 5 John. Ch, Rep, 
 492 ; Hale v, James, 6 John. Ch. Rep. 258. 
 
 Partition. — See Code of Virginia, chap. 124 ; also " Practical Notes to 
 Decrees and Orders," ^oet. A partition never affects the interests of third 
 persons. See II. Rob. Pr. 14, and cases cited. 
 
 Fraud. — In cases of actual fraud, equity follows the law, and gives 
 relief to the full extent to which a court of law could give relief. Green, 
 J., in Garland v. Rives, 4 Rand. 307; White v. Jones, 4 Call, 253. 
 
PRACTICAL NOTES TO BILLS, &0. 
 
 369 
 
 Case of imbecility of mind, drunlcenness, &c. of one of the contracting 
 parties) in which equity has relieved — Samuel v. Marshall, Ac , 3 Leigh, 
 567. 
 
 lnadec[uacy of price,. i\iou^ not so gross as to be ij3so /acio proof of 
 fraud, coupled with other circumstances, a ground for relief. See Mc- 
 Kinney v. Pinckard's ex'or, 3 Leigh, 149. 
 
 Persons selling expectant interests reliered in equity — McKinney v. 
 Pinckard's ex'or, 3 Leigh, 149; Beverley v. Kennolds, Wythe's Eep. 105. 
 
 [Before the recent Code of Virginia,] it was well settled as a general 
 rulei that a creditor at large, one who had not in some way acquired a 
 right to have satisfaction out of his debtor's property specifically, could 
 not come into a court of equity to impeach any conveyance on the ground 
 of fraud. Green, J., in Tate v. Liggat, Ac, 2 Leigh, 99; Carr, J., in 
 Rhodes v. CousinB, 6 Rand. 190 ; II. Rob. Pr. 18, 19. This general rule 
 was liable to an exception, in case of a debtor who, by removal out of the 
 State or by evading, the process of law, put it out of the power of the 
 creditor to obtain a judgment at law, when a creditor at large might: instu 
 tute a suit in equity to set aside a conveyance made by the debtor. . Ca- 
 beU, J., in Kelso v. Blackburn, 3 Leigh, 3l2. By; the Code of Virginia, 
 chap. 179, sec. 2, a creditor, before obtaining a judgment or decree for his 
 claim, may institute any suit to avoid, a gift, .conveyance, assigumexit or 
 transfer of, or charge upon, the estate of his debtori which he rnight insti- 
 tute after obtaining judgment or decree; and he may in such suit have 
 all the . relief in. respect to said iC&tate^ which he would b& entitled to 
 after obtaining a judgment or decree for the claim which he may be en- 
 titled to recover. 
 
 Case in which the person who was the personal representative of a 
 grantor, and also a creditor of the grantor, was allowed in equity to im- 
 peach the deed of the grantor — Shields, adm'r of Waller, Ac. v. Ander- 
 son, adm'r, Ac, 3 Leigh, 729. 
 
 Aa to fraudulent breach of trust by executor, trustee or guardian, see 
 
 11. Rob. Pr. 22, et seq. ; Hudson and als v. Hudson's adm'r, 5 Munf 180 ; 
 Dandridge, Ac. v. Minge, 4 Rand. 397 ; Knight v. Yarbrough, 4 Rand, 
 566; Sale v. Roy, 2 H. AM. 69 ; Dodson, Ac. v. Simpson, Acv, 2 Rand. 
 294; Jones v. Hobson, 2 Rand. 506 ; Broadns, Ac. v. Rosson, Ac, 3 Leigh, 
 
 12. There is a settled difference between a sale by an executor and one 
 by a trustee. Constructive notice will avoid the trustee's sale, while fraud 
 must be established in the other case. II. Rob. Pr. 23; Graff and als. v. 
 Castleman, Ac, 5 Rand. 195. 
 
 As to purchaser with notice of another's prior equitable right — II. Rob. 
 Pr. 26; Noland v. Cromwell, 4 Munf. 161; Curtis v. Jones's ex'or, 6 
 Munf. 42 ; Bumgardner and als. v. Allen, 6 Munf. 83. 
 
370 
 
 VIRGINIA STATE COURTS. 
 
 r Purchaser for valuable consideration, without notice of another's prior 
 equitable right, protected — Hooe & Harrison t. Pierce's adm'r, 1 Wash. 
 212; Love v. Braxton & Ham, 5 Call, 637 j Taylor v. Stone, 2 Munf. 314; 
 but he must be a complete purchaser without notice; i. e, 'he must have 
 paid the entire purchase money and received a^nveyance, II. Rob. Pr. 
 27, and oases cited. See Mutual Ass. So. v. Stone, 3 Leigh, 235 ; see also 
 1 Munf. 88 and 303. Qucere : If, under present statute of Virginia, Code 
 of Virginia, chap. 119, sec. 1, a conveyance bo made and properly re- 
 corded, expressing on its face that part of the purchase money is yet due, 
 and afterwards the grantee receive notice of prior equitable claim, what 
 the duty of purchaser in such case ? will he be protected in any case, if 
 he pay over the residue unpaid to his grantor ? and whether. In any such 
 case, the conveyance could be vacated by a prior equitable claimant ? 
 
 As to fraudulent misrepresentation made at the time of contract, which 
 causes damage, see II. Rob. Pr. 30; Lang v. Lee, 3 Rand. 410. 
 
 As to owner stajnding_by-and^allDwlng a-purehaK6__to -he made without 
 asserting a claim — II. Rob. Pr. 30 ; Bngle v. Burns, 5 Call, 463 ; Taylor 
 v. Cole, 4 Munf. 351 ; Biekinson v. Davis and als., 2 Xeigh, 401 ; Green 
 T. Price, 1 Munf. 449; Stuart v. Luddington, 1 Rand. 403. In some 
 cases, an owner allowing improvements to be made by another, and being 
 guilty of gross laches in asserting his claim, has been compelled to com- 
 pensate party in poasossion for such improvements. Morris and als. v. 
 Terrill, 2 Rand. 14. See Southall v. McKeand, 1 Wash. 336. Another 
 case in which party in possession was not allowed for improvements, 
 knowing that he had neither legal nor equitable title. There was evi- 
 dence, too, shewing that party in possession knew the defendants to be 
 the persons who had the title. McEim v. Moody, 1 Rand. 58. 
 
 Mistake. — As to cases in which courts of equity will relieve against mis- 
 take, see II. Rob. Pr. 32-39, and the following oases : Mutual Assurance 
 Co. V. Mahon, 5. Call, 619; Hunt v. Rousmanier, 1 Peters, 13; Pinley T. 
 Lynn, 6 Cranch, 238; Argenbright v. Campbell and wife, 2 H. & M. 144. 
 A mistake '* arising from ignorance of law," is not a ground for relief. 
 
 1 Peters, 15; Shotwell v. Murray, 1 John. Ch. Rep. 512; Lyon, Ac. v. 
 Richmond, &e., 2 John. Ch. Rep. 60 ; Storrs, &o. v. Barker, 6 John. Ch. 
 Rep. 166 Contra: Landsdown v, Landsdown, Mosely, 364; Bisell's 
 ex'ors V. Casey, Ac, 3 Desau. 84. Mistake corrected against a surety : 
 Harrison, ex'or of Minge v. Pield, 2 Wash. 136; Moses v. Libenguth, Ac, 
 
 2 Rawle, 428; Sumner v. Powell, 2 Meriv. 30; Wiser v. Blachly, Ac, 1 
 John. Ch. Rep. 607. Surety of public functionary not charged on bond 
 of principal, if bond invalid as a statutory bond and absolutely void in 
 law. Commonwealth v. Jackson's ex'or and als., 1 Leigh, 485. 
 
 Accident. — As to cases in which courts of equity will relieve against 
 accident, see II. Rob, Pr. 39 — 43. When bond or other deed ie loat s 
 
PRACTICAL NOTES TO BILLS, AC. 371 
 
 Tonlman y. Price, 5 Ves. 238 ; Shields v. Commonwealth, 4 Hand. 541 . 
 Harrison, ex'or of Minge y. Field, ex'x, 2 Wash. 140 ; Taliaferro t. Foote, 
 3 Leigh, 68. If bill be simply for discovery and delirery up of deed and 
 no other relief, an affidavit to bill not necessary : Godfrey v. Turner, 1 
 Vern. 247 ; II. Rob. Pr. 40 ; but if for relief generally upon lost deed or 
 bond, Ac, affidavit is necessary. Dormer v. Fortescue, 3 Atk. 132 ; Whit- 
 church V. Golding, 2 P. Wms. 541. When bank notes are lost: Bank of 
 Virginia v. Ward, 6 Munf. 166 ; Farmers' Bank v. Reynolds, 4 Rand. 
 186. Accidenta other than lose of instruments : Madison, Ac. v. Vaughan, 
 5 CaU, 562. 
 
 JV«s«».— See II. Rob. Pr. 50-75; 1 Lomax's Dig. 190-260; II. Ibid, 
 182, 325; Lewin on Trusts, passim; Hill on Trustees, passim. Tate's 
 Ana. Dig. Index, II. vol. p. 217-225. 
 
 Wills. — As to bills to contest or set up wills, see II. Rob. Pr. 75, 77 ; 
 also the following cases: Ford v. Gardner, Ac, 1 H. A M. 72; Paul, Ac. 
 y. Paul, 2 H. A M. 525 ; Nalle v. Fenwick, 4 Rand. 585 ; Vaughan v. 
 Green, 1 Leigh, 287, Where there was no prohat : Banks and als. v- 
 Eootb, 6 Munf. 385 ; Brent v. Dold, Gilm. 211 ; Lemon v. Reynolds, Ac,, 
 5 Munf. 552. See also Givens, Ac. v. Manns,' 6 Munf. 199. 
 
 Disposition of assets of decedents* estates, — See II. Rob. Pr. 77 — 127. 
 What may be recovered by administrator de bonis non : Wernick v. Me- 
 Murdo, 5 Band. 51 ; Heffernan's adm'r v. Grymes's adm'r, Ac, 2 Leigh, 
 512. Bill by creditors, (before Code of Virginia:) White, Ac. v. Bannis- 
 ter's ex'ors, 1 Wash. 166; 1 Wash. 308; 2 Munf. 326; 6 Munf. 29 ; 5 
 Munf. 183; 1 Leigh, 465 ; 6 Rand. 689; 1 Leigh, 465, 487; Gilm. 174; 
 2 Leigh, 70 ; II. Rob. Pr. 86, 87 ; Provisions of Code of Virginia, see 
 chap. 131, sec 4, 5, 6, 7, [also sec. 1, 2 and 3 ;] chap. 130, sec 13, 14, 15, 
 16, 17, 18, 19, 21, 22, 23, 24, [also 25 and 26.] Bill by executor or ad- 
 ministrator against legatees or distributees : Baker v. Baker, Ac, 3 
 Munf. 222; Robertson and als. v. Archer, adm'r, Ac, 5 Rand. 319; Bow- 
 ers, ex'r V. Glendening and als., 4 Munf. 219. See also Kinney's ex'ors 
 V. Harvey, Ac, 2 Leigh, 70; and Trent v. Trent's ex'x, Gilm. 174. 
 What equitable assets^ and how distributed : II. Rob. 80 — 86, 87 ; bill by 
 specialty creditors: Foster, Ac. v. Crenshaw's ex'ors, 3 Munf. 514; Blow 
 v. Maynard, 2 Leigh, 57, 66, (but see Code of Virginia, chap. 187, sec. 8 
 and 9; also chap. 186, sec. 9, 10, as to extent of sale in such case;) bill 
 by simple contract creditors : Trent v. Trent's ex'x and als., Gilm. 188. 
 (See 4 H- A M. 460.) See also Mason's devisees v. Peter's adm'rs, 1 
 Munf. 437; Chamberlayne, Ac v. Temple, 2 Rand. 396; Winston v. 
 Johnson's ex'ors, 2 Munf. 305 ; Roberts's widow and heirs v. Stanton, 2 
 Munf. 129. Qucere: as to effect which provisions of Code of Virginia 
 will exert on the doctrines of real and equitable assets, Ac; bill by lega- 
 tees against executor or executor's representatives, or against executor, 
 
372 VIRGINIA STATE COURTS. 
 
 4c. and his sureties : 3 Bast. 120 ; 6 T. E. 690 ; II. Rob. Pr. 112 ; 4 
 Munf. 289 ; 6 Call, 21 ; 6 Munf. 46 ; 2 Rand. 503 ; 3 Rand. 191. [As to 
 ■ when devises or bequests are void for uncertainty and other questions 
 concerning devises, bequests, wills, See., see II. Rob. Pr. 89 — 111; Jar- 
 man on Wills ; Lomax on Executors] ; bill to surcharge and falsify ac- 
 count of executor or administrator: 2 H. & M. 260 ; 4 H. & M. 253; 4 
 Munf. 369 ; (the books abound with such cases ; see " Accounts of Ex- 
 ecutors and Administrators," in Practical Notes to Decrees and Orders, 
 post y) bill by legatees against co-legatees who have been paid more than 
 the assets justified : II. Rob. Pr. 115 ; 2 John. Ch. Rep. 626 ; 2 P. Wms. 
 447 ; bill by legatees against heirs or devisees : William and Mary Col- 
 lege V. Hodgson and als., 6 Munf. 163. 
 
 Partnership, — Whether a partner can have relief in equity pending 
 the partnership, without praying a dissolution, seems to be questionable : 
 II. Rob. Pr. 128; Harrison v. Armitage, 4 Madd. Ch. Rep. 80. See also 
 Oliver v. Hamilton, 2 Anst. 463 ; Waters v. Taylor, 15 Ves. 10 ; dlassing- 
 ton V. Thwaites, Ac, 1 Sim. and Stu. 124. Suit by a representative Of 
 deceased partner against surviving partner : II. Rob. Pr. 128 ; Case and 
 wife V. Abeel, 1 Paige's Ch. Rep. 393; Higginson, &e. v. Air, Ac, 1 
 Desau. 429. On a bill filed by the representative of deceased partner, an 
 injunction was awarded to restrain the surviving partner from disposing 
 of the stock and receiving the debts : Hartz v. Sohrader, 8 Ves. 317. As 
 to suit by creditor of firm against representative of deceased partner, see 
 II. Rob. Pr. 129; Sale v. Dishman's ex'ors, 3 Leigh, 663; by separate 
 creditor of one partner, who asserts a claim upon partnership effects : II. 
 Bob. Pr. 130; see Niooll v. Mumford, 4 John. Ch. Rep. 622 ; and Moody 
 T. Paynes, .2 John. Ch. Rep. 548. 
 
 SuretysMp.—Il. Rob. Pr. 132—141 ; Croughton v. Duval, 3 Call, 74. 
 The remedies of the surety are impaired if the creditor, after the debt is 
 due, preclude himself from proceeding against the principal for a mo- 
 ment ; and in such case the surety will be discharged. Hill v. Bull, Grilm. 
 149. See also Henry v. Stone, 2 Rand. 464; Samuel v. Howarth, 3 
 Meriv. 272; Rathbone v. Warren, 10 John. Rep. 587; Hampton v. Levy, 
 1 McCord's Ch. Rep. 112; Galphin v. McKinney, Ac, Ibid, 280. A 
 surety is entitled to every remedy which the creditor has against the 
 principal debtor: II. Rob. Pr. 134; McMahou v. Fawoett, Ac, 2 Rand. 
 530 ; Loop v. Summers, 3 Rand. 611. When surety not discharged ; mere 
 negligence of the credit or not snfScient to discharge surety. Bennett t. 
 Maule's adm'x, Grilm 311. See McEenney's ex'ors v. Waller, 1 Leigh, 
 434 ; Norris v. Crummey and als., 2 Rand. 323, where creditor granted 
 indulgence to prinoipaly on a condition which was not performed ; Hunter's 
 adm'rs v. Jett, 4 Rand. 104. Surety's right of substitution : Eppes, Ac. 
 V. Randolph, 2 Call, 126; Tinsley v. Oliver's adm'r, Ac, 6 Munf. 419 ; 
 
PRACTICAL NOTES TO BILLS, AC. 373 
 
 Tompkins v. Mitohell, 2 Rand. 428 ; Hatcher's adm'rs V. Hatcher's ex'ors, 
 -1 Rand. 53; Enders, &e.v. Brune, 4 Rand. 438; Blow t. Maynard, 2 
 Leigh, 56 ; West v. Belches, 5 Munf. 18? ; MoMahon, Ac. v. Fawoett, Ac, 
 2 Rand. 514 : as to bill by surety against principal, for mon«y paid, see 
 Cabell's ex'ors v. Megginson's adm'rs, 6 Munf. 202 ; Mountjoy, Ac. v. 
 Banks's ex'ors, Ac, « Munf, 387 : bill by surety against co-surety — Mc- 
 Cormaok's adm'r t. Obannon's ex'or and devisees, 3 Munf. 484. See 
 Farmers Bank t. Vanmoter, i Rand. 553. 
 
 Aeeignment. — In Winn v. Bowles, 6 Munf. 23, it was decided that the 
 act in 1 B. C. 1819, p. 484, sec 5, giving the assignee of a bond the right 
 to sue at law upon the assignment, gave a remedy merely cumulative 
 and additional, to the pre-existing right of assignee to sue in equity. 
 Subsequently, by act, March 5, 1821, assignees were in certain cases pro- 
 hibited from suing in equity, " unless it shall appear that the plaintiff had 
 not an adequate remedy at law." The present statute is as follows : "A 
 court of equity shall not have jurisdiction of a suit upon u. bond, note or 
 writing, by an assignee or holder thereof, unless it appear that the plain- 
 tiff had not an adequate remedy thereon at law." Code of Virginia, 
 chap. 144, sec. 16. Assignee takes subject to equity of obligor. Newton 
 V. Rose, 2 Wash. 233 ; Pickett v. Morris, 2 Wash. 255. If assignee be 
 without notice, the equity must be clearly established by proof. Mayo v. 
 Giles's adm'r, 1 Munf. 533. But the equity of a third person (not of the 
 original obligor,) cannot be asserted 'against the assignee, unless he has 
 notice of it expressly or constructively. II. Rob. Pr. 141; 2 John. Ch. 
 Kep. 441; 2 John. Ch. Rep. 479; Moore, Ac. v. Holoombe, Ac, 3 Leigh, 
 597. Special circumstances in favor of assignee may modify general rule 
 that assignee takes subject to the equity of the obligor. Buokner, Ac v. 
 Smith, Ac, 1 Wash. 296 ; Hoomes, ex'or of Elliott v. Smock, 1 Wash. 389. 
 
 Set-off. — When there is no set-off at law, there must be special oircum- 
 stanccs of equity to authorize the interference of a court of equity. Har- 
 vey V. Wood, 5 Madd. Ch. Rep, 279 ; 2 Paige, 402 ; II, Bob. Pr. 141. A 
 claim for unliquidated damages is not one of these special circumstances 
 justifying interference of a court of equity. Webster v. Couch, 6 Rand. 
 519 ; Cabell's ex'ors v. Roberts's adm'rs, 6 Rand. 580. Contra, Dunbar 
 V. Buck and others, 6 Munf. 34. See Gilliat v. Lynch, 2 Leigh, 506. 
 In equity, as at law, a joint debt cannot be set off against a separate debt, 
 II. Rob. Pr, 142; Green, J, in Gilliat v. Lynoh, 2 Leigh, 504; Poindex- 
 ter V. Waddy, 6 Munf. 421. As to set-off against judgment obtained by 
 executor, see Dangerfleld v. Rootes, 1 Munf. 529 ; White, Ac v. Bannis- 
 ter's ex'ors, 1 Wash. 166. See also Maokie's ex'or v. Maokie's devisees, 
 6 Munf. 265. When insolvency authorizes a court of equity to interfere 
 in matter of set-off— II. Rob. Pr. 144; Simson v. Hart, 14 John. Rep. 63; 
 32 
 
374 VIBGINIA STATE COTJETS. 
 
 Lindsay, Ac t. Jackson, ic, 2 Paige, 681. See Ford's adm'r v. Thorn- 
 ton, 3 Leigh, 695. 
 
 Suits for freedom. — Code of Virginia, chap. 106. Equity cannot en- 
 force a promise by a master to his slave, that he shall be iree on paying 
 a certain sum of money ; and though the slave should prove the promise 
 of his master and the payment of the money, ho can have no redress. 
 Sawney v. Carter, 6 Rand. 173; Stevenson v. Singleton, 1 Leigh, 72. See 
 Talbert, &c. v. Jenny, Ac, 6 Rand. 162; also Patty v. Colin, 1 H. A M. 
 519 ; Dunn v. Amey and als,, 1 Leigh, 465. It is the settled law in Vir- 
 ginia that a person held in slavery, no matter how long and unjustly, 
 cannot recover damages in the form of profits or otherwise, for his illegal 
 detention in slavery. Cabell, J., in Paup's adm'r v. Mingo, Ac. 4 Leigh, 
 180; Peter and als. v. Hargrave and als., 5 Grat. 12. See further, as to 
 suits for freedom, Dempsey v. Lawrence, Gilm. 333 ; Hudgins v. Wrights, 
 1 H. A M. 134. 
 
 Suaband and Wife.— See II. Bob. Pr. 147-164 ; Code of Virginia, pp. 
 502, 513, 614; Clancy on Married Women ; Roper Hus. and Wife; Mo- 
 Queen on Husband and Wife; Tucker's Commentaries; Spcnce's Eq. 
 Jurisdiction ; Story's Equity Jurisprudence. When court of chancery will 
 make provision for wife out of her property ; see Browning v. Headley, 2 
 Rob. Rep. 340 ;* also the following cases : Ex parte Beresford, 1 Desau. 
 263 ; ^ John. Ch. Eep. 206 ; 6 John. Ch. Rep. 33 ; 3 Cowen, 690 ; 1 PaigC; 
 166,463,620; 2 Paige, 303; protection of wife's property from marital 
 rights, by marriage settlement ; Eaulkner v. Faulkner's ex'ors. 3 Leigh, 
 255. When husband and wife sue in right of wife, for title to tract of 
 land, conveyance should be decreed to be made to wife only. Argen- 
 bright V. Campbell and wife, 3 H. A M. 144. Where the wife is a joint 
 plaintiff with her husband, she is not bound by any proceedings or ad- 
 missions in the cause by the husband, if such proceedings or admissions 
 affect her inheritance. A bill by husband and wife is regarded as the 
 husband's suit only, and the wife is joined for conformity, to be bound 
 only so far as in justice she ought to be bound. Dandridge, Ac. v. Minge, 
 4 Rand. 397. In auits for divorce: See Code of Virginia, chap. 109, 
 
 * In this case, the doctrine of the English Chancery, that where an 
 absolute equitable interest is given to the wife, the court will not permit 
 the husband to recover it without making a provision for the wife, and 
 that the husband's assignee, whether general or particular, takes his inte- 
 rest subject to the same equity, was recognized as binding upon the courts 
 of this State ; and the doctrine carried farther than it was carried in Be- 
 resford, Ac. V. Hobson, Ac, 1 Madd. C. R. 199, by Sir Thomas Plumer, who 
 considered that the court in no case had given the whole to the wife ; not 
 even "where the husband has left his wife and gone abroad." 
 
PRACTICAL NOTES TO BILLS, AC. 375 
 
 pastim. As to alimony, see further, Puroell v. Puroell, 4 H. 4 M. 607 ; 
 Almond v. Almond, i Kand. 667 ; Denton v. Denton, 1 John. Ch. Rep. 
 364. 
 
 When <^ife sues alone, save in special cases, she sues by a next friend: 
 1 Dan. Ch. Pr. 15 1 ; Story's Bq. PI. sec. 63. Difference between the next 
 friend of a married woman and the next friend of an infant : 1 Dan. Ch. . 
 Pr. 152. 
 
 Infanta. — See IT. Rob. Pr. 159; Code of Virginia, pp. 523, 524, 635, 
 648, 676, 680; Tucker's Commentaries ; Macphersou on Infants; power of 
 court of chancery to interfere as regards the custody of child: Wellesley 
 V. Duke of Beaufort, 3 Cond. Eng. Ch. Rep. 1. See Code of Virginia, 
 chap. 127, as to guardians and wards. As to legacy to child: is a father 
 as a nafuraZ guardian, mere^^^ entitled to receive it? See Kent, Chan- 
 cellor, in Senet v. Tallmadge, 1 John. Ch. Rep. 3 ; also Morell, Ac. v. 
 Dickey, id. 165 ; Williams, Jto. v. Storrs, Ac, 6 John. Ch. Kep. 353 ; but 
 sed Code of Virginia, chap. 127, sec. 7. There can We no doubt that a 
 father appointed by a court of competent authority as guardian of his 
 child, is entitled to receive it : this has never been questioned. II. Rob. 
 Pr. 155. As to power of non-resident guardian : see I. Rob. Pr. edit. 
 1854^_g. 49::yxand^as_to^trans£er_^propertiJ)e_longing to wards from 
 one State to another: see I. Rob. Pr. edit. 1854, p. 51; Code of Vir- 
 ginia, chap. 129 ; Sess. Acts 1852, p. 79, ch. 96. Sale of lands of infant 
 coparcener: see Code of Virginia, chap. 124; when by county or corpo- 
 ration court: Code of Virginia, chap. 124, sec. 2; lease and sale of lands 
 of infants in other oases, [by Circuit courts of Virginia,] see Code of Vir- 
 ginia, chap. 128, and chap. 127, sec. 3 ; also Introduction to this work, 
 pp. X, xi. Suit by ward against guardian and sureties; after the guar- 
 dianship is ended, equity will take cognizance of a suit for settlement of 
 guardianship account and balance thereon: II. Rob. Pr. 168; and when 
 the state of the case is such as to make it necessary, equity will inter- 
 fere during the infancy of the ward : II. Rob. Pr. 168 ; Monell, Ac. v. 
 Monell, Ac, 6 John. Ch. Rep. 297. As to deed from ward to guardian : 
 see II. Rob. Pr, 158 ; Waller v. Armstead's adm'rs, 2 Leigh, 11. 
 
 Infants sue by a next friend; they defend by a guardian ad litem. 
 See 1 Dan. Ch. Pr.; Story's Eq. Pleading. 
 
 Idiots and lunatics.— See Code of Virginia, chap. 16, sec. 17; also chap. 
 85, sec. 46, 47, 48. Petition for sale or lease of lands belonging to : Code of 
 Virginia, chap. 85, sec. 46, 47, 48 ; bill for sale or lease of lands in which 
 idiot or lunatic is interested with others, Ac: see Code of Virginia, 
 chap. 128; release of wife's dower right in case of sale: chap. 128, sec. 
 9 ; petition by husband of insane wife wishing to sell real estate to have 
 right of dower released : Code of Virginia, chap. 128, sec. 11. Transfer 
 of property belonging to " insane persons" from one State to- another : 
 
876 VIRGINIA STATE COUETS. 
 
 I. Rob. Pr. edit. 1864, p. 51; Code of Virginia, chap. 129; also Sess. Acts 
 1852, p. 79, chap. 96. A committee haying roluntarily accepted the 
 office has not a right to be discharged merely because the execution of 
 the trust may have become unpleasant. He must show some ^ood ex- 
 cuse for declining. Lytle's case, 3 Paige, 251, cited in II. Rob. Pr. 162. 
 
 Suite hy or against commonwealthf for lands forfeited or escheated. — 
 Bee Hubbard v. Goodwin, 3 Leigh, 492 ; Commonwealth t. Martin's 
 ex'rs, 5 Munf. 117; Code of Virginia, chap. 113, sec. 31,32,33; also 
 chap. 114. Petition to quiet title to forfeited or escheated lands : Code of 
 Virginia, chap. 114, sec. 5-9. 
 
 Proceedings to repeal grants of commonwealth, — See Code of Virginia, 
 chap. 112, sec. 59 ; also, chap. 112, passim. 
 
 Partition. — See Code of Virginia, chap. 124, 
 
 To settle houndaries. — In Virginia, the Court of Appeals has often 
 recognized the general rule that equity does not interpose in questions 
 involving the title to real property. The jurisdiction respecting the 
 boundaries of lands, it has been declared, must be restricted to those 
 cases in which some equity is raised by the acts of the parties; and this 
 equity must be an equity of the plaintiif against the adversary claimants 
 
 of the land. Ho cannot giTO tlio court juriadxotion Tt>y ootting fortK in 
 
 his bill an equity against other persons. Stuart's heirs v. Coalter, 4 
 Rand. 74; II. Rob. Pr. 165. 
 
 Bill quia timet — See Randolph's adm'z v. Kinney, 3 Rand- 397 ; see 
 Fowler and wife v. Saunders, 4 Call, 361, and Randolph v. Randolph, &a. 
 2 Leigh, 640. 
 
 Bill of peace — Courts of equity, in order to put an end to oppression 
 and to prevent a multiplicity of suits, take cognizance, by means of a bill 
 of peace, of questions which involve legal principles only, and are triable 
 in the common law courts. There are only two cases in which this is 
 done : the first is where there have been repeated trials and a satisfactory 
 determination at law, on the point of right; the second is where one 
 general legul right is claimed against several distinct persons, and where 
 each suit would determine only the particular right in question between 
 the plaintiff and the defendant in that suit. Spencer, J., in Trustees of 
 Huntingdon v. NiooU, 3 John. Rep. 595. See Randolph's adm'z v. Kin- 
 ney, Ac, 3 Rand. 395 ; Baird v. Bland, &o., 3 Munf. 570 ; Ambler and 
 als. V. Warwick & Co., 1 Leigh, 195. Alexander, &e. v. Pendleton, 8 
 Cranch, 462. See also Linney's adm'r v. Dare's adm'r, Ac, 2 Leigh, 588. 
 
 Attachmrcnts in equity, in Virginia. — See Session Acts of Virginia, 1852, 
 p. 78, amending and altering 11th section of chap. 151, Code of Virginia; 
 see also sections 23, 24, 25, 26, 27 and 28 of chap. 151, Code of Virginia. 
 For form of endorsement by clerk on summons in such case, see poet. For 
 
PRACTICAL NOTES TO BILLS, AC. 377 
 
 other forms under attachment law, see Tate's American Form Book, edit. 
 1854, p. ipr, et'seq. 
 
 Bail in equity, in Virginia. — See Sess. Acts of Virginia, 1851, p. 36, 
 and Sess. Acts, 1852, p. 77. For forms under bail law ot Virginia, see 
 Tate's American Form Book, edit. 1854, pp. 150-166. 
 
 FORM OF ENGLISH BILL. 
 
 Complete form of a bill exMhited in the Unglish Courts, 
 against an administrator, for an account of an intestate's 
 effects, hy Ids next of hin. 
 
 In Chancery. 
 
 To the Eight Honorable Charles Christopher Baron Cotten- 
 ham, of Gottenham, in the county of Cambridge, Lord High 
 Chancellor of Great Britain. (a) 
 
 Humbly complaining, shew unto your Lordship your orator 
 and oratrix — That \the intestate,'] late of, &c., deceased, was 
 
 at the time of his death possessed of the Hotel, in, &c., 
 
 for a residue of a term of years therein, then to come and 
 unexpired, and also of divers quantities of household furni- 
 ture, linen, plate, china, stock in trade, wines, and liquors, 
 and that he was also possessed of and entitled to other per- 
 sonal property of a considerable amount ; and your orator and 
 oratriz shew, that sometime before the month of February 
 last, the said [the intestate] died intestate and without issue, 
 and he left [the administrator], of, &c., and your oratfix, 
 [ ], the wife of your orator, his brother and sister, and 
 
 only next of kin, him surviving;- — and your orator and ora- 
 trix further shew, that sometime after the death of the said 
 [the intestate], it was agreed between~your orator [ ] 
 
 and the said [the administrator], that administration of the 
 personal estate of the said intestate should be granted to the 
 said [the administrator], upon the terms expressed in the 
 memorandum herein after set forth, and thereupon a memo- 
 randum was signed by your orator [ ] and the said 
 [the administrator], and the same was in the words and fig- 
 ures, or to the purport or effect following, that is^to say : 
 Memorandum of agreement made and entered into the 6th 
 day of February, 1816, between [the administrator], of, &c., 
 of the one part, and [the plaintiff] of the other part; 
 
 (a) For forms of address in other courts, see Willis's Equity Precedents, 
 p. 1. Law Library, Fifth Series, vol. 31. 
 
378 FORM OF ENttLISH BILL. 
 
 whereas [the intestate], late of, &c., hath lately departed this 
 
 life intestate, leaving the said [the ad^ninistrator'], and 
 
 the wife of the said [the plaintiff], his only next of kin ; and 
 it hath been agreed between the said [the administrator], and 
 [the plaintiff], that the said [the administrator], should alone 
 administer to the estate and effects of the said [the intestate] ; 
 and whereas, it hath been also agreed, that the goods, chat- 
 tels and effects of the said [the intestate]^ should be sold by 
 auction for the joint benefit and advantage of the said [the 
 administrator] and [the plaintiff]. Now it is hereby agreed 
 and declared by and between the said parties hereto, that the 
 several goods, chattels and effects of and belonging to the 
 said [the intestate], shall be forthwith sold and disposed of by 
 
 auction, by Mr. , of street, auctioneer, and that the 
 
 proceeds arising from puch sale shall be paid to the said Mr. 
 
 , to the joint account of the said [the administrator] and 
 
 [the plaintiff,] for their equal benefit and advantage. As 
 witness our hands, the day and year first above written. And 
 your orator and oratrix shew, that before the said memoran- 
 dum was signed, the said [the administrator,] had applied to 
 the Ecclesiastical Court for administration of the effects of 
 the said intestate, and that your orator and oratrix had caused 
 a caveat to be entered against his obtaining such administra- 
 tion ; but that after the said memorandum had been signed, 
 your orator and oratrix, in pursuance of the said agreement, 
 withdrew the said caveat, and thereupon administration of the 
 estate and effects of the said [the intestate] deceased, was 
 granted by the proper Ecclesiastical Court to the said [the 
 administrator,] and by virtue thereof the said [the adminis- 
 trator] possessed himself of as much of the personal estate 
 and effects of the said intestate as he could get into his power, 
 and he hath caused the term of years, which the said intes- 
 tate had in the said Hotel, together with all the house- 
 hold furniture, linen, stock in trade, plate, china, wines and 
 liquors belonging to the said intestate to be sold; and the 
 proceeds arising from the said sale were very large, and the 
 same have been received by the said [the administrator], and 
 the same .have not been paid to the said [the auctioneer,] to 
 the joint account of the said [the administrator] and your 
 orator, in pursuance of the said agreement ; but the said [the 
 administrator] hath thereout paid the debts and funeral and 
 administration expenses of the said intestate, and he hath re- 
 tained the residue of the said proceeds in his own hands, and 
 applied the same to his own use, and he hath collected and 
 
FORM 01? ENGLISB BILL. 379 
 
 received divers debts due to the said intestate, and he intends 
 .to get in the other outstanding estate and effects of the said 
 intestate, and to apply the same to. his own use. And your 
 orator and oratrix have frequently, by the;nselves and their 
 agents, applied to the said [the administrator,'] requesting him 
 to account for the proceeds of the said sale, and for the 
 other personal estate and effects of the said 4ntestate j^and 
 your orator and oratrix well hoped that the said [the adminis- 
 trator'] would have complied with such requests, as in equity 
 he ought to have done. 
 
 But now, so it is, may it please your Lordship, the said 
 [the administrator] absolutely refuses to comply with such 
 requests, sometimes pretending that the said intestate hath 
 left no personal estate or effects ; whereas your orator and ora- 
 trix charge the contrary thereof to be true, and that the 
 personal estate, whereof the said intestate died possessed, 
 was of very large value, and more than sufficient to answer 
 and satisfy all his just debts, and funeral and testamentary 
 expenses, and so it will appear if the said [the administra- 
 tor] will set forth an account of the said estate and effects, 
 and of what the same consisted, and the value thereof, and 
 ho'^ the same have been sold, paid, applied, and disposed 
 of ; but that he refuses to do : And your orator further 
 charges, that the said defendant now hath, or lately had in 
 his possession or power, divers deeds, documents, books, ac- 
 counts, receipts, vouchers and papers, relating to matters 
 aforesaid, and that if the same were produced, the truth of 
 the matters aforesaid would appear therefrom ; but the said 
 defendant refuses to pro^ce the same. 
 
 To the end, therefore, that the said defendant may, if he 
 can, shew why your orator should not have the relief hereby 
 prayed, and may, upon his corporal oath and according to 
 the best and utmost of his knowledge, remembrance, inform- 
 ation and belief, full, true, direct and perfect answer make to 
 such of the several interrogatories here under written as re- 
 quired to answer ; that is to say : Whether, &c. (Interrogate 
 to the stating and charging part, down to the charge as to the 
 possession of documents, and add the common inquiry as to the 
 particulars of the intestate's leasehold and personal estate; and 
 interrogate to the charge as to the possession of documents.) 
 
 And that the said defendant may answer the premises ; and 
 that an account may be taken by and under the direction of 
 this honorable court, of all the personal estate and effects of 
 the said intestate, which have been received by the said de- 
 
380 FORM OP ENGLISH BILL. 
 
 fendant, or by any person or persons by his order, or for his 
 use, or which without his default might have been so re- 
 ceived ; and that the said defendant may be restrained by the 
 injunction of this honorable court from collecting and re- 
 ceiving any part of the personal estate and effects of the said 
 intestate, and that a proper person may be appointed to re- 
 ceive and collect the same ; and that the personal estate and 
 effects of the said intestate may be applied in a due course 
 of administration; and that the clear surplus thereof may be 
 ascertained, and that one moiety thereof may be paid to your 
 orator and oratrix ; and that your orator and oratrix may 
 have such further and other relief in the premises as the na- 
 ture of their case may require and to your Lordship shall 
 seem meet. 
 
 May it please your Lordship, &c. 
 
 (Pray subpoena and injunction against the administrator.) 
 
 Note. — The defendant is required to answer all the inter- 
 rogatories. 
 
Forms of Demurrers, Pleas, Answers, Disclaimers, &c. 
 
 DEMrRRERS. 
 
 See sections 97 — 110 of preceding volume. 
 
 [In the following forms, (') denotes introduetory part of demurrer; (2) 
 the substance; and (3) the conclusion.] 
 
 GENERAL FORMULA OE DEMURRER TO THE WHOLE BILL. 
 
 (*) The demurrer of A. of county, (or of B. an infant 
 
 under the age of twenty-one years, by C.of county, his 
 
 guardian ; or of D.- an idiot or lunatic, by E. of county, 
 
 his committee or guardian ; or of B. and F. his wife, of 
 county ; or of Gr. the wife of p., who has duly obtained leave 
 to defend separately from her husband,) to the bill of com- 
 plaint of M. against the defendant (and others), exhibited in 
 the Court of . 
 
 This defendant by protestation not confessing or acknowledg- 
 ing all, or any of the matters and things in the said bill of com- 
 plaint contained, to be true in manner and form, as the same 
 are therein set forth, [*] doth demur thereto, and for causes 
 of demurrer show : (f) [Here state substance of demurrer, as 
 for instance : " that if the matters stated in the said bill do 
 give the plaintiff any cause of complaint against this defend- 
 ant, the same are triable and determinable at law, and ought 
 not to be inquired into by this Court."] 
 Conclusion. 
 
 (*) Wherefore, and for divers other errors and imperfec- 
 tions, this defendant demands the judgment of this Court, 
 whether he shall be compelled to make any further or other 
 answer to the said bill, or any of the matters and things 
 therein contained ; and prays to be hence dismissed with his 
 reasonable costs in this behalf sustained. 
 
 \_Signatti,re.'\ 
 
 FORMULA OP DEMURRER TO PARTS OP BILL, WITH ANSWER. 
 
 f ) Follow pi'eceding form as far as asterisk [*], then pro- 
 ceed : (^) As to so much and to such parts of the -said bill, 
 
382 
 
 DBMUKKEES. 
 
 as seeks that this defendant may answer and set forth whether, 
 &c., &o., (here set out particularly all the interrogatories 
 against which the demurrer is pointed ;) and prays, &c., (here 
 state clearly the prayer which is objected to;) doth demur, 
 and for cause of demurrer shows, (here set out the causes 
 of demurrer as in the preceding form.) 
 
 (') Wherefore, and for other good causes of demurrer in 
 said bill contained, this defendant prays judgment, whether 
 he shall be compelled to make any further or other answer to 
 such part of the said bill as is so demurred to as aforesaid. 
 
 And as to the residue of said bill, the said defendant, not 
 waiving his said demurrer, but relying thereon, for answer to 
 the residue of said bill ; (here proceed as in the ordinary 
 form of answering, faking care to answer no part of the hill 
 which is covered hy the demurrer I) 
 
 General demurrer for want of equity. 
 [See form in section 104 of preceding volume.] 
 
 Special demurrer* to so much of a hill as sought a discovery 
 of title deeds for want of proper affidavit. 
 
 " [See form in section 105 of preceding volume.] 
 
 [Note. This form may be readily adapted to any case, in which, to 
 entitle a party to discovery, he should first make an affidavit of his ina- 
 bility to procure elsewhere the documents sought as evidence.] 
 
 Demurrer for multifariousness. 
 
 (*) The demurrer of, &c. (as in general formula.) 
 (") That it appears by the said bill that the same is ex- 
 hibited against this defendant and J. H., 'J. C, T. S. and 
 W. T. for several and distinct matters and causes, in many 
 whereof, as appears by the said bill, this defendant is not in 
 any manner interested or concerned, by reason of which dis- 
 tinct matters the said plaintiff's said bill is drawn out to a 
 considerable length, and this defendant is compelled to take a 
 copy of the whole thereof, and by joining distinct matters 
 together which do not depend on each other in the said bill, 
 the pleadings, orders and proceedings will, in the progress of 
 
 * See sec. 103 of preceding volume, as to oases when special demurrer 
 ia necessary. 
 
DEMUUREKS. 888 
 
 the said suit, be intricate and prolix, and tHs defendant put 
 to unnecessary cllarges in taking copies of the same, although 
 several parts thereof no way relate to or concern him. 
 (') Wherefore, &c. (conclude as in general formula.) 
 
 Demurrer to a bill of interpleader, for want of affidavit that 
 plaintiff does not collude with any of the defendants. 
 
 (*) The demurrer of, &c., [as in general formula.] 
 (") That although the said complainant's said bill is upon 
 the face thereof a bill of interpleader, yet the said complain- 
 ant hath not annexed to his said bill an affidavit that he 
 doth not collude concerning such matters with any of the 
 defendants thereto, which affidavit ought, according to the 
 rules of this Court, as this defendant is advised, -^to have been 
 made by the said complainant, and annexed to the said bill : 
 And for further cause of demurrer, this defendant further 
 showeth that the said bill does not contain sufficient matter 
 of equity whereupon this Court can ground any decree in 
 favor of the said complainant, or give the said complainant 
 any relief against this defendant. 
 
 (*) Wherefore, &c. [conclude as in general formula.] 
 
 Demurrer to hill on the ground that the disclosure sought ivill 
 subject defendant to pains and penalties, dsc. 
 
 (*) The demurrer of, &c. (as in general formula^ to asterisk, 
 then proceed :) As to so much and such part of the said bill 
 as seeks to have discovery from this defendant of any, &o. 
 (here set forth matter in bill, which, if answered, will sub- 
 ject defendant to pains, &c.,) doth demur, and for cause of 
 demurrer showeth that by the known and settled rules of this 
 court, no person ought to be compelled to set forth or dis- 
 cover any matter or thing which doth or may subject him to 
 any pains, penalties or forfeitures whatsoever ; and therefore, 
 as the said discovery sought by the said complainant's said 
 bill doth and may, by the known law of this State, subject 
 and make this defendant liable to several pains, penalties and 
 forfeitures, (^) this defendant doth demur in law ' to so much 
 and such parts of the said bill as pray the aforesaid discovery, 
 and humbly demands |the judgment of this honorable court, 
 whether he ought to be compelled to make any further or 
 other answer than as aforesaid, to such parts of the said bill 
 as he hath so demurred unto. (If answer as to the residue 
 of bill, proceed as in formula, p. 382.) 
 
384 PLEAS. 
 
 Demurrer to a bill of review, on the ground that there are no 
 errors in the decree. 
 
 (f) The demurrer of, &c. (as in general formula.) 
 
 (") That there are no errors in the record and premises, 
 
 and in the decree of the day of , in the said bill of 
 
 ■ review and supplemental bill mentioned, nor is there any 
 sufficient matter alleged in the said bill of review and supple- 
 mental bill to entitle the said complainant to reverse the said 
 decree ;^nd for divers other errors and defects appearing in 
 the saicnsill of review and supplemental bill, these defendants 
 do demur in law thereto. 
 
 (') Wherefore, &c. (as in general formula, to conclusion.) 
 
 PLEAS. 
 
 See sections 120-131 of preceding volume ; also p. 401, post. 
 
 [In the following forms, the figure (i) denotes the commencement of 
 plea, (^) the substance of plea, and (') the conclusion of plea :] 
 
 GBNEKAL FORMULA OF PLEAS. 
 
 (') The plea of A. B. a defendant to the bill of complaint 
 exhibited against him by X. Y. in the Court of .* 
 
 This defendant by protestation, not confessing or acknow- 
 ledging all or any part of the matters and things in said bill 
 of complaint contained to be true in manner and form as the 
 same are therein set forth, for plea nevertheless to the said 
 bill, doth plead and aver, {f) that, &c., (here state substance 
 of plea, as in future forms.) (f) Wherefore, this defendant 
 prays judgment of this honorable court, whether he shall be 
 compelled to make any further or other answer to the said 
 bill, and prays to be hence dismissed with his reasonable costs 
 and charges in this behalf most wrongfully sustained. 
 
 G. M., p. q. 
 
 The foregoing formula may be used in every description of 
 pleas, whether in abatement or in bar. The begiiiniBg and 
 the conclusion in all pleas are alike. The following are forms 
 
 4k 
 
 * See section 120, preceding volume, for forms of pleas when two or 
 more defendants file the same plea, when man and wife plead the same 
 plea, and when plea and answer united. 
 
PLEAS.-. 3B5- 
 
 of the substantial parts of pleas which should be used in con- 
 nection with this formula : 
 
 Pleas in abatement. 
 
 1. Infancy of complainant: (Commence as in general 
 formula, then proceed : (^) That the said complainant, at the 
 time of filing his said bill, was and now is an infant under 
 
 the age of twenty-one years, that is to say, of the age of - 
 or thereabout. (Conclude as in general formula.) 
 
 2. Coverture of comj)lainant.^r—(XiommeTice as in general 
 formula, then proceed :) (f) That the said complainant, at the 
 time of filing her said bill, was and now. is under coverture of 
 one B., her husband, who is still living, and in every respect 
 capable, if necessary, of instituting a suit in equity in her 
 behalf. (Conclude as in general formula.) 
 
 3. Coverture of defendant. — (Commence as in general 
 formula, then proceed :) (") That this defendant, at the time 
 of filing the aforesaid bill, was and now is under coverture of 
 one B., her husband, who is still living and capable of defend- 
 ing this suit in her behalf. (Conclude as in general formula.) 
 
 Pleas in bar. 
 
 1. Plea of statute of lim,itations. — (Commence as in gen- 
 eral formula, then proceed :) (f) That if the complainant ever 
 had any cause of action or suit against this defendant, for or 
 concerning any of the matters in the said bill mentioned, 
 which this defendant doth in no sort admit, such cause of 
 
 action or suit did accrue or arise above years before the 
 
 filing of the said bill, or before serving or suing out process 
 against this defendant, to appear to and answer said bill ; nor 
 
 did this defendant, at any time within years next before 
 
 the said bill was exhibited, or process served on, or issued 
 out against this defendant to appear to and answer the same, 
 promise or agree to come to any account for, or to make satis- 
 faction, or to pay any. sum or sums of money, for or by reason 
 of the said matters charged in said bill. (Conclude as in 
 general formula.) 
 
 2. Plea of statute ^j^ frauds to a parol agreement as to 
 bill seeking discovery or relief as to the agreement. — (Com- 
 mence as in general formula.) (f) That neither this defend- 
 ant nor any person by him authorized, did ever sign any 
 contract or agreement in writing, for making and executing 
 
 33 
 
386 PLEAS. 
 
 any sale or conveyance to the complainant, of the land and 
 premises in the bill mentioned and described, or any interest 
 thereof, or to any such effect, or any memorandum or note or 
 writing of any such agreement. (') (Conclude as in general 
 formula.) 
 
 3. Plea of former suit depending.— (Qovava&ace as in gen- 
 eral formula.) (f) That heretofore and before the said com- 
 plainant exhibited his present bill in this court, to-wit : on 
 
 the day of , the said complainant filed his bill of 
 
 complaint in this court, against this defendant, and also 
 
 against , for the same matters and to the same effect 
 
 and for the like relief and purpose as against this defendant, 
 as the said complainant prays by his present bill ; to which 
 bill this defendant answered, and other proceedings were 
 thereupon had ; and the said former bill and proceedings now 
 remain depending in this court, and the said cause is yet 
 undetermined and undismissed. (') (Conclude as in general 
 formula.) 
 
 FORM OF ENGIilSH PLEA. — [New. Gh. Prac. vol. II., p. 134.] 
 
 4. Plea of purchaser for a valuable consideration, without 
 notice. — The plea of the defendant F. D. to part, and his an- 
 swer to the residue of the bill of complaint of J. V. E., of 
 B., complainant. 
 
 The said defendant, by protestation, not confessing or ac- 
 knowledging all or any of the matters or things in the said 
 complainant's said bill of complaint contained to be true, in 
 such manner as the same are therein set forth, as to so much 
 of the said bill as seeks any conveyance or redemption of the 
 manors, &c. in the said bill mentioned, or the rents and ser- 
 vices belonging to and parcel of the said manor, or 1o compel 
 this defendant to set forth any account of the same, or which 
 any way seeks to impeach this defendant's title to the prem- 
 isesy or any part thereof, or to compel this defendant to pay 
 any rent, or arrear of rent, to the said complainants, for or 
 upon account thereof, or which seeks to have copy or counter- 
 part, or the perusal and inspection of any grants, deeds, con- 
 veyances, leases, writings, or papers relating to, or which 
 seeks to compel the said defendant to set forth, in haec verba 
 any grants or conveyances of the premises made by the said 
 complainant's mother, or any of his ancestors, or which seeks 
 any discovery of the leases granted by this defendant, or those 
 under whom he claims, or of any part or parcel thereof, or 
 any other matter inquired after, or which seeks any relief 
 against this defendant, touching the premises, this defendant 
 
FOKM OF ENGLISH PLEA. 387 
 
 doth plead in bar, and for plea thereunto saith, that A. B. 
 was, at the time of the deed and fine herein after mentioned, 
 in possession of the lands and hereditaments herein after men- 
 tioned, or in the receipt of the rents and profits thereof, and 
 [here was set forth a deed of conveyance of the 4th and 5th 
 of August, for a valuable consideration, the sum expressed, 
 with the covenants for levying a fine, and farther assurance,] 
 as by the said indentures, when the same shall be produced to 
 this honorable court, (reference being thereunto had,) will 
 appear. And this defendant, for plea, farther saith, that the 
 said A. B., for the better assuring and conveying the said 
 premises to the said T. N. and his heirs, did, in term, 
 
 duly levy and acknowledge, before the then justices of his 
 then Majesty's Court of C. P., at W., unto the said T. N. 
 and his heirs, one fine, &c., with proclamations thereupon had, 
 acjording to the form of the statute in that behalf made and 
 provided, of the said manors and premises, by the names of 
 , as by the records of the said court may appear, 
 as this defendant verily believes ; by virtue of which inden- 
 tures and fine the said T. N., as this defendant humbly in- 
 sists, became and was an absolute purchaser of the said manors 
 and premises, for a full and valuable consideration, really 
 paid, as this defendant believes. And this defendant, for 
 plea, farther saith, that he believes the said T. N. did ac- 
 cordingly, soon after the making the said indentures of lease 
 and release, enter upon and take possession of the said manors 
 and premises, and that shortly after he made several leases of 
 several parts of the said premises, for divers terms of years, 
 some of which this defendant believes are not yet expired, 
 [then state the assignment thereof to F. D. upon mortgage, 
 and his purchasing the equity of redemption afterwards,] as 
 in and by the said several indentures and endorsements may 
 more fully appear; but, for greater certainty, touching the 
 said indentures and deeds, so by him pleaded as aforesaid, 
 this defendant craves leave to refer thereto, when the same 
 shall be produced to this honorable court. And this defend- 
 ant insists that, by virtue of the said last-mentioned inden- 
 tures and endorsements, this defendant became well entitled, 
 as this defendant humbly insists, to the said manors and 
 premises, during the, respective terms of years before-men- 
 tioned ; and that the said defendant, and his said trustee E. 
 F., by virtue of the said conveyances and assurances to him 
 executed by the said , became entitled to the rever- 
 
 sion and inheritance thereof, discharged of the equity of re- 
 
388 FORM OF ENGLISH PLEA. 
 
 demption which belonged to the said , or his assigns, 
 
 or his heirs at law. And the said defendant doth insist that 
 the said , and those claiming title to the said prem- 
 
 'ises, by, from, or under him, have quietly enjoyed and taken 
 the rents, issues and profits of the premises ever since ; and 
 until lately disturbed by the said complainant's original bill 
 of complaint and his amended bill. And this defendant far- 
 ther saith, this defendant had no manner of notice of the said 
 complainant's right or title to the said premises, or any part 
 thereof, either at law or in equity, which the said complain- 
 ant hath or ever had to the said manors and premises, or any 
 part thereof, or of any deeds or writings whatsoever, whereby 
 to make the said fine, or other conveyances, executed to the 
 said, &c. the father, or his estate, in the before mentioned 
 premises, any way defeasible, or to make any of the said 
 manors, lands,, or tenements, in the said bill mentioned, 
 redeemable by the said , or the said complainant, 
 
 upon any fines or considerations whatsoever ; or that the same, 
 or amy part thereof, were ever intended to be redeemable by 
 the said complainant, or any of the said complainant's ances- 
 tors, at or before the execution of the said indentures of the 
 14th. July, 1720, to this defendant, by the said ; or 
 
 at or before the respective times of executing the several 
 before mentioned conveyances to the said E. F., this defend- 
 ant's trustee, or before this defendant actually paid the said 
 sum of to the said , for the purchase of 
 
 the respective estates and interests in the said premises. And 
 this defendant farther pleads, and says, that the said 
 had not, to the knowledge or belief of this defendant, any 
 notice of the said complainant's title, or any part thereof, at 
 or before the execution of the said several conveyances and 
 assurances, to him the said, &c. respectively. All which 
 matters this defendant doth aver, and is ready to maintain 
 and prove, as this honorable Court shall think fit to direct. 
 And this defendant doth insist on the said several matters, the 
 length of possession, and quiet enjoyment by this defendant, 
 and non-claim of the said complainant, and doth plead the 
 game, and other the matters and things aforesaid in J)ar, to so 
 much and such parts of the said bill as aforesaid, and humbly 
 demands the judgment of this honorable Court, whether he 
 shall be compelled to give any farther or other answer to such 
 part of the said bill as is so pleaded unto : and this defendant 
 not waiving his plea, but relying thereon, and for better sup- 
 porting the same, for answer, &o. 
 
ANSWERS. 389 
 
 ANSWERS. 
 
 GENEEAL FORMULA OF ANSWERS. 
 
 [For convenience, these forms of answers have been divided into five 
 parts: First, the commencement, denoted thus: {'); Second, the intro- 
 duction, denoted thus : (J) ; Third, the substance, denoted thus : (') ; 
 Fourth, the conclusion, denoted thus : {<) ; and fifth, the affidavit, denoted 
 thus: (5).] 
 
 (f) Commencements of answers. 
 
 Ordinary form. — The answer of , the defendant, 
 
 \or, one of the defendants, or, the joint and several answers 
 
 of , the defendants,] to the bill of complaint exhibited 
 
 against him, [her, or, them,] in the court of , 
 
 by , complainants. 
 
 When defendant is an infant. — The answer of A. B., an 
 
 infant under the age of twenty-one years, by , her 
 
 guardian ad litem, assigned to defend her in this suit, to a 
 
 bill exhibited against the said A. B. (and others,) by , 
 
 in the court .of 
 
 When christian nam,es of some of the defendants have 
 been misstated in the hill. — The joint and several answer of 
 L. M. and J. P., in the bill called L. E. and M. P. and Q. X. 
 
 to a bill exhibited against them (and others) in the 
 
 court of , by J. W. 
 
 Answer of one in his own right and as administrator and 
 guardian. — The answer of Gr. H. iii his own right and as 
 administrator of all and singular the goods and chattels of 
 R. L. deceased, and of the said G. H. as guardian of L. B., 
 to a bill exhibited against him in his own right and as such 
 
 administrator and guardian, by B. D. in the court 
 
 of . 
 
 Answer of husband and wife. — ^The joint answer of A. B. 
 and Caroline his wife, to a bill, &c. (as before.) 
 
 A supplemental (or further") answer. — The supplemental 
 answer of, &c., &c., or. The further answer of, &c., &c. 
 
 A plea and aniswer.^(^QB section 125 of preceding 
 volume.) 
 
890 ANSWERS. 
 
 (*) Introduction to answers. 
 
 This defendant (or, these defendants) now and at all times 
 hereafter saving and reserving unto himself (or themselves, 
 and each of them,) all benefit and advantage of exception 
 which can or may be had or taken to the many errors, uncer- 
 tainties and other imperfections in the said complainant's said 
 bill of complaint contained, for answer thereto, or unto, so 
 much and such parts thereof as this defendant is (or, these 
 defendants are) advised is or are material or necessary for him 
 (or, them) to make answer unto, this defendant (or, these de- 
 fendants,) answering saith, (or, say,) &c. 
 
 Another form. — This defendant, reserving to himself all 
 right of exception to the said bill of complaint, for answer 
 thereto saith, &c. 
 
 (') Substance of answer. 
 This, of course, varies with each case. 
 
 (*) Conclusion. 
 
 [And this defendant denies all and all manner of unlawful 
 combination and confederacy wherewith he is by the said bill 
 charged, without this, that there is any other matter, cause or 
 thing in the said complainant's said bill of complaint con- 
 tained, material or necessary for this defendant to make an- 
 swer unto, and not herein and hereby well and sufficiently 
 answered, confessed, traversed and avoided or denied, is true 
 to the knowledge or belief of this defendant ; all which mat- 
 ters and things this defendant is ready and willing to aver, 
 maintain and prove, as this honorable court shall direct, and 
 humbly prays to be hence dismissed, with his reasonable costs 
 and charges in this behalf most wrongfully sustained.] 
 
 The foregoing, between brackets, may be used, though it is 
 not the usual practice in this country. In lieu thereof, the 
 following is the form : 
 
 " And now, having fully answered the complainant's bill, 
 (and denying all unlawful combination and confederacy as 
 Merein charged,*) this respondent prays hence to be dis- 
 missed with his reasonable costs in this behalf expended, and 
 he will ever pray, &c." G. M., p. d. 
 
 * When combination is not charged in the bill, omit the member of 
 sentence enclosed within parenthesis. 
 
ANSWERS. 
 
 391 
 
 (0 Affidavit 
 
 Corporation (or county) of . This day personally 
 
 appeared before me, J. W., a justice of the peace (or notary 
 public, &o., &c.) for the corporation (or county) aforesaid, L. 
 H., whose answer is above written, and made oath that the 
 statements contained in the said answer, so far as made of his 
 own knowledge, are true; and that such statements as are 
 made therein from knowledge or information derived from 
 others, he believes to be true. Given under my hand, this 
 day of 
 
 An answer hy P. C. [an executor,'} denying assets and stating 
 that the estate is indebted to the executor. — [Eq. Drafts- 
 man, p. 385.] 
 
 • 
 (') The answer of P. C, esq., one of the defendants, to a 
 bill of complaint of T. K. complainant, exhibited in the 
 
 Court of 
 
 (f) This defendant now and at all times hereafter, saving 
 and reserving to himself all and all manner of benefit and 
 advantage of exception to the manifold errors, uncertainties, 
 imperfections, and insufficiencies in the said complainant's 
 said bill of complaint contained, for answer thereunto, or unto 
 so much, and such parts thereof, as he this defendant is 
 advised, is material for him this defendant to make answer 
 unto, he this defendant answering, saith, (f) that he denies 
 that A. M. in the said complainant's bill mentioned, was, at 
 the time of making her will, possessed of a considerable 
 personal estate ; but this defendant admits that the said A. 
 M. did, on or about the time in the said complainant's bill 
 for that purpose mentioned, duly make "and execute her last 
 will and testament of such date, purport, and effect, as in the 
 said complainant's said bill of complaint, is for that purpose 
 particularly mentioned, and that she thereby gave to the eaid 
 T. R. her brother an annuity or yearly rent-charge of $ 
 a year, payable quarterly; but the said testatrix A. M. did 
 not, in and by her said will, give any directions out of what 
 particular fund the said annuity of ^ a year should be 
 
 paid. And this defendant admits that the said testatrix by 
 her said will, gave several other lagacies, and thereby, after 
 having devised to her daughter M. M. (now M. P.) her 
 executors, administrators, and assigns for ever, all the rest 
 and residue of her estate, of what nature, kind, or quality 
 
392 FOKMS OE ANSWERS IN SPECIAL CASES. 
 
 soever, she the said testatrix A. M. appointed him, this 
 defendant, and M. his wife, together with J. R. and T. P. 
 since deceased, joint executors of her said will. 
 
 And this defendant further answering, saith, that the said 
 A. M. on or about the day of , which was 
 
 in the year of our Lord , departed this life without 
 
 revoking or altering her said will, and that soon after the said 
 A. M.'s death, he this defendant together with M. his late 
 wife, J. R. and T. P. duly proved the said A. M.'s will in 
 
 the Court of , and took upon themselves the 
 
 burthen of the execution thereof j but this defendant abso- 
 lutely denies that he ever possessed any part of the personal 
 estate or effects of the said A. M. save and except a few 
 household goods of very trifling value, or that to his knowl- 
 edge, information or belief, the said A. M. died possessed of 
 personal estate or effects to any considerable value, or even 
 sufficient to pay her debts and legacies ; but on the contrary, 
 he this defendant saith, that he this defendant did, for the 
 honor and credit of and in respect to the memory of the said 
 A. M. deceased, pay divers sums of his own proper money, as 
 well in discharging several debts of the said A. M. as in the 
 payment of legacies given by her the said A. M. to her poor 
 relations, and also towards the support and maintenance of 
 the said complainant T. R. who is a person in indigent cir- 
 cumstances, imprudently and totally incapable of making a 
 proper use of his money; and for which reason, he this 
 defendant caused such sums of money as he from time to 
 time advanced to the said T. R. to be paid and applied in 
 necessaries for him. 
 
 And this defendant further answering saith, that his late 
 wife M. C. in the life-time of the said A. M., from her 
 knowledge of the said A. M.'s being in bad circumstances 
 and wanting money, did, for some time before her death, buy 
 with his this defendant's money, provision for the said A. M. 
 and her family, and that the said M. C. also paid the said A. 
 M.'s physician his fees during the said A. M.'s last sickness, 
 likewise with this defendant's money, and for which reason he 
 this defendant is well satisfied that the said A. M. died in 
 very indifferent circumstances, and left little or no personal 
 estate at her death. 
 
 And this defendant further answering saith, that he hath 
 heard and believes it to be true, that the said A. M. was in 
 her life-time possessed of some trifling real estate at W., in 
 the county of N., of tlie value of about I a year to which 
 
FORMS OF ANSWERS IN SPECIAL CASES. 393 
 
 she was entitled for her life only ; and that upon her death 
 the other defendant M. P., as her only daughter and heir at 
 law, became entitled thereto, and this defendant hath likewise 
 heard and believes, that the said A. M. was, at the time of 
 her death, possessed of another freehold estate, left her by 
 the will of — P. deceased, for her life only, and after her 
 decease, to the said defendant M. P. and her heirs. 
 
 And this defendant further answering saith, that he knows 
 of no other estate, of which the said A. M. died possessed. 
 
 And this defendant further answering saith, that he hath 
 heard and believes that the other defendants J. P. and M. 
 his wife have, since the decease of the said A. M., sold and 
 disposed of the said lands and premises at W. aforesaid. 
 
 And this defendant farther answering saith, that he this 
 defendant, or- the other defendant J. R., to the knowledge, 
 information, or belief of him this defendant, never paid 
 several considerable sums of money, or any sum of money 
 whatsoever, on account of the personal estate of the said A. 
 M., into the hands of the other defendants J. P. and M. his 
 wife, or either of them; neither does this defendant know, 
 or has he ever heard, save by the said complainant's said bill 
 of complaint, that the said M. C. this defendant's late wife, 
 and J. T. deceased, or either of them, did in their respective 
 life-times, out of the personal estate which they received of 
 the said A. M., pay her the said A. M.'s debts and legacies, 
 neither does this defendant know of the said M. C. or the 
 said J. T.'s having ever possessed any part of the said A. 
 M.'s personal estate, (if any she had,) save and e^xcept a few 
 household goods which this defendant hath heard and believes 
 they the said M. C. and J. T. in their life-times sold for the 
 sum of $ , or some such small sums of money, as this 
 
 defendant hath been informed, but which said sum of ? , 
 or any part thereof, never came to the hands, custody, 
 or power of this defendant, neither was this defendant privy 
 to the sale thereof, or ever had or saw, to the best of his 
 remembrance or belief, any written. account -thereupon, or any 
 inventory of the said household goods, neither can he set 
 forth the particulars thereof, having never been in the posses- 
 sion of the said household goods, or of any inventory or 
 account thereof; but this defendant is well satisfied that the 
 said A. M. was indebted to his late wife the said M. C. in 
 her life-time in a much greater sum of money than the 
 amount of such household goods. 
 
394 FORMS OF ANSWERS IN SPECIAL CASES. 
 
 And this defendant further answering saith, that he hath 
 heard and believes, that the other defendant J. R. was in the 
 receipt of the rents and profits of the lands and premises at 
 W. from the death of the said A. M. to the time of the said 
 other defendant J. P. and M. his wife's selling the same; 
 and that he the said J. R. during the time he was so in the 
 receipt of the said rents, did out of such rents and profits 
 pay to, or to the use of the said complainant, the said rent 
 of the said premises, and that by such payments, the said 
 annuity of $ a year must have been overpaid and 
 
 unsatisfied to the said complainant. And this defendant 
 submits to this honorable Court, that as he hath possessed no 
 assets of the said A. M. he is in no respect bound to pay the 
 said annuity or to come to any account with the said com- 
 plainant in respect thereto. And this defendant submits it 
 to this honorable Court that he is well entitled and ought in 
 justice to receive out of the said A. M.'s personal estate, (if 
 she left any,) all such sums and sum of money which he this 
 defendant hath paid for her the said A. M., or on her 
 account. And this defendant denies that he hath been applied 
 to for the several purposes alleged by the said complainant, 
 otherwise than by the said complainant's said bill of com- 
 plaint. And this defendant denies all and all manner of 
 unlavrfiil combination and confederacy in the said complain- 
 ant's said bill of complaint charged. (*) V/ithout that, &c. 
 
 P. C. (by Counsel.') 
 
 (Add Afadavit.) 
 
 An answer to a hill for an injunction to stay proeeeolings at 
 law on a judgment. — \_Alexander' s Ch. Pr. 290.] 
 
 (f) The answer of, &c., (as in general formula.) 
 ' (f) This defendant, &c., (as in general formula.) (') That 
 at the term of County Court, he recovered a 
 
 -judgment against the complainant for the sum of 
 being the amount due him, as the holder of certain promis- 
 sory notes, mentioned and described in the bill of complaint, 
 as drawn by the said complainant, payable to one B, and by 
 him endorsed to this defendant. And as the said judgment 
 was recovered without any fraud on his part, &g., it remains 
 in full force and unreversed, and as all the objections now 
 pretended against it in said bill, were inquirable into at law, 
 and shown to be true, might have been used as defences in 
 his aforesaid actidu at law, this defendant relies on his afore 
 
FORMS Ot ANSWERS IN SPECIAL OASES. 395 
 
 said judgment, and pleads the same in bar of all the relief 
 which the complainant now seeks by his bill. 
 
 And this defendant avers that he knows nothing whatever 
 of any of the transactions between the complainant and the 
 said B, and out of which the pretended equities of the com- 
 plainant are supposed to arise, and can neither admit nor 
 deny the charges in the bill in that behalf. He insists that 
 all inquiry into these matters is precluded by the judgment 
 aforesaid, but if it shall be considered by this court that they 
 are still open for examination in this suit, he is advised to 
 insist that the said B is a necessary party to this suit, to aid 
 this defendant in his defence thereof. 
 
 And this defendant avers that he acquired the aforesaid 
 promissory notes before they or any of them became payable 
 bona fide, for a full and valuable consideration, and without 
 notice.of any of the equities or defences now pretended by 
 the complainant against them; he is therefore advised and 
 insists that his right as the holder thereof cannot be affected 
 by proof now adduced of any latent equities existing between 
 the original parties to the said notes. 
 
 And as to the matters of account which are pretended in said 
 bill, to be remaining unsettled between the complainant and 
 this defendant, in respect of which a large balance of money 
 is pretended to be due from this defendant to the complainant ; 
 this defendant says that upon the complainant's own showing, 
 they are matters for the cognizance of a court of common 
 law, and he therefore insists that this court has no jurisdiction 
 to examine into them, or to grant any relief to the com- 
 plainant in respect thereof; and he more especially relies on 
 and pleads tlie judgment aforesaid against the claim of the 
 said complainant to have the balance to be found due on 
 taking an account of the aforesaid matters set off or dis- 
 counted from the sum recovered by said judgment. 
 
 And this defendant further says that if the complainant ever 
 had any cause of suit or action against this defendant, for or 
 in respect of the aforesaid matters of account or any of them, 
 
 the same did accrue unto him upwards of years before 
 
 the filing of the present bill, or suing out process thereon 
 
 against this defendant, and upwards of years before this 
 
 defendant became the holder of the aforesaid promissory notes, 
 and he pleads the act for limitation of actions and so forth, 
 against all the relief which the complainant seeks in respect 
 there'ofe 
 
396 FORMS OF ANSWEKS IN SPECIAL CASES. 
 
 Anil this defendant insisting on his aforesaid defences, and 
 praying to have the same benefit thereof as if they were 
 herein specially pleaded, for further answer admits, &c., &c., 
 [here answer the several allegations in the bill; and when 
 the bill charges fraud and combination the answer should 
 deny such fraud, &c.] 
 
 And as in duty bound he will ever pray, &c. 
 
 [Affidavit.] 
 
 An answer of mortgagor to a bill of foreclosure. 
 
 (*) The answer of, &c. [as in general formula.] 
 (") This defendant, &c., answereth and saith, he admits it to 
 be true that this defendant did at or about the time in the said 
 bill of complaint in that behalf mentioned, borrow the sum of 
 
 I from A. W. the elder in the said bill of complaint 
 
 named, and that thereupon such indenture of bargain and 
 sale and such bond as in the said bill of complaint are set 
 forth, were duly made and executed by and between this 
 defendant and the said A. W. the elder, and were of such 
 date and. to such purport and effect as in the said bill of com- 
 plaint in that behalf stated; but for his greater certainty 
 nevertheless as to the said indenture and bond and the respec- 
 tive dates, purport and effect thereof this defendant craves 
 leave to refer thereto when produced ; And this defendant fur- 
 ther answering saith, he admits it to be true that the said A. 
 W. the elder departed this life before payment of the said 
 principal-money or any part thereof; And this defendant fur- 
 ther saith it may be true for any thing this defendant knows 
 to the contrary that the said A. W. the elder left A. W. the 
 younger in the said bill of complaint also named his eldest 
 son and heir at law him surviving, and that he had first duly 
 made and published his last will and testament in writing, 
 and thereby appointed the said complainant T. W. and the 
 said A. W. the younger and L. W. since deceased executors 
 thereof, and that the said executors duly proved the said will 
 in the proper Court, and that the said will did not in any 
 manner affect *he said mortgaged premises, and that the ' 
 legal estate and interest therein descended on and vested 
 in the said A. W: the younger, and that such indenture 
 as in the said bill of complaint is stated to bear date, &c. was 
 duly made and executed by and between such parties and 
 to such purport as in the said bill of complaint set forth ; and 
 that the said A. W. the younger departed this life at or about 
 
FORMS OF ANSWERS IN SPECIAL CASES. 397 
 
 the time in the said bill of complaint in that behalf mentioned, 
 leaving the said complainant G^ W. an infant, his only son 
 and heir at law him surviving, and that he had first duly 
 made and published his last will and testament in writing of 
 such date as in the said bill of complaint mentioned, and 
 thereby appointed the said complainants T. W. &c. executors 
 thereof, and that the said complainants duly proved the said 
 will in the proper Court, and that the said will did not in 
 any manner affect the said premises, and that the legal 
 este,te and interest therein descended upon and is now vested 
 in the said complainant G. W., and that the said T., W. 
 departed this life soon after the death of the said last-men- 
 tioned testator, and that thereupon the said complainant T. 
 W. became also the surviving executor of the said A. W. the 
 elder, but this defendant knows nothing of the said several 
 matters aforesaid save as he is informed by the said bill of 
 complaint, and therefore craves leave to refer the said com- 
 plainants to such proof thereof as they shall be able to make. 
 And this defendant admits that the said principal sum of 
 
 ^ or any part thereof hath not yet been paid, and that 
 
 the same now remains due and owing from this defendant on 
 the security of the said mortgaged premises together with an 
 
 arrear of interest thereon from , but this defendant 
 
 denies that the said mortgaged premises are a scanty security 
 for the same, and on the contrary thereof this defendant saith 
 
 that the said mortgaged premises are of the value of $ 
 
 and upwards ; and this defendant saith that there is no other 
 charge or incumbrance affecting the said mortgaged premises ; 
 and this defendant, trusts this honorable Court will allow him 
 a reasonable time for the redemption of the said premises ; 
 And this defendant denies, &o. 
 [Add affidavit.] 
 
 DISCLAIMERS. 
 
 The disclaimer must be on oath as an answer. See pages 
 70, 71, ante. 
 
 Form of disclaimer. 
 
 The disclaimer of A, to the bill of complaint of B, against 
 liim in chancery exhibited. 
 
 This defendant says that he does not know or believe that 
 he ever had, nor did he claim or pretend to have, nor doth ho 
 now claim or pretend to have any right, title or interest of, in 
 34 
 
398 FORM or ANSWER AND DISCLAIMER. 
 
 or to the estates and premises in the said bill set forth or any 
 part thereof; and this defendant doth disclaim all right, title 
 and interest to, or in the said estates and premises, and every 
 part thereof. And prays to be dismissed with costs, &c. 
 
 Answer mid disclaimer. 
 
 These defendants, &o. say they admit that J. C. in the said 
 
 bill named departed this life on the day of , having 
 
 first duly made his last will and testament, whereby he 
 appointed his sons these defendants joint executors thereof, 
 
 and that they these defendants proved the same in the 
 
 Court of , on the day of — — ■, and thereby be- 
 came his legal personal representatives; And these defend- 
 ants further severally answering say they do not claim any 
 interest in the estates in the said bill stated to be charged 
 with the annuities to the said complainants W. S. and J. 
 C. therein mentioned and with the mortgage therein also 
 mentioned to be assigned to them ; And these defendants fur- 
 ther severally answering say they do not object to the pay- 
 ment of what may be due to the said complainants out of 
 the rents and profits of the said estates ; And these defendants 
 do disclaim all right title and interest in and to the said es- 
 tates and every part thereof; And these defendants deny, &c. 
 
 HEPLICATIONS TO ANSWERS. 
 
 See section 181, in preceding volume, and note; also, sec- 
 tions 182—5. 
 
 General replication. 
 
 See Form in section 181, preceding volume. Rarely 
 reduced to writing in Virginia State Courts, or in the 
 United States Courts held in Virginia. 
 
 EXCEPTIONS TO ANSWERS. 
 
 "-■'■'I 
 
 See sections 186 — 193, in preceding volume. 
 
 Several exceptions to ansiccr in Chancery. 
 
 •'Ito the ' Court of . 
 
 Between J. R., complainant, and J. F. and C. 11., de- 
 fendants'.'-'' 
 
 '''Es<.4'pti5hs taken by the said complainant to the iusufiicient 
 aiisWei^ of 'tlW said defendant C. E. to the said complainant's 
 bill of complaint. 
 
FORM or EXOBPXIONB TO ANSWER. ?jftO 
 
 1st, — For that the said dcibudant (J. E. hath uot to the * 
 best and utmost of Iiis Icnowledge, rcuiembranco, information 
 and belief, answered and set forth whether at the time when 
 the reversionary interest uf the said C. 11. in the said bill 
 mentioned w^as put up for sale as therein mentioned, the 
 Reverend J. F. li. in the .said bill named the father of the 
 said complainant, did not and without the knowledge of the 
 said eomplainant, request T. ('. in the said bill named to 
 attend or procure some person to attend the said sale and 
 purchase the reversionary interest for him the said J. F. R., 
 nor whether the said T. 0. did not request J. G-. in the said 
 bill named to attend such sale and to purchase the reversion- 
 ary interest of the said. G. R. in the estate in the said bill 
 mentioned for the said J. F. R. as therein mentioned, nor 
 whether the said J. (1. did not accordingly attend such sale, 
 nor whgther he did not become the purchaser of the said 
 reversionary interest for the said J. F. R. at the sum of $100 
 or at some other and what sum of money. 
 
 2d. — For that the said defendant hath not in manner 
 aforesaid answered and set forth whether in consequence of 
 such purchase the said J. P. R. did uot give. instructions to 
 his then solicitor for preparing the necessary conveyance of 
 the said reversionary interests in the said estate and premises, 
 and for suffering a recovery and making a complete settlement 
 thereof according to the recommendation of Mr. W. his 
 counsel in the said bill named. 
 
 3d. — For that the said defendant hath not in manner 
 aforesaid answered and set forth whether the necessary drafts 
 of such deeds were not accordingly prepared by the said Mr. 
 W. for that purpose, nor whether before such deeds were 
 executed the said J. F. R. did not change his mind respecting 
 the same, and give directions to have fit and proper deeds 
 prepared for conveying the said estate and premises to the' 
 said complainant for the said complainant's own benefit, nor 
 whether the same was not so made accordingly. 
 
 4th. — For that the said defendant bath not in manner 
 aforesaid answered and set forth whether the said J. F. E. 
 did not himself pay the said sum of 1100 out of his own 
 proper moneys as the purchase-money of the said estate. 
 
 5th. — For that the said defendant hath not in manner 
 aforesaid answered and set forth whether under the circum- 
 stances in the said bill stated, the said eomplainant was or can 
 be considered as a purchaser himself of the reversionary 
 
400 FOKM OP BXCEPTIONI? TO ANSWER. 
 
 interest aforesaid of the said estate and premises and why, 
 nor whether the said complainant was in fact the purchaser 
 thereof, nor whether he did ever and when advance and pay 
 the purchase-money or any part thereof out of his own proper 
 moneys, nor whether the said J. F. 11. was not the actual 
 purchaser thereof in the manner and under the circumstances 
 in the said hill stated, and if not why not. 
 
 6th. — For that the said defendant hath not in manner 
 aforesaid answered and set forth whether the reversionary 
 interest in the said estate so purchased by the said J. F. R. 
 was not a free gift from him to the said complainant and for 
 his advancement in life, and if not why not ; nor whether the 
 said C. R. did not 'well know thereof at the time of the 
 execution of the aforesaid conveyance to the said complainant, 
 nor whether he did not fully concur and approve thereof, nor 
 whether all or some and which of the rest of the -creditors 
 who had proved debts under the said commission did not 
 also fully concur and approve of the same. 
 
 7th. — For that the said defendant hath not in manner 
 aforesaid answered and set forth whether the sale of the 
 reversionary interest aforesaid to the said J. F. R. did not 
 
 take place in the month of June , or at some other and 
 
 what time, nor whether the conveyance to the said com- 
 plainant did not take place in the month of January — — , or 
 at some other and what time. 
 
 8th. — For that the said defendant hath not in manner 
 aforesaid answered and set forth whether upon the death of 
 
 his father the said J. F. R. in the month of March or 
 
 at some other and what time the said complainant did not 
 enter into possession of the said estate under and by virtue of 
 the said conveyance, nor whether he hath not ever since been 
 in the undisturbed possession thereof without any claim being 
 made by or on the part of the said C. R., or the validity of 
 the transactions and conveyance in the said bill stated being 
 questioned by him^ 
 
 9th. — For that the said defendant hath not in manner 
 aforesaid answered and set forth whether under all the cir- 
 cumstances in the said bill stated the said C. R. hath any and 
 what claim upon the said estate and premises, nor whether he 
 is entitled to question the validity of the said complainant's 
 title to the said estate, nor whether the said complainant at 
 any time and when executed any declaration of trust of the 
 
FORM OP EXCEPTIONS TO ANSWEE. 401 
 
 said estate and premises or any part thereof to or in favor of 
 him the said C. R. 
 
 In all which particulars the said complainant excepts to 
 the answer of the said defendant C. R. as evasive, imperfect 
 and insufficient, and humbly prays that the said defendant C. 
 R. may be compelled to put in a full and sufficient answer 
 thereto. 
 
 G. M., p. q. 
 
 PRACTICAL NOTES, &c. 
 
 See sections 93, 194 of preceding volume; also pp. 243-50, ante ; note 
 especially (38) p. 248; (15,) (16,) p. 252; (19,) p. 254; (21,) p. 255; pp. 272, 
 3; p. 296; p. 310. Affidavits to answers, disclaimers, &c., may be to the 
 likeefiect with that pointed out on p. 317 as proper in case of a bill of in- 
 junction, &c. 
 
 A party claiming relief in equity, as a bona fide purchaser must posi- 
 tively and precisely deny all notice though it be not charged. 1 John CU. 
 Rep. 302, Ibid. 56S; 2 John Ch. Rep. 155- Ibid. 158; 3 John Ch. Rep. 
 345. When a defendant answers that he has not any knowledge or infor- 
 mation of a fact charged in the plaintiff's hilt, he is not bound to declare 
 bis belief one way or the other. Morris, &c. v. Parker, 3 John Ch. Rep. 
 297. It is only when he states a fact upon information or hearsay that he 
 is required to state his belief. Ibid. See also 5 John Ch. Rep. 247. 
 
 When a plea is ordered to stand for an answer, it may be considered as a 
 defence in whole or in part, but not as a full defence. 6 John. Ch. Rep. 
 254; in such case, the plaintiff cannot except to the plea as an answer, 
 without special leave given for that purpose. Ibid. See 1 Brown's Ch. 
 Rep. p. 404. 4 Brown's Ch. Rep. 439 ; also 3 Ves. 2S2. 
 
 See Hughes v. Blake, 9 Wheat. 4.53, cited ante. n. 305, 311, and Hearlt 
 V. Coming, 3 Parnge 569. In the latter of these cases. Oh. Walworth said 
 that when it is unnecessary to support the plea by an answer, the plea is 
 not considered as evidence in behalf of the defendant as to any facts stated 
 therein, and does not require the testimony of more than one witness to 
 contradict it, even where it negatives a material averment in the bill. See 
 2 Rob. Pr. 331. 
 
 A plaintiff cannot read his own answer to a bill of discovery in a cross 
 suit m evidence unless the defendant chooses first to introduce it. I John 
 Ch. Rep. 131. 
 
 As to pleas to the jurisdiction, see Code of Virginia, chap. 171, sec. 19 ; 
 also sec. 37. 
 
 As to when pleas in equity should be on oath. Lord Redesdale, on the 
 authority of the Practical Register, says : ''"pleas to the jurisdiction of the 
 court, or in disability of the person of the plaintiff, as well as pleas in bar 
 of any matter of record, or of matters recorded, or as of record in the court 
 itself, or any other-court, may be put in without oath." (See above cited 
 sec. 37, chap. 171, Code of Virginia, requiring oath to pleas in abatement.) 
 Daniel! thinks the doctrine too broadly stated by his Lordship and suggests 
 the following general rule : " The best mode to be adopted by the practi- 
 tioner for determining the q uestion will be to consider how ffir the oath will 
 be necessary in the event of the nlea being considered valid, and issue be- 
 ing joined upon it, to establish its truth by evidence upon oath at the hear- 
 ing ; and in all cases where such evidence upon oatn would be required 
 at the hearing, to let the plea be accompanied by the oath of the defend- 
 ant." 2 Dan. Ch. Pr. 211. In U. S. C. C. all pleas should be put in un- 
 der oath. See sec. 171 ante. 
 
 34* 
 
VI. 
 
 Proceedings at rules in the United Slates Circuit Courts afid in 
 tlie Virr/inia State Cowls. 
 
 RULES IN THE UXITED STATES CIRCUIT COURTS. 
 
 The rules are held in these courts in an Order Book required by 
 the fourth rule of .the United States Supreme Court to he kept by 
 the clerks of the several circuit courts of the United States. On 
 reference to the Rules of Practice, p. 219 ante, the reader will 
 learn the mode of holding rules in these courts and the character 
 of the entries to bo made therein. 
 
 RULES IN" THE VIRGINIA STATE COURTS. 
 
 The following are the orders entered at rules in these courts as 
 extended, when the record in suits in equity is made up. These 
 orders are entered in brief on the rule book by the clerk, as^will 
 be seen on reference to the " Form of clerk's rule book" here- 
 after given. 
 
 As was stated in preceding volume, sec. 6, the rules for these 
 courts are opened in the clerk's office on the Jirst Blonday in 
 every month, except when a term of a circuit court or a quar- 
 terly term of a county or corporation court commences on that 
 day, or either of the two following days, or on the preceding 
 Thursday, Friday and Saturday, in either of which events, the 
 rules will be held on the last Monday in the next preceding 
 month. The rules continue open three-days. («) 
 
 {a) It was stated in sec. 1, preceding volume, tliat suits ordinarily' may 
 be instituted in the Virginia State courts before filing a bill or information, 
 bv filing a memorandum with the clerk, and the form of a memorandum is 
 given in that section. The following are forms of other memoranda to in- 
 stitute a suit ill these courts: 
 
 MEMOKANDA. 
 
 Memorandum for summons in S2iit instituted by a. next friend of infant 
 or married woman. 
 
 A. 15., an infant Jof tender years, by G. II., his next friend, plaintiff; 
 against 11. B. and K. I-, defendants. 
 
 Issue summons, &c., (as in sec. 1 of preceding volume.) 
 
 G. M., p. q. 
 
PROCEEDINeS AT RULES 403 
 
 Forms of orders at rules in Virginia State Courts. 
 
 [In the following forms, the sections marked as the heading of each entry 
 refer to sections in the preceding volume.] 
 
 Side on plaintiff to file Ms bill. (Sec. 8 and 67.) 
 
 This day the defendant C. D. appeared to the suit against him 
 by A. B., plaintiff, and gave a rule to the plaintiff to tile his hill 
 on or before next rules to be held in this ofiice. 
 
 SuiU dismissed for leant of bill after nile. (Sec. 9 and 67.) 
 
 In this suit, the defendant 0. D. gave a rule to the plaintiff at 
 
 the rules to file his bill, and the said plaintiff having 
 
 failed to file the same, it is ordered that this suit stand dismissed 
 and that the plaintiff pay unto the said defendant five dollars and 
 his costs by him about his defence in this behalf expended. 
 
 Same, token three months have expired since summons was execvied 
 on the defendant and hill not fled. (Sec. 9 and 67.) 
 
 Three months having expired since the summons issued in this 
 suit was executed on the defendant, C. D., and the plaintiff hav- 
 ing failed to file his bill herein, it is ordered that this suit be 
 dismissed. 
 
 Suit abated for want of jurisdiction. (Sec. 10.) 
 
 The defendant, C. D., having been returned by the sheriff of 
 ■ on the summons heretofore issued against him. as not a 
 
 Julia B.,the wife of R. B., hv J. M., lier next friend, plaintiff, against 
 K. L. and the said R. B., defendants. 
 
 Issue summons, &c., (as in sec. 1. of preceding volume.) 
 
 G. M., p. q. 
 
 When there are infant or insane defendants. 
 
 L. B., plaintiff, against ^FM., R. P., (a person of unsound mind,) and 
 Q,. O., the last named of whom is an infant under the age of twenty-one 
 yeai's, defendants. 
 
 Issue summons, &c., (as in sec. 3. of preceding volume.) 
 
 G. VV. R., p. q. 
 
 By tJie committee of lunatic, SfC. 
 
 I. B., committee of the person and estate of E. F., a lunatic, (or, com- 
 mittee of the estate of B. M., a convict,) plaintiff, against R. M., C, D. and 
 J. S., and B. W., the committee of the person and estate of I.. W., a luna- 
 tic, defendants. 
 
 Issue summons, &c., (as in rec. 1. of preceding volume.) 
 
404 VIRGINIA STATE COURTS. 
 
 resident of this county, and it appearing on tlie face of the bill 
 of plaintiff, that this court has not jurisdiction as to said defen- 
 dant, it is ordered that this suit abate. 
 
 Decree nisi. (Sec. 68.) 
 
 The summons awarded in this cause being returned executed 
 on the defendant C. D., and the bill of the plaintiff having been 
 filed, and the said C. D. still failing to appear and plead, answer 
 or demur to the said bill,- on the motion of the plaintiff it is 
 ordered that it be entered on record that his bill will be taken 
 for confessed as to the said C. D., if the said C. D. shall continue 
 in default. 
 
 Rule to plead given defendant hy plaintiff. (Sec. 68.) 
 
 The summons awarded in this cause being returned executed 
 on the defendant, C. D., and the bill of the plaintiff having been 
 filed, and the said defendant C. D. having appeared, but yet fails to 
 plead, answer or demur to the said bill, a rule is given to the said 
 defendant to plead, answer or demur to the said bill by the rules 
 next succeeding this rules ; and if the said C. D. shall then fail 
 to plead, answer or demur to the said bill the same will be taken 
 for confessed as to him. 
 
 Bill taken for confessed and cause set for lieavimj. (Sec. 09.) 
 
 The defendant C. D. not yet having appeared and pleaded, an- 
 swered or demurred to the plaintiff's bill, the same is taken for 
 confessed as to the said defendant, and the cause is set for hear- 
 ing as to him. [a) 
 
 Or, the defendant C. D., who has appeared to this suit, still 
 failing to plead, answer or demur to the plaintiff's biU, the same 
 is taken for confessed as to the said defendant, and ilie cause set 
 for hearing as to him. (a.) 
 
 Plea or demurrer set down for argument. (Sec. 71.) 
 
 This day came the defendant C. D., and filed a plea [or demur- 
 rer) to the plaintiff's bill, and the said jJea [or demurrer) is set 
 down for argument. ^ 
 
 Issue talcen on plea. (Sec. 71.) 
 
 This day came the defendant C. D., and filed a plea to the 
 plaintiff's bill, and the plaintiff' took issue upon the statements 
 
 (a) See Sec 69. In case of taking bill for confesaed, the ranse may be 
 set for hearing at the same or at the succeeding rules. 
 
PKOCEBDINaS AT RULES 405 
 
 mrde in the said plea, and it is ordered that the said issue be 
 tried by a jury. («.) 
 
 Replication to answer and caune set for hearing. (Sec. 73.) 
 
 This day the defendant C. D. appeared and filed his answer to 
 the bill of the plaintiff, and the plaintiff thereupon replied gene- 
 rally, and the cause is set for hearing as to the said defendant. 
 
 Exceptions to ansioer. (Sec. 73.) 
 
 The plaintiff this day filed exceptions to the defendant's answer, 
 and the said exceptions are set down for argument. 
 
 Suit set for heariiig by defendant. (Sec. 76.) 
 
 Four months having elapsed since the answer of C. D., a de- 
 fendant in this cause was filed, and the plaintiff herein not hav- 
 ing set the cause for hearing as to such defendant, and not hav- 
 ing filed exceptions to his said answer, on motion of the said de- 
 fendant, this cause is set for hearing as to him. 
 
 Guardian arl litem assigned infant or insane defendant to defend 
 him. (Sec. 77.) 
 
 C. G. is assigned guardian ad litem to the infant [or insane) 
 defendant, O. B. to defend his interests in this suit. 
 
 Order of puhliccttion against absent defendants. (Sec. 78.) (h) 
 
 E. M., plaintiff, against L. C, D. R. and others, defendants. 
 
 The" object of this suit is to (here state, object of suit;) and 
 affidavit having been made and filed that the defendants above 
 named are non-residents of this Commonwealth, the said defend- 
 ants are' notified to appear at the rules to be holden in the clerk's 
 
 office of the said court on the first Monday in next, and 
 
 do what is necessary to protect their interests in this suit. 
 
 Same, against nnhiown defendants. (Sec. 78.) (6) 
 
 E. M., plaintiff, against L. C, E. K., and certain defendants, 
 unknown, (heirs at law and distributees of K. M., deceased, or 
 as the case may be,) defeadants. 
 
 (a) Should this gj-der be made by the clerk in the office, or only by the 
 court in term time? We see no reasonjvhy the entry may not be asproperly 
 made by the clcrlj, and this seems to have been the intention of the Code. 
 (See Code of Virginia, chap. 171, sec. 33.) 
 
 (J) This order should be published successively for four successive weelsf, 
 in some newspaper, and a copy posted up as mentioned in sec. 80, ante. A 
 lilce order may be made against other defendants, — see sec. 78. In no case 
 should the order be entered without affidavit as required by statute. See 
 Code of Virgihia, chap. 170, sec. 10. 
 
406 VIRGINIA STATE COURTS. 
 
 The object of this suit is to (here state object of suit,) and tlio bill 
 stating that the names of the persons interested in the subject of 
 this suit dosoribod in the bill as parties unknown, (heirs at law 
 &o., or, as the case may be) and affidavit having been made and 
 filed that the names of the said persons are unknown to the 
 plaintiff, the said defendants are notified to appear at the Rules 
 to be holden in the clerk's office of the said covirt on the first 
 
 Monday in next, and do what is necessary tn protect 
 
 their interests in this suit. 
 
 Scirefacias awarded. (See. 88 — 91.) 
 
 On motion of the plaintiff a writ of scirefacias is [awarded 
 against C. D., executor of the last will and testament [or admin- 
 istrator of all and singular the goods and chattels] of R. M,, de- 
 ceased, returnable to the rules to be held on the first Monday in 
 next, (6) (or, against C. D., executor, &c.,) (or admin- 
 istrator, &c.,) also against L. B. and ■ — 
 
 As fo process of contempt. 
 (See next title.) 
 
 [Here follows the form of a Clerk's Rule Docket for Equity causes in 
 Virginia State Courts :] 
 
 (a) iVTay be made returnable to a term. 
 
Form of Clerk's rule docket for equity Suits in Virginia State Courts. 
 
 In this docket, L>. N. means decree ntni. v. cersu:; 
 
 0. I'. (jfd:u- o/'piihliradoa, ll's. nde.-i. p. 0. /jiv. coa/'essci, 
 Other abbreviations need no explanation. 
 
 (or IjiU taken, for confessed,) and G. 11., ijeneral repUcillon. 
 
 Plainiiff'si 
 Comisel. 
 
 Defend' is 
 Connsel. 
 
 ■J. W. 
 
 I 
 
 IK. II. 
 
 G. M. 
 
 B. T. 
 
 L. P.. 
 
 T. V. 
 
 NAMES OP P.\RTIES. 
 
 L. M. v.s.P.Q.itals, 
 
 X.Y.ys.A.B.,(J.D, 
 
 or (unknown dcfts.) 
 
 Jan'v. Feb'v. 
 
 27th| 
 Sum's vs. 
 deft's to 
 February 
 I'ulp--: 
 
 G. M. vs. 1). B., C, 
 ]i. and A. M. 
 
 I":.'s. :P. I). 
 
 r.-JI, B. iG. 11. 
 
 L. J. B. 
 
 12. h. 
 
 s. (fc p. & 
 
 R. M. 
 
 S. T. vs. U. v., A. B 
 and als. 
 
 L. N. vs. S. R. 
 
 B. W. B. an infant 
 by his next friend, 
 B. L. vs. E. W. and 
 J. K. 
 
 Bill liled^ 
 and sums 
 V. A. B. to 
 Febj. E.s 
 Affidavit 
 of non res- 
 idence of 
 C. D. and 
 ord. pub 
 vs. C. D. i 
 
 .Sums 
 rct'd ex'd 
 
 on deft 
 W. Bill 
 filed. D. 
 N.astoAV. 
 New sum- 
 mons vs. 
 otlier de- 
 fendants. 
 
 u. pu 
 C. U. 
 
 V. C. U. & 
 
 unknown 
 
 defts.filcd; 
 
 affidavitof 
 
 posting. 
 
 Sum's vs. 
 
 A.B.ret'd 
 
 nottimeto 
 
 execute — 
 
 unknown jnew sum s 
 defend'ts i to April 
 toFeb.Rs.!Rules. 
 
 Sums vs.jDcft.O.R. 
 
 defend'ts ! appeared 
 
 toFebr'vjandgave 
 
 Rules." i rule to 
 
 Jpltf tofile 
 
 bill. 
 
 Summ's 
 
 ret'd ex'd 
 
 Maucii. 
 
 Bill taken 
 
 for conf'dldef't P. Q 
 
 April. I May. 
 
 June. 
 
 July. I Ai'orsT. I Sept'r. 
 
 i Set for I 
 
 Answer oi'Iioaring ai^j 
 
 ' to def'ts ! 
 
 a<t.) \V. 
 
 Sum's 
 
 ret'd ex'd 
 
 aslfKitliei 
 
 liled it G. 
 R. Bill 
 taken for 
 eonf'd a? 
 
 def'ts audito def dts 
 D. N. as tfJiv.. II. and 
 them. IB. I,. 
 
 P. Q. on 
 his answ'r 
 and as to 
 other dft's 
 on bill ta- 
 ken for 
 eonfess'd 
 as to them. 
 
 Set for 
 hearing as 
 to dcfts 
 C. I), and 
 unknown 
 
 defts. 
 
 L 
 
 Sum's V. 
 A.B.ret'd 
 
 ex'd and 
 D. X. 
 
 Bill 
 taken for 
 confessed 
 and suit 
 set for 
 hearing as 
 to A. B 
 
 I 
 
 Bill tiled:! I 
 
 D. ]V. as to [Answer of; 
 D.B.RulejO.B. tiled!: 
 ondeftC.IC. R. fail-i 
 R. to pleading to aj 
 
 L.O.app'd 
 >;'d'n ad, 
 litem to 
 
 pear and 
 
 plead, and 
 
 plaintiff 
 
 on P. W. 
 
 infant dft.jwisliingto 
 A. M. An-i compel 
 swcr of lan.'-wer — 
 gdn ad li-!attach'mt 
 tcm filed VS. ('. R.'l 
 andG. Vj | 
 
 t'. R. bro't 
 in under 
 ,ittachm't 
 and filing 
 
 his an- 
 swer, lie 
 
 was dis- 
 charged. = 
 
 G. E. to 
 answer, & 
 cause set 
 for hear- 
 ing as to 
 him. 
 
 Cont'd. 
 
 Cont'd. 
 
 |2,3| Bill; New 
 fided and |sum's and ex'd on U. 
 
 ^,~!PleaofN.li 
 umms Ifiledropln': 
 returned ,^iij ;,/ug, 
 
 A. B. ap- 
 
 inju'nct'n 
 I to April 
 i Rviles. 
 
 to Mav 
 Itules. 
 
 '>f.agahi"st 
 diim 
 
 20] Sum's 
 V-. S. R.t< 
 A-pril R's 
 
 c. yv. 
 
 H. VS. X., Y. and Z, 
 
 also fM., B. & L.] 
 
 Sum's vs. 
 J.L.K.M. 
 N.P.L.E. 
 
 sum's audi injunct'n V. and Ty.^'^'Pi •'^^^}?- ^m'I 
 ;v,!„\,„f., i tn \r„,- 'V „„,.,■■„,; peared & irct'd ex d ; 
 
 an.swer, to 
 which plff. 
 fiJed ex- 
 ceptions ; 
 & excep- 
 tions set 
 down for 
 argument 
 D. N. as toi 
 B.W.N.P. 
 J. L. &K,I 
 M. 
 
 <!'ont'd. 
 
 Four 
 )nonths 
 having 
 elapsed 
 since I). 
 
 B. filed his 
 answer, 
 
 on motion 
 of D. B 
 
 suit set for 
 
 hearingas 
 
 to him. 
 
 October. 
 
 NoYEM'R.i DeCEMb'r 
 
 I 
 
 tiled aplca 
 y , which was I 
 Sum s v. ;oj,^ motion^ 
 other de-, of pg-ggt^ 
 tendants ' ,i ',.„ r,„. . 
 
 to Julv. 
 
 Cont'd. 
 
 I down for 
 
 argument 
 
 at next 
 
 term of ' 
 
 the Court.' 
 
 Bill tiled. 
 Sum's re 
 turned 'no' 
 
 inliabi- j 
 tant,' and 
 it appear-| 
 
 ing that j 
 Court has 
 
 no juris 
 diction in 
 this suit. 
 This suit 
 dismissed, 
 
 Sum's vs. 
 dcfts to 
 March R's 
 
 Bill tiled, 
 .suram's 
 ret'd ex'd 
 and I). N. 
 as to dcfts. 
 
 Bill filed 
 
 and sum't 
 
 to June 
 
 Rules. 
 
 Sum's 
 ret'd ex'd 
 as to deft 
 
 R. W. 
 
 'Not 
 found' as 
 toJ.K;D. 
 N. as to R. 
 W. New! 
 sum's vs. 
 J. K. to 
 July R's. 
 
 Am'cL and 
 iupp'l bill 
 vs. dcfts 
 to original 
 bill and 
 against M 
 B. and L. 
 Sum's vs. 
 defts M. 
 B. and L. 
 to answer 
 original & 
 am'd and 
 supple- 
 mental 
 bills. Ori- 
 ginal bill 
 
 set for 
 hoarina as 
 
 Cont'd. 
 
 Sum's V. jCausc set 
 M. B. and for hear- 
 
 Setfor 
 hearingas 
 
 to R. yv. 
 
 New 
 
 sum's to 
 
 Octo. R's. 
 
 V. J. K. 
 
 Suit set 
 
 for 
 
 Ihearingas 
 
 to B. Sr. 
 
 Disclaim- , 
 
 er of J. L! 
 
 tiled and 
 cause set 
 for hear- 
 ing as to 
 J. L. on i 
 
 disclaim'r 
 K. M's. 
 answer 
 
 filed, and 
 without 
 
 replicat'n 
 cause set 
 
 for hear'g 
 
 as to him. 
 
 Cont'd. 
 
 Cont'd. 
 
 L. ret'd 
 
 ex'd on 
 
 them and 
 
 IX N. 
 
 ig as to 
 
 M. B. and 
 
 L. New 
 
 summ's 
 
 3. X., Y., 
 
 Z. to Aug. 
 
 Rules. 
 
 Sum's 
 ret'd ex'd 
 on X. Y. 
 and Ciftige 
 
 set lor 
 hearingas 
 to tluin. 
 
 Cont'd. 
 
 Cont'd. 
 
 New 
 sum's V. 
 J. K. to 
 Deo. R's. 
 
 n 
 
 Cause set 
 for hear- 
 ing as to 
 N. P. on 
 his mo- 
 tion. 
 
 Cont'd. 
 
 Scirefiici- 
 as ret'd 
 ex'd on B. 
 R.N.O.P. 
 & Q. — and 
 X. having 
 
 Z. luiviugi married 
 dicdsci.fa.|A. B. sci 
 ag't I!, R.'refacias v 
 
 Scircfaci 
 as rctur'd 
 ex'd on A. 
 B. and X. 
 Ms wife, 
 and suit 
 revived 
 ag't them. 
 
 Cont'd. 
 
 ex'or of 
 his lust 
 will and 
 testanicnf 
 and \. 0.1 
 and P. y 
 his dc<vi- 
 sees io 
 Sept. irs. 
 
 A. B. and 
 X.liiswife 
 
 to Oct. 
 
 Rules. 
 
 Y, having! 
 become ai 
 convict 
 (or luna- 
 tic) scifa. 
 vs. C. D., 
 his com- 
 mittee to 
 Dec. R's. 
 
 Scirofaci- 
 as va. C. 
 D. com- 
 mittee of 
 Y. retur'd 
 ex'd and 
 suit revi- 
 ved ag't 
 him. 
 
L. B. 
 
 T.V. 
 
 V. A. B. to 
 Feby. K.s 
 Affidavit 
 of non res- 
 idence of 
 C. L». and 
 ord. pub. 
 vs. C. D. & 
 
 unknown iieai-ins;as 
 dcfls.filod:! to dcl't>< 
 affidavitofC. 1). and 
 
 postinn;. 
 Sum's vs. 
 A.B.ict'd 
 nottimoto 
 execute — 
 
 unknown 
 dofts. 
 
 unkno-wn jnew sum's 
 defend'ts j to April 
 toFeb. lis. Rules. 
 
 G. M. vs. i>. B., 0. 
 |l. nnd A. M. 
 
 K^S. 
 
 P.P. 
 
 S.T.vs. U.V.,A.B, 
 
 and als. 
 
 r.. B, B. 
 
 G. II. 
 
 L. .J. B. 
 
 f,7 
 
 S. & P. 
 Pv. M. 
 
 •c. ^v. 
 
 Sums vs. 
 
 defend'ts 
 
 to Febr'y 
 
 Ilules. 
 
 Dcft.O.B. 
 appeared 
 and gave 
 
 rule to 
 ipltf t<-.rile 
 Ibill. 
 Summ's 
 rct'd ex'd 
 on V. W. 
 
 I 
 
 L. N. vs. S. R. 
 
 Bill tiled: 
 D.N. as to 
 D.B.Bule 
 on deft C. 
 R. to plead 
 L.O.app'd 
 g'd'n ad. 
 litem to 
 infant dft. 
 A. M. An- 
 swer of 
 gdn ad li- 
 tem filed 
 and G. U. 
 
 ex'd and confessed 
 U. X. [ and suit 
 j set for 
 hearinj;as 
 to A. B. 
 
 jC. K. bro't 
 Answer ofj in under 
 l). B. iiledlattachm't 
 C. R. fail-jand filing 
 ing to ap-j his an- 
 pear and | swcr, he 
 plead, and I was dis- 
 plaintilf ■ charged.^ 
 wishing toi G. R. to 
 compel [answer, &. 
 answer — ! cause set | 
 attach'mt j for hear- I 
 f '. R.' I ing as to | 
 ! him. I 
 
 Cont'd. 
 
 Cont'd. 
 
 : Summ's 
 
 ■23 1 Bill' New j returned 
 
 filed and jsum's and cx'd on U. 
 
 sum's and! injunct'u ;V. and i). 
 
 inju'nct'n to Mar 'N.agauist' 
 
 to April 
 Rules. 
 
 Rules 
 
 jhim. 
 j Sum's V. 
 I other de- 
 : fendants 
 : to .July. 
 
 Plea of N.' 
 filed rcpln' 
 and issue. 
 A. B. ap- 
 peared & i 
 filed aplea 
 wliich was 
 on motion' 
 of ijl'ff' set' 
 down for ! 
 argument : 
 at next [ 
 term of ' 
 ithe Court, 
 
 Cont'd. 
 
 B. W. B. an infant 
 by his next friend, 
 B. L. vs. R. "W. and 
 •J. K. 
 
 H. vs. X., Y. and Z. 
 
 also fM.. B. & L.l 
 
 y. 0. 
 
 P. Q. 
 
 R.S.vs.T.U.,V.W 
 
 Sums to 
 FebT. Rs 
 
 20] 
 
 V. S, 
 A.pr 
 
 Sum's 
 
 E.to 
 
 ill 
 
 Cont'd. 
 
 Sum's VS. 
 def'tij to 
 MarchR's 
 
 Bill filed, j 
 Sum's re-j 
 turned 'no 
 
 inliabi- ; 
 tant,' and 
 it appear-, 
 
 ing that : 
 Court has; 
 
 no juris- j 
 diction in! 
 this suit, i 
 This suit j 
 dismissed.! 
 
 Bill filed 
 
 and sum's 
 
 to June 
 
 Rules. 
 
 Bill filed, 
 . suouu's : 
 ret'd ex'd 
 and I>. N. 
 as to dcfts. 
 
 Cont'd. 
 
 New 
 summ's 
 
 to March 
 Rule.?. 
 
 Am'd and 
 Kupp'l bill 
 
 y.s.-4£ps_. 
 to original] 
 bill and | 
 against M' 
 B. andL.! 
 Sum's vs. 
 dcfts M. 
 B. and L 
 to answer 
 original & 
 am'd and 
 supple- 
 mental 
 bills. Ori-| 
 ginal bill 
 
 set for 
 
 hearing asj 
 
 to def'ts ! 
 
 X. Y. Z. 
 
 on origin-] 
 
 al bill. 
 
 Cont'd. 
 
 Sum's vs. 
 •J.L.K.M. 
 N.P.L.R 
 
 andB. AV. 
 rct'd cx'd. 
 L. R. filed 
 answer, to' 
 which pis', 
 filed ex- 
 ceptions ; 
 & excep- 
 tions set 
 down for 
 argument 
 D. N. as to! 
 B.AV.N.P. 
 ■J. L. & K. 
 M. 
 
 Four 
 months 
 having 
 elapsed 
 since 1). 
 
 B. filed his 
 answer, 
 
 on motion 
 of D. B. 
 
 suit set for 
 
 hearingas 
 
 to him. 
 
 Suit set 
 for 
 hearingas 
 to B. W. 
 Disclaim-^ 
 er of .J. L 
 filed and 
 cause sot 
 for hear- 
 ing as to ] 
 •J. L. on i 
 diselaim'r 
 K. M's. 
 answer 
 ifiled, and 
 without 
 replicat'n 
 cause set 
 for hear'g 
 as to him. 
 
 Cont'd. 
 
 Sum's I Set for 
 ret'd ex'd.hearingas 
 as to deft! to R. ^y. 
 R. W. j New 
 ' Not I sum's to 
 found' as lOcto. R's 
 toJ.K;!).; y. .J. K. 
 N. as toll. 
 \y. New 
 um's vs. 
 J. K. to 
 ■July R's. 
 
 Cont'd. 
 
 Sum's V. iCausc set 
 >f . 15. and for hcar- 
 
 ; L. ret'd 
 
 ex'd on 
 
 ithem and 
 
 T). N. 
 
 Summ's 
 ret'd cx'd 
 on T. U. 
 
 New 
 
 sum's V. 
 
 V. W. 
 
 Cont'd. 
 
 ing "as to 
 M. B. and 
 L. New 
 
 summ's 
 
 vs. X., Y., 
 
 Z. to Aug. 
 
 Rules. 
 
 New 
 sum's v. 
 
 Y. W. 
 Cont'd. 
 
 Sum's 
 ret'd ex'd 
 on X._Y. 
 and c,ru,--ej 
 
 set ii)r 
 hearingas; 
 
 to tllLJU. \ 
 
 Z. Iiaving; 
 
 diod>ci.fa. 
 
 ag't i!. R.j 
 ox'or of 
 his last 
 will and 
 
 testament 
 
 and N. 0. 
 
 and P. Q. 
 
 his dctfi- 
 
 sees to 
 
 Sept. I'.'s. 
 
 Cont'd. 
 
 Scivefaci- 
 
 ;... rot'd 
 
 'ex'd on B. 
 
 R.N.O.P. 
 
 & Q. — and 
 
 X. having 
 
 married 
 
 A. B. sci- 
 
 rcfacias v. 
 
 A. B. and 
 
 X. Iris wife! 
 
 to Oct. 
 
 Rules. 
 
 Cont'd. 
 
 New 
 sum's V. 
 .1. K. to 
 Dec. R's. 
 
 Cont'd. 
 
 'i'hreie 
 mentis 
 
 having 
 elapsed 
 since per 
 ^•icc <>f 
 summ's 
 on T. U. 
 and bill 
 not filed, 
 suit dis- 
 mi spoil. 
 
 Seirefaci- 
 as rotur'd 
 ex'd'oh A 
 B. and X 
 liis wife, 
 and suit 
 revived 
 ag't them, 
 
 Cause set 
 for hear- 
 ing as to 
 N. P. on 
 his mo- 
 tion. 
 
 Cont'd. 
 
 Cont'd. 
 
 Y, having! 
 become a 
 convict 
 or luna- 
 tic) scifa. 
 vs. C. B., 
 his com- 
 mittee to 
 Dec. R's. 
 
 Scirefaei-| 
 as vs. C. 
 U. com- 
 mittee of 
 Y. retur'd! 
 ex'd and 
 suit revi- ; 
 vedag't 
 him. I 
 
 '■Quaere. "What is the present process of contempt in Virginia ? See discussion of this subject post. May process ol contempt be issued at rules ? 
 
 It seems that some of the steps in this process require the special action of the court. In regard to other steps, prior to such action, there seems to be no re ason 
 wliy they may not be taken in the Clerk's office. See section 87 of preceding volume. 
 
 -in the English practice if defendant were taken under the attachment, he was brought up by habeas corpus. 
 
 If defendant, taken under process of attachment, obstinately lies in jail to save his estate or exhausts it in paying dtlipr crcditor.p, to tlio in jury of plalntifi', a writ 
 of sefiuestration is proper. See ante p. 29.5 'sequestration,' also 'process of contempt' post 
 
VII. 
 
 Mesne jjroccus in the United Stales circuit courts and in the Vir- 
 ginia State courts. 
 
 IN THE UNITED STATES COURTS. 
 
 Suhjpcena. 
 
 THE PRESIDENT OF THE UNITED STATES OF AJIEMCA, 
 
 '•To tlie Marshal of the Eastern District of Virginia, Greeting : 
 
 You are hereby commanded, to Bummou A. B., N. R., B. 
 W. and J. N. (a) citizens of the State of Virginia, and residents 
 within the Eastern District thereof, to appear before the Judges of 
 the court of the United States, for the fourth circuit and Eastern 
 
 District of Virginia, at the city of Richmond, on the day of 
 
 ^ — term of said court {or, at tire rules to he held in the clerk's 
 office of the said court on the first Monday in next) to an- 
 swer a bill in equity exhibited against them in the said court by 
 B. M. and D. W., citizens of the State of Massachusetts : And 
 ftiis they shall in no wise omit, under the penalty of one hundred 
 dollars each ; and have then there this writ. 
 
 Witness, R. B. T., chief justice of the supremo court of the 
 United States, (6) at Richmond, in the Eastern District of Vir- 
 ginia, this day of 18 — . and in the year of the 
 
 Independence of the United States of America. 
 
 P. M., clerk. 
 
 Scirefaeias. 
 
 THE PRESIDENT OF THE UNITED STATES OF AMERICA, 
 
 To the Marshal of the Eastern Virginia District, Greeting : 
 
 Whereas a suit in equity was lately depending in the court of the 
 United States, for the fourth circuit, and Eastern District of Virgi- 
 nia, between B. M. and D. yf ., plaintiffs, and A.B., N. R. and B. 
 AV., defendants ; but before any proceedings were {or, final decree 
 
 . {a) A rule prevailed in the English courts that the names oCnot more 
 than three defendants Bhouldbe inserted in one svbpiena ; no such rule ex- 
 ists eitherin the United States circuit courts or in the Virginia Slate courts. 
 (4) In case the chief justice be not living, all writs issuing from these 
 courts must run in the name of the oldest associate justice of the supreme 
 court of the United States. 
 
410 MESNB PROCESS 
 
 was) entered therein, the said N. R. departed this life, leaving a 
 last will and testament, which has, as we have been informed, 
 
 been duly admitted to pi-obat in the court of for the city of 
 
 , and G. M., who was by said will appointed executor there- 
 of, has duly qualified as such, and the said plaintiffs have applied 
 for a proper remedy in this behalf, and being willing that right 
 and justice may be done, agreeable to the Acts of Congress of the 
 United States in such case made and provided, we command you, 
 that you make known according to law, to the said G. M., execu- 
 tor of the last will and testament of N. K., deceased, that he be 
 before the judges of the court of the United States, for the fourth 
 circuit and Eastern District of Virginia, in the City of Richmond, 
 
 on the day of ■ next, to shew if any thing for himself, 
 
 he hath or can say why the said suit in equity aforementioned, 
 and the proceedings therein had, should not stand and be revived 
 against the said G. BI., executor of the last will and testament of 
 said N. R., deceased, and be in all things in the same plight and 
 condition as it was at the time of the decease of the said N. R. : 
 and further to do and receive what the said court shall in that part 
 consider. And have then there this writ. 
 Witness, R. B. T., chief justice of the United States supreme 
 
 court, (a) at Richmond, this ■ day of , and in the 
 
 year of the independence of the United States of America. 
 
 P. M., Clerk. 
 
 Note. — This form may be readily adapted to sny case in which a scirc- 
 facias issues. 
 
 IN VIRGINIA STATE COURTS. "^ 
 
 Summons. (&) 
 See form of summons in sec. 2 preceding volume, (c) 
 Summons loiih order of injunciion. 
 
 Copy form of summons in sec. 2 preceding- volume :— then en- 
 dorse : 
 
 When injunction to a judgment. To injoiu and restrain the with- 
 in named defendants, A. B. and C. D.,'from further proceeding 
 in an action at law instituted by them in the court of the 
 
 (a) See note (J) to preceding form of subpoena. 
 
 (b) The writ formerly used" was a subpcena, the terjns of which were sim- 
 ilar to that of the subprena now issued from United States circuit courts. 
 See p. — , ante. 
 
 (c) A rule prevailed in the English courts that the names of not more than 
 three defendants should be inserted in one subprena. No such rule exists 
 in the Virginia State courts or in the United States courts. 
 
VIRGINIA STATE COURTS. 411 
 
 county of , against the within named R. B. But before this 
 
 injunction is to he effectual, the said K. B. shall enter into bond 
 with sufficient security, in the clerk's oifice of the said court, 
 conditioned as the law directs, and shall further execute a re- 
 lease of all errors at law. P. R., Clerk." 
 
 If the injunction has been awarded in vacation and not by the 
 court in term time, it is usual for the clei-k in his endorsement to 
 state what judge awarded it, thus : 
 
 " By order of the honorable J. B. C, judge of the circuit court 
 for the circuit of Virginia. P. R., Clerk." 
 
 Wfien injuiiction for %oaste, &c. The endorsement should fol- 
 low terms of order awarding injunction. 
 
 Summons with attachment. 
 (Sess. Acts of Virginia 1852, p. 78.) 
 
 Copy form of summons in section 2, preceding Tolume : then 
 endorse : 
 
 " The plaintiff in this suit having made the proper affidavit, it 
 is ordered that the officer serving the within writ do attach the 
 specific property mentioned in said affidavit, to wit: (here describe 
 specific property as described in the affidavit) and [a] such debts 
 as are already due, or to become due, to the defendant C. D. , 
 (who is a non-resident of the Commonwealth of Virginia,) from 
 the other defendants, L. M. and R. S., or either of them ; also 
 any other estate of the said defendant, C. D., whether in his own 
 hands or in the hands "of the other defendants, L. M. and R. S. 
 to answer the future order of this court. 
 
 Teste; J. E., Clerk." 
 
 Bail in equity in Virginia. 
 
 See Session Acts 1851-2, p. 36 ; also Session Acts 1852, p. 77. 
 For mode of procedure, see Tate's American Form Book, edit. 
 1854, pp. 150, 156. 
 
 SCIKEFACIAS. 
 
 To revive against a personal representative, as follows: 
 
 The Commonwealth or Virginia, to the of county, 
 
 greeting : 
 
 Whereas, in a certain suit in equity, lately depending in the 
 
 court of between J. B. and N. C, plaintiffs, and R. W. and 
 
 N. B., defendants, before any further proceedings were had there- 
 
 la) If suit be not for specific property, omit the words italicised. 
 35 
 
412 MESNE PROCESS 
 
 in, (or, before a final decree tliGrein,| the said N. B. departed 
 this life intestate, and due administration of all and singular his 
 goods and chattels having, as we have been informed, been grant- 
 ed to K. X. by the court of county, and the said J. B. 
 
 and N. C. having applied for a proper remedy in this behalf, and 
 being willing that right and justice may be done, agreeably to 
 the statutes of Virginia in such case made and 'provided, we 
 command you that you make known, according to law, to the 
 said R. X., administrator of all and singular, the goods and chat- 
 tels of the said N. B., deceased, that he be before our 
 
 said court of , in the of , on the day of- 
 
 next,, to show if anything for himself he hath or can say why 
 the said suit and the proceedings therein had, should not stand 
 and be revived against the said R. X., administrator as aforesaid, 
 and be in all things in th& same plight and condition as it was 
 at the time of the decease of the said N. B., and further to do 
 and receive what our said court shall, in that part, consider. 
 And have then there this writ. 
 
 Witness, P. R., clerk of our said court, at Richmond city, this 
 
 day of and in the year of the independence of the 
 
 United States of America. 
 
 P. R., Cleric. 
 
 Scife/'tirias arja'uifil real and persoiLat repreHeidalives, &c., (See. 88) 
 
 The Commonwealth of Virginia, io i/ie aherij)' of cmmty, 
 
 greeting : 
 
 AVheroas, in a certain suit in equity, lately depending in the 
 
 court of between J. B. and N. 0., plaintiffs, and R. B. and 
 
 N. B., defendants, before a final decree was had therein, R. B., 
 one of the defendants, departed this life, leaving, as we have been 
 informed, the following children and sole heirs at law, to wit -. 
 John, Sally and Bettie B., all of whom are over the age of twenty- 
 one years ; and, as we have been further informed, due adminis- 
 tration of all and singular the goods and chattels of the said R. 
 
 B. has been granted by the court of county to M._N., 
 
 and the said J. B. and N. C. having applied for a proper remedy 
 in this behalf, and being willing that right and justice may be 
 done, agreeably to the statutes of Virginia in such case made and 
 provided, we command you that you make known, according to 
 law, to the said John, Sallie and Bettie B., aforementioned chil- 
 dren and heirs at law of said R. B., deceased, and to the said M. 
 N., administrator of the goods and cliattela of the said R. B., de- 
 ceased, that they lie before our said court of on the 
 
 day of next, to show if any thing for themselves they have 
 
 or can say why the said suit and the proceedings therein had 
 should liot stand and be revived against them, and be in all tilings 
 in the same plight and condition as it was at the time of the de- 
 cease of the said R. B., and further to do and receive what our 
 
VIRGINIA STATE ,C0XJIITS. 413 
 
 said court shall in that part consider. And have then there this 
 writ. 
 
 Witness, J. H., clerk of our said court at this daj- 
 
 of 18 , and in the — — yenr of tlio Independence of the 
 
 United States of Amevioa. 
 
 •T. II., Clerk. 
 
 PROCESS OF CONTEMPT TO COMPEI, ANSWER. 
 
 PROCESS OF CONTEMPT. 
 
 [As stated in preceding volume this process, originally in Eng- 
 land, when directed against a person, consisted of five steps .■ 
 
 1st. A -writ of attachment directed to the sheriff of defendant's 
 county. 
 
 2nd. A writ of attachment with proclamations also directed to 
 the sheriff of defendant's county. -^ 
 
 3rd. A writ of rebellion directed to commissioners appointed 
 by the court and extending into all the counties of England. 
 
 4th. An order that the- sergeant at arms, as the immediate offi- 
 cer of the court, should effect the arrest. 
 
 5th. A writ of sequestration, issuable only on the return of no« 
 est ini-eniii.i by the sergeant at arms, or on a defendant in cus- 
 tody. 
 
 In Hook r. Ross, 1 II. and JL, 310, determined in 1807, these 
 five steps were expressly recognized as then existent and in force 
 in Virginia, (a) and under the statutes of the state at that time- 
 The following were the forms of these several processes. 
 
 faj Judge Tucker said ; "'X'liat Hook was in conlempt for not obeying 
 the order of October, 1806, I tliink unquestionable from the particulars no- 
 ticed in the commissioner's I'eport. I therefore hold the order for the at- 
 tachment for such contempt to have been ]>erfectly regular, that being the 
 first process of contempt, (2 Sol. Guitle, 511) and generally obtained, of 
 course, on afiidavif, (Ibki. 512,) and the Hhcrilf is the pro))cr officer to exe- 
 cute it, (Ibid. 515 ) And if ho returus a iwiiesl inveiUus thereon an attach- 
 ment with proclamation issues {Gilb,vh. 35 ) U]>on this process two returns 
 'may be made; cither anon est inventus u\wii which an attachment with 
 proclamations, issues of course, or a cepi corpus; if he returns the latter 
 the next step is a habeas corpus to bring up the body, for the sheriff cannot 
 carry him out of his county, (Gilb, ch. 70.) And if, upon an attachment 
 lor not performing a decree, the sherifi' returns cepi corpus and lets the party 
 to bail, (which he should not do where the writ is marked for the execution 
 of a decree) tlicre a sc(iuestration is granted iunnediately, (Ibid. 191.) So, 
 if be brought up by habeas corpus^ and will not i)erfortn the decree, but 
 obstinately lies in prison, (Iliid. 191, 192, Ross v. Colville, 3 Call, 382.) If, 
 upon attachment with proclatnation, the sheriff H««es^ i//ycH^«s he returned 
 the sergeant at arms, who is the inuuediate officer of the court, is sent to 
 seek him, (Gilb, cb. 35.) And this officer our law expressly authorizes'the 
 court to appoint, L. vi, 794, c. 64, s. 10. And he may execute the order of 
 the court in any part of the state where the party may he found which the 
 sheriff could not ; and he might also, as I conceive, bring uji the body of 
 the party in contempt without commitling him to the jail of the county, and 
 waiting for a habeas carpvs as the sheriff must- After all this process if a 
 non est inventus be returned, a writ of seqnestralinn issues, (Gilli, ch. 35-36.) 
 
414 MESNE PROCESS 
 
 1. Attachment. 
 
 'Ihe Commonvtealth of Virginia, to the sheriff of county, 
 
 greeting : 
 
 We command you that you attach A. B. so that you have his 
 
 bcdy before our judge of the circuit court of to answer as well 
 
 of a certain contempt by him to us offered, as it ia said, as to 
 those things which to him shall be then and there objected ; and 
 further to do and receive what our said court shall in that part 
 consider. And this yovi shall in no wise omit. And have then 
 there this writ. 
 
 Witness, J. E., clerk of our said court at the county of , 
 
 this day of and in the —. — year of the commonwealth 
 
 of Virginia. 
 
 J. E., Cte-A-. 
 
 Endorse. — ^For not appearing to answer [or for not answering) 
 the bill of complaint exhibited against Wm by C. D. 
 
 2. Attachment with proclamations. 
 
 The Commonwealth op Virginia, to the sheriff of cminty, 
 
 greeting : 
 
 We command you that in all and singular places in your teili- 
 wick where to you shall seem most expedient, you cause it pub- 
 licly on our part to be proclaimed that H. 0., under the penalty 
 of his allegiance, before our jxidge of the circuit court of — ■ — in 
 chancery, at the court house, on the first Monday in next month, 
 personally do appear, and nevertheless the said H. 0., in the 
 meantime, if you can find, you attach so that you have his body 
 before our judge of our said court at the day aforesaid to answer 
 us as well of a certain contempt by him to us offered as it is said, 
 as upon those things which to him shall then and there be ob- 
 jected ; and further to do and receive what our said court shall in 
 that part consider. And this you shall in no wise omit. And 
 have then and there this writ. 
 
 Witness, J. E., clerk of our said court at the county of this 
 
 day of and in the year of the commonwealth nf 
 
 Virginia. 
 
 J. E., C'hrl: 
 
 Endorse. — For not appearing to answer, (oi- for not answering,) 
 the bill of complaint exhibited against him by C. D. 
 
 All this is analogous to the proceas to compel an appearance as detailed 
 and explained, Gilb, ch. 18-77.) And when once a defendant is in con- 
 tempt he must clear it hefore he con be heard, (Ibid. 34-l>lG.) 
 
VIReiNIA STATE COURTS. 415 
 
 o. Writ of rebellion. 
 
 The CoMJtONWEALTH OF ViKRINIA, /o f/tc sllCI'iff oj ■ COU'lUl/ 
 
 greeting : 
 
 Whereas by public proclamation made in our behalf by the sheriff 
 
 of in divers places in that county, by virtue of our writ to 
 
 him directed, C. P. hath been commanded, upon his allegiance, 
 to appear before us in our circuit court of county, at a cer- 
 tain day now past ; yet he hath manifestly contemned our com- 
 mand, therefore we command you to attach or cause the said C. 
 P. to be attached, wheresoever he shall he found within our said 
 commonwealth as a rebel and contemner of our said laws, so as 
 you have him or cause huu to be before us in our said circuit 
 court on the first day of the next term to answer to us as well 
 touching the said contempt as also such matters as shall be then 
 and there objected against him, and fui'ther to perform and abide 
 such order as our said court shall make in this behalf and hereof 
 fail not. AVe hereby also strictly command all and singular, 
 mayors, sheriffs, bailiffs, constables and other our officers and the 
 good citizens of this commonwealth that they by all pr'oper 
 means diligently aid and assist you in all things in the execution 
 nf the premises. And have then and there this writ. 
 
 Witness, J. E., clerk of our said court at the county of , 
 
 this day of and intlio year of the commonwealth 
 
 of Virginia. 
 
 •J. E., Clerk. 
 
 Endorsed. — For not appearing to answer [or for not answering) 
 the bill of complaint exhibited against him by C. D. 
 
 4. Order for Sergeant at Arms. 
 
 A. B. Plaintife v. C. D. Dependant. 
 
 Whereas the said defendant hath sat out all process of contempt 
 to a commission of rebellion for want of his answer to the plain- 
 tiff's bill, and it appearing by the certificate on the commission of 
 rebellion heretofore awarded that the said defendant doth abscond 
 himself so that he cannot be taken thereupon, it is therefore or- 
 dered upon the motion of , the plaintiff's counsel, that the 
 
 Sergeant at Arms, attending this court,''''' do apprehend the said 
 defendant and bring him to the bar of the said court to answer 
 the said contempt. 
 
 * If the sufTgestion subsequently made (p. 417. j be adopted, here, instead 
 
 of words italicised, say, " the sheriff of county, who is the officer in 
 
 attendance in this court, and authorized and required by the statutes of 
 Virginia to execute its process, and who is hereby appointed a Sergeant at 
 Arras for the purpose." 
 
 35* 
 
416 MESNE PROCESS 
 
 5. Writ of Sequestration. 
 
 The Commonwealth or Virginia, to tlie sheriff of county, 
 
 greeting : 
 
 Whereas in a suit now pending in our Circuit Court for 
 
 the county of ^between W. F., plaintiif, and J. F., defendant, 
 
 process of contempt has been issued against the said J. F. for his 
 contempt in refusing to file an answer to the bill in equity ex- 
 hibited against him in the said court by the said W. F. Know 
 ye, therefore, that we in confidence of your prudence and 
 fidelity, have given, and by these presents do give to you or 
 any two or more of you full authority and power to .enter 
 into all messuages, lands, tenements and real estate of the said 
 J. F. whatsoever, within the district of our said Circuit Court, and 
 to take, select, receive and sequester into your hands not only all 
 the rents and profits of his said messuages, lands, tenements and 
 real estate, but also all his goods, chattels and personal estate 
 whatsoever within the district aforesaid, and therefore we command 
 you, or any two or more of yon, that you do at certain proper and 
 convenient days and hours go to and enter upon all the messuages, 
 lands, tenements and real estate of the said J. F., and that you 
 do collect, take and get into your hands not only all the rents and 
 profits of his said real estate, but also all his goods, chattels and 
 personal estate, and detain and keep the same in sequestration in 
 your hands until the said J. F. shall answer the said bill and do 
 what our said court shall direct. And how you shall have exe- 
 cuted this precept make known to the judge of our said court on 
 
 the day of the next term. And have then and there this 
 
 writ. 
 
 Witness, J. E., clerk of the said Circuit Court in the county 
 of this day of and in the year of the Com- 
 monwealth of Virginia. 
 
 J. E., Clerk. 
 
 There is no provision in our statutes expressly or even by im- 
 plicaition revoking, repealing or altering any of the steps in this 
 process as it was used at the time of the decision in Hook v. 
 Ross. The ' process of contempt' is recognised as in existence 
 in Virginia by the latest enactments affecting the subjects of this 
 process, (see Code of Virginia, chap. 172, sec. 47;) yet a ques- 
 tion presents itself in connection with the fourth of these 
 steps, which, in the present state of our statutes, is somewhat 
 difficult of solution, and may lead to an abandonment of this 
 process altogether, unless the aid of the legislature be obtained 
 to relieve the subject of this difficulty. Our law does not now 
 recognize iihe existence of such un officer as the ' Sergeant at 
 Arms' of the Court of Chancery. That office was abohsted by 
 the act found in 1 R. C, 1819, which authorised the ' Marshal' 
 
VIRCHNIA STATE COURTS. 417 
 
 to execute all the duties assigned theretofore to a Sergeant at 
 Arms. In turn, the office of Marshal of the Courts of Chancery 
 was abolished by the act passed April 16, 1831, (Supp. Kev. Co., 
 chap. 107, sec. 70,) and, in the main, by that act, all the duties 
 theretofore discharged by the marshals were confided to the sher- 
 iffs of the counties and the sergeants of the corporations. In the 
 main, we say, for we do not find that all the powers which the 
 marshal exercised were given to the sheriffs or the sergeants. On 
 the contrary, one essential ingredient for the due execution of the 
 fourth step in the process of contempt these oflScers lacked, and 
 that is — the power to execute process in any county within the 
 limits of the State, (a) That thi,s is essential — ^that the writ of 
 sequestration should not issue until a return of non est inventus 
 by an officer whose powers (at least quoad the process of a Ser- 
 geant at Arms) were co-extensive with the limits of the State, is, 
 we think, certain, and this conclusion is based both upon the posi- 
 tive dictum of judge Tucker in Hook v. Eoss and the manifest 
 hardship which an opposite opinion would operate on parties 
 whose property might be sequestrated without such a i-eturn. If 
 this be true, what course should bo taken to avoid the difficulty ? 
 Will the coui-ts of Virrinia specially appoint such an officer as 
 that contemplated, and, indeed, required, for the due execution 
 of this process ; or will they abandon their right to enforce in 
 this form obedience to their mandates ? One or the other of thes^ 
 courses they must adopt, and, in the absence of positive legisla- 
 tion on the subject, it would, perhaps, be better to pursue the 
 former, (liable as it may be to the charge of usurping powers not 
 properly appertaining to the courts,) than to adopt one which 
 would strip them to no little extent of the authority to compel 
 obedience to their decrees. If this suggestion were acted on, 
 then the difficulty might be removed by the appointment of the 
 sheriff as a special officer of the court to execute the fourth step 
 in this process, authorizing him as a special Sergeant at Arms, 
 messenger, or by any other name, to serve the process in any county 
 of the State. The return of non est inventus by such an officer, 
 if the regularity of his appointment were not successfully at- 
 tacked, would be a sufBcient foundation on which to base the 
 issue of a writ of sequestration. The subject, in the present 
 state of our laws, to say the least, presents, in any point of view, 
 an embarrassing question, and it would be well if the legislature 
 passed an act authorizing our present sheriffs or sergeants to per- 
 form all the duties in connection with the process of contempt 
 formerly discharged by a Sergeant at Arms. This would relieve 
 the Virginia courts of every difficulty, and it seems to be demanded 
 
 fa) It has never tfeen contended, so far as the writer has been able to dis- 
 cover, that sheriffs or constables had the power to execute this process 
 without the limits of their respective counties or corporations. 
 
418 MESNE PROCESS, AC. 
 
 in order that these courts may compel a due and faithful compli- 
 ance with their decrees as ivell as require contumacious defend- 
 ants to appear and answer bills in equity which may be exhibited 
 against them. 
 
 Process of contempt against a Corporation. 
 
 See preceding volume, section 86, and note 27 subjoined to 
 that section. 
 
 The foregoing forms of process of contempt with the comments 
 thereupon, are intended to apply to tbe practice in the Virginia 
 State Courts. In the United States Circuit Courts, the process 
 subsequent to the issuing of a subpoena (as against a person) is 
 prescribed by the 7th rule of United States Supreme Court found 
 on p. 221 ante. See also 18th rule of United States Supreme 
 Court, p. 223 ante. In the case of a corporation, a distringas 
 should issue after the subpoena. The forms hereinbefore contain- 
 ed may be readily adapted to the practice in tjie United States 
 Circuit Courts. 
 
VIII. 
 
 Depositions in the United States Circuit Courts and in the 
 Virginia State Courts. 
 
 IN THE UNITED STATES CIRCUIT COURTS. 
 
 See Book 1, chap. vi. of precedine volume, especially sec. 208, 
 217,224,231,232. 
 
 The folio-wing officers may take depositions to be vised in these 
 courts : 
 
 1. Any justice or judge of any of the courts of the United 
 States, (a) 
 
 2. The Chancellors, the Judges or Justices of the Supreme or 
 Superior Courts and the Judges of the County Courts or Courts 
 of Common Pleas of the several States, (a) 
 
 3. The Mayors or other chief Magistrates of cities in the sev- 
 eral States, (a) • 
 
 4. Commissioners appointed by the Courts of the United States 
 to take affidavits and acknowledgments of bail. (6) 
 
 5. Notaries Public in the several States and Territories of the 
 Union, (c) 
 
 The usual coui-se fidopted in taking testimony in these 
 courts is the one prescribed by the 67th rule of United States 
 Supreme Court, mentioned in sec. 208 of preceding volume. 
 After the cause is at issue commissions are obtained from the 
 clerk by both parties jointly or severally by either vipon inter- 
 rogatories filed in the clerk's office, and ten days notice thereof 
 given to the adverse party to file cross interrogatories before the 
 issue of the commission. 
 
 The framing of interrogatories will of course depend upon the 
 facts in such case. The 71st rule of the Supreme Court of the 
 United States, however, prescribes the form of concluding inter- 
 rogatories which should be as follows : (see page 230, Ante.) 
 
 [a] Acts of Congress, 1789, chap. 30, sec. 30. 1 Story's Laws U. S , p. 
 64. See LXVIII Rule Supreme Court U. S., ante p- 23"5. 
 (4) Acts of Congress 1812, chap. 25, sec. 1. 2 Story's LawsU. S.p. 1214. 
 (f) Acts of Congress 1853-4, p. 315. 
 
420 DEPOSITION'S 
 
 Upon taking out a separate commission the notice to the adverse 
 party as before-mentioned, is as foUo-ws: 
 
 ^0. 1. .mUce. 
 
 To A. B. AND C. D., Take notice tliat in tlie suit depending in 
 the Circuit Court of the United States for the — «— of , where- 
 in I am plaintiff and you are defendants, I have, agreeably to 
 tlie 07th rule of the Supreme Court of the United States, pre- 
 scribed for the use of the Circuit Courts of the United States, 
 
 filed interrogatories to be propounded to -witnesses in my 
 
 behalf, and wiat on the day of — ^ — I shall apply for a com- 
 mission to take the depositions of said witnesses as the rule pre- 
 scribes, and meanwhile you are at liberty to appear in the clerk's 
 ofBice of the court and file cross interrogatories to be propounded 
 to the said witnesses. 
 
 Yours, respectfully, 
 
 J. K. 
 
 If cross interrogatories be filed, the clerk should enclose with 
 the commission both the interrogatories in chief and cross inter- 
 rogatories to be propounded to witness. If no interrogatories be 
 filed, the commission -will issue exparie. The following is the 
 form of the commission ineither case : 
 
 Jfo. 2. Commission. 
 
 The Presidfnt of the. UnitA) States of America, to , 
 
 Oreetinff : [a) 
 
 Know ye that in confidence of your prudence and fidelity, and 
 by these presents, you [or any two or more of you] are in- 
 
 ^vested with full power and authority to examine on his 
 
 corporal oath as a witness in a suit depending in the Circuit 
 
 Court of the United States for the , wherein J. K. is plaintiff 
 
 and A. B. and C D. are defendants, on the part of the upon 
 
 the interrogatories annexed to this commission ; and therefore you 
 are hereby commanded that you [or any two or more of you] at 
 certain days and places to be appointed by you for that purpose, 
 do cause the said ■ — — to come before you, and then and there ex- 
 amine them on oath [upon the said interrogatories] and that you 
 take such examination and reduce the same into writing and re- 
 turn the same annexed to this writ, certified, under your seal, 
 [or under the seals of two or more of you] unto the said Circuit 
 , Court before the judges thereof with all convenient speed. 
 
 Witness, R. B. T., Chief Justice of the Supreme Court of the 
 
 fnj See sp'^iion 208. pi-pfeiling volnme, ns to naming: of commissioners. 
 
UNITED STATES COURTS. 421 
 
 United States in tlic said court this day of in the yeai- 
 
 of our Lord and of our independence the . 
 
 P. M.. Clerh. 
 
 lu pursuance of this commission the depositions will be taken 
 and returned to the clerk, certified and sealed as its terms direct. 
 (See form of depositions, No. 7 post.) 
 
 _ Sometimes, as stated in section 209 of preceding volume, par- 
 ties to suits in equity in the United States Circuit Courts, agree 
 that the testimony may he taken upon oral interrogatories by the 
 parties or their agents. Of course the commission is issued in 
 such cases as in otners. In the form of the commission, however, 
 the words in preceding form having reference to written inter- 
 rogatories should be omitted. 
 
 Testimony in the United States Courts may, in the discretion 
 of the courts, upon the request of either party, be ordered to be 
 taken by depositions and in confdirmity vrith the regulations pre- 
 scribed by law for the courts of the highest original jurisdiction, 
 in equity, in oases of a similar nature in that State in which the 
 Court of the United States may bo holden. (See section 213 of 
 preceding volume.) And by the Act of Feburary 20th, 1812, sec. 3, 
 it was enacted that in any cause before a Court of the United 
 States it should be lawful for such courts in its discretion to admit 
 in evidence any deposition taken in perpeinam rei memoriam 
 which would be so admissible in a court of the State wherein such 
 cause is pending according to the laws thereof. 
 
 -De hene esse. — Depositions may be also taken de bene esse in 
 these courts before the parties are at issue under the 70th rule of 
 the U. S. Supreme Court, page 236, ante. To comply with the 
 requirements of this rule the following steps are necessary : 
 
 1st. An affidavit that the plaintiff's witnesses are aged, or in- 
 firm, or going out of the country, or that the witness he wishes to 
 examine is a single witness to a material fact. 
 
 2nd. That a commission issue by the clerk directed to such 
 commissioner or commissioners as the judge of the court may di- 
 rect. ' 
 
 3d. A notice to adverKu party of time and place of taking 
 deposition of witness or witnesses. 
 
 4th. The deposition. 
 
 JVb. 3. (') Affidavit. 
 
 L'ciRPOKATIO.V (l|! Col NTV OF — . 
 
 A. B. thi.s day jippeaveil Jjefore uil', &u., {/ii:i\- desi-rilie cliaiuc- 
 //■r rif ojUicer (idministeiiiii/ oat/i.) in said rurporation or county, 
 and'made oath that B. ^V. and C. H., witnesses in his behalf in a 
 
 certain suit pending in Court of wherein X_. Y. and Z. 
 
 are defendants, are aged and infirm (orgoingout of this country,) 
 
422 DEPOSITIONS 
 
 (or that the said B. W. is a single witness on his behalf to a ma- 
 terial fact in support of his claim preferred in said suit, and that 
 C. H, so aged or infirm, &c.) 
 
 Given under my hand this day of . 
 
 (Signature.) 
 
 JVo. 4. (") Commission. 
 
 [The form oi^ commission issued in this case Tvill bo identical 
 with that in other cases, with these exceptions ; the names of the 
 commissioner or commissioners should be inserted in it, and it 
 should specify that the examination of the witness or witnesses 
 will be taken de bene esse.] 
 
 (=■) J^'otice. 
 
 The notice found on page 420 ante may be readily adapted to 
 this case. . 
 
 JV'o. 5. (*) Deposition, 
 
 Be it remembered that on the ■ day of at in pur- 
 suance of the commission hereto annexed, we A. B. and N. H., 
 the commissioners therein appointed, proceeded to execute the 
 said commission by taking the examination of B. W. and P. H., 
 to be read in evidence de bene eses in a suit, &c. (Here recite style of 
 Suit and court in which it is pending.) 
 
 The said B. W. being by us carefully examined, and cautioned, 
 and duly sworn (or affirmed) to testify the truth, the whole truth 
 and nothing but the truth saith, &o. (Here state clearly every 
 pertinent declaration of the witness and his reply to questions 
 put by or at the instance of either party or by counsel, and at the 
 close of examination let the witness sign it.) 
 
 The said C. H. being carefully sworn, &c., (as before in the ex- 
 amination of B. V.) 
 
 We further certify that the preceding depositions were reduced 
 to writing by one of us {or by the said witnesses in our pres- 
 ence) and signed by the said B. W. and C. H., and that we are 
 not of counsel or attorney for either of the parties in the said 
 suit, nor are we interested in the event thereof. 
 
 A. B. > „ 
 N H I (commissioners. 
 
 Note. — Transmit depositions by mail or othenvise, enclosing commis- 
 sion. See sec. 211 preceding volume. 
 
 Jfo. 6. Deposition de bene esse under acts of Congress. 
 
 Be it remembered that on the day of , at A. B. 
 
 personally appeared before me J. S. a commissioner appointed 
 under the laws of the United States, to take affidavits and ao- 
 
UNITED STATES COURTS. 423 
 
 knowledgments of bail, (oi-, as the case may be) and made oath, 
 (or, if the application is made by another in behalf of the party 
 on an affidavit made by such party, before a judge of t^ United 
 States or commissioner elsewhere, then say, application was made 
 to me J. S. do, vpoii the affidavit of A. B. stating,) that he the 
 said A. B. was plaintiff in a suit then depending in the Circuit 
 Court of the United States, for the Circuit and Dis- 
 trict of ■ wherein C. D. was defendant, that the testimony of 
 
 E. F. of mariner, was material and necessary for him the 
 
 said defendant in the prosecution of such suit, and that he the 
 
 said E. E., lived at more than one hundred miles from , 
 
 where the court, at which he the said defendant expected the said 
 cause would be tried, was appointed by law to be held, (or other- 
 wise as the case may be, according to the affidavit) : that C. D., 
 
 the above named defendant, resided at about miles 
 
 from 'aforesaid ; and that G. II., his attorney, resided at 
 
 alDout miles from aforesaid : And the said A. 
 
 B. requested me, (or I was requested in behalf of the said A. B.) 
 that the said E. F. might be examined according to the directions 
 of the acts of congress in such case made and provided. 
 
 Whereupon I ordered that the said E. F. should be examined 
 de bene esse before me at [and that days notice 
 
 should be given to the said G. D. (or G. H.) of such examination, 
 to the end, that he might if he should see fit, be present at the 
 examination and put interrogatories ; and I having satisfactory 
 proof that such notice had been given {a)] and as well the said A, 
 B. as the said C. B. (or, if the defendant does not appear in per- 
 son, or by attorney, then say, the said A- .B.) appearing before me 
 :it on this day of I have therefore pro- 
 
 ceeded with the said examination. •• 
 
 And the said E. F. being carefully examined and cautioned, 
 and duly sworn (or affirmed,) to testify the whole truth and 
 nothing but the truth, saith, &c. [staling clearly every pertinent 
 declaration of the witness and his replies to the questions put by, or 
 at the instance of either party.) And I do further certify, that 
 the preceding deposition was reduced to writing by me, (or by the 
 said E. F. in my presence,) and signed by the said E. F. and that 
 I am not of counsel or attorney for either of the parties to the 
 said suit, nor am I interested in the event thereof. J. S. 
 
 PRACTICAL NOTE. 
 
 In proceeding under the act of Congress, Conkling lays down the follow- 
 ing as the practice which.should be followed. Tile first step in the proceed- 
 
 (a) If both the opposite party and his attorney reside more than one hun- 
 dred miles distant, and no notice is on that account given, the part inchided 
 in brackets is of course, to he omitted. 
 
 36 
 
424 DEPOSITIONS 
 
 ing is to apply to some one of the officers authorized to take deposition, be- 
 fore whom the witness can most conveniently be brought, to take the depo- 
 sition, upon an affidiwit setting forth the grounds of the proceeding;, so aa 
 clearly to bring the case within the provisions of the act : and in order to 
 enable the officer to determine whether a notice to the opposite parly, or 
 his attorney if he has one, is required, (which it will be recollected is the 
 case when either .the parly or his attorney, resides wilhin one bundled 
 miles of the place of caption) the affidavit should slate the residence of the 
 party and of his attorney. Having obtained an order for the examination, 
 serve a notice of the lime and place appointed lor that ,<urpose, (if tliecast; 
 requires it,) upon the opposite party or his attorney, as the case may be. 
 When notice is required, the ofticer i;ani]ot proceed to examine the witness 
 without proof of its service. If the person to be examined refuses to at- 
 tend voluntarily, he may, in the language of the act, " bo compelled to ap- 
 pear and depose in Ihe same manner as to appear and testify in court.'' — 
 
 JVb. 7. Depositions under Glik rule U. S. fiupreme Cowl 
 after cmise is at issue. See sec. 209 of preceding volume. 
 
 Tlic depositiouM of A. B., 0. \). uud others duly taken before 
 me, J. S., a commissioner duly appointed under tlie laws of tlic 
 United States, to take affidavits and acknoTvledgments of bail, &c-.. 
 {or as the case may be) pursuant to a commission and uoticf 
 
 hei'eunto annexed, on the day of , between the hours 
 
 of A. M. and P. M,, at the office of in the city 
 
 of , to be road as evidsnce in behalf of the plaintiffs in a cer- 
 tain suit in equity depending in the Circuit Court of the United 
 
 States for the , whereni J. B. and y.l. E. are plaintiffs and 
 
 C. A. and 0. P. are defendants ; the interrogatorie.s and cross in- 
 terrogatories propounded to the t.aid witnesses being the same 
 enclosed with the commission aforementioned to me as commis- 
 sioner as aforesaid (or as the case may be.) 
 
 A. B., one of the said witnesses being caroiully examined, and 
 cautioned, and duly sworn (or affirmed) to testify tlie truth, the 
 whole truth and nothing but the truth, deposeth and saith as foL: 
 lows, in answer to the several interrogatories in chief: 
 
 To the iirst interrogatoi-y in chief he say.s that. &e. (Here use 
 the language of the witness.) 
 
 To the second interrogatory in chief he .says (hut. itc. (As 
 before.) 
 
 [And so on to the end of interrogatories in chief.] 
 And in answer to the several cross interrogatoric.?, he .siiys : 
 To the first, that &o., (using language of witness.) 
 To the second, that, &c., (as before, and so on to the end.) And 
 further said witness saith not. 
 
 A. B. 
 
UNITED STATES COUKTS. 425 
 
 The witnesses C. D., E. F. and G. H., not yet being examined 
 and the hour of adjournment for these depositions having arriyed, 
 the taking of the same is, pursuant to the notice hereto annexed, 
 adjourneii and continued until to-morrow, at the same place and 
 between the same hours. 
 
 •T. S.. Commissioner {or, a? the case may be.) 
 
 —18 . 
 
 Office of , between Ihe hours of A. M. and P. M. 
 
 The witness, C. D., l>oing carefully examined and cautioned 
 and duly sworn (or affirmed) to testify the truth, the whole truth 
 and nothing but the truth, deposeth and saith as follows : In an- 
 swer to the seyeral interrogatories in chief (as before to the end.) 
 
 County, to wit : 
 
 1, J. S., a commissioner, [or, as the case may be,) &c., to whom 
 the annexed commission was directed, do hereby certify that the 
 foregoing depositions were reduced to writing by me [or by the 
 said witnesses in my presence) and signed by the said A. B., 0. D., 
 &o., and that the several proceedings therein mentioned were duly 
 had and taken before me at the times and place mentioned therein ; 
 and I do further certify that I am not of counsel or attorney for 
 either of the parties to the said suit, nor am I interested in the 
 event thereof. 
 
 Witness my hand and seal [of ofBce] this day of 
 
 J. S., Commissioner [or, as the case may be.) 
 
 It is not necessary to give the form of depositions taken under 
 a dedimus potestaiem under the act of Congress, or of depositions 
 inperpetuam rei menioriam. The forms already given may be 
 easily adapted to such cases. 
 
 PRACTICAL NOTES. 
 
 See p. 302, 303, 307, and note p. 422, ant^. 
 
 To compel attendance of witnesses, &c., see sec. 224 preceding volume. 
 See form of subpceun, ante p. 409 and adapt it to tlio cases mentioned in 
 1st and 2nd sections of statute. 
 
 IN' VIRGINI.V STATE COURTS. 
 
 See Book 1, chap, vi., preceding volnnip. especially sec 2lii, 
 223,225,228,231,242. 
 
 See preceding volume, sec. 222, as to offieers authorized to take 
 depositions in these courts. 
 
426 
 
 DEPOSITIONS 
 
 JVb. 1. Commission io be used when miness out of State, (a) 
 
 The Commonwealth of Virginia, to A. B., a iiotary public for the 
 county of in the State of , (h) greetinc/ : 
 
 Know ye, that trusting to your fidelity and provident circum- 
 spection in diligently examining N. H., R. B. and C. D., witnesses 
 in behalf of M. B. in a suit dependingin our court for the county 
 
 of , wherein the said M. B. is plaintiff and X. Y., 0, P. and 
 
 Q. N. are defendants, we request and empower you that on such 
 day and such place as you shall appoint, to call and cause to come 
 the witnesses aforesaid before you, and them diligently examine 
 on the Holy Evangelists of Almighty God, and their examination 
 into the said court distinctly and plainly, without delay, you send 
 and certify enclosed, returning also this commission. 
 
 Witness, P. R., clerk of our said court, at Richmond City, this 
 day of 18 , and in the year of the Indepen- 
 dence of the United States of America. 
 
 P. R., Clerk. 
 
 JTo. 2. JTotice. (c) 
 To C. D. AND R. S. : 
 
 Take notice that we shall on the day of , at the 
 
 office of H. and S., in the city of Richmond, between the hours 
 of 6 A. M. and P. M. of that day, proceed to take the deposi- 
 tions of R. G. and others, to be read as evidence in our behalf in 
 a certain suit in equity depending in the Circuit Court for 
 the County of Henrico, wherein j-ou are plaintiffs and we are 
 defendants : and if, from any cause, the taking of the said de- 
 positions bo not commenced on that day, or, if commenced, be not 
 concluded on that day, the taking of the same will be adjourned 
 and continued from day to day, or from time to time, at the same 
 place and between the same hours until the same shall be com- 
 pleted. Respectfully yours, 
 
 A. B., 
 D. L. 
 
 JVo. 3. Caption of depositions, adjournment, Sfc. 
 
 The depositions of R. O. and others, taken before me, A. H. S., 
 a notary public (or Justice oj' the peace) for the city of Bich- 
 
 (a) A notice in this case is necessary as in others. See notice, No 2. 
 
 (1>) -See sec. 223 of preceding volume. 
 
 (c) This notice should be given whether deposition of witness be taken 
 in or out of the State. When a party on whom notice to take deposition 
 should be served is not a resident of Virginia, notice may be served on his 
 counsel if the time between the service of ni.tice and taking of the deposition 
 be sufficient for conveying by ordinary course of mail, a letter from the place 
 oi service to the place of residence of the party, and a reply from that place 
 back to the place of service and the^i for the counsel to attend at the place 
 of taking the deposition. See Sess. Acts. IS.W, p. 76. 
 
VIRGINIA STATE COURTS. 427 
 
 mond, pursuant to notice hereto annexed, at the office of H. and 
 
 S. in the city of Richmond, on the day of , between 
 
 the hours of 6 A. M. and 6 P. M., to be read as evidence on be- 
 half of A. B. and D. L. in a certain suit in equity depending 
 in the Circuit Court for the County of Henrico, wherein C. D. 
 and R. S. are plaintiffs, and the said A. B. and D. L. are defend- 
 ants. 
 
 Present: A. A. M., counsel for plaintiffs. 
 J. M. P., counsel for defendants. 
 
 R. G., being duly sworn on the Holy Evangelists of Almighty 
 God, deppseth and saith as follows : 
 
 1st question by J. M. P., counsel for defendants. What is 
 your age? 
 
 Answer. 
 
 2d question by same. Do you know the parties to this suit? 
 
 Answer. 
 
 [Continue the questions until conclusion of examination in 
 chief as above, and, in every instance, write the answers of wit- 
 ness, using his words ] 
 
 Cross-examined. 
 
 1st question by A. A. M., counsel for plaintiffs. (Write ques- 
 tions and answers as before.) 
 
 Re-examined. 
 
 3d question by counsel for defendants. Are you &c., &c.? 
 
 Answer. I am, &c., &c. 
 
 And further this deponent saith not. 
 
 R. G. 
 
 No other witness appearing, the further taking of these depo- 
 sitions is continued until to-raorrow, at the same place and be- 
 tween the same hours. 
 
 A. H. S., K. P. (or, J. P.) 
 
 day of 18 . 
 
 Present : A. A. M;, counsel for plaintiffs. 
 J; M; P., counsel for defendants. 
 K. M., being duly sworn on the Holy Evangelists of Almighty 
 God, deposeth and saith as follows : 
 
 1st question by counsel for defendants. (Write down ques- 
 tions and answers as in deposition of R. G.) 
 
 K. M. 
 
 State oj- Virginia, 
 
 City of Richmond, to vnt : 
 I, A; H. S., a notary public (or justice of the peace) for the city 
 aforesaid, in the said State, do hereby certify that the foregoing 
 36* 
 
428 DEPOSITIONS, &c. 
 
 depositions were duly taken, sworn to and subscribed before me 
 at the times and place mentioned therein: 
 
 Given under my hand this day of , 18 :(a) 
 
 A, H; S;, N. P. (or, J. P.) 
 
 JVo. 4. Form of summons requinng attendance of witnesses. 
 
 The Commonwealth of Vikginia, 
 
 To the SJieriff of the City of Richmond, Greeting : 
 We command you that you summon R. G;, L. M. and N. 0., 
 to appear at the office of II. and S. in the city of Richmond, on 
 day of , before A. H. S., a notary public for the 
 
 said city duly commissioned and qualified (or a Justice ofthepeace 
 for said city,) to testify and the truth to speak on behalf of A. B. 
 and D. L. in a matter of oontroTersy pending in the Circuit Court 
 for the County of Henrico, between C. D. and K; S., plaintiffs, 
 and the said A. B. and D. L:, defendants: And have then there 
 this'writ. 
 Given under mj' hand this day of , 18 
 
 A. H. S., N. P. {or, /. P.) 
 
 JVo, 4. Report of non-attendance of witnesses. 
 
 To the Court for the City of Richmond : 
 
 N. 0., who was duly summoned to appear before me, A. H. S., 
 a notary piMic (or jtistice of the peace) for the city aforesaid, on 
 the day of , at the office of H. and S. in said city, to 
 
 testify and the truth to say on behalf of A. B. and D. L. in a 
 matter of controversy pending in. the Circuit Court for the Coun- 
 ty of Henrico between C. D. and R. S., plaintifis, and the said 
 A. B. and D. L., defendants, has failed to attend at the time and 
 place required, and I am requested to report the fact to this 
 court that proper means may be used to compel the attendance 
 of the said witness. 
 
 Respectfully reported, 
 
 A. H. S., N. P.. (or/. P.) 
 
 PRACTICAL NOTES. 
 
 Eminent counsel have doubted the correctness of the statement ijisisi- 
 mis verbis made in section 220, to wit : that depositions may be taken be- 
 fore the parties are at issue. They think that the plaintiff alone has the 
 right to examine witnesses before the defendant has appeared and pleaded 
 or answered. Two of the judges of the Circuit Courts of Virginia nave de- 
 cided otherwise and sustain the principle announced in that section and in 
 the note thereto. Tlie question has not been determined by the Supreme 
 Court of Appeals of Virginia. 
 
 (a)Ithas been the practice in Virginia when depositions are taken by no- 
 taries, for the notaries to annex their seal. This is not required by the 
 statute, A certificate under the hand of the notary is sufficient. 
 
IX. 
 
 Orders and Decrees in the United States Circuit Courts 
 and in Virginia State Courts. 
 
 IN tTNITED STATES CIRCUIT COURTS. 
 GENEKAI. FORMULA. 
 
 The formal part of decrees in these courts has already been 
 set forth in preceding Tolume, section 249 ; this formal part should 
 precede the forms hereafter given, when to be used in these 
 
 courts. 
 
 Decree for account. 
 
 The court doth order and decree, that it be referred to Mr. E. 
 one of the Masters of this Court, to take a mutual account of all 
 dealings and transactions between the plaintiff and the defendant, 
 to the better clearing of which account, the pa~ ies are to pro- 
 duce, &c. {hooks, documents, &c., &c., &c.,) as the said Master 
 shall direct, who, in taking of the said account, is to make unto 
 the parties all just allowances, and what, upon the balance of the 
 said account shall appear to be due from either party to the other, 
 is to be paid as the said Master shall direct. And it is further 
 ordered, that the injunction formerly granted in this cause, for 
 stay of the defendant's proceedings at law, be in the mean time 
 continued, and the defendant's judgment is to stand a security 
 for payment of what, if any thing, shall appear to be coming to 
 him on the balance of the said account ; and the court doth re- 
 serve the consideration of the costs of this Suit, and of all further 
 directions, until after the said Master shall have made his report, 
 when either side is to be at liberty to apply, &c. 
 
 Order granting injunction in case of copyright. 
 
 Tliis court dotii order that an injunction be awarded to restrain 
 the defendant, his servants, agents, or workmen, from printing, 
 publishing, selling, or otherwise disposing of the book in the bill 
 mentioned to have been published by the defendant, until the said 
 defendant shall fully answer the plaintiff's bill, or this court 
 make other order to the contrary. 
 
430 ORDERS AND DECREES 
 
 Decree for perpetual injunction restraining infringement 
 of copyright. 
 
 It is ordered, &c. that the injunction formerly granted in this 
 cause for stajr of the defendants, their servants, agents, or work- 
 men, from printing, ptiblishing, or vending,' a book, comedy, or 
 farce, called " Love a,-la-mode," or any part thereof, be made per- 
 petual. And the plaintiff •waiving the account prayed by the 
 bill, the court doth not think jiit to direct any account. And it is 
 further ordered, that the defendants do pay to the plaintiff his 
 costs of this suit, to be taxed, &c. 
 
 Decree for perpetual injunction to restrain infringement of 
 cc^yright and for payment of profits. 
 
 Upon the coming in of the Master's report, and on motion of 
 the complainant's counsel, it is ordered and decreed by the court, 
 that the said report be confirmed and established, and that the 
 said defendant B. and his agents and servants be perpetually en- 
 joined from making, using, or vending to others to be used, any 
 one ^r more locks substantially the same in mode of operation as 
 the lock described in the letters patent in the said bill of com- 
 plaint mentioned, 
 
 Aud the court doth further order and decree that the said de- 
 fendant B., do forthwith pay unto the said complainant Allen, the 
 sum of eleven thousand seven hundred dollars, being the amount 
 of profit found by the said Master's report to have been received 
 by the said B. and his copartner S., mentioned in the said bill of 
 complaint, from the sale of locks substantially the same in mode 
 of operation, as the lock described in the said letters patent, in 
 violation of the exclusive right of the complainant, secured to 
 him by the letters patent aforesaid. And the court doth further 
 order and decree that the said defendant B. do pay to the said 
 complainant Allen the costs of this suit taxed at — ^ . 
 
 IX VIRGINIA STATE COURTS. 
 FORMULA OF DECREES. 
 
 Formula of decree in which gua)-dian ad litem assigned 
 infant defendants in court, his answer filed, Sfc. 
 
 A. B., (or, A.,B., an infant of tender years, by K. L., his next 
 friend, or, A. B., a feme covert, by R. L., her next friend,) and 
 0. H., plaintiffs, against M. B., J. W., R. K., L. C. and B. E., 
 (the two last infants under the age of twenty-one years,) defend- 
 ants. 
 
^v 
 
 VIRGINIA^ STATE COURTS. 431 
 
 R. N. {a) is assigned guardian ad litem to the infant defend- 
 ants, L. C. and B. R. to defend tlieir interests in this suit, and 
 thereupon the said R. N. as such guardian filed his answer to the 
 bill of the plaintiff, to which answer the plaintiff by counsel re- 
 plied generally and the cause coming on to be heard on the bill, 
 taken for confessed as to the defendant R. K., the answers of de- 
 fendants J. W. and M. B. and of the said guardian ad litem with 
 general replications thereto, on the exhibits and examinations of 
 witnesses, wag argued by counsel. On consideration whereof, the 
 court doth adjudge, order and decree, &o., &c. 
 
 Another formula in a case in which there are absent and 
 unknown defendants — and in which a guardian ad litem 
 has been assigned infant defendants at rules. 
 
 A. B., &c., (as before,) plaintiffs, against M. B., J. AV., L. C. 
 and B. R., (the two last named being infants under the age of 
 twenty-one,) by R. N., their guardian ad litem assigned to de- 
 fend them in this suit, M. P. .and the unknown heirs at law and 
 distributees of X. T., deceased, defendants . 
 
 This cause, in which the plaintiffs have proceeded against the 
 said M. P. in the mode prescribed by law against absent defend- 
 iiuts ; and as to the unknown heirs at law and distributees of X. 
 Y., deceased, in the mode prescribed by law against unknown de- 
 fendants, came on this day to be heard on the bill, the answers 
 of the home defendants, and of the infant defendants by their 
 guardian ad litem, R. N., assigned to defend them in this suit, 
 general replications to the said answers, exhibits and examina- 
 tions of witnesses, and was argued by counsel. On considera- 
 tion whereof, the court doth adjudge, order and decree, &c., &c. 
 
 Another formula in which bill has been taken for confess- 
 ed as to part of the defendants, answers of the remainder, 
 depositions, Sfc. 
 
 (Names of parties.) 
 
 This cause came on this day to be heard on the bill, taken for 
 confessed as to the defendants, B. M. and J. W., on whom pro- 
 cess had been duly served, they still failing to appear and plead, 
 answer and demur to the said bill ; on the answers of the de- 
 fendants L. W. and K. JI. , with general replications thereto, on 
 the exhibits and examinations of witnesses, and was argued by 
 counsel. On consideration whereof, the court doth adjudge, or- 
 der and decree, &o. 
 
 (a) The clerk of the court in which suit is pending- is ubuuUv aesigned 
 the guardian ad litem. A guardian ad litem m.ay be assigned in term time 
 as well as at rules. See Code of Virginia, chap. 171, sec. 16. 
 
432 ORDERS AND DECREES 
 
 Revival of suit against personal representative of one of 
 the defendants, against thereat representatives of another 
 and decree, (b.) 
 
 A. T)., plaintiff', vs. C. D., M. N. and otliorg, defendants. 
 
 The seirefacias awarded against E. Q., administrator de bonis 
 non with the will annexed of the defendant, C. K., deceased, re- 
 turnahle to this term, having been returned executed on the said 
 R. Q., administrator as aforesaid, and the said R. Q. failing to 
 shew any cause why this suit should not bo revived against him 
 in his character aforesaid, it is ordered that the same be revived 
 and henceforth be conducted against the said R. Q. as adminis- 
 trator de bonis non, with the will annexed of the said C. K., de- 
 ceased ; and it further appearing that the seirefacias awarded at 
 the last term against L. B., D. W. and N. 0., children and heirs 
 at law of the defendant, R. M., deceased, returnable to this term, 
 has been duly executed on the said L. B., D. W. and N. 0., and 
 they failing to shew any cause why this suit should not be revived 
 and prosecuted against them, as such children and heirs at law of 
 the said R. M., deceased, it is ordered that the same be revived and 
 henceforth be conducted against the said L. B., D. W. and N. 0. 
 as defendants to this suit ; and thereupon this cause coming on 
 to be heard, &c., &o., was- argued by counsel. On consideration 
 whereof, the court doth adjudge, &c., &o. 
 
 Formula of entry in case of friendly bill and answer, Sec. (a) 
 
 R. 'B., plaintiff, against C. W. and J. M., the last named an in- 
 fant under the age of twenty-one years, defendants. 
 
 This day came the plaintiff and filed his bill, and on his mo- 
 tion B. W. is assigned guardian ad litem to the infant defendant, 
 ■J. M. to defend his interests in this suit, and thereupon the said 
 guardian ad litem filed the answer of the said infant, J. M., to 
 the bill of the plaintiff, and the defendant C. W. filed his answer, 
 to which answers the plaintiff replied generally, and the cause 
 coming on to be heard upon tlie bill, the said answers, general 
 replications thereto, and exhibits, was argued by counsel. On 
 consideration whereof, the court doth adjudge, order and decree, 
 &c., &c. 
 
 (b) See precedinj!^ voluuio, sections 88, 89, 90. 
 
 (a) A l'riendl3| bill and answer is the well known title applied to a cause 
 in which there is no controversy between the parties, and when they each 
 desire the aid of the. court to hare some action taken which they cannot 
 take independently of its aid. Such a bill, to instance, is usunlly filed in the 
 oa?e of a sale of lands of person under disability. 
 
VIRGINIA STATE COURTS 433 
 
 DECREES FOE ACCOUNTS. 
 
 Decree for settlement of accounts. 
 
 (Names^of parties.) 
 
 This cause came on, &e., (as in formula preceding.) On con- 
 sideration ■whereof, the court doth adjudge, order and decree that 
 the defendant do render an account of the partnership in the bill 
 mentioned (or, an account of his dealings as, &c., in the bill men- 
 tioned) before one of the commissioners of this court, who is di- 
 rected to examine, state and settle the same, and make report 
 thereof to the court, with any matters specially stated, deemed 
 pertinent by himself, or which may be required by any of the 
 parties to be so stated. 
 
 « 
 
 Note.— A paity applying to a coun of Equity for an account, subjccta 
 himself through plaintiff to a decree lor a balance due from him to defend- 
 ant. Hill et al.i., ». Sutherland's ex'rs., 1 Wash. 128 ; Fitzgerald ex'r, i'. 
 Jones, 1 Munf. 150. See also Payne r. Graves, 5 Leigh 561. 
 
 Decree for settlement of administration and guardianship 
 accounts of an intestate, also for setfleinent of adminis- 
 tration account of intestate's estate v.nless administra- 
 tor will admit assets. 
 
 R. T. H. and Sarah E., his yiiili}, plaiuli(ri; against P. S. J., ad- 
 ministrator of M. T., deceased, who was administrator de bonis 
 non of S. W., deceased, and guardian of Sarah E, ^Y., T. R., L. 
 R. and R. C. M., defendants. 
 
 This cause, in which the plaintiilii appear Ij have proceeded 
 against the defendant, R. C. M., v/ho is out of this commonwealth, 
 in the manner prescribed by law against absent defendants, and 
 he still failing to appear and answer, came on this day to be 
 heard on the bill, which ha,s been lalceu for confessed as to all the 
 defendants, except M. T., the intestate of the defendant, P. S. J., 
 upon the answer of the said M. T., filed in his life time, with ge- 
 neral replication thereto, and the exhibits filed and was argued 
 by counsel. On consideration whereof, the court doth adjudge, 
 order and decree that the defendant P. S. J., administrator of M. 
 T., deceased, who was administrator do bonis non with the will an- 
 nexed of S. W., deceased, and guardian of Sarah R. W., do render 
 an account of the transactions of the said M. T. as administrator 
 as aforesaid, and also an account of the transactions of the said M. 
 T., as guardian as aforesaid, before one of the commissioners of this 
 court ; in rendering which accovint, the said defendant is required 
 t3 produce before the said commissioner all necessary papers and 
 vouchers in his possession or under his control, relating lo the 
 transactions of the said M. T. as administrator and guardian as 
 aforesaid, in order to enable the said commissioner to state the 
 said accounts. And the said commissioner is directed, in taking 
 
434 ORDERS AND DECREES 
 
 the said accounts, to regard as prima facie correct, Ijut liable to 
 -be surcharged and falsified by the plaintiffs, any settled accounts 
 of the said administrator and guardian, made under orders of a 
 court of competent jurisdiction and returned to and ordered to 
 be recorded by such court. 
 
 And unless the defendant P. S. J., administrator of M. T., de- 
 ceased, shall admit assets of his intestate in his hands sufficient 
 to satisfy any balances which may appear against his said intes- 
 tate's estate, upon the settlement of the accounts above directed, 
 then the court doth further adjudge, order and decree that the 
 said defendant render before t)ie said commissioner an account 
 of his own administration of the estate of the said M. T., dec'd. 
 
 All which account the said commissioner will examine, state 
 and settle and report to the court, with any matters specially 
 stated, deemed pertinent by himself, or which may be requjj-ed 
 by any of the parties to be so stated. 
 
 A notice of the time and place of taking the aforementioned 
 accounts to be published once a week for four suocessiye weeks 
 in some convenient newspaper shall be equivalent to pers.onal 
 service of such notice on the parties. 
 
 Decree overruling some exceptions to report, sustaining apart 
 of one of them and directing payment of balances found due 
 on settlement of administration and guardianship accounts. 
 
 (Names of parties.) 
 
 This cause came on this day to be again heard on the papers 
 formerly read, and the report of commissioner AV. made in pur- 
 suance of the interlocutory decree entered herein on the twenty- 
 third day of January, eighteen hundred and forty-nine, and upon 
 the exceptions of the plaintiffs and the defendant, P. S. -J., ad- 
 ministrator of M. T., deceased, returned with the said report, and 
 also upon the exceptions of the said defendant this day filed, and 
 the examinations of witnesses and exhibits filed since the former 
 hearing and was argued by counsel. On eon^jideration whereof 
 the court doth overrule all the exceptions of the plaintiffs to the 
 said report, and doth also overrule all the exceptions of the said 
 defendant P. S. J., administrator as aforesaid, except so far as 
 one of the said exceptions of the said defendant refers to aud 
 embraces the first item in special statement P., made by the com- 
 missioner at the instance of the said defendant, to wit : the item 
 of ninety-nine dollars and thirty-nine cents in the said special 
 statement, under date of the sixth day of January, eighteen hun- 
 dred and forty-eight, for provisions furnished the slaves Elvira 
 and Emily, as to which item and the interest thereon the court is 
 of opinion that the same should liavo been allowed as a credit to 
 the estate of the said M. T., deceased, and that the balance of 
 eight thousand four hundred aud eighty-three dollars and twenty- 
 eight cents, reported by the commissioner as due to the plaintiffs 
 
VIRGINIA STATE COURTS. 435 
 
 should be reduced by the said sum of ninety-nine doUavi and 
 thirty-nine cents, and tlie interest thereon amounting to five dol- 
 lars and ninety-five cents, leaving the sum of eight thousand three 
 hundred and seventy-seven dollars and ninety-four cents due, to 
 the plaintiffs on the thirty-first day of December, eighteen hun- 
 dred and forty-nine, for which, in the opinion of the court, they 
 are entitled to a decree, and the court confirming the said report 
 in all other respects, and it appearing therefrom by the special 
 statement E., made by the commissioner at the instance of the 
 said defendautP. S. J., administrator as aforesaid, thathe has assets 
 of his intestate in his hands sufiicient to satisfy this decree, the 
 court doth adjudge, order and decree that the defendant P. S, J., 
 administrator of M. T., deceased, do pay to the plaintiffs the said 
 sum of eight thousand three hundred and seventy-seven dollars 
 and ninety-four cents, with interest thereon to be computed after 
 the rate of six per centum per annum from the thirty-first day of 
 December eighteen hundred and forty-nine until paid, and their 
 costs by them about their suit in this behalf expended. 
 
 Decree for settlement of executorial or administration ac- 
 counts. 
 
 K. L. B. and M. E., his wife, and othevs, plainiiffii, against jV, 
 A., administrator of W. T,, deceased, (or executor of the last 
 will and testament of W.T,, deceased,) defendant. 
 
 This cause came on this day to be heard upon the biU, answer 
 and exhibits and was argued by counsel, on consideration whereof 
 the court doth adjudge, order and decree that the defendant, N. 
 A,, do render an account of his administration of the estate of 
 his intestate, W. F,, {or an account of his executorial transac- 
 tions as executor of the last will and testament of his testator, AV". 
 F„ deceased,) before one of the commissioners of this court, who 
 is directed to examine, state and settle the same and report the 
 same to the court witli^any matters specially stated deemed perti- 
 nent by himself or which may be required by any of the parties 
 to be so stated. 
 
 Decree for distribution of estate after return of commission' 
 er's report made under next preceding decretal order. 
 
 (Names of parties.) 
 
 This cause came on this day to be fully heard on the papers 
 formerly read, and the report of the commissioner, made in pur- 
 suance of the order of the 8th day of June, 1822, and was argued 
 by counsel. On consideration whereof, the court doth adjudge, 
 order and decree, that the defendant F. F. (a) do pay to the plaintiff, 
 
 ( a) A decree against an executor or administrator for a balance due on 
 his administration account ought not to be " that lie pay the same out of the 
 
 37 
 
436 ORDEKS AND DECREES 
 
 P. F., the sura of $96 32, with interest thereon from the 31st day 
 of December, 1822, until paid ; to R. F., executor of W. F., the 
 sum of ?5 31, with interest thereon from the same time until 
 paid ; and to R. F., D. B. F., N. F. each, and to H. G. and R. hie 
 wife, each, the sum of $62 57 cents with interest thereon from the 
 same time until paid; but the plaintiffs are not to have the benefit 
 of this decree until they shall enter into bond with sufficient se- 
 curity, in the clerk's office of this court, payable to the defendant 
 F. F., executor of F, M. F., deceased, in a penalty equal to double 
 the sums decreed to them respectively, with condition to refund 
 due proportions of any debts or demands which may afterwards 
 appear against the estate of his testator, and the costs attending 
 the recovery of such debts or demands. (6) And the court doth 
 further adjudge, order and decree, that the defendants, do pay to 
 the plaintiffs their costs by them about their suit in this behalf 
 expended, (c) 
 
 [And liberty is reserved to the infant defendants to show cause 
 against this decree, at any time within six months after they shall 
 respectively have attained their full age.] (r?) 
 
 NOTE. 
 
 The eouit cannot decree a distribution iu favor of persons not parlies to 
 the. canse; Sheppard's ex'or v Starke and wife, 3 Munf. 29. 
 
 estate in his hands to be administered" but as his own proper debt. Shep- 
 pard's executor vs. Starlie and wife, 3 Munf. 29. See Ikloore's executrix ra. 
 Ferguson, et als. 2 INIunf. 421, and Barr vn. Ban's administators, 2 Hen. and 
 Munf. 26. 
 
 ]?ut it is error to malte a personal decree against an administrator without 
 an account or admission of assets in his hands sufficient to satisfy the de- 
 cree. Wills' administrator, v. Dunn's administrator, 5 Grat. 384. 
 
 (■J^ Should clause requiringrefundingbondbeomitted, if itappear that such 
 omission was not intentional but the result entirely of inadvertence, an ap- 
 pellate court would not reverse the decree with costs for that omission alone; 
 but if in such case ibedecree in other respects was right, the court will affirm 
 it BO far as it goes, with costs to the appellee as the party substantially pre- 
 vailing and will proceed to make such further decree in relation to refund- 
 ing bond as the court below ought to have made. Handly v. Snodgrass 
 and als., 9 Leigh 484. See the following coses in relation to refunding bonds, 
 Stovall's executor «. Woodson and wife, 2 Munf. 303. Sheppard's execu- 
 tor V. Starke and wife, 3 Munf. 29. 
 
 (c) In a suit for distribution, though there is a decree lor the plaintiff, yet 
 t/" the administrator has been in no default he shall have costs. Eidson v. 
 Fontaine's admini-strator et als., 9 Grat. 286. 
 
 (d) This reservation not now necessary. See Code of Virginia, chap. 
 178, sec. 7. 
 
VIRGINIA STATE COURTS. 487- 
 
 PRACTICAL NOTES TO PKECEDINQ DECREES FOR ACCOUNTS, &C. 
 
 Accounts Gencraily. — Wlicn equity entertains jurisdiction in cases of 
 accounts, see Hiintei's exor. and als. v. Spotswood, 1 Wash. 145 1 Bland's 
 admr. v. Wyatta, 1 H. and M. 543; Hickman «. Stout, 2 Leigh 6; Sturte- 
 vant V. (ioodc, 5 Leigli, 83. When equity refuses to entertain jurisdiction 
 in such cases. See Randolph's ex'rs. v. Randolph and als., 2 Call., 537 ; 
 Smith 4) Marx, 2 Rand., 449; Poage v Wilson, 2 Leigh, 490; Basaett's 
 adm'r v Cunningham's adm'r, 7 Leigh, 402. 
 
 In an equity cause when a replication has been entered and afterwards 
 withdrawn, it is error for the court to order an account or to render a de- 
 cree until a new issue is made up. Clark v Tinsley's adm'r , 4 Rand., 250. 
 
 It is a general rule that when a party claims to charge another by virtue 
 of an account rendered, he must take that account altogether and not gar- 
 ble or falsify the same, unless he can surcharge and falsify it either by 
 showing errors in calculation or by showing from other testimony that it is 
 incorrect ; Freeland, &c., v Cocke's representatives, 3 Munf. 352. See 
 Waggoner v Gray's administrators, 2 Hen. and Munf, 603; but this rule is 
 altered in cases in which the party keeping the account holds some trust 
 or confidence for the faithful execution of which he is required to keep ah 
 accurate account. See Robertson and als. « Archers adm'r, 5 Rand, 319. 
 
 It is not sufficient in an account to charge balances of other accounts as 
 rendered and agreed : the accounts alleged to have been agreed must be 
 produced if in existence and proven as alleged, unless there be proof of 
 the defendants acknowledgment of the justice of such accounts or of his 
 promise of payment, Lewis' ex'or. v Bacon's legatees and als., 3 Hen. and 
 Munf,, 89. In this case a creditor kept an account current with his debtor 
 and also an interest account in wlrich he charged interest on the several 
 payments to the same period and charged in the account current the balance 
 appearing in the interest account. A balance being then struck and anew 
 account opened, in which interest was charged on that balance, thus con- 
 sisting of principal and interest, field to be compound interest and not al- 
 lowable. 
 
 An acknowledgment by feme covert is not sufficient to establish an account 
 against her husband, though it be for articles furnished her before her mar- 
 riage. Sheppard's ex'or. v Starke and wife, 3 Munf., 29. 
 
 An injunction is granted to a judgment, and an account directed between 
 the parties, credit ought not to be given to the plaintiff at law by the com- 
 missioner for certain items not exhibited to the jury, nor mentioned in the 
 answer, and which are prior to the commencement of the suit. Lipscomb's 
 adm'r. vs Littlepage's adm'r., 1 H. & M., 454. Account directed after a 
 purchaser at fraudulent sale refuses obedience to order of court requiring 
 delivery of slave. See McNew v Smith, 5 Grat., 84. 
 Accounts of Executors, Sfc. 
 
 The account of an executor having been settled by commisBioners ap- 
 
438 ORDERS AND DECREES 
 
 pointed by the court before which the will was proved, is not of course to 
 be referred again to a commissioner, on a bill to surcharge and falsify ; but 
 some evidence should be exhibited to that effect, or something improper in 
 the account should be disclosed in the answer ; otherwise such order of ac- 
 count should not be made, but the bill should b« dismissed. Willie et ux. 
 V. Venable's ex'or, 4 Munf. 369. 
 
 When the answer of a defendant executor, asserts a right affirmatively 
 in opposition to the plaintiff's demand the defendant is as much bound to 
 establish its assertions by indifferent testimony as the plaintiff is to sustain 
 his bill. It would be monstrous indeed, if an executor, when called on to 
 account, were permitted to swear himself into n -part of Ms testator^ s estaif. 
 Beclcwith v. Butler and als, 1 Wash. 225. 
 
 An executor's account rendered on oath is prima facie evidence of the 
 sums received by him for the estate of his testator, and of the times when 
 received. Cavendish v. Fleming; 3 Munf 198. 
 
 An executor is not to be charged with the debts due to the estate of his 
 testator, at the time when they became due, hut only at the time when he 
 actually received them, excepting such debts as are lost by his negligence 
 or improper conduct. Cavendish v. Fleming, 3 Munf. 198. lie is, save 
 when debts are thus lost, only chargeable with interest on his actual re- 
 ceipts. Ibid. 
 
 An executor or administrator may, with propriety, be credited for deduc- 
 tions made by him from accounts left by his testator or intestate, for collec- 
 tion ; it appearing that his course might have produced benefit to the estate, 
 the court not perceiving that^he could have had any interest in making the 
 deductions. McCall v. Peachi/s adm'r, 3 Munf. 288. 
 
 An executor or administrator is not chargeable specifically with tobacco 
 received by him, and not disbursed on account of his testator's estate, but 
 only with the price actually received for the tobacco, where that can be 
 ascertained; and where not, with the then current value thereof. Ihid, 
 
 Where an ex parte settlement of an administration account has taken 
 place before commissioners appointed by the court in which the executor or 
 administrator qualified ; if the legatees afterwards bring a suit in Chancery 
 for a new examination and selllenicnt of such account, the vouchers in sup- 
 port thereof, if they be not ostensible, should be presumed to have existed, 
 and the onus probandi thrown on the adverse party. Ibid. 
 
 In such case, if the vouchers or official copies of them be produced, the 
 plaintiffs may nevertheless controvert tlic articles intended to be justified 
 by them. Ibid. 
 
 An article ought to be allowed on the oath of the defendant, if it be of 
 such a nature that the expense probably must have been incurred, or tkat, 
 perhaps, a voucher for it could not have been procured; for example, 
 
VIRGINIA STATE COURTS. 439 
 
 mourning for the widow, midwife's fees, services performed by a negro car- 
 lienter, and the like. Ibid. 
 
 When a commissioner is stating accounts between executors and the 
 estate of their testator, if one of them who had for collection the evidences 
 of debt due the estate, which might have been collected by him, be dead, 
 hif representative can not object to his estate's being charged with those 
 debts unless the means be furnished the devisees of charging the surviving 
 executor therewith; Carter's Ex'or ». Cutting et «x., 5 Munf. 223, and in 
 such case each executor's private account with testator and with his co- 
 exKcutor, and all accounts that are necessary to make a just settlement of 
 the matters in controversy ought to be taken if requested, though not spe- 
 cifically put in issue in the cause. Ibid. 
 
 To make an executor answerable for paper money, at the scale of the 
 day on which he received it, is in general wrong ; but, if he hath charged 
 himself so, and pointed out no other mode of adjusting it, he shall be bound 
 by his own act. Grmiberry^s ex'or v. GranherrySt 1 Wash. 246. 
 
 Where an executor claims a sum of money advanced to him by his tes- 
 tator, in his lifetime, as a gift, and not a loan ; this claim will not be allowed 
 on the executor's oath, and slight circumstances ; especially (as in this case) 
 when the name of the executor is present to the testator's mind while 
 making his will and the object of his bounty. Ruth et al v. Owen»,i 
 Rand. 507. 
 
 An administrator is entitled to credit in his account as of the date of 
 division of estate for moneys expended in permanent improvements on the 
 real estate of the heirs. Jaclcson's adnCr v. JachiorCi heirs. 1 Grat. 143. 
 
 To ascertain the amount of credit in this case the cost of improvements 
 subject to deduction for decay from the time of election to date of the divi- 
 sion, would be the proper measure. Ibid. 
 
 The rule that where a party relies on account furnished by the other 
 party, he is bound to take it altogether and admit the debts as well as the 
 credits, unless he can surcharge and falsify it by proofs is not applicable to 
 an executor's account (not rendered before commissioners appointed for 
 the settlement of the same;) this was so held because the executor vf as 
 under a moral and equitable, and indeed a legal obligation, to furnish those 
 to whom he was accountable the means of charging him to the full extent 
 of his liabiiities.(a) Robertson and als. v. Archer, adin'r,, 5 Rand. 319. 
 
 The rule that administration accounts, audited ex parte by commissioners 
 appointed by the proper court, returned to the court and reqprded, are to 
 be taken as prima facie correct, liable to be surcharged and falsified on 
 proof adduced by any party interested, rests not on the ground that such 
 audited accounts stand on the same footing as stated accounts between 
 
 (a) See White v. Ladv Lincoln, 8 Ves. 363. 
 
 37* ■ 
 
440 OKDEKS AND DECREES 
 
 I^arties, but mainly on the long eBtHblished practice of the country, and on 
 the supposed integrity of the tribunal provided by law for the adjustment 
 thereof: therefore, such audited accounts are only to be corrected in the 
 particulars in 'which thiey are proved to be erroneous unless corruption in 
 the tribunal itself be established, and-though great and numerous eirors 
 appear, or even though the executor or administrator appear to have taken 
 an unfair advantage, does not return to the court, or exhibit to the auditors 
 an inventory or appraisement of the estate, yet the audited accounts are to 
 be taken as prima facie evidence, to be corrected so far as surcharged and 
 falsified by proof. Newton et. ux v. Poole^ 12 Leigh, 112. 
 
 Upon a bill to surcharge and falsify an executor's account, audited by 
 commissioners of county court, and approved and recorded, though plain- 
 tiff is held to specification of items of surcharge and falsification, yet it is 
 always competent for him to show, that the account is erroneous upon its 
 face, and (without controverting the items,) to show that they have been so 
 arranged as to produce results injurious to him. Garrett^ ex'or, &c., '■ 
 Carr and wifSj S^c. 3 Leigh, 407. 
 
 Executor sells a slave belonging tohis testator's estate, the sale notbeing 
 necessary for the payment of debts, and he re-purchases the slave and 
 thereupon holds him as his own. The slave is the property of the estate, 
 and the executor shall account for his annual hires, with irrterest thereon, 
 though he was not iu fact hired out by the executor. Rossci- ex'or of 
 Wood V. De2Jriesi et ah. 5 Grat. 6, 
 
 An executor takes bonds for purchases made at a sale by iiimself of tes- 
 tator's personal estate, and it does not appear when these bonds werepaid 
 off. He will be charged with the principal of the bonds in the year when 
 they fell due, but with interest only from the end of the year. Ibid. 
 
 An administrator having failed to render an account of crops, rents and 
 hires which came to his hands, proof of the estimated net annual value may 
 be resorted to for the purpose of charging him. Wills' adm'r v; Dtmn's 
 admW. 5 Grat. 384. 
 
 Bonds taken by an administrator not necessary for the reimbursement or 
 indemnity of decedent's estate, will be turned over to the administrator de 
 bonis non as unadministered assets. Clarice v. WelVs adni'r, C Grat. 475. 
 
 Administration accounts should not be closed before the time wiien all the 
 debts are, paid. Boyd^s ex^rs v. Boyd's heirs. 3 Grat. 113. 
 
 An executor having the management of both real and personal estate, 
 and making disbursements in tlie administration of the estate, and also for 
 the support of the family ; in the settlement of his accounts, he is to be 
 credited in his administration account with his disbursements as executor, 
 and in his account of the real estate, with his disbursemenla for the family. 
 Hobson V. Yancey et nls. 2 Grat. 73. 
 
 Executors not keeping their accounts properly, are to be held to a rigid 
 
VIRGINIA STATE COURTS. 441 
 
 accountability, yet this is not of itself sufEcient to deprive tliem of their 
 "commissions. Kee^s ex'r v. Kce's creditor, 2 Grat. 116. 
 
 An administrator or executor is not bound to sue for the recovery of a 
 debt due the estate, where it is apparent the debtor is not able to pay it. 
 Mitchell's acMr v. Trotter and wife, 7 Grat. 136. 
 
 An executor is not chargeable with interest on a legacy, payable to an 
 iafant, before a guardian has been appointed, and he has received notice of 
 such appointment. Cavendish v. Fleming-, 3 Munf. 198. See also Dilliard 
 v. TomlinsoH et als,, 1 Munf. 183. 
 
 An executor or administrator is chargeable with interest in all cases 
 where he has received it, and also where paper money or specie remained 
 in his hands more than a reasonable time, (which, in this case, was said to 
 be six months,) without beipg applied to the purposes of the estate. 
 McCallv. Peachy's adrn'r, 3 Munf 288; 
 
 If an executor think that lending on interest the money in his hands 
 would be dangerous, or find a difficulty in procuring borrowers, he ought 
 to apply to the chancellor for his direction, or pay the money into court. 
 Granherry's ex'or, v- Granherrys, 1 Wash. 24C. 
 
 The propriety or impropriety of charging an executor with interest, must 
 always depend on the particular circumstances in each case. The general 
 rule adopted in Granberry v, Grauberry, is not deemed inflexible, and there 
 Tuay be strong cases in which to prevent gross injustice it may bind. Such 
 a case was that of Fitzgerald v. Jones, 1 Munf 150. And it seems unrea- 
 sonable, that where a very large sum has been j eceived in the last month 
 of one year, and paid away again in the first month of the succeeding year, 
 or vice versa, to burden the executor on the one hand, or the estate on the 
 other, with a full year's interest on such sum. See opinion of Tucker, 
 president, in BuricelVs ex'ors, v. Anderson, adm'r, 3 Leigh, 364. See Wood's 
 ex'or V. Garncti, 6 Leigh 272. 
 
 Interest is not usually allowed upon conjectural and unliquidated hires. 
 }3aird v. Bland, 5 Munf. 492. For until they arc ascertained, the party is no 
 no default for not paying. Shields adm'rt). Anderson, 3 Leigh, 729. If, how. 
 ever, an executor has hired out the slaves, and has actually received the 
 hires, there he will be chargeable with interest on the money so received, as 
 upon money received by him in ordinary cases. Quarles's ex'r v. Quarles 
 2 Munf. 321. In the case of Cross's curatrix, v. Cross's legatees, 4 
 Grat. 257, it was held by the Court of Appeals that although there 
 may be circumstances which may exempt an executor from being 
 charged with interest on balances in his hands, yet in general, an executor 
 is chargeable with interest on such balances ; and where, in an ex parte 
 settlement by commissioners of an executor's accounts, the commissioners 
 improperly omit an interest account, and charge the executor with interest 
 that is cause for surcharging and falsifying the account. Burwell's ex'ors, 
 V Anderson adm'r, iSj-c, 3 Leigh, 34S. 
 
442 ORDERS AND DECREES. 
 
 ; The Court of Appeals in Burwell ex'ori, v. Attderaon'a adm'r ^c;,just 
 cited, prepared aforniula, exhibiting the manner in which accounts of exec- 
 utors and administrators should be settled. See this formula on the next 
 page. 
 
 Accounts of guardians. 
 
 A second guardian of an infant has no authority to file a bill in his own 
 name against a former guardian, for an account of bis transactions in rela- 
 tion to the ward's estate. Lemon, guardian, v. Hansbarger, 6 Grat. 301. 
 But an infant may by his next friend call the acting guardian or any pre- 
 ceding guardian to account by a bill in chancery ; in such case the bill 
 mustlie in his own name by his next friend. Ibid. (See Sillings el als. 
 V. Bumgardncr, guardian, 9 Grat. 273.) 
 
 A guardian of infants is entitled to compensation for their support, 
 though he may liave promised their friends that he would not make ony 
 charge for it, and has kept no account against them. Armstrong's heij^s 
 V. WaOcup and others, 9 Grattan, 372. 
 
 A payment made to the husband of one of those who liad been wards, 
 and who is the guardian of another of them, though intended to be a pay- 
 ment to all, is not to be credited against the third ward, who is then an adult, 
 she not having authorised him to receive it; but is to be credited against 
 the husband and wife, and his ward. Ibid. 
 
 The accounts of the tliree wards should be stated separately from the 
 commencement or at least from the time when their expenses differ in 
 amount. Ibid. 
 
 One of the wards being still an infant, there should not be a joint decree 
 in their favor though made with the consent of the next friend of the infant. 
 Ibid. 
 
 The principal on which interest should be charged to guardians in their 
 account as settled in Garrett, ex'r, &c. v. Carr and ux.. 1 Rob. 196, has 
 been incorporated in the Code of Virginia, chap. 128, sec. 10. See Code 
 of Virginia, chap. 127. 
 
 The form of a guardian's account settled upon the principles of that 
 decision in Garrett, ex'r, &c. v. Carr and ux., 1 Rob. 196, and in conformitv 
 to the provisions of Code of Virginia, may be seen on next page .- 
 
Dr. 
 
 A. n. 
 
 FORM OF GUARDIAN'S ACCOUNT. 
 Ill a-ccouni with C. B., his gxtardian, 
 
 Cr. 
 
 1850. 
 June 30. 
 
 To disbursements this .year, 
 
 commission ou j)rof]t3, (sec contra,) at -^ per 
 cent, - - _ 
 
 " principal at " " at .5 per cent 
 
 balance - ' - 
 
 1851. 
 June 30 
 
 1852. 
 June 30 
 
 1853. 
 June 30, 
 
 To dislmrsements this year, 
 
 [im tuition of ward. $25. board $125,) 
 commission on profits $2S'J Stj, (see contra) a 
 
 5 per cent, - - ■ (" 
 
 commission on principal $32 25, (see contra,') 
 
 nt 5 per cent, 
 balance. 
 
 To diebnrsements tliis year, 
 
 commission on profits (see contra) at 5 pe 
 
 cent, - . . 
 
 balance, 
 
 Fo disbursements tbis year, 
 
 commission on profits ($200) at 5 per cent, 
 this amount of principal brought into profii 
 column per contra, to meet disbuisemcnts,)'/) 
 
 balance, - - - 
 
 j frofils. 
 
 1 t-TlfU 
 
 ipal. 
 
 150 
 
 00 
 
 
 
 12 
 
 25 
 
 
 
 
 
 75 
 
 no 
 
 72 
 
 75 
 
 1425 
 
 00 
 
 $245 
 
 UO 
 
 15110 
 
 00 
 
 1 " 
 150 
 
 00 
 
 
 
 14 
 
 49 
 
 
 
 
 
 1 
 
 61 
 
 '\ 125 
 
 37 
 
 1528 
 
 39 
 
 $283 
 
 06 
 
 $1531, 
 
 00 
 
 1 
 
 : 189 
 
 00 
 
 
 
 ! 14 
 
 42 
 
 
 
 85 
 $2(j8 
 
 07 
 49 
 
 1653 
 
 76 
 
 76 
 
 Ibob 
 
 
 1 
 
 800 
 
 00 
 
 
 
 10 
 
 00 
 
 
 
 
 
 CIC 
 
 00 
 
 
 
 112- 
 
 S3l 
 
 $»I0 
 
 0U| 
 
 $173!- 
 
 83 
 
 
 
 
 
 (n) This includes a commission on the interest as well as on other receipts which 
 on the credit side of the account is carried to the profit account. 
 
 (A) See Garrett, ex'r, v. Carr. 1 Rob. Rep. 196. Coih: of Virginia, cliap. 127, sec. 10 
 (ct The guardian is cliargeahle with interest on inonev fving idle in his'hands, but 
 if II.- iias tn!;eu |jaiiis to leud it out on security reasonably deemed sufficient, nni'l the 
 jintcrest should not he realized, it should not be charged to' him. See Garrett', ex'r i- 
 Carr, 1 Roh. Rep. 196. Only so much interest as he has received should he'char^^ed 
 to the guardian in the event of his lending it out or investing it on security reasona- 
 .Vi- (!cpm;d aufficienr. Ibid. 
 
 (d) Though hires estimated, inteie^ would be charged in case of a guardian. Sec 
 antf, also Garnett v. Carr, 1 Rob. Rep. 196. 
 
 (e) In this year, money invested by guardian brought no interest ; therefore interest 
 not charged. 
 
 1850. 
 June 30 
 
 1850. 
 June 30 
 
 1851. 
 June 30. 
 
 1851. 
 
 By receipts this year, 
 
 hire of Tom $50, hire of JamoB $50, rent of 
 
 farm $145, 
 amount of bond of A. M. E. 
 
 fruji^s t }^rincipat. 
 
 1606 00 
 
 By balance duo, per contra, of profitj and pri.-lcipal 
 
 carrii-d lo principal — profit^ $72 75 \ 
 
 priiicijiiil 1425 00 {!,) 
 
 interest on tbis sum ($1497 75) (r) 89 
 
 receipts— hire of Tom and James $100; leut 
 
 ol farm $100, - - . , OQC 
 
 Cond. of il. N. paid in full. 
 
 June 30. Dy balance due, per contra, of profits and princi- 
 cipal,cariied to priuci|)nl — profits .$125 37 | 
 Jiriiicipal i52>) 39 (b) 
 
 interest on this sum $1653 76, to d.ite, 
 receipts — estimated hire of Tiini (d) $49, esti- ; 
 inatnd hire ol James $10 27, rent of farm' 
 $11.0, - . . I 
 
 1859. 
 .lune 30. 
 
 IS.52. 
 June 30. 
 
 1853. 
 June 30 
 
 99; 
 
 $2Wi h6 $15311 
 
 1497 75i 
 
 1653 76 
 
 27 
 
 49 
 
 By balance due, per contra, of profits and princi- ' I 
 
 pal carried to printijial— profits $85 07 \\ \ 
 
 principal 16.53 76 (h)\ i 
 
 hire (estimated) of Thomas $50, of James $50,'' 
 
 rent of farm 101), - . (r) 200' 00 
 
 this amount of princ;;)^/ brought into coluiiiu | 
 
 of profits, to meet disbursements, (f) GVf CO 
 
 $810. ~00' 
 
 1853. 
 
 .liine 30. Bv linbince. 
 
 ff!) 
 
 112- 
 
 1738 83: 
 
 1738 83: 
 
 83i 
 
 (/■) These items are intended to show on the face ol each side of the account the 
 amount taken Irom \\w. pri,icipal co\mnn and carried to the credit of the profit column 
 bee Garrett ex or i>. Carr, 1 Rob. Rep. 196, also Code of Virginia, chap. 127. sec. s' 
 also, 1 Wash. 246. i • , 
 
 (?■) At this point the ward reaches the age of twentv-nne vear.s, and the Guardian- 
 ship ceases. Subsequent transacli-ins are settled on the principles governiii'-' ordina- 
 ry accounts between debtor and creditor— thus : IB r 
 
 1853. — June 30 — To this amount due A. B., 
 
 To interest ou do. 3 mos. to 30th Scpt'r, 
 
 Sspt. 30— Cr. by cash. 
 
 $1,128 83 
 IG 93 
 
 $1,145 76 
 1,000 00 
 
 , . ,., ., . , , $ 145 76 
 
 and in like manner until time of settlertient. See Garrett, ex'r, r. Carr. 1 Rob Ren 
 196. ■ ' 
 
 Dr. 
 
 FORM OF EXECUTOR'S (07,', ADMINISTRATOR'S) ACCOUNT." 
 The Estate of A. B. in accoimt tntli C. I), his ex'or, 
 
 Cr. 
 
 1820. 
 Dec. 31. 
 
 1821. («) 
 Dec. 31. 
 
 lS22.(ft) 
 Dec. 31. 
 
 1823.(t) 
 Dec. 31. 
 
 1824. (/-) 
 Dec- 31. 
 
 1825.(c) 
 Dec. 31. 
 
 1826. 
 Dec. 31. 
 
 Fo disbursements this 
 
 Fo balance per contra, 
 interest thereon, 
 disbursements mis year, 
 balance due estate. 
 
 To disbursements, 
 
 balance due estate, 
 
 To disbursements, 
 
 balance due estate, 
 
 To disbursements, 
 
 balance due eitate. 
 
 To disbursements, 
 
 balance due estate, (all interest,) 
 
 To disbursements, 
 balance, 
 
 1827.((f) 
 
 Dec. 31. jTo disbursements. 
 
 1828.(a) 
 Dec. 31. 
 
 1829. 
 Dec. 31. 
 
 1830' 
 Dec. 31. 
 
 To balance per contra, 
 interest thereon, 
 balance due estate. 
 
 To disbursements, 
 
 balance due estate, (all interest. 
 
 To disbursements, 
 
 balance, (all interest,) 
 
 1831. To disbursements, 
 Dec. 31. balance. 
 
 Prinripnlj Iiit's 
 
 500 00 
 
 $5000 00 
 
 100(1 6(1 
 
 611 no 
 
 1940 00 
 
 2000 00 
 
 $5000 00 
 
 21IIIII 00 
 5000 00 
 
 120: 
 
 $7000 01) 
 
 8000 00 
 
 $10900 00 
 
 3uOU 60 
 6000 00 
 
 $9000 00 
 
 85.S0 00 
 8011 00 
 
 $9380 00 
 
 81100 (W 
 2000 00 
 
 $10000 00 
 
 4000 00 
 
 $4000 on 
 
 iil20' 
 
 I 
 
 800' 
 
 I 
 
 $801 1 
 
 ll).-)0 U(J 
 
 64 00 
 
 10000 00 
 
 $11144 80 
 
 10000 00 
 
 SIOOOO 00 
 
 5..(J 0(: 
 100 00 
 
 $600 00 
 
 500 Ol 
 
 3500 on 
 
 -L 
 
 S4000 00 
 
 600 
 
 $600 
 
 (n) In the years inarked («,) the executor being in advance, is not only 
 allowed interest, but that interest is aggregated with the principal ; for 
 when he is in advance to the estate, he is to be treated as a common credi- 
 tor. 
 
 [b] In the years marked (b,) a balance being due to the estate, the interest 
 OD that balance (or the year is calculated, but kept jn a separate column- 
 and all the disbursements are exclusively applied t- sink the principal. 
 
 ((•) In the year marked (c,) the disbureements exceeding the receipts of 
 the current year, together with the balance of prinei|ial of former years, the 
 interest on that balance is aggregated with the principal, in ord r to set off 
 aguiuPt the disbursements; and that aggregate being still insufficient to 
 
 1820. 
 Jec. 31. 
 
 ;82i. 
 
 Jec. 31. 
 
 ;822. 
 aec.31. 
 
 iS23. 
 Dec. 31. 
 
 IS24. 
 Dec. 31. 
 
 1825. 
 Dec. 31. 
 
 1826. 
 Dec 31. 
 
 1827. 
 Dec. 31. 
 
 1828. 
 Dec. 31. 
 
 1829. 
 Dec. 31. 
 
 1830. 
 
 1831. 
 Dec. 31. 
 
 By receipts this year, 
 balance due ex'or, 
 
 By receipts this year. 
 
 By balance per contra, 
 
 interest thereon to date, 
 receij)ts. 
 
 By huhince per contra, 
 
 interest on balance of principal, 
 receipts, 
 
 By balance per contra, 
 
 i-iierest on balance of principal, 
 receipts, 
 
 By balance percontra. 
 
 interest on balance of principal, 
 
 balance ofinterest li'onglit into account of prin 
 
 cipal to meet the lii'-liursemenls. 
 
 
 Pri/ictpa/. 
 
 Infst. 
 
 
 4001 00 
 1000 00 
 
 
 
 $50u'0 90 
 5000 00 
 
 
 
 
 
 $5000 to 
 
 StJuiTiJO 
 
 50C0 00 
 
 
 
 120 
 
 
 $7000 00 
 5Cr;o~60 
 5000 00 
 
 $120 
 
 120 
 
 30Uj 
 
 ! 
 
 
 
 $10CO 01 
 
 scorii 
 
 1010 00 
 
 $420^ 
 
 
 421 il 
 480^ 
 
 t 
 
 
 $9000 CO 
 
 6(j()(rt)u 
 
 360 CO 
 
 2I-.'U OU 
 
 $900; 
 
 
 1 
 1 
 
 Qy babance per contra, (interest,) 
 receipts. 
 
 By balance per contra, 
 
 interest on above balance of principal, 
 interest brought into account of principal to 
 meet disbursements, 
 balance due ex'gr, 
 
 By receipts, 
 
 By balance per contra, 
 interest thereon, 
 
 By balance percontra (all interest,) 
 
 brought into column of principal to meet the 
 disbursements. 
 
 By balance, (interest,) 
 receipts, 
 
 Balance due the estate, 
 
 with interest on the J, rincipal sum from Dec. 31 
 1831. till paid. 
 
 9C0 00 
 
 00 
 
 lOCOO 00 
 
 IWM CO 
 
 2IIOi) 0: 
 120 00 
 
 800 on 
 
 1080 00 
 
 iOOO 00 
 
 11144 80 
 
 $11144 80 
 
 10000 Ot 
 
 $1C000 00 
 
 600 0. 
 
 J 
 
 8U0 
 $800 
 
 600 
 
 $600 
 
 $600 OC 
 
 $1000 CO 
 
 $4000 0!. 
 
 3500 00 
 
 100 
 
 $100 
 
 meet the disbursements, the interest of former years is brontrht into the ag- 
 gregate, and set against the disbursements. A balance then nnne-i,s ,1,'^» 
 the estate of $800-; but this being all interest,.is. „i thraccou'it IiThiL s, ! 
 
 skletf'ihe'acco^n! "' °°"'" '"'" ""' '" '"''"''' '^°'"""' "" ">♦' "^"^^^ 
 
 (d) In the. vear marked (d,) tlio disbursements discharge the whole of the 
 
 princtpal and interest ,n arrear.and give a balance due to the executor on 
 
 which he is allowed interest in iho next year. ' ' 
 
VIEGINIA STATE COtJRTS. 445 
 
 Accovnts of Trustees, 
 
 Trustee in Trust Deed: As to disbursements, commissions and interest, 
 see 4 H. aiid M. 415 ; 6 IHunf. 99, also Code of Virginia, chap. 132, sec. 18. 
 See notes on execittors and administrators accounts. 
 
 Commissions ofjiduciaries- 
 
 See Code of Virginia, chap. 132, sec. 8 ; also sec. 18. 1 Wosh. 246 ; 2, 
 Call 102, 190 J IMunf. 150; 2 Munf. 243; 3 Munf. 29, 198,289; 4 Munf. 
 83 ; 5 Munf 224 ; 2 Rob.!582. - 
 
 As to when commissions are forfeited by trustees, see Code of Virginia 
 rhnp. 132, sec. 4 ; see also 4 H. and M. 415. 6 Munf. 99. 
 
 Commissioners^ report. 
 
 A decree confirming a commissioner's report may be reversed, where 
 under a general order of reference of all accounts, he states an account us 
 to one subject only, omitting others which ought to have been settled. 
 Harris v. Magee, 3 Call, 602. 
 
 (Jn the motion of a defendant to recommit report of commissioner, the 
 motion as far as it goes to open the accounts anew is overruled on account 
 of defendants neglect or contumacy ; but he may show himself entitled to 
 credits not considered by the commissioner, it appearing from the evidence 
 in support of liis motion, that he is entitled to such credits. Snickers v. 
 Dorsey, 2 Munf. 505. 
 
 On bill of injunction to stay proceedings on a judgment at law, if it appear 
 from commissioner's report, not excepted to by defendant, that the com- 
 plainant is entitled to a credit which the defendant failed to give, the court 
 ought not to set aside the order for account, and dismiss the bill, on the 
 ground that the complainant had neglected to carry into effect a previous 
 order, referring, by consent of parties, the accounts between them to differ- 
 ent commissioners ; but the last order having been made on the defendant's 
 motion, the report being excepted to for want of notice to the complainant 
 of the time and place of taking the account, and such exception appear- 
 ing well founded, a new account ought to be directed to be taken. Ro- 
 berts v. Jordan, 3 Munf. 488 . 
 
 An error appearing upon the face of the commissioner's report, which is 
 the basis of the decree, and not being susceptible of being repelled by ex- 
 trinsic evidence, it will be cowected in the appellate court, though not ex- 
 cepted to in the court below. Wills' admW, v. Dunn's adm'r, 5 Grat. 384. 
 
446 
 
 OEDEKS AND DECREES 
 
 DECREES RESPECTING PARTITION AND BOUNDARIES. 
 
 Decree appointing commissioners to assign and allot shares, 
 Src. (a) 
 
 (Names of parties.) 
 
 This cause came on this day to be lieard, &o. On considera- 
 tion whereof, the court doth adjudge, order and decree that par- 
 tition be made of the several pieces or parcels of land in the bill 
 mentioned as follows, to wit : (here describe the respective shares 
 to be assigned each party ;) and for the purpose of effecting such 
 partition, the court doth order iliat A. B., C. D., E. F., G. H. and 
 R. K., who are hereby appointed commissioners for that purpose, 
 (a) any three or more of whom may act, do assign and allot to the 
 several persons before named the respective shares and propor- 
 tions aforementioned by metes and bounds, and if, in their opinion, 
 such partition of the real estate cannot be made in kind without 
 loss or injury to the parties, then that the said commissioners 
 report that fact to this court and the reasons upon which their 
 opinion is founded with the real value of the estate, and the said 
 commissioners are directed to report their proceeding to the court 
 and any other matter deemed pertinent by themselves or requir- 
 ed by the parties. 
 
 NOTES. 
 
 As to manner iti which commissioners should proceed, see 2 Rob. Pr. IS, 
 
 lo. 
 
 In case commissioners cannot divide the land in kind an order of sale 
 will be entered, (see ternas oforder of sale post) and the court will distribute 
 proceeds. In case one of the parties agree to take the whole land agreea- 
 bly to the terms of the statute found in Code of Virginia, chap. 124, sec, 
 2, the terms of the decree may be readily adapted to euch case. 
 
 Decree confirming commissioner' s }-eport [and directing con- 
 veyances.] 
 
 (Names of parties.) 
 
 This cause came on this day to be heard upon the papers for- 
 merly Jead, and the report of A. B., C. D., and E. F., three of 
 the commissioners appointed by the decree entered herein on the 
 day of , of the partition of the land in proceedings 
 
 (aj In the English practice, in Maryland and formerly in Virginia, 
 it was usual to award commissions directed to three or more persons, 
 specially named, any three or more of whom might make the partitioD. 
 See Seton on Decrees, 184, e2 se;. Rob. Forms, e<2t2; 1826, p, 189. Now, 
 in Virginia, the entry appoints commissioners, &c.; a commission is not 
 usually directed or iseusd. 
 
VIRGINIA STATE COURTS. 447 
 
 mentioned among the several parties entitled thereto, agreeably 
 to the terms of the said decree, and was argued by counsel. On 
 consideration -whereof, it appearing to the court, that in the par- 
 tition made by the said commissioners, lot No. 1 embracing, &c., 
 (here describe it,) fell to the share of plaintiff, E. M., lot No. 2, 
 embracing, &o., (here describe it,) fell to the share of the defend- 
 ant, C. MT, and lot No. 3, embracing, &c., (here describe it,) fell 
 to the share of the defendant, L. B., it is adjudged, ordered and 
 decreed that the said report of the said commissioners be con- 
 firmed, and that the partition in manner and form aforesaid made, 
 be held firm and stable. [And it is further ordered that mutual 
 conyeyances be executed by the parties to each other, of the se- 
 several lots hereinbefore mentioned assigned and allotted to each 
 of them as aforementioned.] (a) And the court doth further ad- 
 judge, order and decree that the plaintifi' R. M. do pay uuto the 
 defendant C. M. the sum of thirty-five dollars, and unto the de- 
 fendant L. B. the sum of forty-two dollars, these sums being re- 
 spectively due from the said plaintiff to the said C. M. and L. B. 
 as .owelty of partition on the division aforementioned. And it 
 is ordered that the costs of this suit be proportionably borne by 
 *the parties thereto, [and that the parties to this suit, plaintiff and 
 defendants, do pay to A. B., C. D. and E. F., the commissioners 
 
 aforesaid, each, the sum of dollars, for their services in 
 
 making the partition aforementioned.] (6) 
 
 (') Decree directing commissioners to allot and apportion shares^ 
 
 AV. J. F. plaintiff a,gainst P. B. J., administrator de bonis non 
 of S. F. deceased, J. F., S. F., M. F. F., and A. E. F., infants 
 under the age of twenty-one years by P. R. their guardian ad 
 litem, assigned to defend them in this suit, defendants. 
 
 This cause came on this day to be heard upon the original and 
 amended bills, taken for confessed as to the adult defendants, the 
 
 {a) By a partition made at law the le^al estate is vested by tlie partition- 
 But by a partition in equity, the equitable right only is vested ; and to 
 complete the partition, mutual conveyances must be executed by the par- 
 ties. Whaley v, Dawson, 2 Sch. and Left. 372. Miller v. Wormington, 1 
 J. and \V. 493, and judgment of Lord HardwSfcke in Tuokfield v. Buller. 
 It is better to direct the conveyances by the parties themselves if there be 
 no legal impediment in the way. If parties be under some legal disability, 
 and may not, therefore, execute proper conveyances, then a commissioner 
 should be appointed to execute the same. The 4th sec. chap. 178 of the 
 Code of Virgmia gives to the courts o'f equity in Virginia full power to ap- 
 point a commissioner to execute any deed or writing, and declares that the 
 execution of such deed or writing i)y a commissioner so appointed " shall 
 be OB valid to pass, release or extinguish the right, title and interest of the 
 party on whose behalf it is executed, as if such party had been iit the time 
 capable in law of executing the same and had executed it." 
 
 (6) Commissioners appointed to divide lands under a decree of the court, 
 allowed each five dollars per dav. (CA. Taylor.^ Cabell v. Cabell, et als. 
 4 Hen. & Munf. 436. 
 
448 
 
 ORDERS AND DECREES 
 
 answer of the infant defendants by P. R., their guardian ad litem, 
 with replication thereto and was argued by the counsel for the 
 plaintiff: On consideration whereof, the court doth order that B. 
 P., S. ,B. L., T. J. W., W. D. J. and J. W. F., who are hereby 
 appointed commissioners for the purpose, any three of whom may 
 act, having been first duly sworn, do proceed to lay off and divide 
 the real estate, of which S. F. died seized and possessed, consist- 
 ing of tracts of land in the county of , one near 
 
 in the county of , containing about acres, 
 
 adjoining the Jands of S. B, S., J, W. F, and others, and the other 
 
 near in the said county, containing about acres, 
 
 and adjoining the lands of N. H. and others, into five equal 
 parts, having regard to quality and quantity, and assign one 
 of five said parts to each of the children of the said S, F, de- 
 ceased, namely : to W. J, E. one fifth part, to J. F. one fifth part, 
 to S. F. one fifth part, to M, F. F. one fifth part, and to A. E. F. 
 one fifth part. But if the said commissioners should find it im- 
 practicable to divide the said land among the aforesaid parties, or 
 should be of opinion that the interest of the said parties would 
 be more pi'omoted by a sale of the same, in such case they are 
 required to report the facts vipon which their opinion is based, to. 
 the court, and also what in their opinion, is the fee simple value 
 of the whole of the real estate of which S. F. died seized and pos- 
 sessed : and in either case they are required to report their pro- 
 ceedings under this order to the court. 
 
 (^) Commissioners haviiu/ rc-poried land indivisthle in lind, repori 
 ronfirmcd and sale ordered. 
 
 W. J. v. plaintiff against P. B. J., administrator de bonis non 
 of S. F. deceased, J. F„ S. F., M. F. F., and A. E. F., infants un- 
 der the age of twenty-one years by P. It- their guardian ad litem, 
 assigned to defend them in this suit, defendants. 
 
 This cause came on this day to be again heard upon the papers 
 formerly rsad and upon the report of §. B. L., W. 1). J. and J. "W. 
 
 F., three of the commissioners under the decree of the 
 
 day of eighteen hundred and , to which report 
 
 there is no exception and was argued by the counsel for the plain- 
 tiff: On consideration whereof, the court doth approve and con- 
 firm the said report, and doth adjudge, order and decree that the 
 
 Sheriff of county"? or one of his deputies, do proceed after 
 
 having advertised the time, place and terms of sale in one or more 
 
 of the newspapers published in the , once a week for 
 
 twenty day.s, and al«o posted notice thereof at the door of the 
 
 courthouse of county, on some court day previous to the day 
 
 of sale, to sell the real estate in the bill and proceedings mention- 
 ed, of which S. F.- died seized and possessed, consisting of a 
 
 tract of land of about acres, near , one otlier tract of 
 
 about acres, near in the county of , at public auc- 
 tion, in front of the door of the courthouse Of the county of 
 
VIRGINIA STATE COURTS 449 
 
 on some court day, upon the following terms, to wit : on6 third 
 cash, one third on a credit of twelve months, and the residue on 
 a credit of two years from the day of sale, the credit instalments 
 to bear interest from the day of sale ; taking from the purchaser 
 bonds with good personal security ifor the deferred payments, and 
 the title to be retained until the further order of the court. And 
 the said Sheriff, or such deputy as may act under this decree, is 
 required to report his proceedings under the same to the court. 
 
 PRACTICAL NOTES ON DECREES FOR PARTITION, fcc. 
 
 As to partition of lands, of slaves or otiier chattels, see Code of Virginia, 
 chap. 124, sec. 1-6. 
 
 Partition. 
 
 If suit for a. partition be instituted in the CoUnty or Corporation Court, 
 and a sale of the real estate or part thereof be proper, and the dividend of 
 any party in the opinion of tlie court exceed the value o( three hundred 
 dollars, the case, before any decree for sale therein, should be removed to 
 the Circuit Court of the County or Corporation. See sec. 2 of chap, 124 
 Code of Virginia. 
 
 The only indispensable requisite entitling the plaintiff to relief in equity 
 on bill for partition, is, that he should shew a clear legal title. Whenever 
 this is shewn, the claim to partition is matter of right and not of discretioni 
 Wiseley v, Fuidlay and others, 3 Rand. 361 ; Castleman, &c. v. Veitch, &c., 
 3 Rand. 598; Stuart's heirs i". Coalter, 4 Rand. 74. 
 
 Where the legal title was disputed or doubtful, it was the practice, be- 
 fore the statute in Code of Virginia, above cited, for the court of equity 
 either to dismiss the bill, as unfit for its jurisdiction, or retaining the bill to 
 refuse relief until the plaintiff established his title at law, by ejectment or 
 other legal remedy; (sec II Rob. Pr. 11, and cases cited; Straughan ». 
 Wright, 4 Rand. 493; Stuart's heirs c. Coalter, 4 Rand. 7 4, See also 
 Lange v. Jones, 5 Leigh, 192 ;) but it seems that under the present statute 
 the courts of eqttity in Virginia may in the exercise of its jurisdiction over 
 cases of partition, " take cognizance of all questions of law affecting the 
 legal title, that may arise in any proceeding." Code of Virginia, chap. 124, 
 sec. 1, In cases of .this kind, where the legal title is disputed as doubtful, 
 courts of equity will probably under this statute, as in other cases where 
 there is much doubt or difficulty concerning facts, direct an issue to be 
 tried either at its own bar, or by another court. See note of revisers of 
 Code to 4 sec, chap- 124, in their report, p. 64 ; also 10 Grat. 145. 
 
 As to issues see preceding volume, sections 241, 325-332. 
 
 [Bill in equity for partition of land held jointly by insolvent debtor and 
 
 another, Ruffners ». I-ewis's ex'ors, et als:, 7 Leigh 720. A tenant by the 
 
 curtesy of lands purchases the reversionary interests of one of these heirs, 
 
 another interest is held by infants ; held that a court of equity will decree 
 
 38 
 
450 OEDERS AND DECREES 
 
 partition of the land at the auit of the tenant by curtesy, (1845) OUey 
 V. McAlpinc's Jwirs, 2 Grattan, 340.] 
 
 Two tenants in common, of full age and laboring under no disabilty 
 make partition of a tract of land, by deed, according to an old survey. 
 The parties enter into possession of the parts respectiyely, no fraud or 
 misrepresentation averred — held, that such division, however unequal, is 
 binding on them and their assigns. Jones's devisees v. Carter, 4 H. and 
 M. 184. 
 
 A sale of a part of a tract of land having been made under a misconcep- 
 tion of the rights of the parties, and the purchaser, with other plaintiffs, 
 applying to a court of equity for a partition of the land, (saying nothing of 
 the part sold,) aniong themselves and the vendors and others, to which par- 
 tition they appeared entitled ; and the vendors, by their answer, expressing 
 a wish, that if partition should be decreed, the sale should be set aside ; 
 the court rescinded the sale, and directed u partition of the whole tract. 
 McClintic, SfC. y. Manns, 4 Munf. 328. 
 
 A partition, which has long been acquiesced in, and acted upon by the 
 parties generally, ought not, on the ground of irregularity only, to be dis- 
 turbed, even by a party who never acquiesced; but it may, if unjust or 
 illegal. Carter's ex'or v. Carter et als,, 5 Munf. 108. 
 
 Under the circumstances of this case, one of the persoife entitled to par- 
 tition, having been in possession and enjoyment of the whole land for many 
 years, through want of knowledge of the title of the other parties, to whom 
 he made their title known immediately after it was discovered by himself; 
 upon a bill filed by them for partition, it was considered equitable that he 
 should account for their proportion of the rents received by him, deducting 
 his disbursements for securing the title ; that all the leases, and agree- 
 ments for lease, he had made of the land, should be acquiesced in by the 
 plaintiffs; and that, for a part which he had sold, ho should pay the price 
 received, with interest from the time of the sale ; the time when he received 
 it not appearing to be different fVom that of the sale. Ibid. 
 
 Interest, also, would have been allowed the other partners on their pro- 
 portions of the rents received by him from the time of filing their bill ; but, 
 by their consent, it was allowed from the beginning of the next year after 
 the last receipt. Ibid. 
 
 Boundaries, 
 
 As to origin of jurisdiction exercised by courts of equity in England over 
 the settlement of boundaries, sea II Kob. Pr. 163, 4; also 2 Meriv. 416, 
 Glynn ». Scawen, Finch's Rep. 239 ; and as to whether these courts have 
 jurisdiction over such cases j>er «e, see Wake v. Conyers, 2 Cox's Ch. Ca. 
 360 J Waring v, Hotham, I Brown's Ch. Rep. 40 ; Atkins v. Hatton, 2 Anst. 
 
VIRGINIA STATE COURTS. 451 
 
 Sg6. Tlio weight of authority ueonis to be against the exercirio of such 
 juviscUction by the English courlf. " In Virginia," says Mr. Robinson in 
 his Practice, "the Court of Appeals have often recognized the general rule 
 that equity does not interfere in questions involving the title to real pro- 
 perty." The jurisdiction respecting the boundaries of land, it has been 
 declared, must be restricted to those cases in which some equity is raised 
 by the acts of the parlies ; and this equity must be an equity of the plain- 
 tiff against the adversary claimants of the case. He cannot give the court 
 jurisdiction by setting forth in his bill an equity against other persons. II 
 Rob. Pr. 164, 5. See Stuart's heirs v. Coalter, i Rand. 74. 
 
 DECREE rOK rORECLOSURE Of MORTGAGES, &C. 
 
 Decree for foreclosure of mortgage and sale of property. 
 
 (Names of parties.) 
 
 TJois cause came on, &c On consideration whereof, the court 
 doth adjudge, order and decree, that unless the defendant do, 
 Tvithin six months from the date hereof, pay to the plaintiff the 
 sum of $300^ith interest thereon, to be computed at the rate of 
 six per centum per annum, from the first day of February, 1818, 
 until payment, the said defendant, his heirs, and all persons 
 claiming under him, be from thenceforth forever barred and fore- 
 closed, of and from all equity of redemption in the lot No. 734, 
 in the city of Richmond ; and in case of default in the payment 
 of the sum of money and the interest aforesaid, that A. B., who 
 is hereby appointed a special commissioner for that purpose do, 
 after having advertised the time and place of sale for three weeks 
 successively, in one of the newspapers printed in said city, ex- 
 pose to sale on the premises, at public auction, to the highest 
 bidder, the said lot of land, on the following terms, to wit : (here 
 sat forth terms,) (a) and out of the proceeds of sale, after defray- 
 ing the expenses attending the same, do deposit the residue of 
 the cash instalment of said pui-chase money aforesaid, in one of 
 
 the banks in the city of , and file among the pipers of this 
 
 cause a certificate of such deposit, [and return with Kis report 
 of his proceedings under this decree, the "bonds given for credit 
 instalments of said purchase money.] But the said A. B. is not 
 to proceed to act under this decree as such commissioner until 
 he shall have entered into bond with sufficient security in the 
 clerk's office of this court, payable to the commonwealth of Vir- 
 ginia, conditioned, for the faithful discharge by him of his duties 
 as such commissioner. (&) And the said commissioner is directed 
 to report his proceedings under this decree to the court. 
 
 {a) See Code of Virginia, chap. 178, sec. 1. 
 
 (b) See Code of Virginia, chap. 178, sec. 1. It will he noticed that the 
 condition of the bond is not totidem verbis prescribed by this chapter. See 
 Code of Virginia, chapter 13, sec. 8, for condition of boad, &c. 
 
452 ORDERS AND DECREES 
 
 NOTES. 
 
 The practice in Virginia differs from tlie English practice. In Virginia 
 (and in most of the other States of the Union, 4 Kent. Com. 174) the court 
 decrees a sale of the mortgaged premises. In England, the decree is, that 
 the mortgagor be forever barred and foreclosed of iis equity of redemption 
 and that the mortgagor have the absolute right of property. See Seton's 
 Forms 139 el seq. 
 
 In some cases, however, the courts of England have not adhered to the 
 practice of simple foreclosure. Judge Lomax has classified these excep- 
 tions in the second volume of his Digest of the Laws of Real Property, p. 
 401 et seq. 
 
 Commissioners appointed by foregoing order report sale ; 
 sale corifirmed and decree for conveyance. 
 
 (Names of parties.) 
 
 This cause came on tliis day to be further heard upon the pa- 
 pers formerly read, and' the report of the sale made by the com- 
 missioners pursuant to the decretal order of the 17th day of Jan- 
 uary last, to -which there is no exception, and was argued by 
 counsel. On consideration •whereof, the court ap^-ovmg and 
 confirming the said report, doth adjudge, order andAeeree, that 
 upon the payment by J. B., jun'r, of his two bonds in the report 
 uientioned, as executed by him, for the purchase of the land and 
 premises directed to be sold by said decretal order, the said com- 
 missioners do-convey to the said -J. B., jun'r, with special war- 
 ranty, the said lands : 
 
 And it is further ordered, that when the said commissioner 
 shall have received payment of the bonds, for $1,587 73, men- 
 tioned in the said report, he shall forthwith deposit the same in 
 the Farmers' Bank of Virginia, to the credit of the court in this 
 cause and file among the papers of this court a certificate of such 
 deposit. But the said A. B., oommi'r, &c., (see p. 451, ante.) 
 
 NOTES. 
 
 When the commissioners have made a report of sale, the same will be con- 
 firmed if there-ie no objection, and if it appear that the purchase money 
 has been paid, the same order may direct a conveyance to the purchaser. 
 1 Rob. Pr. 387. It has been questioned whether a deed to the purchaser at 
 a sale directed by a decree conveys any title without a decree confirming 
 the sale ; Lovell v. Arnold, '2' Munf. 167, and whether it be regular in a de- 
 cree of foreclosure, directing sale of mortgaged land, further to direct the 
 proceeds to be paid over the plaintiffbefore the sale has been confirmed by 
 the court. Anderson v. Davies, 6 Munf. 484. A more important question in 
 relation to such sales is this — at what time the purchaser becomes the owner 
 of the property sold, and suffers any losses (by fire or otherwise) which th& 
 property may sustain. Sir Edward Sugdenlaysit down as law that in sales 
 before a master in the English courts, the purchaser is not considered as en- 
 titled to the benefitof his contract till the master's report of the purchaser's 
 bidding is absolutely confirmed j 1. Sugden on Vendors, 39, and that the bid- 
 dernot being considered as the purchaser until the report is confirmed is not 
 liable to any loss by fire or otherwise which may happen to the estate in 
 the Interim ; nor is he until the confirmation of the report compellable to 
 complete his purchase ; but upon the report being confirmed he will be 
 
VIRGINIA STATE COURTS. 453 
 
 compelled to cany the contract into execution. 1 Sugden on Vendors, 4. 
 The Virginia practice seems to accord with the doctrines announced by Sir 
 Edward Sugden. See 1 Lorn. Dig. R. P. 406 ; also Heywoodo Covington, 
 4 Leigh, 373, in which Tucker P. held a purchaser absolved from his pur- 
 chase, provided there was no fault in him ; in a case where a sale made 
 of a mill and mill seat, and after the sale and before the confirmation of re- 
 port, the mill and mill-dam were materially injured by freshets. See also 
 Taylor v Cooper, 10 Leigh 317. After report confirmed, purchaser is con- 
 sidered owner from the date of sale. Ibid. 
 
 If when the sale has been made and the report confirmed, the purchaser 
 fail to complete his purchase by paying the purchase money, an order may 
 be entered directing the purchaser to make such payment by a specified 
 time, or show cause why an attachment should not issue against nim.- 2 
 John. Ch. Rep. 695. See p. 158-9, flK^e, and process of contempt. (See 
 Brashor's ex'rs v. Cortlant, 2 Jolin. Ch. Rep. 505. Gordon v. Sims, 
 2 IVIcCords Ch. Rep. 152, 162, 165.) See alse Code of Virginia, chap. 178, 
 sec. 2. 
 
 When a sale and conveyance are made under a decree foreclosing a mort- 
 gage,-the court of chancery is not functus officio until the decree is execu- 
 ted by the delivery of possession. Green J. in Newman u. Chapman, 2 
 Rand. 93, If it appear that a person not a party to the suit is in posses- 
 sion of the property, and refuses to give it up, the usual course of the court 
 (says Chancellor Taylor) is to make a rule upon such person, and unless 
 he show a jittVamount right in himself to order the property to be delivered 
 up ; and enforce such order by attachment if necessary. Commonwealth 
 B.Ragsdale, 2H. &M.8. 
 
 The crops which are growing upon the mortgaged land at the time 
 of the sale under the decree of foreclosure pass with the land to the 
 purchaser thereof. Crew v. Pendleton, &c. 1 Leigh 297. And it is the duty 
 of the court in which the decree is made to protect the purchaser if he is 
 disturbed in his possession ef the crops by the general creditors of the 
 mortgagor, before a legal title has been made to him by the officer of the 
 court. Ibid. 
 
 When sales of lands under decrees will not be set aside. Fairfax v, 
 iVIuse's ex'rs, 4 Munf. 124 ; Forde v. Heron, Ibid, 316. 
 
 Cases in which sales of lands under decrees have been set aside. Quarles 
 V. Lacy, 4 Munf. 251. Wood's ex'r and Miller v. Hudson, 5 Munf. 423; be- 
 cause terms of decree were not followed by the marshal. Tennant's heirs 
 V. Rations, 6 Leigh 196. 
 
 See Code of Vir,jinia, chapter 178, sec. 3, as to commissions of commis- 
 sioners. 
 
 See Code of Virginia, chap. 178, sec. 8, as to effect on purchaser's title of 
 setting aside order of sale when executed six months after its entry. 
 
 Decree for payment to plaintiff of proceeds of sale in sat- 
 isfaction of his debt, and directing the defendant to check 
 for the residue. 
 
 (Names of parties.) 
 
 This cause came on, &c. On consideration whereof, it appear- 
 ing to the court by the certificate of deposit filed hy A. B., (the 
 special commissioner appointed to sell the mortgaged property 
 in the proceedings mentioned) among the papers in this suit, 
 that there is on deposit in the Farmers' Bank of Virginia, to 
 38* 
 
454 ORDERS AND DECEEES 
 
 the credit of this suit, the sum of dollars, the pro- 
 ceeds of said mortgaged property ; and it further appearing that 
 
 the plaintiff is entitled to tlie sum of dollars, that 
 
 being the amount of the debt secured by his mortgage -with 
 interest thereon, and of the costs by him about his suit in 
 this behalf expended, the court dotli adjudge, order ajid de- 
 cree that the said plaintiff (or his counsel N.O.,) do check on an at- 
 tested copy of this decree on the said bank for the said sum of 
 
 dollars. And it is further ordered that the defendant do check 
 on the said bank on an attested copy of this decree for the sum 
 
 of doHars, being the balance standing in the said bank to 
 
 the credit of the court in this cause after the said plaintiff has 
 checked as aforesaid. [And leave is given the parties or either 
 of them to procure attested copies of this decroo from the clerk, 
 forthwith.] ' 
 
 Decree for account under bill for equity of redemption, 
 where moii.gagec is in possession. 
 
 (Names of parties.) 
 
 This cause came on, &l-. On consideration whereof, the court 
 doth adjudge, order and decree that it bo referred to one of the 
 commissioners of this court to take an account of what is due 
 the defendant, Robinson, for principal and interest on the mort- 
 gage in the bill mentioned, ai^er deducting whatever amount of 
 the rents and profits of the said mortgaged premises, the said de- 
 fendant, Robinson, may have' received, or which may have come 
 to the hands of any other person or persons by his order or for 
 his use, or which he without his wilful default might have received. 
 And the said commissioner is directed to examine, state and set- 
 tle the said account and report the same to the court with any 
 matter specially stated deemed pertinent by himself or required 
 by any of the parties to bo so stated. 
 
 NOTES' 
 
 See notes on accounts p. 437, ante. In ihc sctliemeuL of account directed 
 by this decree of course, the commissioner will adopt that between debt- 
 or and creditor. See p; — . ante. 
 
 Seo Practical Notes on bills, &c., p. — . ante. 
 
 Decree, on return of commissioner's report requiring plain- 
 tiff to pay amount found due, and in default, a sale of 
 mortgaged premises directed, Sfc. 
 
 (Names of parties.) 
 
 This cause coming on this day to bo heard upon the papers 
 
 formerly read and the report of commissioner under the 
 
 decree entered herein on the day of , to which report 
 
VIRGINIA STATE COURTS, 455 
 
 tlieve was no exception, was argued by counsel. On consideration 
 whereof, the court doth adjudge, order and decree that the plain- 
 tiff, J. B., do pay unto the defendant, Robinson, within six months 
 
 after the date of this decree, the sum of $ , with interest, 
 
 &c., that being the balance found due from the said plaintiff to 
 the defendant, Robinson, on the report of the said commissioner, 
 [and the costs of the defendant expended in his defence in this 
 suit,] and that upon the payment of the said principal, interest 
 [and costs] {a) to the said Robinson, that the said defendant do 
 re-sui-render the mortgaged premises in the bill mentioned unto 
 the said plaintiff, J. B., or unto such person or persons as he shall 
 direct, free and clear of all incumbrances, done by him or any 
 person claiming by, through or under him. [But in default of the 
 said plaintiff paying unto the defendant, Robinson, the said prin- 
 cipal, interest and costs as aforesaid, it is ordered that the said 
 plaintiff be foreclosed of all equity of redemption in the said land 
 and the court doth further adjudge, order and decree that in case 
 of such default in the payment of said principal, interest and 
 costs then that A. B., who is hereby appointed a commissioner 
 for the purpose, do expose to sale at public auction, to the high- 
 est bidder, on the premises, the land mortgaged by the plaintiff, 
 as in his bill mentioned, on the following terms, to wit : (here 
 prescribe terms, &c.) (6)and the said commissioner is directed to re- 
 port his proceedings under this decree to this court. But the 
 said A. B. is not authorised to execute this decree until he shall, 
 &c., (follow fcrm on p. -Ij], ante, to conclusion.) 
 
 NOTES. 
 
 The foregoing form lias been drawn in conlbrniity with the decision in 
 Turner v. Turner, 3 Munf. 66. 
 
 See notes to decrees on foreclosure, &c., on p. 452, ante, as to sales by 
 commissioners and purchaser's rights and liabilities, commissions of com- 
 missioners, &c. 
 
 PRACTICAL NOTES ON DECREES FOR FORECLOSURE, &c. 
 
 See 2, 3, title Decrees on p. 262, «Hte; also 24, 25, 26, title Decrees, p. 
 265, ante ; also 2 and 47 title Parties. 
 
 If a mortgagee in consequence of assurances that "he shall receive his 
 money from another quarter, permit the mortgagor to sell the premises, the 
 
 faj It can not be questioned that in a case in which the defendant mort- 
 gagee has been guilty of no wrong, he should have costs. See Turner 
 V. Turner, 3 Munf. 66. 
 
 (6) See notes on p. 452, and conclusion of form, p. 451, ante. 
 
456 ORDERS AND DECREES 
 
 purchiiser will bo protected ; notwithstanding the fund from which the 
 mortgagee expected payment proves delusive. Taylor v. Cole, 4 Munf. 
 351. 
 
 C. takes a mortgage from A. to secure just debts, aiid is informed imme- 
 diately before the mortgage is executed, that A. has mortgaged the same 
 subject to B. to secure a debt due him, but that the debt to B. is usurious, 
 which mortgage to B. is not duly recorded : Held, that C, and all claiming 
 under the mortgage to him, are purchasers with notice of the prior unre- 
 corded mortgage to B., and that the contemporary information that the 
 prior mortgage was usurious, does not affect the question of notice of the 
 prior mortgage. Beverly v. Brooke ct al.^ 2 Leigh, 426. 
 
 Where a foreclosure is decreed, the court is to exercise a sound discretion 
 in relation to the period of redemption, and fix it according to the circum- 
 .stances of the case. The usual time is six months, but less may be all- 
 owed. Harkins v. Forsyth etcds, 11 Leigh, 294. 
 
 A final decree of foreclosure in favor of the assignee of a mortgage ought 
 to put to rest any controversy between the parties thereto, on the ground 
 of any supposed defect in the deed of assignment. Chapman v. Armistead, 
 4 Munf. 382. {An action at law.) 
 
 If a purchaser of land subject to incumbrance by mortgage, apply to 
 equity for relief against a judgment in ejectment, the decree ought not to 
 be "that the injunction be dissolved, unless the complainant pay the sum to 
 the mortgagee," but that the mortgaged premises be sold, unless, &c., and' 
 that out of the proceeds of the sale, the sum due be paid to the mortfagec, 
 and the surplus, if any, to the complainant. Damson y. TTni'^e, 2 Munf. 
 527. 
 
 Slaves may be redeemed, notwithstanding the mortgagee has been in pos- 
 session more than five yfears ; the general rule being, that redemption will 
 be allowed within twenty years ; but that period is not absolutely limited; 
 for redemption is sometimes allowed upon equitable circumstances, after 
 a much longer time ; because the trust existing between the parties, pre- 
 vents the act of limitations from applying ; and a creditor can never be in- 
 jured if he get his principal and interest ; a debtor may, if deprived of his 
 estate at, perhaps, half its value. lioss v. Narmll, 1 Wash. 14. 
 
 Equity of redemption. 
 
 A deed is made whereby, after reciting that F. the grantor hath sold to 
 H. the grantee, for the sum of $200, real and personal estate, it is wit- 
 nessed that the grantor in consideration of that sum, conveys the same to 
 the grantee, the deed concludes " it is agreed and fairly understood by and 
 between the said F. and H. that in case the said H., or his heirs or assigns, 
 
VIRGINIA STATE COURTS. 467 
 
 shall not be able to make the aforesaid $200, out of the estate hereinbefore 
 conveyed, that then the said F. shall refund the same to the said H., or his 
 heirs, or assigns, with lawful interest thereon, from this date till paid, or 
 such part of the said $200, as the said H. shall not be able to realize as 
 aforesaid." Under the authority of this deed the grantee sells and conveys, 
 and his grantee sells and conveys. Ten years after the date of the first deed, 
 the grantor in that deed files a bill in equity to redeem the estate conveyed, 
 on paying whatever may be due of the $200, with interest. The bill can- 
 not be maintained. Allen J. dissentivig. Floyd v. Harrison, SfC, 2 Rob- 
 161. 
 
 On a mortgagor's bill for an account of profits and a conveyance of the 
 mortgaged premises ; if he still be indebted on the mortgage, his equity of 
 redemption ought to be allowed him ; but the costs of the suit should be 
 decreed against him. Turner v. Turner, 3 Munf. 66. 
 
 I. M. having the equitable title to a tract of land, sold it to I. P., and re- 
 ceived of him part of the price; but finding some difficulty in getting the 
 balance, he made another sale of the same land to I. H., upon condition 
 that he would advance the balance and give I. P. six months to pay it to 
 him, in which event I. P. was still to have the land ; otherwise it was to 
 belong to I. H. The contract so made was approved by I. P., who accord- 
 ingly promised to pay the money to I. H., and soon after the contract, 
 ■moved ofi" the land, of which I. H. then took possession. This was ad- 
 judged to be a mortgage on the part of I. P. ; and that a court of equity 
 should allow him to redeem, notwithstanding he failed to pay the money 
 within six months, he not having treated with I. H. for n sole of his title 
 nor entered into any discussion with him concerning the adequacy of the 
 sum alleged to have been intended as the price oiv consideration therefor; 
 and the said land being so far more valuable than the said consideration", 
 as to leave no doubt that the contract in question was intended to create 
 a penalty or pledge to ensure the punctual payment of the money. Pen- 
 nington V. Haniy, i Munf. 140. 
 
 If the person having the equitable title to a tract of land mortgage it 
 and afterwards sue for a conveyance of the legal title, (the mortgagee 
 being a party to the suit,) the court ought not to decree a conveyance 
 without holding the land ultimately bound to satisfy the mortgage, and to 
 be sold to raise the money due, with interest. Ibid. 
 
 DECREES RESPECTING IXFANTS, INSANE PERSONS, &0. 
 
 Infants. 
 See p. 442, ante. 
 Orders on motion for additional security made by surety 
 against a guardian. 
 
 (') T. B. E., exparte. 
 
 Upon the petition of T., E. E. this day- filed, setting forth 
 
458 OllDEES AND DECREES 
 
 that lie stands bound in this couit as security for W. G., as 
 guardian of hia two infant children, R. K. G. and W. II. G., 
 and that ho apprehends himself to bo in danger of suffering 
 thereby, and praying the court for relief, it is ordered that the 
 said W. G., being ton days previously served vi-ith a copy of 
 this or(Jer, do appear before this court on the first day of the next 
 term, and show cause, if any he can, why he should not be com- 
 pelled to give a new bond as guardian aforesaid with other secu- 
 rity, or have his powers and authority as guardian aforesaid re- 
 voked and annulled, pursuant to the eleventh section of chapter 
 one hundred and thirty-two, of the Code of Virginia. 
 
 (») T. E. E., expmie. 
 
 The-said T. E. E., by hia counsel, this day again appeared in 
 court, and W. G., guardian of his two infant children, R. K. 
 G. and W. H. G., still failing to appear and answer the rule 
 entered in this/case on the twenty-eighth day of November, 
 eighteen hundred and fifty ; and it appearing to the court, by the 
 certificate of the clerk, that the said W. G. has returned to 
 the court no account of his transactions as guardian aforesaid, 
 the court doth order that unless the said W. G. shall, on or 
 before the first day of Pebniary next, execute a new bond, with 
 sureties to be approved by the court, in the penalty of three 
 thousand dollars, being the penalty of his present bond, then that 
 his powers as guardian aforesaid, be and the same are hereby re- 
 voked and annulled as an act of thi? day ; and the court vrill 
 then* proceed to make such further- Orders as shall seem to it 
 proper. 
 
 (') T. B. E., cxparte. 
 
 The said T. E. E., by his counsel, this day again appeared in 
 court, and it appearing to the court that W. G., guardian of 
 his two infant children, R. K. G. and "W. H. G., was duly 
 served with a copy of the order entered in this case, on the six- 
 teenth day of January laat, as appears by the affidavit of A. B. 
 H., deputy sheriff for W. B. R., sheriff of the county of Henrico, 
 and he not appearing, although solemnly called ; and that the 
 said W. G. has failed to execute the bond, required of him 
 by the said order of the sixteenth day of January last, that order 
 is made absolute, and hia powers as guardian of R. K. G. and 
 W. H. G., are declared to be revoked and annulled, as an act 
 of that day. And the court doth further order that the said 
 W. G. do render, before one of tho commissioners of this court, 
 an account of his transactions as guardian aforesaid, and that ho 
 do forthwith deliver to the sheriff of this county the property and 
 money in his hands belonging to his wards ; and that tho said 
 
VIRGINIA STATE COURTS. 459 
 
 sheriff do, on or before the fifteenth instant, report to the court 
 the property and money received by him, in order to a further 
 decree. 
 
 44. Infants plaintiffs arrived at age, Sfc. 
 
 It being suggested to the court, that since the institution of 
 this suit, B. A. hath attained his full age, on motion of L. A., by 
 counsel, it is ordered that his name as next friend be discontinued 
 in the subsequent proceedings, and that this suit be hereafter 
 prosecuted in the name of R. A. as plaintiff only. 
 
 INSANE PERSONS. 
 
 45. Orders concerning insane persons, awarding com- 
 mission, Sfc. 
 
 (') L. A. II., exparte. 
 
 On the motion of A. L. and M. B., who have filed their peti- 
 tion, alleging that L. A. H., of the city of Richmond, is of^un- 
 sound mind, incapable of managing her own affairs and of mak- 
 ing valid contracts, and that she is a lunatic, requiring the aid of 
 this court, and praying that a commission may issue, in the na- 
 ture of a commission of lunacy, to enquire into the state of the 
 said L. A. H.'s mind, and that a proper committee may be ap- 
 pointed to take the custody of her person, and the management 
 of her estate, and the said petition being supported by sundry 
 affidavits filed, the court doth order that a commission returnable 
 forthwith dp issue to Dr. J. W., Dr. T. N., Dr. M. C. J. R. and S. 
 S., commanding them, or any three or more of them, to examine 
 the said L..A. H. ; and by lawful inquest, taken before them, to 
 ascertain and report to this court, whether the said L. A. H. bo 
 lunatic, or so unsound of mind as to be incapable of managing 
 her own affairs and of making valid contracts ; and if she be luna- 
 tic or of unsound mind as aforesaid, how long she hath continued 
 in that -state of mind. 
 
 And the court doth further order, that the sheriff of Henrico 
 county, at such time and place as the commissioners aforesaid, or 
 any three or more of them may require, do summon and cause to 
 come before the said commissioners, twelve or more good and 
 lawful men of his bailiwick, to make inquisition upon oath of and 
 upon the premises, and that the inquest so taken under the seals 
 of the jurors, be forthwith returned with the report of the said 
 commissioners to this court. 
 
 {^) L. A; H., expaHe. 
 
 The commissioners, appointed by the order of the twenty- 
 fourth day of the present month, having returned an inquest, 
 
460 ORDERS AND DECREES 
 
 duly taken between them and twelve jui-ors, lawfully empan- 
 nelled and charged before them, on the twenty-sixth day of the 
 present month, whereby it appears that the said L. A. H. is now, 
 and has been for fifteen years at least a lunatic without lucid in- 
 tervals, so that she is not sufficient for the government of herself, 
 and her lands, tenements, goods and chattels — ^the court on the 
 motion of the petitioners, A. L. and M, B., doth adjudge and 
 order, that until the further order of the court, the person of the 
 said L. A. H. be committed to the said A. L, and M. B., who are 
 hereby authorised and required to take such measures for the care 
 and comfortable maintenance of the said L. A. H. as to them 
 may seem meet, for the reasonable expenses whereof the court 
 will make appropriation out of the fund of the said L. A. H., 
 now under the control of the court. 
 
 And the court doth further order that the brothers and sisters 
 of the said L. A. H., and the husbands of such of the sisters as 
 are married, be summoned to appear here on the first day of the 
 next term, directed by law to be holden for the trial of civil 
 causes, to shew cause, if any they can, why the custody of the 
 person of the said L. A. H,, and the management of her property 
 should not be finally committed to the said A. L. and M. B., or 
 some other proper committee. 
 
 And one of the commissioners of this court is required, after 
 due notice to the said A. L. and M. B., and the said brothers and 
 sisters of the said L. A. H., and the husbands of the married 
 sisters, to state and report to this court an account of all the 
 estate, real and personal, belonging to the said L. A. H., and 
 what persons, in the opinion of the said commissioner, would be 
 the most suitable to whom to commit finally the care of the per- 
 son and management of the property of the said L. A. H; 
 
 (^) L. A. H., exparie. 
 
 The order made in this cause at the last term, having been 
 duly served on such of the brothers and sisters of L. A. H., and 
 on the husbands of the married sisters, as have known residences 
 in this commonwealth, and notice having been given to the 
 others, by the due publication of the said order for eight weeks, 
 in one of the newspapers of this city ; and the commissioner 
 having made his report pursuant to said order, to which there is 
 no exception, whereby it appears that the only estate of the said 
 T^.A. H. known to the said commissioner, consists of the second 
 and third instalments of the purchase money of a tenement in 
 the said report mentioned, amounting to the sum of seventeen 
 hundred and thirty-three dollars and thirty-two cents, whereof 
 one-half fell due on the fourth of November, of the present year, 
 (1831,) and the other half will fall due on the fourth day of Junei , 
 in the year eighteen hundred and thirty-five ; and' whereby it 
 also appears, that the petitioners A. L. and M. B., are the most 
 suitable persons to whom to commit tlie care and management 
 
VIRGINIA STATE COURTS. 
 
 461 
 
 of the said L. A. II. and of her property. Anil the said A. L. 
 and Bi. B. having made a report of their proceedings under the 
 said order, sho-wing that they have placed the said L. A. H. in 
 the Friend's Asylum, for the recovery of insane persons, near the 
 city of Philadelphia ; that they have incurred in her reioaoval and 
 board an expense of one hundred and ninety-one dollars and fifty 
 cents, and contracted to pay for her btord, medical attendance 
 and all other expenses, the sum of four dollars per week, to 
 which report no exception has been taken, and no person appear- 
 ing to contest the petition of the said A. L. and M. B., the court 
 doth therefore adjudge, order and decree, that the said A. L. and 
 M. B. be, and they are hereby appointed a committee, to whom 
 the custody, care and managemeilt of the person and property of 
 the said L. A. H. is committed, to be kept and managed accord- 
 ing to law, until the said L. A. H. shall be restored to her under- 
 standing, and lawfully discharged from their custody. And the 
 said A. L. and M. B. are hereby authorised to check on the Bank 
 of Virginia for that instalment of the purchase money aforesaid, 
 which fell due on the fourth day of November, one thousand 
 eight hundred and thirty-four, and to collect, and if necessary to 
 check on the said bank for the other instalment, when it shall fall 
 due, and out of the moneys aforesaid, and the interest which may 
 from time to time be received from them, they are authorised and 
 required to pay such of the costs of the suit lately pending in 
 this court, wherein J. F. R. was plaintiff, and the said L. A. H. 
 was defendant, acting by her committee, the said A. L., as the 
 said L. A. IL, or her said committee is chargeable with, also the 
 costs of this proceeding. And the said A. L. and M. B., are re- 
 quired to apply the residue of the moneys aforesaid, and of the 
 interest which may be received therefrom, to defray the jSroper 
 costs and charges of the support, maintenance ard care of the 
 said L. A. H. ; subject, however, to the control and direction of 
 this court, such as may be given them from time to time. 
 
 And the court doth refer the report of the said A. L. and M. 
 B. to a commissioner of this court, who is required to examine 
 the vouchers and other evidence in support thereof, and make re- 
 port thereupon to the court. 
 
 And the court doth further order, that the said A. L. and M. 
 B., from year to year, render before a commissioner of the court, 
 an account of their receipts and disbursements, under the autho- 
 rity hereby conferred upon them, and that the commissioner 
 make report thereupon to the court. But the effect of this decree 
 is to be suspended till the said A. L. and M. B. shall enter into 
 bond with good security, in the penalty of three thousand four 
 hundred dollars, payable to the said L. A. II., her executors and 
 administrators, and conditioned for the faithful discharge of their 
 duties as committee of the said L. A. II., and that they will, well 
 and truly collect, manage, disburse and account for the moneys 
 and other estate of the said L. A. IT., if any other there be withjo 
 .39 
 
462 OEDERS AND DECREES 
 
 this commonwealth known, or to become known to them, accord- 
 ing to the authority conferred upon them by this decree, and 
 shall file such bond with the clerk of this court.* 
 
 DECREES CONCERNING INJUNCTIONS, (ScC. 400, 412.) 
 
 Order of injunction restraining waste. 
 
 (Names of parties.) 
 
 On motion of the plaintifi's by counsel, and for good cause 
 shewn, a writ of injunction is awarded them to injoin and re- 
 strain the defendant E. B., his agents and all others concerned, 
 from committing waste upon the tract of land in the bill men- 
 tioned, whereof J. W. died seized, lying in the county of Hen- 
 rico, and containing about ninety acres, and from cutting and re- 
 moving anything from it until the further order of the court. 
 But the plaintiffs are not to have the benefit of this order, until 
 the adult plaintiff shall enter into bond, with sufficient security, 
 in the clerk's office of this court, in the penalty of two hxindred 
 dollars, payable to the defendants, and conditioned to pay to 
 them, or either of them, all such damages and costs as they or 
 either of them may sustain in consequence of the said injunction, 
 in case the same shall be dissolved. 
 
 Oi'der for injunction to judgment. 
 
 (Names of parties.) 
 
 On motion of the plaintiff by counsel, and for good cause 
 shewn, a writ of injunction is awarded him, to injoin the defend- 
 ant S .L., l^is agents, attorneys and all others concerned, from 
 further proceeding on a judgment recovered by that defendant 
 against the plaintiff, in an action of detinue, in the Circuit 
 Court for the county of Powhatan, until the further order of the 
 court. 
 
 But the plaintiff is not to have the benefit of this order, until 
 he shall enter into bond, with sufficient security, in the clerk's 
 office of the said Circuit Court. &c., &c., in a penalty equal to 
 dovible the amount of the said judgment, conditioned as the law 
 requires ; and until he shall also file with the clerk of the said 
 court, a release of all errors at law in the said judgment and 
 proceedings. 
 
 "^ These forms in regard to insane persons were drawn before the act 
 fo^nd in Code of Virginia, chap. 85. That chapter provides, for the ap- 
 pointment of committees of lunatics. If its provisions be followed, the orders 
 in the appointment of a committee may be easily framed. 
 
 i 
 
VIRGINIA STATE COURTS. 463 
 
 Order dissolving injunction and dismissing bill. 
 
 (Names of parties.) 
 
 This cause came on this day to be heard on the bill, answer of 
 the defendant with replication thereto, and an exhibit filed with 
 the bill, and was argued by counsel. On consideration whereof, 
 the court doth adjudge, order and decree, that the injunction 
 awarded the plaintiff on the first day of May, eighteen hundred 
 and forty-seven, to injoin and restrain the defendant, his agents, 
 attorneys, and all others, until the farther order of this court 
 from proceeding, to enforce the judgment in the bill mentioned, 
 as to the sum of fifty dollars thereof, which judgment was re- 
 covered by the defendant against the plaintiff in the Circuit Su- 
 perior Court of Law and Chancery for the county of Henrico 
 and city of Richmond, on the common law side, on the twenty- 
 fourth day of June, eighteen hundred and forty-one, be dissolved ; 
 that the bill of the plaintiff be dismissed, and that he do pay to 
 the said defendants his costs by him about his suit in this behalf 
 expended. 
 
 Dismission of bill after dissolution of injunction. 
 (See sect. 411.) 
 
 (Names of parties.) 
 
 This being the term since the dissolution of the injunc- 
 tion awarded the plaintiff to stay the execution of the judgment 
 on the bill mentioned, and no cause being shewn for the con- 
 tinuance of the said bill, on the motion of the defendants, by 
 their counsel, it is ordered that the same be dismissed, and that 
 the plaintiffs pay to the defendants their costs by them about 
 their defence in this behalf expended.* 
 
 Injunction perpetuated. 
 
 (Names of parties.) 
 
 This cause, in which the bill hath been taken ' for confessed 
 against the defendant, came on this day to be heard on the 
 bill and an exhibit, and was argued by counsel. On cc^nside- 
 ratiou whereof, the court doth adjudge, order and decree, that 
 the injunction awarded the plaintiff the 27th day of Septem- 
 ber, 1823, to injoin the defendant from selling the slave Franklin, 
 in the bill mentioned, under an execution sued out of the clerk's 
 office of the Superior Court of Law for the county of G., in favov 
 of the defendant, against J. P., security for R. D., be made per- 
 petual ; and that the defendant do pay to the plaintiff her costs 
 by her about her suit in this behalf expended. 
 
 * It is the clerk's duly to enter this dismission. See Code of Virginia' 
 chap. 179, sec. 14. 
 
4^ ORDEKS AND DECBEE8 
 
 PRACTICAL NOTES TO DECREES CONCERNING INJUNC- 
 TIONS. 
 
 See " Practical Notes on Bills in Equity, &c., " Eden on Injuncliona." 
 The Superior Courts of Chancery have power (upon general principles 
 of equity,) to direct the venue to be changed, after issue joined in a county 
 or inferior court, where it appears that strong prejudices existed against 
 the defendant, whicli were unknown to him, until after such issue was 
 joined, and that a fair and impartial trial could not be expected in the court 
 in which the suit was depending. In such case a judgment is not req uisite, 
 to authorise the chancellor to grant the injunction. Darrmdatt v. Wolfe, 
 i Hen. & Munf. 246. 
 
 If by an agreement under seal, between the vendor and the purchaser of 
 a tract of land, it be covenanted, that if any part thereof should be re- 
 covered by law from the purchaser, the vendor will abate or refund in pro- 
 portion; and that he will not bring suit upon the bond for the purchase 
 money, until the quantity ol land, which the purchaser is to get, be ascer- 
 tained, provided the purchaser prosecute a suit for that purpose in a rea- 
 sonable time; a court of equity will give relief by injunctiua against a 
 premature suit on the bond, and if it appear that the purchaser prose- 
 cuted his suit iu a reasonable time, and could not recover the land, the in- 
 junction will be perpetuated, the money paid refunded, the bond surren- 
 dered and cancelled, and the contract rescinded. BullitVs ex^ors v. Sotiff- 
 ster't adm'rs, 3 Munf. 54. 
 
 When injunction granted. 
 
 Randolph e. Randolph and als. 3 Munf. 99. Wilson and als. v. Butler 
 and ale., 3 Munf. 559. Scott and wife t>. Holliday and als., 5 Munf. 103. 
 Homer v. Marshall's adm'x 5 Munf. 446. Lewis's odm'r r. Wyatt, 2 Rand. 
 114. Harrison v. Sims, 6 Rand. 506. Crawford v. Thurmond and als., 3 
 Leigh, 85. Miller r. Trueheart,&c., 4 Leigh, 569. Sims c. Harrison and 
 als., 4 Leigh, 346. Keytons o. Bradl'ords, 5 Leigh, 39. Koger and als, v. 
 Kane's adra'r and heirs, 5 Leigh, G06. Miller r. Argyle's ex'or and als. 
 5 Leigh, 460* Whitton's adm'r r. Terry, 6 Leigh, 189. Calloway ». Alex- 
 ander, &c., 8 Leigh, 114. Mason c. Nelson, 11 Leigh, 227. Clarke and 
 als. c. Curtis, 11 Leigh, 559. Anderson's ex'ors v. Anderson, 11 Leigh, 
 616. Hickerson's adm'r v. Helm, 2 Rob. 628. Cabaness 9. Matthews and 
 ale. v. 2 Grat., 325. Roberts v. Jordan, 3 Munf. 488. Clarke t>. Hardgrovei 
 &c., 7 Grat., 399. Watson e. Fletcher, &o., 7 Grat., 1. Rust aud als. e- 
 Ware, 6 Grat., 50. Peatros.3 o. McLaughlin, 6 Grat, 64. Valhier r. Lane, 
 fi Grat., 246. Mc(;ielland r. Kinnaird, 6 Grat., 352. 
 
 On tekat terms injunction to judgment at law granted. 
 
 Warwick e. Norvell, 1 Leigh, 96. See practical notes to bills ia 
 eqeity, &c. 
 
VIRGINIA STATE COURTS. 465 
 
 Whctt injunction refused. 
 
 Ross p. Woodville and als., 4 Munf. 324. Poage {:. Bells and als., 2 
 Rand. 586 ; (because plainliff not a party to suit at law injunction to judg- 
 ment refused. Jordan's adm'xc. Williams, 3 Rand., 501.) Rliodes ti. Cou- 
 sins, 6 Rand., 188 ; sed vide Code of Virginia, chap. 179, sec. 2. Norris t>. 
 Hume, 9 Leigh, 334. Miller o. Crews, 2 Leigh, .j76. Overseers of the Poor 
 V. Hart, 3 Leigh, 1. Long's ex'or, &c. v. Israel and als. 9 Leigh, 556. 
 James River and Kanawha Company c. Anderson, &c., 12 Leigh, 278. 
 Hudson r. Kline, 9 Grat., 379- 
 
 Security on graniini^ Uijunction. 
 
 Error not to require security on granting injunction, save in cas« of ex- 
 ecutors, &c. Lomaxr. Picot,2 Rand. 247. New sccurity^required, (Ch. 
 T.) Ross V. Pleasants and als., 1 H. and M., 1. 
 
 An injunction to remove obstructions, &o., ordered ;it hearing of the 
 tause. Brooke v. Barton, 6 Munf. 306. 
 
 Dissolntion of injunction. 
 
 On motion to dissolve injunction on bill alone, before answer, the bill 
 will be taken as true. Poatross v. McLauglin, 6 Grat. 64. 
 
 An injunction to a judgment at law not showing equity on its face, dis- 
 solved without answer, as iraprovidently granted. Slack r. Wood, 9 Grat. 40. 
 
 Pending a bill for an injunction to a judgment, and for a rescission of a 
 contract for the purchase of land, on the ground of an incumbrance and 
 defect of title, the vendor removes the incumbrance and procures th* title . 
 The injunction is properly dissolved, but without damages, and with costs 
 10 the plaintiff. Young's adm'r. and Bowyeri?. McClung and als., 9 Grat., 
 336. But if vendee might have obtained relief by supplemental bill or pe- 
 tition in another pmding suit, he shall not have costs. Ibid. 
 
 Perpetuation of injunction. 
 
 Trueheart r. Price, 2 Munf. 468. 
 
 DECREES CONCERNING HUSBAND AND WIFE. (See ailte.) 
 
 Dea-ee for divorce. [A vinculo matrimonii, <S"c.] See 
 Code of Virginia, chap. 109. 
 
 (Names of parties.) 
 
 THs cause, iu which the plaintiff appears to have proceeded 
 
 against the defendant, who is out of this commonwealth, in the 
 
 mode prescribed by law against absent defendants, and she still 
 
 failing to appear and answer, came on this day to be heard on the 
 
 39* 
 
466 OKDERS AND DECREES 
 
 bill, the exhibits filed and examinations of witnesses, and was 
 argued by the counsel for the plaintiff: On consideration whereof 
 the court, being of opinion that the charge of adultery against 
 the defendant is fully proved, doth adjudge, order and decree, 
 that the marriage heretofore solemnized between T. P. and J. M. 
 P. be and the same is hereby^dissolved, the said T. P. forever 
 divorced from his wife, the said M. P., and all the right, title 
 and interest of the said M. P. in or to the estate, real and per- 
 sonal, of the said T. P., shall henceforth cease and determme ; 
 and that the plaintiff recover from the defendant his costs by 
 him expended in the prosecution of this suit. And nothing fur- 
 ther i-emaining to be done in this suit, it is ordered that the same 
 be removed from the docket ; but leave is reserved to the parties 
 to make application to the court for such further orders as are 
 authorised by law. 
 
 Same in a cause in which Attorney General was made a 
 party. 
 
 M. A. S., by W. "W., her next inenA, plaintiff v. E. G. and S. 
 S. B., defendants. 
 
 This cause, in which the Attorney General of the Common- ■ 
 wealth has appeared to defend the same, on behalf of the Com- 
 monwealth, pursuant to law, the defendant E. G„ not having en- 
 tered his appearance, came on this day to be finally heard upon 
 the bill and exhibits, and examination of witnesses, and upon 
 proof of the publication of the order entered herein on the eighth 
 day of January last, as thereby directed, and was argued by the 
 counsel for the plaintiff, and by the Attorney General on behalf 
 of the Commonwealth : On consideration whereof the court doth 
 adjudge, order and decree, that the marriage heretofore had and 
 solemnized between the defendant E. G. and the plaintiff M. A. G., 
 formerly M. A. W., shall be and the same is hereby dissolved, 
 and that the said M. A. be forever divorced from the said E. G. ; 
 and all right, title or interest of the said B. in or over the estate 
 or person of the said M. A., whether the said estate be real or 
 personal, shall henceforth forever cease and determine ; and the 
 said M. A. shall be at liberty to marry again, and shall be re- 
 stored to the condition of a feme sole, with all other rights 
 attaching to such condition. The court doth further adjudge, 
 order and decree, that all the right, title and interest of the said 
 M. A., in or to the estate of the said E., whether the estate be 
 real or personal, shall henceforth cease and determine,(a) but the 
 said E. shall not in consequence of this decree be at liberty to 
 contract another lawful marriage during the lifetime of the said 
 
 (a) See Jennings and als. v. Jlontague, 2 Grat. 350. 
 
VIRGINIA STATE COURTS. 467 
 
 M. A. ; but the said E., from marrying again in the lifetime of 
 the said M. A., sliall be as fully and effectually restrained as if 
 this decree of divorcement had never been made. 
 
 The court doth further adjudge, order and decree, that the 
 female child of the marriage of the said B. and M. A. G. 
 
 named , shall remain in the care and custody, and under the 
 
 control of the said M. A. ; and all the lawful power and authority 
 of the said B. over the person and estate of the said female child 
 shall cease and determine during the lifetime of the said M., or 
 until such time as this or some other court of competent juris- 
 diction shall order, or decree to the contrary. And the court 
 doth further adjudge, order and decree, that the said E. provide, 
 as far as in his power, for the due maintenance of the said 
 female child, and liberty is reserved to the said M., or to the said 
 child by her said mother, or next friend, to apply to this court 
 for such further order touching the maintenance hereby directed 
 for the said child as may be proper. And the court doth further 
 adjudge, order and decree, that the said B. G. do pay to the plain- 
 tiff her costs expended in the prosecution of this suit, and that 
 he do also pay to the commonwealth her costs in defending the 
 same. 
 
 Decree for divorce and alimony. (See Code of Virginia, 
 chap. 109, sec. 13.) 
 
 A. B. by N. 0., her next friend, plaintiff, against R. B., de- 
 fendant. 
 
 This cause came on, &c. On consideration whereof, the court 
 doth adjudge, order and decree, that the marriage heretofore had 
 and solenmized between the defendant R. B. and the plaintiff A. 
 B., formerly A. K., shall be and the same is hereby dissolved, 
 and that the said A. B. be forever divorced from the said R. B. ; 
 and the court doth further adjudge, order and decree, that the de- 
 fendant do pay, annually, unto the said plaintiff the sum of 
 
 I , in quarterly instalments, on the first days of January, ic. 
 
 in each year, that sum, being in the opinion of the court, a suffi- 
 cient maintenance and support for the said A. B. And the court 
 doth further adjudge, order and decree, that the said A. B. do 
 pay unto the plaintiff her costs expended in the prosecution of 
 this suit. 
 
 Notes. — See notes to next form. 
 
 Order for payment to plaintiff pending suit. 
 
 J. N., a married woman, who sues by her next friend, M. L., 
 'plaintiff, against 0. N., defendant. 
 
 On motion of the plaintiff, by counsel, and it appearing to the 
 court from the pleadmgs and proofs in this cause, that the plain- 
 
468 ORDERS AND DECREES. 
 
 tifi' has no means of support during the pendency of this suit, or 
 of prosecuting the same, it is ordered that the said C. N. do pay 
 
 unto the said J. N., annually, % , in quarterly instalments, on 
 
 the first days of , in each year, that sum being in the 
 
 opinion of the court a reasonable allowance to the said plaintiff, 
 taking into consideration the value of the defendant's estate. 
 
 NoTIs — A similar order may be made in tlie case of infants fortheir maiu- 
 tenance and education, when there are funds within the control of court to 
 which infants are indisputably entitled. See U Rob., p. 346 ; 3 John. Ch. 
 Rep. 1. 
 
 In Purcell e Purcell, 4 H. &. M., 507, the court ordered the payment of 
 twenty-fire dollars quarterly to the plaintiff, to be applied towards her sup- 
 port and maintenance pending the suit, unless the defendant should show- 
 cause to the contrary by a given day. 
 
 The foregoing lorms apply exclusively to suits for divorce. In addition 
 to these the following notes are subjoined, referring to other subjects : 
 
 PRACTICAL NOTES. 
 
 See Code of Virginia, chap. 108, 109, 110. 
 
 As to what property of wife deemed personal estate, see Fletcher f Ash- 
 burner, 1 Bro. C.C 497; Ashby r Palmer,! Meriv. 300, 3 Leigh, 255: 
 Pratt « Taliaferro, 3 Leigh, 419 ; 2 Grat., 280 ; Reading c Blackwell, Bald- 
 win's C. C. R., 175. See also Dade v Alexander, 1 Wash , 30; Common- 
 wealth V Martin's cx'or, &c., 5 Munf., 117 ; Tazewell, &c. v Smith'sadm'r, 
 
 1 Rand. 313 ; Evans, &c. v Kingsbury, &c., 2 Rand. 120 ; Turner v 
 Street, 2 Rand., 130 ; 5 Leigh, 442 ; 7 Leigh; 366 ; 10 Leigh, 536. 
 
 As to effect of marriage on contracts between a man and a woman en- 
 tered into before marriage. See 1 Tuck. Com., 110, and cases cited. 2 P. 
 Wms., 243 ; 2 Vern.480, 1 ; 2 Atk., 97 ; Prec. Ch. 41; Dick. 140 ; Q Vent., 
 343 ; Vern. 409, 3 Leigh, 255. When wife charges her separate estate with 
 payment of husband's debts, equity will decree the husband's assets to be 
 applied in exoneration of her estate, or in repayment of the money ad- 
 vanced. 2 Vern., 347,689 ; 1 Bro. P. C. 1 ; 2 ^^ern., 604; 1 P. Wms., 264; 
 
 2 Atk. 384; Fonb. Eq., 102, 3; Story's Eq. 
 
 When conveyance of separate estate to a married woman a fraud en 
 marital rights of husband. 1 Tuck. Com., 113. For other oases of fraud 
 upon marital rights of husband, see Macqueen on Husband and Wife, p. 
 35; Crane v Morris's lessee, 6 Peters, .598; 4 Wajh. C. C. R., 224; 2 
 Leigh, 11. 
 
 With respect to contracts between husband and wife subsequent to mar- 
 riage. 1 Tuck. Com., Ill ; Co. Litt. 112, n, 187, b.; 1 P Wms. 126; 2 P. 
 Wms. 79, 316; 3 P. Wm9.,334,339; 1 Atk.,270; 3Atk.,399; lVern.,245; 
 
VIUGINIA STATE COURTS. 469 
 
 1 Atk., 270; 2Ves.666; lFon.,103; 6 Munf., 1; 10 Ves.,139i 7 John C. 
 R., 57j 5 John C. R. 431, See Code of Virginia, chap. US, sec. 2; also 
 lec. 4 i see 2 Brock. C. C, R., 285. 
 
 Whenconrt of equity will naakc provision for wile out of her property, 
 »ee 1 Rand. 372 ; U Rob. Pr. 150, and cases cited. 2 John Ch. Rep. 206; 
 6 John Ch. Rep., 33 ; 5 John Ch. Rep., 464 ; but see 2 Grat. 98. When it 
 will protect her property from injurious effects arising from acts or admis- 
 sions of husband, 4 Rand. 397. 
 
 Cases of alimoay; see anU^ p. 467; aUo 4 Kuud., 667; 1 John Oh. 
 Rep., 364. 
 
 See also Seton on Decrees, 255, ct acq., for decrees respecting /emeu 
 eoverl and practical notes. 
 
 For notes on Dower, see p. 368. Also Herbert v Wren, 7 Cranch,, 370 -, 
 9 Brock. C. C. R., 256. 
 
 As to other rights of wife, see 2 Munf., 421 ; 5 Munf., 42 ; I ftand., 35.'J : 
 
 2 Leigh, 183 ; 9 Leigh, 20O ; 12 Leigh, 512 ; 2 Rob. 340. 
 
 DECREES KESPKCTINU WILLS. 
 
 Jl decree construing will. 
 
 P. & als., plaintiff v 11. & als., defendants. 
 
 This day came the plaintiffs by their counsel and filed their 
 bill, and the defendants appeared by counsel and filed their an- 
 swers, to which the plaintiffs by counsel replies generally. 
 Whereupon, this cause being docketed by consent of parties by 
 counsel, the same came on to be heard by like consent on the 
 bill, answers with replications and exhibits filed, and was ar- 
 gued by counsel. On consideration whereof, the court is of 
 opinion, and doth adjudge and decree, that according to the true 
 construction of the will of J. D. M., deceased, the trustees there- 
 by contemplated for the benefit of his grand-daughters, have 
 power from time to time to change the inyeatment of the trust 
 subject, that the sum mentioned in the bill of nineteen hundred 
 and eighty-nine dollars and ninety-three cents, with legal interest 
 thereon from the first day of December, eighteen hundred and 
 forty-seven, is a part of that trust subject, if the complainants 
 J. B. M. and D. M., had been duly appointed trustees for the 
 benefit of S. M., as well as the other grand-daughters of the tes- 
 tator, they might lawfully require payment of the same from the 
 defendant, and he would not be bound to supervise their acts, or 
 see to the application of the trust fund, or incur any danger from 
 such payment, other than that (if any) which may arise from 
 the accident of the loss of the bond. Wherefore the court doth 
 adjudge, order and decree, as follows : 
 
470 ORDERS AND DECREES 
 
 Firisl. That the said J. B. M. and D. M., be and they are here- 
 by appointed joint trustees for the said S. M., jointly with the 
 other grand-daughters of the said J. D. M., deceased, under his 
 will, and that they be and are hereby invested with all the power, 
 authority and discretion which the said will would have conferred 
 on them had they been expressly named as trustees in the said 
 will, xlud that all their actings and doings, assuming to act as 
 trustees for the said S. jointly with the other grand-daughters 
 aforesaid, so far as the same have been within the limits of their 
 authority as such trustees, for such other grand-daught«rs do 
 stand approved aud confirmed in the same manner, and to the 
 same extent, as if they had been previously appointed trustees 
 for the said »S. M., by a court of competent jurisdiction, and in a 
 proceeding to which she was a party ; and that the said trustees 
 be and they are hereby required before proceeding to execute 
 said trust to enter into bond in the clerk's ofiice of this court, 
 with good and sufficient security, in the penalty of nine thousand 
 dollars, payable to the commonwealth of Virginia, and condi- 
 tioned that they will faithfully perform and fulfil their duties as 
 trustees as aforesaid for all the said grand-daughters of the said 
 •I. D. M., deceased. 
 
 Second, That the defendant C. K., do pay into the Bank of 
 Virginia, to the credit of this cause, subject to the order of this 
 court, the said sum of nineteen hundred and eighty-nine dollars 
 and ninety-three cents, with legal interest thereon from the said 
 first day of December, eighteen hundred and forty-seven, until 
 such payment. 
 
 T?drd. That the complainant I>. M., and the defendant H. W. 
 M., do execute a deed of release, referring to this decree, and re- 
 leasing and reconvoying unto the said defendant C. R., the pro- 
 perty conveyed by the deed, made the thirty-first day of May, 
 eighteen hundred and forty-two, and admitted to record in the 
 office of the court of hustings for the city of Richmond, on the 
 first day of June, eighteen hundred and forty-two, between the 
 said C. E. and M. S., his wife of the first part, D. M. and H. W. 
 M. of the second part, and J. D. M. of tlie third part, and ac- 
 knowledge said deed, so that it may be duly admitted to record; 
 and when said deed shall be delivered to the said R., or to the 
 clerk of this court for him, and the fact of such delivery certi- 
 fied, by whichever of them shall receive the same, upon an offi- 
 cial copy of this decree, then that the said J. B. M. and D. M., 
 as trustees for the grand-daughters of the said J, D. M., deceased, 
 be and they are hereby authorised to check on the Bank of Vir- 
 ginia, on an attested copy of this decree for the money above 
 directed, to be deposited therein to tJie credit of this cause. 
 
 Fourth. That the parties respectively have leave to apply here- 
 after to this court for any other, or further order that may be 
 necessary to carry out and fulfil the foregoing decree : and that 
 
VIRGINIA STATE COURTS. 471 
 
 the said parties, who are adults, respectively pay their own costa 
 of this suit. 
 
 Practical notes to decrees concerning wills. 
 Sec Code of Virginia, chap. 122. Jarman on Wills. 
 
 DECREES FOR SPECIFIC i'EKFORMANCK. 
 
 A. M., jjlaintilf, against C. 1'., dej'endan/. 
 
 This cause eume on, &c. On consideration whereof, the court 
 doth adjudge, order and decree, that upon the payment of the 
 sum of five hundred dollars by the said A. >I., plaintiff, (with- 
 out interest,) (a) to the said C. B., defendant, the said C. D. do 
 execute a good and sufficient grant and conveyance to the said A. 
 M., with general warranty and the usual covenants of title, 
 granting and conveying to the said A. M. the land in the bill 
 mentioned, according to the metes and bounds laid down in the 
 agreement in writing between the said A. 51. and C. D., bearing 
 
 date on the day of , and filed as an exhibit with the 
 
 plaintiff's bill. And it i« ordered that the said defendant do pay 
 unto the plaintiff his costs by him about his suit in this behalf 
 expended. And leave is given the said plaintiff to apply to this 
 court for such other relic? in the premises as may be necessary. 
 
 - NoTKs. — Sometimes i\ commissioner id appointed to execute the deed, 
 and the party is ordered to unite in it, and directed to give such a war- 
 ranty as the terms of the contract of sale implied. 
 
 In the following case, the chancellor ordered the contract to he specifi- 
 cally i)erformed, and the seller to abate a part of the purchase money : 
 
 Another decree for specific performance. 
 J. p.. plaintiff, against B. P., defendant. 
 
 This cause came on this day to be heard on the bill, answer 
 with replication thereto, the exhibits filed, and examinations of 
 witnesses,'and was argued by counsel : On consideration whereof, 
 it appearing to the court that B. P. did, on the second day of 
 December, eighteen hundred and fifty-four, purchase from j". P. 
 a tract of laud in the county of Henrico, estimated to contain 
 sixty acres, but which upon re-survey appears to have actually 
 contained sixty-two and a half acres, at and for the price of five 
 hundred dollars, and immediately took possession thereof, and 
 
 (a) Of course it will depend upon the special circumstances of each case 
 whether interest will or will not be allowed. If interest be proper, slate 
 the time at which it will commence. 
 
472 ORbBRS AND DficfiJB^ 
 
 oxorcised various acts of ownership thereon, and has paid no por- 
 tion of the purchase money therefor. It further appears Sxat 
 although the actual quantity seems to exceed that estimated by the 
 parties, yet there may very probably be a difference not less than 
 one-fourth of an acre, nor more than four acres, upon the highest 
 estimate that can be made consistently with the evidence, be- 
 tween the lines run by the surveyor and those previously pointed 
 out to the defendant, according to which he alleges he alone 
 agreed to purchase ; and it may upon the evidence be true that 
 such was his understanding, and although this difference is too 
 slight, after the long continued possession of the defendant, sub- 
 sequent to his knowledge of the fact, and in view of the other 
 circumstances of the cose, to authorise a re-scission of the con- 
 tract, yet in the opinion of the court it may be just to compensate 
 the defendant for this deficiency, which may easily and properly 
 be done, by an abatement pro tanio of the purchase money. 
 And no other ground of defence being suJBciently established by 
 the proofs, nor any reliance by way of plea, or answer specially 
 placed on the statute of frauds and perjuries, which, however, 
 had it been specially pleaf?ed, the court would have considered 
 as no sufficient bar, under the circumstances of the case, to the 
 specific performance sought by the plaintiff; und neither party 
 having asked for a reference of the title, or reserving of the 
 quantity of land, so iis to ascertain more precisely the real differ- 
 once in quantity between the lines said to have been pointed out 
 to the defendant and those contained in the plat of the survey, 
 the court, taking into view all the circumstances of the case, is of 
 opinion that the contract between the parties should be specifi- 
 cally performed, and therefore doth adjudge, order and decree, 
 chat upon the tender by the plaintiff of the deed filed in this 
 cause, if the same be approved by the defendant's counsel, or if 
 not upon the tender of a good and sufficient deed, with general 
 warranty by J. 0. S., who is hereby appointed a special commis- 
 sioner for tho purpose, for the tract of land in Uie proceeding 
 mentioned, contracted to be sold by the plaintiff to the defendant, 
 the said defendant do pay to the plaintiff the sum of four hun- 
 dred and fifty dollars, with legal interest thereon, from the se- 
 cond day of DocemljCf, eighteen hundred and forty-four, until 
 paid ; and unless the said sum be paid by the said defendant, or 
 some one for him, with interest as aforesaid, within sis months 
 from the date of this decree, then the sheriff of the county of 
 Henrico, or one of hia deputies, who is hereby appointed a com- 
 missioner for the purpose, proceed to sell the tract of land afore- 
 said, at public auction, on tho premises, to the highest bidder, for 
 cash, as to so much of the purchase money a.g will be sufficient to 
 satisfy this decree, and upon such credit as to the residue as the 
 defendant may direct, or as the said commissioner may deem judi- 
 cious ; and out of the cash proceeds of sale, the said sheriff is direc- 
 ted to pay to the plaintiff the principal and interest hereby decreed. 
 An(! the said commissioner ie directed to make report of any pro- 
 
VIRGINIA STATE COUllTS 473 
 
 ceedings by him hereunder to the court. And unless the parties 
 shall agree among themselves upon the amount to be allowed for 
 the alleged difference of quantity, between the lines said to have 
 been pointed out to the defendant and those pursued by the sur- 
 veyor, then either party, upon notice, may cause the said tract 
 to be again surveyed, to ascertain the said quantity, in which 
 case the surveyor is to return a report and plat of the said sur- 
 vey to the court. 
 
 And the court doth adjudge, order and decree, that the defend- 
 ant do pay unto the plaintiff the costs by him expended in the 
 prosecution of this suit. 
 
 Decree in a case in which assignee for value of note given 
 for purchase of land, h-ought suit against his assignor, 
 the vendor and the vendee, for a specific performance of 
 contract, (a) 
 
 This cause came on, &,a. On consideration whereof, the court 
 doth adjudge, order and decree, that the plaintiff recover of the 
 said Q. B. W. the sum of $154 34, with interest thereon from the 
 5th day of November, 1838, until paid, and his costs by him 
 about the prosecution of his suit in this behalf expended ; and 
 upon the payment of said debt, interest and costs, it is further 
 ordered that the clerk do deliver to the said Q. B. W. the origi- 
 nal deed filed, as an exhibit with the bill, retaining a certified 
 copy thereof, to be filed with the papers in the cause. And it 
 is further adjudged, ordered and decree, that unless the said Q. 
 B. W. shall pay to the plaintiff the debt, interest and costs afore- 
 said, within sixty days after the entering of this decree, the 
 
 sheriff of G county, after advertising the time and place of 
 
 sale by advertisement published, &c., and posted, &c., for four 
 weeks successively, do proceed before the court-house of said 
 county, on some court day, to sell said land in said deed described, 
 upon a credit of six and twelve months, taking from the pur- 
 chaser bond and security, and retaining a lien on the land for the 
 security of the purchase money, and report hiu proceedings in 
 order to a final decree. 
 
 (a) Hamia V Wilson. 3 Grat. 216. Id this case tlie vendor retained the 
 title to the land as a eecuriiy for the purchase money. The vendor subse- 
 quent to sale assigned for value a note given for purchase money. The 
 Court of Appeals of Virginia, held that the assignee of the vendor might 
 maintain a suit for specific performance against his assignor and the ven- 
 dor, and directed the decree to be entered, a copy of which is found aboTe. 
 
 40 
 
414 
 
 ORDERS AND DECHEES 
 
 PRACTICAL NOTES TO DECREES FOR SPECIFIC PER- 
 FORMANCE. 
 
 ScB " Practical Notes to Bills in Equity, &c." 
 
 When refused. 
 
 Ward V Webber & als., 1 Wash. 279; Smallwood v Mercer and Hans- 
 borough 1 Wash. 290; Graham v Cull, 5 Munf. 396; Graham v Hendren, 
 5 Munf. 185 ; Harvie & als. v Banks, I Rand. 408 ; Darlington v McCoole, 1 
 Leigh, 36 ; Reed's heirs v Vannorsdale & ux., 2 Leigh, 569 ; Watts &; als, 
 V Kcnney & ux., 3 Leigh, 272 ; Payne v Graves, 5 L«igh, 561 ; Moore's' 
 adm'rs v Fitz Randolph & als., 6Lei?h, 175 ; Pigg v Corder, 19 Leigh, 69; 
 McCann v Janes,! Rob. 256; Bowles v Woodson, 6 Grat. 78. 
 
 When compelled. 
 
 White V Atkinson, 2 Wash. 94; Longv Colston,l H. & M. Ill ; Hookr 
 Ross, 4 M. 97; Beverley v Lawson's heirs, 3 Munf. 317; Birchett & als. t 
 Boiling, 5 Munf. 442 ; Wilde, &c. v Fox, &c., 1 Rand. 164 ; Evans T 
 Kingsberry & wife, 2 Rand. 120 ; Anthony v Leftwich's representatives, 3 
 Rand. 238 ; Tapp v Beverley, 1 Leigh, 80 ; Edwards v Van Bibber, 1 Leigh. 
 231; Foley v McKeown, 4 Leigh, 627; Williams v Lewis, 5 Leigh, 686; 
 Smith V Jones, 7 Leigh, 165; Clarke &• als. v Curtis, 11 Leigh, 559; Han- 
 Ba T Wilson, 3 Grat. 243. 
 
 There should not be a decree to pay money, absolutely on bill for spe- 
 OJfio performance, but court may give defendant election either to pay the 
 money or to perform the agreement specifically. Hook v Ross, H. & 
 M. 30ft 
 
 When deficiency in land sold. 
 
 See Jollife v Hite, 1 Call, 301 ; Anthony v Oldacre, 4 Call 489 ; Ques- 
 ael T Woodlief, 6 Call, 218 ; Nelson v Matthews, 2 H. & M. 164 ; Hull v 
 ^Cunningham's ex'or, 1 Muni. 330; Humphrey's adm'r v McClenahan's 
 idm'r & heirs, I Munf. 493; Grantland v Wight, 2 Munf. 179; Nelson v 
 Carrington ex'or, 4 Munf. 332 ; Fleet v Hawkins, 6 Munf. 188; Tucker v 
 Cocke, 2 Rand. 51 ; Castleman & als. v Veitch & als , 3 Rand. 598; Bed- 
 ford T Hickman, 5 Call, 236 ; Koger & als. v Kane's adm'r and heirs, 5 
 I^igh, 606; Keytons v Brawfords, 5 Leigh, 39 ; Neal v Logan, 1 Grat. 14. 
 
VIRGINIA STATE COURTS. 475 
 
 1, 
 
 X. 
 
 MISCELLANEOUS ORDERS AND DECREES IN THE VIRGINIA STATE 
 COURTS. 
 
 . Order removing cause from county or corporation court. 
 
 (Code ofj Virginia, chap. 169, sec. 4. See also Triplett r. 
 Tyler, 4 H. & M. 413.) 
 
 K. M., plainiiff, against R. K., defendant, on motion for a writ 
 of certiorari, &o. 
 
 On motion of K. M., it appearing to the court that R. K. 
 has had due notice] of this motion, it is ordered that a writ of 
 certiorari he awarded him to remove hither a suit in equity, de- 
 pending in the county {or corporation) court of county,' be- 
 tween the said R. K., plaintiff, and the said K. M., defendant, 
 returnable here to the day of this [or the next) term. 
 
 Note. — Writ may be awarded on petition in vacation. See Code of 
 Virginia, chap. 169, sec. 4. An appellate court may award a writ of cer- 
 tiorari. See Code of Virginia, chap. 182, sec. 1. 
 
 It was the practice formerly to require a bond, when a writ of certio- 
 rari was awarded to remove a suit or action at law. Rob. Forms, edit. 
 1826, p. 90. Qujere : as to the propriety at this time of requiring bond 
 with security in such cases. 
 
 2. Order made to county or corporation court removing cause 
 from a county or corporation court to a circuit court. 
 
 See Code of Virginia, chap. 174, sec. 1 ; also sec. G. 
 
 A. B., plaintiff', against 0. D., defendant. 
 
 It appearing that this suit has remained pending in this court 
 more than one year, it is ordered that the same bo removed to 
 the circuit court for this county. ',' 'l^^,' 
 
 .3. Order for remove of suit from county or corporation 
 court, after notice, by a circuit court. 
 
 See Code of Virginia, chap. 174, sec. 2 ; also sec. 5. 
 
 A. Ji., plainiiff, against C. D., defendant. 
 
 On the motion of A. B., plaintiff in a suit in equity instituted 
 
 in the court of , against C. D., it appearing that the 
 
 said C. D. has had twenty days previous notice of this motion, it 
 
476 
 
 ORDERS AND DECREES. 
 
 is ordered that the said suit be removed from the court of 
 
 this county, (or corporation,) to this court. 
 
 Note. — Does not this power of removal supply the place of a certiorari, 
 as contained in form No. 1, preceding, when that order is entered in court? 
 
 4. Order for removal from one circuit court to another, or 
 to a court of the county or corporation. 
 
 See Code of Virginia, chap. 174, sec. 3 ; also sec. 5. 
 
 A. B., plaintiff, against C. D., defendant. 
 
 On motion of 0. D., the plaintiff A. B., having had due no- 
 tice of this motion, it is ordered that the said suit be removed to 
 
 the court of the county (or corporation) of , \or, when 
 
 not on motion of party, as follows ; The judge of this court being 
 so situated as to render it improper in his judgment for him to 
 decide this suit, it is ordered, &c. as before.] 
 
 5. Order changing plaintiffs to make them witnesses. 
 
 See Gait, &c. v. Carter, Munf 245. 
 
 A. B. and L. M., plaintiffs, against C. D., defendant. 
 
 The povrers of L. M., as trustee in a deed, &c., having been 
 revoked, and M. N. having been substituted in his stead as such 
 trustee, it is ordered that this suit be discontinued in the name 
 of the said L. M., as one of the plaintiffs therein, and be pro- 
 ceeded in the name of the said M. N., as one of the plaintiffs 
 therein ; and the said M. N., and the plaintiff^ A. B., are required 
 to pay into the court the costs which have been incurred by the 
 defendant C. D., about his defence to this suit, and to enter into 
 bond, with suficient security, payable to the said defendant, con- 
 ditioned* to pay him all costs which may hereafter accrue to the 
 said defendant. 
 
 Note. — If injunction case, see Gait, &c. v Carter, above cited, for further 
 order. 
 
 See section 200 of preceding volume as to order, when party desires to 
 have a plaintiff's name struck out, in order to have him examined as a wit- 
 ness. In such case the plaintiff has a right to strike his name out, and to 
 make him a defendant by amendment, though without the consent of de- 
 fendant, if the co-plaintiff " give security for the costs already incurred." 
 2 Dan'l Ch. Prac. 449. 
 
 The rule which prohibits a defendant from examining the plaintiff as 
 witness, without his consent, does not extend to prevent his so examining 
 Aprockein amy, because otherwise the plaintiff, by making a material wite 
 ness a prochein amy, might rob the other side of the benefit of his testimo : 
 ny ; and accordingly when a defendant had obtained an order at the rolls, 
 for liberty to examme a plaintiff, and also a prochein amy, as witnesses 
 in the cause, upon a motion being made to discharge the order, it was only 
 discharged as to the plaintiff, and not as to the procheiH amy. Dan'l Ch. 
 Pr., Vol. II., p. 267. 
 
VIRGINIA STATE COURTS. 477 
 
 6. Order by county court for removal of partition suit, 
 where the dividend of a party exceeds the value of three 
 hundred dollars. 
 
 Code of Virginia, chap. 124, see. 2. 
 
 A. M. and G. L., plaintiffs, against B. C, J), i!,. and M. N., 
 defendants. 
 
 In the opinion of the court, the distributive siiare of the de- 
 fendant M. N. in the laud in the proceedings mentioned, is of 
 greater amount or value than the sum of tliree hundred dollars, 
 and it is therefore ordered, that this suit be removed to the cir- 
 cuit court of this county, (o?- city, or town.) 
 
 7. Au order for removal of a report of fiduciary accounts 
 from county or corporation court to a circuit court, may be made. 
 Code of Virginia, chap. 133, sec. 33. 
 
 8, An order may be made directing pending case to be struck 
 from docket, where there has been no order or proceeding for 
 more than seven years, but to continue it, wheh in the discretion 
 of the court it is proper. Code of Virginia, chap. 173, sec. 7. 
 
 9. Order appointing guardian ad litem to infant or insane 
 defendants. 
 
 Code of Virginia, chap. 122, sec. 30 : chap. 171, sec. 16 ; 
 chap. 176. 
 
 A. B., plaintiff, against W. B. and N. 0., defendants. 
 
 On the motion of , D. L. is assigned as guardian ad litem 
 
 to the infant defendant N. 0., to defend his interests in this 
 8uit.(o) 
 
 10. Order compelling plaintiff to make election whether he 
 will proceed at law or in equity. See Gibbs v. Perkinson, 4 H. 
 & M. 415. 
 
 11. Rule to speed. 
 
 A. B., plaintiff, against C. D. and other, defendants. 
 The plaintiff in this cause having failed to prosecute his suit 
 by maturing his cause for a hearing as against the defendantd 
 
 (a) The court may compel the guardian ad litem to act, but he will 
 not be liable for costs, and will be allowed his reasonable costs, which the 
 party on whose motion he was appointed will be compelled to pay. Code 
 of Virginia, ch. 171, sec. 16. See 2 Call, 1 ; 2 Munf. 129, 342 ; 4 Munf. 439; 
 2 Hand. 174, 409 j 6 Munf. 99. 
 
 40* 
 
478 ORDERS AND DECREES 
 
 R. K. and others, on the motion of the defendant 0. D., by coun- 
 sel, it is ordered that unless the plaintiff proceed by proper pro- 
 cess to mature this cause for a hearing, at or before the term 
 next after he shall have been served with a copy of this order, 
 the bill of the said plaintiff be dismissed at his costs. 
 
 12. Defendants death suggested and rule to speed the cause. 
 
 (Names of parties.) 
 
 On the motion of the defendant II. K., late sheriff of the 
 county of Hanover, and as such administrator of W. J., de- 
 ceased, by counsel, the deaths of the defendants, T. G., ad- 
 ministrator of J. M. S., deceased, and B. B., executor of B. 0., 
 deceased, are suggested: And on the further motion of the said 
 defendant, by counsel, it is ordered that unless the plaintiffs pro- 
 ceed by proper process to revive and mature this cause for hear- 
 ing, at or before the term next after they shall hare been served 
 with a copy of this order, the bill of the said plaintiffs be dis- 
 missed at their costs. 
 
 13. Order dismissing suit, plaintiff failing to mature his 
 
 suit for a hearing. 
 
 A. B., plaintiff, against C. D., and others, defendants. 
 
 The plaintiff in this cause having been duly served with a 
 
 copy of the order entered herein on the day of , he 
 
 still failing to mature this suit to a hearing against the defend- 
 ants R, K. and others, on the motion of defendant C. D., by 
 counsel, it is ordered that the same be dismissed, and that the 
 plaintiff pay unto the defendant C. D., his costs by him about his 
 defence in this behalf expended. 
 
 14. Order for payment of money to plaintiff pending suit. 
 
 [This is sometimes ordered in the case of a married woman 
 (suing for a divorce, or alimony,) for the support of the plaintiff, 
 and to enable her to prosecute the suit. 11. Bob. Pr. 346. So, 
 also, in the case of an infant. Ibid. 3 John Ch. Eep. 1. And 
 in other cases, 1 Hopkins Ch. Rep. 274, 507.] 
 
 15. Order for party to pay money info court. 
 
 [There are many cases in which such an order should be made. 
 When defendant m his answer admits a sum of money to be in 
 his hands belonging to plaintiff. 3 Bro. C. C. 365 ; 1 New. Ch. 
 202 ; the purchaser of an estate when he has under an agree- 
 
VIRGINIA STATE COURTS. 479 
 
 ment, taken, possession of the estate -without auy engagement on 
 the part of the vendor that he should not be called on to pay the 
 purchase money until a good title can bo made, will be or- 
 dered to pay the purchase money into court. 15 Ves. 317 ; 1 
 New. Ch. Pr. 203. And in many other cases a like order will be 
 made. See New. Oh. Pr. 203.] 
 
 16. Order to lend out money or invest in stock, &!c. 
 
 [For this purpose a commissioner is usually appointed, who 
 should be required to give security agreeably to the provisions of 
 the Code of Virginia, chap. 178, sec. 1. When money standing to 
 the credit of a cause is lent out, it is usual to require reaZ^security, 
 and in some cases both real and personal security is required. 
 The terms of the loan are usually upon the condition that the 
 borrower return the amount of money within sixty days, after he 
 has been required to do so by an order or decree of the court.] 
 
 17. Order changing next friend to make him a witness. 
 (See 1 Rand. 153.) 
 
 G. H., an infant, under the age of tweuty-one years, who sues 
 by M. N„ his next friend, plaintiff, against L. K. and N. R., de- 
 fendants. 
 
 The defendants desiring to examine as a witness in this cause 
 on their behalf, the said M. N., who is the next friend of the in- 
 fant plaintiff, and it appearing by an affidavit filed by the said 
 defendants that the testimony of the said M. N. is material to 
 their defence to this suit, it is ordered that the name of the said 
 M. N. be struck out of the record as next friend, and that J. ,B. 
 be substituted as the next friend of the said infant, to prosecute 
 this suit in his behalf. 
 
 Notes — See Mitf. PI. 25, el seq. In the foregoing order the next friend 
 is struck out, because of the general rule in equity that a plaintiiT cannot 
 be examined as a witness. See sec. 200, fl/^ie. Qitasre : Does not this 
 geneial rule admit of exception in the case of a next friend plaintiff? 
 Daniel thinks this case should be excepted from the operation of the rule: 
 otherwise, says that writer, a party by making a material witness a next 
 friend, might robjjthe other side of the benefit of his testimony. 11 Dan. Ch. 
 Pr 450 ; that writer cites a decision to that effect. Bird v Owen, IVIos. 312. 
 The reason cited by Daniel is unsatisfactory, because the defendant may 
 secure the testimony by having the name of next friend struck out of the 
 record — but should he be put to the inconvenience of delay and the cost? 
 of this procedure ■ . . . 
 
 See Judge Roane's opinion in Burwcll &: ala, v Corbin & als., 1 Rand. 
 150, on doctrines concerning next friend, his responsibilities, &c. See also 
 Hitc's ex'or » Kite's legatees, 2 Rand. 409. 
 
480 ORDERS AND DECREES ' 
 
 18. Order allowing creditor to prefer his claim.{a) 
 
 A. B., who sues, &o., plaintiff, against R. M: adm'r, & als., de- 
 fendants. 
 
 This day, C. N., presented his petition to the court, praying to 
 be admitted a party plaintiff in this suit, and agreeing to contri- 
 bute to the expense of this suit and it is accordingly ordered 
 that the said C. N. be admitted as a party plaintiff, and that he 
 contribute towards defraying the expenses of this suit. 
 
 19. Rule for security for costs by clerk. Code of Virginia, 
 
 chap 185, sec. 2. 
 
 A. B., 2^taintiff, against C. D., defendant. 
 
 The plaintiff in this suit not being an inhabitant of this com- 
 monwealth, the clerk of this court demands of her security for 
 the payment of the costs which may be incurred in the prosecu- 
 tion of the same. And the court doth order that unless such 
 security be given within sixtj days from the date hereof, that the 
 bill of the plaintiff be dismissed at her costs as an act of this 
 day: 
 
 20. Order depriving father and mother of custody of child. 
 
 •James B, exparte. 
 
 In obedience to the order made in tliis case on yesterday, James 
 B., a free person of color, an infant under the age of twenty-one 
 years, was this day again brought before this court ; and the 
 court haying maturely considered of its judgment and decree to 
 be rendered in the premises, is of opinion from the evidence that 
 H. C. B. is a man of most infamous character, and in no respect 
 a proper custodian for his son James, and doth order that he be 
 discharged from the custody of his said father. And the court, 
 further considering that his mother, Keziah, is proved guilty of 
 adultery and to have borne a bastard, now some twelve or eigh- 
 teen months old, and that therefore the said James should not be 
 committed to her care, doth further order that a copy of this de- 
 
 (a) Upon a bill by a creditor of the decedent, in behalf of himself and 
 others, the court will let in creditors at any time while the fund is in court. 
 11 Vesey, 602. 
 
 In these cases there is usually a petition by the creditor, and he is admit- 
 ted a party plaintiiT upon filing his petition and agreeing to contribute to 
 the expense of the suit. See Anderson v. Anderson, &c., 4 H. & M. 475. 
 When case is before the commissioner, however, a creditor may come in 
 and prove hi^ claim without preferring a petition. 
 
VIRGINIA STATE COURTS. 481 
 
 cision be forthwith furnished to cue or more of the overseers of 
 the poor for the city of Richmond. And as tlio said James was 
 committed to the custody of the sheriff of Henrico county, at the 
 instance of tlie petitioner Kcziah, it is ordered that the legal ex- 
 penses to the said sheriff, for keeping the said Jamea B. in his 
 custody, he paid by the said Keziah. And as to the costs of this 
 case, it is ordered that the said Keziah and H. 0. B., do pay the 
 same in equal proportions, that is to say, one-half to be paid by 
 the said 11. C. B., the other half by the said Keziah. 
 
 21. Or del- removing a cause to the circuit court of the United 
 
 States. 
 
 (Names of parties.) 
 
 The defendant P. B., having this day entered his appearance 
 at the suit of the plaintiff, and filed a petition for the removal 
 thereof into the Circuit Court of the United States, for the Fifth 
 Circuit and Virginia District, and also given good and sufficient 
 security for his entering into such court, on the first day of the 
 next session, copies of the process issued against him, pursuant 
 to an Act of Congress, entitled " An Act to establish the Judicial 
 Courts of the United States," the court aecepteth the security 
 and wiU proceed no further in the cause. 
 
 ORDEKS RELATING TO iNSWEES. 
 
 22. Answer referred to commissioner to expunge scandalous 
 
 matter. 
 
 (') (Names of parties.) 
 
 The court doth refer the answer put in by the defendant K. B. 
 to the bill of the plaintiffs, to one of its commissioners, for the 
 purpose of expunging the impertinent and scandalous matter 
 therein contained, and order the said defendant to pay the cost? 
 of executing this order. 
 
 23. Last order set aside ; and commissioner to r^ort scan- 
 
 dalous mutter. 
 
 (=) (Names of parties.) 
 
 For reasons appearing to the court, the order made in this 
 cause on Tuesday last is set aside, and the court doth order, on 
 motion of the plaintiffs by counsel, that the answer put in to the 
 bill of the plaintiffs by the defendant 11. B., be referred to com- 
 missioner 0,, for him forthwith to report to tiie court such mat- 
 
482 ORDKRS AND DECREES 
 
 ters contained in the said answer as shall Ije deemed by him im- 
 pertinent and scandalous. 
 
 24. Exertions to answer sustained. 
 
 (Names of parties.) 
 
 The exceptions to the answer being argued, and the said an- 
 swer being adjudged insufficient, it is ordered that the defendant 
 answer the plaintiff's bill more fully and suiBciently ; and that 
 he pay to the plaintiff his costs, occasioned by such insufficient 
 answer. 
 
 25. Answer and exceptions referred to a commissioner. 
 
 The court doth order, that commissioner L. do look into the 
 plaintiff's bill, the defendant's answer, and the plaintiff's excep- 
 tions taken thereunto, and report forthwith, whether the defend- 
 ant's answer be sufficient in the points excepted to or not. 
 
 26. Report of commissioner confirmed ; and answer adjvdged 
 
 insufficient. 
 
 The court taking into consideration the report of commissioner 
 L., made in pursuance of the order of the 17th day of the pre- 
 sent term, doth confirm the said report, and doth adjudge the 
 answer of the defendant, so far as it is reported, not to be respon- 
 sive to the bill, to be insufficient. And it is further ordered, that 
 the defendant answer again as to those matters, and pay to the 
 plaintiffs all the eosts by them expended about their said excep- 
 tions. 
 
 27. Defendant ordered to be brought into court to answer 
 
 interrogatories. 
 
 On motion of the plaintiff, by counsel, and for reasons appear- 
 ing to the court, it is ordered that the defendant H. L., Jr., be 
 
 brought into court by , a messenger for that purpose, to 
 
 answer interrogatories upon oath ; because the said H. X., Jr., 
 hath failed to file his answer in the time prescribed by law, al- 
 though duly served with process for that purpose. 
 
 PKOCESS or CONTEMPT TO COMPEL AN ANSWER. 
 
 28. Order for attachment. 
 
 (') See^osi order, making absolute rule for attachment against 
 a purchaser, and accommodate to case of answei-. 
 
VIRGINIA STATE COURTS. 483 
 
 £9. Attachment, with proclamaiion awarded. 
 
 (') The attachment sued forth against the defendant for hia 
 contempt in not filing an answer [or, a sufficient answer) to the 
 bills of plaintiff, being returned not found, on the motion of the 
 plaintiff, by counsel, an attachment, with proclamation, is award- 
 ed against the defendant, returnable here, &e. 
 
 30. Commission of rebellion awarded. 
 
 The sheriff of the county of 11. having returned the attaeh- 
 meirt-with proclamation, sued forth against the said C. P., the 
 4th day of October last, that he had caused proclamation to be 
 made as commanded by the said writ, and that the said C. P. is 
 not to be found within his bailiwick, on motion of the plaintiff, 
 by counsel, a commission of rebellion is awarded against the 
 .aid C. P. 
 
 31. Writ of sequestration nisi. 
 
 It appearing to the satisfaction of the court, if J. f., who wan 
 committed to the jail of the county of G., by virtue of a writ of 
 attachment sued forth against him for his contempt in not an- 
 swering the bill of plaintiff in this cause has made his escaps 
 from the said jail, and is now going at large, on motion of W. 
 R., by counsel, the court doth award a writ of sequestration 
 against the said J. F., and appoint J. W. H., or any two of them, 
 commissioners to execute the said writ, unless the said J. F., on 
 
 the first day of the term next, after he shall have been 
 
 •erved with a copy of this order, shew cause to the contrary. 
 
 32. Writ of sequestration awarded absolutely. 
 
 This day came the defendant, W. R. by counsel, and it appear- 
 ing by the affidavit of J. C. L., that J. T. hath been duly served 
 with a copy of the rule entered against him in this cause the 
 23d day of June last, and he failing to appear and shew cause 
 against it, on motion of the defendant, W. R., by counsel, the 
 said rule is made absolute ; and the court doth appoint J. W. R., 
 or any two of them, coifimissioners to execute the writ of seques- 
 tration awarded by the said rule. 
 
 33. Order for Commissioners named in writ of sequestror- 
 tion to sell goods and rent out lands. 
 
 K. B. and C three of the commissioners named in the vrrid of 
 
484 OllDEHS AND DECKEES 
 
 sequestration heretofore issued in this cause, having made return 
 thereof that they have entered upon all the real estate vrhereof 
 the said J. F. was seized and possessed ; and also, that they have 
 taken into their hands all his personal goods and chattels where- 
 of he was found in possession, subject, as they sappose, to the 
 incumbrances annexed to their said return, but which they hold 
 ready for the further order of the court ; on the motion of the 
 said W. R., by counsel, it is ordered that the said commissioners 
 who made the return aforesaid, or any two of them, after giving 
 reasonable public notice thereof, do sell at public auction, all the 
 goods taken by them as aforesaid, for ready money, and that they 
 pay the proceeds thereof into the Bank of Virginia, to the credit 
 
 of , subject to the future order of the court ; and that they 
 
 or any two of them, do henceforth proceed to rent out such of 
 the lands stated in their said return as are not already rented ; 
 and that they, or any one of them, do proceed to the collection 
 of the rents that are, or may become due, for any of the said 
 lands rented, or to be rented, and pay the amount thereof into 
 the said Bank, to the credit of , subject to the future or- 
 der of the court, unless the mortgagees, whose deeds are annexed 
 to the said return, being severally served with a copy of this or- 
 der, can shew cause to the contrary, on or beforr. the first day of 
 the next term after such service. 
 
 PROCESS OV OONTKHVT TO COMPEL OBBMBNCE T" OECREES. 
 
 34. Rule for attachment against purchaser. 
 
 A. 'B., plaintiff, against C. 1)., defendant. 
 
 It appearing to the court, from the report of P. H. of the sale, 
 made by him as commissioner of this court, under the decree 
 entered herein on the eleventh day of February, eighteen hun- 
 dred and forty-nine, that J. R. C. became the purchaser of the 
 property sold under the said decree, and that he hath failed to 
 comply with the terms of his said purchase ; On the motion of 
 the plaintiffs by counsel, the court doth order that an attachment 
 be sued forth against the said J. R. C. for his contempt in failing 
 to pay into the office of discount, and deposit of the Farmers 
 Bank of Virginia at Alexandria, the sum of six hundred and 
 seventy dollars thirty-one and one-fourth cents, on the eighteenth 
 day of May eighteen hundred and forty-nine, that being the 
 amount of the note executed by him for a portion of the said 
 purchase money and negotiable and payable at the said Bank at 
 the date aforesaid, and taken under and in pursuance of the di- 
 rections of the said decree of sale. Unless the said J. R. C. 
 having been previously served with a copy of this order, shew 
 cause to this court to the contrary on Saturday the twenty-fourth 
 day of the present month. 
 
VIRGINIA STATE COURTS. 485 
 
 Attachment made absolute. 
 
 On motion of the plaintiff, by counsel, and for good cause 
 shown, the court doth order that an attachment be sued forth 
 against J. R. C, the purchaser of the property sold under the 
 decree entered in this cause on the 11th day of February 1849, 
 for his contempt in failing to comply with the terms of his said 
 purchase by failing to pay into the office of discount and deposit 
 
 of the Farmers Bank of Virginia at , the sum of 
 
 $670 31i cents on the 18th day of May 1849. 
 
 Notes. — For form of attachment, see p. 414 ante, and follow form there 
 found changing the endorsement to adapt it to this case, thus : " For not 
 
 obeying the decree of requiring within named J. R. C. to comply 
 
 with, &c., (follow! ig terms of the order.)" If the attachment be executed, 
 the body of J. R. C. will be brought in the presence of the court, which 
 will make such order as it deems fit. If attachment be returned "not 
 found,' then pursue the ordinary process of contempt, &c., to a sequestra- 
 tion. See ante p. 414, and acco.nmodite processes to the case of disobey- 
 ing a decree. 
 
 As to process of sequestrators, see 11 Dan Ch. Pr. 715, et seq. 
 
 Order granting leave to re-examine witnesses. 
 
 The plaintiff, by his counsel, this day moved the court for an 
 order allowing him to re-amine and retake the depositions of S. 
 G. and R, H. D., whose depositions have been heretofore taken in 
 this cause, of which motion the plaintiff produced a notice with 
 evidence of the due service thereof upon the defendant, W. J. C, 
 and the said plaintiff also filed his own afSdavit in support of the 
 said motion: On consideration whereof .the court doth grant to 
 the said plaintiff leave to re-examine and retake depositions o S. 
 G. and R. H. D., to be read as evidence on behalf of the said 
 plaintiff in this cause, giving to the defendants reasonable notice 
 of the time and place of retaking the said , depositions, and re- 
 serving to the said defendants all just and legal exceptions to the 
 reading of the same, when retaken. 
 
 Demurrer to a hill adjudged good, and bill dismissed. 
 
 This day, &c., and thereupon, the demurrer of the defendant 
 to the plaintiff's bill being argued, it is the opinion of the court, 
 that the said demurrer is good : Therefore, it is decreed and or- 
 dered, that the said bill be dismissed ; and that the plaintiff pay 
 to the defendant his costs. 
 
 [Sometimes, as stated in preceding volume, the court in ad- 
 judging a demurrer good, allows the party to amend his bill.] 
 
 41 
 
486® FINAL PROCESS 
 
 Leave granted to amend bill. 
 
 On motion of the plaintiff, by counsel, leave is granted him to 
 amend his bill, and to make new parties. And the cause is sent 
 to the rules for that purpose. 
 
 Motion to file a bill of review overruled. 
 
 Upon the motion of the plaintiff, by counsel, for leave to file a 
 bill of review to the decree of this court, pronounced in February 
 last, pursuant to a decree of the Court of Appeals, pronounced 
 on the 8th day of November 1810: On consideration thereof, the 
 court is of opinion, that the errors assigned in said bill are not 
 sufficient to authorise a review of the said decree ; and, therefore, 
 doth reject the motion. 
 
 Cause revived by consent. 
 
 The defendant B. L., having departed this life, by consent as 
 well of the plaintiffs as of H. L. and T. L., executors of the said 
 B. L., deceased, it is ordered that this suit stand revived against 
 the said executors. 
 
 XI. 
 
 Final process in United States Circuit Courts and in 
 Virginia State Courts. 
 
 t'NITED STATES COURTS. 
 
 Fierifacias. 
 
 The President of the United States of America to the Marshal of 
 the Eastern District of Virginia, greeting : 
 
 You are hereby commanded that of the goods and chattels of 
 A. B., you cause to be made the sum of §500, with interest on 
 $496 part thereof, to bo computed at the rate of six per centum 
 per annum, from the 2nd day of November, 1853, until paid, 
 which J. "W., late in the Court of the U. States for the Fourth 
 Circuit and Eastern Distriotof Virginia, hath recovered against 
 
 the said A. B., by a decree in chancery pronounced on the 
 
 day of , whereof the said A. B. is convict, as appears to lis 
 
 of record: And that you have the said sum of money and interest 
 
UNITED STATES COURTS. 487 
 
 before the Judges of said Court at iliohmond, on the Mon- 
 day of next, to render to the said J. W. of the sum of mo- 
 ney and interest as aforesaid, and have then there this writ. 
 Witness, R. B. T., Chief Justice of the Supreme Court of the 
 
 United States,(a) at Richmond, this day of , and in 
 
 the year of the Independence of tlie U. States of America. 
 
 P. M., Ckrk: 
 
 Writ of assistance. (a) 
 
 The President of the United States of America, to the Marshal of 
 the District of , Greeting : 
 
 Whereas, by a certain decree {or order, ) made in our Circuit 
 
 Court of the IJnited States for the Circuit, &c., in a certain 
 
 cause therein depending between A. B. complainant, and C. D. 
 
 defendant, on the day of •, it was, [among other things 
 
 therein contained] ordered, adjudged and decreed by the said 
 court, that the said defendant C. D., should delivered into the 
 possession of the said A. B., a certain lot of land (here describe 
 land;) and whereas a proper affidavit has been made before the 
 
 clerk of our said court, (6) that the said A. B. did on the 
 
 day of , make a demand on the said C. D. for the delivery of 
 
 the said land into his, the said A. B.'s possession, according to 
 the tenor and true intent of the said decree (or order,) and that 
 the said C. D. did thereupon refuse to make such delivery and to 
 obey the said decree (or order ;) therefore, we command you that 
 immediately after receiving this writ, you go to and enter upon 
 the said laud, &c., and that you eject and remove therefrom all 
 and every person or persons holding and detaining the same, or 
 any part thereof, against the said complainant ; and that you put 
 and place the said complainant, or his assigns, in the full, quiet 
 and peaceable possession of the said land, &c., without delay ; 
 and him the said complainant in such possession thereof from 
 time to time maintain, keep and defend, or cause to be kept, 
 maintained and defended, according to the tenor and true intent 
 of the said decree, (or order) of our said coui-t. 
 
 Witness, R. B. T,, Chief Justice of the Supreme Court of the 
 
 United States, (c) at Richmond, this day of , and in 
 
 the year of the Independence of the U. States of America. 
 
 P. M., CUrl: 
 
 (a) See note (b) to form of subpceiia ante, p. 409. 
 
 (a) See IX. Rule Supreme Court U. S., ante, p. 221 ; also sec. 319, 321, 
 of preceding volume. 
 
 (b) Or before any officer legally authorised to administer such affidavit. 
 
 (c) See note (6) to form of subpcena ante, p. 409. 
 
488 ' FINAL PROCESS 
 
 The injunction which formerly preceded the issue of a writ of 
 assistance in the English courts, was as follows : 
 
 George the Second, by the grace of God, of Great Britain, 
 France and Ireland, King, defender of the faith, and so forth. 
 
 To , his counsellors, attorneys, solicitors and agents, and 
 
 every one of them, greeting : Whereas it hath been represented 
 unto us, in our Court of Chancery, on the part of complain- 
 ant, that he hath lately Exhibited his bill of complaint into our 
 
 said Court of Chancery, against you the said defendant, to be 
 
 relieved touching the matters therein contained, and that you the 
 said defendant being served with a writ, issuing outof our said court, 
 commanding you to appear to and answer the said bill, have not 
 obeyed the same, hut are in contempt to an attachment for not appear- 
 ing to and answering the said bUl ; and yet in the meantime you 
 unjustly, as is alledged, prosecute the said complainant at law, 
 touching the matters in the said bill complained of: We, there- 
 fore, in consideration of the premises, do strictly enjoin and com- 
 mand you the said , and all and every, the persons before 
 
 mentioned, under the penalty of tvro hundred pounds, to be 
 levied on your and every of your lands, goods and chattels, to 
 our use, that you and every of you do absolutely desist from all 
 further proceedings at law against the said complainant touching 
 any of the matters in the said bill complained of, until you the 
 said defendant shall have fully answered the said bill, cleared 
 your contempt, and our said court shall make other order to the 
 contrary. But nevertheless, the said defendant is at liberty to 
 call for a plea, and to proceed to trial thereon ; and for want of 
 a plea, to enter up judgment ; but execution is hereby stayed. 
 
 Witness ourself at Westminster, this day of , in 
 
 the year of our reign. 
 
 PROCESS OP CONTEMPT. 
 
 For process of contempt to enforce obedience to decrees, see 
 •'Process of Contempt," ante, p 418. 
 
 VIRGINIA STATE COUKTS. 
 
 Fierifacias. 
 
 The Commonwealth of Virginia, To the of Comity, 
 
 Greeting : 
 
 We command you that of the goods and chattels of A. B., 
 late in your bailiwick, you cause to be made the sum of dol- 
 lars, with interest thereon, &c., which C. D. lately in our Circuit 
 
 Court for the County of , recovered against him by a decree 
 
 in chancery rendered by the said court ; also the sum of 
 
 dollars, which to the said C. D., in the same court, were adjudged 
 for his costs in that suit expended ; whereof the said A. B. is 
 
VIRGINIA STATE COURTS. 489 
 
 convict as appears to us of record, and that yo-u have the said 
 ■■iums of money before the Judge of our said Circuit Court, at the 
 
 Courthouse in the County of , on the first day of the next 
 
 term,{a) to render to the said C. D. of the principal money, inter- 
 est and costs aforesaid. And have then there this "writ. 
 
 Witness, J. E., Clerk of our said Court, this day of , 
 
 A. D. 185 — , and in the year of the Commonwealth of Vir- 
 ginia. J. E., Ckrk. 
 
 Venditioni exponas. 
 
 The Commonwealth, &c.. Greeting : 
 
 We command you that you expose to sale those goods and 
 
 chattels of A. B., to the value of , which, according to our 
 
 command, you have taken, and which remain in your hands un- 
 sold, as you have certified to our judges (or justices,) of our 
 
 court, to satisfy C. D. the sum of , whereof, in our sa,id 
 
 court, he hath recovered execution against the said A. B., by vir- 
 tue of a judgment in the said court, and that you have, &c. 
 Witness, &c., &o. 
 
 Writ of elegit. 
 
 See Code of Virginia, chap. 187, sec. 8, for form of this writ 
 and return thereon. See also chap. 186, sec. 1. 
 
 Process of contempt. 
 
 For process of contempt to enforce obedience to decrees, see 
 sectioia 318 of preceding volume ; also process of contempt, p. 413 
 
 ante. 
 
 a) If returnable to rules, omitting italics, say : " And how you shall 
 have executed this writ, make known at the clerk's ofSce of our said Cir- 
 cuit Court at the rules to be held for the said court, on the first Monday, 
 ia next." 
 
 41- 
 
490 DECISIONS, AC. 
 
 ADDENDA. 
 
 Tlie' following additional cases affecting equity pleading and 
 practice are cited from the 10th volume of Grattan's Reports : 
 
 Decrees. — In a bill by purchaser of land for a rescission of the 
 contract for failure by vendor to convey the land, there being a 
 latent ambiguity in the contract of sale, which can only be cleared 
 up by a survey, it is error to decree a rescission of the contract 
 until a survey is made, and it is thus ascertained whether the 
 vendor can comply vrith his contract. Purcell v. McCleary & 
 als., 10 Grat. 246. 
 
 ■ In a proceeding for the sale of infant's lands under the value 
 of $300, (act Kev. Code 1819, ch. 96, sec. 20 ; Suppl. Rev. Code, 
 eh. 149, sec. 2,) the order or decree is conclusive upon the infant, 
 and he has no day in court to show cause against it upon his 
 coming of age. Parker & als. v. McCoy & als., 10 Grat. 594 ; 
 and though the decree in such case gives the infant a day in 
 court, this will not entitle him as against a bona jfide purchaser 
 under the decree to disturb the sale. Ibid. 
 
 Where the record stated that the cause came on to be heard 
 by consent, and an interlocutory decree was entered directing 
 the sale of the land mentioned in the bill ; and at a subsequent 
 day of the same term, it was suggested that there was another 
 suit pending in the same court by another plaintiff against (the 
 defendant in first suit) and others^ and by consent of parties the 
 suits were amalgamated so far as to be heard together ; and by 
 like consent, it was ordered that the decree for sale in the first 
 suit should be considered as having been pronounced in both 
 causes — held, thafthe consent of both parties merely cured any 
 irregularities as to the time of bringing on the first cause for 
 hearing, the amalgamating the two causes, and in making the 
 decree as entered in the first cause, a decree in both cases with- 
 out a formal entry in each case, and that the consent did not ex- 
 tend to the decree directing the sale of the land, or cure any 
 error therein. Buchanan vs. Clark and als. 10 Grat. 164. 
 
 When a decree in a chancery cause states that the order of 
 publication against an absent defendant has been duly published, 
 it is to be taken in an appellate court, that every thing required 
 by the statute has been done. Moore & als. v. Holt, 10 Grat. 
 284. 
 
 Fraudulent Conveyance. — A creditor at large may maintain u 
 suit in equity to set aside a fraudulent deed conveying real estate. 
 
OF VIRGINIA COTIIIT OF APPKALg. 491 
 
 made by his. debtor, both the debtor and his grantee living and 
 being out of the commonwealth. Peay v. Morrison's cx'ora, 10 
 Grat. 149. 
 
 Injunction. — An injunction refused by a Judge of the Circuit 
 Court, is presented to a Judge of the Court of Appeals, who also 
 refuses it. It may be granted by another Judge of the Court of 
 Appeals. Jaynes & als. v. Brook, 10 Grat, 211. 
 
 A purchaser of laud coming into equity to enjoin a judgment 
 for the purchase money on the ground of defect in the title, 
 though the title is afterwards perfected, is entitled to his costs, 
 and the injunction to be dissolved without damages. Ibid-. 
 Reeves v. Dickey, 10 Grat. 138. 
 
 Though the owner of lands has the legal title and may main- 
 tain trespass, yet equity has jurisdiction to enjoin another party 
 who claims the lands from taking iron ore from it. Anderson r. 
 Harvey's heirs, 10 Grat. 386. 
 
 An injunction tn a judgment at law will not be sustained to 
 allow the defendant at law to set up payments or set-offs which 
 he might have pleaded at law ; and if a discovery was necessary 
 to en ible him to prove them he should have filed his bill of dis- 
 covery in aid of his defence at law ; or he should have filed in- 
 terrogatories to the plaintifi' under the statute. George r. 
 Strange's ex'or, 10 Grat. 499. 
 
 An, injunction to a judgment at law will not be sustained 
 where the defendant at law has failed to make his defence at law 
 from ignorance of the nature of the proceeding against him, and 
 a misapprehension of the steps necessary to be taken in order to 
 subject him. Meem v. Kucker, 506. 
 
 The mere avernment by a plaintiff in his bill asking for an in- 
 junction to a judgment at law, of the facts constituting his ex- 
 cuse for not defending himself at law is not sufloient ; he must 
 prove them. Ibid. 
 
 The damages upon the dissolution of an injunction to a judg- 
 ment, becomes as to the party obtaining the injunction a part of 
 the judgment, and embraced in the lien of the judgment. 
 Michaux's adm'r v. Brown & als., 10 Grat. 112. 
 
 An injunction to inhibit the sale of property by trustees is not 
 a bar to their bringing an action at law to recover the trust pro- 
 perty ; and even if they are guilty of a contempt, that is to be 
 redressed by the Court of Chancery acting upon the parties, and 
 will not prevent the maintenance of the action at law. Nichols 
 V. Campbell, 10 Grat. 660. 
 
492 DECISIONS, AC, 
 
 Plaintiff in a foreign attsiehment may enjoin the sale of the 
 attached effects under an order of a court of law at the suit of 
 creditors proceeding by attachment at law. Moore & als. v. 
 Holt, 10 Grat. 284. 
 
 W. being the owner of a lot in Danville, made a verbal agree- 
 ment with S. for the sale of it to him. S. sold to A., who re- 
 ceived a conveyance for the lot from W., with a general warranty, 
 and executed his bonds to S. for a balance of the purchase money. 
 At the time of. the sale the lot was made more valuable by a 
 change in the street, which street was afterwards returned to its 
 original location by the town authorities. S. having made no 
 representations on the subject to A., having been guilty of no 
 fraud, and having made no warranty of title, is not liable to A. 
 for the damage he has sustained ; and A. cannot enjoin the col- 
 lection of the purchase money. Price's ex'ors v. Ayres, 10 Grat. 
 575. 
 
 A party claiming that he has not been credited for all money 
 paid by him to the sheriff on an execution, may have any injus- 
 tice done to him in that respect corrected by the court from 
 whence the execution issued ; and it is not a case for an injunc- 
 tion and relief in equity. Morrison v. Speer, 10 Grat. 228. 
 
 Partition. — Upon a bill for the partition of land, if the title of 
 the plaintiffs is doubtful, the court, prior to the act. Code, ch. 
 124, sec. 1, p. 526, should have sent the parties to law to try 
 their title ; but by this act a court of equity may decide' upon the 
 title in suits for partition ; and this though the suit was com- 
 menced before the statute was enacted. And after allowing a 
 reasonable time to the parties for trial, should proceed to decide 
 the question, observing the general rules of practice in courts of 
 equity for the purpose of ascertaining facts either by a jury or 
 otherwise, as may be most proper. Currin i- als. v. Spraull & 
 als. 10 Grat. 145.\ 
 
 SUPPLEMENTARY NOTES 
 To JVotela,) p. 447, antt. 
 
 In the form of the decree, as found on p. 446, 447, for abundant caution, a 
 elause is inserted directing that the parties in a partition suit be decreed to 
 execute mutual conveyances of the parcels of land -irverally assigned to 
 them ; and in note (o) to that decree, English authorities are cited estab- 
 lishing, that while partition made at law vests the legal estate in the par- 
 lies to whom land is assigned, a partition in equity vests only the equitable 
 right. It may lie proper to add, that in Virginia, the elause above referred 
 
VIRGINIA STATE COURTS. 493 
 
 to is not usually inserted in decrees of partition. In decrees drawn by 
 accurate and experienced counsel, it is most frequently omitted. The wri- 
 ter has seen no case in which the exnot question determined by the English 
 authorities has arisen before the Virginia Court of Appeals. In all proba- 
 bility, when it does arise, because of the almost universal practice omit- 
 ting the clause above cited, our courts to quiet the numerous titles held 
 under partition decrees so entered, will hold differently from the English 
 cases before mentioned. In a case before Chancellor Keat,(a) that eminent 
 Judge held that under the terms of the New York statute, the clause re- 
 ferred to was not necessary ; the act of New York providing that all parti- 
 tions made under and in virtue of the proceedings had in the Court of 
 Chancery shoU be firm and effectual forever ; and that the final decree of 
 the court for, or upon the partition, &c. should be binding and conclusive, 
 as absolutely as if such partition^ SfC. had been made in a court of law. 
 In that case the decree was : " That the said partition remain firm and 
 effectual forever ; and that the said parties respectively hold and enjoy, in 
 severalty, the said portions of the premises set apart and allotted to them 
 aa aforesaid." 
 
 By our present statute in Virginia, partition should only be made in 
 courts of equity. See Code of Virginia, cliap, 124, sec. 1, and Revisors' 
 Report on this section. 
 
 Top.Wi anU. 
 
 On a tormer page it was stated that a plaintiff cannot by means of a bill 
 to foreclose, obtain at once the whole effect of a suit in equity upon the 
 mortgage and of a suit at law upon the bond — that on the bill to tore- 
 close he will be confined to the mortgage subject, the foreclosure suit not 
 being intended to act in personam . In support of this position, English 
 authorities were alone cited. The doctrine is announced in II. Rob. Pr. 59 , 
 and reference is there had to the authorities found on p. 360 ante. It has 
 been questioned whether this doctrine, thus broadly stated, prevails in Eng- 
 land, and if it does, whether it would prevail here. A writer of acknowl- 
 edged ability and learning affirms the contrary to be the practice in Virginia 
 so far as his own observation and experience extend. See Appendix to 
 Wythe's Reports, edit. 1852, pp. 419, 20. This appendix is from the pen of 
 William Green, Esq., of Culpeper, and contains among other useful essays 
 a learned, elaborate and thorough discussion of the subject of foreclosure 
 of mortgages in Virginia. 
 
 (a) Yoimg &. ux. v. Cooper & als., 3 John. Ch. Rep. 295. 
 
INDEX TO THE PEINCIPAL MATTERS. 
 
 B®" The figures in the body of the following Index refer to 
 
 sections. 
 
 A. 
 
 Abatement of suit, at rules, 7, 10. 
 
 Abatement and revivor, ordinary effects of, upon the proceedings of 
 
 a cause in the English court.*, note, - - 183 
 
 Absent defendants — how proceeded against, 78. When case may be 
 
 tried or heard as to, 81. f , 
 
 Accounts, settlement of before commissionerr, 335, et seq, 437, 445 
 
 Decrees for settlement of, - - - 433, 6 
 
 Of executors, administrators, guardians, &c. 437, 445 
 
 Accident — cases in which equity relieves, - - 370,371 
 
 Action at law, when directed by equity courts, 333. 
 Address of bills, in England, 27 ; in U. S. C. C.,28j inVa. S. C, 29. 
 Administrator, See Accounts, Decrees. 
 Affidavits to bills, when necessary, 62. 
 
 Forms of, - 317, 318 
 
 To pleas when necessary, - 171,401 
 
 Amended t.ilis. See amendments of pleadings. 
 Atnendments of answers. See amendments of pleadings. 
 Amendments of pleadings, 353, 378. 
 
 Amended bills— h hen filed, 354, 355, 356, 357, 358, 359, 360. 
 
 Supplemental bills, 357, 361, 367. 
 
 Bills of revivor 368, 371. 
 
 Bills of revivor and supplement, 372. 
 
 Defences to amended bills, &c. 373, 376- 
 
 Frame of amended bills, &.c. 378. 
 
 Amendments of answers, 378. 
 
 See supplemental bills. 
 Answer, in V. S. C. a defendant may be allowed to file hid answer 
 at any time before final decrees, 72. 
 
 When filed, what the course of plaintiff, 73. 
 
 On replication to, cause set for hearing, 74. 
 
 Exceptions to, set down for argument, 75, 
 
 After second insufBcient answer, defendant may be examined 
 on interrogatories or committed, 75. 
 
 General nature of answer, 132, 7. 
 
 Matter of answer, 138, 146. 
 
 When proper to file, 132, 137. 
 
 Should, beside furnishing the result of an examination, state 
 the nature of defence upon which defendant means to rely, 
 133,134. 
 
 Should state conclusions to he drawn from facts stated, 135, 
 
496 Index to the Principal Matters. 
 
 PAGE. 
 Answer (cont'd,) Same degree of accuracy not'required in an answer 
 that is required in a bill, 136. 
 
 What may be set forth in an answer, 137. 
 
 Required, upon oath, and to be full, true, direct and sufficient, 
 138, 139. 
 
 Need not be made to matter scandalous, impertinent, &c., 
 140, or to any thing which will subject to penalty, 140, or 
 when answer would involve breach of professional confi- 
 dence, 140, or to facts respecting defendants own title, 140, 
 Should be made to statements and interrogatories fully, 141, 
 limitation to this rule, 142. 
 
 When answer should be positive, 143, 
 
 Defendant cannot avoid stating in answer his recollection, &c., 
 144. 
 
 To the letter of the bill not sufficient, 145. 
 
 Should not be impertinent, &.C., 146 ; case of impertinence in 
 England, note 86, sec. 146. 
 
 Case of scandal, &c. in Virginia, note, 247 
 
 Form of answer 147, 153. 
 
 Two or more defendants may join in answer, 147. • 
 
 Title of answer, 148. 
 
 Prepared for five defendants— not received as answer of tao or 
 
 Beginning of, 150. 
 Substance of,\5'3.(a) 
 
 Usually contains a denial of combination, &.c. 151. 
 Should be signed by counsel and defendant, 152. 
 Put in, under oath, saving answers of corporations- aggre- 
 gate, 153. 
 By consent, oath dispensed with, 153. 
 
 Formula of, - - - - 389, 391 
 
 Formula of commencements of, - 389 
 
 W ....n defendant is an infant, • - 389 
 
 When christian names of some of the defendants have bsen 
 
 mistated in the bill, - - 389 
 
 By one in his own right, and as administrator and guardian, 389 
 By husband and wife, - - • 389 
 
 Of a supplemental and further answer - - 389 
 
 Of a plea and answer, - 389 
 
 Formula of introduction to, - 390 
 
 Formula of substance of, - - - 390 
 
 Formula of conclusion of, - - - 390 
 
 Formula of affidavit, - 391, 401 
 
 Forms of answers, ■ 391, 397 
 
 By executor denying assets, &.C., - 391 
 
 To a bill of injunction, - 394 
 
 Of mortgagor to bill of foreclosure, - - 396 
 
 Special rules of practice concerning answers, U. S. C. C. 228, 230 
 Decisions of U. S. Supreme Court concerning answers, 296 
 
 Decisions of Va. Court of Appeals concerning answers, 243, 250 
 When answer amended, and how, 154, 378. 
 When answer contains scandalous or impertinent matter, 
 
 exceptions should be filed, 157. 
 See Exceptions to Answers. 
 Replication to, 158; rejoinder out of use, 158. 
 
 •Wo have English authority alone for this. It has been doubted by 
 eminent counsel whether a similar rule would be adopted here. 
 
Index to the Principal Matters. 497 
 
 PAGE 
 Appeal bond, see Appeals ; also sections 291, 303. 
 Appeals, from decisions of U. S. C. C. to what court taken, 284. 
 
 How obtained, 291. 
 
 From Virginia State Courts, 285, 286, 287, 288, 289, 290. 
 
 How obtained, 292, 3. 
 
 Petition for, 293. 
 
 To whom petition presented, 294, 297. 
 
 Matter and form of petition for, 295, 296. 
 
 When appeal necessary, 283. 
 
 When allowed, 298, 9 ; rejected, 298. 
 
 Where docketed, 300. 
 
 How transferred from one appellate court to another, 301, 2. 
 
 When bond required on, and how and by whom bond taken, 
 303. 
 
 When appeal dismissed, 304. 
 
 Af^er dismission no other appeal allowed, 304. 
 
 When revival on proper, and manner of reviving appeal, 307. 
 
 On the trial of, save in special cases, parol testimony will not 
 be heard, 306. 
 
 On alhrmation of, damages awarded, 310. 
 
 Supreme Court of, in Virginia, its jurisdiction, 280. 
 
 Special Court of, in Virginia, its jurisdiction, 287. 
 Appearance, when voluntary, defendant may plead, answer, dis- 
 claim or demur, 9i,a 
 
 When compulsory, defendant required to answer, 94, 95. 
 Appellate Court, proceedings in, 306 ; when a party dies, 307. 
 
 When court will affirm Jor reverse a decree or order, 308. 
 
 Reasons to be stated in writing, wh«!n Supreme Court of 
 Appeals of Viri^inia reverses or affirms a decree, 309. 
 A.'rsets — equitable, what, and how distributed, - - 371 
 
 What the effect of provisions of Code of Virginia on doctrine 
 
 of legal and equitable assets, - 371 
 
 Bill to marshal, • j 323 
 
 What may be recovered by administrator ilo bonis uon, 371 
 
 Answer of executor denying asset.", 391 
 
 Assistance writ of, 319 ; — form of, 487 
 
 Attachment, see Pkocess of Cohtempt. 
 Attachment with proclamations, see Prockss of Cohtempt. 
 Averment of jurisdiction. See Bills. 
 
 Bail in equity causes in Virginia, - 377 
 
 Bitis, several kinds of, 11, 12, 13, 14. 
 
 Original, 11. 
 
 When original bill should bejiled in V. S. C. 67, and note 1| 
 in U. S. C. C. 265. 
 
 Not original, 11. 
 
 In the nature of original bills, 11. 
 
 Form of, original, 24, 63. 
 
 When taken for confeese.J how cause proceeded in, U. S. C. 
 C. 273. 
 
 Of review, 283, 463. 475, - ^5 
 
 Of revivor, 368, 371, and suppletnent, 372. 
 
 Supplemental, 357, 361, 367. 
 
 Matter of bills, 15, 23. 
 
 Should state plaintiiT's right accurately, 15. 
 
 Shou d contain every essential fact, 16. 
 
 Should shew suflicient matters of fact to sustain plaintiff^s 
 case, 17. 
 
 Should show that parties defendant are liable, &-C., 18. 
 
 In bills, multifariousness to be avoided, 19. 
 
 42 
 
498 Index to the Principal Matters. 
 
 PAGE 
 Bills, Shuuld not contain scandalous or impertinent matter, 20, 
 
 To be signed by counsel, 62. 
 
 When affidavit neceBsary, 62. 
 
 When bill tai^en for confessed, 69. 
 
 Decisions of Court of Appeals of Virginia affecting bills, 250-555 
 
 Decisions of Supreme Court of United States affecting bills 
 in U. S, C. C. - . 29&-8 
 
 OF Review. Decisions of Court of Appeals of Virginia af- 
 fecting, 255-259 
 
 General Formula of - - 312-18 
 
 (1) Address of, pp. 312, 313 ; also sections 27, 32. 
 
 (2) Names of plaintiffs in, pp. 31S, 313; also sections 27, 3=i. 
 
 (3) Statement 111, p. 313; ss. 34, 41. 
 
 (4) Charge of confederacy, p. 313 ; ss. 42, 43. 
 
 (5) Charging part, p. 313 ; ss, 44, 46. 
 
 forms of, taken from Whitworth, pp. 313, 315 — Note. 
 
 (6) Averment of jurisdiction, p. 314; ss. 47, 50. 
 
 (7) Interrogating part, p. 315 ; ss. 51, 55 
 
 (8) Prayer for relief, p. 315 ; ss. 56, 58. 
 
 (9) Prayer for process, p. 316; ss. 59, 60. 
 
 (10) Conchision, p. 316 ;■ ss. 61, 62. 
 
 (11) Affidavits, p, 316, 317, 318 ; e. 02. 
 
 To a bill for injunction, &c. 317 
 To a bill of interpleader, 317 
 To a bill to perpetuate testimony, 317 
 To a bill of discover!'. 317 
 To a cross-bill, 318 
 To a bill of review, - - 318 
 ifCRMS or : Bill of foreclosure of mortgage in U. S. C. C. 319 
 : bill of foreclosure in V. S. C. 321 
 '• ; bill for specific performance of agreement by ven- 
 dor against vendee, 322 
 " ; bill by simple contract creditors against adr^ilnj - 
 
 trators, &c., to marshal assets, - - 323 
 " : bill by a landlord against lessee /i«' years, for 
 waste, with prayer for special relief and for in- 
 junction. 326 
 " ; bill by next of kin for account, 329 
 •' ; bill of injunction to injoin the creation of a nuie.ince, 331 
 ; bill for partition, - - 335 
 " : bill^qf injunction to prevent infringement of eopy- 
 
 riglife,' . - . 335 
 
 ■' ; bill for divorce, 340 
 
 " ; bill to perpetuate testimony, 343 
 
 " ; bill of review, 343 
 
 '■ ; bill by husband of legatees against an ex.cutor 
 
 for payment of legacy, - 344 
 
 " ; bill of interpleader, 345 
 
 " ; bill of discovery, 347 
 
 " ; cross bill, 349 
 
 ; supplemental bill, - 35O 
 
 •' ; amended bill, . 351 
 
 " ; bill of revivor, 35I 
 
 ■' ; Englrshbill, 377 
 
 rORMS OF STATEMENTS IK, - 353^ ^ 
 
 In bills for specific performance by vendor, - - 353 
 
 In bill for lease or sale of land of persons under disability in 
 
 Virginia, - - - 354 
 
 POBMB or isTERnoOATORiaa IB, -354,966 
 
Index to the Principal Matters. 499 
 
 VAGE 
 
 Bills (cont'd.) ■; 
 
 See interrogatories in bills. 
 
 FORMS OF PRAYERS IN, - -356,359 
 
 See Practical Notes on rills and, -359,377 
 
 BoFD, on appeal from Virginia S. C, a. 303. 
 On appeal from I;. S. C. C.,- s. 291. 
 
 Not required in V. S. C, when appeal proper lo protect estate 
 of a decedent, of a convict or insane person, s. 303. 
 Boundaries, settlement of, by courts of equity, in wiiat cases juris- 
 diction exercised, - * - 376 
 Certiorari, - - - 475 
 Charging part of bill, s. 44, 46, usually omitted in U. S. <i: C. 
 
 and V. S. C, s. 46 
 Circuit Courts of Virginia, original jurisdiction, X., appellate 
 
 jurisdiction, 289, 290. 
 Circuit Courts of United States, original jurisdiction, X., a.i- 
 
 pellate jurisdiction, 284. 
 Co-defendants, decrees between, 245, and Tioie. 
 Commissioners is Chancery : Their duties on reference of ac- 
 counts for settlement, 334, 348. 
 Notice of time of settlement, 335 ; how notice served, note 12 
 
 to sec. 335. 
 When in U. S. C. C. tlic relerenco must be presented to com- 
 missioner, 336. 
 Party failing to attend commissioner after notice,subjects him- 
 self to process of contempt, 337. 
 Commissioner may adjourn his proceedings from time to time 
 
 without nciv notice, 338, 
 Report retained by commissioner ten davs after completion, 
 
 in V. S. C. 338. 
 When commissioners in U. 9. C. C. may proceed exparte, 339. 
 Parties may be examined on oath, 340; how examination 
 
 conducted, 340. 
 Parties may be required lo produce books, &,c., 341. 
 How examination of witnesses talien, 342 ; new notice not 
 
 necessary, 342. 
 How attendance of witnesses compelled, 343. 
 On failure to attend, process against witness, 344 ; limitation 
 
 of rule in V. S. C, 345. 
 In what form parties accounting before masters in U. S. C. C, 
 
 are required to bring in accounts, 346, ■• 
 
 What affidavits, may b<! read before masterjMBv S. C. C. 346. 
 How reports made up and returned, 347, 34iP'what necessary 
 
 when master doubts as to any point raisedv»347. 
 Exceptions to reports ■vi\\en allowed, 349; nature of, 351; if 
 overruled costs given in U. S. G. C. 350. 
 Committee — see Bills and Memoranda. 
 Condition of bond on appeal in U. S. C. C, note to sec. 291. 
 Condition of bond on appeal in V, S. C. 303. 
 Consolidation of cross and original suits, 461. 
 Contempt — see Process of Contempt. 
 
 Convict, when appeal is for benefit of, in V. S. C. no bond re- 
 quired, 303. 
 Copyrights, appeals from decisions in U. S. C. C. concerning, 284. 
 Cor^oi'ations, now served with process, 5. 
 
 Aggregate^ answer on oath not required of, 153, 
 
 Process of contempt against, 86. 
 
 Distringas against, 86; form of distringas, note (27,) 86. 
 
500 Index to the Principal Matters. 
 
 Sequeslralion against, cannot be stayed by appearance, St.. 
 CoUKTT AND Corporation Courts of Virginia, their original 
 jurisdiction, Introduction, XI., their appellate jurisdiction, 
 285. 
 Courts, see Cooktt and Corporation Courts, &c.. Circuit 
 Courts of Virginia, Circuit Courts of U. States, Ap- 
 peals, (Supreme Court of,) (Special Court of,) Dis- 
 trict Courts of Virginia- 
 Gross Bills, 14. when necessary to file, 166, 451, 453. 
 
 When brought to obtain discovery or relief, 452, 
 
 Why necessary to file, 453. 
 
 Sometimes required to enable a defendant to avail himself of 
 defence, 454; to enable defendant to obtain decree against 
 a co-defendant, 454. 
 
 Jurisijiction of, not ousted by a dismission of original bill, 455. 
 
 What cross bill should state, 456, 
 
 In a cross bill a party cannot question what he has admitted 
 in his answer, 456. 
 
 Form of, like original bill, 457. 
 
 Form of, - - 349 
 
 Defence to cross bills, 458, 462. 
 
 Plaintiff in original bill, may plead, answer or demur, 458. 
 
 What pleas do not lie, 458, and note (54.) 
 
 Plaintiff in original bill not compelled to answer until cross 
 bill is answered, 459 ; how this priority lost, 459. 
 
 When cross bill taken for confessed, its effect, 460, 
 
 Court may order cross and original suits to be lieard to- 
 gether, 461 . 
 
 Hearing of original eause not suspended, when, 461; 
 
 Sometimes directed at hearing of original bill, 462. 
 Decedent's estates, disposition of assets of, p. 371, see administrator. 
 
 Decrees, distinction between decrees proper and interlocutory or- 
 ders, 237. 
 
 Definition of, 239. 
 
 Either interlocutory or final, 240; what interlocutory? 240, 
 and note (4,) final 1 240, and note (5.) 
 
 First, rarely final, 241 ; course taken in certain cases, 241 ; 
 feigned issues, note {GJ sec. 241. 
 
 When preliminary inquiries directed and by whom made, 242, 
 243. 
 
 Conditional, in WkeMsh Courts, 244; such decrees not made 
 by Virginia Stiiwfcourts, 244. 
 
 Nisi in V. S. C. note to sec. 244. 
 
 May be made by one defendant against another defendant, 
 245 ; limitation of rule, 245. 
 
 Form of, 246, 253. 
 
 (1) date and title, 247 ; in English courts, 247 : in U. S. C. C. 
 and V. S. C. 247. 
 
 (2) Recitals, in EnKl'sh courts 248 ; in U. S. C. C. 249 ; in \'. 
 S. C. 250. 
 
 (3) Ordering part, 251. 
 
 (4) Declaratory part, 252. 
 
 Forms of, in special cases. 4S9, 491 
 
 Decrees in United States Courts, 429,430 
 
 General formula, 249, 429 
 
 Decree for account, _ 429 
 
 Order granting injunction iu copyright, 429 
 
 Decrees perpetuating injunction cases, 43(1 
 
Index to the Principal Matters. 501 
 
 Deckees in VmoiKiA State Courts. 
 
 General formula of decrees, - 430 
 
 Formula of decree in which guardian ad litem assigned infant 
 
 in court, answer filed, &c. 430 
 
 Forauila when absent and unknown defendants and guardian 
 
 assigned infant defendants at rules, 431 
 
 Formula when bill taken for confessed as to defendants, an- 
 swers of the remainder; depositions, &c. - 431 
 Reviving suit against personal representative of one defend- 
 ant and real representations of another, 432 
 Formula of entry in case of a friendly bill and answer, 432 
 Decrees respecting infants, insane persons, S;e. 457, 462 
 Orders on motion for additional security against guardian, 457, 8 
 Infants, plaintiffs, arrived at age, - - 459 
 Orders concerning insane persons. - 459, 462 
 Orders concerning injunctions, 462, 3 
 Order of injunction restraining waste, - 462 
 " of injunction to stay proceedings at law. - 462 
 " dissolving injunction to judgraentand dismissing bill, 463 
 " dismissing bill after dissolution of an injunction, - 463 
 " perpetuating injunction, - 463 
 Decrees concerning husband and wife, - 465, 8 
 Decree for divorce a vinculo, Sfc. - 465 
 Same in a cause in which attorney general was made a party, 466 
 Decree for divorce and alimony, - 467 
 Order for payment to plaintiff during suit for divorce, 467 
 Decrees respecting wills, - 469, 71 
 Decree construing will, - - 469 
 Decree for specific performance, - - 471 
 Decree for specific performance, I 471 
 Another decree do. do. - 471 
 Decrees for accounts, 433, 446 
 Decree for settlement of accounts generally, - 433 
 Decree for settlement of admon. and guardiianship accounts 
 
 of intestate, &c. - - 433 
 
 Decree overruling some exceptions to a report, sustaining 
 a part of one of them and directing payment of balances 
 found due on settlement of administration and guardianship 
 accounts, - - 434 
 
 Decree for settlement of executorial or administration accounts, 435 
 Decree for distribation of estate after return of commissioner's 
 report under last decree, - 435 
 
 Deckees respecting partition, S^c. • 446, 9 
 
 Decree appointing commissioners to allot shares, &c. 446 
 
 Decree confirming commissioners report and directing convey- 
 ances, - - - 446 
 t^' Seenoteto this form on p . 492 
 Decree directing commissioners in another case to allot shares, 447 
 Decree directing sale ; commissioners having reported land in- 
 divisible in krad, ... 448 
 Decrees for foreclosure of mortgages, Sfc. 
 
 Decree for foreclosure of mortgage and sale of property, - 451 
 
 Commissioners appointed by preceding order report sale, 
 
 sale confirmed and decree tor conveyance, - 452 
 
 Decree for payment of plaintiff's debt out of proceeds of sale, 
 
 and directing defendant to check for the residue, - 453 
 
 Decree for account under bill for equity of redemption, &c. 454 
 
 Decree requiring plaintiff (mortgagor) 10 pay mortgagee amount 
 found due, and in default, a sale of premises directed, 4!)i 
 
 42* 
 
502 Index to the Principal Matters. 
 
 Decree in suit for specific performance by assignee for value against 
 
 assi>inor, vendor and vendee, 473 
 
 Orders removing cause from county or corporation courts, 475 
 
 Orders for removal of cause from county to a circuit ci'Urt, - 475 
 
 Order for removal from one circuit court to another, - 476 
 
 Order changing plaintiffs to make them witnesses, - 476 
 
 Order in partition suit moving cause to circuit court, dividend of 
 
 partyexceeding $300, _ - 477 
 
 Order appointing guardian ad litem, 477 
 
 Rule to speed, - - 478 
 
 Defendants death suggested and rule to speed, - 478 
 
 Order dismissing suit after rule to speed, 478 
 
 Order for payment of money to plaintiff pending suit, 478 
 
 Order for party to pay money in court, 479 
 
 Order to lend out money, - 479 
 
 Order changing next friend of plaintiff, &c. • 479 
 
 Order allowing creditor to prefer his claim, 480 
 
 Rule for security for costs, - - 480 
 
 Order depriving father and mother of custody of child, 480 
 
 Order removing cause to a circuit court of the United States, 481 
 
 Orders relating lo answers, 481, 482 
 
 Orders relating to process of contempt to compel answer, - 482,3 
 
 Orders relating to process of contempt to compel obedience to 
 
 decrees, _ - - 484, 5 
 
 Order granting leave to re-examine witnesses, 485 
 
 Demurrer to bill sustained, &c. 485 
 
 Leave granted to amend bill, - - 485 
 
 Motion to file a bill of review overruled, 486 
 
 Revival of cause by consent, - 486 
 
 Decisions of Virginia Court of Appeals affecting decrees in lOth 
 
 Grattan, - - - 490,91 
 
 Decree, nisi, form of, when entered, 68. 
 
 Decision of Appellate Court, entered and execution thereon, 313. 
 Defendants, absent or unknown, how proceeded against in V. S. C. 
 78. 
 When defendant's appearance should be entered in U. S. C. 
 
 C. 271. 
 When required to file his plea, demurrer or answer, 272. 
 If arrestf'd under process of attachment when released, 274. 
 Formerly not bound to answer, unless specially interrogated, 
 in U. S. C. C. 277 ; different rule at present, 242 
 
 Default of appearance, bill taken for confessed, &c., 69. 
 Demurrer, when used, 97 ; nature of 98; what it admits as true in 
 bill, 99. 
 It may be to the relief prayed, the discovery or both, 100, 
 May object to bills for relief, want of jurisdiction in the court, 
 personal disability, want of interest, absence of liability on 
 part of defendant, that the party is not entitled to the relief 
 prayed for, deficiency of the bill, and impropriety of multi- 
 plying suits, or confounding distinct subjects in the bill, 101. 
 Objections bv, to bills for discovery, 102. 
 Form of, 103; in E. C, U. S. C C, V. S. C. 103. 
 General, 104. 
 Form of special, 105. 
 Speaking, nature and effect of, 106. 
 Speciiil rules of in U. S. S. C. and V. C C. 107. 
 When sustained or overruled, 108, 227 
 
 To bills other than original, 109, - 250 
 
 Procedure on, in E. C. in U. S, C. C. in V. S. C, 110, 71. 
 
Index to the Principal Matters. 503 
 
 PAGE 
 Domurier (cont'd) When filed, course of plaintiff, 175; in ciise of 
 neg'ect bv plaintiff, 176. 
 When overruled, in U. S. C. C. 177 ; in V. S. C. 777. 
 When sustained, 178, in U. S. C. C. 178 j in V. SI C. 178- 
 To interrogatories, 229. 
 
 Certificate of counsel necessary in U. S. C. C. 276. 
 Depositions, (see Evidhnoe) how taken in U. S. C. C. 208, 217. 
 How taken in V. S. C. 218, 223. 
 
 Foimof, - 419,28 
 
 DiscLAiMEK, nature of, 159, 194. 
 Distinct from answer, 160. 
 
 Form of, and proceedings on, 161, 162, 163, - 397 
 
 Discontinuance, see Abatement. 
 Discovery, see Bills. 
 
 Dismission of suit at rules, 7, 8, 9, - - 403 
 
 Of suit, plaintiff failing to mature his suit, 76. 
 Of bill, after dissolution of injunction, when, 411. - 463 
 
 Dissolution of injunction, order for, 410; when bill to stand dis- 
 _ missed after dissolution of injunction, 411; appeal from order 
 of dissolution, 412. 
 Distributee's suit against executor, - - 371, 329 
 
 District Coukts of Virginia, appellate jusisdiction of, 288. 
 Distringas, writ of, when issued, 86 ; form of, note (27) to sec. £6. 
 Divorce, form of bill for, . . - 340 
 
 Documents production of, how compelled, 234, 225, 228. 
 Dower, - . - 368 
 
 Equitable assets, see Assets. 
 Equitable jurisdiction, VII. once attaching not lost by the enactment 
 
 of statutes granting a remedy at common law, VII. 
 Equity of redemption, - 361, 454, 456 
 
 Evidence, when introduced in equity, 197, 281 ; rules o(, 198 ; of 
 defendant admissible, 199 i of plaintiffs inadmissible, 199 ; 
 how evidence of plaintiff may be introduced, 200; state- 
 ments of defendant to be taken as true, 201 ; may be contro- 
 verted, 201 ; is taken in writing, 202 ; practice in E. C. 203 j 
 in U. S. C: C.203 ; in V. S. C. 203; need relate only to the 
 points in issue, 204,205; documentary, 206. 
 How taken, 207, in U. S. C. C. 208,209, 210,211, 212,213, 
 
 214 215. 
 Time allowed for taking, 216 ; proceedings when returned to 
 clerk's office, 216; how evidence may be taken before 
 isstie, 217. 
 How taken in V. S. C. 218; a commission when required, 
 219; when depositions are taken, 220 ; when to be returned, 
 221 ; by whom depositions to be taken, 222 ; proceedings 
 when witnesses live beyond the state, 223. 
 Witnesses compelled to attend in U. S. C. C. 224 ; in V. 3. C. 
 
 225 227 228. 
 Productions of documents in U. S. C. C. 224 ; in V. S. C. 226. 
 See (Depositions.) 
 
 Effect of answer as evidence, s. 201, 40l 
 
 Effect of plea as evidence, - 401 
 
 Examination of party — see Bills, Commissioners in Chancery. 
 Exceptions, to answers when filed, ss. 186, 187, in U. S. C. C, s, 2E0. 
 When proper, s. 188, in U. S. C. C, s, 280. 
 How prepared and signed, s. 189. 
 Ferm of, 3.190; p. 398. 
 
 When set for argument in U" S. C. C, s. 191 ; in V. S. C, s, 191. 
 If sustained, ss. 192, 193. 
 
604 Index to the Principal Matters. 
 
 Exceptions to reports — See Commissiohers in Chanceri. 
 ExEcnTioN OF Decree. 
 
 When (or the payment of money, may be enforced in the same 
 way as judgments at common law, s. 316 ; other decrees or 
 orders may be enforced by process of contempt, s. 316 ; and 
 in some cases by writ of assistance, s. 316. 
 See Final Process, 
 
 In U. S. C. C, when decree for performance of specific act, a. 
 
 317; writof attachment, s. 317; writofsequestration, s. 317. 
 
 In V. S. C, in such cases, 5. 318, rule to shew cause, s. 318; 
 
 attachment, s. 318 ; subsequent process of contempt, s. 318. 
 
 Writ of assistance, in English courts, s. 319, in V. S. C, s. 320, 
 
 inU.S.C.C, 8.321. 
 When a person not a party may compel executioH of decree 
 in U. S, C. C, B. 323, when compelled to obey decre in do., 
 s. 323. 
 Execution, writs of, see Final Process. 
 Executors and administrators — See assets, decedents. 
 Fees, of the clerk in appellate courts, s. 312. 
 Feme coverts — sue in equity by next friend, ix. Sea Practiced Notes on 
 
 JBills — Dower, and Husband and Wife. 
 Fieritacias, see Final Process. 
 Final Process. See ExEct/TiON of Decree, Process of Coir- 
 
 TEMPT. 
 
 Form of fieri facias, - - - 488 
 
 " Venditioni exponas. - 489 
 
 " Writ of assistance, 487 
 
 Writ of elegit, - 489 
 
 Foreclosure of mortgages, - 359, 360 
 
 Fraud, -368,369 
 
 Freedom, suit for - - 374 
 
 Guardians ad litem, how and when appointed in U. S. C. C, s. 275. 
 Appointed by the clerk at rules in V. S. C, s, 77, order ap- 
 pointing in term time, . - . 477 
 Hearing, cause m equity, in England, s. 234, in U; S. C. C, s. 234, 
 in V. S. C, a. 234. ' 
 
 Mode ot", similar to course in actions at common law, s. 235. 
 Heir and devisee. See Distributee. 
 
 Husband and wife, decrees concerning. 465, 8 
 
 Practical notes, 468, 9 
 
 See Divorce, Feme Cox ri, also 374 
 
 Idiots and Lunatics, how they should sue, ix. 
 Defendants. See anstcers, demurrers, pleas. 
 
 Inadequacy of price, - - 369 
 
 Infants — sfte^y their next friend, p. IX. (Introduction.) 
 
 " defendants, guardian ad litem to, may be appointed at 
 rules, s. 77, guardian ad litem may be compelled to act, s. 77, ap- 
 pointed in court, - - - , 477 
 Informations, s. 64, 66, - 318, 319 
 Injunctions, see 396, 400, 412 ; also practical notes on rills. 
 
 Bills for should be sworn to, 403 ; form of affidavit, - 319 
 
 Bills for should be filed before process issues, 403 ; note (1,) 
 
 to sec. 67. _ 
 Form of bill of injunction, - . 326, 331 
 
 In U. States Circuit Courts, [LV.] . 232 
 
 Practical notes on injunctions, ^61, 36S 
 
 Order granting injunction, 462 
 
 Order dissolving injunction, - - 463 
 
Index to the Principal Matters. 506 
 
 PAGE 
 Injunctions (cont'd) Order granting injunction in case of copyright, 429 
 Decree for perpetual injunction restraining infringement of 
 
 copyright, - - 430 
 
 Decree for perpetual injunction restraining infringement 
 
 of copyright, and for payment of profits, - 430 
 
 Interlocutory applications, 379; by motion, 379 ; by petition, 379. 
 See motions and petitions. 
 
 Injunctions, and - - 400, SO 
 
 See hills, decrees, and decrees and orders. 
 Interlocutory proceedings, s. 195. 
 Interrogating part of bills: s. 51. 
 
 Interrogatories, special, not now necessary in U. S. C, C, a. 53, nor 
 necessary in V. S. C, s. 54. 
 
 Order to bring in defendant in V. S. C, to answer, s. 82, 87. 
 Demurrer to, s. 229. 
 
 Decisions of Court of Appeals of Virginia affecting interroga- 
 tories, - - - 277 
 Issue, may be of law or fact, or both, s. 196. 
 
 When of fact to be proved by evidence, s. 197. Rules of evidence, 
 s. 198. Party defendant may be required to give evidence, a. 199, 
 Not so as to plaintiff, s. 200. How a co-plaintiff may be introduc- 
 ed as a witness, s. 201. When statement of defendant to be taken 
 as true, a. 201. May be controverted, s. 201. Mode of taking evi- 
 dence in equity, a. 202, in English Courts, s. 203, in U. S. C. C, 
 s. 203, in V. S. C, s. 203. 
 Issues out of Chancery, when directed, ss. 241, 326, how proceeded 
 in, 326, 328, 329, 330, 331, 332. 
 
 Plaintiff in isssiie may suffer non-suit, - 331 
 
 Feigned issues, not directed, - 327 
 
 For trial of usual provision of decree, n. 4 to s. 628, re- 
 strictions imposed. Ibid, 
 On trial of, bill of exceptions will not lie, s. 330. 
 Result of trial of issues, certified, together with any special circum- 
 stances, s. 339. 
 Application for a new trial, to whom made, s. 332. 
 Insane person, when appeal for benefit of no bond required, s. 303. (a) 
 Interpleader— Bills of— 422, 426 ; defence to, 427, 428 j forms of bill, 345 
 Affidavit to bill of, - - - 317 
 
 Demurrer to bill of, - - - 383 
 
 Jurisdiction of the several courts, see titles Circuit Courts of Vir- 
 ginia. County and Corporation Courts of Virginia, Dis- 
 trict Courts of Virginia, Courts of Appeals of Virginia, 
 Circuit Courts of the United States. 
 Jury, at bar of Chancery Court, to try issue, 326. 
 
 In case of issue upon a plea, 179. i ■ 
 
 Justice of the peace may take depositions, 222. 419 
 
 Lending out money ; order directing, - 479 
 
 Lunatic, 77 ; also p. 457, 46 ; and insane defendants. 
 Marriage — see husband and wife. 
 Marshalling assets — bill for, p. 323; see p. 371, 2. 
 Masters — see Commissioners. 
 Memoranda — form offjnstituting suit in V. S. C. 1 ; p. 402, 403, 
 
 (notes.) 
 Mortgages — see foreclosure of mortgages. 
 Motions, 380, 382. 
 
 (a) See note (a) io petitions, post. 
 
606 Index to the Principal Matters. 
 
 Multifariousness, in bills, 19. 
 
 Demurrer for, - - 389 
 
 Names of plaintifis, how set Torth, 30, 31, 32. 
 
 How introduced in England, U. S. C. C. and V. S. C. 33. 
 How introduced in creditor's bill, note 27, to sec 33. 
 No Exeat, writs of— 413, 420. 
 
 Not used in Virginia, 416. 
 
 See bail in equity in Virginia, 377 
 
 Prayer in hill to obtain, in U. S. C. C. - 359 
 
 New trial, motion for, in issues out of chancery, 330. 
 
 When a second or third trial may be granted, 332. 
 Next friend — of married woman, IX. 
 
 Of infant, IX. 
 Notary public may take depositions, 232, - 449 
 
 Notice to adverse party, {on taking out a separate commission in U. 
 
 S. C.) to appear and fill cross interrogatories, 420 
 
 Notice to take depositions in V. S. C. - - 426 
 
 Notice by commissioners of day and place of taking accounts, 335 ; 
 how served when parties reside in Virginia, in V. S. C, note 
 (12) to sec. 335 ; if court so direct in its decree, notice may 
 be given by advertisement, ibid,- when parties reside out of 
 Virginia, notice given by advertisement, ibid. 
 Personal service of notice on parties, or their solicitors required 
 in all cases, in U. S. C. C. note (12) to sec. 335. 
 Order of publication against absent or unknown defendants, 78, 79, 
 
 80, 81. 
 Orders and Decrees, See Decrses' 
 Original bills — see bills. 
 
 In the nature of a supplemental bill, &c., 365, and note. 
 Parceners — see Partition ; also p. 449. 
 Parties to suits in equity, who should be made, VIIL, IX., pp. 230, 
 
 2,281,293,308,9. 
 Parties, when examined on oath before master or commissioner, 
 340, 346 ; how examination conducted, 340, 346 ; if they fail 
 to answer, commissioner to report fact to court, ibid. 
 Required to produce books and papers, &c. before commis- 
 sioner, 341; on failure fact reported, 341. 
 Accounting before master in U. S. C. C. ; their duty, 346. 
 Partnership — see practical notes on, 372 
 
 Peace— bill of, - 376 
 
 Perpetuating testimony — bill for, 342. 
 Petitions— 383. 386 ; what are, 383 ; when filed, 383. 
 Chief requisites, 384. 
 When sworn to and how signed, 385. 
 Of course, what ? 380, 382. 
 
 May be made without notice, 380. 
 Special, what 'i 380, 382. 
 
 Should be made after reasonable notice, 380. 
 ^y whom motions may be made, 381. 
 When petition necessary, 381. 
 Not the practice to institute suits by petition in V, S. C. (a) 
 
 or U. S. C. C. 386. 
 For appeal, 296. 
 
 (o) This is strictly true, yet there are cases in which the Statutes of 
 Virginia have expressly provided that they may be brought to the notice of 
 a court of equity by petition: as, to instance, in the case of a person un- 
 lawfully detained as a slave ; see Code of Virginia, chap. 106; also, a pe- 
 tition by a committee of a lunatic to have his property sold, &c., Code of 
 Virginia, chap. 85, sec. 46 ; also, by claimant of escheated lands, chap. 113, 
 
Index to the Principal Matters. 507 
 
 PAGB 
 
 Pai-li lion— bill for, - 335 
 
 Practical notes, 368, 447, 449 
 
 Order and decrees respecting, 446, 449 
 
 Pleadings— amendments of, 353, 378 
 
 Pleas, 111-131, 173-180. 
 
 Usually entered at rules in V. S. C. 70 ; in U. K. S. C. 265. 
 Issue taken en, 71 ; how tried, 71. 
 Set down for argument, 71. 
 
 General nature of. 111 ; proper defence ibr, 112; not of ne- 
 cessity a single fact, 112. 
 Affirmative states matter not apparent on the bill, 113 ; gene- 
 ral rule 113 ; exceptions, 113. 
 Negative denies the truth of statements contained in the hill, 
 
 113; the latter allowed, 113. 
 Anomalous 114 ; nature of, 114. 
 
 In general must reduce the issue to a single point 115; double 
 plea bad, except by leave, 114 ; rule does not preclude 
 several pleas to different parts of bill, 114. 
 When to be supported by answer and natnre thereof, 116 ; in 
 
 U. S. C. C. 116. 
 May be to the relief, the discovery or both, 117 ; to jurisdic- 
 tion of the court ; to the person of plaintiff or defendant ; 
 in bar of suit ; to the bill, 118. 
 To original bill for J'elief, llS; to ori^^inal bill for discovery, 
 
 119 ; to bills not original, 130. 
 Title of, 120; how introduced, 121 ; extent of, 122 ; in E. C. 
 U. S. C. C. and V. C. C. 123 ; matter relied on and aver- 
 ments, 124; answer, 125; signature, 126; special rules, 
 127. 
 Form of, 128. 
 
 When sustained and overruled, 129, 227 
 
 Procedure on, 131, - 401 
 
 When filed, course of plaintiff, 175 ; in case of neglect by 
 
 plaintiii; 176. 
 When overruled in U. S. C. C, 177 ; in V. S. C. 177, 180. 
 When sustained, 178; in U. S. C. 178 ; in V. S. C. 178. 
 When issue is taken on, in V. S. C. 179 ; in U S. S. C. 179. 
 Certificate of counsel to, necessary in U. S. C. C. 276, 
 Practical notes on attachments in equity, 376 
 
 Practical notes on bail in equity, 377 
 
 Practical Notes os Bills, - 359,377 
 
 For foreclosure of mortgage, 356, 362, 493 
 
 Specific performance, 362, 364 
 
 Discovery, - 364 
 
 Injunction to judgments at law, 364, 366 
 
 Injuncticm to restrain tenant for life from carrying away 
 
 slaves, - 366 
 
 Injunction to restrain waste, 367 
 
 Injunction to stop or prevent a nuisance, ,367, 8 
 
 Injunction to prevent irreparable mischief, 368 
 
 Account, - 368 
 
 Dower, 368 
 
 Partition, - 368,492 
 
 In cases of fraud, 368, 9, 370 
 
 " mistake, - - 370 
 
 see. 9; also, by person having a claim against the commonwealth, chas. 
 46, Bee, 1, Code ot Virginia, 
 
508 Index to the Principal Matters. 
 
 PAGE 
 
 PjtACTicAL NOTES ON BiLts (cont'd) accident, 370 
 
 " trusts, 371 
 
 wills, 371 
 
 " assets of decedents, - 371 
 
 " partnership, 372 
 
 " suretyship, 372 
 
 " assignment, 373 
 
 set-off, - 373 
 
 In suits for freedom, - 374 
 
 In suits by husband and wife, 374 
 
 In cases of infants, - 375 
 
 In cases of idiots and lunatics, 375 
 
 In suits by or against commonwealth, &c. 376 
 
 In suits to settle boundaries, - 376 
 
 Quia timet, - ' 376 
 
 Of peace, - 376 
 
 Pkactical Notes on Decbees. Sec Decrees, pp. 437, 445 ; also 
 
 pp. 449, 451, 452, 453, 455, 457. 
 
 For accounts generally, - - 437 
 
 For accounts of executort, &c. 437, 442, 445 
 
 For accounts of guardians, - 442 
 
 For accounts of trustees, - 445 
 
 For partition, - 447.449,451,491 
 
 For foreclosure of mortgages, 452, 3, 455, 457 
 
 Concerning injunctions, - 464, 5 
 
 Concerning liusband and wife, 468, 9 
 
 Concerning wills, 471 
 
 For specific performance, 471 
 
 Prayer for process in bills — see Bills. 
 
 Prayer for relief in bills — see Bills. 
 
 Proceedings at Roles — in Virginia State Courts, 67, 81, 87, 91. 
 pp. 402, 406. 
 In U. S. C. Courts, 92. 
 Process— A/es»e, in U. S. C. Court. 409, 10, 418 
 
 In V. S. C, - - 410, 418 
 
 Final, in U. S. C. C. and 1^. S. C. - 486, 489 
 
 Process of contempt in Virginia State Courts, 82, 86, 413, 18 
 
 In U. S. C. Courts, 418 
 
 Proclamation — attachment with, - _ - 414 
 
 Production of books, papers, &c., before commissioner required, 341. 
 Publication — see Order of Publication. 
 
 Q^uiaiimei — bill, - 376 
 
 Rebellion, writ of, 415 
 
 Receivers, 397. , 
 
 Record, matters of— when evidence, 200. 
 
 Records, printing of, - 305 
 
 Redemption- Equity of, 361, 454 
 
 Re-examination of witnesses, 232 
 Reference of accounts to masters or commissioners, and proceedings 
 
 under same, - 1)35, 346 
 
 See Accounts. 
 
 Re-hearing of cause, 260, 261. 
 Rejoinder to replication out of use, 185. 
 
 Release of errors at law — directed on granting injunction, 409. 
 Relief— prayer for — see Bills. 
 
 Removal of cause, x. note (4.) - - 481, 475, 476 
 
 Replication— special, out of use, 181; bv what their place sup- 
 plied, 181. 
 General, 181; form of, 181. 
 
Index to th$ J^rincipq,! J^qtfp'S. 509 
 
 PACK 
 Replication, (cont'd.) 
 
 Pla miff in V. S. C. not compelled to fil?, 1§2, l^f 
 
 Plaintiff in U. S. C C. should file 182; consequcnije of not 
 
 filing replication or exceptions, 182. 
 Proper time to file replication, 183, 184. 
 Reports — see CammissionerSf Notice. 
 
 Of masters, &c. how made up and returned, in V. S. C. 347 j 
 
 in U. S. C C. 348. 
 Papers, &c. not to be copied in report to V. S. C. 3fl7 ; such 
 
 matter expunged at commissioners costs, 347. 
 To U. S. C. C, master not to slate or recite aDidavits, deposi* 
 
 tions, &c. 348 ; mode of reference thereto, 3^8. 
 Exceptions to, nature of exceptions, 351 ; who may file ex- 
 ceptions, 351 ; may be taken in V. S. C. either in court *ir in 
 commissioners' omce, 349 ; in U. S. C. C. to be filed in the 
 clerk's office, 349 ; if exceptions overruled in U. S. C. C. 
 party excepting to pay costs to other party, 350. 
 In V. b. C. do nut stand confirmed as of course, 349. 
 In U. S. C. C. if exceptions not filed, within one month after 
 return of report, report stands confirmed, 349. 
 Review— Mils of, 463, 472. 
 
 Defieace to bills of revietv, 473, 475. 
 
 Affidavit to bills of re\iew, 466, - - 3lS 
 
 Revival of suit — when necessary, 88, 89, 
 By scirefacias, 88, 89, 90. 
 
 Form of scirefacias, - - 409, 410 
 
 Revivor— Wis of. 368. 
 
 Bill of revivor and supplement, - 351 
 
 Form of bill of revivor, - 351 
 
 Rule on plaintiff to mature his cause, 76. 
 Rule to plead — when given in V. S. C. 68. 
 Rules — of practice, adopted by U. S Supreme Court for conduct of 
 
 causes in equity in the U- S. Circuit Courts, 219, 242 
 
 In clerk's office in Virginia State Courts, 6, 402, 6 
 
 Sale— order for, - - - 448 
 
 Scandal and impertinence in bills, 20 ; in answers, 146. See Ex- 
 ceptions, 
 Scirefacias — writ of. See Revival-, 
 
 Sequestration — writ of, 84, 416 
 
 .When ordered, - 413 
 
 Set for hearing — suit, by defendant, 7Q, 
 
 Set-off, practical notes on, 373 
 
 Settlement of boundaries, 37fi 
 
 Slaves — .see Freedom. 
 
 Special Court of Appeals — ^jurisdiction of, 287. 
 
 Special relief— prayers for, 356, II 
 
 Specific performance — practical notes to bill for, 362, 364 
 
 Statements in bills, 353, 4'« 
 
 Stating part of hill, 34, 41. 
 
 Subpoena — in United States Circuit Courts, 409 
 
 How and by whom served, 266, 269. 
 IVIemorandum at bottom of, 268. 
 May be sued out separately or otherwise, 267. 
 Suit in equity — how instituted in English courts, 1 ; in V. S. C. 1 ; 
 in U. S. C. C. 1. 
 Abatement of, at rules, in V. S. C. 7, 10. 
 Dismission of, at rules, in V. S. C. 7, 8, 9. 
 Memoranda for, 402, 40)! 
 
 43 
 
•^10 Index to the Principal Matters. 
 
 Suit in Equity, (cont'd.) 
 
 When Buit in equity in V. S. C. may be set for hearing by de- 
 fendant, 76. *■ 
 When euch suit may be heard, though not ready as to all the 
 
 defendants, 76. 
 How suit in equity defended, 93, 166. 
 By demurrer. 97, ilO. 
 By plea. 111, 131. 
 By answer, 132, 158. 
 By discliiimer, 159, 164. 
 By cross bill, 166, 451,462. 
 
 When these defences may be joined in V. S. C 165. 
 Filing of demurrers, pleas, &c. 167, 194. 
 Summons— in V. S. C. 2. - 410 
 
 How executed, 3, 4. 
 How executed on a corporation, 5. 
 How executed on husband and wi/e, note (3) to sec. 3. 
 Supplemental answer, 164, 378. 
 
 fSiipplemeriial hi/Is— when defects in suit may be cured by exhibi- 
 tion of, 354, 361, 362, 364. 
 Will not be allowed to introduce a completely new case, nor 
 to add to the decree what upon hearing the court has ex- 
 cluded from it, 363. 
 What ppccies of facts render supplemental bills necessary, 
 
 364. 
 When such bills unnecessary, may he demurred to, 364. 
 Not uped when plaintiff has assii;ned his whole interest, or 
 been deprived of it by subsequent event, 364 ; in such cnse, 
 original bill in nature of s-upplemeidal bill requiied, 365, 
 and note (18.) 
 What supplemental bills should slate. 366. 
 Exception as regards U. S. C. C. note (19) to sec. 366. 
 When supplemenitil bill may be exhibited by plaintiff in ori- 
 ginal suit against a single defendant, (without uniting other 
 defendants lo ori^jinal bills,) 366. 
 What answer su})plemental bills generally calls for, 366. 
 To file supplemental hill in U. S. C. C. special leave, after due 
 notice neces.sary, 367 ; in V. S. C. no leave required, 367. 
 Surcharge and falsification— see Accounts, 
 
 Suretyship, practical notes on, 372 
 
 Taking bill for confessed, 69, 272. 
 Testimony — see Depositions. 
 
 Trusts — Practical Motes on, 371 
 
 United Stales Courts — see "Rules of Practice, &c." "Proceed- 
 ing:s at Rules," "Appeals," "Decrees," '■ Process," ** Depo- 
 sitions." 
 Unknown defendants^how proceeded against, 76, 81. 
 
 Venditioni exponas— form of; - 489 
 
 Vendor and vendee — see specific performance. 
 Widow — see Dower. 
 
 Wills-' decree construing, - - 469 
 
 Witnesses — examination of before masters or commissioners, 342. 
 
 t^ay be summoned by masteror commissioner, in V. S. C. 343. 
 jflow summoned before master in U. S. C. C. 343. 
 Failing to attend, or refusing to testify, fact reported to court, 
 which will compel attendance and testimony bv process of 
 contempt, 344, 345; special limitation as regards V. S. C. 
 345. 
 AVrita— see Frocess. 
 Writ of asbistance — 319, 323. 
 
 Form of, - - - 487 
 
ERRATA ET CORRIGENDA. 
 
 i6, (p. 4 J 1. 6, for courts read events. 
 57, (p. 23,) I. 10. for course^ read costs. 
 78, (p. 32,) 1. 21, after unknoum, insert on affidavit to that effect, 
 80, (p. 32,) 1. 1, after ireek insert for four successive weeks. 
 112, (p. 51,) I. 4, for bill read plea; do. 8th 1. for they read the plea, 
 ote*to s. 118, (p. 56,) 19th 1. read liability of the defendant to be sued. 
 Notes 74 and 80. on p. 65, should be struck out. 
 §. 261, (p. 125.) 15th 1. for arrested, read corrected. 
 $. 199, (p. 86,) 14th 1. strike out he. 
 
 §. 78 and 80, (p. 32,) notes 18, 20, for chapter 171 read chapter 170. 
 Note {aj p. 320. for more than one defendant read two or more defendants. 
 No. 5, p, 422, for de bene eses read de bene esse. 
 No. 9, p. 477, 3rd 1. after infant, insert (or insane.) 
 No. 3.1, p. 483, 7th 1. J. W. H., should read J., VV., & H. 
 No. 32, p. 483, 6th 1. J. W. R., should read J., W., & R. 
 §. 176, (p. 75, 6.) The omission noted has been supplied in effect by 
 Code of Virginia, chap. 171 $§ 4th and 5th, the latter of which declares 
 among other matters, '" that if the plaintiff shall ai any time after the de- 
 fendant's appearance, fail to prosecute his suit, he shall be nonsuited, and 
 pay the defendant, besides his costs, five dollars." Before such dismis- 
 sion, a rule will be necessary. See 6 4. 
 
 §. 180. For WJih section' reac] 178/A section. 
 
 §. 255. 10th 1. for the Vice Chancel/or^ read a Vice Chancellor, 
 
 F. 360, 14th 1. from the bottom, for mortgagee read mortgagees. 
 
 P. 364, 6th. line from bottom, for were read are. 
 
 P. 371, 2nd. line from bottom, for real read legal.